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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 NOVEMBER 2010 OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Andrea Braeutigam (405) 640-2819 17 – 19 OBA 106th Annual Meeting; Crowne Plaza Hotel, Tulsa 17 OBA Mock Trial Committee Meeting; 5:45 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Contact: Judy Spencer (405) 755-1066 25 – 26 OBA Closed – Thanksgiving Day Observed 30 OBA Uniform Laws Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Fred Miller (405) 325-4699 15
DECEMBER 2010 2 7 10 15 16 17 18
OBA Law-related Education Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack G. Clark (405) 232-4271 OBA Appellate Practice Section Meeting; 2:30 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Allison Thompson (405) 840-1661 OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly K. Hays (918) 592-2800 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 OBA Access to Justice Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Kade A. McClure (580) 248-4675 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Jack Brown (918) 581-8211 OBA Board of Governors Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: John Morris Williams (405) 416-7000 OBA Young Lawyers Division Board of Directors Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Molly Aspan (918) 594-0595 For more events go to www.okbar.org/calendar
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Oklahoma Bar Association
table of
contents November 13, 2010 • Vol. 81 • No. 30
page 2523 Events Calendar 2526 Index to Court Opinions 2529 Supreme Court Opinions 2549 Court of Criminal Appeals Opinions 2560 Annual Meeting 2563 OBA Board of Governors Vacancies 2564 2011 Committe Sign-up Form 2566 Court of Civil Appeals Opinions 2636 Disposition of Cases Other Than by Publication
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Index To Opinions Of Supreme Court 2010 OK 76 HENRYETTA MEDICAL CENTER, Petitioner, v. PEGGY L. ROBERTS and THE WORKERS’ COMPENSATION COURT, Respondents. No. 107,634............................... 2529 2010 OK 69 IN THE MATTER OF BTW, Deprived child under the age of eighteen (18) years KIM L. WEBSTER Appellant v. STATE OF OKLAHOMA ex rel. HOLLIS E. THORP, District Attorney of Woodward County; BTW, a Deprived Child; and BETTY WARD, Foster Parent Appellees No. 106,865................................................................................ 2529 2010 OK 70 In the Matter of the Application of Sylvia McCormick Spilman for Expungement and Sealing of Records. Sylvia McCormick Spilman, Petitioner, v. Oklahoma Bar Association, Respondent. No. 108,544............................................................................................ 2529 2010 OK 78 CHARLES DAVIS, Appellant, v. MARTIN MARIETTA MATERIALS, INC.; MERIDIAN AGGREGATES COMPANY; VENTURE DRILLING COMPANY; and BUCKLEY POWDER COMPANY, Appellees. No. 108,477......................................................... 2530 2010 OK 77 In the Matter of the Reinstatement of: MARYLINN M. GRAVIS to membership in the Oklahoma Bar Association and to the Roll of Attorneys. SCBD No. 5642............ 2531 2010 OK 79 IN THE MATTER OF THE REINSTATEMENT OF LAYTON M. PERRY, JR. TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION. SCBD No. 5591................. 2532 2010 OK 73 SURETY BAIL BONDSMEN OF OKLAHOMA, INC., an Oklahoma corporation, CATHY BOYD, an individual, Plaintiffs, INTERNATIONAL FIDELITY INSURANCE CO., a New Jersey corporation, ALLEGHENY CASUALTY COMPANY, a Pennsylvania corporation, and AMERICAN SURETY COMPANY, an Indiana corporation, Plaintiff Intervenors/Appellants, v. THE INSURANCE COMMISSIONER OF THE STATE OF OKLAHOMA, Defendant/Appellee, and CARISA CARRASCO, Defendant Intervenor/Appellee. No. 106,025............................................................................... 2535 2010 OK 75 PONCA IRON & METAL, INC., OWN RISK #11794, Petitioner/Appellant, v. JACKIE WILKINSON and THE WORKERS’ COMPENSATION COURT, Respondents/Appellees. No. 106,164.......................................................................................................... 2541 2010 OK 74 CHARLES MCGUIRE, Petitioner-Appellant, v. N. GLANTZ & SON, LLC, NATIONAL FIRE INSURANCE COMPANY OF HARTFORD and THE WORKERS’ COMPENSATION COURT, Respondents/Appellees, No. 105,948 . ........................................ 2543
Index To Opinions Of Court of Criminal Appeals 2010 OK CR 24 MICHAEL DEWAYNE SMITH, Petitioner, -vs- STATE OF OKLAHOMA, Respondent. No. PCD-2010-150....................................................................................................... 2549
Index To Opinions Of Court of Civil Appeals 2010 OK CIV APP 98 TIFFANY THOMAS PHILLIPS, on behalf of C.T., Plaintiff/Appellee, vs. JUSTIN LYNN WILLIAMS, Defendant/Appellant. Case No. 107,285........................ 2566 2010 OK CIV APP 109 SHARON PHELPS, Plaintiff/Appellee, vs. AUSTON CLARK, individually, and d/b/a CLARKS AT YOUR SERVICE, L.L.C., Defendants/Appellants. Case No. 107,421...................................................................................................................... 2570 2526
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2010 OK CIV APP 92 DAVID M. VRANESEVICH, Plaintiff/Appellant, vs. PEARL CRAFT, Defendant/Appellee. Case No. 106,541.......................................................................... 2571 2010 OK CIV APP 99 GEORGE ALLEN BEERS, Plaintiff/Appellant, vs. DOROTHY HILLORY, Defendant, and NORTHLAND INSURANCE COMPANY, a Minnesota corporation, Defendant/Appellee. Case No. 107,411............................................................................. 2574 2010 OK CIV APP 96 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. Case No. 107,141....................................................................... 2582 2010 OK CIV APP 97 BETTY WEST, Plaintiff/Appellant, vs. STEVE SPENCER d/b/a SPENCER’S SMOKEHOUSE & BARBEQUE, and D. WAYNE BREWER d/b/a, 23 POST PLAZA COMPANY, Defendants/Appellees. Case No. 107,156..................................... 2585 2010 OK CIV APP 94 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 DONALD 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 CHAPERNEY 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. Case No. 107,035............................ 2588 2010 OK CIV APP 93 CUSTOM RADIO CORPORATION, Plaintiff/Appellee, vs. PASSENGER TRANSPORTATION SPECIALISTS, INC., d/b/a RED CARPET CHARTERS, Defendant/Appellant. Case No. 107,033............................................................................ 2591 2010 OK CIV APP 95 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, v. GRAND RIVER DAM AUTHORITY, Defendant/Appellee. Case No. 107,078....................... 2594 2010 OK CIV APP 102 J.D.D. & J.R.F., Appellants, vs. STATE OF OKLAHOMA, Appellee. Case No. 108,031................................................................................................................................ 2600 2010 OK CIV APP 104 IN RE THE MARRIAGE OF DOAN-UYEN THI LE, Petitioner/ Appellee, vs. THANG Q. NGUYEN, Respondent/Appellant. Case No. 105,919................... 2603 2010 OK CIV APP 110 RONALD STOLL, Plaintiff/Appellant, vs. CHONG LOR XIONG and MEE YANG, Defendants/Appellees. Case No. 107,880...................................................... 2609 2010 OK CIV APP 103 JODI L. COMPTON, Appellant, vs. STATE OF OKLAHOMA, Appellee. Case No. 108,160.............................................................................................................. 2612 2010 OK CIV APP 108 KENNETH L. SIMINGTON, Plaintiff/Appellee, vs. OKLAHOMA DEPARTMENT OF REHABILITATION SERVICES and OKLAHOMA MERIT PRO TECTION COMMISSION, Defendants/Appellants. Case No. 106,820.................................... 2615
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2010 OK CIV APP 107 STATE OF OKLAHOMA, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellee, v. HAZEL LORRAINE EVANS, Defendant/Appellant, and THE ROGERS COUNTY TREASURER, Defendant. Case No. 106,733............................. 2619 2010 OK CIV APP 105 TERESA TORTORELLI and ROBERT L. TORTORELLI, Plaintiffs/ Appellants, vs. MERCY HEALTH CENTER, INC., KIMBERLY SMITH, M.D., OKLAHOMA ORTHOPEDICS, INC., d/b/a OKLAHOMA ORTHOPEDICS INCORPORATED, and ISOTIS ORTHOBIOLOGICS, INC., Defendants/Appellees, GENSCI REGENERATION LABORATORY SCIENCES, INC., ISOTIS, S.A., successor to GENSCI ORTHOBIOLOGICS, INC., THE ORTHOBIOLOGICS TECHNOLOGY COMPANY, and SMC VENTURES, INC., successor to GENSCI REGENERATION SCIENCES, INC., Defendants. Case No. 106,073............................................................................................... 2620 2010 OK CIV APP 106 IN RE THE MARRIAGE OF BOECKMAN. MELODY BOECKMAN, Petitioner/Appellee, vs. BRIAN BOECKMAN, Respondent/Appellant. No. 106,442.................................................................................................................................................. 2631 2010 OK CIV APP 111 GEFCO and FIDELITY and GUARANTY INSURANCE COMPANY, Petitioners, v. MURLYN POOL and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 108,326....................................................................................................... 2634
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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 76 HENRYETTA MEDICAL CENTER, Petitioner, v. PEGGY L. ROBERTS and THE WORKERS’ COMPENSATION COURT, Respondents.
caption that follows the term “years”. The caption now shown at page 1 of the manuscript on file shall read as follows: 2010 OK 69
No. 107,634. October 25, 2010
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA
¶0 ORDER DENYING CERTIORARI AND APPROVING OFFICIAL PUBLICATION
IN THE MATTER OF BTW, Deprived child under the age of eighteen (18) years
¶1 Petitioner’s petition for certiorari to the Oklahoma Court of Civil Appeals is DENIED.
No. 106,865
¶2 The motion by Respondent, Peggy L. Roberts, for the opinion of the Court of Civil Appeals to be published in the official reporter and accorded precedential value is GRANTED. ¶3 The opinion of the Oklahoma Court of Civil Appeals herein filed on July 7, 2010, is approved by the Oklahoma Supreme Court for publication in the official reporter and shall be accorded precedential value. 20 O.S.2001 § 30.5; 12 O.S. 2001 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.200(c). ¶4 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 25TH DAY OF OCTOBER, 2010.
DONE BY ORDER OF THE SUPREME COURT THIS 14th DAY OF OCTOBER, 2010. /s/ James E. Edmondson CHIEF JUSTICE 2010 OK 70 In the Matter of the Application of Sylvia McCormick Spilman for Expungement and Sealing of Records. Sylvia McCormick Spilman, Petitioner, v. Oklahoma Bar Association, Respondent. No. 108,544. October 20, 2010 ¶0 CORRECTION ORDER
James E. Edmondson /s/ CHIEF JUSTICE CONCUR: EDMONDSON, C.J., KAUGER, WATT, COLBERT, REIF, JJ. DISSENT: TAYLOR, V.C.J., HARGRAVE, WINCHESTER, JJ. 2010 OK 69 IN THE MATTER OF BTW, Deprived child under the age of eighteen (18) years KIM L. WEBSTER Appellant v. STATE OF OKLAHOMA ex rel. HOLLIS E. THORP, District Attorney of Woodward County; BTW, a Deprived Child; and BETTY WARD, Foster Parent Appellees No. 106,865. October 14, 2010 ORDER REVISING OPINION The court’s opinion, filed herein on 5 October 2010, is revised by omitting that portion of the Vol. 81 — No. 30 — 11/13/2010
In all other respects the 5 October 2010 opinion shall remain unchanged.
¶1 The Opinion of the Court filed herein on October 5, 2010, shall be corrected as follows. 1. In paragraph number 16 (¶16) of the opinion the sentence stating: However, Spilman, like all lawyers who satisfy their respective burdens upon admission or reinstatement, do not thereby also satisfy their continuing burden to actually conform to the high standards required by members of the Bar. Shall be corrected to state: However, Spilman, like all lawyers who satisfy their respective burdens upon admission or reinstatement, must also satisfy the continuing burden to actually conform to the high standards required by members of the Bar.
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¶2 The Opinion shall otherwise remain as filed October 5, 2010. ¶3 DONE BY ORDER OF THE SUPREME COURT THIS 25TH DAY OF OCTOBER, 2010. /s/ James E. Edmondson CHIEF JUSTICE 2010 OK 78 CHARLES DAVIS, Appellant, v. MARTIN MARIETTA MATERIALS, INC.; MERIDIAN AGGREGATES COMPANY; VENTURE DRILLING COMPANY; and BUCKLEY POWDER COMPANY, Appellees. No. 108,477. November 8, 2010 ORDER ¶1 Having considered the joint motions of the appellees, Martin Marietta Materials, Inc., Meridian Aggregates Company, Venture Drilling Company, and Buckley Powder Company (collectively, employers), to dismiss the appellant’s, Charles Davis’s (employee) appeal, along with the employee’s response thereto, WE DETERMINE THAT: 1) On March 16, 2010, a journal entry of judgment was entered in the above styled and numbered cause granting the employers’ motion to dismiss for failure to state a claim for relief. Rather than filing a postjudgment motion within the ten (10) day period allowed, the employee filed a motion for an extension in the trial court on March 30, 2010, the tenth working day following the filing of the journal entry of judgment. The extension was granted and an order denying the motion to reconsider was entered on June 18, 2010. An appeal was filed within thirty (30) days of the entrance of the order. The employers filed a motion to dismiss the appeal as untimely. 2) Title 12 O.S. Supp. 2002 §990A requires, in mandatory terms, that an appeal must be commenced by filing a petition in error within thirty (30) days from the date a judgment, decree or appealable order is filed. It is well settled in Oklahoma jurisprudence that timely filing of the petition in error commencing the appeal is jurisdictional and failure to file an appeal within the statutory time is fatal, placing the matter beyond this Court’s power of review. Gilbert v. Security Finance Corp. of Oklahoma, 2530
Inc., 2006 OK 58, ¶60, 152 P.3d 165; Whitehead v. Tulsa Public Schools, 1998 OK 71, ¶5, 968 P.2d 1211; Stites v. DUIT Constr. Co., 1995 OK 69, ¶25, 903 P.2d 293; Woods v. Woods, 1992 OK 64, 830 P.2d 1372. 3) Absent extraordinary circumstances, pursuant to 12 O.S. 2001 §653(A), motions for reconsideration must be filed not later than ten (10) days after a judgment is filed. Title 12 O.S. Supp. 2007 §2006(B)(1) and (2) allow a court to exercise discretion in allowing filing periods to be enlarged. Nevertheless, even where excusable neglect is shown for filing the request out of time, the statute prohibits extending the time set forth for taking an appeal. Section 990.2(B) of the same title provides that appeal time is not extended or affected by the filing of a motion to correct, open, modify, vacate or reconsider the judgment, decree, or final order that is filed more than ten (10) days after the judgment, decree or final order is filed. Rule 1.22(e), Supreme Court Rules, 12 O.S. 2001, App. 1 mandates that post-trial motions filed later than ten (10) days after the judgment, decree or final order is filed shall not delay the running of the time to appeal the judgment. 4) The statutory scheme accompanied by this Court’s own pronouncement through Rule 1.22 specifically address the time for filing an appeal and its jurisdictional nature. The discretionary authority to grant extensions is general in scope. Instructive here is another well-settled canon of law. Where a matter is addressed by two statutes, one specific and the other general, the specific statute governs over the general provision. Rogers v. Quicktrip Corp., 2010 OK 3, ¶13, 230 P.3d 853; Southwestern Bell Tel. Co. v. Oklahoma County, 1980 OK 97, ¶12, 618 P.2d 915; Independent Sch. Dist. No. 1 v. Board of Cty. Comm’rs, 1983 OK 123, ¶10, 674 P.2d 547. 5) The specific governing provisions direct that a motion of reconsideration filed outside the ten (10) day period following the filing of a judgment will not extend the jurisdictional appeal time for bringing the issues determined in the underlying judgment before this Court. The general discretion to allow extensions will not operate to frustrate the specific mandates.
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6) Here, no motion for reconsideration was filed within ten (10) days of the entered judgment; and no timely appeal was filed from the underlying judgment. The appeal, having been filed outside the thirty (30) days allowed for the same, is dismissed. Title 12 O.S. Supp. 2001 §990A. 7) Under our jurisprudence, the rules of this Court along with the statutory scheme, and today’s pronouncement, only those motions to correct, open, modify, vacate or reconsider the judgment, decree, or final order filed within ten (10) working days of such judgment, decree, or final order will operate to extend the time to appeal the same beyond the thirty (30) day jurisdictional limitation. Discretionary motions for enlargement of time granted for filing of such motions beyond the ten (10) day time period do not negate the necessity of appealing the underlying judgment within thirty (30) days of its having been filed. ¶2 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal in the above styled and numbered cause, having not been filed within the thirty (30) days allowed for the same, is dismissed. ¶3 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 8TH DAY OF NOVEMBER, 2010. /s/ James E. Edmondson CHIEF JUSTICE EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, KAUGER, WINCHESTER, COLBERT, REIF, JJ. concur. 2010 OK 77 In the Matter of the Reinstatement of: MARYLINN M. GRAVIS to membership in the Oklahoma Bar Association and to the Roll of Attorneys. SCBD No. 5642. October 26, 2010 THE SUPREME COURT OF THE STATE OF OKLAHOMA ORDER OF REINSTATEMENT TO THE OKLAHOMA BAR ASSOCIATION AND ROLL OF ATTORNEYS ¶1 On May 24, 2010, Marylinn M. Gravis, now Haney, filed her petition for reinstatement to membership in the Oklahoma Bar Association (OBA) and to the Roll of Attorneys pursuant to Vol. 81 — No. 30 — 11/13/2010
Rule 11.1 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, ch.1, app.1-A. There is no objection to the petition for reinstatement in the record before us. ¶2 After an investigation was conducted pursuant to Rule 11.2 of the RGDP, a trial panel of the Professional Responsibility Tribunal (PRT) held an evidentiary hearing on August 12, 2010, on the petition for reinstatement in accordance with Rule 11.3 of the RGDP. ¶3 On September 3, 2010, the PRT filed its report with the requisite findings in accordance with Rule 11.5 of the RGDP. The PRT unanimously recommended that petitioner be reinstated to membership in the OBA and that her name be reentered on the Roll of Attorneys. The OBA and petitioner waived their rights to file briefs. ¶4 This Court has exclusive jurisdiction over the licensing of attorneys. In re Reinstatement of Kamins, 1988 OK 32, ¶18, 752 P.2d 1125, 1129. The PRT’s findings and recommendations to this Court are advisory in nature. Id. Accordingly, we consider the petition for reinstatement to membership in the OBA without deference to the PRT’s findings or recommendations. ¶5 The record before us establishes the following facts. Petitioner graduated from the Tulsa University School of Law in 1986. On October 15, 1986, petitioner was admitted to membership in the OBA. Petitioner practiced law in Tulsa, Oklahoma, until June 1, 2007, when she moved to Texas which was a result of her husband’s job. In January 2009, petitioner’s husband was relocated to the Czech Republic on an assignment which was scheduled to last for five years. Petitioner moved to the Czech Republic at the end of the spring school term in 2009. On January 12, 2009, petitioner tendered her resignation to the OBA because she anticipated that she would have difficulty completing the mandatory continuing legal education requirements while living in the Czech Republic. The OBA’s Executive Director acknowledged receipt of petitioner’s letter of resignation and transmitted it to the Clerk of the Supreme Court on January 22, 2009. In August of 2009, petitioner returned to the United States and has been residing in New Jersey since August 15, 2009. ¶6 Petitioner owes no money to the OBA, except for the costs of these proceedings as discussed below. Petitioner completed twelve hours of continuing legal education, including one hour of ethics, in July of 2010. At the time of
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the hearing, petitioner had met the continuing legal education requirements. She has been subscribing to the Oklahoma Bar Journal and has discussed with others current issues in the law. ¶7 Petitioner submitted affidavits from the Montgomery County, Texas, District Court Clerk’s office and from the Court Clerk of Tulsa County stating that their records affirm that petitioner did not practice law during the relevant time period. Petitioner stated that she was unable to get verification from a proper New Jersey official that she did not practice law in New Jersey during the relevant time period. However, petitioner did attest that she did not engage in the unauthorized practice of law in the Czech Republic or in New Jersey during the relevant time period. ¶8 The OBA records show that petitioner has had no grievances filed against her. Several letters were submitted on petitioner’s behalf, all of which praised petitioner. The recommendations addressed her ethics, moral conduct, and competency. Based on the letters and testimony, petitioner has shown that she possesses the moral character and competency to be readmitted to the practice of law in Oklahoma. ¶9 There is no evidence that the Client Security Fund has expended any money on petitioner’s behalf. See Rule 11.1(b) of the RGDP. Petitioner has agreed to pay the costs associated with the proceedings on her petition for reinstatement. See Rule 11.1(c) of the RGDP. The OBA has requested costs be assessed in the total amount of $521.13. ¶10 We find that petitioner has satisfied the requirements for reinstatement as required by Rule 11.5 of the RGDP and that petitioner has affirmatively established by clear and convincing evidence that she has the character and qualifications to conform to the high standards required of members of the OBA. See Rules 11.4, 11.5 of the RGDP. The evidence clearly and convincingly demonstrates that she has not engaged in the unauthorized practice of law since her resignation from the OBA, and that she has the competency and learning to be readmitted to membership in the OBA. See Rules 11.4, 11.5 of the RGDP. Petitioner has not paid her OBA dues for the 2010 year which will be due within twenty days of the filing of this order. ¶11 IT IS THEREFORE ORDERED that Marylinn M. Gravis, now Haney, be reinstated to membership in the Oklahoma Bar Associa2532
tion and that her name be reinstated on the Roll of Attorneys licensed to practice law in the State of Oklahoma. It is further ordered that petitioner shall pay costs in the amount of $661.04 within twenty (20) days from the date this order is filed with the Clerk of this Court. Reinstatement is conditioned upon payment of the costs and payment of her 2010 Oklahoma Bar Association dues. ¶12 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 25th day of October, 2010. /s/ James E. Edmondson CHIEF JUSTICE EDMONDSON, C.J., TAYLOR, V.C.J., AND HARGRAVE, KAUGER, WATT, WINCHESTER, COLBERT, AND REIF, JJ., CONCUR. 2010 OK 79 IN THE MATTER OF THE REINSTATEMENT OF LAYTON M. PERRY, JR. TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION. SCBD No. 5591. November 9, 2010 ORIGINAL PROCEEDING ON PETITION FOR REINSTATEMENT ¶0 Petitioner, Layton M. Perry, Jr., was disbarred from the practice of law and his name stricken from the roll of attorneys on March 11, 1997. State ex rel. Okla. Bar Ass’n v. Perry, 1997 OK 29, 936 P.2d 897. The disbarment was based on petitioner representing adverse interests in the hostile takeover of a business, entering into a business transaction with a client without disclosure, providing a client with financial assistance in connection with litigation, failing to act diligently and competently on his clients’ behalf, lying to clients, failing to keep clients reasonably informed, lying to the Oklahoma Bar Association’s investigator, and failing to properly respond to the Oklahoma Bar Association’s demands concerning grievances. On December 7, 2009, petitioner filed for reinstatement. After a hearing on the petition for reinstatement, the Professional Responsibility Tribunal recommended that petitioner’s petition for reinstatement be denied and that he be ordered to pay the costs. The petitioner filed a brief in which he admits that he did not meet his burden of proof for reinstatement.
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PETITION FOR REINSTATEMENT DENIED; PETITIONER ORDERED TO PAY COSTS OF $2,484.37. Charles F. Alden, III, Alden Dabney, Oklahoma City, Oklahoma, for petitioner. Gina L. Hendryx, Oklahoma Bar Association, Oklahoma City, Oklahoma, for respondent. TAYLOR, V.C.J. ¶1 The petitioner, Layton M. Perry, Jr., was disbarred on March 11, 1997, and did not seek rehearing of the decision. State ex rel. Okla. Bar Ass’n v. Perry, 1997 OK 29, 936 P.2d 897. Thus, his disbarment was effective on March 11, 1997. Perry now seeks reinstatement to membership in the Oklahoma Bar Association (OBA). The OBA opposes Perry’s petition for reinstatement. The issue presented is whether Perry has shown by clear and convincing evidence that, if readmitted, his conduct will conform to the standards required for attorneys licensed by this Court to practice law in Oklahoma. See In re Reinstatement of Munson, 2010 OK 27, ¶ 2, 236 P.3d 96, 98. We find, and Perry agrees, that he has not met the burden of proof required for reinstatement. ¶2 This Court is vested with the duty to regulate the practice, ethics, discipline, and licensure of the practice of law in this State. Id. ¶11, 236 P.3d at 100. We are not bound by the findings or recommendations of the Professional Responsibility Tribunal (PRT) but are required to examine the record and make an independent decision based on all relevant facts. Id. ¶11, 236 P.3d at 101. ¶3 Before an attorney who has been disbarred may be readmitted to the practice of law, he must demonstrate by clear and convincing evidence, if readmitted, that the prerequisites for reinstatement are satisfied and that his conduct will conform to the high standards required of a member of the bar association. Id. ¶ 12, 236 P.3d at 101. “The applicant must present stronger proof of qualifications than one seeking first time admission.” Id. (citing Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, ch. 1, app. 1-A, rule 11.4). ¶4 The PRT must make specific findings as to whether the petitioner possesses the good moral character necessary for admittance to the practice of law; whether the petitioner has engaged in the unauthorized practice of law during his suspension, disbarment, or resignation; and whether the petitioner possesses the Vol. 81 — No. 30 — 11/13/2010
competency and learning in the law required for admittance to the practice of law. Rule 11.5, RGDP. In its thorough report, the PRT found that Perry did not substantially comply with rule 9.1 of the RGDP requiring him to notify his clients of his inability to represent them, that Perry failed to present clear and convincing evidence of good moral character, that Perry failed to present clear and convincing evidence that he had not engaged in the practice of law since being disbarred, that Perry did not have the competency and learning in the law required for admission to the practice of law in Oklahoma, that Perry had not made restitution in a civil fraud case, and that Perry expressed no regret or remorse about his fraudulent conduct. The PRT recommended that Perry’s petition for reinstatement be denied and that he be ordered to pay the costs of the proceedings. Although we are not bound by the PRT’s findings or recommendation, our complete review of the record requires the Court to agree that Perry should not be reinstated. ¶5 One consideration in reinstatement proceedings is whether the petitioner engaged in the unauthorized practice of law. Munson, 2010 OK 27 at ¶ 13, 236 P.3d at 101. The evidence shows that Perry has held himself out as a lawyer and has engaged in the unauthorized practice of law since being disbarred. He billed clients and corresponded on numerous occasions on stationary that stated that he was an attorney and counselor at law. Perry continued to use the professional association’s stationary showing him as an attorney even after the association’s other members had stopped. Perry continued to be listed in the phone book and on web pages as an attorney after he was disbarred. He prepared and billed for legal documents and approved the form of a court order as an attorney after being disbarred. ¶6 A second consideration in reinstatement proceedings is whether the petitioner complied with rule 9.1 of the RGDP.1 Perry did not attempt to comply with this rule until after he filed his petition for reinstatement. When he filed the rule 9.1 affidavit some twelve years late, he stated that he had no clients at the time of his disbarment which was not true. He had at least one client at the time and he presented no evidence that he either notified the client or withdrew from representation. ¶7 A third consideration in this reinstatement proceeding is Perry’s failure to comply with this Court’s directive for him to pay the costs of
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$2,339.84 within thirty days of the date the opinion became final, i.e., within thirty days of March 11, 1997. Perry made no payment on the costs until July of 2005. In a letter to the OBA, Perry apparently enclosed a check for the payment of the costs, plus $125.00 for a dishonored check. In the letter, he stated that he intended to file for reinstatement. Perry ignored this Court’s order for the payment of costs of the disbarment proceedings for over eight years and did not make any payment until he decided to apply for reinstatement. ¶8 A fourth consideration in reinstatement proceedings is the petitioner’s moral character. Rule 11.4, RGDP; Munson, 2010 OK 27 at ¶ 13, 236 P.3d at 101. When Perry filled out the OBA’s reinstatement questionnaire, Perry omitted numerous facts and misstated other facts. One fact that Perry lied about on the form was whether he had ever had a complaint filed against him in any civil forum alleging fraud, deceit, misrepresentation, forgery, or legal malpractice. Perry answered no to the question. In fact, a civil case was filed against Perry in which he was found to have acted fraudulently. The court entered judgment in 1990 against Perry for $70,999.00, plus costs of $92.00 and attorney fees of $6,475.00. Perry did not attempt to repay the 1990 judgment until two years before seeking reinstatement. On the questionnaire, Perry answered that he owed about $30,000.00 on the judgment when he actually owed over $150,000.00 because of the accrued interest. When questioned about the omissions and misstatements, Perry’s attitude showed that he was indifferent to the blatant deceptions. The deceptions in answers to the questionnaire and Perry’s attitude show that he does not possess the moral character necessary for admittance to the practice of law in Oklahoma. It also shows that he has not reformed his conduct since being disbarred in that lying to the OBA was part of the misconduct which resulted in his disbarment. ¶9 A fifth consideration in reviewing a reinstatement petition is the original misconduct’s seriousness. Rule 11.4, RGDP; Munson, 2010 OK 27 at ¶ 13, 236 P.3d at 101. Perry’s disbarment was based on his representing adverse interests in the hostile takeover of a business, entering into a business transaction with a client without disclosure, providing a client with financial assistance in connection with litigation, failing to act diligently and competently on his client’s behalf, lying to clients, failing to 2534
keep clients reasonably informed, lying to the OBA’s investigator, and failing to respond to the OBA’s demands concerning grievances. The full details of Perry’s misconduct can be found in the opinion disbarring Perry, State ex rel. Okla. Bar Ass’n v. Perry, 1997 OK 29, 936 P.2d 897, and need not be repeated here. Perry’s misconduct was so egregious that it warranted disbarment. ¶10 A sixth consideration is learning and competency in the law. When questioned about the rules regarding attorney trust accounts, Perry was unable to explain the basic principles. This is most disturbing given that the evidence showed that, prior to being disbarred, Perry had written checks on his trust account to pay for legal seminars and that the checks were returned for insufficient funds. It is clear that Perry does not yet understand the rules for segregating his clients’ funds. Further, Perry was not familiar with major changes to the Oklahoma Rules of Professional Conduct. 5 O.S.Supp. 2008, ch. 1, app. 3-A. Perry failed to show by clear and convincing evidence that he had the requisite competency and learning in the law. ¶11 As illustrated by his failure to be honest during the reinstatement proceedings, it is clear that Perry does not respect this Court or the integrity of the legal profession. Perry has made excuses for his failures throughout the reinstatement process which show that he still does not take responsibility for his actions. We agree with the petitioner, Layton M. Perry, Jr.; the respondent, the OBA; and the PRT that the petitioner has failed to present clear and convincing evidence for reinstatement to the practice of law. Layton M. Perry, Jr.’s petition for reinstatement is denied. The OBA has filed an unopposed application to assess costs of $2,484.37. See Rule 11.1(c), RGDP. Petitioner, Layton M. Perry, Jr., is ordered to pay the costs of these proceedings in the amount of $2,484.37 within one year from the date this order becomes final. PETITION FOR REINSTATEMENT DENIED; PETITIONER ORDERED TO PAY COSTS OF $2,484.37. EDMONDSON, C.J., TAYLOR, V.C.J., AND HARGRAVE, KAUGER, WATT, WINCHESTER, COLBERT, AND REIF, JJ., CONCUR. 1 Rule 9.1 of the RGDP provides: When the action of the Supreme Court becomes final, a lawyer who is disbarred or suspended, or who has resigned mem-
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bership pending disciplinary proceedings, must notify all of the lawyer’s clients having legal business then pending within twenty (20) days, by certified mail, of the lawyer’s inability to represent them and the necessity for promptly retaining new counsel. If such lawyer is a member of, or associated with, a law firm or professional corporation, such notice shall be given to all clients of the firm or professional corporation, which have legal business then pending with respect to which the disbarred, suspended or resigned lawyer had substantial responsibility. The lawyer shall also file a formal withdrawal as counsel in all cases pending in any tribunal. The lawyer must file, within twenty (20) days, an affidavit with the Commission and with the Clerk of the Supreme Court stating that the lawyer has complied with the provisions of this Rule, together with a list of the clients so notified and a list of all other State and Federal courts and administrative agencies before which the lawyer is admitted to practice. Proof of substantial compliance by the lawyer with this Rule 9.1 shall be a condition precedent to any petition for reinstatement.
2010 OK 73 SURETY BAIL BONDSMEN OF OKLAHOMA, INC., an Oklahoma corporation, CATHY BOYD, an individual, Plaintiffs, INTERNATIONAL FIDELITY INSURANCE CO., a New Jersey corporation, ALLEGHENY CASUALTY COMPANY, a Pennsylvania corporation, and AMERICAN SURETY COMPANY, an Indiana corporation, Plaintiff Intervenors/Appellants, v. THE INSURANCE COMMISSIONER OF THE STATE OF OKLAHOMA, Defendant/ Appellee, and CARISA CARRASCO, Defendant Intervenor/Appellee. No. 106,025. October 19, 2010 ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II ¶0 In 1990, the Oklahoma Insurance Commissioner was asked to construe 59 O.S.Supp. 1989, § 1320(B) of the Oklahoma Statutes. In an informal response, the Commissioner determined that, under section 1320(B), a professional bondsman could act as surety on more than ten bonds a year outside his county of registration by employing a surety bondsman to “write” bonds on behalf of the professional bondsman. The plaintiffs filed a complaint with the Insurance Commissioner challenging this construction of section 1320(B), and the plaintiffs and plaintiff intervenors filed a petition for summary adjudication. Defendant intervenor intervened and argued, along with the Commissioner, for the correctness of the Commissioner’s construction of section 1320(B). The administrative law judge agreed with defendant intervenor and the Commissioner. The plaintiff intervenors appealed the administrative law judge’s decision to the district court, the Honorable Vol. 81 — No. 30 — 11/13/2010
Barbara Swinton, presiding. The district court ruled in favor of the Commissioner and defendant intervenor. Appeal was taken from the district court’s judgment, and the appeal was assigned to the Court of Civil Appeals. The Court of Civil Appeals affirmed the district court’s judgment, and the plaintiff intervenors filed a petition for certiorari. This Court granted the petition for certiorari. We find that a professional bondsman cannot circumvent 59 O.S.2001, § 1320(B), by employing a surety bondsman to execute bonds on the professional bondsman’s behalf. COURT OF CIVIL APPEALS’ OPINION VACATED; DISTRICT COURT’S JUDGMENT REVERSED AND REMANDED WITH INSTRUCTIONS. Mark T. Hamby and Gene C. Howard, Bonham & Howard, P.L.L.C., Tulsa, Oklahoma, for the appellants. Sandra White Lavenue, Oklahoma City, Oklahoma, for appellee Oklahoma Insurance Department. David H. Cole, Majorie Galt, Ronald L. Wallace, Oklahoma City, Oklahoma, for appellee Carisa Carrasco.1 TAYLOR, V.C.J. ¶1 The dispositive questions presented in this appeal are whether title 59, section 1320(B) of the 2001 Oklahoma Statutes2 limits a professional bondsman to writing bonds on no more than ten defendants a year in a county in which the professional bondsman is not registered, and, if so, whether a professional bondsman can circumvent this limitation by employing a surety bondsman to act on the professional bondsman’s behalf pursuant to a power of attorney. We answer the first question in the affirmative and the second question in the negative. I. HISTORY ¶2 In 1984, the Oklahoma Legislature amended the Bail BONDMEN Code, 59 O.S.2001, §§ 1301-1340, to include a provision limiting a bondsman to writing “bonds on no more than ten defendants” a year in a county in which the bondsman was not registered. 1984 Okla. Sess. Laws 804, ch. 225, § 21 (now codified at 59 O. S.2001, § 1320(B)). This provision is commonly known as the ten bond rule. In 1990, an attorney asked the Oklahoma Insurance Commis-
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sioner (Commissioner) to interpret title 59, section 1320(B). ¶3 In a letter addressed to the attorney and dated January 26, 1990, the assistant general counsel of the Oklahoma Department of Insurance (Department) responded: [I]t is the informal opinion of the Oklahoma Insurance Commissioner that a professional bail bondsman may not write on more than ten (10) defendants per year in those counties in which he neither resides nor offices. However, the professional bail bondsman may appoint licensed surety agents to act in his behalf. Those surety agents may write an unlimited number of bonds in the county of their residence or office, but not both, as long as the amount written, coupled with that which the professional bondsman and his other appointed agents have written, does not exceed the professional bail bondsman’s liability writing limit with the Oklahoma Insurance Commission. Under this informal opinion, a professional bondsman is prohibited from writing bonds on more than ten defendants a year in a county in which the professional bondsman neither resides nor offices unless he authorizes a surety bondsman to act as his agent pursuant to a power of attorney. ¶4 Surety Bail Bondsmen of Oklahoma, Inc. and Cathy Boyd (collectively, plaintiffs) filed a complaint with the Department.3 They then filed a motion for summary adjudication, asking for a ruling “[t]hat any bonds written under the authority of a power of attorney are subject to the legal limitations imposed upon the principal bondsman, including the ten defendant out-of-county limit contained in 59 O.S.Supp. 1989, § 1320.” The plaintiff intervenors, i.e., the International Fidelity Insurance Company, Allegheny Casualty Company, and American Surety Company, filed a motion to intervene and to be added as parties to the petition for summary adjudication. The motion was granted. The Commissioner and Carrasco responded to the motion for summary adjudication. ¶5 On April 7, 2005, the Department’s administrative law judge (ALJ) held a hearing and, on June 23, 2005, issued an order. The ALJ stated the Commissioner’s position regarding title 59, section 1320(B) as: 2536
[A] professional bail bondsman may appoint licensed surety bail bondsmen to act in his behalf. Those surety bail bondsmen may write an unlimited number of bonds in their county of registration, as long as the amounts written, coupled with that which the professional bondsman and his other appointed bondsmen have written, does not exceed the professional bail bondsman’s liability writing limit with the Oklahoma Insurance Commissioner. The ALJ succinctly stated the Commissioner’s reasoning as it is the surety bondsman who writes the bond because the surety bail bondsman prepares and completes the appearance bond and files it with the court. The ALJ found that section 1320(B) is ambiguous and that the Commissioner’s interpretation of section 1320(B) is reasonable. ¶6 The plaintiffs filed a petition appealing the agency’s ruling and filed a brief in the district court.4 The plaintiffs’ positions in its brief before the district court, among other things, were (1) title 59, section 1320(B) is unambiguous and limits a professional bondsman’s authority even when acting through a surety bondsman under a power of attorney; (2) the surety bondsman, as an agent for the professional bondsman, is subject to the legal limitations imposed on the professional bondsman; (3) the professional bondsman, not the surety bondsman, writes the bonds contrary to the Commissioner’s reasoning; and (4) the Commissioner’s construction of section 1320(B), even if long-standing, is not controlling. The Commissioner and Carrasco filed responsive briefs. The Commissioner urged that her construction of section 1320(B) is reasonable and entitled to deference and that the agency’s ruling should be upheld. Carrasco merely referenced the response filed in the administrative proceedings. ¶7 The district court entered finding of facts and conclusions of law on June 16, 2008, and, on June 18, 2008, entered judgment affirming the agency’s decision in favor of the Commissioner and Carrasco. The district court found (1) when title 59, sections 1301(B)(5)5 and (10),6 1306(A)(2)(3) and (4),7 1314(B)(2),8 13169 and 132110 are read together, it is clear that the Legislature intended for the power of attorney to be a grant of the use of a monetary amount of surety and not a grant for a surety bondsman to use the professional BONDMAN’s license, (2) “[t]he Surety Bondsman may write an
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unlimited number of bonds in the county where he/she resides or offices, as long as the amount written by the Surety Bondsman, added to that amount written by the Professional Bondsman, does not exceed the Professional Bondsman’s monetary writing limits established by the Insurance Department,” (3) the Commissioner’s construction of title 59, section 1320(B) is entitled to deference, and (4) the Commissioner’s construction of section 1320(B) does not result in a violation of the Equal Protection Clauses of the United States or Oklahoma constitutions. ¶8 The plaintiff intervenors appealed to this Court. The plaintiff intervenors, Carrasco, and the Commissioner filed briefs in this Court; and the appeal was assigned to the Court of Civil Appeals for disposition. The Court of Civil Appeals found that title 59, section 1320(B) is unambiguous and that it does not limit a surety bondsman to writing only ten bonds a year for a professional bondsman in the county where the surety bondsman, but not the professional bondsman, is “registered.” The plaintiff intervenors filed a petition for writ of certiorari. This Court granted the writ. II. ANALYSIS ¶9 The questions before us are ones of statutory construction which are questions of law subject to de novo review in the appellate court. St. John Medical Center v. Bilby, 2007 OK 37, ¶ 2, 160 P.3d 978, 979. De novo review is plenary, independent, and non-deferential to a lower court’s decision. Id. ¶10 The Bail BONDMEN Code provides for four types of bondsmen: surety bondsmen, professional bondsmen, property bondsmen, and cash bondsmen. 59 O.S.2001, § 1301(A)(5), (7), (8), (9). These four types of bondsmen constitute the group known as bail bondsmen. Id. § 1301(A)(4). The surety bondsmen and professional bondsmen are the only bondsmen involved in this dispute. ¶11 A professional bondsman is a person who pledges cash as security for a bail bond. Id. § 1301(B)(7). A professional bondsman must be approved by the Commissioner. Id. Additionally, a professional bondsman must submit a financial statement showing a net worth of at least $50,000.00 and make a deposit, either in cash or in the form of an annuity, with the Commissioner. Id. § 1306(A)(2), (3). Vol. 81 — No. 30 — 11/13/2010
¶12 Under the relevant provisions, a professional bondsman acts as the surety on a bail bond. Id. § 1321. The professional bondsman may transact the issuance of a bond directly or may do so by appointing a surety bondsman as an agent to act on the professional bondsman’s behalf. Id. 1316(A). If the professional bondsman appoints a surety bondsman to act as an agent, the professional bondsman must file a notice of the appointment with the Commissioner, pay a $10.00 fee, and submit the agreement between the professional bondsman and the surety bondsman to the Commissioner. Id. §§ 1316(A)(1), 1317(A). The professional bondsman must notify the Commissioner when an agreement is canceled. Id. § 1317(A). ¶13 A surety bondsman is a person who is approved by the Commissioner and who is “appointed by an insurer or professional bondsman, by power of attorney.” Id. § 1301(B)(5). A surety bondsman executes or countersigns bail bonds for the insurer or professional bondsman. Id. A surety bondsman is not authorized to act as a bondsman except when acting as an agent for an insurer or professional bondsman pursuant to a power of attorney. Id. Further a surety bondsman cannot be the surety for the release of a person on bail. Id. § 1321. ¶14 The Bail Bondsman Code was originally enacted in 1965. 1965 Okla. Sess. Laws 305-317, ch. 184. As first enacted, the Code did not contain a ten bond rule. Chapter 184 of the 1965 session law at section 20 provided, in part: No bail bondsman shall become a surety on an undertaking unless he has first registered his license in the office of the sheriff and with the clerk of the district court in the county in which the bondsman resides and he may then become surety in any other county upon presenting to the official required to approve the sufficiency of bail, a certificate of such registration. A surety bondsman shall also file a certified copy of his appointment by power of attorney from each insurer which he represents as agent with each of said officers. Under this provision, a bail bondsman acting as a surety, that is a professional bondsman but not a surety bondsman, is required to register his license in the county of his residence. Also after registering his license, a professional bondsman could act as a surety in the resident county and all other counties throughout the
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state without a numerical limitation on the bonds that could be written. ¶15 Apparently a problem arose with professional bondsmen not being accessible in the counties in which they were acting as sureties. So in 1984 the Legislature amended title 59, section 1320(A) and (B). 1984 Okla. Sess. Laws 804-805, ch. 225, § 21. The 1984 amendments to section 1320 provide in part: A. . . .In any county in which a bondsman chooses to write surety, he shall also provide the court clerk with proof of constant accessibility in the county. Accessibility as herein required shall mean that the bondsman must have a duly authorized agent within the county with authority to make and execute a bail bond. . . . B. Notwithstanding the foregoing provisions of this section, a bondsman may write bonds on no more than ten (10) defendants per year in each county in which he has not duly registered his license with the court clerk, by advising the court clerk in writing of his intention to do such writing. 59 O.S.Supp. 1984, § 1320 (also found at 1984 Okla. Sess. Laws 804-805, ch. 225, § 21). These amendments to section 1320 indicate a clear legislative intent to assure that a professional bondsman is accessible by and through a duly authorized agent in the counties wherein he acts as a surety but does not office or reside. These amendments also show a legislative intent to place a ten bond limit on the professional bondsman’s authority whether in person or acting through an agent. ¶16 In 1987, the Legislature again attempted to remedy the problems with professional BONDMEN’S’s absence in the counties wherein they were acting as sureties. See 1987 Okla. Sess. Laws 1277, ch. 211, § 18. The 1987 Legislature required a professional bondsman to provide proof of his residency in the county or proof that he offices in the county wherein he registers his license. Id. In the counties wherein he was not registered but writing bonds, in addition to advising the court clerk of his intention to write bonds, a professional bondsman was required to file a certified copy of his license with the court clerk. ¶17 Section 1320 of title 59 was again amended in 1989. 1989 Okla. Sess. Laws 795, ch. 257, § 9. In 1989, the Legislature clarified that a pro2538
fessional bondsman could register his license in either the county where he resides or offices, but not both. It also changed section 1320(B) of title 59 to provide: Notwithstanding the foregoing provisions of this section, a bondsman may write bonds on no more than ten defendants per year in each of the remaining seventy-six counties of this state in which the bondsman cannot register his license. . .. These two amendments to section 1320(B) are tied to writing bonds and clearly show the Legislature’s intent to limit a professional bondsman acting as a surety to writing on no more than ten defendants a year in any county other than the one in which the professional bondsman is registered. ¶18 In 1992, the ten bond rule was again amended and currently provides: Notwithstanding the foregoing provisions of this section, a bondsman may write bonds on no more than ten defendants per year in each of the remaining seventy-six counties of this state in which the bondsman cannot register his license. Provided, however, a bondsman shall not be limited to writing bonds on only ten defendants per year in a county which does not have a licensed bondsman registered in said county. The bondsman shall advise the court clerk of each such county in writing of his intention to write bonds in the county and shall file a certified copy of his license with and pay a fee of Ten Dollars ($10.00) to each such court clerk. 1992 Okla. Sess. Laws 306, ch. 98, § 7 (codified at 59 O.S.2001, § 1320(B)). ¶19 In summary, the Legislature began with an open policy of allowing professional bondsmen to act as sureties in all counties. The Legislature in 1984 severely limited a professional bondsman’s ability to act as a surety on a bond outside the county in which the professional bondsman was registered by injecting an accessibility factor and the ten bond rule. Again in 1987 because of apparent problems with professional bondsmen acting as sureties outside of the county where they were registered, the Legislature required them to provide proof of their registration in counties where they were not allowed to register.11
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¶20 Under the current section 1320(A), a professional bondsman must register his license in the sheriff’s office and the court clerk’s office in either the county in which he offices or in which he resides but not both. A surety bondsman is not required to register his license in any county office, see id. §§ 1320(A), 1321, but he must attach a copy of the power of attorney from a professional bondsman to each appearance bond he files with the court clerk. Id. § 1316(B)(D). When a dispute arises, the surety bondsman who negotiated and posted the bond is deemed to represent the professional bondsman granting the power of attorney. Id. § 1317(D).12 ¶21 By beginning with the words “[n]otwithstanding the foregoing provisions of this section,” section 1320(B) references and incorporates section 1320(A) of title 59. The first sentence of section 1320(B) continues with “a bondsman may write bonds on no more than ten defendants per year in each of the remaining seventy-six counties of this state in which the bondsman cannot register his license.” (Emphasis added.) Section 1320(A) requires only bondsmen acting as sureties to register their licenses and, thus, section 1320(B)’s ten bond rule is applicable to bondsmen who are sureties, in this case professional bondsmen.13 Consistent with the Commissioner’s construction and the legislative history, section 1320(B) unambiguously limits a professional bondsman to writing on no more than ten defendants in a county where the professional bondsman is not registered if the county has other registered bondsmen. ¶22 We next turn to the part of the Commissioner’s construction which would allow professional bondsmen to circumvent title 59, section 1320(B) by appointing a surety bondsman to act on the professional bondsman’s behalf pursuant to a power of attorney. It is clear that the Legislature understood the common law of agency and incorporated it into the Bail BONDMEN Code. The Legislature’s incorporation of the common law into the Code is consistent with title 12, section 2 of the Oklahoma Statutes. Section 2 provides: “The common law remains in force in aid of general statutes.” Thus, the statutes and the common law are to be read together as one harmonious whole. Lierly v. Tidewater Petroleum Corp., 2006 OK 47, n. 8, 139 P.3d 897, 905 n. 8. ¶23 Under the common law, a relationship of agency is established when two parties agree that one, the agent, shall act on behalf and subVol. 81 — No. 30 — 11/13/2010
ject to the control of the other, the principal. Restatement (Third) of Agency § 1.01 (2005). “An agency relationship generally exists if two parties agree one is to act for the other.” McGee v. Alexander, 2001 OK 78, ¶ 29, 37 P.3d 800, 807. Under the Bail Bondsman Code, a professional bondsman and surety bondsman agree that the surety bondsman will act on behalf of and under the control of the professional bondsman pursuant to a power of attorney. 59 O.S.2001, § 1301(B)(5). The surety bondsman can only sign bail bonds after being appointed to do so pursuant to a power of attorney to act on behalf of an insurer or a professional bondsman. 59 O.S.2001, §§ 1301(B)(5), 1316(A). A surety bondsman’s license gives no authority to execute bonds independent of an insurer or professional bondsman appointing him under a power of attorney. See id. § 1301(A)(5). Under the statutory scheme, a surety bondsman executes or countersigns bonds on behalf of an insurer or a professional bondsman under the umbrella of the principal’s license, both the monetary aspect and the authority to execute bonds. Contrary to the Commissioner’s position, the surety bondsman in this agency relationship is not authorized to execute bonds based on his license only. Id. 1301(A)(5). ¶24 In measuring a surety bondsman’s authority and in construing title 59, section 1320(B), we are also guided by the commonlaw rule that “[t]he capacity to do a legally consequential act by means of an agent is coextensive with the principal’s capacity to do the act in person.” Restatement (Third) of Agency § 3.04 (2005). In other words, a principal cannot do an act through an agent which the principal could not do directly. See id. § 3.04 Reporter’s Notes (b). Thus, the surety bondsman’s authority to write bonds as a professional bondsman’s agent is coextensive with the professional bondsman’s authority. ¶25 Here, a professional bondsman is limited to writing “bonds on no more than ten defendants per year in each of the remaining seventysix counties of this state in which the bondsman cannot register his license.” 59 O.S.2001, § 1320(B). Because of this limitation on a professional bondsman, he cannot delegate the power to a surety bondsman to write more than ten bonds a year in a county where the professional bondsman is not registered. To rule otherwise would allow a professional bondsman to circumvent section 1320(B)’s ten bond rule by
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delegating authority that the professional bondsman does not posses. ¶26 In further support of this conclusion, under the rules of statutory construction, we presume that the Legislature has not done a vain and useless act. Strong v. Laubach, 2004 OK 21, ¶ 11, 89 P.3d 1066, 1070. It is nonsensical to construe title 59, section 1320(B) as placing limitation on the number of bonds a professional bondsman can write in a county wherein he is not registered and then construe the same provision so as to let him avoid the limitation by appointing a surety bondsman as his agent. ¶27 The Commissioner contends that she is authorized to construe the Bail Bondsmen Code and that its long time construction of section 1320(B) — a professional bondsman may appoint a surety bondsman who is not limited by the ten bond rule — is reasonable and entitled to deference. The principle relied upon by the Commissioner is that a long prevailing contemporaneous construction of an ambiguous statute by an agency charged with its execution is not controlling but is entitled to great weight unless the construction is erroneous and unreasonable. Oral Robert Univ. v. Okla. Tax Comm’n, 1985 OK 97, ¶ 10, 714 P.2d 1013. ¶28 Under the Commissioner’s construction of title 59, section 1320(B), a surety bondsman is restricted by a monetary limit of title 59, section 1306(A)(3), but not a numerical limit. The Commissioner reasons that the surety bondsman “writes” the bonds. If this were so, the surety BONDMAN also “writes” the bonds for purposes of title 59, section 1306(A)(3), which provides that “a professional bondsman [shall not] write bonds which equal more than ten times the amount of the deposit which such bondsman has submitted to the Commissioner.” (Emphasis added.) The Commissioner’s position is internally inconsistent because, under her construction, a surety bondsman acting as an agent for a professional bondsman is not bound by section 1320(B)’s numerical limitation but is bound by section 1306(A)(3)’s monetary limitation when both statutes use “write bonds” as the operative language.14 Further, the provisions relied on by the Commissioner to support her position that section 1320(B) is ambiguous actually support a finding that the Legislature understood and incorporated the common-law rules of agency into the Code. The Commissioner’s construction of section 1320(B) is erroneous and unreasonable and is not entitled to any deference. 2540
III. CONCLUSION ¶29 We find that title 59, section 1320(B) of the Oklahoma Statutes limits a professional bondsman to writing no more than ten bonds a year in a county where the professional bondsman has not registered his license, except in those counties which have no registered bondsman. We further find that the professional bondsman cannot circumvent title 59, section 1320(B) by employing a surety bondsman because the authority of a surety bondsman acting pursuant to a power of attorney is coextensive with that of the professional bondsman executing the power of attorney. Since 1984, the Legislature has curtailed a professional bondsman’s authority to act as a surety in counties other than the county of his registration. In contrast to the Legislature’s actions, the Commissioner’s construction of title 59, section 1320(B) negates its legislative limitations and is erroneous in that it is inconsistent with section 1320’s the legislative intent and legislative history. Based on our construction of title 59, section 1320, we need not address the plaintiff intervenors’ other arguments. ¶30 The Court of Civil Appeals’ opinion is vacated. The district court’s judgment is reversed. The cause is remanded to the district court for further proceedings consistent with this opinion. See 75 O.S.2001, §§ 322-323. COURT OF CIVIL APPEALS’ OPINION VACATED; DISTRICT COURT’S JUDGMENT REVERSED AND REMANDED WITH INSTRUCTIONS. Edmondson, C.J., Taylor, V.C.J., and Kauger, Winchester, and Reif, JJ., concur. Watt and Colbert, JJ., dissent. Hargrave, J., disqualified. 1. In the administrative proceedings, in the district court, and in the appellate courts, the style contained the following designation: “Carisa Carrasco, et al., Third-Party Intervenors/Appellees.” These third-party intervenors (defendant intervenors) have attempted to intervene as defendants and should be distinguished from the intervenors who intervened as plaintiffs (plaintiff intervenors). The record on appeal does not contain a motion to intervene on behalf of the defendant intervenors. Except for the name of Carisa Carrasco (Carrasco or defendant intervenor), the defendant intervenors’ names appear nowhere in the record on appeal. This Court directed the plaintiff intervenors to disclose the names of all of the defendant intervenors. The plaintiff intervenors responded that the names of the defendant intervenors are not part of the record and asked that the term “et al.” be stricken from the style. We then directed the defendant intervenors to respond and show cause why the term “et al.” should not be stricken. In their response, they failed to show that any defendant intervenor, other than Carrasco, is a proper party defendant to the case. Title 12, section 2010(A) of the Oklahoma Statutes provides: “[A] motion and petition in intervention shall include the names of the intervenors and the adverse parties.” No
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such motion appears in the record before this Court. The defendant intervenors admit that their names, other than Carrasco, are not included in the record and were not filed in this case. The defendant intervenors have failed to present any legal basis upon which this Court has authority to include the unnamed defendant intervenors as parties to this suit. The term “et al.,” is stricken from the style, and parties’ titles are changed to clarify their status in the district court and in this Court. 2. This opinion references the 2001 Oklahoma Statutes when referring to provisions of the Code unless otherwise specifically noted. Amendments to the Code after 2001 do not bear on our analysis. 3. The complaint is not a part of the record on appeal. However, the parties do not dispute that Surety Bail Bondsmen of Oklahoma, Inc. and Cathy Boyd filed the complaint with the Department, and the style of the proceeding before the Department names them as the complainants. The district court found that Surety Bail Bondsmen of Oklahoma, Inc. “is not a licensed ‘Insurer’, as defined in 59 O.S. Sec. 1301(B)(3)” and not eligible to be licensed as a bail bondsmen, that Cathy Boyd surrendered her Oklahoma state bail bond license on April 1, 2008, and that neither Surety Bail Bondsmen of Oklahoma, Inc. nor Cathy Boyd have participated or been represented in this lawsuit since June 7, 2006. 4. The parties, the district court, and the Court of Civil Appeals treated the petition as a quest for declaratory judgment, 12 O.S.2001, §§ 1651-1657, rather than an appeal from an agency decision. Title 75, section 322 of the Oklahoma Statutes, which is part of the Administrative Procedures Act (APA), 75 O.S.2001, §§ 250-323, addresses a reviewing court’s authority in affirming, setting aside, modifying, or reversing an agency’s decision coming within its purview. There is no provision in the APA for summary judgment in the district court when it is setting as a court reviewing an agency’s decision. We therefore treat the summary judgment motion and the responses as briefs filed in the district court in review of the agency’s ruling, and they are denoted herein as briefs before the district court. 5. Title 59, section 1301(B)(5) of the Oklahoma Statutes provides: “Surety bondsman means any person who has been approved by the Commissioner and appointed by an insurer or a professional bondsman, by power of attorney, to execute or countersign bail bonds for the insurer or a professional bondsman, in connection with judicial proceedings and charges and receives money for his services[.] 6. Title 59, section 1301(B)(10) of the Oklahoma Statutes provides: Escrow deposit means cash or valuable security deposited by an insurer of a surety bondsman or professional bondsman to secure the face amount of forfeiture pending appeal . . . . 7. The district court cited “1306(2)(3) & (4).” We assume that the district court intended to cite “1306(A)(2),(3), and (4)” because subsections B, C, and D of section 1306 do not contain subsections 2, 3, and 4. Title 59, section 1306(A)(2), (3), and (4) of the Oklahoma Statutes and amendments thereto dictate the monetary deposit required of a professional bondsman. 8. Title 59, section 1314(B)(2) of the Oklahoma Statutes provides: Professional bondsmen shall submit by mail with return receipt requested notarized monthly reports showing total current liabilities, all bonds written during the month by the professional bondsman and by any licensed bondsman who may countersign for him or her, all bonds terminated during the month, and the total liability and a list of all bondsmen currently employed by such professional bondsmen. . . . 9. Title 59, section 1316 of the Oklahoma Statutes and amendments thereto provides in relevant part: (1) a bail bondsman cannot give a power of attorney to any person who is not a licensed bondsman; (2) before a bondsman can write bonds on behalf of a professional bondsman, the agreement between the professional bondsman and the employed bondsman must be submitted to the Commissioner; (3) the suspension of a professional bondsman or the surrender of a professional bondsman’s license results in the suspension of the professional bondsman’s agents unless the professional bondsman’s license is reinstated within twenty-four hours; and (4) all surety bondsman must attach the power of attorney to the appearance bond. 10. Title 59, section 1321 of the Oklahoma Statutes provides: Each and every surety for the release of a person on bail shall be qualified as: (1) An insurer and represented by a surety bondsman or bondsmen; or (2) A professional bondsman properly qualified and approved by the Insurance Commissioner; or (3) A cash bondsman; or (4) A property bondsman; or (5) A natural person who has reached the age of twenty-one (21) years, a citizen of the United States and a bona fide resident of Oklahoma for a period of six (6) months immediately last past
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and who holds record title to property in Oklahoma, cash or other things of value, acceptable to the proper authority approving the bail bond. 11. In 1993, the Department adopted rule 365:25-5-38 entitled “Ten defendant limit” without mentioning the Commissioner’s 1990 informal opinion. Section 365:25-5-38 provides: Pursuant to 59 O.S. § 1320, a bondsman is authorized to write bonds on up to ten defendants per year, October 1 through September 30, in each county outside his resident county. For purposes of determining the ten defendants, the bondsman shall consider each date a bond or bonds are written on a defendant as being one of the ten defendants, not withstanding any previous bonds which have been written on that same individual. The ten defendant limit does not apply in counties without a registered bondsman in said county. 12. Only when acting as an insurer’s agent is a surety bondsman required to file a certified copy of the power of attorney appointment with the sheriff’s office and the court clerk’s office. Id. § 1320(A). In filing a power of appointment from an insurer, a surety bondsman must be licensed and pay a fee of $10.00 to the district court clerk in each county in which he files a power of attorney. Id. § 1320(A). 13. The Court of Civil Appeals’ opinion states: “All bondsmen must register.” This incorrect statement leads the Court of Civil Appeals to the wrong conclusion. Title 59, section 1320(A) requires only a bondsman acting as surety to register his license. The title given a surety bondsman is confusing. A surety bondsman never acts as a surety. 14. Carrasco cites Cox v. Dawson, 1996 OK 11, 911 P.2d 272. Cox involved the appointment of Mining Commission members to staggered seven-year terms when title 45, section 1 of the 1995 Oklahoma Statutes authorizing appointments to the Mining Commission did not provide for staggered terms. The statute at issue in Cox was ambiguous, the Mining Commission had adopted a formal rule staggering the terms, and the Senate acquiesced in the staggered terms by confirming fourteen of the appointments. Here, the Department has not adopted a formal rule, and there is no indication that the Legislature was even aware of the Commissioner’s construction. Carrasco incorrectly states that, in 2005, the Legislature voted against House Bill 2057 which was an attempt to add subsection 1320(C) in title 59 which provided in part: [N]o more than ten (10) bonds per year may be written in any county outside the home county of the professional bondsman by either the professional bondsman, the appointed surety of the bondsman, or any combination of them, or all of them combined. The Legislature did not vote against House Bill 2057. In fact, House Bill 2057 was not brought to the legislative body for a vote. See 1 Journal of the House of Representatives of the First Regular Session of the Fiftieth Legislature 278, 313 (2005).
2010 OK 75 PONCA IRON & METAL, INC., OWN RISK #11794, Petitioner/Appellant, v. JACKIE WILKINSON and THE WORKERS’ COMPENSATION COURT, Respondents/Appellees. No. 106,164. October 19, 2010 ON CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION I ¶0 Petitioner/Appellant, Ponca Iron & Metal, Inc., seeks review of an order of the Workers’ Compensation Court and subsequent sustainment of this order by the Oklahoma Court of Civil Appeals, Division I, awarding Respondent, Jackie Wilkinson, temporary total disability benefits and medical care, and denying Employer’s statute-of-limitation defense. We granted Appellant’s Petition for Certiorari.
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CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; WORKERS’ COMPENSATION COURT ORDER SUSTAINED. R. Dean Lott, Larry C. Brawner, BRAWNER LAW OFFICE, Oklahoma City, Oklahoma, for Petitioner/Appellant. James G. Devinney, Ponca City, Oklahoma, for Respondents/Appellees. HARGRAVE, J. ¶1 Petitioner/Appellant, Ponca Iron & Metal, Inc., (Employer) seeks review of an order of the Workers’ Compensation Court and subsequent sustainment of this order by the Oklahoma Court of Civil Appeals, Division I, awarding Respondent, Jackie Wilkinson (Claimant), temporary total disability (TTD) benefits and medical care, and denying Employer’s statute of limitation defense. The opinion of the Court of Civil appeals is vacated. ¶2 Claimant’s job duties with Employer dealt with computer keyboard use and filing. Her employment was terminated on December 18, 2005. Employer denied receiving proper notice of the claim, and that the injury arose out of or in the course of Claimant’s employment. In addition, Employer asserted Claimant’s claim was barred for failure to file the claim within the six-month statutory time period set forth at 85 O.S. Supp. 2005 §43(A). ¶3 The trial court found Claimant sustained a work-related injury to her left and right hands, and left arm arising out of and in the course of her employment with Employer. The court further found Claimant was entitled to medical treatment and temporary total disability (TTD) benefits beginning August 13, 2006, and continuing for a period of time not to exceed fifty-two (52) weeks. Employer appealed the order to a three-judge panel of the Workers’ Compensation Court (Panel) which affirmed the trial court’s order, with one modification to the interest rate. Employer then sought review by the appellate court. The Court of Civil Appeals, Division II, in an unpublished opinion in Case No. 104,690, Ponca Iron & Metal, Own Risk v. Wilkinson & the Workers’ Compensation Court, reversed and remanded the case to the trial court with instructions to address the statute-of-limitations defense. On remand, the trial court denied Employer’s statute-of-limitations defense holding this section “unreason2542
ably singles out employees who have been terminated and have sustained cumulative trauma injuries. The law is in direct conflict with the general two year statute of limitations for cumulative trauma injuries and arbitrarily puts an unfair burden on these claimants.” ¶4 On appeal, the Court of Civil Appeals, Division I, found the statutory language to be ambiguous, and that when an ambiguity exists as to legislative intent, the appellate courts invoke the construction which is most reasonable, citing LeFlore v. Reflections of Tulsa, Inc., 1985 OK 72 ¶28, 708 P.2d 1068, 1075. The Court of Civil Appeals opined that the phrase “termination of employment” might apply to voluntary termination, as well as involuntary termination, and all people leaving employment would be subject to a shortened limitations period. Next, the Court of Civil Appeals found that the legislature enacted this language to curtail retaliatory workers’ compensation claims filed by terminated employees and that it applied only to injuries sustained after employment was terminated. The claimant also argued that the last sentence of 85 O.S. Supp. 2005 §43(A) is a special law prohibited by the Oklahoma Constitution, Art. 5, §46. The Court of Civil Appeals declined to address this argument, holding that its opinion is based on the ambiguity of the statute. ¶5 The statute in question in the instant matter, 85 O.S. Supp. 2005 §43(A) provides: The right to claim compensation under the Workers’ Compensation Act shall be forever barred unless, within two (2) years after the date of accidental injury or death, a claim for compensation is filed with the Workers’ Compensation Court. Provided however, a claim may be filed within two (2) years of the last medical treatment which was authorized by the employer or the insurance carrier or payment of any compensation or remuneration paid in lieu of compensation. Provided further however, with respect to disease or injury caused by repeated trauma causally connected with employment, a claim may be filed within two (2) years of the date of last trauma or hazardous exposure. Provided, further however, in the case of asbestosis, silicosis or exposure to nuclear radiation causally connected with employment, a claim may be filed within two (2) years of the date of last hazardous exposure or within two (2) years from the date said
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condition first becomes manifest by a symptom or condition from which one learned in medicine could, with reasonable accuracy, diagnose such specific condition, whichever last occurs. The filing of any form or report by the employer or insurance carrier shall not toll the above limitations. Post-termination injury claims shall be filed within six (6) months of termination of employment, provided that nothing herein shall extend any limitation period set forth in this section. (Emphasis added) The Court of Civil Appeals was correct when they opined that the legislature enacted this language to curtail retaliatory workers’ compensation claims filed by terminated employees. However, the amendment was not expressly targeted to employees who are involuntarily terminated, or to employees who had not reported injuries prior to the termination of their employment. The amendment is not restricted in this regard and applies to employees who have voluntarily terminated their employment for good reasons such as new job or retirement. Such employees have no reason or motive to file retaliatory claims. ¶6 The Legislature runs afoul of the prohibition on enacting special laws set forth in Oklahoma Const. Art. 5 §46 when it adopts a classification that is arbitrary and capricious and bears no reasonable relationship to the object of the Legislation. “[S]pecial laws are all those that rest on a false or deficient classification [and] create preference and establish inequality.” Barrett v. Board of County Comm’rs of Tulsa County, 1939 OK 68, ¶0 (syllabus 3) and ¶7, 90 P.2d 442, 443 and 446. We have previously stated that: The terms of art. 5, §46 command that court procedure be symmetrical and apply equally across the board for an entire class of similarly situated persons or things. In a special laws attack under art. 5, §46, the only issue to be resolved is whether a statute upon a subject enumerated in the constitutional provision targets for different treatment less than an entire class of similarly situated persons or things. The test is whether the provision fits into the structured regime of established procedure as part of a symmetrical whole. If an enactment injects asymmetry, the §46 interdiction of special law has been offended. Zeier v. Zimmer, Inc., 2006 OK 98, ¶13, 152 P.3d 861, 868. In Loyal Order of the Moose, Lodge 1785 Vol. 81 — No. 30 — 11/13/2010
v. Cavaness, 1977 OK 70, ¶16, 563 P.2d 143, 147, we recognized that the Legislature has a wide latitude to create statutory classifications, but they must be reasonable. ¶7 In the present matter, the amendment in question brings §43 squarely within the special law prohibition of Art. 5, §46. The classification of injured employees on the basis of continued versus terminated employment is a false and deficient classification of the larger class of injured employees because it creates preference for members in the continued employment group and results in unequal treatment for certain members of the terminated group that bear no reasonable relationship to curtailing retaliatory claims or preventing stale claims. Hence, we find the action of the Legislature to be unreasonable in their creation of this particular statutory classification. We hold the 2005 amendment to §43(A) adding the sixmonth statutory limitations period is unconstitutional. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; WORKERS’ COMPENSATION COURT ORDER SUSTAINED. ¶8 CONCUR: EDMONDSON, C.J., HARGRAVE, KAUGER, WATT, COLBERT, REIF, JJ. ¶9 DISSENT: TAYLOR, V.C.J., WINCHESTER, J. 2010 OK 74 CHARLES MCGUIRE, Petitioner-Appellant, v. N. GLANTZ & SON, LLC, NATIONAL FIRE INSURANCE COMPANY OF HARTFORD and THE WORKERS’ COMPENSATION COURT, Respondents/ Appellees, No. 105,948. October 19, 2010 CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II ¶0 The claimant, Charles McGuire, seeks review of a three-judge panel’s order, which vacated a trial court order awarding him temporary total disability benefits. The panel’s order found that the trial court’s order was contrary to law and against the clear weight of the evidence. The Court of Civil Appeals vacated the panel’s order and remanded for further proceedings.
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CERTIORARI PREVIOUSLY GRANTED; THE COURT OF APPEALS’ OPINION AND THE THREE-JUDGE PANEL’S ORDER ARE VACATED; THE CLAIM IS REMANDED TO THE THREE-JUDGE PANEL FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS PRONOUNCEMENT. Susan H. Jones, TOON & OSMOND, P.L.L.C., Tulsa, Oklahoma for Petitioner-Appellant. J. R. Schneider, PIERCE COUCH HENDRICKSON BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma, For Respondents-Appellees. WINCHESTER, J. ¶1 The issue in this cause is whether the three-judge panel’s order is too vague for appellate review. We hold that under these facts, the panel’s order does not meet the standards set out in our case law and therefore must be remanded for review by the panel. I. FACTS AND PROCEDURE ¶2 Charles McGuire, the claimant, presented the following statement of facts. He works as a driver and sales representative for N. Glantz & Son, LLC, the employer. He traveled Tuesday through Friday in his capacity as an employee for the respondent, N. Glantz & Son. In March of 2005, he became ill and was ultimately diagnosed with acute hepatitis A. Mr. McGuire claimed he contracted the disease from a restaurant while traveling on company business. During the relevant time, he ate at restaurants only when he was on the road for his job. When he was home, he or his wife prepared their meals and all family members ate the same food. ¶3 The employer asserts that Mr. McGuire claimed he was exposed to hepatitis A and C while working as a route driver in Arkansas. The employer states he sought medical treatment on March 30, 2005, with complaints of nausea, vomiting and abdominal pain. He had markedly elevated liver function abnormalities, and after an initial diagnosis of gall bladder problems, he underwent gall bladder surgery on April 2, 2005, and was subsequently diagnosed with hepatitis A and C. ¶4 As medical evidence, Mr. McGuire submitted the deposition of his doctor, and the trial court accepted it as Exhibit A over the objection of the employer. The doctor testified that Mr. McGuire had both hepatitis A and C, and that the symptoms to those two types 2544
would be the same. The doctor testified that he believed Mr. McGuire contracted hepatitis C from his parents, who were both positive for that disease. He testified that hepatitis C may be transmitted from blood serum transfer, such as needles or transfusions, and that Mr. McGuire may have contracted the disease when he was born. The doctor explained that the hepatitis A virus is almost exclusively transmitted through an oral-fecal route. He concluded that Mr. McGuire’s hepatitis C was a chronic problem and the hepatitis A was an acute episode, which usually appears within two to four weeks after the virus enters in the body. However, the doctor testified that he did not know exactly where the hepatitis A virus came from, except from his discussion with Mr. McGuire concerning his family’s eating habits and the fact that his family did not contract the virus. He did testify that other food sources, such as fruits and vegetables could be carriers of the fecal matter, as well as shaking someone’s hand. ¶5 In its order that awarded temporary total disability benefits, the trial court found that Mr. McGuire sustained an accidental personal injury in the nature of hepatitis A and consequential injury to the abdomen, that is, gall bladder, liver and abdominal hernia, due to surgery arising out of and in the course of the claimant’s employment. The court concluded that the employer’s notice defense had been overcome by testimony that Mr. McGuire’s wife had given sufficient notice, and that the claimant had proven his case by a preponderance of the evidence. The order recited that Mr. McGuire had several exposures on the road while in the respondent’s employ and that at least one of them had caused the injury, and that this proof was sufficient to convince the court that the claimant’s incurable and infectious disease or injury resulted from an on-thejob exposure. The court further stated that the record presented no evidence that the disease could have been contracted at a place other than the place of employment. ¶6 Pursuant to Rule 601 of the Rules of the Workers’ Compensation Court, the employer requested review of the order, and challenged both the competency and weight of the evidence of an injury and the timely notice to the employer of an on-the-job injury. The threejudge panel, in its order on appeal, vacated the decision of the trial court, finding that the order was contrary to law and against the clear
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weight of the evidence. It found that the “claimant did not sustain an accidental personal injury arising out of and in the course of claimant’s employment” with the respondent. Mr. McGuire appealed, and the Court of Civil Appeals vacated the order of the three-judge panel, reinstated the trial court’s order, and remanded the matter to the trial court for further proceedings. II. STANDARD OF REVIEW ¶7 When the order of the trial court is vacated by the three-judge panel, the trial court’s order stands replaced with that of the review panel, so that there is never more than one final decision to be reviewed in the appellate courts. Parks v. Norman Municipal Hospital, 1984 OK 53, ¶ 11, 684 P.2d 548, 551. When considering the order of the three-judge panel, the reviewing appellate court applies the law’s traditional any-competent-evidence test of correctness and canvasses the facts, not with an object of weighing conflicting proof to determine where the preponderance lies, but only for the purpose of ascertaining whether the tribunal’s decision is supported by competent evidence. Dunkin v. Instaff Personnel, 2007 OK 51, ¶ 10, 164 P.3d 1057, 1060. III. ANALYSIS ¶8 Mr. McGuire argues that the order of the three-judge panel does not make requisite findings to enable this Court’s review. He continues that the panel is required “to make specific findings of the ultimate facts responsive to the issues formed by the evidence as well as conclusions of law upon which its order is to be tested.” Dunkin, 2007 OK 51, ¶ 13, 164 P.3d at 1060. In applying this rule he observes that the order of the trial judge contained specific findings of fact and of law, but the order of the three-judge-panel states merely that Mr. McGuire did not sustain an accidental personal injury in his employment. He claims this is boilerplate language disallowed by this Court in Benning v. Pennwell Publishing, Inc., 1994 OK 113, ¶ 7, 885 P.2d 652, 655, and that review by this Court of the panel’s order is impossible because the Court would not be able to determine if the panel denied the claim based on an interpretation of law, or upon a factual basis. The respondent answers that the Benning and Dunkin cases cited by the claimant to support his argument, are distinguishable because the order of the three-judge panel in the case now before this Court was solely focused on the Vol. 81 — No. 30 — 11/13/2010
single defense position that the claimant did not sustain an injurious exposure to hepatitis A during the course and scope of his employment with the respondent. ¶9 Regarding appeals to the three-judge panel, Rule 60(A)(3) of the Rules of the Worker’s Compensation Court, 85 O.S.2001, ch. 4, app., provides that request for review shall include a specific statement of each conclusion of law and finding of fact urged as error, and that general allegations will not be accepted. Error not raised before the panel cannot be considered by this Court or in the Court of Civil Appeals. Bostic Tank Truck Service v. Nix, 1988 OK 128, ¶11, 764 P.2d 1344, 1349. When the respondents filed a request for review, ten reasons were listed.2 Just as the Court of Civil Appeals observed, the employer’s defenses included legal and factual arguments. The Request for Review raised the issues of whether the notice of an injury was properly made, whether it was timely, and whether the employer was prejudiced by untimely notice. The employer also raised the issue of whether Mr. McGuire sustained an injurious exposure to hepatitis A during the course and scope of his employment. ¶10 Along with its Request for Review, the respondent/employer and its insurance carrier submitted a memorandum brief to the threejudge panel that covered the factual issues regarding whether the claimant had been exposed to hepatitis during the course of his employment, and the amount of evidence tending to prove that his exposure and disease could not be linked to his employment by either the claimant or his medical expert. The employer’s brief complained that the second order issued by the trial judge was identical to the first, even though claimant had submitted his medical expert testimony by deposition and the employer’s subsequent competency and evidentiary sufficiency objections were not addressed in the second order. ¶11 With two general allegations and eight specific allegations for review, the order of the three-judge panel is insufficient to inform this Court of the basis for its conclusion that the trial court’s order was against the clear weight of the evidence. Did the three-judge panel reject the evidence of timely notice of injury, or that the claimant was exposed to hepatitis A during the course and scope of his employment, or that his injury was caused by hepatitis A and not hepatitis C?
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¶12 On remand, the three-judge panel shall make specific findings of the law and facts it finds were contrary to law and against the clear weight of the evidence during its review of the trial court’s order. Only then can this Court provide a meaningful review of the panel’s legal conclusions and factual determinations. Does the three-judge panel reject the finding of the trial court that the claimant sustained an accidental personal injury in the nature of hepatitis A, arising out of the course of his employment? The claimant’s physician testified that the claimant had hepatitis A and hepatitis C. Does the three-judge panel reject the finding that the hepatitis A caused a consequential injury to the abdomen (gall bladder, liver and abdominal hernia) due to surgery? Does the three-judge panel reject the finding that the respondents’ notice defense was overcome by testimony that the claimant’s wife gave sufficient notice? Such questions must be answered before this Court can meaningfully review the order.
“7). The Order is in error for failing to recognize claimant’s preexisting medical history exposure and infection with Hepatitis C. “8). The Order is in error and unsupported by the testimony or competent medical evidence supporting the consequential injury to the abdomen in the nature of gall bladder, liver and abdominal hernia as found in Paragraph No. 1, as well as the finding that the claimant had sustained injury in January 2005 and February 2005. “9). The Order is in error for failing to address and rule on Respondent’s objections to the competency and evidentiary sufficiency of claimant’s medical witness testimony of Dr. Richard Hastings by deposition introduced at hearing on February 6, 2008. “10). The Court has resubmitted the identical same Order, although under new date of February 12, 2008, as that previously submitted under date of September 18, 2007, that was subsequently withdrawn as having been issued prematurely, even before the submission of claimant’s medical evidence. Such action clearly reflects an erroneous decision based on far less than the entirety of the evidence and must be vacated.”
CERTIORARI PREVIOUSLY GRANTED; THE COURT OF APPEALS’ OPINION AND THE THREE-JUDGE PANEL’S ORDER ARE VACATED; THE CLAIM IS REMANDED TO THE THREE-JUDGE PANEL FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS PRONOUNCEMENT. CONCUR: EDMONDSON, C.J., HARGRAVE, KAUGER, WATT, WINCHESTER, COLBERT, REIF, JJ. CONCURS IN RESULT: TAYLOR, V.C.J. 1. The respondents’ Request for Review states that the appeal is being taken pursuant to Rule 31 of the Rules of the Workers’ Compensation Court, but that rule was renumbered Rule 60 on January 30, 2006, and effective that date. 2. “1). The Order is contrary to the law and against the clear weight of the evidence. “2). The Order is not supported by any competent evidence. “3). The Order is in error as the record is entirely devoid of any competent medical evidence of any exposure to Hepatitis A during the course and scope of claimant’s employment with Respondent. “4). The finding of timely Notice of an injury by an apparent hearsay statement attributed to the claimant’s wife does not meet the preponderance of the evidence threshold as related in Paragraph No. 2 of the Order. “5). The findings that the Respondent failed to provide medical treatment within three days of the injury are not supported by any competent evidence. The claimant’s untimely assertion of an on the job injury has seriously prejudiced any opportunity for the Respondent to provide medical treatment and the findings of Paragraphs No. 7 and No. 8 are contrary to law. “6). The findings of Paragraph No. 4 that claimant ‘proved’ several exposures is not supported by any competent evidence, any medical testimony or by the claimant himself who admitted he did not know when he had ever been exposed to the virus. The finding that the claimant suffers from an ‘incurable and infectious disease’ is contrary to the medical evidence and testimony that showed claimant had fully recovered from the virus at the time of trial.
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Court of Criminal Appeals Opinions 2010 OK CR 24 MICHAEL DEWAYNE SMITH, Petitioner, -vs- STATE OF OKLAHOMA, Respondent. No. PCD-2010-150. November 5, 2010 OPINION DENYING SECOND APPLICATION FOR POST-CONVICTION RELIEF, MOTION FOR DISCOVERY, AND MOTION FOR EVIDENTIARY HEARING A. JOHNSON, VICE-PRESIDING JUDGE: ¶1 This matter is before the Court on Petitioner Michael Dewayne Smith’s second application for post-conviction relief, motion for discovery, and motion for evidentiary hearing. A jury convicted Smith in 2003 in the District Court of Oklahoma County, Case No. CF-20021329, of the first degree murders of Janet Moore and Sarath Pulluru. The jury assessed a sentence of death for each murder.1 Since then Smith has challenged his Judgment and Sentence on direct appeal2 and in collateral proceedings in this Court.3 These challenges were unsuccessful. ¶2 In this application, Smith asserts the following claims: 1. His death sentence violates the Eighth and Fourteenth Amendments to the United States Constitution because he is mentally retarded, and trial, appellate, and post-conviction counsel were constitutionally ineffective for failing to raise this claim. 2. His convictions and sentences are unreliable, in violation of due process, because the State withheld exculpatory evidence. 3. Trial, appellate, and post-conviction counsel were constitutionally ineffective for failing to present evidence that Smith could not have knowingly and voluntarily waived his Mirandawarned rights because he was under the influence of phencyclidine (PCP) and because he suffers from organic brain damage and is mentally retarded. 4. Trial, appellate, and post-conviction counsel were constitutionally ineffective for failing to present a meaningful mitigation case by providing the jury with evidence that he suffers
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from drug-induced organic brain damage and low intelligence. 5. The trial court’s answer to two jury questions outside the presence of counsel violated the Sixth and Fourteenth Amendments to the United States Constitution. 6. The cumulative effect of errors at the guilt and sentencing phases of trial violated the Eighth and Fourteenth Amendments to the United States Constitution. 1. Mental Retardation ¶3 Smith claims his death sentence violates the Eighth Amendment to the United States Constitution because he is mentally retarded. Smith bases his claim on the United States Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 2252, 153 L.Ed.2d 335 (2002), which held that execution of mentally retarded criminals is prohibited by the Eighth Amendment as excessive punishment. Atkins did not set out an explicit definition for mental retardation, but left it to the states to develop ways to identify mentally retarded criminals and exempt them from the death penalty. See id. at 317, 122 S.Ct. at 2250 (“we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon execution of sentences”) (quoting Ford v. Wainwright, 477 U.S. 399, 416-417, 106 S.Ct. 2595, 2605, 91 L.Ed.2d 335 (1986)). Four years after Atkins, the Oklahoma Legislature enacted 21 O.S.Supp.2006, § 701.10b. Section 701.10b governs the death penalty and mental retardation and states in relevant part: C. The defendant has the burden of production and persuasion to demonstrate mental retardation by showing significantly subaverage general intellectual functioning, significant limitations in adaptive functioning, and that the onset of the mental retardation was manifested before the age of eighteen (18) years. An intelligence quotient of seventy (70) or below on an individually administered, scientifically recognized standardized intelligence quotient test administered by a licensed psychiatrist or psychologist is evidence of significantly subaverage gen-
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eral intellectual functioning; however, it is not sufficient without evidence of significant limitations in adaptive functioning and without evidence of manifestation before the age of eighteen (18) years. In determining the intelligence quotient, the standard measurement of error for the test administrated shall be taken into account. However, in no event shall a defendant who has received an intelligence quotient of seventy-six (76) or above on any individually administered, scientifically recognized, standardized intelligence quotient test administered by a licensed psychiatrist or psychologist, be considered mentally retarded and, thus, shall not be subject to any proceedings under this section. (Emphasis added). ¶4 Smith asserts that he meets the statutory criteria for being mentally retarded because: (1) he has consistently scored within the range of mental retardation on standardized intelligence quotient tests; (2) he has significant limitations in adaptive functioning; and (3) the onset of mental retardation occurred before he was eighteen years old. ¶5 Smith did not raise this claim in the trial court, on direct appeal, or in his first application for post-conviction relief. Therefore, unless the claim could not have been presented previously in a timely application for post-conviction relief because the factual basis for the claim was not available or ascertainable through the exercise of reasonable diligence on or before that date, the claim is waived and we do not grant relief. 22 O.S.Supp.2006, § 1089(D)(8).
instrument. Dr. Saint Martin’s report also includes his opinions concerning Smith’s limitations on adaptive functioning based on interviews with Smith’s mother, stepfather, long-term cellmate, and other relatives. ¶7 It is clear from the face of this proffered evidence that Dr. White and Dr. Bianco’s reports, and the I.Q. scores included in them, were available well before Smith’s trial in August of 2003 and before his first application for post-conviction relief in May of 2006. Dr. Saint Martin’s report, however, was not written at the time of Smith’s first application for post-conviction relief, but was apparently written on December 29, 2009, 120 days before the filing of the instant application. Specific information about Smith’s adaptive functioning contained in Dr. Saint Martin’s report was derived from interviews with Smith’s family members and cellmate. Similar information from some of these same family members was presented as mitigation evidence in the sentencing phase of Smith’s trial and as part of his first application for post-conviction relief. Because the evidence proffered as the factual basis for this claim was available before Smith’s first application for post-conviction relief, or was not presented to this Court within sixty days of its discovery, this claim is waived. 22 O.S.Supp.2006, §§ 1080 -1089; Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App (2010); see also Berget v. State, 1995 OK CR 66, ¶ 2, 907 P.2d 1078, 1080.
(2) a report by psychologist Faust Bianco, PhD, dated April 4, 2003, which, among other things, includes a full-scale I.Q. score of 79 for Smith based on the Wechsler Adult Intelligence Scale — III (WAIS-III) instrument;4
¶8 Nevertheless, Smith attempts to excuse his failure to timely raise this issue by claiming that the failure was the result of ineffective assistance of trial, appellate, and post-conviction counsel. Smith argues that because he was represented on direct appeal by an attorney who represented him at trial, he could not have raised this issue until his first application for post-conviction relief when he was represented by different counsel. Assuming that Smith’s failure to raise this issue on direct appeal is excused because he was represented by the same attorney at trial and on appeal, see Davis v. State, 2005 OK CR 21, ¶ 6, 123 P.3d 243, 24546, the issue becomes whether post-conviction counsel was ineffective for not raising the mental retardation claim.5
(3) a report by psychiatrist-neurologist-attorney Manuel Saint Martin, M.D., J.D., dated December 29, 2009. The report includes a full scale I.Q. score for Smith of 71 based on the Wechsler Adult Intelligence Scale–IV (WAIS-IV)
¶9 The heart of an ineffective assistance of counsel allegation is the underlying substantive claim that counsel supposedly mishandled. Washington v. State, 1999 OK CR 22, ¶ 57, 989 P.2d 960, 977. To determine whether an appel-
¶6 In support of his claim, Smith proffers three items of evidence: (1) a report by psychologist Jerry White, PhD, dated January 24, 2001, which, among other things, includes a full-scale I.Q. score of 76 for Smith based on the Wechsler Adult Intelligence Scale — Revised (WAIS-R) instrument;
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lant has met his burden of proving counsel’s performance was deficient and that he was prejudiced by that performance, we review the merits of the appellant’s substantive claim. Id. Unless an appellant meets this burden, the substantive claim remains waived. Id. ¶10 To meet the threshold requirement of 21 O.S.Supp.2006, § 701.10b, that he must show an intelligence quotient of 70 or below on an individually administered, scientifically recognized standardized intelligence quotient test administered by a licensed psychiatrist or psychologist, Smith proffers documents showing that he was given standard I.Q. tests in 2001, 2003, and 2009 with the following results: Test WAIS-R WAIS-III WAIS-IV
that no defendant be considered mentally retarded who has received an I.Q. score of 76 or above on any scientifically recognized standardized test, the Legislature has implicitly determined that any scores of 76 or above are in a range whose lower error-adjusted limit will always be above the threshold score of 70. ¶11 It is clear then, that with two I.Q. scores of 76 and 79, Smith’s current claim fails under the express language of 21 O.S.Supp.2006, § 701.10b. Consequently, prior counsel’s failure to raise the mental retardation issue was not deficient performance. Neither trial, appellate, nor post-conviction counsel were ineffective. This issue is waived.
Test Date Smith’s Age Full Score IQ Reference 01/24/2001 04/04/2003 11/20/2009
18 20 27
76 79 71
Att. 22 Att. 21 Att. 7
2. Exculpatory Evidence
Test Test Date Full Score I.Q. Adjusted Range at 95% Confidence Interval6 WAIS-R 01/24/2001 76 64-74 WAIS-III 04/04/2003 79 69-79 WAIS-IV 11/20/2009 71 66-74
¶12 Smith claims his convictions and sentences are unreliable and violate his rights to due process and a fair trial. Smith contends that recently executed affidavits by trial witnesses Marcus Berry and Sheena Johnson demonstrate that: (1) the State withheld exculpatory evidence; (2) the trial judge was biased; and (3) the State failed to correct perjured testimony. In their affidavits, Berry and Johnson recant portions of their trial testimony and claim that they testified falsely because they were threatened and coerced by police and the trial judge. Smith contends that the evidence of coercion and threats against these two witnesses was in the possession of the police and prosecutors and that this information was exculpatory because it would have shown that Johnson and Berry’s testimony was not credible.
The problem with this argument is that while the language of section 701.10b directs that an I.Q. score near the cutoff of 70 be treated as a range bounded by the limits of error, it also directs unequivocally that no such treatment be afforded to scores of 76 or above. In particular, after stating that “[i]n determining the intelligence quotient, the standard measurement of error for the test administered shall be taken into account,” section 701.10b goes on to say: “however, in no event shall a defendant who has received an intelligence quotient of seventy-six (76) or above on any individually administered, scientifically recognized, standardized intelligence quotient test administered by a licensed psychiatrist or psychologist, be considered mentally retarded and, thus, shall not be subject to any proceedings under this section” (emphasis added). By directing
¶13 Sheena Johnson’s affidavit is dated December 9, 2009. In the affidavit, Johnson alleges that: (1) her children were taken away from her by the trial judge to force her to testify against Smith; and (2) she testified falsely about certain statements Smith made to her about the Pulluru murder and that she did so using information police told her to include in her testimony. Johnson’s allegation about her children being taken from her as coercion was known at the time of Smith’s 2003 trial. It was discussed between Smith’s trial attorney, the judge, and the prosecutor, in response to the prosecutor’s objection to Smith’s cross-examination of Johnson, in which defense counsel inquired into Johnson’s reasons for testifying.7 Johnson’s fear about losing her children was also known at the time of Smith’s preliminary hearing in 2002, when she stated her belief that
Smith argues that because section 701.10b sets the threshold for mental retardation at an I.Q. score of 70, and because it requires that “the standard measurement of error for the test administered shall be taken into account,” all of his previous I.Q. scores fall into a range whose lower limits fall into the mentally retarded category when the standard error of measurement is considered for each score. Specifically, Smith argues that the error-adjusted ranges for each of these three tests are as follows:
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if she did not testify “I would have got arrested and my — I have a three-month-old baby and he would have — child welfare would have got him” (P.H. 54). Obviously, Johnson’s fear of having her children taken away from her as retribution for not testifying was information that was known at the time of Smith’s trial and could have been used to raise this issue on direct appeal or in Smith’s first application for post-conviction relief. This information cannot serve as the factual basis for a second application for post-conviction relief. 22 O.S.Supp.2006, § 1089(D)(8). ¶14 Additionally, the single piece of new information contained in Johnson’s affidavit (i.e., that she lied about Smith’s statements concerning the Pulluru murder under police direction) was certainly available at the time the affidavit was executed on December 9, 2009, if not earlier. Under our rules, a second application for post-conviction relief must be filed within sixty days from the date a previously unavailable factual basis for an application is discovered. Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App (2010). Based on the date of the affidavit, the factual basis for this claim was known for at least 132 days before the instant application was filed. Thus this aspect of Smith’s claim is also procedurally barred. ¶15 Marcus Berry’s affidavit is dated January 11, 2010. In the affidavit, Berry alleges that he testified falsely on a number of points at Smith’s trial. Again, under our rules, a second application for post-conviction relief must be filed within sixty days from the date a previously unavailable factual basis for an application is discovered. Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App (2010). Based on the date of the affidavit, the factual basis for this claim was known for at least 99 days before the instant application was filed. This aspect of Smith’s claim is procedurally barred. 3. Ineffective Assistance of Counsel and Miranda Waiver ¶16 Smith claims that trial counsel was constitutionally ineffective for failing to adequately investigate and present evidence that he could not have knowingly or voluntarily waived his Miranda-warned8 rights because he: (1) was under the influence of phencycledine (PCP); (2) suffers from low intelligence; and (3) 2552
is mentally retarded and has organic brain damage. A. PCP Intoxication ¶17 Smith raised the PCP intoxication claim in the district court and on direct appeal. Here, however, he claims that trial counsel was ineffective for not presenting the testimony of properly credentialed experts who could have opined that Smith’s conduct during the videotaped interview with detectives showed that he was under the intoxicating effects of PCP and was, therefore, unable to knowingly and voluntarily waive his Miranda-warned rights. Smith contends that his failure to raise this aspect of his claim on direct appeal should be excused because he was represented on direct appeal by a constitutionally ineffective attorney who assisted with his trial defense. He contends further that his failure to raise the issue in his first application for post-conviction relief should be excused because post-conviction counsel was similarly ineffective for not raising the issue. ¶18 Assuming that Smith’s failure to raise this issue on direct appeal is excused because he was represented by the same attorney at trial and on appeal, see Davis v. State, 2005 OK CR 21, ¶ 6, 123 P.3d 243, 245-46, the question devolves to whether post-conviction counsel was ineffective for not challenging trial counsel’s failure to present testimony from “properly credentialed” experts to the effect that Smith could not have voluntarily waived his Miranda-warned rights because his actions in the videotaped interview showed he was intoxicated by the drug PCP at the time of the waiver. ¶19 To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To establish prejudice, “it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. at 2067. Rather, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
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¶20 At a pre-trial Jackson v. Denno hearing,9 the district court heard the testimony of defense expert Dr. Thomas Kupiec, a forensic toxicologist. Dr. Kupiec conducted tests on Smith’s pubic hair that revealed that Smith still had detectable quantities of PCP in his body after being incarcerated. Dr. Kupiec explained to the court that because the PCP was found in Smith’s hair, it indicated that he was a longterm, frequent, or chronic PCP user. Dr. Kupiec believed that as a long-term user, Smith was suffering from PCP psychosis at the time he was interrogated. Furthermore, Dr. Kupiec testified that Smith’s reported behavior at the county jail on the day he was arrested was consistent with someone under the influence of PCP and that Smith could have been under the influence of PCP when he was interrogated by detectives three days after his arrest. The district court judge refused to allow Dr. Kupiec to answer defense counsel’s question about whether Smith’s long-term use of PCP affected his ability to understand and exercise his Miranda-warned rights. Dr. Kupiec was allowed to testify, however, that because he was not a psychologist or psychiatrist, he would be unable to determine from watching the videotape of Smith’s interrogation whether he was under the influence of PCP. ¶21 Smith contends that trial counsel were ineffective at this point for not presenting a properly credentialed expert to testify that his conduct during the videotaped interview showed that he was under the influence of PCP and, therefore, that he was unable to understand the rights he was waiving. To support this contention, Smith cites to seven documents proffered as attachments to the appendix of exhibits accompanying his application. Five of the cited attachments (Atts. 14-18) are not included in the appendix, but are listed in the appendix’s index as “[r]emoved” as “not relevant to the issues presented” (Appendix, unnumbered page 2). The two remaining cited attachments consist of a report by Dr. Deborah C. Mash, PhD, Professor of Neurology at the University of Miami School of Medicine, dated January 12, 2010, and a report by Dr. Manuel Saint Martin, M.D., J.D., Psychiatrist-Neurologist, January 6, 2010. These reports contain each doctor’s assessment of the videotape of Smith’s interview with detectives. ¶22 Dr. Saint Martin observes that in the video Smith appears agitated, has a rambling speech pattern, and that he responds to quesVol. 81 — No. 30 — 11/13/2010
tions in an “animated manner that is inappropriate to the nature of the situation” (Att. 6 at 1). According to Dr. Saint Martin, “PCP could result in Mr. Smith’s behavioral manifestations on the video recording” because “some PCP users have symptoms of intoxication for 24 to 48 hours,” even though the typical clinical picture of PCP intoxication only lasts four to eight hours (Att. 6 at 2). ¶23 Dr. Mash also reviewed the videotape and described Smith’s behavior and speech as “bizarre and often unintelligible, grandiose, delusional in part and [showing] evidence [of] fragmented thought patterns” (Att. 4 at unnumbered page 5). From these observations, Dr. Mash concludes “with certainty” that Smith appeared to have been in a state of PCP intoxication at the time he confessed to detectives (Att. 4, unnumbered page 5). Like Dr. Saint Martin, Dr. Mash also notes that PCP intoxication typically lasts four to eight hours after a recreational dose, “with some users reporting subjective effects for 24-48 hr” (Att. 4 at unnumbered page 4). According to Dr. Mash, the combined effects of PCP intoxication and Smith’s low intellectual functioning and organic brain damage together impaired his higher order reasoning and judgment abilities such that “he could not adequately comprehend his Miranda rights or assess the ramifications of a waiver of those rights” (Att. 4 at unnumbered page 2). ¶24 We find that this proffered evidence is insufficient to show that trial counsel was ineffective. Specifically, we are convinced that expert testimony such as that contained in these two reports would not have changed the district court’s decision on the voluntariness of Smith’s waiver or our opinion on direct appeal affirming that decision. See Strickland, 466 U.S. at 693-94, 104 S.Ct. at 2067-68 (holding that to establish prejudice sufficient to warrant finding of ineffective assistance, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”). ¶25 In finding that Smith voluntarily waived his Miranda-warned rights, the district court had already heard Dr. Kupiec’s testimony explaining that Smith could have been experiencing lingering effects of PCP intoxication when he was interviewed three days after his arrest. Dr. Saint Martin and Dr. Mash’s reports add nothing new in this regard. The only things that Dr. Saint Martin and Dr. Mash add
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are their observations of Smith’s conduct during the interview and their opinions based on those observations that Smith was of such limited intellectual functioning and so intoxicated by PCP at the time he waived his Mirandawarned rights that he could not understand what he was doing. ¶26 While the trial court sitting as the trier of fact in this instance did not have Dr. Mash or Dr. Saint Martin’s opinions before her, she did hear a proffer from defense counsel that a neuropsychologist, Dr. Faust Bianco, would testify as to Smith’s low intelligence and how his slowness in processing information would have been exacerbated by PCP. The court was also told that Dr. Bianco would testify as to the differences between Smith’s behavior on the videotape and his behavior when Dr. Bianco interviewed him one year later. ¶27 After hearing the proffer and ruling that Dr. Bianco’s testimony about Smith’s intelligence and differing behavior in the two settings would be irrelevant, the district court judge explained in detail how her own observations of Smith during the two-hour videotaped interview showed a cocky and extremely verbal individual, who was able to mislead people, read a newspaper, persuade others to assist him in hiding and avoiding arrest, conceal his identity, obtain an apartment, and explain various gang activities. According to the judge, these observations convinced her that Smith demonstrated sufficient intelligence and sufficiently clear thinking for her to find that the State had met its burden of showing that Smith’s waiver of rights was voluntary. On direct appeal, we concluded that the videotaped interview showed “a coherent Smith calmly conversing with detectives, giving rational answers to their questions, and apparently capable of understanding the Miranda warnings provided by the interrogating officers.” Smith v. State, 2007 OK CR 16, ¶ 46, 157 P.3d 1155, 1171. ¶28 Based on the district court’s careful review of Smith’s behavior on the interview tape, and in light of the fact that the district court heard expert testimony that Smith may have been suffering from the lingering effects of PCP intoxication at the time of this interview and received proffered evidence of Smith’s low intelligence, we do not find a reasonable likelihood that testimony from Dr. Mash or Dr. Saint Martin (or both) would have changed the outcome of the judge’s conclusion that Smith vol2554
untarily waived his Miranda-warned rights. Nor do their opinions change our conclusion as stated in Smith’s direct appeal that the trial court’s finding was proper. ¶29 Because there is not a reasonable likelihood that Dr. Mash and Dr. Saint Martin’s testimony would have changed the outcome of the trial court’s decision on the voluntariness of Smith’s Miranda waiver, Smith fails to show prejudice flowing from the alleged errors committed by trial, appellate, and post-conviction counsel. This claim does not qualify for relief under Strickland. B. Low Intelligence ¶30 Smith also claims that trial counsel were ineffective in their challenge to the voluntariness of his statements for not providing the trial court with expert evidence that he (Smith) suffered from organic brain damage and low intelligence (caused by his long term daily use of PCP). This claim is belied by the record. ¶31 While not couched in terms of organic brain damage, Smith’s attorneys offered the expert testimony of forensic toxicologist Dr. Kupiec and proffered the testimony and report of Dr. Bianco, a clinical neuropsychologist, to the effect that Smith was suffering from PCPinduced low intelligence, and therefore could not have voluntarily waived his Mirandawarned rights. Specifically, after extensive discussion with the judge, defense counsel (on May 21, 2003) summarized the argument and proffer as follows: Basically, we would show that he [Smith] has a core intellectual range of 79 that is borderline to low average intelligence that affects his processing speed. Dr. Bianco would state that he has decreased information processing speed, meaning his ability to understand, to formulate and make decisions based on information given to him verbally. I believe the doctor would testify, as I stated earlier, that he was reading at a third or fourth grade level or very low level and math was certainly third or fourth grade as I recall. That he [Dr. Bianco] did look at the tape. That there was a substantial difference between his [Smith’s] conduct on the tape of the interview in 2002, versus his doctor’s own clinical observations a year later and that this difference could very well be due to the slowness of processing as well as the
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PCP effect that has been demonstrated by, we believe, other witnesses as well as the testimony of Dr. Kupiec. That the test clearly indicated that Michael has a substantial abuse problem. That if allowed to give an opinion he would state that the functioning at a borderline or low average range with deficiencies in the information processing speed and the influence of the chronic and current PCP use would affect his ability to understand the Miranda warnings and more importantly to understand the consequences of waiving those warnings. He [Dr. Bianco] would also state that if a person who is a chronic user, says that they think better under the drug that’s contrary to the clinical studies and information. Based on this record, there is no merit to Smith’s claim that trial counsel were ineffective for not challenging the voluntariness of Smith’s Miranda waiver on the grounds of low intelligence and chronic long-term drug abuse. C. Mental Retardation and Organic Brain Damage ¶32 Smith also argues that trial, appellate, and post-conviction counsel were ineffective for not challenging the voluntariness of his Miranda waiver by claiming he was mentally retarded and suffering organic brain damage from longterm drug abuse. In support of this claim, Smith relies on those portions of Dr. Mash and Dr. Saint Martin’s 2010 reports that opine that Smith is mentally retarded and that Smith’s substance abuse could have caused brain damage that impaired his cognitive functioning to the extent that he could not adequately comprehend the Miranda warnings given him by police or assess the consequences of a waiver of the rights covered by those warnings. ¶33 Again, to prevail on a claim of ineffectiveness of counsel, a defendant must show prejudice from the alleged error of counsel, Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, and to establish prejudice, “[it] is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding,” id. at 693, 104 S.Ct. at 2067. Rather, a defendant must show “a reasonable probability that, but for counsel’s [alleged] unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. Vol. 81 — No. 30 — 11/13/2010
¶34 In this instance, despite argument and proffers of evidence from counsel about Smith’s low intelligence and mental impairment from drug abuse, the trial court judge concluded that Smith had sufficient intellectual functioning to waive his Miranda-warned rights. To support her conclusion, the judge gave a detailed account of her own observations of Smith’s behavior on the two-hour police interview videotape and explained how Smith’s behavior on that tape convinced her that Smith possessed sufficient intelligence and cognitive functioning to voluntarily waive his Mirandawarned rights. Based on our review of the judge’s rationale and the record of the Jackson v. Denno hearing, we are not persuaded that Dr. Mash and Dr. Saint Martin’s opinions about Smith’s mental retardation or cognitive functioning would have swayed the judge to a different result. Hence there was no prejudice and counsel were not ineffective. 4. Ineffective Assistance of Counsel in Mitigation Phase ¶35 Smith claims that trial counsel were ineffective in presenting his mitigation case at sentencing for failing to provide his jury with expert evidence that he suffered from organic brain damage and low intelligence caused by long-term daily use of the drug phencyclidine (PCP). Specifically, Smith cites to Dr. Saint Martin’s report in which he states that: (1) Smith suffers from a “brain insult” caused by substance abuse; and (2) long term use of PCP inhibits the brain’s ability to learn new information; (Appl. at 35-36, citing Att. 7 at 12-13). Smith also refers to Dr. Mash’s report in which she stated that: (1) tests on Smith indicated “non-specific brain damage affecting his attention, calculation, and short term memory [that] could be due to Mr. Smith’s substance abuse”; and (2) Smith’s chronic drug use contributed to “diffuse impairment of cognitive functioning” and “undoubtedly contributed to development of brain abnormalities” (Appl. at 36, citing Att. 4 at 3-5). Smith also cites to the April 4, 2003, report by Dr. Faust Bianco in which Dr. Bianco reported that Smith began smoking marijuana on a daily basis at age ten and started smoking PCP on a daily basis at age eleven. ¶36 Assuming without deciding that counsel were deficient for failing to present this type of mitigating evidence at the sentencing stage, Smith cannot demonstrate a reasonable probability that the evidence would have affected
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the jury’s weighing of the aggravating and mitigating evidence. Specifically, as other courts have observed, evidence of this sort has a “double-edged” quality. Wackerly v. Workman, 580 F.3d 1171, 1178 (10th Cir. 2009). That is, a jury presented with evidence that the defendant is a chronic substance abuser might draw a negative inference from that evidence just as easily as it might find it mitigating. See Davis v. Executive Dir. of Dep’t of Corr., 100 F.3d 750, 763 (10th Cir. 1996) (finding petitioner not prejudiced by counsel’s failure to investigate and present expert testimony at sentencing on nature and effects of his severe alcoholism because whatever the mitigating effect of such evidence, it was equally possible that jury would have faulted petitioner for repeated failures to address problem). In the current case in particular, such evidence might bolster a conclusion that the defendant represents a continuing threat to society, one of the aggravating circumstances charged in this case. Cf. Wackerly, 580 F.3d at 1178 (reviewing cases). ¶37 Given the uncertainty about how a jury might receive this type of evidence, we cannot find that Smith has demonstrated a reasonable probability that the jury would have reached a different sentencing result if it had been presented with evidence of Smith’s chronic use of PCP and its allegedly attendant brain damage. Smith’s counsel were not ineffective. See DeLozier v. Sirmons, 531 F.3d 1306, 1332 (10th Cir. 2008) (finding that appellate counsel’s decision not to argue that trial counsel was ineffective for failing to put on evidence of petitioner’s substance abuse was not ineffective assistance because such evidence can be considered a “two-edged” sword), cert. denied, ___ U.S., ___, 129 S.Ct. 2058, 173 L.Ed.2d 1138 (2008); Pace v. McNeil, 556 F.3d 1211, 1224 (11th Cir. 2009) (finding that trial counsel’s failure to present evidence of petitioner’s substance abuse was not deficient in part because “presenting evidence of a defendant’s drug addiction to a jury is often a ‘two-edged sword’; while providing a mitigating factor, such details may alienate the jury and offer little reason to lessen the sentence”) cert. denied, ___ U.S., ___, 130 S.Ct. 130, 175 L.Ed.2d 118 (2009); Jones v. Page, 76 F.3d 831, 846 (7th Cir. 1996) (finding that counsel’s failure to introduce evidence of petitioner’s drug abuse was reasonable strategic choice because such evidence was “double-edged sword”). 2556
5. Jury Notes ¶38 Smith claims his Sixth and Fourteenth Amendment rights were violated when the trial court judge replied to two jury notes without counsel being present. Smith acknowledges that this claim was raised and decided in his direct appeal. He requests, however, that we reconsider our disposition of this claim in the interest of justice. We find no miscarriage of justice in our previous disposition of this issue. This claim is denied. See Clayton v. State, 1995 OK CR 3, ¶ 3, 892 P.2d 646, 650 (holding that issues that were raised and decided on direct appeal are barred by res judicata from further consideration on petition for post-conviction relief). 6. Cumulative Error ¶39 Smith requests that even if we find that none of alleged errors set forth in this application require reversal of his conviction or sentence, we should nevertheless find that the cumulative effect of all the alleged errors and omissions at trial deprived him of his state and federal rights to a fair trial and a reliable sentence. We considered Smith’s cumulative error claim on direct appeal and found no merit to the claim because the single error identified was harmless. Smith, 2007 OK CR 16, ¶ 81, 157 P.3d at 1179. In this application, we have found no merit to any of Smith’s claims and have determined that trial, appellate, and post-conviction counsel were not ineffective. There is, therefore, no cumulative error to consider. CONCLUSION ¶40 After carefully reviewing Smith’s subsequent application for post-conviction relief, we conclude that he is not entitled to relief. Accordingly, his application is DENIED. Further, Smith’s motions for an evidentiary hearing and discovery are DENIED. 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. ATTORNEY FOR PETITIONER Steven M. Presson, Presson Law Office, 207 West Main Street, P.O. Box 5392, Norman, OK 73030-5392 ATTORNEYS FOR RESPONDENT W.A. Drew Edmondson, Oklahoma Attorney General, Robert Whittaker, Assistant Attorney
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General, 313 N.E. 21st Street, Oklahoma City, OK 73105 OPINION BY: A. JOHNSON, V.P.J. C. JOHNSON, P.J.: Concur LUMPKIN, J.: Concur LEWIS, J.: Concur SMITH, J.: Concur 1. Smith’s jury found two aggravating circumstances to support the death penalty: (1) that the murders were heinous, atrocious, or cruel; and (2) the existence of a probability that Smith would commit criminal acts of violence that would constitute a continuing threat to society. Smith’s jury also convicted him of first degree burglary, robbery with a firearm, and first degree arson. He was sentenced to twenty years imprisonment on the burglary count, thirty years on the robbery count, and thirty-five years on the arson count. 2. This Court affirmed Smith’s Judgment and Sentence in Smith v. State, 2007 OK CR 16, 157 P.3d 1155. Certiorari was denied by the United States Supreme Court in Smith v. Oklahoma, 552 U.S. 1191, 128 S.Ct. 1232, 170 L.Ed.2d 79 (2008). 3. Smith’s original application for post-conviction relief was denied in an unpublished opinion. See Smith v. State, Case No. PCD2005-142 (Feb. 24, 2009). 4. The report notes that the evaluation was performed at the request of Smith’s trial attorney, Wayne Woodyard of the Oklahoma Indigent Defense System. 5. We noted in our denial of Smith’s first application for postconviction relief that the record was not entirely clear that Smith was represented on direct appeal by the same attorney who represented him at trial. We nevertheless accepted post-conviction counsel’s representations to that effect and do the same here. See Smith v. State, Case No. PCD-2005-142 (Feb. 24, 2009) (not for publication) at 3. 6. These scores are taken from Dr. Saint Martin’s report. The scores are adjusted not only for the standard error of measurement, but also include a downward adjustment for the so-called Flynn Effect. The Flynn Effect is a theory based on the premise that results on any given I.Q. test will rise approximately 3 points for every 10 years that the test is in existence. The Flynn Effect has not achieved universal acceptance in courts where it has been raised. See Thomas v. Allen, 607 F.3d 749, 757-58 (11th Cir. 2010)(collecting cases). In this instance, however, unlike other jurisdictions that have considered the Flynn Effect, the Oklahoma Legislature has directed that only the standard error of measurement be included in the consideration of a defendant’s I.Q. scores when making a mental retardation determination. Compare, Thomas, 607 F.3d at 752, 757-58 (considering Flynn Effect, but doing so after noting that Alabama Legislature had not yet enacted procedures by which courts may determine if capital defendant is mentally retarded and thus ineligible for execution). Thus, it seems that under the Oklahoma statutory scheme, the Flynn Effect, whatever its validity, is not a relevant consideration in the mental retardation determination for capital defendants. 7. See Tr. Vol. 8 at 84-86. 8. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 9. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), established a defendant’s right to an in camera hearing on the voluntariness of a confession.
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Stunning color photography by nationally recognized photographer David Fitzgerald and insightful narrative by author Kent Frates, bare open the exciting past of each of Oklahoma’s 77 county courthouses and U.S. District Courts. Intriguing histories that often include the colorful characters that made Oklahoma unique.
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T HE OBA D IVERSITY C OMMITTEE will be presenting a forum on
JUDICIAL DIVERSITY at the 2010 OBA Annual Meeting Thursday Nov. 18, 2010 2 – 4 p.m. There will be a panel discussion of diversity in the judiciary by Oklahoma judges. OBA DIVERSITY COMMITTEE SCHOLARSHIP PROGRAM The OBA Diversity Committee will be giving three scholarships this year to a student at each of Oklahoma’s three law schools. Please consider making a donation towards this very important effort. If you wish to make a donation, please detach this stub and submit with your donation, payable to Oklahoma Bar Association, to Teresa Rendon, OBA Diversity Committee Scholarship 2901 N. Classen Blvd., Ste. 112, Oklahoma City, OK 73106.
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OBA/CLE Annual Meeting 2010 Crowne Plaza Hotel, Tulsa
November 17, 2010
DAY ONE
Family Law
Criminal Law
How Good Lawyers Survive Bad Times
Nuts and Bolts
Promenade D
Promenade B
Promenade C
Tulsa Ballroom
WEDNESDAY Registration 8 - 9 a.m.
Program Planner/ Moderator
Program Planner/ Moderator
Program Planner/ Moderator
Program Planner/ Moderator
Lori Pirraglia
Ben Brown Charles Sifers
Jim Calloway
Collin Walke
Session 1 9 - 9:50 a.m.
Client Intake: Starting Out on the Right Foot/Making Good Client Choices
Immigration & Criminal Law: A Practical Explanation in Light of Padilla v. Kentucky
50 Tips for Tough Times
Administrative Law Trials: We Aren’t in Kansas Anymore
Jon Ford
Session 2 10 - 10:50 a.m.
Gary Payne
Joan Lopez Campbell Cooke
Temporary Order Hearing: Exhibits Needed and Preparing Your Clients Phil Tucker
Session 3 11 - 11:50 a.m.
Jim Calloway
The Practical & Advance Use of the Science of Eyewitness Identification in the Courtroom PART I
Marketing on a Budget
Get Your Ethics! (ethics)
Mark A. Robertson
Gina Hendryx
The Thrifty Lawyer
Your Solo Shopping List
Professor Gary Wells Ph.D.
Finding Expert Witnesses - Business Valuators and Mental Health Professionals David Echols Eileen Echols
The Practical & Advance Use of the Science of Eyewitness Identification in the Courtroom PART 2
L. Michele Nelson
Jim Calloway
Professor Gary Wells Ph.D.
12-2 p.m. LUNCH (On your own) Session 4 2 -2:50 p.m.
Dissolution Depositions: Taking and Defending Donelle H. Ratheal
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Criminal Law Motions Practice
Free, Cheap and Easy Technology Tools
Cindy Danner Jim Drummond Brian Hermanson
Jim Calloway
The Oklahoma Bar Journal
Your Job as a Criminal Law Attorney Garvin Isaacs
Vol. 81 — No. 30 — 11/13/2010
OBA/CLE Annual Meeting 2010 cont’d Session 5 3 - 3:50 p.m.
Session 6 4 - 4:50 p.m.
Family Law
Criminal Law
How Good Lawyers Survive Bad Times
Nuts and Bolts
Trial Exhibits and Witness: Choosing and Preparation
Representing Persons Charged with Driving Under the Influence
Your Law Firm Finances
Bankrupty Chapter 7: The Ins and Outs
Kimberly Hays
Josh D. Lee Charles Sifers
The End/Beginning: Drafting the Decree/ Pre-Nups for New Beginnings
Working with the Media
Bill LaSorsa
Moderator Doug Dodd
Ted Blodgett
Jennifer Kirkpatrick
Cutting Costs & Coralling Clients without Compromising Ethics (ethics)
Panel Mike Arnett Jon Epstein Mark Hanebutt Dick Pryor Travis Pickens
Mastering the Art of the Deposition Ronald Walker
Gina Hendryx Travis Pickens
4:50 p.m. ADJOURN
November 18, 2010 THURSDAY Registration 8:30 - 9 a.m.
Topic
DAY TWO
Program Moderator: Judge Thomas C. Gillert, District Judge, Tulsa
9 a.m.
Picking Cotton: Our Memoir of Injustice and Redemption
Speakers: Jennifer Thompson-Cannino, Salem, NC Ronald Cotton, Mebane, NC
9:50 a.m.
The Science of Eyewitness Identification
Speaker: Gary D. Wells, Ph.D., Professor of Psychology, Iowa State University, Ames
10:40 a.m.
Break
10:50-11:50 a.m.
Eyewitness Identification in Oklahoma
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Panelists: Michael Huff, Tulsa Police Department, Homicide Division, Tulsa Douglas E. Drummond, Tulsa County First Assistant District Attorney, Tulsa Stephen Kunzweiler, Assistant District Attorney, Tulsa Jennifer Thompson-Cannino Ronald Cotton Gary Wells, Ph.D.
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2010 Registration Form
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HOTEL ACCOMMODATIONS:
Fees do not include hotel accommodations. For reservations contact: Crowne Plaza Tulsa Hotel at (800) 227-6963. Call by Oct. 26 and mention hotel code: Oklahoma Bar Association 2010 Convention for a special room rate of $105 per night. For hospitality suites, contact Craig Combs at (405) 416-7040 or e-mail: craigc@okbar.org. The Oklahoma Bar Journal
Vol. 81 — No. 30 — 11/13/2010
2011 OBA Board of Governors Vacancies Nominating Petition Deadline was 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: Gerald C. Dennis, Antlers 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: Scott Pappas, Stillwater Nominee: Gregg W. Luther, Shawnee 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: O. Christopher Meyers, Lawton Member-At-Large Current: Jack L. Brown, Tulsa (Three-year term: 2011-2013) Nominee: Renée DeMoss, Tulsa Nominee: Kimberly K. Hays, Tulsa Nominee: Mack K. Martin, Oklahoma City Vol. 81 — No. 30 — 11/13/2010
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. If no one has filed for one of the vacancies, nominations to any of the above offices shall be received from the House of Delegates on a petition signed by not less than 30 delegates certified to and in attendance at the session at which the election is held. 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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I
Volunteers Critical to OBA Success
understand that life is hectic, and you’re busy making a living at practicing law. I’m a small town lawyer; I know the challenges of making time for volunteer work. But your association needs you. It’s important that we have new people every year take an interest in the many areas in which we try to make a difference. Look at the list below, there’s got to be one that’s worth your time. Most meetings utilize videoconference, so if you are located near Tulsa, you are spared the travel time with a connection to the bar center in Oklahoma City. I’ve got some exciting plans for next year — so I hope I can count on you to get involved. The easiest way to sign up is online at www.okbar.org. Other sign-up options are to complete this form and either fax or mail it to the OBA. I need to hear from you by Dec. 1, 2010, so I can begin committee appointments for 2011.
Deborah Reheard, President-Elect
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q Please assign me to only one committee. q I am willing to serve on (two or three - circle one) committees. Besides committee work, I am interested in the following area(s): ________________________________________________________________________________________ Mail: Deborah Reheard, c/o OBA, P.O. Box 53036, Oklahoma City, OK 73152 Fax: (405) 416-7001
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Mark Your Calendar and Register Today
Annual Criminal Law Section Luncheon Crowne Plaza Hotel, Tulsa, Oklahoma Wednesday, November 17, 2010
N
ewly appointed Judge Clancy Smith of the Oklahoma Court of Criminal Appeals has graciously accepted our invitation to deliver the keynote address for the Annual Luncheon and Professional Advocate Awards Presentation of the Criminal Law Section of the Oklahoma Bar Association, to be held in the Crowne Plaza Hotel on Wednesday, November 17, 2010, during the OBA Annual Meeting. Judge Smith served as a Tulsa County Special Judge for 11 years and as District Judge for 5 years prior to her appointment by Chief Justice James Edmondson, and took the Court of Criminal appeals bench in early September. Please join us in welcoming Judge Smith to the Oklahoma Court of Criminal Appeals. A gourmet plated luncheon will be served. The luncheon is open to all OBA members, whether or not members of the Section. PLEASE register on or before November 12, 2010 if possible, so that we may ensure adequate luncheon plates are provided. However, walk-in registration is accepted at no extra cost.
Registration Form First Name (Print) ______________________________ Last Name (Print)___________________________________________ Address ___________________________________________________________________________________________________ City ________________________________________________________________ State ________ Zip ___________________ E-mail ____________________________________________________________________________________________________ Phone ( _____) ___________________________________________ Fax ( _____) _____________________________________ OBA Number: ________________________________________
Registration (Check appropriate boxes): [ ] $15 — Criminal Law Section Member attending the luncheon [ ] $20 per guest if accompanied by a member. Guest Name: ________________________ [ ] $30 — Nonmember (includes section membership for 2011)
$________Total Enclosed
Payment (Select One): Check ___ Visa ___ Master Card ___ Card # _____________________ Exp. Date ________ Signature required: ______________________________________________ Remit form and payment to Tracy Sanders, Membership Coordinator
OBA, P.O. Box 53036, Oklahoma City, OK 73152 or fax to (405) 416-7001 Vol. 81 — No. 30 — 11/13/2010
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Court of Civil Appeals 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 CIV APP 98 TIFFANY THOMAS PHILLIPS, on behalf of C.T., Plaintiff/Appellee, vs. JUSTIN LYNN WILLIAMS, Defendant/Appellant. Case No. 107,285. September 9, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE WILMA L. PALMER, TRIAL JUDGE AFFIRMED AND REMANDED James R. Gotwals, Mary L. Gutierrez, JAMES R. GOTWALS, & ASSOCIATES, INC., Tulsa, Oklahoma, for Plaintiff/Appellee, N. Scott Johnson, N. SCOTT JOHNSON & ASSOCIATES, PLLC, Tulsa, Oklahoma, for Defendant/Appellant. Jane P. Wiseman, Chief Judge: ¶1 Justin Lynn Williams appeals from the trial court’s order awarding attorney fees and costs to Tiffany Thomas Phillips (Mother). The issues on appeal are whether the trial court erred (1) in quashing Williams’ subpoena for Mother’s financial information, and (2) in finding Williams had the ability to pay some of Mother’s attorney fees and costs. After review of the appellate record, we find no error by the trial court, affirm its decision, and remand for the trial court to determine appellate attorney fees. FACTS AND PROCEDURAL BACKGROUND ¶2 On April 24, 2007, Mother filed a petition for protective order on behalf of her minor daughter, CT, alleging inappropriate touching by Williams, CT’s paternal grandfather. At the time of filing, the trial court granted Mother an emergency protective order for the minor child. ¶3 After several continuances of the emergency protective order, the hearing on the protective order began on February 22, 2008.1 The hearing continued on and off for several months concluding on September 4, 2008. In an order 2566
filed October 2, 2008, the trial court granted Mother on behalf of the minor child a final order of protection against Williams “for a period of 1 year and 6 months, until the 22nd day of April, 2010, and [Williams] is ordered to pay the costs of these proceeding[s].” ¶4 On October 31, 2008, Mother filed an “Application for Attorney’s Fees, Witness Fees and Costs” contending she was entitled to such fees and costs in the amount of $50,791.09 “pursuant to the provisions of 22 O.S. §60.2(C)(1), 12 O.S. §942, City Natl. Bank & Trust Co. v. Owens, 1977 OK 86, 565 P.2d 4, and this Court’s inherent power.” ¶5 On November 5, 2008, Williams issued a subpoena duces tecum requesting documentation and information regarding Mother’s payments to her attorney, her future obligations for payments to her attorney, and any communications regarding payments to her attorney. On November 14, 2008, Mother filed a motion to quash the subpoena duces tecum objecting to production of the documents based on attorney-client privilege and work product. Mother also objected on the basis of relevance arguing that such documentation is not relevant to determining whether Williams has the ability to pay as set forth in 22 O.S. Supp. 2009 §60.2(C)(1). On January 6, 2009, the trial court granted Mother’s motion to quash. ¶6 On February 5, 2009, Williams filed a response to Mother’s application for attorney fees arguing he has no ability to pay “any portion of the attorney’s fees, witness fees and costs incurred by [Mother] in this matter.” Williams further argued that Mother “has the ability to pay her attorney’s fees and costs and has in fact, paid same, while [Williams] continues to owe a substantial amount of monies to his attorney and Bart Trentham2 which [Williams] is required to pay out on a monthly basis.” ¶7 After an evidentiary hearing on Mother’s application for attorney fees and costs, the trial court found as follows: 59. The Court finds that based on the evidence presented in the form of [Williams’]
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testimony, bank statements, and monthly expenditures, that [Williams] has some ability to pay some portion of the attorney’s fees and costs requested by Mother.
¶11 Williams first argues the trial court erred in precluding him from obtaining Mother’s financial documentation and/or information as requested in the subpoena duces tecum:
60. That the portion of the attorney’s fees and costs should be offset by the judgment previously awarded [Williams] for attorney fees and costs in the amount of $1,250.00.
That the trial court allowing testimony on issues contrary to that which she relied on in ruling on the Motion to Quash without reconsidering the ruling on the Motion to Quash and allowing the documents requested was error and prejudiced [Williams’] counsel from being able to effectively cross examine [Mother] and her witnesses on the payment of monies for attorney fees, credits and fees/expenses actually paid.
61. Offsetting the judgment previously granted in favor of [Williams] against [Mother] entered and filed herein on January 11, 2008, and reducing the amount of fees based upon the limited ability of [Williams] to pay, the Court finds that [Mother] is entitled to an award of $19,750.00, for which the Court grants judgment against [Williams] and in favor of [Mother]. Williams appeals. STANDARD OF REVIEW ¶8 “Statutory construction presents a question of law which is subject to de novo review.” St. John Med. Ctr. v. Bilby, 2007 OK 37, ¶2, 160 P.3d 978, 979. Whether a party is entitled to an attorney fee award presents a question of law subject to de novo review. Finnell v. Jebco Seismic, 2003 OK 35, ¶7, 67 P.3d 339, 342. ¶9 Proceedings under the Protection from Domestic Abuse Act, 22 O.S.2001 & Supp. 2009 §§60-60.18, are reviewed for an abuse of discretion. Curry v. Streater, 2009 OK 5, ¶8, 213 P.3d 550, 554. “Under an abuse of discretion standard, the appellate court examines the evidence in the record and reverses only if the trial court’s decision is clearly against the evidence or is contrary to a governing principle of law.” Id. ¶10 However, because the trial court found Mother was entitled to fees and costs with the granting of the final protective order, the question we must answer is whether the amount of costs and fees awarded to Mother is reasonable based on Williams’ ability to pay. “When a question on appeal presents the issue of reasonableness of attorney’s fees awarded by the court, abuse of discretion by the trial judge is the standard of review.” State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, ¶22, 598 P.2d 659, 663. ANALYSIS I. Mother’s Financial Information Vol. 81 — No. 30 — 11/13/2010
During the hearing on the application for attorney fees and costs, the trial court stated that at the time of the hearing on the motion to quash, all of Mother’s fees were “paid in full” thereby making the production of the requested documents irrelevant. The trial court then stated during the hearing on fees and costs that “[i]f the fees are not paid in total, then I’m going to allow [Mother] to present what [she] need[s] to present to show the Court what’s not paid so far. We’ll continue along those lines.” ¶12 Williams objected to the trial court’s ruling arguing as follows: So now what we’re at is I don’t have any of these documents that I wanted, the billing statements, those sorts of things. I couldn’t look at any of that, determine if I needed to call her as a witness, because this Court stated, Mr. Johnson, it’s not relevant. It’s all been paid. Now what we have is me having requested documentation to defend in a motion for not only fees and costs that they’re now saying are not paid, and the Court ruled accordingly, now they say they’re unpaid, and I think that changes the terrain of the litigation and whether or not I would be entitled to the documentation in support of what they’re saying is unpaid. Mother’s counsel responded as follows: With all due respect, Your Honor, the documentation is before the Court in exhibits that we intend to offer, and secondarily, I don’t think he’s entitled to it even if they were unpaid wholly. I don’t think that’s a relevant inquiry for the Court.
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In her appellate brief, Mother again argues that nothing in 22 O.S. §60.2(C) gives any credence or relevance whatsoever to whether or not the prevailing party’s fees have been paid, how they have been paid or otherwise. The only prerequisite of relevance under the statute is the trial court’s determination of whether or not the defendant has the ability to pay. ¶13 Mother reasons that the trial court properly precluded Williams from obtaining the financial information to determine Mother’s ability to pay, “regardless of whether the order was premised on the Court’s understanding that all of Mother’s fees and costs were paid in full or not.” Put differently, Mother asserts that her testimony regarding the amount actually paid was immaterial and irrelevant to determining Williams’ ability to pay fees and costs pursuant to 22 O.S. Supp. 2009 §60.2(C). ¶14 Aside from the fact Williams cites no authority to suggest how the trial court’s ruling was erroneous, we agree with Mother that the plain language of the statute does not include any provision for considering whether the plaintiff or victim has the ability to pay her own fees3: Except as otherwise provided by this section, no filing fee, service of process fee, attorney fees or any other fee or costs shall be charged the plaintiff or victim at any time for filing a petition for a protective order whether a protective order is granted or not granted. The court may assess court costs, service of process fees, attorney fees, other fees and filing fees against the defendant at the hearing on the petition, if a protective order is granted against the defendant; provided, the court shall have authority to waive the costs and fees if the court finds that the party does not have the ability to pay the costs and fees. 22 O.S. Supp. 2009 §60.2(C)(1)(emphasis added). “Courts must ‘if possible, construe a statute to give every word some operative effect’ and vigorously ‘resist reading words or elements into a statute that do not appear on its face.’” Oklahoma City Zoological Trust v. State ex rel. Public Employees Relations Bd., 2007 OK 21, ¶6, 158 P.3d 461, 464 (footnotes omitted). “’It is for [this court] to ascertain [the meaning of these words]-neither to add nor to subtract, neither to delete nor to distort.’” Id. (footnote 2568
omitted). “It is presumed ‘the Legislature expressed its intent in the statute . . . and . . . intended what it expressed.’” Id. (footnote omitted). ¶15 Additionally, the purpose of the statute is to “encourage[] victims to pursue their legal remedies in court without the threat of attorney fees being awarded [against them].” Alford v. Garzone, 1998 OK CIV APP 105, ¶15, 964 P.2d 944, 948. The Supreme Court of Oklahoma has upheld the constitutionality of this statute awarding fees and costs only to the successful plaintiff and not to a successful defendant finding it to be “bottomed on a rational basis” and serving a “compelling public interest.” Thayer v. Phillips Petroleum Co., 1980 OK 95, ¶15, 613 P.2d 1041, 1045. Consequently, “the district court is not authorized to award attorney fees to a successful defendant.”4 Alford, 1998 OK CIV APP 105at ¶15, 964 P.2d at 948. With the circumstances as presented, Williams cannot recover fees and costs against Mother. As a result, any evidence offered relating to Mother’s ability to pay her own fees and costs or related to payment or nonpayment is immaterial to the trial court’s assessment of Williams’ ability to pay. We find no basis on which to conclude that the trial court erred in its decision to preclude him from obtaining financial information from Mother. II. Williams’ Ability to Pay ¶16 Williams asserts the trial court exceeded its authority pursuant to 22 O.S. Supp. 2009 §60.2(C) when it allowed Mother to present evidence as to expenses incurred from the child’s therapist. In his brief, Williams “suggests that the ‘costs’ associated with the testimony of an expert witness were not the type anticipated and/or indicated by statute.” There is no authority or citation offered in the brief for this argument. We need not on appeal “consider assignments of error unsupported by convincing argument or authority, unless it is apparent without further research that they are well taken.” Beets v. Metropolitan Life Ins. Co., 1999 OK 15, n. 7, 995 P.2d 1071; see also In re Death of Boyd, 1994 OK CIV APP 175, ¶6, 889 P.2d 1276, 1278-79 (“An argument in a brief which is unsupported by citation of authority is not sufficient to overcome the presumption in favor of the correctness of the trial court’s decision and will not be considered.”); Supreme Court Rule 1.11(k), 12 O.S. Supp. 2009, ch. 15, app. 1 (“Argument without supporting authority will not be considered.”) Because Williams
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offers no authority supporting his proposition that costs associated with the testimony of an expert witness are not “the type anticipated and/or indicated by statute,” we will not further address this argument.
affirmed the trial court’s award of support alimony finding the husband’s ability to pay resulted in part from an increase in equity in mortgaged property. Drake, 1940 OK 148 at ¶¶11-12, 100 P.2d at 887.
¶17 Williams next asserts the trial court’s ruling finding he had an ability to pay some of the fees and costs is not supported by the evidence and created a “manifest hardship.” Both parties agree there are no Oklahoma cases interpreting “ability to pay” in the context of assessing fees and costs in a protective order hearing, and each party relies on cases from other areas of Oklahoma law.
¶20 In addressing the question of fees and costs to be assessed when a protective order has been granted, the trial court has authority to waive them if it finds the defendant does not have the ability to pay. 22 O.S. Supp. 2009 §60.2(C)(1). To recover fees and costs, it is incumbent on the plaintiff or victim who has been granted a protective order to present competent evidence establishing the reasonable fees and costs to which the plaintiff or victim is entitled for prosecuting the petition for protective order. If the defendant wishes the court to waive some or all of those fees and costs, a defendant must then come forward with competent evidence establishing the inability to pay the requested fees and costs.
¶18 Williams relies on Hubbard v. State, 2002 OK CR 8, 45 P.3d 96, to support his argument that the trial court created a manifest hardship for him when it determined he had a “limited ability to pay” fees and costs in the amount of $19,750. Mother also relies on this case. In Hubbard, the Court of Criminal Appeals found: “The district court’s discretion in assessing incarceration costs is limited to determining whether assessment would create a ‘manifest hardship’ upon the defendant, or whether the defendant’s financial responsibilities to his or her dependents would make restitution impracticable.” Id. at ¶6, 45 P.3d at 99. The Court held that the trial court properly considered whether the assessment of costs would create a manifest hardship for him or his dependents finding that he “had the ability to pay based on his age, health, and work experience.” Id. at ¶7, 45 P.3d at 99. ¶19 Mother also relies on Strock v. Strock, 1993 OK CIV APP 173, 865 P.2d 1272, and Drake v. Drake, 1940 OK 148, 100 P.2d 887. In Strock, the Court of Civil Appeals found that for purposes of determining support alimony, the trial court considers factors “including need for support and ability to pay.” Strock, 1993 OK CIV APP 173at ¶4, 865 P.2d at 1274. In this case, the husband expected to receive “a special separation benefit payment from the Army in the approximate gross amount of $54,000.00” which the trial court found to be the husband’s separate property. Id. at ¶5, 865 P.2d at 1274. After considering husband’s and wife’s education levels, work experience, employment, and the husband’s future expectancy of monies, this Court affirmed the trial court’s determination that wife properly demonstrated she needed support and that husband had the ability to pay support alimony in excess of wife’s request. Id. In Drake, the Supreme Court of Oklahoma Vol. 81 — No. 30 — 11/13/2010
¶21 The record shows Mother presented evidence as to the fees and costs she incurred in prosecuting the petition for protective order. Williams presented evidence regarding his inability to pay the requested fees and costs. As set forth in its order, the trial court considered evidence presented in the “form of [Williams’] testimony, bank statements, and monthly expenditures” in assessing whether Williams had the ability to pay fees and costs and, if so, how much. Although Mother requested an award of $50,791.09, the trial court reduced this amount to $19,750 based on “the limited ability of [Williams] to pay” and an offset for a judgment previously awarded to Williams for fees and costs. ¶22 After review of the record and applicable law, we conclude the amount of costs and fees awarded to Mother by the trial court based on Williams’ ability to pay is well within the evidence presented. Although there was competent evidence to the contrary, there was also competent evidence to support the trial court’s judgment. The trial court assessed the credibility of the witnesses, weighed the evidence, and found that although Williams did not have the ability to pay the entire amount requested, he did have a “limited” ability to pay some of the fees and costs. “’We do not reweigh the trial court’s findings of evidentiary matters. . . . Even though the evidence may conflict, the appellate court is bound by the fact finder’s assessment of it, absent legal error.’” Fields v. Independant Sch. Dist. No. 1 of Tulsa County, 2002
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OK CIV APP 109, ¶15, 84 P.3d 779, 784 (quoting Hawzipta v. Independent Sch. Dist. No. 1-004 of Noble County, 2000 OK CIV APP 113, ¶10, 13 P.3d 98, 101). We will not disturb on appeal for abuse of discretion a decision based on conflicting evidence where the evidence reasonably tends to support the trial court’s decision. The trial court’s judgment in the amount of $19,750 based upon Williams’ limited ability to pay fees and costs is affirmed. III. Appellate Attorney Fees ¶23 Mother also requests an award of appealrelated attorney fees. “Whenever there is statutory authority . . . to award attorney fees in the trial of a matter, the prevailing party may be awarded additional fees for additional legal services rendered in the appellate court.” State ex rel. Dep’t. of Transp. v. Carter, 2005 OK 7, ¶6, 107 P.3d 593, 594. We grant Mother’s request for appeal-related attorney fees and remand pursuant to 12 O.S. Supp. 2009 §696.4(C) for the trial court to determine the appropriate amount. CONCLUSION ¶24 The trial court properly denied Williams’ request for Mother’s financial information and properly found that Williams has a limited ability to pay fees and costs in the amount of $19,750. We accordingly affirm these decisions of the trial court. We also grant Mother’s request for appeal-related attorney fees and remand for a determination of the amount by the trial court. ¶25 AFFIRMED AND REMANDED. FISCHER, P.J., and BARNES, J., concur. 1. According to the docket sheet, the continuances of the protective order hearing were due to a combination of (1) allowing discovery, (2) accommodating a request to file a motion to appoint the public defender to represent the minor child, (3) disposing of a motion to disqualify Williams’ attorney, (4) disposing of Williams’ application for attorney fees and costs, (5) disposing of an application for order authorizing inspection, release and disclosure of a DVD related to the minor child, (6) disposing of a motion for forensic sexual abuse evaluation of the parties, and (7) disposing of an application for disclosure of the complete file of the child’s therapist and the investigating detective. 2. This is Williams’ expert witness. 3. According to 22 O.S. Supp. 2009 §60.2(C)(2), the only time costs and fees may be assessed against a plaintiff is when the “court makes specific findings that a petition for a protective order has been filed frivolously and no victim exists.” This exception does not apply here. 4. See supra note 3.
2010 OK CIV APP 109 SHARON PHELPS, Plaintiff/Appellee, vs. AUSTON CLARK, individually, and d/b/a 2570
CLARKS AT YOUR SERVICE, L.L.C., Defendants/Appellants. Case No. 107,421. September 17, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE BARBARA G. SWINTON, JUDGE REVERSED Clell I. Cunningham, III, DUNN, SWAN & CUNNINGHAM, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee, Samuel L. Talley, TALLEY, CROWDER & TALLEY, An Association of Professional Corporations, Norman, Oklahoma, for Defendants/ Appellants. Kenneth L. Buettner, Presiding Judge: ¶1 Plaintiff/Appellee Sharon Phelps (Phelps) sued Defendants Auston Clark, individually and d/b/a Clarks at Your Service, L.L.C. (collectively “Clark”), for breach of contract, unjust enrichment, and fraud, with respect to a home re-model job. Summary Judgment was granted in favor of Phelps. Phelps filed a Motion for Attorney Fees and Costs relying on 15 O.S.2001 §276, which was granted. We hold that 15 O.S.2001 §276 is not applicable to Phelps’ underlying causes of action and, therefore, reverse the award of attorney fees. ¶2 In Phelps’ Motion for Summary Judgment, she relied on deemed admissions from certain Requests for Admissions which were served, and to which Clark had failed to timely respond. Clark filed a Response and claimed material facts were disputed. The trial court granted Phelps’ Motion for Summary Judgment and scheduled a hearing on damages. An Order and Stipulation of Damages was entered August 21, 2009, which constitutes a final judgment in this case, awarding Phelps $8,864.00. ¶3 Phelps filed a Motion for Attorney Fees and Costs based upon 15 O.S.2001 §276. In her Motion, Phelps states that she brought her civil action to recover a fair portion of the monies advanced by her to Defendants. She then states that “Oklahoma law provides that, where there is an obligation to repay money after a default, the prevailing party at trial is entitled to recover its attorney fees.” Title 15 O.S. 2001 §276 provides:
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In any civil action to collect upon an obligation to repay money after default, the party prevailing on such cause of action shall be awarded a reasonable attorney’s fee. This attorney’s fee shall be assessed by the court as costs against the losing party. ¶4 Title 15 pertains to contracts. Chapter 6, in which §276 is found, is entitled “Loan of Money.”1 In Ex parte Higgs, 1953 OK CR 160, 263 P.2d 752, Syllabus by the Court, paragraphs 1 and 2 state: 1. The fundamental rule of construction is to ascertain the intention of the lawmakers in order that the true meaning of the legislature may be determined. 2. The rules of statutory construction are intended as an aid to resolve doubts and not create them. The parties cite no cases, nor have we found any Oklahoma cases interpreting §276.2 ¶5 Section 276 first requires an “obligation to repay money” and secondly a default of that obligation. The title of the Chapter and the wording of the statute suggest that a loan of some kind be involved, or, at a minimum, that a liquidated sum is due and has not been repaid. In this case, the contract was for a garage conversion. With respect to compensation, the contract states that Owner [Phelps] will pay Contractor [Clark]: 1st Draw due upon contract for deck material $3,000.00
an award of attorney fees was proper. However, she did not bring that theory of recovery of attorney fees to the trial court’s attention, nor Clark’s, and is precluded from doing so for the first time on appeal. We decline to address it. Jernigan v. Jernigan, 2006 OK 22, 138 P.3d 539. ¶8 REVERSED. HETHERINGTON, J., concurs. CAROL M. HANSEN, J., dissenting: ¶9 A plain reading of §276 does not reflect a Legislative intent to limit its application to a commercial instrument guaranteeing payment of a promissory note. Here, Defendants are obligated to repay Plaintiff the money she had advanced to them to remodel her home. Section 276 applies to this situation. I would affirm the trial court’s award of attorney fees. 1. The Oklahoma Supreme Court utilized the title of a chapter (Loan of Money), in interpreting a statute in National Novelty Import Co. v. Muncy, 1923 OK 793, 219 P. 669, 93 Okla. 5. 2. The Fifth Circuit Court of Appeals awarded attorney fees under §276 in a suit to collect a promissory note. Atkinson v. Anadarko Bank and Trust Co., 808 F.2d 438 (5th Cir. 1987) cert. denied, 107 S.Ct. 3276, 483 U.S. 1032, 97 L.Ed.2d 780.
2010 OK CIV APP 92 DAVID M. VRANESEVICH, Plaintiff/ Appellant, vs. PEARL CRAFT, Defendant/ Appellee. Case No. 106,541. October 9, 2009 APPEAL FROM THE DISTRICT COURT OF WAGONER COUNTY, OKLAHOMA HONORABLE BRUCE SEWELL, TRIAL JUDGE
2nd Draw due upon completion of deck
$13,000.00
3rd Draw due upon framing of conversion
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS
$10,000.00
Final Draw for completion of contract
Lawrence D. Taylor, Tulsa, Oklahoma, for Plaintiff/Appellant,
$3,681.00
Jon E. Brightmire, Amanda L. Thrash, DOERNER, SAUNDERS, DANIEL & ANDERSON, L.L.P., Tulsa Oklahoma, for Defendant/Appellee.
¶6 While Phelps alleged Clark received more money that he was entitled to under the contract, he disputed the claim, and did not have an obligation to repay until liability and the amount of the excess was determined by the court. As a result, §276 does not apply to the facts of this case. ¶7 Phelps also briefed a different ground defending her award of attorney fees and costs, that is, that Clark held her money in trust for her benefit until the work was finished, and that pursuant to the law of constructive trust, Vol. 81 — No. 30 — 11/13/2010
Opinion by John F. Fischer, Judge: ¶1 David M. Vranesevich appeals from the judgment of the district court granting Pearl Craft’s motion for summary judgment. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S. Supp. 2008, ch. 15, app. 1, and the matter stands submitted without appellate briefing. Based on our review of the record
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on appeal and applicable law, we reverse and remand for further proceedings. BACKGROUND FACTS ¶2 The parties own adjoining tracts of property in Wagoner County. Both properties are subject to restrictive covenants. The covenants were created in 1994 by Mercedes L. Bruss, Trustee of the Mercedes L. Bruss Trust UID, the owner of the properties, “to provide for the orderly development of [the properties] and to provide restrictive covenants for the mutual benefit of herself and her successors entitled to tracts of land hereafter created.” Craft acquired her property in 1999. In August 2002, Craft moved a manufactured home onto her property. Alleging this and other conduct constituted a breach of three of the restrictive covenants, Vranesevich filed suit to enjoin the alleged violations. Craft filed a motion for summary judgment arguing that her manufactured home was moved onto the property more than five years before the filing of his suit and, therefore, Vranesevich’s suit was barred by the applicable statute of limitations.1 Craft’s motion was supported by evidentiary material showing the manufactured home was originally located on her property in August 2002. The Journal Entry of Judgment recites that the home was located on Craft’s property more than five years before the filing of Vranesevich’s suit and granted Craft’s motion for summary judgment. STANDARD OF REVIEW ¶3 We review a trial court’s grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, we examine the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears “an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.” Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. The summary process requires that we determine whether the record reveals only undisputed material facts supporting only a single inference that favors the movant’s motion for summary judgment. Id. Further, when considering a motion for summary judgment, the evidence and the inferences to be drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Val2572
ley Elec. Co-op., Inc., 1990 OK 43, ¶14, 792 P.2d 50. “Only if the court should conclude that there is no material fact in dispute and the law favors the movant’s claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.” Copeland, 2000 OK 36 at ¶ 8, 4 P.3d at 699. DISCUSSION ¶4 The proper construction of Vranesevich’s petition is dispositive of this appeal. He seeks to enjoin Craft’s alleged violation of the restrictive covenants.2 I. The Restrictive Covenant Claim ¶5 Craft relies on Russell v. Williams, 1998 OK CIV APP 135, 964 P.2d 231, for the proposition that the restrictive covenants Vranesevich seeks to enforce constitute a contract subject to the five-year statute of limitations in 12 O.S.2001 §95(1). Russell decided a dispute between adjoining property owners arising from the encroachment of a structure onto the property of other land owners and its location beyond the set-back restrictions in restrictive covenants applicable to the property. The plaintiff sought removal of the structure from his property and attorney fees. It was undisputed that the encroachment had occurred more than five years prior to the filing of the plaintiff’s suit.3 The Russell Court applied the five-year statute of limitations applicable to written contracts and affirmed summary judgment on the breach of restrictive covenant claim because: “A covenant is in the nature of a contract and when a covenant is breached it confers the same right of action as for any other contract.” Russell, 1998 OK CIV APP 35at ¶ 7, 964 P.2d at 234.4 ¶6 Because we view the statute of limitations analysis differently than the Russell Court, we find summary judgment in this case is not warranted. The Russell Court correctly states that a restrictive covenant is a contract enforceable as any other contract. However, that particular type of contract creates an interest in real property. “It has been said that a restriction arising from a restrictive covenant is not an estate in land, as is a legal easement, but is purely a creature of equity arising out of contract.” Van Meter v. Manion, 1934 OK 615, ¶ 10, 38 P.2d 557, 559. Nonetheless, as explained in O’Neal v. Vose, 1944 OK 26, 145 P.2d 411: [W]e are not unmindful of the legal right of owners of adjoining properties to bind themselves by enforceable contract,
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restraining the use of their property for an unlimited period of time, wherein each separate owner grants to the other owners a right in his property in the nature of an easement and which shall run with the land and be binding upon the several property owners as well as all future owners, who succeed to title with actual or constructive notice of such contract or agreement and its terms. Id. at ¶ 14, 145 P.2d at 414. A restrictive covenant, therefore, creates a property interest although that interest is created by contract. ¶7 Vranesevich’s central allegation in his petition asserts that Craft violated the restrictive covenants by placing the manufactured home on her property. Although Vranesevich could have sued for breach of the covenants when the home was placed on the property, the five-year limitation period in 12 O.S.2001 §95(1) only applies to any claim for damages resulting from a breach of the restrictive covenants. See Indian Terr. Illuminating Oil Co. v. Rosamond, 1941 OK 410, 120 P.2d 349 (holding that an implied covenant in an oil and gas lease to protect the lessor from drainage was a continuing covenant and that an action for breach could be maintained beyond the limitations period although damages would be limited to the five years preceding the filing of the suit). See also Bowman v. Oklahoma Natural Gas Co., 1963 OK 197, 385 P.2d 440. ¶8 O’Neal requires the same analysis. The property owners in O’Neal successfully enforced restrictive covenants limiting the affected property to residential use. Although the non-conforming use had begun more than ten years prior to the filing of the plaintiffs’ suit, the defendants’ statute of limitations argument was specifically rejected: [C]ovenants restricting the use of property are generally held to be covenants running with the land, . . . such covenants are binding upon the successors in interest to the parties, although there was no privity of interest between such successors and the original parties. The portion of the restricted agreement would be as binding upon subsequent owners as on the original parties to the agreement. O’Neal, 1944 OK 26 at ¶ 29, 145 P.2d at 417.
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¶9 From these authorities, it is clear that restrictive covenants, although created by private contract, create an interest in the property affected. That property interest is protectable as are other property interests. Consequently, an action to enforce restrictive covenants is an equitable action, which may be subject to equitable defenses,5 but it is not subject to a statute of limitations defense. Further, Vranesevich has not sued for monetary damages. The breach of covenant on which he relies is continuing. If it exists, it was created when the home was placed on Craft’s property and continues so long as the home remains. “[T]he right to maintain an action for [a continuing] breach continues so long as the breach continues, and plaintiff is damaged thereby.” Indian Terr. Illuminating Oil Co., 1941 OK 410 at ¶ 5, 120 P.2d at 352. Summary judgment regarding Vranesevich’s breach of restrictive covenant claim based on application of a five-year statute of limitations was not proper. II. The Nuisance Claim ¶10 Further, Vranesevich alleges that Craft is maintaining a nuisance. Although the restrictive covenants specifically prohibit such conduct, the maintenance of a nuisance may exist regardless of whether Craft has violated the restrictive covenants. Title 50 O.S.2001 §1 defines a nuisance: A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either: First. Annoys, injures or endangers the comfort, repose, health, or safety of others; .... For example, the operation of an otherwise lawful sanitation plant but with insufficient capacity or inadequate procedures may constitute a nuisance. See Theatre Estates, Inc. v. Village, 1969 OK 183, 462 P.2d 651. Likewise, operation of a salvage yard business, though “of itself lawful,” may constitute a nuisance. Winningham v. Rice, 1955 OK 108, ¶ 7, 282 P.2d 742, 744. Craft has a duty to comply with the restrictive covenants and her failure to do so may constitute a nuisance. Vranesevich is entitled to sue for abatement of a private nuisance. 50 O.S.2001 §§13-14. ¶11 We find Moneypenney v. Dawson, 2006 OK 53, 141 P.3d 549, instructive. That case held it was error to dismiss a land owner’s petition
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based on the statute of limitations because it was unclear whether the water damage resulting from the defendant’s alleged alteration of the natural water drainage was permanent or temporary. “As a general proposition, ‘[w]hen a cause of an injury is abatable either by an expenditure of labor or money, it will not be held permanent.’ Further, both temporary and permanent damage may be caused or arise from a temporary, i.e., abatable nuisance or trespass.” Id. at ¶ 9, 141 P.3d at 553 (citation omitted). See also N.C. Corff Partnership, Ltd. v. OXY USA, Inc., 1996 OK CIV APP 92, ¶ 15, 929 P.2d 288, 293 (correctly stating, according to the Supreme Court in Moneypenny, the general rule that the two-year statute of limitations applicable to actions for temporary damages resulting from a nuisance does not bar the action but only recovery for damages occurring more than two years prior to filing of the suit). ¶12 As noted by Vranesevich, Craft’s motion for summary judgment does not address the nuisance issue. The nature of the alleged nuisance is not apparent from Vranesevich’s petition or his objection to Craft’s motion.6 Nonetheless, in response to Craft’s motion for summary judgment, Vranesevich followed the procedure set out in Okla. Dist. Ct. R. 13(b), 12 O.S. Supp. 2008, ch. 2, app., by requesting additional time to conduct discovery in order to prepare a response to Craft’s summary judgment motion. The district court found that the requested discovery was not relevant. Nonetheless, the summary judgment record produced by Craft does not preclude a claim for abatement of a nuisance even if that nuisance was created more than five years prior to the filing of Vranesevich’s initial suit. Consequently, summary disposition of this issue by the district court is not appropriate. CONCLUSION ¶13 Although a restrictive covenant affecting the use of real property is created by contract, the property interest created thereby “runs with the land.” Consequently, Vranesevich’s suit to enjoin an alleged breach of restrictive covenants is not barred by the five-year statute of limitations applicable to written contracts. Likewise, he may maintain an action to abate a private nuisance, subject to any defenses Craft may assert. The judgment of the district court is reversed, and this case is remanded for further proceedings. 2574
¶14 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. GABBARD, P.J., and RAPP, J., concur. 1. The current suit is the second filed by Vranesevich regarding this subject matter. The first was filed September 14, 2007, but voluntarily dismissed. The second suit was refiled within one year of the dismissal as permitted by 12 O.S.2001 §100 and, therefore, timely if the statute of limitations had not run prior to the filing of the first suit. Craft contends that any breach of the restrictive covenants occurred more than five years prior to the filing of the first suit. Craft’s motion included an alternative motion to dismiss for failure to state a claim. The district court did not address that motion in its ruling. 2. Vranesevich also seeks costs and attorney fees pursuant to 60 O.S.2001 §856: “Any person owning property in a real estate development shall be entitled to bring action against any other person owning property in such development to enforce any of the restrictions or covenants of the real estate development which are specified by the covenants or restrictions. In any action to enforce any restriction or covenant pursuant to the provisions of this section, the prevailing party shall be entitled to recover reasonable attorneys fees to be fixed by the court, which shall be taxed as costs in the action.” 3. Although the Russell court applied a five-year statute of limitations to the breach of covenant claim, the fifteen-year prescription period was held to be the relevant period regarding the encroachment claim. Because the plaintiff was not seeking damages for the encroachment, which the court found would have been barred by the two-year statute of limitations applicable to trespass claims, and because the evidence was not clear with respect to when the encroachment began, summary judgment in this respect was reversed. The Russell court also held that the evidence failed to establish as a matter of law that the plaintiff’s encroachment claim was barred by laches. Citing Fairlawn Cemetery Ass’n v. First Presbyterian Church, U.S.A. of Oklahoma City, 1972 OK 66, 496 P.2d 1185, the court concluded that the encroachment was a continuing trespass that the trial court could order removed. Fairlawn found that a dirt fill encroaching on the plaintiff’s property was a trespass rather than a nuisance. Because suit was filed more than two years after the encroachment occurred, plaintiff’s claim for damages to a fence caused by the dirt fill was barred by the two-year statute of limitations applicable to trespass claims. Nonetheless, the plaintiff prevailed on its nuisance claim and was granted an injunction requiring the defendant to remove the dirt fill from the plaintiff’s property. 4. The Russell opinion cites Ball v. Coyle, 1925 OK 101, 233 P. 750, for this proposition. The Court in Ball held that a covenant in an assignment of an oil and gas lease stating that the sellers had title to the lease with the right to sell it, and that the lease was free of liens and encumbrances, was not a warranty of title and could not defeat a mortgage recorded prior to the assignment. Id. at ¶ 4, 233 P. at 751. 5. In addition to the statute of limitations defense, the defendants’ laches defense was rejected in O’Neal as well. The property owners only sought to prevent the continued use of the property in violation of the restrictive covenants rather than to enjoin the maintenance of improvements erected in violation of the covenants or to recover monetary damages for the violation. The defendants did not show that they were surprised or would suffer injury because of the plaintiffs’ delay in bringing their suit. Consequently, the defendants failed to prove their laches defense, and the trial court’s injunction was affirmed. 6. Vranesevich asserts in his petition in error that this claim relates to Craft’s failure to clear trash and storm debris from her property. A party opposing summary judgment may not rely on appeal “on any fact or material that is not referred to or included” in the party’s response to a motion for summary judgment. Okla. Dist. Ct. R. 13(b), 12 O.S. Supp. 2008, ch. 2, app.
2010 OK CIV APP 99 GEORGE ALLEN BEERS, Plaintiff/ Appellant, vs. DOROTHY HILLORY, Defendant, and NORTHLAND
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INSURANCE COMPANY, a Minnesota corporation, Defendant/Appellee. Case No. 107,411. September 9, 2010 APPEAL FROM THE DISTRICT COURT OF OKMULGEE COUNTY, OKLAHOMA HONORABLE DUANE WOODLIFF, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS Michael Green, Tulsa, Oklahoma, for Plaintiff/ Appellant, D. Lynn Babb, Oklahoma City, Oklahoma, for Defendants/Appellees. John F. Fischer, Presiding Judge: ¶1 George Allen Beers appeals the district court’s order granting his automobile insurance carrier Northland Insurance Company’s motion for summary judgment. Beers sued NIC, claiming that NIC breached the insurance contract and its duty of good faith and fair dealing by unreasonably delaying payment of his claim for uninsured motorist (UM) benefits.1 Although the district court correctly disposed of some aspects of Beers’s claim, we find that disputed issues of material fact exist with respect to other aspects of that claim, precluding summary judgment. BACKGROUND I. Pre-Litigation ¶2 On March 6, 2006, Beers was involved in an automobile accident with defendant Dorothy Hillory. Beers sustained injuries in the accident and subsequently underwent back surgery. On April 13, 2006, attorney Michael Green sent a letter to NIC advising that he had been retained by Beers to pursue recovery for his injuries as a result of the accident. Green requested certain information regarding UM coverage and NIC’s investigation of the accident. The letter also advised: “This office has been assigned a portion of any recovery for professional services rendered.” ¶3 On April 17, 2006, NIC issued a $5,000 check, the policy limit for Beers’s medical benefit coverage. The check was made payable to Beers and Green. Neither objected. On or about May 11, 2006, NIC assigned the Beers claim to its adjuster Jacqueline Adamson, who worked in NIC’s office in St. Paul, Minnesota. In Vol. 81 — No. 30 — 11/13/2010
reviewing the claim file to date, Adamson noted that there did not appear to be a complete set of Beers’s medical bills and medical records. She also noted that Beers had suffered from a back condition that pre-existed the accident. On May 31, 2006, Adamson asked Green to provide a signed medical authorization from Beers so that she could obtain records from Beers’s primary care physician and a more complete set of records of his post-accident medical treatment. ¶4 By letter dated October 31, 2006, Green advised Adamson that Hillory’s insurance carrier had offered Beers the $50,000 liability limit of Hillory’s policy. In this letter, Green referred Adamson to 36 O.S. Supp. 2004 § 3636, which provides that a UM insurer, on receipt of its insured’s notice of settlement with the tortfeasor, has 60 days to either substitute its payment for that of the liability insurer or waive its subrogation rights.2 When Adamson received this letter from Green on November 9, she had documented medical expenses in her file of approximately $10,000. ¶5 Adamson contacted Green’s office by telephone to request a copy of the declarations page of Hillory’s insurance policy to verify her liability limit. In that conversation, she also repeated her request for the signed medical authorization and medical provider information. Adamson testified at her deposition that, during the phone call on November 3, 2006, Green’s legal assistant had assured her that she would be sending the tender letter, the results of the asset check on Hillory, and “the information I had been requesting since May of 2006 with medical authorizations and medical providers listed so that I could obtain all of the information to fully evaluate Mr. Beers’s injury and condition prior to the March 1, 2006 accident and verify what injuries he has sustained as a result of [that] accident.”3 ¶6 On November 7, 2006, Adamson received a copy of an asset check on Hillory sent by fax from Green’s legal assistant. On December 15, Adamson received the liability limit verification by fax, and on December 19, Green’s legal assistant faxed Adamson an updated summary of medical expenses incurred by Beers. On the following day, December 20, 2006, Adamson wrote to Green: “Please be advised that we will not be substituting payment and we waive subrogation rights against Mrs. Hillory. Kindly provide me with the previously requested
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information so we can evaluate your client’s claim.” ¶7 In his October 2006 letter notifying Adamson of the offer of the tortfeasor’s liability limit, Green stated that he previously had supplied Adamson with a signed medical authorization. The record indicates that Green had delegated this task, along with several others, to his legal assistant. Beers would later state in an affidavit, however, that “NIC did not send to me a medical authorization to sign.” ¶8 Green’s legal assistant wrote a letter to Adamson on January 31, 2007, wherein she stated: I have previously forwarded to you medical bills and records for the treatment received by George for the injuries in [sic] sustained in the accident . . . . His medical bills are in excess of $100,000.00, the total coverage available. . . . Please advise as to the status of your completion of the evaluation of George’s UM claim. In a letter dated March 8, 2007, attorney Green advised Adamson that Beers had been released from treatment by his surgeon. Green requested that Adamson contact his legal assistant regarding completion of NIC’s investigation of Beers’s UM claim. In his next letter to Adamson on April 16, Green requested that she contact the legal assistant within the next week or “we will otherwise be forced to file a Petition for bad faith against [NIC] due to your lack of communication.” ¶9 Although Adamson still had not received all of the medical information she requested to fully evaluate the UM claim, and/or a signed authorization to obtain Beers’s medical records, she made what she described as a “business decision” to give Beers “the benefit of the doubt” that all of his $100,000 medical expense claim resulted from the automobile accident. Adamson determined, on March 9, 2007, that it would be “a prudent course of action” to extend the UM policy limits to Beers. Before communicating the offer to Green, Adamson contacted NIC’s counsel for advice regarding handling of medical liens and seeking a release from Beers. While awaiting response from NIC’s counsel, Adamson continued her work on other aspects of Beers’s accident claim including speaking with the liability carrier’s adjuster regarding the incomplete documentation of Beers’s commercial vehicle “downtime” loss. 2576
¶10 In a letter dated May 18, 2007, Adamson sent a letter to attorney Green, offering to settle, for the $50,000 policy limit, “any and all UIM claims, including all liens and subrogation interests.” Included with the letter was a document entitled “Release and Defense, Indemnity and Hold Harmless Agreement” (Release) to be signed by both Beers and Green. Regarding the Release, Adamson wrote to Green: If your client is agreeable to this settlement, a draft release is enclosed. Please have the release properly executed (dated, signed and notarized) and return the original release to me along with your firm’s tax identification information. Upon receipt of the original release, I will issue the settlement draft. ¶11 The Release generated further correspondence between Adamson and Green. On May 21, 2007, Green responded advising Adamson: “I will not agree to sign the release and indemnity agreement. Please forward a Release of All Claims to my office for George’s [Beers’s] signature only.” Adamson’s reply, dated June 12, 2007, acknowledged Green’s refusal to sign the Release. Adamson instead requested “documentation establishing that all of the medical providers’ liens have been satisfied and released.” ¶12 In a letter dated June 15, 2007, attorney Green advised Adamson: “The medical providers have not been paid. Please list as payees George Beers, Michael R. Green ( my tax ID# is . . .) and all lienholders on the check for your policy limits and forward to our office with the release of all claims immediately.” On June 20, Green sent a letter “Via Fax” to Adamson, again requesting a release that did not require his signature. Green concluded this letter by stating: “If I do not receive the new Release by June 27, 2007, then we will pursue all available legal remedies.” Adamson’s response to Green, sent “Via Fax”on July 2, included the following: We previously requested information about lienholders. I refer you to our prior requests to provide: •A list of medical providers (name and address) who provided treatment to claimant for the accident. •A copy of all bills for claimant’s medical care and expenses.
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•An accounting of all payments made to or on behalf of claimant for medical, wage or any other expenses incurred relating to the accident, including the amount paid, the name and address of the party making payment, the name and address of the party to whom payment was made. This information has still not been provided. Please either provide the above information; or a list of each medical provider which provided treatment to Mr. Beers for which bills are unpaid and/or liens exist.4 ¶13 On the same day that he received Adamson’s faxed request, Green replied to Adamson, repeating that “the lienholders have not been paid.” Green again requested a check made payable to Beers and himself, as counsel, but this time he specified five medical providers to be added as payees on the check. ¶14 On July 11, 2007, Adamson sent a revised release and hold harmless document to Green that did not require his signature but only that of Beers. Green did not return this release. On August 3, Adamson sent Green a duplicate copy of the revised release. Green did not return this document, and five days later, on August 8, 2007, he filed suit on behalf of Beers seeking recovery from both Hillory and NIC.5 II. The District Court Proceedings ¶15 In his action against NIC, Beers alleged that NIC breached the insurance contract and breached the duty of good faith and fair dealing by unreasonably delaying the evaluation and payment of his UM claim. NIC asserted that it had satisfied its contractual obligations to Beers and that it had acted fairly and dealt with him in good faith. ¶16 NIC filed a motion seeking leave to file a third-party interpleader petition, to which Beers responded that he had no objection. NIC’s interpleader petition included thirdparty defendant medical care providers McAlester Regional Health Center, the Orthopedic Center, Orthopaedic Pain Management, HealthSouth, Hillcrest Medical Center, Saffa Compounding Pharmacy, Walgreens, The Rogers Clinics and Southeastern Radiology, P.C. NIC paid its $50,000 UM policy limit with the filing of its petition. In his answer to the interpleader petition, Beers admitted that the third-party Vol. 81 — No. 30 — 11/13/2010
defendants had provided him treatment and services for the injuries he sustained in the accident. He joined in NIC’s request that the district court identify all potential claimants to the UM benefits and determine the validity of their claims. Five of the nine medical providers claimed liens against the interpleaded funds. Following a pre-trial hearing, the district court dismissed “certain claims of third-party defendants.”6 On July 10, 2008, Beers and the remaining lien claimants settled the issues among them. The district court approved the settlement and subsequently distributed these amounts: $31,077 from the interpleader fund to Beers and counsel Green, $18,623 to the Orthopaedic Center and Orthopedic Pain Management and $300 to the court clerk as poundage. ¶17 NIC then filed a motion for summary judgment as to Beers’s breach of contract and bad faith claims, to which Beers objected. The parties attached voluminous evidentiary materials to their supporting briefs. The district court set NIC’s motion for oral argument, during which the issues for consideration were narrowed as a result of attorney Green’s admission, during questioning by the district court, that NIC’s actions prior to March 9, 2007, were reasonable and did not constitute the basis for his allegations of bad faith.7 ¶18 On July 20, 2009, the district court, finding no issues of material fact in controversy, entered its order granting judgment in favor of NIC. The 10-page order details the district court’s rationale for these conclusions: (1) NIC complied with and satisfied its contractual obligation to investigate, evaluate, and pay Beers’s UM claim; (2) NIC’s actions were reasonable under the circumstances; (3) NIC dealt fairly and in good faith with Beers; and (4) no unjustified delay in payment was attributable to NIC. Beers appeals. STANDARD OF REVIEW ¶19 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 must determine as a matter of law if the evidentiary material in the record, viewed in the light most favorable to the non-moving party, supports the judgment. Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50, 55. ¶20 In a case involving an insurer’s alleged breach of the implied duty of good faith and fair dealing, summary judgment for the insurer
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has been held proper where a legitimate dispute existed between the parties as to the value of the insured’s claim. See Garnett v. Gov’t Employees Ins. Co., 2008 OK 43, ¶ 23, 186 P.3d 935, 944; Skinner v. John Deere Ins. Co., 2000 OK 18, ¶ 17, 998 P.2d 1219, 1223. Further,”[b]efore the issue of an insurer’s alleged bad faith may be submitted to the jury, the trial court must first determine as a matter of law, under the facts most favorably construed against the insurer, whether the insurer’s conduct may be reasonably perceived as tortious.” Garnett, 2008 OK 43 at ¶ 23, 186 P.3d at 944.8 ¶21 Questions of law determined by the district court on summary judgment are reviewed by this Court de novo. Graham v. Travelers Ins. Co., 2002 OK 95, ¶ 8, 61 P.3d 225, 228; Barnes v. Oklahoma Farm Bureau Mut. Ins. Co., 2000 OK 55, ¶ 4, 11 P.3d 162, 166. ANALYSIS I. The Elements of Bad Faith ¶22 Pursuant to Oklahoma law, tort liability for breach of the implied covenant of good faith and fair dealing arises only “where there is a clear showing that the insurer unreasonably, and in bad faith, withholds payment of the claim of its insured.” Christian v. American Home Assurance Co., 1977 OK 141, ¶ 26, 577 P.2d 899, 905.9 In Badillo v. Mid Century Ins. Co., 2005 OK 48, ¶ 25, 121 P.3d 1080, 1093, the Court set forth the “essential elements” of a bad faith claim a plaintiff must show to make out a prima facie case, a case sufficient to warrant submission of the issue to the jury. In Ball v. Wilshire Ins. Co., 2009 OK 38, 221 P.3d 717, a case in which the plaintiff alleged bad faith delay in payment of her UM claim, the Court stated: The elements of a bad faith claim against an insurer for delay in payment of firstparty coverage are: (1) claimant was entitled to coverage under the insurance policy at issue; (2) the insurer had no reasonable basis for delaying payment; (3) the insurer did not deal fairly and in good faith with the claimant; and (4) the insurer’s violation of its duty of good faith and fair dealing was the direct cause of the claimant’s injury. The absence of any one of these elements defeats a bad faith claim. Id. at ¶ 21, 221 P.3d at 724 (footnotes omitted). Further, we note that to establish the tort of bad faith “the minimum level of culpability neces2578
sary for liability against an insurer to attach is more than simple negligence, but less than the reckless conduct necessary to sanction a punitive damage award against [the insurer].” Badillo, 2005 OK 48 at ¶ 28, 121 P.3d at 1094. See also Bailey v. Farmers Ins. Co., Inc., 2006 OK CIV APP 85, ¶ 18, 137 P.3d 1260, 1264 (“Insurers are free to make legitimate business decisions (and mistakes) regarding payment, as long as they act reasonably and deal fairly and in good faith with their insureds.”). II. Unreasonable Delay In Payment ¶23 Beers claims that NIC unreasonably delayed payment of his valid UM claim. Beers asserts basically two separate instances of bad faith conduct by NIC. The first is the delay between the date of NIC’s internal decision to pay the full UM coverage amount and the date NIC notified Beers’ attorney of that decision. The second is NIC’s request, after it had decided Beers was entitled to the UM policy limit, for an executed release that included defend, indemnify and hold harmless provisions. A. The Period Of March 9 To May 18 ¶24 At the hearing on NIC’s motion for summary judgment, Beers conceded that NIC’s actions prior to March 9, 2007, did not constitute bad faith.10 Accordingly, for purposes of determining whether NIC acted in bad faith towards Beers, we will consider the actions taken by NIC after its adjuster Adamson determined, on March 9, 2007, to offer Beers the full UM policy limit. The “critical question” is whether NIC had a good faith belief during this time period, Ball, 2009 OK 38 at ¶ 22, 221 P.3d at 725, “in some justifiable reason for the actions it took or omitted to take that are claimed violative of the duty of good faith and fair dealing.” Badillo, 2005 OK 48 at ¶ 28, 121 P.3d at 1093-94. See also Buzzard v. McDanel, 1991 OK 127, ¶¶ 13-14, 824 P.2d 1105, 1109. ¶25 The evidentiary materials of record establish that the delay between NIC’s decision to extend the UM policy limit to Beers and notifying his attorney Green of that decision resulted from adjuster Adamson’s decision to seek advice from NIC’s counsel. Adamson testified that, because of her “history of dealing” with Green’s office, and the absence of a signed medical authorization from Beers, she was concerned about there being unpaid medical providers after NIC paid the $50,000 UM to Beers and Green. Therefore, she sought advice of legal counsel in Oklahoma before issuing the
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settlement check, in order to protect NIC from potential exposure to double payments. ¶26 The extensive correspondence between Adamson and attorney Green demonstrates factual and legal reasons for NIC’s conduct, that Adamson’s concerns were legitimate, and that NIC did not act in bad faith in seeking legal advice before offering the UM policy limit. Beers did not produce any contradictory evidence or any evidence suggesting NIC intentionally delayed payment during this period for an improper purpose. The record shows that NIC’s decision to consult with Oklahoma counsel before offering Beers the UM policy limit was reasonable. Where an insurer has demonstrated a reasonable basis for its actions, bad faith cannot exist as a matter of law. See Manis v. Hartford Fire Ins. Co., 1984 OK 25, ¶¶ 7-8, 681 P.2d 760, 761-62; Buzzard, 1991 OK 127 at ¶ 14, 824 P.2d at 1109. Therefore, the district court’s summary adjudication of Beers’s bad faith claim based on the alleged unreasonable delay in payment between March 9 and May 18, 2007, was correct. That portion of the district court’s judgment is affirmed. B. The Request For An Executed Release ¶27 Beers claims that issues of fact remain regarding whether NIC breached the insurance contract and acted in bad faith when, in exchange for the UM benefits it had determined were due, NIC demanded that both he and attorney Green execute the Release. Beers argued before the district court that NIC’s draft release covering “all claims, demands, damages, causes of action or suits of any kind . . . under the UM coverage” foreclosed his right to sue NIC for bad faith. The district court found that this interpretation of the release proffered by Beers was not reasonable, and not intended by NIC. ¶28 There is no Oklahoma case law establishing a general prohibition against an insurer requesting its insured to execute a release on payment of the maximum amount insured by the policy. Further, if attorney Green refused to have Beers sign the Release because he believed it extinguished a viable bad faith claim, the record shows that Green never (1) communicated this concern to NIC, (2) gave NIC the opportunity to confirm that Beers was not required to release any potential bad faith claim, or (3) drafted and submitted a version of the release that he would have Beers sign. It was not unreasonable for NIC to condition Vol. 81 — No. 30 — 11/13/2010
payment of UM proceeds on a release of any future claims against that contract. The district court noted that releases in UM cases are “a common business practice.”11 The district court did not err in finding that NIC did not engage in bad faith by requesting an executed release of contract claims, and that portion of the district court’s order is affirmed. C. The Release’s Defend, Indemnify And Hold Harmless Provisions ¶29 Beers also argued before the district court that NIC acted in bad faith by conditioning payment of the UM policy limit on execution of the Release because the Release was overly broad. Beers pointed out that the Unfair Claims Settlement Practices Act, 36 O.S.2001 §§ 1250.1 through 1250.17 (UCSPA), prohibits an insurer from requesting an insured “to sign a release that extends beyond the subject matter that gave rise to the claim payment.” Section 1250.5(8). The district court found “that is clearly not the case here.” ¶30 The UCSPA proscribes certain conduct by an insurance company when resolving a claim with its insured, 36 O.S.2001 § 1250.5,12 and provides the Insurance Commissioner with administrative remedies to regulate settlement practices by insurance companies. 36 O.S.2001 § 1250.13. It is well settled, however, that the UCSPA does not provide the insured with a private right of action against the insurer. McWhirter v. Fire Ins. Exch., Inc., 1994 OK 93, ¶ 5, 78 P.2d 1056, 1057; Walker v. Chouteau Lime Co., 1993 OK 35, ¶ 7, 849 P.2d 1085, 1087. Nonetheless: The bad-faith action may also be based upon an insurer’s failure to perform an act that is derivative or secondary in nature; that is, an insurer’s duty that owes its existence to a preexisting implied contractual, or statutory, or status-based duty arising from the insurer-insured relationship. For example, a duty to timely and properly investigate an insurance claim is intrinsic to an insurer’s contractual duty to timely pay a valid claim. Similarly, bad-faith actions have been based upon an insurer’s failure to follow judicial construction of insurance contracts or available applicable law, as well as upon duties that are necessary for an insurer’s timely determination of a claim. Brown v. Patel, 2007 OK 16, ¶ 11, 157 P.3d 117, 122 (footnotes omitted). Therefore, the UCSPA
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can provide the district court with guidance in determining whether particular conduct on the part of an insurer is unreasonable and sufficient to constitute a basis for a bad faith claim. ¶31 However, when relying on the USPCA to establish a breach of the insurer’s duty, two caveats are critical. First, breach of a duty imposed by section 1250.5 is not a violation of the Act. A violation occurs only if the insurer’s failure to conform to some requirement of the statute is found to be flagrant or to constitute a business practice.13 Second, a violation of the Act does not necessarily establish bad faith. An insurer may carelessly fail to perform some duty required by the statute with such frequency to warrant administrative sanction, but that does not establish more than negligent conduct in any individual case. ¶32 The specific language of section 1250.5(8), prohibiting an insurer from demanding that the insured “sign a release that extends beyond the subject matter of the claim payment,” indicates that the Legislature recognized, as did the district court, that some releases used in insurance industry practice are appropriate. Although it was not bad faith for NIC to ask Beers to sign a release, the reasonableness of NIC’s action in demanding that Beers and attorney Green execute a release with defend, indemnify and hold harmless provisions, in addition to a release of contract claims, must be “judged in light of the applicable law.” Timmons v. Royal Globe Ins. Co., 1982 OK 97, ¶ 20, 653 P.2d 907, 914. For purposes of this bad faith action, “the question remains whether such conduct was legitimate and reasonable.” Brown v. Patel, 2007 OK 16 at ¶ 38, 157 P.3d at 129. Based on our de novo review, this Court finds that reasonable persons could conclude that NIC requested more than it was entitled to request from its insured Beers. ¶33 In evaluating this aspect of Beers’s bad faith claim, NIC had the contractual right to request necessary claim documentation from Beers, and, pursuant to the provisions of 36 O.S. Supp. 2004 § 3636(F), Beers was obligated to provide a signed medical authorization and medical bills to aid NIC in its investigation. However, NIC also argued that the defend, indemnify and hold harmless provisions were necessary to protect it against liability to lienholders after it paid the $50,000 UM policy limit to Beers.14 Examination of the applicable Oklahoma lien statutes, however, fails to support this concern. 2580
¶34 Only valid liens filed by physicians pursuant to 42 O.S.2001 § 46 may attach to an insured’s UM coverage.15 Section 46 authorizes liens by physicians in two circumstances: (1) “if the injured person asserts or maintains a claim against [another] for damages,” or (2) “if the injured person asserts or maintains a claim against an insurer.” Section 46(A). Neither lien is effective unless the physician files the lien: on the mechanic’s and materialman’s lien docket in the office of the county clerk of the county where the principal office of the physician is located, a written notice setting forth an itemized statement of the amount claimed, identifying the insurance policy or policies against which the lien is asserted. Section 46(C)(1).16 ¶35 Consequently, Oklahoma’s lien statute protects NIC from the concern it expressed as justifying its request for execution of the defend, indemnify and hold harmless provisions of the release, and therefore provides the protection NIC sought to obtain from Beers and attorney Green. The reasonableness of NIC’s request for execution of these provisions cannot be determined as a matter of law on the basis of this record. ¶36 Where the record contains evidentiary materials that permit differing inferences regarding the reasonableness of an insurer’s conduct, then what is reasonable is always a question to be determined by the jury on consideration of the circumstances of the case. See Badillo at ¶ 28, 121 P.3d at 1093; Newport v. USAA, 2000 OK 59, ¶¶ 10-11, 11 P.3d 191, 19596; McCorkle v. Great Atlantic Ins. Co., 1981 OK 128, ¶ 21, 637 P.2d 583, 587. Here, the question of whether NIC’s inclusion of, and demand that, Beers and attorney Green sign the defend, indemnify and hold harmless provisions, constituted unreasonable conduct is a question of fact that remains in dispute. Summary judgment on this aspect of Beers’s claim was not proper and is reversed. III. Issues Of Fact Regarding NIC’s Advice From Counsel ¶37 This Court has previously determined, in Part II(A) of this Opinion, that NIC acted reasonably in seeking Oklahoma counsel’s advice before communicating to Beers its offer to settle for policy limits. If the advice an insurer receives from its counsel regarding the han-
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dling of a UM claim is contrary to the dictates of section 3636, existing case authority, or in direct conflict with an express provision of the insurance contract, then it is unreasonable for the insurer to rely on that advice. Barnes, 2000 OK 55 at ¶¶ 17-18, 11 P.3d at 169-70. Nonetheless, reliance on the advice of counsel can be a defense to a bad faith claim, but the insurer’s reliance on that advice must, itself, be reasonable. See Barnes, 2000 OK 55 at ¶¶ 31-32, 11 P.3d at 174. ¶38 The record before this Court contains no evidence of what advice NIC’s adjuster Adamson received from counsel, or whether the Release she forwarded for signature reflected that advice. Assuming that the requirements of the Release were drafted pursuant to the recommendations of NIC’s counsel, the current record demonstrates neither the reasonableness of that advice, nor NIC’s reliance thereon. Therefore, the district court’s judgment cannot be sustained on the basis that NIC relied on the advice of counsel in its actions. CONCLUSION ¶39 In his response and objection to NIC’s motion for summary judgment, Beers argued that NIC’s delay in extending the offer of policy limits was unreasonable and in bad faith. Beers also argued that the terms of the Release required him to waive any bad faith tort claim he might have against NIC. The district court correctly ruled, as a matter of law, that (1) it was reasonable for NIC to consult with counsel between March 9 and May 18 before communicating the settlement offer to Beers; (2) contrary to the construction argued by Beers, the terms of the Release were not intended by NIC to foreclose his right to assert a bad faith tort claim; and (3) it was not unreasonable for NIC to demand a release of the contract claims before tendering payment of the UM policy limit. We affirm these rulings. Otherwise, the record fails to establish that NIC was entitled to judgment as a matter of law. Except as to the three issues this Court has identified as appropriate for summary adjudication, the judgment of the district court is reversed. The case is remanded for further proceedings consistent with this Opinion. ¶40 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. WISEMAN, C.J., and BARNES, J., concur. Vol. 81 — No. 30 — 11/13/2010
1. “Generally, an implied duty of an insurer to act in good faith and deal fairly with its insured is imposed by law upon the insurer-insured relationship, and a breach of that duty arises from a breach of the insurance contract where the breach occurs in a manner constituting a lack of good faith; i.e., constituting bad faith.” Brown v. Patel, 2007 OK 16, ¶ 9, 157 P.3d 117 (citing Christian v. American Home Assurance Co., 1977 OK 141, 577 P.2d 899). For convenience, we will refer to NIC’s alleged breach of duty as Beers’s “bad faith” claim. 2. Section 3636(F) further provides that “if a tentative agreement to settle for liability limits has been reached with an insured tort-feasor, written notice shall be given by certified mail to the uninsured motorist coverage insurer by its insured. Such written notice shall include: (1) “Written documentation of pecuniary losses incurred, including copies of all medical bills;” and (2) “Written authorization or a court order to obtain reports from all employers and medical providers.” 3. The record on appeal does not contain a medical authorization form signed by Beers. 4. As noted above, Adamson made her first request that Green provide this information, in addition to other documentation, on or about May 31, 2006, to assist her in evaluating Beers’s UM claim. 5. Beers dismissed Hillory from the action with prejudice on October 22, 2008. She is not a party to this appeal. 6. The actual interpleader documents are not included in the assembled record, but some details regarding the interpleader are provided in the parties’ summary judgment materials. The district court also discussed the interpleader proceedings with the parties at the summary judgment hearing, and set forth details of the interpleader in the order granting summary judgment to NIC. 7. The transcript of the summary judgment hearing is included in the assembled record. 8. The district court’s duty as gatekeeper is similar to that in (intentional infliction). The district court “must first determine, under the facts of the particular case and as a matter of law, whether insurer’s conduct may be reasonably perceived as tortious. If the [court] so determines, the legal gate to submission to the jury of the issue of insurer’s alleged bad faith conduct is open. However, until the facts, when construed most favorably against the insurer, have established what might be reasonably perceived as tortious conduct on the part of the insurer, the legal gate to submission of the issue to the jury remains closed.” City Nat’l Bank and Trust Co. v. Jackson Nat’l Life Ins., 1990 OK CIV APP 89, ¶ 18, 804 P.2d 463, 468-69. 9. The essence of the tort is failing to promptly pay a claim absent a reasonable belief that the claim is legally or factually insufficient. Buzzard v. Farmers Ins. Co., Inc., 1991 OK 127, ¶ 14, 824 P.2d 1105, 1109. The Supreme Court has previously applied this tort in the following circumstances: (1) making settlement offers for less than the insurer’s established minimum value of a valid claim, Newport v. USAA, 2000 OK 59 ¶ 17, 11 P.3d 190, 197; (2) conducting a biased investigation or determining the results of the investigation based on clearly unreliable expert evidence; McCoy v. Okla. Farm Bureau Mut. Ins. Co., 1992 OK 43, ¶¶ 13-22, 841 P.2d 568, 571; (3) determining that a claim is legally or factually insufficient without proper investigation, or failing to seek available information that might aid an insured in proving a claim. McCorkle v. Great Alantic Ins. Co., 1981 OK 128, ¶¶ 3-7, 637 P.2d 583, 584; Buzzard at ¶¶ 15-16, 824 P.2d at 1109; and (4) refusing to pay based on unreasonable interpretations of law or policy provisions, or reliance on unreasonable legal advice. Harrell v. Old American Ins. Co., 1991 OK CIV APP 91, ¶¶ 31-32, 829 P.2d 75, 79; Barnes v. Oklahoma Farm Bureau Mut. Ins. Co., 2000 OK 55, ¶ 21, 11 P.3d 162, 171. 10. Beers had also claimed that NIC acted unreasonably before March 9, 2007, by requesting unnecessary medical information in order to delay payment of his UM claim despite indisputable evidence that his medical bills exceeded Hillory’s insurance policy limits. 11. In fact, the Unfair Claims Settlement Practices Act, discussed further in Part II (c) of this Opinion, recognized this business practice by only prohibiting a release that extends beyond the subject matter of the payment. 36 O.S.2001 § 1250.5(8). 12. Section 1250.5 was amended effective July 1, 2010. This section of the UCSPA sets forth acts that may constitute an unfair claim settlement practice. 13. Section 1250.5(3) of the Act provides: B. It is an unfair claim settlement practice for any insurer to commit any act set out in Section 1250.5 of this title, or to commit a violation of any other provision of the Unfair Claims Settlement Practices Act, if: 1. It is committed flagrantly and in conscious disregard of this act or any rules promulgated hereunder; or 2. It has been committed with such frequency as to indicate a general business practice to engage in that type of conduct. 14. NIC argued not only that its actions were reasonable, but also that it had “a legal obligation to protect the interests of the lienholders
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by ensuring that liens have been satisfied before tendering payment of any settlement proceeds.” NIC cites no authority creating such an obligation, and we find none. The risk is not to the interest of the lienholder, who may enforce a properly perfected lien against the insurer irrespective of payment to the insured. It is in the insurer’s interest to protect against the risk of “double payment.” 15. Compare Kratz v. Kratz, 1995 OK 63, 905 P.2d 753 (statute giving hospital lien over patient’s recovery of damages for accident does not permit enforcement of such lien against uninsured motorist (UM) benefits paid by patient’s own insurer), with Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, 139 P.3d 873 (statutory physician’s lien on monies payable by insurer to injured person attaches to the proceeds of a patient’s uninsured motorist (UM) coverage). Section 46 was amended effective November 1, 2008, to include other “professional person[s] licensed under Title 59 of the Oklahoma Statutes who perform medical or healing arts within their scope of practice.” 16. Section 46(C)(2) also requires the physician to: send[ ], by registered or certified mail, postage prepaid, a copy of such notice with a statement of the date of filing thereof to the person, firm, or corporation against whom the claim is made . . . .
ing to the Employment Agreements for Hull and Hare respectively.
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¶3 On September 10, 2007, Hull and Hare each entered into Employment Agreements with High Sierra to serve as executive level managers for National Coal County, LLC, which included managing the daily business operations, maintaining client relationships and sustaining the good standing of the business. The Employment Agreements were executed with and attached as an exhibit to the PSA. Section 12.6 of the PSA specifically incorporated all attached exhibits into the Agreement.3 Section 10 of the Employment Agreements specifically incorporated the PSA as a part of the terms of employment.4 Section 12.14(a) of the PSA contains an arbitration provision which states: “Arbitration. Except as expressly provided otherwise in this Agreement, all disputes between the Parties arising under or related to this Agreement shall be solely and exclusively resolved by final and binding arbitration.”
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. Case No. 107,141. May 14, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE NOMA D. GURICH, JUDGE REVERSED AND REMANDED D. Kent Meyers, Evan G.E. Vincent, CROWE & DUNLEVY, P.C., Oklahoma City, Oklahoma, and Kent P. Sullivan, LEACH, SULLIVAN, SULLIVAN & WATKINS, L.L.P., Duncan, Oklahoma, and Trae Gray, THE LAW OFFICES OF TRAE GRAY, P.L.L.C., Coalgate, Oklahoma, for Defendants/Appellants, James C. McMillin, Vickie J. Buchanan, Jeremiah L. Buettner, McAFEE & TAFT, Oklahoma City, Oklahoma, for Plaintiff/Appellee. Bay Mitchell, Judge: ¶1 In a dispute arising out of a multi-million dollar purchase/sale of multiple companies, Defendants/Appellants David R. Hull (“Hull”) and Billy D. Hare (“Hare”) 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). Hull and Hare (“Appellants”) contend the arbitration provision contained in the Purchase and Sale Agreement (“PSA”) entered into between Appellants and Plaintiff/Appellee High Sierra Energy, L.P. (“High Sierra”) is applicable to all causes of action arising under or related to the PSA, including disputes relat2582
¶2 Appellants and High Sierra executed the PSA on September 10, 2007, for the purchase and sale of the assets of Hull’s Oilfield Service, Inc., Briggett, Inc., and Briggett Transportation, and the purchase of all outstanding “membership interests” of National Coal County, LLC.1 In accordance with the PSA, High Sierra paid Hull and Hare a purchase price of forty-two million dollars.2 Pursuant to the PSA, High Sierra made an additional investment of eighteen million dollars in the purchased companies.
¶4 On March 5, 2009, High Sierra commenced a lawsuit in the trial court against Hull and Hare alleging: breach of the Employment Agreements, misappropriation of trade secrets and confidential information and unfair competition, unjust enrichment, misappropriation of assets and property, constructive trust, breach of fiduciary duty, fraud and deceit, tortious interference with contractual or business relations, tortious interference with prospective economic advantage, and negligence. High Sierra alleged that it discovered evidence in December 2008 that Appellants “[W]illfully breached their Employment Agreements, including the Non-Solicitation Provision, the Non-Disclosure Provision and the Non-Compete Provision.” High Sierra’s Petition also sought preliminary and permanent injunctive relief prohibiting Hull and/or Hare from con-
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ducting any further activities alleged in the Petition. ¶5 On April 27, 2009, prior to filing an Answer, Appellants filed their motion to compel arbitration and stay the district court proceedings. They contended Section 12.14 of the PSA required High Sierra’s claims be submitted to arbitration. High Sierra filed its objection to Appellants’ motion to compel arbitration claiming, “(1) [N]one of the causes of action asserted by High Sierra against the Appellants arise under or invoke the terms of the Purchase Agreement but rather solely arise under the terms of the Employment Agreements and (2) such claims are excluded from arbitration as provided in the Purchase Agreement.” A hearing was held on May 14, 2009, after which the trial court overruled Appellants’ motion to compel arbitration. The order memorializing that decision was filed on May 27, 2009. Appellants filed this appeal two days later. ¶6 The parties agree that Section 12.14 of the PSA contains a valid agreement to arbitrate disputes arising under the PSA. High Sierra contends, however, that the allegations contained in its Petition arise solely under the Employment Agreements and in no way implicate the PSA. High Sierra maintains that Section 9 of the Employment Agreements unquestionably shows the parties intended to except disputes or claims arising under the Employment Agreements from arbitration.5 Additionally, High Sierra contends that Section 6 of the Employment Agreements, which describes the remedies available to the parties, expresses the intent that disputes arising under the Employment Agreement be litigated, not arbitrated.6 Finally, High Sierra claims that Section 12.7 of the PSA contains an additional exception to the arbitration provision, which states: Governing Law. All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the Buyer’s Documents shall be governed and construed in accordance with the laws of the State of Oklahoma for contracts made and to be fully performed in such state, without giving effect to any choice-of-law rules that may require the application of laws of another jurisdiction. The parties further agree that any dispute arising out of this Agreement shall be decided by the state courts in Oklahoma City, Oklahoma, or if any action or proceeding involving such questions arises Vol. 81 — No. 30 — 11/13/2010
under the Constitution, laws or treaties of the United States of America, or if there is a diversity of citizenship between the parties thereto, in the United States District Court for the Western District of Oklahoma. The parties shall each submit to the jurisdiction of said court and agree that service of process by certified mail, return receipt requested, shall be sufficient to confer said courts with in personam jurisdiction. High Sierra does not elaborate on how Section 12.7 of the PSA constitutes an additional exception to the arbitration provision. ¶7 Hull and Hare claim the PSA and the Employment Agreements are to be construed as one document, because each incorporates and references the other. Appellants also argue that some of the allegations contained in High Sierra’s Petition directly reference and relate to the PSA. Appellants contend the PSA identifies only two exceptions to arbitration found in Sections 3.5(c) and 12.14(m) of the Agreement, which are inapplicable to the facts of this case.7 ¶8 Appellants point out that Section 12.7 of the PSA and Sections 6 and 9 of the Employment Agreements do not mention arbitration or “expressly address the scope of the parties’ agreement to arbitrate.” Appellants suggest that, at best, Sections 6 and 9 of the Employment Agreements contain an implied exclusion from arbitration. Appellants argue that Section 12.7 dictates the proper jurisdiction for litigating disputes under the PSA in the event that Hull and Hare chose to waive their rights to arbitration.8 Finally, Appellants contend that reading Section 12.7 of the PSA as an exception to the arbitration provision would render “the arbitration clause meaningless, as no dispute arising under the PSA would be subject to arbitration.” ¶9 An order denying a motion to compel arbitration is an interlocutory order appealable by right, which we review de novo. See 12 O.S. Supp. 2006 §1879(A)(1); see also Thompson v. Bar-S Foods Co., 2007 OK 75, ¶9, 174 P.3d 567, 572. “The interpretation of an arbitration agreement is governed by general state-law principles of contract interpretation.” Bar-S Foods, ¶18, 174 P.3d at 574 (internal quotations omitted) (citing Wilkinson v. Dean Witter Reynolds, Inc., 1997 OK 20, ¶9, 933 P.2d 878, 880).
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¶10 In seeking to compel arbitration, a party “must present a statement of the law and facts showing an enforceable agreement to arbitrate the issues presented by the petition.” Rogers v. Dell Computer Corp., 2005 OK 51, ¶16, 138 P.3d 826, 830. In determining whether “the parties have consented to arbitration, the courts will decide whether there is a valid enforceable arbitration agreement, whether the parties are bound by the arbitration agreement, and whether the parties agreed to submit the particular dispute to arbitration. Oklahoma Oncology & Hematology P.C. v. U.S. Oncology, Inc., 2007 OK 12, ¶22, 160 P.3d 936, 944-45. ¶11 The contract must be construed to carry out the intent of the parties at the time the contract was made. Oxley v. General Atlantic Resources, Inc., 1997 OK 46, ¶14, 936 P.2d 943, 945. The Court of Civil Appeals has previously held: “In the search for the parties’ intent, ‘[s]everal contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.’” Hirsch Holdings, L.L.C. v. Hannagan-Tobey, L.L.C., 2008 OK CIV APP 79, ¶14, 193 P.3d 970, 973 citing 15 O.S. §158; Sunrizon Homes, Inc. v. American Guar. Inv. Corp., 1988 OK 145, ¶9, 782 P.2d 103, 107. ¶12 Oklahoma law reflects this State’s “strong presumption in favor of arbitration.” Towe, Hester & Erwin, Inc. v. Kansas City Fire & Marine Ins. Co., 1997 OK CIV APP 58, ¶24, 947 P.2d 594, 599. Title 12 O.S. Supp. 2006 §1857(A) declares arbitration agreements “valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” This provision reveals “a clear legislative intent that any disputes arising from the interpretation or application” of such agreements “shall have an immediate and speedy resolution by required arbitration.” Voss v. City of Oklahoma City, 1980 OK 148, ¶8, 618 P.2d 925, 928. The Supreme Court also has recognized that in situations “where arbitration has been contracted for it constitutes a substantive and mandatory right.” Voss, ¶5, 618 P.2d at 928. The right to compel arbitration is thus an affirmative defense to an action on contract. See Shaffer v. Jeffrey, 1996 OK 47, ¶6, 915 P.2d 910, 913. ¶13 “[C]ourts generally look with favor upon arbitration provisions as a shortcut to substantial justice with a minimum of court interference.” Long v. DeGeer, 1987 OK 104, ¶5, 753 P.2d 1327, 1328. Ambiguities are resolved in favor of arbitration. City of Muskogee v. Martin, 1990 OK 2584
70, ¶8, 796 P.2d 337, 340 (“Arbitration should be allowed unless the court can say with ‘positive assurance’ the dispute is not covered by the arbitration clause.”). However, the courts will not impose arbitration where the parties have not agreed to it because “[a]rbitration is a matter of consent, not coercion.” Oklahoma Oncology, ¶22, 160 P.3d at 944. ¶14 In the present case, this Court finds the PSA and the Employment Agreements clearly and unambiguously incorporate and reference each other; therefore, the Agreements must be viewed together to determine the intent of the parties. 15 O.S. 2001 §158; Hirsch Holdings ¶14, 193 P.3d at 973. Because the PSA and the Employment Agreements must be construed together, it is immaterial whether the allegations contained in High Sierra’s Petition arise solely under the Employment Agreements or also implicate the PSA. ¶15 Section 12.14 of the PSA contains a broad arbitration provision, which specifically allows for exceptions to arbitration as “expressly provided otherwise” in the Agreement. As mentioned above, the exceptions to Section 12.14 expressly set forth in the PSA are inapplicable to the issues in this case. Both Section 12.7 of the PSA and Section 9 of the Employment Agreements discuss the law governing the Agreements, set forth the proper jurisdiction for claims asserted under the Agreements, and contain no reference to arbitration. Section 6 of the Employment Agreements discusses the remedies available to a non-breaching party which are enforceable by the trial court and also makes no mention of arbitration. ¶16 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. ¶17 This Court agrees that 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. Appellants and High Sierra clearly and unambiguously agreed to resolve certain disputes through arbitration. Oklahoma law commands that “where arbitration has been contracted for it
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constitutes a substantive and mandatory right.” Voss, ¶5, 618 P.2d at 928. ¶18 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. City of Muskogee, ¶8, 796 P.2d at 340. 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. Therefore, we reverse the order of the trial court overruling Appellant’s motion to compel arbitration and for stay of the action. ¶19 REVERSED AND REMANDED. JOPLIN, P.J., and BELL, V.C.J., concur.
2010 OK CIV APP 97 BETTY WEST, Plaintiff/Appellant, vs. STEVE SPENCER d/b/a SPENCER’S SMOKEHOUSE & BARBEQUE, and D. WAYNE BREWER d/b/a, 23 POST PLAZA COMPANY, Defendants/Appellees. Case No. 107,156. June 4, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE CAROLYN RICKS, JUDGE
1. The effective date for the purchase and sale of Hull’s Oilfield Service, Inc., Briggett, Inc., and Briggett Transportation, Inc. was August 1, 2007, and the effective date for the transfer of the membership interests in National Coal County, LLC was September 1, 2007. 2. The purchase price was paid as follows: a cash payment in the amount of $40 million and common “units” of High Sierra in the amount of $2 million, both paid one-half to Hull and one-half to Hare. 3. Section 12.6 of the PSA specifically states: “This Agreement (including the Exhibits and Schedules hereto, and the documents and instruments executed and delivered in connection herewith) constitutes the entire agreement among the parties with respect to the subject matter hereof.... All Schedules and Exhibits attached to this Agreement are expressly made a part of, and incorporated by reference into, this Agreement.” 4. Section 10 of the Employment Agreements specifically states: “Entire Terms. These terms and the Purchase and Sale Agreement set forth above contain the entire expression of Employee’s terms of employment and Employee acknowledges that Company has made no promises or guaranties other than as may be expressly set forth herein, if any.” (Emphasis added to “and”). 5. Section 9 of the Employment Agreements provides: “Law Governing. These terms shall be governed by and construed in accordance with the laws of the State of Oklahoma. The parties agree to the exclusive jurisdiction of the state and federal courts located in Oklahoma City, Oklahoma.” 6. Section 6 of the Employment Agreements provides: “Remedies. The Employee acknowledges that monetary damages would be inadequate to compensate the Company for any breach by the Employee of the covenants set forth in Section 5 above. The Employee agrees that, in addition to other remedies that may be available, the Company shall be entitled to obtain injunctive relief against the threatened breach of these Terms or the continuation of any breach, or both, without necessity of proving actual damages. If any party hereto defaults in the performance of its covenants, agreements, or other obligations described in this Agreement, then in addition to any and all other rights or remedies which the non-defaulting party may have against the defaulting party, the defaulting party will be liable to and will pay to the non-defaulting party a sum equal to the non-defaulting party’s court costs and the reasonable fees of its attorneys and their support staff incurred in enforcing the covenants, agreements and other obligations of the defaulting party in this Agreement.” 7. Section 3.5(c) concerns objections to the Final Statement and provides: “If the parties are unable to resolve any disputed item within 15 days after the Buyer’s receipt of Seller’s objections, any such disputed item shall be submitted to a nationally recognized independent accounting firm mutually agreeable to the parties who shall be instructed to resolve such disputed item within 30 days. The resolution of disputes by the accounting firm so selected shall be set forth in writing and shall be conclusive, binding and non-appealable upon the parties...” Section 12.14(m) of the PSA states: “To the extent that the dispute relates to a claim for indemnification under Article 11 that arises in connection with a third party claim asserted in court, then the forego-
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ing arbitration provisions shall not be applicable to that dispute so that the matter may be brought in connection with the action involving the third party claim.” 8. The Court is not persuaded by Appellants’ suggestion that any reference to the jurisdiction of the courts in Oklahoma City or court costs is consistent with an agreement to arbitrate based upon the fact that arbitration awards must be confirmed in state or federal court.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED Rex Travis, Paul D. Kouri, Oklahoma City, Oklahoma, for Plaintiff/Appellant, Paul B. Middleton, DOBBS & MIDDLETON, Oklahoma City, Oklahoma, and Randy L. Goodman, RANDY L. GOODMAN, P.C., Nicoma Park, Oklahoma, for Defendant/Appellee. Bay Mitchell, Judge: ¶1 In this premises liability action, Plaintiff/ Appellant, Betty West, appeals from orders granting summary judgment to Defendants/ Appellees, Steve Spencer d/b/a Spencer’s Smokehouse & Barbeque (“Spencer”) and D. Wayne Brewer d/b/a 23 Post Plaza Company (“Brewer”).1 ¶2 Plaintiff sustained personal injuries when the toe of her shoe caught in an expansion joint in the sidewalk after exiting Spencer’s restaurant.2 It was in the afternoon and Plaintiff admitted there was nothing obscuring her vision of the sidewalk. The evidence showed the joint was approximately 7/8 inch wide and between ¼ to ½ inch deep. Plaintiff contends the expansion joint was wider and deeper than necessary, allowing the toe of her shoe to catch in the joint. Plaintiff filed suit against Spencer, the restaurant owner, and Brewer, the property owner, alleging her fall was caused by Defendants’ negligence. ¶3 Brewer’s motion for summary judgment contends the expansion joint was a “trivial defect” for which no liability could attach as a matter of law. Plaintiff responded, arguing the “trivial defect doctrine” was inapplicable to
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private landowners and the sidewalk had a “deceptively innocent appearance.” Brewer replied that Plaintiff failed to present evidence the expansion joint in question was different from any other expansion joint, and any defect was apparent and observable. The trial court granted Brewer’s motion for summary judgment without explanation of the basis for its decision. ¶4 The threshold question for any negligence action is whether the defendant owed a duty to the plaintiff. Pickens v. Tulsa Metro. Ministry, 1997 OK 152, ¶8, 951 P.2d 1079, 1082. Brewer contends under the “trivial defect doctrine” no duty was owed to Plaintiff. The doctrine is described in Evans v. City of Eufaula, 1974 OK 116, ¶¶26-27, 527 P.2d 329, 332: A municipality will not be liable for every defect or obstruction, however slight or trivial, or little likely to cause injury, or for every inequality or irregularity in the surface of the way, but is only required to guard against danger it could have, or should have, anticipated in the exercise of reasonable care and prudence. When a defect is so slight that no careful or prudent person would reasonably anticipate any danger from its existence, but still an accident occurs which could have been guarded against by the exercise of extraordinary care and foresight, the municipal corporation is entitled to a directed verdict. More recently, it was stated another way: [The municipality] is answerable only for negligence in failing to repair, remove or guard against substantial (as distinguished from slight or trivial) defects or obstructions after actual or constructive notice of their existence is established.
¶6 Brewer also contends the sidewalk joint was open and obvious. It is undisputed Plaintiff was an invitee at the time of her accident. Under Oklahoma law, an invitor has a duty to exercise reasonable care to prevent injury to an invitee, but owes no duty to protect against hazards that are “open and obvious dangers.” Williams v. Tulsa Motels, 1998 OK 42, ¶6, 958 P.2d 1282, 1284. An invitee assumes all normal and ordinary risks incidental to the use of the premises and to avoid dangers that were obvious or should have been observed using ordinary care. Id. ¶7 “[T]he duty to keep premises in a reasonably safe condition for the use of the invited public applies solely to defects or conditions which may be characterized as hidden defects, traps, snares or pitfalls — things which are not readily observable.” Krokowski v. Henderson Nat’l Corp., 1996 OK 57, ¶6, 917 P.2d 8, 11 (citing Buck v. Del City Apartments, Inc., 1967 OK 81, ¶21, 431 P.2d 360, 365-66). The Oklahoma Supreme Court has stated a hidden danger: [N]eed not be totally or partially obscured from vision or withdrawn from sight; most generally, the phrase is used to denote a condition presenting a deceptively innocent appearance of safety “which cloaks a reality of danger”. Deception, camouflage, deceit and fraud in concealment are the very concepts to which the hidden peril theory of liability traces its historical origin. Henryetta Constr. Co. v. Harris, 1965 OK 88, ¶3, 408 P.2d 522, 531 (Irwin, J., supplemental opinion on rehearing) (emphasis added).
McCathern v. City of Oklahoma City, 2004 OK 61, ¶20, 95 P.3d 1090, 1098 (footnotes omitted). Further, as to a municipality, its duty of care does not change with the status of the party injured. (i.e., invitee, licensee, etc.). Id. at ¶13, p. 1096.
¶8 There is no fixed rule for determining whether a defect in the premises constitutes a trap or hidden danger. Jack Healey Linen Serv. Co. v. Travis, 1967 OK 213, ¶8, 434 P.2d 924, 927. It depends on the physical condition of the premises and the use made thereof by the invitor. Id. The standard is objective, “whether under similar or like circumstances an ordinary prudent person would have been able to see the defect in time to avoid being injured.” Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶10, 951 P.2d 1079, 1084.
¶5 Presently, the “trivial defect doctrine” is applicable only to municipalities and applies a different standard than that applicable to private or non-governmental defendants. Not being a municipality, Brewer’s reliance on the “trivial defect doctrine” is misplaced.
¶9 As the property owner, Brewer had a duty to invitees to use reasonable care to maintain the sidewalk. Reasonable minds could disagree on whether the expansion joint constituted an open and obvious hazard. Reasonable minds could differ on whether the expansion joint
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constituted a hidden danger based upon a “deceptively innocent appearance.” Further, we reject Brewer’s argument Plaintiff was required to submit evidence in opposition to summary judgment proving the expansion joint in question was different from expansion joints in other public places. Brewer presented no evidence to suggest the expansion joint in question was a standard size or within acceptable limits in the construction industry. If conflicting inferences can be drawn from the facts as to whether the hazard had a “deceptively innocent appearance,” the issue of whether it was an open and obvious condition is for the jury. Jack Healey Linen Serv. Co., ¶9, 434 P.2d at 928. Summary judgment was improperly granted in favor of Brewer. ¶10 Spencer, who leased the restaurant space from Brewer, moved for summary judgment like Brewer, arguing the expansion joint constituted a “trivial defect” for which no liability could attach as a matter of law. Spencer further argued summary judgment was proper because, pursuant to his lease agreement, Brewer, the property owner, was responsible for maintaining the sidewalk in question. Plaintiff pointed out the “trivial defect doctrine” is not applicable as discussed above and Spencer could not delegate his duty to maintain the sidewalk. The trial court granted summary judgment to Spencer finding no duty was owed to Plaintiff, because the sidewalk in question was not under Spencer’s control and Spencer had no duty to maintain the sidewalk. ¶11 The Court of Civil Appeals has recognized that “a lessee is liable to a third party injured on the leased premises only when the lessee (1) has control of the premises, (2) has had a reasonable opportunity to inspect the premises, and (3) could have discovered the defect upon inspection.” Strader-Faiazi v. Edmond Fourth of July Festivals, 2001 OK CIV APP 93, ¶5, 28 P.3d 1161, 1162-163. ¶12 Oklahoma recognizes a nondelegable duty to maintain one’s premises in a reasonably safe condition to protect invitees. Thomas v. E-Z Mart Stores, Inc., 2004 OK 82, ¶12, 102 P.3d 133, 137. This nondelegable duty applies primarily where an invitor/property owner attempts to delegate his duty to an independent contractor: [A] landowner’s duty may not be delegated in the sense that an invitor may be held Vol. 81 — No. 30 — 11/13/2010
liable for certain acts of its independent contractors. Allocation of the risk is placed on the invitor who is in control of its premises, including the injury-causing condition thereon, when the invitor either knew or should have known of its existence. Id. at ¶25, 102 P.3d at 140. In the instant case, the “non-delegable duty” argument fails because it erroneously presumes Spencer had a duty to maintain the sidewalk. Spencer did not own the property and had no duty or responsibility for maintaining the sidewalk that he could have delegated to someone else. ¶13 In relevant part, Paragraph 7.1 of the Lease Agreement between Spencer and Brewer states: “LESSOR [Brewer] shall keep in good repair all exterior parts of the building, including, but not limited to, the following: foundation, floor, walls, roof, sidewalks, and exterior painting.” Paragraph 7.3 of the Lease Agreement states: “LESSEE [Spencer] shall sweep and keep clean the sidewalks and adjacent service area of the leased premises. LESSOR may enter upon the leased premises at all reasonable hours to inspect it.” (Emphasis added). ¶14 Pursuant to the Lease Agreement, Spencer’s only duty was to keep the sidewalk clean. Brewer, the property owner, specifically retained control of the sidewalk and contractually agreed to keep it in good repair. No evidence was presented to suggest either Spencer or Brewer attempted to delegate any duty of care to an independent contractor. We find no error in the trial court’s grant of summary judgment to Spencer. Spencer did not own or have control of the sidewalk, and had no duty to maintain the same. ¶15 Accordingly, the order of the trial court granting summary judgment in favor of Spencer is affirmed. The order of the trial court granting summary judgment in favor of Brewer is reversed and remanded for further proceedings consistent herewith. ¶16 AFFIRMED IN PART, REVERSED IN PART AND REMANDED. JOPLIN, P.J., and BELL, V.C.J., concur. 1. This Court reviews summary judgments de novo, viewing all facts and inferences presented by the evidence in the light most favorable to the nonmoving party. Miller v. David Grace, Inc., 2009 OK 49, ¶10, 212 P.3d 1223, 1227. Summary judgment is 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. If the evidentiary materials show controverted material facts, or if reasonable minds could reach different conclusions from undisputed material
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facts, a motion for summary judgment should be denied. Hulett v. First Nat’l Bank & Trust Co. in Clinton, 1998 OK 21, ¶3, 956 P.2d 879, 881. 2. The parties do not dispute the facts of how Plaintiff fell.
2010 OK CIV APP 94 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 DONALD 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 CHAPERNEY 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. Case No. 107,035. May 14, 2010 APPEAL FROM THE DISTRICT COURT OF CREEK COUNTY, OKLAHOMA HONORABLE DOUGLAS W. GOLDEN, TRIAL JUDGE AFFIRMED Sam T. Allen, III, LOEFFLER, ALLEN & HAM, Sapulpa, Oklahoma, for Defendants/CrossPetitioners/Appellants. Jessie Huff Durham, U.S. DEPARTMENT OF THE INTERIOR, Tulsa, Oklahoma, for Defendant/Appellees. Carol M. Hansen, Judge: ¶1 In 1992, Plaintiff, L.G. Sam Davis, filed a petition in this case seeking to quiet title and 2588
partition a 160 acre tract of property in Creek County:1 The Northeast Quarter (NE/4) of Section 7, Township15 North, Range 8 East [the property] ¶2 In October 1994, while the case was pending, Donal R. Mayberry (Appellant) purchased a tax sale certificate to an undivided 11/60 interest [subject interest] in the property2 which was taxable Restricted Indian Land. According to the offices of the county assessor and the county treasurer, Alice Grayson [Alice] of Henryetta, Oklahoma, was listed as the owner of the subject property. Appellant was unaware Alice had died in 1984.3 Because he was unable to obtain personal service of the notice of his tax deed application upon Alice, service by publication was issued to Alice at her address in Henryetta. ¶3 In 1997, a Certificate Tax Deed was issued to Appellant. In 2000, Appellant conveyed by quit claim deed the subject interest in the property to himself and his wife, Sharon [collectively, Appellants] as joint tenants with the right of survivorship. ¶4 In 2002, Plaintiff filed an amended petition adding Appellants as defendants. In their amended answer, counter-claim and crosspetition [amended cross-petition], Appellants asserted title to the 11/60 undivided interest in the property by virtue of a County Treasurer Certificate Tax Deed and claimed to have been in “actual, full, exclusive, open, notorious, peaceful, continuous and uninterrupted possession of their said 11/60 undivided interest” for the past five years. The Secretary of the Interior, through the Field Solicitor, Tulsa Field Office, United States Department of the Interior, and the Trial Attorney [the Secretary] filed a “Reply/Answer” to Appellants’ amended cross-petition.4 ¶5 The Secretary also filed a motion for partial summary judgment, “for the protection of the interests of the Indian defendants owning restricted land that is the subject of this case ...” seeking a summary disposition of Appellants’ cross-claims. ¶6 In its order on Secretary’s motion for partial summary judgment, the trial court found: 8. The 11/60 interest covered by the tax deed was restricted against alienation pursuant to federal law. Act of Congress of
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May 27, 1908, 35 Stat. 312, as extended by the Act of Congress of May 10, 1928, 45 Stat. 495, and amended by the Act of Congress of August 4, 1947, 61 Stat. 731. 9. The 11/60 interest covered by the tax deed was taxable pursuant to Section 6 of the Act of August 4, 1947 as amended by the Act of August 12, 1953, 67 Stat. 731, (hereinafter the “1947 Act”). However, Section 6(e) of the 1947 Act provides: Before a county treasurer shall proceed to sell any restricted land for delinquent taxes, it must appear from the records of the office of the county treasurer that a list of the tracts included in the proposed sale of land for delinquent taxes in said county has been sent by registered mail to the Superintendent for the Five CivilizedTribes at Muskogee, Oklahoma, at least ninety days before the date fixed by the laws of the State of Oklahoma for sales of land for delinquent taxes. 10. That Section 6(e) of the 1947 Act requires that notice of a tax sale be sent to the Regional Director, Bureau of Indian Affairs, Eastern Oklahoma Regional Office (successor to the Superintendent for the Five Civilized Tribes), by registered mail, at least 90 days prior to the issuance of a Certificate Tax Deed covering any restricted interest in lands. 11. It does not appear from the records of the Creek County Treasurer, the records of the Creek County Clerk, nor the records of the Bureau of Indian Affairs that any list of lands for tax sale or other notice that the subject property would be sold for taxes was sent to the Regional Director, Bureau of Indian Affairs, Eastern Oklahoma Regional Office anytime prior to the issuance of the tax deed in this case. The trial court granted, in part, Secretary’s motion for partial summary judgment as to the validity of the tax deed, “... that the tax deed is VOID because the provisions of Section 6(e) of the 1947 Act, requiring notice be served on the Bureau of Indian Affairs prior to the sale of restricted property for delinquent taxes, were not followed.” Because it found a genuine issue of fact as to whether Appellants acquired title to the 11/60 interest covered by the tax Vol. 81 — No. 30 — 11/13/2010
deed by adverse possession, it overruled Secretary’s motion, in part, on the issue of adverse possession. ¶7 The parties filed trial briefs, and Appellants filed a supplemental trial brief citing for the first time, Armstrong v. Maple Leaf Apartments, Ltd., et al. 436 F.Supp. 1125, in support of their argument that §6(e) of the 1947 Act is unconstitutional as applied. ¶8 In the pre-trial conference order, over Appellants’ objections, the trial court prohibited the proffered testimony of the county assessor, the county treasurer, and a local attorney in support of Appellants’ argument the tax deed is valid. The pre-trial conference order limited the trial to the sole issue of adverse possession and prohibited Appellants from adducing any evidence, except as to adverse possession. ¶9 Following the trial, the trial court entered its Findings of Fact and Conclusions of Law, finding 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 property for the five years preceding the filing of their claims. ¶10 Thereafter, the trial court entered its Journal Entry of Judgment on Claims of Donal and Sharon Mayberry cancelling Appellants’ claims, declaring Appellees the true and rightful owners of the 11/60 undivided interest in the subject property, and ordering the Secretary, as trustee for Appellees, to remit the taxes, penalties, interest and costs to Appellants as required by 68 O.S.2001 §3140. Pursuant to 12 O.S.2001 §994(A), the trial court expressly found its order to be a final adjudication of Appellants’ claims. Appellants appeal. ¶11 Appellants argue the trial court erred in determining the tax deed void because, pursuant to §6(e) of the 1947 Act, the Creek County Treasurer did not provide notice to the BIA prior to the sale of the subject interest in the subject property.5 They claim county treasurers and lawyers are generally ignorant of this statute, as there are no state appellate cases and only one Oklahoma federal district court case construing it. However, although the 1947 Act was not codified, the United States Statutes at Large provides “the legal evidence of laws.” United States Bank of Oregon v. Independent Ins. Agents of America, 508 U.S. 439 (1993). Moreover, just as everyone is charged with knowledge of the United States Statutes at Large,
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once a statute has been published, all citizens are on notice of its contents. Federal Crop Insurance v. Merrill, 332 U.S. 380, 68 S.Ct.1, 92 L.Ed. 10. ¶12 Furthermore, notice is a jurisdictional requirement. Because the Creek County Treasurer did not provide notice to BIA at least 90 days prior to the sale of the subject interest, it had no jurisdiction to issue the tax deed. As a result, the tax deed issued was void. Wholesale Petroleum Co. v. Chartin, 1998 OK CIV APP 183, 972 P.2d 1184. An appellate court reviews a grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051. The trial court did not err in its determination the tax deed is void because the Creek County Treasurer did not provide notice to the BIA prior to the sale of the subject interest in the subject property. ¶13 Because this Court affirms the trial court’s determination the tax deed was void for the above-stated reasons, it becomes unnecessary to address Appellants’ arguments dealing with the constitutionality of §6(e) supported by their citation to Armstrong v. Maple Leaf Apartments, Ltd., 436 F.Supp. 1125 (N.D. Okla. 1977).6 ¶14 Next, Appellants submit the trial court abused its discretion in its determination they had not met their burden of proof to establish title to the subject interest by adverse possession. Title 12 O.S.2001 §93(3) provides a five year statute of limitations for the recovery of real property sold for taxes. Section 93(3) is applicable regardless of whether the tax deed is void. §93(6). To apply this statute of limitations to bar an attack upon a void tax deed, it must be shown by the evidence the holder of the tax deed recorded the tax deed and has been in possession of the land for five continuous years, and that possession must be under the same conditions as have been applied in cases involving adverse possession under the fifteen-year statute. Garrett v. Dean, 167 OK 241, 435 P.2d 167. ¶15 Where the requirement of possession is met, title is created by prescription. Title 60 O.S.2001 §333. The claimant must show possession is hostile, under a claim of right or color of title, actual, open, notorious, exclusive, and continuous for the statutory period. Francis v. Rogers, 2001 OK 111, 40 P.3d 481. The valid title holder is presumed to be in constructive possession. Kizzire v. Sarkeys, 1961 OK 111, 361 P.2d 2590
1082. Constructive possession can never be ousted by anything less than an actual possession maintained for the necessary period. Morton v. Van Orsdol, 1950 OK 219, 222 P.2d 520. Actual possession is an indispensable element in adverse possession. Williams v. Bailey, 1954 OK 19, 268 P.2d 868. Actual possession is a mixed question of fact and law and consists of the exercise of acts of dominion over the property, in making the ordinary use of it and taking the ordinary profits it is capable of yielding in its present state. Cox v. S.J. Sarkeys, 1956 OK 294, 304 P.2d 979. ¶16 An undivided interest is subject to adverse possession, and the elements necessary to establish title to any undivided interest are the same as those necessary to establish prescriptive title to the whole. Grand Lodge of Oklahoma v. Webb, 1956 OK 342, 306 P.2d 340. ¶17 Specifically, Appellants argue the acts of ownership required to establish title by adverse possession to an undivided 11/60 interest in a 160 acre tract of land differ greatly from those acts required to establish title to all of the right, title, and interest of that 160 acre tract. They point out that as co-tenants in the subject interest, their actual possession of the subject property is subject to the equal rights of their co-tenants. See 20 Am.Jur.2d. §41-42. Therefore, their acts of ownership are necessarily limited. ¶18 Appellants argue that following Appellant Donal’s recording of the certificate tax deed on February 20, 1997, their right of possession of the 11/60 interest was uninterrupted for five years, because during that time, no one challenged the validity of the tax deed. Additionally, they submit the execution and recording of the certificate tax deed and the execution of the quit claim deed dated November 16, 2000, to Appellant Donal and his wife, Sharon, as joint tenants with right of survivorship, and its recording are acts of ownership. Also, they claim Appellant Donal’s payment of ad valorem taxes on the 11/60 interest since he purchased the certificate tax deed is an important factor in establishing prescriptive title to the interest. ¶19 However, neither the payment of taxes nor the recording of a deed constitute possession. Thus, the payment of taxes and the recording of a deed without more will not establish prescriptive title. Williams v. Bailey, supra. Furthermore,
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To apply the limitations as provided in paragraph three [12 O.S.2001 §93(3)] in the mere instance of the recording of a void tax deed and without a requirement of occupancy under the void instrument for any particular period of time, and in an effect to take title out of one person and vest it in another, as sought by the plaintiff herein, might well be argued to work a deprivation of property without due process of law. Williams v. Bailey, supra. ¶20 Adverse possession cannot be established by inference; every element must be established by clear and positive proof. Willis v. Holley, 1996 OK 107, 925 P.2d 539. 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. BUETTNER, P.J., and HETHERINGTON, J., concur. 1. The petition named Plaintiff’s then co-tenants as defendants. It included Appellees: Solomon Lee, Jr., Shirley Mae Lee Hill, Sidney Lee, Samarian Lee, now Jackson, Simeon Lee a/k/a Cheparney Lee, Sandra Lee now Frazier, Suzanna Lee now Randall a/k/a Suzanne Lee now Randall, Sharon Lee now Frazier, and Sylvia Tulsa. 2. The 1993 ad valorem taxes had not been paid on the interest in the property when Appellant purchased the tax sale certificate. 3. Alice’s estate was judicially distributed to her heirs: Solomon Lee, Jr., Shirley Hill, Sidney Lee, Samarian Jackson, Simeon Lee, Sandra Frazier, Suzanne Randall, Sharon Frazier, and Sylvia Tulsa [Appellees]. 4. Pursuant to notice served on the Regional Director of the Eastern Oklahoma Region, Bureau of Indian Affairs (successor to the Superintendent, Five Civilized Tribes), the “Trial Attorney” representing the interests of Appellees, filed an answer to the amended petition. Pursuant to Section 3 of Act of April 12, 1926, 44 Stat. 239, the United States may appear in a state court action involving title to restricted lands to protect the interest of the Indian landowners. The Field Solicitor and the Trial Attorney are authorized to appear in any state court action wherein restricted lands are at issue. Section 6, Act of May 27, 1908, 35 Stat. 312, Section 4 of the Act of August 4, 1947, 61 Stat. 731, and 25 C.F.R. section 16.4. The Trial Attorney is authorized to “take such action as the Secretary [of the Interior] could take if he were personally appearing in his official capacity as counsel therein.” 25 C.F.R. section 16.4. 5. Appellants have never argued the Creek County Treasurer provided notice to the BIA of the proposed sale of the subject interest. 6. In that case, the Indian plaintiff sought to set aside a deed to restricted property which had not been approved by the district court, as required by Section 1 of the 1947 Act. The district court determined (1) it would be a denial of due process to apply the statute where the purchasers had made substantial improvements on property; (2) the statute did not provide sufficient means for purchasers to obtain notice and knowledge of its requirements to comply with due process; (3) the action was barred by laches; (4) and the action was barred by plaintiff’s unclean hands. This decision was affirmed in Armstrong v. Maple Leaf Apartments, Ltd., 622 F.2d 466 (10th Cir. 1979) on the determination the action was barred by laches.
2010 OK CIV APP 93 CUSTOM RADIO CORPORATION, Plaintiff/Appellee, vs. PASSENGER TRANSPORTATION SPECIALISTS, INC., Vol. 81 — No. 30 — 11/13/2010
d/b/a RED CARPET CHARTERS, Defendant/ Appellant. Case No. 107,033. May 11, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE JAMES B. CROY, TRIAL JUDGE AFFIRMED Stephen L. Degiusti, Evan G.E. Vincent, CROWE & DUNLEY, a Professional Corporation, Oklahoma City, Oklahoma, for Plaintiff/ Appellee, Sharon Voorhees, SHELTON VOORHEES LAW GROUP, Oklahoma City, Oklahoma, for Defendant/Appellant. Doug Gabbard II, Presiding Judge: ¶1 Defendant/Appellant, Passenger Transportation Specialists, Inc., d/b/a Red Carpet Charters (PTS), appeals the trial court’s order granting a “Motion to Correct Domesticated Foreign Judgment to Reflect the Correct Name of the Defendant” filed by Plaintiff/Appellee, Custom Radio Corporation (CRC). We affirm. BACKGROUND ¶2 CRC is an Indiana corporation which sells audio and video equipment. PTS is an Oklahoma corporation which operates a charter bus company under the name “Red Carpet Charters.” Its principal is Jeff Polzien and its operating address is 6800 Camille Street, Oklahoma City, Oklahoma. ¶3 Between 2007 and early 2008, CRC sold PTS certain audio and video equipment. In each transaction, CRC invoiced PTS using PTS’s operating name, “Red Carpet Charters, Inc.,” and PTS paid CRC with checks in the name of “Red Carpet Charters.” ¶4 In May 2008, after a dispute arose between the parties, CRC sued “Red Carpet Charters, Inc.,” in the Superior Court of Allen County, Indiana. CRC served summons on “Red Carpet Charters, Inc.” by leaving a copy of same with Kim Davis-Steele, a PTS employee and corporate officer, at the Camille Street address. PTS did not answer, and CRC eventually obtained a default judgment against “Red Carpet Charters, Inc.” ¶5 In October 2008, CRC filed this judgment in the District Court of Oklahoma County,
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Oklahoma, pursuant to the Uniform Enforcement of Foreign Judgments Act, 12 O.S.2001 and Supp. 2009 §§719 et seq. However, after PTS received proper notice of this filing, Jeff Polzien filed a letter with the court, stating, in part, that “Red Carpet Charters, Inc., has no assets, no employees, no officers and ceased any business and filed a final income tax return in the early 1990’s.” CRC responded with the motion from which the present appeal arises, seeking to correct its judgment to reflect that the defaulting defendant was PTS, instead of “Red Carpet Charters, Inc.” PTS replied by filing a special appearance and objection. ¶6 The appellate record indicates that Jeff Polzien began Red Carpet Charters, Inc., in 1985. However, in the early 1990’s, Red Carpet Charters, Inc., ceased doing business, Polzien formed PTS, and PTS began operating a charter bus service at the same location as Red Carpet Charters, Inc., and using the similar name “Red Carpet Charters.” Records on file with the Oklahoma Secretary of State list Polzien as the registered service agent for both PTS and Red Carpet Charters, Inc. ¶7 After a hearing, the trial court granted CRC’s motion to correct the judgment. The court found that CRC incorrectly obtained judgment against Red Carpet Charters, Inc., instead of PTS, due to a “misnomer,” and that PTS is “the same Defendant and is not a new or distinct party” as Red Carpet Charters, Inc. PTS now appeals. STANDARD OF REVIEW ¶8 Whether a trial court has the authority to amend the party defendant in a foreign judgment is a question of law. Questions of law are reviewed de novo, that is, we conduct a plenary, non-deferential re-examination of the trial court’s legal rulings. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, n. 1, 932 P.2d 1100. However, if a trial court has authority to grant such an amendment, its decision to do so involves the exercise of discretion which we review using an abuse of discretion standard. See Pan v. Bane, 2006 OK 57, §14, 141 P.3d 555, 561. ANALYSIS ¶9 Courts have long recognized their authority to generally correct errors of omission, inclusion, or description of parties in a lawsuit. In Stocker v. Dobyns-Lantz Hardware Co., 1924 2592
OK 276, §1, 224 P. 303, 303, the Oklahoma Supreme Court stated: An individual who has been served with a summons in which he is designated by the wrong name is entitled to plead a misnomer, but the service of summons designating the defendant by the wrong name, where it is personally served upon the right defendant, is sufficient to give the court jurisdiction of the defendant, and such defect becomes immaterial, unless the defendant appears and pleads the misnomer. See also Butler Const. Co. v. Bentley, 1951 OK 275, 237 P.2d 886. Misdescription of parties is common where a business is being sued because businesses often operate using trade names: When businesses are being sued it is not uncommon for the name of the defendant to be stated inexactly. It is then important to determine if the parties will be misled by the name given in the summons. If the name given approximates the intended party’s correct name and it is unlikely that another company exists bearing the incorrect name, or if the name given is that by which the company is commonly known, an amendment can be obtained to correct the error, at least where actual service and notice has been obtained. 62B Am. Jur. 2d Process � §96 (2005)(footnotes omitted). ¶10 Since a misnomer defect in the summons is “immaterial” in conferring jurisdiction over a defendant, jurisdiction continues through the entry of judgment. It follows, therefore, that a misnomer defect may be corrected even after a judgment has been entered. In addition, a judgment may be corrected or amended to substitute one party for another as either plaintiff or defendant, where necessary to carry out the purpose of the judgment, as long as the amendment does not bring within the judgment new parties who were not previously before the court. 49 C.J.S. Judgments� §286 (1997).1 ¶11 In Oklahoma, 12 O.S. 2001 §2015(A) authorizes amendments by the party before a responsive pleading is served, and with court approval afterwards. Subsection (B) authorizes an amendment to conform to the evidence at trial. Subsection (C) provides for relation back of amendments under the following circumstances:
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An amendment of a pleading relates back to the date of the original pleading when: 1. Relation back is permitted by the law that provides the statute of limitations applicable to the action; or 2. The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or 3. The amendment changes the party or the naming of the party against whom a claim is asserted if paragraph 2 of this subsection is satisfied and, within the period provided by subsection I of Section 2004 of this title for service of the summons and petition, the party to be brought in by amendment: a. Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and b. Knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. ¶12 Section 2015 is based upon Federal Rule of Civil Procedure 15(c), 28 U.S.C.A. (West 2008), which codifies both the traditional misnomer doctrine and the similar relation-back doctrine. Roberts v. Michaels, 219 F.3d 775 (8th Cir. 2000). Because the state statute is based upon a federal rule, the Oklahoma Supreme Court has adopted the construction placed upon this rule by the federal courts. Dotson v. Rainbolt, 1995 OK 39, 894 P.2d 1109; Prough v. Edinger, Inc., 1993 OK 130, 862 P.2d 71. ¶13 The rationale behind §2015(C) is that where a party to be added has received timely and fair notice of the institution of the original action and the facts upon which it is based, that party has received all the notice and protection required. Pan v. Bane, 2006 OK 57, 141 P.3d 555. The Pan Court held that such an amendment must meet three requirements: (1) the party being added must have been involved in the same transaction upon which the suit is based; (2) the party to be added must have received timely notice and will not be prejudiced in maintaining a defense, if it desires to do so; and (3) the party to be added, within the specified Vol. 81 — No. 30 — 11/13/2010
time period, knew or should have known that but for the mistake of identity the action would have been brought against him or her. Id. at ¶10, 141 P.3d at 560. ¶14 The second requirement, timely notice, is the “linchpin” of the relation-back doctrine and “serves as the yardstick used for evaluating whether or not amending the complaint will cause the new defendant to suffer prejudice if he or she is forced to defend the case on the merits.” Id. at ¶11, 141 P.3d at 560. However, “[i]f the party to be added has a sufficient identity of interest with the original defendant, constructive notice will be imputed to the former, thereby satisfying the notice requirement for relation back where it will not be prejudicial.” Id. at ¶12, 141 P.3d at 560. The Pan Court cited numerous cases demonstrating the proposition, including Traveler’s Indemnity Co. v. United States for Use of Construction Specialities Co., 382 F.2d 103 (10th Cir. 1967) (amendment substituting a subsidiary surety company for the parent company was approved because the two companies had the same managers and directors, occupied the same office, and their activities supplemented one another); Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397 (9th Cir. 1984) (plaintiff intended to sue ship owner for personal injuries but named ship’s marketing corporation by mistake); VKK Corp. v. National Football League, 244 F.3d 114 (2nd Cir. 2001) (plaintiff intended to bring action against party with whom it had negotiated but mistakenly named a party that had not existed at the time in question); and Loveall v. Employer Health Services, Inc., 196 F.R.D. 399, 404 (D. Kan. 2000) (plaintiff intended to bring product liability action against medical supply company but mistakenly named another company as the seller). ¶15 In the present case, the first and third requirements of the Pan analysis were clearly satisfied. PTS was involved in the transaction that was the basis of the claim set forth in the petition, and it knew or should have known that, but for the mistake of identity, the action would have been brought against it: PTS operated under the name “Red Carpet Charters,” had dealt with CRC as “Red Carpet Charters,” and knew that Red Carpet Charters, Inc. was no longer operating as a business. ¶16 The second requirement, that the party to be added — i.e., PTS — received timely notice of the lawsuit, is only slightly more problematic. Indisputably, CRC did not serve
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Jeff Polzien, the registered service agent of both Red Carpet Charters, Inc., and PTS, but served Ms. Davis-Steele, a corporate officer, at the Camille Street address. In cases where a party did not receive actual notice, Pan permits the imputation of notice if there was an identity of interest between the party served and the party being added. Here, however, imputation of notice is unnecessary because PTS admits that “. . . Red Carpet Charters Inc was served with the lawsuit,” and it does not deny that it had actual knowledge of the lawsuit. Because PTS received actual and timely notice of the suit, the second requirement was met. Although PTS asserts prejudice, its “conclusory allegations that [it] will be prejudiced in [its] defense of this action by relation back of the amendments are not persuasive.” Pan v. Bane, 2006 OK 57 at ¶21, 141 P.3d at 562. ¶17 Because all three Pan requirements were met in this case, the trial court’s grant of an amendment was authorized by §2015(C). Clearly, PTS created the potential for confusion by doing business, including purchasing products and writing checks, under the trade name “Red Carpet Charters,” knowing that this name was similar to the now defunct company “Red Carpet Charters, Inc.” A more thorough inquiry by CRC may or may not have uncovered the corporate ownership. If CRC had checked the name “Red Carpet Charters” with the Oklahoma Secretary of State, it would have learned that Red Carpet Charters, Inc., was no longer in business and it might have concluded that “Red Carpet Charters” was a “d/b/a,” thereby suggesting a more thorough investigation into its corporate ownership. On the other hand, it might have concluded that Red Carpet Charters, Inc., was continuing to operate as a corporation but had failed to pay its corporate franchise tax, or that it was now operating as a sole proprietorship owned by Jeff Polzien. Thus, even if the requirements of §2015(C) had not been satisfied, the facts are sufficient to authorize amendment pursuant to traditional misnomer principles. ¶18 Finally, although the judgment in question did not originate in an Oklahoma court, §2015(C) applies with equal force to foreign judgments filed under the Uniform Enforcement of Foreign Judgments Act, 12 O.S. 2001 and Supp. 2009 §§719 et seq. Section 721 of the Act specifically provides: A copy of any foreign judgment authenticated in accordance with the applicable Act of Congress or of the statutes of this state may be filed in the office of the court clerk 2594
of any county of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the district court of any county of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a district court of this state and may be enforced or satisfied in like manner. Provided, however, that no such filed foreign judgment shall be a lien on real estate of the judgment debtor until the judgment creditor complies with the requirements of subsection B of Section 706 of this title. (Emphasis added.) CONCLUSION ¶19 We find that the trial court had authority to amend the judgment under 12 O.S. 2001 §2015(C), and its decision to allow same was not an abuse of discretion. The court’s order granting CRC’s motion to correct domesticated foreign judgment is hereby affirmed. PTS’s motion for appellate attorney fees is denied. ¶20 AFFIRMED. GOODMAN, J., concurs, and RAPP, J., not participating. 1. CRC’s reliance upon Cartwright v. Atlas Chemical Indust., Inc., 1981 OK 4, 623 P.2d 606, is misplaced. Although the name of the defendant was corrected after trial, judgment, appeal and issuance of mandate, the amendment was authorized by12 O.S.1971 §317, now repealed, that specifically permitted amendments “before or after judgment” and was decided before the 1984 adoption of 12 O.S. §2015.
2010 OK CIV APP 95 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, v. GRAND RIVER DAM AUTHORITY, Defendant/ Appellee. Case No. 107,078. May 7, 2010 APPEAL FROM THE DISTRICT COURT OF CRAIG COUNTY, OKLAHOMA HONORABLE TERRY H. McBRIDE, TRIAL JUDGE AFFIRMED Steven M. Harris, C. Matthew Bickell, DOYLE HARRIS DAVIS & HAUGHEY, Tulsa, Oklahoma, for Plaintiffs/Appellants,
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James M. Reed, John T. Richer, HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C., Tulsa, Oklahoma, for Defendant/ Appellee. John F. Fischer, Presiding Judge: ¶1 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., (Water Districts), appeal from an order of the district court dismissing their First Amended Petition. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S. Supp. 2008, ch. 15, app. 1, and the matter stands submitted without appellate briefing. Based on our review of the record and applicable law, we affirm. BACKGROUND ¶2 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 moved to dismiss pursuant to 12 O.S. Supp. 2004 §2012(B)(6), arguing that the Water Districts’ petition failed to state a claim on which relief could be granted.1 The district court’s order granting the GRDA’s motion to dismiss is the subject of the Water Districts’ appeal. STANDARD OF REVIEW ¶3 Appellate review of GRDA’s motion to dismiss is governed by the standard set forth in National Diversified Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, ¶9, 946 P.2d 662, 665-66: A motion to dismiss for failure to state a claim upon which relief can be granted may not be sustained unless it should appear without doubt that the plaintiff can prove no set of facts in support of the stated claim for relief. Id. at ¶9, 946 P.2d at 665 (footnotes omitted). Where, as here, evidentiary materials are attached to a section 2012(B)(6) motion or response, a court must convert the motion into one for summary judgment. Id., 946 P.2d at 365-66. Vol. 81 — No. 30 — 11/13/2010
A motion for summary disposition submits the controversy to the court for application of the pertinent law to uncontroverted facts. The tendered evidentiary materials will warrant summary relief if all material facts are undisputed and supportive of but a single inference that favors the movant. Id., 946 P.2d at 666. A district court’s order granting a motion for summary judgment resolves only a question of law. Id. at n.18, 946 P.2d at 666 n.18. Accordingly, we will review de novo the district court’s order, dismissing this case for failure to state a claim on which could be granted. Id. at ¶9, 946 P.2d at 666. See also Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. ANALYSIS ¶4 The dispositive issue in this appeal requires a determination of the ownership of the water sold by the GRDA to the Water Districts. If the GRDA owns the right to sell the water at issue, then the Water Districts cannot state any cognizable legal theory to support their claim, and the district court properly dismissed their petition. ¶5 The material facts in this case are not in dispute. The four water districts were organized pursuant to the Rural Water, Sewer, Gas and Solid Waste Management Districts Act, 82 O.S.2001 §§1324.1-1324.35. Peggs Water Company and Tri-B Nursery, Inc., are Oklahoma corporations. The four rural water districts and Tri-B Nursery appropriate water from Fort Gibson Reservoir or its tributaries. Peggs appropriates sub-surface water from a well located on its property. All of the water taken by the Water Districts comes from within the conservation and reclamation district (the Grand River water district) established by the State of Oklahoma to preserve, protect and distribute the waters of the Grand River. The Grand River is a non-navigable water. The Arkansas river, into which the Grand River flows, is a navigable stream. The GRDA was created in 1935. There is hereby created within the State of Oklahoma a conservation and reclamation district to be known as “Grand River Dam Authority”, hereinafter called the district, and consisting of that part of the State of Oklahoma which is included within the boundaries of the Counties of Adair, Cherokee, Craig, Delaware, Mayes, Muskogee,
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Ottawa, Osage, Pawnee, Payne, Lincoln, Logan, Tulsa, Wagoner, Sequoyah, Haskell, Latimer, Pittsburg, McIntosh, Creek, Okmulgee, Nowata, Washington and Rogers. Such district shall be, and is hereby declared to be, a governmental agency of the State of Oklahoma, body politic and corporate, with powers of government and with the authority to exercise the rights, privileges and functions hereinafter specified, including the control, storing, preservation and distribution of the waters of the Grand River and its tributaries, for irrigation, power and other useful purposes and reclamation and irrigation of arid, semiarid and other lands needing irrigation, and the conservation and development of the forests, minerals, land, water and other resources and the conservation and development of hydroelectric power and other electrical energy, from whatever source derived, of the State of Oklahoma. 82 O.S.2001 §861. The GRDA is authorized to “control, store and preserve, within the boundaries of the district, the waters of Grand River and its tributaries, for any useful purpose, and to use, distribute and sell the same within the boundaries of the district.” 82 O.S.2001 §862(a). Nonetheless, the Water Districts argue that the GRDA does not “control, store and preserve” the water they are being sold. That argument is alternatively based on an interpretation of a United States Supreme Court decision and interpretation of Oklahoma statutes. I. The Federal Law Argument ¶6 The right to water consists of two basic but not mutually exclusive interests. One is public and the other private. As to the public interest, the general rule is that the United States owns the superior right to navigable water. See e.g., U.S. v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 62, 33 S. Ct. 667, 671 (1913), in which the Supreme Court held that title to real property: is subordinate to the public right of navigation, and however helpful in protecting the owner against the acts of third parties, is of no avail against the exercise of the great and absolute power of Congress over the improvement of navigable rivers. That power of use and control comes from the power to regulate commerce between the states and with foreign nations. It includes 2596
navigation and subjects every navigable river to the control of Congress. Generally, states own the superior right to nonnavigable water. [F]ew public interests are more obvious, indisputable, and independent of particular theory than the interest of the public of a state to maintain the rivers that are wholly within it substantially undiminished, except by such drafts upon them as the guardian of the public welfare may permit for the purpose of turning them to a more perfect use. Hudson County Water Co. v. McCarter, 209 U.S. 349, 356, 28 S. Ct. 529, 531 (1908). ¶7 The private interest consists of two rights, riparian and appropriative. Franco-American Charolaise, Ltd. v. Okla. Water Res. Bd., 1990 OK 44, ¶¶14 and 23, 855 P.2d 568, 575-77.2 And, although these private interests are balanced by “relative reasonableness,” id. at ¶27, 855 P.2d at 578, Oklahoma’s “power to control unappropriated public waters is plenary. Definite nonnavigable streams are public waters. The state may either reserve to itself or grant to others its right to utilize these streams for beneficial purposes.” Oklahoma Water Res. Bd. v. Cent. Okla. Master Conservancy Dist., 1968 OK 73, ¶14, 464 P.2d 748, 753. Further, “[t]he Legislature may exercise its police power to protect the state’s water irrespective of the rights of private owners of the land most immediately concerned.” Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶23, 148 P.3d 842, 849-50. Pursuant to this plenary power, the Oklahoma Legislature clearly granted to the GRDA the right to “control, store and preserve, within the boundaries of the district, the waters of Grand River and its tributaries.” 82 O.S.2001 §862(a). The Water Districts, however, do not claim a superior riparian or appropriative right. They argue that the United States Supreme Court determined in 1960 that the GRDA does not own any rights to the Fort Gibson portion of the Grand River water district, the source of the water they appropriate from the Grand River water district. ¶8 In 1956, the GRDA sued the United States over the right to generate electric power from the Fort Gibson reservoir. The GRDA had recovered compensation when Fort Gibson dam was built for a 70-acre tract of land condemned, for the flow of the Grand River over that land, and for the costs of relocating its
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electric power transmission lines. The GRDA also claimed it had been deprived of its exclusive power to generate hydroelectric power within the Grand River water district. The Court of Claims found that the Government was liable for taking the GRDA’s water power rights, and the Government appealed. The decision on which the Water Districts rely, United States v. Grand River Dam Auth., 363 U.S. 229, 80 S. Ct. 1134 (1960), resolved the litigation. The GRDA argued that, although the federal government had the right to navigable waters, the Grand River was a non-navigable stream over which the State of Oklahoma had control. It was not disputed that Oklahoma had conferred its right to the water within the Grand River water, district, as well as the franchise right to generate electric power from that water, to the GRDA. The GRDA operates electric generating facilities at the Pensacola and Markham Ferry dams, and claimed the right to do so at Fort Gibson, the most downstream of the three dams on the Grand River. Therefore, the GRDA claimed that the federal government’s operation of the electric generating facility at Fort Gibson constituted a “taking” for which the GRDA was entitled to be compensated. ¶9 The three dam projects on the Grand River had been incorporated into the Flood Control Act by Congress in 1941. Fort Gibson was completed as “an integral part of a comprehensive plan for the regulation of navigation, the control of floods, and the production of power on the Arkansas and its tributaries.” Id. at 230, 80 S. Ct. at 1135. Although recognizing state ownership of non-navigable waters, the Supreme Court found “no constitutional reason why Congress cannot, under the commerce power treat the watersheds as a key to flood control on navigable streams and their tributaries.” Id. at 232, 80 S. Ct. at 1136. Pursuant to the Commerce Clause, U.S. Const., art. I, §8, cl. 3, the Court found this interest “superior” to any state interest. Relying on Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S. Ct. 437 (1923), for the proposition that many laws and rulings by the federal government reduce the value of property held by individuals, the Court held that the “Court of Claims erred in failing to distinguish between an appropriation of property and the frustration of an enterprise by reason of the exercise of a superior governmental power.” Grand River Dam, 363 U.S. at 236, 80 S. Ct. at 1138. Vol. 81 — No. 30 — 11/13/2010
¶10 This case does not hold, as the Water Districts argue, that the GRDA failed to prove that it had any right to the water in the Fort Gibson reservoir. In fact, the Supreme Court specifically refused to reach the issue argued by the United States: the federal government’s right to navigable water preempts state created property rights to non-navigable water. The case merely holds that the right of the GRDA to produce electricity from the Fort Gibson reservoir was inferior to the right of the federal government to do so. ¶11 As previously discussed, many and often competing interests may have legitimate claims to the same water. The fact that one interest may be superior to another does not extinguish the inferior interest; it merely establishes the priority of the superior use. Further, “the existence of unexercised federal regulatory power does not foreclose state regulation of its water resources, [or] of the uses of water within the state ....” Sporhase v. Nebraska, 458 U.S. 941, 954, 102 S. Ct. 3456, 3463 (1982) (invalidating a state statute restricting the use of groundwater outside the state). Mutual, complimentary use of water is contemplated by Oklahoma law. Franco-American, 1990 OK 44 at ¶14, 855 P.2d at 57576. It is also contemplated by federal law. In Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S (18 How.) 421 (1855), the Supreme Court held that a bridge over the Ohio river, constructed pursuant to a Virginia statute, created an obstruction to navigation that should be removed. Before the decree was executed, Congress declared the bridge a lawful structure and the Court refused to order removal of the bridge. Although it still may be an obstruction in fact, [it] is not so in contemplation of law. We have already said, and the principle is undoubted, that the act of the legislature of Virginia conferred full authority to erect and maintain the bridge, subject to the exercise of the power of Congress to regulate the navigation of the river. That body having, in the exercise of this power, regulated the navigation consistent with its preservation and continuation, the authority to maintain it would seem to be complete. That authority combines the concurrent powers of both governments, state and Federal, which, if not sufficient, certainly none can be found in our system of government.
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Id. at 430. Consequently, the ruling in United States v. Grand River Dam Authority cannot be extended to support the Water Districts’ position that the government’s right to build a flood control dam and produce electricity at Fort Gibson precludes any other complimentary use of the water by the GRDA, or preempts all other rights previously granted the GRDA by the State of Oklahoma to the water in the Fort Gibson reservoir, its streams, tributaries and associated groundwater. ¶12 Finally, the Water Districts’ reliance on 82 O.S.2001 §105.21 does not advance their argument. That statute provides, in part: The owner of any works for the storage, diversion or carriage of water, which contain water in excess of his needs for irrigation or other beneficial use for which it has been appropriated, shall be required to deliver such surplus, at reasonable rates for storage or carriage, or both, as the case may be, to the parties entitled to the use of the water for beneficial purposes. ... ¶13 The Water Districts argue that section 105.21 conveys to the United States ownership of, or at least the right to sell, water in the Fort Gibson reservoir, because the federal government owns the Fort Gibson dam. No other authority is cited for this proposition and no reported case has interpreted this statute. Nonetheless, the Water Districts’ construction is irreconcilable with other provisions in the Waters and Water Rights Act. Section 105.9 requires that any “federal governmental agency ... intending to acquire the right to the beneficial use of any water shall . . . before taking the same from any constructed works, make an application to the Board ....” Section 105.29 requires officers of the United States “authorized by law to construct works for the utilization of waters within the state” to notify the Water Resources Board of their intent to utilize specified water within the State. The Board may approve, reduce or reject the United States’ intended utilization. The fact that the United States has the right to build a dam for flood control and hydroelectric generating purposes does not establish the federal government’s ownership of the water affected. As previously discussed, the fundamental right to the water of the Grand River, including that water within the Fort Gibson reservoir, belongs to the State of Oklahoma and has been transferred to the GRDA. The Water Districts there2598
fore fail to establish that the United States has the right to sell the water at issue. II. The State Law Argument ¶14 The Water Districts’ State law argument relies on two statutes. The first, 82 O.S.2001 §887, provides: “[T]he waters of Grand River in Oklahoma and the Pensacola and Markham Ferry Reservoirs, located thereon, be and are hereby determined and declared to be nonnavigable and waters of the State of Oklahoma.” Because this statute was enacted in 1963, thirteen years after the construction of the Fort Gibson dam, the Water Districts conclude that the Legislature, by its omission of any reference to the Fort Gibson reservoir, intended to exclude waters below the Markham Ferry dam from the authority of the GRDA. The second statute, 82 O.S.2001 §890, provides: “The Grand River Dam Authority shall have no control over that portion of the Grand River downstream from Fort Gibson Dam to the point of confluence of the waters of the Grand River with those of the Arkansas River.” With the specific exclusion of water between the Fort Gibson dam and the Arkansas river, the Water Districts conclude that the Legislature also intended to exclude the water from which the excluded waters were derived, in their view, the Fort Gibson reservoir. ¶15 Other than these statutory citations, the Water Districts cite no authority to support their construction of these statutes. Nonetheless, principles of statutory construction are generally accepted. The determination of legislative intent controls statutory interpretation. The intent is ascertained from the whole act based on its general purpose and objective. In construing statutes, relevant provisions must be considered together whenever possible to give full force and effect to each. To ascertain intent, we look to the language of the pertinent statute. We presume that the Legislature intends what it expresses. Except when a contrary intention plainly appears, terms are given their plain and ordinary meaning. Oklahoma Ass’n For Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶5, 901 P.2d 800, 803 (footnotes omitted). With respect to the Water Districts’ section 887 argument, it is true, as a general rule, that the failure to include an item evidences an intent to omit the item. “[T]he general rule is that nothing may be read
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into a statute which was not within the manifest intention of the legislature as gathered from the language of the act.” Stemmons, Inc. v. Universal C.I.T. Credit Corp., 1956 OK 221 ¶19, 301 P.2d 212, 216. See also McSorley v. Hertz Corp., 1994 OK 120, ¶19, 885 P.2d 1343, 1346 (legislative omission is evidence of intent not to cover the omitted subject). Nonetheless, “[w]hen construing statutes, all relevant provisions must be considered together, where possible, so that force and meaning is given to each.” Dana P. v. State, 1982 OK 140, ¶23, 656 P.2d 253, 258. Further, “in the construction of statutes to determine legislative intent, the entire act may be considered, together with all other enactments on the same subject, and when the intention of the Legislature can be gathered from the entire statute, words may be modified, altered, or supplied to give the statute the force and effect intended.” Charlson v. State ex rel. Dep’t of Pub. Safety, 2005 OK 83, ¶10, 125 P.3d 672, 675. ¶16 First, the Water Districts’ construction of section 890 is inconsistent with its interpretation of section 887. The water flowing out of Fort Gibson reservoir and excluded from GRDA authority pursuant to section 890 flowed into that reservoir from waters included within the Grand River water district, and waters that the Water Districts concede are specifically included within the GRDA’s authority pursuant to section 887. Although the authority of the GRDA over water below the Fort Gibson dam may be limited, the non-navigable nature of that water does not change until it reaches the Arkansas River. ¶17 Second, the Water Districts’ construction of section 887 is unacceptably narrow. The designation of particular waters, the Pensacola and Markham Ferry reservoirs, as non-navigable does not require the conclusion that all reservoirs not designated are navigable. This is particularly true when the statute begins with the designation of the Grand River as nonnavigable. The State’s ownership depends on the non-navigable nature of the water, not the State’s articulation of that fact. ¶18 Third, the Water Districts’ construction of section 887 fails to reconcile the authority granted to the GRDA pursuant to sections 861 and 862: There is hereby created within the State of Oklahoma a conservation and reclamation district to be known as “Grand River Dam Vol. 81 — No. 30 — 11/13/2010
Authority” . . . consisting of that part of the State of Oklahoma which is included within the boundaries of the Counties of Adair, Cherokee, Craig, Delaware, Mayes, Muskogee, Ottawa, Osage, Pawnee, Payne, Lincoln, Logan, Tulsa, Wagoner, Sequoyah, Haskell, Latimer, Pittsburg, McIntosh, Creek, Okmulgee, Nowata, Washington and Rogers. Within that district, the GRDA has the right to “the control, storing, preservation and distribution of the waters of the Grand River and its tributaries.” 82 O.S.2001 §861. It is undisputed that the Fort Gibson reservoir is within the Grand River conservation and reclamation district. The statute creating the GRDA and defining its functions is “an express appropriation by the state of the waters in Grand River to be applied to the uses therein stated, and to place in its said agency exclusive authority to develop the stream in the manner therein provided.” Grand-Hydro v. Grand River Dam Auth., 1943 OK 158, ¶18, 139 P.2d 798, 801. There is only one exception to the authority granted the GRDA to control the waters of the Grand River; “any municipal corporation within the area included within the jurisdiction of the said Grand River Dam Authority shall be entitled to take water from the Grand River and any of its tributaries in any quantities that may be needed by such municipal corporation.” 82 O.S. Supp. 2008 §862(a). None of the Water Districts is a municipal corporation, and we will not “read into” the statute an exception the Legislature did not create. ¶19 Finally, the GRDA has been charging, and the Water Districts have been paying the GRDA, for the water at issue for a substantial period of time even before the Water Districts began their legal challenges to the GRDA’s right to do so. It is a well settled rule that the contemporaneous construction of a statute by those charged with its execution and application, especially when it has long prevailed, while not controlling, is entitled to great weight and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous. The courts are especially reluctant to overturn a long standing executive or departmental construction where great interests have grown up under it and will be disturbed or destroyed by the announcement of a new rule, or where parties who
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have contracted with the government upon the faith of such construction will be prejudiced. Oral Roberts Univ. v. Oklahoma Tax Comm’n, 1985 OK 97, ¶10, 714 P.2d 1013, 1015 (quoting McCain v. State Election Bd., 1930 OK 323, ¶16, 289 P. 759, 762-63). We find no reason to overturn the GRDA’s construction of these statutes. CONCLUSION ¶20 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. Included among those rights is the right to sell water to the Water Districts. No superior right held by the United States affects or supercedes 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. The Order of the district court dismissing that petition is affirmed. ¶21 AFFIRMED. WISEMAN, C.J., and BARNES, J., concur. 1. The GRDA also asserted 12 O.S. Supp. 2004 §2012(b)(7), failure to join an indispensable party, as a basis for its motion. That issue is not pertinent to our disposition of this appeal. 2. Cf., Oklahoma’s Waters and Water Rights Act: “It is the intent of the Oklahoma Legislature that the purpose of Section 105.1 through Section 105.32 of this title is to provide for stability and certainty in water rights by replacing the incompatible dual systems of riparian and appropriative water rights which governed the use of water from definite streams in Oklahoma prior to June 10, 1963, with an appropriation system of regulation requiring the beneficial use of water and providing that priority in time shall give the better right. These sections are intended to provide that riparian landowners may use water for domestic uses and store water in definite streams and that appropriations shall not interfere with such domestic uses, to recognize through administrative adjudications all uses, riparian and appropriative, existing prior to June 10, 1963, and to extinguish future claims to use water, except for domestic use, based only on ownership of riparian lands.” 82 O.S.2001 §105.1A.
2010 OK CIV APP 102 J.D.D. & J.R.F., Appellants, vs. STATE OF OKLAHOMA, Appellee. Case No. 108,031. September 3, 2010 APPEAL FROM THE DISTRICT COURT OF CARTER COUNTY, OKLAHOMA HONORABLE THOMAS S. WALKER, JUDGE AFFIRMED AND REMANDED S. Brent Bahner, Ardmore, Oklahoma, for Appellants, Heather J. Russell Cooper, Kimberly S.T. Reding, ASSISTANT DISTRICT ATTORNEYS, Ardmore, Oklahoma, for Appellee. Robert Dick Bell, Vice-Chief Judge:
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¶1 This appeal is from a judgment terminating the parental rights of Victoria Fundora (Mother) to her minor children, J.D.D. and J.R.F. The parental rights of the natural fathers were also terminated. Mother and the fathers do not appeal. The minor children appeal claiming the trial court’s termination order is not supported by clear and convincing evidence. Children also contend the trial court denied them effective assistance of counsel when it restricted their counsel’s participation in the trial. For the reasons discussed hereinafter, we affirm the trial court’s order terminating Mother’s parental rights, and remand with instructions to correct certain deficiencies in the order. ¶2 J.D.D. was born on June 9, 2006. J.D.D. was placed with Mother, who was also a deprived child, in voluntary foster care placements designed to assist young mothers in developing skills necessary to care for a child. State filed a petition seeking the adjudication of J.D.D. as deprived on September 26, 2007, when Mother was expelled from her placement for failing to meet minimum standards. State’s petition alleged J.D.D. did not have proper parental care or guardianship due to Mother’s status as a deprived child, homelessness and lack of maturity. ¶3 Prior to the adjudication hearing, the court appointed an attorney for the child. Mother was also represented by counsel. After a non-jury trial, the court adjudicated J.D.D. as deprived and entered a disposition order. Therein, Mother was ordered to (a) provide a safe, stable, and hygienic home with furniture and appliances suitable to meet the basic needs of the child; (b) demonstrate the ability to provide a stable family environment that combines the appropriate support, nutrition, education, protection and nurturing; (c) complete a parenting skills training course approved by the Department of Human Services (DHS) and demonstrate that she can put such learned skills into practice; (d) maintain employment sufficient to meet her needs and the needs of the child; and (e) obtain her high school diploma or its equivalent. In December 2008, State filed an application to terminate Mother’s parental rights to J.D.D. State dismissed the application in January 2009, to allow Mother additional time to make substantial progress in correcting the conditions which led to J.D.D.’s adjudication as deprived.
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¶4 On June 16, 2009, Mother gave birth to J.R.F. The father of the child was previously arrested in December 2008 during a drug bust for trafficking in narcotics and faced numerous drug charges. Mother was present at the drug bust. DHS was granted emergency custody of J.R.F. at birth due to Mother’s failure to correct conditions which caused J.D.D.’s deprived adjudication. J.R.F. was adjudicated deprived July 2009. On August 13, 2009, the court ordered Mother to comply with the standards of conduct set forth by the court in its previous order, to pay child support and complete a DHS approved counseling course designed to teach her the im pact of violence on children and how to eliminate violence from relationships. Mother was also ordered to demonstrate that she can practice what she learned. ¶5 On November 20, 2009, State filed applications to terminate Mother’s parental rights (and the rights of the two fathers) to both children pursuant to 10A O.S. Supp. 2009 §1-4904(B)(5). At a pretrial in-camera hearing, the trial court informed the parties of the Children’s attorney role at trial. The court stated: [B]ased on the statute, the lawyer for the child cannot express his or her own personal opinion or even professional opinion as to what’s in the best interest of his or her client. That is no longer the role of the lawyer . . . In termination of parental rights where the child has not directed his or her lawyer to advocate a position, I will not allow the attorney for the child to participate in the jury selection nor to participate in argument to the jury . . . Questioning of witnesses will be limited to . . . being neutral and supplementing the questions of counsel for the State and counsel for the parent after both . . . have examined and cross-examined. The court explained the limited role of Children’s attorney to the jury. Notwithstanding the trial court’s directive and the fact that Children were not of a sufficient age to direct their attorney to advocate a position, Children’s attorney submitted proposed jury instructions, participated in sidebars, objected to State’s opening statement and advocated against terminating Mother’s parental rights. ¶6 At jury trial, State presented the testimony of two child welfare permanency planners and that of a court appointed special advocate (CASA). Mother also testified. Leslie Parson, the current child welfare permanency planner, Vol. 81 — No. 30 — 11/13/2010
testified Mother failed to provide a safe and stable home for the children. Mother’s home lacked electricity and food and she failed to maintain employment. Ms. Parson discussed the services offered to Mother for transportation to visitation and meetings. Notwithstanding such offers, Mother did not complete the counseling and parenting classes. Ms. Parson opined the Children required financial, physical and emotional support which Mother is not capable of providing. Ms. Parson stated the Children are healthy and developmentally on target in their current placement. She opined termination of Mother’s parental rights is in the best interest of Children because the Children need permanency. ¶7 Kisha Burkhalter, a child welfare specialist and the previous permanency planner, testified that despite her best efforts in providing resources and in counseling, talking, advising and cajoling Mother, she could not get Mother to comply with the court order. Ms. Burkhalter stated when she was last assigned to the case, her recommendation was termination of Mother’s parental rights because such termination would be in the Children’s best interests. Dianne Shepard, the CASA volunteer, testified that based on her knowledge of the case, training and experience, termination of Mother’s parental rights would be in the Children’s best interest. ¶8 At the conclusion of trial, the jury unanimously found, by clear and convincing evidence, that Mother failed to correct the deficient conditions notwithstanding that she was given more than three months to correct said conditions. The jury also found, by clear and convincing evidence, that termination of Mother’s parental rights is in Children’s best interests. The trial court entered its order terminating Mother’s parental rights. Children now appeal.1 ¶9 On appeal, Children claim their attorney was erroneously prevented from participating in jury selection, opening and closing statements, from presenting his own witnesses and from moving for dismissal, directed verdict and judgment notwithstanding the verdict. Children argue this limitation and the court’s comments to the jury prior to and at the conclusion of jury selection rendered their counsel ineffective. State counters the trial court’s actions were authorized by statute and none of the restrictions placed on Mr. Bahner inhibited his ability to protect Children’s interests. State further contends the trial court properly limit-
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ed Mr. Bahner’s participation because his objective, at trial, was to advocate on behalf of Mother notwithstanding that she was represented by her own counsel. ¶10 In parental rights termination cases, the children are statutorily entitled to be represented by independent counsel. However, such independent counsel’s participation in the proceeding is not unlimited. Title 10A O.S. Supp. 2009 §1-4-306(A)(2)(c) defines the role of such independent counsel as follows: The attorney shall represent the child and any expressed interests of the child. The attorney shall make such further inquiry as the attorney deems necessary to ascertain the facts, to interview witnesses, examine and cross-examine witnesses, make recommendations to the court and participate further in the proceedings to the degree appropriate for adequately representing the interests of the child. ¶11 Cooper v. State, 1996 OK CR 38, 922 P.2d 1217, considered similar language in 21 O.S. Supp. 1992 §846(G)(1).2 This statute was renumbered, as modified, in the Children’s Code, at 10 O.S. §§7102 to 7105 by Laws 1995, c. 353, §20, eff. Nov. 1, 1995. Thereafter, §§7102 to 7105 were repealed by Laws 2009, c. 233, §195, emerg. eff. May 21, 2009. However, the relevant language at issue was added to the Children’s Code by Laws 1998, c. 421, §12, emerg. eff. June 11, 1998, at 10 O.S. §7003-3.7(A)(2)(c). Section 7003-3.7 was renumbered and amended as 10A O.S. Supp. 2009 §1-4-306, by Laws 2009, c. 233, §§26, 234, emerg. eff. May 21, 2009. ¶12 In Cooper, the child’s counsel participated in voir dire of the jury and all pre-trial hearings and motions. Said counsel interposed objections, examined witnesses, bolstered the alleged victim’s credibility, rehabilitated witnesses after impeachment, corroborated the child’s story and impeached the defendant. On the defendant’s appeal to the Oklahoma Court of Criminal Appeals, the Court held the defendant was denied a fair trial because the child’s appointed counsel exceeded her statutory authority to investigate, examine, cross-examine and make recommendations to court for the child’s best interests by participating in the prosecution to defendant’s detriment. The court interpreted the pertinent language in §846(G)(1) to mean the child’s advocate may only participate in the criminal trial when such 2602
participation promotes the child’s best interests. Cooper explained: To comply with due process, the child advocate may not, however, take on an adversarial role against the accused despite the fact that convicting the accused may be in the child’s best interests. Even though section 846(G)(1) allows the child advocate to examine and cross-examine the witnesses at the criminal trial of the accused and otherwise participate in the proceedings, we believe it will be in the minority of cases, rather than the majority, that the child advocate will readily participate. It is difficult to conceive of many instances when the child advocate can participate in the examination of the witnesses and other parts of the trial without becoming a second advocate against the accused. Id. at ¶6, 922 P.2d at 1218. ¶13 Although Cooper dealt with a child’s advocate who sided with the district attorney, and the instant termination case involves an advocate for the Children who decidedly sided with the parent, the analysis in Cooper is still applicable. The pertinent language at issue in Cooper is the language at issue in this case. Consequently, we hold the trial court did not err by limiting Mr. Bahner’s participation in the proceeding to the degree authorized by §14-306(A)(2)(c). Had Mr. Bahner been permitted to proceed as he desired, he would certainly have exceeded his statutory authority. We further reject Children’s attempt to challenge the adequacy of Mother’s defense. Mother’s attorney was actively involved in this case and fully participated in the trial. Furthermore, Mother does not appeal the termination of her parental rights. ¶14 Children next argue insufficient evidence supports the trial court’s order terminating Mother’s parental rights and therefore, the court erred in overruling Mother’s demurrer to the evidence. In a parental rights termination proceeding, the court shall not terminate the rights of a parent unless one or more of the statutory grounds for termination of parental rights at 10A O.S. Supp. 2009 §1-4904 has been proven by “clear and convincing” evidence. In re M.C.M., 2008 OK CIV APP 29, ¶11, 180 P.3d 688, 690. On appeal, we review to determine whether the trial court’s judgment is supported by the requisite clear
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and convincing evidence. In the Matter of S. B.C., 2002 OK 83, 64 P.3d 1080. ¶15 After reviewing the record, we find clear and convincing evidence supports the jury’s factual determination that Mother failed to correct the conditions that lead to the deprived children adjudication. Although Mother obtained her GED and lived in a rent-free apartment, she did not maintain a working refrigerator or have electricity during the winter months. Mother worked at many part-time jobs, some of which she quit and others from which she was fired for stealing, but she did not maintain consistent employment. Mother admitted she had not paid child support. Mother also admitted she never attended counseling or completed the parenting course. Mother testified she lived with and conceived a child with someone she knew to be a drug dealer and who physically assaulted her, she was present at a drug bust, she failed to comply with requirements necessary to ensure her state food stamp benefits would continue, she allowed a runaway to stay in her home, she was arrested for shoplifting, she allowed people to use drugs in her home and she participated in at least three street fights, one while eight months pregnant. This was clear and convincing evidence that Mother chose to disregard and failed to correct the condition that she provide Children with a stable family environment and a suitable home. ¶16 We further find the clear and convincing evidence supports the jury’s determination that termination of Mother’s parental rights is in the best interests of the Children. See §1-4904(A)(2). The DHS permanency planners testified that termination of Mother’s parental rights would be in the Children’s best interests because the Children are developing properly, they have bonded with their foster family and they deserve permanency. We recognize Children’s claim that State’s witnesses lacked the specific education, training, and knowledge to render an opinion regarding the Children’s best interests. However, in an Oklahoma parental rights termination proceeding, there is no requirement for expert witness testimony to prove the best interests of the children. In the Matter of K.L.H., 1993 OK CIV APP 127, ¶20, 858 P.2d 1296, 1299. Consequently, we reject Children’s assertion that expert witness testimony, alone, qualifies as evidence of the Children’s best interests.
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¶17 We conclude State’s evidence, coupled with Mother’s own admissions, provided clear and convincing evidence in support of the jury’s conclusion that Mother’s parental rights should be terminated under §1-4-904(B)(5) and that it was in Children’s best interests to terminate Mother’s parental rights. The trial court’s order terminating Mother’s parental rights is affirmed. ¶18 Notwithstanding that we affirm the order terminating Mother’s parental rights to the Children, we find the trial court’s order is flawed. Although the order references the Children’s dates of birth, it fails to actually recite the Children’s dates of birth. The order also fails to contain certain findings required by 10A O.S. Supp. 2009 §1-4-906(B)(2). This section provides an order terminating parental rights shall indicate the duty of the parent to support his or her minor child will not be terminated unless the child is subsequently adopted as provided by §1-4-906(B)(3). Accordingly, we remand the case with instructions to the trial court to take such actions as are necessary to correct these deficiencies in the final order. The court’s judgment is otherwise affirmed in all respects. ¶19 AFFIRMED AND REMANDED. JOPLIN, P.J., and MITCHELL, J., concur. 1. A child is a party to a proceeding to sever the child’s relationship to his or her parents. Matter of P.E.K., 1994 OK CIV APP 56, ¶1, 875 P.2d 451, 452 n.1. 2. Section 846(G)(1) mandated the appointment of an attorney to appear for and represent a child who is the alleged subject of child abuse. This section charged the attorney to represent the child’s best interests and to “make such further investigation as the attorney deems necessary to ascertain the facts, to interview witnesses, examine and cross-examine witnesses at the preliminary hearing and trial, make recommendations to the court and participate further in the proceedings to the degree appropriate for adequately representing the child.”
2010 OK CIV APP 104 IN RE THE MARRIAGE OF DOAN-UYEN THI LE, Petitioner/Appellee, vs. THANG Q. NGUYEN, Respondent/Appellant. Case No. 105,919. January 22, 2010 APPEAL FROM THE DISTRICT COURT OF WAGONER COUNTY, OKLAHOMA HONORABLE DAVID NELSON, JUDGE AFFIRMED IN PART, REVERSED IN PART AND REMANDED M. Jean Holmes and Ronald M. Fraley, Tulsa, Oklahoma, for Appellant,
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Shelton L. Benedict, Tulsa, Oklahoma, for Appellee..
relocation motion and denying all other motions, Father appeals.
Carol M. Hansen, Presiding Judge:
¶6 We will not disturb the trial court’s custody decision unless we find an abuse of discretion or that the decision is clearly contrary to the weight of the evidence. Daniel v. Daniel, 2001 OK 117, ¶21, 42 P.3d 863, 871. The trial court’s decision which allowed Mother’s request to relocate with the children to New York is also reviewed by the Daniel standard. Moore v. Moore, 2009 OK CIV APP 27, ¶7, 209 P.3d 318, 320 (citing Daniel v. Daniel, 42 P.3d 863, 871). The burden is upon Father, as the appealing party, to demonstrate the trial court’s decision was erroneous and contrary to the children’s best interests. Daniel, 42 P.3d at 871.
¶1 In this post-divorce proceeding, Appellant/Father, Thang Q. Nguyen (Father), seeks review of the trial court’s order [1] granting the relocation request of Appellee/Mother, DoanUyen Thi Le (Mother), allowing her to move with the couple’s two children from Oklahoma to New York, and [2] denying the requests of both Mother and Father that joint custody be terminated. ¶2 Mother and Father were divorced in September 2005. The couple had two children during the marriage, a son born in 1999 and a daughter born in 2000. The consent divorce decree implemented the Joint Child Custody Plan submitted by the parties, with Mother serving as the primary custodial parent, while Father exercised generous visitation, seeing his children as much as four times per week. ¶3 On August 23, 2007, Mother filed a notice of relocation due to her engagement and planned second marriage to a man living in New York. Mother requested to move with the children to New York, which would necessitate changes in the existing visitation format. Father filed his objection to the relocation on September 4, 2007. ¶4 Shortly thereafter, Father filed a motion to terminate joint custody and to award him sole custody of the children, which would allow the children to remain with him in Oklahoma. Mother responded with her own motion to terminate joint custody, citing several instances of the parents’ failure to get along and communicate. Mother’s second marriage took place on November 19, 2007, though neither she nor the children had moved at the time of the hearing. ¶5 On February 15, 2008, the trial court held a hearing on Mother’s relocation notice and the corresponding objections and responsive motions to terminate joint custody. The court heard testimony from the parties, as well as several other witnesses, including the children’s soccer coach and aunt. The trial court granted Mother’s motion to relocate, denied both parents’ requests for termination of the joint custody arrangement, and set out Father’s visitation. The trial court’s written order of May 1, 2008 memorialized the ruling the court made at the conclusion of the February 15, 2008 hearing. From this order granting Mother’s 2604
¶7 As a procedural matter, Father contends the trial court considered the issues of this case in an improper order. He claims the court should not have made the decision about Mother’s relocation notice prior to terminating the joint custody arrangement and awarding him custody of the two children. ¶8 Neither 43 O.S. 2001 § 109, which provides the authority for joint custody, nor 43 O.S. Supp. 2002 § 112.3, which provides for relocation notification and approval, expressly directs the trial court in terms of which issue to address first. Nor does Father offer legal authority dictating custody decisions must precede relocation decisions. Section 112.3(I), which provides, “[a] proposed relocation of a child may be a factor in considering a change of custody,” seems to indicate the two issues should be considered in conjunction with one another. The Court of Civil Appeals, in Moore v. Moore, 2009 OK CIV APP 27, 209 P.3d 318, reached a similar conclusion. There, the appellant argued the relocation issue should be tried first pursuant to § 112.3(K), but the Court, finding no authority for that position, held there was no abuse of discretion in joining the issues for trial. ¶9 In any event, there is nothing in the trial court’s decision to suggest the order in which the court considered the two issues. While the court, speaking from the bench, first granted the relocation motion, and then denied the parties’ motions to terminate joint custody, we cannot assume anything about the order in which the court cognitively considered the two matters. We further note there is nothing in the record indicating Father requested the termination of joint custody motions be considered
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separately or in any particular order, nor a request or objection asking for clarification of the order in which the court considered the issues. We find no merit in this proposition of error.
c. the feasibility of preserving the relationship between the nonrelocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties,
¶10 Father also asserts granting the relocation request should be reversed and remanded because he should have been awarded full custody. This is essentially a best interests argument on Father’s part. Under §112.3(K) — “The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child.”
d. the child’s preference, taking into consideration the age and maturity of the child,
¶11 Father does not claim Mother’s move is made in bad faith. Mother’s new husband lives and works in New York. There was no evidence presented to indicate there was any effort on Mother’s part to remove the children to New York for any purpose other than to be with her husband. There was even some evidence Mother and her new spouse explored the possibility of living in Oklahoma, but the husband’s opportunities and employment were better served by his staying in New York, where he had existing employment and a home. ¶12 With Mother making a prima facie case relocation was in good faith, the burden of proof then shifted to Father to show the move with Mother to New York would not be in the children’s best interests. The court has a statutory non-exhaustive list of considerations to address in determining whether relocation serves the children’s best interests: 1. In reaching its decision regarding a proposed relocation, the court shall consider the following factors: a. the nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child’s life, b. the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child, Vol. 81 — No. 30 — 11/13/2010
e. whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating person, f. whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity, g. the reasons of each person for seeking or opposing the relocation, and h. any other factor affecting the best interest of the child. 43 O.S. Supp. 2002 § 112.3(J). ¶13 While both parents have a strong and nurturing influence on these children, the record revealed Mother was the primary custodial parent. The children spent the majority of their overnights with Mother and the record further revealed Mother was responsible for the majority of the mundane, but essential, tasks of day-to-day parenting, taking the children to the doctor, getting them ready for bed, helping them with school. Father’s role in his children’s lives is significant, as he addressed so many of the extracurricular needs of his children, especially with regard to sports. Father also spent considerable time with the children, often picked them up from school and provided tutoring. It is precisely the positive and nurturing influence given by both parents that make a case such as this so difficult, a fact the court acknowledged in rendering its decision. ¶14 The nature and quality of the children’s relationship with Mother weighed in favor of her continued role as their primary custodial parent. The children continued to grow and thrive under her influence and there was no indication this would cease to be the case after her move. There was evidence in the record Mother attempted to make the move as smooth
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as possible, even putting off moving until the children’s school year concluded. Evidence was also presented showing that much of the Oklahoma based family support upon which both Mother and Father relied was in transition, with the children’s maternal aunt and grandmother moving to Texas and the grandmother’s deteriorating health. The support system for a single parent in Oklahoma was to be much more fragile than either parent had ever known, which may well have weighed in favor of the children moving with the parent most familiar with their day-to-day care. ¶15 While recognizing the expense of travel between Oklahoma and New York, the trial court considered and formulated a visitation plan with an emphasis on Father’s visitation being longer in duration, though less frequent, in an effort to continue fostering the close and valuable relationship the children have with their Father.1 The trial court’s order specifically noted Father did not meet his shifting burden, to demonstrate relocation with Mother was not in the children’s best interests. In considering the factors outlined in § 112.3(J), we do not find the trial court abused its discretion or made a decision contrary to the weight of the evidence in allowing Mother to relocate. In so holding, we in turn recognize the trial court’s determination could be obviated by the trial court’s determination regarding custody on remand. ¶16 With regard to the trial court’s denial of motions by both parties to end joint custody, we are persuaded by Father’s contention the trial court erred. As we noted above, joint custody is governed by 43 O.S. 2001 §109, which provides in subsections F and G2 for modification or termination of joint custody upon the request of one or both parents, or whenever the court determines the best interests of the children dictate modification or termination of the joint custody. In general, the best interests of the children must be a paramount consideration when determining their custody and the parents’ rights to visitation. Daniel, 42 P.3d at 871; 43 O.S. 2001 § 109(A). ¶17 Father asserts the court erred in failing to terminate joint custody. He also argues he should have been awarded sole custody of the children. Father maintains there is no evidence to support these decisions and the trial court therefore erred in allowing joint custody to continue. In support of this assertion, Father points to several factors: [a] the mutual requests for termination of joint custody, [b] the evi2606
dence he and Mother were not cooperating effectively in implementing joint custody, and [c] the extreme difficulties in shared-parenting that would come with the move to New York. ¶18 At trial, both parties offered examples of distinct episodes during which they failed to effectively communicate and cooperate in parenting their two children. Mother presented evidence that Father failed to inform her of soccer practice and game schedules so that she was essentially cut out of the children’s sporting activities, including tennis and karate. There was also evidence Mother called the police after Father misinterpreted a text message regarding certain dates he was supposed to keep the children while Mother was visiting her fiancé in New York. Father apparently understood he would have the children over the ensuing week, while Mother meant to convey only that Father would have the children a couple of extra days after his regularly scheduled weekend visitation. Mother also complained Father transferred the children to a different school without her knowledge or consent, to which Father responded that the two had discussed the matter and it was not done without Mother’s knowledge. ¶19 For his part, Father presented evidence Mother failed to inform him when she was laid off and when the children did not have health insurance for a considerable period of time. During those times Mother continued to collect from Father support payments awarded specifically for payment of insurance and employment-related child care expenses.3 Both parents also complained the other interfered with their respective communications with the children. In sum, there was considerable evidence parents failed to get along with regard to parenting issues. ¶20 However, in our review of a custody decision, we are obliged to consider all the evidence, including that which may indicate joint custody has had a positive impact on the children. There was also evidence parents’ failure to communicate and cooperatively parent had manifested only recently, as the court had not been called to intervene in the joint custody arrangement until Mother’s relocation became an issue. There was further evidence the children were doing well with the input and care of both parents. So, despite the parents’ communications shortcomings, up to a point in time they seem to have effectively parented and allowed each other access to the children
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without apparently infecting the children with their less-than-ideal relationship. The record also demonstrated that while Mother was perhaps not as inclined or involved in sports or religious education for the children as was Father, she was reasonably supportive of Father’s efforts to involve the children in sports and church, despite the fact she was not always included in these activities. ¶21 As we have discussed, termination of joint custody is governed by § 109(G)4. As Mother’s appellate brief points out, the language of §109(G) guiding the trial court on termination of joint custody is permissive, using the word “may” instead of a word such as “shall” or “must.” Pierce v. Pierce, 2001 OK 97, 39 P.3d 791. The statute makes clear the trial court is not required to terminate joint custody upon the request of both parents and that the child’s best interests are the paramount concern. However, when the evidence is that joint custody is not working, and is not serving the children’s best interests, “a material and substantive change of circumstance has occurred and the joint custody arrangement must be changed.” Daniel, 42 P.3d at 870, ¶20. “Joint custody will not succeed without the cooperation of the parties.” Id. ¶22 In arguing the trial court was correct in denying the parties’ respective motions for termination of joint custody, Mother relies on Kilpatrick v. Kilpatrick, 2008 OK CIV APP 94, ¶13, 188 P.3d 406, 409, where the trial court denied the requests of both parents that joint custody be terminated. The Court of Civil Appeals affirmed the trial court’s denial, holding: 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. Anderson v. Anderson, 1990 OK CIV APP 23, 791 P.2d 116. A party’s opposition to joint custody indicates his or her lack of willingness to cooperate, and “[t]o force joint custody on an unwilling parent should give a trial court pause.” Fast v. Fast, 1989 OK CIV APP 31, ¶4, 787 P.2d 1288, 1290. Nevertheless, consideration must also be given to the positive effect, if any, that a joint custody plan has had on a child. Section 109(G) does not require termination of joint custody merely because one or both parents requests it; it provides that a trial court Vol. 81 — No. 30 — 11/13/2010
“may” terminate joint custody in such event. Ultimately, custodial decisions, even those involving termination of joint custody, are dependent upon the best interests of the child. Only when “joint custody is not working and it is not serving the child’s best interests” is termination a “must.” Daniel, 42 P.3d at 870, ¶20. ¶23 We are not unmindful that, despite significant cooperation and communication issues, Mother and Father seem to have managed to parent well-adjusted, academically-sound, happy and active children in the two years following their divorce. That being said, we are unpersuaded by the Kilpatrick Court’s reasoning under the facts here and find that case to be distinguishable. ¶24 We first note the trial court in Kilpatrick “reluctantly determined that a modified joint custody plan was the best of imperfect alternatives.” In making that determination, the trial court in Kilpatrick had the advantage of considerable testimony from several experts regarding the parties ability to co-parent. Here, the evidence was received from the parties, relatives and lay witnesses. The expert testimony in Kilpatrick was that joint custody could work “using a strong and experienced parenting coordinator.” Here, the order appointing a parenting coordinator had expired and there is no indication further use of a parenting coordinator was contemplated. Further, there was evidence the parties had at times not followed the parenting coordinator’s determinations or chose not to consult the coordinator with problems because of the expense. ¶25 Here, the distance of separation will be a more complicating factor than it was in Kilpatrick. There, the mother lived in Northwest Arkansas, and the father lived in Northeast Oklahoma, which is reasonably proximate for driving purposes. In this matter, the distance will be a major impediment to the type of coparenting which has, to this point, resulted in well-adjusted children. The evidence was that Father was intimately involved in the children’s everyday life. Even with the significant periods of custody granted Father by the trial court, there is no evidence joint custody will be as successful in the future. To the contrary, the evidence is that Mother and Father will likely continue to have problems with cooperation and communication, with no intermediaries to facilitate compromise and accommodation. Under
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these circumstances, it is also likely it will be the children who suffer the consequences.
parents ability to co-parent is not supported by this record.
¶26 While § 109(G) gives trial courts discretion in joint custody determinations, “[t]o force joint custody on an unwilling parent should give a trial court pause.” Fast v. Fast, 787 P.2d at 1290. The Kilpatrick Court, 188 P.3d at 409, recognized this and went to some lengths to explain why its holding was justified as an exception to that rule. In each of the cases cited by the Court in Kilpatrick in explaining its holding, joint custody was ended when the evidence showed the parties objected, they had problems with cooperation or communication, and the children would not be well served by continuation of joint custody.5
¶2 Kilpatrick v. Kilpatrick, 2008 OK CIV APP 94, 198 P.3d 406, clearly provides authority for maintaining joint custody over the objection of both parents. The majority’s attempt to distinguish Kilpatrick regarding the use of expert testimony, a parenting coordinator and smaller geographical distance is not persuasive. There is no evidence this court lacked a clear understanding of the parenting relationship at issue or that the Kilpatrick court had a more clear or accurate understanding of the parenting relationship due to the use of expert testimony in that case. The presence of a strong parenting coordinator was needed to implement co-parenting in Kilpatrick. The parents in this case managed to co-parent, largely without incident, without the assistance of a parenting coordinator, so that the absence of one in this case is not necessarily fatal to parents’ ability to make joint decisions. The distance factor can also be marginalized with the effective use of a multitude of communication tools.
¶27 A cardinal criterion for continuing joint custody is the agreement of the parties and their mutual ability to cooperate. In this respect, a party’s opposition to joint custody, in this case both parties’ opposition, is in effect the antithesis of the concept of joint custody. Under such circumstances, and the considerable evidence reflecting the likelihood of continued parenting strife, it is not in the children’s best interest to continue joint custody. The trial court abused its discretion by not granting the motions to terminate joint custody. ¶28 That portion of the trial court’s order denying the parties’ motions to terminate joint custody is REVERSED. The remainder of the order is AFFIRMED. This matter is REMANDED to the trial court with directions to terminate the joint custody and make an initial determination as to whom custody should be awarded based on the best interests of the children. MITCHELL, C.J., concurs. JOPLIN, J., concurs in part and dissents in part: ¶1 I respectfully dissent to the termination of joint custody. The statute guiding joint custody determinations is clearly permissive in its direction to the trial court, saying only that the court “may” terminate joint custody upon the request of one or both parents. 43 O.S. §109(G). The record in this case demonstrated the parents could get along well enough to jointly parent the children and not draw the children into their conflict. Whether distance would improve the parents’ cooperative skills or impair them is unknown based on the record provided and simply assuming distance would destroy the 2608
¶3 The trial court was in the best position to observe these parents, their witnesses, and consider the evidence and determined joint custody was preferable to all other alternatives available. Manhart v. Manhart, 1986 OK 12, 725 P.2d 1234, 1237. Because there is evidence to support the trial court’s decision in this respect and the statute itself is permissive, I dissent to the majority’s reversal of the trial court’s joint custody determination. In all other respects, I concur. 1. Father was awarded visitation with the children during summer vacation, every spring break vacation, alternating Thanksgiving vacations and alternating Christmas vacations, with transportation costs to be split equally between the parents. The court also provided at the hearing that if Father travels to New York, or Mother to Oklahoma, for a visit during the other parent’s custodial time with the children, the then-custodial parent must make the children available to the visiting parent, provided the visiting parent gives thirty days notice. 2. F. The court also may modify the terms of the plan for joint care, custody, and control upon the request of one parent. The court shall not modify the plan unless the modifications are in the best interests of the child. G. 1. The court may terminate a joint custody decree upon the request of one or both of the parents or whenever the court determines said decree is not in the best interests of the child. 3. The appealed-from order awarded Father $869.46 for overpayment of medical insurance premiums and child care expenses. There was no appeal from this element of the trial court’s award. 4. Note 2, supra 5. Accord, Moore v. Moore, 2009 OK CIV APP 27, 209 P.3d 318; White v. Polson, 2001 OK CIV APP 88, 27 P.3d 488; Boyd v. Boyd, 1993 OK CIV APP 196, 867 P.2d 492.
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2010 OK CIV APP 110 RONALD STOLL, Plaintiff/Appellant, vs. CHONG LOR XIONG and MEE YANG, Defendants/Appellees. Case No. 107,880. September 17, 2010 APPEAL FROM THE DISTRICT COURT OF DELAWARE COUNTY, OKLAHOMA HONORABLE ROBERT G. HANEY, TRIAL JUDGE AFFIRMED Eddie L. Carr, Christopher D. Wolek, Oliver L. Smith, GIBBS ARMSTRONG BOROCHOFF MULLICAN & HART, P.C., Tulsa, Oklahoma, for Plaintiff/Appellant. Mark D. Antinoro, TAYLOR, BURRAGE LAW FIRM, Claremore, Oklahoma, for Defendants/ Appellees. Wm. C. Hetherington, Jr., Judge: ¶1 Ronald Stoll appeals a judgment finding a clause in his contract with Chong Lor Xiong and Mee Yang (collectively, Buyers) unconscionable. He contends the contract was valid and enforceable. We affirm the trial court’s findings the contract paragraph supporting Stoll’s claim is unconscionable and Buyers were entitled to judgment in their favor as a matter of law. STANDARD OF REVIEW ¶2 When addressing a claim that summary adjudication was inappropriate, we must examine the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Perry v. Green, 1970 OK 70, 468 P.2d 483. All inferences and conclusions to be drawn from the evidentiary materials must be viewed in a light most favorable to Plaintiff. Ross By and Through Ross v. City of Shawnee, 1984 OK 43, 683 P.2d 535. ¶3 On review of summary judgments, the appellate court may “substitute its analysis of the record for the trial court’s analysis” because the facts are presented in documentary form. Loffland Brothers Company v. Overstreet, 1988 OK 60, ¶15, 758 P.2d 813, 817. “Although a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate decision turns on purely legal determinations, i.e. whether one party is entitled to judgment as a matter of law because Vol. 81 — No. 30 — 11/13/2010
there are no material disputed factual questions.” Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. An order granting summary relief, in whole or in part, disposes solely of law questions and hence is reviewable by a de novo standard. Brown v. Nicholson, 1997 OK 32, ¶5, 935 P.2d 319, 321. FACTS ¶4 Xiong and Yang are husband and wife. Prior to coming to the United States, Xiong, who is from Laos, became a refugee due to the Vietnam War. He lived in a refugee camp in Thailand for three years. Xiong had three years of school in Laos and learned to read and write Laotian. After arriving in the United States, he attended an adult school for two years in St. Paul, Minnesota, where he learned to speak English and learned the alphabet. He testified he understands some spoken English but can only read a “couple” written words. Yang is a Hmong immigrant from Laos.1 She received no education in Laos and her subsequent education consists of a six month “adult school” program after her arrival in 1985 in the United States at age 19. ¶5 According to Stoll, on November 8, 2004, Buyers signed a “preliminary” version of the contract which he did not execute, the contract terms at issue are the same as those in the executed January 1, 2005 contract, and they had time to have the disputed terms explained to them during the interim. ¶6 On January 1, 2005, Buyers contracted2 to purchase from Stoll as Seller “a sixty (60) acre parcel of real estate located in Delaware County, Oklahoma approximately .5 miles East of the current Black Oak Farm, and adjacent to land recently purchased by Shong Lee and Yer Xiong Lee.” The purchase price is described as “One Hundred Twenty Thousand Dollars ($130,000) [sic]. This purchase price represents $2,000 per acre and $10,000 for the cost of an access road to be constructed to the property by Seller.” The agreement also describes the property as a parcel which is “adjacent to the farm recently purchased by Shong Lee and Yer Xiong Lee,” i.e., Xiong’s sister and brother-in-law, who are the defendants in the companion case. ¶7 After the first growing cycle, Buyers decaked3 their chicken houses at a cost of $900. Yang testified: I don’t know if he’s supposed to get the chicken litter free or not. But in any coun-
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try, no one will buy you a free lunch or provide you a — or give you a free cigarette pack of three dollars. We just asked him to help us [sic] half of what the de-cake cost is, and he said no. She testified Stoll told her “that we had to understand that we had signed over the litter to him.” She did not then understand “when or what paperwork that we had signed with him giving him the rights to the litters.” ¶8 Xiong testified that in February of 2009 he had traded the chicken litter from the first complete clean out of their six houses for shavings. Stoll testified in a deposition taken in the companion case that the litter had value to him because “I was trading it for a litter truck and a tractor.” He was unsure what damages he would sustain from not having the litter but had told people he would “have litter for sale, now it’s not available.” He also testified he had independent knowledge, due to having put shavings into ten houses eight weeks prior to his deposition on April 9, 2009, that a chicken house the same size as Buyers’ houses took one semi load of shavings at a cost of $1,600 per load. According to his petition, Stoll discovered Yang and Xiong were selling the chicken litter to others and the chicken litter shed was empty on or about March 24, 2009.4 His suit against Buyers was filed the next day. ¶9 Stoll’s petition claims Buyers breached their contract with him by attempting to sell their chicken litter to someone else and asks for specific performance and a temporary injunction to prevent any sales to third-parties. He also claims he is entitled to immediate possession and if the litter has been taken in execution of a judgment against him, is exempt from being so taken. ¶10 Buyers answered and stated affirmative defenses and counter claims, including that the sales contract has merged into their deed filed February 18, 2005 without incorporation of the provision on chicken litter such that the provision can not run with the land; impossibility of performance due to Stoll’s violations of concentrate feeding operations statutory provisions; unconscionability of the contract; fraud due to Stoll’s failure to provide cost information despite their limited language skills; trespass; and damages for harm to a shed caused by Stoll’s heavy equipment. They request reformation of the contract or a finding the contract is invalid. 2610
¶11 Buyers moved for summary judgment, arguing there is no dispute about material facts, the contract is unconscionable as a matter of law, and that as a consequence of this unconscionability, all of Stoll’s claims should be denied and judgment be entered in their favor. Stoll moved for summary judgment in his favor, claiming there was no dispute Buyers signed the Agreement to Sell Real Estate on January 1, 2005, and under that agreement he was entitled to the chicken litter for 30 years. He alleged Buyers had a prior version of their agreement5 which contained the same paragraph in dispute but did not attempt to have it translated or explained to them and they should not benefit by failing to take such steps or from their failure to read the agreement. ¶12 The paragraph at the center of this dispute reads: 10. If this transaction closes as anticipated, Buyers shall be obligated to construct a poultry litter shed on the property with a concrete floor measuring at least 43 feet by 80 feet. Buyers shall place the litter from their poultry houses in the litter shed at the end of the growing cycle. Seller shall have all rights to the litter for a period of 306 years for [sic] the date of closing. Seller shall empty the litter shed completely between growing cycles so that the shed will be available for use by Buyers when needed. The opposing motions for summary judgment in this case and those filed in companion Case No. 107,879, brought by Stoll against Xiong’s sister, Yer Lee, and her husband, Shong Lee, to enforce provisions of a contract containing the same 30-year chicken litter provision, were argued at a single hearing. At hearing on the motions for summary judgment,7 Stoll argued the contract was not unconscionable and it was simply a matter of buyer’s remorse. Buyers responded, arguing their illiteracy forced them to rely upon representations made to them and the interpreter available to them, Xiong’s sister, explained the land purchase price but did not herself understand the meaning of the chicken litter paragraph.8 ¶13 At hearing, the trial court commented: I’ve read this and reread this and reread this. And I have tried to think of an example that I think was more unconscionable than the situation than (sic) I find to have been here as far as that clause. And to be real hon-
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est with you, I can’t think of one. And if unconscionability has any meaning in the law at all, if that is a viable theory at all, then I think this is a prime example of it. The trial court found the chicken litter clause was unconscionable, granted Buyers’ motion for summary judgment, denied Stoll’s motion for summary judgment, and entered judgment in favor of Buyers on Stoll’s petition. ANALYSIS ¶14 Stoll argues the trial court erred in finding the chicken litter clause was unconscionable as a matter of law, “by considering the fairness of the contract,” and by considering “anything other than fraud, duress, undue influence, mistake, or illegality of the contract.” He claims the trial court should have recognized “the validity of the contract at issue” and granted him judgment as a matter of law. ¶15 In their motion for summary judgment, Buyers argued the contract was unconscionable and there is no “colorable argument that the contract was bargained for between informed parties.” They argued Stoll’s own inability to articulate a reason any party would agree to give their chicken litter away when they also had to bear all the costs of generating it. They claim this demonstrates how unreasonably favorable to one party the chicken litter provisions are and how those provisions are “the personification of the kind of inequality and oppression that courts have found is the hallmark of unconscionability.” ¶16 In Barnes v. Helfenbein, 1976 OK 33, 548 P.2d 1014, the Court, analyzing the equitable concept of unconscionability in the context of a loan with the Uniform Consumer Credit Code, 14A O.S.1971 § 1-101, et seq., found that “[a]n unconscionable contract is one which no person in his senses, not under delusion would make, on the one hand, and which no fair and honest man would accept on the other.” 1976 OK 33, ¶23, 548 P.2d at 1020. The Court went on to note: The equitable concept of unconscionability is meaningful only within the context of otherwise defined factors of onerous inequality, deception and oppression. Unconscionability is directly related to fraud and deceit. An unconscionable contract is one which no person in his senses, not under delusion would make, on the one hand, and which no fair and honest Vol. 81 — No. 30 — 11/13/2010
man would accept on the other. The basic test of unconscionability of a contract is whether under the circumstances existing at the time of making of the contract, and in light of the general commercial background and commercial need of a particular case, clauses are so one-sided as to oppress or unfairly surprise one of the parties. Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties, together with contractual terms which are unreasonably favorable to the other party. 1976 OK 33, at ¶ 23, 548 P.2d at 1020. ¶17 “The question of unconscionability is one of law for the Court to decide.” Phillips Machinery Company v. LeBond, Inc., 494 F.Supp. 318, 322 (N.D. Okla. 1980), accord, 12A O.S.2001 § 2-302, Oklahoma Code Comment (“Note that the determination of ‘unconscionable’ is one of law for the court.”). The Oklahoma Legislature, at 12A O.S.2001 § 2-302,9 has addressed unconscionability in the context of the sale of goods under the Uniform Commercial Code. As is recognized in Restatement (Second) of Contracts, § 208, Comment a, (1981): Uniform Commercial Code § 2-302 is literally inapplicable to contracts not involving the sale of goods, but it has proven very influential in non-sales cases. It has many times been used either by analogy or because it was felt to embody a generally accepted social attitude of fairness going beyond its statutory application to sales of goods. We agree such an analogy is helpful with this analysis. The parties here provided evidence relating to their transaction. ¶18 According to Stoll’s deposition testimony in the companion case, which testimony is provided to support his motion for summary judgment in this case, it was his idea to include the chicken litter paragraph in the land purchase contract. He testified that one house decaking of a house like those of Buyers yields about 20 tons of litter. After 2008, rising oil prices drove up the cost of commercial fertilizer, but before then he had not sold litter for more than $12 per ton. Yang testified at deposition that according to Stoll’s representations, the litter could be worth $25 per ton. Xiong testified at deposition that they raised five flocks per year in their six houses. Applying these figures, the annual value of the litter from
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de-caking alone (i.e.,which does not include additional volumes of litter from a complete clean out) appears to range from roughly $7,200 to $15,000. For thirty years, the estimated value of the de-caked chicken litter using Stoll’s $12 value would be $216,000, or roughly an additional $3,325.12 more per acre just from de-caked chicken litter sales than the $2,000 per acre purchase price stated on the first page of the contract. Effectively, Stoll either made himself a partner in their business for no consideration or he would receive almost double to way over double the purchase price for his land over thirty years. Under Stoll’s interpretation of paragraph 10, Buyers’ separate business would generate an asset for thirty years for which they receive no consideration and would serve as additional payment to him over and above the stated price for the land. ¶19 An analogy exists regarding the cancellation of deeds. “Ordinarily the mere inadequacy of consideration is not sufficient ground, in itself, to justify a court in canceling a deed, yet where the inadequacy of the consideration was so gross as to shock the conscience, and the grantor was feeble-minded and unable to understand the nature of his contract, a strong presumption of fraud arises, and unless it is successfully rebutted, a court of equity will set aside the deed so obtained.” Fickel v. Webb, 1930 OK 432, 293 P. 206; Morton v. Roberts, 1923 OK 126, 213 P. 297. Under such circumstances, there is no assent to terms. Here, a nearly reverse situation exists in that the consideration actually to be paid under the contract far exceeds that stated. Under Stoll’s interpretation of paragraph 10 (which was his “idea”), the land sale contract is onerous to one side of the contracting parties while solely benefitting the other, and the parties to be surcharged with the extra expense were, due to language and education, unable to understand the nature of the contract. Stoll testified he believed his land was worth $2,000 per acre rather than the $1,200 per acre price of nearby land in 2004 due to the work he had done to clear and level it. The actual price Buyers will pay under the paragraph Stoll included in the land sale contract is so gross as to shock the conscience. Like in Fickel, the actual price is so gross as to shock the conscience. ¶20 Buyers argue no fair and honest person would propose and no rational person would enter into a contract containing a clause imposing a premium for land and which, without 2612
any consideration to them, imposes additional costs in the hundreds of thousands over a thirty-year period that both are unrelated to the land itself and exceed the value of the land. We agree. The trial court found the chicken litter clause in the land purchase contract unconscionable as a matter of law and entered judgment in Buyers’ favor. That judgment is AFFIRMED. BUETTNER, P.J., and HANSEN, J., concur. 1. Her deposition testimony was taken using Yer Lee, a defendant in companion Case No. 107,879, as an interpreter. However, at her own deposition, Ms. Lee was herself assisted by an interpreter. 2. The three-page Agreement to Sell Real Estate appears to be missing a page. Page one ends with numbered paragraph 7 and the text appears to be in mid-sentence. The first paragraph on the next page is numbered 10, and paragraph numbering is consecutive through the third page, which contains the parties’ signatures. 3. The de-caking process involves removal of some of the upper layer of bedding used by a flock. Afterwards, the bedding shavings are replenished for the next flock to a level set by Simmons’ contract. 4. Factual descriptions are somewhat confusing in some of parts of Stoll’s motion due to a reliance upon his deposition taken in Stoll v. Lee, companion Case No. 107,879. His access to chicken litter was denied in that case in late 2008. 5. This prior agreement lists the purchase price as $120,000 and there is no provision for a road. 6. The number is hand-written in this agreement and typed in the paragraph in the companion case, but both contain the same text. 7. Similar motions were filed in companion Case No. 107,879, and hearing was held on the motions in both cases on November 4, 2009. 8. She is a defendant in the companion case, in which she testified she did not think he would take the chicken litter “for free.” Her deposition testimony to that effect was included as an exhibit to Stoll’s response to Buyers’ motion for summary judgment. 9. Section 2-302 provides: (1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.
2010 OK CIV APP 103 JODI L. COMPTON, Appellant, vs. STATE OF OKLAHOMA, Appellee. Case No. 108,160. September 10, 2010 APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY, OKLAHOMA HONORABLE TOM L. NEWBY, TRIAL JUDGE REVERSED AND REMANDED Brian N. Lovell, CROWLEY, MARTIN, LOVELL & CAMERON, Enid, Oklahoma, and Chad N. Davis, Enid, Oklahoma, for Appellant, Cathy Stocker, DISTRICT ATTORNEY, Tallena McMichael, ASSISTANT DISTRICT ATTORNEY, Enid, Oklahoma, for Appellee.
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Carol M. Hansen, Judge: ¶1 Appellant, Jody L. Compton (Mother), seeks review of the trial court’s judgment based on a jury verdict terminating Mother’s parental rights to her minor child, B.C. (Child). We reverse and remand for new trial because the record does not show the jury made the necessary findings supporting its verdict. ¶2 Appellee, State of Oklahoma (State), acting through its Department of Human Services (DHS), took Child and her two sisters into emergency custody on September 11, 2004. On September 24, 2004, State petitioned for an adjudication the children were deprived, alleging: That the children do not have the proper parental care or guardianship or the home is an unfit place for them by reason of neglect, abuse, cruelty, or depravity on the part of their parents, ... specifically, A. That the mother pushed [Child] into the Youth and Family Services Shelter, stating that she wished to place [Child] for adoption and could not handle her any longer. B. That ... an employee of the shelter, heard [Child] screaming all the way from the car to the door of the shelter. C. That the family has had three prior prevention cases open with [DHS]. Preventive measures to assist this family have failed, and court intervention is necessary. D. That the mother attempted to relinquish all parental rights to the three children, per a written statement to DHS dated and signed August 2, 2004. E. That the mother’s actions are emotionally abusive to the children and are harmful to the children’s health. Mother stipulated to the allegations in the petition and the trial court adjudicated the children deprived in a hearing on December 16, 2004, and entered its order on December 17, 2004. It concurrently approved an individualized service plan (ISP) identifying the “[c]ondition(s) which need to be corrected” as follows: The children need to have a stable home environment in which their parent is able to cope with the special needs of [Child] and meet the emotional needs of [her sisters] without resorting to threats and attempts of abandoning her children. ¶3 The children were placed in foster care. Child’s sisters eventually were placed with Vol. 81 — No. 30 — 11/13/2010
their respective fathers. Child was the product of a rape by an attacker not known to Mother. Her unknown father’s parental rights were terminated pursuant to 10A O.S.Supp.2009 §14-904(B)(11). In April 2006, DHS placed Child with Mother in a reunification attempt but removed her again in July 2006 after Child, left unsupervised, rode her tricycle into heavy traffic blocks from her home. ¶4 The State petitioned to terminate Mother’s parental rights on August 21, 2008, alleging Mother had failed to correct Child’s deprived condition by failing to attend “counseling sessions to assist her with her own sexual abuse issues, stress management, coping skills, and other issues as determined by her counselor,” and by failing to address with the counselor “domestic violence in her relationships.” The State also alleged Child had been placed in foster care for fifteen out of the most recent twenty-two months preceding the filing of the petition. ¶5 The parties tried the matter to a jury on April 27 and 28, 2009. The jury returned a verdict terminating Mother’s parental rights on the grounds she failed to correct the conditions that led to the adjudication Child was deprived although she was given at least three months, and it was in the best interests of Child, but not on the grounds Child had been in foster care for fifteen of the most recent twenty-two months preceding the filing of the petition. The trial court entered judgment based on the verdict, finding Mother’s parental rights should be permanently terminated in and to Child, and termination was in Child’s best interests. ¶6 Mother appealed. The Oklahoma Court of Civil Appeals reversed and remanded, stating: The order clearly fails to identify the specific conditions leading to adjudication, the specific findings justifying termination, and the specific statutory basis for termination. In the absence of required findings, this Court has consistently held that the Court is effectively precluded from determining if the trial court acted properly in terminating parental rights. Because the termination order here does not identify a specific statutory basis for termination or any findings which support a specific statutory basis for termination, we must reverse the order of the trial court. The order is therefore reversed and the trial court is instructed to enter a proper final order cor-
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recting the deficiencies as described in this opinion. In Re B.C., Case No. 107,074 (Dec. 31, 2009) (citations omitted). On remand, the trial court entered an amended order, stating: The Jury, being duly sworn, and having listened to all the evidence and arguments, found, by clear and convincing evidence: (1) that [Child] was adjudicated as a deprived child on December 17, 2004, by stipulation of the Natural Mother to the State’s Petition which alleged that the minor child did not have the proper parental care or guardianship or, alternatively, that the home was an unfit place for the minor child; (2) that [Mother] failed to correct the conditions that led to the adjudication that the child was deprived, although she was given at least (3) [sic] months to correct such condition(s)...; and (3) that termination of the natural mother’s parental rights is in the best interests of the minor child. Based upon such findings, the jury returned a verdict in the following form: We, the jury, empaneled and sworn in the above entitled cause, do upon our oaths, find by clear and convincing evidence that the parental rights of [Mother] to [Child] SHOULD BE TERMINATED on the statutory ground that the parent failed to correct the conditions that led to the adjudication that the child was deprived, although she was given at least three (3) months, and that it is in the best interests of the child. ¶7 Mother now appeals this amended order. She contends the order violated her constitutional and statutory rights by terminating her parental rights based on a process that did not meet the due process requirements discussed in In re C.G., 1981 OK 131, ¶9, 637 P.2d 66, or the statutory ISP requirements. She also contends the trial court erred in failing to instruct the jury to make specific findings of fact or of the specific statutory basis for termination. ¶8 A court may terminate parental rights to a child if the child has been adjudicated deprived, the parent has failed to correct the condition which led to the child being adjudicated deprived, the parent has been given at least three months to correct the condition, and ter2614
mination of parental rights is in the best interests of the child. 10A O.S.Supp.2009 §1-4904(A)and (B)(5). In applying these grounds for termination, the Oklahoma Supreme Court has stated, Due process inexorably commands notice which reasonably informs a person that his legally-protected interest may be adversely affected.... Judicial notice ... can only be found in written judicially-prescribed norms of conduct to which the parent is expected to conform. Once these norms have been fashioned with clarity, the parent is entitled to the minimum statutory period of three months to conform. Judicial clarity in the prescribed norms of parental conduct is essential to the preservation of the procedural safeguards mandated by state and federal due process. A “fair warning” requirement breathes life into these fundamental-law guarantees, while lack of specificity makes them meaningless. In re C. G., 1981 OK 131, 637 P.2d 66, 68-69. ¶9 The ISP serves as the mechanism for guiding the parent in correcting the condition in order to provide the child with a safe home. 10A O.S.Supp.2009 §1-4-704. Failure to comply with the ISP, in itself, is not grounds for termination. In re K.C., 2002 OK CIV APP 58, 46 P.3d 1289, 1291. Conversely, compliance with the ISP is not in itself sufficient to regain custody of the child. Termination of parental rights under 10A O.S.Supp.2009 §1-4-904(B)(5) requires a finding the parent has failed to correct the condition, not a finding the parent failed to comply with the ISP. Correcting the condition leads to reunification, while failure to correct it leads to termination. ¶9 A specific statement of the condition leading to the adjudication the child is deprived is paramount to the case. The statement must appear in the trial court’s order adjudicating the child deprived, in the ISP, and in the order terminating parental rights upon §1-4-904(B)(5) grounds. In order for the jury to make a finding the parent failed to correct the condition, the jury must be instructed what the condition was. Therefore, the statement should appear in the jury instructions as well. ¶10 In the present case, the record contains multiple, inconsistent formulations of the condition leading to the adjudication Child was deprived. Only the ISP contained a specific statement of the condition leading to adjudica-
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tion. After the trial court’s initial order of termination was reversed for failure to identify the specific conditions leading to termination, the specific findings justifying termination, and the specific statutory basis for termination, the trial court entered another order stating the jury made specific findings. The record shows the jury did not render a special verdict making findings. Had the jury instructions identified the specific condition leading to termination, we could conclude the jury had made the necessary findings supporting its verdict. However, not only does the language of the finding ascribed to the jury of the conditions leading to termination appear nowhere in the jury instructions, it uses only general terms and does not state the specific condition identified in the ISP. The deficiency of the termination order cannot be cured merely by entering an amended order where the record does not show the jury made the necessary findings.
W.A. Drew Edmondson, ATTORNEY GENERAL, Richard D. Olderbak, ASSISTANT ATTORNEY GENERAL, STATE OF OKLAHOMA, Oklahoma City, Oklahoma for Defendant/ Appellant Oklahoma Department of Rehabilitation Services.
¶11 Accordingly, the trial court’s amended order terminating Mother’s parental rights to Child is reversed and this matter is remanded for new trial as to whether Mother’s parental rights should be terminated for failure to correct the condition stated in the ISP, to wit:
¶2 Kenneth Simington was employed by Department. He filed an internal grievance alleging his proper classification should be Programs Manager II, instead of his thencurrent classification, Programs Manager I. Department determined Simington was properly classified as Programs Manager I. Simington requested review of Department’s decision by the Office of Personnel Management. The OPM completed a review of the position occupied by Simington and concluded “the majority of the duties and responsibilities contained in this position are included in the job family and job family level of: H10B-Programs Manager II.” The OPM approved a reallocation promotion for Simington to Programs Manager, H10B. In October 2006, the OPM requested further information from the director of the Department, Linda Parker, about the duties and responsibilities assigned to the H10B position. After Parker submitted the requested information, the OPM determined the proper allocation for Simington’s position was H10APrograms Manager, Level 1.
The children need to have a stable home environment in which their parent is able to cope with the special needs of [Child] and meet the emotional needs of [her sisters] without resorting to threats and attempts of abandoning her children. REVERSED AND REMANDED for new trial. BUETTNER, P.J., and HETHERINGTON, J., concur. 2010 OK CIV APP 108 KENNETH L. SIMINGTON, Plaintiff/ Appellee, vs. OKLAHOMA DEPARTMENT OF REHABILITATION SERVICES and OKLAHOMA MERIT PROTECTION COMMISSION, Defendants/Appellants.
Jane P. Wiseman, Chief Judge: ¶1 The Department of Rehabilitation Services (Department) appeals from an order of the trial court reversing an order of the Oklahoma Merit Protection Commission (MPC) on the issue of attorney fees and costs. The issue confronting us is whether the decision of the MPC is supported by the evidence and applicable law. Our review shows that it is, a conclusion which therefore requires reversal of the District Court decision. FACTS AND PROCEDURAL BACKGROUND
REVERSED
¶3 Department notified Simington of the proposed involuntary demotion and informed him that it intended to reclassify him as a “Program Manager 1, H10A, in order for [his] classification to match the allocation of the position” he occupies. The Department notified Simington that his salary would not be reduced as a result of the involuntary demotion.
Daniel J. Gamino, DANIEL J. GAMINO & ASSOCIATES, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee,
¶4 Simington sent a letter to Department stating the reasons he thought the demotion was improper. On February 22, 2007, Depart-
Case No. 106,820. June 10, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE DANIEL L. OWENS, TRIAL JUDGE
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ment notified Simington of its final decision to involuntarily demote him. Simington filed an appeal with the MPC claiming he had been involuntarily demoted and hired an attorney to represent him in the appeal. ¶5 Department filed a motion for summary judgment which Simington opposed claiming the following: (1) Department “unofficially pressured” OPM to change its initial ruling on Simington’s position; (2) after OPM’s initial decision regarding Simington’s position became final, Department was prohibited from reopening the matter; (3) Department provided different material to the OPM in the re-examination of his position than it did in the first examination; (4) the OPM internally reassigned Simington’s case “to different OPM personnel to develop a different decision”; and (5) although the OPM changed its ruling, Simington’s tasks and responsibilities did not change. ¶6 A prehearing conference order was entered on May 16, 2007, in which the sole issue listed was Simington’s demotion. The matter was set for hearing on July 20, 2007. On July 9, 2007, an administrative law judge denied the Department’s motion for summary judgment. ¶7 Department subsequently moved to dismiss the appeal on the ground that, although Simington filed the action to be restored to the position he held prior to demotion, he left his employment with Department and obtained employment in another state. Department also alleged Simington’s rate of pay “was not cut when he was demoted, so there is not an issue regarding his right to any form of back pay.” Department claimed the appeal should be dismissed because it was moot. ¶8 Simington filed an objection to the motion to dismiss claiming that the appeal was not moot because the demotion harmed Simington’s opportunity for future advancement and future employers may see the demotion as a disciplinary action. Simington also argued the appeal was not moot because it alleged unlawful conduct by Department. He also asserted “he was subjected to harassment and workplace difficulties” after he filed his grievance and was forced to leave Department. ¶9 On October 30, 2007, Department offered to remove the demotion from Simington’s personnel record so that the record would indicate he was a Programs Manager II when he left Department. Simington responded that the offer by the Department “offers no redress for damages to his employment opportunities 2616
already inflicted by [Department’s] unlawful actions, it does not make [Department] or other co-conspirators accountable for deliberate evasion and violation of the Merit Rules, and it does not provide any documents lawfully requested by Mr. Simington in discovery.” ¶10 P. Kay Floyd, an administrative law judge, issued a decision granting Department’s motion to dismiss. The ALJ found that Simington retired from his job as Programs Manager in June 2007 and “[h]e is therefore no longer eligible for ‘reinstatement’ to the class previously held.” The ALJ also found Simington never received a reduction in pay so there were no benefits or loss of pay issues to address. The ALJ stated the Department “will completely remove the demotion from [Simington’s] file so his personnel record will indicate that when he left the [Department] he was a Programs Manager II — the position he held prior to his demotion to Programs Manager I.” ¶11 The ALJ found persuasive Department’s argument that the appeal was moot. The ALJ further found the other issues raised by Simington were new issues that had not been contained in his appeal petition or prehearing conference statement. The ALJ concluded that Simington’s request for attorney fees and costs was premature and not made according to procedures set forth by rule or statute. ¶12 On January 17, 2008, Simington filed an application pursuant to 74 O.S.2001 § 840-6.8 seeking attorney fees of $12,150 and costs of $339.19. The ALJ filed an addendum decision on February 12, 2008, that stated: On January 7, 2008 [Department’s] Motion to Dismiss was granted and no hearing on the merits of this case was held. It is clear from the language in both Title 74 O.S., § 840-6.8 and Merit Rule 455:10-15-1 that a hearing is required prior to the request for attorney fees and costs being made. If there is no hearing, there can be no “presiding officer of any hearing” to make a determination who is the prevailing party, if the nonprevailing party’s position was without reasonable basis or was frivolous, and what fees and costs should be paid. Only after a hearing is held may a party file for attorney fees and costs as allowed in Title [74] O.S., § 840-6.8 and Merit Rule 455:10-15-1. The ALJ found Simington ineligible for an award of attorney fees and costs.
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¶13 Simington also filed on January 17, 2008, a motion for rehearing, reopening or reconsideration of the dismissal claiming he filed the action based on unlawful demotion and he prevailed in the action. He claimed Department’s “position was without reasonable basis or was frivolous.” On February 22, 2008, Simington filed a motion for rehearing, reopening, or reconsideration of the denial of his request for attorney fees and costs. ¶14 Simington’s requests for reconsideration of the decision on the motion to dismiss and on his application for attorney fees and costs were heard en banc before the Commissioners of the MPC. The Commissioners voted to deny the motions for reconsideration. ¶15 Simington appealed the decision to the District Court of Oklahoma County. Without stating on which of the grounds enumerated in 75 O.S.2001 § 322 it relied,1 the trial court reversed the decision of the MPC as to attorney fees and costs and remanded the matter for an evidentiary hearing to determine whether Department’s position in Simington’s case “was without reasonable basis.” The trial court further stated that it was not addressing the other issues Simington raised in his appeal to the district court. ¶16 Department appeals the trial court’s reversal of the order denying attorney fees and costs. STANDARD OF REVIEW ¶17 Under the Oklahoma Administrative Procedures Act, the District Court and this Court apply the same standard of review for agency actions. City of Tulsa v. State ex rel. Pub. Employees Relations Bd., 1998 OK 92, ¶ 12, 967 P.2d 1214, 1219. Our review, like the district court’s, is limited. Carpenters Local Union No. 329 v. State ex rel. Dep’t of Labor, 2000 OK CIV APP 96, ¶ 3, 11 P.3d 1257, 1259. We will set aside a decision of an administrative law judge only if we determine that one or more of the grounds listed in 75 O.S.2001 § 322 is shown.2 Id. 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.” Id. ANALYSIS ¶18 Title 74 O.S.2001 § 840-6.8(A) provides the following: “The presiding officer of any hearing or Alternative Dispute Resolution Program proceeding before the Oklahoma Merit Protection Commission may require payment Vol. 81 — No. 30 — 11/13/2010
of reasonable attorney fees and costs to the prevailing party if the position of the nonprevailing party was without reasonable basis or was frivolous.” ¶19 The Oklahoma Administrative Code (O.A.C.) also addresses the issue of prevailing party attorney fees in actions before the MPC. Specifically, O.A.C. 455:10-15-1(a) provides that in an appeal before the MPC, “A presiding official of any hearing or Alternative Dispute Resolution Program procedure may order payment of reasonable attorney fees and costs to the prevailing party if the position of the nonprevailing party was without reasonable basis or was frivolous.” The burden of proof is on the party seeking attorney fees. O.A.C. 455:10-15-1(b). “To be entitled to an award of attorney fees and costs, the prevailing party shall be deemed to have prevailed if he or she received all or a significant part of the relief sought through the appeal.” O.A.C. 455:10-15-1(c). Subsection (c) further provides, “There shall be a finding that the nonprevailing party’s position was without reasonable basis or was frivolous.” Id. Subsection (d) provides the following: The without reasonable basis or frivolous standard includes, but is not limited to: (1) where the nonprevailing party’s action was clearly without merit or was wholly unfounded; (2) where the nonprevailing party initiated an action against the prevailing party in bad faith, including where the action was brought to harass or intimidate the prevailing party; (3) where the nonprevailing party committed a gross procedural error which prolonged the proceeding or severely prejudiced the prevailing party; and (4) where the nonprevailing party knew or should have known he or she would not prevail on the merits of the action taken. O.A.C. 455:10-15-1(d). ¶20 On appeal, Department asserts that because Oklahoma follows the American Rule on the subject of attorney fees, attorney fees can only be awarded if provided for by statute or contract. Department argues that the statute dealing with attorney fees in MPC cases, 74 O.S.2001 § 840-6.8(A), only allows attorney fees and costs to the prevailing party after a hearing
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on the merits has been held “where the evidence is presented and challenged.” ¶21 A hearing is defined by O.A.C. 455:10-1-2 as follows: [A]n open, formal proceeding conducted by an Administrative Law Judge, Executive Director or Commissioners to decide an appeal. The proceeding is to provide each party with an opportunity to present evidence in support of their side of the case. The hearing is governed by the Oklahoma Administrative Procedures Act, Sections 309 through 316 of Title 75 of the Oklahoma Statutes. We decline to construe the above section as narrowly as Department urges us to. The statute and administrative rule allow “the presiding officer of any hearing” to award attorney fees and costs to a prevailing party under certain circumstances. As defined in O.A.C. 455:101-2, a “hearing” is an “open, formal proceeding conducted by an Administrative Law Judge, ... to decide an appeal.” This proceeding is designed to provide the parties the “opportunity to present evidence in support of their side of the case.” ¶22 According to the ALJ’s January 7, 2008, “Decision Regarding Appellee’s Motion to Dismiss,” the ALJ held a hearing on September 21, 2007, at which the parties presented oral argument on the issues in the motion. The ALJ considered the briefs of the parties as well as documentation later submitted in the form of a letter from Department to MPC confirming that Department would remove the demotion from Simington’s file so his personnel record would reflect his Programs Manager II designation. After considering these matters presented at the hearing and afterwards, the ALJ decided Simington’s appeal — she granted the motion, dismissing the appeal as moot as a matter of law, there being no decision to be rendered that could have any practical effect on the existing dispute. It cannot be debated that no evidentiary hearing was held because the appeal was dismissed as moot, negating the necessity to present evidence on disputed issues of fact. ¶23 Thus, at the hearing on Department’s motion to dismiss, although the parties would have been entitled to present evidence to support their positions, had the need arisen, the motion to dismiss presented a matter of law which obviated that opportunity. This is consistent with our holding in French v. State of 2618
Oklahoma ex rel. Oklahoma Department of Corrections and Oklahoma Merit Protection Commission, No. 106,210 (Okla. Civ. App. filed June 10, 2010). We read the definition of “hearing” to mean proceedings for the purpose of presenting issues dispositive of the appeal with the right by all parties to present evidence to support their positions on those issues, not merely those occasions on which the right to present evidence has been exercised. The ALJ was the presiding officer of that hearing at which the issues dispositive of the appeal were heard. The ALJ was therefore authorized, but not mandated, to award attorney fees and costs pursuant to 74 O.S.2001 § 840-6.8(A) and O.A.C. 455:10-15-1 if the prevailing party could meet the appropriate criteria regarding the position of the nonprevailing party. ¶24 Having concluded that the award of attorney fees and costs is not precluded by the nature of the hearing at issue here, we nevertheless agree with the ALJ’s ultimate denial of such an award. The order dismissing the case as moot has not been appealed and has become final. In the face of an order of dismissal based on mootness, there can be no basis for an award of attorney fees and costs to Simington as the “prevailing party,” and we cannot categorize Department, having succeeded in its quest to have the appeal dismissed for mootness, as “the nonprevailing party.” The ALJ’s decision to deny Simington’s request for attorney fees and costs was correct. If the trial court’s judgment is correct, although based on incorrect reasoning, it will not be disturbed on appeal. Harvey v. City of Oklahoma City, 2005 OK 20, ¶ 12, 111 P.3d 239, 243. ¶25 In summary, the ALJ’s denial of Simington’s application for attorney fees and costs and MPC’s subsequent refusal to reconsider that denial were correct. We find no basis on any of the grounds enumerated in 75 O.S.2001 § 322 to reverse the MPC’s decision that attorney fees and costs are not recoverable in Simington’s appeal, and the trial court’s decision must be reversed. CONCLUSION ¶26 We find no error in the MPC’s decision denying Simington’s application for attorney fees and costs. The reversal of the MPC’s decision by the trial court is reversed. ¶27 REVERSED. FISCHER, P.J., and BARNES, J., concur.
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1. Title 75 O.S.2001 § 322 provides that an agency order may be set aside, modified, or reversed if the order (1) violates a constitutional provision; (2) was “in excess of the statutory authority or jurisdiction of the agency;” (3) was “made upon unlawful procedure;” (4) was “affected by other error of law;” (5) was “clearly erroneous;” (6) was “arbitrary or capricious;” or (7) “because findings of fact, upon issues essential to the decision were not made although requested.” 2. See footnote 1 infra.
2010 OK CIV APP 107 STATE OF OKLAHOMA, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellee, v. HAZEL LORRAINE EVANS, Defendant/Appellant, and THE ROGERS COUNTY TREASURER, Defendant. Case No. 106,733. March 25, 2010 APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, OKLAHOMA HONORABLE DWAYNE STEIDLEY, JUDGE AFFIRMED Kelly F. Monaghan, Lori Gilliard, John M. Folks, HOLLOWAY & MONAGHAN, Tulsa, Oklahoma, for Plaintiff/Appellee, K. Ellis Ritchie, Ryan M. Roberts, David F. DuVall, K. ELLIS RITCHIE, P.C., Pryor, Oklahoma, for Defendant/Appellant. Kenneth L. Buettner, Presiding Judge: ¶1 Plaintiff/Appellee, the Oklahoma Department of Transportation (ODOT), filed a petition June 17, 2005, to acquire a portion of Defendant/ Appellant Hazel Lorraine Evans’ (Evans or Landowner) property, through eminent domain for the purpose of improvement and expansion of Highway 20 in Rogers County. Evans filed an exception to the Commissioners’ Report on the grounds that it was in derogation of 27 O.S.2001 §13(9). The overarching question before the trial court, and on review is whether, in an eminent domain proceeding, the landowner may except to the commissioners’ report and force the State to find a parcel of the land in question to be an uneconomic remnant pursuant to 27 O.S.2001 §13(9). We hold that §13(9) is an expression of policy directed to the condemning authority concerning uneconomic remnants which is unenforceable by a private party. The trial court did not abuse its discretion when it denied Defendant/Evan’s exception and we therefore affirm. ¶2 Evans’ property consists of 4.30 acres on the south side of Highway 20. She has a home on the property, a barn, and a gravel driveway. According to ODOT’s Brief-in-Chief, it acquired Vol. 81 — No. 30 — 11/13/2010
.47 acre in fee simple, a .03 acre perpetual utility easement, and a .03 acre temporary easement. Evans’ Brief-in-Chief alleges the taking to be 105.10 feet in total from the right-of-way line, consisting of 70.8 feet in fee and 5 feet in easement, resulting in a setback, nonconforming to zoning requirements. Evans based her exception to the Commissioners’ Report on this allegation: that ODOT abused its discretion when it failed to declare the remainder of her property to be an uneconomic remnant. She claims ODOT should have been required to acquire her home and provide her with relocation assistance.1 ¶3 Title 27 O.S.2001 §13 Policies states: Any person, acquiring agency or other entity acquiring real property for any public project or program described in Section 9 of this title shall comply with the following policies: *** 9. If the acquisition of only part of the property would leave its owner with an uneconomic remnant, an offer to acquire that remnant shall be made. For the purposes of this section, an uneconomic remnant is a parcel of real property in which the owner is left with an interest after the partial acquisition of the property of the owner which has little or no value or utility to the owner. ¶4 Section 15 of Title 27 is apposite to Section 13, and describes the circumscription of landowners: “The provisions of Section 5 [Title 27, §13] create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation.” In Western Farmers Electrical Co-Operative v. Willard, 1986 OK CIV APP 5, 726 P.2d 361, this Court held that the trial court was correct in denying landowners’ objections based on the condemning authority’s failure to comply with §13 because it is a statement of policy only. ¶5 Eminent domain proceedings are “... special statutory proceedings and are to be carried out in accordance with the specific procedures prescribed by the Legislature.” State ex rel. Department of Transportation v. Kelly, 2007 OK CIV APP 25, ¶13, 156 P.3d 734, 738. “Once sworn, the commissioners are obligated to ‘inspect the real property and consider the injury which the owners may sustain by reason of the condemnation, and ... assess the just
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compensation to which the owner is entitled; ... reporting in writing to the clerk of the court, setting for the quantity, boundaries and just compensation for the property taken. 69 O.S.Supp. §1203(c).’” Id. In the Kelly case, the landowners sought replacement housing payments. The Court of Civil Appeals held that those payments were not recoverable as direct or consequential harm caused to property taken (just compensation) pursuant to our statutory scheme. ¶6 In general, there is no “cause of action” in eminent domain proceedings. “The presence of a civil wrong is a critical identifying characteristic of a ‘cause of action’ since ‘causes of action’ are to remedy civil wrongs which are threatened or committed.” City of Tahlequah v. Lake Region Electric, Co-Operative, Inc., 2002 OK 2, ¶8, 47 P.3d 467, 471. “Condemnation proceedings do not involve a tort and are not civil actions at law or suits in equity. Id. at ¶8, p. 471. Landowner cannot force ODOT to re-evaluate its taking through the use of §13(9). ¶7 The Commissioners returned a damages report to the Evans property in the total amount of $98,000. Evans timely demanded a jury trial. The parties dispute the point of measuring the taking — either from the home’s foundation or the front porch, a fact question to be argued to the jury. Evans has the opportunity to prove her home worthless because of zoning violations at a jury trial. However, §13(9) does not provide a mechanism for a landowner to challenge ODOT’s determination that the remaining property is an “uneconomic remnant.”2 ¶8 With respect to Evans’ challenge to ODOT’s abuse of discretion vis-à-vis §13(9), we find State ex rel. Board of Regents v. McCloskey Brothers, Inc., 2009 OK 90, ___ P.3d ___, to be helpful. In this condemnation action, the landowners challenged the composition of the board of regents, which was best described as a collateral question to the issue of the condemnation action. The Oklahoma Supreme Court stated “... we explained that ordinarily it is no justiciable concern of private individuals that these public subdivisions and organizations of the state may have some infirmity in their organization, nor do such individuals have a right to equitable relief to void an election organizing a school district.” Id. at ¶21, p. ____. ¶9 There is no right for an individual, even a party to a condemnation action, to attempt to force the condemning authority to do, or refrain 2620
from doing anything, through the policies expressed in 27 O.S.2001 §13(9). There is no “cause of action” and no remedy available through that statute. ODOT must follow the law and must follow its agency rules and procedures. However, a landowner has no private right of action for what she believes is ODOT’s failure to follow the mandates of §13(9). ¶10 The order of the trial court is affirmed and the matter remanded for further proceedings. HETHERINGTON, J., concurs, and HANSEN, J., concurs in result. 1. The exception hearing was consolidated with the cases of five other property owners: State of Oklahoma, ex rel. Department of Transportation, Plaintiff, vs. Michael J. Putze, et al., CJ-2005-323, and vs. Rose Ann McCaw, n/k/a Rose Ann McCaw-Ransom, et al., CJ2005-324, and vs. Darren M. Crauthers, et al., CJ-2005-366, and vs. Mark A. Colley, et al., CJ-2005-367, and Sharon L. Cox, f/k/a Sharon L. McDonald, et al., CJ-2005-383. 2. In this case, the trial court, in a well-reasoned order, found that the remaining property included a one story frame home with brick veneer, a metal barn, a driveway, utilities, and access to public roadways.
2010 OK CIV APP 105 TERESA TORTORELLI and ROBERT L. TORTORELLI, Plaintiffs/Appellants, vs. MERCY HEALTH CENTER, INC., KIMBERLY SMITH, M.D., OKLAHOMA ORTHOPEDICS, INC., d/b/a OKLAHOMA ORTHOPEDICS INCORPORATED, and ISOTIS ORTHOBIOLOGICS, INC., Defendants/Appellees, GENSCI REGENERATION LABORATORY SCIENCES, INC., ISOTIS, S.A., successor to GENSCI ORTHOBIOLOGICS, INC., THE ORTHOBIOLOGICS TECHNOLOGY COMPANY, and SMC VENTURES, INC., successor to GENSCI REGENERATION SCIENCES, INC., Defendants. Case No. 106,073. June 4, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE PATRICIA G. PARRISH, TRIAL JUDGE AFFIRMED Rex D. Brooks, Oklahoma City, Oklahoma, for Plaintiffs/Appellants,1 Ryan S. Wilson, HARTZOG, CONGER CASON & NEVILLE, Oklahoma City, Oklahoma, for Defendant/Appellee Mercy Health Center, Inc., Daniel K. Zorn, Stephen R. Palmer, COLLINS, ZORN & WAGNER, P.C., Oklahoma City,
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Oklahoma, for Defendant/Appellee IsoTis Orthobiologics, Inc.,
putty, is a product of IsoTis and it became the focus of this litigation.
L. Earl Ogletree, Lane O. Krieger, WIGGINS SEWELL & OGLETREE, Oklahoma City, Oklahoma, for Defendants/Appellees2 Dr. Kimberly Smith and Oklahoma Orthopedics, Inc.
¶5 According to Dr. Smith, she used bone putty because a large area was removed during the tumor removal surgery, which put Plaintiff at risk for a later fracture of her tibia, and the bone putty promotes bone formation across the area of tumor removal. She did not use a bone graft from Plaintiff herself because of concerns about infection at a second surgical site.
Wm. C. Hetherington, Jr., Judge: ¶1 Teresa M. Tortorelli (Plaintiff) and Robert L. Tortorelli (collectively, Appellants) appeal judgments in favor of IsoTis Orthobiologicals, Inc. (IsoTis), Mercy Health Systems, Inc. (Mercy), Oklahoma Orthopedics, Inc. (Oklahoma Orthopedics) and Dr. Kimberly S. Smith, M.D. (Dr. Smith).3 Appellants argue the trial court erred as a matter of law in sustaining motions for summary judgment based on application of the learned intermediary doctrine. They argue reversible error also occurred in jury instructions, by the allowance of argument during an opening statement, denial of a motion to amend their petition and for a continuance, denial of their motion for a directed verdict, and in both allowing and refusing to allow the presentation of certain evidence regarding their claims against Dr. Smith. ¶2 The judgments in favor of IsoTis and Mercy following the grant of their respective motions for summary judgment based upon the learned intermediary doctrine are AFFIRMED. No reversible error is shown or any error is harmless as to other alleged grounds for reversal, and the judgment entered on the jury’s verdict in favor of Dr. Smith and Oklahoma Orthopedics accordingly is AFFIRMED. Facts ¶3 Plaintiff went to her primary care doctor due to pain in her back and knees. She was referred to an orthopedic clinic, where a doctor took x-rays of her back and right knee. One xray showed a tumor in Plaintiff’s right leg, and she was referred to Dr. Smith,4 an orthopedic surgeon who concentrates her practice in tumor removal surgery. ¶4 On November 8, 2000, Dr. Smith removed the bone tumor from Plaintiff’s right tibia during surgery at Mercy Health Center. During the surgery, the following were placed in Plaintiff’s right leg: a tibial nail, a bolt (also referred to as a rod), bone cement, and Dynagraft allograft5 bone putty. The last of these items, the bone Vol. 81 — No. 30 — 11/13/2010
¶6 Plaintiff had redness and swelling in her right leg following the November 8, 2000 surgery, but she was discharged from Mercy’s hospital on Saturday, November 11, 2000, with instructions to change the wound dressing at least once a day, keep the dressing dry, begin showering only after the wound stopped draining, and to contact her doctor if her condition worsened. She developed more swelling and redness throughout her right leg and went to an emergency room at Presbyterian Hospital late in the next evening on Sunday, November 12, 2000. She was released from the emergency room early on Monday November 13, 2000, given antibiotics, advised she had cellulitis,6 and told to consult Dr. Smith. ¶7 Plaintiff went to a scheduled Tuesday, November 14, 2000 follow up appointment with Dr. Smith and was re-admitted to Mercy that day. She was treated with high doses of antibiotics, and the swelling and redness began to subside but it did not resolve. Dr Smith suspected Plaintiff either had a deep infection at the surgical site or a reaction to the bone putty. ¶8 On November 22, 2000, Dr. Smith surgically removed all the bone putty, did a radical irrigation of the wound, and debrided the area. Following this surgery, Plaintiff’s cellulitis resolved within 48 hours, but she continued to have swelling and redness with resolution over the next few days. Dr. Smith made a postoperative diagnosis of cellulitis with a failure to respond to intravenous antibiotics, which she found consistent with a possible allergic reaction to the bone putty or the bone cement. Plaintiff was discharged on November 26, 2000. Plaintiff contended she continued to have pain and was diagnosed about a month later as having reflex sympathetic dystrophy disease (RSD), also referred to as complex regional pain syndrome, as a result of her reaction to the bone putty. From March 15, 2001 until June 14, 2005, Plaintiff was treated for
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RSD7 by Dr. Scott Mitchell, who is board certified in anesthesiology with additional certification in pain management. ¶9 Appellants filed suit on November 4, 2002, and filed their Fifth Amended Petition June 21, 2005.8 They alleged they sustained damages based on breach of the standard of care due Plaintiff by Dr. Smith’s failure to obtain consent to use “allograph bone putty made from cadaver paste” during the tumor removal surgery and stated claims based upon products liability under strict liability, negligence, and breach of warranty theories. Robert Tortorelli, Plaintiff’s husband, alleged he sustained damages due to a loss of consortium. ¶10 Initially, Appellants argued Plaintiff had informed Dr. Smith of her allergy to iodine and they based claims for damages upon the use of iodine to clean Plaintiff’s skin prior to surgery or in either the preparation of the bone putty or the bone cement. Defendants denied these uses of iodine had occurred. Following discovery, the claims based upon iodine usage were not pursued by Appellants. ¶11 In 2008, IsoTis9 and Mercy filed separate motions for summary judgment in which each argued the learned intermediary doctrine applied and each had no liability. After judgment was entered in favor of each of them, the case later was tried to a jury on the issue of informed consent against Dr. Smith and Oklahoma Orthopedics, the sole remaining defendants.10 Following three days of trial, the jury returned a verdict in favor of Dr. Smith and Oklahoma Orthopedics. Appellants raise several allegations of error in their appeal, and we address them in turn. Motions for Summary Judgment ¶12 Appellants argue the judgments entered in favor of IsoTis and Mercy following summary adjudication proceedings require reversal because inadequate warnings rendered the learned intermediary doctrine inapplicable. Mercy and IsoTis claim the judgments were properly granted because they were shielded from liability under the learned intermediary doctrine. Mercy also argued Appellants’ “attempt to create sham facts” by their assertion of a new theory of liability in response to IsoTis’s motion for summary judgment should be rejected, and it was entitled to judgment. ¶13 “When on motion for summary judgment it appears from pleadings, affidavits, 2622
depositions, admissions, answers to interrogatories or other instruments properly before the Court that there are no genuine issues as to material facts or that admitted facts justify but a single inference therefrom, it is not error to grant summary judgment.” Perry v. Green, 1970 OK 70, ¶0, 468 P.2d 483. “On motion for summary judgment there can be no trial of fact issues since its function is to determine whether there are any genuine issues as to material facts. Such motion should therefore be denied if under the evidence reasonable men might reach different conclusions from undisputed facts.” Id. ¶27, 488-89. (Citation omitted.) All inferences and conclusions to be drawn from the evidentiary materials must be viewed in a light most favorable to Plaintiff. Ross By and Through Ross v. City of Shawnee, 1984 OK 43, 683 P.2d 535. ¶14 On review of summary judgments, the appellate court may “substitute its analysis of the record for the trial court’s analysis” because the facts are presented in documentary form. Loffland Brothers Company v. Overstreet, 1988 OK 60, ¶15, 758 P.2d 813, 817. The appellate court may not weigh evidence, but it may review the evidence presented to determine whether there is a factual dispute. Stuckey v. Young Exploration Company, 1978 OK 128, 586 P.2d 726. Summary judgment should be granted only if it is perfectly clear that there is no material fact at issue. Northrip v. Montgomery Ward and Co., 1974 OK 142, 529 P.2d 489. “Where different interpretations of the facts may be drawn as to a particular fact question, the issue should be presented to a jury.” Manora v. Watts Regulator Co. 1989 OK 152, ¶9, 784 P.2d 1056, 1060. ¶15 Appellants argued the bone putty was delivered with inadequate warnings which made it a defective product and made IsoTis liable for Plaintiff’s injury due to allergic reaction to its product. Appellants claim Mercy also is liable for inadequate warnings, even though it might not have participated in formulating those warnings, because it supplied the bone putty and therefore participated in its chain of distribution. ¶16 In Kirkland v. General Motors Corporation, 1974 OK 52, 521 P.2d 1353, the Oklahoma Supreme Court adopted the theory of strict liability in tort set forth in Restatement (Second) of Torts, § 402A (1965). Under this liability theory, one who sells a product in a defective condition unreasonably dangerous to the user or consumer or to his or her property is
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liable for physical harm caused by the product if the seller is engaged in the business of selling that product and the product is expected to and does reach the user and consumer without substantial change in the condition in which it is sold. ¶17 “The manufacturer of a product has a duty to warn the consumer of potential dangers which may occur from the use of the product when it is known or should be known that hazards exist.” McKee v. Moore, 1982 OK 71, ¶4, 648 P.2d 21, 23. To recover, a plaintiff must establish both that injury was caused by the product and by a failure to warn of a possible detrimental reaction. Id. ¶5, 23-24. “In a strict liability action it is immaterial to the plaintiff’s case that the defect in the product was not caused by the distributor. The liability of the manufacturer and distributor is coextensive, even though the distributor was not responsible for the presence of the defect.” Braden v. Hendricks, 1985 OK 14, ¶12, 695 P.2d 1343, 1350. ¶18 The learned intermediary doctrine is an exception11 to the manufacturer’s duty to warn an ultimate consumer and shields a manufacturer from liability if it has adequately warned a prescribing physician of a danger which is the cause of the consumer’s injury. Edwards v. Basel Pharmaceuticals, 1997 OK 22, 933 P.2d 298. Certain products, including prescription drugs and other items requiring a prescription or physician’s order are inherently dangerous or incapable of being made safe, but serve a public benefit. Eck v. Parke, Davis & Company, 2001 10CIR 787, ¶12, 256 F.3d 1013, 1017. “It is the physician’s duty to inform himself of the qualities and characteristics of those products which he administers or prescribes for use of his patients, and to exercise his judgment, based on his knowledge of the patient as well as the product.” McKee v. Moore, 1982 OK 71, ¶8, 648 P.2d 21, 24. ¶19 The burden for plaintiffs is no different than in an ordinary negligence case when the learned intermediary doctrine is applied because the failure to give adequate warnings is what makes a product defective. Lindsay v. Ortho Pharmaceutical Corporation, 637 F.2d 87 (2nd Cir. 1980). Under the learned intermediary doctrine, a manufacturer’s liability is directly related to the adequacy of the warning provided, and if the doctor is adequately warned the product is not defective. Id. 91.12 “The adequacy of warnings is determined by Vol. 81 — No. 30 — 11/13/2010
state law.” Edwards, 1997 OK 22, ¶17, 933 P.2d at 303. ¶20 IsoTis contended the warnings adequately warned Dr. Smith of the potential for an allergic reaction such as that experienced by Plaintiff. Mercy contended it had no liability for allegedly inadequate warnings in the materials provided with the bone putty. IsoTis’s Motion ¶21 In support of its motion for summary judgment, IsoTis provided an affidavit by Dr. Smith in which she stated she: (1) had used the bone putty on numerous occasions, was aware of its purpose and of contraindications and precautions, (2) “was familiar with received, read, comprehended and understood” the “Directions for Use” insert prior to Plaintiff’s surgery, (3) had “reviewed and comprehended” the specific warning that “the possibility of an antigenic reaction is present in any allograft,” (4) was “aware and comprehended” the implantation of the bone putty “could create an antigenic reaction in the Plaintiff,” (5) had exercised “independent informed judgement” and “independent learning and experience,” and, (6) had, “based upon [her] independent informed judgement as a medical doctor” after having “evaluated the potential risks involved, including potential antigenic reactions,” concluded the benefits of using the bone putty were appropriate care for Plaintiff. In reply to Plaintiff’s response and objection to its motion for summary judgment, IsoTis also cited deposition testimony of Dr. Smith in which she stated she had used bone grafts some 40 to 50 times during her residency, fellowship, and the first two and half years of her practice and described how “antigenic” means a reaction of the body and includes an allergic reaction, because “[a] immune response is considered to be a reaction.” ¶22 The bone putty insert states “[t]he reaction of the body to any allograft is not completely understood.” In opposition to IsoTis’s motion for summary judgment, Appellants made a bare allegation IsoTis’s warnings are inaccurate and misleading “regarding reactions not being understood.” Bare, speculative, and conclusory allegations of possible inadequacies in warnings are insufficient to create a genuine factual issue under the learned intermediary doctrine. See Krasnopolsky v. WarnerLambert Company, 799 F.Supp. 1342 (E.D.N.Y. 1992). “[M]ere contention that facts exist or
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might exist is not sufficient to withstand summary judgment. The party responding to a motion for summary judgment has an obligation to present something which shows that when the date of trial arrives, he will have some proof to support his allegations.” Davis v. Leitner, 1989 OK 146, ¶12, 782 P.2d 924, 926. In the absence of evidence contradicting a warning so as to render it false, nothing is presented requiring trial by a jury. ¶23 To meet this burden, Appellants offered deposition testimony of biomedical research scientist Tara Tabatabaie (a non-doctor) to the effect that such reactions were understood at a cellular level, and then Appellants posed arguments based upon Dr. Smith’s understanding of the meaning of the phrase “not completely understood.” ¶24 The question whether all potential reactions are “completely understood” poses a red herring. A fact is material for purposes of summary judgment if its proof would have the effect of establishing or refuting one of the essential elements of cause of action. Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978. The Directions for Use for the bone putty contain the warning: “Although the production technique is designed to eliminate antigenic properties of the product, the possibility of such a reaction is present with any allograft.”13 The facts Appellants attempt to prove through the research scientist are insufficient because even if proven, the information offered does not contradict, refute or render false the warning the bone putty presented a risk of antigenic reaction. Plaintiffs mis-characterized Dr. Smith’s testimony about her familiarity with bone putty and the risk of an antigenic reaction posed by its use. ¶25 The material fact at issue was whether the proximate cause of Plaintiff’s injury, here an antigenic reaction to the bone putty, was a risk disclosed to Dr. Smith. It was. Judgment in favor of IsoTis based upon the learned intermediary doctrine is not precluded on this basis. ¶26 Appellants also argued a “sufficient testing for bone protein and marrow was not performed rendering the product defective and unreasonably dangerous” and Defendants’ arguments fail as a matter of law because Dr. Smith did “no independent research or reading.” This argument demonstrates a misconception about the learned intermediary doctrine. A major underlying assumption of the 2624
learned intermediary doctrine is that a product has properties rendering it dangerous so as to require a doctor’s prescription or order for its use. Argument about the particulars of the manufacturing process are not relevant when applying the learned intermediary doctrine. IsoTis’s duty as a manufacturer under this doctrine was not to provide an in-depth education to trained physicians in the underlying biochemistry in bone putty production but to identify and warn of risks. ¶27 To invoke a defense to liability under the learned intermediary doctrine, a manufacturer seeking its protection must provide sufficient information to the learned intermediary of the risk subsequently shown to be the proximate cause of a plaintiff’s injury. Here, IsoTis warned of the risk of an antigenic reaction from using its product, Dr. Smith knew an antigenic risk was possible, she knew of such warnings for bone putty, she considered the risk posed by using the bone putty, she decided it was appropriate to use the bone putty based upon her experience with bone putty and Plaintiff’s needs, and the Plaintiff had an antigenic reaction. The judgment in favor of IsoTis premised upon application of the learned intermediary doctrine is AFFIRMED. Mercy’s Motion ¶28 Mercy argued it may not be held liable for inadequate warnings if IsoTis’s motion for summary judgment is granted because Appellants’ claim against it is dependent upon their claim the bone putty lacked proper warnings.14 Having found the learned intermediary doctrine applicable as to IsoTis, the same doctrine applies in favor of Mercy. However, our inquiry into Mercy’s liability does not end with the application of this doctrine. ¶29 Appellants raised a new theory for Mercy’s liability in response to its motion for summary judgment, claiming negligence in the discharge of Plaintiff following the tumor removal surgery. Mercy argued Appellants were attempting to create sham facts through the affidavit. Mercy argued neither negligent discharge nor informed consent issues were stated in any of Appellants’ petitions, including the most recent, a fifth amended petition. More importantly, it argued, during the deposition of Appellants’ medical expert Dr. Henry Hug conducted just a week previously, though questioned specifically about his criticisms of Smith and Mercy, he voiced none based on
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standard of care.15 During an April 24, 2008 hearing, the trial court observed that the fifth amended petition does not state a negligence claim against Mercy, trial was scheduled on May 19th, and denied Appellants’ request to amend their petition. ¶30 When determining whether an affidavit may be disregarded because it attempts to create a sham issue of fact, the Court may consider whether the party was cross-examined during earlier testimony, whether the party had access to the evidence at the time of earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain. Ishmael v. Andrew, 2006 OK CIV APP 82, ¶16, 137 P.3d 1271, 1276. A trial court may disregard an affidavit purporting to create an issue of fact by directly contradicting prior deposition testimony during which the deponent was both cross-examined and had access to the information forming the basis for the affidavit at the time of the deposition. Savage v. Burton, 2005 OK CIV APP 106, 125 P.3d 1249. Such is the case here. Dr. Hug’s 2002 report states he reviewed Plaintiff’s medical records. Those medical records contain the same information about the condition of her leg which Plaintiff raised at deposition and upon which he based his premature discharge standard of care criticisms due to premature discharge after the tumor removal surgery. The trial court did not err in concluding no material fact was presented, and rejecting the affidavit. The order granting Mercy’s motion for summary judgment is AFFIRMED. Motion to Amend Petition and for Continuance ¶31 Appellants argue the trial court erred by denying their May 8, 2008 “motion to amend petition by stating specific negligent actions by stating them in the pre-trial order,” and by denying them a continuance to allow additional discovery. As before, Appellants claim they should have been allowed to amend their petition to state claims based upon negligence in the standard of care due to premature discharge following the tumor removal surgery because they only discovered the basis for amendment after their expert, Dr. Hug, read16 Plaintiff’s October 11, 2005 deposition testimony following his own April 15, 2008 deposition. Vol. 81 — No. 30 — 11/13/2010
¶32 “[T]he trial court has always possessed discretion over whether to allow an amendment to a pleading” subject to 12 O.S.2001 § 2015(A)’s requirement “that leave to amend be given freely if justice requires.” Prough v. Edinger, Inc., 1993 OK 130, ¶8, 862 P.2d 71, 73. Whether to permit an amendment of the pleadings is left to the discretion of the trial court. Andersen v. Fellers, 1998 OK CIV APP 53, ¶ 15, 960 P.2d 851, 855. ¶33 A trial court’s decision to deny a motion to amend will not be overturned, however, absent a showing of abuse of the court’s discretion under the circumstances. Prough, 1993 OK 130, ¶8, 862 P.2d at 73. A trial court acts within its discretion when a justifying reason exists to deny a request. McDermott v. Sentry Life Ins. Co., Inc., 2000 OK CIV APP 115, ¶27, 15 P.3d 508, 516. “Some of the factors to consider in evaluating whether a time delay is undue are: 1) the number of previous amendment requests; 2) the timing of the request (before or after discovery is closed and a trial date set); and 3) the length of time the movant was aware of the applicability of the amendment.” Prough, 1993 OK 130, ¶10, 862 P.2d at 73. ¶34 When determining whether the trial court abused its discretion in denying Appellants’ motion to amend, we consider the particular facts and circumstances of this case. According to Dr. Hug’s September 9, 2002 Report, he reviewed Plaintiff’s records from Mercy, the emergency room, x-rays, physical therapy, and office visits with treating doctors. Mercy’s records include descriptions of Plaintiff’s leg on the day of her first discharge and the identities of Mercy employees, including the resident who facilitated her discharge.17 His standard of care criticism at the time was premised upon Plaintiff’s history of allergy to iodine and based upon an alleged use of “radiopaque bone paste”which “most likely is manufactured with cadaver bone... mixed with an iodinated compound to make it radiopaque.” In an April 29, 2003 report, he repeated this criticism and recommended obtaining information whether the bone putty “contains iodine or some other allergen.” Appellants dropped allegations based upon the presence of iodine following discovery conducted in 2007. ¶35 Dr. Hug had no criticisms based upon standard of care when he was deposed on April 15, 2008. According to Appellants, Dr. Hug read Plaintiff’s 2003 deposition testimony only after that deposition. Dr. Hug was deposed again on
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May 14, 2008, and questioned about Plaintiff’s discharge following the first surgery. He was critical of the discharge because “from the medical records it would appear that there was some inflammation and drainage from the incision.” ¶36 At a May 16, 2008 hearing on the motion to amend and motions in limine, Defendant pointed out that all the names of Mercy personnel claimed to have prematurely discharged Plaintiff were in the medical records provided to Dr. Hug before his 2002 report, this information had been in Appellants’ possession during the six years Dr. Hug had been involved in the case, and Dr. Hug did not raise a standard of care issue in any of three written reports he wrote prior to his May 8, 2008 affidavit. Defendants argued Appellants had failed to conduct a diligent investigation about information in their possession and motion to amend only 11 days before scheduled trial would prejudice their clients.18 The trial court also noted the information had long been in Appellants’ and their expert’s possession. ¶37 “[A] trial court acts within its discretion if a justifying reason exists for the denial of the movant’s request.” McDermott v. Sentry Life Insurance Company., Inc. 2000 OK CIV APP 115, ¶28, 15 P.3d 508, 516. Like the Court in McDermott, we find relevant the observation “[a]lthough . . . leave to amend shall be freely granted, a party must act with due diligence if it intends to take advantage of the Rule’s liberality.” U.S. v. Midwest Suspension and Brake, 49 F.3d 1197, 1202 (6th Cir. 1995). Diligence was lacking here. ¶38 The trial court did not abuse its discretion by denying Appellants’ motion to amend given the records in their possession for more than six years and that the motion was filed after discovery had closed and just eleven days before trial was scheduled. Consequently, the trial court also did not abuse its discretion in denying a continuance to allow additional discovery. The Trial ¶39 Appellants claim the trial court “erred as a matter of law” in allowing certain evidence and in refusing to allow certain evidence, in allowing argument during Defendants’ opening statement, and in the use of various exhibits. We address these allegations in turn. ¶40 Evidentiary rulings by the trial court regarding relevance and admissibility are addressed to the sound discretion of the trial 2626
court, whose rulings thereon will not be disturbed absent a showing of abuse of discretion. American National Bank & Trust Company of Sapulpa v. BIC Corporation, 1994 OK CIV APP 70, 880 P.2d 420. “Decisions regarding relevance of evidence and its alleged prejudice to the other party will not be overturned absent an abuse of discretion.” Mills v. Grotheer, 1998 OK 33, ¶ 3, 957 P.2d 540, 541. “A judgment will not be reversed for error in the rejection of evidence unless it appears from an examination of the entire record that such error had probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Samara v. State, 1964 OK 79, ¶0, 398 P.2d 89, 90, cert. den. and appeal dismissed, 381 U.S. 354, 85 S.Ct. 1556, 14 L.Ed.2d 681 (1965). ¶41 Appellants argue it was error to exclude testimony by Robert Tortorelli that RSD was the reason Plaintiff received physical therapy and to prevent him from testifying about the reasons she had incurred certain other medical bills.19 We disagree. Mr. Tortorelli testified the bills were those he and Plaintiff contended resulted from the failure to inform them of the “cadaver bone putty.” There was no error in allowing him, when testifying as a member of Plaintiff’s family, to identify bills from medical or therapeutic providers for her treatment they allege are connected to the subject of litigation. 12 O.S.Supp.2002 § 3009. The medical records were subject to a stipulation between the parties as to identification, however, witnesses not testifying as an expert are limited to opinions and inferences “not based on scientific, technical or other specialized knowledge.” 12 O.S.Supp.2002 § 2701(3). It was not error to limit his testimony by preventing him from offering his opinion about the medical causation or diagnoses20 necessitating Plaintiff’s various treatments when such testimony would require “scientific, technical or other specialized knowledge.” ¶42 Appellants claim the trial court erred by allowing Defendants to use a blow up of a portion of testimony as an aid during opening statements and this error caused prejudice and reversible error. The trial court allowed the use as a demonstrative aid to Defendants’ description of anticipated testimony. The testimony in the blow up is part of the recorded testimony of Plaintiff’s treating physician Dr. Scott Mitchell which was later presented to the jury as part of their own case in chief. Appellants do not articulate how they were prejudiced by testi-
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mony from their own witness other than to complain they needed to move for the admission of one of their own exhibits prior to allowing the jury to view it when they used it to question Plaintiff. Requiring a party to follow proper procedure by laying a foundation for a document offered as part of proof in their case in chief and moving for its admission into evidence prior to allowing a jury to view it does not present reversible error. ¶43 They also claim there was reversible error due to the injection of argument during Defendants’ opening statement. Based upon the record citations for these alleged errors, the offending statements were, “Please don’t leave your common sense at the door when you come into this courtroom and decide the issues,” “Now, Dr. Smith and I trust you to lay sympathy aside. I anticipate there will be tears in this courtroom,” and, “We ask you to lay all sympathy aside, judge the facts as you see them from the witness chair.” Appellants’ objections to the first and third statements were sustained, and their objection to the second statement was overruled. Appellants did not request any admonishments or other corrective action by the trial court following its rulings. ¶44 Counsel have wide latitude in both opening statements and closing arguments, subject to the trial court’s control. Lerma v. WalMart Stores, Inc., 2006 OK 84, 148 P.3d 880. There must be a showing counsel’s conduct substantially influenced the jury’s verdict and/ or denied a fair trial. Id. ¶20, 885. A court abuses its discretion when it uses its discretion to an end or purpose justified neither by reason nor by evidence. Patel v. OMH Medical Center, Inc., 1999 OK 33 ¶ 20, 987 P.2d 1185, 1194, cert. denied, 528 U.S. 1188, 120 S.Ct. 1242, 146 L.Ed.2d 100 (2000). If it appears there has been misconduct in a trial, the aggrieved party may move the court to declare a mistrial, but by failing to do so “will be deemed to have taken his chances with the jury.” Lawton Transit Mix, Inc. v. Larson, 1969 OK 83, ¶0, 455 P.2d 696, 697. Appellants did not pursue any remedy to ameliorate the effect of the remarks, did not move for mistrial, and have not shown the remarks to have caused prejudice, influenced the jury’s verdict or denied them a fair trial. Reversal on this theory is denied. ¶45 Similarly, no reversible error is presented by the trial court’s refusal, following an objection by Defendants, to allow Plaintiff’s friend, Vol. 81 — No. 30 — 11/13/2010
Sherry Henley, to read a nurse’s note from her first hospitalization to the jury. Henley reviewed the record only after her deposition and the only reason given for allowing her to read the note was the alleged use of notations familiar to nurses. Although she was a registered nurse, Henley appeared as a fact witness who had seen Plaintiff only during her second hospitalization. She was not qualified as an expert, and was never a Mercy employee. Further, the medical records containing the nurses’ notes were not yet admitted into evidence at the time Appellants asked Henley to read them aloud to the jury. In support of this allegation of error, Appellants cite 12 O.S.2001 § 2401 and § 2402, which address the relevancy of evidence. That was not the issue regarding the nurses’ notes. Like with the testimony of Robert Tortorelli, the record was subject to a stipulation as to identification, but such a stipulation is not a waiver of the need to establish a proper foundation for admissibility or to move for admission of evidence prior to publishing it to a jury.21 ¶46 Appellants argue it was error to exclude from evidence the video deposition testimony of Jocelyn Nguyen, an IsoTis research associate, and the further use of the same video deposition to rebut Dr. Smith’s testimony.22 The trial court reviewed the testimony and determined it may have been relevant to products liability issues no longer part of the case but was not relevant to the informed consent issues being tried. “It is not error to refuse to admit evidence which does not prove or disprove any fact in issue in the trial of a lawsuit.” Marcum v. Zaring, 1965 OK 125, ¶0, 406 P.2d 970. 971. ¶47 Appellants argue medical records of Dr. Barney Blue23 and “Dr. King” should not have been admitted into evidence because they weren’t identified on witness lists before trial. A careful reading of the record shows Dr. Blue’s records were used for impeachment of Plaintiff’s descriptions of the health complaints and problems she attributed to the RSD and claimed resulted from surgery performed by Dr. Smith. ¶48 Prior inconsistent statements of a record may be used for impeachment of testimony given at trial, 12 O.S.Supp.2002 § 2613, and records may be used to refresh a witness’s memory on matters relating to direct testimony upon cross-examination, 12 O.S.Supp.2002 § 2612. That is what occurred here. After laying a foundation, Defendants’ counsel asked Plaintiff about Dr. Blue’s June 18, 1999 medical
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record listing complaints of fatigue, swollen feet and body, arm and leg pain, and “knots” in her arms and legs, all of which were complaints she testified were from RSD resulting from surgery. Contrary to Appellants’ claim these records were admitted into evidence, the record cited by them shows the trial court sustained an objection to records of a ‘Dr. King,” and did not allow his medical records to be used for impeachment purposes and, more importantly, Dr. Blue’s records also were not admitted into evidence. Further, several symptoms and problems Plaintiff attributed to RSD24 also are described in other medical records predating her surgery to which no objections were interposed. No error is presented in the use of Dr. Blue’s records for impeachment. ¶49 Appellants claim reversible error in the refusal to allow a wider range of testimony within the expertise of research scientist Tara Tabatabaie,25 who has a Ph.D. in chemistry. Prior to trial, Defendants filed a motion in limine asking, in part, for a prohibition of medical or other expert testimony not “within the expert’s realm of expertise,” and the trial court reserved the issue until trial. At trial, Defendants objected to allowing expanded testimony from Dr. Tabatabaie because she did not have a medical degree, she was not qualified to testify about medical causation, and her testimony, if allowed, would be cumulative because Dr. Hug covered medical causation about RSD. The trial court then limited her testimony to that “from her background as a chemist” about allergic reaction to bone putty. On this record, no reversible error is stated regarding that determination on the scope of her competence to testify. ¶50 Appellants argue the trial court allowed “rank hearsay” by Dr. Smith about bone putty manufacturing, a process it was not shown she had observed. Dr. Smith was asked for her “understanding” about how bone putty is manufactured and testified in response how “[t]he overall process, I understand, is they harvest bone steriley from cadaver bone that is then steriley processed down to the bone proteins only” into “basically a liquid or powder form” which is reconstituted into sheets or a matrix for use by surgeons like herself. Appellants did not object based upon hearsay but instead objected that she was “not qualified” to answer the question. This objection goes to witness competency. Reversal may not be obtained based on arguments and issues raised 2628
for the first time on appeal. Kepler v. Strain, 1978 OK 52, 579 P.2d 191. ¶51 Appellants argue it was error to exclude affidavits signed by Dr. Smith which were attachments to motions for summary judgment by IsoTis and Mercy, citing 12 O.S.Supp.2002 § 2613. At trial, they argued the affidavits were admissible as prior inconsistent statements by Dr. Smith. ¶52 The criteria for the admission of prior inconsistent statements to attack the veracity or credibility of a witness are governed by the 12 O.S.Supp.2002 § 2607 and § 2613. Before allowing evidence of a witness’s prior inconsistent statements, the trial court “must satisfy itself that the proffered testimony is sufficiently inharmonious with the declarant’s in-court testimony and is relevant to a non-collateral matter. A proper foundation must be laid before the extrinsic impeachment evidence may be admitted.” Crussel v. Kirk, 1995 OK 41, ¶8, 894 P.2d 1116, 1119. (Emphasis in original; footnotes omitted.) ¶53 Here, Appellants cross-examined Dr. Smith about alleged inconsistencies between statements in her affidavits and her trial testimony. For example, her August 30, 2007 affidavit, which was attached as an exhibit to IsoTis’s Motion for Summary Judgment, stated she “was familiar with, received, read, and understood” warnings for the bone putty “prior to” Plaintiff’s first surgery. She testified at trial how she had read those warnings but did not recall precisely when that occurred prior to Plaintiff’s first surgery. The trial court examined the affidavits and determined they were not inconsistent with Dr. Smith’s trial testimony. We agree, and find no reversible error is presented. Motion for Directed Verdict ¶54 Appellants argue the trial court erred as a matter of law in overruling their motion for a directed verdict made at the end of trial. Defendants argue denial of the motion was proper because the record contained evidence in their favor. ¶55 “We review the denial of a motion for directed verdict de novo.” Computer Publications, Inc. v. Welton, 2002 OK 50, ¶12, 49 P.3d 732, 735. As taught in Messler v. Simmons Gun Specialties, Inc., 1984 OK 35, ¶28, 687 P.2d 121, 130:
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When the trial court considers a demurrer to the evidence or a motion for directed verdict, it must consider as true all evidence and all reasonable inferences favorable to the party against whom the demurrer or motion is directed, and disregard any conflicting evidence which is favorable to the demurrant or movant. Either motion should be overruled in the absence of proof which tends to show any right to recover. ¶56 “’Informed consent,’ as it was adopted in Scott v. Bradford, [1980 OK 165], 606 P.2d 554 (Okla.1980), entails three basic elements: 1) nondisclosure, 2) causation, and 3) injury.” Smith v. Karen S. Reisig, M.D., Inc., 1984 OK 56, 686 P.2d 285, 288. “However, a physician has no duty to inform a patient of risks known by the patient.” Goss v. Oklahoma Blood Institute, 1990 OK CIV APP 14, ¶28, 856 P.2d 998, 1007 (citing Spencer By and Through Spencer v. Seikel, 1987 OK 75, ¶12, 742 P.2d 1126, 1129). ¶57 Dr. Mitchell, who treated Plaintiff for RSD, testified he did some research on the syndrome and from it concluded the most likely cause of Plaintiff’s RSD was the bone tumor itself. Plaintiff agreed that she knew allergic reactions were possible and gave Dr. Smith information about her own allergic reactions to iodine and penicillin. Appellants’ adult son testified in their case in chief that he heard Dr. Smith say, prior to the first surgery, “we’re going to remove this, and we’re going to put in this paste.” This evidence could be considered as evidence in defense of elements Appellants were required to prove and as supporting judgment for Defendants. There was not an “absence of proof” in Defendants’ favor, and it was for the jury to decide whether Appellants met their burden of proving all necessary elements for their cause of action. Jury Instructions ¶58 Appellants argue the trial court erred because, although it instructed the jury on the issue of informed consent, by instructing the jury on the issue of negligence the issue of informed consent was essentially removed from the jury’s consideration. Appellants not only did not object to the negligence instructions, they proposed these same instructions given the jury.26 Nothing in this record suggests a probability the jury was confused or misled and thereby reached a different result by the giving of the negligence instructions in conjuncVol. 81 — No. 30 — 11/13/2010
tion with the instruction on informed consent. No reversible error is presented. ¶59 Appellants also argue “in view of the evidence produced at trial of previous medical problems, the Court should have also given OUJI 4.10 on Aggravation of Pre-Existing Conditions.” The case was not pled or tried as a case for aggravation of a pre-existing condition and Appellants did not request such an instruction. “[B]y the standard announced in Woodall [v. Chandler Material Co., 1986 OK 4, 716 P.2d 652], there is not a probability that the jury would have reached a different result if it had been given an instruction on the aggravation of a pre-existing condition. Therefore, the trial court did not err by denying the injured party’s request to include OUJI-Civ. 4.10.” Berman v. Aramark Refreshment Services, Inc., 2008 OK 29, ¶24, 198 P.3d 877, 885. The same applies here. ¶60 Appellants further allege error in the trial court’s failure to adopt their Requested Instruction No. 1. This proposed instruction included allegations about the claims Plaintiff sought to add via the motion to amend the pleadings and gave Appellants’ version of the case issues. In arguing “[t]he trial Court failed to even apprise the jury of the issues they were to try by refusing Plaintiff’s (sic) Requested Jury Instruction No. 1,” Appellants overstate the duty of the trial court. The trial court has a “duty to instruct on the fundamental issues of a case,” however “[i]n giving instructions, the trial court is not required to frame issues, but it must state the law correctly.” Smicklas v. Spitz, 1992 OK 145, ¶11, 846 P.2d 362, 367. The proposed instruction would have served to confuse and mislead the jury about the issues in the case and it was properly rejected. ¶61 Appellants also claim it was error not to give requested instructions on Plaintiff’s “mental pain and suffering, past and future,” on her “loss of time,” and “loss of enjoyment of life” as elements in fixing her damages. The jury could not have been mislead by not being instructed in these elements for setting damages in light of the verdict in favor of Defendants. Any error was harmless. Conclusion ¶62 No reversible error has been shown with respect to the trial court’s determinations regarding admissibility or inadmissibility of evidence or testimony, the application of the learned intermediary doctrine, instruction of the jury, or the denial of Appellants’ eleventh-
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hour motion to amend the pleadings. The judgment entered on the jury’s verdict in favor of Defendants is AFFIRMED. BUETTNER, P.J., and HANSEN, J., concur. 1. Only Mr. Brooks entered an appearance as counsel on appeal. However, Robert P. Powell, also appeared as Plaintiffs/Appellants’ counsel at hearings on motions for summary judgment which resulted in judgments made a part of this appeal. According to Appellants’ reply brief, Mr. Powell “left right after thanksgiving (sic), 2007.” 2. Jamie K. Bruehl of Rife & Walter, LLP, Oklahoma City, Oklahoma, appeared as counsel for Oklahoma Orthopedics, Inc. at hearings on the motions for summary judgment resulting in judgments made a part of this appeal. 3. Appellants named several defendants who do not appear in this appeal. According to the record, GenSci Regeneration Laboratory Services, Inc., is the former name of GenSci OrthoBiologics, Inc., a Washington corporation, and The OrthoBiologics Technology Company is a trade name for GenSci Regeneration Sciences, Inc., a Canadian corporation, (collectively, the GenSci defendants). In late 2001, GenSci Regeneration Sciences, Inc. and GenSci OrthoBiologics, Inc. filed for bankruptcy, but those proceedings were dismissed in late July of 2003, conditioned upon approval by shareholders or a final Canadian court order of a merger agreement between GenSci Regeneration Sciences, Inc. and IsoTis, S.A., a Swiss corporation. Subsequently, the following occurred: (1) Appellants dismissed without prejudice their causes of action against the GenSci defendants, (2) GenSci Regeneration Sciences, Inc. changed its name to SMC Ventures, Inc., (3) IsoTis, and GenSci OrthoBiologics merged to form IsoTis OrthoBiologicals, Inc., (4) Appellants were granted leave to amend their petition to again name as defendants the GenSci defendants, and (5) Appellants were granted leave to amend their petition to add IsoTis OrthoBiologics, Inc., IsoTis, S.A., and SMC Ventures, Inc. as defendants. 4. Initially, Oklahoma Orthopedics disclaimed any liability for Dr. Smith’s medical practice. Dr. Smith’s office is the same building as Oklahoma Orthopedics, it processed her billing, and she appeared in an Oklahoma Orthopedics brochure which Plaintiff testified she obtained during her visit. Oklahoma Orthopedics remained a named defendant throughout the litigation. 5. An allograft is tissue from another person. The allograft bone putty in this case was made from demineralized bone tissue IsoTis obtained from an American Associations of Tissue Banks accredited tissue bank. 6. Cellulitis is an “[i]nflammation of cellular or connective tissue.” Stedman’s Medical Dictionary, 273 (25th ed., 1990). 7. Dr. Mitchell also treated Plaintiff for pain radiating from her neck, which he described, in a video deposition played for the jury at trial, as having “nothing to with the RSD.” Plaintiff also received “medical management,” i.e., prescriptions, for pain management from Dr. Bruce Mackey. 8. Appellants’ initial petition also named as defendants McBride Clinic Incorporated, Howmedica Osteonics, Stryker Corp., and Stryker Sales Corporation. The claims against these four defendants were dismissed without prejudice within the first six months this lawsuit was pending. 9. IsoTis also filed an earlier motion for summary judgment, on July 21, 2006, which was granted as to the plaintiffs’ breach of implied warranty of merchantability claims and denied as to claims based upon defects in manufacturing of the bone putty and in the warning. A journal entry was filed December 17, 2007. The appeal does not address this 2007 order. 10. According to the trial court and Appellants’ counsel, no issue of battery was alleged or pled because of the one-year statute of limitations for such a cause of action. Appellants also presented some testimony from Plaintiff about the condition of her right leg at the time of her discharge following the first surgery. 11. Recognized exceptions to the learned intermediary doctrine itself, such as warnings required for mass immunizations or when the federal Food and Drug Administration has mandated direct warnings be given to consumers, are not at issue here. 12. Similarly, a “knowledgeable user” exception is recognized in some cases. The rationale with such knowledgeable users is that “knowledge of the danger is equivalent to prior notice.” Billiar v. Minnesota Mining and Manufacturing Company, 623 F.2d 240, 243 (2nd Cir. 1980). This is so because “[n]o one needs notice of that which he already knows.” Borowicz v. Chicago Mastic Company, 367 F.2d 751, 758 (7th Cir. 1966).
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13. According to an exhibit to IsoTis’s reply to Appellants’ response to their motion for summary judgment, when asked at deposition if the phrase “really is not clear,” Dr. Smith replied “I don’t know what else I would expect it to say.” She also testified she was aware of the content of the Directions for Use which contained the warnings prior to when she used the bone putty for Plaintiff’s surgery. 14. Mercy also distinguishes an Ohio case, Saylor v. Providence Hospital, 113 Ohio ApP.3d 1, 680 N.E.2d 193 (1996), relied upon by Plaintiffs, which turns upon an Ohio statute imposing supplier liability based upon negligence or supplier misrepresentations and independent supplier liability for failing to warn of a lack of FDA approval of a device. There is no similar statute here and these theories of liability are not applicable to the facts of this case. 15. For example, Dr. Hug testified in his April 15, 2008 deposition as follows: Q. Did you find any departures whatsoever of Dr. Smith from acceptable standards of care with respect to what you may think they are for an orthopedic surgeon? A. No, I did not. Dr. Hug’s only standard of care “criticism” of Mercy at that time was a speculation, based upon his own experiences prior to retiring from his thoracic and vascular surgery clinical practice in 1987, that some surgeon who may have been associated with Mercy might have recommended the bone putty to Smith. When asked if, other than this “potential criticism,” he had “no other criticisms whatsoever of Mercy Hospital and its employees or agents; correct?” He replied, “Correct.” 16. It is unclear whether the deposition was provided earlier and Dr. Hug either did not read it or he read it and did not recall the facts he later cited as a basis for his premature discharge standard of care criticisms. 17. We say “facilitated” because the record contains evidence the resident discharged Plaintiff as a result of an order or instructions from Dr. Smith. According to statements by Appellant’s counsel at hearing on May 16, 2008, his office’s records indicate they had earlier provided the transcript to Dr. Hug, but if he received it, he lost it when he moved. 18. Appellants’ counsel, in an apparent effort to rebut the allegation of prejudice, in fact buttressed the Defendants’ claim of a lack of diligence by stating, “It’s always been in the record. They had them for years. They have always known about it. I didn’t know about it.” (Emphasis added.) 19. Appellants’ cite for this proposition 12 O.S.2001 §§ 2401 and 2402, which address relevance. Relevance was not the issue when the testimony was proposed. We address the reasons and argument which were presented to the trial court. 20. According to his testimony, Mr. Tortorelli is a surface water hydrologist with a doctorate in civil engineering. Some medical records listed no diagnosis and only reflected the services provided and the dates of services. Other medical records contained diagnostic codes or labels. Some of these medical records indicated RSD as a diagnosis but some also listed an additional diagnosis for medical conditions not claimed to relate to this litigation, i.e., pain management records for RSD and for cervical disc disease and lumbar disc disease. Some bills were for pain management but included a diagnosis that Plaintiff’s RSD was “in remission.” The records were all admitted into evidence for the jury’s consideration. 21. In the trial transcript, Appellant’s counsel indicated he would make an offer of proof, and then he stated simply: “The offer of proof is page 13 of Plaintiffs’ Exhibit No. 8.” We need not address this offer. This page, which contains two nurses’ notes, later was admitted into evidence as part of Plaintiffs’ Exhibit No. 8. 22. Appellants’ argument the testimony would rebut testimony by Dr. Smith “after she testified that the antigenic reaction that the package insert [warns about] was a good thing and desirable” mis-characterizes that testimony. While asking Dr. Smith, about reactions to the bone putty and if it was a “good thing” to induce a reaction, she replied: “To have an osteoinduction [bone formation stimulating] process, yes. To have an adverse antigenic reaction, no.” 23. Plaintiff identified Dr. Blue as a doctor who had manipulated her back due to pain. She did not recall seeing a “Dr. King.” 24. When asked about what problems she attributed to RSD, Plaintiff listed swollen feet, severe pain, lack of sleep, stinging, burning, problems walking (having to use a cane or walker) and digestive system problems due to pain medications. The conditions and symptoms present prior to surgery included pain unresponsive to medication, fatigue, joint pain, joint stiffness and swelling, muscle cramps and pain, back pain, difficulty walking, depression, and numbness or tingling. 25. At the hearing on motions in limine, Appellants’ counsel advised she would testify the bone putty was unreasonably dangerous because it was not tested for bone marrow. The trial court found she was qualified to testify about what can cause allergic reaction and
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about antigens but not about medical causation and diagnosis of Plaintiff’s condition or about danger because that was part of the former product liability cause of action and it was not relevant to informed consent. 26. Nor, strictly speaking, is an error of law presented. A claim based on lack of informed consent is “a cause of action sounding in negligence” for breach of a duty. Scott v. Bradford, 1979 OK 165, ¶11, 606 P.2d 554, 557.
2010 OK CIV APP 106 IN RE THE MARRIAGE OF BOECKMAN. MELODY BOECKMAN, Petitioner/ Appellee, vs. BRIAN BOECKMAN, Respondent/Appellant. No. 106,442. September 17, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE CARL FUNDERBURK, JUDGE AFFIRMED N. Scott Johnson, Tulsa, Oklahoma, for Petitioner/Appellee, C.W. Daimon Jacobs, Tulsa, Oklahoma, for Respondent/Appellant. Kenneth L. Buettner, Presiding Judge: ¶1 Respondent/Appellant Brian Boeckman (Husband) appeals from a September 24, 2008 judgment finding Husband guilty of indirect contempt for failure to pay alimony and attorney fees awarded to Petitioner/Appellee Melody Boeckman (Wife) in a temporary order in the parties’ divorce proceeding. After Husband filed this appeal from the contempt judgment, Husband and Wife entered an agreed dissolution decree in which they agreed that the contempt judgment would not merge into the decree. The record supports the trial court’s finding of clear and convincing evidence that Husband wilfully refused to pay a lawful order. We affirm the judgment. ¶2 Wife filed her Petition for Dissolution of Marriage January 5, 2005. Wife filed an Application for Citation for Contempt August 6, 2008, in which she asserted that since the December 20, 2006 temporary order, Husband had failed to pay any of the amounts ordered. Wife charged that Husband owed $90,000 in temporary support alimony and $2,000 in temporary attorney fees. Wife contended that Husband had the ability to pay and had willfully refused to pay. The certificate of service indicates the application was hand-delivered to Husband in the Tulsa County Courthouse.1 The trial court docket sheet indicates that on August 6, 2008, Husband was served with “paperwork Vol. 81 — No. 30 — 11/13/2010
from” Wife in open court, Husband was arraigned that day on the contempt charge, he entered a not guilty plea, and requested a jury trial. The docket entry for that date shows the trial on contempt was set for August 28, 2008. ¶3 Husband filed a Motion to Dismiss August 28, 2008. Husband asserted the court was without jurisdiction because no “citation” had been filed. Husband also asserted that “(f)ollowing the 12-20-06 hearing (Wife) failed to memorialize the courts orders, . . . .” Husband also claimed that in her application, Wife failed to allege Husband acted wilfully. Husband finally asserted Wife’s Application for Contempt Citation included nothing more than Wife’s “recall and representations” of the December 2006 temporary order, which Wife failed to file or serve on Husband.2 ¶4 Hearing on the contempt application was also held August 28, 2008. Husband repeated his complaint that no citation had been filed, but the trial court responded that Husband had been “nearly impossible” to locate and had been evasive. The court noted Husband was on notice of the hearing. The court directed the Temporary Order to be filed.3 ¶5 At the hearing, Wife testified she was present in court December 20, 2006 when the court directed Husband to pay temporary alimony and attorney fees. Wife testified she had received no money from Husband since then. Wife also testified that she did not have health insurance after December 2006. Wife denied stealing artwork or other property of Husband while he was in jail. Wife asserted Husband wrote to her from jail and told her to take what she needed to support herself. Wife agreed she sold marital property worth $970 after the temporary order. ¶6 Husband also testified at the hearing. Husband agreed he was present with counsel at the December 20, 2006 temporary order hearing, “but I don’t remember what the hearing was.” At the contempt hearing, he testified he was then living in Broken Arrow in a duplex with his girlfriend. His monthly rent was $700750 per month, and his friend Ronald James Abercrombie gave him the money to pay the rent each month.4 Husband thought Abercrombie also paid the retainer for Husband’s attorney in the divorce case. Husband testified he had another attorney for his criminal case, and Husband’s father paid the criminal defense attorney $100,000. Husband testified he had
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paid a third lawyer since December 2006, “because I was getting sued everywhere.” Husband believed his father and Abercrombie paid that attorney on his behalf. Husband testified he probably had not asked his father or Abercrombie to pay the support alimony due under the temporary order. Husband testified he was released from jail in February or March 2008 and he remained unemployed, stating he did not have time to search for a job due to hearings and meetings with his lawyers. Husband testified he purchased groceries each month with money wired to him from Abercrombie. Husband testified he did not know what assets he owned. Counsel for Wife offered a 2004 financial statement which he asserted had been admitted at the temporary order hearing. Husband recognized the document. Husband agreed the financial statement showed that his net worth was then more than $15,000,000. Husband testified he had not paid the attorney fees ordered nor Wife’s health insurance because he was in jail.5 Husband denied receiving income from any source but Abercrombie. Husband testified that “a couple of times” Abercrombie had given Husband money to help pay for Husband’s girlfriend’s legal expenses. ¶7 Husband testified that in the temporary order, the court awarded Wife possession of two pieces of property: the marital home (which later was subject to foreclosure), and a home in Broken Arrow, which was debt-free. Husband testified that he had several judgments entered against him since the time of the temporary order and had not paid those. Husband testified he had sued Wife and other employees for taking things from his office while he was in jail. Husband testified Wife and others took 200 pieces of art that he had gotten from thrift stores and antique stores. Husband testified the artwork was worth $400,000 to $600,000, but Husband had not insured the art. Husband testified he did not know or did not recall whether he told Wife to sell things from his office. Husband agreed that Wife’s Exhibit 1 was a letter he wrote telling Wife she could get things from his office “for survival.” Husband testified he did not remember that. Husband testified he and Wife may have owned the artwork jointly, “I guess because it was part of the marital [estate].” ¶8 Wife asked for judgment for $92,000. Husband asked for an offset and contended he did not have the ability to pay and therefore there 2632
was no evidence of wilful failure to pay as required for contempt. The trial court announced that it found there was a temporary order hearing December 20, 2006, at which Husband was directed to pay $4,500 per month beginning January 1, 2007, as well as continue to provide health insurance for Wife and pay $2,000 for her attorney fees. ¶9 The court then addressed the issue of wilfulness. The court noted that despite not being employed, Husband was able to pay rent, maintain a car, post bond on a first-degree murder complaint, hire a criminal defense lawyer, and pay his girlfriend’s attorney. The trial court was “not convinced that he doesn’t have the money.” The court found Husband’s decision to pay for other things but not pay temporary support to Wife was clear and convincing evidence that Husband acted wilfully. The court found Husband was in indirect contempt of court and awarded judgment to Wife of $91,515. The court sentenced Husband to 6 months in the county jail, which was stayed for 60 days in which Husband could purge the debt. ¶10 Husband filed his Petition in Error October 24, 2008, in which he appealed the September 24, 2008 contempt judgment. The trial court docket indicates Husband was jailed for contempt in October 2008 and was released from custody December 1, 2008. After Husband filed his Petition in Error, but before the appeal was assigned to this court, the trial court approved the parties’ Agreed Decree of Dissolution of Marriage, which was filed November 3, 2009. ¶11 This appeal was assigned to this court March 31, 2010. The errors alleged in Husband’s Brief relate to the propriety of the September 2008 Journal Entry. Because the parties have settled the issues in the dissolution proceeding, this court issued an order directing Husband to show cause why this appeal should not be dismissed as moot. Husband responded that the parties had included the following provisions in the decree: 6. That (Wife) and (Husband) understand and agree that the judgment on appeal to the Supreme Court in [this case] shall not be dismissed and shall be maintained until the Supreme Court decides the judgment and issues on appeal, however, (Husband) will be paying at the (sic) $2,000.00 a month until the issues and judgments are either changed, reversed, modified, and or (sic)
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affirmed by the decisions of the Supreme Court or higher courts. *** 14. That (Wife) and (Husband) have agreed that as to the findings, decisions and judgments rendered by this court on 08-28-2008 on appeal to the Oklahoma Supreme Court . . . , wherein among other things (Husband) was found guilty of indirect contempt of court and (Wife) was awarded a judgment against (Husband), those findings, issues, decisions and judgments now on appeal shall continue until (Husband) has exhausted all his remedies and or (sic) until the findings, decisions and judgments rendered by this court on 08-28-2008 have been reversed, set aside, modified in part by, the appeals court and or (sic) affirmed by the Oklahoma Supreme Court, and or (sic) mandated to this Court. 15. That (Wife) and (Husband) have agreed that as of June 10, 2009 the balance of that judgment is $90,238.00 and each has agreed that (Husband) shall pay $2,000.00 monthly to (Wife) beginning June 20, 2009 and continuing each month . . . pending the final resolution of the issues on appeal in [this appeal]. 16. That (Wife) and (Husband) have agreed that as of June 10, 2009 the court may continue to set review dates of the contempt sentencing of (Husband) on 08-28-2008, now on appeal . . . and will withhold further execution on that sentence until such time as the court reviews whether or not (Husband) is complying with this agreement and what will likely be the court[‘]s order. ¶12 We agree with Husband that the parties contractually agreed for the temporary orderrelated contempt judgment not to merge with the decree.6 Husband’s Petition in Error was timely filed and we consider the merits of his appeal. ¶13 “Indirect contempts of court shall consist of willful disobedience of any process or order lawfully issued or made by court; . . . .” 21 O.S.2001 §565. Indirect contempt must be shown by clear and convincing evidence. “. . . (A)wards for alimony . . . temporary or permanent, . . . are excluded from the definition of ‘debt’ . . . [and] may be enforced by contempt because of express statutory authority.” Potter Vol. 81 — No. 30 — 11/13/2010
v. Wilson, 1980 OK 51, 609 P.2d 1278, 1281. Potter also held that court-ordered attorney fees in divorce cases also may be enforced by contempt. Id. More recently, the Oklahoma Supreme Court has affirmed that wilful disobedience of an order to pay temporary alimony constitutes indirect contempt of court. Sommer v. Sommer, 1997 OK 123, ¶8, 947 P.2d 512. ¶14 Husband’s first claim of error is that the trial court should have granted Husband’s motion to dismiss the contempt proceeding because no citation was issued. We have not found authority requiring a court-issued “citation” for indirect contempt. Instead, what is required is a written complaint alleging each of the elements of indirect contempt. 21 O.S.2001 §567(A); Webber v. Webber, 1936 OK 720, 62 P.2d 490, 178 Okla. 174. In this case, Wife’s application asserted that Husband had failed to pay the amounts due under the temporary order and that his failure to pay was wilful. Wife served the application on Husband by handdelivering it to him. We find no error in refusing to dismiss the proceeding on this ground. ¶15 Husband’s second proposition of error is nearly identical to his first. He repeats his claims that the trial court was without subject matter jurisdiction because Wife’s application was insufficient, Husband did not receive summons, and the temporary order was not filed before the contempt proceeding. We have found that Wife’s application properly alleged the grounds for a contempt citation. Husband received the application in open court; he was arraigned and entered a plea; and Husband appeared with counsel at the hearing on Wife’s application. Husband clearly was on notice of the contempt proceeding. And, the trial court noted then that Husband had been elusive and avoided providing his address. Husband testified that he was in court with counsel at the time the temporary order was announced. We therefore find no support for Husband’s claim that he was not on notice of the temporary order. In a dissolution proceeding, the court’s orders are enforceable when pronounced.7 Support alimony becomes a vested right as each payment becomes due. Nantz v. Nantz, 1988 OK 9, ¶ 10, 749 P.2d 1137, 1140. For these reasons, we find the temporary order was a lawful order of the court since its pronouncement, as required for a contempt finding. ¶16 Husband’s final assertion of error is that he was entitled to a setoff of the value of property he alleged Wife took from him while he
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was in jail on another matter. The testimony on this issue was disputed, both as to the amount and value of the property and as to whether Wife acted with Husband’s consent. Wife presented evidence in the form of a letter from Husband telling her to take what she needed to survive. And, Husband agreed the property may have been marital. Competent evidence supports the trial court’s decision not to allow a setoff as requested by Husband. ¶17 Clear and convincing evidence showed that Husband wilfully disobeyed a lawful order of the court. As a result, the September 28, 2008 Journal Entry is AFFIRMED. HANSEN, J., and HETHERINGTON, J., concur. 1. Husband’s brief admits the application was delivered in open court while he was there for a pre-trial conference in this case. 2. In his Motion to Dismiss, filed the morning of the hearing, Husband did not request additional time to prepare, nor request a jury trial. He did request a jury trial at his arraignment August 6, 2008, and the jury fee was to be paid by August 15, 2008. There is no indication the jury fee was paid, and Husband raised no objection to proceeding in a non-jury trial. The court denied the Motion to Dismiss before proceeding with the contempt hearing. 3. The December 20, 2006 Temporary Order was not filed until August 28, 2008. It provides that a hearing on Wife’s Application for Temporary Relief was held December 20, 2006, at which time both parties were present with counsel. The order noted that the court reviewed the court file and heard testimony of two witnesses. The court awarded Wife temporary possession of the marital home and certain rental property; each party remained in possession of their current cars. The order directed Husband “to maintain the current arrangement for health insurance” for Wife. The order next directed Husband to pay support alimony of $4,500 per month beginning January 1, 2007, until further order of the court. The court also directed Husband to pay the tax due on the marital home and to pay temporary attorney fees of $2,000 on or before January 15, 2007. The Temporary Order was signed by the trial court August 28, 2008. The order was also signed by Wife and her counsel. Above the signature line for Husband, there is a written notation “waived by court.” 4. Husband indicated Abercrombie is the trustee of the Boeckman Family Trust. 5. Husband asserted in various filings that he was incarcerated from January 19, 2007 until either February or March 2008. 6. Title 10 O.S.2001 §110(B) provides that a temporary order terminates when a decree is entered, but that the trial court may retain jurisdiction to rule on an application for a contempt citation for violations of a temporary order. 7. See 12 O.S.2001 §696.2, which provides, in part: E. A judgment, decree or appealable order, whether interlocutory or final, shall not be enforceable in whole or in part unless or until it is signed by the court and filed; except that the adjudication of any issue shall be enforceable when pronounced by the court in the following actions: divorce; separate maintenance; annulment; post-decree matrimonial proceedings; paternity; custody; adoption; termination of parental rights; mental health; guardianship; juvenile matters; habeas corpus proceedings; or proceedings for temporary restraining orders, temporary injunctions, permanent injunctions, conservatorship, probate proceedings, special executions in foreclosure actions, quiet title actions, partition proceedings or contempt citations.
2010 OK CIV APP 111 GEFCO and FIDELITY and GUARANTY INSURANCE COMPANY, Petitioners, v.
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MURLYN POOL and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 108,326. September 17, 2010 PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT SUSTAINED Chad R. Whitten, THE WHITTEN LAW FIRM, Jenks, Oklahoma, for Petitioner, J.L. Franks, Daniel M. Phillips, FRASIER, FRASIER & HICKMAN, L.L.P., Tulsa, Oklahoma, for Respondents. CAROL M. HANSEN, JUDGE: ¶1 Claimant, Murlyn Pool, had worked for Employer, Gefco, for 43 years as a welder. He injured his lumbar back while catching a welding jig on April 29, 2009. He did not immediately notify Employer of the accident or his injury. He continued working, but his back worsened, and because of the pain and loss of motion, he could no longer do his job. He notified Employer of his injury on June 30, 2009. He filed a Form 3 on July 22, 2009. He was evaluated soon thereafter by Dr. B. ¶2 Employer answered, alleging Claimant did not sustain an accidental injury arising out of and in the course of his employment. Thereafter, Claimant filed a Form 9 seeking temporary total disability and referral to a board certified spine specialist for diagnostics and treatment on the recommendation of Dr. B. ¶3 On July 28, 2009, Dr. B filed his letter and report finding, among other things, hypertrophy of the facet joints and underlying posterior spurring and disc bulge and restricted range of motion. He reviewed Claimant’s medical records. In his opinion Claimant was temporarily totally disabled and had been since June 30, 2009. He took into consideration that Claimant had a prior work-related injury to his back at a different location on his spine, from which he had excellent recovery. It was his opinion the employment-related activities Claimant performed with Employer were the major cause of his current injury and need for treatment to his lumbar spine. It was his recommendation Claimant be referred to a board-certified spine specialist for further evaluation, diagnostic testing and treatment as medically indicated. He stated clearly Claimant’s injury arose
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out of and was the direct result of his workrelated activity. ¶4 At trial, Claimant testified he was not having any problems with his low back prior to the current injury. He testified to pain in his back radiating down his left leg and into his foot. If he bent his back or turned a certain way he had severe pain. The court asked him why he did not notify Employer on the day he was hurt. He said he wanted to keep working. He said if his back got better with treatment, he would like to go back to work. ¶5 The trial court found work-related injury to Claimant and temporary total disability and granted relief in the nature of treatment by a physician selected by Employer. On appeal by Employer, the Three-Judge Panel modified the trial court’s order by adding a statement that Claimant overcame the presumption of nonwork related injury by a preponderance of the evidence. Employer seeks review of the order. ¶6 Employer argues in his brief only that Claimant presented no evidence to overcome the presumption of no injury. 85 O.S.2001 §24.2(A) provides: Unless an employee or former employee gives oral or written notice to the employer within thirty (30) days of the date an injury occurs or the employee receives medical attention from a licensed physician during the thirty-day period from the date an injury occurred, the rebuttable presumption shall be that the injury was not work related. Such presumption must be overcome by a preponderance of the evidence. ¶7 A workers’ compensation claimant has the burden of proving that an injury occurred in the course of employment and arose out of claimant’s employment. Superior Stucco v. Daniels, 1995 OK 127, 912 P.2d 317. This burden must be met by a preponderance of the evidence. See, Newquist v. Hall Building Products, Inc., 2004 OK CIV APP 92, 100 P.3d 1060. The Oklahoma Supreme Court dealt extensively with this issue in Davis v. Southwestern Bell Telephone, 2006 OK 48, 139 P.3d 892. In that deci-
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sion the Court affirmed a trial court’s finding the presumption had not been overcome by a preponderance of the evidence. In so doing, it commented that burden was no different than the burden imposed on a party to prove its case. It stated: Rebutting the presumption in §24.2(A), however, does not place any additional burden on the claimant seeking to prove a workers’ compensation claim. Any claimant seeking to recover under the Workers’ Compensation Act is required to prove, by a preponderance of the evidence, that the injury is work related. The statutory presumption changes nothing. Presumptions shift the burden of proof. The existence of a presumption imposes on the party against whom it is invoked the duty to offer evidence to the contrary. (citation omitted) If the opponent does offer evidence to the contrary, the presumption disappears and the case stands upon the facts and the reasonable inferences to be drawn therefrom. Section 24.2(A), however, places the burden of proof on the person who has that burden already. Thus, Section 24.2 only requires a claimant to do what he or she is already required by law to do. ¶8 This Court’s power is still to determine whether the panel’s order is supported by competent evidence. Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548. The panel found Claimant overcame the §24.2 presumption by a preponderance of the evidence and his injuries were work-related. The standard of our review remains unchanged. ¶9 Claimant’s testimony as well as Dr. B’s report is competent evidence to support the panel’s finding Claimant rebutted the presumption of §24.2. Davis v. Southwestern Bell Telephone, Id. ¶10 SUSTAINED BUETTNER, P.J., and HETHERINGTON, J., concur.
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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS SUMMARY OPINION Wednesday, October 13, 2010 F-2009-771 — Walter Randolph Friedhofen, Appellant, was tried by jury on three counts of sexual abuse of a minor child in violation of 10 O.S.Supp.2007, §7115, in Wagoner County District Court case number CF-2008-146, before the Honorable Michael Norman, District Judge. The first two counts alleged that he abused K.F. and the third count alleged that he abused L.F. The jury found Friedhofen guilty on the first two counts and not guilty on the third count. The jury set punishment at thirty years (30) on each count. The trial court sentenced Friedhofen in accordance with the jury verdict, ordering that the sentences be served consecutively. From this judgment and sentence, Walter Randolph Friedhoffen has perfected his appeal. AFFIRMED Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Smith, J., Concurs. C-2010-21 — Petitioner, Morgan Lee Mitzner, entered blind pleas of guilty in two different cases in Delaware County. In case number CF-2009-252C, Mitzner pled guilty to second degree burglary in violation of 21 O.S.2001, §1435, and in case number CF-2009-253B, Mitzner pled guilty to second degree burglary after former conviction of two or more felonies before the Honorable Robert G. Haney, District Judge. The trial court sentenced Petitioner to five (5) years and thirty (30) years respectively to be served consecutively. Petitioner, through counsel, filed a motion to withdraw plea. A hearing was held on the motion, and the trial court denied the motion. From this judgment and sentence, Morgan Lee Mitzner has perfected his appeal. The Judgments and Sentences of the trial court are AFFIRMED. Petitioner’s Application for Writ of Certiorari is DENIED.Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Smith, J., Concurs. PCD-2007-1262 — Kendrick A. Simpson, Petitioner, was tried by jury and convicted of First Degree Murder with Malice Aforethought (Counts I and II), Discharging a Firearm with 2636
Intent to Kill (Count III) and Possession of a Firearm After Former Conviction of a Felony (Count IV) in the District Court of Oklahoma County, Case No. CF 2006-496. The jury found Simpson guilty on each count charged and assessed punishment at death on Counts I and II, life imprisonment on Count III and ten years imprisonment on Count IV. The trial court sentenced Simpson accordingly. Simpson appealed his convictions to this Court in Case No. D-2007-1055 and we affirmed his Judgment and Sentence. Simpson is now before this Court on an application for post-conviction relief and motion for evidentiary hearing. Simpson’s Application for Post-Conviction Relief and Motion for Evidentiary Hearing are DENIED. OPINION BY: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs in Results; Lewis, J., Concurs; Smith, J., Concurs. PCD-2010-407 — Wade Green Lay, Appellant, was tried by jury and convicted of Count 1: First Degree Murder and Count II: Attempted Robbery with a Firearm, in Tulsa County District Court Case No. CF-2004-2320. The jury found Appellant guilty and set punishment of death for Count I and twenty-five (25) years’ imprisonment for Count II. The Honorable Tom C. Gillert followed the jury’s sentencing recommendation. This Court affirmed Lay’s convictions and sentences. Lay filed an application for capital post-conviction relief. This was denied by this Court. Lay filed a Second and Subsequent Post-Conviction Application and Request for Evidentiary Hearing. The Second Application for Post-Conviction Relief is DENIED. The Request for Evidentiary Hearing is DENIED. OPINION BY: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Lewis, J., Concurs; Smith, J., Recused. Thursday, October 14, 2010 F-2010-998 — Donald Ray Wackerly II, Appellant, was tried by jury for the crime of First Degree Murder, in Case No. CF-1996-349 in the District Court of Sequoyah County. The jury returned a verdict of guilty and recommended as punishment death. The trial court sentenced accordingly. Wackerly has challenged his Judg-
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ment and Sentence on direct appeal, in collateral proceedings in this court, and in habeas corpus proceedings in federal court, all have been denied. Now before this Court is Wackerly’s Third Application for Post-Conviction Relief and Motion for Stay of Execution. The Application for Post-Conviction is DENIED. The Motion for Stay of Execution is DENIED. OPINION BY: A. Johnson, V.P.J.; C. Johnson, P.J., Concurs; Lumpkin, J., Concurs; Lewis, J., Concurs; Smith, J., Not Participating. Monday, October 18, 2010 M 2009-0727 — Following a jury trial June 10, 2009, Appellant, Paula Ruthann Mitchell, was found guilty in the District Court of Okmulgee County, Case No. CM-2008-406, of Count 1 — Assault on Police Officer, a misdemeanor, in violation of 21 O.S. 2001, § 649(A), and Count 2 — Resisting an Officer, a misdemeanor, in violation of 21 O.S. 2001, § 268. The Honorable Cynthia D. Pickering, District Judge, sentenced Appellant August 4, 2009, to thirty days on Counts 1 and 2 and a fine of $250.00 on each count. Appellant appeals from the Judgment and Sentence imposed. Judgment and Sentence AFFIRMED. OPINION BY: Lumpkin, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lewis, J., Concur; Smith, J., Concur. Tuesday, October 19, 2010 C-2009-1169 — Jeff Ellis Barnett, Appellant, pled guilty to Failure to Comply with the Sex Offender Registration Act in Case No. CF-20081226, in the District Court of Oklahoma County. He was sentenced to five (5) years imprisonment, suspended. After a hearing, Barnett’s motion to withdraw his plea was denied. From this judgment and sentence Jeff Ellis Barnett has perfected his Petition for Writ of Certiorari. The Judgment and Sentence of the District Court of Oklahoma County is AFFIRMED. OPINION BY: Smith, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis J., Concur. F-2010-310 — Beverly Ann O’Regan, Appellant, was tried by jury for the crime of Obtaining a Controlled Substance (Hydrocodone) by Forgery/Fraud in Case No. CF-2008-776, in the District Court of Kay County. The jury returned a verdict of guilty and recommended as punishment One (1) year imprisonment and a fine of $5,000.00, and costs and $100.00 Victim’s Compensation Assessment. The trial court senVol. 81 — No. 30 — 11/13/2010
tenced accordingly. From this judgment and sentence Beverly Ann O’Regan has perfected her appeal. AFFIRMED OPINION BY: Smith, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur in Results. Wednesday, October 20, 2010 F-2009-1140 — Brian K. Johnson, Appellant, was tried by jury for the crimes of Rape in the First Degree (Count I), Forcible Oral Sodomy (Count II), and Assault and Battery by Means Likely to Cause Death (Count III) in Case No. CF-2008-6677, in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment life imprisonment without parole on Count I, twenty (20) years imprisonment on Count II, and life imprisonment on Count III, with sentences to be served consecutively. The trial court sentenced accordingly. From this judgment and sentence Brian K. Johnson has perfected his appeal. AFFIRMED. Opinion by: Smith, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. Monday, October 25, 2010 M-2009-63 — On September 11, 2007, Appellant was found guilty after a jury trial of Threatening to Perform an Act of Violence (Misdemeanor) in Adair County Case No. CM2007-76. Appellant was sentenced to ninety (90) days in the county jail. From this judgment and sentence Appellant appeals. Appellant’s conviction is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J.; Concurs; Lumpkin, J.; Concurs in Results; Lewis, J.; Concurs; Smith, J.; Concurs. COURT OF CIVIL APPEALS (Division No. 2) Friday, October 22, 2010 108,405 — Perry L. Jones, III, Individually and on behalf of all similar situated tipped hourly employees of defendant, Plaintiff/ Appellant, vs. OS Restaurant Services, Inc., Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Dana Kuehn, Trial Judge. Appellant (Employee) seeks review of the trial court’s order granting summary judgment in favor of Appellee (Restaurant) in Employee’s action for underpayment of minimum wage. At issue is whether Restaurant is an employer as defined in the Oklahoma Minimum Wage Act, 40 O.S.2001
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§197.4(d). The second paragraph of the subsection excludes from the Act’s application “employers subject to the Fair Labor Standards Act of 1938, as amended, and who are paying the minimum wage under the provisions of said act.” As an enterprise engaged in interstate commerce with gross sales exceeding $500,000.00 per year, Restaurant is subject to the Fair Labor Standards Act (FLSA). Restaurant is paying the minimum wage of $2.13 plus tip credit as required by the FLSA. Therefore, Restaurant is excluded from the application of the Act. The trial court’s judgment is AFFIRMED. Opinion by Hansen, P.J.; Hetherington, J., and Mitchell, J., (sitting by designation), concur. (Division No. 2) Wednesday, October 13, 2010 107,867 — Midwest City/Del City Schools, Own Risk # 16102 Insurance Carrier, Petitioners, vs. Regenia K. Simpson and The Workers’ Compensation Court, Respondents. Proceeding to review an Order of a Three-Judge Panel of The Workers’ Compensation Court, Hon. John M. McCormick, Trial Judge, that vacated the trial court’s order and found that the injury suffered by Claimant arose out of, and was sustained in, the course of her employment. The undisputed evidence in this case is that Claimant fell in Employer’s parking lot during a normal lunch break, approximately one minute after leaving her desk. The facts and circumstances surrounding Claimant’s injury are analogous to those in Turner v. B Sew Inn, 2000 OK 97, 18 P.3d 1070, and support a finding that her presence in the parking lot was employment related and her injury arose out of and in the course of her employment. SUSTAINED. Opinion from Court of Civil Appeals, Division II by FISCHER, P.J.; WISEMAN, C.J., and BARNES, J., concur. Friday, October 15, 2010 106,489 — Stacy Lynn Haag, Petitioner/ Appellee, vs. Ronald Gene Haag, Respondent/ Appellant. Appeal from Order of the District Court of Blaine County, Hon. Mark A. Moore, Trial Judge, denying Father’s motion to terminate joint custody, finding termination of joint custody not to be in the best interests of the children. There was sufficient evidence for the district court to find that under the rule in Daniel v. Daniel, 2001 OK 117, 42 P.3d 863, Father did not demonstrate a permanent, substantial and material change in circumstances such that 2638
the best interests of the children would be served by terminating joint custody and awarding sole custody to Father. The district court relied on evidence that Mother had taken steps to control her mental illness and to obtain employment, and this had improved the children’s situation. We cannot conclude from the record that the district court abused its discretion in denying Father’s motion, or that the decision was against the clear weight of the evidence. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by FISCHER, P.J.; WISEMAN, C.J., and BARNES, J., concur. 107,184 — Cimarron River Ranch, LLC, Plaintiff/Appellant, v. State of Oklahoma ex rel. The Commissioners of the Land Office; Tecelote Limited Partnership d/b/a Tecelote Ranch; Cimarron Trust Estate; and Nye Schumacher Cattle Company, LLC, Defendants/Appellees. Appeal from an order of the District Court of Oklahoma County, Hon. Carolyn R. Ricks, Trial Judge, granting Defendants’ multiple summary judgment motions. Plaintiff entered into a lease of School Trust land in Cimarron County, Oklahoma, with Defendant Commissioners of the Land Office (CLO). During the lease term, CLO began negotiations with the owners of the private property contiguous to the leased property–these owners being Cimarron Trust Estate, Tecelote Limited Partnership, and Nye Schumacher Cattle Company–to exchange certain portions of the leased property for privatelyowned property. After obtaining an appraisal, CLO “exchanged” the School Trust property for the private property. Plaintiff objected to the “exchange” claiming it materially and negatively altered the character of the property it agreed to rent. When CLO refused to reduce the rent on the lease, Plaintiff invoked a lease provision which allowed it to terminate the lease if land under the lease was sold. CLO insisted that it had not “sold” the leased property and continued to demand rental payments. Plaintiff filed suit seeking a declaratory judgment as to its rights under the lease. In its first claim, Plaintiff asked the trial court to determine that a lease provision gives Plaintiff the right to terminate the lease as a result of CLO’s actions. Plaintiff’s third claim also sought a declaratory judgment holding that the “land exchanges” with private owners constitute violations of the Oklahoma Enabling Act. If the court did not invalidate the lease, Plaintiff’s second claim sought a declaratory judgment invalidating the land exchanges and giving Plaintiff the right to meet the bid for lands
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exchanged pursuant to Plaintiff’s “right of preference.” The trial court granted Defendants’ multiple motions for summary judgment on Plaintiff’s three claims and CLO’s counterclaim. After de novo review of the record and applicable law, and having considered oral arguments presented to the Court, we affirm the trial court’s order as to Count II, but reverse and remand for further proceedings the trial court’s rulings as to Plaintiff’s Counts I and III and CLO’s counterclaim. AFFIRMED IN PART, REVERSED IN PART, 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, October 18, 2010 108,293 — Leanne Reeves, Plaintiff/Appellant, vs. Burggraf Services, Inc., an Oklahoma corporation, Defendant/Appellee. Appeal from Order of the District Court of Tulsa County, Hon. P. Thomas Thornbrugh, Trial Judge, granting defendant Burggraf’s motion for summary judgment. An appellate court is always required to determine the existence of appellate jurisdiction. Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 25, 139 P.3d 873. The district court granted judgment for Burggraf on its breach of contract claim, and therefore necessarily decided that a valid contract for remediation services existed between Reeves and Burggraf. However, Burggraf did not specifically request, nor receive, judgment on Reeves’s claims for damages or offset resulting from Burggraf’s alleged breach of the contract, and her claims of alleged theft, or damage by Burggraf to non-flood-damaged property. Consequently, the district court’s order rendered only partial summary adjudication pursuant to Oklahoma District Court Rule 13(e), 12 O.S. Supp. 2009, ch. 2, app., and disputed claims remain to be litigated. A partial summary adjudication is not within that class of orders we may review, and we do not have jurisdiction to consider Reeves’s appeal at this time. APPEAL DISMISSED. Opinion from Court of Civil Appeals, Division II, by FISCHER, P.J.; WISEMAN, C.J., and BARNES, J., concur. Friday, October 22, 2010 107,707 — Marvin Gentry May, Plaintiff/ Appellant, v. The Oklahoma Bank and Trust Company, Trustee of the Homer E. May Testamentary Trust, Defendant/Appellee. Appeal from an order of the District Court of Custer Vol. 81 — No. 30 — 11/13/2010
County, Hon. Charles L. Goodwin, Trial Judge, allowing an annual accounting filed by Defendant as trustee of the Homer E. May Testamentary Trust. The issue on appeal is whether the trial court abused its discretion or made a decision clearly against the weight of the evidence when it approved an annual accounting that included an allowance for a trustee fee and attorney fees incurred for the recovery of royalty income for the Trust. May asserts Bank breached its fiduciary trust in failing to timely collect the royalty income from a five-acre mineral interest in Roger Mills County. We find that the fact that Bank failed to file a decree which resulted in royalty payments to the wrong recipient does not foreclose Bank’s right to recover attorney fees or a trustee’s fee incurred in connection with its efforts to recoup the royalty income for the Trust. Once the error was discovered, Bank expended money and effort for the benefit of the Trust, and there is no evidence that Bank acted recklessly or in bad faith. The trial court’s decision to approve the accounting was neither against the clear weight of the evidence nor an abuse of its discretion. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. 107,004 — Leland Wayne Wolfe and Belinda M. Wolfe, Plaintiffs/Appellees, v. Barbara Ellison and Maxine Weller, Defendants/Appellants. Appeal from an order of the District Court of LeFlore County, Hon. Danita Williams, Trial Judge, quieting title to a portion of a parcel of real property located in LeFlore County, Oklahoma, in favor of Plaintiffs. The trial judge held that a 40-foot strip of land described as a roadway easement in Defendant Barbara Ellison’s deed is solely a roadway easement, and awarded damages to Plaintiffs for damage to personal property. Plaintiffs counter-appeal from orders of the trial court holding two storage buildings placed by Defendants on the roadway easement did not constitute a continuing trespass and holding that Plaintiff Belinda Wolfe did not meet her burden of proof on her claim for assault and battery. We find no error in the trial court’s decision quieting title to the property in Plaintiffs and awarding damages for the removal of the fence, nor in the trial court’s denial of Defendants’ quiet title and adverse possession claims. These decisions are affirmed. The denial of Plaintiffs’ claims for trespass involving the storage buildings and for assault and battery are reversed and remanded for further pro-
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ceedings to determine Plaintiffs’ damages consistent with this Opinion. AFFIRMED IN PART, REVERSED IN PART 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. Tuesday, October 26, 2010 107,019 — Kimberly Gentry, individually and on behalf of all others similarly situated, Plaintiff/Appellant, vs. Cotton Electric Cooperative, Inc., an Oklahoma corporation, Defendant/ Appellee. Appeal from Order of the District Court of Stephens County, Hon. Joe H. Enos, Trial Judge, denying a motion for class certification based on a finding that Plaintiff Gentry failed to satisfy three of the five prerequisites for certification found at 12 O.S.2001 § 2023(A) and (B). The 2009 amendment to Title 12 O.S. § 2023(C) requires application of a de novo standard of review after November 1, 2009, for appeals of decisions on class certification motions. Gentry has established the requirements necessary to initially certify a class of personal property and real property claimants. Whether she can satisfy those requirements with respect to personal injury claimants remains to be determined on remand. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. (Division No. 3) Thursday, October 14, 2010 106,994 — Karen Farrell; and Danny Farrell, Dena Farrell and Dana Farrell, Plaintiffs/ Appellees, vs. Doran Burns and Ann-Marie Burns, Trustees of the Doran Burns and AnnMarie Burns Family Trust, Defendants/Appellants. Appeal from the District Court of Roger Mills County, Oklahoma. Honorable Charles L. Goodwin, Judge. In this boundary line dispute, Appellants appeal from the trial court’s order quieting title in favor of Appellees by virtue of “boundary by acquiescence.” The trial court determined the boundary of the property was not the survey line but, rather, the barbed wire fence line, which has been mutually maintained by the respective owners during the entire period of 22 plus years. From our review of the record and the arguments and authorities presented, we cannot say the decision of the trial court was against the clear weight of the evidence, contrary to law or established principles of equity. Accordingly, it is 2640
AFFIRMED. Opinion by Mitchell, J.; Joplin, P. J., and Bell, V.C.J., concur. 107,324 — Bobby Burghart, Plaintiff/Appellant, vs. Corrections Corporation of America, Inc., Cimarron Correctional Facility, Charles Ray, Danny Horton, John Welch, John Middleton, H.B. Fields, Linda Jester, Linitia Gillespie, John Doe #1 and John Doe #2, Defendants/ Appellees. Appeal from the District Court of Payne County, Oklahoma. Honorable Donald L. Worthington, Judge. Pro se Plaintiff/Appellant Bobby Burghart seeks review of the trial court’s order granting the motion to dismiss of Defendants/Appellees Corrections Corporation of America, Inc., et al. In this appeal, Plaintiff challenges the trial court’s order as affected by errors of both fact and law. The record before us does not show Burghart’s full and final exhaustion of all administrative remedies following the appeal procedures of the Department of Corrections. While Burghart may be able to demonstrate his exhaustion of all administrative remedies in the prior case on remand, he has not done so in the present case. AFFIRMED. Opinion by JOPLIN, P.J.; BELL, V. C.J., and MITCHELL, J., concur. 108,187 — Peter Andrew Clark, Petitioner/ Appellant, vs. Jamie Michelle Clark Edens, Respondent/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable P. Thomas Thornbrugh, Judge. Appellant (Husband) appeals an order of the trial court in favor of Appellee (Wife) in Husband’s declaratory judgment action. Husband’s petition asked the court to declare him the presumptive father of MAC, a minor, pursuant to the Uniform Parentage Act, 10 O.S. Supp. 2006 §§7700-101 et seq., as MAC was born during his marriage to Wife. The undisputed facts lead only to the conclusion reached by the trial court — that Husband’s filing a verified Petition for Divorce stating no children had been born of the marriage constituted a written waiver of paternity and the unchallenged and final Decree of Divorce stating that no children were born of the marriage rebutted any presumption of paternity that might otherwise have existed. Wife was entitled to judgment as a matter of law. AFFIRMED. Opinion by MITCHELL, J.; JOPLIN, P.J., and BELL, V.C.J., concur. Friday, October 22, 2010 107,154 — Diamond Sevens, L.L.C., an Oklahoma Limited Liability Company, Plaintiff/ Appellee, vs. Intelligent Home Automation,
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Inc., d/b/a Intelligent Home Automation, d/b/a IHA, an Oklahoma Corporation, Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Jefferson D. Sellers, Judge. Appellant, Intelligent Home Automation, Inc., Defendant below (IHA), seeks review of the trial court’s order denying its motion to compel arbitration and motion to dismiss the petition filed by Appellee, Diamond Sevens, L.L.C., Plaintiff below (Diamond Sevens or Diamond). In February 2004, the Larkin Company and Diamond Sevens entered into a construction contract for the building of a home. The Larkin Company became Diamond Sevens’ general contractor. One of the components of the home construction included a home automation system. The Larkin Co. chose IHA to design and implement this system. Larkin signed the first agreement with IHA in March 2004 and a second contract, known as the system contract, in 2005. The system contract contained an arbitration clause and venue selection clause. No one directly affiliated with Diamond Sevens signed either IHA agreement. IHA sent billing to and was paid by the Larkin Co. Larkin and Brooks, Diamond Sevens’ principal and project manager, maintain the system never worked properly. IHA believed the system largely worked. Diamond Sevens brought suit in January 2009, alleging breach of contract, breach of warranty, revocation of acceptance and negligence. From the trial court’s order denying the motion to compel arbitration and motion to dismiss, IHA brought this appeal. IHA first asserts Diamond was a party to the system contract by virtue of Larkin’s apparent authority to bind Diamond Sevens. Whether such an agency relationship exists is a question of fact. Tulsa Co. Truck & Fruit Growers Ass’n v. McMurphey, 1939 OK 250, 90 P.2d 927, 929; Love v. Williams, 1934 OK 544, 37 P.2d 944, 946. However, whether or not an enforceable agreement to arbitrate exists is a question of law and is reviewed de novo. Oklahoma Oncology & Hematology v. U.S. Oncology, Inc., 2007 OK 12, 160 P.3d 936, 944. Arbitration is a product of contract and will not be forced on a party who has not agreed to it. Oklahoma Oncology & Hematology P.C. v. U.S. Oncology, Inc., 2007 OK 12, 160 P.3d 936, 994. In order for a third party to establish apparent authority and hold the principal responsible for the acts of his agent, the party asserting the existence of the agency relationship must show a) conduct of the principal which demonstrates an agency relationship exists, b) reliance by a third person Vol. 81 — No. 30 — 11/13/2010
on the principal’s conduct and c) the third party changes its position due to that reliance. Id. However, under Oklahoma law, a contractor is not the homeowner’s agent. Hall v. North Plains Concrete Serv., Inc., 1966 OK 221, 425 P.2d 941. Without more, Larkin does not become Diamond Sevens’ agent by performing as Diamond Sevens’ general contractor. Second, IHA claimed Diamond Sevens ratified the system contract and was therefore bound by it. Ratification is akin to agency, because it involves a principal who voluntarily accepts the benefits of a contract executed by the purported agent, although execution of the contract occurred without the principal’s authority. In support of its ratification argument, IHA argued Brooks was willfully ignorant of the arbitration clause. The trial court evaluated Brooks’ actions and determined Brooks acted as a homeowner and did not demonstrate willful ignorance in his dealings with contractor and subcontractor. The trial court’s decision does not demonstrate error. IHA was unable to support its assertion that Diamond Sevens was a party to the system contract. In keeping with this finding, the trial court’s decision regarding venue is also affirmed, because Diamond Sevens and IHA had no agreement regarding venue selection. IHA’s request for attorney fees and costs are denied. Diamond Sevens’ request for fees is denied. The order of the trial court is AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 107,670 — Doyle D. Melson and Lela M. Melson, Plaintiffs/Appellants, vs. Wachovia Bank, NA of North Carolina as Trustee, FKA First Union National Bank of North Carolina as Trustee; and, Wachovia Bank, NA, a national Banking association, in its individual Capacity, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Deborah Shallcross, Judge. Appellants (the Melsons) filed an action against Appellees (Wachovia) seeking damages for Wachovia’s failure to release their mortgage pursuant to 46 O.S. 2001 §15. Melsons appeal the trial court’s grant of summary judgment in favor of Wachovia finding 46 O.S. §15 is Melsons’ exclusive remedy and based upon the expiration of the one-year statute of limitations. 12 O.S. Supp. 2005 §95(4). The material facts in this case establish conclusively that Melsons’ claims were barred by the one-year statute of limitations. Melsons’ claims for negligence and declaratory judgment are also barred. The judgment of the trial court is AFFIRMED.
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Opinion by Mitchell, J.; Joplin, P.J., and Bell, V. C.J., concur. (Division No. 4) Wednesday, October 13, 2010 106,862 — Lance Hughes, individually, Plaintiff/Appellant, v. Don R. Hughes, Jane Thornton, Individually, and as Trustees of the Ro Ann Maxwell Hughes Irrevocable Trust, Defendants/Appellees, and Jenny Hughes, Donald F. Hughes, Jennifer Thornton, Jamie Hughes, Bryce Thornton, Interested Parties. Appeal from orders of the District Court of Garfield County, Hon. Ronald G. Franklin, Trial Judge, denying Lance Hughes’ (Appellant) motion to vacate an earlier order approving an accounting submitted by Trustees, and enforcing a settlement agreement. Appellant asserted the trial court lacked jurisdiction to order a settlement conference or approve the settlement agreement because all necessary parties were not present. We agree and reverse the trial court’s order enforcing the settlement agreement. We affirm, however, the trial court’s denial of Appellant’s motion to vacate the court’s order approving Trustee’s accounting. Appellant failed to set forth any argument or authority to support this proposition of error. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Opinion by the Court of Civil Appeals, Division IV, by GOODMAN, J.; GABBARD P.J., concurs; RAPP, J., not participating. Thursday, October 14, 2010 107,305 — Eric Koukal, Plaintiff/Appellant, vs. Brodie Reece Butchee, Defendant/Appellee. Appeal from the District Court of Jackson County, Hon. Clark E. Huey, Trial Judge entering judgment on a jury verdict in favor of Defendant, in this assault and battery lawsuit. Because Plaintiff failed to show prejudice, it is unnecessary to determine whether a witness may be impeached by prior inconsistent statements made to the police during the course of a nowexpunged criminal proceeding. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by GABBARD, P.J.; RAPP, J., concurs, and GOODMAN, J., concurs in result.
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107,981 — Eck Heat & A/C, Inc., and Federated Mutual Insurance Company, Petitioners/ Appellants, v. William C. Kay, Jr., and the Workers’ Compensation Court, Respondents/ Appellants. Appeal from an order of the Worker’s Compensation Court, Hon. Eric W. Quandt, Trial Judge. Employer ECK Heat & A/C, Inc. seeks review of the trial court’s January 14, 2010, order determining compensability and awarding temporary total and permanent partial disability benefits to Claimant William C. Kay, Jr. Based on our review of the facts and applicable law, we sustain the order under review, but remand the matter for a determination of Claimant’s pre-existing heart condition for purposes of allocation of the award for permanent partial impairment. SUSTAINED. Opinion from the Court of Civil Appeals, Division IV, by GOODMAN, J.; GABBARD P.J., concurs; RAPP, J., not participating. Monday, October 18, 2010 108,262 — Milan Transportation and XL Speciality Insurance Co., Petitioners, v. William Richmond 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 the decision of the workers’ compensation trial court finding Claimant sustained a work-related injury and awarding benefits. Employer alleges on appeal that the workers’ compensation court erred, as a matter of law, in holding Employer responsible for Claimant’s change of condition. Employer asserts that Claimant’s subsequent employment aggravated Claimant’s right foot injury. The issue of whether a claimant has sustained a change of condition for the worse is a question of fact for the workers’ compensation trial court. Sooner State Optical, Inc., 2006 OK CIV APP 98, ¶ 7, 141 P.3d 577, 580. This Court is, therefore, confined by the competent evidence standard of review. Id. This Court finds that there is competent evidence to support the workers’ compensation court determination that Claimant sustained a change of condition for the worse. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; GABBARD, P.J., and GOODMAN, J., concur.
The Oklahoma Bar Journal
Vol. 81 — No. 30 — 11/13/2010
NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge • Twenty-third Judicial District, Office 2 • Pottawatomie County This vacancy is due to the appointment of the Honorable Douglas L. Combs, to the Supreme Court effective January 1, 2011. To be appointed to the office of District Judge one must be a registered voter of Pottawatomie County at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointee shall have had a minimum of four years experience as a licensed practicing attorney, or as a judge of a court of record, or both, within the State of Oklahoma. Application forms can be obtained online at www.oscn.net under the link to Judicial Nominating Commission or by contacting Tammy Reaves at (405) 521 2450. Applications must be submitted to the Chairman of the Commission at the address below no later than 5:00 p.m., Monday, November 29, 2010. If applications are mailed, they must be postmarked by midnight, November 29, 2010. Allen Smallwood, Chairman Oklahoma Judicial Nominating Commission Administrative Office of the Courts 1915 North Stiles, Suite 305 Oklahoma City, Oklahoma 73105
NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Justice of the Supreme Court District Three [To be appointed to the office of Justice of the Supreme Court, an individual must have been a qualified elector of the applicable Supreme Court Judicial District, as opposed to a registered voter, for one year immediately prior to his or her appointment, and additionally, must have been a licensed attorney, practicing law within the State of Oklahoma, or serving as a judge of a court of record in Oklahoma, or both, for five years preceding his/her appointment.] Application forms can be obtained online at www.oscn.net under the link to Judicial Nominating Commission or by contacting Tammy Reaves at (405) 521 2450. Applications must be submitted to the Chairman of the Commission at the address below no later than 5 p.m., Friday, November 19, 2010. If applications are mailed, they must be postmarked by midnight, November 19, 2010. Allen Smallwood, Chairman Oklahoma Judicial Nominating Commission Administrative Office of the Courts 1915 North Stiles, Suite 305 Oklahoma City, Oklahoma 73105
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CLASSIFIED ADS SERVICES
SERVICES
HANDWRITING IDENTIFICATION POLYGRAPH EXAMINATION
WORKERS’ COMPENSATION REFERRALS APPRECIATED: Referral Fees Paid; Berry, Inhofe & Otterson PLLC (918) 431-0090.
Board Certified Diplomate — ABFE Life Fellow — ACFE
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. Appeals and litigation support — Expert research and writing by a veteran generalist who thrives on wide variety of projects, big or small. Cogent. Concise. Nancy K. Anderson, (405) 682-9554, nkanderson@hotmail.com. Want To Purchase Minerals AND OTHER OIL/GAS INTERESTS. Send details to: P.O. box 13557, Denver, CO 80201.
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. HPS PROCESS SERVICE & INVESTIGATIONS is now in Oklahoma City! A leader in legal support with more than 30 years of expertise and client success, HPS is staffed by dedicated, full-time professionals that give your assignments our full attention for outstanding results at competitive prices. Contact us today! (800) 796-9559, service@hatfieldprocess. com, www.hatfieldprocess.com or 4 NE 10th St., Suite 235, Oklahoma City, OK 73104.
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OFFICE SHARE SHARED LUXURY OFFICE SPACE: Luxury all around...Granite, Wood, Slate Tile. Feel like you are working out of a beautiful home. Mix and match offices to suit your needs. We have an extra large upstairs space ($1,300), large corner office ($1,000), large office ($900), and 2 small offices ($695 each) as well as a reception area available. Included are an exquisite conference room, full kitchen and shared amenities available (phones, fax, cable and copier). Times are tough...we’re willing to work with you! Quail Pointe Suites – 13924 Quail Pointe Drive. Just West of May & Memorial off the Kilpatrick Turnpike. Please call Gina (405) 826-8188.
POSITIONS AVAILABLE ASSISTANT UNITED STATES ATTORNEY - CRIMINAL DIVISION: The United States Attorney’s Office for the Western District of Oklahoma is seeking attorney applicants for a term position not to exceed 13 months, subject to availability of funds. This position may be extended, or made permanent, without further advertising. An attorney hired for this position will have the primary responsibility of working with criminal matters, specifically the investigation and prosecution of drug and firearms trafficking, immigration and drug cartel-related case activity. Salary is based on the number of years of professional attorney experience. Applicants must possess a J.D. degree, be an active member of the bar in good standing (any jurisdiction), and have at least one (1) year or more litigation experience post-J.D. Trial experience preferred. Interested applicants should send their resumes to: Robert J. Troester, Executive Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Oklahoma, 210 Park Ave., Suite 400, Oklahoma City, OK 73102. Resumes must be received no later than Nov. 19, 2010, and should reference announcement number 11-OKW-03-A. Must be a U.S. citizen to apply. NORTHWEST OKLAHOMA CITY FIRM has a position available for an oil and gas title attorney with two (2) plus years experience writing ownership reports and/or title opinions. The candidate may be a landman (but must have a J.D. degree) or be a practicing attorney. Ideally the candidate will have HBP experience (i.e., able to examine working interest title and calculate net revenue interests) and can begin work immediately. Pay scale is commensurate with experience. Send resume and writing sample to oilandgasattorney@cox.net.
The Oklahoma Bar Journal
Vol. 81 — No. 30 — 11/13/2010
POSITIONS AVAILABLE
POSITIONS AVAILABLE
AV RATED OKC INSURANCE DEFENSE LITIGATION FIRM seeks associate with 3-5 years experience. Salary commensurate with experience. Please send resumes to “Box F,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
NORTHEASTERN OKLAHOMA LAW FIRM SEEKS ATTORNEY with 2-5 years experience in real property law, real estate transactions, oil and gas and appearing in court. Landman experience is also helpful. Send resume and writing sample to “Box D,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
BARNUM & CLINTON, Norman, is accepting applications for an attorney with litigation experience (3-5 years preferred) in workers’ compensation defense and/or general civil litigation. Please send resume, salary history and writing sample, by e-mail to cbarnum@ coxinet.net. ASSISTANT DISTRICT ATTORNEY needed in Coal County. Seeking a licensed attorney with 0-3 years experience who desires a career in criminal prosecution. Send resume with cover letter to: District Attorney Emily Redman, 117 North Third St., Durant, OK 74701 or fax to (580) 924-3596. IMMEDIATE AVAILABILITY FOR TWO LEGAL ASSISTANTS with newly-formed busy NW OKC civil litigation firm of established attorneys. Successful candidates will have a minimum of five years heavy litigation experience, stable employment history and demonstrated willingness to work. Salary commensurate with qualifications. Plaintiff’s personal injury and/or domestic experience preferred, but not required. Only those candidates who meet these criteria need apply. Please fax resume to (405) 810-9901. CIVIL LITIGATION AND BANKRUPTCY ATTORNEY POSITIONS in mid-size AV Tulsa firm. Prefer 3-5 years experience and capable of taking on an active caseload. Please send resume to “Box N,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
Vol. 81 — No. 30 — 11/13/2010
CLASSIFIED INFORMATION CLASSIFIED RATES: One dollar per word per insertion. Minimum charge $35. Add $15 surcharge per issue for blind box advertisements to cover forwarding of replies. Blind box word count must include “Box ____ , Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.” Display classified ads with bold headline and border are $50 per inch. See www.okbar.org for issue dates and Display Ad sizes and rates. DEADLINE: Tuesday noon before publication. Ads must be prepaid. Send ad (e-mail preferred) in writing stating number of times to be published to: Jeff Kelton, Oklahoma Bar Association P.O. Box 53036, Oklahoma City, OK 73152 E-mail: jeffk@okbar.org Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement notices must be clearly nondiscriminatory.
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The Oklahoma Bar Journal
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