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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
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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
events Calendar JUNE 2010 9
OBA Government and Administrative Law Practice Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jami Fenner (405) 844-9900
11
Family Law Section Publication Board Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: John Ford (580) 234-0253
Oklahoma Trial Judges Association Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: A.J. Henshaw (918) 775-4613
OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly K. Hays (918) 592-2800
15
OBA Civil Procedure Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: James Milton (918) 591-5229
16
Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212
17
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 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 Technology Task Force Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Deborah Reheard (918) 689-9281
18
Association of Black Lawyers Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donna Bacy (405) 424-5510
OBA Board of Editors Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Carol Manning (405) 416-7016
19
OBA Title Examination Standards Committee Meeting; Stroud Community Center, Stroud; Contact: Kraettli Epperson (405) 848-9100
21
OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Andrea Braeutigam (405) 640-2819 For more events go to www.okbar.org/calendar
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Oklahoma Bar Association
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contents June 5, 2010 • Vol. 81
• No. 16
page 1387 Events Calendar 1390 Index to Court Opinions 1391 Supreme Court Opinions 1401 OBA Board of Governors Vacancies and Nominating Petitions
1403 Disposition of Cases Other Than by Publication
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Index To Opinions Of Supreme Court 2010 OK 42 State of Oklahoma, ex rel., Oklahoma Bar Association, Complainant, v. Gloyd Lynn McCoy, Respondent. OBAD #1806, SCBD #5592................................................................ 1391 2010 OK 41 Derald Ahlschlager, individual; Shirley Ahlschlager, individual, Clayton Alexander, individual; Barbee Barker, individual; Bill Barker, individual; Cleo Bass, individual; Elbert Bentley, individual; Doyle Blackburn, individual; Jerry Boucher, individual; Mary Boucher, individual; Carolyn Brown, individual; Louetta Cheek, individual; Roma Chenoweth, individual; Edna Dean, individual; Karen Denison, individual; Dianne Dirickson, individual; Henry Dirickson, individual; Catherine Donahue, individual; Eunice Edison, individual; Rundell Edison, individual; Dixie Elder, individual; (Roy) Lynn Erman, individual; Sandra Ewing, individual; Jimmie Fishgrab, individual; Karen Gardner, individual; Jack Green, individual; Rhonda Hankins, individual; Bonny Hartline, individual; David Hill, individual; Ron Honeycutt, individual; Fred Michael Hooper, individual; Rheu Nell Horton, individual; Jeanne Jarvis, individual; Bill Johnson, individual; Howard Johnson, individual; Jo Jean Johnson, individual; Yvonne Johnson, individual; Sue Large, individual; David Lucas, individual; Virginia Luca, individual; Rodney Mastin, individual; Doris McNair, individual; Linda Moon, individual; Neta Morris, individual; Aves Munson, individual; Peggy Myers, individual; Carole Neptune, individual; Larry New, individual; Myrna New, individual; Cynthia Sharron Nichols, individual; Bryan Nunn, individual; Marcia Peppell, individual; Gwendolyn Phelps, individual; Patricia Pricer, individual; Louise Ratcliff, individual; Henry Ray, individual; Janet Ray, individual; Janet Ray, individual; Jay Roberts, individual; Loydel Robertson, individual; Kenneth Schraner, individual; Jody (Joanne) Sherry, individual; Zema (Sally) Smiddy, individual; Delton Smith, individual; Howard Smith, individual; Judith Smith, individual; Rosemary Smith, individual; Sharon Smith, individual; Russa Stout, individual; Erma (Ruth) Strickland, individual; Maxie Tenopir, individual; Melvin Tubbs, individual; Betty Tumlinson, individual; Roberta (Butch) Vowell, individual; Imogene Wilkinson, individual; Mary Wilson, individual; Carolyn Youngstredt, individual; and Kenneth Youngstredt, individual, Appellees/Counter-Appellants v. Lawton School District, Independent School District 008 of Comanche County, a political subdivision of the State of Oklahoma, Appellant/Counter-Appellee. No. 105,626................ 1391
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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 42 State of Oklahoma, ex rel., Oklahoma Bar Association, Complainant, v. Gloyd Lynn McCoy, Respondent. OBAD #1806, SCBD #5592. June 1, 2010 ORDER OF INTERIM SUSPENSION The complainant, Oklahoma Bar Association (Bar Association), filed an application for an order of interim suspension on April 28, 2010. The request notes the respondent, Gloyd Lynn McCoy (McCoy/attorney), has been disbarred by the United States Court of Appeals for the Tenth Circuit. The other grounds for the request stem from the attorney’s contentions throughout disciplinary proceedings that he suffers from debilitating depression making him mentally incapable of the practice of law and what appears to be his continued practice of law despite the allegations that he is not fit to do so. On May 17, 2010, the attorney filed an agreement to the interim suspension. McCoy sought to limit the suspension to allow him to preserve one cause by filing a petition in error and to obtain substitute counsel in three pending appeals. Upon consideration of the application for order of interim suspension and the agreement thereto, THE COURT DETERMINES; 1) The attorney was disbarred by the Tenth Circuit on March 5, 2010. Rule 7.7, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. 2) Throughout related disciplinary proceedings, the attorney has maintained that he is personally incapable of practicing law. Rule 10.1, Rules Governing Disciplinary Proceedings, 5 O.S. 201, Ch. 1, App. 1-A. 3) The attorney is subject to immediate interim suspension awaiting resolution of the disciplinary proceedings currently pending. 4) The attorney is required to withdraw from all cases pending, if any, and give written notice by certified mail within twenty (20) days to all those clients for whom he is Vol. 81 — No. 16 — 6/5/2010
presently conducting legal business that is now pending, notifying them of his suspension, and the necessity of promptly retaining new counsel. Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. 5) The participating of the attorney in the representation of clients in any proceeding outside the parameters of this order shall be considered the unauthorized practice of law. IT IS THEREFORED ORERED, ADJUDGED, AND DECREED THAT: the respondent, Gloyd Lynn McCoy, is suspended from the practice of law effective immediately; the attorney is directed to comply with Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A; and any participation by the attorney in the representation of clients in any proceeding outside the parameters of this order shall constitute the unauthorized practice of law. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 1st DAY OF JUNE, 2010. /s/ James E. Edmondson CHIEF JUSTICE ALL JUSTICES CONCUR. 2010 OK 41 Derald Ahlschlager, individual; Shirley Ahlschlager, individual, Clayton Alexander, individual; Barbee Barker, individual; Bill Barker, individual; Cleo Bass, individual; Elbert Bentley, individual; Doyle Blackburn, individual; Jerry Boucher, individual; Mary Boucher, individual; Carolyn Brown, individual; Louetta Cheek, individual; Roma Chenoweth, individual; Edna Dean, individual; Karen Denison, individual; Dianne Dirickson, individual; Henry Dirickson, individual; Catherine Donahue, individual; Eunice Edison, individual; Rundell Edison, individual; Dixie Elder, individual; (Roy) Lynn Erman, individual; Sandra Ewing, individual; Jimmie Fishgrab, individual; Karen Gardner, individual; Jack
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Green, individual; Rhonda Hankins, individual; Bonny Hartline, individual; David Hill, individual; Ron Honeycutt, individual; Fred Michael Hooper, individual; Rheu Nell Horton, individual; Jeanne Jarvis, individual; Bill Johnson, individual; Howard Johnson, individual; Jo Jean Johnson, individual; Yvonne Johnson, individual; Sue Large, individual; David Lucas, individual; Virginia Luca, individual; Rodney Mastin, individual; Doris McNair, individual; Linda Moon, individual; Neta Morris, individual; Aves Munson, individual; Peggy Myers, individual; Carole Neptune, individual; Larry New, individual; Myrna New, individual; Cynthia Sharron Nichols, individual; Bryan Nunn, individual; Marcia Peppell, individual; Gwendolyn Phelps, individual; Patricia Pricer, individual; Louise Ratcliff, individual; Henry Ray, individual; Janet Ray, individual; Janet Ray, individual; Jay Roberts, individual; Loydel Robertson, individual; Kenneth Schraner, individual; Jody (Joanne) Sherry, individual; Zema (Sally) Smiddy, individual; Delton Smith, individual; Howard Smith, individual; Judith Smith, individual; Rosemary Smith, individual; Sharon Smith, individual; Russa Stout, individual; Erma (Ruth) Strickland, individual; Maxie Tenopir, individual; Melvin Tubbs, individual; Betty Tumlinson, individual; Roberta (Butch) Vowell, individual; Imogene Wilkinson, individual; Mary Wilson, individual; Carolyn Youngstredt, individual; and Kenneth Youngstredt, individual, Appellees/ Counter-Appellants v. Lawton School District, Independent School District 008 of Comanche County, a political subdivision of the State of Oklahoma, Appellant/ Counter-Appellee. No. 105,626. June 1, 2010 CERTIORARI TO THE COURT OF CIVIL APPEALS Division IV ¶0 Retired employees brought an action against their former employer, a school district, asserting a breach of early retirement contracts. A jury determined that the contracts were breached and awarded damages. The trial court, Honorable Richard Van Dyck, Comanche County, entered judgment on the verdict. The Court of Civil Appeals reversed holding that the failure to present evidence of the school district’s 1392
indebtedness for the fiscal year in which the judgment was entered made the judgment void. On rehearing, that court held a new trial was required as a result of the void judgment. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; TRIAL COURT JUDGMENT VACATED; CAUSE REMANDED WITH INSTRUCTIONS. Stanley M. Ward, Woodrow K. Glass, Scott F. Brockman, Ward & Glass, LLP, Norman, Oklahoma for Appellees/Counter-Appellants. Barry K. Roberts, Norman, Oklahoma for Appellees/Counter-Appellants. Karen L. Long, Jerry A. Richardson, Rosenstein, Fist & Ringold, Tulsa, Oklahoma for Appellant/Counter-Appellee, Lawton School District. C.E. Wade, Jr., Wade & Mackey, Lawton, Oklahoma for Appellant/Counter-Appellee, Lawton School District. COLBERT, J. ¶1 The primary issue in this matter is the effect of noncompliance with title 62, section 362 of the Oklahoma Statutes which requires proof of a municipality’s or school board’s current indebtedness before a judgment may be entered in a suit based on contract. This Court holds that the failure to present proof of actual indebtedness for the fiscal year in which a judgment is entered in a contract action voids such judgment. However, that failure is a jurisdictional defect in the judgment only. It does not void the jury’s determination that a breach of contract occurred, nor does it void the jury’s award of damages. Further, for the reasons stated in this opinion, this Court rejects the assertions of error concerning the trial of this matter. The trial court’s judgment is vacated and the matter is remanded to the trial court for a determination of current indebtedness for the fiscal year in which judgment is to be entered on the jury’s verdict and consideration of an award of attorney fees and prejudgment interest. FACTS ¶2 Independent School District No. 8 of Comanche County (Lawton School District) offered an early retirement incentive plan to its employees from 1993 until 1998. The goal of
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the plan was to generate savings for the District by encouraging the retirement of senior level employees who could be replaced by less experienced employees who earned less money. Under the plan, eligible retirees would receive ten per cent of their annual salary and payment of the cost of the retiree’s participation in the Oklahoma State and Educational Employees Health Plan until the retiree aged out of the plan, died, accepted employment which would disqualify the retiree from benefits under the Oklahoma Teachers’ Retirement System, or “[b]ecause of a lack of funds, the Board of Education does not authorize the payments in any subsequent fiscal year.” The contracts provided no explanation concerning the nature or extent of the “lack of funds” that would justify termination of the plan. It did provide that if the District discontinued benefits, the retiree would have the option of returning to a position with the Lawton Public Schools. ¶3 In April of 2002, all retirees receiving benefits under the plan were notified that the Lawton School District was faced with “a financial crisis” that would likely cause the elimination of benefits under the plan. In August of 2002, the Board of Education voted to terminate the payments to retirees under the plan but to continue to pay for the retirees’ health insurance. ¶4 In February of 2004, seventy-nine retirees brought this action alleging that the District had breached its contracts with them by terminating payments under the plan and failing to reinstate the plan in subsequent years. The matter was tried to a jury in January of 2008. ¶5 The District’s position at trial was that the decision to terminate the plan benefits was a proper fiscal decision in light of the “financial crisis” caused by a reduction in funding from the State of Oklahoma. It presented evidence of the cost saving measures it implemented which included the elimination of positions by attrition and the elimination of certain programs. Retirees’ position was that despite the reduction in funding, the District had adequate funds available to fund the early retirement incentive plan and simply chose not to make the funding of the plan a priority. Retirees presented evidence of sufficient carry-overs of funds from prior fiscal years to fund the program. They also presented evidence to demonstrate the programs were re-instituted and the positions were re-filled. Vol. 81 — No. 16 — 6/5/2010
¶6 The jury returned a verdict for Retirees in the amount of $1.4 million, and the trial court subsequently entered judgment on the jury’s verdict. Retirees’ application for prejudgment interest was denied but their request for prevailing party’s attorney fees was granted. ¶7 The District appealed arguing that (1) the judgment was void for Retirees’ failure to present evidence of the District’s indebtedness for the fiscal year in which the judgment was entered pursuant to sections 362 and 363 of title 62, (2) the plan violated the debt limitation of Article 10, section 26 of the Oklahoma Constitution by purporting to bind a school district’s revenues beyond the fiscal year in which the contracts were entered, (3) the plan was void for its failure to obtain the approval of the Attorney General pursuant to section 17-116.7 of title 70, (4) the trial court erred in admitting parol evidence as to the meaning of “lack of funds” in the plan, (5) the jury’s finding that the District breached its contracts with Retirees was not supported by competent evidence, and (6) the trial court abused its discretion in awarding attorney fees. Retirees counterappealed arguing that they were entitled to an award of prejudgment interest on the jury award and that the trial court erred in denying the request. ¶8 The Court of Civil Appeals considered the failure to present evidence of the District’s indebtedness for the fiscal year in which the judgment was rendered to dispose of the matter. It declared the judgment void along with subsequent orders of the trial court which awarded attorney fees and denied prejudgment interest. It remanded the matter “to the trial court for the purpose of receiving evidence pursuant to Section 362, to include the fiscal year in which any judgment on the jury verdict is rendered and the judgments for attorney fees, if any, or prejudgment interest, if any, are entered.” The Court of Civil Appeals apparently attempted to clarify its directions on remand by including the following statement in its order denying rehearing: Because the judgment was vacated, a new trial will be required. At that trial, the Plaintiffs/Appellees [Retirees] will or will not be able to produce the evidence required by 62 O.S. 2001 § 362 discussed in the Opinion. As made clear in the Opinion, no other issue was addressed. Therefore, the Petition for Rehearing is DENIED.
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Retirees petitioned for certiorari review urging that the Court of Civil Appeals erred in rejecting their argument that the requirements of section 362 had been satisfied. Today’s holding, that the judgment is void but the jury verdict is not tainted by any infirmity, requires resolution of the other issues raised on appeal. STANDARDS OF REVIEW ¶9 Several legal issues are raised as to the validity and enforceability of the early retirement incentive plan contracts between the District and some of its participating Retirees. Those present questions of law which are reviewed de novo. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. The trial issue regarding the admission of parol evidence is whether the contract contained an ambiguity. That also presents an issue of law reviewed de novo. See Ferrell Constr. Co. v. Russell Creek Coal Co., 1982 OK 24, ¶ 9, 645 P.2d 1005, 1007. The jury’s verdict is reviewed for any competent evidence. Hames v. Anderson, 1977 OK 191, ¶ 11, 571 P.2d 831, 833. EFFECT OF SECTIONS 362 & 363 ¶10 Article X, section 26(a) of the Oklahoma Constitution provides: Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of threefifths of the voters thereof, voting at an election, to be held for that purpose, nor, in cases requiring such assent, shall any indebtedness … in the aggregate exceeding five percent (5%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness…. This provision requires a political subdivision, such as a school district, to carry all its corporate operations on a pay-as-you-go basis and prohibits indebtedness beyond each current year. Herd Equip. Co. v. Township of Eagle, 1937 OK 324, ¶ 0, 68 P.2d 420 (Syl. n.2 by the Court). ¶11 Sections 362 and 363 of title 62 of the Oklahoma Statutes control judgments rendered 1394
against a political subdivision to insure compliance with the debt limitations set by the Oklahoma Constitution in Article X, section 26. Okla. City v. Green Constr. Co., 1938 OK 510, ¶ 5, 84 P.2d 623, 624. Section 362 provides: Before final judgment in any suit based on contract, including but not limited to proceedings by the Commissioners of the Land Office to collect deficient payments plus interest and reasonable attorney fees related to bonds or other types of indebtedness guaranteed by the corpus of the permanent school fund for the support of common schools pursuant to Section 10 of this act, shall be rendered against any municipality by any court of any county in the State of Oklahoma, except in proceedings to refund any indebtedness of said municipality, proof shall be made to the court, of the existence, character and amount of the outstanding legal indebtedness of said municipality, which proof shall include a statement compiled by the various officers having custody of the records from which the information required in the statement is taken, under oath, showing the following: 1. An itemized statement of the bonded indebtedness of said municipality. 2. An itemized statement of the legal indebtedness of said municipality, exclusive of the bonded indebtedness and the alleged indebtedness proposed to be converted into a judgment. 3. An itemized statement of the indebtedness proposed to be converted into a judgment, so classified as to show, in separate exhibits, all items of questionable legality, if any, and the reasons of said officer or officers therefor: (a.) The appropriations against which each warrant was drawn or claim accrued if in judgment, and if within the limits and purposes thereof as provided by law; (b.) The income and revenue provided for the respective years, consisting of taxes levied and the actual collections of “estimated income”; the total warrants issued against the same or the accumulated accruals as the case may be, and the amount, if any, in excess of the total income and revenue of the year;
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(c.) The condition of each fund from which such indebtedness is payable as of the close of the month next preceding the filing of application. Appeals from the judgment of the court shall be allowed as provided by law upon the giving of a bond for cost and damages in such sum as the court shall require; provided, that the county attorney of any county may, without the consent of the board of county commissioners of said county, take an appeal from said judgment on behalf of said county and without bond for costs and damages. Therefore, a plaintiff who has demonstrated a municipality’s1 liability in contract must “prove the municipality’s ability to pay the claim at issue in order that any judgment not exceed the constitutional debt limitations.” Baylis v. City of Tulsa, 1989 OK 90, ¶ 10, 780 P.2d 686, 688 (citations omitted). Pursuant to title 62, section 363, “[n]o judgment shall be rendered against any municipality by any court until the provisions of section [362] have been fully complied with. Any judgment rendered in violation of the provisions of this act shall be void and of no effect.” Okla. Stat. tit. 62 (2001). ¶12 Retirees argue that they substantially complied with the requirements of section 362. They note that the financial records presented to the jury for fiscal years 2002-2003, 2003-2004, and 2006-2007 demonstrated the District’s income, expenses, and indebtedness and that the evidence was sufficient to demonstrate that the District had the funds to satisfy the judgment. They point to two opinions in which this Court found substantial compliance with the proof requirements set out in section 362. See City of Enid v. Reeser, 1958 OK 197, ¶ 17, 330 P.2d 198, 203 (holding entry of auditor’s report into evidence constituted substantial compliance with statute); City of Healdton v. Blackburn, 1934 OK 573, ¶ 23, 37 P.2d 311, 313-314 (holding entry of city’s financial statement was sufficient to satisfy original version of section 362). The District notes that no financial documents were presented for the 2007-2008 fiscal year, the year in which the judgment was entered. It argues that the judgment is therefore void pursuant to section 363 and that the jury’s verdict is void for the same reason. ¶13 Section 362 sets out in detail the evidence which must be presented concerning the political subdivision’s legal indebtedness. It does Vol. 81 — No. 16 — 6/5/2010
not, however, specify any time frame for the scope or the presentation of that evidence, other than that it must be offered prior to final judgment. The issue of the temporal scope of section 362 was resolved in Valley Vista Dev. Corp. v. City of Broken Arrow, 1988 OK 140, 766 P.2d 344, which held that, because sections 361 through 363 “were enacted to ensure fiscal integrity of municipalities on an annual basis, it seems apparent that evidence from the same fiscal year as that in which judgment is entered is required.” Id. at ¶ 22, 766 P.2d at 351. ¶14 Retirees failed to meet the requirements of section 362 by presenting, prior to judgment, proof of outstanding legal indebtedness for the fiscal year in which the judgment was rendered. Contrary to Retirees’ assertion, substantial compliance as to the form in which the section 362 proof is presented does not equate with substantial compliance as to its temporal scope. The judgment in this matter is void on the face of the record by operation of section 363 and must be vacated. However, the failure to present proof of indebtedness for the fiscal year in which a judgment is rendered results in a jurisdictional defect that affects only the judgment but not the jury verdict.2 ¶15 A judgment entered on a jury verdict is a legal concept separate and distinct from the verdict. “A judgment is a judicial act of the court in pronouncing the sentence and the law upon the facts in controversy as ascertained by the pleadings and verdict or finding.” Taliferro v. Batis, 1926 OK 775, ¶ 8, 252 P. 845, 846 (citation omitted). Section 362 recognizes the distinction between a verdict and a judgment by requiring proof of indebtedness “before final judgment.” Thus, the terms of section 363 render void only the judgment. That section’s impact deprived the trial court of jurisdiction to enter a judgment, but it did not remove from the court’s jurisdiction the power to hear the dispute nor to submit questions of fact to a jury. Our rejection of the legal conclusion which the Court of Civil Appeals considered as dispositive requires us to undertake an analysis of the remaining issues raised by the parties. DEBT LIMITATION PROVISIONS OF ARTICLE X, SECTION 26 AND JURY’S FINDING CONCERNING “LACK OF FUNDS” IN THE CONTRACTS ¶16 The early retirement incentive plan provided for termination of benefits if “[b]ecause of lack of funds, the Board of Education does not authorize such payments in any subse-
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quent fiscal year.” The parties agree and the record reflects that the contracting parties understood that contracts, executory or executed, which seek to bind a school district’s revenues of a succeeding fiscal year are void unless authorized by a vote of the people. Indep. School Dist. No. 1 v. Howard, 1959 OK 17, ¶ 0, 336 P.2d 1097 (Syl. n.2 by the Court). They disagree as to what was intended by “lack of funds” and whether it presented a question of law for the court or whether it was an issue of fact which was properly submitted to the jury.
having two or more meanings. K & K Food Servs. v. S & H, Inc., 2000 OK 31, ¶ 8, 3 P.3d 705, 708. “Where the meaning of an ambiguous written contract is in dispute, evidence of extrinsic facts and circumstances throwing light on the intention of the parties is admissible.” Altshuller v. Malloy, 1963 OK 243, ¶ 0, 388 P.2d 1, 2 (Syl. n.2 by the Court). “[T]he construction of such a contract then becomes a mixed question of law and fact and should be submitted to the jury for its determination under proper instructions by the court.” Id.
¶17 The District argues that the plan it drafted may not be enforced by the jury’s verdict because to do so would bind the District to pay benefits to Retirees over multiple fiscal years in violation of the debt limitation of Article X, section 26, of the Oklahoma Constitution. The District has not challenged the standard jury instruction by which the question was asked. Rather, it contends that the meaning of “lack of funds” presented an issue of law for the court rather than a jury question and that the Board of Education was not in any way bound to pay plan benefits in years following the fiscal year in which a contract was signed. The District considers the meaning of “lack of funds” to be a question of law for the trial judge because the term is unambiguous. It asserts error in the trial court’s admission of evidence concerning the intent of the parties using the term.
¶20 The District asserts that the term “lack of funds” is clear, unambiguous, and must be given effect as a matter of law. It finds such clarity in the fact that the Oklahoma Legislature used the term in a statute which requires that the “suspension, demotion, termination or nonreemployment” of support personnel be for cause. Okla. Stat. tit. 70, § 6-101.40 (2001). The statute provides further: “This section shall not be construed to prevent layoffs for lack of funds or work.” Id. The District concludes that, as a matter of law, any loss of funding is a “lack of funds” which would justify a reduction or cancellation of benefits provided in the plan. However, the Legislature’s use of the undefined and unexplained term in the context of support personnel discipline does little to advance the District’s argument that the term is clear and unambiguous.
¶18 Retirees argue that there is no debt limitation issue because they demonstrated to the satisfaction of the jury that the District had revenues on hand to meet the contractual obligations created by the plan. They urge that the District bound itself to give consideration only to authorizing funds for the plan in each successive year. That consideration would involve a good-faith3 determination of whether “a lack of funds” justified a refusal to authorize plan benefits in that fiscal year. Retirees defend the jury’s verdict asserting there was competent evidence presented from which the jury could conclude that the District breached the early retirement contracts by refusing to fund the plan while it had adequate funds to do so.
¶21 The trial court was correct to allow evidence of what the parties intended by “lack of funds.” The term is undoubtedly ambiguous. It could mean that any loss or reduction in revenues would relieve the District from any duty to fund the early retirement incentive plan. It could also mean that, as Retirees assert, the District obligated itself to fund benefits in the years in which it had the funds to do so. It was therefore proper for a jury to determine what the parties actually intended by the term and whether the District met its promises to Retirees.
¶19 Whether a contract term is ambiguous so as to require extrinsic evidence to determine the intent of the parties is purely a question of law for the court. Russell Creek Coal Co., 1982 OK 24, ¶ 9, 645 P.2d at 1007. “The construction of an unambiguous contract is a matter of law for the court.” Id. On the other hand, a contract term is ambiguous if it can be interpreted as 1396
¶22 Conflicting evidence was presented as to whether a “lack of funds” occurred at the time the District terminated the plan and in the years following its termination. The District produced evidence of a “fiscal crisis” that required cancellation of the plan benefits for lack of funds. Retirees successfully rebutted the District’s position by presenting financial records and testimony that demonstrated the District had sufficient revenues to continue to pay the plan benefits. In addition, Retirees presented expert testimony concerning the amount
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of loss suffered by Retirees as a result of the termination of the plan. Thus, competent evidence was presented to support the jury’s verdict and it will not be disturbed on appeal. COMPLIANCE WITH SECTION 17-116.7 OF TITLE 70 ¶23 In 1990, the Oklahoma Legislature enacted a requirement that “any type of contract that creates an unfunded liability and is for the purpose of enhancing pension benefits” must be reviewed by the Attorney General “to ensure that the contract conforms to state law” and the failure to do so renders that contract “void.” Okla Stat. tit. 70, § 17-116.7 (2001). The District notes that there is no evidence in the record that demonstrates it complied with the provision. That is not surprising as the record demonstrates the issue was not raised below. The District maintains that the retirement plan created an unfunded liability.4 Remarkably, it further maintains that its own failure to comply with the provision inures to its benefit by making the contracts void and unenforceable. It relies on the rule that “[a] contract made in violation of a statute is void and when a plaintiff cannot establish his cause of action without relying on an illegal contract, he cannot recover.” Kincaid v. Black Angus Motel, Inc., 1999 OK 54, ¶ 7, 983 P.2d 1016, 1018 (citation omitted). The District reasons that because the contract is illegal, the trial court lacked jurisdiction to enforce it and absence of jurisdiction may be raised for the first time on appeal. ¶24 The District confuses a lack of subject matter jurisdiction, which may be raised for the first time on appeal, see First United Bank & Trust v. Wiley, 2008 OK CIV APP 39, ¶ 14 n.8, 183 P.3d 1022, 1027 n.8, with its own failure to raise illegality as an affirmative defense as required by section 2008 of title 12. That section requires the illegality to be set forth as a pleaded affirmative defense. Okla. Stat. tit. 12, § 2008(10). “[A]ffirmative defenses must be raised by the parties or are waived.” Jernigen v. Jernigen, 2006 OK 22, ¶ 26 n.29, 138 P.3d 539, 548 n.29 (citing Furr v. Thomas, 1991 OK 93, ¶ 23, 817 P.2d 1268, 1272-73). The District’s failure to raise the affirmative defense of illegality of the contract it drafted did not mean that the trial court lacked subject matter jurisdiction to determine whether the contract was breached. See, e.g., Shaffer v. Jeffery, 1996 OK 47, ¶ 7, 915 P.2d 910, 913 (“The affirmative defense of an agreement to arbitrate is not the same thing as lack of subject matter jurisdiction.”). Vol. 81 — No. 16 — 6/5/2010
ATTORNEY FEES & PREJUDGMENT INTEREST ¶25 The trial court’s award of attorney fees and its refusal to award prejudgment interest were founded upon its entry of judgment. Because that judgment is declared void by today’s decision, those post-judgment decisions are likewise declared void and the merits of those decisions will not be addressed. A long-standing rule states: “A void judgment is, in legal effect, no judgment. . . . [A]ll proceedings founded upon it . . . [a]ll acts performed under it, and all claims flowing out of it, are absolutely void.” Arnold v. Joines, 1915 OK 198, ¶19, 150 P. 130, 133. CONCLUSION ¶26 This Court’s review of the issues raised by the parties demonstrates no error in the trial of this cause. However, Retirees’ failure to present the evidence required by section 362 renders the judgment facially void together with the trial court’s post-judgment determinations concerning attorney fees and prejudgment interest. The jury’s verdict, on the other hand, remains unaffected by these errors. This matter is remanded to the trial court for further proceedings that would establish proof of the District’s actual indebtedness for the fiscal year in which a judgment is rendered in compliance with section 362 and for consideration of Retirees’ request for attorney fees and prejudgment interest. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; TRIAL COURT JUDGMENT VACATED; CAUSE REMANDED WITH INSTRUCTIONS. CONCUR: Edmondson, C.J.; Opala, Watt, Colbert, Reif, JJ. DISSENT: Taylor, V.C.J.; Hargrave, Kauger, Winchester, JJ. 1. Section 361 of title 62 defines “municipality” to “mean any school district, independent or otherwise . . ..” 2. Because the defect in the judgment is jurisdictional, the fact that the issue was not raised until the matter was on appeal is not fatal to the argument. Baylis, 1989 OK 90, ¶ 6, 780 P.2d at 687-688 (quoting Green Constr., 1938 OK 510, ¶ 0, 84 P.2d 623 (Syl. by the Court)(holding failure to comply with section 362 may be raised for the first time on appeal). 3. “[E]very contract in Oklahoma contains an implied duty of good faith and fair dealing.” Gens v. Casady School, 2008 OK 5, ¶ 11, 177 P.3d 565, 570 (footnote omitted). 4. This Court need not determine what the statute intended by “unfunded liability” or whether the contract created an unfunded liability because the statute was not raised below.
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BAR NEWS
2011 OBA Board of Governors Vacancies Nominating Petition Deadline: 5 p.m. Friday, Sept. 17, 2010
OFFICERS
Summary of Nominations Rules
President-Elect Current: Deborah Reheard, Eufaula Ms. Reheard automatically becomes OBA president Jan. 1, 2011 (One-year term: 2011) Nominee: Cathy Christensen, Oklahoma City
Vice President Current: Mack K. Martin, Oklahoma City (One-year term: 2011) Nominee: Reta M. Strubhar, Piedmont
BOARD OF GOVERNORS Supreme Court Judicial District Two Current: Jerry L. McCombs, Idabel Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, LeFlore, McCurtain, McIntosh, Marshall, Pittsburg, Pushmataha and Sequoyah Counties (Three-year term: 2011-2013) Nominee: Vacant Supreme Court Judicial District Eight Current: Jim T. Stuart, Shawnee Coal, Hughes, Lincoln, Logan, Noble, Okfuskee, Payne, Pontotoc, Pottawatomie and Seminole Counties (Three-year term: 2011-2013) Nominee: Vacant Supreme Court Judicial District Nine Current: W. Mark Hixson, Yukon Caddo, Canadian, Comanche, Cotton, Greer, Harmon, Jackson, Kiowa and Tillman Counties (Three-year term: 2011-2013) Nominee: Vacant Member-At-Large Current: Jack L. Brown, Tulsa (Three-year term: 2011-2013) Nominee: Vacant
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Not less than 60 days prior to the Annual Meeting, 25 or more voting members of the OBA within the Supreme Court Judicial District from which the member of the Board of Governors is to be elected that year, shall file with the Executive Director, a signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Governors for and from such Judicial District, or one or more County Bar Associations within the Judicial District may file a nominating resolution nominating such a candidate. Not less than 60 days prior to the Annual Meeting, 50 or more voting members of the OBA from any or all Judicial Districts shall file with the Executive Director, a signed petition nominating a candidate to the office of Member-At-Large on the Board of Governors, or three or more County Bars may file appropriate resolutions nominating a candidate for this office. Not less than 60 days before the opening of the Annual Meeting, 50 or more voting members of the Association may file with the Executive Director a signed petition nominating a candidate for the office of President-Elect or Vice President or three or more County Bar Associations may file appropriate resolutions nominating a candidate for the office. See Article II and Article III of OBA Bylaws for complete information regarding offices, positions, nominations and election procedure. Vacant positions will be filled at the OBA Annual Meeting Nov. 17-19. Terms of the present OBA officers and governors listed will terminate Dec. 31, 2010. Nomination and resolution forms can be found at www.okbar.org.
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BAR NEWS
OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)
OFFICERS
Officers
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Cathy M. Christensen, Oklahoma City Nominating Petitions have been filed nominating Cathy M. Christensen for election of PresidentElect of the Oklahoma Bar Association Board of Governors for a one-year term beginning January 1, 2011. A total of 298 signatures appear on the petitions. Nominating Resolutions have been received from the following counties:
Reta M. Strubhar, Piedmont Nominating Petitions have been filed nominating Reta M. Chaney Strubhar for election of Vice President of the Oklahoma Bar Association Board of Governors for a one-year term beginning January 1, 2011. A total of 356 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: Canadian, Cotton, McIntosh and Pittsburg.
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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, May 26, 2010 RE-2008-1080 — In the District Court of Tulsa County, Case No. CF-1998-6324, GARY WAYNE JACKSON, Appellant, was convicted of three counts of Assault with Intent to Commit a Felony. On March 4, 2002, the Honorable Dana L. Kuehn, District Judge, sentenced Appellant to three consecutive terms of five (5) years imprisonment, all suspended under written conditions of probation. On October 30, 2008, Judge Kuehn found that Appellant violated his probation and revoked the suspension orders in full on two of those terms. Appellant appeals the final order of revocation. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results. Thursday, May 27, 2010 F-2009-100 — Larandall Lamar Hill, Appellant, was tried by jury and found guilty in the District Court of Tulsa County, Case No. CF2008-3510, of Count 1, robbery with a dangerous weapon, in violation of 21 O.S. Supp.2001, § 801; and Count 2, assault and battery with a deadly weapon, in violation of 21 O.S.Supp.2007, § 652, both after two or more felony convictions. The jury sentenced Appellant to life imprisonment in Count 1; and life imprisonment in Count 2. The Honorable Clancy Smith, District Judge, imposed judgment and sentence in accordance with the jury’s verdict and ordered the sentences to run concurrently. The trial court sentenced accordingly. From this judgment and sentence, Larandall Lamar Hill has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur. F-2009-556 — Claude Jermaine Harring, Appellant, was tried by jury and convicted of Trafficking in Illegal Drugs (Count I); Unlawful Possession of a Controlled Drug (Count II); Possession of Controlled Drugs Without a Tax Stamp (Count IV); and Unlawful Possession of Drug Paraphernalia (Misdemeanor) (Count V) in Case No. CF-08-4082, in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment life imprisonment without the possibility of parole and a fine of $25,000.00 on Count I, four (4) Vol. 81 — No. 16 — 6/5/2010
years imprisonment on each of Counts II and IV, and six (6) months imprisonment and a $500.00 fine on Count V, with sentences to run concurrently. The trial court sentenced accordingly. From this judgment and sentence Claude Jermaine Harring has perfected his appeal. AFFIRMED. Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. F-2009-431 — Darius Darrell Payne, Appellant, was tried by jury and convicted of Unlawful Possession of Controlled Drug with Intent to Distribute (Count I) after former conviction of two or more felonies and Driving Left of Center (Count II) in Case No. CF-2008-2688, in the District Court of Tulsa County. Payne was sentenced to life imprisonment and a fine of $200,000.00 on Count I, and $100.00 fine on Count II. From this judgment and sentence Darius Darrell Payne has perfected his appeal. AFFIRMED. Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. F-2008-1204 — Bryan Asal, Appellant, was tried by jury for the crimes of Attempted Robbery with a Dangerous Weapon ( Count 1) and Assault and Battery with a Deadly Weapon (Count 2), both after former conviction of two or more felonies, in Case No. CF-2007-6685 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment 30 years imprisonment on Count 1 and 40 years imprisonment on Count 2. The trial court sentenced accordingly and ordered the sentences to be served concurrently with each other, but consecutively to his sentence in Case No. CF-2007-2049. From this judgment and sentence Bryan Asal has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs in results. F-2009-184 — Keith Ray Greenwood, Appellant, was tried by jury for the crimes of Manufacture of Methamphetamine (Count 1), Possession of a Controlled Substance (Methamphetamine) (Count 2), and Assault and Battery on a Police Officer (Count 3) in Case No. CF-2007-637 in the District Court of Bryan County. The jury returned
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a verdict of guilty and recommended as punishment 15 years imprisonment on Count 1, two years on Count 2, and five years on Count 3. The trial court sentenced accordingly and ordered the sentences to be served consecutively. From this judgment and sentence Keith Ray Greenwood has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs in results. F-2009-163 — Peter James Young, Appellant, was tried by jury for the crime of Burglary in the First Degree in Case No. CF-2007-517 in the District Court of Washington County. The jury returned a verdict of guilty and recommended as punishment seven years imprisonment. The trial court sentenced accordingly and ordered the sentence to be served consecutively to his sentence in Case No. CF-2008-11. From this judgment and sentence Peter James Young has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs. Friday, May 28, 2010 RE-2009-492 — Ponca Green, Appellant, appeals from the revocation in full of his five year suspended sentence in Case No. CF2004-32 in the District Court of Kay County. On June 28, 2004, Appellant entered a plea of guilty to Conjoint Robbery and was convicted and was sentenced to a term of ten years, with all but the first five years suspended. On May 20, 2009, the District Court found Appellant had violated rules and conditions of his probation and revoked the five year suspended sentence in full. The revocation of Appellant’s five year suspended sentence in Case No. CF2004-32 in the District Court of Kay County is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. RE-2009-140 — Cicon Denell Jackson, Appellant, appeals from the revocation in full of the nine and one-half year balance of his suspended sentences in Case No. CF-2001-36 in the District Court of McCurtain County. Appellant entered an plea to Count 1 – Burglary in the First Degree; and Count 2 – Attempted Rape in the First Degree by Force and Fear. He was sentenced on each count to a term of twelve and one-half years, with all but the first two and one-half years suspended. The District Court previously revoked 180 days of 1404
Appellant’s suspended sentences. On February 6, 2009, the District Court found Appellant had violated rules and conditions of his probation and revoked in full the nine and onehalf year balance of his suspended sentences. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. RE-2009-0793 — Appellant, Nehemiah Martin Hellems, pled guilty January 15, 2004, in the District Court of Marshall County, Case No. CF2003-132, to Assault and/or Battery with a Dangerous Weapon. He was sentenced May 13, 2004, to ten years with all suspended except for the first 120 days and with rules and conditions of probation. The State filed a motion to revoke Appellant’s suspended sentence on March 11, 2005, amended on May 9, 2005. Appellant stipulated to the allegations in the motion to revoke on July 25, 2006. Following a sentencing hearing August 27, 2009, the Honorable Richard A. Miller, Associate District Judge, revoked Appellant’s suspended sentence in full, nine years and eight months. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by Lewis, J.: C. Johnson, P.J., concur. A. Johnson, V.P.J., concur; Lumpkin, J., concur. F-2009-24 — On June 4, 2008, Appellant entered guilty pleas in Muskogee County Case Nos. CF-2008-58 (False Impersonation, Larceny from a Retailer and Knowingly Concealing Stolen Property) and CF-2008-313 (two counts of Larceny from a Retailer). All charges were filed after former conviction of two or more felonies. Appellant’s sentencing was delayed pending completion of Drug Court. On November 25, 2008, Appellant entered a guilty plea in Muskogee County Case No. CF-2008-898 to two counts of Larceny of Merchandise from a Retailer, after former conviction of two or more felonies. Sentencing was delayed pending completion of Drug Court. On December 29, 2008, Appellant’s participation in Drug Court was terminated and she was sentenced pursuant to the terms and conditions of her plea agreements. From this judgment and sentence, Appellant appeals. Appellant’s Drug Court termination and subsequent sentencing is AFFIRMED. Opinion by: Lewis, J.: C. Johnson, P.J.: Concurs; A. Johnson, V.P.J.: Concurs; Lumpkin, J.: Concurs. C-2009-806 — Ernest Edward Shreffler, Petitioner, pled guilty to Shooting with Intent to Kill (Count I), Possession of a Firearm After Former
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Conviction of a Felony (Count II), Obstructing an Officer (Count III), and Destruction of State’s Property (Count IV) in Case No. CF-2008-466, in the District Court of Pittsburg County. In accordance with a negotiated plea, Shreffler was sentenced to thirty (30) years imprisonment, the last ten (10) suspended on Count I, ten (10) years imprisonment on Count II, and one (1) year imprisonment on each of Counts III and IV, with sentences to run concurrently. From this judgment and sentence Ernest Edward Shreffler has perfected his Petition for Writ of Certiorari. The Petition for Writ of Certiorari is DENIED. Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. C-2009-1013 — Dusty Ray McGee, Petitioner, plead guilty to Second Degree Murder, After Former Conviction of Two or More Felonies in Case No. CF-2007-3014, in the District Court of Tulsa County. McGee was sentenced to twentyfive (25) years imprisonment and a fine of $500.00. From this judgment and sentence Dusty Ray McGee has perfected his Petition for Writ of Certiorari. The Petition for Writ of Certiorari is DENIED. Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. F-2009-336 — Joseph Eugene Gentry, Appellant, was tried by jury for the crime of Attempting to Elude a Police Officer After Former Conviction of Two or More Felonies in Case No. CF-2008-244, in the District Court of Delaware County. The jury returned a verdict of guilty and recommended as punishment forty (40) years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Joseph Eugene Gentry has perfected his appeal. AFFIRMED. Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. Tuesday, June 1, 2010 C-2009-597 — Petitioner, Bolivar Alexander Belliard, entered a guilty plea to the offense of Trafficking in illegal drugs (cocaine), in violation of 63 O.S.2001, § 2-415, in Beckham County District Court case no. CF-2009-60, before the Honorable Doug Haught, Associate District Judge. Judge Haught accepted the plea and pursuant to a plea agreement, sentenced Belliard to twelve (12) years imprisonment and a $500 fine. Belliard filed a pro se request to withdraw his plea, and counsel filed a motion. A hearing on the motion was held on June 29, 2009 and the trial court denied Belliard’s motion. From this Vol. 81 — No. 16 — 6/5/2010
judgment and sentence, Mr. Belliard has perfected his appeal. Belliard’s petition for a writ of certiorari is DENIED, and the trial court’s order denying Belliard’s motion to withdraw plea is AFFIRMED. The trial court however, is ordered to correct the Judgment and Sentence by order nunc pro tunc, in compliance with this Opinion. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concur in Results; Lumpkin, J., Concurs. COURT OF CIVIL APPEALS (Division No. 1) Friday, May 28, 2010 107,148 — Dallas W. Woods, Plaintiff/Appellee, vs. Ron Kornegay, Defendant/Appellant. Appeal from the District Court of Cleveland County, Oklahoma. Honorable Tom A. Lucas, Trial Judge. Plaintiff filed a small claims case against Defendant alleging Defendant breached the contract by failing to pay the contract sum of $4,000.00 for roof repair. Defendant filed a counterclaim for negligent damage to his property and for breach of contract for damages in excess of $10,000.00. The case was removed to District Court. Both Plaintiff and Defendant filed applications for attorney fees. The trial court found Defendant was prevailing party in the breach of contract claim and was not entitled to attorney fees under 12 O.S. §936. The court awarded Plaintiff attorney fees as prevailing party on Defendant’s claim for negligent damage to property under 12 O.S. §940. We find the trial court abused its discretion in refusing to award Defendant attorney fees under 12 O.S. 2002 §936 as prevailing party in Plaintiff’s breach of contract claim. Because Defendant is the prevailing party on his counterclaim for negligent injury to property, he is entitled to attorney fees under 12 O.S. 2001 §940. This matter is reversed and remanded with directions to set aside Plaintiff’s award of attorney fees, to determine and award Defendant a reasonable attorney fee for the reasonable and necessary services of his attorney before the trial court, and for necessary and reasonable services of his attorney before the appellate court. See Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. REVERSED AND REMANDED WITH DIRECTIONS. Opinion by Hansen, J.; Buettner, P.J., and Joplin, J., (sitting by designation), concur. 107,827 — In the Matter of the Adoption of H.Y.S. & Z.N.S., Minor Children: Sharla Jo Sego, Respondent/Appellant, vs. Willie and Becky Sego, Petitioner/Appellees. Appeal from the District Court of Comanche County, Okla-
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homa. Honorable William C. Stratton, Trial Judge. Appellant (Mother) seeks review of the trial court’s order determining her two minor Children were eligible for adoption without her consent on the grounds she willfully failed to contribute to Children’s support and failed to maintain a substantial and positive relationship with Children for the requisite period. Appellees are Children’s paternal grandparents. Appellees presented evidence Mother visited Children only twice during the five months prior to her incarceration, and only wrote to Children twice during her incarceration. The court’s finding Mother’s consent to adoption was not required based upon her failure to maintain a substantial and positive relationship with Children for a period of twelve out of the last fourteen months prior to the filing of the petition was not against the clear weight of the clear and convincing evidence. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,975 — City of Shawnee (Own Risk #13289), Petitioner, vs. Irick Wayne Lowers and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioner (Employer) seeks review of the order of a Three-Judge Panel of the Workers’ Compensation Court reversing the trial court’s order awarding continuing medical maintenance to Respondent (Claimant). The Panel’s order affirmed the award of permanent partial disability (PPD) to Claimant. Employer contends the amount of PPD awarded was excessive. The extent of disability may be determined at any degree within the range expressed by medical experts. The award given by the trial court is somewhere between the percentages stated by both Claimant’s doctor and by Employer’s medical expert. The award is supported by competent evidence. Claimant’s request for costs and additional attorney fees is granted. This case is remanded to the trial court for a determination of appropriate appellate attorney fees. SUSTAINED AND REMANDED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. (Division No. 2) Tuesday, June 1, 2010 106,232 — Rickey D. Kelley, Plaintiff/Appellee, v. Shannon Gray (now Wickersham), Defendant/Appellant. Appeal from an Order of the District Court of Muskogee County, Hon. A. Carl Robinson, Trial Judge. Shannon Gray (Mother) appeals the district court’s denial of 1406
her motion to vacate its 2004 child support order, and its denial of her motion for reimbursement of certain medical expenses incurred on behalf of minor child CK. The district court correctly denied Mother’s motion to vacate and correctly refused to order Father to reimburse Mother for the Hazel Street expenses. The district court’s Order of August 21, 2008, is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. 106,144 — John Stitt, Plaintiff/Appellee, v. Robert Bieber, Defendant/Appellant. Appeal from an order of the District Court of Seminole County, Hon. Timothy L. Olsen, Trial Judge, entering judgment for Plaintiff on his breach of contract claim and entering judgment against Defendant on his counterclaim for breach of contract/conversion. Defendant also appeals the trial court’s denial of his request for attorney fees and costs. Defendant first argues the trial court erred in awarding judgment to Plaintiff on Defendant’s breach of contract and/or conversion for his loss of the use of the tractor. We find the trial court’s award of judgment to Plaintiff on Defendant’s breach of contract/conversion claim is supported by the evidence and affirm. Defendant next claims error in awarding judgment to Plaintiff on the cattle care agreement because there was no evidence to show Defendant did anything to breach the contract. The evidence supports the trial court’s decision on this issue, and we find no error in the trial court’s conclusion that Defendant breached the cattle care agreement or in its entry of judgment on this claim in favor of Plaintiff. Defendant also argues that when the trial court entered judgment in his favor on his counterclaim to recover the $30,000 loan to Plaintiff, he was then entitled to an attorney fee as the prevailing party. We find no error in the trial court’s denial of attorney fees. We affirm the judgment of the trial court on all issues under review except the trial court’s denial of Defendant’s request for costs related to his breach of contract claim. The denial of Defendant’s request for costs on this claim is reversed and the matter remanded to the trial court to determine the amount of costs to be awarded. AFFIRMED IN PART, REVERSED AND REMANDED IN PART. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur.
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(Division No. 3) Friday, May 28, 2010 106,704 — In Re the Marriage of Duechting: Jay Duetchting, Petitioner/Appellant, vs. Debbie Duechting, Respondent/Appellee. Appeal from the District Court of Cleveland County, Oklahoma. Honorable Stephen W. Bonner, Judge. In this dissolution of marriage action, Husband appeals several aspects of the trial court’s Decree, including the finding of a common law marriage, the award of marital debt, and the decisions regarding custody and visitation. The only evidence in the record of a common-law marriage in December 1996 (when the trial court determined the marriage to have begun) is the fact that the parties began living together in November 1996. We find the determination of a common law marriage beginning in 1996 is against the clear weight of the evidence. The first time the evidence can be said to be clear and convincing regarding the parties’ mutual consent and intent is December 10, 1997, when undisputed evidence shows Husband applied for a life insurance policy listing Wife as his spouse. The trial court’s order finding the parties were married on December 17, 1996 is reversed, and remanded for recalculation of the division of retirement assets with a marriage date of December 10, 1997. The trial court considered the parties’ financial situations, the nature of the credit card debt, and Wife’s ability to pay. The trial court’s determination that Husband assume responsibility for the credit card debts is equitable considering the nature of credit card debt and Wife’s ability to pay. No reversible error is shown. Husband is employed as a commercial airline pilot. His work schedule varies greatly each month. The court’s visitation order gives the appearance of stability and predictability with a seven-day rotation. Because this seven-day rotation schedule does not provide for greater predictability or stability and as applied, deprived the children of the recommended time with Husband, we find the court’s custody and visitation award was against the clear weight of the evidence and contrary to the best interest of the children. The custody and visitation order is reversed and remanded for the appointment of a parenting plan coordinator to schedule monthly visitation as proposed by the guardian ad litem. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. Vol. 81 — No. 16 — 6/5/2010
107,113 — Marcia Holbrook, Plaintiff/Appellant, vs. Dr. Mark Argo, d/b/a Owasso Dental Care, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rebecca Nightingale, Judge. In this dental malpractice action, Appellant (Holbrook) appeals from the trial court’s orders granting summary judgment in favor of Appellee (Dr. Argo) and denying Holbrook’s Motion for New Trial and Motion to Vacate Summary Judgment. Holbrook contends Dr. Argo breached his duty to render medical care and treatment in a competent and professional manner causing temporary and permanent injury. Dr. Argo contends he followed proper protocol and denies he violated the appropriate standard of care in his treatment of Holbrook. Holbrook presented no evidence to contradict Dr. Argo’s evidence that he complied with the appropriate standard of care. The trial court did not err in granting summary judgment in favor of Dr. Argo. Likewise, there was no abuse of discretion in denying Holbrook’s Motion for New Trial and Motion to Vacate Summary Judgment. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 107,379 — Mary Roshawn Jones, Plaintiff/ Appellant, vs. State of Oklahoma, ex rel., Office of Juvenile Affairs, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Deborah Shallcross, Judge. Plaintiff/Appellant Mary Roshawn Jones seeks review of the trial court’s order granting the motion for summary judgment of the Defendant/Appellee State of Oklahoma, ex rel., Office of Juvenile Affairs (OJA), on Jones’ claim to damages for termination of her employment. In this accelerated review proceeding, Jones challenges the trial court’s order as affected by errors of law and fact. We hold the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, 40 O.S. Supp. 2005 §§551, et seq., §563(A) requires that, if the employer provides an administrative remedy, the affected employee must exhaust all of the employer’s internal administrative appeal procedures before commencement of a civil action in the district court. In the present case, it is undisputed that Jones did not pursue or exhaust all her administrative appellate remedies prior to commencement of this action. Her failure is fatal. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J. and Mitchell, J., concur. 107,703 — In the Matter of L.S.C.; I.L.C.; M.M.C. and C.R.C., Adjudicated Deprived
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Juveniles: Lucinda Marie Chupco, Appellant, vs. State of Oklahoma, ex rel, Department of Human Services, Appellee. Appeal from the District Court of Pottawatomie County, Oklahoma. Honorable John D. Gardner, Judge. Appellant (Mother) appeals the trial court’s judgment entered upon a jury verdict terminating her parental rights to her natural children. The parental rights of the natural father of L.S.C. were also terminated and he does not appeal. The natural fathers of the other children are unknown. Each of the children is an Indian child under the Oklahoma Indian Child Welfare Act, 10 O.S. 2001 §40 et seq., and the Federal Indian Child Welfare Act of 1978, 25 U.S.C.A. §1901 et seq. (jointly referred to as ICWA). The Seminole Nation was notified of and appeared at the proceeding and recommended the termination of Mother’s parental rights. The State’s evidence supports the jury’s conclusion that beyond a reasonable doubt, Mother’s continued custody of the children would result in serious damage to the children. Three witnesses testified Mother’s long time substance abuse and inability to maintain employment or a permanent residence would harm the children. Although Mother initially made some effort to correct the deficient conditions, Mother ceased attending the programs or improving herself and was arrested for two felony DUIs and incarcerated. The uncontradicted evidence further demonstrated the three oldest children have been in DHS custody for almost five years and the youngest child has been in DHS custody since her birth. Although we affirm the jury’s verdict, we find the trial court’s order is flawed as it fails to contain certain findings required by Rule 8.2, District Court Rules, 12 O.S.2001, Ch. 2, App. We remand this case with instructions to the trial court to take such actions as are necessary to correct these deficiencies in the final order. AFFIRMED AND REMANDED. Opinion by Bell, V.C.J.; Joplin, P.J.; and Mitchell, J., concur. (Division No. 4) Thursday, May 20, 2010 106,370 — In Re The Matter of K.H. and C.R.H., Deprived Children. Valerie S. Hinton and Constance O. Hinton, Appellants, v. State of Oklahoma and Kerry R. Hollis, Appellees. Appeal from an Order of the District Court of Canadian County, Hon. Robert E. Davis, Trial Judge, approving an agreed order granting exclusive custody of two previously adjudicated children to their biological father. Appellants failed to show cause why this appeal should not 1408
be dismissed for failure to timely commence the appeal due to failure to preserve any issues of error, for failure to timely file a brief, and for lack of standing and authority to prosecute this appeal. APPEAL DISMISSED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. 107,046 — In Re The Marriage of: Anna M. Leslie, Petitioner/Appellee, v. Kevin Leslie, Respondent/Appellee. Appeal from an Order of the District Court of Oklahoma County, Hon. Donald L. Deason, Trial Judge. The trial court respondent, Kevin Leslie (Husband), appeals from a Decree of Dissolution of Marriage entered in an action with the Petitioner, Anna M. Leslie (Wife). Husband challenges the amount of child support ordered to be paid based upon income imputed to him. Husband’s remaining contentions relate to the property division, debt assignment and a trust fund. The record shows that Husband’s father established an irrevocable trust. The beneficiaries are the parties’ two sons. The Trust is not marital property. Therefore, this Court concludes that the trial court erred by ordering Husband to reimburse Wife $60,000.00, and appointing her custodian of that fund. Paragraph 12 of the Decree of Dissolution of Marriage is vacated. The trial court fixed Husband’s base child support at $490.45. His income was attributed based upon earning history, his current activities in his business and his ability. Therefore, the trial court’s judgment regarding child support is affirmed. Husband challenges the trial court’s award to Wife of $90,000.00 as her share of marital property. His contentions are: (1) the trial court overvalued the residence and the business; and (2) the trial court failed to compute the net equity of the residence by taking into account a loan due from Husband to his mother, the proceeds of which went into the remodel and reconstruction of the residence. The trial court’s decision regarding disposition of the marital estate is not against the clear weight of the evidence nor contrary to law. Therefore, this aspect of the Decree is affirmed. Therefore, the Decree of Dissolution is vacated in part and affirmed in part. VACATED IN PART AND AFFIRMED IN PART. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. 107,930 — Patricia Hawk Wing and Bernard Hawk Wing, Plaintiffs/Appellants, Jay D. Lorton, M.D., and Eastern Oklahoma Orthopedic Center, Inc., Defendants/Appellees. Appeal from an Order of the District Court of Tulsa
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County, Hon. Deborah Shallcross, Trial Judge. The trial court plaintiffs, Patricia Hawk Wing (Wing) and Bernard Hawk Wing (Husband) appeal a summary judgment in favor of the defendants, Jay D. Lorton, M.D. (Lorton) and Eastern Oklahoma Orthopedic Center, Inc. (EOOC). The issue for summary judgment is: Did Wing know, or should she have known, through the exercise of reasonable diligence, of the existence of the condition complained of, that is negligent treatment for her broken foot, more than two years prior to the date she filed her action? The record shows that Wing and her husband each believed that the treatment being received was wrong and malpractice. Their views existed before and after the x-ray and diagnosis in April 2006. Here, when the record is viewed in a light most favorable to the plaintiffs, the result is that they knew, or should have known, that they had a claim for treatment malpractice more than two years prior to the date they filed their petition. It may be that they did not know, or should have known, of the full nature of the consequences of the alleged treatment malpractice. The limitations period governing actions will run even though ultimate damage is unknown or unpredictable. The focus of all Oklahoma decisions is on awareness of the injury itself and not upon the consequences of the injury, absent fraud or misrepresentation. Therefore, the judgment of the trial court is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Goodman, J., concurs, and Gabbard, P.J., dissents. Monday, May 24, 2010 107,562 (cons. w/107,566) — J. Lynn Bock, et al., Plaintiffs/Appellees, v. Robert E. Slater, Jr., et al., Defendants/Appellants, and Woodward Hotel Corporation, an Oklahoma Corporation d/b/a Northwest Inn of Woodward, Oklahoma, et al., Nominal Defendants/Appellants, and Charlotteville Hotel Corportion, an Oklahoma Corporation, et al., Nominal Defendants. Appeal from Order of the District Court of Oklahoma County, Hon. Patricia G. Parrish, Trial Judge, denying Defendants’ motion to cancel notices of lis pendens as to two hotel properties in this shareholders’ derivative action against Defendants alleging that Defendants wrongfully diverted more than $5 million and misappropriated the hotels’ assets for personal gain. The trial court did not err in denying cancellation of the notice as to hotel property located in Woodward, Oklahoma, based on Plaintiffs’ evidence that the property was involved in or affected by the lawsuit, that Defendants had the power to convey Vol. 81 — No. 16 — 6/5/2010
and encumber the property, and that the equities favored Plaintiffs. The court erred in denying Defendants’ motion to cancel lis pendens as to hotel property located in Cocoa Beach, however. Plaintiffs failed to demonstrate that Defendants owned a majority or controlling interest in the entity that owned the latter property, or that Defendants otherwise had the power to sell or encumber that property. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs; and Rapp, J., not participating. Tuesday, May 25, 2010 106,880 — In re the Marriage of: Marian Ann Francis, now Jackson, Petitioner/Appellant, v. James E. Francis, Respondent/Appellee. Appeal from an Order of the District Court of Le Flore County, Hon. Danita G. Williams, Trial Judge, denying Mother’s motion to reconsider and stay the trial court’s Order finding her in direct contempt, denying her motion to modify visitation, and granting the emergency Motion to Change Custody filed by James Francis. As her primary allegation of error, Mother alleges that the trial court erred in changing permanent custody of the minor children from Mother to Father. This Court finds the trial court’s finding that a material and substantial change occurred affecting the temporal, physical, and mental welfare of the children and that it was in the children’s best interest to modify custody was not against the clear weight of the evidence. Thus, this Court finds Mother’s argument to be without merit. Mother also argues the trial court erred in giving more weight to the GAL’s report than to the evidence presented by Mother. However, a review of the record does not indicate that the trial court relied on the GAL’s report to the exclusion of the remaining evidence presented by both Mother and Father nor does it show that the court gave more weight to the GAL’s report. Thus, this Court finds this allegation of error to be unsupported by the record. Mother raises various allegations of error concerning the trial court’s finding of the existence of a material and substantial change of circumstances affecting the mental well being of the minor children. Here, the trial court’s decision was not clearly against the weight of the evidence and thereby did not constitute an abuse of discretion. Thus, the trial court did not err in denying Mother’s motion to reconsider the trial court’s decision modifying permanent custody from Mother to Father. As to the trial court’s
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finding that Mother “voluntarily, knowingly and willfully violated Court ordered Visitation Requirements” and, therefore, was in contempt, Mother argues the trial court erred in considering post-filing allegations of contempt and that the court’s finding was not supported by the evidence. The trial court found Mother to be in contempt based on her actions that were not detailed in Father’s motion for contempt. Father failed to comply with the statutory requirements of Title 21 O.S.2001, § 567, by not setting forth in sufficient particularity the facts allegedly constituting the contempt. Thus, Mother was not given notice of these allegations of contempt and given the opportunity to properly defend against these allegations. This Court finds the trial court erred in finding Mother in contempt. The trial court’s finding that Mother was in contempt is reversed. AFFIRMED IN PART AND REVERSED IN PART. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. Wednesday, May 26, 2010 107,319 — Cynthia Nunn, for herself and all others similarly situated, Plaintiffs/Appellants, vs. Lawton Public Schools, a/k/a Board of Education of Independent School District No. 8 of Comanche County, Oklahoma, Defendant/ Appellee. Appeal from an Order of the District Court of Comanche County, Hon. Allen McCall, Trial Judge. The trial court plaintiffs, Cynthia Nunn for herself and all others similarly situated (Nunn Class), appeal an Order granting judgment to the defendant, Lawton Public Schools, a/k/a Board of Education of Independent School District No. 8 of Comanche County, Oklahoma (School District). Nunn is a representative plaintiff. The parties stipulated to all of the facts. In the 1997-98 school year, the State began making contributions to teachers’ retirement accounts. The School District began withholding payroll taxes (medicare and social security) attributed to the contributions. In 1998, the Internal Revenue Service directed the School District to cease the withholding because the contributions were not taxable. Nevertheless, the School District did not cease the withholding of payroll taxes on the contributions. Upon discovering the error, the School District ceased the withholding and took steps to obtain a refund of the withholding. Refunds were issued for the years 2002 through 2005, but a federal statute of limitations precluded refunds for prior years. This left $234,015.95 in unrecovered withholding. The Nunn Class sued the School District to recover the withholding from October 1998 to Decem1410
ber 2001. During all applicable years, the parties had a written contract and the terms did not materially change in the affected years. The contract does not refer to computation of payroll taxes. The contract did not contain a specific provision obligating the School District to compute and deduct payroll taxes in a correct amount or to arrive at the correct pay. The trial court found that the withholding error did not reduce the salary fixed by the contract and that the contract did not contain an express obligation to compute and deduct a correct amount of payroll taxes withholding. The trial court declined to imply such a provision. The Nunn Class asks the court to supply the term or duty, by implication, to have the contract provide that School District “be required to properly compute and pay not only the correct gross pay but also the correct net pay” to the teachers. The Nunn Class seeks to add to the contract a standard of performance provision. Here, there is not even a vague promise of an error-free wage computation because there is no promise at all. The courts may not supply, by implication, the term or duty that the Nunn Class seeks to have supplied to the contract. The problem is not the absence of an essential term of the agreement. Conversely, the problem is with the School District’s performance of the salary payment provisions of the contract. The courts may not impose financial responsibility on the basis of supplying a term or duty by implication. The School District did not breach the contract and an additional term or duty cannot be supplied to form the basis for a finding of a breach of contract. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. Friday, May 28, 2010 107,355 — Craig Phillips and Becky Phillips, and/or On Behalf of Minor Family Members, M.P. and G.P., Petitioners/Appellees, v. Oscar Leroy Phillips, Respondent/Appellant. Appeal from an Order of the District Court of Hughes County, Hon. Timothy L. Olsen, Trial Judge, issuing an Order of Protection against Oscar Leroy Phillips and on behalf of Petitioners. Leroy first argues the trial court erred in issuing a protective order against him on the basis of harassment because there was insufficient evidence to establish the elements of harassment. The Protection for Domestic Abuse Act (Act) provides an avenue for a victim of domestic abuse, stalking, or harassment to seek relief by obtaining a protective order. 22 O.S. Supp.
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2009, § 60.2. The clear purpose of the Act is preventive. Curry v. Streater, 2009 OK 5, ¶ 10, 213 P.3d 550, 555. After a review of the appellate record, this Court finds the trial court did not abuse its discretion in finding there was sufficient evidence to warrant entering a Final Order of Protection against Respondent. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. 107,009 — Greg Deffner and Get LLC, an Oklahoma Limited Liability Company, Appellants, v. Kay County District Judge D. W. Boyd, Jackson County District Attorney, John Wampler, and Custer County District Attorney, Dennis A. Smith, Appellees. Appeal from an Order of the District Court of Kay County, Hon. D. W. Boyd, Trial Judge. The trial court petitioners, Greg Deffner (Deffner) and Get L. L.C. (Get) appeal an Order Denying Petition For Writ of Mandamus. The named appellees are: Kay County District Judge D. W. Boyd; Jackson County District Attorney John Wampler (Wampler); and, Custer County District Attorney, Dennis A. Smith (Smith). The facts are not disputed. A grand jury was convened in Kay County, Oklahoma. The grand jury filed its report on December 18, 2008. The grand jury returned no indictments and was discharged. On January 21, 2009, Deffner and Get filed a Petition For Writ Of Mandamus And Brief In Support. The petition alleged that the grand jury report makes reference to Get L.L.C. (Get Real) and that such reference is unauthorized. The petition requests that mandamus issue to cause the reference to be expunged from the report. The petition next alleges that the language of the grand jury report shows that the grand jury did not receive correct instruction as to the nature of the evidence it could consider. The petition asked that the court recall and reempanel the grand jury. Wampler and Smith acted as legal advisors to the grand jury and appeared at the hearing in this case before Judge Boyd. They are not parties and no allegations for relief are directed against them. Therefore, this appeal is dismissed as to Wampler and Smith. Here, the mandamus action was never fully initiated. At best, Judge Boyd was asked to amend the grand jury report in his capacity as presiding judge. If Judge Boyd had a legal duty to amend the report and failed to do so, then application for mandamus had to be made to a higher authority to compel him to do so. In short, there is no mandamus action here and
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Judge Boyd is not a party to any mandamus action. To the extent that this case is an appeal of a denial of a writ of mandamus, Judge Boyd is dismissed from the appeal and the appeal is dismissed. This Court will consider and review this appeal as an appeal from an order denying relief in an action in the nature of ancillary relief in a grand jury proceeding. The questions for review are whether Appellants are entitled to relief and whether they have standing to seek the relief requested. Relying on 22 O.S.2001, § 346, Deffner and Get seek to have the reference to “Get Real Cable System” expunged from the grand jury report. there is no accusation or indictment as to any of them. Third, Deffner and Get are not alleged to be public officials, and Section 346 clearly applies only to public officials. Thus, Section 346 does not apply to provide a basis to expunge the reference to “Get Real Cable System” contained in the grand jury report. Next, Deffner and Get asked that the panel be recalled and re-empaneled. Appellants have not presented any authority establishing that this may be done. The grand jury statutes of this State do not provide for such action. The judgment of the trial court denying all other relief is affirmed. APPEAL DISMISSED AS TO APPELLEES KAY COUNTY DISTRICT JUDGE D. W. BOYD; JACKSON COUNTY DISTRICT ATTORNEY JOHN WAMPLER; AND, CUSTER COUNTY DISTRICT ATTORNEY, DENNIS A. SMITH, INDIVIDUALLY OR IN THEIR OFFICIAL CAPACITIES. APPEAL DISMISSED AS TO CLAIM FOR WRIT OF MANDAMUS. THE JUDGMENT OF THE TRIAL COURT DENYING ALL OTHER RELIEF IS AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. ORDERS DENYING REHEARING (Division No. 3) Wednesday, May 12, 2010 107,076 — T.K. Stanley, Inc. and Ace American Insurance, Petitioners, vs. Willie Earl Hatton, Jr., and The Workers’ Compensation Court, Respondents. Petitioners’ Petition for Rehearing and Brief in Support, filed May 6, 2010 is DENIED. 106,204 — Water Products of Oklhaoma, an Oklahoma Corporation, Plaintiff/Appellee, vs. Floyd DeSelm, an individual, Defendant/ Appellant. Defendant/Appellant’s Petition for Rehearing and Brief, filed March 29, 2010 is DENIED.
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Vol. 81 — No. 16 — 6/5/2010
OFFICE SHARE – Two medium private offices available; reception/waiting area; large conference room, full kitchen, on site file storage, copy machine, internet access, fax machine and receptionist. Flexible arrangement in sharing overhead of approximately $750 - $850 per month. Case sharing opportunities with 3 practicing attorneys. Call Annette at Fortune Law Center (405) 525-1011.
FOR RENT HOUSE FOR RENT NW OKC. 3 bedroom or 2 + wood-paneled den/office. Formal living. Formal dining. Central Heat/Air. Hardwood floors. Granite countertops. Washer/dryer hookup. Lease + deposit. Near Shartel Shopping Center, I-44, Broadway Extension. Call (918) 749-4222 or e-mail mberlaw@aol.com.
POSITIONS AVAILABLE THE SECRETARY FOR THE COMMISSIONERS OF THE LAND OFFICE is hiring an Assistant General Counsel, Legal Division (www.clo.state.ok.us). A successful applicant must be licensed to practice law in the state of Oklahoma and shall possess the cognitive ability and professional skills to effectively and professionally perform legal tasks in accord with years of experience. A successful applicant must be able to travel locally and out of town when necessary and must have a valid driver’s license. Experience in civil litigation, personnel, collections or oil and gas would be preferred. Offers of employment are contingent upon an applicant’s successful security screening results. The Land Office is an equal employment opportunity employer. Cover letter, resume and writing sample are required as part of the application process and must be e-mailed to guy.hurst@clo.state.ok.us.
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POSITIONS AVAILABLE
POSITIONS AVAILABLE
ADVANCE YOUR LEGAL CAREER AT LIBERTY MUTUAL – The Oklahoma City field legal office is looking for an attorney. Applicant should have 1-4 years’ experience as an attorney, in workers’ compensation and insurance defense. Computer skills are required, as well as good organizational skills. We offer a comprehensive benefits plan. Please apply at www.libertymutual.com/careers/searchjobs/job#13758.
KIRK & CHANEY, A MIDSIZE AV DOWNTOWN OKC FIRM, seeks experienced attorney to assist with commercial litigation, family law and insurance defense practice. 4 - 7 years experience required. Some prior experience in insurance defense is essential. Salary is commensurate with experience. Please send resume, law school transcript and two recent writing samples to Kirk & Chaney, attn: Ms. Chris Leigh, 101 Park Avenue, Suite 800, Oklahoma City, OK 73102.
DOWNTOWN OKLAHOMA CITY AV RATED FIRM has immediate opening for attorney with 3-8 years experience in commercial litigation and bankruptcy. Compensation commensurate with experience; excellent benefits. Send resume with writing sample to gbryant@mswerb.com. CONSUMER ADVOCATE I: Performs administrative & professional work in effectively representing consumer interests by partnering with consumers in resolving complaints, collaborating with the facility administration regarding problems and resolution measures, actively participating on committees and working to educate staff and public on consumer’s rights matters, assisting the Advocate General in resolving consumer rights issues, training staff, consumers, and the public on mental health and substance abuse issues, and builds consensus in resolving complex issues. Requires bachelor’s degree and two (2) years of experience in advocacy work, community outreach, or representation of individuals or vulnerable populations in a courtroom setting or equivalent combination of education and experience. Preference may be given to candidates with experience in advocating for consumers of behavioral health services. Multiple openings in locations across Oklahoma which may include the Oklahoma City and Tulsa Metropolitan areas, Fort Supply and Holdenville. $34,000 — $43,010. OK Department of Mental Health & Substance Abuse Services (ODMHSAS) offers excellent benefit & retirement packages; reference job title & #2010-14 with preferred location & apply to address below with a copy of your most recent performance evaluation. Reasonable accommodation to individuals with disabilities may be provided upon request. Application period: 6-2-10 to 6-18-10. EOE. ODMHSAS - Human Resources, 2401 NW 23rd, Suite 85, Oklahoma City, OK 73107, Fax (405) 522-4817, humanresources@odmhsas.org. NW OKC AV RATED FIRM seeks civil litigation associate with 1-5 years of litigation experience. Strong research and writing skills a must. Applicant must be motivated and capable to assume various responsibilities, including brief writing, discovery, and court appearances throughout state. Salary is commensurate with experience and exceptional benefits offered. Send cover letter, resume and writing sample to “Box V,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73512.
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LEGAL ASSISTANT/RECEPTIONIST NEEDED for South OKC Law office. Applicant will provide administrative support to attorneys and staff members. Position requires strong organizational and interpersonal skills. Managing client demands is a must. Experience with a multiline phone system is preferred. Salary is commensurate with experience. Please fax resume and references to (408) 692-7670 or by e-mail to kyle@bmclawok.com. LOCAL COMPANY SEEKS ATTORNEY with extensive experience in complex product liability litigation. This individual will provide legal counsel for lawsuits and develop company policies on legal matters. Must be a graduate of an accredited law school with minimum 10 years experience and be admitted into the state bar. Must also be knowledgeable on federal, state and local laws, and have the ability to analyze case law. Please e-mail resume to marcy.crawmer@adeccona.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.
The Oklahoma Bar Journal
Vol. 81 — No. 16 — 6/5/2010
Vol. 81 — No. 16 — 6/5/2010
The Oklahoma Bar Journal
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