Volume 81 u No. 3 u January 30, 2010
OBA DAY at the CAPITOL
Don’t miss this years’ opportunity to visit with members of your Okla. Legislature as part of the OBA Day at the Capitol to get up-to-speed on the OBA legislative agenda. Register and meet at the Oklahoma Bar Center for the day’s briefing at 10:30 a.m. Lunch will be provided at noon. After lunch, head to the Capitol to visit with the legislators and attend a reception at the bar center at 5 p.m.
Tuesday, March 2, 2010 10:30 - 11 a.m.
Registration
11 - 11:10 a.m. Welcome — Allen M. Smallwood, President, Oklahoma Bar Association 11:10 - 11:25 a.m. Comments Re: Funding for the Courts — Chief Justice James E. Edmondson, Oklahoma Supreme Court 11:25 - 11:40 a.m. Legislation of Interest — Duchess Bartmess, Chairperson, Legislative Monitoring Committee 11:40 - 11:55 a.m. Oklahoma Association for Justice — Reggie Whitten, President, Oklahoma Association for Justice 11:55 a.m. - 12:10 p.m. Break — Lunch Buffet (Provided, please RSVP to debbieb@okbar.org) 12:10 - 12:25 p.m. Oklahoma Lawyers Association — Thad Balkman 12:25 - 12:35 p.m. Legal Aid — Status of Funding — Laura McConnell-Corbyn, LASO, Board Member Liaison OCBA 12:35 - 12:45 p.m. Bills on OBA legislative agenda — John Morris Williams 12:45 - 1 p.m. Legislative Process and Tips on Visiting with Legislators — David Braddock 1 - 5 p.m.
Meet with Legislators
5 - 7 p.m. Legislative Reception — Oklahoma Bar Center, Emerson Hall
Please RSVP if attending lunch to: debbieb@okbar.org, or call (405) 416-7014
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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
BAR Center Staff
John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Communications; Craig D. Combs, Director of Administration; Travis Pickens, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Rick Loomis, Director of Information Systems; Beverly S. Petry, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; Loraine Dillinder Farabow, Debbie Maddox, Ted Rossier, Assistant General Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Nina Anderson, Manni Arzola, Debbie Brink, Melissa Brown, Brenda Card, Sharon Dotson, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Jeff Kelton, Durrel Lattimore, Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Tracy Sanders, Mark Schneidewent, Robbin Watson, Laura Willis & Roberta Yarbrough
EDITORIAL BOARD Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: P. Scott Buhlinger, Bartlesville; Dietmar K. Caudle, Lawton; Sandee Coogan, Norman; Emily Duensing, Tulsa; Thomas E. Kennedy, Enid; Pandee Ramirez, Okmulgee; James T. Stuart, Shawnee; Leslie D. Taylor, Oklahoma City; January Windrix, Poteau NOTICE of change of address (which must be in writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads, news stories, articles and all mail items should be sent to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. Oklahoma Bar Association (405) 416-7000 Toll Free (800) 522-8065 FAX (405) 416-7001 Continuing Legal Education (405) 416-7006 Ethics Counsel (405) 416-7055 General Counsel (405) 416-7007 Law-related Education (405) 416-7005 Lawyers Helping Lawyers (800) 364-7886 Mgmt. Assistance Program (405) 416-7008 Mandatory CLE (405) 416-7009 OBJ & Communications (405) 416-7004 Board of Bar Examiners (405) 416-7075 Oklahoma Bar Foundation (405) 416-7070
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events Calendar FEBRUARY 2010 2
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OBA Law-related Education Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact: Jack G. Clark Jr. (405) 232-4271 OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: H. Terrell Monks (405) 733-8686 Oklahoma Trial Judges Association Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: A.J. Henshaw (918) 775-4613 OBA Law Day Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Tina Izadi (405) 521-4274 Oklahoma Bar Foundation Awards Committee Meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 Association of Black Lawyers Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donna Bacy (405) 424-5510 OBA Board of Editors Meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Carol Manning (405) 416-7016 OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Amy Wilson (918) 439-2424 OBA Closed – President’s Day OBA Civil Procedure Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: James Milton (918) 591-5229 OBA Law-related Education Close-Up; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack Brown (918) 581-8211 OBA Law-related Education Close-Up; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024 OBA Access to Justice Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Kade A. McClure (580) 248-4675 OBA Law-related Education Close-Up Teachers Meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024
For more events go to www.okbar.org/news/calendar.htm The Oklahoma Bar Association’s official Web site:
www.okbar.org
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2010 2008 Oklahoma Bar Association. The design of the scales and the “Oklahoma Bar Association” encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. The Oklahoma Bar Journal (ISSN 0030-1655) is published three times a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER: Send address changes to THE OKLAHOMA BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscriptions are $55 per year except for law students registered with the Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.
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Events Calendar Index to Court Opinions Supreme Court Opinions Court of Criminal Appeals Opinions Court of Civil Appeals Opinions
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Index To Opinions Of Supreme Court 2010 OK 4 GLENN COFFEE, President Pro Tempore of the Oklahoma State Senate and CHRIS BENGE, Speaker of the Oklahoma House of Representatives, Petitioners, v. BRAD HENRY, Governor of the State of Oklahoma, Respondent. No. 106,839........................ 1 6 1 2009 OK 98 In re Amendment to 12 O.S. Ch. 15, App. 1, Rule 1.14 of the Rules of the Oklahoma Supreme Court. S.C.A.D. No. 2009-103........................................................................ 1 8 2 2010 OK 2 JERRY R. FENT, as taxpayer and citizen paying court costs in District Courts and all other similar parties/persons, Petitioner, v. STATE OF OKLAHOMA, ex rel., DEPARTMENT OF HUMAN SERVICES; and HOWARD H. HENDRICK, in his official capacity as the Director of the Department of Human Services; and GERRI WEBB, ANETA WILKINSON, JAY DEE CHASE, BOB RAWLINGS, RICHARD DeVAUGHN, PATRICE DOUGLAS, RON MERCER, GEORGE YOUNG, and MIKE PECK in their official capacity as Commissioners of the Department of Human Services; and STATE OF OKLAHOMA, ex rel. OFFICE OF THE ATTORNEY GENERAL and W.A. DREW EDMONDSON, Attorney General, in his official capacity as a State Administrator, and STATE OF OKLAHOMA, ex rel. OFFICE OF OKLAHOMA COUNTY DISTRICT COURT CLERK, and PATRICIA PRESLEY in her official capacity as Oklahoma County District Court Clerk, and all other 76 District Court Clerks of the State of Oklahoma, Respondents. Case No. 107,116..................................................................................... 1 8 3 2010 OK 1 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION Complainant, v. EDDIE MICHAEL POPE Respondent. Case Number: SCBD #5486; OBAD #1776 Consolidated w/OBAD #1802; SCBD #5570........................................................................ 1 9 0 2010 OK 5 ESTATE OF EVA JUNE CROWELL, DECEASED, by and through ANNA M. BOEN, Personal Representative, Plaintiff/Appellant, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CLEVELAND, STATE OF OKLAHOMA, DEWAYNE BEGGS, as Sheriff of Cleveland County, State of Oklahoma; DEPUTY JEANNE ANN BECK; DEPUTY KENNETH ALBRECHT; and CORPORAL MICHAEL STEVENSON, Employees of the Cleveland County Sheriff’s Office, Defendants/ Appellees, and DEPUTY APRIL LYNN CUMMINS and CORPORAL MICHAEL DEAN EASLEY, Defendants. No. 106,374........................................................................................ 1 9 1 2010 OK 3 MARK ROGERS, TERRY O’RORKE and WILLIAM WILSON, on behalf of themselves and all others similarly situated Plaintiffs v. QUIKTRIP CORPORATION, LOVE’S TRAVEL STOPS & COUNTRY STORES, INC., AND 7-ELEVEN, L.L.C. Defendants No. 106,684....................................................................................................................... 1 9 9 Index To Opinions Of Court of Criminal Appeals Bell v. State of Oklahoma Case No. PC-2009-894................................................................................... 2 0 8 2010 OK CR 1 JEFFERY ALFONZO OWENS, Appellant, v. STATE OF OKLAHOMA, Appellee. Case No. F-2008-530........................................................................................................... 2 0 8
Index To Opinions Of Court of Civil Appeals 2009 OK CIV APP 94 TYSON GIRDNER, Plaintiff/Appellant, v. BOARD OF COMMISSIONERS OF CHEROKEE COUNTY, Defendant/Appellee. Case No. 106,295.........................? ? ? 2009 OK CIV APP 96 STATE OF OKLAHOMA, Plaintiff/Appellee, v. RYAN LEE GILLE, Defendant/Appellant. Case No. 106,016...........................................................................................? ? ? 2009 OK CIV APP 93 CHARLES E. GREGG, INDIVIDUALLY, Plaintiff/Appellant v. LE 158
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MARS INSURANCE COMPANY, Defendant/Appellee Case No. 106,379.................................? ? ? 2009 OK CIV APP 92 J.S., Individually, and as Parent and Next Friend of C.S., a Minor Child, Plaintiff/Appellee, v. BRADLEY JOE HARRIS, Defendant, and VIVIAN WILLIAMS, Defendant/Appellant. Case No. 105,004............................................................................? ? ? 2009 OK CIV APP 101 RAVEN RESOURCES, L.L.C., and DAVID A. STEWART and TERRY P. STEWART, Plaintiffs/Appellants, v. LEGACY BANK; R. STEPHEN CARMACK; SAMUEL CARMACK; LORIE CARMACK; DAN HAYNES; PATRICIA ROSS; KENNETH ROSS; RICHARD HORTON; JACQUELINE BRADSHAW; CONNIE FRAZIER; and JOHN DOES 1-10 and PERSONS UNKNOWN, Defendants/ Appellees. Case No. 106,203................................................................................................................? ? ? 2009 OK CIV APP 104 JACK HOPKINS, Plaintiff/Appellant, v. WILLIE WEST, Defendant/Appellee. Case No. 105,428.......................................................................................................? ? ? 2009 OK CIV APP 100 MILES L. MITZNER, Plaintiff/Appellant, v. HAROLD L. POAGE, MIRACLE PRODUCTION, INC., AND YDF, INC., Defendants/Appellees. Case No. 106,103.....................................................................................................................................................? ? ? 2009 OK CIV APP 102 LUCINDY ANN MOSS, individually and as parent and next friend of ARTHUR JACKSON ADNEY, a minor, Plaintiff/Appellant, v. MICHAEL WITTMER and THELMA WITTMER, Defendants, v. OKLAHOMA HEALTH CARE AUTHORITY, Appellee. Case No. 106,407........................................................................................? ? ? 2009 OK CIV APP 98 Phillip Kennedy, Plaintiff/Appellant, v. BNSF RAILWAY CORPORATION f/k/a BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant/Appellee. Case No. 107,412............................................................................................? ? ? 2009 OK CIV APP 103 IN THE MATTER OF THE ADOPTION OF M.A.R. and C.A.R., Minor Children. JEFFERY PRICE RODGERS, Natural Father, Appellant, v. NANCY PIERCE, Natural Mother, and CHRISTOPHER PIERCE, Stepfather and Prospective Adoptive Father, Appellees. Case No. 106,648.................................................................................? ? ? 2009 OK CIV APP 95 MITCH W. HOWARD, Petitioner, v. ACI DISTRIBUTION SOUTH, TRAVELERS INDEMNITY COMPANY OF AMERICA and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 105,496..................................................................? ? ? 2009 OK CIV APP 105 FINANCE & INVESTMENT CO., LTD., an Oklahoma limited liability company; THOMAS O. GOLDSWORTHY, an individual; FREMONT EXPLORATION, INC., an Oklahoma corporation; and FREMONT INVESTMENT COMPANY, an Oklahoma corporation, Plaintiffs/Appellants, v. UMA, L.L.C., an Oklahoma limited liability company; JACOB TECHNOLOGIES, INC., an Oklahoma corporation d/b/a SABRE TECHNOLOGY, INC., Defendants/Appellees, and SAINT ANDREWS PROFESSIONAL PARK, INC., an Oklahoma corporation, Defendant/Appellee, and THE GREENS HOMEOWNERS ASSOCIATION, INC., a non-profit corporation, Third-Party Plaintiff. Case No. 105,914; (consolidated with 105,963)...........................................? ? ? 2009 OK CIV APP 106 CARROL L. BUNCH, Plaintiff/Appellee, v. RUSSELL E. TERPENNING d/b/a SIGNATURE REAL ESTATE & FINANCE, GOLDEN YEARS INVESTMENTS L.L.C., KELLER HEATING AND AIR CONDITIONING INC., and DAN KELLER, Defendants/Appellants. Case No. 106,725......................................................................? ? ?
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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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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 4 GLENN COFFEE, President Pro Tempore of the Oklahoma State Senate and CHRIS BENGE, Speaker of the Oklahoma House of Representatives, Petitioners, v. BRAD HENRY, Governor of the State of Oklahoma, Respondent. No. 106,839. January 26, 2010 ¶0 Proceeding to assume original jurisdiction to resolve a dispute between the Legislature and Governor over use of the line item veto provided by Okla Const. Art. 6, § 12. ORIGINAL JURISDICTION ASSUMED, OKLA. CONST. ART. 7, § 4; DECLARATORY RELIEF GRANTED, HOLDING GOVERNOR MAY USE LINE ITEM VETO IN REVIEW OF BILLS THAT ADD CONDITIONS OR RESTRICTIONS TO PREVIOUSLY APPROPRIATED FUNDS. Fred Morgan, Oklahoma City, Oklahoma, Cheryl Ann Purvis, Staff Counsel, Oklahoma State Senate, Oklahoma City, Oklahoma, Lee Slater, Oklahoma City, Oklahoma, Amy L. Alden, General Counsel, Oklahoma House of Representatives, Oklahoma City, Oklahoma, for Petitioners. D. Kent Meyers, Harvey D. Ellis, Molly H. Tolbert, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, Stephen Cortes, General Counsel, Governor Brad Henry, Oklahoma City, Oklahoma, for Respondent. REIF, J. ¶1 The President Pro Tempore of the Oklahoma Senate and the Speaker of the Oklahoma House of Representatives have petitioned this Court to assume original jurisdiction. They ask this Court to resolve their dispute with the Governor over use of the line item veto provided by Okla. Const. Art. 6, § 12. The Legislative Leadership specifically complains about two instances in the last Legislative session where the Governor used the line item veto to reject provisions in two bills — S.B. 1323 and H.B. 2286. The Legislative Leadership characterizes these bills as “general bills.” They contend that use of the line item veto is limited to Vol. 81 — No. 3 — 1/30/2010
“appropriation bills.” The Legislative Leadership asks this Court to issue a declaratory judgment that interprets Art. 6, § 12 as limiting the Governor’s use of the line item veto to “appropriation bills,” that is, bills that deal exclusively with appropriations. While the distinction between “general bills” and “appropriation bills” may be determinative in other contexts, the language of Art. 6, § 12 is determinative of the controversy at hand. ¶2 The text of Okla. Const. Art. 6, § 12 reads as follows: Every bill passed by the Legislature, making appropriations of money embracing distinct items, shall, before it becomes a law, be presented to the Governor; if he disapproves the bill, or any item, or appropriation therein contained, he shall communicate such disapproval, with his reasons therefor, to the house in which the bill shall have originated, but all items not disapproved shall have the force and effect of law according to the original provisions of the bill. Any item or items so disapproved shall be void, unless repassed by a twothirds vote, according to the rules and limitations prescribed in the preceding section in reference to other bills: Provided, That this section shall not relieve emergency bills of the requirement of the three-fourths vote. Nothing in the language of this provision reflects that it is limited to bills that deal exclusively with appropriations; rather, the language plainly indicates it applies to “Every bill... making appropriations... embracing distinct items.”(Emphasis added.) ¶3 The term “every” ordinarily means “any” or “all” and suggests a broad expansive meaning, Christianson v. City of Bismark , 476 N.W. 2d 688 (N.D. 1991); it is considered a term of inclusion. See Rockfield v. First Nat. Bank of Springfield, 83 N.E. 392 (Ohio 1907). Clearly, the scope of Art. 6, § 12 goes well beyond just bills that deal exclusively with appropriations and extends to any and all bills that “mak[e] appropriations...embracing distinct items.”
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¶4 Examination of S.B. 1323 and H.B. 2286 reveals that each of these bills “mak[e] appropriations...embracing distinct items.” That is, S.B. 1323 added conditions and restrictions for the expenditure of funds previously generally appropriated to the Department of Corrections, while H.B. 2286 added a restriction on the use of funds previously appropriated to the Ethics Commission to purchase computer software. These additions “mak[e] appropriations” because they materially change the predicate authorization for such funds to be paid out of the State treasury as provided in Okla. Const. Art. 5, § 55. This constitutional provision commands, in pertinent part, that “No money shall ever be paid out of the treasury of this State... except in pursuance to an appropriation by law.” The restrictions in S.B. 1323 and H.B. 2286 necessarily affect the payment of funds out of the State treasury for the items embraced, because the funds in question cannot be paid out contrary to the restrictions. Stated another way, these restrictions supplement the original general appropriations and govern the payout of funds on the items they embrace. ¶5 In summary, the framers of the Oklahoma Constitution provided a classic system of checks and balances for the expenditure of public funds. The framers first required expenditures to be based on bills that make appropriations and made any and all such bills subject to the scrutiny and line item veto of the Governor, including bills that materially change prior appropriations by adding conditions or restrictions that affect the payout of the funds from the State treasury. The framers clearly intended the Governor to play a critical role at every stage of the appropriations process. As a counter-check or balance on the exercise of line item veto power by the Governor, the framers authorized the Legislature to repass a “bill, or any item or appropriation therein” that the Governor may have disapproved. ¶6 Accordingly, this Court assumes original jurisdiction of this dispute between the Legislature and the Governor over the exercise of their respective constitutional powers in regard to the making and approval/disapproval of appropriations of public funds. We enter a declaratory judgment that (1) rejects the challenge by Legislative Leadership to the Governor’s use of line item veto power in review of bills that add conditions or restrictions to funds that have been previously appropriated and (2) holds the Governor may use the line item veto 162
provided in Art. 6, § 12 in review of bills by the Legislature that add conditions or restrictions to previously appropriated funds, because such bills form a part of the predicate appropriation for the payout of funds from the State treasury as provided in Art. 5, § 55. ORIGINAL JURISDICTION ASSUMED, OKLA. CONST. ART. 7, § 4; DECLARATORY RELIEF GRANTED, HOLDING GOVERNOR MAY USE LINE ITEM VETO IN REVIEW OF BILLS THAT ADD CONDITIONS OR RESTRICTIONS TO PREVIOUSLY APPROPRIATED FUNDS. ¶7 EDMONDSON, C.J., KAUGER, WATT, COLBERT, and REIF, JJ., concur. ¶8 TAYLOR, V.C.J., HARGRAVE, OPALA, and WINCHESTER, JJ., dissent. KAUGER, J., concurring: ¶1 I fully concur with the majority. It holds that every bill making appropriations is subject to the Governor’s line-item veto. Although our previous cases may not be written in the clearest language, when they are clearly analyzed there is no question that the Governor vetoed appropriation bills. ¶2 However, there is another rationale for reaching this conclusion. Because HB 2286 and SB 1323 supplement and amend appropriations made in the general appropriations bill HB 2276, the appropriations were incorporated into the subsequent bills, thus subjecting them to the Governor’s line-item veto. In Opinion of the Justices to the Governor, 370 N.E.2d 1350 (Mass. 1977), the State of Massachusetts reached the same result in a similar case. The opinion provides at p. 1352: Each new item sets apart from the public revenue a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object and for no other. It is therefore an appropriation. . . . The Legislature cannot narrow the Governor’s power to disapprove such an item by stating it in words and phrases rather than in figures. If the Governor could not veto such a new item the way would be open for evasion of the item veto by a two-step process. The Legislature could first make a noncontroversial appropriation. Once that was enacted, it could then insert the controversial
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restriction as a separate section in an essential supplementary appropriations bill.1 (Citations omitted.) This should be the end of the discussion. However, I am compelled to write further to address our precedents. ¶3 Here’s what happened. On April 29, 2008, the Governor of the State of Oklahoma approved House Bill No. 2276, a general appropriation bill which appropriated money for the expenses of various agencies of the executive, legislative, and judicial departments of the state. Included in the money appropriated by H.B. No. 2276 were appropriations to the Ethics Commission and the Department of Corrections.2 Subsequently, the Legislature, in House Bill 2286 and Senate Bill 1323, sought to define the object of the appropriation by purporting to impose detailed constraints regarding the funds previously appropriated by H.B. 2276. ¶4 The Governor vetoed the legislative mandate within H.B 2286 for the Ethics Commission which required it to use a specified amount of its appropriation to purchase particular computer software, and he vetoed the legislative mandate within S.B. 1323 for the Department of Corrections to “budget” specified amounts of its appropriation for delineated purposes. The petitioners, the President Pro Tempore of the Senate and the Speaker of the House, brought this original proceeding in this Court to challenge the Governor’s ability to exercise such a line-item veto. ¶5 The Petitioners argue that H.B. 2286 and S.B.1323 are not appropriation bills subject to the Governor’s veto authority as provided by the Oklahoma Constitution art. 6 §12 which provides: Every bill passed by the Legislature, making appropriations of money embracing distinct items, shall, before it becomes a law, be presented to the Governor; if he disapproves the bill, or any item, or appropriation therein contained, he shall communicate such disapproval, with his reasons therefor, to the house in which the bill shall have originated, but all items not disapproved shall have the force and effect of law according to the original provisions of the bill. Any item or items so disapproved shall be void, unless repassed by a two-thirds vote, according to the rules and limitations prescribed in the preceding section in referVol. 81 — No. 3 — 1/30/2010
ence to other bills: Provided, That this section shall not relieve emergency bills of the requirement of the three-fourths vote. This provision involves the Governor’s authority to line-item veto “appropriations of money embracing distinct items.” Over 100 years after the enactment of this Constitutional provision, the Court still cannot unanimously agree upon what an appropriation of money embracing distinct items means — perhaps because the definition seems so simple. The Constitution does not define “appropriation,” but according to the dictionary it means “money set aside as for a specific purpose.”3 The Legislature has adopted the same definition. It defines “appropriation” as “a legislative allocation of funds for a specific purpose.”4 ¶6 The precise question is whether two bills which add conditions and restrictions for the expenditure of funds previously generally appropriated meet that definition; the majority concludes that it does. Why? Because the bills supplement the original general appropriation bill and govern the payment of funds on the items they embrace — thus coming within the term “every appropriation.” To construe these measures any other way would defy what the framers of the Oklahoma Constitution were attempting — to provide a classic system of checks and balances for the expenditures of public funds. ¶7 The only way to sort this out is to start at the very beginning. The Oklahoma Constitution art. 5 §55 also uses the words “appropriation by law.”5 In 1910, the syllabus of Court in Menefee v. Askew, 1910 OK 47, 107 P.159, first defined6 “appropriation” as: 1. STATE FINANCE — “Appropriation.” An “appropriation” in this state is an authority of the Legislature, given at the proper time and in legal form to the proper officers, to apply a distinctly specified sum, from a designated fund out of the treasury in a given year, for a specified object or demand against the state. In other words: money set aside (by the Legislature) for a specific purpose. Here, the Legislature set aside money for the Department of Corrections to use in a particular year, and it set aside money for the Ethics Commission to use for computer software only. ¶8 The second syllabus of Menefee is particularly helpful. It provides:
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2. STATE FINANCE — Appropriation — Form. No arbitrary form of expression or particular words are required by the Constitution in making an appropriation, which may be made by implication when the language employed reasonably leads to the belief that such was the intention of the Legislature. (Emphasis supplied.) The Okla. Const. art. 6 §12 is an exception to the Governor’s veto power, and the Menefee Court recognized that there may be attempts by future Legislatures to bypass the Governor’s ability to line-item veto by artfully crafting legislation that, at first glance, may not appear to be an express appropriation of any funds. ¶9 The exception to the rule is what this is all about. It is the exact situation which the Menefee Court foresaw. The legislation at issue appropriated funds and then added conditions and restrictions to the expenditure of the funds. Taken collectively, the legislation reasonably leads one to the finding that the intention of the Legislature was to make an appropriation, but carefully bypass the Governor’s ability to line-item veto by splitting the appropriation into multiple bills. In fact, as the language in Menefee shows, Menefee actually supports this conclusion. ¶10 However, Menefee alone is not dispositive, because it involved a direct, specific, sumcertain appropriation for the salary of the Game and Fish Warden. Nor is Meyer v. Clift, 1912 OK 201, 123 P. 1042, dispositive.7 In Meyer, the legislature merely specified what a stenographer for the district court should be paid by the county treasury. The Court, relying on Menefee v. Askew, 1910 OK 47, 107 P.159, held that the statute neglected to make any appropriation for salaries, just as portions of the statute in Menefee which had designated unspecified amounts to be paid as reimbursements for expenses were struck down because they didn’t “allocate” a sum-certain. Nevertheless, the teachings of Menefee, in its entirety, apply. ¶11 In 1911, the Court decided Regents of State University v. Trapp., 1911 OK 62, 113 P. 910, which involved, for the first time, a challenge to the Governor’s authority to line-item veto pursuant to art. 6, §12.8 Dicta in Trapp suggests that when the Legislature enacts legislation — including one section of the bill which appropriates a specified sum to a University and another section of the same bill apportion164
ing the appropriated money in a specified way — the second section is not an “appropriation” in which the Governor may approve in part, disapprove in part or direct how the funds shall be apportioned. A similar situation was presented in Carter v. Rathburn, 1922 OK 105, 209 P. 944, where the Court considered the Governor’s act in disapproving a portion of a bill which appropriated $1500.00 for salary for a clerk in the State Examiner’s office and the very next day, attempted to approve the bill as to all items except those “specifically marked disapproved.” ¶12 In actuality, both Trapp and Rathburn involve the question of the timeliness of the Governors’ actions. The fact that these cases stand for this and for nothing else was expressly and clearly pointed out by the Court in Peebley v. Childers, 1923 OK 595, 217 P.1049. When counsel in Peebley argued that Trapp’s holding governed the Governor’s actions regarding line-item vetoes, the Court said “[w]e are wholly unable to agree with the conclusion reached by counsel as to the controlling effect of the Trapp Case. We think that when the opinion in the Trapp Case is carefully analyzed and rightly understood, it furnishes a precedent against rather than in favor of counsel’s contention.” This same language is applicable here. ¶13 Unfortunately, the rationale of Peebley or its holding is of little help because it involved a Governor who went through a bill and reduced dollar amounts rather than disapproving them in toto. The Peebly Court held that the Governor was required to disapprove objectionable items in toto, rather than merely approve parts and disapprove parts by changing the dollar amounts — this is not what happened here.9 ¶14 The Court reaffirmed the teaching of Menefee, supra, when it recognized again in Riley v. Carter, 1933 OK 448, 25 P.2d 666, that “[t]his state is committed to the rule that no particular words need be used in making an appropriation, and that an appropriation may be implied where the language used reasonably leads to the conclusion that such was the intention of employment of those words.” It recognized this teaching because it held that an “appropriation by law” as used in the Constitution is not limited to Legislative appropriations, but constitutional appropriations as well.
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¶15 Another interesting case is State ex rel. Murray v. Carter, 1934 OK 132, 30 P.2d 700, a case involving the State Auditor’s refusal to pay funds authorized by the State Board of Public Affairs because the funds were paid pursuant to a statute that transferred funds based upon a conditional event and upon the Governor’s approval. The Auditor argued that the Legislature exceeded its authority by making items of appropriation in an institutional appropriation bill dependent on the existence of a fact happening or taking effect in the future. The Murray Court, in discussing the legislation, looked at five non-exclusive factors which indicated whether the legislation was an appropriation under art. 5, §55 of the Oklahoma Constitution and whether the State Auditor had to pay the funds.10 ¶16 This is an entirely different issue than the one before us — whether the Governor’s action exceeded his authority to line-item veto “appropriations of money embracing distinct items.” Rather, the proper analysis to resolve this question can be found in Edwards v. Childers, 1924 OK 652, 228 P. 472, and its progeny. Edwards involved similar legislation, which at first glance did not appear to qualify as an appropriation. In 1923, the Legislature levied a tax of two and one-half cents a gallon to place in a special “State Highway Construction and Maintenance Fund.” It also created a commission to oversee the fund and directed how that money would be expended for repair, maintenance, and building of new highways. The legislation was challenged as not qualifying as an appropriation because it did not distinctly specify the sum appropriated and the object to which it was to be used. ¶17 The Edwards Court concluded that the challenged legislation qualified as an appropriation because it created a special fund, appropriated and directed it to be expended for a special purpose and in an express manner, and the amounts to be appropriated were the entire fund. In short, the fund was capable of being mathematically calculated. The Court again recognized that no arbitrary form of expression or particular words were required in making an appropriation, but that it could be made by implication, when the language employed reasonably leads to the belief that such was the intent of the Legislature. In Edwards, it was apparent that the Legislature, through the language of the statutes, intended to set apart money from this specially created Vol. 81 — No. 3 — 1/30/2010
fund for the sole use of the department for the construction and maintenance of state highways. In other words, the Legislature quite clearly set aside money for a specific purpose.11 ¶18 It is, however, the teachings rather than the facts of Edwards which are particularly helpful. In re Initiative Petition No. 332, 1989 OK 93, ¶¶11-13 further explains Edwards: The main teaching of Edwards, which is the foundation upon which it is based and upon which it distinguishes Menefee, is the fundamental and absolute division of governmental power, and the exclusion of the executive from the appropriation and disbursement of public funds. ¶12 As a matter of historical perspective, the Court in Edwards observed that the provisions of art. 5, § 55 exist to curb the power of the monarch to save the people from the prodigality of the King.12 ¶13 The Court observed that an appropriation of public funds to a department of state does not conflict with the specific sum requirement if it leaves no power in the department to use or expand any funds except as the lawmakers reviewed, considered and thereafter determined to allocate. The concept upon which both of these cases rely is the notion that an “appropriation” is akin to that which is defined in the dictionary [money set aside for a specific purpose] or by the Legislature [a legislative allocation of funds for a specific purpose]. ¶19 The Court further addresses this subject of improper delegation of the legislative appropriation process in Wells v. Childers, 1945 OK 365, 165 P.2d 371 at ¶36: . . .[G]ubernatorially created objects of expenditures would constitute an appropriation, a function exclusively legislative. As a matter of fundamental principle, the Legislature may not create any fund, designate it an appropriation, and delegate determination of the objects of expenditure to any executive or administrative officer at his discretion. So to do not only would violate the Constitution (art. 5, § 55), requiring the distinct specification of the object to which it may be applied; additionally, such legislative authority sought to be delegated would violate section l, art. 4, Constitution,
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by which the government is divided into three separate and distinct departments and in which it is provided that neither shall exercise the powers properly belonging to either of the others. ¶20 The rationale of Edwards, supra, In re Initiative Petition No. 332, supra, and Wells, supra, is applicable. When it is clear from the questioned legislation that the intent of the Legislature was to set aside money for a specified purpose, and that it is not an attempt by the Legislature to delegate to another branch the ability to allocate an unspecified sum of money for a unspecified, discretionary purpose, the measure qualifies as an appropriation. Here, S.B. 2286 set aside the funds previously appropriated in H.B. 2276 to be used for budgeting for Fiscal year 2009 or 2010. H.B. 2286 set aside $50,000.00 of the funds previously appropriated by H.B. 2276 to be used to purchase computer software. Clearly both bills set aside dollars to be used for a specific purpose — each qualifying as an appropriation. Because each qualifies as such, the provisions of Section 12, art. 6 of our Constitution13 provide the Governor with lineitem veto authority. CONCLUSION ¶21 It is well-settled that no particular words are required by the Constitution in making an appropriation. It may be made by implication, when the language employed reasonably leads to the belief that such was the intention of the Legislature.14 This is illustrated in our recent case of Fent v. State ex rel. Office of State Finance, 2008 OK 2, ¶17, 184 P.3d 467 when we said: Even though drafted in terms of “transferring” and “allocating,” H.B.1105 unmistakably appropriates nearly 135 Million Dollars from the General Revenue Fund. It is an appropriation bill, and it must satisfy the requirements of an appropriation law set out in art. V, §§ 55 and 56 of the Oklahoma Constitution.15 An appropriation may also be made by an amendment to an existing bill.16 The questioned legislation does not appear to be an attempt by the Legislature to expand to another branch the power to use or expend any funds except those which the lawmakers allocated and considered and required to be expended for a specified purpose. Consequently, these measures also 166
qualify as an allocation, subject to the provisions of art. 6 §12 of our Constitution.17 ¶22 These are the facts.18 In House Bill 2286 and Senate Bill 1323, the Legislature sought to define the object of the appropriation by purporting to impose detailed constraints regarding the funds previously appropriated by H.B. 2276 by amending the bill. The Governor vetoed the legislative mandate within H.B 2286 for the Ethics Commission which required it to use a specified amount of its appropriation to purchase particular computer software, and he also vetoed the legislative mandate within S.B. 1323 for the Department of Corrections to “budget” specified amounts of its appropriation for delineated purposes. It is undisputed that art. 6 §12 is an exception to limitations of the Governor’s veto. It preserves the Governor’s line-item veto and shields the Governor from becoming a “super-legislator.” To hold otherwise would render art. 6 §12 null, void, and useless. 1. This case is cited strictly for the principle that an amendment to an appropriations bill, that redirects or places new conditions on money already appropriated, is itself an appropriation. 2. House Bill No. 2276 at §39 appropriated to the Ethics Commission the sum of $667,960.00 and at §95 to the Department of Corrections $483,000.00. 3. Webster’s New International Dictionary 133 (2ed. 1950). 4. The Oklahoma Legislature provides a “Glossary of Legislative Terms” for the public. It is available on line at http//www.oksenate. gov.legislation/glossary.html. Appropriation and Budget are both defined within the glossary. It also defines “budget” as an “estimate of the receipts and expenditures needed to carry out programs for a fiscal project.” 5. The Okla. Const. art. 5 §55 provides: No money shall ever be paid out of the treasury of this State, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum. 6. When this Court used “syllabus,” the syllabus contained the law of the case and the body of the opinion was merely dictum. Robinson v. Oklahoma Nephrology Associates, Inc, 2007 OK 2, ¶13, fn. 2, 154 P.3d 1250; Corbin v. Wilkinson, 1935 OK 977 ¶0, 52 P.2d 45. The reasoning of the court in the body of the decision was an aid to the interpretation of the law expressed in the syllabus. Robinson, supra. 7. It should be noted that the concurring opinion in Johnson v. Walters, 1991 OK 107 at ¶¶5-7, fn. 10-13, 819 P.2d at 703, relied on these authorities for the limited proposition that: 1) the Governor’s powers are limited by the Constitution; 2) the Chief Executive may exercise only the power specifically granted; and 3) any attempt to exceed this authority results in the actions being rendered wholly ineffectual for any and every purpose. 8. The Okla. Const. art. 6 §12, ¶5, supra. 9. It is interesting to note that the people solved this problem later, at least in regard to the Regents, when they enacted art. 13A §3 of the Okla. Const. which requires the Legislature to make one consolidated appropriation and the Regents to then allocate the funds. 10. The Okla. Const. art. 5 §55, see note 5, supra. 11. Edwards v. Childers, 1924 OK 652, 228 P. 472 , also explains the purpose of the appropriation requirement as: ¶11. . .This law was brought into being to curb the power of the monarch, to save the people from the prodigality of the king. This requirement was not intended, nor was it originally so worded as to
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protect the people from the ill-advised judgment and extravagance of Parliament itself. It merely made the will of the lawmakers paramount to that of the Crown in the expenditure of public funds. Neither the people nor their Parliament, by this law, sought to curb or regulate their own powers. . . ¶12 So, it would seem that an act appropriating public funds to be used by a department of state conflicts in no wise with the letter or spirit of this law if it leaves no power in such department to use or expend any fund except those funds which the lawmakers viewed and considered, and, so beholding, clearly instructed such department to employ. In such case the department is restricted by legislative will to a definite limit for purposes stated. ¶13 In both sections of the statute under consideration, the Legislature has given the department an impressive command that all the moneys in this specific fund “shall be expended” for purposes and in the manner therein provided. . . 12. The Oklahoma Court of Criminal Appeals, in Ex parte Pope, 1925 OK CR 610, 242 P. 290, explains the concept of constitutional provisions dealing with “appropriations” as the intent of the sovereign people to keep a firm hand on the public purse strings, by limiting the power to spend money without an appropriation. 13. The Okla. Const. art. 6 §12, see ¶5, supra. 14. In re Oklahoma Turnpike Auth., 1950 OK 208, ¶54, 221 P.2d 795; State ex rel. Murray v. Carter, 1934 OK 132, ¶19, 30 P.2d 700; Leninger v. Minter, 1929 OK 464, ¶12, 281 P.801; Edwards v. Childers, 1924 OK 652, ¶8, 228 P.472; Menefee v. Askew, 1910 OK 47, ¶8, 107 P.159. 15. Fent v. State ex rel. Office of State Finance, 2008 OK 2, ¶17, 184 P.3d 467 also provides in pertinent part: ¶18 As required by art. V, § 55, the provisions in H.B.1105 distinctly specify the amount appropriated to each agency or revolving fund. The provisions do not distinctly specify the object to which the money is to be applied for each and every specific amount appropriated to a revolving fund, but the object can be determined by reference to other statutes creating or relating to the revolving fund. For instance, the object to which money in the State Emergency Fund is to be applied can be determined by reference to the statutes governing the revolving fund such as 62 O.S.Supp.2006, § 139.47. Article V, § 55 provides that it is insufficient to refer to another law to determine the specific amount of the appropriation, but it does not extend the restriction against referring to another law to determine the object to which the appropriated amount shall be applied. The restriction against referring to another law to determine the amount appropriated will be strictly construed and will not be extended to other matters not covered by the restriction. Tate v. Logan, 1961 OK 136, ¶19, 362 P.2d 670, 674675. Accordingly, H.B.1105 is consistent with the provisions to make an appropriation by law in art. V, § 55 even though reference to other statutes is necessary to determine the objects or purposes of some of the appropriations. 16. Opinion of the Justices to the Governor, 370 N.E.2d 1350, 1352 (Mass. 1977). 17. The Okla. Const. art. 6 §12, see ¶5, supra. 18. Perhaps John Adams, writing in defense of the British soldiers in the Boston Massacre Trials, said it best: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” J. Adams, Argument in Defense of the [British] Soldiers in the Boston Massacre Trials [December 1770].
TAYLOR, V.C.J., with whom OPALA and WINCHESTER, JJ., join, dissenting: ¶1 I respectfully dissent from today’s declaratory ruling that a legislative bill adding conditions upon the expenditure of appropriated money constitutes an appropriation bill subject to the Governor’s line-item veto. Today’s ruling wholly ignores the unambiguous requirements of an appropriation bill set out in the Oklahoma Constitution, art. 5, § 55 and implicitly overrules the time-honored principles governing the line-item veto in the Oklahoma Constitution, art. 6, § 12. Contrary to the separation of powers mandate in the Oklahoma Vol. 81 — No. 3 — 1/30/2010
Constitution, art. 4, § 1, today’s ruling restricts the Legislature’s power to control the state’s purse while it enlarges the Governor’s veto power over legislation. ¶2 Relying on Article 5, § 55, today’s decision redefines an appropriation bill to include any bill that places conditions or restrictions on the budgeting and expenditure of money previously appropriated. This definition is inconsistent with the plain language of Article 5, § 55 and the long-standing, untarnished pronouncements on the meaning of “appropriation” under Article 5, § 55 set out in Menefee v. Askew, 1910 OK 47,107 P. 159, and Meyer v. Clift, 1912 OK 201, 123 P. 1042. ¶3 Article 5 of the Oklahoma Constitution, the article on the legislative department, at § 36, vests legislative authority over all rightful subjects in the state legislature. Article 5, § 55, on the other hand, restricts the exercise of legislative authority to spend the state’s money. It requires the state legislature to make an appropriation by law in a specified amount for a specified object before the money may be paid out of the state treasury. In other words, the enactment of an appropriation by law is the exclusive procedure by which the state legislature may authorize money to be paid out of the state treasury, regardless of any other methods that may be devised. Article 5, § 55 reads: No money shall ever be paid out of the treasury of this State, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum. ¶4 Menefee v. Askew, 1910 OK 47,107 P. 159, defined an appropriation in accordance with Article 5, § 55. Menefee v. Askew, in No. 1 of the Syllabus, concluded: An “appropriation” in this state is an authority of the Legislature, given at the proper time and in legal form to the proper officers, to apply a distinctly specified sum, from a designated fund out of the treasury
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in a given year, for a specified object or demand against the state. ¶5 The question in Menefee v. Askew was whether a legislative enactment appropriated money. The legislation in Menefee v. Askew provided that game and fish license fees shall be placed to the credit of the game protection fund and that the Game and Fish Warden’s $1,800.00 annual salary, annual travel expense not to exceed $800.00, and necessary office expenses shall be paid out of the game protection fund. Menefee v. Askew held that the legislation, as required by Article 5, § 55, validly appropriated a sum certain for the Game and Fish Warden’s salary from the game protection fund but did not make a valid appropriation for the Game and Fish Warden’s stenographer because it did not specify a sum certain for necessary office expenses.1 ¶6 Shortly after Menefee v. Askew, Meyer v. Clift, 1912 OK 201, 123 P. 1042, determined that a legislative enactment fixing the salary of a stenographer did not constitute an appropriation by law authorizing the payment of money from the state treasury as required by Article 5, § 55. Meyer v. Clift, in the Syllabus, held: Section 23, c. 69, Sess. Laws 1910, providing that stenographers for the district court and for the superior court shall receive an annual salary of $ 1,200, the salary of stenographer of the district court to be paid out of the state treasury in the same manner as salaries of district judges, does not constitute an appropriation for the payment of salaries of stenographers for the district court; and by reason of section 2527, Comp. Laws 1909, it is unlawful for the State Auditor to issue a warrant for the salary of a stenographer of the district court for the months of July, August, September, and October, 1911, since there is no appropriation by law for the payment of such salary. ¶7 Under Meyer v. Clift, Article 5, § 55 cannot be read to include all bills that make an appropriation or that add conditions upon the expenditure of money appropriated in some other legislative enactment. The teaching of Meyer v. Clift is that a legislative enactment placing conditions upon expenditures, such as fixing salaries, is not within the meaning of “appropriation” as that term is used in Article 5, § 55. ¶8 The Menefee v. Askew and Meyer v. Clift decisions were handed down shortly after the 168
adoption of the Oklahoma Constitution and Oklahoma statehood. A few years later Riley v. Carter, 1933 OK 448, 25 P.2d 666, determined that an “appropriation by law” as used in Article 5, § 55 included constitutional appropriations. The dispute in Riley v. Carter arose out of the Legislature’s failure to make an appropriation for the salaries of the justices on this Court. Riley v. Carter held that the schedule attached to the Oklahoma Constitution as adopted by the voters made “an appropriation by law” for the justices’ salaries. Extending the meaning of “appropriation by law” in Article 5, § 55 beyond the pronouncements in Menefee v. Askew and Meyer v. Clift, Riley v. Carter reaffirmed the principles enunciated in those decisions: The authors of the opinions in Menefee v. Askew, supra, and Meyer v. Clift, supra, were members of the Constitutional Convention, and the opinions were filed but a short time after the adoption of the Constitution. For these reasons, the opinions are rightfully entitled to great weight in the construction of constitutional provisions. Riley v. Carter, 25 P.2d at 676. ¶9 The general rules of construction governing the interpretation of our constitution require us to ascertain the intent and purpose of the provision at the time of its adoption.2 Carter v. Rathburn, 1922 OK 105, 209 P.944, 952. Today’s ruling that the legislation or a part of it which adds conditions or restrictions to previously appropriated money constitutes an appropriation disregards the applicable rules of constitutional construction and turns Menefee v. Askew and Meyer v. Clift upside down. It also disregards the doctrine of stare decisis that ordinarily binds this Court to its established precedent. Campbell v. White, 1993 OK 89, ¶14, 856 P.2d 255, 260. ¶10 A year after Riley v. Carter, this Court articulated five requirements of an appropriation bill under Article 5, § 55. State ex rel. Murray v. Carter, 1934 OK 132, 30 P.2d 700, in No. 3 of the Syllabus, determined: Said section 55 of art. 5, supra requires an appropriation bill to meet five requirements, as follows, to wit: (a) Make an appropriation of money, (b) provide for its payment within 30 months, (c) specify the sum appropriated, (d) state the object to which said sum shall be applied, and (e) not require reference to any other law to fix
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the sum appropriated.” Menefee Case, supra. ¶11 Guided by the above, long-standing decisions, the two legislative measures at issue in this controversy are not appropriation bills under Article 5, § 55. Neither legislative measure meets Article 5, § 55’s threshold requirement of “making a new appropriation, or continuing or reviving an appropriation.” Both of them relate to the budgeting of previously appropriated money. Today’s decision, however, classifies the challenged legislation as appropriation bills under Article 5, § 55 by redefining appropriation bills to include not only bills that make appropriations of money but also bills that place conditions or restrictions on the budgeting and expenditure of money previously appropriated. Today’s expanded meaning of an appropriation bill to include bills related to budgets and expenditures silently overrules Menefee v. Askew, Meyer v. Clift, and Murray v. Carter’s five fundamental requirements of an appropriation under Article 5, § 55.
shall be void, unless repassed by a twothirds vote, according to the rules and limitations prescribed in the preceding section in reference to other bills: Provided, That this section shall not relieve emergency bills of the requirement of the three-fourths vote. The Court then looks to North Dakota and Ohio for the meaning of “every,” “any” and “all” as used in Article 6, § 12. In so doing, this Court is again overlooking our long-standing jurisprudence. ¶13 Two early decisions from this Court should control today’s ruling: Regents of State University v. Trapp, 1911 OK 62, 113 P. 910, and Carter v. Rathburn, 1922 OK 105, 209 P. 944. Regents of State University v. Trapp, at No. 1 of the Syllabus, held: Section 12, art. 6. Constitution, providing that the Governor may disapprove any item of a bill making appropriations of money embracing distinct items, does not apply to a special appropriation bill containing only one item of appropriation for the support and maintenance of the State University; and the act of the Governor approving the bill in part and disapproving other parts thereof, directing how the funds appropriated shall be apportioned, is a nullity.
¶12 Recognizing that appropriation bills are distinct from general legislative measures, the Court declares that this distinction is not determinative of the instant controversy and turns to the language in Section 12 of Article 6 of the Oklahoma Constitution. Article 6 of the Oklahoma Constitution, the article on the executive department, confers specific authority upon the Governor to participate in the legislative process as set out in §§ 11 and 12. Sections 11 and 12 grant the Governor the power to disapprove legislative measures and prescribe the manner in which the Governor may exercise the power. While § 11 grants the Governor power to veto a legislative measure in toto,3 § 12 grants the Governor power to veto an appropriation item without disapproving of the entire appropriation bill. Article 6, § 12 reads:
¶14 The special appropriation bill in Trapp made a single appropriation and provided for the expenditure of the single appropriation and appropriations made in other acts of the Legislature for fiscal years 1909-1910 and 19101911. Our first Governor disapproved some of the expenditures in the legislative measure, and our first Supreme Court declared that the legislative measure did not become law because the Governor did not approve the entire bill as required by Article 6, § 11. In doing so, the Trapp court said:
Every bill passed by the Legislature, making appropriations of money embracing distinct items, shall, before it becomes a law, be presented to the Governor; if he disapproves the bill, or any item, or appropriation therein contained, he shall communicate such disapproval, with his reasons therefor, to the house in which the bill shall have originated, but all items not disapproved shall have the force and effect of law according to the original provisions of the bill. Any item or items so disapproved
The meaning of the foregoing section [Okla. Const., art. 6, § 12] is not obscure, and the object it was intended to accomplish is apparent. Without that provision, all bills of whatever character could be approved or disapproved by the Governor only in their entirety [under Okla. Const., art. 6, § 11]. But by section 57, art. 5, general appropriation bills may embrace more than one subject; and if the veto power were confined to the whole bill, the Governor might often be required to destroy much good
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legislation in order to defeat one item of a bill that was bad, or, on the other hand, be compelled to approve a piece of legislation vicious in part, in order to obtain the benefits of the salutary provisions of the same act. It was to enable the Governor to approach in a measure the consideration and approval of a bill carrying items of appropriation with the same power that the members of the legislative department are authorized to act upon it, in that he may consider and approve some of the items separately without being required to approve them all. But this power is conferred upon him only as to bills that make appropriations of money “embracing distinct items,” and it was contemplated that it should apply only to those bills where more than one item of appropriation was made. Whether the power to approve some of the distinct items of an appropriation bill and to disapprove others carries with it the power to reduce any item to a sum less than provided in the act and then approve it, as seems to have been the opinion of the Governor, is not here necessary to determine; for, upon the more serious reason that the act under consideration does not fall within the class of acts embraced in section 12, art. 6, the Governor was without power to approve the bill in part and disapprove it in part. Trapp, 113 P. at 913. ¶15 The unanswered query in Trapp was answered in the negative in Peebly v. Childers, 1923 OK 595, 217 P. 1049, 1053. No. 6 of the Syllabus to Peebly v. Childers invalidated the Governor’s line-item reduction of the amount appropriated for University salaries from $700,000 to $500,000 for the 1924 fiscal year and from $750,000 to $500,000 for the 1925 fiscal year. Also, the fundamental principles governing the application of Article 6, §§ 11 and 12 were enunciated in the Syllabus by the Court in Peebly v. Childers:
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are required to be separate and distinct, so that neither shall exercise the functions properly belonging to either of the others. 3. While engaged in considering bills which have passed both houses of the Legislature and which are presented to him for approval or disapproval, the Governor is acting in a legislative capacity and not as an executive. 4. While exercising this function the Governor is a special agent with powers limited by the Constitution and he can only act in the specified mode and can exercise only the granted powers. If he attempts to exercise them in a different mode, or to exercise powers not given, his act will be wholly ineffectual for any and every purpose. 5. Under section 12, art. 6, Williams’ Constitution, which applies in the case at bar, no affirmative action on the part of the Governor is necessary to vitalize an appropriation bill embracing distinct items duly passed by the Legislature. But in order to veto any distinct item of an appropriation bill the governor is required to disapprove the objectionable item in toto. 6. A fair application of the foregoing fundamental principles to the plain provisions of section 12, art. 6, Williams’ Constitution leads to the conclusion that the action of the governor in attempting to approve in part and disapprove in part distinct items of the Institutional Appropriation Bill was an unauthorized and futile gesture wholly ineffectual for any purpose. ¶16 A year earlier, Carter v. Rathburn, 1922 OK 105, 209 P. 944, set out an elementary explanation of the veto powers granted in Article 6, §§ 11 and 12. The Carter v. Rathburn court explained:
1. The act of the Legislature involved herein is a bill making appropriations of money embracing distinct items and the governor’s veto power in relation to such bill, or any distinct item thereof, is defined by section 12, art. 6, Williams’ Constitution.
Section 11 above applies to all bills as a whole. That is, bills in their entirety. No bill in its entirety becomes a law without compliance with the provisions of said section. Any bill becomes a law as a whole when such provisions are complied with. The provisions are plain and, in our opinion, need no construction further than that they mean what they say.
2. Except as provided in the Constitution of this state, the three departments of government, legislative, executive and judicial,
But in section 12, supra, recognizing the difference between a bill as a whole and a general appropriation bill containing sepa-
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rate, independent items, the Constitution makes express provision as to how such a bill may become a law. The Constitutional Convention seems to have taken cognizance of the fact that general appropriation bills are necessarily made up of numerous, separate, independent items, and in order to relieve such a bill from the restrictions imposed under section 11, supra, and to free it from danger of being defeated as a whole, made provisions whereby separate items in such a bill may be disapproved and cut out by the Governor, without affecting the bill in its entirety. In order to make the provisions of said section 12 applicable, a bill must be one making an appropriation of money and embracing separate and distinct items; it must pass both houses and be presented to the Governor; if the Governor disapproves any item thereof, he must communicate his disapproval, with his reasons therefor, to the house in which the bill originated, and all items not disapproved shall have the force and effect of law according to the original provisions of the bill find every item so disapproved is void; that is, does not become a law unless such item is repassed by a two-thirds vote, as provided in section 11, supra. In other words, if an item in a general appropriation bill is disapproved by the Governor, there is no law provided in the Constitution by which it may become a law, except by repassage by a two-thirds vote, as provided in section 11, supra. 209 P. at 946-947. ¶17 In Carter v. Rathburn, the Legislature sent the Governor a general appropriation bill, and, after the Legislature adjourned sine die, the Governor line-item vetoed a clerk’s salary. Rathburn, a clerk in the State Examiner’s office, asked for payment of her salary arguing that the line-item veto was ineffective because the Governor did not return the general appropriation bill to the house of origination as required by Article 6, § 12. The Court in Carter v. Rathburn said: True, the Constitution says, “Any item so disapproved shall be void,” and probably true that the phrase “so disapproved” means disapproved while the Legislature is in session, but it does not say that unless Vol. 81 — No. 3 — 1/30/2010
it is “so disapproved” it shall have the force and effect of law. And to give such item the force and effect of law is to . . . put life into it by a process of abstract reasoning rather than by the plain language of the Constitution. Courts are necessarily vested with the authority to interpret the law and say what it means after it becomes a law. Also they have power to determine that an act has not become a law where constitutional requirements have not been met, but it was never intended that by a mere process of reasoning, however plausible, courts may breathe life into an act which has not been given life by the plain creative provisions of the Constitution. 209 P. at 949. ¶18 The reasoning and the holdings in these early decisions have withstood the test of time. In Johnson v. Walters, 1991 OK 107, 819 P.2d 694, the Legislature presented the Governor with two bills: 1) a non-appropriation bill that allocated space in the State Capitol Building, relocated various officials, and authorized the sale of surplus water, and 2) a budget reconciliation bill that made multiple appropriations for separate items and contained multiple other general provisions or non-appropriation legislation. The Governor, on the non-appropriation bill, approved only the section relating to the sale of water, and on the budget reconciliation bill, vetoed several general legislation sections. As in this case, the leaders of the Legislature asked this Court to declare the Governor’s partial veto beyond his constitutional authority. Johnson v. Walters decided 1) that no part of the non-appropriation bill became law because the Governor’s attempt to exercise the line-item veto on a general legislation bill is ineffectual and 2) that all general legislation provisions in the reconciliation budget bill failed to become law by virtue of the Governor’s attempted lineitem veto of some of the general legislation provisions. While the Court’s opinion turned on the one-subject-rule restriction on the Legislature rather than the limited veto power of the Governor, one of the concurring opinions filed in Johnson v. Walters relied upon the teachings of our early decisions — including Regents of State University v. Trapp, Carter v. Rathburn, and Peebly v. Childers — and emphasized that the Governor is not a super-legislator. Johnson v. Walters, 1991 OK 107 at ¶¶5-7, n. 10-13, 819 P2d. at 703, n. 10-13 (concurring opinion by Kauger, J.).
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¶19 In this matter, the Legislature passed and the Governor signed a general appropriation bill for fiscal year ending June 30, 2009, for the expenses of the various agencies in the executive, legislative and judicial departments. The general appropriation bill, Enrolled House Bill No. 2276, made appropriations to the Department of Corrections, in the amount of $483,000,000 from the General Revenue Fund in the State Treasury and $20,000,000 from the Special Cash Fund in the State Treasury or so much thereof as may be necessary to perform the duties imposed upon the Department of Corrections by law and an appropriation to the Ethics Commission in the amount of $667,960 from the General Revenue Fund in the State Treasury or so much thereof as may be necessary to perform the duties imposed upon the Ethics Commission by law. Subsequently, the Legislature sent to the Governor Enrolled Senate Bill No. 1323 (relating to the Department of Corrections)4 and Enrolled House Bill No. 2286 (relating to the Ethics Commission),5 that allocated the previously appropriated money to various budget categories, set full-time-equivalent employee limits, and provided for fiscal year limitations, inter alia.
at ¶19, 856 P.2d at 262, when the Court said we are not free to expand the meaning of constitutional provisions. When our jurisdiction is invoked, it is our duty to require both the Legislature and the Governor to strictly comply with our Constitution.
¶20 The Governor signed both S.B. 1323 and H.B. 2286, but the Governor vetoed by lineitem method most of the budget allocations and the fiscal year limitations in S.B. 1323 for the Department of Corrections and a section in H.B. 2286 requiring the Ethics Commissions to expend $50,000 on specified computer software. The line-item vetoes in these two legislative measures are challenged in this original action.
¶23 After the petitioners sought to invoke our jurisdiction, the Governor urged that the petitioners have not presented a controversy suitable for this Court’s assumption of jurisdiction and declaratory judgment. Yet, the Court in today’s decision fails to address this issue. I find it necessary to address this issue based on the petitioners’ urging that we grant only prospective relief.
¶21 Neither S.B. 1323 nor H.B. 2286 makes appropriations of money from the State Treasury for two or more separate and distinct items so that neither triggers the Governor’s line-item veto power granted in Article 6, § 12. Stated plainly, neither S.B. 1323 nor H.B. 2286 of the 2008 Session of the Oklahoma Legislature is an “appropriation bill.” The sections in S.B. 1323 and H.B. 2286 which the Governor vetoed by line-item method did not appropriate money. Rather than follow the plain language of Article 6, § 12 and our binding jurisprudence, today, for the first time, we extend the Governor’s line-item veto power to general non-appropriation legislation and to general provisions of legislation. Reasoning similar to today’s was rejected in Carter v. Rathburn and more recently in Campbell v. White, 1993 OK 89, 172
¶22 The Court today confers upon the Governor super-legislator status by its conclusion that the framers of the Oklahoma Constitution clearly intended the Governor to play a critical role at every stage of the appropriations process. This conclusion, grounded neither in the language of Article 5, § 55 or Article 6, § 12, nor in our extant jurisprudence, is in derogation of the fundamental power of the Legislature to make appropriations. The power to make appropriations, for which the Public must pay the taxes, is one of the most sacred rights delegated to legislative bodies, and the law prescribes the exact manner in which such appropriations may be made, and the courts should jealously guard against straining the provisions of law in order to make an appropriation valid. Carter v. Rathburn, 209 P. at 950.
¶24 To invoke this Court’s original jurisdiction, the petitioners are required to present a justiciable controversy and to show a “sufficient immediacy and reality” as to warrant the pronouncement of judgment. Dank v. Benson, 2000 OK 40,¶ 9, 5 P.3d 1088, 1092. The petitioners assert that “the Court’s pronouncement will provide future guidance for both the Governor and the Legislature.” Future guidance in the upcoming legislative session is not the type of urgency which may invoke this Court’s original jurisdiction. See id. ¶25 The petitioners in their application state that they are not seeking to “invalidate those two bills, but rather ask the Court to declare the attempted use of the veto unconstitutional and to grant prospective declaratory relief to preclude similar unlawful acts by the Chief
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Executive in the future.” Thus, the petitioners in their application seek only prospective relief so that the two bills at issue here will not be invalidated. ¶26 In Dank v. Benson this Court denied the petitioners application to assume original jurisdiction for lack of a justiciable controversy. Here, as in Dank, the petitioners in their application do not seek to have any specific legislation invalidated but seek to have this Court make a pronouncement to prevent potential future actions by an elected government officer. Evidently because of the Governor’s reliance on , during oral argument, the petitioners’ made an oral plea that the two bills were invalid. Nonetheless, the petitioners seek to have this Court determine that the bills are invalid, but that the decision not affect their effectiveness by making our pronouncement prospective. ¶27 Because to give the relief requested by the petitioners would weigh against this Court assuming jurisdiction and would fail, in my opinion, to present a justiciable controversy and because of the weight of the matter presented, I think the application should be considered amended to reflect petitioners’ assertions made at oral argument urging the bills be declared invalid. As so amended, the application and petition present a controversy involving the highest levels of state government and raising first impression, publici juris questions that are important to the law of state government. ¶28 Were I writing for the Court, I would assume original jurisdiction and enter a declaratory judgment. I would find that 1) the two bills under attack here are not appropriation bills, 2) the provisions attempted by the Governor to be vetoed by the line-item method are not items of appropriations, and 3) the Governor’s attempted line-item veto of those provisions is ineffective because it is not authorized by the Oklahoma Constitution. I would also find that the Governor placed his approval upon each bill by his signature, although he could have vetoed each bill in its entirety. I would hold the Governor’s attempted lineitem vetoes are unauthorized and ineffective and did not prevent the two bills from becoming the law of this state when the Governor signed them. I would declare S.B. 1323 and H.B. 2286 of the 2008 Oklahoma Legislature to be valid in toto and to survive intact the
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attempted line-item veto that is unauthorized by the Oklahoma Constitution. 1 In the remainder of its syllabus, Menefee v. Askew ruled that Article 5, § 55 does not require the Legislature to use an arbitrary form of expression or any particular words to make a valid appropriation: No. 2. No arbitrary form of expression or particular words are required by the Constitution in making an appropriation, which may be made by implication when the language employed reasonably leads to the belief that such was the intention of the Legislature. No. 3. Sections 9, 10, art. 4. c. 19, p. 303, Sess. Laws 1909, in connection with sections 3, 13, art. 6, c. 19, constitute a valid appropriation as to the salary of the Game and Fish Warden in the sum of $ 1,800 per annum, and his actual necessary traveling expenses, not to exceed $ 800 per annum, and the salaries of not exceeding eight deputy game and fish wardens each in the sum of $ 800 per year and their each actual, necessary expenses, not to exceed $ 600 per annum, while actually employed under the direction of the State Game and Fish Warden, as controlled by sections 55 and 56, art. 5, of the Constitution, but continue in effect as an appropriation for two years and one-half only after the passage of said act. No. 4. The provision of section 3, art. 6, providing that the Game and Fish Warden shall be reimbursed for his actual and necessary expenses, including expenses of catching and shipping game for propagating purposes, to be paid monthly and in the same manner as his salary and traveling expenses, does not constitute a valid appropriation, as the sum certain appropriated is not distinctly specified. In this regard, Fent v. State ex rel. Office of State Finance, 2008 OK 2, 184 P.3d 467, 475, ruled that the transfer of surplus funds constituted an appropriation: ¶17 Even though drafted in terms of “transferring” and “allocating,” H.B. 1105 unmistakably appropriates nearly 135 Million Dollars from the General Revenue Fund. It is an appropriation bill, and it must satisfy the requirements of an appropriation law set out in art. V, §§ 55 and 56 of the Oklahoma Constitution. Unlike this case, the legislation involved in Menefee v. Askew and in Fent v. Office of State Finance expressed clear intent to appropriate specific sums of money from designated funds of the treasury to be expended for specific purposes in a given year. The legislation challenged in this case merely directs the budgeting of money that was appropriated in other legislative measures. See Appendices A and B attached hereto. 2. The recent opinion in South Tulsa Citizens Coalition, LLC, v. Ark. River Bridge Auth., 2008 OK 4, ¶11, 176 P.3d 1217, 1220, reaffirmed the general rules that the intent of the framers and the people adopting it must be given effect in construing constitutional provisions and that, absent an ambiguity, the intent is settled by the language of the provision itself and the courts are not at liberty to search beyond the instrument for meaning. 3. The Oklahoma Constitution, art. 6, § 12 is an exception to the limitations on the Governor’s veto power in art. 6, § 11. Section 11 reads: Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature, shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; if not, he shall return it with his objections to the house in which it shall have originated, who shall enter the objections at large in the Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and, if approved by two-thirds of the members elected to that house, it shall become a law, notwithstanding the objections of the Governor. In all such cases, the vote in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the Journal of each house respectively. If any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the Legislature, unless approved by the Governor within fifteen days after such adjournment.
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4. Attachment A:
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5. Attachment B:
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OPALA, J., with whom WINCHESTER, J., joins, dissenting ¶1 I write separately from others to explain why I join the dissent’s analysis of the law that governs this original proceeding. ¶2 An appropriation is a legislative act of allocating money to an agency in a sum certain. A legislative direction that limits the quantum of an agency’s authority to spend money out of its appropriation for certain authorized categories is not an appropriation. It is rather an allocation formula for use of appropriated money by limiting the amount of an agency’s spending for approved categories. An allocation of money from an agency’s appropriation to enumerated categories does not appropriate money but rather restricts an agency’s spending ability from funds that stand appropriated. Art. 6 §12, Okl.Const. ¶3 By line-item veto the governor has the power to nullify an appropriation of money but not to invalidate a legislative direction for an agency’s internal allocation of its appropriated funds. Today’s pronouncement stretches, sans legal warrant, the governor’s line-item veto power to include legislative enactments that do not make appropriations but merely restrict an agency’s freedom to spend its appropriated funds. A governor’s line-item veto must be directed to an appropriation, not to a legislative direction about spending appropriated funds. When it targets a directive, it loses its legal characteristic and its constitutional force. Simply stated, it stands reduced to a nullity — an impermissible line-item veto of a legislative spending directive.1 ¶4 A constitutional grant of power cannot be judicially enlarged by expanding the language of the fundamental law’s grant beyond the limits of its dictionary-revealed meaning.2 1. If a legislative act, which contains an appropriation to a single institution or agency, is divided into parts, the governor’s power of line-item veto may not be invoked to nullify one or several severed portions of what is a single appropriation. To put it in somewhat clearer terms, a legislative division of a single appropriation of money to an institution will not provide legal support for the governor’s use of line-item veto to nullify but a part or parts of an appropriation that in law stands as a single integrity. Regents of State University v. Trapp, State Auditor, 1911 OK 62, ¶0, syl., 13 P. 910, 28 Okl. 83. 2. In re. Protest Against the Tax Levy, 1998 OK 43, ¶7, 959 P.2d 580, 582; Chickasha Cotton Oil Co. v. Grady County, 1936 OK 318, ¶18, 58 P.2d 590, 177 Okl. 240.
2009 OK 98 In re Amendment to 12 O.S. Ch. 15, App. 1, Rule 1.14 of the Rules of the Oklahoma Supreme Court. S.C.A.D. No. 2009-103. December 15, 2009 ¶0 Order Amending Oklahoma Supreme Court Rule 1.14 ¶1 The Court hereby amends Oklahoma Supreme Court Rule 1.14, 12 O.S.2001 Ch. 15, App. 1. ¶2 Oklahoma Supreme Court Rule 1.14 is amended to read as follows. Rule 1.14. Taxation of costs and motions for an appeal related attorney’s fee (A) Costs. (1.) Costs must be sought by a separately filed and labeled motion in the appellate court prior to mandate. The Clerk shall not tax as costs any expense unless the person claiming the same, prior to the issuance of a mandate in the cause, shall file with the Clerk a verified statement of taxable cost items showing that person has paid the same. (2.) Costs taxable by the Supreme Court Clerk are limited to the following: (a.) The cost deposit required by 20 O.S. § 15; (b.) The cost deposit required by 20 O.S. § 30.4; (c.) The reasonable cost of copying and binding the record pursuant to Rule 1.36. Carroll v. Axelson, Inc., 1999 OK 13, 976 P.2d 1046; (d.) Reasonable costs for transcripts which are a part of the record on appeal. These costs may include the fee for recording and transcribing the proceedings, and mileage if the trial judge requires the parties to bring their own court reporter. Any charges for mailing and delivery of copies, or for an additional electronic transcript, are not taxable. (3.) No fee paid to the district court clerk is taxable in the appellate courts. 12 O.S. § 978, Spears v. Shelter Mutual Insurance Co., 2003 OK 66, 73 P.3d 865, Wilson v. Glancy, 1995 OK 141, 913 P.2d 286, Oklahoma Turnpike Authority v. New, 1993 OK 42, 853 P.2d 765. (B) Attorney’s Fee.
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A motion for an appeal related attorney’s fee must be made by a separately filed and labeled motion in the appellate court prior to issuance of mandate, or in the applicant’s brief on appeal in a separate portion that is specifically identified. The motion must state the statutory and decisional authority allowing the fee. See 12 O.S.§ 696.4(C). If the motion for an attorney’s fee is included in the brief and the court does not address the motion in its opinion the party shall reurge the request by separate motion prior to mandate. In an appeal governed by Rule 1.36 a motion for an appeal related attorney’s fee must be made by a separately filed and labeled motion in the appellate court prior to issuance of mandate. ¶3 The version Oklahoma Supreme Court Rule 1.14 amended by this Order shall take effect January 1, 2010. This Order shall be published three times in the Oklahoma Bar Journal. ¶4 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 14th DAY OF DECEMBER, 2009. /s/ James E. Edmondson Chief Justice ALL JUSTICES CONCUR
Case No. 107,116. January 19, 2010 APPLICATION TO ASSUME ORIGINAL JURISDICTION ¶0 The petitioner, Jerry R. Fent, has filed an application asking this Court to assume original jurisdiction and declare unconstitutional 28 O.S. Supp. 2008 § 152(D)(E) and (F) as well as 28 O.S. Supp. 2008 § 152.1(B), which require a portion of fees paid to the court clerks in civil actions be credited or deposited to the accounts of certain non-judicial programs. After oral argument before the Court en banc, the application to assume original jurisdiction was granted. We hold that the aforesaid statutory provisions violate Okla. Const., art. 2§ 6. DECLARATORY RELIEF GRANTED. Jerry R. Fent, Oklahoma City, Oklahoma, ProSe Petitioner. Scott D. Boughton, Assistant Attorney General, Oklahoma Attorney General’s Office, Oklahoma City, Oklahoma, and John M. Jacobsen, Assistant District Attorney, Oklahoma City, Oklahoma, for the Respondents. HARGRAVE, J.
2010 OK 2 JERRY R. FENT, as taxpayer and citizen paying court costs in District Courts and all other similar parties/persons, Petitioner, v. STATE OF OKLAHOMA, ex rel., DEPARTMENT OF HUMAN SERVICES; and HOWARD H. HENDRICK, in his official capacity as the Director of the Department of Human Services; and GERRI WEBB, ANETA WILKINSON, JAY DEE CHASE, BOB RAWLINGS, RICHARD DeVAUGHN, PATRICE DOUGLAS, RON MERCER, GEORGE YOUNG, and MIKE PECK in their official capacity as Commissioners of the Department of Human Services; and STATE OF OKLAHOMA, ex rel. OFFICE OF THE ATTORNEY GENERAL and W.A. DREW EDMONDSON, Attorney General, in his official capacity as a State Administrator, and STATE OF OKLAHOMA, ex rel. OFFICE OF OKLAHOMA COUNTY DISTRICT COURT CLERK, and PATRICIA PRESLEY in her official capacity as Oklahoma County District Court Clerk, and all other 76 District Vol. 81 — No. 3 — 1/30/2010
Court Clerks of the State of Oklahoma, Respondents.
¶1 The petitioner, Jerry R. Fent, filed an application asking this Court to assume original jurisdiction and declare unconstitutional 28 O.S. Supp. 2008 § 152(D)(E) and (F) and 28 O. S. Supp. 2008 § 152.1(B), which require a portion of fees paid to the court clerks in civil actions to be credited to or deposited to non-judicial programs. Mr. Fent bases his standing to obtain relief upon his status as a resident taxpayer of the State of Oklahoma challenging the unlawful spending of public funds as well as upon his status as a plaintiff and attorney paying court costs in the district court of Oklahoma County.1 The respondents do not dispute the petitioner’s standing to sue. After oral argument before the Court en banc, we granted Mr. Fent’s application to assume original jurisdiction.2 ¶2 The complained-of fees are set forth at 28 O.S. Supp. 2008 § 152 and 28 O.S. Supp. 2008 § 152.1. Mr. Fent challenges 1) that portion of the filing fee in adoption cases deposited to the credit of the Voluntary Registry and Confidential Intermediary program and the Mutual Consent Voluntary Registry pursuant to 28 O.S. § 152(D); 2) that portion of the filing fee in
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civil cases deposited to the credit of the Child Abuse Multidisciplinary Account pursuant to 28 O.S. § 152(E) and §152.1(B); and 3) the sum of $3.00 assessed and credited to the Office of the Attorney General Victim Services Unit pursuant to 28 O.S. § 152(F). ¶3 Title 28 O.S. Supp. 2008 § 152 provides, in pertinent part: A. In any civil case filed in a district court, the court clerk shall collect, at the time of filing, the following flat fees, none of which shall ever be refundable, and which shall be the only charge for court costs, except as otherwise specifically provided for by law: 1. Actions for divorce, alimony without divorce, separate maintenance, custody or support $140.00 2. Any ancillary proceeding to modify or vacate a divorce decree providing for custody or support $ 40.00 3. Probate and guardianship $132.00 4. Annual guardianship report $ 30.00 5. Any proceeding for sale or lease of real or personal property or mineral interest in probate or guardianship $ 40.00 6. Any proceeding to revoke the probate of a will $ 40.00 7. Judicial determination of death $ 55.00
*** D. Of the amounts collected pursuant to paragraph 8 of subsection A of this section, the sum of Twenty Dollars ($20.00) shall be deposited to the credit of the Voluntary Registry and Confidential Intermediary program and the Mutual Consent Voluntary Registry established pursuant to the Oklahoma Adoption Code. E. Of the amounts collected pursuant to subsection A of this section, the sum of Ten Dollars ($10.00) shall be deposited to the credit of the Child Abuse Multidisciplinary Account. F. In addition to the amounts collected pursuant to subsections A and B of this section, the sum of Three Dollars ($3.00) shall be assessed and credited to the Office of the Attorney General Victim Services Unit. *** ¶4 Title 28 O.S. § 152.1 provides, in pertinent part: A. In civil cases, the court clerk shall collect and deposit in the court fund the following charges in addition to the flat fee: 1. For posting notices and filing certificates required by statute $30.00 2. For the filing of any counterclaim or setoff pursuant to Section 1758 of Title 12 of the Oklahoma Statutes $20.00
8. Adoption $102.00
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9. Civil actions for an amount of Ten Thousand Dollars ($10,000.00) or less and condemnation $147.00
7. When a jury is requested $349.00
10. Civil actions for an amount of Ten Thousand One Dollars ($10,001.00) or more $160.00
B. Of the amounts collected pursuant to the provisions of paragraphs 1, 2 and 7 of subsection A of this section, the sum of Ten Dollars ($10.00) shall be deposited to the credit of the Child Abuse Multidisciplinary Account.
11. Garnishment $ 20.00 12. Continuing wage garnishment $ 60.00 13. Any other proceeding after judgment $ 30.00 14. All others, including but not limited to actions for forcible entry and detainer, judgments from all other courts, including the Workers’ Compensation Court $ 82.00 15. Notice of renewal of judgment $ 20.00 184
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*** ¶5 Mr. Fent contends that the collection of money by the court clerks for the use of the Department of Human Services and the Attorney General is an illegal tax on litigants and is a violation of the open access to the courts and due process of law provisions of the Oklahoma Constitution. Mr. Fent asserts that the facts are not in dispute and that this Court may decide a pure question of law. He asserts that court
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filing fees are taxes when they are transferred to a non-court state agency for “their general operations.” He argues that court fees/taxes collected and used for non-court entities is a violation of the Oklahoma Constitution’s “open access to the courts” mandated by Okla. Const., art. 2 § 6. Art. 2 § 6 provides: “The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.” ¶6 Not long after statehood, this Court ruled that the imposition of court fees is not a denial of or sale of justice within the meaning of Article 2 § 6 provided such fees are uniform, reasonable and related to the services provided. In In re Lee, 1917 OK 458, 168 P. 53, it was asserted that a $25 docket fee imposed as costs in each case filed in the Supreme Court was a “sale of justice” prohibited by Art. 2 § 6. This Court explained that the provision was designed to abolish the fines that were anciently paid to expedite or delay law proceedings and procure favor. We said that the provision was never intended to guarantee the right to litigate entirely without expense to the litigants, nor to impose upon the public the entire burden of the expense of the maintenance of the courts. 168 P. at 55. The Court cited with approval State v. Judges, 21 Ohio St. 1, 12, stating that the court knew of no constitutional provision that would “forbid exacting from persons requiring and who are especially benefitted by the performance of official services, a reasonable compensation therefor, to be paid into the public treasury to reimburse the public for the expense incurred in providing and maintaining such offices.” The Court noted that such officers are but the agents of the state for transacting the public business; and it is, in its nature, a matter wholly immaterial to those requiring their services, whether the amount to be paid therefor goes to the officer, or into the public treasury, provided no more is exacted than is just and reasonable for the facilities afforded, and the services performed. Id. ¶7 In Lee we said that the purpose of the fee is to reimburse the state for the expenses incurred in providing and maintaining all of the officers and other facilities of the court and is only intended as compensation to the state Vol. 81 — No. 3 — 1/30/2010
for services rendered, not only by the clerk, but by the entire court.3 Even where the fees collected by the clerk were more than sufficient to reimburse the state for the entire expense of maintaining the clerk’s office, such fees were less than the amount appropriated to pay the salaries of the justices, commissioners, marshal, and other expenses of maintaining the court. 168 P. at 56. The statute prescribed a fee to the public for services rendered by their officers and was not exacted for revenue, but as compensation; thus, it was not a revenue measure within the meaning of the constitutional requirement that such bills originate in the House of Representatives. 1917 OK 458 ¶ 32, 168 P. at 57. ¶8 We relied upon the Lee case in Barzellone v. Presley, 2005 OK 86, 126 P.3d 588. In that case we first looked at whether collecting jury fees as a prerequisite to accepting the first motion to enter for filing and docketing in a pending action was constitutional under Art. 2 § 6. We then looked at whether the jury fee of $349 was excessive. We held that collecting jury fees as a prerequisite to accepting the first motion to enter was constitutional under Art. 2 § 6 and that the fee of $349 was not excessive when considered with the minimum average costs of providing juries. We said that the constitution was never intended to guarantee the right to litigate entirely without expense to the litigants nor to impose upon the public the entire burden of the expense of the maintenance of the courts, citing In re Lee. We noted that by 1932, the right to reasonable court fees was so generally accepted that its discussion seemed unnecessary. The imposition of such fees was determined not to be a denial or sale of justice within the meaning of Art. 2 § 6 provided they were uniform, reasonable and related to the services provided. We adopted the rationale of In re Lee, stating that the purpose of the jury fee is to reimburse the state for the expenses incurred in providing and maintaining all of the officers and other facilities of the court, and that it is intended as compensation to the state for services rendered, not only by the clerk, but by the entire court. We said that court fees compensate for the expenses incurred in providing and maintaining all of the court officers and facilities. Id., fn. 56. ¶9 In 2004, this Court looked at the right to access to the courts provision in Mehdipour v. State Dept. of Corrections, 2004 OK 19, 90 P.3d 546. There we looked at the “three strikes” rule
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which held that inmates who ordinarily could proceed in forma pauperis were required to prepay filing fees in civil proceedings if they previously had filed three or more meritless civil lawsuits. We held that the statue was not unconstitutional on either right of access to the courts or due process grounds. We noted that such a statute does not close the courthouse door to inmates who frequently file cases, but rather it merely prohibits them from enjoying in forma pauperis status. We stated that Art. 2 § 6 was not intended to guarantee the right to litigate entirely without expense to the litigants, nor to impose on the public the entire burden of the expense of the maintenance of the courts, citing In re Lee. Mehdipour, p.554, ¶ 20. We stated that court costs are imposed primarily to recoup costs for the state and they serve as a mechanism for judicial resource allocation. Id., fn. 45. ¶10 The rationale of these cases is that the purpose of the court fees is to reimburse the state for money that otherwise would have to be appropriated for the maintenance of the courts. The legislature may impose court costs and not violate the open access or sale of justice clause when such costs are in the nature of reimbursement to the state for services rendered by the courts. The connection between filing fees and the services rendered by the courts or maintenance of the courts is thus established. ¶11 Oklahoma is not alone in requiring that court filing fees must be related to services rendered by the courts or maintenance of the courts. To the same effect as In re Lee, supra, is Cook v. Municipal Court of Pine Bluff, 699 S.W. 2d 1985 (Ark. 1985). The highest courts in a number of states having similar open access to the courts provisions in their constitutions have held that filing fees that go to fund general welfare programs and not court-related services are unconstitutional.4 ¶12 The Supreme Court of Illinois in 1984 struck down as unconstitutional a $5 filing fee charged in dissolution of marriage cases to fund a domestic violence program. Crocker v. Finley, 459 N.E.2d 1346 (Ill. 1984). That court held that using court fees to fund a general welfare program of the state violated the free access and due process clauses by imposing an unreasonable burden on litigants. Earlier, the Illinois court had upheld a $1.00 fee imposed on every litigant for the maintenance and operation of the county law library, finding 186
that the presence of the law library was conducive to the administration of justice and may have constituted an improvement to the court system. Ali v. Danaher, 265 N.E.2d 103 (Ill. 1970). In 1986, the Illinois Supreme Court reaffirmed the Crocker decision, holding that a fee applied to marriage licenses was unconstitutional as a denial of due process where the statute required the county clerk to pass a portion of the marriage license fee to the Domestic Violence Shelter and Service Fund. Boynton v. Kusper, 494 N.E.2d 135 (Ill. 1986). In Zamarron v. Pucinski, 668 N.E.2d 186 (Ill. App. 1996) the Illinois Court of Appeals upheld the constitutionality of an act that imposed a surcharge on civil litigation filing fees to fund court automation because the fee was court-related. In Mellon v. Coffelt, 730 N.E.2d 102 (Ill. App. 2000) the Illinois Court of Appeals upheld as constitutional a filing fee charged to litigants to support a court-annexed mandatory arbitration program. Likewise, the Supreme Court of New Hampshire upheld a mandatory $50.00 fee charged to each party under a temporary superior court rule requiring mandatory alternative dispute resolution against a challenge that it violated state constitutional provision guaranteeing the right to obtain justice freely. LaMarche v. McCarthy, 965 A.2d 992 (N.H. 2008). The validity of such fees in these cases depended on whether they were deemed “court-related.” ¶13 The Florida Supreme Court upheld a statute that allocated an excess fee of $3.00 for maintenance of a county law library, finding that a county law library is essential to the administration of justice today and that it was appropriate that its cost be assessed against those who make use of the court systems of the state. Farabee v. Board of Trustees, Lee County Law Library, 254 So. 2d 1 (Fla. 1971). The court distinguished and receded from Flood v. State, 117 So. 385 (1928) which had held a fee to fund law libraries unconstitutional. The Farabee court pointed out that the distinguishing point in Flood was that the balance of the funds were to be used for general county purposes as directed by the board of county commissioners and because of that, it could not be said that the fee levied was a cost of the administration of justice. ¶14 The Louisiana Supreme Court, in Safety Net for Abused Persons v. Segura, 627 So.2d 1038 (La. 1997), struck down a statute that directed the clerk of two city courts and two municipal courts to collect an additional fee of $30.00 in civil and criminal cases to be deposited into a
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special fund to benefit a private non-profit corporation that had contracted with the state to provide counseling and shelter for domestic abuse victims, a 24-hour hotline, domestic abuse prevention programs and rape crises intervention, among other services. The court determined that the charge was a tax rather than a fee because the money went, not to court services or to any other entity associated with the judicial system, but to a private nonprofit corporation to be used at its discretion for domestic violence programs. The court observed that such charge is not a fee assessed to defray the expenses of litigation or to support the court system, but rather it was a revenue-raising measure designed to fund a particular social program. 627 So.2d at 1041. The Louisiana court chose to follow the trend of courts that limit the imposition of court fees to instances where such fees actually fund functions of the judicial system. It said that where there is a statute imposing a tax on all civil filings to fund a program far-removed from the judicial process, it must fail as imposing an unconstitutional filing fee in violation of the right of access to the courts and the separation of powers doctrine. ¶15 The Supreme Court of Texas rejected a statute that raised the filing fee to $75 and directed that $40 of it be forwarded to the state’s general revenue fund. In LeCroy v. Hanlon, 713 S.W.2d 335, 342 (Tex. 1986), the court held that filing fees and taxes may be imposed only for purposes relating to the operation and maintenance of the courts and may not be forwarded to the state’s general revenue fund. The court determined that this constituted a general revenue tax on the right to litigate because the money went to other statewide programs, outside the judiciary. The court stated that charging litigants who are able to pay a reasonable fee for judicial support services does not violate the open-courts provisions. Though such fees interfere somewhat with access to the courts, they are permitted because they go for court-related purposes. The court said that filing fees that go into state general revenues to pay for other programs besides the judiciary are unreasonable impositions on the Texas constitution’s right of access to the courts because the fees can be spent on programs other than the judiciary. Id. ¶16 The recurring element in these cases is that fees or costs that are not deemed to be for court-related purposes are violative of the Vol. 81 — No. 3 — 1/30/2010
open access to the courts guarantee. The upshot is that such fees, whatever they are called, impose an unreasonable burden on litigants. Cf. Crocker v. Finley, 459 N.E. 2d 1346 (Ill. 1984). A connection between filing fees imposed and the services rendered by the courts or for maintenance of the courts is required. ¶17 Accordingly, we must determine whether the fees complained of in the case at bar violate the Oklahoma Constitution’s guarantee of access to the courts by determining whether such fees are for the purpose of reimbursing the state for maintenance of the courts or for services rendered by the courts. Mr. Fent has not challenged the reasonableness of the filing fees, but rather challenges the transfer of a portion of the filing fees in civil cases to certain non-judicial programs. ¶18 We turn to the specific funds complained-of by Mr. Fent: I. The Voluntary Registry and Confidential Intermediary Program and the Mutual Consent Voluntary Registry established pursuant to the Oklahoma Adoption Code by Laws 1997, c. 366 § 46, effective November 1, 1997. ¶19 The Mutual Consent Voluntary Registry is codified at 10 O.S. 2001 § 7508-1.2 of Oklahoma’s Adoption Code, under Adult Adoptee Services. The Department of Human Services (DHS) is directed to establish and administer, either directly or through a contractor, a voluntary registry where eligible persons may indicate their willingness to have their identity and whereabouts disclosed to each other under specified conditions. Section 7508-1.3 establishes a Confidential Intermediary Search Program that may be used by eligible persons to locate an adult biological relative with whom contact has been lost through adoption or termination of parental rights. DHS may charge the person initiating the search for the actual expenses incurred and also a reasonable fee to compensate the confidential intermediary and for the administration of the program. The program may be operated by DHS or outsourced. II. Child Abuse Multidisciplinary Account Fee created by Laws 2000, ch. 38 § 2, formerly 10 O. S. Supp. 2008 § 7110.1, renumbered by Laws 2009, HB 2028, ch. 233 § 295, emerg. eff. May 21, 2009, as Title 10A O.S. § 1-9-103. ¶20 The Child Abuse Multidisciplinary Account (CAMA) is a revolving fund in the Department of Human Services (DHS) to be
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administered by DHS for the benefit of the children of Oklahoma.5 The stated purpose of the act is to ensure coordination and cooperation between all agencies involved in order to increase the efficiency in handling child sexual abuse or child abuse and neglect cases and to minimize the stress created for the child by the legal and investigatory process, as well as formalize a case review process. Section 1-9-102 (formerly 10 O.S. § 7110) directs each district attorney, in coordination with the child abuse training and coordination council, to develop a multi-disciplinary child abuse team in each county which shall intervene in reports involving child sexual abuse or child physical abuse or neglect. Wherever feasible, law enforcement and child welfare shall conduct joint investigations, develop a written protocol for investigating such cases and interviewing child victims. ¶21 The CAMA fund is to be made available to eligible coordinated multidisciplinary child abuse teams, non-urban child advocacy centers, mid-level non-urban child advocacy centers and urban child advocacy centers. The team members of the child abuse teams are: 1) mental health professionals; 2) law enforcement officers; 3) medical personnel; 4) DHS Child Protective Services personnel and 5) the district attorney or assistant district attorney.6 III. The Office of the Attorney General Victim Services Unit created by Laws 2005, ch. 348 § 1, effective July 1, 2005, amended Laws 2007, ch. 156 § 6. ¶22 Title 74 O.S. Supp. 2008 § 18p-1 creates a Victim Services Unit within the office of the Attorney General. The duty of the unit is to provide services for those who require domestic violence or sexual assault services through an agency, organization, facility or person that offers shelter residential services or support services, which may include counseling, case management, referrals or other similar services to victims or survivors of domestic abuse, sexual assault or stalking. Section 18p-3 authorizes and directs the attorney general to enter into agreements with and to contract for the shelter and other services that are needed for victims of domestic abuse, sexual assault or batterers intervention programs. ¶23 These three programs, while laudable, are not related to services provided by the courts for which reimbursement to the State is permitted by imposing fees on those making use of the courts. These three programs are not 188
for the maintenance or support of the court system, nor do they defray expenses of the court system. Though such programs may indisputably be worthwhile, and the provision of such services necessary, they do not serve a judicial or even a quasi-judicial function. The possibility that some persons who seek these services may eventually seek redress through the court system and that these programs may enable some of the persons to gain access to the judicial process is too remote and speculative. Cf. Safety Net for Abused Persons v. Segura, 692 So.2d at 1043-1044. ¶24 The three programs are social welfare programs under the operation of the executive branch of government. The worthiness or the desirability of these programs is not the issue before the Court today. These programs have been deemed worthy of creation by the legislature. It is the funding of these programs through the use of fees imposed on litigants that is impermissible. The legislature has imposed a fee or tax on those making use of the courts and has directed the court clerks to deposit those funds to the credit of these programs. The challenged statutes require the judicial branch of government to collect monies to be used to help fund social welfare programs operated by the executive branch of government. The courts may not be a tax collector for the executive branch of government.7 ¶25 The complained-of fees that are imposed upon litigants filing civil cases in Oklahoma do not fund functions of or maintenance of the courts. We hold that the open access to the courts is violated if persons seeking to litigate in court are assessed and required to pay for programs that have no relation to the services being provided or to the maintenance of the courts.8 While litigants should certainly have to bear a portion of the costs of operating the courts, they should not bear the burden of funding unrelated state programs. ¶26 Today’s decision finding 28 O.S. § 152(D)(E)(F) and 28 O.S. § 152.1(B) unconstitutional calls for prospective application. Ordinarily, an unconstitutional statue confers no rights, creates no liability, and affords no protection. Yet a well-recognized and well-reasoned exception to this rule is that a declaration of a law’s constitutional invalidity should not be applied so as to work a hardship or impose liability upon a public official who has acted in good faith and relied on the statute’s validity before a court has declared it invalid or
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before another proper official has given notice that the statute fails to conform to the fundamental law. Liddell v. Heavner, 2008 OK 6, 180 P.3d 1191, 1203-04, citing Bd. of Comm’rs of Pottawatomie Co. v. A.C. Davis & Sons, 1939 OK 33, 86 P2d 782, 783. When an invalid statute calls for a compulsory discharge of statutory duties by public officials who rely on the presumptive validity of statutes, this Court may give its pronouncement purely prospective effect. Okla. Education Ass’n, Inc. v. Nigh, 1982 OK 22, 642 P.2d 230, 239. The court clerks of the 77 counties were entitled to rely on the basic presumption of constitutionality of 28 O.S. Supp. 2008 § 152(D),(E) and (F) and § 152.1(B). Cf. Wade v. Bd. Of Comm’rs of Harmon Co., 1932 OK 724, 17 P.2d 690; Bd. Of Co. Comm’rs of Pottawatomie Co. v. A.C. Davis & Sons, 1939 OK 33, 86 P.2d 782. ATTORNEY FEES ¶27 Mr. Fent asks for attorney fees under the “common fund/benefit” theory. The common fund doctrine is an exception to the general rule that attorney fees are not recoverable absent some statutory authority therefor or an enforceable contract. Oklahoma Tax Commission v. Ricks, 1994 OK 115, 885 P.2d 1336, 1339. When an individual’s efforts succeed in creating or preserving a fund that benefits similarly situated non-litigants, equity powers may be invoked to charge that fund with attorney fees for legal services rendered in its creation or preservation. Id. The created or preserved fund must be brought under the direct supervision of the court. Id. The idea is that those who benefit from the fund’s preservation should contribute to the expense of litigation. In the case at bar, there is no fund from which attorney fees can be paid — this was not a suit brought in order to preserve or protect a fund that benefits the petitioner and others. In State ex rel. Poulos v. State Bd. of Equalization for the State of Oklahoma, 1982 OK 68, 646 P.2d 1269, we upheld a challenge to the constitutionality of the system of ad valorem property taxation in all of the 77 counties in Oklahoma as implemented by the Oklahoma Tax Commission and the State Board of Equalization in an original proceeding before this Court. We found that because no common fund under the control of this Court was created as a result of the litigation, there was not a fund out of which we could order attorney fees to be paid. Id. at p. 1275. ¶28 This opinion shall be prospective and become effective on the date it becomes final. Vol. 81 — No. 3 — 1/30/2010
DECLARATORY RELIEF GRANTED. ¶29 CONCUR: TAYLOR, V.C.J., HARGRAVE, OPALA, KAUGER, WATT, COLBERT, JJ. ¶30 DISSENT: WINCHESTER (BY SEPARATE WRITING), REIF (JOINS WINCHESTER, J.), JJ. ¶31 DISQUALIFIED: EDMONDSON, C.J. 1. Mr. Fent essentially is arguing that the legislature should act constitutionally, through appropriations, to fund the three programs rather than imposing fees that are in effect taxes on litigants in civil cases. 2. The dissent agrees that the matter before the Court is publici juris but argues that there is no urgency involved that would require a speedy determination of the matter in this Court, relying on Keating v. Johnson, 1996 OK 61, 918 P.2d 51. In Keating, this Court declined to assume original jurisdiction where the issue was the constitutionality of appointments to certain boards and commissions. In the case at bar, the issue affects the funding of all of the courts in the state and affects all of those who file lawsuits in those courts. Likewise it affects the funding of the three legislatively-established programs administered by the attorney general and DHS. The matter is of sufficient urgency to necessitate a speedy determination by this Court before commencement of the legislative session. 3. The Court specifically considered the Governor’s message to the legislature on the subject, as indicative of legislative intent: “Every state agency with a few exceptions should be made at least partially self-sustaining. The courts which are a necessary agency for the peaceable settlement of civil controversies, and essential for good government, should not be supported entirely by the taxpayers. The litigants in civil cases should at least bear a part of these burdens. There is no reason why the peaceable man who settles his matters without legal controversies should be taxed to furnish this legal luxury entirely to the litigious citizen. The record shows that it costs the state on an average of about $50 for every civil case appealed to the Supreme Court. I accordingly recommend that a docket fee be taxed in the sum of $25 as a part of the costs in every such case . . .” 168 P. at 56. 4. A few appellate courts that have considered due process/equal protection challenges have upheld similar statutes after finding a rational basis between the public interest to be served and the means to accomplish them. See Browning v. Corbett, 734 P.2d 1030 (Ariz. App. 1987)(fees for domestic violence shelter fund and child abuse prevention and treatment fund upheld against due process/equal protection challenge; the court stated that access to courts was not prohibited because an indigent seeking a divorce in Arizona can obtain a waiver of the filing fees); Gange v Clerk of Burleigh County District Court, 429 N.W.2d 429 (N. Dak. 1988) ($50 fee charged to both parties in a divorce action to fund state displaced homemaker program upheld against due process/equal protection challenge; court noted that the fee would not prevent anyone from getting a divorce because the fee could be waived if the person were indigent); and Villars v. Provo, 440 N.W.2d 160 (Minn.App. 1989) (fees to fund displaced/homemaker/battered women programs upheld against due process/equal protection challenge; court noted that section of Minnesota constitution which requires that justice be obtained “freely” and “without purchase” was not violated because that clause was aimed at the corrupt practice of taking bribes and exacting legal fees for the administration of justice). 5. CAMA shall consist of all monies received by DHS pursuant to §§1-9-103 and 1-9-104 of Title 10A (formerly §§ 7110.1 and 7110.2 of Title 10) and all monies accruing to the credit of the fund are deemed to be appropriated and shall be budgeted and expended by DHS for the purposes provided in §§ 1-9-102 and 1-9-104 of Title 10A. Expenditures from the account are made upon warrants issued by the State Treasurer against claims filed as prescribed by law with the director of state finance for approval and payment. The monies deposited in the CAMA account shall at no time becomes monies of the State and shall not become part of the general budget of DHS or any other state agency. 6. The functions of the multidisciplinary abuse teams are to: 1) conduct joint investigations; 2) develop protocol for investigating and interviewing child victims; 3) encourage cooperation between all involved agencies to increase efficiency and minimize stress for the allegedly abused child by the legal and investigatory process; 4)
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increase communication and collaboration among the professionals responsible for reporting, investigating, prosecuting and treating; 5) improve the delivery of services; 6) encourage the development of team members expertise through training; 7) formalize a case review process and standardize investigative procedures. § 1-9-102(C). 7. Okla. Const., art. 4§ 1 provides: § 1. Departments of government -Separation and distinction The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. 8. Because we find the statutes unconstitutional as a violation of the open access to the courts provision of the Oklahoma Constitution, we need not address Mr. Fent’s due process argument.
WINCHESTER, J., with whom REIF, J., joins, dissenting: ¶1 The majority opinion grants Mr. Fent’s application to assume original jurisdiction and declares unconstitutional 28 O.S.Supp.2008, § 152(D)(E)(F) and § 152.1(B).1 I would deny his application because he has not shown that commencing a case in the district court is an inadequate remedy. ¶2 This Court’s opinion in Keating v. Johnson, 1996 OK 61 ¶ 10, 918 P.2d 51, 56, is particularly instructive in the case now before the Court: “A fairly consistent theme running through most of our cases where original jurisdiction has been assumed has been that the matter must be affected with the public interest and there must be some urgency or pressing need for an early determination of the matter.” Although Mr. Fent contends that urgency or pressing need is present in this matter because these funds are continuing to be collected, the Child Abuse Multidisciplinary Account was imposed starting in 2000,2 the adoption fee was imposed in 1997,3 and the victim service unit fund was enacted in 2007.4 ¶3 Like the facts in Keating, this dispute is clearly publici juris because of the conflict between the powers of State government; in this case, the legislative branch and judicial branch. In Keating the Court refused to assume original jurisdiction. The Court observed that the petitioners had based their claim solely on its public nature, but failed to make any showing there is any urgency or immediacy involved that would require a speedy determination of the controversy. The Court added that its primary function is appellate in nature. Keating, 1996 OK 61 ¶ 18, 918 P.2d at 58. ¶4 The better practice would be to allow all the agencies involved to present their evidence and arguments to the district court, so the court may determine which fees now being 190
collected by the court clerks are court-related, and whether a connection exists between the filing fees imposed and the services rendered by the courts. Due process requires this. Because these issues should be presented in the district court, I respectfully dissent from the Court’s assuming original jurisdiction. 1. Majority Opinion, § 25, “We hold that the open access to the courts is violated if persons seeking to litigate in court are assessed and required to pay for programs that have no relation to the services being provided or to the maintenance of the courts.” 2. 2000 Okla. Sess. Laws, ch. 38, §§ 4(D), 5(B). 3. 1997 Okla. Sess. Laws, ch. 366, § 54(C). 4. 2007 Okla. Sess. Laws, ch. 247, § 2(F).
2010 OK 1 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION Complainant, v. EDDIE MICHAEL POPE Respondent. Case Number: SCBD #5486; OBAD #1776 Consolidated w/OBAD #1802; SCBD #5570 January 11, 2010 ORDER ¶1 On December 10, 2008, the Oklahoma Bar Association (Bar Association), notified the Office of the Chief Justice that the respondent, Eddie Michael Pope (lawyer/respondent), had pled guilty to possession of obscene material in Texas and had been given a four year deferred sentence. On August 21, 2008, the Board of Disciplinary Appeals appointed by the Supreme Court of Texas (Board), issued a judgment of suspension which suspended the respondent during the term of his deferred adjudication (until April 23, 2010). ¶2 On March 30, 2009, the Court referred to the Professional Responsibility Commission to initiate and conduct disciplinary proceedings immediately to develop a complete, non-piecemeal record examining the circumstances giving rise to the criminal charges including the respondent’s involvement/knowledge regarding the child molestation incident and the facts surrounding it which may or may not demonstrate an unfitness to practice law. ¶3 On September 12, 2009, the Oklahoma Bar Association filed a complaint which was independent of the reciprocal discipline imposed by Texas. The matters were consolidated under one surviving case number on October 20, 2009. On December 22, 2009, the Respondent voluntarily resigned from the Oklahoma Bar Association, and the Association filed an application for approval of resignation.
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¶4 THE COURT FINDS: 1. On December 22, 2009, the respondent submitted his written affidavit of resignation from membership in the Bar Association pending disciplinary proceedings. 2. The respondent’s affidavit of resignation reflects that: a) it was freely and voluntarily rendered; b) he was not subject to coercion or duress; and c) he was fully aware of the consequences of submitting the resignation. 3. The respondent states in his affidavit of resignation that he is aware that a summary/reciprocal disciplinary proceeding was initiated on December 10, 2008 pursuant to Rules 7.1, 7.2, 7.3, 7.4, and 7.7 of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch.1, App. 1-A. 4. The respondent also states that he is aware that on September 12, 2009, a formal complaint was filed by the Bar Association pursuant to Rules 6 and 7.6 of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A, alleging violations of Rule 8.4(a), (b) of the Oklahoma Rules of Processional Conduct, 5 O.S. 2001, Ch. 1 App. 3-A and Rule 1.3 of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. 5. The respondent’s resignation pending disciplinary proceedings is in compliance with all of the requirements set forth in Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A and it should be approved. 6. The official address of the respondent is: Eddie Michael Pope, 12714 Descartes Cove, Austin, Texas 78753. 7. The Bar Association has not sought the imposition of costs and the respondent asks that any costs incurred be waived. ¶5 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Eddie Michael Pope’s resignation submitted pending imposition of discipline be approved. ¶6 IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Eddie Michael Pope’s name be stricken from the roll of attorneys. Because resignation pending disciplinary proVol. 81 — No. 3 — 1/30/2010
ceedings is tantamount to disbarment, the respondent may not make an application for reinstatement prior to the expiration of 5 years from the date of this order. Pursuant to Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A, the respondent shall notify all of his clients having legal business pending in his practice within 20 days, by certified mail, of his inability to represent them and of the necessity for promptly retaining new counsel. The Respondent requests that the imposition of costs be waived, and the Bar Association has not objected to such a waiver. Accordingly, the imposition of costs is waived. 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. ¶7 DONE BY ORDER OF THE SUPREME COURT THIS 11th DAY OF January 2010. /s/ James E. Edmondson CHIEF JUSTICE ALL JUSTICES CONCUR. 2010 OK 5 ESTATE OF EVA JUNE CROWELL, DECEASED, by and through ANNA M. BOEN, Personal Representative, Plaintiff/ Appellant, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CLEVELAND, STATE OF OKLAHOMA, DEWAYNE BEGGS, as Sheriff of Cleveland County, State of Oklahoma; DEPUTY JEANNE ANN BECK; DEPUTY KENNETH ALBRECHT; and CORPORAL MICHAEL STEVENSON, Employees of the Cleveland County Sheriff’s Office, Defendants/ Appellees, and DEPUTY APRIL LYNN CUMMINS and CORPORAL MICHAEL DEAN EASLEY, Defendants. No. 106,374. January 26, 2010 CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY, STATE OF OKLAHOMA HONORABLE TOM A. LUCAS, TRIAL JUDGE ¶0 Eva June Crowell died following an acute asthma attack that she suffered while incarcerated in the Cleveland County Jail. The personal representative of her estate brought a civil rights action under 42 U.S.C. � §19831 against
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the Board of County Commissioners of Cleveland County, the Sheriff of Cleveland County, and the sheriff’s jail personnel on duty at the time of the attack. The personal representative alleged that Ms. Crowell’s death was caused by unnecessary delay on the part of the sheriff’s jail personnel in providing an inhaler to her. The defendants sought summary judgment on the ground that the delay in providing the inhaler was not actionable under � § 1983, because the delay did not involve deliberate indifference to the serious medical needs of a prisoner. The trial court granted defendants’ second motion for summary judgment, finding that the record showed no dispute of material fact on the issue of deliberate indifference. The Court of Civil Appeals affirmed. The personal representative timely sought certiorari review by this Court. We hold that the personal representative failed to support a viable claim against the Board of County Commissioners and affirm the summary judgment in favor of the Board. However, the summary judgment record reveals a controversy upon which reasonable minds could differ on the issue of whether the sheriff and jail personnel acted with deliberate indifference in the delay to provide the inhaler. The summary judgment entered in favor of these defendants is reversed and the matter is remanded for trial. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Albert J. Hoch, Jr. and Jeffrey S. Coe, Oklahoma City, Oklahoma, for Plaintiff/Appellant. David W. Lee, Lee Law Center, P.C., Oklahoma City, Oklahoma, for Defendants/Appellees. David J. Batton, Assistant District Attorney, Norman, Oklahoma, for Defendant/Appellee Board of County Commissioners. REIF, J. ¶1 Eva June Crowell died following an acute asthma attack that she suffered while incarcerated in the Cleveland County Jail. At the time of the attack, jail personnel had possession of Ms. Crowell’s inhaler. The personal representative of her estate has alleged that the jail personnel unnecessarily delayed furnishing Ms. Crowell the inhaler after being notified of her emergency need for it. The personal representative contends that this delay caused Ms. 192
Crowell’s death and violated her civil rights. Personal representative seeks damages from the Board of County Commissioners of Cleveland County, the Sheriff of Cleveland County and the jail employees on duty at the time of the asthma attack. ¶2 The defendants moved for summary judgment. They contended the delay in providing the inhaler was not actionable under � § 1983, because the delay did not involve deliberate indifference to the serious medical needs of a prisoner. Defendants supported this contention with evidentiary materials that showed a jail employee arrived with the inhaler at Ms. Crowell’s cell pod around four minutes after the emergency call. At that point, Ms. Crowell had stopped breathing and could not use the inhaler. ¶3 In response, the personal representative presented evidentiary material showing that the decedent’s cell mate told jail employees that the decedent was in emergency distress up to twenty minutes or more prior to the time when the jail employee arrived with the inhaler; that a head count was continued after notification of the emergency; and that by the time a sheriff’s employee arrived with the decedent’s inhaler, the decedent could not use the inhaler because she was no longer breathing. ¶4 Although finding the personal representative’s evidentiary material raised a question of fact as to the negligence of the sheriff’s office, the trial court ruled it did not show deliberate indifference or raise a question of fact sufficient to withstand a demurrer to the evidence or motion for directed verdict on the issue of deliberate indifference. The trial court granted summary judgment for defendants. The Court of Civil Appeals agreed that the record showed no dispute of material fact regarding deliberate indifference, and affirmed. ¶5 Upon certiorari, we have considered the evidentiary material in the light most favorable to the personal representative and hold that material questions of fact are in dispute surrounding the length of time and circumstances of the response to the emergency call. Therefore, the issue of whether the sheriff and jail personnel acted with deliberate indifference cannot not be decided on summary judgment. However, the evidentiary material shows no basis for a claim against the Board of County Commissioners as a matter of law, and we hold
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that summary judgment was properly granted in favor of the Board. FACTUAL BACKGROUND AND PROCEDURAL HISTORY ¶6 Eva Crowell was booked into the Cleveland County jail on August 4, 1999. During booking, Ms. Crowell reported that she had asthma and took Albuterol. The sheriff’s office initial plan and progress notes indicate that Albuterol was the only medication that had been brought in for Ms. Crowell at the time of her transfer from the Oklahoma City jail. According to the jail medication administration record for August 1999, Ms. Crowell’s medical instructions included two puffs on the Albuterol Inhaler four times a day. The record shows that the inhaler was provided four times a day from August 5 through August 19. According to the jail’s progress notes, on August 9, 1999, Ms. Crowell complained about “not being able to get her inhaler during the night if she needs it,” and that the amount given to her was not enough. Another notation indicates Ms. Crowell had reported that she usually has some breathing difficulty at night. ¶7 On August 20, 1999, a notation in the medication administration record indicates that the Albuterol instruction was changed to “AS NEEDED.” A second notation instructed that the Albuterol Inhaler was to be provided four times a day if needed within a 24 hour period, along with the following admonition: “(DO NOT MAKE HER WAIT - for scheduled med time).” Pursuant to the Oklahoma Department of Health State Jail Standards,2 Ms. Crowell was not allowed to keep her inhaler in her cell. The inhaler was stored in a locked cabinet in a medical room, as provided by the Detention Manual.3 The medical room was located on the second floor of the jail. The pod where Ms. Crowell was incarcerated was on the first floor of the jail. ¶8 Ms. Crowell’s inhaler had been changed from “scheduled only” medication to “as needed” medication on August 20 because she had been needing the inhaler around 2:30 to 3:00 a. m. for the preceding three or four days. According to reports of interviews conducted by the Oklahoma State Bureau of Investigation,4 there had been discussions about keeping Ms. Crowell’s inhaler in the North Control, by the inmate pod, in case she needed it and the medical rover was not on the floor.5 The North Control had a door which could be opened into the Vol. 81 — No. 3 — 1/30/2010
sally port, and a deputy could open the door and give the inhaler to Ms. Crowell as needed. Additional information in the record indicates that from the first day of her incarceration, Ms. Crowell had begged the jail nurse to give her free access to her inhaler in case of emergency.6 Additional information indicates that she had a history of asthma attacks whereby she needed her inhaler.7 Other evidentiary material indicates that Ms. Crowell had a similar incident to the asthma attack of August 25, on a previous stay at the jail, and that emergency services had to be called.8 ¶9 At the time of Ms. Crowell’s asthma attack, Deputy Jeanne Beck was working as a north control deputy in the north control booth on the second floor of the jail.9 Deputy Michael Easley was the shift supervisor, working as a detention corporal in booking. Deputy April Cummins was the med rover on duty at the time of the asthma attack. Deputy Kenneth Albrecht was working as a detention deputy, and Deputy Michael Stevenson was working as a detention corporal in the master control on the first floor. ¶10 The record shows significant discrepancies in the details of the circumstances on the morning of Ms. Crowell’s fatal asthma attack on August 25, 1999. Deputy Beck stated that she received a call for Ms. Crowell’s inhaler at 2:38 a.m., and that she noted the time on her log. Deputy Beck said she called the medical rover, Deputy Cummins, who was on the first floor conducting a head count. According to Deputy Beck, Deputy Cummins told Deputy Beck she would be there “in a minute.” Deputy Beck related she knew Deputy Cummins was aware of Ms. Crowell’s asthma problem. Deputy Beck stated that at 2:40 a.m., she heard Ms. Crowell’s cell mate, Judith Hall, say that Ms. Crowell was turning blue. At 2:41 a.m., Deputy Beck said that she radioed her colleagues, “guys, get up here now.” Deputy Beck stated that a few seconds after the call, Corporal Michael Easley and Deputy April Cummins arrived at the gate to the day room where Ms. Crowell was lying on the floor. Deputy Beck said she had no medical training, and knew nothing about asthma. Deputy Beck let Inmate Mia Adams out of her cell to assist since Adams was a nurse. Deputy Beck further stated that the emergency crew arrived at 2:44 a.m. ¶11 Corporal Stevenson stated that the first call for the inhaler was at 2:38, and that on the video monitors, he saw Corporal Easley arrive
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and begin CPR before the emergency crew arrived at 2:44 a.m. Deputy Albrecht stated that he was assigned to do head count in section C. Deputy Albrecht knew Ms. Crowell had asthma and that her inhaler was on an “as needed” basis. He heard the first report of an emergency on his radio at 2:41 a.m., and the second call about 15 seconds later, when he started toward section A on a run. He stated he arrived in the day room at the same time as Corporal Easley. He observed an inmate performing CPR on Ms. Crowell when he arrived, and at the same time, Deputy Cummins arrived with an inhaler. Deputy Albrecht noticed that Ms. Crowell appeared “purplish and gray” and that her eyes were rolled back. He stated that he and Corporal Easley checked Ms. Crowell’s pulse, and she was not breathing. He then went downstairs and escorted the emergency crew to Ms. Crowell at 2:44 a.m. ¶12 Deputy Cummins stated that at 2:38 a.m., she was in the area where inmates are booked, and clearing head count. She was the med rover and responsible for passing out medication to inmates as needed, and also to rove around the jail doing whatever needed to be done at the time. At that time, Deputy Beck received a call from Judy Hall, the cell mate of Ms. Crowell, stating that Ms. Crowell needed her inhaler. She said Ms. Crowell utilized the inhaler “quite a lot.” She told Deputy Beck it would be a minute or so before she got the inhaler, as she was clearing head count, and it was not portrayed as a life or death situation. A minute and a half later, she was en route to the med room when a second call came saying Ms. Crowell needed the inhaler right away. Deputy Cummins told Deputy Beck she was on her way to the second floor. When she got to the second floor, a third call came from Deputy Beck saying, “everyone get up here now — she’s turning blue.” She thought the log showing the third request made at 2:41 a.m. may not be accurate. She got the inhaler and she and Corporal Easley entered the pod together, and inmate Hall was pumping Ms. Crowell’s chest. ¶13 According to the OSBI report, Corporal Easley stated at that 2:38, he was booking in a prisoner when the call came for the inhaler. He heard Deputy Cummins say she would get the inhaler, and when the second call came, Deputy Cummins dropped what she was doing and went to get the inhaler. When the third call came, he went to the sally port. In his deposition, Corporal Easley stated that at the time of 194
the first call, “my med rover, Deputy Cummins, was booking someone in. We had two booking windows.” He said Deputy Cummins “continued to finish booking her — the person she was working on because it’s very hard to switch that out and have another deputy step in and do it because there’s a whole set of procedures you have to do to get someone booked in.” This account varies from Deputy Beck’s statement that Deputy Cummins was conducting a head count, and Deputy Cummins’ statement that she was clearing head count. He stated that “a few minutes later,” a second request was made for the inhaler, at which time Deputy Cummins went upstairs to the med room. He also stated that Ms. Crowell requested the inhaler a lot, and in the middle of the night. ¶14 According to the OSBl reports of the inmate interviews, Ms. Crowell’s cell mate, Judith Hall, stated that between 2:00 and 2:30, Ms. Crowell called her and said she needed her inhaler. Hall pushed the intercom button several times before anyone responded. Ms. Crowell was in distress so Hall pulled her off the top bunk by her shirt and blanket. Hall pushed the intercom again and said “she’s really needing this inhaler now — let’s go.” Hall asked for the door to be opened to get her in the day room, and a minute or so later, they told her to have Ms. Crowell meet them at the sally port. Hall wrapped a blanket around Ms. Crowell and pulled her towards a table in the day room. Ms. Crowell said she was dying and her lips were blue, and she collapsed on the floor. ¶15 In estimating the time interval between Ms. Crowell sitting up in bed in distress and reaching the table in the day room, Hall said probably 10 to 12 minutes had gone by. Hall relayed by intercom the information that Ms. Crowell’s eyes had rolled back in her head and she had stopped breathing. She did not know if there was a response, because she immediately went back to Ms. Crowell to try to get air into her. Another inmate did chest compressions. Three or four minutes after the inmates started the CPR, the sally port door opened and Deputies Albrecht, Cummins, and McDaniels arrived. They told the inmates to get back in their cells and released the inmate nurse, who checked Ms. Crowell’s pulse and gave a negative look indicating it was too late. Hall stated that Ms. Crowell never regained consciousness, and that none of the deputies ever attempted CPR.
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¶16 Teresa Walker stated that she heard hollering at 2:38, looked out her cell window, and saw Ms. Crowell on her back on the day room floor. Her cell mate was with Ms. Crowell, and started to do chest compressions. She pushed the intercom button, but no one answered, and another inmate waved and flailed her arms in front of security cameras to no avail. Walker stated that approximately 12 to 20 minutes went by before any deputies arrived. Another inmate, Michele Adams, stated that two inmates performed CPR on Ms. Crowell for at least 5 to 7 minutes. She stated that Deputy Cummins arrived and got Rebecca Dean, an LPN, out of her cell and Dean took charge of the CPR. Inmate Boyd stated that at 2:30 she heard screaming and saw Ms. Crowell on her back, and Hall pumping on Ms. Crowell’s chest. She stated that “[i]t seemed like 15 minutes before any jailer came to the scene,” and that when Deputy Cummins arrived, so did the emergency crew. Another inmate, Cheryl McMurray, estimated that it took at least 15 to 20 minutes before a response from the jailers. According to other OSBI interviews, two members of the fire department stated that they responded to the call regarding a female inmate in medical distress at approximately 2:30 a.m. ¶17 On March 22, 2005, Anna M. Boen, Personal Representative of the Estate of Eva June Crowell, decedent, filed an action against Dewayne Beggs, as Sheriff of Cleveland County, five employees of the sheriff’s office,10 and the Board of County Commissioners of Cleveland County, arising from a delay in responding to Ms. Crowell’s acute asthma attack on August 25, 1999, while Ms. Crowell was incarcerated in the Cleveland County jail. Ms. Crowell went into respiratory arrest before the inhaler arrived, was transported to a hospital, and died thirteen days after her attack. The personal representative asserted that Ms. Crowell’s death was caused by the unreasonable delay of the sheriffs’ employees in responding to the emergency call for Ms. Crowell’s inhaler. In her petition, the personal representative asserted various theories of liability, including gross negligence and reckless disregard of Ms. Crowell’s welfare for failure to provide proper medical care and medication. The personal representative also asserted violations of Ms. Crowell’s constitutional rights under the Eighth Amendment for cruel and unusual punishment, and civil rights under 42 U.S.C. � § 1983, for refusal to provide the medical care that would have saved decedent’s life, while employees knew of her serious medical condition and Vol. 81 — No. 3 — 1/30/2010
deteriorating status. The personal representative also alleged violations based on failure to properly train and supervise personnel; failure to provide proper medical care and medication; and failure to adopt appropriate procedures for dealing with emergencies. ¶18 The defendants Board of County Commissioners, Sheriff Beggs, and sheriff’s employees Albrecht, Beck, and Stevenson, filed a motion for summary judgment on February 9, 2007.11 On May 17, 2007, the court denied summary judgment with respect to the Board of County Commissioners, and with respect to the individual defendants Beggs, Albrecht, Beck, and Stevenson in their official capacities. The court granted the motion for summary judgment with respect to the individual defendants Beggs, Albrecht, Beck, and Stevenson in their individual capacities.12 ¶19 On March 7, 2008, the defendant Commissioners, Sheriff Beggs, and sheriff’s employees Albrecht, Beck and Stevenson filed a second motion for summary judgment. Defendants asserted that the second motion was proper because after presentation of the first motion, the personal representative’s expert stated in deposition that a four minute response time was “not bad.” Defendants further asserted that the Board of County Commissioners was not a proper party to the � § 1983 lawsuit; that none of the employees were deliberately indifferent to Ms. Crowell’s alleged serious medical needs, and that no action of the employees, lack of training, or custom or policy of the sheriff’s office, caused Ms. Crowell’s death. ¶20 The trial court denied the second motion for summary judgment on June 6, 2008, but allowed for the decision to be reconsidered at pretrial. At pretrial, the court found that the evidentiary materials submitted by the personal representative supported only a finding of negligence and not of deliberate indifference. The court granted summary judgment on defendants’ motion.13 MATERIAL QUESTIONS OF FACT ARE IN DISPUTE REGARDING DELIBERATE INDIFFERENCE, PRECLUDING SUMMARY JUDGMENT FOR THE DEFENDANT SHERIFF AND JAIL PERSONNEL ¶21 Summary judgment is appropriate only when there is no substantial controversy as to any material fact. 12 O.S.2001, ch. 2, app. 1, Rule 13; Copeland v. Tela Corp., 1999 OK 81, � ¶ 4,
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996 P.2d 931, 932. The moving party has the initial burden of showing that there is no substantial controversy as to any material fact. Bowers v. Wimberley, 1997 OK 24, � ¶ 14, 933 P.2d 312, 315. If the moving party meets its burden, then the adverse party has the burden of demonstrating the existence of a dispute of material facts. Hughey v. Grand River Dam Auth., 1995 OK 56, � ¶ 8, 897 P.2d 1138, 1143. Circumstantial evidence may be presented to successfully oppose a motion for summary judgment. Copeland, 1999 OK 81 at � ¶ 4, 996 P.2d at 933. ¶22 Both the trial court and reviewing appellate court bear an affirmative duty to test all evidentiary material tendered in the summary process for its legal sufficiency to support the relief sought by the moving party. Manley v. Brown, 1999 OK 79, � ¶ 22, 989 P.2d 448, 455. The focus of the trial court and appellate court is whether the tendered proof in the record reveals only undisputed material facts supporting but a single inference that favors the moving party. Id. at � ¶ 22, n.28, 989 P.2d at 455. However, all facts and inferences must be viewed in a light most favorable to the non-moving party. Id. at � ¶ 22, 989 P.2d at 455. If a reasonable person might reach a different conclusion from the facts than that suggested by the motion for summary judgment, granting summary judgment would be improper. Copeland, 1999 OK 81 at � ¶ 4, 996 P.2d at 933. Upon review, we conclude the evidentiary material in the case at hand (1) demonstrates material facts are in dispute that preclude summary judgment in favor of the sheriff’s employees on the issue of the deliberate indifference, and (2) circumstantial evidence supports a reasonable inference that the Sheriff, as the supervising authority, likewise acted with deliberate indifference. ¶23 We reach a different conclusion, however, concerning the personal representative’s claims against the Board of County Commissioners of Cleveland County. Under Oklahoma law, the sheriff is the final policymaker for a county jail.14 The sheriff, and not the board, is responsible for medical care in Oklahoma.15 Also, the board of county commissioners is not liable under 42 U.S.C. � §1983 because the board has no statutory duty to hire, train, supervise, or discipline county sheriffs or deputies.16 Therefore, the summary judgment in favor of the Board of County Commissioners of Cleveland County was proper as a matter of law. ¶24 Personal representative bases her claim against the Cleveland County Sheriff and jail 196
personnel upon a violation of the Eighth Amendment. This Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 3121 (1986); Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). ¶25 The United States Supreme Court has recognized that “deliberate indifference to serious medical needs of prisoners” may constitute cruel and unusual punishment under the Eighth Amendment. Estelle, 429 U.S. at 104; Farmer v. Brennan, 511 U.S. 825 (1994). The Eighth Amendment therefore applies to prison officials when they provide medical care to inmates. See Estelle, 429 U.S. at 103. ¶26 Where a prisoner’s Eighth Amendment claims have arisen in the context of the provision of medical care, the prisoner must show “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has two elements, “[1] the seriousness of the prisoner’s medical need and [2] the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); see Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)(citations omitted). The prisoner must show (1) objectively that he suffered a sufficiently serious deprivation and (2) subjectively that prison officials acted with deliberate indifference in allowing or causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). ¶27 With respect to the first element, where a prisoner establishes the existence of a serious medical need, a prisoner satisfies the objective requirement for proving an Eighth Amendment violation. Farmer, 511 U.S. at 834. A medical need is considered serious “if the failure to treat the prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” “McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). The standard for an Eighth Amendment violation contemplates “a condition of urgency” that may result in “degeneration” or “extreme pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)(quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. den., 513 U.S. 1154 (1995)); see also Harrison v. Barkley,
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219 F.3d 132, 136-37 (2d Cir. 2000)(“A serious medical condition exists where ‘the failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain.’”) (quoting Chance, 143 F.3d at 702). ¶28 Relevant factors for determining whether a serious medical need exists include “[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Chance, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d at 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)). ¶29 In the case at hand, “the responsibility for medical care of persons incarcerated in the Cleveland County Detention Center . . . [is placed] squarely on the sheriff.”17 “The sheriff makes the policies and provides the supervision.”18 The sheriff of each county in Oklahoma has a statutory duty to provide “medical care when required, and all necessities for the comfort and welfare of prisoners.” 57 O.S.2001 � §52. This duty underlies the sheriff’s liability as the supervisory authority. ¶30 “A supervisor is not liable under section §1983 unless an ‘affirmative link’ exists between the [constitutional] deprivation and either the supervisor’s ‘personal participation, his exercise of control or direction, or his failure to supervise.’” Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)(quoting Specht v. Jensen, 832 F.2d 1516, 1524 (10th Cir. 1987)(reh’g en banc granted on other grounds, and judgment, but not opinion, vacated.)) However, a plaintiff may meet this burden by showing, that the “supervisory defendant breached a duty imposed by state or local law which caused the constitutional violation.” Id. (citations omitted). ¶31 In Oklahoma, as previously stated, a sheriff has a statutory duty to provide medical care to prisoners and is responsible for the proper management of the jail and the proper conduct of the jail personnel. “As a result, ‘a sheriff is accountable in a � §1983 action whenever a sheriff, in a position of responsibility, knew or should have known of the misconduct, and yet failed to prevent future harm.’” Id. (quoting Anthony v. Baker, 767 F.2d 657, 666 Vol. 81 — No. 3 — 1/30/2010
(10th Cir. 1985)). Where liability is based on what the defendants knew or should have known, “self-imposed ignorance” on the part of the defendants is not determinative, and a plaintiff may show the matters that the defendants knew or should have known by circumstantial evidence and inference. Copeland, 1999 OK 81 at �� ¶¶ 8 and 10, 996 P.2d at 933-34. ¶32 Depending on its degree, asthma can be a serious medical condition. Garvin v. Armstrong, 236 F.3d 896 (7th Cir. 2001). With respect to the first element of � §1983 claim against the Sheriff and jail personnel, a reasonable fact finder could conclude from the evidence that Ms. Crowell’s asthma constituted an objective, serious medical condition. Viewing the evidence in the light most favorable to the personal representative, the degree of Ms. Crowell’s asthma was severe. Ms. Crowell frequently had urgent need for the inhaler, to the point that a discussion had taken place regarding placement of the inhaler close to her cell. Her dosage had been increased to as needed, and she had been calling for the inhaler during the night. The jail personnel recognized the severity of her condition as evidenced by the notation to not make her wait for the inhaler. The personal representative’s evidentiary material was sufficient to create a question of fact regarding a serious medical condition. ¶33 Once a party has established the existence of a prisoner’s serious medical need, the party must then show that prison officials responded to the serious medical need with deliberate indifference. Farmer, 511 U.S. at 834. Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm. Id. at 835. Before it can be established that a prisoner’s civil rights have been abridged regarding medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980)(citing Estelle, 429 U.S. at 105-06); see also Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)(“Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth Amendment rights.”); McGuckin, 974 F.2d at 1059. Deliberate indifference is “a state of mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for the prison-
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er’s interests or safety.’” Farmer, 511 U.S. at 834 (quoting Whitley, 475 U.S. at 319). ¶34 In general, deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere with medical treatment. Deliberate indifference may also be shown by the way in which prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). An official acts with the requisite deliberate indifference when that official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. ¶35 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would provide additional support for the inmate’s claim that the defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at 1060. ¶36 In the present case, the duration of the delay, and the circumstances surrounding the delay, are sharply disputed. The personal representative submitted evidentiary material indicating that jail personnel were aware that urgency was essential when Ms. Crowell needed her inhaler, that jail personnel did not respond promptly when the call was made for the inhaler, and that the delay in bringing the inhaler to Ms. Crowell was as long as twenty minutes. The personal representative’s evidentiary material also indicated that jail personnel recognized that placement of the inhaler in locked storage delayed the response time for bringing the inhaler to Ms. Crowell, and a proposal to keep the inhaler in closer proximity had been discussed but not implemented. The medical evidence showed that Ms. Crowell died from an acute asthma attack. 198
¶37 Under these circumstances, a reasonable fact finder could conclude that the jail personnel and Sheriff acted with deliberate indifference to Ms. Crowell’s serious medical needs. We conclude that there were genuine issues of material fact with respect to deliberate indifference arising from the delay in providing medical care to Ms. Crowell. Accordingly, the summary judgment in favor of defendants Beggs, as sheriff, and Albrecht, Beck, and Stevenson, in their official capacities, is reversed and the cause is remanded for trial. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVILAPPEALS VACATED; JUDGMENT OF THE TRIAL COURT AFFIRMEDIN PART, REVERSED IN PART, AND REMANDED. ¶38 EDMONDSON, C.J., HARGRAVE, OPALA, KAUGER, WATT, COLBERT, and REIF, JJ., concur. ¶39 TAYLOR, V.C.J., with whom WINCHESTER, J., joins, dissenting. The Court of Civil Appeals was correct. I would affirm the trial court on the issue of “deliberate indifference” and all other issues. 1. The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. � §1983. The statute requires an actual connection between the actions of the defendants and the deprivation suffered by the plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of � §1983, if he does an affirmative act, participates in another’s affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978). 2. Standard 310:670-5-8 of the Jail Standards provides: Adequate medical care shall be provided in a facility. The administrator shall develop and implement written policies and procedures for complete emergency medical and health care services. Policies and procedures shall include at least the following: .... (2)(A) . . . Prescription medications shall be provided to the prisoner as directed by a physician or designated medical authority. . . . Neither prescription or over-the-counter medications shall be kept by a prisoner in a cell with the exception of prescribed nitroglycerin tablets. .... (5) Each facility shall have a plan and provide twenty-four (24) hour emergency medical and dental care. 3. The Cleveland County Detention Manual provides: 6.01 Medical Services Policy All Cleveland County Detention Center inmates shall be entitled to health care comparable to that available to citizens in the surrounding community. . . . No Deputy or other employee will ever summarily or arbitrarily deny an inmate’s request for medical services. .... 6.06 Medication/Pharmaceutical Policy
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3. Storage: All medication, both prescription and non-prescription, and all needles/syringes are stored in the locked cabinet in the medical treatment room. 4. Defendants moved to strike the Representative’s proffered OSBI investigative reports on the grounds that they constituted inadmissible hearsay. The reports are signed by the preparing OSBI agent, and are summaries of interviews with jail personnel and inmates. On June 24, 2008, the trial court converted the motion to strike to a motion in limine, and granted it as to the admissibility of the OSBI’s Investigative Report at trial as direct evidence. The Court of Civil Appeals, in footnote 5 of its opinion, stated, “The trial court ruled that Representative’s proffered OSBI Investigate Report, which contained summaries of interviews with certain Sheriff’s Employees and inmates, was inadmissible hearsay.” The trial court’s ruling, however, pertained to its inadmissibility at trial independently as “direct evidence,” and did not address its consideration for purposes of reviewing a summary judgment motion. On summary judgment, under Oklahoma District Court Rule 13, 12 O.S. Supp.2002, ch. 2, app. 1, a procedure is set forth for challenging the admissibility of evidentiary material submitted by another party when that material “does not appear to be convertible to admissible evidence at trial.” Rule 13(c). The evidentiary materials attached to a response to a motion for summary judgment are not held to the standard of competent, admissible evidence. See Julian v. Secured Investment Advisors, 2003 OK CIV APP 81, ¶¶ 17-18, 77 P.3d 604, 607; Davis v. Leitner, 1989 OK 146, ¶ 13, 782 P.2d 924, 926. The evidence compiled in the reports has probative value, controverts defendants’ statement of undisputed facts in parts, and is convertible to admissible evidence at trial. The OSBI reports were sufficient evidentiary materials for consideration on summary judgment. 5. Oklahoma State Bureau of Investigation Reports, Interview of Deputy Jeanne Anne Beck, page two. 6. OSBI Reports, Interview of Cheryl McMurray, page two. 7. OSBI Reports, Interview of Teresa Walker, page two. According to the report, Walker believed it always took too long to get the inhalers to Ms. Crowell. 8. Id. at n.6. 9. Ms. Crowell was in cell 204 in section A, on the second floor. The detention center has three floors. The inmates are housed on the second floor, which is divided into a south side with sections A & B, and a north side with two sections C & D. The booking area is on the first floor. Inmate medications are kept in a locked medicine cabinet located in a medical room on the second floor, next to the nurse’s office. From the north control booth, access to all the inmate area doors and gates on the second floor are opened, closed, locked, and unlocked. 10. The employees and officers were Corporal Michael Easley, Corporal Michael Stevenson, Deputy Jeanne Beck, Deputy April Cummins, and Deputy Kenneth Albrecht. 11. The docket sheet indicates that Sheriff Beggs, in his official capacity, and the Commissioners had previously filed a motion to dismiss on August 5, 2005. The docket sheet shows that the Commissioner’s motion to dismiss federal � §1983 claims was denied on September 13, 2005. The docket sheet does not indicate a ruling on the Sheriff’s motion. 12. The docket sheet shows that on May 17, 2007, judgments were entered for all of the defendants on the issue of negligence, including Cummins and Easley. 13. For purposes of 12 O.S.2001 � 994, this order disposed of all the claims and all the parties because the docket sheet shows that Easley and Cummins were never served with summons, that an attorney never entered an appearance on their behalf, and that they never answered the petition. 14. Madoux v. City of Norman, 2008 WL 938596 (W.D. Okla. 2008). 15. Id. at n.14; see 57 O.S.2001 § 52; 19 O.S.2001 � 513; 57 O.S.2001 § 47. 16. Id. at n.14.; see Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1988). 17. Id. at n.14 18. Id. at n.14.
2010 OK 3 MARK ROGERS, TERRY O’RORKE and WILLIAM WILSON, on behalf of themselves and all others similarly situated Plaintiffs v. QUIKTRIP CORPORATION, LOVE’S TRAVEL STOPS & COUNTRY Vol. 81 — No. 3 — 1/30/2010
STORES, INC., AND 7-ELEVEN, L.L.C. Defendants No. 106,684. January 19, 2010 ON WRIT OF CERTIORARI TO THE DISTRICT COURT, POTTAWATOMIE COUNTY, DOUGLAS L. COMBS, TRIAL JUDGE, TO REVIEW A CERTIFIED INTERLOCUTORY ORDER ¶0 Plaintiffs filed a putative class action against defendants urging the latter sold gasoline containing the additive ethanol without disclosing to customers the ethanol content of the fuel. They brought suit based on breach of contract, breach of express and implied warranties and violation of the Oklahoma Consumer Protection Act, 15 O.S. § 751 et seq. The defendants filed a motion to dismiss the case. The District Court in Pottawatomie County, Douglas L. Combs, Judge, denied the motion and ruled (1) he had jurisdiction over the cause and (2) the defendants had a duty to disclose the ethanol content of gasoline. The trial judge’s order denying the defendants’ motion to dismiss was certified for immediate interlocutory review. Certiorari was granted. TRIAL COURT’S ORDER UNDER REVIEW IS AFFIRMED IN PART AND REVERSED IN PART Terrry W. West, Bradley C. West, and J. Shawn Spencer, The West Law Firm, Shawnee, Oklahoma, for the plaintiffs/respondents John J. Griffin, Jr., Crowe & Dunlevy, a Professional Corporation, Oklahoma City, Oklahoma, for defendant Love’s Travel Stops & Country Stores, Inc. Mark E. Bialick, David B. Donchin, Katherine Taylor Loy, Durbin, Larimore and Bialick, P.C., Oklahoma City, Oklahoma, for Defendant 7-Eleven L.L.C. for defendants/petitioners1 OPALA, J. ¶1 Two questions are pressed for review: (1) Did the trial judge err when he ruled that he had jurisdiction over this cause? and (2) Did the trial judge err when he ruled the defendants had a duty to disclose the presence of fuel additives in the gasoline offered for sale? We answer the first in the negative and latter in the affirmative.
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I. THE ANATOMY OF LITIGATION ¶2 In May 2008 Mark Rogers, Terry O’Rorke, and William Wilson (plaintiffs) brought a putative class action against Quiktrip Corporation, Love’s Travel Stops and Country Stores, Inc., and 7-Eleven, L.L.C., (collectively called defendants or fuel sellers) urging the latter sold gasoline containing the additive ethanol without disclosing its content in the fuel sold to customers. The plaintiffs contend that defendants’ failure to disclose the ethanol content of gasoline constitutes breach of contract, breach of express and implied warranties2 and a violation of the Oklahoma Consumer Protection Act, 15 O.S. § 751 et seq. ¶3 The defendants moved to dismiss the action asserting (1) the petition failed to state a claim upon which relief could be granted and (2) the Oklahoma Corporation Commission (Commission) has exclusive jurisdiction over the dispute. The trial judge denied this motion. He ruled (1) the trial court had jurisdiction to entertain the cause and (2) the plaintiffs’ theories of liability may be supported by the duty created by the terms of 52 O.S. § 391.3 The defendants moved to secure the trial judge’s certification of the 4 December 2008 order which denied the defendants’ motion to dismiss for immediate interlocutory review.4 They urge the issues presented affect the entirety of the merits of the controversy and an immediate appeal will advance the ultimate termination of the litigation. The trial judge certified his nonfinal ruling for appeal under the provisions of Supreme Court Rule 1.50.5 This court granted certiorari to review the certified interlocutory order.
ing’s allegations together with all reasonable inferences that may be drawn from them.10 A plaintiff is required neither to identify a specific theory of recovery nor to set out the correct remedy or relief to which he (or she) may be entitled.11 A quest for dismissal should be denied if relief is possible under any set of facts which can be established and is consistent with the allegations.12 A petition can generally be dismissed only for absence of any cognizable legal theory to support the claim or for insufficient facts under a cognizable legal theory.13 Our recapitulation of the standards that govern when a court is called upon to rule on a motion to dismiss will guide today’s review of this case. III. THE DISTRICT COURT HAS JURISDICTION OVER THIS CAUSE OF ACTION
II. STANDARD OF REVIEW
¶5 The defendants first assert the plaintiffs’ claims fall within the exclusive jurisdiction of the Corporation Commission and not of the district court. According to the defendants, the plaintiffs’ claims do not deal merely with the adjudication of private rights between individuals. They are an inherent challenge to the public-policy determinations over which the Commission has exclusive jurisdiction.14 At the bottom of this cause, assert the defendants, is whether there existed at that time an industrywide duty to disclose the ethanol content in motor fuel. They urge the plaintiffs seek legislation to be effected by litigation, in violation of the doctrine of separation of powers. The plaintiffs respond that because this dispute deals with private rights of litigants, not just public rights, the trial judge correctly determined that jurisdiction lies in the district court.15 To rule otherwise would offend the access-tocourt provision of the Oklahoma Constitution.16
¶4 When reviewing a trial court’s dismissal of an action an appellate court examines the issues de novo.6 Motions to dismiss are generally viewed with disfavor.7 The purpose of a motion to dismiss is to test the law that governs the claim in litigation rather than to examine the underlying facts of that claim.8 A motion to dismiss for failure to state a claim upon which relief may be granted will not be sustained unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief.9 When considering a defendant’s quest for dismissal the court must take as true all of the challenged plead-
¶6 That the Commission is a tribunal of limited jurisdiction is well established in Oklahoma jurisprudence.17 It possesses only such authority as is expressly or by necessary implication conferred upon it by the constitution and statutes of Oklahoma.18 If no Commission jurisdiction stands expressly conferred or necessarily implied, either by the constitution or by statute, its order would be void. The function of the Commission is to protect the rights of the body politic; private rights and obligations of private parties lie within the purview of the district court.19 The Commission, although possessing many of the powers of a court of
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record, is without the authority to entertain a suit for damages.20 ¶7 The Commission is without authority to hear and determine disputes between two or more private persons or entities in which the public interest is not involved.21 The distinction between public and private rights is not always immediately transparent. Public rights, at a minimum, must arise between the government and others: the liability of one individual to another under the law as defined is a matter of private rights.22 We have also held questions in an action concerning the relationship of private parties, their duties, rights and obligations, and the existence of liability for the breach of such duties to be matters particularly with the province of the district court.23 ¶8 The plaintiffs’ claims which stand presented here are of a private nature. They urge the defendants had both a contractual duty and a duty under the Oklahoma Consumer Protection Act to disclose the ethanol content of their fuel. These issues — the duties and obligations of the parties and the liability that exists for the breach of such duties — deal with private rights between these private parties. That the plaintiffs’ claim is a putative class action alters neither the parties’ nor the action’s classification. Moreover, the plaintiffs seek compensation for the breach of these asserted duties. The Commission has no authority to award damages. This dispute is hence beyond the Commission’s jurisdiction. It properly rests in the district court. IV. BECAUSE THE TERMS OF 17 O.S. Supp. 2003 § 620 CONTROL THIS CONTROVERSY THE DEFENDANTS HAD NO DUTY BEFORE THE TERMS OF 52 O.S. Supp.2008 § 347 BECAME EFFECTIVE TO DISCLOSE THE ETHANOL CONTENT OF THEIR MOTOR FUEL ¶9 The defendants next assert the trial judge incorrectly determined that the provisions of 52 O.S. § 39124 — whose terms provide that it is unlawful for an entity to sell any liquid fuels which deceive the purchaser concerning the nature, quality or identity of the product sold — imposed a duty on sellers to disclose the ethanol content of their fuel. They rely on 17 O.S. Supp. 2003 § 62025 whose terms specifically provide that sellers of motor fuel are not required to post information concerning the presence of fuel additives. According to the Vol. 81 — No. 3 — 1/30/2010
defendants, they were under no duty to disclose the content of fuel additives before 1 July 2008 when the terms of 52 O.S. Supp. 2008 § 34726 became effective. In absence of any duty to provide this information, the defendants contend they cannot be held liable for the plaintiffs’ asserted claims against them for breach of contract, breach of express and implied warranties and for violation of the Consumer Protection Act, 15 O.S. § 751 et seq. ¶10 The defendants urge the terms of § 620 are plain and unambiguous. Its provisions preempt any common-law duty or duty under the Consumer Protection Act by providing them in this cause with a safe harbor from liability.27 Further, even if the § 391 and§ 620 terms conflict, application of rules of statutory construction support their position that the latter terms control here. The defendants also urge that because their actions were consistent with the provision of § 620 their due process rights would be violated if the plaintiffs’ action is allowed to be pressed further.28 ¶11 The fundamental rule of statutory construction is to ascertain and give effect to legislative intent.29 That intent is first divined from the language of a statute.30 If a statute is plain and unambiguous, it will not be subjected to judicial construction but will receive the interpretation and effect its language dictates.31 Only where the intent cannot be ascertained from a statute’s text, as when ambiguity or conflict with other statutes is shown to exist, may rules of statutory construction be invoked.32 When possible, different provisions must be construed together to effect a harmonious whole and give intelligent effect to each.33 An absurd result cannot be presumed to have been intended by the drafters.34 ¶12 A review of the enactments called to our attention reveals no need to resort to canons of construction. There exists no irreconcilable conflict between the § 391 text and the § 620 provisions. The latter’s terms explicitly provide that retail facilities shall not be required to post information concerning fuel additives on motor fuel dispensers or elsewhere on the facility premises. These terms make clear that a seller’s act of not posting the presence of fuel additives is not to be considered to lie within the ambit of the deceptive practices under § 391. By this result we harmonize and give effect to both statutes. To read the two statutes otherwise would reach an illogical result — that the legislature specifically condoned a decep-
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tive practice upon its passage of § 620. At the time plaintiffs’ claims were brought the defendants had no duty to post information that showed the ethanol content in gasoline. The § 391 terms simply do not control this dispute.
supported a duty by defendants to disclose this information, the § 620 terms clearly control over any general language contained in the Consumer Protection Act. The defendants’ actions did not hence violate this Act.40
¶13 Even if there existed an irreconcilable conflict between the terms of § 391 and those of § 620, application of long-standing canons of statutory construction reveal the latter provision would control here. Two well-settled rules of construction are instructive here. First, where a matter is addressed by two statutes — one specific and the other general — the specific statute, which clearly includes the matter in controversy and prescribes a different rule, governs over the general statute.35 Second, more recently-enacted legislation controls over earlier provisions.36 The legislature first enacted § 391 in 1933 to deal with deceptive sales of petroleum products. The terms of §620, which deal specifically with the required posting of information concerning fuel additives by retail sellers of motor fuel, were enacted in 2003. Giving effect to the most recent expression of the legislative will and allowing the specific statute to control over the more general one compels us to hold that § 620 should govern this controversy.
V. SUMMARY
¶14 We note that the terms of 52 O.S. Supp. 2008 § 34737 — the legislature’s most recent enactment that deals with the sale and labeling of motor fuel containing ethanol — provides further and equally potent support for our conclusion. Its terms, which became effective 1 July 2008, require a motor-fuel seller whose fuel contains a mixture of at least 1% ethanol or methanol to display this information on the pump. Had the legislature intended that the older § 391 terms require sellers to post information concerning fuel additives the latter expression of legislative will would have been utterly superfluous. ¶15 The terms of § 620 control this controversy. Prior to 1 July 2008 they clearly relieved the defendants of any duty to disclose the ethanol content of the fuel. The plaintiffs’ claims for breach of contract and breach of express and implied warranties38 must hence fail. ¶16 Lastly, the plaintiffs’ claim the defendants’ failure to disclose the ethanol content in their fuel was a deceptive and unfair trade practice in violation of the Oklahoma Consumer Protection Act, 15 O.S. § 751 et seq.39 Although the trial judge ruled the § 391 terms 202
¶17 The trial judge correctly ruled that jurisdiction over today’s cause lay in the district court. The asserted plaintiffs’ claims — for breach of contract, breach of express and implied warranties and for violation of the Oklahoma Consumer Protection Act, 15 O.S. § 751 et seq. — were bottomed on defendants’ alleged duty to disclose the ethanol content of the fuel sold to plaintiffs. A review of the pertinent legislation reveals the terms of 17 O.S. Supp. 2003 § 620 must clearly control here. They provide that the defendants, until 1 July 2008 when the terms of 52 O.S. Supp. 2008 § 347 became effective, were under no duty to disclose the ethanol content of their fuel. Because at the time the plaintiffs’ filed their claim the law imposed no duty on the defendants to disclose the ethanol content of gasoline, they cannot be held liable for breach of contract, breach of express and implied warranties or for violation of the Oklahoma Consumer Protection Act, 15 O.S. § 751 et seq. The plaintiffs’ petition clearly failed to state a claim upon which relief may be granted. ¶18 The trial judge’s ruling under review is affirmed in part and reversed in part; the cause is remanded for further proceedings to be consistent with this pronouncement. ¶19 EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, KAUGER, WINCHESTER, COLBERT and REIF, JJ., CONCUR. ¶20 WATT, J., NOT PARTICIPATING. 1. Identified herein are only those counsel for the parties whose names appear on the parties’ certiorari briefs for immediate interlocutory review. 2. Plaintiffs’ cite to 12A O.S. §§ 2-313 and 2-314 of the Uniform Commercial Code. 3. The terms of 52 O.S. § 391 provide: It shall be unlawful for a person, firm or corporation, to store, sell, expose for sale or offer for sale, any liquid fuels, lubricating oils, greases or other similar products in any manner whatsoever, which deceives, tends to deceive, or has the effect of deceiving the purchaser as to the nature, quality or identity of the product so sold or offered for sale. 4. The trial judge’s order certifying for immediate interlocutory appeal the order denying the motion to dismiss notes the plaintiffs joined the defendants in the request for certification of the order. The terms of 12 O.S. 2001 § 952(b)(3) provide in pertinent part: (b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof: ***
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3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; provided, however, that the Supreme Court, in its discretion, may refuse to hear the appeal.*** 5. The terms of Supreme Court Rule 1.50 provide: Any interlocutory order not appealable by right under the statutes, which order affects a substantial part of the merits of the controversy, may be brought for review to this Court in compliance with the rules in this Part when the trial judge or the judge’s successor has certified that an immediate appeal from that order may materially advance the ultimate termination of the litigation. In the exercise of its statutory discretion this Court may refuse to review a certified interlocutory order. 12 O.S.Supp.1991 § 952, Subdiv. (b)(3). *** 6. Lockhart v. Loosen, 1997 OK 103, ¶4, 943 P.2d 1074, 1077; Washington v. State ex rel. Dept. of Corrections, 1996 OK 139, ¶7, 915 P.2d 359, 361; Indiana Nat. Bank v. State Dept. of Human Services, 1994 OK 98, ¶2, 880 P.2d 371, 375. 7. Lockhart, supra note 6, at ¶5, at 1078; Indiana Nat. Bank, supra note 6, at ¶4, at 375. 8. Zaharias v. Gammill, 1992 OK 149, ¶6, 844 P.2d 137, 138. 9. A-Plus Janitorial & Carpet Cleaning v. The Employers’ Workers’ Compensation Ass’n, 1997 OK 37, ¶9, 936 P.2d 916, 922; National Diversified Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, ¶9, 946 P.2d 662, 665; Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶3, 913 P.2d 1318, 1320; Washington, supra note 6, at ¶7, at 361. The terms of 12 O.S.2001 § 2012(B) provide in pertinent part: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: *** 6. Failure to state a claim upon which relief can be granted; *** “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Groce v. Foster, 1994 OK 88, ¶12, 880 P.2d 902, 906; Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, ¶7, 861 P.2d 295, 298. 10. Great Plains Federal Sav. and Loan Ass’n v. Dabney, 1993 OK 4, ¶2 n.3, 846 P.2d 1088, 1090. 11. Great Plains, supra note 10, at ¶3, at 1096 (Opala, J., concurring). 12. Lockhart v. Loosen, supra note 6, at ¶4, at 1077; Indiana Nat. Bank, supra note 6, at ¶4, at 376. 13. Lockhart v. Loosen, supra note 6, at ¶5, at 1078; Indiana Nat. Bank, supra note 6, at ¶4, at 375. 14. In their supplemental brief the defendants cite the following statutes and administrative rules dealing with fuel in support of their claim that the Commission has exclusive jurisdiction over this dispute: 83 O.S. §§ 111, 112 (directing the Commission to promulgate standards, rules and regulations concerning measuring devices for petroleum products); OAC § 165: 15-7-2 (deals with the characteristics of gasoline and labeling of measuring devices); 2 O.S. §§ 11-22(E), (authorizing the Commission to promulgate rules to govern the sale of ethanol and gasoline mixtures); 52 O.S. § 325 (conferring jurisdiction on the Commission to prescribe rules and specifications for safety and quality of fuels and burning oils, including gasoline); OAC § 165:15-1-1 (purpose of this chapter is to provide a comprehensive regulatory program governing the sale and use of gasoline and other fuels); and OAC |§ 165:15-9-3 (providing that the alcohol content of motor fuel sold at airports for fueling aircraft must be labeled but disclosure of fuel additives for other retail sellers to be permissive). For the terms of OAC § 165:15-9-3 see infra note 25. The defendants assert the plaintiffs’ claims are within the exclusive jurisdiction of the Commission because they implicate public interests regarding the marketing of gasoline in Oklahoma rather than purely private rights. (trial judge’s language in certifying the order to dismiss for immediate interlocutory appeal, p.2) 15. The plaintiffs cite to Art. 9, § 18, Okla. Const.; Chicago, R.I. & P. Ry. v. State, 1932 OK 467, 12 P.2d 494; and Burmah Oil & Gas Co. v. Corporation Commission, 1975 OK 138, 541 P.2d 494, for support of their position that the Commission is without authority to hear and determine controversies between private litigants and purely private matters. The terms of Art. 9, §18, Okla. Const., provide: The Commission shall have the power and authority and be charged with the duty of supervising, regulating and controlling
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all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; *** 16. The pertinent terms of Art. 2, § 6, Okla. Const., provide: The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice. Because of our conclusion, we need not discuss this assertion. The plaintiffs’ supplemental brief addresses solely the issue of jurisdiction. They present no argument in support of the second issue on certiorari — defendants’ alleged duty to disclose the ethanol content of gasoline. 17. Although the Commission has the authority of a court of record, it has limited jurisdiction. Tenneco Oil Co. v. El Paso Natural Gas Co., 1984 OK 52, ¶ 4, n.1, 687 P.2d 1049, 1050, n.1. 18. Tenneco, supra note 17, at ¶ 4, at 1050. 19. Tenneco, supra note 17, at ¶ 18, at 1052 (holding the district court has jurisdiction over a lawsuit between interested parties to a forcedpooling order who contracted between themselves concerning the interests created by the contract and where no public issue within the jurisdiction of the Commission was changed or challenged ); Samson Resources Co. v. Corporation Com’n, 1985 OK 31, ¶ 15, 702 P.2d 19, 22 (holding the Commission did not have jurisdiction under the “correlative-rights” doctrine to resolve a dispute between private parties concerning the appointment of a new unit operator); The Commission’s jurisdiction is limited to those controversies where the rights of a public utility and patrons are involved. It has no power or jurisdiction to adjudicate differences between private litigants or purely private matters between a utility and a citizen. Smith v. Corporation Com’n of Oklahoma, 1924 OK 386, ¶ 10, 225 P. 708, 709, 101 Okl. 254; Chicago, R.I. & P. Ry. v. State, supra note 15, at ¶ 15, at 494. 20. Samson Resources Co., supra note 19, at ¶ 18, at 23. 21. Southern Union Production Co. v Corporation Com’n, 1970 OK 16, ¶ 14, 465 P.2d 454, 558 (citing Gibson v. Elmore City Telephone Co., 1966 OK 30, ¶ 9, 411 P.2d 551, 553-54). 22. Tenneco, supra note 17, at ¶ 17, at 1053 (quoting Northern Pipeline Company v. Marathon Pipeline, 458 U.S. 50, 70, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982)). 23. Samson Resources Co., supra note 19, at ¶ 18, at 23. 24. For the text of 52 O.S. § 391 see supra note 3. 25. The terms of 17 O.S. Supp. 2003 § 620 provide: Except as otherwise provided in this section, retail facilities that sell motor fuel shall not be required to post information regarding fuel additives on the motor fuel dispenser or anywhere else on the premises of the facilities. Motor fuel sold at regional or smaller airports in the state for fueling aircraft shall be labeled with the percent of alcohol, if any, in the fuel. The Corporation Commission shall promulgate rules consistent with the provisions of this section. (emphasis supplied) The terms of OAC 165:15-7-2(d) have defined ethanol as a fuel additive. The pertinent terms provide: (d) Additives. Ethanol, MtBE or TAME added to gasoline as a component must not exceed concentrations permitted by the United States Environmental Protection Agency. *** The defendants further assert that the terms of OAC 165:15-9-3 give further support to their argument. The pertinent text provides: Motor fuel sold at airports for fueling aircraft must be labeled with the percent of alcohol in the fuel, if any. At all other retail facilities the retailer may post on the dispenser or elsewhere on the premises any information regarding the fuel’s additives which the retailer deems appropriate to inform customers. (emphasis supplied) This regulatory enactment, as amended, was effective 7 January 2006. 26. The plaintiffs filed their action in the district court on 27 May 2008. The terms of 52 O.S. Supp. 2008 § 347, effective 1 July 2008, require the disclosure of ethanol in motor fuels. The pertinent terms provide: A. No person shall sell or offer for sale motor fuel from a motor fuel pump supplied by a storage tank into which motor fuel that contains a mixture of at least one percent (1%) by volume of ethanol or methanol has been delivered within the sixty-day period preceding the date of sale or offer of sale unless the person prominently displays on the pump from which the mixture is sold a label that complies with subsection B of this section. B. A label as required in subsection A of this section shall: 1. Be displayed on each face of the motor fuel pump on which the price of the motor fuel mixture sold from the pump is displayed;
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2. State Contains Ethanol or Contains Methanol, as applicable; *** 27. The defendants rely on BMW of North America, Inc. v. Gore, 517 U.S. 559, 579, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). There some states had statutes which did not require an automobile seller to disclose minor repairs to a vehicle. The court noted that in the absence of a state-court determination to the contrary, a corporate executive could reasonably interpret the disclosure requirements as establishing safe harbors against lawsuits over minor repairs. 28. Elementary notions of fairness enshrined in constitutional jurisprudence dictate that one receive fair notice not solely of the conduct that will subject him to punishment but also of the severity of the penalty that a State may impose. BMW, supra note 27, at 574; McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 11, 979 P.2d 252, 256. Because of today’s holding, we need not address this argument. 29. Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 213, 219; Cooper v. State ex rel Dep’t. of Public Safety, 1996 OK 49,¶ 10, 917 P.2d 466, 468. 30. Yocum, supra note 29, at ¶ 9, at 219; Nealis v. Baird, 1999 OK 98, ¶ 55, 996 P.2d 438, 460; TXO Production Corp. v. Okla. Corp. Com’n, 1992 OK 39, ¶ 7, 829 P.2d 964, 969. 31. Yocum, supra note 29, at ¶ 9, at 219; Ross v. Peters, 1993 OK 8, ¶ 9, n. 17, 846 P.2d 1107, 1119, n. 17; TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15, 20. 32. Yocum, surpa note 29, at ¶ 9, at 219; Cox v. Dawson, 1996 OK 11, ¶ 6, 911 P.2d 272, 276. 33. Villines v. Szcerpanski, 2005 OK 63, ¶ 9, 122 P.3d 466, 471; McNeill v. City of Tulsa, 1998 OK 2, ¶ 11, 953 P.2d 329, 332. 34. Ashikian v. State ex rel. Oklahoma Horse Racing Com’n, 2008 OK 64, ¶ 15, 188 P.3d 148, 156; Oklahoma Alcoholic Beverage Control Bd. v. Burris, 1980 OK 58, ¶ 13, 626 P.2d 1316, 1319. 35. State ex rel. Trimble v. City of Moore, 1991 OK 97, ¶ , 818 P.2d 889, 899 (citing Southwestern Bell Tel. Co. v. Oklahoma County, Okl., 1980 OK 97, ¶ 12, 618 P.2d 915, 919; Ind. Sch. Dist. No. 1 v. Bd of City. Comm’rs., Okl., 1983 OK 123, ¶ 10, 674 P.2d 547, 550). 36. The text of 75 O.S.1961 § 22 provides: If the provisions of any code, title, chapter or article conflict with or contravene the provisions of any former code, title, chapter or article, the provisions of the latter code, title, chapter or article must prevail as to all matter and questions arising thereunder out of the same subject matter. Poafpybitty v. Skelly Oil Co., 1964 OK 162 ¶ 17, 394 P.2d 515, 515; Dunlap v. Board of Com’rs of Carter County et al., 1922 OK, 120, ¶ 13, 205 P. 1100, 1103, 85 Okl. 295. 37. For the pertinent text of § 347 see supra note 26. The plaintiffs’ urge the enactment of § 347 codifies the defendants’ duty to disclose the ethanol content of their motor fuel. According to the plaintiffs, the legislation requires sellers to disclose what plaintiffs had an existing right to know. (citing to the remarks of the legislation’s senate author in plaintiffs’ exhibit 1) This argument was not passed on directly by the trial judge. Because it is not reurged by plaintiffs on certiorari, we must view it as abandoned. 38. Because of our ruling we need not address the defendants’ assertion that the plaintiffs failed to plead the proper notice of the alleged breach of warranty. 39. The terms of 15 O.S. § 752(13) and (14) provide: As used in the Oklahoma Consumer Protection Act: *** (13) “Deceptive trade practice” means misrepresentation, omission or other practice that has deceived or could reasonably be expected to deceive or mislead a person to the detriment of that person. *** (14)”Unfair trade practice” means any practice which offends established public policy or if the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers; *** The plaintiffs urge defendants’ acts violated the terms of 15 O.S. § 753(5) whose terms declare it to be unlawful when a person in the course of business “[m]akes a false representation, knowingly or with reason to know, as to the characteristics, ingredients, uses, benefits, alterations, or quantities of the subject of a consumer transaction or a false representation as to the sponsorship, approval, status, affiliation or connection of a person therewith;” *** 40. The defendants also urged the terms of 15 O.S. §754 exempt them from liability under the Consumer Protection Act. Its terms apply to “actions or “transactions” that are regulated under laws administered by any regulatory body acting pursuant to statutory authority of the state. The trial judge did not rule on this theory and the defendants did not re-urge it here.
The Honorable Neil M. Gorsuch U.S. Court of Appeals for the Tenth Circuit
WEDNESDAY, FEBRUARY 10, 2010 5 p.m. Public Lecture
Homsey Family Moot Courtroom Sarkeys Law Center N.W. 23rd and Kentucky For more information call (405) 208-5440 or visit www.okcu.edu/law McAfee & Taft
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Court of Criminal Appeals Opinions ORDER FOR MANDATE TO ISSUE Now, on the 13th day of January, 2010, the Clerk of this Court is hereby ordered to issue the mandate in the following styled and numbered causes: Case No. PC-2009-894 Case Description Bell v. State of Oklahoma WITNESS MY HAND AND THE SEAL OF THIS COURT, THIS 13th DAY OF January, 2010. /s/ Charles A. Johnson Presiding Judge
III. multiple instances of prosecutorial misconduct served to deny appellant the right to a fair trial in violation of the fourteenth amendment to the united states constitution. IV. improper rebuttal evidence was presented to the jury, which violated provisions of oklahoma law as well as the fourteenth amendment to the united states constitution.
ATTEST: Michael S. Richie Clerk 2010 OK CR 1 JEFFERY ALFONZO OWENS, Appellant, v. STATE OF OKLAHOMA, Appellee. Case No. F-2008-530. January 8, 2010 SUMMARY OPINION CHAPEL, JUDGE: ¶1 Jeffery Alfonzo Owens was tried by jury and convicted, in Tulsa County District Court Case No. CF-2007-3564, for the crime of first degree robbery in violation of 21 O.S.2001, § 797. First degree robbery is subject to the 85% Rule pursuant to 21 O.S.Supp.2003, § 13.1. In accordance with the jury’s recommendation, the Honorable Clancy C. Smith, District Judge, sentenced Owens to twenty seven (27) years imprisonment. Owens appeals from this conviction and sentence, raising six propositions for review. I. the evidence was insufficient to support the jury’s verdict, and jurors were not instructed as to the lesser-included offense of second degree robbery. This court must reverse appellant’s conviction for first degree robbery. II. It was reversible error for the district court to admit evidence 208
of a prior car theft committed by appellant to demonstrate a common scheme or plan. the evidence was not relevant, it was prejudicial, and served to deny appellant the right to a fair trial pursuant to the fourteenth amendment to the united states constitution.
V. the denial of appellant’s request for an instruction defining reasonable doubt denied him the right to due process and a fair trial as guaranteed by the fourteenth amendment to the united states constitution. VI. the combined error during appellant’s trial served to deny him the right to a fair trial guaranteed by the fourteenth amendement of the united states constitution. ¶2 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that relief is required in response to Propositions One, Two and Three. Owen’s conviction will be reversed and this matter remanded for proceedings consistent with the decision herein. ¶3 On Saturday night, June 9, 2007, as Lewis Moses entered a liquor store to purchase his Pepsi and half-pint of vodka, he observed a “strange looking” man. Upon exiting the store, Moses was approached by the man and after a brief conversation, Moses agreed to give the man a ride. The man directed Moses through
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the city, and ultimately led him to 2816 North Boston Place, the last house on a dead end street, bordering a large field. There, rather than exiting the car, the man demanded the keys to Moses’ car. Moses refused and the man hit Moses in the face two times. The man then exited the car, pulled Moses out, threw him onto the driveway, stole approximately ninety dollars in cash as well as the car keys, and drove off. Moses testified that he had to roll out of the way to avoid being hit by the car.1 ¶4 Moses picked himself up and walked down the street, seeking assistance. Delmar Willis, a resident in the neighborhood where Moses was assaulted, found Moses and helped him reconnect with family. Moses testified that after the assault he felt “terrible,” but Moses did not seek medical attention until Monday. Pictures taken by his family immediately after the assault show bruising to his face, arms, legs and back. The doctor admitted Moses to the hospital for some tests, though it is unclear for what reason, or how long Moses remained at the hospital.2 ¶5 On the night of the assault Delmar Willis told Moses’ daughter, Dana Moses, that Jeffrey Owens may have been the perpetrator because he lived in the neighborhood and “he had a record of robbing people and stealing people’s cars.” Dana Moses passed the information on to the lead investigator in the case, Detective Bob Little. After Moses made a positive identification of Owens in a photo lineup, Owens was arrested at his Mother’s home. ¶6 Four members of Owens’ family attended court and testified that they were with Owens for various parts of the evening on June 9, 2007. Each witness stated that they recalled the evening because it was the night that Alma, Owens’ niece, introduced her infant child Sebring. Owens’ Mom made wienies and beans, and everyone came over and spent time in the house, enjoying the baby and the company of family. The prosecutor was able to expose weaknesses and inconsistencies in the stories of these non-professional witnesses. ¶7 Owens was charged with first degree robbery. The trial court only instructed the jury on first degree robbery by serious bodily injury.3 There was no request by defense counsel or the State for any modification or alternative instruction. On appeal, Owens argues both that there was insufficient evidence for the jury to convict him of robbery in the first degree by serious Vol. 81 — No. 3 — 1/30/2010
bodily injury, and also that the trial court erred by failing to instruct the jury on robbery in the second degree, by means of force or fear. Our standard for review of an insufficiency claim is whether, “[w]hen viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.”4 When reviewing jury instructions, we will examine all of the evidence adduced at trial. “[T]he trial court must instruct on any lesser included offense warranted by the evidence.”5 Because Owens did not object to the jury instructions, we review the instructions for plain error.6 ¶8 While serious bodily injury is not specifically defined by statute or jury instruction in the robbery context,7 this Court considers how the Legislature has defined serious bodily injury elsewhere in the code. The term “serious bodily injury” can currently be found in two statutes: 10A O.S.Supp.2009, § 1-1-105 and 27A O.S.2001, § 2-6-202. Both statutes define “serious bodily injury” as: a. a substantial risk of death, b. extreme physical pain, c. protracted disfigurement, d. a loss or impairment of the function of a body member, organ, or mental faculty, e. an injury to an internal or external organ or the body, f. a bone fracture, g. sexual abuse or sexual exploitation, h. chronic abuse including, but not limited to, physical, emotional, or sexual abuse, or sexual exploitation which is repeated or continuing, i. torture that includes, but is not limited to, inflicting, participating in or assisting in inflicting intense physical or emotional pain upon a child repeatedly over a period of time for the purpose of coercing or terrorizing a child or for the purpose of satisfying the craven, cruel, or prurient desires of the perpetrator or another person, or j. any other similar aggravated circumstance. Our statutes dictate that “[w]henever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same
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word or phrase wherever it occurs, except where a contrary intention plainly appears.”8 Additionally, we will consider how we have historically defined the term. This Court has discussed serious bodily injury in the context of Aggravated Assault: serious bodily injury is “grave and not trivial; such injury as gives rise to apprehension of danger to life, health or limb.”9 Bruising, swelling, and even a few cracked ribs or stitches has been found insufficient for the felony count of assault with serious bodily injury.10 ¶9 Whatever standard one employs, it cannot be said that the State established serious bodily injury. Here, Moses was punched twice in the face, pulled from his car and thrown to the pavement. Moses rolled down the pavement to avoid being hit by his car as Owens drove away, suffering abrasions to his back, arms, legs and face. He walked away from the incident, did not seek medical treatment that weekend, needed no stitches and suffered neither broken bones nor permanent injury. When asked how he felt after the robbery, Moses testified: MOSES: Terrible.... If you got beat up, you’d feel terrible too. STATE: Did you have some injuries, Mr. Moses? MOSES: Yes, sir. STATE: Do you recall what those injuries were? MOSES: I had some facial injuries, some body injuries where he tried to run me over. This Court has concluded that more serious injuries fail to establish serious bodily injury. The State has not met its burden in this case. ¶10 The crux of this error, however, is found in the failure of the trial court to supply the jury with the tools to render a lawful verdict. While there was insufficient evidence adduced at trial to support a verdict of robbery with serious bodily injury, there was ample evidence to convict Owens of robbery. It is for a jury to decide whether that robbery is by threat of serious bodily injury or by force or fear. Notably, the charging document lists the offense charged as robbery in the first degree and details the elements, by force or fear, of robbery in the second degree.11 The trial court had the authority and obligation to provide these instructions to the jury. 210
¶11 This Court will not look backwards and infer a waiver of proper instructions, supported by the evidence, from a silent record.12 The State’s argument that Owens waived his right to request an instruction on second degree robbery because he raised an alibi defense is not persuasive. This type of formalism defeats the ends of justice and ignores the duty of the court to charge the jury based upon the evidence presented at trial.13 Because of the sentencing implications of a conviction of second degree rather than first degree robbery,14 we cannot find the instructional error here harmless. ¶12 We find error also in the trial court’s decision to admit evidence of a prior robbery, committed by Owens in 2003, under the common scheme and plan exception to the rule prohibiting the admission of other crimes evidence.15 This Court reviews the decision of the trial court regarding the admissibility of evidence for an abuse of discretion.16 “Any doubt as to the admissibility of evidence of other offenses to show a common scheme, plan or unlawful intent should be resolved in favor of the accused and such evidence excluded.”17 ¶13 The facts of the prior robbery are as follows: In the evening of September 17, 2003 Owens approached James Maddux in an adult bookstore and asked for a jump start of the battery in his car. Maddux agreed to drive Owens to his car and help. After a twenty minute ride, Owens signaled for Maddux to stop. Maddux exited his vehicle to initiate the jump, and Owens hit Maddux on the head, stole his wallet, and got in the driver seat. Maddux recalled Owens repeatedly telling Maddux to reenter the car, but Maddux refused. ¶14 The State defends the trial court’s decision to allow evidence of the prior robbery under the common plan and scheme exception, arguing that the prior robbery is probative evidence of Owen’s identity because the two crimes are factually similar. Despite this Court’s explanation in Williams v. State, the State here continues to confuse and conflate the identity exception (requiring unique similarities between crimes amounting to a signature) and the common plan and scheme exception (requiring a relatedness between the crimes such that the other crime appears to have paved the way for the current offense or the second offense is dependent on the first).18 The critical distinction is that the common scheme or plan exception does not apply to crimes that are independent of each other; it is necessary
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that “the commission of one crime facilitated another.”19 ¶15 The State has not established facts sufficient to admit the prior robbery under the common scheme or plan exception. Indeed, there is not a scintilla of evidence on the record that the current offense was dependent on or facilitated by the first. Similar, but independent crimes are not admissible.20 We find that the 2003 robbery is an independent crime, just as the multiple drug sales made by the defendant in Luna v. State, to one informant, were independent crimes in a prosecution for dealing to that same informant.21 Here there were two robberies associated with carjacking, four years apart, different victims, different locations of origin and completion, and different stories used by the perpetrator to effectuate the duplicity. ¶16 This Court has recognized that “[t]he commission of separate offenses characterized by a highly peculiar method of operation will suffice to show a common scheme.”22 This “highly peculiar method” is what the Court recognized in Williams as the signature crime going to the identity exception. The State has not adduced evidence supporting this exception either. Though there is a similarity between the current offense and Owen’s prior conviction, there is no unique element in either crime that might be deemed a signature. Using a ruse and/or an appeal for help is one of several garden type varieties of carjacking,23 a common enough crime in Oklahoma to earn a legislative response in the form of a presumption that defensive action in a carjacking situation is lawful.24 A perpetrator may initiate a carjacking by force or duplicity. Neither creates a signature. The 2003 robbery is simply too remote and clearly independent of the current crime. Because the 2003 robbery satisfies no exception to the rule excluding other crime evidence, it was error to introduce this evidence at trial. ¶17 In Proposition Three Owens argues that three instances of prosecutorial misconduct denied him a fair trial. First Owens argues that it was improper for the prosecutor to assert, during his first stage closing argument: “I’m not in the business of prosecuting innocent people.” Because no objection to the remarks was made at trial, this Court will review Owen’s claim for plain error.25 Though it is improper for a prosecutor to express his personal convictions about a defendant’s guilt,26 the prosecutor was within the realm of appropriate argument in this case, responding speVol. 81 — No. 3 — 1/30/2010
cifically to Owen’s allegations that the State initiated the prosecution based upon hunch and suspicion and conducted the investigation in a closed minded, result oriented fashion. ¶18 Owens also complains that the prosecutor conducted improper questioning of his alibi witnesses, implying that if the witnesses had contacted the authorities sooner, the outcome of the case might have been different. On crossexamination, the prosecutor questioned each alibi witness extensively about why the witness did not come forward earlier, and why the witness did not go to the police or the press. The questions went to the credibility of the alibi witnesses and were reasonable.27 Counsel’s comparison of this case to Dupree v. State,28 is unavailing. There the prosecutor commented on the failure of defendant’s common-law wife to testify at the preliminary hearing. Because two eyewitnesses testified against Dupree at the preliminary hearing, and because the State only had a prima facie burden, the wife’s testimony was superfluous at that stage and any argument otherwise was improper. Here, however, especially with inconsistent witness testimony, the timing of the alibi witness statements was relevant. Witness resistance to communicating with the State Investigator is also a fact from which a jury may reasonably draw inferences. ¶19 Finally, Owens argues that the prosecutor accused the defense witnesses of lying, while bolstering the testimony of his own witnesses. Specifically, the prosecutor argued that the alibi witnesses were lying when they testified: I don’t know if Ms. Ball and I were thinking on the same wave length this morning or something, but I myself pulled off the definition of manufacture. To invent fictitiously, fabricate, concoct. That’s what you saw yesterday afternoon. Defense counsel’s objection to the prosecutor’s statements was overruled. The prosecutor also bolstered the statements of his own witness, Moses, stating that he “testified to the best of his ability, and he testified truthfully.” These statements were improper, exceeding the bounds of appropriate argument by attacking and bolstering the character and credibility of witnesses.29 However, “[t]his Court looks at the entire record to determine whether the cumulative effect of improper comments by the prosecutor prejudiced an appellant, thereby constituting plain error.”30 Though the remarks of the prosecutor were not such that would prejudice
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the verdict considering the record as a whole, they were improper and should not be repeated in a new trial. ¶20 In Proposition Four Owens argues that extrinsic evidence was improperly introduced to impeach the credibility of a defense witness, Jamie Jamison. Jamison testified that Owens worked for Jamieson prior to Owens’ arrest, and that Owens called Jamison on the morning of the robbery. On cross-examination Jamison stated that he spoke to Owens while Owens was in jail, but Jamison denied that Owens asked Jamison to testify on Owens’ behalf. Jamison denied promising that he would say whatever was needed to get Owens back to work. During rebuttal, over defense objection, the prosecution played a recording of a call from the incarcerated Owens to Jamison wherein the following conversation occurred: Owens: I got that beat. I got arrested July 15th, 2007, some robbery I committed, supposed to have committed on June the 9th, but I got that beat. My lawyer might call you to verify that you picked me up from work and took me home to my mother’s. Mr. Jamison [responded] [W]hatever day it is, I’ll say I did it, even if I didn’t. ¶21 Owens argued that the extrinsic evidence of a specific act was not relevant to attack the credibility of Jamison. This is true.31 The evidence, however, goes to establish the bias of Jamison, who was willing to testify to get his employee back to work. “Recognizing that the principles surrounding the introduction of bias evidence derive from the right of confrontation . . . this Court has construed this right liberally.”32 Where relevant, and more probative than prejudicial, extrinsic evidence of specific acts of conduct is permitted to show bias of a witness.33 Allowing this evidence was not an abuse of discretion.34 This proposition should be denied. ¶22 In Proposition Five Owens challenges the trial court’s refusal to instruct on the meaning of “reasonable doubt.” This Court has repeatedly rejected such claims, and Owens presents no basis to re-examine the issue here.35 Proposition Six, claiming cumulative error, is moot. DECISION ¶23 The Judgment and Sentence of the District Court is REVERSED and the case REMANDED for a new trial. Pursuant to Rule 212
3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision. APPEARANCES AT TRIAL Julie Ann Ball, Assistant Public Defender, 423 S. Boulder, Suite 300, Tulsa, Oklahoma 74119, Attorney for Defendant. Jake Cain, Assistant District Attorney, 500 South Denver, Tulsa, Oklahoma 74103, Attorney for the State. Appearances On Appeal Stuart W. Southerland, Assistant Public Defender, 423 S. Boulder, Suite 300, Tulsa, Oklahoma 74103, Attorney for Appellant. W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer Blakeney Welch, Assistant Attorney General, 313 NE 21st Street, Oklahoma City, Oklahoma 73105, Attorneys for the State. Opinion By: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Part/Dissent in Part; Lewis, J., Concur in Part/Dissent in Part 1. Moses’ car was abandoned on a city street in another neighborhood, and found by police later that night. 2. Moses was dealing with a number of other health issues including liver and heart problems and failing eyesight. 3. 21 O.S.2001, § 797(1). 4. Johnson v. State, 2004 OK CR 23, ¶ 10, 93 P.3d 41, 44-45 (quotations omitted). 5. Jones v. State, 2006 OK CR 17, ¶ 6, and n.3, 134 P.3d 150, 154, and n.3 (citing Shrum v. State, 1999 OK CR 41, ¶¶ 5-6, 991 P.2d 1032, 1036 (lesser included instructions should be given if supported by any evidence)). 6. Jones, 2006 OK CR 17, ¶ 6, 134 P.3d at 154. 7. Serious bodily injury serves as one basis to distinguish first from second degree robbery. Prior to 2001, any robbery during which force was employed was a robbery of the first degree. The statute was amended in 2001 to incorporate the distinction between a robbery using or threatening serious bodily injury and a robbery using any other force. Owens complains that the lack of clear definition for serious bodily injury results in unfair results. Owens submits an APPLICATION FOR ORAL ARGUMENT ON THE DEFINITION OF SERIOUS BODILY INJURY IN THE CONTEXT OF ROBBERY IN THE FIRST DEGREE, AND RELATED JURY INSTRUCTIONS pursuant to Rule 3.8, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2009). This application is DENIED. In Walker v. State, F-20081116, we referred to the Oklahoma Uniform Jury Instruction Committee (Criminal) the question of whether the definition of “fear of immediate injury” should remain in OUJI-CR (2d) 1-146, along with the question of the need for a definition of “serious bodily harm”. 8. 25 O.S.2001, § 2. 9. Minnix v. State, 1955 OK CR 37, ¶¶ 14-25, 282 P.2d 772, 776-777. In 1957 the aggravated assault statute was amended to reflect “great” rather than “serious” bodily injury, 21 O.S.Supp.1957, § 64, defining, for the purpose of aggravated assault, “great bodily injury” as: “bone fracture, protracted and obvious disfigurement, protracted loss or impairment of the function of a bodily party, organ or mental faculty, or substantial risk of death.” Great bodily injury was seen to be a lower standard than serious bodily injury. Minnix at ¶¶ 27-28, 282 P.2d at 777. 10. Minnix at ¶¶ 12, 29, 282 P.2d at 775, 777 (finding that victim who suffered a beating with fists over the face and body resulting in
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the splitting of upper and lower lips that necessitated three layers of stitches in the lips to avoid scarring was not serious bodily injury). 11. The factual language in the charging document was suggestive of second degree robbery: “[O]n or about 6/9/2007, …[Jeffrey Owens] did commit the crime of Robbery First Degree, a felony, by … rob[bing] one LEWIS MOSES, by wrongfully taking away certain money …. belonging to LEWIS MOSES …without his consent and against his will, said robbery being accomplished by said defendant by means of force and/or fear used against the said Lewis Moses by then and there threatening him and then and there wrongfully taking away the money and personal property aforesaid.” (emphasis added). 12. Ballard v. State, 2001 OK CR 20, ¶ 5, 31 P.3d 390, 391. 13. Shrum, 1999 OK CR 41, ¶¶ 5-6, 991 P.2d at 1036. 14. First degree robbery carries a penalty of not less than ten years and is an 85% crime. Second degree robbery carries a penalty not exceeding ten years and is not an 85% crime. See 21 O.S.2001, § 798 (first degree robbery); 21 O.S.2001, § 799 (second degree robbery); 21 O.S.2003, § 13.1 (minimum sentences — defined crimes). 15. 12 O.S.2001, § 2404(b) provides that “[e]vidence of other crimes … is not admissible … to show action in conformity therewith.” The trial court initially excluded evidence of three prior robberies, including the robbery from 2003, finding the crimes remote and too dissimilar to the current offense. Upon a motion for reconsideration, the court permitted the State to introduce evidence of the 2003 robbery only, under the common plan and scheme exception to 12.O.S.Supp.2002, § 2404(b). 16. Williams v. State, 2008 OK CR 19, ¶ 36, 188 P.3d 208, 218 (citation omitted). 17. English v. State, 1971 OK CR 31, ¶ 5, 480 P.2d 279, 281(citing Harris v. State, 1949 OK CR 25, 204 P.2d 305, 308). 18. Williams, 2008 OK CR 19, ¶ 37, 188 P.3d at 219. 19. Id. The relatedness necessary for the common plan and scheme exception must be so great that it overcomes the prejudicial nature of other crimes evidence. This Court has described such relatedness as “where the crime is committed to prepare the way for another and the commission of the second crime is made to depend upon the perpetration of the first. In that event the second becomes connected and a related transaction and the proof of the commission of the first becomes relevant to show the motive for the perpetration of the second.” English, 1971 OK CR 31, ¶ 5, 480 P.2d at 281 (quotation omitted). 20. Hall v. State, 1980 OK CR 64, ¶ 5, 615 P.2d 1020, 1022 (“Similarity between crimes, without more, is insufficient to permit admission.... The relationship or connection between crimes must be such that it is possible to infer the existence, in the mind of the accused, of a plan or scheme with each crime comprising a part thereof....”(emphasis added). 21. Luna v. State, 1992 OK CR 26, ¶ 8, 829 P.2d 69, 72 (prior drug sales to undercover officer are separate transactions and not part of a common scheme or plan); Blades v. State, 1979 OK CR 147, ¶¶ 13-16, 619 P.2d 875, 878-879 (same). See also Atnip v. State, 1977 OK CR 187, ¶ 12, 564 P.2d 660, 663 (Finding trial court erred in admitting evidence of fifteen other burglaries committed by defendant because the State failed to prove that “these crimes were connected in any manner other than that some of the burglaries were committed on the same day. Furthermore, the mere fact that the evidence shows that the crimes were all burglaries allegedly committed by the same three persons is not sufficient to fall within this exception. Mere similarity of the alleged offenses does not, of itself, indicate common scheme or plan.”). 22. Hall, 1980 OK CR 64, ¶ 5, 615 P.2d at 1022 (citing Turnbow v. State, 1969 OK CR 92, 451 P.2d 387 and Rhine v. State, 1958 OK CR 110, 336 P.2d 913). 23. See United States Department of State, Carjacking — Don’t Be a Victim, http://www.state.gov/m/ds/rls/rpt/19782.htm# (last visited Oct. 6, 2009). 24. 21 O.S.Supp.2006, § 1289.25 (Physical or Deadly Force Against Intruder). 25. Hancock v. State, 2007 OK CR 9, ¶ 101, 155 P.3d 796, 820. 26. McCarty v. State, 1988 OK CR 271, ¶ 13, 765 P.2d 1215, 1220 (citing Lewis v. State, 1977 OK CR 287, 569 P.2d 486, 490 and ABA Standards for Criminal Justice, The Prosecution Function, § 3-5.8(b) (1980)). 27. Williams, 2008 OK CR 19, ¶ 64, 188 P.3d at 222. 28. Dupree v. State, 1973 OK CR 397, ¶¶ 12-13, 514 P.2d 425, 427. 29. See Cobbs v. State, 1981 OK CR 60, ¶¶ 5-6, 629 P.2d 368, 369; Scott v. State, 1988 OK CR 43, ¶¶ 6-7, 751 P.2d 758, 760. 30. Washington v. State, 1999 OK CR 22, ¶ 41, 989 P.2d 960, 974 (citing Romano v. State, 1995 OK CR 74, ¶ 54, 909 P.2d 92, 115). 31. Douglas v. State, 1997 OK CR 79, ¶ 42, 951 P.2d 651, 667 (citing 12 O.S.1991, § 2608(B))(extrinsic evidence may not be used to impeach a witness with specific instances of conduct)).
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32. Beck v. State, 1991 OK CR 126, ¶ 11, 824 P.2d 385, 388. 33. Id. at ¶¶ 12, 15, 824 P.2d at 388-389. 34. Pickens v. State, 2001 OK CR 3, ¶ 21, 19 P.3d 866, 876 (admissibility of evidence is within the discretion of the trial judge, and reversal warranted only where there is a clear abuse of discretion). 35. See, e.g., Harris v. State, 2004 OK CR 1, ¶ 51, 84 P.3d 731, 750-51 (affirming trial court’s refusal to instruct on meaning of “reasonable doubt” and noting that the Court has “long disapproved of attempts by the trial court to define reasonable doubt for the jury”).
LUMPKIN, JUDGE: CONCUR IN PART/ DISSENT IN PART ¶1 I concur in the result reached by the Court but I must take issue with some of the opinion’s syntax and analysis. ¶2 The opinion fails to apply a long line of case law precedent when it states “the State’s argument that Owens waived his right to request an instruction on second degree robbery because he raised an alibi defense is not persuasive. This type of formalism defeats the ends of justice and ignores the duty of the court to charge the jury based on the evidence presented at trial.” The problem with this analysis and syntax is that the “formalism” the opinion refers to is the Rule of Law that is the foundation of our legal system. In a long line of cases this Court has held “that a defendant is not entitled to instructions on any lesser included offense when he defends against the charge by proclaiming his innocence.” Gilson v. State, 2000 OK CR 14, ¶ 119, 8 P.3d 883, 918, and cases cited therein. The defense of alibi is the same as proclaiming innocence in this case. This Court should be strict disciples of the law and not perverters of it. Regardless, because the information charging the crime actually charged robbery by force or fear rather than by serious bodily injury, I agree the instruction should have been given as the primary offense charged in this case. ¶3 I also disagree with the opinion’s discussion of the other crimes evidence which was admitted pursuant to 12 O.S.2001, § 2404(B). While the opinion cites to Williams v. State, 2008 OK CR 19, 188 P.3d 208 and quotes a sentence that seems to confirm the opinion’s analysis, it disregards the substance of the Court’s analysis and decision in Williams. The Court actually found the evidence of the prior robbery in Williams was admissible § 2404(B) evidence to prove identity. In doing so the opinion pointed out the Court had previously considered this same issue in Pickens v. State, 1988 OK CR 35, 751 P.2d 742. In both cases the Court analyzed the methods utilized to commit the robberies. As a part of that analysis the Court stated in Williams:
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This Court should not be in the business of weighing the similarities against the dissimilarities. When there are enough similarities between the two crimes to support the trial court’s decision, then we must give deference to the trial court’s decision. Once that threshold is met, any differences in the two crimes go to the weight of the evidence and not to the admissibility 2008 OK CR 19 ¶ 44, 188 P.3d at 220. ¶4 That is what the Court should have done in this case. If that analysis had been done, it would reflect the evidence should have been admitted in that the facts relating to the similarities of the two crimes in this case are the mirror images of the factual analysis in Williams and Pickens. When the evidence in these three cases is reviewed side by side, there is no reason why the evidence was admissible in the first two cases, but not the present case. An
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objective analysis can make no reasonable distinction between the admissibility of the evidence in each of the three cases. Trying to make that distinction is like trying to strain a gnat’s hair to find a discernable difference. Instead of engaging in that type of verbal gymnastics we should apply the straight forward, common sense approach the Court set out above in Williams. I would find the other crimes evidence properly admitted. LEWIS, JUDGE, CONCURS IN PART, DISSENTS IN PART: ¶1 I agree to granting Appellant relief based on Proposition I. The state presented insufficient evidence of serious bodily injury which is required for first degree robbery. ¶2 I dissent to the opinion insofar as it finds that the state has not established facts sufficient to admit the prior robbery under 12 O.S. §2404(B).
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NOTICE OF INVITATION TO SUBMIT OFFERS TO CONTRACT THE OKLAHOMA INDIGENT DEFENSE SYSTEM BOARD OF DIRECTORS gives notice that it will entertain sealed Offers to Contract (“Offers”) to provide non-capital trial level defense representation during Fiscal Year 2011 pursuant to 22 O.S. 2001, §1355.8. The Board invites Offers from attorneys interested in providing such legal services to indigent persons during Fiscal Year 2011 (July 1, 2010 through June 30, 2011) in the following counties: 100% of the Oklahoma Indigent Defense System caseloads in Craig, Delaware, Logan, Mayes, Nowata and Rogers Counties, Oklahoma. Offer-to-Contract packets will contain the forms and instructions for submitting Offers for the Board’s consideration. Contracts awarded will cover the defense representation in the OIDS non-capital felony, juvenile, misdemeanor, traffic, youthful offender and wildlife cases in the above counties during FY-2011 (July 1, 2010 through June 30, 2011). Offers may be submitted for partial or complete coverage of the open caseload in any one or more of the above counties. Sealed Offers will be accepted at the OIDS offices Monday through Friday, between 8:00 a.m. and 5:00 p.m. The deadline for submitting sealed Offers is 5:00 PM, Thursday, March 11, 2010. Each Offer must be submitted separately in a sealed envelope or box containing one (1) complete original Offer and two (2) complete copies. The sealed envelope or box must be clearly marked as follows: FY-2011 OFFER TO CONTRACT TIME RECEIVED: ________________ COUNTY / COUNTIES DATE RECEIVED: The Offeror shall clearly indicate the county or counties covered by the sealed Offer; however, the Offeror shall leave the areas for noting the time and date received blank. Sealed Offers may be delivered by hand, by mail or by courier. Offers sent via facsimile or in unmarked or unsealed envelopes will be rejected. Sealed Offers may be placed in a protective cover envelope (or box) and, if mailed, addressed to OIDS, FY-2011 OFFER TO CONTRACT, Box 926, Norman, OK 73070-0926. Sealed Offers delivered by hand or courier may likewise be placed in a protective cover envelope (or box) and delivered during the above-stated hours to OIDS, at 1070 Griffin Drive, Norman, OK 73071. Please note that the Griffin Drive address is NOT a mailing address; it is a parcel delivery address only. Protective cover envelopes (or boxes) are recommended for sealed Offers that are mailed to avoid damage to the sealed Offer envelope. ALL OFFERS, INCLUDING THOSE SENT BY MAIL, MUST BE PHYSICALLY RECEIVED BY OIDS NO LATER THAN 5:00 PM, THURSDAY, MARCH 11, 2010 TO BE CONSIDERED TIMELY SUBMITTED. Sealed Offers will be opened at the OIDS Norman Offices on Friday, March 12, 2010, beginning at 9:00 AM, and reviewed by the Executive Director or his designee for conformity with the instructions and statutory qualifications set forth in this notice. Non-conforming Offers will be rejected on Friday, March 12, 2010, with notification forwarded to the Offeror. Each rejected Offer shall be maintained by OIDS with a copy of the rejection statement. Copies of qualified Offers will be presented for the Board’s consideration at its meeting on Friday, March 26, 2010, at Griffin Memorial Hospital, Patient Activity Center (Building 40), 900 East Main, Norman, Oklahoma 73071. 216
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NOTICE OF INVITATION TO SUBMIT OFFERS TO CONTRACT With each Offer, the attorney must include a résumé and affirm under oath his or her compliance with the following statutory qualifications: presently a member in good standing of the Oklahoma Bar Association; the existence of, or eligibility for, professional liability insurance during the term of the contract; and affirmation of the accuracy of the information provided regarding other factors to be considered by the Board. These factors, as addressed in the provided forms, will include an agreement to maintain or obtain professional liability insurance coverage; level of prior representation experience, including experience in criminal and juvenile delinquency proceedings; location of offices; staff size; number of independent and affiliated attorneys involved in the Offer; professional affiliations; familiarity with substantive and procedural law; willingness to pursue continuing legal education focused on criminal defense representation, including any training required by OIDS or state statute; willingness to place such restrictions on one’s law practice outside the contract as are reasonable and necessary to perform the required contract services, and other relevant information provided by attorney in the Offer. The Board may accept or reject any or all Offers submitted, make counter-offers, and/or provide for representation in any manner permitted by the Indigent Defense Act to meet the State’s obligation to indigent criminal defendants entitled to the appointment of competent counsel. FY-2011 Offer-to-Contract packets may be requested by facsimile, by mail, or in person, using the form below. Offer-to-Contract packets will include a copy of this Notice, required forms, a checklist, sample contract, and OIDS appointment statistics for FY-2005, FY-2006, FY-2007, FY-2008 and FY-2010 together with a 5-year contract history for each county listed above. The request form below may be mailed to OIDS OFFER-TO-CONTRACT PACKET REQUEST, Box 926, Norman, OK 73070-0926, or hand delivered to OIDS at 1070 Griffin Drive, Norman, OK 73071 or submitted by facsimile to OIDS at (405) 801-2661. ************ REQUEST FOR OIDS FY-2011 OFFER-TO-CONTRACT PACKET Name:___________________________________________________________ OBA #:______________________________ Street Address:___________________________________________________ Phone:______________________________ City, State, Zip:___________________________________________________ Fax:_ _______________________________ County / Counties of Interest:___________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________
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NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Judge of the Court of Criminal Appeals District One This vacancy will be created by the retirement of the Honorable Charles Chapel effective March 1, 2010. [To be appointed to the office of Judge of the Court of Criminal Appeals an individual must have been a qualified elector of the judicial district applicable, as opposed to a registered voter, for one year immediately prior to his or her appointment, and additionally, must be at least 30 years of age and have been a licensed attorney, practicing within the State of Oklahoma, or serving as a judge of a court of record in Oklahoma, or both, for five years preceding his/her appointment.] Application forms can be obtained by contacting Tammy Reaves, Administrative Office of the Courts, 1915 North Stiles, Suite 305, Oklahoma City, Oklahoma 73105, (405) 521-2450, or online at www.oscn.net under the link to Judicial Nominating Commission. Applications must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, February 19, 2010. If applications are mailed, they must be postmarked by midnight, February 19, 2010. Mark D. Antinoro, Chairman Oklahoma Judicial Nominating Commission
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Court of Civil Appeals Opinions 2009 OK CIV APP 94 TYSON GIRDNER, Plaintiff/Appellant, v. BOARD OF COMMISSIONERS OF CHEROKEE COUNTY, Defendant/Appellee. Case No. 106,295. October 20, 2009 APPEAL FROM THE DISTRICT COURT OF CHEROKEE COUNTY, OKLAHOMA HONORABLE G. BRUCE SEWELL, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS Monte W. Strout, Tahlequah, Oklahoma, for Appellant Chris J. Collins, Andy Artus, COLLINS, ZORN & WAGNER, P.C., Oklahoma City, Oklahoma, for Appellee DEBORAH B. BARNES, PRESIDING JUDGE: ¶1 Under the accelerated procedure for orders granting motions to dismiss,1 Tyson Girdner (Girdner) appeals the trial court’s Journal Entry of Judgment, filed on September 4, 2008. Girdner claims it was error for the trial court to grant the Board of County Commissioners of Cherokee County’s (Board) motion to dismiss Girdner’s Third Amended Petition with prejudice. We find the trial court correctly granted the motion to dismiss, but incorrectly dismissed the case with prejudice. Accordingly, we affirm in part, reverse in part, and remand with instructions. ¶2 Girdner filed a Petition on October 6, 2005, naming “Cherokee County ex rel., Cherokee, County Sheriff’s Office” as the defendant. Girdner alleged that on September 21, 2004, he was pulled over by Cherokee County Sheriff’s Deputy David Tate (Tate), at which time Tate allegedly beat Girdner with his baton, without legal justification, causing serious injuries that required surgery to repair. Girdner alleged that the action arose from the “tortuous [sic] acts of Deputy David Tate, acting in his official capacity under color of law which were unwarranted, illegal acts of assault and battery upon the Plaintiff . . . .2 Girdner prayed to recover damages for medical services, disability, disfigurement, lost wages, pain, suffering, and “the costs of defense of the frivolous actions pressed 220
by Tate to cover his illegal acts which were disposed of in favor of the Plaintiff.” ¶3 On October 26, 2005, the Sheriff’s Office specially appeared and moved to dismiss the Petition on the grounds that it is not an entity capable of being sued. The next day, on October 27, 2005, Girdner filed his First Amended Petition, naming “Board of County Commissioners of Cherokee County” as the defendant,3 instead of the Sheriff’s Office. In all other respects, the First Amended Petition was identical to the original Petition. ¶4 On January 5, 2006, Board filed its Answer to the First Amended Petition, denying the tort allegations and asserting various affirmative defenses. Board conducted discovery, including deposing Girdner. ¶5 On May 30, 2008, Board filed its Motion for Summary Judgment, arguing that it was immune from liability for assault, battery, and malicious prosecution under the Oklahoma Governmental Tort Claims Act (GTCA)4 and that any false arrest claim that might be construed to be included in the First Amended Petition should fail because probable cause is a defense. ¶6 Girdner responded on June 16, 2008, requesting summary judgment be denied. Girdner asserted in his summary judgment response brief that, in addition to the assault and battery allegations in his first two petitions, he also “intends to prove negligent training, hiring” by Board and thus summary judgment should be denied. Girdner made this statement despite the fact he had not included any negligent training and hiring claim in his original or First Amended Petition. Girdner claims that Board should have addressed these negligence claims in its Motion for Summary Judgment because Girdner had sent Board a draft of a proposed pre-trial order on March 25, 2008, that listed “negligence” as his first ground of recovery.5 ¶7 On June 17, 2008, Girdner filed his “Supplemental Response to Defendant’s Motion for Summary Judgment: Request for Leave to Amend Petition.” In this request for leave to amend, made over two-and-a-half years after the First Amended Petition was filed on October 27, 2005, Girdner admits the word “negli-
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gence” does not appear in the First Amended Petition. As an exhibit to his Supplemental Response brief, Girdner attached his proposed Second Amended Petition. In the proposed Second Amended Petition, Girdner added Tate as a party defendant and alleged, in addition to the previous assault and battery allegations, that Tate was negligently trained and hired by Board. The proposed Second Amended Petition, however, did not name Board as a defendant, but instead, once again, erroneously named “Cherokee County, ex rel., Cherokee, County Sheriff’s Office” as defendant, just as Girdner had done in his original Petition. ¶8 On June 25, 2008, the trial court denied Board’s Motion for Summary Judgment and granted Plaintiff leave to “file amended petition” within 20 days. Board filed its “Reply and Objection to Plaintiff’s Supplemental Response to Defendant’s Motion for Summary Judgment” on June 26, 2008. In this Reply, Board objected to any leave to file an amendment, asserting the proposed Second Amended Petition once again named the Sheriff’s Office instead of Board and that Girdner’s claims are barred by the statute of limitations. Girdner filed the Second Amended Petition on July 1, 2008. ¶9 On July 21, 2008, the Sheriff’s Office made a special appearance and moved to dismiss the Second Amended Petition. The Sheriff’s Office argued that it was not a proper party defendant and that the statute of limitations bars Girdner’s claims. ¶10 Instead of filing a brief in response to the Sheriff’s Office’s Motion to Dismiss, on July 23, 2008, in an attempt to correct the misnaming of the government defendant, Girdner filed, without requesting or receiving leave of court, his Third Amended Petition, identical to the Second Amended Petition, except naming Board, instead of the Sheriff’s Office, as party defendant.6 ¶11 Named as a defendant once again, Board filed its “Motion to Dismiss Plaintiff’s Third Amended Petition” on July 31, 2008. Board urged the trial court not to consider the pleading, filed without leave of court. Board also asserted that, in any event, Girdner’s claims were barred by the statute of limitations. ¶12 On August 11, 2008, Girdner filed his Response to Board’s Motion to Dismiss, alleging his Third Amended Petition should be allowed because it was merely correcting a scrivener’s error. Girdner asserted that he had Vol. 81 — No. 3 — 1/30/2010
corrected his Petition in the First Amended Petition to name Board instead of the Sheriff’s Office and that the original Petition caption heading was erroneously placed on the Second Amended Petition. Girdner did not address Board’s assertion that his claims were barred by the statute of limitations. ¶13 In no version of Girdner’s Petition does he factually allege that he gave timely notice of his claim for damages for his alleged injuries under the GTCA and timely commenced his lawsuit after denial. The remainder of the record does not contain this information, either. In the Journal Entry of Judgment filed on September 4, 2008, the trial court granted Board’s Motion to Dismiss and dismissed the case with prejudice. It is from that judgment that Girdner appeals. STANDARD OF REVIEW ¶14 In reviewing a motion to dismiss, an appellate court, like a trial court, is required to take as true all of the challenged pleading’s allegations, together with all reasonable inferences drawn from them. Tuffy’s, Inc. v. City of Oklahoma City, 2009 OK 4, 212 P.3d 1158. The standard of review for an order dismissing a case for failure to state a claim upon which relief can be granted is de novo and involves consideration of whether a plaintiff’s petition is legally sufficient. Fanning v. Brown, 2004 OK 7, 85 P.3d 841. A motion to dismiss cannot be sustained “unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief.” Miller v. Miller, 1998 OK 24, ¶ 15, 956 P.2d 887, 894. (Footnote omitted.) ANALYSIS ¶15 Oklahoma has adopted the doctrine of sovereign immunity. The GTCA sets forth this doctrine, stating, “[t]he state, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts.” 51 O.S.2001 § 152.1(A). The GTCA waives that immunity only to the extent and in the manner provided for in the GTCA. 51 O.S.2001 § 152.1(B). ¶16 Title 51 O.S.2001 § 153(A) provides as follows: A. The state or a political subdivision shall be liable for loss resulting from its
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torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state. . . . The GTCA is the exclusive remedy by which an injured plaintiff may recover in tort against a governmental entity in this state. 51 O.S.2001 § 153(B); Tuffy’s, Inc. v. City of Oklahoma City, at ¶ 7, 212 P.3d at 1163. ¶17 Under sections 156 and 157 of the GTCA, suits authorized by the GTCA may only be maintained if valid notice of a claim has been given to the governmental subdivision within one year of the tort injury, and if the action is commenced within 180 days after denial of the claim. Title 51 O.S. Supp. 2003 § 156 provides, in pertinent part, as follows: A. Any person having a claim against the state or a political subdivision within the scope of Section 151 et seq. of this title shall present a claim to the state or political subdivision for any appropriate relief including the award of money damages. B. Except as provided in subsection H of this section, claims against the state or a political subdivision are to be presented within one (1) year of the date the loss occurs. A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.
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D. A claim against a political subdivision shall be in writing and filed with the office of the clerk of the governing body. ¶18 Further, 51 O.S.2001 § 157 provides: A. A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the state or political subdivision has denied the claim or reached a settlement with the claimant before the expiration of that period. If the state or a political subdivision approves or denies the claim in ninety (90) days or less, the state or political subdivision shall give notice with222
in five (5) days of such action to the claimant at the address listed in the claim. If the state or political subdivision fails to give the notice required by this subsection, the period for commencement of an action in subsection B of this section shall not begin until the expiration of the ninety-day period for approval. The claimant and the state or political subdivision may continue attempts to settle a claim, however, settlement negotiations do not extend the date of denial unless agreed to in writing by the claimant and the state or political subdivision. B. No action for any cause arising under this act, Section 151 et seq. of this title, shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after the denial of the claim as set forth in this section. . . . (Emphasis added.) ¶19 Notice and timely commencement of suit are conditions precedent to the right to pursue judgment against a political subdivision. Johns v. Wynnewood School Board of Education, 1982 OK 101, 656 P.2d 248. Compliance with these provisions must be alleged by a claimant in the petition. “The petition must factually allege either actual or substantial compliance with the notice provisions of the [GTCA].” Mansell v. City of Lawton, 1995 OK 81, 901 P.2d 826, n.2. (Citation omitted.) ¶20 Neither Girdner’s Petition nor any subsequent amendment or attempt to amend the Petition factually alleged either actual or substantial compliance with the pre-lawsuit written notice of claim provisions of the GTCA. Title 12 O.S.2001 § 2008(A)(1) requires that a plaintiff’s pleading setting forth a claim contain a “short and plain statement of the claim showing that the pleader is entitled to relief[.]” (Emphasis added.) A motion to dismiss “tests a pleading’s sufficiency to support a legally cognizable claim . . . .” Darrow v. Integris Health, Inc., 2008 OK 1, 176 P.3d 1204, 1209, n.17. Compliance with the written notice of claim and denial of the claim provisions under the GTCA are prerequisites to the State’s (or political subdivision’s) consent to be sued and to the exercise of judicial power to remedy the alleged tortious wrong by the government. Cruse v. Board of County Commissioners of Atoka County, 1995 OK 143, ¶¶ 16-18, 910 P.2d 998, 1004-1005. The incident occurred on September 21, 2004, and the time to file a written notice of any
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claim arising from the incident was within one year.7 Such pre-lawsuit notice of claim, followed by a timely commencement of suit by Girdner within 180 days after the claim is denied by Board (or deemed denied by operation of law under § 157(A)), was required to be specifically pled by Girdner in his Petition to invoke the power of the trial court to enforce an alleged tort claim against Board. Id. Girdner has failed to allege sufficient facts showing compliance with the GTCA’s pre-lawsuit requirements under the § 2008(A)(1) notice pleading requirements to withstand a motion to dismiss. ¶21 In Willborn v. City of Tulsa, 1986 OK 44, 721 P.2d 803, the Oklahoma Supreme Court considered an appeal from the sustaining of a demurrer to the appellant’s petition. The appellant had filed an action, alleging injuries resulting from the tortious actions of police officers during his arrest. The trial court dismissed his tort claims with prejudice8 for failure to comply substantially with the Political Subdivision Tort Claims Act.9 The Court found Willborn’s petition to be “facially flawed” in that he did not allege valid notice of his tort claim and timely commencement after denial pursuant to the Act. ¶22 Likewise, in Lucas v. Independent Public School District No. 35 of Holdenville, 1983 OK 121, 674 P.2d 1131, the Oklahoma Supreme Court considered another appeal from a sustained demurrer to a petition in a negligence action brought under the Political Subdivision Tort Claims Act. The trial court had dismissed the petition “for failure to allege facts sufficient to show compliance with the requirement of 51 O.S. § 156.” Id. at ¶ 1, 674 P.2d at 1132. The Court noted that “[i]t is undisputed that appellant failed to give the ‘clerk of the governing body’ written notice” within the required time period after the injury occurred. Id. at ¶ 4, 674 P.2d at 1132. The Court affirmed the trial court’s dismissal, stating that the claim was “barred by the statute of limitations.” Id. at ¶ 11, 674 P.2d at 1134. ¶23 Girdner did not allege the specific facts necessary to invoke the power of the trial court to remedy the alleged tortious wrong by Board.10 Because Girdner’s Petitions (and the remainder of the record) are silent as to whether he, in fact, followed the notice provisions of the GTCA and timely filed his Petition after a denial of the claim, we find the trial court’s order of dismissal with prejudice should be Vol. 81 — No. 3 — 1/30/2010
affirmed in part, reversed in part, and remanded with instructions. CONCLUSION ¶24 Upon review of the record and applicable law, we find the trial court’s September 4, 2008, order of dismissal should be, and hereby is, affirmed in part as to the granting of the motion to dismiss, but reversed in part as to dismissal with prejudice, and remanded to the trial court to ascertain under 12 O.S. Supp. 2004 § 2012(G) whether Girdner can remedy the defect regarding failure to plead compliance with the GTCA. ¶25 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS. WISEMAN, V.C.J., and GOODMAN, J., concur. 1. Rule 1.36, Okla. Sup. Ct. Rules, 12 O.S. Supp. 2004, ch. 15, app. 1. 2. The Cherokee County District Attorney filed charges against Girdner on September 24, 2004, in connection with the September 21, 2004, incident, for assault and battery on a peace officer and one count of D. U.I. Girdner was bound over based on a judicial determination of probable cause at his preliminary hearing on March 16, 2005, but the district attorney dismissed the case by court order, filed on June 2, 2005. 3. “In all suits or proceedings by or against a county, the name in which a county shall sue or be sued shall be, ‘Board of County Commissioners of the County of ______,’ but this provision shall not prevent county officers, where authorized by law, from suing in their official name for the benefit of the county.” 19 O.S.2001 § 4. 4. 51 O.S.2001 § 151 et seq., as amended. 5. Board has refused to sign the proposed pre-trial order for the very reason that it included the negligence claims not pleaded by Girdner in the Petition or the First Amended Petition. 6. On July 30, 2008, defendant Tate filed a motion to dismiss and was dismissed without prejudice by an order filed on August 7, 2008. 7. 51 O.S. Supp. 2003 § 156(B). 8. Willborn had conceded he had not made any attempt to comply with the tort claims act notice requirements and that he filed his lawsuit six months out of time; thus, the dismissal with prejudice was proper. In the instant case, however, there is no concession. Girdner’s Petition and amended versions and the record are silent as to whether Girdner filed a timely written notice of claim and then timely filed his Petition after a denial of the claim. 9. The Political Subdivision Tort Claims Act was renamed the Governmental Tort Claims Act in 1984. 10. See also State of Oklahoma ex rel. State Insurance Fund v. JOA, Inc., 2003 OK 82, 78 P.3d 534 (“The concept of sovereign immunity has characteristics both consistent and inconsistent with general principles of subject matter jurisdiction. Common law sovereign immunity is similar to subject matter jurisdiction in that immunity acts to bar a court from adjudicating a particular class of causes of action.” Id. at n. 5. “We need not decide whether . . . sovereign immunity . . . coincides perfectly with the contours of subject matter jurisdiction. For the purpose of our analysis we treat the . . . sovereign immunity argument as challenging the trial court’s power to act.” Id. at ¶ 7, 78 P.3d at 536-537 (footnotes omitted); Shanbour v. Hollingsworth, 1996 OK 67, ¶ 7, 918 P.2d 73, 75 (when the legislature consented to judicial enforcement of tort claims, the procedural requirements of §§ 156-157 were narrowly structured and require compliance with the written notice of claim and denial of claim provisions. Judicial power is invoked by the timely filing of the governmental tort claim, and the expiration of the time period in § 157(B) operates to bar judicial enforcement of the claim against the government to which the legislature waived sovereign immunity); State of Oklahoma v. Dixon, 1996 OK 15, 912 P.2d 842 (prelawsuit notice of a claim that complies with the provisions of the GTCA is necessary to invoke the power of the trial court to enforce a governmental tort claims action).
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2009 OK CIV APP 96 STATE OF OKLAHOMA, Plaintiff/Appellee, v. RYAN LEE GILLE, Defendant/Appellant. Case No. 106,016. October 30, 2009 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE RUSSELL HALL, JUDGE AFFIRMED Ryan Lee Gille, Oklahoma City, Oklahoma, Pro Se, David C. Cincotta, Assistant District Attorney, Oklahoma City, Oklahoma, for Appellee. Larry Joplin, Judge: ¶1 Defendant/Appellant Ryan Lee Gille seeks review of the trial court’s order denying his motion to expunge records. In this appeal, Defendant challenges the trial court’s order as affected by errors of both law and fact, and violative of his right to due process of law. ¶2 In May 2003, Defendant was arrested and charged with operation of a motor vehicle while under the influence of alcohol while underage, possession of marijuana and possession of paraphernalia. See, 47 O.S. Supp. 1999 §6-106.4(A)(1)1; 63 O.S. 2001 §2-402(A)(1), (B)(2); 63 O.S. §2-405(B). Upon a non-jury trial, Defendant was convicted of driving under the influence and possession of marijuana, for which he received a two-year deferred sentence. ¶3 Defendant appealed. The Court of Criminal Appeals found “the arresting officer did not have the requisite reasonable suspicion of criminal activity to justify the investigatory stop of” Defendant. The Court of Criminal Appeals consequently held Defendant’s “judgment and sentence must be REVERSED and REMANDED with INSTRUCTIONS TO DISMISS.” (Emphasis original.) Upon transmission of the mandate to the trial court, and on motion to dismiss by the district attorney, the trial court dismissed the charges against Defendant by order filed November 14, 2005. ¶4 On August 13, 2007, Defendant pro se filed a Petition for Expungement of Record in his criminal case. Defendant alleged that, pursuant to 22 O.S. 2001 §18, and 22 O.S. Supp. 2002 §19, he was “entitled to have any record of the charges made expunged so that [he] need not mention them as part of [his] criminal record and may truthfully say no such action has ever occurred in accordance with 22 O.S. §19.” 224
¶5 Plaintiff/Appellee State of Oklahoma, through the Oklahoma County District Attorney, filed an objection to expungement and brief in support. State first asserted that Administrative Order No. AD7-95-16 of the trial court required that all petitions/motions for the expungement of criminal records be filed as a civil case and assigned to a judge in the trial court’s civil division for disposition, but that Defendant improperly filed his Petition to Expunge in his criminal case.2 State secondly argued expungement under 22 O.S. §19 required a showing that “harm to privacy of the person or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records,” and that it was not in the public interest to expunge Defendant’s records, because expungement was not intended to protect “individuals who were guilty of violating the laws of the State of Oklahoma, but who [were] able to have the evidence of that activity suppressed on a technicality.” ¶6 Defendant then filed a motion for summary judgment. Defendant asserted he had established a prima facie showing of harm as a required by §19, but that State had wholly failed to establish any grounds for denial of expungement. See, Hoover v. State, 2001 OK CR 16, 29 P.3d 591; McMahon v. State, 1998 OK CIV APP 103, 959 P.2d 607. State answered, adopting the arguments of its previous objection and brief. Defendant replied, arguing that AD7-9516 constituted a directive to the Court Clerk for processing of pleas for expungement of records, that he bore no responsibility for the Clerk’s mistake in filing his Petition for Expungement in the criminal case, that the trial court in his criminal case retained jurisdiction to consider his petition to expunge, and that refusal to expunge his record on account of non-compliance with the trial court’s administrative order violated his constitutional right to due process. Defendant asserted he had been denied employment on account of the unexpunged records, and that, given reversal of his convictions with instructions to dismiss, and harm to him, the trial court should order his record expunged. ¶7 On consideration of the parties’ filings and arguments, the trial court denied Defendant’s Petition to Expunge, holding: 1. The Defendant does not qualify for an expungement pursuant to 22 O.S. §991c. 2. The Court makes no findings as to whether Defendant is eligible for
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expungement pursuant to 22 O.S. §§18 and 19. 3. Defendant’s Petition for Expungement of Record and Motion for Summary Judgment were filed in violation of Administrative Order AD7-95-16. 4. Nothing in this order should be construed to prohibit the Defendant from filing a Petition for Expungement of Record pursuant to AD7-95-16. Defendant appeals. ¶8 In this appeal, Defendant asserts the trial court erred in denying him relief pursuant to 22 O.S. §§18, 19 and 991c. Particularly, Defendant argues that, given the Court of Criminal Appeals’ order reversing his convictions and remanding to the trial court with instructions to dismiss, expungement is required by the plain language of §§18, 19 and 991c, and denial of his petition by the trial court violated his due process right to be heard. Review of Orders for Expungement ¶9 Prior to 1999, orders entered under §19 were subject to review as a civil appeal. See, In re Adoption of Supreme Court Rules for Expungement of Records, 2005 OK 32, ¶1, 120 P.3d 861; McMahon, 1998 OK CIV APP 103, ¶10, 959 P.2d at 609, fn. 1. Effective November 1, 1999, however, the legislature directed review of orders entered under §19 by the Oklahoma Court of Criminal Appeals. In re Adoption of Rules, 2005 OK 32, ¶2, 120 P.3d at 861; Hoover, 2001 OK CR 16, ¶2, 29 P.3d at 591; 22 O.S. Supp. 1999 §19.3,4 In the 2002 session, the legislature amended §19 to require review of expungement orders by the Oklahoma Supreme Court. 22 O.S. Supp. 2002 §19(C)5,6; In re Adoption of Rules, 2005 OK 32, ¶3, 120 P.3d at 861. Consequently, the instant appeal has been assigned to this Court for review. Relief Under 22 O.S. §991c ¶10 Upon completion of the conditions of a deferred judgment, subsections (C)(1) and (2) of §991c, 22 O.S. Supp. 2003, require that “the verdict or plea of guilty or plea of nolo contendere” shall be expunged from the record, that “[a]ll references to the defendant’s name shall be deleted from the docket sheet,” and “[t]he public index of the filing of the charge shall be expunged by deletion, mark-out or obliteration.” Pursuant to subsection (C)(5) of §991c: Vol. 81 — No. 3 — 1/30/2010
5. Defendants qualifying under [22 O.S.] Section 18 . . . may petition the court to have the filing of the indictment and the dismissal expunged from the public index and docket sheet. This section shall not be mutually exclusive of Section 18 of this title. In the present case, however, Defendant did not complete a deferred sentence. Rather, the convictions upon which he received a deferred sentence were reversed, and the underlying charges were dismissed. Section 991c does not provide for expungement in such a case. The trial court did not err in holding Defendant did not qualify for an expungement pursuant to 22 O.S. §991c. Relief Under 22 O.S. §§18 and 19 ¶11 Section 18(A)(2) of title 22, O.S. 2001, authorizes the filing of a motion or petition for expungement of criminal records by a person whose “conviction was reversed with instructions to dismiss by an appellate court of competent jurisdiction.” “Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part thereof except basic identification information, to be sealed.” 22 O.S. §19(C). ¶12 Relevant to this appeal, we observe the trial court is empowered to adopt reasonable rules for the expeditious resolution of matters presented to it. See, e.g., Bank IV Oklahoma, N.A. v. Southwestern Bank & Trust Co., 1997 OK 31, ¶8, 935 P.2d 323, 326; Petuskey v. Freeman, 1995 OK 9, ¶2, 890 P.2d 948, 950. The trial court’s adoption and application of its rules will not be disturbed unless contrary to constitutional or statutory guarantees. Bank IV Oklahoma, N.A., 1997 OK 31, ¶8, 935 P.2d at 326.7 ¶13 In 1995, the trial court adopted Administrative Order No. AD7-95-16 and directed consideration of a motion or petition for expungement of records as a civil matter. Treatment of a motion or petition for expungement of records as a civil matter is entirely consistent with the view, expressed in McMahon, that motions or petitions to expunge invoked the civil, equitable powers of the court. 1998 OK CIV APP 103, ¶10, 959 P.2d at 609, fn. 1. Treatment of a motion or petition for expungement of records as a civil matter is also entirely consistent with 22 O.S. Supp. 2002 §19(C) directing review of
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orders granting or denying a petition or motion to expunge by the Oklahoma Supreme Court. The trial court’s Administrative Order No. AD7-95-16 was obviously intended to funnel motions or petitions to expunge to the civil division and, in our opinion, constitutes a proper exercise of the trial court’s rule making powers. ¶14 In the present case, the trial court rejected Defendant’s Petition to Expunge for failure to comply with Administrative Order No. AD7-95-16, but without prejudice to refiling as a civil claim. Because Defendant may refile his Petition to Expunge as a civil matter, Defendant has suffered no denial of his due process right to be heard on the merits of his expungement plea. ¶15 Under the facts and circumstances of the present case, we cannot say the trial court erred. The order of the trial court is AFFIRMED, but without prejudice to refiling and consideration of Defendant’s Petition for Expungement as a civil matter pursuant to Administrative Order No. AD7-95-16. MITCHELL, C.J., concurs; HANSEN, P.J., dissents. 1. Renumbered as Title 47, §11-906.4 by Laws 2000, 1st Ex.Sess., c. 8, §33, eff. July 1, 2000. 2. Administrative Order AD7-95-16, filed April 15, 1995, and signed by Daniel L. Owens, then Presiding Administrative Judge of the Seventh Judicial District (which includes Oklahoma County), provides: Effective immediately, all petitions/motions for the expungement of criminal records shall be filed with a CJ designation. The case shall be assigned pursuant to the randomly selected assignment process utilized by the Court Clerk and shall be heard by the assigned judge in the civil division. The pleadings and notice given shall comply with 23 O.S. §§ 18, 19. All pursuant to 20 O.S. §§ 18, 19. 3. “. . . . Any order entered pursuant to this subsection may be appealed to the Oklahoma Court of Criminal Appeals in accordance with the rules of the Oklahoma Court of Criminal Appeals.” 4. Laws 1999, c. 234, §1, eff. Nov. 1, 1999. 5. “. . . . Any order entered pursuant to this subsection may be appealed by the petitioner, the district attorney, the arresting agency, or the Oklahoma State Bureau of Investigation to the Oklahoma Supreme Court in accordance with the rules of the Oklahoma Supreme Court.” 6. Laws 2002, c. 475, §2. 7. “District Courts may impose a local rule that has the force and effect of law when it does not conflict with statute, the Oklahoma Constitution or U.S. Constitution.” (Citations omitted.)
2009 OK CIV APP 93 CHARLES E. GREGG, INDIVIDUALLY, Plaintiff/Appellant v. LE MARS 226
INSURANCE COMPANY, Defendant/ Appellee Case No. 106,379. October 6, 2009 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE DEBORAH C. SHALLCROSS, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS Greg A. Farrar, FARRAR & FARRAR, Tulsa, Oklahoma, for Plaintiff/Appellant Tom E. Mullen, FENTON, FENTON, SMITH, RENEAU & MOON, Oklahoma City, Oklahoma, for Defendant/Appellee JERRY L. GOODMAN, JUDGE: ¶1 Insured Charles E. Gregg appeals the trial court’s September 12, 2008, order awarding him pre-judgment interest. He contends the trial court erred in calculating the amount of interest due him. The appeal was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(a)(1), 12 O.S.2001 and Supp. 2003, ch. 15, app. 1. We hold Insured was entitled to pre-judgment interest on his claim for uninsured/underinsured benefits and that interest began to accrue when the insurance carrier’s liability was established. Under these facts and the applicable law, the date the carrier’s liability became fixed was the date Le Mars Insurance Company (Le Mars) agreed to make payment of $80,000.00. Both parties had agreed the claim to Le Mars was worth at least $80,000.00. The parties further agreed they would submit the issue of whether the claim was worth more than $80,000.00 to arbitration, which resulted in an additional award to Insured of $65,000.00. The trial court’s order is affirmed in part, reversed in part, and remanded with directions. FACTS ¶2 Insured was injured in an automobile accident on August 15, 2004. He collected the policy limit of $20,000.00 from the tortfeasor’s liability insurance policy and collected the Uninsured/Underinsured Motorist (UM/UIM) limit of $100,000.00 from his personal UM/ UIM policy. He then made a claim against Le Mars’s UM/UIM policy for an additional $300,000.00 in coverage.1
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¶3 In a December 6, 2005, letter from Le Mars to Insured’s attorney, Le Mars tendered the limits of its medical payment coverage to Insured, and stated, “Also as we discussed, the Le Mars Insurance Company has agreed to waive its right of subrogation.” ¶4 Le Mars investigated and determined Insured’s total damages were between $160,000.00 and $200,000.00, inclusive of interest and costs. In a letter dated October 18, 2006, Le Mars acknowledged and rejected offers of $25,000.00 and $80,000.00 to resolve Le Mars’s liability on the UM/UIM claim. The record indicates Le Mars mailed $80,000.00 to Insured on November 1, 2006, and the payment was received by Insured on November 3, 2006. ¶5 As the parties were unable to reach an agreement regarding the total damages, they agreed to submit the issue of damages in excess of $80,000.00 to arbitration. The arbitrators found Insured’s damages totaled $265,000.00. Giving credit for $120,000.00 already paid by other carriers and $80,000.00 previously paid by Le Mars, $65,000.00 remained in unpaid damages. ¶6 On March 29, 2007, a partial release was executed by Insured in favor of Le Mars. The release acknowledged prior receipt of $80,000.00 from Le Mars, and an additional $65,000.00 received for the arbitration award tendered with the release. Insured released all claims against Le Mars except for pre- and post-judgment interest. The release states: “While Le Mars Insurance Company asserts that pre-judgment interest under these facts is not allowed; Le Mars Insurance Company recognizes and agrees that Charles Gregg is entitled to assert and litigate his claim for pre-judgment and post-judgment interest and costs of that action only.”
$65,000.00; noted that the amount had been paid by Le Mars on March 22, 2007;2 found Insured was entitled to pre-judgment interest from the date the liability of the tortfeasor was fixed until the judgment was paid on March 22, 2007;3 and found the date the liability of the tortfeasor was fixed was January 18, 2007, the date the Arbitration Statement was submitted. The trial court deemed the Arbitration Statement equivalent to a confession of liability by Le Mars. The trial court then calculated prejudgment interest in the amount of $1,149.75 and awarded Insured costs in the amount of $244.00. ¶9 Insured appeals only the trial court’s finding regarding the commencement of pre-judgment interest. Insured asserts the date the liability of the tortfeasor was fixed was December 6, 2005, which was the date Le Mars, as the UM/UIM carrier, waived its subrogation rights. Le Mars did not appeal the trial court’s determination that pre-judgment interest was owed, but contends the trial court was correct that January 18, 2007, was the date liability was fixed and pre-judgment interest commenced. STANDARD OF REVIEW ¶10 Summary judgment is used to reach a final judgment where there is no dispute as to any material fact, and where one party is entitled to judgment as a matter of law. See Indiana Nat’l Bank v. Dep’t of Human Servs., 1993 OK 101, ¶ 10, 857 P.2d 53, 59; Sellers v. Okla. Pub. Co., 1984 OK 11, ¶ 23, 687 P.2d 116, 120. We review a grant of summary judgment de novo. Young v. Macy, 2001 OK 4, ¶ 9, 21 P.3d 44, 47. In a de novo review, we have plenary, independent, and non-deferential authority to determine whether the trial court erred in its application of the law. Id. ANALYSIS
¶7 Insured demanded post-judgment interest on the arbitration award from December 6, 2005, the date Le Mars waived its subrogation rights. Le Mars refused to pay interest and Insured filed suit on April 5, 2007. Insured requested the trial court confirm the arbitration award of $65,000.00 and sought a declaratory judgment regarding the interest calculation.
¶11 Both Le Mars’s UM/UIM policy and Oklahoma’s uninsured/underinsured motorist coverage laws require an insurer to pay “all sums the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle.” See 36 O.S.2001 and Supp. 2004, § 3636(B). It is undisputed by the parties that Insured is legally entitled to recover damages from Le Mars.
¶8 Insured filed a motion for summary judgment on October 5, 2007. The trial court, in an order filed September 12, 2008, approved the arbitration award entered on January 23, 2007; entered a judgment against Le Mars for
¶12 The parties further agree for purposes of this appeal that Insured is entitled to pre-judgment interest pursuant to 12 O.S.2001, § 727.1.4 There is no issue regarding whether additional interest will exceed policy limits.
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¶13 The parties disagree, however, on when § 727.1 pre-judgment interest begins to accrue. Insured contends pre-judgment interest began to run on December 6, 2005, the date Le Mars waived its subrogation rights against the tortfeasor, thus implying acceptance of liability on its part. Le Mars, on the other hand, contends pre-judgment interest began to run on January 23, 2007, the date the arbitrators determined Insured’s total damages. Le Mars contends the arbitrators’ award was inclusive of all interest and costs. ¶14 As set out above, the trial court found the submission of the issue to the arbitrators was the equivalent of a confession of liability, and fixed January 18, 2007, as the date prejudgment interest began to run. ¶15 The applicable case law is set out as follows. The Oklahoma Supreme Court in Nunn v. Stewart, 1988 OK 51, 756 P.2d 6, stated: []The Court of Appeals, in regard to the question of the date from which interest should be due on the sums payable under the uninsured motorist provisions of the policies covering appellant, properly stated that under 23 O.S.1981 § 22: “The law in Oklahoma is that where the obligation is to pay money, and that obligation is fixed, and the only thing to be determined is the amount, interest will attach from the time the obligation arises.” ... The Court of Appeals then correctly stated that the obligation to pay under the uninsured motorist provisions did not arise until the liability of the uninsured motorist was fixed. The Court of Appeals then incorrectly held that this liability did not become fixed until judgment was rendered by the trial court. A review of the record indicates that appellee confessed the liability of the uninsured motorist as of June 25, 1983. (Emphasis added). Id. at ¶ 3, at 7. ¶16 In Torres v . Kansas City Fire and Marine Insurance Company, 1993 OK 32, 849 P.2d 407, the Oklahoma Supreme Court held the trial court correctly added pre-judgment interest to an award made pursuant to a UM/UIM insurance policy, measured from the date suit was filed until the date of the verdict. Id. at ¶ 1, at 408-09. The date of filing suit as marking the 228
commencement of the interest period was again affirmed in Carney v. State Farm Mutual Insurance Company, 1994 OK 72, ¶ 3, 877 P.2d 1113, 1114. ¶17 In Mellenberger v. Sweeney, 1990 OK CIV APP 85, 800 P.2d 747, the Court of Civil Appeals held that interest began to run when “the amount of damages is confessed or determined by the Trial Court.” Id. at ¶ 11, at 750. ¶18 Pre-judgment interest begins to run on the date the liability of the uninsured motorist carrier is fixed. That date is the earlier of its admission of liability or the commencement of a suit against it. As no suit was filed, we hold prejudgment interest began when Le Mars admitted liability. Le Mars admitted liability when it agreed to tender payment of $80,000.00 to Insured in a letter dated October 18, 2006. Le Mars made an additional payment of $65,000.00 on March 29, 2007, pursuant to Insured’s arbitration award; however, that payment represented the additional disputed damages, liability for which Le Mars had previously confessed. ¶19 We reject Insured’s argument that Le Mars confessed liability when it waived subrogation. The waiver of subrogation is required by 36 O.S.2001 and Supp. 2004, § 3636(F) when the UM/UIM carrier elects not to pursue an action against the tortfeasor. It is not an admission of liability; rather, it is a waiver of the right to sue the tortfeasor. CONCLUSION ¶20 The trial court’s order finding Insured is entitled to pre-judgment interest is affirmed. The trial court’s determination that pre-judgment interest began to run on January 18, 2007 is incorrect and is reversed. Le Mars confessed liability on October 18, 2006, when it agreed to tender $80,000.00 to Insured; that is the correct date for pre-judgment interest to begin accruing. This matter is remanded to the trial court with directions to recalculate the amount of pre-judgment interest owed consistent with this opinion and enter judgment accordingly. ¶21 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. WISEMAN, V.C.J., and BARNES, P.J., concur. 1. Insured was acting in his capacity as State Commander for the Oklahoma American Legion when injured. Le Mars provided liability and UM/UIM coverage through a corporate policy issued to the American Legion Department of Oklahoma. 2. The record indicates payment of the arbitration award was tendered with the release, which is dated March 29, 2007. 3. See footnote 4.
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4. This Court recognizes that Le Mars’ position at trial had been that no pre-judgment interest was owed at all. However, since Le Mars has not appealed the trial court’s determination that pre-judgment interest was owed, that issue is not before us and is deemed confessed. Therefore, only the issue of when pre-judgment interest began to accrue is before us.
2009 OK CIV APP 92 J.S., Individually, and as Parent and Next Friend of C.S., a Minor Child, Plaintiff/ Appellee, v. BRADLEY JOE HARRIS, Defendant, and VIVIAN WILLIAMS, Defendant/Appellant. Case No. 105,004. July 9, 2009 APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, OKLAHOMA HONORABLE J. DWAYNE STEIDLEY, TRIAL JUDGE REVERSED AND REMANDED WITH DIRECTIONS Pamela L. Anthony, HOOD & RAYNOLDS, P.C., Tulsa, Oklahoma, for Plaintiff/Appellee Stephen M. Coates, WILSON, CAIN & ACQUAVIVA, Tulsa, Oklahoma, for Defendant/Appellant DEBORAH B. BARNES, PRESIDING JUDGE: ¶1 Appellant/Defendant, Vivian Williams (Williams), appeals from a final judgment on a jury verdict in an action by Appellee/Plaintiff, J.S., on behalf of her son, C.S.,1 alleging negligence and from the trial court’s Order denying Williams’ Motion for Judgment Notwithstanding the Verdict,2 and from the trial court’s Order granting prejudgment interest and postjudgment interest. On appeal, Williams raises four issues, but the dispositive issue on appeal is whether the trial court erred in denying Williams’ Motion for Judgment Notwithstanding the Verdict. Because the trial court erroneously found that Williams owed a duty of care to C.S., we reverse and remand with directions. FACTS AND PROCEDURAL BACKGROUND ¶2 On December 27, 2001, C.S., then 15 years old, was sexually molested by Williams’ grandson, Defendant Bradley Joe Harris (Harris),3 inside a mobile home owned and occupied by Williams. Williams denied she owed any duty to C.S. and denied she was negligent. She twice timely filed motions for directed verdict, which were denied. Williams also timely filed her Motion for Judgment Notwithstanding the Verdict and argued that her motions for directed verdict should have been granted because Vol. 81 — No. 3 — 1/30/2010
no evidence was produced that established Williams should have known that Harris would sexually molest C.S. on December 27, 2001. Plaintiff conceded that Williams had no actual knowledge that Harris would sexually molest C.S. Williams also argued that her motions for directed verdict should have been granted because she owed no duty to C.S. and, if she did owe a duty, she was not liable because Harris’ intentional and criminal conduct was an intervening and superseding cause of the injury to C.S. ¶3 In March of 2001, Williams invited Harris to live in her trailer home until he could get settled after his honorable discharge from the military. He testified he paid no rent. Harris, then 23 years old, was employed full time, had no criminal record, and had no reported disciplinary or other problems in elementary, middle or high school. He had not told Williams he was sexually attracted to minors. Harris testified he was free to come and go from Williams’ home as he chose, was free to invite whomever he chose to her home, and was expected to act as an adult and a gentleman while he was staying in her home. Harris testified that he had no doubt his grandmother would throw him out of her house if he did not behave properly and lawfully. ¶4 In the nine months Harris lived in Williams’ home, Williams was gone for about two and a half months to care for her infirm elderly father in Ohio. However, during the period she was at her home, she testified that she never saw Harris with any person in her home other than C.S.4 C.S. testified, however, that other minors came to Williams’ home with Harris. On the three occasions she saw C.S. in her home, Williams testified that she had virtually no conversation with him other than to say “Hi.” What she testified she saw was C.S. leaving Harris’ bedroom one morning and going out the front door with Harris. C.S. also testified that Williams saw him leave Harris’ bedroom about 8:00 a.m. and walk out the front door with Harris while Williams prepared breakfast. Thereafter, she saw C.S. arrive at her home one evening with Harris to watch television in her living room, which they continued to do after she went to bed, as usual, sometime between 9:00 and 10:00 p.m. On the night C.S. was sexually molested, the third time she saw C.S., he and Harris went into Williams’ bedroom where she had retired for the night. C.S. testified that Harris told his grandmother that
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C.S. was going to spend the night. C.S. said “Hi.” Williams said “Hi.” Harris and C.S. both testified that they then went to Harris’ bedroom. ¶5 Although Williams did not know if C.S. had permission from his parents to be at her home, J.S. testified that she gave her son permission to spend the night with Harris at his grandmother’s home on the 15 or so occasions C.S. spent the night with Harris, including the night C.S. was sexually molested. Although Williams did not know where Harris was spending his free time, Harris testified that he spent his free time in the company of other minors, including C.S., at a roller rink that had been operated by J.S. until August 2001, but to which C.S. continued to go through December 2001. Although Harris’ interactions with these minors and their parents were unknown to Williams, Tim Norris, a former Claremore Police Officer, who investigated the sexual molestation charge against Harris, testified that Harris gained the trust of the parents and minors with whom he engaged at the rink. Harris testified that Williams knew he had a good and longstanding relationship with J.S. and her husband, S.S., but Williams never met or spoke to them. J.S. testified that she never met or spoke to Williams, though she considered Harris to be a “big brother figure” to her son who, at 15, had not yet reached puberty and, according to his mother, still had a round, baby-face. ¶6 While Williams imposed no particular rules on Harris while he lived in her home, she had access to his bedroom. The door had no lock, and she freely entered the bedroom to clean it. Harris testified that he kept swords and a loaded pistol in his room, usually in his closet, but not otherwise secured or hidden. Harris was trained in law enforcement while in the military and participated in various special operation missions. The swords were souvenirs from those missions, and the gun was one he had been trained to use. Williams testified that she had no knowledge of the gun, though she went into his closet to clean. She did see swords he openly kept in his room. ¶7 On the night C.S. was sexually molested, Williams heard no noises coming from Harris’ bedroom, which was at the other end of the trailer and separated from her bedroom by the living room and kitchen. C.S. also testified that he never told Williams about the sexual assault, nor did he seek her help or anyone else’s after 230
the assault that night. It was not until a week after the assault that C.S. told his sister, then his parents, about what Harris had done. He did so after learning from one of his other friends that Harris had sexually molested him, too, in Williams’ home. STANDARD OF REVIEW ¶8 Review of a ruling on a motion for judgment notwithstanding the verdict is de novo, since it presents a question of law. First National Bank in Durant v. Honey Creek Entertainment Corp., 2002 OK 11, 54 P.3d 100; Cline v. DaimlerChrysler Co., 2005 OK CIV APP 31, 114 P.3d 468. In any action based on negligence, the first prerequisite must be to establish the existence of a legally cognizable duty. Wofford v. Eastern State Hospital, 1990 OK 77, 795 P.2d 516, 518. Duty is a question of law for the court in a negligence action. Delbrel v. Doenges Brothers Ford, Inc., 1996 OK 36, 913 P.2d 1318. ANALYSIS ¶9 No actionable negligence claim can lie where the defendant has breached no duty owed to the plaintiff. Absent a special relationship, a defendant has no duty of care to the plaintiff for the intentional and criminal acts of a third person against that plaintiff. Joyce v. M & M Gas Co., 1983 OK 110, ¶ 5, 672 P.2d 1172, 1173. “Just because the defendant has created a risk which harmed the plaintiff that does not mean that, in the absence of some duty to the plaintiff, the defendant will be held liable.” Nicholson v. Tacker, 1973 OK 75, ¶ 11, 512 P.2d 156, 158. ¶10 Oklahoma follows the common law principle of negligence that generally no duty is owed to aid or protect another. Nor does a person have a duty to anticipate and prevent the intentional or criminal acts of a third party, absent special circumstances. The types of special circumstances recognized in Oklahoma are: (1) where the actor is under a special responsibility toward the person harmed; and (2) “where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable [person] would have taken into account.” Joyce v. M & M Gas Co., at ¶ 5, 672 P.2d at 1174. (Emphasis added.) The court in Henry v. Merck and Company, Inc., 877 F.2d 1489 (10th Cir. 1989)(quoting Nicholson) noted that other jurisdictions recognize additional special circumstances that create a duty to anticipate and prevent the acts of third
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parties. 877 F.2d at 1492, n.5 (citing Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976), the seminal decision in which the California court ruled that once a psychotherapist determines, or pursuant to his or her professional standards reasonably should have determined, that a patient presents a serious danger of violence to others, the psychotherapist bears a duty to exercise reasonable care to protect the foreseeable victim from that danger). ¶11 Oklahoma courts have discussed special circumstances and special relationships as the bases for imposing liability on a defendant for the foreseeable harm a third person may inflict on another. In Felty v. City of Lawton, 1977 OK 109, 578 P.2d 757, the Court discussed several California cases wherein the defendant driver left a vehicle unattended with the keys in the ignition, and subsequently a thief stole the vehicle and caused harmed to another because of the negligent or reckless operation of the vehicle. From its reading of those cases, the Felty Court concluded that “the ‘special circumstances’ rule recognized by the [California] courts . . . is based upon the rationale that there are some ‘special circumstances’, under which not only the theft of an automobile with the keys in the ignition [is] foreseeable, but the negligent operation of the vehicle, if stolen, is also foreseeable, thus giving rise to a duty to prevent the foreseeable negligence.”5 Id. at ¶ 18, 578 P.2d at 762. (Footnote omitted.) The Court in Felty held, however, that under the facts pled in the appellants’ petition, no special circumstances existed that would impose an additional duty on the part of the defendant to prevent the actions of third persons. ¶12 Special relationship as a basis for the liability of the defendant for the acts of a third person was also discussed in Wofford v. Eastern State Hospital, 1990 OK 77, 795 P.2d 516. The Wofford Court determined whether a hospital or a therapist had a duty to exercise reasonable care in the discharge of a mental patient for the benefit of persons injured by the released patient. The Court noted that the Restatement (Second) of Torts § 315 (1965) and a number of other courts recognize an exception to the common law rule that a person has no duty to prevent a third person from causing physical injury to another. Wofford, at ¶ 9, 795 P.2d at 518. Section 315 provides that a duty arises if “(a) a special relation exists between the actor and the third person which imposes a duty Vol. 81 — No. 3 — 1/30/2010
upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” ¶13 The Wofford Court recognized that the relationship between a psychotherapist and patient has been found to be a special relationship under the Restatement approach to duty, citing Tarasoff. The Court reasoned that in Oklahoma “courts have recognized that the existence of a duty depends on the relationship between the parties and the general risks involved in the common undertaking.” Wofford at ¶ 10, 795 P.2d at 519. That duty “is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Id. (Citations omitted.) The most important of those considerations in establishing the duty is the foreseeability of harm to the injured person. The Court held that: [A] psychiatrist has a duty to exercise reasonable professional care in the discharge of a mental patient. . . . This duty arises only when in accordance with the standards of his profession the therapist knows or should know that his patient’s dangerous propensities present an unreasonable risk of harm to others. The duty extends to such persons as are foreseeably endangered by the patient’s release. Id. at ¶ 17, 795 P.2d at 520. ¶14 This Court, in a subsequent decision, said Wofford holds it is a question for the court whether a person stands in a special relationship to another such that the law will impose on that person an obligation of reasonable conduct for the benefit of the other. Cooper v. Millwood Independent School District No. 37, 1994 OK CIV APP 114, 887 P.2d 1370. In Cooper, this Court found that the relationship between a school bus driver and the student passengers is a special relationship under Oklahoma law, stating that the “students are effectively constrained while on the bus. Under these circumstances there is no way a student being attacked could escape the attack. Depending on the circumstances, where rowdy conditions are present on a school bus it could be foreseeable that one student might injure another.” Id. at ¶ 13, 887 P.2d at 1374. This Court also referenced Tarasoff, saying that in that case, the “California Supreme Court held that when the avoidance
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of foreseeable harm requires a defendant to control the conduct of another person, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim.” Id. at ¶ 19, n.5, 887 P.2d at 1375, n.5. (Emphasis in original.) ¶15 In 1997, the Oklahoma Supreme Court reiterated that while an individual would normally owe no duty of care to a third person for the acts of another, “every person is under a duty to exercise due care in using that which he/she controls so as not to injure another.” Lockhart v. Loosen, 1997 OK 103, ¶ 13, 943 P.2d 1074, 1080. (Footnote omitted.) “In order for a duty to arise,” however, “those persons bearing the duty’s onus must have knowledge that their acts or omissions involve danger to another.” Id. at n.26. (Citation omitted.) In reversing the trial court’s dismissal of the plaintiff’s petition, the Court said that such a duty could be found where a husband’s paramour, the defendant, had a venereal disease, infected the husband, who in turn infected his plaintiff wife, if the defendant knew or reasonably should have known she had the disease, if she copulated with the husband when she knew she was infectious, if she failed to warn the husband, and if she knew the husband was copulating with another and knew her identity. The Court said the reasonable foreseeable consequence of the defendant’s silence, of that breach of duty to the husband, could be the transmittal of the disease to the husband’s wife. If, on the other hand, the defendant “did not know or have reason to know of her contagion, her silence would not rise to the level of actionable negligence as a matter of law.” Lockhart, at ¶ 14, 942 P.2d at 1081. (Emphasis in original.) ¶16 A reading of these decisions reveals that Oklahoma recognizes the imposition of a duty on a person for the acts of a third person who injures another under circumstances where that person has a special responsibility toward the injured party, or where the person’s own affirmative act created an unreasonably high risk that harm would occur to the injured party. They also reveal that Oklahoma recognizes that such a person may have a duty to the injured party where a special relationship exists between that person and the third person either because that person has special knowledge about the third person and control over that third person; or that person has control over some matter relative to that third person; 232
or because of special circumstances that reasonably give notice to that person relative to a third person. Moreover, it is for the court to decide as a matter of law whether such a “special relationship” exists between the defendant and the injured party, or the defendant and a third person who inflicts harm on the injured party. In all of these cases,6 foreseeability of the harm to the injured party is critical. ¶17 Plaintiff does not argue that Williams owed a duty to C.S. because of some special relationship as between the two of them. In fact, an exchange of salutations on the two or three occasions they saw each other was specifically referred to by C.S. as the only contact the two ever had. No argument was made and no evidence was produced that showed Williams was asked to accept, or did accept, any supervisory or other control over C.S. No argument or evidence was produced to show that Plaintiff entrusted her son to Williams’ care. In fact, Plaintiff said she never met or spoke to Williams or knew if she would be present when her son stayed with Harris at his grandmother’s home. Nor does Plaintiff argue that Williams engaged in any “affirmative act” that created or exposed C.S. to a recognizable high degree of risk of harm through such misconduct, which a reasonable person would have taken into account. ¶18 Relying on Wofford, Plaintiff argues that Williams had a duty of due care toward C.S. for the harm caused by her adult grandson, Harris, to C.S. in her home because she knew or should have known that harm was reasonably foreseeable, absent intervention by Williams. Wofford, however, requires something more. The duty imposed in Wofford is one owed to a foreseeable victim by the actor because he or she knew or should have known of the dangerous propensities of the third person who actually inflicted the harm on the foreseeable victim. It is the relationship between the actor and the third person and the special knowledge the actor has about the third person that gives rise to the duty to the foreseeable victim. In discussing the Restatement approach, the Wofford Court implicitly based its reason for the imposition of this duty, in part, on the control the therapist has over the patient and the opportunity to exercise that control. Wofford, at ¶ 9, 795 P.2d at 518. In Wofford, the control the defendants had was in the release or non-release from the hospital of the patient who had known dangerous propensities.
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¶19 Oklahoma courts have not dealt specifically with a special relationship between a homeowner and another adult that might create a duty to control that adult’s conduct in the context of a sexual assault upon a minor in the home. Other courts have. Relying on Restatement (Second) of Torts § 315 (1965), the Kansas Supreme Court found a wife had no duty to warn a minor about the unknown and unexpected criminal act by her husband, who invited the minor into their home and sexually assaulted him. D.W. v. Bliss, 112 P.3d 232 (Kan. 2005). The Kansas Supreme Court discussed a number of cases involving sexual assault by a third person where a special relationship between or among the parties was the basis for imposing a duty.7 The Kansas court concluded that an actor (the wife) had no duty to control the conduct of a third person (the husband) to prevent that third person from causing harm to others (the minor) absent some special relationship between the actor and the third party or the actor and the injured party. Id. at 243. The court said that where it “has considered the duty to control, we have required a finding that the person charged with the duty actually have the ability to control the third person’s conduct.” Id. (Citations omitted.) The husband, as a cotenant of the marital home, “had an undivided right to possession and control of the property. [The wife] had no right to restrict [her husband] as co-owner, from inviting [the minor] on to the property.” Id. The court said, “[e]xtension of her ownership interest into responsibility for [the husband’s] criminal actions is unwarranted.” Id. at 243. ¶20 In Doe v. Goff, 716 N.E.2d 323 (Ill. App. 1999), the appellate court found that the defendant Boy Scouts owed no duty to protect a scout from sexual assault by an adult volunteer under a “special relationship” duty where the Boy Scouts could not reasonably foresee the adult’s propensity to commit sexual abuse. The adult was a pediatrician, had no criminal record, and had no known propensity to be a child molester. The court said that foreseeability “must be judged by what was apparent to the defendant at the time of the attack . . . not by what may appear through hind-sight.” Id. at 326. It must be “something that is objectively reasonable to expect, not merely what might conceivably occur.” Id. ¶21 The question, then, is whether Williams was in a special relationship with Harris such that a duty was imposed upon her to control Vol. 81 — No. 3 — 1/30/2010
his actions. We find no such relationship existed between Harris and Williams. ¶22 Unlike the wife in D.W. v. Bliss, Williams was the sole owner of the trailer home. Although Williams did not supervise Harris’ conduct, dictate with whom he could socialize, or specify whom he could bring to her home, Harris said he understood that she could throw him out of her home and would do so if he did not conform his conduct to that of an adult gentleman. Williams had complete access to the bedroom Harris occupied, which she often cleaned. Williams was at home on three occasions when C.S. was at her home with Harris, including the night C.S. was assaulted. On that night, Harris told Williams C.S. was spending the night, and he and C.S. went into Harris’ bedroom. ¶23 Although Williams had control over her house, like the circumstances in Doe v. Goff, Williams had no knowledge that Harris had the propensity to be a child molester. Plaintiff concedes that Williams had no knowledge about Harris’ propensity to sexually assault minors and had no knowledge that he had, in fact, done so. Harris had no criminal record prior to the assault on C.S. and no known incidents of any inappropriate behavior while growing up or while he served in the military. In fact, his military record showed numerous commendations, and he was issued an honorable discharge. He was gainfully employed. Williams had no particular knowledge that would make her cautious about Harris such that she could reasonably foresee harm by Harris to C.S. ¶24 As discussed in Wofford and Lockhart, the defendant has to have some knowledge about a threat of harm the third person may pose to another under the circumstances that gives rise to a duty to control the actions of that third person. The duty extends to such persons who are reasonably and foreseeably put in danger by the defendant’s act or omission as to the control of the third person’s conduct. As stated in Doe v. Goff, foreseeability requires that there be something objectively reasonable to expect, not simply what might conceivably occur. ¶25 In hind-sight, Williams’ failure to intervene, to even ask a question of C.S. or Harris about the presence of C.S. in her home, in Harris’ bedroom, may have created a risk which harmed C.S. Henry v. Merck, 877 F.2d at 1492. Absent a duty to C.S., however, she has no actionable liability for the intentional, criminal
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acts of her grandson, because on the evening of December 27, 2001, she had no reason to know he would engage in such conduct. She knew he kept swords in his room, and perhaps knew he kept a gun in his room. Williams might even have known about one other minor whom Harris brought to her home. These facts still gave Williams no objective reason to expect that Harris might be a child molester and a danger to C.S. ¶26 We, therefore, find that Williams did not stand in any special relationship with Harris that would impose a duty on her to warn C.S. about a possible harm Harris posed to C.S., nor did she have a duty to control the actions of Harris because of a threat he foreseeably posed to C.S. The trial court, therefore, erroneously denied Williams’ Motion for Judgment Notwithstanding the Verdict. CONCLUSION ¶27 For these reasons, we reverse that part of the May 27, 2007, Journal Entry of Judgment as against Williams, the August 3, 2007, order denying her Motion for Judgment Notwithstanding the Verdict, and the August 3, 2007, order granting costs and interest against Williams. We remand for entry of judgment in her favor. ¶28 REVERSED AND REMANDED WITH DIRECTIONS. WISEMAN, V.C.J., and GOODMAN, J., concur. 1. J.S. is the mother of C.S. Bradley Joe Harris was also a defendant whom Plaintiff sued for sexual assault and battery and intentional infliction of emotional distress and other claims. Williams claimed both C.S. and J.S. were contributorily negligent because of their failure to exercise ordinary care with respect to the relationship between Harris and C.S. The jury returned a general verdict in favor of Plaintiff and against both Defendants for damages in the amount of $75,000 and returned a verdict in favor of Williams on her counterclaim against J.S. for contributory negligence. The jury put Williams’ percentage of fault for the injuries to C.S. at 17.5 percent. Neither J.S. nor Harris appeal from the judgments against them. 2. Williams had timely filed Motions for Directed Verdict at the close of Plaintiff’s case in chief and after Defendants rested; both motions were denied. 3. Harris was convicted in 2002 for lewd molestation and forcible sodomy for the sexual assault against C.S. 4. During her deposition testimony, Williams said the only person she ever saw at her home with Harris was C.S. She was asked to look at a photograph and asked if she knew the boy in the picture. She was unable to identify the boy, though the picture was a picture of C.S. At trial, Williams again testified that the only person she ever saw at her house was C.S. The attorney for C.S. used the deposition testimony and her inability to identify C.S. in the photograph to allow the jury to infer that Williams knew of at least one other minor who was in Harris’ company while in her home. 5. The Oklahoma Supreme Court set out in Felty in a footnote various examples of situations in which the negligent operation of a vehicle by a thief was held to be, or was characterized as, foreseeable. See Richards v. Stanley, 271 P.2d 23 (Cal. 1954), in which the court suggested that leaving an automobile with the keys in the ignition in front of a school where it might reasonably be expected to be easy prey to
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irresponsible children, would make the negligent operation of the vehicle foreseeable; and Richardson v. Ham, 285 P.2d 269 (Cal. 1955), in which the defendant left a 26-ton bulldozer, unattended and unlocked, which was then stolen for a joy ride by three inebriates who were able to get the dozer underway, but who were unable to control it. Felty, at ¶ 18, n.1, 578 P.2d at 762, n.1. The Oklahoma Supreme Court also referenced Tarasoff as a special relationship case. 6. Joyce v. M & M Gas Co., 1983 OK 110, 672 P.2d 1172; Wofford v. Eastern State Hospital, 1990 OK 77, 795 P.2d 516; Lockhart v. Loosen, 1997 OK 103, 943 P.2d 1074; Felty v. City of Lawton, 1977 OK 109, 578 P.2d 757; Cooper v. Millwood Independent School District No. 37, 1994 OK CIV APP 114, 887 P.2d 1370. 7. For example, the parents of a four-year-old child, who was sexually abused by a ten-year-old neighbor, while playing at the home in which the neighbor lived with his mother and her boyfriend, sued the boyfriend, asserting claims for negligent failure to warn and negligent failure to control. Gritzner v. Michael R., 611 N.W.2d 906 (Wis. 2000). The Gritzner court found the boyfriend had a duty to warn the parents, when he invited the four-year-old to the home, about the risk of harm the ten-year-old posed where the boyfriend knew the child had molested young children in the past and knew the child had a propensity to molest young females. Id. at 919-20. The duty arose out of the special relationship/duty of a parent (or one in loco parentis) to control his or her child under the Restatement (Second) of Torts § 316. A duty has been found where the wife invited minors onto the property, in effect, procuring them for her husband, Pamela L. v. Farmer, 112 Cal. ApP.3d 206, 169 Cal. Rptr. 282 (1980); or where a grandmother failed to protect her grandchild from the known risk of sexual assault by the grandfather, Doe v. Franklin, 930 S.W.2d 921 (Tex. App. 1996); or where the wife had actual knowledge of her husband’s sexually abusive behavior, J.S. v. R.T.H., 155 N.J. 330, 714 A.2d 924 (1998).
2009 OK CIV APP 101 RAVEN RESOURCES, L.L.C., and DAVID A. STEWART and TERRY P. STEWART, Plaintiffs/Appellants, v. LEGACY BANK; R. STEPHEN CARMACK; SAMUEL CARMACK; LORIE CARMACK; DAN HAYNES; PATRICIA ROSS; KENNETH ROSS; RICHARD HORTON; JACQUELINE BRADSHAW; CONNIE FRAZIER; and JOHN DOES 1-10 and PERSONS UNKNOWN, Defendants/Appellees. Case No. 106,203. November 17, 2009 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE CAROLYN R. RICKS, TRIAL JUDGE AFFIRMED William B. Federman, FEDERMAN & SHERWOOD, Oklahoma City, Oklahoma, for Appellants Richard P. Propester, Joe E. Edwards, DAY, EDWARDS, PROPESTER & CHRISTENSEN, P.C., Oklahoma City, Oklahoma, for Appellees JOHN F. FISCHER, JUDGE: ¶1 Raven Resources L.L.C., its owner and managing member David A. Stewart, and his wife Terry Stewart (collectively, Raven) appeal the district court’s August 1, 2008, order dismissing certain of Raven’s claims against Leg-
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acy Bank (Bank).1 The appeal was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(a)(2), 12 O.S.2001 and Supp. 2003, ch. 15, app. 1. BACKGROUND ¶2 Raven is an oil and gas company that maintained an account with Bank. Raven alleged that its ex-employee Michael Lee forged various documents, executed unauthorized checks on Raven’s account, conducted unauthorized transactions through the Bank, and embezzled millions of dollars of Raven’s money for his own use.2 Raven alleged Lee was able to do so only because of the negligence, fraud, or collusion of Bank and its employees. ¶3 Raven’s petition describes the acts of Bank and its employees acting in concert with Lee that resulted in the loss for which it seeks to recover. Raven asserts thirteen “Claims for Relief” in support of its claim against Bank: (1) breach of contract; (2) facilitating forgery; (3) gross negligence; (4) facilitating fraud; (5) aiding and abetting conversion; (6) civil conspiracy; (7) violation of Uniform Commercial Code, 12A O.S.2001 § 4-401; (8) engaging in unsafe and unsound banking practices; (9) breach of implied covenant of good faith and fair dealing; (10) the need for a declaratory judgment of rights and obligations of certain promissory notes and mortgages; (11) the need for a declaratory judgment of rights and obligations regarding a certain revolving credit agreement; (12) violation of Oklahoma Banking Code, 6 O.S.2001 §§ 712713; and (13) facilitating money laundering.3 Raven seeks actual and punitive damages, a declaration that certain debt instruments be declared void and statutory penalties. ¶4 Bank filed a motion to dismiss Raven’s petition arguing various grounds. On August 1, 2008, the district court denied Bank’s motion to dismiss the 2nd, 4th, 7th, 10th, and 11th grounds for recovery. The court granted Bank’s motion with respect to Raven’s 1st, 3rd, 5th, 6th, 9th, and 12th grounds for recovery finding that they were based on fraud and had not been pled with the required particularity but granted Raven leave to amend. The merits of this appeal concern the district court’s dismissal of Raven’s 8th (unsafe and unsound banking practices) and 13th (facilitating money laundering) grounds for recovery (collectively, the Banking Claims), on the basis that no private right of action existed to enforce these claims. The district court dismissed these claims withVol. 81 — No. 3 — 1/30/2010
out leave to amend presumably because it concluded that “the defect [could not] be remedied.” 12 O.S. Supp. 2004 § 2012(G). Consequently, the dismissal of the Banking Claims finally determined Bank’s liability as to those grounds for recovery. ¶5 On August 14, 2008, prior to the deadline for amendment, Raven voluntarily dismissed without prejudice all grounds for recovery still pending in the district court, and all grounds for recovery the court had previously dismissed with leave to amend. Because Raven did not amend claims 1, 3, 5, 6, 9 and 12 within the time allowed by the district court, they would have been deemed to be dismissed with prejudice pursuant to section 2012. However, sub-paragraph (G) of section 2012 states that “within the time allowed by the court for filing an amended pleading, a plaintiff may voluntarily dismiss the action without prejudice.” Consequently, Raven’s voluntary dismissal before the amendment period expired avoided dismissal with prejudice of claims 1,3,5,6,9 and 12. Raven appeals the order dismissing its Banking Claims. STANDARD OF REVIEW ¶6 In every appeal, an appellate court is required to inquire into its jurisdiction. Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 25, 139 P.3d 873, 880; Cray v. Deloitte Haskins & Sells, 1996 OK 102, ¶ 7, 925 P.2d 60, 62. “Determination of jurisdiction is a question of law.” State ex rel. Cartwright v. Okla. Ordnance Works Auth., 1980 OK 94, ¶ 4, 613 P.2d 476, 479. Further, appellate review of a motion to dismiss involves a de novo consideration as to whether the petition is legally sufficient. Indiana Nat’l Bank v. Dep’t of Human Servs., 1994 OK 98, ¶ 2, 880 P.2d 371, 375. Finally, a district court’s construction of statutes also presents questions of law that are reviewed de novo. State ex rel. Okla. State Dep’t of Health v. Robertson, 2006 OK 99, ¶ 5, 152 P.3d 875, 877; Fulsom v. Fulsom, 2003 OK 96, ¶ 2, 81 P.3d 652, 654. DISCUSSION ¶7 The initial issue raised in this appeal is whether the district court’s order dismissing Raven’s Banking Claims, clearly interlocutory at the time it was entered, became appealable as a result of Raven’s voluntary dismissal of all other claims. Bank’s response to Raven’s petition in error seeks dismissal of the appeal for lack of an appealable order.4 Bank argues that Raven’s subsequent dismissal of all remaining
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claims cannot convert the interlocutory dismissal of the Banking Claims into an appealable order, and that order is not appealable unless certified by the district court for immediate appeal pursuant to 12 O.S.2001 § 994.5 The district court did not certify its order dismissing the Banking Claims for immediate appeal, and the record does not show that Raven requested such certification. Bank further contends that, if Raven’s appeal is not dismissed, the district court’s dismissal of the Banking Claims should be affirmed. I. Jurisdiction ¶8 Bank’s jurisdictional challenge raises an issue not previously decided in Oklahoma: whether a party may appeal an order that is not appealable when entered but becomes potentially appealable as a result of subsequent voluntary action by that party. This Court’s jurisdiction is limited to appeals from judgments, 12 O.S.2001 § 952(a), final orders, 12 O.S.2001 § 952(b)(1), orders regarding provisional remedies, 12 O.S.2001 § 952(b)(2), certain interlocutory orders, 12 O.S.2001 § 993, interlocutory orders certified for appeal by the trial court, 12 O.S.2001 § 952(b)(3), and interlocutory orders in multi-party multi-claim cases certified for immediate appeal, 12 O.S.2001 § 994.6 When the district court’s August 1, 2008, order dismissing Raven’s Banking Claims was entered, it was not appealable because it satisfied none of these statutory requirements. Bank argues that Raven cannot make that order appealable by dismissing all of its remaining grounds for recovery. A. Oklahoma Law ¶9 As an initial matter, we note that Oklahoma jurisprudence has a long history of recognizing a plaintiff’s right to control his or her own case. As early as 1932, the Oklahoma Supreme Court held: If a litigant, by reason of the ruling of the trial court during the progress of the trial, feels that he has been prejudiced by such ruling, and by reason thereof has not been permitted to fully and fairly present his theory of the issues to the court or jury, he should have the unqualified right, such as was granted to him under the common law, to control his action and to dismiss without prejudice before the question is finally submitted to the court or jury. 236
Carpenter v. Renner, 1932 OK 487, ¶ 8, 12 P.2d 688, 689. See also Hubbard v. Hubbard, 1942 OK 210, 126 P.2d 524; Butler v. Prokop, 1958 OK 1, 321 P.2d 400. This common law principle has been codified, at least in part. Title 12 O.S. Supp. 2004 § 683 provides that a plaintiff may dismiss without prejudice at anytime before final submission of the case to the judge or jury, and 12 O.S. Supp. 2004 § 684 provides that a plaintiff may dismiss prior to trial on payment of costs or at anytime with the consent of all other parties. Bank’s argument that Raven cannot appeal without the district court’s certification pursuant to section 994 must overcome Raven’s common law and statutory right to dismiss. ¶10 As previously stated, the issue raised by Bank’s motion to dismiss has not been decided. Patmon v. Block, 1993 OK 53, 851 P.2d 539, however, decided an almost identical issue. Patmon sued two physicians, Drs. Block and Rahhal, for malpractice resulting from an abdominal surgery. The district court granted summary judgment in favor of Dr. Block on March 26, 1992. When that judgment was entered, 12 O.S.1991 § 1006, precluded an appeal without trial court certification of the need for immediate appellate review. The judgment in favor of Dr. Block was not so certified. On April 7, 1992, Patmon’s remaining claim against Dr. Rahhal was dismissed without prejudice for failure to prosecute. Within thirty days from that dismissal, Patmon appealed the judgment in favor of Dr. Block. ¶11 On appeal, Dr. Block argued that the district court’s dismissal of Patmon’s remaining claim without prejudice did not render the prior judgment a final order because Patmon could still file a new action against Dr. Rahhal. Patmon at ¶ 8, 851 P.2d at 543. The Supreme Court rejected this argument holding that “an order of dismissal that terminates an action without prejudice is appealable even though a new suit might later be brought on the same claim against the same defendants.” Id. at ¶ 9, 851 P.3d at 543.7 The order dismissing Dr. Rahhal entered subsequent to the order appealed “mark[ed] the disposition of all claims and the settlement of all issues among the parties.” Id. at ¶7, 851 P.2d 853. It left only the order granting Dr. Block’s motion for summary judgment.8 The Supreme Court has jurisdiction to “reverse, vacate or modify judgments of the district court.” 12 O.S.2001 § 952(a). “Appeal time for review of the court’s summary judgment in Dr.
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Block’s favor began to run with the filing of the trial court’s April 7 dismissal order. That order was the first appealable event in Patmon’s action after § 1006 became effective as law.” Patmon at ¶ 9, 851 P.2d at 544 (emphasis in original). Consequently, the dismissal of Patmon’s last remaining claim converted the previously unappealable judgment in favor of Dr. Block into an appealable order. ¶12 Patmon was recently cited with approval in Southwestern Bell Yellow Pages, Inc. v. Barr, 2008 OK 46, 187 P.3d 718, for the proposition that the time to appeal begins to run from an appealable order or event even though the order under review was not appealable at the time it was entered.9 Unlike the majority of the federal circuits discussed in section I.B. of this Opinion, it is clear from Patmon that Oklahoma does not consider the potential re-filing of a dismissed claim to be a bar to appellate review.10 The only procedural difference between this case and Patmon is that the dismissal that rendered the previous interlocutory order appealable was filed by Raven rather than by the district court. We find this distinction immaterial. ¶13 Consequently, based on the analysis in Patmon, we find that the voluntary dismissal of Raven’s non-Banking Claims converted the order granting Bank’s motion to dismiss the Banking Claims into a final order. A final order is one that affects “a substantial right in an action, when such order, in effect, determines the action and prevents a judgment . . . .” 12 O.S.2001 § 953. After Raven’s dismissal of its non-Banking Claims, the order granting Bank’s motion to dismiss conclusively determined Bank’s liability on the Banking Claims, left Raven without any relief and prevented Raven from proceeding further. See Hammonds v. Osteopathic Hosp. Founders Ass’n, 1996 OK 54, § 3, 917 P.2d 6, 7 (defining “final order” in those terms).11 As in Patmon, Raven’s voluntary dismissal of its non-Banking Claims was the first appealable event in this case. Contrary to Bank’s argument, “an appeal need not always be the appellant’s sole remedial avenue of relief to make a prejudgment order appealable as final under ¶ 953.” Gilliland v. Chronic Pain Assocs., Inc., 1995 OK 94, ¶ 7, 904 P.2d 73, 76. ¶14 Further, despite Bank’s contention that Raven cannot appeal without the district court’s permission, certification of the order granting Bank’s motion to dismiss pursuant to § 994 may not have been available. Although we do not decide the issue, all of Raven’s grounds for Vol. 81 — No. 3 — 1/30/2010
recovery appear to based on the same transactions or occurrences as the Banking Claims, i.e., Lee’s embezzlement of Raven’s funds held by Bank. If that is true, the district court could not have certified its dismissal of the Banking Claims for immediate appeal. A judgment is unsuitable for § 994 certification when the court disposes of but a portion of the contest by leaving unresolved any issue on the merits of the partly-decided claim. Nor can the trial court advance an order if the unadjudicated claim(s) arise from the same transaction or occurrence as the adjudicated claim — ie. the trial court must have adjudicated some legally severable claim which was completely decided. Oklahoma City Urban Renewal Auth. v. City of Oklahoma City, 2005 OK 2, ¶ 11, 110 P.3d 550, 557. In contrast, Patmon’s negligent hiring claim against the hospital was separate from her medical negligence claim against the doctors rather than an alternative theory of liability for recovery of the same damages from a single wrong. “They are clearly distinct causes of action founded on separate consecutive rather than concurring transactions or wrongs.” Patmon, 1993 OK 53 at ¶ 9, 851 P.2d at 544 (emphasis in original). ¶15 Even if the order dismissing the Banking Claims was capable of certification, Bank’s construction of section 994 as Raven’s only avenue of appeal leads to a procedural Wewoka Switch12 for which we find no authority. If the order is one described in section 994, by definition, it is not appealable absent that certification. Barr, 2008 OK 46, at ¶ 0, 187 P.3d at 718. It remains “subject to revision any time before all of the claims of all of the parties have been finally adjudicated.” Oklahoma City Urban Renewal Auth., 2005 OK 2 at ¶ 10, 110 P.3d at 557. The decision to certify an order for immediate appeal pursuant to section 994 requires an exercise of the district court’s discretion and the refusal to certify cannot be appealed. See Okla. Sup. Ct. R. 1.50, 12 O.S.2001 ch. 15, app. 1 (interlocutory order not appealable by right may only be reviewed if certified for appeal by the trial judge). Therefore, without certification, Raven’s only option, in Bank’s view, would be to proceed to judgment on its nonBanking Claims. Claim and issue preclusion would prevent Raven from dismissing its remaining claims and re-filing a new action that included the Banking Claims. “[O]nce a court has decided an issue of fact or law neces-
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sary to its judgment, that issue may not be relitigated between the same parties or their privies in a suit upon a different cause of action.” Panama Processes, S.A. v. Cities Serv. Co., 1990 OK 66, n.27, 796 P.2d 276, 283 n.27. See also Nat’l Diversified Bus. Servs., Inc., v. Corp. Fin. Opportunities, Inc., 1997 OK 36, 946 P.2d 662 (holding that after determination of the forum selection clause issue and voluntary dismissal by the plaintiff, that issue cannot be relitigated in subsequent suit). Further, claim preclusion would bar relitigation of issues that either were or could have been litigated in a prior action terminated on the merits. State ex rel. Moshe Tal v. City of Oklahoma City, 2002 OK 97, ¶ 20, 61 P.3d 234, 245.13 Consequently, Bank’s construction of section 994 would not only deprive Raven of its common law authority to “control [its] action,” and its statutory right to dismiss at this stage of the proceedings, but also foreclose Raven’s resort to the appellate jurisdiction of this Court established by art. VII § 4 of the Oklahoma Constitution. B. Federal Law ¶16 Nonetheless, Bank’s argument is not without support. Bank acknowledges that the jurisdictional issue has not been previously decided in Oklahoma and relies on federal cases in support of its contention that the August 1, 2008 order is not subject to appellate review. Bank correctly observes that the basic requirements for an appealable order in multiple party, multiple claim cases found in 12 O.S.2001 § 994(A) were “modeled verbatim” from Federal Rule of Civil Procedure 54(B). Brandt v. Joseph F. Gordon Architect, Inc., 1999 OK 67, n.1, 998 P.2d 587, 589 n.1. Bank’s argument is premised on the established principle that if a state statute is patterned after a federal statute, federal jurisprudence may be instructive when interpreting the Oklahoma statute. See Barnett v. Simmons, 2008 OK 100, ¶ 16, 197 P.3d 12, 18; Payne v. DeWitt, 1999 OK 93, ¶¶ 8-9, 995 P.2d 1088, 1092-93. ¶17 A review of federal cases reveals two distinct views on whether an uncertified interlocutory order may be appealed after a dismissal without prejudice of all remaining claims and parties. The majority of the federal circuits follow the rule announced in Ryan v. Occidental Petroleum Corp., 577 F.2d 298 (5th Cir. 1978). Those courts hold that voluntary dismissal without prejudice does not dispose of a claim because the dismissing party remains free to file another complaint. Therefore, interlocutory orders remain non-final after dismissal.14 238
¶18 The Sixth and Eighth Circuits find appellate jurisdiction to review uncertified interlocutory orders in similar circumstances. See Hope v. Klabal, 457 F.3d 784, 790 (8th Cir. 2006); Hicks v. NLO, Inc., 825 F.2d 118, 120 (6th Cir. 1987). The Eight Circuit Hope decision relied in part on United States v. Wallace and Tiernan Co., 336 U.S. 793, 69 S. Ct. 824 (1949). In Wallace, the Supreme Court analyzed its jurisdiction pursuant to 15 U.S.C. § 29 to hear an appeal after the government dismissed a case without prejudice, then appealed an earlier unfavorable evidentiary ruling. Section 29 requires a “final judgment” before appellate review. The Wallace court held: That the dismissal was without prejudice to filing another suit does not make the cause unappealable, for denial of relief and dismissal of the case ended this suit so far as the District Court was concerned. The motion to dismiss the appeal is overruled. Id. at 794 n.1 (citations omitted). Wallace holds that a voluntary dismissal without prejudice of all remaining issues may convert a prior interlocutory order into an appealable order. ¶19 There is, therefore, no consensus federal view on this issue. However, the minority view is supported by United States Supreme Court precedent. Further, the minority view is consistent with Oklahoma precedent and Oklahoma’s long-standing recognition of a plaintiff’s common law right to control the action. Consequently, we find Bank’s argument based on federal law unpersuasive. ¶20 Although Carpenter, 1932 OK 487, 12 P.2d 68, and the common law cases following that decision were decided prior to the enactment of the Oklahoma Pleading Code and 12 O.S.2001 § 994, Patmon’s holding that a subsequent event may render a previously unreviewable decision appealable was not. The fact that Raven’s dismissal rather than court dismissal constituted the appealable event does not change the analysis employed in Patmon. Consequently, this Court has jurisdiction of Raven’s appeal, and Bank’s request for dismissal is denied. II. Plaintiff’s Banking Claims A. Unsafe Banking Practices ¶21 Raven’s petition asserted a claim for “unsafe or unsound banking practices” pursuant to 6 O.S.2001 § 204. Sub-paragraph (A)(10) of that statute gives the State Banking Commissioner power to order banks to “cease and
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desist from engaging in any unsafe or unsound banking or trust practice.” Sub-section (A)(11) gives the Commissioner power to require that banks “pay civil money penalties under the same circumstances and conditions applicable to imposition of civil money penalties by the primary federal bank regulatory agency of the bank.” ¶22 Oklahoma has adopted a modified version of the test set forth in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080 (1975), to determine whether a legislative enactment authorizes a private cause of action. Holbert v. Echeverria, 1987 OK 99, ¶¶ 7-8, 744 P.2d 960, 963.15 The test states that a cause of action can be inferred from a public-law statute only if: (1) the plaintiff is one of the class for whose special benefit the statute was enacted; (2) there is some indication of legislative intent, explicit or implicit, suggesting that the legislature wanted to create a private remedy; and (3) implying a remedy for the plaintiff would be consistent with the underlying purposes of the legislative scheme. Id. The class for whose benefit the statute was enacted should be given a narrow construction. Walker v. Chouteau Lime Co., Inc., 1993 OK 35, ¶ 3, 849 P.2d 1085, 1086. ¶23 With respect to Raven’s claim, section 204 does not provide a benefit to any class of persons more limited than the entire public at large. The mere state of being “especially harmed” as the result of a statute’s violation does not make one a member of a special class the act might seek to protect. Holbert, 1987 OK 99 at ¶ 9, 744 P.2d at 963. To adopt a broad construction for establishing a class would render the first factor of Cort virtually meaningless. Id. When a statute is created for the benefit of the public at large, no special class is created simply because a remedy for injured persons is fashioned. Id. ¶24 Even if we assume that Raven can satisfy the first Cort factor, it cannot satisfy the second. Section 204 contains no explicit private remedy, and its provisions imply the opposite. The Legislature authorized the Banking Commissioner to issue cease and desist orders in specialized circumstances within a regulated industry, and to impose regulatory penalties consistent with the federal bank regulation scheme. We find no indication that the Legislature intended to create a private right to enjoin unsound banking practices or intended parallel private enforcement of the statute. Vol. 81 — No. 3 — 1/30/2010
¶25 Finally, even though the Banking Commissioner is granted the power to impose regulatory penalties, implying an intent to create private tort damages for the same acts is inconsistent with the underlying purposes of the legislative scheme.16 Raven has not demonstrated any compatibility between the civil penalties the Banking Commissioner is authorized to impose and the damages it seeks to recover. We find that 6 O.S.2001 § 204 does not provide a private cause of action or remedy based on “unsound banking practices.” B. Money Laundering ¶26 Raven’s petition also asserted a claim for money laundering against Bank. Money laundering is a violation of federal criminal law. See 18 U.S.C. §§ 1956-1957. A private right of action pursuant to a federal criminal statute is rarely implied. Chrysler Corp. v. Brown, 441 U.S. 281, 316, 99 S. Ct. 1705, 1725 (1979). Where a private right of action has been implied, “there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone.” Id. (quoting Cort, 422 U.S. at 79, 95 S. Ct. at 2088). The Cort test is applicable in analyzing whether a private cause of action is created by a federal statute. Id. ¶27 Analyzing 18 U.S.C. §§ 1956-1957 pursuant to the Cort test, it is evident the statutes do not provide a benefit to any class of persons more limited than the entire public at large, and we find no discernible congressional intent in the statutes, either explicit or implicit, to create a private right of action for money laundering.17 CONCLUSION ¶28 Neither 6 O.S.2001 § 204 nor 18 U.S.C. §§ 1956-1957 provide a private right of action that would support Raven’s Banking Claims based on alleged unsound banking practice or money laundering. Therefore we affirm the decision of the district court dismissing those claims. ¶29 AFFIRMED. GOODMAN, P.J., and WISEMAN, J., concur. 1. The petition also named Bank’s board of directors, officers, and other employees as individual defendants. 2. Lee pled guilty to federal charges of fraud and money laundering in March 2008. 3. Although the form of relief differs in some respects, the amount of actual damage Raven seeks is the same, the money embezzled by Lee. Further, Raven’s right to recover appears to arise from the same transactions and occurrences by which Lee embezzled money from Raven’s accounts at Bank. Because the factual record was not developed, we are unable to determine whether Raven’s petition asserts thirteen separate statements of its claims, that is, thirteen separate theories of liability in support of one claim for relief against Bank or multiple claims for relief. See 12 O.S. Supp. 2004 § 2012(E)(2). See also Rogers v. Meiser, 2003 OK 6,
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n.2, 68 P.3d 967, 969 n.2 (italics in original; footnotes omitted) (“The order granting defendants’ motion to dismiss uses the phrase ‘causes of action’ rather than ‘theory or theories of liability.’ ‘Only a single cause of action can be predicated on the same set of facts, but different remedies and theories of liability may be pressed in support of each claim alleged.’”); Fleet v. Sanguine, Ltd., 1993 OK 76, n.48, 854 P.2d 892, 901 n.48. (“When a claim for damages arises from one occurrence or transaction, it affords the plaintiff but a single cause of action.”). However, we need not decide that issue. This Opinion is confined to the district court’s disposition of Bank’s motion to dismiss concerning what Raven describes as its 8th and 13th “Claims for Relief.” 4. The Supreme Court deferred disposition of Bank’s jurisdictional argument to the decisional stage of this appeal. 5. Section 994(A) provides: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment, decree, or final order as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of a final judgment, decree, or final order. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the final judgment, decree, or final order adjudicating all the claims and the rights and liabilities of all the parties is filed with the court clerk. 6. Specific statutes may also confer appellate jurisdiction. See e.g., 58 O.S.2001 § 721, (authorizing appeal from certain orders in probate proceedings). None of those statutes is applicable in this case. 7. The United States Supreme Court reached the same conclusion in United States v. Wallace and Tiernan Co., discussed in paragraph 18 of this Opinion. 8. Patmon also sued the hospital for negligent hiring and credentialing. The district court granted the hospital’s motion for summary judgment prior to the enactment of 12 O.S.1991 § 1006. The law in effect when that judgment was entered required appeal within thirty days. Consequently, Patmon’s attempt to include the hospital judgment in her appeal of the Block judgment more than four years after judgment for the hospital was entered was dismissed as untimely filed. 9. In Barr, the Court held that an order dismissing the defendant/ appellant’s third-party claim “completely adjudicat[ed] a legally severable claim,” and therefore could have been certified for immediate appeal pursuant to § 994. The dismissal order was not certified and instead the appellant moved for reconsideration. That motion was denied but the order denying reconsideration was certified pursuant to § 994. The Court refused to hear the appeal of both orders because the petition in error was filed more than thirty days after the appealable event - the certification order — was filed. 10. See also Martin v. Johnson, 1998 OK 127, ¶ 17, 975 P.2d 889, 893. 11. Raven’s voluntary dismissal is distinguishable from the plaintiff’s action in City of Lawton v. Int’l Union of Police Ass’n, 2002 OK 1, 41 P.3d 371. In that case, the City appealed from an order granting summary judgment as to liability but reserving the issue of damages. The Supreme Court dismissed the appeal because it was not taken from an appealable order. The Court also held that the City failed in its attempt to cure this defect by filing a stipulation that no issues remained after its petition for certiorari was filed because the stipulation had not been tendered to the trial court and was not made until after the order appealed was entered. “An appellate court is confined to that record which was before the nisi prius court at the time of its decision on review.” Id. at ¶ 7, 41 P.3d at 375. In this case, all of the action taken by Raven necessary to make the dismissal of the Banking Claims appealable was done in the district court prior to the filing of its petition in error. 12. The term “Wewoka Switch” describes an unreconcilable conundrum and is derived from the description of missing goods shipped by rail during the 1920s oil boom as probably being caught in the railroad switching area located in Wewoka, Oklahoma, i.e., the Wewoka Switch. See King v. King, 2005 OK 4, ¶ 20, 107 P.3d 570, 579. 13. Just as we do not decide whether Raven’s petition contained one claim for relief or more than one claim for relief, we do not decide whether Raven may refile any of its voluntarily dismissed grounds for recovery based on our disposition of this appeal. 14. See Chappelle v. Beacon Commc’ns Corp., 84 F.3d 652, 654 (2nd Cir. 1996); Horwitz v. Alloy Automotive Co., 957 F.2d 1431, 1435-36 (7th Cir. 1992); Concha v. London, 62 F.3d 1493, 1506-07 (9th Cir.1995); Heimann v. Steed, 133 F.3d 767, 769 (10th Cir. 1998); State Treasurer of Michigan v. Barry, 168 F.3d 8 (11th Cir. 1999). Many of the same courts allow appeal
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when the dismissal is with prejudice, and no parties or issues remain after the dismissal. 15. Although Holbert’s holding has been superseded by a change in the applicable statute, see Walls v. Am. Tobacco Co., 2000 OK 66, 11 P.3d 626, the modified Cort test is still employed for determining the existence of a private cause of action. See Nichols Hills Physical Therapy v. Guthrie, 1995 OK CIV APP 97, 900 P.2d 1024. 16. Even in cases where a commission has the power to order monetary sanctions or refunds to an affected customer, this does not necessarily translate into a private right to independently seek the same remedy. See Jennings v. Globe Life & Acc. Ins. Co. of Okla., 1996 OK 85, ¶ 13, 922 P.2d 622, 626 (right of insurance commissioner to compel an insurer to refund consumer credit insurance overcharges did not imply a private right of action). 17. A number of federal district courts have reached the same conclusion. See Dubai Islamic Bank v. Citibank, N.A., 126 F.Supp.2d 659, 668 (S.D.N.Y. 2000) (examination of [the Cort] factors makes clear that 18 U.S.C. § 1956 does not give rise to a private right of action); Pacheco v. Martinez, 515 F.Supp.2d 773, 787 (S.D.Tex. 2007) (federal courts have not recognized a private cause of action for the money laundering statute); Simmons v. Simmons, 2008 WL 4663157, 2 (D.S.C. 2008) (holding that Plaintiff’s attempts to bring action under either the federal mail fraud or money laundering statutes, his claim must fail); Thompson v. Kramer, 1994 WL 725953 at *15 (E.D.Pa. 1994) (“These statutes provide by their plain language for criminal penalties but not for private causes of action ....”).
2009 OK CIV APP 104 JACK HOPKINS, Plaintiff/Appellant, v. WILLIE WEST, Defendant/Appellee. Case No. 105,428. October 29, 2009 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE DAMAN H. CANTRELL, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Stephen J. Modovsky, Kameran R. Ritzhaupt, Sidney A. Martin II, Lori K. Rogers, MODOVSKY LAW OFFICE, P.C., Tulsa, Oklahoma, for Plaintiff/Appellant Roger R. Williams, Tulsa, Oklahoma, for Defendant/Appellee JANE P. WISEMAN, VICE CHIEF JUDGE: ¶1 Jack Hopkins (Hopkins) appeals from orders of the trial court sustaining Willie West’s (West) demurrer and overruling Hopkins’ motion for new trial. The issues on appeal are whether the trial court (1) erred in sustaining the demurrer, or (2) abused its discretion when it overruled the motion for new trial. After reviewing the record on appeal and applicable law, we find that the trial court erred in sustaining the demurrer and denying the motion for new trial. We reverse and remand to the trial court to allow Hopkins a new trial on the merits of his replevin claim.
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FACTS AND PROCEDURAL BACKGROUND ¶2 Hopkins filed a lawsuit alleging he is engaged in the jewelry business, he dated West from June 1, 2004, to August 31, 2004, and during that time, he loaned West various pieces of jewelry for her personal use that were valued at more than $10,000. Hopkins claims that West is wrongfully in possession of the jewelry and that the jewelry is “lawfully and rightfully” his property. Hopkins requested judgment against West and immediate possession and delivery of the jewelry. ¶3 In her answer, West claims that she dated Hopkins from June 2004 through November 2004. She claims, however, that the items of jewelry were gifts from Hopkins to her, not loans. ¶4 In his amended petition, Hopkins realleged the facts in his original petition and additionally stated that he “does not have an actual cash value of each piece of jewelry, for he had acquired the jewelry but not yet had it appraised.” Hopkins attached an exhibit that included a description and approximate value for each piece of jewelry. In her answer, West denied the values placed on the jewelry by Hopkins and requested the court “to require strict proof thereof.” ¶5 A jury trial was held on September 5, 2007. Hopkins testified that he is a collector of jewelry and that he is able to buy stones and jewelry wholesale. He claimed that he started buying jewelry for himself and his former wife in 1989 or 1990. He divorced his wife in 2000. He testified that he bought jewelry with no intention of selling it because he was trying to stockpile the jewelry as an investment. He claimed that he dated a woman named Wunzie for nine months, that he let her wear some of his investment jewelry, and that he also gave her three pieces of jewelry as gifts. When they ended their relationship, Wunzie returned all of the jewelry except the three pieces Hopkins had given her as gifts. ¶6 Hopkins testified that he gave West four gifts: a framed picture, a heart-shaped piece of jewelry with rubies, an ankle bracelet, and a digital camera. Hopkins then testified about the jewelry he claimed that he let West wear. The following is a list of the jewelry with the amount Hopkins testified he paid for each piece: (1) gold Geneva watch ($1,200); (2) diamond cross ($800); (3) white gold chain ($200); Vol. 81 — No. 3 — 1/30/2010
(4) V-shaped diamond necklace (approximately $200); (5) ruby and diamond necklace ($350 or $250); (6) 20-inch chain ($250); (7) an emerald and diamond piece ($2,800); (8) 18-inch pinkwhite pearl necklace ($1,200); (9) black pearl bracelet ($400); (10) amethyst bracelet ($400); (11) emerald and diamond bracelet ($400 or $450); (12) garnet bracelet ($400); (13) diamond necklace ($1,600); (14) blue topaz bracelet ($300); (15) amethyst necklace ($400); (16) multi-stoned bracelet (no purchase price given); (17) blue topaz earrings ($150); (18) emerald earrings ($200); (19) earring “enhancers” ($250); (20) man-made emerald drop ($50); (21) blue sapphire earrings ($200); (22) ruby earrings ($300); (23) gold and garnet earrings ($200); (24) antique pendant ($650); (25) amethyst drop “pearl enhancer” ($250); (26) heart-shaped earrings ($50); (27) blue topaz ring ($350); (28) opal, diamond, and ruby ring ($650); (29) diamond and ruby antique ring ($1,000); (30) blue sapphire ring ($350); (31) emerald and diamond ring ($2,600); (32) white engagement ring (no purchase price given); (33) four-stone emerald ring ($800); (34) black pearl necklace ($500); (35) six-baguette stone diamond ($1,200); (36) onyx stud earrings ($50); (37) fire-opal studs ($50); (38) snake necklace ($350); (39) garnet studs ($50); (40) diamond earrings ($50); and (41) emerald and diamond bracelet ($1,200). ¶7 Hopkins testified that he allowed West to borrow all of these pieces of jewelry. He claimed that, when West would take a piece of jewelry out of its box to wear, she would occasionally place the jewelry back in its box “but most of the time she just put it in her — not her jewelry but her makeup bag, it was a little makeup bag that she had that she kept all of her jewelry in.” Hopkins stated it did not bother him that West did not put the jewelry back in the boxes because he trusted her. He testified it was his intention that if they should break up, West would return the jewelry because the items of jewelry “were not a gift.” Hopkins asked West to return the jewelry, but she refused to do so. He testified he gave West money to buy a condominium but did not ask for the money or the condominium back after they broke up because the money was a gift. ¶8 West testified Hopkins would ask her if she wanted to wear the jewelry, and after she wore it, she would offer it back to him. West claimed that Hopkins would tell her that he wanted her to wear the jewelry because he
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thought of her as his wife. She admitted, however, that he never told her to take the jewelry and do whatever she wanted with it. She did claim that he gave her all of the jewelry to keep forever. ¶9 At the close of Hopkins’ case in chief, West demurred to the evidence “on the grounds and for the reason that [Hopkins] has not stated a cause of action, in that [Hopkins] has not proven the value or — the value of the jewelry that he alleges was not given as gifts to Ms. West, and it would simply lead the jury up to pure speculation insofar as values are concerned” and that Hopkins “has not proven the ownership of the jewelry and the individual values.” The trial court found Hopkins needed “to produce an appraiser or some kind of appraisal for the value, the actual value of the property.” The trial court sustained West’s demurrer. In an order filed October 1, 2007, the trial court stated that it sustained the demurrer “on the grounds that [Hopkins] had failed to prove actual value of the individual items of personal property, citing the case of [Barton v. Warren, 2005 OK CIV APP 56, 120 P3.d 484.”] ¶10 Hopkins filed a motion for new trial, which the trial court overruled. Hopkins now seeks appellate review. STANDARD OF REVIEW ¶11 “A demurrer to the evidence should be overruled unless there is no competent evidence or reasonable inference from evidence tending to establish a cause of action.” In re D.R., 2001 OK CIV APP 21, ¶ 10, 20 P.3d 166, 168. “We review a trial court’s order denying a motion for new trial for error of a pure question of law or for an abuse of discretion which is arbitrary, clearly against the evidence, and manifestly unreasonable.” Robinson v. Oklahoma Nephrology Assocs., Inc., 2007 OK 2, ¶ 6, 154 P.3d 1250, 1253. ANALYSIS ¶12 We find that the trial court erred in sustaining the demurrer. The case cited by West and by the trial court in its decision lists the elements on which a plaintiff must present evidence to establish a prima facie case of replevin as follows: 1) a description of the property claimed; 2) that the plaintiff is the owner of the property and is entitled to its immediate possession; 3) that the property is wrongfully 242
detained by the defendant; 4) the actual value of the property; 5) that the property was not taken in execution on any order or judgment; and 6) that the prayer for relief requests that the court issue an order for the immediate delivery of the property. Barton v. Warren, 2005 OK CIV APP 56, ¶ 3, 120 P.3d 484, 485. The Barton Court cites and relies on 12 O.S. Supp. 2002 § 1571 as the source for these elements. Section 1571 states the following: A. The plaintiff in an action to recover the possession of specific personal property may claim the delivery of the property at the commencement of suit, as provided herein. 1. The petition must allege facts which show: a. a description of the property claimed, b. that the plaintiff is the owner of the property or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property, c. that the property is wrongfully detained by the defendant, d. the actual value of the property, provided that when several articles are claimed, the value of each shall be stated as nearly as practicable, e. that the property was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued under this chapter, or any other mesne or final process issued against said plaintiff; or, if taken in execution or on any order or judgment against the plaintiff, that it is exempt by law from being so taken, and f. the prayer for relief requests that the court issue an order for the immediate delivery of the property. ¶13 Subsection A is clearly permissive: it states that a plaintiff “may claim the delivery of the property at the commencement of suit.” Id. (emphasis added). Here, in neither his petition nor his amended petition did Hopkins seek an order directing West to deliver the jewelry at the commencement of the lawsuit.
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¶14 In Barton, the plaintiff sought the return of a 1957 Corvette or compensation for its value. The plaintiff filed a petition for the replevin of the car which he claimed he loaned to his cousin. Barton, 2005 OK CIV APP 56 at ¶¶ 3-4, 120 P.3d at 485. The plaintiff testified that he bought the car in 1971 for $1,000 or $1,200 and then spent approximately $8,000 to fix up the car and race it. Id. at ¶ 4, 120 P.3d at 485. A wreck in 1975 caused minor damage to the car, and the plaintiff did not fix the damage. Id. The plaintiff’s cousin asked him if he could take the car, fix it, and race it. Id. The cousin kept the car for 29 years, and the plaintiff admitted that the cousin could have spent $60,000 on the car during that time. Id. at ¶ 5, 120 P.3d at 485. After the cousin died, the plaintiff, who still held title to the car, asked for the car’s return, but the person in possession of the car refused to return it. Id. at ¶ 5, 120 P.3d at 486. The trial court granted the possessor’s demurrer. ¶15 The Court of Appeals reversed the trial court’s decision and held that plaintiff established a prima facie case of replevin. Id. at ¶ 2, 120 P.3d at 485. The Barton Court found that the trial court erred because it engaged in a weighing of the evidence on the issue of ownership, which is inappropriate when considering a demurrer to the evidence. Id. at ¶ 7, 120 P.3d at 486. ¶16 We note that the Barton decision lists “actual value of the property” as one of the elements of a prima facie case, and the evidence discussed in the opinion is that the plaintiff testified about how much he paid for the car, how much he put into fixing the car, and how much his cousin may have spent on the car. The Barton Court did not, as West would urge, use this as a basis for affirming the trial court’s sustention of the demurrer, by finding this evidence insufficient to establish the “actual value” element of a prima facie case. ¶17 In the present case, Hopkins testified about how much he paid for the items of jewelry he sought to recover. It is well-established in Oklahoma law that, as one claiming ownership, he could testify as to the value of his personal property. His testimony about how much he paid for the items, much like that in Barton, is sufficient to withstand a demurrer on this point and require submission of the issue of value to the jury, if recovery of certain items is not obtainable. We find no basis for holding that, as stated by the trial court here, the plaintiff must have an appraisal or present the testiVol. 81 — No. 3 — 1/30/2010
mony of an appraiser to establish an actual value of the jewelry. ¶18 It appears, however, that Hopkins was not seeking recovery of the jewelry’s value, but rather to the extent possible, recovery of the jewelry items themselves, which is the essence of a replevin claim. A cogent and succinct discussion of the nature of replevin is found in Brook v. James A. Cullimore & Co., 1967 OK 251, 436 P.2d 32, in which it is stated, “The primary object of statutory replevin is the recovery of specific personal property and not of money.” Id. at ¶ 4, 436 P.2d at 34. West admitted that she still had most of the jewelry in her possession. Title 12 O.S.2001 § 1580 provides, “In an action to recover the possession of personal property, judgment for the plaintiff may be for possession, or for the recovery of possession, or the value thereof in case a delivery cannot be had, and of damages for the detention.” ¶19 A demurrer should not have been sustained merely because Hopkins did not have an appraisal done of the property or have an appraiser testify at trial. Even though he presented evidence concerning the value of the items, he was not required to if he is seeking possession and West admits having possession of most of the items. In requesting relief in the form of replevin, Hopkins was clearly seeking to recover items he claimed to own which West admittedly still possessed. ¶20 In Hivick v. Oklahoma-Colorado Oil & Gas Co., 1923 OK 49, ¶ 0, 212 P. 420, 420 (syl. no.1 by the court), the Supreme Court of Oklahoma stated: A plaintiff in replevin should allege in his petition facts which show that he is the owner of the property in controversy, describing it, or that he has a special ownership or interest therein, stating the facts in relation thereto; that he is entitled to the immediate possession of the property, and that the defendant wrongfully detains the same from him. Hopkins clearly met these requirements in his petition and presented evidence establishing these facts at trial. Hopkins’ claims should have been submitted to the jury. ¶21 A statement of actual value in the petition, and the presentation of evidence of such value if requested by either party, is required if a party is seeking pre-judgment possession of property. These requirements clearly relate to,
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and are essential for, setting a replevin bond and, if circumstances dictate, a redelivery bond. 12 O.S.2001 §§ 1573, 1573.1, and 1577. Upon the trial of an action for replevin, if Hopkins seeks only possession which West admits she has, then no evidence of value is required. If possession of certain items cannot be had and he seeks to recover their value, then Hopkins must present evidence of their actual value based on his own or expert testimony. ¶22 Based on the foregoing, we find that the trial court erred as a matter of law when, citing the holding in Barton, it sustained the demurrer. It was an abuse of discretion not to grant Hopkins a new trial in order to correct its error in sustaining the demurrer. CONCLUSION ¶23 We hold that it was error to sustain a demurrer to the evidence and an abuse of discretion not to grant a new trial to correct this error. We reverse and remand this matter to the trial court to allow Hopkins a new trial on the merits of his claim for replevin1. ¶24 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. BARNES, P.J., and GOODMAN, J., concur. 1. Based on this result, West’s request for attorney fees and costs is denied.
2009 OK CIV APP 100 MILES L. MITZNER, Plaintiff/Appellant, v. HAROLD L. POAGE, MIRACLE PRODUCTION, INC., AND YDF, INC., Defendants/Appellees. Case No. 106,103. September 4, 2009 APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, OKLAHOMA HONORABLE ROBERT DAVIS, JUDGE AFFIRMED Miles. L. Mitzner, Edmond, Oklahoma, Pro se, Thomas J. Daniel IV, Kirk & Chaney, Oklahoma City, Oklahoma, for Appellees. Larry Joplin, Judge: ¶1 Plaintiff/Appellant Miles L. Mitzner (Plaintiff) seeks review of the trial court’s order granting attorney’s fees to Defendants/Appellees Harold L. Poage, Miracle Production, Inc., and YDF, Inc. (collectively, Defendants). In this 244
appeal, Plaintiff challenges the trial court’s award as affected by error of law. ¶2 Plaintiff and another served as courtappointed co-receivers in the contentious divorce case between Defendant Poage and his spouse.1 During the proceedings, Defendants paid some $162,000.00 in receiver’s fees. Defendant Poage and his spouse eventually settled in April 2006. ¶3 In July 2006, Plaintiff commenced the instant action to collect some $40,000.00 in additional receiver’s fees allegedly due and unpaid. Defendants answered, denied liability and asserted counter-claims to recover alleged overpayments of receiver’s fees. ¶4 The matter was eventually assigned to the trial judge who presided in the divorce case for a determination of reasonable receiver’s compensation and an adjudication of the competing claims for unpaid/overpaid fees. Over two days in March 2008, the parties presented evidence in support of their respective claims. On consideration of the evidence, the trial court found against Plaintiff on his claims, for Defendants on their counter-claims, and granted Defendants judgment for slightly more than $22,000.00. ¶5 Defendants then filed an application for an award of attorney’s fees and costs as prevailing parties under 12 O.S. §936. Plaintiff objected. The trial court held “this is a prevailing party fee case pursuant to 12 Okla. Stat. §936,” and granted Defendants judgment for $23,996.00 in attorney’s fees, as well as $2,220.00 in costs. (Emphasis original.) ¶6 Plaintiff appeals. Plaintiff argues that he was entitled to payment of receiver’s fees under 12 O.S. §619 “to be taxed as part of the costs in the” divorce case, and that §936 does not authorize an award of prevailing party attorney’s fees on his claim to recover the §619 “costs” of his compensation. See, Hough v. Hough, 2004 OK 45, 92 P.3d 695. Defendants respond, arguing that an award of receiver’s and attorney’s fees in a divorce case is based upon a “judicial balancing of the equities,” but that, in an action at law to collect unpaid fees for services rendered, the plain language of §936 clearly authorizes an award of attorney’s fees to the prevailing party in the collection action. Compare, e.g., King v. King, 2005 OK 4, ¶30, 107 P.3d 570, 581; with, Hamilton v. Telex Corp., 1978 OK 33, 576 P.2d 769, appeal after
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remand, Hamilton v. Telex Corp., 1981 OK 22, 625 P.2d 106. ¶7 “The issue of entitlement to an award of attorney fees presents a question of law.” See, e.g., Elmore v. Doenges Bros. Ford, Inc., 2001 OK CIV APP 27, ¶6, 21 P.3d 65, 69. (Citations omitted.) “Questions of law are subject to the de novo standard of review.” Id. “Under that standard, we claim plenary, independent and nondeferential authority to reexamine the trial court’s legal rulings.” Id. ¶8 Oklahoma law permits the trial of issues by a referee, appointed by the court, with consent of the parties, or “[w]here the trial of an issue of fact shall require the examination of mutual accounts, or when the account is on one side only, and it shall be made to appear to the court that it is necessary that the party on the other side should be examined as a witness to prove the account.” 12 O.S. §§612, 613. On the issue of a referee’s compensation, §619 of title 12 provides: The referees shall be allowed such compensation for their services as the court may deem just and proper, which shall be taxed as part of the costs in the case. See also, Rand v. Nash, 1935 OK 1086, ¶0(2), 51 P.2d 296.2 ¶9 In Hough, the trial court appointed a “special master” to “control . . . all matters relating to discovery, valuation and preservation of the [parties’] marital estate,” and directed payment of the special master’s fees and costs by husband. 2004 OK 45, ¶5, 92 P.3d at 698. The trial court subsequently held that husband’s obligation to pay the fees and costs of the special master constituted a matter of spousal support which survived husband’s bankruptcy. Hough, 2004 OK 45, ¶7, 92 P.3d at 699. ¶10 On husband’s appeal, the Oklahoma Supreme Court first held “the trial court properly exercised its judicial discretion in its determination that its order requiring Husband to pay special masters fees and costs from the marital estate and the order awarding a judicial lien to special master were intended to provide support to Wife and therefore, non-dischargeable in Husband’s bankruptcy.” Hough, 2004 OK 45, ¶11, 92 P.3d at 702. On the special master’s application for an award of appeal-related attorney’s fees, the Supreme Court then held: Vol. 81 — No. 3 — 1/30/2010
The general rule is “[a]ppeal-related attorney fees are recoverable if statutory authority exists for their award in the trial court.” This case presents a unique question concerning a non-party’s quest for appeal-related attorney’s fees. We are unaware of express statutory authority for the recovery of a special master’s attorney fees. However, [§619] . . . authori[zes] the award of “compensation [to referees] for their services as the court may deem just and proper, which shall be taxed as part of the costs in the case.” Further, §619 has been interpreted to apply to compensation of special masters. In this case, the trial court ordered Husband to pay the fees and costs of special master . . . pursuant to 12 O.S. §619. While we agree with the lower courts’ determination that special master was entitled to recover fees and costs as compensation for his services in accordance with §619, we disagree with the . . . characterization of §619 as statutory authority for an attorney fees award. Since §619 does not authorize an attorney fees award in the trial court, it follows that 12 O.S. §619 is likewise an improper basis for special master’s recovery of appeal-related attorney fees. Hough, 2004 OK 45, ¶14, 92 P.3d at 703. (Emphasis original.) ¶11 The Oklahoma Supreme Court thus held in Hough that §619 does not authorize an award of attorney’s fees to the prevailing party on a claim for unpaid compensation by a courtappointed special master in an ancillary proceeding before the appointing court in a divorce action. Unanswered in Hough, however, is the question with which we are presented here, and that is, whether, in an independent “civil action” commenced by a court-appointed receiver or special master “to recover [compensation] for . . . services rendered,” the prevailing party is entitled to an award of attorney’s fees under §936.3 Section 936 provides: In any civil action to recover for labor or services rendered, . . . , unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.
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The prevailing party in an action brought to recover unpaid compensation for professional services rendered is entitled to an award of attorney’s fees under §936. See, e.g., Pezold, Richey, Caruso and Barker v. Cherokee Nation Industries, Inc., 2002 OK CIV APP 43, ¶¶8-9, 52 P.3d 430, 432; Hamilton, 1978 OK 33, ¶6, 576 P.2d at 770. ¶12 Here, the court-appointed receiver commenced a separate civil action to recover unpaid receiver’s compensation for services rendered in the divorce action of Defendant Poage and spouse. Section 936 expressly directs an award of attorney’s fees to the prevailing party “[i]n any civil action to recover for labor or services rendered.” Defendants prevailed on the Plaintiff’s claim for unpaid receiver’s compensation, and on their counter-claim to recover overpayments of receiver’s compensation. The fact that, under §619, Plaintiff’s receiver’s compensation could be taxed as a item of costs in the divorce action of Defendant Poage and his spouse did not change the nature of Plaintiff’s claim to something other than a claim to recover for labor or services rendered. ¶13 We therefore hold the trial court did not err as a matter of law in awarding Defendants attorney’s fees as prevailing parties on Plaintiff’s claim for unpaid compensation for services rendered. The order of the trial court is AFFIRMED. MITCHELL, C.J., concurs. HANSEN, P.J., dissents: The receivers here were not parties in a “civil action.” An application for receivers’ fees is not a “civil action.” Receivers’ fees are taxed as costs and set by the judge. There can be no prevailing party on this issue. Section 936 does not apply here. Accordingly, I respectfully dissent. 1. Defendants Miracle Production, Inc., and YDF, Inc. were marital assets. 2. “A court of general jurisdiction has the inherent power to appoint an auditor in a case which involves the examination of complicated accounts, to award a reasonable fee to such auditor, and to tax such fee as costs in the case, even in the absence of an express statutory grant of such power.” 3. In his dissent to Hough, Justice Opala opined that §936 indeed authorized an award of prevailing party attorney’s fees to the special master who successfully recovered §619 “compensation.” 2004 OK 45, ¶¶4-5, 92 P.3d at 705 (Opala, V.C.J., concurring in part, dissenting in part).
2009 OK CIV APP 102 LUCINDY ANN MOSS, individually and as parent and next friend of ARTHUR JACKSON ADNEY, a minor, Plaintiff/ 246
Appellant, v. MICHAEL WITTMER and THELMA WITTMER, Defendants, v. OKLAHOMA HEALTH CARE AUTHORITY, Appellee. Case No. 106,407. October 29, 2009 APPEAL FROM THE DISTRICT COURT OF CREEK COUNTY, OKLAHOMA HON. DOUGLAS W. GOLDEN, TRIAL JUDGE REVERSED AND REMANDED WITH DIRECTIONS Tye H. Smith, Charles G. Smart, CARR & CARR, ATTORNEYS, Tulsa, Oklahoma, for Plaintiff/Appellant Ashley D. Williams, Lynn Rambo-Jones, Howard J. Pallott, Oklahoma City, Oklahoma, for Appellee DOUG GABBARD II, PRESIDING JUDGE: ¶1 Lucindy Ann Moss (Plaintiff) appeals an order enforcing a statutory lien in favor of the Oklahoma Health Care Authority (OHCA). We reverse and remand with directions. FACTS ¶2 In 1997, Plaintiff’s son, Arthur Jackson Adney (AJ), then one year old, was seriously injured when he was attacked by a pet monkey owned by Defendants, Michael and Thelma Wittmer. AJ recovered after extensive medical treatment, but was left with permanent impairment and disfigurement, primarily to one of his hands. Some of his medical bills were paid through Medicaid. OHCA is Oklahoma’s Medicaid agency. ¶3 Plaintiff did not seek compensation or file a claim against the Wittmers before the expiration of the two-year statute of limitations for negligence, now found at 12 O.S.2001 § 95. However, nine years later, in 2006, Plaintiff spoke to an attorney, learned that the Wittmers had a homeowners’ insurance policy that provided coverage, and began efforts to seek compensation for her son’s damages.1 ¶4 According to Plaintiff’s pleadings, her attorney advised the insurer that AJ had injuries in excess of $500,000, and, after extensive investigation, the Wittmers’ insurer agreed to pay its $100,000 policy limits. Ultimately, the parties signed a written settlement agreement, Plaintiff filed a friendly suit, and the parties sought the trial court’s approval of the settle-
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ment agreement.2 Prior to the court hearing on this agreement, the insurer advised OHCA of the settlement and OHCA asserted its intent to enforce its statutory lien against $16,737.25 of the settlement proceeds as reimbursement for Medicaid payments on AJ’s behalf. Although the trial court approved the settlement agreement, it ordered $16,737.25 of the proceeds be placed in trust, pending resolution of OHCA’s claim. ¶5 OHCA’s claim was heard by the same judge a few weeks later. OHCA asserted that what is now 63 O.S. Supp. 2008 § 5051.1 gave it a statutory lien in the amount of the Medicaid payment, which lien was enforceable against the proceeds recovered from the Wittmers by AJ “up to the amount of the damages for the total medical expenses . . . whether by judgment or by settlement or compromise.” Plaintiff asserted that OHCA could only enforce its lien against that part of the proceeds which represented payment for medical expenses, and that medical expenses were not recovered as part of the settlement. Alternatively, Plaintiff asserted that even if OHCA could enforce its lien against the entire settlement fund, then it should receive no greater ratio of recovery than the child received based upon the total value of the child’s claim. ¶6 The trial court ruled in OHCA’s favor, holding that the lien was enforceable against the disputed proceeds, stating, in part: The Court further finds that the Plaintiffs contend that the medical expenses were not part of the recovery as the petition on behalf of the minor sought only damages for the personal injury and that the natural parents of the minor would be responsible for the medical bills as opposed to the minor. The Court finds that the minor would be considered a recipient of benefits as contemplated under 63 O.S. § 5051.1 and furthermore, that the lien is statutory and therefore not subject to pro rata reduction. Young v. Southwestern Medical Center, 1998 OK CIV APP 124, American Medical Security v. Josephson, 2000 OK CIV APP 127, Tomlinson v. Continental Casualty Company, 2003 OK CIV APP 84. The Court further finds that the statute creates a debt on behalf of the recipient of benefits and does not distinguish whether Vol. 81 — No. 3 — 1/30/2010
the recipient was a minor or an adult. (Emphasis added). ¶7 Plaintiff appeals.3 STANDARD OF REVIEW ¶8 The remedy of enforcing a lien is a matter of equitable cognizance. Mehdipour v. Holland, 2007 OK 69, ¶ 25, 177 P.2d 544, 549. Issues of statutory construction are matters of law, which we review de novo, or without deference to the trial court’s determination of statutory language. Welch v. Crow, 2009 OK 20, ¶ 10, 206 P.3d 599, 603. ANALYSIS ¶9 Title 63 O.S. Supp. 2008 § 5051.1 provides, in part: A. 1. The payment of medical expenses by the Oklahoma Health Care Authority for or on behalf of or the receipt of medical assistance by a person who has been injured or who has suffered a disease as a result of the negligence or act of another person creates a debt to the Authority, subject to recovery by legal action pursuant to this section. Damages for medical costs are considered a priority over all other damages and should be paid by the tortfeasor prior to other damages being allocated or paid. ... D. If the injured or diseased person asserts or maintains a claim against another person or tortfeasor on account of the injury or disease, the Authority: 1. Shall have a lien upon payment of the medical assistance to the extent of the amount so paid upon that part going or belonging to the injured or diseased person of any recovery or sum had or collected or to be collected by the injured or diseased person up to the amount of the damages for the total medical expenses . . . whether by judgment or by settlement or compromise. The lien authorized by this subsection shall: a. be inferior only to a lien or claim of the attorney or attorneys handling the claim on behalf of the injured or diseased person, the heirs or personal representative, b. not be applied or considered valid against any temporary or permanent
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disability award of the claimant due under the Workers’ Compensation Act, c. be applied and considered valid as against any insurer adjudged responsible for medical expenses under the Workers’ Compensation Act, and d. be applied and considered valid as to the entire settlement, after the claim of the attorney or attorneys for fees and costs, unless a more limited allocation of damages to medical expense is shown by clear and convincing evidence[.] (Emphasis added). ¶10 In this case, Plaintiff does not dispute that OHCA is generally entitled to the § 5051.1 lien. OHCA paid medical expenses to or on behalf of AJ who was injured as a result of the negligence of another person; AJ asserted a claim against the tortfeasors on account of the injury; and AJ received a payment for damages “by judgment or by settlement or compromise.” Instead, Plaintiff asserts that OHCA can only enforce its statutory lien against that part of the settlement proceeds which were for “medical expenses,” and, here, the settlement proceeds did not contain payment for any medical expenses. Plaintiff asserts that she did not seek such expenses because her right to assert a claim for them was barred by 12 O. S.2001 § 95(A)(3). ¶11 In its order, the trial court does not address this issue. Instead, it ruled in favor of OHCA after concluding that “the minor would be considered a recipient of benefits as contemplated under 63 O.S. § 5051.1 and furthermore, that the lien is statutory and therefore not subject to pro rata reduction.” In other words, the trial court found it made no difference whether or not medical expenses were included in the settlement proceeds because OHCA was entitled to enforce its statutory lien against any proceeds recovered by the recipient child. This legal conclusion was in error. ¶12 First, the statute restricts the enforcement of the statutory lien to that portion of a settlement which is allocated to medical expenses. This legislative intent is clearly demonstrated by the language of the statutory presumption contained in §5051.1(D)(1)(d) which provides that the lien shall “be applied and considered valid as to the entire settlement, after the claim of the attorney or attorneys for fees and costs, unless a more limited allocation of 248
damages to medical expenses is shown by clear and convincing evidence.” (Emphasis added). Second, enforcement of the lien against the entire settlement fund is contrary to the federal Medicaid statute’s anti-lien provision, set forth in 42 U.S.C. §1396p(a)(1) (OCIS 2009).4 ¶13 This latter principle was explained in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752 (2006), a case similar to the one at bar. There, Arkansas’ Medicaid authority paid $215,000 of medical bills for a plaintiff injured in a car accident. The plaintiff then sued and settled the case for $550,000, which the parties stipulated was only about one-sixth of the reasonable value of the claim. They also stipulated that $35,000 of the proceeds were for medical expenses. On appeal, a unanimous U.S. Supreme Court held that even if the Arkansas lien law was “consistent with federal [Medicaid anti-lien] law insofar as it encumbers proceeds designated as medical payments, the anti-lien provision precludes attachment or encumbrance of the remainder of the settlement.” Id., 547 U.S. at 270, 126 S. Ct. at 1755. ¶14 As stated above, OHCA may only enforce its statutory lien “upon that part” of the settlement proceeds paid by the tortfeasor for medical expenses. The trial court erred in finding otherwise. ¶15 Ultimately, this case must be resolved by determining whether the negligence settlement includes an amount paid for medical expenses. This presents a question of fact which must be resolved by the trial court. In resolving this factual question, the statute provides a presumption that the lien may be applied against the entire settlement fund unless the presumption is overcome by clear and convincing evidence that “a more limited allocation of damages to medical expense is shown.” In this case, Plaintiff asserts that the court had such evidence, although this is disputed by OHCA.5 Generally, where there is conflicting evidence on an issue of fact, we defer to the judgment of the trial court. Mueggenborg v. Walling, 1992 OK 121, 836 P.2d 112. Here, however, the trial court made no factual findings as to whether the settlement proceeds included an allocation for medical expenses. Because this case is dependent upon the trial court’s resolution of this issue, we reverse and remand with directions that it conduct an evidentiary hearing thereon, affording both parties the opportunity to present evidence.
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CONCLUSION ¶16 Accordingly, the trial court’s order is reversed and remanded with directions that an evidentiary hearing be conducted consistent with this Opinion. ¶17 REVERSED AND REMANDED WITH DIRECTIONS. RAPP, J., and FISCHER, J., concur. 1. Title 12 O.S.2001 § 96, allows a minor to bring a legal action within one year of attaining majority. AJ does not turn 18 years of age until 2013. 2. Because AJ was a minor, court approval was necessary pursuant to 12 O.S. Supp. 2008 § 83. 3. OHCA’s motion to dismiss this appeal, which was denied by the Supreme Court and is now reurged by OHCA, is hereby denied. Contrary to OHCA’s argument, the facts show that on November 18, 2008, Plaintiff timely responded to a Supreme Court order in a manner that the Court deemed sufficient to allow this appeal to proceed. OHCA’s assertion that Plaintiff was required to notify it “prior to a compromise or settlement against a third party,” as provided in 63 O.S. Supp. 2008 § 5051.1(H), and that her failure to do so violated OHCA’s due process rights and constituted a waiver of her right to oppose enforcement of the lien, is also denied. We are unable to find that OHCA was prejudiced by any deficiency of notice. In fact, OHCA received notice of the settlement prior to the trial court’s approval of same, although the notice was given by the insurer instead of Plaintiff. Contrary to its assertion, OHCA was not entitled to be named as a party and the statute does not mandate its appearance and participation at the settlement hearing. Even if it had done so, the amount it claimed was set aside until its claim could be decided, and it is being afforded ample opportunity to fully litigate its claim. Thus, any error would be harmless. See 12 O.S.2001 § 78. 4. This statute prohibits States from imposing liens “against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan,” with certain exceptions not applicable here. 5. The appellate record consists primarily of the court file and a transcript of the settlement hearing, and contains substantial evidence supporting Plaintiff’s claim. For example, the parties stipulated that OHCA made payments on behalf of AJ more than eight years ago and that Plaintiff’s right to recover medical expenses in a negligence claim has been barred by the two year statute of limitations set forth in 12 O.S.2001 §95(A)(3); Plaintiff’s lawsuit did not seek to collect medical expenses paid on behalf of her child; OHCA’s response contains correspondence supporting Plaintiff’s assertion that the settlement proceeds did not include payment for AJ’s medical expenses; and the transcript of the settlement hearing contains testimony offered by Defendants’ attorney in which Plaintiff states that the settlement did not include payment for any medical expenses. However, OHCA asserts that the file also contains contradictory evidence, such as language in the settlement agreement which refers to medical expenses. OHCA also asserts Plaintiff could have recovered medical expenses in an action brought under the dog bite statute, 4 O.S.2001 §42.1. We make no conclusions regarding this conflicting evidence and law.
2009 OK CIV APP 98 Phillip Kennedy, Plaintiff/Appellant, v. BNSF RAILWAY CORPORATION f/k/a Vol. 81 — No. 3 — 1/30/2010
BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant/Appellee. Case No. 107,412. October 30, 2009 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE DANIEL L. OWENS, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Thomas M. Wright, WRIGHT STOUT & WILBURN, PLLC, Muskogee, Oklahoma, for Appellant Robert D. Hart, Jeff Fields, Oliver L. Smith, Chriostpher D. Wolek, GIBBS ARMSTRONG BOROCHOFF MULLICAN & HART, P.C., Tulsa, Oklahoma, for Appellee JERRY L. GOODMAN, JUDGE: �¶1 Phillip Kennedy (Kennedy) appeals the trial court’s July 15, 2009, order granting BNSF Railway Corporation’s f/k/a Burlington Northern Santa Fe Railway Company (BNSF) motion for summary judgment. After review of the record on appeal and applicable law, we reverse and remand for further proceedings.1 FACTS ¶2 Kennedy filed suit against BNSF on May 8, 2008, under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. and the Locomotive Inspection Act, (LIA), 49 U.S.C. §§ 20701 et seq., formerly known as the Boiler Inspection Act, 45 U.S.C. §§ 22-34.2 Kennedy alleged bilateral knee, neck, and back injuries as a result of cumulative and repetitive trauma during his employment for BNSF as a locomotive engineer. At his deposition, Kennedy asserted only bilateral knee injuries, which he contended were caused by getting on and off moving equipment, walking on ballasts, and riding on a rough seat. ¶3 In October of 2001, Kennedy was seen by Dr. Ogle for right knee pain. He was given Vioxx, an anti-inflammatory. An x-ray of Kennedy’s right knee revealed progressive degenerative change with no definite acute abnormality. In November of 2001, Kennedy returned to Dr. Ogle where he asserted his right knee was much better, but that he would continue taking the anti-inflammatory for a recent foot injury. Kennedy ultimately had surgery for the foot injury with Dr. Fike. Kennedy returned to
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work with no restrictions. In June of 2002, Kennedy was involved in a car accident and the record provides he continued taking the antiinflammatory. In August of 2003, Kennedy returned to Dr. Fike for left leg or knee pain.
dy’s claim was barred by FELA’s statute of limitations and granted BNSF’s motion by order dated July 15, 2009, finding Kennedy “had reason to know back in 2001” that his bilateral knee injury was related to his employment.
¶4 In July of 2006, Kennedy returned to Dr. Fike complaining of bilateral knee pain. Dr. Fike’s July 13, 2006, report provides:
STANDARD OF REVIEW
[H]e is a train engineer, at this point he is getting ready to retire. He has been having a lot of problems with bilateral knees. He has had a number of years of pain associated with those. He says it has gotten worse over the last year or two. He has been on multiple anti-inflammatory medicines, has not had any injections, does not want to use canes or walkers. Hasn’t tried any braces or other things. Says he is having a lot of trouble getting in and out of the engines because of this, but once is [sic] preparing to retire. He does have some rest pain, denies any groin pain, has no radicular symptoms. At this point he comes in to see me. ... X-RAYS: of his knees are reviewed. He has complete medial joint space loss bilaterally with sclerosis and early osteophyte formation. There is no significant change of the lateral joint that are seen. ¶5 Dr. Fike diagnosed Kennedy with degenerative joint disease and noted that his x-rays revealed, inter alia, complete medial joint space loss bilaterally. Steroid injections were performed over the next several months. In January of 2008, Kennedy underwent a total right knee arthroplasty. ¶6 The record further provides Kennedy was morbidly obese since his 30’s and that the “excess weight was wearing out his joints.” Kennedy underwent a gastric banding surgery in 2007 and lost a significant amount of weight. Kennedy acknowledged that his knees felt better after losing the weight. ¶7 BNSF filed a motion for summary judgment on the grounds Kennedy’s claims under the FELA and LIA were barred by FELA’s three (3) year statute of limitations because Kennedy knew or should have known his bilateral knee injury was work-related no later than October of 2001 and was therefore required to file no later than October 2003. The trial court agreed Kenne250
¶8 We review a trial court’s grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, we examine the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears an “affirmative duty … to test for legal sufficiency all evidentiary material received in summary process in support of the relief sought by the movant.” Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 106. Further, the evidentiary materials and the inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50, 55. ¶9 In FELA cases, courts apply federal law interpreting the Act to determine the substantive rights of the parties. Nichols v. Burlington Northern Santa Fe R.R., 56 P.3d 106, 108, (citing Johnson v. Nat’l R.R. Passenger Corp., 989 P.2d 245 (Colo.App.1999). Close cases under FELA should be allowed to proceed to trial. Id., (citing Bailey v. Cent. Vt. R.R., 319 U.S. 350, 354 (1943)(“To deprive [railroad] workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.”)). ANALYSIS ¶10 Congress enacted FELA to provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer or fellow employees. Atchison, Topeka and Santa Fe Railway Co. v. Buell, 480 U.S. 557, 561 (1987). “FELA law is a hybrid. It hovers ambivalently between workers’ compensation law and the common law tort of negligence. It is neither, but it partakes of characteristics of both.” CSX Transp., Inc. v. Miller, 858 A.2d 1025, 1028-29 (Md.App.2004).3 ¶11 A FELA claim may be brought in state or federal court. See 45 U.S.C. § 56. However, “as a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them
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is federal.” St. Louis Southwestern Railway Company v. Dickerson, 470 U.S. 409, 411 (1985). ¶12 LIA, on the other hand, imposes “an absolute duty” on railroad carriers to ensure that their locomotives are both properly maintained and safe to operate. Matson v. Burlington Northern Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir. 2001), (citing King v. S. Pac. Transp. Co., 855 F.2d 1485, 1488 (10th Cir.1988)). LIA does not create an independent cause of action. The claim must be brought under FELA. Id., (citing Feichko v. Denver & Rio Grande W. R.R. Co., 213 F.3d 586, 588 fn. 4 (10th Cir. 2000). ¶13 To maintain a claim under FELA, the plaintiff must allege and prove the action was filed “within three years from the day the cause of action accrued.” 45 U.S.C. § 56; see Rohner v. Union Pac. R.R. Co., 225 F.2d 272, 274 fn. 2 (10th Cir.1955). The running of the statute of limitations for a FELA claim based on a cumulative injury is calculated under the discovery rule. Nichols v. Burlington Northern & Santa Fe R.R., 56 P.3d 106, 109 (Colo.App. 2002)(citing Fonseca v. Consol. Rail Corp., 246 F.3d 585 (6th Cir. 2001)). The discovery rule fixes accrual at the time the plaintiff first becomes aware of both: 1) the existence of an injury; and 2) the cause of the injury. United States v. Kubrick, 444 U.S. 111 (1979). Accordingly, in an FELA case, a cause of action accrues for statute of limitations purposes when a reasonable person knows or, in the exercise of reasonable diligence, should have known of both the injury and its governing cause. Green v. CSX, 414 F.3d 758, 763 (7th Cir. 2005)(citations omitted). This rule requires an objective inquiry into when the plaintiff knew or, in the exercise of reasonable diligence, should have known the essential facts of the injury and its cause. Nichols, 56 P.3d 106, 109, (citing Fries v. Chicago & Northwestern Transp. Co., 909 F.2d 1092 (7th Cir. 1990)). ¶14 The “should have known” test, however, is not a “could have known” test. CSX Transp., Inc. v. Miller, 858 A.2d 1025 (Md.App.2004). “Rather, it requires a very substantial commonsense likelihood that a reasonably careful person would discover the existence of the injury and its cause.” Id., (quoting Rogers v. Illinois Cent. R.R. Co., 833 S.W.2d 426, 428 (Mo. App.1992)). An employee’s mere suspicion of an injury or its probable cause, standing alone, is not the operative standard for determining when a cause of action accrues under FELA. CSX Transp., Inc. v. Bickerstaff, 978 A.2d 760 Vol. 81 — No. 3 — 1/30/2010
(Md.App.2009), (citing CSX v. Miller, 858 A.2d 1025 (MdApp.2004), (quoting Gay v. Norfolk and W. Ry. Co., 483 S.E.2d 216, 219 (1997)). See e.g. Reasons v. Union Pac. R.R., 886 S.W.2d 104 (Mo. Ct.App. 1994)(Suspicion of a cause is not enough; a claimant must either know of the problem and the probable connection or ignore a problem that would be apparent to a reasonable person.) While a doctor’s diagnosis is not necessary to know of an injury and/or its cause, there is a difference between an injury for which a claim of compensation can be filed and intermittent pain that is presumed to be temporary and is quickly resolved. See Sabalka v. Burlington Northern & Santa Fe R.R., 54 S. W.3d 605 (Mo.Ct.App.2001); Schaefer v. Union Pac. R.R., 10 F.Supp.2d 1240 (D.Wyo.1998). ¶15 On appeal, Kennedy asserts he did not learn his bilateral knee injury was related to his employment until his October 4, 2006, doctor visit with Dr. Schultz. Dr. Schultz’ October 4, 2006, medical record provides: [Kennedy] has significant degenerative joint disease secondary to his job on the railroad for several years. His job duties required running and jumping onto and off of trains, not to mention the vibratory trauma his body endured while working for the railroad. I believe that his job duties on the railroad are the primary reason that his joints have degenerated. Consequently, he has been unable to exercise as he would like secondary to joint pain and has developed obesity. He is to see Dr. Walton next week for initiation of a gastric bypass procedure. He also follows with Dr. Fike and Whiteneck for injections into his right knee for his degenerative joint disease. ¶16 Accordingly, the question in the present case is whether the evidence, read in a light most favorable to Kennedy, creates a genuine issue regarding when Kennedy knew, or a reasonable person knew or with reasonable diligence should have known, not only that he had suffered a cumulative injury to his bilateral knees but also that the injury was caused by his employment at the railroad. To make this determination, the trial court applied the discovery rule and found Kennedy’s claim was time barred because he had reason to know in October 2001 that he had a bilateral knee injury and that it was related to his employment. [T]he court is of the opinion that this plaintiff had reason to know back in 2001 what
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was creating his problems. And if you read the records, the overall discussion was it was related to the nature of the job he had and what was going on with his employment. I think he had reason to know. We conclude that whether Kennedy’s prior incidents of knee problems were sufficient to demonstrate when he knew or should have known of a bilateral knee injury and its cause is an unresolved question of fact. ¶17 In an analogous case, Green v. CSX Trans. Inc., 414 F.3d 758 (7th Cir. 2005), an injured railroad employee brought a two count FELA action seeking to recover for a single injury incident on January 18, 2000, to her right shoulder and for cumulative and repetitive trauma injuries to both shoulders. ¶18 With respect to Green’s claim for cumulative trauma injuries, the record provides Green had complained of shoulder pain to her doctors for years. In 1988, Green’s medical records provide she has a history of right shoulder pain when it is cold. She was diagnosed with bursitis and was given an antiinflammatory. In 1993, her medical records note she had shoulder discomfort and that she believed she sprained her shoulder at work. She returned five (5) months later for right shoulder pain with probable tendinitis. She was again prescribed an anti-inflammatory. In 1997, Green’s co-worker filed a complaint with CSX asserting that he and other employees, including Green, were experiencing right shoulder discomfort due to their work duties. ¶19 Green filed her action under FELA on October 15, 2002. CSX argued Green’s claims were barred by FELA’s statute of limitations. The trial court granted CSX’s motion regarding Green’s cumulative trauma right shoulder claim, finding Green “knew she had right shoulder problems as far back as 1997, if not earlier.” Id. at 763. The trial court concluded Green’s cause of action was barred by the statute of limitations because her medical records from 1994 indicated Green used her arm at work, and thus she was aware her problems could be work-related. Id. Further, the court found the 1997 letter from the co-employee to CSX provided evidence Green knew she was having work-related shoulder pain as of 1997. Id. ¶20 The Seventh Circuit Court of Appeals reversed, finding there was sufficient evidence to create a genuine issue of fact regarding whether a reasonable person knew or with rea252
sonable diligence should have known before October 15, 1999, not only that Green had suffered the cumulative injury to her right shoulder but also that the injury was caused by her work at the railroad. Before October 15, 1999, there were only a few references to shoulder pain: 1) in 1988 when she was seen for left shoulder pain; 2) in 1993 for right shoulder pain with possible shoulder sprain at work; 3) in 1994 for right shoulder pain with a diagnosis of tendonitis and she was given an anti-inflammatory; and 4) the 1997 letter from her coworker noting right shoulder discomfort due to work conditions. The court noted that none of these reports was serious enough to put Green on notice that it was time to sue her employer or lose her right to do so: It is not the law that if you are scratched as a result of someone’s negligence or other tort you must sue, even though the scratch is trivial, against the possibility that it might develop into something serious after the period of limitations has run. “Presumably there is room for a de minimis concept where there has been some tortious impact but such inconsequential manifestations that a reasonable person would not consider he was either injured or that it was appropriate to make inquiry. Green, 414 F.3d 758, 764, (citing Lancaster v. Norfolk & Western Ry. Co., 773 F.2d 807, 821 (7th Cir.1985), (quoting Nivens v. Signal Oil & Gas Co., Inc., 520 F.2d 1019, 1024 (5th Cir.), modified on other grounds, 523 F.2d 1382 (5th Cir.1975)). Thus, there was a question of fact whether Green’s claim was barred by FELA’s statute of limitations. ¶21 Therefore, the relevant inquiry in the present case is when Kennedy knew or should have known of a bilateral knee injury and that there was a causal relation between his employment with BNSF and this injury. The undisputed facts reveal Kennedy first complained of right knee pain in October of 2001. An x-ray revealed progressive degenerative change with no definite acute abnormality. In November of 2001, Kennedy returned to Dr. Ogle where he asserted his right knee was much better. There is no evidence of any complaint or injury to Kennedy’s left knee at this time. Although Kennedy’s medical records provide he continued to take an anti-inflammatory, there are references in the record Kennedy took the antiinflammatory for a foot injury and for a subsequent car accident. Thereafter, Kennedy saw
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Dr. Fike in August of 2003 complaining of left leg or knee pain. From November 20, 2001, through April 18, 2006, Kennedy worked fulltime without restrictions. ¶22 The first reference to a bilateral knee problem was not until three (3) years later, on July 13, 2006. Although Dr. Fike notes Kennedy had been having problems with bilateral knees for a number of years and had been on an antiinflammatory, this alone does not establish Kennedy knew or with reasonable diligence should have known that he had suffered a cumulative injury to his bilateral knees and that the injury was caused by his work at the railroad.
Northwestern Transp. Co., 909 F.2d 1092 (7th Cir.1990)(ringing in ears, which worsened at work, subsided on weekends, and would not subside without two (2) hours of silence after coming home from work, developed five (5) or six (6) years prior to filing suit). ¶25 Accordingly, the trial court’s July 15, 2009, order is reversed and the matter remanded for further proceedings consistent with opinion. ¶26 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. WISEMAN, V.C.J., and BARNES, P.J., concur.
¶23 Reviewing the record in the light most favorable to Kennedy as this Court must, the medical history indicates Kennedy was aware of pain in his knees, having gone to the doctor in October of 2001 for right knee pain, in August of 2003 for left leg or knee pain, and in July of 2006 for bilateral knee complaints. However, the record provides the pain was helped and/or relieved by an anti-inflammatory and there is no evidence the knee problems incapacitated Kennedy, as he worked full-time with no restrictions. We disagree with the trial court’s conclusion that the record establishes Kennedy had reason to know in October of 2001 that he had a bilateral knee injury and that his employment was the cause of his injury. Rather, Kennedy has presented sufficient evidence to create a genuine issue of fact on these issues. Close cases under FELA should be allowed to proceed to trial. See Bailey v. Cent. Vt. Ry., 319 U.S. 350, 354 (1943)(“To deprive [railroad] workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.”).
1. Kennedy’s motion for leave to submit an appellate brief is denied. 2. An action brought pursuant to the Locomotive Inspection Act is prosecuted as an action under FELA. Campbell v. CSX Transport, 892 So.2d 923 (Ala.Civ.App. 2004). 3. “Because the FELA does not impose on the railroads tort liability for injuries inflicted on the public generally, but is confined to liability for injuries suffered by employees in the course of their employment, it bears a strong resemblance to workers’ compensation laws. It is not such, however. In Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, the Supreme Court made that very clear: That FELA is to be liberally construed, however, does not mean that it is a workers’ compensation statute. We have insisted that FELA ‘does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur.’” CSX v. Miller, 858 A.2d 1025, 1031 (Md.App. 2004).
¶24 In each of the cases relied upon by BNSF to support its contention that summary judgment was proper, the plaintiff was aware of a chronic condition, not only sporadic symptoms, and knew or strongly suspected that work was the cause of the injury. See Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233 (10th Cir. 2001)(plaintiff complained to doctor of chronic back pain and a significant worsening of pain that he believed to be work-related more than three (3) years prior to filing suit); Tolston v. Nat’l R.R. Passenger Corp., 102 F.3d 863 (7th Cir. 1996)(plaintiff began suffering extreme pain and seeking regular treatment and medication six (6) years before filing suit); Fries v. Chicago &
HONORABLE RYAN D. REDDICK, TRIAL JUDGE
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2009 OK CIV APP 103 IN THE MATTER OF THE ADOPTION OF M.A.R. and C.A.R., Minor Children. JEFFERY PRICE RODGERS, Natural Father, Appellant, v. NANCY PIERCE, Natural Mother, and CHRISTOPHER PIERCE, Stepfather and Prospective Adoptive Father, Appellees. Case No. 106,648. October 20, 2009 APPEAL FROM THE DISTRICT COURT OF TEXAS COUNTY, OKLAHOMA
REVERSED AND REMANDED WITH INSTRUCTIONS Robert H. Jaques, Guymon, Oklahoma, for Appellant Christopher J. Liebman, Guymon, Oklahoma, for Appellees DEBORAH B. BARNES, PRESIDING JUDGE: ¶1 Jeffrey Price Rodgers (Father), the natural father of the minor children M.A.R. and C.A.R. (Children), appeals the trial court’s Order filed
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on November 7, 2008, declaring Children eligible for adoption without Father’s consent. We reverse and remand with instructions.1 FACTS AND PROCEDURAL BACKGROUND ¶2 Father and Nancy Pierce (Mother) were divorced in 2002. The decree of divorce granted custody of Children to Mother2 and ordered Father to pay, during the time period relevant to this appeal,3 $433 a month for child support. Father was also granted visitation rights of “every other weekend.”4 ¶3 In September of 2003, Mother married Christopher Pierce (Stepfather) and, on April 27, 2007, Stepfather and Mother filed a Petition for Adoption Without Consent. Pursuant to the statute in effect at the time the Petition was filed, 10 O.S.2001 § 7505-4.2,5 Mother and Stepfather argue that adoption of Children should proceed without the consent of Father because he has willfully failed, refused or neglected to contribute to the support of Children in substantial compliance with the terms of the divorce decree, and he has failed to establish and/or maintain a substantial and positive relationship with Children, both for a period of 12 consecutive months out of the last 14 preceding the filing of the petition for adoption.6 See 10 O.S.2001 §§ 7505-4.2(B)(1), 7505-4.2(H).7 ¶4 On June 16, 2008, Father filed, pro se, a Motion of Response to Adoption Proceeding8 in which Father stated that he did “NOT Consent to the petition for adoption,” and argued he had “[paid] child support in the past 12 months.” He further argued that he had “maintained a parent relationship with both daughters,” and that Mother’s failure to comply with the divorce decree order on visitation had forced him to file a motion to enforce his visitation rights in March of 2007. ¶5 After an evidentiary hearing, the trial court, in its Order filed on November 7, 2008, found, in relevant part: (1) that Father willfully failed, refused, or neglected to substantially comply with the child support order for 12 consecutive months during the relevant 14month period “despite the child support tendered during that time,” (2) that Father failed to establish and/or maintain a substantial and positive relationship with Children for 12 consecutive months during the relevant 14-month period, and (3) that Father’s single motion in March of 2007 to enforce his visitation rights during the relevant 14-month period “does not 254
constitute sufficient legal action to establish and/or maintain a substantial and positive relationship with [Children]” under 10 O. S.2001 § 7505-4.2(H)(2). The trial court found, therefore, that the adoption proceedings should continue without Father’s consent. ¶6 From this Order, Father appeals. STANDARD OF REVIEW ¶7 “Because adoption without parental consent effects a termination of parental rights, the magnitude of the rights involved requires proof that is clear and convincing.” In the Matter of the Adoption of C.R.B., 1999 OK CIV APP 104, ¶ 5, 990 P.2d 316, 318. (Citations omitted.) “The burden is on the party seeking to adopt without consent to prove such adoption is warranted by clear and convincing evidence.” In the Matter of the Adoption of C.D.M., 2001 OK 103, ¶ 13, 39 P.3d 802, 807. (Footnote omitted.) “Accordingly, the decision of the trial court will not be disturbed unless it fails to rest on clear and convincing evidence.” Id. (Footnote omitted.) ¶8 This Court will examine issues of fact under a “clear and convincing” standard and issues of law de novo, without deference to the trial court’s judgment. In the Matter of the Adoption of J.N.K., 2000 OK CIV APP 132, 15 P.3d 521. ANALYSIS ¶9 “The law presumes that consent of a child’s natural parents is necessary before an adoption may be effected.” In the Matter of the Adoption of C.D.M., 2001 OK 103, ¶ 13, 39 P.3d 802, 807. (Footnote omitted.) The statutory sections confronted in this case, however, allow an adoption to proceed without a natural parent’s consent under certain conditions. In construing the specific language of these statutory sections and applying them to this appeal, we are guided by the following principles: It is well-settled that adoption statutes must be strictly construed. Strict construction favors the rights of natural parents when the controversy is with one who seeks to destroy the parental status. Parents have a fundamental, constitutionallyprotected interest in the continuity of the legal bond between themselves and their children. The integrity of familial status is a value to be regarded with great solicitude. In the Matter of the Adoption of V.A.J., 1983 OK 23, ¶ 6, 660 P.2d 139, 141. (Footnotes omitted.)
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I. Title 10 O.S.2001 § 7505-4.2(B)(1) ¶10 The trial court found, pursuant to 10 O.S.2001 § 7505-4.2(B)(1), that Father willfully failed, refused, or neglected to substantially comply with the child support order during the relevant period “despite the child support tendered during that time.” Father claims, however, that his partial compliance with the child support order and/or his brief incarceration, both during the relevant 14-month period, prevent such a finding and his consent to an adoption of Children should remain necessary. ¶11 The relevant portion of 10 O.S.2001 § 7505-4.2(B) states: B. Consent to adoption is not required from a parent who, for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of a child or a petition to terminate parental rights pursuant to Section 7505-2.1 of this title, has willfully failed, refused, or neglected to contribute to the support of such minor: 1. In substantial compliance with an order entered by a court of competent jurisdiction adjudicating the duty, amount, and manner of support . . . . This statute, strictly construed and applied to this case, requires that any failure on Father’s part to substantially comply with his child support order occur for 12 consecutive months and that such failure be willful or Father’s consent to the adoption is necessary. ¶12 We find that for the following three months out of the relevant 14-month period, Father either substantially complied with the child support order, or his failure to do so was not willful. First, in April 2007, Father made a child support payment of $369. Although this payment was $64 less than the $433 per month required at this time, we find that it was in substantial compliance with the child support order pursuant to 10 O.S.2001 § 7505-4.2(B)(1), taking into account the great solicitude that is warranted when the continued bond of a parent to his or her children is threatened with termination. See In the Matter of the Adoption of V.A.J., 1983 OK 23, ¶ 6, 660 P.2d 139, 141. ¶13 Second, in March 2007, Father made a child support payment of $1,599, almost four Vol. 81 — No. 3 — 1/30/2010
times the monthly amount of $433 required by the child support order. Therefore, Father substantially complied with the child support order for the month of March 2007. ¶14 Third, during January 2007, there is no clear and convincing evidence that Father had any financial ability to pay child support or that he incapacitated himself in order to avoid the duty of paying child support. Therefore, Father’s failure to pay child support during this month cannot be adjudged willful. As found in In the Matter of the Adoption of D.L.A., 2003 OK CIV APP 7, 62 P.3d 796, because the party seeking adoption without the consent of the natural father failed to produce clear and convincing evidence that the father had any income while incarcerated other than his prison pay, or that his incarceration resulted from an intent to avoid the support duty imposed by law, the father’s failure to pay child support while in prison was not willful. ¶15 Here, Father was incarcerated from December 4, 2006, to February 18, 2007.9 “Imprisonment cannot be equated with willful failure to contribute to the child’s support.” In the Matter of the Adoption of V.A.J., 1983 OK 23, ¶ 7, 660 P.2d 139, 141. Furthermore, there is no clear and convincing evidence that Father had a source of income or other means with which to pay child support during this period. Therefore, for at least the entire month of January, Father had no ability to substantially comply with the child support order and no opportunity to “willfully” fail to do so. ¶16 Having made this determination, we must ask “whether the natural parent intentionally incapacitated himself for the purpose of avoiding the duty imposed by law . . . .” Id. We find that there is no clear and convincing evidence to support such a finding. Father spent the year of 2006 in Pampa, Texas, after moving there from Guymon, Oklahoma, in search of employment.10 After failing to find any dependable employment, Father moved back to Guymon, Oklahoma, in December 2006, where he had “more connections” with which to find employment and where he could save money by living with his parents.11 Father was arrested for failure to pay child support a few days after moving back to Guymon in December 2006.12 Mother and Stepfather have not produced clear and convincing evidence that Father intentionally incapacitated himself for the purpose of avoiding his child support
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duty. Therefore, we find that Father’s failure to pay during January 2007 was not willful. ¶17 In sum, we find that for at least three of the relevant 14 months — namely, March 2007, April 2007, and January 2007 — Father either substantially complied with the child support order, or his failure to do so was not willful. As a result, there have not been 12 consecutive months of willful failure to substantially comply with the child support order during the relevant 14-month period. We find that the trial court’s dete rmination that Father’s consent to the adoption is not required pursuant to 10 O.S.2001 § 7505-4.2(B) is not supported by clear and convincing evidence. II. Title 10 O.S.2001 § 7505-4.2(H)(2) ¶18 Father claims that he was denied the opportunity to establish and/or maintain a substantial and positive relationship with Children because of the actions of Mother, thus triggering the application of 10 O.S.2001 § 7505-4.2(H)(2). Father argues, pursuant to 10 O.S.2001 § 7505-4.2(H)(2), that his motion to enforce visitation rights, filed in the District Court of Texas County on March 30, 2007,13 constitutes sufficient legal action to establish and/or maintain a substantial and positive relationship with Children and that, therefore, his consent is required in these adoption proceedings.14 Title 10 O.S.2001 § 7505-4.2(H)(2) states: 2. In any case where a parent of a minor claims that prior to the receipt of notice of the hearing provided for in Sections 75052.1 and 7505-4.1 of this title, such parent had been denied the opportunity to establish and/or maintain a substantial and positive relationship with the minor by the custodian of the minor, such parent shall prove to the satisfaction of the court that he or she has taken sufficient legal action to establish and/or maintain a substantial and positive relationship with the minor prior to the receipt of such notice. In applying this language to the case at bar, the trial court determined, in effect, that Father’s legal action taken in March 2007, was “too little, too late.”15 ¶19 As stated above, Father filed a motion to enforce his visitation rights in March 2007.16 Mother and Stepfather did not file their Petition for Adoption Without Consent until April 27, 2007. Therefore, Father’s legal action clearly 256
took place before receipt of notice of the April 27, 2007 Petition or its subsequent hearing, and there is no clear and convincing evidence that Father’s legal action was “too late.” ¶20 The only remaining issue for this Court to determine is whether the trial court’s finding that Father’s legal action was too little — i.e., was not “sufficient legal action to establish and/or maintain a substantial and positive relationship with [Children]” — is supported by clear and convincing evidence. Although Father’s motion to enforce his visitation rights was filed toward the end of the relevant 14month period in which, according to Mother and Stepfather, Father made little to no attempt to contact Children, we must strictly construe the statutory language. All that is required by the statute is sufficient legal action to establish a substantial and positive relationship with Children. To this end, Father not only filed a motion to enforce his visitation rights within the relevant time period, but that motion eventually led to a successful “finding that [Mother] intentionally and without cause denied Courtordered visitation” to Father.17 Father was then granted renewed visitation which began in May 2007.18 Father stated, “the same week [the trial judge] let me see the kids I went and seen them.”19 The following exchange elaborates: [Father’s Attorney:] . . . you hired [an attorney] to file the application to enforce visitation; is that correct? [Father:] Yes, sir, that’s correct. [Father’s Attorney:] And that application was filed, correct? [Father:] Yes, it was. [Father’s Attorney:] And the Judge did order your visitation enforced with modifications to that visitation, correct? [Father:] Yes, that’s correct. [Father’s Attorney:] And you in fact did visit with your children the weekend after that order was entered; is that correct? [Father:] Yes, I got — I’d visit them every other weekend. First that weekend of the Court date, then every other weekend like the divorce decree states on visitation. . . . [E]very other weekend I picked them up. I had them from 6:00 on Friday until 6:00 on Sunday. I picked them up every other weekend.20
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¶21 We find there is no clear and convincing evidence that Father’s filing in late March 2007 was insufficient legal action to establish and/ or maintain a substantial and positive relationship with Children. Father’s action more than satisfies what the statute demands. The trial court’s determination that Father’s March 2007 motion to enforce his visitation rights was “too little” — i.e., was insufficient legal action to establish and/or maintain a substantial and positive relationship with Children — is not supported by clear and convincing evidence.21 CONCLUSION ¶22 For the reasons set forth, the trial court’s Order, filed November 7, 2008, is reversed, and the matter is remanded with instructions to deny the adoption Petition, absent Father’s consent. ¶23 REVERSED AND REMANDED WITH INSTRUCTIONS. WISEMAN, V.C.J., and GOODMAN, J., concur. 1. Appellees filed a Counter-Petition in Error, urging the trial court’s Order be affirmed. 2. Mother and Father had one other child who is now over the age of 18 and who is not a subject of these adoption proceedings. 3. As explained below, the relevant time period spans from February 27, 2006, to April 27, 2007. 4. Record (R.), p. 123. 5. The relevant version applicable to this appeal is 10 O.S.2001 § 7505-4.2, which became effective June 8, 2001. Effective November 1, 2007, after the Petition for Adoption was filed, the Oklahoma Legislature made revisions to this section, but they do not apply to the portions of the statute applied to this case. Although the Legislature enacted substantial amendments to Title 10 of the Oklahoma Statutes during the 2009 Session, the language from § 7505-4.2 relevant to this appeal has remained unaltered. 6. Mother and Stepfather also argued below, pursuant to 10 O.S.2001 § 7505-4.2(G), that Father’s consent for adoption was not necessary because he “abandoned” Children, but this argument, rejected by the trial court in its Order filed on November 7, 2008, is not raised on appeal. 7. Based on the statutory language and the date of the filing of the Petition for Adoption Without Consent, the relevant time period is from February 27, 2006, to April 27, 2007. 8. R., p. 14. 9. Transcript (Tr.), pp. 98-99; Brief of Appellant, pp. 1-2; Brief of Appellee, p. 7. 10. Tr., pp. 77, 101. 11. Tr., pp. 79, 80. 12. Tr., pp. 101-102. 13. Tr., p. 156. 14. Following Father’s motion to enforce his visitation rights, the trial court made a “finding that [Mother] intentionally and without cause denied Court-ordered visitation in cause FD-2002-26” to Father. Tr., p. 196. 15. Tr., p. 197. 16. Tr., p. 156. 17. Tr., p. 196. 18. Tr., p. 119. 19. Tr., p. 82. 20. Tr., pp. 65-66. 21. Having made this determination, we need not address Father’s argument that he received deficient notice under 10 O.S.2001 § 75054.1(C)(1).
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2009 OK CIV APP 95 MITCH W. HOWARD, Petitioner, v. ACI DISTRIBUTION SOUTH, TRAVELERS INDEMNITY COMPANY OF AMERICA and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 105,496. November 12, 2009 PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT HONORABLE ELLEN C. EDWARDS, TRIAL JUDGE VACATED AND REMANDED FOR FURTHER PROCEEDINGS Jack Zurawik, Tulsa, Oklahoma, for Petitioner David P. Reid, PERRINE, MCGIVERN, REDEMANN, REID, BERRY & TAYLOR, P.L.L.C., Tulsa, Oklahoma, for Respondents JOHN F. FISCHER, JUDGE: �¶1 Claimant Mitch Howard seeks review of a Workers’ Compensation Court three-judge panel order that affirmed the trial court’s order denying his request for medical treatment to his left shoulder. Based on our review of the record on appeal and applicable law, we vacate the order appealed and remand the case for further proceedings consistent with this Opinion. BACKGROUND �¶2 Claimant worked as a utility driver for Employer ACI Distribution South. He sustained a work-related injury on July 21, 2004, when, while working with a trainee to load an 8’ x 10’ piece of glass onto a truck, he attempted to keep the glass from dropping and breaking after the trainee lost his grip. Claimant continued to work for Employer until August 2004, approximately two or three weeks after his accident. He then went to work for City Glass Company, where he drove a truck and performed “light installation” that included lifting up to forty pounds. Claimant filed his Form 3 on September 1, 2004, alleging that he had sustained injury to his neck, back, shoulders and “the whole left side of his body” as a result of his July 21, 2004 injury. Employer admitted that Claimant sustained injury to his neck and back but denied the remaining alleged injuries. This appeal only concerns Claimant’s shoulder injury claim. �¶3 On March 21, 2005, the trial court appointed Dr. Thomas as an independent medical
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examiner (IME) to evaluate Claimant and provide his opinion regarding (1) whether Claimant was temporarily totally disabled as a result of injury to his neck, left shoulder, low back and middle back; (2) whether Claimant had reached maximum medical improvement (MMI) or was in need of additional medical treatment; and (3) the recommended treatment, if any. Dr. Thomas provided his opinion and was subsequently deposed. It was the opinion of Dr. Thomas that Claimant suffered from “cervical degenerative disk disease with cervical and left shoulder pain” but was not temporarily totally disabled. Dr. Thomas found that Claimant sustained “an acute injury in [sic] top of chronic degeneration of his cervical spine creating aggravation in not only the posterior neck, but into the left shoulder.” He recommended “therapeutic epidural steroid injection into the C-6 interspace of the cervical spine” followed by a course of physical therapy. This diagnosis was based on Dr. Thomas’s determination that Claimant’s “main complaint” was his cervical spine and that his left shoulder complaints and “intrascapular pain” were “most likely generated from his cervical spine.” �¶4 On March 8, 2006, the trial court appointed Dr. Bradford Boone as IME to provide his opinion on the causation of Claimant’s left shoulder complaints, to refer Claimant for additional testing if necessary, and to determine whether Claimant was in need of additional medical treatment for his left shoulder. After he provided his written report, Dr. Boone was also deposed by the parties. Dr. Boone testified: I think [Claimant is] nonphysiologic and a lot of his complaints don’t make any sense. I think he does have a shoulder problem, it’s more degenerative in nature. He’s got a little bone spur osteophyte on the undersurface of his AC joint, which is why his shoulder is sore, but it’s hard to relate that to his work scenario. Further, Dr. Boone stated that “most impingements are not traumatic in nature and are degenerative and age-related.” However, Dr. Boone acknowledged that Claimant’s shoulder “needs to be worked up further,” to be certain that his shoulder injury was not work related. Nonetheless, Dr. Boone did not refer Claimant for further medical testing and evaluation.1 �¶5 Claimant filed a Form 9 seeking authorization for medical treatment in the form of 258
diagnostic testing for his left shoulder and referral to an orthopedic surgeon. The matter was set for trial on March 5, 2007. At the trial, Claimant testified that he first sought treatment for his injuries on July 27, 2004, six days after his accident. His initial treatment records admitted as history indicate a diagnosis of lumbar strain but also note that he complained of pain running from the lumbar area into the left shoulder and neck. Claimant also testified regarding an August 2001 work-related injury to his left shoulder, neck and back before being employed by ACI, but stated that he had recovered from that injury. In addition to the medical evidence from IMEs Thomas and Boone, the trial court also admitted conflicting medical reports from Claimant’s expert Dr. Hastings and Employer’s expert Dr. Hallford. �¶6 On March 8, 2007, after both parties rested and the trial was concluded, the trial court entered the following order: THAT on or about JULY 21, 2004, claimant was employed by [ACI Distributing] and such employment was subject to and covered by the provisions of the Workers’ Compensation Act of the State of Oklahoma; and on said date claimant sustained accidental personal injury to the NECK, LEFT SHOULDER, and BACK arising out of and in the course of claimant’s employment. In this order, the trial court also directed Employer to furnish Claimant with an independent medical examination of his left shoulder with Dr. Dukes. The trial court reserved Claimant’s request for additional medical treatment for future hearing. �¶7 The trial court entered a separate order on March 12, 2007, appointing Dr. Dukes as an IME and directing him to provide his opinion regarding the causation of Claimant’s left shoulder complaints and whether they were work related. The trial court also requested Dr. Dukes, if he found the complaints to be work related, to determine whether Claimant was in need of additional medical treatment to his left shoulder and to make specific recommendations regarding any treatment. �¶8 IME Dr. Dukes examined Claimant on May 3, 2007, and determined that his shoulder had been injured, and that Claimant’s symptoms were probably the result of a “lifting-type injury … consistent with a work injury.” He advised the trial court that he was unable to state an opinion regarding Claimant’s need for
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additional medical treatment without further diagnostic treatment, specifically an MRI arthrogram. Dr. Dukes re-examined Claimant following the MRI and stated that in his opinion Claimant “has a left shoulder rotator cuff tendinitis and acromioclavicular [AC] joint arthropathy,” requiring treatment in the form of “a left shoulder arthroscopy with subacromial decompression and distal clavical excision.” �¶9 At a hearing on October 1, 2007, Claimant requested authorization for surgery to his left shoulder by Dr. Dukes and TTD from the date of surgery. Employer denied any need for shoulder treatment related to Claimant’s onthe-job injury and argued that his shoulder complaints were the result of pre-existing condition, i.e., the 2001 injury, and intervening injury resulting from age-related degeneration and Claimant’s three years of subsequent employment after leaving ACI. The only evidence introduced at the October hearing in addition to that contained in the record of the March 2007 trial was (1) The report of Claimant’s expert Dr. Hastings dated June 2007, wherein he again concluded that the workrelated incident on July 21, 2004, was the major cause of Claimant’s shoulder injury and that Claimant needed further evaluation and medical treatment, including the surgery recommended by Dr. Dukes; (2) the two reports from IME Dr. Dukes previously discussed, and, (3) the deposition of Dr. Dukes. In his deposition, Dr. Dukes confirmed the findings of injury stated in his post MRI report, testified that the injury was consistent with the work-related injury described by Claimant, and, stated his medical opinion that this July 21, 2004, injury accounted for at least part of Claimant’s current shoulder complaints. The trial court advised the parties that it would consider the new evidence as well as the record made at the March 2007 trial.
evidence. Claimant now seeks review in this Court. STANDARD OF REVIEW �¶11 Issues of causation and need regarding requested medical treatment are questions of fact for the Workers’ Compensation Court. Berg v. Parker Drilling Co., 2004 OK 72, �� ¶¶ 12-13, 98 P.3d 1099, 1101. On review, this Court must sustain an order of the Workers’ Compensation Court if it is supported by any competent evidence. Id. at ¶13, 98 P.3d at 1099. See also Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 12, 684 P.2d 548, 552 (holding that “[a]ll findings of fact made in the trial tribunal’s decision under review are conclusive and binding unless they have been ascertained to lack support in competent evidence.”). Appellate review of the Workers’ Compensation Court’s legal rulings is de novo. Conaghan v. Riverfield Country Day Sch., 2007 OK 60, ¶ 7, 163 P.3d 557, 560 (“review of the workers’ compensation court’s legal rulings is plenary, independent and non-deferential”). ANALYSIS �¶12 The dispositive issues in this appeal concern the legal rulings by the trial court on Claimant’s objections to Employer’s expert medical evidence. Absent a more specific statute or rule, the Oklahoma Evidence Code applies to proceedings in the Workers’ Compensation Court. Scruggs v. Edwards, 2007 OK 6, ¶ 14, 154 P.3d 1257, 1263. The Evidence Code was “intended as a complete code on the admissibility of evidence.” 2 L. Whinery, Oklahoma Evidence, Commentary on the Law of Evidence, § 2.12, 31 (1994). The fundamental principle on admissibility is set out in section 2402 of the Code: “All relevant evidence is admissible. … Evidence which is not relevant is not admissible.” 12 O.S.2001 § 2402.
THAT claimant’s request for surgery to his LEFT SHOULDER with Dr. Dukes is denied as it is not as a result of claimant’s JULY 21, 2004 injury.
�¶13 Article VI of the Evidence Code defines which witnesses are competent to testify regarding relevant evidence: “Every person is competent to be a witness except as otherwise provided in this Code.” 12 O.S.2001 § 2601. In this case, we consider evidence from a class of witnesses who are qualified as experts by “knowledge, skill, experience, training or education” to testify as to their opinions regarding a fact in issue. 12 O.S.2001 § 2702.2
Claimant appealed to a three-judge panel, which affirmed the trial court’s order without modification, after finding it to be neither contrary to law nor against the clear weight of the
�¶14 The evaluation of expert opinion evidence involves four considerations. First, is the witness “qualified as an expert by knowledge, skill, experience, training or education.” 12
�¶10 On October 4, 2007, the trial court entered a one-page order denying Claimant’s request for surgery to his left shoulder by Dr. Dukes. Paragraph one of the order, the only substantive paragraph, states:
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O.S.2001 § 2702. Second, will the expert’s opinion “assist the trier of fact to understand the evidence or determine a fact in issue,” that is, is it relevant. Id. Third, even if relevant, should the expert’s opinion be excluded on “hearsay or other legal grounds.” Scruggs, 2007 OK 6 at ¶ 15, 154 P.3d at 1263. Fourth, does the expert’s opinion pass the test announced in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S. Ct. 2786, 2796 (1993), the purpose of which is to determine “whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue.” Scruggs, 2007 OK 6 at � 11, 154 P.3d at 1262.3 �¶15 The Daubert Court abandoned the “general acceptance” test announced in Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (1923), and previously used in the federal courts for 70 years to evaluate the admissibility of scientific evidence.4 In its place, the Supreme Court developed a four-pronged but flexible test to determine “the scientific validity and thus the evidentiary relevance and reliabilityof the principles that underlie a proposed submission . . . The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”5 Daubert, 509 U.S. 595, 113 S. Ct. at 2797. �¶16 Once properly admitted, expert witnesses can have different opinions with varying degrees of persuasive effect. Conaghan, 2007 OK 60 at ¶ 17, 163 P.3d at 563. “The fact that physicians could have admissible opinions with varying probative value prior to Daubert has not been changed by applying Daubert to proceedings in the Workers’ Compensation Court.” Scruggs, 2007 OK 6 at ¶ 21, 154 P.3d at 1265. Cross-examination and presentation of contrary evidence “are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S. Ct. at 2798. However, an appellate court is not concerned with determining the credibility of competing experts’ opinions, the existence of any competent evidence is the relevant inquiry in appeals from the Workers’ Compensation Court. Parks, 1984 OK 53 at ¶ 12, 684 P.2d at 552. I. The Legal Basis for Claimant’s Objections ¶17 During the March 2007 trial, Claimant’s attorney did not challenge the qualifications of Dr. Boone or Dr. Hallford. Consequently, they were qualified to present opinion evidence in this case. Claimant’s objections were to the 260
substance of these witnesses’ evidence and were framed in the alternative. Claimant first objected to the competency of the expert evidence and if that objection was overruled, Claimant objected to its probative value. ¶18 Historically, in proceedings in the workers’ compensation court, a “competency” objection was “directed to the exhibit’s admissibility on hearsay or other legal grounds.” Lacy v. Schlumberger Well Serv., 1992 OK 54, ¶ 6, 839 P.2d 157, 159. A “probative value” objection was “used to challenge the evidence for insufficiency as legal proof of (a) medical findings with respect to the presence or absence of compensable disability, or of (b) the compensable impairment’s rating.” Id. “Thus, an objection to the ‘competence’ of medical evidence has a separate and distinct meaning from a probative value objection.” Id. at ¶ 6, 839 P.2d at 160. However, “competency” as it relates to admissibility has a different meaning than “competent evidence” required to support a decision of the Workers’ Compensation Court. Parks, 1984 OK 53 at ¶ 12, 684 P.2d at 552. “’[C]ompetency’ when used as an objection refers to the evidence’s legal admissibility . . . the term ‘competent’ as used in the Parks test refers to the legal sufficiency, on any ground of evidence which supports an order of the Workers’ Compensation Court.” Lacy, 1992 OK 54 at ¶ 7, 839 P.2d at 160.6 “Competent evidence is that which is relevant and material to the issue to be determined.” In re Death of Gray, 2004 OK 63, ¶ 19, 100 P.3d 691, 696.7 In other words, competent evidence is that which is probative of some element of the case. Consequently, the analysis of Claimant’s competency and probative value objections invokes different evidentiary rules.8 A. The Applicable Law ¶19 Although Claimant’s shoulder injury occurred in 2004, the sole issue decided in Scruggs requires that we resolve Claimant’s evidentiary objections based on the amendments to the Workers’ Compensation Code enacted in 2005. Scruggs, 2007 OK 6 at ¶ 22, 154 P.3d at 1265 (concluding that retroactive application of 85 O.S. Supp. 2005 §§ 3(17) and 17 (A)(1) was proper because “[these] amendments made no substantive change in the law.”9 B. Dr. Hallford’s Evidence ¶20 Claimant’s competency and probative value objections to the February 2005 and February 2006 medical reports authored by Dr.
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Hallford were based on the assertion that his 2006 report did not mention the shoulder or address whether Claimant “needs treatment on the shoulder.” Claimant’s objections were overruled and these reports were admitted. ¶21 We view Claimant’s competency objection as based on relevance, arguing that Dr. Hallford’s failure to address the cause of Claimant’s shoulder injury, the essential issue in the case, renders the reports incapable of making a fact in issue more or less probable. However, Claimant’s objection regarding omissions in the patient history contained in Dr. Hallford’s reports is unsupported by the record. In both reports, Dr. Hallford discusses Claimant’s shoulder complaints. In the 2005 report, he concludes those complaints “date back to” Claimant’s 2001 injury and recommends that any claim for additional treatment to the shoulder be pursued through the prior claim. The 2006 report notes the previous history regarding the 2001 injury, and finds “no additional permanent impairment of any kind” to Claimant’s left shoulder. ¶22 Claimant’s probative value objection to Dr. Hallford’s reports is based on the same argument. Regarding the weight of evidence supporting a decision of the Workers’ Compensation Court, review on appeal is limited to the search for any competent evidence to support that decision. The existence of any competent evidence requires affirmance of the Workers’ Compensation Court’s decision. Only an argument that there is absolutely no evidence to support the decision raises the possibility that the decision may be reversed or modified. Parks, 1984 OK 53 at ¶ 9, 684 P.2d at 551. Dr. Hallford’s reports were properly admitted, and they contain some evidence to support denial of Claimant’s request for medical treatment. Consequently, the trial court did not err in also overruling Claimant’s probative value objection to Dr. Hallford’s reports. C. Dr. Boone’s Evidence ¶23 Claimant asserted three specific objections regarding the evidence provided by Dr. Boone: (1) Dr. Boone’s opinion was based on inaccurate factual history;10 (2) Dr. Boone’s opinion that Claimant’s shoulder injury was not caused by the July 2004 incident was not based objective medical findings; and (3) Dr. Boone was biased. In specific support of the last two objections, Claimant relied on two facts: (1) Dr. Boone did not refer Claimant for any additional evaluation despite testifying that he could not Vol. 81 — No. 3 — 1/30/2010
be certain that Claimant’s shoulder injury was not work-related without additional tests; and (2) Dr. Boone’s testimony that Claimant was a “spook,” and a “[f]ull of crap kind of guy.” The trial judge did not rule on the admissibility of Dr. Boone’s evidence, stating that she had not read Dr. Boone’s deposition but “if I agree with what you say, I’m not sure that that doesn’t make it incompetent. But I will consider it as a probative value objection.” ¶24 First, Dr. Boone’s admitted failure to order the necessary tests to rule out the possibility that Claimant’s shoulder injury did in fact result from the July 2004 incident may constitute the kind of omission of a critical medical finding necessary for Dr. Boone’s opinion to constitute objective medical evidence. Claimant’s brief cites LaBarge v. Zebco, 1988 OK 147, 769 P.2d 125, which held that a physician’s report that failed to meet the requirements of Rule 20 specifying ten issues that must be addressed in a medical expert’s report constituted “no evidence” supporting the employer’s defense.11 LaBarge, 1988 OK 147 at ¶ 8, 769 P.2d at 128. LaBarge is typical of a line of cases concerned with the adequacy of the evidence in the record supporting a decision of the Workers’ Compensation Court. See Garza, 2003 OK 111, 83 P.3d 851 (remanding an award as not based on competent evidence because the expert’s report omitted a critical medical fact — the discovery of a non-work-related bacterial cause for claimant’s gastritis); and Hammons, 2003 OK 7, 64 P.3d 1108 (vacating an order based on an expert’s report that failed to address any effect of claimant’s pre-existing condition contrary to requirements of controlling case law and the Guidelines of the American Medical Association made applicable pursuant to Rule 21 of the Workers’ Compensation Court Rules). Consequently, if additional tests were required to confirm Dr. Boone’s diagnosis, his report may not constitute competent evidence necessary to support the denial of further medical treatment. Parks, 1984 OK 53 at ¶ 12, 684 P.2d at 552. In that circumstance, Dr. Boone’s report would not be relevant because it would not tend to make a fact in issue more or less probable. 12 O.S.2001 § 2401. Therefore, it would not be admissible, and Claimant’s competency objection should have been sustained before the probative value of the evidence was addressed.12 ¶25 Second, whatever Dr. Boone may have meant by his assessment of Claimant as a “spook,” and a “[f]ull of crap kind of guy,” this
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record provides no basis on which to conclude that those assessments result from the scientifically reliable methodology required by Daubert. As additional support for his argument that Dr. Boone was biased and, therefore, incapable of providing the independent medical opinion he was appointed by the trial court to provide, Claimant points to Dr. Boone’s testimony that additional evaluation of Claimant’s spine “wouldn’t hurt.” However, Dr. Boone testified that, even though he had been authorized by the trial court to do so, he had not referred Claimant to his brother Dr. Tyler Boone for a spine evaluation “because I like my brother.” Claimant argues that these “findings” do not constitute objective medical evidence but reflect bias and a personality problem between Dr. Boone and Claimant. “A doctor’s opinion must be predicated on a history consisting of a set of facts substantially consistent with those in evidence, failure of which renders the report of no value.” Gaines v. Sun Refinery and Mktg., 1990 OK 33, ¶ 16, 790 P.2d 1073, 1078. If Dr. Boone’s “findings” are not “of a type reasonably relied upon by experts in the particular field,” Claimant’s competency objection should have been sustained on this basis as well. 12 O.S. Supp. 2002 § 2703. ¶26 Because the trial court failed to rule on Claimant’s objection to the admissibility of Dr. Boone’s evidence, we are unable to determine whether that evidence is part of the record considered by the trial court. Absent that ruling, this Court cannot determine what evidence may be considered in assessing the existence of any competent evidence to support the order appealed.13 The trial court is required to rule on such objections “prior to any award being entered or denied.” Lacy, 1992 OK 54, n.35, 839 P.2d 157, 164 n.35; Gaines, 1990 OK 33, n.5, 790 P.2d 1073, 1080 n.5. Consequently, the “vacuity” of Dr. Boone’s evidence and its admissibility must be specifically determined by the trial court on remand. Hammons, 2003 OK 7 at n.15, 64 P.3d 1108 at n.15. ¶27 The importance of these rulings is critical. ACI argues that the order should be affirmed for two reasons. First, ACI argues that there is competent evidence to support a finding that Claimant’s shoulder injury resulted from his pre-July 2004 injury while working for another employer. Second, it argues that there is competent evidence to support a finding that any aggravation of the pre-July 2004 injury occurred during Claimant’s subsequent term of employment with another employer. 262
¶28 ACI is correct with respect to the first of these arguments. Dr. Hallford’s reports provide that evidence. In Dr. Hallford’s opinion, Claimant’s neck and shoulder complaints “date back to” the 2001 injury. However, only Dr. Boone provides any evidence regarding the second possibility — that Claimant’s current complaints result from age-related degeneration possibly aggravated after Claimant left ACI’s employment. As Claimant correctly argues, the trial court’s order does not disclose which of these was the finding of the trial court, and the basis on which Claimant’s request for treatment was denied. If the trial court relied on Dr. Boone’s evidence, and that evidence should have been excluded, no evidence in this record supports the conclusion that Claimant’s current injury resulted from a post-ACI employment injury. “Meaningful review is facilitated by an order from the trial tribunal from which the specific basis for its decision to grant or deny a claim can be determined.” Dunkin v. Instaff Personnel, 2007 OK 51, ¶ 15, 164 P.3d 1057, 1061. Fundamentally, the trial court’s order lacks the specificity required by Dunkin, thus preventing meaningful review by the panel and this Court. For this additional reason, this case must be remanded for further proceedings. CONCLUSION ¶29 The order of the Workers’ Compensation Court three-judge panel is vacated. This case is remanded to the trial court for further proceedings consistent with this Opinion. ¶30 VACATED AND REMANDED FOR FURTHER PROCEEDINGS. GABBARD, P.J., concurs, and RAPP, J., concurs in result. 1. The order appointing Dr. Bradford Boone as an IME authorized him to “refer [Claimant] to Dr. Tyler Boone for evaluation of neck and back if necessary, or for diagnostics.” The record indicates that the two doctors are brothers. The order further authorized Dr. Bradford Boone to perform “diagnostic testing that is reasonable and necessary to respond to the issues specified in this order.” 2. With one exception, witnesses who are not qualified as experts are only competent to testify regarding those matters about which they have personal knowledge. 12 O.S. Supp. 2002 § 2602. The exception is provided in § 2701 of the Evidence Code permitting a lay witness to testify to an opinion that is rationally based on the witness’s perception, helpful to an understanding of the witness’s testimony or the determination of a fact in issue and not based on scientific, technical or specialized knowledge. 3. In 2005, 85 O.S. Supp. 2005 § 17 (A)(1) was amended to provide that claims for permanent disability must be supported by “objective medical evidence,” and that the admissibility of expert opinions in Workers’ Compensation Court proceedings is to be determined pursuant to “the criteria of Federal Rule of Evidence 702 and all U.S. Supreme Court case law applicable thereto.” 85 O.S. Supp. 2005 § 3(17). The version of Federal Rule 702 referred to in section 3(17) is the 2000 version amended in response to United States Supreme Court decisions in Daubert and Kumho Tire Co., Ltd. v. Patrick Carmichael et al., 526
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U.S. 137, 119 S. Ct. 1167 (1999). “Daubert and Kumho are thus applicable to amended § 3(17).” Scruggs, 2007 OK 6 at ¶ 10, 154 P.3d at 1262. 4. Kumho extended the Daubert test to any non-scientific area of special knowledge, skill, experience, training or education. 5. Briefly stated, those factors are: (1) has the methodology been tested, (2) has it been subject to peer review, (3) is there a known or potential error rate, and (4) how is it regarded by other experts in field. Daubert, 509 U.S. at 593-95, 113 S. Ct. at 2796-97. 6. “[L]oose usage of the term ‘competence’ and its derivatives” may confuse the often similar but nonetheless proper analysis applicable to these separate concepts. Lacy, 1992 OK 54 at ¶ 5, 839 P.2d at 159. 7. The relevance or competence in the Workers’ Compensation Court sense of an expert’s opinion may be challenged in two ways. First, the opposing party may object to the legal sufficiency of the expert’s opinion arguing “the evidence offered is [not] probative of the elements the evidence seeks to establish.” Scruggs, 2007 OK 6 at ¶ 15, 154 P.3d at 1264. Second, even without a proper objection, incompetent but improperly admitted expert evidence may be reviewed on appeal to determine if “there is a vacuity of proof necessary to support an award.” Hammons v. Oklahoma Fixture Co., 2003 OK 7, n.15, 64 P.3d 1108 n.15. Expert evidence may be incompetent in the sense that it lacks any probative value for various reasons. It may fail to account for a critical fact necessary to support the trial court’s decision. Id. at ¶ 6, 64 P.3d at 1110. It may be “too indefinite for a probative medical assessment of causation.” Zebco v. Houston, 1990 OK 113, ¶ 9, 800 P.2d 245, 247. And, “evidence which is not in substantial compliance with [Workers’ Compensation Court] Rule 20 is not competent evidence upon which the trial court may base its conclusion.” Lacy, 1992 OK 54 at ¶ 11, 839 P.2d at 161. 8. “A Daubert objection is similar to the well-known competency objection in the Workers’ Compensation Court in that both objections determine the admissibility of evidence. A Daubert objection is also similar to the well-known probative-value objection in that both involve an inquiry whether the evidence offered is probative of the elements the evidence seeks to establish.” As the Scruggs Court explained in footnote 12, the probative value analysis necessary to determine admissibility in the Daubert sense concerns “whether an expert’s testimony possesses the quality of having the effect of proof, which in turn is based upon whether the expert’s reasoning or methodology underlying the testimony is valid . . . .” Consequently, depending on the basis for the objection, a competency and a probative value objection may raise the same issue. For example, lie detector evidence from an expert test administrator although clearly probative of facts in issue is nonetheless inadmissible because the reliability of the test has not been scientifically established. Paxton v. State, 1993 OK CR 59, ¶ 42, and n.3, 867 P.2d 1309, 1323 and n.3. That type of evidence in a civil case is distinguishable from expert evidence that “fails to contain a critical element” and therefore constitutes no proof in the case. City of Norman v. Garza, 2003 OK 111, ¶ 14, 83 P.3d 851, 855. Daubert excludes the former because although probative the reliability of the methodology has not been sufficiently established. However, both Daubert and § 2402 exclude the latter because an expert opinion that fails to consider an essential element has no probative value and, therefore, is not relevant to the issues in the case. 9. That observation is particularly applicable in this case because the year before Claimant’s alleged injury the Oklahoma Supreme Court’s decision in Christian v. Gray, 2003 OK 10, 65 P.3d 591, adopted the Daubert/Kumho test for application in Oklahoma courts and no contrary rule or statute applied to the Workers’ Compensation Court. In Scruggs, the Daubert/Kumho standard was applicable because the case would be tried after the 2005 amendments became effective, even though the claimant had been injured prior to the effective date of the amendments. Scruggs, 2007 OK 6 at ¶ 13, 154 P.3d at 1263. 10. Dr. Boone testified that in his opinion Claimant’s shoulder injury did not result from the July 21, 2004 incident because Claimant did not complain about shoulder pain until 14 days or more after that date, very unlikely in Dr. Boone’s view for an injury immediately perceivable. As Claimant correctly notes, the record establishes that he complained of shoulder pain when he first attended physical therapy six days after the incident. The fact that Dr. Boone’s medical history in this regard is inaccurate and contrary to the record, however, does not establish its inadmissibility. Dr. Boone may well have reached the same conclusion based on a six-day delay in Claimant’s report of his shoulder injury. Dr. Boone’s mistake in Claimant’s medical history is only that, a mistake. It may affect the credibility of Dr. Boone’s opinion but it does not preclude the admission of that opinion. “[P]hysicians [can] have admissible opinions with varying probative value.” Conaghan, 2007 OK 60 at ¶ 17, 163 P.3d at 563. Further, it is the duty of “the crossexaminer either to elicit from the witness the failure to assume a fact conceded to be material or to show that the omitted fact is indeed indispensable so that its omission from the range of facts to be assumed is fatal to the probative value of the expert’s opinion.” Bostick
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Tank Truck Serv. v. Nix, 1988 OK 128, ¶ 9, 764 P.2d 1344, 1348. Claimant’s first objection to Dr. Boone’s evidence does not raise a legal issue, it is only a challenge to the evidentiary quality of Dr. Boone’s opinion. This argument may be raised on remand. 11. The current version of Rule 20 “encourages but does not require the report to include” the factors listed in the Rule. 85 O.S. Supp. 2008, ch. 4, app. 12. “Evidence which is not relevant is not admissible.” 12 O.S.2001 § 2402. Even if improperly admitted, Dr. Boone’s report may not constitute competent evidence because it lacks any probative value and could not support the trial court’s decision. See Garza, 2003 OK 111 at ¶ 15, 83 P.3d at 855. 13. Cf., Davis v. B.F. Goodrich, 1992 OK 14, n.2, 826 P.2d 587, 595 n.2 (Wilson, J., dissenting) (“Any attempt to arrive at a conclusion as to the evidence considered by the trial court would be mere speculation.”).
2009 OK CIV APP 105 FINANCE & INVESTMENT CO., LTD., an Oklahoma limited liability company; THOMAS O. GOLDSWORTHY, an individual; FREMONT EXPLORATION, INC., an Oklahoma corporation; and FREMONT INVESTMENT COMPANY, an Oklahoma corporation, Plaintiffs/Appellants, v. UMA, L.L.C., an Oklahoma limited liability company; JACOB TECHNOLOGIES, INC., an Oklahoma corporation d/b/a SABRE TECHNOLOGY, INC., Defendants/Appellees, and SAINT ANDREWS PROFESSIONAL PARK, INC., an Oklahoma corporation, Defendant/ Appellee, and THE GREENS HOMEOWNERS ASSOCIATION, INC., a non-profit corporation, Third-Party Plaintiff. Case No. 105,914; (consolidated with 105,963). May 18, 2009 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE BRYAN C. DIXON, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS Allen Campbell, David Sturdivant, KIRK & CHANEY, Oklahoma City, Oklahoma, for Plaintiffs/Appellants Robert Lee Rainey, Patricia A. Kirch, Joseph C. Schubert, RAINEY MARTIN, LLP, Oklahoma City, Oklahoma, for Defendants/Appellees, UMA, L.L.C. and Jacob Technologies, Inc. d/b/a Sabre Technology Stephen L. Olson, Jeffrey I. Crain, PIERCE COUCH HENDRICKSON BAYSINGER & GREEN, L.L.P. Oklahoma City, Oklahoma, for Defendant, Saint Andrews Professional Park, Inc. JOHN F. FISCHER, JUDGE:
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¶1 Finance & Investment Company, Thomas Goldsworthy, Fremont Exploration and Fremont Investment (collectively Finance), appeal from the district court’s judgment granting the motions for summary judgment filed by UMA, L.L.C., Jacob Technologies, Inc. (collectively UMA), and Saint Andrews Professional Park, Inc. (Saint Andrews). The appeals have been consolidated and assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S. Supp. 2008, ch. 15, app. 1, and the matter stands submitted without appellate briefing. Based on our review of the record on appeal and applicable law, we affirm in part, reverse in part and remand for further proceedings. BACKGROUND FACTS ¶2 Finance and UMA are owners of real property located in Saint Andrews Professional Park (Park), and members of Saint Andrews. Property within the Park is subject to the property rights set out in the Amended and Restated Declaration of Conditions, Covenants and Restrictions for the Saint Andrews Professional Park dated September 26, 1996 (Declaration). The restrictive covenants in the Declaration provide that property within the Park “shall be used and occupied only for business, office, or medical purposes,” and prohibit non-incidental manufacturing, industrial, warehouse and retail uses, among others. Declaration at ¶ 4. The owners of property within the Park agree that they shall strictly comply with the restrictive covenants. Declaration at ¶ 11. The recitation section of the Declaration provides that the “covenants, conditions, restrictions, use limitations, obligations, and provisions [of the Declaration] shall be deemed to run with the land” within the Park. Paragraph 26.5 of the Declaration provides that not only do the restrictive covenants “run with the land,” but also that they “bind the [Park] and shall inure to the benefit of and be enforceable by [Saint Andrews] or any member.” ¶3 In its amended petition, Finance alleges that UMA is conducting a business within the Park in violation of the restrictive covenants contained in the Declaration. Finance sued UMA and Saint Andrews, the property owners’ association charged with enforcing the restrictive covenants in the Park. Finance’s amended petition asserts two theories of recovery against UMA. First, Finance alleges that UMA’s violations of the restrictive covenants in the Declaration “have created an annoyance and nuisance to the Plaintiffs” which has 264
diminished the value of Finance’s property and the value of its use and occupancy. Second, Finance contends that UMA has tortiously interfered with Finance’s contracts, business and prospective economic advantage and the use and occupancy of Finance’s property. Finance alleges that it has been damaged in excess of $10,000 and seeks a permanent injunction to abate UMA’s alleged violations of the Declaration. Finance alleges that Saint Andrews has breached its duty to enforce the restrictive covenants in the Declaration. Finance also seeks damages in excess of $10,000 against Saint Andrews and an order directing Saint Andrews to enforce the restrictive covenants. STANDARD OF REVIEW ¶4 We review a trial court’s grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, we examine the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears “an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.” Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. The summary process requires that we determine whether the record reveals only undisputed material facts supporting only a single inference that favors the movant’s motion for summary judgment. Id. Further, when considering a motion for summary judgment, the evidence and the inferences to be drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50. “Only if the court should conclude that there is no material fact in dispute and the law favors the movant’s claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.” Copeland, 2000 OK 36 at ¶ 8, 4 P.3d at 699. ¶5 Finally, in reviewing summary judgment not only must we view all inferences and conclusions to be drawn from the evidentiary materials in the light most favorable to the party opposing the motion, but also once the movant has shown the absence of disputed material facts and entitlement to judgment on that record, the burden shifts to the defending party to show the existence of a triable issue. Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 106; Hughey v. Grand River Dam Auth., 1995 OK 56, ¶ 8, 897 P.2d 1138, 1143. A party opposing
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summary judgment may not rely on appeal “on any fact or material that is not referred to or included” in the party’s response to a motion for summary judgment. Okla. Dist. Ct. R. 13(b), 12 O.S. Supp. 2008, ch. 2, app. DISCUSSION ¶6 The district court granted UMA’s motion for summary judgment on three grounds: (1) The restrictive covenants in the Declaration constitute a contract, an action for the breach of which is subject to the five-year statute of limitations applicable to written contracts, and Finance knew or should have know more than five years prior to the filing of its suit about UMA’s alleged covenant violations, therefore its claim was time barred; (2) UMA’s business activities are lawful and cannot, therefore, create a nuisance; and (3) Finance has failed to establish a tortious interference claim because it has failed to prove any damage from lost profits, loss of contracts or loss of business relationships. As a result, the district court concluded that Finance had failed to show that it was entitled to monetary damages or injunctive relief. With the exception of the tortious interference issue, the grounds on which the district court relied in granting Saint Andrews’s motion are the same. I. The Restrictive Covenant Claim ¶7 The facts relevant to the statute of limitations issue include letters written by or on behalf of Finance in late 1998 and mid-1999. These letters complain about truck traffic connected to the business operated by UMA in the Park. On the basis of this undisputed evidence, the district court concluded that the information known to Finance, as disclosed in those letters, was sufficient to start the running of the limitations period. In reliance on Russell v. Williams, 1998 OK CIV APP 135, 964 P.2d 231, the district court concluded that the restrictive covenants Finance sought to enforce constituted a contract subject to the five-year statute of limitations of 12 O.S.2001 § 95(1). Consequently, the court concluded that Finance’s suit filed in April 2005 was filed beyond the time permitted by section 95(1) and, therefore, barred. ¶8 Russell decided a dispute between adjoining property owners arising from the encroachment of a structure onto the property of other land owners and its location beyond the setback restrictions in restrictive covenants applicable to the property. The plaintiff sought removal of the structure from his property and attorney fees. It was undisputed that the Vol. 81 — No. 3 — 1/30/2010
encroachment had occurred more than five years prior to the filing of plaintiff’s suit. The Russell court affirmed summary judgment on the breach of restrictive covenant claim because: “A covenant is in the nature of a contract and when a covenant is breached it confers the same right of action as for any other contract.” Russell, 1998 OK CIV APP 35 at ¶ 7, 964 P.2d at 234 (citing Ball v. Coyle, 1925 OK 101, 233 P. 750).1 ¶9 Although the Russell court applied a fiveyear statute of limitations to the breach of covenant claim, the fifteen-year prescription period was held to be the relevant period regarding the encroachment claim. Because the plaintiff was not seeking damages for the encroachment, which the court found would have been barred by the two-year statute of limitations applicable to trespass claims, and because the evidence was not clear with respect to when the encroachment began, summary judgment in this respect was reversed.2 ¶10 In this case, the district court concluded that Finance’s claim for monetary damages resulting from breach of the restrictive covenants was subject to the five- year statute of limitations of 12 O.S.2001 § 95(1), and that the statute of limitations applicable to Finance’s tortious interference claims was the two-year limitations period of 95 O.S.2001 § 95(3). Because we view the statute of limitations analysis differently than the Russell court, we find summary judgment improper. ¶11 The Russell court correctly states that a restrictive covenant is a contract enforceable as any other contract. However, that particular type of contract creates an interest in real property. “It has been said that a restriction arising from a restrictive covenant is not an estate in land, as is a legal easement, but is purely a creature of equity arising out of contract.” Van Meter v. Manion, 1934 OK 615, ¶ 10, 38 P.2d 557, 559. As explained in O’Neil v. Vose, 1944 OK 26, 145 P.2d 411, relied on by Finance: [W]e are not unmindful of the legal right of owners of adjoining properties to bind themselves by enforceable contract, restraining the use of their property for an unlimited period of time, wherein each separate owner grants to the other owners a right in his property in the nature of an easement and which shall run with the land and be binding upon the several property owners as well as all future owners, who succeed to title with actual or con-
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structive notice of such contract or agreement and its terms. Id. at ¶ 14, 145 P.2d at 414. Although a restrictive covenant is to be interpreted to effect the intent of the parties,3 the Declaration clearly establishes covenants that provide continuing obligations for owners of property within the Park, and those obligations may be enforced by Saint Andrews, the property owners, or their successors and assigns. ¶12 Finance has alleged that UMA violated the restrictive covenants beginning in 1998 and that the violations continue. We agree that Finance could have sued for the damages resulting from the alleged breach of the covenants in 1998 and that 12 O.S.2001 § 95(1) is the applicable statute of limitations to the breach of covenant claim. We do not agree that any claim for damages was barred five years thereafter, nor do we agree that Finance would be unable to enforce the covenants after that period of time. Because UMA’s breach is alleged to be continuing, “the right to maintain an action for its breach continues so long as the breach continues and plaintiff is damaged thereby.” Indian Territory Illuminating Oil Co. v. Rosamond, 1941 OK 410, ¶ 5, 120 P.2d 349, 352 (holding that an implied covenant in an oil and gas lease to protect the lessor from drainage was a continuing covenant and that an action for breach could be maintained beyond the limitations period although damages would be limited to the five years preceding the filing of the suit). See also Bowman v. Oklahoma Natural Gas Co., 1963 OK 197, 385 P.2d 440. ¶13 O’Neil requires the same analysis. The property owners in O’Neil successfully enforced restrictive covenants limiting the affected property to residential use.4 Although the non-conforming use had begun more than ten years prior to the filing of the plaintiffs’ suit, the defendants’ statute of limitations argument was specifically rejected: [C]ovenants restricting the use of property are generally held to be covenants running with the land, . . . such covenants are binding upon the successors in interest to the parties, although there was no privity of interest between such successors and the original parties. The portion of the restricted agreement would be as binding upon subsequent owners as on the original parties to the agreement. O’Neil, 1944 OK 26 at ¶ 29, 145 P.2d at 417. 266
¶14 From these authorities, it is clear that restrictive covenants, although created by private contract, create an interest in the property affected. That property interest is protectable as are other property interests. Consequently, an action to enforce restrictive covenants is an equitable action, which may be subject to equitable defenses,5 but it is not subject to a statute of limitations defense. Nonetheless, the applicable statute may limit the time period for which monetary damages may be recovered. ¶15 Regarding UMA’s use of its property, the facts are in dispute. The truck traffic generated by UMA’s business operations and the nature of the business conducted by UMA may or may not violate the Park restrictive covenants, therefore, Saint Andrews may or may not have a duty to enforce those covenants. The district court made no finding as to those issues and they cannot be resolved through the summary judgment procedure on the basis of this record. However, if UMA’s conduct does violate those covenants, Finance may be entitled to injunctive relief requiring UMA’s compliance with the covenants, subject to any laches or other equitable defense asserted by UMA and/or Saint Andrews. II. The Nuisance Claim ¶16 In addition, Finance has alleged that UMA’s operations have created a nuisance. That circumstance may exist regardless of whether UMA is operating a business in violation of the restrictive covenants, and the fact that UMA’s business operations are otherwise lawful does not determine that issue. See Big Four Foundry Co. v. Hagens, 1946 OK 201, 172 P.2d 322 (holding that negligent operation of an otherwise lawful business may constitute a nuisance). Title 50 O.S.2001 § 1 defines a nuisance: A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either: First. Annoys, injures or endangers the comfort, repose, health, or safety of others; ... Fourth. In any way renders other persons insecure in life, or in the use of property… For example, the operation of an otherwise lawful sanitation plant but with insufficient capacity or inadequate procedures may constitute a nuisance. See Theatre Estates, Inc. v. Village, 1969 OK 183, 462 P.2d 651. Likewise, operation of a salvage yard business, though
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“of itself lawful,” may constitute a nuisance. Winningham v. Rice, 1955 OK 108, ¶ 7, 282 P.2d 742, 744. UMA has a duty to comply with the restrictive covenants. Declaration at ¶ 11. Its failure to perform that duty may constitute a nuisance. Finance may sue for damages and/ or abatement of a private nuisance. 50 O.S.2001 §§ 13-14. ¶17 Smilie v. Taft Stadium Board Of Control, 1949 OK 42, 205 P.2d 301, relied on by UMA and Saint Andrews, does not stand for the proposition that a lawful business or the traffic associated with it can never constitute a nuisance. In Smilie, the Supreme Court distinguished between a nuisance per se and a nuisance in fact. It being conceded that the operation of the race track was not a nuisance per se, the question on appeal was whether the trial court’s determination, on the basis of conflicting evidence, that the home owners had failed to prove that the noise produced by race track operations during a limited time period constituted a nuisance was against the weight of the evidence. The Supreme Court concluded it was not and affirmed the trial court’s denial of an injunction. Smilie shows that summary judgment on the nuisance issue in this case was improper because the nature and affect of UMA’s operations and associated truck traffic is disputed. ¶18 With respect to the traffic issue, Smilie is distinguishable. The race track owners had “no authority or control over the streets of the city nor [had] they any power to regulate or prohibit parking thereon.” Id. at ¶ 17, 205 P.2d at 305. Here, the parties do have some control by virtue of the restrictive covenants. See, e.g., Declaration at ¶ 4.5. These parties have granted each other a mutual interest in the other’s property by private contract to avoid the “plagues of city dwellers” by forming the Park and restricting within its boundaries the flow of traffic otherwise permitted on public streets. Id. at ¶ 18, 205 P.2d at 305. ¶19 We find Moneypenney v. Dawson, 2006 OK 53, 141 P.3d 549, more directly on point. That case held it was error to dismiss a land owner’s petition based on the statute of limitations because it was unclear whether the water damage resulting from the defendant’s alleged alteration of the natural water drainage was permanent or temporary. “As a general proposition, ‘[w]hen a cause of an injury is abatable either by an expenditure of labor or money, it will not be held permanent.’” Further, both temporary and permanent damage may be Vol. 81 — No. 3 — 1/30/2010
caused or arise from a temporary, i.e., abatable nuisance or trespass.” Id. at ¶ 9, 141 P.3d at 553 (citations omitted). See also N.C. Corff Partnership, Ltd. v. OXY USA, Inc., 1996 OK CIV APP 92, ¶ 15, 929 P.2d 288, 293 (correctly stating, according to the Supreme Court in Moneypenny, the general rule that the two-year statute of limitations applicable to actions for temporary damages resulting from a nuisance does not bar the action but only recovery of damages occurring more than two years prior to filing of the suit). ¶20 The evidence is conflicting as to whether UMA’s trucking operations rise to the level of a nuisance. Consequently, Finance’s nuisance claim cannot be resolved on summary judgment. III. The Tortious Interference Claim ¶21 The facts are not in dispute with respect to Finance’s claim for tortious interference with contract and tortious interference with prospective economic advantage. As Finance concedes in its response to UMA’s motion for summary judgment, Finance “cannot show any lost contracts or lost profits.” The existence of a contract or business relationship is an element of the first claim,6 just as the existence or expectation of a valid business relationship is an element of the second.7 The authorities relied on by Finance with respect to this issue support its nuisance claim and the method by which it can establish damages related to that claim. They do not establish that one claiming tortious interference with a contract or prospective business advantage is relieved from proving the existence of a contract or the expectation of a business relationship. The district court correctly granted UMA’s motion for summary judgment in this respect. CONCLUSION ¶22 The judgment of the district court with respect to Finance’s tortious interference claim is affirmed. In all other respects, the judgment is reversed, and this case is remanded for further proceedings consistent with this Opinion. ¶23 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. GABBARD, P.J., and RAPP, J., concur. 1. The Court in Ball held that a covenant in an assignment of an oil and gas lease stating that the sellers had title to the lease with the right to sell it and that the lease was free of liens and encumbrances was not a warranty of title and could not defeat a mortgage recorded prior to the assignment. Ball, 1925 OK 101 at ¶ 4, 233 P. at 751.
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2. The Russell court also held that the evidence failed to establish as a matter of law that the plaintiff’s encroachment claim was barred by laches. Citing Fairlawn Cemetery Ass’n v. First Presbyterian Church, U.S.A. of Oklahoma City, 1972 OK 66, 496 P.2d 1185, the court concluded that the encroachment was a continuing trespass that the trial court could order removed. Fairlawn found that a dirt fill encroaching on the plaintiff’s property was a trespass rather than a nuisance. Because suit was filed more than two years after the encroachment occurred, plaintiff’s claim for damages to a fence caused by the dirt fill was barred by the two- year statute of limitations applicable to trespass claims. Nonetheless, the plaintiff was entitled to an injunction requiring the defendant to remove the dirt fill from the plaintiff’s property. 3. O’Neil, 1944 OK 26 at ¶ 0, 145 P.2d at 411 (Syllabus 2). The parties do not dispute the interpretation and meaning of the Declaration. Their dispute is confined to whether the activities of UMA violate the terms of the Declaration. 4. During oral argument on the summary judgment motions, UMA sought to distinguish O’Neil because one of the covenants prohibited the leasing of servants quarters to “parties of African descent.” Clearly that aspect of the restrictive covenants would be unenforceable. Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031 (1953). That fact, however, does not undermine the authority of the opinion with respect to its analysis of restrictive covenants, the manner in which they are created, the effect of restrictive covenants on real property interests, and the holding of the opinion affirming a permanent injunction enforcing a restrictive covenant preventing the operation of a boarding house in a residential area. 5. In addition to the statute of limitations defense, the defendants’ laches defense was rejected in O’Neil as well. The property owners only sought to prevent the continued use of the property in violation of the restrictive covenants, rather than to enjoin the maintenance of improvements erected in violation of the covenants or to recover monetary damages for the violation. The defendants did not show that they were surprised or would suffer injury because of the plaintiffs’ delay in bringing their suit. Consequently, the defendants failed to prove their laches defense and the trial court’s injunction was affirmed. 6. See Mac Adjustment, Inc. v. Prop. Loss Research Bur., 1979 OK 41, 595 P.2d 427. 7. See Boyle Servs., Inc. v. Dewberry Design Group, Inc., 2001 OK CIV APP 63, 24 P.3d 878.
2009 OK CIV APP 106 CARROL L. BUNCH, Plaintiff/Appellee, v. RUSSELL E. TERPENNING d/b/a SIGNATURE REAL ESTATE & FINANCE, GOLDEN YEARS INVESTMENTS L.L.C., KELLER HEATING AND AIR CONDITIONING INC., and DAN KELLER, Defendants/Appellants. Case No. 106,725. November 19, 2009 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE DANIEL OWENS, TRIAL JUDGE AFFIRMED Michael L. Loyd, MICHAEL L. LOYD & ASSOCIATES, Bethany, Oklahoma, for Plaintiff/ Appellee Jerome S. Sepkowitz, DERRYBERRY & NAIFEH LLP, Oklahoma City, Oklahoma, for Defendants/Appellants JOHN F. FISCHER, JUDGE: ¶1 Russell E. Terpenning d/b/a Signature Real Estate & Finance (Terpenning) and Golden 268
Years Investments L.L.C. (Golden Years) appeal the decision of the district court finding a loan from Terpenning to Carrol L. Bunch void pursuant to the provisions of the Oklahoma Consumer Credit Code, (Code) 14A. O.S.2000 2008 §§ 1,-101 through 9-903, and granting summary judgment to Bunch. Based on our review of the record on appeal and applicable law, we affirm. BACKGROUND ¶2 In February 2005, Bunch contracted with Keller Heating and Air Conditioning Inc. (Keller) to improve the heating, air conditioning and hot water services of his residence in Oklahoma City. Bunch claimed he was attracted to Keller by an offer to finance the improvements he desired. The record contains a Keller flier, stating “if you have been turned down in the past due to credit problems . . . Call Me! I can help you get a new reliable and efficient unit.” Bunch subsequently met with Keller owner Dan Keller, and, on February 15, 2005, signed a $20,000 note between himself and Terpenning, secured by a twenty-year mortgage on Bunch’s residence (the Bunch Loan). ¶3 The note recited an annual interest rate of 15.99%, and the mortgage stated that the note provided for monthly installments of principal and interest. Four days later, Terpenning assigned the $20,000 note and mortgage to Golden Years. A February 13, 2005 e-mail between Terpenning and Dan Keller describes distribution of the loan proceeds as follows: Golden Years was to pay $15,000 for the assignment of the $20,000 note. From this $15,000 would come a $5,900 cash advance to Bunch, $495 in loan fees, $2,200 for materials for the heat and air-conditioning work, and “approximately $6,405 profit.” ¶4 By mid-April 2005, Bunch was dissatisfied with the progress and quality of the work Keller was performing, and asked Terpenning to return the money paid to Keller so that he could secure an alternative contractor to complete the work. In July 2006, still dissatisfied, Bunch asked Terpenning to return the monthly payments he had made on the note. In March 2007, Bunch sued Terpenning and Golden Years, alleging they had violated the Code by making and attempting to collect a supervised consumer loan while not licensed in Oklahoma as supervised lenders. Bunch further alleged that Keller Inc. had breached the air-conditioning installation contact.1 Five days after Bunch
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filed his suit, Golden Years filed a foreclosure action against Bunch’s property alleging default on the note it had purchased. The foreclosure action was consolidated with this case.
question of law which we review de novo, without deference to the lower court. Twin Hills Golf & Country Club, Inc. v. Town of Forest Park, 2005 OK 71, ¶ 5, 123 P.3d 5, 6.
¶5 Bunch and Terpenning subsequently filed motions for summary judgment focusing on whether the $20,000 loan was a “supervised consumer loan” pursuant to the Code. Following these motions, the district court held that the Bunch Loan was a supervised consumer loan, and reserved the issues of damages, costs and fees for a future evidentiary hearing. The district court’s subsequent judgment found that (1) Terpenning violated Section 3-502 of the Code by making a supervised consumer loan to Bunch without the appropriate licensing; (2) Golden Years violated Section 3-502 by taking assignment of, and attempting to collect the loan; and, (3) Bunch was not required to pay the remaining principal and interest on the loan pursuant to Section 5-202(2) of the Code, but could not recover any payments he had previously made. The district court dismissed Golden Years’s foreclosure action. Terpenning appeals the decision that the Bunch loan was a supervised consumer loan and the consequent voiding of Bunch’s obligation to repay it. Golden Years appeals the district court’s dismissal of its foreclosure action.
DISCUSSION
STANDARD OF REVIEW ¶6 We review a trial court’s grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, we examine the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears “an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.” Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. The summary process requires that we determine whether the record reveals only undisputed material facts supporting only a single inference that favors the movant’s motion for summary judgment. Id. Further, when considering a motion for summary judgment, the evidence and the inferences to be drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶14, 792 P.2d 50. ¶7 This case also involves a question of statutory construction. Statutory construction is a Vol. 81 — No. 3 — 1/30/2010
¶8 Terpenning and Golden Years’s appeals raise eleven assignments of error. However, they assert essentially three legal issues: (1) whether the Bunch Loan was a “supervised consumer loan;” (2) whether Terpenning violated the Code by making the loan; (3) and whether Golden Years violated the Code by taking assignment of the loan and/or filing the foreclosure action. I. Supervised Loans and Consumer Loans ¶9 Terpenning’s fundamental allegation of error is that the district court incorrectly found the Bunch Loan to be a “supervised loan.” “Unless a person is a supervised financial organization or has first obtained a license from the Administrator authorizing him to make supervised loans, he shall not engage in the business of: (1) making supervised loans . . . .” 14A O.S.2001 § 3-502. A supervised loan is “a consumer loan in which the rate of the loan finance charge exceeds ten percent (10%) per year as determined according to the provisions on loan finance charge for consumer loans.” 14A O.S.2001 § 3-501(1). Section 3-104 of the Code defines a consumer loan as: [A] loan made by a person regularly engaged in the business of making loans in which: (1) the debtor is a person other than an organization; (2) the debt is incurred primarily for a personal, family or household purpose; (3) either the debt is payable in installments or a loan finance charge is made; and (4) either the principal does not exceed Forty-five Thousand Dollars ($45,000.00) or the debt is secured by an interest in land. Terpenning is not a supervised financial organization nor is he licensed to make supervised loans. Further, Terpenning does not dispute that the Bunch Loan was a consumer loan. He argues, however, that he had made only six consumer loans in 2005, and therefore was not “a person regularly engaged in the business of
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making loans.” The record establishes that Terpenning made ten loans that would satisfy the definition in § 3-104. Nonetheless, Terpenning contends that four of those loans were not consumer loans, and should not be considered when determining if he regularly engaged in the business of making loans. Although we find nothing in the statute requiring the exclusion of non-consumer loans when determining whether a lender is regularly engaged in the business of making loans, for the purposes of this Opinion, we will treat Terpenning as having made only six qualifying loans in 2005. A. Regular Engagement Pursuant to Case Law ¶10 Terpenning relies on Barnes v. Helfenbein, 1976 OK 33, 584 P.2d 1014, and Rea v. Wichita Mortg. Corp., 747 F.2d 567 (10th Cir. 1984), to demonstrate that his activity did not constitute “regular engagement” in the business of making loans. Terpenning argues that his “primary business” was not making loans and that Barnes and Rea indicate that the number of loans relative to a party’s other business activities is a factor in determining the regular engagement issue. We find that neither case supports this argument.2 Rea held that a lender that is not subject to regulation pursuant to the Oklahoma Savings and Loan Code of 1970, (at that time 18 O.S.1981 §§ 381.1-381.86), may nonetheless violate the supervised loan provisions of the OCCC.3 Barnes affirmed the trial court’s finding that a private individual who had “made infrequent small loans in the past” was not regularly engaged in the business of making loans.4 1976 OK 33 at ¶ 2, 584 P.2d 1014. ¶11 A review of case law from Oklahoma and other jurisdictions reveals no case determining what number of loans constitutes regular engagement in the business of making loans.5 Bunch argues that the definition of the regular engagement in the business of making loans can be determined from the definition of the “regular extension of consumer credit” found in the Code. We find this argument persuasive. B. “Regular Engagement” Pursuant to Regulation Z ¶12 The provisions of the Code are supplemented by regulations promulgated by the Oklahoma Administrator of Consumer Affairs. See 14A O.S.2001 & Supp. 2003 §§ 6-103 and 6501 through 6-510. A footnote to the regulation commonly referred to as “Regulation Z,” codified at O.A.C tit. 160 ch. 45, states at Section 160:45-1-2 n.3 (“definitions and rules of construction”) that: 270
A person regularly extends consumer credit only if it extended credit . . . more than 25 times (or more than 5 times for transactions secured by a dwelling) in the preceding calendar year. If a person did not meet these numerical standards in the preceding calendar year, the numerical standards shall be applied to the current calendar year. Section 160:45-1-2.(4) of the same regulation states that “Footnotes have the same legal effect as the text of the chapter.”6 1. Regulation Z and Consumer Loans ¶13 Terpenning argues that Regulation Z defines those involved in the provision of goods on credit for the purposes of section 2104 of the Code, but not “regular engagement in the business of making loans” for the purposes of section 3-104. In adopting Regulation Z, the Oklahoma Legislature expressed an intent that consumer credit transactions should conform to the policies of the Federal Consumer Protection Act. Code section 1-102(f). Regulation Z “conforms to the regulations issued by the Federal Reserve Board to implement the Federal Consumer Protection Act . . . commonly known as the ‘Truth in Lending Act [TILA].’” Dalton v. City of Tulsa, 1977 OK 25, ¶ 7, 560 P.2d 955, 956; O.A.C. §160:45-1-1. In Maltos v. Bison Fed. Credit Union, 1994 OK CIV APP 83, n.4, 879 P.2d 1254, 1257 n.4, this Court stated that “[b]ecause the wording of the Oklahoma disclosure liability statute is virtually identical to the federal disclosure liability provision, we believe it is appropriate to give federal authority construing TILA some weight in determining the proper interpretation of our statute.” We find the approach suggested by Maltos persuasive.7 2. Federal Regulation Z ¶14 Only certain “creditors” are required to make disclosures to consumers pursuant to TILA. TILA, (15 U.S.C. § 1602(f)), defines a “creditor” as “a person who regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit . . . .” Federal Regulation Z, (12 C.F.R. § 226.2 (17)) defines the “regular extension of consumer credit” for the purposes of TILA as activity exceeding the 25/5 standard set out in O.A.C. § 160:45-1-2 n.3. ¶15 TILA section 1602(f) is clear: “consumer credit” includes the making of loans, and the extension of credit for goods.” It is evident that the TILA disclosure requirements and the
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accompanying Regulation Z provisions apply to credit transactions involving goods and loans. Further, a review of cases decided pursuant to TILA and other states’ consumer credit codes shows that federal and state courts have cited the “25/5” language of Regulation Z in cases involving the disclosure requirements for consumer loans, as well as consumer credit transactions.8 Analysis of the Code further indicates that Oklahoma Regulation Z operates in the same fashion as the federal regulation Z. 3. The Code and Regulation Z ¶16 Comparing the definition of consumer credit from Code section 2-104 and the definition of consumer loans from section 3-104, the Oklahoma Legislature defined the two in closely related terms.9 Further, comparing the Code consumer credit disclosure regulations of sections 2-301 through 2-313 with the identically titled consumer loan disclosure regulations of sections 3-301 through 3-312, it is clear that the Legislature intended the aim of “informed use of consumer credit by requiring disclosures about its terms and costs,” O.A.C. 160:45-1-1, to apply to both consumer credit sales and consumer loans. ¶17 Based on the number of federal and state cases applying Regulation Z to cases involving consumer loans, the similarity of language defining consumer credit and consumer loans in the Code, and the similar disclosure requirements, we find no reason to apply a different interpretation of the language “regularly engaged in the business of making loans.” Therefore, a person is regularly engaged in the business of making loans for purposes of section 3-104 of the Code if that person makes more than 25 loans or more than 5 loans secured by a dwelling in the preceding calendar year. Because Terpenning made six loans secured by a dwelling, the district court correctly found that Terpenning regularly engaged in the business of making consumer loans.10 Consequently, the district court correctly determined that the Bunch Loan was a supervised loan as defined in Code § 3-501.11 II. Supervised Lending and Consumer Loans ¶18 Terpenning’s second argument is that Regulation Z forms part of the definition of consumer loans only for the purposes of the Code disclosure regulations, not for the purpose of defining a supervised loan. As previously stated, Code § 3-501 (emphasis added) defines a supervised loan as “a consumer loan in which the rate of the loan finance charge Vol. 81 — No. 3 — 1/30/2010
exceeds ten percent (10%) per year . . .” and the only Code definition of “consumer loan” is that found in section 3-104 and clarified by Regulation Z. Although the remedies are different,12 this fact provides no basis on which to conclude that the different definitions were intended to be applied to different kinds of loans. Terpenning has failed to show, and we find nothing in the statutory language or the text of Regulation Z supporting the conclusion, that the Legislature intended a “consumer loan” to be defined differently when applying the supervised lending regulations than when applying the disclosure regulations. III. Unauthorized Lenders and Void Loans ¶19 Terpenning’s final argument is that the district court erred in voiding Bunch’s obligation to repay the remaining principal and interest on the loan. Code section 3-502(1) provides: “[u]nless a person is a supervised financial organization or has first obtained a license from the Administrator authorizing the person to make supervised loans, a person shall not engage in the business of: (a) making supervised loans; or (b) taking assignments and undertaking direct collection of payments from or enforcement of rights against debtors arising from supervised loans. Code section 3-502(2) is unambiguous: “If a creditor has violated the provisions of this act applying to authority to make supervised loans (Section 3-502 of this title), the loan is void and the debtor is not obligated to pay either the principal or loan finance charge.”13 Terpenning has failed to show that the district court erred in voiding the Bunch Loan. IV. Assignees That Are Not Supervised Lenders ¶20 Golden Years appeals the dismissal of its foreclosure action, arguing that it did not violate the Code by taking assignment of the Bunch Loan or attempting to foreclose on Bunch’s home because of his default on the loan. Code section 3-502(1) clearly provides that a party not licensed to make supervised loans is prohibited from “taking assignments and undertaking direct collection of payments from or enforcement of rights against debtors arising from supervised loans.”14 Golden Years argued during the damages phase of the district court proceeding that it retained its rights to the Bunch Loan because section 3-502(1) allows unlicensed lenders to take assignment of a supervised loan, provided they undertake no direct collection of payments.
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¶21 Golden Years’s argument fails for two reasons. First, Code section 3-502(2) provides that a supervised loan made by an unlicensed lender is void. Terpenning could not “rehabilitate” the void loan by assigning it to another unlicensed lender. Second, Golden Years filed suit in Oklahoma to foreclose the Bunch Loan. Foreclosure for nonpayment is clearly an “enforcement of rights” prohibited under section 3-502(1), and we find this argument without merit. Therefore, we find that Golden Years has failed to show that the district court erred in dismissing Golden Years’s foreclosure action. CONCLUSION ¶22 The record establishes that Terpenning was a person regularly engaged in the business of making loans for the purposes of 14A O.S.2001 § 3-104 and that the Bunch Loan was a supervised loan. Because Terpenning was not authorized to make supervised loans, he violated the provisions of section 3-502. Likewise, Golden Years was not authorized to make supervised loans and, therefore, could not take assignment of the Bunch Loan and attempt to foreclose that loan. The record shows that Bunch was entitled to judgment as a matter of law, and the district court’s judgment in favor of Bunch is affirmed. ¶23 AFFIRMED. GABBARD, P.J., and RAPP, J., concur. 1. This claim was eventually dismissed with prejudice, and is not at issue in this appeal. 2. Aside from the difficulties in applying this standard, it would lead to an unsatisfactory result: large organizations could make hundreds of unsupervised loans because they constituted only a fraction of the organization’s business. We find nothing in the statute or relevant case law supporting Terpenning’s interpretation. 3. Rea affirmed summary judgment against the lender based on a violation of the disclosure requirements of § 5-203 of the Code but reversed the judgment as to the equitable relief authorized by § 5-202 finding that this relief was subject to a defense of reliance on the advice of counsel, a question of fact. Terpenning does not rely on the advice of counsel defense. 4. Further, the loan in Barnes did not qualify as a consumer loan irrespective of whether Barnes regularly engaged in the business of making loans: “the loan also fails to satisfy the requirement that the debt be incurred for a personal, family, household or agricultural purpose. It is obvious that the loan was made in pursuit of the borrower’s commercial ventures.” Id. at ¶ 14, 584 P.2d at 1018. 5. See e.g. Decision Point, Inc. v. Reece & Nichols Realtors, Inc., 144 P.3d 706, 710 (Kan. 2006); Brown v. Fenner, 757 P.2d 184, 184 (Colo. Ct. App.,1988); Bown v. Loveland, 678 P.2d 292, 296 (Utah 1984); Bekins Bar V Ranch v. Huth, 664 P.2d 455, 460-61 (Utah 1983); Wasescha v. Terra, Inc., 528 P.2d 802, 804 (Utah 1974), all of which determine “regular engagement” without citing any number of loans. 6. Although no Oklahoma case addresses the application of the Regulation Z “25/5” standard to the “regular engagement in the business of making loans” required by Section 3-104, six reported Oklahoma cases discuss Regulation Z. See Testerman v. First Family Life Ins.
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Co., 1990 OK CIV APP 108, 808 P.2d 703; Ault v. Gen. Prop. Mgmt Co., 1984 OK CIV APP 15, 683 P.2d 988; Nat’l Interstate Life Ins. Co. v. Thomas, 1981 OK 71, 630 P.2d 779; Grant Square Bank and Trust Co. v. Green, 1981 OK CIV APP 28, 629 P.2d 1302; Stephens v. Household Fin. Corp., 1977 OK 137, 566 P.2d 1163; Dalton v. City of Tulsa, 1977 OK 25, 560 P.2d 955. Of these cases only Ault mentions the “25 times or more than 5 times for transactions secured by a dwelling” standard, and does so as dicta. 7. If a state statute is patterned after a federal statute, federal jurisprudence may be instructive when interpreting the Oklahoma statute. See Barnett v. Simmons, 2008 OK 100, ¶ 16, 197 P.3d 12, 18; Payne v. DeWitt, 1999 OK 93, ¶¶ 8-9, 995 P.2d 1088, 1092-93. 8. See In re Robertson, 333 B.R. 894, 898 (Bkrtcy. M.D. Fla. 2005) ($20,000 loan secured by mortgage); In re Peterson, 270 B.R. 719, 721 (8th Cir.BAP 2001)( $10,000 loan secured by mortgage); Reagan v. Racal Mortg., Inc., 135 F.3d 37, 40 (1st Cir. 1998); St. Jean v. Racal Mortg., 952 F.Supp. 22, 26 (D.Me.1997) (both applying Reg. Z to Maine licensing requirements for supervised lending); In re Crotzer, 147 B.R. 252, 253 (Bkrtcy. N.D.Ala.1992) (analyzing $35,000 note to pay for supplies and labor to build a home secured by a mortgage on the debtors’ property under Alabama consumer credit law); Paglia v. Elliott, 373 N.W.2d 121, 124 (Iowa 1985) ($19,000 loan secured by note and mortgage analyzed under Iowa CCC Section 537.1401(14)(a), which is substantially equivalent to Oklahoma Section 3-104. 9. The comparative definitions of the two sections are: Section 2-104 (Credit Sales) Section 3-104 (Loans) a “consumer credit sale” is a sale of goods, services or an interest in land in which credit is granted by a person who regularly engages as a seller [if]
a “consumer loan” is a loan made by a person regularly engaged in the business of making loan [if]
the buyer is a person other than an organization
the debtor is a person other than an organization
the goods, services or interest in land are purchased primarily for a personal, family or household purpose
the debt is incurred primarily for a personal, family or household purpose
either the debt is payable in installments or a credit service charge is made
either the debt is payable in installments or a loan finance charge is made
the amount financed does not exceed Forty-five Thousand Dollars ($45,000.00)
either the principal does not exceed Forty-five Thousand Dollars ($45,000.00) or the debt is secured by an interest in land
10. It is undisputed that Terpenning made six loans secured by a dwelling. Further, it is undisputed that the interest rate on the Bunch Loan was 15.99 percent per year. Finally, Terpenning operated a company styled as “Signature Real Estate & Finance,” and developed a business relationship with at least one third party (Keller) to funnel potential borrowers to Terpenning. Terpenning sold the notes almost immediately to a third party at a 25% discount. None of these activities is consistent with the casual and intermittent personal lending involved in Barnes. 11. Moreover, aside from the numbers of loans, the Keller flyers are indicative of his activity in attempting to obtain loans of the nature here described. 12. The remedy for violating the disclosure sections of the Code in the case of an individual action relating to a credit transaction secured by a dwelling, is limited by § 5-203(1) to any actual damage sustained by that person as a result of the failure, or twice the amount of the credit service or loan finance charge in connection with the transaction, or to $2,000. A lender making an unauthorized supervised loan may be required to repay any principal and interest received, and void the loan pursuant to § 5-202(2). 13. The case of Kuykendall v. Malernee, 1973 OK CIV APP 14, ¶ 10, 516 P.2d 558, 563, reaches the same result, finding that, pursuant to section 5-202(2), “both the principal and excessive finance charge are made uncollectible by [the statute] terming any such unauthorized supervised loan void.” 14. Bunch’s response to Golden Years’s argument misquoted the statute, rendering it as “taking assignments or undertaking direct collection of payments.” We address the issue partially because the district court may have relied on this misstatement of the law.
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WESTERN FARMERS ELECTRIC COOPERATIVE (WFEC) STAFF ATTORNEY- ANADARKO, OK Under the general supervision of the General Manager, Legal and Administration, the Staff Attorney provides legal advice and counsel to Cooperative management and personnel on a variety of topics including: regulatory compliance, contract development, contract administration, litigation management, legal correspondence, and the creation and review of business documents such as contracts, interconnection agreements, transmission service agreements, and regulatory matters involving power supply, transmission services and reliability. The incumbent researches, drafts, reviews, interprets and negotiates legal documents on behalf of various departments on a wide range of legal questions. From time to time, the incumbent manages litigation. The Staff Attorney will focus on regulatory compliance issues. Requires a J.D. or LL.B degree from an accredited law school and five years of progressively responsible legal experience. Requires a valid driver’s license and a license to practice law in the State of Oklahoma. View job posting and apply on-line at www.wfec.com. Job posting closes 02/26/10
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MIDSIZE TULSA LAW FIRM, seeking trial lawyer with 0-5 years experience to handle all phases of personal injury litigation. Salary commensurate with experience. Please send resume, references and writing sample to Box “W,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. LITIGATION PARTNER WANTED for new Oklahoma office (OKC or Tulsa) for a national insurance defense and employment firm. Candidate must have a minimum of 10 years experience in litigation and must demonstrate a high energy level as well as strong client relations skills. Construction defect, professional liability, employment and personal injury defense work necessary. Compensation package will reward skills, experience and existing relationships. Additional information may be found at www.helmsgreene.com. We would also consider a small litigation team. Please direct inquiries to Steve Greene at sgreene@ helmsgreene.com or (770) 206-3371. NEW GRADUATES OR 1-3 YEARS EXPERIENCE. McAlester law firm is seeking full-time associate for all areas of trial practice including criminal, personal injury, malpractice, civil rights, commercial, family law. Travel is required. Salary based on experience plus bonuses. Very busy, fast-paced practice. Send resume with references to: Jeremy Beaver, Gotcher & Beaver Law Firm, P.O. Box 160, McAlester, Ok 74502 or Jeremy@gotcher-beaver.com. LESTER, LOVING & DAVIES PC, is looking for a highly skilled legal assistant with experience in federal complex civil litigation including labor and employment, business litigation, bad faith litigation, and cases with significant document management responsibilities and ESI. Send resume to Lester, Loving & Davies, 1701 South Kelly Avenue, Edmond, OK 73013. OFFICE MANAGER FOR MEE MEE HOGE & EPPERSON, PLLP. Eight attorney OKC law firm. Strong accounting background required; experience with QuickBooks, TABS III helpful. Send Resume to jwmjr@meehoge.com.
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LEGAL CLAIMS CONSULTANT NEEDED: Our client, a major oil and gas company with offices in Bartlesville, is searching for a legal claims consultant to join the claims group. Qualified candidates will be either senior paralegals with legal claims experience or junior attorneys with experience as a claims adjuster or agent. Interviewing to begin immediately. Great opportunity to join a fantastic company! Qualified candidates please apply online at http://eresume.ProvidusGroup.com and reference Job #5181. SPANISH SPEAKING LEGAL ASSISTANT IMMEDIATE EMPLOYMENT: Must be fluent in Spanish and must be able to interpret and translate from English to Spanish. Must have 5 years experience in personal injury, $40k plus benefits. Send resume & references to: Legal Research & Management Systems, Inc. P.O. Box 2243, Oklahoma City, OK 73101 or fax resume to (405) 232-2276. POSITION AVAILABLE: Shawnee, OK: 2-5 years experience, position requires person with skills in research, writing, trial preparation and trial experience. Please send resumes to Box “Y,” Oklahoma Bar Association, P. O. Box 53036, Oklahoma City, OK 73152. ASSOCIATE WITH 3-7 YEARS DEFENSE LITIGATION EXPERIENCE needed by AV-rated Tulsa firm. Insurance defense a plus. Very busy, fast-paced, expanding office offering competitive salary, health/life insurance, 401k, etc. Send resume and writing sample (10 pg. max) in confidence via email to legalrecruit500@yahoo.com. PARALEGAL NEEDED IN VERY BUSY TULSA AV LAW FIRM. At least 3 years civil defense litigation experience REQUIRED. Competitive salary, health/life/disability ins., 401-k, etc. Send resume to legalrecruit500@yahoo.com. All inquiries kept strictly confidential. ATTORNEY WITH 6+ YEARS OF TRANSACTIONAL EXPERIENCE; CORPORATE PARALEGAL: Multibillion dollar distribution company with over 3,500 employees seeks transactional attorney in Tulsa for negotiation, drafting and review of contracts and handling of various other corporate and transactional matters; SEC reporting experience preferred. Company also seeks an experienced corporate paralegal for contract administration and handling various other corporate and transactional matters. Please send resumes to “Box I,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
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POSITIONS AVAILABLE
POSITIONS AVAILABLE
PRESIDENT AND CHIEF EXECUTIVE OFFICER – OKLAHOMA LAWYERS FOR CHILDREN: Oklahoma Lawyers for Children is seeking to fill the position of its president and chief executive officer. Applicant must be a licensed Oklahoma attorney with a minimum of five years of legal experience. Fundraising experience also preferred. The position leads and directs the efforts of the organization, including administration of volunteer programs and leading/ developing fundraising initiatives. Before February 15, 2010, please send your resume to Eric Eissenstat by e-mail to eeissenstat@fellerssnider.com or by mail to 100 N. Broadway, Suite 1700, Oklahoma City, OK 73102. Oklahoma Lawyers for Children is a non-profit organization with a mission to use the time, talent and resources of pro bono attorneys and others to represent and assist deprived and abused children in the Oklahoma County juvenile system.
DOWNTOWN TULSA AV RATED FIRM SEEKS ASSOCIATE with 1 to 3 years experience (civil litigation experience a plus). Firm offers an excellence compensation package. Salary is commensurate with experience. Strong academic record required. Please send resume, references, writing sample and law school transcript to “BOX U,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. OKLAHOMA BASED, MULTI-STATE FIRM SEEKS ASSOCIATES for Oklahoma offices, several locations statewide. Emphasis on Family Law and Child Support Enforcement. Strong work ethic and self motivation skills required. All replies considered confidential. Send resume and salary requirements to: “Box B,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
AV-RATED SOUTHWEST KANSAS LAW FIRM seeks an attorney with 2-5 years of litigation experience. Attorney would be expected to handle contract, commercial law, business and personal injury litigation. Salary commensurate with experience. Send resume to “Box G,” Oklahoma Bar Association, P. O. Box 53036, Oklahoma City, OK 73152. EMPLOYMENT LITIGATION ASSOCIATE – Oklahoma City: Associate with 5 – 10+ yrs. experience or more in employment law; Title VII, ADEA Trial experience required. Billable hours: 2000 annually. Very lucrative compensation package. Partner track position. Please e-mail Word resume and salary requirements to: tamar@tmsrecruiting.com. TULSA OKLAHOMA LAW FIRM SEEKS ASSOCIATE ATTORNEY with 1-4 years of litigation experience. Experience in Family, Criminal, or Workers’ comp law is helpful. Salary is determined by level of experience. Resume to charles@kanialaw.com.
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.
OKC FIRM SEEKS ATTORNEY FOR IMMEDIATE OPENING: North OKC firm seeks Associate or Of Counsel attorney. Minimum 2 yrs experience required. Email Resume to info@mazaherilawfirm.com. No phone inquiries please.
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The Oklahoma Bar Journal
Vol. 81 — No. 3 — 1/30/2010
Vol. 81 — No. 3 — 1/30/2010
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