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Volume 81 u No. 31 u November 20, 2010

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The Oklahoma Bar Journal

Vol. 81 — No. 31 — 11/20/2010

OFFICERS & BOARD OF GOVERNORS Allen M. Smallwood, President, Tulsa Deborah Reheard, President-Elect, Eufaula Mack K. Martin, Vice President, Oklahoma City Jon K. Parsley, Immediate Past President, Guymon Jack L. Brown, Tulsa Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami Glenn A. Devoll, Enid Steven Dobbs, Oklahoma City W. Mark Hixson, Yukon Jerry L. McCombs, Idabel Lou Ann Moudy, Henryetta David A. Poarch, Norman Ryland L. Rivas, Chickasha Susan S. Shields, Oklahoma City James T. Stuart, Shawnee Molly Aspan, Tulsa, Chairperson, OBA/Young Lawyers Division

BAR Center Staff

John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Communications; Craig D. Combs, Director of Administration; Travis Pickens, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Beverly Petry Lewis, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; John Burchell, Information Services Manager; Loraine Dillinder Farabow, Debbie Maddox, Ted Rossier, Assistant General Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Manni Arzola, Debbie Brink, Melissa Brown, Stephanie Burke, Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Amy Kelly, Jeff Kelton, Durrel Lattimore, Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Tracy Sanders, Mark Schneidewent, Robbin Watson, Laura Willis & Roberta Yarbrough

EDITORIAL BOARD Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: P. Scott Buhlinger, Bartlesville; Dietmar K. Caudle, Lawton; Sandee Coogan, Norman; Emily Duensing, Tulsa; Thomas E. Kennedy, Enid; Pandee Ramirez, Okmulgee; James T. Stuart, Shawnee; Leslie D. Taylor, Oklahoma City; January Windrix, Poteau

events Calendar NOVEMBER 2010 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

DECEMBER 2010 2

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

7

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

10

OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly K. Hays (918) 592-2800

15

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

16

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

17

OBA Board of Governors Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: John Morris Williams (405) 416-7000

18

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

20

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

23 - 24 OBA Closed – Christmas Day Observed 31

OBA Closed – New Year Holiday Observed For more events go to www.okbar.org/calendar

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Oklahoma Bar Association

table of

contents November 20, 2010 • Vol. 81 • No. 31

page 2651 Events Calendar 2654 Index to Court Opinions 2656 Supreme Court Opinions 2663 Court of Criminal Appeals Opinions 2668 2011 Committee Sign-up Form 2670 Court of Civil Appeals Opinions 2726 Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court 2010 OK 80 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. JAMES T. ROBINSON, Respondent. SCBD No. 5690.............................................. 2656 2010 OK 81 IN THE MATTER OF C.D.P.F., an alleged deprived child, JOANNA DANIELS, Appellant, v. STATE OF OKLAHOMA, Appellee. No. 106,193....................................... 2658

Index To Opinions Of Court of Criminal Appeals 2010 OK CR 25 MICHAEL G. BURGESS, Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. F-2009-308......................................................................................................... 2663

Index To Opinions Of Court of Civil Appeals 2010 OK CIV APP 112 BAER, TIMBERLAKE, COULSON & CATES, P.C., Plaintiff/Appellee, vs. RAHMANA WARREN, Defendant/Appellant, HERBERT E. WARREN, JOHN DOE, JANE DOE, GREGORY JACKSON, SPOUSE, IF ANY, OF GREGORY JACKSON, RODNEY STEWARD, SPOUSE, IF ANY, OF RODNEY STEWARD, MARISHA A. STEWARD, SPOUSE, IF ANY, OF MARISHA A. STEWARD, NAEEMAH B. STEWARD, and SPOUSE, IF ANY, OF NAEEMAH B. STEWARD, Defendants. Case No. 106,212.......................................................................................................................................... 2670 2010 OK CIV APP 113 ANGELA EDWARDS, individually, and on behalf of JOHNNY G. EDWARDS, an incapacitated person, Plaintiff/Appellee, vs. ARDENT HEALTH SERVICES, L.L.C., a Delaware corporation authorized to conduct business in the State of Oklahoma; AHS WAGONER HOSPITAL, L.L.C., d/b/a WAGONER COMMUNITY HOSPITAL; and AHS TULSA REGIONAL MEDICAL CENTER, L.L.C., d/b/a TULSA REGIONAL MEDICAL CENTER, Defendants, and OKLAHOMA HEALTH CARE AUTHORITY, Defendant/Appellant. Case No. 106,291.................................................. 2674 2010 OK CIV APP 114 IN THE MATTER OF THE ESTATE OF LOLA LADENE WEBB, DECEASED. CHARLES L. WATKINS, LINDA K. WATKINS, and LAURIE LADENE COLEMAN, Petitioners/Appellees/Cross-Appellants, vs. ROBIN JEANNE WEBB, Personal Representative of the Estate of Lola Ladene Webb, Respondent/Appellant/ Cross-Appellee. No. 106,790............................................................................................................. 2677 2010 OK CIV APP 115 NOEL OSBORN, by and through his Legal Guardians, RICK OSBORN and TERRY OSBORN, Plaintiffs/Appellees, vs. BROOKDALE SENIOR LIVING, INC.; BROOKDALE SENIOR LIVING, INC., d/b/a ALTERRA STERLING HOUSE OF EDMOND; and BILL GODWIN, Defendants/Appellants. Case No. 107,070.................................................................................................................................................. 2680 2010 OK CIV APP 123 FOSSIL CREEK ENERGY CORPORATION, Plaintiff/Interested Party, vs. COOK’S OILFIELD SERVICES, Defendant/Third-Party Plaintiff/Appellant, vs. ADMIRAL INSURANCE COMPANY, Third-Party Defendant/Appellee.

Case No. 106,895................................................................................................................................ 2686 2010 OK CIV APP 124 HIGHLAND CROSSING, L.P., an Oklahoma limited partnership, Plaintiff/Appellant, vs. KEN LASTER COMPANY, an Oklahoma corporation, Defendant/Appellee, vs. ROYCE WRIGHT, General Partner of Highland Crossing, L.P., Third Party Defendant. Case No. 107,196...................................................................................... 2691

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2010 OK CIV APP 121 IN RE: PROTEST TO THE CERTIFICATE OF TITLE BRAND ISSUED TO AAAA WRECKER SERVICE, INC. ON A 2004 TOYOTA DBS, VIN # 5TBDT44154S460009. AAAA WRECKER SERVICE, INC., Appellant, vs. OKLAHOMA TAX COMMISSION, Appellee. Case No. 107,456.......................................................... 2694 2010 OK CIV APP 116 CHRIS COOK, RICHARD BERCHER, TONY NEWSOM AND DERICK PICKARD, individually, and all other similarly situated police officers, Plaintiffs/Appellants/Counter-Appellees, vs. City of Edmond, Defendant/Appellee/Counter-Appellant. Case Nos. 107,463; Consol. w/107,469................................................ 2698 2010 OK CIV APP 117 CHOICES INSTITUTE, Plaintiff/Appellant, vs. OKLAHOMA HEALTH CARE AUTHORITY AND MIKE FOGARTY, IN HIS CAPACITY OF CHIEF EXECUTIVE OFFICER OF THE OKLAHOMA HEALTH CARE AUTHORITY, Defendant/Appellee. Case No. 107,533.................................................................................................... 2702 2010 OK CIV APP 118 MARILYN SUE GOFF, Plaintiff/Appellant, vs. SALAZAR ROOFING & CONSTRUCTION, INC., an Oklahoma Corporation, and ROBERT MAULPIN, individually, a/k/a ROBERT MAUPIN, Defendants/Appellees, and SALAZAR ROOFING & CONSTRUCTION USA, INC., an Oklahoma Corporation; and/or a/k/ a and/or d/b/a SALAZAR ROOFING CORPORATION, an Oklahoma Corporation; and/or a/k/a and/or d/b/a SALAZAR CONTRACTING, INC., an Oklahoma Corporation, Defendants. Case No. 107,722......................................................................................... 2705 2010 OK CIV APP 119 DEBBIE WHEAT, Plaintiff/Appellant, vs. STATE OF OKLAHOMA ex rel. TULSA COUNTY DISTRICT ATTORNEY, Defendant/Appellee.

Case No. 107,728................................................................................................................................ 2709 2010 OK CIV APP 125 SHAWVER & SONS, INC. and COMMERCE & INDUSTRY INSURANCE, Petitioners, vs. JENIFER WISE, COREY WISE (deceased), TRAVELERS INSURANCE CO., and the WORKERS’ COMPENSATION COURT, Respondents. Case No. 107,968..................................................................................................................... 2712 2010 OK CIV APP 126 CHAPARRAL ENERGY, L.L.C., an Oklahoma Limited Liability Company, Plaintiff/Appellee/Counter-Appellant, vs. PIONEER EXPLORATION, LTD., a Foreign Limited Partnership, Defendant/Appellant/Counter-Appellee. Case No. 108,113.......................................................................................................................................... 2716 2010 OK CIV APP 122 REX EVERETT GILWORTH, SR., Plaintiff/Appellant, vs. STATE OF OKLAHOMA ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellee.

Case No. 107,871................................................................................................................................ 2719 2010 OK CIV APP 120 FIRST UNITED BANK & TRUST CO., a state banking corporation, Plaintiff/Appellee, vs. GLENN S. PENNY, Defendant/Appellant. Case No. 108,207........... 2720

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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 80 STATE OF OKLAHOMA ex rel.

OKLAHOMA BAR ASSOCIATION, Complainant, v. JAMES T. ROBINSON, Respondent.

SCBD No. 5690. November 15, 2010 ORDER APPROVING RESIGNATION FROM OKLAHOMA BAR ASSOCIATION PENDING DISCIPLINARY PROCEEDINGS APPLICATION APPROVED. RESPONDENT’S NAME STRICKEN FROM THE ROLL OF ATTORNEYS. ¶1Complainant, Oklahoma Bar Association, filed its Application for Order Approving Resignation on October 22, 2010, asking this court to enter an order approving the Resignation Pending Disciplinary Proceedings of James T. Robinson, pursuant to Rule 8.2, Rules Governing Disciplinary Proceedings (“RGDP”) 5 O.S. 2001, Ch. 1, App. 1-A. Complainant states Respondent’s Resignation Pending Disciplinary Proceedings was executed in conformity with the requirements of Rule 8.1, RGDP. ¶2 Upon consideration of this matter, we find: 1. Respondent’s name and address, according to records maintained by the Oklahoma Bar Association, are shown as follows: James T. Robinson, OBA #13552, 328 Wewoka Drive, Norman, Oklahoma 73071-7210.

2. Respondent is currently suspended from the practice of law in Oklahoma as a result of his failure to pay Oklahoma Bar Association dues by order of the Supreme Court of Oklahoma, SCBD #5654, and his failure to comply with mandatory continuing legal education (MCLE) requirements, per Oklahoma Supreme Court order, SCBD #5655.

3. Respondent’s affidavit states that (a) it was rendered freely and voluntarily; (b) he was not subjected to coercion or duress; (c) he was aware of the consequences of submitting his resignation and; (d) he was aware that his resignation is subject to the approval of the

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Supreme Court of the State of Oklahoma; however, he intends that it be effective from the date and time of its execution, and he will conduct his affairs accordingly. ¶3 Respondent further states that he is aware the following grievances have been investigated by the Office of the General Counsel, Oklahoma Bar Association, and the Professional Responsibility Tribunal has authorized the filing of formal charges against him with this court in: Ayers Grievance: Alleges that on or about October 6, 2008, Respondent was retained to prepare and file an application for copyright and federal trademark registrations. Mr. Ayers advanced payment of $1,370.00 for attorney fees and filing fees and despite receipt of said funds, Respondent ceased communicating with Mr. Ayers and failed to file either application on his behalf. Respondent repeatedly failed to respond to the Office of the General Counsel during its investigation of this matter.

Crowdis Grievance: Alleges that on or about January 3, 2006, Mr. Crowdis retained and paid a flat fee of $2,000.00 to Respondent to probate the estates of Mr. Crowdis’ parents. Respondent ceased work on the probates and ceased communicating with the client. Additionally, Respondent repeatedly failed to respond to the Office of the General Counsel during its investigation of this matter.

Bond Grievance: Alleges Respondent was paid a $2,500.00 retainer by Mr. Bond in December 2008 to file a patent application on his behalf. Mr. Bond further alleges after Respondent cashed his check, he neglected to properly communicate with his client, failed to file the patent application, and failed to refund the unearned fees to the client. Additionally, Respondent repeatedly failed to respond to the Office of the General Counsel during its investigation of this matter.

Waterhouse Grievance: Alleges that Respondent received $13,546.45 from Mr. Waterhouse between May 2005 and January 2007 to handle three patent applications. Grievance alleges that Respondent incompetently and negligent-

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ly mishandled these patent applications and ultimately abandoned their prosecution. Grievance further alleges Respondent ceased communicating with Mr. Waterhouse and failed to refund all unearned fees and costs which should have been held in trust. Additionally, Respondent failed to provide a written response to the Office of the General Counsel during its investigation of this matter.

General Counsel Grievance: Alleges that a disciplinary Order of Exclusion was issued against Respondent by the United States Patent and Trademark Office (“USPTO”) on May 26, 2010, In the Matter of James T. Robinson, Proceeding No. D2009-48. Said Order of Exclusion prohibits Respondent from practicing before the United States Patent and Trademark Office as a result of a finding that Respondent issued a series of insufficient checks to the USPTO, he failed to make good on those dishonored checks, that he neglected to respond to several USPTO notices regarding his abandonment of clients’ matters, he failed to notify clients of his abandonment of their applications, and that he failed to submit an accounting or return patent application files to a client upon request. Additionally, Respondent failed to provide a written response to the Office of the General Counsel during its investigation of this matter. ¶4 Respondent is aware that the allegations concerning his conduct if proven, as set forth in the above-referenced grievances, would constitute violations of Rules 1.1, 1.3, 1.4, 1.5, 1.16, 16(d), 8.4(b) and 8.4(a)(b)(d) of the Oklahoma Rules of Professional Conduct (“ORPC”), 5 O.S. 2001, Ch. 1, App. 3-1 and ORPC, 5 O.S. 2001, Ch. 1, App. 3-A (as amended by the Oklahoma Supreme Court, 2007 OK 22) and Rules 1.3 and 5.2, RGDP, and his oath as an attorney. ¶5 Respondent is aware that the burden of proof regarding the allegations set forth rests upon the Oklahoma Bar Association. However, Respondent waives any and all right to contest the allegations. ¶6 Respondent is aware that, pursuant to Rule 8.2, RGDP, either the approval or disapproval of this resignation is within the discretion of the Oklahoma Supreme Court. ¶7 Respondent has familiarized himself with the provisions of Rule 9.1, RGDP, and he hereby agrees to comply with all provisions of Rule 9.1 within twenty days following the date of this resignation.

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¶8 Respondent acknowledges and agrees he may be reinstated to the practice of law only upon full compliance with the conditions and procedures prescribed by Rule 11, RGDP, and he may make no application for reinstatement prior to the expiration of five years from the effective date of the Order approving this Resignation Pending Disciplinary Proceedings. ¶9 Respondent acknowledges that, as a result of his conduct, the Client Security Fund may receive claims from his former clients. ¶10 Respondent agrees that, should the Oklahoma Bar Association approve and pay such Clients Security Fund claims, he will reimburse the fund the principal amounts and the applicable statutory interest prior to the filing of any application for reinstatement. ¶11 Respondent hereby affirms and avows, under penalty of perjury, that he is unable to locate his Oklahoma Bar Association membership card and therefore cannot surrender it contemporaneously with his resignation pending disciplinary proceedings. In the event Respondent finds the Oklahoma Bar Association membership card previously issued to him, he hereby affirms, under penalty of perjury, that he will destroy it. ¶12 Respondent acknowledges and agrees that he will cooperate with the Office of the General Counsel in the task of identifying any active clients’ cases wherein documents and files need to be returned or forwarded to new counsel, and in any client case where fees or refunds are owed by him. ¶13 Respondent acknowledges the Oklahoma Bar Association has incurred costs in the investigation of the above-stated. Nevertheless, the Oklahoma Bar Association has waived those costs. ¶14 IT IS THEREFORE ORDERED that Complainant’s application and Respondent’s resignation be approved; that Respondent’s name be stricken from the Roll of Attorneys and that he make no application for reinstatement to membership in the Oklahoma Bar Association prior to five years from the effective date of this order; that Respondent comply with Rule 9.1, Rules Governing Disciplinary Proceedings; that Respondent reimburse the Client Security Fund of the Oklahoma Bar Association, including interest at the statutory rate, should it pay any funds to his former clients for claims made due to his alleged misconduct; and that inves-

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tigative costs incurred by the Oklahoma Bar Association are waived.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 15th DAY OF NOVEMBER, 2010. /s/ James E. Edmondson CHIEF JUSTICE EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, KAUGER, WATT, WINCHESTER, COLBERT, REIF, JJ. — concur.

2010 OK 81 IN THE MATTER OF C.D.P.F., an alleged deprived child, JOANNA DANIELS, Appellant, v. STATE OF OKLAHOMA, Appellee.

No. 106,193. November 16, 2010 ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 After trial for termination of Mother’s parental rights, a jury found clear and convincing evidence that the Mother, Joanna Daniels, failed to correct conditions which led to the deprived adjudication of C.D.P.F. The trial court entered judgment consistent with the jury’s findings and terminated Mother’s parental rights. A divided Division IV of the Court of Civil Appeals disagreed and reversed the trial court’s findings.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED. Eric R. Jones, ERIC R. JONES LAW OFFICE, Ardmore, Oklahoma, for Appellant.

Craig Ladd, DISTRICT ATTORNEY, and Heather J. Russell Cooper, ASSISTANT DISTRICT ATTORNEY, Ardmore, Oklahoma, for Appellee.

WINCHESTER J., ¶1 This appeal arises from a jury trial that culminated in a judgment terminating the parental rights of Mother, JoAnna Daniels, to her minor daughter C.D.P.F. On June 11, 2007, while searching a home for suspected drug use, DHS and local police found C.D.P.F., a then nine month old infant, crying in the home.

A female resident informed the DHS worker that the infant’s mother was not in the home but had been staying there and had left the 2658

infant there to run an errand. Mother returned to the house two hours later. A search of the car Mother was driving, as well as her purse, both yielded drug substances. Mother was arrested for felony possession of methamphetamines and C.D.P.F was taken into DHS custody.1 Mother failed a drug test at this time. ¶2 The proceedings against Mother were initiated by the State on June 18, 2007, with a petition to adjudicate C.D.P.F. as a deprived child.

The petition alleged, inter alia, that Mother could not properly provide a safe, stable home because she was homeless; that Mother used illegal drugs; that Mother left the child with inappropriate caregivers; and that the parents engaged in domestic violence in the presence of the child.2 The trial court found C.D.P.F. to be deprived and at a disposition hearing on July 26, 2007, the trial court provided Mother with a list of conditions she had to complete to have C.D.P.F. returned to her custody. Among the court-ordered conditions were that Mother must complete a substance abuse treatment program, that she must not use drugs and that she submit to random drug tests at the request of DHS.3 ¶3 During the ensuing months, Mother failed two additional tests and refused several others.

Mother denied the use of drugs and testified she believed the results were false positives.

There was conflicting evidence regarding Mother’s attendance at an out-patient substance abuse program; however, Mother admitted that after testing positive in January 2008, a program counselor indicated to her that she needed to seek in-patient therapy. Mother’s DHS workers also requested Mother attend an in-patient treatment program. Mother refused, continuing to deny drug use and indicating that if she were to attend in-patient treatment she would lose her rental residence. Mother claims to have paid for her own hair follicle drug tests, one of which came back positive and a subsequent test which was negative. ¶4 On May 15, 2008, the State sought to terminate Mother’s parental rights on the grounds that Mother had failed to correct the conditions which led to the adjudication of C.D.P.F. as deprived, even though Mother had been given in excess of three (3) months to correct the conditions. The State also urged the termination was in the child’s best interests. A jury trial was held and the jury rendered a verdict for termination. On July 24, 2008, the trial court entered judgment consistent with the jury’s verdict and

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Mother appealed this ruling. A divided Division IV of the Court of Civil Appeals reversed the finding of the trial court and certiorari was granted to review their opinion.

STANDARD OF REVIEW ¶5 In parental termination cases, the State must show by clear and convincing evidence that the child’s best interest is served by the termination of parental rights. In the Matter of C.G., 1981 OK 131, ¶ 17, 637 P.2d 66, 70-71. Our case law provides that clear and convincing evidence is the measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established. In the Matter of the Adoption of L.D.S., 2006 OK 80, ¶11, 155 P.3d 1, 4, quoting In re C.G., 1981 OK 131, ¶17 n. 12, 637 P.2d 66, 71 n. 12. This standard of proof “balances the parents’ fundamental freedom from family disruption with the state’s duty to protect children within its borders.” In the Matter of Adoption of L.D.S., 2006 OK 80, ¶11, 155 P.3d 1, 4, quoting In re C.G., 1981 OK 131, ¶17, 637 P.2d at 70. ¶6 Likewise, our review on appeal must find the presence of clear and convincing evidence to support the trial court’s decision. In the Matter of S.B.C., 2002 OK 83, ¶7, 64 P.3d 1080, 1082.

We must canvass the record to determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. In the Matter of S.B.C., 2002 OK 83, ¶6, 64 P.3d 1080, 1081. Our appellate review does not require a re-weighing of the evidence presented at trial.

ANALYSIS ¶7 Mother’s lone argument on appeal is that the State failed to prove by clear and convincing evidence that termination was in the best interests of C.D.P.F. Specifically, Mother claims the State failed to prove that she did not correct the condition leading to the deprived adjudication, in particular, the claim that she used drugs. ¶8 We find Mother’s argument unpersuasive.

The jury heard extensive testimony and received considerable other evidence that would have allowed them to make an informed determination on the question of whether termination was in the best interest of the child. The State presented evidence that Mother failed no less than three drug tests and refused countless other Vol. 81 — No. 31 — 11/20/2010

drug tests and that, because of this failure, Mother’s driver’s license had been revoked.

The State further offered evidence that Mother failed to complete domestic violence counseling as well as the substance abuse treatment program ordered by the trial court.4 Two DHS workers provided testimony at trial and, based on their involvement with Mother, both believed that termination of Mother’s parental rights was in the best interest of C.D.P.F. 5 ¶9 Despite multiple positive drug tests, Mother maintains she did not use drugs. She claims the test results were false positives and even claimed to have paid for independent testing which resulted in one positive and one negative test. Mother argues DHS worked against her by urging her to do inpatient substance abuse treatment when to do so, she claims, would have caused her to lose her rental residence. A DHS worker testified that after one of Mother’s positive test results Mother told her that she had accidentally ingested “blue pills” that she later learned contained methamphetamines. After another positive test result, a different DHS worker testified that Mother informed her that she must have tested positive as a result of licking her fingers after cleaning out a car where her relatives had used meth. ¶10 In Mother’s favor, a surprise visit by the CASA worker indicated no evidence of drug use visible in the home. Mother also testified that she has two grown children who are professionally employed and an older teenage son who was a 4.0 student. ¶11 Although the State presented clear and convincing evidence of a drug problem, Mother refuses to admit any problem and refuses to seek the court-ordered help necessary to avoid the termination of her parental rights to C.D.P.F. The State met its burden at trial and a jury, after evaluating Mother’s credibility first-hand, recommended the termination of Mother’s parental rights. The trial court did not err in issuing the order of termination.

CONCLUSION ¶12 After canvassing the record in the instant matter to determine if the trial court’s findings rest on the clear and convincing standard, we find sufficient evidence exists to terminate Mother’s parental rights. The verdict of the jury and the trial court’s subsequent judgment are affirmed.

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OPINION OF THE COURT OF CIVIL APPEALS VACATED AND THE RULING OF THE TRIAL COURT AFFIRMED. CONCUR: EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, KAUGER, WATT, WINCHESTER, REIF, JJ.

Biscone & Biscone Attorneys

DISSENTS: COLBERT, J. 1. Evidence in the record indicates that this charge was later dismissed but the grounds for its dismissal are not recorded.

2. Father voluntarily terminated his parental rights.

3. The Order of Disposition, filed August 21, 2007, provided that Mother must: Provide a home that is safe, stable, and hygienic, with furniture and appliances suitable to meet the basic needs of the child; a. Demonstrate the ability to provide a stable family environment that combines the appropriate support, nutrition, education, protection and nurturing; b. The mother shall complete a substance abuse treatment program approved by said Department and not use unlawfully or abuse controlled dangerous substances, nor associate with those that do, and submit to random drug tests at the request of the Department of Human Services; c. Complete a course of counseling approved by said Department designed to teach the impact of domestic violence on children, eliminate domestic violence from relationships and demonstrate they can put into practice that which is learned.

4. Mother testified that she completed a six-week outpatient substance abuse course but offered no evidence of completion. In fact, Mother admitted that due to her failed drug test in January 2008, the facility called to inform her that she would need to complete a higher level of care. Mother refused.

5. A CASA worker also gave a guarded opinion that termination was in the best interests of the child.

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DIVORCE MATTERS, PROPERTY DISPUTES, PROBATE ISSUES, CONTRACTS, MEDICAL MALPRACTICE, PERSONAL INJURY

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The Oklahoma Bar Journal

Vol. 81 — No. 31 — 11/20/2010

2010 EMPLOYMENT LAW SEMINAR presented by the Oklahoma Employment Lawyers Association

Date: Location: CLE CREDIT: Tuition:

Friday, December 3, 2010 at 9 a.m. to 5 p.m.

Crabtown in Bricktown, Okla. City CLE credit proposed for 8.0 hours including 1.8 hours of ethics. $200 for registration by Nov 29, 2010. (Buffet lunch included) $225 for registration Nov. 30 and after. $ 25 discount for OELA members & government/public service attys CANCELLATION There will be a $25 charge for cancellations prior to Nov. 30. No POLICY: refunds after Nov. 30, however written materials will be provided.

Materials may be purchased for $75 REGISTRATION: Make checks payable to: OELA Send registrations to OELA, 325 Dean A. McGee, Okla. City, OK 73102 Fax No: (405) 235-6111 For more information contact Lori Lanon at 235-6100

9:00-10:30 Ethics for the employment lawyer Ethical issues for the corporate counsel: Nathan Whatley Ethical issues for the employee’s counsel: Mark Hammons Ethical issues for the government lawyer David Lee Ethical issues from a mediator’s perspective Steve Boaz Presentation, panel discussion, question and answer session 10:30-10:40 Break 10:40-Noon Gavin W. Manes, Ph.D, President Avansic Strategies for processing and reviewing emails Bad corporate decisions on emails Noon to 1:00 pm Lunch Buffett (included in seminar cost) 1:00-3:00 Intersecting Leave Rights: FMLA, ADA, Worker’s Compensation, USERRA and State Law State Employee Leave Rights Daniel Gamino Job Protection Under Worker’s Compensation Joe Biscone ADA/FMLA Leave Rights Stephanie Manning USERRA: Leave Rights Under The New Law Amber Hurst Presentation, panel discussion, question and answer session 3:00-3:10 Break 3:10-4:05 New Developments in Federal Employment Law Leonard Court 4:05-5:00 New Developments in Oklahoma Employment Law Mark Hammons Crabtown is located at 303 E. Sheridan. Parking is available at Bricktown/Hampton Inn Parking, 222 E. Sheridan at a $5 per day (excluding special evidence) parking rate.

Vol. 81 — No. 31 — 11/20/2010

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2661

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The Oklahoma Bar Journal

Vol. 81 â&#x20AC;&#x201D; No. 31 â&#x20AC;&#x201D; 11/20/2010

Court of Criminal Appeals Opinions 2010 OK CR 25 MICHAEL G. BURGESS, Appellant, v. THE STATE OF OKLAHOMA, Appellee.

Case No. F-2009-308. November 16, 2010 SUMMARY OPINION LUMPKIN, JUDGE: ¶1 Appellant, Michael G. Burgess, was tried by jury and convicted of Engaging in a Pattern of Criminal Offenses (Count 1) (21 O.S.Supp.

2004, § 425); Sexual Battery (Count 2) (21 O.S.Supp.2002, § 1123); Bribery By Public Official (Counts 6, 26, and 36) (21 O.S.2001, § 382); Kidnapping (Count 7) (21 O.S.Supp.2004, § 741); Forcible Oral Sodomy (Counts 8 and 33) (21 O.S.Supp.2006, § 888(B)); and Second Degree Rape (Counts 9, 27, 29, 32 and 34) (21 O.S.Supp.2002, § 1111) in the District Court of Major County, Case Number CF-2008-60.1 The jury recommended as punishment imprisonment for one (1) year and a fine in the amount of $10,000.00 in Count 1; a fine in the amount of $5,000.00 in Count 2; imprisonment for three (3) years in Count 6; imprisonment for five (5) years in Count 7; imprisonment for ten years in Count 8; imprisonment for five (5) years in Count 9; imprisonment for ten years in Count 26; imprisonment for ten years in Count 27; imprisonment for ten years in Count 29; imprisonment for ten years in Count 32; imprisonment for ten years in Count 33; imprisonment for ten years in Count 34; and imprisonment for ten years in Count 36. The trial court sentenced accordingly.2 It is from this judgment and sentence that Appellant appeals. ¶2 Appellant raises the following propositions of error in this appeal: I. The Trial Court Abused Its Discretion In Denying Mr. Burgess’ Motion To Dismiss Counts 1, 26, 27, 29, 32, 33, And 34 Of The Amended Information Because The State Failed To Present Sufficient Evidence At The Preliminary Hearing To Prove That Mr. Burgess Committed The Offenses As Charged In Those Counts.

II. Insufficient Evidence Was Presented To Support Mr. Burgess’ Convictions.

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III. The Jury Instructions As Given Were Not Constitutional And Deprived Mr. Burgess Of His Due Process Rights Under The Fourteenth Amendment To The United States Constitution With Respect To All The Counts For Which He Was Convicted.

IV. In Light Of Unconstitutional Jury Instructions, The Deleterious Effect Of Which Pervaded And Tainted the Evidence Relating To All Of The Allegations Presented At Trial, And In Light Of Uncorroborated And Contradictory Testimony From The Alleged Victims, A Modification Of Mr. Burgess’ Clearly Excessive Sentence Is Warranted. ¶3 After a thorough consideration of these propositions and the entire record before us on appeal including the original records, transcripts, and briefs of the parties, we have determined that neither reversal nor modification of sentence is warranted under the law and the evidence. ¶4 Appellant was the duly elected Sheriff of Custer County. Pursuant to his elected position, Appellant was appointed to serve on the Washita/Custer County Drug Court Team.

Appellant’s office conducted urinalysis testing of the drug court participants and one of his deputies was the drug court compliance officer. Appellant actively participated on the Drug Court Team. ¶5 Appellant befriended drug court participant, J.M. On February 7, 2006, Appellant repeatedly telephoned J.M. and requested that she travel from Custer County to his hotel room in Oklahoma City. J.M. acquiesced when Appellant demanded that she meet him or he would vote for her termination from drug court. When she arrived at the hotel, Appellant provided J.M. with alcohol, engaged in sexual intercourse with her, and performed oral sodomy on her person. Thereafter, Appellant engaged in sexual intercourse with J.M. at her home, at the home of a friend of the Appellant’s, at a motel, and at Appellant’s home while his wife was on vacation. At Appellant’s home, Appellant gave J.M. alcohol, engaged in several instances of intercourse, and performed oral sodomy upon J.M. Appellant and J.M.

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travelled to Oklahoma City for Drug Court Day at the State Capitol. Appellant repeatedly demanded and engaged in instances of sexual intercourse with J.M. in his hotel room.

proving their sexual relationship. Appellant offered to help C.T.’s brother get out of prison if she would obtain the evidence from J.M. and bring it to him.

¶6 During this timeframe, Appellant intervened in J.M.’s urinalysis testing at the Custer County Jail. Appellant instructed his employees to permit J.M. to test in the courthouse bathroom which was nicer than the jail restroom. On at least two separate occasions, Appellant intervened and stopped the jail employees from reporting J.M. for a positive test, took J.M. for a mouth swab test, and had the jail employees discard the positive urinalysis test.

¶10 The investigation into the circumstances further revealed that in the fall of 2005, Appellant had groped the buttocks and chest of a female deputy against her will while she was on duty inside the county courthouse. She left her employment with the county soon thereafter.

¶7 On January 3, 2007, Appellant assisted the drug court compliance officer with an investigation into drug court participant, B.B. Appellant discovered that B.B. was in violation of the Drug Court’s rules. He contacted the Drug Court Judge and pursuant to her order took B.B. into custody. The compliance officer assisted and investigated other drug court participants while Appellant drove B.B. to the jail.

Through repeated comments on her future, Appellant painted the grim picture of jail, termination from Drug Court, and imprisonment for B.B. Appellant told B.B. that he could save her from prison and make her stay in the jail more comfortable. He pulled off the road near two barns and told B.B. that he would help her if she would help him. Appellant directed B.B. to perform oral sodomy on his person and engaged in sexual intercourse with B.B. The records within the sheriff’s department reflected that it took Appellant approximately 44 minutes to transport B.B. the 5 mile distance from her home to the jail. ¶8 In May, 2007, J.M. informed Appellant that she could not do it anymore. Appellant informed her: “Well, you know what that means.” (Tr. V, 1210, 1453-54). Subsequently, J.M. tested positive on her urinalysis test at the Custer County Jail. She tried to get Appellant to intervene both before and after the test, however, he ignored her requests. J.M. was placed in the Custer County Jail and sanctioned to one year inpatient treatment by the Drug Court. As she left the courtroom, she screamed: “I’ve effed [sic] the sheriff all this time, you can’t do this to me.” (Tr. V, 1211, 1490-92). ¶9 J.M.’s cousin, C.T., contacted Appellant and informed him that J.M. had DNA evidence 2664

¶11 Appellant testified in his own defense at trial. He denied the incidents with B.B. and the female deputy. He flatly admitted a sexual relationship with J.M. but denied that there was anything unlawful about it. Under cross examination, Appellant was forced to admit that the Drug Court had control or authority over the lives of its participants. ¶12 In Propositions I and II, Appellant seeks to attack the special provisions of 21 O.S.Supp.2002, §§ 1111 and 888(B)(4) that make it a crime for certain government actors to engage in sex acts with persons under their supervision. He argues that he was not an employee of a state agency, county, or political subdivision that had supervision or authority over the victim. OUJI-CR(2d) 4-124, 4-128 (Supp.2007). ¶13 This Court has previously recognized that “any county, precinct, district, city, town or school district” constitutes a political subdivision. Davenport v State, 20 Okl.Cr. 253, 256, 202 P. 18, 19 (1921); Smith v. State, 1963 OK CR 48, ¶ 11, 381 P.2d 900, 903; Guy v. City of Oklahoma City, 1988 OK CR 148, ¶ 10, 760 P.2d 1312, 1314.

Both the County Sheriff’s office and the District Court’s Drug Court Team constitute political subdivisions of the state. ¶14 The Drug Court programs are statutorily required to provide “vigilant supervision” of their participants. 22 O.S.2001, § 471.1(G).

“Whenever possible, a Drug Court team is to be established to oversee implementation of the Drug Court program with regard to each Drug Court participant.” Alexander v. State, 2002 OK CR 23, ¶ 9, 48 P.3d 110, 113. “[T]he judge overseeing a defendant’s Drug Court program is part of that Drug Court team.” Id., 2002 OK CR 23, ¶ 10, 48 P.3d at 113. At a minimum the team should consist of the assigned judge, a district attorney, and a defense attorney. 22 O.S.2001, § 471.1(D). The Drug Court Team can designate other members to assist. Id. By statute, the Sheriff of the county is required to participate in the

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initial review of an offender to determine their eligibility for the program if they are held in the county jail. 22 O.S.2001, § 471.2(A). “The Drug Court Supervising Staff create the treatment plan for the participants and monitor their progress. 22 O.S.2001, § 471.4. ¶15 The Legislature has defined the term “employee” as any person who is authorized to act in behalf of a political subdivision or the state with or without being compensated. 51 O.S. Supp.2010, § 152(7). This includes all elected or appointed officers, members of governing bodies and other persons designated to act for an agency or political subdivision. Id.; Instruction No. 3-16, OUJI-CR(2d) (Supp.2009). ¶16 As to Proposition I, Appellant did not file a formal motion to quash before the district court arraignment thus he has waived appellate review of the alleged error for all but plain error. Primeaux v. State, 2004 OK CR 16, ¶ 18, 88 P.3d 893, 900; Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693. At preliminary hearing, the State showed that the offenses set forth in Counts 1, 26, 27, 29, 32, 33, and 34 had been committed and that there was probable cause that Appellant committed each offense. Primeaux, 2004 OK CR 16, ¶ 20, 88 P.3d at 900; citing 22 O.S.Supp.2003, § 258; McCracken v. State, 1994 OK CR 68, ¶ 8, 887 P.2d 323, 327. Probable cause existed that the victim was under the legal custody or supervision of a political subdivision of the state and that Appellant was an employee of the political subdivision that exercised authority over her. 21 O.S.Supp.2002, § 1111(A)(7). Plain error did not occur. ¶17 It must be noted that the Oklahoma Legislature has determined that those citizens who have been entrusted to the custody, supervision or authority of individuals serving in the capacity of officers, employees, or contractors with the state or its political subdivisions are due special protection during the time of custody or supervision. It is readily apparent that Appellant, as the elected Sheriff of Custer County, and statutorily designated member of the Drug Court team, is a person included within the parameters of the penal statutes in which the Legislature sought to include as owing special trust and confidence to those citizens ordered into their custody or control.

Appellant violated that trust, and the provisions of the penal statutes, drafted to protect those committed citizens. The provisions of both 21 O.S.Supp.2002, §§ 1111 and 888(B)(4) Vol. 81 — No. 31 — 11/20/2010

prohibit a county employee from engaging in sex acts with an individual under the county’s supervision. Appellant as County Sheriff and designated Drug Court Member is included within both statutes as an individual for whom it is unlawful to engage in sex acts with persons under their supervision ¶18 As to Proposition II, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the victims were under the legal custody or supervision of a political subdivision of the state and that Appellant was an employee of the political subdivision that exercised authority over the victims beyond a reasonable doubt. Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559; Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. ¶19 Within Proposition II, Appellant also challenges the sufficiency of the evidence as to those offenses concerning victim, B.B. We find that the testimony of prosecuting witness B.B. did not appear incredible or so unsubstantial as to make it unworthy of belief. Ray v. State, 1988 OK CR 199, ¶ 8, 762 P.2d 274, 277; Gilmore v. State, 1993 OK CR 27, ¶ 12, 855 P.2d 143, 145.

The jury rationally concluded that the prosecuting witness was in Appellant’s vehicle a sufficient period of time for the offenses to have occurred. Plantz v. State, 1994 OK CR 33, ¶ 43, 876 P.2d 268, 281. Viewing the evidence in the case in the light most favorable to the State, we find it was sufficient to prove beyond a reasonable doubt that Appellant was guilty of the offenses concerning B.B. Spuehler, 1985 OK CR 132, ¶ 7, 709 P.2d at 203-04. ¶20 As to Proposition III, Appellant properly preserved appellate review of his claim that the jury instructions inaccurately stated the law by raising a timely objection at trial. Simpson, 1994 OK CR 40, ¶ 2, 876 P.2d at 693. We find that the trial court did not abuse its discretion as the jury instructions accurately stated the applicable law. Cipriano v. State, 2001 OK CR 25, ¶ 14, 32 P.3d 869, 873; Patton v. State, 1998 OK CR 66, ¶ 49, 973 P.2d 270, 288. ¶21 Appellant further claims that the jury instructions removed the State’s burden to prove all of the essential elements of the offenses. Appellant did not raise this challenge before the district court, thus he has waived appellate review of the challenge for all but plain error.

Simpson, 1994 OK CR 40, ¶ 2, 876 P.2d at 693.

Plain error did not occur as the instructions did

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not relieve the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Birdine v. State, 2004 OK CR 7, ¶ 3, 85 P.3d 284, 285; Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Regardless, any error in the instructions was harmless beyond a reasonable doubt based upon the overwhelming evidence of Appellant’s guilt.

Birdine, 2004 OK CR 7, ¶ 6, 85 P.3d at 286. ¶22 As to Proposition IV, we find Appellant’s sentences are within the applicable statutory ranges and when considered under all the facts and circumstances of the case, are not so excessive as to shock the conscience of the Court. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149; Freeman v. State, 1994 OK CR 37, ¶ 38, 876 P.2d 283, 291. We further find Appellant was not denied a fair trial by cumulative error. Ashinsky v. State, 1989 OK CR 59, ¶ 31, 780 P.2d 201, 209. ¶23 Accordingly, this appeal is denied.

APPEARANCES ON APPEAL Alecia Felton George, George Law Office, P.O. Box 21907, Oklahoma City, OK 73156, Counsel for Appellant W.A. Drew Edmondson, Attorney General of Oklahoma, William R. Holmes, Assistant Attorney General, 313 N.E. 21st St., Oklahoma City, OK 73105, Counsel for the State OPINION BY: LUMPKIN, J. C. JOHNSON, P.J.: CONCUR A. JOHNSON, V.P.J.: CONCUR LEWIS, J.: CONCUR IN RESULT SMITH, J.: CONCUR 1. The jury acquitted Appellant on Counts 3, 4, 5, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 30, 31, and 35 of the Amended Information. The charges were originally filed in Custer County, however, after preliminary hearing bindover, and prior to trial, a change of venue was granted, and the case was transferred to Major County.

2. Appellant will be required to serve 85% of his terms of imprisonment for forcible sodomy. 21 O.S.Supp.2002, 13.1(15). The trial court ordered each of Appellant’s sentences to run consecutive to one another except that the court ordered Count 9 to run concurrent with Count 8, and Count 33 to run concurrent with Count 32.

DECISION ¶24 The judgment and sentence are hereby AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF MAJOR COUNTY APPEARANCES AT TRIAL Steven Huddleston, Timothy R. Henderson, Huddleston, Pike, Henderson & Parker, P.O. Box 95146, Oklahoma City, OK 73143, Counsel for Appellant James M. Boring, District Attorney, James L. Swartz, Assistant District Attorney, 319 N. Main, Guymon, OK 73942, Counsel for the State

IN HONOR OF THE RETIREMENT OF

OKLAHOMA SUPREME COURT JUSTICE RUDOLPH HARGRAVE PLEASE JOIN US FOR A BRIEF CEREMONY IN THE SUPREME COURT COURTROOM FOLLOWED BY A RECEPTION IN THE GRAND HALLWAY OF THE SUPREME COURT. MONDAY • DEC. 13, 2010 2 – 4 p.m.

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The Oklahoma Bar Journal

Vol. 81 — No. 31 — 11/20/2010

You are not alone.

Men Helping Men

Women Helping Women

December 9 Time - 5:30-7 p.m.

Location

December 2 Time - 5:30-7 p.m.

Location

The Oil Center – West Building

The Oil Center – West Building

1st Floor Conference Room 2601 NW Expressway Oklahoma City, OK 73112

10th Floor 2601 NW Expressway, Suite 1000W Oklahoma City, OK 73112

* Food and drink will be provided! * Meetings are free and open to male OBA members. * Reservations are preferred. (We want to have enough space and food for all.)

* Food and drink will be provided! * Meetings are free and open to female OBA members. * Reservations are preferred. (We want to have enough space and food for all.)

For further information and to reserve your spot, please e-mail stephaniealton@cabainc.com.

For further information and to reserve your spot, please e-mail stephaniealton@cabainc.com.

L AW YERS HELPING L AW YERS A SSISTANCE PROGR AM Vol. 81 — No. 31 — 11/20/2010

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Volunteers Critical to OBA Success

I

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

–––––––––––––––––––––––––––––––– Standing Committees ––––––––––––––––––––––––––––––––

• Access to Justice • Awards • Bar Association Technology • Bar Center Facilities • Bench and Bar • Civil Procedure • Communications • Disaster Response and Relief • Diversity • Evidence Code

• Group Insurance • Law Day • Law-related Education • Law Schools • Lawyers Helping Lawyers Assistance Program • Lawyers with Physical Challenges • Legal Intern • Legislative Monitoring • Member Services

• Paralegal • Professionalism • Rules of Professional Conduct • Solo and Small Firm Conference Planning • Strategic Planning • Uniform Laws • Women in Law • Work/Life Balance

Note: No need to sign up again if your current term has not expired. Check www.okbar.org/members/committees/ for terms Please Type or Print

Name ____________________________________________________ Telephone _____________________ Address ___________________________________________________ OBA # _______________________ City ___________________________________________ State/Zip_________________________________ FAX ______________________________________ E-mail ________________________________________

Have you ever served on this committee?

1st Choice ___________________________________ q Yes q No 2nd Choice __________________________________ q Yes q No 3rd Choice __________________________________ q Yes q No Committee Name

If so, when?

How long? _____________________ _____________________ _____________________

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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Vol. 81 — No. 31 — 11/20/2010

2010 LWO Fall Seminar Friday, December 10th 8 a.m. – 4 p.m. Oklahoma History Center Case Law Update Wayne Lee, Attorney, Fred Boettcher Law Office

Bad Faith and Subrogation Rex Travis, Attorney

How to Recognize Third Party Cases in Our Comp Cases: Crashworthiness – Serious Injuries Need Not Occur John Merritt, Attorney

New Law Honorable William F. Foster, Judge of the Workers’ Compensation Court; Tim Cooley, Attorney, Law Firm Looney, Nichols & Johnson, and Bob Burke, Attorney and Author

Major Cause – How it Was and How it is William Gillock, M.D., Hugh McClure, D.C. and LeRoy E. Young, D.O.

Disqualification – The Bulwark of Impartiality, a Check List of Ethical Considerations Honorable John F. Reif, Justice of Oklahoma State Supreme Court Continental Breakfast and Lunch will be served

To register, please contact Kellie Currie 405-848-1467 or lwo@coxinet.com LWO Members $155 Non-Members $175 Legal Staff $100 6.5 CLE Credits (pending)

NOTICE: DESTRUCTION OF RECORDS Pursuant to Court Order SCBD No. 3159, the Board of Bar Examiners will destroy the admission applications of persons admitted to practice in Oklahoma after 3 years from date of admission.

Those persons admitted to practice during 2006 who desire to obtain their original application may do so by submitting a written request and $25 processing fee. Bar exam scores are not included. Requests must by received by Dec. 17, 2010.

Please include your name, OBA number, mailing address, date of admission, and daytime phone in the written request. Enclose a check for $25, payable to Oklahoma Board of Bar Examiners.

Mail to: Oklahoma Board of Bar Examiners, P.O. Box 53036, Oklahoma City, OK 73152.

Vol. 81 — No. 31 — 11/20/2010

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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 112 BAER, TIMBERLAKE, COULSON & CATES, P.C., Plaintiff/Appellee, vs.

RAHMANA WARREN, Defendant/ Appellant, HERBERT E. WARREN, JOHN DOE, JANE DOE, GREGORY JACKSON, SPOUSE, IF ANY, OF GREGORY JACKSON, RODNEY STEWARD, SPOUSE, IF ANY, OF RODNEY STEWARD, MARISHA A. STEWARD, SPOUSE, IF ANY, OF MARISHA A. STEWARD, NAEEMAH B. STEWARD, and SPOUSE, IF ANY, OF NAEEMAH B. STEWARD, Defendants.

Case No. 106,212. August 13, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE BRYAN C. DIXON, TRIAL JUDGE AFFIRMED R. Greg Andrews, ANDREWS & ECKSTEIN, Norman, Oklahoma, for Plaintiff/Appellee, Cynthia Rowe D’Antonio, THE LAW OFFICES OF SMITH & D’ANTONIO, Oklahoma City, Oklahoma, for Defendant/Appellant.

Wm. C. Hetherington, Jr., Judge: ¶1 Rahmana Warren appeals a judgment in favor of attorneys Baer, Timberlake, Coulson & Cates, P.C., arguing Baer was not a holder of note and should not be allowed to recover when a mistake in a payoff amount used in closing documents was caused by its own calculation error. The judgment of the trial court is supported by competent evidence and is not affected by an abuse of discretion or error of law. Consequently, the trial court’s judgment is AFFIRMED. STANDARD OF REVIEW ¶2 “Issues of law are reviewable by a de novo standard. An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court’s legal rulings.” Brown v. Nicholson, 1997 OK 32, n. 1, 935 P.2d 319, 321. “[A]n adjudication of a fact 2670

by a lower tribunal is reviewed by different standards according to the type of controversy and type of adjudication made.” Christian v.

Gray, 2003 OK 10, ¶ 41, 65 P.3d 591, 608. A clear abuse of discretion standard includes appellate review of both fact and law issues.

Id., ¶ 43, p. 608. An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling. Fent v.

Oklahoma Natural Gas Co., 2001 OK 35, ¶12, 27 P.3d 477, 481. “When, as here, the case is tried to the court, its determination of facts are accorded the same force as those made by a well-instructed jury. If any competent evidence supports the trial court’s findings of fact, the same will be affirmed.” K & H Well Service, Inc. v. Tcina, Inc., 2002 OK 62, ¶9, 51 P.3d 1219, 1223 (footnote omitted). Unless the record clearly shows an abuse of discretion by the trial court, its decision will not be disturbed. Id. ¶9, p. 1223.

FACTS ¶3 Warren executed a promissory note for the principle amount of $180,500 and a mortgage on July 25, 2005.1 As part of the same transaction, she and Herbert Warren, her husband, signed a mortgage in favor of Argent Mortgage Company, LLC. ¶4 U.S. Bank National Association, (U.S. Bank) filed suit on July 25, 2006, claiming Warren’s payments had fallen into arrears and her note was in default. U.S. Bank sought foreclosure of the mortgage, a judgment in rem, and an in personam judgment against Warren.2 Baer, a law firm with a real estate practice which represents lenders in the mortgage industry, initially acted as counsel for U.S. Bank.3 ¶5 Meanwhile, Warren found a buyer for the property. Between August 30, 2006 and October 31, 2006, she obtained three loan pay-off quotes from Baer, the last of which contained a column of numbers which were incorrectly added. The payoff quote advised, “Please note that the costs listed as ‘estimated costs’ are an estimate only of the costs which will accrue up and until the expiration of this quote,” the

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“payoff figure is valid only until November 2, 2006,” and that “[a]ll figures are subject to our client’s verification after receipt.”

as Attorney in Fact for U.S. Bank National Association, as Trustee,” which was recorded on January 30, 2007, at the request of ASC.

¶6 As a result of the incorrect addition and apparently, second error, when the property was sold at a November 1, 2006 closing, an incorrect figure was used for the loan pay-off.

The sum used in closing documents and sent as the payment from closing to Baer was $191,697.43, i.e., $6.00 more than the pay-off quote total. The source for the $6.00 discrepancy is not clear from the record. A November 1, 2006 check for the new incorrect amount was sent to Baer by the title company handling the closing. Baer sent one of its own checks the next day, November 2, 2006, for this new incorrect amount ($191,697.43) to its client, Wells Fargo Home Mortgage d/b/a America’s Servicing Company, (ASC) the company servicing U.S. Bank’s loan.

¶10 On March 30, 2007, Warren and her husband filed a first amended answer to the first amended petition in U.S. Bank’s lawsuit, raising affirmative defenses including that U.S. Bank did not demonstrate it was a real party in interest; an accord and satisfaction had occurred when $191,697.43 was delivered on November 1, 2006; it had accepted the payment and was estopped from claiming an additional amount; an additional payment would be illegal as unconscionable and unreasonable; payment had been made based upon U.S. Bank’s demand; the debt was released as evidenced by the letter advising of the mortgage release; and the right to additional monies was waived by the acceptance of the monies tendered.

¶7 Warren moved to dismiss U.S. Bank’s lawsuit on November 29, 2006, arguing acceptance of the $191,691.434 was an accord and satisfaction of her debt.5 U.S. Bank responded on December 21, 2006, arguing, in part, there was not a cancellation or discharge of the amount due under the note or an accord and satisfaction because there had been a mistake or unintentional cancellation. It argued its agent, Baer, did not intend to accept any amount less than full payment on the note.

The trial court later denied Warren’s motion to dismiss. ¶8 In the meantime, Baer’s November 2, 2006 check was returned to it as insufficient to pay the loan amount. Baer issued a new check, dated December 14, 2006, for $201,691.43, the correct amount for payoff as of the November closing. In a December 27, 2006 facsimile, ASC advised Baer the pay-off was $9,190.43 short as of December 28, 2006, because $2,911.00 had been paid on November 14, 2006 for insurance, $2,402.20 had been paid on December 14, 2006 for taxes, and ASC wanted to recoup attorney fees and costs billed by Baer. The notice also advised the shortage was continuing to accrue at $42.10 per day. Baer issued a check dated December 27, 2006 for the $9,190.43 shortage. ¶9 In a letter dated December 29, 2006, ASC congratulated Warren and informed her it “had processed funds to pay your loan in full.” Warren received a January 23, 2007 Release of Mortgage from “Wells Fargo Bank, N.A. as successor by merger to Wells Fargo Home Mortgage, Inc. Vol. 81 — No. 31 — 11/20/2010

¶11 On August 10, 2007, U.S. Bank moved to substitute Baer6 as plaintiff, advised Baer “has been subrogated to the rights of U.S. Bank under the promissory note,” and asked “that the caption of this matter be modified” to reflect Baer as the sole plaintiff. The trial court granted the motion to substitute on August 22, 2007. ¶12 On November 26, 2007, Baer filed a motion for summary judgment, claiming there was no substantial controversy as to any material facts, Warren owed a balance on her note, and it was entitled to judgment as a matter of law.7 Warren responded, and then amended her response to include her own motion for summary judgment, claiming, among other things, that a novation occurred and she was not liable for any balance on the note due to Baer’s mistakes and lack of care.8 ¶13 The case proceeded to a non-jury trial.

Baer contended its cause of action was for breach of contract due to a failure by Warren to pay the full amount due on the note. It argued it was a holder of the note, any cancellation or discharge was “inoperative due to being an unintentional mistake made in the calculation of the payoff,” and such an unintentional act did not amount to an accord and satisfaction. ¶14 Baer’s president, Donald James Timberlake, Jr., testified his firm never intended to accept payment of anything less than the full amount due on the note, Baer had paid the shortage to facilitate a release of the mortgage for the benefit of the new purchaser of the property, and Warren had not paid in full her

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note or provided any consideration to Baer for accepting less than the amount actually owed under the note. He also testified the note, which had been indorsed in blank, was a bearer instrument and did not pass via assignment.

He testified the original suit was for a money judgment based upon the note default which was a breach of contract. Once a money judgment was obtained, the initial plan had been to proceed to a foreclosure of the property securing the note. ¶15 Warren testified to receiving the payoff quote and relying on it to close the sale to a third-party. She did not dispute an error in calculation had occurred. She received notice of underpayment from Baer approximately three weeks after the closing. Warren testified she has not received back the original note, but upon receiving the December 29, 2006 letter from ASC and the release of mortgage, she believed the note was paid off and both it and the mortgage had been released and cancelled. ¶16 After Baer rested its case, Warren moved for a directed verdict, arguing Baer had not proven a cause for breach of contract, nothing in the petition in the case states a claim for $10,000,9 there was no evidence of an assignment to support subrogation, and “there was nothing to assign” because “[t]he loan had been paid” at the time the note was held by U.S. Bank. Warren also claimed Baer could not meet the requirements to be a holder in due course due to its knowledge about the loan’s default status when suit was filed and its own involvement in the creation of the $10,000 payment issue. The trial court denied the motion for directed verdict, the parties were granted leave to file trial briefs, and the matter was taken under advisement. ¶17 In its Journal Entry of Judgment, the trial court found Baer made an unintentional $10,000 mistake when adding up items in a payoff quote, it did not intend to reduce the amount owed under the note, Baer was a holder of the note, Warren knew or should have known the third payoff total quoted to her was due to a mistake, she owed $9,994 plus accrued interest to the date of judgment, and she had not proven her affirmative defenses. The trial court agreed the additional charges accruing after the date of closing for items such as taxes and insurance were caused by “mis-communication and negligence” and found Warren was not responsible for these charges. The trial 2672

court entered judgment for a total of $11,382.55 for principle and interest with post-judgment interest,10 in favor of Baer.

ANALYSIS ¶18 Warren appeals, arguing Baer did not qualify as a holder in due course, the trial court erred in finding Baer made a simple error rather than inexcusable neglect for which it should be accountable, and the trial court erred in finding she had breached a contract with Baer. In its answer brief, Baer agrees it is not a holder in due course11 and claims only to be a holder of an unsecured note. This was the status as found by the trial court. ¶19 Warren’s reply brief argues Baer should not be deemed a holder based upon a special indorsement on the note limiting payment to Argent Mortgage Company, LLC. The note contains the special indorsement text “pay to the order of,” which indicates it may only be negotiated by the one named, here Argent. 12A O.S.2001 § 3-205(a). However the note also bears a subsequent indorsement in blank, which rendered it payable to bearer and negotiable by transfer of possession alone, 12A O. S.2001 § 3-205(b), here by U.S. Bank and then Baer. Indorsements pose no barrier to Baer’s holder status. ¶20 Warren claims Baer’s errors were “inexcusable negligence,” not simple mistake. She argues Baer may not be a holder of the note or recover based upon its own errors, as reflected by not only the addition miscalculation in the payoff quote but also by differences between the quote, the sum used at closing and in Baer’s original check to ASC, and the need for payment of additional sums due to the shortage in the first check tendered by Baer. Warren also contends Baer “should not be allowed to collect its alleged deficiency on the sale of real property by resorting to the U.C.C.” and the note should be deemed satisfied as of the property sale because it failed to timely follow statutory requirements to collect a deficiency. ¶21 We address this last contention first. This case began as an action on a note and to foreclose a mortgage due to Warren’s failure to timely pay on her note and in accordance with her mortgage. Warren argues that once litigation began, Baer was required to follow foreclosure statutory procedures and because it did not timely assert a deficiency following the sale of the property securing her mortgage according to statutory procedure, it is barred from

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recovery. The words or phrases used by the Legislature must be understood in the context of all of a statute, not in an abstract sense, and understood so as to best harmonize with other parts. Matter of Estate of Little Bear, 1995 OK 134, 909 P.2d 42. ¶22 In citing to Bank of Oklahoma, N.A. v.

Welco, Inc., 1995 OK CIV APP 43, 898 P.2d 172, and concentrating her analysis on use of the word “sale” in that case, Warren fails to give due consideration to the context for that same word in § 686, which refers to an “order of sale” to satisfy a mortgage upon foreclosure.

The “sale” here was a private sale and was not made pursuant to such an order. There was no foreclosure in this proceeding. Consequently, 12 O.S.2001 § 686,12 which creates a time limit for claims for recovery of a post-judgment deficiency after foreclosure, has no application here. ¶23 There is no dispute as to the mistaken figure at closing. Warren did not timely deliver sufficient funds to pay off her note. The payoff quote warned “[a]ll figures are subject to our client’s verification after receipt,” and that their client “reserves the right to adjust the quotation set forth herein.” In bolded type, the payoff quote also warns “[t]hese costs are estimated only as the actual amount cannot be determined as of the date of this letter. . . In the event that the actual costs exceed the amount of the estimate, you will be responsible [sic] the excess amount.” ¶24 The trial court found Warren should have known the total in the third and last payoff quote was incorrect because she had not made any additional payments since her default and since receiving the first and second quotes, which were both higher. We agree.

Clearly, the mortgage release and the letter ASC sent to Warren added to the confusion about her debt on the note. However, no fees, costs or other items owed were omitted in the third quote. There is no allegation or proof of any intentional concealment of the amounts owed. Nothing prevented anyone from adding the payoff items up correctly. The evidence only shows the figures were just totaled up incorrectly by Baer. ¶25 Cases addressing unintentional or mistaken cancellation of a negotiable instrument are not on point, but the theories applied provide some guidance in addressing the issues presented. In Hanna v. Parrish, 1957 OK 277, 317 Vol. 81 — No. 31 — 11/20/2010

P.2d 745, a note was marked “paid” and returned to the borrower by a lender, and a mortgage was cancelled. There, the Court found whether the party claiming the mistake had met their burden of so proving, thereby rebutting a presumption of payment created by the maker’s possession of the note, was a question for the jury. ¶26 The amount Warren paid at closing was $9,994 less than what was sufficient to pay off her note. By December of 2006, Baer had paid ASC this shortage and the charges accruing after the closing. However, the note was not cancelled or delivered to Warren, it was transferred to Baer. The addition mistake here is readily apparent by examining the column of numbers itself and there is testimony the total was the result of an error. This presented a question for the trier of fact, here the trial court. ¶27 Baer had possession of the bearer note and, as its holder, was entitled to enforce it.

12A O.S. 2001 § 3-301. No abuse of discretion or error of law occurred in the trial court finding Baer’s addition error was an unintentional mistake, and evidence supports this determination. The judgment is AFFIRMED. BUETTNER, P.J., and HANSEN, J., concur.

1. The note was secured by a mortgage on property at 810 Northeast 50th Street, Oklahoma City, Oklahoma, described as: Part of Lot One (1) in Block Six (6), in the resubdivision of Blocks 1, 6 & 7, Block 5, Block 10, Lots 4, 5, 6 & 7 Block 12, ARCADY STREET and WILLIAMS STREET in THOMPSON’S WOODLAND ADDITION, in Oklahoma County, Oklahoma. as shown by the recorded plat thereof, more particularly described as follows: BEGINNING at a point on the Southwest line of said Lot 1.

34.50 feet Northwest of the Southwest corner of said Lot, and THENCE Northwest along the said Southwest line a distance of 185.50 feet to the Southwest corner of said lot; and THENCE along the Northwest and North lines of said lot to a point on the North line of said Lot, 36.82 feet West of the Northeast corner of said lot; and thence in a straight line in a Southwesterly direction to the point of beginning.

2. A First Amended Petition filed September 26, 2006, named additional defendants who might claim a right “by virtue of a defective sale proceeding” in a probate proceeding in the administration of “the Estate of Espinola Elaine Steward, deceased.” The claims against these defendants and Herbert E. Warren were dismissed without prejudice on January 7, 2008, leaving Warren as the sole remaining defendant.

3. U.S. Bank is identified in the record as a Trustee under a Trust Agreement for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates Series 2005-AR1.

4. This misstates the facts shown in the record, which are that the payment from closing included an extra $6.00. The trial court’s judgment recognizes this $6.00 discrepancy in its finding Warren still owed $9,994.00 after the November 2, 2006 closing.

5. According to Warren’s “Summary of Facts Not in Controversy” in a December 14, 2007 motion to strike or, alternatively, response to a motion for summary judgment by Baer, Warren received a notice about five days after the closing from Baer, which was then U.S. Bank’s counsel, informing her Baer had made a mistake in its calculations for payoff, and the figures used in the HUD 1 Settlement Statement at closing. In her motion, Warren also states she has no funds at hand because she paid funds received at closing to her buyer’s contractor for repairs to the property, and she suggests Baer “go after the title com-

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pany for failing to exercise due diligence and meeting the reasonable standard of care.” However, an affidavit in support of her November 29, 2006 Motion to Dismiss states she “directed” an employee at the title company “to pay $191,691.43 to satisfy the debt here upon sued.”

6. Docket sheets filed in the record list a motion to allow substitution of counsel filed February 27, 2007, and a substitution of counsel filed March 8, 2007. Neither document was designated for inclusion in the appellate record nor do the titles listed on docket sheets suggest which party’s counsel changed. However, Defendants’ First Amended Answer to Plaintiff’s First Amended Petition filed March 30, 2007, was not delivered to Baer but instead was sent to Baer’s appellate counsel, who also appeared for U.S. Bank on the motion to substitute Baer as plaintiff and thereafter for Baer as plaintiff in the district court.

7. In its motion, Baer attributes the $10,000 mistake to “failing to include the categories of fees and costs on the Payoff Quote,” and the quote “did not contain a list of all amounts due and owing under the Note and Mortgage.” No evidence was offered to show any amounts were omitted, only that Baer’s employee made a mistake when adding the listed amounts.

8. The order overruling the motions for summary judgment was not designated by the parties for inclusion in the appellate record.

9. During his testimony, Baer’s president, when asked if the petition or amended petition stated a claim for a $10,000 underpayment, noted that both were filed prior to the creation of the shortage caused by the insufficient payment out of the closing. He contended the claim for default on the note was a claim for breach of contract and further amendment was not necessary while the note remained unpaid.

10. Pursuant to 12 O.S.Supp.2004 § 727.1, the post-judgment interest is equal to the contract rate of the note, 8.55% per annum.

11. At one point in his testimony, Baer’s president responded positively to a question whether his firm was a holder in due course of the note. The evidence does not support such a status and Baer does not adopt this contention in this appeal.

12. Section 686 provides, in pertinent part: The court may, in the order confirming a sale of land under order of sale on foreclosure or upon execution, award or order the issuance of a writ of assistance by the clerk of the court to the sheriff of the county where the land is situated, to place the purchaser in full possession of such land . . . Simultaneously with the making of a motion for an order confirming the sale or in any event within ninety (90) days after the date of the sale, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment.

2010 OK CIV APP 113 ANGELA EDWARDS, individually, and on behalf of JOHNNY G. EDWARDS, an incapacitated person, Plaintiff/Appellee, vs.

ARDENT HEALTH SERVICES, L.L.C., a Delaware corporation authorized to conduct business in the State of Oklahoma; AHS WAGONER HOSPITAL, L.L.C., d/b/a WAGONER COMMUNITY HOSPITAL; and AHS TULSA REGIONAL MEDICAL CENTER, L.L.C., d/b/a TULSA REGIONAL MEDICAL CENTER, Defendants, and OKLAHOMA HEALTH CARE AUTHORITY, Defendant/Appellant.

Case No. 106,291. May 7, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE MARY FITZGERALD, JUDGE REVERSED AND REMANDED Ashley D. Williams, Lynn Rambo-Jones, Oklahoma City, Oklahoma, for Defendant/Appellant, 2674

Michael N. Brown, ABOWITZ, TIMBERLAKE & DAHNKE, P.C., Oklahoma City, Oklahoma, and Ted Sherwood, SHERWOOD LAW FIRM, Tulsa, Oklahoma, for Plaintiff/Appellee.

BAY MITCHELL, JUDGE: ¶1 This case arises from a medical negligence suit filed by Plaintiff/Appellee, Angela Edwards, individually, and on behalf of her husband, Johnny G. Edwards, an incapacitated person (Edwards). Ultimately, the underlying lawsuit was settled and Edwards sought court approval of the settlement. Defendant/Appellant, Oklahoma Health Care Authority (OHCA), objected to the settlement on the basis that Plaintiff’s proposed distribution of settlement funds reduced the amount of OHCA’s lien for reimbursement of medical bills paid by Medicaid. Subsequent to hearing, the trial court entered its Order Approving the Settlement, Apportionment of Damages and Distribution, which was filed on July 23, 2008. ¶2 On August 5, 2008, OHCA filed a Motion for New Hearing, asserting the trial court erred in reducing OHCA’s lien amount. Plaintiff responded by asserting its untimeliness.1 Plaintiff additionally argued the underlying merits of the matter, asserting the correctness of the trial court’s Order Approving Settlement. The trial court thereafter denied OHCA’s Motion for New Hearing without noting any specific basis for its decision. OHCA appeals from the trial court’s denial of its Motion for New Hearing. ¶3 First, we note the trial court properly regarded OHCA’s Motion for New Hearing as the functional equivalent of a motion for new trial regardless of its title. See Horizons, Inc. v.

Keo Leasing Co., 1984 OK 24, 681 P.2d 757. We review a denial of a motion for a new trial for an abuse of discretion. See Robinson v. Okla.

Nephrology Assocs., Inc., 2007 OK 2, ¶6, 154 P.3d 1250, 1253 (denial of new-trial motion reviewed “for error of a pure question of law or for an abuse of discretion which is arbitrary, clearly against the evidence, and manifestly unreasonable”). Additionally, where a motion for “new trial is denied, the movant may not, on appeal, raise allegations of error which were available to him at the time of the filing of his motion for new trial, but were not therein asserted.”

Poteete v. MFA Mutual Ins. Co., 1974 OK 110, ¶23, 527 P.2d 18; 12 O.S. §991(b). To the extent OHCA’s appellate brief contains new arguments on appeal, we will not address them.

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¶4 Plaintiff received medical care and treatment for the injury associated with the underlying lawsuit as a Medicaid recipient. OHCA, the state agency designated to administer Oklahoma’s Medicaid program, paid to the medical providers $381,917.20 of the $432,605.82 it was billed for Plaintiff’s care and treatment.

OHCA was neither a party to the underlying medical negligence action, nor invited to participate in the settlement negotiations.2 Upon the settlement of the underlying action for $1.5 million, Plaintiff sought the trial court’s approval of apportionment of damages and payments in an attempt to distribute funds among Plaintiff’s counsel for attorney fees, an ERISA health care provider with a medical lien, and OHCA with its Medicaid lien. ¶5 Although the record reflects OHCA’s lien amount was $381,917.20 (the amount OHCA actually paid medical providers on behalf of Plaintiff), Plaintiff’s “Application for Approval of Settlement, Order for Apportionment of Damages and Order Approving Distribution” proposed the payment of $119,526.353 to OHCA to fully satisfy OHCA’s lien. Plaintiff arrived at this proposed number by using a formula which we understand to be: $1,173,854.84 (asserted total medical expenses) ÷ $3,000,000 (total value of claim as asserted by Plaintiff) = .3913 or 39.13% (percentage of medical expense to total asserted claim value) Plaintiff then contends 60.87% of the $1.5 million settlement (after attorney fees and costs have been deducted) should go to Plaintiff’s loss of consortium claims and 39.13% should be allocated to satisfy the medical liens. $1,500,000 (settlement amount) less $671,072.97 (attorney fees and costs) = $828,927.10 $828,927 x 60.87% = $504,568 (allocated for loss of consortium claims) $828,927 x 39.13% = $324,359 (allocated for payment of medical liens) Of the $324,359 to be allocated for payment of medical liens, the first $200,000 was allocated to pay a previously settled ERISA lien (ERISA initially covered Plaintiff prior to his Medicaid eligibility4). The remainder of $124,359 was allocated for the OHCA lien.

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¶6 A hearing was held to obtain court approval of the settlement and allocation. Plaintiff’s counsel argued that all interested parties should reduce or compromise their claims or liens.5 Further, Plaintiff contends Arkansas Dep’t of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006), a recent U.S. Supreme Court case construing an Arkansas statute, contravenes 63 O.S. Supp.

2007 §5051.16 , the statutory lien authority relied upon by OHCA, and mandates the reduction of OHCA’s lien. Ultimately, the trial court adopted Plaintiff’s proposed apportionment. ¶7 OHCA contends the ordered reduction of its lien was contrary to statute and case law and there was no clear and convincing evidence that might permit a reduction. OHCA also contends the formula used for reducing its lien was seriously flawed. OHCA also distinguishes the U.S. Supreme Court Ahlborn case, arguing it is inapplicable to the facts here. ¶8 OHCA distinguishes Ahlborn on the basis that the Arkansas statute at issue there failed to limit the state’s recovery/reimbursement from a Medicaid recipient’s settlement to payments for medical care. The Oklahoma statute at issue here provides OHCA with a lien “to the extent of the amount so paid . . . up to the amount of the damages for the total medical expenses . . . unless a more limited allocation of damages to medical expenses is shown by clear and convincing evidence.” 63 O.S. Supp. 2007 §5051.1(D)(1)(d). Unlike this Oklahoma statute that limits the lien recovery to the amount of damages for medical expenses and permits an evidentiary showing to justify a more limited or reduced allocation to OHCA, the Arkansas statute was broadly written so as to authorize the satisfaction of the state’s lien from settlement proceeds attributable to damages for pain and suffering, lost wages, etc., and therefore ran afoul of the federal Medicaid anti-lien statute. Ahlborn, 547 U.S. at 280.7 In addition to the statutory language differences, OHCA further noted the circumstances in Ahlborn were materially different from the circumstances in this case. In Ahlborn, the parties entered into the following critical stipulations, which governed the allocation of the Medicaid recipient’s settlement proceeds: (1) the value of the underlying claim; (2) that the settlement amounted to only one-sixth of the value of the claim; and (3) the specific amount representing compensation for medical expenses. Id. at 274. Such stipulations are absent here.

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¶9 While Plaintiff reads the Ahlborn case in such a way as to wrap all parties in a pro rata blanket reduction rule, a closer inspection reveals the Supreme Court in Ahlborn merely decided that the state’s Medicaid reimbursement extends no further than the portion of the settlement representing medical expenses (in that case, the precise amount stipulated by the parties). In contrast to Ahlborn, the parties here strenuously contest the value of the claim and the amount of the settlement that should be attributable to medical expenses. Further, no party here urges a construction of Oklahoma law, which would violate the pronouncement in Ahlborn because the parties agree the OHCA lien extends no further than the portion of the recovery representing medical costs.8

tions effectively established the value. It is also superior to the ERISA lien. From the settlement proceeds, after payment of Plaintiff’s attorney fees and costs, OHCA is entitled to payment of $381,917.20, in full satisfaction of its lien. We find the reduction of OHCA’s lien is contrary to Oklahoma law, unsupported by the necessary evidence and an abuse of the trial court’s discretion. Upon remand, the trial court is instructed to enter judgment in favor of OHCA for the full amount of its lien.10

¶10 Because the stipulations present in Ahlborn are absent from the settlement here, a hearing to satisfy paragraph (D)(1)(d) of §5051.1 was required.9 Although there was a hearing of sorts, there was no showing “by clear and convincing evidence” to warrant a “more limited allocation” or reduction of OHCA’s lien.

Because the settlement amount is amply sufficient to pay the Plaintiff’s attorney fee and satisfy the OHCA’s lien in full, and, because there was no showing by clear and convincing evidence that OHCA’s lien should be reduced, OHCA is entitled to recovery of the full amount of its lien.

¶14 I would agree with the majority that notice should be given to all parties regarding the settlement conference, but I think the distribution of the funds is correct.

¶11 OHCA additionally argues the trial court’s reduction of its lien is contrary to 63 O.S. Supp. 2008 §5051.1(D) and twenty years of Oklahoma law including State ex rel. Dep’t of Human Services v. Allstate Ins. Co., 1987 OK 91, 744 P.2d 186; Young v. Columbia Southwestern Medical Center, 1998 OK CIV APP 124, 964 P.2d 987. OHCA asserts its statutory entitlement to the full amount of its lien because the settlement amount of $1.5 million, and particularly the 39.13% attributed by the trial court to medical costs, is sufficient to discharge its $381,917.20 lien in full. We agree. The Oklahoma statute governing OHCA liens for the recovery of medical expenses expressly provides “damages for medical costs are considered a priority over all other damages and should be paid by the tortfeasor prior to other damages being allocated or paid.” 63 O.S. §5051.1(A)(1). OHCA’s lien is “inferior only to a lien or claim of the [Plaintiff’s] attorney.” Id. §(D)(1)(a). ¶12 OHCA’s statutory lien is superior to Plaintiff’s claim, of which settlement negotia2676

¶13 REVERSED AND REMANDED. JOPLIN, P.J., concurs.

ROBERT DICK BELL, V.C.J., concurs in part and dissents in part:

1. On March 24, 2010, this Court entered an Order directing the parties to show cause as to why this appeal should not be dismissed.

The parties thereafter filed their responses. Upon due consideration, we find OHCA’s Motion for New Hearing was timely filed in the trial court and therefore, OHCA retained its right to appeal from the denial of the motion.

2. OHCA argued as a ground for new trial that it did not receive sufficient notice of Plaintiff’s Application to Approve Settlement.

OHCA received the Application via facsimile on July 16, 2008 for a hearing held on July 22, 2008. On appeal, OHCA asserts the “hearing by ambush” was in violation of procedural due process. Plaintiff responds by noting OHCA failed to seek a continuance of the hearing in the trial court. Although OHCA’s brief in support of its Motion for New Hearing notes counsel for OHCA made an informal attempt to obtain a continuance, the record is silent as to any formal attempt. “It is the duty of the party surprised [by new evidence], immediately upon discovery thereof, to take the proper steps to continue or delay the trial in order to protect his interests. He may not neglect this duty, speculate upon the verdict, possibly in the hope of obtaining a favorable decision in spite of such surprise, and then, failing in this, obtain a new trial on account thereof.” Fairmont Creamery Co. v. Marshall, 1940 OK 377, 105 P.2d 778, 780 (quoting Ryker v. Dickey, 1936 OK 392, 57 P.2d 816). While we note OHCA may have neglected to protect itself by way of formally seeking a continuance, we nevertheless admonish Plaintiff’s counsel for his failure to timely apprise OHCA prior to settlement as required by 63 O.S. §5051.1(C), particularly in light of its proposed allocation, which clearly adversely impacted OHCA’s interest.

3. Although this is the amount stated in Plaintiff’s Application for Approval of Settlement, Order for Apportionment of Damages and Order Approving Distribution, the trial court’s Order reflects a slightly higher amount of $124,359.14 for payment to OHCA in satisfaction of the lien.

4. The record reflects that the ERISA lien was for medical expenses in excess of $400,000. This lien amount was compromised to $200,000.

5. Counsel for Plaintiff emphasized that he had reduced his fee from 50% to 43.33% of the settlement after payment of his expenses which were taken off the top.

6. §5051.1(A-D) provides in pertinent part as follows: A. 1. The payment of medical expenses by the Oklahoma Health Care Authority for or on behalf of or the receipt of medical assistance by a person who has been injured or who has suffered a disease as a result of the negligence or act of another person creates a debt to the Authority, subject to recovery by legal action pursuant to this section. Damages for medical costs are considered a priority over all other damages and should be paid by the tortfeasor prior to other damages being allocated or paid.

2. The payment of medical expenses by the Authority for or on behalf of a person who has been injured or who has suf-

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fered a disease, and either has a claim or may have a claim against an insurer, to the extent recoverable, creates a debt to the Authority whether or not such person asserts or maintains a claim against an insurer. **** C. The recipient of medical assistance from the Authority for an injury or disease who asserts a claim or maintains an action against another on account of the injury or disease, or the recipient’s legal representative, shall notify the Authority of the claim or action and of any judgment, settlement or compromise arising from the claim or action prior to the final judgment, settlement or compromise.

D. If the injured or diseased person asserts or maintains a claim against another person or tortfeasor on account of the injury or disease, the Authority: 1. Shall have a lien upon payment of the medical assistance to the extent of the amount so paid upon that part going or belonging to the injured or diseased person of any recovery or sum had or collected or to be collected by the injured or diseased person up to the amount of the damages for the total medical expenses, or by the heirs, personal representative or next of kin in case of the death of the person, whether by judgment or by settlement or compromise. The lien authorized by this subsection shall: a. be inferior only to a lien or claim of the attorney or attorneys handling the claim on behalf of the injured or diseased person, the heirs or personal representative, ****

and

d. be applied and considered valid as to the entire settlement, after the claim of the attorney or attorneys for fees and costs, unless a more limited allocation of damages to medical expenses is shown by clear and convincing evidence; (emphasis added).

7. 42 U.S.C. §1396p(a)(1) prohibits States from imposing liens “against the property of any individual prior to his death on account of medical assistance paid . . . on his behalf under the State plan.”

Ahlborn held this federal anti-lien provision prohibits Arkansas from asserting a lien on the Medicaid recipient’s settlement in an amount in excess of the medical expense compensation portion of the settlement (stipulated by the parties at $35,581.47). Ahlborn, 547 U.S. at 292.

8. The Ahlborn Court expressly refrained from deciding whether a state could adopt special rules or procedures pertaining to allocation of tort settlement proceeds for the purpose of preventing Medicaid recipients from seeking to manipulate their damage allocations in order to limit or prevent states from asserting a claim for reimbursement. Ahlborn, 547 U.S. at n. 18.

9. Although paragraph (D)(1)(d) does not specifically require an evidentiary hearing, because it does require a showing by clear and convincing evidence, this implies that such a hearing, or other presentation of, and judicial determination of the evidence, is required for the judge to order a reduction of the lien.

10. Plaintiff raises a new issue on appeal, questioning the constitutionality of 63 O.S. §§5051.1(A)(1); 5051.1(D)(1) and 5051.1(D)(2), citing as authority a recent opinion from the U.S. District Court for the Western District of Pennsylvania, Tristani v. Richman, 2009 WL 799747 (2009 W.D., Pa.). Constitutional issues must generally be raised in the trial court to be reviewable upon appeal. Due process claims, however, are an exception to this rule. Hoerman v. Western Heights Bd. of Educ., 1995 OK CIV APP 130, 913 P.2d 684, 689, cert. denied, (citation omitted); see also First Nat’l Bank of Alex v. Southland Prod. Co., 1941 OK 87, ¶67, 112 P.2d 1087, 1098-99 (permitting discretionary review of the constitutionality of a statute when the public interest and welfare require such consideration for the first time on appeal). Plaintiff does not assert a due process violation (and notably, the federal Pennsylvania authority cited by Plaintiff specifically holds the Medicaid recipients there failed to establish any procedural or substantive due process claims by the application of Pennsylvania statute authorizing the Pennsylvania Department of Public Welfare to impose liens and obtain recovery from the recipients’ settlement proceeds). Considering these authorities, we find Plaintiff’s failure to raise her constitutional issue (limited to the claim that the Oklahoma statute allegedly runs afoul of the Supremacy Clause) in the trial court is fatal to consideration of the issue for the first time on appeal.

2010 OK CIV APP 114 IN THE MATTER OF THE ESTATE OF LOLA LADENE WEBB, DECEASED. CHARLES L. WATKINS, LINDA K. WATKINS, and LAURIE LADENE Vol. 81 — No. 31 — 11/20/2010

COLEMAN, Petitioners/Appellees/CrossAppellants, vs. ROBIN JEANNE WEBB, Personal Representative of the Estate of Lola Ladene Webb, Respondent/Appellant/CrossAppellee.

No. 106,790. September 24, 2010 APPEAL FROM THE DISTRICT COURT OF NOBLE COUNTY, OKLAHOMA HONORABLE DAN ALLEN, JUDGE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED Bruce A. Spence, Tulsa, Oklahoma, for Appellant.

Kenneth L. Buettner, Presiding Judge: ¶1 Appellant Robin Jeanne Webb, Personal Representative of the Estate of Lola Ladene Webb, appeals from the trial court’s order denying her request for attorney fees. The trial court found that Appellee Charles L. Watkins’s Petition for Letters of Administration was not “totally without merit or frivolous” and therefore declined to award attorney fees to Appellant. This appeal proceeds on Appellant’s brief only. Appellant’s brief is reasonably supportive of her claim that the trial court erred in finding Appellee’s Petition was not totally without merit and frivolous. As a result, Appellant was entitled to an award of attorney fees under 12 O.S.2001 §2011. We reverse and remand for determination of the amount of attorney fees to be awarded Appellant. Appellee and two heirs filed a cross-appeal from the final distribution order. The Oklahoma Supreme Court dismissed Appellee for lack of standing, and the other parties failed to file a brief in support of the cross-appeal. The claims made in the crossappeal are therefore abandoned and we affirm the final distribution order. ¶2 Lola Ladene Webb (Decedent) died December 24, 2004. Appellee, a son-in-law of Decedent, pro se, filed a Petition for Letters of Administration, Appointment of Personal Representative, [and] Determination of Heirs on January 13, 2005.1 Appellant, a daughter of Decedent, filed her Objection to Petition for Letters of Administration, Objection to Appointment of Personal Representative and Motion to Dismiss February 4, 2005.2 Linda K. Watkins, the wife of Appellee and a daughter of Decedent, filed an Answer to Appellant’s Petition March 7, 2005.3 Another daughter, Laurie Ladene Coleman, filed a similar Answer the same day. Appellant filed responses asking the court

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to dismiss or strike Watkins’s and Coleman’s Answers. ¶3 Appellant filed her Petition to Admit Will to Probate, Appointment of Personal Representative, and for Determination of Identity of Heirs-at-Law, Devisees and Legatees April 1, 2005. Appellant sought to have Decedent’s June 6, 2003 will admitted to probate and to have herself named personal representative.

Appellee, Watkins, and Coleman filed an Objection to Appointment of Named Personal Representative April 21, 2005.4 ¶4 The record next shows Appellant sought a contempt citation against Appellee for refusing to appear for deposition. Appellant later filed a second motion to compel and application for contempt based on Appellee’s failure to respond to discovery requests. ¶5 Appellant sought summary judgment against Appellee for filing a fraudulent lien and foreclosure of such lien through probate proceedings.5 Appellee asserted he filed a notice of claim, not a lien, but he conceded that he had been paid $600 of the amount of his claim. Appellee contended Decedent’s estate still owed him the $219 balance of his claim.6 ¶6 Appellant filed a motion for status conference April 11, 2006. The trial court issued an order April 18, 2006 in which it “decline(d) to reconsider prior motions for summary judgment or to have further status conferences herein until receipt of said suggested pretrial order.” Appellant filed another motion for status conference August 6, 2007.

probate. Appellee denied he contested the validity of the will and asserted the proceedings in this case were necessary “for the court to frame the issues . . . .” ¶10 In her reply, Appellant alleged that after Appellee read Decedent’s will, he frivolously filed a pleading to administer the estate claiming Decedent died intestate. Appellant next noted that in response to the application for attorney fees, Appellee, Watkins, and Coleman contended they did not dispute the validity of Decedent’s will and Appellant quoted the portion of Watkins’s and Coleman’s Answers in which they averred the will and trust were invalid. Appellant further asserted that Appellee filed his Petition and his notice of claim against the estate for the improper and frivolous purposes of causing unnecessary delay and increasing costs, and that Appellee stated his intent to do this in front of witnesses at the time he received a copy of Decedent’s will. Appellant asserted that Appellee’s claims were not warranted by existing law and were frivolous arguments without legal support. Appellant argued that Appellee made false statements and contested the will for three years before conceding the will’s validity before trial and failing to appear for trial. Appellant urged the trial court to exercise its equitable authority to award attorney fees for bad faith litigation conduct.

Appellant supplemented her application with affidavits from two witnesses who stated that after Decedent’s funeral, they witnessed Appellee read Decedent’s will and heard him state his intent to be vexatious.8

¶8 Appellant filed her Application for Attorney Fees March 27, 2008. Appellant asserted she was entitled to an award of fees from Appellee under 58 O.S.2001 §66 and 12 O.S.2001 §928.

Appellant sought $36,285 in fees and $679.36 in costs; she attached billing records in support of her request.

¶11 Hearing on Appellant’s application for fees was held June 20, 2008. The Journal Entry of Judgment was filed January 9, 2009, in which the trial court found no statutory authority for awarding fees. The court also declined to award fees under its equitable authority, stating “the court can not find that it was totally without merit or frivolous for [Appellee] to have sought letters and objected to [Appellant] being personal representative; however, it appears that [Appellee] abandoned that in regard to whether or not [Appellant] should be the personal representative. That’s clear to the Court because with notice [Appellee] did not appear for that hearing.” The court awarded costs but denied Appellant’s request for fees.

¶9 Appellee responded that fees were not proper under §66, based on his assertion that section applies only to will contests made after

¶12 Appellant appeals from the January 9, 2009 Journal Entry of Judgment denying attorney fees. Appellee has failed to file a response

¶7 A hearing was held February 6, 2008, at which Appellant appeared with counsel, and counsel for Appellee appeared, but Appellee, Watkins, and Coleman failed to appear. The trial court filed the Order Admitting Will to Probate, Appointment of Personal Representative and Determining Heirs, Devisees and Legatees February 26, 2008.7

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brief and this matter therefore proceeds on Appellant’s brief only. In the case of an appeal proceeding on the appellant’s brief only, this court is under no duty to search the record for a basis to affirm the judgment, and where the appellant’s brief is “reasonably supportive of the allegations of error” this court will ordinarily grant the relief sought by the appellant.

Sneed v. Sneed, 1978 OK 138, 585 P.2d 1363. However, “(r)eversal is never automatic on appellee’s failure to file answer brief. . . . [Where the] record presented does not support the error alleged in appellant’s brief, the trial court’s judgment cannot be disturbed. It is presumed correct until the contrary has been shown by the record.” Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, 497 (citations omitted). ¶13 The trial court found no statutory basis for an award of attorney fees and denied Appellant’s request for attorney fees as a sanction. Appellant does not challenge the finding that the probate statutes do not support an award of attorney fees in this case; her claims on appeal all relate to the denial of fees as a sanction for improper filing and litigation conduct. We review the trial court’s decision on an application for sanctions for an abuse of discretion. State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 2, 61 P.3d 234. Proceedings for sanctions are equitable and accordingly, on appeal we will examine and weigh the proof in the record, but we must abide by the presumption that the trial court’s decision is legally correct and cannot be disturbed unless contrary to the weight of the evidence or to a governing principle of law. Id. at ¶3. ¶14 Although Appellant’s argument for sanctions relies on the trial court’s inherent authority to sanction bad faith litigation conduct, her contention that Appellee made false statements in his Petition and notice of claim against the estate falls under 12 O.S.2001 §2011.9 Sanctions may not be imposed under §2011 absent a factual determination that the sanctioned party acted improperly. Matter of the Estate of Ringwald, 1995 OK CIV APP 114, 905 P.2d 833. The Oklahoma Supreme Court has explained that under §2011 “(t)he appropriateness of sanctions depends on the pre-filing conduct by counsel who signed the critical document. That conduct must be tested by a standard of objective reasonableness under the then-existing circumstances. Sanctions are appropriate only for (a) frivolous filing or for (b) filing made with an improper purpose in mind.” HamVol. 81 — No. 31 — 11/20/2010

monds v. Osteopathic Hosp. Founders Ass’n, 1996 OK, 934 P.2d 319, 323. The court explained that a filing is frivolous if the signer could not form a reasonable belief that it was well-founded in fact. Id. at n. 16. The trial court’s inherent authority to award attorney fees as a sanction for litigation misconduct is directed only at post-filing conduct. Barnes v. Oklahoma Farm Bureau Mut. Ins. Co., 2004 OK 25, ¶¶13-16, 94 P.3d 25. ¶15 The weight of the evidence, as outlined above, supports Appellant’s claim that Appellee acted improperly and in bad faith in filing his Petition and notice of claim, both containing false statements, which caused the litigation to continue three years. The weight of the evidence shows that Appellee knew of the existence of the will and knew that he had been paid by Decedent years earlier. Nevertheless, he filed a notice of claim against the estate and a petition, both including false statements.

Because of Appellee’s knowledge of the falsity of his statements in filed pleadings, we objectively find no other reason for Appellee’s actions but to harass and cause delay. The weight of the evidence also shows Appellee announced his intent to harass three weeks before he made false statements in filings.

Appellee’s intent to be vexatious is further illustrated by his filing of a cross-appeal in which he had no standing and which was abandoned after filing. Appellee offered no explanation for his false statements in his Petition and notice of claim against the estate. The weight of the evidence shows that Appellee violated §2011 and §2011.1 as a matter of law, and those sections direct that, upon a violation, the court shall impose a sanction. Appellant’s brief is reasonably supportive of her claim that the trial court abused its discretion in finding that Appellee’s claims were not totally without merit and in refusing to sanction Appellee’s conduct. Neither the Appellee nor the trial court have articulated any argument that Appellee’s conduct had a reasonable, nonfrivolous basis. We find the trial court abused its discretion in approving Appellee’s conduct in this case. We therefore REVERSE the January 9, 2009 Journal Entry of Judgment and REMAND for determination of the proper award of attorney fees incurred at trial and on appeal.10 ¶16 Appellee, Watkins, and Coleman filed a cross-appeal March 30, 2009, in which they sought to appeal the trial court’s February 25,

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2009 Final Order Allowing Final Account; Determining Heirship; Final Decree of Distribution and Discharge. Appellant filed a motion to dismiss the cross-appeal and to dismiss Appellee as a party appellant based on lack of standing. The Oklahoma Supreme Court issued its Order May 26, 2009, in which it denied Appellant’s motion to dismiss the cross-appeal, but granted Appellant’s motion to dismiss Appellee as a party appellant in the crossappeal. The Order noted that Appellee is a non-heir stranger to the appeal and therefore could not challenge the final accounting or decree of distribution. The Order directed that Appellee remained a party to Appellant’s appeal of the attorney fee decision. Watkins and Coleman failed to file a brief in support of the cross-appeal. The claims made in the crossappeal are deemed abandoned and we therefore AFFIRM the February 25, 2009 Final Order.

HANSEN, J., concurs in result, and HETHERINGTON, J., concurs.

1. Appellee asserted he had not found a will for Decedent. He alleged that he was a creditor of Decedent’s estate and therefore entitled to letters of administration pursuant to 58 O.S.2001 §122. Appellant filed a notice of claim against the estate the same day.

2. Appellant alleged Appellee made fraudulent statements in his Petition and failed to provide proof of a debt against Decedent’s estate.

Specifically, Appellant alleged that she and two other witnesses observed Appellee read Decedent’s will December 27, 2004. Appellant attached Decedent’s June 6, 2003 will and trust, as well as affidavits of herself and two others stating they observed Appellee read Decedent’s will December 27, 2004. Appellant asked the court to dismiss Appellee’s Petition, award Appellant attorney fees and costs, and find Appellee in contempt for making false statements in his Petition.

3. Watkins objected to Appellant being named Administrator and asked that Coleman be named Administrator. Watkins further contended that Decedent’s will failed to make a proper distribution of Decedent’s estate and that the court should therefore find that Decedent died intestate.

4. They claimed Appellant had a conflict of interest because she was the successor trustee of Decedent’s trust and because she had named herself trustee of a newly created trust “in order to take possession of all assets of (Decedent’s trust).” They also alleged Appellant had failed to cooperate in establishing the estate and had failed to timely file a petition for probate.

5. To her motion, Appellant attached the notice of claim of $819, which Appellee had filed against Decedent’s estate in January 2005; the transcript of Appellee’s deposition testimony that he loaned $600 to Decedent to pay for labor used to prepare Decedent’s house for sale and that he was to be paid back after Decedent’s house sold; the warranty deed showing Decedent sold her home December 6, 2000; and a $600 canceled check from Decedent to Appellee dated December 14, 2000.

6. The record includes an order in which the trial court found there was no dispute of fact that Appellee claimed he had an oral agreement with Decedent to loan her money and Decedent paid the alleged loan by a check on December 14, 2000. (Attached as Exhibit 6 to Appellant’s Objection to (Appellee’s) Pretrial Order).

Appellee did not explain the basis for the claimed $219 debt remaining. Appellee further responded that Decedent’s will failed because it bequeathed all of Decedent’s property to her trust, which in turn provided for all trust assets to be distributed, after Decedent’s death, to Appellant’s trust, which was not in existence at the time Decedent’s will and trust were executed.

7. In it, the court found that Appellee, Watkins, and Coleman failed to appear and therefore waived their objections and claims. The court found that the will disposed of all of Decedent’s estate and admitted it

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to probate. The court also appointed Appellant Personal Representative. The court found the heirs were Decedent’s trust and her five children, that the will made Decedent’s trust the sole devisee and legatee, and that Decedent intentionally made no provision for her children. The trial court denied Appellee’s claims.

8. The affidavits of Johnnie Delbert Marshall and Karen Luanne Beasley both state that they were present at Decedent’s apartment on December 27, 2004, after the funeral, when Appellee stated to Marshall “My wife [Watkins] is soft-spoken but I’m not. I’m here to protect her interests and you all are getting ready to find out what a horse’s ass I can be.” In their affidavits Marshall and Beasley further stated they saw Appellant hand Appellee a copy of Decedent’s will, and saw Appellee read the will and comment on it.

9. That section, and the one following provide, in part: §2011 *** B. REPRESENTATIONS TO COURT. By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: 1. It is not being presented for any improper or frivolous purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; 2. The claims, defenses and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; 3. The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and 4. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

C. SANCTIONS. If, after notice and a reasonable opportunity to respond, the court determines that subsection B of this section has been violated, the court shall, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subsection B of this section or are responsible for the violation.

(Emphasis added.) § 2011.1 In any action not arising out of contract, if requested the court shall, upon ruling on a motion to dismiss an action or a motion for summary judgment or subsequent to adjudication on the merits, determine whether a claim or defense asserted in the action by a nonprevailing party was frivolous. As used in this section, “frivolous” means the claim or defense was knowingly asserted in bad faith or without any rational argument based in law or facts to support the position of the litigant or to change existing law. Upon so finding, the court shall enter an order requiring such nonprevailing party to reimburse the prevailing party for reasonable costs, including attorney fees, incurred with respect to this title. (Emphasis added.)

10. Appellant filed an Application for Appeal-Related Attorney Fees May 3, 2010. Appellee filed his Response September 17, 2010.

Appeal-related attorney fees may be granted where there is statutory authority for such an award in the trial court. Crutchfield v. Marine Power Engine Co., 2009 OK 27, ¶32, 209 P.3d 295. For the reasons outlined above, we find Appellant is entitled to an award of appealrelated fees. On remand, the trial court is directed to determine the amount of attorney fees incurred on appeal and to enter an award therefor.

2010 OK CIV APP 115 NOEL OSBORN, by and through his Legal Guardians, RICK OSBORN and TERRY OSBORN, Plaintiffs/Appellees, vs.

BROOKDALE SENIOR LIVING, INC.; BROOKDALE SENIOR LIVING, INC., d/b/a ALTERRA STERLING HOUSE OF

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EDMOND; and BILL GODWIN, Defendants/Appellants.

Case No. 107,070. July 12, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE CAROLYN R. RICKS, TRIAL JUDGE AFFIRMED John Wiggins, Emily D. Nash, WIGGINS SEWELL & OGLETREE, Oklahoma City, Oklahoma and Jeff D. Marr, MARR LAW FIRM, Oklahoma City, Oklahoma, for Plaintiffs/ Appellees John J. Bowling, Thomas A. Le Blanc, Matthew B. Free, BEST & SHARP, Tulsa, Oklahoma, for Defendants/Appellants JOHN F. FISCHER, JUDGE: ¶1 The district court defendants, Brookdale Senior Living, Inc., and Brookdale Senior Living, Inc., d/b/a Alterra Sterling House of Edmond (collectively, Alterra) appeal the district court’s Order Denying Motion To Compel Arbitration pursuant to 12 O.S. Supp. 2009 § 1879(A)(1). We find that the plaintiff’s action is not subject to arbitration, and, therefore, affirm the order of the district court.

BACKGROUND ¶2 Alterra operates an assisted living center.

On September 27, 2006, Rick Osborn, as guardian for Noel Osborn, executed Alterra’s Residency Agreement securing care and treatment for his ward in Alterra’s facility. The Residency Agreement provided for compulsory arbitration of all claims concerning Osborn’s care.

Noel Osborn resided in Alterra’s facility from November 2006 until April 2008. Through his guardians, Osborn filed this suit alleging that Alterra was negligent in providing care and that he suffered injuries as a result of that negligence. ¶3 Alterra moved to compel arbitration pursuant to the Residency Agreement. Alterra argued that it was engaged in interstate commerce because it purchased supplies from outof-state vendors and accepted residents from states other than Oklahoma. Alterra concluded that its Residency Agreement was, therefore, subject to the Federal Arbitration Act (FAA), and the arbitration provision was enforceable.

Alterra also sought to avoid the statutory proVol. 81 — No. 31 — 11/20/2010

hibition on arbitration provisions in the Oklahoma Nursing Home Care Act by arguing that it was an assisted living center, not a nursing home or nursing facility. Alterra appeals from the district court’s order denying its motion to compel arbitration.

STANDARD OF REVIEW ¶4 The de novo standard of review applies to the review of an order granting or denying a motion to compel arbitration. Thompson v. Bar-S Foods Co., 2007 OK 75, ¶ 9, 174 P.3d 567, 572.

ANALYSIS ¶5 The Residential Care Act is codified in Article 8 of Title 63 at sections 1-819 to 1-840.

The Residential Care Act governs, among other things, the licensure of “homes.” A “home” is defined as a Residential Care Home. 63 O.S. Supp. 2003 § 1-820(11). A Residential Care Home is: any establishment or institution which offers, provides or supports residential accommodations, food service, and supportive assistance to any of its residents or houses any residents requiring supportive assistance who are not related to the owner or administrator of the home by blood or marriage.

63 O.S. Supp. 2003 § 1-820(12)(a).1 ¶6 Residential care homes are required to comply with certain provisions of the Oklahoma Nursing Home Care Act, 63 O.S.2001 and Supp. 2006 §§ 1-1900.1 to 1-1943.1, and 11950 to 1-1951. Section 1-1939 of that Act prohibits a covered entity from requiring the arbitration of certain disputes between the facility and its residents: “Any waiver by a resident or the legal representative of the resident of the right to commence an action under this section, whether oral or in writing, shall be null and void, and without legal force or effect.” 63 O.S. Supp. 2003 § 1939(D). “Any party to an action brought under this section shall be entitled to a trial by jury and any waiver of the right to a trial by a jury, whether oral or in writing, prior to the commencement of an action, shall be null and void, and without legal force or effect.” 63 O.S. Supp. 2003 § 1939(E). See also Bruner v. Timberlane Manor Ltd. P’ship, 2006 OK 90, ¶¶ 46-47, 155 P.3d 16, 32 (finding that the FAA does not pre-empt the Oklahoma Nursing Home Care Act and that the district court did not err when it applied § 1-1939(D) and (E) to

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an arbitration agreement contained in a nursing home’s admission contract and rendered it unenforceable). ¶7 Alterra argues that because it operates an assisted living center rather than a nursing home, its arbitration agreement is not prohibited. Alterra’s argument is not supported by traditional principles of statutory construction.

The Continuum of Care and Assisted Living Act, 63 O.S.2001 §§ 1-890.1 to 1-894, specifically applicable to the facility operated by Alterra, is included within Article 8 of Title 63, the same Title within which the prohibition on arbitration provisions is located. Section 1-890.2(1) of the Continuum of Care Act defines an assisted living center as follows: “Assisted living center” means any home or establishment offering, coordinating or providing services to two or more persons who: a. are domiciled therein, b. are unrelated to the operator, c. by choice or functional impairments, need assistance with personal care or nursing supervision, d. may need intermittent or unscheduled nursing care, e. may need medication assistance, and f. may need assistance with transfer and/ or ambulation.

63 O.S.2001 § 1-890.2 (emphasis added). The Continuum of Care Act does not separately define “home.” The only definition of “home” in Article 8 is found at 63 O.S. Supp. 2003 § 1820(11), which defines “home” as a residential care home. ¶8 Further, the services provided by an assisted living center are the same as the services provided by a residential care home. A residential care home is: any establishment or institution which offers, provides or supports residential accommodations, food service, and supportive assistance to any of its residents or houses any residents requiring supportive assistance who are not related to the owner or administrator of the home by blood or marriage.

63 O.S. Supp. 2003 § 1-820(12)(a). The “supportive assistance” provided by an assisted living center is: 2682

the service rendered to any person which is sufficient to enable the person to meet an adequate level of daily living. Supportive assistance includes, but is not limited to, housekeeping, assistance in the preparation of meals, assistance in the safe storage, distribution and administration of medications, and assistance in personal care as necessary for the health and comfort of such person.

63 O.S. Supp. 2003 § 1-820(21). Finally, it is clear that the Legislature considered an assisted living center to be a residential care home. See 63 O.S.2001 § 1-890.6(A)2 of the Continuum of Care Act, excluding from the coverage of that Act certain, but not all, residential care homes. ¶9 Nonetheless, as Alterra argues, the Nursing Home Care Act provides: The Nursing Home Care Act shall not apply to any facility operated by the Oklahoma Department of Veterans Affairs under control of the Oklahoma War Veterans Commission residential care homes, assisted living facilities or adult companion homes which are operated in conjunction with a nursing facility, or to hotels, motels, boarding houses, rooming houses, or other places that furnish board or room to their residents.

63 O.S. Supp. 2003 § 1-1903(B) (emphasis added). Alterra concludes that this provision excludes assisted living centers from any provision of the Nursing Home Care Act, specifically the provisions of section 1-1939 banning arbitration agreements.3 Despite the language of section 1-1903(B), Alterra recognizes that a continuum of care facility is subject to certain provisions of the Nursing Home Care Act: “If a continuum of care facility’s failure to comply with the Continuum of Care and Assisted Living Act or rules involves nursing care services, the Commissioner shall have authority to exercise additional remedies provided under the Nursing Home Care Act.” 63 O.S.2001 § 1890.6(D). Alterra seeks to avoid application of the Nursing Home Care Act by attempting to distinguish an assisted living center from a continuum of care facility. We find that distinction, to the extent it exists, insufficient to avoid 63 O.S.2001 § 1-840: “Residential care homes subject to the provisions of the Residential Care Act shall comply with the provisions of Sections . . . 1-1939 . . . of this title.” As previously discussed, an assisted living center is a

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residential care home. Therefore, because the Legislature, in section 1-840, specifically subjected assisted living centers to the prohibition against arbitration agreements in section 11939, it was unnecessary for the Legislature to add a redundant provision in the Continuum of Care and Assisted Living Act, accomplishing what had already been done.

CONCLUSION ¶10 Although the facility operated by Alterra in this case is an assisted living center, it is, nonetheless, a residential care home. Alterra’s facility is, therefore, subject to the provisions of section 1-1939 of the Nursing Home Care Act. Consequently, the analysis in Bruner controls, and the arbitration provision in the Osborn/ Alterra Residency Agreement is unenforceable.

Because the arbitration agreement is unenforceable, it is unnecessary to discuss the remainder of the issues raised by the parties in this appeal. The district court’s Order Denying Motion to Compel Arbitration is affirmed. ¶11 AFFIRMED. GABBARD, P.J., concurs, and RAPP, J., dissents.

1. The exclusions from this definition do not include the facility operated by Alterra and, therefore, are not relevant.

2. “The Continuum of Care and Assisted Living Act shall not apply to residential care homes, adult companion homes, domiciliary care units operated by the Department of Veterans Affairs, the private residences of persons with developmental disabilities receiving services provided by the Developmental Disabilities Services Division of the Department of Human Services or through the Home and Community-Based Waiver or the Alternative Disposition Plan Waiver of the Oklahoma Health Care Authority, or to hotels, motels, boardinghouses, rooming houses, or other places that furnish board or room to their residents. The Continuum of Care and Assisted Living Act shall not apply to facilities not charging or receiving periodic compensation for services rendered and not receiving any county state or federal assistance.” 63 O.S.2001 § 1-890.6(A).

3. Alterra’s construction ignores applicable grammatical rules. The emphasized “or” refers to both assisted living facilities and adult companion homes because it is not preceded by a comma signifying an independent clause. Further, the “which” is a restrictive pronoun that refers to both antecedents (assisted living facilities, adult companion homes), joined by the coordinate conjunction “or.”

RAPP, J., dissenting ¶1 I dissent. The trial court defendants, Brookdale Senior Living, Inc. and Brookdale Senior Living, Inc. d.b.a. Alterra Sterling House of Edmond (Alterra) appeal an Order Denying Motion To Compel Arbitration, where the trial court declined to require arbitration of the claim of the plaintiffs, Noel Osborn (Osborn) by and through his legal guardians, Rick Osborn and Terry Osborn (Guardians). ¶2 Alterra is an assisted living center.1 Osborn resided there from November 2006 until April 2008. Guardians filed a suit alleging that AlterVol. 81 — No. 31 — 11/20/2010

ra was negligent in providing care and that Osborn suffered injuries as a result of the negligence. ¶3 On September 27, 2006, Rick Osborn executed the Alterra Residency Agreement (Agreement) on behalf of Osborn and as a Responsible Party. The Agreement specified the basic services to be provided which included living accommodations, meals and staffing. Health care and medical care services were excluded. ¶4 Article V of the Agreement has three parts, two of which are in issue in this appeal.

The first is Article V(A) Arbitration Provision.

There, the Agreement provided for compulsory binding arbitration of all claims and set out extensive provisions relating to the arbitration procedure. ¶5 The second is Article V(B) Limitation of Liability Provision and subpart Article V(B)(2), exclusive of Article V(B)(2)(c), which is not in issue in this appeal. This Article offsets damages by collateral source recovery and pain and suffering is limited to a specific dollar amount.

Punitive damages are barred. ¶6 Alterra moved to compel arbitration as provided in the Agreement. Alterra submitted an affidavit and a copy of the Agreement in support of its motion. The affiant stated that Alterra is an Assisted Living Facility and not a nursing home or nursing facility. ¶7 Osborn resisted the motion on the grounds that: (a) The Oklahoma Nursing Home Care Act applies and bans arbitration clauses; (b) Neither the State or Federal arbitration statutes apply to the arbitration clause because the clause is invalid; (c) The Agreement violates the Oklahoma Constitution and statutes that insure access to courts; and (d) The Agreement is oppressive and unconscionable and thus not enforceable.2 ¶8 Osborn does not dispute that Alterra is a licensed assisted living center.3 There is no indication in the record that Alterra is licensed as a nursing home facility. ¶9 The question is then whether the arbitration provision of the Agreement is banned by 63 O.S. Supp. 2008, § 1-1939(D) and (E).4 The NHCA bans arbitration provisions in nursing home agreements. 63 O.S. Supp. 2008, § 11939(D) and (E); Bruner v. Timberlane Manor Ltd. P’ship, 2006 OK 90, ¶ 47, 155 P.3d 16, 32 (Oklahoma’s Nursing Home Care Act governs over

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Oklahoma’s Uniform Arbitration Act in this case). There is no similar provision in OCCAL, which governs Assisted Living Centers. ¶10 Thus, Osborn argues, and the Majority necessarily agrees, “that 63 O.S. § 1-1939(D) of the Nursing Home Care Act applies to Assisted Living Centers through Article 8 of Title 63, entitled ‘Residential Care Act,’ because assisted living centers fall under the definition of ‘residential care home’ provided in the Residential Care Act.”5 This argument fails because the legislature made provisions for care which addressed different needs and established different types of facilities to provide for those care needs. Assisted Living Centers are one type of facility and they are covered under a separate statutory Article of the Public Health Code. The legislature did not incorporate the ban on arbitration contained in the NHCA into the provisions for Assisted Living Centers. ¶11 Title 63 of the Oklahoma statutes contains the Public Health and Safety Code. The Code contains a wide-ranging set of statutes within Chapters and Articles. Chapter 1 is the Public Health Code. Chapter 1 contains twenty Articles, which are further divided by category of facilities. In this appeal, the issues concern analysis of some of the Articles and their subdivisions in Chapter 1 of Title 63. This analysis demonstrates that Assisted Living Centers are distinct types of facilities and governed by a particular subsection of Article 8 of Chapter 1 and do not ban arbitration clauses. ¶12 Chapter 1 includes Article 8 and covers a number of facilities, including assisted living (Alterra), residential care, and other specialized care needs and includes Assisted Living Centers. The NHCA is separately codified in Article 19, the Nursing Home Care Act. ¶13 Article 8 of Title 63 is entitled “Nursing Homes, Rest Homes and Specialized Homes.”

Statutory divisions of Article 8 pertain to Residential Care, Long-term Care, Hospice Care, Adult Day Care, and what is termed “Continuum of Care and Assisted Living.” Other specialized needs for care are addressed also. ¶14 The current version of Article 19, the NHCA, began with its enactment in 1980. 1980 Okla. Sess. Laws, c. 241. Section 1-1903(B) then provided that the NHCA did not apply to room and board homes, subsequently changed to residential care homes in the legislation dealing with Residential Care Facilities. 1987 Okla. Sess. Laws, c. 98, § 23. That provision was 2684

subsequently eliminated. The tenor of the NHCA shows that it is legislation relating to the care of persons requiring skilled medical care. ¶15 The Residential Care Act (RCA), Sections 1-819 and following, began as the “Room And Board Act,” 1984 Okla. Sess. Laws, c. 128, and was amended in 1987 to give the Act its present name. The intent of the Act is to provide care and services to persons who remain essentially capable of managing their own affairs and are ambulatory. 63 O.S. Supp. 2008, § 1-820(12)(a). ¶16 Residential care licensees are required to comply with specific parts of the NHCA. 63 O.S.2001, § 1-840. Those parts are: Sections 11909 and 1-1910 (records display and inspection); 1-1914.1 and 1-1914.2 (administrative oversight remedies); 1-1915 (repealed); 1-1918 (patient rights and violations); 1-1919 (authorized access to premises); 1-1920 (protection of patient funds); 1-1921(requirement to enter a written agreement); 1-1922 (residents advisory council); 1-1924 (disclosure of information); 11926 and 1-1927 (provisions for involuntary transfers); 1-1930 (facility closing); 1-1939 (liability, including ban on arbitration); 1-1940 (remedies for violations); and 1-1941(ombudsman). As noted above, originally the NHCA specifically provided that it did not apply to the RCA, but such a general exclusion was eliminated and portions of the NHCA were made applicable. ¶17 Thus, a residential care facility agreement, like a nursing home agreement, cannot preclude access to courts or trial by jury. Nevertheless, a nursing home and a residential care facility are different from each other. While construing the provisions of an insurance contract, the Court, in Gillogly v. General Elec. Capital Assurance Co., 430 F.3d 1284 (10th Cir. 2005), determined that under Oklahoma law, a licensed residential care home was not a nursing home. This follows from the statute’s definition of “facility” set out in the NHCA to exclude a residential care home. 63 O.S. Supp.

2008, § 1-1902(9) and (10); Gillogly, 430 F.3d at 1290-91.6 ¶18 However, under the record before this Court, Alterra comes under a third classification called assisted living. This classification is the subject of the Continuum of Care And Assisted Living Act codified in Sections 1-890.1 – 1.894 of Title 63.

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¶19 The OCCAL recognizes and regulates two types of facilities. They are: Assisted Living Center and Continuum of Care Facility. 63 O.S. Supp. 2008, § 1-890.2.7 The Continuum of Care Facility clearly is one of a higher level of care and includes a component of nursing facility services. 63 O.S. Supp. 2008, § 1-890.2(4). ¶20 The OCCAL does not apply to residential care homes. 63 O.S.2001, § 1-890.6(A). As a result, the 63 O.S.2001, § 1-840, connection between a residential care facility and a nursing facility does not exist for an OCCAL facility.8 Therefore, the Majority’s premise grounded on the definition in Section 1-820(12) fails because OCCAL (and its Assisted Living component) does not apply to residential care homes. ¶21 The definition of a continuum care facility in Section 1-890.2(4), uses the phrase “providing nursing facility services as defined in Section 1-1902 of this title.” (Emphasis added.)

The definition of a nursing facility set out in NHCA excludes the “nursing care component of a continuum of care facility.” 63 O.S. Supp.

2008, § 1-1902(10). These are not inconsistent.

The continuum care facility is one with a higher level of care than the assisted living facility and has a “component” of nursing care services which by definition are the type of services provided in a nursing facility subject to NHCA. However, the use of the same definition in OCCAL for a level of service does not mean that the contract provisions of NHCA, effectively barring arbitration, are incorporated into OCCAL. Statutory provision for services is distinct from statutory provision for what may be in the contract for those services that concerns tort remedies and forums. The legislature could, but did not, include a provision like 63 O.S.2001, § 1-840, making assisted living care licensees subject to Section 1-1939(D) and (E). ¶22 Therefore, the trial court’s denial of the motion to compel arbitration on the ground that the arbitration provision in Alterra’s Agreement was barred by incorporation is error.

SUMMARY AND CONCLUSION ¶23 The Supreme Court has rejected Osborn’s arguments that arbitration violates his constitutional and statutory rights. The Arbitration Provisions in Article V(A) of the parties’ Agreement are not substantively unconscionable. Osborn has not demonstrated through evidence that Article V(A) is procedurally unconscionable.

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¶24 I would hold that a portion of the Limitation of Liability Provisions in Article V(B) is unconscionable. Specifically, I would hold that Article V(B)(2)(a) and (b) are invalid and unenforceable. Article V(A)(13) and Article V(B)(1) are likewise invalid to the extent that these provisions incorporate Article V(B)(2)(a) and (b). Article V(B)(2)(c) is outside the scope of this appeal. I would further hold that the remaining provisions of Article V are valid and enforceable. The contract is severable and the removal of the unenforceable provisions does not require that the Agreement be voided completely. ¶25 The bar to arbitration contained in 63 O.S. Supp. 2008, § 1939(D) and (E) is not incorporated into the Oklahoma Continuum of Care and Assisted Living Act. This Act governs Alterra and its agreements. ¶26 Therefore, the trial court erred in denying the Motion to Compel Arbitration. The judgment of the trial court should be reversed and the cause remanded for further proceedings.

1. The parties do not dispute that Alterra is an assisted living facility. An assisted living facility is defined by the Oklahoma Continuum of Care and Assisted Living Act (OCCAL) and regulated by Chapter 663 of the Oklahoma Administrative Code. Amendments to OCCAL taking effect November 1, 2009, are not applicable.

As used in OCCAL, an “Assisted living center” is defined as follows: 1. “Assisted living center” means any home or establishment offering, coordinating or providing services to two or more persons who:

a. are domiciled therein,

b. are unrelated to the operator, c. by choice or functional impairments, need assistance with personal care or nursing supervision, d. may need intermittent or unscheduled nursing care,

e. may need medication assistance, and

f. may need assistance with transfer and/or ambulation 63 O.S. Supp. 2008, § 1-890.2(1).

In addition, the statutes define “Continuum of care facility,” under OCCAL. 4. “Continuum of care facility” means a home, establishment or institution providing nursing facility services as defined in Section 1-1902 of this title and one or both of the following:

a. assisted living center services as defined in the Continuum of Care and Assisted Living Act, and

b. adult day care center services as defined in Section 1-872 of this title.

63 O.S. Supp. 2008, § 1-890.2(4).

The statute defines “Facility” and “Nursing facility” under the Oklahoma Nursing Home Care Act (NHCA).

9. “Facility” means a nursing facility and a specialized home; provided this term shall not include a residential care home or an adult companion home; 10. “Nursing facility” means a home, an establishment or an institution, a distinct part of which is primarily engaged in providing: a. skilled nursing care and related services for residents who require medical or nursing care, b. rehabilitation services for the rehabilitation of injured, disabled, or sick persons, or c. on a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services beyond the level of care provided by a residential care home and which can be made available to them only through a nursing facility.

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“Nursing facility” does not mean, for purposes of Section 1-851.1 of this title, a facility constructed or operated by an entity described in paragraph 7 of subsection B of Section 6201 of Title 74 of the Oklahoma Statutes or the nursing care component of a continuum of care facility, as such term is defined under the Continuum of Care and Assisted Living Act, to the extent that the facility constructed or operated by an entity described in paragraph 7 of subsection B of Section 6201 of Title 74 of the Oklahoma Statutes contains such a nursing care component.

63 O.S. Supp. 2008, § 1-1902(9) and (10).

2. A consequence of my dissent is the necessity to address these additional issues, which the Majority did not do in light of its disposition of the arbitration motion. I would find pre-dispute arbitration clauses do not violate the right to a jury trial or the access to courts provisions of the Oklahoma Constitution. Rollings v. Thermodyne Industries, Inc., 1996 OK 6, ¶ 29, 910 P.2d 1030, 1036 (access to courts); City of Bethany v. Public Employees Relations Bd. of State of Oklahoma, 1995 OK 99, ¶ 34, 904 P.2d 604, 615 (jury trial).

The validity of the Agreement’s arbitration and liability limitation provisions depends upon whether those provisions are unconscionable and thus unenforceable. Unconscionabliity has been classified as “substantative” and “procedural.”

I would hold that the “Limitation of Liability Provision” of Article V(B)(2) is substantively unconscionable and unenforceable as being in violation of 23 O.S.2001, § 61. Article V(B)(2)(a), providing for collateral source offsets, is likewise invalid. I would find that Article V(B)(2)(b) barring punitive damages is valid. Article V(A)(13) and Article V(B)(1) are likewise invalid to the extent that these provisions incorporate Article V(B)(2)(a) and (b). These invalid provisions are severed from the Agreement pursuant to the Agreement’s severability clause.

3. Osborn appears to accept the characterization of Alterra as an Assisted Living Facility. The petition alleges that Alterra “had a responsibility to provide assisted living services.” The part of his position that argues for application of an arbitration ban in the Nursing Home Care Act to Assisted Living Facilities necessarily assumes that Alterra is an Assisted Living Facility.

4. Section 1-1939(D) and (E) read: D. Any waiver by a resident or the legal representative of the resident of the right to commence an action under this section, whether oral or in writing, shall be null and void, and without legal force or effect.

E. Any party to an action brought under this section shall be entitled to a trial by jury and any waiver of the right to a trial by a jury, whether oral or in writing, prior to the commencement of an action, shall be null and void, and without legal force or effect.

5. The definitions in the Oklahoma Residential Care Act, 63 O.S. Supp. 2008, § 1-820(12) (unchanged to date), provide, in part: 12. “Residential care home”: a. means any establishment or institution which offers, provides or supports residential accommodations, food service, and supportive assistance to any of its residents or houses any residents requiring supportive assistance who are not related to the owner or administrator of the home by blood or marriage.

6. See n.1.

7. w n.1. The original version of Section 1-890.2, enacted in 1997, was not changed in relevant provisions by the amendment to Section 1-890.2, effective November 1, 2007. 2007 Okla. Sess. Laws, c. 347 § 1.

The amendment effective in November 2009 also does not affect the pertinent provisions of the statute.

8. A continuum of care facility in violation of the law may be subject to the remedies under the NHCA. 63 O.S.2001, § 1-890.6(D). No similar provision exists for Assisted Living Facilities.

2010 OK CIV APP 123 FOSSIL CREEK ENERGY CORPORATION, Plaintiff/Interested Party, vs. COOK’S OILFIELD SERVICES, Defendant/ThirdParty Plaintiff/Appellant, vs. ADMIRAL 2686

INSURANCE COMPANY, Third-Party Defendant/Appellee.

Case No. 106,895. May 7, 2010 APPEAL FROM THE DISTRICT COURT OF CIMARRON COUNTY, OKLAHOMA HONORABLE GREG A. ZIGLER, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Carla R. Stinnett, Gregory J. Denney, Sheri L. Eastham, Simon J. Harwood, GREGORY J. DENNEY & ASSOCIATES, P.C., Sapulpa, Oklahoma, for Defendant/Third-PartyPlaintiff/ Appellant George W. Dahnke, ABOWITZ, TIMBERLAKE & DAHNKE, P.C., Oklahoma City, Oklahoma, for Third-Party Defendant/ Appellee DEBORAH B. BARNES, JUDGE: ¶1 Cook’s Oilfield Services (Cook’s), brings this accelerated appeal1 of the trial court’s summary judgment filed on February 12, 2009, in favor of Admiral Insurance Company (Admiral). Based on our review of the record on appeal and applicable law, we reverse the order of the trial court granting summary judgment because there are controverted issues of material fact. We remand this case for further proceedings in a manner consistent with this Opinion.

FACTS AND PROCEDURAL BACKGROUND ¶2 The following facts are stipulated by the parties and are not in dispute. Cook’s installed a drilling-fluid mud-pit liner or “apron” (the liner) at the site of an oil well (the well site) operated by Fossil Creek Energy Corporation (Fossil).2 The well site is located in Cimarron County, Oklahoma. ¶3 Cook’s office is located in Perryton, Texas.

Cook’s is a sole proprietorship owned by Charles D. Cook, Sr. Western Surplus Lines Agency issued a commercial lines policy (the Policy) on behalf of Admiral to Charles D. Cook, Sr. The Policy was effective from November 18, 2005, to November 18, 2006. ¶4 On July 28, 2006, the Oklahoma Corporation Commission (the OCC) investigated the well site and found, as stated in its Incident and Complaint Investigation Report, that the liner had not been installed correctly, that sides

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of the liner were down in the pit, and fluids were “contaminating the vertical walls and bottom.”3 On August 1, 2006, the OCC issued a report and recommendation to Fossil to dispose of the drilling fluids, remove the liner, and perform remedial work. ¶5 On January 30, 2007, Fossil notified Cook’s that it was seeking to hold Cook’s responsible for the cost incurred by Fossil in remediating the seepage of drilling fluids from the mud pit.

This was the first notice to Cook’s of the liner problem and of the leakage from the mud pit.

Cook’s notified Admiral of Fossil’s claim on or about February 7, 2007. On February 12, 2007, and again on June 15, 2007, Admiral notified Cook’s that there was no coverage under the Policy. ¶6 Fossil filed a petition against Cook’s on July 2, 2007, alleging Cook’s was negligent, breached its contract with Fossil, and caused Fossil to incur remediation and cleanup expenses. After filing an answer to Fossil’s petition, Cook’s filed a third-party petition against Admiral, alleging Admiral had breached its contract (i.e., the Policy) with Cook’s and acted in bad faith in denying coverage to Cook’s. In its answer to Cook’s third-party petition, Admiral denied that the Policy affords coverage for the claim made by Fossil against Cook’s. ¶7 Admiral filed a motion for summary judgment, and Cook’s responded. The trial court heard oral argument and took the matter under advisement, pending submission of a reply brief by Admiral. Admiral subsequently filed a reply brief. ¶8 In a Journal Entry of Judgment filed on February 12, 2009, the trial court granted Admiral’s motion for summary judgment. The trial court found, in pertinent part, that (1) the question of coverage under the Policy is governed

by Texas law, (2) the claims asserted by Fossil against Cook’s fall within the scope of the absolute pollution exclusion added by endorsement to the Policy and, therefore, Admiral has no obligation under Part I of the Policy to indemnify Cook’s for any loss resulting from those claims, (3) the Policy contains a separate endorsement entitled “Limited Sudden and Accidental Pollution Liability-Property Damage Liability and Cleanup Expenses Extension,” but this does not obligate Admiral to indemnify Cook’s against Fossil’s claims because there is no evidence that the discharge of pollutants was sudden and accidental, or, Vol. 81 — No. 31 — 11/20/2010

alternatively, the undisputed facts show that Cook’s cannot satisfy Condition c. because the occurrence did not become known to Cook’s until more than thirty days after its commencement and it was not reported to Admiral within ninety days, (4) Admiral was not obligated to provide a defense to Cook’s in this action because there was no potential coverage under the Policy for any of the claims asserted

by Fossil against Cook’s, (5) Admiral has not violated its duty of good faith and fair dealing because Admiral owed no duty to defend Cook’s and has no duty to indemnify Cook’s against any loss in this action, and (6) pursuant to the undisputed material facts and applicable law, Admiral is entitled to summary judgment.

From this order of the trial court, Cook’s appeals.

STANDARD OF REVIEW ¶9 As recently stated by the Oklahoma Supreme Court: Under Rule 13(a) of the Rules of District Courts, 12 O.S.2001, ch. 2, app. (Rules of District Courts), a party may move for summary judgment or summary disposition of any issue when the evidentiary materials filed in support of the motion show that there is no genuine issue of any material fact. The moving party must support the motion by attaching and referencing evidentiary materials supporting the party’s statement of undisputed facts. Id. The opposing party must state the material facts which the party contends are disputed and attach supporting evidentiary materials. Id. The court shall grant judgment to one of the parties if it appears that there is no substantial controversy as to any material fact and that one party is entitled to judgment as a matter of law. Id. at Rule 13(e). All reasonable inferences are taken in favor of the opposing party. Wittenberg v.

Fid. Bank, N.A., 1992 OK 165, ¶ 2, 844 P.2d 155, 156. The party opposing the motion cannot, on appeal, rely on any fact or evidentiary material not included or referenced in its statement of disputed facts.

Rules of District Courts at Rule 13(b).

Summary judgment settles only questions of law. Rox Petrol., L.L.C. v. New Dominion, L.L.C., 2008 OK 13, ¶ 2, 184 P.3d 502, 504. We review rulings on issues of law by a de novo standard pursuant to the plenary power of the appellate courts without deference to the trial court.

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Glasco v. State ex rel. Okla. Dept. Of Corrections, 2008 OK 65, ¶ 8, 188 P.3d 177, 181. Thus, summary judgments are reviewed de novo. Id. Jennings v. Badgett, 2010 OK 7, ¶¶ 4-5, __ P.3d __. ¶10 To prevail as the moving party on a motion for summary judgment, one who defends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiff’s theory of recovery or (b) prove each essential element of an affirmative defense, showing in either case that, as a matter of law, the plaintiff has no viable cause of action. Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 9, 977 P.2d 1040, 1044. A party opposing a motion for summary judgment must show “the reasonable probability, something beyond a mere contention, that [he] will be able to produce competent, admissible evidence at the time of trial which might reasonably persuade the trier of fact in his favor on the issue in dispute.” Davis v. Leitner, 1989 OK 146, ¶ 15, 782 P.2d 924, 927.

ANALYSIS I. Choice of Law ¶11 Cook’s argues that Oklahoma law should be applied by this Court to resolve the issues presented relating to the Policy. Admiral argues that Texas law should be applied. ¶12 This suit was brought in Oklahoma; therefore, Oklahoma choice of law principles must be applied. Harvell v. Goodyear Tire and Rubber Co., 2006 OK 24, ¶ 14 n.21, 164 P.3d 1028, 1033 n.21. We must apply Oklahoma’s “choice of law rule for contract actions4 . . . unless the contract terms provide otherwise5 . . . .”

Id. at ¶ 14, 164 P.3d at 1033-34 (emphasis added). That is, in Oklahoma we abide by “the maxim that a court will not interfere with the contract of the parties absent fraud, duress, undue influence or mistake, and that courts are interested only with the legality of the contract.” Bilbrey v. Cingular Wireless, L.L.C., 2007 OK 54, ¶ 9, 164 P.3d 131, 134 (citing Barnes v.

Helfenbein, 1976 OK 33, 548 P.2d 1014). Where the language of a contract is clear and unambiguous on its face, that which stands expressed within its four corners must be given effect.

May v. Mid-Century Insurance Co., 2006 OK 100, 151 P.3d 132. Generally, absent an ambiguity, insurance contracts are subject to the same rules of construction as other contracts. Max True Plastering Co. v. U.S. Fidelity and Guaranty Co., 1996 OK 28, 912 P.2d 861 (footnote omit2688

ted). However, because of their adhesive nature, these contracts are liberally construed to give reasonable effect to all their provisions. Id. When interpreting an insurance contract, “words are given effect according to their ordinary or popular meaning.” Id. at 865 (footnote omitted). ¶13 The Policy contains a Service of Suit endorsement which “modifies insurance provided in all coverage parts that are contained in [the Policy].”6 In this endorsement, the parties agreed on the following: In the event of [Admiral’s] failure to pay any amount claimed to be due, we, at [Cook’s] request, will submit to the jurisdiction of any court of competent jurisdiction within the United States of America or Canada and will comply with all requirements necessary to give such court jurisdiction and all matters arising hereunder shall be determined in accordance with the law and practice of such Court. (Emphasis added).

Cook’s argues that pursuant to this language in the insurance contract, “Admiral has agreed for this matter to be determined in accordance with the laws of and practice of Oklahoma.”7 Giving effect to this language according to its ordinary and popular meaning, we agree.8 We find that these words clearly and definitely express the parties’ intent to have this case determined in accordance with the law of any court of competent jurisdiction including the District Court of Cimarron County, Oklahoma, chosen by Cook’s. Therefore, pursuant to the agreement of the parties, we find that Oklahoma law governs this dispute.

II. Coverage Pursuant to the Policy ¶14 The Policy contains a Commercial General Liability Coverage Form (the Coverage Form) which states, in pertinent part: [Admiral] will pay those sums that the Insured becomes legally obligated to pay as damages because of . . . “property damage” to which this insurance applies. We will have the right and duty to defend the Insured against any “suit” seeking those damages. However, we will have no duty to defend the Insured against any “suit” … to which this insurance does not apply.

The Coverage Form is then modified by numerous endorsements. The endorsements relevant on appeal are (1) the Total Pollution Exclusion

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Endorsement, (2) the Limited Sudden and Accidental Pollution Extension, and (3) the Texas Changes endorsement. ¶15 The Total Pollution Exclusion Endorsement modifies the Coverage Form by completely excluding from coverage any injury or damage caused by pollution. Several pages later, however, the Coverage Form is modified by the Limited Sudden and Accidental Pollution Extension. This endorsement extends coverage for property damage and clean-up expenses caused by pollution in limited circumstances. The endorsement only applies to pollution that is the result of “a sudden and accidental discharge, dispersal, release or escape of oil or gas or other derivatives or pollutants (including any oil refuse or oil mixed with wastes) upon surface land or inland water and only if the ‘property damage’ and ‘cleanup expenses’ occur from operations or business conducted by or for [Cook’s] . . . .” Furthermore, the extension only applies if both9 of the following conditions have been met: a. The occurrence was accidental and was neither expected nor intended by [the insured]. An accident will not be considered unintended nor unexpected unless caused by some intervening event neither expected nor intended by [the insured]. ... c. The occurrence became known to or by [the insured] within 30 days after its commencement and is reported to [Admiral] within 90 days.

Finally, the Coverage Form is modified by an endorsement entitled Texas Changes. This endorsement states, in pertinent part: With regard to liability for . . . Property Damage[,] . . . unless [Admiral is] prejudiced by the Insured’s . . . failure to comply with the requirement, no provision of this Coverage Part requiring . . . any insured to give notice of “occurrence”, claim or “suit”, or forward demands, notices, summonses or legal papers in connection with a claim or “suit” will bar coverage under this Coverage Part. a. Coverage for Accidental Pollution ¶16 Admiral argues that there is no coverage pursuant to the Limited Sudden and Accidental Pollution Extension because the pollution was not sudden and accidental. Admiral states Vol. 81 — No. 31 — 11/20/2010

that “there is no evidence that the leakage from the mud pit at the . . . well was ‘sudden and accidental.’”10 To overcome Admiral’s argument at this summary judgment stage, Cook’s must show “the reasonable probability, something beyond a mere contention, that [it] will be able to produce competent, admissible evidence at the time of trial which might reasonably persuade the trier of fact in [its] favor on the issue in dispute.” Davis v. Leitner, 1989 OK 146, ¶ 15, 782 P.2d 924, 927. Cook’s has already presented evidence “that the problem” at the well site possibly arose “within a 7-14 day time span (July 14-28, 2006).”11 Having already come forward with evidence that may narrow the range of time during which the pollution could have occurred to only one to two weeks, we find not only that Cook’s has shown a reasonable probability that it will be able to produce competent, admissible evidence at trial which might reasonably persuade the trier of fact that the pollution was sudden and accidental, but also that the evidence already presented raises a genuine issue of material fact. b. Failure to Comply with Notice Requirement ¶17 Admiral argues that “it is clear that [Cook’s] cannot satisfy Condition c [of the Limited Sudden and Accidental Pollution Extension], which requires that the occurrence became known to the insured within 30 days of its occurrence and be reported to Admiral within 90 days.”12 “[I]n cases of doubt, words of inclusion are liberally applied in favor of the insured and words of exclusion are strictly construed against the insurer [and] an interpretation which makes a contract fair and reasonable is selected over that which yields a harsh or unreasonable result . . . .” Max True Plastering Co. v. U.S. Fidelity and Guaranty Co., 1996 OK 28, ¶ 8, 912 P.2d 861, 865. ¶18 It is undisputed that the occurrence did not become known to Cook’s within 30 days.

In fact, the pollution occurred sometime in July of 2006 and did not become known to Cook’s until January 30, 2007, over six months later.

Based solely upon the language found in the Limited Sudden and Accidental Pollution Extension, no coverage could extend to the occurrence because the notice requirement was not met. However, in Oklahoma “[t]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others.” 15 O.S.2001 § 157.13 As stated above, the Coverage Form is modified not only by the

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Total Pollution Exclusion Endorsement and the Limited Sudden and Accidental Pollution Extension, but also by the Texas Changes endorsement. Just as the limited pollution extension affects the total pollution exclusion, the Texas Changes endorsement affects the limited pollution extension. In sum, all three endorsements, by modifying the Coverage Form, are part of the Coverage Form. ¶19 The Texas Changes endorsement, quoted in part above, states that no failure to comply with a notice requirement will bar coverage unless Admiral is prejudiced thereby. Therefore, although Cook’s failed to comply with the notice requirement (Condition c.) in the Limited Sudden and Accidental Pollution Extension, Admiral must show that it has been prejudiced

by Cook’s failure to timely notify Admiral of the occurrence in order for coverage to be excluded based upon this failure. “[A]n insurance policy, a contract of adhesion, is construed to give reasonable effect to its provisions.”

Brown v. Patel, 2007 OK 16, ¶ 11 n.8, 157 P.3d 117, 122 n.8 (citations omitted). ¶20 The above analysis reveals that whether Admiral was required under the insurance policy to pay Cook’s claim is a genuine issue of material fact. The resolution of this issue depends upon the resolution of two sub-issues of disputed fact: (1) whether the leakage from the mud pit was sudden and accidental, and (2) whether Admiral was prejudiced by Cook’s failure to comply with the notice requirement.

Although only one of these two sub-issues needs to be found in Admiral’s favor in order for coverage to be denied, neither can be determined as a matter of law at the summary judgment stage.14 III. Bad Faith ¶21 Cook’s argues that Admiral acted in bad faith because it did not undertake any investigation into the facts and circumstances of the case and because it based its denial entirely on an inaccurate reading of the Policy in its file. In order to prove a claim of breach of an insurer’s duty of dealing fairly and in good faith, a plaintiff must prove the following elements: 1) the insurer was required under the insurance policy to pay the insured’s claim; 2) the insurer’s refusal to pay the claim in full was unreasonable under the circumstances because either: a) it had no reasonable basis for the refusal, b) it did not perform a proper investigation of the claim, or c) it did not evaluate the 2690

results of the investigation properly; 3) the insurer did not deal fairly and in good faith with the insured; and 4) the insurer’s violation of its duty of good faith and fair dealing was the direct cause of the injury sustained by the insured. Andres v. Oklahoma Farm Bureau Mutual Insurance Co., 2009 OK CIV APP 97, ¶ 16, __ P.3d __; see Oklahoma Uniform Jury Instructions - Civil (2d) No. 22.2. The Oklahoma Supreme Court has stated: Every insurance contract carries with it the duty to act fairly and in good faith in discharging its contractual responsibilities.

A party prosecuting a claim of bad faith carries the burden of proof and must plead all the elements of the intentional tort. The essence of the tort is the unreasonable, badfaith conduct of the insurer. A central issue is whether the insurer had a good faith belief in some justifiable reason for the actions it took or omitted to take that are alleged to be violative of the duty of good faith and fair dealing.

Garnett v. Government Employees Insurance Co., 2008 OK 43, ¶ 22, 186 P.3d 935, 944 (footnotes omitted).

“Before 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.” Id. ¶22 The trial court granted summary judgment in favor of Admiral on the issue of bad faith. The trial court stated that “[b]ecause there was no potential coverage under the Policy for any of the claims asserted by [Fossil] against [Cook’s], Admiral was not obligated to provide a defense to [Cook’s] in this action,” and “[b]ecause Admiral owed no duty to defend [Cook’s] and has no duty to indemnify [Cook’s] against any loss in this action, Admiral has not violated its duty of good faith and fair dealing.” However, as stated in the preceding section of this Opinion, whether Admiral was required under the Policy to pay Cook’s claim is a genuine issue of material fact. Therefore, a determination as to whether Admiral acted in bad faith is premature, and we must find that the trial court erred in granting summary judgment on this issue.

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CONCLUSION ¶23 Based on our review of the record on appeal and applicable law, we reverse the order of the trial court granting summary judgment because we find genuine issues of material fact remain on the issue of coverage. Furthermore, we find the decision on the issue of bad faith is premature. We remand this case for further proceedings in a manner consistent with this Opinion. ¶24 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. WISEMAN, C.J., and FISCHER, P.J., concur.

1. Rule 1.36, Okla. Sup. Ct. Rules, 12 O.S. Supp. 2004, ch. 15, app.

1. Pursuant to this rule, this appeal stands submitted without appellate briefing.

2. Fossil was formerly known as Spectra Energy. Record (R.), p. 90.

3. R., p. 201.

4. “An insurance policy is a contract. The rules of construction and analysis applicable to contracts govern equally insurance policies.”

May v. Mid-Century Insurance Co., 2006 OK 100, ¶ 22, 151 P.3d 132, 140 (footnotes omitted).

5. Generally, “[t]he law of the state chosen by the parties to govern their contractual rights and duties will be applied . . . .” Restatement (Second) of Conflict of Laws, § 187 (1971). See also Telex Corp. v. Hamilton, 1978 OK 32, ¶¶ 7-8, 576 P.2d 767, 768 (implying that, even if the contract had not been entered into and performed in Oklahoma, Oklahoma law would have been applied because the contract so provided); 43 Am. Jur. 2d Insurance § 347 (“[w]here it is provided by the contract of insurance itself that it shall be construed in accordance with the laws of a designated place and the stipulation is valid, such stipulation as a general rule controls the construction and effect of the contract . . .”).

However, “if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue [then the law of the state chosen by the parties will be applied unless] either (a) the chosen state has no substantial relationship . . . and there is no other reasonable basis for the parties’ choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state . . . and which . . . would be the state of the applicable law in the absence of an effective choice of law by the parties.”

Restatement (Second) of Conflict of Laws, § 187 (1971). Even if the Restatement analysis for issues that could not have been resolved by an explicit provision in the agreement was applied, Oklahoma law, if found to be chosen by the parties (infra), would govern this dispute.

Oklahoma has a substantial relationship to the parties and no state has a materially greater interest in the determination of the issues presented in this case because the performance and the pollution all occurred in Oklahoma.

6. R., p. 99.

7. R., p. 178. Admiral does not argue that Oklahoma courts are not courts of competent jurisdiction. We note that a court of competent jurisdiction is one having jurisdiction of a person and the subject matter and the power and authority of law at the time to render the particular judgment. Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, ¶ 15, 212 P.3d 447, 454. Oklahoma has personal and subject matter jurisdiction over the parties and this dispute. See Reeds v. Walker, 2006 OK 43, ¶ 11, 157 P.3d 100, 107; and Gilbert v. Security Finance Corporation of Oklahoma, Inc., 2006 OK 58, ¶ 16, 152 P.3d 165, 173.

8. See, e.g., TH Agriculture & Nutrition, LLC v. Ace European Group Ltd., 488 F.3d 1282, 1286 (10th Cir. 2007) (confronted with the phrase, “[a]ll matters arising hereunder shall be determined in accordance with the law and practice of such Court,” the court stated that this addressed the parties’ choice of law).

9. The endorsement requires that four conditions be met, but only two (a. and c.) are relevant to this appeal.

10. R., p. 94.

11. R., p. 178. Cook’s has attached an OCC report (R., p. 201) and an excerpt from a deposition of Peter Massion, the president of Fossil (R., p. 205), in support of its assertion that the “problem [at the well site] arose within a 7-14 day time span (July 14-28, 2006).” The OCC report is dated July 28, 2006. In this report the OCC investigator, Rich-

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ard Kersey (“RKY” in the report), determined that the mud put liner, according to him, was “not installed correctly, sides of liner down in pit, fluids contaminating the vertical walls and bottom.” Kersey made this determination during an “Inspection Discovery.” Massion’s deposition reveals that one to two weeks before Kersey notified Fossil of the leakage Fossil made a determination that the oil well in question was “going to be an unsuccessful reentry.” Even though Fossil examined the well presumably around the time its determination regarding reentry was made, Massion received no information from his employees about the mud pit liner or the need to clean up any leakage. The first indication of any leakage was not until Kersey’s OCC report. Based on this evidence it can reasonably be inferred by a trier of fact that Fossil examined its well just one to two weeks prior to the OCC report and that the leakage did not occur until sometime during the two weeks prior to July 28, 2006. Although Admiral nevertheless claims that there is no evidence that the accident was sudden and accidental, we note that Admiral has not cited to any evidence that the leakage was not sudden and accidental (e.g., evidence that it occurred over an extended period of time).

12. R., p. 94.

13. See also Oklahoma Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12, ¶ 27, 160 P.3d 936 (the courts will read the provisions of a contract in their entirety to give effect to the intention of the parties as ascertained from the four corners of the contract).

14. It also cannot be determined at this stage whether Admiral owed Cook’s a duty to defend. In First Bank of Turley v. Fidelity and Deposit Insurance Company of Maryland, 1996 OK 105, ¶ 13, 928 P.2d 298, 303-304, the Oklahoma Supreme Court set forth the parameters of the duty to defend: The duty to defend is separate from, and broader than, the duty to indemnify, but the insurer’s obligation is not unlimited. The defense duty is measured by the nature and kinds of risks covered by the policy as well as by the reasonable expectations of the insured. An insurer has a duty to defend an insured whenever it ascertains the presence of facts that give rise to the potential of liability under the policy. The insurer’s defense duty is determined on the basis of information gleaned from the petition (and other pleadings), from the insured and from other sources available to the insurer at the time the defense is demanded (or tendered) rather than by the outcome of the third-party action.

(Emphasis and footnotes omitted.)

Whether Admiral owed Cook’s a duty to defend also depends upon the resolution of genuine issues of material fact and, therefore, summary judgment is improper.

2010 OK CIV APP 124 HIGHLAND CROSSING, L.P., an Oklahoma limited partnership, Plaintiff/Appellant, vs.

KEN LASTER COMPANY, an Oklahoma corporation, Defendant/Appellee, vs.

ROYCE WRIGHT, General Partner of Highland Crossing, L.P., Third Party Defendant.

Case No. 107,196. June 25, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE JEFFERSON D. SELLERS, JUDGE AFFIRMED Kenneth M. Smith, RIGGS, ABNEY, NEAL, TURPEN ORBISON & LEWIS, Tulsa, Oklahoma, for Plaintiff/Appellant, Joe M. Fears, BARBER & BARTZ, Tulsa, Oklahoma, for Defendant/Appellee.

BAY MITCHELL, JUDGE:

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¶1 Highland Crossing, L.P., Plaintiff/Appellant (“Owner”), seeks review of an order confirming an arbitration award in favor of Defendant/Appellee Ken Laster Company (“Subcontractor”).1 The trial court denied Owner’s Petition to Vacate the arbitration award and granted Subcontractor’s Cross-Application for Order Confirming Arbitration Award against Owner. ¶2 Owner was a developer of a construction project in Sand Springs, Oklahoma, which secured the services of Texas BBL, L.P. (“General Contractor”). In furtherance of this project, in August 2005, Owner entered into a written contract (“Contract”) with General Contractor for the construction of multi-family apartments. This Contract contained an express agreement to arbitrate “any claim arising out of or related to the Contract.” Subsequently, in furtherance of the apartment construction project, General Contractor entered into a subcontract agreement (“Subcontract”) with Subcontractor in September 2005 whereby Subcontractor agreed to perform the dirt work, underground utilities and infrastructure work for a lump sum price of $825,384. The Subcontract expressly included an agreement to arbitrate “in the same manner and under the same procedure as provided in the Contract.” The construction project was completed in the spring of 2007. During the course of construction, Subcontractor submitted claims to the General Contractor, some of which were denied. In 2007, Subcontractor commenced an arbitration proceeding against General Contractor seeking to recover over $200,000 it claimed remained due pursuant to the Subcontract. Later, Subcontractor filed a motion to join Owner in the arbitration to which Owner filed an objection on the basis that Owner had “no known contract with any of the parties” that would require Owner’s participation in arbitration.2 After Subcontractor filed a response to Owner’s objection, the arbitrator held a hearing then ruled in Subcontractor’s favor, ordering that Owner be joined as an additional party. ¶3 Arbitration hearings were held in December 2007 and January 2008. The arbitrator entered his award on April 28, 2008 (and modified on May 27) which determined that Subcontractor was entitled to judgment against Owner in the amount of $67,940.75 plus reasonable attorney fees of $50,000 and expenses in the amount of $11,000. Additionally, the arbitrator awarded Subcontractor $3,700 2692

against General Contractor. Owner was also ordered to pay the administrative fees for the arbitration and the expenses and compensation of the arbitrator. Owner thereafter filed its Petition to Vacate the arbitration award in the district court based upon the lack of an agreement to arbitrate claims of the Subcontractor pursuant to 12 O.S. Supp. 2008 §1874(a)(5).

Ultimately, the trial court confirmed the modified arbitration award and entered judgment against Owner in the amount of $67,940.75, with interest, together with arbitration attorney fees in the amount of $50,000 and arbitration expenses of $22,097.67. The trial court further found Subcontractor entitled to an award of reasonable attorney fees incurred in the trial court proceeding in accordance with 12 O.S. Supp. 2008 §936 and costs pursuant to 12 O.S. 2001 §928. ¶4 The only issue on appeal is whether the Owner was subject to an agreement to arbitrate upon which the arbitration award could be based.3 We hold that under the facts of this case, Owner was a party to an agreement to arbitrate the disputes arising from the Contract and Subcontract, and the trial court correctly confirmed the arbitration award. ¶5 The interpretation of an arbitration agreement is governed by state law principles of general contract interpretation. Wilkinson v.

Dean Witter Reynolds, 1997 OK 20, 933 P.2d 878.

The courts will read the provisions of a contract in their entirety, Mortgage Cleaning Corp. v.

Baughman Lumber Co., 1967 OK 232, ¶11, 435 P.2d 135, 138, to give effect to the intention of the parties as ascertained from the four corners of the contract, and where the language is ambiguous, it will be interpreted in a fair and reasonable sense. Id., at ¶13, 435 P.2d at 139. ¶6 Generally, the courts will enforce arbitration agreements according to the terms of the parties’ contract, as arbitration “is a matter of consent, not coercion.” Volt Info. Sciences, Inc. v.

Bd. Of Trustees, 489 U.S. 468, 479 (1989). To ensure that 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 a particular dispute to arbitration. Oklahoma Oncology & Hematology, P.C. v. U.S. Oncology, Inc., 2007 OK 12, ¶22, 160 P.3d 936, 944-45; See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995). There is a “strong presumption in favor of arbitration.” Towe, Hester & Erwin, Inc. v.

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Kansas City Fire & Marine Ins. Co., 1997 OK CIV APP 58, ¶24, 947 P.2d 594, 599. “Ambiguities are resolved in favor of finding the dispute is arbitrable.” Farrell v. Concept Builders, Inc., 2008 OK CIV APP 34, ¶7, 208 P.3d 483, 485; City of Muskogee v. Martin, 1990 OK 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.”). The question as to the existence of a valid, enforceable agreement to arbitrate is a question of law reviewed de novo. Oklahoma Oncology & Hematology, P.C., ¶19 at p. 944. ¶7 In Oklahoma, there are limited circumstances set forth by statute under which a party’s motion to vacate an arbitration award may be granted. See 12 O.S. Supp. 2008 §1874(A).

That statute provides in pertinent part as follows: (A.) Upon an application and motion to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if:…

(5.) There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under subsection C of Section 16 of this act not later than the beginning of the arbitration hearing;…

(Emphasis added). 12 O.S. §1874(A)(5). ¶8 In this case, Owner argues it did not sign and was not a party to the Subcontract, and thus should not be required to arbitrate disputes arising from the Subcontract. Owner would apparently have us ignore its Contract with General Contractor, which binds Owner to arbitrate “any claim arising out of or related to the Contract.” That Contract demonstrates Owner’s agreement to arbitrate claims related to the construction project. ¶9 The parties’ respective contractual obligations, the facts giving rise to the dispute, and the interrelationship of relevant contractual provisions in both contracts demonstrate the inseparable nature of Subcontractor’s claims against General Contractor and Owner. Pursuant to the Contract, Owner agreed to pay General Contractor for the cost of construction, and the Contract expressly contemplates the subcontracting of work as part of the project. The Contract specifies that “[e]ach subcontract agreement . . . shall allow to the Subcontractor . . . the benefit of all rights, remedies and redress Vol. 81 — No. 31 — 11/20/2010

against the Contractor that the Contractor, by the Contract Documents, has against the Owner.” Further, we note “[t]he very concept of a subcontract is that of an agreement by which performance of a portion of the prime contract is delegated to another.” 6 Philip L. Bruner & Patrick J. O’Connor, Bruner & O’Connor on Construction Law §20:32 (May 2010). ¶10 General Contractor’s primary defense to non-payment of Subcontractor’s claims was on the basis of the terms of the Subcontract, which included a provision rendering Owner’s payment to General Contractor a condition precedent to General Contractor’s obligation to pay Subcontractor. The parties refer to this provision as a “pay-if-paid provision.” In the course of the arbitration proceeding, General Contractor asserted a crossclaim for indemnity against Owner, asking that any amounts still owing to Subcontractor on the project should be paid by Owner to General Contractor for payment to Subcontractor. Given the interdependent contractual obligations of the parties, relief could not be afforded Subcontractor unless and until Owner was joined as a party in the arbitration. ¶11 Several specific provisions in both contracts demonstrate the interrelationship between the parties and their respective contractual duties and obligations. The Contract entered into by Owner and General Contractor includes an agreement to arbitrate “[a]ny claim arising out of or related to the Contract.” The Subcontract expressly provides, “Subcontractor agrees to abide by the terms, conditions and covenants of the Contract Documents between the Owner and [General Contractor]. . . . The Contract Documents consist of this AGREEMENT, . . . the Agreement between Owner and [General Contractor], and any and all conditions of the Contract (General, Supplementary and other) . . . .” The Subcontract further specifies that “in the event the Contractor becomes a party to binding arbitration arising out of or relating to the Contract, which binding arbitration involves the work required under this Subcontract, Contractor shall have the right, in its sole discretion to join Subcontractor to such binding arbitration.”4 Finally, the agreement-to-arbitrate provision in the Subcontract expressly provides “[a]ny controversy of claim between [General Contractor] and the Subcontractor arising out of or related to this Subcontract, or the breach thereof, shall be settled by arbitration, which shall be con-

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ducted in the same manner and under the same procedure as provided in the Contract with respect to claims between the Owner and [General Contractor]. . . .” ¶12 “Where two contracts, not executed at the same time, refer to the same subject matter and show on their face that one was executed to carry out the intent of the other, it is proper to construe them together as if they were one contract.” Bixler v. Lamar Exploration Co., 1987 OK 15, ¶5, 733 P.2d 410, 411-12. It is clear that the parties’ respective contracts relate to the same construction project, reference the parties’ respective related duties and obligations, and were both executed to carry out the mutual intent of completion of the project. Further, the Subcontract expressly incorporates the Contract, binding Subcontractor to the terms and conditions thereto. We therefore interpret the express contractual language of both contracts together, the meaning of which is plain and unambiguous. Had Owner intended to exclude Subcontractors from his agreement to arbitrate, the Contract’s arbitration provision should have included express language of limitation as to such claims or parties.5 The express arbitration provision in the Subcontract, the broad language of the arbitration provision in the Contract, coupled with the Subcontract’s express reference to that agreement are substantially sufficient to permit a finding that all three parties intended to arbitrate all disputes arising out of the construction project.6 Thus, Owner’s contention that there was no agreement from which it could be compelled to arbitrate is unpersuasive.7 ¶13 Upon review of the facts of the dispute, the terms of the respective construction contracts revealing all parties’ agreement to arbitrate, we affirm the trial court’s Order Confirming the Arbitration Award. ¶14 AFFIRMED. JOPLIN, P.J., and BELL, V.C.J., concur.

2010 OK CIV APP 121 IN RE: PROTEST TO THE CERTIFICATE OF TITLE BRAND ISSUED TO AAAA WRECKER SERVICE, INC. ON A 2004 TOYOTA DBS, VIN # 5TBDT44154S460009.

AAAA WRECKER SERVICE, INC., Appellant, vs. OKLAHOMA TAX COMMISSION, Appellee.

Case No. 107,456. July 7, 2010 APPEAL FROM THE OKLAHOMA TAX COMMISSION KRIS D. KASPER, ADMINISTRATIVE LAW JUDGE REVERSED AND REMANDED WITH DIRECTIONS David Dunlap, DUNLAP LAW FIRM, Oklahoma City, Oklahoma, for Appellant Marjorie Welch, INTERIM GENERAL COUNSEL, Sean R. McFarland, ASSISTANT GENERAL COUNSEL, OKLAHOMA TAX COMMISSION, Oklahoma City, Oklahoma, for Appellee JERRY L. GOODMAN, JUDGE:

1. The trial court entered an Order Certifying Final Judgments on May 29, 2009, certifying two judgments as final pursuant to 12 O.S. 2001 §994(A). The two judgments so certified were as follows: the Journal Entry of Judgment filed February 6, 2009 and the Agreed Journal Entry of Judgment as to fees and costs filed February 25, 2009. Each of these Orders was attached to Owner’s Petition in Error.

2. In its Petition to Vacate, Owner specifically points to the absence of any agreement to arbitrate between itself and Subcontractor, while it is silent on the fact of its agreement to arbitrate disputes in its Contract with General Contractor.

3. Subcontractor contends Owner waived its objection to arbitration and/or independent appellate review by conduct manifesting consent to having the arbitrator decide the issue of arbitrability. The record reflects that Owner timely raised its objection to arbitration at the commencement of proceedings in conformance with 12 O.S.

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§1874(A)(5) and therefore, we find no waiver of Owner’s objection to arbitrate and/or the right to a de novo review. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (holding the arbitrability of a dispute was subject to independent review by the courts).

4. General contractor raised no objection to the joinder of Owner as an additional party to the arbitration proceeding and, in fact, filed a cross-claim against Owner for indemnity.

5. In fact, §4.64 of the General Conditions of the Contract expressly prohibits the joinder of the architect in arbitration. That provision additionally expressly prohibits joinder of “parties other than the Owner, Contractor, a separate contractor as described in Article 6 and other persons substantially involved in a common question of fact or law whose presence is required if complete relief is to be accorded in arbitration.” (Emphasis added).

6. As a general rule, broad general incorporation language in a construction contract is sufficient to capture an arbitration provision. 6 Philip L. Bruner & Patrick J. O’Connor, Bruner & O’Connor on Construction Law §20:32 (May 2010); See Carter v. Schuster, 2009 OK 94, ¶14, 227 P.3d 149, 153 (finding incorporation by reference as one of five recognized theories for binding nonsignatories to arbitration agreements).

7. Subcontractor asserts additional theories (i.e., equitable estoppel, agency, direct benefits doctrine, and third-party beneficiary theories) under which it contends it is entitled to arbitration of its claims against Owner. Because our review of the Contract and Subcontract satisfies us that all parties agreed to arbitrate, we need not determine if the arbitration award would be confirmed under the other asserted theories.

¶1 Appellant AAAA Wrecker (AAAA) seeks review of the Oklahoma Tax Commission’s (OTC) order finding that AAAA was only entitled to obtain a “junk” vehicle title rather than a “salvage” vehicle title. Based on our review of the facts and applicable law, we reverse and remand with directions.

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FACTS

STANDARD OF REVIEW

¶2 A 2004 Toyota DBS (Tundra pickup), when first registered in Oklahoma was issued a “rebuilt vehicle” pursuant to 47 O.S.2001 and Supp. 2009, § 1105(B)(3). It was later stolen.

¶7 Title 75 O.S. 2001, § 322 sets forth those situations in which the District Court and this Court can set aside or modify the order of an administrative agency. It provides in pertinent part:

¶3 Columbia National Insurance Company (Columbia) after paying the loss claim, issued an “Automobile Loss Notice” indicating the vehicle’s loss of value as 100%. On December 19, 2008, OTC issued Columbia an “unrecovered theft” title pursuant to § 1105(B)(7). ¶4 On December 31, 2008, the stolen Tundra was found in Oklahoma City. The Oklahoma City Police Department requested AAAA to tow the vehicle. AAAA stored the Tundra for one year, incurring storage fees. AAAA sought to recover its towing and storage fees by foreclosing on the title and selling the truck at public auction, pursuant to 42 O.S.2001 and Supp.

2008, §§ 91 through 132. AAAA published notice of the sale to Columbia, which demanded return of the vehicle without compensating AAAA or making any further efforts to recover the vehicle. AAAA sold the truck to a third party and requested a “salvage” certificate of title to complete the sale. OTC refused to issue a salvage title unless AAAA provided another statement of loss issued by Columbia which showed the loss of value of the vehicle to be less than 100%. Columbia refused to provide the amended statement and OTC refused to issue a salvage title. OTC’s position is that the loss remains at 100% until it is notified otherwise; thus it can only issue a junk title. AAAA sued to force OTC to issue a salvage title so it can complete the sale of the truck and recoup its storage fees. ¶5 An administrative law judge (ALJ) conducted an evidentiary hearing. The truck was subsequently inspected. It was found operable and in “good” condition except for minor body damage, an off-center steering wheel, and a faulty air bag light. ¶6 On June 8, 2009, the ALJ entered an order containing findings of fact, conclusions of law, and recommendations. The ALJ found OTC’s issuance of a junk vehicle title was correct and denied AAAA’s protest. On review by the OTC sitting en banc, it adopted the findings of fact and conclusions of law entered by the ALJ and entered judgment accordingly, resulting in this appeal.

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(1) In any proceeding for the review of an agency order, the Supreme Court or the district court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are: (a) in violation of constitutional provisions; or (b) in excess of the statutory authority or jurisdiction of the agency; or (c) made upon unlawful procedure; or (d) affected by other error of law, or (e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or (f) arbitrary or capricious; or (g) because findings of fact, upon issues essential to the decision were not made although requested. ¶8 Appellate courts review the entire record made before an administrative agency acting in its adjudicatory capacity to determine whether the findings and conclusions set forth in the agency order are supported by substantial evidence. Dugger v. State ex rel. Oklahoma Tax Comm’n, 1992 OK 105, ¶ 9, 834 P.2d 964, 968. Adjudicatory orders will be affirmed if the record contains substantial evidence in support of the facts upon which the decision is based, and if the order is otherwise free of error. Id. ¶9 In determining whether an administrative agency’s findings and conclusions are sup-

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ported by substantial evidence, the reviewing court will consider all the evidence including that which fairly detracts from its weight. State ex rel. Cartwright v. Oklahoma Corp. Comm’n, 1982 OK 11, ¶ 15, 640 P.2d 1341, 1347; El Paso Natural Gas Co. v. Corporation Comm’n, 1981 OK 150, ¶ 9, 640 P.2d 1336, 1338. However, great weight is accorded the expertise of an administrative agency. On review, a presumption of validity attaches to the exercise of expertise. An appellate court may not substitute its judgment for that of an agency, particularly in the area of expertise which the agency supervises.

Denney v. Scott, 1992 OK 134, ¶ 8, 848 P.2d 1142, 1143; Abstracts of Oklahoma, Inc. v. Payne County Title Co., 1992 OK 13, ¶ 13, 825 P.2d 1334, 1339; Tulsa Area Hosp. Council, Inc. v. Oral Roberts Univ. 1981 OK 29, ¶ 10, 626 P.2d 316, 320. ¶10 However, an administrative agency order interpreting law is reviewed using a de novo standard. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8, and n.5, 33 P.3d 302, 305.

It has been noted that “an administrative agency’s statutory interpretation must be reasonable, and the agency cannot extend its power beyond that granted by statute.” Henderson v.

Maley, 1991 OK 8, n.7, 806 P.2d 626, 633. Furthermore: An administrative order is subject to reversal if an appealing party’s substantial rights are prejudiced because the agency’s decision is entered in excess of statutory authority or jurisdiction, or if an order is entered based on an error of law, or if the agency’s findings are clearly erroneous in view of the reliable, material, probative and substantial competent evidence in the record.

Tubbs v. State ex rel., Teachers’ Retirement System of Oklahoma, 2002 OK 79, ¶¶ 16-18, 57 P.3d 571, 578-79 (citing City of Tulsa v. State ex rel. Public Employees Relations Bd., 1998 OK 92, ¶¶ 12-13, 967 P.2d 1214, 1219).

THE APPLICABLE STATUTES ¶11 Title 47 O.S.2001 and Supp. 2008, § 1105(A) defines six types of vehicles in Oklahoma and § 1105(B) defines seven types of titles which OTC may issue:

years and which has been damaged by collision or other occurrence to the extent that the cost of repairing the vehicle for safe operation on the highway exceeds sixty percent (60%) of its fair market value, . . . immediately prior to the damage. . . .

2. “Rebuilt vehicle” means any salvage vehicle which has been rebuilt and inspected for the purpose of registration and title; 3. “Flood-damaged vehicle” means a salvage or rebuilt vehicle which was damaged by flooding or a vehicle which was submerged at a level to or above the dashboard of the vehicle and on which an amount of loss was paid by the insurer; 4. “Unrecovered-theft vehicle” means a vehicle which has been stolen and not yet recovered; 5. “Recovered-theft vehicle” means a vehicle, including a salvage or rebuilt vehicle, which was recovered from a theft; and 6. “Junked vehicle” means any vehicle which is incapable of operation or use on the highway, has no resale value except as a source of parts or scrap and has an eighty percent (80%) loss in fair market value.

B. The owner of every vehicle in this state shall possess a certificate of title as proof of ownership of such vehicle . . . .

There shall be seven types of certificates of title: 1. Original title for any motor vehicle which is not a remanufactured, salvage, unrecovered-theft, rebuilt or junked vehicle; 2. Salvage title for any motor vehicle which is a salvage vehicle or is specified as a salvage vehicle or the equivalent thereof on a certificate of title from another state; 3. Rebuilt title for any motor vehicle which is a rebuilt vehicle; 4. Junked title for any motor vehicle which is a junked vehicle or is specified as a junked vehicle or the equivalent thereof on a certificate of title from another state;

A. As used in the Oklahoma Vehicle License and Registration Act:

5. Classic title for any motor vehicle, except a junked vehicle, which is twentyfive (25) model years or older;

1. “Salvage vehicle” means any vehicle which is within the last ten (10) model

6. Remanufactured title for any vehicle which is a remanufactured vehicle; and

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7. Unrecovered-theft title for any motor vehicle which has been stolen and not recovered.

Application for a certificate of title, whether the initial certificate of title or a duplicate, may be made to the Tax Commission or any motor license agent. … ¶12 Further, relevant to this appeal is § 1105(O): The ownership of any unrecovered vehicle which has been declared a total loss by an insurer because of theft shall be transferred to the insurer by an unrecoveredtheft vehicle title; provided, the ownership of any such vehicle which has been declared a total loss by an insurer licensed by the Insurance Department of the State of Oklahoma and maintaining a multi-state motor vehicle salvage processing center in this state shall be transferred to the insurer by a salvage or an unrecovered-theft title without the requirement of a visual inspection of the vehicle identification number by the insurer. Upon recovery of the vehicle, the ownership shall be transferred by an original title, salvage title, or junked title, as may be appropriate based upon an estimate of the amount of loss submitted by the insurer. ¶13 OTC claimed without an estimate of loss showing less than a total loss, it was bound by § 1105(O) to issue only a junk title.

ANALYSIS ¶14 AAAA’s primary argument is that § 1105(O) does not provide OTC a legal basis to issue a junk vehicle title, but rather creates an exception to acquiring title which applies only to insurance companies. First, it notes that in certain cases, before an insurance company can be issued title, a visual inspection of the car and its VIN number is required. However, § 1105(O) creates an exception to this rule. AAAA argues the language specifically addresses a situation where an insurance company who insures a vehicle which is later stolen and pays for its loss may first obtain an “unrecovered theft” title without the necessity of a VIN inspection. (“[P]rovided, . . . any . . . vehicle which has been declared a total loss by an insurer . . . shall be transferred to the insurer by a salvage or an unrecovered-theft title without the requirement of a visual inspection of the vehicle identification number by the insurer.” § 1105 (O)) If the stolen vehicle is Vol. 81 — No. 31 — 11/20/2010

later recovered, an insurer may be issued an original title, a salvage title, or a junk title, depending on the insurer’s opinion of the value of the now-recovered vehicle. ¶15 AAAA argues § 1105(O) applies only to an insurer in order to facilitate the swift transfer of title, but that it should not be interpreted to apply to a non-insurer seeking title to a nowrecovered vehicle. Otherwise, the very situation now before us arises: that a towing company, seeking to sell the vehicle, is at the mercy of a non-cooperative insurance company which refuses to amend its statement of loss, thus preventing the towing company from completing the sale. AAAA contends OTC’s choice to issue a junk title under § 1105(O) is erroneous as a matter of law. We agree and reverse. ¶16 We begin by repeating the statutory definitions of “junked vehicle” and “junked title” as set out in 47 O.S.2001 and Supp. 2008, §§ 1105 (A)(6) and (B)(4): “Junked vehicle” means any vehicle which is incapable of operation or use on the highway, has no resale value except as a source of parts or scrap and has an eighty percent (80%) loss in fair market value.

The only vehicle which may be issued a junked title is a junked vehicle: Junked title for any motor vehicle which is a junked vehicle or is specified as a junked vehicle or the equivalent thereof on a certificate of title from another state; According to the undisputed facts in this case, as found by the ALJ, the Tundra in question does not meet the definition of junked vehicle. The evidence shows it to be in good condition, operable, and with a resale value as demonstrated by its tentative sale at auction.

Significantly, by OTC’s tacit admission, it could have been issued a salvage title but for the lack of a loss statement by Columbia. OTC’s choice of title it offered was not based on a determination of the true nature of the vehicle, but rather by a strained interpretation of law. OTC’s issue of a junked vehicle title to a vehicle which does not meet that definition was erroneous as a matter of law. ¶17 We next address the interpretation given to 47 O.S.2001 and Supp. 2008, § 1105(O) set out below in relevant part.

The ownership of any unrecovered vehicle which has been declared a total loss by

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an insurer because of theft shall be transferred to the insurer by an unrecoveredtheft vehicle title; … transferred to the insurer by a salvage or an unrecoveredtheft title without the requirement of a visual inspection of the vehicle identification number by the insurer. Upon recovery of the vehicle, the ownership shall be transferred by an original title, salvage title, or junked title, as may be appropriate based upon an estimate of the amount of loss submitted by the insurer.

¶21 Those titles include: Original (B)(1); Salvage (B)(2); Rebuilt (B)(3); Junk (B)(4); Classic (B)(5); Remanufactured (B)(6) and; Unrecovered-theft (B)(7). Since under these facts AAAA is not entitled as a non-insurer to an Unrecovered-theft title, and the vehicle in question does not meet the statutory definition of Junk or Classic, and AAAA is not entitled to an Original title, it stands to reason the only types of title for which this vehicle qualifies is Salvage, Rebuilt, or Remanufactured.

¶18 OTC’s interpretation of this statute led it to conclude it could only issue a junk title and must therefore deny AAAA’s request for a salvage or original title.

¶22 We conclude the ALJ erred as a matter of law in the interpretation of the law, and OTC erred in adopting the findings of the ALJ, and denying AAAA’s request for a title other than that of a junked vehicle. We reverse and remand with directions to OTC to issue an appropriate title consistent with this opinion.

¶19 We disagree. We hold this section only applies to titles issued to an insurer; it does not apply to titles issued to non-insurers. Read in context, this provision (a) requires title to a non-recovered stolen vehicle be given to the insurer only in the form of an unrecovered theft title; (b) waives the requirement of a visual inspection of the VIN before transferring title (obviously because the vehicle is unavailable for inspection) and; (c) requires an insurer, upon recovery of the stolen vehicle, to relinquish the unrecovered theft title and receive instead either an original, a salvage, or a junked title, depending upon the amount of loss incurred by the insurer. We reject the application of § 1105(O) to a non-insurer who has not previously been issued an unrecovered theft title who now seeks a different title. To hold otherwise results in an absurdity wherein, as here, a stolen vehicle is recovered in otherwise good condition, and yet its new bona fide purchaser cannot acquire any title other than a junk title (which in most instances renders the vehicle unmarketable) simply because an insurer who paid the original loss cannot or will not revise its loss statement. ¶20 AAAA sought title pursuant to the provisions of 42 O.S.2001 and Supp. 2008, §§ 91 through 132. Those provisions provide procedures by which a towing company such as AAAA may recover its storage costs by the perfection and foreclosing of its lien. These provisions do not, however, specify the type of title to be given a subsequent bona fide purchaser for value. For guidance, one must refer back to 47 O.S.2001 and Supp. 2008, § 1105, which specifies the seven types of vehicle titles which may be issued by the OTC. 2698

CONCLUSION

¶23 REVERSED AND REMANDED WITH DIRECTIONS. GABBARD, P.J., concurs; RAPP, J., not participating.

2010 OK CIV APP 116 CHRIS COOK, RICHARD BERCHER, TONY NEWSOM AND DERICK PICKARD, individually, and all other similarly situated police officers, Plaintiffs/Appellants/ Counter-Appellees, vs. City of Edmond, Defendant/Appellee/Counter-Appellant.

Case Nos. 107,463; Consol. w/107,469 June 29, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE CAROLYN R. RICKS, TRIAL JUDGE REVERSED AND REMANDED WITH DIRECTIONS James R. Moore, Sue Wycoff, MOORE & VERNIER, P.C., Oklahoma City, Oklahoma, for Appellants Andrew W. Lester, George S. Freedman, LESTER, LOVING & DAVIES, P.C., Edmond, Oklahoma, for Appellee JERRY L. GOODMAN, JUDGE: ¶1 City of Edmond (City) appeals the trial court’s July 28, 2009, final judgment which granted Police Officers’ Chris Cook, Richard Bercher, Tony Newsom, and Derick Pickard

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(collectively “Officers”) Title 40 O.S.2001 and Supp. 2005, § 165.1 et seq. wage claim. Officers also appeal, asserting the trial court applied the incorrect statute of limitation. Based upon our review of the facts and applicable law, we reverse and remand with directions.1 FACTS ¶2 Officers filed a petition on August 11, 2003, asserting a claim for back wages pursuant to Title 40 O.S.2001 and Supp. 2005, § 165.1 et seq. Officers asserted their Collective Bargaining Agreement (CBA) with the City established their standard workweek was 42.5 hours, although the City only compensated them for 40 hours. In February of 2004, the trial court certified the class as all uniformed officers employed with the City after August 11, 1998. ¶3 On June 6, 2005, Officers filed a motion for partial summary judgment on the issue of liability. Officers asserted the CBA required officers to work 42.5 hours a week. Officers contended that in addition to an 8 hour work shift, all officers are required to report to work 15 minutes before the shift starts and to remain on-duty and be available for dispatch for 15 minutes after the shift ends. Although officers are required to be at work and on-duty for 15 minutes before and after the shift, thus working 8.5 hours a day and 42.5 hours a week, supervisors only enter 8 hours a day and 40 hours a week on time sheets. Thus, Officers are not compensated for the additional 2.5 hours they work. ¶4 City responded and filed its own motion for summary judgment on August 31, 2005, which it supplemented on September 2, 2005, and April 7, 2006. City asserted it pays Officers according to the CBA’s terms, which sets forth a “standard work week,” not the “hours of work” for each Officer. City contended §11.2 of the CBA was established to set a threshold for overtime, not a promise to pay additional wages, and was in response to Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).2 City asserted an officer’s hours of work is reduced by his use of personal time, vacation, sick leave, et seq., and officers generally work 35 hours per week, although they are paid for 40 hours. City noted the CBA grants an officer 1.5 hours of personal time each day for lunch and 2 breaks, which it is not obligated to pay, and an officer may utilize this time for personal activities. The only restrictions placed on officers are to remain in city limits, be available to respond Vol. 81 — No. 31 — 11/20/2010

if needed, monitor the radio, remain with their patrol cars, and remain in uniform. With respect to the 15 minutes before and after their shifts, City asserted officers are permitted to attend to the same personal activities as during their breaks. City contends the extra 5 hours of pay a week covers the rare situation when an officer is dispatched during this time.3 ¶5 City further cited the Evans Grievance, asserting the Fraternal Order of Police had agreed in 1993 the CBA did not require payment of 42.5 hours of wages. In 1993, then Fraternal Order of Police President Joe Evans filed a grievance asserting he was not compensated for the 15 minute pre- and post-shift time. The CBA in 1992-1993 had a 40 hour work week and had eliminated provisions requiring the City to provide meal and break periods.4 The Fraternal Order of Police and City ultimately settled the grievance, agreeing the officers were paid correctly. City asserted the parties to the 1993-1994 CBA, which was negotiated while the Evans Grievance was pending, memorialized the parties’ intent that no additional pay would be required in the future. City contends after these negotiations, the parties have operated under the same CBA for ten years without complaint until this suit and that the parties’ conduct in carrying out the CBA establishes the parties’ intent. Finally, City asserted Officers failed to present any evidence to prove they actually worked more than 40 hours per week entitling them to additional pay. ¶6 On September 15, 2005, Officers filed an application to hold the motions for summary judgment in abeyance pending arbitration.

Officers asserted their bargaining agent, the Fraternal Order of Police Lodge 136 (FOP), had filed a contract grievance.5 City objected, asserting the grievance had no impact on the present case, a Title 40 claim, and regardless of how the arbitrator decided the grievance, the trial court would still be required to determine whether Officers actually worked more hours than they were paid and that this was exclusively for the court’s determination. ¶7 The trial court ultimately granted Officer’s motion, holding the summary judgment motions in abeyance pending arbitration. On November 16, 2005, City filed an application to assume original jurisdiction and petition for writ of prohibition with the Oklahoma Supreme Court, requesting the Court order the trial court to proceed with the litigation pending below. The Supreme Court agreed and issued

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the writ, directing the trial court to hear and determine the parties’ cross motions for summary judgment without undue delay. ¶8 On July 7, 2006, later memorialized by order filed on December 7, 2006, the trial court issued a letter denying City’s motion for summary judgment and granting Officer’s motion for partial summary judgment, finding the CBA clearly states the regular work week is 42.5 hours. However, the court found City does not pay Officers for the additional 15 minutes pre- and post-shifts per day required to be on duty in violation of 40 O.S.2001, § 165.9. ¶9 Also on July 7, 2006, the arbitrator issued his ruling, denying the grievance. The arbitrator noted that nothing in the CBA states there is an 8.5 hour work day or a 42.5 hour work week minimum pay guarantee. Rather, “Article 11.2’s only specific time reference is 42.5 hours, Saturday to Saturday, in a clause that does not mention pay.” ¶10 The arbitrator further found the Evans Grievance compelling. When the Evans Grievance arose, FOP understood that before the 1992-1993 Article 11 contract changes, the 15 minutes pre- and post-shift periods were included in the work day and were not compensated; the settlement returned to the pre 1992-1993 language with FOP assurance the dispute was over; and 1993-1994 negotiations retained the settlement language that survives today. ¶11 Finally, the arbitrator stated it was “unnecessary to say if the pre and post 15 minute periods are compensable by themselves or if meal/break times within the shift are paid or deducible. However characterized, the current pay calculation results from an express and established bargain. The Board is obliged to enforce it.” ¶12 Thereafter, City filed a motion to reconsider or in the alternative a motion to certify an interlocutory appeal, asserting the arbitrator was vested with preclusive authority to interpret the CBA and because the CBA formed the only basis for the court’s finding of unpaid work, the court’s decision must be reconsidered. The trial court denied the motion on December 7, 2006. ¶13 On November 29, 2007, City filed a second motion for summary judgment, asserting the trial court lacked subject matter jurisdiction because Officers failed to comply with the Gov2700

ernmental Tort Claims Act (GTCA), 51 O.S.2001, § 151 et seq. The court denied City’s motion. ¶14 On January 7, 2008, Officers filed a second motion for partial summary judgment, requesting prejudgment interest. On January 25, 2008, City filed a motion asserting the statute of limitations was 3 years. The trial court ultimately ruled Officers were entitled to prejudgment interest and the proper statute of limitations was 3 years. ¶15 In June of 2008, City filed an offer of proof. Officers objected, asserting it was inappropriate because there had never been a trial, inter alia. Officers ultimately withdrew their objection. The parties entered into stipulations and final judgment was entered on July 28, 2009. Officers were subsequently awarded an attorney’s fee. Both parties appealed and appeals were consolidated under surviving appeal No. 107,463.

STANDARD OF REVIEW ¶16 Summary judgment is used to reach a final judgment where there is no dispute as to any material fact, and where one party is entitled to judgment as a matter of law. Indiana Nat’l Bank v. Department of Human Servs., 1993 OK 101, ¶ 10, 857 P.2d 53, 59; Sellers v. Oklahoma Pub. Co., 1984 OK 11, ¶ 23, 687 P.2d 116, 120. We review a grant of summary judgment de novo.

Young v. Macy, 2001 OK 4, ¶ 9, 21 P.3d 44, 47. In a de novo review, we have plenary, independent, and nondeferential authority to determine whether the trial court erred in its application of the law. Id. ANALYSIS ¶17 Before addressing the merits of either parties’ propositions of error on appeal, this Court must first address Officers’ assertion City may only appeal the denial of its’ motion to reconsider because City did not file the motion within 10 days of the order granting Officers’ motion for partial summary judgment on the issue of liability. Officers further assert City waived or abandoned appeal of the denial of its motion to reconsider by failing to address it in its brief on appeal. ¶18 City disagrees, asserting the summary judgment ruling was an intermediate, nonfinal order which remained under the trial court’s plenary control until the controversy ended. City notes the issue of damages remained before the court.

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¶19 The July 7, 2006, letter ruling granting Officers’ motion for partial summary judgment, later memorialized by order on December 7, 2006, was addressed solely to the issue of liability. Issues remained pending in the suit.

Thus, the decision did not rise to the level of a judgment pursuant to 12 O.S.2001, § 681. “No judgment may arise from a ruling that disposes of but a portion of an entire claim and leaves unresolved other issues joined by the pleadings.” LCR, Inc. v. Linwood Prop., 1996 OK 73, ¶ 9, 918 P.2d 1388, 1393. Accordingly, City’s appeal is proper. ¶20 The parties assert several propositions of error on appeal. However, one proposition of error has merit and warrants reversal of the trial court’s July 28, 2009, final judgment. ¶21 City contends the trial court did not have the authority to ignore and reject the arbitrator’s decision and supplant its own interpretation of the CBA. Thus, the final judgment must be reversed. ¶22 Officers disagree, and contend this case is a claim for unpaid wages authorized by 40 O.S.2001 and Supp. 2005, § 165.1 et seq., not a breach of contract claim. Officers do assert, however, their claim is based on a “written contract that requires the Officers to be on duty 42.5 hours per week,” i.e., the CBA with City. A copy of the CBA was attached and referred to in their Petition. Officers agree the issue of interpreting the CBA resides with the arbitrator, although they assert the issue of whether City violated Title 40 properly resided with the trial court. ¶23 The Fire and Police Arbitration Act (FPAA), 11 O.S.2001, § 51-101 et seq., requires the “determination of any dispute which may arise involving the interpretation or application of any of the provisions of such agreement or the actions of any of the parties thereunder” be submitted to final and binding arbitration.

See 11 O.S.2001, § 51-111. “ [t]he Fire and Police Arbitration Act, 11 O.S.1991 § 51-101 et seq. provides the statutory authority for collective bargaining agreements between firefighters, police officers and municipalities.” City of Muskogee v. Martin, 1990 OK 70, ¶ 2, 796 P.2d 337, 339 n. 1. Under the Act, “[a]rbitration is the prime vehicle for resolving a dispute concerning the interpretation of a collective bargaining agreement.” Id. at ¶ 5, 796 P.2d at 339.

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[F]or quick resolution of these disputes, the role of the district court is limited to determining whether the dispute is one that is covered by the contract. In the presence of any dispute regarding the interpretation of a collective bargaining agreement, the first remedy lies with the contractually-agreed-upon arbitration, and the district court has no authority to disturb the function of arbitration.

City of Warr Acres v. The Int’l Assoc. of Firefighters, Local No. 2374, 2002 OK CIV APP 124, ¶ 6, 64 P.3d 1118, 1121 (citations omitted). ¶24 The main purpose of arbitration is to prevent court intrusion into the merits of disputes when there is an agreement to arbitrate disputes concerning contract interpretation.

City of Warr Acres, 2002 OK CIV APP 124, at ¶ 6, 64 P.3d at 1121. “The function of the court is generally limited to ascertaining whether the party is making a claim which is governed by the contract when the parties have agreed to submit all questions of contract interpretation to an arbitrator.” Taylor v. Johnson, 1985 OK 69, ¶ 5, 706 P.2d 896, 898. “Any question regarding the application and interpretation of the CBA is subject to arbitration, and the district court is without jurisdiction to usurp this function.” Id. at ¶ 6, 706 P.2d at 898. Arbitration should be allowed unless the court can say with “positive assurance” the dispute is not covered by the arbitration clause. City of Warr Acres, at ¶ 6, 64 P.3d at 1121. “Doubts should be resolved in favor of coverage.” City of Muskogee v. Martin, 1990 OK 70, ¶ 8, 796 P.2d 337, 339-340. ¶25 City and FOP are parties to a CBA. Officers are not a party to the CBA but are beneficiaries of its terms. City of Warr Acres, 2002 OK 124, at ¶ 2, 64 P.3d at 1120. Article 10 sets forth the grievance procedure and incorporates the FPAA’s arbitration requirements. Article 10, Section 10.2 provides a grievance is any dispute on any issue over the “meaning, interpretation, application or alleged violation of the terms and provisions” or “alleged violation of policies and procedures of the Edmond Police Department.” A grievance is subject to the grievance procedure outlined in Article 10, including binding arbitration. Either the FOP or any officer may file a grievance. ¶26 In the present case, the trial court was presented with a Title 40 wage claim which required the court to interpret and apply the CBA. In granting Officers’ motion for partial

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summary judgment, the court clearly interpreted and applied provisions of the CBA, ultimately rendering a decision finding City liable for the additional wages. Pursuant to the CBA and the FPAA, the appropriate remedy lies first with the contractually agreed upon arbitration. Although the trial court has the authority to determine a Title 40 wage claim and whether a dispute is arbitrable, it does not have the authority to determine the “meaning, interpretation, application or alleged violation of the terms and provisions” of the parties’ CBA when the parties have contractually agreed otherwise. The fact Officers filed a claim pursuant to Title 40 does not alter this finding. Any doubt should be resolved in favor of coverage. The trial court did not have authority to usurp the function of arbitration.6 ¶27 Accordingly, once the trial court determined Officers’ Title 40 wage claim involved an interpretation and application of the CBA, the trial court had a duty to submit the dispute to binding arbitration. It erred in failing to do so. The trial court did, however, correctly stay the proceedings upon learning of FOP’s grievance filing and the pending arbitration. ¶28 The trial court further erred in failing to grant City’s motion to reconsider the court’s interlocutory order granting Officer’s motion for partial summary judgment. A grievance was properly filed by FOP, as Officers’ bargaining agent, pursuant to the CBA. FOP did not seek a decision on Officers’ Title 40 claim. After considering the CBA and evidentiary material presented by the FOP and City, the arbitrator denied the grievance. Neither party appealed the arbitrator’s decision. The decision was therefore final and binding on the parties, including Officers. Upon presentation of the arbitrator’s decision to the trial court, the court was obligated to revisit its interlocutory summary adjudication and reconsider whether Officers’ Title 40 wage claim was viable based on the arbitrator’s interpretation of the CBA. CONCLUSION ¶29 Accordingly, the trial court’s July 28, 2009, final judgment is reversed and the matter remanded to the trial court for further proceedings. The trial court is directed to determine whether Officers are entitled to wages pursuant to Title 40 consistent with the arbitrator’s interpretation of the CBA. Because of our resolution of this issue, we need not address the 2702

remaining issues on appeal. However, the parties are free to reassert the issues on remand. ¶30 REVERSED AND REMANDED WITH DIRECTIONS. GABBARD, P.J., concurs; RAPP, J., not participating.

1. City’s Motion to Strike Officers’ Reply Brief is granted.

2. Garcia required state and local governments to comply with the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. In response, Congress enacted several provisions to reduce public employers’ concerns. Title 29 U.S.C. § 207(k), although originally passed in 1974, permitted state and local governments to elect alternative overtime thresholds for police and fire personnel in excess of 40 hours. City asserts § 11’s predecessor, Article 10, § 2, changed the standard work week from 40 to 42.5 hours to take advantage of the exemption and that it was not a promise to pay officers for 42.5 hours of work. See 29 U.S.C. § 207(k).

3. City asserts it pays Officers for 40 hours of work a week. Officers have 1.5 hours of personal time a day x 5 days = 7.5 hours a week.

42.5-7.5 = 35 hours a week. 40 - 35 = 5 hours extra pay a week.

4. The 1992-1993 CBA was the only contract year since 1987 that contained a “standard work week” other than the 42.5 hours at issue in the present case. As a result, the Evans Grievance sought not only regular pay for the 2.5 hours but also overtime because the CBA did not include the § 207(k) election.

5. The FOP filed the grievance on September 14, 2005, asserting City breached Article 11 of the CBA by failing to pay officers for all compensable work-time contrary to the CBA’s plain language.

6. Title 40 O.S.2001 and Supp. 2005, § 165.1 et seq. merely provides a procedural mechanism for employees to seek redress when an employer fails to pay wages for work actually performed. It does not provide a substantive right to wages in addition to those provided in an agreement, such as the CBA, between an employee and employer.

See Reynolds v. Advanced Alarms, Inc., 2009 OK 97, — 3.d —; 40 O.S.2001 and Supp. 2005, § 165.1 et seq.

2010 OK CIV APP 117 CHOICES INSTITUTE, Plaintiff/Appellant, vs. OKLAHOMA HEALTH CARE AUTHORITY AND MIKE FOGARTY, IN HIS CAPACITY OF CHIEF EXECUTIVE OFFICER OF THE OKLAHOMA HEALTH CARE AUTHORITY, Defendant/Appellee.

Case No. 107,533. September 24, 2010 APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY, OKLAHOMA HONORABLE RONALD G. FRANKLIN, JUDGE REVERSED AND REMANDED Tom Q. Ferguson, James R. Bullard, DOERNER, SAUNDERS, DANIEL & ANDERSON, L.L.P., Oklahoma City, Oklahoma, for Plaintiff/Appellant, Christopher J. Bergin, Heather M. Poole, OKLAHOMA HEALTH CARE AUTHORITY, Oklahoma City, Oklahoma, for Defendant/ Appellee.

BAY MITCHELL, JUDGE:

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¶1 This is an appeal by Choices Institute (Institute) from an order of the district court dismissing Institute’s appeal from a decision of the Administrator of the Oklahoma Health Care Authority (OHCA).1 OHCA sought dismissal on the basis of Institute’s failure to have summons issued and failure to file proof of service within ten (10) days which, OHCA claims, violates §318(C) of the Administrative Procedures Act, 75 O.S. 2001 §250 et seq. After oral argument, the trial court announced it “had no jurisdiction to hear the appeal” due to these alleged deficiencies and granted OHCA’s Motion to Dismiss. Institute’s motion to reconsider was denied. Upon review of the matter, we reverse and remand. ¶2 The granting of a 12 O.S. §2012(B) motion to dismiss is reviewed de novo. Indiana Nat’l Bank v. Dep’t of Human Services, 1994 OK 98, ¶2, 880 P.2d 371, 375. The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts. Darrow v.

Integris Health, Inc., 2008 OK 1, ¶7, 176 P.3d 1204, 1208. To the extent these are jurisdictional issues, the standard of review is no different.

MLC Mortgage Corp., v. Sun America Mortgage Co., 2009 OK 37, ¶6, 212 P.3d 1199, 1202 (jurisdictional issues present questions of law, reviewable de novo). ¶3 This case arises from an administrative proceeding brought by Institute2 before OHCA to protest OHCA’s audit findings and OHCA’s decision directing Institute to reimburse OHCA for medicaid overpayments. After several administrative appeals within the agency, OHCA issued its final agency order on April 30, 2009 directing Institute to reimburse OHCA the amount of $53,666. Institute timely filed a Petition initiating its appeal to the district court on May 29, 2009.3 Institute served the Petition by certified mail on OHCA’s General Counsel on June 3, 2009 and OHCA’s CEO on June 8th.

An Affidavit of Service with attached certified mail return receipts was filed on June 10, 2009.

Institute did not have summons issued or served with the Petition.4 ¶4 OHCA filed its Motion to Dismiss on June 15, 2009. It contends dismissal was required due to Institute’s failure to comply with statutory jurisdictional prerequisites of 75 O.S. §318(B and C), which provide as follows: B. (2) ... proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party Vol. 81 — No. 31 — 11/20/2010

seeking review resides or at the option of such party where the property interest affected is situated, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title.

C. Copies of the petition shall be served upon the agency and all other parties of record, and proof of such service shall be filed in the court within ten (10) days after the filing of the petition. The court, in its discretion, may permit other interested persons to intervene.

Id. (emphasis added). Specifically, OHCA contends Institute failed to comply with §318 in two respects: (1) it failed to have summons issued and served with the Petition within ten days; and (2) it failed to file proof of service within ten days. OHCA interprets the language of §318, particularly the term “service,” as impliedly including the service of summons requirement generally applicable in district court actions per 12 O.S. §2004. ¶5 OHCA strenuously argues, and cites several authorities in support, that the procedural requirements for an appeal under the Administrative Procedures Act are mandatory and must be strictly complied with for the district court to have jurisdiction for its review. See, Conoco, Inc. v. State Dep’t of Health, 1982 OK 94, 651 P.2d 125; and State ex rel. Okla. Employment Security Comm’n v. Emergency Physicians, Inc., 1981 OK 82, 631 P.2d 743 (timely filing of appeal is jurisdictional); Edmondson v. Siegfried Ins. Agency, Inc., 1978 OK 45, 577 P.2d 72; H & EN, Inc. v. Okla. Dep’t of Labor, 2006 OK CIV APP 70, 136 P.3d 1070; and Oklahoma Found. for Medical Quality v. Dep’t of Central Services, 2008 OK CIV APP 30, 180 P.3d 1 (naming/joining necessary parties is jurisdictional). ¶6 It is clear that timely service of the petition is mandatory. §318(C)(“Copies of the petition shall be served upon the agency and all other parties of record...”); See also Oklahoma Found. for Medical Quality, ¶17, 180 P.3d at 2, 5; Transwestern Publishing, L.L.C. v. Langdon, 2004 OK CIV APP 21, 84 P.3d 804, 805-06; H & EN, Inc. v. Okla. Dep’t of Labor, ¶¶10-14, 136 P.3d at 1072. However, OHCA cites no authority, nor do we find any, holding that an appeal to the district court from an administrative agency pursuant to 75 O.S. §318 requires the issuance and service of summons.

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¶7 While §318 the Administrative Procedures Act expressly requires timely filing and service of the petition to perfect an administrative appeal, it is silent as to any summons requirement.5 Had the legislature intended to require a summons in perfecting an administrative appeal pursuant to §318, it seems likely the statute would so provide. See, e.g., 12 O.S. §1033 (providing “a summons shall issue and be served” with the filing of a petition to vacate a judgment, decree or appealable order if more than thirty days after its filing). Paragraphs B and C of §318 are clear, specific and unambiguous.6 We see no reason to read into §318 a requirement for the issuance and service of summons when no reason for such has been articulated and it would serve no useful purpose that we can discern. OHCA insists that §318 be strictly complied with and this Court agrees. The Administrative Procedures Act, with its plain and unambiguous express terms, does not contain a summons requirement and the trial court erred in imposing one. ¶8 OHCA’s second ground for dismissal was that Institute failed to file proof of service within ten days as required by §318(C). As noted above, the Petition was filed on Friday, May 29, 2009 and Institute’s Affidavit of Service was filed on Wednesday, June 10, 2009.

The ten days following May 29, 2009 included two weekends (four weekend days). OHCA construes this ten-day deadline calculation to include the weekend days. Thus, if weekend days are to be counted, the deadline fell on Monday, June 8, 2009. If weekend days are not to be counted, the deadline was Friday, June 12th. ¶9 Including weekend days in the ten-day deadline calculation deprives appellants in administrative appeals the benefit of the common-sense rule applicable to civil proceedings generally, codified at 12 O.S. 2001 §2006(A)(1), which provides: Except for the times provided in Sections 765, 990.3, 1148.4, 1148.5, 1148.5A, and 1756 of this title, when the period of time prescribed or allowed is less than eleven (11) days, intermediate legal holidays and any other day when the office of the court clerk does not remain open for public business until the regularly scheduled closing time, shall be excluded from the computation.7 ¶10 Although Appellants in administrative appeals are held to strictly comply with the statutory procedural requirements, there is no 2704

answer in the Administrative Procedures Act for whether the intermediate weekends or holidays should be counted in computing the ten-day deadline set forth in §318(C). Determining how this ten-day deadline is to be computed requires construction. Accordingly, it is appropriate to look for guidance where this issue has been addressed outside the Administrative Procedures Act. Title 12 O.S. §2006(A)(1) specifically addresses this short-deadline computation question, and applies to civil cases generally.8 This statute serves a practical purpose and was possibly enacted in recognition of the fact that with a deadline as short as ten days it might occasionally be impossible for even the most diligent litigant to complete his procedural requirements in such brief time. In the instant case, if it does not apply, Institute would have had only six business days to find the parties it must serve, have them served and then file proof of service to meet the deadline for perfecting its appeal. It is doubtful that the Legislature intended such an onerous construction. Accordingly, we hold that the computation method in 12 O.S. §2006(A)(1) applies to the ten-day deadline in 75 O.S. §318(C). ¶11 This Court concludes that Institute complied with §318(C) in its timely filing and service of its Petition and the timely filing of its proof of service.9 Given Institute’s strict compliance with the mandatory procedural requirements for initiating an appeal under the Administrative Procedures Act, the trial court had jurisdiction over the appeal and it erred in granting OHCA’s motion to dismiss. ¶12 REVERSED AND REMANDED. JOPLIN, P.J., and BELL, V.C.J., concur.

1. An appeal from a decision of the Administrator of the Oklahoma Health Care Authority to the district court is authorized by 63 O.S. 2001 §5052.

2. Institute is a behavioral health services provider under contract with OHCA to provide services to SoonerCare members. OHCA administers the state Medicaid program.

3. Title 63 O.S. 2001 §5052 provides in pertinent part: C. ... The decision of the Administrator may be appealed to the district court ... within thirty (30) days of the date of the decision of the Administrator as provided by the provisions of subsection D of this section.

D. Any applicant or recipient under this title who is aggrieved by a decision of the Administrator rendered pursuant to this section may petition the district court ... pursuant to the provisions of Sections 318 through 323 of Title 75 of the Oklahoma Statutes. A copy of the petition shall be served by mail upon the general counsel of the Authority.

Title 75 O.S. 2001 §318(B)(2) provides in pertinent part: (P)roceedings for review shall be instituted by filing a petition, in the district court ... within thirty (30) days after the appellant is notified of the final agency order... .

Title 12 O.S. 2001 §951(b) also provides that appeals to the district court from “any tribunal, board or officer exercising judicial junctions” shall

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be commenced by filing a petition within thirty days of the date the order appealed was mailed to the appellant.

4. Later, Institute did have summons issued (on June 16, 2009), after OHCA filed its Motion to Dismiss.

5. In that district court appeals to the Oklahoma Supreme Court do not require a summons, having a summons requirement in an appellate procedure would be an exception to usual procedure.

6. Only where the legislative intent cannot be determined from the statutory language due to ambiguity or conflict, should the rules of statutory construction be employed. Keating v. Edmondson, 2001 OK 110, ¶8, 37 P.3d 882, 886. However, “[w]here the language of a statute is clear and unambiguous, the language will be given its plain meaning.” Humphries v. Lewis, 2003 OK 12, ¶7, 67 P.3d 333, 335.

7. This language was enacted in 1999.

8. Where two statutes may be construed to apply to the same subject matter, one specific and one general, the specific statute controls.

Phillips v. Hedges, 2005 OK 77, ¶12, 124 P.3d 227, 231; Pickett v. Dep’t of Human Services, 1996 OK CIV APP 142, ¶6, 932 P.2d 543, 545.

9. Regarding the §318(C) requirement that proof of service be filed within ten days, we need not address what specifically must be filed to satisfy that requirement, and whether all or any part of that requirement is jurisdictional.

2010 OK CIV APP 118 MARILYN SUE GOFF, Plaintiff/Appellant, vs. SALAZAR ROOFING & CONSTRUCTION, INC., an Oklahoma Corporation, and ROBERT MAULPIN, individually, a/k/a ROBERT MAUPIN, Defendants/Appellees, and SALAZAR ROOFING & CONSTRUCTION USA, INC., an Oklahoma Corporation; and/or a/k/a and/ or d/b/a SALAZAR ROOFING CORPORATION, an Oklahoma Corporation; and/or a/k/a and/or d/b/a SALAZAR CONTRACTING, INC., an Oklahoma Corporation, Defendants.

Case No. 107,722. September 24, 2010 APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, OKLAHOMA HONORABLE EDWARD C. CUNNINGHAM, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART Michael L. Velez, MICHAEL L. VELEZ, LLC, Oklahoma City, Oklahoma, and Jacque Bergman-Pearsall, JACQUE PEARSALL, P.L.L.C, Oklahoma City, Oklahoma, for Appellant Warner E. Lovell, Oklahoma City, Oklahoma, for Appellees JERRY L. GOODMAN, JUDGE: ¶1 Marilyn Sue Goff (Goff) appeals the trial court’s October 7, 2009, order granting Salazar Roofing & Construction, Inc. (Salazar) and Robert Maupin’s (Maupin) (collectively “Appellees”) motion for summary judgment.1 Goff further appeals a December 4, 2009, order awarding Appellees an attorney’s fee and costs in the amount of $15,755.09. Based upon our Vol. 81 — No. 31 — 11/20/2010

review of the facts and applicable law, we affirm in part and reverse in part.

FACTS ¶2 In September of 2008, Salazar hired Goff, purportedly by its agent or employee Maupin, to work in its Norman satellite office as a secretary. Goff and Maupin were the only employees located in the Norman office. After working in the office for several weeks, an incident occurred between Goff and Maupin on November 6, 2008, resulting in Goff’s employment ending with Salazar. The parties dispute whether Goff was terminated. Goff filed suit against Appellees pursuant to the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12111 et seq.2 She further asserted claims for assault, negligent hiring, training, and supervision of Maupin, and intentional infliction of emotional distress. ¶3 Goff alleged that after her employment with Salazar began, Maupin started acting in an increasingly intimidating, demeaning, and erratic manner towards her, saying things like “What’s up dog?” or “What’s up, girl dog.”

Goff noted she is diabetic, she has to eat at regular intervals throughout the day, and that Maupin demeaned and humiliated her about eating and the smell of her food, stating “God that stinks. What is that? Man that stinks.”3 On one occasion, Goff, her husband, and her grandson were eating fried chicken in the office. Maupin came in and said “What’s that smell? It stinks. What stinks?” Goff admitted no one prevented her from eating multiple times throughout the day, although she tried to eat when Maupin was out of the office. ¶4 On the morning of November 6, 2008, Maupin arrived at the office and said, “What’s up, girl dog.” Goff did not respond. After a while Maupin asked Goff if she was okay. A few minutes later, Maupin stated “Look, why don’t you just take the rest of the day off? Just go home. Just get the f*** out and don’t come back.” Goff was stunned. Maupin continued, “Look, I don’t have to take your shit, I don’t have to take your attitude. You’re not going to treat me like this and get away with it. I got you this job.” Maupin then drew his left fist back and Goff stepped back around the desk, twisting her back, causing immediate pain.

Goff did not fall down, bump, or hit anything.

In addition, Maupin did not hit or otherwise touch Goff. Maupin left the office.

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¶5 Goff contacted the Norman office and told them Maupin had fired her. Goff also contacted her husband and told him the events of the morning. Goff called the Norman office again and spoke with another person, whom she also told Maupin had fired her. Maupin then returned to the office and asked her again if she was okay. Goff informed Maupin she was not okay. Maupin asked her to stay and explained he had been upset earlier because of a client who refused to pay. Goff was thrilled because she thought she had her job back. Maupin left again. Goff contacted the Norman office and informed them she had been rehired. When Maupin returned, he and Goff’s husband had a verbal altercation in the parking lot over Goff and Maupin’s earlier quarrel. Goff gathered up her belongings and left, subsequently filing suit against Appellees. ¶6 On April 1, 2009, Appellees filed a motion for summary judgment or in the alternative a motion to dismiss, asserting, inter alia, that Goff had failed to allege a disability under the ADA or that her impairment was the basis or cause of her injury or damages. Goff filed a response on April 16, 2009, asserting material questions of facts remained precluding summary judgment. Goff contended a rational juror could find she has a disability, i.e., her complications from diabetes cause her to be disabled under the ADA, and Salazar discriminated against her when it terminated her employment. Goff requested the court hold its ruling in abeyance pending additional discovery. ¶7 After discovery was completed, Appellees filed a motion to dismiss for lack of jurisdiction and a renewed motion for summary judgment on August 13, 2009. Appellees asserted Goff’s suit falls within the purview of the workers’ compensation laws, more specifically 85 O. S.2001 and Supp. 2006, § 11, because Goff alleged she sustained an injury to her back at work. In addition, Appellees asserted none of the exceptions in § 11(A) applied and thus, Goff was not entitled to seek relief in district court. ¶8 With respect to its summary judgment motion, Appellees again asserted Goff could not prove a disability under the ADA or that her physical impairment formed the basis which she claims caused her injury or damages. Appellees noted Goff alleged her diabetes caused her to have a disability in the nature of having to eat at regular intervals and having pain in her feet and legs when required to 2706

stand for prolonged periods of time. However, Goff testified in her deposition that Appellees permitted her to bring food to work and that no one prevented her from eating on the job. In addition, Goff testified her job as a secretary allowed her to sit to fulfill her duties. Moreover, Goff never described the events leading up to the purported termination on November 6 to include her alleged disability as a cause or factor. ¶9 Goff filed a response on August 31, 2009, asserting a question of fact existed as to whether an exception existed under § 11(A). With respect to her ADA claim, Goff again asserted a material question of fact existed as to whether her diabetes was a disability and whether Appellees discriminated against her on the basis of this disability. Thus, Goff asserted summary judgment was inappropriate. ¶10 By order dated October 7, 2009, the trial court granted Appellees’ motion to dismiss for lack of jurisdiction “[s]ubject to [Goff’s] right to file a claim in the Workers’ Compensation Court… . [I]n the event that the Workers’ Compensation Court … does not accept jurisdiction of [Goff’s] claim pertaining to her alleged injuries of November 6, 2008 and following, [Goff] shall be entitled to revive her claim for assault and intentional infliction of emotional distress in this Court.” The court further granted Appellees’ motion for summary judgment on Goff’s cause of action for a violation of the ADA “[f]or the reason that the facts of this case when given the weight most favorable to [Goff] does not bring [Goff’s] claim against [Appellees] within the scope of the [ADA] of 1990. The Court finds [Goff] was either not disabled and/or did not suffer any adverse employment action as defined by the [ADA] of 1990.” The trial court subsequently entered an order awarding Appellees’ an attorney’s fee and costs in the amount of $15,755.09. Goff appeals.

STANDARD OF REVIEW ¶11 We review the award of summary judgment de novo, giving no deference to the trial court’s legal rulings. Copeland v. Lodge Enters., Inc., 2000 OK 36, ¶ 8 fn. 11, 4 P.3d 695, 699 fn.11.

Summary judgment is only appropriate when the pleadings, affidavits, depositions, admissions and other evidentiary materials establish there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Id. at ¶ 8, 4 P.3d at 699.

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ANALYSIS ¶12 On appeal, Goff contends the trial court erred in granting Appellees’ summary judgment on her ADA claim because the issue of whether she has a disability and whether Appellees discriminated against her based on this disability is a question of fact to be decided by the trier of fact.4 I. Americans With Disabilities Act ¶13 A plaintiff alleging employment discrimination under the ADA bears the initial burden of establishing a prima facie case. Cody v.

County of Nassau, 577 F.Supp.2d. 623, 637 (E.D.N.Y. 2008). To establish a claim under the ADA, Goff must establish the following: 1) she is a disabled person within the meaning of the ADA; 2) she is qualified to perform the essential functions of the job with or without a reasonable accommodation;5 and 3) she suffered an adverse employment action because of her disability. Id., see also Diaz Rivera v. BrowningFerris Indus. of Puerto Rico, Inc., 626 F.Supp.2d.

244, 254 (D.P.R. 2009); Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir. 2000). ¶14 If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to offer a legitimate, non-discriminatory reason for its actions. Cody, 577 F.Supp.2d.

623, 637 (citations omitted). The employer merely needs to explain what it has done. Id. (citations omitted). “Should the employer satisfy its burden, the analysis is complete and ‘the presumption [of discrimination], having fulfilled its role of forcing the defendant to come forward with some [non-discriminatory] response, simply drops out of the picture.’” Id. (citations omitted). The “ultimate burden” resides with the plaintiff, who must prove “the employer’s proffered reason is merely a pretext for its intentional discrimination.” Id. (citations omitted).

“If the plaintiff cannot prove intentional discrimination motivated by [her] disability, then the defendant is entitled to summary judgment.” Id. (citations omitted).

A. Disability ¶15 “The sine qua non requirement for ADA protection is whether the individual has a ‘disability’ as defined by the ADA.” Diaz Rivera v.

Browning-Ferris Indus. of Puerto Rico, 626 F.Supp.2d. 244, 254 (citing Castro-Medina v.

Procter & Gamble Comm. Co., 565 F.Supp.2d 343, 358 (D.P.R. 2008)). The statute’s definition of Vol. 81 — No. 31 — 11/20/2010

“disability” includes: “(A) a physical or mental impairment which substantially limits one or more of an individual’s major life activities; (B) a record of such impairment; or (C) being regarded as having such an impairment.”6 See 42 U.S.C. § 12102(2); 29 C.F.R. § 1630(2)(g).

Major life activities are those activities of central importance to life. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)(Overturned by Legislative Action in Pub.L. 110-325 (2009)). “Major life activities include functions such as caring for one’s self, performing manual tasks, walking, seeing, standing, hearing, speaking, breathing, learning, and working.

Walton v. U.S. Marshals Serv., 492 F.3d 991, 1010 (9th Cir. 2007) (quoting Bragdon v. Abbott, 524 U.S. 624, 638)); see also 29 C.F.R. § 1630.2(i). ¶16 Furthermore, “to constitute a disability, an impairment must not merely affect a major life activity, it must ‘substantially limit’ that activity.” Cody, 577 F.Supp.2d. 623, 639 (citations omitted). To be substantially limiting, an impairment must cause a person to be “unable to perform a major life activity that an average person in the general population can perform,” or to be significantly restricted as to the condition, manner, or duration under which the average person in the general population can perform that major life activity. 29 C.F.R. § 1630.2(j); Ramirez v. Salvation Army, 2008 WL 670153 (N.D. Cal. 2008). ¶17 In the present case, Goff asserts her diabetes substantially limits one (1) or more of her major life activities, including eating, seeing, working, and walking. Whether an individual’s diabetes constitutes a disability under the ADA is an individualized inquiry.7 ¶18 We find Goff has raised a genuine issue of material fact as to whether her diabetes substantially limits one (1) or more of her major life activities. Goff asserts she is required to eat several small snacks during the day in addition to three (3) regular meals; she has to constantly monitor her blood sugar levels; she is required to take medication to maintain her blood sugar levels; her diabetes is so severe it has resulted in neuropathy in her feet; she suffers from numbness or tingling in her feet and has fallen; her mobility is limited; and she can become weak and dizzy without warning. Based on this evidence, we find a jury could conclude Goff has a physical impairment which substantially limits one (1) or more of her major life activities and thus, she is a disabled person under the ADA. Therefore, the trial court erred

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in granting Appellees’ motion for summary judgment on this ground.

B. Adverse Employment Action8 ¶19 Goff did not, however, present sufficient evidence to establish the third element of her prima facie case, i.e., that she suffered an adverse employment action because of her disability.

Although Goff presented evidentiary material that Maupin harassed, demeaned, or intimidated her about eating and complained about the smell of her food, she presented no evidence that she was terminated because of it.

Goff testified that on the morning of November 6, 2008, Maupin arrived at the office, said “What’s up, girl dog,” and then asked her if she was okay. Maupin subsequently stated “Look, why don’t you just take the rest of the day off? Just go home. Just get the f*** out and don’t come back.” Goff was stunned. Maupin continued, “Look, I don’t have to take your shit, I don’t have to take your attitude. You’re not going to treat me like this and get away with it. I got you this job.” Maupin then drew his left fist back and Goff stepped back around the desk, twisting her back, causing immediate pain. Goff did not fall down, bump, or hit anything. In addition, Maupin did not hit or otherwise touch Goff. Maupin later returned to the office and asked Goff to stay, explaining he had been upset because a client refused to pay. Goff testified she was thrilled because she thought she had her job back. Maupin left the office again and when he returned, Maupin and Goff’s husband quarreled in the parking lot, at which time Goff gathered up her belongings and left. ¶20 Based on the record before the court, there is no evidence Goff was terminated because of a disability. Although there is evidence in the record Maupin did not care for the smell of Goff’s food and had previously commented on it, there is absolutely no evidence in the record that this had anything to do with the events of November 6, 2008. Rather, the evidence provides that on the day in question, Maupin was irritable when he entered the office and that he and Goff had a heated, verbal altercation that ended with Goff leaving Salazar’s employment. There is no indication Goff was eating when the altercation occurred or that her disability had anything to do with the adverse employment action. Consequently, Goff has failed to establish the third element of her ADA claim and the trial court correctly entered summary judgment for Appellees. The 2708

trial court’s order granting Appellees summary judgment is therefore affirmed in accordance with this opinion.

II. An Attorney’s Fee and Costs ¶21 Goff further appeals the trial court’s December 4, 2009, order awarding Appellees an attorney’s fee and costs in the amount of $15,755.09. ¶22 On October 7, 2009, Appellees sought an attorney’s fee and costs pursuant to the ADA. The ADA provides a trial court may, in its discretion, allow a reasonable attorney’s fee and costs to a prevailing party. See 42 U.S.C. § 12205. This language is analogous to a provision governing an attorney’s fee in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). Thus, courts have applied the same standard to both Acts. See Parker v. Sony Pictures Ent., Inc., 260 F.3d 100, 111 (2nd Cir. 2001)(citing Bercovitch v.

Baldwin Sch., Inc., 191 F.3d 8, 10-11 (1st Cir. 1999); Bruce v. City of Gainesville, 177 F.3d 949, 951 (11th Cir. 1999)). With respect to a prevailing defendant, a fee should only be awarded when a plaintiff’s “claim was frivolous, unreasonable, or groundless, or ... the plaintiff continued to litigate after it clearly became so.” Id. (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). This standard is necessary to avoid the chilling effect such fees could have upon a plaintiff’s commencement of ADA claims. Palmer v. Chelsea Fin. Ptnshp., LP, 423 F.Supp.2d 1092, 1093 (E.D.Cal.2006). ¶23 A trial court’s decision granting or denying fees and costs will be reversed when it abuses its discretion. See American Fed’n of State, County, and Mun. Employees, AFL CIO (AFSCME) v. County of Nassau, 96 F.3d 644, 650 (2nd Cir. 1996). We find such an abuse here. ¶24 In the present case, the trial court did not make the requisite finding that Goff’s claim was frivolous, unreasonable, or groundless, or that Goff continued to litigate after it clearly became so, thereby entitling Appellees to fees and costs. Accordingly, the trial court’s December 14, 2009, order granting Appellees an attorney’s fee and costs pursuant to the ADA is reversed. ¶25 AFFIRMED IN PART, REVERSED IN PART. GABBARD, P.J., concurs; RAPP, J., not participating.

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1. In the trial court’s October 7, 2009, order granting Appellees summary judgment the court noted the following parties had been dismissed without prejudice: Salazar Roofing & Construction, USA, Inc., Salazar Roofing Corporation, and Salazar Contracting, Inc. 2. The ADA Amendments Act of 2008 (ADAAA), Pub.L.No. 110325, 122 Stat. 3553 (2008), applies to employment decisions made on or after January 1, 2009. The ADAAA reverses two seminal Supreme Court cases, Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), and Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). Because the employment action Goff complains of occurred prior to January 1, 2009, the ADAAA is not applicable and Toyota Motor Mfg. and Sutton are still applicable.

3. Goff was diagnosed with diabetes in October of 1996.

4. Goff did not appeal the trial court’s order granting Appellees’ motion to dismiss for lack of jurisdiction on her remaining claims.

5. Neither party has contested this element of the ADA claim.

6. Goff has not alleged she has a record of an impairment or that Appellees regarded her as disabled. In fact, on page 7 of Goff’s Response to Appellees’ First Motion for Summary Judgment or in the Alternative, Motion to Dismiss, Goff contended her diabetes was a disability under subsection (A) only. As a result, this Court will only address subsection (A).

7. Diabetes by itself does not constitute a disability under the ADA unless it impairs an individual’s ability to work or engage in other major life activities. Diaz Rivera, 626 F.Supp.2d. 244, 254 fn. 9 (D.P.R. 2009) (citing Scheerer v. Potter, 443 F.3d 916, 919 (7th Cir. 2006)(“[D]iabetic status, per se, does not qualify a plaintiff as disabled under the ADA.”)).

8. As previously noted, neither party contested the second element of the ADA claim, i.e., that Goff was qualified to perform the essential functions of the job with or without a reasonable accommodation.

2010 OK CIV APP 119 DEBBIE WHEAT, Plaintiff/Appellant, vs.

STATE OF OKLAHOMA ex rel. TULSA COUNTY DISTRICT ATTORNEY, Defendant/Appellee.

Case No. 107,728. June 30, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE DAMAN CANTRELL, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS N. Kay Bridger-Riley, BRIDGER-RILEY & ASSOCIATES, Tulsa, Oklahoma, for Plaintiff/ Appellant W. Kirk Turner, NEWTON, O’CONNOR, TURNER & KETCHUM, Tulsa, Oklahoma, for Defendant/Appellee DOUG GABBARD II, PRESIDING JUDGE: ¶1 Plaintiff, Debbie Wheat, appeals the trial court’s dismissal of her age discrimination lawsuit against Defendant, State of Oklahoma ex rel. Tulsa County District Attorney (State). We reverse and remand for further proceedings.

FACTS ¶2 Wheat was employed by the Tulsa County District Attorney’s office (TCDA), a state agency.

TCDA terminated her employment on May 14, Vol. 81 — No. 31 — 11/20/2010

2003. Wheat asserted she was first told her services were no longer needed, and was later told she was being let go because of budget cuts. ¶3 Wheat asserted she had been replaced “by a less qualified younger male,” and attempted to pursue a tort claim for age discrimination under the Oklahoma Governmental Tort Claims Act (GTCA). Her attorney mistakenly sent notice of her claim to Tulsa County rather than to State as required by the GTCA. Notice was received by a TCDA assistant district attorney, because TCDA was responsible for giving legal advice to Tulsa County. ¶4 Wheat later sued TCDA for age discrimination, initially under federal and state antidiscrimination statutes. Later, she asserted her claim was a common law public policy tort based on Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24.1 State filed a motion for summary judgment, based on Wheat’s failure to give proper notice. The trial court granted the motion, and Wheat appealed. ¶5 In 2007, another division of this Court reversed and remanded. In Appeal No. 103,599,2 COCA Division II held that the notice given to the TCDA assistant district attorney amounted to actual notice to State and substantially complied with the GTCA. ¶6 On remand, Wheat filed an amended petition, asserting two claims: “unlawful termination in violation of Oklahoma public policy,” referring to 25 O.S.2001 § 13023 of Oklahoma’s anti-discrimination statutes, 25 O.S.2001 & Supp. 2009 §§ 1101 through 1901, and “unlawful termination in violation of Oklahoma public policy and the policies and procedures for state employees,” referring to the State Government Reduction-In-Force and Severance Benefits Act, 74 O.S.2001 & Supp. 2009 §§ 8402.27A, et seq. (RIF Act), which is part of the Oklahoma Personnel Act (OPA), 74 O.S.2001 & Supp. 2009 §§ 840-1.1 et seq.4 ¶7 State filed a motion to dismiss, asserting Wheat had failed to state a cognizable Burk claim because (1) she was not an at-will employee; and (2) she had the same, adequate statutory remedy as the entire class of victims of discrimination in state employment. Both parties filed numerous briefs, focusing on the effect of recent Supreme Court decisions dealing with the requirements of Burk. ¶8 The trial court granted State’s motion to dismiss. While the court disagreed with State’s

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argument that Wheat was not an at-will employee, it found that the OPA created a “class of State employees that is distinct from the broader class of all Oklahoma employees” and that this class had “the same remedies under the OPA for alleged violations of the State RIF Act and for alleged discrimination in State employment on the basis of race, color, religion, sex, national origin, age, and handicap.” Therefore, the court concluded, because Wheat had access to the same remedies as other victims of alleged RIF Act violations and State employment discrimination, she failed to state a legally cognizable Burk tort claim. ¶9 Wheat appeals.

STANDARD OF REVIEW ¶10 Motions to dismiss should not be granted “for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief.” Frazier v. Bryan Mem. Hosp. Auth., 1989 OK 73, ¶ 13, 775 P.2d 281, 287 (emphasis in original; footnote omitted).

ANALYSIS ¶11 In general, “[a] viable Burk claim must allege (1) an actual or constructive discharge (2) of an at-will employee (3) in significant part for a reason that violates an Oklahoma public policy goal (4) that is found in Oklahoma’s constitutional, statutory, or decisional law or in a federal constitutional provision that prescribes a norm of conduct for Oklahoma, and (5) no statutory remedy exists that is adequate to protect the Oklahoma policy goal.”5 Vasek v.

Bd. of County Comm’rs, 2008 OK 35, ¶ 14, 186 P.3d 928, 932. In such cases, the employer commits “a tortious breach of contractual obligations, compensable in damages.” Tate v. Browning-Ferris, Inc., 1992 OK 72, ¶ 9, 833 P.2d 1218, 1225 (emphasis and footnote omitted).

1. The “at-will” requirement ¶12 The trial court correctly concluded that Wheat met the requirement of being an at-will employee. “At-will employment means the master may hire or discharge at will and the servant may work or refuse to work at will. The at-will employment doctrine applies to employment contracts that have no definite duration and recognizes that either the master or servant may end the employment at will.” Glasco v. State ex rel. Okla. Dep’t of Corr., 2008 OK 65, n. 9, 188 2710

P.3d 177. Simply put, Oklahoma “defines an employee-at-will as one who is hired for a period of indefinite duration.” Dixon v. Bhuiyan, 2000 OK 56, ¶ 8, 10 P.3d 888, 891 (emphasis in the original; footnote omitted). ¶13 Wheat’s status fits the standard definition of an at-will employee. She did not agree to a contract or otherwise obligate herself to work for a certain period of time. Also, her employer, TCDA, did not obligate itself to employ her for a definite duration. Wheat’s employment status is clearly different than that of the plaintiff in Dixon, who was hired one semester at a time, and, thus, was not an at-will employee.6 Wheat was clearly hired for an indefinite period, and was an at-will employee. ¶14 However, in the trial court, State asserted that the RIF Act guarantees employees like Wheat “a minimum period of fixed employment of at least 60 days in duration by requiring the employer to provide at least 60 days advance notice of a discharge due to a reduction in force.” Therefore, State concluded that Wheat “could not as a matter of law be terminated at any time at the will of TCDA,” and was not an at-will employee. State argued that an at-will employee should be defined as one with respect to whom an employer enjoys “an unfettered right . . . to discharge . . . without notice . . . without incurring liability,” and because TCDA had to give notice, Wheat was not at-will.7 ¶15 We disagree. Oklahoma law focuses on whether an employee is hired for an indefinite period, not whether the employee has to be given advance notice of termination. Here, while the RIF Act required 60 days’ notice of termination, it did not limit TCDA’s right to terminate Wheat at any time. Wheat’s employment had no definite duration, and there is no indication the statute intended to alter the atwill status of the employees covered by it. ¶16 Alternatively, State relied on the often repeated language in Burk that, in an at-will relationship, an employer may discharge an employee for good cause, no cause, or even morally wrong cause. 1989 OK 22 at ¶ 5, 770 P.2d at 26. State argued that because a section of the OPA, 74 O.S.2001 § 840-2.9, forbids firing a State employee for certain discriminatory reasons, Wheat cannot be discharged for any reason, and, thus, is not an at-will employee. ¶17 The fact that Oklahoma law gives every employee, whether in government or the private sector, basic anti-discrimination rights

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does not change the at-will doctrine. Burk itself recognizes these rights, and states that they are simply a statutory exception to the at-will doctrine. Id. at ¶ 6 and n. 4, 770 P.2d at 26. To hold otherwise would effectively abolish the at-will doctrine in Oklahoma. Thus, the trial court properly concluded that Wheat was an at-will employee for purposes of the first requirement of the Burk test.

2. The “adequate statutory remedy” requirement ¶18 The trial court granted State’s motion to dismiss based on the argument that Wheat failed to meet the fifth Burk requirement that “no statutory remedy exists that is adequate to protect the Oklahoma policy goal.” Vasek v. Bd. of County Comm’rs, 2008 OK 35, ¶ 14, 186 P.3d 928, 932. This requirement has been the subject of a series of Supreme Court decisions recently summarized in Kruchowski v. Weyerhaeuser Co., 2008 OK 105, 202 P.3d 144. ¶19 As that case explains, Burk was followed

by Tate v. Browning-Ferris, Inc., 1992 OK 72, 833 P.2d 1218, which held that a Burk tort could be asserted for racial discrimination. The Supreme Court in Tate based its decision in part on Art. 5, § 46 of the Oklahoma Constitution, which prohibits local and special laws on certain subjects. As the Court explained, although all victims of discrimination form one class, Oklahoma’s anti-discrimination statutes provided a private right of action for discrimination based on handicap, but not for other types of statusbased discrimination, such as race. This created an unconstitutional “dichotomous division of discrimination remedies.” Tate at ¶ 18, 833 P.2d at 1230 (emphasis omitted). To cure this constitutional infirmity, the Court held that the remedies under the statutes were not exclusive but “cumulative,” and a Burk tort could be asserted for racial discrimination. ¶20 Next came List v. Anchor Paint Manufacturing Co., 1996 OK 1, 910 P.2d 1011, which the Kruchowski Court recognized as a “diverg[ence]” from Tate because it was decided on the basis of whether the plaintiff’s remedies were “adequate,” rather than on constitutional grounds of equal treatment. Kruchowski at ¶ 11, 202 P.3d at 149. The List Court declined to extend the Burk tort remedy to a claim involving age discrimination because the plaintiff in that case had adequate statutory remedies. This decision was followed by several others also applying the rule that, where a statutory remedy is adeVol. 81 — No. 31 — 11/20/2010

quate for protecting public policy, a common law tort remedy such as that afforded by Burk is not needed. Id. at ¶ 19, 202 P.3d at 150. ¶21 However, in 2006, the Court refocused its analysis on the equality of the remedy, rather than its adequacy. In Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, the Court overruled List, as it subsequently explained in Kruchowski: [R]ather than discuss the adequacy of the remedies, we spoke [in Saint] in terms of disparate remedies and determined that, as required by the Constitution, the same remedies must be made available for everyone within the class of employment discrimination-handicap, race, sex and age.

Accordingly, pursuant to Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, and in order to provide clarity to the bench and bar, we hold that a plaintiff may pursue a state law claim for wrongful discharge in violation of public policy when the available remedies to the same class of employment discrimination victims are not uniform and evenhanded-regardless of whether the remedies originate under Federal or State law. It is only when the available remedy to the victim is not commensurate with that which is provided for like or similar discrimination to vindicate an on-the-job tort that we will craft an appropriate common law remedy.

Id. at ¶¶ 30-31, 202 P.3d at 153. The Court also stated, “[T]he plaintiff must make a showing that a breach of Oklahoma’s public policy occurred for which (a) there is no available statutory-crafted remedy or (b) the available statutory remedy is not commensurate with that which is provided for similar work-related discrimination.” Id. at ¶ 37, 202 P.3d at 154 (emphasis added.) Id. at ¶ 37. The Kruchowski Court concluded that, because the remedies are not the same for everyone in the class, “there is a Burk tort remedy for those who allege employment age discrimination.” Id. at ¶ 35. ¶22 Recently, the Court has expressed its position more explicitly, acknowledging that it has “clearly abandon[ed] the adequacy of remedies test in cases of wrongful termination involving status based discrimination,” i.e., “race, color, religion, sex, national origin, age, and handicap.” Shephard v. CompSource Oklahoma, 2009 OK 25, ¶ 11, 209 P.3d 288, 293 (emphasis added). As noted above, the Court

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has replaced that test with a “commensurate remedy rule,” requiring that in cases of status based discrimination all victims of handicap, race, gender, religion, national origin, and age discrimination receive similar remedies. Id. at ¶ 10, 209 P.3d at 292. The adequacy of remedies test only remains alive for cases where a plaintiff’s conduct (such as whistleblowing) is alleged to have triggered the discharge. Id. ¶23 Although the Supreme Court has not yet applied Kruchowski in an at-will government employee case, the constitutional basis of the Court’s decision in Kruchowski compels that result in the case at bar. Therefore, Wheat is not barred from bringing a Burk claim, even though she is a member of a legislatively created class of employees (made up of state government employees) distinct from the broader class of all Oklahoma employees. ¶24 It is true that for some purposes, the state can create a separate class composed of its employees and still pass constitutional muster.

For example, in Glasco v. State ex rel. Oklahoma Department of Corrections, 2008 OK 65, 188 P.3d 177, the Court upheld a statute permitting the state to discharge employees who had been on leave without pay for a year even though the plaintiff asserted the statute targeted state employees for different treatment than other injured workers. In the instant case, however, there is no legitimate reason for denying state employees the same basic anti-discrimination rights as other employees. Although State may terminate employees pursuant to the RIF Act, it may not select which employees to terminate on the basis of age or any other basis prohibited by the anti-discrimination statutes. Thus, for comparative purposes, the relevant class here must be composed of all victims of employment discrimination. ¶25 Any doubts about this conclusion were recently resolved in Smith v. Pioneer Masonry, Inc., 2009 OK 82, 226 P.3d 687. In that case, the Court held that “victims of employment discrimination form a single class and the Burk tort is available to all members of this class.” Id. at ¶ 11, 226 P.3d at 689. Smith held that a victim of racial discrimination could pursue a Burk tort under the public policy expressed in Oklahoma anti-discrimination law, even though the law explicitly excluded his employer because it employed less than 15 workers. The Court in Smith stated that the statutory and common law remedies exist to vindicate violations of 2712

the anti-discrimination statutes as to all victims of racial discrimination.

CONCLUSION ¶26 In summary, State employees who allege age discrimination are part of a larger, single class composed of all victims of employment discrimination, and, because the remedies for the different forms of discrimination are disparate, “there is a Burk tort remedy for those who allege employment age discrimination.”

Kruchowski at ¶ 35, 202 P.3d at 154. For these reasons, Wheat is entitled to pursue her claim.

The trial court’s dismissal order is hereby reversed and this matter is remanded for further proceedings. ¶27 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. GOODMAN, J., and FISCHER, J. (sitting by designation), concur.

1. Burk is the landmark Oklahoma Supreme Court decision that carved out an exception to the employee at-will doctrine for instances of employee terminations that are contrary to a clear mandate of public policy. A Burk claim can be brought against the State, because the GTCA does not provide immunity to the State from common law tort liability for wrongful discharge under Burk. Gunn v. Consol. Rural Water and Sewer Dist. No. 1, 1992 OK 131, ¶ 12, 839 P.2d 1345, 1351.

2. Mandate issued September 28, 2007.

3. Section 1302 states it shall be a discriminatory practice for an employer “[t]o fail or refuse to hire, to discharge, or otherwise to discriminate against an individual with respect to compensation or the terms, conditions, privileges, or responsibilities of employment, because of race, color, religion, sex, national origin, age, or handicap. . . .”

4. At the time of Wheat’s termination, § 840-2.27C(A) required the appointing authority to provide a plan for any reduction-in-force at least 60 days before the reductions began, and § 840-2.27B(2) defined “[a]ffected employees” as “classified and unclassified employees in affected positions.” These statutes have since been amended. Wheat claimed that TCDA discharged her without giving her 60 days advance notice and without paying severance benefits, both required by the RIF Act. 5. The latter requirement is different for alleged victims of statusbased discrimination, such as Wheat, as discussed in part two of this opinion.

6. We also note that Wheat’s employment with TCDA does not fit any of the categories which the current Discussion Draft of the Restatement of Employment Law states are non-at-will employment arrangements: “(a) a collective-bargaining agreement between an employer and an authorized collective-bargaining agent requiring cause for termination; (b) a bilateral agreement between an employer and employee for a definite or indefinite term; (c) a unilateral employer commitment limiting the employer’s power to terminate at will; or (d) a limitation on the employer’s power to terminate at will required by the implied duty of good faith and fair dealing.” Restatement (Third) of Employment Law, § 3.02 (Discussion Draft 2006). The instant case further does not involve the special instances listed in the Restatement’s § 3.06 for retaliatory firings or dismissals made to prevent the vesting of a right.

7. Record, Tab # 30, Defendant’s motion to dismiss at pp. 7-8.

2010 OK CIV APP 125 SHAWVER & SONS, INC. and COMMERCE & INDUSTRY INSURANCE, Petitioners, vs.

JENIFER WISE, COREY WISE (deceased), TRAVELERS INSURANCE CO., and the

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WORKERS’ COMPENSATION COURT, Respondents.

Case No. 107,968. August 16, 2010 PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT HONORABLE MARY A. BLACK, TRIAL JUDGE SUSTAINED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS Robert E. Applegate, Michael W. McGivern, PERRINE, McGIVERN, REDEMANN, REID, BERRY & TAYLOR, P.L.L.C., Tulsa, Oklahoma, for Petitioners PAUL A. SCOTT, Oklahoma City, Oklahoma, for Respondent Travelers Insurance Co. DEBORAH B. BARNES, JUDGE: ¶1 Shawver & Sons, Inc. (Employer) and Commerce & Industry Insurance (C&I) (collectively, Petitioners) seek review of an order of a three-judge panel of the Workers’ Compensation Court filed on January 6, 2010, affirming the trial court’s order dismissing Travelers Insurance Co. (Travelers). This case involves a claim by Jenifer Wise (Wife) on behalf of her deceased husband, Cory Wise (Deceased),1 for death benefits. The primary issue presented on appeal is whether Employer’s insurer at the time of Deceased’s on-the-job injury, C&I, or Employer’s insurer at the time of Deceased’s death, Travelers, should be liable for any death benefits that may be due. ¶2 We also address whether the trial court’s order constitutes an appealable order. The trial court’s order, filed on September 8, 2009, dismissed Travelers without prejudice, and found C&I “liable for any benefits that may be due in the claim for death benefits,” reasoning that “[t]he death claim is derivative in nature to the original on the job accident and the carrier with coverage on that day is liable.” The order of the three-judge panel affirmed the trial court’s order.

The order of the three-judge panel stated, in addition, that the trial court’s order “IS NOT AN APPEALABLE ORDER[] BECAUSE IT DOES NOT AWARD OR DENY BENEFITS.” ¶3 Based on our review of the record and applicable law, we vacate the order of the Vol. 81 — No. 31 — 11/20/2010

three-judge panel insofar as it held that the trial court’s order is not appealable. We sustain the order of the three-judge panel in all other respects and remand this case to the trial court for further proceedings.

FACTS AND PROCEDURAL BACKGROUND ¶4 In 2005, Deceased filed a workers’ compensation claim against Petitioners alleging that he sustained injuries while working for Employer. On April 13, 2006, this claim was settled by joint petition. ¶5 Wife now seeks death benefits from Employer for Deceased’s death. On December 16, 2008, Wife filed a Form 3-A, entitled “Claimant’s First Notice of Death and Claim for Compensation.”2 Wife claims that Deceased died on November 21, 2008, as a result of a cardiac arrest. According to Wife’s responses in the Form 3-A, Deceased suffered from “[p]ain due to [his] injury,” and the cardiac arrest was caused by “[p]ain medications due to [his] injury[.]” ¶6 Petitioners deny coverage. Moreover, on February 18, 2009, Petitioners filed a Form 13 to join Travelers, stating that Travelers is “the correct carrier for the date of the death claim.”3 ¶7 The trial court dismissed Travelers “without prejudice” from Wife’s claim for death benefits, and found C&I liable for any death benefits that may be owed to Wife. On appeal, the three-judge panel affirmed in an order filed on January 6, 2010; however, the three-judge panel’s order further states that the trial court’s order is not an appealable order because it does not award or deny benefits. From this order, Petitioners appeal.

STANDARD OF REVIEW ¶8 The two issues presented on this appeal — (1) whether the trial court’s order is appealable, and (2) whether Employer’s insurer at the time of Deceased’s on-the-job injury, or Employer’s insurer at the time of Deceased’s death, should be liable for any death benefits that may be due - are issues of law. When confronted with issues of law, this Court exercises de novo review. American Airlines v. Hervey, 2001 OK 74, ¶ 11, 33 P.3d 47, 50. Pursuant to this standard, we have plenary, independent and non-deferential authority to determine whether the trial court erred in its legal rulings. Id.

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ANALYSIS I. Appealable Order ¶9 Title 85 O.S. Supp. 2005 § 26(B) provides in pertinent part: The [Workers’ Compensation] Court . . . shall make or deny an award determining such claim for compensation . . . together with the statement of its conclusion of fact and rulings of law. . . . The decision of the [Workers’ Compensation] Court shall be final as to all questions of fact, and except as provided in Section 3.6 of this title, as to all questions of law.

Pursuant to this language, “[a]n order [of the Workers’ Compensation Court] that is reviewable must be one which either grants or denies an award of compensation or otherwise constitutes a final determination of the rights between the parties.” Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 21, 16 P.3d 1120, 1127 (footnote omitted). ¶10 In American Investigative & Security v.

Hamilton, 1998 OK 134, 969 P.2d 975, the order of the Workers’ Compensation Court declared that the employer’s insurer “did not, at the critical time in question, provide insurance coverage for the employer’s liability,” and, therefore, the Workers’ Compensation Court dismissed the insurer from the case. Id. On appeal, and pursuant to a sua sponte inquiry into its jurisdiction, the Oklahoma Supreme Court concluded that this was an appealable order because “[it] is the functional equivalent of a disposition that denies the insurer’s liability for an award.” Id. ¶11 Here, the trial court’s order dismissed Travelers because it found, in essence, that Travelers did not, at the critical time in question,4 provide insurance coverage. We find that, pursuant to American Investigative & Security v.

Hamilton, the trial court’s order is the “functional equivalent” of a disposition that denies Travelers’ liability for an award and, therefore, the order is appealable.

II. Insurer at the Time of the On-the-Job Injury is Liable for Death Benefits ¶12 Petitioners argue that the trial court erred in dismissing Travelers and finding that C&I, Employer’s insurer at the time of Deceased’s on-the-job injury, is liable for any death benefits that may be due. They argue, in other words, that the trial court erred in finding that Wife’s death claim is “derivative in 2714

nature to the original on the job accident and the carrier with coverage on that day[, C&I,] is liable.” They argue that Travelers, Employer’s insurer at the time of Deceased’s death, should be held liable because Wife’s claim “is a new claim” that did “not vest until . . . the date of [Deceased’s] death.”5 ¶13 In support of their argument, Petitioners cite to Viersen & Cochran Drilling Co. v. Ford, 1967 OK 12, 425 P.2d 965, where it is stated: We think it clear from the constitutional and legislative history of the death benefit provision of our Workmen’s Compensation Law that the two actions[, one for onthe-job injuries and the other for death benefits,] are separate and distinct.

Id. at ¶ 12 (emphasis added). The Court in Viersen & Cochran Drilling Co. was confronted with the issue of whether an employee’s joint petition settlement with his employer of a claim for compensation for an on-the-job injury bars an action by the employee’s dependents for death benefits. The Court determined that an action by the employee’s dependents for death benefits is separate and distinct from the deceased employee’s claim for compensation and, therefore, is not barred by the employee’s settlement made during his lifetime. However, in finding “that the[se] are two independent and separate rights of recovery,” the Court stated that these separate actions are nevertheless “based on the same accident . . . .” Id. at ¶ 10 (quoting Kay v. Hillside Mines, Inc., 91 P.2d 867, 870 (Ariz. 1939). ¶14 Petitioners also cite to Lekan v. P & L Fire Protection Co., 1980 OK 56, 609 P.2d 1289, where it is stated: The claim for benefits and the correlative duty to pay them are governed by the provisions of the law in effect when injury or death occurs. It is at this point in time that the right becomes vested and the obligation is fixed. The compensation rate to be applied in each case is that which was prescribed by statute for the period during which the compensable event — injury or death — takes place.

Id. at ¶ 4 (footnotes omitted). Thus, “[b]enefits for an injury shall be determined by the law in effect at the time of injury; benefits for death shall be determined by the law in effect at the time of death.” 85 O.S.2001 § 3.6(F). We note that this is consistent with the determination

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by the Oklahoma Supreme Court in Viersen & Cochran Drilling Co. that an action by a deceased employee’s dependents for death benefits is “separate and distinct” from the employee’s prior action for on-the-job injury compensation. In fact, not only is a claim for death benefits separate and distinct from the prior claim, but, of course, it does not even arise until the employee’s death. ¶15 That a death benefits claim is governed by the law at the time of death is also consistent with the intention of workers’ compensation law to compensate employees for their lost earning power. Matter of Death of Knight, 1994 OK 74, ¶ 7, 877 P.2d 602, 604. If an employee had not died as a result of an on-the-job injury, that employee would still be earning wages at the most recent rate. An employee’s dependents should, therefore, be compensated accordingly. ¶16 Pursuant to the law set forth above, we agree with Petitioners that (1) a claim for death benefits by an employee’s dependents is not barred by the settlement by joint petition of the deceased employee’s prior claim for injury compensation because the death benefits claim is considered to be “separate and distinct,” and (2) a claim for death benefits and the amount owed on a successful claim are governed by the provisions of the law in effect when the death occurs. However, we disagree with Petitioners that these rules dictate that an employer’s insurer at the time of an employee’s death should be liable for death benefits rather than the employer’s insurer at the time of the deceased employee’s on-the-job injury. Such a result would undermine the basis for death benefits compensation, and it would contravene the legislative intent expressed in 85 O.S. Supp. 2006 §§ 11(B) and 64.6 ¶17 Regarding the standard analysis for a single event, on-the-job injury, the Court in Viersen & Cochran Drilling Co., 1967 OK 12, 425 P.2d 965, quoted above, stated that a “separate and distinct” claim for death benefits, like the original claim for on-the-job injury compensation, is still “based on the same accident . . . .”

Id. at ¶ 10 (quoting Kay v. Hillside Mines, Inc., 91 P.2d 867, 870 (Ariz. 1939). That is, an employer’s actions with regard to, and its relationship with, its former employee at the time of that employee’s death are irrelevant in a claim for death benefits. Instead, courts focus on the work-related incident and must determine “[i]f the [on-the-job] injury . . . cause[d] death . . . .”

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85 O.S. Supp. 20057 § 22(8). Title 85 O.S. Supp.

2006 § 11 provides in pertinent part: A. Every employer subject to the provisions of the Workers’ Compensation Act shall pay … compensation according to the schedules of the Workers’ Compensation Act for the … death of an employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault as a cause of such injury ….

That is, death benefits are only claimable when the former employee’s death “result[s]” from an on-the-job injury. Id. Therefore, regarding the employer and the employer’s insurer in a death benefits claim, the critical time is the date of the on-the-job injury, and the critical issue is whether that injury caused the subsequent death. To hold a later insurer, such as Travelers, liable for the results (including death) of an onthe-job injury that occurred during the policy period of a predecessor insurer would undermine the basis for death benefits compensation. ¶18 In finding that Employer’s insurer at the time of Deceased’s on-the-job injury is liable for death benefits that may be due, we find strong support in 85 O.S. Supp. 2006 §11(B).

Section 11(B) provides in pertinent part: 4. Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier . . . .

(Emphasis added.) Section 11(B) further provides, in pertinent part: 5. Where compensation is payable for an injury resulting from cumulative trauma, the last employer in whose employment the employee was last injuriously exposed to the trauma during a period of at least ninety (90) days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier. . . .

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(Emphasis added.) These statutory excerpts address situations in which an employee’s injury has occurred over time rather than during a single, work-related event. Nevertheless, they set forth the intent of the Legislature to limit liability to the employer’s insurance carrier that was “on the risk when the employee was last . . . exposed . . . .” Although Deceased was injured during a single event accident rather than over time, we find that holding liable Employer’s insurer at the time of Deceased’s death, rather than Employer’s insurer at the time of Deceased’s on-the-job injury, would contravene the legislative intent expressed in § 11(B) to hold liable the last insurance carrier “on the risk” during the time of the on-the-job injury. ¶19 Finally, we also find strong support in 85 O.S. Supp. 2006 § 64, which provides in pertinent part: A. Every policy of insurance covering the liability of the employer for compensation . . . shall contain a provision setting forth the right of the Administrator to enforce in the name of the state, for the benefit of the person entitled to the compensation insured by the policy either by filing a separate application or by making the insurance carrier a party to the original application, the liability of the insurance carrier in whole or in part for the payment of such compensation . . . .

B. Every such policy shall contain a provision that, as between the employee and the insurance carrier, the notice to or knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge, as the case may be on the part of the insurance carrier, that jurisdiction of the employer shall, for the purpose incorporated in this title, be jurisdiction of the insurance carrier, and that the insurance carrier shall in all things be bound by and subject to the orders, findings, decisions or awards rendered against the employer for the payment of compensation under the provisions incorporated in this title.

(Emphasis added.) That is, notice of the occurrence of an on-the-job injury binds the insurance carrier on the risk at the time of the injury to subsequent orders, findings, decisions or awards rendered against the employer for that injury. Pursuant to this language, we find that the Legislature intended that an employer’s insurer on the risk at the time of an employee’s 2716

on-the-job injury be liable for a potential award of death benefits that may be ordered following that employee’s resultant death.

CONCLUSION ¶20 The trial court did not err by dismissing Travelers from this case and finding C&I liable for any death benefits that may be due. Travelers should not be held liable for the potential results of an incident, Deceased’s on-the-job injury, that occurred during the policy period of the predecessor insurer, C&I. Such a result would undermine the basis for death benefits compensation, and it would contravene the legislative intent expressed in 85 O.S. Supp.

2006 §§ 11(B) and 64. ¶21 For these reasons, we vacate the order of the three-judge panel insofar as it held that the order is not appealable. We sustain the order of the three-judge panel in all other respects and remand this case to the trial court for further proceedings. We express no view upon the merits of Wife’s claim for death benefits. ¶22 SUSTAINED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. WISEMAN, C.J., and FISCHER, P.J., concur.

1. Although in the Oklahoma Supreme Court’s record Deceased’s name is spelled “Corey Wise,” we refer to him with the spelling found on the Form 3-A filed by Wife.

2. Record (R.), p. 3.

3. R., p. 6.

4. This Court’s determination regarding the “critical time in question” — i.e., whether Employer’s insurer at the time of Deceased’s on-thejob injury, C&I, or Employer’s insurer at the time of Deceased’s death, Travelers, should be liable for any death benefits that may be due — is set forth below.

5. Petitioners’ Brief-in-chief, p. 2.

6. Regarding statutory interpretation, the Oklahoma Supreme Court recently stated: The fundamental rule of statutory construction is to ascertain and give effect to legislative intent. That intent is first divined from the language of a statute. If a statute is plain and unambiguous, it will not be subjected to judicial construction but will receive the interpretation and effect its language dictates. Only where the intent cannot be ascertained from a statute’s text, as when ambiguity or conflict with other statutes is shown to exist, may rules of statutory construction be invoked. When possible, different provisions must be construed together to effect a harmonious whole and give intelligent effect to each. An absurd result cannot be presumed to have been intended by the drafters.

Rogers v. QuikTrip Corp., 2010 OK 3, ¶ 11, 230 P.3d 853, 859 (footnotes omitted).

7. As pointed out by Petitioners as part of their argument, Wife’s claim for death benefits is governed by the provisions of the law in effect when Deceased’s death occurred on November 21, 2008. However, as stated above, this does not answer the question of which insurance provider (the provider at the time of the injury or at the time of death) should be liable for death benefits.

2010 OK CIV APP 126 CHAPARRAL ENERGY, L.L.C., an Oklahoma Limited Liability Company,

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Plaintiff/Appellee/Counter-Appellant, vs.

PIONEER EXPLORATION, LTD., a Foreign Limited Partnership, Defendant/Appellant/ Counter-Appellee.

Case No. 108,113. August 13, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE PATRICIA G. PARRISH, TRIAL JUDGE REVERSED AND REMANDED Toby M. McKinstry, TOMLINSON & O’CONNELL, P.C., Oklahoma City, Oklahoma, and Keith D. Tracy, Oklahoma City, Oklahoma, for Plaintiff/Appellee, Michael E. Smith, Sharon T. Thomas, HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant.

CAROL M. HANSEN, Judge: ¶1 This appeal arises from the action of Plaintiff/Appellee/Counter-Appellant, Chaparral Energy, L.L.C. (Chaparral), against Defendant/Appellant/Counter-Appellee, Pioneer Exploration, Ltd. (Pioneer), to recover for a gas imbalance. Both parties seek review of the trial court’s order granting summary judgment in favor of Chaparral for conversion and setting damages based on the imbalance’s value as of the date the trial court found the conversion claim accrued. We reverse, holding the parties’ accounting dispute did not as a matter of law give rise to a conversion claim.

interests, and mineral leases in the described lands, as well as in associated contracts, including operating agreements. The conveyance excepted gas imbalances from a reservation of rights or choses in action arising prior to the effective date of the conveyance. ¶4 Pioneer took the position the conveyance did not address the underproduction prior to July 1, 2000. It therefore continued to show the gas imbalance attributable to Chaparral in its records as beginning with July 1, 2000 production. It did not attribute Bristol’s imbalance (Historic Imbalance) to Chaparral. ¶5 Chaparral sued Pioneer for an accounting, in-kind or cash balancing, breach of contract, conversion, and violation of the Natural Gas Market Sharing Act (Sweetheart Gas Act), 52 O.S.2001 §§581.1-581.10. Pioneer answered and denied liability. Chaparral moved for summary judgment on its claim for conversion, arguing Pioneer wrongfully converted the Historic Imbalance when it “eliminated” the imbalance instead of transferring it to Chaparral. In response, Pioneer conceded Chaparral assumed Bristol’s position as an underproduced or overproduced party when it acquired Bristol’s interests in the McLain wells, but argued Chaparral had only a chose in action for gas balancing, and not a tort claim for conversion.

¶2 The gas imbalance arose before the parties acquired their interests in the two wells at issue, the McLain F Nos. 1-32 and 4-32 wells.

Pioneer acquired its interest and assumed operations from Phillips Petroleum Corporation in July 1999. Chaparral purchased its interest from the bankruptcy estates of Bristol Resources Corporation and its affiliates (collectively Bristol) effective July 1, 2000.

¶6 Pioneer counter-moved for partial summary judgment as to Chaparral’s claims for conversion and violation of the Sweetheart Gas Act, arguing (1) Pioneer’s failure to show on the gas balancing statements a gas imbalance attributable to Chaparral’s interest in the McLain wells prior to July 1, 2000 does not constitute a conversion of tangible personal property as a matter of law, and (2) the Sweetheart Gas Act does not apply where an operating agreement provides for the taking, sharing, and marketing of gas even if the agreement does not contain a gas balancing agreement.

¶3 In 2006, Chaparral requested gas balancing statements for the time period immediately prior to July 1, 2000. In response, Pioneer requested documentation showing Chaparral was entitled to the gas balancing adjustments prior to July 1, 2000. Chaparral provided a copy of the conveyance document from Bristol to Chaparral, which transferred all of Bristol’s “rights, titles, and interests” in the mineral interests, royalty interests, overriding royalty

¶7 The trial court granted summary judgment in favor of Chaparral on its conversion claim and denied Pioneer’s counter-motion on the claim. The trial court denied Pioneer’s motion for summary disposition as to the Sweetheart Gas Act claim based upon Chaparral’s voluntary dismissal of its claim. The trial court dismissed Chaparral’s breach of contract claim based upon its ruling at a hearing not included in the appellate record.

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¶8 After a separate hearing on damages, the trial court entered an order finding the amount of Historic Imbalance from the McLain F Nos. 1-32 and 4-32 wells attributable to Chaparral and converted by Pioneer was 6,559 mcf1 and 19,364 mcf, respectively. The trial court denied Chaparral’s request to value damages pursuant to 23 O.S.2001 §64(2) at the highest market value of the property at any time between the conversion and the verdict, finding Chaparral did not exercise due diligence in pursuing its conversion claim. However, it did grant Chaparral’s alternative request to value damages pursuant to §64(1) at the value of the property at the time of conversion on November 14, 2007, with interest from that time. The trial court granted judgment to Chaparral in the amount of $311,919.14. It dismissed Chaparral’s remaining claims without prejudice. ¶9 Both sides appeal from the judgment. Pioneer contends the trial court erred in granting judgment for conversion because an underproduced party has a claim for equitable gas balancing in the absence of a gas balancing agreement, not for conversion. Chaparral contends the trial court erred in refusing to award damages based on the highest market value of the Historic Imbalance between the date its conversion claim accrued and the date the trial court granted summary judgment. ¶10 Because a grant of summary judgment involves purely legal determinations, we will review the trial court’s decision under a de novo standard. Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051, 1053. Summary judgment is appropriate only when there is no substantial controversy as to any material fact and one of the parties is entitled to judgment as a matter of law. 12 O.S.Supp. 2002, Ch. 2, App. 1, Rule 13. ¶11 Conversion is an act of dominion wrongfully exerted over another’s tangible personal property in denial of or inconsistent with the owner’s rights in the property. Conversion does not lie for a debt. Welty v. Martinaire of Oklahoma, Inc., 1994 OK 10, 867 P.2d 1273, 1275.

Oil and gas do not become personal property until produced and severed from the leasehold.

When they are in situ, they are considered part of the realty. Halliburton Oil Producing Co. v.

Grothaus, 1998 OK 110, 981 P.2d 1244, 1251.

Therefore, oil and gas in situ are not subject to conversion.

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¶12 After oil or gas is produced, it is tangible personal property and is subject to conversion.

However, under the common law in Oklahoma, working interest owners in an oil or gas well are tenants in common. Each cotenant has the right to develop the property and market production, subject only to the duty to account to other cotenants. Therefore, under ordinary circumstances, the sale of gas to a purchaser by a cotenant without the consent of other cotenants is lawful and does not constitute conversion on the part of either the working interest cotenant or the purchaser. Anderson v. Dyco Petroleum Corp., 1989 OK 132, 782 P.2d 1367, 1371-1372. ¶13 The provision of the operating agreement that permits each owner to take and market its share of production in kind anticipates that any owner may take at any time. When one working interest cotenant sells more than its share of gas and there is no gas balancing agreement, the equitable remedy available to the other cotenants is either balancing in kind, periodic cash balancing prior to depletion, or cash balancing at depletion, depending upon the circumstances. Harrell v. Samson Resources Co., 1998 OK 69, 980 P.2d 99, 105. ¶14 In the present case, Chaparral asserts Pioneer converted the Historic Imbalance by zeroing-out the gas volume held for Chaparral’s account on the gas balancing statement.

The gas represented by the Historic Imbalance was not converted because it was produced and sold by a cotenant with the right to do so.

The Historic Imbalance itself is not tangible personal property but is an accounting entry.

The allegation Pioneer eliminated the Historic Imbalance is in essence an allegation Pioneer has improperly accounted to its cotenant, Chaparral, for its overproduction. Chaparral’s cause of action is not for conversion but for accounting and gas balancing. ¶15 The trial court improperly granted summary judgment to Chaparral for conversion. Its judgment is REVERSED and this matter is REMANDED for further proceedings consistent with this opinion.

BUETTNER, P.J., and HETHERINGTON, J., concur.

1. Mcf = one thousand cubic feet.

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2010 OK CIV APP 122 REX EVERETT GILWORTH, SR., Plaintiff/ Appellant, vs. STATE OF OKLAHOMA ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellee.

Case No. 107,871. September 29, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE JAMES B. CROY, JUDGE AFFIRMED Aaron T. Corbett, Oklahoma City, Oklahoma, for Plaintiff/Appellant, Douglas R. Young, John K. Lindsey, Oklahoma City, Oklahoma, for Defendant/Appellee.

ROBERT DICK BELL, VICE-CHIEF JUDGE: ¶1 Plaintiff/Appellant, Rex Everett Gilworth, Sr., appeals from the district court’s order denying his request to modify the one-year revocation of his driver’s license. Defendant/ Appellee, Oklahoma Department of Public Safety (DPS), revoked Gilworth’s driver’s license because he had a prior conviction within ten years of the arrest giving rise to the most recent conviction for driving under the influence of alcohol (DUI). For the reasons set forth below, we affirm. ¶2 Gilworth is an eighty-three year old driver who lives alone in Oklahoma City. On July 26, 2008, Gilworth was arrested by an Oklahoma City police office for DUI. Gilworth entered a guilty plea on July 17, 2009. Because Gilworth had a prior revocation within ten years of the arrest giving rise to the DUI conviction, DPS revoked Gilworth’s driving privileges for one year pursuant to 47 O.S. Supp. 2007 §6205.1(A)(2). Gilworth sought modification of the revocation from the district court. ¶3 The modification hearing was held November 10 and 19, 2009. We note Gilworth’s attorney requested that the court reset the modification hearing for a date in November, 2009. The rescheduling of the hearing date appears to be a maneuver to take advantage of a recent amendment to §6-205.1. Prior to November 1, 2009, the district court had no power to modify the one-year license revocation under 47 O.S. Supp. 2007 §6-205.1(A)(2).

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specifically allowed the district court to modify a one-year order of revocation. Because the hearing took place after the effective date of the amendment, all parties proceeded under the amended language. “[W]e hold any rights [Gilworth] had to modification were controlled by the law delineating the powers of the district court to grant such modification in effect at the time the district court sought to grant that relief.” Carl v. State, ex rel. Dept. of Public Safety, 1995 OK CIV APP 147, ¶7, 909 P.2d 1196, 1198. ¶4 After hearing evidence, the court denied Gilworth’s motion to modify the revocation.

Gilworth appeals. In an appeal from a driver’s license revocation, this Court will not disturb the factual findings of the district court “if there is any evidence in the record to support them and they are free of legal error.” Polk v.

State ex rel. Dept. of Pub. Safety, 1996 OK CIV APP 100, ¶4, 927 P.2d 55, 56. Accord Smith v.

State ex rel. Dept. of Pub. Safety, 1984 OK 16, ¶7, 680 P.2d 365, 368. ¶5 The district court may modify a revocation when it determines the person whose driver’s license has been revoked has no other adequate means of transportation and it may enter an order directing DPS to allow driving, subject to the limitations of §6-205.1, and the installation of an ignition interlock device. See 47 O.S. Supp. 2005 §§754.1 and 755. Gilworth argues the district court erred, as a matter of law, when it denied his modification request because he met his burden of proving he had no adequate means of transportation. According to Gilworth, §755’s language indicates the Legislature’s intent to mandate the granting of a modification upon such a showing by an affected driver. ¶6 We disagree with Gilworth’s interpretation of §755. Gilworth has no vested right to the issuance of a driver’s license; the issuance of a driver’s license amounts to the grant of a privilege. Carl, 1995 OK CIV APP 147at ¶7, 909 P.2d at 1198. Furthermore, the Legislature’s use of the term “may” in §755 has a well-established discretionary or permissive connotation.

See Shea v. Shea, 1975 OK 90, ¶10, 537 P.2d 417, 418. Thus, even if Gilworth demonstrates he has no other means of transportation, the district court still has the discretion to deny his request for modification of the order revoking his driving privileges. ¶7 We next consider whether the district court abused its discretion when it denied Gil-

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worth’s request to modify the revocation of his driver’s license. Gilworth submits the district court abused its discretion because he demonstrated his need for a driver’s license to secure transportation to his part-time job at Wheeler Chevrolet in Hinton, Oklahoma. He established there are no public buses or other forms of public transportation from Oklahoma City to Hinton. He also testified his job duties included driving his employer’s vehicles to other locations. Gilworth stated he needed to maintain this job to supplement his monthly social security income of $776.00. ¶8 Even though Gilworth may have established that he has “no other adequate means of transportation” to his employment, we find the district court did not abuse its discretion when it denied the modification. Gilworth’s need for a driver’s license is trumped by his extensive history of traffic violations. Since 1976, Gilworth’s driving record indicated eight alcohol violations, seventeen suspensions or revocations of driving privileges, five accidents, twenty-six speeding violations, eight failures to appear for court, two prior modifications and two letters in lieu of license — both of which were violated by Gilworth, and numerous failures to have a driver’s license in his possession.

In addition, of the eight alcohol violations resulting in eight revocations of his driving privilege, three were based on DUI convictions, one revocation was based on testing .10 or more, and four were based on his refusal to submit to the State of Oklahoma’s test for alcohol. Based on this driving record, we cannot find the district court abused its discretion in denying Gilworth’s requested relief. ¶9 Gilworth next argues the court erred by considering more than ten years of his driving record. He claims the district court’s review was limited by 47 O.S. Supp. 2009 §6-205.1 to a maximum ten year look back period. Gilworth’s argument lacks merit. Section 6-205.1 prescribes periods of revocation which are dependent on a motorist’s ten year history of prior revocations and convictions. This section instructs DPS on how to calculate the proper period or length of revocation. This section does not limit DPS or the district court’s consideration of a motorist’s driving record to that ten year period, for purposes of exercising its discretion to modify the revocation. ¶10 Because he has an interlock device on his vehicle, Gilworth next submits the district 2720

court’s decision disregarded the public policy to reduce drunk driving by implementing the monitoring of such drivers with an interlock device. Title 47 O.S. Supp. 2009 §754.1 requires that an approved ignition interlock device be placed, at the person’s own expense, upon every motor vehicle operated by that person as a prerequisite and condition to the district court’s powers of modification. Contrary to Gilworth’s contention, this section does not mandate the district court to grant a modification when an interlock device is installed. ¶11 On the basis of the foregoing, we conclude the district court did not abuse its discretion when it denied Gilworth’s request to modify the revocation of his driver’s license.

The judgment of the district court is affirmed. ¶12 AFFIRMED. JOPLIN, P.J., and MITCHELL, J., concur.

2010 OK CIV APP 120 FIRST UNITED BANK & TRUST CO., a state banking corporation, Plaintiff/ Appellee, vs. GLENN S. PENNY, Defendant/ Appellant.

Case No. 108,207. September 23, 2010 APPEAL FROM THE DISTRICT COURT OF BRYAN COUNTY, OKLAHOMA HONORABLE MARK R. CAMPBELL, TRIAL JUDGE AFFIRMED Heather Burrage, BURRAGE LAW FIRM, Durant, Oklahoma, for Plaintiff/Appellee William A. Gossett, Duncan, Oklahoma, for Defendant/Appellant DEBORAH B. BARNES, JUDGE: ¶1 This accelerated appeal1 involves a lender’s action to collect on amounts owed by a debtor on a promissory note. Glenn S. Penny (Debtor) appeals the trial court’s Journal Entry of Judgment, filed on March 17, 2010, granting appellee First United Bank & Trust Co.’s (Bank) motion for summary judgment. Debtor executed a promissory note (the Note) in favor of Bank in the amount of $4,306,510, secured by stock. Debtor defaulted within a few months.

Although Bank liquidated the collateral, there remained $615,058.71, plus accruing interest and reasonable attorney fees owed, as set forth in the Judgment.

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¶2 On appeal, Debtor argues that the trial court erred in granting summary judgment in favor of Bank because genuine issues of material fact exist as to whether Bank failed to discharge the duty to liquidate collateral in a commercially reasonable manner by either failing to properly monitor the market price of certain shares of stock or by ignoring the decreasing market value thereof.2 Upon our review of the record and applicable law, we find the trial court did not err in granting summary judgment in favor of Bank. We affirm.

UNDISPUTED MATERIAL FACTS ¶3 The following are the material facts as to which there is no substantial controversy: 1. On January 17, 2008, Debtor, for value received, made, executed and delivered to Bank, the Note of that date, in writing, whereby Debtor promised to pay the sum of $4,306,510, plus interest as stated, with a maturity date of January 17, 2009.3 2. Pursuant to the terms of the Note,4 the loan was secured by a brokerage account in Debtor’s name. The account contained $4,100,000 in cash.5 Debtor also pledged to Bank as collateral 50,000 shares of a publicly traded company named Flotek Industries, Inc. (Flotek).6 3. The Note provides7 that “Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. . . . Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender’s security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone.”

4. On April 17, 2008, Bank’s officer, Jerrad Besch, sent an email to Debtor, requesting Debtor provide more shares for collateral for the loan. Besch notes the trading value of the Flotek stock and states that “we are currently short about $390K. Is it possible to send more [F]lotek shares either to myself or to Danny? At today’s price you would need approx. 35,000 shares more.”8 5. In the spring of 2008, Debtor became delinquent on payments due pursuant to the Note.9 In an effort to assist Debtor, and at the request of Debtor, Bank worked with Vol. 81 — No. 31 — 11/20/2010

him to assist Debtor in bringing the loan current and allowed Debtor ample time to procure additional collateral to secure the Note.10 6. In October 2008, it became clear to Bank that Debtor would not bring the loan current or pledge additional collateral to secure the loan.11 7. Bank liquidated the stock by selling it on the open market for fair market value in late October 2008 and early November 2008, for $3.00 per share.12 8. The market price for the Flotek shares dropped after the Note was executed and before Debtor defaulted.13 The price ranged from a low of $10.00 per share to a high of over $21.00 per share during the time period from April 2008 until early October 2008.14 9. The proceeds of the sale of collateral were insufficient to cover the outstanding balance on the loan. As of December 11, 2008, Debtor was still indebted to Bank for $615,058,15 with interest accruing at the agreed default rate of 21 percent per year.16 10. Bank sued Debtor on December 17, 2008, seeking payment of the $615,058 outstanding loan balance plus interest, as well as reasonable attorney fees and costs of collection.17 Debtor answered and counterclaimed for “damages greater than the amount sued for by [Bank], with such difference being in the amount of more than $10,000.00.”18 ¶4 On January 13, 2010, Bank filed its motion for summary judgment, asserting there was no substantial controversy as to any material fact regarding its claim or Debtor’s counterclaims, to which Debtor responded. The trial court granted Bank’s motion for summary judgment in its Judgment filed on March 17, 2010, from which Debtor now appeals.

STANDARD OF REVIEW ¶5 Summary judgment may be granted when there is no substantial controversy as to any material fact. Rule 13(a), Rules for District Courts, 12 O.S. Supp. 2002, ch. 2, app. The standard of review on the entry of judgment granting summary relief is de novo. Jennings v.

Badgett, 2010 OK 7, ¶ 5, 230 P.3d 861, 864. We review rulings on issues of law pursuant to the

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plenary power of the appellate courts without deference to the trial court. Id. ANALYSIS ¶6 Summary judgment is appropriate when the pleadings, affidavits, depositions, admissions or other evidentiary materials show there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Tucker v. ADG, Inc., 2004 OK 71, ¶ 11, 102 P.3d 660, 665. A party opposing a motion for summary judgment must show “the reasonable probability, something beyond a mere contention, that the opposing party will be able to produce competent, admissible evidence at the time of trial which might reasonably persuade the trier of fact in his favor on the issue in dispute.” Davis v. Leitner, 1989 OK 146, ¶ 15, 782 P.2d 924, 927. (Emphasis added.)

Rule 13(b), Rules for District Courts, 12 O.S. Supp. 2002, ch. 2, app., provides, in part, that “[a]ll material facts set forth in the statement of the movant which are supported by acceptable evidentiary material shall be deemed admitted for the purpose of summary judgment or summary disposition unless specifically controverted by the statement of the adverse party which is supported by acceptable evidentiary material.” Where no effort has been made to refute an argument, the correctness of the argument may be deemed to be conceded. Sasseen v.

State Board of Equalization, 1961 OK 152, ¶ 5, 363 P.2d 252, 253-54. ¶7 Sale of collateral must be conducted in a commercially reasonable manner. Title 12A O.S.2001 § 1-9-610(b) provides that: “Every aspect of a disposition of collateral, including the method, manner, time, place, and other terms, must be commercially reasonable.” ¶8 Debtor specifically limits his collateral sale challenge on appeal. He states he does not challenge Bank’s sale of the stock under 12A O.S.2001 § 1-9-627(b),19 but rather alleges a claim, outside the Uniform Commercial Code (Code) provisions, that Bank “was negligent in either failing to monitor the price of the Flotek Shares after [Debtor’s] default, or in ignoring the market value decline of the Flotek Shares.”20 ¶9 The record does not specify the specific market in which Bank sold the Flotek shares;21 however, there was undisputed evidence that Bank sold the shares at their then fair market value, thus satisfying § 1-9-627(b)(2). Although 2722

the comments to the Code and corresponding Oklahoma statutes are not binding, we do find them persuasive. See Wilkerson Motor Co. v.

Johnson, 1978 OK 12, ¶ 7, 580 P.2d 505, 507. The Oklahoma Code comments state in relevant part that “[t]he reasonableness of the sale is determined by the manner of the sale and not the price. Price is a component of the sale which a court may consider, but is not alone determinative.” Comment 5 to § 1-9-610. (Citations omitted.) The comment to § 1-9-627 cites First National Bank and Trust Company of Enid v.

Holston, 1976 OK 196, ¶ 10, 559 P.2d 440, 444, for the proposition that the “price received is not determin[a]tive of the issue” of commercial reasonableness. ¶10 Further, the Oklahoma Supreme Court has established that: The secured party is required to utilize his best efforts to sell the collateral for the best price and to have a reasonable regard for the debtor’s interest. The commercial realities are that the secured creditor will generally try to obtain the highest possible price for collateral since recovery of any deficiency is usually dubious. He is not, however, required to anticipate the course a market will take. If the secured party sells the collateral in the usual manner in any recognized market, or if he sells at a price current in the market at the time of his sale, or if he has otherwise sold in conformity with commercially reasonable practices among dealers in the type of property sold, he has sold in a commercially reasonable manner. The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.

Id. at ¶ 10, 559 P.2d at 444-45. (Footnotes omitted and emphasis added.) ¶11 Noting the Code provisions have been satisfied, Debtor specifically states22 that he is “not alleging that the fact that the disposition of the Flotek Shares could have brought more money if sold at a different time was, in and of itself, the cause of such disposition being commercially unreasonable.”23 Debtor also does not dispute the fact that Bank did not dispose of the collateral during the time it gave Debtor time to get his loan out of default, a fact sup-

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ported by the affidavit of Dennis Garrett, an officer of Bank.24

bank the right, but not the obligation, to sell the stock.

¶12 Instead, Debtor alleges a lack of commercial reasonableness in the sense that Bank was “negligent in either failing to monitor the price of the Flotek Shares after [Debtor’s] default, or in ignoring the market value decline of the Flotek Shares.”25 To defeat summary judgment, Debtor would have to establish the existence of this alleged duty of Bank to monitor the price of the shares and disputed facts as to whether Bank breached this duty. In effect, Debtor’s argument would have this Court place Bank in the position of Debtor’s investment advisor.

This we decline to do.

¶15 Likewise, in Capos v. Mid-America National Bank of Chicago, 581 F.2d 676 (7th Cir. 1978), the debtor sued the bank for breach of an alleged duty to foreclose on stock given as collateral when its value fell to the vicinity of the amount owed. The Capos debtor, like Debtor in this case, never instructed the bank to sell the stock. The loss was, “quite simply, an investment loss, the investment was Capos’, not [the bank’s] ….” Id. at 680. The Capos court stated:

¶13 The loan transaction, secured by stock, is governed by the Code.26 The Code provides that “a secured party shall use reasonable care in the custody and preservation of collateral in the secured party’s possession.” 12A O.S. Supp.

2006 § 1-9-207(a). Although the Code requires a secured party (Bank) to maintain custody and preserve stock as collateral in its possession, this does not mean Bank will be liable for a fall in stock prices. ¶14 Whether there is a duty of Bank, as a pledgee of stock (the value of which is subject to fluctuating market conditions) that secures a promissory note to the Debtor as pledgor to preserve the stock’s value during the period of pledge pursuant to § 1-9-207 appears to be an issue of law and a matter of first impression in Oklahoma.27 Other jurisdictions have found that a pledgee’s duty with regard to pledged stock is confined to physical care, and a pledgee will not be liable for a decline in value.28 In Tepper v. Chase Manhattan Bank, N.A., 376 So.2d 35 (Fla. Dist. Ct. App. 1979), the trial court’s grant of summary judgment on the debtor’s counterclaim against the bank for failure to preserve the value of pledged securities for a promissory note the bank recovered a judgment upon was upheld by the appellate court pursuant to § 9-207. In Tepper, the court stated that “the general law is that a pledgee’s duty with regard to the care of the pledged chattel is confined solely to the physical care of the chattel and a pledgee is not liable for a decline in the value of pledged instruments. In other words, the burden is upon the pledgor to preserve the value of the security.” Id. at 36. The Tepper court also noted that the promissory note, as in the case before this Court, gave the Vol. 81 — No. 31 — 11/20/2010

[The bank] urges us to affirm the district court judgment on the alternative ground that a bank has no duty to its borrower to sell collateral stock of declining value. We think it appropriate to do so. It is the borrower who makes the investment decision to purchase stock. A lender in these situations merely accepts the stock as collateral, and does not thereby itself invest in the issuing firm. Nor, unless otherwise agreed, does the lender undertake to act as an investment adviser, although imposing a duty on the lender to sell the stock at the “reasonable” time would foist that role upon it. Not surprisingly, Illinois common law did not impose a duty on a pledgee to sell shares of stock at any time or liability for depreciation of the shares’ value while in his possession.”

Id. (Citation omitted.)29 ¶16 In a case similar to the one before this Court, New Jersey Bank v. Toffler, 353 A.2d 116 (N.J.Super.A.D. 1976), the bank sued to recover the balance of a loan collateralized by pledged stock. The debtor counterclaimed, alleging the bank neglected to protect and to preserve the value of the securities pledged and that along with this duty of reasonable care come disputed factual questions as to whether the bank acted reasonably. The bank notified the debtor of the decline in value and the debtor made no request that the collateral be sold. Relying on Code § 9-207, the trial court rejected the debtor’s assertion and granted summary judgment in favor of the bank. The debtor appealed. In affirming the trial court’s grant of summary judgment, the Toffler court found that § 9-207’s “custody and preservation of collateral” obligation did not extend to holding a pledgee liable for a decline in the value of pledged instruments as a matter of law, absent a showing of bad faith or negligent refusal to sell after

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demand, neither of which occurred in the Toffler case or in the case before this Court. ¶17 In this case, Debtor does not dispute he requested Bank not to sell the Flotek stock while Debtor tried to become current on his Note obligation. Debtor does not dispute that Bank, in fact, emailed Debtor about the decline in share value and demanded additional collateral. The Note provides that Bank had no duty to preserve the value of the stock or to take any action in connection with management of the collateral. In fact, the Note provided: Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. . . . Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender’s security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. ¶18 The party opposing the motion for summary judgment must attach supporting evidentiary materials to show there is a material disputed fact. See Tucker v. New Dominion, L.L.C., 2010 OK 14, ¶ 11, 230 P.3d 882, 885. This Debtor failed to do. ¶19 Therefore, as a matter of law, we find pursuant to these undisputed facts, Bank had no duty to “monitor” the decline of Flotek’s shares. As stated in the Capos case, it is the borrower who makes the investment decision regarding stock. In accepting stock as collateral, a bank does not take on the responsibility of becoming the borrower’s investment advisor.

Without a duty owed, Debtor’s negligence theory cannot be sustained. Sloan v. Owen, 1977 OK 239, ¶ 7, 579 P.2d 812, 814. ¶20 In the case of a default secured by a stock pledge, the pledgee’s duty of reasonable care pursuant to § 1-9-207 to preserve the collateral is satisfied when the collateral is sold in good faith and in a commercially reasonable manner.

Title 12A O.S.2001§ 1-9-627(b), provides that a disposition of collateral is made in a commercially reasonable manner if the disposition is made at the price current in any recognized market at the time of the disposition. There is no dispute that this is exactly what Bank did.

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CONCLUSION ¶21 Based on our review of the record, the undisputed facts, and the law, we affirm the trial court’s grant of summary judgment. ¶22 AFFIRMED. WISEMAN, C.J., and FISCHER, P.J., concur.

1. This appeal has been assigned to the accelerated docket and stands submitted without appellate briefing pursuant to Okla.Sup. Ct.R. 1.36, 12 O.S. Supp. 2004, ch. 15, app. 1.

2. Record (R.), Tab 6, “[Debtor’s] Response and Objection to [Bank’s] Motion for Summary Judgment,” pp. 3, 6, and 7.

3. R., Tab 5, “Promissory Note,” which is a renewal of an existing debt.

4. R., Tab 5, at p. 2 of the Note, at the paragraph entitled “Collateral.” Apparently, there was a separate “Collateral Pledge Agreement” involved in this transaction; however, it is not part of the appellate record before this Court.

5. Id. 6. R., Tab 5 and Tab 6, at p. 2.

7. R., Tab 5, at p. 2 of the Note, at the paragraph entitled “General Provisions.”

8. R., attachment to Tab 6.

9. R., Tab 5, attached Affidavit of Dennis Garrett, Bank’s officer.

10. Id. 11. Id. 12. Id., and R., Tab 6, attached Affidavit of Debtor.

13. R., Tab 6, Exh. 4.

14. Id. 15. R., Tab 5, “[Bank’s] Motion for Summary Judgment,” p. 3.

16. Id. 17. R., Tab 2, “Petition.”

18. R., Tab 3, “Answer and Counterclaim.”

19. Title 12A O.S.2001§ 1-9-627(b), provides that : (b) A disposition of collateral is made in a commercially reasonable manner if the disposition is made: (1) in the usual manner on any recognized market; (2) at the price current in any recognized market at the time of the disposition; or (3) otherwise in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.

20. R., Tab 6, at p. 6.

21. Evidence was submitted that shares of Flotek were traded on the New York Stock Exchange. R., Tab 6, Exh. 3. Assuming Bank sold the shares on the New York Stock Exchange, this would constitute a “recognized market” under § 1-9-627(b)(1). See Code, 12A O.S.2001 § 1-9-627, comment 4 (“[T]he concept of a ‘recognized market’ in subsections (b)(1) and (2) is quite limited; it applies only to markets in which there are standardized price quotations for property that is essentially fungible, such as stock exchanges.”).

22. R., Tab 6, at p. 6.

23. Id. 24. R., Tab 5, Affidavit of Dennis Garrett.

25. R., Tab 6, at p. 6.

26. Title 12A O.S.2001 §§1-9-101 et seq.

27. But see Dunbar v. Commercial Electrical Supply Co., 1912 OK 292, 123 P. 417, a case decided long before the Code, first enacted in 1952, wherein the Court considered an issue regarding which of two statutes (one applying a grace period, the other did not) applied to a promissory note. The Dunbar Court noted that the stock pledged to secure the promissory note had greatly declined in value. “True the pledgee did not sell the stock immediately after the expiration of the 24 hours; but this is a fact of which the [debtor] cannot complain. In fact, he sought the postponement of the sale himself . . . and it was doubtless due to this fact, in part at least, that the sale was not made at that time.” Id. at ¶ 6, 123 P. at 418. The Court, quoting Robinson v. Hurley, 11 Iowa 410, 79 Am. Dec. 497, stated: There is nothing in the language or terms of this receipt which obliged the plaintiff to sell these collaterals at the maturity of the note. . . . A postponement of the exercise of this right is a thing of which the debtor cannot very well complain; it only enlarges his opportunity to redeem, and thereby prevent any sacrifice that might result from a forced sale of the pledge. The depreciation in this case, which the [stock] in question suffered between the

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maturity of the note and the sale of the same, was without fault or power of prevention on the part of the [bank].

Id. at ¶ 7, 123 P. at 418.

28. Cf., see Citibank, N.A. v. Data Lease Financial Corp., 828 F.2d 686, 697 (11th Cir. 1987)(where the pledged stock represented a controlling interest of the corporation and the pledgee bank became involved in the management of the company, an exception to the general rule — that the care of a pledged chattel is confined solely to the physical care of it and that a pledgee is not liable for a decline in value — may allow a breach of duty to be found.) Such is not the case before this Court, however.

29. Likewise, see Federal Deposit Insurance Corporation v. Floyd, 854 F.Supp. 449, 452 (N.D.Tex. 1994)(bank as pledgee was under no duty to sell the depreciating collateral stock, absent a reasonable request by the pledgor: “[t]here is no reason why the secured party should have to bear the risk of a rise or fall in price. . . .”); Federal Deposit Insurance Corporation v. Webb, 464 F.Supp. 520, 526 (E.D. Tenn. 1978)(“The reader is referred to Restatement of Security . . . . Comment (a) . . . provides, ‘The pledgee is not liable for a decline in the value of the pledged instruments, even if timely action could have prevented such decline.’”); Federal Deposit Insurance Corporation v. Air Atlantic, Inc., 452 N.E.2d 1143, 1147 (Mass. 1983)(court rejected the debtor’s argument that summary judgment was improper on its counterclaim alleging commercial unreasonableness when pledged stock was not sold sooner and the market declined “ruinously . . . [and] notorious[ly] and a matter of public knowledge.”); Marriott Employees’ Federal Credit Union v. Harris, 897 S.W.2d 723 (Ct.App. Tenn. 1995)(citing Capos, the court rejected the debtor’s claim that the lender had a duty to monitor the market value of the pledged stock securing the loan.)

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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

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS SUMMARY OPINION Thursday, October 28, 2010

by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur in result; Lewis, J., concur in result; Smith, J., concur.

F-2009-915 — Appellant Vitaly Burleovitsh Kolosha was tried by jury and convicted of four counts of Lewd Molestation, Case No. CF2007-3180, in the District Court of Tulsa County. The jury recommended as punishment twenty (20) years imprisonment in each of Counts I, II and IV, and seven (7) years imprisonment in Count III. The trial court sentenced accordingly, ordering the twenty (20) year sentences (Counts I, II, and IV) run concurrently and the seven (7) year sentence (Count III) run consecutively. It is from this judgment and sentence that Appellant appeals. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur in result; Lewis, J., concur in result; Smith, J., recuse.

S-2009-944 — Appellee, Timothy Lynn Smith, was charged by Information February, 18, 2009, in the District Court of Roger Mills County, Case No. CF-2009-4, with Failure To Register As Sex Offender. The order of the District Court of Roger Mills County refusing to bind Appellee over on the offense of Failure to Register as a Sex Offender is AFFIRMED. The matter is REMANDED for further proceedings consistent with this Opinion. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur; Smith, J., concur.

C-2010-141 — Petitioner William Jackson Murray was charged in the District Court of Custer County, Case No. CF-2007-336 with First Degree Burglary (Count I) and Aggravated Assault and Battery (Count II), both counts After Former Conviction of a Felony. On October 10, 2008, Petitioner entered blind pleas of no contest in Count I and guilty in Count II. The Honorable Jacqueline Duncan, Associate District Judge, accepted the pleas and sentencing was set for November 14, 2008. On that date, Petitioner was sentenced to imprisonment for twenty-five (25) years in Count I and ten (10) years in Count II. The sentences were ordered to be served consecutively. On November 17, 2008, Petitioner filed a Motion to Withdraw Plea. The motion was denied without a hearing on November 24, 2008. Petitioner filed a Writ of Certiorari with this Court and on January 8, 2010, this Court granted the Writ and remanded the case to the District Court of Custer County for a hearing on the motion to withdraw. A hearing was held February 8, 2010, before the Honorable Charles L. Goodwin, District Judge. At the conclusion of the hearing, the motion to withdraw pleas was denied. It is that denial which is the subject of this appeal. Accordingly, the order of the district court denying Petitioner’s motion to withdraw pleas of guilty is AFFIRMED. Opinion

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Tuesday, November 2, 2010 C-2010-181 — Jeffrey Donald Patterson, Petitioner, entered blind pleas of guilty to the crimes of Unlawful Possession of a Controlled Dangerous Substance, After Former Conviction of Five Felonies (Count I), and Possession of Drug Paraphernalia (Count 2), in Case No. CF-2009-352 in the District Court of Garfield County. The Honorable Dennis W. Hladik, District Judge, accepted his pleas. Following completion of a presentence investigation report, Judge Hladik sentenced Patterson to sixteen years imprisonment on Count I and one year imprisonment on Count 2, with credit for time served. Judge Hladik ordered the sentences to be served concurrently with each other, but consecutively to his sentences in CF-2003-707 and CF-2004-180 which were revoked in full. Patterson’s timely motion to withdraw plea was denied after a hearing. He now appeals that denial and asks this Court to issue a Writ of Certiorari allowing him to withdraw his pleas and proceed to trial, or in the alternative, to favorable modify his sentence. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs in results; Lewis, J., concurs; Smith, J., concurs.

Monday, November 8, 2010 F-2010-110 — Appellant, Jason Nathaniel Holland, was tried by jury and convicted of

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Conjoint Robbery (Count I) (21 O.S.2001, § 800, After Two or more Previous Convictions, and misdemeanor Breaking and Entering(Count II) in the District Court of Ottawa County, Case Number CF-2009-188a. The jury recommended as punishment Forty-five (45) years imprisonment in Count I and One (1) year incarceration in the county jail and a Five Hundred dollar ($500.00) fine in Count II. The trial court sentenced accordingly, ordering the sentences to be served concurrently. It is from this judgment and sentence that Appellant appeals.

AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur in results; Smith, J., concur.

Wednesday, November 10, 2010 F-2008-592 — Kevin Terrell Stewart, Appellant, was tried by jury for the crime of Murder in the First Degree in Case No. CF-2007-3516 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment Life Imprisonment With the Possibility of Parole. The trial court sentenced accordingly. From this judgment and sentence Kevin Terrell Stewart has perfected his appeal.

The Judgment and Sentence of the District Court is AFFIRMED. Stewart’s Application for Evidentiary Hearing is DENIED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs in result; Lewis, J., concurs; Smith, J., concurs.

Friday, November 12, 2010 RE-2010-96 — Jeremy Allen Mitchell, Appellant, in the District Court of Tulsa County, Case No. CF-2008-1118, was found guilty of Trafficking in Illegal Drugs (Cocaine Base) and sentenced to ten (10) years imprisonment and a fine of $25,000.00, all suspended except for $500.00 of the fine. On January 22, 2010, the Honorable Clancy Smith, District Judge, revoked a five (5) year portion of the order suspending execution of Appellant’s sentence of imprisonment. Appellant appeals the final order of revocation. AFFIRMED. C. Johnson, P.J., concurs; A. Johnson, V.P.J., concurs; Lumpkin, J., concurs Lewis, J., concurs; Smith, J., recused.

F-2009-901 — Dustin C. Nakvinda, Appellant, was tried in a one-day bench trial for the crimes of Assault and Battery Upon Police Officer (Counts I, II, and III) in Case No. CF-2008572, in the District Court of Garfield County.

Nakvinda’s sentence was deferred on all three counts until September 28, 2014, and he was Vol. 81 — No. 31 — 11/20/2010

ordered to serve thirty (30) days in county jail with credit for time served, with all three counts to be served concurrently. From this judgment and sentence Dustin C. Nakvinda has perfected his appeal. Judgment and Sentence in this case is hereby AFFIRMED. However, this case is REMANDED to the district court for an order nunc pro tunc, clarifying that Nakvinda was found guilty after a bench trial, rather than as a result of a guilty plea. Opinion by: Smith, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur.

RE-2009-819 — Kimberly Evette Jackson, Appellant, entered a plea of guilty to Breaking and Entering without Permission, Count I, and Assault and Battery with a Dangerous Weapon, Counts II and II, in Creek County District Court Case No. CF-2004-228. Jackson was sentenced to one year incarceration on Count I and five years incarceration on Counts II and III. The sentences were ordered to run concurrently and suspended, pursuant to terms and conditions of probation. Subsequently, three years of Jackson’s suspended sentence were revoked by the Honorable Douglas W. Golden, District Judge. From this order of partial revocation, Jackson has perfect her appeal. The District Court’s order revoking part of Jackson’s suspended sentence is AFFIRMED. Opinion by Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur; Smith, J., concur.

C-2010-393 — Petitioner, Deral Everett Manley, Jr., was charged in the District Court of Tulsa County, Case No. CF-20099-1923, with Lewd Molestation. On February 2, 2010, Petitioner entered a blind plea of guilty before the Honorable Kurt G. Glassco, District Judge.

Petitioner’s plea was accepted and the matter was set for sentencing on March 22, 2010, pending receipt of the pre-sentence investigation report. The trial court sentenced Petitioner to eighteen (18) years imprisonment with all but the first fifteen (15) years suspended and a fine in the amount of $10,000.00. On March 26, 2010, Appellant timely filed his Application to Withdraw Plea. On April 8, 2010, the trial court appointed Appellant separate counsel for the purpose of his Application to Withdraw Plea.

At a hearing held on April 19, 2010, the trial court denied the application to withdraw the guilty plea. It is that denial which is the subject of this appeal. The order of the district court denying Petitioner’s application to withdraw plea of guilty is AFFIRMED. Opinion by:

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Lumpkin, J.; C. Johnson, P.J., concur in result; A. Johnson, V.P.J., concur; Lewis, J., concur in result; Smith, J., concur.

Tuesday, November 16, 2010 F-2009-613 — Jonny Lee Sargent, Appellant, was found guilty in a bench trial of rape by instrumentation of a person under the age of fourteen (14), in violation of 21 O.S. 1990, § 1114(A)(5), in the District Court of McCurtain County, Case No. CF-2007-394. The Honorable Michael DeBerry, Associate District Judge, set punishment at ten (10) years imprisonment with all but the first two (2) years suspended.

From this judgment and sentence, Appellant 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.

F-2009-620— Appellant, Steven Dwayne Bledsoe, was tried by jury and convicted of Trafficking in Illegal Drugs (cocaine) (Count I), After Former Conviction of a Felony and misdemeanor Unlawful Possession of Controlled Drug (marijuana) (Count II) in the District Court of Tulsa County, Case Number CF-20075850. The jury recommended as punishment Forty (40) years imprisonment and a Fifty thousand dollar ($50,000) fine in Count I and One (1) year incarceration in the county jail and a One thousand dollar ($1,000) fine in Count II. The trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this judgment and sentence that Appellant appeals. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur in results.

COURT OF CIVIL APPEALS (Division No. 1) Friday, October 29, 2010 107,470 — In the Matter of the Marriage of Bean. Gregory Alan Bean, Petitioner/Appellee, vs. Barbara Ann Bean, Respondent/Appellant.

Appeal from the District Court of Marshall County, Oklahoma. Honorable Charles Roberts, Judge. Respondent/Appellant Barbara Ann Bean appeals the property division award made in the Decree of Dissolution of Marriage, which ended the marriage of Wife and Petitioner/Appellee Gregory Alan Bean. The trial court’s decision is not clearly against the weight of the evidence, nor did the trial court abuse its discretion. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

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107,595 — Maxie Thompson and Patty Thompson, his wife, Plaintiffs/Appellants, vs. Walt Faglie d/b/a O.G. Sawmill, Defendant/Appellee. Appeal from the District Court of Cherokee County, Oklahoma. Honorable G. Bruce Sewell, Trial Judge. Appellants Maxie and Patty Sue Thompson, who have a remainder interest, appeal the entry of judgment in favor of Appellee Walt Faglie d/b/a O.G. Sawmill following summary proceedings in their lawsuit seeking damages for wrongful injury to timber arising from the harvesting of timber from their property. The trial court had concluded their suit was time-barred. HELD: Due to the live estate owner and Appellee’s failure to memorialize their agreement and Appellee’s failure to comply with 2 O.S.2001 § 16-64, Appellants were unable to ascertain Appellee’s identity until April 2006, thus creating a question of fact as to tolling of the statute of limitations defeating summary judgment. The judgment of the trial court is REVERSED and the case is REMANDED for further proceedings. Opinion by Hetherington, J.; Hansen, J., concurs; Buettner, P.J., dissents.

107,617 — (Cons. w/107,621) Kerri Robinson, Plaintiff/Appellee/Counter-Appellant, vs. Sunshine Homes, Inc., an Alabama Corporation, Defendant/Appellant/Counter-Appellee, and Broadway Homes, an Oklahoma Company; Bruce Brown, Defendants/Appellees/CounterAppellees, and Jeffery Goodrich; and Jack Meeks d/b/a Jack’s Mobile Home Service, Defendants.

Appeal from the District Court of Kay County, Oklahoma. Honorable Leslie D. Page, Trial Judge. Sunshine appeals [#107,617] the September 16, 2009, Final Journal Entry of Judgment and the October 19, 2009, Order denying its Motion for New Trial. Broadway and Brown appeal [#107,621] the September 16, 2009, Final Journal Entry of Judgment. The Supreme Court consolidated the appeals under #107,617 as the surviving appeal number. Robinson appeals the court’s decision refusing to submit the issue of punitive damages to the jury and the October 21, 2009, Order overruling her posttrial request for prejudgment interest and for penalties under the Oklahoma Consumer Protection Act. First, there was competent evidence Sunshine represented, through its limited warranty, the manufactured home was new although Sunshine knew it was reconditioned.

Sunshine’s written limited warranty, warranting the home as free from structural defects, could have misled Robinson to purchase the home to her detriment. There is competent evi-

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dence reasonably tending to support the special verdict against Sunshine for violation of 15 O.S.2001 §753(6). A jury found there was competent evidence that Broadway was in violation of the Act and Broadway does not argue this finding on appeal. This Court will not disturb the special verdict against Broadway for violation of the Act. Regarding Brown, it is undisputed Brown did not enter into any written or oral agreement with Robinson. Because there is an absence of proof showing Robinson’s right to recover on any of her claims against Brown, the trial court erred in refusing to direct a verdict in Brown’s favor on all of Robinson’s claims and in entering judgment on the jury verdict against him on all Robinson’s claims. Because there is competent evidence to support a special verdict for violations of the Act against Sunshine and Broadway, it is unnecessary to determine whether the trial court also properly entered judgment on general verdict against Sunshine and Broadway.

There is competent evidence to support the jury’s award of damages in the amount of $249,858.85. The trial court did not abuse its discretion in denying Sunshine a new trial based on its contention the award to Robinson was excessive. Robinson contends the trial court erred in failing to submit the issue of punitive damages to the jury. The court determined the requisite showing was not made.

The record on appeal does not contain competent evidence from which a reasonable jury could find reckless disregard sufficient to support an inference of evil intent and malice on the part of Defendants toward Robinson. We hold the trial court was correct to withhold the issue of punitive damages from jury consideration. The damage award was based on Robinson’s actual expenses in connection with her purchase of the manufactured home; they were damages for economic loss, not injury to her personal rights. The court did not err in denying Robinson’s request for prejudgment interest. The trial court heard all the evidence which resulted in the special verdict against Sunshine and Broadway for violation of the Act. In overruling Robinson’s request for penalties, it apparently did not find the acts or practices of Sunshine and Broadway also unconscionable.

Accordingly, this Court cannot say it was error for the trial court to overrule Robinson’s request for penalties under the Act. Robinson’s request for judgment on Sunshine’s supersedeas bond is granted and the matter is remanded to the trial court for determination of the amount of the judgment. AFFIRMED IN PART, REVERSED Vol. 81 — No. 31 — 11/20/2010

IN PART. Opinion by Hansen, J.; Buettner, P.J., concurs in part and dissents in part; Hetherington, J., concurs in part and dissents in part.

107,714 — Public Service Company of Oklahoma, Plaintiff/Appellee, vs. Duncan Public Utilities Authority, d/b/a Duncan Power & Light, Defendant/Appellant. Appeal from the District Court of Stephens County, Oklahoma.

Honorable Joe H. Enos, Trial Judge. Appellant, Duncan Public Utilities Authority, d/b/a Duncan Power and Light (DP&L) appeals from an order granting a temporary injunction. HELD: The seminal legal issue in this case is whether or not the entities involved in the change of electric utility service agreed by “mutual consent, in writing, to such transaction” because an electric utility service provider is prohibited from furnishing electric service to an electric consuming facility which is currently being served by another electric utility provider without the written consent of all entities involved in the transaction. 17 O.S.Supp.2001 § 190.7(A); 11 O.S.Supp.1998 § 21-121. There is no dispute there was no written agreement here demonstrating mutual consent to this change of service. The trial court correctly concluded the change violated both state law and Duncan Municipal Code Part 17, Chapter 4, §§ 17-401(B) and 17-402. To accept DP&L’s argument on the change of status quo would be to condone the wrongful act and confirm that status as the status to be preserved. Equity will not allow one with unclean hands to benefit from its wrongful act. The trial court did not abuse its discretion and the clear weight of the evidence demonstrates clearly and convincingly that temporary injunctive relief criteria were established. DP&L’s second proposition on appeal raises an in-depth constitutional challenge to the statutory scheme and argues they should not be applied in what DP&L characterizes as a pre-statute special circumstance, asserts there was a violation of Article 18, §§ 5(a) and 5(b) of the Oklahoma Constitution and argues municipal electors were deprived of the right to grant, extend or renew a franchise. This is a matter of great public interest which triggers the 12 O.S.Supp.2003 § 2024(D) mandates to give notice to the State Attorney General and permit state intervention. This was not done. As failure of constitutional due process is not in question, we decline to undertake analysis of the constitutionality of this statutory regulatory scheme. AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

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108,318 — Robert N. Preston, Plaintiff/ Appellee, vs. Jeff W. Bruns, PH.D. and Nicholas D. Saunders, Defendants/Appellants.

Appeal from the District Court of Tulsa County, Oklahoma. Honorable Deborah C. Shallcross, Judge. Defendants/Appellants Jeff W. Bruns, Ph.D. and Nicholas D. Saunders appeal from summary judgment entered in favor of Plaintiff/Appellee Robert M. Preston. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

108,348 — Deborah Ward, Petitioner, vs.

River Parks Authority, CompSource Oklahoma, f/k/a State Insurance Fund, and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of The Workers’ Compensation Court. Honorable William R. Foster, Trial Judge. In this Review Proceeding, Petitioner Deborah A. Ward challenges the Workers’ Compensation Court’s order denying Ward’s motion to reopen on a change of condition based on expiration of the statutory time period for reopening a claim. Respondents River Parks Authority and CompSource Oklahoma successfully argued that Ward sought to reopen more than three years after the last order substantially affecting the monetary, medical, or rehabilitative benefits conferrable and, as a result, the Workers’ Compensation Court was without jurisdiction to reopen her claim. SUSTAINED. Opinion by Buettner, P.J.; Hetherington, J., concurs; Hansen, J., dissents.

108,417 — Oklahoma Natural Gas, Inc., and/ or Oneok, Inc., Petitioners, vs. Stephen D. Messer, and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioners Oklahoma Natural Gas, Inc. and/or ONEOK (collectively, Employer) seek review of an order of a Workers’ Compensation Court, affirmed after modification by a three-judge panel, authorizing consequential psychological overlay treatment for Stephen Musser and denying Employer’s res judicata defense. Employer has not demonstrated the panel’s order is contrary to law or unsupported by competent evidence. SUSTAINED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

108,478 — Bernie Scott Stocking and Murelyn Stocking, Husband and Wife, Plaintiff/ Appellants, vs. Duane Waugh and Charles Waugh, Individually and in Partnership, Defendant/Appellees. Appeal from the District Court of Alfalfa County, Oklahoma. Honorable Loren 2730

Angle, Trial Judge. Appellants (Stocking) seek review of the trial court’s order granting summary judgment in favor of Appellees (Waugh) in the Stockings’ action for negligence. We reverse as to the Stockings’ claim against Charles Waugh, holding the Stockings established a contested issue of fact as to whether Charles exercised due care in supervising his child. We otherwise affirm the order and remand for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Hansen, J.; Hetherington, J., concurs; Buettner, P.J., concurs in part and dissents in part.

Wednesday, November 10, 2010 106,995 — In the Matter of the Estate of Florence H. Brown, Deceased. Most Worshipful Grand Lodge Ancient Free and Accepted Masons of the State of Oklahoma, Appellant, vs. Guthrie Scottish Rite a/k/a Guthrie Scottish Rite Charitable and Educational Foundation, Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Jesse Harris, Trial Judge. In this probate matter, Appellant Most Worhipful Grand Lodge Ancient Free and Accepted Masons of the State of Oklahoma appeals a trial court’s interlocutory order appealable by right, finding a latent ambiguity existed in the Deceased’s will concerning the identity of one of her residuary beneficiaries and Appellee Guthrie Scottish Rite a/k/a Guthrie Scottish Rite Charitable and Educational Foundation is the intended beneficiary. After review of the briefs and the record, we find no reversible error appears and the findings of fact and conclusions of law of the trial court adequately explain the decision.

The trial court’s order filed March 19, 2009 is affirmed under Okla.Sup.Ct.R. 1.202(d).

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

108,046 — In the Matter of Adoption of A.R.C Jeffrey Jones, Petitioner/Appellee, vs. Johnny Ray West, Respondent/Appellant. Appeal from the District Court of Rogers County, Oklahoma. Honorable Sheila Condren, Judge.

Respondent/Appellant Johnny Ray West (Father) appeals from the trial court’s judgment finding the minor child A.R.C eligible for adoption without Father’s consent. The trial court found Father had failed to maintain a relationship with the child and failed to support the child for 12 of the most recent 14 months, and therefore determined the child was eligible for adoption without Father’s consent. The judg-

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ment is supported by clear and convincing evidence and we affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

108,304— In the Matter of A.B.J. and S.S.J., Alleged Deprived Children. State of Oklahoma, Petitioner/Appellee, vs. Wendy Moore, Respondent/Appellant, and Frank Johnson, Respondent. Appeal from the District Court of Muskogee County, Oklahoma. Honorable Thomas Alford, Judge. Respondent/Appellant Wendy Moore (Mother) appeals from the trial court’s order which removed A.B.J. and S.S.J (Children) from Mother’s home and placed Children with Respondent Frank Johnson (Father) during a deprived proceeding. The trial court had authority to make such an order and Mother has failed to prepare a record supporting her claim for relief. We affirm.

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

(Division No. 2) Wednesday, October 27, 2010 107,195 — Cynthia Boatright, Plaintiff/ Appellee, v. Roger Butterfield, Richard R. Butterfield, and Maryann Butterfield, Defendants/ Appellants, v. David and Patt Butterfield, Intervenors/Appellants. Appeal from the District Court of Tulsa County, Hon. Carl Funderburk, Trial Judge. Defendants/appellants appeal the trial court’s judgment granting in part and denying in part plaintiff/appellee’s writ of habeas corpus to regain physical custody of her minor child. The trial court granted the writ to the extent that sole physical custody of the minor child was awarded to plaintiff/ appellee in Oklahoma, but denied the writ in part to allow the minor child to complete the 2008-09 school year in California. Defendants/ appellants also appeal the trial court’s order denying their motion for reconsideration of this judgment. Based on our review of the record, we find that the trial court did not abuse its discretion in awarding physical custody of the minor child to plaintiff/appellee following the 2008-09 school year and, in effect, finding that “the guardianship is no longer necessary.” 30 O.S.2001 § 4-804. A guardianship is not a proceeding for termination of parental rights; rather, a guardianship is temporary until such time as the factors leading to the guardianship are remedied. Matter of Guardianship of M.R.S., 1998 OK 38, ¶ 9, 960 P.2d 357. In addition, we find that the trial court did not err in denying defendants/appellants’ motion to Vol. 81 — No. 31 — 11/20/2010

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

107,493 — In the Matter of: S.B., E.B., H.J., J.B., N.B., and T.J., Alleged Deprived Children.

Brandon Brown and Donna Brown, Appellants, v. State of Oklahoma, Appellee. Appeal from the District Court of Cleveland County, Hon. Stephen W. Bonner, Trial Judge. Parents appeal from jury verdicts and the trial court’s orders terminating their parental rights based on Brandon Brown’s heinous and shocking child sexual abuse and Donna Brown’s failure to protect. They challenge the sufficiency of the evidence, evidentiary rulings, lack of a corrective plan, and whether they received adequate due process. We find no reversible error.

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

106,947 — State of Oklahoma ex rel. Department of Transportation, Plaintiff/Appellant, v.

Joleta Kay Ingersoll n/k/a Joleta Kay Spurlock a/k/a Joleta Kay Ingersoll Spurlock and Larry Dean Spurlock, wife and husband; Winthrop W. Ingersoll Trust Under Agreement dated June 1, 1995, Winthrop W. Ingersoll, Trustee; 1st Bank Oklahoma; and The Rogers County Treasurer, Defendants/ Appellees. Appeal from the District Court of Rogers County, Hon. Sheila A. Condren, Trial Judge. The State of Oklahoma ex rel. Department of Transportation (ODOT) appeals from the trial court’s judgment awarding compensation to Appellees (Landowners) in the amount of $277,000 for the taking by eminent domain of a portion of their land. ODOT also appeals from the trial court’s order awarding fees and costs to Landowners.

Based on our review of the record and applicable law, we affirm the trial court’s judgment, and we affirm in part, reverse in part, and remand with directions the trial court’s order.

The trial court’s order is reversed in part to the extent that it awards mediation costs and expenses and witness travel expenses. We remand with directions that the trial court enter an order awarding fees and costs in a manner consistent with section IV of the Opinion. We deny Landowners’ request for appealrelated attorney fees. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

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Thursday, October 28, 2010 108,203 — Vatterott College and Accident Fund Insurance Co., Petitioners, v. Andrea Fletcher and The Oklahoma Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court, Hon. Bob Lake Grove, Trial Judge. Vatterott College and Accident Fund Insurance Co. (collectively, Employer) appeal the order of the three-judge panel affirming in part and modifying in part the trial court’s order. The three-judge panel found, in pertinent part, that Andrea Fletcher (Claimant) sustained a compensable injury to her neck. On appeal, Employer argues that Claimant’s injury, although sustained in the course of her employment, did not arise out of her employment. Upon considering all the circumstances, we find competent evidence exists from which the three-judge panel reasonably could have inferred that a causal connection exists between the risk that resulted in Claimant’s injury and the conditions of Claimant’s employment. Therefore, we find that the threejudge panel’s order finding, in pertinent part, that Claimant’s injury arose out of her employment is supported by competent evidence. We sustain. SUSTAINED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

106,939 — Ted Evans, Jr., Plaintiff/Appellee, v. Oklahoma Employment Security Commission, Defendant/Appellant, and Board of Review, Appeal Tribunal, and the Oklahoma State Department of Health, Employer, Defendants. Appeal from the District Court of Comanche County, Hon. Mark R. Smith, Trial Judge. Appeal from the trial court’s order reversing the Board of Review’s decision that denied unemployment compensation benefits to Evans pursuant to 40 O.S.2001 § 2-406, because he was terminated for “misconduct.”

We find Evans’ actions do not disqualify him from unemployment benefits because they do not constitute “misconduct” as a matter of law.

AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Fischer, P.J., concurs, and Wiseman, C.J., concurs in result.

Friday, October 29, 2010 108,285 — Bronco Drilling, Petitioner, and Liberty Mutual Group, Interested Party, v. In the Matter of the Death of Gerald Watts and The Oklahoma Workers’ Compensation Court, Respondents. Proceeding to review an order of a three-judge panel of The Workers’ Compensa2732

tion Court, Hon. Mary A. Black, Trial Judge.

Bronco Drilling and its insurance carrier appeal a three-judge panel’s order sustaining in part and modifying in part a trial court decision.

The three-judge panel found that Gerald Watts (Deceased) suffered an injury in the form of heart failure arising out of and in the course of his employment and that he died as a result of this injury. The three-judge panel found this death to be compensable under the name of Deceased’s widow. Based on our review of the record and applicable law, and for the reasons set forth in the Opinion, we sustain the order of the three-judge panel. SUSTAINED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

Monday, November 15, 2010 108,150 — Richard L. Mumford, Jr., Plaintiff/ Appellant, v. The State of Oklahoma ex rel. The Board of Regents of Oklahoma Agricultural and Mechanical Colleges, a constitutional state agency, Defendant/Appellee. Appeal from an order of the District Court of Logan County, Hon. Donald L. Worthington, Trial Judge, granting summary judgment in favor of Defendant. Plaintiff alleged his employer terminated his employment because of his age and in retaliation for his protected activities in referring two employees to the Equal Employment Opportunity Commission (EEOC). Defendant presented evidence Plaintiff was not discharged due to his age but instead for his negligent supervision of an employee who embezzled approximately $30,000. We conclude Plaintiff’s evidence fails to place into controversy as a matter of disputed fact, either directly or by reasonable inference, either that his age was a significant factor in his termination or that the reasons given by Defendant for Plaintiff’s termination were a pretext for age discrimination.

Defendant also presented undisputed evidence that the person who terminated Plaintiff’s employment was unaware at the time Plaintiff was discharged that Plaintiff had referred two employees to the EEOC. Even taking the evidence in the light most favorable to Plaintiff, we cannot conclude that there is a dispute of material fact about whether he was discharged in retaliation for referring employees to the EEOC. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur.

Tuesday, November 16, 2010 106,398 — Pamela L. Casey, Petitioner/Appellant, vs. William F. Casey, Respondent/Appel-

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lee. Appeal from Order of the District Court of Garvin County, Hon. Charles M. Gray, Trial Judge, amending a divorce decree on remand from a prior appeal. Wife claims that the trial court erred in its valuation and distribution of marital property. Wife has demonstrated no basis for this Court to modify the terms of the amended Decree. There are no issues regarding alleged district court bias preserved for our review. AFFIRMED. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur.

(Division No. 3) Wednesday, October 27, 2010 107,034 — In the Matter of the Marriage of Jeremy Michael Lukowski, Petitioner/Appellant, vs. April Nicole Etzler, Respondent/ Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Geary Walke, Judge. Father seeks review of the trial court’s orders setting child support, determining arrearages, and awarding attorney’s fees to Mother. The trial court imputed to Father income commensurate with his income as an Air Force pilot. Although Father was dishonorably discharged from the armed services, Father tacitly conceded that the circumstances of his discharge affected mainly the pay he might receive, and did not completely foreclose his further employment as a pilot, and Father’s family owns a flying service in Florida where he had been employed. We cannot say the trial court abused its discretion in imputing income to Father commensurate with his income as an Air Force pilot. Father concedes that he was obligated, by the terms of the parties’ divorce decree, to pay approximately eighty-nine percent of the child’s daycare expenses. Mother testified to Father’s history of domestic violence for which he received treatment while in the service, and to a pattern of threatening and abusive contact by Father, by phone and e-mail, during the course of these proceedings, supporting issuance of a VPO. We discern no abuse of discretion by the trial court in allowing Mother her attorney’s fees. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur.

107,207 — In the Matter of D.H. and D.H., Children Under the Age of 18 Adjudicated Deprived as Defined by the Laws of Oklahoma, State of Oklahoma, Plaintiff/Appellee, vs.

Laura Teel-Howard, Defendant/Appellant.

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Kilgore, Judge. Mother seeks review of the trial court’s order granting judgment on a jury verdict to terminate her parental rights on the Petition of State. The record clearly reveals Mother received actual notice, at every critical stage, of the allegations sought to be proven, Mother at no time raised any challenge to the sufficiency of service of process on her lawyer, and, by appearing with counsel and proceeding without objection, waived any objection she might have had. The evidence in the present case establishes the likelihood of mental or physical harm to the children if returned to Mother’s custody and termination of her parental rights in the children’s best interests. The jury verdict and judgment thereon is supported by competent, clear and convincing evidence establishing the requisites for termination of Mother’s parental rights on account of her failure to correct the conditions leading to the deprived adjudication, and the consequent placement of her children in foster care for longer than the statutory period.

AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur.

107,344 — Great Plains National Bank, a national banking association, Plaintiff, vs. Jabez Farms, L.L.C., an Oklahoma limited liability company; and Ronald Ladd and Patricia Ladd, individuals, and sometimes doing business as Ronald Ladd and Patricia Ladd Joint Venture, Defendants, and Liberty National Bank, a national banking association, Additional Defendant/ Appellee, Stockmans Bank, an Oklahoma banking corporation; Liberty National Bank, a national banking association; Deer & Company, a Delaware corporation; and Farm Credit of Western Oklahoma, PCA, Additional Defendants, First State Bank of Altus, Intervening Defendant and Third-Party Plaintiff, vs. Barbee-Neuhaus Implement Co., Third-Party Defendant/Appellant, and R&P Farms, Inc.; Boaz Land and Cattle, LLC; Triple 777 Farm, LLC; Martha Farm, LLC; Quality Implement Co., Ryan Robbins; Timothy Wayne McDaniel; and Western Equipment, LLC, Danny McCustin, and Larry McLaughlin, Third-Party Defendants. Appeal from the District Court of Jackson County, Oklahoma. Honorable Allen McCall, Judge. This case arises from a foreclosure action initiated by Plaintiff (Great Plains) against Defendants (Ladd). Several other banks were joined in the action. Liberty National Bank (Liberty) filed a Third-Party Petition against Barbee-Neuhaus Implement Company (Barbee), alleging conversion of a certain John Deere tractor by Barbee. Liberty claimed a

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security interest in the tractor purchased by Barbee from Ladd and/or Boaz Land & Cattle, L.L.C. (Boaz) and/or the proceeds resulting from its resale. Liberty filed a Motion for Summary Judgment, asserting there was no genuine issue of material fact whether Barbee had exercised wrongful dominion and control over the tractor contrary to Liberty’s rights. The trial court granted summary judgment to Liberty, finding Barbee had actual knowledge that Ladd operated as Boaz Land & Cattle based upon previous transactions with Ladd/Boaz.

The court further found Liberty had filed a UCC financing statement naming Liberty as secured party, Boaz as debtor, and specifically identified the tractor as collateral. Additionally, the court found that the failure of Barbee to check UCC records under the debtor name of Boaz was negligent, and that Barbee failed to make Liberty a joint payee on the check issued for the purchase of the farm equipment at issue. In its entry of judgment against Barbee, the court ultimately concluded there was no genuine issue of material fact that Barbee wrongfully exerted dominion and control over the tractor proceeds inconsistent with Liberty’s rights and that Liberty was entitled to judgment as a matter of law against Barbee for conversion of property. Barbee appeals from the judgment entered in Liberty’s favor. Barbee primarily seeks to challenge the established fact of its purchase of the farm equipment from Boaz, which was previously admitted upon its failure to respond to Liberty’s Requests for Admissions. Barbee contends its status as an innocent purchaser protected it from liability for conversion due to lack of notice of Liberty’s security interest. Barbee argues it did not purchase anything from Boaz, but rather, purchased the tractor from the Martha Farms entity. Thus, because it claims it had no knowledge of the entity Boaz, it did not search UCC records under the debtor name Boaz. In this case, it is conclusively established (in accordance with the deemed admissions of Barbee) that Barbee purchased the farm equipment from Boaz, which accordingly establishes the fact that Barbee had actual knowledge of Boaz as the entity with which it was doing business.

Despite this knowledge, it is also conclusively established that Barbee failed to check records under the debtor name Boaz. Additionally, it is conclusively established that Barbee failed to make Liberty a joint payee on the checks to Defendant for the purchase of the tractor. The record reflects that if Barbee had checked the UCC records under the debtor name Boaz, it 2734

would have discovered Liberty’s properly perfected security interest in the tractor. Barbee thus had constructive notice of Liberty’s security interest in the farm equipment. Further, because Barbee failed to conduct a reasonably diligent inquiry of the UCC records, it is estopped from asserting the financing statement filed in this case was misleading and/or otherwise improperly filed. The material facts were conclusively established and show that Barbee exerted dominion and control over the tractor inconsistent with Liberty’s rights therein. Accordingly, Liberty was entitled to judgment as a matter of law on its conversion claim.

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

107,345 — Great Plains National Bank, a national banking association, Plaintiff, vs. Jabez Farms, L.L.C., an Oklahoma limited liability company; and Ronald Ladd and Patricia Ladd, individuals, and sometimes doing business as Ronald Ladd and Patricia Ladd Joint Venture, Defendants, and Liberty National Bank, a national banking association, Additional Defendant/Appellee, Stockmans Bank, an Oklahoma banking corporation; Deer & Company, a Delaware corporation; and Farm Credit of Western Oklahoma, PCA, Additional Defendants, First State Bank of Altus, Intervening Defendant and Third-Party Plaintiff, vs.

Western Equipment, LLC, Third-Party Defendant/ Appellant, and R&P Farms, Inc.; Boaz Land and Cattle, LLC; Triple 777 Farm, LLC; Martha Farm, LLC; Barbee-Neuhaus Implement Co.; Quality Implement Co., Ryan Robbins; Timothy Wayne McDaniel; and Western Equipment, LLC; Danny McCustin, and Larry McLaughlin, Third-Party Defendants. Appeal from the District Court of Jackson County, Oklahoma. Honorable Allen McCall, Judge.

This case arises from a foreclosure action initiated by Plaintiff (Great Plains) against Defendants (Ladd). Several other banks were joined in the action. Liberty National Bank (Liberty) filed a Third-Party Petition against Western Equipment, L.L.C. (Western), alleging conversion of a certain cotton picker by Western. Liberty claimed a security interest in the cotton picker purchased by Western from Ladd and/ or Boaz Land & Cattle, L.L.C. (Boaz) and/or the proceeds resulting from its resale. Liberty filed a Motion for Summary Judgment, asserting there was no genuine issue of material fact whether Western had exercised wrongful dominion and control over the cotton picker contrary to Liberty’s rights. The trial court

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granted summary judgment to Liberty finding Western had actual knowledge that Ladd operated as Boaz Land & Cattle based upon previous transactions with Ladd/Boaz. The court further found Liberty had filed a UCC financing statement naming Liberty as secured party, Boaz as debtor, and specifically identified the cotton picker as collateral. Additionally, the court found that the failure of Western to check UCC records under the debtor name of Boaz was negligent, and that Western failed to make Liberty a joint payee on the check issued for the purchase of the farm equipment at issue. In its entry of judgment against Western, the court ultimately concluded that there was no genuine issue of material fact that Western had wrongfully exerted dominion and control over the cotton picker proceeds inconsistent with Liberty’s rights and that Liberty was therefore entitled to judgment as a matter of law against Western for conversion of property.

Western appeals from the judgment entered in Liberty’s favor. Western primarily seeks to challenge the established fact of its purchase of the farm equipment from Boaz, which was previously admitted upon its failure to respond to Liberty’s Requests for Admissions. Western contends its status as an innocent purchaser protected it from liability for conversion due to lack of notice of Liberty’s security interest.

Western argues it did not purchase anything from Boaz, but rather, purchased the cotton picker from Ronald and Patricia Ladd Joint Venture. Thus, because it claims it had no knowledge of the entity Boaz, it did not search UCC records under the debtor name Boaz. In this case, it is conclusively established (in accordance with the deemed admissions of Western) that Western purchased the farm equipment from Boaz, which accordingly establishes the fact that Western had actual knowledge of Boaz as the entity with which it was doing business. Despite this knowledge, it is also conclusively established that Western failed to check records under the debtor name Boaz. Additionally, it is conclusively established that Western failed to make Liberty a joint payee on the check to Defendant for the purchase of the cotton picker. The record reflects that if Western had checked the UCC records under the debtor name Boaz, it would have discovered Liberty’s properly perfected security interest in the cotton picker. Western thus had constructive notice of Liberty’s security interest in the cotton picker. Further, because Western failed to conduct a reasonably diligent inquiry of the UCC records, it is estopped from assertVol. 81 — No. 31 — 11/20/2010

ing the financing statements filed in this case were misleading and/or otherwise improperly filed. The material facts were conclusively established and show that Western exerted dominion and control over the cotton picker inconsistent with Liberty’s rights therein. Accordingly, Liberty was entitled to judgment as a matter of law on its conversion claim. AFFIRMED. Opinion

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

107,939 — In the Matter of M.H., a Deprived Child, State of Oklahoma, Petitioner/Appellee, vs. Tiffany Smith, Respondent/Appellant.

Appeal from the District Court of Tulsa County, Oklahoma. Honorable Edward J. Hicks, III, Judge. Appellant (Mother) appeals an order denying her Motion for New Trial and Motion to Vacate the order terminating Mother’s parental rights to her minor child. When the termination proceeding was set for trial Mother was served by publication. She failed to appear at trial and her parental rights were ordered terminated. Mother contends she was denied due process based upon lack of actual notice of the Motion to Terminate or the termination hearing. Although Mother was represented by counsel, Appellee (State) concedes it did not provide a copy of the Notice of Hearing and Summons to Mother’s attorney. State argues that notice to Mother’s attorney was not required pursuant to 10A O.S. Supp. 2009 §1-4905. Although true, this argument misses the point. This statute and its predecessor, 10 O.S. 2001 §7006-1.2, require personal service by summons on the parent whose rights are being terminated. Those specific statutes do not address the situation where that parent is already represented by an attorney who has entered his appearance in the case. In no way do those statutes even imply that notice to an attorney of record is not required. Although the attorney was not required to be “served” with the summons and notice of hearing as the State was required to “serve” Mother, he was entitled to a copy of anything filed in the case, especially the motion to terminate his client’s parental rights and the notice of the hearing on that motion. Because of the fundamental right which parents have in the custody of their children and the gravity of the sanction imposed by termination, there is no substitute to fully complying with all procedural safeguards. Terminating a mother’s parental rights is too serious to permit procedural shortcuts. REVERSED AND REMANDED. Opinion by Mitchell, J.; Bell, V.C.J., concurs; Joplin, P.J., dissents.

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108,252 — In the Matter of J.C., a Deprived Child, the State of Oklahoma, Petitioner/ Appellee, vs. Regina Campbell, Respondent/ Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Roger Stuart, Judge. Appellant (Mother) appeals a post-judgment denial of her Motion to Vacate the earlier termination of her parental rights to J.C., the youngest of her three children. The underlying termination order, which is not appealed from, is referred to by the parties as a default judgment because Mother failed to appear for the scheduled trial. Mother contended that although she was aware of the trial date, she was unable to arrange transportation; she tried unsuccessfully to contact DHS in order to request their assistance; she has a meritorious defense; and that default judgments are not favored. Mother argues on appeal that denying her motion to vacate is a violation of due process depriving her of the constitutionally protected liberty interest she has in her parent/child bond. She also alleges violations of statutory rights, that default judgments are not favored, and termination was not shown to be in the best interests of the child. Mother’s testimony directly conflicts with that of the case worker who testified she visited Mother at Mother’s home twelve days prior to the date of trial at which time Mother, who was working on a truck, told her that her motorcycle had been repossessed. The case worker testified she offered Mother transportation assistance, but Mother assured her that the truck would be “up and running.” The case worker also testified she received no call from Mother between the time of her in-home visit and the scheduled trial date. Upon our careful review of the record, we find clear and convincing evidence supports the trial court’s determination that termination of Mother’s parental rights is in the best interest of the child. No abuse of discretion is found in the denial of Mother’s Motion to Vacate. Mother’s request for oral argument is denied. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur.

Wednesday, November 10, 2010 106,463 — In Re the Marriage of Kursten G. Remer and Wesley K. Remer: Kursten G. Remer, Petitioner/Appellant, vs. Wesley K. Remer, Respondent/Appellee. Appeal from the District Court of Pontotoc County, Oklahoma.

Honorable William C. Hetherington, Jr., Judge.

Petitioner (Wife) appeals a post-divorce decision of the trial court ordering Respondent (Husband) to pay Wife an arrearage of 2736

$19,577.06, part of Husband’s military retirement that had previously been awarded to Wife. Wife argues the trial court erroneously denied her claim for damages arising from Husband’s alleged breach of fiduciary duty/ breach of trust for not paying the share of military retirement benefits awarded to her during the pendency of the earlier appeal of the court’s property division determination. Wife also argues the court erred in failing to award her costs and attorney fees. While Wife argues Husband kept his retirement a secret for a year and breached the fiduciary duty he owed as the trustee of the constructive trust created in the Military Order by intentionally withholding payment of her portion of the retirement benefit, and wrongfully converting it to his own use, the court’s order makes no express finding on the breach of trust, and/or conversion claims (nor did Wife request specific findings of fact and conclusions of law). Because the trial court denied her claim for damages, we can reasonably infer that the trial court denied the breach of trust and/or conversion claims. Aside from Wife’s allegation of Husband’s malfeasance, the record does not disclose evidence of conversion by Husband.

Husband voluntarily initiated payments (albeit with an erroneous deduction for the VA waiver) directly after mandate issued in the appeal of the property division. While Wife claims an entitlement to damages for breach of trust beyond an arrearage award, we note that even if the trial court were to find a breach of trust here, its decision to award a remedy for breach of trust is purely discretionary. The court correctly awarded Wife the arrearage of $19,577.06, plus interest on the award as previously awarded in the court’s April 2008 order. We find no abuse in the court’s failure to award Wife “use of funds” damages. The failure to award Wife additional compensation arising from Husband’s “use of funds” to which she was entitled was clearly within the court’s discretion, equitable given the facts of this case and not clearly against the weight of the evidence. Wife failed to file a request for attorney fees and costs pursuant to 12 O.S. §696.4(B). We will not entertain that issue for the first time on appeal. Furthermore, Wife’s request for appeal-related attorney fees is denied. The court’s order of September 28, 2008 is AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur.

107,353 — Bobby Ray Dunlap, Jr., Petitioner, vs. The Multiple Injury Trust Fund, and The Workers’ Compensation Court, Respondents.

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Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation Court. Claimant seeks review of an order of a three-judge panel of the Workers’ Compensation Court denying his claim to benefits against the Respondent Multiple Injury Trust Fund (Fund) for permanent total disability (PTD) as a result of the combination of disabilities. There is competent evidence in the record to support the three-judge panel’s order denying the claim for PTD benefits. The finding of the trial court concerning Claimant’s continued work after the latest injury is consequently irrelevant. SUSTAINED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur.

107,857 ­ — Chet R. Garretson, Petitioner/ Appellant, vs. Tonya M. Garretson, Respondent/Appellee. Appeal from the District Court of Garfield County, Oklahoma. Honorable Dennis Hladik, Judge. Appellant (Father) appeals the trial court’s order denying his motion to modify custody and application for citation of contempt against Appellee (Mother).

The parties have been embattled in a prolonged and bitter custody dispute for many years.

Child custody is a matter of equitable cognizance and is left to the sound discretion of the trial court. We will not disturb the trial court’s decision regarding a motion to modify custody unless it is clearly against the weight of the evidence so as to constitute an abuse of discretion. In reviewing a trial court’s custody order, we will give deference to the trial court’s findings since the trial court is better able to determine controversial evidence by its observation of the parties, the witnesses and their demeanor. We find the trial court properly applied the elements of Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482 in rendering its decision. The court found the first two elements of Gibbons were met. The record supports this finding. We cannot say the trial court abused its discretion when it determined the minor children would not be substantially better off, with respect to their temporal, mental and moral welfare, if the requested change in custody were ordered.

Father argues, for the first time on appeal, that the trial judge had the duty to disqualify himself because the trial court’s rulings caused doubt as to the judge’s partiality, bias or prejudice and deprived Father of a trial by an unbiased judge. A litigant may not urge such grounds for disqualification for the first time on appeal unless the demands of public policy require disqualification. The record fails to contain any such objection or request for disqualiVol. 81 — No. 31 — 11/20/2010

fication or any evidence of a public policy concern. Father waived any such objection by failing to timely raise the disqualification issue.

The trial court’s order denying Father’s motion to modify custody and denying Father’s application for citation of contempt is AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur.

108,274 — In the Matter of the Guardianship of S.C., Abel Garza, Petitioner/Appellant, vs.

Nona O. Deming, Respondent/Appellee.

Appeal from the District Court of McClain County, Oklahoma. Honorable Charles Gray, Judge. Appellant (Father) appeals from the trial court’s order denying his motion to terminate the guardianship of his minor child and modifying his visitation. Appellee is the maternal grandmother and Guardian. Father has the burden of showing the condition which resulted in the establishment of the guardianship – Father’s lack of a relationship with his child – has changed and he is now able to take care of his child. The clear and convincing evidence demonstrated the annual summer visitations resulted in the establishment of a positive relationship between Father and the child. Such evidence further demonstrated Father is able to provide a loving and stable home for his child. The trial court’s denial of Father’s request to terminate the guardianship was against the clear weight of the evidence. We reverse the trial court’s journal entry and remand this cause with directions to enter a judgment terminating Grandmother’s guardianship and granting Father custody of his child. REVERSED AND REMANDED. Opinion by Bell, V.C.J.; Mitchell, J., concurs; Joplin, P.J., dissents.

(Division No. 4) Tuesday, October 19, 2010 107,839 — Oklahoma Gas and Electric Company, an Oklahoma corporation, Plaintiff/ Appellee, vs. Gerald A. Beecher and Lucy Beecher, husband and wife, Defendants/ Appellants, and Board of County Commissioners of Kingfisher County, a body corporate and politic; and Karen Mueggenborg, Kingfisher County Treasurer, Defendants. Appeal from Order of the District Court of Kingfisher County, Hon. Tom L. Newby, Trial Judge, denying Defendant Landowners’ exception to the Report of Commissioners in an action by Plaintiff, a public utility company, to condemn rightof-way easements for the construction of electrical transmission lines to wind farms in northwestern Oklahoma. Landowners argued

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that the project does not have a public purpose because most of its electrical transmission capacity will be used by out-of-state customers, and because the transmission line will actually be subject to the control of the Southwest Power Pool, a federally regulated, regional transmission organization. Even if OG&E’s customers use only 22 percent of the lines’ capacity by 2020, Landowners did not present evidence that the remaining 78 percent would actually be used by out-of-state customers, or that OG&E customers would not ultimately use most of the line capacity over the 50-year to 60-year effective life of the project. In fact, Oklahoma consumers will benefit from the availability of more reliable, efficient, and economical electricity due to regional control and tariff reimbursements by any out-of-state entities using the lines. In addition, in cases involving electrical power, the authority to condemn is generally approved even where condemnation is sought by an intermediate agency that does not control the use of the proposed project, as long as the ultimate use is public. We hold that the primary intended beneficiaries of the project are Plaintiff’s customers, and that the project constitutes a public use. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

107,647 — Oklahoma Gas and Electric Company, an Oklahoma corporation, Plaintiff/ Appellee, vs. Jasp, Inc., an Oklahoma corporation, Defendant/Appellant, and Jim Olig and Ed Olig; Board of County Commissioners of Kingfisher County, a body corporate and politic; and Karen Mueggenborg, Kingfisher County Treasurer, Defendants. Appeal from Order of the District Court of Kingfisher County, Hon. Tom L. Newby, Trial Judge, denying Defendant Landowner’s exception to the Report of Commissioners in an action by Plaintiff, a public utility company, to condemn right-of-way easements for the construction of electrical transmission lines to wind farms in northwestern Oklahoma. Landowner argued that the project does not have a public purpose because most of its electrical transmission capacity will be used by out-of-state customers, and because the transmission line will actually be subject to the control of the Southwest Power Pool, a federally regulated, regional transmission organization. Even if OG&E’s customers use only 22 percent of the lines’ capacity by 2020, Landowner did not present evidence that the remaining 78 percent would actually be 2738

used by out-of-state customers, or that OG&E customers would not ultimately use most of the line capacity over the 50-year to 60-year effective life of the project. In fact, Oklahoma consumers will benefit from the availability of more reliable, efficient, and economical electricity due to regional control and tariff reimbursements by any out-of-state entities using the lines. In addition, in cases involving electrical power, the authority to condemn is generally approved even where condemnation is sought by an intermediate agency that does not control the use of the proposed project, as long as the ultimate use is public. We hold that the primary intended beneficiaries of the project are Plaintiff’s customers, and that the project constitutes a public use.

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

107,648 — Oklahoma Gas and Electric Company, an Oklahoma corporation, Plaintiff/ Appellee, vs. Arnold L. Smith and Phyllis J. Smith, Trustees or their Successors in Trust under the Arnold L. Smith and Phyllis J. Smith Living Trust Dated April 27, 1988, Defendants/ Appellants, and Board of County Commissioners of Kingfisher County, a body corporate and politic; and Karen Mueggenborg, Kingfisher County Treasurer, Defendants. Appeal from Order of the District Court of Kingfisher County, Hon. Tom L. Newby, Trial Judge, denying Defendant Landowners’ exception to the Report of Commissioners in an action by Plaintiff, a public utility company, to condemn rightof-way easements for the construction of electrical transmission lines to wind farms in northwestern Oklahoma. Landowners argued that the project does not have a public purpose because most of its electrical transmission capacity will be used by out-of-state customers, and because the transmission line will actually be subject to the control of the Southwest Power Pool, a federally regulated, regional transmission organization. Even if OG&E’s customers use only 22 percent of the lines’ capacity by 2020, Landowners did not present evidence that the remaining 78 percent would actually be used by out-of-state customers, or that OG&E customers would not ultimately use most of the line capacity over the 50-year to 60-year effective life of the project. In fact, Oklahoma consumers will benefit from the availability of more reliable, efficient, and economical electricity due to regional control and tariff reimbursements by any out-of-state entities using the lines. In addition, in cases involv-

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ing electrical power, the authority to condemn is generally approved even where condemnation is sought by an intermediate agency that does not control the use of the proposed project, as long as the ultimate use is public. We hold that the primary intended beneficiaries of the project are Plaintiff’s customers, and that the project constitutes a public use. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

107,649 — Oklahoma Gas and Electric Company, an Oklahoma corporation, Plaintiff/ Appellee, vs. Wade L. Patterson and Linda Patterson, husband and wife, Defendants/Appellants, and Kenneth Yost; Board of County Commissioners of Kingfisher County, a body corporate and politic; and Karen Mueggenborg, Kingfisher County Treasurer, Defendants.

Appeal from Order of the District Court of Kingfisher County, Hon. Tom L. Newby, Trial Judge, denying Defendant Landowners’ exception to the Report of Commissioners in an action by Plaintiff, a public utility company, to condemn right-of-way easements for the construction of electrical transmission lines to wind farms in northwestern Oklahoma. Landowners argued that the project does not have a public purpose because most of its electrical transmission capacity will be used by out-ofstate customers, and because the transmission line will actually be subject to the control of the Southwest Power Pool, a federally regulated, regional transmission organization. Even if OG&E’s customers use only 22 percent of the lines’ capacity by 2020, Landowners did not present evidence that the remaining 78 percent would actually be used by out-of-state customers, or that OG&E customers would not ultimately use most of the line capacity over the 50-year to 60-year effective life of the project. In fact, Oklahoma consumers will benefit from the availability of more reliable, efficient, and economical electricity due to regional control and tariff reimbursements by any out-of-state entities using the lines. In addition, in cases involving electrical power, the authority to condemn is generally approved even where condemnation is sought by an intermediate agency that does not control the use of the proposed project, as long as the ultimate use is public. We hold that the primary intended beneficiaries of the project are Plaintiff’s customers, and that the project constitutes a public use. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Vol. 81 — No. 31 — 11/20/2010

Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

107,651 — Oklahoma Gas and Electric Company, an Oklahoma corporation, Plaintiff/ Appellee, vs. Sandra Niles, Defendant/Appellant, and Kenneth Yost; Board of County Commissioners of Kingfisher County, a body corporate and politic; and Karen Mueggenborg, Kingfisher County Treasurer, Defendants.

Appeal from Order of the District Court of Kingfisher County, Hon. Tom L. Newby, Trial Judge, denying Defendant Landowner’s exception to the Report of Commissioners in an action by Plaintiff, a public utility company, to condemn right-of-way easements for the construction of electrical transmission lines to wind farms in northwestern Oklahoma. Landowner argued that the project does not have a public purpose because most of its electrical transmission capacity will be used by out-ofstate customers, and because the transmission line will actually be subject to the control of the Southwest Power Pool, a federally regulated, regional transmission organization. Even if OG&E’s customers use only 22 percent of the lines’ capacity by 2020, Landowner did not present evidence that the remaining 78 percent would actually be used by out-of-state customers, or that OG&E customers would not ultimately use most of the line capacity over the 50-year to 60-year effective life of the project. In fact, Oklahoma consumers will benefit from the availability of more reliable, efficient, and economical electricity due to regional control and tariff reimbursements by any out-of-state entities using the lines. In addition, in cases involving electrical power, the authority to condemn is generally approved even where condemnation is sought by an intermediate agency that does not control the use of the proposed project, as long as the ultimate use is public. We hold that the primary intended beneficiaries of the project are Plaintiff’s customers, and that the project constitutes a public use. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

Thursday, October 21, 2010 107,447 — In the Matter of K.D. and D.D., Alleged Deprived Children. Kathleen Dutton, Appellant, v. State of Oklahoma, Appellee.

Appeal from the District Court of Oklahoma County, Hon. Stephen P. Alcorn, Trial Judge.

Kathleen Dutton (Mother) appeals from the trial court’s July 21, 2009, order terminating her

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parental rights in her minor children, KD and DD, following a jury trial. State sought termination of Mother’s rights pursuant to 10 O.S.2001, § 7006-1.1(A)(5) and (A)(15), alleging Mother had failed to correct the conditions which led to the children’s deprived status and that the children had been in the custody of the Department of Human Services (DHS) for fifteen (15) of the most recent twenty-two (22) months, respectively. Based upon our review of the facts and applicable law, we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

Friday, October 22, 2010 108,214 — McCoy Tree Surgery and American Interstate Insurance Company, Petitioners, vs. Andrew B. Cooper and The Workers’ Compensation Court, Respondents. Proceeding to review an Order of a Three-Judge Panel of The Workers’ Compensation Court, Hon. William R. Foster, Trial Judge, affirming an award of temporary total disability benefits to Claimant. Claimant’s injuries are within the 85 O.S. Supp. 2009 § (3)(d)(2) exclusion for soft tissue injuries. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

107,766 — Sam and Nicole Craven, Plaintiffs/Appellees, v. Southcreek Construction, L.L.C., Defendant/Appellant, and Logworks, Etc., L.L.C., and Robert Altmiller, Defendants.

Appeal from an Order of the District Court of Caddo County, Hon. Richard Van Dyck, Trial Judge, denying Southcreek’s motion to compel arbitration and to stay the legal proceedings pending arbitration. The primary issue on appeal is whether the trial court erred in determining that it must make an initial determination of whether there is valid contract before addressing whether the dispute is governed by the arbitration clause contained in the Construction Contract. This Court finds the trial court did not err in finding it was required to make a threshold determination of contract validity due to fraud before addressing the arbitration issue. This Court therefore finds the trial court did not err in denying Southcreek’s motion to compel arbitration and to stay the

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legal proceedings before the trial court.

AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., concurs, and Goodman, J., concurs in result.

107,563 — Kathy Plecinski, Plaintiff/Appellee, vs. Ronald W. Plecinski, Defendant/Appellant. Appeal from the District Court of Tulsa County, Hon. Carlos J. Chappelle, Trial Judge, awarding past due child support and past due medical and child care expenses to Plaintiff.

The case was initially assigned to one judge, and then heard by the above-named judge.

Defendant asserts the second judge had no authority to hear the case. However, Defendant waived the matter by failing to object at the trial court level. This matter is not jurisdictional, because jurisdiction lies in the district court. As for the trial court’s award, no abuse of discretion was shown. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

107,205 — In Re: The Marriage of: Nancy Elizabeth Hilterman, Petitioner/Appellee, v.

John William Hilterman, Jr., Respondent/ Appellant. Appeal from an Order of the District Court of Oklahoma County, Hon. Allen J. Welch, Jr., Trial Judge. The trial court respondent, John William Hilterman (Husband), appeals certain provisions of a Decree of Dissolution of Marriage entered in an action instituted by the petitioner, Nancy Elizabeth Hilterman (Wife). Husband presents four issues in his appeal. He maintains that the trial court erred in treating property in South Carolina and the entirety of a Morgan Stanley account as joint property. Next, he challenges the award and amount of support alimony. Last, Husband contends that the trial court erred by assessing previously ordered temporary attorney fees of $10,000.00, against his share of the Morgan Stanley account. Both parties seek appeal-related attorney fees. The decision of the trial court on all issues was not against the clear weight of the evidence nor contrary to law.

Under the circumstances in this case, and after balancing the equities, this Court finds that both parties shall bear their own appeal-related attorney fees. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

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POSITIONS AVAILABLE 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.

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POSITIONS AVAILABLE

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