Volume 81 u No. 26 u October 2, 2010
2130
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
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 OCTOBER 2010 5 6 8 12 14 15 18 19 20 21
OBA New Lawyer Experience; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jim Calloway (405) 416-7051 OBA Clients’ Security Fund Committee Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Micheal Salem (405) 366-1234 OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly K. Hays (918) 592-2800 Death Oral Argument; Kevin Ray Underwood – D-2008-319;10 a.m.; Court of Criminal Appeals Courtroom OBA 2011 Budget Public Hearing; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Craig Combs (405) 416-7040 OBA Board of Governors Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: John Morris Williams (405) 416-7000 Association of Black Lawyers Meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donna Watson (405) 721-7776 Lawyers Helping Lawyers Assistance Program Training; 1 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donita Douglas (405) 416-7028 OBA Military Assistance Task Force Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Dietmar Caudle (580) 248-0202 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 OBA Civil Procedure Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: James Milton (918) 591-5229 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 OBA Access to Justice Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Kade A. McClure (580) 248-4675 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Jack Brown (918) 581-8211 For more events go to www.okbar.org/calendar
The Oklahoma Bar Association’s official website:
www.okbar.org
NOTICE of change of address (which must be in writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads, news stories, articles and all mail items should be sent to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036.
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2010 2008 Oklahoma Bar Association. The design of the scales and the “Oklahoma Bar Association” encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
Oklahoma Bar Association (405) 416-7000 Toll Free (800) 522-8065 FAX (405) 416-7001 Continuing Legal Education (405) 416-7006 Ethics Counsel (405) 416-7055 General Counsel (405) 416-7007 Law-related Education (405) 416-7005 Lawyers Helping Lawyers (800) 364-7886 Mgmt. Assistance Program (405) 416-7008 Mandatory CLE (405) 416-7009 OBJ & Communications (405) 416-7004 Board of Bar Examiners (405) 416-7075 Oklahoma Bar Foundation (405) 416-7070
The Oklahoma Bar Journal (ISSN 0030-1655) is published three times a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER: Send address changes to THE OKLAHOMA BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscriptions are $55 per year except for law students registered with the Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.
Vol. 81 — No. 26 — 10/2/2010
The Oklahoma Bar Journal
2131
OBA Exclusive color
lithograph • available now • 11” x 15” color lithograph • t o view in color see www.okbar.org •$ 25 for unsigned print or $45 for signed print, plus $6 certified mail costs (no mailing charges if picked up at Oklahoma Bar Center)
Name _ ______________________________________ OBA #_ ______________________________________ Street Address* _______________________________ City_________________State_____ Zip ___________
Make check payable to the OBA and mail entire page to: OBA, P.O. Box 53036 Oklahoma City, OK 73152-3036 For p Visa or p Master Card Fax: (405) 416-7001 Credit Card # _________________________________ Exp. Date ___________________________________
____ unsigned print(s) @ $25 each $ ________ plus $6 certified mail costs if OBA is to mail
Authorized Signature
____ signed print(s) @ $45 each $ ________ plus $6 certified mail costs if OBA is to mail
( no mailing charges if picked Total $ ________ up at Oklahoma Bar Center)
2132
______________________________________________ Questions: call Debbie Brink, (405) 416-7014 or E-mail debbieb@okbar.org
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
Oklahoma Bar Association
table of
contents October 2, 2010 • Vol. 81 • No. 26
page 2131 Events Calendar 2134 Index to Court Opinions 2135 Court of Civil Appeals Opinions 2148 Annual Meeting 2152 OBA Resolutions 2164 Disposition of Cases Other Than by Publication 2172 OBA Board of Governors Vacancies and Nominating Petitions
2174 New Attorneys Take Oath 2177 2011 OBA Proposed Budget
Vol. 81 — No. 26 — 10/2/2010
The Oklahoma Bar Journal
2133
Index To Opinions Of Court of Civil Appeals 2010 OK CIV APP 89 LINDA STEWART, Plaintiff/Appellant, vs. NYT BROADCAST HOLDINGS, L.L.C., and GRIFFIN COMMUNICATIONS, L.L.C., Defendants/Appellees. Case No. 107,015........................................................................................................................ 2135 2010 OK CIV APP 90 J. LYNN BOCK, et al., Plaintiffs/Appellees, vs. ROBERT E. SLATER, JR., et al., Defendants/Appellants, and WOODWARD HOTEL CORPORATION, An Oklahoma Corporation d/b/a NORTHWEST INN OF WOODWARD, OKLAHOMA, et al., Nominal Defendants/Appellants, and CHARLOTTEVILLE HOTEL CORPORATION, an Oklahoma Corporation, et al., Nominal Defendants. Case No. 107,562 (consolidated with Case No. 107,566)............................................................................... 2137 2010 OK CIV APP 88 MARK SHAPIRO, Petitioner, vs. CITY BEVERAGE CO. LLC, CNA INSURANCE GROUP, and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 107,784..................................................................................................................... 2141 2010 OK CIV APP 91 TOM CHENOWETH, Plaintiff/Appellant, vs. CITY OF MIAMI, Defendant/Appellee. Case No. 107,567......................................................................................... 2144
2134
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
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 89 LINDA STEWART, Plaintiff/Appellant, vs. NYT BROADCAST HOLDINGS, L.L.C., and GRIFFIN COMMUNICATIONS, L.L.C., Defendants/Appellees. Case No. 107,015. August 23, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE NOMA D. GURICH, JUDGE AFFIRMED Babette Patton, Breathwit & Patton, Oklahoma City, Oklahonma, for Appellant, Robert D. Nelon, Jon Epstein, Hall, Estill, Hardwick, Gable, Golden, & Nelson, Oklahoma City, Oklahoma, for Appellee NYT Broadcast Holdings, L.L.C., S. Douglas Dodd, Michael Minnis, Jon E. Brightmire, Doerner, Saunders, Daniel & Anderson, Tulsa, Oklahoma, for Appellee Griffin Television OKC, L.L.C. Larry Joplin, Presiding Judge: ¶1 Plaintiff/Appellant Linda Stewart (Stewart) seeks review of the trial court’s order denying her motion for new trial after a jury verdict for Defendants/Appellees NYT Broadcast Holdings and Griffin Communications (KFOR and KWTV, respectively) on Plaintiff’s claims for defamation and false light invasion of privacy. In this appeal, Stewart asserts the broadcasts aired by Appellees were false and unprivileged, constituted libel per se, and the trial court erred in denying Stewart’s motion for a new trial. Having reviewed the record, we find no error as alleged. We consequently hold the order of the trial court and the jury verdict should be, and hereby is, affirmed. ¶2 On July 3, 2005, Roger Tyler (Tyler) reported to the Norman Police Department (NPD) that his wallet containing credit cards, a debit card, and other items was stolen from his vehicle. Shortly after the theft, Tyler cancelled his credit and debit cards and asked his bank for records indicating where his ATM card was used. The records showed someone unsuccessfully attempted to use the debit card at an ATM Vol. 81 — No. 26 — 10/2/2010
inside the Goldsby Gaming Center (GGC) at 11:06 A.M. that same day, as well as other attempted uses. ¶3 Tyler relayed the information to NPD, who assigned Detective Ben Davison to the case. On July 8, 2005, Detective Davison requested surveillance video of the ATM in GGC from 11:00 A.M. to 11:10 A.M. Unfortunately, GGC gave Detective Davison video from a different time frame showing one unidentified woman using a card at the ATM. The NPD showed the video to Tyler, who did not recognize the woman. ¶4 On July 27, 2005, Lieutenant Tom Easley1 issued a press release in conjunction with the NPD’s Crime Stoppers Program, and requested the media’s help in circulating the surveillance video to the public and identify the female suspect. Easley also spoke to various reporters on camera, including KFOR’s Jack Damrill and KWTV’s Dave Jordan. In Easley’s press release and public statements to the press, he reported that the theft occurred in Norman, that the fraudulent attempt to use Tyler’s card happened at GGC, and referred to the unidentified woman as a suspect. Easley also said, “[the] unknown female suspect was down at the Goldsby Gaming Center and had used his [Tyler’s] debit card to take cash out of an ATM.” The NPD played the surveillance video on a monitor while KFOR and KWTV cameramen recorded it with their video cameras. The woman in the surveillance video was the only suspect in the theft. ¶5 Beginning on July 27, 2005, KFOR and KWTV broadcast reports about the theft. The reports included the surveillance video from GGC. Although the information the NPD provided to the media only referred to her as a suspect, KFOR referred to the woman in the video as a “thief,” an “alleged thief,” a “wallet snatcher,” and a “suspect.” KFOR also reported that the police believed it was not the suspect’s first time to commit theft. KWTV’s report referred to the woman as “an alleged thief trying to live it up on someone else’s dime” and was “facing criminal charges in two separate cities.”
The Oklahoma Bar Journal
2135
¶6 After the broadcasts aired, several people approached Linda Stewart (Stewart), the woman later identified as the person in the video, concerning the reports. On July 29, 2005, Jim Russell (Russell), Stewart’s neighbor, notified Stewart that KFOR showed her image in connection with the theft. That same day Stewart asked another neighbor, Robert Grimes (Grimes), if he had seen the reports. Grimes said he heard KFOR’s report about a theft but was not watching the screen to see the surveillance video. Stewart did not believe Russell and brushed it aside knowing she did nothing wrong. ¶7 On August 3, 2005, Gaylon Stubblefield (Stubblefield), an acquaintance who viewed KWTV’s broadcast, bumped into Stewart at GGC and inquired about the report. Stubberfield, surprised to see Stewart at the casino, thought she would have been in jail. Stubblefield testified at trial that he believed Stewart had committed the crime and his encounter with her at GGC reflected this belief. ¶8 After the broadcasts aired, NPD received information identifying the suspect as several different people, including Stewart. On August 4, 2005, Detective Davison went to Stewart’s home and asked her several questions relating to the theft. Stewart, aware of the news reports, knew why Detective Davison came to her home but did not become concerned due to her innocence. The NPD did not charge Stewart with a crime and did not contact her further. ¶9 After Detective Davison’s visit, Stewart called her husband, Danny Stewart (Mr. Stewart), who suggested she check her bank records to see if she, in fact, used the GGC ATM on July 3, 2005. On August 4, 2005, Stewart went to her bank and requested records which showed an ATM withdrawal at GGC on the date and time depicted on the video. Stewart began to cry, knowing she was the woman in the reports. That same day, Stewart notified her employer, Chickasaw Nation Newcastle Gaming Center, of the NPD’s investigation. Later that evening, Mr. Stewart found KFOR’s report online and showed it to Stewart, leaving her in a state of shock. ¶10 On August 5, 2005, Stewart’s employer revoked her temporary gaming license and suspended her from work for a period of two months. On August 6, 2005, Stewart went to Access Medical Center complaining of sleep loss and depression due to erroneous news reports. The attending physician, Dr. Davis, 2136
prescribed antidepressants and sleeping pills. Dr. Davis also recommended counseling, but Stewart never sought additional treatment. ¶11 In July 2006, Stewart commenced the instant action against KFOR and KWTV (Defendants), claiming libel and false light invasion of privacy. After a six day trial, the jury returned a verdict in favor of both Defendants for claims of libel and false light invasion of privacy. ¶12 Stewart filed a motion for new trial. Stewart mainly complained the verdict in favor of the Defendants was not sustained by sufficient evidence and was contrary to law, arguing that Defendants’ reports were false and unprivileged, constituting libel per se. The Defendants asserted that competent evidence supported the jury’s verdict. ¶13 The trial court denied the Plaintiff’s motion for a new trial. Plaintiff appeals. ¶14 In her first proposition of error, Plaintiff asserts the evidence supports a finding that the statements made by KWTV and KFOR were false and unprivileged, constituting libel per se, and the jury verdict in favor of the Defendants was contrary to law. 12 O.S. § 1441; 12 O.S. § 1443.1; Johnson v. The Black Chronicle, 1998 OK CIV APP 77, 964 P.2d 924; Mitchell v. Griffin Television, L.L.C., 2002 OK CIV APP 115, 60 P.3d 1058. Defendant, KFOR, responds, arguing the jury verdict should be affirmed because there was competent evidence to support their finding in favor of KFOR. Badillo v. Mid Century Insurance, 2005 OK 48, ¶2, 121 P.3d 1080, 1088; B-Star, Inc. v. Polyone Corporation, 2005 OK 8, ¶13, 114 P.3d 1082, 1085. Defendant, KWTV, responds similarly, arguing there was sufficient evidence to support the jury’s conclusion that the broadcast were not false and were privileged, and the verdict must be upheld. Badillo v. Mid-Century Ins., 2005 OK 48, 121 P.3d 1080, 1088. Additionally, KWTV argues the Plaintiff only addresses two of the four elements she is required to prove and does not contend the other two elements lacked proof. PRIVILEGE ¶15 Of the common-law fair report privilege, the Restatement (Second) of Torts, § 611, states: The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
accurate and complete or a fair abridgement of the occurrence reported. The fair report privilege does not provide the media with absolute immunity, but is an exemption from liability, whether the publication is true or false, so long as the nature of the occasion which was reported qualifies as an official action and the report accurately and fairly disseminates the information gathered on that occasion. Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, ¶8, 873 P.2d 983, 989. “It is enough that [the report] is substantially accurate, or . . . its ‘gist’ or ‘sting’ is true.” Johnson v. The Black Chronicle, Inc., 1998 OK CIV APP 77, ¶11, 964 P.2d 924, 927; Crittendon v. Combined Communications Corp., 1985 OK 111, ¶15, 714 P.2d 1026, 1029. Review of a jury verdict is extremely narrow, and the verdict must be upheld where there is any competent evidence reasonably tending to support the verdict. Walker v. St. Louis-San Francisco Ry. Co., 1982 OK 25, ¶10, 646 P.2d 593, 597. ¶16 Easley’s press release and press conference, held in conjunction with Crime Stoppers, was an official action because it was an official function of the Norman Police Department. As Public Information Officer (PIO), it was Easley’s official duty to conduct the press conference. Police Departments regularly seek the public’s help in identifying suspects or providing information relating to crimes against the community. It is a Police Department’s primary function to solve or prevent crimes, and these types of press conferences are an official means to effectuate that function. Without the public’s help, many crimes would go unsolved. ¶17 Easley, the NPD’s liaison to the media, acted in his capacity as PIO when he issued the press release, invited the media to the press conference, asked the public’s help in identifying the only suspect in the theft, and made statements concerning the facts of the case. We hold these acts fall within the “penumbra of the official duties” of Easley. Wright, 1994 OK 37, ¶7, 873 P.2d at 988. Therefore, the press release and the press conference held in conjunction with Crime Stoppers were official actions, and, if accurate, the reports thereof by KFOR and KWTV fell within the scope of the fair report privilege. ¶18 As we have noted, the privilege attaches so long as the reports were a substantially accurate account of the information the Norman Police Department and Easley provided the media. Johnson, 1998 OK CIV APP 77, ¶11, Vol. 81 — No. 26 — 10/2/2010
964 P.2d at 927. This is true even if the information provided by the police department later was shown to be false. The Defendants produced evidence showing the Norman Police Department was looking for a woman later identified as Stewart in connection with the theft of a wallet, and distributed surveillance video of her using what was believed to be Tyler’s ATM card. The Plaintiff presented evidence showing Captain Easley only using the word “suspect” in the press release and press conference while the Defendants’ used the word “thief” in their reports. ¶19 Whether the reports were substantially accurate presented a question for the jury to determine. The record contains competent evidence from which a jury could conclude the Defendants’ reports were a substantially accurate account of the information they were given from the official press release and at the official press conference. ¶20 We therefore hold the trial court did not abuse its discretion in denying the Plaintiff’s motion for a new trial. The order of the trial court is AFFIRMED. BELL, V.C.J., and MITCHELL, J., concur. 1. Now, Captain Easley.
2010 OK CIV APP 90 J. LYNN BOCK, et al., Plaintiffs/Appellees, vs. ROBERT E. SLATER, JR., et al., Defendants/Appellants, and WOODWARD HOTEL CORPORATION, An Oklahoma Corporation d/b/a NORTHWEST INN OF WOODWARD, OKLAHOMA, et al., Nominal Defendants/Appellants, and CHARLOTTEVILLE HOTEL CORPORATION, an Oklahoma Corporation, et al., Nominal Defendants. Case No. 107,562 (consolidated with Case No. 107,566). May 24, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE PATRICIA G. PARRISH, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS Debra McCormick, Eugene K. Bertman, RUBENSTEIN, MCCORMICK & PITTS, Edmond, Oklahoma
The Oklahoma Bar Journal
2137
Patricia A. Kirch, Oklahoma City, Oklahoma, for Plaintiffs/Appellees Mack J. Morgan, III, Harvey D. Ellis, Charles B. Goodwin, CROWE & DUNLEVY, Oklahoma City, Oklahoma, for Defendants/Appellants Warren F. Bickford, John B. Heatly, FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, P.C., Oklahoma City, Oklahoma, for Nominal Defendants/Appellants DOUG GABBARD II, PRESIDING JUDGE: ¶1 This is one in a series of appeals stemming from a shareholders’ derivative action. This appeal concerns the trial court’s denial of a motion to cancel notices of lis pendens. We affirm in part, reverse in part, and remand with directions. BACKGROUND ¶2 Plaintiffs are investors in a plan to purchase and renovate “distressed” hotels across the country. Defendants are Robert Slater, the creator and organizer of the plan, his wife Sylvia Slater, and Southern Hospitality, Inc., his management company. Nominal Defendants/ Appellants (collectively, Hotels) are various business entities owning two hotels in Woodward, Oklahoma (Woodward Hotel), and Cocoa Beach, Florida (Cocoa Beach Hotel). These two hotels are the only remaining assets of the plan. Defendants are the managing members or general partners in Hotels, while Plaintiffs are minority shareholders or limited partners.1 ¶3 In 2007, Plaintiffs filed a shareholders’ derivative action, asserting that Defendants had wrongfully diverted more than $5 million from the hotels over an eight-year period and had misappropriated the hotels’ assets for personal gain. Plaintiffs sought damages, recission of hotel management contracts, an accounting, the imposition of a constructive trust,2 the appointment of a receiver, and an injunction preventing further alleged misappropriation, waste, and abuse of remaining assets.3 ¶4 After Plaintiffs filed their petition, they filed a notice of lis pendens against the Woodward Hotel property. In May 2008, Defendants negotiated a sale of the Cocoa Beach Hotel, and Plaintiffs filed a notice of lis pendens against that property. Defendants then moved to cancel both lis pendens, asserting that Plaintiffs’ lawsuit did not “involve or affect the real property” described in the lis pendens, that the 2138
Cocoa Beach property was not within the jurisdiction of the court, and that the lis pendens were without legal basis and contrary to equity. The trial court cancelled the lis pendens, and Plaintiffs appealed. ¶5 In Appeal No. 105,763 (mandate issued November 13, 2008), Division I of this Court reversed and remanded the case with directions to rehear Defendants’ motion with an emphasis on two issues: (1) whether real property was involved in the action and affected by it; and (2) whether the equities of the case were balanced more in favor of Plaintiffs or Defendants.4 ¶6 On remand, evidence was introduced which indicated that Defendants owned 60% of the stock of the corporation that owned the Woodward Hotel, and, therefore, could convey the hotel property. However, conflicting evidence was presented regarding whether Defendants had the power to convey or encumber the Cocoa Beach Hotel. Conflicting evidence also was presented regarding whether the failure of a proposed $19 million sale of the Cocoa Beach Hotel was caused by the lis pendens or by other factors. ¶7 The trial court resolved the two issues raised by Division I’s opinion in favor of Plaintiffs. In a letter opinion, the trial court concluded that: (1) real property is involved in this action because Defendants have the power to convey and encumber the real property; and (2) the equities are in favor of Plaintiffs. Regarding the latter finding, the trial court noted that a receivership had been necessary due to the actions of Slater, that “Slater disregarded the Court’s Order appointing a receiver and continued to be actively involved in the potential sale of the Cocoa Beach Hotel,” and that “Defendant did not disclose the full details of the proposed sale of the Cocoa Beach Hotel when obtaining their [limited partners’] approval of the sale (i.e., that $2 million of the sale proceeds would be utilized to pay off a debt of an unrelated limited partnership which Defendant Slater guaranteed).” The trial court subsequently issued an order denying Defendants’ motion to cancel the lis pendens notices. Defendants and Hotels appeal. STANDARD OF REVIEW ¶8 To the extent this appeal involves interpretation of the lis pendens statute, it presents a question of law, and the trial court’s interpretation is subject to de novo review. See Casey v.
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
Casey, 2005 OK 13, ¶ 7, 109 P.3d 345, 348. However, the trial court’s decision whether to cancel the lis pendens must be based on a balancing of the equities, and it will be affirmed unless its decision is against the weight of the evidence, is contrary to law, or is a clear abuse of discretion. See Rush v. In re Application for Appointment of Trustee for the Purpose of Securing an Oil & Gas Lease, 1995 OK CIV APP 71, ¶ 2, 897 P.2d 1150, 1151. ANALYSIS ¶9 Oklahoma’s lis pendens statute is found at 12 O.S.2001 § 2004.2, and states in relevant part: A. Upon the filing of a petition, the action is pending so as to charge third persons with notice of its pendency. While an action is pending, no third person shall acquire an interest in the subject matter of the suit as against the prevailing party’s title; except that: 1. As to actions in either state or federal court involving real property, such notice shall be effective from and after the time that a notice of pendency of action, identifying the case and the court in which it is pending and giving the legal description of the land affected by the action, is filed of record in the office of the county clerk of the county wherein the land is situated[.] (Emphasis added.) ¶10 As noted by the language emphasized above, lis pendens may only be applied in actions directly involving or affecting real property. However, even when a lawsuit directly involves or affects realty, the use of lis pendens is subject to long-standing equitable principles. See White v. Wensauer, 1985 OK 26, ¶ 9, 702 P.2d 15, 18. Thus, in a case where a party moves to cancel a lis pendens, as here, a trial court must balance all the equities in the case to determine whether applying the doctrine is harsh or arbitrary and whether the cancellation of lis pendens would result in prejudice to the non-petitioning party. Id. at ¶ 10, 702 P.2d at 18. ¶11 In the present case, Defendants and Hotels assert three arguments to support their claim that the trial court’s denial of their motion to cancel the lis pendens was error. First, that Plaintiffs’ lawsuit does not involve or affect “real property” as required by the statute. Second, that the balance of equities in the case favored them. Third, that the trial court Vol. 81 — No. 26 — 10/2/2010
improperly refused to admit and consider the Cocoa Beach Hotel partnership agreement. ¶12 In their first proposition, Defendants and Hotels note that the purpose of lis pendens is to give notice of pending title disputes to potential third-party buyers. They argue that because Plaintiffs are pursuing a derivative action, Hotels are the real parties in interest, and, since Hotels already own the hotel property and there is no title dispute involved in the case, lis pendens notice serves no useful purpose. They rely on Central Allied Profit Sharing Trust v. Bailey, 759 P.2d 849 (Colo. Ct. App. 1988), which affirmed the striking of a lis pendens notice because the plaintiffs’ underlying lawsuit, if successful, would not affect the title to certain partnership property. Defendants also assert that, even if the COCA opinion was correct in holding that lis pendens is not limited to title disputes, and even if Plaintiffs’ lawsuit against Defendants is successful, the suit still does not “involve” or “affect” realty since Defendants do not own the Cocoa Beach Hotel and have no power to sell or encumber it. ¶13 There is wide divergence in how various jurisdictions define the lis pendens requirement that an action be one involving or affecting real property.5 However, Oklahoma does not narrowly limit the doctrine to disputes involving only “title, possession or interest in property.” Instead, as COCA Division I explained in its opinion in Appeal No. 105,763: The Court in the present case discharged the notice of lis pendens . . . based on its ruling as a matter of law that the doctrine applied only in disputes as to title, possession, or interest in the property. Although some states statutorily have narrowed application of the doctrine of lis pendens to such disputes, Oklahoma has not done so. Section 2004.2 [of Title 12 of the Oklahoma Statutes] specifies the procedure for filing the notice as to actions “involving real property” against ‘the land affected by the action. In the present case, the relief requested by the [Plaintiffs] would affect [Defendants’] power to convey or encumber the real property. Therefore, the real property is arguably involved in the action and affected by it. The trial court did not address this question and must do so in order to cancel the lis pendens. (Emphasis added; footnote omitted.)
The Oklahoma Bar Journal
2139
¶14 While Division I’s opinion found that Plaintiffs’ action would affect Defendants’ power to sell or encumber the real property, it did not find that Defendants had such power. For that reason, it directed the trial court to determine on remand whether real property was involved in the action and affected by it. After receiving evidence, the trial court concluded that Defendants had the power to sell or convey the property and, therefore, realty was involved in or affected by the action. ¶15 After review, we agree with the trial court’s finding regarding the Woodward Hotel. The appellate record proves that the hotel was owned by the Woodward Hotel Corporation, that Defendant Robert Slater owned a 60% interest in the corporation, and that he had the power to sell the hotel. Thus, the statute authorizes the filing of a lis pendens against that property, subject to the trial court’s equitable inquiry. ¶16 However, the appellate record also proves that Defendants do not own a majority or controlling interest in the Cocoa Beach Hotel and do not have the power to sell it. This hotel property is owned by the Cocoa Beach Hotel Fund Limited Partnership, an Oklahoma limited partnership consisting of the Cocoa Beach Hotel Corporation, and others. Although Defendant Robert Slater owns a majority interest in, and is the sole director of, the corporation,6 the corporation has only a minority ownership in the limited partnership.7 Importantly, the Cocoa Beach Hotel is the only asset owned by the partnership. Under Oklahoma law, all partners must consent to a sale or disposition of all, or substantially all, of a limited partnership’s property, see 54 O.S.2001 § 150, and general partners, such as the Cocoa Beach Hotel Corporation, do not have the right to separately dispose of partnership property. See Roby v. Day, 1981 OK 122, 635 P.2d 611. Unless there is an agreement otherwise, Defendants, through the corporation, only have the power to sell their interest in the partnership, but do not have the power to sell the partnership realty. ¶17 Although the limited partnership agreement was not admitted into evidence,8 Mitch Gregory, an Oklahoma City attorney, was allowed to testify that the Cocoa Beach Hotel Fund Limited Partnership Agreement authorizes a sale of the property with the consent of only a majority of the partners. Slater’s conduct was consistent with this testimony. For example, prior to the failed 2008 sale, he sought 2140
consents from each of the partners, and obtained approval from those owning more than 72% of the partnership. ¶18 In rebuttal, Plaintiffs assert that Defendant Slater executed consents as the sole director of the Cocoa Beach Hotel Corporation, that these consents “permitted him to sell the Cocoa Beach Hotel,” that he “could have drafted and changed these documents at any time,” and that Hotels are essentially his alter egos. While Gregory admitted that Slater was the sole director of the Cocoa Beach Hotel, that Slater was authorized by the corporation to unilaterally consent to potential sales, and that Slater directed him to prepare the corporate consent, Gregory clearly stated that the corporate consent did not, and could not, authorize Slater to sell partnership property. As noted above, Gregory testified that partnership property could only be sold with the approval of a majority of the partners. ¶19 In sum, the evidence conclusively established that Defendants had no direct power to sell the partnership realty. Furthermore, Plaintiffs presented no evidence that the other consenting partners’ consents were forged, that they were merely Defendants’ alter egos, or that Slater had a general statement of partnership authority authorizing him to sell the hotel without partnership approval. Because Plaintiffs’ action does not directly involve or affect title to the Cocoa Beach Hotel property, the trial court’s denial of Defendants’ motion must be reversed.9 ¶20 As noted above, the trial court correctly ruled that Plaintiffs’ lawsuit involved or affected the Woodward Hotel. It was, therefore, required to balance the equities in ruling upon Defendants’ motion. In White v. Wensauer, 1985 OK 26, ¶¶ 9-10, 702 P.2d 15, 18-19, the Oklahoma Supreme Court stated: [T]he trial court must balance the equities to determine whether, in a particular case, the application of the doctrine is harsh or arbitrary and whether the cancellation of lis pendens would result in prejudice to the nonpetitioning party. It is essential that the court, when called upon to act on a motion to discharge lis pendens, take testimony to ascertain the exact nature and extent of any possible prejudice that could result from the release of notice and, whenever appropriate, safeguard the threatened rights by other available means less drastic in character.
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
¶21 Here, the trial court clearly conducted a careful balancing of the equities. Plaintiffs presented evidence that Defendants had previously used the various entities for personal gain, and that they had failed to disclose the details of the proposed Cocoa Beach Hotel sale (including a plan to use $2 million to pay off another debt). Defendants primarily presented evidence that a lis pendens “prejudiced” their ability to sell the Cocoa Beach property, and, inferentially, the Woodward property. The trial court weighed the conflicting evidence, found that the lis pendens was necessary to safeguard Plaintiffs’ threatened rights, and determined that there were no other less drastic means for doing so. Its decision regarding the Woodward Hotel is not against the weight of the evidence, contrary to law, or a clear abuse of discretion. ¶22 Finally, Defendants and Hotels assert the trial court erred by excluding from evidence the Cocoa Beach Hotel Partnership Agreement. They concede that they did not timely produce the document because of a computer “glitch” that rendered it unreadable. However, they assert that its admission was relevant and material, and the trial court’s exclusion was error. We agree. ¶23 The limited partnership agreement was the best evidence of the Cocoa Beach Hotel Corporation’s interest in the Cocoa Beach Limited Partnership, and Defendants’ power (through the corporation) to sell or encumber the property. Plaintiffs did not demonstrate substantial prejudice by its admission, and any prejudice to Plaintiffs is clearly outweighed by the document’s probative value.10 Nevertheless, we have already ruled that the trial court erred in denying Defendants’ motion to cancel the lis pendens notice on the Cocoa Beach Hotel. Therefore, the trial court’s exclusion of the partnership agreement, even if erroneous, has been rendered harmless. CONCLUSION ¶24 The trial court’s decision is hereby affirmed in part as to the Woodward Hotel, and reversed as to the Cocoa Beach Hotel. This cause is remanded with directions that the motion to cancel lis pendens be granted as to the Cocoa Beach Hotel. ¶25 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. GOODMAN, J., concurs, and RAPP, J., not participating. Vol. 81 — No. 26 — 10/2/2010
1. The caption of the trial court order does not list all the plaintiffs, defendants, or nominal defendants, but instead uses the designation “et al.” The petition in error purports to list all the parties, as well as a number of other nominal defendants not party to this appeal. 2. Plaintiff’s claim for a constructive trust was dismissed prior to the filing of this appeal. 3. A good deal of litigation has followed the filing of the action. For example, last year, in appeal No. 106,802, this Court affirmed the trial court’s appointment of a permanent receiver for Hotels. 4. The parties have put different “spins” on the meaning of Division I’s opinion. Plaintiffs seek to limit the appeal by excluding issues decided in that opinion, and Hotels assert the trial court failed to follow the opinion’s “mandate” on remand. After reviewing the opinion and the record below, we conclude that the arguments raised by Defendants and Hotels were not resolved by the opinion, and that the trial court considered and followed the opinion’s directions. 5. For example, Ohio courts have held it is not sufficient that the property be the source from which the plaintiff will be compensated, but that it must be “at the very essence of the controversy between the litigants”; while Florida courts have required the existence of a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit. See Levin v. George Fraam & Sons, Inc., 585 N.E.2d 527, 530 (Ohio Ct. App. 1990); Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla. 1993); 51 Am. Jur. 2d Lis Pendens §§ 19 & 65 (2000). 6. 5/13/09 Transcript, pp. 135-140. Plaintiff Bock owns a minority interest in the corporation, and Plaintiff Vose has an interest in an entity that is a minority partner in the limited partnership. 7. In their appellate brief, Defendants assert that, in certain qualifying sales of partnership property, after all limited partners have received a “preferred return,” they may vote up to a 30% share. 8. The Limited Partnership agreement was not admitted into evidence, but was marked as Court’s Exhibit No. 1. We find that the trial court erred in refusing to admit the partnership agreement, an issue which we discuss in greater detail below. 9. Our holding is consistent with the view expressed in 51 Am Jur. 2d Lis Pendens § 43 (2000): Lis pendens is not appropriate in an equitable shareholder’s action against a corporation’s director for a breach of fiduciary duty and interference with contract rights, where the action did not directly affect the title to or right of possession of real property and where the shareholder did not seek an equitable lien on the specific property. 10. In fact, Defendants assert that Plaintiffs had already received a copy of the agreement attached to Defendants’ April 17, 2009, supplemental brief in support of its motion to cancel.
2010 OK CIV APP 88 MARK SHAPIRO, Petitioner, vs. CITY BEVERAGE CO. LLC, CNA INSURANCE GROUP, and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 107,784. August 10, 2010 PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT HONORABLE GENE PRIGMORE, TRIAL JUDGE SUSTAINED David A. Christoffel, THE LAW OFFICES OF DANIEL M. DAVIS, Oklahoma City, Oklahoma, for Petitioner Angela Reinstein, PIERCE COUCH HENDRICKSON BAYSINGER & GREEN, LLP, Oklahoma City, Oklahoma, for Respondents JANE P. WISEMAN, CHIEF JUDGE:
The Oklahoma Bar Journal
2141
¶1 Claimant, Mark Shapiro, seeks review of an order of a three-judge panel of the Workers’ Compensation Court affirming the decision of the trial court finding that his motion to reopen was barred by the statute of limitations. After review of the record and pertinent law, we find the trial court correctly held that Claimant’s motion to reopen his neck claim was untimely. Accordingly, we sustain the order of the threejudge panel of the Workers’ Compensation Court, which affirmed the decision of the trial court. FACTS AND PROCEDURAL BACKGROUND ¶2 The time line of relevant events that transpired over the past several years is as follows: • May 9, 2000: Claimant filed a Form 3 alleging a cumulative trauma to the neck and back with a date of last exposure of March 8, 2000. • November 13, 2000: the trial court determined Claimant sustained a cumulative trauma injury to the neck and low back with a date of last exposure of March 8, 2000. This decision was later affirmed by an order of a three-judge panel filed February 22, 2001. • April 24, 2002: the trial court found Claimant sustained 20% permanent partial disability to his low back and 20% permanent partial disability to his neck. • August 7, 2003: the trial court ordered City Beverage Co. LLC (Employer) to provide Claimant with vocational rehabilitation “as outlined in Option A as identified in the report of LDH CONSULTANTS.” • July 25, 2006: Claimant filed a motion to reopen the back injury claim based on a change of condition for the worse. • February 20, 2007: the trial court found Claimant had “sustained a physical change of condition for the worse to the LOW BACK” and awarded Claimant medical treatment. This decision was later affirmed by an order of a threejudge panel filed on May 24, 2007. • January 16, 2008: the trial court ordered Claimant to submit to a medical examination to determine whether the “need 2142
for Cymbalta is related to back injury and reasonable and necessary.” • May 27, 2009: Claimant filed a motion to reopen the neck injury claim based on a change of condition for the worse. • July 30, 2009: the trial court appointed an independent medical examiner and ordered Claimant to undergo a medical examination. ¶3 In an order filed August 25, 2009, the trial court denied Claimant’s motion to reopen the neck claim finding Claimant’s motion to be untimely pursuant to the three-year statute of limitations set forth under 85 O.S. Supp. 2009 § 43(C). The trial court found that because Claimant’s previous motion to reopen only addressed the back injury and not the neck injury, the statute of limitations as to Claimant’s neck injury was not tolled. Because the last order addressing Claimant’s neck injury was filed August 7, 2003, the trial court found Claimant’s motion to reopen the neck injury fell outside the three-year statute of limitations. ¶4 Claimant appealed the trial court’s decision to a three-judge panel, which affirmed the trial court’s decision. Claimant now seeks review in this Court. STANDARD OF REVIEW ¶5 The issue presented is whether the Workers’ Compensation Court correctly applied 85 O.S. Supp. 2009 § 43(C). This is a question of law that we review de novo. K-Mart Corp. v. Herring, 2008 OK 75, ¶ 2, 188 P.3d 140, 143. ANALYSIS ¶6 Title 85 O.S. Supp. 2009 § 43(C) sets out the statute of limitations for a motion to reopen for a change in condition for the worse: The jurisdiction of the Court to reopen any cause upon an application based upon a change in condition for the worse shall extend for three (3) years from the date of the last order, and unless filed within said period of time, shall be forever barred. An order denying an application to reopen a claim shall not extend the period of the time set out herein for reopening the case. In Arrow Tool & Gauge v. Mead, 2000 OK 86, 16 P.3d 1120, the Oklahoma Supreme Court interpreted the words “last order” as used in § 43(C). The Supreme Court held that an order only qualifies as a “last order” under § 43(C) “if it
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
substantially affects the range of monetary, medical, or rehabilitative benefits conferrable by the workers’ compensation law.” Id. at ¶ 18, 16 P.3d at 1126. The Arrow Court held that an order for a vocational rehabilitation evaluation qualifies as a last order. Id. at ¶ 22, 16 P.3d at 1127. ¶7 Claimant asserts that according to Arrow, the “last order” in this case could be (1) the February 20, 2007, order finding Claimant had sustained a change of condition for the worse to the low back which was later affirmed in an order by a three-judge panel filed May 24, 2007; (2) the January 16, 2008, order ordering Claimant to submit to a medical examination to determine whether the “need for Cymbalta is related to back injury and reasonable and necessary;” or (3) the July 30, 2009, order appointing an independent medical examiner to evaluate Claimant and finding: “IT IS FURTHER ORDERED that as a result of an alleged injury to the BACK received on or about MARCH 8, 2000, JOHN S. MAROUK, D.O. shall submit a verified or declared written narrative report containing findings and opinions” as to whether the treating physician’s report dated June 8, 2009, is supported by objective medical evidence.1 ¶8 Claimant contends the February 20, 2007, order “is an order which conferred medical rights to [Claimant] under the Act.” Claimant then asserts that any of the above-mentioned orders would be sufficient pursuant to the holding in Arrow to allow him to reopen the case for additional medical treatment to the neck. ¶9 Employer responds that the last order relating to Claimant’s neck injury is the order allowing vocational benefits entered on August 7, 2003. Because Claimant’s motion to reopen the neck claim for change of condition was not filed until May 27, 2009, Employer contends Claimant’s request was clearly barred by § 43(C) and its three-year statute of limitations. ¶10 Although we agree the February 20, 2007, order finding a change of condition to the back substantially affects medical benefits, it only substantially affected benefits related to Claimant’s back. The other orders mentioned above dated May 24, 2007, January 16, 2008, and July 30, 2009, likewise only related to Claimant’s back injury. ¶11 The Oklahoma Supreme Court has emphasized: Vol. 81 — No. 26 — 10/2/2010
The primary goal of statutory construction is to ascertain and follow the intention of the Legislature. If a statute is plain and unambiguous and its meaning clear and no occasion exists for the application of rules of construction a statute will be accorded the meaning expressed by the language used. Lang v. Erlanger Tubular Corp., 2009 OK 17, ¶ 8, 206 P.3d 589, 591 (quoting Wylie v. Chesser, 2007 OK 81, ¶ 19, 173 P.3d 64, 71). ¶12 We find the order filed on August 7, 2003, is the “last order” within the meaning of § 43(C) because it is the last order addressing issues related to Claimant’s neck injury. To accept Claimant’s interpretation would render the three-year statute of limitations for reopening a claim on change of condition virtually meaningless. As Employer points out in its appellate brief: For example, if there were a case where the claimant alleged injury to the neck, back, both shoulders, both legs and both feet and timely filed to reopen the back within three years and then within three years of that reopen, filed to reopen the neck, and within three years of that, filed to reopen the shoulders, etc., the matter could go on indefinitely. ¶13 Our finding today gives effect to the Legislature’s intent to place a three-year statutory limit on a claimant’s ability to reopen a claim based on a change of condition. Because the motion to reopen the neck injury was not filed until May 27, 2009, we find the trial court correctly concluded that Claimant’s motion to reopen the neck claim is time-barred. CONCLUSION ¶14 The trial court properly concluded that Claimant’s motion is barred by the statute of limitations. The three-judge panel correctly affirmed the trial court’s decision. Finding no reversible error, we sustain the decision of the three-judge panel. ¶15 SUSTAINED. FISCHER, P.J., and BARNES, J., concur. 1. We note that Claimant also states in the conclusion of his appellate brief that the order of “3-18-08” could also be considered the “last order.” However, we find no order with this date in the appellate record.
The Oklahoma Bar Journal
2143
2010 OK CIV APP 91 TOM CHENOWETH, Plaintiff/Appellant, vs. CITY OF MIAMI, Defendant/Appellee. Case No. 107,567. August 26, 2010 APPEAL FROM THE DISTRICT COURT OF OTTAWA COUNTY, OKLAHOMA HONORABLE ROBERT G. HANEY, JUDGE AFFIRMED Jot Hartley, Terry D. Allen, The Hartley Law Firm, P.L.L.C., Jay, Oklahoma, for Appellant, Matthew B. Free, Bob D. James, Thomas A. LeBlanc, Best & Sharp, Tulsa, Oklahoma, for Appellee. Larry Joplin, Presiding Judge: ¶1 Plaintiff/Appellant Tom Chenoweth (Plaintiff) seeks review of the trial court’s order denying his motion to reconsider after the trial court granted the motion for summary judgment of Defendant/Appellee City of Miami (City) on Plaintiff’s claim to damages for alleged negligent infliction of emotional distress and retaliation. In this accelerated review proceeding, Plaintiff challenges the trial court’s order as affected by errors of both law and fact. ¶2 Plaintiff worked for City as a fireman. Employment evaluations in 2001, 2003 and 2004 rated Plaintiff “2,” “needs improvement” in the area of “Dependability (Doesn’t miss work regularly)” on account of his high rate of absences from work on sick leave. In 2004, the Fire Chief issued, then rescinded, a written warning to Plaintiff concerning alleged “excessive” use of sick leave. ¶3 In 2005, Plaintiff again received a “2,” “needs improvement” in the area of “Dependability (Doesn’t miss work regularly)” on account of a continued pattern of absenteeism on sick leave. The Fire Chief issued a written warning to Plaintiff concerning excessive use of sick leave. ¶4 Plaintiff then initiated a grievance under the collective bargaining procedures of City’s contract with firefighters, seeking removal of the written warning from his employment record. Before the City Manager, City introduced evidence demonstrating Plaintiff’s use of all sick leave earned during the years 2001 through 2005. Plaintiff introduced evidence showing earned, accrued, but unused sick 2144
leave from the years 1997 through 2000 sufficient to cover his absences from work in later years. The City Manager found for Plaintiff, reasoning the collective bargaining agreement did not define “excessive” use of leave. ¶5 In 2006, Plaintiff received an “I” (unsatisfactory) on his employment evaluation of “Dependability.” The evaluation specifically noted Plaintiff’s “[s]ickness has caused him to miss many shifts or to go home ill from work,” “[i]mprovement is needed in his attitude toward details at work and the use of sick time,” and his use of more sick leave than he earned in the current year. After a meeting with Plaintiff in January 2007, the Fire Chief advised Plaintiff, in writing, he would be “re-evaluated” at his next anniversary date, and he had eleven months to improve his attitude and dependability. ¶6 On September 27, 2007, Plaintiff filed his Notice of Claim with City pursuant to the Oklahoma Governmental Tort Claims Act, 51 O.S. §151, et seq. Plaintiff alleged that, even though he had violated no specific term of the collective bargaining agreement, he had nevertheless received a low “dependability” score which “hampered his ability to receive any promotion or raise,” and for which he sought $150,000.00 in economic damages, physical hurt, trauma, pain and suffering of the mind and body, as well as emotional and mental trauma. The claim was denied. ¶7 In January 2008, Plaintiff commenced the instant action. Plaintiff first alleged City’s employees, “in reckless disregard of causing severe emotional distress and injury to Plaintiff,” “wrongfully repeat[ed] and publish[ed] false and scandalous personal information relating to the enjoyment of certain rights that Plaintiff was entitled to under the Collective Bargaining Agreement,” thereby “creating and permitting to exist an offensive, unbearable and hostile environment toward Plaintiff and by reprimands and poor evaluations for Plaintiff’s proper use of sick leave.” Plaintiff secondly alleged that City “did retaliate against the Plaintiff . . . for his use of sick leave by reprimanding him . . . , failing to promote him or provide a pay raise, giving poor evaluations, and continually transferring him to different shifts.” On account of City’s “infliction of emotional distress” and “retaliation,” Plaintiff consequently sought an award of actual and punitive damages.
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
¶8 City filed a motion for summary judgment. City first argued that, to the extent Plaintiff’s emotional distress claim centered on allegations of “bad faith” acts by City’s employees, outside the scope of their employment, the OGTCA specifically shielded City from liability. 51 O.S. Supp. 2007 §152(11).1 Plaintiff secondly argued Oklahoma law did not recognize a claim for “retaliation.” ¶9 Over Plaintiff’s objection, the trial court agreed with City. Plaintiff filed a motion to reconsider and motion to vacate, which the trial court denied. Plaintiff appeals, and the matter stands submitted on the trial court record.2 ¶10 “Summary relief issues stand before us for de novo review[,] [and] [a]ll facts and inferences must be viewed in the light most favorable to the non-movant.” Reeds v. Walker, 2006 OK 43, ¶9, 157 P.3d 100, 106-107. (Footnotes omitted.) “Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959, 963-964. (Citations omitted.) “Summary judgment will be reversed if the appellate court determines that reasonable men might reach different conclusions from the undisputed material facts.” Id. ¶11 However, “[a] trial court’s denial of a motion for new trial is reviewed for abuse of discretion.” Reeds v. Walker, 2006 OK 43, ¶9, 157 P.3d 100, 106-107. (Footnotes omitted.) Likewise, “[t]he correct standard of review employed upon a motion to vacate is whether sound discretion was exercised to vacate [or deny vacation of] the earlier decision.” Kordis v. Kordis, 2001 OK 99, ¶ 6, 37 P.3d 866, 869. So, “[w]here, as here, our assessment of the trial court’s exercise of discretion in denying defendants a new trial rests on the propriety of the underlying grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication’s correctness.” Reeds, 2006 OK 43, ¶9, 157 P.3d at 106-107. (Emphasis original.) (Footnotes omitted.) ¶12 “To establish a prima facie case of intentional infliction of emotional distress, a plaintiff must demonstrate: (1) that the tortfeasor acted intentionally or recklessly; (2) that the tortfeasor’s conduct was extreme and outrageous; (3) that plaintiff actually experienced emotional distress; and (4) that the emotional Vol. 81 — No. 26 — 10/2/2010
distress was severe.” Ishmael v. Andrew, 2006 OK CIV APP 82, ¶19, 137 P.3d 1271, 1277; Breeden v. League Services Corp., 1978 OK 27, ¶7, 575 P.2d 1374, 1376. Whether an actor’s conduct is so extreme and outrageous as to permit recovery constitutes a question of law. Breeden, 1978 OK 27, ¶12, 575 P.2d at 1377-1378. ¶13 However, “unlike a cause of action for intentional infliction of emotional distress, negligent infliction of emotional distress is not an independent tort.” Kraszewski v. Baptist Medical Center of Oklahoma, Inc., 1996 OK 141, ¶1, 916 P.2d 241, 243, fn. 1. (Citation omitted.) That is to say, “[u]nder Oklahoma’s jurisprudence the negligent causing of emotional distress is not an independent tort, but is in effect the tort of negligence.” Lockhart v. Loosen, 1997 OK 103, ¶16, 943 P.2d 1074, 1081. ¶14 Consequently, “before damages for mental suffering may be collected, the plaintiff must establish: a duty on the part of the defendant to protect the plaintiff from injury; a failure of the defendant to perform the duty; and an injury to the plaintiff resulting from the failure.” Kraszewski, 1996 OK 141, ¶1, 916 P.2d at 243, fn. 1. (Citation omitted.) The liability of the State or its subdivisions is entirely dependent on such a showing because: The GTCA defines a “tort” as a legal wrong involving a violation of a duty imposed by general law or otherwise resulting in a loss as the proximate result of an act or omission of a political subdivision or employee acting within the scope of employment. “Scope of employment” is defined as performance by an employee acting in good faith within the duties of his office or employment or of tasks lawfully assigned by a competent authority. Except in cases where only one reasonable conclusion can be drawn, the question of whether an employee has acted within the scope of employment at any given time is a question for the trier of fact. An employee of a political subdivision is relieved from private liability for tortious conduct committed within the scope of employment. A political subdivision is relieved from liability for tortious conduct committed by employees outside the scope of employment. Tuffy’s, Inc. v. City of Oklahoma City, 2009 OK 4, ¶8, 212 P.3d 1158, 1163. Whether one owes a duty to another also presents a question of law. See, e.g., Miller v. David Grace, Inc., 2009 OK 49,
The Oklahoma Bar Journal
2145
¶11, 212 P.3d 1223, 1227. (Citations omitted.) So guided, we hold Plaintiff’s claim for emotional distress must fail. ¶15 First, it cannot be seriously disputed that the evaluations of Plaintiff’s job performance were administered by City employees acting within the scope of their employment duties, and a claim for intentional infliction of emotional distress requires proof of some intentional or reckless, extreme and outrageous conduct, equivalent, in our minds, to bad faith. If, in rating Plaintiff’s “dependability” and absenteeism, the City employees were acting in good faith, the City is insulated from liability by the OGTCA, §152(9) and (11). See, Tuffy’s, Inc., 2009 OK 4, ¶12-14, 212 P.3d at 1164-1165. See also, Fehring v. State Ins. Fund, 2001 OK 11, ¶23, 19 P.3d 276, 2833; McMullen v. City of Del City, 920 P.2d 528, 530.4 On the other hand, if, in rating Plaintiff’s “dependability” and absenteeism, the City employees were acting in bad faith, they were acting outside the scope of their employment, and City bears no liability for the employees’ acts. ¶16 Second, we cannot say, as a matter of law, the statements chastising Plaintiff for his use of sick leave and absenteeism were so extreme and outrageous as to permit recovery in this case. City surely has an important interest in maintaining an adequately staffed fire department, and chronic absenteeism, even if for a valid reason, surely impacts City’s ability to insure the fire department has, on every shift, an adequate number of firefighters to handle any contingency. ¶17 Third, Plaintiff has identified, and we discern, no duty breached by City as to support a claim for negligently inflicted emotional distress. City is granted broad discretion to “[d]irect the work of, hire, promote, assign, transfer, demote, suspend, discharge or terminate municipal employees; [d]etermine qualifications for employment and the nature and content of personnel examinations; and [t]ake actions as may be necessary to carry out the mission of the municipal employer in emergencies,” “[u]nless
2146
limited by the provisions of a collective bargaining agreement or by other statutory provisions.” 11 O.S. Supp. 2004 §51-205. Consequently, the collective bargaining agreement defines the terms and conditions of Plaintiff’s employment, and the rights and duties of the parties, including the rights of City to evaluate the performance of its employees. See, e.g., City of Mustang v. Fraternal Order of Police, Lodge 163, 2008 OK CIV APP 51, 184 P.3d 1102. But, the parties’ collective bargaining agreement does not appear in the record before us. ¶18 Lastly, Plaintiff cites, and we find, no authority supporting a damages claim for “retaliation.” Whether Plaintiff is entitled to a promotion or pay raise necessarily depends on the governing provisions of the collective bargaining agreement, and, we assume, consideration of his job performance. As we have observed, City possesses an interest in its firefighters’ ability to appear and fulfill the duties of their assigned shifts, and impairment of that interest by chronically absent employees. ¶19 We therefore hold the trial court did not err in denying the motion for new trial/reconsideration of Plaintiff. The order of the trial court is AFFIRMED. BELL, V.C.J., and MITCHELL, J., concur. 1. “’Scope of employment’ means performance by an employee acting in good faith within the duties of the employee’s office or employment or of tasks lawfully assigned by a competent authority . . . .” 2. See, Rule 13(h), Rules for District Courts, 12 O.S. 2001, Ch. 2, App.; Ok.S.Ct.R. 1.36, 12 O.S. 2001, Ch. 15, App. 3. “[W]hen, for viability, the tort cause of action sued upon requires proof of an element that necessarily excludes good faith conduct on the part of governmental employees, there can be no liability against the governmental entity in a GTCA-based suit.” 4. “In Parker v. City of Midwest City, 850 P.2d 1065 (Okla.1993), the court described a conundrum facing anyone who sues a municipality in Oklahoma for malicious prosecution, which must put an end to any such claim pressed against a governmental entity covered by the Governmental Tort Claims Act. To sue any statutory governmental entity in tort, the plaintiff must prove he was harmed by an employee acting within the scope of his employment. To prove a claim for malicious prosecution, one would have to show that the tortfeasor acted maliciously and without probable cause. But, as the court noted, a governmental employee only acts within the scope of his employment when he acts in good faith. Therefore, a plaintiff could not possibly hold a governmental entity liable for malicious prosecution, because the only way to prevail on such a claim would be to present evidence which necessarily took the bad actors outside the scope of their employment.” (Emphasis original.)
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
THE 2010 OKLAHOMA CRIMINAL DEFENSE LAWYERS ASSOCIATION AWARDS FOR EXCELLENCE IN CRIMINAL DEFENSE Each year your peers in the practice of criminal defense select three of their own to receive the most prestigious awards for excellence in criminal defense achievements in Oklahoma. These awards are the only statewide awards that are nominated and selected by attorneys that practice criminal defense in Oklahoma. The awards are as follows:
The Clarence Darrow Award Clarence Darrow was born in Ohio in 1857. After being admitted to the bar in 1878, he became a small town lawyer for nine years. During WWI he defended anti-war activists and was critical of The Espionage Act that was used to stifle anti-war activities. You need only mention the names of his famous cases to realize his impact on criminal defense; the Scopes Monkey Trial, the Scottsboro 9 and the Leopold-Loeb Murder Trials. A 1936 FBI memo to Clyde Tolson, aide-de-camp to J. Edgar Hoover, gave Mr. Hoover some quotes that Clarence Darrow had made in an article entitled Attorney for the Defendant. It was suggested that Mr. Hoover could use these quotes in speeches to point out how unscrupulous criminal lawyers stimulate disrespect for law and influence crime conditions. The award recognizes the efforts of an individual who has, during the year, exemplified the zealous criminal defense advocacy that befits the namesake of the award "Clarence Darrow". It is in the deeds and spirit of Clarence Darrow that this award is given each year for the zealous criminal defense advocacy by an individual attorney. The only qualification requirement is that the event(s) upon which the nomination is based must have taken place during the current year.
The Lord Thomas Erskine Award Lord Erskine was a Scotsman, the third son of the 10th Earl of Buchan, educated at Edinburgh and Cambridge and called to the bar in 1778. He was a strong advocate and defender of popular liberties and constitutional rights. His defense of Thomas Paine cost him his post of attorney general to the Prince of Wales. The award is given to honor a member of the criminal defense bar who has over the years steadfastly placed the preservation of personal liberties over his or her own personal gain or reputation. The award is a cumulative year award and is not limited to any particular activities in any given year.
The Thurgood Marshall Appellate Advocacy Award Thurgood Marshall, the grandson of a slave, was born in 1908 in Maryland. In 1930, he was denied admission to the University of Maryland Law School due to the fact mat he was black. This event was to direct his future professional life. In 1934, he began his association with the NAACP and dismantled school segregation in his 1954 victory of Brown vs. Board of Education of Topeka. He later desegregated graduate schools with his victory in Mclaurin vs. Oklahoma State Regents. As a Justice for the Court of Appeals for the 2nd Circuit, he made 112 rulings that were all upheld before the United States Supreme Court. As Solicitor General for the United States, he won 14 of 19 cases argued before the United States Supreme Court. In 1967, Thurgood Marshall was the first African American appointed to the United States Supreme Court. He was often the lone voice of dissent against the death penalty and always spoke for voiceless Americans in his opinions. He died in 1993. The only qualification for the awards is that the nominee must be the appellate attorney of record in the decision that formed the basis of the nomination. However, there is no requirement that the decision must have occurred within the current year.
Please submit written nominations and the reasons therefore to: BY MAIL: OCDLA, P.O. Box 2272, Oklahoma City, OK 73101 FAX TO: (405) 239-2595 EMAIL TO: bdp@for-the-defense.com The deadline is November 5, 2010. The awards will be announced prior to the OBA Convention and awarded at the OCDLA Annual Meeting on November 18, 2010 at 1:30 p.m. You do not have to be a member of OCDLA to nominate an individual. Awards not received by November 5, 2010 at the OCDLA PO Box or fax # will not be considered.
Vol. 81 — No. 26 — 10/2/2010
The Oklahoma Bar Journal
2147
OBA/CLE Annual Meeting 2010 Crowne Plaza Hotel, Tulsa
November 17, 2010
DAY ONE
Family Law
Criminal Law
How Good Lawyers Survive Bad Times
Nuts and Bolts
Promenade A
Promenade B
Promenade C
Promenade D
WEDNESDAY Registration 8 - 9 a.m.
Program Planner/ Moderator
Program Planner/ Moderator
Program Planner/ Moderator
Program Planner/ Moderator
Lori Pirraglia
Ben Brown Charles Sifers
Jim Calloway
Collin Walke
Session 1 9 - 9:50 a.m.
Client Intake: Starting Out on the Right Foot/Making Good Client Choices
Immigration & Criminal Law: A Practical Explanation in Light of Padilla v. Kentucky
50 Tips for Tough Times
Administrative Law Trials: We Aren’t in Kansas Anymore
Jon Ford
Session 2 10 - 10:50 a.m.
Gary Payne
Joan Lopez Campbell Cooke
Temporary Order Hearing: Exhibits Needed and Preparing Your Clients Phil Tucker
Session 3 11 - 11:50 a.m.
Jim Calloway
The Practical & Advance Use of the Science of Eyewitness Identification in the Courtroom PART I
Marketing on a Budget
Get Your Ethics! (ethics)
Mark A. Robertson
Gina Hendryx
The Thrifty Lawyer
Your Solo Shopping List
Professor Gary Wells Ph.D.
Finding Expert Witnesses - Business Valuators and Mental Health Professionals TBD
The Practical & Advance Use of the Science of Eyewitness Identification in the Courtroom PART 2
L. Michele Nelson
Jim Calloway
Professor Gary Wells Ph.D.
12-2 p.m. LUNCH (On your own) Session 4 2 -2:50 p.m.
Dissolution Depositions: Taking and Defending Donelle Ratheal
2148
Criminal Law Motions Practice
Free, Cheap and Easy Technology Tools
TBD
Jim Calloway
The Oklahoma Bar Journal
Your Job as a Criminal Law Attorney Garvin Isaacs
Vol. 81 — No. 26 — 10/2/2010
OBA/CLE Annual Meeting 2010 cont’d Session 5 3 - 3:50 p.m.
Session 6 4 - 4:50 p.m.
Family Law
Criminal Law
How Good Lawyers Survive Bad Times
Nuts and Bolts
Trial Exhibits and Witness: Choosing and Preparation
Representing Persons Charged with Driving Under the Influence
Your Law Firm Finances
Bankrupty Chapter 7: The Ins and Outs
Kimberly Hays
Josh D. Lee Charles Sifers
The End/Beginning: Drafting the Decree/ Pre-Nups for New Beginnings
Working with the Media
Bill LaSorsa
Moderator Doug Dodd
TBD
Jennifer Kirkpatrick
Cutting Costs & Coralling Clients without Compromising Ethics (ethics)
Panel TBD
Mastering the Art of the Deposition Ronald Walker
Gina Hendryx Travis Pickens
4:50 p.m. ADJOURN
November 18, 2010 THURSDAY Registration 8:30 - 9 a.m.
Topic
DAY TWO
Program Moderator: Judge Thomas C. Gillert, District Judge, Tulsa
9 a.m.
Picking Cotton: Our Memoir of Injustice and Redemption
Speakers: Jennifer Thompson-Cannino, Salem, NC Ronald Cotton, Mebane, NC
9:50 a.m.
The Science of Eyewitness Identification
Speaker: Gary D. Wells, Ph.D., Professor of Psychology, Iowa State University, Ames
10:40 a.m.
Break
10:50-11:50 a.m.
Eyewitness Identification in Oklahoma
Vol. 81 — No. 26 — 10/2/2010
Panelists: Michael Huff, Tulsa Police Department, Homicide Division, Tulsa Douglas E. Drummond, Tulsa County First Assistant District Attorney, Tulsa Stephen Kunzweiler, Assistant District Attorney, Tulsa Jennifer Thompson-Cannino Ronald Cotton Gary Wells, Ph.D.
The Oklahoma Bar Journal
2149
House of Delegates Thank you to the County Bar Presidents of: Adair, Alfalfa, Beaver, Beckham, Blaine, Bryan, Canadian, Carter, Cherokee, Choctaw, Cleveland**, Coal, Comanche, Cotton, Creek, Custer, Delaware, Dewey, Ellis, Garfield, Garvin, Grady, Grant, Greer, Harper, Hughes, Jackson, Jefferson, Johnston, Kay, Kingfisher, Kiowa, Logan, Love, Major, Marshall, Mayes, McClain, McCurtain, McIntosh, Murray, Muskogee, Okfuskee, Oklahoma, Osage, Ottawa**, Payne, Pittsburg, Pontotoc, Pottawatomie, Pushmataha, Rogers, Roger Mills, Seminole, Sequoyah, Texas, Tulsa, Wagoner, Washington, Washita, Woods and Woodward counties for submitting your delegate and alternate selections for the upcoming OBA Annual Meeting. (**Reported, awaiting election) Listed below are the counties that have not sent their delegate and alternate selections to the offices of the Oklahoma Bar Association. Please help us by sending the names of your delegates and alternates now. In order to have your delegates/alternates certified, mail or fax delegate certifications to OBA Executive Director John Morris Williams, P.O. Box 53036, Oklahoma City, OK 73152-3036, or Fax: (405) 416-7001. Atoka Caddo Cimarron Craig Harmon Haskell Latimer LeFlore
2150
In accordance with the Bylaws of the Oklahoma Bar Association (5 OS, Ch. 1, App. 2), “The House of Delegates shall be composed of one delegate or alternate from each County of the State, who shall be an active or senior member of the Bar of such County, as certified by the Executive Director at the opening of the annual meeting; providing that each County where the active or senior resident members of the Bar exceed fifty shall be entitled to one additional delegate or alternate for each additional fifty active or senior members or major fraction thereof. In the absence of the elected delegate(s), the alternate(s) shall be certified to vote in the stead of the delegate. In no event shall any County elect more than thirty (30) members to the House of Delegates.” “A member shall be deemed to be a resident, … of the County in which is located his or her mailing address for the Journal of the Association.”
Lincoln Noble Nowata Okmulgee Pawnee Stephens Tillman
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
2010 Registration Form
Please complete a separate form for each registrant.
Name _____________________________________________________________________________________________ E-mail ______________________________________________________________________________________________ Badge Name (if different from roster) ______________________________ Bar No. ____________________________ Address ___________________________________________________________________________________________ City __________________________________ State ________ Zip _______________ Phone ______________________ Name of Non-Attorney Guest _________________________________________________________________________
Check all that apply:
Please change my OBA roster information to the information above. q Yes q No
q Judiciary q OBF Fellow q OBF Past President q OBA Past President q YLD Officer q YLD Board Member q YLD Past President q Board of Bar Examiner q 2010 OBA Award Winner q Delegate q Alternate q County Bar President: County _______________________
q YES! Register me for the 2010 Annual Meeting, November 17, 18 & 19, in Tulsa. Events will be held at the Crowne Plaza Hotel. Registration fee includes continental breakfast in hospitality area, President’s Reception ticket(s), convention gift, Vendors Expo, Music through the Years and Viva Las Vegas Casino Night. q MEMBER: q $50 through Nov. 3; $75 after Nov. 3..................................................................... $ __________ q NEW MEMBER (Admitted after Jan. 1, 2010): q Free through Nov. 3; $15 after Nov. 3......................... $ __________ q LAW STUDENT DIV. q $25 through Nov. 3; $35 after Nov. 3.............................................................. $ __________ I will be attending/participating in the following ticketed events in addition to my registration fee for Annual Meeting: q WED. & THURS.: CLE Multitrack ( ___ [0 or 1] ticket @ $150 through Nov. 3; $175 after Nov. 3; and Plenary $50 for new members through Nov. 3, $75 after Nov. 3) . ............................... $ __________ q WEDNESDAY: CLE Multitrack only ($125/$150)............................................................................ $ __________ q THURSDAY: CLE Plenary only ( ___ [0 or 1] ticket @ $75 through Nov. 3; $100 after Nov. 3; $25 for new members through Nov. 3, $50 after Nov. 3)........................................... $ __________ q THURSDAY: Annual Luncheon ( ___ number of tickets @ $30 each)................................................... $ __________ q FRIDAY: President’s Breakfast ( ___ number of tickets @ $20 each).................................................... $ __________ q P lease check here, if under the Americans with Disabilities Act you require specific aids or services during q Audio q Visual q Mobile (Attach a written description of your needs.) your visit to the OBA Annual Meeting. I will be attending the following ticketed events that do NOT require Annual Meeting registration: q WEDNESDAY: Law School Luncheon – (check one) q OCU q OU q TU ( ___ number of tickets @ $30 each........................................................................ $ __________ TOTAL $ __________ I will be attending the free event(s) below that do(es) NOT require Annual Meeting registration: q Lives in Balance: Lawyers Helping Lawyers PAYMENT OPTIONS: q Incarceration of Women in Oklahoma q Check enclosed: Payable to Okla. Bar Association ER IST REG TO Credit card: q VISA q Mastercard q Discover q American Express YS THREE WA ent paym with form n tratio regis n MAIL this or credit card info to: OBA Annual Meeting P.O. Box 53036 Okla. City, OK 73152 n FAX this registration form with credit card information to: (405) 416-7092. n ONLINE at www.okbar.org ANCELLATION POLICY Full refunds nC will be given through Nov. 10. No refunds will be issued after that date.
Vol. 81 — No. 26 — 10/2/2010
Card #______________________________________________________________ Credit Card CVV/CVC # (on back of card)___________________________________ Exp. Date____________________________________________________________ Authorized Signature ____________________________________________________________________
HOTEL ACCOMMODATIONS:
Fees do not include hotel accommodations. For reservations contact: Crowne Plaza Tulsa Hotel at (800) 227-6963. Call by Oct. 26 and mention hotel code: Oklahoma Bar Association 2010 Convention for a special room rate of $105 per night. For hospitality suites, contact Craig Combs at (405) 416-7040 or e-mail: craigc@okbar.org. The Oklahoma Bar Journal
2151
OBA Resolutions The following resolutions will be submitted to the House of Delegates at the 106th Oklahoma Bar Association Annual Meeting at 10 a.m. Friday, Nov. 19, 2010, at the Crowne Plaza Hotel in Tulsa. Resolutions No. Three and No. Four will be published in the Oct. 16 issue of the Oklahoma Bar Journal.
RESOLUTION NO. FIVE: CONFORMING STATUTORY LANGUAGE REGARDING SERVICE OF JUDGMENTS, DECREES OR APPEALABLE ORDERS BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed legislation amending 12 O.S. Supp. 2002, Section 990A, Appeal to Supreme Court of Oklahoma - Filing of Petition - Rules - Procedure – Dismissal. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) Section 1. AMENDATORY. 12 O.S. Supp. 2002, Section 990A, is amended to read as follows: A. An appeal to the Supreme Court of Oklahoma, if taken, must be commenced by filing a petition in error with the Clerk of the Supreme Court of Oklahoma within thirty (30) days from the date a judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title is filed with the clerk of the trial court. If the appellant did not prepare the judgment, decree, or appealable order, and Section 696.2 of this title required a copy of the judgment, decree, or appealable order to be mailed to served upon the appellant, and the court records do not reflect the mailing service of a copy of the judgment, decree, or appeal2152
able order to the appellant within three (3) days, exclusive of weekends and holidays, after the filing of the judgment, decree, or appealable order, the petition in error may be filed within thirty (30) days after the earliest date on which the court records show that a copy of the judgment, decree, or appealable order was mailed to served upon the appellant. B. The filing of the petition in error may be accomplished either by delivery or mailing by certified or first-class mail, postage prepaid, to the Clerk of the Supreme Court. The date of filing or the date of mailing, as shown by the postmark affixed by the post office or other proof from the post office of the date of mailing, shall constitute the date of filing of the petition in error. If there is no proof from the post office of the date of mailing, the date of receipt by the Clerk of the Supreme Court shall constitute the date of filing of the petition in error. C. The Supreme Court shall provide by rule, which shall have the force of statute, and be in furtherance of this method of appeal: 1. For the filing of cross-appeals; 2. The procedure to be followed by the trial courts or tribunals in the preparation and authentication of transcripts and records in cases appealed under this act; and 3. The procedure to be followed for the completion and submission of the appeal taken hereunder. D. In all cases the record on appeal shall be complete and ready for filing in the Supreme Court within the time prescribed by rule. E. Except for the filing of a petition in error as provided herein, all steps in perfecting an appeal are not jurisdictional. F. 1. If a petition in error is filed before the time prescribed in this section, it shall be dismissed as premature; however, if the time to
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
commence the appeal accrues before the appeal is dismissed, the appellant may file a supplemental petition in error, without the payment of any additional costs. Such supplemental petition in error shall state when the time for commencing the appeal began and shall set out all matters which have occurred since the filing of the original petition in error and which should be included in a timely petition in error. When a proper supplemental petition in error is filed, the appeal shall not be dismissed on the ground that it was premature. 2. If an appeal is dismissed on the ground that it was premature, the appellant may file a new petition in error within the time prescribed in this section for filing petitions in error or within thirty (30) days after notice is mailed to the parties which states that the appeal was dismissed on the ground that it was premature, whichever date is later. A notice that an appeal was dismissed on the ground that it was premature shall include the date of mailing and the ground for dismissal. G. 1. No designation of record shall be accepted by the district court clerk for filing unless it contains one of the following: a. where a transcript is designated: A signed acknowledgment from the court reporter who reported evidence in the case indicating receipt of the request for transcript, the date received, and the amount of deposit received, if applicable, in substantially the following form: I, ________, court reporter for the above styled case, do hereby acknowledge this request for transcript on this ____ day of____, 20__, and have received a deposit in the sum of $___ _. , or b. where a transcript is not designated: A signed statement by the attorney preparing the designation of record stating that a transcript has not been ordered and a brief explanation why, in substantially the following form: I, ________, attorney for the appellant, hereby state that I have not ordered a transcript because: (1) a transcript is not necessary for this appeal, or made.
(2) no stenographic reporting was
2. This section shall not apply to counterdesignations of record filed by appellees.
Vol. 81 — No. 26 — 10/2/2010
RESOLUTION NO. SIX: CONFORMING RULE REGARDING SERVICE OF JUDGMENTS, DECREES OR APPEALABLE ORDERS BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed amendments to Oklahoma Supreme Court Rule 1.21 relating to computation of time for commencement of an appeal. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) OKLAHOMA SUPREME COURT RULES Rules 1.1 through 1.20 – No changes. Rule 1.21. Computation of time for commencement of appeal (a) District Court Appeals. An appeal from the district court may be commenced by filing a petition in error with the Clerk of the Supreme Court within thirty days from the date the judgment, decree, or appealable order prepared in conformance with 12 O.S.2001 § 696.3 was filed with the clerk of the district court. 12 O.S.2001 § 990A. The date of filing of a judgment, decree or appealable order with the clerk of the district court shall be presumed to be the date of the district court clerk’s file stamp thereon. If the appellant did not prepare the judgment, decree, or appealable order, and Section 696.2 of this title required a copy of the judgment, decree, or appealable order to be mailed to served upon the appellant, and the court records do not reflect the mailing service of a copy of the judgment, decree, or appealable order to the appellant within three (3) days, exclusive of weekends and holidays, after the filing of the judgment, decree, or appealable order, the petition in error may be filed within thirty (30) days after the earliest date on which the court records show that a copy of the judgment, decree, or appealable order was mailed to served upon the appellant. 12 O.S.2001 § 990A. See Tidemark Exploration, Inc. v. Good, 1998 OK 67, 967 P.2d 1194. The service shall be
The Oklahoma Bar Journal
2153
done in the manner provided in 12 O.S. § 2005 for the service of papers. 12 O.S. § 696.2(B). For cross or multiple appeals Rule 1.27 is applicable. The interval allowed for filing a petition in error may not be extended by either the district court or the Supreme Court. The times to appeal final orders of tribunals other than the district court (for example, Corporation Commission, Tax Commission, and Court of Tax Review) are governed by the specific statutory authority for such appeals, except when these Rules specifically authorize a different period. See Part IV of these Rules. (b) Time for Filing Petition In Error in Appeals to Review Driver’s License Orders and Water Conservancy Decisions. An appeal from a district court’s decision falling within the provisions of 47 O.S.2001 § 6-211 Subdiv. (M) (to review a person’s right to a driver’s license) may be prosecuted in the time provided by the cited section or these rules. See, 47 O.S.2001 § 6-211 Subdiv. (M), Rules 1.34(c) and 1.10(c)(2), and Mowdy v. State ex rel. Dept. of Public Safety, 1974 OK 83, 524 P.2d 5. Appeals under 82 O.S.2001 § 545 and 82 O. S.2001 § 508 (to review a decree establishing or refusing to establish a water conservancy district) may be prosecuted either within the time and in the manner provided by the cited sections or in accordance with these rules: but in water conservancy appeals, whether prosecuted in the statutory man-ner or under these rules, the party taking the appeal shall give a cost bond. Letteer v. Conservancy District No. 30, 1963 OK 218, 385 P.2d 796, 802. (c) County Excise Board Budget Setting Appeals. Any party that takes issue with the actions of the county excise board in its budget setting process shall seek the proper remedy in the district court. After evidentiary hearing in the district court, any party aggrieved by a final order approving or disapproving the setting of a county budget by the excise board must file their petition in error within thirty (30) days of the filing of a final order. (d) Proceedings to Review a Decision of the Workers’ Compensation Court. An original proceeding in the Supreme Court to review an order of the Workers’ Compensation Court shall be brought in the time and manner as set forth in 85 O.S.2001 3.6 and Rules 1.100--1.106 of the Rules of the Supreme Court. The preparation of orders, decisions and awards and the 2154
taking of appeals in workers’ compensation cases shall be governed by the provisions of Title 85 of the Oklahoma Statutes. Those provisions in 12 O.S.2001 §§ 696.2, 696.3 do not apply to orders of the Workers’ Compensation Court. 12 O.S.2001 § 696.2(E). (e) Contempt Appeals and Juvenile Delinquency Appeals. (1) An appeal or habeas corpus proceeding to review a sentence imposed for contempt of court occurring in a civil action or proceeding shall be brought in the Supreme Court; an appeal or habeas corpus proceeding to review a sentence imposed for contempt of court occurring in a criminal prosecution or a grand jury proceeding shall be brought in the Court of Criminal Appeals. If a contempt appeal or habeas corpus proceeding is not brought in the appellate court designated as proper by this rule, the case will be transferred to the proper court either on motion or sua sponte. Art. VII, 4, Okla.Const. A contempt appeal shall be considered timely brought for review, on transfer to either appellate court, if it was commenced in the Supreme Court within the time limit and in the manner prescribed by these Rules or in the Court of Criminal Appeals within the time limit and in the manner prescribed by the rules of that court. See, 22 O.S. 2001 Ch. 18. (2) An appeal or habeas corpus proceeding to review a trial court’s decision in a proceeding for adjudication of juvenile delinquency or for certification of a juvenile to be prosecuted as an adult shall be brought in the Court of Criminal Appeals. An appeal or habeas corpus proceeding to review a trial court’s decision in any other juvenile proceeding shall be brought in the Supreme Court. If a juvenile delinquency appeal or habeas corpus proceeding relative thereto is not brought in the appellate court designated as proper by this rule, the case will be transferred to the proper court either on motion or sua sponte. Art. VII, 4, Okla.Const. A juvenile delinquency appeal shall be considered timely brought for review, on transfer to either appellate court, if it was commenced in the Court of Criminal Appeals within the time limit and in the manner prescribed by the rules of that court or in the Supreme Court within the time limit and in the manner prescribed by these Rules. Rules 1.22 through 1.301 – No changes.
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
RESOLUTION NO. SEVEN: ELIMINATING STATUTORY TEXT THAT CREATES CONFLICTING DEADLINES ON SUMMARY JUDGMENT PROCEEDINGS BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed legislation amending 12 O.S. Supp. 2009, Section 2056, Motion for Summary Judgment. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) Section 1. AMENDATORY. 12 O.S. Supp. 2009, Section 2056, is amended to read as follows: A. BY A CLAIMING PARTY. A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim. The motion may be filed at any time after twenty (20) days have passed from commencement of the action or the opposing party serves a motion for summary judgment. B. BY A DEFENDING PARTY. A party against whom relief is sought may move at any time, with or without supporting affidavits, for summary judgment on all or part of the claim. C. SERVING THE MOTION AND PROCEEDINGS. The motion must be served at least ten (10) days before the day set for the hearing. An opposing party may serve opposing affidavits before the hearing day. The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. D. CASE NOT FULLY ADJUDICATED ON THE MOTION. If summary judgment is not rendered on the whole action, the court should, to the extent practicable, determine what material facts are not genuinely at issue. The court should so determine by examining the pleadings and evidence before it and by interrogating the attorneys. It should then issue an order specifying what facts, including items of damages or other relief, are not genuinely at issue. Vol. 81 — No. 26 — 10/2/2010
The facts so specified must be treated as established in the action. An interlocutory summary judgment may be rendered on liability alone, even if there is a genuine issue on the amount of damages. E. AFFIDAVITS AND FURTHER TESTIMONY. A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must, by affidavits or as otherwise provided in this rule, set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. F. WHEN AFFIDAVITS ARE UNAVAILABLE. If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may deny the motion, order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken or issue any other just order. G. AFFIDAVITS SUBMITTED IN BAD FAITH. If satisfied that an affidavit under this rule is submitted in bad faith or solely for delay, the court must order the submitting party to pay the other party the reasonable expenses, including attorney fees, it incurred as a result. An offending party or attorney may also be held in contempt.
RESOLUTION NO. EIGHT: CLARIFYING STATUTORY LANGUAGE REGARDING INTERRELATION OF STATUTES DEALING WITH DISMISSAL BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative pro-
The Oklahoma Bar Journal
2155
gram, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar. org, proposed legislation amending 12 O.S. Supp. 2009, Section 683, Dismissal without Prejudice. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) Section 1. AMENDATORY. 12 O.S. Supp. 2009, Section 683, is amended to read as follows: Except as provided in Section 684 and Section 684.1 of this title, an action may be dismissed, without prejudice to a future action: 1. By the plaintiff, before the final submission of the case to the jury, or to the court, where the trial is by the court; 2. By the court, where the plaintiff fails to appear on the trial; 3. By the court, for the want of necessary parties; 4. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence; 5. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action; and 6. In all other cases, upon the trial of the action, the decision must be upon the merits.
RESOLUTION NO. NINE: CLARIFYING STATUTORY LANGUAGE REGARDING INTERRELATION OF STATUTES DEALING WITH DISMISSAL BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar. org, proposed legislation amending 12 O.S. Supp. 2009, Section 684, Dismissal before Trial Commenced without Court Order. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) 2156
Section 1. AMENDATORY. 12 O.S. Supp. 2009, Section 684, is amended to read as follows: A. An action may be dismissed by the plaintiff without an order of court by filing a notice of dismissal at any time before the final pretrial conference. After the final pretrial hearing conference, an action may only be dismissed by agreement of the parties or by the court. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice. B. Except as provided in subsection A of this section, an action shall not be dismissed at the plaintiff’s request except upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaims can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this subsection is without prejudice. C. For failure of the plaintiff to prosecute or to comply with the provisions of this section or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. D. The provisions of this section apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to subsection A of this section shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing. E. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.
RESOLUTION NO. TEN: EXTENDING WORK-PRODUCT PROTECTION TO MOST COMMUNICATIONS BETWEEN AN ATTORNEY AND A TESTIFYING EXPERT
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar. org, proposed legislation amending 12 O.S. Supp. 2010, Section 3226, General Provisions Governing Discovery. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) Section 1. AMENDATORY. 12 O.S. Supp. 2010, Section 3226, is amended to read as follows: A. DISCOVERY METHODS; INITIAL DISCLOSURES. 1. DISCOVERY METHODS. Parties may obtain discovery by one or more of the following methods: Depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Except as provided in this section or unless the court orders otherwise under this section, the frequency of use of these methods is not limited. 2. INITIAL DISCLOSURES. a. Except in categories of proceedings specified in subparagraph b of this paragraph, or to the extent otherwise stipulated or directed by order, a party, without awaiting a discovery request, shall provide to other parties a computation of any category of damages claimed by the disclosing party, making available for inspection and copying the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered. b. The following categories of proceedings are exempt from initial disclosure under subparagraph a of this paragraph: (1) an action for review of an administrative record, (2) a petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence, Vol. 81 — No. 26 — 10/2/2010
(3) an action brought without counsel by a person in custody of the United States, a state, or a state subdivision, (4) an action to enforce or quash an administrative summons or subpoena, (5) an action by the United States to recover benefit payments, (6) an action by the United States to collect on a student loan guaranteed by the United States, (7) a proceeding ancillary to proceedings in other courts, and tion award.
(8) an action to enforce an arbitra-
c. Disclosures required under this paragraph shall be made at or within sixty (60) days after service unless a different time is set by stipulation or court order, or unless a party objects that initial disclosures are not appropriate in the circumstances of the action and states the objection in a motion filed with the court. In ruling on the objection, the court shall determine what disclosures, if any, are to be made and set the time for disclosure. A party shall make its initial disclosures based on the information then readily available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures. B. DISCOVERY SCOPE AND LIMITS. Unless otherwise limited by order of the court in accordance with the Oklahoma Discovery Code, the scope of discovery is as follows: 1. IN GENERAL. a. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any documents, electronically stored information or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not a ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably
The Oklahoma Bar Journal
2157
calculated to lead to the discovery of admissible evidence. b. A party shall produce upon request pursuant to Section 3234 of this title, any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this section, an application for insurance shall not be treated as a part of an insurance agreement. 2. LIMITATIONS ON FREQUENCY AND EXTENT. a. By order, the court may alter the limits on the length of depositions under Section 3230 of this title, on the number of interrogatories under Section 3233 of this title, on the number of requests to produce under Section 3234 of this title, or on the number of requests for admission under Section 3236 of this title. b. A party is not required to provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may order discovery from such sources if the requesting party shows good cause, considering the limitations of subparagraph c of paragraph 2 of subsection B of this section. The court may specify conditions for the discovery. c. On motion or on its own, the court shall limit the frequency or extent of discovery otherwise allowed if it determines that: (1) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, (2) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action, or (3) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, 2158
the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. 3. TRIAL PREPARATION: MATERIALS. a. Subject to the provisions of paragraph 4 of this subsection, discovery may be obtained of Ordinarily, a party may not discover documents and tangible things otherwise discoverable under paragraph 1 of this subsection and that are prepared in anticipation of litigation or for trial by or for another party or by or for the its representative of that other party, (including his the other party’s attorney, consultant, surety, indemnitor, insurer or agent). But, subject to the provisions of paragraph 4 of this subsection, those materials may be discovered if: (1) they are otherwise discoverable under paragraph 1 of this subsection; and (2) only upon a showing that the party shows that it seeking discovery has substantial need of for the materials in the preparation of his case and that he is unable, to prepare its case and cannot, without undue hardship, to obtain the their substantial equivalent of the materials by other means. b. If the court orders In ordering discovery of such materials, it must when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an a party’s attorney or other representative of a party concerning the litigation. c. A party or other person may, on request and obtain, without the required showing, obtain the person’s own previous provided for in this paragraph, a statement concerning about the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order, and the . The provisions of paragraph 4 of subsection A of Section 3237 of this title apply to the award of expenses incurred in relation to the motion. A previous For purposes of this paragraph, a statement previously made is either: (1)a. a written statement that the person has signed or otherwise adopted or approved by the person making it, or
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
(2)b. a contemporaneous stenographic, mechanical, electrical, or other recording, or a transcription thereof, which substantially recites an recites substantially verbatim the person’s oral statement by the person making it and contemporaneously recorded. 4. TRIAL PREPARATION: EXPERTS. a. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of paragraph 1 of this subsection and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (1) A party may, through interrogatories, require any other party to identify each person whom that other party expects to call as an expert witness at trial and give the address at which that expert witness may be located. (2) After disclosure of the names and addresses of the expert witnesses, the other party expects to call as witnesses, the party, who has requested disclosure, may depose any such expert witnesses subject to scope of this section. Prior to taking the deposition the party must give notice as required in subsections A and C of Section 3230 of this title. If any documents are provided to such disclosed expert witnesses, the documents shall not be protected from disclosure by privilege or work product protection and they may be obtained through discovery. (3) In addition to taking the depositions of expert witnesses the party may, through interrogatories, require the party who expects to call the expert witnesses to state the subject matter on which each expert witness is expected to testify; the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion; the qualifications of each expert witness, including a list of all publications authored by the expert witness within the preceding ten (10) years; the compensation to be paid to the expert witness for the testimony and preparation for the testimony; and a listing of any other cases in which the expert witness has testified as an expert at trial or by deposition within the preceding four (4) years. An interrogatory seeking the information specified above shall be treated as a single interrogatory for purposes of the limitation on the number of interrogatories in Section 3233 of this title. Vol. 81 — No. 26 — 10/2/2010
b. The protection provided by paragraph 3 of this subdivision extends to communications between the party’s attorney and any expert witness retained or specially employed to provide expert testimony in the case or whose duties as the party’s employee regularly involve giving expert testimony, except to the extent that the communications: (1) Relate to compensation for the expert’s study or testimony; (2) Identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (3) Identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed. c.b. A party may Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare preparation for trial and who is not expected to be called as a witness at trial. But a party may do so only , only upon motion, when the court may order discovery as provided in Section 3235 of this title or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by any other means. result:
d.c. Unless manifest injustice would
(1) The court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under division (2) of subparagraph a of this paragraph and subparagraph cb of this paragraph. (2) The court shall require that the party seeking discovery with respect to discovery obtained under subparagraph cb of this paragraph, pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. 5. CLAIMS OF PRIVILEGE OR PROTECTION OF TRIAL PREPARATION MATERIALS. a. When a party withholds information otherwise discoverable under the Okla-
The Oklahoma Bar Journal
2159
homa Discovery Code by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
d. that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters,
b. If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party shall promptly return, sequester, or destroy the specified information and any copies the party has; shall not use or disclose the information until the claim is resolved; shall take reasonable steps to retrieve the information if the party has disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party shall preserve the information until the claim is resolved. This mechanism is procedural only and does not alter the standards governing whether the information is privileged or subject to protection as trial preparation material or whether such privilege or protection has been waived.
g. that a trade secret or other confidential research, development or commercial information not be disclosed or be disclosed only in a designated way, and
C. PROTECTIVE ORDERS. 1. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer, either in person or by telephone, with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or on matters relating to a deposition, the district court in the county where the deposition is to be taken may enter any order which justice requires to protect a party or person from annoyance, harassment, embarrassment, oppression or undue delay, burden or expense, including one or more of the following: a. that the discovery not be had, b. that the discovery may be had only on specified terms and conditions, including a designation of the time or place, c. that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery, 2160
e. that discovery be conducted with no one present except persons designated by the court, f. that a deposition after being sealed be opened only by order of the court,
h. that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; 2. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of paragraph 4 of subsection A of Section 3237 of this title apply to the award of expenses incurred in relation to the motion. Any protective order of the court which has the effect of removing any material obtained by discovery from the public record shall contain the following: a. a statement that the court has determined it is necessary in the interests of justice to remove the material from the public record, b. specific identification of the material which is to be removed or withdrawn from the public record, or which is to be filed but not placed in the public record, and c. a requirement that any party obtaining a protective order place the protected material in a sealed manila envelope clearly marked with the caption and case number and is clearly marked with the word “CONFIDENTIAL”, and stating the date the order was entered and the name of the judge entering the order; 3. No protective order entered after the filing and microfilming of documents of any kind shall be construed to require the microfilm record of such filing to be amended in any fashion; 4. The party or counsel which has received the protective order shall be responsible for promptly presenting the order to appropriate court clerk personnel for appropriate action;
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
5. All documents produced or testimony given under a protective order shall be retained in the office of counsel until required by the court to be filed in the case; 6. Counsel for the respective parties shall be responsible for informing witnesses, as necessary, of the contents of the protective order; and 7. When a case is filed in which a party intends to seek a protective order removing material from the public record, the plaintiff(s) and defendant(s) shall be initially designated on the petition under pseudonym such as “John or Jane Doe”, or “Roe”, and the petition shall clearly indicate that the party designations are fictitious. The party seeking confidentiality or other order removing the case, in whole or in part, from the public record, shall immediately present application to the court, seeking instructions for the conduct of the case, including confidentiality of the records. D. SEQUENCE AND TIMING OF DISCOVERY. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence. The fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay discovery by any other party. E. SUPPLEMENTATION OF RESPONSES. A party who has responded to a request for discovery with a response that was complete when it was made is under no duty to supplement the response to include information thereafter acquired, except as follows: 1. A party is under a duty seasonably to supplement the response with respect to any question directly addressed to: a. the identity and location of persons having knowledge of discoverable matters, and b. the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the testimony of the person; 2. A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party obtains information upon the basis of which: Vol. 81 — No. 26 — 10/2/2010
a. (1) the party knows that the response was incorrect in some material respect when made, or (2) the party knows that the response, which was correct when made, is no longer true in some material respect, and b. the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; and 3. A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. F. DISCOVERY CONFERENCE. At any time after commencement of an action, the court may direct the attorneys for the parties to appear for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes: 1. A statement of the issues as they then appear; 2. A proposed plan and schedule of discovery; 3. Any limitations proposed to be placed on discovery; 4. Any other proposed orders with respect to discovery; and 5. A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Each party and his attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. Notice of the motion shall be served on all parties. Objections or additions to matters set forth in the motion shall be served not later than ten (10) days after service of the motion. Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action.
The Oklahoma Bar Journal
2161
In preparing the plan for discovery the court shall protect the parties from excessive or abusive use of discovery. An order shall be altered or amended whenever justice so requires.
able inquiry consistent with the Oklahoma Discovery Code and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law;
Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial conference.
2. Interposed in good faith and not primarily to cause delay or for any other improper purpose; and
G. SIGNING OF DISCOVERY REQUESTS, RESPONSES AND OBJECTIONS. Every request for discovery, response or objection thereto made by a party represented by an attorney shall be signed by at least one of the party’s attorneys of record in the party’s individual name whose address shall be stated. A party who is not represented by an attorney shall sign the request, response or objection and state the party’s address. The signature of the attorney or party constitutes a certification that the party has read the request, response or objection, and that it is: 1. To the best of the party’s knowledge, information and belief formed after a reason-
3. Not unreasonable or unduly burdensome or expensive, given the nature and complexity of the case, the discovery already had in the case, the amount in controversy, and other values at stake in the litigation. If a request, response or objection is not signed, it shall be deemed ineffective. If a certification is made in violation of the provisions of this subsection, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response or objection is made, or both, an appropriate sanction, which may include an order to pay to the amount of the reasonable expenses occasioned thereby, including a reasonable attorney fee.
"+( -.$+1/$ $4 551&,$6,10 4(5(065
2(0,0* #174
$9 4$&6,&(
&61%(4 -.$+1/$ $4 (06(4 $ / (*,564$6,10 106,0(06$. 4($-)$56
$ / < 2 / 70&+ 2418,'(' %; -.$+1/$ 66140(;5 767$. 0574$0&( 1) -.$+1/$ 4(4(*,564$6,10 4(37,4(' 106$&6 $4- !&+0(,'(9(06
14 /$4-5 1-%$4 14*
+1745 +1745 (6+,&5 "+,5 241*4$/ ,5 )4(( %76 ;17 /756 4(*,56(4 61 $66(0'
(6 ;
174 . $
9 24 $&
6,&( 5
6$46(
' ,0 6 +( 4,
*+6 '
,4(&6 ,
10
)14/(4.; (9 $9;(4 :2(4,(0&(
2162
The Oklahoma Bar Journal
Vol. 81 â&#x20AC;&#x201D; No. 26 â&#x20AC;&#x201D; 10/2/2010
Legal Aid Services of Oklahoma Inc. Oklahoma Indian Legal Services Inc.
F AMILY P RACTICE M ONTAGE XIV S ELECTED TOPICS FOR PRO BONO ATTORNEYS Monday, October 25, 2010 Oklahoma Bar Center, Emerson Hall, 1901 N. Lincoln Blvd., Oklahoma City, Oklahoma MCLE Credit of 7.0 Hours, Including 1.0 hours of ethics PROGRAM AGENDA Moderator: Richard J. Vreeland 8:30-8:55
Registration & Continental Breakfast
8:55-9:00
Welcome
9:00-9:50
Recent Developments in Family Law Robert G. Spector, Glenn R. Watson Centennial Chair in Law, Univ. of Oklahoma College of Law
9:55-10:45
Understanding the Hidden Dynamics of Domestic Violence. Matt Atkinson, Oklahoma Coalition Against Domestic Violence and Sexual Assault
10:50-11:40
Working With OCSS as a Necessary Party Amy Wilson and Elizabeth Wilson, Oklahoma Child Support Services
11:40-1:00
Lunch (on your own) Sign-in after lunch for the afternoon session.
1:00-1:50
Domestic Violence â&#x20AC;&#x201C; Law Enforcement Perspective Detective Robert Kemmet, Oklahoma City Police Department
1:55-2:45
The Power of Story Paula Wood and Richard Goralewicz, Staff Attorneys, Legal Aid Services of Oklahoma Inc.
2:55-3:45
Ethics Update 2010 Travis Pickens, Ethics Counsel, Oklahoma Bar Association
3:50-4:40
UCCJEA â&#x20AC;&#x201C; Still Misunderstood After All These Years T. Neil Lynn, Oklahoma City Managing Attorney, Legal Aid Services of Oklahoma Inc.
))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))) * $
% " $ ! $
! $ &((###' ' ( ' " $ # ! # ' & $ ! ! % " $ ! ! ! ! # $ ! ! # ! " ! %
! ! ' ! $ ! ! ! ! ' ))) ))) )) ))) ' ))))))))))))))))))) * + )))))))))))))))))))))) ( ))))))))))))))))))))))))))))))))))) )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))
! ! !% " !%
$ # 3/4)377)5712(0)7//)310)0530 #' , ' ' # " # & # % ! '% 18/0 ! '% ' 001% #% 620/5% "& *3/4+ 377)5652
Vol. 81 â&#x20AC;&#x201D; No. 26 â&#x20AC;&#x201D; 10/2/2010
The Oklahoma Bar Journal
2163
Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Thursday, September 23, 2010 RE-2009-1127 — On August 12, 2004, Appellant, Brian K. Keeling, pled guilty in Pontotoc County District Court Case No. CF-2004-43 to Lewd Molestation. He was sentenced to five years suspended with rules and conditions of probation. The State filed an application to revoke Appellant’s suspended sentence on June 23, 2005. An amended application to revoke was filed February 17, 2006. On April 7, 2008, a second amended application to revoke was filed. A third amended application to revoke was filed on November 10, 2008, Following a hearing December 1, 2009, the Honorable Steven Kessinger, Special Judge, found Appellant violated the rules and conditions of his suspended sentence as alleged and revoked Appellant’s suspended sentence in full, five years. Appellant appeals from the revocation of his suspended sentence. From this judgment and sentence, Brian K. Keeling has perfected his appeal. The revocation of Appellant’s suspended sentence in Pontotoc County District Court Case No. CF-2004-43 is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. F-2009-313 — Logan Adam Deaton, Appellant, was charged with and tried by jury on one count of first degree rape in violation of 21 O.S.Supp.2006, § 1111 and 21 O.S.2001, § 1114, and one count of assault and battery with intent to kill, in violation of 21 O.S.Supp.2007, § 652, in the District Court of Cleveland County, case number CF-2007-1914, before the Honorable Lori M. Walkley, District Judge. The jury found Deaton guilty of first degree rape, but not guilty on the assault and battery charge, and set punishment at thirty-five (35) years imprisonment. Judge Walkley sentenced Deaton in accordance with the jury verdict, suspending the last ten years. From this judgment and sentence, Logan Adam Deaton has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs in Results; Lumpkin, J., Concurs; Smith, J., Concurs. F-2009-283 — Appellant, Connie C. Holman, represented by counsel, entered a plea of guilty 2164
to Possession of a Controlled Dangerous Substance with Intent to Distribute, in Oklahoma County District Court Case No. CF-2007-77. Holman’s sentencing was deferred for five years. On February 18, 2009, the State filed an application to accelerate Holman’s sentence. A hearing was held on the State’s application on March 18, 2009, before the Honorable Ray C. Elliott, District Judge. At the conclusion of the hearing, Holman’s deferred sentence was accelerated and she was sentenced to twenty years incarceration. From that order of acceleration, Holman has perfected this appeal. The order of the District Court of Oklahoma County accelerating Holman’s deferred sentence in Case No. CF-2007-77 is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. C-2010-243 — John William Childers, Petitioner, was charged in the District Court of Delaware County, Case No. CF-2007-341, with Sex Offender Living within 2000 Feet of a School and in Case No. & CF-2007-359, with Failure to Notify Address Change as a Sex Offender, both After Former conviction of Two or More Felonies. Petitioner entered a blind plea of guilty to the crimes charged. The Honorable Barry V. Denney sentenced Petitioner to life imprisonment on each charge with the sentences to run consecutively. Petitioner subsequently filed a motion to withdraw his guilty plea. The district court denied the motion and this appeal followed. The Petition for Writ of Certiorari is DENIED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs in Results; Lewis, J., Concurs in Results; Smith, J., Concurs in Results. F-2009-876 — Wesley Ray Mulligan, Appellant, was tried by jury for the crime of Endeavoring to Manufacture Controlled Drugs (Methamphetamine), after former conviction to two or more felonies, in Case No. CF-2009-988 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment forty (40) years imprisonment and a $300,000 fine. The trial court sentenced accordingly. From this judgment and sentence Wesley Ray Mulligan has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
in Results; Lewis, J., Concurs; Smith, J., Recuse. F-2008-687 and F-2008-688 — Marquis Lajuan Mitchell, Appellant, was tried by jury in Case No. CF-2006-6332 for the crimes of Larcency of an automobile (Count 1) in violation of 21 O. S.Supp.2002, § 1720, Aggravated eluding of police officer (Count 2), in violation of 21 O. S.2001, § 540A(B), and Possession of firearm (sawed-off shotgun)(Count 3), in violation of 21 O.S.Supp.2005, § 1283; and in Case No. CF2006-6333 for the crimes of First Degree Murder (Count 1), in violation of 21 O.S.Supp.2006, § 701.7, Shooting with intent to kill (Count 2), in violation of 21 O.S.Supp.2005, § 652, Using a vehicle to facilitate the intentional discharge of a firearm (drive-by shooting)(Count 3), in violation of 21 O.S.Supp.2005, § 652(B), and Possession of a firearm (semi-automatic rifle) by a previously adjudicated juvenile felon (Count 4), in violation of 21 O.S.Supp.2005, § 1283, in the District Court of Oklahoma County. The jury returned a verdict of guilty on all counts and recommended as punishment in Case No. CF-2006-6332 – five years on Count 1, one year on Count 2, and three years on Count 3, and in Case No. CF-2006-6333 – Life on Count 1, 18 years on Count 2, 12 years on Count 3, and seven years on Count 4. The trial court sentenced accordingly. From these judgments and sentences Marquis Lajuan Mitchell has perfected his appeals. The convictions in Case Numbers CF-2006-6332 and CF-2006-6333 are AFFIRMED. The cases are remanded to the district court, however, for the limited purpose of entering a nunc pro tunc correction to the judgment and sentence documents to ensure they accurately reflect the sentences as orally pronounced from the bench. That is, the judgment and sentence documents must be corrected to show that that the sentences on each count in each case will run consecutively and that the sentences in Case No. CF-2006-6332 and Case No. CF-2006-6333 will run concurrently. OPINION BY: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs. Friday, September 24, 2010 C-2009-542 — Roscoe Curtis Gatewood, Jr., Petitioner, entered blind pleas of guilty to the crimes of Trafficking in Illegal Drugs (Cocaine Base) in Case No. CF-2007-130, and Using a Telephone to Cause the Commission of the Crime of Trafficking in Illegal Drugs in Case No. CF-2007-131, in the District Court of Love County. The Honorable John Scaggs accepted Vol. 81 — No. 26 — 10/2/2010
Gatewood’s pleas and, following the completion of a presentence investigation report, sentenced him to 35 years imprisonment for drug trafficking and 10 years imprisonment for illegally using a telephone to facilitate drug trafficking, with the sentences to be served concurrently. After the prescribed hearing, Gatewood’s timely motion, and a subsequent amendment to that motion, were denied by Judge Scaggs. Gatewood now appeals that denial and asks this Court to issue a Writ of Certiorari allowing him to withdraw his pleas and proceed to trial. The Petition for Writ of Certiorari is GRANTED. The Judgment and Sentence of the district court is REVERSED and Gatewood is allowed to withdraw his pleas of guilt. Gatewood’s Motion to Supplement the Record and/or for Evidentiary Hearing is GRANTED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., dissents; Lewis, J., concurs; Smith, J., dissents. F-2009-697 — Justin Dale Yost, Appellant, was convicted, after jury trial, of Manslaughter in the First Degree in violation of 21 O.S.2001, § 711(1), after former conviction of one felony, in the District Court of Ottawa County, case number CF-2008-235, before the Honorable Robert G. Haney, District Judge. The jury assessed punishment at twenty-five (25) years imprisonment and Judge Haney sentenced Yost in accordance with the jury verdict. From this judgment and sentence, Justin Dale Yost has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED. Appellant’s motion for an evidentiary hearing is DENIED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs in Results; Lumpkin, J., Concurs; Smith, J., Concurs. Tuesday, September 28, 2010 F-2009-792 — Appellant John Wesley Larkin, Jr., was tried by jury and convicted of First Degree Manslaughter (Count I) and Possession of a Firearm, After Former Conviction of a Felony (Count II), Case No. CF-2008-2948, in the District Court of Tulsa County. The jury recommended as punishment imprisonment for seventeen and half (17½) years in Count I and four (4) years 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; Smith, J., concur.
The Oklahoma Bar Journal
2165
COURT OF CIVIL APPEALS (Division No. 1) Friday, September 17, 2010 106,442 — In Re The Marriage of Boeckman. Melody Boeckman, Petitioner/Appellee, vs. Brian Boeckman, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Carl Funderburk, Judge. Respondent/Appellant Brian Boeckman (Husband) appeals from a September 24, 2008 judgment finding Husband guilty of indirect contempt for failure to pay alimony and attorney fees awarded to Petitioner/Appellee Melody Boeckman (Wife) in a temporary order in the parties’ divorce proceeding. After Husband filed this appeal from the contempt judgment, Husband and Wife entered an agreed dissolution decree in which they agreed that the contempt judgment would not merge into the decree. The record supports the trial court’s finding of clear and convincing evidence that Husband wilfully refused to pay a lawful order. We AFFIRM the judgment. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. Friday, September 24, 2010 106,790 — 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. Appeal from the District Court of Noble County, Oklahoma. Honorable Dan Allen, Judge. 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 2166
cross-appeal. The claims made in the crossappeal are therefore abandoned and we affirm the final distribution order. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Buettner, P.J.; Hansen, J., concurs in result, and Hetherington, J., concurs. 107,038 — In Re the Marriage of: S.M. Sager, now Hicks, Petitioner/Appellee, and S.D. Sager, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Carlos J. Chappelle, Judge. In postdecree contempt proceedings filed by S.M. Sager, now Hicks (Appellee) against S.D. Sager (Appellant) for noncompliance with their consent decree of dissolution, Appellant seeks review of a trial court order finding him guilty of indirect contempt for failure to pay child support and other child-related expenses and sentencing him to 6 months incarceration subject to purge. We conclude the trial court lacked jurisdiction over the temporary orders upon which Ex-wife’s indirect contempt proceeding was partly based in the absence of an application of contempt citation alleging violations of such orders filed prior to the court’s approval of the 11/9/06 Agreed Decree. The trial court erred, as a matter of law, by including in the total purge fee (1) arrearage amounts in excess of the amounts Appellee originally claimed in her 5/19/08 Contempt Application, and (2) support obligations which arose by a valid and enforceable order rendered subsequent to the 11/9/06 Agreed Decree. These legal errors require that we reverse the order and remand with instructions to dismiss it. REVERSED AND REMANDED WITH INSTRUCTIONS. Opinion by Hetherington, J.; Buettner, P.J., concurs in result, and Hansen, J., concurs. 107,166 — Henry Bodden and Jane Bodden, Plaintiffs/Appellees, vs. Lisa Butts, d/b/a A Girl and A Gallon of Glaze, Defendant/Appellant, and Jim Butts, Defendant. Appeal from the District Court of Rogers County, Oklahoma. Honorable J. Dwayne Steidley, Judge. Defendant/Appellant Lisa Butts, d/b/a A Girl and a Gallon of Glaze appeals from judgment entered in favor of Plaintiffs/Appellees Henry Bodden and Jane Bodden in the Boddens’ breach of contract action against Painter. The trial court dismissed the Boddens’ claims against Painter’s husband, Defendant Jim Butts. The trial court did not err in finding Painter had agreed to satisfy the Boddens’ expectations. The trial court’s findings of fact are supported by competent evidence. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
107,431 — (Cons. w/107,432, 107,433, 107,434) Seneca Telephone Company, Plaintiff/Appellee, vs. Miami Tribe of Oklahoma, d/b/a White Loon Construction Company, Defendant/ Appellant. Appeal from the District Court of Ottawa County, Oklahoma. Honorable William E. Culver, Trial Judge. Appellant, Miami Tribe of Oklahoma (Tribe), d/b/a White Loon Construction Company, seeks review of the trial court’s judgments against it in favor of Appellee (Seneca) in Seneca’s four consolidated small claims cases asserting tort claims arising from Tribe’s repeated damage to Seneca’s underground telephone lines during excavation on property owned by the Eastern Shawnee Tribe of Oklahoma (Shawnees). Tribe contends the trial court lacked jurisdiction because the doctrine of tribal sovereign immunity pre-empted state court jurisdiction. We affirm, holding Oklahoma district courts have jurisdiction over tribes for violation of the Oklahoma Underground Facilities Damage Prevention Act because there is no tradition of tribal sovereign immunity in the area of telecommunications regulation and Congress has authorized states to regulate intrastate telecommunication facilities. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 108,235 — Emilio G. Gandara, Plaintiff/ Appellant, vs. Khoc Trust, John Morris, individually and as Trustee of the Khoc Trust, and Bliss Morris, individually and as Trustee of the Khoc Trust, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Noma D. Gurich, Judge. Plaintiff/Appellant Emilio G. Gandara, a 19 year-old college student, was invited by Defendants/Appellees John and Bliss Morris’ son, to swim at their home with some other guests on the evening of July 3, 2007. The young men later bought beer, and Gandara drank to excess. In the early morning hours of July 4, 2007, Gandara left the Morris residence on his motorcycle and was seriously injured in a one-vehicle accident. Gandara filed a lawsuit June 18, 2009 for damages, alleging Morris knew, or should have known, that Gandara was imbibing alcoholic beverages at their residence and drove away intoxicated. Morris filed a Motion for Summary Judgment which the trial court treated as a Motion to Dismiss. It granted the Motion to Dismiss and entered judgment in favor of Morris. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. Vol. 81 — No. 26 — 10/2/2010
(Division No. 2) Monday, September 13, 2010 107,450 — Michael Blanton, Plaintiff/Appellee, v. Action Graphix, LLC, Defendant/Appellant. Appeal from an order of the District Court of Oklahoma County, Hon. Carolyn R. Ricks, Trial Judge. In this negligence case, Defendant appeals the trial court’s order which granted in part and denied in part its motion for costs and attorney fees. The trial court awarded costs to Defendant but denied its request for an award of attorney fees. Defendant sought attorney fees pursuant to 12 O.S. Supp. 2007 § 2011.1 as the prevailing party against Plaintiff for filing an allegedly frivolous lawsuit against Defendant. Based on our review of the record and applicable law, we find the trial court did not err in awarding costs but denying attorney fees pursuant to § 2011.1 and, therefore, we affirm. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. 107,668 — Ernestine Butler, Plaintiff/Appellant, v. Creek Nation Casino, Defendant/ Appellee. Appeal from an order of the District Court of Tulsa County, Hon. Mary F. Fitzgerald, Trial Judge. Plaintiff appeals from the trial court’s order sustaining Defendant’s motion to dismiss. After review, this Court reverses the trial court’s order and remands this case to the trial court for further proceedings to permit Plaintiff to amend her Petition. Additionally, this Court denies Defendant’s “Motion to Dismiss or, in the Alternative, Stay Appeal,” filed August 2, 2010. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. Thursday, September 16, 2010 106,030 — Dana Bourland, Plaintiff/Appellant, v. Christopher Rumsey, Defendant/Appellee. Appeal from an order of the District Court of Oklahoma County, Hon. Noma Gurich, Trial Judge, awarding prejudgment interest. The issue on appeal is whether the trial court erred in calculating prejudgment interest from the date of a Supreme Court mandate issued in the case instead of the date of the commencement of the action. We conclude that it was an error of law to calculate prejudgment interest beginning on the date the mandate was issued rather than the date the lawsuit was filed. The trial court’s order is therefore reversed and remanded. On remand, the trial court is directed to calculate prejudgment interest from the filing
The Oklahoma Bar Journal
2167
of this lawsuit on October 24, 1995. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Monday, September 20, 2010 105,341 – State of Oklahoma, Plaintiff/Appellee, v. Bill Hunter, Defendant/Appellant. Appeal from an order of the District Court of Choctaw County, Hon. James R. Wolfe, Trial Judge. Bill Hunter appeals the trial court’s order denying his petition for the expungement of criminal records in two cases. The primary issue presented on appeal is whether the trial court erred in failing to hold a hearing pursuant to 22 O.S. Supp. 2002 § 19. Based on our review of the record and applicable law, we reverse the trial court’s order and, regarding Hunter’s petition to expunge the records in Case No. CRF-94-168, we remand this case to the trial court to follow the procedure, including a hearing, set forth in 22 O.S. Supp. 2002 § 19. Regarding Hunter’s petition to expunge the records in Case No. CRM-95-55, we remand to the trial court to allow Hunter the opportunity to show that all of his charges were dismissed on the merits so as to fit within 22 O.S. Supp. 2004 § 18(4). If Hunter establishes this prima facie showing of harm, then the procedure, including a hearing, set forth in § 19 is to be followed. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. Thursday, September 23, 2010 108,207 — First United Bank & Trust Co., a state banking corporation, Plaintiff/Appellee, v. Glenn S. Penny, Defendant/Appellant. Appeal from a judgment of the District Court of Bryan County, Hon. Mark R. Campbell, Trial Judge. A lender filed this action to collect amounts owed by a debtor on a promissory note. The debtor asserted the lender was negligent in failing to discharge its duty to liquidate the collateral – publically traded stock – in a commercially reasonable manner. 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. Pursuant to 12A O.S.2001 § 1-9-627(b), 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 disposition. There is no dispute that this is exactly what the lender did. Therefore, we find the trial court 2168
properly granted summary judgment in favor of the lender, the pledgee of the stock. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. 107,863 — Ruby Standingwater, Plaintiff/ Appellant, vs. United Supermarkets of Oklahoma, Inc., Defendant/Appellee. Appeal from the District Court of Beckham County, Oklahoma. Honorable Charles L. Goodwin, Judge. In this premises liability action, Appellant appeals from the trial court’s order granting summary judgment to Appellee. Appellant’s injury occurred in the middle of the afternoon when she entered the automatic sliding glass doors of Appellee’s grocery store. Appellant was following her son through the entryway doors when she fell on a blue rug over the threshold. As a result of the fall, Appellant sustained injuries to her left shoulder, right shoulder, neck and left knee. We affirm on the basis that the blue rug in the threshold of Appellee’s store was an open and obvious hazard; thus, Appellee had no duty to protect against or warn Appellant of any danger associated with the rug. AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. Tuesday, September 21, 2010 107,672 — Certain Underwriters at Lloyd’s, London, Garnishee/Appellant, vs. Cantera Concrete Company, LLC, an Oklahoma Limited Liability Company, Plaintiff/Appellee, vs. Buckley Construction, Inc., an Oklahoma corporation, and Kerr 3 Design Group, Inc., an Oklahoma corporation, Defendants. Appeal from the District Court of Logan County, Oklahoma. Honorable Donald L. Worthington, Judge. Garnishee/Appellant (Lloyd’s) appeals from the trial court’s grant of summary judgment in favor of Plaintiff/Appellee (Cantera) in this insurance garnishment action by Cantera. Lloyd’s first contends it is not bound by the underlying judgment against Kerr because Lloyd’s was neither a party nor privy to the suit and no evidence of Kerr’s liability was submitted to the trial court. It is undisputed that Lloyd’s had notice of Cantera’s lawsuit against Kerr, its insured, but chose not to participate in the proceedings. The material facts regarding Kerr’s liability to Cantera were conclusively established in the former proceeding. Thus, Lloyd’s attack upon the underlying judgment fails. The second argument raised by Lloyd’s focuses on the exclusionary language of the insurance policy. We hold Exclusion VIII does not apply to Cantera’s claims against
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
Kerr. There exists no genuine issue as to any material fact and Cantera is entitled to judgment as a matter of law. AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. (Division No. 3) Friday, September 24, 2010 106,776 — In the Matter of the Guardianship of Jake Hoffman, an Incapacitated Person, Earnest Hoffman, Contestant/Appellant, vs. Melba Hall, Respondent/Appellee. Appeal from the District Court of LeFlore County, Oklahoma. Honorable Brian Henderson, Judge. Contestant seeks review of the trial court’s orders denying his objection to the final account of Respondent in the Guardianship of Jake Hoffman, an incapacitated person, now deceased (Ward). In this appeal, Contestant asserts the trial court erred in approving the final account of Respondent, Ward’s guardian. Respondent was appointed as both Ward’s attorney in fact, and the guardian of Ward’s estate. There is no allegation or proof that Ward was mentally incompetent to manage his affairs. Respondent testified, and the trial court found, that Ward specifically directed Respondent to convey his home to Tom and Lloyd, and specifically directed Respondent to nominate Tom and Lloyd as Payable on Death beneficiaries of his CDs. If, in fact, these transfers violate some testamentary right of Contestant, the trial court properly directed resolution of that issue in the pending probate of Ward’s estate. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 107,533 — 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, Defendants/Appellees. Appeal from the District Court of Garfield County. Honorable Ronald G. Franklin, Judge. 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). OHCA sought dismissal on the basis of Institute’s failure to have summons issued and failure to file proof of service within ten 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. OHCA Vol. 81 — No. 26 — 10/2/2010
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. 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. The computation method in 12 O.S. §2006(A)(1) applies to the ten-day deadline in 75 O.S. §318(C). Institute complied with §318(C) in its timely filing and service of its Petition and the timely filing of its proof of service. We hold that under the Administrative Procedures Act, the trial court had jurisdiction over the appeal and it erred in granting OHCA’s motion to dismiss. REVERSED AND REMANDED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. (Division No. 4) Wednesday, September 15, 2010 107,811 — In the Matter of K.R., A.R., and K.R., alleged deprived children, Kelly Rush, Appellant, v. The State of Oklahoma, Appellee. Appeal from an order of the District Court of Pawnee County, Hon. Matthew D. Henry, Trial Judge. Kelly Marie Rush (Mother) appeals from a judgment, entered on a jury verdict, terminating her parental rights as to her three children, R.R., A.R. and K.R. On April 20, 2006, the Oklahoma Department of Human Services (DHS) took custody of all three children following a complaint of physical and sexual abuse by their stepfather. Mother was alleged to have failed to protect the children while knowing of the abuse. She also was involved with drugs and faced possible imprisonment at that time. On April 25, 2006, the State of Oklahoma filed a petition to adjudicate the children as deprived based upon these allegations. Subsequently, it was determined that R.R. is an Indian child and a member of the Creek Nation. The Creek Nation was notified and intervened. The State of Oklahoma filed a petition for termination of Mother’s parental rights. Mother appeals. In her appeal, Mother challenges jury instructions, sufficiency of the evidence, expert qualifications, and the trial court’s response to a question from the jury. Because R.R. is an Indian child, the stricter “beyond a reasonable doubt” proof standard contained in the ICWA became a factor. Thus, Mother asked the trial court to instruct the jury that all of the elements the State had to prove as to R.R. had to be proven “beyond a reasonable doubt. The trial court limited that standard to the issue of whether continued custody by Mother would
The Oklahoma Bar Journal
2169
result in serious emotional or physical harm to R.R. In so doing, the trial court did not use OUJI 5.8 or OUJI 5.23. As a result, the State’s burden for all of the children to establish termination of parental rights was the clear and convincing standard as to all state elements. The single federal element then had to be established by the beyond a reasonable doubt standard as to R.R. The trial court’s instruction clearly conflicts with the OUJI instruction as explained in the commentary. The trial court correctly instructed the jury regarding the dual burdens of proof applicable in the case of R.R., an Indian child. The finding that continued custody of the child by the parent is likely to result in serious emotional or physical harm is supported by testimony of a “qualified expert witness.” The record satisfies the ICWA requirement that the State satisfy the court that active efforts were made to reunite Mother with R.R. and that they were unsuccessful. There was no error based upon the trial court’s response to the jury’s inquiry. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Goodman, J., concurs, and Gabbard, P.J., concurs specially. Friday, September 24, 2010 107,722 — Marilyn Sue Goff, Plaintiff/Appellant, v. 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. Appeal from orders of the District Court of Canadian County, Hon. Edward C. Cunningham, Trial Judge, granting summary judgment to Salazar Roofing & Construction, Inc. (Salazar) and Robert Maupin’s (Maupin) (collectively “Appellees”) and awarding Appellees an attorney’s fee and costs. Goff filed suit against Appellees pursuant to the Americans with Disabilities Act (ADA). On appeal, Goff contends the trial court erred because the issue of whether she has a disability and whether Appellees discriminated against her based on this disability is a question of fact. We agree that a jury could conclude Goff has a physical impairment that meets the definition of a disabled person under the ADA, but she did not present sufficient evidence to establish that she suffered an adverse employment action because of her disability. The trial court’s order grant2170
ing Appellees summary judgment is therefore affirmed. The trial court did not, however, make the requisite findings entitling Appellees to fees and costs, and accordingly that order is reversed. AFFIRMED IN PART, REVERSED IN PART. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. 108,334 — David Boswell, individually, and as father and next of kin of T.B., a minor, Plaintiffs/Appellants, v. Edmond School District, a political subdivision, Defendant/Appellee, and Joe Guerra, individually, and as custodial parent of K.G., a minor, defendant. Appeal from the District Court of Oklahoma County, Hon. Twyla Mason Gray, Trial Judge, granting summary judgment to Appellee Edmond School District (School). T.B. suffered permanent injury when he was hit in the eye by an item thrown by another student, K.G. Plaintiff, after giving notice of the claim pursuant to the Oklahoma Governmental Tort Claims Act, (OGTCA) 51 O.S.2001 and Supp. 2009, §§ 151 through 200, sued. School answered and sought summary judgment. It claimed the damages were unforeseeable, were the result of the actions of a third-party over whom it exercised no control, were not caused by any of its employees, and that it was exempt from liability pursuant to the OGTCA. We agree. We find no set of facts which would support the conclusion School’s employees acted negligently or deprived School of its immunity pursuant to the OGTCA. The trial court’s grant of summary judgment is affirmed. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. Tuesday, September 28, 2010 107,385 — The Bank of New York Trust Company, N.A., as Successor to JP Morgan Chase Bank, N.A., as Trustee, Plaintiff/Appellee, vs. Bruce A. Hancock, Jr. a/k/a Bruce Archie Hancock, Jr., Defendant/Appellant. Appeal from Order of the District Court of Oklahoma County, Hon. Vicki Robertson, Trial Judge, denying Defendant’s motion to set aside an order confirming sale of Defendant’s property. Defendant fails to demonstrate in the appellate record that either of his allegations of error were properly raised or preserved in the trial court. The trial court’s decision is therefore affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, J.; Goodman, J., concurs, and Rapp, J., not participating.
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
ORDERS DENYING REHEARING (Division No. 1) Friday, September 24, 2010 108,163 — Douglas Friedman, Plaintiff/ Appellant, vs. Shelter Mutual Insurance Company, Defendant/Appellee. Defendant/Appellee’s Petition for Rehearing filed August 26, 2010 is DENIED. (Division No. 3) Monday, September 27, 2010 107,534 — Stephen Burnett, Plaintiff/Appellant, vs. John Middleton, Linda Jester, Robin Roof, Defendants/Appellees. Appellant’s Petition for Rehearing and Brief in Support, filed September 7, 2010, is DENIED. 107,875 — Jana D. Vorheis, Petitioner, vs. Nabisco, Inc., and/or Kraft Foods, Inc., (Own Risk #2158), and The Workers’ Compensation Court, Respondents. Appellant’s Application for Rehearing to the Court of Appeals, filed September 16, 2010, is DENIED. 107,151 — Alice M. Estes, Plaintiff/Appellant, vs. Kirk R. Boersma, Personal Representative of the Estate of Donaleen B. Jennings, Defendant/Appellee. Appellant’s Petition for Rehearing and Brief in Support Thereof, filed September 13, 2010, is DENIED.
You are not alone.
Men Helping Men October 28
The Best Plan for Me Time - 5:30-7 p.m. Location
The Oil Center – West Building 1st Floor Conference Room 2601 NW Expressway Oklahoma City, OK 73112
Daniel Rodriguez
Minerva House Drysdale Regents Chair in Law University of Texas School of Law
“Are State Constitutions Fundamentally Progressive Documents (and Why Should We Care)?”
THURSDAY, OCTOBER 21, 2010 5 p.m. Public Lecture Homsey Family Moot Courtroom Sarkeys Law Center N.W. 23rd and Kentucky For more information call: Okla. City, OK. 73106 (405) 208-5335 | http://law.okcu.edu/ Free and open to the public.
O KLAHOMA C ITY U NIVERSITY S CHOOL OF L AW
Vol. 81 — No. 26 — 10/2/2010
* 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.) For further information and to reserve your spot, please e-mail stephaniealton@cabainc.com.
L AWYERS HELPING L AWYERS ASSISTANCE PROGRAM
The Oklahoma Bar Journal
2171
BAR NEWS
2011 OBA Board of Governors Vacancies Nominating Petition Deadline was 5 p.m. Friday, Sept. 17, 2010
OFFICERS
Summary of Nominations Rules
President-Elect Current: Deborah Reheard, Eufaula Ms. Reheard automatically becomes OBA president Jan. 1, 2011 (One-year term: 2011) Nominee: Cathy Christensen, Oklahoma City
Vice President Current: Mack K. Martin, Oklahoma City (One-year term: 2011) Nominee: Reta M. Strubhar, Piedmont
BOARD OF GOVERNORS Supreme Court Judicial District Two Current: Jerry L. McCombs, Idabel Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, LeFlore, McCurtain, McIntosh, Marshall, Pittsburg, Pushmataha and Sequoyah Counties (Three-year term: 2011-2013) Nominee: Gerald C. Dennis, Antlers Supreme Court Judicial District Eight Current: Jim T. Stuart, Shawnee Coal, Hughes, Lincoln, Logan, Noble, Okfuskee, Payne, Pontotoc, Pottawatomie and Seminole Counties (Three-year term: 2011-2013) Nominee: Scott Pappas, Stillwater Nominee: Gregg W. Luther, Shawnee Supreme Court Judicial District Nine Current: W. Mark Hixson, Yukon Caddo, Canadian, Comanche, Cotton, Greer, Harmon, Jackson, Kiowa and Tillman Counties (Three-year term: 2011-2013) Nominee: O. Christopher Meyers, Lawton Member-At-Large Current: Jack L. Brown, Tulsa (Three-year term: 2011-2013) Nominee: Renée DeMoss, Tulsa Nominee: Kimberly K. Hays, Tulsa Nominee: Mack K. Martin, Oklahoma City 2172
Not less than 60 days prior to the Annual Meeting, 25 or more voting members of the OBA within the Supreme Court Judicial District from which the member of the Board of Governors is to be elected that year, shall file with the Executive Director, a signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Governors for and from such Judicial District, or one or more County Bar Associations within the Judicial District may file a nominating resolution nominating such a candidate. Not less than 60 days prior to the Annual Meeting, 50 or more voting members of the OBA from any or all Judicial Districts shall file with the Executive Director, a signed petition nominating a candidate to the office of Member-At-Large on the Board of Governors, or three or more County Bars may file appropriate resolutions nominating a candidate for this office. Not less than 60 days before the opening of the Annual Meeting, 50 or more voting members of the Association may file with the Executive Director a signed petition nominating a candidate for the office of President-Elect or Vice President or three or more County Bar Associations may file appropriate resolutions nominating a candidate for the office. If no one has filed for one of the vacancies, nominations to any of the above offices shall be received from the House of Delegates on a petition signed by not less than 30 delegates certified to and in attendance at the session at which the election is held. See Article II and Article III of OBA Bylaws for complete information regarding offices, positions, nominations and election procedure. Vacant positions will be filled at the OBA Annual Meeting Nov. 17-19. Terms of the present OBA officers and governors listed will terminate Dec. 31, 2010. Nomination and resolution forms can be found at www.okbar.org.
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
BAR NEWS
OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)
BOARD OF GOVERNORS Member-at-Large Mack K. Martin, Oklahoma City
Nominating Petitions have been filed nominating Mack K. Martin for election of Member-atLarge of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2011. A total of 127 signatures appear on the petitions.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA _____________________
NOTICE FOR REAPPOINTMENT OF INCUMBENT UNITED STATES MAGISTRATE JUDGES The current terms of the office of Magistrate Judge Doyle W. Argo, at Oklahoma City, Oklahoma, and Part-Time Magistrate Judge Shon T. Erwin at Lawton, Oklahoma, are due to expire April 16, 2011, and May 31, 2011, respectively. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of each magistrate judge to a new eight-year term and four-year term, respectively. The duties of a magistrate judge in this court include the following: Conduct a wide range of judicial proceedings to expedite the disposition of the civil and criminal caseload of the district court including (1) conduct of most preliminary proceedings in criminal cases; (2) trial and disposition of misdemeanor cases; (3) conduct of various case management, pretrial and evidentiary proceedings as delegated by the district judges of this court; (4) dispositions of consent social security proceedings; and (5) trial and disposition of civil cases upon consent of the litigants. Comments from members of the bar and the public are invited as to whether the incumbent magistrate judges should be recommended by the panel for reappointment by the court and should be directed to: Merit Magistrate Selection Panel c/o U.S. District Clerk of Court United States District Courthouse 200 N.W. 4th Street, Room 1210 Oklahoma City, Oklahoma 73102 You may also e-mail your comments to reappointment@okwd.uscourts.gov. Comments must be received by October 15, 2010.
Vol. 81 â&#x20AC;&#x201D; No. 26 â&#x20AC;&#x201D; 10/2/2010
The Oklahoma Bar Journal
2173
BOARD OF BAR EXAMINERS
New Attorneys Take Oath
B
oard of Bar Examiners member, Scott E. Williams of Oklahoma City, announces that 307 applicants who took the Oklahoma Bar Examination on July 27-28 were admitted to the Oklahoma Bar Association on Thursday, Sept. 23, 2010 or by proxy at a later date. Oklahoma Supreme Court Chief Justice James E. Edmondson administered the Oath of Attorney to the candidates at a swearing-in ceremony at the State Capitol. A total of 371 applicants took the examination. Other members of the Oklahoma Board of Bar Examiners are Tom A. Frailey, Chairperson, Chickasha; Peggy B. Cunningham, Vice-Chairperson, Yukon; Monte Brown, McAlester; Stephanie C. Jones, Clinton; Bryan Morris, Ada; Loretta F. Radford, Tulsa; Donna L. Smith, Miami and J. Ron Wright, Muskogee.
The new admittees are: Jasper Vaughndale Abbott
Elizabeth Wells Burden
Coy Dale Coffman, III
Anthony Seth Adams
Jared Michael Burden
Barbara Catherine Coke
Joshua Kyle Adams
Brian Alan Burget
Christina Cabell Cornish
James Phillip Albert
Meagen Elaine Williams Burrows
Steven Warren Creager
Steven Michael Albright Everette Chandler Altdoerffer James Thomas Angel Kara Nikole Bacon Virgil R. Barksdale Deidre Lee Neal Barnett Keith Allen Barrett Heather Lynn Basler Brittany Faye Baucom Merideth Roberts Bentley Kenneth Nollen Bethune Jonathan Zachary Birdsong
Clark Patrick Bushyhead John Edward Cadenhead Laura Ann Calvery Raymond Jason Campbell John Paul Cannon Daniel James Card Madison Blaine Carey Allyson Susanne Cave Alexander Chung-Yung Chan John Chandler Anthony Thomas Childers Andrew R. Chilson
Michael Cromwell Ross Alan Crutchfield Michalah Rae Davis Sarah Christine Davis Joshua Brian Deal Mary Megan Dean Laura Beth DeYoung Jon Michael Domstead Megan Courtney Dowd Lindsay Megan Dowell Cale Aaron Drumright Rickey Ray Dunkin
George Chiu
Jamie K. Dye
Donald Christian Bowers
John Robert Chubbuck
Jessica Rene Earley
Kristin D’Ann Box
Amanda Lynn Clark
Kyle Neil Eastwood
Rebecca Elaine Brink
Paul Michael Clark
Renee Sue Eberhardt
Anna Jenson Brooks
Clint Aaron Claypole
Joshua Allen Edwards
Michael Leon Brooks
Conor Patrick Cleary
Isaac Robertson Ellis
Hope Leslie Bryant
Joshua Alexander Cline
Jared Ray Ellis
Brian Nathaniel Buie
John Steven Coates
Jordan Barrett Ellis
Hunter Kendall Boling
2174
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
Seth Andrew Fellenstein
Jeffrey Brian Hubbard
Lauren Anne Lindsey
Jill Renee Fidelie
John William Hubbard
Harrison Cole Lujan
Isaac Curtis Finkbeiner
Sarah Renee Hummel
Carlos G. Maldonado
Alexander Keith Forbes
Jessica V. Hunt
Michael K. Manning
Heather Lamar Forsyth
Deborah Hoover Hupfer
Jason Edward Marshall
Kristin Foster
Allen Lemarr Hutson
Jared Wayne Mashaney
April Danielle Frago
Sara Kristel Jack
Jobby Chathanattu Mathew
Toby Lee Friesen
Mitchell Blaine Janik
Michael James Matison
Carollann Nichole Gamino
Julie Estelle Jansen
Erin Ann Maxwell
Mary Grace Gannaway
Amanda Lynn Janssen
Kelsey Marie May
Miguel Armando Garcia
Bradley Lloyd Johnson
Imelda Maynard
Alex Douglas Gardine
Eliza Beth Johnson
Andrew Lee McAlester
Grant Chase Garrard
Matthew Loren Johnson
Lori Elizabeth McConnell
Cody Neil Gayer Angel Nikolaev Gerdzhikov Dearra Godinez Jessica Elizabeth Golden Jason Michael Gresham Scott Charles Grier Edward Wesley Grimes Corey Brandon Gum Lisa Diane Hack Callie Louise Hall Misti Dawn Halverson Holly Marie Hammons Anna Christine Hanson Jennifer Lynn Hawk Alana Elizabeth Haynes House
Nicholas Adam Johnson Palmer Christian Johnson Thomas Ryan Johnson Alex Stuart Kaiser Lindsey Marie Kanaly Christy D. Keen Kendal Autumn Kelly Pamela Kennedy Suzanne Elise Kern Gregory Carl Ketner Jacob Todd Keyes Sabah Salman Khalaf Kenneth Lee Kincaid Jamie Nicole Kirk Travis James Kirk
Kimberly Kaye McCullough Jack Miles McFadden Katie Mariah McIntosh Sean Lawrence McLaughlin Daniel Wayne Melnyk Leo Joseph Mendus, II April Michelle Merrill Jillian Rae Mershon Andrea Marie Merten Andrew Loar Messer James Austin Mills Nathan Michael Milner Lyna Leigh Mitchell Robert Mitchener, III Angela Nicole Monroe Kara Elizabeth Moore
Daniel Charles Hays
Erin Nicole Kee Kirksey
Melissa S. Hedrick
Peter Joseph Knowles
Christian Diane Helm
Joanne Lafontant-Dooley
Trevor Ray Henson
Sylvia Ann Lanfair
Nicole Dawn Herron
Tyler Kenneth Larsen
Kimberly Farabough Mouledoux
Megan Rae Hickman
Margaret Josephine Laue
Gregory Ryan Mulkey
Amanda Rene Higgins
Sasha Lynn Legere
Amanda Renee Mullins
Robert Sewell Highsaw
Lauren Louise Lembo
Amanda Brooke Murphy
Megan Harrold Holden
John Clark Lennon
Todd Anthony Murray
Katherine Lee Holey
Matthew John Lese
Julie Elizabeth Myers
Krystina Elizabeth Hollarn
Robert Douglas Lewis
Sofia Rasik Nagda
William Justin Holliday
Thomas Winston Liles
Anne Welton Nagle
Vol. 81 â&#x20AC;&#x201D; No. 26 â&#x20AC;&#x201D; 10/2/2010
The Oklahoma Bar Journal
Katherine R. Morelli Brandi Lynne Morgan Scott Van Brunt Morgan
2175
Elise Schuller Neely
Joshua Davis Ritchey
Miriam LeeAnn Sweetin
Jennifer Lorraine Nelson
Mike Chase Ritter
John Thomas Synowicki
Sean Aaron Nelson
Natalia Riveros-Jacobsen
Aaron Jason Taber
Eric John Nicar
Margaret Elizabeth Robertson
Eric Lloyd Tabor
Brittani Nicole Nichols
Raegan Katena Rogers
David Matthew Taft
John Matthew Nolan
Leslie Ann Rountree
David Luther Teasdale
Paul Michael Northcutt
Nedra Georgeann Roye
Haylie Denae Treas
Brandi Nicole Nowakowski
Jordan Ky Russell
Robert Andrew Versace
George Caleb Overstreet
Matthew Christian Russell
Matthew David Von Tungeln
Amy Elizabeth Pahlka-Sellars
Miranda Rachelle Russell
Todd Michael Wagner
Christine Carol Pappas
Nikki Cyter Sack
Meredith Ann Walck
Aaron Charles Parks
Elizabeth Jane Sark
James Stuart Wallingford
Charles Madison Parrish, III
Ryan Todd Scharnell
Anthony Neal Walters
John Revell Parrish
Kirk Reuben Schauer
Mary Elizabeth Walters
Terra Rae Parten
Timothy William Schneidau
Leah Michelle Ward
Judith Louise Peck
Marie Elaine Schuble
Amanda Allene Warren
Aaron Francis Pembleton
James Gregory Brandon Scott
Jennifer Marie Warren
Kristen Pence Evans
Matthew Thomas Sheets
Kristen Warren
Odin David Perez
Grant Denver Sheperd
Brandon Michael Watson
Kathryn Nicole Perryman
Jacob Travis Sherman
Melissa Elizabeth Webb
Suzanne Reed Phillips
Nathan Kirk Shrewsbury
Lauren Elizabeth Weber
Chad Michael Pinkerton
John Daniel Sigman
Sarah Elizabeth Weber
Daniel Bruce Pond
Haley Lynn Simmoneau
Matthew Brady Welde
Andrew Robert Poole
Candice Lynnette Simmons
Angela Marie White
Zachary Allen Privott
Stephanie Anne Singer
Trenton Michael White
Kelly Carson Pruden
Timothy Jared Singleton
Vanessa Ann Purdom
Ashley Lauren Smart
Andrew John Charles Whiteside
David Andrew Ragsdale
Ryan Houston Smith
Meredith Andrea Rains Liles
Valerie Renee Smith
Bartlett Henry Ramsey
Joshua Michael Snavely
Molly Elizabeth Raynor
Arlette Srouji
Rebbecca Lyn Redelman
Savannah Lynn Stafford
John Kenneth Reid
Christopher Michael Staine
Natalie Krysten Reid
Sandra Jean Steffen
Shiloh Renes
Tearsa Paige Storms
Michael Ryan Rennie
Dallas Lynn Dale Strimple
Scott A. Reygers
Craig Douglas Sundstrom
Max Jackson Rhodes
Thomas Arlin Swafford, II
Michael Risley
Cullen Dean Sweeney
2176
The Oklahoma Bar Journal
Chanelle Monique Whittaker John Patrick Wiggins Denielle Nichole Williams Christopher Adam Wills Adam Leigh Wilson Emily Diane Wilson Bria Deawn Winston Jeffrey Julian Wolfenbarger Steven Chris Wyers Randall John Yates Omar Danny Zantout
Vol. 81 â&#x20AC;&#x201D; No. 26 â&#x20AC;&#x201D; 10/2/2010
BAR NEWS
OKLAHOMA BAR ASSOCIATION 2011 PROPOSED BUDGET NOTICE: Pursuant to Article VII, Section 1 of the Rules Creating and Controlling The Oklahoma Bar Association, Deborah A. Reheard President-Elect and Budget Committee Chairperson, has set a Public Hearing on the 2011 Oklahoma Bar Association budget for Thursday, October 14, 2010 at 4:00 p.m. at the Oklahoma Bar Center, 1901 N. Lincoln Boulevard, Oklahoma City.
Claim Form, addressed to the Executive Director of the OBA, P. O. Box 53036, Oklahoma City, OK 73152, and postmarked not later than Sixty (60) days after the approval of the Annual Budget by the Oklahoma Supreme Court or January 31st of each year, whichever shall first occur. Objection Procedure and form are available at www.okbar. org/members/budget/htm.
The purpose of the OBA is to engage in those activities enumerated in the Rules Creating and Controlling the Oklahoma Bar Association (“the Rules”) and the OBA Bylaws (“the Bylaws”). The expenditure of funds by the OBA is limited both as set forth in the Rules and Bylaws and in Keller v. State Bar of California, 496 U.S. 1 (1990). If any member feels that any actual or proposed expenditure is not within such purposes of, or limitations on the OBA, then such member may object thereto and seek a refund of a pro rata portion of his or her dues expended, plus interest, by filing a written objection with the Executive Director. Each objection must be made in writing on an OBA Dues
Upon receipt of a member’s written objection, the Executive Director shall promptly review such objection together with the allocation of dues monies spent on the challenged activity and, in consultation with the President, shall have the discretion to resolve the objection, including refunding a pro rata portion of the member’s dues, plus interest or schedule a hearing before the Budget Review Panel. Refund of a pro rata share of the member’s dues shall be for the convenience of the OBA, and shall not be construed as an admission that the challenged activity was or would not have been within the purposes of or limitations on the OBA.
Vol. 81 — No. 26 — 10/2/2010
The Oklahoma Bar Journal
2177
OKLAHOMA BAR ASSOCIATION 2011 PROPOSED BUDGET REVENUES
2011 PROPOSED BUDGET
ADMINISTRATIVE: Dues and Penalties Investment Income Annual Meeting Commissions and Royalties Mailing Lists and Labels Council on Judicial Complaints - Rent and Services Board of Bar Examiners - Rent and Services Legal Intern Fees Other
$ 4,026,450 50,000 70,000 30,000 12,000 10,000 15,000 7,000 17,000
OKLAHOMA BAR JOURNAL AND PUBLIC INFORMATION: Oklahoma Bar Journal: Advertising Sales Subscription Sales Other Miscellaneous
135,000 16,000 500
LAW RELATED EDUCATION: P.A.C.E. Institute Grant Other Grants
114,083
$ 4,237,450
CONTINUING LEGAL EDUCATION: Seminars and Materials
2010 BUDGET
$ 3,997,000 80,000 70,000 30,000 10,000 10,000 15,000 7,000 10,000
$ 4,229,000
151,500
135,000 16,000 500
151,500
114,083
12,000 124,700
136,700
1,140,000
GENERAL COUNSEL: Disciplinary Reinstatements Out of State Attorney Registration
15,000 254,000
MANDATORY CONTINUING LEGAL EDUCATION: Filing Penalties Provider fees
269,000
15,000 250,900
98,000 77,000
175,000
96,000 78,000
174,000
PRACTICE ASSISTANCE Consulting Fees and Material Sales Diversion Program
3,000 4,000
7,000
6,500 2,000
8,500
COMMITTEES AND SPECIAL PROJECTS: Mock Trial Program Fees Lawyers Helping Lawyers Insurance Committee Women-in -Law Conference Solo-Small Firm Conference Uniform Law Committee Law Student Division
48,000 29,000 53,000 50,000 50,000 -
230,000
53,000 27,000 55,000 50,000 50,000 1,500 1,000
237,500
TOTAL REVENUES
2178
1,090,000
$ 6,324,033
The Oklahoma Bar Journal
265,900
$ 6,293,100
Vol. 81 — No. 26 — 10/2/2010
OKLAHOMA BAR ASSOCIATION 2011 PROPOSED BUDGET EXPENDITURES
2011 PROPOSED BUDGET
ADMINISTRATIVE: Salaries and Benefits Annual Meeting Board of Governors and Officers Conferences and Organizational Development Legislative Monitoring General and Administrative: Utilities Insurance Data Processing Building and Equipment Maintenance Postage Copier Supplies Grounds Maintenance Audit Miscellaneous Overhead Allocated to Departments
OKLAHOMA BAR JOURNAL AND PUBLIC INFORMATION: Salaries and Benefits Oklahoma Bar Journal: Weekly Issue Printing Special Issue Printing Other Public Information Projects Newsclip Service Pamphlets Photography Supplies Miscellaneous Allocated Overhead
LAW RELATED EDUCATION: Salaries and Benefits P.A.C.E. Institute Program Other Grant Projects Training, Development and Travel Newsletter Miscellaneous Allocated Overhead
CONTINUING LEGAL EDUCATION: Salaries and Benefits Meeting Rooms and Food Service Seminar Materials Co-sponsorship fees Brochures and Bulk Mail Speakers Binders Audio/Visual Department Travel Supplies Miscellaneous Allocated Overhead
Vol. 81 — No. 26 — 10/2/2010
$ 942,332 140,000 138,000 18,000 8,000
100,000 46,500 64,800 74,000 44,000 48,000 36,000 7,000 16,500 71,200 (472,317)
2010 BUDGET
$ 948,427 130,000 141,000 18,000 10,000
$ 1,282,015
103,600 46,500 66,642 77,500 48,000 65,000 25,000 7,000 15,000 69,600 (468,602)
$ 1,302,667
229,125
219,902
275,000 160,000 3,000 0 1,600 10,000 500 1,000 10,750 84,913
775,888
295,000 155,000 3,000 0 1,600 10,000 500 1,000 10,750 85,863
782,615
118,037 0 116,583 25,500 10,000 9,600 49,699
329,419
116,885 12,000 104,950 27,000 10,000 7,600 45,585
324,020
399,238 150,000 60,000 40,000 90,000 100,000 18,000 12,000 7,000 3,500 29,900 124,623
1,034,261
403,090 150,000 60,000 40,000 75,000 100,000 23,000 12,000 7,000 3,500 29,400 133,988
1,036,978
The Oklahoma Bar Journal
2179
OKLAHOMA BAR ASSOCIATION 2011 PROPOSED BUDGET EXPENDITURES
2011 PROPOSED BUDGET
DISCIPLINARY: Salaries and Benefits Investigation and Prosecution PRC Travel and Meetings PRT Travel and Meetings Department Travel Library Supplies Miscellaneous Allocated Overhead
$ 990,631 50,500 8,500 7,500 6,250 7,000 8,000 6,750 113,967
MANDATORY CONTINUING LEGAL EDUCATION: Salaries and Benefits Printing & Compliance Reporting Supplies Commission Travel Miscellaneous Allocated Overhead
199,455 3,000 1,000 1,500 5,050 49,558
PRACTICE ASSISTANCE Salaries and Benefits OBA-NET Expense Dues & Subscriptions Library Computer Software Supplies Travel and Conferences Miscellaneous Allocated Overhead
258,536 6,000 2,600 2,450 1,700 1,150 19,300 3,650 49,557
COMMITTEES AND SPECIAL PROJECTS: Law Day Women-in -Law Conference Solo-Small Firm Conference Mock Trial Program FastCase Legal Research General Committees Lawyers Helping Lawyers Program Law Student Division Young Lawyers Division
43,000 60,000 50,000 45,000 85,000 60,250 48,000 0 85,000
2010 BUDGET
$ 958,373 48,500 7,500 7,500 5,700 6,000 8,000 7,250 112,300
$ 1,161,123
259,563
191,697 3,000 1,000 1,500 6,000 45,433
248,630
344,943
247,342 3,000 2,600 2,000 1,600 1,200 16,550 3,500 45,433
323,225
43,000 60,000 50,000 54,000 85,000 63,750 52,000 2,000 85,000
494,750
$ 1,199,098
476,250
CLIENT SECURITY FUND CONTRIBUTION
100,000
100,000
OKLAHOMA BAR CENTER RENOVATIONS
220,000
242,000
15,000
0
221,000
95,575
TOTAL EXPENDITURES
$ 6,257,437
$ 6,111,583
TOTAL REVENUES OVER (UNDER) EXPENDITURES
$ 66,596
$
2013 SOUTHERN CONFERENCE OF BAR PRESIDENTS FUND FURNITURE, FIXTURES AND OTHER CAPITAL IMPROVEMENTS
2180
The Oklahoma Bar Journal
181,516
Vol. 81 — No. 26 — 10/2/2010
CLASSIFIED ADS SERVICES
OFFICE SPACE
HANDWRITING IDENTIFICATION POLYGRAPH EXAMINATION
LUXURY OFFICE SPACE - THREE OFFICES: One executive corner suite with fireplace ($1,200/month) and two large offices ($850 each/month). All offices have crown molding and beautiful finishes. A fully furnished reception area, conference room and complete kitchen are included, as well as a receptionist, high-speed internet, fax, cable television and free parking. Completely secure. Prestigious location at the entrance of Esperanza located at 153rd and North May, one mile north of the Kilpatrick Turnpike and one mile east of the Hefner Parkway. Contact Gregg Renegar at (405) 285-8118.
Board Certified Diplomate — ABFE Life Fellow — ACFE
Court Qualified Former OSBI Agent FBI National Academy
Arthur D. Linville (405) 636-1522 INTERESTED IN PURCHASING PRODUCING & NON-PRODUCING Minerals; ORRI; O & G Interests. Please contact: Patrick Cowan, CPL, CSW Corporation, P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) 755-7200; Fax (405) 755-5555; E-mail: pcowan@cox.net. OF COUNSEL LEGAL RESOURCES — SINCE 1992 — Exclusive research & writing. Highest quality: trial and appellate, state and federal, admitted and practiced U.S. Supreme Court. Over 20 published opinions with numerous reversals on certiorari. MaryGaye LeBoeuf (405) 728-9925, marygaye@cox.net.
EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL Fitzgerald Economic and Business Consulting Economic Damages, Lost Profits, Analysis, Business/ Pension Valuations, Employment, Discrimination, Divorce, Wrongful Discharge, Vocational Assessment, Life Care Plans, Medical Records Review, Oil and Gas Law and Damages. National, Experience. Call Patrick Fitzgerald. (405) 919-2312. Appeals and litigation support — Expert research and writing by a veteran generalist who thrives on wide variety of projects, big or small. Cogent. Concise. Nancy K. Anderson, (405) 682-9554, nkanderson@hotmail.com. FREELANCE BOOK LAWYER — with highest rating and with 25+ years’ experience on both sides of the table is available for strategic planning, legal research and writing in all state and federal trial and appellate courts and administrative agencies. Admitted and practiced before the United States Supreme Court. Janice M. Dansby, 405-833-2813, jdansby@concentric.net.
DOWNTOWN OKC WITHIN WALKING DISTANCE TO COURTHOUSE. Parking, copier, fax, conference room, reception area, kitchen and phone system. Two offices available. Corner of Reno and Walker. James Dunn (405) 239-1000. SOUTH OKC OFFICE SPACE in a building complex surrounding a tranquil park-like setting in the Willowbrook Gardens Professional Building complex located on South Walker Avenue just south of I-240. No longterm lease required. Variety of space available from as little as one office up to as much as 5,000 square feet. Renovated in 2007. Carpeted floors, offices range from small/moderate to large, large reception area, built-ins, kitchen, and offices with a view! Call (405) 239-3800.
OFFICE SHARE MIDTOWN OKLAHOMA CITY OFFICE AVAILABLE for office sharing. We are a small well-established insurance defense law firm. We are seeking one to two additional attorneys with their own client base with whom to share office space and staff. All inquiries will be kept in strict confidence. Please send inquiries to “Box L,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
Want To Purchase Minerals AND OTHER OIL/GAS INTERESTS. Send details to: P.O. box 13557, Denver, CO 80201.
SHARED LUXURY OFFICE SPACE: Luxury all around...Granite, Wood, Slate Tile. Feel like you are working out of a beautiful home. Mix and match offices to suit your needs. We have an extra large upstairs space ($1,300), large corner office ($1,000), large office ($900), and 2 small offices ($695 each) as well as a reception area available. Included are an exquisite conference room, full kitchen and shared amenities available (phones, fax, cable and copier). Times are tough...we’re willing to work with you! Quail Pointe Suites – 13924 Quail Pointe Drive. Just West of May & Memorial off the Kilpatrick Turnpike. Please call Gina (405) 826-8188.
OFFICE SPACE
POSITIONS AVAILABLE
MIDWEST CITY LAW FIRM HAS SPACE FOR RENT. Perfect for new attorney or sole practitioner. Library, two conference rooms, high speed internet, receptionist, kitchen. Call Roger 732-6000.
LESTER, LOVING & DAVIES PC, an AV-rated law firm, seeks an associate with minimum 5-7 years litigation experience. Send resume to Lester, Loving & Davies PC, 1701 South Kelly Ave., Edmond, OK 73013.
LEGAL MALPRACTICE REFERRALS APPRECIATED: Michael Jordan Fairchild, Attorney at Large, 1519 S. Elwood Ave., Tulsa, OK 74119 (918) 584-7277.
Vol. 81 — No. 26 — 10/2/2010
The Oklahoma Bar Journal
2181
POSITIONS AVAILABLE
POSITIONS AVAILABLE
BUSY TULSA LAW FIRM SEEKS LITIGATION ATTORNEY with 2+ years experience to join our growing practice. Exceptional writing skills a must. Send resume, writing sample and salary requirements to lawoffice2315@yahoo.com.
GOVERNMENT AND COMMERCIAL CONTRACTING COMPANY seeks paralegal. Paralegal will work closely with the general counsel. Paralegal certificate required. Must possess 3-5 years of experience in legal research and writing. Experience in federal contracts a plus. Full-time position. Please submit a cover letter, resume, writing sample, and salary requirement to dwatson@buseygroup.com.
SECREST HILL BUTLER & SECREST, an AV-Rated insurance defense firm, is seeking an associate with 5+ years of experience. Emphasis on legal research, writing and litigation. Experience in employment law an asset. Salary to be commensurate with experience. All applications will remain confidential. Contact Joe Pickard at JPickard@secresthill.com or (918) 494-5905. TRIAL ATTORNEY — COMMERCIAL/BUSINESS — OKLAHOMA CITY: Private firm seeks 10+ years or more trial attorney; employment or securities litigation preferred, other business/commercial experience accepted, must have 1st chair jury trial and federal court experience. Partner/Dir. level and lucrative compensation plan offered. E-mail word resume, trial experience and salary requirements to: tamar@tmsrecruiting.com. SMALL LAW FIRM HAS A POSITION AVAILABLE for an attorney with 4-8 years of litigation experience. This position will involve specialized litigation in the field of eminent domain. Qualified candidate must have extensive litigation experience. To be considered, candidate must also possess experience in drafting motions, briefs and conducting all phases of pretrial discovery. Please send resume and salary requirements to “Box K,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. AV-RATED FIRM IN THE TULSA AREA is seeking an attorney with two years experience. Applicants should have good communication skills. Please send resumes and salary requirements to “Box O,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. EMPLOYMENT LAW AND CIVIL RIGHTS FIRM in Oklahoma City is seeking an associate attorney with litigation experience (3-5 years preferred) who is willing and capable of taking on an active caseload. Please e-mail salary requirements and resume to elaw@eddy-law.com or mail resume to Eddy Law Firm PC, 228 Robert S. Kerr Ave., Suite 220, Oklahoma City, OK 73102. IMMEDIATE OPENING, DISABILITY ATTORNEY: Well-established disability law firm in Northeast Oklahoma seeking attorney. Knowledge of disability law not required. Competitive compensation package. Please send resume to ssdisabilityattny@yahoo.com.
ASSISTANT ATTORNEY GENERAL, PAMFCU. Minimum 3 years prosecutorial experience. Candidate will represent the interests of the state of Oklahoma by prosecuting provider abuse, neglect, financial exploitation and Medicaid fraud. Candidate should process their own pleadings and correspondence using Word/WordPerfect. Experience with healthcare fraud or medical issues preferred. See website at www.oag.ok.gov for more details. Send resume and writing sample to W.A. Drew Edmondson, Attorney General, 313 N.E. 21st Street, Oklahoma City, OK 73105. Salary commensurate with experience in accordance with office pay scale. BUSY AV-RATED OKC/TULSA insurance defense firm seeks associate with 3 to 10 years experience for OKC office. Excellent opportunity for the right person. Personal injury/insurance defense/civil litigation experience helpful. Competitive salary and benefits. Send resume to Wilson, Cain & Acquaviva, 300 N.W. 13th Street, Suite 100, Oklahoma City, OK 73103. DOBBS & MIDDLETON, Staff Counsel for Farmers since 1993, seeks an associate with 2-5 years of litigation experience, including 1st chair trial experience. Candidates must have good written, verbal, people and computer skills. Experience in insurance defense an asset. The position requires some same day in-state travel. The ideal candidate will assume an immediate case load with increasing responsibilities. Farmers offers an excellent starting salary and benefits package and is an equal opportunity employer. All applicants must apply, in confidence, and submit a resume via www.farmers.com. Potential candidates may contact our firm to discuss the position and expectations.
FOR SALE QUALITY OFFICE FURNITURE FOR SALE: Beautiful all-wood reception center with built-in drawers (113” x 95” x 42”), leather swivel chairs, area rugs, file cabinets, etc. (405) 286-0251 ext. 25 or 26.
THE LAW FIRM OF LOVE, BEAL & NIXON, PC is accepting resumes for a paralegal position for the firm’s Northwest Oklahoma City practice. The practice is primarily creditor rights/collection related. Three to five years experience. Degree preferred. Competitive pay and benefits. Please send resumes and salary requirements to employment@lbnlegal.com.
2182
The Oklahoma Bar Journal
Vol. 81 — No. 26 — 10/2/2010
Vol. 81 — No. 26 — 10/2/2010
The Oklahoma Bar Journal
2183