http://www.okbar.org/obj/pdf/2010/OBJ2010Apr24

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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 26

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

27

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

28

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

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

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

29

OBA Ask A Lawyer; OETA Studios, Oklahoma City; Contact: Tina Izadi (405) 521-4274

5

OBA Law-related Education Project Citizen Showcase; 8:30 a.m.

– 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024

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

OBA Women in Law Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Renee DeMoss (918) 595-4800

6

Oklahoma Bar Foundation Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070

OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: H. Terrell Monks (405) 733-8686

7

OBA Diversity Committee Meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Marvin Lizama (918) 742-2021

BAR Center Staff

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

Vol. 81 — No. 12 — 4/24/2010

MAY 2010

OBA Uniform Laws Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Fred Miller (405) 325-4699 For more events go to www.okbar.org/news/calendar.htm

10

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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Oklahoma Bar Association

table of

contents April 24, 2010 • Vol. 81

• No. 12

page 1083 Events Calendar 1086 Index to Court Opinions 1087 Supreme Court Opinions 1093 Court of Civil Appeals Opinions 1095 2010 Sovereignty Symposium Agenda 1105 Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court 2010 OK 35 JONATHAN MORRIS, an individual, Plaintiff, v. AMERICA FIRST INSURANCE COMPANY, Defendant. No. 107,284.................................................................................. 1087 2010 OK 34 SALAZAR ROOFING & CONSTRUCTION, INC., an Oklahoma Corporation, Plaintiff/Appellee, v. THE CITY OF OKLAHOMA CITY, Defendant/Appellant.

No. 107,137.......................................................................................................................................... 1090 2010 OK 36 STATE OF OKLAHOMA ex rel. Oklahoma Bar Association, Complainant, v.

M. BENJAMIN SINGLETARY, Respondent. SCBD No. 5606..................................................... 1091

Index To Opinions Of Court of Civil Appeals 2010 OK CIV APP 28 BAYS EXPLORATION, INC., Plaintiff/Appellant, vs. DOUGLAS JONES, Defendant/Appellee. Case No. 106,475........................................................................... 1093

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. Application deadline is April 30, 2010.

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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 35

I. FACTS

JONATHAN MORRIS, an individual, Plaintiff, v. AMERICA FIRST INSURANCE COMPANY, Defendant.

¶2 The federal court presents the following facts. On August 18, 2006, in the state of Washington, the plaintiff, Jonathan Morris, while driving his own Freightliner semi, collided with Jena Heidloff. She was driving her car the wrong way in Mr. Morris’s lane of traffic and she died in the subsequent collision, which injured Mr. Morris. At the time of the wreck, Mr. Morris was on the job as an independent contractor for Miller Trucking. USAA, the insurer for Ms. Heidloff, paid the policy’s $100,000.00 liability limits to Mr. Morris.

No. 107,284. April 20, 2010 CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA ¶0 The United States District Court for the Western District of Oklahoma, pursuant to 20 O.S.2001, § 1604, certifies the following question of law to the Supreme Court of Oklahoma: “Is a provision in an automobile insurance policy that excludes UM coverage for bodily injury sustained by any insured who is a resident family member, while occupying, or when struck by, any motor vehicle owned by that person which is not insured for uninsured motorist coverage at the time of the accident in conflict with 36 O.S. 2004 Supp. § 3636 and therefore void and/or unenforceable?”

CERTIFIED QUESTION ANSWERED. Rex Travis, Paul Kouri, Oklahoma City, Oklahoma, for plaintiff.

Tim D. Cain, Barbara K. Buratti, WILSON, CAIN & ACQUAVIVA, Oklahoma City, Oklahoma, for defendant.

WINCHESTER, J. ¶1 Pursuant to 20 O.S.2001, § 1604,1 the United States District Court for the Western District of Oklahoma certifies the following question of law to this Court: “Is a provision in an automobile insurance policy that excludes UM coverage for bodily injury sustained by any insured who is a resident family member, while occupying, or when struck by, any motor vehicle owned by that person which is not insured for uninsured motorist coverage at the time of the accident in conflict with 36 O.S. 2004 Supp. § 3636 and therefore void and/or unenforceable?”

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¶3 The contract between Miller Trucking and Mr. Morris required that he obtain and maintain liability insurance on his semi, but did not require him to carry uninsured/underinsured (UM) insurance.2 Mr. Morris purchased insurance for his semi through Miller Trucking. He understood that the policy did not include UM coverage. He also understood that he had the option of independently purchasing such insurance coverage. ¶4 Besides the semi, Mr. Morris owned two personal vehicles that he insured with Allstate.

That policy included UM coverage with $25,000.00 per person limits. After the accident, Allstate paid the $25,000.00 UM limits. ¶5 At the time of the wreck, Mr. Morris was a resident of his mother’s home in Ponca City, Oklahoma. He had moved in with her after selling his house about a month before the collision. His mother, Kathy Smith, accompanied him on the trip to Washington and was also injured in the collision. West American Insurance Company of the Ohio Casualty Group, which is now owned by the defendant, America First Insurance Company, insured Mrs. Smith. That policy included $100,000.00 per person UM coverage, and was a renewal policy issued several months before Mr. Morris moved back in with Mrs. Smith. She was the only “named insured” and she and her husband are the only “listed drivers” under the policy. ¶6 None of Mr. Morris’s vehicles were listed as “covered autos” under Mrs. Smith’s policy, and he paid no part of the premium. But he

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was an “insured” under the policy as a resident of the household. The policy excluded UM coverage for an “insured” who was a family member and was injured while occupying a vehicle he owned that was not insured for UM coverage at the time of the accident. ¶7 After Mr. Morris submitted a claim under the UM provisions of his mother’s policy, West American denied his claim citing the exclusion. He filed a lawsuit alleging causes of action for breach of contract and bad faith arising from the insurer’s denial of his UM claim. He contended that the exclusion violates 36 O.S.Supp.2004, § 3636, and is therefore unenforceable.

II. DISCUSSION ¶8 The defendant asserts that limitations are permitted on UM coverage when individuals own a vehicle and have had an opportunity to purchase UM coverage for the vehicle. The defendant concludes that the exclusion in Mrs. Smith’s policy is an express, unambiguous exclusion and that Mr. Morris is clearly precluded coverage under the undisputed facts of this case. ¶9 The plaintiff argues that the defendant cannot distinguish the exclusion found in its policy with Mrs. Smith from that voided in Cothren v. EMCASCO Ins. Co., 1976 OK 137, 555 P.2d 1037. The claimant in that case was injured while riding as a passenger on a motorcycle, which collided with an uninsured motor vehicle. His stepfather had an automobile liability policy with EMCASCO that included an uninsured motorist provision. It provided that “insured” meant the named insured and any designated insured, and where residents of the same household, the relatives of either. Under that provision, the claimant would be an insured. ¶10 The EMCASCO policy’s uninsured motorist provision excluded an insured who occupied an uninsured vehicle owned by the “named insured, any designated insured or any relative resident in the same household” of those insured. Cothren, 1976 OK 137, ¶ 5, 555 P.2d at 1038. Title to the motorcycle was in either the name of the mother or stepfather of the claimant, but the motorcycle was not listed as an insured vehicle under the policy. On its face, the uninsured motorist provision would have left the claimant uninsured.

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¶11 The Cothren Court held the exclusion to be inconsistent with the requirements of Oklahoma’s UM statute. The Court cited the reasoning of sister jurisdictions, and quoted Nygaard v. State Farm Mut. Auto. Ins. Co., 301 Minn. 10, 221 N.W.2d 151 (1974), that Minnesota’s UM statute “does not purport to tie protection against uninsured motorists to occupancy of the insured vehicle.” Cothren, 1976 OK 137, ¶ 13, 555 P.2d at 1039-1040. State Farm Mutual Auto. Ins. Co. v. Wendt, 1985 OK 75, ¶ 8, 708 P.2d 581, 585, stated the Cothren rule as requiring coverage to stem “not from owning an automobile,” but “from falling within the definition of an insured under any given insurance contract.” The insurance follows the person, not the vehicle in which the person was injured. ¶12 The defendant insurance company quotes Wendt, 1985 OK 75, ¶ 8, 708 P.2d at 585, that “Any attempt to tie uninsured motorist coverage to automobiles alone, rather than to people, must fail.” But the defendant argues that its policy is not tied to automobiles alone.

The defendant informs this Court that when Morris resided in his mother’s home, he was not listed as an insured on her policy, and that none of his vehicles were listed as “covered autos” and his mother paid no extra premium to provide coverage for him. This is not relevant to whether Morris is an insured under the policy. In item 10 of the Order of Certification the United States District Court provides this fact: “Morris was an ‘insured’ under the Policy as a resident of Smith’s household…. “The defendant admits in its brief that facts set forth in this paragraph are undisputed.3 ¶13 In addition to the semi, which was Mr. Morris’s business vehicle, he owned two personal vehicles insured by Allstate. That policy included UM coverage with $25,000.00 per person limits. Allstate paid those UM limits to Mr. Morris. Therefore, the undisputed facts reveal that Mr. Morris had UM coverage while in his semi. The American First Insurance Company policy before this Court attempts to tie the UM insurance to the vehicle Mr. Morris occupied, not to the insured, Mr. Morris. The defendant is left with the contention that although Mr. Morris had UM coverage while in the semi, he did not have a UM clause in the particular document that covered his semi. That reasoning ties UM coverage to the vehicle and not the person, contrary to the holdings of Cothren and Wendt. ¶14 The federal district court expressed its concern that the recent Court of Civil Appeals

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opinion, Conner v. American Commerce Ins. Co., 2009 OK CIV APP 61, 216 P.3d 850, (cert. den.

Apr 20, 2009), appears to conflict with Cothren, Wendt, and Shepard v. Farmers Ins. Co., 1983 OK 103, 678 P.2d 250. ¶15 In the Conner case, the plaintiff, Barry Conner, insured his motorcycle with AIG, but rejected uninsured motorist coverage. He was a resident relative of the named insureds, his parents, whose policy was with American Commerce Insurance. After an accident with an allegedly uninsured motorist, the plaintiff requested uninsured motorist benefits from his parents’ policy. The Court of Civil Appeals held that the policy exclusion, which did not extend UM coverage to a vehicle that the policy does not insure and which is not otherwise covered for UM by any other insurer, is not inconsistent with the purpose of § 3636(E).4 ¶16 Subsection (E) of § 3636 provides that “there is no coverage for any insured while occupying a motor vehicle owned by .… a resident relative of the named insured, if such vehicle is not insured by a motor vehicle insurance policy.” Although subsection (E) does not specifically mention uninsured motorist coverage, the holding of the Conner court is consistent with the reasoning in Shepard. ¶17 In the Shepard case the United States District Court for the Western District of Oklahoma submitted a certified question that asked whether a clause in an insurance contract was unconscionable or against public policy as expressed in Oklahoma’s Uninsured Motorist Act, which denied coverage for a relative of the insured living in the same household because that relative or the relative’s spouse owned an automobile. The Court observed that “Since uninsured motorist coverage is mandatory unless waived, the presumption exists that one who owns an automobile has recourse to some uninsured motorist benefits” and held that “the exclusionary language [is] consistent with sound principles of contract and insurance law and valid as measured by the relevant statutory mandates of the Oklahoma Uninsured Motorist Act.” Shepard, 1983 OK 103, ¶ 9, 678 P.2d at 253. ¶18 The Conner case holds that where a resident relative of a named insured insures his vehicle with liability insurance, but rejects uninsured motorist coverage, then an insurance company, with the proper exclusion, may Vol. 81 — No. 12 — 4/24/2010

preclude UM coverage from extending to such a vehicle. ¶19 The facts in the Conner case are distinguishable from those now before this Court.

Mr. Morris had UM coverage. To now say that an insurance company may exclude UM coverage from a resident insured because a specific vehicle, Mr. Morris’s Freightliner semi, did not include UM coverage in its specific policy, violates the line of cases holding that UM coverage follows the person, not the vehicle. Mr. Morris was entitled to rely on this Court’s previous holdings in his decision to include UM coverage for his automobiles but not to purchase a separate UM policy for his semi. ¶20 The clause before this Court that excludes UM coverage for bodily injury sustained by a resident family member, who is otherwise insured by such policy, violates the public policy expressed in Cothren and Wendt. That clause is void insofar as it requires separate UM coverage on a specific vehicle even though the owner is otherwise covered by the UM provisions of a liability policy he purchased on another vehicle.

CERTIFIED QUESTION ANSWERED. CONCUR: EDMONDSON, C.J., HARGRAVE, OPALA, WATT, WINCHESTER, COLBERT, REIF, JJ. CONCURS IN PART; DISSENTS IN PART: KAUGER, J. DISSENTS: TAYLOR, V.C.J. 1. 20 O.S.2001, § 1604 provides: “Contents of Certification Order.

“A. A certification order must contain: “1. The question of law to be answered; “2. The facts relevant to the question, showing fully the nature of the controversy out of which the question arose; “3. A statement acknowledging that the Supreme Court or Court of Criminal Appeals of this state, acting as the receiving court, may reformulate the question; and “4. The names and addresses of counsel of record and parties appearing without counsel.

“B. If the parties cannot agree upon a statement of facts, the certifying court must determine the relevant facts and state them as a part of its certification order.”

2. That contract specifically provided: “In addition to the insurance coverages required under this Agreement, it is CONTRACTOR’S responsibility to procure, carry and maintain any . . . uninsured and/or uninsured motorist . . . or other insurance coverage that CONTRACTOR may desire for the Equipment or for CONTRACTOR’S health care or other needs. . . CONTRACTOR acknowledges that CARRIER may, and CONTRACTOR hereby authorizes CARRIER to, waive and reject no-fault, uninsured, and underinsured motorist coverage from CARRIER’S insurance policies to the extent allowed under Oklahoma law . . . and CONTRACTOR shall cooperate in the completion of all necessary documentation for such waiver, election, or rejection.”

3. Defendant America First Insurance Company’s Opening Brief on Certified Question, page 2: “Except for item 20 (first), and the last sentence in item 19, the facts set forth in the Order of Certification are undisputed.”

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4. A new subsection E was added by 2004 Okla.Sess.Laws, ch. 519, § 25(E), which provides: “For purposes of this section, there is no coverage for any insured while occupying a motor vehicle owned by, or furnished or available for the regular use of the named insured, a resident spouse of the named insured, or a resident relative of the named insured, if such motor vehicle is not insured by a motor vehicle insurance policy.” Section 3636 was amended again by 2009, Okla.Sess.

Laws, ch. 176, § 31, but subsection E was not revised.

(27) Any claim or action based on the theory of indemnification or subrogation; 51 O.S. 2001, § 163(D) provides:

2010 OK 34 SALAZAR ROOFING & CONSTRUCTION, INC., an Oklahoma Corporation, Plaintiff/ Appellee, v. THE CITY OF OKLAHOMA CITY, Defendant/Appellant.

No. 107,137. April 20, 2010 ON CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION I ¶0 Governmental Tort Claims action wherein the City’s employee damaged the property of Salazar Roofing & Construction. The trial court found in favor of Salazar, and the Court of Civil Appeals reversed finding the matter sounded in subrogation.

WRIT OF CERTIORARI PREVIOUSLY GRANTED; ORDER OF THE COURT OF CIVIL APPEALS REVERSED; RULING OF TRIAL COURT AFFIRMED. Tom M. Cummings, Oklahoma City, Oklahoma, for Appellee.

Kenneth Jordan, Municipal Counselor, Matthew A. Collins, Assistant Municipal Counselor, City of Oklahoma City, Oklahoma City, Oklahoma, for Appellant.

HARGRAVE, J. ¶1 On August 30, 2007, in Oklahoma City, an employee of the City, acting within the scope and course of this employment, backed the City’s dump truck into the dump truck of Salazar Roofing & Construction Company. Salazar sought damages from the City and fully complied with the notice provisions of the Governmental Tort Claims Act. Oklahoma City admitted liability, stipulated to the damages, but denied the claim, except to the extent of paying Salazar’s insurance-deductible payment. It conceded that its employee was negligent but argued that it was exempt from liability under the Governmental Tort Claims Act, specifically 51 O.S. 2001, §§ 155(14), 155 (27) and 51 O.S. 2001, § 163(D). ¶2 51 O.S. 2001, §§ 155(14), 155 (27) provides: The state or a political subdivision shall not be liable if a loss or claim results from: 1090

(14) Any loss to any person covered by any workers’ compensation act or any employer’s liability act;

D. All actions against the state or political subdivision shall be filed in the name of the real party or parties in interest, and in no event shall any claim be presented nor recovery be made under the right of subrogation. ¶3 The City argued that since Salazar had private insurance covering the claim (a collateral source of indemnity) that the City was liable only for Salazar’s insurance-deductible payment. The trial court conducted a non-jury trial and found that Salazar’s claim is not a subrogation claim, but a first-party claim and that neither 51 O.S. 2001, §§ 155(14), 155 (27) nor 163(D) applies. The trial court also found that the Governmental Tort Claims Act does not prohibit a recovery from a collateral source.

Judgment was for Salazar for $11,083.58 in damages, with post-judgment interest, attorney fees of $4,500.00 and $217.00 in costs. The City appealed and the Court of Civil Appeals reversed, finding the claim was one for subrogation. We grant Certiorari and reverse the opinion of the Court of Civil Appeals. ¶4 Subrogation has been defined by this Court as “a doctrine the law has devised for the benefit of one secondarily liable who has paid the debt of another.” Sexton v. Continental Casualty Co., 1991 OK 84 ¶18, 816 P.2d 1135. In the instant matter, the Claim filed under the Governmental Torts Claim Act by Salazar was filed in Salazar’s name, directly against the tortfeasor, for the benefit of the owner of the damaged vehicle. The action was not filed by the insurance carrier to recoup the amount paid to insured. Therefore it appears that this matter is a first-party claim, not a claim for subrogation. No subrogation is at issue in the instant matter. There is no party secondarily liable for the damage caused by the City’s negligence present in the case at bar. ¶5 In the instant matter, the statutory language of 51 O.S. 2001 §155(27) does not bar Salazar’s claim against Oklahoma City. Salazar’s claim was not based on the theory of subrogation or indemnification, as the statute forbids. Neither does Salazar’s claim offend 51 O.S. 2001 § 163(D), which requires that all

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actions must be brought in the name of the real party in interest and no recovery may be made under the right of subrogation. Salazar’s claim is its own and Salazar is the only party in interest. 51 O.S. 2001, § 155(14) deals with Workers’ Compensation and is not applicable in the instant matter.

WRIT OF CERTIORARI PREVIOUSLY GRANTED; ORDER OF THE COURT OF CIVIL APPEALS REVERSED; RULING OF TRIAL COURT AFFIRMED. ¶6 CONCUR: EDMONDSON, C.J., HARGRAVE, OPALA, KAUGER, WATT, COLBERT, REIF, JJ. ¶7 DISSENT: TAYLOR, V.C.J., WINCHESTER, J. 2010 OK 36 STATE OF OKLAHOMA ex rel. Oklahoma Bar Association, Complainant, v.

M. BENJAMIN SINGLETARY, Respondent.

SCBD No. 5606. April 20, 2010 ¶0 ORDER APPROVING RESIGNATION FROM THE OKLAHOMA BAR ASSOCIATION PENDING DISCIPLINARY PROCEEDINGS ¶1 Upon consideration of the complainant Oklahoma Bar Association’s application for an order approving the resignation pending disciplinary proceedings of the respondent, M. Benjamin Singletary, THE COURT FINDS: 1. M. Benjamin Singletary, OBA Number 8273, was admitted to the Oklahoma Bar Association on September 30, 1977. His official roster address as shown by the Oklahoma Bar Association, is 74 James River Lane, Newport News, Virginia, 23606.

2. On February 5, 2010, the Respondent submitted his written affidavit of resignation from membership in the Oklahoma Bar Association pending disciplinary proceedings, pursuant to Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. Respondent requests that he be allowed to resign his membership in the Oklahoma Bar Association and relinquish his right to practice law.

3. The Respondent’s affidavit states that he is freely and voluntarily tendering his resignation, that he is not being subjected to coercion or duress and that he is fully aware Vol. 81 — No. 12 — 4/24/2010

of the consequences of submitting his resignation pending disciplinary proceedings.

4. The Respondent states in the affidavit that he is aware of a formal complaint pending against him with this Court alleging violations of Rules 1.5, 1.15, 8.4(a) and 8.4(c) of the Oklahoma Rules of Professional Conduct, and Rule 1.3 of the Rules Governing Disciplinary Procedures.

5. The Respondent states that he is aware of the following grievance filed against him: DC 09-312: Grievance by the General Counsel of the OBA regarding allegations that, on or about August 27, 2009, I submitted a list of expenses for reimbursement to the law firm of Gable & Gotwals. The submitted expenses totaled $28,488.36 for the eight month period January 2009 through August 29, 2009. I represented to the firm that all of these expenses had been incurred on behalf of a client when, it is alleged that, $3,407.39 had not. Furthermore, the OBA alleges that additional expenses were reimbursed and charged to clients in the amount of $39,976.80.

It is alleged that these expenditures were not incurred on behalf of clients.

6. Respondent acknowledges that the allegations against him would, if proven, constitute violations of the Rules of Professional Conduct set out in paragraph 4 and also his oath as an attorney, and he has voluntarily waived any and all right to contest them.

7. Respondent states that he is aware that the Law Firm of Gable & Gotwals has reimbursed any and all affected clients.

Respondent further states that he has resigned from and reimbursed the Law Firm of Gable & Gotwals the amounts listed above.

8. Respondent states that he has familiarized himself with, and has agreed to comply with, Rule 9.1, Rules Governing Disciplinary Proceedings, within twenty (20) days following the date of his resignation.

9. Respondent recognizes and agrees that he may not make application for reinstatement to membership in the Oklahoma Bar Association prior to expiration of five (5) years from the effective date of this Order and that he may be reinstated to the practice of law only upon full compliance with Rule 11, Rules Governing Disciplinary

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Proceedings and any other rules that may apply to such reinstatement.

10. Respondent acknowledges that the Client Security Fund may receive claims from his former clients and he agrees to reimburse the fund the principal amounts and the applicable statutory interest prior to the filing of any application for reinstatement.

11. Respondent acknowledges and agrees that he is to cooperate with the Office of the General Counsel in the task of identifying any active client cases wherein documents and files need to be returned or forwarded to new counsel, and in the client case where fees or refunds were owed by him.

12. The OBA has not requested respondent to reimburse costs incurred by the complainant in the investigation of this matter.

13. The resignation pending disciplinary proceedings executed by the respondent is in compliance with Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S. Ch. 1, App. 1-A and should be approved. ¶2 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT complainant’s application and respondent’s resignation pending disciplinary proceedings are approved. ¶3 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT M. Benjamin Singletary’s name be stricken from the roll of attorneys, and because resignation pending disciplinary proceedings is tantamount to disbarment, he may make no application for reinstatement to membership in the Oklahoma Bar Association prior to the lapse of five (5) years from the date of this Order. Repayment to the Client Security Fund for any monies expended because of the malfeasance or nonfeasance of the respondent shall be a condition of reinstatement. The respondent shall comply with Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001 Ch. 1, App. 1-A, within twenty (20) days of the date of his resignation. ¶4 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 19TH DAY OF APRIL 2010. /s/ James E. Edmondson CHIEF JUSTICE

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¡Alli los miramos!

¶5 ALL JUSTICES CONCUR 1092

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Court of Civil Appeals Opinions

Dallas Makes Three

2010 OK CIV APP 28 BAYS EXPLORATION, INC., Plaintiff/ Appellant, vs. DOUGLAS JONES, Defendant/Appellee.

Case No. 106,475. April 14, 2010 CORRECTION ORDER On November 13, 2009, this Court issued its Opinion for publication in the above styled matter. The Opinion is corrected in the following manner: In Paragraph 10, Line 8, the first full sentence is corrected to read: Having failed to do so, Bays is precluded from raising it here.

In all other respects, the Opinion shall remain unaffected by this Order.

DONE BY ORDER OF THE COURT OF CIVIL APPEALS this 13th day of April, 2010. /s/ CAROL M. HANSEN Presiding Judge

Biscone & Biscone Attorneys

We will gladly accept your referrals for oklahoma workers’ compensation and social security disability cases.

Association/ referral fees paid

corporate and insurance law focus of new texas office

Travis Dunn

Philard L. Rounds, Jr.

Steven E. Holden

Michael L. Carr

Michelle B. Skeens

Lead attorney Steven E. Holden of Holden & Carr, a 13 attorney firm, has an “AV” rating from Martindale-Hubbell, and has tried over 200 jury trials. Approximately 90% of his civil cases have concluded successfully. The firm’s expanding caseload has led to a Dallas office with noted Texas attorney Kerry McGill, 1991 OU College of Law graduate, who recently served as in-house counsel for a national insurance company.

McGill has been lead counsel on countless jury trials and successfully steered appeals through state and federal courts.He has won trials on high exposure cases: product Kerry McGill liability, insurance defense, mass tort, employment and commercial litigation.

Holden will divide his time between Texas and Oklahoma as he and McGill expand the firm’s presence in both states.

1-800-426-4563 405-232-6490 105 N. Hudson, Suite 100 Hightower Building Oklahoma City, OK 73102 Vol. 81 — No. 12 — 4/24/2010

Aggressive representation. Cost effective results for you.

Oklahoma City · 405.813.8888 | Tulsa · 918.295.8888 | Dallas · 972.616.8888

HoldenLitigation.com

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www...

ptions

your association’s sites Oklahoma BarWeb Circle at www.okbar.org Look on the right side of the page next to the Fastcase login. Enter your ID and PIN #. Don’t know it? That’s okay, just click on the Forgot your PIN? link and one will be provided to you shortly. One shorthand way of thinking of Oklahoma Bar Circle is that it is like Facebook for Oklahoma lawyers, but access is allowed only to other Oklahoma lawyers. Think of Oklahoma Bar Circle as an online pictorial directory. This social networking tool can be used to mentor, market yourself, network with other attorneys or find old classmates from law school and reconnect.

www.oklahomafindalawyer.com

People from across Oklahoma visit this Web site every day in search of an attorney. How can you get your name on this list for free?

Signing up is easy – log into your account at my.okbar.org and click on the “find a lawyer” link.

www.okbar.org/oknewsbar.htm Designed with the needs of OBA members in mind, OKNewsBar has been created to allow you to quickly access new Oklahoma and U.S. Supreme Court opinions as well as up-to-date legal news and law practice management tips.

my.okbar.org On this site, you can do everything from changing your official address, enrolling in a CLE course, checking your MCLE credits and listing your practice areas on the Internet so potential clients can find you. The PIN number required is printed on your dues statement and can be e-mailed to you if the OBA has your current e-mail address.

www.okbar.org The official Web site of the Oklahoma Bar Association. It’s your one-click resource to all the information you need, including what’s new at the OBA, ethics opinions, upcoming CLE seminars, staff contacts, and section and committee information.

www.oba-net.org

Members-only interactive service. Free basic service with premium services available to enhance the member benefit. Lawyers are empowered to help each other through online discussions and an online document repository. You must agree to certain terms and be issued a password to participate in OBA-NET.

Fastcase at www.okbar.org The OBA teamed up with Fastcase in 2007 to provide online legal research software as a free benefit to all OBA members. Fastcase services include national coverage, unlimited usage, unlimited customer service and unlimited free printing — at no cost to bar members, as a part of their existing bar membership. To use Fastcase, go to www.okbar.org. Under the Fastcase logo, enter your username (OBA number) and password PIN for the myokbar portion of the OBA Web site.

www.twitter.com/oklahomabar www.twitter.com/obacle Catch the most up-to-date happenings at and around the OBA including bar events and CLE’s. You don’t even have to register. You can simply read all of our tweets by going to twitter.com/oklahomabar or twitter.com/obacle.

For all other member benefits and resources: Visit www.okbar.org/members/benefits.htm

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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.

________

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.

________

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.

________

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.

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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.

________

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.”

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

________

Wednesday Afternoon: 1:15 – 2:30 .................. OPENING CEREMONY AND KEYNOTE ADDRESS Camp Call: Honorable Lawrence Hart (Cheyenne), Traditional Cheyenne Peace Chief, Clinton, Oklahoma.

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

Presentation of Flags by Tribal Leaders.

Honor Guards: Vietnam Era Veterans Intertribal Association, Kiowa Black Leggings.

Drum: Southern Nation Singers.

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2:30 – 5:30 ............................................PANEL A: ECONOMIC CO-OPERATION, INTERNATIONAL TRADE AND INVESTMENTS [A Continuation of the Morning Panel] CO-MODERATORS: Dr. James C. Collard, Director of Planning and Economic Development, Citizen Pottawatomi Nation, Shawnee, Oklahoma.

Ms. Kay Bills, Oklahoma City, Oklahoma.

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.

________

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.

________

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

————————

________

[A Continuation of the Morning Panel]

________

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.

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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.

________ 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.

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.

________

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.

________

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.

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.”

________

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

________

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.

________

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 C: NATIVE AMERICAN EDUCATION AND SOVEREIGNTY MODERATOR: G. William Rice, Associate Professor of Law, University of Tulsa, College of Law, Tulsa, Oklahoma.

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

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

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

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

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In Memoriam

Richard B. Kells, our partner at Hartzog Conger Cason & Neville, recently passed away after an extended illness.

Rick was an outstanding lawyer. His practice, which spanned more than 30 years, focused on federal and state taxation, wealth transfer planning, wills, trusts, estates and tax controversies.

He was a widely recognized practitioner of Oklahoma tax law, known for his practice before the Internal Revenue Service and the Oklahoma Tax Commission, and for his annual Oklahoma tax update publications. He had been listed in Best Lawyers in America since 1988; in 2009 the Taxation Section of the Oklahoma Bar Association named him the Outstanding Oklahoma Tax Lawyer, the most recent of many honors.

Rick had an insatiable appetite for knowledge, especially with regard to intricate aspects of tax law. He demonstrated a unique and selfless willingness to share his efforts and expertise with other professionals in a collaborative spirit and represented the highest ideals of the legal and accounting professions. He was motivated by an unwavering commitment to provide the very best results for our clients.

Rick Kells was an exceptional lawyer and a good man. He will be missed as our partner and friend.

Richard B. Kells

CHICKASAW BAR ASSOCIATION SEMI-ANNUAL MEETING May 7, 2010 • WinStar Golf Club, Thackerville, Oklahoma

3 CLE Credit hours, including 1 hour of Ethics (Pending Approval) Agenda 8 a.m.

Registration & Continental Breakfast 8:30 a.m.

Welcome

• Mr. Jeff Keel, Esq. – Chair of the Chickasaw Bar Association

• Hon. Barbara Smith – Chief Justice of the Chickasaw Nation Supreme Court 8:45 a.m.

Chickasaw Nation District Court Admission Requirements and Jurisdiction

• Hon. Aaron Duck – District Court Judge, Chickasaw Nation District Court

• Hon. Dustin Rowe – Special Judge for the Chickasaw Nation District Court 9:30 a.m.

Practicing in the Chickasaw Nation District Court and the Supreme Court

• Mr. Wayne Joplin – Court Clerk for the Chickasaw Nation District Court

• Mr. David Ponder, Esq. – Court Advocate for the Chickasaw Nation

• Mr. Michael Smith, Esq. – Court Advocate for the Chickasaw Nation 10 a.m.

Practicing Before the Chickasaw Nation Office of the Gaming Commissioner

• Mr. Matthew L. Morgan, Esq. – Gaming Commissioner, the Chickasaw Nation 10:30 a.m. Break 11 a.m.

Ethics

• Mr. Travis Pickens, Esq. – Ethics Counsel for the Oklahoma Bar Association 12 p.m.

Lunch 1 p.m.

Swearing in of New Members to the Chickasaw Bar Association

• Hon. Barbara Smith – Chief Justice, Chickasaw Nation Supreme Court 1:30 p.m.

Adjourn The Chickasaw Nation Bar Association will host this year’s Spring CLE, at the WinStar Golf Club in Thackerville, OK. The Conference Registration is $50, and the Green Fees are $50 . For more information please contact The Chickasaw Bar Association at 580-235-0279 or 580-235-0281.

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, April 14, 2010 C-2009-640 — Petitioner, Robert Gurvis South, entered a blind plea of no contest to the offense of manufacturing an explosive device, after former conviction of a felony, in violation of 21 O.S.Supp.2005, § 1767.1, in Grady County District Court case no. CF-2008-32, before the Honorable John E. Herndon, Associate District Judge. Judge Herndon accepted the plea and, after a sentencing hearing, sentenced South to life imprisonment. The trial court sentenced accordingly. South, through counsel, filed a motion to withdraw plea. A hearing on the motion was held, and, at the conclusion of the hearing, the trial court denied South’s motion.

From this judgment and sentence, Robert Gurvis South has perfected his appeal. South’s petition for a writ of certiorari is DENIED, and the trial court’s order denying South’s motion to withdraw plea is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs.

PCD-2010-266 — Jeffrey David Matthews, Petitioner, is before the Court on his second application for conviction relief, motion for discovery, motion for evidentiary hearing and motion to defer scheduling of an execution date. A jury convicted Matthews in 1999 in the District Court of Cleveland County, Case No. CF-1995-183, of first degree murder and sentenced him to death. Matthews has challenged his Judgment and Sentence on direct appeal, in collateral proceedings in this Court, and in habeas corpus proceedings in federal court. All of these challenges have proven unsuccessful and the State of Oklahoma has asked this Court to set an execution date. Matthews has responded to the State’s application for an execution date by filing this successor post-conviction application, and the State has filed its response.

Jeffrey David Matthews’s successor application for post conviction relief is DENIED. Further, his motions for evidentiary hearing, discovery and to stay setting an execution date are DENIED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs in results; Lewis, J., concurs.

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Thursday, April 15, 2010 PCD-2006-1011 — Anthony Castillo Sanchez, Appellant, was tried by jury and found guilty of Count 1, murder in the first degree, in violation of 21 O.S.Supp.1996, § 701.7(A); Count 2, rape in the first degree, in violation of 21 O.S.1991, § 1114(A)(3); and Count 3, forcible sodomy, in violation of 21 O.S.Supp.1992, § 888(B)(3), in Cleveland County District Court, Case No. CF-2000-325. The jury sentenced Appellant to death for murder in the first degree, forty (40) years imprisonment and a $10,000 fine for rape in the first degree, and twenty (20) years imprisonment and a $10,000 fine for forcible sodomy. The Honorable William C. Hetherington, District Judge, pronounced the judgment and sentence on June 6, 2006. This Court affirmed the judgments and sentences in Sanchez v. State, 2009 OK CR 31, ___ P.3d ___. Post-Conviction Relief and a Motion for Evidentiary Hearing in accordance with Title 22 O.S.Supp.2008, section 1089. On January 26, 2009, Petitioner timely filed his Original Application for Petitioner’s Original Application for Post-Conviction Relief, Motion for Evidentiary Hearing, and Request to Conduct Discovery are DENIED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Chapel, J., Concurs.

Tuesday, April 20, 2010 F-2008-1246 — Melvin Deangelo Stanley, Appellant, was tried by jury for the crime of Manslaughter in the First Degree (Count I), Unlawful Possession of a Controlled Drug (Marijuana)(Count III), and Driving with a Suspended License (Count IV) in Case No. CF2007-4134 in the District Court of Tulsa County.

The jury returned a verdict of guilty and recommended as punishment thirty (30) years imprisonment and a fine of $5,000 on Count I, five (5) years imprisonment and a fine of $500 on Count III, and thirty (30) days imprisonment and a $500 fine on Count IV. The sentences on Count III and IV run concurrently with one another and consecutively to Count I. The trial court sentenced accordingly. From this judgment and sentence Melvin Deangelo

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Stanley has perfected his appeal. AFFIRMED. Opinion by: Per Curiam; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lumpkin, J., concur in results; Lewis, J., concur.

C-2009-720 — Petitioner Patrick Wayne Gandy was charged in the District Court of Stephens County, Case No. CF-2009-12, with Forcible Sodomy (21 O.S.Supp.2002, § 888). On April 27, 2009, Petitioner entered a blind plea of guilty before the Honorable Joe H. Enos, District Judge. Petitioner’s plea was accepted and he was sentenced to twenty (20) years imprisonment with credit for time served and a $2,500. fine. On June 29, 2009, Petitioner filed an Application to Withdraw Guilty Plea. At a hearing held on July 23, 2009, the trial court denied the application to withdraw guilty plea.

It is that denial which is the subject of this appeal. Accordingly, the order of the district court denying Petitioner’s motion to withdraw plea of guilty is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., Dissent; A. Johnson, V.P.J., Concur; Lewis, J., Dissent; Taylor, S.J., concur.

COURT OF CIVIL APPEALS (Division No. 1) Friday, April 16, 2010 106,739 — LaSalle National Bank, as Trustee for the Certificate Holders of the Mortgage Pass-Through Certificates 1998-R-1, Plaintiff/ Appellant, vs. Richard Theodore Scott and Helen Harlene Scott, Husband and Wife, et al., Defendant/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Linda G. Morrissey, Trial Judge. Appellant (Bank) as Trustee for the Certificate Holders of the Mortgage Pass-Through Certificates 1998R1, sued Appellees (Scotts) for breach of the terms of a promissory note and foreclosure of a real estate mortgage securing the promissory note. Bank contends the trial court abused its discretion during preliminary proceedings the day of trial by denying its request for a continuance for additional time to provide the trial court with the original note and mortgage.

Bank points out that during in camera preliminary proceedings, Scotts’ new counsel, for the first time, contested the authenticity of the note and mortgage, and that Bank was not the proper holder of the note and mortgage. Bank requested a continuance because it was not adequately prepared to address these issues.

The court denied Bank’s request. Bank offered a copy of the note payable to First mortgage.

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Scotts’ counsel objected, stating that Bank must produce the original note. Bank explained it had physical possession of the note “in the place where it’s kept in the ordinary course of business,” but not in the courtroom. In granting Scotts’ demurrer to the evidence, the court found that no promissory note or mortgage between the parties is in evidence before the Court for consideration and that Bank has failed to present evidence that it holds a promissory note for which Scotts are liable. The court also held that Scotts breached a contract with Bank; Scotts are in default on a promissory note held by Bank, and Bank is entitled to foreclose a mortgage on the subject property.

The court then awarded Scotts their costs and attorney fees in the sum of $55,172.51. Bank appeals. By immediately requesting a continuance, Bank’s counsel took the steps necessary to enable him to provide the trial court with the original note and mortgage. As a result, the trial court abused its discretion in denying Bank’s motion for a new trial based on its denial of Bank’s request for a continuance. The matter is REVERSED AND REMANDED FOR A NEW TRIAL. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

106,973 — Carlton Delano Mitchell, Petitioner/Appellee, vs. Carissa Rene McCullough, formerly Mitchell, Respondent/Appellant.

Appeal from the District Court of Stephens County, Oklahoma. Honorable G. Brent Russell, Judge. Carissa McCullough (Mother) appeals a post-decree order granting the motion to modify child custody filed by her former husband, Carlton Mitchell (Father), awarding Mother standard visitation, and ordering her to pay child support for their minor child.

Mother has not demonstrated the trial court’s decision resulted from any error of law nor that it is so clearly against the weight of the evidence as to be an abuse of discretion. Her request for appeal related fees is denied. The order is AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

107,482 — Roger Haglund, M.D., and Cynthia Gilbert, Plaintiffs/Appellants, vs. Jack Matthew Thomas, and Mid Town Homes, Ltd., an Oklahoma corporation, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Daman Cantrell, Judge. Plaintiffs/Appellants Roger Haglund, M.D. and Cynthia Gilbert (“Appellants”) appeal from orders granting partial summary judgment in favor of Defendants/Appellees

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Jack Matthew Thomas, Jr., and Mid Town Homes, Ltd., (collectively, “Builder”) and denying Appellants’ motion for new trial. The material facts are not in dispute. The issue of law presented is whether a house may be built on a new lot, created after an originally platted lot was split into two parcels, under a restrictive covenant allowing no more than one house on any lot. Appellants contend the covenant allows one house on any originally platted lot; Builder contends the covenant allows one house on any lot, regardless of whether the lot was set out in the original plat or was created by dividing one of the originally platted lots.

Several years before this dispute, the owner of one of the original lots split it to create two new lots. After Builder began building a single family home on one of the new lots, Appellants filed suit to enjoin construction based on the restrictive covenants in the certificate of dedication for the addition. The covenant at issue allows no more than one house “on any lot.” To the extent there is ambiguity in the meaning of “lot” in the certificate of dedication, Oklahoma law requires us to construct such ambiguity in favor of the unencumbered use of property.

The certificate of dedication does not show an intent to prohibit building one house on a latercreated lot. We therefore affirm the trial court’s decision that one single family residence may be built on Builder’s lot. AFFIRMED. Opinion

by Buettner, P.J.; Hetherington, J., concurs, and Hansen, J., dissents with opinion.

107,593 — Hewlett Packard Company and Old Republic Insurance Company, Petitioners, vs. Michael Brian Grimes and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of the Three-Judge Panel of The Workers’ Compensation Court.

Employee/Respondent Michael Brian Grimes (Grimes) was injured in a single event accident while lifting a computer server during his employment with Hewlett Packard Company (Employer/Petitioner/Hewlett Packard) April 4, 2008. Grimes also worked part-time as a music minister, first as a pianist, then as the music director beginning in January 2008.

Grimes and his pastor testified that he was not able to work to his former capacity, but was paid the same salary he received before the accident. They both characterized the job as “charity.” The trial court found the work for the church was a charitable gift, and therefore not “wages” pursuant to the Workers’ Compensation Act, precluding an overpayment Vol. 81 — No. 12 — 4/24/2010

credit for temporary total disability payments.

The three-judge panel affirmed and this Court sustains that part of the order. With respect to psychological overlay (depression), however, the three-judge panel vacated paragraph 2 of the trial court’s order which maintained the finding and order of psychological overlay (depression). Hewlett Packard appealed the psychological overlay finding on the ground that Grimes failed to present objective medical evidence to support his claim. Because the record does not contain the necessary medical evidence of psychological overlay, we vacate that part of the order. SUSTAINED IN PART AND VACATED IN PART. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

107,609 — Larry J. Loftin, Petitioner, vs. Bagcraft &/or Packaging Dynamics Corporation, Sentry Insurance Company, and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of The Workers’ Compensation Court. Honorable Gene Prigmore, Judge. Petitioner/Employee Larry J. Loftin (Loftin) sustained a single event injury while working for Respondent/Employer Bagcraft in Baxter Springs, Kansas. The Oklahoma Workers’ Compensation Court denied Loftin’s claim on the ground that it did not have jurisdiction.

It held that Loftin’s contract for employment was entered in the State of Kansas and our courts cannot assume jurisdiction over injuries occurring outside of Oklahoma unless the contract for employment was entered within the State of Oklahoma. The evidence supports this finding and we therefore sustain the order.

SUSTAINED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

107,610 — Lisa M. Reynolds, Petitioner, vs.

IC of Oklahoma LLC, International Truck & Engine Corp., Own Risk #19208, and The Workers’ Compensation Court, Respondents.

Proceeding to Review an Order of The Workers’ Compensation Court. Honorable Bob Lake Grove, Trial Judge. Petitioner (Claimant) seeks review of a Workers’ Compensation Court (WCC) order finding permanent partial disability (PPD) to her left eye. She asserts the PPD finding was a lesser degree of impairment than that dictated by proper application of WCC Rule 23 which sets forth the criteria for measuring and calculating percentage of eye impairment. The crux of our review is what is “uncorrected vision” within the meaning of Rule 23. Whether Claimant’s sight has been restored, rather than corrected, is a legal deter-

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mination. That determination, however, must be based on and supported by medical evidence, generally as to the state of medical technology regarding artificial intraocular lens implants, and specifically as to Claimant’s implant. The WCC erred as a matter of law in making its PPD finding in the absence of such evidence. The order of the WCC is vacated and this matter is remanded to WCC to reconsider its disability determination after taking further medical evidence as to whether Claimant’s left eye vision has been restored, rather than corrected, through the use of the artificial lens implant. VACATED AND REMANDED WITH INSTRUCTIONS. Opinion by Hansen, J.; Hetherington, J., concurs, and Buettner, P.J., dissents with opinion.

107,779 — KVR Energy, L.L.C., an Oklahoma Limited Liability Company, Plaintiff/Appellee, vs. Mid-Continent Oil Co., an Oklahoma Corporation, Defendant/Appellant. Appeal from the District Court of Beaver County, Oklahoma. Honorable Greg A. Zigler, Trial Judge.

Appellant (Mid-Con) seeks review of the trial court’s order granting summary judgment in favor of Appellee (KVR) in KVR’s action for breach of warranty of title in an oil and gas lease. Mid-Con contends there were disputed questions of material fact as to whether (1) the 1951 Lease was still being held by production, (2) the parties intended the Addendum to modify the warranty clause, and (3) KVR assumed the risk the 1951 Lease was held by production. The parties executed a Lease and Addendum in 2006 as parts of substantially one transaction. Therefore, we will take the two documents together in determining whether there is an ambiguity. The 2006 Lease contains a covenant of warranty. The recitals in the Addendum show the parties were concerned the SE/4 of Section 28, acreage not involved in either the 1951 Lease or the 2006 Lease but which KVR sought to lease, might be held by production. The operative clause provided Mid-Con would “under no circumstances receive less than the one fifth part of oil and gas produced” under the 2006 Lease, and KVR agreed to indemnify Mid-Con for the royalty.

As a matter of law, we hold this language is not ambiguous and does not modify the warranty of title. The evidence KVR submitted showed the existence of a producing well that held the 1951 Lease at the time the parties signed the 2006 Lease. Therefore, KVR established MidCon broke the covenant of warranty when 1108

made. Evidence KVR knew Mid-Con did not have the title as warranted would not prevent KVR from recovering on the warranty. Accordingly, KVR did not as a matter of law assume the risk the 1951 Lease was held by production.

The production evidence Mid-Con submitted, even if we assume it could be made admissible at trial with proper foundation, showed only that production was declining in 2007 and 2008 and not that the well was not producing in paying quantities at the time the parties executed the 2006 Lease. Mid-Con has failed to submit any evidence establishing a material question of fact as to whether the 1951 Lease was still being held by production at the time Mid-Con warranted title in the 2006 Lease.

AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

(Division No. 2) Wednesday, April 14, 2010 106,252— Wesley V. McDorman, Plaintiff/ Appellee, vs. American Reserve Energy Corporation, Defendant/Appellant, and David W. Holden; Dale E. Steinkuehler, CPA; Penny Jo Steinkuehler; Frank Patout; Robert Owens; Holliman, Langholz, Runnels, Holden, Forsman & Sellers; American Reserve Energy Canada Corporation; American Reserve Energy Corporation; Sandhurst Roxana Exploration, Ltd.; American Reserve Exploration Company; Tuckamore Energy LLC; Tuckamore Limited Partnership, Defendants. Appeal from Order of the District Court of Tulsa County, Hon. Ronald L. Shaffer, Trial Judge, granting summary judgment to Plaintiff McDorman against American Reserve Energy Corporation (AREC) in his action on a note. The district court also awarded McDorman attorney fees and costs.

The litigation of other issues in the case continued until McDorman’s death in 2006. The record contains a suggestion of McDorman’s death filed by his executor on January 3, 2007, but no motion to substitute a new plaintiff pursuant to 12 O.S.2001 § 2025. On August 6, 2008, McDorman’s counsel filed a motion in McDorman’s name dismissing his remaining claims.

AREC appeals the district court’s grant of summary judgment on the Note, and the award of attorney fees. We find that this Court lacks jurisdiction to consider AREC’s appeal on two bases. First, the record does not show a valid substitution of a plaintiff after McDorman’s death, and second, the dismissal AREC relies on to render the orders in question final is ineffective. APPEAL DISMISSED. Opinion from

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Court of Civil Appeals, Division II by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur.

(Division No. 3) Friday, April 16, 2010 106,473 — Department of Human Services, Plaintiff/Appellee, vs. Mark Austin, Defendant/Appellant, vs. Kelly Shadid, Third-Party Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Lisa K. Hammond, Judge. Appellant (Father) contends he is entitled to credit for child support payments he voluntarily made from February 2006 thru September 2007, during which time his minor child was also receiving social security benefits arising from Father’s disability.

Father suffered a stroke in August 2005 and became totally disabled. He continued to make child support payments in accordance with the parties’ agreement. The record reflects the Social Security Administration began paying “monthly child’s benefits” to the child in February 2006. Father argues equity entitles him to a credit for the child support payments he made from February 2006 through September 2007 to prevent Mother from “double dipping.” The record reflects that after The Department of Human Services (DHS) calculated actual income of the parties, an arrearage was determined against Father. Despite this arrearage, Father’s child support obligation was determined to be $0 due to the social security benefits the child was receiving. The DHS order expressly noted that Father’s child support obligation (both for past-due amounts owed and for future payments) was determined by consideration of the social security benefits received by the child. Thus, Father was actually afforded the credit for social security benefits received by the child in accordance with Oklahoma law. The trial court properly exercised its discretion in its denial of Father’s “Motion for Repayment of Child Support Over Payments.” AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur.

107,076 — T.K. Stanley, Inc. And Ace American Insurance, Petitioners, vs. Willie Earl Hatton, Jr., and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of the Workers’ Compensation Court. Employer seeks review of an order of a three-judge panel of the Workers’ Compensa­tion Court modifying the trial court’s award of benefits for consequential injury to Claimant. Section 22(d)(3) of title 85, O.S. Supp.

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2005, does not proscribe an award of PPD for hernia-related consequential injuries. Other than the difference of opinion between Claimant’s examining physician and the other examining physicians, Employer points to, and we discern, no omission rendering the opinion of Claimant’s examining physician incompetent to support the award. SUSTAINED. Opinion

by Joplin, P.J.; Bell, V.C.J., concurs; Mitchell, J., dissents.

107,120 — Historical Preservation, Inc., Jefferson Park Neighbors Association, Mesta Park Neighborhood Association, Heritage Hills East Neighborhood Association, Edgemere Park Preservation, Inc. And Uptown 23rd Development Association, Appellants, vs. The Oklahoma City Board of Adjustment, Appellee, and Vital Signs, Inc., Intervening Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Carolyn Ricks, Judge. Appellants appeal from the trial court’s summary judgment affirming the issuance of a sign permit by the City of Oklahoma City (City) to Intervening Defendant/Appellee (Vital). City issued a permit to Vital to erect a non-accessory sign (a billboard) on property located near the intersection of Northwest 23rd Street and Robinson (Subject Property). Appellants appealed to Appellee (Board) which overruled the appeal. Appellants filed this action in district court the same day. The court granted Vital’s motion upholding the issuance of the sign permit. Appellants contend the Oklahoma City Municipal Code §3-83(a)(2)specifically prohibits the erection of a billboard on the Subject Property because the parcel is occupied by a tavern which does not conform to use regulations of the zoning district where the parcel is located. Vital argues that pursuant to City Code §3-119, a non-accessory sign is allowed as a matter of right on property zoned C-4. We agree with Vital. Permitting Vital to construct a billboard on the Subject Property will not enlarge or extend the tavern’s non-conforming use, because the billboard, unlike an accessory sign, will not identify or display information concerning the tavern. In addition, the construction of a billboard does not require a building permit; it simply requires a sign permit. The Department of Transportation has determined the billboard was not subject to the Oklahoma Highway Advertising Control Act’s “control area” provisions prohibiting billboards within a certain distance of highway rightsof-way. Also, the City’s 23rd Street Uptown

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Corridor Overlay District ordinance was enacted a month after City issued Vital’s sign permit. Thus, the ordinance had no effect on the issuance of the sign permit. AFFIRMED. Opinion by Bell, V.C.J.; Mitchell, J., concurs; Joplin, P.J., dissents.

107,215 — City of Midwest City, Own Risk, Petitioner, vs. Ronnie Williams and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of the Workers’ Compensation Court.

Employer seeks review of an order of a threejudge panel of the Workers’ Compensation Court affirming the trial court’s award of benefits to Claimant. Employer asserts Claimant had not reached maximum medical improvement at the time of the adjudication of permanent partial disability (PPD), and argues the award was excessive. Claimant had been released for return to work without restriction, and Claimant testified that he had experienced no improvement of the residual effects of his injury for a number of months. In rating PPD, all the examining physicians tacitly agreed Claimant’s condition had sufficiently stabilized for a PPD evaluation.

Under the facts and circumstances of this case, we are unwilling to hold that, because Claimant was scheduled for a follow-up appointment with his treating physician, Claimant could not be evaluated for permanent impairment. SUSTAINED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur.

(Division No. 4) Wednesday, March 31, 2010 106,914 — Bob Chandler and Mary Chandler, Plaintiffs/Appellants, v. Gary Warner, an individual, Defendant/Appellee, and City of Ardmore, a Municipal Corporation, Defendant.

Appeal from an Order of the District Court of Carter County, Hon. Lee Card, Trial Judge, denying their petition for permanent injunctive relief. The Chandlers alleged that Warner had installed an aerobic sewer system and claimed that they suffered harm due to the operation of the sewer system. They requested permanent injunctive relief of an alleged nuisance. Although the trial court did not specifically use the term “nuisance” in its order, its findings, which in essence indicated that the sewer system did not rise to the level of a nuisance per accidens, are not contrary to the weight of the evidence. First, the Chandlers did not establish that the sewer system was unlawful. Second, the Chandlers failed to show 1110

that, under the present circumstances, the sewer system injured them or their property in such a way that would rise to the level of a nuisance. The trial court found that the totality of the evidence was insufficient to find that the sewer system constituted a nuisance. The trial court’s conclusion that the Chandlers were not entitled to injunctive relief is also not contrary to the evidence. The Chandlers presented no evidence showing that their alleged injury could not be fully compensated by money damages. Warner is only entitled to an award of attorney fees as the prevailing party if the award is authorized by statute. Here, it is not.

The trial court erred in awarding Warner attorney fees pursuant to 12 O.S.2001, § 940. The Chandlers’ action was not one to recover damages. The trial court correctly denied the Chandlers’ petition for injunction. AFFIRMED IN PART AND REVERSED IN PART. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

106,922 — Rita M. Eckler, Plaintiff/Appellee, v. Jeff D. Hollie, Defendant/Appellant. Appeal from the District Court of Oklahoma County, Hon. Donald L. Easter, Trial Judge. Jeff D. Hollie (Hollie) appeals the trial court’s victim protection order (VPO) issued against him. Hollie’s affirmative defense of res judicata was not an issue put before the trial court for adjudication, is not an issue properly before us on appeal, and is therefore waived. The trial court, after finding a dating relationship existed between the parties, entered the VPO barring Hollie from having contact with Eckler or harassing or otherwise interfering with her or her property for a period of three (3) years. We review the issue of a VPO under an abuse of discretion standard. Hollie has not shown from the record that the trial court abused its discretion in finding a dating relationship existed between the parties or that two incidents of following are sufficient to constitute stalking pursuant to 22 O.S.2001 and Supp. 2005, § 60.1(2).

AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; RAPP, J., not participating.

107,520 — David A. Roccato, Petitioner/ Appellant, v. HSBC Beneficial and American International So. Ins. Co., Respondents/Appellees. Proceeding to review an order of a threejudge panel of the Workers Compensation Court, Hon. John M. McCormick, Trial Judge.

Claimant was awarded temporary total dis-

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ability benefits for injury to his left hand. He subsequently amended his claim alleging consequential injury to his left shoulder. The trial court found the left shoulder was not a consequential injury of the left hand and denied additional benefits. A three judge panel affirmed and Claimant appealed. We find there is competent evidence to support the trial court’s finding that there was no causation between Claimant’s shoulder symptoms and his workrelated injury, and we sustain. SUSTAINED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

107,656 — Faramarz Mehdipour, Plaintiff/ Appellant, v. Greg Williams, Warden of Oklahoma State Reformatory Employee of Oklahoma Department of Corrections in Granite Oklahoma, Defendants/Appellees. Appeal from the District Court of Greer County, Hon. Richard B. Darby, Trial Judge. Faramarz Mehdipour (Prisoner) is in the custody of the Department of Corrections (DOC). Having exhausted his post-conviction remedies and been denied habeas corpus relief, Prisoner filed a civil rights action pursuant to 42 U.S.C. § 1983, seeking release from incarceration, claiming error in pre-trial and sentencing documents. The trial court correctly granted DOC’s motion to dismiss and denied Prisoner’s motion for summary judgment. A civil rights action under § 1983 cannot afford the Prisoner the relief he seeks. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

Thursday, April 1, 2010 107,339 — State of Oklahoma, ex rel. Department of Transportation, Plaintiff/Appellant, v.

Larry Gene Northcutt and Cindy Jo Northcutt, husband and wife; and the Byran County Treasurer, Defendants/Appellees. Appeal from the District Court of Bryan County, Hon. Mark R. Campbell, Trial Judge. ODOT sought to condemn a portion of Northcutts property. The trial court ordered and received a Commissioner’s Report determining just compensation for the property. No exceptions were filed by either party. Northcutts subsequently requested a second Commissioner’s Report, claiming the original Commissioners’ Report was defective because replacement housing damages were included in the compensation. The trial court ultimately granted the request and a secVol. 81 — No. 12 — 4/24/2010

ond Commissioner’s Report was filed. ODOT timely filed an exception which the court denied, resulting in this appeal. We find that when the statutory thirty (30) day period for filing an exception to the original Commissioner’s Report expired, the trial court was without authority to order or confirm a new report. It was error for the court to do so and to deny ODOT’s exception to the second Commissioners’ Report. We therefore reverse and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

Friday, April 2, 2010 107,003 — Sachiyo K. Smith, Appellant, v.

Oklahoma Tax Commission, Appellee. Appeal from the Oklahoma Tax Commission En Banc.

Taxpayer Sachiyo K. Smith appeals the March 24, 2009, order of the Oklahoma Tax Commission En Banc adopting an order entered by an administrative law judge, filed February 10, 2009, denying her request for an income tax refund. Based on our review of the facts and applicable law, we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

Thursday, April 8, 2010 106,022 — David and Hanh Anderson, Plaintiffs/Counter-Defendants/Appellants, v. Giong Van Nguyen and Mylinh Nguyen, Defendants/ Counter-Plaintiffs/Appellees. Appeal from an order of the District Court of Custer County, Hon. Charles L. Goodwin, Trial Judge, quieting title in a one-acre tract of real property to Mr. and Mrs. Nguyen. During a several year period of absence from Oklahoma, Mrs. Anderson agreed to convey one acre of the two-acre parcel she owned with her husband to the Nguyens for $4,500. The agreement was never reduced to writing; the women agreed to conclude the transaction when the Andersons returned to Oklahoma. The Nguyens proceeded to build a house on the one-acre parcel. During this period Mrs. Anderson and Mrs. Nguyen spoke on the telephone frequently about the progress of the house building. When the Andersons returned to Oklahoma, Mr. Anderson sought to quiet title to the property, asserting he never gave his wife permission to convey his interest in the property. The trial court found sufficient evi-

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dence to suggest Mr. Anderson was aware of the transaction but did not act to prevent the transfer of the property or the improvements made by the Nguyens. The trial court found that neither the statute of frauds nor application of the homestead exemption was applicable under these facts to prevent division of the property, and we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Wiseman, C.J. (sitting by designation), concurs; Gabbard, P.J., dissents.

107,464 — Jeffrey J. Noftsger, Plaintiff/Appellant, vs. Brian R. Danker and Stanton C. Harrell, d/b/a Danker and Harrell, Attorneys at Law, Defendants/Appellees. Appeal from the District Court of Tulsa County, Hon. Jefferson D. Sellers, Trial Judge, granting DefendantsAttorneys’ motion for summary judgment in this legal malpractice action. Plaintiff asserted both tort and contract theories. His tort action was subject to the two-year limitations period for torts found in 12 O.S. Supp. 2009 § 95(A)(3).

However, similar to Great Plains Federal Savings and Loan Association v. Dabney, 1993 OK 4, 846 P.2d 1088, the legal employment contract requires Attorneys to “diligently and faithfully” perform specific legal work. Thus, this claim is subject to the five-year limitations period for contracts found in 12 O.S. Supp.

2009 § 95(A)(1). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Fischer, J., concurs, and Rapp, J., not participating.

Friday, April 9, 2010 107,085 — Citation Oil & Gas Corp., Claimant/Plaintiff/Appellant, v. State of Oklahoma, ex rel., Oklahoma Tax Commission (Account Maintenance Division), Defendant/Appellee.

Appeal from an Order of the Oklahoma Tax Commission, Hon. Kris D. Kasper, Trial Judge.

Citation Oil & Gas Corp. (Citation) appeals an Order of the Oklahoma Tax Commission (OTC) which denied, in part, Citation’s application for refund of sales taxes. Citation operated three “dewatering” projects, denominated as “East Pitts Dewatering Project,” “Tatums Field Dewatering Project,” and “East Velma Middle Block Dewatering Project.” Purchases of electricity for these projects are exempt from sales taxes. 68 O.S. Supp. 2007, § 1357(31).

Citation had been paying sales taxes since the inception of these projects. On June 11, 2008, 1112

Clinton filed with OTC a refund request for sales tax paid on electricity purchased for the projects. The OTC partially approved sales tax refunds for each project and reimbursed Citation accordingly. However, OTC refunded for the three years prior to the date the refund claims were filed with OTC. Thus, the OTC refund period was for the three-year period between June of 2005 and June of 2008. As a result, Citation did not receive a refund for part of 2004 and part of 2005. The ALJ denied Citation’s protest on the ground that 68 O.S.2001, § 227, precluded refunds for a period more than three years preceding the date the refund application is filed with OTC. The statute, 69 O.S.2001, § 227(a), sets out the conditions governing a taxpayer’s filing of a claim for refund of an erroneous tax payment.

Section 227(b) limits the amount of the refund based upon the three-year provision. The OTC complied with the statute when it limited the refund to the three years period preceding the filing of the application for refund.

Therefore, the Order of the Tax Commission denying additional sales tax refunds is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

107,045 — Tonya Dunn, Petitioner/Appellant, v. James Dunn, Respondent/ Appellee. Appeal from an Order of the District Court of Tulsa County, Hon. Rodney B. Sparkman, Trial Judge. The trial court petitioner, Tonya Dunn (Mother), appeals an order denying her application for attorney fees and costs in a post-decree action against the respondent, James Dunn (Father). After an evidentiary hearing, the trial court denied Mother’s application for attorney fees and expert witness fees incurred in a post-divorce proceeding relating to the parties’ child. Mother’s position here is that Father and his counsel conducted the defense of the post-divorce proceeding so as to cause delay and to unduly obstruct the proceedings. The trial court heard conflicting views about what transpired as well as explanations and elaborations on what transpired during the course of the proceedings. The trial court’s conclusion that Mother failed to prove vexatious conduct or bad faith is not contrary to the weight of the evidence. Having reached its conclusion, the trial court correctly applied the law to the facts. Therefore, the trial court did not abuse its discretion and the judgment denying Mother’s application for fees and

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costs is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

Tuesday, April 13, 2010 106,532 — Susan Manchester, Trustee in Bankruptcy of the Estate of Tony Wayne Mosley, Plaintiff/Appellant/Appellee, v. Oklahoma Municipal Assurance Group, Defendant/Appellee/Appellant. The Bankruptcy Trustee and Oklahoma Municipal Assurance Group (OMAG) each appeal from orders of the District Court of Canadian County, Hon. Edward C. Cunningham, Trial Judge. OMAG appeals the trial court’s grant of summary judgment to Trustee on its breach of contract claim against OMAG. Trustee appeals the denial of pre-judgment interest in the second order. Also at issue is the date on which pre-judgment should begin, if awarded.

After appeal the trial court held a hearing on Trustee’s motion for costs and an attorney’s fee which was granted. OMAG filed an amended petition in error disputing the attorney’s fee and placing this order before us for resolution as well. We affirm the grant of summary judgment to Trustee on the basis that the exclusionary clause under which OMAG denied benefits to Mosley was inapplicable. We reverse the order denying Trustee pre-judgment interest, modify the date on which to begin computing interest, remand for calculation of pre-judgment interest consistent with this opinion, and affirm the amount awarded for costs and an attorney’s fee. AFFIRMED IN PART, MODIFIED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV,

by Goodman, J.; Rapp, J., concurs; Gabbard, P. J., dissents.

Friday, April 16, 2010 106,875 — Harry G. Scoufos IV and Jennifer Christine Scoufos, husband and wife, Michael A. Daffin, and Denise F. Daffin, husband and wife, J.L. Benitscheck, a married woman, Petitioners/Appellees, v. Sequoyah County Conservation District, an Oklahoma Domestic Conservancy District, Respondent/Appellant. Appeal from an Order of the District Court of Sequoyah County, Hon. Jeff Payton, Trial Judge. The trial court defendant, Sequoyah County Conservation District (SCCD), appeals an order overruling its motion for new trial presented after the trial court granted summary judgment to the plaintiffs, Harry G. Scoufos IV and Jennifer Christine Scoufos, husband and wife, Michael Vol. 81 — No. 12 — 4/24/2010

A. Daffin and Denise F. Daffin, husband and wife, and J. L. Benitscheck (collectively, Landowners). Landowners, as husband and wife, or individually, each own a tract of land burdened by an easement in favor of SCCD. The easements were obtained in connection with the original construction of the flood control projects and to provide for flowage of water, so that the physical land area exceeded that needed solely for the structures. SCCD determined that the flood water structures were in need of rehabilitation. The Landowners’ claimed that the rehabilitation work was not “operation, maintenance and inspection” of the structures and is greater in size and scope than the construction completed under the original easement and work plan. In addition, Daffin asserted that downstream water flow after the rehabilitation project would cut off access to approximately two acres of property. The first proposition argued that 27 O.S. Supp. 2008, § 3-3-411(B), which became effective after the summary judgment motions were filed, clarified that operation and maintenance of a flood control structure included “rehabilitation” of the structure.

SCCD next asserted that the “operation and maintenance” phrase in the easements together with other language is broad enough to encompass the current rehabilitation projects. SCCD maintained that the trial court had no basis for enjoining SCCD from constructing the rehabilitation projects. The parties created these easements to allow construction on the affected lands of structures specifically designed to retard flood waters and to provide for impoundment and flowage of water. The record shows, without dispute, that SCCD proposes to construct larger structures and increase the impoundment and flowage area, albeit still on the geographical area described in the easements. In addition, SCCD has not disputed Daffin’s claim that downstream water flow after the rehabilitation project would cut off access to approximately two additional acres of property.

The amended version of Section 3-3-105(A)(7) may not be applied to expand an easement in a manner not originally intended by the parties at the time of its grant. The term “operation and maintenance” cannot be read to include the current “rehabilitation” project when the term is given its plain and clear meaning in the context of a flood water retarding project. The injunction must be, and is hereby, modified to provide that SCCD is enjoined from undertaking the rehabilitation projects on the property of Landowners unless and until SCCD obtains sufficient

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easements allowing it to do so. AFFIRMED AS MODIFIED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

Monday, April 19, 2010 107,329 — Light Bulb Supply Company, Inc., an Oklahoma Corporation, Plaintiff/Appellant, v. Travelers Property Casualty Company of America, a foreign corporation, Defendant/ Appellee. Appeal from an Order of the District Court of Oklahoma County, Hon. Barbara G. Swinton, Trial Judge, granting the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment and Brief in Support of Defendant in this breach of contract action. Plaintiff asserts in its Petition that it sustained water damage on January 13, 2006. However, Plaintiff did not file its Petition until February 11, 2009, clearly more than two years “after the date on which the direct physical loss or damage occurred,” as stated in the insurance policy.

Plaintiff did not file its claim within the time specified by the insurance policy and was barred from bringing this action outside the applicable statute of limitation. This Court finds the trial court did not err in finding that this action was “barred by the applicable statute of limitations” and in granting summary judgment in favor of Defendant and against Plaintiff. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

Tuesday, April 20, 2010 107,697 — Carlton E. Sallee, Plaintiff/Appellant, vs. Oklahoma Department of Wildlife Conservation, Defendant/Appellee. Appeal from Order of the District Court of Oklahoma County, Hon. Patricia G. Parrish, Trial Judge, dismissing Plaintiff’s age discrimination lawsuit against a state agency for failure to comply with the Oklahoma Governmental Tort Claims Act. Because § 156(B) of the GTCA deprives victims of age discrimination of a remedy against the state after one year, while victims of handicap discrimination have a remedy for an additional year under the Oklahoma Anti-Discrimination Act, 25 O.S.2001 § 1901, we conclude that GTCA § 156(B) creates a “dichotomous division of discrimination remedies” among members of the same class in violation of Art. 5, §46 of the Oklahoma Constitution. Tate v. Browning-Ferris, Inc., 1992 OK 72, ¶ 18, 833 P.2d 1218, 1229-30. We hold that § 156(B) of the GTCA does not apply to a wrongful termination tort claim, per Burk v. K1114

Mart Corp., 1989 OK 22, 770 P.2d 24, alleging status-based discrimination by a state agency in violation of 25 O.S.2001 § 1302. Such claims are subject to the general statute of limitations for torts set forth at 12 O.S.2001 § 95(A)(3), i.e., a two-year limitations period equivalent to that afforded victims of handicap discrimination by OADA §1901. Because Plaintiff filed his claim within this two-year period, the trial court erred in dismissing his petition. REVERSED AND REMANDED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs; and Rapp, J., not participating.

105,836 — Jack Rothrock and Mary Rothrock, Plaintiffs/Appellees, vs. Harold Keith Hartley, Gilbert Huffman, Elsie K. Wood, if living, and Harold Keith Hartley, Gilbert Huffman, and Elsie K. Wood, if deceased, their unknown heirs, assigns and successors, and State of Oklahoma ex rel. Oklahoma Tax Commission, Defendants, and Sandra L. Hartley Benefield, Petitioner/ Appellant. Appeal from the District Court of Cherokee County, Hon. Bruce Sewell, Trial Judge, dismissing with prejudice Appellant’s petition to vacate a 1993 judgment quieting title to property in Appellees. The evidence shows the judgment was not void on the face of the judgment roll. Appellant failed to present a record that overcomes the presumption of correctness of the judgment. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

ORDERS DENYING REHEARING (Division No. 1) Friday, April 2, 2010 107,550 — In the Matter of the Estate of Bill J. Eisenhour, deceased, Janice M. Boyne, Appellant, vs. Heritage Trust Company, Appellee.

Appellee’s Petition for Rehearing filed March 23, 2010 is DENIED. (Division No. 3) Thursday, March 25, 2010 106,712 — Pangaea Exploration Corporation, Successor to Mickey J. Overall, Plaintiff/Appellee, vs. Sarah Ryland, Marie Billings, Grace Arlene Billings, Barbara Ann Gill, Ross Lee Thomas, Judith Marie Teeple, Mildred Ellis, Georgia Burlingame, Jacob W. Blevins, Ruth M. Blevins, Bill Dolan, Barth Campbell, Denise Campbell, Kevin Campbell, James Lynn Blevins, Roy Phillip Blevins, Arleta Gayle Blevins, Steven Ellis Blevins, Michelle Blevins,

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Jeffery Kent Blevins, David M. Blevins, Elizabeth Billings, Phern Billings, and John M. Billings, Defendants/Third-Party Plaintiffs/ Appellants, vs. Oklahoma Title & Closing Company, Inc., Third-Party Defendant/Appellant. Defendants/Third-Party Plaintiffs/Appellants’ Petition for Rehearing filed February 12, 2010 is DENIED. (Division No. 4) Monday, March 29, 2010 106,668 — Regina Justice, Plaintiff/Appellee, v. Life-Stat Ambulance Service, Defendant, Scottsdale Insurance Company, Garnishee/ Appellant. Appellee’s Petition for Rehearing is here DENIED.

Friday, April 2, 2010 106,494 (Cons. w/106,496) — Devon Energy Production Company, LP, Plaintiff/Appellee, vs. ConocoPhillips Company f/k/a Phillips Petroleum Company, Defendant/Appellant, and Kerr-McGee Corporation and Kerr-McGee Operating Corporation, Third-Party Defendants. The Petition for Rehearing and Brief in Support by Defendant/Appellant, ConocoPhillips Company, filed March 25, 2010, is DENIED. Friday, April 9, 2010 106,008 — Jimmy Allen Richardson, dba Eastside Motors, Curtis Young, and Kenny Anderson, Plaintiffs/Appellees v. Robert Steven Babb, Gregory L. Babb, and Clifton O. Babb, et al., Defendants/Appellants. Appellant’s Petition for Rehearing is DENIED.

Custom Designed Binders for your Oklahoma Bar Journal Attractive, durable binder will keep your Bar Journals accessible and provide easy storage for 12 issues.

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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.

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PERIMETER CENTER OFFICE COMPLEX, located at 39th and Tulsa currently has offices available ranging from 1,098 – 2,116 square feet. We are offering two months free rent on a three or five year lease contract.

We also have executive suites leasing from $200 to $425 per month. Please call (405) 943-3001 for appointment, or stop by M – F between the hours of 8 a.m. – 5 p.m.

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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.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE

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.

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.

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.

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.

THE OKLAHOMA STATE DEPARTMENT OF HEALTH IS SEEKING A GENERAL COUNSEL. Reporting directly to the Commissioner, this position performs highly responsible administrative and professional legal work in directing and coordinating the operations and functions of all legal services. Also directs the preparation of cases for court, the drafting of legislation, and serves as the internal advisor. Education and Experience: Graduate of an accredited law school; active membership in the Oklahoma Bar Association and a minimum of five (5) years in practice of law, including three (3) years experience as a senior attorney responsible for the management of a legal office or department. Travel required. Salary: $95K per year DOQ, plus full benefits. To review a complete position announcement visit www.health.ok.gov and contact Lisa Dennison by email at employment@health.ok.gov, by fax at (405) 271-3539, or by mail at: Oklahoma State Department of Health, Attn: Lisa Dennison, 1000 N.E. 10th St., Oklahoma City, OK 73117. AA/EEO. 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.

LITIGATION LAW FIRM (CIVIL AND DOMESTIC RELATIONS) seeks Oklahoma licensed attorney with 0-3 years’ experience. Contract labor position with option of full-time employee. Must be self-disciplined and goal-oriented. Requirements: Top half of graduating class, excellent research and writing skills. Interested applicants must forward cover letter, resume, transcript and writing sample to “Box Q,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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.

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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.

PRAY WALKER IS SEEKING AN ASSOCIATE with 5 to 8 years of litigation experience to work in the area of commercial litigation. The successful candidate should have excellent writing and verbal skills and trial experience in complex commercial disputes in various areas of the law. Applicants should send their resume and writing samples to Managing Partner, Pray Walker, 100 West 5th Street, Suite 900, Tulsa, OK 74103.

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.

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• AV® Martindale-Hubbell Rating, the highest rating for ethics and competency • 38 years experience in handling only personal injury cases • Practice limited to Catastrophic Injuries • Many successful multi-million dollar verdicts and settlements • Recognized on national television in the U.S. and Great Britain • Recognized in Time, Star, TWA in Flight, and other magazines • Recognized in newspapers in the U.S., Japan, and other countries • Licensed to practice in Oklahoma, Texas, Michigan and Pennsylvania • Member Oklahoma Trial Lawyers Association and American Association for Justice (formerly Association of Trial Lawyers of America)

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