http://www.okbar.org/obj/pdf/2010/OBJ2010Apr17 by Oklahoma Bar Association

Volume 81 u No. 11 u April 17, 2010

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OFFICERS & BOARD OF GOVERNORS Allen M. Smallwood, President, Tulsa Deborah Reheard, President-Elect, Eufaula Mack K. Martin, Vice President, Oklahoma City Jon K. Parsley, Immediate Past President, Guymon Jack L. Brown, Tulsa Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami Glenn A. Devoll, Enid Steven Dobbs, Oklahoma City W. Mark Hixson, Yukon Jerry L. McCombs, Idabel Lou Ann Moudy, Henryetta David A. Poarch, Norman Ryland L. Rivas, Chickasha Susan S. Shields, Oklahoma City James T. Stuart, Shawnee Molly Aspan, Tulsa, Chairperson, OBA/Young Lawyers Division

events Calendar APRIL 2010 19

OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Andrea Braeutigam (405) 640-2819

OBA Civil Procedure Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: James Milton (918) 591-5229

New Admittee Swearing-In Ceremony; Supreme Court Courtroom; Contact: Board of Bar Examiners (405) 416-7075

OBA Leadership Academy; 11 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Heidi McComb (405) 416-7027

OBA Board of Governors Meeting; McAlester, Oklahoma; Contact: John Morris Williams (405) 416-7000

OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Allison Thompson (405) 840-1661

Association of Black Lawyers Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donna Bacy (405) 424-5510

OBA Young Lawyers Division Board of Directors Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Molly Aspan (918) 594-0595

OBA New Lawyer Experience; 8 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jim Calloway (405) 416-7051

OBA Young Lawyers Division New Admittee Receptions; 5:30 p.m.; Mickey Mantle’s Steakhouse, Oklahoma City and Leon’s in Brookside, Tulsa; Contact: Molly Aspan (918) 594-0595

OBA Mock Trial Committee Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Contact: Judy Spencer (405) 755-1066

Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212

OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Sharisse O’Carroll (918) 584-4192

BAR Center Staff

John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Communications; Craig D. Combs, Director of Administration; Travis Pickens, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Beverly Petry Lewis, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; John Burchell, Information Services Manager; Loraine Dillinder Farabow, Debbie Maddox, Ted Rossier, Assistant General Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Nina Anderson, Manni Arzola, Debbie Brink, Melissa Brown, Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Jeff Kelton, Durrel Lattimore, Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Tracy Sanders, Mark Schneidewent, Robbin Watson, Laura Willis & Roberta Yarbrough

EDITORIAL BOARD Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: P. Scott Buhlinger, Bartlesville; Dietmar K. Caudle, Lawton; Sandee Coogan, Norman; Emily Duensing, Tulsa; Thomas E. Kennedy, Enid; Pandee Ramirez, Okmulgee; James T. Stuart, Shawnee; Leslie D. Taylor, Oklahoma City; January Windrix, Poteau NOTICE of change of address (which must be in writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads, news stories, articles and all mail items should be sent to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. Oklahoma Bar Association (405) 416-7000 Toll Free (800) 522-8065 FAX (405) 416-7001 Continuing Legal Education (405) 416-7006 Ethics Counsel (405) 416-7055 General Counsel (405) 416-7007 Law-related Education (405) 416-7005 Lawyers Helping Lawyers (800) 364-7886 Mgmt. Assistance Program (405) 416-7008 Mandatory CLE (405) 416-7009 OBJ & Communications (405) 416-7004 Board of Bar Examiners (405) 416-7075 Oklahoma Bar Foundation (405) 416-7070

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For more events go to www.okbar.org/news/calendar.htm The Oklahoma Bar Association’s official Web site:

www.okbar.org

THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2010 2008 Oklahoma Bar Association. The design of the scales and the “Oklahoma Bar Association” encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. The Oklahoma Bar Journal (ISSN 0030-1655) is published three times a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER: Send address changes to THE OKLAHOMA BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscriptions are $55 per year except for law students registered with the Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.

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¿Habla Español?

Ask A Lawyer Town Hall Forum

The town hall forum will allow panelists to answer questions and discuss issues on the topics of consumer protection, children and the law and child support.

We need you! Spanish-speaking attorneys are needed to give free legal advice on Ask A Lawyer day. Non-attorney translators are also needed. The OBA is reaching out to the Latino community, so we expect to hear from Spanish-speaking callers.

When: Thursday, April 29 9 a.m. – 9 p.m. (two-hour shifts) OETA Studios in Oklahoma City and Tulsa

To sign up: Oklahoma City Connie Creed • (405) 236-8421 ccreed@okcbar.org

Taping is set for:

Friday, April 23 Noon – 3 p.m. OETA Studios 7403 N. Kelley Ave. Oklahoma City The forum is open to all OBA members and to the public. If you’re interested in attending, RSVP to AskALawyer@okbar.org. If you are interested in asking a question during the town hall forum, please submit the question in writing along with your RSVP. If your question is chosen, you will be notified at the taping and will be given an opportunity to ask your question during the panelist portion of the program. Attire is business casual.

Tulsa Dan Crawford • (918) 796-5790 dan@dlcrawfordlaw.com

¡Alli los miramos! 980

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table of

contents April 17, 2010 • Vol. 81

• No. 11

page 979 Events Calendar 982 Index to Court Opinions 986 Supreme Court Opinions 1006 2010 Sovereignty Symposium Agenda 1014 Court of Criminal Appeals Opinions 1026 Court of Civil Appeals Opinions 1061 Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court No. 104,004 OKLAHOMA DEPARTMENT OF SECURITIES ex rel. IRVING L. FAUGHT, Administrator, and DOUGLAS L. JACKSON, in his capacity as the court appointed receiver for the investors and creditors of Schubert & Assoc. and for the assets of Marsha Schubert, individually, and doing business as Schubert & Associates, and for Schubert & Associates, Plaintiffs/Appellees, v. R. KURT BLAIR, WENDY B. BLAIR, NEIL SHEEHAN, and ROBERT RAINS, Defendants/Appellants, v. ROBERT W. MATTHEWS, ET AL., Defendants. No. 104,161 OKLAHOMA DEPARTMENT OF SECURITIES ex rel. IRVING L. FAUGHT, Administrator, and DOUGLAS L. JACKSON, in his capacity as the court appointed receiver for the investors and creditors of Schubert & Associates. and for the assets of Marsha Schubert, individually, and doing business as Schubert & Associates, and for Schubert & Associates, Plaintiffs/Appellees, v. KENNETH YOUNG, LESLIE YOUNG, K. R. LARUE, DANA LARUE, SCOTT WILCOX, RODNEY MARTIN, WANDA MARTIN, RAYMOND LAUBACH, DAN JACKSON and CRYSTAL JACKSON, Defendants/Appellants, v. ROBERT W. MATTHEWS, ET AL., Defendants. No. 104,262 (Cons. w/104,304) OKLAHOMA DEPARTMENT OF SECURITIES ex rel. IRVING L. FAUGHT, Administrator, and DOUGLAS L. JACKSON, in his capacity as the court appointed receiver for the investors and creditors of Schubert & Associates. and for the assets of Marsha Schubert, individually, and doing business as Schubert & Associates, and for Schubert & Associates, Plaintiffs/Appellees, v. KENNETH LARUE, ARTHUR PLATT, YVONNE PLATT, MARVIN WILCOX, and PAMELA WILCOX, Defendants/Appellants, v. ROBERT W. MATTHEWS, ET AL., Defendants. No. 105,682 OKLAHOMA DEPARTMENT OF SECURITIES ex rel. IRVING L. FAUGHT, Administrator Plaintiff/Respondent, v. BARRY POLLARD and ROXANNE POLLARD, Defendants/Petitioners................................. 9 8 6 2010 OK 31 STATE OF OKLAHOMA, ex rel. OKLAHOMA CORPORATION COMMISSION; STATE OF OKLAHOMA, ex rel. BROOKS MITCHELL, Director of Administration of the Oklahoma Corporation Commission; STATE OF OKLAHOMA, ex rel. GARY WALKER, Director of the Oklahoma Petroleum Storage Tank Division; and STATE OF OKLAHOMA, ex rel. ROBYN STRICKLAND, Administrator of The Oklahoma Petroleum Storage Tank Release Environmental Cleanup Indemnity Fund, Plaintiffs/Appellees, v. JOE McPHERSON; GIBBLE OIL COMPANY; AMERICAN NATIONAL BANK; MARION & MGRT GUILLIAMS; DON PUGH; ROBERT H. MEINDERS; ARMSTRONG TRANSFER & STRG; ORALEAH BAILEY; SHEPHARD OIL COMPANY; HOGAN PROPERTY; PENLEY OIL, JEFFREY CHAPPELL; AMIS MATERIALS; SAKIB CORPORATION; CHARLES REX MOSSLER; DAVID NETHERY; GODDARD CONCRETE; UNITED CO-OP CORPORATION; MENZ OIL COMPANY; LIONEL DISTRIBUTION;, INC.; W & W SERVICE CENTER; J & J PETROLEUM COMPANY; SOUTHWESTERN BANK & TRUST; 74TH & PENN PARTNERS, INC.; VINH VAN CAO; MITZI BARNES; LEOLA CASEY; UNION BANK & TRUST; FRED JONES INDUSTRIES; ALCO DOOR & WINDOW; NOBLE COUNTY SCHOOLS; BANK ONE; SHAMGAR, INC.; BREWER CONSTRUCTION; ZIAD AL FANDI; GREAT PLAINS FINANCIAL, INC.; BARNEY U. BROWN TRUST; RED ROCK DISTRIBUTING CO.; RED ROCK PETROLEUM CO.; SAVE-A-STOP, INC.; FIRST UNITED BANK; RYDER TRUCK RENTAL; S & F INVESTMENT; ROBERT W. MOORE; EARNEST & ELDEAN TIGUE; OKLAHOMA CITY AIRPORT TRUST; JAMES & LARETTIA HALE; JIM DAVIS OIL COMPANY; AMERICAN SANITATION, INC.; LINDA JOHNSTONE; GARY SPENCER; GAWEY ENTERPRISES; DONNY BURNS; AVIS RENT-A-CAR; RAYMA K. BREWER; DEL PAINT MANUFACTURING; CONE SOLVENTS; OKLAHOMA COUNTY; JACK MASTERS, INC.; and J & J EXPRESS LUBE, INC., Defendants/Appellees, v. STATE OF OKLAHOMA, ex rel. RACHEL LAWRENCE MOR and CHARLES WRIGHT, Intervenors/Appellants. No. 104,337................................................................................................................................. 9 8 7

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2010 OK 26 DARLA K. PRICE, Individually, and as the Surviving Spouse of PERRY KEITH PRICE, Deceased, Plaintiff/Appellant, v. CATHRYN L. HOWARD, CYNTHIA LYNN HENNING and CHARLES J. HOWARD, JR., Independent Co-Executors of the Estate of CHARLES JAMES HOWARD, M.D., Deceased; The Estate of CHARLES JAMES HOWARD, M.D., Deceased; CATHY ANN OLSEN, Independent Administratrix of the Estate of JON PETER OLSEN, Deceased; The Estate of JON PETER OLSEN, Deceased; DAVID HOBZA, and SERVICENTER, INC., Defendants/ Appellees. No. 105,943........................................................................................................................ 9 9 4 2010 OK 32 STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. WALTER D. MURDOCK, Respondent. SCBD 5542................................................... 9 9 4 2010 OK 33 MEL JEAN WEBER, as Personal Representative of the Estate of Tom Ruble; DONALD CLAUSSEN; and ZELMA BEERS, Individually and as Class Representatives, Plaintiffs/Appellees, COLEEN MANNERING; CHARLES KENNETH DODSON, Trustee of the Charles Kenneth Dodson Revocable Trust Dated the 17th day of April, 1998; and DON GARNER, Individually and as Class Representatives, Intervenor Plaintiffs/Appellees, v. MOBIL OIL CORPORATION, a corporation; EXXONMOBIL OIL CORPORATION, a corporation; MOBIL EXPLORATION AND PRODUCING, NORTH AMERICAN, INC., a corporation; MOBIL EXPLORATION AND PRODUCING, U.S., a corporation; and MOBIL NATURAL GAS, INC., a corporation, Defendants/Appellants. No. 106,241................................................................................................ 9 9 9

Index To Opinions Of Court of Criminal Appeals 2010 OK CR 7 JACK AARON LOGSDON, Appellant, v. STATE OF OKLAHOMA, Appellee. Case No. F-2008-78...................................................................................................................... 1014

Index To Opinions Of Court of Civil Appeals 2010 OK CIV APP 26 ASSET ACCEPTANCE, LLC, Plaintiff/Appellant, vs. JENA M. SMITH, Defendant/Appellee. Case No. 106,957.......................................................................... 1026 2010 OK CIV APP 27 JULIE ANN MORRIS, Plaintiff/Appellant, vs. CITY OF OKLAHOMA CITY, CITY AIRPORT TRUST, ATLANTIC COAST AIRLINES, and UNITED AIRLINES, INC., Defendants/Appellees. Case No, 107,368...................................................... 1027 2010 OK CIV APP 29 ALVIS C. HIGGINS, Plaintiff/Appellant, vs. STATE OF OKLAHOMA, Defendant/Appellee. Case No. 106,529.......................................................................... 1029 2010 OK CIV APP 33 ALEA LONDON LTD., Plaintiff/Appellant, vs. CANAL CLUB, INC., d/b/a THE WILD COCONUT, an Oklahoma Corporation; CHARLENA J. KENNEDY, Individually; and ERICA L. GILMORE, Individually, Defendants/Appellees, and Tanya Wistrand, Individually; Stephen Wistrand, Individually; Diversified Historic Properties, Inc., an Oklahoma Corporation, Defendants. Case No. 107,139............. 1032 2010 OK CIV APP 31 IN THE MATTER OF L.H.; N.W.; S.W.; S.W.; and S.C., Alleged Deprived Children, CRYSTAL WHITE, Appellant, ROBERT WHITE, Defendant, vs. THE STATE OF OKLAHOMA, Appellee. Case No. 107,118....................................................... 1036 2010 OK CIV APP 30 PAULA CROCKETT, Plaintiff/Appellant, vs. CENTRAL OKLAHOMA TRANSPORTATION & PARKING AUTHORITY, Defendant/Appellee. Case No. 106,966.......................................................................................................................................... 1037

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2010 OK CIV APP 32 TERRI L. COPE, Plaintiff/Appellee, vs. RICH COPE, Defendant/ Appellant. No. 107,126...................................................................................................................... 1043 2010 OK CIV APP 36 AMANDA E. MORAN, Plaintiff/Appellant, vs. EDWARD D. JONES & CO., L.P., a Foreign Corporation; EDWARD JONES FINANCIAL COMPANIES, L.L.L.P., a Foreign Corporation; EDWARD JONES TRUST COMPANY, a Foreign Corporation; EDWARD JONES INVESTMENTS, a Foreign Corporation; and GARY W. MORAN, an Individual, Defendants/Appellees. Case No. 107,679....................... 1045 2010 OK CIV APP 35 ACES A/C SUPPLY NORTH, a Texas Corporation, Plaintiff/ Appellant, vs. SECURITY BANK, an Oklahoma Banking Corporation, Defendant/ Appellee, And TERRELL HEATING & AIR CONDITIONING, INC., an Oklahoma Corporation, and BRENT TERRELL, Defendants. Case No. 107,346 ....................................... 1049 2010 OK CIV APP 37 TRADERS INSURANCE COMPANY, Plaintiff/Appellant, vs. JULIE JOHNSON and BILLY JOHNSON, Defendants/Appellees. Case No. 107,812............ 1052 2010 OK CIV APP 28 BAYS EXPLORATION, INC., Plaintiff/Appellant, vs. DOUGLAS JONES, Defendant/Appellee. Case No. 106,475........................................................................... 1054 2010 OK CIV APP 34 IN THE MATTER OF E.G., A DEPRIVED CHILD: DARLA GILES, Appellant, vs. THE STATE OF OKLAHOMA, Appellee. Case No. 107,343............................ 1057

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Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2010 OK 16 Case Numbers 104,004; 104,161; 104,262 (Consol. w/104,304); 105,682 As Corrected: April 6, 2010 No. 104,004 OKLAHOMA DEPARTMENT OF SECURITIES ex rel. IRVING L. FAUGHT, Administrator, and DOUGLAS L. JACKSON, in his capacity as the court appointed receiver for the investors and creditors of Schubert & Assoc. and for the assets of Marsha Schubert, individually, and doing business as Schubert & Associates, and for Schubert & Associates, Plaintiffs/ Appellees, v. R. KURT BLAIR, WENDY B. BLAIR, NEIL SHEEHAN, and ROBERT RAINS, Defendants/Appellants, v. ROBERT W. MATTHEWS, ET AL., Defendants. No. 104,161 OKLAHOMA DEPARTMENT OF SECURITIES ex rel. IRVING L. FAUGHT, Administrator, and DOUGLAS L. JACKSON, in his capacity as the court appointed receiver for the investors and creditors of Schubert & Associates. and for the assets of Marsha Schubert, individually, and doing business as Schubert & Associates, and for Schubert & Associates, Plaintiffs/Appellees, v. KENNETH YOUNG, LESLIE YOUNG, K. R. LARUE, DANA LARUE, SCOTT WILCOX, RODNEY MARTIN, WANDA MARTIN, RAYMOND LAUBACH, DAN JACKSON and CRYSTAL JACKSON, Defendants/Appellants, v. ROBERT W. MATTHEWS, ET AL., Defendants. No. 104,262 (Cons. w/104,304) OKLAHOMA DEPARTMENT OF SECURITIES ex rel. IRVING L. FAUGHT, Administrator, and DOUGLAS L. JACKSON, in his capacity as the court appointed receiver for the investors and creditors of Schubert & Associates. and for the assets of Marsha Schubert, individually, and doing business as Schubert & 986

Associates, and for Schubert & Associates, Plaintiffs/Appellees, v. KENNETH LARUE, ARTHUR PLATT, YVONNE PLATT, MARVIN WILCOX, and PAMELA WILCOX, Defendants/Appellants, v. ROBERT W. MATTHEWS, ET AL., Defendants. No. 105,682 OKLAHOMA DEPARTMENT OF SECURITIES ex rel. IRVING L. FAUGHT, Administrator Plaintiff/Respondent, v. BARRY POLLARD and ROXANNE POLLARD, Defendants/Petitioners. CORRECTION ORDER ¶1 The Opinion of the Court filed herein on February 23, 2010, shall be corrected as follows: 1. The appearances of counsel for the Oklahoma Department of Securities listed in the opinion shall be changed from: Melanie Hall, Gerri Stuckey, and Amanda Cornmesser, Oklahoma City, Oklahoma for Appellee Oklahoma Department of Securities in Nos. 104,004; 104,161; and 104,262 (Consolidated with No. 104,304). To the corrected form which shall state: Melanie Hall, Gerri Kavanaugh, and Amanda Cornmesser, Okahoma City, Oklahoma for Appellee Oklahoma Department of Securities in Nos. 104,004; 104,161; and 104,262 (Consolidated with No. 104,304). AND, the appearances listed in the opinion shall be changed from: Melanie Hall, Gerri Stuckey, and Amanda Cornmesser, Oklahoma City, Oklahoma for Appellee Oklahoma Department of Securities in No. 105,682. To the corrected form which shall state: Melanie Hall, Gerri Kavanaugh, and Amanda Cornmesser, Okahoma City, Oklahoma for Respondent, Oklahoma Department of Securities in No. 105,682. ¶2 The Opinion shall otherwise remain as filed February 23, 2010.

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¶3 DONE BY ORDER OF THE SUPREME COURT THIS 6th DAY OF APRIL, 2010. /s/ James E. Edmondson CHIEF JUSTICE 2010 OK 31 STATE OF OKLAHOMA, ex rel. OKLAHOMA CORPORATION COMMISSION; STATE OF OKLAHOMA, ex rel. BROOKS MITCHELL, Director of Administration of the Oklahoma Corporation Commission; STATE OF OKLAHOMA, ex rel. GARY WALKER, Director of the Oklahoma Petroleum Storage Tank Division; and STATE OF OKLAHOMA, ex rel. ROBYN STRICKLAND, Administrator of The Oklahoma Petroleum Storage Tank Release Environmental Cleanup Indemnity Fund, Plaintiffs/Appellees, v. JOE McPHERSON; GIBBLE OIL COMPANY; AMERICAN NATIONAL BANK; MARION & MGRT GUILLIAMS; DON PUGH; ROBERT H. MEINDERS; ARMSTRONG TRANSFER & STRG; ORALEAH BAILEY; SHEPHARD OIL COMPANY; HOGAN PROPERTY; PENLEY OIL, JEFFREY CHAPPELL; AMIS MATERIALS; SAKIB CORPORATION; CHARLES REX MOSSLER; DAVID NETHERY; GODDARD CONCRETE; UNITED CO-OP CORPORATION; MENZ OIL COMPANY; LIONEL DISTRIBUTION;, INC.; W & W SERVICE CENTER; J & J PETROLEUM COMPANY; SOUTHWESTERN BANK & TRUST; 74TH & PENN PARTNERS, INC.; VINH VAN CAO; MITZI BARNES; LEOLA CASEY; UNION BANK & TRUST; FRED JONES INDUSTRIES; ALCO DOOR & WINDOW; NOBLE COUNTY SCHOOLS; BANK ONE; SHAMGAR, INC.; BREWER CONSTRUCTION; ZIAD AL FANDI; GREAT PLAINS FINANCIAL, INC.; BARNEY U. BROWN TRUST; RED ROCK DISTRIBUTING CO.; RED ROCK PETROLEUM CO.; SAVE-A-STOP, INC.; FIRST UNITED BANK; RYDER TRUCK RENTAL; S & F INVESTMENT; ROBERT W. MOORE; EARNEST & ELDEAN TIGUE; OKLAHOMA CITY AIRPORT TRUST; JAMES & LARETTIA HALE; JIM DAVIS OIL COMPANY; AMERICAN SANITATION, INC.; LINDA JOHNSTONE; GARY SPENCER; GAWEY ENTERPRISES; DONNY BURNS; AVIS RENT-A-CAR; RAYMA K. BREWER; DEL PAINT Vol. 81 — No. 11 — 4/17/2010

MANUFACTURING; CONE SOLVENTS; OKLAHOMA COUNTY; JACK MASTERS, INC.; and J & J EXPRESS LUBE, INC., Defendants/Appellees, v. STATE OF OKLAHOMA, ex rel. RACHEL LAWRENCE MOR and CHARLES WRIGHT, Intervenors/ Appellants. No. 104,337. April 6, 2010 ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY ¶0 Taxpayers sent the Corporation Commission a qui tam demand and notice complaining of payments made from the Oklahoma Petroleum Storage Tank Release Environmental Cleanup Indemnity Fund. The Commission and employees thereof filed a declaratory judgment action seeking an adjudication of the validity of those payments. Taxpayers sought to intervene in the action and the Hon. Daniel L. Owens, District Judge, denied the motion to intervene. Taxpayers appealed and the Court retained the appeal. We hold that the nature of Taxpayers’ allegations of impropriety and the opposition of the Commission to both alleged facts and law raised by Taxpayers are sufficient to show that Taxpayers met their factual burden in the trial court and the trial court’s order denying the motion to intervene must be reversed. ORDER OF THE DISTRICT COURT IS REVERSED; CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION James R. Moore, Sue Wycoff, Moore & Vernier, P.C., Oklahoma City, OK, for Appellants. Kieran D. Maye, Jr., Sarah M. Jernigan, Miller Dollarhide, Oklahoma City, OK, for Plaintiffs/ Appellees. Reid E. Robinson, Amy D. White, McAfee & Taft, P.C., Oklahoma City, OK, for Appellee Ryder Truck Rental, Inc. Leslie V. Batchelor, Center for Economic Development Law, Oklahoma City, OK, and William West, Special Assistant Municipal Counselor, Oklahoma City, OK, for Appelee Oklahoma City Airport Trust. Shawn D. Fulkerson, Richard E. Parrish, Fulkerson & Fulkerson, P.C., Oklahoma City, OK, for Appellees Joe Mcpherson, et al. EDMONDSON, C. J.

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¶1 This case involves an attempt by qui tam taxpayers to intervene in a declaratory judgment action which was brought by officials in response to their qui tam demand and notice. We hold that the order denying the motion to intervene was in error and reverse the order with instructions for further proceedings. ¶2 Several individuals and entities made claims against the Oklahoma Petroleum Storage Tank Release Environmental Cleanup Indemnity Fund. The Oklahoma Legislature created the Petroleum Storage Tank Release Indemnity Program in 1989. Oklahoma Statutes Title 17 §§ 350-358, inclusive.1 The Indemnity Program included the Petroleum Storage Tank Release Environmental Cleanup Indemnity Fund (Indemnity Fund) to pay statutorily specified expenses related to rehabilitating sites polluted by petroleum from petroleum storage tank systems. 17 O.S. §§ 352(5), 353. The Oklahoma Corporation Commission has jurisdiction over the Petroleum Storage Tank Release Environmental Cleanup Indemnity Fund and Program. 17 O.S.2001 § 52.2 The claims made against the Indemnity Fund by the Defendants herein totaled approximately $8,900,000.00. While the claims were pending the Commission settled the claims for payments in the amount of approximately $4,500,000.00, “inclusive of interest, administrative and litigation costs and attorney’s fees, and any other costs associated with the preparation, filing and resolution of the subject disputes.” ¶3 Intervenors (Taxpayers) gave the Oklahoma Corporation Commission (Commission) a qui tam notice and demand claiming that the Commission, through certain employees, made payments of public funds to individuals when those employees knew that such payments were not due and owing to those individuals. Taxpayers challenged the $4,500,000.00 payments agreed to by the Commission. ¶4 The Commission (and certain Commission employees) then filed a petition in the District Court and requested a declaratory judgment determining the payments to be valid, or in the alternative, a declaratory judgment determining the payments to be invalid and an order requiring the return of these payments to the Commission. ¶5 Taxpayers then sought to intervene in the District Court action. Taxpayers’ allegations state that the Commission, through certain 988

specified individuals, improperly agreed to pay 4.5 million dollars to a variety of contract consultants, petroleum tank owners, and two lawyers. They state that various employees of the Commission reviewed the claims for payment and denied the claims. However, different named Commission employees subsequently entered settlement agreements that approved the claims for payment. They also allege that the money was paid “for political purposes.” ¶6 Taxpayers allege that examples of the impropriety of the settlement agreements and payments are shown by the involvement of Richard Sealy and two lawyers, Richard Parrish and Shawn Fulkerson. Taxpayers state that the payments to lawyers Parrish and Fulkerson were “rationalized as ‘attorney fees’ and ‘litigation costs.’” Taxpayers then allege that these attorneys “did not prosecute any of these case [sic] in the Commission’s administrative court and their clients have never been determined to be prevailing parties.” Taxpayers challenge whether the Indemnity Fund may be used for attorney fees and litigation costs. ¶7 Taxpayers allege in the qui tam demand and notice that the Commission entered into settlement agreements with Richard Sealy, and “[a]t the time agency officials executed the agreements and began transferring the public funds, Sealy was charged with thirteen counts of offering false instruments to the State (specifically, to the Petroleum Storage Tank Division’s Indemnification Fund), making fraudulent claims against the State and conspiring to defraud the State of Oklahoma.” Taxpayers allege that “[a]t the time the agency officials began the transfer of public funds, the officials had complete knowledge of the charges and indictment against Sealy.” Taxpayers allege that Sealy pled guilty to the charges against him and was convicted of crimes relating to fraudulent claims against the Indemnity Fund. ¶8 Taxpayers’ motion and amended motion to intervene raise several issues. They include a more detailed explanation of the facts alleged in the qui tam notice and demand. The allegations include the explanation that Defendants’ claims were initially processed and paid, or disallowed, or paid in part, or disallowed in part. They state that subsequent to this processing 17 O.S.Supp.1998 § 356 (O)3 created a two-year period for Defendants to reassert claims which had not been paid in full. They allege that the Defendants’ claims were refiled

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by lawyers Parrish and Fulkerson, and the then Administrator of the Indemnity Fund, David Kelley, determined that the claims were previously reviewed “and unless claimants had some new, not yet presented evidence to show that necessary and integral work had been performed and paid for, they would not be entitled to any further payment.” ¶9 Taxpayers allege that no litigation on the claims occurred and then a Settlement Agreement was created and individual settlement agreements were made. Part of the settlement directed warrants to pay the amounts agreed upon to Cardinal Engineering, Inc. and Fulkerson and Fulkerson, P.C. An additional nine claims were allegedly assigned to Cimarron Environmental and Monitoring Services and the individual settlement agreements on those claims were signed by Richard Sealy. The motion to intervene states that at the time the agreements were executed Sealy had been charged with thirteen counts of filing false and fraudulent claims with the Petroleum Storage Tank Division of the Corporation Commission, the entity administering the Indemnity Fund. At this time Sealy had also been charged with one count of conspiracy to defraud the State of Oklahoma. ¶10 Taxpayers allege that nothing in the Settlement Agreement indicates that defendants knew their claims had been allegedly revived by § 356(O) and those claims had been settled, “or knew money had been paid to Cardinal Engineering and Fulkerson and Fulkerson on their claims.” Taxpayers also allege that the Indemnity Fund is used to reimburse reasonable and allowable costs for cleanup after a petroleum release, that the Commission determined that no additional amounts were owed on Defendants’ claims, and that payment was made from the Indemnity Fund without sufficient evidence that the payments were to reimburse for the corrective actions taken after petroleum release. Taxpayers state that the settlement agreement provides that it is “not to be construed as an admission of liability on the part of the Indemnity Fund, nor is this settlement to be construed as a determination that the costs for any past or pending claims on these sites were reasonable, necessary, customary or integral to the corrective action taken at the sites. . . .” ¶11 The issues also involve the method of the Commission in prosecuting the suit. Taxpayers argued that the action was not being diligently Vol. 81 — No. 11 — 4/17/2010

prosecuted because of the Commission’s sixmonth period of inaction after filing suit. They stated that all of the summonses were issued on the 180th day after the suit was filed and all were served by leaving them at the law office of Richard Parrish and Shawn Fulkerson; further, that Fulkerson is not the registered service agent for any of the Defendants and Parrish is the registered service agent for only one defendant, American Sanitation, Inc. Taxpayers argued that while Parrish had agreed to accept service for all of the Defendants, some of the Defendants were not aware that they had been sued. Taxpayers also questioned whether Defendants had knowledge of the claims filed on their behalf. ¶12 Another issue raised by Taxpayers is the allegation that the Commission will not act in good faith in litigating the issues herein because of the Commission’s conduct in related litigation, State ex rel. Wright v. Oklahoma Corporation Commission, 2007 OK 73, 170 P.3d 1024. Taxpayers allege that State ex rel. Wright concerned a similar payment after settlement to ConocoPhilips and one of the Commissioners attempting to persuade the State Auditor and Inspector to retract an audit stating that the Commission had overpaid ConocoPhilips. They allege that in the ConocoPhilips litigation, after the Commission sought a declaratory judgment for judicial approval of the settlement, no discovery was made by the Commission against ConocoPhilips. In summary, they allege that the lack of a diligent prosecution is shown in State ex rel. Wright and such is evidence of the Commission’s intention to be less than diligent in prosecuting the present case. ¶13 The Commission objected to the intervention by Taxpayers in the declaratory judgment action. The trial court determined that some Defendants had not been served or made a voluntary appearance, and decided that if the Commission did not procure service of process or voluntary appearance of the remaining Defendants then the Amended Motion to Intervene would be granted. O.R. Vol II, 425. The trial court subsequently determined that all Defendants had received service of process and then denied the motion of Taxpayers to intervene in the declaratory judgment action. Taxpayers appealed. ¶14 In support of the trial court’s order and in response to Taxpayers’ arguments, the Commission and Defendants argue (1) that appellants fail to satisfy the requirements for inter-

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vention specified in the Pleading Code at 12 O.S. § 2024, (2) that the Indemnity Fund does not contain funds belonging to the State of Oklahoma,4 (3) that Taxpayers lack standing to intervene under 62 O.S. §§ 372-373, (4) that the Corporation Commission has diligently prosecuted their case and such action precludes intervention by Taxpayers, (5) that the qui tam demand is itself defective, (6) that Taxpayers lack an interest in the property which is the subject of the trial court action and they should not be allowed to intervene, (7) that the trial court action without participation of Taxpayers will not impair their ability to protect their interests, and (8) that Taxpayers’ interests are adequately protected by the parties to the trial court action. The Commission and Defendants rely on City of Oklahoma City v. Oklahoma City Urban Renewal Authority, 1999 OK 71, 988 P.2d 901 (Tal I ); State ex rel. Moshe Tal v. City of Oklahoma City, 2002 OK 97, 61 P.3d 234 (Tal IV ); and State for Use of Board of County Commissioners of Pontotoc County ex rel. Braly v. Ford, 1941 OK 270, 116 P.2d 988. ¶15 In six recent opinions, the Court discussed a taxpayer’s demand upon a public body, the public body’s response thereto by filing a declaratory judgment action, a taxpayer’s response by seeking to intervene in the declaratory judgment proceeding, and the taxpayer’s subsequent qui tam proceeding filed as a separate action.5 Therein, although the parties to the declaratory judgment proceeding agreed that the public contracts at issue were lawful, such agreement did not deprive the declaratory judgment proceeding of its justiciable character when the issues presented were not feigned or collusive by those seeking to uphold the public contracts. State ex rel. Moshe Tal v. City of Oklahoma City, 2002 OK 97, ¶ 8, 61 P.3d 234, 241 (Tal IV ), citing City of Oklahoma City v. Oklahoma City Urban Renewal Authority, 1999 OK 71, ¶ 29, 988 P.2d 901, 907 (Tal I ). ¶16 In the Tal cases we analyzed whether the officials had fairly presented the material facts and law to the trial court for adjudication. Tal II, 1999 OK 85, at ¶¶ 8-9, 991 P.2d at 1001; Tal I, 1999 OK 71, ¶¶ 17-22, 988 P.2d at 906. In Tal IV we noted that the qui tam taxpayers did not claim that the officials failed to raise a substantive issue arising from their written demand upon the officials. Tal IV, 2002 OK 97, ¶ 8, 61 P.3d 242. Officials need not plead unsupported factual conclusions made by the qui tam taxpayers. Tal I, 1999 OK 71, ¶ 18, 25-26, 988 P.2d 990

at 906. A recurring issue in the Tal opinions is whether the officials were diligent in presenting the alleged illegal official acts in the declaratory judgment proceeding. In State for Use of Board of County Commissioners of Pontotoc County ex rel. Braly v. Ford, 1941 OK 270, 116 P.2d 988, we explained that the evidence before the trial court showed that the officials were diligent in prosecuting the action. Id., 116 P.2d at 992. The Tal and Braly opinions show that one measure of the officials’ diligence is whether they present the material facts to the trial court. ¶17 Taxpayers argue that the Commission will not prosecute the declaratory judgment claim in good faith. The Commission’s objection to the motion to intervene states that these allegations of Taxpayers are “rank speculation and conjecture” and insufficient to overcome the presumption that the action will be prosecuted in good faith. O.R. at 160. The Commission refers to the filing of the declaratory judgment action as evidence of its good faith. ¶18 It appears that the Commission does not measure its good faith diligence in prosecuting the action by whether it puts at issue facts alleged by Taxpayers. On appeal the Commission does not argue that any facts alleged by the taxpayers, or facts known by Taxpayers, will be submitted to the trial judge. The Commission’s disdain of Taxpayers’ version of the facts is facially apparent from the Commission’s brief. ¶19 The Commission’s brief on appeal states that the settlements were reached after mediation before “a highly respected Oklahoma City lawyer and mediator,” and that the two taxpayer/appellants are “two disgruntled former attorneys for Plaintiffs/Appellees.” The brief also states that the qui tam demand was an act “questioning the wisdom of the settlements.” The Commission’s brief refers to the denial of claims by taxpayer/appellants when they were Commission employees as part of “utter mismanagement” by them, and when a new Administrator chose to enter into a settlement agreement it benefitted the Indemnity Fund. The Commission’s brief asserts that the settlements’ provision for payment of attorney’s fees and interest is based upon a statutory authorization, and that the claimants’ attorney fees and interest had mounted due to Taxpayers’ “ill-conceived legal tactics” when they were Commission employees. The Commission’s brief asserts that Taxpayers have no factual basis for an allegation of fraud, and the brief

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supports this conclusion with a lengthy footnote supplying both alleged facts and legal argument. The Commission’s brief attacks the legality of the qui tam letter. The Commission’s brief states that Taxpayers “spend much of their brief attempting to shade the facts of the case.” After taking issue with Taxpayers’ attempt to “shade the facts” the Commission concludes that intervention by Taxpayers not necessary because the Commission can adequately represent Taxpayers’ interests. ¶20 Taxpayers allege that statutes and regulations provide an administrative procedure with a hearing for a claimant to present evidence of reimbursable expenditures from the Indemnity Fund. Subsequent to learning that a Commission employee would require additional evidence from Defendants, it is contended, no such administrative hearing occurred; and, after a different employee became involved, a settlement procedure was employed where the evidence required for additional payments from the Indemnity Fund was not produced by Defendants or stipulated and admitted by the Commission as part of the settlement, after which payments of State funds were made in the absence of such required evidence. The allegation is that officials of the Commission knew of this absence of evidence and thus allowed payment “on claims they knew were not due and owing with many of the claims unsupported by the documentation required under the Petroleum Storage Tank Statutes.” ¶21 In essence, these allegations state that the settlement procedure was an artifice, supplanting the administrative procedure and evidentiary burdens by those involved. Taxpayers are not merely alleging that the Commission compromised and settled claims, but that it settled and agreed to pay resubmitted claims with knowledge that they had been rejected because of a lack of evidence showing that payment was proper. Taxpayers also allege that the Indemnity Fund was used to pay “attorney fees” and “litigation costs” in the absence of “litigation” as that term is defined by Taxpayers, and that such payments are therefore improper. They also allege that because payments were made to specific lawyers, those lawyers must be named as defendants in the declaratory judgment proceeding, and the Commission’s failure to name them as defendants shows a lack of diligent prosecution.6 Vol. 81 — No. 11 — 4/17/2010

¶22 The declaratory judgment petition asks for relief in the alternative, either approving the settlement procedure and the payments made or requiring Defendants to repay to the Commission the payments made under the settlement agreements. It is certainly true that a party litigant may plead, and rely on at trial, alternative and inconsistent theories or defenses under the Oklahoma Pleading Code. Cranford v. Bartlett, 2001 OK 47, ¶ 12, 25 P.3d 918, 923; Howell v. James, 1991 OK 47, 818 P.2d 444. But the issue presented in this context is not whether inconsistent pleadings are procedurally allowed, but whether the Commission’s pleadings and legal arguments show a lack of good faith in litigating the legality of the taxpayer-challenged payments. ¶23 Taxpayers’ demand refers to the fraudulent claims of Sealy and his convictions. Are officials acting in good faith when they seek a declaratory judgment on the legality of payment of public funds when the person to whom payment was made was convicted of filing false and fraudulent claims? No authority need be cited for the proposition that a public official may not use the courts and the procedure of a declaratory judgment to obtain a judicial pronouncement that approves of payments made by that official on false and fraudulent claims. But we must stress that there is nothing in the record expressly stating that Sealy’s settlements on behalf of Cimarron Environmental and Monitoring Services were fraudulent or that these claims relate to a named Defendant. On the other hand, there is no express allegation in a pleading or argument by the Commission stating that Sealy’s claims are not part of the declaratory judgment action. ¶24 Taxpayers assert that Sealy’s convictions, and knowledge of his criminal charges by Commission officials while settling claims with Sealy, show the Commission’s willingness to settle claims against the Indemnity Fund without sufficient evidence to support payment of such claims. The declaratory judgment petition and objection to the motion to intervene make no statements to distinguish the fraudulent claims associated with Sealy, his settlements on behalf of Cimarron Environmental and Monitoring Services, and the settlements involving the particular Defendants in this proceeding. ¶25 The Commission’s declaratory judgment petition states that claims made by the Written Demand of Taxpayers have raised certain questions which need resolution. Taxpayer’s qui

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tam demand and notice was attached as an exhibit to the declaratory judgment petition. Notice pleading does not require pleading every fact upon which a claim is based, but merely a short and plain statement of the claim that will give fair notice of what the plaintiff’s claim is and the grounds upon which it rests. Estate of Hicks ex rel. Summers v. Urban East, Inc., 2004 OK 36, ¶ 15, 92 P.3d 88, 92; Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 3, 913 P.2d 1318, 1320. Satisfying the burden of diligent prosecution is not based merely upon satisfying a procedure; but diligence is also based, in part, upon a good-faith presentation of the material facts to the trial court. Tal II, 1999 OK 85, at ¶¶ 8-9, 991 P.2d at 1001; Tal I, 1999 OK 71, ¶¶ 17-22, 988 P.2d at 906. Similarly, we reject Taxpayers’ argument that the Commission’s use of a particular procedure, that is, using 180 days after filing the petition to attempt service, necessarily shows a lack of due diligence in prosecution. ¶26 While a proper procedure must be used to present the material facts before the trial court, a justiciable controversy adjudicated in the form of a declaratory judgment action must be based upon the presence of antagonistic demands. Lawrence v. Cleveland County Home Loan Authority, 1981 OK 28, 626 P.2d 314, 315. Antagonistic demands may be initially pled via a petition with the qui tam notice and demand. However, we decline to adopt a standard that a petition with attached qui tam notice is sufficient as a matter of law to satisfy an official’s burden to place material facts before the trial court. The record and appellate briefs clearly show that the Commission took a view of the facts relating to the settlements that is wholly contrary to that of Taxpayers. The objection of the Commission to the intervention was not based upon the Commission’s attempts to use Taxpayers’ alleged facts and legal arguments before the trial court.7 ¶27 The Pleading Code makes timely intervention a matter of right8 when there is either an unconditional statutory right to intervene; or when (1) the intervenor claims a significant protectable interest relating to the property or transaction that is the subject of the action, (2) the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest, and (3) the existing parties may not adequately represent the applicant’s interest. Brown v. Patel, 2007 OK 16, ¶¶ 16-18, 157 P.3d 117, 123-124. The parties 992

focus on the nature of the interest claimed by Taxpayers in this controversy. ¶28 In State for Use of Board of County Commissioners of Pontotoc County ex rel. Braly v. Ford, 1941 OK 270, 116 P.2d 988, we stated that when officials fail to take the proper actions after a taxpayer’s statutorily sufficient written demand, a “taxpayer may institute a suit as provided by the statute and thereby acquire a substantial interest in the subject matter of the litigation.” Id. 116 P.2d at 990. But because of the presumption that officials will take proper actions subsequent to a demand letter, the taxpayer’s interest does not come into being until the taxpayer shows that officials failed to take the proper actions after receiving the demand letter. Id. 116 P.2d at 990-991. The qui tam interest of Taxpayers is thus limited to that created by the qui tam statute, and they must show in the pleading stage the insufficiency of the declaratory judgment petition as a condition precedent to a successful intervention on the basis of the pleadings. Taxpayers alleged facts not raised by the declaratory judgment petition with attached qui tam demand and this is in the nature of a challenge to the sufficiency of the declaratory judgment petition. But their more fundamental challenge to the good faith of the Commission is based upon allegations that the Commission employees settled and paid claims knowing that such claims had been previously denied as insufficient and that the Commission, without appropriate investigation or proof for the claims, entered into settlements to pay such claims, including payment to a person who was then being charged with the crime of making false claims. ¶29 Taxpayers’ motion for intervention distinguishes the Tal opinions with the allegation that Tal involved public contracts that were publicly debated, but “the Settlement Agreement deals were struck privately and secretly after prior [Commission] staff and administration at the Indemnity Fund had determined no more should be paid on the Defendants’ claims.” O.R. at 191. They also allege that the Commission’s interests and approach to the litigation is at odds with that of the Taxpayers. We also note that allegations of wrongful conduct made by Taxpayers in their motion and amended motion to intervene are in the nature of supporting their allegations in the qui tam notice and these supporting allegations were not subsequently adopted or raised in any pleading by the Commission in support of an

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adjudication of the invalidity/validity of the settlement agreements and payments.9 We conclude that the nature of Taxpayers’ allegations and the opposition of the Commission to both alleged facts and law raised by Taxpayers are sufficient to show that Taxpayers met their factual burden in the trial court10 and the trial court’s order denying the motion to intervene must be reversed. We need not formally adopt or reject a federal standard of review or parse issues of fact and law in this proceeding since we conclude that Taxpayers satisfied their burden to show facts sufficient to comply with § 2024 and the trial court’s ruling is in error because it lacks legal support.11 ¶30 After completion of the appellate record and during the briefing cycle the Commission sought to supplement the record on appeal. The Commission states that it learned that one of the individuals who signed the qui tam letter did not sign the letter and that the qui tam letter has an insufficient number of taxpayer signatures. The Commission also alleges that one of the signatures was not properly notarized. The Commission seeks dismissal of the appeal on these grounds, and Defendants make a similar argument in their appellate brief. Taxpayers respond and state that the Commission’s allegation as to the first individual is based upon a deposition and that the deposition transcript has not been provided to the individual taxpayer to read and make corrections. They also state that because they were denied intervention they were not present at the deposition to “refresh” the taxpayer’s memory as to which qui tam letters he signed. Taxpayers assert that the second individual verified his signature under oath during his deposition. ¶31 We deny the motion to supplement the record on appeal. The issue of the propriety of the qui tam demand and notice was not presented to the trial court for adjudication, and we decline to make a first instance determination of fact and law. State of Oklahoma v. Torres, 2004 OK 12, ¶ 8, n. 15, 87 P.3d 572, 578; Evers v. FSF Overlake Associates, 2003 OK 53, ¶ 18, 77 P.3d 581, 587. We accordingly deny the motion to dismiss the appeal without prejudice to the parties making their claims of fact and law on remand in the District Court concerning any alleged impropriety in the qui tam demand and notice. The motion of the Corporation Commission to file an additional brief is denied. The stay of trial court proceedings previously granted is dissolved upon issuance of manVol. 81 — No. 11 — 4/17/2010

date. The order denying the motion to intervene is reversed and the matter is remanded to the District Court for further proceedings consistent with this opinion. ¶32 ALL JUSTICES CONCUR. 1. 1989 Okla. Sess. Laws Ch. 90, §§ 18-27; 17 O.S.2001 §§ 350-358. 2. The recent amendment to 17 O.S. § 52 by 2009 Okla. Sess. Laws Ch. 429 § 7 did not change the language vesting jurisdiction with the Commission. 3. 1998 Okla. Sess. Laws Ch. 375, § 30 created paragraph “O” of § 356 which then stated the following. “O. Claims for reimbursement pursuant to the Oklahoma Petroleum Storage Tank Release Indemnity Program must be made within two (2) years of the effective date of this act or two (2) years after site closure, whichever is later. Eligible persons should be encouraged to submits [sic] claims for reimbursement as the costs are incurred and in the order they are incurred. However, the right to submit a claim or the time during which to submit a claim for reimbursement shall not be limited or restricted except as provided in this subsection.” 4. This argument was examined by the Court in State ex rel. Wright v. Oklahoma Corporation Commission, 2007 OK 73, 170 P.3d 1024, where the Court rejected this argument and held that the Petroleum Storage Tank Release Environmental Cleanup Indemnity Fund contained funds belonging the State. 5. City of Oklahoma City v. Oklahoma City Urban Renewal Authority, 1999 OK 71, 988 P.2d 901(Tal I ); State ex rel. Moshe Tal v. Norick, 1999 OK 85, 991 P.2d 999(Tal II ); State ex rel. Moshe Tal. v. City of Oklahoma City, 2000 OK 70, 19 P.3d 268, cert. denied, 534 U.S. 814, 122 S.Ct. 40, 151 L.Ed.2d 13 (2001)(Tal III ); State ex rel. Moshe Tal v. City of Oklahoma City, 2002 OK 97, 61 P.3d 234 (Tal IV ); Oklahoma City Urban Renewal Authority v. City of Oklahoma City, 2005 OK 2, 110 P.3d 550, 554 (Tal V ); State ex rel. Wright v. Oklahoma Corporation Commission, 2007 OK 73, 170 P.3d 1024. 6. This Court does not make first-instance determinations of disputed issues of either law or fact in the exercise of its appellate jurisdiction. State of Oklahoma v. Torres, 2004 OK 12, ¶ 8, n. 15, 87 P.3d 572, 578; Evers v. FSF Overlake Associates, 2003 OK 53, ¶ 18, 77 P.3d 581, 587. Whether those specifically named to receive payments from the settlement agreements are required to be made parties to the declaratory judgment proceeding presents an issue that need not be decided in this appeal in advance of presentation of the issue to the trial court. 7. For example, the Commission argued in its objection that the Indemnity Fund did not contain funds belonging to the State of Oklahoma, and thus challenged a basis of a qui tam action in this case. 8. Title 12, Section 2024, provides in part: A. INTERVENTION OF RIGHT. Upon timely application anyone shall be permitted to intervene in an action: 1. When a statute confers an unconditional right to intervene; or 2. When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest. 9. After the motion to intervene was denied, the Commission filed its motion to enter the case on the non-jury trial docket and the trial court issued a scheduling order. This Court stayed the trial court proceedings pending the appeal and the scheduled trial did not occur. 10. In Tal I we stated that whether a taxpayer met the burden of showing a public body’s failure to respond in good faith to a taxpayer demand is left to the sound discretion of the trial court. Tal I, 1999 OK 71, ¶ 17, 988 P.2d 901, 906. Intervention of right pursuant to § 2024(A) does not involve a discretionary act of the trial court. Morton v. Baker, 1938 OK 409, ¶ 4, 82 P.2d 998, 1000, quoting Swift v. Black Panther Oil & Gas Co., 244 F. 20 (8th Cir. 1917). Permissive intervention is left to the sound legal discretion of the trial court based upon the nature of the controversy and the facts and circumstances of each case. Tulsa Rock Co. v. Williams, 1982 OK 10, 640 P.2d 530, 532. We need not comment further on this statement in Tal I other than to note that it was not intended to govern the standard of review on appeal. See the discussion of standards of review at note 11 infra. 11. Our Pleading Code adopts a procedure for intervention based upon a federal counterpart. Brown v. Patel, 2007 OK 16, ¶ 16, 157 P.3d 117, 123. Federal courts use an abuse-of-discretion standard when reviewing an order granting or denying permissive intervention. Alameda Water & Sanitation District v. Browner, 9 F.3d 88, 89-90 (10th Cir.1993) citing Allen Calculators, Inc. v. National Cash Register Co., 322 U.S. 137, 142, 64 S.Ct. 905, 908, 88 L.Ed. 1188 (1944). One federal court

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has explained that appellate review of an order deciding intervention of right is reviewed de novo when a pure issue of law is presented, findings of fact are reviewed for clear error, and abuse-of-discretion review is used if the trial court’s judicial discretion is involved. Fund for Animals, Inc., v. Norton, 322 F.3d 728, 731-732 (D.C.Cir. 2003). See also Utah Assn. of Counties v. Clinton, 255 F.3d 1246, 1249-1250 (10th Cir.2001) (“We generally review a district court’s ruling on the timeliness of a motion to intervene under an abuse of discretion standard. . . . When the court makes no findings regarding timeliness, however, we review this factor de novo. . . . We review de novo the court’s rulings on the three remaining requirements of Rule 24(a)(2).”).

2010 OK 26 DARLA K. PRICE, Individually, and as the Surviving Spouse of PERRY KEITH PRICE, Deceased, Plaintiff/Appellant, v. CATHRYN L. HOWARD, CYNTHIA LYNN HENNING and CHARLES J. HOWARD, JR., Independent Co-Executors of the Estate of CHARLES JAMES HOWARD, M.D., Deceased; The Estate of CHARLES JAMES HOWARD, M.D., Deceased; CATHY ANN OLSEN, Independent Administratrix of the Estate of JON PETER OLSEN, Deceased; The Estate of JON PETER OLSEN, Deceased; DAVID HOBZA, and SERVICENTER, INC., Defendants/Appellees. No. 105,943. April 1, 2010 ORDER It is hereby ordered that the typewritten opinion in the above styled and numbered cause promulgated on March 26, 2010 is hereby corrected as follows: p. 2-3 The designation of counsel as set out in the opinion is deleted and replaced with the following: Derek K. Burch, James A. Scimeca, Burch & George, P.C., Oklahoma City, Oklahoma For Plaintiff/Appellant, Darla Price. A. Thomas Elder, Jr., David C. Johnston, Smith Rhodes Stewart & Elder, P.L.L.C., Oklahoma City, Oklahoma For Defendant/Appellees, Cathryn L. Howard, Cynthia Lynn Henning and Charles J. Howard, Jr., The Estate of Charles James Howard, Cathy Ann Olsen, The Estate of Jon Peter Olsen. Mark R. McPhail, Spradling, Kennedy & McPhail, L.L.P., Oklahoma City, Oklahoma, Galen Lee Brittingham, Andrew G. Wakeman, Atkinson, Haskins, Nellis, Brittingham, Gladd and Carwile, Tulsa, Oklahoma For Defendants/Appellees, Cathryn L. Howard, Cynthia Lynn Henning and Charles J. Howard, Jr., The Estate of Charles James Howard. 994

Anton Rupert, Crowe & Dunlevy, Oklahoma City, Oklahoma, Katherine A. Staton, Jackson Walker, L.L.P., Dallas, Texas For Defendant/ Appellee, David Hobza. Bradley K. Donnell, Rodney K. Hunsinger, McAfee & Taft, Oklahoma City, Oklahoma For Defendant/Appellee, ServiCenter, Inc. In all other respects, the opinion promulgated on March 16, 2010 shall remain unaffected by this correction order. DONE BY ORDER OF THE SUPREME COURT THIS 1st DAY OF APRIL, 2010. /s/ James E. Edmondson CHIEF JUSTICE 2010 OK 32 STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. WALTER D. MURDOCK, Respondent. SCBD 5542. April 6, 2010 BAR DISCIPLINARY PROCEEDING ¶0 A disciplinary proceeding instituted pursuant to Rule 6, Rules Governing Disciplinary Proceedings, was brought against former general counsel for the Oklahoma Bar Association who entered an Alford plea to a misdemeanor charge of outraging public decency and was sentenced to one year probation, 50 hours of community service, victim restitution and counseling. The complaint alleged that the Respondent violated Rule 1.3, Rules Governing Disciplinary Proceedings. After a hearing before a trial panel of the Professional Responsibility Tribunal, the panel recommended the discipline of private reprimand. The special prosecutor for the Complainant sought the discipline of public reprimand. We find that the Respondent violated Rule 1.3 and that a public reprimand is the appropriate discipline to be imposed. THE RESPONDENT STANDS PUBLICLY CENSURED AND IS ORDERED TO PAY THE COSTS OF THIS PROCEEDING. Murray E. Abowitz, Special Prosecutor, Oklahoma Bar Association, Oklahoma City, Oklahoma, for the Complainant Charles F. Alden, III, Alden Leonard & Dabney, Oklahoma City, Oklahoma, for the Respondent.

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HARGRAVE, J. ¶1 On June 24, 2009, the Oklahoma Bar Association (Bar) filed a complaint pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP) against Walter D. Murdock alleging violation of Rule 1.3 RGDP, 5 O.S. 2001, Ch. 1, App. 1-A.1 The complaint states that on June 28, 2008, Walter D. Murdock was involved in a situation which resulted in his ultimately entering an Alford plea to the misdemeanor charge of Outraging Public Decency, in violation of 21 O.S. § 22.2 No additional facts were set forth in the complaint. At the hearing before the Trial Panel of the Professional Responsibility Tribunal, a certified copy of the criminal case filed in CF-2008-4350, State of Oklahoma v. Walter D. Murdock, was entered into evidence by the Complainant.3 ¶2 Also entered into evidence as Complainant’s exhibit 15 is an unsigned photocopy of the stipulations of the parties. The stipulations relevant to our inquiry are as follows: At the time of the matters in question, Walter D. Murdock was the General Counsel of the Oklahoma Bar Association. On June 28, 2008, Mr. Murdock was involved in a situation which resulted in him being charged with two counts of Sexual Battery in violation of 21 O.S. § 1123(D). The charges resulted in the filing of State of Oklahoma v. Walter D. Murdock, Case No. CF 2008-4350. At the request of the State of Oklahoma, one count of Sexual Battery was dismissed and Mr. Murdock entered an Alford plea on the other count, which was reduced to the misdemeanor of Outraging Public Decency, in violation of 21 O.S. § 22.4 Mr. Murdock received a one-year suspended sentence and 50 hours of community service to be performed before October 8, 2009. Prior to this complaint, Mr. Murdock has never been the subject of any disciplinary proceedings before this Court. Complainant’s Exhibit 1 - 13 are true and correct copies of the Oklahoma District Court files in Case No. CF 2008-4350. The Respondent admitted his Alford plea and conviction from the outset of this proceeding. Neither the allegations of the complaint nor the circumstances relating to the underlying Alford plea involved any attorney/client relationship or the funds and/or property of any client. Respondent has been forthright and cooperative with the Special Prosecutor in the investigation of this matter. Respondent has successfully completed the probation imposed by the District Court of Oklahoma County and he has met all financial Vol. 81 — No. 11 — 4/17/2010

and community service requirements imposed as a part thereof. ¶3 A hearing was held on November 9, 2009 before a three-person trial panel of the Professional Responsibility Tribunal. At the hearing, the special prosecutor for the Bar placed Mr. Murdock on the stand in order to testify as to the matters that are set out in the stipulations. The Respondent was the only witness called by the Complainant. Respondent’s witnesses included a former federal judge, the director of the outreach ministry mentoring program where the Respondent volunteered, three members of the Oklahoma Bar Association and the Respondent’s former assistant at the Oklahoma Bar Association. Each of the witnesses had known the Respondent personally for many years and each expressed the view that he was honest, conscientious, deeply humiliated and remorseful for what had occurred. ¶4 The Report of the Trial Panel filed with this Court found that on June 28, 2008, Walter D. Murdock was involved in a situation which resulted in him ultimately entering, on October 9, 2008, an Alford plea to the misdemeanor of Outraging Public Decency, in violation of 21 O.S. § 22. The Trial Panel found that the actions of the Respondent violated Rule 1.3 of the RGDP. No additional facts were set out. The Trial Panel found that Respondents’s actions did not involve a client or an individual with whom the Respondent had any professional relationship. ¶5 The Trial Panel found that the Respondent admits the improper acts and accepts full responsibility for his actions, has been individually and professionally humiliated by his actions and shows genuine remorse for those actions. They found that the Respondent has, since the incident, entered an Alford plea to the misdemeanor charge, satisfied all probationary conditions associated with his plea, sought professional medical help, sought and participated in addiction treatment and counseling and assisted in the treatment of others with addictions. They found that the Respondent, in accordance with the probationary requirements of the State, completed more than the required 50 hours of community service, paid all costs, restitution and has completed a one-year suspended sentence supervised by the Office of the District Attorney of Oklahoma County. The Trial Panel found that the Respondent is highly competent to practice law and that he is a man of character, trustworthiness and professional-

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ism and that the Respondent has had no previous disciplinary actions. The Trial Panel unanimously recommended that the Respondent should receive the discipline of private reprimand from this Court. The Bar argues that the appropriate discipline is a public reprimand. ¶6 The recommendations of the Trial Panel are not binding on this Court. State ex rel. Oklahoma Bar Ass’n v. Anderson, 2005 OK 9, 109 P.3d 326, 330. Our review of the record is de novo in which we conduct a non-deferential, full-scale examination of all relevant facts. Id. We consider all of the evidence, without deference to the parties’ stipulations, in order to determine if allegations of misconduct are established by clear and convincing evidence. State ex rel. Oklahoma Bar Ass’n v. Taylor, 2003 OK 56 ¶2, 71 P.3d 18, 21. In this case, the Respondent has admitted the inappropriate conduct.5 The Respondent has also admitted that he violated Rule 1.3, RGDP.6 This Court likewise finds the Respondent’s conduct to be a violation of Rule 1.3, RGDP. It remains only then for this Court to determine the appropriate discipline. ¶7 We previously have considered the proper discipline for lawyers accused of sexually inappropriate conduct with clients and with nonclients. In State ex rel. Oklahoma Bar Ass’n v. Sopher, 1993 OK 55, 852 P.2d 707, we followed the recommendation of the Professional Responsibility Tribunal and imposed the discipline of public reprimand based upon stipulated facts. The parties had stipulated to recommended discipline of public reprimand. In that case, a woman formerly employed as a secretary for Sopher came to see him to discuss two legal matters and gave him a retainer. He looked down her blouse and then called her mother into his office and did the same thing to her. Sopher stated that he believed his conduct would not be offensive due to his previous acquaintance with the mother and daughter. In condemning such conduct we stated: “Taking advantage of the attorney-client relationship by making sexual advances accompanied by offensive touching is professional misconduct and will result in disciplinary action against the attorney when the matter is brought to the attention of this Court. Clients are in a vulnerable position. Exploiting the client for gratification of the attorney will not be tolerated by this Court . . . “ 996

¶8 The attorney/client relationship was again involved in State of Oklahoma ex rel. Oklahoma Bar Ass’n v. Copeland, 1994 OK 21, 870 P.2d 776. There, upon stipulations of fact and law, the Trial Panel recommended the discipline of private reprimand. On de novo review we declined to adopt the recommended discipline and instead imposed the discipline of public reprimand. There, the client was seeking to bring a sexual harassment suit against her employer. The Respondent stipulated that he purposefully touched the client’s breast, but said that he asked her if that was the kind of conduct displayed by her coworkers. It was also stipulated that if the client testified, she would state that after she was touched the Respondent related that sexual favors had been performed for him by another female client. We concluded that it was agreed that the touching took place, but that there was a dispute as to what the Respondent and the client talked about afterwards. We held that the evidence as stipulated was clear and convincing that the Respondent’s conduct was unprofessional and that a public rather than private reprimand was the proper discipline upon those facts.7 ¶9 The attorney/client relationship was not involved in State ex rel. Oklahoma Bar Ass’n v. Foster, 2000 OK 4, 995 P.2d 1138. In that case, the Respondent pled nolo contendere to the charge of assault with intent to commit a felony and a five-year deferred sentence was imposed. The Bar’s complaint charged the respondent with a single count of professional misconduct for violating Rule 1.3 RGDP. The only issue before the Court involved the respondent’s viewing of a minor child’s breasts and inappropriate comments made to the minor following the incident, to wit: that she had nice breasts and that they should be photographed. At the hearing before the Trial Panel , the Bar and the attorney presented agreed findings of fact and conclusions of law with a recommendation of discipline of private reprimand. The trial panel issued its findings of facts and conclusions of law endorsing the parties’ agreed recommendation of discipline. Upon de novo review we rejected the recommended discipline stating that the attorney had committed acts of a sexual nature condemned by this Court as in violation of the Rules of Professional Conduct and Rules Governing Disciplinary Proceedings. The attorney had been admitted to the Bar for almost fifty years and had no previous disciplinary investigations

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commenced. He had complied with all terms and conditions of his probation and was a retired district judge who did not practice law. He freely admitted his misconduct and accepted responsibility therefor. Considering his long years of practice without prior discipline, his service to the judiciary, his conduct following the entering of his plea and in response to the complaint and the fact that he no longer practiced law, we deemed a public reprimand to be the proper discipline to be imposed. ¶10 In State ex rel. Oklahoma Bar Ass’n v. Garrett, 2005 OK 91, 127 P.3d 600, the Bar’s complaint described the accusations of sexual assaults made against Garrett by two women at different times and places. He was charged with two counts of felonious sexual battery, in violation of 21 O.S. Supp. 2002 § 1123(B). The two felony sexual battery charges were reduced to misdemeanor battery charges, to which Garrett pled guilty. Garrett received one-year suspended sentences on each count, to run concurrently, and additionally he was required to continue alcohol treatment while on probation. The complaint also addressed the chronic alcoholism from which Garrett had been suffering for a considerable period of time. Garrett contacted Lawyers Helping Lawyers Program and entered an inpatient treatment facility where he remained for 72 days. We considered all the evidence without deference to the parties’ stipulations to determine if allegations of misconduct were established by clear and convincing evidence. We agreed with the Bar that Garrett’s disregard for the persons of the two women, his criminal conduct and criminal convictions were clear and convincing evidence of violations of Rule 8.4(a) and (b) as well as Rule 1.3, RGDP. The parties stipulated and the Trial Panel recommended discipline of public censure and probation for one year subject to specific conditions. The overwhelming evidence indicated Garrett’s problems stemmed from the abuse of alcohol. There was clear and convincing evidence that his actions after arrest showed a commitment to maintaining sobriety and to making amends to his victims. We adopted the Trial Panel’s recommendation of probation with conditions for one year, in addition to public censure. ¶11 In State ex rel. Oklahoma Bar Ass’n v. Wilburn, 2006 OK 50, 142 P.3d 420, the complaint filed by the Bar alleged that the attorney initially was charged with two counts of felony Sexual Battery and set out the details of the Vol. 81 — No. 11 — 4/17/2010

crimes charged. The criminal counts were amended to misdemeanor charges of Outraging Public Decency, to which the attorney pled guilty and received a one-year suspended sentence on each count, to run concurrently, and was given forty (40) hours of community service. The Bar alleged that the attorney’s conduct violated Rule 8.4 (b) of the Oklahoma Rules of Professional Conduct (ORPC) and Rule 1.3 RGDP. The attorney was charged with lewdly touching two female security guards at the Tulsa County Courthouse by slapping one guard on the buttocks and pressing his body against her buttocks in a hunching motion and by striking the buttocks of the second guard. The parties stipulated to the facts surrounding the criminal charges and that his conduct constituted professional misconduct and was a violation of Rule 8.4(b), ORPC, and Rule 1.3, RGDP. The Trial Panel and the Bar recommended to this Court that a private reprimand was the appropriate discipline to be imposed. In spite of the mitigating factors that Wilburn had no previous grievances filed against him, had cooperated during the investigation, had expressed remorse for his conduct, had agreed to pay a monetary settlement to one of the women involved and that no clients were harmed, we were not persuaded that a private reprimand was the appropriate discipline and instead imposed discipline of a public reprimand. We said that a public reprimand serves to protect the public and to advise other members of the Bar that inappropriate touching and sexually suggestive gestures and remarks will not be tolerated, regardless of whether they seem harmless, solicited or consensual. Because no alcohol abuse was involved, there was no reason for a probationary period. ¶12 We may consider mitigating circumstances when determining appropriate discipline. State ex rel. Oklahoma Bar Ass’n v. Wilburn, 2006 OK 50 ¶12, 142 P.3d 420,424. In the case at bar we take into account that the Respondent has no previous grievances or ethical complaints filed against him and that he has given years of service to the Oklahoma Bar Association. The Respondent has freely admitted that his conduct was inappropriate and he has expressed remorse and shame for the disrepute brought to the profession and has stated that it will not happen again. The Respondent has met all the terms of his probation and has paid restitution to the victim. Alcohol abuse or addiction was not alleged to be involved in the

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Respondent’s conduct.8 There was no attorney/client relationship involved. ¶13 The primary goals in imposing discipline for attorney misconduct are: preservation of public trust and confidence in the Bar by strict enforcement of the profession’s integrity; protection of the public and the courts; and deterrence of like behavior by other members of the Bar. State ex rel. Oklahoma Bar Ass’n v. Caldwell, 1994 OK 57, 880 P.2d 349. Even when the subject attorney does not need such deterrent to prevent continued misconduct, this Court’s interest in explaining its expectations of professional legal practice may necessitate a more public form of discipline than that offered by private reprimand. State ex rel. Oklahoma Bar Ass’n v. Erickson, 2001 OK 66, 29 P.3d 550. ¶14 Membership in the Bar is a privilege burdened with conditions. A fair private and professional character is one of those conditions. Compliance with that condition is essential at the moment of admission and it is equally essential afterwards. State ex rel Oklahoma Bar Ass’n v. Bradley, 1987 OK 78, 746 P.2d 1130. In lawyer discipline matters this Court seeks to preserve the confidence of the public and the legal profession. Here, the Respondent’s job as general counsel for the Oklahoma Bar Association was to preserve the confidence of the public in the legal profession by prosecuting those who violated the standards of the profession. ¶15 We are not persuaded that a private reprimand is the appropriate discipline to be imposed here. We find that the Bar has established by clear and convincing evidence that the Respondent’s conduct violated Rule 1.3, RGDP, and that public censure is the appropriate discipline to be imposed.9 The Respondent committed acts of a sexual nature that previously have been condemned by this Court as in violations of the Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings. See State ex rel. Oklahoma Bar Ass’n v. Foster, 2000 OK 4, 995 P.2d 1138, 1140. In State ex rel. Oklahoma Bar Ass’n v. Wilburn, 2006 OK 50 ¶13, 142 P.3d 420, 424, we stated that a public reprimand served to advise other members of the Bar that inappropriate touching and sexually suggestive gestures and remarks will not be tolerated, regardless of whether they seem harmless, solicited or consensual. The objectives of this Court in disciplining lawyers who have admitted inappropriate sexual contact would not be met by imposing discipline of private reprimand in this case. The public and 998

other members of the Oklahoma Bar Association are advised that this Court will not tolerate such conduct by members of the Bar. ¶16 The Complainant has filed an application to assess the costs of this matter against the Respondent in the amount of $1,895.11. The Respondent filed a response in which he states that he has no objection to and agrees to pay the costs sought. The Respondent, Walter D. Murdock, is ordered to pay the costs of $1,895.11 within thirty (30) days of the date this opinion becomes final. THE RESPONDENT STANDS PUBLICLY CENSURED AND IS ORDERED TO PAY THE COSTS OF THE PROCEEDING. ¶17 CONCUR: EDMONDSON, C.J., HARGRAVE, OPALA, KAUGER, WATT, WINCHESTER, COLBERT, REIF, JJ. ¶18 DISSENT: TAYLOR, (I WOULD SUSPEND RESPONDENT FROM THE PRACTICE OF LAW.), V.C.J. 1. Rule 1.3, Discipline for acts contrary to prescribed standards of conduct: The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline. 2. As stated by Respondent’s lawyer at the hearing, an Alford plea admits that the evidence, if believed by a jury, is sufficient to convict him of the misdemeanor. Tr. p. 10-11. The text of 21 O.S. § 22 is set out in footnote 4. 3. The complainant’s exhibit 1 reflects that the Respondent was charged on August 1, 2008 with two (2) felony counts of sexual battery in violation of 21 O.S. § 1123(B) The first count alleged that on June 28, 2008, the Respondent knowingly and intentionally bit and grabbed the body or private parts of K.S. in a lewd and lascivious manner and in a manner calculated to arouse and excite sexual interests and without the consent of K.S., to wit: by Walter D. Murdock biting the breast and grabbing the genital area of K.S. The second count alleged that on or about the 28th day of June, 2008, the Respondent knowingly and intentionally bit the body or private parts of K.S. in a lewd and lascivious manner and in a manner calculated to arouse and excite sexual interests and without the consent of K.S. to wit: by Walter D. Murdock biting the neck of K.S. 4. 21 O.S. Supp. 2007 § 22 — Gross injuries — Grossly disturbing peace — Openly outraging public decency — Injurious acts not expressly forbidden. Every person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency, including but not limited to urination in a public place, and is injurious to public morals, although no punishment is expressly prescribed therefor by this code, is guilty of a misdemeanor. 5. The Respondent was questioned by Mr. Abowitz regarding the Alford plea: Q: So you were in essence saying that if the district attorney presented that evidence with that individual and it was believed, that it was sufficient to convict you of outraging public decency? Is that the essence of the plea?”

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A: If believed by a jury, yes, sir. Q: Are you here before this Tribunal today telling them you didn’t do any of this? A. No, sir, I did exactly what she said. Q: Your point is it was consensual? A. I believed it to be so, yes, sir, three hours before the police were told. ... Q: You have made restitution to the victim? A. I was directed to pay $1500 by the district attorney and I did so. Tr. p. 46. The Respondent was questioned by his attorney, Mr. Alden: Q: All right. Now, the conduct in question in this case, there is no question about the fact that it happened, is there? A. No, sir. Tr. p. 61. Q: Now, is it accurate — is this an accurate statement? That you freely admit the misconduct in question and accept responsibility for your actions? A. Yes, sir, I do. Tr. p. 70. Q: And so to the extent it happened the allegation is not a false allegation, is it. A. No sir, that’s not false. Q: All right. A. The–my–I touched her. I did what she said. We left Suite 6 and went to Suite 3 and she voluntarily went with me. And what she says happened happened. Tr. pp. 74-75. 6. In the stipulations entered into evidence, the Respondent stipulated to the Alford plea but did not stipulate to a violation of the Rules Governing Disciplinary Proceedings. In his answer to the complaint, the Respondent denied that either the alleged incident or the resulting Alford plea rises to the level of a violation of the Rules Governing Disciplinary Proceedings alleged in the complaint. In his brief to this Court, however, the Respondent states that there has never been any question that he violated Rule 1.3 RGDP and that his conviction of the misdemeanor offense of outraging public decency and the circumstances underlying the same could reasonably be found to bring discredit upon the legal profession as proscribed thereby. Respondent’s Brief in Chief, p. 8. 7. More severe discipline of suspension for sixty (60) days was imposed in State ex rel. Oklahoma Bar Ass’n v. Miskovsky, 1997 OK 55, 938 P.2d 744 where there was was a pattern of behavior and a course of conduct on the part of the Respondent who used sexually explicit and inappropriate language on different occasions with two women seeking legal representation in divorce cases and who showed no remorse for his actions. 8. One of the conditions of probation was that the Respondent undergo alcohol assessment and follow any recommendations made. At the hearing, the Respondent was asked whether he had the alcohol assessment and the results of it. The Respondent answered that he did have the assessment and the results were that he “was fine.” Tr. p. 43. When questioned whether addiction or abuse was any part of the incident , the Respondent replied that it was not. Tr. p. 44. When asked whether he had been drinking that night, the Respondent replied, “I had had some drinks, yes.” Tr. p. 67, and “I’d had a couple of glasses of wine.” Tr. p. 78. 9. Even when the parties stipulate to misconduct, the stipulations do not bind this Court because our duty is to review the evidence de novo to determine whether allegations of misconduct have been established by clear and convincing evidence. This requires a complete record to be made before the Professional Responsibility Tribunal. State ex rel. Oklahoma Bar Ass’n v. Taylor, 2003 OK 56 ¶2, 71 P.3d 18, 21.

2010 OK 33 MEL JEAN WEBER, as Personal Representative of the Estate of Tom Ruble; DONALD CLAUSSEN; and ZELMA BEERS, Individually and as Class Representatives, Plaintiffs/Appellees, COLEEN MANNERING; CHARLES KENNETH DODSON, Trustee of the Charles Kenneth Dodson Revocable Trust Dated the 17th day of April, 1998; and DON GARNER, Individually and as Class Representatives, Intervenor Plaintiffs/Appellees, v. MOBIL OIL CORPORATION, a corporation; Vol. 81 — No. 11 — 4/17/2010

EXXONMOBIL OIL CORPORATION, a corporation; MOBIL EXPLORATION AND PRODUCING, NORTH AMERICAN, INC., a corporation; MOBIL EXPLORATION AND PRODUCING, U.S., a corporation; and MOBIL NATURAL GAS, INC., a corporation, Defendants/Appellants. No. 106,241. April 13, 2010 CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III ¶0 The plaintiff/appellees and intervenor/ appellees, collectively class representatives, sought class certification in the district court alleging that the defendants/appellants, collectively Mobil, improperly deducted operating expenses from royalty payments made pursuant to a unitization agreement covering the Putnam Oswego Unit. The class representatives alleged thirteen theories for relief: 1) breach of fiduciary duty; 2) conversion; 3) actual fraud; 4) breach of contract; 5) breach of the duty of good faith and fair dealing; 6) violation of the Production Revenue Standards Act, 52 O.S. 2001 §570.10; 7) unjust enrichment; 8) accounting; 9) constructive trust; 10) breach of the Plan of Unitization; 11) deceit; 12) constructive fraud; and 13) punitive damages. After conducting a hearing spanning five days, the trial court certified the class. The Court of Civil Appeals affirmed in part and reversed in part. It determined that the trial court was correct in certifying all claims except those for conversion, fraud, deceit, and constructive fraud. On certiorari, the class representatives assert a single issue: whether the trial court erred in certifying for resolution by the class the claims of fraud, deceit, constructive fraud, and punitive damages. Under the facts presented, we determine that the claims of fraud, deceit, constructive fraud, and punitive damages are appropriate for class certification. COURT OF CIVIL APPEALS’ OPINION VACATED; TRIAL COURT AFFIRMED; CAUSE REMANDED. John J. Griffin, L. Mark Walker, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, Patton G. Lockridge, McGinnis, Lochridge & Kilgore, L.L.P., Austin, Texas, Brian S. Engle, Barrett, Burke, Wilson, Castle, Daffin, Frappier & Engel, L.L.P., Austin, Texas, for Defendants/ Appellants.

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C.B. Graft, Clinton, Oklahoma, Jeremy A. Thurman, Napoli Bern, L.L.P., Oklahoma City Oklahoma, Robert D. Tomlinson, Kenneth N. Mc-Kinney, Tomlinson & O’Connell, P.C., Oklahoma City, Oklahoma, for Plaintiffs/Appellees and Intervenor Plaintiffs/Appellees. WATT, J.: ¶1 We granted certiorari to address a single issue: whether the claims of fraud, deceit, constructive fraud, and punitive damages are appropriate for class certification? The facts reveal that: the majority of the royalty owners appear to be Oklahoma citizens; Mobil made representations as to the appropriate payments in Oklahoma; the representations were made and acted upon primarily in Oklahoma but also in other states; Mobil made the representations in Oklahoma to the royalty owners and to the Oklahoma Corporation Commission (Corporation Commission) in its successful attempt to obtain approval of the Plan of Unitization covering the Putnam Oswego Unit; Mobil did business associated with the production of the oil and gas from the Putnam Oswego Unit in Oklahoma; and the oil and gas products were produced exclusively in Oklahoma from this state’s energy reservoirs. Under these facts, we hold that the trial court did not abuse its discretion1 in certifying a class to address the enumerated claims.2 ¶2 Our determination is supported by this Court’s decision in Black Hawk Oil Co. v. Exxon Corp., 1998 OK 70, 969 P.2d 337. In Black Hawk, we held that potential weaknesses in fraud claims will not serve as grounds for refusal to certify a class and that where standardized written misrepresentations have been made to class members, class certification is appropriate. Also instructive, yet factually distinguishable is Ysbrand v. DaimlerChrysler Corp., 2003 OK 17, 81 P.3d 618, cert. denied, 542 U.S. 937, 124 S.Ct. 2907, 159 L.Ed.2d 812 (2004) in which we determined that common questions of law on fraud claims did not predominate for purposes of class certification. Nevertheless, Ysbrand also pointed to the importance of the consideration of §148 of the Restatement (2nd) of Conflict of Laws and the comments thereto in determining whether fraud and misrepresentation claims may be properly certified in a class action. Factual and Procedural Background ¶3 This cause has a long and tortured history which has generated a voluminous appellate 1000

record. In 1959, minerals began to be produced from the Putnam Oswego Field in west-central Oklahoma. To recover previously flared off products, Mobil built the Putnam Oswego Gas Plant in 1964. The plant is located in Thomas, Oklahoma. Four years later, in 1968, Mobil and other operators filed an application with the Oklahoma Corporation Commission (Corporation Commission) seeking formation of the Putnam Oswego Unit in an attempt to maintain and increase production from the field through secondary recovery operations. ¶4 To convince royalty owners of the efficacy of unitization, Mobil sent a letter dated April 11th, 1968 to royalty owners providing in pertinent part: “. . . The entire cost of unitization and pressure maintenance operations will be paid for by the Working Interest Owners, and, as in the past, your interest will be free and clear of any operating or investment costs. . . .”3 [Emphasis provided.] The same language appears in the Plan of Unitization approved by the Corporation Commission providing in pertinent part: “. . . A one-eight (1/8) part of the Unit Production allocated to each tract shall in all events be regarded as royalty to be distributed to and among, or the proceeds thereof paid to, the Owners of Royalty Interest, free and clear of all Unit Expense and free of any lien therefore. . . .”4 [Emphasis provided.] Thereafter, Mobil adopted the Fiske Formula5 as a tool for paying royalty owners. Pursuant to this formula, royalty owners were paid 85.17% of gross income from the sale of oil and gas products and Mobil retained 14.83% of sale proceeds. ¶5 The cause was filed in Custer County on May 18, 2001, as a class action on behalf of royalty owners. The class representatives alleged that Mobil’s utilization of the Fiske Formula resulted in the underpayment of royalties. Mobil sought removal to federal court. However, in January 2002, the federal court granted a motion to remand where the class representatives were allowed to amend their petition to add additional representative plaintiffs and defendants but were denied the right to add claims for conspiracy and breach of the duty to market. Mobil sought dismissal of a second

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amended petition which was denied in December of 2004. ¶6 During the pendency of proceedings in Custer County, another group of plaintiffs filed a similar class action in federal court on October 13, 2004. The plaintiffs involved in the Custer County action requested intervention in the federal cause seeking its dismissal. The dismissal was granted in September, 2005; and, the federal court plaintiffs filed a motion to intervene in the Custer County action. Later that month, intervention was granted based on an understanding that the intervenors would be bound by what had previously transpired in the district court action. Shortly thereafter, a group of defendants again sought removal to federal court which was denied on July 20, 2006. ¶7 The order certifying the class was filed on July 31, 2008. As finally defined, the class consists of all persons or entities who own or have owned a royalty interest (as that term is defined by the plan of unitization) in the unit from the effective date of the plan, November 1, 1968 to the present together with their heirs, legatees, beneficiaries, executors, representatives, successors, and assigns. Also included are persons or entities owning or who have owned a royalty interest in a tract included within the unit from which Mobil took and received in kind or separately disposed of all or a portion of the unitized substances allocated to said tract together with their heirs, legatees, beneficiaries, executors, representatives, successors, and assigns. Excluded from the class are: the United States government and its agencies; the officers and directors of the defendants; all subsidies or affiliates under the control of the defendants; legal representatives, heirs, successors, or assigns of any excluded person or entity; overriding royalty interest owners to the extent of their overriding royalty interest; and owners of production payments to the extent of their production payment interest.6 ¶8 The class contains approximately sixteenhundred (1,600) members. Mobil represents that royalty owners reside in forty (40) different states. However, neither party provides precise data on geographic distribution of the class members’ residences. Nevertheless, it appears that Oklahoma citizens constitute a majority of the royalty owners.7 ¶9 The class representatives alleged thirteen theories for relief: 1) breach of fiduciary duty; Vol. 81 — No. 11 — 4/17/2010

2) conversion; 3) actual fraud; 4) breach of contract; 5) breach of the duty of good faith and fair dealing; 6) violation of the Production Revenue Standards Act, 52 O.S. 2001 §570.10; 7) unjust enrichment; 8) accounting; 9) constructive trust; 10) breach of the Plan of Unitization; 11) deceit; 12) constructive fraud; and 13) punitive damages. After conducting a hearing spanning five days, the trial court issued its findings of fact, conclusions of law and order finding the class to be certifiable pursuant to 12 O.S. 2001 §20238 on July 31, 2008. In its opinion promulgated on October 23, 2009, the Court of Civil Appeals affirmed in part and reversed in part. It determined that the trial court was correct in certifying all claims except those for conversion,9 fraud, deceit, and constructive fraud. The petition for certiorari was filed on November 12, 2009. The class representatives filed a notice of subsequent jurisprudence on January 27, 2010. We granted certiorari on February 1, 2010 to address a single issue: whether the trial court erred in certifying for resolution by the class the claims of fraud, deceit, constructive fraud, and punitive damages. Standard of Review ¶10 Oklahoma courts may balance and analyze the interests in multi-state controversies in deciding the applicable law.10 Orders certifying a class will not be disturbed unless an abuse of discretion is shown.11 Because an order of certification is always subject to modification prior to judgment on the merits, a close question should be resolved in favor of sustaining class certification.12 The issue on appeal is not whether the trial court could have certified a class but whether it was an abuse of discretion not to certify.13 If the record demonstrates that the requisites for class action have been met, no abuse of discretion has occurred14 and the appellate court must affirm.15 We review de novo whether the trial court applied the correct legal standards in granting certification.16 ¶11 THE MAJORITY OF ROYALTY OWNERS APPEAR TO BE OKLAHOMA CITIZENS. MOBIL MADE WRITTEN REPRESENTATIONS AS TO THE APPROPRIATE ROYALTY PAYMENTS IN OKLAHOMA. THE REPRESENTATIONS WERE MADE AND ACTED UPON LARGELY IN OKLAHOMA. MOBIL MADE THE REPRESENTATIONS TO THE ROYALTY OWNERS AND TO THE OKLAHOMA CORPORATION COMMISSION. MOBIL DID BUSINESS IN

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OKLAHOMA ASSOCIATED WITH THE PRODUCTION OF OIL AND GAS FROM THE PUTNAM OSWEGO UNIT. OIL AND GAS PRODUCTS WERE PRODUCED EXCLUSIVELY IN OKLAHOMA FROM THIS STATE’S ENERGY RESERVOIRS. UNDER THESE FACTS, THE CLAIMS OF FRAUD, DECEIT, CONSTRUCTIVE FRAUD, AND PUNITIVE DAMAGES ARE APPROPRIATE FOR CLASS CERTIFICATION. ¶12 The class representatives argue that class certification of the fraud and associated causes of action are supported by this Court’s opinion in Black Hawk Oil Co. v. Exxon Corp., 1998 OK 70, 969 P.2d 337 holding that potential weaknesses in fraud claims will not serve as grounds for refusal to certify a class and that where standardized written misrepresentations have been made to class members, class certification is appropriate. Mobil disputes the efficacy of Black Hawk relying instead on our opinion in Ysbrand v. DaimlerChrysler Corp., 2003 OK 17, 81 P.3d 618, cert. denied, 542 U.S. 937, 124 S.Ct. 2907, 159 L.Ed.2d 812 (2004) which denied certification of the fraud issue where the misrepresentations involving the sale of vehicles were made and received in fifty-one (51) jurisdictions. We agree with the class representatives that Black Hawk supports their position and find Ysbrand distinguishable on the facts yet instructive in its application of §148 of the Restatement (2nd) of Conflict of Laws and the comments thereto. ¶13 Some consideration of the merits is appropriate in a class certification, but only insofar as it informs what individual issues might be a part of the adjudicatory process.17 Here, the Court of Civil Appeals reached an issue involving the merits of the cause determining that the class representatives had not “establish[ed] any element of a fraud claim.”18 ¶14 The issue resolved in Black Hawk is similar to the one presented here: whether the oil company properly reimbursed royalty owners for the sale of oil and gas products in their monthly accounting. We held in Black Hawk that potential weaknesses in fraud claims will not serve as grounds for refusal to certify a class and that where standardized written misrepresentations have been made to class members, certification need not be denied. Here, identical letters indicating that unitization would result in no imposition of costs of operation were transmitted to all royalty owners. 1002

The same representation was made to the Corporation Commission. ¶15 In Ysbrand, we decertified a fraud claim utilizing the factors enumerated in §148 of the Restatement (2nd) of Conflict of Laws and the comments thereto. In so doing, we determined that where each class member received the alleged misrepresentation involving air bags incorporated in vehicles sold in each of the fifty-one (51) jurisdictions, presumably their state of residence, certification of the fraud claim was inappropriate. Nevertheless, when the same factors considered in Ysbrand are applied here, it is clear that there was no abuse of discretion19 in certifying the fraud issue. ¶16 Here, as in Ysbrand, we look to §148 and the comments thereto for direction in resolving the issue of class certification on the fraud-related issues. Subsection 2 of §148 addresses the situation presented. It provides in pertinent part: “When the plaintiff’s action in reliance took place in whole or in part in a state other than that where the false representations were made, the forum will consider such of the following contacts, among others, as may be present in the particular case in determining the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties: (a) the place, or places, where the plaintiff acted in reliance upon the defendant’s representations, (b) the place where the plaintiff received the representations, (c) the place where the defendant made the representations, (d) the domicile, residence, nationality, place of incorporation and place of business of the parties, (e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and (f) the place where the plaintiff is to render performance under a contract which he has been induced to enter by the false representations of the defendant.” In Ysbrand, the Court looked to the comments to this section and determined that because the class members presumably received the representation in their home state, their place of

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domicile, the laws of each of the fifty-one (51) jurisdictions would be applicable making certification of the fraud claim impracticable. ¶17 Here, unlike the situation in Ysbrand, the majority of the members of the class appear to be Oklahoma residents.20 In addressing consideration of (2)(a), above, the Restatement Comments provide that a plaintiff’s reliance is a more important contact when it is confined to a single state than when it is divided among two or more states. Where, as in the instant cause, the reliance takes place in one state and a lesser part in another, the first state (Oklahoma) has a more weighty contact with the occurrence than does the latter.21 Under this analysis, application of Oklahoma law to the fraud issue takes precedence over the laws of one of the other forty (40) states. In addition, the majority of the representations made were to and received by Oklahoma citizens in their state of domicile, Oklahoma. ¶18 In Ysbrand, the representations were made in more than one state. Here, all the representations arose from an attempt by Mobil to obtain unitization of the Putnam Oswego Field. They were made in Oklahoma to a governmental entity, the Corporation Commission, and to the majority of the class members. The commentary to the Restatement provides that, in such situations, this element, in and of itself, is important.22 ¶19 Other Restatement Comments also support allowing the fraud claim to go forward as a class action. The comments provide that where the subject of the transaction is a tangible thing, the place where the thing is situated at the time of the transaction is a significant contact especially where both parties are aware that the thing was situated in this place at that time. Furthermore, the situs of the thing is particularly relevant if it involves an interest in land.23 It is undeniable that the oil and gas products sought to be unitized were to be pumped from the Putnam Oswego Unit located entirely within the boundaries of Oklahoma. Upon their production, they became tangible personal property24 collected and sold from Oklahoma reservoirs.25 ¶20 The facts presented, analyzed in the light Black Hawk and Ysbrand along with §148 and the comments thereto, weigh in favor of certification. Therefore, we hold that the claims of fraud, deceit, constructive fraud, and punitive damages are appropriate for class certification. Vol. 81 — No. 11 — 4/17/2010

CONCLUSION ¶21 On remand, the question to be determined by the trial court is whether Mobil was justified in paying royalties at 85.17% of the gross sale price of minerals extracted from the Putnam Oswego Unit where it represented that royalty payments would be free and clear of unit expense.26 We express no opinion on what will or should be the ultimate outcome in that proceeding. Our task today is merely to determine whether there was an abuse of discretion in certifying the claims of fraud, deceit, constructive fraud, and punitive damages. Under the facts presented, considered by us here in light of this Court’s pronouncements in Black Hawk Oil Co. v. Exxon Corp., 1998 OK 70, 969 P.2d 337 and Ysbrand v. DaimlerChrysler Corp., 1003 OK 17, 81 P.3d 618, cert. denied, 542 U.S. 937, 124 S.Ct. 2907, 159 L.Ed.2d 812 (2004) along with §148 of the Restatement (2nd) of Conflict of Laws and the comments thereto, we determine that the trial court did not abuse its discretion in certifying a class to address the enumerated claims. COURT OF CIVIL APPEALS’ OPINION VACATED; TRIAL COURT AFFIRMED; CAUSE REMANDED. EDMONDSON, C.J., HARGRAVE, OPALA, WATT, COLBERT, REIF, JJ. — CONCUR TAYLOR, V.C.J., WINCHESTER, J. — DISSENT KAUGER, J. — NOT PARTICIPATING 1. Black Hawk Oil Co. v. Exxon Corp., 1998 OK 70, ¶10, 969 P.2d 337; Shores v. First City Bank Corp., 1984 OK 67, ¶4, 689 P.2d 299. 2. This Court has recognized that class certification may be appropriate in a cause involving cost disputes in the oil industry. See, Cactus Petroleum Corp. v. Chesapeake Operating, Inc., note 11, infra. Similar factors to those presented herein led to classification in Grant Thornton LLP v. Suntrust Bank, 133 SW.3d 342 (Tex.App. 2004) [Fraud and misrepresentation claims held certifiable where: class members received representations outside state; company making representations was headquartered in state; audit occurred in state; and some class members resided in state.]. 3. Exhibit 11, Vol. 2, Exhibits to Motion for Class Certification, Letter from Mobil Oil Corporation to Royalty Owners, dated April 11, 1968. 4. Plan of Unitization of Putnam Oswego Unit, filed April 19, 1968, §5.3. Record, File No. 1, p.25. 5. The Fiske Formula was originated by Leland E. Fiske when he was Chief Oil and Gas Engineer for the Dallas Region of the Internal Revenue Service. Under the formula, the price for gas is determined by deducting from the sale price of products, the costs of operating the absorption plant, the depreciation on the plant, and a reasonable return on the investment in the plant, usually 10 percent per year. L. Fiske, “Tax Aspects of Secondary Recovery Operations,” 6 RMMLFINST 6 (1961). 6. Hearing on Motion to Strike/Motion to Intervene, September 22, 2005, Record, File No. 4, p. 652. 7. This determination was made from the examination of Exhibit 88 to the Motion for Class Certification and was gleaned by counting the number of Oklahoma addresses to which royalty checks appear to have been disbursed. The document seems to be a pay deck listing the royalty owners and their addresses. The pay deck is attached to a letter

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dated June 18, 1999 and addressed to an attorney for Mobil from an attorney with Hall, Estill, Hardwick, Gable, Golden & Nelson. Pay decks are set up by analysts to keep track of ownership of oil and gas properties. See, P. Gushee, P.C., “How the Ringmaster Orchestrates in a Three-Ring Circus: Communications between the Company, Attorney, and Landman,” 2007 No. 4 RMMFL-INST Paper No. 22. The class representatives do assert that the majority of Putnam Oswego Unit owners were Oklahoma residents at least in 1998. Exhibit 95, Exhibits o Motion for Class Certification, entitled “Choice of Law Analysis for Each Category of Claim.” 8. Section 2023 of title 12 was amended effective November 1, 2009. The amendments are found in subsection C of the statute and do not relate to the trial court’s decision to certify the instant cause. 9. Conversion does not lie for a debt. Welty v. Martinaire of Oklahoma, Inc., 1994 OK 10, ¶6, 867 P.2d 1273; Steenbergen v. First Fed. Sav. & Loan, 1987 OK 122, ¶8, 753 P.2d 1330. 10. Black Hawk Oil Co. v. Exxon Corp., see note 1, supra; Shores v. First City Bank Corp., see note 1, supra. 11. Black Hawk v. Exxon, see note 1, supra; Cactus Petroleum Corp. v. Chesapeake Operating, Inc., 2009 OK 67, ¶12, 222 P.3d 12; Masquat v. DaimlerChrysler, Corp., see note 17, infra. 12. Perry v. Meek, 1980 OK 151, ¶19, 618 P.2d 934; Lobo Exploration Co. v. Amoco Production Co., 1999 OK CIV APP 112, ¶2, 991 P.2d 1048, cert. denied, 529 U.S. 1124, 120 S.Ct. 1996, 146 L.Ed.2d 821 (2000). 13. Cactus Petroleum Corp. v. Chesapeake Operating, Inc., see note 11, supra; Boughton v. Cotter Corp., 65 F.3d 823, 827 (10th Cir. 1995). 14. Harvell v. Goodyear Tire & Rubber Co., 2006 OK 24, ¶9, 164 P.3d 1028; Black Hawk Oil Co. v. Exxon Corp., see note 1, supra. 15. Cuesta v. Ford Motor Co., see note 17, infra; Black Hawk Oil Co. v. Exxon Corp., see note 1, supra. 16. Cuesta v. Ford Motor Co., see note 17, infra; Masquat v. DaimlerChrysler Corp., see note 17, infra; Scoufus v. State Farm Fire & Cas. Co., 2001 OK 113, ¶1, 41 P.3d 366. 17. Cuesta v. Ford Motor Co., 2009 OK 24, ¶25, 209 P.3d 278, cert. denied, ___ U.S. ___, 130 S.Ct. 258, 175 L.Ed.2d 131 (2009); Masquat v. DaimlerChrysler Corp., 2008 OK 67, ¶10, 195 P.3d 48.

18. Weber v. Mobil Oil Corp., No. 106,241, Oklahoma Court of Civil Appeals (2009), ¶36. 19. Cuesta v. Ford Motor Co., see note 17, supra; Black Hawk Oil Co. v. Exxon Corp., see note 1, supra. 20. See note 7, supra, and discussion therein. 21. Restatement Comment to §148 Fraud and Misrepresentation providing in pertinent part: “. . . Comment on Subsection (2): . . . f. The place, or places, where the plaintiff acted in reliance upon the defendant’s representations. . . . When a major part of the action in reliance takes place in one state and a lesser part in another, the first state has a more important contact with the occurrence than does the later. . . .” [Italics in original.] 22. “. . . Comment on Subsection (2): . . . h. The place where the defendant made the false representations…. The making of the representations provides a more important contact when the representations are made only in one state than when they are made in two or more. When a major part of the representations is made in one state and a lesser part in another, the first state has a more important contact with the occurrence than does the latter. . . .” [Italics in original.] 23. Restatement Comment to §148 Fraud and Misrepresentation providing in pertinent part: “. . . Comment on Subsection (2): . . . i. Other contacts. . . . When the subject of the transaction between the parties is a tangible thing the place where the thing is situated at the time of the transaction is a contact of some importance provided, at least, that both parties were aware that the thing was situated in this place at that time. This contact is of particular importance when the subject of the transaction is land. . . .” [Italics in original.] 24. Koch Fuels, Inc. v. State ex rel. Oklahoma Tax Comm’n, 1993 OK 140, ¶12, 862 P.2d 471; Champlin Exploration, Inc. v. Western Bridge & Steel Co., 1979 OK 108, ¶16, 597 P.2d 1215. 25. Royalty to be derived from future mineral leases is real property and contracts involving such royalty are governed by the law of the situs. Denney v. Teel, 1984 OK 63, ¶8, 688 P.2d 803, 56 A.L.R.4th 527. 26. See ¶4, supra, and discussion therein.

James Patterson Memorial Golf Tournament Friday, May 7th, 2010 • 2 p.m. – Shotgun

Format:

Four-person scramble. Attorneys, Judges, Law School Students & Legislators Only

Team Make-up: You may choose the four players on your team or enter as an individual and be paired with three other players to form a team. Teams will be handicapped according to ability. Entry Fee: $100 – Non-Territory Members $25 – Territory Members Includes Green Fees, Cart Fees, Practice Balls & Awards Dress Code: All players must wear a collared shirt. Also please note that The Territory does NOT allow any metal spikes or denim pants/shorts. ***The Stephens County Bar Association is unable to pay for any green fees. The golf tournament will follow the annual Law Day banquet which will be held at the Duncan Golf and Country Club beginning at 12 p.m. If you have any questions, please contact E.J. Buckholts II at ejbuckholts@ebhlaw.com or by phone (580) 252-3240. Please complete the form below and return with a check in the appropriate amount made payable to The Territory, P.O. Box 1228, Duncan, OK 73534. LIMITED TO FIRST 60 PLAYERS!!! Player 1_____________________________________________ Handicap Index__________ Player 2_____________________________________________ Handicap Index__________ Player 3_____________________________________________ Handicap Index__________ Player 4_____________________________________________ Handicap Index__________

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THE MUSCOGEE (CREEK) NATION DISTRICT COURT presents THE 8TH ANNUAL

“DOING BUSINESS IN INDIAN COUNTRY”

May 20th and 21st , 2010 River Spirit Event Center Tulsa Oklahoma Moderators: Shelly Grunsted, Professor - University of Oklahoma Patrick E. Moore, Muscogee (Creek) Nation District Court Judge Faculty: Some of our many faculty include:

George Skibine- Acting Chair – National Indian Gaming Commission Larry Echohawk – Assistant Secretary for Indian Affairs (Pending Confirmation) Judith V. Royster, , Professor of Law, University of Tulsa Dr. Alan Meister – Nathan and Associates John Williams – Connors and Winters LLP Richard Monette – University of Wisconsin Kathleen Smith – University of Oklahoma Klint Cowen – Hobbs, Staus, Dean & Walker NEW PROGRAM, NEW LOCATION, SAME GREAT CLE EXPERIENCE

DAY 1: Areas covered include: Sovereignty, Ethics, Land Use and Trust Rights, Latest Indian Law Developments for Indian Country, Tribal Water Rights DAY 2: Indian Gaming Issues including Class II and Class III games, Entertainment at Indian Casinos Watch future bar ads for daily schedule and speakers- or check us out at: muscogeecreektribalcourt.org Tuition Structure: $200.00 MCN Bar Members – Early Bird (by May 7th 2010) $225.00 Non-MCN Bar Members – Early Bird (by May 7th 2010) Walk-in registrations - $250.00 walk-in (if space available)

Cancellations will be accepted at any time prior to seminar date, however, a cancellation fee of $50.00 will be charged. ----------------------------------------------------------------------------------------------------------------------------------------------------------------

REGISTRATION FORM DOING BUSINESS IN INDIAN COUNTRY-2010 Name_________________________________________________________________________ Firm/Organization_______________________________________________________________ Address________________________________________________________________________ City____________________________ State___________________ Zip____________________ OBA Member ___Yes ___No OBA Bar # ______ E-Mail________________________________ Make Check payable to Muscogee (Creek) District Court - CLE Program and mail entire page to: Muscogee (Creek) District Court, P.O. Box 652, Okmulgee, Oklahoma 74447 – Ph. 918-758-1400 13* Hours of CLE Credit with 1 hour of ETHICS *Applied for

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A g e n d a

Sovereignty Symposium 2010 As Long as the Grass Grows and the Rivers Flow June 2 – June 3, 2010

Skirvin - Hilton Hotel, Oklahoma City, Oklahoma Presented by The Oklahoma Supreme Court • The Oklahoma Indian Affairs Commission • The Indian Law Section of the Oklahoma Bar Association • The Oklahoma Arts Council • The University of Tulsa College of Law • The University of Oklahoma College of Law • Oklahoma City University School of Law and The Sovereignty Symposium, Inc. 16 hours of CLE credit for lawyers will be awarded, including 1 hour of ethics. NOTE: Please be aware that each state has its own rules and regulations, including the definition of “CLE”; therefore, certain programs may not receive credit in some states. The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal issues could be exchanged in a scholarly, non-adversarial environment. The Supreme Court espouses no view on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court.

Wednesday, June 2, 2010 a.m. 4.5 CLE credits / 1 ethics included p.m. 3 CLE credits / 0 ethics included

Wednesday Morning: 7:30 – 4:30...................................... Registration 8:00 – 8:30.................................. Complimentary Continental Breakfast

Honorable Kelly Haney, Seminole, Oklahoma.

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8:30 – 5:30.............................................PANEL B: ECONOMIC CO-OPERATION, INTERNATIONAL TRADE AND INVESTMENTS CO-MODERATORS:

10:30 – 10:45 ..........................Morning Coffee/ Tea Break

Dr. James C. Collard, Director of Planning and Economic Development, Citizen Potawatomi Nation, Shawnee, Oklahoma.

9:30 – 12:00 ................................... PANEL A: THE YEAR OF THE HORSE

Kay Bills, (Osage), President and Founder, Strategic Native Partnerships (SNAP), Oklahoma City, Oklahoma.

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MODERATOR: Honorable Tom Colbert, Justice, Supreme Court of Oklahoma, Tulsa, Oklahoma. Madeleine Pickens, Help Save America’s Wild Horses, Dallas, Texas. Honorable Gregory E. Pyle, Chief, Choctaw Nation, Durant, Oklahoma.

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Honorable Natalie Shirley, Oklahoma Secretary of Commerce, Oklahoma City, Oklahoma. Honorable John “Rocky” Barrett, Chairman, Citizen Potawatomi Nation, Shawnee, Oklahoma. Honorable Shane Jett, Oklahoma House of Representatives, Tecumseh, Oklahoma.

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Don Chapman, (Mohegan), Côqayohômuwôk, Senior Advisor on Native American Affairs, Office of the Secretary, United States Department of Commerce, Washington, DC 20230. Jeff Finkle, President and CEO, International Economic Development Council, Washington, D.C. Nola Miyasaki, Center for Innovation and Economic Development, Oklahoma State University, Stillwater, Oklahoma. Vincent G. Logan, The Nations Group, LLC, New York, New York.

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8:30– 12:00........................................... PANEL C: IN LAND WE TRUST MODERATOR: Honorable Deborah Barnes, Judge, Oklahoma Court of Civil Appeals, Tulsa, Oklahoma. CO-MODERATOR: Leah Harjo-Ware To be Named, USDOI, Office of the Special Trustee for American Indians, “Maximizing Income from the Land Base for Trust Beneficiaries.” Alan Woodcock, Esq., Field Solicitor, USDOI, Tulsa, Oklahoma, “Putting Land into Trust post Carcieri v. Salazar and the Legislative Fix.” G. William Rice, (United Keetoowah Band of Cherokee Indians) Associate Professor of Law, University of Tulsa, College of Law, Tulsa, Oklahoma, “Alternate Ways to Designate Indian Lands.” M. Alexander Pearl, Esq., Kilpatrick, Stockton, Washington, D.C., “Struggling to Protect the Land Base — the Tribal Trust Cases.” Angie Hamilton, (Kiowa), Department of the Interior, Office of Hearings and Appeals, Aberdeen, South Dakota, “Passing Guardianship over the Land Base — Federal and Tribal Probate Codes.”

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8:30 – 12:30 .................................. PANEL D: GAMING COMPACTS MODERATOR: Mr. Cal Hobson, Executive Director of Operations, University Outreach, University of Oklahoma, Norman, Oklahoma. Vol. 81 — No. 11 — 4/17/2010

Honorable Scott Meacham, Oklahoma State Treasurer, Oklahoma City, Oklahoma. Scott Wells, President and General Manager, Remington Park, Oklahoma City, Oklahoma. Bob Rabon, Esq., (Chickasaw), Rabon, Wolf and Rabon, Hugo, Oklahoma. Kirke Kickingbird, Hobbs, Straus, Dean and Walker, Oklahoma City, Oklahoma.

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8:30 – 5:30...................................... PANEL E: TRIBAL AND STATE JUDICIAL COLLABORATION: JURISDICTIONAL ISSUES MODERATOR: Honorable Phillip Lujan, Presiding Judge, Citizen Potawatomi Nation Tribal Court, Shawnee, Oklahoma. SESSION ONE: Issues In Juvenile/deprived And Neglect Cases CO-MODERATOR: Honorable Darrell Dowty, Project Director, American Indian Resource Center, Institute for Native Justice, Bureau of Justice Assistance Tribal Court GrantTraces; Judge, Judicial Appeals Tribunal, Cherokee Nation; Tribal Court Judge, Tahlequah, Oklahoma. Honorable Barry Denny, Associate District Judge, Delaware County, Jay, Oklahoma. Honorable Elizabeth Brown, Associate District Judge, Adair County, Stillwell, Oklahoma. Steve Hager, Esq., Oklahoma City, Oklahoma. Honorable Korey Wawassuck, Associate Judge, Leech Lake Band of Ojibwe, Case Lake, Minnesota. SESSION TWO: Ethics Honorable John F. Reif, Justice, Supreme Court of Oklahoma, Skiatook, Oklahoma.

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SESSION THREE: Uniformity In Judgments And Sentences CO-MODERATOR: Honorable Stacy Leeds, Professor of Law and Director of the Tribal Law and Government Center, University of Kansas School of Law, Lawrence, Kansas. Trent Shores, Assistant United States Attorney, Tulsa, Oklahoma. Honorable Dianne Barker Harold, Associate District Judge, Pawnee Nation, Fort Gibson, Oklahoma. Honorable John E. Parris, Sand Springs, Oklahoma. Honorable Bret Burns, District Attorney, District Six, Duncan, Oklahoma. SESSION FOUR: Historical Underpinnings Of Tribal Laws Dr. Marcia Haag, Associate Professor of Linguistics, University of Oklahoma, Norman, Oklahoma, “The Journal of Peter Pitchlynn, 1826-1828.” Henry Willis, (Choctaw), Community Teacher and Consultant for the Language Program, Choctaw Nation of Oklahoma, Durant, Oklahoma, “The Journal of Peter Pitchlynn, 1826-1828.”

Wednesday Afternoon: 1:15 – 2:30 .................. OPENING CEREMONY AND KEYNOTE ADDRESS

Invocation: Honorable Lawrence Hart (Cheyenne), Traditional Cheyenne Peace Chief, Clinton, Oklahoma. Welcome: Chief Justice James Edmondson, Chief Justice, Oklahoma Supreme Court, Muskogee, Oklahoma. Welcome: Honorable Bill Follis, Chairman, Oklahoma Indian Affairs Commission, Oklahoma City, Oklahoma. Welcome: Allen M. Smallwood, President, Oklahoma Bar Association, Oklahoma City, Oklahoma. Welcome: Honorable Jari Askins, Lieutenant Governor, State of Oklahoma, Oklahoma City, Oklahoma. Address: Honorable Tom Cole, United States House of Representatives, Moore, Oklahoma. Closing Prayer: The Right Reverend William C. Wantland (Seminole), Seminole, Oklahoma. 3:30 – 3:45 ............................ Tea/Cookie Break for all Panels

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2:30 – 5:30 ............................................PANEL A: ECONOMIC CO-OPERATION, INTERNATIONAL TRADE AND INVESTMENTS

Camp Call: Honorable Lawrence Hart (Cheyenne), Traditional Cheyenne Peace Chief, Clinton, Oklahoma.

CO-MODERATORS:

Master of Ceremonies — Honorable Rudolph Hargrave, Justice, Supreme Court of Oklahoma, Wewoka, Oklahoma.

Dr. James C. Collard, Director of Planning and Economic Development, Citizen Pottawatomi Nation, Shawnee, Oklahoma.

Presentation of Flags by Tribal Leaders.

Ms. Kay Bills, Oklahoma City, Oklahoma.

Honor Guards: Vietnam Era Veterans Intertribal Association, Kiowa Black Leggings. Drum: Southern Nation Singers.

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[A Continuation of the Morning Panel]

Dr. Gavin Clarkson, Associate Professor of Law, University of Houston Law Center, Houston, Texas, “The Impact of the American Recovery and Reinvestment Act of 2009 on Native American Tribes.”

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Alvin Harrell, Professor of Law, Oklahoma City University, Oklahoma City, Oklahoma.

Giovanna Gismondi, Adjunct Professor, University of Oklahoma College of Law, Norman, Oklahoma.

Gary Pitchlynn, Esq., (Choctaw), Pitchlynn and Williams, Norman, Oklahoma.

Freddy Peccereli: Guatemalan forensic anthropologist.

Ken Bellmard, Esq. (Kaw), Rubenstein, McCormick and Pitts, Edmond, Oklahoma.

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2:30 – 5:30 ............................................PANEL B: MAKING REAL ESTATE INTERESTS WORK IN INDIAN COUNTRY MODERATOR: Frederick H. Miller, Professor of Law Emeritus, University of Oklahoma College of Law, Norman, Oklahoma. Dale Higer, Esq., Uniform Law Commissioner, Chair of Uniform Law Commission Study Committee on Model Tribal Legislation on Collateralization and Probate Transfer of Interests in Real Property, Boise, Idaho. David English, Law Professor, University of Missouri-Columbia, Columbia, Missouri

Jose Sosof, Maya victim of a massacre in Santiago Atitlan. Rosalina Tuccoy, National Reparations Commission, Guatemala. Harvey Pratt, Oklahoma State Bureau of Investigation, Oklahoma City, Oklahoma.

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2:30 –5:30 .............................................PANEL E: KEEPING TRIBAL COMMUNITIES SAFE — INFORMATION SHARING FOR TRIBAL LAW ENFORCEMENT, HOMELAND SECURITY AND DISASTER RESPONSE AGENCIES MODERATOR: Christopher Chaney, Deputy Director, Office of Tribal Justice, United States Department of Justice, Washington, D.C. Joe LaPorte, Fellow, National Counter Terrorism Center, Washington, D.C.

Douglas Nash, Esq., Institute for Indian Estate Planning and Probate, Seattle University School of Law, Seattle, Washington

Tammy Hughes, Crime Analyst, Chickasaw Nation Lighthorse Police, Ada, Oklahoma.

2:30 – 5:30............................................ PANEL C: TRIBAL AND STATE JUDICIAL COLLABORATION: JURISDICTIONAL ISSUES, COMMON CONCERNS AND THE PATH TO SOLUTIONS

————————

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[A Continuation of the Morning Panel]

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Kim Carter, Fusion Center Coordinator, Oklahoma Information Fusion Center, Oklahoma City, Oklahoma.

Thursday, June 3, 2010 a.m. 4.5 CLE credits / 0 ethics included p.m. 4 CLE credits / 0 ethics included

Thursday Morning:

2:30 – 5:30 ...........................................PANEL D: INDIGENOUS RIGHTS AND JUSTICE IN GUATEMALA: THE MAYAN EXPERIENCE MODERATOR: Honorable Marian P. Opala, Justice, Supreme Court of Oklahoma, Oklahoma City, Oklahoma.

7:30 – 4:30.......................................Registration 8:00 – 8:30.................................. Complimentary Continental Breakfast 10:30 – 10:45 ..........................Morning Coffee/ Tea Break

Clyde Snow, Ph.D, Forensic Anthropologist, Norman, Oklahoma. Vol. 81 — No. 11 — 4/17/2010

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________ 8:30 – 12:00 ..........................................PANEL A: INDIAN GAMING: A REGULATORY PERSPECTIVE MODERATOR: Matthew Morgan, Esq., Chickasaw Nation Gaming Commissioner, Ada, Oklahoma. Jeff Keel, Esq., General Counsel for the Chickasaw Nation Gaming Commission, Ada, Oklahoma. Elizabeth Homer, Esq., (Osage) Homer Law, Chartered, Washington, D.C. Steffani Cochran, Esq., Associate Commissioner, National Indian Gaming Commission, Washington D.C. Joe Valandra, former Chief of Staff, National Indian Gaming Commission, Washington D.C. Jerome L. “Jerry” Levine, Esq., Holland and Knight, Los Angeles, California. Michael Anderson, Esq., Anderson, Tuell, Washington, D.C.

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8:30 – 12:30 ..........................................PANEL B: SESSION ONE: A UNITED FORCE FOR HEALTH: THE TRIBES AND MEDICAL RESEARCH MODERATOR: Dr. Kenneth Copeland, Jonas Professor and Chief, Section of Pediatric Diabetes/Endocrinology, University of Oklahoma Medical School, Oklahoma City, Oklahoma. Mickey Peercy, Choctaw Nation of Oklahoma, Durant, Oklahoma. SESSION TWO: FINANCING HEALTH CARE: CONTRACT HEALTH SERVICES IN THE INDIAN HEALTH CARE SYSTEM MODERATOR: P. Benjamin Smith, M.A., Deputy Director, Office of Tribal SelfGovernance, Indian Health Service, Rockville, Maryland. Hankie Ortiz, Esq., Director, Office of Tribal Self-Governance, Indian Health Service, Rockville, Maryland.

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Michael D. Mahsetky, Esq., Director, Congressional and Legislative Affairs, Indian Health Service, Rockville, Maryland. Carl Harper, Director, Office of Resource Access and Partnership, Indian Health Service, Rockville, Maryland. Terry Schmidt, Director, Contract Health Services, Oklahoma City Area Office, Indian Health Service, Oklahoma City, Oklahoma. Mickey Peercy, Executive Director of Health Services, Choctaw Nation of Oklahoma, Durant, Oklahoma.

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8:30 – 12:00 ......................................... PANEL C: TRIBAL TRANSIT — PUBLIC TRANSPORTATION FOR INDIAN COUNTRY MODERATOR: Tim Gatz, Director of Capital Programs, Oklahoma Department of Transportation, Oklahoma City, Oklahoma. Jay Adams, Director for Tribal Coordination, Oklahoma Department of Transportation, Oklahoma City, Oklahoma. Angie Gilliam, Transit Director, Chickasaw Nation, Ada, Oklahoma. Debbie McGlasson, Transit Director, Pelivan Transit and the 9 NE Tribes of Oklahoma. Ken LaRue, Transit Division Manger, Oklahoma Department of Transportation, Oklahoma City, Oklahoma.

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8:30 – 12:00 .........................................PANEL D: CHILDREN’S ISSUES MODERATOR: Honorable Howard Hendrick, Esq., Director, Oklahoma Department of Human Services, Oklahoma City, Oklahoma. Honorable Tom Walker (Wyandotte/ Cherokee), District Judge, Ardmore, Oklahoma, “The Long View: A History of and Progress for Indian Children involved with Child Welfare and the role of ICWA.”

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Ben Loring, Assistant District Attorney, Member, Oklahoma Commission on Children and Youth, Miami, Oklahoma, “The Biggest Successes and the Biggest Challenges for Children.” Honorable Gary Miller, District Judge, El Reno, Oklahoma, “What I Learned in the Executive Branch.” Ann Davis, Oklahoma Department of Human Services, Oklahoma City, Oklahoma. Billye Leitka, Indian Child Welfare Director for the Seminole Nation and Co-Chair of the Tribal State Collaboration Workgroup, “Tribal Relations and OKDHS: Working Together for Indian Children. Sue D. Tate, M.S., Alternative Dispute Mediation Director and Court Improvement Coordinator, Administrative Office of the Courts Oklahoma City, Oklahoma. Howard Hendrick, Esq., Director, Oklahoma Department of Human Services, Oklahoma City, Oklahoma, “Wrapup: Issues Persons Would Like to Consider Together to Improve the Future for Indian Children.”

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8:30 – 12:00 .......................................... PANEL F: WATER LAW MODERATOR: Honorable Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, Oklahoma. Stephen Greetham, Esq., Special Counsel, Water and Natural Resources, Chickasaw Nation, Ada, Oklahoma. Judith Royster, Professor of Law, University of Tulsa College of Law, Tulsa, Oklahoma. Honorable J. D. Strong, Oklahoma Secretary of the Environment, Oklahoma City, Oklahoma. Dr. Will Focht, Director,The Oklahoma Water Resources Research Institute, Stillwater, Oklahoma. Susan Work, Esq., Senior Assistant Attorney General, Cherokee Nation, Tahlequah, Oklahoma.

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Honorable Cheryl McClellan, Second Chief, Sac and Fox Nation, Stroud, Oklahoma.

Thursday Afternoon: 3:30 – 3:45 ............................ Tea/Cookie Break for all Panels

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1:30 – 5:00 ............................................Panel A: GAMING MODERATOR: Jess Green, Esq., (Chickasaw), Ada, Oklahoma. Matthew Morgan, Esq., Chickasaw Nation Gaming Commissioner, Ada, Oklahoma. Gary Pitchlynn, Esq. (Choctaw), Pitchlynn and Williams PLLC, Norman, Oklahoma. Elizabeth L. Homer, Esq. (Osage), Homer Law Firm, Washington, D.C. Graydon Dean Luthey, Jr., Hall, Estill, Tulsa, Oklahoma. Honorable Steffani Cochran, National Indian Gaming Commission, Washington, D.C. Mark Van Norman, (Cheyenne River Sioux Tribe of South Dakota), Executive Director, National Indian Gaming Association, Washington, D.C. Ernie Stevens, Jr., National Indian Gaming Association, Washington, D.C. D. Michael McBride III, Esq. Crowe and Dunlevy, Tulsa, Oklahoma.

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1:30 – 5:00.............................................PANEL B: CRIMINAL LAW MODERATOR: Honorable Sanford C. Coats, Esq., United States Attorney for the Western District of Oklahoma, Oklahoma City, Oklahoma. Arvo Mikkanen, Esq. (Kiowa/Comanche), Assistant United States Attorney for the Western District of Oklahoma, Oklahoma City, Oklahoma, “CrossDeputization of State, Federal and Tribal Law Enforcement.”

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Don Gifford, Esq., (Cherokee), Assistant United States Attorney for the Western District of Oklahoma, Oklahoma City, Oklahoma, “Developments in Sex Offender Registration Efforts.” Shannon Henson, Esq., and Dean Burris, Esq., Assistant United States Attorneys for the Eastern District of Oklahoma, Muskogee, Oklahoma, “Project Safe Neighborhood Initiatives.” R. Trent Shores, Esq., (Choctaw) and Clint Johnson, Esq., Assistant United States Attorneys, for the Northern District of Oklahoma, Tulsa, Oklahoma, “White Collar Crimes and Public Corruption.”

________ 1:30 – 5:00............................................PANEL D: WATER LAW [A Continuation of the Morning Panel] MODERATOR: Lindsay Robertson, Professor of Law, University of Oklahoma College of Law. John E. Echohawk, Esq., Director, Native American Rights Fund, Boulder, Colorado. Cara Cowan Watts, Cherokee Nation Tribal Council, Tahlequah, Oklahoma.

1:30 – 5:00............................................ PANEL C: NATIVE AMERICAN EDUCATION AND SOVEREIGNTY

1:30 – 5:00.............................................PANEL E: THE FIRST AMERICANS & THE INTERNATIONAL PROTECTION OF INDIGENOUS HUMAN RIGHTS ROUND TABLE IN CELEBRATION OF THE LIFE AND WORK OF DR. CYNTHIA PRICE COHEN

MODERATOR: G. William Rice, Associate Professor of Law, University of Tulsa, College of Law, Tulsa, Oklahoma.

MODERATOR: Keith D. Nunes, Scholar-in-Residence, Holocaust, Genocide & Human Rights, Kean University.

Gloria Valencia-Weber, University of New Mexico School of Law, Albuquerque, New Mexico.

James Anaya, James J. Lenoir Professor of Human Rights Law and Policy, The University of Arizona College of Law, Tucson, Arizona.

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Stacy Leeds, Professor of Law and Director of the Tribal Law and Government Center, University of Kansas School of Law, Lawrence, Kansas. Jonodev Chaudhuri, Esq., The Chaudhuri Law Office, Tempe, Arizona. Dr. Henrietta Mann, President, Cheyenne/Arapahoe Tribal College, Weatherford, Oklahoma. Dr. Jerry C. Bread, Sr., Native American Studies, University of Oklahoma, Norman, Oklahoma. Dr. Richard Allen, Cherokee Nation, Tahlequah, Oklahoma. Dr. Tom Holton, University of Arizona, Tuscon, Arizona. Dr. Hugh Foley, Rogers State University, Claremore, Oklahoma. Dr. Joe Watkins, Director, NAS, University of Oklahoma.

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Christina M. Cerna, Adjunct Professor of Law, Georgetown University; Principal Human Rights Specialist, Inter-American Commission on Human Rights, Organization of American States, Washington, D.C. Dr José Martínez Cobo, United Nations Special Rapporteur to the SubCommission on Prevention of Discrimination and Protection of Minorities, New York, New York. Dr. Kenneth Dollarhide, Dean, College of Humanities and Social Sciences, Kean University, Union, New Jersey. Ellen L. Lutz, Esq., M.A. Executive Director, Cultural Survival, Cambridge, Massachusetts. Winston Nagan, FSRA, Samuel Dell Research Scholar, Professor of Law, Affiliate Anthropology Professor, University of Florida, Gainesville, Florida.

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Ánde Somby, traditional Sami Joik Artist, Research Scholar Faculty of Law, University of Tromsø, Buolbmat, Norway.

Siegfried Wiessner, Professor of Law and Director, St. Thomas University Intercultural Human Rights LLM Program, Miami, Florida.

The Sovereignty Symposium registration and hotel information are available at

www.thesovereigntysymposium.com

Vol. 81 — No. 11 — 4/17/2010

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Court of Criminal Appeals Opinions 2010 OK CR 7 JACK AARON LOGSDON, Appellant, v. STATE OF OKLAHOMA, Appellee. Case No. F-2008-78. April 12, 2010 SUMMARY OPINION A. JOHNSON, VICE PRESIDING JUDGE: ¶1 Appellant Jack Aaron Logsdon was tried by jury and convicted and sentenced in the District Court of Logan County, Case No. CF2005-189, of sixteen counts of fraudulent sales of securities, forgery, obtaining money by false pretenses, and racketeering.1 The Honorable Donald L. Worthington, who presided at trial, ordered that each sentence be served consecutively for a total term of imprisonment of twenty-nine years. Additionally, the district court imposed jury-recommended fines of $3,000 on Counts 13 and 15, and $4,000 on Counts 1, 3, 4, 5, 6, 7, 8, 10, 12, 14 and 16. Further, the district court ordered restitution in the amount of $1,194,238.48. On appeal Logsdon raises the following issues: (1) whether the evidence was sufficient to support a conviction on Count 17 for racketeering; (2) whether the jury instructions on the counts alleging fraudulent sales of securities were defective for not defining the term “security” as requiring an investment of money in the risk capital of a business; (3) whether the trial court committed reversible error by allowing the jury to separate for the evening after they had retired for deliberations; (4) whether the trial court’s restitution order must be vacated because the statutory procedure for determining the amount of restitution was not followed and because the amount of the victims’ loss was not determined with reasonable certainty; (5) whether the evidence was sufficient to support conviction on Count 1 for the fraudulent sale of a security; (6) whether his convictions on Counts 9, 10, 11, and 12, for fraudulent sales of securities and second degree forgery, violate statutory prohibitions against multiple punish1014

ment or violate constitutional prohibitions against double jeopardy; (7) whether the evidence was sufficient to support the conviction in Count 13 for obtaining money or other valuable thing by false pretenses; (8) whether the trial court abused its discretion by running all his sentences consecutively; (9) whether his fifteen year sentence on Count 17 for racketeering should be modified because the jury was not instructed that he would be required to serve 50% of his sentence before becoming eligible for early release from confinement; (10) whether his conviction for racketeering in Count 17, which incorporated the crimes alleged in Counts 1 through 16, violates constitutional and statutory prohibitions against multiple punishment and double jeopardy; (11) whether the trial court committed reversible error by allowing inadmissible hearsay into evidence; (12) whether the prosecutor engaged in misconduct by raising the prohibited “societal alarm” argument during closing argument; (13) whether the trial court committed reversible error by allowing inadmissible evidence of other crimes into evidence; and (14) whether he was denied a fair trial by the cumulative effect of multiple errors and irregularities during trial. ¶2 We find reversal is not required and affirm the convictions and sentences on all counts except Count 17. We affirm the conviction on Count 17, but modify the sentence from a term of imprisonment of fifteen years to a term of imprisonment of ten years. ¶3 For the reasons set out below, we vacate the district court’s restitution order and remand for a re-determination of the restitution amount.

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BACKGROUND ¶4 Logsdon operated cattle and cattle investment businesses in Logan County. He also owned a travel enterprise that consisted of several different business entities, and dealt in real estate. The charging information alleged, and the State was required to prove at trial, that Logsdon: (1) engaged in fraudulent sales of securities by selling investment contracts for interests in cattle that did not exist and by selling investment contracts for ownership interests in his various travel enterprises that were already held by other investors; (2) forged two cattle sale option contracts; (3) obtained money by false pretenses by causing one investor to pay another investor for purchasing cattle, but in reality the investor was paying off part of Logsdon’s fraudulent debt to the other investor; and (4) engaged in racketeering by using the facilities of his existing cattle and travel business operations to conduct the alleged criminal activities. Because the crimes charged in this case involved multiple schemes, seventeen separate crimes, and at least a dozen victims, the relevant facts will be discussed as they pertain to each individual claim of error. DISCUSSION 1. Sufficiency of the Evidence Racketeering (Count 17) ¶5 The evidence was sufficient to support a conviction for racketeering in Count 17 because when the evidence is viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04 (quoting Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). Specifically, the evidence was sufficient to prove both the existence of an enterprise and Logsdon’s participation in its affairs through a connected pattern of racketeering activity. Miskovsky v. State, 2001 OK CR 26, ¶ 5, 31 P.3d 1054, 1059. Vol. 81 — No. 11 — 4/17/2010

2. Jury Instruction Fraudulent Sale of Security (Counts 1, 3, 4, 5, 6, 7, 8, 10, 12, 14, 16) ¶6 The district court’s jury instruction, which omitted a definition of the term “security” as a contribution to the risk capital of a venture, was proper. With one exception, the evidence showed that all the securities alleged to have been fraudulently sold were investment contracts, not contributions to the risk capital of a venture. Therefore, because the trial court defined the term “investment contract” in its instructions to the jury, and because the instruction tracked the statutory language, it correctly stated the applicable law and no instruction on contribution to risk capital was required.2 Cleary v. State, 1997 OK CR 35, ¶ 25, 942 P.2d 736, 745 (“Jury instructions are sufficient if, as a whole, they properly instruct the jury.”). There is no plain error here. Hogan v. State, 2006 OK CR 19, ¶¶ 39, 44, 139 P.3d 907, 923, 925, rehearing granted, 2006 OK CR 27, 139 P.3d 907, 952. 3. Jury Separation ¶7 Without objection by counsel, the trial court judge permitted jurors to go home for the evening while they were still deliberating despite the requirement of 22 O.S.2001, § 857 that jurors be kept together until they have agreed on a verdict. Prior to the jury’s separation for the evening, however, the judge admonished jurors not to discuss the case with anyone. Logsdon points to nothing in the record and offers no evidence suggesting that any juror discussed the case with anyone or was in any way subjected to any improper influence while at home for the evening. Allowing this jury to separate for the evening was not reversible error. See Day v. State, 1989 OK CR 83, ¶¶ 15-16, 784 P.2d 79, 84 (finding no prejudice to defendant for evening separation of jury where counsel did not object, judge admonished jury, and there was no evidence jurors did not follow admonishment); Elliot v. State, 1988 OK CR 81, ¶ 15, 753 P.2d 79, 84 (finding that when jury is allowed to separate in violation of section 857, and counsel for both sides are present, failure to object waives any potential error caused by separation). 4. Restitution ¶8 Logsdon claims that the trial court’s restitution order must be vacated because the statu-

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tory procedure for determining the amount of restitution was not followed and because the amount of the victims’ loss was not determined with reasonable certainty. The State argues that although it did not follow the procedure for prosecuting a restitution claim set out in 22 O.S.2001, § 991f(E)(1)-(4), there was sufficient evidence presented at trial to support the $1,194,238.48 restitution amount determined by the district court. This Court reviews the calculation of a restitution award for an abuse of discretion. Honeycutt v. State, 1992 OK CR 36, ¶ 28, 834 P.2d 993, 1000. ¶9 Title 22 O.S.2001, § 991a(A)(1)(a) provides that restitution may be ordered only to the extent that the damage to the victim is determined with “reasonable certainty.” A “reasonable certainty” must be more than an approximation, estimate, or guess. Honeycutt, 1992 OK CR 36, ¶ 31, 834 P.2d at 1000. Inherent in the definition of reasonable certainty is the requirement of proof of the loss to the victim. Id. Further, unless the record reflects a basis for the trial judge’s determination of a victim’s loss, the decision is arbitrary and violates section 991a. Id., ¶ 33, 1000. ¶10 Title 22 O.S.2001, § 991f(A)(1) provides that a crime victim may be compensated by “restitution” for up to three times the amount of economic loss suffered by the victim as a direct result of the criminal act of the defendant. “Economic loss” includes the actual financial detriment suffered by the victim and may include such things as medical expenses, damage to or loss of real or personal property, and loss of earnings reasonably incurred as a direct result of the defendant’s criminal act. 22 O.S.2001, § 991f(A)(3). Title 22 O.S.2001, 991f(E)(3) requires that the district attorney “shall” provide all crime victims with an “official” restitution request form which the victim must then submit along with all invoices, bills, receipts, and other evidence of injury, loss of earnings, and out-of pocket loss. Section 991f(F) requires that the crime victim “shall provide all documentation and evidence of compensation or reimbursement from insurance companies or agencies of this state, any other state, or the federal government received as a direct result of the crime for injury, loss of earnings or out-of-pocket loss” (emphasis added). The provisions of section 991f(E)(3) and (4) require that the victim’s restitution request form “shall be filed with any victim impact statement to be included in the judgment and sentence” and 1016

that “[t]he official restitution request form shall be presented in all cases regardless of whether the case is brought to trial” (emphasis added). Section 991f(E)(1) directs that “[t]he district attorney’s office shall present the crime victim’s restitution claim to the court at the time of the conviction or at the time of a plea. And finally, section 991f(D) states that: If restitution is to more than one person, agency or entity is set at the same time, the court shall establish the following priorities of payment: 1. The crime victim or victims; and 2. Any other government agency which has provided reimbursement to the victim as a result of the offender’s criminal conduct. (Emphasis added). ¶11 The State contends that it was not necessary to follow section 991f at sentencing because the amount of the victims’ loss had been proved at trial through testimony and through evidence such as checks, promissory notes and deposit slips that documented the victims’ payments to Logsdon. The problem with this argument is that while there is evidence in the trial record showing that some victims made payments to Logsdon, there is also evidence that some victims received payments from Logsdon. There is no record that the trial court considered any payments received by victims from Logsdon, or any other compensation that victims may have received from other sources, in determining the $1,194,238.48 restitution amount. Furthermore, the district court ordered restitution in the amount of $1,194,238.48, but despite the fact that the charging Information named at least thirteen victims,3 neither the Judgment nor its attachment identifies any specific victims as eligible for restitution, nor does either establish priorities for payment among them.4 Furthermore, there is no record of what the State actually presented to the district court as its claim for victim restitution. The transcript of the sentencing hearing shows that the prosecutor provided the court with a “calculation” of what he believed the victims’ losses to be (Sent. Tr. 5), and the State asserts that this “calculation” constituted the victims’ claim for restitution. The transcript is silent, however, about the specifics of the “calcula-

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tion,” and there is no written version of the “calculation” in the record.

and new proceedings conducted to determine a proper restitution amount.

¶12 Although nothing in section 991f indicates that its procedural requirements do not apply when some evidence of victim loss is presented at trial as the State asserts, even assuming this assertion is correct, the trial record in this case is not adequate to allow this Court to make a finding that the total restitution amount listed in the Judgment was correctly calculated to a “reasonable certainty.” The provisions of section 991f(A)(1),(3), and (C)(2) limit the economic loss subject to a restitution award to a victim’s “actual financial detriment,” up to three times the amount suffered as a “direct result of the criminal act of the defendant.”5 Merely totaling up payments made to Logsdon as the State proposes, without identifying which payments were being used, or accounting for anything that Logsdon may have returned to the victims, or for any compensation that victims may have received from other sources (e.g., insurance, civil judgments, etc.), does not produce the accurate measure of a victim’s “actual financial detriment” contemplated by 22 O.S.2001, § 991f(A)(3). Nor does it explain whether any excess amount of restitution was allowed. See 22 O.S.2001, § 991f(A)(1) and(C)(2).

5. Sufficiency of the Evidence Fraudulent Sale of Security (Count 1)

¶13 In short, this record shows only a grand total restitution amount. It does not identify the victims to whom restitution is owed, 22 O. S.2001, § 991a(A)(1)(a),(F), § 991f(D)(1); it does not show the basis for any individual claim, 22 O.S.2001, § 991f(E)(1),(E)(4) or (F), nor does it provide any indication of whether the restitution award reflects the victims’ “actual loss” by accounting for any compensation received by the victims from other sources, including restitution or compensation orders that may have been imposed in other criminal or civil proceedings, 22 O.S.2001, § 991f (A)(3), (C)(3)(e), (F).6 Because the record does not reflect a factual basis for the district court’s determination of the victims’ loss, nor even identify the victims to whom restitution is due, we cannot conclude that the restitution amount ordered by the district court was determined with reasonable certainty. We find, therefore, that the restitution ordered in this case was determined in an arbitrary manner and, as a result, was an abuse of discretion by the district court. Honeycutt, 1992 OK CR 36, ¶ 31, 39, 834 P.2d at 1000-1001. The district court’s restitution order must be vacated Vol. 81 — No. 11 — 4/17/2010

¶14 The evidence was sufficient to support a conviction for the fraudulent sale of a security in Count 1 because when the evidence is viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. In this instance, the evidence showed that Logsdon intentionally misled Gene Stephenson into purchasing an interest in a forty acre tract of land, which Logsdon promised would be put up for sale immediately and sold at a profit, by telling Stephenson that the property was vacant and would be sold quickly, while failing to disclose the material fact that he (Logsdon) intended to move into the house on the property and live there indefinitely. 6. Multiple Punishment & Double Jeopardy Forgery & Fraudulent Sale of a Security (Counts 9, 10, 11, 12) ¶15 Logsdon contends that his convictions on Counts 9, 10, 11, and 12 for second degree forgery and fraudulent sale of a security violate the statutory prohibition against multiple punishment and further violate constitutional prohibitions against double jeopardy. Logsdon did not raise these claims in the district court. They are therefore waived and reviewed only for plain error. Head v. State, 2006 OK CR 44, ¶ 9, 146 P.3d 1141, 1144. ¶16 In Count 9 Logsdon was convicted of forging the signature of Robert Donaldson to a cattle sale contract. In that contract Donaldson purportedly agreed to purchase 190 cattle from Logsdon for $100,082. In Count 10 Logsdon was convicted of fraudulently selling a onehalf interest in that contract to Gene Stephenson for $46,550. In Count 11 Logsdon was convicted of forging Donaldson’s signature to a second cattle contract. In that contract Donaldson purportedly agreed to purchase 160 cattle from Logsdon for $108,550. In Count 12 Logsdon was convicted of fraudulently selling a one-half interest in the second contract to Gene Stephenson for $47,200.

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¶17 Logsdon contends that his convictions on both Counts 9 and 10 (involving the sale of 190 head of cattle) and on both Counts 11 and 12 (involving the sale of 160 head of cattle) violate the statutory prohibition against multiple punishment of 21 O.S.2001, § 11. Logsdon asserts that the forging of Donaldson’s signatures to the cattle sale options contracts was part of the act of fraudulently selling interests in those contracts to Gene Stephenson. According to Logsdon, these four convictions violate section 11 because each pair of convictions constitutes two convictions for a single course of conduct. In other words, Logsdon claims that the forgeries of the cattle option contracts in Counts 9 and 11 were merely the means to achieving the ultimate objective of committing the primary offense of fraudulently inducing Stephenson to purchase a security, as alleged in Counts 10 and 12. In Davis v. State, 1999 OK CR 48, ¶¶ 9-13, 993 P.2d 124, 126-27, this Court specifically rejected the “ultimate objective” or “primary offense” test, in favor of a test that focuses on the relationship between the crimes, in order to determine whether the crimes truly arose out of a single act. Where there is a series of separate and distinct crimes, as in this case, Section 11 is not violated. Id., ¶ 12, 126. ¶18 In this instance the acts of forgery and the acts of fraudulently selling an investment contract occurred at two different times (albeit on the same day), and each involved different victims. The forgery crimes were completed when Logsdon signed Donaldson’s name to the cattle sale contracts. The fact that Logsdon later used those forged contracts to induce Stephenson to purchase an interest in a venture involving each of the two non-existent herds of cattle does not cause the acts of forgery to merge into the subsequent acts of fraudulently selling a security. The crime of forgery does not depend on whether the forged document is later used to induce a fraudulent sale of an interest in the subject of the forged instrument. Because the crimes of forgery and fraudulently selling securities were separate and distinct acts, and because each crime involved separate victims, Logsdon’s convictions for these crimes do not violate section 11. There is no plain error. ¶19 Having determined that section 11 does not apply in this case, we turn now to Logsdon’s constitutional double jeopardy claims. See Mooney v. State, 1999 OK CR 34, ¶ 14, 990 P.2d 875, 882-83 (holding that because section 1018

11 complements double jeopardy protections of Oklahoma and United States Constitutions, traditional double jeopardy analysis is conducted only if section 11 does not apply). This Court applies the test set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), to evaluate constitutional claims of double jeopardy. Watts v. State, 2008 OK CR 27, ¶ 16, 194 P.3d 133, 139. Under the Blockburger test, this Court asks whether each offense requires proof of an additional fact that the other does not. Watts, 2008 OK CR 27, ¶ 16, 194 P.3d at 139-40. Here, the crimes of forgery and fraudulent sales of securities have no elements in common. Thus they both require proof of entirely different facts, not just proof of one fact that the other does not. There is no constitutional double jeopardy violation. There is no plain error. 7. Sufficiency of the Evidence Obtaining a Valuable Thing by False Pretenses (Count 13) ¶20 The evidence was sufficient to support a conviction for obtaining money or other valuable thing by false pretenses. Spuehler, 1985 OK CR 132, ¶ 7, 709 P.2d at 203-04. Title 21 O.S.2001, § 1541.1 applies not just to property whose ownership may be evidenced by documents of title, but also to intangible things with determinable value. Cf. Stokes v. State, 1961 OK CR 76, ¶ 20, 366 P.2d 425, 431. ¶21 In this case the evidence showed that at the time Logsdon induced Donaldson to pay Stephenson $55,500 for 110 head of non-existent cattle, Logsdon was indebted to Stephenson for amounts Stephenson earlier gave him to buy into their joint real estate venture and two separate cattle ventures. Donaldson’s fraudulently induced payment to Stephenson constituted a valuable thing to Logsdon because the payment was used as a partial repayment of Logsdon’s debt to Stephenson. Certainly, money given from one party to another in order to satisfy the debt of a third party is a “valuable thing” to the third party, even though the third party, as the beneficiary of the transaction, never takes physical possession or title to the funds. Because Donaldson’s payment to Stephenson on Logsdon’s behalf was a “valuable thing,” as contemplated by section 1541.1, the evidence of the payment was sufficient to support conviction on this count.

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8. Consecutive Sentences ¶22 The district court did not abuse its discretion by ordering Logsdon’s sentences to run consecutively. See Riley v. State, 1997 OK CR 51, ¶ 20, 947 P.2d 530, 534; 22 O.S.2001, § 976. 9. Sentencing Racketeering (Count 17) ¶23 Logsdon claims that his fifteen-year sentence on Count 17 for racketeering should be modified because the jury was not instructed that he would be required to serve 50% of his sentence before becoming eligible for early release. Logsdon did not request an instruction on this point, nor did he object to its absence. We therefore review for plain error. Watts v. State, 2008 OK CR 27, ¶ 9, 194 P.3d 133, 136-37. ¶24 Title 22 O.S.2001, § 1404(A) provides that any person convicted of racketeering under section 1403: shall be punished by a term of imprisonment of not less than ten (10) years and shall not be eligible for a deferred sentence, probation, suspension, work furlough, or release from confinement on any other basis until the person has served one-half (1/2) of his or her sentence (emphasis added). Logsdon relies on Anderson v. State, 2006 OK CR 6, 130 P.3d 273, to argue that his jury should have been instructed that he would have to serve at least 50% of whatever sentence was imposed on his racketeering conviction before becoming eligible for any type of release from confinement (e.g., parole). In Anderson, this Court held that when a defendant is sentenced under 21 O.S. § 13.1 and its 85% limit on parole eligibility for any of its enumerated crimes, the jury should be instructed that the defendant would be required to serve 85% of any sentence before becoming eligible for parole. Id., ¶ 25, 283. Key to our holding in Anderson was the reasoning that instructing juries on parole eligibility would avoid unfair prejudice to defendants resulting from jurors increasing sentences based on uninformed guesses about parole. Id., ¶ 23, 282. ¶25 Anderson’s rationale logically applies in this situation. To ensure that Logsdon’s jury did not increase his sentence based on an uninVol. 81 — No. 11 — 4/17/2010

formed guess about when he might be released on parole (a form of early release from confinement), the district court should have instructed the jury that in this instance Logsdon would have to serve at least 50% of his sentence before becoming eligible for release from confinement on parole. The district court erred by not instructing the jury on the 50% early-release limitation. ¶26 Nevertheless, under plain error review, reversal is not warranted unless the error affected Logsdon’s substantial rights, meaning the error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. That is, reversal is not warranted if this Court has no grave doubt that the error had a substantial influence on the outcome. Simpson v. State, 1994 OK CR 40, ¶ 37, 876 P.2d 690, 702. In other words, reversal is not warranted for plain error if the error was harmless. Id., ¶¶ 19-20, 698. ¶27 In this instance the jury imposed a sentence of fifteen years on Count 17. The minimum sentence for this offense was ten years. 22 O.S.2001, § 1404(A). Because the jury imposed a sentence 50% higher than the statutory minimum, and because it is impossible to determine from the bare verdict just what rationale the jury employed to arrive at its decision, it is not possible to rule out the possibility that the jury made its sentencing decision based on a guess as to when Logsdon might become eligible for parole. It is not possible, therefore, to conclude that the error was harmless. The lack of an instruction informing the jury that Logsdon would be required to serve 50% of the prison time imposed was plain error. For that reason we modify the sentence on Count 17 to a term of imprisonment of ten years. 10. Multiple Punishment & Double Jeopardy Racketeering (Count 17) and Predicate Offenses (Counts 1 through 16) ¶28 Logsdon claims that his conviction for racketeering in Count 17 violates the statutory prohibition against multiple punishment at 21 O.S.2001, § 11, and the United States and Oklahoma constitutional prohibitions against double jeopardy. The crux of Logsdon’s claim is that the racketeering count incorporated the offenses alleged in Counts 1 through 16 and, therefore, the conviction on the racketeering count constituted re-conviction and multiple punishment

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on the incorporated counts. Because Logsdon did not raise this claim in the trial court, it is reviewed only for plain error. Head v. State, 2006 OK CR 44, ¶ 9, 146 P.3d 1141, 1144. ¶29 In Watts, 2008 OK CR 27, ¶ 16, 194 P.3d at 139, this Court held that if multiple crimes arise from one act, 21 O.S.2001, § 11 prohibits punishment for more than one crime, “absent specific legislative intent.” In this instance, the Legislature explicitly expressed its intent that the predicate acts charged in a racketeering count may also be prosecuted separately. The racketeering statute, 22 O.S.2001, § 1408, states: Criminal penalties and fines pursuant to the Oklahoma Corrupt Organizations Prevention Act are supplemental and not mutually exclusive, except when so designated, and shall not preclude the application of any other criminal or civil remedy pursuant to any other provision of the law. Relying on this statutory provision, this Court held in Carter v. State, 1996 OK CR 34, ¶ 14, 922 P.2d 634, 638, that the Oklahoma Corrupt Organizations Prevention Act defines criminal racketeering by listing specific offenses that can serve as predicate crimes for the racketeering offense and that “[c]learly, these offenses constitute ‘conduct’ which can both be a foundation for the [racketeering] charge and be chargeable on their own merit” (emphasis added). In section 1408 the Legislature expressly declared its intent that predicate crimes charged in a racketeering prosecution also be subject to prosecution as individual crimes. These convictions for racketeering and the predicate offenses underlying the racketeering charge do not result in impermissible multiple punishment in violation of 21 O.S.2001, § 11.

L.Ed. at 309 (1932), to evaluate constitutional claims of double jeopardy. Watts, 2008 OK CR 27, ¶ 16, 194 P.3d at 136. Under the Blockburger test, this Court asks whether each offense requires proof of an additional fact that the other does not. Id. ¶32 Count 17 charged Logsdon with racketeering. To obtain a conviction for racketeering, the State must prove, among other things, that the defendant “participated in, directly or indirectly, the affairs of the enterprise through a pattern of racketeering activity.” 22 O.S.2001, § 1403. Count 1 and Counts 3 through 16 charged multiple counts of fraudulent sales of securities, second-degree forgery, and obtaining money by false pretenses. None of these crimes required proof of a pattern of racketeering activity. Because Count 17 required proof of an element not required by any other count, Logsdon’s convictions do not violate either the Sixth Amendment to the United States Constitution or Article II, § 21 of the Oklahoma Constitution. 11. Evidence: Hearsay ¶33 Logsdon claims the trial court allowed inadmissible hearsay into evidence when it permitted Gene Stephenson to testify that the private investigator he hired did not find any cattle belonging to him or Logsdon. Logsdon specifically challenges the following testimony: Q. What were your instructions to him? A. To find any cattle that were ours or Jack Logsdon’s at these sites. Q. Okay. A. And see if they were there, in fact, physically.

¶30 Logsdon also claims that his conviction on Count 17 (for racketeering), along with Count 1 (fraudulent sale of security) and Counts 3 through 16 (fraudulent sales of securities, second-degree forgery, and obtaining money by false pretenses) violate the double jeopardy provisions of the Sixth Amendment to the United States Constitution and Article II, § 21 of the Oklahoma Constitution.7 Logsdon did not raise this objection in the trial court. The claim is reviewed, therefore, only for plain error. Head, 2006 OK CR 44, ¶ 9, 146 P.3d at 1144.

(Tr. Vol. 5, 107-08).

¶31 As already noted, this Court utilizes the test set out by the United States Supreme Court in Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76

¶34 Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove

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Q. What were the results that were reported back to you? MR. MARTIN: Which would be hearsay, Your Honor. THE COURT: No. He may tell what he was told in answer to that question. Q. (By Mr. Rogers) What was the result? A. That there were no cattle. None.

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the truth of the matter asserted.” 12 O.S.Supp.2002, § 2801(A)(3). The State contends that the statement attributed by Stephenson to his private detective was not hearsay because it was not offered to prove the truth of any matter, but was instead offered to show one of the steps he (Stephenson) took to locate the cattle Logsdon had supposedly sold to him. ¶35 The question eliciting the challenged response was asked in the context of several questions about what Stephenson did to locate the cattle. Stephenson testified that he gave the investigator the supposed locations for the cattle and paid him $7,800 to search for the cattle. This testimony clearly established that one of the steps Stephenson took to locate the cattle was to hire a private investigator. Contrary to the State’s assertion, however, it appears from the context of Stephenson’s testimony that the question about the result of the investigator’s work was unnecessary to show what steps Stephenson took to locate the cattle, but was intended instead to provide some evidence of the truth of the matter asserted (i.e., there were no cattle). As a statement offered as proof of the matter asserted, the statement attributed to the private investigator by Stephenson was hearsay. ¶36 Anticipating this finding, the State argues that the error, if any, was nevertheless harmless beyond a reasonable doubt. Indeed, as the State notes, this Court has held that the improper admission of hearsay evidence is subject to harmless error analysis. See Frederick v. State, 2001 OK CR 34, ¶ 102, 12 P.3d 908, 936 (finding that improper admission of hearsay was harmless based on other evidence of defendant’s guilt). Cf. Humphreys v. State, 1997 OK CR 59, ¶ 23, 947 P.2d 565, 574 (finding reversal not warranted for Confrontation Clause violation because error did not contribute to verdict and was therefore harmless). ¶37 In this instance, as the State points out, even if the offending testimony had not been admitted, the other evidence concerning the non-existent cattle was strong. Specifically, Stephenson testified that despite his attempts to get Logsdon to sell the cattle, Logsdon always made excuses why they could not be sold, including one instance in which Logsdon told Stephenson that his wife was divorcing him, that the cattle were involved in the litigation, and her lawyer was requesting “a hold on everything” (Tr. Vol. 5, 109). Additionally, OSBI Vol. 81 — No. 11 — 4/17/2010

Agent Tommy Johnson testified that (1) he found nothing in Logsdon’s bank accounts showing that he purchased any cattle for Stephenson; (2) Logsdon’s tax returns did not show that he spent any money on the care or upkeep of the supposed cattle owned by Stephenson; and (3) the number of cattle set out in the purported bills of sale did not match the number of cattle Stephenson believed he was purchasing. Furthermore, neither Logsdon’s individual tax returns nor the tax returns filed on behalf of his companies indicated that he was buying, selling, or caring for cattle in the numbers he was representing to his victims, including Stephenson. In light of this strong evidence supporting the fact that the cattle were non-existent, the hearsay evidence error was harmless beyond a reasonable doubt. See Dodd v. State, 2004 OK CR 31, ¶ 49, 100 P.3d 1017, 1034 (finding erroneous admission of hearsay evidence harmless in face of strong evidence of guilt); Frederick, 2001 OK CR 34, ¶ 102, 12 P.3d at 936 (same); cf. Humphreys, 1997 OK CR 59, ¶ 23, 947 P.2d at 574 (finding Confrontation Clause error harmless beyond reasonable doubt because error did not contribute to verdict). 12. Prosecutorial Misconduct ¶38 The prosecutor’s closing argument did not raise the prohibited societal alarm argument. The prosecutor did not talk about deterring other persons who may commit crime, nor did he talk about the crime rate or urge the jury to make an example out of Logsdon. Rather, the prosecutor spoke only about Logsdon’s crimes having attacked society and that the jury, acting on behalf of society, would have to determine the proper punishment. The prosecutor’s argument was within the proper limits of reasonable argumentation. McElmurry v. State, 2002 OK CR 40, ¶ 151, 60 P.3d 4, 34. 13. Evidence: Other Crimes ¶39 Logsdon claims that the prosecutor was allowed to elicit improper testimony about two unrelated fraudulent business transactions. According to Logsdon, the testimony about these two transactions constituted evidence of other crimes that is inadmissible under Burks v. State, 1979 OK CR 10, 594 P.2d 771. ¶40 In support of this claim, Logsdon’s brief points to several pages in the trial transcript. The cited pages contain testimony about a cat-

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tle transaction and portions of the prosecutor’s closing argument urging the jury to return fiveyear sentences on the non-racketeering counts and the maximum sentence on the racketeering count. None of the pages cited contain any reference to a real property transaction. The State’s brief-in-chief called attention to this fact, but Logsdon neither moved to supplement his brief-in-chief with relevant citations to the record nor addressed the matter in his reply brief. ¶41 Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), requires that a party’s brief cite to the portion of the record in which the alleged error is located and states that failure to do so “constitutes waiver of the alleged error.” The trial transcript in this case consists of 1,329 pages in nine volumes. The testimony Logsdon complains about is not recorded on any of the pages he cites. The claim is waived for failure to cite the applicable portion of the record containing the alleged error. See Armstrong v. State, 1991 OK CR 34, ¶ 24, 811 P.2d 593, 599 (“We are unable to address one of the appellant’s allegations of prosecutorial misconduct for his citation to the transcript contains no improper hearsay testimony, as he alleges, only his argument for a mistrial. We will not search the record to find the errors an appellant attempts to raise”); see also Stouffer v. State, 2006 OK CR 46, ¶ 126, 147 P.3d 245, 271 (“[t]his Court will not search the record to support the appellant’s unsupported assignments of error”); Phillips v. State, 1999 OK CR 38, ¶ 65, n.6, 989 P.2d 1017, 1036, n.6 (same). 14. Cumulative Error ¶42 Logsdon’s cumulative error argument is without merit. Although we have found errors in his case, when considered in the aggregate, the errors do not require relief because they neither rendered his trial fundamentally unfair, tainted the jury’s verdict, nor rendered sentencing unreliable. Any errors were harmless beyond a reasonable doubt, individually and cumulatively. See Hogan v. State, 2006 OK CR 19, ¶ 98, 139 P.3d 907, 937 (holding that where numerous irregularities occurring during course of trial tend to prejudice rights of defendant, reversal is required only if cumulative effect of all errors was to render trial fundamentally unfair, taint jury’s verdict, or render sentencing unreliable). 1022

DECISION ¶43 The Judgment of the District Court is AFFIRMED. The Sentence on Count 17 (Racketeering) is MODIFIED to ten years. The sentences on the remaining counts are AFFIRMED. The District Court’s restitution order is VACATED, and the case is REMANDED on the issue of the victims’ loss, for a proper determination in accordance with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF LOGAN COUNTY THE HONORABLE DONALD L. WORTHINGTON, DISTRICT JUDGE APPEARANCES AT TRIAL Mack Martin, Martin Law Office, 125 Park Avenue, Fifth Floor, Oklahoma City, OK 73102, Attorney for Defendant. Charles Rogers, Assistant Attorney General, 313 N.E. 21st Street, Oklahoma City, OK 73105, Attorney for State. APPEARANCES ON APPEAL Thomas Purcell, Deputy Appellate Defense Counsel, Oklahoma Indigent Defense System, P.O. Box 926, Norman, OK 73070, Attorney for Appellant. W.A. Drew Edmondson, Oklahoma Attorney General, Keeley Harris, Assistant Attorney General 313 N.E. 21st Street, Oklahoma City, OK 73105, Attorneys for Appellee. OPINION BY: A. JOHNSON, V.P.J. C. JOHNSON, P.J.: Concur LUMPKIN, J.: Concur in Results LEWIS, J.: Concur 1. The counts of conviction and sentences are as follows: Count Offense Statute Sentence 1 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 3 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 4 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 5 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 6 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 7 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 8 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 9 Forgery in the Second Degree 21 O.S. § 1585 6 months 10 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 11 Forgery in the Second Degree 21 O.S. § 1585 6 months 12 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 13 Obtaining Money by False Pretenses 21 O.S. §§ 1541.1-1541.2 1 year 14 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 15 Obtaining Money by False Pretenses 21 O.S. §§ 1541.1-1541.2 1 year 16 Fraudulent Sale of a Security 71 O.S. §§ 101, 407 1 year 17 Racketeering 22 O.S. § 1403(A) 15 years Logsdon was found not guilty of Fraudulent Sale of a Security in Count 2.

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2. Count 7 did not allege the sale of an investment contract, but instead alleged the fraudulent sale of a “note or evidence of indebtedness.” The judge did not define the terms “note” or “evidence of indebtedness.” Nevertheless, a definitional instruction was unnecessary for these terms, because the terms “note” and “evidence of indebtedness” are not specialized terms and could be easily understood by jurors particularly where the evidence showed that the item at issue was a promissory note, an item with which most jurors likely have some experience. See Oxley v. State, 1997 OK CR 32, ¶ 10, 941 P.2d 520, 523, (“[T]erms used in instructions should be defined by the court where they have a technical meaning, or may be misapplied by the jury; but where the terms are in common use and are such as can be understood by a person of ordinary intelligence they need not be defined or explained in the absence of anything in the charge to obscure their meaning.”). Because this count did not allege a money contribution to the risk capital of a venture, but instead alleged the sale of a type of security that was familiar to jurors, no special instruction was necessary. 3. In its various counts, the charging Information lists the following victims of Logsdon’s multiple overlapping schemes: Gene Stephenson, Fred Moulder, John Macy, Carolyn Macy, Terry White, Robert Donaldson, Joy Donaldson, Charles Crooks, Angie Crooks, Jon Gumerson, James Clark, Gene Stephenson Shocker Baseball Camps, Inc., and First Capital Bank (O.R. 108-119). Not all these victims testified at trial. 4. Attachment A to the Judgment purports to state a “Schedule of Reimbursement” of court costs, fines, fees, and restitution, but while the costs, fines, and fees are listed, the restitution section is blank (O.R. 707). 5. Although section 991f(A)(1),(3), and(C)(2) permit a restitution award of up to three times the victim’s economic loss (i.e., actual financial detriment), the economic loss used as the baseline for the treble award must still be determined with reasonable certainty. 6. For example, trial testimony by a bank officer showed that a loan used by victim Robert Donaldson to buy into one of Logsdon’s schemes was written off by the lending bank as uncollectable. Additionally, trial testimony by another bank officer and victim, John Macy, showed that Macy sued the bank that loaned him the money to buy into one of Logsdon’s schemes and, that the bank and Macy settled the suit for an undisclosed amount. 7. Logsdon argues that his double jeopardy rights, as set out in Article II, §§ 7 and 20 of the Oklahoma Constitution, were violated by his multiple convictions (Aplt’s Brief at 41). Sections 7 and 20 of the Oklahoma Constitution do not pertain to double jeopardy. The double jeopardy provisions of the Oklahoma Constitution are found at Article II, § 21, which states: No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically

provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense. Logsdon’s references to Article II, §§ 7 and 20 appear to be a scrivener’s error. For purposes of this analysis, we assume that he meant to cite Article II, § 21 as the basis of his double jeopardy claim.

LUMPKIN, JUDGE: CONCUR IN RESULTS ¶1 Except for the modification of the sentence on Count 17, I agree with the results reached by the Court in this case and the Court’s interpretation of the provisions of 22 O.S.2001, § 991f. ¶2 As to the issue of failure of the trial court to adequately instruct the jury that Count 17, Racketeering, required a person convicted of the crime to serve at least 50% of the sentence prior to being eligible for parole, I agree error occurred. However, I cannot find prejudice resulted from that error. The record is void of a question by the jury, as in Carter v. State, 2006 OK CR 42, ¶ 5, 147 P.3d 243, 244, that required a modification of the sentence, i.e., “the error [did not] result in a miscarriage of justice or constitute a substantial violation of a constitutional right.” Id. The sentence was merely 5 years more than the minimum sentence. On the face of the sentence, it is clear it was based on a rational basis rather than an emotional response. Therefore, I cannot agree with the rationale set out for modification of the sentence, and I would find the error harmless.

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FAMILY LAW ISSUES Tuesday, May 4, 2010 Greenwood Cultural Center 322 N. Greenwood Avenue, East Hall Approved for 7 Hours MCLE Credit FREE for Lawyers Actively Serving on the Legal Aid Pro Bono Panel AGENDA 8:30 a.m.

Registration

9:00 - 9:50 a.m.

Bankruptcy Law for Family Law Attorneys by Sidney Swinson, Attorney

9:50 - 10:05 a.m.

BREAK

10:05 - 10:55 a.m.

Track A (Basic) Nuts and Bolts of a Dissolution Case 1: Pleadings, Domestic Violence, and Court Proceedings by Julie Goree, Attorney, Legal Aid Services of Oklahoma OR Track B (Advanced) Discovery and Entry of Evidence by Melissa Cornell, Attorney

10:55 - 11:10 a.m.

BREAK

11:10 - 12:00 noon

Track A (Basic) Nuts and Bolts of a Dissolution Case 2: by Julie Goree, Attorney, Legal Aid Services of Oklahoma OR Track B (Advanced) Jurisdiction: Refresher and New Directions by Marianne Blair, Professor, University of Tulsa College of Law

12:00 - 1:15 p.m.

LUNCH (On your Own)

1:15 - 2:05 p.m.

Players in the High-Conflict Divorce by Carol Swenson, Guardian Ad Litem, Nicole Kirkland, Tulsa County District Court High Conflict Coordinator, and Tulsa County Public Defender’s Civil Division

2:05 - 2:55 p.m.

Topics on Elder Law by Robert Farris, Attorney

2:55 - 3:15 p.m.

BREAK

3:15 - 4:05 p.m.

Interviewing, Counseling, and Negotiating by J. Kenton Francy, Attorney

4:05 - 5:00 p.m.

Courtroom Decorum: A View from the Bench, moderated by Kathryn Herwig, presented by the Honorable Theresa Dreiling, Tulsa County District Court, the Honorable Carl Funderburk, Tulsa County District Court, and the Honorable Jane Wiseman, Oklahoma Court of Civil Appeals

To reduce our costs, we are no longer printing materials. The materials will be available on our pro bono support website. A link is posted on www.probono.net/ok or at go to this www.probono.net/link.cfm?14557 Information about accessing the website is emailed to you when you register online! ------------------------------------------------------------------------------------------------------------------------------------Register by Mail or Fax: Please register me; I am an active member of the Legal Aid Pro Bono Panel in my area Sign me up as a Volunteer and register me for the seminar Karen Langdon, Legal Aid Services of Oklahoma, Inc., 907 South Detroit, Suite 907, Tulsa, OK 74120, Fax: (918) 584-3060 Name _____________________________________________________ OBA No. _____________________ Phone ( ) _________________________________ Email ___________________________________________ Address _________________________________________________________________________________________ Street City Zip County Questions? Karen Langdon, Pro Bono Coordinator (918) 295-9422 or karen.langdon@laok.org

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Court of Civil Appeals Opinions 2010 OK CIV APP 26 ASSET ACCEPTANCE, LLC, Plaintiff/ Appellant, vs. JENA M. SMITH, Defendant/ Appellee. Case No. 106,957. February 12, 2010 APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY, OKLAHOMA HONORABLE JOE B. REEVES, TRIAL JUDGE REVERSED William L. Nixon Jr., LOVE, BEAL & NIXON, P.C., Oklahoma City, Oklahoma, for Plaintiff/ Appellant, John C. Cramer, CRAMER LAW FIRM, Lawton, Oklahoma, for Defendant/Appellee. Wm. C. Hetherington, Jr., Judge: ¶1 Asset Acceptance (“Asset”) appeals the trial court order granting Appellee Jena M. Smith’s (“Smith”) request for prevailing party attorney fees. We find attorney fees are not recoverable here and reverse the decision. ¶2 Asset is a collection agency and assignee of Washington Mutual Bank, the Visa credit card issuing bank. The attorney fee award came from a petition filed by Asset to collect indebtedness on a credit card. Smith filed a pro se answer raising the affirmative defense that the debt had been satisfied by a lump sum settlement and payment of $4,000.00 to the original creditor, Visa. ¶3 According to the parties, Asset presented a motion for summary judgment when Smith failed to respond to requests for admissions. On March 20, 2008, the trial court denied Asset’s motion based on its failure to sign the discovery requests, setting hearing, and ordering Smith to respond by April 25, 2008. Counsel for Smith entered an appearance, timely responded to Asset’s discovery, and requested leave to file an amended answer out of time. The request was granted, and she filed her amended answer May 23, 2008. ¶4 On July 11, 2008, Asset dismissed its petition. Smith thereafter filed her motion for attorneys fees and an amendment to the motion. Hearing was held on November 20, 2008. The 1026

parties stipulated to the amount of $1,409.00, briefed the issue, and the order below, out of which this appeal arises, was granted January 15, 2009. THE STANDARD OF REVIEW ¶5 Review of this order is review de novo of a legal question. See Volvo Commercial Financial LLC the Americas v. McClellan, 2003 OK CIV APP 27, ¶13, 69 P.3d 274, 278; Elmore v. Doenges Brothers Ford, Inc., 2001 OK CIV APP 27, ¶6, 21 P.3d 65, 69. Under this standard, we claim plenary, independent and non-deferential authority to re-examine the trial court’s legal rulings. Kluver v. Weatherford Hospital Authority, 1993 OK 85, ¶14, 859 P.2d 1081, 1084. THE APPEAL ¶6 Smith relies on Professional Credit Collections, Inc. v. Smith, 1997 OK 19, 933 P.2d 307, for her “prevailing party” attorney fee request pursuant to 12 O.S.Supp.2002 § 936, which allows a prevailing party to recover attorney fees as costs in actions on various types of accounts, bills, and contracts. Professional Credit Collections stands for the proposition that a defendant must be able to show that he or she received affirmative relief in order to receive attorney fees as a “prevailing party” when a lawsuit is voluntarily dismissed by the plaintiff. The mere fact a plaintiff dismisses its suit does not, per se, make the defendant a “prevailing party.” Underwriters at Lloyd’s of London v. North American Van Lines, 1992 OK 48, ¶5, 829 P.2d 978, 979-980. This is true even when the defendant’s answer contains a prayer that a plaintiff’s petition be denied or a specific request for attorney fees. Swan-Sigler Inc. v. Black, 1966 OK 90, ¶5, 414 P.2d 300, 301. A plaintiff may not, via a later dismissal, “wipe the slate clean of prior orders in the case which bear directly on its counsel-fee liability.” Professional Credit Collections, 1997 OK 19, ¶12, 933 P.2d at 311. (Emphasis added.) ¶7 Here, Asset ultimately dismissed its case without prejudice to refiling, as provided for in 12 O.S.Supp.2004 § 684. Hastings v. Kelley, 2008 OK CIV APP 36, ¶8, 181 P.3d 750, 752. We find Smith’s argument — that the debt had been previously satisfied by compromise settlement on November 28, 2005, and she had asked for

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costs and attorney fees — presents no factual affirmative relief. We are constrained from reaching any other conclusion by stare decisis and the prevailing party rule as it currently exists. Had the motion for summary judgment been sustained (and the discovery requests signed by Asset), counsel retained, and summary adjudication vacated, this result might be different under Professional Credit Collections. The judgment awarding Smith attorney fees is REVERSED. BUETTNER, P.J., and HANSEN, J., concur. 2010 OK CIV APP 27 JULIE ANN MORRIS, Plaintiff/Appellant, vs. CITY OF OKLAHOMA CITY, CITY AIRPORT TRUST, ATLANTIC COAST AIRLINES, and UNITED AIRLINES, INC., Defendants/Appellees. Case No, 107,368. February 9, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE DANIEL L. OWENS, TRIAL JUDGE AFFIRMED Jason B. Reynolds, Billy D. Griffin, GRIFFIN, REYNOLDS & ASSOCIATES, Oklahoma City, Oklahoma, for Plaintiff/Appellant, Bradley K. Donnell, Rodney K. Hunsinger, MCAFFEE & TAFT, A Professional Corporation, Oklahoma City, Oklahoma, for Defendants/Appellees. DOUG GABBARD II, PRESIDING JUDGE: ¶1 Plaintiff, Julie Ann Morris, appeals the trial court’s dismissal with prejudice of her negligence action against Defendants City of Oklahoma City, City Airport Trust, Atlantic Coast Airlines (Atlantic), and United Airlines, Inc. (United). We affirm. FACTS ¶2 In November 2005, Plaintiff filed a negligence suit against Defendants. Her petition alleged that, in August 2003, she was a passenger on an Atlantic flight from Will Rogers World Airport in Oklahoma City, Oklahoma, to Dallas, Texas; that Defendants forced her and other passengers to stay on the plane for several hours without air conditioning while the plane was delayed on the airport tarmac; and, when Plaintiff was finally allowed to exit the Vol. 81 — No. 11 — 4/17/2010

plane, she lost consciousness from a heat stroke, fell, and sustained serious injuries. Plaintiff alleged that, at the time of the incident, Will Rogers World Airport was owned and operated by Defendants City of Oklahoma City and/ or City Airport Trust, and that Defendant Atlantic was operating on behalf of United. ¶3 Plaintiff never served summons on Defendants. On September 26, 2008, almost three years later, the trial court dismissed the action without prejudice to refiling, for failure to prosecute. ¶4 On October 1, 2008, Plaintiff refiled her lawsuit. The 2008 petition makes identical allegations as the 2005 lawsuit, and notes that it is being re-filed “pursuant to 12 O.S. 2001 § 100,” the savings statute.1 Once again, Plaintiff never served summons on any of Defendants. However, on March 25, 2009, she served summons on counsel for Defendants Atlantic and United. ¶5 On April 6, 2009, Atlantic and United filed a “Limited Entry of Appearance, Motion to Transfer to Judge Daniel L. Owens, and Motion to Dismiss for Failure to Serve and Diligently Prosecute,” requesting that the case be assigned to Judge Owens, the judge who had dismissed the earlier case.2 They requested that the refiled lawsuit be dismissed pursuant to 12 O.S. Supp. 2008 § 2004(I)3 for failure to serve summons within 180 days of filing, and pursuant to District Court Rule 9 for failure to diligently prosecute. Regarding the latter ground, Defendants asserted that Plaintiff had totally failed to prosecute both her original action and her refiled action. They asserted Plaintiff had made no attempt to serve Defendants with her 2005 petition between August 2005 and November 7, 2005, the date that Atlantic sought bankruptcy protection; that Atlantic was discharged from bankruptcy on December 27, 2006; and that Plaintiff subsequently failed to attempt service upon Defendants between that date and September 26, 2008, when the trial court dismissed the original action. They also alleged that Plaintiff had again failed to serve Defendants with process since refiling her action on October 1, 2008. ¶6 Plaintiff did not disagree with most of the facts asserted by Defendants. However, she alleged that she served summons on counsel for Atlantic and United only after such counsel agreed to accept service. Plaintiff’s attorney attached an affidavit from his legal assistant,

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wherein she stated that she “spoke with an assistant in Bradley Donnell’s office regarding service” and: 4. I was advised by the assistant that McAfee & Taft would agree to accept service of the summons and petition on behalf of Atlantic Coast Airlines and United Airlines, Inc., in the above referenced matter. Again, I do not recall the name of the person with whom I spoke. ¶7 Atlantic and United’s attorneys replied that they had never agreed to accept service on behalf of their clients. They also attached affidavits from attorney Donnell’s secretary and paralegal wherein they stated that they had never had any communications with Plaintiff’s attorney’s office, had never agreed to accept service for Atlantic and United, and had no authority to do so. Atlantic and United asserted that Plaintiff’s purported service was ineffective and not in compliance with § 2004. ¶8 On June 29, 2009, after conducting an evidentiary hearing, the trial court quashed the purported service, denied Plaintiff additional time to serve any of Defendants, and granted a dismissal with prejudice of the entire action. Plaintiff appeals. STANDARD OF REVIEW ¶9 A court’s power to dismiss for failure to comply with a procedural rule or for failure to prosecute has long been recognized. Link v. Wabash R.R. Co., 370 U.S. 626, 82 S. Ct. 1386 (1962); 24 Am. Jur. 2d Dismissal §§57, 61 & 64 (2008). It is an inherent power of the court which has its roots in judgments of nonsuit and non prosequitur at common law, and dismissals for want of prosecution of bills of equity. 370 U.S. at 630, 82 S. Ct. at 1388. Because the grant or denial of a motion to dismiss for failure to comply with a procedural rule or for failure to prosecute involves the exercise of judicial discretion, this Court will affirm same unless there is an abuse of discretion. See 24 Am. Jur. 2d Dismissal § 59 (2008); Meeker v. Rizley, 324 F.2d 269 (10th Cir. 1963). ANALYSIS ¶10 The trial court did not state its specific reason for granting dismissal. However, Defendants sought dismissal on two grounds: first, that Plaintiff had failed to serve summons within 180 days as required by § 2004; and second, that Plaintiff had failed to diligently pros1028

ecute her action as required by District Court Rule 9, 12 O.S.2001 ch. 2, app. Regarding Defendants’ first ground for dismissal, § 2004(I) states: If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action may be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to the plaintiff or upon motion. . . . Section 2004(C) specifies the manner and method of effecting service of summons. Indisputably, Plaintiff did not effect service of summons upon any of Defendants in the manner provided by the statute within 180 days of refiling her petition. The statute does not authorize service of summons upon a parties’ counsel. ¶11 Nevertheless, a party may agree to waive service of summons. See Graff v. Kelly, 1991 OK 71, 814 P.2d 489. In addition, a party may be estopped from seeking a § 2004(I) dismissal when that party is responsible for the other party’s failure to timely serve summons. Equitable estoppel holds a person to a representation made, or a position assumed, where otherwise inequitable consequences would result to another, who has in good faith relied upon the representation or position. Oxley v. Gen. Atl. Res., Inc., 1997 OK 46, 936 P.2d 943. ¶12 Here, Plaintiff claims that counsel for Atlantic and United agreed to accept service of summons. However, those two Defendants deny this claim. The trial court held an evidentiary hearing and resolved the factual dispute by dismissing the action, thereby implicitly concluding that Defendants’ counsel had not made an agreement or such representations. ¶13 The findings of a trial court on issues of fact are as binding on appeal as the verdict of a jury, and if there is any competent evidence to support the findings they will not be disturbed. Tax/Inv. Concepts, Inc. v. McLaughlin, 1982 OK 134, 670 P.2d 981; Bullard’s Oil Field Serv., Inc. v. Williford Energy Co., 1992 OK 128, 839 P.2d 185. Trial court error is never presumed; absent a record showing otherwise, we presume that the trial court did not err. An appellant has the duty to provide a sufficient record to demonstrate trial court error. Pracht v. Okla. State Bank, 1979 OK 43, 592 P.2d 976. Here, Plaintiff has not

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submitted either a transcript of the evidentiary hearing or a narrative record thereof. Thus, she has failed to carry her burden of providing a sufficient record to show trial court error. ¶14 Regarding Defendants’ second ground for dismissal, District Court Rule 9 provides, in part: b. Where an action is not diligently prosecuted, the court may require the plaintiff to show why the action should not be dismissed. If the plaintiff does not show good cause why the action should not be dismissed, the court shall dismiss the action without prejudice. A court shall dismiss actions in which no action has been taken for a year as provided in 12 O.S.1981 § 1083.4 ¶15 Here, Plaintiff’s suit was based upon an event which had occurred almost six years previously. Her original lawsuit was filed in 2005. In the intervening four years, she never effected service of summons. The records and briefs provide no justifiable reason or excuse for Plaintiff’s failure to prosecute this action. ¶16 Based upon the record before us, we find no abuse of discretion in the trial court’s grant of dismissal. A dismissal appears to have been justified under either § 2004(I) or District Court Rule 9. However, we note that neither the statute nor the rule authorize a dismissal with prejudice. Nevertheless, any dismissal of an otherwise time-barred case refiled pursuant to 12 O.S.2001 §100, the savings statute, is effectively a dismissal with prejudice since the statute allows only one refiling. Hull v. Rich, 1993 OK 81, 854 P.2d 903; Ashby v. Harris, 1996 OK 70, 918 P.2d 744. Thus, any trial court error in entering the dismissal “with prejudice” is harmless. CONCLUSION ¶17 For all these reasons, the trial court’s order is affirmed. ¶18 AFFIRMED. RAPP, J., and GOODMAN, J. (sitting by designation), concur. 1. Title 12 O.S.2001 §100 provides: “If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.”

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2. Defendants’ request that the case be assigned to Judge Owens was based upon Local Court Rule No. 8. Eventually, the assignment was made without objection by Plaintiff. 3. Effective November 1, 2009, § 2004(I) was amended. We refer here to the version of the statute in effect at the time these proceedings occurred. 4. Title 12 O.S. Supp. 2009 § 1083 provides: Any action in which no pleading has been filed or other action taken for a year and in which no motion or demurrer has been pending during any part of said year shall be dismissed without prejudice by the court on its own motion after notice to the parties or their attorneys of record; providing, the court may upon written application and for good cause shown, by order in writing allow the action to remain upon its docket.

2010 OK CIV APP 29 ALVIS C. HIGGINS, Plaintiff/Appellant, vs. STATE OF OKLAHOMA, Defendant/ Appellee. Case No. 106,529. January 8, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE THOMAS THORNBRUGH, JUDGE APPEAL DISMISSED Alvis C. Higgins, Joseph Harp Correctional Center, P.O. Box 548, Lexington, Oklahoma, Pro Se, Matney M. Ellis, Assistant District Attorney, Tulsa, Oklahoma, for Appellee State of Oklahoma, Jimmy Bunn, Jr., Oklahoma City, Oklahoma, for Oklahoma State Bureau of Investigation. Larry Joplin, Judge: ¶1 Plaintiff/Appellant Alvin C. Higgins (Higgins) seeks review of the trial court’s order denying his motion to expunge criminal records. In this appeal, Higgins asserts the trial court erred in denying his Petition for Writ of Habeas Corpus Ad Testificandum, and denying his motion to expunge in his absence, despite his entitlement to relief under 22 O.S. §§18 and 19. ¶2 Higgins was arrested and charged in two cases. In case CF-2000-5424, filed October 3, 2000, State charged him with three counts of rape in the first degree, two counts of lewd molestation, and one count of sexual battery. In case CF-2000-6050, filed November 3, 2000, State charged him with three counts of lewd molestation. ¶3 Upon trial in July 2002, a jury acquitted Higgins on the three counts of rape, but convicted him of two counts of lewd molestation and one count of sexual battery, and he was

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sentenced to forty-five years incarceration. On January 24, 2003, the trial court dismissed all counts of the second case on “State’s motion to dismiss cases[,] costs to state[,] due to insufficient evidence.” ¶4 In June 2007, Higgins — then incarcerated at Joseph Harp Correctional Center (JHCC) — filed his motion to expunge the records of the three counts of rape (for which he was acquitted), and the three counts of lewd molestation (which State dismissed). In his motion, Higgins requested an order for him to appear at hearing, and he agreed to pay the costs of his transportation. ¶5 On May 7, 2008, Higgins filed his Petition for Writ of Habeas Corpus Ad Testificandum and Motion to Set for Hearing. By letter dated May 21, and addressed to Higgins at JHCC, Judge McAllister advised Higgins: Please comply with 22 O.S. §19 by notifying the arresting agency and the Oklahoma State Bureau of Investigation along with the District Attorney’s Office of the filing of your petition and of the Court date of August 19, 2008. All agencies must receive a minimum 30 days notice. Your attendance is not required[.] [Y]ou should prepare a proposed order and circulate it for signatures and then forward it to the Court. ¶6 The District Attorney for Tulsa County and the Oklahoma State Bureau of Investigation entered appearances and objected to expungement. Higgins objected to denial of his requests to appear at hearing, and filed a reply to the objections to expungement. ¶7 By minute order dated August 19, the trial court (by Judge Thornbrugh) denied Higgins’s motion to expunge. Higgins then filed a motion to clarify, challenging the trial court’s failure to expressly deny his requests to appear. ¶8 On August 26, 2008, Higgins filed a Notice of Intent to Appeal in the trial court and certified the mailing of the notice to the Tulsa Police Department, the Tulsa County District Attorney and the OSBI. On September 2, 2008, Higgins filed his Designation of Record in the trial court. On November 18, 2008, Higgins filed his “Appeal from District Court Denial of Motion to Expunge Record and Brief in Support” with the Supreme Court Clerk to commence the instant proceeding. On December 15, 2008, the 1030

Tulsa County District Attorney filed its answer brief in this appeal. ¶9 In April 2009, the trial court filed its “Memorialization of the Court’s Order of August 19,” and Higgins filed an amended Petition in Error. On June 17, 2009, the Supreme Court assigned the case to the Court of Civil Appeals. ¶10 On July 8, 2009, the OSBI entered a special appearance and motion to dismiss appeal, asserting Higgins’s fatal failure to name or join OSBI as an appellate necessary party and to notify OSBI of the commencement of this appeal. Higgins responded, arguing the record showed that OSBI received notice of and participated in the trial court proceedings, and, he mailed a copy of a Notice of Intent to Appeal, filed in the trial court, to the OSBI. I. Expungement under 22 O.S. §§18 and 19 ¶11 Section 18(A) of title 22, O.S. 2001, authorizes the filing of a motion or petition for expungement of criminal records by a criminal defendant where, inter alia, “[t]he person has been acquitted,” or “[t]he person was arrested and no charges of any type, . . . are filed or charges are dismissed within one (1) year of the arrest, or all charges are dismissed on the merits.” 22 O.S. §18(A)(1), (5). “Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records . . . to be sealed.” 22 O.S. §19(C). (Emphasis added.) ¶12 “To assess what the ends of justice require, the court [must] balance the harm to privacy or other unwarranted adverse consequences to the individual against the public interest in the records.” State v. McMahon, 1998 OK CIV APP 103, ¶10, 959 P.2d 607, 608; Buechler v. State, 2008 OK CIV APP 1, ¶13, 175 P.3d 966, 971. By use of the word, “may,” §19(C) clearly grants the trial court the discretion to grant or deny expungement, or to “fashion a remedy of limited access.” McMahon, 1998 OK CIV APP 103, ¶10, 959 P.2d at 608. ¶13 Pursuant to §19(C), “[a]ny order entered pursuant to this subsection may be appealed by the petitioner, the district attorney, the arresting agency, or the Oklahoma State Bureau of Investigation to the Oklahoma Supreme Court in accordance with the rules of the Oklahoma Supreme Court.” Moreover:

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In all such appeals, the Oklahoma State Bureau of Investigation is a necessary party and must be given notice of the appellate proceedings. Id. (Emphasis added.) II. Review of Orders for Expungement ¶14 Prior to 1999, orders entered under §19 were subject to review as a civil appeal. See, In re Adoption of Supreme Court Rules for Expungement of Records, 2005 OK 32, ¶1, 120 P.3d 861; McMahon, 1998 OK CIV APP 103, ¶10, 959 P.2d at 609, fn. 1. Effective November 1, 1999, however, the legislature directed review of orders entered under §19 by the Oklahoma Court of Criminal Appeals. 22 O.S. Supp. 1999 §19; In re Adoption of Rules, 2005 OK 32, ¶2, 120 P.3d at 861; Hoover v. State, 2001 OK CR 16, 29 P.3d 591. In the 2002 session, the legislature amended §19 to require review of expungement orders by the Oklahoma Supreme Court. 22 O.S. Supp. 2002 §19(C); In re Adoption of Rules, 2005 OK 32, ¶3, 120 P.3d at 861. Consequently, the instant appeal has been assigned to this Court for review.

A. Timely Filing ¶17 “Appellate review is commenced by a petition in error filed within thirty days of the judgment or final order date.” Tinker Inv. & Mortg. Corp. v. City of Midwest City, 1994 OK 41, ¶9, 873 P.2d 1029, 1036. “Timely commencement is jurisdictional[,] [and] [f]ailure to file an appeal within the statutory time is fatal. . . .” Id. The thirty-day period in which to file a petition in error begins on the date the judgment or order memorializing the appealed decision is filed in the trial court. 12 O.S. §§696.2, 696.3, 990A. ¶18 In the present case, Higgins attempted to commence the instant action by filing his “Appeal” in November 2008, before filing of the final appealable order memorializing denial of his motion to expunge. Within thirty days after the filing of the final appealable order in April 2009, Higgins filed an amended Petition in Error to include the final appealable order. Higgins timely commenced the instant appeal. ¶19 That said, we need not address the notice issue. The issue of appellate joinder is dispositive in this proceeding.

III. Timely Filing and Necessary Parties

B. Necessary Parties

¶15 As we have observed, in an appeal from an expungement order, “the Oklahoma State Bureau of Investigation is a necessary party and must be given notice of the appellate proceedings.” 22 O.S. §19(C). In its special appearance/motion to dismiss, OSBI asserts Higgins did not timely file this appeal, or notify them of this appeal, or ever name the “Oklahoma State Bureau of Investigation” as a party to this appeal.

¶20 “Necessary parties are those who are necessary to a determination of the entire controversy.” 59 Am. Jur. 2d, Parties, §10. “’[N]ecessary parties are defined as those without whom no decree at all can be effectively made.’” First Nat. Bank of Enid v. Clark, 1965 OK 71, ¶12, 402 P.2d 248, 250. (Citation omitted.) “’When a necessary or an indispensable party is omitted, the court cannot, as a rule, assume jurisdiction.’” Id.

¶16 Determination of OSBI’s motion to dismiss requires a construction of §19. “The primary goal of statutory construction is to ascertain and follow the intent of the legislature.” Stump v. Cheek, 2007 OK 97, ¶9, 179 P.3d 606, 609. “The words of a statute will be given their plain and ordinary meaning unless it is contrary to the purpose and intent of the statute when considered as a whole.” Id. “[W]e must consider relevant portions together” to “render every part operative.” Samson Hydrocarbons Co. v. Oklahoma Tax Com’n, 1998 OK 82, ¶7, 976 P.2d 532, 537-538; Comer v. Preferred Risk Mut. Ins. Co., 1999 OK 86, ¶19, 991 P.2d 1006, 1015, fn. 35. Vol. 81 — No. 11 — 4/17/2010

¶21 The legislature has, on at least one other notable occasion, designated a state board or commission as a necessary party in an appeal: Within the ten (10) days after the day a notice of decision of the Board of Review is mailed to the parties, the Oklahoma Employment Security Commission, or any party to the proceedings before the Board of Review, may obtain judicial review thereof by filing in the district court of the county in which the claimant resides, or if the claimant is not a resident of the State of Oklahoma then in the district court of Oklahoma County, a petition for review of such decision, against the Board of Review. In such petition for review all other parties

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to the proceeding before the Board of Review and the Commission shall be made codefendants. . . . 40 O.S. §2-610(1). This statute requires the Oklahoma Employment Security Commission to be named as an appellate party in any proceeding for review of a decision of its Board of Review, and “[w]hen the ten-day appeal period provided in 40 O.S. §2-610 has run without all necessary parties being named, the district court is without jurisdiction.” Oklahoma Employment Sec. Com’n v. Carter, 1995 OK 74, ¶13, 903 P.2d 868, 871. (Emphasis added.) Furthermore, after the time for commencement of the appeal has passed, omitted necessary parties may not ordinarily be added by amendment to the petition for review. Williams v. Oklahoma Employment Sec. Comm’n, 1995 OK CIV APP 66, ¶11, 898 P.2d 1320, 1323. See also, Ok.S.Ct.R. 1.26(a), 12 O.S. 2001, Ch. 15, App. 1.1 ¶22 Section 19(C) directs an appeal of an expungement order “to the Oklahoma Supreme Court in accordance with the rules of the Oklahoma Supreme Court,” and, “[i]n all such appeals, the Oklahoma State Bureau of Investigation is a necessary party and must be given notice of the appellate proceedings.” Section 19(C) clearly mandates joinder of the OSBI as a necessary party on appeal, and the failure to name the OSBI constitutes a jurisdictional flaw which may not be cured by amendment after the time to appeal has expired. ¶23 Higgins never named OSBI as an appellate party in his initial filing or in his amended Petition in Error. Notwithstanding the entry of appearance by the Tulsa County District Attorney, Higgins’s failure to name OSBI, a necessary appellate party, divests this Court of appellate jurisdiction to review Higgins’s complaints. ¶24 This appeal is therefore DISMISSED. BELL, V.C.J., and MITCHELL, J., concur. 1. “ An amendment to a petition in error may not add non-nominal parties appellee or appellant after expiration of the time for commencing an appeal.”

2010 OK CIV APP 33 ALEA LONDON LTD., Plaintiff/Appellant, vs. CANAL CLUB, INC., d/b/a THE WILD COCONUT, an Oklahoma Corporation; CHARLENA J. KENNEDY, Individually; and ERICA L. GILMORE, Individually, Defendants/Appellees, and Tanya Wistrand, 1032

Individually; Stephen Wistrand, Individually; Diversified Historic Properties, Inc., an Oklahoma Corporation, Defendants. Case No. 107,139. October 23, 2009 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE CAROLYN R. RICKS, TRIAL JUDGE REVERSED AND REMANDED Robert W. Hayden, SPECK & HAYDEN, Oklahoma City, Oklahoma, for Plaintiff/Appellant, Mort Goodwin Welch, WELCH & SMITH, P.C., Oklahoma City, Oklahoma, for Defendant/ Appellee, Canal Club, Inc., Gary B. Homsey, Kevin E. Hill, HOMSEY, COOPER, HILL & ASSOCIATES, Oklahoma City, Oklahoma, for Defendants/Appellees, Charlena J. Kennedy and Erica L. Gilmore. CAROL M. HANSEN, PRESIDING JUDGE: ¶1 Alea London Ltd.1 (Plaintiff) appeals a judgment which found the commercial general liability policy (CGL policy) it issued provided coverage for a damage award in another lawsuit (the underlying lawsuit) in favor of Erica L. Gilmore (Gilmore) and Charlena J. Kennedy (Kennedy) against Canal Club, Inc., d/b/a The Wild Coconut (Canal Club). We conclude the CGL policy does not provide such coverage under the circumstances presented, reverse the judgment of the trial court, and remand the case for entry of an order granting judgment in favor of Plaintiff. ¶2 The parties raise no disputes concerning the following events which underlie this appeal. George Romon Valle (Valle) was intoxicated when he entered Canal Club’s business, The Wild Coconut. Once there, he had an altercation with another customer, and an employee escorted him outside the premises. Later, very early the next day, Gilmore’s stalled car was on the right shoulder of I-40 near the Agnew exit in Oklahoma City, Oklahoma, when it was struck from behind by a car driven by Valle. Gilmore and Kennedy each suffered serious injuries. Valle was legally intoxicated at the time of the accident and later entered a plea of guilty to the charge of causing an accident with great bodily injury. ¶3 Gilmore and Kennedy filed a petition on December 26, 2006, which alleged Valle had

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been served liquor while he was noticeably intoxicated. They named Canal Club, Canal Club’s sole shareholder Stephen Wistrand, and his wife Tanya Wistrand, also known as Tongyoo Wistrand (the Wistrands) and Valle as defendants in the underlying lawsuit. Canal Club tendered its defense in the underlying lawsuit to Plaintiff, which refused the tender because of liquor liability exclusions in the CGL policy. Canal Club had liquor liability coverage of $100,000 under a commercial liability policy with United States Liability Insurance Group’s Mount Vernon Fire Insurance Company (Mount Vernon). Mount Vernon provided Canal Club’s defense in the underlying lawsuit. ¶4 On July 19, 2007, Plaintiff filed a petition seeking a declaratory judgment determining its CGL policy did not provide coverage for Gilmore and Kennedy’s claims and it had no duty to defend the underlying lawsuit. Plaintiff filed an Amended Petition for Declaratory Judgment on October 8, 2007 in which it claimed the policy excluded coverage for the claims in the Amended Petition filed on July 26, 2007 in the underlying lawsuit, and it had no duty to defend a lawsuit seeking damages to which its CGL policy did not apply or pay the amount of any judgment Gilmore and Kennedy might obtain in their favor. The first cause of action in the Amended Petition in the underlying lawsuit continued to claim liability existed based upon service of alcohol to Valle when he was noticeably intoxicated. The second cause of action alleged Valle became intoxicated before entering Canal Club’s premises, its employees escorted him from those premises while he was still in an intoxicated state, and those employees negligently breached a duty of reasonable care when they “failed to make sure” Valle did not leave the area outside its premises, get into his car, and drive while he was intoxicated. On October 19, 2007, Canal Club and the Wistrands answered and filed a counterclaim in Plaintiff’s declaratory judgment lawsuit which argued Plaintiff had breached the CGL policy by refusing to participate in the defense of the underlying lawsuit and its liability under the second cause of action of the Amended Petition. ¶5 By the time of a December 17, 2007 nonjury trial limited to the issue of damages, the following occurred: (1) Gilmore and Kennedy had dismissed without prejudice all claims against the Wistrands, Brewer Entertainment, Vol. 81 — No. 11 — 4/17/2010

Inc., Bricktown Canal Properties, and Diversified Historic Properties, Inc., and claims against Canal Club in the first cause of their amended petition which alleged it had served Valle alcohol while he was intoxicated; (2) Diversified dismissed without prejudice cross-claims against Canal Club and the Wistrands in the underlying lawsuit; and (3) Plaintiffs dismissed without prejudice Diversified and the Wistrands from its declaratory relief action. The day after trial, Gilmore and Kennedy dismissed without prejudice all claims against Valle. Following Valle’s dismissal, only resolution of liability under the second cause of action in the Amended Petition remained pending. ¶6 The trial court entered judgment against Canal Club and in favor of Gilmore and Kennedy in the underlying lawsuit. It awarded Gilmore judgment for a total of $2,201,643.41 (a $2,000,000 judgment, $1,973.52 for attorney fees, and $199,669.89 in prejudgment interest), and awarded Kennedy judgment for a total of $1,651,725.95 (a $1,500,000 judgment, $1,973.52 for attorney fees, and $149,752.43 in prejudgment interest). By an agreed order filed on March 6, 2008, Gilmore and Kennedy each filed a counterclaim in Plaintiff’s declaratory judgment action which alleged Plaintiff was liable under its CGL policy for the judgment against Canal Club in their underlying lawsuit. ¶7 Canal Club moved for summary judgment in Plaintiff’s declaratory relief action and argued the liquor liability exclusion in the CGL policy did not apply and Plaintiff was liable for the judgment in the underlying lawsuit. The same day, Gilmore and Kennedy also moved for summary judgment. They incorporated Canal’s motion into their own and presented only arguments regarding the application of the per occurrence coverage limits, liability for pre-judgment and post judgment interest, and liability for costs in light of Plaintiff’s refusal to defend in the underlying lawsuit. Plaintiff filed a supplemental response and motion for summary judgment in which it argued the trial court could consider whether Canal Club had a legally cognizable duty to deny an intoxicated person access to his vehicle and it had no duty to defend or indemnify Canal Club for the claims because its policy did not apply. ¶8 The trial judge entered an order on April 28, 2009 which denied Plaintiff’s motion for summary judgment and granted the motions for summary judgment of Canal Club, Gilmore, and Kennedy (Defendants). The judgment

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found the CGL policy provided coverage for Canal Club’s liability to Gilmore and Kennedy. The trial judge ordered Plaintiff to pay the $1,000,000 per occurrence limit of the CGL policy and allocated $571,428 to Gilmore and $428,572 to Kennedy. Gilmore and Kennedy also received a joint and several judgment for $1,973.53 in taxable costs, and judgment for prejudgment interest and post-judgment interest. Canal Club also was granted judgment in the amounts awarded to Gilmore and Kennedy which totaled, respectively $882,355.36 and $661,824.97. ¶9 When considering Plaintiff’s appeal, we first address the scope of the issues properly before us. Canal Club’s liability was determined in the underlying lawsuit and is not before us. The only issue presented on appeal is whether the CGL policy provided coverage and Plaintiff therefore was liable to pay available policy limits to Gilmore and Kennedy as a result of the judgment against Canal Club. ¶10 Summary judgment is only appropriate when there is no substantial controversy as to any material fact, and the moving party is entitled to judgment as a matter of law. Lowery v. Echostar Satellite Corporation, 2007 OK 38, 160 P.3d 959. The interpretation of an insurance contract and whether it is ambiguous is determined by the court as a matter of law. Haworth v. Jantzen, 2006 OK 35, 172 P.3d 193. Issues of law are reviewed de novo. Kluver v. Weatherford Hospital Authority, 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. That is, the appellate court exercises plenary, independent and non-deferential authority to re-examine a trial court’s legal rulings. Manley v. Brown, 1999 OK 79, 989 P.2d 448. ¶11 Insurance is a contract, and an insurer’s liability to its insured is defined by the contract. Roads West, Inc. v. Austin, 2004 OK CIV APP 49, 91 P.3d 81. Parties to an insurance contract are at liberty to cover such risks as they see fit, they are bound by the terms of their contract, and the courts are not at liberty to rewrite those terms. American Economy Ins. Co. v. Bogdahn, 2004 OK 9, 89 P.3d 1051. The general declaration of insurance coverage determines an insurance company’s liability and the insured’s rights under the contract by identifying what risks are covered and excluded by the policy. Dodson v. St. Paul Insurance Company, 1991 OK 24, 812 P.2d 372. “The policy exclusions are read seriatim; each exclusion eliminates coverage and operates independently against the general declaration of insurance 1034

coverage and all prior exclusions by specifying other occurrences not covered by the policy.” 1991 OK 24, ¶13, 812 P.2d at 377. ¶12 There is no dispute Plaintiff issued a CGL policy to Canal Club which had a liability limit of $1,000,000 per occurrence. Defendants argued the CGL policy provided coverage for the violation of a duty to prevent Valle from leaving the premises and driving his vehicle while he was intoxicated. Plaintiff claimed it had no liability for the judgment obtained in the underlying lawsuit because no such duty is recognized at law or exclusions applied. ¶13 In its response to Defendants’ motions for summary judgment, Plaintiff argued Canal Club breached the CGL policy by failing to give timely notice in the underlying lawsuit of the dismissal of the dram shop action stated in the first cause of action in the amended petition, of its intent not to defend itself by contesting the claimed duty in the second cause of action, of its intent to “assume an obligation by confessing liability,” and of failing to provide notice of the entry of judgment in the underlying lawsuit “until well after the time to appeal had run.” It argues it cannot be liable as a matter of law for the basis of judgment in the underlying lawsuit because the duty claimed is not one imposed under Oklahoma law. ¶14 Canal Club claims it was relieved of any obligation to notify Plaintiff of its dismissal of claims in the amended petition and of the entry of the judgment once Plaintiff declined to provide a defense based upon a lack of coverage. On the contrary, an insured’s failure to keep an insurer informed of critical post-denial developments may modify, excuse or provide a defense to the performance of an insurer’s contractual duties. See First Bank of Turley v. Fidelity and Deposit Insurance Company of Maryland, 1996 OK 105, 928 P.2d 298. Jumping analytically from the fact a judgment exists to imposing liability for the judgment under an insurance policy ignores the required intermediate step, a determination of coverage, the focus of the declaratory relief proceeding. ¶15 Defendants’ citation to the general rule stated in the garnishment proceedings in Greene v. Circle Insurance Company, 1976 OK 173, 557 P.2d 422, that an insurer “who is required either by law or contract to protect another from liability” is bound by the result and material facts established in litigation does not advance analysis here. Applying that general

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rule here would beg the question because whether Plaintiff is “required either by law or contract” is precisely what is at issue in the declaratory judgment action. ¶16 Any liability to pay the judgment in favor of Gilmore and Kennedy derives from a duty to indemnify Canal Club for a risk covered under the provisions of the CGL policy. The Insuring Agreement provides for payment of “sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” (Emphasis added.) Coverage must be predicated upon contractual provisions and the courts may not re-write the contract. ¶17 The CGL policy contains exclusions, including one for liquor liability2 and one for liability “for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement,” but the exclusion does not apply to liability for damages “the insured would have in the absence of the contract or agreement.” Plaintiff argued the basis of Canal Club’s liability was an agreed assumption which would not otherwise exist. We agree.

ty” have adopted an analysis which looks to whether there is a nexus between alcohol consumption and the allegations regarding intoxicated patrons who leave the premises. Applying this analysis, the Court distinguished J.A.J. Inc. v. Aetna Casualty and Surety Company, 529 A.2d 806 (Me. 1987), in which the Court concluded an assault sustained by the intoxicated patron allowed to leave could have arisen without any alcohol consumption, from Paradigm Insurance Company v. Texas Richmond Corporation, 942 S.W.2d 645 (Tex.App.-Hous. (14 Dist.) 1997), where negligence necessarily depended upon the patron’s intoxicated state. We find this analysis persuasive. ¶20 How Canal Club’s claimed negligence is inextricably related to and dependent upon intoxication is shown by posing the simple question — if Valle had not been intoxicated, what duty would it have had to restrain his ability to leave its premises and later drive his car? The answer, clearly, is “none,” and the proposed cause of action necessarily depends upon and is inextricably connected to intoxication.

¶18 No Oklahoma case is identified which addresses the duty Defendants claim Plaintiff had to prevent Valle, who was intoxicated, from leaving its premises and driving his vehicle. Defendants’ cited authorities from other jurisdictions, including decisions not included in official reporters, are distinguishable on their facts3 or because they employ an analysis not applicable to the circumstances here, such as negligent entrustment of previously confiscated access to a vehicle,4 active placement of an intoxicated person in a vehicle,5 affirmative acts by an employee which caused injury,6 or a patron was injured by an attack, involvement in an altercation either inside or just outside a business, or by those involved in such an altercation,7 which invoked duties to a business invitee, not third parties encountered later, to warn or protect from assault.

¶21 At common law, establishments serving alcohol incurred no liability for injuries to third parties from the subsequent actions of intoxicated patrons because the patrons’ voluntary consumption8 supplied the required causation link to damages. The threshold question of law in any negligence action is whether a recognized duty was violated. See Johnson v. Fine, 2002 OK CIV APP 47, 45 P.3d 441. Recognition of the duty proposed here “would mean that if an obviously drunk person stumbled into a fast food restaurant, for example, that owner would have a duty to not allow the drunk to leave.” Preferred National Insurance v. Fat Investors, Inc., 842 So.2d 1068, 1069 (Fla.App. 4 Dist. 2003). Canal Club, which Defendants claim did not serve Valle any liquor, is no different than this theoretical fast food restaurant. Tort law is not static, but no Oklahoma authority has been cited or found which adopts the sweeping duty proposed by Defendants.9 Coverage under the CGL policy was not triggered by the basis for judgment in the underlying lawsuit.

¶19 In the well-reasoned decision Capitol Indemnity Corporation v. Blazer, 51 F.Supp.2d 1080, 1089 (D.Nev. 1999), the Court, analyzed several cases which included claims a business negligently allowed a patron to leave in an intoxicated state, and, after taking note of divergent conclusions, found the “vast majori-

¶22 Defendants were not entitled to judgment as a matter of law in the declaratory relief lawsuit because no liability arose under the CGL policy based upon the undisputed facts and circumstances. The orders finding such coverage and entering judgment under the CGL policy in favor of Gilmore, Kennedy, and

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Canal Club are reversed and the case remanded for entry of judgment in favor of Plaintiff. REVERSED AND REMANDED MITCHELL, C.J., and JOPLIN, J., concur. 1. Plaintiff is the insurer of Canal Club, Inc. 2. The provision excludes coverage for: “Bodily injury” or “property damage” for which any insured may be held liable by reason of: (1) Causing or contributing to the intoxication of any person; (2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages. (Emphasis in original.) 3. In Sphere Drake, P.L.C. v. 101 Variety, Inc., 35 F.Supp.2d 421 (E.D.Pa. 1999), two patrons were struck by stray bullets fired by a police officer responding to a call because of another shooting during an altercation between an intoxicated off-duty officer and another patron. The two patrons were returning to a bar area after being prevented from leaving through a kitchen emergency exit. Liability and a duty to defend in the declaratory judgment proceeding were not premised upon failing to prevent an intoxicated patron from leaving but instead upon binding findings in underlying litigation that the injuries were proximately caused by negligence due to the employees’ padlocking of the emergency exit. 4. In both Western Heritage v. Giuliani, 38 Fed.Appx. 974 (4th Cir. (S.C.) 2002) and the unpublished 1992 Ohio case, Prince v. Buckeye Union Insurance Company, 1992 WL 362578 (Ohio App. 5 Dist.), negligent entrustment of previously confiscated access to a vehicle, a circumstance not present here, is cited as the basis for insurer liability. 5. In Auto-Owners Insurance Company v. JC KC, Inc., 1998 WL 766695 (Ohio App. 9 Dist.), another unpublished Ohio case, an intoxicated patron injured in accident which occurred after he was placed in the back seat of a car driven by another intoxicated patron. 6. In Dennis v. The Finish Line, 636 So.2d 944 (La.App.1 Cir. 1994), an employee loaded an intoxicated and unconscious patron into his car. He was awakened over five hours later by a bartender after the club closed and she had run a personal errand. While driving home, the patron ran the plaintiff off the road. As the plaintiff’s vehicle returned to the road, it was struck by a vehicle driven by the bartender, who was following the patron to try to assure he reached his home. In United National Insurance Company v. Penuche’s, Inc., 128 F.3d 28 (1st Cir. (N.H.) 1997), a patron trying to stop other patrons from fighting was injured when an employee pinned a his arms in a “bear hug,” and he fell and struck obstructions. 7. Such circumstances are present in the cited cases Insurance Company of North America v. Spangler, 881 F.Supp. 539 (D.Wyo. 1995), Interstate Fire & Casualty Company, Inc. v. 1218 Wisconsin, Inc., 136 F.3d 830 (D.C. Cir. 1998), J.A.J., Inc. v. Aetna Casualty and Surety Company, 529 A.2d 806 (Me. 1987), Mt. Hope Inn v. Travelers Indemnity Company, 157 N.J.Super. 431, 384 A.2d 1159 (1978), and an unpublished Superior Court of Connecticut decision, Proto v. Hermitage Insurance Company, 2005 WL 1971113 (Conn. Super.). 8. See, e.g., Ohio Casualty Insurance Co. v. Todd, 1991 OK 54, 813 P.2d 508, in which the Oklahoma Supreme Court refused to extend the common law cause of action recognized in Brigance v. Velvet Dove Restaurant, 1986 OK 41, 725 P.2d 300, in favor of the general public to an adult who voluntarily became intoxicated and was injured by his own inability to drive a vehicle properly. 9. Accord, Kovesdy v. Utica Fire Insurance Company, 695 N.E.2d 1165 (Ohio App. 8 Dist. 1997), in which the Court rejected a similar attempt to obtain coverage for a separate negligence claim for a bar’s failure to prevent an intoxicated minor it had served from leaving, after which he drove and caused a collision with a fatality. The Court distinguished the unpublished case Prince, because the liquor-serving establishment there had confiscated keys, thereby assuming a duty, and had negligently returned them. Applying Kovesdy, it would defy logic to impose a separate duty upon an entity which did not serve the intoxicated person when no such liability existed for one who did so serve.

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2010 OK CIV APP 31 IN THE MATTER OF L.H.; N.W.; S.W.; S.W.; and S.C., Alleged Deprived Children, CRYSTAL WHITE, Appellant, ROBERT WHITE, Defendant, vs. THE STATE OF OKLAHOMA, Appellee. Case No. 107,118. March 5, 2010 APPEAL FROM THE DISTRICT COURT OF CUSTER COUNTY, OKLAHOMA HONORABLE JACQUELINE DUNCAN, TRIAL JUDGE REVERSED AND REMANDED Ryan A. Meacham, RANDOLPH S. MEACHAM, P.C., Clinton, Oklahoma, for Appellant, Gina R. Webb, ASSISTANT DISTRICT ATTORNEY, Cheyenne, Oklahoma, for State of Oklahoma. OPINION Wm. C. Hetherington, Jr., Judge: ¶1 Crystal White (White) appeals a trial court order terminating her parental rights to her four minor children as result of a jury verdict filed of record April 16, 2008. We agree notice in this case was insufficient to proceed to trial in the absence of this appellant, and the case must be reversed and remanded for further proceedings. ¶2 In her appeal,1 White alleges two propositions of error: first, the trial court did not make the requisite findings to terminate her parental rights, and second, the judgment ordering termination of White’s parental rights is void for lack of jurisdiction due to defective service. Counsel representing the State filed an Entry of Appearance but then neither filed a Response to Petition in Error nor an Answer brief, and by virtue of an order of the Oklahoma Supreme Court, this case is submitted based upon Appellant’s brief only. ¶3 Although reversal is never automatic when an appellee fails to file an answer brief, Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, this Court is under no duty to search the record for some theory to sustain the trial court judgment, and will ordinarily, where the brief in chief is reasonably supportive of the allegations of error, reverse the appealed judgment. Sneed v. Sneed, 1978 OK 138, 585 P.2d 1363.

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¶4 White’s second proposition is determinative of this appeal. While we do not agree that the failure to comply is jurisdictional, the statutory due process scheme in parental rights termination cases requires more than the initial notice of the petition to terminate parental rights by summons. 10 O.S.Supp. §7006-1.1 ¶5 Prior to an actual hearing, “...notice of the hearing on the application and a copy of the application shall be served upon the parent or putative father who is the subject of the application in the same manner as summons is served in civil cases, not less than 15 calendar days prior to the hearing.” 10 O.S.Supp. §7006-1.2.2 ¶6 Record review demonstrates a failure of compliance with 10 O.S. § 7006-1.2. Notice of the trial proceedings may be made by publication, as was done in this case, but only after the requirements of 10 O.S.2001 § 7006-1.2(A)(3)( a) are met. This section requires: If the identity or whereabouts of a parent or putative father are unknown, the court must determine whether the parent or putative father can be identified or located. Following an inquiry pursuant to subsection B of this section, if the court finds that the identity or whereabouts of the parent or putative father cannot be ascertained, and this fact is attested to by affidavit of the other parent, legal guardian or custodian of the child, it shall order that notice be given by publication and, if the identity is known, that a copy be mailed to the last-known address of the parent or putative father. ¶7 Publication notice was attempted twice, but there is no record of court determination of location efforts with the required affidavit prior to an order authorizing such publication notice. ¶8 Service by publication was insufficient to proceed to trial in the absence of this appellant and the case is REVERSED and REMANDED for further proceedings. BUETTNER, P.J., and HANSEN, J., concur. 1. We note that the petition in error and record designation filed June 17, 2009, are styled as “Crystal White, Robert White” as appellants. However the petition in error cites only “Crystal White” as the sole party seeking appellate relief and we consider accordingly, even though Robert White’s parental rights were also terminated by way of the same jury trial and publication notice. 2. Renumbered and amended as 10A O.S.Supp.2009 § 1-4-905 by Laws 2009, c. 233, §264, emerg. eff. May 21, 2009, after this jury verdict and Termination Order were entered.

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2010 OK CIV APP 30 PAULA CROCKETT, Plaintiff/Appellant, vs. CENTRAL OKLAHOMA TRANSPORTATION & PARKING AUTHORITY, Defendant/Appellee. Case No. 106,966. January 5, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE DANIEL L. OWENS, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Luke Abel, Lynn B. Mares, ABEL LAW FIRM, Oklahoma City, Oklahoma, for Plaintiff/ Appellant, Peter A. Erdoes, PECK, ERDOES & WENZEL, PA, Oklahoma City, Oklahoma, for Defendant/ Appellee. JOHN F. FISCHER, JUDGE: ¶1 Paula Crockett appeals the decision of the district court granting Central Oklahoma Transportation and Parking Authority (COTPA)’s motion to dismiss her negligence suit on statute of limitation grounds. Based on our review of the record on appeal and applicable law, we reverse and remand for further proceedings. BACKGROUND ¶2 This case arose from a March 2, 2007, incident involving a Metro Transit bus operated by COTPA. Crockett alleges that while she was riding on the bus, it came to a sudden stop, and she was thrown from her seat and injured. Immediately after the incident, Crockett noticed that the bus driver was filling out an incident report and she asked the driver for a copy. The driver told Crockett to request a copy from Metro Transit. Crockett called Metro Transit and was told the report could not be located. Metro Transit did, however, mail Crockett a form entitled “Claim Voucher — Property Damage or Personal Injury.” She was asked to complete and return this Claim Voucher. The Claim Voucher requested information concerning the incident, details of any alleged property loss, and whether Crockett had insurance coverage for any damages she suffered. Crockett completed the Claim Voucher, attached a handwritten narrative of the incident, signed the

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Claim Voucher and had it notarized on March 12, 2007. She returned it to “COTPA–Claims” at COTPA’s business address. COTPA states in its pleadings that it received the Claim Voucher on either March 13 or March 15. COTPA forwarded this form to its insurer, American National Insurance Company (Insurer) some time before March 26, 2007. After receipt of the Claim Voucher, COTPA did not respond to or further communicate with Crockett. ¶3 On March 15, 2007, Crockett hired counsel. Counsel wrote to COTPA the same day informing it of his representation of Crockett. On March 26, Insurer responded to Crockett’s counsel, acknowledging his representation. The letter further stated that “when your notice of tort claim is complete, [Insurer needs] additional information to evaluate the injury claim.” The requested information included a medical authorization, a wage authorization, and a recorded statement from Crockett. The letter concluded with the following: our investigation, request for information, or review of materials provided will not extend the time limitations set forth by the GTCA or by any other law. We are not waiving any of the statutory limitations, requirements or exemptions provided by Tit. 51 Chapter 5. On May 9, 2007, Insurer sent a second letter to counsel that differed in two respects. The line previously stating that “when your notice of tort claim is complete” now stated “while your notice of tort claim is complete.” Further, the second letter stated that “we received a notice of tort claim from your client on March 23, 2007.” A copy of the Claim Voucher was attached to this letter.1 ¶4 On January 14, 2008, Insurer wrote to Crockett’s counsel stating that notice of Crockett’s claim had been received on March 13, 2007, and, therefore, the Governmental Tort Claims Act (GTCA) statute of limitations on the claim had expired on December 8, 2007. On January 25, 2008, Crockett’s counsel wrote to Insurer stating that (1) Crockett had not given any notice of claim pursuant to the GTCA, and had until March 2, 2008, to do so; and (2) Insurer’s March 26, 2007 letter stated that the claim was not complete, and Insurer’s requests for information showed that the claim was not complete, tolling the statute of limitations. ¶5 On February 7, 2008, Crockett’s counsel wrote to Insurer inclosing various medical 1038

records and bills, and stating that Insurer’s adjuster had requested the information in a prior phone conversation because “they may be able to get the case resolved.”2 The letter requested that Insurer notify counsel “if this does not accurately state our conversation.” Insurer did not respond. On February 8, 2008, Crockett filed suit against COTPA. Her petition stated that “a claim pursuant to the [GTCA] has been and is being presented to Defendant . . . .” However, Crockett did not file any notice of claim between her January 25 letter and February 8. ¶6 On June 9, 2008, the district court dismissed Crockett’s first petition, without prejudice, for failure to obtain service. Crockett timely refilled her petition and appeals the order dismissing her second petition with prejudice on statute of limitation grounds. STANDARD OF REVIEW ¶7 COTPA’s motion to dismiss and Crockett’s reply included evidentiary materials. This Court has held that a trial court may review evidentiary material attached to a motion to dismiss without converting the motion to one for summary judgment if the motion challenges the court’s jurisdiction. Visteon Corp. v. Yazel, 2004 OK CIV APP 52, ¶ 21, 91 P.3d 690, 694. COTPA’s motion to dismiss argued that the applicable limitation periods bar Crockett’s claim. “Compliance with the written notice of claim and denial of claim provisions in §§ 156 and 157 are prerequisites to the state’s consent to be sued and to the exercise of judicial power to remedy the alleged tortious wrong by the government.” Shanbour v. Hollingsworth, 1996 OK 67, ¶ 7, 918 P.2d 73, 75. “Judicial power is invoked by the timely filing of the governmental tort claims action pursuant to § 157, and expiration of the 180-day time period in § 157(B) operates to bar judicial enforcement of the claim against the government to which the Legislature waived sovereign immunity.” Id. Consequently, we review COPTA’s motion to dismiss de novo to determine whether the petition is legally sufficient. Indiana Nat’l Bank v. Dep’t of Human Servs., 1994 OK 98, ¶ 2, 880 P.2d 371, 375. ANALYSIS ¶8 COTPA is a public trust subject to the GTCA. 51 O.S.2001 & Supp. 2008 §§ 151-200. COTPA contends that Crockett’s claim was either barred pursuant to GTCA section 156(B), because Crockett did not provide notice of the

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claim within one year of the injury, or barred pursuant to GTCA section 157(B) because Crockett did not file suit within 180 days of the denial of her claim. I. The Section 156 Limitation Period ¶9 In response to COTPA’s motion to dismiss her suit, Crockett argued that she did not intend to file a notice of claim when she returned the COTPA Claim Voucher, and that COTPA could not initiate the GTCA notice process on her behalf.3 In its reply, COPTA argued that if the Claim Voucher did not constitute notice then no notice had been filed, the time for filing her notice of claim had passed and Crockett’s suit was barred by section 156(B) for failure to give notice within one year of the incident. Sections 156(D) and (E) state the minimum requirements for GTCA notice: (D) A claim against a political subdivision shall be in writing and filed with the office of the clerk of the governing body. (E) The written notice of claim to the state or a political subdivision shall state the date, time, place and circumstances of the claim, the identity of the state agency or agencies involved, the amount of compensation or other relief demanded, the name, address and telephone number of the claimant, and the name, address and telephone number of any agent authorized to settle the claim. Failure to state either the date, time, place and circumstances and amount of compensation demanded shall not invalidate the notice unless the claimant declines or refuses to furnish such information after demand by the state or political subdivision. Although the Claim Voucher submitted by Crockett did not contain all of the information identified in this statute, section 156(E) is clear; the lack of certain required information does not “invalidate the notice.”4 The Claim Voucher identified Crockett and the incident during which she claimed to have been injured. It was in writing and filed with COTPA Claims as directed by COTPA in the instructions accompanying the voucher. Although it cannot be determined from this record who was the “clerk” of COTPA for purposes of filing section 156 notice, COTPA does not argue that the Claim Voucher was not filed with the proper person.5 Vol. 81 — No. 11 — 4/17/2010

¶10 Crockett’s argument that COTPA impermissibly “controlled” the filing of her GTCA notice is unpersuasive. Despite the fact that section 156(B) permits a claimant one year within which to file a claim, a claimant may choose to file sooner. Although the Claim Voucher and accompanying information sent by COTPA requested information that constituted GTCA notice if returned, COTPA neither set a time limit on the return of the completed Claim Voucher, nor attempted to limit Crockett to only that method of filing her notice of claim. Crockett cites no authority supporting the conclusion that the Claim Voucher was not GTCA notice merely because COTPA sent her the blank form. Crockett voluntarily chose to complete the Claim Voucher and return it on March 12, 2007. The returned Claim Voucher satisfied the requirements of section 156 as of no later than March 23, 2007, the latest date on which agents for COTPA represented that the Claim Voucher had been received.6 The Claims Voucher was filed within one year of the March 2, 2007, incident, and consequently Crockett gave notice of her claim within one year as required by Section 156. II. The Section 157 Limitation Periods ¶11 COTPA also argues that Crockett’s claim is barred by section 157. That section contains two critical periods. First, a 90-day “period for approval” begins on the filing of a notice of claim. During this time, the governmental entity evaluates the claim and may approve or deny it. If this 90-day period expires without response from the governmental entity, the claim is deemed denied and the claimant must file suit within the following 180 days. The record shows that neither party was particularly precise in communicating its intentions or understanding regarding these time periods. Nonetheless, as previously stated, Crockett’s Claim Voucher served as the notice required by section 156 and was filed no later than March 23, 2007. In the absence of any further action, Crockett’s claim would consequently have been deemed denied on June 21, 2007. However, on March 26, Insurer requested additional information regarding Crockett’s claim. A. The March 26 Letter ¶12 It is not disputed that Crockett’s initial claim lacked all of the information required by section 156(E). It contained only a limited description of her injuries, and did not state the amount of compensation demanded. Further,

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Insurer stated in its March 26, 2007, letter that it did not consider Crockett’s claim to be complete and required additional information to evaluate the claim. A request by a governmental entity that the claimant supply additional information necessary to evaluate the claim suspends the 90-day period of approval and eliminates any time that has run from the filing of the notice. Bivins v. State ex rel. Oklahoma Mem’l Hosp. 1996 OK 5, ¶ 11, 917 P.2d 456, 462. Bivens states: A government-declared deficiency in the first notice and the agency’s expressed interest in being better informed about the claim erase the time that may have run and invite the transmission of a completed (or consummated) notice. . . . During the interval between the request for further information and its timely submission, the then-pending 90-day period — initially triggered by the earlier (perceived as deficient or flawed) notice — must be treated as legally arrested and erased. Id. at ¶¶ 12, 14, 917 P.2d at 462, 463. Clearly, Insurer’s March 26 letter served this purpose and suspended the initiation of the 90-day approval period provided for in section 157(A). ¶13 Bivens also noted that this construction could lead to unreasonable delays in claim processing because a claimant might try to indefinitely prolong the 90-day approval period by withholding information after a request. To counter this undesirable effect, Bivens stated that: a public agency is not without means to protect itself from an open-ended effect which may flow from an initial notice (found deficient) that is to be supplemented at the agency’s request. It may (a) direct that supplemental information must be received on or before a stated date and (b) make it clear that if neither submission nor satisfactory explanation is timely made, the deficient claim’s notice will stand denied at the end of the initially triggered 90-day period or at some other date that follows the deadline for submission of supplemental data. Id. at ¶ 17, 917 P.2d at 464. The Bivens procedure allows COTPA, after declaring that it required further information to evaluate the claim, to condition the reinstatement of the 901040

day period on a reasonably timely response by the claimant. Insurer’s March 26, 2007, letter asked Crockett to “respond to these requests within the next fourteen days to expedite the handling of your client’s claim.” However, the letter did not state that failure to submit the requested information would result in a return to the initially triggered 90-day period or that the 90-day period would automatically begin at the end of the fourteenth day. Consequently, the March 26 letter suspended the initiation of the 90-day approval period without imposing a date on which it would begin to run.7 B. The May 9 Letter ¶14 Regardless of the confusion generated by the parties’ correspondence, it is clear that by May 9, 2007, Insurer considered Crockett’s Claim Voucher sufficient for purposes of evaluating her claim. Insurer’s May 9 letter so informed Crockett’s counsel. Consequently, we hold that Crockett’s submission of the Claim Voucher satisfied the GTCA notice requirements, that Insurer’s March 26 letter requesting additional information to evaluate the claim suspended the 90-day approval period and erased the time between March 23 and May 9. Consequently, the 90-day approval period provided for in section 157(A) began to run on May 9, 2007. ¶15 The next issue to be resolved is whether the May 9 letter’s repetition of the previous request for information was sufficient to suspend the initiation of the 90-day approval period again. Crockett argues that although the May 9 letter declared the claim complete, the letter’s repetition of the March 26 request for medical bills and a recorded statement implied that further information was needed to evaluate the claim, and the claim therefore remained incomplete. Crockett also argues that her eightmonth delay in sending the requested information was not unreasonable, relying on language in Bivens that a claimant may “respond within a reasonable or stated time to … a government’s post-notice request for more information about the claim.” Bivens at ¶ 10, 917 P.2d at 461. We find Crockett’s argument unpersuasive. ¶16 First, Crockett’s argument is inconsistent with Bivens and section 157. To accept Crockett’s argument would be to find that “a public agency is . . . without means to protect itself from an open-ended effect which may flow from an initial notice (found deficient) that is to be supplemented at the agency’s request.” Id.

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at ¶ 17, 917 P.2d at 464. Although we find that Insurer’s March 26 request for additional information within fourteen days was insufficient to automatically trigger the 90-day approval period at the end of that time, the May 9 letter clearly states that Insurer considered Crockett’s claim to be complete and that the requested information was therefore not necessary to evaluate her claim. It is the governmental agency that may, pursuant to Bivens, determine when a claim is capable of evaluation. Further, Crockett’s eight-month delay in providing the requested information without any explanation of the reason for that delay was not responsive to Insurer’s March 26 or May 9 requests for the information within fourteen days. Again, once a request for information to evaluate the claim has been filed, Bivens does not contemplate that the claimant then controls when the 90-day period begins to run. ¶17 Second, a request for information does not always erase the 90-day time period. See Trent By and Through Trent v. Bd of County Comm’rs of Johnston County, 1988 OK 15, 755 P.2d 615 (holding that the 90-day evaluation period begins to run from the time notice of a claim has been filed even though the public agency requests additional information after that date); Doe v. Indep. School Dist. No. I-89, 1988 OK 115, ¶ 10, 780 P.2d 659, 661. (“We find no merit in appellant’s argument that appellees’ request for additional information somehow extended the statute of limitations.”). After a claim has been evaluated, the GTCA contemplates that communications between the parties may occur in an attempt to resolve the matter without litigation. That communication will invariably involve the exchange of additional information, and Bivens does not stand for the proposition that each request restarts the 90-day clock. After Insurer clearly informed Crockett in its May 9 letter that her claim was deemed complete, Insurer’s request for additional information on and after that date did not again suspend the initiation of the 90-day period. III. Dismissal Pursuant to Section 157(B) ¶18 Because COTPA did not formally deny Crockett’s claim, it was deemed denied on August 7, 2007, 90 days after the May 9 notice that the claim was complete. Consequently, Crockett was required to file suit no more than 180 days later, or by February 4, 2008.8 However, Crockett did not file her suit until February 8, 2008. Consequently, her suit was barred Vol. 81 — No. 11 — 4/17/2010

unless either the 90 or 180-day period was enlarged. Section 157 “authorizes an enlargement of the 90 day period for denial of a claim and it authorizes an enlargement of the 180 day period for commencement of an action. The sole requirement for an enlargement of time is that the parties agreed to such an enlargement in writing.” Vaughan v. City of Broken Arrow, 1999 OK 47, ¶ 9, 981 P.2d 316, 319-20. ¶19 Several events occurred after May 9, 2007, relevant to this issue. On June 19, 2007, Crockett sent Insurer an affidavit from a witness to the incident. Insurer did not request this information. An unsolicited delivery of information does not restart the 90-day period.9 On January 14, 2008, Insurer wrote to Crockett’s counsel stating that it believed the statute of limitations on the claim had expired as of December 8, 2007.10 Crockett’s counsel responded on January 25, stating that (1) Crockett had not yet given notice of her GTCA claim, (2) that she had until March 2, 2008, to do so, and (3) Insurer’s March 26 letter requesting additional information suspended the beginning of the 90-day evaluation period. Before filing suit on February 8, 2008, Crockett’s counsel again wrote to Insurer. This letter is dated February 7 and states that Crockett’s counsel spoke with Insurer’s adjuster “between January 27 and February 8, 2008.” In that conversation, the adjuster purportedly requested the medical records and bills requested in Insurer’s March 26, 2007, letter and stated that “we may be able to get this case resolved.” In the February 7 letter, counsel requested that Insurer respond if the description of this conversation was incorrect.11 ¶20 Although section 157 requires a waiver of the limitations period to be in writing, Cortright v. City of Oklahoma City, 1997 OK 158, ¶ 8, 951 P.2d 93, 97, notes that: under extant jurisprudence, evidence of the acts of the parties as a whole will be considered to determine the existence of an agreement and a writing signed by only one party can be binding if there was a meeting of the minds on essential elements on unequivocal terms and one party acted thereon in good faith. Further, evidence of a writing signed by one party and acceptance of the terms of the writing by the other is sufficient to bring the action within the statute of limitations for written contracts. These general rules are not inconsistent with the words of § 157(A) — agreed

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to in writing by the claimant and the state or political subdivision . . . . Crockett’s counsel described the conversation with Insurer’s adjuster in his February 7 letter and invited Insurer to respond if his description did not reflect the parties’ conversation. COTPA neither denied the described version of the conversation nor responded to the letter. These facts may be sufficient to satisfy the requirements of Cortright. If the conversation described by Crockett’s counsel took place before February 4, 2008, it creates an issue of fact as to whether Insurer agreed to toll the 180-day limitation period. However, from this record we cannot determine when the conversation took place, and we therefore cannot determine whether the section 157 limitation period was tolled prior to February 4, 2008. ¶21 Further, based on the facts asserted by her counsel, Crockett may be entitled to a defense to COTPA’s section 157 limitation period argument based on equitable estoppel. A fact question as to whether a defendant is estopped from interposing the defense of a time bar is generally raised by a plaintiff’s allegations that the defendant had made (a) some assurance of settlement negotiations reasonably calculated to lull the plaintiff into a sense of security and delay action beyond the statutory period, or (b) an express and repeated admission of liability in conjunction with promises of payment, settlement or performance, or (c) any false, fraudulent or misleading conduct or some affirmative act of concealment to exclude suspicion and preclude inquiry, which induces one to refrain from timely bringing an action . . . . Jarvis v. City of Stillwater, 1987 OK 5, ¶ 4, 732 P.2d 470, 472-73. Likewise, the facts necessary to determine the availability of this defense to Crockett cannot be determined from this record. ¶22 Although it cannot be determined from this record whether COTPA agreed to toll the 180-day limitation period or is estopped from asserting that the 180-period had run, dismissal of Crockett’s petition on the basis that it was not timely filed is inappropriate if either is true. Because factual determinations are necessary to resolve this issue, this case must be remanded to the district court. Bivens, 1996 OK 5 at ¶ 19, 917 P.2d at 464. 1042

CONCLUSION ¶23 The 90-day period of review prescribed by 51 O.S. Supp. 2006 § 156, began to run in this case on May 9, 2007. Therefore, unless tolled by a written agreement of the parties or the conduct of COTPA or its agent, Crockett was required to file suit by February 4, 2008. Because unresolved issues remain regarding the existence of either circumstance, this case must be remanded to the district court for further proceedings. ¶24 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. GABBARD, P.J., and RAPP, J., concur. 1. The record contains several minor inconsistences. COTPA variously describes the date it received the Claim Voucher as either February 13 or February 15. The Claim Voucher is stamped received by Insurer on March 26, 2007, but Insurer represented to Crockett in the May 9 letter that it was received on March 23, 2007. 2. The date of this conversation is not known. However, counsel’s February 7, 2008 letter states that the conversation occurred sometime after his January 25, 2008, letter to Insurer. 3. Although Crockett continues to argue that the returned Claim Voucher did not constitute GTCA notice, that position leads to the conclusion that no notice was ever filed and, therefore, her claim is barred for failure to file notice within one year as required by section 156. Crockett is correct in one respect; her subsequent communications with Insurer did not constitute GTCA notice, per this Court’s recent decision in Smith v. White Oak Sch. Dist. ex rel. State Bd. of Educ. and Farmers Ins. Co., No. 105,108, slip op. (Okla. Civ. App. 2008). Nonetheless, for the reasons discussed in this Opinion, the Claim Voucher submitted directly to COTPA served as the required GTCA notice and preserved Crockett’s right to file suit as permitted by applicable law. 4. COTPA does not argue that Crockett’s delay in submitting the requested information invalidated her GTCA notice. 5. Therefore, we are not concerned with the issue this court decided in Smith v. White Oak Sch. Dist. ex rel. State Bd. of Educ. and Farmers Ins. Co., No. 105,108, slip op. (Okla. Civ. App. 2008). White Oak held that the 1995 amendment to section 156 required strict compliance with the requirement that notice of governmental tort claims be filed “in writing and with the office of the clerk of the governing body.” White Oak examined the sufficiency of a filing with the claims adjuster for a governmental entity’s insurer and, citing Minie v. Hudson, 1997 OK 26, 934 P.2d 1082, held that such “substantial compliance” with the filing requirement was no longer an effective substitute for the statutory process. However, in this case, all communications between Crockett and COTPA’s Insurer occurred after the Claims Voucher was filed. 6. Cf., Carswell v. Oklahoma State Univ., 1999 OK 102, 995 P.2d 1118 (holding that the state was estopped to argue that the 90-day notice period expired on a date prior to the expiration date it cited to the claimant). 7. COTPA relies on Floyd v. Quinton Pub. Schs., 483 F.Supp. 1318 (E.D. Okla. 2006), to argue that the “no extension” language attached to its letters prevents any tolling or resetting of the original 90-day limitation period, irrespective of whether the claim was incomplete, or whether COTPA requested further information. COTPA cites no Oklahoma decision adopting the rationale of Floyd. Nor do we find the federal court’s interpretation of Bivens, and hence the rationale of Floyd, persuasive. Bivens clearly holds that, “[d]uring the interval between the request for further information and its timely submission, the then-pending 90-day period — initially triggered by the earlier (perceived as deficient or flawed) notice — must be treated as legally arrested and erased.” Bivens, 1996 OK 5 at ¶14, 917 P.2d at 463 (emphasis added). Although Bivens allows a government entity to condition the start of the 90-day period on timely compliance with its information request, it does not permit the entity to request additional information and at the same time declare that the 90-day period continues to run during the interim. 8. Although February 4, 2008 is 181 days after the 90-day period expired, February 3 was a Sunday.

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9. “Since the effect we ascribe to an agency’s post-notice request for more data is drawn from the government’s perceived need for more time to evaluate the completed information about a claim, today’s rule will neither benefit nor apply to any claimant-initiated (voluntary) submission of additional data.” Bivens, 1996 OK 5 at ¶ 11, 917 P.2d at 463. 10. Insurer’s representation did not account for the effect of its March 26, 2007, letter previously discussed. 11. While there is an inconsistency between Crockett’s counsel’s affidavit, which states that he spoke with Insurer’s adjuster “between January 25 and February 8” and the letter confirming the conversation, which is dated February 7, this does not affect our current analysis.

2010 OK CIV APP 32 TERRI L. COPE, Plaintiff/Appellee, vs. RICH COPE, Defendant/Appellant. No. 107,126. December 29, 2009 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE KYLE B. HASKINS, TRIAL JUDGE REVERSED AND REMANDED WITH DIRECTIONS Patrick H. McCord, Joel A. LaCourse, STOOPS & LACOURSE, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellee, Keith A. Jones, Tulsa, Oklahoma, for Defendant/Appellant. DOUG GABBARD II, PRESIDING JUDGE: ¶1 Defendant/Appellant, Rich Cope (Father), appeals a summary judgment granted in favor of Plaintiff/Appellee, Terri L. Cope (Mother), determining that the parties’ oral agreement waiving Mother’s right to child support from Father was void and unenforceable, and awarding Mother a judgment against Father in the amount of $97,401.50 plus interest. After review, we reverse and remand with directions. BACKGROUND ¶2 The parties married, had two children, and divorced in 1988. Mother was awarded custody, and Father was ordered to pay child support. Shortly thereafter, the parties began a protracted dispute regarding custody, visitation, and support. During the succeeding years, each party filed pleadings to modify the decree and to charge the other with contempt. ¶3 In December 2004, Mother filed an application for contempt citation, alleging that Father had wilfully failed to pay child support in accordance with a modification order entered in 2000. On March 1, 2005, she filed a motion to modify child support and a request for wage assignment, requesting a recalculation of child Vol. 81 — No. 11 — 4/17/2010

support and a reinstatement of a previous wage assignment on Father’s paycheck.1 Father’s defense was that Mother had agreed to waive his payment of child support. Both parties filed motions for summary judgment. ¶4 In her motion for summary judgment, Mother asserts that there is a valid court order requiring Father to pay child support. However, she admits that, in August 2001, she told Father “if you just leave us alone, and don’t exercise your visitation with the children, you do not have to pay us child support.” Nevertheless, she asserts that this agreement is unenforceable because it “was entirely an oral agreement by and between the parties [and] was never reduced to writing or entered and agreed to before the Court.” She also asserts that a June 18, 2001, court order which struck all pending motions and suspended a wage assignment on Father’s income was not part of any agreement to waive child support, but was only entered to bring the accounts into balance after Father overpaid Mother for daycare expenses.2 ¶5 Father asserts the June 2001 court order was entered pursuant to the oral agreement. He notes that Mother set forth the agreement in writing in two subsequent letters which he attached to his motion for summary judgment.3 Father asserts that this agreement is enforceable and has been fully completed. He also asserts that it would be inequitable to grant Mother child support after such a long period of time has passed and after his right to visitation is no longer enforceable because his children are now adults. ¶6 The trial court granted summary judgment to Mother, held that the parties’ agreement was void and unenforceable as contrary to public policy, recalculated child support effective March 1, 2005 (the date Mother filed her motion), and granted Mother an arrearage judgment of $97,401.50, plus interest. Father appeals. STANDARD OF REVIEW ¶7 Summary judgment may be granted when there is no substantial controversy as to any material fact, and where reasonable persons could not reach different conclusions from the facts. Rule 13(a), Rules for District Courts, 12 O.S. Supp. 2008, ch.2, app.; Ind. Nat’l Bank v. Dep’t of Human Servs., 1993 OK 101, ¶ 10, 857 P.2d 53, 59-60. We review a grant of summary judgment de novo. Young v. Macy, 2001 OK 4,

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¶ 9, 21 P.3d 44, 47. In a de novo review, an appellate court has plenary, independent, and nondeferential authority to determine whether the trial court erred in its legal rulings. Id.4 ANALYSIS ¶8 The validity and legal effect of mutual agreements to waive child support have been litigated for a substantial number of years. ¶9 In State Department of Human Services ex rel. K.A.G. v. T.D.G., 1993 OK 126, 861 P.2d 990, the Oklahoma Department of Human Services (DHS) filed an action to establish the paternity of a minor child born out of wedlock, and to order the payment of child support by the putative father.5 The father filed a motion to dismiss based upon a 1979 written agreement with the mother whereby he released any visitation or other rights to the child in exchange for the mother’s agreement to never file a paternity action or seek child support from him. The trial court granted a dismissal, but the Supreme Court reversed, stating: Public policy prohibits a parent’s contracting away a child’s right to support. A contract attempting permanently to deprive a child of support is void as against public policy. Such an agreement does not prevent Human Services from bringing a paternity action and establishing support obligations… Id. at ¶ 12, 861 P.2d at 995 (emphasis added; footnote omitted). ¶10 Although K.A.G. was limited to a parent’s ability to contract away the child’s right to child support, several divisions of this Court later held that the rule also extended to a parent’s ability to contract away his or her own right to collect child support. See, for example, Hensley v. Hensley, 2000 OK CIV APP 34, 1 P.3d 446; Martin v. Brock, 2001 OK CIV APP 145, 55 P.3d 1095. ¶11 In Hedges v. Hedges, 2002 OK 92, 66 P.3d 364, the Supreme Court disagreed with this analysis. There, a mother brought contempt proceedings against her ex-spouse for failing to pay court-ordered child support, and the father asserted equitable defenses and reliance upon a previous oral agreement wherein the mother allegedly waived payment of child support in exchange for the father paying the family’s bills and not asking for the return of certain personal items. Referring to what is now 43 O.S. Supp. 2008 § 112(A)(3), the Court stated: While the obligor-obligee parents can modify past-due and unpaid installments by 1044

agreement, future support is subject only to prospective modification by the court. In sum, the outer reach of the parties’ mutual agreement is the reduction (or relinquishment) of matured installments, while the outer limit of statutory power confines the court’s authority to reducing (or modifying) unmatured installments. Id. at ¶ 18, 66 P.3d at 372. Essentially, the Hedges court found that post-decree mutual agreements to waive past child support are valid, but post-decree agreements to waive future installments of child support are not enforceable. Nevertheless, the Supreme Court then reversed and remanded the case to resolve a factual dispute regarding the father’s defense of estoppel.6 ¶12 The instant case presents similar facts. The parties’ 2001 mutual agreement regarding the future payment of child support and visitation is clearly unenforceable. However, Father asserted the defense of equitable estoppel as a bar to Mother’s claim for unpaid support, and the trial court erred in not considering it. ¶13 Equitable estoppel is employed to prevent one party from taking a legal position inconsistent with an earlier action that places the other party at a disadvantage. First State Bank v. Diamond Plastics Corp., 1995 OK 21, ¶ 39, 891 P.2d 1262, 1272. It holds a person to a representation made, or a position assumed, where otherwise inequitable consequences would result to another, who has in good faith, relied upon that representation or position. Oxley v. Gen. Atl. Res., Inc., 1997 OK 46, ¶ 20, 936 P.2d 943, 947. An example is Merritt v. Merritt, 2003 OK 68, 73 P.3d 878, where the Supreme Court found that the mother’s failure to pay child support was inexcusable, but determined that estoppel barred the father’s action to collect unpaid support because his delay in doing so resulted in Social Security benefits that could have been paid to him for child support being paid instead to their now adult child. ¶14 In the present case, Father and Mother made a mutual agreement in 2001 wherein each gave up important rights. Father agreed to give up his right to visit his children, and Mother gave up her right to receive child support. Father complied with the agreement, both children are now adults, and it is inequitable for Mother to be allowed to collect child support which was unpaid as a direct result of her representations and actions. We find that equitable estoppel bars her action.

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CONCLUSION ¶15 For all these reasons, the summary judgment in favor of Mother is hereby reversed and remanded with directions that summary judgment be entered in favor of Father. ¶16 REVERSED AND REMANDED WITH DIRECTIONS. FISCHER, J., concurs, and RAPP, J., specially concurs. RAPP, J., specially concurring: ¶1 I fully concur with the equitable estoppel concept advanced by the Majority. This concept provides a sufficient basis to reverse the trial court and cause judgment to be entered for Father. ¶2 However, I also assert that the contract is enforceable under the facts of this case. Both parties entered into an agreement in good faith. Over the years, the agreement was fully executed. Mother received the benefit of her bargain, the exclusive possession and enjoyment of the children and, for her own reasons, the denial to the children of the monetary benefit of child support and enjoyment of Father’s companionship. Father did not pay child support, but at a cost of the irrevocable loss of the joy and love of his children in the bargain. Father can never recover these fleeting childhood moments, nor can they be recreated. Mother received the entire benefit of her contract with Father. Now, she wants that consideration which she relinquished, that is the unpaid child support for her children when they were minors, but who are now adults. It is most interesting to note the adult children are not the plaintiffs here. Furthermore, Mother’s request is wholly inconsistent with the intent of the parties’ original agreement. I note that if this Court were to deny enforcement of this contract, now that the children are adults, such would be tantamount to condoning deceit and fraud. It would also require payment of monies to persons not eligible under the child support statutes. A denial would also ignore the loss Father has endured because he honored and performed the oral contract to his detriment. Further, recognition of the contract is not inconsistent with Hedges, where denial of the contract as to future support involved children who were still minors. For these reasons, I would also include judgment for Father on the contract entered into by the parties. 1. Although Mother did not request a child support arrearage judgment in either the application for contempt or motion to modify, her

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motion for summary judgment requested she be given a “judgment and applicable arrearage and interest.” 2. According to a filing, the June 18, 2001, court order states in part that “[t]he parties have agreed that until further notice the Wage Assignment shall be suspended. The parties have agreed that until circumstances and economic changes occur relating to an adjustment of child support, that the Wage Assignment shall remain in suspension.” 3. Both letters were dated October 10, 2001. One letter was addressed to Father’s attorney and stated in part: “In response to your letter dated September 20, 2001, the court order filed this last June 2001 reflects the only thing I agreed to with Richy. That being all contact between Richy and the children would cease along with all child support or any monies from Richy. No more no less than that.” The other letter was addressed to Father and stated in part: “I am reminding you of the agreement and temporary court order filed in June 2001, stating that there shall be no visitation or efforts of contact made by you, nor child support or monies for any purpose to be paid to us until further legal action is taken. The children and I have honored this court order with no efforts of contacting you or requesting money from you not even once and with no intentions of ever doing so. . . . You made a decision to step out of their lives completely and they are well adjusted and happy with your decision. DO NOT MAKE FURTHER ATTEMPTS TO CONTACT THEM! . . . Still, should you choose to ignore what I have said to you and continue to make contact with them we will expect the child support to resume IMMEDIATELY!” 4. Because neither party disputes the essential terms of the mutual agreement regarding child support and visitation, and the primary issue is the validity and effect of such action, our standard of review is de novo, not whether the trial court order is supported by the clear weight of the evidence. 5. The mother had applied for and received Aid to Families with Dependent Children, and had, pursuant to statute, executed an assignment of her right to collect child support to DHS. 6. Holleyman v. Holleyman, 2003 OK 48, 78 P.3d 921, is consistent with the Hedges rule that parties may mutually agree to waive matured installments of child support, but only the trial court may establish or modify unmatured installments. In Holleyman, the parties made an agreement regarding future support which was incorporated into the consent divorce decree, in much the same manner as parties agree to a deviation from the child support guidelines. In contrast, the present case involves an post-decree agreement which was not included in any consent decree or modification order.

2010 OK CIV APP 36 AMANDA E. MORAN, Plaintiff/Appellant, vs. EDWARD D. JONES & CO., L.P., a Foreign Corporation; EDWARD JONES FINANCIAL COMPANIES, L.L.L.P., a Foreign Corporation; EDWARD JONES TRUST COMPANY, a Foreign Corporation; EDWARD JONES INVESTMENTS, a Foreign Corporation; and GARY W. MORAN, an Individual, Defendants/ Appellees. Case No. 107,679. February 25, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE CAROLYN R. RICKS, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Ryan M. Oldfield, OLDFIELD & BUERGLER, P. L.L.C, Oklahoma City, Oklahoma, for Appellant,

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Johnny R. Blassingame, KERR, IRVINE, RHODES & ABLES, Oklahoma City, Oklahoma, for Edward D. Jones & Co., L.P.,

ARBITRATION AGREEMENT

Gary A. Rife, RIFE WALTERS & BRUEHL, LLP, Oklahoma City, Oklahoma, for Gary W. Moran.

2. The parties are waiving their right to seek remedies in court, including the right to jury trial.

JERRY L. GOODMAN, JUDGE:

3. Pre-arbitration discovery is generally more limited than and different from court proceedings.

¶1 Amanda E. Moran (Moran) appeals the trial court’s September 29, 2009, order granting Edward D. Jones & Co., L.P., a Foreign Corporation; Edward Jones Financial Companies, L.L.L.P., a Foreign Corporation; Edward Jones Trust Company, a Foreign Corporation; Edward Jones Investments, a Foreign Corporation’s (collectively, “Edward Jones”) motion to compel arbitration. Based upon our review of the facts and applicable law, we reverse and remand for further proceedings consistent with this opinion. FACTS ¶2 Moran filed a petition on April 15, 2009, against Edward Jones and her father, Gary W. Moran (Father). Moran alleged Father, while an employee or agent of Edward Jones, mismanaged, mishandled, misappropriated, and converted funds belonging to her held in a custodial trust account (Custodial Trust Account) at Edward Jones. More specifically, Moran alleged that on March 23, 1996, Father wrongfully took $25,836.00 of her money to purchase a vehicle. On August 4, 2009, Edward Jones filed a motion to compel arbitration, asserting arbitration was binding as to all controversies arising out of or relating to Moran’s accounts or transactions with it. Edward Jones attached an Edward Jones Account Agreement which contained the following arbitration agreement: The Edward Jones Account Agreement and Disclosure Statement contains on page 20 a binding arbitration provision which may be enforced by the parties. By my/our signature(s) below, I/we have received a copy of this document including a schedule of fees and Edward Jones Privacy Notice and agree to its terms and conditions. … (Emphasis in original) Moran and Father signed this document on or about January 6, 2004 (the “2004 Agreement”). Page 20 provides, in relevant part:

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1. Arbitration is final and binding on the parties.

4. The arbitrators’ award is not required to include factual findings or legal reasoning and any party’s right to appeal or to seek modification of rulings by the arbitrators is strictly limited. 5. The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry. I agree that this Agreement shall be governed by the laws of the State of Missouri without giving effect to the choice of law or conflict of laws provisions thereof. Any controversy arising out of or relating to any of my accounts or transactions with you, your officers, directors, agents, and/ or employees for me, to this Agreement, or to the breach thereof, or relating to transactions or accounts maintained by me with any of your predecessor or successor firms by merger, acquisition or other business combinations from the inception of such accounts shall be settled by arbitration in accordance with the rules then in effect of the Board of Directors of the New York Stock Exchange, Inc. or the National Association of Securities Dealers, Inc. as I may elect. … (Emphasis in original) Pursuant to this arbitration agreement, Edward Jones asserted Moran had agreed to arbitrate all claims arising out of or relating to any of her accounts with Edward Jones or its employees or agents. ¶3 Moran filed a first amended petition on August 5, 2009, adding the allegation that Father, “in furtherance of his and Defendant Edward Jones fraud against” her and “in an attempt to coverup [sic] conceal and limit exposure and liability … persuaded and coerced” her into executing the 2004 Agreement which contained the arbitration agreement at issue. Edward Jones filed a renewed motion to

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compel arbitration on August 17, 2009, asserting that in addition to the 2004 Agreement, Moran had also executed on June 16, 1997, an Acknowledgement for Full Service and Customer Loan Accounts for another Customer Account Agreement (the “1997 Agreement”). The 1997 Agreement also contains an arbitration agreement, which provides in relevant part: [A]ny controversy arising out of or relating to any of my accounts or transactions with you, your officers, directors, agents and/or employees for me, or to this agreement, or the breach thereof, or relating to transactions or accounts maintained by me with any of your predecessor or successor firms by merger, acquisition or other business combinations from the inception of such accounts shall be settled by arbitration in accordance with the rules then in effect of the Boards of Directors of the New York Stock Exchange Inc., the American Stock Exchange, Inc., the Municipal Securities Rulemaking Board, or the National Association of Securities Dealers, Inc. as I may elect. … Thus, pursuant to the 1997 Agreement and the 2004 Agreement, Edward Jones asserted Moran had twice agreed to arbitrate any claim arising out of or relating to any of her accounts with Edward Jones or its employees or agents. ¶4 Moran filed a second amended petition on August 19, 2009, adding the allegations that on July 16, 1997, after she reached the age of majority, the Custodial Trust Account was closed and a new account was opened with Father, a Joint Investment Account. Father, still an employee or agent of Edward Jones, continued to manage and was a joint signatory on the account. Moran further alleged Father and Edward Jones, “in furtherance of [their] fraud … and in an attempt to coverup [sic] conceal and limit exposure and liability for the same, persuaded, induced and coerced [Moran] into executing [the 1997 Agreement and 2004 Agreement,]” thereby attempting to force her to waive her right to a jury trial by compelling arbitration of all claims. ¶5 Moran filed a response to the motion to compel on August 20, 2009, asserting she was only seeking damages associated with the actions or inactions of Edward Jones or Father that occurred in relation to the Custodial Trust Account, which pre-dates the arbitration agreements that were entered into for purposes of Vol. 81 — No. 11 — 4/17/2010

establishing the Joint Investment Account. Moran argued her claims arose before and occurred prior to the signing of the 1997 Agreement and 2004 Agreement and nothing in the language of the arbitration agreements state it modifies, supersedes, or retroactively applies to prior, unrelated accounts between the parties. Thus, the arbitration agreements are not applicable to her claims in this case. ¶6 Moran further argued that if the court finds the arbitration agreement should be retroactively applied, she was fraudulently induced, persuaded, and coerced into signing the arbitration agreements by Father while acting as an employee and/or agent of Edward Jones. Moran requested, pursuant to Rule 4(c), Rules for District Courts, 12 O.S.2001 and Supp. 2003, Ch.2. App., that the court hold an evidentiary hearing on this issue. Finally, Moran asserted the arbitration agreements did not apply to her tort claims. ¶7 Edward Jones filed a reply on August 28, 2009, asserting the scope of the parties’ arbitration agreements clearly encompasses the disputes at issue, including tort claims. The language provides Moran will arbitrate “[a]ny controversy arising out of or relating to any of my accounts … from the inception of such accounts … .” Thus, the arbitration agreement contained in the 1997 Agreement and 2004 Agreement apply to claims relating to any of Moran’s accounts since their inception, including her Custodial Trust Account. Finally, Edward Jones asserted Moran’s conclusory allegations of fraud were insufficient to meet the particularity requirements to assert such a claim under 12 O.S.2001, § 2009. ¶8 In an order filed on September 29, 2009, the trial court, without specific findings, granted Edward Jones’ motion to compel arbitration. The court did not conduct an evidentiary hearing as requested by Moran before compelling arbitration. Moran appeals. STANDARD OF REVIEW ¶9 The question as to the existence of a valid, enforceable agreement to arbitrate all claims is a question of law to be reviewed de novo. Oklahoma Oncology & Hematology v. US Oncology, Inc., 2007 OK 12, ¶ 19, 160 P.3d 936, 944. ANALYSIS ¶10 Both federal and Oklahoma statutes provide arbitration agreements are valid,

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enforceable, and irrevocable except upon grounds which exist at law or in equity for the revocation of any contract. See Oklahoma Uniform Arbitration Act (OUAA), 12 O.S.2001 and Supp. 2006, § 1851 et seq.; Federal Arbitration Act (FAA), 9 U.S.C.A. § 1 et seq. Fundamental to the right to compel arbitration is an agreement to arbitrate the particular dispute at issue, and “the courts will not impose arbitration upon parties where they have not agreed to do so.” Oncology & Hematology P.C., 2007 OK 12, at ¶ 22, 160 P.3d at 944; Voss v. City of Oklahoma City, 1980 OK 148, ¶ 5, 618 P.2d 925, 929. Under the FAA, however, any doubt as to the scope of arbitrable issues is resolved in favor of arbitration. Wilkinson v. Dean Witter Reynolds, Inc., 1997 OK 20, ¶ 8, 933 P.2d 878, 879. ¶11 To assure parties have consented to arbitration, the trial court will decide whether there is a valid enforceable arbitration agreement, whether the parties are bound by the arbitration agreement, and whether the parties agreed to submit a particular dispute to arbitration. US Oncology, Inc., 2007 OK 12, at ¶ 22, 160 P.3d at 944-45. Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit. AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643 (1986). In determining whether the parties have agreed to arbitrate a dispute, the general rule is that courts should apply ordinary statelaw principles that govern the formation of contracts. Rogers v. Dell Computer Corp., 2005 OK 51, ¶ 19, 138 P.3d 826, 831. If the trial court finds a valid obligation to arbitrate, the trial court’s inquiry normally ceases and the matter should be resolved by an arbitrator. ¶12 On appeal, Moran contends the trial court erroneously granted the motion to compel because her claims against Defendants arise out of their handling of the Custodial Trust Account, in which no arbitration agreement exists. Moran asserts her claims arose prior to the 1997 Agreement and 2004 Agreement and nothing in the language of the arbitration agreements state it modifies, supersedes, or retroactively applies to a prior, unrelated, closed account between the parties. Thus, the arbitration agreements are not applicable to her claims in this case. ¶13 The issue in the present case is whether the arbitration agreements cover the dispute at issue despite the fact the dealings giving rise to the dispute occurred prior to the execution of the agreements. Whether the arbitration agree1048

ments apply to disputes and controversies prior to the date the agreements were executed must be decided on the basis of the express and plain language of the agreements. The arbitration agreements provide, in relevant part: [A]ny controversy arising out of or relating to any of my accounts or transactions with you, your officers, directors, agents, and/or employees for me, or to this agreement, or the breach thereof, or relating to transactions or accounts maintained by me with any of your predecessor or successor firms by merger, acquisition or other business combinations from the inception of such accounts shall be settled by arbitration. … (Bold in original.) ¶14 The arbitration agreements provide it applies to any controversy arising out of any of Moran’s accounts with Edward Jones. Although the language is broad, there is no explicit, retroactive application language in the arbitration agreements providing an agreement to arbitrate preexisting disputes, controversies, or claims. Further, there is no language in the arbitration agreements providing it shall apply retroactively to a closed account. The record on appeal provides that at the time Moran executed the 1997 Agreement and the 2004 Agreement containing the arbitration agreements at issue, the Custodial Trust Account, from which the disputes at issue arose, was closed. We reiterate that parties are bound to arbitrate only those disputes they specifically agree to arbitrate. See Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989) (“[T]he FAA does not require parties to arbitrate when they have not agreed to do so.”). ¶15 In Wilkinson v. Dean Witter Reynolds, Inc., 1997 OK 20, 933 P.2d 878, a client had five (5) separate accounts with Dean Witter Reynolds. Only one of the accounts, an IRA, was in client’s name alone. The remaining four (4) accounts were jointly owned by client and his wife or his family. The accounts were opened at different times and all, except the IRA account, contained an arbitration agreement. Dean Witter Reynolds never presented client with an arbitration agreement covering the IRA account. ¶16 Client sued Dean Witter Reynolds and its employee alleging they had improperly liquidated his IRA assets and converted the funds into a term trust, thereby substantially reducing the value of the IRA. Dean Witter Reynolds sought to compel arbitration, asserting the

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arbitration agreements from the other accounts applied to the IRA. Dean Witter Reynolds relied on the following language from the arbitration agreements: I agree and by carrying my accounts you agree that all controversies between me or my agents or you and your agents or representatives or employees arising out of or concerning any such accounts, any transactions between us or for such accounts, or the construction, performance or breach of this or any other agreement between us, whether entered into prior to, on or subsequent to the date below, shall be determined by arbitration only . . . . ¶17 The Oklahoma Supreme Court disagreed, finding no agreement between the parties to submit disputes arising out of the IRA to arbitration. Id. at ¶ 10, 933 P.2d at 879. The Court found “the parties were different as to each account, and the nature of the accounts containing arbitration provisions was significantly different from the IRA.” Id. Thus, the Court held the trial court correctly found no valid agreement to arbitrate disputes arising under the IRA. ¶18 The same is true in the present case. The Custodial Trust Account was opened in Moran’s name. Father was named custodian and trustee of the account. The subsequent Joint Investment Account was opened jointly in Moran and Father’s name. As in Wilkinson, the parties and accounts are clearly different. ¶19 Furthermore, although the language contained in the arbitration agreements is broad and purports to cover all of Moran’s accounts with Edward Jones, it does not contain language indicating an intent by the parties to retroactively modify Moran’s previous, closed Custodial Trust Account. Without specific language indicating such an intent by the parties, the Court will not retroactively apply the arbitration agreements to Moran’s Custodial Trust Account. The trial court’s September 29, 2009, order granting Edward Jones’ motion to compel was therefore in error and is reversed. Based on our resolution of this issue, we need not address Moran’s remaining propositions of error. ¶20 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. GABBARD, P.J., concurs; RAPP, J., not participating. Vol. 81 — No. 11 — 4/17/2010

2010 OK CIV APP 35 ACES A/C SUPPLY NORTH, a Texas Corporation, Plaintiff/Appellant, vs. SECURITY BANK, an Oklahoma Banking Corporation, Defendant/Appellee, And TERRELL HEATING & AIR CONDITIONING, INC., an Oklahoma Corporation, and BRENT TERRELL, Defendants. Case No. 107,346. January 13, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE P. THOMAS THORNBRUGH, TRIAL JUDGE AFFIRMED Joe M. Fears, Richard D. White, Jr., BARBER & BARTZ, Tulsa, Oklahoma, for Plaintiff/ Appellant, Barry G. Reynolds, Kelley G. Loud, TITUS HILLIS REYNOLDS LOVE, DICKMAN & MCCALMON, Tulsa, Oklahoma, for Defendant/Appellee. KEITH RAPP, JUDGE: ¶1 The trial court plaintiff, Aces A/C Supply North (Aces), appeals an order granting summary judgment to the defendant, Security Bank (Security). The trial court entered an order pursuant to 12 O.S.2001, § 994. This appeal proceeds under the accelerated appeal provisions of Okla. Sup. Ct. R. 1.36, 12 O.S. Supp. 2009, ch. 15, app. BACKGROUND ¶2 The defendant, Terrell Heating & Air Conditioning, Inc. (THAC), is owned and operated by the defendant, Brent Terrell (Terrell). THAC is an air conditioning subcontractor. THAC purchased supplies and equipment from Aces on account. ¶3 THAC had a subcontract for a project (Gemstar Project) where Gemstar Construction and Development, Inc. (Gemstar) served as the project construction manager. THAC purchased from Aces the supplies and equipment for the Gemstar Project. THAC had other projects and an account balance with Aces for purchases unrelated to the Gemstar Project. ¶4 In order to be paid, THAC had to submit to Gemstar documented applications for payment. In addition, Aces and THAC had an

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agreement whereby such payments would be made by joint checks, payable to Aces and THAC.1 ¶5 This case involves three of those joint payments. THAC submitted three payment applications: one for $92,753.25, one for $79,478.15, and one for $33,445.44. Gemstar made these three payments, totaling $334,454.44, between April 5, 2007 and May 25, 2007, by check jointly payable to THAC and Aces. ¶6 These payments exceeded the total of the underlying invoices from Aces included in the payment application document. Thus, Terrell and his bookkeeper discussed depositing the first check into THAC’s operating account at Security and using the excess funds for another obligation. ¶7 The three Gemstar payments were deposited into THAC’s operating account at Security and without an authorized endorsement by Aces.2 Security credited the account and forwarded the checks to Gemstar’s bank, which paid the checks. Aces learned of these facts when Gemstar requested a lien release. ¶8 THAC subsequently sent checks to Aces from its operating account. These checks identified the invoices being paid, which were the invoices attributed to the Gemstar Project and were the ones included in the three Gemstar payments involved here. ¶9 In its summary judgment motion, Security states that from April 2007 to October 2007, THAC paid Aces at least $430,000.00 from its operating account. Security further states as a fact that “at times” THAC directed the application of payments to specific invoices as reflected on the checks. On June 15, 2007, THAC paid $59,178.10, with direction to apply the payment to a specific Gemstar Project invoice.3 Other than the $59,178.10 payment, Security’s motion for summary judgment does not itemize and correlate THAC’s payments so as to compare them with the three checks in question and the Aces’s invoices associated with those three payments. Security argues that the $430,000.00 paid by THAC, along with the $59,178.10 payment, covers the three checks. ¶10 Thus, Security maintains that Aces received all that it was due from the three checks in question. Security argues that it is exonerated from all liability to Aces for receiving and processing the three checks without an authorized endorsement because of these THAC payments. 1050

¶11 Aces does not dispute that THAC paid it at least $430,000.00, or that THAC directed application in some cases. However, Aces states that not all of the $430,000.00 paid involved the Gemstar Project because there were other projects. Aces also states that the directions were ineffective for two reasons.4 ¶12 First, Aces asserts that its policy was to apply all payments to the oldest balance first, irrespective of THAC’s designation of payment. Aces’s representative testified that this policy was communicated to THAC.5 Second, Aces asserts that the directions were unclear or directed payment to invoices already paid or credited. ¶13 Next, Aces states that THAC’s balance due to Aces exceeds the three Gemstar checks after credit for all of THAC’s payments. Aces argues that Security is therefore liable because Aces has not been paid the money from the checks. Alternatively, Aces argues that it was damaged by Security’s acceptance of the checks because, otherwise, Aces would have received the entire proceeds, thereby reducing THAC’s balance owed by the amount that the three Gemstar payments exceeded the total of the specific Aces’s invoices attributed to those payments.6 ¶14 The trial court agreed with Security, finding that THAC’s payments totally replaced the amount owed Aces from the three misdirected checks. After making extensive findings, the trial court ruled that Aces had received the amount it was due from the Gemstar checks, notwithstanding the diversion of the checks, and this fact relieved Security of liability. The trial court further found that Aces had not shown either that THAC would have paid the excess funds to its balance or that THAC’s balance would have been reduced had the Gemstar checks not been diverted. ¶15 The trial court granted summary judgment to Security. Aces appeals. STANDARD OF REVIEW ¶16 The appellate standard of review in summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 2, 920 P.2d 122, 124. The evidentiary materials will be examined to determine what facts are material and whether there is a substantial controversy as to one material fact. Sperling v. Marler, 1998 OK 81, 963 P.2d 577; Malson v. Palmer Broadcasting Group, 1997 OK 42, 936 P.2d 940. Summary judgment is proper only if the record reveals uncontroverted material facts failing to support any legitimate inference in favor of the nonmoving

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party. N.C. Corff Partnership, Ltd. v. OXY USA, Inc., 1996 OK CIV APP 92, 929 P.2d 288. ¶17 One who defends against a claim and who does not bear the burden of proof is not required to negate the plaintiff’s claims or theories in order to prevail on motion for summary judgment. When, a defendant moves for summary judgment without relying upon an affirmative defense, the defendant must show that: 1) no substantial factual controversy exists as to at least one fact essential to plaintiff’s theory of the cause of action; and, 2) the fact is in defendant’s favor. Once a defendant has introduced evidentiary materials to establish these points, the plaintiff then has the burden of showing that evidence is available which justifies a trial of the issue. Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 8, 977 P.2d 1040, 1044; Stephens v. Yamaha Motor Co., Ltd. Japan, 1981 OK 42, ¶ 11, 627 P.2d 439, 441; Runyon v. Reid, 1973 OK 25, ¶¶ 12-13, 510 P.2d 943, 946. On the other hand, when the defendant relies upon an affirmative defense then the defendant, as the party with the burden of proof, must meet the same standards as a plaintiff movant. Akin, 1998 OK 102 at ¶ 9, 977 P.2d at 1044. ANALYSIS AND REVIEW ¶18 A bank avoids liability for honoring a check with an unauthorized endorsement if the bank can prove that the intended payee received the proceeds of the check. O’Petro Energy Corp. v. Canadian St. Bank., 1992 OK 126, ¶ 21, 837 P.2d 1391, 1395; Clemens v. First Nat’l Bank of Berryville, 692 S.W.2d 222, 225 (Ark. 1985); Coplin v. Maryland Trust Co., 159 A.2d 356, 357-58 (Md. 1960); Stella v. Dean Witter Reynolds, Inc., 574 A.2d 468, 475 (N.J. Super. Ct. App. Div. 1990); see American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 797 (Ala. 2002) (Lyons, J., concurring); Hays v. Friendly Nat’l Bank, 1979 OK CIV APP 9, 591 P.2d 1274 (no liability for honoring non-indorsed instrument absent harm.)7 ¶19 Here, it is undisputed that THAC paid, through directed payments, sums equal to or in excess of the Aces’s invoices attributed to the three Gemstar checks. Security’s summary judgment singles out the element of damages and submits evidentiary materials to show that Aces cannot prove damages because it received its money. The burden then shifted to Aces to show that a question of fact exists and it failed to meet that burden on this point. Thus, the trial court correctly entered summary judgment. Vol. 81 — No. 11 — 4/17/2010

¶20 Also, the trial court correctly awarded summary judgment against Aces’s claim of damages premised upon a reduction of THAC’s balance had the three checks been paid over. As the trial court observed, Aces has not demonstrated the fact of a reduction of the account balance. For summary judgment purposes, the fact that the total of the three Gemstar checks might exceed the Aces’s associated invoices may be inferred from THAC’s motivation for diverting the checks.8 ¶21 However, this does not suffice because Aces has not demonstrated any right to receive the excess proceeds. Although there is a rebuttable presumption that the measure of liability is the amount of the checks, Aces’s recovery may not exceed the amount of its interest in the checks. 12A O.S.2001, § 3-420(b); Saxon Mortgage Services v. Harrison, 973 A.2d 841(Md. Ct. Spec. App. 2009); Stapleton v. First Sec. Bank, 675 P.2d 83 (Mont. 1983); see Uniform Commercial Code Comment (1), 12A O.S.2001, § 3-420. All that Aces has shown is that it had a legal interest, or right, in the three checks to the extent that they covered applicable Aces’s invoices for which sums have been remitted. ¶22 Therefore, the judgment of the trial court granting summary judgment to Security National Bank is affirmed. ¶23 AFFIRMED. GABBARD, P.J., WISEMAN, V.C.J. (sitting by designation), concur. 1. “The joint check rule reflects a widespread practice in the construction industry that allows owners and general contractors to protect themselves from lien foreclosure by materialmen whom subcontractors have failed to pay. The issuance of a check payable jointly to the subcontractor and the materialman enables the materialman to withhold endorsement until he is assured that the subcontractor’s account with him is or will be satisfied from the proceeds of the check. This may be accomplished in various ways, including the use of gentlemen’s agreements or more formal escrow arrangements. The practice of issuing joint checks protects both the owner/general contractor and the materialman, because each has an interest in ensuring that the materialman is paid.” Brown Wholesale Elec. Co. v. Beztak of Scottsdale, Inc., 788 P.2d 73, 76 (Ariz. 1990). 2. It is undisputed that the Aces’s endorsement was not an authorized signature. Seven other checks were properly endorsed and Aces received those checks. The record does not show whether any or all of those seven checks were for an amount over that which was due to Aces for the invoices covered by these payments. There is a dispute between THAC and Aces as to the balance THAC owes Aces. The summary judgment given to Security did not resolve that separate dispute, but the trial court authorized this appeal. 3. Record, Tab 6, p. 4. 4. Record, Tab 7, p. 4. 5. The written credit terms between THAC and Aces does not include this policy. Aces did not show that this policy had been communicated to Security or Gemstar. 6. Aces did not demonstrate that it had perfected any lien on the excess proceeds or had an assignment of such excess proceeds. The joint check agreement does not reference any lien or assignment. 7. The trial court cited additional authorities. This Court perceives no legal distinction between the facts where, as here, the issue is

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between a payee and an intermediate bank versus the issue being between the drawer and its bank. When the intended payee receives the money it is due, albeit from another source, there is no damage or harm attributed to honoring the instrument without an authorized endorsement. 8. Terrell and his bookkeeper discussed using the excess to pay other obligations.

2010 OK CIV APP 37 TRADERS INSURANCE COMPANY, Plaintiff/Appellant, vs. JULIE JOHNSON and BILLY JOHNSON, Defendants/ Appellees. Case No. 107,812. March 5, 2010 APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA HONORABLE TOM A. LUCAS, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS C. Scott Loftis, McATEE & WOODS, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant, Steven T. Mortimer, George J. Kanelopoulos, Jr., KANELOPOULOS LAW FIRM, P.C., Oklahoma City, Oklahoma, for Defendants/Appellees. DOUG GABBARD II, PRESIDING JUDGE: ¶1 In this accelerated appeal, Plaintiff/Appellant, Traders Insurance Company (Traders), seeks review of a trial court order denying its motion for summary judgment and granting summary judgment to Defendants/Appellees, Julie Johnson and Billy Johnson (the Johnsons). We affirm in part, reverse in part, and remand for further proceedings. BACKGROUND ¶2 In August 2006, the Johnsons purchased a policy of automobile liability insurance with Traders. They purchased the insurance through Aballtime, L.L.C., a duly authorized insurance agency and agent of Traders. At the time of this purchase, both Johnsons signed an uninsured/ underinsured motorist (UM) coverage form rejecting UM coverage. The Johnsons’ daughter, Amber Brown, was a named insured on the policy. ¶3 On June 25, 2008, the Johnsons asked Amber to take their premium payment to Aballtime and add a new vehicle to their policy. Amber presented the payment to Aballtime, and Aballtime accepted it on behalf of Traders. However, because the Johnsons sought cover1052

age for a new vehicle that was not a replacement vehicle, Oklahoma law required Traders to issue a new policy, instead of a renewal policy. Aballtime prepared the policy, listed the Johnsons as applicants and named insureds, and requested that Amber sign the policy and a new UM form rejecting UM coverage. Amber did so. ¶4 On July 10, 2008, Julie Johnson allegedly sustained injuries in a motor vehicle accident while driving a vehicle which was covered by the policy. The other motorist was uninsured. Traders denied coverage based upon Amber’s written rejection of UM coverage. On November 21, 2008, Traders filed a petition for declaratory judgment requesting that the trial court determine that the Johnsons had no UM coverage because their daughter had rejected same. Ultimately, Traders filed a motion for summary judgment, and the Johnsons filed a response. ¶5 Based upon the pleadings and evidentiary material, the trial court found: (1) Neither of the Johnsons signed the rejection of UM coverage; (2) Amber Brown was not a named insured or applicant on the policy; (3) Amber Brown “did not have the authority to reject UM coverage on behalf of” the Johnsons “nor any named insured pursuant to 36 O.S. § 3636;” and (4) Therefore, the Johnsons were covered under the policy. ¶6 Based upon these findings, the trial court denied Traders’ motion and granted summary judgment to the Johnsons. Traders now appeals. STANDARD OF REVIEW ¶7 Summary judgments may only be granted where there is no dispute as to any material fact. Indiana Nat’l Bank v. State Dep’t of Human Servs., 1993 OK 101, ¶ 10, 857 P.2d 53, 59. We review summary judgment orders de novo, that is, without deference. Young v. Macy, 2001 OK 4, ¶ 9, 21 P.3d 44, 47. ANALYSIS ¶8 Section 3636 provides that no policy of insurance may be sold in Oklahoma unless it includes UM coverage. Further: G. A named insured or applicant shall have the right to reject uninsured motorist cov-

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erage in writing, and except that unless a named insured or applicant requests such coverage in writing, such coverage need not be provided in or supplemental to any renewal, reinstatement, substitute, amended or replacement policy where a named insured or applicant had rejected the coverage in connection with a policy previously issued to him by the same insurer. H. Notwithstanding the provisions of this section, the following are the only instances in which a new form affecting uninsured motorist coverage shall be required: 1. When an insurer is notified of a change in or an additional named insured; 2. When there is an additional vehicle that is not a replacement vehicle; provided, a new form shall not be required for the addition, substitution or deletion of a vehicle from a commercial automobile liability policy; or 3. When the amount of bodily injury liability coverage is amended. Provided, any change in premium alone shall not require the issuance of a new form. After selection of limits, rejection, or exercise of the option not to purchase uninsured motorist coverage by a named insured or applicant for insurance, the insurer shall not be required to notify any insured in any renewal, reinstatement, substitute, amended or replacement policy as to the availability of such uninsured motorist coverage or such optional limits. Such selection, rejection, or exercise of the option not to purchase uninsured motorist coverage by a named insured or an applicant shall be valid for all insureds under the policy and shall continue until a named insured requests in writing that the uninsured motorist coverage be added to an existing or future policy of insurance. (Emphasis added).1 Because the Johnsons added a vehicle that was not a replacement vehicle to the policy, a new policy form and new UM rejection form were required. ¶9 Prior to 1990, § 3636 did not allow anyone except the named insured to reject UM coverage. See Plaster v. State Farm Mut. Auto. Ins. Co., Inc., 1989 OK 167, 791 P.2d 813. However, in that year, the Legislature amended the statuVol. 81 — No. 11 — 4/17/2010

tory language to provide that either a named insured or an applicant could reject UM coverage for all named insureds. Here, Traders asserts that Amber Brown “signed a UM rejection form as an applicant and proposed insured of the applicable insurance policy.” ¶10 The relevant Automobile Insurance Application2 begins as follows: Applicant Information: JULIE JOHNSON ******* NORMAN, OKLAHOMA 73071 Home Phone: ****** Mobile Phone: Work Phone: Co-Applicant: BILLY JOHNSON Secondary Applicant: Amber Brown is listed in only one place on the Application — under the heading of “People Who Reside or Live With You; And People Who Drive Your Cars; And People You Intend To Exclude From Coverage.” ¶11 Although Traders asserts that Amber Brown was both a “named insured (applicant)” and “proposed insured,” because she signed the policy and UM form in that manner, she was neither.3 The policy specifically defined a “named insured” as: [O]nly the person specifically listed in the Declarations as the named insured — but does not include any other person (including but not limited to persons listed in the Declarations or in the application for coverage) that may be described as a driver, operator, resident, spouse, or excluded driver.4 The policy uses the terms “named insured” and “applicant” interchangeably. The face of the policy indicates that the applicant and coapplicant — i.e., the proposed and named insureds — were the Johnsons, not Amber Brown. Thus, the trial court correctly concluded that Traders was required by § 3636 to obtain the Johnsons’ signatures on the UM form, that it did not do so, and that Traders’ request for summary judgment should be denied. ¶12 The Johnsons did not request summary judgment in this case, candidly admitting in their response brief that “reasonable minds could come to differing conclusions on these material issues of fact . . . .” We agree with this assessment. Attached to Traders’ motion for

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summary judgment is an affidavit from Aballtime agent Chris Kane stating that “Amber Brown was the family member that primarily dealt with bringing in the insurance payments and signing Applications on behalf of the Johnson Family.” The Johnsons do not completely deny this allegation, but state that Mr. Johnson usually signed the application, and that while Amber was sent to Aballtime to deliver the premium payment and add the new vehicle as instructed by her mother, she did not have any authority to sign any documents. ¶13 Generally, an agent is one who is authorized to act for another. Black’s Law Dictionary 64 (7th ed. 1999). A person may have apparent authority to act as another’s agent when there is: (1) conduct of the principal which would reasonably lead the third party to believe that the agent was authorized to act on the principal’s behalf; (2) reliance thereon by the third party; and (3) change of position by the third party to his detriment. See Sparks Bros. Drilling Co. v. Texas Moran Exploration Co., 1991 OK 129, ¶ 17, 829 P.2d 951, 954. The existence of actual authority between principal and agent is “not a prerequisite to establishing apparent authority.” Stephens v. Yamaha Motor Co., Ltd., 1981 OK 42, ¶ 8, 627 P.2d 439, 441. However, when it is absent, apparent authority usually results “from a manifestation by the principal to a third person that another is his agent.” Id. In other words, the apparent power of an agent must be determined by the acts of the principal, and not by the acts of the agent. In determining whether an agent has apparent authority, the prior course of conduct and statements of the principal may be examined. Generally, agency is a question of fact which must be determined by the trier of fact. A-Plus Janitorial & Carpet Cleaning v. Employers’ Workers Comp. Ass’n, 1997 OK 37, ¶ 32, 936 P.2d 916, 930. ¶14 If the Johnsons manifested to Traders that Amber had the implied or apparent authority to sign the application and rejection on their behalf through their prior dealings, statements, or conduct, then she had the apparent authority to reject UM coverage. See, for example, Freeman v. Bodyworks, Inc., 2008 OK CIV APP 114, 213 P.3d 838 (where a father claimed that he only gave his daughter authority to enter into a contract, and did not give her authority to sign one with an arbitration clause). We find nothing in the statutory language that prohibits an agent with actual or apparent authority 1054

from rejecting UM coverage on behalf of his or her principal. ¶15 Because the pleadings raise a substantial dispute as to whether Amber Brown had the apparent authority to execute the application and sign the UM rejection, summary judgment should not have been granted to the Johnsons.5 CONCLUSION ¶16 For the reasons set forth above, the trial court’s denial of summary judgment in favor of Traders is affirmed, and its grant of summary judgment to the Johnsons is reversed. This case is remanded for further proceedings. ¶17 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. GOODMAN, J., concurs, and RAPP, J., not participating. 1. We have quoted the version of the statute in place at the time of the events of this lawsuit. 2. The Application was attached to Traders’ motion for summary judgment. 3. Traders has not alternatively asserted that the policy was invalid because Amber Brown signed it. In this regard, we merely note that under Amber Brown’s signature on the policy as the named insured, Traders’ agent Aballtime made the following warranty: The undersigned hereby warrants and certifies that they have asked all of the questions contained in this application, exactly as they are presented and the statements contained herein are the applicant’s statements and are correct to his/her knowledge; that this application was completed and then signed by the named insured (applicant) in his/her presence; that a completed copy has been given to the insured; and that the undersigned will retain this original signed copy hereof. 4. This definition is somewhat different than the way the term is generally used in § 3636. The Supreme Court has held that the term “named insured” as used in § 3636 usually refers to “the person named as insured.” See Moon v. Guarantee Ins. Co., 1988 OK 85, ¶ 9, 764 P.2d 1331, 1335. 5. Although the policy in question was for a period of six months, ratification is not in question because the accident occurred only a few days after the policy’s down payment was made and before any monthly premium was paid.

2010 OK CIV APP 28 BAYS EXPLORATION, INC., Plaintiff/ Appellant, vs. DOUGLAS JONES, Defendant/Appellee. Case No. 106,475. November 13, 2009 APPEAL FROM THE DISTRICT COURT OF GARVIN COUNTY, OKLAHOMA HONORABLE JOHN A. BLAKE, TRIAL JUDGE AFFIRMED Alan Agee, GARVIN, AGEE, CARLTON & MASHBURN, P.C., Pauls Valley, Oklahoma, for Plaintiff /Appellant,

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Kenneth R. Johnston, Wes Johnston, JOHNSTON & JOHNSTON, Chickasha, Oklahoma, for Defendant/Appellee. CAROL M. HANSEN, PRESIDING JUDGE: ¶1 In this action initiated under the Surface Damages Act, 52 O.S. 2001 §§318.2 et seq. (the Act), Appellant, Bays Exploration, Inc. (Bays), appeals from the trial court’s Order Granting Attorney’s Fees and Costs to Defendant Douglas Jones (Jones). We hold the relief requested by Bays is precluded by the law of the case doctrine and affirm. ¶2 Jones is the surface owner of 140 acres of farmland in Garvin County, Oklahoma. In 2001, Bays decided it would drill an oil and gas well on Jones’s land. When Bays and Jones failed to reach an agreement on what Bays would pay for damage to the land, Bays filed this action under the Act. The purposes of the Act are to balance the conflicting interests of the mineral and surface owners, and to promote the prompt payment of compensation to a surface owner whose land is damaged by a mineral interest holder for oil and gas exploration. Ward Petroleum Corp. v. Stewart, 2003 OK 11, 64 P.3d 1113. Bays’s well was drilled on Jones’s land and was completed as a producing well. ¶3 Appraisers were appointed pursuant to the Act to evaluate damage to Jones’s land. The appraisers assessed damages at $12,000.00. Jones was dissatisfied with that amount and demanded a jury trial on damages under §318.5(F)1 of the Act. After a trial which lasted a week, the jury returned a verdict in favor of Jones in the amount of $40,000.00. The trial court entered judgment in the amount of the jury’s verdict. Bays appealed the $40,000.00 judgment against it. Jones, citing as authority §318.5(F) and TXO Production Corp. v. Stanton, 1992 OK CIV APP 101, 847 P.2d 821, moved for an award of costs and attorney fees. The trial court denied Jones’s motion for attorney fees and Jones filed a counter-appeal. ¶4 Bays’s appeal and Jones’s counter-appeal were assigned to the Court of Civil Appeals. In Bays Exploration, Inc. v. Jones, 2007 OK CIV APP 111, 172 P.3d 217 (Jones I), the Court of Civil Appeals affirmed the judgment against Bays. The Court, however, reversed the trial court on its denial of costs and attorney fees and remanded that question to the trial court “with directions to conduct proceedings to determine the costs and reasonable attorney fees to be awardVol. 81 — No. 11 — 4/17/2010

ed” Jones. The Court of Civil Appeals denied Bays’s motion for rehearing and granted Jones’s request for appellate attorney fees, also to be determined by the trial court. The Supreme Court denied Bays’s petition for certiorari and the appeal became final after mandate was issued on November 15, 2007. ¶5 On remand in February 2008, the trial court heard the parties’ evidence and arguments on attorney fees. In its Order filed on October 1, 2008, the trial court noted the purpose of that hearing was “to determine the amount of attorney fees and costs to be awarded to [Jones] in accordance with the decision” in Jones I. That determination included both trial and appellate costs and attorney fees. The trial court’s comprehensive order included a statement of the proceedings; detailed findings of fact in relation to the legal services contract, fee structure and counsel’s billing hours; and conclusions of law with citations of authority to support its award. The trial court awarded Jones $116,787.50 attorney fees, $3,419.95 in deposition costs and $1,358.55 in others costs, for a total award of $121,556.00. Bays has appealed from that award. ¶6 Here on appeal, Bays has asserted three propositions supporting its request for relief — [1] “Attorney Fees are not Awardable in This Case,” [2] “This Court is Not Bound by COCA’s Decision in Jones I on Attorney Fees and Costs,” and [3] “While the Award of Attorney Fees and Costs under 52 O.S. §318.5 is Mandatory, Their Award under 66 O.S. §55(D) is only Discretionary.” Normally, we review attorney fee awards for trial court abuse of discretion, Southwestern Bell Telephone Co. v. Parker Pest Control, Inc., 1987 OK 16, 737 P.2d 1186. Here, however, the essence of each of Bays’ contentions is that the trial court erred, as a matter of law, in awarding attorney fees and costs. On questions of law we exercise de novo review. Ibarra v. Hitch Farms, 2002 OK 41, 48 P.3d 802. Under this standard, we have plenary, independent and non-deferential authority to address legal issues. American Airlines v. Hervey, 2001 OK 74, 33 P.3d 47. ¶7 In contending attorney fees may not be awarded in this case, Bays’s contention is two pronged. First, Bays argues §318.5(F) does not authorize attorney fees and costs under the undisputed facts. Secondly, Bays argues Jones’s motion for attorney fees and costs was fatally defective because it did not include the requisite evidentiary material mandated by 12 O.S.

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2001 §696.4. Bays’s first argument was presented to and rejected by the Court of Civil Appeals in Jones I. The second argument was not asserted in Jones I. For different reasons, we cannot consider the merits of either argument. ¶8 As we have noted, Jones relied on the authority in TXO Production Corp. v. Stanton, 847 P.2d at 822, to support his claim for attorney fees in the trial court. In Stanton, the Court of Civil Appeals found a right to attorney fees and costs under §318.5(F), even where a surface owner made the only request for a jury trial. In doing so, the Stanton Court relied on the authority found in 66 O.S. 1991 §55(D), part of the railroad condemnation procedures which the Legislature made the framework for surfaces damages actions in §318.5(F).2 Section §55(D) allows attorney fees, inter alia, where a property owner receives a judgment at least 10% in excess of the commissioners’ award, even if it is the property owner who demands a jury trial. ¶9 Bays’s only argument to the trial court in opposition to Jones’s motion for attorney fees and costs in Jones I was restricted to the inapplicability of §318.5(F) and §55(D), and the examination of various appellate opinions relating to those sections, particularly TXO Production Corp. v. Stanton, 847 P.2d at 822. Similarly, the Jones I Court set forth that “both parties extensively debate the merits of the Stanton decision.” There is nothing to indicate Bays raised the issue there of statutory noncompliance by Jones in submitting his motion for attorney fees and costs, under 12 O.S. 2001 §696.4 or any other section. ¶10 The question of Jones’s right to attorney fees and costs was decided by the Court in Jones I and that determination was final upon mandate. Cox v. Kansas City Life Ins. Co., 1997 OK 122, 957 P.2d 1181. By failing to raise the §696.4 issue before either the trial court or Court of Civil Appeals in Jones I, Bays failed to preserve it for consideration upon remand. If Jones’s motion for attorney fees and costs were statutorily deficient, it would have been deficient when first presented and should have been contested on that basis before the final determination of Jones’s rights. Having failed to do so, Bays is precluded from raising it here. To hold otherwise would allow litigants to attack an appellate decision on a theory which was not before the appellate court when it reached that decision. 1056

¶11 The question which was before the Jones I Court was whether Jones could recover attorney fees and costs under the holding in Stanton incorporating §55(D) into §318.5(F). The Jones I Court held Jones should be awarded attorney fees and costs consistent with Stanton, and the trial court made its award as it was obligated to do upon remand. Hurst v. Brown, 1954 OK 25, 266 P.2d 438 (When a mandate is issued, the trial court has the duty to comply with its terms.) Bays, however, argues at great length that this case comes within exceptions to the rule that an appellate decision which is final after mandate becomes “the law of the case.” ¶12 In addressing the law of the case doctrine, the Supreme Court stated: Determinations made on a prior appeal of a cause are res judicata, and the decision of the appellate court on an issue of law becomes the law of the case once the decision is final and unreversed, in all subsequent stages. It is immaterial whether the final decision is made by the Court of Civil Appeals or this Court. When an issue has been presented to the Court of Civil Appeals, and a decision is reached on that issue, the first determination becomes conclusive and cannot be re-examined once it is final. The sole remedy available from an erroneous decision of that Court is the writ of certiorari. (Citations omitted.) Bierman v. Aramark Refreshment Services, Inc., 2008 OK 29, 198 P.3d 877. ¶13 The Bierman Court did recognize an exception to the law of the case doctrine where “the prior decision is palpably erroneous and this Court is convinced that failure to reverse it will result in a gross or manifest injustice.” (Emphasis added). We emphasize the Supreme Court’s holding the exception would be applied when it made the appropriate determinations. We have not been made aware of any case in which the Court of Civil Appeals has applied such an exception to the law of the case doctrine. In fact, it is our view we are expressly precluded from doing so. ¶14 It is axiomatic the Court of Civil Appeals cannot overrule an opinion of the Oklahoma Supreme Court and we are thus bound by its previous decisions. Williams v. Independent School District # 7 of Harrah, 1994 OK 87, 881 P.2d 760, Wimberly v. Buford, 1983 OK 25, 660 P.2d 1050. We are also prevented by statute and rule from reexamining prior decisions of the

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Court of Civil Appeals. 20 O.S. 2001 §30.14 (COCA decisions, “when final, shall be neither appealable to the Supreme Court nor be subject to reexamination by another division of the Court of Civil Appeals .. .”); Rule 1.171, Oklahoma Supreme Court Rules, 12 O.S 2001, App. 1 (Adopts statutory language from 20 O.S. 2001 §30.14). See also, McMinn v. City of Oklahoma City, 1997 OK 154, 952 P.2d 517 (Division 1 was bound by the decision reached in the earlier 1991 opinion by Division 2). ¶15 We are instructed by Stickney v. Kansas City Life Ins. Co., 2006 OK CIV APP 146, 149 P.3d 1048, where the Court of Civil Appeals reached the same conclusion we have today. There the appellant asked the Court of Civil Appeals “to deny law-of-the-case effect to the earlier Court of Civil Appeals opinion in Stickney I.” The Court held: Our review of the law on this subject leads us to conclude that the Supreme Court alone has the power to declare that the Court of Civil Appeals opinion in Stickney I should not be given law-of-the-case effect in a subsequent appeal. ¶16 The Stickney Court, quoting from In re Estate of Severns, 1982 OK 64, 650 P.2d 854, continued: The Supreme Court stated that law of the case “occupies a salutory position in appellate law when applied to the Supreme Court.” The Supreme Court further stated that observance of law of the case is “even more compelling” in cases “where the power of the appellate tribunal is exercised by an intermediate court of this state.” The Supreme Court stressed “[t]he remedy available from an erroneous decision in such instance [i.e. by an intermediate appellate tribunal] is the sole remedy of writ of certiorari.” (Citations omitted). ¶17 We hold we are bound to give law of the case effect to the Court of Civil Appeals decision in Jones I. The law of the case doctrine applies where the issues we are asked to consider are issues which [1] were actually presented in the prior appeal, [2] were specifically addressed in its prior opinion, and [3] were necessarily decided by the Court in the prior decision in order to reach its holding. Miller Dollarhide, P.C. v. Tal, 2006 OK 27, 174 P.3d 559, citing McMinn v. City of Oklahoma City. Vol. 81 — No. 11 — 4/17/2010

¶18 Bays’s only issue remaining properly before us is whether Jones was entitled to recover costs and attorney fees pursuant to §318.5(F), as that section was interpreted by the Court of Civil Appeals in Jones I. That issue was presented to the Court in Jones I, was specifically addressed by the Court, and was necessarily decided by the Court because that was the only theory presented to the Court in support of the award of attorney fees. In fact, as noted by Jones in his Answer Brief here, much of Bays’s Brief in Chief was “lifted virtually verbatim” from Bays’s Answer Brief in the previous appeal. We are compelled to give law of the case effect to the Court of Civil Appeals decision in Jones I and are thus precluding from granting Bays the relief requested. ¶19 The trial court’s order granting Jones attorney fees and costs is, accordingly, AFFIRMED. MITCHELL, C.J., and JOPLIN, J., concur. 1. Section 318.5(F) provides, in pertinent part: Either party may, within sixty (60) days after the filing of such [appraisers] report, file with the clerk a written demand for a trial by jury, in which case the amount of damages shall be assessed by a jury. The trial shall be conducted and judgment entered in the same manner as railroad condemnation actions tried in the court. .... If the party demanding the jury trial does not recover a more favorable verdict than the assessment award of the appraisers, all court costs including reasonable attorney fees shall be assessed against the party. 2. See, Note 1, supra.

2010 OK CIV APP 34 IN THE MATTER OF E.G., A DEPRIVED CHILD: DARLA GILES, Appellant, vs. THE STATE OF OKLAHOMA, Appellee. Case No. 107,343. March 5, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE RICHARD KIRBY, JUDGE VACATED AND REMANDED WITH INSTRUCTIONS Sherry J. Neal, Oklahoma City, Oklahoma, for Appellant, Jane A. Brown, Assistant District Attorney, Oklahoma City, Oklahoma, for Appellee. BAY MITCHELL, JUDGE: ¶1 Appellant Darla Giles (Mother) appeals an Order terminating her parental rights to her minor child, E.G. upon a finding that she failed to correct the conditions leading to the adjudication of the child’s deprived status pursuant to 10 O.S. 2001 §7006-1.1(A)(5).1 This Order was

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entered upon a unanimous jury verdict. Mother argues on appeal that the jury verdict is not supported by sufficient evidence of a failure to correct conditions (she claims she completed most of her service plan and that the trial court’s Order fails to specify the conditions she failed to correct). She also contends the state failed to present competent medical expert witness testimony regarding Mother’s mental deficiency. ¶2 A Petition was filed in October 20062 alleging Mother’s children to be deprived because they are destitute, homeless, or abandoned; do not have the proper parental care and guardianship; their home is unfit and unsafe for children; neglect, cruelty depravity on the part of their parents or the person who cares for them; failure to protect from physical abuse of Mother’s husband; Mother’s mental illness; and lack of adequate shelter. ¶3 On March 12, 2007, Mother stipulated to the deprived status of her three little girls (fiveyear-old A.J., four-year-old K.D., and one-yearold E.G.). A treatment plan was adopted in April 2007, which ordered Mother to enroll in and successfully complete parenting skills class, complete substance abuse evaluation and follow recommendations of the services provider, attend individual and family counseling, refrain from any physical or verbal altercations with her extended family members, obtain appropriate housing, complete psychological evaluation and follow all recommendations of the psychologist, enroll in a GED program to increase her employment options, secure a legal source of income that adequately takes care of her family’s financial needs, and cooperate with all worker visits from the Department of Human Services (DHS) and CASA. ¶4 Prior to trial, upon the recommendation of DHS, the court ordered custody of Mother’s two older daughters be transferred to their father, who resided in Arizona.3 Thus, her parental rights only as to the youngest child, E.G., were at issue at trial.4 The trial took place in June 2009 with evidence presented pertinent to Mother’s adherence to the treatment plan and correction of conditions. While the evidence demonstrated Mother’s completion of some of the plan requirements, i.e., completion of parenting skills classes, evidence also demonstrated her failure to correct some of the conditions, notably the condition that she maintain stability in her housing situation.5 Additionally, the evidence shows Mother was 1058

often late and missed numerous individual counseling sessions and that she had made little progress in counseling.6 ¶5 The record reflects the matter was initially scheduled for trial in December 2008, but was continued in accordance with the DHS permanency planning worker’s recommendation to give Mother additional time to correct the conditions that remained uncorrected (specifically she needed to maintain housing for at least six months and maintain employment). At the conclusion of evidence and upon instructions being given, the jury entered a verdict terminating Mother’s parental rights. ¶6 Section 7006-1.1(A)(5) (now renumbered as 10A Supp. 2009 §1-4-904(B)(5)) permits the termination of parental rights when a child has been adjudicated to be deprived, the parent failed to correct the condition(s) leading to the deprived adjudication, the parent has been given at least three (3) months to correct the condition(s), and termination of parental rights is in the best interests of the child. While the State bears the burden of proof by clear and convincing evidence of the elements for termination of parental rights, once they are shown, the burden shifts to the parent to demonstrate the conditions which led to the deprived adjudication have been corrected. In re M.C.M., 2008 OK CIV APP 29, ¶11, 180 P.3d 688, 690. In reviewing a termination order, the appellate court must canvass the record to determine whether the factual findings are supported by clear and convincing evidence. In re S.B.C., 2002 OK 83, ¶6-7, 64 P.3d 1080, 1082. Clear and convincing evidence is that measure of proof that “will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” Matter of C.G., 1981 OK 131, ¶17, n. 12, 637 P.2d 66, 71 (emphasis added). This standard balances the parents’ fundamental right with the State’s duty to protect children from harm. Id., ¶17, 637 P.2d at 70. ¶7 Mother argues the Order on appeal is fatally defective in that it lacks specificity as to its finding of the conditions she failed to correct. She specifically complains “[t]here was no clear indication [in the termination order] of what mother failed to correct.” Mother’s argument is unpersuasive because there is no Oklahoma Supreme Court precedent mandating such precise detail in Orders terminating parental rights for failure to correct conditions, particularly where the record clearly demonstrates

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that the parent was provided adequate notice of the conditions requiring correction throughout the adjudication and termination proceeding.7 Of course, due process requires sufficient notice to the parent of the specific conditions which the law requires to be changed. In re B.M.O., 1992 OK CIV APP 89, 838 P.2d 38. Here, the specific conditions were articulated in the treatment plan which was acknowledged and approved by Mother, court-approved and adopted by the court as the judicially ordered norms of conduct. It provides, inter alia, “Conditions that need to be corrected: Mr. and Mrs. Giles needs [sic] to obtain appropriate housing.” The housing condition was additionally reiterated in the Amended Petition, which was expressly referenced in the Order terminating parental rights. Thus, Mother cannot seriously claim she had no notice of the conditions for which she was charged with correcting, despite the lack of detail in the termination Order.

correct conditions under §7006-1.1(A)(5). Mother argues for the application of ¶13 apparently because of its additional statutory element requiring expert medical opinion that the parent’s mental illness or mental deficiency “will not substantially improve” before parental rights will be terminated. Mother’s argument fails because the State never sought to prove that Mother’s mental condition specifically constituted a cause of the child’s deprived status. In fact, the State’s brief includes the acknowledgment that Mother’s level of mental deficiency is not to the extent contemplated by the statute and therefore, is not the proper basis for termination. The State presented no expert medical opinion on the issue of mental illness because such was not the basis upon which termination was sought and medical expert opinion is not a statutory requirement where termination of parental rights is sought for failure to correct conditions.10

¶8 The evidence clearly demonstrates Mother had failed to secure suitable housing in correction of the express condition stated in the Amended Petition “[t]hat the MOTHER has not provided a safe, suitable, fit home for the children.” Although Mother insists that she has leased an apartment, her own testimony reveals that she does not live there regularly. While Mother explained she moves frequently to avoid conflict with her husband, a DHS permanency planning worker testified Mother’s instability is a learned behavior based upon her own childhood experience of growing up in 27 different states. The DHS worker testified, “[I]t’s unfortunate because I believe that [Mother] is caught in a cycle of repeating what she knows as being normal. She cannot maintain a place of employment, she cannot maintain a residence, there is continued family conflict.” Additionally, another DHS caseworker testified that even if Mother did have a home, she would still recommend termination of Mother’s parental rights because of her chaotic lifestyle.8 We find clear and convincing evidence that Mother failed to secure a home suitable for the child, and thus failed to correct conditions within the statutory time allowed.

¶10 Further, from the record presented, we discern that Mother neither objected to the jury instructions for termination based upon failure to correct conditions under 10 O.S.§70061.1(A)(5), nor does the record disclose that she requested a jury instruction for termination under §7006-1.1(A)(13), which “is fatal to review of any complaint beyond one for fundamental error, of which we discern none.” In re M.C.M., 2008 OK CIV APP 29, ¶22, 180 P.3d 688, 692 (citing 12 O.S. §578). ¶11 Although unraised, we note a fundamental deficiency in the Order, which requires correction. The Order fails to make any finding whatsoever regarding the best interests of the child. “Parental rights . . . may only be terminated or impaired upon a clear finding by the court after an evidentiary hearing that it is, in fact, in the best interests of the children to enter such an order.” Bingham v. Bingham, 1981 OK CIV APP 26, ¶13, 629 P.2d 1297, 1300. Given the lack of an express finding in the Order that termination of Mother’s parental rights was in the child’s best interests, the Order must be remanded to the trial court, not for a new trial, but with instructions for the trial court to enter a proper final order correcting this deficiency.

¶9 Mother’s second proposition of error is that the State failed to prove Mother’s mental illness by expert medical opinion. Mother concedes the State did not seek parental rights termination on the basis of her mental illness, but argues it should have done so pursuant to 10 O.S. §7006-1.1(A)(13)9 rather than for failure to

¶12 Our review of the record reveals that, while clear and convincing evidence supports the determination that Mother failed to correct the conditions which led to the deprived adjudication, the Order is absent a finding that termination of Mother’s parental rights is in the best interests of the child. Accordingly, the

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Order is VACATED AND REMANDED WITH INSTRUCTIONS TO CORRECT THE DEFICIENCY DESCRIBED HEREIN. BELL, V.C.J., concurs; JOPLIN, P.J., dissents. JOPLIN, P.J., dissenting: I would affirm the trial court’s order. 1. Title 10 O.S. §7006-1.1(A)(5) provides that parental rights may be terminated based on these four findings: a) the child has been adjudicated to be deprived, and b) such condition is caused by or contributed to by acts or omissions of the parent, and c) termination of parental rights is in the best interests of the child, and d) the parent has failed to show that the condition which led to the adjudication of a child deprived has been corrected although the parent has been given not less than the time specified by Section 7003-5.5 of this title to correct the condition. This statutory provision was renumbered as Title 10A §1-4-904(B)(5), effective May 21, 2009. 2. An Amended Petition, which reiterates the conditions leading to the children’s deprived status, was filed April 28, 2008. The Amended Petition is expressly referenced in the Order on appeal. 3. Although Mother testified that she consented to the custody transfer of the two older girls to their father in Arizona, the record reflects she contested it. 4. E.G.’s father consented to the termination of his parental rights in this matter. 5. Mother reported to DHS eight different residences since December 2007, including a three or four month stay at a battered women’s shelter. One of the residences did not have running water, another move was necessitated by fire, and another was caused by eviction. At the time of trial, she testified that although she was currently leasing her brother’s apartment, she does not stay there on a regular basis. She stayed at undisclosed locations to avoid her husband’s ongoing harassment and threats. 6. Mother admitted to being diagnosed in 2004 with post-traumatic stress disorder (PTSD) and depression. The record reflects that in 2005, Mother previously relinquished custody of her two older daughters to their maternal grandmother due to the PTSD. (Approximately one year later when Mother sought to re-gain custody of her older

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daughters, the maternal grandmother contested, a courthouse altercation ensued in October 2006, and the court referred the matter to DHS.). At trial, she admitted that she had attempted suicide in 2005, but insisted that her mental condition had since improved. She testified, “I don’t have really much issue with my PTSD.” 7. However, without citation to Oklahoma Supreme Court authority, three divisions of this Court have noted the deficiency of termination orders for failure to identify the specific statutory basis relied upon for termination. See In re L.S., 1990 OK CIV APP 94, 805 P.2d 120; In re E.M., 1999 OK CIV APP 32, 976 P.2d 1098; In re M.D.R., 2002 OK CIV APP 75, 50 P.3d 1160. The Order on appeal in this case contains citation to the applicable statutory authority and thus, survives scrutiny under these authorities. 8. The caseworker attributed Mother’s chaotic lifestyle to the “domestic violence relationship” she was in with her husband and “all the family members constantly fighting with each other.” 9. §7006-1.1(A)(13) provides for the termination of parental rights upon “[a] finding that all of the following exist: a. the child has been adjudicated deprived, and b. custody of the child has been placed outside the home of a natural or adoptive parent, guardian or extended family member, and c. the parent whose rights are sought to be terminated has a mental illness or mental deficiency, as defined by Section 6-201 of Title 43A of the Oklahoma Statutes, which renders the parent incapable of adequately and appropriately exercising parental rights, duties and responsibilities, and d. the continuation of parental rights would result in harm or threatened harm to the child, and e. the mental illness or mental deficiency of the parent is such that it will not respond to treatment, therapy or medication and, based upon competent medical opinion, the condition will not substantially improve, and f. termination of parental rights is in the best interests of the child. 10. Mother neither argues, nor does the evidence reflect that the conditions in need of correction were anything other than conditions within her ability to correct. Further, she presented no evidence to establish that her mental condition constituted the condition in need of correction or that the conditions such as her lack of permanent housing flowed directly from the mental condition itself. See In re M.C.M., 2008 OK CIV APP 29, ¶22-23, 180 P.3d 688, 692-93. While Mother clearly demonstrated her ability to correct conditions by completing some of the treatment plan requirements, she blames a variety of circumstances (rather than her mental condition) for her failure to correct other conditions.

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, March 24, 2010 F-2009-31 — Lewis William Roberson, Appellant, was tried by jury for the crimes of Assault and Battery with a Deadly Weapon, After Former Conviction of Two or More Felonies (Count 1) and Possession of a Firearm, After Former Conviction of a Felony (Count 3) in Case No. CF-2007-6844 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment thirty years imprisonment on Count 1 and eight years imprisonment on Count 3. The trial court sentenced accordingly and ordered the sentences to be served concurrently with each other, but consecutively to his sentences in CF2003-5145, CF-2003-5147, CF-2003-5144, and CF-2003-6180. From this judgment and sentence Lewis William Roberson has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs. Thursday, March 25, 2010 F-2008-1129 — Appellant, Clynton Dejuan Butts, was convicted of one (1) count of Possession of a Stolen Vehicle, in violation of 47 O.S.2001, § 4-103, and one (1) count of Assault and Battery Upon a Police Officer, in violation of 21 O.S.2001, § 649, both after two or more felony convictions, after a jury trial in the District court of Tulsa County Case No. CF-20076067. The jury sentenced Butts to fifty (50) years imprisonment and eight (8) years imprisonment respectively. The Honorable Clancy Smith, District Judge, imposed sentence accordingly and ordered that they be run concurrently. The trial court sentenced accordingly. From this judgment and sentence, Clynton Dejuan Butts has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., confirmed; A. Johnson, V.P.J., concurs in results; Lumpkin, J., concurs; Chapel, J., concurs in results. F-2009-236 — James Lee Copeland, Jr., Appellant, was convicted after a non-jury trial in Case No. CF-2008-197, in the District Court of Vol. 81 — No. 11 — 4/17/2010

Comanche County, of Attempted Robbery with a Dangerous Weapon. The trial court sentenced Appellant to fifteen years imprisonment with seven years suspended and a $1,000 fine. From this judgment and sentence James Lee Copeland, Jr. has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED. The district court is directed to correct the Judgment and Sentence by order nunc pro tunc to reflect the proper conviction of Attempted Robbery with a Dangerous Weapon and by striking the notation that “The defendant is to serve 85% of his sentence.” Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur; Lewis, J., Concur. Friday, March 26, 2010 F-2009-200 — Appellant Dwight Lowaine McGee was tried by jury and convicted of Possession of Controlled Drug with Intent to Distribute (Count III) and Acquiring Proceeds from Drug Activity (Count IV), both counts After Two or More Previous Convictions, Case No. CF-2008-898, in the District Court of Tulsa County. The jury recommended as punishment forty (40) years imprisonment in Count III and fifteen (15) years imprisonment and a $25,000.00 fine in Count IV. The trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this judgment and sentence that Appellant appeals. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur in result; Lewis, J., concur. F-2008-864 — Michael John Washburn, Appellant, was tried in a non-jury trial and found guilty of Shooting with Intent to Kill, After Former Conviction of Two or More Felonies, in Case No. CF-2007-144 in the District Court of Lincoln County. The Honorable Paul M. Vassar, who presided at trial, sentenced Washburn to twenty years imprisonment. From this judgment and sentence Michael John Washburn has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs.

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F-2008-297 — James Edward Montgomery, Appellant, was tried by jury for the crimes of Maiming, After Former Conviction of Two or More Felonies (Count 1), Misdemeanor Resisting an Officer (Count 3), and Misdemeanor Public Intoxication (Count 4) in Case No. CF2007-4506 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment sixty years imprisonment on Count 1, one year imprisonment on Count 3, and thirty days in jail on Count 4. The trial court sentenced accordingly. From this judgment and sentence James Edward Montgomery has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs in results. Monday, March 29, 2010 RE-2008-114 — Richard Dade Petty, Appellant, entered a guilty plea to a charge of Driving Under the Influence, After Former Conviction of a Felony, in Oklahoma County Case No. CF-2007-3647. Appellant was sentenced to five (5) years, all suspended, except for ten (10) weekends to be served at the Carter Correctional Center in Oklahoma City, Oklahoma. On January 23, 2008, Appellant’s suspended sentence was revoked, n part, and he was sentenced to three (3) years. From this judgment and sentence, Appellant appeals. The partial revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: Per Curiam; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lumpkin, J. concur; Lewis, J., concur in results. C-2009-680 — Darek Dustin Windsor, Petitioner, entered a blind plea of no contest to Assault and Battery with a Dangerous Weapon in Case No. CF-2008-306, before the Honorable Curtis L. DeLapp, District Judge, in Washington County. The court sentenced Petitioner to fifty years imprisonment, with the last ten years suspended. Petitioner filed written motions to withdraw his plea. At a hearing held, the district court denied the request. From this judgment and sentence Darek Dustin Windsor has perfected his appeal. The Petition for Writ of Certiorari is DENIED, and the Judgment and Sentence of the district court is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. 1062

F-2008-1022 — Darrell Allen Hess, Appellant, was tried by jury for the crime of Robbery with a Dangerous Weapon, After Former Conviction of Two or More Felonies in Case No. CF-20072646 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment thirty-three years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Darrell Allen Hess has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs in results; Lewis, J., concurs. F-2008-298 — Radford Maybery, Appellant, was tried in a bifurcated jury trial for the crimes of First Degree Murder (Count 1), Taking of a Debit Card (Count 2), and Identity Theft (Count 3) in Case No. CF-2007-1338 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment Life Imprisonment Without the Possibility of Parole on Count 1, and ten years imprisonment on each of Counts 2 and 3. The trial court sentenced accordingly, and ordered the sentences to be served consecutively. From this judgment and sentence Radford Maybery has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs. Tuesday, March 30, 2010 F-2008-1243 — Tonny Ray Olden, Jr., Appellant, was convicted by jury in Case No. CF-200882 in the District Court of Seminole County, of Domestic Assault and Battery by Strangulation (Counts I and V), Rape by Instrumentation, After Two Previous Convictions (Count IV), Assault and Battery with a Dangerous Weapon, After Two Previous Convictions (Count VI), and Kidnapping, After Two Previous Convictions (Count VII). The jury assessed punishment at three years imprisonment on each of Counts I and V, twenty years imprisonment on each of Counts IV, VI and VII. The trial court sentenced Appellant accordingly. The trial court ordered the sentences imposed on Counts I and IV be served concurrently with each and the sentences imposed on Counts V, VI and VII be served concurrently with each other. The Court ordered sentences imposed on Counts I and IV to run consecutive to those imposed on Counts V, VI and VII. From this judgment and sentence Tonny Ray Olden, Jr. has perfected his appeal. The

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Judgment and Sentence of the district court is AFFIRMED. The district court is directed to change the Judgment and Sentence by order nunc pro tunc to reflect that Appellant was convicted of Second Degree Rape by Instrumentation. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur in Results. F-2008-1093 — Marshall Branden Clark, Appellant, was tried by jury for the crimes of Kidnapping (Count I), Rape in the First Degree (Counts II and III), and Forcible Sodomy (Counts IV and V) in Case No. CF-2007-125, in the District Court of Okfuskee County. The jury returned a verdict of guilty and recommended as punishment ten (10) years imprisonment on Count I, two sentences of life imprisonment on Counts II and III, and two sentences of twenty (20) years imprisonment on Counts IV and V. The sentences on Counts II and III run concurrently, and the sentences in Counts I, IV and V run consecutively to one another and to the life sentences. The trial court sentenced accordingly. From this judgment and sentence Marshall Branden Clark has perfected his appeal. AFFIRMED. Opinion by: Chapel, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lumpkin, J. concur in results; Lewis, J., concur.

appeals the district court’s order and asks this Court to issue a Writ of Certiorari allowing him to withdraw his plea and proceed to trial or, alternatively, favorably modify his sentence. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs in results.

Wednesday, March 31, 2010

RE 2008-1064 — On October 26, 2007, Appellant, Christopher A. Thomas, pled guilty in Oklahoma County District Court Case No. CF2006-3658 to Unauthorized Use of a Vehicle. He was sentenced to five years with all except the first ninety days suspended, with rules and conditions of probation. The State filed an application to revoke Appellant’s suspended sentence on September 23, 2008, alleging Appellant committed the new crimes of shooting with intent to kill and possession of a firearm as alleged in Oklahoma County District Court Case No. CF-2008-4267. Following a revocation hearing October 30, 2008, the Honorable Twyla Mason Gray, District Judge, revoked Appellant’s suspended sentence in full. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

C-2009-134 — Allen Ronell Foster, Petitioner, entered a blind plea of guilty to the crimes of Robbery with a Dangerous Weapon (Counts 1 and 2), and Unlawful Possession of a Firearm (Count 3), all after former conviction of two or more felonies in Case No. CF-2002-3400 in the District Court of Oklahoma County. The Honorable Malcolm Savage accepted Foster’s plea and delayed sentencing pending completion of a pre-sentence investigation report. Prior to sentencing, Foster filed a Motion to Withdraw Plea of Guilty. On September 5, 2006, Foster was sentenced to 30 years imprisonment on each count with the sentences to be served concurrently. On December 8, 2006, Foster appeared on the Motion to Withdraw and advised the court that he wanted to obtain private counsel. The matter was continued twice, but for reasons not explained in the record, no further proceedings were conducted. On May 14, 2008, this Court granted Foster an appeal out of time and instructed Foster to refile his Motion to Withdraw Plea of Guilty, which he did on June 2, 2008. A hearing was held on October 31, 2008, and Foster’s motion was denied. Foster

RE 2009-0463 — Appellant, Phillip Lynn Williams, pled guilty in the District Court of Greer County December 2, 2004, Case No. CF-200490, to Count 1 — Assault and Battery Upon Police Officer, Count 2 — Escape from Arrest or Detention, Count 3 — Domestic AbuseAssault and Battery, and Count 4 — Public Intoxication. He was sentenced to twenty years on Count 1 with all suspended except the first five years and successful completion of Bill Johnson Work Camp while incarcerated, one year in the Greer County Jail on Counts 2 and 3 and thirty days in the Greer County Jail on Count 4. All counts were ordered to run concurrently. He was fined $500.00 on Count 1, $100.00 on Counts 2 and 3 and $50.00 on Count 4. The State filed a motion to revoke Appellant’s suspended sentence on February 24, 2009. Appellant stipulated to the allegations in the motion to revoke on April 2, 2009. Following a hearing May 7, 2009, the Honorable Richard B. Darby, District Judge, revoked seven years of Appellant’s suspended sentence with the balance of the fifteen years suspended with rules and conditions of probation. Appellant

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appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

son, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur in result. Wednesday, April 7, 2010

Monday, April 5, 2010

C-2009-529 — Petitioner, Terry Lee Gathers, entered a guilty plea to Count 1, manslaughter in the first degree, a violation of 21 O.S.2001, § 711; and Count 2, causing an accident resulting in great bodily injury while driving under the influence, a violation of 47 O.S.Supp.2004, § 11-904(B), both after former conviction of two or more felonies, in the District Court of Oklahoma County, Case No. CF-2008-944. The Honorable Twyla Mason Gray, District Judge, accepted the plea and sentenced Petitioner to thirty (30) years imprisonment in Count 1, and ten (10) years imprisonment in Count 2, concurrently with Count 1. Petitioner timely moved to withdraw his plea. Following an evidentiary hearing, the district court denied the motion to withdraw. From this judgment and sentence, Terry Lee Gathers has perfected his appeal. The Petition for the Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court of Oklahoma County is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs.

F-2009-386 — Alex Deshay Downing, Appellant, was tried by jury for the crime of First Degree Burglary, After Conviction of Two or More Felonies in Case No. CF-2008-403 in the District Court of Cleveland County. The jury returned a verdict of guilty and recommended as punishment twenty-five years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Alex Deshay Downing has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

F-2008-1172 — Appellant, Danny Curtis Lieb, was tried by jury and found guilty of murder in the first degree, a violation of 21 O.S.Supp.2006, § 701.7(A), in the District Court of Tulsa County, Case No. CF-2006-5620. The jury sentenced Appellant to life imprisonment. The Honorable Dana Kuehn, Associate District Judge, pronounced judgment and sentence accordingly. The trial court sentenced accordingly. From this judgment and sentence, Danny Curtis Lieb has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs.

Tuesday, April 6, 2010

F-2008-631 — Delbert Lenard Johnson, Appellant, was tried by jury in the District Court of Oklahoma County, Case Number CF-20026841, and found guilty of robbery in the first degree, in violation of 21 O.S.2001, §§ 791 and 797, after former conviction of two (2) or more felonies. The jury sentenced him to twenty (20) years imprisonment. The District Court, Hon. Ray C. Elliott, District Judge, pronounced judgment and sentence accordingly. From this judgment and sentence, Delbert Lenard Johnson has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. John-

Friday, April 2, 2010 F-2009-466 — Appellant Derrick Andre Fields was tried by jury and convicted of Shooting with Intent to Injure, Case No. CF-2007-410, in the District Court of Garvin County. The jury recommended as punishment nine (9) months in the county jail. The trial court initially sentenced Appellant to five (5) years in prison, all suspended. However, on the basis of an oral joint application for modification, the trial court vacated the five (5) year sentence and sentenced Appellant to six (6) months in the county jail, to be served the first weekend of each month. It is from this judgment and sentence that Appellant appeals. The Judgment is AFFIRMED. The Sentence is VACATED and the case is REMANDED to the District Court for RESENTENCING consistent with this opinion. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur in result.

M 2009-0420 — Following a jury trial April 21, 2009, Appellant, Jesse Thomas Obermiller, was found guilty in the District Court of Tulsa County, Case No. CM-2008-5095 of Domestic Assault and Battery. The Honorable Carlos Chappelle, Special Judge, sentenced Appellant in accordance with the jury’s verdict to nine months in the Tulsa County Jail and a fine of $2,000.00. Appellant was given credit for time served. He appeals from the Judgment and Sentence imposed. Judgment and Sentence AFFIRMED. Opinion by: Lumpkin, J.; C. John1064

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son, V.P.J., Concurs; Lumpkin, J., Concurs; Chapel, J., Dissents. F-2008-192 — Kimberle Maye Clark was charged by information in the District Court of Oklahoma County, Case No. CF-2008-30, with Count I, Aggravated Attempting to Elude a Police Officer in violation of 21 O.S.Supp.2001, § 540A(B) and Count II, Possession of Drug Paraphernalia, a misdemeanor, in violation of 63 O.S.Supp.2004, § 2-405. A jury trial was had before the Honorable Kenneth C. Watson. On December 3, 2008, Appellant was convicted on both counts and punishment was set at seven (7) years on Count I after finding that Appellant had two or more prior felony convictions and one (1) year on Count II. The court ordered the sentences to run concurrently and Appellant appeals. From this judgment and sentence, Kimberle Maye Clark was perfected her appeal. The Judgment and Sentence of the District Court shall be AFFIRMED. However, the case is REMANDED for the correction of the Judgment and Sentence to reflect that Appellant was convicted for a violation of 21 O.S.2001, § 540(A)B and 63 O.S.Supp 2004, § 2-405. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. F-2008-931 — Appellant, Oscar Patterson, III, was tried by jury and convicted of First Degree Malice Murder, in violation of 21 O.S.2001, § 701.7(C), in the District Court of Wagoner County, Case No. CF-2003-41, before the Honorable Darrell G. Shepherd, Associate District Judge. The State filed a bill of particulars in support of the death penalty, and the jury was instructed on two aggravating circumstances. After the sentencing stage, the jury chose a sentence of life imprisonment without the possibility of parole. Judge Shepherd sentenced Patterson in accordance with the jury verdict on October 16, 2008. From the Judgment and Sentence Patterson has perfected his appeal to this Court. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., concurs; A. Johnson, V.P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs. Thursday, April 8, 2010 C-2009-645 — Erick Wayne Thurman, Petitioner, entered a blind plea of guilty to the amended charge of Assault and Battery With a Deadly Weapon in Case No. CF-2008-1759, in the District Court of Tulsa County. Thurman was sentenced to twenty-five (25) years imprisonment and a fine of $500. On May 4, 2009, Thurman filed a motion to withdraw his guilty Vol. 81 — No. 11 — 4/17/2010

plea. That motion was denied in a hearing on June 3, 2009. From this judgment and sentence Erick Wayne Thurman has perfected his Petition for Writ of Certiorari. Petition of Writ of Certiorari is DENIED. Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. F-2008-1073 — Mathew Dustin Abrego, Appellant, was tried by jury for the crime of Second Degree Murder after two or more convictions in Case No. CF-2007-4036, in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment life imprisonment and a $10,000.00 fine. The trial court sentenced accordingly. From this judgment and sentence Mathew Dustin Abrego has perfected his appeal. AFFIRMED. Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. F-2009-328 — Michael Joe Villarreal, Appellant, was tried by jury for the crimes of Two Counts of Lewd Molestation of a Minor in Case No. CF-2008-83 in the District Court of Marshall County. The jury returned a verdict of guilty and recommended as punishment twenty years imprisonment on the first count, and seven years imprisonment on the second count. The trial court sentenced accordingly and ordered that the two terms be served consecutively. From this judgment and sentence Michael Joe Villarreal has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. F-2009-213 — E. P. Handy, Appellant, was tried by jury for the crime of Possession of a Controlled Dangerous Substance with Intent to Distribute, After Former Conviction of One Felony, in Case No. CF-2006-1218 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment eighteen years imprisonment. The trial court sentenced accordingly. From this judgment and sentence E. P. Handy has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs in results; Lumpkin, J., concurs in results; Lewis, J., concurs in results. RE-2009-0296 — On June 9, 1999, Appellant, Clarence D. Hines, pled guilty in Oklahoma County District Court Case No. CF-1997-7470, to Possession of CDS, after former conviction

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of one felony. He was sentenced to ten years suspended except for the first five years. This sentence was ordered to be served concurrently with CF-1998-1588 and CF-1998-2179. In Oklahoma County District Court Case No. CF1998-1588, Appellant pled guilty on June 30, 1999, to the amended charge of Possession of CDS, after former conviction of one felony. He was sentenced to ten years suspended except for the first five years. This sentence was ordered to run concurrently with CF-1997-7470 and CF1998-2179. The State filed an application to revoke Appellant’s suspended sentences on May 7, 2008. Following a revocation hearing May 28, 2008, Appellant’s suspended sentences were revoked in full. On appeal, Case No. RE 2008-0557, this Court reversed and remanded the matter to the District Court on March 3, 2009, for a new revocation hearing. The revocation hearing was held March 18, 2009, before the Honorable Ray C. Elliott, District Judge. Finding the application supported by a preponderance of the evidence, Judge Elliott revoked Appellant’s suspended sentences in full. The sentences were ordered to run concurrently. Appellant appeals from the revocation of his suspended sentences. The revocation of Appellant’s suspended sentences is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J.: Concur; Lumpkin, J.: Concur; Lewis, J.: Concur. Friday, April 9, 2010 C-2009-609 — Kyle Wayne Carney, Petitioner, entered pleas of guilty or no contest in Case No. CF-2007-6220 in the District Court of Tulsa County, to the following crimes: Counts 1 and 2, Shooting with Intent to Kill; Counts 3 and 4, Feloniously Pointing a Firearm; Count 5, First Degree Burglary; Count 7, Eluding a Police Officer; and Count 9, Resisting an Officer. Petitioner wrote to the trial court indicating his dissatisfaction with defense counsel’s performance, and requesting that he be allowed to withdraw his pleas. The district court appointed conflict counsel, who filed an application to withdraw pleas. At the hearing on the application, the Honorable Thomas C. Gillert, District Judge, denied the request, and sentenced Petitioner as follows: Counts 1 and 2, twenty-five years imprisonment; Counts 3 and 4, three years imprisonment; Count 5, ten years imprisonment; Counts 7 and 9, one year in the county jail. All sentences were ordered to be served concurrently. This appeal followed. The Petition for Writ of Certiorari is DENIED, and the Judgment and Sentence of the trial court is AFFIRMED. Opinion by: 1066

C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. F-2008-1108 — John Lee Wiley, Appellant, was tried by jury for the crime of Possession of Contraband by an Inmate, After Former Conviction of Two or More Felonies in Case No. CF-2008-397 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment twenty years imprisonment. The trial court sentenced accordingly. From this judgment and sentence John Lee Wiley has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs. COURT OF CIVIL APPEALS (Division No. 1) Thursday, March 25, 2010 106,035 — In Re the Marriage of: Kevin Kelley, Petitioner/Appellant, vs. Gloria Kelley, Respondent/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rodney B. Sparkman, Judge. Kevin Kelley (Husband) appeals a trial court order denying his motion to modify support alimony and request for reimbursement of expenses incurred for two children born during his marriage with Gloria Kelley (Wife). The trial court’s order denying Husband’s motion to modify is neither contrary to law or against the clear weight of the evidence. Husband did not demonstrate the trial court abused its discretion by denying his request for reimbursement, set off and/or credit. The trial court’s judgment is AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., concurs in result, and Hansen, J., concurs. 106,733 — State of Oklahoma, ex rel. Department of Transportation, Plaintiff/Appellee, vs. Hazel Lorraine Evans, Defendant/Appellant, and The Rogers County Treasurer, Defendant. Appeal from the District Court of Rogers County, Oklahoma. Honorable J. Dwayne Steidley, Judge. Plaintiff/Appellee, the Oklahoma Department of Transportation (ODOT), filed a petition June 17, 2005, to acquire a portion of Defendant/Appellant Hazel Lorraine Evans’ (Evans or Landowner) property, through eminent domain for the purpose of improvement and expansion of Highway 20 in Rogers County. Evans filed an exception to the Commissioners’ Report on the grounds that it was in derogation of 27 O.S.2001 § 13(9). The overarching question before the trial court, and on

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review is whether, in an eminent domain proceeding, the landowner may except to the commissioners’ report and force the State to find a parcel of the land in question to be an uneconomic remnant pursuant to 27 O.S.2001 § 13(9). We hold that § 13(9) is an expression of policy directed to the condemning authority concerning uneconomic remnants which is unenforceable by a private party. The trial court did not abuse its discretion when it denied Defendant/Evan’s exception and we therefore affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., concurs in result, and Hetherington, J., concurs. 106,849 — K. Phil Fleetwood, Plaintiff/ Appellant, vs. Chevron U.S.A. Production Company, and Chevron U.S.A. Inc., Defendants/Appellees, Chesapeake Operating, Inc.; Linda Goldenstern; Joe Marko Goldenstern; Amerada Hess Corporation; Jay Allen Stolper; Scott Stolper, Trustee of the Stolper Family Trust Dated January 11, 1990; Andrew Stolper, Trustee of the Stolper Family Trust Dated January 22, 1992; and Jordan Stolper, Trustee of the Stolper Family Trust Dated October 25, 1996, Defendants. Appeal from the District Court of Grady County, Oklahoma. Honorable Richard G. Van Dyck, Trial Judge. Appeal of the denial of judgment on Appellant Fleetwood’s claim attacking the validity of a receiver’s oil and gas lease and the entry of judgment in favor of Chevron U.S.A. Production Company and Chevron U.S.A. Inc. HELD: Appellant Fleetwood’s challenge of the receivership is untimely. Consequently, Chevron was entitled to judgment as a matter of law and the trial court order finding his interest is subject to the leasehold rights of Chevron is AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 107,317 — In the Matter of C.D., F.D., L.D., I.M., and N.M., Children under the age of 18 years. State of Oklahoma, Petitioner/Appellee, vs. Fabian Morehead, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Terry Bitting, Judge. The minor children of Respondent/Appellant, Fabian Morehead (Morehead), had been adjudicated deprived and thereafter, the State of Oklahoma (State) sought to terminate his parental rights. He (and the childrens’ mother) requested a jury trial and the matter was tried June 1-5, 2009, after which a unanimous verdict was returned terminating his parental rights in all five children. We are compelled to REVERSE Vol. 81 — No. 11 — 4/17/2010

because one of the jury instructions given was fundamentally erroneous. REVERSED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. Friday, April 9, 2010 106,140 — Glenn Bailey and Faye Bailey, Plaintiffs/Appellants, vs. Ronald L. White, d/b/a L.B. White Trucking, Rusty Ohrmann, and Nationwide Mutual Insurance Company a/k/a Allied Insurance Company, Defendants/ Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Bryan C. Dixon, Judge. In this negligence action Plaintiffs filed against Defendants, Plaintiff Glenn Bailey appeals the trial court damage judgment from a jury verdict in his favor, raising errors with certain evidentiary rulings. By order of the Supreme Court, Plaintiff Faye Bailey’s appeal is limited to review of the trial court’s post-judgment order awarding costs in favor of Defendants as prevailing party on her loss of consortium claim. We affirm both orders. AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 106,998 — Countrywide Home Loans, Inc., Plaintiff/Appellee, vs. Winston James and Andrea James, Defendants/Appellants, and Occupants of the Premises a/k/a Guillermina Trujillo; Equity Trust Company FBO Rodney Miller’s IRA; and Rosella Ficklin, Defendants. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Daniel L. Owens, Trial Judge. Appeal of a judgment in favor of Countrywide Home Loans, Inc. in a foreclosure action prosecuted by Countrywide and denying Appellants’ counterclaims. HELD: After review of the record in the light most favorable to Appellants, we conclude there are no disputed material facts regarding the identity of the real plaintiff in interest, mortgage assignment, payment history and default, payment credits, judgment amount calculation or counter-claim allegations made by Appellants. Reasonable minds could not differ as to the default on this note and mortgage obligation and that Countrywide was entitled to a subsequent foreclosure judgment as a matter of law. The finding of default and the foreclosure judgment are AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., concurs, and Hansen, J., dissents. 107,011 — In Re The Marriage of Joshua Slate, Petitioner/Appellee, vs. Amber Chadwick, formerly Slate, Respondent/Appellant.

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Appeal from the District Court of McClain County, Oklahoma. Honorable Gary Barger, Judge. Appellant Amber Slate seeks review of the trial court’s post-judgment order denying her application for attorney fees, trial expenses and costs. We affirm the order, concluding Appellant has not demonstrated the trial court abused its discretion. Both parties’ requests for appeal related fees are denied. AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 107,030 — In Re The Marriage of: Brice Dudley Dancer, Petitioner/Appellee, vs. Andrea Lee Dancer, Respondent/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barry L. Hafar, Trial Judge. In this divorce proceeding, the trial court awarded Appellant (Wife) alimony in lieu of property division in the amount of $143,959.00 which was one-half the value of Appellee’s (Husband) business, payable at $1,500.00 per month until paid in full and support alimony in the amount of $12,000.00, payable at $500.00 per month for 24 months. Wife contends the amount of the support alimony award is insufficient due to the length of the marriage, her efforts in furthering Husband’s career and earning power, her lack of education or career history, the parties lifestyle, her needs and Husband’s ability to pay. Support alimony is a need-based concept and Wife has not demonstrated the amount of support alimony awarded her is inadequate. Wife also contends the court abused its discretion by failing to have Husband reimburse her for the children’s medical expenses incurred during the course of litigation. Claims of error made on appeal must be supported by testimony and other evidence in the record. Wife has failed to show how the court abused its discretion in refusing to allocate these expenses. Finally, Wife argues she should not have been required to assume one-half the marital indebtedness. Wife was awarded one-half the IRA account, one-half the 401(k) account and one-half of Husband’s business. We see no abuse of discretion by the trial court. Wife’s request for appealrelated attorney fees is denied. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,439 — Borden Meadowgold and Indemnity Insurance Company of North America, Insurance Carrier, Petitioners, vs. Daron Phillips and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order 1068

of a Three-Judge Panel of The Workers’ Compensation Court. A three-judge panel of the Workers’ Compensation Court unanimously affirmed the trial court’s order of default judgment against Petitioners Borden Meadowgold and Indemnity Insurance Company of North America (collectively “Employer”), based on its finding that employer “was served notice of the time and place of this trial by U.S. Certified Mail, as evidenced by the return receipt of the same on file herein.” We have reviewed the record, and the judgment roll presented reveals that the Workers’ Compensation Court erroneously assumed personal jurisdiction over Employer because there is no evidence that either Borden Meadowgold or Indemnity Insurance was properly notified of the date of the trial. Consequently, we VACATE the judgment and REMAND the matter for trial. VACATED AND REMANDED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. (Division No. 2) Monday, March 29, 2010 107,167 — Jerry Brockett, and Transguard Insurance Company of America, Inc., Petitioners, v. Anthony Jones, and the Workers’ Compensation Court, Respondents. Proceeding to review an order of a three-judge panel of the Workers’ Compensation Court, Hon. Gene Prigmore, Trial Judge, vacating an order of the trial court and entering a new order in its place. Claimant injured his left arm, left shoulder, back, and neck while working as a mover for Employer. Claimant was awarded compensation and requested the court to authorize vocational rehabilitation. After Claimant underwent a court-ordered vocational rehabilitation evaluation, the trial court ordered Employer to pay for Claimant to obtain a Master’s degree as vocational rehabilitation. The three-judge panel vacated the trial court’s order and limited Employer’s duty to pay for vocational rehabilitation to 52 weeks, subject to further review. We vacate the Workers’ Compensation Court’s decision because it is not supported by competent evidence as there is no evidence that the recommended vocational rehabilitation services are necessary to restore Claimant to gainful employment. Oklahoma law does not require Employer to provide vocational rehabilitative services to Claimant to allow him to pursue a Master’s degree when there has been no showing that he cannot perform the same or similar occupational duties he performed before his

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injury and no showing that, although released without restrictions, he is not able to return to gainful employment as a mover. VACATED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Tuesday, March 30, 2010 107,500 — Anthony Feezel, Plaintiff/Appellant, v. Ronald Shockley and Charles Tamashiro, Defendants/Appellees. Appeal from an order of the District Court of Pontotoc County, Hon. Thomas S. Landrith, Trial Judge, granting summary judgment in favor of Defendants. Plaintiff asserts the trial court erred in granting summary judgment to enforce a settlement agreement because no settlement was achieved by the parties. We find the trial court erred in granting summary judgment to Defendants. Material issues of fact remain as to whether the unsigned proposed “Settlement Agreement” represents an agreement the essential terms of which have been accepted by the parties. With contradictory affidavits as to whether a binding agreement was reached on essential settlement terms, material facts remain in dispute and summary judgment should not have been granted. The decision of the trial court is reversed and remanded for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Wednesday, March 31, 2010 105,780 — Valerie Sturgeon, Petitioner/ Appellee, v. Bobby A. Sturgeon, Jr., Respondent/Appellant. Appeal from orders of the District Court of Tulsa County, Hon. Rodney B. Sparkman, Trial Judge, arising from the dissolution of the parties’ marriage and denying Husband’s motion to reconsider. The issues on appeal are whether the trial court erred in (1) awarding Wife sole custody of the couple’s daughter, (2) reducing Husband’s visitation, (3) allowing Wife to home school their daughter, (4) calculating child support, (5) awarding medical and child care expenses, (6) failing to make findings regarding some of Husband’s separate property, (7) finding Wife not guilty of contempt, and (8) limiting the time allotted to Husband to present his case at trial. After review of the appellate record and pertinent law, we find the trial court did not abuse its discretion in awarding sole custody of Daughter to Wife, in awarding “standard” visitation Vol. 81 — No. 11 — 4/17/2010

to Husband, and in ordering that Wife, as sole custodian, is the proper person to make educational decisions for Daughter. We do find, however, the trial court erred in failing to credit to his child support obligation any amounts Husband paid on the mortgage on Wife’s behalf, and we reverse and remand with directions for the trial court to do so. The trial court’s decisions on Husband’s remaining child support issues and on medical and child care expenses are affirmed. We further direct the trial court on remand to make findings regarding Husband’s items of personal property alleged to be either damaged when received or not received at all. We cannot address Husband’s final two issues regarding contempt and the imposition of time limits at trial because he failed to raise these allegations in his motion to reconsider. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. 106,788 — Kenneth Richard Gonzales, Plaintiff/Appellee, v. The State of Oklahoma and The City of Oklahoma City, Defendants/Appellants. Appeal from an order of the District Court of Oklahoma County, Hon. Barbara Swinton, Trial Judge. The trial court granted summary judgment in favor of Gonzales, finding that 11 O.S. Supp. 2008 § 22-115.1 was unconstitutional as applied to Gonzales’s dog kennel. Appellants moved for a new trial and/ or to vacate the judgment, which motions the trial court denied. Based upon the undisputed material facts and applicable law, we find Gonzales lacks standing to challenge the constitutionality of the statute. As such, the trial court’s denial of Appellants’ motions for new trial and/or to vacate the judgment was erroneous. Therefore, we reverse the trial court’s order and vacate the trial court’s judgment. We remand with instructions to dismiss this case. REVERSED, VACATED, AND REMANDED WITH INSTRUCTIONS TO DISMISS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. Thursday, April 1, 2010 106,530 — Calvin Rhoades, Petitioner/Appellant, v. Warden Dinwiddie, Respondent/Appellee. Appeal from orders of the District Court of Atoka County, Hon. Richard E. Branam, Trial Judge, denying a petition for writ of habeas corpus and imposing sanctions. Petitioner filed

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a petition for writ of habeas corpus claiming that by virtue of his being transferred to a private prison, he was released from State custody resulting in commutation of his prison sentence entitling him to immediate release. The trial court denied Petitioner’s petition and found that sanctions, attorney fees, and court costs should be imposed against Petitioner. Petitioner attempted to appeal from the trial court’s order denying his petition. There can be no appeal from such an order, and we therefore recast Petitioner’s petition in error as a second petition for writ of habeas corpus filed as an original action with the appellate courts. After a review of the record and applicable law, we deny Petitioner’s second petition for writ of habeas corpus. Petitioner’s position that transfer to a private prison results in commutation of his sentence is incorrect as a matter of law. However, we reverse the order imposing sanctions. There is nothing in the record before us on which one could reasonably conclude Petitioner’s lawsuit was frivolous, and the trial court found sanctions appropriate before Petitioner had the opportunity to respond. PETITION FOR WRIT OF HABEAS CORPUS DENIED; TRIAL COURT’S ORDER IMPOSING SANCTIONS REVERSED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Friday, April 2, 2010 106,386 — (Opinion on Rehearing) — Kenneth Morgan, Plaintiff/Appellant, vs. State of Oklahoma, ex rel. Oklahoma Department of Corrections (DOC), Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma, Honorable Carolyn R. Ricks, Trial Judge. Plaintiff Morgan is a classified employee of the DOC. On March 15, 2006, he was demoted for timekeeping and cell phone use violations. Morgan challenged that decision through the procedures of the Oklahoma Personnel Act. An ALJ determined that the DOC had failed to prove that Morgan intentionally misrepresented his work hours, but that discipline was warranted because Morgan was negligent in recording his time. The ALJ also determined that the DOC failed to prove that Morgan misused his cell phone. As a result, Morgan’s demotion was reduced to a reprimand, he was reinstated to his former position and awarded back pay. On December 4, 2007, Morgan filed a tort and contract action against the DOC asserting four theories of 1070

recovery: wrongful demotion, intentional infliction of emotional distress, violation of civil and constitutional rights, and defamation. The district granted the DOC’s motion for summary judgment against Morgan’s claims. Morgan appeals. We find that Morgan’s claims for contract damages are barred by the doctrine of claim preclusion as a result of the matters previously adjudicated in the Merit Protection Commission proceedings. Morgan’s intentional infliction of emotional distress claim fails because the commission of a tort requiring malice as an element is inherently outside of the scope of employment defined in the GTCA. See e.g., Parker v. City of Midwest City, 1993 OK 29, ¶ 14, 850 P.2d 1065, 1068 . Morgan’s defamation claims fail because all allegedly defamatory statements were made during his administrative disciplinary procedure conducted pursuant to the Oklahoma Personnel Act, and all communications made during that proceeding are privileged. Morgan’s process and equal protection claims fail because the GTCA waives State immunity only in cases where “a private person or entity would be liable for money damages.” McCathern v. City of Oklahoma City, 2004 OK 6, n.31, 95 P.3d 1090, 1096 n.31. Rendering a private person liable for money damages for constitutional violations requires suit pursuant to Title 42 U.S.C. § 1983. Morgan specifically denies any intent to file a section 1983 suit. Consequently, the State retains immunity against Morgan’s claims for money damages for violation of his constitutional rights. Morgan’s claims of “employment retaliation” or “discrimination” fail because Morgan neither alleges membership in a protected class, nor a protected activity. Further, a Burk action is precluded if a statutory remedy sufficient to protect Oklahoma’s public policy is available, and the Oklahoma Personnel Act provides that remedy. McCrady v. Oklahoma Dep’t of Pub. Safety, 2005 OK 67, ¶ 12, 122 P.3d, 473, 476. Consequently, we affirm the judgment of the district court. AFFIRMED ON REHEARING. Opinion on Rehearing from Court of Civil Appeals, Division II, by Fischer, .J.; Gabbard, P.J., and Rapp J., concur. 107,206 — Keeler Investment Group LLC, Plaintiff/Appellee, vs. Charkoma Resources LLC, Harl Schoeppe, an Individual, and Charles E. Still, an Individual, Defendants/Appellants. Appeal from the District Court of McClain County, Oklahoma, Honorable Charles Gray, Trial Judge. Charkoma appeals the district court’s order granting Keeler’s motion for

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summary judgment in a suit to collect the balance due on a promissory note made by Charkoma to JB Energy Explorations Inc., and held by Keeler. The record shows that Charkoma raised disputed facts providing a defense against JB Energy’s right to collect the Note. Because of the apparent shared identity of the principals of JB Energy and Keller, questions of fact remain as to whether Keeler took the note in good faith and without notice of Charkoma’s defenses against its enforcement. As the record does not show as undisputed fact that Keeler is a holder of the Note in due course, and thereby immune from the defenses Charkoma may raise against JB Energy, summary judgment was not proper. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. Monday, April 5, 2010 107,509 — John Q. Hammons, Trustee of The John Q. Hammons Revocable Trust Dated December 28, 1989 as Amended and Restated, Plaintiff/Appellant, v. Pamela Cox, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge. Trustee, owner of a hotel, sued a hotel guest for property damages to the hotel bathroom allegedly caused by a friend of the hotel guest. The trial court granted summary judgment in favor of the hotel guest and denied Trustee’s motion for new trial. We find no duty of care owed by the hotel guest can be inferred from the facts and circumstances in this case. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. Tuesday, April 6, 2010 106,109 — Dunbar Engineering Corporation, Plaintiff/Appellee, v. Rhinosystems, Inc., Defendant/Appellant. Appeal from an Order of the District Court of Tulsa County, Hon. Rebecca Brett Nightingale, Trial Judge. Defendant appealed the trial court’s Order Compelling Arbitration. We find that the trial court erred in refusing to conduct an evidentiary hearing on Plaintiff’s Motion to Compel Arbitration and in overruling Defendant’s Motion to Reconsider. Therefore, we reverse and remand this case to the trial court to conduct an evidentiary hearing to resolve the factual disputes regarding whether a contract was formed to arbitrate disputes between the parties. REVERSED AND Vol. 81 — No. 11 — 4/17/2010

REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. Thursday, April 8, 2010 106,678 — Edith Jane Wilcoxson, Petitioner/ Appellant, v. Woodward County EMS, Compsource Oklahoma and the Workers’ Compensation Court, Respondents/Appellees. Proceeding to review an order of a three-judge panel of the Workers’ Compensation Court, Hon. H. Thomas Leonard, Trial Judge. Claimant argues the threejudge panel erroneously affirmed the trial court’s award of only eight weeks of TTD benefits. We find that Claimant’s spinal injuries are soft tissue injuries as defined in 85 O.S. Supp. 2005 § 22(3)(d). Furthermore, we find that Claimant’s injuries are nonsurgical. Section 22(3)(d) limits TTD benefits to eight weeks for nonsurgical soft tissue injuries. Bed Bath & Beyond v. Bonat, 2008 OK 47, 186 P.3d 952. Therefore, the eight week TTD award is proper. We also find that the three-judge panel’s order does not lack the specificity required by 85 O.S. Supp. 2005 § 26(B), and that it is supported by competent evidence. SUSTAINED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., concurs, and Goodman, J., dissents. (Division No. 3) Thursday, March 25, 2010 105,915 — Poteau Valley Improvement Authority, Appellant, vs. Oklahoma Public Employees Retirement System, Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Vicki L. Robertson, Judge. Appellant, Poteau Valley Improvement Authority (PVIA), seeks review of the trial court order affirming a decision of the Oklahoma Public Employees Retirement System (OPERS) Board of Trustees to charge PVIA for unremitted retirement benefits of an employee. PVIA complains the trial court and OPERS erred as a matter of both fact and law. In January 2007, the Oklahoma Public Employees Retirement System sent an invoice to PVIA in the amount of $57,324.29, demanding payment to OPERS for the unpaid participating service of Goble, a PVIA employee. The January 2007 invoice to PVIA included both PVIA’s employer share of unpaid contributions, as well as Goble’s employee share, which went unpaid for over thirteen years. PVIA argues on appeal that equitable estoppel prevents OPERS from now demanding these retirement contri-

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bution payments, because PVIA reasonably relied on the information and advice of an OPERS representative when making the decision to exclude Goble from OPERS retirement in 1993. However, to apply equitable estoppel to a public entity such as OPERS, PVIA must establish an exception to the doctrine that equitable estoppel does not generally apply against a public entity. Strong v. State, ex rel. Oklahoma Police Pension and Retirement Board, 2005 OK 45, ¶9, 115 P.3d 889, 893-94. Though PVIA’s position is compelling, PVIA is charged with notice of the limitation on the OPERS representative’s power. Today and at the time Goble was excluded from OPERS retirement, an existing law addressed Goble’s volunteer firefighter status, requiring his participation in the OPERS program. Despite having relied on OPERS misinformation, PVIA is required to follow the law. PVIA’s second error takes issue with the invoice portion that requires PVIA make the employee’s unpaid contributions, as well as the employer’s. Title 74, Section 917(7) has provided for the employer “to pay the contribution and any interest charges or other costs levied against the employee.” Though the statute has been amended since its enactment in 1985, no amendments have changed the exclusive obligation of the employer. Therefore, despite PVIA’s reliance on misinformation provided by the organization now demanding payment, OPERS, and the fact that Goble made no employee contributions toward his own PVIA retirement for over thirteen years, the statute provides that PVIA is exclusively responsible for rectifying this participation and contribution error. While PVIA has complained of unfairness and OPERS has acknowledged PVIA’s compelling position, it is not the function of this court to determine whether the statute is the most fair method of correcting contribution errors. Fent v. Oklahoma Capitol Improvement Auth., 1999 OK 64, 984 P.2d 200, 204. The law demands the employer bear the costs of this mistake and no provisions exist to permit a shifting of this obligation. The order of the trial court is AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J. and Mitchell, J., concur. 106,205 — In Re: The Marriage of Zina Beth Ann Black and Victor Gail Black, Zina Beth Ann Black, Petitioner/Appellee, vs. Victor Gail Black, Respondent/Appellant. Appeal from the District Court of Beckham County, Oklahoma. Honorable Christopher S. Kelly, Judge. Respondent (Husband) appeals from a dissolu1072

tion of marriage decree which divided the parties’ marital property and debt. Husband particularly takes issue with the trial court’s award of the 1996 Kawasaki jet ski to Petitioner (Wife), and the court’s refusal to grant his request that the marital home be refinanced. Husband contends the jet ski was his separate property, purchased prior to the marriage. Husband retitled the jet ski in the name of the parties jointly prior to initiation of the divorce proceedings. Oklahoma law provides a rebuttable presumption of a gift where title to separately held property is placed by one owner-spouse in both spouses’ names as joint tenants. The court properly determined the jet ski was marital property subject to division. Wife presented evidence that refinancing the marital home would be prejudicial to her financial interest because the current note carried an attractive interest rate that would be unavailable if the loan were refinanced. In addition, Wife was ordered to pay all of the note and to indemnify and hold Husband harmless with regard to any claim under the note and mortgage and all other debts or obligations associated with the property. The court did not abuse its discretion. The trial court’s Decree of Dissolution of Marriage is AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 106,402 — City of Tulsa, Tulsa County, State of Oklahoma, Appellee, vs. Cassandra Faye Johnson a/k/a Cassandra Faye Williams, Defendant, and Pattie A. Rohling, Appellant. Appeal from the Municipal Court of the City of Tulsa, Oklahoma. Honorable Dan Crawford, Municipal Judge. Appellant, a professional bail bond person, posted appearance bonds for Defendant (Johnson) in four misdemeanor criminal cases. Johnson failed to appear at her hearing. The bonds were ordered forfeited and a bench warrant was issued for Johnson’s arrest. Appellant was unable to locate Johnson and subsequently made a written request to the Sheriff’s Office to enter Johnson’s warrant information into the National Crime Information Computer (NCIC). Appellant maintains the Sheriff did not honor her request within 14 business days of receipt of the written request. Based upon the Sheriff’s alleged denial of her NCIC request, Appellant filed the instant motion to exonerate bonds pursuant to 59 O.S. Supp. 2007 §1332(C)(4) and appended a copy of the request which was file stamped by the District Court of Tulsa County. The municipal

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judge denied Appellant’s motion on the ground that she failed to present evidentiary support for the motion. From said judgment, Appellant appeals. The only evidence presented to the trial judge showed Appellant filed a written NCIC request with the Sheriff and the Sheriff failed to honor the same. Appellant is entitled to exoneration of her bonds. REVERSED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 106,931 — C.R. Meyer & Sons, and Zurich Insurance Company, Petitioners, vs. Thomas Box, and The Workers’ Compensation Court, Respondents. Proceeding to review an Order of a Three-Judge Panel of the Workers’ Compensation Court. Petitioners (Employer) seek review of the order awarding Respondent (Claimant) permanent total disability (PTD) benefits, less payments for vocational rehabilitation benefits previously awarded. The court also found Claimant had made a good faith effort to find employment and has cooperated with the vocational rehabilitation services provider in his job placement attempts. Claimant’s vocational expert, Mr. Huff, opined that considering Claimant’s age, education, medical information, work history, vocational evaluation and assessment, Claimant is not a good candidate for a return to the workforce. The record contains competent evidence to support the determination that Claimant is PTD as a result of accidental injury to his left shoulder arising out of and in the course of his employment. In addition, Claimant’s good faith effort to find employment in compliance with 85 O.S. §16(D) is also supported by competent evidence. SUSTAINED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 107,185 — Laser Light Skin Clinic, P.C., Petitioner/Appellant, vs. Tammy G. Watkins, Defendant/Appellee, and Oklahoma Employment Security Commission, Co-Defendant/ Co-Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Patricia G. Parrish, Judge. Employer seeks review of the trial court’s order granting the motion to dismiss of the Oklahoma Employment Security Commission for Plaintiff’s failure to name and join OESC’s Board of Review, a necessary party pursuant to 40 O.S. 2001 §2610. OESC and Board are necessary parties under §2-610. When the ten-day appeal period provided in §2-610 has run without all necessary parties being named, the district court is without jurisdiction, and after the ten-day Vol. 81 — No. 11 — 4/17/2010

appeal period has passed, omitted necessary parties may not be added by amendment. AFFIRMED. Opinion by Joplin, P.J.; Mitchell, J., concurs, and Bell, V.C.J., dissents. 107,294 — First Investors Financial Services, Plaintiff/Appellee, vs. Michele Essin, Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Russell Haas, Judge. Defendant seeks review of the trial court’s order dismissing her petition to vacate the default judgment previously granted to Plaintiff. In this appeal, Defendant asserts the trial court erred in refusing to vacate in light of her allegation of Plaintiff’s failure to obtain valid service of process. However, her uncorroborated denial that she lived at the service address, standing alone, is insufficient to overcome the presumption of correctness attending the facially valid return of service by the process server. Further, although she complains the trial court granted judgment for an amount more than twice the default balance due, the judgment clearly includes accrued interest and attorney’s fees, and the face of the judgment roll demonstrates no bar by limitations as she alleged. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J. and Mitchell, J., concur. Friday, April 2, 2010 105,426 — In the Matter of the Application of Antone L. Knox to Change His Name: Antone L. Knox, Appellant, vs. Honorable Bryan Dixon, Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Bryan C. Dixon, Judge. Appellant appeals from the trial court’s order denying his petition for name change and his motion for “correction” of the trial court’s previous order setting the cost of filing the petition. Appellant is an inmate at the Oklahoma State Penitentiary in McAlester in Pittsburg County. He filed his petition in Oklahoma County attesting he was an actual resident of Oklahoma County for more than thirty days preceding the filing of the petition. Appellant was actually residing in Pittsburg County. The court properly denied Appellant’s name change petition. Appellant claims his filing fee should have been refunded and his case transferred to Pittsburg County. Appellant never sought such a transfer in the trial court. In addition, a plaintiff who brings an action in the wrong venue, then successfully moves to transfer the case to the proper venue, is responsible for paying the filing fee in both

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courts. AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 106,362 — Eldon McBride, Sr., Personal Representative of the Estate of Eldon Don McBride, Jr., Deceased, Plaintiff/Appellee, NES Rentals and Insurance Company of State of Pennsylvania, Intervenors/Appellants, vs. Grand Island Express, Inc., a Foreign Corporation; Therance White, Jr., a Citizens of the State of Missouri; Discovery Property & Casualty Insurance Company, a Foreign Insurance Company; DCM Transport, Inc., a Foreign Corporation; Kenneth V. Minter, a Citizen of the State of Illinois; Great West Casualty Insurance Company, a foreign Insurance Company, Defendants/ Appellees. Appeal from the District Court of Muskogee County, Oklahoma. Honorable Norman D. Thygesen, Judge. Intervenors NES Rentals (Employer) and Insurance Company of the State of Pennsylvania (Insurer) (Appellants) seek review of the trial court’s order granting the motion for summary judgment of Plaintiff/Appellee Eldon McBride, Sr., Personal Representative of the Estate of Eldon Don McBride, Jr., Deceased (Plaintiff) in Plaintiff’s action to recover for the wrongful death of Decedent, by which the trial court denied Appellants’ petition to intervene under 85 O.S. §44(c) and (d). Both Appellant Employer and Appellant Insurer are entitled to intervene on the claim to recover money paid for last illness and funeral expenses under §44(c). Appellant NES Rentals, as the employer — but not Appellant Insurance Company of State of Pennsylvania, insurer — is entitled, as a matter of right, to intervene in Plaintiff’s action against the tortfeasors whose negligence allegedly caused Decedent’s death to recover the amount of death benefits paid under §44(d). REVERSED and REMANDED. Opinion by Joplin, P.J.; Mitchell, J., concurs; Bell, V.C.J., concurs in part and dissents in part. (Division No. 4) Friday, March 26, 2010 107,488 — Shawnna L. Miller, Petitioner/ Appellant, vs. Choctaw Travel Plaza and The Workers’ Compensation Court, Respondents/ Appellees. Proceeding to review an order of the Workers’ Compensation Court, Hon. Gene Prigmore, Trial Judge, denying Claimant’s claim due to lack of jurisdiction. Claimant was employed by a business owned by a federallyrecognized tribal government. The Oklahoma Model Tribal Gaming Compact, 3A O.S. Supp. 1074

2009 § 281, contains no express or implied waiver of sovereign immunity by a tribe regarding workers’ compensation claims. Therefore, the workers’ compensation court lacked jurisdiction. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. 106,933 — State of Oklahoma ex rel. Department of Transportation, Plaintiff/Appellant, vs. Larry D. Carter a/k/a Larry Dwayne Carter, and Elfredia Carter, husband and wife, Defendants/Appellees, and Bank of Cherokee County, Armstrong Bank, and the Cherokee County Treasurer, Defendants. Appeal from Order of the District Court of Cherokee County, Hon. Sandy J. Crosslin, Trial Judge, entering judgment on a jury verdict awarding $233,616 to Landowners in a condemnation action. State asserts five claims of error regarding admission of evidence. Only such errors in admission of evidence that result in the miscarriage of justice or violation of a constitutional or statutory right require reversal. We find no such error in the trial court’s determinations here, and no abuse of discretion. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating 106,844 — In re the Marriage of: Cheryl A. Scott, Petitioner/Appellant, vs. Michael T. Scott, Respondent/Appellee. Appeal from Order of the District Court of Muskogee County, Hon. Norman D. Thygesen, Trial Judge, in divorce proceedings. Wife appeals the trial court’s decisions as to property division, support alimony, and attorney fees. Because the trial court failed to allow Wife to cross-examine an independent expert retained to value the parties’ principal marital asset — an interest in an ongoing business — it violated Wife’s due process rights; therefore, the court’s decision, which was based on the expert’s evaluation, must be reversed. In addition, because any future property division may affect an award of support alimony and attorney fees, the court’s decision on those issues must also be reversed. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. 107,491 — Deutsche Bank National Trust Company, Plaintiff/Appellee, vs. Sandi A.

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Roberts, Defendant/Appellant, and Spouse of Sandi A. Roberts, If Married; Tom Herring; New Century Mortgage Corporation; Deutsche Bank National Trust Company Under the Pooling and Services Agreement Dated as of September 1, 2002; Morgan Stanley Dean Witter Capital I Inc. Trust 2002-NC4 by and through its Attorney in Fact, Litton Loan Servicing, LP, a Delaware Limited Partnership; John Doe; and Jane Doe, Defendants. Appeal from Order of the District Court of Tulsa County, Hon. J. Michael Gassett, Trial Judge, granting summary judgment in favor of Plaintiff Bank and foreclosing Bank’s mortgage against Defendant Homeowner based on equitable subrogation. Although Homeowner’s signature on a refinancing mortgage was forged, and the property being foreclosed was her homestead, the facts were undisputed that the proceeds from the refinancing were used to pay off an earlier note and mortgage on which Homeowner admittedly was liable, and that Bank was not responsible for the forgery. The refinancing thus qualified as a purchase money mortgage, removing the homestead from the protection of Article 12, section 2 of the Oklahoma Constitution, which protects the homestead from forced sale for payment of debts unless the debt is a purchase money mortgage. The trial court did not hold Homeowner personally liable on the note, and the undisputed facts show that equitable subrogation should be applied to protect Bank’s interest. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. 107,181 — Samson Resources Company, Inc., Appellant, vs. The Corporation Commission of the State of Oklahoma; and Newfield Exploration Mid-Continent, Inc., Appellees. Appeal from the Oklahoma Corporation Commission, denying Samson’s requested relief. Samson is an interest owner and Newfield is the operator in a drilling and spacing unit. Samson notified Newfield it elected to participate in a well “to the full extent of its interest.” The parties had different conclusions as to what that interest was. Under Samedan Oil Corp. v. Corp. Comm’n, 1988 OK 56, 755 P.2d 664, where an owner’s election alone is satisfactory to the unit operator, it is sufficient to perfect the election and meet the requirement of a pooling order. The evidence is sufficient to support the Commission’s decision. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by GabVol. 81 — No. 11 — 4/17/2010

bard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. 106,760 — In re the Marriage of: Joe Frank Hendren, Petitioner/Appellant, vs. Edith Marie Hendren, Respondent/Appellee. Appeal from Order of the District Court of Delaware County, Hon. Barry V. Denney, Trial Judge, dividing the parties’ property in this divorce action. The trial court did not err in finding that cattle had been converted to marital property due to commingling. However, the court erred in valuing the marital interest subject to division regarding the homestead. That interest is the amount of a loan, received by a mortgage on the homestead, which was paid off with joint funds. The court also erred in awarding the homestead to the wife, subject to a life estate on the husband, because this was less than a division in fee simple. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. Tuesday, March 30, 2010 105,976 — Marie Evans, now Simmons, Plaintiff/Appellee, v. Larry Evans, Defendant/ Appellant. Appeal from an Order of the District Court of Sequoyah County, Hon. Jeff Payton, Trial Judge, dividing the marital property after conducting a hearing on the Motion to Settle Journal Entry filed by Plaintiff, Marie Evans, now Simmons. Defendant argues that the trial court’s finding that the original trial court ordered Defendant to pay Plaintiff $500.00 per month as alimony in lieu of property division, payable from his military retirement benefits, as opposed to support alimony was contrary to the evidence presented. The quest to have a previous order or judgment memorialized before a different trial judge is essentially a proceeding for a nunc pro tunc order. Depuy v. Hoeme, 1989 OK 42, 775 P.2d 1339 n.30. Here, it is impossible to “speak the truth” as to what the trial court originally ordered regarding the support/military retirement issue. This minute order was never memorialized nor are there any notes from the original proceeding available. Furthermore, the pleadings are barren, and the parties provide conflicting evidence regarding the terms of the property settlement and whether the court awarded Plaintiff support alimony. In such circumstances, this Court finds it is only fair to allow both parties the right to have a full and complete hearing on the support alimony and the disposition of Defendant’s military retire-

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ment account issues. AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Fischer, J., concur. Wednesday, March 31, 2010 106,120 — State of Oklahoma ex rel. Department of Transportation, Appellee/Plaintiff, v. Robert Leikam Family Limited Partnership, and C. Robert Leikam and Patricia Leikam, Husband and Wife; DF&R Restaurants, Inc., B& G Realty, Inc., and the Tulsa County Treasurer, Defendants, and Whiteco Industries, a Nebraska corporation, Appellant/Defendant.

Appeal from the District Court of Tulsa County, Hon. Deborah C. Shallcross, Trial Judge, denying various motions Defendant Whiteco Industries filed seeking to prevent the dismissal of a special proceeding for condemnation filed by Plaintiff. We reverse and remand with instruction to the trial court to apportion the value of the condemnation according to the parties’ respective interests in the property. Whiteco is entitled to only that portion of the award representing its interests in the property, notwithstanding the dismissal of other parties in interest. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

Oklahoma Bar Association Management Assistance Program Assistant The OBA seeks a staff assistant for the Management Assistance Program. The OBA Management Assistance Program has been nationally recognized for delivery of management and technology assistance to OBA members. The MAP assistant assists the department director with many projects. Organization and proofreading skills are important, as well as a friendly customer service-oriented attitude. For more information about the department, go to www.okbar.org/map. Requirements: Three or more years experience working in a law firm or legal department. Fast, accurate keyboarding skills. Proficiency in Microsoft Word and PowerPoint. Familiarity with other software applications and Internet tools. Willing to commit to a position requiring constant learning and teaching. Competitive benefit package. EOE. Send resume and cover letter to OBA-MAP Assistant Search, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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OFFICE SPACE

TWO EXECUTIVE OFFICES AVAILABLE IN THE RIVERPARK BLDG. at 1874 S. Boulder. Offices include receptionist, conference room, telephone, highspeed computer access, security system, utilities and free parking. Great location and easy access to courthouse, all major highways, Cherry Street and Utica Square. Call Keith Ward at (918) 764-9011 or e-mail riverparkbuilding@keithwardlaw.com. NORTH OKC LAW FIRM OFFICE SPACE AVAILABLE. Office includes executive desk, receptionist, internet, copier, fax and kitchen. Recently renovated office with wood flooring in reception area and new carpet in office. $425 per month utilities paid. Call McBride & Associates P.C. (405) 842-7626. 511 COUCH DRIVE: BEAUTIFUL, SPACIOUS OFFICES. Third floor of a building in Arts District downtown Oklahoma City. Within walking distance of City, County and Federal Courthouses. Parking at the door. Approximately 6,000 sq. feet available, or may be divided. Please call Linda G. Alexander at (405) 232-2725 for a showing.

POSITIONS AVAILABLE DOWNTOWN TULSA AV RATED FIRM SEEKS ASSOCIATE with 3 to 10 years civil litigation experience. Firm offers an excellent compensation package. Salary is commensurate with experience. Strong academic record required. Please send resume, references, writing sample and law school transcript to “Box Z,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. AV-RATED DOWNTOWN TULSA FIRM SEEKS ASSOCIATE 0-2 years experience. The firm has a diverse practice featuring civil litigation, estate and tax planning, as well as family law. Drafting, brief writing, and some courtroom work can be expected. The successful candidate will have a positive attitude and the ability to effectively communicate and then follow through with assignments. Salary commensurate with experience and ability. Send resumes to “Box N,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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POSITIONS AVAILABLE

ASSISTANT DISTRICT ATTORNEY POSITION AVAILABLE: Primary responsibilities include the criminal prosecution of all domestic violence and sexual assault offenses, both felony and misdemeanor, provide training and advice to local law enforcement on cases involving domestic violence and sexual assault, and perform other duties as assigned. Requires a J.D. from an accredited law school, legal experience in criminal law and prior courtroom experience (3+ years) preferred. Must be admitted to the Oklahoma Bar Association and be in good standing. Salary DOE. Send resume postmarked no later than April 23, 2010, to the following address: LeFlore County District Attorney’s Office, P.O. Box 880, Poteau, OK 74953, Office (918) 647-2245, Fax (918) 647-3209.

PARALEGAL WITH EXPERIENCE HANDLING SOCIAL SECURITY DISABILITY CASES needed for busy Tulsa office. Pay commensurate with experience. Bonus for bilingual ability. Send resume to “Box A,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. All replies kept confidential.

NORMAN AV-RATED SOLE PRACTITIONER SEEKING ASSOCIATE with 0-6 years experience for litigation position with emphasis in Oil & Gas. Competitive salary and benefits. Send resume and writing sample to “Box D,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. NORMAN LAW FIRM SEEKS ASSOCIATE ATTORNEY with 0-5 years experience. Practice areas include Family Law, Bankruptcy, Criminal Defense, and Personal Injury. Experience in one or more of these areas preferred, but not required. Applicants must have willingness and ability to assume case load immediately. Salary commensurate with experience. Health benefits offered. Send resumes and cover letters to: knedwick@nedwicklaw.com. MCATEE & WOODS, PC SEEKS LEGAL ASSISTANT for full-time position. Please mail resumes to 410 NW 13th St., OKC, OK 73103, fax to (405) 232-5067 or e-mail to office@mcateeandwoods.com. RUBENSTEIN MCCORMICK & PITTS (EDMOND OFFICE) is looking for an ambitious full-time attorney with 2-5 years experience in business, tax and litigation. Competitive salary with benefits. Send resume with writing sample to mrubenstein@oklawpartners.com or to Mike Rubenstein, 1503 E. 19th St., Edmond, OK 73013. EXPERIENCED PARALEGAL NEEDED for very busy Edmond law firm. Experience in civil litigation required. Salary commensurate with experience. Please send resume and references to Nelson Roselius Terry & Morton, Attention Greg Kirby, P.O. Box 138800, Oklahoma City, OK 73113. NORTHEASTERN OKLAHOMA LAW FIRM SEEKS ATTORNEY to handle probates, guardianships, basic wills and trusts, LLC and corporation formation. Send resume and writing sample to “Box X,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. AV-RATED DOWNTOWN OKC LAW FIRM SEEKS ASSOCIATE with 4 to 8 years experience in bankruptcy, business litigation, and commercial litigation. Salary commensurate with experience. Great benefits package. Send replies to “Box F,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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LAW FIRM SEEKING ASSOCIATE ATTORNEY in downtown Oklahoma City, with 1-5 years experience, and a commitment to representing tribes and tribal organizations. Preference will be given to attorneys with demonstrated experience and/or education in American Indian Law. Applicant must be licensed to practice in at least one jurisdiction; membership in good standing in the Oklahoma Bar Association is preferred, if not a member of the Oklahoma Bar, the applicant must pass the Oklahoma Bar Exam within 15 months. Applicant should possess excellent analytical, writing and speaking skills, and be self-motivated. Compensation commensurate with experience. Excellent benefits. Please send cover letter that illustrates your commitment to promoting tribal governments and Indian rights, a current resume, a legal writing sample, proof of bar admission, and contact information for three professional references to: dbond@hobbsstraus.com. SPECIAL MUNICIPAL JUDGE POSITIONS. Special Judges are called to act as Municipal Judge for the City of Oklahoma City during absence of full-time judge. Requirements include residency in the City of OKC and minimum of 4 years experience as licensed practicing attorney in state of Oklahoma. Interested applicants contact Becca Jessop, Department of Court Administration, at 700 Couch Drive, Oklahoma City, OK 73102 or via e-mail at becca.jessop@okc.gov. Applications will be accepted April 21, 2010 through May 12, 2010. Names of final applicants will be submitted to City Council for approval.

CLASSIFIED INFORMATION CLASSIFIED RATES: One dollar per word per insertion. Minimum charge $35. Add $15 surcharge per issue for blind box advertisements to cover forwarding of replies. Blind box word count must include “Box ____ , Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.” Display classified ads with bold headline and border are $50 per inch. See www.okbar.org for issue dates and Display Ad sizes and rates. DEADLINE: Tuesday noon before publication. Ads must be prepaid. Send ad (e-mail preferred) in writing stating number of times to be published to: Jeff Kelton, Oklahoma Bar Association P.O. Box 53036, Oklahoma City, OK 73152 E-mail: jeffk@okbar.org Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement notices must be clearly nondiscriminatory.

The Oklahoma Bar Journal

Vol. 81 — No. 11 — 4/17/2010

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