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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 MAY 2010 31

OBA Closed – Memorial Day Observed

JUNE 2010 2

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

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Oklahoma Bar Association

table of

contents May 29, 2010 • Vol. 81

• No. 15

page 1275 Events Calendar 1278 Index to Court Opinions 1281 Supreme Court Opinions 1288 2010 Bar Exam Applicants 1292 Court of Criminal Appeals Opinions 1304 Court of Civil Appeals Opinions 1356 OBA Board of Governors Vacancies and Nominating Petitions

1360 Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court 2010 OK 24 PATRICIA L. PARHAM, Petitioner/Appellee, v. STEVEN M. PARHAM, Respondent/Appellant. No. 107,281............................................................................................... 1281 2010 OK 40 STATE OF OKLAHOMA, Petitioner, v. CLYDE POWELL, Respondent. No. 106,175.......................................................................................................................................... 1281

Index To Opinions Of Court of Criminal Appeals 2010 OK CR 8 BILLY GENE MARSHALL, Appellant v. STATE OF OKLAHOMA, Appellee. Case No. F-2008-1170.................................................................................................................. 1292

Index To Opinions Of Court of Civil Appeals 2010 OK CIV APP 48 MICHAEL W. LIPPITT, Plaintiff/Appellee, v. FARMERS INSURANCE EXCHANGE, TRUCK INSURANCE EXCHANGE, FIRE INSURANCE EXCHANGE, MID-CENTURY INSURANCE COMPANY, FARMERS NEW WORLD LIFE INSURANCE COMPANY and FARMERS INSURANCE COMPANY, Defendants/Appellants. Case No. 106,229............................................................................................... 1304 2010 OK CIV APP 44 THE TOWN OF GOLDSBY, OKLAHOMA, Plaintiff/Appellee, vs. THE CITY OF PURCELL, OKLAHOMA, Defendant/Appellant. Case No. 106,925.............. 1308 2010 OK CIV APP 47 DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff/ Appellee, v. SANDI A. ROBERTS, Defendant/Appellant, and SPOUSE OF SANDI A. ROBERTS, If Married; TOM HERRING; NEW CENTURY MORTGAGE CORPORATION; DEUTSCHE BANK NATIONAL TRUST COMPANY UNDER THE POOLING AND SERVICES AGREEMENT DATED AS OF SEPTEMBER 1, 2002; MORGAN STANLEY DEAN WITTER CAPITAL I INC. TRUST 2002-NC4 BY AND THROUGH ITS ATTORNEY IN FACT, LITTON LOAN SERVICING, LP, a Delaware Limited Partnership; JOHN DOE; and JANE DOE, Defendants. Case No. 107,491...................................... 1311 2010 OK CIV APP 49 DUNBAR ENGINEERING CORPORATION, Plaintiff/Appellee, v. RHINOSYSTEMS, INC., Defendant/Appellant. Case No. 106,109........................................... 1314 2010 OK CIV APP 46 ANNETTE M. TRIPLETT, Petitioner, v. MYSTAF MEDICAL; ZURICH AMERICAN INSURANCE CO.; and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 107,277........................................................................................ 1317 2010 OK CIV APP 50 EDITH JANE WILCOXSON, Petitioner/Appellant, v. WOODWARD COUNTY EMS, COMPSOURCE OKLAHOMA and THE OKLAHOMA WORKERS COMPENSATION COURT, Respondents/Appellees. Case No. 106,678............ 1319 2010 OK CIV APP 41 IN THE MATTER OF CHILDREN M.B., Jr. and M.B.: AMY BURNSIDE, Natural Mother, Appellant, vs. STATE OF OKLAHOMA, Appellee. Case No. 107,618.................................................................................................................................................. 1322 2010 OK CIV APP 45 POTEAU VALLEY IMPROVEMENT AUTHORITY, Appellant, v. OKLAHOMA PUBLIC EMPLOYEES RETIREMENT SYSTEM, Appellee. Case No. 105,915.................................................................................................................................................. 1325 2010 OK CIV APP 38 IN RE THE MARRIAGE OF JOSHUA SLATE, Petitioner/Appellee, and AMBER CHADWICK, formerly SLATE, Respondent/Appellant. Case No. 106,134.................................................................................................................................................. 1328

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2010 OK CIV APP 40 JIMMY R. SCOTT, by and through DONNA SUE (SCOTT) BRAME, Personal Representative, Plaintiff/Appellant, vs. INDEPENDENT SCHOOL DISTRICT NO. 22 OF PUSHMATAHA COUNTY, STATE OF OKLAHOMA, a/k/a MOYERS PUBLIC SCHOOLS, Defendant/Appellee. Case No. 106,616................................. 1331 2010 OK CIV APP 42 IN RE THE MARRIAGE OF: JOHN PERRIE HUSBAND, Petitioner/Appellee, vs. DARLENE MARIE HUSBAND, Respondent/Appellant. Case No. 106,584.......................................................................................................................................... 1335 2010 OK CIV APP 39 DALE McALARY and PEARL McALARY, Plaintiffs/Appellees, v. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF HUMAN SERVICES; HOWARD HENDRICK, DIRECTOR OF OKLAHOMA DEPARTMENT OF HUMAN SERVICES; OKLAHOMA HEALTH CARE AUTHORITY; MIKE FOGARTY, DIRECTOR OF OKLAHOMA HEALTH CARE AUTHORITY; HOWARD HENDRICK, individually; and, GERRY MOORE, individually, Defendants/Appellants. Case No. 106,308................................................................................................................................ 1340 2010 OK CIV APP 43 RONALD FRANTZ, Plaintiff/Appellant, vs. D’AURIZIO DRYWALL AND ACOUSTICS, an Oklahoma corporation, NICK D’AURIZIO, personally, Defendants/Appellees, and TMG STAFFING SERVICES, INC., a foreign corporation, COLLEEN THOSTESON, personally, ROSEMARY McKIBBEN, personally, JEFF GOODSON, personally, and TRANSPACIFIC INTERNATIONAL INSURANCE CO., LTD., a foreign corporation, Defendants. Case No. 106,812........................................................ 1346 2010 OK CIV APP 53 TERRY G. STEPHENS, Petitioner, v. OKLAHOMA HIGHWAY PATROL, COMPSOURCE OKLAHOMA, and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 107,255........................................................................................ 1349 2010 OK CIV APP 52 DEPARTMENT OF HUMAN SERVICES, Plaintiff/Appellee, v. MARK AUSTIN, Defendant/Appellant, v. KELLY SHADID, Third-Party Appellee. Case No. 106,473................................................................................................................................ 1351 2010 OK CIV APP 51 JACK ROTHROCK and MARY ROTHROCK, Plaintiffs/Appellees, v. HAROLD KEITH HARTLEY, GILBERT HUFFMAN, ELSIE K. WOOD, if living, and HAROLD KEITH HARTLEY, GILBERT HUFFMAN, and ELSIE K. WOOD, if deceased, their unknown heirs, assigns and successors, and STATE OF OKLAHOMA ex rel. OKLAHOMA TAX COMMISSION, Defendants, and SANDRA L. HARTLEY BENEFIELD, Petitioner/Appellant Case No. 105,836.................................................................. 1352

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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 24

2010 OK 40

PATRICIA L. PARHAM, Petitioner/Appellee, v. STEVEN M. PARHAM, Respondent/ Appellant.

STATE OF OKLAHOMA, Petitioner, v. CLYDE POWELL, Respondent.

No. 107,281. May 11, 2010 CORRECTION ORDER ¶1 The opinion filed by this Court in the above styled and numbered case is hereby corrected on page 11, beginning at ¶ 18, line 10, to add footnote 8, at the end of the sentence, “If the parties wished to apply special conditions for modification of support alimony or child support, they could have done so.” The text of the footnote to be inserted is as follows: In recognizing that the parties have some latitude to agree upon special conditions for termination or modification of child support, we do not depart from this Court’s long standing rule that an agreement of the parties as to child support is not binding upon the court, nor can such agreement affect the power of the court to modify an award of child support. Parkey v. Parkey, 1962 OK 110, ¶¶ 18-19, 371 P.2d 711, 714. Enforcement of any conditions concerning the termination or modification of child support that differ from the conditions provided by statute must always be guided by the best interests of the child. ¶2 On page 11, paragraph number “¶20” is corrected to read ¶19, and paragraph number “¶21” is corrected to read ¶20. ¶3 In all other respects the court’s opinion remains unchanged. ¶4 This correction shall extend the time for filing rehearing, commencing on the date of this order. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 10TH DAY OF MAY, 2010. /s/ James E. Edmondson CHIEF JUSTICE ¶5 ALL JUSTICES CONCUR. Vol. 81 — No. 15 — 5/29/2010

No. 106,175. May 11, 2010 ATTEMPTED APPEAL FROM ORDER OF DISTRICT COURT OF CRAIG COUNTY GRANTING HABEAS CORPUS ¶0 Respondent, committed to state psychiatric hospital after being found not guilty of murder by reason of insanity, successfully sought release from confinement by original proceeding in habeas corpus before the District Court of Craig County, Hon. James D. Goodpaster, District Judge. Upon State’s request, the District Court certified its order for interlocutory appeal and State sought certiorari for its attempted appeal under 12 O.S. 2001, §952(b)(3); we find appeal does not lie from an order granting habeas corpus and we dismiss the attempted appeal for lack of jurisdiction. ATTEMPTED APPEAL DISMISSED. Gene Haynes, District Attorney, James W. Ely, Jr. Assistant District Attorney, Vinita, Oklahoma, Attorneys for Petitioner, Cathy Stocker, District Attorney, John L. Scott, Assistant District Attorney, Enid, Oklahoma, Attorneys for Petitioner. Winston H. Connor, II, Stockwell and Connor, Miami, Oklahoma, Attorney for Respondent. EDMONDSON, C.J. ¶1 This is an attempted appeal by the State of Oklahoma from the judgment of the District Court of Craig County allowing a writ of habeas corpus. In 1990, Mr. Powell was committed by the District Court of Garfield County to the hospital for psychiatric treatment after he was found not guilty by reason of insanity of the murder of his mother. The writ ordered the release of Clyde Powell from the Oklahoma Forensic Center, formerly Eastern State Hospital, based on evidence that Mr. Powell is now sane. Because there is no appeal from an order granting habeas corpus, we dismiss it.

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¶2 Under the Constitution and statutes of Oklahoma, the Supreme Court, Court of Criminal Appeals, all other appellate courts and the District Courts have concurrent original jurisdiction to hear and determine habeas corpus. Art. 7, §§ 4,7, Oklahoma Constitution; 20 O.S. 2001,§ 41; 12 O.S. 2001, §§1333-1355. See also Rules 1.190 — 1.194 of the Oklahoma Supreme Court Rules, 12 O.S. Ch. 15, App. 1, “Original Jurisdiction Proceedings Before the Supreme Court.” ¶3 The state’s arguments to the contrary notwithstanding, there is no question that Mr. Powell had a right to bring this action in habeas corpus to seek his release from confinement. Title 12 O.S. 2001, §1331 provides that “Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal.” Additionally, as an individual found to be insane and dangerous to the public peace and safety and consequently committed to the custody of the Department of Mental Health and Substance Abuse Services under 22 O.S. 2001, §1161, Mr. Powell’s constitutionally and statutorily assured right to pursue his discharge by habeas corpus is also recognized in Title 43A of the Oklahoma Statutes. Section 1-108 of Title 43A provides: “Anyone in custody as a person in need of treatment . . . pursuant to the provisions of this title, is entitled to a writ of habeas corpus . . . . Upon the return of such writ, the fact of his mental illness shall be inquired into and determined.” ¶4 It is well-settled in Oklahoma that the order of the district court in a habeas corpus proceeding is not subject to review on appeal. Since the beginning of the last century, this Court and the Court of Criminal Appeals have held that no appeal can be taken from a decision in habeas corpus discharging a petitioner restrained of his liberty. Wisener v. Burrell, 1911 OK 128, 118 P. 999; Parsons v. Childers, 1990 OK CR 16, 789 P.2d 243; Garrett v. Kerner, 1911 OK CR 253, 115 P. 1027; “The Oklahoma Courts have not wavered from this position.” Parsons, 789 P.2d at 244. Nor do appeals lie from orders in habeas corpus remanding a party to custody. Ex parte Kincade, 1944 OK 245, 151 P.2d 796; Ex Parte Logan, 1912 OK 29, 126 P. 800; Ex parte Johnson, 1908 OK CR 35, 98 P. 461; State v. Higgins, 1943 OK CR 50, 137 P.2d 273. ¶5 In Wisener, this court dismissed the appeal brought by a county sheriff from an order of 1282

the district court in habeas corpus discharging a prisoner held in custody for extradition. The court recognized that statutory authority and court decisions varied among the states, but held appeals from a decision in habeas corpus discharging a person from restraint do not lie in Oklahoma. The Wisener court cited Judge Doyle’s discussion in Ex parte Johnson explaining that habeas corpus decisions were held not reviewable under general laws for appeal from all final judgments and noting that Oklahoma has no specific statutory provision for appeals in this class of cases. Judge Doyle concluded that if the legislature had intended to provide for appeals in habeas corpus, an appropriate provision would have been made in our statutes: “Its omission affords the best evidence to the contrary, and, if anything is wanting to remove all doubt, it will be found in the nature and object of this great writ as a constitutional right; its purpose being to afford a speedy remedy to a party . . . without obstructing or delaying public justice, both of which objects would be defeated by the delays consequent upon an appeal. Any other rule would operate practically to subvert the constitutional safeguards and the fundamental rights of the citizen.” Wisener, 118 P. at 1000. ¶6 Wisener also set forth with approval the following reasoning of the Supreme Court of Utah in In re Clasby, 1 P. 852 (Utah 1882): [I]f the discharge of the applicant upon a writ of habeas corpus, before a court or judge having jurisdiction, is an order or judgment from which a appeal can be taken to this court, necessarily attended with unavoidable delay, the value of the great writ as a safeguard of person liberty is, at least, greatly impaired, if it is not changed into a means of oppression. ¶7 The Wisener court emphasized that Article II, Section 10 of the Oklahoma Constitution provides that “the privilege of the writ of habeas corpus shall never be suspended by the authorities of this State,” stating: [O]ur Constitution on this subject is as broad as it may well be. Section 10 of article 2, commonly known as the “Bill of Rights,” provides in broad and comprehensive terms that “the privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.” It is to be noted that the language of the Constitution is not merely that the writ of habeas corpus shall never be suspended, but it is the privilege of the writ which is never to be

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suspended. “Privilege,” according to Webster (Webster’s New International Dictionary), means “special enjoyment of a good, or exemption from an evil or burden,” etc. “Suspended” is defined as “temporarily inactive or inoperative; held in abeyance.” Undoubtedly courts, sheriffs, and other public officers of the state are authorities thereof, and if a party invoking the privilege of this writ may be reincarcerated by a sheriff, or other officer, on the order of a court or judge of the state, pending an appeal, then unquestionably his privilege under the operation of the writ would not only be suspended, but virtually destroyed and denied. So jealous have the people been of an opportunity being afforded every citizen for a speedy determination of the righteousness of his incarceration, that they have placed the power to adjudicate that question in every court of record and judge thereof in the state. Id., at 1001. ¶8 In Ex parte Logan, 1912 OK 29,126 P. 800, we recognized that an appeal from an order in habeas corpus remanding a petitioner is not of final and conclusive character and consequently is not reviewable under general law allowing appeals from judgments. See, e.g., Wisener, 118 P. 999, Jamison v. Gilbert, 1913 OK 541, 135 P. 342-343.1 The denial of a petition for habeas corpus does not preclude a petitioner from filing another application for habeas corpus as the constitutional right of the writ is not exhausted by the first remanding order. Johnson, 98 P. 461, 462 (syllabus by the court). In Ex parte Kincade, 1944 OK 245, 151 P.2d. 796, we dismissed petitioner’s attempted appeal from the judgment of the district court of Craig County denying his application for a writ of habeas corpus for discharge from confinement at Eastern State Hospital and treated his filing as an original petition for writ of habeas corpus out of our Court. ¶9 The district court’s order in habeas corpus releasing Mr. Powell is not capable of invoking our appellate cognizance and we dismiss this appeal for want of appellate jurisdiction. In view of our decision, we do not address the other questions raised by the state. ¶10 EDMONDSON, C.J., HARGRAVE, WATT, COLBERT, REIF, JJ. — Concur ¶11 TAYLOR, V.C.J., OPALA, KAUGER, WINCHESTER, JJ. — Dissent Vol. 81 — No. 15 — 5/29/2010

TAYLOR, V.C.J., with whom OPALA and WINCHESTER, JJ. join, dissenting. I dissent. The issue of the release of this criminal defendant should be fully reviewed and determined by the original sentencing court in Garfield County pursuant to Title 22, Oklahoma Statutes, Section 1161. I would grant the relief requested by the State of Oklahoma. 1. These considerations do not apply to a habeas corpus controversy concerning the custody of a child. There the real issue is recognized as one between private parties who are in a contest of private rights which does not involve any question of personal liberty, so that matters in issue raised on the same facts which were determined in a prior proceeding should be seen as settled and final and a bar to a subsequent proceeding on the same facts. Such an order is binding and conclusive, a final order under the general law concerning appeals from final judgments. Jamison v. Gilbert, 1913 OK 541, 135 P. 342, 342343; Hedtke v. Kukuk, 1923 OK 873, 220 P. 615.

OPALA, J., with whom TAYLOR, V.C.J., KAUGER and WINCHESTER, JJ., join, dissenting ¶1 The court holds today that because an appeal does not lie from a writ of habeas corpus, the State’s quest for review of a certified interlocutory order in a habeas corpus proceeding must be dismissed. I recede from the court’s pronouncement. Wisener v. Burrell, 1911OK 128, 118 P. 999,1 the case relied on by the court, may no longer be treated as entitled to precedential force. It is in plain discord with today’s statutory regime of appealable district court decisions. I THE COURT’S REVIVAL OF ITS 1911 EXCLUSION OF HABEAS CORPUS WRIT FROM APPELLATE REVIEW IS UNSUPPORTED BY ANY VIABLE NORM OF PRESENT-DAY LEGISLATION ¶2 The petition for the command of a writ of habeas corpus now initiates a civil case that does not differ in its legal characteristics under the current pleading code2 from any other civil action.3 The command, whether issued or denied by the court, is but a functional equivalent of any other civil judgment that disposes of a claim.4 Whether the same was true in 1911 need not be here inquired into. It is enough to observe that there is no dissimilarity today. What might have been true in 1911 is utterly immaterial. What matters now is that a suit for a writ is no different in its basic complexion from any other civil case.5 Ascribing to it a categorical difference is patently incorrect. I hence conclude the writ’s command is an appealable civil judgment. This court’s pronouncement in Wisener v. Burrell does not

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need to be any longer accorded precedential value and continue to be treated as having stare decisis force. A claim’s adjudication by judgment in a civil case that takes the form of a judicial command effected by the court’s writ is no less appealable than a judgment by declaration of rights, although a civil judgment must continue to be distinguished from a judgment in a criminal prosecution.

habeas corpus writs from any form of appellate review. This court’s pronouncement is pure and simple ipse dixit. It cannot stand. Like other writs, the habeas corpus writ is a judgment that must be deemed included within the category of appealable dispositions by the district court. No forensic decision may, by mere judicial fiat, become immune to corrective relief of an appellate tribunal.

¶3 Continued segregation of habeas corpus for inclusion in some separate category by judicial fiat that is contrary to post-1984 pleading code classification of actions would be tantamount to recalling from its 1984 grave the now repealed class of nonexistent special proceedings.

¶7 I would grant certiorari to review the certified interlocutory order.

II TODAY’S EXCLUSION OF HABEAS CORPUS WRITS FROM THE BROAD CATEGORY OF CIVIL JUDGMENTS AS A BASIS FOR DENIAL OF THE BENEFIT OF AN APPEAL OFFENDS THE PROCEDURAL SYMMETRY MANDATED BY ART. 5 § 46, OKL. CONST.6 ¶4 The right of a litigant to appeal is purely statutory. Courts cannot fabricate exceptions in the absence of statutory language clearly excluding a category of litigation from the benefit of appeal. If the judiciary were allowed so to do it would enjoy the privilege of arbitrarily excluding from statutory categories those appeals which it would deem to be undesirable. There is no longer any constitutional or legislative warrant for singling out habeas corpus writs from (a) other writs as well as from (b) the broad category of civil judgments to make them unappealable. ¶5 Assuming that in Wisener v. Burrell the court intended to bar all corrective relief of habeas corpus writs (by appeals as well as by certiorari and by review through the exercise of this court’s original jurisdiction), its pronouncement is unsupported by any presently effective norm of law. The habeas corpus writ’s exclusion from the broad category of judgments, which are appealable, would clearly violate the procedural uniformity mandate of Art. 5 § 46, Okl. Const.7 Our own jurisprudence, no less than the Legislature’s enactments, must faithfully conform to the fundamental law’s prohibition against nonuniform (asymmetrical) laws on prohibited subjects.8 ¶6 In sum, there is neither statutory nor jurisprudential authority for the post-1984 bar of 1284

1. Wisener v. Burrell, 1911 OK 128, 118 P. 999, teaches that no appeal lies from the issuance or denial of a writ of habeas corpus. For early pre-1984 cases relying on Wisener, see, e.g., Ex parte Logan, 1912 OK 29, 126 P. 800 (denial of an appeal from an order in habeas corpus by one held pending extradition for a criminal prosecution); Ex parte Kincade, 1944 OK 245, 151 P.2d 796, 194 Okl. 356 (denial of an application for a writ of habeas corpus to secure release from a state hospital for the insane). 2. The Code of Civil Procedure (based on the Field Code’s factpleading regime) governed Oklahoma civil pleading before its repeal in 1984. The present Oklahoma Pleading Code, 12 O.S.2001 §2001 et seq, enacted in 1984, is patterned on the notice-pleading regime of the Federal Rules of Civil Procedure. “The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure....” 12 O.S.2001 § 2001. 3. All forms of actions at common law stand abolished since statehood. St.1893 §3882; R.L.1910 § 4650; 12 O.S.1981 § 10 (Code of Civil Procedure); 12 O.S.2001 § 2002 (1984 Pleading Code). “The provision for only one form of action ... has been characterized as the most fundamental rule of notice pleading.” Committee comment to 12 O.S.2001 §2002. The pre-1984 Code of Civil Procedure, 12 O.S. 1981 §3, recognized special proceedings as a class separate from actions. The provisions of 12 O.S.1981 § 4 defined an “action.” A “special proceeding” was defined as “every other remedy.” Two kinds of actions were recognized by the pre-1984 Code — civil and criminal. 12 O.S.1981 §6. See, e.g., State v. Scarth, 1931 OK 561, ¶10, 3 P.2d 446, 151 Okla. 178; El Reno Wholesale Grocery Co. v. Taylor, County Treasurer, 1922 OK 107, 209 P. 749, 753, 87 Okla. 140 (overruled on other grounds). Habeas corpus was a special proceeding when Wisener v. Burrell, supra note 1, was pronounced. The 1984 statutory conversion from fact to notice pleadings necessitated a fundamental change in the pattern of constituent ingredients for a more simplified procedural regime of civil litigation. Elimination of “special proceedings” was part and parcel of that comprehensive legislative reform of the law that now governs pleadings in civil cases. The 1984 Pleading Code abolished the dichotomy of civil actions and special proceedings in the previous Code of Civil Procedure, 12 O.S.1981 §§3-6. The law of Oklahoma now recognizes but two forensic causes (court cases): a civil (12 O.S.2001 §2002) and a criminal (22 O.S.2001 §10) action. The Legislature states in 12 O.S.2001 §2002 “[t]here shall be one form of action to be known as a ‘civil action.’” See committee comment to § 2002. 4. By statutory definition a “judgment is the final determination of the rights of the parties in an action” 12 O.S.2001 § 681. When the Legislature changed the system in the 1984 Code from fact to notice pleading, it did not alter the pre-existing legal definition of a judgment. A petition for a writ initiates suits in the same manner that a petition commences a lawsuit which ends in a judgment. A writ is a judgment because it resolves all issues in the case and puts an end to litigation. In Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, ¶31, 87 P.3d 598, the court declared that “issues in a mandamus proceeding are tried as in a civil action.” Even before the enactment of the current pleading code, a writ of mandamus was deemed to stand on equal footing with a judgment in an ordinary action at law, subject to review in the appellate court under similar terms. In re Epley, 1901 OK 15, 64 P. 18 , syl. 6, 10 Okla. 631. An appeal may be brought from the issuance or denial of a writ of prohibition. Umholtz v. City of Tulsa, 1977 OK 98, 565 P.2d 15. Habeas corpus is deemed to be a civil claim. Dancy v. Owens, 1927 OK 203, 258 P. 879, 884. It tests the legality of a person’s confinement. Brooks v.

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Baltz, 2000 OK 73, ¶2, 12 P.3d 467 (confinement in jail); Application of Caldwell, 1974 OK 93, ¶11, 525 P.2d 641, 642-643 (detention of minor child by custodial parent); Ex parte Kincade, 1944 OK 245, 151 P.2d 796, 194 Okla. 356 (confinement in a state hospital for the insane). Much like other available writs, that for habeas corpus is a judgment which must be included within the category of appealable dispositions of the district court. 12 O.S.2001 §952. 5. It suffices to say that Wisener v. Burrell, supra note 1, was handed down when the statutory regime of district court procedure for civil matters was vastly different. 6. The pertinent terms of Art. 5 § 46, Okl. Const., are: “The legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: *** Regulating the practice or jurisdiction of ... in judicial proceedings or inquiry before the courts ... or other tribunals.....” 7. Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 822; Maule v. Independent School Dist. No. 9, 1985 OK 110, ¶ 12, 714 P.2d 198, 203 n. 30; Great Plains Federal S & L Assn. v. Dabney, 1993 OK 4, ¶ 2, 846 P.2d 1088, 1095-96 (Opala, J., concurring). 8. Johnson v. Tony’s Town Mister Quik, 1996 OK 138, ¶ 5, n. 10, 915 P.2d 355, 357-58; Haynes v. Tulsa Public Schools Transit, 1994 OK 86, ¶ 5, 879 P.2d 128, 131 (Opala, J., concurring).

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Lead attorney Steven E. Holden of Holden & Carr, a 13 attorney firm, has an “AV” rating from Martindale-Hubbell, and has tried over 200 jury trials. Approximately 90% of his civil cases have concluded successfully. The firm’s expanding caseload has led to a Dallas office with noted Texas attorney Kerry McGill, 1991 OU College of Law graduate, who recently served as in-house counsel for a national insurance company. McGill has been lead counsel on countless jury trials and successfully steered appeals through state and federal courts.He has won trials on high exposure cases: product Kerry McGill liability, insurance defense, mass tort, employment and commercial litigation. Holden will divide his time between Texas and Oklahoma as he and McGill expand the firm’s presence in both states.

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HoldenLitigation.com

Vol. 81 — No. 15 — 5/29/2010

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NOTICE OF INVITATION TO SUBMIT OFFERS TO CONTRACT

THE OKLAHOMA INDIGENT DEFENSE SYSTEM BOARD OF DIRECTORS gives notice that it will entertain sealed Offers to Contract ("Offers") to provide non-capital trial level defense representation during Fiscal Year 2011 pursuant to 22 O.S. 2001, §1355.8. The Board invites Offers from attorneys interested in providing such legal services to indigent persons during Fiscal Year 2011 (July 1, 2010 through June 30, 2011) in the following counties: 100% of the Oklahoma Indigent Defense System caseloads in Blaine and Kingfisher Counties, Oklahoma. Offer-to-Contract packets will contain the forms and instructions for submitting Offers for the Board's consideration. Contracts awarded will cover the defense representation in the OIDS non-capital felony, juvenile, misdemeanor, traffic, youthful offender and wildlife cases in the above counties during FY-2011 (July 1, 2010 through June 30, 2011). Offers may be submitted for partial or complete coverage of the open caseload in either one or both of the above counties. Sealed Offers will be accepted at the OIDS main offices Monday through Friday, between 8:00 a.m. and 5:00 p.m. The deadline for submitting sealed Offers is 5:00 PM, WEDNESDAY JUNE 9, 2010. Each Offer must be submitted separately in a sealed envelope or box containing one (1) complete original Offer and two (2) complete copies. The sealed envelope or box must be clearly marked as follows: FY-2011 OFFER TO CONTRACT ________________ COUNTY / COUNTIES

TIME RECEIVED: DATE RECEIVED:

The Offeror shall clearly indicate the county or counties covered by the sealed Offer; however, the Offeror shall leave the areas for noting the time and date received blank. Sealed Offers may be delivered by hand, by mail or by courier. Offers sent via facsimile or in unmarked or unsealed envelopes will be rejected. Sealed Offers may be placed in a protective cover envelope (or box) and, if mailed, addressed to OIDS, FY-2011 OFFER TO CONTRACT, Box 926, Norman, OK 73070-0926. Sealed Offers delivered by hand or courier may likewise be placed in a protective cover envelope (or box) and delivered during the above-stated hours to OIDS, at 1070 Griffin Drive, Norman, OK 73071. Please note that the Griffin Drive address is NOT a mailing address; it is a parcel delivery address only. Protective cover envelopes (or boxes) are recommended for sealed Offers that are mailed to avoid damage to the sealed Offer envelope. ALL OFFERS, INCLUDING THOSE SENT BY MAIL, MUST BE PHYSICALLY RECEIVED BY OIDS NO LATER THAN 5:00 PM, WEDNESDAY, JUNE 9, 2010 TO BE CONSIDERED TIMELY SUBMITTED. Sealed Offers will be opened at the OIDS Norman Offices on Thursday, June 10, 2010, beginning at 9:00 AM, and reviewed by the Executive Director or his designee for conformity with the instructions and statutory qualifications set forth in this notice. Non-conforming Offers will be rejected on Thursday, June 10, 2010, with notification forwarded to the Offeror. Each rejected Offer shall be maintained by OIDS with a copy of the rejection statement. Copies of qualified Offers will be presented for the Board's consideration at its meeting on Friday, June 18, 2010, at the OIDS main offices located at 1070 Griffin Drive, Norman, Oklahoma 73071.

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NOTICE OF INVITATION TO SUBMIT OFFERS TO CONTRACT With each Offer, the attorney must include a résumé and affirm under oath his or her compliance with the following statutory qualifications: presently a member in good standing of the Oklahoma Bar Association; the existence of, or eligibility for, professional liability insurance during the term of the contract; and affirmation of the accuracy of the information provided regarding other factors to be considered by the Board. These factors, as addressed in the provided forms, will include an agreement to maintain or obtain professional liability insurance coverage; level of prior representation experience, including experience in criminal and juvenile delinquency proceedings; location of offices; staff size; number of independent and affiliated attorneys involved in the Offer; professional affiliations; familiarity with substantive and procedural law; willingness to pursue continuing legal education focused on criminal defense representation, including any training required by OIDS or state statute; willingness to place such restrictions on one's law practice outside the contract as are reasonable and necessary to perform the required contract services, and other relevant information provided by attorney in the Offer. The Board may accept or reject any or all Offers submitted, make counter-offers, and/or provide for representation in any manner permitted by the Indigent Defense Act to meet the State's obligation to indigent criminal defendants entitled to the appointment of competent counsel. FY-2011 Offer-to-Contract packets may be requested by facsimile, by mail, or in person, using the form below. Offer-to-Contract packets will include a copy of this Notice, required forms, a checklist, sample contract, and OIDS appointment statistics for FY-2005, FY-2006, FY2007, FY-2008 and FY-2010 together with a 5-year contract history for both counties listed above. The request form below may be mailed to OIDS OFFER-TO-CONTRACT PACKET REQUEST, Box 926, Norman, OK 73070-0926, or hand delivered to OIDS at 1070 Griffin Drive, Norman, OK 73071 or submitted by facsimile to OIDS at (405) 801-2661. ************ REQUEST FOR OIDS FY-2011 OFFER-TO-CONTRACT PACKET Name: _____________________________________

OBA #: _____________________

Street Address:

_________________________

Phone: _____________________

City, State, Zip:

_________________________

Fax:

_____________________

County / Counties of Interest: _____________________ _____________________ _____________________ _____________________ _____________________ Vol. 81 — No. 15 — 5/29/2010

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BOARD OF BAR EXAMINERS

Applicants for July 2010 Oklahoma Bar Exam

he Oklahoma Rules of Professional Conduct impose on each member of the bar the duty to aid in guarding against the admission of candidates unfit or unqualified because of deficiency in either moral character or education. To aid in that duty, the following is a list of applicants for the bar examination to be given July 27-28, 2010. The Board of Bar Examiners requests that members examine this list and bring to the board’s attention in a signed letter any information which might influence the board in considering the moral character and fitness to practice of any applicant for admission. Send correspondence to Cheryl Beatty, Administrative Director, Oklahoma Board of Bar Examiners, PO Box 53036, Oklahoma City, OK 73152. BROKEN ARROW Coy Dale Coffman, III April Danielle Frago Alex Douglas Gardine Dhaliah B. Hoskinson April Michelle Merrill Kara Elizabeth Moore Miriam LeeAnn Sweetin Steven Chris Wyers EDMOND Barrett Glynn Dye Dearra Renee Godinez Jessica Elizabeth Golden Lisa Diane Hack Jeffrey Brian Hubbard Travis James Kirk Tyler Kenneth Larsen Sasha Legere Lori Elizabeth McConnell Kathryn Renee Metheny Andrea Rae Meyer Melissa Lynne Montgomery Blake James Parsons Daniel Bruce Pond Alison Louise Rash Matthew Christian Russell Marie Elaine Schuble Joshua Michael Snavely Amy Leigh Stack David Luther Teasdale John Patrick Wiggins Bria Deawn Winston Omar Danny Zantout NORMAN James Phillip Albert Kara Nikole Bacon 1288

Keith Allen Barrett Hunter Kendall Boling Michael Leon Brooks Laura Ann Calvery Anthony Thomas Childers Andrew Roy Chilson John Robert Chubbuck Joshua Alexander Cline John Steven Coates Barbara Catherine Coke Christina Cabeli Cornish Michael Joseph Davis Mary Megan Dean Jon Michael Domstead James Robert Donovan Joshua Allen Edwards Isaac Ellis Isaac Curtis Finkbeiner Toby Lee Friesen Miguel Armando Garcia Cody Neil Gayer Amanda Elizabeth Gentry Callie Louise Hall Jennifer Lynn Hawk Krystina Elizabeth Hollarn John William Hubbard Beau Robert James Amanda Lynn Janssen Janet Kay Johnson Matthew Loren Johnson Christy D. Keen Gregory Carl Ketner Christina Sue Kimbrell Joanne Lafontant Dooley Thomas Winston Liles Sidney Nichole Lynn Kimberly Kaye McCullough Andrew Loar Messer The Oklahoma Bar Journal

James Austin Mills Gregory Ryan Mulkey Todd Anthony Murray Julie Elizabeth Myers Sofia Rasik Nagda Anne Welton Nagle Jennifer Lorraine Nelson John Matthew Nolan Aaron Charles Parks Terra Rae Parten Judith Louise Peck Aaron Frances Pembleton Andrew Robert Poole Zachary Allen Privott Meredith Andrea Rains John Kenneth Reid Michael Ryan Rennie Max Jackson Rhodes Michael Andrew Risley Raegan Katena Rogers Nedra Georgeann Roye Miranda Rachelle Russell Grant Denver Sheperd Nathan Kirk Shrewsbury Haley Lynn Simmoneau Arlette Srouji Haylie Denae Treas Todd Michael Wagner Kristen Lynell Warren Adam Leigh Wilson Emily Diane Wilson Grant Patrick Wilson OKLAHOMA CITY Danielle Patricia Alexander Everette Chandler Altdoerffer Brittany Faye Baucom Merideth Roberts Bentley Vol. 81 — No. 15 — 5/29/2010

Kenneth Nollen Bethune Brooke Erin Bowling Kristin D’Ann Box Brian Alan Burget John Paul Cannon Daniel James Card Clint Aaron Claypole Michael Wade Cromwell Teofilo Andres Diaz Megan Courtney Dowd Rick Dunkin Jamie Kathleen Dye Jessica Rene Earley Carollann Nichole Gamino Jason Michael Gresham Edward Wesley Grimes Corey Brandon Gum Audra Beth Harris Alana Elizabeth Haynes House Daniel Charles Hays Melissa S. Hedrick Amanda Rene Higgins Robert Sewell Highsaw Katherine Lee Holey Randal Lee Hutson Sara Kristel Jack Natalia Jacobsen Mitchell Blaine Janik Julie Estelle Jansen Lindsey Marie Kanaly Erin Nicole Kee Kirksey Sylvia Ann Lanfair John Clark Lennon Carlos Gustavo Maldonado Michael James Matison Daniel Wayne Melnyk Nathan Michael Milner Fairo Mitchell Lyna Leigh Mitchell Sean Aaron Nelson Chauncey Jordan Pickering Chad Michael Pinkerton Kelly Carson Pruden Shiloh Moriah Renes Mike Chase Ritter Jordan Ky Russell Jacob T. Sherman Candice Lynnette Simmons Ashley Lauren Smart Ryan Houston Smith Valerie Renee Smith Savannah Lynn Stafford Tearsa Paige Storms Marla Reshawn Stripling Geoffrey Thomas Turvey Meredith Ann Walck Collin Jeffrey Walker Amanda Allene Warren Brandon Michael Watson Angela Marie White Vol. 81 — No. 15 — 5/29/2010

Andrew John Charles Whiteside Denielle Nichole Williams Smith Christopher Adam Wills TULSA Steven Michael Albright Dustin James Allen James Thomas Angel Kristine Nicole Aquino Sarah Christine Boyer Anna Jenson Brooks Brian Nathaniel Buie Elizabeth Wells Burden Jared Michael Burden Travis Rex Cantrell Allyson Susanne Cave Alexander Chung Yung Chan Brett Allen Chapman George Rue Chiu Conor Patrick Cleary Michalah Rae Davis Jordan Barrett Ellis Kendra Sue Emerson Lori Christine Fisher Heather Lamar Forsyth Brandi Lynn Gragg Scott Charles Grier Brett Paul Gwartney Holly Marie Hammons Christian Diane Helm Trevor R. Henson Jess Wesley Herd, Jr Sarah Renee Hummel Jessica Victoria Hunt Bradley Lloyd Johnson Palmer Christian Johnson Alex Stuart Kaiser Suzanne Elise Kern Sabah Salman Khalaf Peter Joseph Knowles Matthew John Lese Michael Lipson Leshoure, Jr Lauren Anne Lindsey Katrina Kay Lucas Michael Keith Manning Jared Wayne Mashaney Kelsey Marie May Andrew Lee McAlester Sara Kay Miller Angela Nicole Monroe Gregory Watson Morgan Scott Van Brunt Morgan Elise Schuller Neely Eric John Nicar Brittani Nicole Nichols Ivan Randall Orndorff, Jr George Caleb Overstreet Amy Elizabeth Pahlka Sellars Charles Madison Parrish III The Oklahoma Bar Journal

Odin David Perez Suzanne Reed Phillips David Andrew Ragsdale Rebbecca Lyn Redelman Natalie Krysten Reid Joshua Davis Ritchey Nikki Cyter Sack Kirk Reuben Schauer Timothy William Schneidau Elizabeth Lee Shelton John Daniel Sigman Stephanie Anne Singer Timothy Jared Singleton Nathaniel Keith Soderstrom Eric Lloyd Tabor David Matthew Taft Melissa Elizabeth Webb Lauren Elizabeth Weber Sarah Elizabeth Weber Trenton Michael White OTHER OKLAHOMA CITIES AND TOWNS Jasper Vaughndale Abbott, Okmulgee Joshua Kyle Adams, Moore Virgil Ray Barksdale, Seminole Heather Lynn Basler, El Reno Lisa Marie Bazzano, Enid Jeremy Michael Brannan, Claremore Rebecca Elaine Brink, Moore Molly Jean Brown, Claremore Hope L. Bryant, Enid Clark Patrick Bushyhead, Sand Springs John Edward Cadenhead, Seminole Madison Blaine Carey, Muskogee Amanda Lynn Clark, Newcastle Miranda Barbara Combs, Harrah Denis Sylvain Cote, Alva Steven Warren Creager, Yukon Ross Alan Crutchfield, Claremore Laura Beth DeYoung, Owasso Lindsay Megan Dowell, Claremore Kyle Neil Eastwood, Mountain View Renee Sue Eberhardt, Okarche Jared Ray Ellis, Marlow Jill Renee Fidelie, Yukon Alexander Keith Forbes, Midwest City Alexandra Josee Fugairon, Yukon 1289

Mary Grace Gannaway, Mannford Angel Nikolaev Gerdzhikov, Moore Lenora Michelle Gulley, Muskogee Kevin Sean Haines, Cherokee Misti Dawn Halverson, Wayne Diane Marie Hanmer, Bartlesville Daniel Ryan Hensch, Perkins Nicole Dawn Herron, Bartlesville Megan Rae Hickman, Newcastle Megan Lee Ann Holden, Blackwell Blair Steven Hollaway, Enid William Justin Holliday, Yukon Michael Bernard Hunter, Muskogee Deborah Hoover Hupfer, Shawnee Allen Lemarr Hutson, Duncan Eliza Beth Johnson, Mustang Nicholas Adam Johnson, Midwest City Thomas Ryan Johnson, Sherman Kendal Autumn Kelly, Bristow Pamela Jean Kennedy, Yukon Jacob Todd Keyes, Boswell Jamie Nicole Kirk, Sapulpa Earl D. Lawson, Skiatook Nicholas Scott Lee, Yukon Robert Douglas Lewis, Jenks Harrison Cole Lujan, Yukon Jason Edward Marshall, Chickasha Jobby Chathanattu Mathew, Moore Erin Ann Maxwell, Shawnee Imelda Maynard, Moore Rachel Lynn McAlvain, Tahlequah Jack Miles McFadden, Fairview Katie Mariah McIntosh, Piedmont Amanda Marie McNally, Guthrie Leo Joseph Mendus II, Warr Acres Andrea Marie Merten, Moore Robert Mitchener III, Owasso Katherine Rose Morelli, Sand Springs Brandi Lynne Morgan, Bethany Kimberly Marie Farabough Mouledoux, Ardmore

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Amanda Renee Mullins, Wagoner Amanda Brooke Murphy, Yukon Diedre Lee Neal, Moore Paul Michael Northcutt, McAlester Brandi Nicole Nowakowski, Shawnee Loretta Anne Padilla, Moore Christine Carol Pappas, Ada Janel Elizabeth Perry, Welling Vanessa Ann Purdom, Elk City Bartlett Henry Ramsey, Yukon Deborah Ann Reed, Oaks Timothy Jacob Remy, Bixby Scott Andrew Reygers, Moore Elizabeth Jane Sark, Moore James Gregory Brandon Scott, Tuttle Matthew Thomas Sheets, Enid Jayme Kathryn Smith, Chandler John Schuyler Smith, Owasso Sandra Jean Steffen, El Reno Dallas Lynn Dale Strimple, Collinsville Thomas Arlin Swafford II, Stillwater Cullen Dean Sweeney, Lawton Aaron Jason Taber, Ardmore Joshua Ray Taylor, Yukon Mark Daniel Uptegrove, Moore Aimee Melissa Vardeman, Lawton Matthew David Von Tungeln, Calumet Anthony Neal Walters, Tahlequah Jennifer Marie Warren, Nichols Hills Charlie Michele Wolfe, Moore Jeffrey Julian Wolfenbarger, Elgin Randall John Yates, Locust Grove OUT OF STATE Anthony Seth Adams, San Diego, CA Seth Brandon Baer, Jefferson City, MO Jonathan Zachary Birdsong, Springfield, MO Donald Christian Bowers, Dallas, TX Melody Kristen Bradley, Williamsburg, VA Meagen Elaine Williams Burrows, Seattle, WA

The Oklahoma Bar Journal

Raymond Jason Campbell, Missoula, MT Richard Christopher Campbell, Fulton, MO John Bruce Chandler, East Lyme, CT Paul Michael Clark, New Haven, CT Joshua Brian Deal, Naples, FL Cale Aaron Drumright, Ottawa, KS Seth Andrew Fellenstein, Boulder, CO Kristin Leigh Foster, Lee’s Summit, MO Grant Chase Garrard, Lincolnville, KS Nicholas Eugene Grant, Little Rock, AR Laura Michelle Grimes, Virginia Beach, VA Anna Christine Hanson, Fayetteville, AR Robert Lee Harmon, Colleyville, TX Kenneth Lee Kincaid, Fayetteville, AR Margaret Josephine Laue, Fayetteville, AR Lauren Lembo, Colleyville, TX Amy Elizabeth Gramolini Mangum, Fort Drum, NY Sean Lawrence McLaughlin, Lenexa, KS Jillian Rae Mershon, South Royalton, VT Christopher David Morris, Naples, FL John Revell Parrish, Augusta, GA Kristen Nicole Pence, Dallas, TX Kathryn Nicole Perryman, Marshfield, MO Molly Elizabeth Raynor, Dallas, TX Andrew William Roberts, Hillsboro, MO Margaret Elizabeth Robertson, Topeka, KS Leslie Ann Rountree, Topeka, KS Sheila Dawn Sayne, Seminole, FL Ryan Todd Scharnell, Lewisville, TX Rebecca Coman Scopp, New Orleans, LA Noah Patric Sebourn, Lexington, KY

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Danny Ray Sexton, Fayetteville, AR Christopher Michael Staine, Houston, TX Samara Lyn Stone, Roseville, MN Elizabeth Anne Street, Maryland Heights, MO

Craig Douglas Sundstrom, Mentor, OH John Thomas Synowicki, Nashville, TN Robert Andrew Versace, Mabank, TX James Stuart Wallingford, Columbus, OH

Leah Michelle Ward, Fayetteville, AR Matthew Brady Welde, Van Nuys, CA Chanelle Monique Whittaker, Van Nuys, CA

Biscone & Biscone Attorneys

We will gladly accept your referrals for oklahoma workers’ compensation and social security disability cases. Association/ referral fees paid

1-800-426-4563 405-232-6490 105 N. Hudson, Suite 100 Hightower Building Oklahoma City, OK 73102 Vol. 81 — No. 15 — 5/29/2010

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Court of Criminal Appeals Opinions 2010 OK CR 8 BILLY GENE MARSHALL, Appellant v. STATE OF OKLAHOMA, Appellee. Case No. F-2008-1170. May 13, 2010 OPINION LUMPKIN, JUDGE: ¶1 Appellant Billy Gene Marshall was tried by jury and convicted of First Degree Murder (21 O.S.Supp. 2004, § 701.7) and First Degree Robbery (21 O.S. 2001, § 797), After Former Conviction of Two or More Felonies, Case No. CF-2006-2922, in the District Court of Tulsa County. The jury recommended as punishment life imprisonment without the possibility of parole for the murder conviction and life imprisonment for the robbery. The trial court sentenced accordingly, ordering the sentences to run consecutively. It is from this judgment and sentence that Appellant appeals. ¶2 Appellant was convicted of the brutal murder and robbery of seventy-one year old Alonzo Tibbs, Jr. Mr. Tibbs, also referred to as the decedent, was a retired employee of American Airlines and worked part time as a salesman for Prepaid Legal. He lived with his girlfriend of eleven years, Jennifer Jones Garrett, on North Hartford Avenue in Tulsa, Oklahoma. To those he knew, the decedent was more than willing to loan money in times of need. ¶3 On June 14, 2006, Ms. Garrett left for work at approximately 7:20 a.m. Mr. Tibbs was up and planned to wash and wax his Cadillac that morning. He was to meet Ms. Garrett later that day at her place of work and exchange vehicles. When he had not shown up by one o’clock, Ms. Garrett began phoning Mr. Tibbs. She called him several times on his cell phone and on the house phone. She never received an answer. Ms. Garrett left work after 5:00 p.m., and attempted to locate Mr. Tibbs by calling his cell phone and his friends. She arrived home at approximately 6:00 p.m., to find the front door of her home ajar. She thought it unusual as the front door was usually either wide open or completely shut. Upon entering the house, she called out for Mr. Tibbs. Receiving no response, she walked toward the bedroom. She saw the decedent’s legs on the bedroom floor and 1292

called out his name. Again receiving no response, she called the police. ¶4 The police arrived to find Mr. Tibbs had been beaten to death. There was a large amount of blood in the bedroom with blood spatter and blood transfer all over the bedroom. The screen to the bedroom window had been pushed out and was lying on the grass outside of the house. The window itself was open. ¶5 Mr. Tibbs suffered injuries from twelve blows to the head from a blunt instrument. His face had been beaten to a bloody pulp. The right side of his forehead was caved in due to extensive skull fractures caused by the blows. The state medical examiner determined the cause of death was blunt head trauma and that his injuries were consistent with being attacked with a hammer. Mr. Tibbs also suffered small scrapes, tears or lacerations on his fingers, suggesting the possibility of defensive injuries. Mr. Tibbs’ wallet, which he always kept in his pants pocket, was missing. ¶6 Mr. Tibbs was last seen alive on June 14 at approximately 11:30 a.m. when his neighbor Glen Humphrey saw him washing his Cadillac. The two men spoke briefly and Mr. Tibbs said he was not feeling well. Mr. Humphrey thought it was probably due to the heat and suggested Mr. Tibbs go inside and lay down. The men concluded their conversation and Mr. Humphrey left with Mr. Tibbs still outside. ¶7 Between 11:30 a.m. and noon that day, Nathaniel Jacobs, Sr., a next door neighbor to Mr. Tibbs, noticed the trunk to Mr. Tibbs’ Cadillac was open but Mr. Tibbs was not around the car. Mr. Jacobs had never seen that happen before. He thought that “something was wrong somewhere” as his dog had been barking in the direction of Tibbs’ house around noon that day. At approximately 3:30 p.m., Mr. Jacobs returned from an errand to find the car trunk was still open. Mr. Jacobs knocked on the front door of Tibbs’ home but received no answer. Looking inside the large picture window, he saw flies inside the house. Finding all of this unusual, Mr. Jacobs told his wife who called Mr. Tibb’s home phone. She received only a voice recording. Mr. Jacobs left for another errand but soon returned unable to get the vision of the flies out of his mind. When he

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returned to Mr. Tibbs’ house and looked in the window a second time, the flies had increased. Again, no one came to the door when Mr. Jacobs knocked. He closed the trunk to Mr. Tibbs’ car as he left. ¶8 On June 14, 2006, an arrest warrant was issued for Appellant for the May 30 robbery of the J & J Bargain Depot in Tulsa. The store clerk, Ms. Washington, had been attacked by a black man armed with two hammers. Detectives received an anonymous tip that Appellant was involved in the robbery. As a result, a photographic lineup was prepared and Ms. Washington identified Appellant as the man who attacked her and robbed the store. ¶9 Based upon similarities between the J & J robbery and the robbery/murder of Mr. Tibbs, Appellant was arrested for Mr. Tibbs’ murder on June 15. He was with his girlfriend Sheila Jones. Ms. Jones later told police that she and Appellant had lived across the street from Mr. Tibbs from September 2005 until January 2006. She said Appellant and Mr. Tibbs were acquaintances and that Appellant had borrowed money from Mr. Tibbs. Ms. Jones and Appellant moved twice before ending up at 4204 N. Frankfort where they lived at the time of Mr. Tibbs’ murder. Ms. Jones was employed, but Appellant was not. She gave Appellant money to repay the loan from Mr. Tibbs but she did not know if he ever actually paid Mr. Tibbs. She also gave Appellant money to pay the rent but he never paid the landlord and she did not know what happened to the money. ¶10 On the day of the murder, Appellant, dressed in a white t-shirt and jeans, left about 9:00 a.m. saying he was going “to make a hustle”. Ms. Jones understood this to mean Appellant was selling tires to make money. Appellant returned to his house between 1:00 and 1:30 that afternoon to take Ms. Jones to work. However, he had changed clothes and was wearing a striped shirt and shorts he said he got from his brother. ¶11 That night, Ms. Jones saw a story on the news about a body found at a house on 46th Street and North Hartford Avenue. When she told Appellant, he identified the location as Mr. Tibbs’ home and said the last time he saw Tibbs’, he was “talking to a hooker”. ¶12 The next day, June 15, Ms. Jones drove by Mr. Tibbs’ home on her way to work. She noticed a lot of cars at the house and wondered if they were having a “family reunion or a funeral or something.” Appellant who was Vol. 81 — No. 15 — 5/29/2010

with her in the car, told her to “go on”, it was only the police and that was where they found “the dead man.” Ms. Jones drove on to her sister’s home nearby and that was where Appellant was apprehended. ¶13 After police searched her house on North Frankfort, Ms. Jones conducted her own search. She found the striped shirt, shorts, and shoes Appellant wore the afternoon of the murder. Ms. Jones informed police, who returned with a search warrant and seized the items. Ms. Jones also gave the police information about a house at 1524 E. 51st Place North where she and Appellant had lived until mid May 2006, between the time they lived on Hartford Avenue and North Frankfort. They had been evicted for failure to pay rent and the eviction notice on the door was in Appellant’s name. Ms. Jones had moved everything out of the house except for a twin bed, some clothing and trash. When the police arrived at the house on June 15, they found a full trash can next to the refrigerator. In the top of the trash can was some rotten food and several dirty baby diapers. At the bottom of the trash can was a flannel sheet wrapped around several bloody items of clothing. In a bedroom closet police found a tool kit containing a small hammer. ¶14 Ms. Jones later identified the cloth the items were wrapped in as her grandson’s receiving blanket. Inside the blanket were found bloody socks, which Ms. Jones identified as the type of tube sock worn by Appellant. A lottery receipt and Prepaid Legal brochure with blood on them were also found inside the blanket. Additionally, a black t-shirt and bloody pair of jeans containing a wallet in the front pocket were found. The wallet contained Mr. Tibbs’ identification but no money. Ms. Jones identified the black t-shirt and jeans as items she had purchased for Appellant. ¶15 The socks and jeans subsequently tested positive for blood and DNA testing showed matches for Appellant and Mr. Tibbs. Concerning the socks, a comparison with Mr. Tibbs’ known DNA could not exclude him as a donor and the probability of selecting an AfricanAmerican at random who could have contributed the DNA was 1 in 950 trillion. Appellant could not be excluded as a DNA donor but a statistical value could not be reported. ¶16 Blood on Appellant’s jeans was tested and DNA from both Mr. Tibbs and Appellant was found. Mr. Tibbs could not be excluded as a major donor of the DNA with the probability of selecting at random an African-American

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who could have contributed the information as 1 in 950 trillion. Appellant could not be excluded as a minor contributor of the DNA in the sample with the probability of selecting at random an African-American who could have contributed the sample as 1 in 14 million. ¶17 When interviewed by police, Appellant admitted going by the decedent’s home the morning of the murder and seeing Mr. Tibbs washing his Cadillac. Appellant claimed he spent the morning of the murder helping his half-brother, William Mayberry, cleaning gutters at a daycare on 51st Street. Appellant said he saw three people in the area of Mr. Tibbs’ home that morning. He claimed they were known as “Showboat”, “Moses”, and “a hooker”. ¶18 The police were unable to locate any of the people named by Appellant. William Mayberry testified that he saw Appellant “some time prior to the time of the murder” and they visited for about 20 minutes. However, he could not remember if the day was June 14 or another day. He did remember though that Appellant did not help him clean out gutters on June 14. Appellant’s niece, Sasha Mayberry, testified that she saw Appellant the day after the murder and that “he was acting weird”. She asked him if he had anything to do with the murder the day before, and he walked away without responding to her question. ¶19 Appellant chose not to testify at trial. Instead he presented a stipulation which read, “Corporal Stout would testify that on June 16, 2006, he talked to Debra Mayberry, and she said Billy Marshall came to her house on Wednesday June 14, 2006.” Additional facts will be set forth as necessary. ¶20 In his first proposition of error, Appellant contends he was denied a fair trial when Mr. Jonathan Wilson of the Tulsa Police Department Forensic Laboratory was allowed to testify as a substitute for Dr. Valerie Fuller regarding the DNA testing she had conducted. Appellant asserts Mr. Wilson’s testimony violated Oklahoma statutory law and the Confrontation Clause of the United States Constitution. ¶21 Dr. Valerie Fuller conducted the forensic testing of the bloody clothing in this case, but by the time of trial had gone to Iraq to set up a lab facility and teach DNA testing procedures to Baghdad police officers. Prior to trial, defense counsel requested a continuance specifically noting Dr. Fuller’s absence and arguing her absence denied Appellant his right of cross1294

examination. The continuance was denied and Mr. Wilson was permitted to testify in Dr. Fuller’s place as an expert witness testifying on the basis of the work of a colleague. ¶22 The trial court found that Mr. Wilson was fully qualified as an expert in DNA analysis. Mr. Wilson had worked with Dr. Fuller on prior occasions and had previously reviewed her work. He testified that in this case he conducted a technical review of Dr. Fuller’s report, reviewing all case files, notes and worksheets to make sure the proper procedures were followed, the data which was generated was reflective of the work conducted, and that the statements and conclusions in the report could be verified by the results obtained. ¶23 Mr. Wilson testified he found one difference in Dr. Fuller’s statistical analysis regarding the minor contributor of the DNA found on jeans belonging to Appellant. He found one transposed number and corrected it by issuing a corrected report prior to trial. Dr. Fuller’s report and Mr. Wilson’s corrected report were both admitted into evidence. ¶24 A trial court’s ruling admitting or excluding evidence is reviewed on appeal for an abuse of discretion. Williams v. State, 2001 OK CR 9, ¶ 94, 22 P.3d 702, 724. An abuse of discretion has been defined as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Love v. State, 1998 OK CR 32, ¶ 2, 960 P.2d 368, 369. ¶25 In McCarty v. State, 1998 OK CR 61, ¶ 88, 977 P.2d 1116, 1137-1138, this Court upheld the admission of testimony from the Chief Medical Examiner concerning an autopsy which he did not personally perform.1 This Court found the Chief Medical Examiner was qualified to testify as to the matters shown in the autopsy and that any questions regarding his testimony went to the weight and credibility of the testimony, not its admissibility. This Court relied on 63 O.S.1991, § 935 et.seq., setting forth the duties of the Chief Medical Examiner which included appearing in court to testify, and on 12 O. S.1991, § 2703.2 This Court held that pursuant to § 2703, an autopsy report constitutes “facts or data … of a type reasonably relied upon” by the Chief Medical Examiner as an expert in forming opinions or inferences upon a subject and was therefore admissible evidence. Id., 1998 OK CR 61, ¶ 89, 977 P.2d at 1137. ¶26 Since McCarty was decided, the United States Supreme Court issued Melendez-Diaz v.

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Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In that case, the Supreme Court found that reports or “certificates of analysis” prepared by analysts at the state crime laboratory showing the results of the forensic analysis on a seized controlled substance and prepared for use in a criminal prosecution were “testimonial” evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Supreme Court further held that “[a]bsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the analysts at trial.” Id., 129 S.Ct. at 2532 citing Crawford, 541 U.S. at 54, 124 S.Ct. 1354 (emphasis in original). The Supreme Court reiterated the non-exclusive class of statements which are testimonial in nature which included affidavits that declarants would reasonably expect to be used prosecutorially. Id., 129 S.Ct. at 2531-2532. Because there was no showing that the analysts were unavailable to testify at trial and that Melendez-Diaz had a prior opportunity to crossexamine them, the Supreme Court held that the admission of the certificates alone violated the defendant’s rights under the Confrontation Clause. ¶27 Under the circumstances of this case, there is little doubt that Dr. Fuller’s report was prepared for use in a criminal trial. Therefore, it falls under the category of “testimonial” evidence subject to the demands of the Confrontation Clause. See Melendez-Diaz, 129 S.Ct. at 2531-2532. ¶28 Our analysis does not end here. Dr. Fuller did not testify at the preliminary hearing in this case. The DNA report she prepared was stipulated to by the defense for purposes of preliminary hearing only. Therefore, Appellant did not have an opportunity prior to trial to cross-examine Dr. Fuller or her findings in the DNA report. ¶29 At trial, Mr. Wilson testified solely to the findings of Dr. Fuller’s DNA report. He was repeatedly asked whether Dr. Fuller had a finding regarding a specific item of evidence. Mr. Wilson answered those questions by reading from Dr. Fuller’s report. Mr. Wilson did not offer his own opinions concerning the DNA findings. Under these circumstances, Appellant’s rights under the Confrontation Clause were violated as he was denied the opportunity to confront and cross-examine Dr. Fuller in Vol. 81 — No. 15 — 5/29/2010

order to test her competence and the accuracy of her findings.3 See Wood v. State, 299 S.W.3d 200, 213 (Tex.App.-Austin,2009)(finding autopsy reports were “testimonial” evidence and testimony by expert as to autopsy findings, who was not present at the autopsy, denied the defendant his constitutional right to confront the expert who conducted the autopsy); Commonwealth v. Avila, 912 N.E.2d 1014, 1027-1028 (Mass. 2009) (finding error to allow testimony about findings in an autopsy by expert who did not conduct autopsy because the autopsy findings were inadmissible hearsay and they violated the Confrontation Clause).4 ¶30 While Rules of Evidence cannot “trump” the Sixth Amendment, Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, Melendez-Diaz does not do away with 12 O.S.2001, § 2703. “’[A]s a matter of expert opinion testimony, a physician’s reliance on reports prepared by other medical professionals is plainly justified in light of the custom and practice of the medical profession. Doctors routinely rely on observations reported by other doctors ... and it is unrealistic to expect a physician, as a condition precedent to offering opinion testimony … to have performed every test, procedure, and examination himself’”). Avila, 912 N.E.2d at 1028-1029. However, § 2703 must be read in conjunction with the Confrontation Clause. This requires the expert witness’s testimony must be confined to his or her own opinions and the expert must be available for cross-examination. ¶31 In accordance with Melendez-Diaz, we find the trial court abused its discretion in allowing Mr. Wilson to testify to the findings of Dr. Fuller contained in Dr. Fuller’s DNA report. However, violations of the Confrontation Clause are subject to harmless error analysis. Livingston v. State, 1995 OK CR 68, ¶ 17, 907 P.2d 1088, 1093; Bartell v. State, 1994 OK CR 59, 881 P.2d 92, 99. Therefore, we must determine, in context of the other evidence presented, whether the error in admitting Mr. Wilson’s testimony regarding the DNA evidence was harmless beyond a reasonable doubt. Id. ¶32 In this case that means looking at the evidence without consideration of the DNA evidence. This other evidence showed that Appellant knew the decedent and until six months before the murder, had lived across the street from him. Appellant was unemployed and was frequently short of money. Appellant had borrowed money from the decedent in the past. Ms. Jones, Appellant’s girlfriend, gave him money to repay the decedent, but she did

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not know if he ever did. Ms. Jones also gave Appellant money to pay their rent, but Appellant failed to do so. ¶33 The morning of the murder, Appellant told Ms. Jones he was going to make some money, presumably by selling tires. When he returned home that afternoon, he was wearing clothes different from what he had on that morning. He told Jones he got the clothes from his brother with whom he had cleaned out gutters that morning. However, Appellant’s brother had not seen Appellant that day and had not given him any clothes. The socks and jeans Appellant wore that morning were found bloodied and hidden in the bottom of a trashcan in a house where Appellant lived after he moved from the decedent’s neighborhood. The decedent’s wallet was found in Appellant’s jeans pocket. No money was found in the wallet. Police were subsequently unable to locate any of the people named by Appellant as seen around the decedent’s home near the time of the murder. Further, the decedent’s injuries were consistent with being attacked with a hammer. Approximately two weeks prior to the murder, Appellant robbed a store in Tulsa and attacked the clerk with a hammer. ¶34 This evidence, independent of the DNA evidence, sufficiently supports the jury’s verdict of first degree murder and first degree robbery. While DNA evidence can be very persuasive evidence for the jury to consider, on appeal we can review the properly admitted evidence to determine whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. See Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559 (standard of review for sufficiency of evidence). Here, we are satisfied beyond a reasonable doubt that the improperly admitted DNA evidence did not contribute to Appellant’s conviction or punishment. This is especially true in that defense counsel was able to thoroughly cross-examine the DNA expert and point out weaknesses in the evidence. The expert responded to each question asked and was thoroughly familiar with the evidence and method of testing. It is hard to imagine additional questions that would have been asked if Dr. Fuller had been there in person. ¶35 Appellant raises additional challenges to the DNA evidence. In Proposition One, he asserts the State failed to comply with its obligation under 22 O.S.2001, § 751.1(C)(2) to present as a witness any person, specifically Dr. Fuller, in the chain of custody. In Proposition 1296

Two, Appellant asserts that admission of testimony by Mr. Wilson concerning the DNA found on one of the socks retrieved from the trash can for which a statistical analysis was not shown was reversible error. In Proposition Four, he contends the trial court erred in denying his motion for a continuance based in part on Dr. Fuller’s unavailability to testify at trial. In light of our finding that a Confrontation Clause error occurred in the admission of the DNA evidence but that such error was harmless beyond a reasonable doubt, it is not necessary to further address these separate allegations of error. ¶36 In Proposition Three, Appellant asserts the State’s presentation of evidence of the J & J Bargain Depot robbery was improper other crimes evidence which warrants reversal of his conviction for a new trial. ¶37 The basic law is well established — when one is put on trial, one is to be convicted — if at all — by evidence which shows one guilty of the offense charged; and proof that one is guilty of other offenses not connected with that for which one is on trial must be excluded. Lott v. State, 2004 OK CR 27, ¶¶ 40 - 41, 98 P.3d 318, 334-335, citing Burks v. State, 1979 OK CR 10, ¶ 2, 594 P.2d 771, 772, overruled in part on other grounds, Jones v. State, 1989 OK CR 7, 772 P.2d 922. ¶38 However, evidence of other crimes is admissible where it tends to establish absence of mistake or accident, common scheme or plan, motive, opportunity, intent, preparation, knowledge and identity. Id. To be admissible, evidence of other crimes must be probative of a disputed issue of the crime charged, there must be a visible connection between the crimes, evidence of the other crime(s) must be necessary to support the State’s burden of proof, proof of the other crime(s) must be clear and convincing, the probative value of the evidence must outweigh the prejudice to the accused and the trial court must issue contemporaneous and final limiting instructions. Id. When other crimes evidence is so prejudicial it denies a defendant his right to be tried only for the offense charged, or where its minimal relevancy suggests the possibility the evidence is being offered to show a defendant is acting in conformity with his true character, the evidence should be suppressed. Id. Where, as here, the claim was properly preserved, the State must show on appeal that admission of this evidence did not result in a miscarriage of justice or constitute a substantial violation of a constitutional or statutory right. Id.

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¶39 The State timely filed a Burks notice in this case detailing the evidence to which Appellant now objects and requesting its admission for the purpose of proving identity or common scheme or plan, or any other proper purpose.

the limiting instruction was adequately met in instructing the jury that the other crime was not to be considered as proof of guilt or innocence of the charged offense. This proposition of error is denied.5

¶40 Here, the other crimes evidence involved the use of a distinctive weapon in a distinctive manner. In the J & J robbery, Appellant used a hammer to strike the clerk on the back of the head in order to incapacitate her. An investigating officer testified that in his 35 years as a police officer, he had never seen a hammer used as a weapon in a robbery. Mr. Tibbs was killed by multiple blows to the head with a blunt instrument. While the medical examiner could not definitely say the murder weapon was a hammer, the injuries were consistent with blows from a hammer. Mr. Tibbs’ wallet was not found in his pants pocket where it was usually kept but in a trash can in a house where Appellant previously lived. The J & J robbery was committed on May 30, 2006, less than five miles from where Mr. Tibbs lived and was murdered on June 14, 2006. Ms. Washington, the J & J store clerk, identified Appellant from a photographic line-up and at the trial in that case. The admission of this evidence is consistent with the analysis and admission of like evidence this Court set out in Pickens v. State, 1988 OK CR 35, ¶ 3, 751 P.2d 742, 743, and Williams v. State, 2008 OK CR 19, ¶¶ 36-39, 188 P.3d 208, 218-219.

¶43 In his fourth proposition, Appellant contends the trial court erred in denying his motion for a continuance. Filed on October 31, 2008, with trial set to begin on November 3, Appellant requested a continuance based in part on the trial judge’s reversal of an earlier ruling on the State’s offer of other crimes evidence and decision to admit the evidence. Appellant argues that since the court made its original ruling excluding the evidence on May 5, 2008, counsel had been “lulled into thinking that she would only have to defend her client against the crime that he was actually charged with committing.”

¶41 Evidence of the J & J robbery was properly admitted as probative of the identity of Mr. Tibbs’ assailant as it tended to prove that it was Appellant who beat Mr. Tibbs’ to death with a hammer. See 12 O.S.2001, § 2403. This probative value was not substantially outweighed by the danger of unfair prejudice in light of the instruction given to the jury limiting their consideration of the evidence. The court actually issued two limiting instructions — a verbal one before Ms. Washington’s testimony and a written one at the close of evidence. This instruction has been found to effectively limit the jury’s use of other crimes evidence. See Lafayette v. State, 1985 OK CR 5, ¶ 15, 694 P.2d 530, 532. ¶42 We note that in this case, the written instruction did not specifically list the “identity” exception, setting out that the evidence was received on the issue of “the defendant’s alleged motive, opportunity, intent, preparation, common scheme or plan.” Counsel did not object to this instruction and we find it does not constitute plain error. The purpose of Vol. 81 — No. 15 — 5/29/2010

¶44 “[T]he decision whether to grant or deny a motion for continuance rests within the sound discretion of the trial court and will not be disturbed absent abuse of such discretion.” Ochoa v. State, 1998 OK CR 41, ¶ 28, 963 P.2d 583, 595. “When considering the overruling of a motion for a continuance, we will examine the entire record to ascertain whether or not the appellant suffered any prejudice by the denial.” Id. ¶45 Appellant has not claimed surprise and the record would not support a finding of surprise as the other crimes evidence admitted at trial was the same evidence offered by the State in its Burks notice filed in April 2008. Appellant’s argument seems to be that additional time was needed to refute the other crimes evidence. In the motion for a continuance, counsel stated that she needed additional time to subpoena necessary witnesses. However, the “necessary witnesses” have never been identified. Appellant has not set out anything that trial counsel could have done differently in regards to the other crimes evidence if a continuance had been granted. At trial, defense counsel announced ready for trial with the understanding from the court that she was not waiving her motion for a continuance. However, there is no indication from the record what counsel would have done differently with more time to prepare. ¶46 Further, this case had been pending for two years, while Appellant was in jail, when defense counsel requested the continuance. The case had already been continued twice, once by the court and once by the prosecutor. After a thorough review of the record, we find

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nothing to indicate Appellant suffered any prejudice by the court’s refusal to grant the continuance. The court did not abuse its discretion in denying the continuance, and this proposition is denied. ¶47 In his fifth proposition of error, Appellant argues that the affidavit for the search warrant of 1524 E. 51st Place lacked probable cause, in part because the affidavit failed to show the unnamed source was reliable. While Appellant filed a motion to suppress the results of the search, he did not object to the evidence when it was admitted at trial. Therefore, he has waived all but plain error review. Seabolt v. State, 2006 OK CR 50, ¶ 4, 152 P.3d 235, 237. ¶48 Before addressing Appellant’s claim, we must first determine whether he has standing to contest the search. To establish standing, a defendant has the burden of proving that he had a legitimate expectation of privacy in the area searched. Anderson v. State, 1999 OK CR 44, ¶ 18, 992 P.2d 407, 417. Only where a defendant has a clear possessory interest in the property searched, does he have standing to object to the constitutionality of that search. Id. Appellant and Ms. Jones were evicted from the house on E. 51st Place in May 2006, approximately one month before Mr. Tibbs’ murder. Everything had been moved out except for a twin bed, some clothing and trash. The day the search warrant was executed, the grass in the yard was high and the front door was ajar. Based upon this information, Appellant did not have an expectation of privacy in the house he abandoned. ¶49 Even if Appellant had standing, the affidavit was more than sufficient to support the search. In evaluating the sufficiency of an affidavit for a search warrant, this Court looks to the totality of the circumstances. Langham v. State, 1990 OK CR 9, ¶ 6, 787 P.2d 1279, 1281. Under the totality of the circumstances approach, the task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. In order for there to be a valid finding of probable cause “enough underlying facts and circumstances must be set forth in the affidavit to enable the magistrate to independently judge the affiant’s conclusion that [evidence of the crime] is located where the affiant says it is.” 1298

Peninger v. State, 1991 OK CR 60, ¶ 6, 811 P.2d 609, 611, quoting Asher v. State, 1976 OK CR 59, ¶ 19, 546 P.2d 1343, 1347. “The duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Langham, 1990 OK CR 9, ¶ 6, 787 P.2d at 1281. A magistrate’s finding of probable cause is to be given great deference. Gregg v. State, 1992 OK CR 82, ¶ 14, 844 P.2d 867, 874. ¶50 The affidavit in this case was primarily based on information police officers gathered through their own investigation including interviews with the medical examiner, Ms. Jones, Ms. Washington, and the Tulsa Housing Authority. The affidavit stated in part that police officers learned through their own investigation that the deceased died as a result of blunt force trauma to the head, that the injuries appeared to have been caused by a hammer, the deceased’s wallet could not be located at the scene of the murder, and it appeared that someone had rummaged through the deceased’s residence looking for items to steal with robbery as the apparent motive. The affidavit further states that on June 15, 2006, officers observed a green Toyota Camry bearing a Texas license plate near the scene of the murder. Officers stopped the car and found Appellant and Ms. Jones inside. Officers arrested Appellant on an outstanding warrant for the robbery of the J & J Bargain Depot on May 30, 2006. In the J & J robbery, Appellant used a hammer to beat the employee, Ms. Washington, while he robbed the business. During subsequent interviews with Ms. Jones the police learned that Appellant left his home the morning of June 14, 2006, to “make some money”, that he returned a few hours later dressed in different clothes than when he left the house, statements made by Appellant to Ms. Jones placed him near the murder scene on the day of the murder, Appellant and Ms. Jones had lived across the street from the deceased at one time, Appellant had borrowed money from the deceased in the past, and Appellant owned a hammer which he routinely kept in his car. While searching her home, Ms. Jones found a pair of blood stained shoes and a pair of bloodstained pants which belonged to Appellant. However, no hammer was found at the residence. Additionally Ms. Jones informed the police that she and Appellant had lived at the house only 3 months, having previously lived at 1524 E. 51st Place, that they were evicted due to their failure to pay rent, that Appellant still had a key to the house on 51st street and rou-

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tinely went there, although she did not know what he did while he was there. Upon receiving information about the house on 51st Street, officers went to the house and found it appeared abandoned with the grass extremely overgrown, the front door unlocked and slightly ajar and trash and papers the only items visible from the windows. The affidavit also states that the Tulsa Housing Authority confirmed that Appellant and Ms. Jones used to live in the house on 51st street and that Appellant had been served with eviction papers. ¶51 In conclusion, the affiant, Detective Felton, stated that he had been involved in homicide investigations for ov er nine (9) years and that during this time he had learned that persons committing violent crimes will often times discard evidence at abandoned residences connected with the person that committed the violent act. ¶52 Further, in setting out information concerning the J & J robbery, the affidavit states that a furniture store in Tulsa was robbed on May 22, 2006, and the black male suspect used “an instrument to cause blunt force trauma” to the store employee who suffered critical injuries as a result. The affidavit further states, “[r]obbery detectives received information that Billy Gene Marshall committed the robbery as well.” (Amended O.R. 26). It is this single reference to an unnamed informant, without any additional information regarding the credibility of the source, which Appellant claims dooms the affidavit. ¶53 Based upon a review of the entire affidavit, we find it was sufficient to provide the magistrate a substantial basis for concluding that probable cause existed to issue the search warrant. The single reference to an unnamed informant does not detract from the wealth of information specific to its source provided in the affidavit. This proposition is denied. ¶54 Appellant alleges in his sixth proposition of error that the trial court abused its discretion by not sua sponte instructing the jury to sentence Appellant in the first stage of trial for the first degree murder conviction. The record shows Appellant was convicted of first degree murder and first degree robbery. The trial court proceeded to a second stage where evidence of seven prior felony convictions was admitted pursuant to 21 O.S.Supp.2002, § 51.1. As punishment for the murder conviction, the jury recommended a sentence of life in prison without the possibility of parole. Vol. 81 — No. 15 — 5/29/2010

¶55 We review only for plain error as Appellant did not object to the instructions regarding the use of his prior convictions or the manner in which the trial was bifurcated. See Eizember v. State, 2007 OK CR 29, ¶ 106, 164 P.3d 208, 235. ¶56 In McCormick v. State, 1993 OK CR 6, ¶ 40, 845 P.2d 896, 903, this Court held that bifurcation is not authorized in first-degree murder trials where the State is not seeking the death penalty, and there are no previous convictions in other counts requiring bifurcation under 22 O.S.2001, § 860. Later, in Carter v. State, 2006 OK CR 42, ¶ 2, 147 P.3d 243, 244, we reiterated that where the State is not seeking the death penalty and there are no other charged offenses requiring bifurcation under 22 O.S.2001, § 860.1, bifurcation is not authorized. We found the bifurcation used in Carter violated McCormick. However, as the appellant suffered no prejudice, this Court found no relief was warranted. ¶57 In McCormick and Carter, the defendant was convicted only of first degree murder. In the present case, Appellant was charged and convicted of non-capital murder, which is not a charge requiring bifurcation, and first degree robbery, subject to bifurcation pursuant to § 860.1. Appellant raises the issue that in the recent unpublished opinion of Lewis v. State, F-2008-06 (Okl.Cr.2009) the defendant was similarly convicted of non-capital first degree murder and robbery with firearms with the allegation of prior felony convictions. This Court found that deciding punishment for both the non-enhanceable murder conviction and the enhanceable robbery conviction was improper. This Court stated: To make it clear, when a defendant is charged with non-capital first degree murder, as well as other felony offenses, and the defendant has prior convictions alleged on a “page 2,” the procedure shall be that the jury should decide guilt/innocence and punishment on the non-capital first degree murder charge, and guilt/innocence, but not punishment, for the other counts in the first stage. Punishment for the other counts should be decided during the second stage, where the prior felony convictions are introduced. This procedure is necessary, because of the incongruity which would be created if a different procedure is utilized for those only facing a murder charge versus those with a murder charge, as well as other enhanceable felonies. An enhancement

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stage would be created for the non-capital murder charge, where one is not authorized by statute.6 ¶58 While Lewis is not binding precedent of this Court, the procedure in this case violated Lewis. However, this Court will not reverse a conviction or modify a sentence unless we find not only error, but some prejudicial effect resulting from that error. Carter, 2006 OK CR 42, ¶ 2, 147 P.3d at 244. See also 20 O.S.2001, § 3001.1. Here, we find no prejudice as evidence of Appellant’s brutal beating to death of his 71 year old former neighbor, in his own home, in order to rob him and not leave any witnesses, more than supports the life without parole punishment imposed. Any error in the sentencing was harmless beyond a reasonable doubt. This proposition of error is denied. ¶59 In his seventh proposition, Appellant contends the combined errors in his trial denied him the right to a constitutionally guaranteed fair trial. This Court has repeatedly held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Williams v. State, 2001 OK CR 9, ¶ 127, 22 P.3d 702, 732. However, when there have been numerous irregularities during the course of a trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors is to deny the defendant a fair trial. Id. While we have found error occurring in both the first and second stages of this trial, none of these errors required reversal singly. In viewing the cumulative effect of these errors we also find they do not require reversal of this case as none were so egregious or numerous as to have denied Appellant a fair trial. Therefore, no new trial or modification of sentence is warranted and this assignment of error is denied. ¶60 In a pro se supplemental brief, Appellant raises six allegations of ineffective assistance of trial counsel. Pursuant to an order from this Court, the State responded to these claims maintaining that Appellant’s trial counsel provided effective assistance and no relief is warranted. ¶61 Under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) to prove a claim of ineffectiveness, the defendant must show that counsel’s performance was deficient, and that the deficient performance prejudiced the defense. Bland v. State, 2000 OK CR 11, ¶¶ 112-113, 4 P.3d 702, 730-731. The burden rests with Appellant to show that counsel’s performance was deficient and that he was prejudiced thereby. When a 1300

claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Id., citing Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. ¶62 Appellant first claims that counsel was ineffective for failing to cross-examine Detective Felton concerning statements used in the affidavit for the search warrant of Appellant’s car. Appellant contends the affidavit contains inaccurate statements. However, he does not identify what these inaccuracies might be or how they would have been corrected on crossexamination. Further, he does not state how he was prejudiced by the search of his car. The evidence linking him to the murder — the bloody jeans, socks and the decedent’s wallet — were found in the house on 51st, and not the car. Appellant has failed to show how he was prejudiced by counsel’s conduct. ¶63 Appellant next complains that Mr. Jacobs’, the decedent’s neighbor, provided false evidence that before 12:20 p.m., the day of the murder, he heard his dog barking. He claims this formed the basis for the prosecutor’s allegedly false theory that Appellant cut his leg on the fence leaving the scene of the murder. Appellant claims he was prejudiced by counsel’s failure to object to this allegedly false evidence. Further, he claims the State failed to provide any pre-trial discovery concerning Mr. Jacobs’ testimony and defense counsel failed to raise an objection. ¶64 Appellant provides no information showing that Mr. Jacobs’ testimony was false or that there was any discovery violation. Mr. Jacobs was thoroughly cross-examined at trial without any mention of a discovery violation. ¶65 Appellant also asserts that the prosecution had his girlfriend Sheila Jones falsely testify that the water was turned off at the house on 51st street and defense counsel failed to object to this testimony. Once again, Appellant offers no support for his claim this was false testimony. He has failed to show any prejudice by counsel’s conduct. ¶66 In his third and fourth claims of ineffective assistance, Appellant contends trial counsel failed to object to the seizure of evidence from the house on 51st street and that the search warrant was not obtained in good faith. As addressed in the fourth proposition of error above, defense counsel did file a motion to suppress the evidence seized from the house. However, based upon the trial court’s overruling of that motion, counsel did not again object to the evidence when it was admitted. Also, as

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addressed previously, even though the property had been abandoned by Appellant and he lacked standing to object, the search warrant was valid. Therefore, we will not find counsel ineffective for failing to raise a second objection to the admission of the seized evidence. ¶67 Appellant next finds counsel ineffective for failing to object to the DNA taken from him by buccal swab because he was not advised of his Miranda rights.7 The buccal swab was obtained as the result of a valid search warrant. (Amended O.R. pgs. 3-9). Accordingly, Appellant was not entitled to advisement of Miranda rights prior to the execution of the search warrant. We will not find counsel ineffective for failing to raise an objection which would have been overruled. Phillips v. State, 1999 OK CR 38,¶ 104, 989 P.2d 1017, 1044. ¶68 Finally, Appellant claims counsel was ineffective for failing to object to the search warrant for the buccal swabs because the supporting affidavit allegedly contained falsehoods. Appellant provides only conclusory allegations in support. A review of the affidavit shows it was sufficient to support the search warrant for Appellant’s DNA. Appellant has not shown he was prejudiced by counsel’s failure to object. ¶69 The record reflects trial counsel vigorously and competently defended Appellant in the face of overwhelming evidence of guilt. Trial counsel filed numerous motions prior to trial, and at trial, repeatedly raised and argued objections and thoroughly cross-examined witnesses. Appellant has failed to meet his burden of showing a reasonable probability that, but for any unprofessional errors by counsel, the result of the trial would have been different as any errors or omissions by counsel did not influence the jury’s determination of guilt or punishment. Accordingly, we find that Appellant was not denied effective assistance of counsel and this assignment of error is denied. DECISION ¶70 The Judgment and Sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE WILLIAM C. KELLOUGH, DISTRICT JUDGE

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APPEARANCES AT TRIAL Marny Hill, Assistant Public Defender, 423 S. Boulder, Tulsa, OK, Counsel for Appellant Tim Harris, District Attorney, Jack Thorp, Lee Berlin, Assistant District Attorneys, 500 S. Denver, Tulsa, OK, Counsel for the State APPEARANCES ON APPEAL Stuart W. Southerland, Assistant Public Defender, Tulsa County Public Defender’s Office, 423 S. Boulder Ave., Ste. 300, Tulsa, OK 74103, Counsel for Appellant W.A. Drew Edmondson, Attorney General of Oklahoma, Donald D. Self, Assistant Attorney General, 313 N.E. 21st St., Oklahoma City, OK 73105, Counsel for the State Opinion by: Lumpkin, J.; C. Johnson, P.J., concur in results; A. Johnson, V.P.J., concur; Lewis, J., concur. 1. See McCarty v. State, 2005 OK CR 10, 114 P.3d 1089, on post-conviction, the conviction was reversed, the death sentence was vacated, and the case remanded for a new trial. 2. 12 O.S.1991, § 2703 provided: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. An amendment, effective November 1, 2009 adds the following language: Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. 3. Implicit in the testimony of any expert witness is the ability to form an independent opinion based on the evidence and materials reviewed. If Mr. Wilson had formed and testified to his own independent opinion the issue would be moot. 4. Compare State v. Crager, 879 N.E.2d 745 (Ohio 2007) where the Ohio Supreme Court held that based on its “own interpretation of Crawford”, DNA reports were properly admitted under the hearsay exception of “business records” and a criminal defendant’s constitutional right to confrontation is not violated when a qualified expert DNA analyst testifies at trial in place of the DNA analyst who actually conducted the testing. However, in Crager v. Ohio, 129 S.Ct. 2856, 174 L.Ed. 598 (2009) the Supreme Court vacated the judgment and remanded the case for further consideration in light of Melendez-Diaz. 5. Appellant argues in passing that improper hearsay was admitted during the testimony from the investigating officer in the J & J robbery, Detective Little. Appellant contends that over defense counsel’s objection, Det. Little testified that the police had received an anonymous tip that “Mr. Henry Cobb and Mr. Billy Marshall were responsible for the robbery at J & J’s”. Appellant’s trial objection on the grounds of hearsay was overruled with the court agreeing with the prosecutor that the statement was not offered for the truth of the matter. This conclusion is supported by reading the testimony in context. Det. Little testified that the physical evidence from the J & J robbery yielded no leads in finding the perpetrator. It was not until police received the anonymous tip did they focus their investigation on Appellant. The hearsay rule does not preclude a witness from testifying about the actions he or she took as a result of a conversation with a third party. Fontenot v. State, 1994 OK CR 42, ¶ 41, 881 P.2d 69, 82. 6. In footnote 3, this Court recognized an exception where a defendant testifies and admits his prior convictions in the first stage, thereby waiving the bifurcated proceeding. 7. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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Court of Civil Appeals Opinions 2010 OK CIV APP 48 MICHAEL W. LIPPITT, Plaintiff/Appellee, v. FARMERS INSURANCE EXCHANGE, TRUCK INSURANCE EXCHANGE, FIRE INSURANCE EXCHANGE, MID-CENTURY INSURANCE COMPANY, FARMERS NEW WORLD LIFE INSURANCE COMPANY and FARMERS INSURANCE COMPANY, Defendants/Appellants. Case No. 106,229. October 2, 2009 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE DAMAN H. CANTRELL, TRIAL JUDGE REVERSED James P. McCann, Jon E. Brightmire, DOERNER, SAUNDERS, DANIEL & ANDERSON, L.L.P., Tulsa, Oklahoma, for Plaintiff/Appellee Randall J. Snapp, Brooke S. Murphy, Amanda L. Maxfield Green, CROWE & DUNLEVY, Tulsa and Oklahoma City, Oklahoma, for Defendants/Appellants DEBORAH B. BARNES, PRESIDING JUDGE: ¶1 Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, MidCentury Insurance Company, and Farmers New World Life Insurance Company (collectively, Farmers)1 appeal the September 22, 2008 Order Granting Preliminary Injunction preventing Farmers from terminating its contract with Michael W. Lippitt (Lippitt) while the case proceeds on the merits. FACTS AND PROCEDURAL BACKGROUND ¶2 Prior to entering into the contract at issue in this case, Lippitt was an insurance agent for Farmers. After a few years of sales, Farmers approached Lippitt about becoming a district manager. In September of 1966, Lippitt and Farmers entered into a District Manager’s Appointment Agreement for Farmers District 08-04, a district composed of a number of rural counties in Northeast Oklahoma. In July of 1967, Lippitt and Farmers entered into a second District Manager’s Appointment Agree1304

ment (the DMAA) for the same area. The DMAA superseded the 1966 agreement and is the contract at issue in this case. Lippitt’s relationship with Farmers under the DMAA has been maintained for over 40 years. ¶3 On January 17, 2008, Gregor Scott, the Oklahoma State Executive Director of Farmers (Scott), met with Lippitt regarding his recent performance and offered Lippitt the opportunity to retire. When Lippitt declined, Scott provided him with a prepared letter dated January 17, 2008. This letter stated that the DMAA would terminate in thirty days, on February 18, 2008, “in accordance with Paragraph D” of the DMAA. Paragraph D provides that “[t]his Agreement . . . may be cancelled without cause by either [Lippitt] or [Farmers] on 30 days written notice . . . .” ¶4 On February 14, 2008, Lippitt filed a Petition in Tulsa County District Court naming Farmers as the defendant. The Petition states a claim for breach of contract and seeks temporary, preliminary and permanent injunctions to prevent Farmers’ termination of the DMAA. Along with the Petition, Lippitt filed an Application for Temporary Restraining Order and Preliminary Injunction. In a Minute Order filed on February 21, 2008, the trial court granted Lippitt’s Application for Temporary Restraining Order to prevent termination of the DMAA until the trial court could decide the issue of whether a preliminary injunction should be granted. ¶5 On April 4, 2008, the trial court heard arguments and evidence, including testimony, on Lippitt’s Application for Preliminary Injunction. At the close of this hearing, the trial court ordered the parties to file post-hearing briefs. On July 29, 2008, the trial court filed its Order Granting Plaintiff’s Motion for Preliminary Injunction to prevent Farmers’ termination of the DMAA while the case proceeds on the merits. On September 22, 2008, the July 29, 2008 Order was converted, without any substantive changes, into the Order Granting Preliminary Injunction, which states, in part: The Court finds that the uniqueness of [Lippitt’s] contract and the speculative nature of the potential damages as a result

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of [Lippitt’s] 40 year history in the District, as well as marketplace uncertainties and other factors discussed at trial warrant granting injunctive relief. From this Order Farmers appeals. STANDARD OF REVIEW ¶6 An injunction is an “extraordinary remedy, and relief by this means is not to be lightly granted.” Amoco Production Co. v. Lindley, 1980 OK 6, ¶ 50, 609 P.2d 733, 745. The applicant must show entitlement to injunctive relief by clear and convincing evidence. CoxCom, Inc. v. Oklahoma Secondary Schools Athletic Association, 2006 OK CIV APP 107, 143 P.3d 525. “The standard of review imposed for the issuance of a temporary injunction is whether the trial court abused its discretion or entered a decision against the evidence.” Brown v. Oklahoma Secondary School Activities Association, 2005 OK 88, ¶ 11, 125 P.3d 1219, 1225. (Footnote omitted.) In reviewing the decision, the appellate court will consider and weigh the evidence presented to the district court. Board of Regents of the University of Oklahoma v. National Collegiate Athletic Association, 1977 OK 17, ¶ 3, 561 P.2d 499, 502. ANALYSIS ¶7 Title 12 O.S.2001 § 1382 states, in pertinent part, that a temporary injunction is warranted: When it appears, by the petition, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or when, during the litigation, it appears that the defendant is doing, or threatens, or is about to do or is procuring or suffering to be done, some act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. Oklahoma courts consider four criteria in determining whether to grant a temporary injunction: “(1) the applicant’s likelihood of success on the merits, (2) irreparable harm to the party seeking relief if injunctive relief is denied, (3) the relative effect on the interested parties, and (4) public policy concerns arising out of the issuance of injunctive relief.” CoxCom, Inc., at ¶ 10, 143 P.3d at 528. (Citation Vol. 81 — No. 15 — 5/29/2010

omitted.) Courts focus most heavily upon the irreparable harm requirement. Id.2 ¶8 Lippitt argues that he will suffer irreparable harm if a preliminary injunction is not granted. “[I]njury . . . is irreparable when it is incapable of being fully compensated for in damages or where the measure of damages is so speculative that it would be difficult if not impossible to correctly arrive at the amount of the damages.” Hines v. Independent School District No. 50, Grant County, Oklahoma, 1963 OK 85, ¶ 14, 380 P.2d 943, 946. (Citations omitted.) “Damages, to be recoverable, must be susceptible of ascertainment in some manner other than by mere speculation, conjecture or surmise, and by reference to some definite standard.” Great Western Motor Lines, Inc. v. Cozard, 1966 OK 134, ¶ 8, 417 P.2d 575, 578. (Citations omitted.) In his Petition, and in his Application for Preliminary Injunction, Lippitt asserts that he would suffer irreparable harm in “various forms” after termination of the DMAA, namely: (1) monetary damages due to lost compensation in the form of commission overrides, (2) damage to reputation, (3) loss of profession, and (4) loss of efforts and investment in building up his district for over 40 years. Lippitt argues that these damages would be difficult if not impossible to measure and, therefore, the only remedy capable of preventing irreparable harm is an injunction preventing the termination of the DMAA. We disagree and find that the trial court abused its discretion when it found, by clear and convincing evidence, that irreparable harm would result absent the issuance of an injunction. (1) Lost Commission Overrides ¶9 Lippitt’s compensation as a district manager consists of commission overrides. These commission overrides, paid to Lippitt by the 25 agents in his district, are generated by (1) renewal premiums on existing policies (renewal premiums), and by (2) premiums on new policies (new policy premiums). ¶10 Commission overrides generated by renewal premiums have been found to be a “predictable, quantifiable amount of future income.” Hall v. Farmers Insurance Exchange, 1985 OK 40, ¶ 25, 713 P.2d 1027, 1031.3 Renewal premiums are based upon policies that have already been sold, and such policies can be expected to “be renewed at a predictable, quantifiable rate.” Id. at ¶ 22. Furthermore, as shown below, there exist sufficient tangible

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facts in the record from which Lippitt’s damages - based upon both renewal premiums and new policy premiums - can be ascertained in a manner other than by mere speculation, conjecture or surmise. Great Western Motor Lines, Inc., 1966 OK 134, 417 P.2d 575. To the extent that Lippitt’s compensation as district manager under the DMAA stems from renewal premiums, we find that such amounts, although subject to some uncertainty, would not be too speculative or impossible to calculate. In regard to renewal premiums, termination of the DMAA would not result in irreparable harm. ¶11 Lippitt argues that, unlike renewal premiums, his compensation based upon new policy premiums is subject to “the independent and unpredictable performance” of the 25 agents in his district. Damages based upon new policy premiums are, in addition, subject to unforeseeable marketplace fluctuations. Therefore, Lippitt argues, his damages based upon new policy premiums are too difficult or impossible to calculate and, absent an injunction, would result in irreparable harm. ¶12 Damages based upon loss of commission overrides for new policy premiums are analogous to loss of future profits addressed by the Oklahoma Supreme Court in Bokoshe Smokeless Coal Co. v. Bray, 1916 OK 111, 155 P. 226. In Bokoshe, the Oklahoma Supreme Court articulated “the general rule that anticipated profits of a future business are so dependent upon numerous and uncertain contingencies that their amount is seldom susceptible of proof, with any reasonable degree of certainty, and are too remote, speculative, and uncertain to sustain a judgment for the loss thereof.” Id. at ¶ 8, 155 P. at 229. In other words, anticipated profits of a commercial business or other like business, are ordinarily too speculative to warrant recovery for their loss. However, “there is an exception to this general rule, which is that the loss of profits . . . of an established business, may be recovered where it is made reasonably certain by competent proof what the amount of the loss actually is; and such damages must be established, not by guesswork, conjectures, uncertain estimates, nor mere conclusions, but by tangible facts, from which actual damages may be logically and legally shown or inferred.” Id. In other words, anticipated profits from an established business may be recovered where the amount of loss can be shown with reasonable certainty and/or by just and reasonable inference. Id.; Florafax International, Inc. v. GTE 1306

Market Resources, Inc., 1997 OK 7, 933 P.2d 282. The Oklahoma Supreme Court has stated that: It is a matter of common knowledge and experience that persons who have an established business calculate with reasonable certainty the income derived and to be derived from their business and make their plans to live accordingly. In fact, the credit structure of the country rests largely upon the certainty of income from established business in all lines of business and industry, and certainly the value of an established business is not such a matter of speculation, nor the prospect of profits therefrom so remote, as not to form a basis for recovery of damages for injury to it…. Firestone Tire & Rubber Co. v. Sheets, 1936 OK 523, ¶ 9, 62 P.2d 91, 93. ¶13 Lippitt’s district is an established one: it has existed under Lippitt’s management for over 40 years and has the second highest number of policies in Oklahoma. Lippitt’s agents, numbering around 25, are a “dedicated” and, in part, multigenerational workforce. As stated by Lippitt, “[I’m] very proud of the agents within my district. They’re dedicated. . . . That’s why we have an old culture, an old tenure. I have eight second-generation agents in my district, one third generation.”4 Lippitt’s anticipated compensation as a district manager from new policy premiums under the DMAA is analogous to anticipated profits from an established business, and there are tangible facts from which a damages amount can be calculated with reasonable certainty. ¶14 These tangible facts include the following: on at least two occasions Lippitt communicated to Scott his intention of completing 50 years of service before retiring.5 Lippitt completed 45 years of service on February 28, 2008, and his damages could readily be calculated until five years from this date. In fact, Lippitt’s own counsel stated that Lippitt “planned to work another five years.”6 Lippitt’s counsel stated that Lippitt’s “commissions and overrides which he receives on an annual basis are something on the order of $600,000 a year….”7 Lippitt also testified to the fact that he was making approximately $600,000 a year in gross commission overrides from Farmers.8 According to Lippitt’s “YTD Commission Statement,” Lippitt has made the following amounts in total commission overrides (renewal premiums plus new policy premiums) from 2003

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through 2007: $574,021.22 in 2003, $591,162.61 in 2004, $597,413.98 in 2005, $577,964.42 in 2006, and $565,672.66 in 2007, with an average of $581,246.98.9 During this time, Lippitt’s salary never fluctuated more than three percent from the five-year average.10 As stated by Lippitt’s own counsel, in “five more years . . . [it] would be about a three-million dollar income over that period of time . . . .”11 ¶15 Although Lippitt’s compensation that stems from new policy premiums may be dependent upon numerous and uncertain contingencies, such as the independent and unpredictable future sales of the agents in his district, Lippitt’s district is an established one and there exist sufficient tangible facts from which a reasonable calculation of damages can be made. In regard to new policy premiums, termination of the DMAA would not result in irreparable harm. ¶16 In regard to lost commission overrides in general, we find that, in the event Lippitt is successful at trial, his damages are “susceptible of ascertainment in some manner other than by mere speculation, conjecture or surmise, and by reference to some definite standard.” Great Western Motor Lines, Inc., at ¶ 8, 417 P.2d at 578. (Citations omitted.) Therefore, the trial court abused its discretion when it found, by clear and convincing evidence, that the irreparable harm requirement was satisfied for purposes of granting a preliminary injunction. (2) Damage to Reputation ¶17 Triers of fact are capable of calculating damages for injury to reputation. See Harolds Stores, Inc. v. Dillard Department Stores, Inc., 82 F.3d 1533 (10th Cir. 1996). Furthermore, an injunction is an extraordinary remedy that will not be lightly granted, especially when a legal remedy is available. Amoco Production Co., at ¶ 50, 609 P.2d at 745. We find that, in the event Lippitt succeeds on the merits at trial, any damage to his reputation, if supported by competent evidence, can be reasonably calculated into money damages.12 Failure to grant a preliminary injunction would not result in irreparable harm to Lippitt’s reputation. (3) Loss of Profession ¶18 Lippitt’s damage claim for loss of profession can be adequately compensated, in the event he succeeds at trial, by awarding Lippitt the loss of commission overrides in the manner described above. We find that any damage Vol. 81 — No. 15 — 5/29/2010

caused by the loss of his profession is compensable and will not result in irreparable harm to Lippitt. (4) Loss of Efforts and Investment in Building District ¶19 In the event that he succeeds at trial, Lippitt claims that it would be too speculative to quantify damages attributable to the loss of over 40 years of personal efforts and investments in his district. However, Lippitt has already been compensated for his efforts and investments. Under the DMAA, Lippitt has been compensated for his work as the district manager by commission overrides “on all business produced by agents of, and written by [Farmers] in the District.”13 The following exchange took place at the hearing on the preliminary injunction: [Farmers’ counsel:] … [Y]ou’ve been paid your commission override for the production within your district, correct? [Lippitt:] And Farmers has made a wonderful profit of all the years, yes. [Farmers’ counsel:] And you have too? [Lippitt:] Yes. It’s a two-way street.14 ¶20 To the extent that any efforts to motivate the agents in his district, or to grow or maintain the number of policies in force in his district, have been successful, Lippitt has already reaped the benefits of those efforts and investments. In fact, Lippitt’s compensation under the DMAA averaged $581,246.98 per year over the most recent five years. In the event that Lippitt succeeds at trial, we find that termination of the DMAA will not result in irreparable loss of the efforts and investment Lippitt has placed in his district over the years because he has already been compensated. ¶21 If the injury may be compensated by an award of monetary damages then an adequate remedy at law exists and no irreparable harm may be found as a matter of law. CoxCom, Inc. v. Oklahoma Secondary Schools Athletic Association, 2006 OK CIV APP 107, 143 P.3d 525.15 We find that Lippitt has an adequate remedy at law, and the trial court abused its discretion when it found, by clear and convincing evidence, that irreparable harm would result from

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termination of the DMAA in the event Lippitt succeeded at trial.

PURCELL, OKLAHOMA, Defendant/ Appellant.

CONCLUSION

Case No. 106,925. January 5, 2010

¶22 “[A]ll four criteria . . . must be met before a temporary injunction is issued [and] courts tend to focus most heavily upon the ‘irreparable harm’ requirement.” CoxCom, Inc., at ¶ 11, 143 P.3d at 528. (Citation omitted.) Lippitt has not demonstrated irreparable harm by clear and convincing evidence. Instead, the evidence indicates that any harm to Lippitt can be adequately compensated with money damages. Having found that Lippitt did not demonstrate irreparable harm, it is unnecessary for this Court to determine whether Lippitt met the other criteria for issuance of a preliminary injunction. See Id. at ¶ 17.

APPEAL FROM THE DISTRICT COURT OF McCLAIN COUNTY, OKLAHOMA

¶23 For the reasons set forth, we find that the trial court abused its discretion by granting a preliminary injunction. ¶24 REVERSED.

HONORABLE JOHN A. BLAKE, TRIAL JUDGE AFFIRMED Raymond A. Vincent, Ted N. Pool, POOL BLANKENSHIP VINCENT & POOL, Oklahoma City, Oklahoma, for Plaintiff/Appellee, William R. Dill, Norman, Oklahoma, for Defendant/Appellant. JOHN F. FISCHER, JUDGE: ¶1 The City of Purcell appeals from the judgment of the district court declaring that a Purcell ordinance annexing territory was void for lack of proper statutory notice. Based on our review of the applicable law, we affirm. BACKGROUND

WISEMAN, V.C.J., and GOODMAN, J., concur. 1. Farmers, as used herein, does not include Farmers Insurance Company because no such entity was a signatory to the contract at issue, and no entity exists with that precise name. Appellants’ Brief-inChief, nt. 1; Pl.’s Exh. 14; Transcript (Tr.), at 18. 2. “Irreparable injury is the sine qua non for the grant of preliminary relief.” Williams Exploration Co. v. U.S. Department of Energy, 561 F. Supp. 465, 469 (N.D.Okla. 1980). “The harm to be occasioned in absence of an injunction must be irreparable to the Plaintiff.” Amoco Production Co., at ¶ 53, 609 P.2d at 746. 3. “In Hall, we held . . . that damages based upon the value of future renewal commissions were proper.” Bigbie v. Bigbie, 1995 OK 72, ¶ 10, 898 P.2d 1271, 1273. 4. Tr., at 148-49. 5. Record (R.), 5, 6, 130. 6. Tr., at 104 7. Tr., at 105-106. The Petition itself, filed by Lippitt on February 14, 2008, around five years prior to what would be 50 years of service, reflects the calculability of damages based upon this five-year measure. The Petition seeks damages “in an amount difficult to determine but believed to be in excess of $3,000,000.00,” reflecting Lippitt’s reasonably consistent salary of $600,000 per year for five more years. 8. Tr., at 208. 9. R., at 164-166. 10. R., at 166. 11. Tr., at 106. 12. Lippitt does not argue otherwise in his brief and states instead that, “Damage to reputation . . . [is] not necessarily sufficient evidence of irreparable harm . . . .” Appellee’s Answer Brief, p. 23, nt. 9. 13. Pl.’s Ex. 18. 14. Tr., at 232. 15 In CoxCom, Inc., the Oklahoma Court of Civil Appeals found that, because the applicant for the injunction did not demonstrate irreparable harm, a preliminary injunction should not be granted. Because this criteria was not met, the Oklahoma Court of Civil Appeals found that it was unnecessary to determine whether the other criteria for the issuance of a preliminary injunction were satisfied.

2010 OK CIV APP 44 THE TOWN OF GOLDSBY, OKLAHOMA, Plaintiff/Appellee, vs. THE CITY OF 1308

¶2 The Town of Goldsby is a municipality located in McClain County, Oklahoma, and governed by a statutory board of trustees. Purcell is also a municipality located in McClain County, and governed as a charter city. On May 9, 2007, Goldsby adopted a resolution proposing the annexation of certain territory adjacent to the town. On May 17, 2007, Goldsby published notice of the intended annexation in the “Purcell Register,” a legal newspaper for McClain County. The notice set a date of June 11, 2007, for public hearing on the Goldsby annexation proposal. On May 25, Purcell published a notice in the “Oklahoman” newspaper of a proposed annexation that included the territory Goldsby had previously proposed to annex.1 This notice set a date of June 8, 2007, for a public hearing on the Purcell annexation proposal. On May 31, 2007, Purcell published similar notice in the Purcell Register. Immediately after the June 8 hearing, Purcell passed an ordinance annexing the disputed area. After the June 11 hearing, Goldsby passed an ordinance annexing the same disputed area. ¶3 Goldsby filed a declaratory judgment action in the district court arguing that the Purcell annexation was void for lack of proper and timely publication of notice pursuant to 11 O.S. Supp. 2005 § 21-103(B) and (C).2 The district court held that Purcell’s publication of notice

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in the “Oklahoman” did not meet the requirements of section 21-103(B)(1) that notice be published in “a legally qualified newspaper of general circulation in the territory.” The court further held that Purcell’s later publication in the Purcell Register occurred less than 14 days before the June 8 public hearing, and did not meet the requirements of section 21-103(C) that “public hearing of such annexation shall be held no earlier than fourteen (14) days nor more than thirty (30) days following the publication and mailing of the notice.” The district court consequently ruled that Purcell’s annexation of the disputed territory was void. Purcell appeals. STANDARD OF REVIEW ¶4 The questions presented by Purcell’s appeal are questions of statutory interpretation. “A legal question involving statutory interpretation is subject to de novo review . . . i.e., a non-deferential, plenary and independent review of the trial court’s legal ruling.” Heffron v. Dist. Court of Oklahoma County, 2003 OK 75, ¶ 15, 77 P.3d 1069, 1076 (citing Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and n.5, 33 P.3d 302, 305 n.5). ANALYSIS ¶5 Purcell raises six assignments of error that may be condensed into two questions of law. The first is whether Purcell complied with the publication requirements of the applicable statutes more than 14 days prior to the public hearing on its annexation proposal. The second is whether a failure to comply with the publication requirements invalidates Purcell’s annexation ordinance. I. Statutory Publication of Notice ¶6 Title 11 O.S. Supp. 2005 § 21-103(B)(1) requires that: The governing body of the municipality shall direct that notice of the proposed annexation of the territory be published in a legally qualified newspaper of general circulation in the territory. . . . Section 21-103(C) requires that: [t]he public hearing of such annexation shall be held no earlier than fourteen (14) days nor more than thirty (30) days following the publication and mailing of the notice.3 Vol. 81 — No. 15 — 5/29/2010

Finally, 25 O.S.2001 § 106 (“Legal Notice — Publication By Newspaper”) provides: No legal notice, advertisement, or publication of any kind required or provided for by the laws of this state to be published in a newspaper shall have force or effect unless published in a legal newspaper of the county. A legal newspaper of the county is any newspaper which, during a period of one hundred four (104) consecutive weeks immediately prior to the first publication of such notice, advertisement, or publication: 1. has maintained a paid general subscription circulation in the county; and 2. has been admitted to the United States mails as paid second-class mail matter; and 3. has been continuously and uninterruptedly published in the county. If there is no legal newspaper in a county, then all legal notices, advertisements, or publications of any kind required or provided for by the laws of this state shall be published in a legal newspaper in an adjoining county of this state, which newspaper has general circulation in the county or political subdivision in which such notice is required.4 ¶7 It is undisputed that the Purcell Register is a legal newspaper of McClain County, but publication of Purcell’s notice in the Purcell Register occurred less than 14 days before the public hearing and failed the requirement of section 21-103(C). It is further undisputed that publication in the Oklahoman occurred more than 14 days before the public hearing. Therefore, the decisive question is whether the Oklahoman is a “legal newspaper of the county” pursuant to section 106. II. The Definition of Publication ¶8 Prior to 1983, section 106 required that a newspaper be “printed” in a county to qualify as a legal newspaper of that county. In 1983, the statutory language “has been printed in the county where delivered to the United States mails” was changed to “has been continuously and uninterruptedly published in the county.” Neither party cites case law dealing with the definition of a “legal newspaper of the county” after the 1983 amendment requiring the newspaper be published rather than printed in the county. However, the Oklahoma Attorney Gen-

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eral addressed the issue in opinion 2002 OK AG 10. This opinion noted that section 106 required both “general circulation” and “publication” in a county, indicating that the Legislature intended publication to have a meaning beyond simple circulation. The opinion further cited the discussion of section 106 contained in Oklahoma Journal Publ’g Co. v. City of Oklahoma City, 1980 OK CIV APP 42, ¶ 17, 620 P.2d 452, 455. Oklahoma Journal states that “[a] newspaper’s distribution or circulation is not a proper consideration in determining the place of publication” and: A newspaper must be considered published in one readily ascertainable location. An examination of the relevant factors discerned from Ruble5 reveal the balance clearly in favor of holding The Oklahoma Journal being published in Midwest City because that is where its principal offices are located, that is where its content is determined, that is where it is edited, and that is the place from which the newspaper is disseminated. Id. The Attorney General’s opinion accordingly concluded that: In the context of 25 O.S.2001 § 106, a newspaper is considered “published” at the location where the newspaper is disseminated by admission to the mails and has its principal offices, and where its form and content is determined. Accordingly, a newspaper cannot be a legal newspaper in an adjoining county, unless the adjoining county has no legal newspaper as stated in Section 106. 2002 OK AG 10at ¶ 17. ¶9 Purcell’s argument that both the Oklahoman and the Purcell Register are legal newspapers of McClain County is further expressly contradicted by section 106(3), which states: If there is no legal newspaper in a county, then all legal notices, advertisements, or publications of any kind required or provided for by the laws of this state shall be published in a legal newspaper in an adjoining county of this state, which newspaper has general circulation in the county or political subdivision in which such notice is required. 1310

This statute clearly provides that mere circulation in a county does not qualify a newspaper as a vehicle for publication of legal notice within the county. Only if there is “no legal newspaper in a county” may newspapers from adjoining counties be used for publication of legal notices. It is undisputed that the Oklahoman has no production facilities or public office in McClain County, that the Oklahoma is not edited, or its content determined in McClain County, and that that the Oklahoman’s principle office is located in Oklahoma City. ¶10 We find the Attorney General’s interpretation of section 106 persuasive. The Oklahoman is not published in McClain County, and cannot be a legal newspaper in McClain county because the Purcell Register is published there. Further, Ruble v. Redden, 1973 OK 157, ¶ 18, 517 P.2d 1124, 1126, notes that the “legislature has an interest in seeing that the publication of legal notices is accomplished in a manner most likely to reach the persons affected by or interested in the notice.” Contrary to Purcell’s argument, this interest is not best served by allowing notice to be given in any publication circulated in the county. The concentration of all applicable notices into a single local publication provides a single accessible source for legal notices. This serves the purpose of disseminating legal notices in a manner most likely to reach the persons entitled to notice. Therefore, we find that the district court did not err in holding that the Oklahoman was not a “legal newspaper” of McClain County for the purpose of the notice provisions of 11 O.S. Supp. 2005 § 21-103(B)(1). III. The Legal Effect of Improper Notice ¶11 Purcell also argues that the district court erred in declaring its annexation ordinance void because of its failure to publish notice in the Purcell Register 14 days prior to the hearing on its annexation proposal. Section 21-103 requires publication of notice of a public hearing on a proposed annexation. Section 106 clearly provides that no required legal notice has force or effect unless published in a manner compliant with the applicable statute. Consequently, statutorily compliant notice is a prerequisite to the enactment of an annexation ordinance. Purcell’s notice in the Oklahoman was not compliant because the Oklahoman is not a legal newspaper of McClain County. Purcell’s notice in the Purcell Register was not compliant because it was published on May 31, only eight days before the June 8 public hear-

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ing. Therefore, Purcell’s annexation ordinance is void. Goldsby legally annexed the disputed territory on June 11, and Purcell was powerless to annex the same territory at a later date.6 CONCLUSION ¶12 We find that the district court did not err in its holding that Purcell failed to properly publish notice of its proposed annexation, and Purcell’s annexation of the disputed territory was void. The judgment of the district court is affirmed. ¶13 AFFIRMED. GABBARD, P.J., and RAPP, J., concur. 1. On May 24, 2007, prior to publishing its May 25 notice, the mayor and city counsel of Purcell passed an ordinance purporting to annex substantially the same land that Goldsby had proposed to annex on May 9. This ordinance did not conform with Oklahoma law, and Purcell does not argue on appeal that this ordinance was legally valid. 2. 11 O.S. § 21-103 was revised in 2009. However the notice requirements at issue did not change. 3. In its brief to the district court, Purcell refers to these statutory sections as “21 O.S. §21-104. “ Title 21 contains criminal statutes. The requirements for annexation by a city such as Purcell are set out in 11 O.S. Supp. 2005 § 21-103, and the requirements for a town are set out in 11 O.S. Supp. 2005 § 21-104. We will take all references to Title 21 in this context as being references to Title 11. 4. Purcell argues that the “general” provisions of 25 O.S.2001 § 106 are overcome by the “specific” provisions of 11 O.S. Supp. 2005 § 21103(B)(1), and therefore section 106 has no relevance to our inquiry. However, section 106 is clearly controlling: “[n]o legal notice, advertisement, or publication of any kind required or provided for by the laws of this state to be published in a newspaper shall have force or effect unless published in a legal newspaper of the county” (emphasis added). 11 O.S. Supp. 2005 § 21-103(B)(1) uses the general term “published in a legally qualified newspaper of general circulation” but 25 O.S.2001 § 106 provides the specific definition of a “legal newspaper.” 5. Ruble v. Redden, 1973 OK 157, 517 P.2d 1124. 6. Purcell also argues that it gave adequate notice to achieve the purpose of the statute, irrespective of whether the Oklahoman was a “legal newspaper” in McClain County, because the affected property owners knew of the annexation proposal and the Oklahoman was more widely read than the Purcell Register in McClain County. However, Purcell provides no authority suggesting the notice requirements of section 21-103 may be equitably waived, or that some form of “substantial compliance” with the notice requirements is legally sufficient, and we find no such authority.

2010 OK CIV APP 47 DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff/Appellee, v. SANDI A. ROBERTS, Defendant/Appellant, and SPOUSE OF SANDI A. ROBERTS, If Married; TOM HERRING; NEW CENTURY MORTGAGE CORPORATION; DEUTSCHE BANK NATIONAL TRUST COMPANY UNDER THE POOLING AND SERVICES AGREEMENT DATED AS OF SEPTEMBER 1, 2002; MORGAN STANLEY DEAN WITTER CAPITAL I INC. TRUST 2002-NC4 BY AND THROUGH ITS ATTORNEY IN FACT, LITTON LOAN SERVICING, LP, a Vol. 81 — No. 15 — 5/29/2010

Delaware Limited Partnership; JOHN DOE; and JANE DOE, Defendants. Case No. 107,491. March 26, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE J. MICHAEL GASSETT, TRIAL JUDGE AFFIRMED Robert J. Bartz, David M. vonHartitzsch, Joe M. Fears, BARBER & BARTZ, Tulsa, Oklahoma, for Plaintiff/Appellee James L. Bentley, UAW-GM LEGAL SERVICES PLAN, Del City, Oklahoma, for Defendant/ Appellant DOUG GABBARD II, PRESIDING JUDGE: ¶1 In this foreclosure action, Defendant, Sandi A. Roberts (Homeowner), appeals the trial court’s grant of summary judgment in favor of Plaintiff, Deutsche Bank National Trust Company (Bank). We affirm. FACTS ¶2 Most of the facts are taken from the trial court’s six-page journal entry of judgment. In 1988, Homeowner and her husband, Donald Roberts (Husband), bought a home, which is the subject of this action. In 2002, they refinanced their mortgage with a 30-year note in the principal balance of $79,900. ¶3 In late 2005, Homeowner and Husband allegedly executed a new 30-year adjustable rate note and a mortgage in favor of First NLC Financial Services, LLC, Bank’s predecessor. The note, in the amount of $87,550, was used to pay off the 2002 note and mortgage, plus taxes and other settlement charges. The 2005 note bears only Husband’s signature, but the mortgage appears to bear the signatures of both Homeowner and Husband. ¶4 Husband died six months after the closing. Shortly thereafter, Bank notified Homeowner that she had fallen behind in her monthly mortgage payments. Bank filed a foreclosure action. Homeowner then satisfied the past due amounts, and Bank dismissed its action. ¶5 Homeowner continued making monthly payments through May 2007. In July, she notified Bank that she had learned the note and mortgage had been procured without her consent. She asserts that Husband moved out of

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the house and began living with another woman the month before the 2005 loan documents were executed, and that someone else impersonated her at the closing, possibly using her driver’s license. She asserted that she did not owe the balance of the note and that Bank was obligated to return her payments and release the mortgage. ¶6 Bank responded by notifying her it was accelerating the loan. When she refused to pay, Bank filed the present foreclosure action. Homeowner counterclaimed for a judgment declaring the mortgage void and quieting title to the property in her name. Bank filed a motion for summary judgment, asserting equitable subrogation. ¶7 The trial court granted Bank’s motion. It found that Homeowner “did not sign, authorize the signing, attend the closing or ratify the 2005 Note or 2005 Mortgage and any signature of hers on any documents associated with the 2005 Note or 2005 Mortgage is a forgery.” In a thorough and well-reasoned opinion, the trial court also found that the forged mortgage was void, that Bank should be equitably subrogated to the 2002 mortgage, and, therefore, Bank was entitled to judgment on the note and mortgage in the amount of $79,862.39, plus other charges, including attorney fees. The court also found that Homeowner did not have personal liability on the note. ¶8 Homeowner appeals. STANDARD OF REVIEW ¶9 Summary judgment is proper only when it appears that there is no substantial controversy as to any material fact and that one of the parties is entitled to judgment as a matter of law. Jordan v. Jordan, 2006 OK 88, ¶ 17, 151 P.3d 117, 121. We review a grant of summary judgment de novo. Young v. Macy, 2001 OK 4, ¶ 9, 21 P.3d 44, 47. De novo means we give no deference to the trial court’s ruling. Fisher v. Fisher, 2007 OK CIV APP 103, ¶ 3, 171 P.3d 917, 919.

the novelty of the issues we find that additional discussion is necessary. ¶11 The parties agree that the proceeds from the 2005 mortgage satisfied the 2002 mortgage. Thus, if Bank does not receive relief, Homeowner receives the benefits of the void mortgage. The trial court found that equitable subrogation applied, and discussed the concept in the following manner: 28. Equitable subrogation is a principle by which the responsibility for a contractual obligation’s discharge should ultimately be placed upon the person that, in good conscience, ought to pay. In re Estate of Macfarline, 2000 OK 87, ¶ 24, 14 P.3d 551, 561; citing Travelers Ins. Companies v. Dickey, 1990 OK 109, 799 P.2d 625. 29. The doctrine is a creation of equity intended to achieve the natural justice of placing the burden of the obligation where it ought to rest. It is not a fixed rule of law; instead, equitable subrogation is pliable and capable of being molded by the Court to attain justice and to compel the ultimate discharge of a debt or obligation by the party who in good conscience should pay. Macfarline, Id. at ¶ 31, 564; citing Republic Underwriters Ins. Co. v. Fire Ins. Exchange, 1982 OK 67, 655 P.2d 544. 30. “[O]ne who makes a loan in innocent reliance upon a forged real estate mortgage is upon the principle of subrogation entitled to subject the land to the repayment to him of such part of the money lent, as was used in taking up existing valid liens.” Equitable Life Assur. Soc. of U.S. v. McFadden, 1937 OK 519, 72 P.2d 795.

ANALYSIS

¶12 Like the instant case, McFadden involved a husband who forged his wife’s name on a note and mortgage, with the proceeds from the loan paying off a previous mortgage. The trial court rejected the lender’s attempt to foreclose. The Supreme Court reversed, holding that the wife had received the full benefit of the mortgagee’s proceeds, and that the doctrine of equitable subrogation applied.

¶10 This might otherwise be an appropriate case for granting a Supreme Court Rule 1.202(d) affirmance by summary opinion, for cases where “no reversible error of law appears and . . . the opinion or findings of fact and conclusions of law of the trial court adequately explains the decision.” However, because of

¶13 However, Homeowner asserts the present case is distinguishable from McFadden because her property is homestead, and homestead property is given additional protection by Oklahoma’s Constitution and statutes.1 Homeowner relies on Standard Savings & Loan Association v. Acton, 1936 OK 827, 63 P.2d 15,

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where the Supreme Court affirmed the trial court’s voiding a mortgage on a homestead executed by a wife without her husband’s signature. Applying “the express provision of our organic law,” the Court quoted a 1914 decision, Whelan v. Adams, 1914 OK 504, 145 P. 1158, stating, “No alienation of the homestead by the husband alone, in whatever way it may be affected, is of any validity; nothing that he can do or suffer to be done can cast a cloud upon the title; it remains absolutely free from all grants and the incumbrances, except those mentioned in the Constitution.” Acton, 1936 OK 827 at ¶ 16, 63 P.2d at 19.2 ¶14 The homestead concept has always been a part of Oklahoma’s culture and history, dating back to the time of the land runs. Its importance is so ingrained in the law that, as early as 1923, the Supreme Court found it “unnecessary to quote” the constitutional and statutory principles. See Nelson v. King, 1923 OK 554, ¶ 3, 217 P. 360, 362. Recently, the Court reaffirmed the principles that the homestead attaches to the land itself in order to preserve the family home for occupation, and to protect the family from demands of creditors. In re Arnold, 2003 OK 63, ¶¶ 7-8, 73 P.3d 861, 863. ¶15 However, just as McFadden does not involve homestead property, Acton and the other cases considering such property do not discuss equitable subrogation. Interestingly, Acton does acknowledge that the homestead protection might not apply if the homeowner committed fraud. Acton, 1936 OK 827 at ¶ 13, 63 P.2d at 16.3 ¶16 In this case, the parties argue as though homestead protection and equitable subrogation are competing and conflicting concepts. We do not believe the doctrines are inconsistent, and have reached this conclusion by examining the specific protection provided for homestead property by our Constitution. Article 12, section 2 of the Oklahoma Constitution protects the homestead from forced sale for the payment of debts, “except for the purchase money therefor or a part of such purchase money.” We relied on this language in deciding Cimarron Federal Savings Association v. Jones, 1991 OK CIV APP 67, 832 P.2d 426 (approved for publication by the Supreme Court). There, a husband and wife argued that a lender’s purchase money mortgage was subordinated to the wife’s homestead claim, because she had never executed the mortgage. We rejected this argument, stating: Vol. 81 — No. 15 — 5/29/2010

[T]he unambiguous provision of 16 O.S. 1981 § 4 [is] to the effect that only a mortgage on a “homestead exempt by law” need be subscribed by both living spouses. Clearly, Art. 12, § 3 of the Oklahoma Constitution and 31 O.S.1981 § 5 subordinate all homestead claims to the holder of a purchase money mortgage. In the present case, Cimarron holds a valid purchase money mortgage interest in the subject “homestead,” and [the wife’s] homestead claim is not “exempt by law” therefrom; rather, by operation of Art. 12, § 3 and 31 O.S. 1981 § 5, Cimarron’s purchase money mortgage takes precedence over any homestead claim. Id. at ¶ 7, 832 P.2d at 428. ¶17 Although Cimarron involved a purchase money mortgage and the instant case involves a refinanced mortgage, we do not find this difference dispositive. Section 7.2 of the Restatement (Third) of Property (Mortgages)(1977) defines a purchase money mortgage as “a mortgage given to a vendor of the real estate or to a third party lender to the extent that the proceeds of the loan are used to (1) acquire title to the real estate; or (2) construct improvements [thereon] if the mortgage is given as part of the same transaction in which title is acquired.” The Restatement then states that a “new” mortgage that releases and replaces a senior mortgage retains, with a few exceptions, the same priority. Id. at § 7.3. The refinanced mortgage in this case was an exchange for the old mortgage; it covered the homestead and it paid off the unpaid portion of the old mortgage with no excess. Applying Cimarron, we find that Bank holds a valid purchase money mortgage, that Homeowner’s homestead claim is not “exempt by law,” and that equitable subrogation is the appropriate remedy. ¶18 These conclusions are supported by two Oklahoma decisions that condition equitable subrogation on the interests taken in the subsequent mortgages. In Southwest Title & Trust Co. v. Norman Lumber Co., 1968 OK 71, 441 P.2d 430, the Supreme Court refused to apply subrogation because the new lender had failed to prove “any agreement that the first mortgage indebtedness would be satisfied in that manner [with proceeds from the new loan], or that the new lender believed in good faith that its security would be substituted of record for the one released and cancelled.” Id. at ¶ 0, 441 P.2d at 431 (syllabus of the court #1). On the other

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hand, our Court applied equitable subrogation in Mortgage Electronic Registration Systems, Inc. v. U.S., 2006 OK CIV APP 45, ¶ 20, 134 P.3d 913, 917, noting: In the present case, Lender made an agreement with Borrowers to provide a refinance loan in return for the 2001 mortgage’s priority position on the property. This is evidenced by the fact the loan was used to pay off all known encumbrances, and was for approximately the same amount. Also, Borrowers requested the loan for the purpose of refinancing at a lower interest rate and paying off the 2001 mortgage. Therefore, a trier of fact could find Lender did not voluntarily lend Borrowers money. Because Lender advanced the loan on a defective security for the purpose of paying off the 2001 mortgage, expecting to get good security, it is eligible for subrogation to the 2001 lien in the absence of intervening equities. ¶19 Indisputably, the loan that Husband received was exactly the amount necessary to pay off the 2002 note and mortgage, the costs of taxes, and various settlement charges. In fact, attached to Bank’s motion for summary judgment as Exhibit “I” is a copy of the check for almost the full amount of the loan, with a notation that it was to “Payoff first mortgage.” As in Mortgage Electronic, Bank satisfied the doctrinal requirement of an agreement that the new mortgage’s proceeds be used to pay off the old note and mortgage.4 Thus, the trial court properly applied subrogation. CONCLUSION ¶20 Accordingly, the trial court’s summary judgment is hereby affirmed.

2010 OK CIV APP 49 DUNBAR ENGINEERING CORPORATION, Plaintiff/Appellee, v. RHINOSYSTEMS, INC., Defendant/Appellant. Case No. 106,109. April 6, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE REBECCA BRETT NIGHTINGALE, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Douglas R. Scott, THE BAKER LAW FIRM, PLLC, Owasso, Oklahoma, for Plaintiff/Appellee Robert J. Bartz, Joe M. Fears, David M. vonHartitzsch, BARBER & BARTZ, Tulsa, Oklahoma, for Defendant/Appellant DEBORAH B. BARNES, JUDGE:

¶21 AFFIRMED. GOODMAN, J., concurs, and RAPP, J., not participating. 1. Okla. Const. art. 12 § 2, provides: The homestead of the family shall be, and is hereby protected from forced sale for the payment of debts, except for the purchase money therefor or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon; nor shall the owner, if married, sell the homestead without the consent of his or her spouse, given in such manner as may be prescribed by law; Provided, Nothing in this article shall prohibit any person from mortgaging his homestead, the spouse, if any, joining therein; nor prevent the sale thereof on foreclosure to satisfy any such mortgage. Title 16 O.S.2001 § 4(A) provides in relevant part: No deed, mortgage, or contract affecting the homestead exempt by law, except a lease for a period not exceeding one (1) year, shall be valid unless in writing and subscribed by both husband

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and wife, if both are living and not divorced, or legally separated, except as otherwise provided for by law. 2. The Court in Acton rejected an allegation, similar to one made in the instant case, that the husband had ratified the mortgage by accepting the proceeds: “One cannot ratify or adopt a contract that does not purport, at least remotely, to be in his behalf. . . . The mere fact that he subsequently accepted and used in his business some of the money derived by his wife from the loan, cannot, in our opinion, serve to dispense, with the necessity of his signature, upon any theory of ratification or adoption.” 1936 OK 827 at ¶¶ 11-12, 63 P.2d at 17-18. The Court noted the trial court had granted a personal judgment against the wife. 3. Cases from other jurisdictions often turn on similar specific facts about which party has knowledge of what conduct. Two recent Bankruptcy Court decisions illustrate this. In both, a spouse’s signature was forged. Equitable subrogation was allowed in a Kansas case, where the spouse whose signature was forged had knowledge of and consented to a refinancing. In re Cox, 408 B.R. 407 (Bkrtcy D. Kan. 2009). Another court reached the opposite result, concluding the lender had acted recklessly and its representative must have known about the forgery. In re Holmes, 403 B.R. 634 (Bkrtcy. D. Minn. 2009). 4. This result promotes the policy that “the doctrine of equitable subrogation works to protect homestead property. Without equitable subrogation, lenders would be hesitant to refinance homestead property due to increased risk that they might be forced to forfeit their liens. The ability to refinance provides homeowners the flexibility to rearrange debt and avoid foreclosure.” LaSalle Bank Nat’l Assoc. v. White, 246 S.W. 3d 616, 620 (Tex. 2007).

¶1 Rhinosystems, Inc., appeals the trial court’s Order Compelling Arbitration filed on June 25, 2008, in which the trial court ordered Rhinosystems and Dunbar Engineering Corporation (Dunbar), to “proceed to arbitrate [their] controversy in accordance with the terms of the arbitration provision contained in the Engineering Services Proposal . . . .” We find that the trial court erred in refusing to conduct an evidentiary hearing on Dunbar’s Motion to Compel Arbitration and in overruling Rhinosystems’s Motion to Reconsider. Therefore, we reverse and remand this case to the trial court to conduct an evidentiary hearing to resolve

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the contested issues of fact regarding whether a contract was formed to arbitrate disputes between the parties. FACTS AND PROCEDURAL BACKGROUND ¶2 Rhinosystems, an Ohio corporation, develops, manufactures, and markets nasal irrigation devices. In 2007, Rhinosystems completed the initial development of such a device. ¶3 Dunbar is an engineering firm located in Oklahoma. After preliminary emails and telephone conversations between Dunbar and Rhinosystems regarding the device in early November 2007, Dunbar, pursuant to Rhinosystems’s request,1 sent Rhinosystems an “Engineering Services Proposal” and “Rate Schedule” (the Proposal) on November 13, 2007. The Proposal set forth, inter alia, the tasks Dunbar would undertake (divided into three “phases”), the per hour rate of Dunbar’s staff, and contained the following arbitration provision: Any disputes are subject to binding arbitration with a [Dunbar] selected Tulsa attorney or arbitration firm. [Dunbar’s] client will pay [Dunbar’s] attorney, arbitration and court fees incurred. [Dunbar’s] liability for damages due to professional negligence will be limited to the fee or appropriate portion.2 ¶4 Dunbar commenced working on the first phase of the project delineated in the Proposal. According to Rhinosystems, the parties orally agreed that Dunbar render engineering services. However, Rhinosystems denies that such an agreement incorporated all the terms of the Proposal. Specifically, Rhinosystems denies that the arbitration provision was incorporated into their agreement.3 In its Brief-in-chief, p. 2, Rhinosystems argues that “[u]ltimately, [Rhinosystems] and Dunbar reached an oral agreement independent of the Proposal . . . .” ¶5 After a dispute over billing arose between the parties, Dunbar commenced this case by filing an Initial Application and Motion to Compel Arbitration on February 27, 2008. Dunbar requested the trial court to order Rhinosystems “to proceed to arbitration in accordance with the Arbitration Agreement between the parties.” Vol. 81 — No. 15 — 5/29/2010

¶6 In its Brief in Opposition filed on April 15, 2008, Rhinosystems objected to Dunbar’s motion. Rhinosystems attached an affidavit from its president, who averred that he ultimately rejected the Proposal, did not sign it, and that he had never discussed the arbitration clause with Dunbar.4 Dunbar, in its Motion to Compel Arbitration, attached a complaint sent by Rhinosystems to the Oklahoma State Board of Licensure for Professional Engineers and Land Surveyors (the Board), in which Rhinosystems stated: Attached as Exhibit B is [the Proposal] provided by Dunbar identifying the work that Dunbar was to do, the cost for completing the work and the associated rate schedule. [The Proposal] was never signed by [Rhinosystems]; however, Dunbar was orally instructed to proceed with the work identified as Phase One by [the Proposal].5 In its complaint to the Board, Rhinosystems also complained that “Dunbar has not completed the tasks of its Proposal, Phase One….” Dunbar also attached some emails between Rhinosystems and Dunbar which, it argues, further support its claim that Rhinosystems accepted the Proposal. ¶7 In a Notice of Hearing to set the date for a status conference, filed on May 14, 2008, the trial court granted Dunbar’s Motion to Compel Arbitration. On May 29, 2008, Rhinosystems filed a Motion to Reconsider in which, inter alia, it requested that the trial court conduct “an evidentiary hearing to resolve the fact issues between the parties as to whether an agreement to arbitrate existed and, if so, whether enforcement of such provision would be unconscionable.”6 Dunbar filed an objection to this motion on June 17, 2008. ¶8 The trial court denied Rhinosystems’s Motion to Reconsider and its request for an evidentiary hearing found therein. In an Order Compelling Arbitration filed on June 25, 2008, the trial court found that (1) the parties entered into an agreement for engineering services according to the terms of the Proposal drafted and submitted by Dunbar to Rhinosystems, (2) the terms of the parties’ agreement contained a provision that any disputes would be subject to binding arbitration, and (3) a dispute has arisen between the parties concerning payment and services under the agreement and this dispute is subject to the arbitration provision in the agreement. Therefore, the trial court ordered

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Rhinosystems and Dunbar to “proceed to arbitrate [their] controversy in accordance with the terms of the arbitration provision contained in [the Proposal] . . . .” From this order, and the order denying its Motion to Reconsider, Rhinosystems appeals. STANDARD OF REVIEW ¶9 Either party may request an evidentiary hearing on the motion to compel arbitration. Rogers v. Dell Computer Corp., 2005 OK 51, ¶ 17, 138 P.3d 826, 830. The decision to grant an evidentiary hearing will be in the discretion of the district court. Id. An abuse of discretion occurs when the trial court bases its decision on an erroneous conclusion of law or when there is no rational basis in the evidence for a ruling. Fent v. Oklahoma Natural Gas Company, 2001 OK 35, 27 P.3d 477. “In order to determine whether there was an abuse of discretion, a review of the facts and the law is essential.” Board of Regents of University of Oklahoma v. National Collegiate Athletic Association, 1977 OK 17, ¶ 3, 561 P.2d 499, 502. ¶10 A motion to reconsider is not recognized in Oklahoma procedural statutes. McMillian v. Holcomb, 1995 OK 117, n.3, 907 P.2d 1034, 1036 n.3. A motion for reconsideration may be regarded as a motion for new trial pursuant to 12 O.S.2001 § 651. Id. A motion seeking reexamination filed within ten days after the decision is treated as a motion for new trial. Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, ¶ 4, 681 P.2d 757. Here, Rhinosystems’s May 29, 2008 motion to compel arbitration was filed prior to the June 25, 2008 Order Compelling Arbitration and is, therefore, deemed filed on that date. 12 O.S.2001 § 653(C). We review a trial court’s order denying a motion for new trial pursuant to an abuse of discretion standard. Robinson v. Oklahoma Nephrology Associates, Inc., 2007 OK 2, 154 P.3d 1250. ANALYSIS ¶11 As stated above, either party may request an evidentiary hearing on the motion to compel arbitration. Rogers, 2005 OK 51, ¶ 17, 138 P.3d 826, 830. The decision to grant an evidentiary hearing will be in the discretion of the district court. Id. “However, if the existence of an agreement to arbitrate is controverted, then the better procedure is for the district court to conduct an evidentiary hearing before entering an order.” Id. In fact, where the party opposing a motion to compel arbitration “request[s] that the district court conduct an evidentiary hear1316

ing before ruling on the motion to compel arbitration,” and where there is no stipulation by the parties settling the controverted fact issues raised, “the district court [is] duty-bound under Rule 4(c) [of the Rules for District Courts] to grant [the] requested evidentiary hearing and allow [that party] to present proof in support of its opposition to the motion to compel arbitration.” Oklahoma Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12, ¶ 36, 160 P.3d 936, 950. “Such a hearing comports with notions of procedural due process.” Id. (footnote omitted). ¶12 Highly contested fact issues exist regarding the terms of the agreement for engineering services entered into by the parties. In particular, the parties dispute whether the arbitration clause was part of their agreement. As quoted in full above, Rhinosystems admitted in its complaint to the Board that it “instructed [Dunbar] to proceed with the work identified as Phase One by [the Proposal].” Rhinosystems complained that the invoices it received from Dunbar substantially exceeded the amount set forth for Phase One in the Proposal and “the work completed was substantially less than what had been promised for Phase One.”7 Dunbar also attached some emails between Rhinosystems and Dunbar which, it argues, further support its claim that Rhinosystems accepted the entire Proposal.8 ¶13 On the other hand, Rhinosystems’s president states in his affidavit that the Proposal was “the subject of a number of additional conversations between me and Mr. Dunbar, which ultimately resulted in my rejecting [the Proposal] and refusing to sign it.”9 He further states that none of those conversations concerned or mentioned arbitration. Rhinosystems argues that even if there was an agreement pursuant to the Proposal authorizing Dunbar to perform, the agreement only encompassed Phase One of the Proposal. ¶14 Dunbar’s Motion to Compel Arbitration and its replies to Rhinosystems’s response are not verified and the factual contentions contained therein are not supported by any sworn testimony contesting statements in Rhinosystems’s affidavit. The only evidence offered by Dunbar to controvert Rhinosystems’s affidavit is contained in various exhibits, none of which, if ultimately authenticated, conclusively establishes Rhinosystems’s acceptance of the arbitration clause contained in the Proposal.

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¶15 Because the existence of an agreement to arbitrate is controverted, the better procedure is for the trial court to conduct an evidentiary hearing. Rogers, at ¶ 17, 138 P.3d at 830. In fact, because Rhinosystems requested an evidentiary hearing on this highly contested fact issue before the June 25, 2008 Order Compelling Arbitration, the trial court was duty-bound under Rule 4(c) of the Rules for District Courts to grant the requested evidentiary hearing. Oklahoma Oncology & Hematology P.C., at ¶ 36, 160 P.3d at 950. We find no difference between a request for an evidentiary hearing made before the trial court rules on the motion to compel arbitration and a request made in a motion to reconsider that ruling, particularly where, as here, Rhinosystems requested a hearing almost a month before the trial court’s Order Compelling Arbitration was filed. Requiring an evidentiary hearing under these circumstances comports with precepts of procedural due process. Id. CONCLUSION ¶16 We find that the trial court erred in refusing to conduct an evidentiary hearing on Dunbar’s Motion to Compel Arbitration and in overruling Rhinosystems’s Motion to Reconsider. Therefore, we reverse and remand this case to the trial court to conduct an evidentiary hearing to resolve the contested issues of fact regarding whether a contract was formed to arbitrate disputes between the parties.10 ¶17 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. WISEMAN, C.J., and FISCHER, P.J., concur. 1. Record, p. 18. 2. R., p. 7. 3. R., p. 35. 4. R., p. 18. 5. R., p. 9. 6. R., p. 34. 7. R., p. 9. 8. A party’s agreement to submit an issue to arbitrators is a prerequisite to the commencement of a valid arbitration. Carter v. Schuster, 2009 OK 94, ¶ 10, __ P.3d __ (citing Voss v. City of Oklahoma City, 1980 OK 148, 618 P.2d 925). In determining whether the parties entered into an agreement to arbitrate, courts must apply state contract law. Rogers, 2005 OK 51, 138 P.3d 826. Arbitration agreements and the interpretation thereof are “governed by ‘general state-law principles of contract interpretation.’” Wilkinson v. Dean Witter Reynolds, Inc., 1997 OK 20, ¶ 9, 933 P.2d 878, 880 (quoting Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475, 109 S.Ct. 1248, 1254 (1989)). The rules of offer and acceptance and of mutual assent control any issue of contract formation. In re De-Annexation of Certain Real Property from City of Seminole, 2009 OK 18, ¶ 8, 204 P.3d 87, 89. An offer, to become a binding contract between the parties, must be accepted. Sims v. United Bridge and Iron, 1965 OK 91, 402 P.2d 911. The consent of the parties to a contract must be (1) free, (2) mutual, and (3) communicated by each to the other. In re De-Annexation of Certain Real Property from City of Seminole, at ¶ 9, 204 P.3d at 89 (citing 15 O.S.2001 § 51). Consent is not mutual unless the parties all agree upon the same thing in the

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same sense. Id. (citing 15 O.S.2001 § 66). Therefore, an acceptance will not bind the offeror unless it is unconditional, identical to the offer, and does not modify, delete or introduce any new terms into the offer. Id. (citing Ollie v. Rainbolt, 1983 OK 79, 669 P.2d 275). 9. R., p. 18. We note that a written proposal need not be signed by both parties to be binding. Although the Oklahoma Uniform Arbitration Act (OUAA) requires that arbitration agreements be contained in a record, and the Federal Arbitration Act (FAA) requires that arbitration agreements be written, neither Act requires arbitration agreements to be signed. Instead, acceptance of an arbitration agreement may be shown by acts, conduct, or acquiescence to the terms of the contract. “In general, Oklahoma follows traditional contract principles in permitting acceptance of an offer by performance . . . .” Hardin v. First Cash Financial Services, Inc., 465 F.3d 470, 476 (10th Cir. 2006) (citing 15 O.S.2001 § 70, and the Restatement (Second) of Contracts § 19 (1981)). “Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal.” 15 O.S.2001 § 70; see, e.g., C. R. Anthony Co. v. Stroud, 1941 OK 193, 114 P.2d 177. “A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it so far as the facts are known, or ought to be known to the person accepting.” 15 O.S.2001 § 75. However, acceptance of the benefits of a proposed contract is not necessarily acceptance of an agreement to arbitrate. Thompson v. Bar-S Foods Co., 2007 OK 75, 175 P.3d 567. Because we remand this case to the trial court to conduct an evidentiary hearing to determine whether there was an agreement to arbitrate, we find it unnecessary to address this issue further. 10. Because this case is remanded for an evidentiary hearing, we need not address any unresolved issues, including whether the arbitration clause in the Proposal would be unenforceable because it is unconscionable.

2010 OK CIV APP 46 ANNETTE M. TRIPLETT, Petitioner, v. MYSTAF MEDICAL; ZURICH AMERICAN INSURANCE CO.; and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 107,277. February 12, 2010 PROCEEDING TO REVIEW AN ORDER OF THE WORKERS’ COMPENSATION COURT HONORABLE MARY BLACK, JUDGE VACATED AND REMANDED John N. MacKenzie, Tulsa, Oklahoma, for Petitioner, Steven K. Bunting, STEVEN K. BUNTING, P.C., Tulsa, Oklahoma, for Respondents. CAROL M. HANSEN, JUDGE: ¶1 This special proceeding to review an order of the Workers’ Compensation trial court denying compensability to Claimant, Annette Triplett, turns on a single issue. We vacate the order and hold Claimant’s injuries arose out of and in the course of her employment with Mystaff Medical. ¶2 Claimant worked in collections for Capital One Auto Finance. Mystaff Medical, a job placement service, had placed Claimant at Capital One where she had worked since October of 2008. On January 27, 2009, Claimant came to work early because the roads were icy and slick from a snow storm. She turned on her

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computer and then went to a designated smoking area, set aside by Capital One. After smoking, she returned to the work place and slipped and fell on a slick floor injuring her back, left knee and left side. She filed a Form A requesting treatment. ¶3 Mystaff answered, claiming it was not responsible for Claimant’s injuries alleging her going for a smoke was a personal errand and thus it was not responsible for workers’ compensation benefits. ¶4 At trial, Claimant testified, as did Mystaff and Capital One supervisors.1 They testified about the events following her fall and her later inquiries. They do not dispute the facts leading up to her fall. The trial court denied her claim and she filed this present proceeding to review that decision. ¶5 Ordinarily, whether an injury arises out of and in the course of a claimant’s employment presents an issue of fact for the trial court. Thomas v. Keith Hensel Optical Labs, 1982 OK 120, 653 P.2d 201. However, rulings by the Workers’ Compensation Court in applying the law to undisputed facts are reviewed de novo by this Court. Urrutia v. Wemdy’s Old fashioned Hamburgers, 2007 OK CIV APP 104, 171 P.3d 915. ¶6 The Supreme Court in Fudge v. University of Oklahoma, 1983 OK 67, 673 P.2d 149, held a worker’s injury was compensable when the worker was injured in crossing a public street in order to reach her car in the employer-provided parking lot. Traffic on that street constituted an employer-created hazard and injury sustained while crossing it in going to or coming from lunch was deemed to arise out of and in the course of her employment. ¶7 Employer cites American Management Systems, Inc. v. Burns, 1995 OK 58, 903 P.2d 288 which held a 1986 amendment to the Workers’ Compensation Act abrogated the positionalrisk test and held no longer may an injury be viewed as compensable solely because the worker, while in the course of employment, was exposed to the risk of harm. However, the Court in Burns did not address an injury sustained on the employer’s premises, nor did it purport to totally negate workers’ compensation case law prior to 1986. Barre v. TCIM Services, Inc., 1998 OK CIV APP 179, 971 P.2d 874. The Court in Barre, citing Fudge, stated generally injuries sustained while going to and coming from work, when occuring on employer’s premises have been deemed to have arisen out 1318

of and in the course of employment. Employment under the Act, does not begin and end with the actual work which the injured person was employed to do, but covers the periods between his entering the employer’s premises a reasonable time before beginning his actual work. “When an employee is injured on his way to work and while on the Employer’s premises the injury suffered does arise out of and in the course of his employment.” Claimant was on Employer’s premises, climbing a stairway to begin her work and the use of the stairway was acquiesced in by Employer. The same is true in the present case. ¶8 The fact Claimant went to a part of Employer’s premise to smoke is immaterial. She had arrived early and was clearly on her way to her workspace when she fell on a slick spot in the building where she worked. ¶9 In Corbett v. Express Personnel, 1997 OK 40, 936 P.2d 932, the Supreme Court held when an employee’s presence in a workplace parking lot is unquestionably employment-related, there is no need for the court further to inquire into the “arising out of” prong as a separate issue. Richbourg v. Advantage Personnel Service, 1999 OK CIV APP 73, 986 P.2d 532. ¶10 In Turner v. B Sew Inn, 2000 OK 97, 18 P.3d 1070, a claimant sought compensation benefits for leg and ankle fractures sustained in a fall as she walked toward her workplace in a shopping center from the parking lot. The Supreme Court held the parking lot constituted employer’s premises for workers’ compensation purposes. An employee who is entering the workplace to begin work may recover workers’ compensation benefits for injuries received in the parking lot. The parking lot constituted employer’s premises. This is the exception to the “going and coming” rule if the injury occurs on premises owned or controlled by the employer. See also, Veith v.Ogburn, 2006 OK CIV APP 75, 136 P.3d 1080. ¶11 The decision in Owings v. Pool Well Service, 1992 OK 159, 843 P.2d 380, cited by Employer, was premised on deciding the correct standard of review for the Court of Civil Appeals in Workers’ Compensation’s reviews. It does not support Employer’s reasoning. Neither does Pauls Valley Travel Center v. Boucher, 2005 OK 30, 112 P.3d 1175 also cited by Employer. The question presented for review there was whether the Court of Civil Appeals failed to apply the proper standard of review when it

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vacated the three-judge panel’s award for medical treatment and compensation. The narrow issue was whether the trial tribunal’s order — that claimant’s injury was not idiopathic, but compensable because it arose out of her employment — was supported by competent evidence. ¶12 The sole decision cited by Employer that appears to support its view is Ogg v. Bill White Chevrolet, 1986 OK 26, 720 P.2d 324. There, the Supreme Court vacated a Court of Civil Appeals decision holding an injury received on the work premises by an employee while obtaining tobacco, which his employer allowed him to use, arose in the course of his employment and is not a personal deviation preventing coverage of the act. The Court disagreed and vacated the Court of Civil Appeals’s opinion holding not all personal injuries occurring on the workplace premises are covered under the Act. ¶13 Decisions by our appellate courts are varied, but all depend on the circumstances of each case. Here, Claimant had come to work early and turned on her computer. She left to visit a place designated by her employer as a smoking area. When she returned to start her day of employment, she slipped in the entryway to her office. We consider the entry way as equivalent to the parking lot addressed in prior decisions and hold her injuries are compensable. ¶14 The order of the Workers’ Compensation Court is vacated and the case is remanded to that court for further review of her injuries and compensation.

OKLAHOMA WORKERS COMPENSATION COURT, Respondents/ Appellees. Case No. 106,678. April 8, 2010 PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT HONORABLE H. THOMAS LEONARD, TRIAL JUDGE SUSTAINED Daniel J. Talbot, HALLEY & TALBOT, Oklahoma City, Oklahoma, for Petitioner/Appellant Timothy E. Lurtz, COLLINS, ZORN & WAGNER, Oklahoma City, Oklahoma, for Respondents/Appellees Woodward County EMS and Compsource Oklahoma DEBORAH B. BARNES, PRESIDING JUDGE: ¶1 Edith Jane Wilcoxson (Claimant) seeks review of an order of a three-judge panel of the Workers’ Compensation Court, filed on December 10, 2008, affirming in part and modifying in part the trial court’s order, which awarded Claimant eight weeks of temporary total disability (TTD) benefits for a neck injury she sustained while employed by Woodward County EMS (Employer). Based on our review of the record and applicable law, we sustain the three-judge panel’s order. FACTS AND PROCEDURAL BACKGROUND

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¶2 On May 17, 2006, while working as a medic for Employer, Claimant sustained injuries when she transferred a “morbidly obese patient from gurney to bed.”1 Claimant received medical therapies and treatment for her lower back for several months, but ultimately underwent surgery on May 5, 20072 on her lumbar spine. Michael Wright, M.D. (Dr. Wright) stated in his report, dated November 21, 2007, that Claimant reached maximum medical improvement from “surgical intervention and postoperative rehabilitation” as to her lumbar spine on November 21, 2007.3 On December 27, 2007, Claimant filed her Form 3, alleging she sustained a work-related injury to her low back, both hips, right leg, right foot, and whole body, with an anatomic abnormality.

EDITH JANE WILCOXSON, Petitioner/ Appellant, v. WOODWARD COUNTY EMS, COMPSOURCE OKLAHOMA and THE

¶3 On July 17, 2008, Claimant filed an amended Form 3, adding a claim for a neck injury. The medical evidence of record as to Claimant’s

VACATED AND REMANDED HETHERINGTON, J., concurs. BUETTNER, Presiding Judge, dissenting: I would sustain the Workers’ Compensation Court order as supported by competent evidence. Also see my dissenting opinion in Richbourg v. Advantage Personnel Services, 1999 OK CIV APP 73, 986 P.2d 532, 534. 1. Although their testimony reveals Claimant was somewhat uncooperative. This does not negate the argument her injuries resulted out of and in the course of her employment.

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neck includes written reports by several physicians. For example, according to the April 9, 2008, written report4 of Claimant’s physician, J. Arden Blough, M.D. (Dr. Blough), Claimant had “increasing pain in her back and pain in her neck” after her work-related injury on May 17, 2006. Dr. Blough further stated that her low back and neck symptoms continued to worsen “over the following months.” On March 8, 2007, she was referred for an MRI of her neck (cervical spine), which indicated “disc bulges.” Her neck pain, according to Dr. Blough, continues and her range of motion is “restricted in all planes.” Dr. Blough’s opinion, contrary to the opinion of Dr. Wright,5 is that Claimant is and has been temporarily totally disabled since May 17, 2006, and will remain so for an “undetermined amount of time pending further medical evaluation and treatment” of her cervical and lumbar spine.6 ¶4 Employer’s expert, John A. Munneke, M.D., D.D.S., made findings to the contrary. As stated in his July 23, 2008, written report, Claimant “at this time exhibits no objective evidence of disability or impairment to her cervical spine as a result of her accident . . . .”7 ¶5 The trial court held a hearing on September 9, 2008, on the issue of TTD only. For the first time, Employer raised the defense of statute of limitations, contending more than two years had elapsed between the neck injury and the filing of a claim for the neck injury, and thus a claim for benefits for a neck injury was untimely. The trial court entered an order, filed on September 15, 2008, denying Employer’s statute of limitations defense and finding that Claimant had sustained an accidental personal injury, arising out of and in the course of her employment, to her lumbar back and neck, and that the neck injury entitled her to a maximum of eight weeks of TTD benefits.8 The issue of permanent partial disability benefits was reserved for a future hearing, and there is no evidence in the record9 indicating that Claimant had surgery on her neck or that any physician recommended neck surgery. ¶6 Both parties filed a Request for Review on September 25, 2008, seeking review of the trial court’s order by a three-judge panel. Claimant asserted the statute of limitation defense was not only tolled, but waived as never raised or pled prior to the date of trial, and that the eight-week TTD award was erroneous. Employer asserted its statute of limitation defense was valid, that Claimant suffered no job-related 1320

injury to her neck, and that Claimant should not be awarded any TTD benefits or medical treatment for her neck. ¶7 In an order filed on December 10, 2008, a three-judge panel modified in part and affirmed in part the trial court’s order. It found that Employer “failed to plead the Statute of Limitations defense prior to trial and the defense is waived.”10 The three-judge panel also found that Claimant’s amended Form 3, adding the neck, was timely filed. The rest of the trial court’s order — including the eight-week TTD benefit award — was affirmed. ¶8 Claimant seeks this Court’s review, alleging the three-judge panel erroneously affirmed the trial court’s award of only eight weeks of TTD benefits. We sustain. STANDARD OF REVIEW ¶9 When this Court examines a Workers’ Compensation Court’s factual findings, we apply the any competent evidence standard of review. Sneed v. McDonnell Douglas, 1999 OK 84, 991 P.2d 1001 (citing Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548). Under the any competent evidence standard, this Court must simply “canvass the facts, not with an object of weighing conflicting proof to determine where the preponderance lies, but only for the purpose of ascertaining whether those facts support the tribunal’s decision.” Oklahoma Gas & Electric Co. v. Black, 1995 OK 38, ¶ 6, 894 P.2d 1105, 1107 (citation omitted). “Record proof, on the basis of which the trier could have reached a contrary conclusion, has no legal impact upon the review process by which a workers’ compensation court’s finding is tested. It is only the absence of competent evidence that makes a tribunal’s decision erroneous (as a matter of law) and hence amenable to appellate vacation.” Pauls Valley Travel Center v. Boucher, 2005 OK 30, ¶ 6, 112 P.3d 1175, 1179-1180 (footnotes omitted). Huffman v. General Motors Corp., 1991 OK CIV APP 17, ¶ 6, 811 P.2d 106, 108, citing Parks, notes that the trial judge’s decision, once altered by the threejudge panel’s reexamination, loses its viability and stands replaced by the decision which altered it. The three-judge panel’s decision then becomes the order in the case and the only one subject to review by this Court. ¶10 Questions of law are reviewed de novo by this Court. American Airlines v. Hervey, 2001 OK 74, ¶ 11, 33 P.3d 47, 50. Under this standard, we have plenary, independent and non-deferential

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authority to determine whether the lower court erred in its legal rulings. Id. ANALYSIS I. Application of 85 O.S. Supp. 2005 § 22(3)(d) ¶11 Claimant argues that her injury is not subject to the eight-week “nonsurgical soft tissue injury” limitation found in 85 O.S.2001 and Supp. 2005 § 22(3)(d),11 and, therefore, limiting her TTD benefits to eight weeks was contrary to law. We disagree. ¶12 The three-judge panel affirmed the trial court’s award of eight weeks of TTD for injury to Claimant’s neck. The record reveals that Claimant’s neck injury occurred to her cervical spine and, specifically, to the spinal disks in her cervical spine.12 Section 22(3)(d) states that “’[s]oft tissue injury’ does not include any of the following: (1) Injury to or disease of the spine, spinal disks, spinal nerves or spinal cord, where corrective surgery is performed . . . .” (Emphasis added.) In other words, the legislature specifically excluded from the definition of soft tissue injury injuries to the spinal disks where corrective surgery is performed. “[T]he Legislature will not be presumed to have done a vain and useless act in the promulgation of a statute, nor will an inept or incorrect choice of words be applied or construed in a manner to defeat the real or obvious purpose of a legislative enactment.” Wylie v. Chesser, 2007 OK 81, ¶ 19, 173 P.3d 64, 71 (quoting TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15). Therefore, the obvious import of this exclusionary language is that the legislature intended to include within the definition of soft tissue injury those injuries to the spinal disks where corrective surgery is not performed.13 Therefore, because corrective surgery was not performed to Claimant’s neck,14 the injury is included within the definition of a soft tissue injury. ¶13 In Bed Bath & Beyond v. Bonat, 2008 OK 47, ¶ 12, 186 P.3d 952, 955, the Oklahoma Supreme Court stated in relevant part: “Section 22(3)(d) limits benefits to eight weeks for nonsurgical soft tissue injuries.” Therefore, the eight-week TTD award was properly made pursuant to the nonsurgical soft tissue injury limitation set forth in § 22(3)(d) and Bed Bath & Beyond v. Bonat. II. Specificity ¶14 Claimant next argues that because the three-judge panel awarded eight weeks of TTD Vol. 81 — No. 15 — 5/29/2010

benefits without stating whether the award was being made pursuant to the soft tissue injury limitation under § 22(3)(d), the threejudge panel’s order lacks the specificity required by 85 O.S. Supp. 2005 § 26(B).15 ¶15 Where the findings of fact and conclusions of law are too indefinite and uncertain for judicial interpretation, this Court, on appeal, will vacate the order for further proceedings. Dunkin v. Instaff Personnel, 2007 OK 51, ¶ 14, 164 P.3d 1057, 1061. However, “[m]eaningful review is facilitated” by an order of the Workers’ Compensation Court where “the specific basis for its decision . . . can be determined.” Dunkin, at ¶ 15, 164 P.3d at 1061. The order must be certain enough to (1) identify the legal theory relied upon and (2) be sufficiently specific to enable the reviewing court to ascertain the facts on which the order is based. Id. ¶16 As detailed in the preceding section, the order is sufficiently specific for this Court to ascertain the facts on which it is based — i.e., that Claimant’s neck injury is a nonsurgical soft tissue injury to her cervical spinal disks. Furthermore, the legal theory relied upon by the court below is readily identifiable: the court below awarded Claimant exactly eight weeks of TTD for her neck injury. Only § 22(3)(d) applies to TTD awards for nonsurgical soft tissue injuries, and it limits the TTD award for these injuries to eight weeks. Bed Bath & Beyond v. Bonat, 2008 OK 47, 186 P.3d 952. We find the specific basis of the award can be readily determined and, therefore, that meaningful review is facilitated by the order. We find the order does not lack the specificity required by 85 O.S. Supp. 2005 § 26(B). III. Competent Evidence ¶17 Claimant argues the eight-week TTD award should be vacated as not supported by competent evidence. We disagree. ¶18 The competent evidence available in the record on the issue of TTD is as follows: first, Employer’s experts, Drs. Wright and Munneke, made findings that Claimant had no evidence of disability or impairment to her cervical spine as a result of her job-related injury. However, in finding that Claimant was temporarily totally disabled, the court below obviously rejected these findings. Second, Dr. Blough’s opinion is that Claimant is and has been temporarily totally disabled since May 17, 2006, and will remain so for an “undetermined amount of time pending further medical evalu-

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ation and treatment” of her cervical and lumbar spine. ¶19 The award of eight weeks of TTD is supported by Dr. Blough’s opinion. Although it does not exactly correspond to his opinion regarding the length of TTD, the court below, as stated above, was limited by the eight-week limitation set forth in § 22(3)(d) and Bed Bath & Beyond v. Bonat. CONCLUSION ¶20 For the reasons set forth, we sustain the order of the three-judge panel. ¶21 SUSTAINED. WISEMAN, C.J., concurs, and GOODMAN, J., dissents. GOODMAN, J., dissenting: ¶1 I dissent for the reasons set forth in Public Supply Co. v. Steenbock, 2008 OK CIV APP 53, 186 P.3d 263. 1. Record (R.), p. 3. At the September 9, 2008, hearing, Claimant stated that she and another Woodward County EMS employee were delivering a patient, who weighed about 400 pounds, to a nursing home. When they arrived at the patient’s room (with the patient on a gurney), a nursing home resident in a room next door “quit breathing.” The other employee left and went next door, and Claimant, all on her own, moved the 400-pound patient from the gurney to a bed using a “sheet lift.” Claimant asserted she immediately had a sharp pain in her lower back which worsened over time. Transcript (Tr.), pp. 7-8. 2. R., p. 18. 3. R., p. 93. 4. R., pp. 17-21. 5. R., pp. 92-93, report of Michael Wright, M.D., dated November 21, 2007. 6. R., p. 20. 7. R., p. 80. 8. Paragraph 5 of the order states “THAT as a result of said injury, claimant is entitled to compensation for a maximum of 8 [sic] for injury to the NECK in the total amount of $3,003.84.” In accord with both parties, we interpret this paragraph to mean the trial court awarded Claimant “a maximum of 8 [weeks]” of TTD benefits. 9. Claimant’s counsel argues that “[t]his case is not a ‘soft tissue injury’ case as defined in Title 85 O.S. Section 22(3)(d) as corrective surgery to the neck, in the form of an epidural steroid injection was recommended.” Claimant’s Brief-in-chief, p. 3. Similarly, Claimant’s counsel stated at the hearing that “[t]here’s been a recommendation of epidural steroid injections, which would be considered surgery.” Tr., p. 31. We disagree with Claimant that an epidural steroid injection is a surgical procedure. An injection — “[t]he introduction of a medicinal substance . . . into a part of the body . . . by a needle and syringe or by a syringe” — is not a surgery — a treatment involving “manual adjustment (as the setting of a broken bone), the use of mechanical appliances (as braces), or operative procedures (as the cutting into the body).” J. E. Schmidt, M.D., ATTORNEYS’ DICTIONARY OF MEDICINE AND WORD FINDER (1991). See also Lumbar Epidural Steriod Injections for Low Back Pain and Sciatica by Richard Staehler, M.D., at www.spine-health.com (epidural steroid injections are “an integral part of the non-surgical management of sciatica and low back pain.”). Therefore, a recommendation of an epidural steroid injection is not a recommendation of surgery. 10. R., p. 114. 11. A “soft tissue injury” and the eight-week limitation of temporary total disability benefits for a nonsurgical soft tissue injury are set forth in 85 O.S. Supp. 2005 § 22(3)(d) as follows, in pertinent part: Soft Tissue Injury: In case of a nonsurgical soft tissue injury, temporary total compensation shall not exceed eight (8) weeks. A claimant who has been recommended by a treating physician for surgery for a

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soft tissue injury may petition the Court for one extension of temporary total compensation and the court may order such an extension, not to exceed sixteen (16) additional weeks, if the treating physician indicates that such an extension is appropriate or as agreed to by all parties. In the event the surgery is not performed, the benefits for the extension period shall be terminated. For purposes of this section, “soft tissue injury” means damage to one or more of the tissues that surround bones and joints. “Soft tissue injury” includes, but is not limited to: sprains, strains, contusions, tendonitis, and muscle tears. Cumulative trauma is to be considered a soft tissue injury. “Soft tissue injury” does not include any of the following: (1) Injury to or disease of the spine, spinal disks, spinal nerves or spinal cord, where corrective surgery is performed; .... In all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 of this section, unless there is objective medical evidence of a permanent anatomical abnormality. . . . 12. Claimant was referred for an MRI scan of the cervical spine in March 2007. She was also referred for multiple MRI scans of the lumbar spine. According to the report on Claimant’s medical history provided by Dr. Blough, these MRIs reveal that Claimant’s injuries occurred to her spinal disks, i.e., between the specific vertebrae in the cervical and lumbar regions of the spine — in C3-4, C4-5, C5-6, C6-7, and L2-3, L4-5, L5-S1. See R., p. 18. In the “Assessment” section of Dr. Blough’s report, he states in relevant part that Claimant has “[a]cute traumatic injury to the cervical spine resulting in radiculopathy due to anatomical abnormalities from disc bulges at C3-4, C4-5, C5-6, and C67.” R., p. 20. 13. Otherwise, the Legislature would have performed a vain and useless act by excluding from the definition of soft tissue injury a subset (spinal injuries where surgery is performed) of an already excluded set (spinal injuries). 14. Although surgery was performed on Claimant’s lumbar spine after the injury, no surgery was performed on Claimant’s cervical spine (or neck). The court below awarded TTD only for Claimant’s neck injury. 15. Section 26(B) states, in part: The Court . . . shall make or deny an award determining such claim for compensation . . . together with the statement of its conclusion[s] of fact and rulings of law.

2010 OK CIV APP 41 IN THE MATTER OF CHILDREN M.B., Jr. and M.B.: AMY BURNSIDE, Natural Mother, Appellant, vs. STATE OF OKLAHOMA, Appellee. Case No. 107,618. March 12, 2010 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY, OKLAHOMA HONORABLE SHEILA KIRK, JUDGE VACATED AND REMANDED WITH INSTRUCTIONS Russ Braden Haskins, Shawnee, Oklahoma, for Appellant, Leann Paczkowski, Assistant District Attorney, Shawnee, Oklahoma, for Appellee, Traci L. Soderstrom, LAW OFFICE OF TRACI L. SODERSTROM, P.C., Midwest City, Oklahoma, for Minor Children. ROBERT DICK BELL, VICE-CHIEF JUDGE: ¶1 Appellant, Amy Burnside (Mother), appeals an order of the trial court terminating her parental rights to her two children, M.B.,

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Jr., born June 24, 1993, and M.B., born February 25, 1992. Mother was the non-custodial parent of the children and lived in Coshocton, Ohio. The parental rights of the natural father and custodial parent, Michael Burnside, Sr. (Father), were also terminated. Father does not appeal the termination of his parental rights. The clear and convincing evidence supports the trial court’s determination that Mother failed to correct the conditions which led to the deprived child adjudication within the statutory time frame and the children’s best interests would be served by terminating Mother’s parental rights. However, the trial court’s order lacks the requisite citation to the statutory authority for the termination and a finding that the termination is in the children’s best interests. Accordingly, the order is vacated and remanded to the trial court with instructions to correct the deficiencies described herein. ¶2 On April 4, 2007, the State of Oklahoma (State) filed a petition alleging the children were deprived because they were not receiving proper parental care and guardianship. State specifically alleged Father physically abused M.B., Jr., and exposed both children to substance abuse. Mother and Father stipulated to the deprived petition. The court entered an order adjudicating the children to be deprived due to abuse or neglect and the children were made wards of the court. This was the second time the children were made wards of the court; they had been placed in foster care in 2003. An individualized service plan (ISP) was implemented by the trial court. The ISP required Mother to maintain a legal verifiable source of income and appropriate housing for her children. She was ordered to complete a substance abuse assessment and attend a domestic violence inventory. Mother was also directed to enroll in parenting classes, to build and maintain relationships with her children in Oklahoma and to pay a minimum amount of child support. ¶3 On April 9, 2009, the children filed a petition to terminate Mother’s parental rights. State joined in the petition. The petition sought to terminate Mother’s parental rights pursuant to 10 O.S. 2001 §7006-1.1(A)(2)1 for abandonment; §7006-1.1(A)(5) for failure to correct the conditions which led to the deprived child adjudication after being permitted a period of time not less than three months to do so; and §7006-1.1(A)(7) because Mother willfully failed, refused or neglected to contribute to the chilVol. 81 — No. 15 — 5/29/2010

dren’s support according to her financial ability for a period of twelve months out of the last fourteen months immediately preceding the filing of the motion. The petition further alleged Mother’s parental rights should be terminated pursuant to §7006-1.1(A)(13) due to Mother’s mental illness or mental deficiency which renders her incapable of adequately and appropriately exercising her parental rights; and §70061.1(A)(15) because the children have been in foster care for fifteen of the twenty-two months preceding the filing of the termination petition. The petition also alleged the children’s best interests would be served by terminating Mother’s parental rights. Mother waived her right to a jury trial. ¶4 At the non-jury trial, a DHS permanency planning case worker, the children’s foster mother, and the children, M.B. and M.B. Jr., testified on the children’s behalf. Mother appeared and testified at trial. After considering the evidence, the trial court entered an order terminating Mother’s parental rights. The succinct order found Mother completed certain tasks required in the dispositional order, but she failed to correct the conditions which led to the adjudication after being allowed well in excess of ninety days to do so. The trial court’s order did not cite any statutory authority for the termination nor did it state that it was in the children’s best interests to terminate Mother’s parental rights. Mother now appeals from that order. This Court’s standard of review upon the appeal of a judgment terminating parental rights is to determine whether the trial court’s findings are supported by clear and convincing evidence. In re S.B.C., 2002 OK 83, ¶7, 64 P.3d 1080, 1083. ¶5 Mother contends the trial court erred in relying on Mother’s non-compliance with the treatment plan as the basis to terminate her parental rights because the treatment plan was not reasonably designed to correct the conditions that led to the deprived children adjudication (i.e. Father’s abuse and drug use). Initially, we reject Mother’s assertion that the treatment plan was not designed to correct the condition of the deprived children adjudication as to Mother. The treatment plan’s requisites that Mother secure appropriate housing and a verifiable income and that she maintain a positive relationship with the children were integral components of Mother’s deficiencies in the deprived children adjudication.

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¶6 In any event, the clear and convincing evidence demonstrated Mother failed to secure a legally verifiable source of income even though she was given ample time to do so. Mother testified her income was comprised of general assistance in the amount of $115.00 per month, food stamps and a student loan for an on-line degree. Mother claimed she could support her two teenage children with the student loan proceeds, but she was unable to verify or confirm the amount of the student loan, the amount needed for tuition and books or the repayment terms. Mother testified she last held a full-time job in 2001. She claimed she was unable to work because she sustained an injury to her ankle last year and she suffers from bipolar disorder and asthma.

to be placed with or to visit Mother in Ohio. The children have not lived with Mother for over ten (10) years and neither desired a relationship with Mother. The children testified they desire to remain in their current placement because they are involved in school activities, they have made friends at school and they desire to graduate from Harrah High School. They also expressed their need for permanency to pursue their future goals for higher education and careers in Oklahoma. It is clear from the evidence the children’s need for permanency and stability are paramount concerns for their emotional and physical well-being. Based on the foregoing, we find it would be in the children’s best interest to terminate Mother’s parental rights.

¶7 The evidence also showed Mother failed to secure the means to provide the children with appropriate housing. Since the inception of the deprived children proceeding, Mother has lived in the same state assistance two-bedroom apartment. She shares the apartment with her boyfriend and receives a $43.00 subsidy for utilities. The evidence also supported the finding that Mother was unwilling to take the necessary steps to establish and build a relationship with the children or to support the children. Mother testified she would not consider relocating to Oklahoma to get to know her kids because she had an established household and doctors in Ohio. Mother stated she did not exercise face-to-face visitation with the children from 2000-2002. In 2003, she claimed she had one day of face-to-face visitation. She admitted to having little visitation with the children from 2005-2007. During 2008 and 2009, Mother only had face-to-face contact with the children in the courtroom.

¶10 Mother next contends the trial court’s order is defective because it failed to make a finding of the conditions she failed to correct, a recitation to the specific statutory basis for the termination, and a finding that the termination was in the best interests of the children. We reject Mother’s claim that the trial court’s order must precisely detail each of the conditions that was not corrected. No Oklahoma Supreme Court case mandates such detail. In any event, Mother was provided with sufficient notice of the specific conditions that she was required to correct in the court approved ISP. We hold the ISP constituted sufficient notice of the conditions that required correcting to satisfy due process. But see Matter of B.M.O., 1992 OK CIV APP 89, 838 P.2d 38.

¶8 Mother stated she frequently sent the children holiday and birthday greeting cards and that she called the children when she had a phone. The children contradicted Mother’s assertion that she frequently communicated with them. Mother conceded she did not know the names of the children’s best friends. After reviewing the record, we find the clear and convincing evidence demonstrated that Mother failed to correct the conditions which led to the deprived children adjudication within the statutory time frame. ¶9 The clear and convincing evidence also demonstrated the children’s best interests would be served by terminating Mother’s parental rights. The children expressly refused 1324

¶11 We do find merit to Mother’s argument that the trial court’s order is deficient because it failed to find the termination was in the children’s best interests. Bingham v. Bingham, 1981 OK CIV APP 26, ¶13, 629 P.2d 1297, 1300. However, because clear and convincing evidence supports the trial court’s determination to terminate Mother’s parental rights, we vacate the trial court’s order and remand this matter to the trial court for the sole purpose of securing a proper order. On remand, the trial court is instructed to enter an order correcting these deficiencies and terminating Mother’s parental rights. ¶12 VACATED AND REMANDED WITH INSTRUCTIONS. JOPLIN, P.J., and MITCHELL, J., concur. 1. Effective May 21, 2009, 10 O.S. 2001 §7006-1.1 was re-codified and renumbered as 10A O.S. Supp. 2009 §1-4-904.

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2010 OK CIV APP 45 POTEAU VALLEY IMPROVEMENT AUTHORITY, Appellant, v. OKLAHOMA PUBLIC EMPLOYEES RETIREMENT SYSTEM, Appellee. Case No. 105,915. March 25, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE VICKI L. ROBERTSON, JUDGE AFFIRMED Dean E. Warren, Ranada D. Adams, Poteau, Oklahoma, and Richard Mildren, Oklahoma City, Oklahoma, for Appellant, Joseph A. Fox, Oklahoma City, Oklahoma, for Appellee. Larry Joplin, Presiding Judge: ¶1 Appellant, Poteau Valley Improvement Authority (PVIA), seeks review of the trial court order affirming a decision of the Oklahoma Public Employees Retirement System (OPERS) Board of Trustees to charge PVIA for unremitted retirement benefits of an employee. PVIA complains the trial court and OPERS erred as a matter of both fact and law. ¶2 Jeffery Goble, the PVIA employee, had been employed with PVIA since PVIA entered the OPERS retirement system in 1993. However, on the advice of an OPERS representative, Goble was not included in the PVIA/OPERS retirement because he was also a volunteer fireman. PVIA and Goble were told by the OPERS representative that Goble could not participate in two different state funded retirement systems and Goble opted to continue his retirement in the firefighters’ system.1 As a result, for over thirteen years neither Goble nor PVIA made OPERS retirement contribution payments on Goble’s behalf. ¶3 Contrary to the earlier OPERS advice, the Oklahoma Legislature specifically provided for wider retirement eligibility for volunteer firefighters in 74 O.S. Supp 2005 §902(13)(b), a provision which existed largely in its present form in 1993, when PVIA joined OPERS.2 The OPERS representative, PVIA and Goble were apparently unaware of the volunteer firefighters provision in §902. ¶4 In January 2007, the Oklahoma Public Employees Retirement System sent an invoice Vol. 81 — No. 15 — 5/29/2010

to the Poteau Valley Improvement Authority (PVIA) in the amount of $57,324.29, demanding payment be made to OPERS by March 30, 2007 for the unpaid participating service of Goble. The January 2007 invoice to PVIA included both PVIA’s employer share of unpaid contributions, as well as Goble’s employee share. ¶5 PVIA consequently sought relief before the OPERS Board of Trustees, which conducted a hearing on June 13, 2007. The Board issued a decision on July 27, 2007, denying PVIA’s request to forego payment of the $57,324.29. PVIA appealed the decision to the Oklahoma County District Court, which affirmed the Board’s decision. It is from the district court’s order that PVIA brought this appeal. ¶6 The Oklahoma Administrative Procedures Act governs the appeal from a decision of the OPERS Board of Trustees. Stipe v. State, ex rel. Bd. Tr. of Oklahoma Public Employees Retirement Sys., 2008 OK 52, ¶¶4-6, 188 P.3d 120. An appellate court cannot substitute its judgment for that of the agency on the agency’s factual determinations. Oklahoma Dep’t of Public Safety v. McCrady, 2007 OK 39, ¶10, 176 P.3d 1194. However, if the appellate court determines the substantial rights of the petitioner have been prejudiced, due to an error in applying the law, the appellate court “may set aside or modify the order, or reverse it and remand it to the agency for further proceedings.” Stipe, 188 P.3d at 122. Where the facts are not in dispute and the appellate court is left to consider only a question of law, the appellate court reviews the appealed from decision by a de novo standard. Stipe, 188 P.3d at 122 (citing State ex rel. Porter v. Ferrell, 1998 OK 41, 959 P.2d 576, 577). ¶7 The OPERS Board made extensive findings of fact in its July 2007 order and the record below reveals no material issue of fact presented in this appeal. The OPERS Board found Goble’s participation in OPERS was mandatory, so that Goble could not have rightfully declined OPERS membership in 1993. 74 O.S. 2001, §925.3 The Board also found §902 permitted Goble to participate in two retirement programs, so that the mandatory provisions of §925 applied to Goble, as it did to all other PVIA employees. ¶8 PVIA first claims that OPERS is estopped from pursuing payment for Goble’s retirement, because it was PVIA’s reliance on the misinformation provided by the OPERS representative

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that caused Goble’s exclusion from the OPERS system. Equitable estoppel generally prevents one party from taking a position inconsistent with an earlier action that places the relying party at a disadvantage. Strong v. State, ex rel. Oklahoma Police Pension and Retirement Board, 2005 OK 45, ¶9, 115 P.3d 889, 893-94. Although the doctrine of equitable estoppel does not generally operate against public entities, such as OPERS, there are some exceptions and PVIA claims such an exception applies in this case, asserting OPERS demand is against public policy. Strong v. State, ex rel. Oklahoma Police Pension and Retirement Board, 2005 OK 45, ¶9, 115 P.3d 889, 893-94; Burdick v. Indep. School Dist. No. 52 of Oklahoma County, 1985 OK 49, 702 P.2d 48, 53. PVIA claims the violation of public policy in this case stems from making PVIA pay for a mistake not of its own making. ¶9 However, the governmental shield against estoppel is formidable. A “stronger, more compelling policy or interest must be advanced before estoppel may be invoked against either the state or a public agency.” Strong, 115 P.3d at 894. While PVIA’s assertion that its reasonable reliance on OPERS’ misrepresentations and mistake is compelling, something the OPERS Board indicated in its order, it is not such an offense to public policy that it reaches the stronger, more compelling policy or interest that must exist in order to claim estoppel against a public entity. ¶10 PVIA’s argument loses much of its strength in light of the existence of §902 and its specific provisions addressing dual retirement for the volunteer firefighter. A public official, such as the OPERS representative who made the misstatements, is not empowered to bind his agency to those misstatements and this is especially true when the official cites information directly contra to an existing law. Strong, 115 P.3d at 893. The public official was bound by the law and his ignorance of it did not absolve PVIA of having to follow the law. Id. “Persons dealing with public officials are charged with notice of the limitations on [that public official’s] power[;]” this includes PVIA and its dealings with OPERS. Id. at 894. “Generally, estoppel is not imposed merely where a party is given incorrect information or a mistake occurs.” Id. PVIA has failed to demonstrate how the misinformation given by the OPERS representative differs from the example provided in Strong, which would warrant a 1326

result that departs from the general rule that estoppel does not apply to public entities. ¶11 Section 917(7) of title 74 provides: When any error in calculation or participation coverage to a prior or current employee exists, it shall be the responsibility of the participating employer which made the error to pay the amount determined by the Board pursuant to Section 913.5 of this title. This obligation of the participating employer to pay the amount due pursuant to this section shall be considered a current obligation of the employer until the amount is paid in full, regardless of the dates of the periods of service. It is clear that PVIA made a mistake in Goble’s participation coverage, albeit relying on incorrect information provided by OPERS. However, §917(7) does not offer any reprieve from the penalty for the employer who acts reasonably on the misinformation of others. The statute provides only the mistake of not contributing what should have been contributed and the obligation to pay upon discovery of the mistake. The Legislature’s approach makes clear that it is the employer who must bear the costs of the mistake, regardless of the circumstances under which it occurred and thus PVIA cannot assert estoppel against OPERS in this case, even though OPERS’ misinformation precipitated PVIA’s mistaken non-payment of retirement contributions for Goble. ¶12 PVIA also challenges the decision to assess the employee portion of the retirement contribution in addition to the unpaid employer contribution. Consideration of this issue is aided by an understanding of the development of §917(7), amended in 1992 and 1993.4 When any error in calculation or participation coverage to a prior or current employee exists, it shall be the responsibility to the participating employer which made the error to pay the contribution and any interest charges or other costs levied against the employee. 74 O.S. Supp. 1992 §917(7) (emphasis added). The statute was amended in 1993 to read: (7) When any error in calculation or participation coverage to a prior or current employee exists, it shall be the responsibility of the participating employer which made the

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error to pay the amount determined by the Board pursuant to Section 913.5 of this title. 74 O.S. Supp. 1993 §917(7) (emphasis added).5 ¶13 From its enactment in 1985, until its 1993 amendment, 74 O.S. §917(7) required the employer to exclusively bear the costs of a calculation or participation coverage error, providing “it shall be the responsibility to the participating employer which made the error to pay the contribution and any interest charges or other costs levied against the employee.” And while the language changed in 1993 to include a reference to §913.5 and the implementation of the actuarial cost valuation method for calculating the payment needed to correct an error of non-payment, there is nothing in the 1993 amendment which relieved the employer of its exclusive obligation to bear the costs of a §917(7) contribution or calculation error. The 1993 amendments of §§917(7) and 913.5, which moved away from simple reimbursement of the unpaid contribution, was more finely tuned to provide an actuarial cost accounting that was intended to better fund the retirement benefit itself. See, Question Submitted by Administrator of Oklahoma Workers’ Compensation Court, 1995 OK AG 94, ¶¶11-15. However, the new accounting did not change the exclusive obligation of the employer that had existed under the previous statute. While §913.5 has been amended since 1993, adding subsections B and C, neither §917(7) nor §913.5 has been amended to remove the employer’s exclusive obligation. ¶14 A statutory amendment is designed to do one of two things: (1) effect change in an existing law or (2) clarify a statute. Magnolia Pipe Line Co. v. Oklahoma Tax Comm’n, 167 P.2d at 888. Section 917(7) was amended to effect a change and implement a different accounting procedure, but the amendment did not change the source of the obligation; if the employer makes a calculation or participation error, the employer alone bears the costs of that mistake, just as the employer has since 1985. Title 74 makes no alternative provisions. ¶15 Therefore, despite PVIA’s reliance on information provided by the organization now demanding payment, OPERS, and the fact that Goble made no employee contributions toward his own PVIA retirement for over thirteen years, the statute provides that PVIA is exclusively responsible for rectifying this participation and contribution error. While PVIA has complained of unfairness and OPERS has Vol. 81 — No. 15 — 5/29/2010

acknowledged PVIA’s compelling position, it is not the function of this court to determine whether the statute is the most fair method of correcting contribution errors. Fent v. Oklahoma Capitol Improvement Auth., 1999 OK 64, 984 P.2d 200, 204.6 The law demands the employer bear the costs of this mistake and no provisions exist to permit a shifting of this obligation. ¶16 The order of the trial court is AFFIRMED. BELL, V.C.J. and MITCHELL, J., concur. 1. Goble retired as a volunteer firefighter in October 2003 and the record reflects his monthly retirement benefit from the Oklahoma Firefighter’s Pension Retirement System is $144.50. 2. 74 O.S. Supp. 2005 §(13)(b): A class or several classes of employees who are covered by Social Security and are not covered by or eligible for and will not become eligible for another retirement plan authorized under the laws of this state, which is in operation on the effective date, and when the qualifications for employment in such class or classes are set by state law; and when such class or classes of employees are employed by a county or municipal government pursuant to such qualifications; and when the services provided by such employees are of such nature that they qualify for matching by or contributions from state or federal funds administered by an agency of state government which qualifies as a participating employer, then the agency of state government administering the state or federal funds shall be deemed an eligible employer, but only with respect to that class or those classes of employees as defined in this subsection; provided, that the required contributions to the retirement plan may be withheld from the contributions of state or federal funds administered by the state agency and transmitted to the System on the same basis as the employee and employer contributions are transmitted for the direct employees of the state agency. The retirement or eligibility for retirement under the provisions of law providing pensions for service as a volunteer fire fighter shall not render any person ineligible for participation in the benefits provided for in Section 901 et seq. of this title. An employee of any public or private trust in which a county, city or town participates and is the primary beneficiary shall be deemed to be an eligible employee for the purpose of this act only. (emphasis added). Section 902(14)(b), as it existed in July 1992: (b) A class or several classes of employees who are covered by Social Security and are not covered by or eligible for and will not become eligible for another retirement plan authorized under the laws of this state, which is in operation on the effective date, and when the qualifications for employment in such class or classes are set by state law; and when such class or classes of employees are employed by county or municipal government pursuant to such qualifications; and when the services provided by such employees are of such nature that they qualify for matching by or contributions from state or federal funds administered by an agency of state government which qualifies as a participating employer, then the agency of state government administering the state or federal funds shall be deemed an eligible employer, but only with respect to that class or those classes of employees as defined in this subsection; provided, that the required contributions to the retirement plan may be withheld from the contributions of state or federal funds administered by the state agency and transmitted to the System on the same basis as the employee and employer contributions are transmitted for the direct employees of the state agency. The retirement or eligibility for retirement under the provisions of law providing pensions for service as a volunteer fire fighter shall not render any person ineligible for participation in the benefits provided for in this act. An employee of any public or private trust in which a county, city or town participates and is the primary beneficiary shall be deemed to be an eligible employee for the purpose of this act only[.] (emphasis added). 3. All employees of participating employers who are eligible or may hereafter become eligible to be members of the system as provided by this act shall, as a condition of continuing employment or as a condition of obtaining employment with a participating employer, become members of the system. 74 O.S. 2001 §925 (This law took effect May 6, 1963).

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4. See Magnolia Pipe Line Co. v. Oklahoma Tax Comm’n, 196 Okla. 633, 1946 OK 113, ¶11, 167 P.2d 884, 888 (where statute is amended, the legislature intended to a) effect a change in the existing law or b) clarify that which was previously doubtful, looking at statute prior to the amendment can aid in determining the nature of the amendment). 5. Section 913.5 of title 74 was also amended in 1993, adding subsection B, and read as follows: A. The Board of Trustees shall adopt rules for computation of the purchase price for service credit. These rules shall base the purchase price for each year purchased on the actuarial cost of the incremental projected benefits to be purchased. The purchase price shall represent the present value of the incremental projected benefits discounted according to the member’s age at the time of purchase. Incremental projected benefits shall be the difference between the projected benefit said member would receive without purchasing the service credit and the projected benefit after purchase of the service credit computed as of the earliest age at which the member would be able to retire. Said computation shall assume an unreduced benefit and be computed using interest and mortality assumptions consistent with the actuarial assumptions adopted by the Board of Trustees for purposes of preparing the annual actuarial evaluation. B. In the event that the member is unable to pay the purchase price provided for in this section by the due date, the Board of Trustees shall permit the members to amortize the purchase price over a period not to exceed sixty (60) months. Said payments shall be made by payroll deductions unless the State Board permits an alternate payment source. The amortization shall include interest in an amount not to exceed the actuarially assumed interest rate adopted by the Board of Trustees for investment earnings each year. Any member who ceases to make payment, terminates, retires or dies before completing the payments provided for in this section shall receive prorated service credit for only those payments made, unless the unpaid balance is paid by said member, his or her estate or successor in interest within six (6) months after said member’s death, termination of employment or retirement, provided no retirement benefits shall be payable until the unpaid balance is paid, unless said member or beneficiary affirmatively waives the additional six-month period in which to pay the unpaid balance. The Board of Trustees shall promulgate such rules as are necessary to implement the provisions of this subsection. 6. “It is also firmly recognized that it is not the place of this Court, or any court, to concern itself with a statute’s propriety, desirability, wisdom, or its practicality as a working proposition. Such questions are plainly and definitely established by our fundamental law as functions of the legislative branch of government.” Fent, 984 P.2d at 204 (internal citations omitted).

2010 OK CIV APP 38 IN RE THE MARRIAGE OF JOSHUA SLATE, Petitioner/Appellee, and AMBER CHADWICK, formerly SLATE, Respondent/ Appellant. Case No. 106,134. Dec. 21, 2009 APPEAL FROM THE DISTRICT COURT OF McCLAIN COUNTY, OKLAHOMA HONORABLE GARY BARGER, JUDGE AFFIRMED Greg Dixon, MONTGOMERY & DIXON, PLLC, Purcell, Oklahoma, for Petitioner/Appellee, Rex D. Brooks, Oklahoma City, Oklahoma, for Respondent/Appellant. Wm. C. Hetherington, Jr., Judge: ¶1 This appeal involves multiple trial court rulings concerning the custody of the parties’ minor son in this dissolution proceeding. Amber Chadwick (Mother) seeks reversal of the award of primary custody to Joshua Slate 1328

(Father), arguing the clear weight of the evidence does not support that ruling and its finding that Mother’s child abuse allegation against Father was frivolous. Mother also alleges error with the trial court’s failure to admit certain evidence. We affirm the trial court’s order. ¶2 Mother and Father were married in June 2002, and the same year Mother gave birth to their son, J.S. (the child). The family resided in Washington, Oklahoma until October 2005, when they separated and Mother took the child to live with her family in Shawnee. In February 2006, Father filed a petition, seeking dissolution of their marriage based on incompatibility and joint custody of the child. ¶3 Mother filed a response requesting sole custody and an application for a temporary order concerning certain property and child custody and support. At the hearing held on those issues in April 2006, the trial court approved the parties’ settlement regarding the amount of temporary child support and alimony in lieu of property division Father had agreed to pay and ordered temporary joint custody. ¶4 On August 3, 2007, a hearing was held to consider modification of the parties’ custody arrangement due to the child’s eligibility for pre-kindergarten the next month. After hearing the testimony of three witnesses, the trial court gave primary custody of the child to Father during the school week and gave Mother custody on weekends and school holidays. ¶5 On August 15, 2007, Mother applied for an emergency temporary order and restraining order, alleging Father had abused the child during his last custody which had ended six days earlier. She claimed the child told her that Father had hit the child on the back of his head, causing the child’s head to hit a table which resulted in a cut in his left temporal area. By agreement of the parties that same day, the trial court held an in camera hearing with only the child and the parties’ counsel. After hearing Mother’s testimony, the trial court concluded she had not carried her burden to prove irreparable harm and sustained Father’s demurrer to the evidence. ¶6 At the merits hearing held in November 2007, the parties announced they had reached an agreement concerning the marital home, leaving only the issue of child custody and support and Mother’s second application for an emergency temporary order and restraining order that had been filed September 17, 2007.

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To support this application, Mother called Mr. Williamson, the secondary caseworker from the Oklahoma County Office of the Department of Human Services (DHS),1 to testify about his interview with the child at Midwest City Regional Hospital on September 7, 2007. During the investigator’s cross-examination, he identified pictures he had taken of the child’s facial injuries which the trial court admitted into evidence, without any objection.

“neglect,” which both 43 O.S. Supp 2006 § 107.3(C) and 10 O.S.2001 § 7102(B) define,2 in relevant part, as “harm or threatened harm to a child’s health” and “non-accidental physical… injury,” Mother claims “[i]t was undisputed that [the child] had a scar above his left eyebrow, a red mark (scratch or abrasion) on his right cheek and multiple bruising (both legs and back) to his body on September 7, 2007.”

¶7 That same day, Father presented his case, during which he and three witnesses testified, including the primary DHS investigator from McClain County who testified she closed the case against Father because she could not confirm any of Mother’s abuse allegations. Mother and three witnesses testified in her case, and she offered numerous exhibits. At the conclusion of the hearing, the trial court dissolved the parties’ marriage based on incompatibility and announced his approval of their property division agreement. After eliminating joint custody because both parties had testified they had not been communicating or co-operating with each other, the trial court expressly found it was in the child’s best interest that he be placed in the sole custody of Father and that Mother had made frivolous allegations of child abuse. In the Final Decree of Dissolution, the trial court awarded Mother visitation and ordered her, inter alia, to pay child support to Father. Mother’s appeal followed.

During any proceeding concerning child custody, should it be determined by the court that a party has intentionally made a false or frivolous accusation to the court of child abuse or neglect against the other party, the court shall proceed with any or all of the following:

STANDARD OF REVIEW ¶8 The paramount consideration when determining custody is the child’s best interest. Frankovich v. Frankovich, 1969 OK 151, 459 P.2d 583. A trial court’s determination of primary custody will not be reversed unless it is against the clear weight of the evidence relating to the child’s best interest, Manhart v. Manhart, 1986 OK 12, 725 P.2d 1234, or unless an abuse of discretion is demonstrated. Davis v. Davis, 1960 OK 196, 355 P.2d 572. Discretion is abused, so as to warrant reversal, when a trial judge makes a clearly erroneous conclusion and judgment, against reason and the evidence. In re BTW, 2008 OK 80, 195 P.3d 896. THE APPEAL ¶9 In her first proposition, Mother alleges the trial court erred by finding that Mother’s abuse allegation was frivolous because “there was evidence to support the allegation . . . . [e]specially in light of [the child’s testimony].” Relying on definitions of “child abuse” and Vol. 81 — No. 15 — 5/29/2010

¶10 Mother’s argument fails to consider the trial court’s express reliance on 43 O.S.Supp. 2006 § 107.3(D), when deciding that “[Mother] has made frivolous accusations to the court of child abuse against [Father]” and that it would consider “those false allegations in determining custody of [the child].” Section 107.3(D) provides:

1. Find the accusing party in contempt for perjury and refer for prosecution; 2. Consider the false allegations in determining custody; and 3. Award the obligation to pay all court costs and legal expenses encumbered by both parties arising from the allegations to the accusing party. (Emphasis added.) ¶11 We find no published Oklahoma cases interpreting § 107.3(D). Although Mother contends this section requires the same objective standard as used to determine whether a pleading is frivolous, as held by the Court in State ex rel Tal v. City of Oklahoma City, 2002 OK 97, 61 P.3d 234, she makes no real attempt to demonstrate how utilization of that standard would result in a different outcome, and we decline to so find. ¶12 Statutory interpretation presents a question of law. Fanning v. Brown, 2004 OK 7, 85 P.3d 841. The fundamental rule of statutory construction is to ascertain and give effect to the legislative intent, and that intent is first sought in the language of a statute. Id. Courts will give the words of a statute a plain and ordinary meaning, unless a contrary intention plainly appears. Id. When the language of a statute is plain and unambiguous, no occasion exists for application of rules of construction,

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and the statute will be accorded meaning as expressed by the language employed. City of Durant v. Cicio, 2002 OK 52, 50 P.3d 218. ¶13 By enacting § 107.3(D) in 1997, the Legislature authorized trial courts to penalize, by three mandated options, a party’s intentionally-made frivolous or false allegations of child abuse against the other party. The obvious purpose is to discourage such allegations in child custody proceedings. As we interpret § 107.3(D)’s clear and unambiguous language, the issue presented is whether the trial court’s factual determination that Mother made a frivolous allegation of abuse against Father to the court is supported by sufficient evidence. ¶14 In this case, the trial court not only made the required § 107.3(D) determination but also listed five reasons in its final decree supporting that determination. As summarized, the trial court found that: (1) Mother made her first allegation of physical abuse almost immediately after the court placed primary custody with Father because the child was eligible for pre-kindergarten enrollment; (2) Mother failed to meet the burden of proof in her first application for emergency custody and her second application had strikingly similar allegations; (3) DHS investigated Mother’s second application and could not confirm any of her allegations; (4) Mother asked her stepmother to write a letter about previous alleged abuse by Father that was primarily based on Mother’s assertions, i.e., the stepmother had no personal knowledge about the assertions; and (5) testimony indicated that Mother had made frivolous allegations of improper child restraint in Father’s vehicle at one of the visitation exchanges. ¶15 Mother neither denies nor disputes, in full or in part, any of the above bases for the trial court’s § 107.3(D) determination, some of which clearly relate to Mother’s credibility. On such issues, we must give deference to the trial court who is in the best position to determine controversial evidence by its observation of the parties, the witnesses and their demeanor. Daniel v. Daniel, 2001 OK 117, 42 P.3d 863. Based on our review of the record, the trial court’s finding that Mother made a frivolous allegation of abuse against Father is supported by sufficient evidence. ¶16 Under her second proposition, Mother claims the trial court erred by excluding Father’s testimony concerning what she describes in her brief as “his assault and bat1330

tery on a co-worker December 18, 2003.” We first note that Mother made no offer of proof as to the excluded testimony, i.e. Father’s response to why he was terminated from his position at U.S. Express. ¶17 “Error may not be predicated upon a ruling which ... excludes evidence unless ... the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.” 12 O.S.2001 § 2104(A)(2). The admission and exclusion of evidence is within the sound discretion of the trial court. Jordan v. General Motors Corp., 1979 OK 10, 590 P.2d 193. We will not reverse evidentiary decisions of the trial court absent an abuse of discretion which results in prejudice to the proponent. Mills v. Grotheer, 1998 OK 33, 957 P.2d 540. ¶18 Assuming, without deciding, that the substance of that evidence was apparent from the context of those questions, Mother has not demonstrated any prejudice resulting from the trial court’s exclusion of Father’s testimony. Mother and another witness testified about Father’s prior anger issues and how he was terminated because he knocked a co-worker unconscious at work. Based on our review of the record, Mother has not demonstrated the trial court abused its discretion by excluding Father’s testimony. ¶19 Mother’s final evidentiary challenge addresses the trial court’s failure to admit Exhibit 22, the medical records of Midwest City Regional Hospital of the child’s emergency room visit on September 7, 2007. Mother’s offer of proof made when the trial court sustained Father’s hearsay objection at trial was based on the hearsay rule’s exception for treatment records. ¶20 This argument must also fail because Mother has not demonstrated any prejudice from the trial court’s evidentiary ruling. She testified in detail about taking the child to the emergency room and the physician’s physical finding. Both Mother and the DHS investigator testified they observed the same physical findings on the child’s face, back and legs at the hospital that same day. Moreover, the trial court admitted the pictures of the child taken that day by the DHS investigator. Furthermore, her appellate argument does not indicate what information, if any, was exclusive to the medical records nor does she explain the relevancy of the proffered document. Mother has not

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demonstrated an abuse of discretion by the trial court’s exclusion of hospital medical records. ¶21 Under her last proposition, Mother contends that the clear weight of the evidence demonstrates that it was in the child’s best interest for Mother to be awarded custody of the child. She argues that she has been the child’s primary care giver since his birth and is a good mother, whereas the evidence establishes that Father has a very hot temper and has been violent toward his co-worker and the child. ¶22 Our review of the entire record reveals evidence which supports a contrary conclusion on the issue of Father’s temper and violence. The same can be said about all the negative evidence concerning Father’s conduct and character upon which she relies. More importantly, the trial court heard numerous witnesses testify about the quality of Father’s care of the child and the quantity of attention he has given and intends to continue giving to the child. In contrast, Mother admitted she is alone for 2-3 weeks at a time caring for her two infants due to their father’s work schedule. The evidence is undisputed that Father has excellent family backup on a daily basis whereas Mother has alienated herself from her family. From this evidence alone, the trial court could have reasonably concluded that placing custody with Father was in the child’s best interest. The trial court’s determination that the child’s best interest is better served by placing primary custody with Father rather than Mother is not against the clear weight of the evidence or an abuse of discretion. The trial court’s judgment is AFFIRMED. BELL, P.J., and BUETTNER, J., concur. 1. The record establishes that in cases where the referral of abuse occurs in a county different from the child’s residence, a “second caseworker” makes the initial investigation and if necessary, transfers the case to the “primary caseworker” for completion and ultimate decision. 2. Section 107.3(C)(1) provides, in pertinent part, that “’[c]hild abuse or neglect’ shall have the same meaning as such term is defined by the Oklahoma Child Abuse Reporting and Prevention Act (The Act).” Effective May 12, 2009, the Legislature renumbered the majority of the Act’s sections under Title 10A, but repealed 10 O.S.2001 § 7102, which defined “abuse” as “harm or threatened harm to a child’s health, safety or welfare by a person responsible for the child’s health, safety or welfare” and defined “harm or threatened harm” to include, inter alia, non-accidental physical or mental injury.”

2010 OK CIV APP 40 JIMMY R. SCOTT, by and through DONNA SUE (SCOTT) BRAME, Personal Representative, Plaintiff/Appellant, vs. Vol. 81 — No. 15 — 5/29/2010

INDEPENDENT SCHOOL DISTRICT NO. 22 OF PUSHMATAHA COUNTY, STATE OF OKLAHOMA, a/k/a MOYERS PUBLIC SCHOOLS, Defendant/Appellee. Case No. 106,616. November 30, 2009 APPEAL FROM THE DISTRICT COURT OF PUSHMATAHA COUNTY, OKLAHOMA HONORABLE LOWELL R. BURGESS JR., TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Maria Tasi Blakely, Hugo, Oklahoma, for Plaintiff/Appellant Jerry A. Richardson, J. Douglas Mann, ROSENSTEIN, FIST & RINGOLD, Tulsa, Oklahoma, for Defendant/Appellee JOHN F. FISCHER, JUDGE: ¶1 Plaintiff Jimmy R. Scott, through his personal representative Donna Sue Brame, appeals a decision of the District Court of Pushmataha County granting summary judgment to defendant Independent School District #22 of Pushmataha County (School District) on Scott’s claim for breach of contract. Based on our review of the record on appeal and applicable law, we reverse the district court’s grant of summary judgment, and remand this matter for further proceedings. BACKGROUND ¶2 Scott was hired by the Moyers Board of Education (the Board) as superintendent. It is undisputed that Scott’s initial contract was approved by the Board on February 2, 1995, and signed the same day. The minutes of the February 2 board meeting state that the Board unanimously approved a motion “to hire Mr. Jimmy R. Scott for the remainder of the 1994-95 school year.”1 The record contains a certified administrators contract between Scott and the School District, dated February 2, 1995. The last clause of the contract (the Re-hire Clause) states: Provision: Moyers board of education agrees to re-hire Mr. Jimmy R. Scott for the 1995-96 school year, provided certain conditions are met concerning the financial assessment of Moyers Public School. At a February 23, 1995, board meeting, all five members voted in favor of a second contract, re-hiring Scott “for the 1995-96 school

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year as superintendent of Moyers Public School.” However, three of the five Board members who had approved the contract on February 23 then voted to reject it at a special meeting held on March 14, 1995. At the next regular Board meeting on March 30, 1995, the Board unanimously voted not to hire Scott as superintendent for the 1995-96 school year. ¶3 In 1997, Scott filed suit against the School District, alleging breach of contract, failure to follow the provisions of 70 O.S.2001 § 6-101.13 in the non-renewal of his employment, and constitutional violations by depriving him of an expectation of continued employment without due process. In August 1998, the School District filed a motion for summary judgment as to all of Scott’s claims. Scott died in late 1998, and Scott’s widow, Donna Brame, filed a suggestion of death and a motion to substitute herself as personal representative of the estate.2 The district court set a hearing on the School District’s motion for summary judgment for March 4, 1999. ¶4 The district court docket shows no further significant activity until School District’s motion for summary judgment was heard in April 2003. The district court denied the School District’s motion by minute order filed in June 2004. Another period of inactivity followed, until an abortive pre-trial conference in April 2008. After this conference, the School District filed a second motion for summary judgment on the issues of whether Scott was employed on a temporary contract that expired when the 1994-95 school year ended, and whether the Board had ever lawfully voted to employ Scott as superintendent for the 1995-96 school year. ¶5 The district court issued a journal entry of judgment, filed on November 7, 2008, finding: (1) the undisputed facts established that the School District voted to hire Scott on a temporary contract that expired on June 30, 1995 and (2) the February 23, 1995, vote to re-hire Scott for 1995-96 was void because it was taken in wilful violation of the Open Meetings Act (OMA). The district court granted the School District’s motion for summary judgment, and ordered that “the plaintiff take nothing by virtue of his claims filed herein.” ¶6 Scott appeals from this judgment, arguing (1) the district court erred in finding that administrators with temporary contracts are not entitled to the procedural due process set 1332

out in 70 O.S.2001 § 6-101.13; (2) the court failed to view all evidence in a manner most favorable to Scott, as required by the summary judgment standard; and (3) the district court improperly considered hearsay and parol evidence as part of its summary adjudication and contract interpretation.3 STANDARD OF REVIEW ¶7 We review a trial court’s grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. This Court bears “an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.” Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. The summary process requires that we determine whether the record reveals only undisputed material facts supporting only a single inference that favors the movant’s motion for summary judgment. Id. Further, when considering a motion for summary judgment, the evidence and the inferences to be drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50. If the moving party has not addressed all material facts, or if one or more of such facts is not supported by acceptable evidentiary material, summary judgment is not proper. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 9, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court). ¶8 Whether a contract is ambiguous is a question of law, and the construction of an unambiguous contract is a question of law. Pitco Prod. Co. v. Chaparral Energy, Inc., 2003 OK 5, ¶ 12, 63 P.3d 541, 545. When consideration of extrinsic facts is necessary to construe an ambiguous contract, its construction becomes a mixed question of law and fact. Fowler v. Lincoln County Conservation Dist., 2000 OK 96, ¶ 15, 15 P.3d 502, 507. ANALYSIS I. The Re-hire Clause ¶9 It is undisputed that Scott’s initial term of employment ended on June 30, 1995, and that his contract did not automatically renew. However, the contract also clearly provides that Scott would be re-employed for 1995-96 if certain financial contingencies were met. The

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district court’s judgment does not specifically address the alleged breach of this Re-hire Clause. ¶10 School District’s appellate briefing indicated that the issue of the Re-hire Clause had been eliminated from consideration by agreement of the parties prior to the April 2008 motion for summary judgment, stating: At a pre-trial conference held on April 10, 2008, the court and parties agreed that the only issues remaining in the case were (1) whether Scott was employed on a temporary contract that expired when the 1994-95 school year ended, and (2) whether the Board lawfully voted to employ Scott as Superintendent for the 1995-96 school year at a meeting on February 23, 1995, when the agenda did not authorize the Board to take any action with regard to the Superintendent’s contract. (emphasis added.) The manner in which disposition of the Re-hire Clause was resolved raises jurisdictional issues. Consequently, this Court ordered the School District to provide a copy of any pre-trial order narrowing the issues to exclude consideration of the Re-hire Clause, and Scott’s representative to respond and confirm whether the Rehire Clause was removed from consideration voluntarily, or by court action. ¶11 The parties’ responses establish that Scott did not voluntarily dismiss any claim based on the Re-hire Clause. Therefore, we find the district court adjudicated the issue, and the order granting the School District’s motion is an appealable order pursuant to 12 O.S.2001 § 951. We will review that adjudication de novo pursuant to the summary judgment standard. II. Summary Judgment Cannot Be Granted on the Re-hire Clause Claim ¶12 As to Scott’s claim that the School District breached his contract by failing to re-hire him for the 1995-96 school year, an analysis of the arguments raised by the School District in support of its second motion for summary judgment confirms the existence of disputed material facts. School District’s arguments in favor of summary judgment fell into two categories: arguments that the Re-hire Clause was not a part of the contract the parties made, and therefore School District was not required to re-hire Scott under any conditions, and arguments that the Re-hire Clause, if part of the Vol. 81 — No. 15 — 5/29/2010

contract, should not be interpreted to require Scott’s re-hire. A. Arguments That the Contract Was Altered ¶13 School District implied in its summary judgment motion that the Re-hire Clause was added to the 1994-95 contract after the Board members voted on and signed it.4 The record contains identical affidavits from all five Board members stating that they “did not recall” the Re-hire Clause being part of Scott’s contract. In the same affidavits, the five Board members also stated that they had no intent of approving any conditional contract to re-hire Scott when they voted to approve his employment contract for the 1994-95 school year. The School District further submitted an affidavit from board member Tommy Blakey stating that he “discussed with Scott before Scott was hired the fact that Scott would be hired only through June 30 of 1995.” ¶14 The board members’ affidavits contradicted the express provisions of the Re-hire Clause. At best, these affidavits created an issue of fact regarding whether the Re-hire Clause was one of the terms and conditions of Scott’s February 2, 1995, employment contract. They did not establish as undisputed facts that the Re-hire Clause was not part of the contract. B. Extrinsic Evidence of Intent ¶15 School District further argued that the Re-hire Clause did not obligate it to re-hire Scott because the Board did not intend Scott’s contract to include any promise of a conditional re-hire. However, the contract states: “Moyers board of education agrees to re-hire Mr. Jimmy R. Scott for the 1995-96 school year, provided certain conditions are met concerning the financial assessment of Moyers Public School.” Where a contract is unambiguous on a matter, “its language is the only legitimate evidence of what the parties intended.” Mercury Inv. Co. v. F.W. Woolworth Co., 1985 OK 38, ¶ 9, 706 P.2d 523, 529. The intention of the parties may not be determined from the surrounding circumstances, but must be gathered from the four corners of the instrument. Id.; McClain v. Ricks Exploration Co., 1994 OK CIV APP 76, ¶ 8, 894 P.2d 422, 428; 15 O.S.2001 §§ 154, 155. ¶16 The contract contains an unambiguous promise to re-hire Scott if certain financial conditions were met. Extrinsic evidence may be necessary to define what those conditions

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were, but is not admissible to re-interpret the unambiguous promise to re-hire Scott if those conditions were met. Likewise, the affidavit from Board member Tommy Blakey stating that prior negotiations contradicted the terms of the Re-hire Clause is inadmissable for this purpose. Parol testimony cannot vary, modify or contradict the terms of the instrument, but is only admissible to explain the meaning of words when there is a latent ambiguity in the written text. Mercury Inv. Co., at ¶ 9, 706 P.2d at 529. ¶17 Assuming the Re-hire Clause was a valid part of Scott’s contract, School District could still meet the requirements for summary judgment by showing it was undisputed that the “conditions concerning the financial assessment of Moyers Public School” were not met. However, no evidence was introduced on this matter. Consequently, the School District has not addressed all material facts supported by acceptable evidentiary material necessary to establish its right to judgment as a matter of law, and was not entitled to summary judgment on Scott’s breach of contract claim. Spirgis, 1987 OK CIV APP 45at ¶ 9, 743 P.2d at 685. III. The OMA Issue ¶18 The Board defends this action in part by arguing that the decision to re-hire Scott made at the February 23, 1995 meeting was void because it was conducted in violation of the OMA. However, this defense applies only to the question of whether Scott was actually rehired on February 23, not whether Scott was entitled to be re-hired. If the re-hire conditions specified in the contract were satisfied, the fact that the February vote was void would not relieve the School District of its obligation to re-hire Scott. Therefore, accepting the School District’s Open Meeting argument without deciding its merits, we find the alleged violation of the OMA did not entitle School District to judgment as a matter of law. IV. Scott Was Entitled to the Due Process Required by 70 O.S.2001 § 6-101.13 ¶19 Finally, Scott has challenged the district court’s ruling that he was not statutorily entitled to the procedural due process set out in 70 O.S.2001 § 6-101.13 before the Board could decide not to re-employ him.5 The School District argued that the section 6-101.13 procedure 1334

does not apply to “temporary” administrators such as Scott, whose contracts terminate naturally without action by the Board. ¶20 The district court found that Scott was employed as a temporary administrator. However, the operative status in the statute is addressed to the “full-time certified” nature of the administrator’s employment, not temporary status. Presumably, the Legislature intended to extend the protections of § 6-101.13 to administrators employed on a full-time basis, even if temporarily. There is nothing in this record to show that Scott was not employed at the February 2, 1995, Board meeting on a fulltime certified basis for the remainder of the 1994-95 school year. Moreover, the Board at the same time employed Scott for the following year subject to certain conditions being met. Thus, the evidence is clear — the Board intended to hire him as a full-time and not as a temporary employee. ¶21 Further, although 70 O.S.2001 § 6-101.23 exempts temporary teacher contracts from the statutory due process requirements, no equivalent statute exempts temporary administrator contracts from those requirements. Also, section 6-101.3 defines a “nonremployment” decision pursuant to section 6-101.13 as a decision not to renew “an administrator’s or teacher’s contract upon expiration of the contract” indicating that expiring contracts, irrespective of duration, are subject to the section 6-101.13 requirements. The case of Hoerman v. Western Heights Bd. of Educ., 1995 OK CIV APP 130, ¶ 9, 913 P.2d 684, 687, holds that the dismissal procedures of § 6-101.13 apply to administrators on defined term contracts similar to Scott’s. Further, Hoerman held that the provisions of section 6-101.13 are part of a full-time certified administrator’s contract “as if [they] were expressly referred to or incorporated within the contract.” Id. at ¶ 22, 913 P.2d at 689-90 (citing Welty v. Martinaire of Okla., Inc., 1994 OK 10, 867 P.2d 1273). ¶22 We find Hoerman persuasive. Accordingly, we find that, if the conditions of financial assessment in the Re-hire Clause were satisfied, Scott was entitled to the procedural protections provided in § 6-101.13 prior to any decision by the School District to not employ him for the 1995-96 school year. Because it is undisputed that Scott was not afforded this procedure, School District failed to meet its

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burden required by Spirgis, and was not entitled to judgment as a matter of law.6 CONCLUSION ¶23 After review of the record on appeal and applicable law, we find that Scott has established that a question of fact exists as to whether the School District was contractually obligated to re-hire him for the 1995-96 school year. Further, we find that if the conditions of financial assessment in the Re-hire Clause were satisfied, Scott was entitled to the procedural protections provided in 70 O.S.2001 § 6-101.13, prior to any decision by the School District to not employ him for the 1995-96 school year, and it is undisputed that he was not afforded this procedure. Therefore, School District was not entitled to summary judgment in this matter. The judgment of the district court is reversed and this matter is remanded for further proceedings consistent with this Opinion. ¶24 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS GABBARD, P.J., concurs, and RAPP, J., concurs in result. 1. For clarity, we will note that the School Board’s contract hiring term operates on a fiscal year beginning on July 1 and ending on June 30. Therefore, Scott’s initial term of employment ended on June 30, 1995. 2. To retain continuity, we will refer to all actions in the district court case as actions by Scott. 3. School District’s appellate pleadings alleged procedural facts that were material to our jurisdiction, and were not clearly confirmed in the record. This Court therefore issued Orders requiring the parties to clarify certain events before the district court. We discuss the parties’ responses to those orders and the jurisdictional issue in the body of this Opinion. 4. School District did not plead the affirmative defense that the Re-hire Clause of the contract was void for fraud or mutual mistake, therefore we assume these affidavits were intended to evidence the content and interpretation of the contract. 5. 70 O.S.2001 § 6-101.13 provides: Whenever the local board of education or the administration of a school district shall determine that the dismissal or nonreemployment of a full-time certified administrator from his administrative position within the school district should be effected, the administrator shall be entitled to the following due process procedures: 1. A statement shall be submitted to the administrator in writing prior to the dismissal or nonreemployment which states the proposed action, lists the reasons for effecting the action, and notifies the administrator of his right to a hearing before the local board of education prior to the action; and 2. A hearing before the local board of education shall be granted upon the request of such administrator prior to the dismissal or nonreemployment. A request for a hearing shall be submitted to the board of education not later than ten (10) days after the administrator has been notified of the proposed action. 6. Scott further alleged that the district court erred in finding he was not entitled to the section 6-101.13 process because Oklahoma does not allow temporary administrator contracts. As we have previously determined that application of section 6-101.13 is not dependant on temporary status, we need not decide this issue.

2010 OK CIV APP 42 IN RE THE MARRIAGE OF: JOHN PERRIE HUSBAND, Petitioner/Appellee, vs. DARLENE MARIE HUSBAND, Respondent/ Appellant. Case No. 106,584. November 24, 2009 APPEAL FROM THE DISTRICT COURT OF WASHITA COUNTY, OKLAHOMA HONORABLE JILL WEEDON, TRIAL JUDGE AFFIRMED Julie D. Strong, Clinton, Oklahoma, for Petitioner/Appellee, Lauren LeBlanc Day, Newalla, Oklahoma, for Respondent/Appellant. KEITH RAPP, JUDGE: ¶1 The trial court respondent, Darlene Marie Husband (Wife), appeals from a Decree of Dissolution of Marriage in an action brought by petitioner, John Perrie Husband (Husband). BACKGROUND ¶2 After forty-five years of marriage, Wife petitioned for separate maintenance. The trial court entered a separate maintenance decree on April 11, 2005. Both parties, represented by counsel, agreed to its terms.1 ¶3 In 2005, both parties had individual retirement accounts. The income from Husband’s account is greater than the income from Wife’s account. In the Separate Maintenance Decree, the court ordered: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that petitioner should be and petitioner is hereby awarded as her sole and separate property, free and clear of any claims, rights or interest whatsoever of the respondent, the following: .... C. Petitioner’s retirement with Southern California Edison Company. .... And the respondent should be and respondent is hereby awarded as his sole and separate property, free and clear of any claims, rights or interest whatsoever of the petitioner, the following: ....

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D. Respondent’s retirement with Southern California Edison Company. ¶4 The Separate Maintenance Decree further provided that Husband was to pay Wife $18,000 as support alimony, payable at $300 per month over a period of five years. It further provided that Husband’s obligation to pay would terminate upon the death or remarriage of Wife, but was silent regarding cohabitation. ¶5 Sometime in 2007, Wife began cohabiting with another man. Husband paid his alimony installments until December 2007, when he unilaterally stopped because of Wife’s cohabitation. Husband did not pay the January or February installments.2 ¶6 In February 2008, Husband filed a petition for dissolution of the marriage.3 Wife filed a cross-petition in which she asked for a division of marital property, specifically, for purposes of this appeal, to divide both retirement accounts into equal shares. She also asked for support alimony, accrued alimony and attorney fees. Wife and Husband testified at trial. ¶7 Husband testified that the Separate Maintenance Decree accurately reflected the parties’ agreement.4 He stated that this Decree fully and finally resolved all property issues, including the retirement accounts.5 Husband also testified as to his income and expenses, stating that he had no extra money. He acknowledged that he has a female in his life. ¶8 Wife testified that she believed the division of the retirement accounts where each retained their own retirement account to be fair. However, she qualified her statement by stating that by “retain” that she meant only a separation basis but not a permanent basis and denied any intent to permanently divide the accounts as reflected in the Separate Maintenance Decree.6 She stated that the separation agreement would continue until their death.7 She testified as to her income and expenses, stating that she needed the support alimony. She acknowledged that her male friend was contributing to rent and food expenses. ¶9 The trial court ruled that there was no marital property to divide because the division had been accomplished in the Separate Maintenance Decree. The court interpreted the Separate Maintenance Decree to provide a final division of all of the parties’ property.8 The trial court denied Wife’s plea for division of the retirement accounts. 1336

¶10 The court awarded Wife a judgment in the amount $1,379 as unpaid alimony from December 2007 through February 2008 plus the deduction Husband had made earlier.9 Wife maintains that she was entitled to additional support alimony to the date of trial in October 2008. Both parties were directed to pay their own costs and attorney fees. ¶11 Wife appeals. She also seeks appealrelated attorney fees. STANDARD OF REVIEW ¶12 The first issue in this appeal is whether the trial court that entered the Separate Maintenance Decree had jurisdiction to make a final property division between the parties. The appellate court reviews de novo a question concerning the jurisdictional power of the trial court to act as it did. Jackson v. Jackson, 2002 OK 25, ¶ 2, 45 P.3d 418, 421-22. ¶13 The second issue is whether Wife should be awarded attorney fees. The decision as to whether to award attorney fees in a divorce action or related proceeding is within the discretion of the court and the award involves judicial balancing of the equities. 43 O.S. Supp. 2008, § 110(C) and (D); Jackson v. Jackson, 2002 OK 25, ¶ 21, 45 P.3d 418, 429; Barnett v. Barnett, 1996 OK 60, ¶¶ 14-15, 917 P.2d 473, 477-78. In actions of equitable cognizance, the judgment made by the trial court will be reversed if it is clearly contrary to the weight of the evidence or contrary to accepted principles of equity or rules of law. In re Estate of Eversole, 1994 OK 114, ¶ 7, 885 P.2d 657, 700. Abuse of discretion means that the appellant must show that the trial court made a clearly erroneous conclusion and judgment against reason and evidence. Broadwater v. Courtney, 1991 OK 39, ¶ 7, 809 P.2d 1310, 1312. ANALYSIS AND REVIEW A. Husband’s Application to Supplement Record. ¶14 Husband filed an Application to amend the record with a copy of Husband’s pro se answer in the Separate Maintenance action filed in the trial court in November 2004.10 The answer denies that Wife is entitled to any of the things she requested and alleges that the parties should be divorced instead. The answer’s relevance would be to show that the original action was not simply an action for separate

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maintenance, but had expanded to become one for divorce also. ¶15 In his Application, Husband states that the trial court took judicial notice of all pleadings in the Separate Maintenance action. However, the record indicates that the trial court was asked to and did take notice only of the Decree.11 ¶16 The District Court Clerk submitted the document and it was filed April 20, 2009. The case was assigned to this Court May 27, 2009. ¶17 Wife resists the Application. She states that the Application is too late. Second, she asserts that Husband mistakenly argues that she is attacking the validity of the Separate Maintenance Decree. However, her appellate position is that the Separate Maintenance Decree provision for the property constitutes a temporary order only and that the court there had no jurisdiction to enter a final property division. She does not challenge the authenticity of the answer document, nor does she point to any prejudice to her appeal from permitting the amendment to the designation of record. ¶18 Under the Rules of the Supreme Court, a counter-designation of the Record is to be filed within twenty days after the appellant’s designation is filed. Okla. Sup. Ct. R. 1.28(c), 12 O.S.2001, ch. 15, app. Form 11 is the prescribed form for designation of the record and that form contemplates an amended designation, but the Rules do not set a time limit for amendments.12 ¶19 Judicial notice permits a trial court to dispense with formal proof of facts that are the subject of judicial notice. In general, while an appellate court may take judicial notice of its own records, it cannot notice material which, though properly available for notice by the trial court from which the case came, has not been incorporated into the record on appeal. Reeves v. Agee, 1989 OK 25, 769 P.2d 745 n.15. ¶20 Here, Husband’s answer in the original action is not a part of the record of the case under review. With the exception of the Separate Maintenance Decree, none of the records of the original action are part of the case now on appeal. Thus, Husband seeks to add to the appellate record matter that is not in the record. The Application to Amend the Designation of Record is therefore denied. Vol. 81 — No. 15 — 5/29/2010

B. Finality of Property Division. ¶21 Recitals in a journal entry of judgment are taken as true and correct and are prima facie proof of the facts stated therein where not impeached or contradicted by the record. Haskett v. Turner, 1955 OK 329, 290 P.2d 133 (Syl 1). Furthermore, where a journal entry of judgment contains the words, “It is by the court ordered, adjudged and decreed,” the order following these words is the final and controlling portion of the judgment of the trial court, and, where the same is clear and unambiguous, this Court will give effect to the order, judgment and decree therein rendered. Jackson, 2002 OK 25 at ¶ 16, 45 P.3d at 427; Imo Oil & Gas Co. v. Charles E. Knox Oil Co., 1926 OK 842, ¶ 5, 250 P. 117, 118. ¶22 Here, the Separate Maintenance Decree unequivocally divides the parties’ property. Moreover, a division is certainly in accord with Husband’s evidence. It must be noted also that Wife considered the division permanent for the separation, or until one of them died.13 The parties took permanent possession of their portions of the remaining personal property. The residence was sold and the cash proceeds were divided equally, with neither party claiming any interest in the other party’s share. ¶23 However, Wife relies upon Clay v. Sun River Mining Co., 302 F.2d 599 (10th Cir. 1962), for the proposition that a trial court has no power to divide property in an action for separate maintenance, under 43 O.S.2001, § 129.14 The Clay Court distinguished an action brought under 43 O.S.2001, § 108, on the basis that the action under Section 108 began as a divorce action, but was transformed into an action for separate maintenance.15 Clay, 302 F.2d at 601-02. ¶24 The Clay Court reached its conclusion upon analysis of several Oklahoma cases. Strong v. Strong, 1956 OK 156, 299 P.2d 148; Anderson v. Anderson, 1929 OK 346, 282 P. 335; Lewis v. Lewis, 1913 OK 561, 135 P. 397. All of these cases described alimony without divorce, or separate maintenance, as nonpermanent provisions for support until reconciliation or divorce. For example, Strong was a separate maintenance action by the wife where the husband appealed a lump sum award in addition to alimony. In finding the lump sum award to be excessive, the Court noted: It is to be remembered that alimony as separate maintenance is not the same as

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alimony upon a divorce. Separate maintenance contemplates a continuance of the marriage and it is for the present needs of the wife alone, pending a reconciliation or a permanent dissolution of the relationship. . . . It is not for the purpose of finally determining their property rights. Strong, 1956 OK 156 at ¶ 5, 299 P.2d at 151 (citations omitted). ¶25 However, the trial court and Husband rely on Woodroof v. Barrington, 1947 OK 247, 184 P.2d 771. The Court held: In an action for divorce, alimony, and the division of jointly acquired property, where the plaintiff, upon submission of the cause to the court, in open court withdraws her prayer for divorce and asks only for separate maintenance, and division of the jointly acquired property of the parties, and the defendant consents to such modification, and the court, without objection on the part of the defendant, decrees a division of the jointly acquired property, such judgment, as to the settlement of property rights, is not void as beyond the power of the court, and the subsequent reconciliation of the parties does not affect their property rights under the judgment. Woodroof, 1947 OK 247, 184 P.2d 771 (Syl. 1). ¶26 There, Woodroof, the husband, sued the executor of the wife’s estate for the purpose of recovering property awarded to her. The record consisted of the pleadings and papers of the original domestic relations case. Wife had sued for divorce and division of property. However, she then advised the court, after initiation of the divorce action, that she desired separate maintenance and a property division and the husband agreed. The court then granted wife’s request and divided the property, directing that the parties execute conveyances. ¶27 Here, Wife argues that Woodroof may be distinguished from Strong and the other cases because it began as a divorce action and that the Woodroof Court did so distinguish it. The Court stated: Examination of all these cases discloses that in each the action was originally brought for alimony or separate maintenance without divorce under the provisions of the section above cited. In them the court held, either inferentially or expressly, 1338

that in an action brought only for alimony or separate maintenance, the trial court was without authority to divide the property of the parties. The factual differences between those cases and the case at bar render the decisions inapplicable to the instant case. Woodroof, 1947 OK 247 at ¶ 4, 184 P.2d at 772. ¶28 However, the Court went on to decide the case in favor of the wife’s estate. The Court cited Barker v. Barker, 1924 OK 88, 232 P. 371, where neither party sought a divorce, but both sought a division of property because they were separated. The Barker Court ruled that the court had a duty to make a disposition of the property. The Woodroof Opinion then concluded: We perceive no substantial distinction in cases where, although grounds for divorce are established, the right to a divorce is waived or relinquished, and in cases where, although a divorce is sought, it is denied by the trial court. Whether in such cases the divorce is not sought by the parties, or whether it is sought, but not granted by the trial court, their situation, in so far as the right to the division of the property is concerned, is identical. We think that section 1275 applies to all such cases where a divorce is not granted, and that in such cases whether or not jointly acquired property should be divided is left to the sound discretion of the trial court. It would be inconsistent with reason and justice to hold that where a divorce is refused by the trial court the jointly acquired property may be divided, but that where the right to divorce is waived or renounced by the parties the court is without power to divide the jointly acquired property, although the evidence shows good cause for such division. Woodroof, 1947 OK 247 at ¶ 14, 184 P.2d at 774-75. ¶29 In McAdoo v. McAdoo, 1929 OK 210, 277 P. 943, the wife sued her husband for separate maintenance, custody of minor children, and possession of property. The husband filed a cross-action praying for a divorce and other relief relating to property rights and custody of minor children. No divorce was granted, but the court had authority and jurisdiction to order and decree the equitable division of the property of the parties. In Banta v. Banta, 1949 OK 198, ¶ 4, 210 P.2d 346, 347, the Court stated, “No question is raised as to the right of the trial court to make the division of property although

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no divorce is granted, as the court’s right to do this is clear.”16 ¶30 After close reading of the lines of cases, this Court concludes and holds that a trial court has the authority to decree a division of property under 43 O.S.2001, § 108, in the following circumstances: 1. In an action initiated and concluded as a divorce case, including an action where one party counter-petitions for a divorce. 2. In an action initiated as a divorce case, but concluded as a separate maintenance decree. 3. In an action initiated as a separate maintenance action and concluded as such where: a. One or both parties ask for a property division; and b. The grounds for a divorce are established although a divorce is not granted, and the likelihood of reconciliation is remote. ¶31 The case here comes within the third category. The parties agree that the original action began and concluded as a separate maintenance action.17 Husband’s testimony, although somewhat disputed, supports the conclusion that the parties agreed to a final disposition of their property and their actions with regard to their residence and personal property are consistent with such an agreement.18 Last, the Separate Maintenance Decree makes a finding that the parties are incompatible.19 Neither party’s testimony gave any hint of potential reconciliation. Wife’s testimony indicated that the separation would continue until death.20 ¶32 Therefore, when entering the Separate Maintenance Decree the trial court had the authority to finally divide the parties’ property and did so in accordance with their agreement and in recognition that the possibility of reconciliation was remote. Consequently, upon entering the Dissolution of Marriage Decree, the trial court did not err in finding that there was no property to divide and that such division had been previously accomplished. Vol. 81 — No. 15 — 5/29/2010

C. Attorney Fees. ¶33 Wife seeks attorney fees in the trial and on appeal. The statutes authorize a court to require a party to “pay such reasonable expenses of the other as may be just and proper under the circumstances.” 43 O.S. Supp. 2008, § 110(D). ¶34 Thielenhaus v. Thielenhaus, 1995 OK 5, 890 P.2d 925, provides guidance on the issue of attorney fees. “Counsel-fee allowances, which never depend on one’s status as prevailing party in the case, must be granted only to that litigant who qualifies for the benefit through the process of a judicial balancing of the equities.” Thielenhaus, 1995 OK 5 at ¶ 19, 890 P.2d at 93435. Factors considered there were the property and support alimony received by Wife. ¶35 An award of attorney fees does not depend on any one factor such as status as the prevailing party or the financial means of a party. In considering what is just and proper under the circumstances, the court in the exercise of its discretion should consider the totality of circumstances leading up to, and including, the subsequent action for which expenses and fees are being sought. Such circumstances should include, but not be limited to: the outcome of the action; whether either party unnecessarily complicated or delayed the proceedings, or made the subsequent litigation more vexatious than it needed to be; and finally, the means and property of the respective parties. Finger v. Finger, 1996 OK CIV APP 91, ¶ 14, 923 P.2d 1195, 1197- 98. ¶36 Wife’s application for fees was premised primarily on Husband’s better ability to pay the fees. Husband denied her allegations in his testimony and claimed inability to pay her fees, which the Wife did not refute. Wife has failed to demonstrate that she should be awarded attorney fees here or in the trial court. Therefore, the trial court’s denial of an award of attorney fees is affirmed and Wife’s request for attorney fees on appeal is denied. CONCLUSION ¶37 The trial court’s finding that the Separate Maintenance Decree divided the parties’ property is not against the weight of the evidence or contrary to law. Wife has failed to demonstrate entitlement to an award of attorney fees. The judgment of the trial court is affirmed.

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¶38 AFFIRMED. GABBARD, P.J., and FISCHER, J., concur. 1. Wife, Tr. p. 40. Husband, Tr. p. 10. This Decree was admitted into evidence as Respondent’s Ex. 1, Tr. pp. 18-19. 2. In an earlier installment, Husband had deducted money he claimed as expenses from the sale of other of the parties’ property. The trial court included this amount, along with the December through February installments, in the Decree of Dissolution as part of a judgment against him for alimony not paid. Husband did not appeal. 3. The petition was assigned a new case number. 4. Tr. p. 10. 5. Tr. pp. 11-12. 6. Tr. pp. 40-41. 7. Tr. pp. 50-51. 8. Court Minute. Rec. p. 14, at 15. 9. See Court Minute. Rec. p. 14. 10. The Supreme Court deferred ruling on the Application to the reviewing Court. 11. Tr. p. 18. Wife designated, and the court clerk included, her petition for separate maintenance. This document also is not part of the divorce trial record for the same reason that Husband’s answer is not part of the divorce trial record. However, the parties’ briefs agree that Wife initiated a Separate Maintenance action. 12. The appellate court may order any part of the record not designated. Okla. Sup. Ct. R. 1.28(h), 12 O.S.2001, ch. 15 app. 13. Tr. p. 50. 14. When Clay was decided, the statute was codified as 12 O.S.1961, § 1284. The statute provides: The wife or husband may obtain alimony from the other without a divorce, in an action brought for that purpose in the district court, for any of the causes for which a divorce may be granted. Either may make the same defense to such action as he might to an action for divorce, and may, for sufficient cause, obtain a divorce from the other in such action. 15. When Clay was decided the statute was codified as 12 O.S.1961, § 1275. The statute provides: That the parties appear to be in equal wrong shall not be a basis for refusing to grant a divorce, but if a divorce is granted in such circumstances, it shall be granted to both parties. In any such case or where the court grants alimony without a divorce or in any case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties. 16. The Court cited Woodroof and Barker. It is noted that the case began as a divorce action by wife with a counter-petition for divorce. Wife amended to seek separate maintenance which the court decreed. 17. Husband’s attempt to supplement the record with his answer that also asks for a divorce would implicate McAdoo, assuming that the answer could be given a broad interpretation as also being a counterpetition for divorce. See Part A. See also n.11. 18. Every fact not negatived by the record must be presumed to support the trial court’s judgment or order. F.D.I.C. v. Jernigan, 1995 OK 54, 901 P.2d 793 n.13. “Absent explanation of the ruling by the trial court and absent a record to the contrary, we are under a duty to indulge the presumption of correctness with regard to the trial court’s general order. We will presume the trial court, ‘. . . found every special thing necessary to be found to sustain the general finding and conclusion.’” KMC Leasing Inc. v. Rockwell-Standard Corp., 2000 OK 51, ¶ 13, 9 P.3d 683, 688-89 (quoting Monarch Ins. Co. of Ohio v. Rippy, 1962 OK 6, ¶ 11, 369 P.2d 622, 625). 19. Respondent’s Ex. 1, paragraph 5. 20. Tr. p. 51.

OKLAHOMA DEPARTMENT OF HUMAN SERVICES; OKLAHOMA HEALTH CARE AUTHORITY; MIKE FOGARTY, DIRECTOR OF OKLAHOMA HEALTH CARE AUTHORITY; HOWARD HENDRICK, individually; and, GERRY MOORE, individually, Defendants/ Appellants. Case No. 106,308. Dec. 31, 2009 APPEAL FROM THE DISTRICT COURT OF DEWEY COUNTY, OKLAHOMA HONORABLE RAY DEAN LINDER, TRIAL JUDGE REVERSED Michael W. Mitchel, Katresa J. Riffel, Craig Riffel, Jessica L. Caruthers, MITCHEL, GASTON, RIFFEL & RIFFEL, PLLC, Enid, Oklahoma, for Plaintiffs/Appellees Travis Smith, ASSISTANT GENERAL COUNSEL, DEPARTMENT OF HUMAN SERVICES, Oklahoma City, Oklahoma, for Defendants/ Appellants Oklahoma Department of Human Services, Howard Hendrick and Gerry Moore Lynn Rambo-Jones, DEPUTY GENERAL COUNSEL, OKLAHOMA HEALTH CARE AUTHORITY, Oklahoma City, for Defendants/ Appellants Oklahoma Health Care Oklahoma Authority and Mike Fogarty DEBORAH B. BARNES, PRESIDING JUDGE: ¶1 The State of Oklahoma ex rel. Oklahoma Department of Human Services (OKDHS), Howard Hendrick, Director of OKDHS, Oklahoma Health Care Authority (OHCA),1 Mike Fogarty, Director of OHCA, and Gerry Moore, individually, (collectively, the State) appeal the trial court’s September 18, 2008, Order Granting Plaintiffs’ Motion for Partial Summary Judgment in which the trial court found Dale McAlary and Pearl McAlary, husband and wife (McAlarys), were improperly denied Medicaid benefits and issued an injunction preventing the State from denying Medicaid benefits to McAlarys and those similarly situated.2 We reverse. FACTS AND PROCEDURAL BACKGROUND

2010 OK CIV APP 39 DALE McALARY and PEARL McALARY, Plaintiffs/Appellees, v. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF HUMAN SERVICES; HOWARD HENDRICK, DIRECTOR OF 1340

¶2 On January 2, 2008, McAlarys moved from an assisted living facility to the Vici Nursing Home in Vici, Oklahoma. On January 8, 2008, McAlarys’ daughter, Sandra Elliott

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(Daughter), created the McAlary Family Trust (the Trust).3 McAlarys are beneficiaries of the Trust during their lifetimes, and when they are both deceased, the remainder will be evenly divided among their three children, including Daughter. Daughter, as trustee of the Trust, is authorized to use the entire corpus and income at any time for the benefit of her parents during their lifetimes. As stated by Daughter in Article III of the Trust: It is my desire, by this instrument, to create a trust in accordance with the laws of the State of Oklahoma whereby property placed in this trust shall be managed for the benefit of Beneficiaries during Beneficiaries’ lifetimes and distributed to the remainder beneficiaries named herein upon Beneficiaries’ deaths. My primary purpose of this trust is to provide funds to be spent on behalf of the Beneficiaries. It is my intention to benefit the Beneficiaries to the fullest extent possible rather than the remainder beneficiaries.4 McAlarys, in their brief filed on January 20, 2009, state that Daughter did not establish the Trust at the direction or upon the request of McAlarys; instead, she established the Trust upon her own volition and in her individual capacity because she wanted to do some planning to benefit her parents.5 However, at the administrative level it was found that Daughter established the Trust in her capacity as attorney in fact for McAlarys.6 ¶3 On January 21, 2008, Daughter transferred $178,030 of McAlarys’ money and property to the Trust. In return, McAlarys received a promissory note signed by Daughter in her capacity as trustee. The promissory note stated that the $178,030, plus four percent interest, would be repaid in six yearly installments of $29,671.76, beginning on January 8, 2009. However, the promissory note was unsecured and contained the following provision: This is a non-recourse note. Notwithstanding anything to the contrary in this note, the Borrower shall not have any personal liability for payment of this note or any sums due hereunder, and the Lender and all subsequent holders shall look solely to the payments hereunder for payment and satisfaction of all sums due under this note.7 ¶4 On January 22, 2008, McAlarys filed a Medicaid application with OKDHS. In a letter dated March 18, 2008, OKDHS denied both Vol. 81 — No. 15 — 5/29/2010

applications because it found McAlarys had “countable resources in excess of $2,000 on the date of application and for the 90 days preceding.”8 On March 19, 2008, McAlarys filed a Request for a Fair Hearing. ¶5 A hearing was held on June 4, 2008.9 McAlarys argued at the hearing that their promissory note was unmarketable and had no value.10 On June 19, 2008, the OKDHS Appeals Committee issued a decision in which it found OKDHS acted correctly in denying McAlarys’ Medicaid applications because they had countable resources worth $178,030. The Appeals Committee found, in the alternative, that if the $178,030 in the Trust was not a countable resource of McAlarys, then when McAlarys proved their promissory note had no value, they proved, by extension, that they had made a transfer of $178,030 without receipt of fair market value. ¶6 On June 20, 2008, pursuant to 56 O.S.2001 § 168(C), McAlarys requested that Howard Hendrick, Director of OKDHS (Director Hendrick), review the hearing decision. On July 18, 2008, Director Hendrick issued his decision. Director Hendrick concluded that the Trust was an available resource to McAlarys and the promissory note had no value. Director Hendrick stated, in part, that: [Daughter] is authorized to exhaust the Trust’s corpus and income for the benefit of [McAlarys] during their lives. According to [Oklahoma Administrative Code (OAC)] 317:35-5-41.6(5)(C), whether the Trust is revocable or irrevocable, the entire $178,030 corpus is considered an available resource to them. According to OAC 317:35-1920(2)(B), each of the McAlarys is allocated $89,015, half of the $178,030. This exceeds the $2,000 Medicaid resource limit. After Mr. McAlary died, all of the corpus became [Pearl] McAlary’s. Director Hendrick also stated: If the Trust is a countable resource and the [promissory note] is worthless, then the [promissory note] should be considered a nullity because it has no practical effect. The McAlarys will benefit from the Trust either by payments to them directly, or for their benefit as Trust beneficiaries, or they will benefit from the Trust when [Daughter] makes payments of corpus and income to them as payments on the [promissory note].

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Director Hendrick concluded: I find that OKDHS acted correctly in denying Mr. and Mrs. McAlary’s Medicaid applications. The denial can be made on four separate grounds, as described above. Based on my conclusion that the Trust is an available resource and that the [promissory note] has no value, the Trust corpus constituted a countable resource to Mr. and Mrs. McAlary until his death and to Mrs. McAlary alone thereafter.11 Director Hendrick’s decision was the final decision at the administrative level. See 56 O.S.2001 § 168(C).

this Court is entitled to substitute its judgment for that of the agency as to the weight of the evidence. Id.; Board of Examiners of Veterinary Medicine v. Mohr, 1971 OK 64, 485 P.2d 235. ¶10 We must accord great weight to the expertise of an administrative agency. City of Hugo v. State of Oklahoma ex rel. Public Employees Relations Board, 1994 OK 134, 886 P.2d 485. We may not substitute our judgment for that of the agency, and this holds true particularly in the area of the agency’s expertise. City of Midwest City v. Public Employees Relations Board, 2003 OK CIV APP 36, 69 P.3d 1218. ANALYSIS

¶7 Pursuant to 56 O.S.2001 § 168(D), McAlarys appealed the OKDHS decision to the District Court of Dewey County by filing their Petition on March 25, 2008. In the trial court’s September 18, 2008, Order Granting Plaintiffs’ Motion for Partial Summary Judgment, the trial court found McAlarys were improperly denied Medicaid benefits and issued an injunction preventing the State from denying Medicaid benefits to McAlarys and those similarly situated. From this Order of the trial court, the State appeals.12

¶11 The State argues that the $178,030 of McAlarys’ money and property placed by Daughter into the Trust is an available resource to McAlarys, placing them well above the relevant resource limit and thereby disqualifying them from Medicaid eligibility in Oklahoma. This is consistent with the conclusion reached at the administrative level. In opposition, McAlarys argue that the $178,030 located in the Trust is not an available resource to them.16

STANDARD OF REVIEW

¶12 McAlarys argue they are entitled to introduce additional evidence on appellate review in the form of an affidavit attached to their brief because the State allegedly did not raise the issue of whether the Trust assets are a countable (i.e., “available”) resource during the entire administrative process. In support, McAlarys cite to 75 O.S.2001 § 321, which states:

¶8 Once an administrative agency order is before us, the Oklahoma Administrative Procedures Act (OAPA), 75 O.S.2001 and Supp. 2005 §§ 250-327, governs our review. Pharmcare Oklahoma, Inc. v. State of Oklahoma Health Care Authority, 2007 OK CIV APP 5, 152 P.3d 267.13 Under the OAPA, the trial court, the Oklahoma Court of Civil Appeals, and the Oklahoma Supreme Court apply the same standard of review to the administrative record. Id.; City of Tulsa v. State of Oklahoma ex rel. Public Employees Relations Board, 1998 OK 92, 967 P.2d 1214.14 ¶9 Generally, an administrative decision should be affirmed if it is a valid order and the administrative proceedings are free from prejudicial error. 75 O.S.2001 § 322(3).15 An administrative order is subject to reversal, however, if an appealing party’s substantial rights are prejudiced because the agency’s decision is entered in excess of statutory authority or jurisdiction, or an order is entered based on an error of law. 75 O.S.2001 § 322(1)(b) and (d). Reversal is also appropriate if the agency’s findings are clearly erroneous in view of the “reliable, material, probative and substantial competent evidence” in the record. 75 O.S.2001 § 322(1)(e). As to factual questions, neither a trial court nor 1342

McAlarys’ Attempt to Supplement the Record

The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs. McAlarys’ attempt to supplement the record before this Court is not supported by § 321. Section 321 applies to the trial court — hence the reference to “a jury” and to “testimony.” Absent a statute requiring otherwise, this Court will not consider as part of an appellate record any instrument or material which has not been incorporated into the assembled record by a certificate of the clerk of the trial court. City of Lawton v. International Union of Police Associations, Local 24, 2002 OK 1, ¶ 7 n.15, 41 P.3d 371, 375 n.15. (Citations omitted.) A deficient record may not

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be supplemented by material physically attached to a party’s appellate brief. Id. at n.16. ¶13 Furthermore, the issue McAlarys allege was never raised by the State — whether the Trust assets are an available resource — was present from the first stage of the administrative process when OKDHS denied McAlarys’ applications for this very reason.17 In addition, it was present at the final stage of the administrative process because it received extensive treatment in the July 18, 2008, decision by Director Hendrick. In that decision,18 Director Hendrick states: On July 10, 2008, you, as counsel for the McAlarys, were contacted by an OKDHS employee who was working with me on this decision. You were informed that the Trust was going to be treated as an available resource in this decision . . . [and] you were given excerpts dealing with the Trust from a draft of this decision and asked if you wished to submit comments. You declined. “Parties to an action on appeal are not permitted to secure a reversal of a judgment upon error which they have invited, acquiesced or tacitly conceded in . . . .” Samedan Oil Corporation v. Corporation Commission of the State of Oklahoma, 1988 OK 56, ¶ 7, 755 P.2d 664, 668. “[T]his is a well-settled rule which emanates from the very heart of the purpose served by an appeal.” Id. McAlarys waived appellate relief as to this alleged error of their own accord.19 The Trust as an Available Resource to McAlarys ¶14 Prior to turning to the specific Oklahoma Administrative Code (OAC) sections which govern Medicaid eligibility in Oklahoma, it is important first to set forth the purpose and objective of the federal Medicaid Act. While a state is not obliged to participate in a Medicaid program, if it does participate, it must operate its program in compliance with the federal Medicaid Act. Pharmcare Oklahoma, Inc. v. State of Oklahoma Health Care Authority, 2007 OK CIV APP 5, 152 P.3d 267. “States do, however, have broad discretion to adopt standards for determining the extent of medical assistance, with the Act requiring only that the standards be reasonable and consistent with the objectives of the Medicaid Act.” Id. at ¶ 12 (citing 42 U.S.C. § 1396a(a)(17)).20 ¶15 “Congress established the Medicaid program in 1965 as Title XIX of the Social Security Act . . . to provide federal financial assistance Vol. 81 — No. 15 — 5/29/2010

to States that choose to reimburse certain medical costs incurred by the poor.” Blum v. Yaretsky, 457 U.S. 991, 993-994 (1982). (Citation omitted.) Medicaid was created by Congress “[f]or the purpose of enabling each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services . . . .” 42 U.S.C. § 1396. (Emphasis added.) Hence, Medicaid is a welfare program and its fundamental objective is to provide medical services for the poor. See Zelman v. Simmons-Harris, 536 U.S. 639, 667 (2002) (O’Connor concurring); Soskin v. Reinertson, 353 F.3d 1242 (10th Cir. 2004). “[Medicaid] is a cooperative program of the state and federal governments that provides medical assistance for the poor.” Pharmcare Oklahoma, Inc., at ¶ 12, 152 P.3d at 269. (Emphasis added.) Therefore, the specific OAC sections which we will apply in determining whether McAlarys are eligible for Medicaid payments in Oklahoma must be reasonable and consistent with the fundamental objective of providing medical assistance for the poor. ¶16 Oklahoma’s Medicaid program is set forth in Title 317 of the OAC, 317:35-1 — 317:3523. In order for an individual to receive payment for medical services under Oklahoma’s Medicaid program, he or she must meet the relevant eligibility requirements found therein. OAC 317:35-1-1. ¶17 As determined at the administrative level pursuant to OAC 317:35-19-21(2)(B), McAlarys’ individual resource limit is $2,000.21 If McAlarys’ individual resources exceed this amount, then they are ineligible for Medicaid payments. OAC 317:35-19-21(2) explains how the resources of a couple such as the McAlarys are to be allocated. In pertinent part, § 317:3519-21(2) states that “resources are determined for each individual as the amount owned by each individual plus one-half of the jointly owned resources of the couple.” If it is determined that the Trust is an available resource to McAlarys, then each spouse will own $89,015, or one-half, of this joint resource, placing each of them $87,015 above the $2,000 resource limit and thereby disqualifying them from eligibility for Medicaid payments. This resource limit is reasonable and consistent with the fundamental objective of Medicaid.

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¶18 Determination of whether the Trust is an available resource to McAlarys begins with determining whether McAlarys “established” the Trust. OAC 317:35-5-41.6(5), which applies to trust accounts established after August 10, 1993, states, in part: (A) . . . An individual is considered to have established a trust if assets of the individual were used to form all or part of the principal of the trust and if the trust was established other than by will and by any of the following individuals: (i) the individual; (ii) the individual’s spouse; (iii) a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual’s spouse; or (iv) a person, including a court or administrative body, acting at the direction or upon the request of the individual or the individual’s spouse. (B) Where trust principal includes assets of an individual described in this subparagraph and assets of any other person(s), the provisions of this subparagraph apply to the portion of the trust attributable to the assets of the individual. This subparagraph applies without regard to the purposes for which the trust is established, whether the trustees have or exercise any discretion under the trust, and restrictions on when or whether distributions may be made from the trust, or any restrictions on the use of the distribution from the trust. The above OAC language does not require that the individual or the individual’s spouse establish the trust. Rather, the OAC states that even if a trust is established by a person with legal authority to act in place of or on behalf of the individual, or even if a trust is established by a person acting at the direction or upon the request of the individual, the individual will be considered to have established the trust. ¶19 The Trust was established by Daughter. Evidence that Daughter acted on behalf of McAlarys as their attorney in fact includes Daughter’s statement in Article III of the Trust that her primary purpose in establishing the Trust was to provide funds to be spent on behalf of McAlarys, and it was her intention to benefit McAlarys to the fullest extent possible rather than the remainder beneficiaries. Addi1344

tionally, within just two weeks of establishing the Trust, it was funded by $178,030 of McAlarys’ own money and property (on January 21, 2008). Furthermore, just one day after the $178,030 was placed in the Trust (on January 22, 2008), McAlarys applied for Medicaid. The administrative agency found that when Daughter established the Trust, she was acting on behalf of McAlarys as their attorney in fact. In view of the “reliable, material, probative and substantial competent evidence” in the record, this finding is not clearly erroneous. 75 O.S.2001 § 322(1)(e). Therefore, since the record supports the finding that Daughter acted on behalf of McAlarys, we must consider McAlarys to have established the Trust. OAC 317:355-41.6(5).22 We must accord great deference to the factual findings and conclusions of an administrative agency. 75 O.S.2001 § 322(1)(e); Board of Examiners of Veterinary Medicine v. Mohr, 1971 OK 64, 485 P.2d 235. Even if competent evidence exists in opposition to a factual finding, this Court is not entitled to substitute its judgment for that of the agency as to the weight of the evidence. Id. Moreover, we must accord great weight to the expertise of an administrative agency. City of Hugo v. State of Oklahoma ex rel. Public Employees Relations Board, 1994 OK 134, 886 P.2d 485. ¶20 Having determined that McAlarys must be considered to have established the Trust, we must now focus on the Trust itself to determine if it was an “available resource” to McAlarys. OAC 317:35-5-41.6(5) states, in pertinent part: (C) There are two types of trusts, revocable trusts and irrevocable trusts. (i) In the case of a revocable trust, the principal is considered an available resource to the individual. Home property in a revocable trust under the direct control of the individual, spouse or legal representative retains the exemption as outlined in OAC 317:35-5-41.8(a)(2). Payments from the trust to or for the benefit of the individual are considered income of the individual. Other payments from the trust are considered assets disposed of by the individual for purposes of the transfer of assets rule and are subject to the 60 months look back period. (ii) In the case of an irrevocable trust, if there are any circumstances under which payments from the trust could be made to or for the benefit of the individual, the portion of the principal of the trust, or the

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income on the principal, from which payment to the individual could be made is considered available resources. Payments from the principal or income of the trust is considered income of the individual. Payments for any other purpose are considered a transfer of assets by the individual and are subject to the 60 months look back period. Any portion of the trust from which, or any income on the principal from which no payment could under any circumstances be made to the individual is considered as of the date of establishment of the trust (or if later, the date on which payment to the individual was foreclosed) to be assets disposed [of] by the individual for purposes of the asset transfer rules and are subject to the 60 months look back period. Under this language it is unnecessary to determine whether the Trust is revocable or irrevocable. Either way, the Trust is an available resource to McAlarys. If the Trust is a revocable trust, then the $178,030 simply “is considered an available resource to [McAlarys].” If the Trust is an irrevocable trust, then the $178,030 is also an available resource to McAlarys because there are circumstances under which payment of all of the $178,030 from the Trust could be made to or for the benefit of McAlarys. Once again, as stated by Daughter in Article III of the Trust: It is my desire, by this instrument, to create a trust . . . whereby property placed in this trust shall be managed for the benefit of [McAlarys] during [McAlarys’] lifetimes and distributed to the remainder beneficiaries named herein upon [McAlarys’] deaths. My primary purpose of this trust is to provide funds to be spent on behalf of [McAlarys]. It is my intention to benefit [McAlarys] to the fullest extent possible rather than the remainder beneficiaries. Therefore, the $178,030 in the Trust is an available resource to McAlarys. As stated above, this places them well above the applicable Medicaid resource limit, thereby disqualifying them from Medicaid eligibility. ¶21 The specific sections of the OAC requiring this result are reasonable and consistent with the fundamental objective of Medicaid to serve the poor. Furthermore, these specific sections follow the mandatory requirements set forth in 42 U.S.C. § 1396p(d). “The legislative purpose behind § 1396 is clear from the language of the statute. Congress required that Vol. 81 — No. 15 — 5/29/2010

states generally count trust assets . . . for purposes of determining Medicaid eligibility . . . .” Keith v. Rizzuto, 212 F.3d 1190, 1193 (10th Cir. 2000).23 The “available asset rule,” as set forth in § 1396, “is consistent with Congress’s intent to strictly limit Medicaid payments to the ‘truly needy.’” Gayan v. Illinois Dept. of Human Services, 796 N.E.2d 657, 661 (Ill. App. 2003) (citing Cherry by Cherry v. Sullivan, 30 F.3d 73, 75 (7th Cir. 1994).24 ¶22 We must “affirm the order and decision of the agency, if it is found to be valid and the proceedings are free from prejudicial error….” 75 O.S.2001 § 322(3). Finding no prejudicial error at the administrative level, we reverse the Order of the trial court.25 CONCLUSION ¶23 For the reasons set forth, we reverse the Order of the trial court and reinstate the administrative decision “that OKDHS acted correctly in denying [McAlarys’] Medicaid applications.” If the OHCA determines an overpayment has been made as a result of the injunction issued by the trial court, it may institute a recoupment procedure pursuant to OAC 317:35-13-5(b)(1).26 ¶24 REVERSED. WISEMAN, V.C.J., and GOODMAN, J., concur. 1. OHCA is the state agency designated to operate Oklahoma’s Medicaid program. 2. In their March 25, 2008, Petition, McAlarys sought class certification for similarly situated Medicaid applicants. Administrative Record (AR), file #1, p. 7. The record fails to unequivocally impart the outcome or status of McAlarys’ class certification quest. However, in the State’s Brief in Support of Application to Assume Original Jurisdiction and Petition for Writ of Prohibition, on p. 3, the State avers that: On September 9, 2008, the McAlarys’ Motion for Class Certification and Motion for Partial Summary Judgment came on for hearing before [the trial court]. Prior to hearing on the Motion for Class Certification, the parties agreed that they would be bound by the outcome of the final legal decision regarding the underlying Medicaid eligibility issue . . . . Therefore, the Motion was held in abeyance. Although the trial court has already enjoined the State, in the appealed Order, from denying Medicaid benefits to “those similarly situated,” it appears that the Motion for Class Certification is in abeyance pending the final legal decision on the Medicaid eligibility issue. 3. AR, file #5, p. 722. 4. AR, file #4, p. 128. 5. “Plaintiffs/Appellees’ Brief in Chief,” pp. 5, 21. 6. AR, file #5, p. 722. 7. AR, file #4, p. 139. 8. AR, file #4, p. 771. 9. Dale McAlary passed away prior to this hearing. 10. AR, file #5, p. 723. 11. AR, file #5, pp. 727-729. Director Hendrick also stated that “if the Trust is found to be unavailable and/or the [promissory note] is found to be worthless, then the OKDHS denial would still be correct, for the reasons stated above.” However, this was not his conclusion. Director Hendrick’s conclusion was, in short, that the $178,030 was an available resource despite having been moved to the Trust and, because this placed McAlarys well beyond the $2,000 Medicaid resource limit, the denial of the McAlarys’ Medicaid applications was proper.

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12. On September 29, 2008, the State filed an application for the Oklahoma Supreme Court to assume original jurisdiction and issue a writ of prohibition preventing the trial court judge (or any other assigned judge) from enforcing the injunction issued against the State while the case proceeds on appeal. In an Order filed on January 26, 2009, the Oklahoma Supreme Court denied the State’s application, stating “12 O.S. §§ 66 and 990.5 do not authorize an automatic stay of the injunction in this cause. The trial judge did not abuse his discretion in denying [the State’s application] pending appeal.” (Citations omitted.) 13. “[T]he clear intent of the Legislature in adopting the Administrative Procedures Act was to provide a uniform method of appeal from decisions of the various regulatory agencies and boards.” Lowry v. Board of Chiropractic Examiners, 1981 OK 80, ¶ 8, 631 P.2d 737, 738-39. 14. As a result, this Court reviews the agency’s decision, not the trial court’s. Id. 15. We may not disturb the decision of an administrative agency “unless our review of the record leads us to a firm conviction that the agency is mistaken.” Carpenters Local Union No. 329 v. State of Oklahoma ex rel. Dep’t of Labor, 2000 OK CIV APP 96, ¶ 3, 11 P.3d 1257, 1259. 16. Although the State offers an alternative argument to which McAlarys respond, we find the issue of whether the Trust is an available resource is dispositive. See n.25, below. 17. AR, file #4, p. 771. 18. AR, file #5, p. 723. 19. We note that hearings at the administrative level to determine eligibility for Medicaid are “conducted in an informal manner without formal rules of evidence or procedure.” OAC 317:2-1-5. Appeals from determinations made upon completion of such informal hearings are limited to “a record review at which the parties do not appear.” OAC 317:2-1-2(a)(6). 20. States that opt in and establish a Medicaid program must nevertheless follow the mandatory provisions found in the federal Medicaid Act, 42 U.S.C. § 1396. For example, it is a basic canon of statutory construction that use of the word “shall” indicates a mandatory intent. Keith v. Rizzuto, 212 F.3d 1190, 1193 n.3 (10th Cir. 2000). (Citation omitted.) In sum: Each participating State develops a plan containing reasonable standards . . . for determining eligibility for and the extent of medical assistance. An individual is entitled to Medicaid if he fulfills the criteria established by the State in which he lives. [Nevertheless] State Medicaid plans must comply with requirements imposed both by the Act itself and by the Secretary of Health and Human Services . . . . Ramey v. Reinertson, 268 F.3d 955, 957 (10th Cir. 2001) (emphasis added) (citing Schweiker v. Gray Panthers, 453 U.S. 34, 36-37 (1981)). 21. AR, file #5, p. 724. According to the State, “resource” is the term used by Medicaid for what is commonly referred to as an asset. Briefin-chief, p. 2 n.1. In determining whether a person qualifies for Medicaid, that person’s “resources” are calculated to determine whether they exceed the resource limit, and certain resources are specifically exempted. See OAC 317:35-5-40 - 317:35-5-49. 22. For this reason, McAlarys’ reliance on Trust Company of Oklahoma v. State of Oklahoma ex rel. Dept. of Human Services, 1991 OK 133, 825 P.2d 1295, is misplaced. That is, in Trust Company of Oklahoma, the trust was not deemed to have been established by the beneficiary, a young girl injured in a car accident; instead, the trust was established by the tortfeasor responsible (or partly responsible) for the young girl’s injuries. See Trust Company of Oklahoma, at ¶ 11 n.31, 825 P.2d at 1303 n.31. The Oklahoma Supreme Court held that, in such a situation (i.e., where the trust is not considered to have been established by the beneficiary), a trust created for the primary purpose of providing nonmedical support, and containing a provision allowing the trustee discretion to provide medical care if the beneficiary ceases to qualify for medical assistance programs, is not an “available resource.” Here, however, the record supports the administrative finding that McAlarys, beneficiaries of the Trust, established the Trust themselves via their Daughter. Second, Trust Company of Oklahoma was decided several years before OAC 317:35 et seq. was added to the Oklahoma Administrative Code, including the sections utilized in this Opinion. Third, the Trust was not explicitly created for the primary purpose of providing nonmedical support as was the case in Trust Company of Oklahoma. For these reasons, Trust Company of Oklahoma is not persuasive on the facts presented. 23. Nevertheless, Congress exempted certain “income trusts” from this requirement. Id. In Oklahoma, OAC 317:35-5-41.6(6) lists certain exempt trusts, but none are applicable to this appeal. 24. “[I]n 1986, Congress reiterated its intent that Medicaid was designed to provide basic medical care for those without sufficient income or resources to provide for themselves and thus passed 42 U. S.C. § 1396a(k).” Ramey v. Reinertson, 268 F.3d 955, 958 (10th Cir. 2001). Section 1396a(k) was known as the MQT statute because it worked to include Medicaid qualifying trusts (MQTs) into the calculation of available resources. Id. With its passage, “MQTs were no longer a permissible means to shelter assets for purposes of Medicaid eligibility.” Id. at 959. In the years that followed:

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Congress remained true to its conviction that MQTs were an impermissible means of sheltering assets for purposes of Medicaid eligibility. In fact, in 1993, § 1396a(k) was repealed by Congress and replaced by another statute even less forgiving of such trusts. See 42 U.S.C. § 1396p(d) (1993). This statute added stringent criteria regarding the treatment of MQTs . . . . Id. (Citation omitted, emphasis added.) Section 1396p(d) is still in effect in the federal Medicaid Act, and it is currently followed in Oklahoma under OAC 317:35-5-41.6(5), as reflected in this Opinion. 25. Having found that the $178,030 placed in the Trust is an available resource to McAlarys, we need not address the second issue raised on appeal: whether the placement of the $178,030 in the Trust was a transfer without receipt of fair market value despite the fact that McAlarys received a promissory note in return. Our determination that the money is an available resource to McAlarys renders resolution of this second issue unnecessary. Furthermore, as determined by Director Hendrick upon finding the Trust to be an available resource, “the [promissory note] should be considered a nullity because it has no practical effect.” AR, file #5, p. 728. We must accord great weight to the expertise of an administrative agency. City of Hugo v. State of Oklahoma ex rel. Public Employees Relations Board, 1994 OK 134, 886 P.2d 485. Finally, determination of the second issue hinges on Constitutional law; specifically, on the Supremacy Clause of the United States Constitution and whether and to what extent certain federal Medicaid sections preempt certain allegedly conflicting sections of the OAC. The general rule is that where legal relief is available on alternative, nonconstitutional grounds, we avoid reaching a determination on the constitutional basis. Pharmcare Oklahoma, Inc., 2007 OK CIV APP 5, ¶ 35, 152 P.3d 267. Based on this general rule and on the reasons stated above, we decline to reach this issue. 26. OAC 317:35-13-5 is entitled “Overpayments.” OAC 317:35-135(b) states: When it is determined that an incorrect payment has been made due to OHCA error, provider error or fiscal agent processing error, the procedures for correcting the payment errors are: (1) When the OHCA determines an overpayment has been made, automatic offset recoupment procedures are processed through the claims processing contractor. This process is followed when the overpayment is discovered by the OHCA or the fiscal agent. Any payments made pursuant to the injunction issued by the trial court are tantamount to incorrect payments made “due to OHCA error, provider error or fiscal agent processing error,” and, therefore, a recoupment procedure may commence, as set forth above, to recover any “overpayments.” This is consistent with McAlarys’ position that, “[i]f [the trial court’s] decision is ultimately reversed upon appeal, [the State has] a right to recover benefits from McAlarys and the Trust established for their support. [The State] will not be harmed in any way by the immediate enforcement of [the trial court’s] Order.” McAlarys’ Response to Petitioners’ Application to Assume Original Jurisdiction, p. 5.

2010 OK CIV APP 43 RONALD FRANTZ, Plaintiff/Appellant, vs. D’AURIZIO DRYWALL AND ACOUSTICS, an Oklahoma corporation, NICK D’AURIZIO, personally, Defendants/ Appellees, and TMG STAFFING SERVICES, INC., a foreign corporation, COLLEEN THOSTESON, personally, ROSEMARY McKIBBEN, personally, JEFF GOODSON, personally, and TRANSPACIFIC INTERNATIONAL INSURANCE CO., LTD., a foreign corporation, Defendants. Case No. 106,812. December 18, 2009 APPEAL FROM THE DISTRICT COURT OF MURRAY COUNTY, OKLAHOMA HONORABLE JOHN H. SCAGGS, JUDGE AFFIRMED

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Darryl F. Roberts, Ardmore, Oklahoma, for Plaintiff/Appellant, David L. Thomas, THOMAS & TERRELL, Oklahoma City, Oklahoma, for Defendants/ Appellants. BAY MITCHELL, CHIEF JUDGE: ¶1 Plaintiff Ronald Frantz (Frantz) appeals from an Order granting summary judgment in favor of Defendants D’Aurizio Drywall and Acoustics and Nick D’Aurizio (collectively, D’Aurizio defendants). The district court determined it does not have jurisdiction over Frantz’s claims against the D’Aurizio defendants for enforcement of two Workers’ Compensation Court awards (each properly certified unpaid) previously entered in favor of Frantz.1 ¶2 Frantz was hired by Defendant Nick D’Aurizio, the principal of D’Aurizio Drywall, to work on a construction job in 2003. During the employment, D’Aurizio Drywall had a contract with Defendant TMG Staffing Services, Inc., (TMG), a professional employer organization (PEO), pursuant to which TMG provided payroll services and workers’ compensation coverage for a fee. Frantz sustained a work-related injury in January 2003, whereupon he filed a workers’ compensation claim against TMG and its purported workers’ compensation insurance carrier, Transpacific International Insurance Company, Ltd. (Transpacific). For reasons unclear from the record, Frantz did not assert claims against D’Aurizio Drywall and/or Nick D’Aurizio in the Workers’ Compensation Court.2 Ultimately, the Workers’ Compensation Court entered an award in favor of Frantz for both temporary total disability3 and permanent partial disability4 against TMG and its carrier, Transpacific. Upon default of the Respondents’ payment obligation, Frantz obtained certification of the unpaid awards to the District Court pursuant to 85 O.S. 2001 §42. ¶3 Frantz thereafter filed this district court action against D’Aurizio Drywall, Nick D’Aurizio, TMG, Transpacific, and individual TMG officers. Judgment was ultimately entered establishing liability of Defendants TMG and its officers Rosemary McKibben, and Jeff Goodson, on the certified judgments of the Workers’ Compensation Court which remained unpaid, and for Frantz’s actual and punitive damages.5 ¶4 The D’Aurizio defendants’ successful Motion for Summary Judgment challenged the District Court’s jurisdiction. They argue the Vol. 81 — No. 15 — 5/29/2010

law does not permit Frantz to enforce a Workers’ Compensation Court judgment against another employer who was not a party/respondent to the underlying workers’ compensation proceeding. They contend the Workers’ Compensation Court has exclusive jurisdiction over the matter. Further, the D’Aurizio defendants argue that to impose liability on them after the fact in District Court without affording them a first-instance opportunity to participate as parties in the Workers’ Compensation proceeding would be an unconstitutional violation of their due process rights under the U.S. and Oklahoma Constitutions. ¶5 Frantz argues the public policy underlying Oklahoma’s Workers’ Compensation scheme supports a finding that the District Court has jurisdiction to enforce the Workers’ Compensation Court judgments against D’Aurizio Drywall and Nick D’Aurizio even though they were not parties in the Workers’ Compensation proceeding. Essentially, this argument at least implies that the protection of the injured worker’s right to compensation trumps any jurisdictional defects. Additionally, Frantz asserts the trial court’s summary judgment order is akin to allowing employer D’Aurizio Drywall and D’Aurizio to escape workers’ compensation obligations via its “employment of a bogus professional employers organization and a non-existent insurance company as the employer’s agent.” ¶6 Appellate courts review an award of summary judgment de novo, giving no deference to the trial court. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959, 963. Summary judgment is only appropriate when there is no substantial controversy as to any material fact, and the moving party is entitled to judgment as a matter of law. Id. The reviewing court must view all inferences and conclusions that can be drawn from the facts in the light most favorable to the party opposing the motion. Rose v. Sapulpa Rural Water Co., 1981 OK 85, ¶2, 631 P.2d 752, 754. We will reverse summary judgment if reasonable people could reach different conclusions from the undisputed material facts. Lowery, 2007 OK 38, ¶11, 160 P.3d at 963-64. ¶7 The issue, as it is precisely before us — the jurisdiction of the District Court in an action to enforce workers’ compensation judgments (and subsequent tort claims arising from the failure of a Public Employer Organization (PEO) to pay benefits) against an employer not previously named in the

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Workers’ Compensation proceeding — appears to be one of first impression. ¶8 Oklahoma law acknowledges and regulates Professional Employer Organizations. See, “Oklahoma Professional Employer Organization Recognition and Registration Act”, 40 O.S. Supp. 2002 §600.1 et seq. Section 600.7(E), provides PEOs and their “client” (the underlying employer) “shall be considered the employer” for purposes of Workers’ Compensation liability and the exclusive remedy doctrine.6 The statute refers to the PEO and its client as “coemployers” Id. Frantz’s theory is that because the the D’Aurizio defendants meet the statutory definition of “employer”, the Compensation Court judgments should be enforceable against those defendants in the district court proceeding. To so conclude, however, would require ignoring some fundamental aspects of the workers’ compensation scheme. ¶9 First, “[t]he Workers’ Compensation Court has exclusive original jurisdiction over all proceedings for compensation which are legally due for a job-related injury.... The right to recover charges for medical care provided for personal injuries arising out of and in the course of covered employment lies solely within the Workers’ Compensation Court.” Thomas v. Okla. Orthopedic & Arthritis Foundation, Inc., 1995 OK 47, ¶14, 903 P.2d 279, 286. (emphasis added; footnotes omitted). ¶10 Second, the exclusive remedy doctrine provides “[t]he liability ... [under the Workers’ Compensation Act] shall be exclusive and in place of all other liability of the employer ...” 85 O.S. 2001 §12; see also footnote 6, supra noting that §600.7(E) provides both coemployers with the protection of the exclusive remedy doctrine. The significance of the exclusive remedy provision here is that it provides immunity to coemployer D’Aurizio Drywall and its principal, Nick D’Aurizio from tort liability in District Court. ¶11 A first instance determination of the workers’ compensation liability of these Defendants in the proper forum is required to afford them due process, particularly where Frantz seeks to impose personal liability upon Nick D’Aurizio for the workers’ compensation benefits unpaid by employer, TMG. See PFL Life Ins. Co. v. Franklin, 1998 OK 32, ¶10, 958 P.2d 156, 162 (providing “[l]iability allocated to a non-party risk carrier without that carrier’s participation in the judicial process in which it was imposed will not pass muster when chal1348

lenged by the minimum standards of due process.”). Further, where the underlying Workers’ Compensation Court judgments have been certified upon default of the coemployer, TMG’s, Workers’ Compensation Court-ordered payment obligation, there is no payment obligation, much less default on the part of either D’Aurizio Defendant and therefore, no legal basis for District Court enforcement of the Workers’ Compensation judgments against them. “[A Workers’ Compensation Court] order can have no legal effect regarding persons or entities who were not party litigants.” Warehouse Market, Inc. v. Layman, 2008 OK CIV APP 78, ¶15, 194 P.3d 786, 790. ¶12 The trial court correctly granted the D’Aurizio defendant’s Motion for Summary Judgment. As to these defendants, subject matter jurisdiction was lacking. Exclusive jurisdiction over Frantz’s employment-related claims rests with the Workers’ Compensation Court and permitting Frantz to proceed against these defendants in district court would certainly be violative of due process ¶13 Summary judgment in favor of Defendants D’Aurizio Drywall and Nick D’Aurizio on this record was appropriate, and we therefore AFFIRM. HANSEN, P.J., and JOPLIN, J., concur. 1. The other listed Defendants are not parties to this appeal. On February 18, 2009, The Oklahoma Supreme Court entered an Order directing Frantz to show cause why the appeal should not be dismissed for lack of an appealable order because the Order attached to the petition in error only disposes of Frantz’s claims against two of the defendants and did not appear to be in compliance with 12 O.S. §994. Frantz filed a response to the show cause order demonstrating that Defendant Transpacific International Insurance Co., Ltd., was not served with summons, “is a phantom company and does not exist.” Additionally, Frantz dismissed his claims against Defendant Colleen Thosteson, in February 2009. The response further provides that final disposition had been entered as to the remaining Defendants by Order entered September 12, 2006 in the Murray County District Court. By Order entered March 4, 2009, the Oklahoma Supreme Court determined that Appellant’s response to the Show Cause Order “appears to satisfy this Court’s inquiry into its jurisdiction,” and permitted the appeal of the instant summary judgment Order to proceed. 2. D’Aurizio defendants’ Motion for Summary Judgment provides that Frantz is married to Nick D’Aurizio’s first cousin. 3. The Workers’ Compensation Court, on March 22, 2004, entered its Order awarding TTD benefits from April 28, 2003 to December 21, 2004 in the amount of $31,376.80. Upon default of Respondents TMG and Transpacific’s payment obligation pursuant to the March 2004 Order, the Workers’ Compensation Court entered a Judgment and Certification of Unpaid Award on December 23, 2004, authorizing Frantz to file certified copies of that Order in the District Court of Murray County pursuant to 85 O.S. §42. 4. The Workers’ Compensation Court awarded permanent PPD benefits on March 11, 2005 in the amount of $15,840. Upon default of Respondents TMG and Transpacific’s payment obligation pursuant to the March 2005 Order, the Workers’ Compensation Court entered a Judgment and Certification of Unpaid Award on December 15, 2005, authorizing Frantz to file certified copies of that Order in the District Court of Murray County pursuant to 85 O.S. §42. 5. In its Journal Entry of Judgment of September 12, 2006, the district court found the actions of Defendants TMG and the officers and

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directors Rosemary McKibben and Jeff Goodson to be “willful, deliberate, intentional and malicious.” Judgment was entered against them for actual and punitive damages for wrongful termination and failure to secure payments of the workers’ compensation awards. 6. 40 O.S. Supp. 2002 §600.7(E) provides: “Workers’ compensation. Both client and the PEO shall be considered the employer for the purpose of coverage under the Workers’ Compensation Act and both the PEO and its client shall be entitled to protection of the exclusive remedy provision of the Workers’ Compensation Act irrespective of which coemployer obtains such workers’ compensation coverage.”

2010 OK CIV APP 53 TERRY G. STEPHENS, Petitioner, v. OKLAHOMA HIGHWAY PATROL, COMPSOURCE OKLAHOMA, and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 107,255. April 23, 2010 PROCEEDING TO REVIEW AN ORDER OF THE WORKERS’ COMPENSATION COURT HONORABLE BOB LAKE GROVE, JUDGE SUSTAINED Harry J. “Trey” Kouri, III, Sidney A. Musser, Jr., Musser, Kouri & Grant, Oklahoma City, Oklahoma, for Petitioner, Cynthia S. Dugger, Shdeed & Dugger, Oklahoma City, Oklahoma, for Respondents. Larry Joplin, Presiding Judge: ¶1 Petitioner Terry G. Stephens (Claimant) seeks review of the trial court’s order denying interest on an award against the Respondent Oklahoma Highway Patrol (Employer). In this review proceeding, Claimant challenges the denial of interest as contrary to law and equity. ¶2 Claimant suffered a job-related injury to his ears. Employer admitted occurrence of the injury, provided necessary medical treatment and paid Claimant for temporary total disability (TTD). ¶3 Claimant subsequently sought an adjudication of permanent total disability (PTD). The Workers’ Compensation Court found Claimant was not PTD, but granted benefits for permanent partial disability (PPD), accrued (in lump sum) and continuing, and allowed Employer credit for overpayment of TTD. ¶4 Claimant then filed his petition for review, challenging denial of his claim for PTD. The Court of Civil Appeals sustained the order of the Workers’ Compensation Court with modification not relevant to this proceeding. Stephens v. Oklahoma Highway Patrol, Case No. 105,097 (Ok. Civ. App. Div. II, Sept. 26, 2008).1 Vol. 81 — No. 15 — 5/29/2010

¶5 After entry of mandate, Claimant sought the imposition of interest and penalty for Employer’s failure to promptly pay the PPD benefits awarded. Claimant requested an award of interest from the date of the Workers’ Compensation trial court’s award until the date of payment, some twenty months. Employer objected and asserted Oklahoma law did not permit the award of interest to Claimant. After a hearing, the Workers’ Compensation trial court denied Claimant’s application for penalty and interest. ¶6 Claimant now seeks review in this Court. Claimant asserts the trial court erred as a matter of law and fact in denying interest, because 85 O.S. §42(A), the Rules of the Workers’ Compensation Court, and 12 O.S. §727 authorize an award of interest under the circumstances of this case. ¶7 Section 42(A) provides: A. If payment of compensation or an installment payment of compensation due under the terms of an award, . . . , is not made within ten (10) days after the same is due by the employer or insurance carrier liable therefor, the Court may order a certified copy of the award to be filed in the office of the court clerk of any county, which award whether accumulative or lump sum shall have the same force and be subject to the same law as judgments of the district court. Any compensation awarded and all payments thereof directed to be made by order of the Court, . . . , shall bear interest at the rate of eighteen percent (18%) per year from the date ordered paid by the Court until the date of satisfaction. . . . Upon the filing of the certified copy of the Court’s award a writ of execution shall issue and process shall be executed and the cost thereof taxed, as in the case of writs of execution, on judgments of courts of record, as provided by Title 12 of the Oklahoma Statutes; provided, however, the provisions of this section relating to execution and process for the enforcement of awards shall be and are cumulative to other provisions now existing or which may hereafter be adopted relating to liens or enforcement of awards or claims for compensation. 85 O.S. 2001 §42. (Emphasis added.) Section 727(A) provides: 1. Except as otherwise provided by this section, all judgments of courts of record,

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including costs and attorney fees authorized by statute or otherwise and allowed by the court, shall bear interest at a rate prescribed pursuant to this section. 2. Costs and attorney fees allowed by the court shall bear interest from the earlier of the date the judgment or order is pronounced, if expressly stated in the written judgment or order awarding the costs and attorney fees, or the date the judgment or order is filed with the court clerk. 12 O.S. Supp. 2004 §727. (Emphasis added.) And see, Rule 2, Rules of the Workers’ Compensation Court, 85 O.S., Ch. 4, App.2 ¶8 The Workers’ Compensation Court has no authority to grant interest on an award unless Oklahoma workers’ compensation law specifically allows the imposition of interest. First Baptist Church, Bristow v. Holloway, 1965 OK 68, 402 P.2d 260; Special Indemnity Fund v. Horne, 1954 OK 293, 276 P.2d 240. Section 727 does not authorize the imposition of interest on an award of the Workers’ Compensation Court. In the Matter of the Death of Reeder, 2009 OK 54, 217 P.3d 113; City of Tulsa v. Smittle, 1985 OK 37, 702 P.2d 367. Rather, “the specific provisions of 85 O.S. §§3.6 and 42 are applicable and controlling.” Smittle, 1985 OK 37, ¶17, 702 P.2d at 371. ¶9 In this respect, §3.6 first provides: . . . . [W]hen the order of the Judge of the Court making an award to a claimant is appealed by the employer or the insurance carrier, interest shall be allowed on the accrued amounts of the award due from the date the award was filed, if the award is not modified or vacated on appeal. 85 O.S. 2001 §3.6(A). Section 3.6 further provides: . . . . The order, decision or award of a judge of the Court shall be final and conclusive upon all questions within his jurisdiction between the parties unless appealed directly to the Supreme Court or to the Workers’ Compensation Court sitting en banc as hereinbefore provided. Any party litigant desiring to appeal directly from such order, decision or award to the Supreme Court, shall, within twenty (20) days after a copy of the order, decision or award has been sent by the Administrator to the parties affected, commence an action in the Supreme Court of the state to review such order, decision or award. The Supreme Court shall have original jurisdiction of such action, and shall prescribe rules for 1350

the commencement and trial of the same. Such action shall be commenced by filing with the Clerk of the Supreme Court a certified copy of the order, decision or award of the Workers’ Compensation Court sitting en banc or the judge attached to the petition by the complaint wherein the complainant or petitioner shall make his assignments or specifications as to wherein said order, decision or award is erroneous or illegal. Provided, however, no proceeding to reverse, vacate or modify any order, decision or award of the Workers’ Compensation Court sitting en banc or judge of the Court wherein compensation has been awarded an injured employee shall be entertained by the Supreme Court unless the Administrator shall take a written undertaking to the claimant executed on the part of the respondent or insurance carrier, or both, with one or more sureties to be approved by the Administrator, to the effect that the appellant will pay the amount of the award rendered therein, together with interest thereon from the date of the award by the judge of the Court and all costs of the proceeding, or on the further order of the Workers’ Compensation Court sitting en banc or judge of the Court after the appeal has been decided by the Supreme Court, .... Before the Clerk of the Supreme Court shall accept the action for filing, a certificate from the Administrator shall be required, showing that this provision has been complied with. 85 O.S. §3.6(C). ¶10 Section 42(A) clearly authorizes the assessment of interest against an employer who fails to promptly pay an award. Section §3.6(C) clearly authorizes the assessment of interest against an employer for that period an employer withholds payment of the award during the employer’s appeal to the Supreme Court. Indeed, the employer’s commencement of a proceeding to review an award is conditioned on the posting of a bond to secure payment of both the award and interest in the event the employer is unsuccessful on appellate review. The imposition of interest when the employer withholds payment during an unsuccessful appeal both serves as a penalty for prosecuting a frivolous appeal and compensates the claimant for the lost use of his money when payment should have been made earlier. See, e.g., Cyrus v. Vierson & Cochran, Inc., 1981 OK CIV APP 40, 631 P.2d 1349. ¶11 However, neither §3.6 nor §42(A) authorize the imposition of interest against the

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employer for that period payment of an award is withheld during an appeal by the claimant. While the legislature specifically authorized the collection of interest from the employer for that period the employer withholds payment during the employer’s unsuccessful appeal, the legislature did not specifically allow the imposition of interest on payments withheld during a claimant’s unsuccessful appeal. To allow the taxation of interest for that period of time during a claimant’s unsuccessful appeal would invite the filing of frivolous appeals by claimants for the sole purpose of collecting interest at rates well above rates available in the market. ¶12 We therefore hold neither §3.6 nor §42 authorize the imposition of interest on payments withheld during a claimant’s unsuccessful appeal. The trial court did not err in denying Claimant’s request for taxation of interest. The order of the trial court is SUSTAINED. BELL, V.C.J., and MITCHELL, J., concur. 1. Not for publication. Claimant’s Petition for Certiorari, denied Jan. 12, 2009. 2. “Any matter of practice or procedure not specifically dealt with either by the Workers’ Compensation Act or by these rules will be guided by practice or procedure followed in the district courts of this state.”

2010 OK CIV APP 52 DEPARTMENT OF HUMAN SERVICES, Plaintiff/Appellee, v. MARK AUSTIN, Defendant/Appellant, v. KELLY SHADID, Third-Party Appellee. Case No. 106,473. April 16, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE LISA K. HAMMOND, JUDGE AFFIRMED Holly Hefton, HOLLY HEFTON, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant, Danny K. Shadid, DANNY K. SHADID, P.C., Oklahoma City, Oklahoma, for Third-Party/ Appellee. BAY MITCHELL, JUDGE: ¶1 Defendant/Appellant, Mark Austin (Father), seeks review of an order denying his “Motion for Repayment of Child Support Over Payments.” On appeal, Father argues he is entitled to credit for child support payments he voluntarily made from February 2006 thru September 2007, during which time the child was also receiving social security benefits arising from Father’s disability. Vol. 81 — No. 15 — 5/29/2010

¶2 One child was born to the unwed parties, Father and Third-Party/Appellee, Kelly Shadid (Mother), in January 1994. Father paid child support pursuant to an agreement of the parties for a number of years. In 2007, Mother sought reimbursement of reasonable child support expenses for the time period of June 2002 through December 2007, by filing an action for child support enforcement with the Department of Human Services (DHS). After administrative hearing, an Order was entered in December 2007, which noted Father was disabled, that the “child is receiving $752.00 from [Father’s] Social Security in lieu of child support” and the “Social Security benefit exceeds guidelines amount.” The Administrative Law Judge (ALJ) ordered that Father was not obligated to pay any monthly child support beginning January 1, 2008. That order also determined Father was not obligated for past support for the period from June 2002 through December 2007. The order references the fact that “[Mother] received lump sum award from [the Social Security Administration] that exceeds judgment amount.” ¶3 In April 2008, Father filed his motion for reimbursement of overpayment of child support, wherein he argued that after he suffered a stroke in August 2005 (and became totally disabled), he continued to make child support payments to Mother in accordance with their agreement. The record reflects the Social Security Administration (SSA) began paying “monthly child’s benefits” to the child in February 2006. The first SSA payment to the child was in the amount of $14,800, which the SSA provided the child was “due through September 2007.” Thereafter, the SSA benefit paid to the child was $752.00 per month. Father argues equity entitles him to a credit for the child support payments he made from February 2006 (when the child began receiving the SSA benefits) through September 2007 to prevent Mother from “double dipping” or profiting from the “SSA Repayment of Child Support Over Pay windfall.” The trial court denied Father’s motion, noting DHS’s consideration of the social security benefit payments at the time of the administrative hearing in December 2007, and its lack of jurisdiction to effect any payment of social security benefits to the minor child. ¶4 Child support proceedings are matters of equitable cognizance. Thrash v. Thrash, 1991 OK 32, 809 P.2d 665, 668. On appeal, an Appellate Court reviews the entire record, weighs the

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evidence and will affirm a trial court’s judgment relating to child support where it is just and equitable. Id. Oklahoma courts generally have “broad discretion” in setting child support orders, which may include a credit for overpayments of child support. Hollingsworth v. Underhill, 2001 OK CIV APP 87, ¶9, 27 P.3d 1034, 1036. Trial courts have such discretion to consider social security payments as a credit against an obligor’s child support obligation. Nibs v. Nibs, 1981 OK 25, 625 P.2d 1256. There is no Oklahoma law requiring a credit to a payor spouse for payment of child support in excess of a court-ordered obligation. Hollingsworth, 2001 OK CIV APP 87, ¶7, 27 P.3d at 1035. While this Court has noted that special equitable circumstances (such as custodial parent’s unjust enrichment) may justify a court crediting voluntary child support payments, the burden of proof is on the obligor to establish the right to equitable relief. Id. at ¶8. In the absence of a child support order, voluntary payments made in satisfaction or partial satisfaction of the common law duty to support are “not necessarily to be offset against the statutory obligation enforced by court order.” In re: McLemore, 515 S.W.2d 356, 358 (Tex. Civ.App., 1974). ¶5 First, we note the parties’ child support agreement, if in writing, was not included in the record. Therefore, we cannot discern the terms of the agreement to determine if Father “overpaid” beyond his contractual obligation in the first instance as a matter of general contract law. Nevertheless, the record reflects that after DHS calculated actual income of the parties, an arrearage was determined against Father. Father does not challenge this arrearage, but states he was “never in contempt.” Despite such an arrearage, Father’s child support obligation was determined to be $0 due to the social security benefits the child was receiving. Further, the DHS order expressly noted that Father’s child support obligation (both for past due amounts owed and for future payments) was determined by consideration of the social security benefits received by the child. Thus, Father was actually afforded the credit for social security benefits received by the child in accordance with Oklahoma law in DHS’s determination of Father’s support obligation.1 Apparently Father would have this Court ignore his arrearage and find that because his continued underpayment of his support obligation during his disability was voluntary (rather than court-ordered), this somehow constitutes overpayment entitling him to reimbursement for those voluntary payments. 1352

Father’s child support obligation was determined to be completely satisfied by way of the credit afforded to Father for the social security payments made on his behalf. He fails in his burden to prove equity entitles him to additional credit by reimbursement for child support payments he voluntarily made during the relevant time period of the child’s receipt of social security benefits. The trial court properly exercised its discretion in its denial of Father’s motion. ¶6 We further note that given the fact Father’s child support obligation was never previously adjudicated prior to the 2007 DHS administrative enforcement proceedings, the trial court below was without authority to award an additional credit for Father’s “overpayment” of child support during 2006-2007 disability payment period, as the court is bound to enter first-instance child support orders prospective in nature, not retroactive. Childers v. Childers, 1950 OK 31, 214 P.2d 722, 725. ¶7 AFFIRMED. JOPLIN, P.J., and BELL, V.C.J., concur. 1. While it is difficult to discern from the record, apparently Father presented the issue of overpayment to the administrative court, which determined it did not have jurisdiction over retroactive application of its own order.

2010 OK CIV APP 51 JACK ROTHROCK and MARY ROTHROCK, Plaintiffs/Appellees, v. HAROLD KEITH HARTLEY, GILBERT HUFFMAN, ELSIE K. WOOD, if living, and HAROLD KEITH HARTLEY, GILBERT HUFFMAN, and ELSIE K. WOOD, if deceased, their unknown heirs, assigns and successors, and STATE OF OKLAHOMA ex rel. OKLAHOMA TAX COMMISSION, Defendants, and SANDRA L. HARTLEY BENEFIELD, Petitioner/Appellant. Case No. 105,836. April 20, 2010 APPEAL FROM THE DISTRICT COURT OF CHEROKEE COUNTY, OKLAHOMA HONORABLE BRUCE SEWELL, TRIAL JUDGE AFFIRMED Todd Hembree, HEMBREE & HEMBREE, Tahlequah, Oklahoma, for Plaintiffs/Appellees Wayne Bailey, BAILEY LAW, PLC, Tahlequah, Oklahoma, for Petitioner/Appellant Sandra L. Hartley Benefield

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DOUG GABBARD II, PRESIDING JUDGE: ¶1 Appellant, Sandra L. Hartley Benefield, appeals the dismissal with prejudice of her petition to vacate a 1993 judgment quieting title to property in Appellees, Jack and Mary Rothrock (the Rothrocks). We affirm. 1

BACKGROUND ¶2 This dispute concerns a one-acre tract of property in Section 8, Township 15 North, Range 23 East, Cherokee County. ¶3 On August 9, 2007, Benefield and co-petitioner, Debra J. Hartley Little (collectively, Petitioners), filed a petition to vacate a 1993 judgment quieting title to the property in the Rothrocks. Petitioners alleged that they were the heirs and successors in interest of a defendant named in the action, Harold Keith Hartley, and they were now the current rightful owners of the property. Petitioners also alleged the judgment was obtained “through fraud in that the affidavit of service by publication contains statements that are incorrect and untrue.” Petitioners asserted the judgment was void because “the purported service by publication did not include due diligence on the part of the [Rothrocks] in finding the address for Defendant, Harold Keith Hartley,” and, thus, the judgment was “the result of false and fraudulent acts and conduct” by the Rothrocks. Petitioners claimed they had only discovered the judgment within the preceding year, when another action concerning the property was filed against them. ¶4 Attached to the petition to vacate was a certified copy of a “Journal Entry of Judgment” dated April 14, 1993, and filed of record on January 28, 1998, in Case No. C-93-165, in the District Court of Cherokee County, in which the trial court granted a default judgment quieting title to the land in the Rothrocks following service by publication on all named Defendants. The journal entry specifically finds that the Defendants “named in the caption” of the case, including Defendant Hartley, were: duly notified by service by publication, duly filed herein, and the Court having examined said service by publication, finds that said persons so served by publication were duly and properly served by publication more than forty one (41) days prior hereto, and the Court having examined the affidavit for service by publication upon which same was predicated, printed notice Vol. 81 — No. 15 — 5/29/2010

by publication, proof of publication, and having conducted a judicial inquiry into the sufficiency of [the Rothrocks’] search to obtain the names and whereabouts of the defendants who were served herein by publication and, based on the evidence produced . . . finds that the [Rothrocks] and their attorney have exercised due diligence and have conducted a meaningful search of all reasonable sources at hand, and the Court hereby approves such service by publication as meeting both statutory requirements and the minimum standards of state and federal due process, and said service by publication is hereby approved . . . . ¶5 Also attached to the petition to vacate was: (1) a copy of a “General Warranty Deed” dated March 22, 1977, and recorded October 14, 1997, conveying the property from Harold Keith Hartley to himself and his wife, Sarah Josephine Hartley, as joint tenants with right of survivorship; (2) an “Affidavit of Surviving Joint Tenant,” signed and recorded on October 14, 1997, by Benefield as “POA” for Sarah J. Hartley, and stating that Harold Keith Hartley died September 27, 1990, while still owning the property2; and (3) a copy of a “General Warranty Deed” to the property from Sarah Josephine Hartley to Petitioners, dated and recorded October 14, 1997, and signed by Benefield as “POA” for Sarah Josephine Hartley. ¶6 The Rothrocks moved to dismiss the petition to vacate. Following a hearing on November 26, 2007, the trial court granted the motion and dismissed the petition “with prejudice.” According to an order settling a narrative statement, the trial judge dismissed the case “[a]fter hearing arguments of counsel and conducting an informal conversation,” and declined to allow Petitioners to present sworn testimony in opposition to the dismissal motion.3 Petitioner Benefield now appeals.4 STANDARD OF REVIEW ¶7 The standard of review of a trial court’s order denying a petition to vacate is whether the lower court abused its discretion. Patel v. OMH Med. Ctr., Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194. “An abused judicial discretion is manifested when discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Id. Review for abuse of discretion “includes an appellate review of both issues of law and fact.” Boston v. Buchanan, 2003 OK 114, ¶ 16, 89 P.3d 1034, 1040.

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ANALYSIS ¶8 On appeal, Benefield alleges three grounds of error: first, the trial court erred by refusing to vacate the 1993 judgment because it was “obtained without jurisdiction upon the proper defendants due to a failure of service of process;” second, the order was “obtained by fraud” because the affidavit of publication in the case was untrue; and, third, the trial court committed reversible error when it “refused to examine evidence offered in support” of the petition to vacate. ¶9 Although the appellate record is meager, it is clear that Benefield did not file her petition to vacate the 1993 judgment until long after expiration of the two-year limitations period provided in 12 O.S.2001 § 1038 for challenges based on 12 O.S.2001 § 1031(4)(concerning vacation of judgments on grounds of fraud); the three-year period for challenges based on 12 O.S.2001 §1031(3)(vacation for irregularity in obtaining a judgment)5; and the three-year period of 12 O.S. Supp. 2009 § 2004(C)(3)(f), governing challenges to default judgments obtained after service by publication. Therefore, it follows that Benefield may only obtain vacatur by either: (1) proving that the judgment was void for lack of jurisdiction as shown on the face of the judgment roll,6 or (2) by means of an independent action in equity demonstrating that the judgment was obtained by extrinsic fraud. See Chapman v. Chapman, 1984 OK 89, 692 P.2d 1369; Feagin v. Davidson, 1967 OK 14, 431 P.2d 396; Scoufus v. Fuller, 1954 OK 363, 280 P.2d 720; Kauffman v. McLaughlin, 1941 OK 47, 114 P.2d 929. ¶10 Demonstrating that a judgment is “void on the face of the record” means the moving party must show, based solely on the judgment roll, that “the court rendering the judgment lacked (1) jurisdiction over the parties, (2) jurisdiction over the subject matter, or (3) jurisdictional power to render the particular judgment rendered.” Scoufus at ¶ 20, 280 P.2d at 723. “[N]o outside testimony is permissible to show its invalidity.” Id. at ¶ 18, 280 P.2d at 723 (quoting Steiner v. Smith, 1925 OK 1011, 242 P. 207). ¶11 Where the journal entry of judgment recites “that the court has ‘examined the affidavit for service by publication, notice by publication and proof of publication,’” and approves same, and there is nothing in the judgment roll to negate such a recital, “the judgment based thereon is not void on the face of the judgment 1354

roll.” Feagin at ¶ 22, 431 P.2d at 401 (quoting Washburn v. Culbertson, 1937 OK 693, 75 P.2d 190). This is what the appellate record in this case shows. The 1993 judgment entered by the trial court clearly recites that the court examined the affidavit, notice, and proof of publication, and approved them. ¶12 The journal entry also recites that the court inquired into the sufficiency of the Rothrocks’ search for Defendants — who included Harold Keith Hartley and his heirs, successors, and assigns — and that it was satisfied with and approved same. Although Benefield asserted that service was not made on the “proper defendants,” her entire claim is based on her status as Harold Keith Hartley’s heir, successor, or assign, whom the journal entry deemed properly served with process. Benefield has designated no other part of the judgment roll that would contradict these recitations. Thus, her argument that the judgment is void on the face of the record fails. ¶13 A similar rationale defeats Benefield’s allegation that the order was “obtained by fraud” because the affidavit of publication in the case was “untrue.” Despite allegations that focus wholly on the affidavit of publication, Benefield did not include the affidavit in the appellate record. An appellant has the burden of producing a sufficient record to demonstrate error. Pracht v. Okla. State Bank, 1979 OK 43, ¶ 5, 592 P.2d 976, 978. Thus, we reject this allegation of error as well. ¶14 Benefield’s final allegation of error — that the trial court was required to allow evidence at the hearing on her petition to vacate — also fails for lack of a record to support it. The Oklahoma Evidence Code provides that “[e]rror may not be predicated upon a ruling which . . . excludes evidence unless . . . the substance of the evidence was made known to the judge by offer . . . .” 12 O.S.2001 § 2104. Here, it was Benefield’s responsibility at the time of the hearing to offer her evidence, and, if it was excluded, to make an offer of proof. The record reveals no offer of proof, and nothing in Benefield’s other filings suggest that one was made. Accordingly, we must conclude that the alleged error in refusing to take evidence was not properly preserved, and we have nothing to review. See Fleck v. Fleck, 2004 OK 39, ¶ 12, 99 P.3d 238, 240-41; Pracht at ¶ 5, 592 P.2d at 978. ¶15 Moreover, Benefields’s petition to vacate itself is insufficient to have warranted further

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consideration by the trial court. To withstand a motion to dismiss, a petition to vacate based on extrinsic fraud “must allege with particularity the material facts constituting” the fraudulent conduct. Chapman at ¶ 8, 692 P.2d at 1372. In essence, “acts which result in the court being imposed on and by which interested parties are prevented from having their interests protected constitute extrinsic fraud that vitiates a judgment.” Id. at ¶ 9, 692 P.2d at 1373 (footnote omitted).

vacate based on 12 O.S.2001 § 1031(4) that presented a prima facie case of extrinsic fraud. A similar situation is not presented here. “While Patel explains that parties must be given an opportunity to present evidence in a vacation proceeding where material facts are controverted, it also teaches that there is no impediment to the consideration of undisputed facts and that an evidentiary hearing is not required in every vacation proceeding.” In re Estate of Hughes, 2004 OK 20, ¶ 19, 90 P.3d 1000, 1006.

¶16 In the case at bar, Benefield’s only allegation to support her fraud claim is that the Rothrocks did not use “due diligence” in finding an address for Harold Keith Hartley. In a later filing, she claims that Hartley’s name and home address were listed as the property’s owner on the records of the Cherokee County Tax Assessor at the time the quiet title action was filed. However, even if true, this allegation is not inconsistent with, and certainly does not disprove, the trial court’s specific finding that due diligence was exercised and service by publication was proper. If the exhibits attached to Benefield’s petition to vacate are taken as true, then Harold Keith Hartley was the only owner appearing of record for the property when the quiet title petition was filed in 1993, although he had been deceased since 1990. Thus, it is not hard to imagine why mail sent to the address listed for him in county tax records might not have been delivered or deliverable.

¶18 Benefield bears the burden of overcoming “the law’s presumption of regularity that attaches to a judgment (or order) and to the judicial proceedings that precede it.” F.D.I.C. v. Jernigan, 1995 OK 54, ¶ 8, 901 P.2d 793, 796. Here, Benefield has failed to present a record that overcomes the presumption of correctness of the trial court’s 1993 judgment which she seeks to vacate. We conclude that the trial court properly dismissed the petition to vacate.

¶17 In cases such as Patel, the Supreme Court emphasized the importance of assuring that actual or constructive extrinsic fraud has not been employed in procuring a judgment. However, the Court also made clear that any request for vacation of a judgment “must be evaluated in light of the principle of the finality of judgments,” by which an “unlimited ability to attack a judgment valid on its face” would be in the best interest of neither the public nor the court system. Patel at ¶ 37, 987 P.2d at 11991200. In Patel, the Court held that the trial court abused its discretion when it granted, without an evidentiary hearing, a timely petition to

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CONCLUSION ¶19 For all these reasons, the decision of the trial court is affirmed. ¶20 AFFIRMED. GOODMAN, J., concurs, and RAPP, J., not participating. 1. Although the style of the petition in error as filed lists Sandra J. Hartley Benefield and Debra J. Hartley Little as Appellants, the petition in error clearly states it is filed only on behalf of Benefield, and only Benefield’s attorney entered an appearance in the case. 2. The Affidavit is not properly completed. 3. The matter initially was tried, in 2007, before Judge Bruce Sewell, who has since that time retired. The narrative statement was settled by Judge Darrell G. Shepherd after this Court directed that a hearing be scheduled for the purpose of settling such statement. 4. Benefield’s petition in error indicates that she filed a “motion to reconsider” after the dismissal. That motion was filed more than ten days, but within 30 days, following the order dismissing the petition to vacate. The disposition of that motion has not been appealed. 5. Although Benefield’s petition to vacate appears to refer only to fraud as a ground for vacation, the petition also referred to § 1031(3), dealing with irregularity in obtaining the judgment. In Pettis v. Johnston, 1920 OK 224, ¶ 19, 190 P. 681, 688, the Supreme Court described what is now § 1031(3) as a potential ground to seek vacation for lack of service of process. 6. Under 12 O.S. 2001 § 32.1, the record is comprised of “the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court.”

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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

President-Elect

Vice President

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.

Kay, Pittsburg and McIntosh

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network

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OBA Insurance Law Section Summer Meeting

Hard Rock Casino Resort 777 West Cherokee Street Catoosa, OK 74015

Monday, June 28, 2010 CLE, Lunch, and Golf at Cherokee Hills Golf Club (Meeting room is attached to Pro Shop)

Our featured speaker will the Honorable Joe Sam Vassar, Creek County District Court Judge, and former Senior Staff Counsel for National American Insurance Company. 8:15 a.m. to 8:40 a.m. Registration and continental breakfast 8:40 a.m. to 8:45 a.m. Welcome and opening remarks, Jon Starr, Section Chairperson 8:45 a.m. to 9:00 a.m Recent Insurance Law case review 9:00 a.m. to 10:30 a.m. “Insurance Companies: Inside Looking Out” by the Honorable Joe Sam Vassar 10:30 a.m. to 10:40 a.m. Break 10:40 a.m. to 11:30 a.m. And Now for Something Completely Ethical: A Mad Dash Through The Rules of Professional Conduct by Jeff Curran 11:30 a.m. Lunch 12:30 p.m. to 6:00 p.m. Golf (no jeans or denim shorts and shirts must have collar and sleeves) Cherokee Hills Golf Club, on the west side of the casino, was originally designed by Perry Maxwell, who also designed the Southern Hills Country Club course in Tulsa. Golf Week ranked it as one of the “Top 5 Places You Can Play” in 2008 and 2009. Complete the form below, enclose check, and return

by June 11, 2010:

The program is being submitted for Oklahoma CLE credit of 3 hours including 1 hour of ethics.

------------------------------------------------------------Full Name:______________________________________________________________________________________ Address:________________________________________________________________________________________ City:________________________________________________ State:________________________ Zip:_________ Phone Number:_______________________________________ E-mail Address:___________________________ Are you an OBA Insurance Section member? Amount enclosed (circle one)

with golf:

without golf:

______ Yes

Member $100

______ No

Member $50

* Non-Member $200 * Non-member $150

OBA members can join the OBA Insurance Law Section through the OBA for $20.00. I _________ will (handicap ______) or ___________ will not be playing golf. If there are other individuals attending that you would like to play with in your golf foursome, please list: 1) _____________________________________ 2) _____________________________________ 3) _____________________________________ Members mail with check to: OklahomaInsurance Section, c/o Jon D. Starr, Chairperson, P.O. Box 2619, Tulsa, Oklahoma 74101-2619 Non-Members mail with check to: CLEI, LLC, P.O. Box 14174, Tulsa, OK 74159-1174 *This CLE is being done in conjunction with Continuing Legal Education Institute, LLC, (“CLEI”) , which will handle all non OBA Insurance Law Section member registrations.

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, May 5, 2010 F-2008-698 — Dale Lamoniah Ackerson was tried by jury and convicted of first degree murder (by child abuse) in violation of 21 O.S.Supp.2006, § 701.7(C), in Tulsa County District Court Case Number CF-2007-801, before the honorable William C. Kellough, District Judge. The jury set punishment at life imprisonment and the trial court set punishment in accordance with the jury verdict on July 14, 2008. From this judgment and sentence, Mr. Ackerson has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur. Thursday, May 6, 2010 F-2008-1223 — Henry Isaiah Rivers, Appellant, was tried by jury for the crime of Robbery with A Firearm, After Former Conviction of a Felony in Case No. CF-2007-6338 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment twenty years imprisonment and a $1,000 fine. The trial court sentenced accordingly. From this judgment and sentence Henry Isaiah Rivers has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. F-2008-1213 — Markees Johnson, Appellant, was tried by jury for the crime of Robbery Committed by Two or More Persons in Case No. CF-2007-6338 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment seven years imprisonment and a $1,000 fine. The trial court sentenced accordingly. From this judgment and sentence Markees Johnson has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur in Results. Friday, May 7, 2010 RE-2009-0510 — Appellant, Edward Q. Jones, pled guilty November 8, 2006, to Count 1 – Domestic Abuse, Subsequent, in Alfalfa County District Court Case No. CF-2006-37. He was sentenced to five years with all except the first eighteen months suspended and with rules and conditions of probation. The State filed an 1360

application to revoke Appellant’s suspended sentence on May 13, 2009. Following a hearing May 20, 2009, Judge Angle found Appellant violated the conditions of probation and revoked Appellant’s suspended sentence in full. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentences is REVERSED and REMANDED for a new hearing on the State’s application to revoke with Appellant represented by counsel or a valid waiver in the record. Opinion by Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J, concur; Lewis, J. concur. Tuesday, May 11, 2010 S-2009-567 — Charles Stephens was charged in Tulsa County District Court, Case No. CF2008-4901, with Possession of Methamphetamine with Intent to Distribute and Possession of Drug Paraphernalia, After Conviction of Eight Felonies. At preliminary hearing, The Honorable P. Thomas Thornbrugh, District Judge, suppressed some of the State’s evidence, but found the remaining evidence sufficient to warrant bindover. The State did not appeal the magistrate’s ruling. After bindover, the Honorable Clancy Smith, District Judge, suppressed the remaining evidence under the “fruit of the poisonous tree” doctrine. The State timely perfected an appeal from the district court’s ruling. The order of the District Court, suppressing certain evidence in this case, is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Result; Lewis, J., Concur. Wednesday, May 12, 2010 C-2009-493 — Patrick Allen McIver, Appellant, was tried by jury for the crimes of Trafficking in Illegal Drugs (Count I) and Possession of Drug Paraphernalia (Count II), After Former Conviction of Two or More Felonies in Case No. CF-2005-337, in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment fifteen (15) years imprisonment and a fine of $25,000.00 with all but $500.00 suspended on Count I, and one (1) year imprisonment and a fine of $250.00 on Count II with sentences to run concurrently. The trial court sentenced accordingly. From

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this judgment and sentence Patrick Allen McIver 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., Concurs in Results; Lewis, J., Concurs in Results. RE-2009-364 — Dwight Eatmon, Appellant, appeals from the revocation in full of his five year suspended sentence in Case No. CF-20055413, and his ten year suspended sentence in Case No. CF-2008-2167, in the District Court of Oklahoma County, by the Honorable Twyla Mason Gray, District Judge. In Case No. CF2005-5413, Appellant pled guilty to Uttering Two or More Bogus Checks and was sentenced to a term of five years, with the sentence suspended. In Case No. CF-2008-2167, Appellant pled guilty to Assault and Battery With a Dangerous Weapon, and was sentenced to a term of ten years, with the sentence suspended. On October 24, 2008, the State filed applications to revoke Appellant’s suspended sentences in both of these cases alleging he violated probation by committing the crimes of Count 1 – Assault With a Dangerous Weapon, and Count 2 – Domestic Abuse (Assault and Battery), as charged in Oklahoma County District Court Case No. CF-2008-4541. On April 14, 2009, the hearing on the application to revoke Appellant’s suspended sentences was held before Judge Gray. After considering the evidence and arguments, Judge Gray found Appellant had violated probation and revoked his suspended sentences in full, ordering that they run concurrently. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. F-2009-114 — Rayshun Carlie Mullins, Appellant, was tried by jury and convicted of the below listed crimes in Oklahoma County District Court Case Number CF-2004-4411, before the Honorable Twyla Mason Gray, District Judge: First Degree Burglary, in violation of 21 O.S.2001, § 1431, in counts 1, 8, 10, 11, 14, 17, 21, 25, 26; First Degree Rape, in violation of 21 O.S.Supp.2002, §§ 1111 and 1114, in counts 2, 4, 9, 12, 18, 27; Forcible Oral Sodomy in violation of 21 O.S.Supp.2002, §§ 886 and 888 in counts 3, 5, 19, 29; First Degree Robbery in violation of 21 O.S.2001, §§ 791 and 797 in counts 13, 20, 24, 31; Kidnapping in violation of 21 O.S.2001, § 745, in counts 23 & 30; and Sexual Battery in violation of 21 O.S.2001, § 1123(B) in count 28. The jury set punishment at life imprisonment on counts 13, 20, 23, 24, 30, 31; one-hundredVol. 81 — No. 15 — 5/29/2010

twenty-five (125) years on counts 2, 4, 9, 12, 18, 27; Twenty (20) years on counts 1, 3, 5, 8, 10, 11, 14, 17, 19, 21, 25, 26, 29; and five (5) years on count 28. The trial court set punishment in accordance with the jury verdict and ordered that the sentences be served consecutively. From this judgment and sentence, Rayshun Carlie Mullins has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED, except for count 23 which is reversed and remanded with instructions to DISMISS. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. RE-2009-178 — Jonathan Wesley Johnson, Appellant, appeals from the revocation of three and one-half years of his seven year suspended sentence in Case No. CF-2000-212 in the District Court of Logan County. Appellant entered a plea of guilty to Count 1 – Unlawful Possession of Controlled Drug With Intent to Distribute; and Count 2 – Failure to Maintain Security, and his judgment and sentencing was deferred. Appellant violated probation, his judgment and sentencing was accelerated, and he was convicted and sentenced to a term of seven years, with the sentence suspended. On February 19, 2009, the District Court found Appellant had violated rules and conditions of his probation and revoked three and one-half years of his seven year suspended sentence. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. Thursday, May 13, 2010 F-2009-175 — Raymond David Maixner, Appellant, was tried by jury and found guilty of Count 2, unauthorized use of a motor vehicle, in violation of 47 O.S.2001, § 4-102; Count 3, attempted aggravated eluding a police officer, in violation of 21 O.S.2001, § 540A(B); Count 4, possession of a firearm after former conviction of a felony, in violation of 21 O.S. Supp.2005, § 1283; and Count 5, resisting arrest, a misdemeanor, in violation of 21 O.S.2001, § 268, in the District Court of Oklahoma County, Case No. CF-2006-7493. The jury acquitted Appellant of Count 1, robbery with a firearm. The jury sentenced Appellant to five (5) years imprisonment on Count 2, twelve (12) years imprisonment on Count 3, fifteen (15) years imprisonment on Count 4, and one (1) year imprisonment in jail and a $250 fine on count 5 (O.R. 185-88). The Honorable Virgil C. Black, District Judge, imposed judgment and sentence accordingly. The trial

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court sentenced accordingly. From this judgment and sentence, Raymond David Maixner has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. Friday, May 14, 2010 F-2009-153 — Rodney J. Crowell, Appellant, was charged and convicted in a non-jury trial for the crime of Assault and Battery on Corrections Employee in Case No. CF-2008-252, in the District Court of Comanche County. Crowell was sentenced to eighteen (18) months imprisonment, to be served consecutively to the sentences he was already serving. From this judgment and sentence Rodney J. Crowell 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. Monday, May 17, 2010 C-2009-1044 — Petitioner, Kimberly D. Coulter was charged in the District Court of Garfield County, Case No. CF-2007-577, with Child Abuse. On August 3, 2009, Petitioner entered a blind Alford plea before the Honorable Tom L. Newby, Associate District Judge. Petitioner’s plea was accepted and the matter was set for sentencing on October 20, 2009, pending receipt of the pre-sentence investigation report. Prior to sentencing, Petitioner filed a Motion to Withdraw Alford Plea. The trial court denied the motion to withdraw Alford plea and sentenced Petitioner to thirty (30) years imprisonment, with all but the first five (5) years suspended, twenty dollars ($20) in jail costs, a one hundred fifty dollar ($150.00) DNA fee, restitution, and Court Costs. The trial court further set the matter for a hearing on the amount of restitution. On October 22, 2009, Petitioner filed her second Motion to Withdraw Alford Plea. On October 26, 2009, the trial court conducted the hearing on the motion to withdraw Alford plea and the determination of restitution. The trial court denied the second motion to withdraw Alford plea and set restitution in the amount of $222,517.78. It is from this Judgment and Sentence that Petitioner appeals. Accordingly, the order of the district court denying Petitioner’s motion to withdraw plea of guilty is AFFIRMED. This matter is REMANDED to the trial court with instructions to enter an order nunc pro tunc correcting Exhibit “A” to the Judgment and Sentence to accurately reflect the court’s order that $5,500.00 of the restitution amount be paid to the Oklahoma Crime Victim’s Compensation Program. Opinion by: Lumpkin, J.; 1362

C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lewis, J.: Concur in Result. F-2009-306 — Appellant, Jimmy Foster, was tried by jury and convicted of First Degree Malice Aforethought Murder in the District Court of Tulsa County, Case Number CF-2006-3169. The jury recommended as punishment life imprisonment. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur. Tuesday, May 25, 2010 RE-2009-0411 — Appellant, Joseph Lander Smith, pled guilty in the District Court of Garfield County on April 13, 2000, Case No. CF1999-266, to Rape in the Second Degree. The Honorable Richard M. Perry, District Judge, sentenced Appellant to fifteen years with the first seven years to be served and the last eight years suspended. The State filed an application to revoke Appellant’s suspended sentence on October 29, 2008. Following a revocation hearing before the Honorable Tom L. Newby, Associate District Judge, on April 22, 2009, Judge Newby found Appellant violated the terms of probation and revoked Appellant’s suspended sentence in full with credit for time served. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J.: Concur. COURT OF CIVIL APPEALS (Division No. 1) Thursday, May 6, 2010 106,944 — Jane Winkler, Petitioner/Appellee, vs. John Winkler, Respondent/Appellant. Appeal from the District Court of Cleveland County, Oklahoma. Honorable Stephen W. Bonner, Trial Judge. In this divorce action, Husband appeals from the trial court’s determinations regarding the valuation and division of the parties’ property. First, regarding Wife’s retirement accounts, with the record in its present state, we have no way to determine if the trial court properly valued these accounts. On remand, the trial court must choose a date for valuation and assign values to Wife’s retirement accounts consistent with Sien v. Sien, 1994 OK CIV APP 159, 889 P.2d 1268. Second, Husband asserts the court erred by not valuing Wife’s $75,000 in severance pay received at the time she left employment and in not including it in the marital property for equitable division.

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There is nothing regarding the severance pay in the Decree. If the court found Wife’s severance pay to be her separate property, the court was required to make that finding in the Decree. The court must either confirm the severance pay as separate property or include it in the equitable division. We are unpersuaded the court erred in failing to expressly value the “stock and any interest” in JWM and U.S. Properties, Inc. There was no controversy as to the value of the identified assets of either. Any failure to otherwise value these corporations was Husband’s lack of supporting evidence. Husband also failed to assign specific values, or produce evidence to establish the debts of JWM and U.S. Properties. Regarding the parties’ personal bank accounts, on remand, the court must assign values to the accounts which are to be included in the division of marital property. Husband also contends the court “overvalued” the promissory note they received from the sale of JWM. The court valued the note at its remaining balance at trial and not at the reduced amount Husband propounded. We find the court’s determination the note balance should not be reduced was not clearly against the weight of the evidence or an abuse of discretion. Husband asked the court to order each party to pay taxes individually on his or her share of the note payments. The court made such an order in the Decree. In addition to the specific matters which the trial court is to address on remand, the court is directed to assign a value to each asset and debt awarded in its Decree. Even if the trial court were not legally obligated to enter detailed specific findings and conclusions as to each asset or debt, when it undertook to enter such findings as to some assets in its Decree, and not others, the result was to create confusion among the parties and hinder appellate review. The trial court’s Decree is AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,388 — In Re the Marriage of: Erica Sue Harlan, Petitioner/Appellee, vs. Kevin Dewayne Harlan, Defendant/Appellant. Appeal from the District Court of Rogers County, Oklahoma. Honorable Robert E. Price, Trial Judge. Father seeks review of the trial court’s decree of dissolution of marriage to the extent the decree awarded custody of the parties’ two younger children to Mother, divided Father’s retirement account and the proceeds of the marital home, and ordered counseling for the parties’ oldest child. Father argues the Vol. 81 — No. 15 — 5/29/2010

children expressed a preference to live with him, and the court abused its discretion in awarding custody of the children to Mother. The court decided not to follow the children’s preference because it found the children had not formed an intelligent preference. We see no abuse of discretion. Father contends the trial court erred in dividing property. The parties had been separated for four years during which time Father continued his job and paid off the balance of the marital home while Mother went to medical school. We modify the court’s order which split the proceeds of the sale of the marital home equally. We direct the parties to apply the proceeds first to reimburse Father the payoff amount and then split the balance equally. Regarding Father’s retirement account, the clear weight of the evidence established the parties’ joint industry ended upon their separation. That portion of the decree awarding Mother one-half the retirement account valued as of the date of trial is modified to award Mother one-half of the benefits that accrued before separation. Father contends the order for counseling for the oldest child is too vague to be enforced. The custodial parent is responsible for obtaining counseling for the oldest child and the expenses are to be treated as any other medical expense. The court’s order is specific enough for the enforcement as written. The decree of dissolution is AFFIRMED AS MODIFIED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. Friday, May 14, 2010 106,544 — State of Oklahoma, ex rel. Department of Transportation, Plaintiff/Appellant, vs. Harold Ray Williams, Defendant/Appellee, and The Grady County Treasurer, Defendant. Appeal from the District Court of Grady County, Oklahoma. Honorable Richard G. Van Dyck, Judge. Plaintiff/Appellant the State of Oklahoma, ex rel. Department of Transportation (ODOT) appeals from a judgment entered on a jury verdict awarding compensation to Defendant/Appellee Harold Ray Williams in an eminent domain proceeding. After appointed commissioners estimated just compensation was $39,240 for Williams’s 1.02 acre tract, both parties requested a jury trial on the amount of compensation. The jury awarded Williams $180,000. On appeal, ODOT claims errors in the admission of certain evidence and in the jury instructions. We find no abuse of discretion in the trial court’s decisions admitting or excluding evidence. We further find the trial court properly instructed the jury. The jury’s

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decision is supported by competent evidence and we affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 107,035 — L.G. Sam Davis, Plaintiff, vs. Eddie P. Mayberry, Jacob Barnett, William Barnett, Edward Barnett, Lydia Taryole, Norma Jean Waggoner, Pauline Starr, now Proctor, Bertha Ogle, Elliott Ryal, Eliza Starr, Smiley Barnett, Amos Barnett, Joseph Barnett, James Ryal, Geronimo Starr, Millie Starr Yardy, a/k/a Nellie Starr Yardy, Amos Starr, Katie Barnett and Jimmie Starr, each living and if deceased, their unknown successors, Roger Thomas Canard, Executor of the Estate of Leona Starr Fier Canard, deceased, State of Oklahoma, ex rel. Oklahoma Tax Commission, Kathy Anglin, Successor to Dessa Hammontree, Creek County Treasurer, and United States of America, Defendants, and Donal R. Mayberry and Sharon Y. Mayberry, Husband and Wife, Defendants/ Cross-Petitioners/Appellants, and Solomon Lee, Jr., Shirley Mae Lee Hill, Sidney Lee, Samarian Lee, now Jackson, Simeon Lee, a/k/a Chaparney Lee, Sandra Lee, now Frazier, Suzanna Lee, now Randall a/k/a Suzanne Lee, now Randall, Sharon Lee now Frazier, and Sylvia Lee now Tulsa, Defendants/Cross-Defendants/ Appellees. Appeal from the District Court of Creek County, Oklahoma. Honorable Douglas W. Golden, Trial Judge. In 1992, Plaintiff (Davis) filed a petition seeking to quiet title and partition a 160 acre tract of property in Creek County, which was taxable Restricted Indian Land. In October 1994, while the case was pending, Appellants (Mayberry) purchased a tax sale certificate to an undivided 11/60 interest in the property. Appellants purchased Certificate Tax Deed in 1997. In 2002, Davis filed an amended petition adding Appellants as defendants. The Secretary of the Interior filed a motion for partial summary judgment. The court granted Secretary’s motion as to the validity of the tax deed finding the deed to be void because the Creek County Treasurer did not provide notice to the Bureau of Indian Affairs (BIA) prior to the sale of the property. It found a genuine issue of fact existed as to whether Appellants acquired title by adverse possession and overruled Secretary’s motion on the issue of adverse possession. Following a trial, the court made a finding that Appellants had not met their burden of proof establishing by clear and convincing evidence they had been in actual, hostile, open, notorious, exclusive and continuous possession of the undivided 11/60 interest in the property for the five years preceding the filing of their 1364

claims. The court declared Appellees the true and rightful owners of the 11/60 undivided interest in the property. It ordered Appellees to remit the taxes, penalties, interest and costs to Appellants as required by 68 O.S. 2001 §3140. Appellants appeal. Because notice was not provided to BIA at least 90 days prior to the sale, the treasurer had no jurisdiction to issue the tax deed. As a result, the tax deed issued was void. Neither the payment of taxes nor the recording of a deed constitute possession. The trial court did not abuse its discretion in its determination Appellants did not meet their burden of proof to establish title by adverse possession. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,257 — State of Oklahoma, ex rel. Department of Transportation, Plaintiff/Appellant, vs. Harold Ray Williams, Defendant/Appellee, and The Grady County Treasurer, Defendant. Appeal from the District Court of Grady County, Oklahoma. Honorable Richard G. Van Dyck, Judge. Plaintiff/Appellant the State of Oklahoma, ex rel. Department of Transportation (ODOT) appeals from a judgment awarding attorney fees and costs to Defendant/Appellee Harold Ray Williams as part of an eminent domain proceeding. After appointed commissioners estimated just compensation was $39,240 for Williams’s property, both parties requested a jury trial on the amount of compensation. ODOT asserted $25,500 was just compensation, while Williams sought more than $600,000. The jury awarded Williams $180,000. Williams then sought an award of fees and costs pursuant to 27 O.S.2001 §11. The trial court awarded Williams $188,169.75 in attorney fees and $35,263.35 as costs. On appeal, ODOT claims the trial court applied the wrong burden of proof in its decision on costs and fees, and that the trial court awarded an unreasonable amount of costs and fees. We find no abuse of discretion in the fees and costs awarded and affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 107,869 — Bacone College and Travelers Indemnity Company of America, Petitioners, vs. Elizabeth Mayes and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of The Workers’ Compensation Court. Honorable William R. Foster, Trial Judge. Review of an order of the Workers’ Compensation Court finding Elizabeth Mayes sustained an accidental personal injury arising out of and in the course of her employment and awarding her temporary total disability

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and permanent partial disability benefits. Petitioners argue Mayes’s injuries arose from an idiopathic event which did not arise from her employment as required by 85 O.S. §§ 3(13) and 3(16). HELD: Competent evidence supports the order of the Workers’ Compensation Court and the order is sustained. SUSTAINED. Opinion by Hetherington, J.; Hansen, J., concurs, and Buettner, P.J., dissents. 107,931 — H & R Block, Plaintiff/Appellant, vs. Michael Chad Hawkes and Chasma R. Hawkes, Husband and Wife; Bank of Oklahoma, N.A.; and Security Bank, Defendants, and Bank of Oklahoma, N.A., Defendant/ Cross-Claimant, and Hawks Auto Group, L.L.C., an Oklahoma Limited Liability Company; Michael Chad Hawkes and Chasma R. Hawkes, Husband and Wife; Thomas B. Caldwell; and, Security Bank, Defendants, and First Pryority Bank, a State Banking Association, Intervenor/Appellee. Appeal from the District Court of Mayes County, Oklahoma. Honorable Terry H. McBride, Trial Judge. Appellant brought this action seeking judgment on a note executed by Defendants (Hawkes). Appellant obtained a judgment and sought to foreclose its mortgage and sell the property. Subsequent to the judgment, but before the property was sold, Appellee intervened claiming it held a mortgage superior to Appellant’s. The trial court granted Appellee’s motion to intervene. Appellant appeals and contends Appellee knew Hawkes were refinancing through Appellant, and if it had appeared to Appellant there was an existing security agreement, it would not have loaned the money to Hawkes. Appellant suggested that was the reason Appellee delayed filing its mortgage. Appellant acknowledged it knew Appellee had entered into the agreement with Hawkes to release its existing mortgage and to forbear filing its new mortgage for thirty days, to allow Hawkes time to refinance. Had Mr. Hawkes carried out his promise, Hawkes would have obtained the refinancing with Appellant, Appellant would have filed its mortgage within that thirty days, and this priority conflict would not have arisen. Appellant did not have a final gap check and waited a week after the closing to file its mortgage. Although Appellant relied on Hawkes’ misrepresentation about Appellee’s mortgage, this cannot be attributed to Appellee. It is undisputed Appellee’s mortgage was filed prior to Appellant’s. This clearly gives Appellee’s mortgage priority over that of Appellant. AFFIRMED. Vol. 81 — No. 15 — 5/29/2010

Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. Friday, May 21, 2010 106,829 — Cheryl Orange, Plaintiff/Appellant, vs. Cajun Operating Company, a Delaware Corporation; d/b/a Church’s Fried Chicken, Inc., and Church’s Chicken, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara G. Swinton, Judge. Plaintiff/Appellant Cheryl Orange (Orange) filed a petition August 14, 2008 alleging that while dining at Defendant/Appellee Cajun Operating Company’s restaurant (Church’s Fried Chicken) July 30, 2001, cement furniture collapsed on her, resulting in injury. Church’s Fried Chicken filed a Motion to Dismiss and Motion to Quash Summons September 3, 2008, attaching pleadings and documents from Orange’s first lawsuit, which was filed July 29, 2003 (No. CJ-20036458). In her first lawsuit, Orange failed to serve the defendants, America’s Favorite Chicken Company and Church’s Fried Chicken, Inc., and the matter was dismissed without prejudice March 28, 2005, pursuant to District Court Rule 9(a). That order became final and its validity is not before us. The present lawsuit is barred by the statute of limitations and we AFFIRM the trial court’s order of dismissal. However, we find that the trial court abused its discretion when it assessed sanctions against Orange, personally, and REVERSE that part of the sanction order. AFFIRMED IN PART, REVERSED IN PART. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 107,313 — In the Matter of the Adoption of Baby H., a minor child: Tommy Daniel and Tara Daniel, Appellants, vs. Shawn E. Corley, Appellee. Appeal from the District Court of Cleveland County, Oklahoma. Honorable Stephen Bonner, Trial Judge. Baby H (Child), a three-year-old at the time of trial, was placed by her natural mother with prospective adoptive parents, Appellants (Daniel) within days following Child’s birth. In In Re Baby Girl H, Case No.105,328 (Jan. 30, 2009), the Court affirmed the trial court’s decision denying the Daniels’ application to adopt Child without the consent of her natural father, Appellee (Corley). After mandate, the trial court heard the issue of Child’s custody and issued an order granting joint custody to the Daniels and Corley for a transition period, after which Corley would have sole custody. The Daniels seek review of that order. We find the trial court properly applied the directives of In Re Baby

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Girl L., 2002 OK 9, 51 P.3d 544. The evidence in the record does not establish Child is reasonably certain to suffer serious, extensive and lasting psychological harm from a change in custody. To the contrary, the clear and convincing evidence shows Child possesses the characteristics that will enable her to emerge emotionally and psychologically healthy after the transition. The transition plan the trial court crafted in this case is exemplary in its wisdom. We find no abuse of discretion. The trial court’s order is AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., specially concurs, and Hetherington, J., concurs. 107,578 — James Lawson, d/b/a AAA Lawson-Sirmon Bail Bonds, LLC, Plaintiff/Appellant, vs. Bruce Curnutt, in his Official Capacity as Sheriff of LeFlore County, Oklahoma, and the LeFlore County Sheriff’s Office, Bruce Curnutt, Sheriff, Defendants/Appellees. Appeal from the District Court of LeFlore County, Oklahoma. Honorable Ted A. Knight, Trial Judge. James Lawson, d/b/a AAA LawsonSirmon Bail Bonds, LLC, (Lawson), appeals by accelerated appeal process a August 27, 2009 Order which granted, in part, a motion to dismiss filed by Bruce Curnutt, in his official capacity as the Sheriff of LeFlore County, Oklahoma, and the LeFlore County Sheriff’s Office, Bruce Curnutt, Sheriff (Sheriff). His appeal raises two issues: (1) whether the trial court erred in denying declaratory or injunctive relief pursuant to 51 O.S.Supp.2005 § 24A.17(B) for Sheriff’s violation of the Open Records Act, 51 O.S.2001 § 24A.1, et seq., by failing to allow inspection of bench warrant information, and, (2) whether the trial court erred by finding Lawson’s cause of action moot when the requested information was provided after suit was filed. HELD: Section 24A.17 of Title 51 does not provide for future nonspecific, broad orders for compliance. To the extent this relief requests such an order for prospective compliance, the dismissal order below is affirmed. However, declarative issues were not mooted by provision of the requested information as an attachment to the motion to dismiss. Lawson is entitled to a trial on his declarative relief and Sheriff’s defenses thereto, and a determination of damages, plus an attorney fee if successful. The order granting the motion to dismiss is AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 107,683 — In the Matter of the Adoption of N.J.J., a minor child. Kimberly Matthews, Peti1366

tioner/Appellee, vs. Mindy Johnson, Respondent/Appellant. Appeal from the District Court of Muskogee County, Oklahoma. Honorable Thomas H. Alford, Judge. In an adoption proceeding commenced by Appellee, Appellant, the biological mother of N.J.J., seeks review of a trial court order adjudicating the child eligible for adoption without her consent. We conclude clear and convincing evidence supports the trial court’s findings based on 10 O.S.Supp. 2007 § 7505-4.2(B)(2) and (H), and no abuse of discretion has been demonstrated. The trial court’s best interest and parental rights termination findings are vacated. The order is affirmed in all other respects. AFFIRMED IN PART, VACATED IN PART. Opinion by Hetherington, J.; Buettner, P.J., concurs, and Hansen, J., dissents with opinion. 107,758 — Grace Living Center and Amity Care LLC, Petitioners, vs. Roseanne Bearden and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Grace Living Center, and its insurance carrier, Amity Care LLC (collectively, Employer), seek review of an order of a threejudge panel of the Workers’ Compensation Court which affirmed a trial court’s order adjudicating Claimant Roseanne Bearden to be a physically impaired person and permanently and totally disabled (PTD) as a result of her combined disabilities. We do not address the allegation of error concerning the admission of the vocational report because Employer failed to raise the issue of res judicata/claim preclusion below. Based on our review of the evidence, the trial court’s award is supported by competent evidence. The three-judge panel’s order is SUSTAINED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 107,843 — Keith Margerison and Robert McCullough, Plaintiffs/Appellants, vs. Charter Oak Homeowners Association, Defendant/ Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Mary Fitzgerald, Judge. Plaintiffs/Appellants Keith Margerison and Robert McCullough appeal summary judgment entered in favor of Defendant/Appellee Charter Oak Homeowners Association. Appellants and Association both sought summary judgment declaring whether Appellants’ gates could remain in a fence Association installed along its fencing easement on Appellants’ properties. The record on appeal shows disputed material facts on the issues of waiver and estoppel. We therefore REVERSE

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and REMAND for further proceedings. REVERSED AND REMANDED. Opinion by Buettner, P.J.; Hetherington, J., concurs, and Hansen, J., dissents with opinion. 107,847 —American Tire Distribution, Inc. and XL Specialty Insurance Co., Petitioners, vs. Charles Brandon Bailey and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioners (Employer) seek review of a Workers’ Compensation Court (WCC) order finding Respondent (Claimant) sustained a compensable cumulative trauma injury and ordering payment of temporary total disability (TTD) benefits, medical care and treatment. On August 22, 2006, Claimant was working on a lift pulling tires when his safety harness hooked on a rack and he swung into an I-beam. He filled out an accident report at the request of his boss. Claimant never sought medical treatment, worked the rest of that day and in fact worked at the same job lifting tires until August 2008 without limitations. Claimant’s testimony was clear the August 2006 accident caused no lasting injury. Claimant’s medical expert opined the work performed by Claimant for Employer was the major cause of the injury, impairment, and anatomical abnormality to his thoracic spine. The court’s denial of Employer’s statute of limitations defense and its finding that Claimant suffered compensable cumulative trauma injuries to his thoracic and cervical spine are SUSTAINED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. (Division No. 2) Wednesday, May 5, 2010 106,320 — In re C.L.D., an allegedly deprived child under the age of 18 years. State of Oklahoma, Petitioner/Appellee, vs. Bennie Lee Duke, Jr., Respondent/Appellant. Appeal from Order of the District Court of Jackson County, Hon. David Barnett, Trial Judge. In this deprived child proceeding, natural father, Bennie L. Duke, Jr., appeals from an order of the district court granting a petition for kinship guardianship and appointing maternal grandmother and her husband as permanent guardians for his minor son CLD. The record contains clear and convincing evidence supporting the order for a kinship guardianship. We find no error of law or abuse of discretion affecting the validity of the district court’s order. The evidence herein establishes that CLD’s best interests would be served by the kinship guardianship ordered by the district court. AFFIRMED. Opinion from Court Vol. 81 — No. 15 — 5/29/2010

of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. Friday, May 7, 2010 107,078 — Wagoner County Rural Water District No. 2, Wagoner County Rural Water District No. 7, Wagoner County Rural Water District No. 9, Cherokee County Rural Water District No. 11, Peggs Water Company and Tri-B Nursery, Inc., Plaintiffs/Appellants, vs. Grand River Dam Authority, Defendant/Appellee. Appeal from Order of the District Court of Craig County, Hon. Terry H. McBride, Trial Judge, dismissing Water Districts’ first amended petition for failure to state a claim on which relief could be granted. Each of the Water District plaintiffs is required to pay the Grand River Dam Authority for water. The Water Districts filed suit alleging that the GRDA does not have any rights to the water for which they are being charged. The GRDA was created by the State of Oklahoma and vested with the right to control, store, preserve and distribute the waters of the Grand River and its tributaries. 82 O.S.2001 § 861. Included among those rights is the right to sell water to the Water Districts. Section 862(a). No superior right held by the United States affects or supersedes the right of the GRDA to do so. Consequently, the Water Districts can state no claim entitling them to relief based on the facts alleged in their First Amended Petition. Affirmed. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. 106,895 — Fossil Creek Energy Corporation, Plaintiff/Interested Party, v. Cook’s Oilfield Services, Defendant/Third-Party Plaintiff/ Appellant, v. Admiral Insurance Company, Third-Party Defendant/Appellee. Appeal from the District Court of Cimarron County, Oklahoma, Hon. Greg A. Zigler, Trial Judge. Cook’s Oilfield Services appeals the trial court’s granting of summary judgment in favor of Admiral Insurance Company. Cook’s was the named insured on an insurance policy issued by Admiral. Cook’s made a claim on the policy which Admiral denied. We find genuine issues of material fact remain on the issue of whether coverage was properly denied, it was premature for the trial court to decide the issue of bad faith, and the trial court should apply Oklahoma law on remand. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concurs.

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Monday, May 10, 2010 107,824 — Ken Shepherd, Plaintiff/Appellant, v. Kawasaki USA, Defendant/ Appellee. Appeal from an Order of the District Court of Tulsa County, Hon. Mary F. Fitzgerald, Trial Judge. Shepherd appeals from the trial court’s judgment dismissing his lawsuit against Kawasaki USA on the grounds of forum non conveniens. Based on the review of the record before us and the applicable law, we find Kawasaki failed to timely raise forum non conveniens and thus waived its right to assert the doctrine. Because of this waiver, we find the conditional dismissal alternative, set forth in Binder v. Shepard’s Inc., 2006 OK 17, 133 P.3d 276, is not available to Kawasaki. The trial court erred by granting Kawasaki’s motion to dismiss and dismissing Shepherd’s lawsuit. The order granting the motion to dismiss should be, and hereby is, reversed. We remand to the trial court for further proceedings consistent with this Opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. Monday, May 17, 2010 107,425 — Cody A. Boyd, Petitioner, v. TXI, Old Republic Insurance Company, and the Workers’ Compensation Court, Respondents. Proceeding to review an order of a three-judge panel of the Workers’ Compensation Court, Hon. Mary A. Black, Trial Judge, affirming an order of the trial court denying Claimant compensation for disfigurement from a surgical scar which occurred as a result of a hernia repair. Claimant received six weeks of temporary total disability benefits for a hernia in the left groin. Claimant subsequently sought compensation for disfigurement for the surgical scar resulting from the hernia repair. The trial court denied Claimant’s request for disfigurement on the ground that compensation was not allowed under 85 O.S. Rev. Supp. 2005 § 22. A three-judge panel of the Workers’ Compensation Court affirmed the trial court’s order. Hernia injuries requiring surgical incisions are likely to result in some scarring as a natural consequence of the surgery itself. If the Legislature had intended to allow additional benefits for a non-disabling scar resulting from the surgical incision of a hernia repair, it could have done so. We are without authority to read into this statute words or meaning that do not appear on its face. The Workers’ Compensation Court’s interpretation of the statute is correct as a matter of law. SUS1368

TAINED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. 107,514 — In the Matter of A.K.D., A Deprived Child. Michael Dantrassy and Paula Dantrassy, Appellants, v. State of Oklahoma ex rel. Department of Human Services, Appellee. Appeal from an order of the District Court of Kay County, Hon. W. Lee Stout, Trial Judge, terminating Mother’s and Father’s parental rights to AKD. Although Mother and Father state two propositions of error on appeal, an issue not raised is dispositive–whether the trial court’s order terminating parental rights is fundamentally deficient. An order terminating parental rights must identify the specific statutory basis relied on by the court and must also contain specific findings required by that statutory provision. Because the termination order here does not identify a specific statutory basis for termination and does not state any findings supporting a specific statutory basis for termination, we must reverse the order of the trial court. Until the trial court corrects these deficiencies, we are unable to address the merits of Mother’s and Father’s appeal. We reverse the order of the trial court and remand with instructions to enter a proper final order correcting the deficiencies described in this Opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. 107,861 — David C. Nichols, Plaintiff/Appellant, v. Bridgestone Firestone North American Tire, LLC, Defendant/Appellee. Appeal from an order of the District Court of Oklahoma County, Hon. Vicki L. Robertson, Trial Judge, granting summary judgment in favor of Defendant. Plaintiff filed this lawsuit stating he suffered a workrelated injury and that his employment with Defendant was terminated on July 17, 2005, in violation of 85 O.S. Rev. Supp. 2005 § 5. Defendant filed a summary judgment motion asserting that Plaintiff filed his lawsuit outside the applicable limitations period. Defendant argues Plaintiff’s employment was terminated on July 15, 2005 and that Defendant had advised Plaintiff in writing that his employment would end on this date. The letter, however, does not inform Plaintiff that he would be officially terminated on July 15, 2005. The only document presented to confirm Plaintiff’s employment terminated on July 15, 2005, is a letter dated July 27, 2005, that lists July 15, 2005, as the date of termination. Plaintiff, on the other hand, presented evidence to support his assertion that his last day of work

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was July 17, 2003, that he was paid until this date, and that he continued to receive TTD payments through July 17, 2005. Because the date of termination remains a disputed fact, summary judgment may not be entered. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Monday, May 24, 2010 106,688 — Kanela Huff, individually, and as Kanela & Company, Plaintiffs/Appellants, v. MEPCO Insurance Premium Financing, Inc., National Administrative Solutions Corp. (NASC), and John T. Hull, individually, and d/b/a Hull’s Total Automotive, Defendants/ Appellees. Appeal from orders of the District Court of Oklahoma County, Hon. Vicki L. Robertson, Trial Judge, denying Kanela Huff’s (Huff) application to file surreply or to amend her responses to motions for summary judgment filed by NASC and MEPCO (Defendants), denying her motion seeking a new trial on the trial court’s grant of summary judgment in favor of NASC, and denying her motion to reconsider the denial of the motion for new trial. This lawsuit arises from Huff’s attempt to purchase a vehicle service contract/warranty. Huff claims that Defendants breached the warranty contract by failing to pay for repairs to her car covered by the contract. Huff also seeks to recover for fraud, deceit, conspiracy to commit fraud, constructive fraud, negligence, and breach of the duty to deal fairly and in good faith. Huff claims she was prejudiced by NASC’s failure to timely respond to discovery because legible computer screen shots were not provided until after her response to NASC’s motion for summary judgment was due. We reject Huff’s argument that summary judgment was improper. The screen shots were not “newly discovered evidence” because they had previously been submitted to the trial court with Huff’s application for leave to file a surreply and had expressly been considered by the trial court during oral argument on Defendants’ motions for summary judgment. Finding no basis in the undisputed evidence in the record on which to conclude that a contract existed between NASC and Huff, we affirm the trial court’s summary judgment in favor of NASC on Huff’s breach of contract claim. Because we find no contract was formed, it follows that Huff cannot establish her remaining claims. The trial court correctly granted Defendants’ summary judgment motions. We further find Huff failed to show any abuse of discretion in the denial of Vol. 81 — No. 15 — 5/29/2010

her application for leave to file surreply or to amend her response or in the denial of her posttrial motions. We accordingly affirm the orders of the trial court. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. 107,112 — The Boeing Company and American Manufacturing Mutual Insurance Company, Petitioners, vs. Devern C. Rodocker and The Workers’ Compensation Court, Respondents. Proceeding to review an Order of The Workers’ Compensation Court, Hon. Eric W. Quandt, Trial Judge. Employer seeks review of an order of the Workers’ Compensation Court, denying a motion to terminate temporary total disability (TTD) payments to Claimant. Employer claims that the trial court erred as a matter of law by awarding Claimant TTD benefits in excess of the maximum amount of TTD authorized by section 22(2). Employer’s argument that the 2005 amendment to section 22(2)(c) is a “clarifying amendment” is unpersuasive. We conclude that the trial court did not err in its application of 85 O.S.2001 § 22(2)(c), or in denying Employer’s motion to terminate Claimant’s TTD benefits. SUSTAINED. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. (Division No. 3) Thursday, May 6, 2010 105,749 — A. Wilson, Petitioner/Appellant/ Counter-Appellee, vs. A. Wilson, Respondent/ Appellee/Counter-Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Daman H. Cantrell, Judge. In this divorce proceeding, both Husband and Wife appeal the support alimony award and the division of marital property. Wife’s evidence sufficiently demonstrated her monthly living expense needs were in excess of her income. It was also evident that Husband’s earning capacity was substantially greater than Wife’s and he had the ability to pay support alimony. The award of permanent support alimony in the sum of $110,000.00 is affirmed. We hold the court abused its discretion when it credited Husband with the amounts he paid to Wife under the temporary order and during the pendency of the action. That portion of the trial court’s order is reversed. We reject Husband’s request for additional credits against the support alimony award. We hold the court did not abuse its discretion when it ordered Husband to pay Wife’s income tax liability on her temporary support alimony payments. Husband challenges the values assigned by the trial

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court to certain accounts which were awarded to him and also argues the court counted certain accounts receivable of his accounting practice twice in determining the assets. The court awarded an “equalizer judgment” to Wife in lieu of property. The parties stipulated to equally divide the net increase or decrease upon the date of division. On remand, the court is directed to determine the amount of any increase or decrease and recalculate the equalizer judgment accordingly and to eliminate the duplication. We find no marital funds were used to fund the Wachovia Securities, GAW account which was titled in Husband’s mother’s name. The court’s classification of this account was not an abuse of discretion. The court did not abuse its discretion in valuing the marital share of the annual profitability bonus net of its immediate income tax liability. We also find Husband sold the Alfacell stock in the ordinary course of business and placed the proceeds in the joint marital account. We see no abuse of discretion. Next, Wife should not have been penalized for filing a separate income tax return in 2004 and the court’s credit to Husband is reversed. Finally, because no question of law has been presented, we affirm the court’s denial for reinstatement of a contempt judgment against Husband. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 106,291 — Angela Edwards, Individually, and on behalf of Johnny G. Edwards, an incapacitated person, Plaintiff/Appellee, vs. Ardent Health Services, L.L.C., a Delaware corporation authorized to conduct business in the State of Oklahoma; AHS Wagoner Hsopital, L.L.C., d/ b/a Wagoner Community Hospital; and AHS Tulsa Regional Medical Center, L.L.C., d/b/a Tulsa Regional Medical Center, Defendants, and Oklahoma Health Care Authority, Defendant/ Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Mary Fitzgerald, Judge. This case arises from a medical negligence suit filed by Plaintiff/Appellee (Edwards). The lawsuit was settled and Plaintiff sought court approval. Defendant/Appellant, (OHCA), objected to the settlement on the basis that Plaintiff’s proposed distribution of settlement funds reduced the amount of OHCA’s lien for reimbursement of medical bills paid by Medicaid. The trial court adopted Plaintiff’s proposed apportionment and entered its order on July 23, 2008. On August 5, 2008, OHCA filed a Motion for New Hearing, asserting the court erred in reducing its lien amount. The court 1370

denied OHCA’s Motion for New Hearing without noting any specific basis for its decision. OHCA appeals and contends the ordered reduction of its lien was contrary to statute and case law and there was no clear and convincing evidence that might permit a reduction. OHCA also contends the formula used for reducing its lien was seriously flawed. After reviewing the record, we find there was no showing “by clear and convincing evidence” to warrant a “more limited allocation” or reduction of OHCA’s lien. The settlement amount is amply sufficient to pay Plaintiff’s attorney fee and satisfy OHCA’s lien in full. OHCA is entitled to recovery of the full amount of its lien. In addition, 63 O.S. Supp. 2008 §5050.1(D) expressly provides “damages for medical costs are considered a priority over all other damages and should be paid by the tortfeasor prior to other damages being allocated or paid.” OHCA’s statutory lien is superior to Plaintiff’s claim, of which settlement negotiations effectively establish the value. It is also superior to the ERISA lien. From the settlement proceeds, after payment of Plaintiff’s attorney fees and costs, OHCA is entitled to payment of $381,917.20, in full satisfaction of its lien. The reduction of OHCA’s lien is contrary to Oklahoma law, unsupported by the necessary evidence and an abuse of the trial court’s discretion. REVERSED AND REMANDED. Opinion by Mitchell, J.; Joplin, P.J., concurs; Bell, V.C.J., concurs in part and dissents in part. 106,719 — In Re: The Marriage of Rodney Wade Raper and Shelley D. Raper. Rodney Wade Raper, Petitioner/Appellee, vs. Shelley D. Raper, Respondent/Appellant. Appeal from the District Court of Mayes County, Oklahoma. Honorable Terry H. McBride, Judge. In this divorce proceeding, Respondent (Wife) appeals the trial court’s award of the cattle (specifically 300 calves and two breeding bulls) to Petitioner (Husband), challenges the court’s visitation order, and asserts error in the court’s denial of her request for child support arrearages. Wife’s argument regarding the cattle is premised upon her misunderstanding that the cattle are unencumbered property. Husband’s evidence clearly demonstrates that all the cattle are subject to substantial liens and therefore, the court’s consideration of any award of the livestock to her would also include its consideration of burdening her with the accompanying debt. The record clearly reflects the cattle business, which was Husband’s separate property owned prior to the marriage, declined in value during the marriage. There was no enhance-

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ment in value to divide. Next, Wife contends Husband’s home (where she lived during the marriage) is unsuitable for the child because he does not turn on his central heat/air conditioner and his use of the fireplace in the winter is hazardous to the child’s health because the child is asthmatic. She also points to the “insanity” of keeping loaded firearms in the home around a 16-month-old infant. The court set forth safety instructions in the Decree and Husband’s testimony reveals his willingness and agreement to provide a safe and suitable environment for the child. We find Wife’s claim for child support arrearage to be without merit. The trial court correctly denied her request. The Court’s Decree of Dissolution of Marriage is AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 107,095 — PML Holdings Group LLC and Accident Fund Insurance Co. of America, Petitioners, vs. Oliver R. Moss and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioners (Employer) seek review of an order of a Three-Judge Panel of the Workers’ Compensation Court (Panel) which affirmed the trial court’s decision to reopen the claim of Respondent (Claimant) on a change of condition for the worse and award additional temporary total disability (TTD) benefits. Employer contends the Panel erred in denying its limitations defense based on 85 O.S. Supp. 2005 §43(C). Claimant timely filed his motion to reopen within the three year limitations period of §43(C) when he filed his Form 9 on February 7, 2006. The Form 9 pleadings that followed were not merely successive motions to reopen. The record makes clear those pleadings were attempts by Claimant to obtain additional medical treatment after the failure of Claimant’s initial treatment plan — a plan directly emanating from the court-ordered medical examination entered during the course of Claimant’s 2006 motion to reopen. Moreover, the trial court never ruled on Claimant’s motion to reopen. We find no error. Employer also contends the Panel erred in finding Claimant sustained a change of condition for the worse. Claimant presented competent evidence — both lay and medical — to support his motion to reopen. In particular, Dr. Hastings concluded Claimant’s medical condition had worsened since his original trial and that such deterioration was due to the original work-related injury. The order of the Panel is SUSTAINED. Vol. 81 — No. 15 — 5/29/2010

Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,316 — The Incorporated City of Grove, Delaware County, Oklahoma, an Oklahoma municipal corporation, Plaintiff/Appellee, vs. Vernon Boyce, individually, and Boyce Investments, L.L.C., d/b/a All American Outdoor Advertising Company, Defendants/Appellants, and The Grand River Dam Authority, Defendant/Appellee. Appellants (Boyce) appeal from the trial court’s judgment permanently enjoining them from constructing billboards on certain property deemed to be within the city limits of Appellee (City of Grove). The subject property falls within the legal description of the real property identified in Ordinance No. 404. At issue is the interpretation of Ordinance No. 404. Boyce contends the Grand River Dam Authority (GRDA) had an interest in the property, specifically a flowage easement, prior to the time the property was annexed by City and that the property was included in that part of the described property that had been “acquired by” GRDA before the annexation. Thus, the subject property should now be considered de-annexed by virtue of the plain language of Ordinance No. 404. After being joined as a party, the GRDA specifically disclaimed any flowage easement on the subject property. Boyce’s own evidence supports the conclusion the easement is owned by the U.S. Government. We find the property is included within the corporate limits of the City of Grove and subject to the City’s regulatory control pursuant to its Ordinance No. 451, which prohibits the construction of billboards if the billboard is constructed on property lying within the city limits. There exists no genuine issue as to any material fact and the City of Grove is entitled to judgment as a matter of law. AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. Thursday, May 13, 2010 106,479 — Chad Edward Smith, Petitioner/ Appellee, vs. Jennifer Mary Smith, Respondent/ Appellant. Appeal from the District Court of Grant County, Oklahoma. Honorable Jack Hammontree, Judge. Appellant (Mother) appeals the trial court’s order modifying custody of the parties’ minor child from Mother to Appellee (Father). Mother also appeals the trial court’s award to Father of attorney fees and costs for psychological testing. This Court will not disturb the trial court’s decision regarding modification of custody unless the decision is clearly against the weight of the evidence so as to con-

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stitute an abuse of discretion. In reviewing such custody orders, deference will be given to the trial court since the trial court is better able to determine controversial evidence by its observation of the parties, the witnesses and their demeanor. After reviewing the evidence in the record, we conclude the trial court’s order modifying custody of the minor child to Father and awarding Father attorney fees and costs was not against the clear weight of the evidence and was not an abuse of discretion. The trial court’s orders are AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 106,548 — Jennifer Helen Hill (Now Teel), Petitioner/Appellant, vs. Larry Julian Hill, Respondent/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Lisa K. Hammond, Judge. In this postdivorce child custody modification proceeding, Appellant (Mother) appeals from the trial court’s order denying the parties’ motions to terminate joint custody of their two minor children. Both parties presented evidence indicating that they have historically had a very volatile and hostile relationship. According to the record, the parties are still unable to co-parent or agree upon a shared visitation schedule with the children. Joint custody is usually not appropriate where both parties object because joint custody depends upon the agreement of the parties and their mutual ability to cooperate in reaching shared decisions affecting the child’s welfare. The weight of the evidence demonstrated the joint custody arrangement is not working nor is it serving the children’s best interests. The trial court abused its discretion in refusing to terminate the joint custody. When joint custody is terminated, the trial court must proceed as if it is making an initial custody determination and award custody in accord with the best interests of the child, as if no such joint custody decree had been entered. REVERSED AND REMANDED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,125 —In the Matter of the Estate of David Stephen Schoenberg, deceased. The Estate of David Stephen Schoenberg, by and through its Special Administrator, Christopher Malone, Plaintiff/Appellant, vs. Shirley Schoenberg, an Individual; Linda Gamble, an Individual, Defendants/Appellees, and Bank of the West, f/k/a Commercial Federal Bank, a foreign for profit business corporation, Defendant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Larry A. Jones, Judge. In this action for conversion, Appellant appeals from 1372

the trial court’s summary judgment in favor of Appellees. Appellees’ motion was not granted on the merits of the case, but because Appellant failed to timely file a response opposing Appellees’ motion for summary judgment. Pursuant to Spirgis v. Circle K. Stores, Inc.,1087 OK CIV APP 45, 743 P.2 682, this was error. The court’s judgment is REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,141 — High Sierra Energy, L.P., a Delaware Limited Partnership, Plaintiff/Appellee, vs. David R. Hull, an individual, and Billy D. Hare, an individual, Defendants/Appellants. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Noma D. Gurich, Judge. In a dispute arising out of a multi-million dollar purchase/sale of multiple companies, Appellants appeal the trial court’s interlocutory order denying their motion to compel arbitration and for stay of the action pursuant to 12 O.S. Supp. 2006 §1879(A). Appellants contend the arbitration provision contained in the Purchase and Sale Agreement (PSA) entered into between Appellants and Appellee is applicable to all causes of action arising under or related to the PSA, including disputes relating to the Employment Agreements for Appellants. The PSA and Employment Agreements clearly and unambiguously incorporate and reference each other; therefore, the Agreements must be viewed together to determine the intent of the parties. In viewing Sections 12.7 and 12.14 of the PSA together with Sections 6 and 9 of the Employment Agreements, we find an ambiguity exists regarding the applicability of the arbitration provision. The Employment Agreements contain no reference to arbitration. The PSA itself contains conflicting provisions regarding whether “all disputes” arising under the PSA are subject to arbitration. If Section 12.7 of the PSA is read as an exception to the arbitration provision in Section 12.14, the arbitration clause would be rendered meaningless. Oklahoma law mandates that ambiguities are to be resolved in favor of arbitration, unless the court can say with “positive assurance” that the matter is not subject to arbitration. We cannot say with positive assurance that a dispute arising under the Employment Agreements is not subject to arbitration in accordance with Section 12.14 of the PSA. We reverse the order of the trial court overruling Appellant’s motion to compel arbitration and for stay of the action. REVERSED AND REMANDED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur.

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107,198 — Tracy R. Smith, Plaintiff/Appellant, vs. Robert F. Hines, M.D.; Robert F. Hines, M.D., Inc.; Oklahoma Sports Science & Orthopaedics, PLLC, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara Swinton, Judge. In this medical malpractice action, Appellant (Smith) appeals from the trial court’s summary judgment in favor of Appellees (collectively referred to as Dr. Hines). Smith alleged Dr. Hines’ care and treatment fell below applicable standards of care and as a result of the breach of that standard of care, she suffered permanent injury. Dr. Hines denied the arthroscopic procedure he performed injured Plaintiff’s femoral nerve because the surgical site is too remote from the hip or groin area where the femoral nerve was allegedly injured. On Plaintiff’s negligence claim, summary judgment was appropriate because Plaintiff failed to produce evidentiary material demonstrating that she can establish a prima facie case of medical negligence against Dr. Hines. Plaintiff’s second cause of action is based upon the application of res ipsa loquitur. Because Plaintiff failed to forecast evidence that her injury was probably caused by an instrumentality under Dr. Hines’ exclusive control, the doctrine of res ipsa loquitur is inapplicable as a matter of law. The evidence Plaintiff produced is speculative and insufficient as a matter of law to establish a causal connection from which an inference of Dr. Hines’ negligence may be drawn. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., concurs; Bell, V.C.J., dissents. Friday, May 21, 2010 106,366 — Viking Industries, Inc., d/b/a Viking Steel, Plaintiff/Appellee/ CounterAppellant, vs. Wal-Mart Stores, Inc., and WalMart Stores East, L.P., Defendants/Appellants/ Counter-Appellees, Flintco, Inc., Defendant/ Appellant/Counter-Appellee. Appeal from the District Court of Washington County, Oklahoma. Honorable Russell C. Vaclaw, Judge. In these consolidated appeals, Wal-Mart and Flintco seek review of the trial court’s orders granting judgment on jury verdict, attorney’s fees, prejudgment interest and costs to Viking. The trial court did not abuse its discretion and properly admitted the parole testimony to establish the parties’ intent. The trial court did not abuse its discretion in admitting the testimony of Viking’s expert on the issue of damages. We discern no error in instruction of the jury. We find competent evidence to support a conclusion that Viking was entitled to additional compensation for Vol. 81 — No. 15 — 5/29/2010

labor performed outside the scope of the parties’ agreements and the verdict for breach of an implied contract, the award of actual and punitive damages for fraud. The trial court possessed the power, upon polling of the jury, to correct the defect in the form of the verdict of which WalMart complains. We discern no fatal flaw in the return of the jury verdict as alleged. The trial court did not err in the assessment of prejudgment interest. That part of the trial court’s judgment granting attorney’s fees to Viking must be reversed and the cause remanded for a redetermination of attorney’s fees which might be allowed under §12 OS 936 or 42 OS §172, and those for which Oklahoma law grants no recompense. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Joplin, P.J.; Bell, V.C.J., and Hansen, J. (sitting by designation), concur. 106,514 — Hector Hernandez and Tonya Goesch, Plaintiffs/Appellees, vs. Roy D. Reed and Diana L. Reed, Defendants/Appellants, vs. Countrywide Home Loans, Inc., ThirdParty Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Linda G. Morrissey, Judge. Appellants seek review of the trial court’s decision quieting title to a disputed 8.4 foot strip of land in Appellees. Appellants also seek review of the trial court’s attorney fee award under 12 O.S. 2001 §1141.5(A)(4), contending the trial court erred as a matter of fact and law. Appellants and Appellees owned lots that adjoined and backed up to one another. The back 8.4 foot strip of Appellees’ platted property was not enclosed by the chainlink fence that enclosed the back of Appellees’ yard. Appellants used this strip of property as part of their backyard. In the summer of 2006, Appellees sent notices to Appellants asking that they discontinue use of the disputed 8.4 foot strip. Appellees filed a petition to quiet title on August 21, 2006. The trial court quieted title in Appellees. This appeal results. The appellate court must examine the trial court’s decision quieting title in one of the parties to determine if the trial court’s judgment is against the clear weight of the evidence. Appellees are record owners of the land and Appellants claim by adverse possession. Adverse possession requires clear and positive proof of all its constituent elements: 1) actual, 2) open, 3) notorious, 4) exclusive, and 5) hostile possession for the 6) fifteen year prescriptive term. The record supports Appellees’ position that Appellants never completely enclosed the disputed tract and never had exclusive control of it. Throughout Appellants’ forty

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year ownership of the adjoining lot, people could traverse openly over the disputed area. Appellants’ use of the area also changed throughout. The fixtures Appellants built and erected in this area were not constant. As a result, the bulk of Appellants’ claim of possession rested on general upkeep and installation of the landscaping details, basically treating the back of lot fourteen as Appellants’ property. The Oklahoma Supreme Court held that landscaping, which involved leveling dirt, establishing a lawn and erecting a fence, could support a hostile and adverse possession claim. However, Appellants never effectively enclosed the disputed area in this case, as witnesses testified to navigating the unobstructed alley for the better part of the last forty years. In this case, open, notorious, exclusive and hostile possession was not supported by clear and positive proof. Appellants also claimed the property by prescription. These claims are not favored and have four requirements: 1) a division of land; 2) a fence dividing the land, deviating from true property boundaries; 3) maintenance of the fence for a prescriptive period; and 4) each party using land on their side of fence only. Because the record showed Appellants did not enjoy exclusive use of the property, the trial court’s decision was not against the clear weight of the evidence. Appellants also appealed the attorney fee award. Whether an attorney fee is authorized by law presents a question of law, which is reviewed de novo. Appellants urge that Appellees’s 12 O.S. §1141.3 notice, required for an award of fees under §1141.5, does not apply to adverse possession cases. Section 1141.3 clearly applies where there is an instrument filed that clouds or casts an “apparent cloud” on one’s title to real property. The existence of the offending instrument is the key to application of §1141.3 and the corresponding attorney fees that are available under §1141.5. Appellees’ notice did not include references to an offending instrument, because such an instrument did not exist in this case. Statutes awarding attorney fees must be narrowly construed. A suit to determine the validity of an adverse possession claim is not contemplated within the attorney fee provisions outlined in §1141.5. For this reason, the trial court’s attorney fee award is reversed. For the reasons herein provided, the judgment of the trial court is AFFIRMED with respect to the trial court’s judgment quieting title to the disputed property in Appellees and REVERSED with respect to the trial court’s attorney fee award. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 1374

107,730 — Hodges Trucking Co. And Hodges Trucking Co. (Own Risk #13161), Petitioners, vs. Dwight Glen 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 an order of a Three-Judge Panel of The Workers’ Compensation Court (Panel), awarding Respondent (Claimant) continuing medical maintenance and denying Employer’s motion to reopen for a change of condition for the better. The trial court’s order did not specifically address Employer’s liability for Claimant’s continuing medical maintenance and its findings of fact could be interpreted to support either party. Upon review of the instant record, we find competent evidence supports the Panel’s decision to award Claimant continuing medical maintenance. The issue was properly before the Panel because Employer raised this issue on appeal. The order plainly finds some of Claimant’s injuries resulted from non-employmentrelated accidents. Because Employer is not responsible under the Act for any of Claimant’s continuing medical maintenance expenses that arose from non-compensable injuries, the Panel’s order cannot be interpreted as forcing Employer to provide Claimant with “blanket” medical treatment. SUSTAINED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. (Division No. 4) Wednesday, May 5, 2010 107,352 — David and Samantha Crook, Protestants/Appellants, v. State of Oklahoma, ex rel. Oklahoma Tax Commission, Respondent/ Appellee. Appeal from an order of the Oklahoma Tax Commission, Hon. Jay L. Harrington, Trial Judge. David and Samantha Crook (Protestants) appeal the denial of their tax protest by the Oklahoma Tax Commission (OTC). This cause arises from the tax consequences of the sale of the assets of Interstate Petroleum Corporation (Interstate). The purchase price of $14,963,000.00 was allocated by the parties in their contract as: Property and Equipment, $1,000,000.00; Employment and Non-Compete Agreement, $100,000.00; and Intangibles/goodwill, $13,863.000.00. Protestants claimed a deduction for capital gains received in the amount of $13,963,000.00, attributable to intangible property of Interstate sold as goodwill and the non-compete clause. After review, OTC issued an adjustment letter dated November 30, 2007. In part, the OTC adjusted the amended tax return by denying the $13,963,000.00 deduction. The OTC gave, as its reason for

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denial of the deduction: “Intangibles are not eligible for exclusion until January 1, 2008.” Protestants filed a timely protest, dated January 17, 2008. For the 2006 tax year, the applicable Oklahoma statute in force was 68 O.S. Supp. 2006, § 2358(F)(1) and (2). The statute permits a deduction for two types of property. The first is real property and that is not in issue in this appeal. The second is for the sale of tangible personal property. Protestants are seeking deduction for goodwill and a non-compete clause. Section 2358(F), as in force during the 2006 tax year, clearly and unambiguously did not authorize a deduction arising from the sale of intangible personal property. The property involved and sold here constitutes intangible personal property. The ALJ, and then the OTC, correctly denied the protest and the Order of the OTC is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. Thursday, May 6, 2010 107,878 — Chaparral Energy, L.L.C., Plaintiff/ Appellee, v. Technical Energy Services, Inc., Defendant/Appellant, Coppermark Bank f/k/a Americrest Bank f/k/a Guaranty First Bank f/k/a Guaranty Bank & Trust Co., a State Bank, Defendant. Appeal from an order of the District Court of Ellis County, Hon. Joe L. Jackson, Trial Judge, granting summary judgment in favor of Chaparral Energy, L.L.C. (Chaparral). Chaparral drilled a well under a joint operating agreement (JOA) with Technical in which significant additional expenses were incurred. When Technical refused to pay its proportionate share of the expenses, Chaparral filed a petition for breach of contract and to foreclose on a lien against Technical’s property interests. Technical counterclaimed for breach of contract and negligence. The trial court granted Chaparral summary judgment, finding the exculpatory clause in the JOA enforceable as a matter of law and applicable to the claims at issue. We agree with the trial court, and affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, Doug, P.J., concurs; Rapp, J., not participating. Friday, May 7, 2010 106,961 — Chilcutt Direct Marketing, Inc., an Oklahoma Corporation, Plaintiff/Appellant, vs. A Carroll Corporation, an Oklahoma Corporation, and James D. Hall, Jr., an Individual, Defendants/Appellees. Appeal from Order of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge, denying a motion by Vol. 81 — No. 15 — 5/29/2010

Plaintiff for new trial after the court overruled Plaintiff’s motion for an injunction against Defendants under Oklahoma’s Trade Secrets Act, 78 O.S.2001 §§ 85 through 94. Plaintiff was awarded a judgment for damages against Defendants based on a jury’s finding that Defendants had misappropriated a trade secret by using a customer list located on Plaintiff’s former employee’s “Outlook Address Book.” After the verdict, Defendants stipulated that they would return all relevant information to Plaintiff and keep only the former employee’s personal information. Plaintiff thereafter sought and was denied, injunctive relief, and unsuccessfully moved for new trial. The evidence supports the trial court’s implicit finding that Defendants no longer had access to the customer list and therefore no longer had the ability to misappropriate the list; and Plaintiff failed to demonstrate any overriding public interest or other exceptional circumstance justifying a royalty injunction. The court did not abuse its discretion by denying Plaintiff’s requests for injunction and new trial. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. Tuesday, May 11, 2010 107,582 — Justin Ray Davis, Plaintiff/Appellee, vs. Shanna Michelle Stone, f/k/a Shanna Michelle Davis, Defendant/Appellant. Appeal from the District Court of Pawnee County, Hon. Matthew D. Henry, Trial Judge, modifying a divorce decree by changing custody of the parties’ minor child from Mother to Father. The trial court adopted a parenting coordinator’s recommendations. The recommendations are within the scope of the coordinator’s statutory (43 O.S. Supp. 2009 §§ 120.1 through 120.5) or courtapproved authority. We are unable to conclude the trial court placed an undue or unjustified reliance upon the coordinator’s report. The court’s conclusions are not against the clear weight of the evidence. Also, Mother’s due process rights were not violated. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. 107,033 — Custom Radio Corporation, Plaintiff/Appellee, vs. Passenger Transportation Specialists, Inc., d/b/a Red Carpet Charters, Defendant/Appellant. Appeal from Order of the District Court of Oklahoma County, Hon. James B. Croy, Trial Judge, granting Plaintiff’s “Motion to Correct Domesticated Foreign Judgment to Reflect the Correct Name of the Defendant.” Plaintiff obtained a judgment in Indiana

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against Red Carpet Charters, Inc. The trial court did not err in granting Plaintiff’s motion correcting the Indiana judgment, and finding that Plaintiff incorrectly obtained judgment against Red Carpet Charters rather than Passenger Transportation Specialists, which the court found was doing business as Defendant’s customer and judgment debtor. PTS was involved in the same transaction upon which the suit was based, it received timely notice of the suit, it was not prejudiced in maintaining its defense, and it knew or should have known that, but for Plaintiff’s mistake in properly identifying it, it would have been named in the case. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs; and Rapp, J., not participating. 106,905 — Dusty Sanderson and Kuhn Oil Co., Inc., Plaintiffs/Appellants, vs. Yale Oil Association, Greghol Ca. Ltd. Partnership, Parker E. Bloomer Family Partners, Limited Partnership, and Solon Bloomer, Defendants/Appellees. Appeal from Order of the District Court of Woodward County, Hon. Ray Dean Linder, Trial Judge, granting judgment in favor of Defendants on the ground that Plaintiffs’ claims for an accounting and cash balancing of an underproduced interest in a well were barred by the statute of limitations. The trial court erroneously determined that the statute of limitations on Plaintiffs’ claims began to run when they purchased their underproduced interest; however, the statute did not begin to run until Plaintiffs’ trust relationship with Defendants terminated. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. 107,822 — Thomas R. Nelson, Plaintiff/Appellant, vs. Mercy Health Center, Inc., an Oklahoma corporation, Defendant/Appellee, and Robert Ricketson, M.D., and Edmond Spine Center, Inc., an Oklahoma corporation, Defendants. Appeal from the District Court of Oklahoma County, Hon. Twyla Mason Gray, Trial Judge, dismissing Plaintiff’s malpractice suit under authority of District Court Rule 9(b), 12 O.S.2001, Ch.2, App. The trial court must undertake a two-step analysis before granting a Rule 9(b) dismissal: first, has the plaintiff failed to show good cause why the cause should not be dismissed; and, second, has the defendant been prejudiced by the plaintiff’s failure to prosecute. Appellee failed to present any proof of actual prejudice. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division IV, by 1376

Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. Wednesday, May 12, 2010 106,409 — Lumber 2, Inc., Plaintiff/Appellee, vs. Illinois Tool Works, Inc. d/b/a Hobart Welders and Miller Electric Mfg. Co., Defendant/Appellant, and Don Massie Company, Inc. d/b/a Premier Sales, Defendant. Appeal from the District Court of Oklahoma County, Hon. Bryan C. Dixon, Trial Judge, denying Defendants’ motion for judgment n.o.v./new trial, following a jury verdict awarding damages to Plaintiff for breach of contract and for violations of the Oklahoma Consumer Protection Act and the Oklahoma Antitrust Reform Act. Plaintiff is a retailer, and Defendant is a wholesale supplier. Plaintiff failed to present sufficient proof of violation of Oklahoma’s Antitrust Reform Act, 79 O.S.2001 §§ 201 through 212. This is not a case of price discrimination, refusal to deal, or restraint of trade. Also, Plaintiff is not entitled to damages under Oklahoma’s Consumer Protection Act, 15 O.S.2001 and Supp. 2009 §§ 751 through 764.1, because it is not a “consumer” protected by the Act. Defendants waived any error regarding the breach of contract verdict. AFFIRMED IN PART AND REVERSED IN PART. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, J., concurs and Fischer, J., concurs in part and concurs in result in part. 106,969 — Patricia Rodriguez, Plaintiff/Appellant, v. Homeland Acquisitions, Defendant/ Appellee. Appeal from an Order of the District Court of Kay County, Hon. D.W. Boyd, Trial Judge, overruling Rodriguez’s motion for new trial after judgment on a jury verdict in favor of the defendant. The sole issue on appeal is whether the trial court abused its discretion in overruling Rodriguez’s motion for new trial. Rodriguez claims that, during voir dire, two jurors failed to reveal that they had been involved in prior litigation when asked about the issue by the trial court. Rodriguez claims that these omissions deprived her of an opportunity to question the two jurors about the effect of previous lawsuits on their ability to impartially consider the case, and that she is therefore entitled to a new trial. Rodriguez has failed to show that a correct response from the jurors would have provided a valid basis for a peremptory challenge for cause. Further, the record does not support Rodriguez’s allegation that the jurors gave an incorrect answer to the question of whether they had been involved in prior litigation. The trial court did not err in denying Rodriguez’s motion for new

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trial. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. Monday, May 17, 2010 104,614 — In the Matter of K.H., alleged deprived child. Heather D. Holland, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Pittsburg County, Hon. Bill Layden, Trial Judge, granting judgment on a jury verdict terminating Appellant’s parental rights. The trial court did not abuse its discretion by denying Appellant’s request for a continuance due to Appellant’s absence, because we are unable to conclude that her appearance at trial was indispensable to a fair trial. The trial court did abuse its discretion in allowing the child’s father to opine that Appellant’s parental rights should be terminated, but this error was harmless, given that substantial evidence clearly and convincingly established that Appellant’s parental rights should be terminated. Mother stipulated to the allegations set forth in the deprived petition, and made specific admissions regarding those allegations. The record and the witnesses established that Appellant had not corrected the conditions leading to the adjudication, that she had been given ample time to do so, and that it was in the child’s best interest that her parental rights be terminated. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. Wednesday, May 19, 2010 107,625 — John Kondrach, Petitioner/Appellant, v. Halliburton Energy Services, Inc., Ace American Ins. Co. and the Workers’ Compensation Court, Respondents/Appellees. Appeal from an order of a three-judge panel of the Workers’ Compensation Court, Hon. Michael J. Harkey, Trial Judge, affirming the trial court’s denial of Claimant’s claim of injury to his back and neck. Claimant asserted work-related injury to his left shoulder, back and neck. Employer stipulated that a work-related injury to Claimant’s left shoulder was reported, but denied any injury to the back and neck. On appeal, Claimant argued his claim should be granted because only he testified; his was the only medical evidence introduced; and there

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was no conflicting medical evidence. Employer responded by contending Claimant simply failed to meet his burden of proof. We find that the trial court could conclude, based on the record presented, that Claimant failed to meet his burden of proof, and sustain the decision of the three-judge panel. SUSTAINED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. 107,223 — In the Matter of the Estate of Laura Inez Nettleton, Deceased. Marilyn Kipps, Appellant, v. Arthur Eugene Nettleton, Personal Representative, Appellee. Appeal from an order of the District court of Lincoln County, Hon. Paul M. Vassar, Trial Judge, denying Appellant’s request for letters of special administration. Appellant petitioned to be appointed special administrator to pursue a claim for wrongful death on behalf of her deceased mother when the Personal Representative of the Estate failed to do so. The trial court did not err in denying Appellant’s petition, but in light of the controversy between an heir, devisee or legatee and the personal representative of an estate, the better procedure for the probate court, upon proper application, is to conduct an evidentiary hearing to determine the value of the claim, its probability of success and what, if any, estate assets should be spent pursuing the claim. AFFIRMED AND REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. Thursday, May 20, 2010 107,625 — Atkinson, Haskins, Nellis, Holeman, Phipps, Brittingham & Gladd, an Oklahoma Professional Corporation, Plaintiff/ Appellee, v. Vector Securities, Inc., an Oklahoma corporation; Vector Properties, Inc.; and James W. Dill, Defendants/Appellants. Appeal from an Order of the District Court of Tulsa County, Hon. Daman Cantrell, Trial Judge, granting summary judgment in favor of Plaintiff. This appeal was not commenced within 30 days after the trial court’s order became appealable. APPEAL DISMISSED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs; and Rapp, J., not participating.

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Court Qualified Former OSBI Agent FBI National Academy

Arthur D. Linville (405) 636-1522 INTERESTED IN PURCHASING PRODUCING & NON-PRODUCING Minerals; ORRI; O & G Interests. Please contact: Patrick Cowan, CPL, CSW Corporation, P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) 755-7200; Fax (405) 755-5555; E-mail: pcowan@cox.net. OF COUNSEL LEGAL RESOURCES — SINCE 1992 — Exclusive research & writing. Highest quality: trial and appellate, state and federal, admitted and practiced U.S. Supreme Court. Over 20 published opinions with numerous reversals on certiorari. MaryGaye LeBoeuf (405) 728-9925, marygaye@cox.net.

EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL Fitzgerald Economic and Business Consulting Economic Damages, Lost Profits, Analysis, Business/ Pension Valuations, Employment, Discrimination, Divorce, Wrongful Discharge, Vocational Assessment, Life Care Plans, Medical Records Review, Oil and Gas Law and Damages. National, Experience. Call Patrick Fitzgerald. (405) 919-2312. Brief Writing, Appeals, Research and Discovery Support. Fifteen years experience in civil litigation. Backed by established firm. Neil D. Van Dalsem, Taylor, Ryan, Schmidt & Van Dalsem P.C. (918) 749-5566, nvandalsem@trsvlaw.com. BUSINESS VALUATIONS: Marital Dissolution * Estate, Gift & Income Tax * Family Limited Partnerships * Buy-Sell Agreements * Mergers, Acquisitions, Reorganization & Bankruptcy * SBA/Bank Required. Dual Certified by NACVA and IBA, experienced, reliable, established in 1982. Travel engagements accepted. Connally & Associates, P.C. (918) 743-8181 or bconnally@ connallypc.com. FREELANCE BOOK LAWYER — with highest rating and with 25+ years’ experience on both sides of the table is available for strategic planning, legal research and writing in all state and federal trial and appellate courts and administrative agencies. Admitted and practiced before the United States Supreme Court. Janice M. Dansby, 405-833-2813, jdansby@concentric.net.

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OKC ATTORNEY HAS CLIENT INTERESTED in purchasing producing and non-producing, large or small, mineral interests. For information, Contact Tim Dowd, 211 N. Robinson, Suite 1300, OKC, OK 73102, (405) 2323722, (405) 232-3746 – fax, timdowd@eliasbooks.com.

OFFICE SPACE SOUTH OKC OFFICE SPACE in a building complex surrounding a tranquil park-like setting in the Willowbrook Gardens Professional Building complex located on South Walker Avenue just south of I-240. No longterm lease required. Variety of space available from as little as one office up to as much as 5,000 square feet. Renovated in 2007. Carpeted floors, offices range from small/moderate to large, large reception area, built-ins, kitchen, and offices with a view! Call (405) 239-3800. MIDTOWN TULSA OFFICE SPACE with reception services available. Office equipment such as fax machine, copiers, telephones, etc. are included. Office has built in shelves on two walls, two windows, and a private entrance. If interested, please call (918) 747-9977.

OFFICE SHARE 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.

POSITIONS AVAILABLE 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. BUSY TULSA LAW FIRM SEEKS A 1-3 YEAR ATTORNEY with experience in business transactions, oil & gas and/or real estate. Send resumes to lawoffice2315@yahoo.com.

The Oklahoma Bar Journal

Vol. 81 — No. 15 — 5/29/2010

POSITIONS AVAILABLE

AV RATED FIRM SEEKS EXPERIENCED CIVIL LITIGATION ATTORNEY with 3 to 8 years experience for associate or of-counsel position in new satellite office in Yukon. The position is focused on general litigation and civil rights. A candidate with an existing practice in the Yukon/Mustang area will be favorably considered. Salary is commensurate with experience. Travel is required. Send resume, writing sample and salary requirements via email to Steve@czwglaw.com or by mail to: Collins, Zorn & Wagner PC, 1703 Professional Circle, Suite 201, Yukon, OK 73099.

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.

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. THE LAW FIRM OF HOLDEN & CARR SEEKS AN EXPERIENCED LITIGATOR for the firm’s Oklahoma City office. With offices in Tulsa, Oklahoma City and Dallas, Holden & Carr is an insurance defense firm with a broad client base and a strong, growing presence in Oklahoma City. The firm seeks a partner-level attorney with 10 years of experience or more in litigation and, in particular, jury trial practice. Proven track record in business development required. Those seeking to ascend to leadership and build on the foundation for the firm’s Oklahoma City operations are encouraged to inquire. The firm strives to be the best and requests nothing less from its members, therefore strong trial practice skills are required. Salary to be commensurate with experience. All applications will be kept in the strictest confidence. To inquire, please contact JohnWelch@HoldenLitigation.com. ASSOCIATE ATTORNEY: Brown and Gould PLLC, a downtown Oklahoma City litigation firm has an immediate position available for an attorney with 3-5 years of litigation experience. A qualified candidate must have solid litigation experience, including a proven aptitude for performing legal research, drafting motions and briefs and conducting all phases of pretrial discovery. Salary is commensurate with experience. Please send resume, references, writing sample and law school transcript to tina@browngouldlaw.com. LEGAL SECRETARY/PARALEGAL – Seeking individual for busy south OKC office; experience in estate planning, probates and civil litigation preferred. Pay commensurate with experience and provides benefits. Send resume to “Box C,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. LEGAL ASSISTANT NEEDED for very busy law office in Yukon. Experience in civil litigation preferred. Salary commensurate with experience. Please send resume and references via email to Steve@czwglaw.com or by mail to: Collins, Zorn & Wagner PC, 1703 Professional Circle, Suite 201, Yukon, OK 73099.

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ESTATE PLANNING/TRUSTS ATTORNEY – OKLAHOMA CITY: Attorney with 8-10+ years or more in estate planning and trusts with established client base that would like to continue growing practice under the solid leadership of an existing firm. Very competitive compensation. Please e-mail Word resume and salary requirements to: tamar@tmsrecruiting.com. COMMERCIAL LITIGATION ATTORNEY – OKLAHOMA CITY: Attorney with 8+ years or more in commercial/business litigation. Must have strong 1st chair and Federal Court exp. Securities/Fraud Litigation exp. preferred. Billable hours 2000 annually. Very competitive compensation. Please e-mail Word resume & salary requirements to: tamar@tmsrecruiting.com. SMALL DOWNTOWN OKC LAW FIRM seeks fulltime legal assistant for WC defense. Will provide advanced administrative support for two attorneys. Position requires strong organizational and interpersonal skills as well as ability to manage client demands appropriately. Ability to meet deadlines, prioritize, and multitask. Candidate must have competency in Microsoft Office Suite. Requirements: H.S. Diploma and 5 years of experience in legal field. Workers’ compensation experience a plus. Resumes should be e-mailed to thad@groomlawfirm.com and judy@groomlawfirm.com. RESEARCH ATTORNEY: REGIONAL (TX, OK, MO, ARK) fast growing AV rated insurance defense firm seeks research attorney with 5-20 years solid litigation and research experience to join Tulsa office. Must be self-motivated, very detailed with proven excellent writing skills. Writing samples and references required. E-mail to JohnWelch@HoldenLitigation.com. MAPLES LAW FIRM IS ACCEPTING RESUMES for an associate attorney. Two to five years general litigation experience is a must. Applicant must be able to immediately assume responsibilities in brief writing, answering discovery, court appearances and deposition. Please send resumes and salary requirements via facsimile (405) 488-1485 or e-mail ray@mapleslawokc.com. 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.

The Oklahoma Bar Journal

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The Oklahoma Bar Journal

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P.O. Box 20117 Oklahoma City, OK 73156 • E-mail: judgegraves@cox.net • Ph: 973-4141

Lawyers supporting Judge

BiLL graves for re-eLection We, the lawyers listed below, support Judge Bill Graves for re-election to the District Court bench in Judicial District #7, Office No. 10, Oklahoma County

Ethan Allen, III John Bado David Bailey Mark Bailey F. Smith Barnes David Bedford Lynn Bilodeau Chris Box Irven Box Kevin Butler Joel Carson Brent Coldiron Steve Coleman Tony Coleman Melvin Combs, Jr. Kelley Cornelius Jerry Crabb Rick Denker Orenthel Denson Larry Derryberry Steven Ditto Gerald Durbin II Jon Echols Richard Farber Kent Frates Julie Fulton Brent Galyon Edmond Geary Merle Gile John Gile Gary Gingrich John Goodman Terry Gust Robert Hall

Mark Henricksen David High Steven Holden Lee Holmes Mark Holmes Thomas Hosty David Howell Wendy Huff Brady Hunt Howard Israel Jay Israel Donna Jackson Robert Jackson Shawn Jefferson Robert Johnston Stephen Jones Gerald Kelley Michael Kirschner David Kisner Kevin Krahl Paul Lacy Jim W. Lee Steven Lewis Silas Lyman Mack Martin Rick Martin Michael McBride Kent Meyers Terrill Monks Chad Moody Dan Murdock Robert Naifeh, Jr. Tracy Neisent Jim Paddleford

Kenneth Peacher Jack Petty Craig Pitts James Posey Martin Postic, Jr. William P. Porter W. Devin Resides Barry Rice L. M. Rieves Richard Rose Mitchell D. Rozin Thomas A. Ryan Anita Sanders Gary Shores Barry Simms, Jr. Kyle Swisher Mike Tesio, Jr. Michael Thom Michael Tinney Ray Tompkins Sam Townley H. Trattner Rex Travis Mike Tullius Charles Turpin Rick Vallejo Tom Wakely Travis Watkins William Whitehill, Jr. Beau Williams Phil Winters Ramona Wolf Daniel Woska Bob Wyatt, IV

(THE ABOVE IS A PARTIAL LIST) Paid for by Friends of Judge Bill Graves, P.O. Box 20117 Oklahoma City, OK 73156