http://www.okbar.org/obj/pdf/2010/OBJ2010Sept11 by Oklahoma Bar Association

Volume 81 u No. 24 u September 11, 2010

1938

The Oklahoma Bar Journal

Vol. 81 — No. 24 — 9/11/2010

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

events Calendar SEPTEMBER 2010 14

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

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Death Oral Argument; Wendell Arden Grissom – D-2008-595; 10 a.m.; Court of Criminal Appeals Courtroom OBA Military Task Force Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact: Deborah Reheard (918) 689-9281 OBA Law-related Education Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack G. Clark (405) 232-4271 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 Ruth Bader Ginsburg American Inn of Court; 5 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donald Lynn Babb (405) 235-1611 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 Unauthorized Practice of Law Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Deborah Reheard (918) 689-9281 OBA Mock Trial Committee Meeting; 5:30 p.m.; Oklahoma Bar Center, Oklahoma City with telconference; Contact: Contact: Judy Spencer (405) 755-1066 OBA Title Examination Standards Committee Meeting; Tulsa County Bar Center, Tulsa; Contact: Kraettli Epperson (405) 848-9100 OBA Member Services Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact: Keri Williams Foster (405) 607-0464 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 Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Sharisse O’Carroll (918) 584-4192 New Admittee Swearing In Ceremony; House of Representatives Chambers; Contact: Board of Bar Examiners (405) 416-7075 For more events go to www.okbar.org/calendar

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The Oklahoma Bar Journal

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Oklahoma Bar Association

table of

contents September 11, 2010 • Vol. 81 • No. 24

page 1939 Events Calendar 1942 Index to Court Opinions 1944 Supreme Court Opinions 1945 OBA Board of Governors Vacancies and Nominating Petitions

1947 Court of Criminal Appeals Opinions 1952 Annual Meeting 1956 Court of Civil Appeals Opinions 2041 Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court 2010 OK 60 Kim Holland, Insurance Commissioner, Petitioner, v. State of Oklahoma, ex rel., Oklahoma Health Care Authority; State of Oklahoma ex rel., State Treasurer; and State of Oklahoma, ex rel., Office of State Finance, Respondents. No. 108,519....................... 1944

Index To Opinions Of Court of Criminal Appeals 2010 OK CR 20 RICHARD ZOBON BAXTER, Appellant v. STATE OF OKLAHOMA, Appellee Case No. F-2009-687.......................................................................................................... 1947

Index To Opinions Of Court of Civil Appeals 2010 OK CIV APP 73 JACK MICHAEL LAMB, Petitioner/Appellant, v. STATE OF OKLAHOMA ex rel. PROTECTIVE HEALTH SERVICES OF THE STATE HEALTH DEPARTMENT, Respondent/Appellee. Case No. 106,827......................................................... 1956 2010 OK CIV APP 71 MTG GUARNIERI MANUFACTURING, INC., d/b/a HEARN MACHINE TOOL, Plaintiff/Appellant, vs. BRADLEY CLOUATRE, BRYAN JAY, DEAN GOFORTH, JASON CHERRY and SOONER PERFORATIONS AND MACHINE CO., L.L.C., Defendants/Appellees. Case No. 107,138........................................... 1961 2010 OK CIV APP 76 TERRY L. YOUNG, TRUSTEE OF THE YOUNG REVOCABLE LIVING TRUST, Plaintiff/Appellant, vs. LESLIE JOE CHAPPELL and JUDITH OTT CHAPPELL, Defendants/Appellees. Case No. 106,990.............................................................. 1970 2010 OK CIV APP 78 JAMES LAWSON, d/b/a AAA LAWSON-SIRMON BAIL BONDS, LLC, Plaintiff/Appellant, vs. BRUCE CURNUTT, IN HIS OFFICIAL CAPACITY AS SHERIFF OF LEFLORE COUNTY, OKLAHOMA, AND THE LEFLORE COUNTY SHERIFF’S OFFICE, BRUCE CURNUTT, SHERIFF, Defendants/Appellees. Case No. 107,578.................................................................................................................................................. 1972 2010 OK CIV APP 75 GERALD A. AMUNDSEN, II, and DAWN AMUNDSEN, Plaintiffs/ Appellees, vs. J. WRIGHT d/b/a J. WRIGHT HOMES, LLC, and JOHN L. WRIGHT, personally and individually, Defendants/Appellants, and NORTHWEST BUILDING SUPPLY, INC., WALLACE MECHANICAL, LLC, ROBERT S. WALLACE, personally and individually, and BRAD FLEENOR, personally and individually, Defendants. Case No. 106,924................................................................................................................................ 1973 2010 OK CIV APP 81 WALBERT D. BOELMAN, Petitioner, vs, CONTRACTOR SERVICES, INC. and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 107,107.......................................................................................................................................... 1978 2010 OK CIV APP 74 IN RE THE MARRIAGE OF: TANYA D. PARNELL, Petitioner/ Appellee, vs. JERRY M. PARNELL, Respondent/Appellant. Case No. 106,904...................... 1982 2010 OK CIV APP 80 Brittney Anne Sprowles, Petitioner/Interested Party, vs. Timothy Chad Thompson, Respondent/Appellant, and State of Oklahoma Department of Human Services — Child Support Services, Appellee/Interested Party. Case No. 107,017...................... 1986 2010 OK CIV APP 77 ANDREW J. ORCUTT, Petitioner/Appellant, vs. LLOYD RICHARDS PERSONNEL SERVICE &/OR COMPSOURCE OKLAHOMA and THE WORKERS COMPENSATION COURT, Respondents/Appellees. Case No. 107,047............ 1989 2010 OK CIV APP 79 CARL E. BEAVERS and MYRTLE B. BEAVERS, Plaintiffs/Appellees, vs. HAROLD E. BYERS, Defendant/Appellant. Case No. 106,752................................... 1992 1942

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2010 OK CIV APP 68 JEANNE FRENCH, Plaintiff/Appellant, vs. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS and OKLAHOMA MERIT PROTECTION COMMISSION, Defendants/Appellees. Case No. 106,210................ 1995 2010 OK CIV APP 72 LINDSEY K. SPRINGER, Plaintiff/Appellant, vs. RICHARDSON LAW FIRM, RICHARD D. MARRS, E. DIANE HINKLE, and KEVIN D. ADAMS, Defendants/Appellees. Case No. 106,227...................................................................................... 1999 2010 OK CIV APP 69 ANGELA HUDSON, Plaintiff/Appellant, vs. Jerry Fisher, an individual, and Richard Harris, d/b/a Harris Contractors, Defendants, MRI SPECIALISTS OF TULSA, Appellee. Case No. 106,901................................................................................ 2001 2010 OK CIV APP 65 HECTOR HERNANDEZ and TONYA GOESCH, Plaintiffs/Appellees, vs. ROY D. REED and DIANA L. REED, Defendants/Appellants, and COUNTRYWIDE HOME LOANS, INC., Third Party Defendant/Appellee. Case No. 106,514....... 2003 2010 OK CIV APP 67 KEITH MARGERISON and ROBERT McCULLOUGH, Plaintiffs/ Appellants, vs. CHARTER OAK HOMEOWNERS ASSOCIATION, Defendant/ Appellee. No. 107,843........................................................................................................................ 2007 2010 OK CIV APP 60 KEN SHEPHERD, Plaintiff/Appellant, v. KAWASAKI USA, Defendant/Appellee. Case No. 107,824.................................................................................................... 2011 2010 OK CIV APP 59 THE INCORPORATED CITY OF GROVE, DELAWARE COUNTY, OKLAHOMA, an Oklahoma municipal corporation, Plaintiff/Appellee, vs. VERNON BOYCE, individually, and BOYCE INVESTMENTS, L.L.C., d/b/a ALL AMERICAN OUTDOOR ADVERTISING COMPANY, Defendants/Appellants, and THE GRAND RIVER DAM AUTHORITY, Defendant/Appellee. Case No. 107,316....................... 2015 2010 OK CIV APP 85 WESTVILLE NURSING HOME, INC., and CCG&K, LLC, Plaintiffs/Appellants, vs. CITY OF WESTVILLE, OKLAHOMA, Defendant, and WESTVILLE UTILITY AUTHORITY, Appellee. Case No. 107,175....................................................... 2016 2010 OK CIV APP 87 MANUFACTURERS GUILD, INC., Plaintiff/Appellant, vs. THE CITY OF ENID, OKLAHOMA, Defendant/Appellee. Case No. 107,583................................. 2018 2010 OK CIV APP 82 TRACY TARRANT, Plaintiff/Appellee, vs. GUTHRIE FIRST CAPITAL BANK, an Oklahoma corporation, Defendant/Appellant, and TOM HOLDER and RANDY HOLDER, Defendants. Case No. 106,361; Consol. w/106,630............................ 2021 2010 OK CIV APP 83 DAVID S. FRIEDMAN, Plaintiff/Appellee, vs. STEVEN LEE CRAIG, an individual, d/b/a City Properties and d/b/a Craig Real Estate Services, Defendant, and FLORENCE LOUISE GAVIGNO, Defendant/Appellant. Case No. 106,614.................................................................................................................................................. 2024 2010 OK CIV APP 84 BRENDA FULTON, Plaintiff/Appellant, vs. PEOPLE LEASE CORPORATION and MARK FINDLEY, Defendants/Appellees, and ERVIN FINDLEY TRUCKING, INC., Defendant. Case No. 106,675......................................................................... 2027

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Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2010 OK 60

REIF, J., concurring in part; dissenting in part:

Kim Holland, Insurance Commissioner, Petitioner, v. State of Oklahoma, ex rel., Oklahoma Health Care Authority; State of Oklahoma ex rel., State Treasurer; and State of Oklahoma, ex rel., Office of State Finance, Respondents.

¶1 I concur to assume original jurisdiction, but dissent from holding H.B. 2437 unconstitutional. In my opinion, H.B. 2437 is a constitutionally permissible fee related to the provision and regulation of health insurance in the State of Oklahoma.

No. 108,519. August 24, 2010

OPALA, J., with whom HARGRAVE, J., joins, dissenting

ORDER ¶1 Petitioner’s application to assume original jurisdiction is granted. H.B. 2437 was enacted in violation of Okla. Const., Art. 5, Section 33, B. and D., and is not to be enforced. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 23RD DAY OF AUGUST, 2010. /s/ James E. Edmondson CHIEF JUSTICE ¶2 CONCUR: Edmondson, C.J., Taylor, V.C.J., Kauger, Watt, Winchester, and Colbert, JJ. ¶3 CONCUR IN PART; DISSENT IN PART: Reif, J. (by separate writing) ¶4 DISSENT: Opala, J., with whom Hargrave, J., joins. (by separate writing)

1944

I cannot join today’s rush to judgment. I would not assume original jurisdiction but relegate the petitioner to her district court remedy. Facial earmarks do not show conclusively that the levy imposed by the enactment sought to be condemned was in fact a true tax. More is needed. A district court test of the challenged statute’s constitutional validity would not be confined to its facial appearance. It might readily disclose from nonfacial proof the attacked enactment’s status as a pure revenue measure subject to judicial condemnation. Were I writing today for the court, I would decline to assume original jurisdiction without prejudice to a district court contest.

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BAR NEWS

2011 OBA Board of Governors Vacancies Nominating Petition Deadline: 5 p.m. Friday, Sept. 17, 2010

OFFICERS

Summary of Nominations Rules

President-Elect Current: Deborah Reheard, Eufaula Ms. Reheard automatically becomes OBA president Jan. 1, 2011 (One-year term: 2011) Nominee: Cathy Christensen, Oklahoma City

Vice President Current: Mack K. Martin, Oklahoma City (One-year term: 2011) Nominee: Reta M. Strubhar, Piedmont

BOARD OF GOVERNORS Supreme Court Judicial District Two Current: Jerry L. McCombs, Idabel Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, LeFlore, McCurtain, McIntosh, Marshall, Pittsburg, Pushmataha and Sequoyah Counties (Three-year term: 2011-2013) Nominee: 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

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Not less than 60 days prior to the Annual Meeting, 25 or more voting members of the OBA within the Supreme Court Judicial District from which the member of the Board of Governors is to be elected that year, shall file with the Executive Director, a signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Governors for and from such Judicial District, or one or more County Bar Associations within the Judicial District may file a nominating resolution nominating such a candidate. Not less than 60 days prior to the Annual Meeting, 50 or more voting members of the OBA from any or all Judicial Districts shall file with the Executive Director, a signed petition nominating a candidate to the office of Member-At-Large on the Board of Governors, or three or more County Bars may file appropriate resolutions nominating a candidate for this office. Not less than 60 days before the opening of the Annual Meeting, 50 or more voting members of the Association may file with the Executive Director a signed petition nominating a candidate for the office of President-Elect or Vice President or three or more County Bar Associations may file appropriate resolutions nominating a candidate for the office. If no one has filed for one of the vacancies, nominations to any of the above offices shall be received from the House of Delegates on a petition signed by not less than 30 delegates certified to and in attendance at the session at which the election is held. See Article II and Article III of OBA Bylaws for complete information regarding offices, positions, nominations and election procedure. Vacant positions will be filled at the OBA Annual Meeting Nov. 17-19. Terms of the present OBA officers and governors listed will terminate Dec. 31, 2010. Nomination and resolution forms can be found at www.okbar.org.

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BAR NEWS

OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)

BOARD OF GOVERNORS

Member-at-Large

Supreme Court Judicial District No. 8 Scott Pappas, Stillwater Nominating Petitions have been filed nominating Scott Pappas for election of Supreme Court Judicial District No. 8 of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2011.

Renée DeMoss, Tulsa Nominating Petitions have been filed nominating Renée DeMoss for election of Member-at-Large of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2011. A total of 279 signatures appear on the petitions.

Nominating Petitions have been received for the following counties: Lincoln and Payne A total of 89 signatures appear on the petitions Gregg W. Luther, Shawnee Nominating Petitions have been filed nominating Gregg W. Luther for election of Supreme Court Judicial District No. 8 of the Oklahoma Bar Association Board of Governors for a threeyear term beginning January 1, 2011. A total of 25 signatures appear on the petitions. Supreme Court Judicial District No. 9 O. Christopher Meyers, Lawton Nominating Petitions have been filed nominating O. Christopher Meyers for election of Supreme Court Judicial District No. 9 of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2011. A total of 31 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: Comanche and Cotton

Nominating Petitions have been filed nominating Kimberly K. Hays for election of Memberat-Large of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2011. A total of 253 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: Creek and Washington

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Kimberly K. Hays, Tulsa

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Court of Criminal Appeals Opinions 2010 OK CR 20 RICHARD ZOBON BAXTER, Appellant v. STATE OF OKLAHOMA, Appellee Case No. F-2009-687. August 23, 2010 SUMMARY OPINION LEWIS, JUDGE: ¶1 Richard Zobon Baxter was tried by jury and convicted of Count I, Trafficking (Ecstasy) in violation of 63 O.S.Supp.2005, § 2-415(C); Count II, Trafficking (Cocaine) in violation of 63 O.S.Supp.2005, § 2-415(C); Count IV, Possession of Controlled Dangerous Substance (Cocaine) Without a Tax Stamp in violation of 68 O.S.2001, § 450.1; Count V, Possession of a Controlled Dangerous Drug With Intent to Distribute in violation of 63 O.S.Supp.2005, § 2-401(B)(2); Count VI, Possession of Drug Paraphernalia in violation of 63 O.S.Supp.2004, § 2-405; Count VII, Driving While Suspended in violation of 47 O.S.Supp.2004, § 6-603; Count VIII, Failure to Pay Taxes in violation of 47 O.S.Supp.2007, § 1151(A)(5); and Count IX, Failure to Carry Proof of Insurance in violation of 47 O.S. Supp.2006, § 7-606, all after former conviction of a felony, in the District Court of Tulsa County, Case No. CF-2007-4439.1 In accordance with the jury’s recommendation the Honorable Tom C. Gillert sentenced Baxter to sixty (60) years imprisonment and a fine of $60,000 (Count I); forty (40) years imprisonment and a fine of $25,000 (Count II); five (5) years imprisonment and a fine of $1000 (Count IV); fifteen (15) years imprisonment and a $15,000 fine (Count V); one (1) year in county jail (Count VI); a fine of $500 (Count VII); a fine of $250 (Count VIII); and seven (7) days in jail and a fine of $250 (Count IX). The sentences in Counts I and II run concurrently with each other, while the sentences in Counts V, VI and IX run concurrently with one another and consecutively to the other counts. Baxter appeals from these convictions and sentences. ¶2 Baxter raises one proposition of error in support of his appeal: I. The trial judge violated Baxter’s Fourth Amendment right to be free of unreasonable searches when he admitted evidence Vol. 81 — No. 24 — 9/11/2010

found during the search of the passenger compartment of Baxter’s vehicle where Baxter had been arrested for traffic violations and was handcuffed and secured in a police officer’s patrol vehicle. ¶3 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that relief is required on Counts I, II, IV, V and VI. ¶4 Baxter claims that the trial court erred in denying his motion to suppress the evidence obtained from the search of his car. Police conducted a warrantless search of Baxter’s car after he was arrested, handcuffed, removed from the vehicle and placed in a patrol car. The only justification in the record for the search is that it was incident to Baxter’s arrest. This case falls squarely within the recent United States Supreme Court prohibition against this type of search. In Arizona v. Gant, _ U.S. _, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the Court reviewed a search incident to arrest after a traffic stop was conducted, and determined the search violated the Fourth Amendment. Discussing previous Supreme Court case law, and its interpretation by state and federal lower courts, the Court noted that in some instances courts upheld any vehicle search incident to an arrest even when the passenger compartment was not within the reach of the arrested person at the time of the search. The Court concluded that this interpretation allows an impermissibly broad scope for vehicle searches. The Court held: [P]olice [are authorized] to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Fn4. Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains. Cf. 3 W. LaFave, Search and Seizure § 7.1(c), p. 525 (4th ed.2004) (hereinafter LaFave) (noting that the availability of protective measures “ensur[es] the nonexistence of circumstanc-

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es in which the arrestee’s ‘control’ of the car is in doubt”). But in such a case a search incident to arrest is reasonable under the Fourth Amendment. Gant, 129 S.Ct. at 1719. ¶5 The law does not support an argument that the search was justified because officers believed they might find relevant evidence connected to the arrest. Baxter was stopped and arrested for traffic violations. Nothing in the record suggests that officers had any basis to suspect any other crime was being committed at the time they began the search. The Supreme Court rejected such an argument under similar circumstances in Gant: [W]e also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” [citation omitted] In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. Gant, 129 S.Ct. at 1719. [Emphasis added]. ¶6 The State has the burden to show this warrantless search falls within a specific exception to the Fourth Amendment warrant requirement. Burton v. State, 2009 OK CR 10, ¶ 13, 204 P.3d 772, 776. Particularly in light of Gant, the State fails to meet this burden. The State offers several arguments to justify admission of the evidence. ¶7 The State suggests that the arrest was the result of circumstances which developed after Baxter’s arrest and passenger Cooke’s removal from the car, before the search began. The State first argues that the marijuana was in plain view before the search began, justifying the search. The record does not support this claim. There was no evidence suggesting the marijuana was in plain view presented at any proceeding. Officer Margason testified at preliminary hearing, the hearing on the motion to suppress, and at trial that a bag of marijuana was in the console when he searched the car and that he found the baggie after he began the search. He testified at trial that he believed there was a lid on the console, and said, “I can’t recall if it was open or shut, but my recollection is it was not shut.” None of the officers present before and during the search testified either 1948

that they saw the marijuana or had the opportunity to see it before the search began. The plain view exception does not apply. ¶8 The State argues that, when Officer Oelke asked passenger Cooke for her identification, he saw a large amount of cash ($1208) loose in her purse in a manner consistent with how drug dealers sometimes keep money, she had trouble speaking and was breathing rapidly, her hands were shaking and she was extremely nervous. The State suggests this evidence, along with the marijuana in plain view, provided probable cause to believe that illegal drugs were in the car and justified the search. As we discuss above, the record does not support the claim that the marijuana was in plain view. We are left with Cooke’s nervousness and the cash. The record does not support any conclusion that the search was in any way predicated on Cooke’s belongings or behavior. Oelke testified at the hearing on the motion to suppress and at trial that he did not make contact with Cooke or speak to her until after Baxter was under arrest. Oelke testified at trial that he knew Margason planned to search the vehicle incident to arrest when he spoke to Cooke, and he asked her to step out of the car because police do not conduct a search with someone in the car. Margason testified that he planned to search the car while Oelke was talking to Cooke and that he began the search after Oelke asked Cooke to step out of the car. The record shows that the officers planned to search the car before Oelke made his observations about Cooke. ¶9 The State suggests that the search falls under the good faith exception. It does not. The good faith exception applies only to searches conducted with a warrant. U.S. v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). This was a warrantless search. The State also relies on Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), to argue that the exclusionary rule should not apply here. Hudson, following Leon, discusses exclusion of evidence gained through an unlawful search conducted pursuant to a warrant. Hudson, 547 U.S. at 593, 126 S.Ct. at 2165. Hudson specifically notes there is a difference between unlawful searches pursuant to a warrant and “the fruits of unlawful warrantless searches.” Hudson, id. When considering whether illegally obtained evidence should be excluded, the question is whether the illegal evidence was “come at by exploitation of that

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illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Here, the evidence against Baxter was solely the result of the unlawful search, without any intervening occurrence which might attenuate the connection between the unlawful search and the evidence and thus dissipate the taint. Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417. ¶10 The State apparently uses “good faith” not as a term of art, but as a measure of fairness. The State argues that the police relied on the law previous to Gant, which would have allowed a vehicle search under these circumstances,2 and suggests that it is unfair to apply the current law in this case. The United States Supreme Court explicitly rejected this argument in Gant. The fact that the law enforcement community may view the State’s version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement “entitlement” to its persistence. Gant, 129 S.Ct. at 1723. ¶11 Gant was decided while this case was on appeal. The State claims without citation that this Court should not apply Gant retroactively, arguing that since the officers relied in good faith on the previous law there would be no deterrent value. This is not the standard for determining whether a ruling in a case should be retroactive. Newly declared rules of constitutional criminal procedure are applied to criminal cases pending on direct appeal. Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S.Ct. 708, 713, 93 L.Ed.2d 649 (1987). This is true even where the new rule is a clear break with past case law. Griffith, 479 U.S. at 328, 107 S.Ct. at 716. This Court has held a case adopts a new rule “when it breaks new ground or imposes a new obligation on the States or Federal Government, or, to put it differently, when the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Ferrell v. State, 1995 OK CR 54, ¶ 5, 902 P.2d 1113, 1114, adopting Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334, 349 (1989) Vol. 81 — No. 24 — 9/11/2010

(new constitutional rule not applied retroactively on collateral review). Gant is a newly declared rule of constitutional criminal procedure, and should be applied in this case. ¶12 The State argues that application of the law here would have no deterrent effect. Given the requirement, discussed above, that Gant must be applied to cases pending on direct appeal when it was decided, this argument is misplaced. In addtion, applying Gant will have a deterrent effect. It will confirm to law enforcement officers in Oklahoma the change in the law and serve as an example and an explanation of the reason law enforcement agencies must adapt their vehicle search practice to conform to the law in Gant. ¶13 The State finally claims the material would have been inevitably discovered during an inventory search when the car was impounded.3 Illegally obtained evidence may be admissible if the prosecution can establish by a preponderance of the evidence “that the information ultimately or inevitably would have been discovered by lawful means….” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984). The State asserts without citation that Baxter’s car was subject to impoundment, and argues that if an impoundment is lawful, a subsequent inventory search is lawful and any evidence seized therein is admissible. Horn v. State, 1983 OK CR 152, ¶ 6, 671 P.2d 1163, 1164; Lee v. State, 1981 OK CR 59, ¶ 2, 628 P.2d 1172, 1172; see also Skelly v. State, 1994 OK CR 55, ¶¶ 16-17, 880 P.2d 401, 406-07 (lawful impoundment requires compliance with municipal ordinance governing impoundment on private property where vehicle was observed on public road but pulled into private parking lot for traffic stop). ¶14 The record does not support the State’s claim that Baxter’s Cadillac was subject to impoundment. In Horn, evidence showed officers lawfully impounded a vehicle pursuant to a valid municipal ordinance after the vehicle was stopped on a public street in the early morning hours. Horn, 1983 OK CR 152, ¶ 5, 671 P.2d at 1164-65. During the stop and search, Baxter’s car was parked on private property, in a designated parking place. This Court has held that an impound is unlawful in the absence of evidence that the stopped vehicle itself is either connected to a crime or poses a traffic hazard, or that the impoundment is pursuant to proper police department policy. Lee, 1981 OK CR 59, ¶¶ 4-5, 628 P.2d at 1173. We found

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no justification for impoundment and a vehicle inventory search where the driver was arrested for a traffic violation and the car was legally parked on private property. Kelly v. State, 1980 OK CR 7, ¶ 5, 7, 607 P.2d 706, 707-08. Here, the initial arrest and the offenses for which Margason stated he planned to impound the car were all traffic offenses. No case law supports the argument that a traffic offense in and of itself connects the vehicle which is the subject of the stop to the crime such that it requires impound. No evidence at trial supports any claim that the Cadillac was a traffic hazard. No evidence was introduced regarding either an applicable municipal ordinance or a police department policy on impoundment and subsequent inventory. In the absence of any evidence suggesting that Baxter’s car could be impounded or searched subsequent to that impoundment, there is no basis in the record to support a conclusion that the evidence in this case would have been inevitably discovered.

Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

¶15 Police conducted an unlawful warrantless search of Baxter’s car after a traffic stop under Gant. Gant applies to this case. There is no other independent justification for the search. Baxter’s convictions in Counts I, II, IV, V and VI are reversed and remanded for proceedings consistent with this opinion.

W.A. Drew Edmondson, Attorney General of Oklahoma, Donald D. Self, Assistant Attorney General, 313 N.E. 21st Street, Oklahoma City, Oklahoma 73105, Attorneys for Respondent

Decision ¶16 The Judgments and Sentences of the District Court in Counts I, II, IV, V and VI are REVERSED and REMANDED for further proceedings consistent with this opinion. The Judgments and Sentences of the District Court in Counts VII, VIII and IX are AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma

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IN THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE TOM C. GILLERT, DISTRICT JUDGE ATTORNEYS AT TRIAL Richard Clark, Assistant Public Defender, 423 South Boulder, Suite 300, Tulsa, Oklahoma 74103, Attorney for Defendant Jason Rush, Tammy Westcott, Assistant District Attorneys, Tulsa County Courthouse, 500 South Denver, Tulsa, Oklahoma 74103, Attorneys for State ATTORNEYS ON APPEAL Curtis M. Allen, Assistant Public Defender, 423 South Boulder, Suite 300, Tulsa, Oklahoma 74103, Attorney for Petitioner

OPINION BY: LEWIS, J. C. JOHNSON, P.J.: CONCUR A. JOHNSON, V.P.J.: CONCUR LUMPKIN, J.: CONCUR IN RESULTS 1. Count III was dismissed before trial. 2. This includes New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and Gomez v. State, 2007 OK CR 33, 168 P.3d 1139. 3. The State explicitly repudiated this theory below, stating in the Rule 6 hearing that this was not an impound search. The district judge at that hearing noted that “if we were focusing on simply the impound procedure and the inventory search under that procedure, then the State would fail.”

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You are not alone.

Men Helping Men

Women Helping Women

September 30

September 23

Finding Your Balance

The Best Plan for Me

The Oil Center – West Building

Time - 5:30-7 p.m. Location

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

10th Floor Conference Room 2601 NW Expressway Oklahoma City, OK 73112

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

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

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

L AW YERS HELPING L AW YERS A SSISTANCE PROGR AM Vol. 81 — No. 24 — 9/11/2010

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OBA/CLE Annual Meeting 2010 Crowne Plaza Hotel, Tulsa

November 17, 2010

DAY ONE

Family Law

Criminal Law

How Good Lawyers Survive Bad Times

Nuts and Bolts

Promenade A

Promenade B

Promenade C

Promenade D

WEDNESDAY Registration 8 - 9 a.m.

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. Robinson

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

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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. 24 — 9/11/2010

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

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Panelists: Michael Huff, Tulsa Police Department, Homicide Division, Tulsa Douglas E. Drummond, Tulsa County First Assistant District Attorney, Tulsa Stephen Kunzweiler, Assistant District Attorney, Tulsa Jennifer Thompson-Cannino Ronald Cotton Gary Wells, Ph.D.

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2010 Registration Form

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 Please 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 q Incarceration of Women in Oklahoma

THREE WAYS TO REGISTER

ent n MAIL this registration form with paym

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.

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PAYMENT OPTIONS:

q Check enclosed: Payable to Okla. Bar Association Credit card: q VISA q Mastercard q Discover q American Express Card #______________________________________________________________ Exp. Date____________________________________________________________ Authorized Signature ____________________________________________________________________

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Fees do not include hotel accommodations. For reservations contact: Crowne Plaza Tulsa Hotel at (800) 227-6963. Call by Oct. 26 and mention hotel code: Oklahoma Bar Association 2010 Convention for a special room rate of $105 per night. For hospitality suites, contact Craig Combs at (405) 416-7040 or e-mail: craigc@okbar.org. The Oklahoma Bar Journal

Vol. 81 — No. 24 — 9/11/2010

House of Delegates Thank you to the County Bar Presidents of: Adair, Alfalfa, Beckham, Blaine, Bryan, Canadian, Carter, Cherokee, Choctaw, Cleveland**, Coal, Comanche, Cotton, Creek, Custer, Dewey, Ellis, Garfield, Garvin, Grant, Greer, Harper, Jackson, Jefferson, Johnston, Kingfisher, Kiowa, Logan, Love, Major, Marshall, Mayes, McClain, McCurtain, McIntosh, Murray, Muskogee, Okfuskee, Oklahoma, Osage, Ottawa**, Pittsburg, Pontotoc, Pottawatomie, Pushmataha, Rogers, Roger Mills, Seminole, Texas, Tulsa, 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 Beaver Caddo Cimarron Craig Delaware Grady Harmon Haskell Hughes Kay Latimer

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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.”

LeFlore Lincoln Noble Nowata Okmulgee Pawnee Payne Sequoyah Stephens Tillman Wagoner

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Court of Civil Appeals Opinions 2010 OK CIV APP 73 JACK MICHAEL LAMB, Petitioner/ Appellant, v. STATE OF OKLAHOMA ex rel. PROTECTIVE HEALTH SERVICES OF THE STATE HEALTH DEPARTMENT, Respondent/Appellee. Case No. 106,827. June 25, 2010 APPEAL FROM THE DISTRICT COURT OF PONTOTOC COUNTY, OKLAHOMA HONORABLE GEORGE W. BUTNER, TRIAL JUDGE REVERSED AND REMANDED George Zellmer, McAlester, Oklahoma, for Petitioner/Appellant, Charles L. Broadway, Office of General Counsel, State Department of Health, Oklahoma City, Oklahoma, for Respondent/Appellee. CAROL M. HANSEN, JUDGE: ¶1 Appellant, Jack Michael Lamb (Lamb), appeals from an order of the trial court which affirmed the determination of Appellee, State Department of Health (Department), to record in Department’s “Nurse Aide Registry” (the Registry) that Lamb committed mistreatment and abuse of a long-term care facility resident. We hold the trial court erred in failing to remand the case to Department for taking and consideration of further evidence, and reverse. ¶2 At the time of the alleged mistreatment and abuse, Lamb was the Chief Executive Officer of the long-term care residential facility, McCall’s Chapel School (McCall’s), in Ada, Oklahoma. However, this action is limited to Lamb’s status as a certified nurse aide and whether an entry of resident mistreatment and abuse should be added to Lamb’s information in the Registry pursuant to 42 U.S.C. §§1396r(e)(2) and 1396r(g)(1)(C); 42 C.F.R. §§483.156 and 488.335; and 63 O.S.Supp.2004 §1-1951. ¶3 The foregoing sections, enacted as part of the federal Medicare and Medicaid mandate to states, provide, intra alia, for [1] establishment of a nurse aide registry, [2] procedures for investigation of alleged abuse, neglect or mis1956

appropriation of property of residents in various types of long term care facilities, [3] documenting findings in the Registry after notice and hearing, and [4] prohibiting employment by a facility of individuals who are the subject of Registry abuse, neglect or misappropriation entries. ¶4 The allegations here are that Lamb sexually abused McCall’s resident A. R., who was described in the report of investigation conducted by the Medicaid Fraud Control Unit, Office of the Attorney General, as suffering from, among other things, “moderate mental retardation, Down’s Syndrome.” That report of investigation further reflects the following. The abuse was alleged to have taken place on December 14, 2003. The case was opened in the Attorney General’s office on December 17, 2003, on a referral from the Human Resources Director of McCall’s. Two Department Incident Reports, dated December 15 and 22, 2003, which were admitted separately from the Attorney’s General’s report, state someone from the Attorney General’s office had already visited McCall’s by the date of the second and final report. ¶5 The Attorney General’s report additionally shows the investigation, which served as the basis for Department’s administrative action, was conducted on May 3, 2004, and the report was prepared on that same date. The report further indicates Lamb had resigned from McCall’s and moved out of state. Lamb had retained legal counsel, and counsel declined to allow Lamb to be interviewed by the investigator. Finally, the report reveals the investigation was closed on May 12, 2004, after the cognizant Assistant Attorney General “declined to file charges saying that the court proceedings would possibly cause more harm to [A. R.].” ¶6 The record reflects the Attorney General’s May 2004 report of investigation was transmitted by the Attorney General’s office to Department by facsimile on November 5, 2004. Department filed its intra-departmental Petition to begin an “individual administrative proceeding” against Lamb on June 24, 2005. The Petition states Lamb was notified of the allegations against him by Department’s letter

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mailed on June 2, 2005, and that on June 22, 2005, Lamb requested a “hearing to contest the allegations.” The matter was set for hearing on August 23, 2005. ¶7 However, Lamb, also on June 22, 2005, sent Department a Motion to Dismiss and Objection to Jurisdiction and Motion to Stay Proceedings. In this motion, Lamb stated he was notified of the abuse allegations by Department’s letter of May 19, 2005. Lamb asserted Department was required by 42 C.F.R. §488.335(c)(2)1 to notify him of the investigation against him within ten working days, but that Department’s notification came more than a year after the investigation had been completed. Lamb further asserted Department was therefore “out of time to proceed, and as such, is without jurisdiction to take this action.” He asked Department’s Petition be dismissed. ¶8 On August 19, 2005, Lamb filed a Petition for Writ of Prohibition in the district court asking the court to prohibit Department from proceeding until the issue of jurisdiction was settled. A copy of Lamb’s Petition for Writ of Prohibition was filed with Department on August 22, 2005, along with a Motion for Continuance asking the August 23rd hearing be continued.2 ¶9 In its objection to Lamb’s motion to dismiss its intra-departmental Petition, Department submitted its investigation was finished on May 15, 2005, and that it provided notice to Lamb on May 19, 2005, “or within ten (10) working days of the completion of the investigation.” (Emphasis added). Thus, Department argued, it had complied with the ten day dictate of §488.335(c)(2). Department additionally maintained it had been statutorily “entrusted and empowered with the affirmative duty to regulate and manage [the Registry],” and accordingly had jurisdiction to pursue the complaints against Lamb. ¶10 On September 14, 2005, the administrative law judge (ALJ) hearing the matter issued and filed an order finding the question of timely notification was one of fact, making dismissal improper. The ALJ also found Department had jurisdiction over matters relating to licensing of nurse aides and the Registry and denied Lamb’s motion to dismiss. In this order, the ALJ set the case for hearing on October 27, 2005. ¶11 The ALJ called the case at the appointed time on October 27th. Neither Lamb nor his counsel made an appearance. The ALJ noted the green return card addressed to Lamb’s Vol. 81 — No. 24 — 9/11/2010

counsel with the order setting the date of hearing had been signed on September 16, 2005, but by someone other than counsel. The ALJ considered Lamb’s failure to appear as an admission of Department’s jurisdiction and the allegations in Department’s Petition. Department nonetheless offered the Attorney General’s report of investigation, and the above mentioned Department incident reports, as “factual support for the Court’s essentially ... default judgment.” No witnesses were heard, nor other evidence adduced. The ALJ announced the record closed at the end of the hearing. ¶12 On March 27, 2006, the ALJ filed his Final Administrative Decision and Order finding in favor of Department.3 The ALJ made findings of fact based on witness statements contained in the Attorney General’s report of investigation. The ALJ concluded Lamb had “engaged in improper contact with a resident that was sexual in nature and violated his obligations of care pursuant to prevailing Oklahoma and federal law.” The ALJ ordered Department to reflect in the Registry that Lamb had “committed mistreatment and physical abuse of a resident.” There is nothing in the record to explain the delay by the ALJ in filing the final order,4 nor is there anything indicating Lamb asked Department to rehear or reconsider its order as authorized by 75 O.S.2001 §317. ¶13 Lamb did file a timely Petition for Judicial Review in accordance with 75 O.S. 2001 §318(B)(2) on April 26, 2006. This Petition related Lamb had raised the issue of Department’s jurisdiction by his pleadings there and that he had moved for continuance on August 22, 2005. Lamb stated he had received a letter from Department informing him the August 23, 2005 hearing had been continued, but no new date was given. Lamb’s Petition asserted the next notification he or his counsel received was the March 27, 2006 final order issued by the ALJ. He further asserted the October 27, 2005 hearing was held without notice to him or counsel. Lamb again contended Department was without jurisdiction to proceed against him because Department had failed to provide the timely 10 day notice of investigation required by 42 C.F.R. §488.335. ¶14 In its May 3, 2006 Answer, Department denied those portions of Lamb’s Petition alleging lack of [1] notice, both as to Department’s investigation and the October 27, 2005 hearing, and [2] jurisdiction in the administrative proceedings. After some delay in Department’s

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filing the administrative record, a briefing and oral argument schedule was set, with briefing beginning in May 2008. ¶15 Meanwhile, in March 2008, Lamb’s counsel withdrew after Lamb had retained other counsel. On April 24, 2008, the counsel who had withdrawn filed an affidavit with the trial court stating Lamb did not appear at the October 27, 2005 hearing “[d]ue to an oversight in [Counsel’s] office.” The affidavit states Lamb was not informed of the hearing because, although the order setting the date of hearing was received in his office by a member of his staff, it was mistakenly not placed in Lamb’s file, nor was it “calendared.” ¶16 After briefing by the parties, the matter was heard for argument in the trial court on July 29, 2008. At this hearing, Lamb offered certain affidavits which he suggested would counter the statements contained in the Attorney General’s investigative report. The affidavits had only recently been obtained and had not been offered in the administrative proceedings. Department objected because Lamb had failed to comply with the deadline for submission of the affidavits set by the court, and because the trial court was restricted to the administrative record, unless irregularities in Department’s procedures were alleged. See, 75 O.S.2001 §321. The trial court sealed the affidavits without viewing them, and asked the parties to provide further briefing on whether they could be considered. ¶17 Lamb, relying on the affidavit of his former counsel, also asked the trial court to vacate Department’s default final administrative order because [a] his failure to appear was due to no fault of his own, and [b] he was denied due process when Department failed to give him timely notice of its investigation into the allegations against him. ¶18 The trial court filed its Journal Entry of Judgment on January 23, 2009. The court denied Lamb’s request to consider the extraneous affidavits and found in favor of Department. The trial court entered specific findings regarding the major issues. The court found Department had complied with the notice requirements of 42 C.F.R. §488.335(c)(2) when it gave Lamb notice of the investigation within 10days of the date it concluded its investigation. The trial court further found Lamb’s failure to appear at the October 2005 hearing “was not occasioned by excusable cause or unavoidable casualty” so as to justify vacating Department’s final order, even though the failure to appear was due to 1958

negligence of counsel, citing American Bank of Commerce v. Chavis, 1982 OK 66, 651 P.2d 1321. Finally, the court found Department’s decision was “well grounded in fact and law.” Lamb brings his appeal from the trial court’s judgment. ¶19 Here, Lamb first reiterates his contention Department deprived him of due process by not giving him written notice within 10 days of commencement of its investigation, pursuant to 42 C.F.R. §488.335(c)(2). Secondly, he contends the trial court should have remanded the matter to Department for rehearing where he could present his case. ¶20 Review of Department’s administrative action is governed by the Administrative Procedures Act (APA), specifically 75 O.S.2001 §322.5 Under the APA, the district court, the Court of Civil Appeals, and the Supreme Court apply the same review standards to the administrative record under §322. City of Tulsa v. State ex rel. Public Employees Relations Bd., 1998 OK 92, 967 P.2d 1214. Generally, an administrative decision should be affirmed if the administrative proceedings are free from prejudicial error to the appealing party. Id., at 1219. The reviewing court may not substitute its judgment for that of the agency as to the weight of the evidence. Id. ¶21 The parties’ contentions and arguments regarding Lamb’s assertion he was denied due process by Department’s failure to give him 10 days notice of its investigation center on their respective interpretations of 42 C.F.R. §488.335(c)(2). Normally, that would be a question of law to be reviewed de novo, but we need not decide that issue because [1] we find Lamb had, at a minimum, constructive notice of the investigation, and [2] presuming arguendo the notice was to be given within 10 days of initiating the investigation as Lamb contends, he has failed to establish how he was actually prejudiced by the failure to do so. ¶22 In her sworn statement reported in the Attorney General’s report, McCall’s then human resources director stated she had called Lamb the day after the alleged abuse and advised him of the allegation against him. The report also contains a statement from one of McCall’s nurses that Lamb, shortly after the alleged incident, asked if she was aware of what was going on with him. When she answered that she did not, Lamb said — “I’m being accused of sexual inappropriateness with [A.R.].” The Attorney General’s report also relates that “Lamb secured legal counsel short-

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ly after the allegation surfaced.” Finally, as noted above, an incident report submitted to Department from McCall’s states that by less than 10 days later a representative of the Attorney General’s office had already visited the facility with respect to the allegations. ¶23 In Manokoune v. State Farm Mut. Auto. Ins. Co., 2006 OK 74, 145 P.3d 1081, the Supreme Court quoted from 25 O.S.2001 §13 — “Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself.” The facts set forth in the foregoing paragraph, considered together, are certainly sufficient to have put Lamb “upon inquiry” that he was accused of “sexual inappropriateness” and that the allegations were being investigated with a view toward administrative and/or criminal action. Further, Lamb has provided no legal authority that failure to provide actual written notice is otherwise jurisdictional, or imposed some limitations bar to administrative action under Department’s Registry statutory authorization. ¶24 We also find no merit to Lamb’s argument that he was denied due process by Department’s alleged failure to provide him written notice within 10 days of initiation of its investigation. Lamb was immediately aware of the allegations against him. He retained legal counsel “shortly after the allegation surfaced.” On advice of counsel, he gave no statement that would have prejudiced him. While he complains that failure to give timely notice prejudiced his ability to obtain and preserve possibly exculpating evidence, there is nothing in the record to show that actually happened. In fact, the affidavits he sought to introduce in the trial court proceedings to rebut statements in the Attorney General’s report were obtained in July 2008. ¶25 While we have some concern about Department’s repeated unexplained delays in making its allegations formal and in prosecuting its administrative action, we have not been informed of any actual prejudice occasioned by those delays or by Department’s giving written notice of the allegations in May 2005. Lamb has conceded Department did give proper notice of its hearing set for October 27, 2005, but contended in the trial court, and again here, he should not suffer the consequences of an administrative order rendered through default caused by apparent negligence in his former Vol. 81 — No. 24 — 9/11/2010

counsel’s office. We do find merit in this latter contention. ¶26 The trial court found that “[a]lthough [Lamb’s] failure to appear may have been due to the negligence of his attorney, such negligence, by itself, does not constitute an unavoidable casualty” such as to warrant vacation of Department’s order. In so finding, the trial court relied on American Bank of Commerce v. Chavis, 651 P.2d at 1323. Chavis, at 1323, does state — “This Court has repeatedly held that the negligence of an attorney while representing his client is imputed to the client and constitutes negligence of the client, and accordingly does not constitute unavoidable casualty and misfortune, justifying the vacation of a judgment.” The Court also reaffirmed its holdings that an attorney’s negligence is imputed to the client. ¶27 However, the Chavis Court, later in its consideration relates that “having so determined, there remains the question of whether the gravity of the inadvertence or neglect of a party is such as ought, under the particular circumstances of each case, to deprive the neglectful party of his day in court.” The Court, at 1324, found its prior holdings were “unduly harsh and restrictive and tend unjustly to reduce to ukase that which ought to be weighed and determined under all of the facts and circumstance of each case.” In weighing the facts, the court’s “discretion is to be exercised in the furtherance of justice.” In Chavis, the default resulted from “a breakdown in office procedure, together with reliance upon misinformation received by telephone from a deputy court clerk.” Under those facts the Supreme Court held “the trial court did not clearly abuse its discretion in setting aside the default judgment.” ¶28 The Court of Civil Appeals reached a similar conclusion in Heitman v. Brown, 1996 OK CIV APP 148, 933 P.2d 948. There, the attorney “mis-docketed” the date for the second day of a hearing and missed the hearing where the trial court granted a default judgment. The default judgment deprived the party of the opportunity to present evidence on a critical issue. The trial court denied the party’s motion to vacate the default judgment. The Court of Civil Appeals, citing Chavis, restated the often expressed rule that “[d]efault judgments are never viewed with favor,” and reversed the trial court’s denial of the motion to vacate. The Court of Civil Appeals noted “the Supreme Court has expressed concern that an attorney’s negligence in docketing court appearances, if

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too generously excused, is a potential device for delaying unduly the trial of a case.” This is clearly not a factor here, where there have been repeated unexplained delays by Department in initiating the administrative action. ¶29 As we have discussed at length above, Lamb relies on the alleged failure by Department to give timely notice of its investigation to make his constitutional case. Such a constitutional infirmity would have been prospective grounds for setting aside or reversing and remanding Department’s final order under 75 O.S.2001 §322(1)(a).6 However, we have held there was no constitutional deprivation here. Additionally, we are unconvinced Lamb has established any of the other grounds set forth in §322(1). ¶30 However, §322(1) is not the only authority in §322 to return the matter to the administrative agency for further consideration. In addition to the specific grounds set forth in §322(1), §322(2) provides: The reviewing court, also in the exercise of proper judicial discretion or authority, may remand the case to the agency for the taking and consideration of further evidence, if it is deemed essential to a proper disposition of the issue. ¶31 The question is then whether it is deemed essential to a proper disposition of the allegations against Lamb for Department to consider further evidence. We hold that it is. Because of the default administrative order issued by the ALJ, Lamb was deprived of any opportunity to challenge Department’s evidence or to present evidence in his own defense. The Supreme Court has recognized that in administrative actions, “[t]he important point in the proceedings before the Board was that each party be accorded a full and fair hearing on all points at issue.” Corporation Commission v. Oklahoma State Personnel Bd., 1973 OK 94, 513 P.2d 116. ¶32 The ALJ did have the authority to grant a default order pursuant to 75 O.S.2001 §309(E), and, under the facts then present, was justified in doing so. The facts relating to Lamb’s failure to appear were then brought forward to the trial court upon review. Under Chavis and Heitman, the trial court erred in failing to exercise its §322(2) “proper judicial discretion” to remand the case to Department for taking and considering Lamb’s evidence, which was essential to a proper disposition of the allegations against him. 1960

¶33 Pursuant to 63 O.S.Supp.2004 §11951(D)(8), any long term care facility is barred from hiring Lamb because of the adverse Registry entry. The Supreme Court recognized the severity of administrative action precluding employment in Protective Health Services v. Vaughn, 2009 OK 61, 222 P.3d 1058, where it held, “[t]he loss of a license which is required to work in a given field negatively impacts both a person’s livelihood and reputation.” In Miller v. Commissioner of Health of the State of New York, 90 N.Y.2d 783, 689 N.E.2d 518, the Court of Appeals of New York noted an adverse Registry entry affects not only the ability to work in the residential health care industry, “but also may well extend to prevent future employment opportunities in any arena.” ¶34 In view of the real, and potential, impact of Department’s Registry entry, and the lack of any direct fault on Lamb’s part in failing to appear for the hearing, we hold it is proper to remand the matter back to Department in accordance with §322(2) to hear Lamb’s evidence. This will afford Lamb the opportunity “to respond and present evidence and argument on all issues involved” as mandated under the APA in 75 O.S.2001 §309. ¶35 The trial court’s judgment is REVERSED and this matter is REMANDED to the Oklahoma Department of Health for further proceedings consistent with this opinion. HETHERINGTON, J., concurs. KENNETH L. BUETTNER, P.J., concurring in result: ¶36 I agree that this case should be remanded and Appellant should be allowed to present evidence. I disagree with the opinion insofar as it holds that constructive notice may satisfy the State’s notice obligation under 42 C.F.R. §488.335(c)(2). In this case, the Attorney General opened its case December 17, 2003, investigated the allegations and issued its report May 4, 2004, and closed its case May 12, 2004 with a decision not to prosecute. It is unclear why the Attorney General’s report was not sent to the Department until November 5, 2005. The Department then says it finished its investigation May 15, 2005 and sent written notice to Appellant by letter dated May 19, 2005 but mailed June 2, 2005. ¶37 Simply being aware of the allegations, or even that the State has commenced an investigation does not satisfy the notice requirement. 1. Section 488.335(c) provides: c) Notification —

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(1) Individuals to be notified. If the State makes a preliminary determination, based on oral or written evidence and its investigation, that the abuse, neglect or misappropriation of property occurred, it must notify in writing-(i) The individuals implicated in the investigation; and ... (2) Timing of the notice. The State must notify the individuals specified in paragraph (c)(1) of this section in writing within 10 working days of the State’s investigation. 2. The record does not reflect what action, if any, the trial court took on Lamb’s Petition for Writ of Prohibition. 3. Section 310:677-7-4(a) of the Oklahoma Administrative Code, which regulates issuance of orders in matters relating to the Registry, provides: The [ALJ] shall issue a decision with fifteen (15) working days following the close of the hearing record. ... 4. See note 3, supra. 5. 1) In any proceeding for the review of an agency order, the Supreme Court or the district or superior court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are: (a) in violation of constitutional provisions; or (b) in excess of the statutory authority or jurisdiction of the agency; or (c) made upon unlawful procedure; or (d) affected by other error of law; or (e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or (f) arbitrary or capricious; or (g) because findings of fact, upon issues essential to the decision were not made although requested. (2) The reviewing court, also in the exercise of proper judicial discretion or authority, may remand the case to the agency for the taking and consideration of further evidence, if it is deemed essential to a proper disposition of the issue. .... 6. Note 5, supra.

Robert L. Irby, IRBY & IRBY, P.L.L.C., Holdenville, Oklahoma, for Defendant/Appellee Bryan Jay. Harold E. Heath, HAROLD HEATH LAW OFFICES, P.C., Holdenville, Oklahoma, for Defendants/Appellees Dean Goforth and Sooner Perforations and Machine Co., L.L.C. DEBORAH B. BARNES, JUDGE: ¶1 This appeal involves an agreement “not to use during or after termination of employment or divulge to others any secret or confidential information,” and allegations of trade secret misappropriation. MTG Guarnieri Manufacturing, Inc., d/b/a Hearn Machine Tool (Hearn) is the former employer of Bradley Clouatre (Clouatre) and Bryan Jay (Jay). Hearn alleges that Clouatre and Jay breached their agreement with Hearn by using and divulging certain information acquired at Hearn to their current employer, Sooner Perforations and Machine Co., L.L.C. (Sooner Perforations). Hearn also alleges that Sooner Perforations’s manager and sole owner, Dean Goforth (Goforth), its employee Jason Cherry (Cherry), Clouatre and Jay misappropriated Hearn’s trade secrets. The trial court granted each defendant’s motion for summary judgment and denied Hearn’s new trial motion.

APPEAL FROM THE DISTRICT COURT OF SEMINOLE COUNTY, OKLAHOMA

¶2 Hearn timely appealed. The appeal has been assigned to the accelerated docket and stands submitted without appellate briefing pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2004, ch. 15, app. 1. After reviewing the record on appeal and applicable law and considering oral arguments presented to the panel by the parties on April 9, 2010, we find that the trial court erred in granting summary judgment because genuine issues of material fact remain. Therefore, we reverse the trial court’s order granting summary judgment and its order denying Hearn’s Motion for New Trial. We remand this case for further proceedings in a manner consistent with this Opinion.

HONORABLE GARY SNOW, TRIAL JUDGE

UNCONTROVERTED FACTS1

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

¶3 The following material facts are uncontroverted:

Larry Jay McMains, JOHNSTON & MCMAINS, PC, Seminole, Oklahoma, for Plaintiff/Appellant.

1. Clouatre and Jay, both welders, are former employees of Hearn.

2010 OK CIV APP 71 MTG GUARNIERI MANUFACTURING, INC., d/b/a HEARN MACHINE TOOL, Plaintiff/Appellant, vs. BRADLEY CLOUATRE, BRYAN JAY, DEAN GOFORTH, JASON CHERRY and SOONER PERFORATIONS AND MACHINE CO., L.L.C., Defendants/Appellees. Case No. 107,138. June 17, 2010

Joel D. Butterworth, Holdenville, Oklahoma, for Defendant/Appellee Bradley Clouatre. Vol. 81 — No. 24 — 9/11/2010

2. Hearn is a manufacturing company which produces, pertinent to this appeal, perforated pipe for use in the oil and gas industry.

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3. Neither Clouatre nor Jay had any experience perforating pipe prior to their employment at Hearn. 4. As Hearn employees, Clouatre and Jay each executed an agreement2 containing, in pertinent part, the following: (1) “I shall not use during or after termination of employment or divulge to others any secret or confidential information,” and (2) “I agree that upon termination of employment with the Company I will deliver to the Company all drawings, blueprints, manuals, formulas, customer lists and all other materials obtained during the period of my employment.” 5. Hearn does not own any patents. 6. Jay was directly involved in the construction of Hearn’s drill machine used to perforate pipes. 7. Any knowledge of the customers of Hearn attributable to Jay and Clouatre is from their memories and not from any tangible items taken from Hearn. 8. Clouatre and Jay are currently employed by Sooner Perforations. 9. Sooner Perforations is also in the business of perforating pipe, but, unlike Hearn, it uses plasma technology. 10. Clouatre, Jay, and Cherry are employees of Sooner Perforations, and Goforth is the manager and owner of Sooner Perforations. PROCEDURAL BACKGROUND ¶4 Hearn filed its Petition on April 22, 2008, claiming misappropriation of trade secrets, breach of contract, tortious interference with business relations, conversion, and violation of standards of good faith and fair dealing. All defendants filed motions for summary judgment.3 In a court minute filed February 18, 2009, the trial court sustained the summary judgment motions. The trial court’s “Order Sustaining Motions for Summary Judgment” was filed on March 6, 2009. On February 20, 2009, Hearn filed a motion for new trial asking the trial court to reexamine its decision on defendants’ Motions for Summary Judgment. In a Journal Entry filed on May 26, 2009, the trial court denied Hearn’s motion for new trial. From this order, and from the “Order Sustaining Motions for Summary Judgment,” Hearn appeals. 1962

¶5 Hearn asserts the following issues in the Petition in Error: (1) the trial court failed to recognize the existence of material disputed facts and conflicting evidence that should have rendered summary judgment inappropriate; (2) the trial court erred by using 15 O.S.2001 §219A as a basis for its decision; and (3) the trial court failed to apply the correct law, including 78 O.S.2001 §§85-94. We find that the trial court erred because genuine issues of material fact remain. Therefore, we reverse and remand for further proceedings. STANDARD OF REVIEW ¶6 The standard of review for this appeal is as follows: Summary process — a special pretrial procedural track pursued with the aid of acceptable probative substitutes -- is a search for undisputed material facts which, sans forensic combat, may be utilized in the judicial decision-making process. Summary relief is permissible where neither the material facts nor any inferences that may be drawn from uncontested facts are in dispute, and the law favors the movant’s claim or liability-defeating defense. Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense afford legitimate support for nisi prius resort to summary process for a claim’s adjudication. Summary relief issues stand before us for de novo review. All facts and inferences must be viewed in the light most favorable to the non-movant. Appellate tribunals bear the same affirmative duty as is borne by nisi prius courts to test for legal sufficiency all evidentiary material received in summary process in support of the relief sought by the movant. Only if the court should conclude there is no material fact (or inference) in dispute and the law favors the movant’s claim or liability-defeating defense is the moving party entitled to summary relief in its favor. A trial court’s denial of a motion for new trial is reviewed for abuse of discretion. Where, 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. Judicial discretion is abused

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when a trial court errs with respect to a pure, unmixed question of law.

breach. Digital Design Group, Inc. v. Information Builders, 2001 OK 21, ¶33, 24 P.3d 834, 843.

Reeds v. Walker, 2006 OK 43, ¶¶8-9, 157 P.3d 100, 106-107 (footnotes omitted, emphasis added). See also Rule 13, Rules for District Courts of Oklahoma, 12 O.S. Supp. 2002, ch. 2, app.

¶10 Regarding the first element, it is undisputed that Clouatre and Jay signed agreements “not to use during or after termination of employment or divulge to others any secret or confidential information.” Regarding the remaining elements, although “[a]s a general matter, ‘[c]onfidential data regarding operating and pricing policies can . . . qualify as trade secrets,’” the focus for determining whether the agreements were breached is not on whether Hearn’s customer information qualifies as a trade secret under the UTSA. Southwest Stainless, LP v. Sappington, 582 F.3d 1176, 1189 (10th Cir. 2009) (quoting Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 952 (10th Cir. 1978)). Instead, the focus is on whether the agreements signed by Clouatre and Jay were intended to protect Hearn’s customer information. “A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful.” 15 O.S.2001 §152. Whether it was the intent of the parties to protect Hearn’s customer information as “secret or confidential information” in their agreements is unresolved and in dispute.

ANALYSIS ¶7 Hearn claims that Clouatre and Jay breached their agreements “not to use during or after termination of employment or divulge to others any secret or confidential information,” and that all defendants misappropriated Hearn’s trade secrets. The alleged “secret or confidential information” and trade secrets are (1) Hearn’s customer information,4 and (2) Hearn’s methods, systems, and processes used to simultaneously perforate multiple pipe joints.5 Hearn seeks, as remedies, monetary damages, unjust enrichment, and/or a permanent injunction against all defendants preventing them from using the secret or confidential information and trade secrets acquired by Clouatre and/or Jay during their employment with Hearn.6 1. Hearn’s Customer Information as “Secret or Confidential Information” Pursuant to the Agreement Signed by Clouatre and Jay ¶8 Hearn claims that Clouatre and Jay breached their agreements “not to use during or after termination of employment or divulge to others any secret or confidential information” by utilizing customer information of Hearn. Hearn does not simply allege that Clouatre and Jay took tangible customer lists.7 Instead, Hearn states, for example, that Clouatre “had knowledge of our customer lists and pricing for our services.”8 (Emphasis added). In the deposition of Hearn’s president, Matthew Guarnieri, pp. 4-5, he is asked to identify the secret or confidential information Cloutre allegedly utilized. Guarnieri identifies various factors, including “[t]he customer list to which we had. The known market that we operated within. The monies that were made from that process.” (Emphasis added.)9 ¶9 Title 78 O.S.2001 §92 states that the Uniform Trade Secrets Act (UTSA) does not affect contractual remedies, whether or not based upon misappropriation of a trade secret. To recover for a breach of contract, Hearn must show: 1) formation of a contract; 2) breach of the contract; and 3) damages as a direct result of the Vol. 81 — No. 24 — 9/11/2010

¶11 It is also disputed whether Clouatre and/or Jay actually utilized Hearn’s customer information and did so to Hearn’s detriment. For example, in Jay’s motion for summary judgment, he states that any loss of business on the part of Hearn is only the result of Hearn’s higher prices, antiquated technique, and natural split in the market since the formation of Sooner Perforations.10 Jay asserts that Hearn has no evidence that it has suffered any damages attributable to any defendants in this case.11 On the other hand, Guarnieri states in his affidavit that Sooner Perforations “has an unfair competitive advantage because it has not been required to spend the time and money invested by Hearn in developing its . . . market. The loss of profits in Hearn’s pipe perforating division caused by the unfair competition of Sooner will have a dramatic impact on the viability of the entire company.”12 Because genuine issues of material fact remain, the trial court erred in granting summary judgment on the issue of whether Clouatre and Jay breached their agreements “not to use during or after termination of employment or divulge to others any secret or confidential information.”

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2. Hearn’s Pipe Perforating Methods, Systems, and Processes as a Trade Secret Pursuant to the UTSA ¶12 In 1986 Oklahoma adopted the UTSA, 78 O.S.2001 §§85-94.13 To prove misappropriation of a trade secret, Hearn must show (i) the existence of a trade secret, (ii) misappropriation of the secret by defendants, and (iii) use of the secret to Hearn’s detriment.14 As detailed below, all three elements are in genuine dispute regarding Hearn’s pipe perforating methods, systems, and processes. i. Existence of a Trade Secret ¶13 The UTSA sets forth the definition of a trade secret in Oklahoma; in addition, the Oklahoma Supreme Court has adopted six factors from the Restatement of Torts, §757, Comment b (1939), to help determine whether information is a trade secret. Amoco Production Co. v. Lindley, 1980 OK 6, 609 P.2d 733. See also Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1245 (10th Cir. 2006).15 The UTSA, §86, defines a trade secret as: [I]nformation,16 including a formula, pattern, compilation, program, device, method, technique or process, that: a. derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and b. is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The Restatement factors are: (1) the extent to which the information is known outside of the business;17 (2) the extent to which the information is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information;18 (4) the value of the information to the business and to competitors; (5) the amount of effort or money expended by the business in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. See Amoco Production Co. v. Lindley, 1980 OK 6, ¶41, 609 P.2d 733, 743. Whether information qualifies as a trade secret is a question of fact. See Central Plastics Co. v. Goodson, 1975 OK 71, ¶29, 537 P.2d 330, 333-35. See also 1964

Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 951 (10th Cir. 1978). ¶14 Applying the UTSA’s definition and the Restatement factors to this case, and viewing the facts in a light most favorable to Hearn, it is apparent that the issue of whether Hearn’s perforation methods, systems and processes constitute a trade secret is a disputed issue of fact. In regard to the efforts employed by Hearn to maintain secrecy, Hearn has required its employees to sign an agreement requiring them not to “use during or after termination of employment or divulge to others any secret or confidential information.” See supra. Moreover, Hearn asserts that the processes and methods it uses to perforate pipe cannot be duplicated by a casual observer of its operations and those who might have the ability or opportunity to replicate them are required to sign non-disclosure agreements.19 Regarding the amount of effort or money expended by Hearn in developing the information, Hearn asserts that the research and development required to produce the processes and methods used in its perforating business were expensive and time consuming.20 As to the value of the information, Hearn asserts that the perforating portion of its business is the most lucrative.21 Finally, in regard to the information not being generally known, Hearn asserts that prior to Sooner Perforations’s misappropriation, Hearn was the only company in the world drilling multiple pipe joints.22 ¶15 The defendants dispute Hearn’s claim that its perforating processes, methods, and techniques are a trade secret. They assert that Hearn did not attempt to obtain a patent or to take any legal action to protect its alleged trade secret other than to have Clouatre and Jay sign the agreements mentioned above.23 They also assert that the process used by Hearn to perforate pipe is open to the public.24 ¶16 Based upon the evidence presented at this stage in the litigation, we find that Hearn has shown “the reasonable probability, something beyond a mere contention, that [it] will be able to produce competent, admissible evidence at the time of trial which might reasonably persuade the trier of fact in [its] favor on the issue in dispute.” Davis v. Leitner, 1989 OK 146, ¶15, 782 P.2d 924, 927. It is an issue in genuine dispute whether Hearn’s methods, systems, and processes used to simultaneous-

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ly perforate multiple pipe joints constitute a trade secret. ii. Misappropriation of the Alleged Trade Secret ¶17 Although Sooner Perforations, unlike Hearn, uses “plasma technology” to perforate pipe, Hearn asserts that the system and method employed by Sooner Perforations is essentially the same as that employed by Hearn.25 A wellestablished principle of trade secret law is that a party may not use another’s genuine trade secret, even with independent improvements or modifications, so long as the product or process is substantially derived from the trade secret. American Can Co. v. Mansukhani, 742 F.2d 314, 328-29 (7th Cir. 1984).26 “If the law were not flexible enough to reach such modifications, trade secret protection would be quite hollow.” Id. ¶18 Hearn has attached an affidavit of its president, Matthew Guarnieri,27 which states, in pertinent part, that Clouatre and Jay and a third person, in the presence of Hearn’s president, “discussed adapting Hearn’s pipe perforating machine into a plasma machine . . . .”28 Hearn also cites to the deposition of Jay to support its assertion that Sooner Perforations adopted essentially the same process for perforating pipe as Hearn.29 We find that Hearn has shown “the reasonable probability, something beyond a mere contention, that [it] will be able to produce competent, admissible evidence at the time of trial which might reasonably persuade the trier of fact” that Sooner Perforations’s plasma technology is essentially the same as, or substantially derived from, Hearn’s pipe perforating processes, methods, and techniques. Davis v. Leitner, 1989 OK 146, ¶15, 782 P.2d 924, 927. ¶19 Having determined that Sooner Perforations’s plasma technology may be a misappropriation of Hearn’s alleged trade secret, we must now analyze the defendants separately to determine if there is a genuine dispute as to whether they each may be found to have misappropriated Hearn’s alleged trade secret. Clouatre and Jay ¶20 Regarding the two former employees, Clouatre and Jay, the issue of misappropriation is in genuine dispute. Misappropriation is defined, in pertinent part, as the “disclosure or use of a trade secret of another without express or implied consent by a person who: . . . (2) at the time of disclosure or use, knew or had reaVol. 81 — No. 24 — 9/11/2010

son to know that his knowledge of the trade secret was: . . . (b) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use . . . .” 78 O.S.2001 §86(2)(b). It is undisputed that both Clouatre and Jay signed an agreement while employed by Hearn “not [to] use during or after termination of employment or divulge to others any secret or confidential information.” Regarding Clouatre and Jay, the issue of misappropriation is in genuine dispute because its resolution depends upon two issues of disputed fact: whether the agreements gave rise to a duty to maintain the secrecy of Hearn’s trade secrets, and whether Hearn’s pipe perforation process is such a trade secret. Cherry ¶21 Regarding Cherry, an employee of Sooner Perforations, the issue of misappropriation is also in genuine dispute. Misappropriation is defined, in pertinent part, as “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means,” and/or as “disclosure or use of a trade secret of another without express or implied consent by a person who: . . . (2) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was: . . . (c) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use . . . .” 78 O.S.2001 §86(2)(c). Hearn asserts in its Response to Cherry’s Motion for Summary Judgment that Cherry recognized that the information about Hearn’s methods shared with him by Clouatre and Jay was confidential and contained trade secrets. Hearn cites to Cherry’s own deposition in support of this assertion.30 Applying the pertinent language found in the UTSA for the definition of misappropriation, there is a substantial controversy whether Cherry misappropriated Hearn’s alleged trade secret. Goforth ¶22 Regarding Goforth, the manager and sole member31 of Sooner Perforations, the issue of misappropriation by him in his individual capacity is also in genuine dispute. Misappropriation is defined, in pertinent part, as “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means,” and/ or as “use of a trade secret of another without

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express or implied consent by a person who: … (2) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was: . . . (c) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use ….” 78 O.S.2001 §86(2) (emphasis added). Goforth claims that he was not involved with the dayto-day operations at Sooner Perforations,32 that he merely assented to the business plan regarding entering the perforating pipe business communicated to him by Cherry,33 and that there is no evidence that Goforth knew Clouatre and Jay were supposed to keep something secret.34 However, Hearn asserts (citing to Goforth’s deposition testimony) that Goforth “was advised of the wrongdoing of Jay and Clouatre and continued to compete against Hearn using the trade secrets and confidential information misappropriated by Sooner[‘s] employees, Cherry, Jay and Clouatre.”35 Therefore, there is a genuine dispute whether Goforth knew that there was a trade secret that was improperly acquired. Furthermore, even if Goforth did not have knowledge of the impropriety, there is a substantial controversy whether Goforth had reason to know as the acting manager of Sooner Perforations that the alleged trade secret was acquired as a result of either or both Clouatre and Jay breaching their agreements with Hearn. ¶23 Goforth asserts that as a manager of a limited liability company he cannot be personally liable without facts of personal wrongdoing. Goforth cites as authority 18 O.S.2001 §2016(4), which states that “[a] manager is not liable for any action taken as a manager, or any failure to take any action, if the manager performed the duties of the office in compliance with the business judgment rule as applied to directors and officers of a corporation . . . .” The business judgment rule in the context of corporate law relates to an action by a corporation or its shareholders against a director for breach of the director’s duty of loyalty.36 Therefore, this statute is inapposite. Goforth further asserts the only action taken by him was in his capacity as the manager of Sooner Perforations, not as an individual. Hearn asserts that before Sooner Perforations was ever formed, Cherry, Clouatre and Jay had provided to Goforth a business plan with confidential information and trade secrets misappropriated by Jay and Clouatre. 1966

¶24 “A person who is a member or manager, or both, of a limited liability company is not liable for the obligations of a limited liability company solely by reason of being such member or manager or both.” 18 O.S.2001 §2022. However, a manager of a limited liability company is liable for “[a]cts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law . . . .” 18 O.S. Supp. 2004 §2017(B)(2). It is in dispute whether Goforth acted in good faith and did not engage in intentional misconduct or knowingly violate the law in performing his managerial duties for Sooner Perforations. If Goforth’s actions were not in good faith and he knowingly violated the law, he is not shielded as a manager from personal liability. Sooner Perforations ¶25 Hearn correctly argues that Sooner Perforations is bound by the knowledge of employees under the doctrine of respondeat superior. In general, a principal is bound by notice to or the knowledge of his agent in respect to the matters within the agent’s authority. State of Oklahoma ex rel. Oklahoma Bar Association v. Scroggs, 2003 OK 21, 70 P.3d 821. Furthermore, in general, even if a principal did not authorize an agent’s acts, if the principal accepts the benefits of his/her agent’s acts, or if the reasonably prudent person would become aware of those benefits, then the principal ratifies the agent’s acts if the benefits are retained. C. H. Stuart, Inc. v. Bennett, 1980 OK 135, 617 P.2d 879. Therefore, Hearn argues, Sooner Perforations, through its employees, had constructive knowledge of the alleged misappropriation and/or ratified their alleged misappropriation of Hearn’s trade secret. ¶26 Respondeat superior is a legal theory that holds an employer liable for the willful torts of an employee acting within the scope of employment in furtherance of assigned duties. Schovanec v. Archdiocese of Oklahoma City, 2008 OK 70, 188 P.3d 158. See also Nelson v. Pollay, 1996 OK 142, ¶7 n.23, 916 P.2d 1369, 1374 n.23 (under the doctrine of respondeat superior, a principal or employer is generally held liable for those acts of an agent or employee which fall within the latter’s employment or authority). Depending on the resolution of the disputed issues of fact regarding whether Sooner Perforations’s employees misappropriated Hearn’s trade secrets, Sooner Perforations may be bound by the acts of its employees in this case.

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iii. Use of the Alleged Trade Secret to Hearn’s Detriment ¶27 In Jay’s motion for summary judgment he states that any loss of business on the part of Hearn is the result of Hearn’s higher prices, antiquated technique and natural split in the market since the formation of Sooner Perforations.37 Jay asserts that Hearn has no evidence that it has suffered any damages attributable to any defendants in this case.38 In Goforth and Sooner Perforations’s Motion for Summary Judgment, they assert that Hearn simply expects all pipe perforating business to belong to it.39 On the other hand, Guarnieri states in his affidavit that Sooner Perforations “has an unfair competitive advantage because it has not been required to spend the time and money invested by Hearn in developing its pipe perforating systems and market. The loss of profits in Hearn’s pipe perforating division caused by the unfair competition of Sooner will have a dramatic impact on the viability of the entire company.”40 Based upon this conflicting evidence, we find that there is a substantial controversy as to whether the use of this alleged trade secret by Sooner Perforations has caused detriment to Hearn. ¶28 We note that Hear n seeks monetary damages and/or restitution (“unjust enrichment”) as remedies. Regarding monetary damages and unjust enrichment, the UTSA, §88, states: A. Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation renders a monetary recovery inequitable, a complainant is entitled to recover damages for misappropriation. Damages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty for a misappropriator’s unauthorized disclosure or use of a trade secret. B. If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made pursuant to the provisions of subsection A of this section. Vol. 81 — No. 24 — 9/11/2010

However, Hearn primarily seeks an injunction to protect its information. Regarding an injunction, the UTSA, §87, states: A. Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation. B. In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of a misappropriation that renders a prohibitive injunction inequitable. C. In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order. ¶29 “Only if the court should conclude there is no material fact (or inference) in dispute and the law favors the movant’s claim or liabilitydefeating defense is the moving party entitled to summary relief in its favor.” Reeds v. Walker, 2006 OK 43, ¶9, 157 P.3d 100, 106 (footnote omitted). We find all three elements — (1) the existence of a trade secret, (2) misappropriation of the secret by the defendants, and (3) use of the secret to the plaintiff’s detriment — are in genuine dispute regarding the misappropriation of Hearn’s pipe perforating methods, systems, and processes. We also find genuine issues of material fact regarding Hearn’s claim that Clouatre and Jay breached their agreements “not to use during or after termination of employment or divulge to others any secret or confidential information.” Therefore, we find that the trial court erred in granting summary judgment. CONCLUSION ¶30 Hearn asserts in the Petition in Error that (1) the trial court failed to recognize the existence of material disputed facts and conflicting evidence that should have rendered summary judgment inappropriate; (2) the trial court erred by using 15 O.S.2001 §219A as a basis for

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its decision; and (3) the trial court failed to apply the correct law, including 78 O.S.2001 §§85-94. Having found genuine disputes of material fact, we need not address all the other claims raised below — including tortious interference with business relations, breach of duty of good faith and fair dealing, and conversion — but remand this case to the trial court for further proceedings.41 ¶31 After reviewing the record on appeal and applicable law and considering oral arguments presented to the panel by the parties on April 9, 2010, we find that the trial court erred in granting summary judgment because genuine issues of material fact remain. Therefore, we reverse the trial court’s order granting summary judgment and its order denying Hearn’s motion for new trial. We remand for further proceedings in a manner consistent with this Opinion. ¶32 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. WISEMAN, C.J., and FISCHER, P.J., concur. 1. Hearn does not specifically controvert the facts asserted in defendants’ motions for summary judgment but does include its own statement of controverted material facts in its responses; no reply briefs were filed and there is no indication in the record that any defendant took issue with Hearn’s failure to specifically controvert the facts asserted in the motions for summary judgment. Nevertheless: Any party opposing summary judgment or summary disposition of issues shall file . . . a concise written statement of the material facts as to which a genuine issue exists . . . . All material facts set forth in the statement of the movant which are supported by acceptable evidentiary material shall be deemed admitted for the purpose of summary judgment or summary disposition unless specifically controverted by the statement of the adverse party which is supported by acceptable evidentiary material. If the motion for summary judgment or summary disposition is granted, the party or parties opposing the motion cannot on appeal rely on any fact or material that is not referred to or included in the statement in order to show that a substantial controversy exists. Rule 13(b), Rules for District Courts of Oklahoma, 12 O.S. Supp. 2002, ch. 2, app. (emphasis added). 2. The language contained in the agreements signed by Clouatre and Jay is identical. Clouatre signed his agreement on July 1, 2002, and Jay signed his agreement on July 2, 2002. See Tab 8, at Exh. A; Tab 9, at 3-I. Although it is unclear from the record when Jay began and ended his employment at Hearn, and when both Clouatre and Jay began their employment at Sooner Perforations, Clouatre states that he “was an employee of [Hearn] from July 1, 2002, until the middle of 2003, and from January 17, 2002 [sic], to April 6, 2006.” Tab 8, at Material Fact no. 1. 3. Clouatre filed his motion for summary judgment on January 15, 2009. Jay also filed his motion for summary judgment on January 15, 2009. Goforth and Sooner Perforations filed their motion for summary judgment on January 29, 2009. Cherry’s motion for summary judgment states that it incorporates the motions for summary judgment of the other defendants. Although Cherry appeared by his attorney, Richard E. Butner, at the hearing on the motions for summary judgment, Cherry did not appear at the hearing on Hearn’s motion for new trial. Cherry’s counsel has not filed an entry of appearance on appeal. 4. We note that Hearn states in its Response to the motion for summary judgment of Jay that “[t]hough it is true that one element of the confidential information and trade secrets which Hearn seeks to protect is its customer base, of far more importance is the protection of its methods, systems, and processes.” Tab 13, at p. 4.

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5. Hearn alleges that Sooner Perforations is currently using a technique, method, system, or process to perforate pipe that was developed by Hearn. Hearn phrases this alleged trade secret in more than one way. The most descriptive appears to be: the “technique and system for simultaneously perforating multiple pipe joints . . . .” Tab 12, at Controverted Fact no. 4, p. 2. 6. Hearn argues that a permanent injunction is the most appropriate remedy because (among other factors) without it, Hearn will suffer irreparable harm in the form of the loss of its perforating business. Title 78 O.S.2001 §87 states: A. Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation. B. In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of a misappropriation that renders a prohibitive injunction inequitable. C. In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order. 7. In Brenner v. Stavinsky, 1939 OK 131, ¶16, 88 P.2d 613, 615, the Oklahoma Supreme Court stated: [A] list of customers built up through years of effort in a line of business where such a list constitutes an important asset of business is a species of property in the nature of or comparable to a trade secret, and . . . where an employee obtains such a list through confidence placed in him or surreptitiously he may be restrained from using it. This court would be loath to say, however, that the use by a former employee of his memory independent of any compiled list could be restrained, in the absence of a contract to the contrary. Brenner is not applicable because the focus is on whether the parties intended to include Hearn’s customer information as “secret or confidential information” in their agreement, and, therefore, for this breach of contract claim it need not be determined whether the customer information qualifies as a trade secret under the Uniform Trade Secrets Act. Moreover, as set forth below, Hearn seeks protection of more than just “a list of customers.” 8. Response to Interrogatory No. 5, attached to Clouatre’s motion for summary judgment. 9. Tab 13, Exh. C, pp. 44-45. 10. Tab 9, at Uncontroverted Fact no. 13. 11. Jay supports this assertion by citing to p. 70 of Guarnieri’s deposition, attached to Jay’s Motion for Summary Judgment, Tab 9, that states: Q . . . Do you have any evidence . . . you have in fact lost business so far? A Not on our books per say [sic]. I mean it is through word of mouth that business had gone to and thereafter had been customers that we have operated with before. . . . 12. Tab 13, at Exh. I. 13. Section 92 of the UTSA states: A. Except as provided for in subsection B of this section, the Uniform Trade Secrets Act displaces conflicting tort, restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret. B. The Uniform Trade Secrets Act does not affect: 1. contractual remedies, whether or not based upon misappropriation of a trade secret; or 2. other civil remedies that are not based upon misappropriation of a trade secret; or 3. criminal remedies, whether or not based upon misappropriation of a trade secret. 14. Micro Consulting, Inc. v. Zubeldia, 813 F.Supp. 1514, 1534 (W.D. Okla. 1990), affirmed, 959 F.2d 245 (10th Cir. 1992). See also 78 O.S.2001 §§85-94 and, specifically, §86. 15. The Oklahoma Supreme Court has not addressed the definition of a trade secret since the passage of the UTSA. Amoco pre-dates the passage of the UTSA, but Amoco provides helpful guidance for interpreting the UTSA. In Amoco, the Oklahoma Supreme Court, in discussing the definition of trade secret, cites with approval the six factors found in the Restatement of Torts, §757, Comment b (1939). Although the UTSA’s definition of trade secret is broader than the Restatement’s, “an exact definition of a trade secret is not possible,” and the Restatement factors provide helpful guidance in determining whether infor-

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mation in a given case constitutes a trade secret pursuant to the UTSA. Central Plastics Co. v. Goodson, 1975 OK 71, ¶16, 537 P.2d 330, 333, and Amoco Production Co. v. Lindley, 1980 OK 6, ¶41, 609 P.2d 733, 743 (quoting the Restatement of Torts, §757, Comment b, at p. 6 (1939)). See also Pincheira v. Allstate Insurance Co., 190 P.3d 322 (N.M. 2008) (quoting Basic American, Inc. v. Shatila, 992 P.2d 175 (Idaho 1999)) (While the definition of a trade secret in New Mexico’s Trade Secret Act - the same definition found in Oklahoma’s UTSA — “is broader than the Restatement’s, these factors ‘still provide helpful guidance to determine whether the information in a given case constitutes ‘trade secrets’ within the definition . . .’”). In this regard, we agree with the 10th Circuit’s interpretation of trade secret law in Oklahoma. In Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1245 (10th Cir. 2006), the circuit court stated that, in addition to the UTSA, “Oklahoma has adopted six factors from the Restatement of Torts to help determine whether information is a trade secret . . . .” Accord, Southwest Stainless, LP v. Sappington, 582 F.3d 1176, 1189 (10th Cir. 2009). “Courts in [UTSA] jurisdictions often apply factors from the Restatement in order to facilitate application of the tests embodied in the statute.” Basic American, Inc. v. Shatila, 992 P.2d 175, 184 (Idaho 1999). Furthermore, the court in Amoco briefly discusses the conflicting policy considerations that arise in trade secret litigation between an employer and its right to use its employees and resources to its utmost advantage, and a former employee’s right to transfer his/her skills and knowledge to new employment opportunities. See infra. An awareness of this basic tension between the interests of the employer and the employee in trade secret litigation is also helpful when interpreting the UTSA. 16. The agreements state that Clouatre and Jay will “not use during or after termination of employment or divulge to others any secret or confidential information.” (Emphasis added.) The UTSA defines trade secret broadly as “information, including . . . .” (Emphasis added.) Furthermore, Guarnieri states in his deposition, at pp. 17-18 (Tab 9), that when Clouatre and Jay signed their respective agreements he told them that the “secret or confidential information” corresponds to the trade secrets of Hearn: Q In paragraph one, you talk about “secret or confidential information”. Did you tell them what you meant by “secret or confidential information”? A Yes. Q You did? A Yes. Q What did you tell them? A That they — the trade secrets of this company was to not be discussed outside this company business. 17. “Trade secrets and confidential information, in order to be protected against disclosure by employees, must be the particular secrets of the employer as distinguished from the general secrets of the trade in which he is engaged.” Central Plastics Co. v. Goodson, 1975 OK 71, ¶17, 537 P.2d 330, 333 (citation omitted). 18. “Trade secret status is difficult to establish and often entails establishing that affirmative and elaborate steps were taken to insure that the secret claimed would remain so.” Amoco Production Co. v. Lindley, 1980 OK 6, ¶43, 609 P.2d 733, 743. 19. Tab 13, at Controverted Fact no. 5, and supported by an excerpt from Guarnieri’s deposition at Exh. E. 20. Tab 13, at Controverted Fact no. 6, and supported by an excerpt from Guarnieri’s deposition at Exh. F. See also Tab 13, at Exh. D. (In the excerpt from Jay’s deposition found in Exh. D, Jay states that from start to finish it took as many as eight months for Hearn to develop its current system for perforating multiple pipe joints). 21. Tab 13, at Controverted Fact no. 7, and supported by excerpts from the depositions of Clouatre and Jay at Exh. G. 22. Tab 13, at Controverted Fact no. 4, and supported by excerpts from the depositions of Guarnieri and Jay at Exh. D. 23. Tab 11, at Relevant Fact no. 12, and supported by an excerpt from the deposition of Guarnieri at Exh. E, p. 40. 24. Tab 8, at Material Fact no. 9, and supported by excerpts from the depositions of Guarnieri at Exh. E, and Hearn employee Larry Minihan at Exh. F. 25. Tab 12, at Controverted Fact no. 9, and supported by the affidavit of Guarnieri at Exh. I, and by excerpts from the depositions of Guarnieri and Jay at Exh. J. 26. The Restatement of Torts, §757, Comment c (1939), states, in relevant part: To subject a person to liability . . . for the use of another’s trade secret, there is no requirement that he use it in exactly the form in which he received it. He may be liable even if he uses it with modifications or improvements upon it effected by his own efforts. Differences in detail do not preclude liability if, substan-

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tially, the process used by the actor is derived from the other’s secret . . . . The liability is avoided only when the contribution by the other’s secret is so slight that the actor’s process can be said to be derived from other sources; although even in such a case the actor is still subject to liability for harm caused by his disclosure or possession of the secret . . . .The extent of the modifications or improvements made by the actor upon the other’s secret may, however, affect the computation of damages or profits for which he is liable to the other. 27. See n. 13, supra. Although Guarnieri’s affidavit is unsigned, “[t]he materials attached to a response to a motion for summary judgment are not to be held to the standard of competent, admissible evidence. It is enough that [they] reasonably show the judge who is considering the motion that the party opposing the motion will be able at the time of trial to present competent, admissible evidence to support the allegations.” Davis v. Leitner, 1989 OK 146, ¶13, 782 P.2d 924, 926. 28. Tab 12, at Exh. I. 29. Tab 12, at Exh. J. 30. Tab 14, at Exh. C and Exh. D. In the excerpts from Cherry’s deposition provided in these exhibits, Cherry states that Clouatre and Jay identified a company to build a plasma perforating machine for Sooner Perforations, and that Clouatre and Jay told this company how they wanted the machine designed. The following exchange took place between Hearn’s counsel and Cherry in Cherry’s deposition (Tab 14, at Exh. C, p. 49): [Hearn’s counsel]: Okay. So your position is that the company [you and Clouatre and Jay] contacted and the knowledge about that company and its existence is a confidential [Cherry]: Yes. [Hearn’s counsel]: - trade secret? [Cherry]: Yes. 31. A “member” is defined under the Oklahoma Limited Liability Company Act as, in pertinent part, “a person with an ownership interest in a limited liability company . . . .” 18 O.S. Supp. 2010 §2001(14). 32. Tab 11, at Relevant Fact no. 4, and supported by an excerpt from Goforth’s deposition at Exh. A, p. 20. 33. Tab 11, at Relevant Fact no. 2, and supported by an excerpt from Goforth’s deposition at Exh. A, p. 24. 34. Tab 11, at Relevant Fact no. 10, and supported by an excerpt from the deposition of Larry Minihan at Exh. B, p. 79. 35. Tab 15, at Controverted Fact no. 12. Goforth appears to waiver back and forth between admitting that he knew at least one of the former employees (Clouatre and Jay) signed an agreement not to use or divulge secret or confidential information, and denying that either one recalled signing such an agreement. Nevertheless, in the excerpt from Goforth’s deposition on p. 38, attached as Exh. N, the following exchange appears in substantial support of Hearn’s assertion: Q. Okay. When you had that discussion with [Clouatre and Jay], in addition to telling them that they should have told about what they did to get terminated with Hearn, did you also address that confidentiality — A. Yes, I did. Q. And what did they say in that regard? A. One of them didn’t remember signing it, and they — one of them signed something and one of them didn’t, I believe was the story. 36. Warren v. Century Bankcorporation, Inc., 1987 OK 14, 741 P.2d 846; Martin v. Johnson, 1998 OK 127, ¶33 n.9, 975 P.2d 889, 897 n.9. 37. Tab 9, at Uncontroverted Fact no. 13. 38. Jay supports this assertion by citing to p. 70 of Guarnieri’s deposition, attached to Jay’s Motion for Summary Judgment, Tab 9, that states: Q . . . Do you have any evidence . . . you have in fact lost business so far? A Not on our books per say [sic]. I mean it is through word of mouth that business had gone to and thereafter had been customers that we have operated with before. . . . . 39. Tab 11, at Relevant Fact no. 17 and Exh. B. 40. Tab 13, at Exh. I. 41. In regard to Hearn’s assertion that the trial court erred in using 15 O.S.2001 §219A as a basis for its decision, we decline to discuss this issue because there is no indication that the trial court applied §219A as a basis for its decision or that the trial court assessed this issue below. This Court will not presume legal error from a silent record. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496. Rather, absent a record showing otherwise, this Court presumes that the trial court did not err. Id. See also Evers v. FSF Overlake Associates, 2003 OK 53, ¶18, 77 P.3d 581, 587 (holding that “it is not the duty of the appellate court on review to make first-instance determinations of disputed law or fact issues” that have been neither raised nor assessed at trial).

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2010 OK CIV APP 76 TERRY L. YOUNG, TRUSTEE OF THE YOUNG REVOCABLE LIVING TRUST, Plaintiff/Appellant, vs. LESLIE JOE CHAPPELL and JUDITH OTT CHAPPELL, Defendants/Appellees. Case No. 106,990. June 25, 2010 APPEAL FROM THE DISTRICT COURT OF CHOCTAW COUNTY, OKLAHOMA HONORABLE JAMES R.WOLFE, TRIAL JUDGE AFFIRMED David Youngblood, Atoka, Oklahoma, for Plaintiff/Appellant, Warren Gotcher, Gotcher and Beaver, McAlester, Oklahoma, for Defendants/Appellees. Wm. C. Hetherington, Jr., Judge: ¶1 Appellant (Young) appeals a non-jury trial judgment for Appellees (Chappells) finding a certain contract void. We AFFIRM but do not find the contract void. FACTS ¶2 Chappells purchased a farm from Young and by the time of closing, two issues had arisen that were resolved at or near the time of closing. First, there were 900 round bales of hay still on the farm that Young wanted Chappells to buy and Chappells agreed.1 Second, Chappells discovered that Young had sold an oil and gas pipeline easement across the land for $9,200.00 after Chappells had agreed to buy the farm but before closing. The parties agreed to resolve these issues allowing Young to receive $2,200 and Chappells $7,000 of the pipeline easement proceeds. The agreement also allowed Chappells to purchase from Young the 900 round bales of hay at $30 per bale with Young to deduct the $7,000 for the pipeline easement from the hay sale proceeds of $27,000. ¶3 At the parties’ request, the abstract closing company prepared a written contract memorializing their understanding which was faxed to Chappells and ultimately signed by both. Handwritten in the middle of the agreement at the request of Chappells was the following: “This contract is subject to a count and physical inspection by the Buyer.” This interlineation was initialed by both parties. Contained in the typed portion of the agreement 1970

were terms requiring the transaction to take place within 30 days of execution. The sale closed with Young to vacate the property sixty days after closing. ¶4 Young testified that the Chappells came out to inspect the hay and count, “a little after that 30 days.” At that time, the Chappells rejected the hay and refused to pay for it. Young sued the Chappells for breach of contract, seeking a $27,000 judgment, but at trial, claimed payment for the 900 bales of hay at $30 per bale, less the $7,000 credit for the easement. Chappells counterclaimed, asking for injunctive relief to direct Young to remove the hay, damages of $7,000 “pre-paid” (sic) to Young on the hay, further damages for replacement hay and finally for fraudulent misrepresentation regarding the quality of the hay inducing Chappells to close the land sale allowing Young to keep the hay prepayment. ¶5 At trial, Chappell testified regarding the thirty day inspection term that Young was still living on the property and they tried to get together several times. They each had things going on and they couldn’t get together “because of one thing or another.” There was no testimony given that either party objected to the inspection being a few days late or that Young was still on the property until after the hay was rejected and litigation began. Upon inspection, Chappells’ position was the hay was not as represented. He testified that a lot of the hay was not “this year’s hay”, it was older and there were different sized bales showing weather that had been there a long time. He further testified that he unrolled some hay and discovered there was hardly any Bermuda and “it was about all Bahia and Dallis.” Chappells were unhappy with the apparent misrepresentation claiming the hay was put up damp and was not the quality of feed he expected as a lot was not Bermuda. Chappells offered the testimony of the real estate agent involved who testified he believed the sale would not have closed had an agreement as to the easement and the hay not been reached, and that Chappells’ right to inspect the hay for count and quality was important to the sale. ¶6 At the conclusion of the trial, journal entry of judgment was entered April 8, 2009 granting judgment to the Chappells and against Young, expressly finding the contract to be “void” with both parties ordered to pay their own attorneys fees and Young ordered to remove the hay from Chappells’ property. The trial

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court decreed by record findings from the bench that the contract term allowed Chappells to count the bales and inspect the hay to see if it was satisfactory. The court further ruled from the bench, “There’s not going to be any judgments, any money judgments for either party. The contract or whatever the evidence was concerning that easement doesn’t have anything to do with it. The seven thousand dollar credit had to do with the sale of the hay, when the sale of the hay goes down the tubes so does the seven thousand dollar credit.” The trial court further ordered from the bench as a part of the judgment, the hay needed to be removed within ten days. Young’s appeal followed. Chappells did not appeal any trial court rulings, particularly as it relates to his $7,000 hay prepayment. STANDARD OF REVIEW ¶7 The findings of a trial court sitting without a jury in a case of legal cognizance are to be given on review the same weight as that which would be accorded the verdict of a wellinstructed jury. Sides v. John Cordes, Inc., 1999 OK 36, ¶16, 981 P.2d 301,307. If there is any evidence tending to support the findings and judgment of the trial court at a bench trial of a law case, the findings and judgment will not be disturbed, even if the record might support a contrary conclusion. Id. The credibility of witnesses and the effect of and weight given to their testimony, as well as the resolution of conflicting or inconsistent testimony, are questions of fact to be determined by the trier. Id. ANALYSIS ¶8 On appeal, Young argues the contract is not void and is enforceable. An enforceable contract requires the parties’ “mutual consent, or a meeting of the minds” on all the essential terms of the contract. Beck v. Reynolds, 1995 OK 83, ¶11, 903 P.2d 317, 319; 15 O.S.2001 §§ 2 and 66. It is clear from the evidence this contract was drafted at the request of the parties to resolve issues that would allow the sale of the land to close. The interlineation sentence, “This contract is subject to a count and physical inspection by Buyer,” was unclear as to the party’s intentions and the trial court interpreted this term by considering competent extrinsic evidence. The evidence at trial supports a reasonable inference that resolution of the hay and easement issue was critical to both parties to close the sale and both signed this agreement and initialed the interlineation. CompeVol. 81 — No. 24 — 9/11/2010

tent evidence supports the trial court’s interpretation that if the hay did not meet the standards of quality and type as represented, it could be rejected. There were no qualifying terms. Any other interpretation would mean the interlineation term had no meaning. Therefore, Young agreed to this contract term to induce Chappells to close the sale. Chappells had the right to inspect, count and reject the hay. ¶9 However, we agree this contract was not “void.” “A contract procured through misrepresentation can be either void or voidable, depending on the nature of the misrepresentation.” Harkrider v. Posey, 2000 OK 94, ¶11, 24 P.3d 821, 826. Where a contract is entered into on the basis of a misrepresentation which deceives one of the parties as to the true nature of the proposed agreement, the purported contract is rendered void. Id., 24 P.3d 826-827. No legal rights are created and either (or any) party may ignore the purported contract at his pleasure, to the extent it remains executory. Id. On the other hand, where a contract is entered into on the basis of a misrepresentation which goes to the contract’s inducement, as a notion distinct from its nature, a tainted agreement is rendered merely voidable. Fraud in the inducement is defined as a misrepresentation as to the terms, quality or other aspects of a contractual relation, venture or other transaction that leads a person to agree to enter into the transaction with a false impression or understanding of the risk, duties or obligation she has undertaken. Id. A contract voidable for fraud in the inducement creates a valid contractual relationship, which subsists in contemplation of law until the parties are relieved of their obligation by a decree of rescission. Id. ¶10 Competent evidence supports the trial court finding Young agreed to the unqualified interlineation term making certain representations to Chappells as to number, type and quality of the hay to induce closing of the land sale. Based on this evidence and Harkrider, the parties’ contract was not void and is enforceable. Benham v. Keller, 1983 OK 68, ¶5,673 P.2d 152, 154. AFFIRMED BUETTNER, P.J., and HANSEN, J., concur. 1 The record is not really clear as to initially whether Young wanted to sell the hay or Chappells wanted to buy the hay.

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2010 OK CIV APP 78 JAMES LAWSON, d/b/a AAA LAWSONSIRMON BAIL BONDS, LLC, Plaintiff/ Appellant, vs. BRUCE CURNUTT, IN HIS OFFICIAL CAPACITY AS SHERIFF OF LEFLORE COUNTY, OKLAHOMA, AND THE LEFLORE COUNTY SHERIFF’S OFFICE, BRUCE CURNUTT, SHERIFF, Defendants/Appellees. Case No. 107,578. May 21, 2010 APPEAL FROM THE DISTRICT COURT OF LEFLORE COUNTY, OKLAHOMA HONORABLE TED A. KNIGHT, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART AND REMANDED Deborah A. Reheard, S. Stephen Barnes, REHEARD LAW OFFICE, Eufaula, Oklahoma, for Plaintiff/Appellant, Jeffery C. Smith, OFFICE OF THE DISTRICT ATTORNEY, Poteau, Oklahoma, for Defendants/Appellees. Wm. C. Hetherington, Jr., Judge: �¶1 James Lawson, d/b/a AAA LawsonSirmon Bail Bonds, LLC, (Lawson), appeals by accelerated appeal process an August 27, 2009 Order which granted, in part, a motion to dismiss filed by Bruce Curnutt, in his official capacity as the Sheriff of LeFlore County, Oklahoma, and the LeFlore County Sheriff’s Office, Bruce Curnutt, Sheriff (Sheriff). Lawson raises two issues: (1) whether the trial court erred in denying declaratory or injunctive relief1 for Sheriff’s violation of the Open Records Act, 51 O.S.2001 � §24A.1, et seq., by failing to allow inspection of bench warrant information,2 and, (2) whether the trial court erred by finding Lawson’s cause of action moot when requested bench warrant information was provided after suit was filed, as attachments to Sheriff’s motion to dismiss. We affirm in part, reverse in part, and remand. BACKGROUND �¶2 Lawson is a licensed bail bondsmen who, on June 4, 2009, made two requests for bench warrant information on individuals for whom he had posted bond. His first request was made by phone, and a Sheriff’s employee advised they could not give that information over the phone. Lawson then went in person to 1972

the Sheriff’s office requesting the same information. The “dispatcher” advised Lawson there was an active warrant, but when Lawson requested to inspect the warrant, he was advised to get a copy of the warrant from the court clerk’s office. Lawson later returned to the Sheriff’s office requesting to see information on another warrant. Sheriff Curnutt came to the dispatch area and advised Lawson he was not dealing with him anymore and denied his requests. The record indicates telephone requests by others for the same type of information were honored and the records Lawson requested were not a part of any law enforcement investigative file. �¶3 Lawson filed suit on June 8, 2009. On June 29th, Sheriff filed a motion to dismiss based upon a failure to state a claim for which relief could be granted and attached as an exhibit copies of certified mail postmarked June 26, 2009. The June 26, 2009 certified mail included photocopies of April 17, 2009 and June 1, 2009 bench warrants for the arrest for failure to appear for two of Lawson’s clients, the information he had requested on June 4, 2009, but had failed to obtain prior to filing suit. STANDARD OF REVIEW �¶4 Appellate review of a trial court order dismissing a case for failure to state a claim upon which relief can be granted is de novo. Fanning v. Brown, 2004 OK 7, 85 P.3d 841. Reviewing a motion to dismiss to determine whether a petition is legally sufficient requires the appellate court to take as true all of the challenged pleading’s allegations and all reasonable inferences which may be drawn from them. Id. �¶5 “A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the plaintiff can prove no set of facts which would entitle him or her to relief.” Frazier v. Bryan Memorial Hospital Authority, 1989 OK 73, ¶13, 775 P.2d 281, 287. If relief is possible under any set of facts which can be established and is consistent with the allegations, a motion to dismiss should be denied. Id. The party moving for dismissal pursuant to 12 O.S.2001 § 2012(B)(6) has the burden to show the legal insufficiency of the petition. Indiana National Bank v. State of Oklahoma, Department of Human Services, 1994 OK 98, 880 P.2d 371.

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ANALYSIS ¶6 Lawson requested a judgment: “[r]equiring the Defendant to allow Plaintiff a reasonable opportunity to view, inspect, copy or mechanically reproduce documents of the LeFlore County Sheriff’s Office, LeFlore County, Oklahoma.” He presents no argument that his request was not moot following the production of the warrants as attachments, at least to the extent he requested a mandamus order to produce these particular warrants. Section 24A.17 of Title 51 does not provide for future nonspecific, broad orders for compliance. To the extent this relief requests such an order for prospective compliance, the dismissal order below is AFFIRMED. ¶7 The crux of Lawson’s argument is that his declarative claim was not mooted by Sheriff’s production of the warrant information in the motion to dismiss. Lawson argues he was entitled to hearing and determination of declarative relief as stated in his relief request requesting a judgment: Declaring the Open Records Policy as adopted by Bruce Curnutt in his official capacity as Sheriff of LeFlore County, Oklahoma and the LeFlore County Sheriff’s Office, LeFlore County, Oklahoma, to be a violation of the Oklahoma Open Records Act as set out in Oklahoma statutes, Title 51 § 24 A.1 et seq. and the said policy should be set aside and abolished. This claim is a sufficiently stated cognizable claim for relief. The facts surrounding Lawson’s requests and litigation timing are not in relevant dispute. The appeal issues therefore turn strictly on the language found in � § 24A.8(A)(6) and § 24A.17(B) of the Oklahoma Open Records Act. Section 24A.8(A)(6) clearly provides “[l]aw enforcement agencies shall make available for public inspection, if kept,” the records showing the “[d]isposition of all warrants, including orders signed by a Judge of any court commanding a law enforcement officer to arrest a particular person.” (Emphasis added.) Lawson made the requests pursuant to this statute and Sheriff did not honor them. ¶8 Lawson then brought civil suit for declarative and injunctive relief under §� 24A.17(B)(1) which allows “[a]ny person denied access to records” to”bring a civil suit for declarative or injunctive relief, or both, but such civil suit shall be limited to records requested and denied prior to filing of the civil suit” and Vol. 81 — No. 24 — 9/11/2010

provides, if the party is successful, for reasonable attorney fees, � § 24A.17(B)(2). The record clearly shows Lawson made his requests prior to filing civil suit and it is “well-settled” the statutory wording shall connotes a mandatory duty. TIB Corporation v. Edmondson, 1981 OK 76, � ¶4, 630 P.2d 1296, 1297. The declarative issues were not mooted by the motion to dismiss attachments. Lawson is entitled to a trial on his declarative relief, Sheriff’s defenses thereto, and determination of damages, plus an attorney fee if successful. ¶9 The order granting the motion to dismiss is AFFIRMED IN PART, REVERSED IN PART AND REMANDED. BUETTNER, P.J., and HANSEN, J., concur. 1. Lawson sought relief pursuant to 51 O.S.Supp.2005 � 24A.17(B): Any person denied access to records of a public body or public official: 1. May bring a civil suit for declarative or injunctive relief, or both, but such civil suit shall be limited to records requested and denied prior to filing of the civil suit; and 2. If successful, shall be entitled to reasonable attorney fees. 2. Law enforcement agencies are required to make available for public inspection, if such records are kept, “[d]isposition of all warrants, including orders signed by a judge of any court commanding a law enforcement officer to arrest a particular person.” 51 O.S.Supp.2006 § 24A.8(A)(6).

2010 OK CIV APP 75 GERALD A. AMUNDSEN, II, and DAWN AMUNDSEN, Plaintiffs/Appellees, vs. J. WRIGHT d/b/a J. WRIGHT HOMES, LLC, and JOHN L. WRIGHT, personally and individually, Defendants/Appellants, and NORTHWEST BUILDING SUPPLY, INC., WALLACE MECHANICAL, LLC, ROBERT S. WALLACE, personally and individually, and BRAD FLEENOR, personally and individually, Defendants. Case No. 106,924. June 23, 2010 APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, OKLAHOMA HONORABLE EDWARD C. CUNNINGHAM, TRIAL JUDGE AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS Michael D. Denton, Jr., DENTON LAW FIRM, Mustang, Oklahoma, for Plaintiffs/Appellees Jack S. Dawson, Joseph H. Rogers, III, Carri A. Remillard, MILLER DOLLARHIDE, P.C., Oklahoma City, Oklahoma, for Defendants/ Appellants DEBORAH B. BARNES, JUDGE:

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¶1 Defendants/Appellants J. Wright d/b/a J. Wright Homes, LLC, and John L. Wright, personally and individually, (Builders) appeal from the Journal Entry of Judgment filed on January 16, 2009,1 in which the trial court overruled their Motion to Compel Arbitration. The issues on appeal arise out of the parties’ agreement in their Residential Construction Agreement to submit any and all disputes to binding arbitration pursuant to specific procedures that turned out not to exist. Because the parties only agreed to arbitrate pursuant to specific, but non-existent, procedures, we find that, under the circumstances of this case, arbitration cannot be compelled. Therefore, we find the trial court did not err in overruling the Motion to Compel Arbitration and we affirm the trial court’s January 16, 2009, Journal Entry of Judgment. We remand this case to the trial court for further proceedings. FACTS ¶2 A dispute arose between the parties regarding the construction of a home in Canadian County, Oklahoma. Plaintiffs/Appellees Gerald A. Amundsen, II, and Dawn Amundsen (Buyers) filed a Petition against Builders and other defendants in the District Court of Canadian County. Builders responded by filing a Motion to Compel Arbitration. Builders seek to compel arbitration with Buyers based upon certain language found in Clause 10 of the parties’ Residential Construction Agreement (the Agreement).2 The pertinent language in the Agreement states: 10. Arbitration of Disputes. Any and all claims, disputes and controversies of every kind and nature between the Parties to this Agreement . . . shall be submitted to binding arbitration pursuant to the procedures established and maintained by the Central Oklahoma HomeBuilder’s (sic) Association. Subject to the foregoing obligations to arbitrate all disputes between the parties hereto, the Parties may elect to proceed with other alternative dispute resolution means, including conciliation and/or mediation. The Parties hereby stipulate and agree that the provisions of this section shall be a complete defense to any suit, action or proceeding instituted in any . . . state or local court . . . with respect to any controversy, dispute or claim arbitrable as set forth herein.3 1974

¶3 However, “the Central Oklahoma HomeBuilder’s (sic) Association” does not have, and has never had, procedures established for arbitration. In other words, “the arbitration procedures referenced in the contract do not exist.”4 Based on the reasons set forth below,5 we affirm the trial court’s Journal Entry of Judgment overruling Builders’ Motion to Compel Arbitration, and remand for further proceedings. STANDARD OF REVIEW ¶4 “We review an order granting or denying a motion to compel arbitration de novo,6 the same standard of review employed by the trial court.” Thompson v. Bar-S Foods Co., 2007 OK 75, ¶ 9, 174 P.3d 567, 572 (citations omitted). “Arbitration should be compelled unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Id. (citation omitted). ¶5 “The interpretation of an arbitration agreement is governed by general state-law principles of contract interpretation.” Id. at ¶ 18 (internal quotations and citation omitted). “The purpose of construing an instrument is to divine from its text the intent of the parties. Unless there is an ambiguity, that intent must be gathered solely from the four corners of the instrument.” Cleary Petroleum Corp. v. Harrison, 1980 OK 188, ¶ 8, 621 P.2d 528, 532 (footnote omitted). ANALYSIS I. Removal of Certain Contract Language ¶6 Builders argue that the procedures for arbitration set forth in Clause 10 of the Agreement are “secondary and not central.”7 They argue that, therefore, the language — “pursuant to the procedures established and maintained by the Central Oklahoma HomeBuilder’s (sic) Association” — should be removed from the Agreement in order to express the parties’ central intent: to arbitrate “[a]ny and all claims, disputes and controversies . . . .” The arbitration procedures found in “the Uniform Arbitration Act, 12 O.S. § 1851, et seq.” should then be applied.8 ¶7 In support, Builders cite to 15 O.S.2001 §§ 166, 168, and 169, which state, respectively, that “[p]articular clauses of a contract are subordinate to its general intent,” and “[r]epugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect

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to the repugnant clause, subordinate to the general intent and purposes of the whole contract,” and “[w]ords in a contract which are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected.” However, as stated above, the language Builders would have us strike, and the language Builders argue represents the central intent of the parties to arbitrate, are not separate and contradictory. Rather, they are contained in the same, unambiguous sentence that sets forth one clear and explicit intent: that “[a]ny and all claims, disputes and controversies of every kind and nature between the Parties to this Agreement . . . shall be submitted to binding arbitration pursuant to the procedures established and maintained by the Central Oklahoma HomeBuilder’s (sic) Association.” We agree with Builders that when interpreting a contract, this Court must give effect to the mutual intent of the parties. 15 O.S.2001 § 152. However, “[t]he purpose of construing an instrument is to divine from its text the intent of the parties. Unless there is an ambiguity, that intent must be gathered solely from the four corners of the instrument.” Cleary Petroleum Corp. v. Harrison, 1980 OK 188, ¶ 8, 621 P.2d 528, 532 (emphasis added, footnote omitted). We reject Builders’ argument that certain language should be removed from this unambiguous sentence to reconcile a “repugnancy,” or to fix an inconsistency. We also reject Builders’ argument that certain language should be removed from this sentence because it is “secondary and not central” — especially where, as here, the removal of that language would completely change the meaning of the sentence to incorporate any and all arbitration procedures rather than one specific set of procedures. Although the arbitration procedures referred to turned out not to exist, the language is clear and unambiguous, and, from the four corners of the Agreement, it does not contain an inconsistency. “The fairness or unfairness, folly or wisdom, or inequality of contracts are questions exclusively within the rights of the parties to adjust at the time the contract is made.” Barnes v. Helfenbein, 1976 OK 33, ¶ 26, 548 P.2d 1014, 1021 (emphasis added). ¶8 Builders also cite to 12 O.S. Supp. 2005 § 1862 of the Oklahoma Uniform Arbitration Act (OUAA), which states, in part, that “[i]f the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, that method must be followed, unless the method fails. If . . . the agreed method fails . . . the court, on Vol. 81 — No. 24 — 9/11/2010

motion of a party to the arbitration proceeding, shall appoint the arbitrator.” Builders argue, pursuant to this statute, that the trial court should appoint an arbitrator and that arbitration should then proceed pursuant to the OUAA because the arbitration procedures agreed upon by the parties have failed. ¶9 We first note that Clause 15 of the Agreement provides that it shall “be governed, construed and interpreted in accordance with the laws of the State of Oklahoma . . . .” Therefore, the OUAA governs the Agreement. Sooner Builders & Investments, Inc. v. Nolan Hatcher Construction Services, Inc., 2007 OK 50, ¶ 22, 164 P.3d 1063, 1070. “The primary purpose of . . . the OUAA is to ensure that private agreements to arbitrate are enforced according to their terms.” Coulter v. First American Resources, L.L.C., 2009 OK 53, ¶ 8, 214 P.3d 807, 809. It is the court’s “authority to prevent arbitration on terms other than those on which the parties agreed.” Id. at ¶ 7. “In cases of uncertainty . . . the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” 15 O.S.2001 § 170. Builders drafted the Agreement (entitled “Residential Construction Agreement”), and Builders, as the drafters, are presumed to have caused the uncertainty to exist. Therefore, we interpret the language of the Agreement most strongly against Builders. ¶10 Title 12 O.S. Supp. 2005 § 1862 mandates that the court appoint an arbitrator where the agreed “method for appointing an arbitrator” has failed. Here, however, the parties have agreed not simply on the method for appointing an arbitrator, but they have agreed upon the specific procedures to be followed. Under these circumstances, if the court were to appoint an arbitrator and to order arbitration pursuant to the procedures set forth in the OUAA, not only would the parties’ intent regarding their choice of arbitrator be violated, but the parties’ intent regarding the specific procedures to be followed would also be violated. Because the OUAA does not grant the courts the power to violate the intent of the parties regarding their specific choice of arbitration procedures, we reject Builders’ argument that § 1862 controls the disposition of this matter. Pursuant to Oklahoma law, arbitration may be initiated only under the procedures designated by the parties in the Agreement. ¶11 Builders argue, finally, that there was a mutual mistake and that the trial court should

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have resolved this mutual mistake by striking the arbitration procedures chosen by the parties rather than by striking the entire arbitration clause. Mutual mistake is pertinent to the remedy of reformation. Reformation is a remedy to “conform a written contract to the parties’ antecedent agreement” when the written contract “differs from the antecedent expressions on which the parties based their agreement.” Oklahoma Oncology & Hematology P.C. v. U.S. Oncology, Inc., 2007 OK 12, ¶ 29 n.22, 160 P.3d 936, 947 n.22. Builders do not cite to 15 O.S.2001 § 156 or to any case law that supports an argument for reformation of the Agreement based on a mutual mistake of the parties.9 Nevertheless, to obtain reformation, Builders would have to show, by clear and convincing evidence, a mutual mistake that resulted in an instrument that does not reflect what either party intended. Thompson v. Estate of Coffield, 1995 OK 16, ¶ 10, 894 P.2d 1065, 1067-68.10 Not only do Builders fail to set forth any law to support such an argument, they fail to assert that the language — “pursuant to the procedures established and maintained by the Central Oklahoma HomeBuilder’s (sic) Association” — was set forth in the Agreement as a result of a mutual mistake. Instead, Builders state that the procedures set forth in the Agreement were “the parties’ agreed method . . . .”11 The only “mistake” was “that neither party bothered to actually contact the association” to discover whether it had arbitration procedures.12 Because the Agreement does not differ from the antecedent expressions on which the parties based their agreement, reformation is not available. Once more, “[t]he fairness or unfairness, folly or wisdom, or inequality of contracts are questions exclusively within the rights of the parties to adjust at the time the contract is made.” Barnes v. Helfenbein, 1976 OK 33, ¶ 26, 548 P.2d 1014, 1021. Although “[r]eformation corrects a mistake between the written document and the actual intent of the contracting parties,” it will not “rewrite” a contract simply because it has become less favorable to one party. Oklahoma Oncology & Hematology P.C., at n.22, 160 P.3d at n.22. ¶12 The intent of the parties is clear and unambiguous. We reach this conclusion “without narrowly concentrating upon some clause or language taken out of context.” Mercury Investment Co. v. F. W. Woolworth Co., 1985 OK 38, ¶ 9, 706 P.2d 523, 529. The parties agreed to arbitrate only pursuant to specific procedures established and maintained by the “Central 1976

Oklahoma HomeBuilders (sic) Association.” The fact that those procedures did not exist prevented the parties from contracting with respect to that issue. Thompson v. Bar-S Foods Co., 2007 OK 75, ¶ 33, 174 P.3d 567, 577. “The law will not make a better contract than the parties themselves have seen fit to enter into, or alter it for the benefit of one party to the detriment of another.” King-Stevenson Gas & Oil Co. v. Texam Oil Corp., 1970 OK 45, ¶ 25, 466 P.2d 950, 954 (citation omitted). “The courts will enforce arbitration agreements according to the terms of the parties’ contract, as ‘[a]rbitration is a matter of consent, not coercion.’” Oklahoma Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12, ¶ 22, 160 P.3d 936, 944. II. The Arbitration Procedures Referenced in the Agreement Do Not Exist ¶13 In determining whether arbitration may be nevertheless compelled when the arbitration procedures referenced in the contract do not exist, we are guided by the rationale employed by the Oklahoma Supreme Court in The Pentagon Academy, Inc. v. Independent School District No. 1 of Tulsa County, Oklahoma, 2003 OK 98, 82 P.3d 587. In Pentagon, an unsuccessful charter school applicant sought to compel a school district to submit to binding arbitration on its application. At the time, title 70, § 3134(F) of the Charter Schools Act provided that when an application to establish a charter school is rejected by a board of education, the unsuccessful applicant may proceed to binding arbitration as provided in the Dispute Resolution Act and the rules promulgated pursuant thereto. However, the Dispute Resolution Act, which § 3-134(F) incorporated by reference, did not authorize binding arbitration, nor had any rules for arbitration been promulgated pursuant thereto. The Court stated that, with one insignificant exception, the provisions of the Dispute Resolution Act made no mention of arbitration, and it did not provide for arbitration as a means of resolving disputes, nor did it establish rules and procedures for its implementation. The Court found that “[t]he silence of the Dispute Resolution Act on the subject of provisions governing binding arbitration leaves no room for this Court to add language and change the meaning of the statutes. . . . Relying on its provisions as authority for compulsory binding arbitration is, as was determined by the trial court, legally impossible.” Id. at ¶ 18.

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¶14 Although we are confronted with an issue of contract interpretation, and the Court in Pentagon was confronted with an issue of statutory interpretation, we find its logic to be persuasive. As in Pentagon, the procedures for arbitration referenced in the Agreement do not exist. The Agreement clearly states in one, unambiguous sentence that “[a]ny and all claims, disputes and controversies of every kind and nature between the Parties to this Agreement . . . shall be submitted to binding arbitration pursuant to the procedures established and maintained by the Central Oklahoma HomeBuilder’s (sic) Association.” Because there are no such procedures, we find that reliance on this provision of the Agreement as authority for compulsory arbitration is legally impossible. ¶15 The parties’ agreement to arbitrate contains one object: that “[a]ny and all claims, disputes and controversies of every kind and nature between the Parties to this Agreement . . . shall be submitted to binding arbitration pursuant to the procedures established and maintained by the Central Oklahoma HomeBuilder’s (sic) Association.” Because the procedures chosen by the parties do not exist and never existed, performance pursuant to the arbitration clause in the Agreement is impossible.13 However, this impossibility does not dissolve the remainder of the Agreement. The Restatement (First) of Contracts, § 463 (1932), states as follows: Where impossibility of performing part of the performance promised by a party to a bargain is of such character that if it related to the entire performance it would prevent the imposition of a duty or would discharge a duty that had arisen, and the remainder of the performance is not made materially more difficult or disadvantageous than it would have been if there had been no impossibility, the existence of duty is affected only as to that part; and if performance of the whole contract is possible with only an unsubstantial variation, the promisor is under a duty to render performance with that variation. “[I]mpossibility of performing part of a promise rarely discharges a promisor beyond the extent of the impossibilty.” Restatement (First) of Contracts, § 463, comment b (1932). See also 84 A.L.R.2d 12, § 14(b). This rule is mirrored in the Restatement (Second) of Contracts, § 270 (1981), which states as follows: Vol. 81 — No. 24 — 9/11/2010

Where only part of an obligor’s performance is impracticable, his duty to render the remaining part is unaffected if (a) it is still practicable for him to render performance that is substantial, taking account of any reasonable substitute performance that he is under a duty to render . . . . ¶16 Although performance pursuant to the arbitration clause in the Agreement is impossible because the procedures chosen by the parties do not exist, we find that this does not make Builders’ performance pursuant to the Agreement materially more difficult or disadvantageous than it would have been if there had been no such impossibility. We find that it is still practicable for Builders to render performance pursuant to the Agreement that is substantial, despite the impossibility of arbitrating disputes. ¶17 As in Pentagon, Builders’ Motion to Compel must be overruled because it is legally impossible to arbitrate pursuant to nonexistent procedures, and ordering arbitration pursuant to some other set of procedures would violate the unambiguous intent of the parties as expressed in the Agreement. The remainder of the Agreement is not dissolved due to this impossibility. CONCLUSION ¶18 Based on our review of the record and applicable law, we affirm the trial court’s Journal Entry of Judgment overruling Builders’ Motion to Compel Arbitration and remand this case to the trial court for further proceedings. ¶19 AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS. WISEMAN, C.J., and FISCHER, P.J., concur. 1. Builders did not file their Petition in Error until March 25, 2009, more than 30 days after the trial court’s Journal Entry of Judgment. See 12 O.S. Supp. 2002 § 990A (“[a]n 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 . . . is filed with the clerk of the trial court”). However, Builders assert in the Petition in Error that Plaintiffs/Appellees, Gerald A. Amundsen, II, and Dawn Amundsen, drafted the Journal Entry of Judgment but did not serve Builders with a filed-stamped copy until February 24, 2009. We review this appeal as timely pursuant to the March 27, 2009, Order of the Oklahoma Supreme Court, which states: Based upon the representation in the petition in error that the [Builders] did not have notice of the filing of the January 16, 2009 order until February 24, 2009, this appeal appears to be timely commenced and shall proceed. 12 O.S. § 990A. 2. The Agreement was signed by Builders (i.e., by J. Wright Homes, LLC’s “Member/Manager,” John L. Wright) and Buyers and is dated March 28, 2005. Record (R.), pp. 11-18. 3. R., p. 14.

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4. R., p. 41; Builders’ Brief-in-chief, p. 5. The trial court found in its Journal Entry of Judgment “[t]hat the Central Oklahoma Home Builders’ Association does not have any established arbitration procedures,” and Builders do not contest this finding on appeal. Rather, this fact is stipulated by the parties in their appellate briefs. 5. “An appellate court has a common-law duty to affirm a trial judge’s decision if it can be supported by any applicable legal theory.” Nichols v. Nichols, 2009 OK 43, ¶ 10, 222 P.3d 1049, 1054 (footnote omitted). “If legally correct, a trial court’s ruling will not be reversed because of its faulty reasoning, erroneous finding of fact or its consideration of an immaterial issue.” Id. at n.14 (citations omitted). 6. By de novo review, we mean this Court claims for itself plenary, independent, and non-deferential authority to reexamine a trial court’s legal rulings. Kluver v. Weatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081. 7. Builders’ Brief-in-chief, p. 5. In Builders’ Reply in the court below, they argued that “[t]he method of the arbitration is simply secondary and of little concern.” R., p. 33. 8. Builders’ Brief-in-chief, p. 5. 9. On appeal, a presumption is indulged that the ruling of the trial court was correct. John Deere Plow Co. v. Owens, 1943 OK 284, ¶ 25, 147 P.2d 149, 154. “The general rule is that this court does not decide a cause on appeal on a theory not presented to the court below nor on one that is not argued in the briefs in this court.” Id. at ¶ 19. The reviewing court will not search the record for some error on which to reverse the trial court. Gaines Brothers Co. v. Phillips, 1944 OK 254, ¶ 11, 151 P.2d 933, 935. “[T]he rule [is] that even where plausible argument is submitted in the brief[,] if unsupported by citation of authorities it will not overcome the presumption indulged in favor of the judgment.” Id. “Argument without supporting authority will not be considered.” Rule 1.11(k)(1), Oklahoma Supreme Court Rules, 12 O.S.2001, ch. 15, app. 1. 10. Reformation may also be obtained by showing mistake by one party and inequitable conduct on the part of the other, or by showing fraud, but these possibilities are irrelevant to this case. 11. Builders’ Brief-in-chief, p. 6. 12. Id. at p. 5. 13. “It is now well settled that where the existence of a specific thing is necessary for the performance of a contract, the accidental destruction or nonexistence of that thing excuses the promisor, unless he has assumed by his contract the risk of its existence.” Kansas, Oklahoma & Gulf Railway Co. v. Grand Lake Grain Co., 1967 OK 170, ¶ 19, 434 P.2d 153, 158 (quoting 6 Williston, Contracts (rev. ed.) § 1946). “If the existence of a specific thing is necessary for the performance of a duty, its failure to come into existence . . . as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the contract was made.” Restatement (Second) of Contracts, § 263 (1981).

2010 OK CIV APP 81 WALBERT D. BOELMAN, Petitioner, vs, CONTRACTOR SERVICES, INC. and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 107,107. June 29, 2010 PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT HONORABLE WILLIAM R. FOSTER, TRIAL JUDGE VACATED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Richard A. Bell, Heather A. Lehman, THE BELL LAW FIRM, Norman, Oklahoma, for Petitioner 1978

Greg K. Ballard, Cara A. Lowe, FENTON, FENTON, SMITH, RENEAU & MOON, Oklahoma City, Oklahoma, for Respondents KEITH RAPP, JUDGE: ¶1 Claimant, Walbert D. Boelman, appeals an order of a three-judge panel affirming in part and modifying in part the workers’ compensation trial court’s order. BACKGROUND ¶2 Claimant sustained a single-event injury on February 13, 2001. He filed a Form 3 on April 6, 2001, alleging an injury to his back. He subsequently amended his Form 3 on two occasions, alleging injury to his left hip/leg, psychological overlay, and consequential injury to his lungs. Claimant underwent medical treatment, including three back surgeries and one hip surgery, over an extensive period of time. ¶3 On January 12, 2009, the workers’ compensation trial court conducted a hearing on the issues of permanent partial disability (PPD) benefits, permanent total disability (PTD) benefits, and medical maintenance. Employer stipulated that Claimant sustained a work-related injury, but denied that Claimant sustained an injury to his left leg and psychological overlay. Employer also denied Claimant was permanently totally disabled. The parties agreed to commute 25% of the permanent partial disability award to be paid. ¶4 After the hearing, the trial court entered an Order Determining Compensability and Awarding Permanent Partial Disability Benefits, filed on February 12, 2009. The trial court found Claimant had sustained a work-related injury to the “LOW BACK, LEFT HIP and LEFT LEG with consequential PSYCHOLOGICAL OVERLAY (including DEPRESSION and SEXUAL DYSFUNCTION)” on February 13, 2001. The trial court also found Claimant sustained permanent partial disability totaling 100%. The court commuted 25% of the permanent partial disability award to a lump sum and ordered the remainder of the PPD award to be paid out. In addition to finding Claimant PPD, the workers’ compensation trial court found Claimant was permanently and totally disabled. The court ordered that payment of permanent total disability benefits begin upon completion of payment of the PPD benefits. The court also ordered Employer to provide Claimant with continuing medical care, in the

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nature of prescription medication and four annual office visits with Dr. A. E. Moorad.

ing of permanent total disability and permanent partial disability.

¶5 The workers’ compensation court also awarded Claimant’s attorney an attorney’s fee award of $37,840.00, based on the PTD award. On February 20, 2009, the trial court filed a Supplemental Order awarding Claimant’s attorney another attorney’s fee award in the amount of $24,648.00, based upon the PPD award.

The facts in this case are distinguishable from those cited in the concurring opinion. In this case, the worker was awarded permanent partial disability and permanent total disability at the same time. Due to other health concerns, worker elected to draw permanent partial disability in order to receive a lump sum. Thereafter, he would draw permanent total disability if he lived to draw the same.

¶6 Employer appealed both the February 12, 2009, and February 20, 2009, orders to a threejudge panel. A three-judge panel conducted a hearing on the issues raised on appeal, primarily whether Claimant was entitled to an award of both permanent partial disability and permanent total disability for a single-event injury. ¶7 The three-judge panel entered its Order on Appeal Affirming in Part and Modifying in Part the Decision of the Trial Court, filed on April 30, 2009. The three-judge panel found Claimant was permanently totally disabled and vacated the trial court’s award of permanent partial disability benefits. The three-judge panel deleted all paragraphs of the trial court’s order relating to the permanent partial disability award. In addition, the three-judge panel vacated the Supplemental Order awarding Claimant’s counsel additional attorney’s fees. ¶8 One of the judges on the panel wrote a concurring opinion stating: The trial judge’s order finds the claimant has sustained permanent partial disability and permanent total disability as a result of his February 21, 2001 injury. 85 O.S. §3(21) defines permanent partial disability as “permanent disability which is less than total and shall be equal to or the same as permanent impairment.” If an injured worker is permanently, totally disabled as claimant is in this case, permanent partial disability is precluded. Roberts v. Matrix Services, Inc., 1993 OK 148, 863 P.2d 1242. One judge concurred-in-result. The third judge on the panel dissented, stating: I would have affirmed Judge Foster’s order finding that permanent partial disability and permanent total disability can and should have been awarded concurrently. I note that insurance companies charge premiums for the potential awardVol. 81 — No. 24 — 9/11/2010

Claimant appeals the three-judge panel’s order affirming in part and modifying in part the trial court’s decision. ANALYSIS ¶9 Claimant’s primary argument on appeal is that the three-judge panel erred in vacating the trial court’s award of permanent partial disability. Claimant argues that it was not error for the workers’ compensation trial court to award Claimant both 100% permanent partial disability benefits and permanent total disability benefits for a single injury. ¶10 Before this Court can reach this issue, this Court must determine whether there is an appealable order. Here, the three-judge panel Order on Appeal Affirming in Part and Modifying in Part the Decision of the Trial Court consists of a concurring opinion, in which the judge writes an explanation of his vote, a concur-in-result vote, with no written explanation, and a dissenting vote, with a written explanation of the dissent. ¶11 The three-judge panel of the workers’ compensation court is required to issue a decision approved by a majority of the panel. Title 85 O.S.2001, § 3.6(A) provides in pertinent part: Upon completion of the appeal, the members of the Court sitting en banc shall issue such order, decision or award as is proper, just and equitable. Only those members participating in the hearing on appeal shall participate in the making of the order, decision or award. All orders, decisions or awards shall be approved by a majority of the members of the Court sitting en banc. (Emphasis added.) The question presented is what constitutes a “majority of the members of the Court sitting en banc.” In other words, does Section 3.6 require a majority approval of the result of the

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three-judge panel or of the findings and analysis made by the panel? ¶12 The Workers’ Compensation Act does not elaborate on the requirements or meaning of Section 3.6. However, Black’s Law Dictionary 860 (5th ed.1979), defines “majority” as follows: The greater number. The number greater than half of any total. Black’s Law Dictionary also defines “approve” as follows: To be satisfied with; to confirm, ratify, sanction or consent to some act or thing done by another. To sanction officially; to ratify; to confirm; to pronounce good; think or judge well of; admit the propriety or excellence of; be pleased with. Black’s Law Dictionary 94 (5th ed. 1979). ¶13 The Oklahoma courts have not specifically addressed the issue of whether a vote of a three-judge panel requires at least two concurrences to constitute a majority vote per Title 85 O.S.2001, § 3.6. However, in Carl B. King Drilling Co. v. Farley, 1932 OK 96, 7 P.2d 862, the Oklahoma Supreme Court addressed the issue of whether one judge of a workers’ compensation three-judge panel can invalidate an award of benefits made by a majority vote of the panel. In Farley, the statute in effect provided: [T]he award, decision or order of a Commissioner, when approved and confirmed by the Commission, and ordered filed in its office shall be deemed to be the award, decision or order of the Commission. Okla. Compiled Stat. 1921 § 7316. ¶14 The Farley court concluded that one member of the commission had the authority to make orders concerning matters in which he presided, but the decision did not become final until the same was approved by a majority of the members of the State Industrial Commission and their vote recorded per Section 7316. The Court elaborated: The commission acts as a body and not as individuals. The concurrence of a majority of the members of the commission is necessary for a legal and binding order or award of the commission, and, where an order is made which order is not approved or concurred in by more than one member of the commission attempting to vacate or set aside a valid award previously made by the 1980

members of the State Industrial Commission the order of said member attempting to vacate the previous valid award is of no force and effect until approved by a majority of the members of the commission. Id., 1932 OK 96 at ¶ 17, 7 P.2d at 864. ¶15 The statutory language requiring a majority vote by the three-judge panel is similar to the language requiring a majority of the Oklahoma Supreme Court to decide a question. Article VII of the Oklahoma Constitution provides, in part: § 5. Sessions — Quorum — Intermediate appellate courts — Form of decisions — Clerk of Supreme Court. A majority of the members of the Supreme Court shall constitute a quorum and the concurrence of the majority of said Court shall be necessary to decide any question. Okla. Const. art. 7, § 5. ¶16 In explaining this requirement, the Oklahoma Supreme Court elaborated: Under art. 7, §5 of the Oklahoma Constitution, the concurrence of the majority of the Justices is necessary to decide any question. Because the Oklahoma Supreme Court is composed of nine members, an opinion must receive at least five votes. . . . Concurring and concurring specially votes are treated as a full concurrence and may be counted in obtaining a majority vote. Concurring-in-result and concurring-injudgment votes may not be counted as votes to form a majority opinion.1 ¶17 Under the rationale used by the Oklahoma Supreme Court in determining which votes may be used to form a majority opinion of the Supreme Court, the opinion of the threejudge panel in the present case would not meet the requirements of a majority vote. Thus, under Section 3.6, a panel decision composed of the authoring opinion, a concur-in-result vote, and a dissenting vote would not satisfy the requirements that the decision of the panel be approved by a majority of the panel. ¶18 This Court may also take guidance by decisions of other courts dealing with similar issues. In Aquilina v. General Motors Corp., 267 N.W.2d 923 (Mich. 1978), the Michigan Supreme Court addressed a similar situation. In Aquilina, the Court reviewed a decision of the five

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person Michigan Workers’ Compensation Appeal Board, in which one member authored the opinion, two members concurred-in-result without issuing a written opinion, one member dissented, and the final member concurred with the dissent. Id. at 924. One issue presented to the Michigan Supreme Court was: Does the Board fulfill its responsibility to find facts with finality when the controlling opinion is signed by less than a majority of the appeal board members assigned to decide the case, with the other members comprising the majority concurring only in the result? Id. at 925. The Michigan Supreme Court concluded the appeal board had not fulfilled its duty. Id. ¶19 In reviewing a statute similar to the Oklahoma statute applicable in the present case, the Michigan Court concluded it could not discharge their review responsibilities unless the Appeal Board properly articulated its findings of fact. The Court stated: [W]e cannot discharge our reviewing responsibilities unless a true majority reaches a decision based on stated facts. A decision is not properly reviewable when some of the majority concur only in the result and do not state the facts upon which that result is based. We must ask the board members to make a finding regarding all critical or crucial facts as well as the result when they choose not to sign the controlling opinion. Aquilina, 267 N.W.2d at 927. The Michigan Court vacated the Appeal Board’s decision and remanded to the Board for additional proceedings consistent with the opinion. Id. at 927. See also Hessell v. Chippewa Regional Correctional Facility, 2008 WL 2389497 (Mich. Ct. App. 2008)(Court concluded that the Panel’s decision must be vacated because it did not reflect a majority of the Panel. The Michigan statute, MCL 418.274(8) provided that “[t]he decision reached by a majority of the assigned 3 members of a panel shall be the final decision of the commission.” Relying on Aquilina, the appellate court concluded that a decision of a workers’ compensation three-judge panel in which one member issued an opinion, a second member concurred in the result, and third member concurred in the result based on the law of the case doctrine did not suffice as a majority decision as required by the statute. The court Vol. 81 — No. 24 — 9/11/2010

vacated and remanded the matter for additional findings of fact). ¶20 As in Aquilina, the Oklahoma Supreme Court has imposed the requirement that the Oklahoma workers’ compensation courts, both the trial court and a three-judge panel, state findings of facts responsive to the issues upon which an order is based. Dunkin v. Instaff Personnel, 2007 OK 51, ¶ 15, 164 P.3d 1057, 1061. It is incumbent that an order of the workers’ compensation trial court or a three-judge panel granting or denying workers’ compensation benefits “must provide the necessary elements for meaningful judicial review. It must be certain enough to (1) identify the legal theory relied upon and (2) be sufficiently specific to enable [this Court] to ascertain the facts on which the order is based.” Id. If these requirements are not met or are too vague for judicial interpretation, this Court will not hypothesize about the evidence or law upon which the court may have relied to arrive at its decision but will vacate the order and remand the claim for further proceedings to be followed by an order that meets the standards of the law for a judicially reviewable decision. Jobe v. American Legion No. 7, 2001 OK 75, ¶ 12, 32 P.3d 860, 864-65. ¶21 Here, this Court is presented with an order that does not meet the requirements of a judicially reviewable decision. The order in the present case consists of a decision issued by one judge, a concur-in-result — without written explanation — issued by a second judge, and a dissent issued by the third judge of the panel. A review of the order by the three-judge panel would require speculation, or “hypothesizing,” on behalf of this Court regarding whether the judge that concurred-in-result agreed with the findings of fact made by the authoring judge or the legal analysis used to deny the permanent partial disability benefits. The three-judge panel has not presented this Court with a decision sufficient for meaningful review. Nor has the three-judge panel issued a decision “approved by a majority of the members of the Court sitting en banc” as required by Title 85 O.S.2001, § 3.6. ¶22 Based on the foregoing, the order of the three-judge panel in the present matter should be vacated and remanded for further proceedings. CONCLUSION ¶23 Here, the three-judge panel had a concurring vote, a concur-in-result vote, and a dissent. This does not constitute a majority vote as

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required by Title 85 O.S.2001, § 3.6. Although this Court is mindful of the importance of reaching a resolution for the parties in this workers’ compensation claim, we have no jurisdiction to review anything but an appealable order by the three-judge panel. Thus, this Court must vacate the three-judge panel’s Order on Appeal Affirming in Part and Modifying in Part the Decision of the Trial Court and remand the matter for immediate review and entry of a decision consistent with the requirements set forth by the Supreme Court and this Decision. ¶24 VACATED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. GABBARD, P.J., and FISCHER, J., concur. 1. Okla. Sup. Ct. Network (Disposition of cases pending before the Supreme Court).

2010 OK CIV APP 74 IN RE THE MARRIAGE OF: TANYA D. PARNELL, Petitioner/Appellee, vs. JERRY M. PARNELL, Respondent/Appellant. Case No. 106,904. June 25, 2010 APPEAL FROM THE DISTRICT COURT OF SEMINOLE COUNTY, OKLAHOMA HONORABLE GARY SNOW, TRIAL JUDGE AFFIRMED AS MODIFIED Jack Mattingly, Jr., THE MATTINGLY LAW FIRM, P.C., Seminole, Oklahoma, for Petitioner/Appellee W. S. Haselwood, Shawnee, Oklahoma, for Respondent/Appellant DOUG GABBARD II, PRESIDING JUDGE: ¶1 In this divorce action, Respondent, Jerry M. Parnell (Husband), appeals the trial court’s decisions regarding child support, alimony, and property division. We affirm as modified. FACTS ¶2 Petitioner, Tanya D. Parnell (Wife), and Husband were married in 1995. They had three children, born in 1996, 1998, and 2005. The parties were divorced in 2008. ¶3 At the time of the divorce, Wife was 30 years old, and had recently started working as a legal secretary for her attorney at a monthly salary of $1,900. She had previously worked as a finance administrator for the county sheriff at 1982

the same salary. She testified her salary was not enough to provide for herself and the children, make her $800 mortgage payment, and service the marital debt (in fact, some payments had been missed on the home and a vehicle). ¶4 Husband is only slightly older than Wife.1 During their marriage, Husband was employed by Baker Hughes, servicing wells. His yearly gross income was $ 92,537 for 2007, and $68,373 for the first eight months of 2008. However, shortly before trial, Husband quit his job and began working as a background investigator with the Iowa Tribe Gaming Commission, making $28,392 per year. Husband testified he quit his higher-paying job in order to see his children more consistently, noting that the oilfield job sometimes required him to be on site for days at a time. Wife asserted Husband had “self-imposed” a lower salary in order to avoid alimony and child support. She testified that he failed to see his children for months following their separation despite his stated reason for leaving his higher-paying job, and said that he had told her she “wasn’t going to get a dime” from him. She asked the trial court to impute his prior income for purposes of setting both child support and alimony. ¶5 The trial court granted the divorce and awarded custody of the children to Wife, with Husband receiving visitation. Relevant to this appeal, the trial court: (1) ordered Husband to pay $2,054.29 per month as child support, after finding that he quit his former job as a “trial strategy” and imputing to him a monthly income of $10,315.41; (2) awarded Wife $60,000 in support alimony, payable at the rate of $1,000 per month for five years; (3) divided the marital property by awarding Wife the couple’s home, household goods, and personal belongings, her Pontiac G6 automobile, her retirement plan, and an IRS check of $2,100, and awarding Husband his Mustang automobile, his Baker Hughes retirement account, and any personal property in his possession; and (4) granted Wife a $7,731 judgment for amounts Husband had failed to pay under a temporary order. Husband appeals. STANDARD OF REVIEW ¶6 An action for divorce, alimony, and division of property is one of equitable cognizance, and the trial court’s judgment will not be disturbed on appeal unless found to be clearly contrary to the weight of the evidence. Carpenter v. Carpenter, 1983 OK 2, 657 P.2d 646. The

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burden of proof is upon the party filing the appeal to show that the trial court’s findings and judgment are against the clear weight of the evidence. Kiddie v. Kiddie, 1977 OK 69, 563 P.2d 139; Peterson v. Peterson, 1952 OK 25, 240 P.2d 1075. ANALYSIS 1. Child Support ¶7 As noted above, the trial court calculated child support based on Husband’s “prior income” at Baker Hughes because Husband “quit his job while he was making $10,315.41 per month as a trial strategy.” This resulted in Husband paying significantly more than if the court had used his current monthly salary ($2,366). ¶8 Oklahoma follows the rule that “equity will normally not favor reduction of a child support obligation where the parent’s financial condition is due to his/her fault, or voluntary wastage or dissipation of his/her talents and assets.” State ex rel. Dep’t of Human Servs. v. Baggett, 1999 OK 68, ¶ 23, 990 P.2d 235, 244. Title 43 O.S. Supp. 2009 § 118B(D)(2) specifically allows trial courts to impute income to a spouse in determining child support, if it is equitable. In doing so, courts may consider a number of factors: (a) “whether a parent has been determined by the court to be willfully or voluntarily underemployed or unemployed,” taking into consideration the impact of additional training or education; (b) “when there is no reliable evidence of income”; (c) a parent’s “past and present employment”; (d) a parent’s “education, training, and ability to work”; (e) a parent’s lifestyle; (f) a parent’s role as caretaker of a handicapped or seriously ill child or relative of the parent; or (g) any additional factors deemed relevant to the particular circumstances of the case. ¶9 Oklahoma courts have decided several cases where income was imputed to a spouse for child support purposes. In Andersen v. Fellers, 1998 OK CIV APP 53, 960 P.2d 851, the Court affirmed a case where a father asserted his $5,284 monthly income had dropped dramatically because he had started working fewer hours, and the trial court had imputed his higher income after finding he had intentionally reduced his income to avoid child support. In Stephen v. Stephen, 1997 OK 53, 937 P.2d 92, the Supreme Court reversed the trial court’s decision to impute $50,000 as a mother’s income after she quit her job to take the children out of public school and home school them, because Vol. 81 — No. 24 — 9/11/2010

there was no evidence of any intent to affect child support. Finally, in Minnich v. Minnich, 1995 OK CIV APP 60, 898 P.2d 747, a mother changed jobs, resulting in her yearly income dropping from $45,000 to $33,500. The trial court imputed the higher figure, and the Court of Civil Appeals affirmed, noting that the evidence was disputed and the trial court was in the best position to resolve the dispute. Id. at ¶ 7, 898 P.2d at 750. ¶10 In the instant case, Husband stated that he quit his higher paying job in order to spend more time with his children.2 Wife testified that Husband told her she “wasn’t going to get a dime from him,” and she noted that the timing of Husband’s job change, occurring after the divorce was filed and shortly before trial, was consistent with an intent to reduce support. She alleged that Husband’s excuse for leaving his former job was rebutted by his own conduct in failing to see his children for several months following the parties’ initial separation.3 ¶11 When the evidence, as here, is conflicting, we defer to the judgment of the trial court, which is in the best position to observe the behavior and demeanor of the witnesses and to judge their credibility. See Mueggenborg v. Walling, 1992 OK 121, ¶ 7, 836 P.2d 112, 114; Brown v. Brown, 1993 OK CIV APP 142, ¶ 3, 867 P.2d 477, 478. Thus, we find no error in the trial court’s factual findings and its decision to impute to Husband his former income. ¶12 However, the court did not explain how it arrived at the $10,315.41 figure. It may have taken Husband’s $4,760.96 gross income as shown on his pay stub for the two-week period ending August 15, 2008, multiplied that amount by 26 (the number of pay periods in a year), arriving at a figure of $123,784.96, and then divided that figure by 12 months, for the monthly total of $10,315.41. If it calculated Husband’s income in this manner, it erred. Imputing income based upon a single high paycheck did not result in a fair approximation of Husband’s actual wage potential.4 ¶13 Husband’s 2007 income was $92,537. His Baker Hughes pay stubs for the first eight months of 2008 were introduced. Using only those stubs, his 2008 income could have been estimated at $102,560.37. However, the stubs reflect substantial variations in monthly income due in part to seasonal or other fluctuations in the oil and gas industry, and, therefore, estimating income based only upon those pay

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stubs would be, at best, speculative. For this reason, we conclude that the trial court should have used Husband’s 2007 income for the purpose of determining child support. Accordingly, we modify the child support award to $1,697.84 per month.5 2. Alimony ¶14 Husband also asserts the alimony award of $1,000 a month for five years was not supported by the evidence. ¶15 Although alimony is based on a number of factors, two factors have long been most important: the need of the party requesting support alimony, and the ability to pay of the other spouse. See Wood v. Wood, 1990 OK CIV APP 49, ¶ 14, 793 P.2d 1372, 1376. In determining need, courts may consider the following: [D]emonstrated need during the post-matrimonial economic readjustment period; the parties’ station in life; the length of the marriage and the ages of the parties; the earning capacity of each spouse; the parties’ physical condition and financial means; the mode of living to which each spouse has become accustomed during the marriage; and evidence of a spouse’s own income-producing capacity and the time necessary to make the transition to selfsupport. McLaughlin v. McLaughlin, 1999 OK 34, ¶ 13, 979 P.2d 257, 260-61 (footnote omitted); see also Ray v. Ray, 2006 OK 30, ¶ 10, 136 P.3d 634, 636. ¶16 Here, Wife was behind in her bills and was having great difficulty in supporting herself and the children;6 the parties had been married for 13 years and were in their early 30’s; Husband’s earning capacity was substantially greater than Wife’s; the parties’ joint income during the marriage had been substantial and had given them a comfortable mode of living; and although Wife received much of the marital property, it was not income-producing and had large debt. It is reasonable to conclude that Wife might need a substantial period to make the transition to self-support. In fact, Wife’s evidence demonstrated that her income was insufficient to support herself and the children, even with child support, and that alimony would help cushion the economic impact of her post-marriage transition.7 ¶17 We find no error in the trial court’s implicit conclusion that Wife established the 1984

need for alimony. However, while Husband has some ability to pay alimony, he does not have the ability to pay the amount awarded if only his present income is considered. For this reason, it is clear that the trial court imputed income in making its alimony award. While Oklahoma law specifically authorizes the imputation of income for purposes of setting child support, neither the statutes nor prior case law specifically authorize the imputation of income for support alimony purposes. Thus, the trial court’s authority to impute income in this manner raises a question of first impression. ¶18 Other states which have addressed this issue have concluded that alimony may be based upon imputed income when that income represents a party’s earning potential and is otherwise equitable. For example, in Griffin v. Griffin, 993 So.2d 1066 (Fla. Ct. App. 2008), the Florida Court of Appeal quoted an earlier Florida case for the proposition that “[a] spouse’s ability to pay may be determined not only from net income, but also net worth, past earnings, and the value of the parties’ capital assets.” Id. at 1068. It further stated: In determining the amount of alimony based on the payor spouse’s income, a court may impute income when it is shown that a party is capable of earning more than he or she is currently earning. Leonard v. Leonard, 971 So.2d 263, 266 (Fla. 1st DCA 2008)(quoting Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997)). In Smith v. Smith, [737 So.2d 641, 644 (Fla. 1st DCA 1999)], this court held that: [a] trial court can impute income where a spouse has failed to use his or her best efforts to earn income. A claim that a payor spouse has arranged his financial affairs or employment situation so as to shortchange the payee spouse is a valid matter to be explored in determining the payor’s real ability to pay. When the obligor spouse voluntarily becomes unemployed or underemployed, the income that he or she is capable of earning may be imputed for purposes of determining an appropriate award of support. Id.; see also In re Marriage of Cohn, 76 Cal. Rptr 2d 866 (Cal. Ct. App. 1998); Storey v. Storey, 862 A.2d 551 (N.J. Super. Ct. App. Div. 2004); Griffith v. Griffith, 959 P.2d 1015 (Utah Ct. App. 1998); McKee v. McKee, 664 S.E.2d 505 (Va. Ct. App. 2008); Messer v. Messer, 598 S.E.2d 310

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(S.C. Ct. App. 2004)(courts should set alimony based upon a spouse’s “earning potential.”) ¶19 Imputing income for alimony purposes is consistent with Oklahoma law. The Oklahoma Supreme Court has stated that a party’s “earning capacity” may be considered in determining one’s ability to pay alimony. Stansberry v. Stansberry, 1978 OK 77, ¶ 8, 580 P.2d 147, 150; Durland v. Durland, 1976 OK 102, ¶ 5, 552 P.2d 1148, 1149. When a spouse deliberately refuses to use his best efforts to obtain employment, or intentionally becomes under-employed to thwart his spouse or former spouse’s effort to obtain his financial assistance in transitioning to a separate life, equity may justify imputing income to him. ¶20 Based upon all the facts and circumstances in this case, we find no error in the trial court’s imputation of income to Husband for purposes of setting alimony. However, the trial court determined alimony based upon an imputed monthly income of $10,315. We have previously determined that Husband’ imputed monthly income should have been $7,711. Therefore, after considering the record, we find that the alimony award should be modified to $750 per month for five years. 3. Property Division ¶21 Husband also asserts the trial court erred in making its property division. Husband asserts that Wife was awarded most of the marital assets, including the home, and he was awarded most of the marital debt. He argues that the trial court should have placed a value on the home, and then required Wife to pay him money in lieu of property settlement to more evenly divide the marital property and debt, pursuant to what is now 43 O.S. Supp. 2009 § 121(B). ¶22 At trial, the court received conflicting evidence regarding the value of the home ($95,500 by Wife and $120,000 by Husband). However, the court may well have concluded that the home had little equity since the principal balance on the mortgage was $90,000. The trial court awarded the home to Wife and ordered her to pay its mortgage debt. It also gave Wife the home furnishings (valued between $1,800 and $8,405) and its $1,180 debt, the Chevy Tahoe and half its debt or $6,580.30, a $2,100 IRS check, and all of Wife’s school loans. Although Husband correctly argues that Wife received most of the marital assets, she also received most of the marital debt (the Vol. 81 — No. 24 — 9/11/2010

home mortgage) and did not receive substantial equity, because there was little to receive.8 While Husband was ordered to pay most of the remaining $30,031 marital debt, he also received his retirement accounts, which were worth $12,329 to $18,000 before he withdrew money during the marriage. ¶23 The requirement that courts make equitable, fair, and reasonable divisions of the marital estate does not mandate that either spouse be awarded an equal share or even a significant portion of the marital estate. Manhart v. Manhart, 1986 OK 12, 725 P.2d 1234. The trial court is in the best position to determine the exigencies of any particular case concerning a division of marital property. Carpenter v. Carpenter, 1983 OK 2, 657 P.2d 646. In doing so, the trial court is given wide discretion. Kiddie v. Kiddie, 1977 OK 69, 563 P.2d 139. ¶24 Here, an equal division of marital assets and debts would have been difficult. There were few marital assets, and total marital debt exceeded total marital equity. Moreover, the parties greatly differed in their ability to pay the debt. If the court had ordered Wife to pay Husband alimony in lieu of property settlement to more evenly divide the marital estate, it is not clear that Wife could have done so without a corresponding increase in alimony. All things considered, we find no error in the trial court’s property division. ¶25 Finally, Husband asserts the trial court erred in awarding Wife a $7,731.10 judgment for sums he failed to pay under a September 3, 2008, temporary order.9 The trial court found that Husband only paid $500 pursuant to the order, but Husband asserts that he made more payments than he was given credit for. ¶26 The evidence was conflicting as to how much Husband paid for child support and alimony before entry of the September 3, 2008, temporary order. However, Husband admitted that after the order was entered he only paid $500 in alimony and nothing in child support. Thus, we find no error in the amount of the judgment. CONCLUSION ¶27 For the reasons set forth above, the decree of divorce is hereby affirmed in all respects, except as modified herein. Husband’s request for appellate attorney fees is denied. ¶28 AFFIRMED AS MODIFIED.

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GOODMAN, J., concurs, and RAPP, J., not participating. 1. The record does not reveal Husband’s age, but he testified that he graduated from high school in a year previous to Wife. 2. Although Husband also testified he had injured his shoulder while working for his former employer, he did not say he quit his job because of this injury. 3. She also alleged that he spent money inappropriately, citing a trip he took to Las Vegas. However, we do not find this evidence particularly relevant to the issue of imputation of income. 4. Almost all his other paychecks for 2008 were for less than $4,000, and one was $2,210. 5. Pursuant to 43 O.S.2001 § 119, Father’s monthly gross income would be $7,711.42; the parties’ combined adjusted gross income (AGI) would be $9,611.42; Father’s percentage of AGI would be 80.2%; the combined child support for both parents with this income and three children would be $1,749; and Father’s base child support would be $1,402.70. Total child care expenses are listed as $368, and Father’s share would be $295.14. Thus, his total child support under this calculation is $1,697.84. 6. In fact, after the divorce was filed, a vehicle had been repossessed and the family home had been close to foreclosure. 7. Wife specifically sought alimony so that she would be able to make the house payment, reduce her debt, and refinance her loan in a few years. 8. Although the record is not entirely clear, it appears that Wife received between $14,300 and $46,700, less any school indebtedness. 9. This order is not a part of the appellate record, but according to Wife’s undisputed testimony, the parties agreed to a temporary order requiring Husband to pay about $1,700 a month in child support and $1,000 in alimony, plus make the house payment. Husband does not now dispute the existence of that temporary order.

2010 OK CIV APP 80 Brittney Anne Sprowles, Petitioner/ Interested Party, vs. Timothy Chad Thompson, Respondent/Appellant, and State of Oklahoma Department of Human Services — Child Support Services, Appellee/Interested Party. Case No. 107,017. July 9, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLHOMA HONORABLE KYLE B. HASKINS, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Blaine Frierson, Broken Arrow, Oklahoma, for Petitioner/Interested Party Timothy Chad Thompson, Tulsa, Oklahoma, Appellant pro se Elizabeth S. Wilson, State of Oklahoma, Department of Human Services, Child Support Services, Tulsa, Oklahoma, for Appellee/Interested Party JERRY L. GOODMAN, JUDGE: ¶1 Timothy Chad Thompson (Thompson) appeals the trial court’s April 2, 2009, order 1986

which: 1) dismissed his motion to set aside child support orders, eliminate arrearage, rescind acknowledgement of paternity, and remove his name from the minor child’s birth certificate; and 2) granted the motion to dismiss filed by the Oklahoma Department of Human Services ‚— Child Support Services (DHS). Based upon our review of the facts and applicable law, we reverse and remand for further proceedings. FACTS ¶2 Thompson and Brittney Anne Sprowles (Sprowles) dated and lived together in 2004. They briefly ended their relationship in January of 2005 and Sprowles, unbeknownst to Thompson, had sexual relations with another man. Thompson and Sprowles resumed their relationship and Sprowles learned she was pregnant in February of 2005. On October 29, 2005, Sprowles gave birth to the minor child, TCT. Sprowles represented to Thompson and others that he was the father. On October 30, 2005, Thompson and Sprowles signed a birth certificate and Affidavit Acknowledging Paternity (Acknowledgment). ¶3 On January 27, 2006, Sprowles filed a petition for paternity. A temporary order was filed on March 14, 2006, setting Thompson’s child support at $270.60 per month. The parties resided together until August of 2006, when Thompson contends he realized TCT was not his child. Thompson asserted that after TCT’s birth, he slowly realized TCT was not his child because he became increasingly “dark hued or toned” and both he and Sprowles are Caucasian. Sprowles further purportedly admitted to Thompson she had been with another man and that TCT could be the other man’s child. ¶4 On June 9, 2008, Thompson filed a motion to set aside child support orders, to eliminate all arrearage, and to remove his name as father from TCT’s birth certificate (“challenge”). Thompson asserted Sprowles, through deceit, concealment of material facts, and false representations, asserted TCT was his child and that based on these representations, he mistakenly signed the birth certificate and Acknowledgement. ¶5 DHS filed a motion to dismiss Thompson’s challenge, asserting Thompson was the “acknowledged father” pursuant to the Uniform Parentage Act, 10 O.S. Supp. 2006, § 7700101 et seq. and his challenge was therefore timebarred.

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¶6 Sprowles responded to Thompson’s challenge, asserting he was TCT’s father, “however despite him being the father [mother] would consent to [Thompson’s] Motion to Vacate as to Child Support and Paternity…”. ¶7 After additional briefing by the parties, the trial court entered an order on April 2, 2009, granting DHS’ motion to dismiss and dismissing Thompson’s challenge. Thompson appeals. STANDARD OF REVIEW ¶8 Because the parties presented evidentiary material to the trial court, DHS’ motion to dismiss is properly treated as a motion for summary judgment. See 12 O.S.2001 and Supp. 2004, § 2012(B). Although a trial court considers factual matters in its determination of whether summary judgment is appropriate, the ultimate decision involves a purely legal determination, i.e., whether a party is entitled to judgment as a matter of law because there are no disputed material factual questions. Hill v. Blevins, 2005 OK 11, ¶ 3, 109 P.3d 332, 333. This involves a purely legal determination; the appellate standard of review is de novo. Id. All inferences and conclusions to be drawn from the evidentiary materials must be viewed in the light most favorable to the non-moving party. Id., (citing Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053). ANALYSIS ¶9 Oklahoma enacted the Oklahoma Uniform Parentage Act (UPA), 10 O.S. Supp. 2006, § 7700-101 et seq., on November 1, 2006. Pursuant to 10 O.S. Supp. 2006, § 7700-902, “[a] proceeding to adjudicate parentage or an acknowledgment of paternity which was commenced or executed before November 1, 2006, is governed by the [UPA].” The Legislature has expressed its intent the UPA govern those proceedings and acknowledgments commenced or executed both prior and after its enactment. See TXO Prod. Corp. v. Oklahoma Corp. Comm’n, 1992 OK 39, ¶ 7, 829 P.2d 964, 969 (“It is presumed that the legislature has expressed its intent in a statute and that it intended what it so expressed.”). ¶10 Title 10 O.S. Supp. 2006, § 7700-102 provides an “acknowledged father” is a man who has established a father-child relationship by signing an acknowledgment of paternity. Thompson signed an acknowledgment acknowledging paternity on October 30, 2005, Vol. 81 — No. 24 — 9/11/2010

and is therefore an “acknowledged father” under the UPA. An acknowledgment establishes fatherhood in the same manner as an adjudication by the court and confers upon the father all the rights and duties of a parent. See 10 O.S. Supp. 2006, § 7700-305. ¶11 The UPA provides two (2) ways to avoid an acknowledgement, by rescission and by challenge. See 10 O.S. Supp. 2006, § 7700-307 and § 7700-308. Section 7700-307 provides a signatory has sixty (60) days to sign a rescission of acknowledgment of paternity after the effective date of the acknowledgment. Thompson did not sign a rescission. To proceed by challenge, § 7700-308 provides: A. After the period for rescission … has expired, a signatory of an acknowledgment of paternity or denial of paternity may commence a proceeding to challenge the acknowledgment or denial only: 1. On the basis of fraud, duress, or material mistake of fact; and 2. Within two (2) years after the acknowledgment or denial is executed. ¶12 On appeal, Thompson contends the trial court violated his due process rights by retroactively applying § 7700-308, which is a statute of repose. DHS disagrees, asserting the court correctly applied the time bar in § 7700-308, as a statute of limitation, retroactively to Thompson’s challenge. ¶13 Oklahoma recognizes two (2) categories of statutory time bars. “If the time period operates to bar the right to a cause of action, the statute falls into the substantive-law category and is referred to as a statute of repose.” Consolidated Grain & Barge Co. v. Structural Sys., 2009 OK 14, ¶ 8, 212 P.3d 1168, 1171 (citing Reynolds v. Porter, 1988 OK 88, 760 P.2d 816). A statute of repose operates upon the substantive right to recover and will extinguish the right even if it has not accrued. Consolidated Grain, 2009 OK 14, at ¶ 10, 212 P.3d at 1172, (citing Smith, 1987 OK 3, at ¶ 6 fn. 11, 732 P.2d at 469 fn. 11). “If the time period operates to bar the right to maintain the cause of action or remedy, the statute falls into the procedural-law category and is referred to as a statute of limitation.” Consolidated Grain, 2009 OK 14, at ¶ 8, 212 P.3d at 1171. A statute of limitation operates procedurally to bar the remedy after the substantive right has occurred. Id. at ¶ 9, 212 P.3d at 1171.

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[A] statute of limitation serves to place a limit on the plaintiff’s time to bring an action. After the prescribed time period has lapsed, a statute of limitation serves to extinguish the remedy for the redress of an accrued cause of action. A statute of repose, by way of contrast, restricts potential liability by limiting the time during which a cause of action can arise. It thus serves to bar a cause of action before it accrues. In a practical sense, a statute of limitation implicitly seeks to punish those who sleep on their rights, while the statute of repose operates to bar some plaintiffs recovery, no matter how diligent they may have been in asserting their claims ... Kirby v. Jean’s Plumbing Heat & Air, 2009 OK 65, ¶ 10 fn. 22, 222 P.3d 21, 26 fn. 22 (citing Smith, 1987 OK 3, ¶ 6 fn. 11, 732 P.2d 466, 468 fn. 11). See e.g., 12 O.S.2001, § 109 (a limitation period held to be a statute of repose); 60 O.S.2001 and Supp. 2003, § 837 (a limitation period held to be a statute of repose). ¶14 We find § 7700-308 is a statute of repose. It operates to cut off the right to challenge an acknowledgement of paternity two (2) years after the acknowledgement was signed, regardless of whether the cause of action has accrued, i.e., whether the individual has discovered the fraud, duress, or misrepresentation. ¶15 We further find the trial court erred in applying § 7700-308 retroactively in this case. The UPA introduces not only procedural changes, but also substantive changes to a paternity action. As a general rule, statutes are to be applied prospectively only unless the Legislature clearly expresses a contrary intent. See Oklahoma Bd. of Med. Licensure & Supervision v. Oklahoma Bd. of Examiners in Optometry, 1995 OK 13, 893 P.2d 498; Forrest Oil Corp. v. Corporation Comm’n. of Oklahoma, 1990 OK 58, 807 P.2d 774. The general rule, however, is not applicable to statutes affecting only procedure because no one has a vested right in any particular procedure. Id. An “enactment which is not of the substance of a right of action, but which is more in the nature of a directive to the trial court has been deemed a mode of procedure subject to retrospective application.” Triple D. Excavation v. Edwards, 2003 OK CIV APP 38, ¶ 7, 70 P.3d 884, 886 (citing Benson v. Blair, 1973 OK 102, ¶ 6, 515 P.2d 1363, 1365). Statutes of limitations are viewed as procedural rather than of a substantive-law nature and are generally retroactively applied. See Cole v. Silverado 1988

Foods, Inc., 2003 OK 81, 78 P.3d 542; Trinity Broadcasting Corp. v. Leeco Oil Co., 1984 OK 80, 692 P.2d 1364. A statute of repose, however, falls into the substantive-law category and is not retroactively applied. Consolidated Grain, 2009 OK 14, at ¶ 8, 212 P.3d at 1171 (citing Reynolds, 1988 OK 88, 760 P.2d 816). ¶16 Although the Legislature specially stated “a proceeding to adjudicate parentage or an acknowledgment of paternity which was commenced or executed before November 1, 2006, is governed by the [UPA],” we find § 7700-308 is a statute of repose affecting Thompson’s substantive-law rights. As a result, it is not subject to retroactive application in this case. Compare Sudbury v. Deterding, 2001 OK 10, 19 P.3d 856 (finding a statutory amendment to be substantive and refusing to apply it retroactively because it significantly increased a defendant’s potential damages from three (3) to five (5) times actual damages); Benson v. Blair, 1973 OK 102, 515 P.2d 1363 (holding a statute providing for and establishing a rate of pre-judgment interest was procedural in nature and should be applied retrospectively). Therefore, the trial court erred in granting DHS’ motion to dismiss on the basis of 10 O.S. Supp. 2006, § 7700-308. ¶17 DHS asserts however, and the trial court held, Thompson’s challenge was also time barred under pre-UPA law. Prior to the adoption of the UPA, 10 O.S.2001 and Supp. 2002, § 70 permitted a presumed father to challenge a voluntary acknowledgment of paternity on the basis of fraud, duress, or material mistake of fact at any time. Section 70 did not contain a time limitation. Section 70 provided, in relevant part: [A]fter the sixty-day period referred to in division (1) of this subparagraph, a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger. (Repealed by Laws 2006, HB 2967, c. 116, § 62, eff. November 1, 2006). ¶18 In reaching its decision, the trial court cited Hill v. Blevins, 2005 OK 11, 109 P.3d 332. In Hill, Hill and Blevins were living together and agreed to conceive a child. They ended their relationship prior to the child’s birth. Blevins moved and Hill became incarcerated. Blevins gave birth to the child in September of 1997, thereafter alleging another man was the father.

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Blevins apparently signed an affidavit of acknowledgment declaring the other man as the father. ¶19 In 2002, Hill learned paternity of the minor child had been established in another man pursuant to the acknowledgment. Hill filed two (2) petitions, one (1) seeking to establish paternity and the other to vacate and set aside the order for fraud, i.e. to vacate the affidavit of acknowledgment declaring the other man to be the minor child’s father. The trial court granted Blevins and DHS’ motion to dismiss, which the Court of Civil Appeals reversed. On certiorari, the Oklahoma Supreme Court vacated the Court of Civil Appeals’ decision and affirmed the trial court’s decision. ¶20 The Supreme Court noted initially that because a statement acknowledging paternity has the same legal effect as an order entered into court, a trial court has the power to vacate the order for fraud. Id. at ¶ 10, 109 P.3d at 335. The ground for vacation is 12 O.S.2001, § 1031(4). Id. Title 12 O.S.2001, § 1038 is a general statute of limitations applicable to proceedings brought pursuant to § 1031. Thus, “[w]ith regards to subsection 4, where the complaining party alleges that an order has been obtained by fraud, proceedings to vacate that order must be commenced within two years after the order was made.” Id. Therefore, the Court held Hill was barred from pursuing his paternity claim by the general statute of limitations. ¶21 We find Hill distinguishable. Although Hill involved a paternity issue, the Oklahoma Supreme Court did not cite or otherwise apply § 70 in reaching its decision. However, in the present case, the applicable law in effect at the time Thompson executed the Acknowledgment was § 70. Section 70 is clearly applicable when an acknowledging father seeks to rescind or challenge the acknowledgment he signed on the basis of fraud, duress, or material mistake of fact. It is a well-settled rule of statutory construction that where a matter is addressed by two statutes, one specific and one general, the specific statute controls. In re C.R.T., 2003 OK CIV APP 29, ¶ 31, 66 P.3d 1004, 1011 (Hall v. Globe Life and Acc. Ins. Co. of Okla., 1999 OK 89, 998 P.2d 603). Accordingly, the specific provisions of § 70 control over the more general provisions contained in §§ 1031 and 1038. See also State of Oklahoma, ex rel Dept. of Human Serv. v. Chisum, 2004 OK CIV APP 20, 85 P.3d 860. Therefore, the trial court erred in holding Vol. 81 — No. 24 — 9/11/2010

Thompson’s challenge was time barred by preUPA law. ¶22 Because of our resolution of these issues, we need not address the remaining assertions of error on appeal. The trial court’s order is reversed and the matter remanded to the trial court for further proceedings consistent with this opinion. ¶23 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. GABBARD, P.J., concurs; RAPP, J., not participating.

2010 OK CIV APP 77 ANDREW J. ORCUTT, Petitioner/Appellant, vs. LLOYD RICHARDS PERSONNEL SERVICE &/OR COMPSOURCE OKLAHOMA and THE WORKERS COMPENSATION COURT, Respondents/ Appellees. Case No. 107,047. June 25, 2010 PROCEEDING TO REVIEW AN ORDER OF THE WORKERS COMPENSATION COURT HONORABLE H. THOMAS LEONARD, TRIAL JUDGE SUSTAINED W. E. Sparks, Tulsa, Oklahoma, for Petitioner/ Appellant David J. L. Frette, HASTINGS & ASSOCIATES, Tulsa, Oklahoma. for Respondents/Appellees JERRY L. GOODMAN, JUDGE: ¶1 Claimant, Andrew J. Orcutt, appeals the trial court’s April 22, 2009, order denying his claim for compensation for injury to his left knee while playing basketball in Employer’s warehouse. We sustain the order. FACTS ¶2 Claimant was employed by Lloyd Richards Temporary Employment Agency who assigned him to work for Marisol in its warehouse. The warehouse contained a portable basketball goal with the surrounding floor painted to simulate a basketball court. Marisol permitted its workers to use these facilities to play basketball before and after work and on their lunch and afternoon breaks. ¶3 Claimant argues that Marisol encouraged this workplace recreational activity by its lunch period policy. Employees were granted one-

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half hour for their lunch period. However, employees remaining on the premises during the lunch period were not required to clock out and only had thirty minutes deducted from their work time for the lunch period each day. Conversely, employees leaving the premises were allowed a half-hour for their lunch period but were required to clock out and in when leaving and returning to work. Apparently, Claimant used a portion of his lunch period to play basketball. ¶4 Claimant injured his knee during this activity. Employer agreed Claimant was injured. However, it denied his injury was a compensable injury. ¶5 The trial court found claimant “was injured while playing a game of basketball with co-worker immediately after lunch” and those injuries “are the result of engaging in a recreational activity, (playing basketball),” and therefore did not arise out of and in the course of his employment, citing 85 O.S.2001 and Supp 2005, § 3(13)(d). THE CHALLENGED LAW ¶6 Title 85 O.S. 2001 and Supp. 2005, § 3(13)(a) and (d) state, in relevant part: a. “Compensable injury” means any injury… which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness… d. “Compensable injury” … shall not include the ordinary, gradual deterioration or progressive degeneration caused by the aging process, unless the employment is a major cause of the deterioration or degeneration and is supported by objective medical evidence, as defined in this section; nor shall it include injury incurred while engaging in, performing or as the result of engaging in or performing any recreational or social activities … (Emphasis added.) ¶7 Claimant’s sole proposition of error states: Trial Court Abused Its Constitutional Authority In Not Declaring Section 3 Subsection 13(D) Of Title 85, As Vague, Ambiguous And Unconstitutional, Based On Its Failure To Qualify Or Quantify, What Or When Recreational Or Said Social Activities Are To Be Deemed Non-Compensable Injuries. [All caps removed.] 1990

STANDARD OF REVIEW ¶8 Claimant’s constitutional challenge to this statute presents a question of law, which we review de novo. The appellate court will exercise its “plenary, independent, and non-deferential authority [when] reexamin[ing] a trial court’s legal rulings.” Spielmann v. Hayes, 2000 OK CIV APP 44, 3 P.3D 711; Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, ¶ 4, 932 P.2d 1100, 1103 n. 1. This Court’s standard of review is de novo and gives no deference to the legal rulings of the trial court. State, ex rel. Dept. of Human Services, ex rel. Jones v. Baggett, 1999 OK 68, 990 P.2d 235. Regarding questions of constitutionality, this Court will not declare an act of the legislature “void unless it is clearly, palpably, and plainly inconsistent with the terms of the Constitution.” HazelAtlas Glass Co. v. Walker, 1945 OK 176, 195 Okla. 470, 159 P.2d 268, 269. Rivas v. Parkland Manor, 2000 OK 68, ¶ 6, 12 P.3d 452, 455. ANALYSIS ¶9 Claimant’s proposition of error is without merit. ¶10 The appealed order does not address the issue of § 3(13)(d)’s constitutionality; therefore we have no decision on this issue to review. Claimant must present a record to this Court showing the trial court ruled erroneously on the appealed issue. No such ruling appears in the record. Absent such, the final order of the trial court is presumed to be correct. Pracht v. Oklahoma State Bank, 1979 OK 43, ¶ 5, 592 P.2d 976, 978. This reason alone supports our finding and conclusion that the trial court committed no error. ¶11 Because of the importance of the constitutional issue, we will accept Claimant’s argument that the trial court implicitly ruled that the statute is constitutional. Claimant contends the language chosen by the Legislature, i.e., “any recreational or social activity” is so vague and overbroad as to prohibit constitutionally protected conduct. Claimant’s brief asks this question: What conduct is asking to be protected? Any injury sustained under the dominion and control and approval of one’s employer should be compensable.

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¶12 Clearly, the Legislature has answered Claimant’s question: A worker’s conduct during a recreational or social activity resulting in an injury to the worker is excluded from the definition of a compensable injury even though such an activity occurs at the workplace and is permitted and condoned by the employer. ¶13 Claimant makes another argument that the Legislature’s choice to limit the type of injury for which compensation is paid will result in “unintended consequences” because activities which used to be compensable under previous law are no longer compensable. This argument is logically untenable. The intended consequence of this provision is that injuries to workers incurred during employer-sponsored recreational or social activities will no longer be compensable. Clearly, this is the intended consequence of the law, not the unintended. ¶14 Under this provision Claimant is correct when he states that “activities which used to be compensable under previous law are no longer compensable.” This is so because the Legislature has exercised its legislative power to make it so. The Legislature passed the subject law, one of the purposes of which is to exclude from the definition of compensable injury “. . . injury incurred while engaging in, performing or as the result of engaging in or performing any recreational or social activities . . . .” We also recognize the following general rules concerning statutory interpretation. When called on to determine the meaning of a statute, a court’s primary goal is to ascertain and then follow the intention of the Legislature. See TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15, 20. Legislative intent is ascertained by reviewing the whole act in light of its general purpose and object. Id. [Fulsom v. Fulsom, 2003 OK 96, 81 P.3d 652] further delineated certain well recognized principles concerning statutory interpretation. Fulsom states: The plain meaning of a statute’s language is conclusive except in the rare case when literal construction would produce a result demonstrably at odds with legislative intent. Also, a court is duty-bound to give effect to legislative acts, not to amend, repeal or circumvent them. A universally recognized principle in cases when a court is called on to interpret legislative enactments is that the court is without authority to rewrite Vol. 81 — No. 24 — 9/11/2010

a statute merely because the legislation does not comport with the court’s conception of prudent public policy. Fulsom, 2003 OK 96, ¶ 7, 81 P.3d at 655. (citations omitted). Boston Avenue Management, Inc. v. Associated Resources, Inc., 2007 OK 5, ¶ 11, 152 P.3d 880, 885. ¶15 The fact this particular law may have unintended consequences can not be allowed to defeat its intended consequences. The Legislature has made clear that the purpose and consequence of the subject statute is to exclude from the definition of compensable injury an injury incurred while engaging in, performing, or as the result of engaging in or performing, any recreational or social activities. ¶16 Claimant further argues that the Legislature cannot limit or change benefits conferred by the Workers’ Compensation Laws. This too is an erroneous argument. What statute applies to a particular case or controversy and whether benefits have vested under the applicable statute admittedly requires the exercise of judicial power. Nevertheless, the definition of compensable injury and the nature and extent of benefits to be awarded for such is determined by statute. A compensation system for workers’ injuries occurring on the job did not exist at common law. These various state workers’ compensation systems are strictly a legislative creation. ¶17 In Rivas, id., the Supreme Court of Oklahoma held that: The formulation of the particular elements and details of the Workers’ Compensation Act clearly falls within the legislature’s province. Okla. Const. Art. 5, § 36; [Adams v. Iten Biscuit Co., 1917 OK 47, 162 P. 938] at 942. . . . . . Rivas invokes the remedy guarantee to attack this substantive legislative policy choice. However, this Court has already determined Art. 2, § 6 was not “intended to preserve a particular remedy for given causes of action in any certain court of the state, nor was it intended to deprive the Legislature of the power to abolish remedies for future accruing causes of action ..., or to create new remedies for other wrongs as in its wisdom it might determine.” Adams, 162 P. at 942. Accordingly, this Court cannot grant Rivas the relief he seeks under Art. 2, § 6, because the legislature is

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under no obligation to preserve a certain remedy for Rivas and the courts are, in turn, not able to provide a remedy where the legislature has not provided one. The remedy clause does not constrain the legislature, but rather compels the judiciary to be open to all persons with actionable causes. In Oklahoma, Art. 2, § 6 does not provide an avenue for Rivas to attack the actions of the legislature. Because it is the legislature and not the judiciary that limited Rivas’ PPD compensation, this proposition must fail. Id. at ¶¶ 19-21, at 458. ¶18 Claimant makes his own error of vagueness when he asserts that legal error occurred because Claimant had some right to a specific remedy prior to becoming injured. The Legislature’s prerogative to exclude from compensability injuries to workers incurred during workrelated recreational and social activities is not an unconstitutional exercise of its power to legislate. Claimant has not been deprived of any rights, vested or otherwise. ¶19 Finally, there is ample competent evidence in this record to support the trial court’s factual determinations, which is all the law requires under the so-called “any competent evidence” standard of review. ¶20 For all these reasons, we sustain the order under review. ¶21 SUSTAINED. GABBARD, P.J., concurs; RAPP, J., not participating.

2010 OK CIV APP 79 CARL E. BEAVERS and MYRTLE B. BEAVERS, Plaintiffs/Appellees, vs. HAROLD E. BYERS, Defendant/Appellant. Case No. 106,752. July 9, 2010 APPEAL FROM THE DISTRICT COURT OF LEFLORE COUNTY, OKLAHOMA HONORABLE JEFF MIXON, JUDGE DISMISSED IN PART, AFFIRMED IN PART AND REMANDED WITH DIRECTIONS Benjamin J. Curtis, Poteau, Oklahoma, for Plaintiffs/Appellees, Marc Bovos, Poteau, Oklahoma, for Defendant/Appellant. Wm. C. Hetherington, Jr., Judge: 1992

¶1 Harold E. Byers (Byers) appeals a trial court order in favor of Carl and Myrtle Beavers (the Beavers) finding Byers breached their contract to purchase personal property and awarding the Beavers damages and attorneys fees. Our review of the record reveals the appeal of the underlying judgment is untimely and must be DISMISSED. Byers’ appeal of the attorney fee award is timely, and is AFFIRMED. APPEAL FROM JUDGMENT IN UNDERLYING ACTION ¶2 “Appellate review is commenced by bringing a petition in error within thirty days of the date the trial court’s judgment or final order is filed. Timely commencement is jurisdictional. Failure to file an appeal within the statutory time is fatal.” Stites v. DUIT Construction Company, Inc., 1995 OK 69, ¶25, 903 P.2d, 301-302. Jurisdictional inquiries into appellate cognizance may be considered and re-examined, on motion or sua sponte, at any stage of the proceeding. Id., ¶8. FACTS ¶3 Byers mailed his Petition in Error on January 27, 2009, indicating the appealable judgment in this matter was filed December 31, 2008 and that no post-trial motions had been filed. The December 31, 2008 “Final Judgment” followed hearing on December 22, 2008, set specifically to determine the amount of attorney fees and costs. It finds in favor of the Beavers and awards them a $3,605 damage judgment against Byers, and then $13,034 in attorney fees and costs, and pre- and post-judgment interest. ¶4 However, the so-called “Final Judgment” specifically refers to the trial court’s prior “Judgment” filed on September 24, 2008. That judgment order included the same findings, with a specific award of damages, a general cost award and interest in favor of the Beavers and against Byers, and also specifically denies each of Byers’ theories of relief alleged in his counterclaim. The September 24, 2008 Order did not set attorney fee or cost specific amounts. ANALYSIS ¶5 “Our mandatory appellate jurisdiction from orders of the district court is limited to final orders or judgments and interlocutory orders appealable by right.” First Capital Bank v. Tarrant, 2007 OK CIV APP 83, ¶2 169 P.3d 1210, 1211. A “final order” is “[a]n order affect-

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ing a substantial right in an action, when such order, in effect, determines the action and prevents a judgment.” 12 O.S.2001 § 953. For purposes of Byers’ appeal, the September 24, 2008 Judgment fully resolved the Beavers’ claim and Byers’ counterclaim and therefore, it is the “final order” of the case that triggered the 30day period within which a petition in error must be filed to commence a timely appeal. Byers did not file a petition in error within that period. Nor was any post-trial motion for new trial or equivalent motion filed “no later than 10 days” after the filing or the mailing of the September 24, 2008 Judgment which would have extended the time to commence an appeal until disposition of the post-trial motion. Okla. Sup.Ct.R. 1.22(c)(1). ¶6 The only post-trial motion in this matter was the Beavers’ application for attorney fees and costs, which was filed October 21, 2008. “The filing of a motion for costs or attorney fees shall not extend or affect the time to appeal.” (Emphasis added.) 12 O.S.Supp.2004 § 990.2(D); see also Okla.Sup.Ct.R. 1.22(d). As a result, Byers’ January 27, 2009 Petition in Error came too late to confer jurisdiction on this court as to the judgment for the underlying action. Accordingly, we do not address propositions I through IV of Byers’ Brief in Chief. APPEAL FROM JUDGMENT AWARDING ATTORNEY FEES ¶7 Byers’ remaining proposition raises error with the trial court’s award of attorney fees. The first question that must be addressed is whether his appeal of that issue was timely filed. TIMELINESS ANALYSIS ¶8 Our review of the record reveals a hearing was held November 5, 2008 on the Beavers’ application for attorney fees and costs and Byers’ answer in opposition.1 On December 3, 2008, the trial court filed an “Order Granting Motion for Award of Attorney Fees and Costs and Scheduling Hearing,” determining the Beavers were entitled to an award of attorney fees and setting December 22, 2008 as the date for an “evidentiary hearing regarding the amount of attorney fees and costs.” A trial court order determining only a party’s entitlement to attorney fees and costs does not constitute a final order. Keel v. Wright, 1995 OK 18, 890 P.2d 1351; City of Norman v. American Federation of State, County and Municipal Employees Local 2875, 2006 OK CIV APP 137, ¶3, 146 P.3d 872. Vol. 81 — No. 24 — 9/11/2010

¶9 Byers subsequently filed a “Motion To Strike Hearing,” which motion the trial court denied at the commencement of the December 22, 2008 hearing. After that hearing, the trial court filed an “Order Awarding Attorney Fees and Costs” on December 29, 2008 determining the total amount of reasonable attorney fees and costs to be $13,034.40.2 Because the issues of entitlement to and the reasonable amount of attorney fees and costs were fully resolved upon the filing of the December 29, 2008 order, the 30-day period for commencing an appeal from that order was triggered on that date, not December 31, 2008 when the so-called “Final Judgment” was filed, as Byers contends in his Petition in Error. The December 31, 2008 “Final Judgment” is essentially a reaffirmation or reiteration of all three of the trial court’s prior orders and is no longer within this court’s reviewing cognizance. Stites v. DUIT Construction Company, Inc., 1995 OK 69, ¶27, 903 P.2d at 302. “Once an appealable event has occurred, a trial judge is utterly without authority to extend appeal time by any means or in any manner, direct or oblique.” Id., at ¶28. ¶10 Unlike Byers’ appeal from the underlying action, his appeal of the trial court’s award of attorney fees in favor of the Beavers is reviewable. Having concluded the December 29, 2008 Order Granting Attorney Fees and Costs is the appealable order as to the attorney fees and costs, the last day of the jurisdictional 30-day period for commencement of an appeal from that order would have been January 28, 2009. Because Byers mailed his Petition in Error on January 27, 2009, it is deemed filed on that date. Okla.Sup.Ct.R. 1.4(c). As a result, Byers’ appeal from the attorney fee award was timely filed and is the only matter properly before this Court. See Keel v. Wright, 1995 OK 18, 890 P.2d 1351. ATTORNEY FEE AND COST ANALYSIS ¶11 For reversal of the trial court’s award of attorney fees and costs, Byers argues neither 12 O.S.2001 §§ 936 or 940 applies to the facts of this case. Whether a party is entitled to an attorney’s fee is a legal question which is reviewed de novo. Finnell v. Jebco Seismic, 2003 OK 35, ¶7, 67 P.3d 339, 342. Appellate courts have plenary, independent, and non-deferential authority to reexamine a trial court’s legal rulings. Id. ¶12 By its December 3, 2008 order, the trial court determined the Beavers were entitled to

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an award of attorney fees as the prevailing party under 12 O.S.2001 §§ 936 and 940. As pertinent here, § 936 authorizes an award of a reasonable attorney fee to the prevailing party in any civil action to recover on a “contract relating to the purchase or sale of goods, wares, or merchandise.” ¶13 Byers’ only argument on appeal against the Beavers’ entitlement of attorney fees under § 936 is that he is not a merchant and the Beavers are not a purchaser of goods of that kind. However, the authorities he cites, Oltman Homes, Inc. v. Mirkes, 2008 OK CIV APP 64, 190 P.3d 1182, and Holbert v. Echeverria, 1987 OK 99, 744 P.2d 960, held attorney fees under § 936 may not be awarded when the action is one primarily to recover damages for breach of a contract to convey real estate. No such contract is presented by the evidence in this case. ¶14 When specifically addressing § 936, the trial court found the parties had entered into a contract in which the Beavers offered to purchase from Byers certain personal property he had in the cabin on the Beavers’ property for $2,500, they sent Byers a check for that amount, he accepted it but failed to deliver those items to the Beavers. The contract was established by testimony and documentary proof, i.e., letters from the Beavers to Byers identifying the specific personal property and the $2,500 check Byers accepted for that property. The Beavers clearly sought to recover on a contract relating to a purchase of goods, and the evidence supports the trial court’s award of attorney fees based on § 936. ¶15 We next address entitlement of attorney fees under § 940(A). This statute provides that “[i]n any civil action to recover damages for the negligent or willful injury to property and any other incidental costs related to such action, the prevailing party shall be allowed reasonable attorney’s fees, court costs and interest to be set by the court and to be taxed and collected as other costs of the action.” ¶16 Byers makes two arguments. He contends the trial court did not initially find he had negligently or willfully injured the Beavers’ property and only awarded them money “for items he removed from the cabin,” not damages to the cabin. Both arguments fail to consider the December 3, 2008 Order, in which the trial court expressly found “[Byers] willfully and wrongfully removed fixtures, valued at $1,105, from a cabin belonging to [the Bea1994

vers]. . . the removal of such fixtures (identified therein) . . . constitutes wilful damage to [their] property.” Byers has not argued any error with the trial court’s “willful” or “fixture” determinations nor has he argued or cited legal authority that fixtures do not qualify as “property” under § 940(A). Considering the statutory definitions of “property” and “fixtures,”3 the trial court properly determined the Beavers were also entitled to attorney fees under § 940(A). ¶17 “What constitutes a reasonable attorney fee is a matter addressed to the sound discretion of the trial court to be decided based on various factors.” Tibbetts v. Sight ‘n Sound Appliance Centers, Inc., 2003 OK 72, ¶ 3, 77 P.3d 1042, 1046 (citations omitted). “[A] judgment awarding attorney fees will not be reversed absent an abuse of discretion.” Id. “As a general matter, an abuse of discretion review standard includes appellate examination of both fact and law issues.” Id. “[A]buse occurs when the ruling being reviewed is based on an erroneous legal conclusion or there is no rational basis in the evidence for the decision.” Id. ¶18 Byers alleges the trial court failed to apportion attorney fees between successful and unsuccessful claims, arguing the major dispute in the lawsuit revolved around ownership of the cabin and the trial court should have deducted the time spent by the Beavers’ attorney in defense of his counterclaim regarding ownership of the cabin. Although we agree that the latter is not a theory upon which attorney fees may be awarded, our review of the record disputes Byers’ identification of the “major dispute” as the ownership of the cabin and affirms the trial court’s (1) express rejection of that argument, (2) its finding that the breach of contract and willful damage to property “were not minor issues,” and (3) its finding that the “issues became inextricably interrelated” when Byers raised the issue of ownership of the cabin. Nor do we find any merit to Byers’ allegation that the trial court’s attorney fee award was intended to punish Byers for asserting his legal theories and defenses. ¶19 Correctly pointing out that an attorney fee award must bear some reasonable relationship to the amount in controversy, Byers lastly argues that an award of $12,312.50 for attorney fees in a case where the judgment is $3,605 does not pass that test. This argument must fail for several reasons. The record clearly demonstrates that the parties stipulated to the hourly rate of $250 per hour and further supports the

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trial court’s Burk analysis,4 which included findings that the amount of the fees are justified because the litigation was made necessary by Byers’ wrongful acts, his removal of the action from small claims court to district court, and the length and complexity of the litigation. Further, Byers’ own motion to strike the December 22, 2008 evidentiary hearing for determining a reasonable amount of attorney fees admits that at the November 5, 2008 hearing on the issue of entitlement “the parties advised [the Court] there was no dispute about the hourly rate sought and that there is no dispute about the numbers of hours spent on the case.” (Emphasis added.) On this record, we cannot say that the trial judge’s decision was clearly erroneous or without a basis in reason or evidence. CONCLUSION ¶20 Byers’ Petition in Error seeking corrective relief from the trial court’s disposition of all of the parties’ claims and damages, which was filed September 24, 2008, not December 31, 2008 as indicated in his Petition, came too late and is ordered DISMISSED. Byers’ appeal of the trial court’s attorney fee award was timely and that judgment is AFFIRMED. The Beavers’ request for appeal-related attorney fees is GRANTED. Case is REMANDED for determination of appeal-related attorney fees. BUETTNER, P.J., concurs. HANSEN, J., concurs in part, dissents in part: ¶21 I dissent to that portion of the majority opinion dismissing appellant’s appeal of the underlying judgment without giving him an opportunity to show cause why the appeal should not be dismissed as untimely. 1. A transcript for this hearing, if any, is not included in the record. 2. In its December 29, 2008 Order, the trial court reiterated the case’s procedural history and noted the parties’ stipulation as to the reasonableness of the Beavers’ $721.90 costs request and to the $250 hourly rate. The trial court also made detailed findings including that the number of hours submitted, 49.25, was reasonable in light of the complexity of the evidence, the issues, and other factors even though it exceeded the $3,605 judgment. 3. “Property” is either (1) real or immovable or (2) personal or movable. 60 O.S.2001 § 4. A thing is deemed affixed to the land when it is. . . embedded in it, as in the case of walls, or permanently resting upon it, as in the case of buildings, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts or screws.” 60 O.S.2001 § 7. 4. State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, ¶8, 598 P.2d 659, 661.

2010 OK CIV APP 68 JEANNE FRENCH, Plaintiff/Appellant, vs. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF Vol. 81 — No. 24 — 9/11/2010

CORRECTIONS and OKLAHOMA MERIT PROTECTION COMMISSION, Defendants/ Appellees. Case No. 106,210. June 10, 2010 APPEAL FROM THE DISTRICT COURT OF COAL COUNTY, OKLAHOMA HONORABLE RICHARD E. BRANAM, TRIAL JUDGE AFFIRMED Daniel J. Gamino, DANIEL J. GAMINO & ASSOCIATES, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant Gary L. Elliott, DEPARTMENT OF CORRECTIONS, Oklahoma City, Oklahoma, for Defendant/Appellee Oklahoma Department of Corrections JOHN F. FISCHER, PRESIDING JUDGE: ¶1 Petitioner/Appellant Jeanne French appeals a decision of the district court of Coal County. The district court dismissed French’s petition seeking judicial review of a Merit Protection Commission (MPC) decision on the grounds that the district court lacked jurisdiction to hear her appeal, pursuant to 75 O.S.2001 § 318. The decision of the district court is affirmed. BACKGROUND ¶2 French was a classified employee of the Department of Corrections (DOC). On May 25, 2007, after an investigation of allegations that she mailed prohibited items to an inmate at the Oklahoma State Penitentiary, French received a notice informing her that she had been discharged from her employment. French consulted counsel, who, on June 12, 2007, mailed a petition for appeal of her dismissal to the MPC, pursuant to 74 O.S. Supp. 2005 § 840-6.5(C). The record indicates that French’s counsel did not attach sufficient postage to the petition, and it was not delivered to the MPC. The petition was eventually returned to French’s counsel, after the 20-day statutory period for French to file her appeal had expired. French’s counsel wrote to the MPC requesting a waiver allowing French to file an appeal out of time, but did not receive a favorable response. The record reflects that, in November 2007, French’s counsel returned her retainer and informed her there was nothing further he could do. French then engaged her current counsel.

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¶3 On January 18, 2008, French filed her appeal with the MPC, and an “emergency application to extend filing date.” French argued that the MPC Executive Director had discretion to extend the 20-day filing period, and further argued that her petition was deemed filed on June 12, 2007, pursuant to the “mailbox rule” of 12 O.S. Supp. 2002 § 990A(B). ¶4 On February 1, 2008, an MPC analyst issued an investigative report recommending dismissal of French’s petition on jurisdictional grounds, because her petition was filed 238 days after receiving notice of termination. French responded to the investigative report, repeating her previous arguments of executive discretion and effective filing. On February 29, the Executive Director ordered dismissal of French’s appeal, finding that: (1) it was not received by the MPC within 20 days of notice of termination; (2) the 20-day requirement was mandatory and could not be extended; and (3) the mailbox rule did not apply to petitions returned for insufficient postage. ¶5 On March 7, 2008, French filed a petition for “reopening, re-hearing or reconsideration” with the MPC, repeating her prior arguments. On April 4, 2008, the MPC, sitting en banc, issued a “final petition decision” denying French’s petition for reconsideration. On April 30, 2008, French filed a petition pursuant to 75 O.S.2001 § 318 in the district court seeking judicial review of the decisions rendered by the Executive Director and MPC. DOC filed a motion to dismiss arguing that, because judicial review pursuant to section 318 is limited to the review of “individual proceedings” and because French’s petition had been dismissed, there had been no individual proceeding in French’s case. The district court dismissed French’s petition finding that it lacked jurisdiction. STANDARD OF REVIEW ¶6 The granting of a motion to dismiss presents an issue of law requiring de novo review, that is, a plenary, independent, and non-deferential re-examination of the trial court’s legal rulings. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125 n. 1, 932 P.2d 1100, 1103 n. 1. Here, the issue raised in DOC’s motion to dismiss was whether the district court had jurisdiction to hear French’s appeal. This issue presents a question of law, which we also review de novo. Klopfenstein v. Oklahoma Dept. of Human Serv., 2008 OK CIV APP 16, ¶ 8, 177 1996

P.3d 594, 596, citing Jackson v. Jackson, 2002 OK 25, ¶ 2, 45 P.3d 418. ANALYSIS ¶7 French was employed by the DOC in the “classified service,” 74 O.S. Supp. 2002 § 8405.11(A), and she was, therefore, subject to the jurisdiction of the Oklahoma Merit System of Personnel Administration. 74 O.S. Supp. 2002 § 840-1.3(6). A State agency may discharge a classified employee for “misconduct, insubordination, inefficiency . . . or any other just cause.” 74 O.S. Supp. 2005 § 840-6.5(C). An employee may appeal the agency’s decision to the MPC. Id. Section 840-6.5(C) provides, in part, that: Within twenty (20) calendar days after receiving the written notification provided for in this section, the employee may file a written request for appeal with the Oklahoma Merit Protection Commission. The Executive Director shall determine if the jurisdictional requirements provided for in this section have been met. If the jurisdictional requirements are not met, the Executive Director shall notify both the employee and the agency within five (5) calendar days after the receipt of a written appeal request. Such notice shall specifically describe the requirements that were not met . . . . The dispositive facts in this case are not disputed. French’s petition was placed in a mailbox within twenty calendar days of her receipt of notice of termination, but was not physically received by the MPC until 238 days after such notice. I. The DOC’s Motion to Dismiss ¶8 The Administrative Procedures Act (APA), 75 O.S.2001 §§ 250-327, authorizes judicial review of MPC decisions made pursuant to section 840-6.5(C). A. 1. Any party aggrieved by a final agency order in an individual proceeding is entitled to certain, speedy, adequate and complete judicial review thereof pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 323 of this title. 75 O.S.2001 § 318. The DOC based its jurisdictional argument on its contention that no “individual proceeding” was conducted in French’s case. The APA defines an individual proceeding as “the formal process employed by an agency having jurisdiction by law to resolve

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issues of law or fact between parties and which results in the exercise of discretion of a judicial nature.” 75 O.S.2001 § 250.3(7). See also State ex rel. Dep’t of Transp. v. Little, 2004 OK 74, n.23, 100 P.3d 707, 714 n.23; Cherokee Data Computer Parts and Serv., Inc. v. Oklahoma Dep’t of Labor, 2005 OK CIV APP 81, ¶ 9, 122 P.3d 56, 59. ¶9 The DOC relies on Stewart v. Rood, 1990 OK 69, ¶ 12, 796 P.2d 321, 327, arguing that a proceeding only becomes “individualized” after trial-type proceedings identified in sections 309-317 of the APA have occurred. We believe the process referred to in the definition for individual proceeding in the [APA] is spelled out at §§ 309-317 of that Act and these sections, by their terms, afford opportunity for a trial-type proceeding. .... In that § 318 only allows judicial review of final orders (including permits) in an individual proceeding we believe the Legislature intended such judicial review under the [APA] only when an opportunity is afforded for the trial-type proceedings spelled out in the [APA]. Id. at ¶ 17, 796 P.2d at 328. Stewart held that, because the procedures of sections 309-317 were not required when the Department of Health decided to issue or deny a solid waste facility permit, the resulting permit decision did not result from an individual proceeding.1 Other cases draw the same distinction — a proceeding is “individual” if the subject matter entitles the participants to the procedures specified in sections 309-317.2 ¶10 The DOC’s focus on whether the section 309 and 310 procedures occur in any given case is misplaced. The status of “individual proceeding” results if the subject matter of the proceeding grants a right to the section 309-317 procedures. It is not dependent on how many of those procedures are actually utilized. French’s case was an “adverse action appeal” filed pursuant to Oklahoma Administrative Code tit. 455, ch. 10, § 3-1.1 (OAC). Such proceedings are subject to the procedures identified in sections 309-317, and “individual” for the purposes of judicial review pursuant to section 318.3 Consequently, the MPC’s refusal to hear French’s appeal meets the statutory definition of an individual proceeding, and the district court had jurisdiction to hear French’s petition for judicial review. The DOC’s motion Vol. 81 — No. 24 — 9/11/2010

to dismiss on jurisdictional grounds should have been denied. II. French’s Petition for Review ¶11 Although the district court apparently dismissed French’s petition based on the DOC’s jurisdictional argument, dismissal in the district court would still be warranted if the MPC correctly found it lacked jurisdiction to decide the merits of French’s appeal. A. The Mailbox Rule ¶12 French argues, citing 12 O.S. Supp. 2002 § 990A(B)4, that the MPC had jurisdiction to consider the merits of her claim because her petition was placed in the mail before the 20-day filing period stated in section 840-6.5(C) expired, and was deemed filed on the date of mailing pursuant to the “mailbox rule.” Horvat v. State ex rel. Dep’t of Corrections, 2004 OK CIV APP 59, ¶ 14, 95 P.3d 190, 193 (approved for publication by the Oklahoma Supreme Court), holds that the section 990A mailbox rule applies to appeals to the MPC. However, Eagle Life Insurance Company, Inc. v. Rush, 1992 OK 78, ¶ 4, 832 P.2d 1224, 1224, found that the section 990A(B) requirement of “mailing by certified or first-class mail, postage prepaid” extends the benefit of the mailbox rule only to petitions mailed with sufficient postage. Because French’s petition was not mailed with sufficient postage, she cannot rely on section 990A(B).5 B. Discretion of the Executive Director ¶13 French further argues that the Executive Director has discretion to extend the 20-day filing deadline stated in 74 O.S. Supp. 2005 § 840-6.5(C). French relies on OAC tit. 455, ch. 10, §§ 3-2(a) and 3-1.1(1) to support this contention. However, neither section of the OAC provides that discretion. 1. Section 3-1.1(1) ¶14 Although section 3-1.1(1) of the OAC states that the Executive Director may extend the 20-day filing deadline “for other good cause shown,” section 3-1.1(1) applies only to “alleged violation appeals.” An alleged violation appeal involves: promotional issues, pay movement mechanisms or compensation issues, discipline issues (except discharge, suspension without pay and involuntary demotion), leave issues and the employee service rating system issues . . . . (Emphasis added).

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OAC tit. 455, ch. 10, § 3-3. This definition of an alleged violation appeal specifically excludes discharge, the reason for French’s termination. An appeal of a decision to “discharge, suspend without pay or involuntary demote” an employee is an “adverse action appeal” as defined in section 3-1.1(2). Consequently, section 3-1.1(2), not section 3-1.1(1), governs French’s appeal. Section 3-1.1(2) provides that adverse action appeals “shall be filed within 20 calendar days after receipt of the written notice of the action . . . .” Contrary to the discretion allowed by section 3-1.1(1), the section applicable to French’s appeal provides “[t]his is a statutory time limit and may not be extended.”6 2. Section 3-2(a) ¶15 French next argues that section 3-2(a) grants the Executive Director discretion to determine that an appeal meets the MPC jurisdictional requirements provided it was filed less than one year after the triggering event. Section 3-2(a) states: It is solely the authority of the Commissioners and Executive Director to determine whether or not matters being appealed are subject to the jurisdiction of the Commission. No request for appeal shall be accepted more than 12 months after the event causing the appeal, unless otherwise provided for by any statute. French argues that the Executive Director retains this discretion even if the appeal is an “adverse action appeal” subject to the 20-day filing deadline of section 3-1.1(2). The MPC rejected French’s interpretation of section 3-2(a). ¶16 An agency’s interpretation of its rules is controlling unless the interpretation is plainly erroneous, in conflict with constitutional or statutory law, or extends the agency’s power beyond that granted by the enabling statute. Estes v. ConocoPhillips Co., 2008 OK 21, ¶ 12, 184 P.3d 518, 524; Heiman v. Atlantic Richfield Co., 1995 OK 19, n.2, 891 P.2d 1252, 1256 n.2. ¶17 Further, although we deal here with provisions of the Administrative Code, “administrative rules are valid expressions of lawmaking powers having the force and effect of law.” Estes at ¶ 10, 184 P.3d at 523. Two principles of statutory construction support the MPC’s interpretation of section 3-2(a). First: The determination of legislative intent controls statutory interpretation. The intent is 1998

ascertained from the whole act based on its general purpose and objective. In construing statutes, relevant provisions must be considered together whenever possible to give full force and effect to each. Oklahoma Ass’n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶ 5, 901 P.2d 800, 803 (citations omitted). Second, “[T]he general rule is that nothing may be read into a statute which was not within the manifest intention of the legislature as gathered from the language of the act.” Stemmons, Inc. v. Universal C.I.T. Credit Corp., 1956 OK 221, ¶ 19, 301 P.2d 212, 216. Section 3-1.1(2) cannot be given full force and effect if the discretion granted in section 3-2(a) is imposed on the time limit required by section 3-1-1(2). Further, to interpret section 3-2(a) as authorizing the Executive Director to extend the time limit specified in section 3-1.1(2) would read into that statute language the Legislature did not see fit to include. This we will not do. Section 3-2(a) does not grant the Executive Director discretion to extend the 20-day filing requirement specified in section 3-1.1(2) for adverse action appeals. CONCLUSION ¶18 The MPC’s decision to dismiss French’s appeal for lack of jurisdiction because her petition for review was not timely filed was made in an individual proceeding as defined by 75 O.S.2001 § 250.3(7). Consequently, that decision was subject to review by the district court pursuant to 75 O.S.2001 § 318. However, the district court’s refusal to review the MPC decision does not constitute reversible error. “It is well settled that a correct judgment will not be disturbed on review, even when the trial court applied an incorrect theory or reasoning in arriving at its conclusion; an unsuccessful party cannot complain of trial court’s error when it would not have been entitled to succeed anyway.” Harvey v. City of Oklahoma City, 2005 OK 20, ¶ 12, 111 P.3d 239, 243. The MPC was correct in its determination that it had no jurisdiction to consider the merits of French’s adverse action appeal, because it was filed outside the 20-day statutory period. Therefore, the district court did not err in dismissing French’s Petition for Review, and that Order is affirmed. ¶19 AFFIRMED. WISEMAN, C.J., and BARNES, J., concur.

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1. The specific holding in Stewart is no longer controlling because subsequent statutory changes created a right to an individual proceeding in those circumstances. See DuLaney v. Oklahoma State Dep’t of Health, 1993 OK 113, ¶ 12, 868 P.2d 676, 682. 2. See Bird v. Willis, 1996 OK 116, ¶ 14, 927 P.2d 547, 550-51 (holding that because citizens protesting the award of a liquor license are not entitled by statute to an individual proceeding under the OAPA, they are not entitled to judicial review of the ABLE Commission’s actions in granting the license pursuant to section 318); Sharp v. 251st Street Landfill, Inc., 1991 OK 41, ¶ 6, 810 P.2d 1270, 1273 (holding that judicial review under section 318 is available when the Legislature intended individual proceedings to be conducted in a given decision). 3. This conclusion is consistent with our holding in Simington v. Oklahoma Dept. of Rehab. Serv., No. 106,820 (Okla. Civ. App., filed June 10, 2010). 4. “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.” 5. The MPC has its own administrative rule stating that a petition is considered filed either on the day it is postmarked, or the day it is delivered. OAC tit. 455, ch.10, § 3-2(b). However, this rule was not in force at the time French’s petition was mailed. Further, the postmark on French’s petition is dated July 2, 2007, approximately fifteen days after the deadline for French to file her MPC appeal. Therefore, even if applied retroactively, this rule does not save French’s petition. 6. The code section states as follows: 455:10-3-1.1. Time Time is jurisdictional. (1) Alleged violation appeal. Unless otherwise provided for by statute or the rules in this chapter, an alleged violation appeal shall be filed within 20 calendar days after the alleged violation occurs. The Executive Director may extend this time limit if the appellant demonstrates that he or she filed within 20 calendar days after becoming aware of, or with due diligence, should have become aware of the alleged violation, or for other good cause shown. For information on filing an appeal after a formal grievance see OAC 455:10-1946. (2) Adverse action appeal. An appeal of a permanent classified employee appealing a discharge, suspension without pay or involuntary demotion shall be filed within 20 calendar days after receipt of the written notice of the action imposed, by certified mail or personal service. This is a statutory time limit and may not be extended. [74:840-6.5(C)].

2010 OK CIV APP 72 LINDSEY K. SPRINGER, Plaintiff/ Appellant, vs. RICHARDSON LAW FIRM, RICHARD D. MARRS, E. DIANE HINKLE, and KEVIN D. ADAMS, Defendants/ Appellees. Case No. 106,227. June 25, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE LINDA G. MORRISSEY, JUDGE AFFIRMED Lindsey K. Springer, Tulsa, Oklahoma, Pro se. Wm. C. Hetherington, Jr., Judge: ¶1 Plaintiff Lindsey K. Springer (Appellant) appeals a trial court order in favor of Defendants Kevin Adams, Richard Marrs, Diane Vol. 81 — No. 24 — 9/11/2010

Hinkle, and The Richardson Law Firm (Law Firm) (collectively Appellees), which sustained their motions to dismiss Appellant’s defamation petition and which denied his motion to grant default judgment against Hinkle and Marrs. We AFFIRM. ¶2 As a preliminary matter, we note that Appellees did not file an entry of appearance or a response to any of Appellant’s petitions in error, as required by Okla.Sup.Ct.R. 1.5 and 1.25.1 Appellees did not file answer briefs, choosing instead to waive their right to do so pursuant to Okla.Sup.Ct.R. 1.105(a)(5). Consequently, this appeal will be submitted on Appellant’s brief only. Thomason v. Sears, 1998 OK CIV APP 66, ¶6, 957 P.2d 144, 145; and Taylor v. Payne, 1994 OK CIV APP 40, ¶17, 872 P.2d 953, 956. Under such circumstances, this Court is under no duty to search the record for a theory to sustain the trial court’s judgment if Appellant’s brief is reasonably supportive of the allegations of error. Bob Moore Cadillac, Inc. v. Proctor, 1999 OK CIV APP 12, ¶6, 975 P.2d 918, 920. If Appellant’s brief does not support the allegations of error, the trial court’s disposition will be affirmed. Id. ¶3 “The standard of review for an order dismissing a case for failure to state a claim upon which relief can be granted is de novo and involves consideration of whether a plaintiff’s petition is legally sufficient.” Fanning v. Brown, 2004 OK 7, ¶4, 85 P.2d 841, 844. When reviewing a motion to dismiss, we must take as true all of the pleading’s allegations together with all reasonable inferences which may be drawn from them. Id. “A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief.” Id. The party moving for dismissal pursuant to 12 O. S.2001 § 2012(B)(6) has the burden to show the legal insufficiency of the petition. Indiana National Bank v. State of Oklahoma, Dept. of Human Services, 1994 OK 98, 880 P.2d 371. ¶4 On April 22, 2008, Appellees filed a petition in Tulsa County District Court on behalf of their clients, Eddy and Judith Patterson, alleging, inter alia, legal malpractice, fraud, and deceit against several defendants, including Appellant. (Patterson Petition) Less than a month later, on May 2, 2008, Appellant filed a 145-page petition in the same district court against Appellees, attaching 10 exhibits to support fourteen “Counts,” the last of which states Appellees “individually and collectively, made

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false, fraudulent, libelous and slanderous public statements, against [Appellant], by naming [him] in a Complaint and placing at least 13 purported statements of truth that they each knew were not true, presented them collectively as true, to cause harm to [Appellant] and his mission and ministry.”2 (Emphasis added.) Service was obtained on Appellees. ¶5 On June 24, 2008, Appellee Adams, on his own behalf, filed a motion to dismiss Appellant’s May 2, 2008 Petition for failure to state a claim upon which relief can be granted pursuant to 12 O.S.2001 § 2012(B)(6), arguing an inspection of that petition reveals “the only alleged libelous statements” are those from the Patterson Petition, which publication is part of a judicial proceeding and therefore a privileged publication and exempt pursuant to 12 O. S.2001 § 1443.1 and Samson Investment Co. v. Chevaillier, 1999 OK 19, 988 P.2d 327. The next day, Appellees Marrs, Hinkle and Law Firm filed a brief in support of their joint § 2012(B)(6) motion to dismiss Appellant’s petition, claiming it was based solely on statements from the Patterson Petition which were privileged communications because they were made in the course of judicial proceedings and adopting all arguments made by Adams. ¶6 On July 8, 2008, Appellant filed responses to both § 2012(B)(6) motions3 and filed two separate motions seeking default judgment against Appellees Hinkle and Law Firm. By order filed September 24, 2008, the trial court granted Appellees’ motions to dismiss, without specific mention of its reason for doing so, and denied Appellant’s motion for default judgment. Appellant’s appeal followed. ¶7 “Libel is a false or malicious unprivileged publication by writing . . .” 12 O.S.2001 § 1441. “Slander is a false and unprivileged publication, other than libel . . .” 12 O.S.2001 § 1442. A privileged publication or communication is one made “in any legislative or judicial proceeding . . . “ 12 O.S.2001 § 1443.1. “In order to recover for defamation, a private figure must prove (1) a false and defamatory statement, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special damage, or the existence of special damage caused by the publication.” (Emphasis added.) Trice v. Burress, 2006 OK CIV APP 79, ¶10, 137 P.3d 1253, 1257. 2000

¶8 The issue of whether a communication is privileged is a question of law to be determined by the court. Samson Investment Co. v. Chevaillier, 1999 OK 19, 988 P.2d 327. The “litigation privilege” upon which Appellees rely “accords attorneys, parties, jurors and witnesses immunity for comments or writings made during the course of or preliminary to judicial or quasi-judicial proceedings.” (Emphasis added.) Id., ¶5. It applies “regardless of whether [the communications] are true or false.” Id., ¶8 (quoting Kirchenstein v. Hayes, 1990 OK 8, ¶18, 788 P.2d 941, 950). ¶9 The litigation privilege was applied to a petition drafted by the attorney in Samson preliminary to a judicial proceeding and to an affidavit prepared by the attorney in Kirchenstein preliminary to a quasi-judicial proceeding, because each communication and the circumstances surrounding each communication had some relation to the proposed proceedings. The Court in Pacific Employers Ins. Co. v. Adams, 1946 OK 86, 168 P.2d 105, also applied the litigation privilege to an allegedly libelous statement contained in a pleading which had been filed by a party in a judicial proceeding before the Workers’ Compensation Court, concluding the statement was pertinent to the question raised by the motion to discontinue compensation. ¶10 Based on our review of the May 2, 2008 Petition, it provides a stronger case for application of the litigation privilege to exempt Appellees from Appellant’s defamation action. All of the statements under each of Appellant’s 13 “Counts” are direct quotes from the April 22, 2008 Petition, which was published to initiate the judicial proceeding in Tulsa County District Court, and as in Samson, Kirchenstein, and Adams, we conclude the statements and the circumstances surrounding the statements are clearly relevant and/or pertinent to that judicial proceeding. ¶11 Consequently, we need not address Appellant’s interpretation-based and alternatively-plead constitutional argument he raised below. He presents no authority here for the proposition that 12 O.S.2001 §§ 1441, 1442, or 1443.1 are unconstitutional as to any constitutional provisions he cited below. Nor do we find Appellant’s brief reasonably supportive for reversal of the trial court’s denial of his motion for default judgment, considering Appellees Hinkle and Law Firm properly filed with Appellee Marrs a § 2012(B)(6) motion to dismiss Appellant’s petition. The trial court’s

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order denying Appellant’s motion for default judgment and dismissing the May 2, 2008 Petition for failure to state a claim upon which relief may be granted is AFFIRMED. Appellees Hinkle and Marrs’, Law Firm’s and Adams’ motions for sanctions in the form of appealrelated attorney fees are DENIED. BUETTNER, P.J., concurs. HANSEN, J., concurs in part, dissents in part: ¶12 I concur with the opinion and its reasoning and result. However, I would grant sanctions under 12 O.S. §15.1. 1. Appellees Marrs, Hinkle and the Law Firm did file a motion to dismiss Appellant’s Second Amended Petition-In-Error for failure to comply with several Supreme Court rules, which the Supreme Court denied by Order filed May 12, 2009. 2. Exhibit 10 of Appellant’s May 2, 2008 Petition establishes that each of Appellant’s thirteen “Counts” are direct quotes from the April 22, 2008 Petition’s “Facts Pertaining to All Claims” and each alleges Appellees “made false, fraudulent, libelous and slanderous public statements, against [Appellant], representing as fact on April 22, 2008…“ 3. The only exhibit attached to Appellant’s response is the April 22, 2008 Petition which was attached to Appellant’s petition as Exhibit No. 10.

2010 OK CIV APP 69 ANGELA HUDSON, Plaintiff/Appellant, vs. Jerry Fisher, an individual, and Richard Harris, d/b/a Harris Contractors, Defendants, MRI SPECIALISTS OF TULSA, Appellee. Case No. 106,901. June 11, 2010 APPEAL FROM THE DISTRICT COURT OF CHEROKEE COUNTY, OKLAHOMA HONORABLE MARK DOBBINS, JUDGE AFFIRMED Doak Willis, Tahlequah, Oklahoma, for Appellant, Michael R. Green, Tulsa, Oklahoma, for Appellees. Larry Joplin, Presiding Judge: ¶1 Plaintiff/Appellant Angela Hudson seeks review of the trial court’s order directing her attorney to refund a portion of his attorney’s fees to satisfy a claim by one of Plaintiff’s medical lien holders. Plaintiff challenges the trial court’s order as affected by errors of law and fact. ¶2 Plaintiff suffered injury in an automobile collision with the vehicle operated by Defendant Jerry Fisher, and owned by Defendant Richard Harris. For her injuries, Plaintiff received medical treatment from, inter alia, Appellee MRI Specialists of Tulsa (Appellee). Vol. 81 — No. 24 — 9/11/2010

¶3 Plaintiff subsequently employed attorney Doak Willis (Willis) to press her claim for tort damages against Defendants. Plaintiff agreed to pay Willis attorney fees of up to fifty percent (50%) of recovery. ¶4 The case proceeded to mediation, where the parties reached a settlement agreement. However, the amount of the settlement was insufficient to pay all medical claims and the full amount of the contingent fee. ¶5 Defendants subsequently filed a petition in interpleader, asserting their status as mere stakeholders of the settlement fund. The trial court granted interpleader and discharged Defendants. ¶6 Plaintiff then filed a Motion to Allocate the settlement proceeds between Appellee, ten other medical lien claimants, her previous attorney, and her current attorney, Willis. However, Willis failed to mail a copy of the motion to Appellee. ¶7 On May 16, 2008, the trial court conducted a hearing on the Motion to Allocate. Willis appeared for Plaintiff, and representatives of three other medical lien claimants also appeared, but Appellee did not. On Willis’s representation of proper notice to all claimants, and on consideration of the argument of those present, the trial court directed payment of $35,000.00 to Plaintiff, $35,080.63 in attorney’s fees to Willis, and the remainder to five medical lien holders. ¶8 On June 5, 2008, Appellee filed a motion to vacate, challenging validity of the allocation order for lack of notice to them. The trial court agreed with Appellee and vacated the earlier order. ¶9 Appellee then filed an Application for an order directing repayment of the funds previously distributed and a reallocation of the settlement proceeds. After a hearing, and by amended findings of fact and conclusions of law, the trial court held: Plaintiff Angela Hudson and her attorney, Mr. Doak Willis, were aware of the medical lien asserted by MRI Specialists of Tulsa against the settlement proceeds. Counsel for Plaintiff Angela Hudson, Mr Doak Willis, moved the Court for allocation of funds, pled to the Court and represented to the Court that he had given proper notice to all of the medical lien holder providers.

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Mr. Willis has admitted in open Court on several occasions that he failed to give adequate and proper notice to MRI Specialists of Tulsa, Inc., in the Motion to Allocate Funds or of the hearing date to distribute the settlement funds. .... Mr. Doak Willis represented to the Court that MRI Specialists of Tulsa, Inc., medical lien holder had been provided adequate notice pursuant to the Oklahoma Constitution. .... Mr. Doak Willis failed to provide adequate and proper notice to MRI Specialists of Tulsa pursuant to the Oklahoma Constitution and by presenting an Order Allocating Funds and Amended Order Allocating Funds representing to the Court that proper notice was given to MRI Specialists of Tulsa, Inc. prior to the distribution of the settlement funds. .... Mr. Doak Willis, by filing his Order Allocating Funds and Amended Order Allocating Funds caused the pleading to be filed which was a misrepresentation of the facts. The distribution of settlement funds to Plaintiff Angela Hudson without making provisions for the liens of MRI Specialists of Tulsa constitutes a wrongful payout of the settlement funds in derogation of their liens . . . Plaintiff Angela Hudson and her attorney, Mr. Doak Willis, are ordered to deposit $9,857 with the Court Clerk of Cherokee County, Oklahoma. This is consistent with the Court’s Order of October 30, 2008. This amount will satisfy the claims of those lien holders who were not given notice of distribution of funds. Plaintiff filed a motion to vacate, which the trial court denied. ¶10 Plaintiff now appeals. In seven propositions, Plaintiff challenges the trial court’s order as contrary to law, equity and the facts of this case.1 ¶11 “It is recognized that the right of interpleader is an equitable remedy[,] [a]nd, where the request for interpleader is approved the 2002

questions to be considered are equitable in nature.” Welch v. Montgomery, 1949 OK 80, ¶ 11, 205 P.2d 288, 290. In interpleader, where the proceeds of a settlement are insufficient to pay all valid claims, the trial court possesses the authority and discretion to apportion the settlement proceeds among the competing claimants. Burchfield v. Bevans, 242 F.2d 239, 241-242 (10th Cir. (Okl.) 1957). (Footnotes omitted.) ¶12 “When there are several competing claimants of whom it has timely knowledge, the agent . . . acts at its own peril when paying out the proceeds without interpleading all parties claimant in a proper action.” Shebester v. Triple Crown Insurers, 1992 OK 20, ¶21, 826 P.2d 603, 611. And, to the extent a medical provider possesses a protected property interest to receive payment for services rendered, the right to payment may not be terminated without notice. Baptist Medical Center of Oklahoma, Inc. v. Transcon Lines, 1993 OK 38, ¶20, 852 P.2d 139, 144. ¶13 A medical lien claimant clearly possesses such a protected property right. So, where an affected medical lien claimant receives no notice of the interpleader of settlement proceeds from which payment for the medical treatment should be made, we hold the trial court possesses the equitable authority and discretion to vacate the previous division, recapture funds previously paid out, and affect a new division of the settlement proceeds as is just and reasonable. ¶14 In the present case, Willis’s attorney’s lien is superior only to funds in which junior lienholders have no interest. 24 O.S. 1991 §4; Fugate v. Mooney, 1998 OK CIV APP 48, ¶5, 958 P.2d 818, 819; In re Martin, 1994 OK 48, ¶17, 875 P.2d 417, 420. In the present case, there is only one fund in which all the lien claimants are entitled to a share. Willis’s attorney’s lien claim is not superior to the claims of the medical lien claimants. ¶15 Further, Willis confessed he did not adequately notify Appellee of his Motion to Allocate, and the trial court held Willis misrepresented the adequacy of notice given to Appellee. For lack of notice, Appellee was deprived of its right to appear and assert its claim to a portion of the settlement proceeds. The rights of Appellee could not be terminated without notice. ¶16 Given this lack of notice, we hold the trial court, in the proper exercise of its equita-

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ble powers, vacated the initial division, and recaptured the funds previously paid out to Willis as attorney’s fees to satisfy the claim of Appellee. Having reviewed the record, and under the circumstances of this case, we cannot say the trial court abused its discretion. ¶17 The order of the trial court is AFFIRMED. Appellee’s request for attorney’s fees under 20 O.S. 2001 §15.1 is denied. MITCHELL, J., concurs. ROBERT DICK BELL, V.C.J., concurs in part and dissents in part: I think Appellee’s request for attorney fees is appropriate in this case. 1. In the first proposition, Plaintiff argues that, by force of 5 O.S. §46, Willis’s claim for attorney’s fees is superior to the lien claim of any of Plaintiff’s medical providers, and, in the seventh proposition, Plaintiff argues that MRI Specialists never proved the filing and attachment of their lien as required by 42 O.S. §46. In the second proposition, Plaintiff argues the trial court abused its discretion in refusing to vacate the order directing Willis’s repayment of a portion of the attorney’s fee previously distributed to him. In the third and fourth propositions, Plaintiff argues her attorney has no legal duty or responsibility to pay off all her medical providers. In the fifth proposition, Plaintiff argues the evidence demonstrated MRI Specialists received the court’s notice of hearing on the motion to allocate but nevertheless failed to appear, and therefore suffered no remediable denial of a share of the settlement proceeds. In the sixth proposition, Plaintiff asserts the trial court erred in granting relief to MRI Specialists in the full amount of the claim, exceeding MRI Specialists’s request for only an equitable apportionment. In the eighth, ninth and tenth propositions, Plaintiff challenges the trial court’s orders as contrary to Oklahoma law, principles of equity, and the weight of the evidence.

2010 OK CIV APP 65 HECTOR HERNANDEZ and TONYA GOESCH, Plaintiffs/Appellees, vs. ROY D. REED and DIANA L. REED, Defendants/ Appellants, and COUNTRYWIDE HOME LOANS, INC., Third Party Defendant/ Appellee. Case No. 106,514. May 21, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE LINDA G. MORRISSEY, JUDGE AFFIRMED IN PART AND REVERSED IN PART William H. Castor, Broken Arrow, Oklahoma, for Appellants, James C. Hodges and Rebecca Wood Hunter, Tulsa, Oklahoma, for Appellees, Grant A. Schwabe, Tulsa, Oklahoma, for Appellee/Third Party Defendant. Larry Joplin, Presiding Judge: Vol. 81 — No. 24 — 9/11/2010

¶1 Appellants, Roy and Diana Reed, seek review of the trial court’s decision quieting title to a disputed eight-foot strip of land in Appellees, Hector Hernandez and Tonya Goesch. Appellants also seek review of the trial court’s attorney fee award under 12 O.S. 2001 §1141.5(A)(4), contending the trial court erred as a matter of fact and law. ¶2 Appellants and Appellees live in Tulsa, Oklahoma, where their respective lots back up to one another. Appellants have owned lot nine since 1974 and Appellees have owned lot fourteen since 2001. At the back of the property line for each house’s lot, there exists a utility easement. The easement overlays the back of the property for a distance of five feet on both lots fourteen and nine, making a total easement width of approximately ten feet. An additional 3.4 feet beyond the easement into the Appellees’ property (lot 14), there is a chainlink fence which serves to fence in and enclose the Appellees’ yard. The chainlink fence cuts off the back 8.4 feet of Appellees’ platted lot, leaving the back portion of lot fourteen that backs up to Appellants’ lot nine cut off from the enclosed portion of Appellees’ yard. ¶3 The disputed 8.4 foot strip of property rests within what may best be described as an alleyway. The back lot area of this block and the adjoining block were developed in such a way as to provide an alleyway of sorts running through and along the back of the properties. This “alley” runs roughly along with the easement area, where most yards seem to end prior to the end of the lot line, allowing access to the area behind the homes, corresponding essentially to the easement width. Various encroachments into the alleyway of Appellants/Appellees’ block now make it largely impassable. ¶4 On June 29, 2006, Appellees’ counsel sent a letter to Appellants asking that Appellants cease and desist further use of the unenclosed portion of Appellees’ lot, situated on the east side of the chainlink fence. On August 18, 2006, Appellees followed up the June 29th letter with a letter to Appellants’ counsel explaining Appellees had permitted Appellants’ use of the property, but recent use by Appellants was unacceptable, Appellants’ claims of entitlement by prescriptive use were unfounded and Appellees requested Appellants immediately sign an enclosed quit claim deed in order to remove any potential cloud on Appellees’ title.

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¶5 Appellees filed their initial petition to quiet title in the district court on August 21, 2006. Appellants denied Appellees’ claims, claiming title themselves by adverse possession and boundary by acquiescence. The trial court conducted a trial on the parties’ claims and ultimately quieted title to the disputed tract in Appellees. From this order Appellants bring this appeal.1 ¶6 A quiet title action is an action of equitable cognizance. Olsen v. Jones, 1966 OK 48, 412 P.2d 162, 167. The appellate court must examine the trial court’s decision quieting title in one of the parties to determine if the trial court’s judgment is against the clear weight of the evidence. Hinds v. Johnson, 2009 OK CIV APP 54, 211 P.3d 236, 239. ¶7 The record reveals and the parties stipulated that record title to the disputed 8.4 foot strip of property lies with Appellees. Thus, Appellants’ adverse possession claim requires that every element of possession be supported by clear, positive and convincing proof and every presumption lies in favor of the record owner of the land. Francis v. Rogers, 2001 OK 111, 40 P.3d 481, 486. Adverse possession claims are disfavored and not to be made by inference. Id. Adverse possession requires clear and positive proof of all its constituent elements, possession which has been 1) actual, 2) open, 3) notorious, 4) exclusive, and 5) hostile for the 6) full statutory prescriptive period of fifteen years. Mason v. Evans, 1965 OK 173, 410 P.2d 534, 540-41. ¶8 Appellants presented their case primarily through the testimony of Appellant, Roy Reed. Reed testified the chainlink fence, which sits 8.4 feet into lot fourteen and divides his yard from Appellees, has been in its present location since 1974. Appellants assert they maintained the area on the east side of the chainlink fence, treating it as their yard, while the Appellees and previous owners of lot fourteen treated the area on the west side of the chainlink fence as the yard for lot fourteen. Reed cleared the disputed area, mowed, cleaned up the trees, and maintained a garden for several years. He also constructed a dog pen in the disputed area, which was dismantled and rebuilt on several occasions as needed. Appellants submitted photographs dating to the mid and late 1970’s which illustrated the placement of the chainlink fence. Many of these photos showed how Appellants used the disputed area, several pictures showed playground equipment, Appellants’ children 2004

playing and flower beds maintained around trees with the lawn neatly mowed. ¶9 Appellants assert Oklahoma law provides that adverse possession need not be for the period immediately preceding suit and title by adverse possession can ripen at any time prior to suit and still be sufficient to vest title. As a result, Appellants claim that due to the placement of the chainlink fence, they came to own the disputed area in March 1989, fifteen years after their ownership of lot nine commenced and twelve years before Appellees owned their property in 2001. ¶10 Appellees counter that Appellants did not exercise exclusive and hostile control of the disputed area. The disputed area was never fully enclosed or fenced by Appellants. Appellees presented witnesses who described having access through the alleyway, throughout the time-frame Appellants claim to have exercised exclusive control of the disputed area. Appellee Goesch and various neighbors testified that access to the disputed area and through the alleyway between lots fourteen and nine was open and unobstructed until quite recently. Goesch testified she used the disputed area behind her own home in 2001 or 2002 to gain access to phone lines and make a repair. She walked the alleyway from the disputed area to the main thoroughfare at the south end of the block with a large ladder and did not encounter obstructions, nor did she see evidence of Appellants’ exclusive control of the alley area between lots fourteen and nine. ¶11 Goesch also described an incident involving Appellant, Roy Reed, wherein he used bolt cutters to cut through a lock and chain on the gate of the chainlink fence. Reed then placed a new lock on the fence and gave a key to Goesch. ¶12 One neighbor who lived in the area for over thirty years walked her child to school in the mid to late 1970’s, using the alleyway behind lots fourteen and nine. This same witness also described public service and city vehicles easily using the unobstructed area behind lots nine and fourteen. ¶13 Another witness testified that until recently, the alleyway for the block at issue was virtually identical to the still open alley on the adjoining block. There were no fences blocking one’s ability to travel behind the properties. This witness indicated she was familiar with the open nature of the alleyway during the

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1980’s through the late 1990’s. She said children biked through the area, played and often walked to school. The lot line area between lots nine and fourteen was open and accessible to neighbors and the like throughout Appellants’ ownership. ¶14 Appellees also offered testimony that another neighbor, other than Appellants, maintained at least part of the disputed area during the time Appellants claim the property was under their exclusive control. ¶15 Appellees point out that Appellants are not the record owners of this property and have never paid taxes on the disputed strip of land. Instead, Appellees and their predecessors in title paid the taxes. While failure to pay taxes is not absolutely fatal to one’s adverse possession claim, a failure to pay taxes weakens a claim of ownership. Anderson v. Francis, 1936 OK 312, 57 P.2d 619, 621. ¶16 The record supports Appellees’ position that Appellants never completely enclosed the disputed tract. Throughout the 1970’s, 1980’s, 1990’s and as late as 2001, Appellants’ neighbors, including Appellees, traversed the disputed area. Appellants’ use of the area seems to have changed throughout, sometimes there were dog pens in the disputed tract, sometimes flowerbeds or playground equipment, sometimes not. The fixtures Appellants built and erected in this area were not constant. As a result, the bulk of Appellants’ claim of possession rests on their general upkeep and installation of the landscaping details, tending to the lawn, planting flowers and taking care of the trees, basically treating the back of lot fourteen as their property. Appellants do not point to any fixtures or more permanent attachments in support of their prescription claim. ¶17 The Oklahoma Supreme Court has held that landscaping, which involved leveling dirt, establishing a lawn and erecting a fence, could support a hostile and adverse possession claim. Norman v. Smedley, 1961 OK 143, 363 P.2d 839, 844. However, Appellants never effectively enclosed the disputed area in this case, as witnesses testified to navigating the unobstructed alley for the better part of the last forty years. This common access to the disputed tract, by Appellees, neighbors, children and city vehicles erodes Appellants’ claims of hostile, exclusive and notorious possession of the disputed area. ¶18 Cutting the lock and then providing Appellee Goesch a key, effectively giving her Vol. 81 — No. 24 — 9/11/2010

unfettered access through her gate to the disputed tract, is problematic for Appellants’ adverse possession claim as well. This accommodating behavior is not compatible with a hostile claim of right against Appellees. Appellants dismiss this incident, arguing they assumed ownership of the disputed tract in 1989 and therefore already owned it before bolt-cutting and opening the gate. ¶19 Ultimately, Appellants’ 1989 ownership claim does not reconcile with their ever-changing ebb and flow of influence over this eightfoot strip, with fixtures that came and went and pieces of fence that never quite encircled the disputed property. In this case, open, notorious, exclusive and hostile possession was not supported by clear and positive proof. Francis, 40 P.3d at 486. “The moment the possession is broken it ceases to be effectual, because as soon as, and as often as, a break occurs the law restores the constructive possession of the owner.” Mason, 410 P.2d at 541. It was Appellants’ burden to satisfy each element of possession in support of their claim. Mason, 410 P.2d at 540. Appellants presented evidence they treated and thought of this area as their own yard. However, the boundaries were porous and Appellants’ actions were at times ambiguous, clear and positive proof was lacking. ¶20 The record supports the trial court’s decision which found Appellants never quite exercised exclusive control of the disputed area. Giving Appellee a key to the gate provided the trial court additional evidence that Appellants’ possession was more tentative than adverse possession requires. ¶21 Appellants also claimed Appellees were precluded from claiming the chainlink fence was not the boundary line separating the properties, arguing they established the existence of the boundary fence in its present location since 1974 and were therefore entitled to the property by virtue of boundary by acquiescence. In Lewis v. Smith, 1940 OK 276, 103 P.2d 512, the Supreme Court made the following observation: It is well established that if adjoining landowners occupy their respective premises up to a certain line which they mutually recognize and acquiesce in for a long period of time ... usually the time prescribed by the statute of limitations ... they are precluded from claiming that the boundary

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line thus recognized and acquiesced in is not the true one. Eubanks v. Anderson, 2008 OK CIV APP 13, 178 P.3d 872, 875-76 (citations in original). ¶22 In Lewis, the court concluded four factors were sufficient to establish title by acquiescence: “(1) the division of a unit of land; (2) the running of a fence between the divided portions of the unit deviating from the true line as established by government survey; (3) the continued maintenance of the fence for [the prescriptive period]; and (4) the use by the respective parties of the land lying on their respective sides of the fence only.” Lewis, 103 P.2d at 514. ¶23 Appellants presented evidence they cared for the disputed tract as if it was their own. However, Appellees presented evidence of their own use of the disputed area and claimed Appellants’ use was only by virtue of their permission and good graces. At the same time, there was evidence the disputed area was never enclosed by Appellants and a constant stream of access to the area was available throughout Appellants’ ownership of lot nine. Therefore, Appellants needed to cobble together fifteen years of evidence that they and owners of lot fourteen acquiesced in the chainlink fence boundary for a consecutive fifteen year period. Based on the record available, Appellants failed to do this. ¶24 It is also worth noting that the gate in the chainlink fence indicates previous owners of lot fourteen had access to and perhaps maintained access to the disputed area, again complicating Appellants’ required proof. ¶25 Prescriptive claims are disfavored. Francis, 40 P.3d at 486. This court cannot infer from the evidence available in this record that Appellants enjoyed an uninterrupted fifteen year reign over the east side of the chainlink fence. We find the trial court’s judgment quieting title to this disputed strip of land in Appellees, the record owners of lot fourteen, is not against the clear weight of the evidence.2 ¶26 We must also examine the trial court’s attorney fee award. Upon Appellees’ application for attorney fees, the court awarded $10,000.00 in fees. Appellees argued their fees were awarded as a matter of course, pursuant to 12 O.S. 2001 §1141.5.3 ¶27 Appellants’ argument against the award of attorney fees has two distinct components. 2006

First, Appellants claim the Nonjudicial Marketable Title Procedures Act simply does not apply where the claim to land is based on adverse possession and attorneys fees cannot be awarded under §1141.5 for such prescriptive claim cases. Second, if in the event the act does apply to adverse possession cases, Appellants assert the notice provided by Appellees in satisfaction of the strict notice requirements outlined in 12 O.S. 2001 §1141.5 was insufficient. ¶28 Section 1141.3 provides: A. Any person or any entity having an interest or claiming an interest with respect to any parcel of real property who in good faith asserts that there is an instrument filed in the real property records of the county in which the real property, or some portion of the real property, is located and who would otherwise be required to file a quiet title action with respect to the parcel pursuant to the provisions of Section 1141 of Title 12 of the Oklahoma Statutes, may use the procedures authorized by this act to attempt to remove a cloud or an apparent cloud on the title of the real property by requesting a respondent to prepare a curative instrument or to take corrective action. 12 O.S. 2001 §1141.3(A) (emphasis added). The statute clearly applies where there is an instrument filed that clouds or casts an “apparent cloud” on one’s title to real property. The existence of the offending instrument is the key to application of §1141.3 and the corresponding attorney fees that are available under §1141.5. ¶29 Appellees’ notice did not include references to an offending instrument, because such an instrument did not exist in this case. Appellees claim Head v. McCracken, 2004 OK 84, 102 P.3d 670 and Stump v. Cheek, 2007 OK 97, 179 P.3d 606 support their proposition that fees can be sought under §§1141.3 and 1141.5 for adverse possession claims. However, neither Head nor Stump stand for the proposition that §1141.5 attorney fees can be awarded in adverse possession cases. Head dealt with a title defect created by an easement against a servient estate. An award of attorney fees was denied in large part, because the easement which the court ultimately granted was significantly narrower than the one the dominant estate holder had requested in his notice. In Stump, the court held that a prevailing party could recover attorney fees for correcting a cloud on title where the underlying quiet title action arose from a judgment.

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¶30 Exceptions to the American Rule are narrowly defined. Stump, 179 P.3d at 612-13. “For an award of attorney fees to be authorized under a particular statute, the authorization must be found within the strict confines of the statute.” Id. at 613. This court must read the statute providing for attorney fees narrowly and a suit to determine the validity of an adverse possession claim is not contemplated within the attorney fee provisions outlined in §1141.5. The trial court’s attorney fee award is reversed. ¶31 For the reasons herein provided the judgment of the trial court is AFFIRMED with respect to the trial court’s judgment quieting title to the disputed property in Appellees and REVERSED with respect to the trial court’s attorney fee award. BELL, V.C.J., AND MITCHELL, J., concur. 1. Appellants November 14, 2008 petition in error was filed prior to the trial court’s March 27, 2009 order awarding Appellees’ attorney fees. Appellants amended their petition in error on April 7, 2009 to include the attorney fee award order and the corresponding errors alleged with respect to that order. 2. Countrywide Home Loans, Inc. holds the mortgage on lot fourteen. Countrywide was a third-party defendant in the proceedings below and is an Appellee in this appeal. Because this court has found the trial court’s decision quieting title in Appellees was not against the clear weight of the evidence, Appellants’ argument that they acquired title to the disputed tract prior to the imposition of the Countrywide mortgage is moot. 3. 12 O.S. 2001 §1141.5(A)(4): A. If a requestor prepares a notice pursuant to Section 3 of this act, and: ... 4. The respondent receives the notice and refuses to take the action requested in the notice, then in the event that the requestor files an action to quiet title to the subject parcel pursuant to Section 1141 of Title 12 of the Oklahoma Statutes, and the civil action results in a judgment for the plaintiff which could have been accomplished through the execution and delivery of a curative instrument or the taking of corrective action identified in a notice, the plaintiff in the quiet title action, in addition to any other requested relief, shall be entitled to recover damages equal to the actual expenses incurred by the plaintiff in identifying the relevant instrument, preparing the notice to the respondent pursuant to Section 3 of this act, and the expenses of litigation directly related to obtaining judgment quieting title in the plaintiff with respect to the interest or apparent interest forming the basis of the action against the respondent, including costs and reasonable attorney fees.

2010 OK CIV APP 67 KEITH MARGERISON and ROBERT McCULLOUGH, Plaintiffs/Appellants, vs. Vol. 81 — No. 24 — 9/11/2010

CHARTER OAK HOMEOWNERS ASSOCIATION, Defendant/Appellee. No. 107,843. May 21, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE MARY FITZGERALD, JUDGE REVERSED AND REMANDED Mary R. Bundren, BUNDREN LAW FIRM, Tulsa, Oklahoma, and Jonathan C. Neff, Tulsa, Oklahoma, for Plaintiffs/Appellants, Grant R. Cheadle, CHEADLE & ASSOCIATES, INC., Tulsa, Oklahoma, for Defendant/Appellee. Kenneth L. Buettner, Presiding Judge: ¶1 Plaintiffs/Appellants Keith Margerison and Robert McCullough appeal summary judgment entered in favor of Defendant/Appellee Charter Oak Homeowners Association. Appellants and Association both sought summary judgment declaring whether Appellants’ gates could remain in a fence Association installed along its fencing easement on Appellants’ properties. The record on appeal shows disputed material facts on the issues of waiver and estoppel. We therefore reverse and remand for further proceedings. ¶2 Appellants’ lots in the Charter Oak Addition in Tulsa were burdened with an easement reserved by the Association. When Appellants purchased their properties, the easement contained a fence enclosing the perimeter of the addition, and the fence included gates on Appellants’ lots which afforded access to a public park behind the addition. Appellants asserted that when the Association announced plans to replace the perimeter fencing, Margerison sought to replace the existing gate on his lot at his own expense. The Association approved his request in May 2008, and Margerison replaced the gate in September 2008. However, in January 2009 the Association demanded that Margerison remove the new gate. The Association later met and voted to remove all gates in the Association’s fence. Appellants sought a judgment declaring they had a property interest in their gates and the Association did not have authority to demand removal of the gates; Appellants also sought an injunction against removal of the gates. ¶3 In its Answer, the Association responded that it possessed an exclusive easement granted in the original plat and deed of dedication.

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The Association also asserted that its Board’s action of granting permission to Margerison to replace the gate on his lot was made without authority. The Association asserted it was revoking any license granted by giving Margerison permission to install a replacement gate. The Association argued that the gates constituted violations of its rules and bylaws. ¶4 In seeking summary judgment, the Association listed 37 statements of undisputed facts. Appellants responded, disputing about half of the Association’s asserted facts.1 Appellants also sought summary judgment in their favor, and they listed 22 statements of undisputed facts.2 The deed of dedication provides: 9. Grantor hereby grants to [Association] an easement, of the varying width shown on the accompanying plat, on all perimeter lots . . . for the several purposes of constructing, maintaining, altering, repairing, removing and replacing retaining and screening walls, fences, and landscape materials on the exterior side thereof, with the right of ingress and egress in and to said easements for the uses and purposes aforesaid. The Third Amendment of Declaration of Covenants, Conditions and Restrictions, dated July 2, 1990, provides: Section 4. Fencing. (a) Perimeter Fencing or Walls. Within the Deed of Dedication of Charter Oak there has been heretofore established for the benefit of the Association a perpetual easement upon the perimeter of Charter Oak for the purposes of the erection, installation, and maintenance of security and entry facilities, decorative fencing, walls, and landscaping. The maintenance of the perimeter … fencing … shall be the obligation of the Association. The perimeter easement of the Association shall be deemed exclusive, and no individual lot owners shall construct any fence or wall within the perimeter easement area or within 10 feet of the perimeter boundary line of Charter Oak, unless the proposed fence or wall shall have first been approved in writing by the Association. ¶5 The trial court entered summary judgment in favor of Association January 6, 2010. The trial court found that the developer of the addition assigned an exclusive easement to the 2008

Association for the purposes of creating a limited access gated community. The court cited authority that easements may not be enlarged by implication. The trial court further held that there was no issue of fact as to waiver or acquiescence because the fifteen year adverse possession period had not run. The court lastly held that “any claim to create private rights in the common element of the fence is not permitted by any of the foundation [Association] documents.” The court lifted the injunction against the Association’s planned removal of the gates. ¶6 Summary judgment proceedings are governed by Rule 13, Rules for District Courts, 12 O.S.2001, Ch. 2, App.1. Summary judgment is appropriate where the record establishes no substantial controversy of material fact and the prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group, 1999 OK 7, 976 P.2d 1043, 1045. Summary judgment is not proper where reasonable minds could draw different inferences or conclusions from the undisputed facts. Id. Further, we must review the evidence in the light most favorable to the party opposing summary judgment. Vance v. Fed. Natl. Mortg. Assn., 1999 OK 73, 988 P.2d 1275. ¶7 The summary judgment record shows a dispute of fact on whether the Association is estopped from demanding removal of the gates after acquiescing in their existence in the fence for a number of years and after expressly granting Margerison permission to replace the gate on his lot. Exhibit 4 attached to Appellants’ summary judgment motion was the affidavit of Margerison’s predecessor in title, John Easley, who averred that he installed the gate in the fence in 1997 with permission of the Association and that the Association did not object to the gate between 1997 and August 2003, when Easley sold the property to Margerison. Appellants’ Exhibit 6 was the affidavit of Tom King, who stated that he replaced the perimeter fence on Lot 10 in the addition in 2003. At the same time, he installed a gate in the fence on that lot, which McCullough later purchased. King also asserted that after he installed the fence and gate, the Association’s treasurer informed him the Association would reimburse him for the cost of replacing the fence. King asserted that no one from the Association raised an objection to the gate. ¶8 The trial court erred in basing its decision on the 15 year limitations period for boundary

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by acquiescence. The issue is whether the Association acquiesced in the gates being part of the fence within the unchallenged-easement. Appellants have not claimed that the easement was lost by the existence of the gates for the prescriptive period, nor have Appellants claimed the easement itself was extinguished by estoppel.3 Instead, the evidence shows the parties dispute the material fact of whether the Association is estopped from removing the gates by its acquiescence in their installation and presence in the fence. The Restatement (Third) of Property (Servitudes) (2000) provides for a change to an easement based on estoppel. Section 7.6, Modification Or Extinguishment By Estoppel, provides: A servitude is modified or terminated when the person holding the benefit of the servitude communicates to the party burdened by the servitude, by conduct, words, or silence, an intention to modify or terminate the servitude, under circumstances in which it is reasonable to foresee that the burdened party will substantially change position on the basis of that communication, and the burdened party does substantially and detrimentally change position in reasonable reliance on that communication. The Oklahoma Supreme Court has recognized that “(a)cquiescence involves a quiet submission or compliance with acts from which assent can reasonably be inferred. A person may, through long acquiescence in a practice or recognition of a right, be precluded from denying the legality of the actions taken.” Smith v. Baptist Foundation of Oklahoma, 2002 OK 57, ¶10, 50 P.3d 1132 (footnotes omitted). ¶9 The evidentiary materials show a dispute as to whether the Association acquiesced in the existence of the gates. Even in the absence of such acquiescence, the evidence also shows a dispute of fact whether the Association acted within its authority to grant permission to Margerison to install the replacement gate in 2008.4 ¶10 Finally, the evidence shows a dispute of material fact as to whether the presence of the gates constituted an unreasonable burden on the Association’s use of the easement. A servient tenant may make reasonable use of his property burdened by an easement, so long as such use is not inconsistent with the dominant tenant’s rights under the easement. We again recognize the Restatement (Third) of Property (Servitudes) (2000), in which § 4.9, Servient Vol. 81 — No. 24 — 9/11/2010

Owner’s Right To Use Estate Burdened By A Servitude, provides: “(e)xcept as limited by the terms of the servitude determined under § 4.1, the holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the servitude.” (Emphasis added). Comment c to that section explains that the servient tenant “is entitled to make all uses of the land that are not prohibited by the servitude and that do not interfere unreasonably with the uses authorized by the easement.” Additionally, “(b)arring an agreement to the contrary, the owner of the servient estate may use his or her property in any manner and for any purpose consistent with the enjoyment of the easement.” 28A CJS Easements §222. Whether the use planned by the servient tenant (Appellants) is unreasonable or inconsistent with the rights of the Association in the easement is a question of fact. U.S. v. O’Block, 788 F.2d 1433, 1435 (10th Cir. 1986). Factors to be considered in deciding the question include the intent of the original parties, the language in the deed of dedication, and the construction or practice of the parties. Id. ¶11 The record shows disputed material facts and we therefore REVERSE AND REMAND for further proceedings. HETHERINGTON, J., concurs, and HANSEN, J., dissents with opinion. 1. Appellants disputed the following statements of fact (we have omitted repetitive statements of fact in the Association’s motion): 5) the PUDs and Deeds of Dedication conveyed a 3 foot exclusive easement for fencing and landscaping to the Association (Appellants disputed the easement was exclusive); 8) there is no proof Margerison’s predecessor in title had authority to install a private gate on his lot; 9) there has never been a vote of Association members consenting to privatizing any gates or access through the common areas or common elements; 14) there is no proof that McCullough’s predecessor in title had authority to install a private gate; 17) neither the By-Laws nor restrictive covenants grant the Board authority to approve installation of gates in the northern perimeter fence; 19) the Association has an exclusive easement of three feet for landscaping and fencing along the northern perimeter of the addition; 20) Margerison did not have votes of the majority then present approving of his request to install a replacement gate; 23) none of the gates installed in the northern perimeter fence fall within the scope of the one listed exception to Association’s easement, and therefore the gates are in conflict with the intent to limit access and with the terms of the easement; 24) neither the Board nor Appellants have authority to alter the terms of the easement granted to the Association or the authority to grant private access to the addition through common elements; 28) in May 2008, Margerison petitioned the Board to allow him to install a new gate in the perimeter fence (Appellants asserted the gate was a replacement gate, rather than a new gate); 30) the Board lacked authority to alter the easement, and the vote to allow Margerison to replace the gate was not made by a majority of the Directors present and did not grant Margerison the right to install a gate; 33) in October 2008, portions of the perimeter fence were replaced, including the part with the gate at issue, and sometime later that month Margerison had a new gate installed in the new fence; 34) the Association owns the perimeter fencing and all gates in the fence; and

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35) Margerison agrees that the Board may remove gates from the perimeter fence at any time. 2. The Association disputed Appellants’ assertions of fact as follows: 3) the gate on Margerison’s property was installed in 1997 by his predecessor in title, John Easley, with the Association’s permission; 7) the Association has for years acquiesced in the existence of the gates on Appellants’ properties; 8) a major factor in Appellants’ decisions to buy their properties was gate access to the park, which constitutes a significant part of their use and enjoyment of their properties; 9) gate access to the park enhances the value of Appellants’ properties; 12) the Association granted Margerison’s request to replace the gate on his property May 19, 2008; 13) in October, 2008, in reliance on the Association’s grant of permission, Margerison installed a replacement gate in the fence, with security enhancements, at his own expense; 17) after the Association announced it voted to remove all gates in its fence, Appellants requested that the gates remain until a court resolved the dispute; 18) by a June 17, 2009 email, the Association denied Appellants’ request not to remove the gates pending suit; 19) after the Association denied the request to stay removal, Appellants obtained a temporary injunction to prevent removal of the gates; 21) at a June 26, 2009 hearing, a representative from the Association stated that security in the addition is not an issue in this case; and 22) also at that hearing, the Association’s president admitted that there is no emergency with respect to the gates. 3. Section 505 of the Restatement (First) of Property (Servitudes) (1944) provides: An easement is extinguished when action is taken by the owner of the servient tenement inconsistent with the continued existence of the easement, if (a) such action is taken in reasonable reliance upon conduct of the owner of the easement; and (b) the owner of the easement might reasonably have foreseen such reliance and the consequent action; and (c) the restoration of the privilege of use authorized by the easement would cause unreasonable harm to the owner of the servient tenement. Comment: a. Rationale. The owner of an easement is not permitted to change a position once taken by him if the change would work undue prejudice to the owner of the servient tenement. It is not essential that the owner of the easement shall have made, intentionally or otherwise, any misstatement of fact. It is necessary only that he shall have led, under circumstances such that he may properly be held responsible for having done so, the owner of the servient tenement into some action inconsistent with the continued existence of the easement, such action being taken under the reasonable belief that it was not inconsistent with any claim of a privilege to use which would thereafter be made under the easement. It is apparent that there is here found a liberal application of the principles of estoppel. In many cases in other situations an estoppel arises only through reliance upon a misrepresentation of a present or past factual situation. The person estopped must have caused, in such a way that he is responsible for having done so, the person claiming the benefit of an estoppel to believe something to be true which is not true. In cases covered by this Section, however, an estoppel may arise upon a representation as to the future alone. Thus, if the owner of an easement acts as though he has no intention to make in the future the use authorized by the easement, he may become estopped to make such a use if the owner of the servient tenement acts in reliance upon the intention indicated. The liberality of the doctrines of estoppel in this connection indicates the influence of notions of social policy having especial significance here. That social policy originates in the feeling that unused easements constitute objectionable encumbrances upon the title to the land subject to them and obstructions to its development. Out of this feeling there arises an attitude favorable to their extinguishment. The result is that the law has developed rules favorable to the accomplishment of that end. If such rules develop from the application of doctrines which are also applicable to other fields, they may well be more liberal than rules developed in the application of those doctrines in at least some of such fields. *** g. Extent of extinguishment. The extinguishment of an easement by estoppel may be complete or partial. The conduct of the owner of the easement may be such as to estop him either from claiming a part only of the privileges enjoyed or from claiming any of them. The action taken in reliance upon the conduct of the owner of the easement may

2010

similarly be so extensive or so limited as to warrant either an estoppel against any claim to a future use under the easement, or an estoppel against only some of the claims which may be made to a continuance of the uses formerly privileged. Again, the harm resulting to the owner of the servient tenement from the restoration of the privileges authorized by the easement may be such as to warrant the refusal to restore any of them or it may be only sufficient to make it reasonable to refuse to restore part but not all of them. 4. The record on appeal includes the minutes of the Association’s May 2008 Board meeting. Four of the five Board members were present, including Margerison, who abstained from the voting. Of the three members present who voted, two voted in favor of Margerison’s request and one voted against.

DISSENTING OPINION BY CAROL M. HANSEN, Judge: ¶1 The majority mischaracterizes the issue as one dealing with whether a gate “could remain” in the fence. The original fence and gate are gone. ¶2 Charter Oaks Home Owners Association, is a gated community consisting of 65 lots. The 1983 charter and by-laws reserved a three foot perimeter and fence easement in favor of Association along the northern edge of the community. The fence had three gates at the time Plaintiffs purchased their lots. It is undisputed there is no provision in the charter, covenants or by-laws allowing lot owners to install a gate in the perimeter fence ¶3 In 2008, because the fence was deteriorating, Association advised Plaintiffs of its intention to replace the fence. Margerison, a member of Association’s Board of Directors, at its meeting, received a minority vote purporting to allow him to install a gate in the fence at his own expense, which he did. However, Margerison did not have a majority vote by the Board members present approving his petition to install a gate.1 Later in 2009, Association, by a vote of the owners, demanded he remove the fence. ¶4 The original grant to COHA Charter provides: Grantor (Charter Oaks Homes) hereby grants to Charter Oaks Homeowners Association an easement, of the varying width shown on the accompanying plat, on all perimeter lots and lot ‘B’ as shown and designated on the plat for the several purposes of construction, maintaining, altering, repairing, removing and replacing retaining and screening walls, fences, and landscape materials on the exterior side thereof, with the right of ingress and egress in and to said easements for the uses and purposes aforesaid.

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¶5 The plats also reflect an easement for maintenance and fencing. And again in 1990, a third amendment of declaration of covenants, conditions and restrictions further contained a section on perimeter fencing or walls. It is even more indicative of an exclusive easement. It provides: Within the Deed of Dedication of Charter Oak there has been heretofore established for the benefit of the Association a perpetual easement upon the perimeter of Charter Oak for the purposes of the erection, installation, and maintenance of security and entry facilities, decorative fencing, walls and landscaping shall be the obligation of the Association. The perimeter easement of the Association shall be deemed exclusive, and no individual lot owners shall construct any fence or wall within the perimeter easement area or within 10 feet of the perimeter boundary line of Charter Oak, unless the proposed fence or wall shall have first been approved in writing by the association. ¶6 Clearly, Association has a right in the easement to build a perimeter fence consistent with the purpose of the easement. Plaintiffs admit Association owns the fence. Placing a gate in the fence is inconsistent with the easement and in conflict with the intended limited access and exclusive rights of Association. ¶7 Plaintiffs point to no provision in any of the charter documents that permit a vote by the board to prevail without a vote of the homeowners. ¶8 Plaintiffs are claiming an ownership right superior to the easement rights of Association. Although Plaintiffs in their motion for summary judgment cite several distinguishable decisions from other jurisdictions to support their claims, they do not cite any Oklahoma decision directly applicable to their claims. As pointed out in Association’s response to Plaintiffs’ motion for summary judgment, under the original founding and governing documents the original grantor installed a fence, created an easement and assigned the same to Association. Plaintiffs may not circumvent these rights. The fact Plaintiffs bought their property partly based on access to the park and the fact it was inconvenient for them to walk or ride to the community exit for that access is not material to this decision. Vol. 81 — No. 24 — 9/11/2010

¶9 Equity follows the law. Where the rights of the parties are clearly defined and established by law, equity has no power to change or unsettle those rights. The maxims of equity may be invoked to protect an existing right, but they are unavailable to create a right where none exists. Mehdipour v. Holland, 2007 OK 69, 177 P.3d 544. The majority appears to create a right through equity where none exists in the law. ¶10 There are no material facts in controversy. Association owns the fence. Accordingly the trial court did not err in granting Association’s motion for summary judgment. 1. Margerison abstained from voting on this issue.

2010 OK CIV APP 60 KEN SHEPHERD, Plaintiff/Appellant, v. KAWASAKI USA, Defendant/Appellee. Case No. 107,824. May 10, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE MARY F. FITZGERALD, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Gerald J. Lovoi, Tulsa, Oklahoma, for Plaintiff/ Appellant Stacey S. Chubbuck, Gary M. Chubbuck, FENTON FENTON SMITH RENEAU & MOON, Oklahoma City, Oklahoma, for Defendant/ Appellee DEBORAH B. BARNES, JUDGE: ¶1 Ken Shepherd (Shepherd) appeals1 from the trial court’s judgment, filed on January 8, 2010,2 dismissing his lawsuit against Kawasaki USA (Kawasaki)3 on the grounds of forum non conveniens. Shepherd had purchased a Kawasaki motorcycle in 2007 in Katy, Texas. After several failed repair attempts in Texas and Mexico, Shepherd, a resident of Tulsa, Oklahoma, sued Kawasaki in Tulsa County, Oklahoma, for breach of warranty. Kawasaki filed its answer and then, nearly five months later, filed its motion to dismiss the lawsuit, asserting forum non conveniens. Finding the trial court improperly dismissed this case, we reverse and remand for further proceedings.

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UNDISPUTED MATERIAL FACTS ¶2 The record on appeal reveals the following undisputed facts:4 1. Shepherd resides in Tulsa, Oklahoma.5 2. Kawasaki is a United States corporation whose principal place of business is in Irvine, California.6 3. On September 28, 2007, Shepherd purchased a new 2008 Kawasaki motorcycle with a warranty from Wild West Honda Kawasaki in Katy, Texas.7 4. The bill of sale reflects Shepherd’s address as “PO Box 244, Tulsa, Oklahoma 74101.”8 5. On October 17, 2007, November 3, 2007, and February 6, 2008, Shepherd took the motorcycle to Motocicletas y Equipos, S.A. de C.V. in Monterey, Mexico for repair.9 6. On February 28, 2008, Shepherd took his motorcycle to Team Mancuso PowerSports in Houston, Texas for repair.10 7. Shepherd contacted Kawasaki on or about January 26, 2009, demanding either restitution or replacement of the motorcycle,11 neither of which has occurred. 8. Shepherd filed his Petition on March 6, 2009.12 9. Kawasaki filed its Answer on April 22, 2009. The Answer included affirmative defenses. None were asserted as to venue.13 10. On September 16, 2009,14 Kawasaki filed its “Motion to Dismiss Based on Forum Non Conveniens.” 11. On September 30, 2009, Shepherd filed his response to the Motion to Dismiss and attached an affidavit, stating he had been ill and that his illness restricts his ability to travel.15 STANDARD OF REVIEW ¶3 “The dispositive questions in this appeal concerning application of the doctrine of interstate forum non conveniens . . . are questions of law. We review questions of law by a de novo standard, independent of and without deference to the lower court’s legal rulings.” Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, ¶ 9, 115 P.3d 829, 833. (Citations omitted.) Application of the doctrine of interstate forum non conveniens lies within the sound discretion of 2012

the trial court. Id. at ¶ 14. “We will reverse for abuse of discretion if the district court reached a conclusion that is clearly against the evidence and reason.” Id. (Citation omitted.) Motions to dismiss are generally viewed with disfavor. Darrow v. Integris Health, Inc., 2008 OK 1, 176 P.3d 1204. ANALYSIS ¶4 Forum non conveniens is a common law16 doctrine authorizing a trial court to refuse to hear an action that would more appropriately be heard in another location. Gulf Oil Company v. Woodson, 1972 OK 164, ¶ 17, 505 P.2d 484, 488. This doctrine was first addressed in an interstate case by the Oklahoma Supreme Court in St. Louis-San Francisco Railway Co. v. Superior Court, Creek County, 1954 OK 223, 276 P.2d 773. Forum non conveniens is a “supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined.” Sinochem International Co. Ltd. v. Malaysia International Shipping Corp., 549 U.S. 422, 423, 127 S.Ct. 1184, 1186 (2007), quoting American Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S.Ct. 981, 988 (1994). “If venue attaches under any statute, then that action is rightly brought. The venue statutes are equal in establishing venue.” Harwood v. Woodson, 1977 OK 57, ¶ 10, 565 P.2d 1, 3. “[Forum non conveniens] is born in common law.” Id. at ¶ 11. Even an action brought in an appropriate statutory venue “does not rule out an attack on venue bottomed on the common law doctrine of forum non conveniens.” Id. at ¶ 12. ¶5 Shepherd asserts that the trial court erred in dismissing this case under the doctrine of forum non conveniens because Kawasaki waived its right to invoke the doctrine. Kawasaki filed its Answer on April 22, 2009. The Answer included affirmative defenses; none, however, were asserted as to venue. Kawasaki’s Motion to Dismiss was not filed until September 16, 2009 — nearly five months after it filed its Answer. ¶6 In support of his argument, Shepherd cites 12 O.S. Supp. 2004 § 2012. The relevant portion of the statute states: B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at

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the option of the pleader be made by motion: ... 3. Improper venue .... A motion making any of these defenses shall be made before pleading if a further pleading is permitted. .... F. WAIVER OR PRESERVATION OF CERTAIN DEFENSES. 1. A defense of . . . improper venue . . . is waived: ... b. if it is not made by motion and it is not included in a responsive pleading …. (Emphasis added.) ¶7 In Halliburton Company v. District Court of Creek County, Drumright Division, 1974 OK 90, 525 P.2d 628, the defendant’s attempt to invoke forum non conveniens was rejected by the Oklahoma Supreme Court because it was not filed at the earliest stage in the proceedings. [W]e hold that the language in [Gulf Oil Company v. Woodson, 1972 OK 164, 505 P.2d 484 —] “must be presented at the earliest stage in the proceeding” [—] means an application for change of venue under the doctrine of intrastate forum non conveniens must be filed in the case before the date fixed for the filing of answer, and called to the attention of the trial court without undue delay. The failure to attempt to invoke forum non conveniens before answer will constitute a waiver and a party will not thereafter be heard to complain of the trial court’s failure to grant a change of venue under this doctrine. Halliburton Company v. District Court of Creek County, Drumright Division at ¶ 10, 525 P.2d at 630.17 Because Kawasaki did not raise the issue of forum non conveniens in a timely fashion, either before or at the time it filed its answer, we find, as a matter of law, that Kawasaki waived its right to rely on that doctrine. ¶8 Even if Kawasaki had timely raised the issue of forum non conveniens, the dismissal should be reversed. Recently enacted, title 12 Vol. 81 — No. 24 — 9/11/2010

O.S. Supp. 2009 § 140.2 (effective November 1, 2009), provides: A. If the court, upon motion by a party or on the court’s own motion, finds that, in the interest of justice and for the convenience of the parties, an action would be more properly heard in another forum either in this state or outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay, transfer or dismiss the action. B. In determining whether to grant a motion to stay, transfer or dismiss an action pursuant to this section, the court shall consider: 1. Whether an alternate forum exists in which the action may be tried; 2. Whether the alternate forum provides an adequate remedy; 3. Whether maintenance of the action in the court in which the case is filed would work a substantial injustice to the moving party; 4. Whether the alternate forum can exercise jurisdiction over all the defendants properly joined in the action of the plaintiff; 5. Whether the balance of the private interests of the parties and the public interest of the state predominate in favor of the action being brought in an alternate forum; and 6. Whether the stay, transfer or dismissal would prevent unreasonable duplication or proliferation of litigation. (Emphasis added.) ¶9 Although the Legislature did not define “private” and “public” interests, the Oklahoma Supreme Court, considering interstate forum non conveniens in Conoco, Inc. v. Agrico Chemical Co., had already defined these terms as follows: The forum non conveniens criteria consider private and public interests. Gulf Oil Corporation v. Gilbert, 330 U.S. at 508, 67 S.Ct. at 843. The private interests to be considered include whether the forum 1) is convenient for witnesses, 2) may reach unwilling witnesses by compulsory process, 3) allows a view of the premises, 4) is near the sources

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of proof, and 5) serves to make trial of the case less burdensome and more convenient. Id. The public interests include the burden of jury duty on the community and the community interest in having local controversies decided at home. Id. Except where the balance of these interests tilts strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. Id. Oklahoma adopted these criteria in applying the doctrine of interstate forum non conveniens. St. Louis-San Francisco Ry. Co. v. Superior Court, at ¶ 23, 276 P.2d at 778.

was actually available. The Court instructed the trial court to either deny the “motion to dismiss or condition its dismissal to guarantee that an alternate forum is available.” Id. at ¶ 14. (Emphasis added.) See also Framel v. State Farm Mutual Automobile Insurance Co., 2008 OK CIV APP 40, 181 P.3d 755 (in this interstate forum non conveniens case, the Court of Civil Appeals, citing Binder, reversed and remanded the case to the trial court for consideration of the alternative of establishing conditions for dismissal set forth in Binder.)

Conoco, Inc. v. Agrico Chemical Co., at ¶ 11, 115 P.3d at 833. In evaluating those interests, a plaintiff’s chosen venue should be given preference. “The plaintiff’s choice18 of forum will be disturbed only in exceptional cases.” Conoco, Inc. v. Agrico Chemical Co. at ¶ 10, 115 P.3d at 833. (Citation omitted.)

¶13 Based on the review of the record before us and the applicable law, we find Kawasaki failed to timely raise forum non conveniens and thus waived its right to assert the doctrine. Because of this waiver, we find the Binder case’s conditional dismissal alternative is not available to Kawasaki. The trial court erred by granting Kawasaki’s motion to dismiss and dismissing Shepherd’s lawsuit. The order granting the motion to dismiss should be, and hereby is, reversed. We remand to the trial court for further proceedings consistent with this opinion.

¶10 In Binder v. Shepard’s Inc., 2006 OK 17, 133 P.3d 276, the Oklahoma Supreme Court reversed the trial court’s granting of the defendant’s motion to dismiss based on forum non conveniens. The plaintiffs had brought a breach of contract lawsuit against a publisher for failure to pay royalties. The defendant alleged that all of the events occurred outside Oklahoma; that the only Oklahoma connection to any of the parties was that the defendant was registered as a foreign corporation; that there were no witnesses or evidence in Oklahoma; and, that other forums were more convenient. The plaintiffs did not challenge these assertions; however, they argued that the statute of limitations may have run in alternate forums outside Oklahoma. ¶11 The Binder Court stated that the “balance in the doctrine of forum non conveniens is not tilted toward a defendant’s right to a convenient forum, but toward a plaintiff’s right to have its claims heard in the forum of its choice.” Binder v. Shepard’s Inc., at ¶ 6, 133 P.3d at 278. “While a plaintiff may not use its choice of forum to ‘vex or harass a defendant,’ we disturb its choice only in ‘exceptional cases.’” Id. (Citation omitted.) “Further, the defendant bears the burden of establishing the existence of a viable alternate forum.” Id. at ¶ 10, 133 P.3d at 280. (Citation omitted.) ¶12 Reversing and remanding the case for further proceedings, the Binder Court stated that it was error to dismiss the plaintiffs’ case without ensuring that an alternative forum 2014

CONCLUSION

¶14 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. WISEMAN, C.J., and FISCHER, P.J., concur. 1. This accelerated appeal proceeds pursuant to Rule 1.36, Okla. Sup. Ct. Rules, 12 O.S. Supp. 2004, ch. 15, app. l. Kawasaki questions the appropriateness of this procedure as applied to a motion to dismiss on the basis of forum non conveniens. We decline to comment upon this question, but instead note that Kawasaki did not request leave to file a brief nor allege in what way it has been prejudiced by use of the procedure. This Court did not request further briefing pursuant to Rule 1.36(g) because the undisputed material facts are determinative of the appeal and further briefing would not be of assistance. 2. The trial court ruled on October 8, 2009, and the written order was filed on November 9, 2009. Record (R.), Tab 1. The ruling was not embodied in an appealable order until January 8, 2010. 3. Although the Oklahoma Supreme Court’s record in this case refers to Defendant as “Kawasaki USA,” the pleadings reflect Defendant’s name as “Kawasaki Motors Corp., U.S.A.” 4. The remaining controverted facts refer to the merits of the breach of warranty claims. Discussion of the merits is not necessary to our analysis and determination of the issue of forum non conveniens on appeal. 5. R., Tab 6, Petition, p. 1. 6. R., Tab 5, Answer, p. 1, ¶ 2; Tab 4, Motion to Dismiss, p. 1. 7. R., Tab 6, Petition, Exhibit A; Tab 5, Answer, p. 2; Tab 4, Motion to Dismiss, p. 2. 8. R., Tab 6, Petition, Exhibit A. 9. R., Tab 6, Petition, Exhibit C; Tab 4, Motion to Dismiss, p. 2. 10. R., Tab 6, Petition, Exhibits C and D; Tab 4, Motion to Dismiss, p. 2. 11. R., Tab 6, Petition, p. 8; Tab 5, Answer, p. 4, ¶ 27. 12. R., Tab 6, Petition. 13. R., Tab 5, Answer. 14. R., Tab 4. 15. R., Tab 3, Shepherd’s response to Kawasaki’s Motion to Dismiss. 16. The doctrine has now been codified by statute. See 12 O.S. Supp. 2009 § 140.2. Although the effective date of this statute is November 1,

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2009, as a procedural statute it is not limited to prospective-only application. See Howell v. James, 1991 OK 47, 818 P.2d 444, citing Fleming v. Baptist General Convention of Oklahoma, 1987 OK 54, 742 P.2d 1087. The statutory language does not evidence any legislative intent to supplant the existing common law of forum non conveniens. See Inergy Propane, LLC v. Lundy, 2009 OK CIV APP 8, ¶ 28, 219 P.3d 547, 557. 17. See also Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, 21 P.2d 1, in which the Oklahoma Supreme Court held that questions of jurisdiction and venue should be raised at the earliest stage in the proceeding. 18. Here, Shepherd chose Tulsa, Oklahoma, his residence, as his preferred venue. He submitted an affidavit, offering an additional specific reason why he chose Tulsa as his venue — he is currently seeking treatment for a medical condition and has been advised not to travel. Shepherd also asserts that dismissal may affect his rights under Texas law; particularly he asserts the statute of limitations may have run. In light of our decision, we need not address the limitations issue.

2010 OK CIV APP 59 THE INCORPORATED CITY OF GROVE, DELAWARE COUNTY, OKLAHOMA, an Oklahoma municipal corporation, Plaintiff/ Appellee, vs. VERNON BOYCE, individually, and BOYCE INVESTMENTS, L.L.C., d/b/a ALL AMERICAN OUTDOOR ADVERTISING COMPANY, Defendants/ Appellants, and THE GRAND RIVER DAM AUTHORITY, Defendant/Appellee. Case No. 107,316. May 7, 2010 APPEAL FROM THE DISTRICT COURT OF DELAWARE COUNTY, OKLAHOMA HONORABLE ROBERT G. HANEY, JUDGE AFFIRMED Brandon A. Johnson, DAVIS & THOMPSON, Jay, Oklahoma, for Plaintiff/Appellee, Jot Hartley, Daniel Giraldi, THE HARTLEY LAW FIRM, PLLC, Vinita, Oklahoma, for Defendants/Appellants, Gretchen Zumwalt-Smith, Vinita, Oklahoma, for Defendant/Appellee. ROBERT DICK BELL, VICE-CHIEF JUDGE: ¶1 Defendants/Appellants, Vernon Boyce and Boyce Investments, L.L.C., d/b/a All American Outdoor Advertising Company (Boyce), appeal from the trial court’s judgment permanently enjoining Boyce from constructing billboards on certain property deemed to be within the city limits of Plaintiff/Appellee, City of Grove (City). For the reasons set forth below, we affirm. ¶2 In 2007, Boyce leased certain real property (Subject Property) from the landowner for the purpose of erecting billboards. After Boyce began constructing billboards in July 2008, City filed a petition for injunctive relief. City’s petition alleged the billboards were in violation of City of Grove Municipal Ordinance No. 451, Vol. 81 — No. 24 — 9/11/2010

which prohibits, with certain exceptions, all non-accessory and billboard signs within the city limits of Grove. Boyce counterclaimed, asserting the Subject Property had been deannexed by City via Municipal Ordinance No. 404 on December 3, 1996. Defendant/Appellee, The Grand River Dam Authority (GRDA), was later added as a party at the direction of the trial court. ¶3 Both City and Boyce filed motions for summary judgment. The trial court denied Boyce’s motion and granted City’s motion. Specifically, the trial court permanently enjoined Boyce from constructing billboards on the Subject Property and ordered Boyce to remove all construction thus far completed. From said judgment, Boyce appeals. This matter stands submitted for accelerated appellate review on the trial court record pursuant to Rule 13(h), Rules for District Courts, 12 O.S. Supp. 2002, Ch. 2, App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp. 2003, Ch. 15, App. 1. ¶4 This Court’s standard of review of a trial court’s grant of summary judgment is de novo. Hoyt v. Paul R. Miller, M.D., Inc., 1996 OK 80, ¶2, 921 P.2d 350, 351-52. Summary judgment is proper when the evidentiary materials “establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Shelley v. Kiwash Elec. Co-op., 1996 OK 44, ¶15, 914 P.2d 669, 674. The sole issue in this case is whether the trial court properly concluded the Subject Property is located within the Grove city limits. Such conclusion emanated from the trial court’s interpretation of Ordinance No. 404. A legal question involving the interpretation of legislation is also subject to de novo review by this Court. Fulsom v. Fulsom, 2003 OK 96, ¶2, 81 P.3d 652, 654. Such examination requires “a nondeferential, plenary and independent review of the trial court’s legal ruling.” Id. ¶5 It is undisputed (1) the Subject Property falls within the legal description of the real property identified in Ordinance No. 404 and (2) Ordinance No. 451 would prohibit the construction of Boyce’s billboards if the Subject Property lies within the city limits of Grove. At issue is the interpretation of Ordinance No. 404, which provides in relevant part: Be it ordained by the City Council of the City of Grove, Delaware County, Oklahoma:

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Section 1: That Grand River Dam Authority has requested the City Council of the City of Grove by oral application to have all that part of the hereinafter described real property acquired by Grand River Dam Authority prior to annexation by the City of Grove de-annexed from the City Limits of the City of Grove. The ordinance then set forth the legal description of the real property involved. ¶6 The record indicates the GRDA filed a formal protest in January 1996 to City’s thenrecent annexation of certain “property situated within the boundaries of the GRDA District.” The GRDA reasoned in its protest letter that the Oklahoma Legislature intended to vest exclusive authority in the GRDA to regulate and control all property located within the boundaries of its District. It appears this protest triggered City’s enactment of Ordinance No. 404. ¶7 The crux of Boyce’s motion for summary judgment is that the GRDA had an interest in the Subject Property, specifically a flowage easement, prior to the time the property was annexed by City. Boyce argued the Subject Property was included in “that part” of the described property that had been “acquired by” GRDA before the annexation. Thus, the Subject Property should now be considered deannexed by virtue of the plain language of Ordinance No. 404. ¶8 The glaring problem with Boyce’s position is that the GRDA, after being joined as a party to this lawsuit, specifically disclaimed any flowage easement on (or any fee interest in) the Subject Property. In fact, Boyce’s own documentary evidence supports the conclusion that the flowage easement on the Subject Property is owned by the United States Government. Therefore, even if Ordinance No. 404 was interpreted to include a flowage easement on the Subject Property in the definition of “real property acquired . . . prior to annexation,” the record demonstrates the easement is not owned by the GRDA. Because there is no record evidence the GRDA owned any interest in the Subject Property prior to the time the property was annexed by City, the Subject Property was not included in the land deannexed by Ordinance No. 404. The Subject Property is therefore included within the corporate limits of the City of Grove and subject to the regulatory control of City pursuant to its municipal sign ordinance. 2016

¶9 On the basis of the foregoing and after de novo review of the record, we hold there exists no genuine issue as to any material fact and City is entitled to judgment as a matter of law. Accordingly, the judgment of the trial court is affirmed. ¶10 AFFIRMED. JOPLIN, P.J., and MITCHELL, J., concur. 2010 OK CIV APP 85 WESTVILLE NURSING HOME, INC., and CCG&K, LLC, Plaintiffs/Appellants, vs. CITY OF WESTVILLE, OKLAHOMA, Defendant, and WESTVILLE UTILITY AUTHORITY, Appellee. Case No. 107,175. August 6, 2010 APPEAL FROM THE DISTRICT COURT OF ADAIR COUNTY, OKLAHOMA HONORABLE ELIZABETH BROWN, TRIAL JUDGE DISMISSED George Mullican, Charles A. McSoud, Oliver L. Smith, Christopher D. Wolek, GIBBS, ARMSTRONG, BOROCHOFF, MULLICAN AND HART, P.C., Tulsa, Oklahoma, for Plaintiffs/ Appellants C. Bart Fite, FITE LAW FIRM, Muskogee, Oklahoma, For Appellee JANE P. WISEMAN, CHIEF JUDGE: ¶1 Plaintiffs appeal from the trial court’s orders denying their motion to amend the petition to add a party defendant and granting Westville Utility Authority’s motion to dismiss.1 Having reviewed the record and pertinent law, we find this appeal must be dismissed due to a lack of an appealable order. ¶2 This action involves problems with a sewer line causing raw sewage to back up into Plaintiffs’ nursing home facility on January 13, 2007. On April 19, 2007, Plaintiffs served a notice of tort claim on the Mayor of the City of Westville, Brian Sitsler, which was denied by operation of law after the expiration of ninety days, i.e., July 19, 2007. On November 21, 2007, Plaintiffs filed a petition against the City of Westville alleging City was liable to Plaintiffs for damages caused by the sewage backup due to City’s negligent maintenance of the sewer. ¶3 On December 28, 2007, City filed an entry of appearance and requested an additional

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twenty days to file a responsive pleading. On January 28, 2008, Plaintiffs filed a motion for default judgment after receiving no responsive pleading from City. On February 25, 2008, City filed an application to answer out of time and filed an answer. The trial court granted City’s application on April 29, 2008. ¶4 On July 18, 2008, Plaintiffs moved for leave to amend the petition to add Authority as a defendant to the action and they attached the proposed amended petition as an exhibit to the motion. Although the trial court had yet to rule on Plaintiffs’ motion for leave to amend, both City and Authroity filed motions to dismiss.2 ¶5 In an order filed November 25, 2008, the trial court granted Authority’s motion to dismiss and denied Plaintiffs’ motion to amend the petition finding as follows: The Plaintiff’s [sic] motion to amend petition to add additional parties is denied. The Court further finds that the Governmental Tort Claims Act, 51 O.S. §151 et seq. bars the institution of this action against the Defendant, Westville Utility Authority. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss filed by the Defendant, Westville Utility Authority, is hereby granted with all costs being discharged herein. ¶6 Plaintiffs filed a motion to vacate/reconsider “the Court’s Decision Denying Plaintiffs’ Motion to Amend Petition.”3 In a minute order filed November 25, 2008, the trial court denied Plaintiffs’ motion to reconsider and denied City’s motion to dismiss. ¶7 On May 12, 2009, the trial court issued the following order: Upon review of the briefs and having heard oral arguments regarding the same, this Court finds that the Order dismissing [Authority] and filed herein on November 25, 2008, should be deemed a final judgment. This court finds that there is no just reason for delay and expressly directs the filing of the judgment pursuant to the provisions of 12 O.S. §994(A). Plaintiffs appeal. ¶8 Our analysis of the record including the trial court docket sheet leads us to conclude that this appeal must be dismissed as premature. Plaintiffs filed their motion to vacate/ Vol. 81 — No. 24 — 9/11/2010

reconsider the trial court’s decision on their motion for leave to amend and the Authroity’s motion to dismiss prior to the November 25, 2008, formalization of that decision. It was therefore filed within ten days of the November 25, 2008, order and because it seeks reconsideration of that order, it should be treated as a motion for new trial filed pursuant to 12 O.S.2001 §991. Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, ¶4, 681 P.2d 757, 758-59 (“A motion seeking reconsideration, re-examination, rehearing or vacation of a judgment or final order, which is filed within 10 days of the day such decision was rendered, may be regarded as the functional equivalent of a new trial motion, no matter what its title.”) ¶9 The time to appeal the November 25, 2008, order was extended by the filing of Plaintiffs’ motion for new trial. 12 O.S. Supp. 2009 §990.2(A). The time to appeal both orders does not begin until the filing of a final order in statutory form of the order disposing of the motion for new trial. ¶10 We find the November 25, 2008, “Court Minute” has not disposed of Plaintiffs’ motion for new trial. Even if this minute order facially appears to meet the requirements set forth in 12 O.S. Supp. 2009 §696.3, we cannot consider it as a “judgment, decree or appealable order” because it is titled “Court Minute.” Corbit v. Williams, 1995 OK 53, ¶9, 897 P.2d 1129, 1131. Title 12 Supp. 2009 §696.2(D) clearly states that a minute entry does “not constitute a judgment, decree or appealable order.” This is reiterated by the Supreme Court in Corbit: “[A]n order of the District Court titled ‘Court Minute’ is not a judgment, decree or appealable order for the purpose of commencing the time to appeal.” Corbit, 1995 OK 53 at ¶9, 897 P.2d at 1131. ¶11 Section 990.2(A) provides that “an appeal shall not be commenced until an order disposing of the motion is filed with the court clerk.” 12 O.S. Supp. 2009 §990.2(A). Until that motion is resolved, the trial court may revise, reverse, or withdraw its initial ruling on the motion. ¶12 The filing of a judgment or appealable order that conforms to the requirements of §696.3 is “a jurisdictional prerequisite to the commencement of an appeal.” 12 O.S. Supp. 2009 §696.2(D). Because the November 25, 2008, handwritten court minute denying Plaintiffs’ motion for new trial is not a judgment, decree or appealable order, this appeal is premature. We have no jurisdiction to entertain

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this appeal on its merits, and it must be dismissed. To avoid such procedural pitfalls, the better practice would be to avoid the use of courthouse forms bearing the title of “court minute” and for the trial court to direct counsel to prepare a draft for the court’s signature as provided in 12 O.S. Supp. 2009 §696.2(A).4 ¶13 DISMISSED. FISCHER, P.J., and BARNES, J., concur. 1. Plaintiffs state in their petition in error that they appeal only from the trial court’s order denying Plaintiffs’ motion for leave to file an amended petition and granting Authority’s motion to dismiss. However, Plaintiffs state in their brief in chief they are also appealing from the trial court’s order denying their motion to reconsider/ vacate. 2. We note the docket sheet and record reflect that Plaintiffs’ proposed amended petition attached to their motion was also separately file stamped the same day as their motion to amend. 3. Although Plaintiffs titled their motion as one to vacate or reconsider “the Court’s Decision Denying Plaintiffs’ Motion to Amend Petition,” Plaintiffs refer to the motion during the hearing and in its motion to set hearing as also requesting vacation of the trial court’s decision granting Authority’s motion to dismiss. 4. Title 12 Section 696.2(A) provides: “After the granting of a judgment, decree or appealable order, it shall be reduced to writing in conformance with Section 696.3 of this title, signed by the court, and filed with the court clerk. The court may direct counsel for any party to the action to prepare a draft for the signature of the court, in which event, the court may prescribe procedures for the preparation and timely filing of the judgment, decree or appealable order, including, but not limited to, the time within which it is to be submitted to the court. If a written judgment, decree or appealable order is not submitted to the court by the party directed to do so within the time prescribed by the court, then any other party may reduce it to writing and submit it to the court.”

2010 OK CIV APP 87 MANUFACTURERS GUILD, INC., Plaintiff/ Appellant, vs. THE CITY OF ENID, OKLAHOMA, Defendant/Appellee. Case No. 107,583. August 6, 2010 APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY, OKLAHOMA HONORABLE DENNIS HLADIK, TRIAL JUDGE AFFIRMED Matthew N. Davis, Matthew Neill Davis, P.C., Enid, Oklahoma, For Plaintiff/Appellant, Andrea L. Chism, Enid City Attorney, Enid, Oklahoma, For Defendant/Appellee. Wm. C. Hetherington, Jr., Judge: ¶1 This is an appeal from a judgment in equity in favor of The City of Enid, Oklahoma (City) and against Manufacturers Guild, Inc. (Owner), allowing demolition of Owner’s building and denying Owner’s injunctive request to prohibit its destruction and allow Owner to complete repairs. 2018

FACTS ¶2 Owner claimed its property was an historically significant building in downtown Enid, Oklahoma. In 2008, Owner began to repair its building after the demolition in May 2007 of an adjoining building Owner claims caused its building to begin to deteriorate. Owner was originally notified by City in May 2007 regarding the condition of its building as being a hazard. The record shows City building officials held ten “dilapidation hearings” regarding Owner’s building, the first being November 28, 2007 and the last January 14, 2009, at which it was found to be dilapidated and ordered to be removed. The Mayor and Board of Commissioners for the City of Enid (City Council) affirmed that finding on February 19, 2009. ¶3 Owner filed his “Petition for Injunction and Temporary Injunction and Appeal from Ruling of the City Commission” in Garfield District Court on March 18, 2009, seeking to prohibit City from demolishing his building. A trial de novo was held July 31, 2009. ¶4 The record shows in March 2008, Owner retained the services of Geoffrey E. Brueggemann, P.E.. (Engineer), who evaluated the building for repair and furnished City a report concerning intended repairs to the south and west walls, including material suggestions and product descriptions. His opinion given at the hearing held August 12, 2009 was that all but the south wall appeared to be structurally sound. Engineer estimated at trial a reasonable time for repair to be six months. He further testified that as of August 12, 2009, the repairs had not been completed. A significant amount of repair was done after the demolition decree in February 2009. ¶5 The trial court found, relying on 11 O.S.Supp.2004 §22-112,1 City had carried its burden to prove the property had become dilapidated and was detrimental to the health, safety and welfare of the general public. The trial court found Owner had been given a reasonable opportunity to correct the problems but the building still met the definition and statutory requirements of a dilapidated structure and ordered its demolition. Owner appeals. STANDARD OF REVIEW ¶6 Neither party identifies the proper standard of review for this appeal, which Owner brought from the district court’s affirmance of

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a city council’s decision to demolish Owner’s building, which essentially denied Owner’s injunctive relief request by affirming City’s demolition order.2 In a case of equitable cognizance, this Court must examine the record and weigh the evidence and will sustain a trial court’s judgment on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity. Story v. Hefner, 1975 OK 115, ¶12, 540 P.2d 562, 566. This case was tried to the court, sitting as a court of equity. He who seeks equity must do equity and come into court with clean hands. This applies with full force and effect to a suit to obtain an injunction. Id., ¶26. “Likewise, the credibility of witnesses and the effect and weight to be given to their testimony are questions of fact to be determined by the trier of fact . . . and are not questions of law for the Supreme Court on appeal.” Hagen v. Independent School District No. I-004, 2007 OK 19, ¶8, 157 P.3d 738, 740. ANALYSIS ¶7 Owner first argues that error was committed when the trial court found the property was dilapidated and had become detrimental to the health, safety or welfare of the general public and the community. Owner relies on Engineer and his testimony that the property could be “habitable.” Owner then makes a general argument that the evidence does not support a ruling that the property is a hazard to public health or safety. Owner disagrees with the trial court’s finding concerning the risk to the public of falling bricks and argues any threat to the public has been rectified by repairs made by Owner. ¶8 City argues the evidence clearly supports a finding the building met §22-112’s statutory definition of “dilapidated,” and that it posed a hazard to the health, safety and welfare of the general public. ¶9 The testimony at trial demonstrated by competent evidence significant repair delay and ten “dilapidation hearings.” The property was in a significant state of decay and partial ruin to the extent that bricks were continuing to fall from time to time, the mortar was brittle and quickly degrading, the patio cover had not been replaced, and the stucco covering was falling off. Significantly, through lack of attention and repair to the south wall, some bricks were deteriorating so quickly, they had fallen off and damaged parked vehicles. Owner testified he followed his engineer’s recommendaVol. 81 — No. 24 — 9/11/2010

tion and tried to repair the front of the building by taking out one of the ceilings first, installing anchors with epoxy and tried to pull it all together. The result was that “I exploded part of the wall.” As a result, on a couple of occasions parts of that wall fell landing on the sidewalk. Owner has not demonstrated an abuse of discretion, and based on our review of the record, we cannot conclude the trial court’s decision is clearly contrary to the weight of the evidence. CONSTITUTIONAL ISSUES ¶10 Owner asserts due process constitutional issues on appeal. He challenges §22-112 as violative of Article 5, §§52 and 54 of the Oklahoma Constitution. It argues City’s action “. . .operates to deprive Appellant of a vested right. A ‘vested right’ is the power to do certain actions or possess certain things lawfully and is substantially a property right. Once created, such a right is protected from legislative or governmental invasion, except by Due Process of Law,” relying on Ricks Exploration v. Oklahoma Water Resources Board, 1984 OK 73, 695 P.2d 498. Under this reasoning, Owner argues City’s actions were a sufficient interference with its use and enjoyment of its building to constitute an unconstitutional taking. ¶11 Owner’s second constitutional challenge is a governmental “land use” argument. Owner argues April v. City of Broken Arrow, 1989 OK 70, 775 P.2d 1347, holds a “. . .governmental landuse regulation may amount to an actual or defacto taking [i]f there is an overt act by governmental agencies resulting in an assertion of dominion and control over property.” (Emphasis added.) Even though City points out these constitutional propositions were first raised on appeal and should not be considered, as this appeal asserts a due process violation, this court can exercise independent judgment in deciding the constitutional question raised without deference to the trial court ruling. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217 (1991); Jones et. al. v. Integris Baptist medical Center, 2008 OK CIV APP 14, 178 P.3d 191. ANALYSIS ¶12 We first note Owner cites to Art. 5, §§52 and 54 of the Oklahoma Constitution. We find this common-law “vested right” challenge to be without merit. As City correctly points out, a “vested right” is the power to perform certain actions or to possess certain things lawfully. . .” Crump v. Guyer, 1916 OK 254, ¶17, 157 P. 321. Ownership or the right to possess and control

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this building is not the issue. The issue is the Art. 2 §7 “Due process of law” clause and unlawful taking versus state and municipal police power. More specifically, we are concerned with (1) whether §22-112 is a lawful exercise of police power as applied by City in this case, so as to not violate Art. 2 §§23 or 24 as a taking without just compensation and (2) if Owner was afforded a constitutionally sound process and opportunity to challenge and be heard. ¶13 This Court has previously found this statute to be constitutionally sound in the context of a police power regulation. We found property owners in urban areas must keep their property at a minimum standard so as not to endanger the health and safety of themselves and their neighbors. “Dilapidated structures may be fire hazards, become homes for rats and other wild animals and constitute potential for injury to humans. The state has a significant interest in regulation of the public’s health and safety without the requirement of emergency. The regulation is legitimate because the state is exercising its police power and not providing a benefit to special interests.” Wade v. City of Oklahoma City, 1994 OK CIV APP 17, ¶9, 873 P.2d 1057, (citing Energy Reserves Group, Inc. v. Kansas Power and Light Company, 459 U.S. 400, 103 S.Ct. 697 (1983)). Therefore, we find Owner’s constitutional challenge in this context to be without merit. ¶14 In addition, Owner argues and we must address, that §22-112 is really a land-use regulation. Relying on April, supra, citing Mattoon v. City of Norman, 1981 OK 92, 633 P.2d 735, Owner equates this statute with land-use regulation ordinances, arguing it is such an interference with the landowner’s use and enjoyment of its property so as to constitute a taking without just compensation. This statute is not a land-use ordinance. We only address this argument because the April court pointed out that a land-use ordinance in that case, is not a per se taking, but might amount to a taking “. . .if there is an overt act by the governmental agency resulting in an assertion of dominion and control over the property.” Id., at ¶14. Arguably an application in this case of the police power statute to regulate land use. City appropriately points to the constitutional “rational basis test” discussion in April which is relevant to this case: In balancing the private and public interests herein, Owner’s potential use of all property, under our system of govern2020

ment, is subordinate to the right of City’s reasonable regulations, ordinances, and all similar laws that are clearly necessary and bear a rational relation to preserving the health, safety, and general welfare of the residents of Broken Arrow. Id., at ¶19. ¶15 Section 22-112 is a constitutionally permissible police power statute enacted to protect the health, safety and welfare of the general public. It is rationally related to this goal, satisfies the rational basis test, is clear and unambiguous in its purpose, and therefore does not constitute an unconstitutional taking. This argument is also without merit. ¶16 Finally, we find the police power process exercised by City and as applied to Owner satisfied constitutional due process. Due process provisions in the statute itself provides for at least ten days notice to be given to the property owner. §22-112(1). It provides for a hearing. §22112(2). These are fundamental due process requirements afforded to and fully utilized by Owner. In addition, Owner received extra notifications and City conducted ten “dilapidation” review hearings before city staff actually declared the property to be dilapidated and recommended demolition. Adverse determination appeal process was utilized by Owner to the city council, hearing held, and city staff determination upheld. Finally, distrct court appeal trial de novo affirmation resulted in this appeal. Constitutional procedural due process was satisfied in this case. ¶17 Sufficient competent evidence was submitted to the non-jury fact finder in a trial de novo, and we grant deference to the trial court’s determinations. We find the trial court’s findings are not clearly against the weight of the evidence, contrary to law or established principles of equity and AFFIRM. BUETTNER, P.J., and HANSEN, J., concur. 1. Pursuant to §22-112(A), a municipal governing body may cause dilapidated buildings within the municipal limits to be torn down if the procedures set out in §22-112(A)(1)-(3) and (B) are followed. “Dilapidated building” includes “a structure which through neglect or injury lacks necessary repairs or otherwise is in a state of decay or partial ruin to such an extent that the structure is a hazard to the health, safety, or welfare of the general public.” See §22-112(C)(1)(a). 2. District courts are also vested with reviewing jurisdiction by 12 O.S.2001 §951 from judgments or final orders made “by any tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court.” (Emphasis added.) The Supreme Court has held that §951 does not allow a trial de novo by the district court, as occurred in this case. See Tuttle v. Pilant, 1994 OK 141, 890 P.2d 874. We conclude City was not exercising a judicial function and therefore §951 does not apply to this case. City’s decision under §22-112 is as exercise of its police power through a state statute, consistent with what the Court

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found in Goodall v. City of Clinton, 1945 OK 235, 161 P.2d 1011, an administrative decision.

2010 OK CIV APP 82 TRACY TARRANT, Plaintiff/Appellee, vs. GUTHRIE FIRST CAPITAL BANK, an Oklahoma corporation, Defendant/ Appellant, and TOM HOLDER and RANDY HOLDER, Defendants. Case No. 106,361; Consol. w/106,630. July 27, 2010 APPEAL FROM THE DISTRICT COURT OF LOGAN COUNTY, OKLAHOMA HONORABLE DONALD L. WORTHINGTON, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Robert S. Glass, R. Charles Wilkin III, Amy E. Hampton, Chad M. Neuens, GLASS WILKIN, PC, Tulsa, Oklahoma, for Appellee Tracy Tarrant John N. Hermes, Rodney K. Hunsinger, MCAFEE & TAFT, A PROFESSIONAL CORPORATION, Oklahoma City, Oklahoma, for Appellant First Capital Bank JOHN F. FISCHER, PRESIDING JUDGE: ¶1 Appellant First Capital Bank appeals from a judgment entered by the district court in favor of Appellee Tracy Tarrant. Based on our review of the applicable law, we reverse and remand for further proceedings. BACKGROUND ¶2 The facts relevant to this dispute concern Tarrant’s forty-five percent ownership in the “Alice Fisher” oil well, and transactions concerning that interest between Tarrant and the Bank. The Bank owned several loans made to Tarrant and his family, including a loan secured by a mortgage on the well. In 1998, production at the well was temporarily halted due to a pipe failure in the well bore. After Capstone Oil and Gas became operator of the well, it sought to rework the well and reestablish production. Capstone, also a Bank customer, estimated that the cost of this project would be approximately $110,000, and proposed an “Authority for Expenditure” (AFE) for this amount to the other well owners. Owners who agreed to Capstone’s proposal were required to pay their pro-rata share of the cost of the project. Capstone paid the cost for owners who did not agree. However, it would deduct 300 percent of Vol. 81 — No. 24 — 9/11/2010

all costs advanced on behalf of any non-consenting owner from the owner’s future share of production if the project was successful. Although Tarrant consented to the project and agreed to pay his $49,800 share of the project, his initial payment was only $35,800. The record indicates that Tarrant had no cash or credit available to pay any additional costs. ¶3 Capstone then submitted a supplemental AFE, estimating that the cost of the project would be $260,000. Tarrant objected. At a meeting called by the Bank, Tarrant agreed to proceed. The Bank then presented Tarrant with a supplemental operating agreement it had prepared and which Capstone had previously signed. Pursuant to this agreement, Tarrant would pay the remaining $14,000 due on the first AFE but he would not participate in any additional workover costs. Capstone would retain a percentage of Tarrant’s future income from the well, based on his non-consent to the additional expenses and the penalties applicable to those costs, until this obligation was satisfied. Tarrant contends that he signed this supplemental agreement on the advice of the Bank, or because of pressure or threats from Bank, including the claim that Capstone would otherwise stop work on the well. ¶4 Capstone’s rework of the well was successful, but its costs substantially exceeded the supplemental AFE. One Bank document estimates the final cost at $744,000, over six times the original estimate. As a result, Tarrant ultimately owed Capstone approximately $840,000 in costs and non-consent penalties. Although Tarrant’s interest in the well was worth between $900,000 and $1,000,000, the amended operating agreement allowed Capstone to retain $12,000 of Tarrant’s share of monthly production to pay the costs and non-consent penalties. Capstone paid the remaining $2,000 directly to the Bank to repay Tarrant’s debt to the Bank. Consequently, Tarrant was unlikely to receive any income from the well for approximately eight years. ¶5 Tarrant questioned the legitimacy of Capstone’s workover charges and its payment to the Bank of amounts not retained by Capstone. According to Tarrant, Bank proposed to Capstone that it buy Tarrant’s interest in the well, suggested a price of $150,000, and represented to Tarrant that Longhorn Services had made an offer to buy his interest in the well without disclosing that Longhorn was a division of Capstone. Tarrant refused to sell.

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¶6 In May 2004, Tarrant sued Capstone for fraud. In February 2005, the Bank wrote to Tarrant informing him that Capstone had offered to purchase the loans secured by the Tarrant family homes, vehicles and property, implying that Capstone intended to foreclose the loans during the litigation. Tarrant contends that Capstone made no such offer, and that Bank fabricated this offer to discourage him from continuing the litigation. In June 2005, the district court granted Tarrant’s motion for summary judgment against Capstone. A jury later determined his actual and punitive damages to be approximately $7,200,000.1 ¶7 Tarrant alleges that, in retaliation for “exposing Capstone’s fraud,” Bank foreclosed on all the Tarrant family loans. Tarrant filed suit against Bank in June 2005, asserting several theories of recovery. The pre-trial conference order recites that Tarrant sought recovery for conspiracy to commit unlawful acts; breach of fiduciary duty; negligence; bad faith and prima facie tort. At trial, the district court’s instructions to the jury on these theories included prima facie tort.2 The district court gave the prima facie tort instruction over Bank’s objection. The Bank also moved for a directed verdict at the close of evidence, which the court denied. The jury returned a general verdict of $1,350,000 in favor of Tarrant for actual and punitive damages. Bank filed motions for judgment notwithstanding the verdict, and for a new trial. In its motion for new trial, Bank argued, among other issues, that the district court erred in giving the prima facie tort instruction. The district court denied these motions and entered judgment for Tarrant. Bank appeals. STANDARD OF REVIEW ¶8 “Fundamental error occurs when the trial court does not accurately instruct the jury on the law.” Taliaferro v. Shahsavari, 2006 OK 96, ¶ 25, 154 P.3d 1240, 1248. “Where a jury is instructed on more than one issue and error affects one of the issues, ‘the error affecting one issue or theory in a case will be regarded as prejudicial where it is impossible to determine upon which of the two issues or theories the jury based its decision.’” Hightower v. Kansas City S. Ry. Co., 2003 OK 45, ¶ 8, 70 P.3d 835, 840 (citing Bredouw v. Jones, 1966 OK 93, ¶ 32, 431 P.2d 413, 420). 2022

ANALYSIS ¶9 Bank argues that Oklahoma does not recognize the prima facie tort theory of recovery. Because we find the prima facie tort instruction constitutes fundamental error requiring remand, we do not address the other issues raised by Bank in this appeal. I. Prima Facie Tort ¶10 Prima facie tort is defined by the Restatement (Second) of Torts §§ 870-874 (1979), as follows: One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor’s conduct does not come within a traditional category of tort liability. The Restatement’s definition is “intended to serve as a guide for determining when liability should be imposed for harm that was intentionally inflicted, even though the conduct does not come within the requirements of one of the well established and named intentional torts.” Restatement § 870 cmt. a. The Restatement requires a court to first apply a balancing test to decide if an intentional but not unlawful act should be considered a basis for tort liability.3 ¶11 Although between eight and twelve states appear to have recognized this theory, litigation pursuant to the prima facie tort theory is concentrated in three states: New York, New Mexico and Missouri. New Mexico and Missouri apply essentially the same definition of prima facie tort: 1) an intentional, lawful act; (2) committed with the intent to injure the plaintiff; (3) causing injury to the plaintiff; and (4) the absence of justification for the injurious act. Schmitz v. Smentowski, 785 P.2d 726, 736 (N.M. 1990); Porter v. Crawford & Co., 611 S.W.2d 265, 272 (Mo. Ct. App. 1980). New York applies the same rule but requires special damages: 1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful. Curiano v. Suozzi, 469 N.E.2d 1324, 1327 (N.Y. 1984).

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¶12 Tarrant cites no Oklahoma case adopting the prima facie tort theory of recovery, and we find none. The term “prima facie tort” appears in no reported Oklahoma case before 1990. In 1985, the Oklahoma Bar Journal published a student article titled The Prima Facie Tort Doctrine in Oklahoma, 56 Okla. B. J. 1759. This article centers on four pre-1925 tort cases.4 None of these cases uses the phrase “prima facie tort.” The law student author argues, however, that the discussion in these cases of “intentional acts which do damage to another without just cause or excuse,” coupled with an interpretation of Okla. Const. art. 2, § 6 and the 1921 Oklahoma damages statute, indicate a recognition of the prima facie tort theory in Oklahoma. ¶13 This student article was first cited in 1990 by the Tenth Circuit in Merrick v. Northern Natural Gas Co., Div. of Enron Corp., 911 F.2d 426, 433 (10th Cir. 1990): This broad theory of [prima facie] tort liability has been adopted in only a handful of states, including Oklahoma. See Cressman, The Prima Facie Tort Doctrine in Oklahoma: Common Law Protection of Business From Unjustified Interference, 56 Okla. B.J. 1759, 1759 (1985). Nonetheless, the Merrick court refused to apply the prima facie tort theory to the facts in that case, and the Tenth Circuit later commented on Merrick’s observation that Oklahoma has adopted the theory.5 ¶14 Nonetheless, after 1990, cases in which plaintiffs pled a prima facie tort theory of recovery began to appear in Oklahoma. Between 1990 and 1999, several unpublished decisions of this Court rejected the availability of the prima facie tort theory based on the specific facts of the case, but did not comment on whether Oklahoma recognized the theory. In 1999, the Oklahoma Supreme Court, in Patel v. OMH Medical Center, Inc., 1999 OK 33, 987 P.2d 1185, stated: The expression “prima facie tort” does not appear ever to have been recognized in Oklahoma. For the view that the concept of prima facie tort has been applied in Oklahoma jurisprudence under limited circumstances, see Merrick v. Northern Natural Gas Co., 911 F.2d 426 (10th Cir. 1990). Id. at n.2, 987 P.2d at 1190 n.2. After 1999, unpublished cases from this Court have generVol. 81 — No. 24 — 9/11/2010

ally cited Patel as rejecting the application of the prima facie tort theory in Oklahoma.6 ¶15 It is clear from Patel that the term “prima facie tort” had not been previously recognized in Oklahoma, and that the theory had not been adopted with respect to acts constituting spoliation of evidence, or as a vehicle to provide tort damages for perjury or other litigationrelated misconduct. Id. at ¶¶ 44-45, 987 P.2d at 1202. Although Patel does not specifically hold that the prima facie tort theory of recovery is unavailable in any other circumstances, it certainly did so with respect to the facts before the Court in that case. Nonetheless, until the Supreme Court expressly adopts the prima facie tort theory of recovery, we are unwilling to do so. Therefore, we find it was error to instruct the jury with respect to that theory. II. The Prima Facie Tort Instruction Requires Reversal ¶16 Tarrant argues that, irrespective of any error in the prima facie tort instruction, the verdict and judgment should be upheld, pursuant to Mazzio’s Corp. v. Bright, 2002 OK CIV APP 45, ¶ 15, 46 P.3d 201, 204 (“This court will not disturb a jury’s verdict, or trial court judgment based thereon, where there is any competent evidence reasonably tending to support the verdict.”). Although the principle in Mazzio’s Corp., relied on by Tarrant is a correct statement of the law, it is not the only principle applicable in this case. A more complete statement is found in Florafax International, Inc. v. GTE Market Resources, Inc., 1997 OK 7, ¶ 3, 933 P.2d 282, 287. “Where such competent evidence exists, and no prejudicial errors are shown in the trial court’s instructions to the jury . . . the verdict will not be disturbed on appeal.” ¶17 Although we review jury instructions in their entirety, the applicable standard of review requires not only analysis of the accuracy of the statement of law, but also the applicability of the instructions to the issues in the case. Johnson v. Ford Motor Co., 2002 OK 24, ¶ 16, 45 P.3d 86, 92-93. Further, as in this case, when a jury is instructed on more than one issue and error affects one of the issues, “the error affecting one issue or theory in a case will be regarded as prejudicial where it is impossible to determine upon which of the two issues or theories the jury based its decision.” Hightower, 2003 OK 45 at ¶7, 70 P.3d at 840. See also Bredouw, 1966 OK 93 at ¶¶ 32-34, 431 P.2d at 420. Because a general verdict was rendered in this case, we are

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unable to determine whether the jury found Bank liable on Tarrant’s prima facie tort theory, one of the four theories on which the jury was instructed.7 As previously noted, “[f]undamental error occurs when the trial court does not accurately instruct the jury on the law.” Taliaferro, 2006 OK 96 at ¶ 25, 154 P.3d at 1248. Consequently, instructing the jury on prima facie tort was prejudicial and requires reversal of the judgment entered in favor of Tarrant.8 CONCLUSION ¶18 The Oklahoma Supreme Court has not previously recognized a theory of recovery based on prima facie tort, and we decline to do so in this case. Consequently, it was error to instruct the jury with respect to that theory. Because a general verdict was entered in this case, it cannot be determined whether the jury relied on the prima facie tort theory in rendering its verdict for Tarrant. Therefore, we find that Bank has demonstrated prejudicial error. The judgment of the district court in favor of Tarrant is reversed, and this case is remanded for further proceedings consistent with this Opinion. ¶19 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. WISEMAN, C.J., and BARNES, J., concur. 1. This Court subsequently overturned the verdict against Capstone, finding that the district court had improperly applied the summary judgment standard. Before the case went to trial a second time, Tarrant and Capstone settled. Tarrant also settled a discovery sanction awarded against Randy and Tom Holder, two individuals associated with Capstone. Prior to that settlement, this appeal (Case No. 106,630) had been consolidated with the Holders’ appeal of the sanctions issue in Case No. 106,361. The Holders’ dismissal of their appeal after settlement leaves for this appeal only issues regarding Tarrant’s judgment against the Bank. 2. The prima facie tort instruction requested by Tarrant and given by the district court provides: Plaintiff alleges that Defendant conspired with Capstone to cause Plaintiff to enter into the second AFE and the Supplemental Agreement. A prima facie tort exists if Defendant acted in any of the following ways that caused damage to Plaintiff: 1. Defendant acted with the intent to injure Plaintiff, or 2. Defendant knew that plaintiff was in such a condition that Defendant’s conduct would result in injury, and defendant wilfully disregarded the consequences of its actions, or 3. Defendant acted with malice towards plaintiff as would indicate a conclusion that its actions were in disregard of whatever harm might follow from its actions. 3. This test requires, among other factors, an assessment of competing societal interests, the degree of harm caused by the conduct, the actor’s motive, and the relationship of the conduct to currently recognized torts. See Restatement § 870 cmts. c-j. 4. Three of these cases involved attempts to destroy a plaintiff’s business by spreading false rumors regarding the plaintiff’s reliability, reputation, and business practices. The courts described these acts in terms of “conspiring together to willfully and maliciously injure plaintiff in his profession and business without just cause or excuse.” Magnum Elec. Co. v. Border, 1923 OK 547, ¶ 5, 222 P. 1002, 1005. These cases most closely mirror the modern tort theory of tortious interference with contract or advantageous business relationship. See Wilspec Techs., Inc. v. DunAn Holding Group Co., Ltd., 2009 OK 12, ¶ 15, 204 P.3d 69, 74. The fourth case

2024

involved a landowner building a high wall on the edge of his property with the intent of shutting out light and air to an apartment building on the adjoining lot, and states the modern theory of “nuisance.” 5. In Cardtoons, L.C. v. Major League Baseball Players Ass’n, 335 F.3d 1161, 1167 (10th Cir. 2003), the Tenth Circuit stated: “Cardtoons’ only authority for the existence of [a prima facie tort] is an opinion of this court in which, in the absence of any authoritative Oklahoma case law and relying solely on an article in the Oklahoma Bar Journal, we stated that Oklahoma appeared to have adopted the tort. See Merrick v. Northern Natural Gas Co., 911 F.2d 426, 433 (10th Cir.1990). . . . Our cases are not binding on the Oklahoma courts with respect to Oklahoma law. Since our decision in Merrick, the Oklahoma Supreme Court has explained that “the expression ‘prima facie tort’ does not appear to have ever been recognized in Oklahoma.” 6. See Langlee v. ONEOK, Inc., Case No. 99,806, slip op. at 4 (March 30, 2004) (“Oklahoma has not recognized prima facie tort actions . . . Recognition of such a cause of action rests not with this Court acting as an error correcting Court, but rather with this State’s Supreme Court.”). See also Selby v. Mid-Continent Casualty. Co., Case No. 101,214, slip op. at 4-5 (March 29, 2005) (“The Oklahoma Supreme Court has not recognized either spoliation of evidence or prima facie tort actions.”); Toolpushers Supply Co. v. Kris Agrawal, Case No. 101,163, slip op. at 10-11 (August 29, 2006) (“Last, [plaintiff’s] assertion that the trial court failed to recognize a “prima facie claim for deceit” in the counterclaim has no merit . . . Oklahoma has not recognized prima facie tort actions . . . Recognition of such a cause of action rests with the Supreme Court.”). 7. Bank asked the district court to submit separate verdict forms to the jury specific to each of Tarrant’s theories of recovery. The district court denied Bank’s request. 8. In addition, Bank correctly argues that the instruction given incorrectly states the elements of a prima facie tort as defined in those jurisdictions that recognize the tort. The instruction is incompatible with the required elements of a prima facie tort claim. The states recognizing prima facie tort all require that the act triggering prima facie tort liability be otherwise lawful. Tarrant’s requested instruction did not accurately state the law as adopted in those jurisdictions. See Susskind v. Ipco Hosp. Supply Co., 49 A.D.2d 915, 915, (N.Y App. Div. 1975) (“A cause of action based upon an alleged prima facie tort is insufficient when the basic allegations therein are the grounds for causes of action in ‘traditional tort’. . . .”). New York, the state with the oldest and best established prima facie tort doctrine, further requires “disinterested malevolence” as an element of a prima facie tort claim. See Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 571 (2d Cir.1990) (explaining that, under New York law, the “touchstone [of a prima facie tort claim] is ‘disinterested malevolence’, meaning that the plaintiff cannot recover unless the defendant’s conduct was not only harmful, but done with the sole intent to harm[;]” and that “motives other than disinterested malevolence, such as profit, self-interest, or business advantage will not suffice under the doctrine of prima facie tort.”).

2010 OK CIV APP 83 DAVID S. FRIEDMAN, Plaintiff/Appellee, vs. STEVEN LEE CRAIG, an individual, d/b/ a City Properties and d/b/a Craig Real Estate Services, Defendant, and FLORENCE LOUISE GAVIGNO, Defendant/Appellant. Case No. 106,614. August 6, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE BARBARA J. SWINTON, JUDGE AFFIRMED Ruston C. Welch, WELCH LAW FIRM, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee, Holly Hefton, HOLLY HEFTON, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant.

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Wm. C. Hetherington, Jr., Judge: ¶1 Defendant Florence Louise Gavigno (Appellant) appeals the trial court’s denial of her motion to vacate the summary judgment entered in favor of Plaintiff David Friedman (Appellee) and against Appellant. Finding no abuse of discretion, the order is AFFIRMED. STANDARD OF REVIEW ¶2 Appellant filed her Petition in Error December 10, 2008, indicating the appealable order is “November 10, 2008,” the filing date of the trial court’s order denying Appellant’s motion to vacate the trial court’s order disposing of Friedman’s summary judgment motion. Because Appellant filed her post-trial motion more than 10 days but less than 30 days after the filing of that judgment, this appeal is limited to the trial court’s order disposing of Appellant’s term-time motion to vacate.”1 Kordis v. Kordis, 2001 OK 99, ¶6, 37 P.3d 866, 869. We review such orders to determine whether sound discretion was exercised upon sufficient cause shown to refuse the relief sought. Id. “An abused judicial discretion is manifested when discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194. FACTS ¶3 Friedman, a resident of California and owner of commercial property in Oklahoma, filed a petition in January 2007, alleging numerous causes of action including embezzlement against Appellant’s son, Steven Lee Craig, who had managed Friedman’s property until September of 2006, and a single cause of action of “fraudulent conveyance” against Appellant. Under the latter, Friedman claimed Craig and Appellant had owned their residence as joint tenants with rights of survivorship until Craig executed a quit claim deed in October 2006 transferring his interest to Appellant without value, at a time Craig was insolvent and when Appellant knew or had reasonable cause to believe he was insolvent. ¶4 Counsel, who had entered an appearance for both defendants and filed an answer on behalf of Appellant,2 moved to withdraw as her attorney of record on July 22, 2008, alleging Appellant’s failure to communicate and to provide documents requested by Friedman. On the same date, Appellant’s counsel mailed a Vol. 81 — No. 24 — 9/11/2010

copy of the motion to Appellant and Friedman’s counsel, from whom Appellant’s counsel had previously sought approval. Three days later, July 25, 2008, Friedman’s counsel filed a motion for summary judgment against Appellant only, set the hearing for September 5, 2008, and served the motion on Appellant’s counsel.3 ¶5 Appellant did not attend the hearing on her attorney’s motion to withdraw August 22, 2008, and having no objections, the trial court approved that order. Appellant’s now former counsel mailed a copy of the order to Appellant with which she enclosed a letter dated August 25, 2008, explaining her options to prevent default judgment and loss of her home.4 Appellant received the order and notice “on or about August 26, 2008.” ¶6 No response or objection to Friedman’s summary judgment motion was filed within fifteen days of its service or prior to the September 5, 2008 hearing, at which only Friedman’s counsel attended. In the Journal Entry of Judgment filed September 5, 2008, the trial court granted, in relevant part,5 judgment in favor of Friedman and against Appellant and certified the order as final pursuant to 12 O.S.2001 § 994(A).6 ¶7 Appellant received the September 5, 2008 Judgment “on or about September 6, 2008.” Shortly thereafter, she obtained new counsel, who filed on September 29, 2008, a motion to vacate the September 5, 2008 Judgment, citing “12 O.S.2001 § 1031.1” as authority. The motion included affidavits to support Appellant’s defense against a fraudulent conveyance, i.e., the transfer of the joint tenancy interest in Appellant’s home to Craig in 2001 was an estate planning device necessitated by her heart surgery and a concurrently-executed second deed, which would have transferred Craig’s interest back to Appellant. The affidavit swore this deed was lost and never filed, requiring Craig’s execution of the 2006 quit claim deed. ¶8 Friedman opposed the motion, arguing, inter alia, Appellant’s motion was void of any § 1031.1 ground and also failed to state sufficient cause to justify exercise of the trial court’s termtime power. A hearing was held October 31, 2008, subsequent to which the trial court filed an Order on November 10, 2008, denying Appellant’s motion to vacate. Her appeal followed.

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ANALYSIS ¶9 In her single proposition of error, Appellant argues the trial court should have vacated the September 5, 2008 Judgment due to an “irregularity in obtaining a judgment,” as permitted by 12 O.S.2001 § 1031.1(3). She contends the “irregularity” occurred when “the trial court entered judgment against her by default, due to her failure to respond to Friedman’s motion for summary judgment or to appear at the hearing held on that motion.” She further argues Friedman “obtained a default [judgment] against an unrepresented person who was under the belief she had until September 21st to hire an attorney.” ¶10 Appellant’s latter statement is technically accurate as to her status on September 5, 2008, however, her position that a “default judgment” was entered against her lacks both legal and record support. It is undeniable that default judgments are disfavored, but as Appellant’s sole authority also recognizes, “vacation of a default judgment is different from vacation of a judgment where the parties have had at least one opportunity to be heard on the merits.” Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, ¶5, 13 P.3d 480, 482. ¶11 “The granting of a summary judgment motion on the merits of a cause of action is an adjudication on the merits even when no response is made to the motion.” Union Oil Company v. Board of Equalization, 1996 OK 40, ¶12, 913 P.2d 1330, 1334. In contrast, a default judgment pursuant to District Court Rule 4, to which we presume Appellant’s argument refers, is granted simply for a failure to respond. Id., at ¶13. ¶12 A trial court cannot grant summary judgment simply because it is unopposed; it must examine whether the materials offered substantiate granting judgment for the moving party. Id. Our review of the face of the September 5, 2008 Judgment finds Appellant “was properly served with this Motion through [Hefton], and has wholly failed to answer [Friedman’s] Motion and is thus in default.” However, the same judgment also expressly finds the trial court examined the file and that “[Friedman’s] motion for summary judgment is meritorious.” The presence of such rulings distinguishes an order granting summary judgment from one granting a default judgment. Id; see also Sandusky v. Graham and Associates, Inc., 2026

1988 OK CIV APP 14, 766 P.2d 370. We decline to characterize the September 5, 2008 Judgment as a default judgment, and because the issue of a substantial hardship has only been considered by this Court when reviewing the grant or denial of a motion to vacate a default judgment, we need not consider that issue here. Ferguson Enterprises, Inc., supra at ¶5. ¶13 Furthermore, “irregularity,” as used in § 1031.1, generally relates to the existence of a serious jurisdictional defect, such as lack of service, notice or jurisdiction of either the parties or subject matter, not to the substance of the order. Board of Trustees of the Town of Davenport v. Wilson, 1998 OK CIV APP 4, ¶3, 953 P.2d 764, 765. A defendant’s failure to respond to a lawsuit after proper notice does not present an “irregularity” so as to permit vacation of a judgment or order. Id. ¶14 Appellant’s affidavit attached to the motion to vacate states “until [she] received the [September 5, 2008 Judgment], [she] had no knowledge that a hearing on the Motion for Summary Judgment had been scheduled.” (Emphasis added.) However, the evidence presented to the trial court during the vacation proceedings regarding the notice provided to Appellant demonstrates (1) within the same week Friedman’s motion for summary judgment was filed on July 25, 2008 and served on her, Appellant’s former counsel forwarded the motion to Appellant, and (2) the hearing date and time for that motion, September 5, 2008 at 10 a.m., and the judge’s name were clearly marked on the front. As a result, the record on appeal does not establish a § 1031.1(3) “irregularity in obtaining a judgment” that justifies vacating the September 5, 2008 Judgment or that the trial court abused its discretion by refusing to vacate that Judgment. The order is AFFIRMED. BUETTNER, P.J., and HANSEN, J., concur. 1. Appellant’s motion to vacate was filed September 29, 2008, which is more than 10 days but less than thirty days from the filing of the trial court’s “Journal Entry of Judgment Against [Appellant]” on September 5, 2008. Decisions sustaining a motion for summary judgment and refusing to vacate that judgment are both final, appealable orders. Presbyterian Hospital, Inc. v. Board of Tax-Roll Corrections of Oklahoma County, 1984 OK 93, ¶13, 693 P.2d 611, 614. As a timely term-time motion, the trial court’s authority/power to vacate in this case was not restricted to any specific § 1031.1 ground. Schepp v. Hess, 1989 OK 28, ¶8, 770 P.2d 34, 38. 2. This information is obtained from the certified appearance docket in the record because the only instrument included in the appellate record between Friedman’s Petition and a Scheduling Order filed March 7, 2008 is a judge-signed order filed February 23, 2007 allowing the withdrawal of the attorney of record for Craig. The docket’s last reference to Craig is an “Affidavit of Steven Lee Craig In

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Answer To Claim Of Fraudulent Conveyance” filed on March 2, 2007, which is not included in the record. The remaining reference in the record about Craig is in Friedman’s Motion for Summary Judgment, which states Craig filed a Chapter 7 Bankruptcy Petition on March 25, 2008 and attached supporting documents. Appearance dockets, which cannot be accepted by a reviewing court as a proper substitute for the judge’s memorialized entry of judgment, of orders, or of any proceedings occurring at nisi prius, may be used to inform the appellate court about filings effected and about scheduled nisi prius events. Hammonds v. Osteopathic Hospital Founders Association, 1996 OK 100, n. 20, 934 P.2d 319, 323. 3. July 25, 2008 was the deadline for dispositive motions set by the Scheduling Order filed March 7, 2008. 4. Noting first the enclosure of the order allowing her withdrawal, she then instructed Appellant: You must do one of the following things within 30 days of the date of the order: 1. Hire an attorney 2. File for Bankruptcy protection. 3. Enter your appearance as representing yourself. If you fail to do any of these things, default judgment may be entered against you and you may lose your home. 5. The trial court found the transfer of Craig’s joint tenancy interest in the residential property to Appellant was a fraudulent transfer as to Friedman and that at the time of the transfer Friedman was a creditor of Craig. The trial court granted Friedman “a judgment in rem against [Appellant] and the joint tenancy with right of survivorship interest” in the amount of $143,845.16, plus pre-judgment interest from September 1, 2006 and post-judgment interest until paid. Friedman was also awarded $349.00 costs and $12,500 attorneys fees. 6. The trial court specifically found “there is no just reason for delay of entry of this Judgment.”

2010 OK CIV APP 84 BRENDA FULTON, Plaintiff/Appellant, vs. PEOPLE LEASE CORPORATION and MARK FINDLEY, Defendants/Appellees, and ERVIN FINDLEY TRUCKING, INC., Defendant. Case No. 106,675. March 5, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE CAROLYN R. RICKS, JUDGE AFFIRMED IN PART, REVERSED IN PART AND REMANDED Mark Hammons, Tamara L. Gowens, Hammons, Gowens & Associates, Oklahoma City, Oklahoma, for Plaintiff/Appellant, Debra W. McCormick, Kyle L. Buchanan, Rubenstein, McCormick & Pitts, PLLC, Edmond, Oklahoma, for Defendant/Appellee PeopLease Corporation, David P. Hartwell, Oklahoma City, Oklahoma, and Patricia A. Kirch, Oklahoma City, Oklahoma, for Defendant/Appellee Mark Findley. Wm. C. Hetherington, Judge: ¶1 Brenda Fulton (Plaintiff) appeals two trial court orders entered in her hostile work environment and retaliatory discharge action against Ervin Findley Trucking, Inc. (EFI), Mark Findley, and PeopLease Corporation Vol. 81 — No. 24 — 9/11/2010

(PeopLease).1 The first order sustained Findley’s separate motions to dismiss. The second order granted PeopLease’s motion of summary judgment, after which Plaintiff dismissed her claims against EFI. The two orders and dismissal, taken together, effectively disposed of all of her claims against all of the parties. ¶2 We reverse the trial court’s dismissal of Findley as to Plaintiff’s theory of tortious interference of economic relations and affirm the order in all other respects. Because our review of the record reveals disputed material facts which preclude summary judgment, the trial court’s summary judgment order in favor of PeopLease is also reversed and the case is remanded for further proceedings. THE FACTS ¶3 On March 16, 2008, Plaintiff filed a petition in Oklahoma County District Court against Mark Findley, “the operations manager of [EFI],” and EFI and PeopLease, corporations “doing business in [Oklahoma].” Under the paragraph entitled “Jurisdiction,” she alleged “gender discrimination, sexual harassment, hostile work environment, and retaliation in employment which conduct also constitutes for Burk tort for (sic) a violation of Oklahoma’s public policy against gender discrimination, sexual harassment and retaliation.” (Emphasis in original.) In the same paragraph, she further alleged “[a]ll of [her] gender related claims are prohibited by the Fourteenth Amendment of the United States Constitution, Title VII and Oklahoma Public Policy.”2 ¶4 Plaintiff specifically alleges she was “hired for Defendants” during which employment she was sexually harassed on a daily basis by Jimmy Thames (Thames) a male co-worker, who made sexual threats and subjected her to internet pornography and made inappropriate, offensive and sexual comments about other women in her presence. When Thames ignored her requests to stop, she reported his behavior to Findley during the first week of her employment. ¶5 Plaintiff claims she reported Thames’ behavior to Findley two weeks and one week before her termination on May 12, 2006. A few days after a third complaint, Findley retaliated with allegations that she had failed to dock her pay for one day of sick leave, which “claimed reason was pretextual” according to Plaintiff. Plaintiff was terminated a few days later without an explanation.

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¶6 EFI and PeopLease filed separate answers, in which each defendant specifically denied Plaintiff’s allegations and raised identical affirmative defenses, including “Plaintiff was employed at will.” Findley filed a Special Appearance and Motion To Dismiss, arguing there is no individual liability in Title VII cases. Plaintiff opposed his motion, claiming federal law does not control her state common law tort claim based on public policy. Findley replied,3 arguing Plaintiff’s state tort claim is precluded by an adequate federal statutory remedy for wrongful discharge. The trial court apparently sustained Findley’s motion by minute order.4 Prior to entry of a formal order, the court gave Plaintiff leave to amend her petition, which she did by adding two alternative theories of recovery against Findley, interference with economic relations and malicious wrong, and alleging his actions “were not in good faith, were for the intention to cause harm, were contrary to Oklahoma’s public policy and were not for any legitimate purpose of the business enterprise.”5 ¶7 Findley specially appeared and moved to dismiss the amended petition, arguing the new theories of recovery require rights or relations which an at-will employee does not possess. After Plaintiff opposed the motion and Findley filed a reply brief, the trial court filed a Journal Entry of Judgment sustaining Findley’s motions to dismiss. ¶8 Discovery after these dismissals revealed the following undisputed facts. Mark Findley is the general manager/vice president for EFI, a trucking company owned by his father, Ervin Findley. PeopLease is a personnel leasing company based in South Carolina which has a “Service Agreement” to lease its employees to EFI, executed by Ervin Findley, as President of EFI. Pursuant to the EFI-PeopLease Service Agreement, PeopLease leased Plaintiff to EFI to work as an office assistant on February 27, 2006, which position she held until terminated on May 12, 2006. ¶9 PeopLease later moved for summary judgment, denying liability because it was not Plaintiff’s single employer under Title VII. Even if it were, PeopLease argued it had no notice of Plaintiff’s harassment complaints because she failed to report directly to PeopLease as required by its rules and procedures. Plaintiff responded with additional evidentiary material to support her argument, inter alia, PeopLease qualified as an employer under 2028

Title VII because it had retained control over her employment with EFI. Based on the briefs and relevant law, the trial court entered summary judgment in favor of PeopLease, without specifying the bases for its decision. Following the filing of the trial court’s order and dismissal of EFI, Plaintiff filed this appeal.6 THE APPEAL FINDLEY’S MOTIONS TO DISMISS STANDARD OF REVIEW ¶10 Appellate review of a trial court order dismissing a case for failure to state a claim upon which relief can be granted is de novo. Fanning v. Brown, 2004 OK 7, 85 P.3d 841. Reviewing a motion to dismiss to determine whether a petition is legally sufficient requires that we take as true all of the challenged pleading’s allegations and all reasonable inferences which may be drawn from them. Id. “A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the plaintiff can prove no set of facts which would entitle him or her to relief.” Frazier v. Bryan Memorial Hospital, 1989 OK 73, ¶13, 775 P.2d 281, 287. A plaintiff is required neither to identify a specific theory of recovery nor to set out the correct remedy or relief to which he may be entitled. May v. MidCentury Ins. Co., 2006 OK 100, ¶10, 151 P.3d 132, 136. If relief is possible under any set of facts which can be established and is consistent with the allegations, a motion to dismiss should be denied. Id. The party moving for dismissal pursuant to 12 O.S.2001 § 2012(B)(6) has the burden to show the legal insufficiency of the petition. Indiana National Bank v. State of Oklahoma, Dept. of Human Services, 1994 OK 98, 880 P.2d 371. Lack of Individual Liability ¶11 Findley argues he should be dismissed because individual liability suits are not permitted in Title VII cases. Plaintiff expressly agrees as to this dismissal, but states “at present, [her] claims arise solely under the public policy announced in Oklahoma’s Anti-Discrimination Act (OADA), 25 O.S.2001 § 1101 et seq.” (Emphasis added.) Her claim is a common-law Burk tort arising out of OADA.7 ¶12 Plaintiff’s sole argument against Findley’s dismissal is, unlike the federal law, the OADA does permit suits against individuals, because § 1301(1) defines “employer” as “a person who has fifteen or more employees . . . [including] an agent of such a person”8 and “person,” as defined in § 1201(5), includes “an

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individual.” Without addressing these definitions, Findley replies he can not be Plaintiff’s “employer” for purposes of the OADA “since he was her supervisor and fellow employee of one of the corporate Defendants.” ¶13 A similar argument against individual liability in a Burk tort claim has been addressed by another panel of the same division of the Court of Civil Appeals in Eapen v. McMillan, 2008 OK CIV APP 95, 196 P.3d 995. The plaintiff in Eapen filed a petition in state court alleging racial and national origin discrimination, hostile work environment, disparate treatment and wrongful termination against his supervisor at Dell Marketing L.P. The defendant moved to dismiss, arguing the plaintiff’s public policy Burk tort claim did not extend to include individual liability. ¶14 The Eapen Court reviewed the supervisor’s argument under the standard of review for a motion for summary judgment and held: We glean no “clear mandate” of public policy imposing individual liability for tort discharge under § 1301(1) and Saint. Contrary to Eapen’s position, § 1301(1) does not provide the “clear mandate” required to extend Burk to the point that a co-worker or supervisor in the workplace would be individually liable for a public policy tort. At present, nothing in Burk or its progeny seems to extend the concept of “employer” that far. The trial court’s decision dismissing Eapen’s Burk-tort claim is affirmed. Id., 2008 OK CIV APP 95, ¶11, 196 P.3d at 998. Because § 1201(5), as argued by Plaintiff, was not discussed in Eapen, we will consider it in conjunction with § 1301 to determine if Plaintiff’s interpretation has merit. ¶15 Statutory interpretation presents a question of law. Fanning v. Brown, 2004 OK 7, 85 P.3d 841. The fundamental rule of statutory construction is to ascertain and give effect to the legislative intent, first sought in the language of a statute. Id. Courts will give the words of a statute a plain and ordinary meaning, unless a contrary intention plainly appears. Id. When the language of a statute is plain and unambiguous, no occasion exists for application of rules of construction, and the statute will be accorded meaning as expressed by the language employed. City of Durant v. Cicio, 2002 OK 52, 50 P.3d 218. We must consider the statute as a whole, not just individual proviVol. 81 — No. 24 — 9/11/2010

sions. Bank of Oklahoma, N.A. v. Welco, Inc., 1995 OK CIV APP 43, 898 P.2d 172. ¶16 The stated purpose of the OADA is to implement the policies embodied in several federal statutes, including Title VII. See § 1101(A) and Tate v. Browning-Ferris, Inc., 1992 OK 72, 833 P.2d 1218. Pursuant to § 1101(B), the OADA “shall be construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provision involved.” ¶17 The majority of federal circuit courts hold that relief granted under Title VII is against the employer, not individual employees whose actions constitute a violation of the Act. Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996). “The proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly.” Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 72 106 S.Ct. 2399, 2408 (1986)(“Congress’ decision to define “employer” to include any “agent” of an employer, 42 U.S.C. §2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible.”) ¶18 We conclude the Legislature did not intend to make individual employees personally liable for discrimination actions brought under the OADA, which intent is apparent from a clear reading of § 1301(1) and § 1201(5) of the OADA. Section 1302 of the OADA prohibits discriminatory practices by an “employer.” “Employer” is defined in § 1301(1) as “a person with more than 15 employees” and “an agent of such a person” Under § 1201(5) of the OADA, “person” includes an “individual” and a long list of entities commonly having employees.9 Interpreting these statutes, together, the Legislature’s inclusion of “individual” simply recognizes that an individual or sole proprietor with the requisite number of employees may too qualify as an “employer” for purposes of liability under the OADA. ¶19 Based on the foregoing analysis, we conclude the addition of § 1201(5) re-enforces the holding in Eapen that there is currently no clear mandate of public policy imposing individual liability in Burk tort claims. As a result, we affirm the trial court’s dismissal of Findley

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from Plaintiff’s Title VII and OADA based Burk tort claims. Failure to State a Claim For Intentional Interference with Economic Relations ¶20 In Plaintiff’s amended petition, she alleges Findley is individually liable because “his actions constitute an interference with Plaintiff’s economic relationship with both [EFI] and [PeopLease].” (Emphasis added.) For dismissal of this theory, Findley argues: (1) Plaintiff has no “business or economic right or relations” with which he could have interfered because she is an at-will employee, and (2) she has no employment contract. He relies on Ellison v. An-Son Corp., 1987 OK CIV APP 71, ¶13, 751 P.2d 1102, 1106, for the following elements for “malicious interference with business or contract relations”: 1. That he or she had a business or a contractual right that was interfered with. 2. That the interference was malicious and wrongful, and that such interference was neither justified, privileged nor excusable. 3. That damage was proximately sustained as a result of the complained of interference. (Emphasis added) Specifically limiting his argument to the first element, Findley contends Plaintiff is in the same position as the plaintiff in Ellison, whose interference claim was dismissed for lack of a business or contractual right to a lease of Indian land. ¶21 Findley argues the Court in Martin v. Johnson, 1998 OK 127, 975 P.2d 885, “did not hold that an at-will employee like [Plaintiff] may bring such suit. Instead, the holding in Martin and all similar cases in Oklahoma is that an employment contract must first exist before tortious interference with it can occur.” He then distinguishes the non-tenured teacher in Martin who had an employment contract from Plaintiff here, who he claims is an at-will employee with no employment contract. Findley finally argues there is no authority in Oklahoma recognizing a cause of action for interference with business or economic relations in the context of an employee who is terminated by her superior, relying on Overbeck v. Quaker Life Ins. Co., 1984 OK CIV APP 44, 757 P.2d 846. ¶22 Plaintiff disagrees, claiming “it is clear” Martin does apply to at-will employment because the teacher was non-tenured and the 2030

interference occurred after expiration of her contract. She asserts Overbeck dealt only with prospective economic relations and not with interference of an existing contract. This specific distinction was recognized by the Court in McNickle v. Phillips Petroleum Co., 2001 OK CIV APP 54, 23 P.3d 949, when holding an at-will employment relationship may be subject to tortious interference. ¶23 Plaintiff further asserts “employment” is a “business or contractual” right even if it is at-will, relying on Groce v. Foster, 1994 OK 88, ¶8, 880 P.2d 902, 905, for holding “[i]n an atwill employment setting the relationship between the employer and employee is contractual or promise-based — express or implied.” She relies not only on federal authorities10 but also the earliest Oklahoma cases recognizing interference with contractual rights and discussing its application in at-will employment relationships. See Schonwald v. Ragains, 1912 OK 210, ¶27, 122 P.203, 210 and Stebbins v. Edwards, 1924 OK 227,¶5, 224 P.714, 715. ¶24 Findley concedes a “third party” to an at-will employment relationship may be liable for interference with such relationship “in some situations,” but reasserts Martin does not support an action for interference by an at-will employee with no employment contract. Findley then argues for the first time “actions for tortious interference with business relationships must be brought against a person who is not a party to the at-will relationship” and “[he] was Plaintiff’s supervisor . . . not a third party to her employment relationship.” ¶25 Based on the pleadings and the parties’ arguments for dismissal, the dispositive legal issue is whether Plaintiff, an at-will employee, possessed any right at the time of her termination which, under Oklahoma law, would qualify her for protection from an interference with her “economic relations with EFI and PeopLease.” Before proceeding with our analysis, we clarify several preliminary matters. ¶26 Plaintiff does not allege an express contract or implied promise for a definite term of employment. There are no allegations in her petitions explaining her exact relationship with EFI and PeopLease. Considering her argument against dismissal based on at-will employment and supporting authorities, we assume as does Findley, Plaintiff is an at-will employee for purposes of deciding whether the trial court cor-

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rectly dismissed her “interference with economic relations” theory against Findley. ¶27 We note “the terms ‘malicious interference,’ ‘intentional interference,’ and ‘tortious interference’ with contract or business relations have been used interchangeably in Oklahoma jurisprudence, and do not designate distinct torts.” Tuffy’s Inc. v. The City of Oklahoma City, 2009 OK 4, ¶15, 212 P.3d 1158, 1166. However, because Plaintiff has specifically pled “interference with economic relations,” we deem it necessary to clarify the often confusing and poorly pled available options in Oklahoma. ¶28 The Supreme Court recently explained “the intentional tortious interference claims” Oklahoma has long embraced are found in Restatement (Second) of Torts (R.S. Torts) § 766, which “applies to interference with a third party’s performance of an existing contract,” and § 766B, which “applies to interference with prospective contractual relations not yet reduced to contract.” Wilspec Technologies, Inc. v. DunAn Holding Group, Co., Ltd., 2009 OK 12, ¶6-7, 204 P.3d 69, 71. However, these torts are not synonymous. Overbeck, ¶6, 757 P.2d at 848. ¶29 Claims covered by R.S. Torts § 766 are most commonly referred to by Oklahoma Courts as “interference with contract or business relations.” Mac Adjustment Inc. v. Property Loss Research Bureau, 1979 OK 41, 595 P.2d 427. Numerous name variations for this tort action are pled based upon specific facts alleged in each case, including “interference with contract,” e.g. Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, 911 P.2d 1205, “interference with contractual relationship,” e.g. Morrow Development Corp. v. American Bank & Trust Co., 1994 OK 26, 875 P.2d 411, “interference with business relationship,” e.g. Waggoner v. Town & Country Mobile Homes, Inc., 1990 OK 139, 808 P.2d 649, and “interference with business relations,” e.g. Green Bay Packaging Inc. v. Preferred Packaging Inc., 1996 OK 121, 932 P.2d 1091. However, the terms “contract or contractual relations” are not synonymous with “business relations or business relationship.” See OUJI - Civil No. 24.1. The former terms refer to a wrongful interference with an existing contract while the latter terms refer to an interference with an existing business relationship. ¶30 When addressing prospective contractual relations, claims under R.S. Torts § 766B, Oklahoma courts have consistently used “interference with prospective economic advantage,” Vol. 81 — No. 24 — 9/11/2010

see Brock v. Thompson, 1997 OK 127, n.58, 948 P.2d 279, and Crystal Gas Co. v. Oklahoma Natural Gas Co., 1974 OK 34, 529 P.2d 987, or “interference with prospective economic relations,” see Gaylord Entertainment Co. v. Thompson, 1998 OK 30, n. 96, 958 P.2d 128. “Interference with a prospective economic advantage usually involves interference with some type of reasonable expectation of profit.” Overbeck, ¶4, 757 P.2d at 847. ¶31 Our research of published Oklahoma cases reveals “interference with economic relations” was used synonymously with “interference with prospective business relations” in Findley’s authority, Ellison v. An-Son Corp., 1987 OK CIV APP 71, 751 P.2d 1102.11 Plaintiff initially alleged “interference with economic relations.” She does not question the applicability of the “malicious interference with contractual or business relations” elements from Ellison. She also distinguished Overbeck, arguing it did not deal with “interference with existing relations.” Based on this discussion, we treat the theory she specifically pled against Findley,” interference with economic relations with EFI and PeopLease,” as one for “interference with an existing contract or business relations.” We now turn to the dispositive issue, whether Plaintiff possesses any contract or business right in her at-will employment relationship protected from intentional or tortious interference under Oklahoma law. ¶32 Findley essentially argues the non-tenured teacher in Martin was not an at-will employee,12 because her contract was in writing and provided for a definite duration of employment. However, Plaintiff’s “hiring” by EFI and PeopLease in this case would qualify as an employment contract for an indefinite period. Corder v. Oklahoma Medical Research Foundation, 1999 OK CIV APP 33, 980 P.2d 1122. ¶33 As between an employer and employee, Oklahoma Courts have long recognized “the basic principle that an employment contract of indefinite duration may be terminated without cause at any time without incurring liability for breach of contract. Such indefinite employment contracts are deemed terminable-at-will.” (Emphasis added.) Burk v. K-Mart Corp., 1989 OK 22, ¶5, 770 P.2d 24, 26. But, an employer’s termination of an at-will employee in contravention of a clear mandate of public policy is a tortious breach of contractual obligations. Id. at ¶17.

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¶34 At issue here is not a Burk tort claim against either of Plaintiff’s employers, but instead whether Oklahoma recognizes an action for intentional interference with the employment contract brought by a discharged at-will employee against her supervisor. Plaintiff’s authorities generally support recognition of such an action against third parties who interfere with an at-will employment. See McNickles v. Phillips Petroleum Co., 2001 OK CIV APP 54, ¶10, 23 P.3d 949, 952 (“In the evolution of the tort of interference with the employment contractual relationship in Oklahoma, there is nothing to suggest that the tort would not apply in cases of interference with an at-will contract of employment when the party interfering acts without privilege.”) R.S.Tort § 766 explains that a defendant may not improperly interfere with “a contract” that, by its terms or otherwise, permits the third person to terminate the agreement at will. Until he has so terminated it, the contract is valid and subsisting. See Comment f and g. ¶35 Identification of the proper defendant, as Findley’s last argument challenges, becomes the next inquiry for tortious interference claims in the context of at-will employment. When answering a certified federal question concerning whether this state adopts R.S. Torts § 766A, the Wilspec Court cited Schonwald v. Ragains, 1912 OK 210, 122 P. 203, as the earliest of four Oklahoma cases which “[f]or the past seventyfive years, and well before the passage of § 766A in 1979 . . . has repeatedly protected contractual relationships between parties from unprivileged, unjustified, and inexcusable interference from one who is not a party to the contract or business relation.” (Emphasis added.) Wilspec, ¶11, 204 P.3d at 73. ¶36 We conclude Martin applies when determining whether an employer’s supervisor or other agent will be considered a party to the employment contract. The non-tenured teacher in Martin filed her action against the school district, the school district’s superintendent and its principal after the teacher’s employment contract with the school district was not renewed. Alleging her resistance to the principal’s advances was the reason for the nonrenewal, the teacher pled several theories of recovery, including conspiracy, sexual harassment, and tortious interference with her contract. The defendants moved to dismiss the latter theory of recovery, arguing the principal and superintendent were “agents” of the school 2032

district and could not interfere with her contract. The teacher resisted the motion, arguing the theory was viable if the individual defendants were acting outside the scope of their employment or contrary to the interest of the school district. After the trial court granted the dismissal motion, the teacher moved to amend her petition, which the trial court allowed except for her tortious interference with contract theory. ¶37 When addressing the teacher’s appeal of the order refusing her leave to amend the petition as to this theory, the Martin Court limited the issue to whether the petition could be amended to state a claim for relief against the individual defendants based upon the tort of interference with contract. The Court found the issue of “whether an agent could be held personally liable on an interference with contract claim if the agent was acting against the principal’s interests and in furtherance of the agent’s interests” had not been addressed. Id., 1998 OK 127, ¶30, 975 P.2d at 896. ¶38 The Martin Court recognized the issue had been addressed by the Tenth Circuit in the context of officers, agents or employees of a corporation interfering with the corporation’s contract in Mason v. Oklahoma Turnpike Authority, 115 F.3d 1442 (10th Cir.1997). After acknowledging federal court holdings on state law matters have no precedential value, the Martin Court nevertheless agreed with the Tenth Circuit that in Oklahoma an officer’s interference with the corporation’s contract will be privileged only if done in good faith. The Martin Court then held: It is fundamental that an employee or agent must act in good faith and in the interest of the employer or principal. If an employee acts in bad faith and contrary to the interests of the employer in tampering with a third party’s contract with the employer we can divine no reason that the employee should be exempt from a tort claim for interference with contract. (Cites and footnote omitted; emphasis added.) Martin, 1998 OK 127, ¶32, 975 P.2d at 896-897. Because the trial court had dismissed the plaintiff’s tortious interference claim based on the defendant’s legal argument without addressing the sufficiency of her proposed allegations, the Martin Court reversed the trial court’s order which had prohibited plaintiff from amending

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her tortious interference claim against the two employees of the school district. ¶39 Since Martin, Eapen v. McMillan, 2008 OK CIV APP 95, 196 P.3d 995, discussed above, specifically answered the question. The employee sued his supervisor alleging racial discrimination. The Court in Eapen reversed the trial court’s dismissal of the employee’s tortious interference with contract theory as between the employee and the supervisor. Relying on Martin, the Court in Eapen concluded the supervisor’s racial slurs and discriminatory behavior toward him were done in bad faith and then held, “[g]iven the facts alleged by Eapen and the exception in Martin, there is a legal basis for Eapin’s tortious interference claim.” Id., ¶15, 196 P.3d at 998. ¶40 In this case, Plaintiff alleges in her amended petition that Mark Findley failed to stop the sexual harassment about which she made three complaints and he responded to her last complaint by claiming she failed to dock her pay for sick leave. Because “this claimed reason was pretexual,” “retaliatory,” and resulted in her termination the next day, Plaintiff alleges “Findley’s actions were “not in good faith” and “not for any legitimate purpose of the business enterprise.” Taking the allegations in Plaintiff’s amended petition as true, we conclude, based on Martin and Eapen, the trial court erred in dismissing Plaintiff’s tortious interference theory of recovery against Mark Findley. Failure to State a Claim for Malicious Wrong ¶41 For dismissal of Plaintiff’s alternative theory of recovery, Findley argues the “archaic tort” of malicious wrong was last recognized by Oklahoma courts over half a century ago. Relying primarily on Hibbard v. Halliday, 1916 OK 649, 158 P. 1158, he claims its application was limited to injuries to property rights, which he claims is lacking in Plaintiff’s at-will employment. Since its last application, Findley contends this tort “has been replaced by statutory schemes governing wrongful conduct.” He finally claims “Oklahoma does not and would not” apply the tort in the context of employment discrimination for which there are adequate legal remedies. ¶42 Both parties acknowledge, the tort of “malicious wrong” was first discussed in Mangum Electric Co. v. Border, 1923 OK 547, ¶9, 222 P. 1002, 1005, as follows: Vol. 81 — No. 24 — 9/11/2010

[t]he intentional doing of that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another, or that other person’s property or trade is actionable, if done without just cause or excuse. Such intentional action when done without just cause or excuse is what the law calls a malicious wrong. (Emphasis added.) After pointing out the Mangum Court’s definition of malicious wrong was subsequently recognized by the Court in Ward v. First National Bank, 1937 OK 449, 69 P.2d 1041, Plaintiff argues Oklahoma has “expressly adopted the [R.S. Torts] § 870 cause of action.” ¶43 Although we agree with Findley there is no express adoption of the R.S.Torts § 870 in either Ward or Mangum, there are similarities between the two torts. Section 870, entitled “Liability for Intended Consequences — General Principle,” provides, “[o]ne who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances.” Intentional conduct “when done without just cause or excuse,” as required for a malicious wrong claim, clearly equates to conduct that is “not justifiable.” ¶44 Further comparison of the two torts reveals the Mangum Court’s definition of “malicious wrong” has a significantly broader reach of rights or interests sought to be protected from intentionally-caused harm or injury than provided by § 870. Whereas the latter applies to injury or harm to “another,” the tort of malicious wrong encompasses not only damages to “another,” but also “to that other person’s property or trade.13 ¶45 The Mangum Court, after recognizing other states’ definitions of “malicious wrong” and “a wrongful act”, held “[i]t is a well settled rule of law in this class and character of cases that ‘malice’ is an essential ingredient in an action for damages, and ‘malice’ is defined as the intentional doing of a wrongful act done intentionally, without just cause or excuse.” Id., 1923 OK 547, ¶11. ¶46 For the definition of “malice,” the Mangum Court relied on Schonwald v. Ragains, 1912 OK 210, 122 P. 203, which first applied the tort of “malicious interference with contract,” expressly holding “it is an actionable tort for one to maliciously interfere with a contract between two parties, and induce one of them

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to break that contract, to the injury of the other.” Id., ¶0. The Schonwald Court further explained “[b]y the term ‘malicious’ we do not mean that defendants were actuated by motives of ill will against [plaintiff] personally, but by it is meant an unreasonable and wrongful act done intentionally, without just cause or excuse.” (Emphasis added.) Id., ¶31. ¶47 Four years later, Hibbard was decided. The Court held that a wall constructed in such a manner as to interfere with the enjoyment of adjoining property constituted an actionable wrong, based in part on the principal “at common law there was a cause of action, whenever one person did damage to another willfully and intentionally, and without just cause or excuse.” Hibbard, ¶ 6-7. ¶48 As Schonwald and Hibbard demonstrate, the more specific tort of malicious or intentional interference of contract or property, discussed above, developed from the common law general tort of malicious wrong. In each case, despite the availability of the general tort, the Court adopted and applied the specific tort for an intentional interference “with contract” or “with real property” to the respective facts, right or interests specifically alleged in the plaintiffs’ petitions. In Mangum, when the Court was later presented with allegations of malicious and wrongful conduct which did not involve an interference with either a contract or property, but instead injury or damage to the plaintiff’s profession, the Court applied the general “malicious wrong” theory. ¶49 Our Court’s recognition and application of these two torts as distinct and independent torts is supported by the Introductory Note for R.S. Torts § 766, which states, “[§ 870] presents a generalization affording guidance regarding the treatment of intentional torts outside the scope of the established, crystallized torts.” See also Comment (a) to R.S. Torts § 870 (“It is intended to serve as a guide for determining when liability should be imposed for harm that was intentionally inflicted, even though the conduct does not come within the requirements of one of the well established and named intentional torts.”) ¶50 We recognize a plaintiff need not specify a theory or remedy to survive a motion to dismiss, but in this case, Plaintiff pled the more specific tort of interference with economic relations and, in the alternative, the general tort of malicious wrong. The above discussion leads us to con2034

clude we find no fault with the dismissal below of the general tort of malicious wrong. PEOPLEASE’S MOTION FOR SUMMARY JUDGMENT STANDARD OF REVIEW ¶51 In determining whether summary adjudication was appropriate, we must examine the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact and PeopLease was entitled to judgment as a matter of law. Perry v. Green, 1970 OK 70, 468 P.2d 483. All inferences and conclusions to be drawn from the evidentiary materials must be viewed in a light most favorable to Plaintiff. Ross v. City of Shawnee, 1984 OK 43, 683 P.2d 535. We are limited to the issues actually presented below, as reflected by the record which was before the trial court rather than one that could have been assembled. Frey v. Independence Fire and Casualty Company, 1985 OK 25, 698 P.2d 17. ¶52 Summary judgment should be granted only if it is perfectly clear that there is no material fact at issue. Northrip v. Montgomery Ward and Co., 1974 OK 142, 529 P.2d 489. For summary judgment to be appropriate, the trial court must not only find there is no substantial controversy as to any material fact, but also that reasonable people could not reach differing conclusions from the undisputed facts. Even if the trial court anticipates that a directed verdict will be necessary, summary judgment must not deprive a litigant of the right to a jury trial of disputed facts. Flanders v. Crane Co., 1984 OK 88, 693 P.2d 602. ¶53 To prevail as the moving party on a motion for summary adjudication, one who defends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiff’s theory of recovery or (b) prove each essential element of an affirmative defense, showing in either case that, as a matter of law, the plaintiff has no viable cause of action. Akin v. Missouri Pacific R. Co., 1998 OK 102, 977 P.2d 1040. Status as an Employer for Liability under Title VII ¶54 We note at the outset, PeopLease “disputes Plaintiff suffered sexual discrimination, harassment or retaliation at the hands of EFI or

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its employees.” For purposes of this summary judgment motion only, PeopLease “assumes that such Title VII violations did occur” at EFI and does not challenge by summary judgment the existence of prima facie facts for hostile work environment, sexual harassment and retaliatory discharge. ¶55 After conceding “ both [it] and [EFI] were dual employers of [Plaintiff]” under Title VII’s definition of “employer,”14 PeopLease argues that it cannot be held jointly and severally liable for EFI’s alleged Title VII violations unless Plaintiff shows EFI and PeopLease together were Plaintiff’s “single employer.” This argument seeks to eliminate the threshold issue whether PeopLease, the entity which leased Plaintiff to EFI, also qualifies as her employer under Title VII. Our research reveals no Oklahoma state court authority in the context of this case involving an employee leasing company. ¶56 Under Title VII, it is an unlawful employment practice for an employer to “discriminate against any individual. . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). This federal statute prohibits sexual harassment which subjects an employee to a hostile work environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986). ¶57 “Title VII’s anti-retaliation provision forbids employer actions that ‘discriminates against’ an employee (or job applicant) because he has ‘opposed’ a practice that Title VII forbids . . .” Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 2410 (2006). A private right of action for retaliatory discharge, which may be brought and enforced in Oklahoma state courts, is separate from a claim for gender discrimination. Miner v. Mid-America Door Co., 2003 OK CIV APP 32, 68 P.3d 212. ¶58 PeopLease argues it and EFI should not be considered as one employer, because there is no evidentiary support for the following factors of the single employer test: (1) interrelated operations, (2) common ownership, (3) common management, and (4) centralized control over labor relations. Relating to the last factor, PeopLease claims it is undisputed “EFI retained complete control over [Plaintiff], including decisions to hire, assign work, discipline, and/ or terminate her,” while PeopLease “provided payroll administration and benefit services to EFI employees and staff.” Vol. 81 — No. 24 — 9/11/2010

¶59 PeopLease’s sole authority for this argument is Lambertsen v. Utah Department of Corrections, 79 F.3d 1024, 1029 (10th Cir. 1996), a summary judgment case in which the U.S. Court of Appeals Tenth Circuit affirmed the district court’s decision the employer was not liable under the “hybrid test.” Acknowledging the “single employer test” had not been raised below nor expressly adopted by the Tenth Circuit, the Court nevertheless found there was no evidence presented on any of that test’s four factors. ¶60 Plaintiff correctly argues the Tenth Circuit has since replaced the “hybrid test” with the “single-employer test” and the “jointemployer test” in Bristol v. Board of County Commissioners of the County of Clear Creek, 312 F.3d 1213, 1218 (10th Cir. 2002).15 Noting the use of the hybrid test in Lambertsen and by the district court in the order on review, the Bristol Court explained “[w]e take this opportunity, sitting en banc, to clarify that the hybrid test does not provide an appropriate framework in the present situation, where there is no allegation [the plaintiff] is an independent contractor of the Board.” Id., at 1218. Unlike the hybrid test, the Court found “both the joint-employer test and single-employer test are designed for situations where there is more than one alleged employer.” Id. The single-employer test addresses “whether two nominally separate entities should in fact be treated as an integrated enterprise,” whereas the joint-employer test “assumes that the alleged employers are separate entities” and analyzes “whether they co-determine the essential terms and conditions of employment.” Id. ¶61 Applying first the “joint-employer test,” the Bristol Court concluded “most important to control over the terms and conditions of an employment relationship is the ‘right to terminate’ it under certain circumstances.” Id. Because the State of Colorado’s constitution considered the two governmental entities distinct and separate and its statutes gave the sheriff exclusive control over the hiring and firing of its employees, the Bristol Court held the board was not liable under the joint-employer test for the negligent acts of the sheriff’s employees. ¶62 The board’s lack of control over the hiring and firing of the sheriff’s employees similarly eliminated the most important factor of the “single-employer” test, “centralized control of labor.” Declaring the decision whether

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an entity qualifies as an employer is generally a fact issue for the jury, the Bristol Court held “[i]n the instant case, however, our conclusion that neither the joint employer test nor the single-employer test can be satisfied requires judgment as a matter of law.” Id., at 1221. ¶63 Both tests were later applied in Sandoval v. City of Boulder, Colorado, 388 F.3d 1312 (10th Cir. 2004), a Title VII action filed by a police department employee against the City of Boulder (City). The employee, who worked in the Boulder Regional Communications Center (BRCC), alleged City was liable for the hiring discrimination by the BRCC Executive Committee. The employee moved for summary judgment, arguing City and BRCC were her “joint employers” or, in the alternative, they constituted a “single employer” for purposes of Title VII liability. The district court disagreed and the employee appealed the summary judgment order in favor of City. ¶64 Relying on Bristol, the Sandoval Court’s primary consideration when applying each test was whether City had the right to terminate the employment relationship. Id. at 1323-1324. The Court affirmed the summary judgment order, concluding City was not liable under either test because the employee had not demonstrated any disputed material fact which could show City shared or co-determined hiring or firing decisions for the position she had wanted. ¶65 In this case, PeopLease attaches no affidavits or other evidentiary material to support that it and EFI are separate entities. If we assume them to be separate entities, we agree with Plaintiff that PeopLease has potential liability under the joint employer test, because it retained control over the essential terms and conditions of her assignment to EFI, including termination and employment discrimination. ¶66 To support this argument, Plaintiff attaches the EFI-PeopLease Service Agreement, under which PeopLease “reserves the right of direction and control over Assigned Employees and retains the authority to hire, establish wages, fire, discipline and reassign Assigned Employees” and “shall have the exclusive right to terminate Assigned Employees covered by this Agreement.” The control EFI retained was, in relevant part, the “right to seek the termination” of any worker assigned to it by PeopLease, “so long as that . . . termination instruction does not violate [Title VII] . . . and any other similar law, rules or 2036

regulations governing employment relationships.” PeopLease then agrees to provide guidance “regarding compliance with these and other state and federal laws affecting Assigned Employees.” This evidentiary material clearly disputes PeopLease’s contractual role as merely providing payroll and benefits services16 to EFI and its employees. ¶67 PeopLease contends in its reply brief that the critical issue is which entity made the final decision to terminate, citing a Fifth Circuit case that applied only the single employer test. PeopLease relies on plaintiff’s deposition testimony that she reported the harassment and her termination to PeopLease to support its argument that it had a total lack of knowledge or participated in Plaintiff’s termination. This, standing alone, does not establish that conclusion as the only reasonable inference. ¶68 More importantly, PeopLease does not deny or dispute in any way its contractual control and actual participation in prevention of employment discrimination, which policies were part of PeopLease’s twenty-two page Standard Employee Handbook provided to Plaintiff on her first day of employment at EFI. ¶69 We have found no case dealing with an employee leasing company with this type of contractual control, however, courts have determined temporary employment or personnel agencies and their clients were joint employers and liable for Title VII violations during the employee’s period of assignment.17 See Mullis v. Mechanics & Farmers Bank, 994 F.Supp. 680 (M.D.N.C., 1997); Williams v. Grimes Aerospace Co., 988 F.Supp. 925 (D.S.C.,1997); Magnuson v. Peak Technical Services, Inc., 808 F.Supp. 500 (E.D.Va.1992); Amarnare v. Merrill Lynch, Pierce, Fenner & Smith, 611 F. Supp. 344 (D.C.N.Y. 1984), affirmed, 770 F.2d 157 (2nd Cir. N.Y. 1985). ¶70 The closest factual scenario to this case is Williams v. Grimes Aerospace Co., 988 F.Supp. 925 (D.S.C.,1997). Although the specifics of the contract between the staffing firm and its client were not discussed, the Williams court found a genuine issue of fact existed regarding the staffing firm’s status as an employer because the staffing firm “paid [the employee’s] wages, benefits and taxes,” “handled any complaints [the employee] had regarding her employment status,” and “did retain the right to hire and fire [her], the ultimate means of control.” Id., 988 F. Supp. at 936. Based on the authorities discussed above and the evidentiary material submitted by

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the parties, we conclude a genuine issue of fact exists regarding PeopLease’s status as Plaintiff’s employer under Title VII. To the extent the trial court determined PeopLease was not an “employer” under the joint employer theory, summary judgment in favor of PeopLease was error. IDENTIFICATION OF PEOPLEASE’S EXPOSURE FOR EMPLOYER LIABILITY ¶71 Even if it were an “employer” under Title VII, PeopLease argues it cannot be vicariously liable to Plaintiff because the undisputed facts demonstrate a co-worker, not a supervisor, sexually harassed her. It also argues liability under a negligence theory is eliminated because Plaintiff never notified PeopLease of the sexual discrimination complaints until after her termination, which it claims violates PeopLease’s rules and procedures. We address these distinct bases for Title VII employer liability under separate headings. Title VII Vicarious Liability ¶72 Employers are vicariously liable for sexual harassment by a supervisor with immediate or successively higher authority to make a “tangible employment decision” concerning the victimized employee, e.g., discharge, demotion, or undesirable reassignment, only if such action is taken. Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998); see also Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998). In this case, it is undisputed that Plaintiff was terminated, so the affirmative defense available to an employer when a supervisor sexually harasses a victim and no tangible employment action is taken does not apply here.18 ¶73 Seeking to avoid vicarious liability in this case, PeopLease relies on Hall v. Bodine Electric Co., 276 F.3d 345 (7th Cir. 2002), for holding an individual is not a supervisor for purposes of Title VII unless the employer has entrusted that individual with authority to directly affect the terms and conditions of a victim’s employment, i.e., hiring, firing, demotion, transfer or discipline. To support its argument Thames was not Plaintiff’s supervisor, PeopLease attaches: (1) excerpts from Findley’s deposition during which he testified he was Plaintiff’s supervisor during her employment at EFI, and as EFI’s general manager, he had the authority to hire and terminate her, (2) Plaintiff’s amended petition and U.S. Equal Vol. 81 — No. 24 — 9/11/2010

Employment Opportunity Commission (EEOC) Intake Questionaire in which she identified Thames as her “co-worker” and as “another employee,” respectively, and (3) Plaintiff’s deposition testimony admitting she considered Mark Findley to be her supervisor and she considered Thames to be a supervisor because he trained her and gave her work assignments two to three times per week. ¶74 Plaintiff argues the “narrow Seventh Circuit test” followed in Hall is “not the general rule” and “has been rejected by the Supreme Court and the EEOC”19 and “other circuits. . .in light of the EEOC’s guidance.”20 She asks this Court to adopt these authorities’ interpretation of Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998), as having expanded the term “supervisor” to include employees with responsibility for daily assignments, training, and controlling day-to-day activities. ¶75 We agree with this interpretation of Faragher, in which the U.S. Supreme Court reversed the Eleventh Circuit and reinstated the district court’s judgment holding City vicariously liable for the hostile work environment created by two males, whom the female lifeguard included as defendants in her sexual discrimination action. From the facts developed at trial, one of the defendants in Faragher had authority to hire new lifeguards, to give them oral reprimands, and to supervise all aspects of their work assignments, however, the other defendant was responsible only for making their daily assignments and for supervising work and fitness training. Even though the latter individual clearly had no authority to hire, fire, demote, or discipline the other lifeguards, the U.S. Supreme Court held reversal was necessary because it was undisputed “these supervisors ‘directly controlled and supervised all aspects of the plaintiff’s day-to-day activities’” and “were granted virtually unchecked authority” over their subordinates. Faragher, 524 U.S. at 808, 118 S.Ct. at 2293. ¶76 Since Faragher, the EEOC’s guidelines suggest vicarious employer liability when (1) an individual who directs another employee’s dayto-day activities but lacks authority to make tangible employment decisions,21 (2) the harasser does not have actual authority but the victim reasonably believes that he or she does.22 ¶77 Similarly, in the case at bar, the evidentiary material PeopLease submitted to the trial court establishes Thames trained Plaintiff and gave

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her work assignments two to three times per week. Plaintiff further supports her testimony “she considered Thames to be a supervisor,” by attaching excerpts of her deposition during which she also testified (1) when she asked Mark Findley how to do something he always told her to ask Thames, and (2) Thames gave her all of the PeopLease forms to complete on the first day at work at EFI. She also attached a copy of one of those forms, PeopLease’s “Terms of Employment,” which two-page document sets out, inter alia, Plaintiff’s “full-time” employment status with a 90-day probation period, weekly salary, and her work hours and days. At the bottom of the second page, there is a box labeled “EMPLOYEE & CLIENT COMPANY REPRESENTATIVE RESPONSIBILITY: ACKNOWLEDGEMENT,” which Plaintiff signed as “Employee” and Thames signed as the “Client Company Representative.” (Emphasis added.) ¶78 Plaintiff also received PeopLease’s “Welcome Letter” which is addressed to “PeopLease Corporation Leased Employees.” This letter, which first informs employees about the “employee leasing agreement” between PeopLease and the “client company”, and that “the client company, as your assigned supervisor, will direct your daily work.” It further states, in relevant part, PeopLease “shall be your employer . . . shall be responsible for paying your wages and the payroll taxes . . .will be responsible for complying with the various laws affecting your employment . . .[and] will work with a site supervisor to administer all human resources functions, including hiring, terminations, and disciplinary procedures.” Viewing the above-described evidentiary material in the light most favorable to Plaintiff, we conclude reasonable people could infer Thames was a supervisor for EFI or that it was at least reasonable for Plaintiff, as a new employee who was still under probation, to consider Thames to have supervisor authority. As a result, summary adjudication on the issue of vicarious liability was error. Title VII Negligence ¶79 With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1604.11(d). When the harassing conduct is by a co-worker or fellow employee, an employer 2038

may be liable on a claim for sexual harassment if it failed to remedy or prevent a hostile work environment of which management-level employees knew, or in the exercise of reasonable care, should have known. Adler v. WalMart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998). ¶80 PeopLease argues it had no notice of Plaintiff’s sexual harassment complaints until after her termination because she failed to comply with their rules. According to the antiharassment policy23 in PeopLease’s Standard Employee Handbook, Plaintiff was required to immediately notify Findley and PeopLease’s Human Resource Manager. Plaintiff argues she substantially complied by reporting to Findley, who she claims had a contractual duty to report all discrimination complaints to PeopLease. ¶81 Actual knowledge will be demonstrable in most cases where the plaintiff has reported harassment to management-level employees. Id. Findley admits Plaintiff made one complaint of sexual harassment to him, and although he contends he addressed the problem, Plaintiff testified during her deposition after the dismissals, that the harassment continued and that she made a total of four or five complaints. According to ¶3.2, entitled “Discrimination,” the EFI-PeopLease Service Agreement provides, in relevant part: [EFI] and its officers, directors, employees and agents shall not take or fail to take any action that, if [PeopLease’s] Assigned Employees were [EFI’s] sole employees, might cause or result in the filing of a claim under Title VII . . .or any similar law, rule or regulation governing employment relationships as amended, enacted now or later by any federal, state or local government entity. [EFI] shall immediately notify [PeopLease] of any such complaint of discrimination, whether or not filed as a claim under any applicable law with any appropriate court or agency, and Customer shall fully cooperate with [PeopLease] in [its] investigation of any such complaint by an Assigned Employee. Failure to report any such complaint or to fully cooperate in the investigation of such complaint shall be deemed a material breach of this Service Agreement by Customer. (Emphasis added.) ¶82 We conclude, in the light most favorable to Plaintiff, there are disputed material facts regarding whether PeopLease knew or should have known about Plaintiff’s harassment com-

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plaint and whether appropriate corrective measures were taken to prevent harassment or further harassment at EFI. We conclude the trial court erred in granting summary judgment in favor of PeopLease on the issue of Title VII negligence. ¶83 Because PeopLease’s summary judgment argument concerning Plaintiff’s retaliatory discharge claim is premised on its position it had no notice of her discrimination complaints, the existence of disputed material facts on this issue and ultimate control over Plaintiff’s termination, precludes summary judgment on her retaliatory discharge claim. CONCLUSION ¶84 The trial court’s dismissal of Plaintiff’s Title VII claims against Findley in his individual capacity is AFFIRMED. We REVERSE the trial court’s dismissal of Plaintiff’s interference with economic relations theory of recovery and AFFIRM as to dismissal of the malicious wrong theory. The trial court’s summary judgment order in favor of PeopLease on Plaintiff’s Title VII claims is REVERSED and the case is remanded for further proceedings. AFFIRMED IN PART, REVERSED IN PART AND REMANDED BUETTNER, P.J., concurs in part and dissents in part, and HANSEN, J., concurs. 1. In the body of the opinion, we use the correct spelling of Appellee’s name, “PeopLease Corporation,” which error is first pointed out in its Response to the Petition in Error. See Wilson v. Wilson, 1999 OK 65, n.1., 987 P.2d 1210. In Plaintiff’s response to this Court’s show cause order, she explains there was no entity known as “Ervin Findley Trucking, Inc.,” she did not learn EFI was “the real party in interest” until the summary judgment process, EFI had by then filed for bankruptcy, and EFI received its discharge after entry of the summary judgment order. 2. “Title VII” refers to “Title VII of the Civil Rights [Act] of 1964, 42 U.S.C. §§ 2000e to 2000e-17.” See Shirazi v. Childtime Learning Center, Inc., 2009 OK 13, n. 1, 204 P.3d 75, 79. Federal courts do not have exclusive jurisdiction to enforce Title VII claims. See Miner v. Mid-America Door Co., 2002 OK CIV APP 32, ¶28, 68 P.3d 212, 220 (relying on Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566 (1990)). 3. In his reply brief, Findley attached, as the only material beyond the pleadings, a copy of a “Dismissal and Notice of Rights” from the Oklahoma City office of the U.S. Equal Employment Opportunity Commission (EEOC) to demonstrate to the trial court Plaintiff’s counsel’s “misstatement” in her response brief that a no right to sue letter had been issued. We do not treat Findley’s motion to dismiss as a motion for summary judgment because he made no argument for dismissal based on that notice. 4. We say “apparently” because the minute order was not included in the appellate record. However, each party admitted the trial court filed a minute order in favor of Findley. See Plaintiff’s Amended Motion to Settle the Journal Entry and Findley’s Response to that motion. 5. Plaintiff, although acknowledging the trial court’s dismissal of “her claim of individual liability for Burk actions,” reasserted “such claim in this amended pleading solely for the purpose of preserving the issue for appeal.” 6. On December 8, 2009, this Court issued an order directing Plaintiff to show cause why this appeal should not be dismissed as premature because PeopLease’s motion for summary judgment addressed

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only issues concerning its lack of liability as an employer under Title VII. Plaintiff timely responded asserting “the Order on Summary Judgment did have the effect of disposing of all remaining claims as to all remaining defendants. 7. See Burk v. K-Mart, 1989 OK 22, 770 P.2d 24. 8. “Employer” means “a person who has fifteen or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year, or a person who as a contractor or subcontractor is furnishing the material or performing work for the state or a governmental entity or agency of the state and includes an agent of such a person but does not include an Indian tribe or a bona fide membership club not organized for profit.” 9. Section 1201(5)’s definition of “person” also includes an “association, corporation, joint apprenticeship committee, joint stock company, labor union, legal representative, mutual company, partnership, receiver, trust, trustee, trustee in bankruptcy, unincorporated organization, any other legal or commercial entity, the state, or any governmental entity or agency.” 10. Plaintiff relies on Truax v. Raich, 239 U.S. 33, 38 (1915)(“the unjustified interference of third persons is actionable although the employment is at will”), Haddle v. Garrison, 525 U.S. 121, 126-127 (1998)(“third party interference with at-will employment has long been a compensable injury under tort law”), and Worrell v. Henry, 219 F.3d 1197, 1214, n.4 (10th Cir. 2000)(“an at-will employee who has no wrongful termination against his employer may still be able to assert an intentional interference claim against a third party”). 11. The Ellison Court used both “interference with economic relations” and “interference with prospective business relations” to describe the defendant’s counterclaim, but applied the elements of “malicious interference with business or contract relations”. Id., ¶13, 751 P.2d at 1106. 12. Contrary to Plaintiff’s argument, the exact timing of the alleged interference is not specified in Martin. Nor are the precise terms and conditions of the non-tenured teacher’s contract explained. 13. These “property interests” are actually covered by R.S. Torts § 871, which provides, “[o]ne who intentionally deprives another of his legally protected property interest or causes injury to the interest is subject to liability to the other if his conduct is generally culpable and not justifiable under the circumstances.” 14. Under Title VII, “employer” is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar week in the current or preceding calendar year, and any agent of such a person . . .” 42 U.S.C. § 2000e-(b). 15. Bristol involved a claim under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12102-12213, filed by a confinement officer against the county board of commissioners and the county sheriff who alleged both defendants were his employers for ADA purposes. In its analysis, the court applied the ADA’s definition of “employer,” noting it has the same definition in Title VII. Id., 312 F.3d at 1217. 16. PeopLease’s Welcome Letter lists the benefits leased employees are provided — health, dental and life insurance, 401(K) retirement, insurance premium savings plan and supplemental benefits. 17. Title VII defines the term “employment agency” as “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person,” 42 U.S.C. § 2000e-(c), and prohibits as unlawful employment practice when an employment agency fails to refer or refers for employment any individual on the basis of his race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(b). Plaintiff does not allege any discrimination in PeopLease’s referral process. However, employment agencies may be liable under Title VII’s general discrimination statute, 42 U. S.C.§ 2000e-2(a)(1) if they are in fact an employer, which issue this appeal raises. See Williams v. Grimes Aerospace Co., 988 F.Supp. 925 (D.S.C.,1997). 18. If no tangible employment action is taken, an employer may raise an affirmative defense to liability consisting of two elements: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Burlington, 118 S.Ct. at 2270. 19. Appendix A to 29 C.F.R. § 1604.11, explains the EEOC “rescinded § 1604.11(c) of the Guidelines on Sexual Harassment, which set forth the standard of employer liability for harassment by supervisors. That section is no longer valid, in light of the Supreme Court decisions in [Burlington] and [Faragher]. The Commission has issued a policy document that examines [both decisions] and provides detailed guidance on the issue of vicarious liability by supervisors. EEOC Enforcement Guidance:

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Vicarious Employer Liability for Unlawful Harassment by Supervisors (6/18/99), EEOC Compliance Manual.” 20. Mack v. Otis Elevator Co., 326 F.3d 116, 126-127 (2nd Cir. 2003)(relied on EEOC’s expanded definition as to whether one qualifies as a supervisor), Lumhoo v. Home Depot United States, 229 F.Supp.2d 121, 156 (E.D.N.Y. 2002)(relied on Faragher for its expanded definition of supervisor), Dinkins v. Charoen Pokphand USA, Inc., 133 F.Supp.2d 1254, 1266 (M.D.Ala.2001) (relied on EEOC guideline and general agency principles). 21. Section III(A)(2) of the “EEOC Policy Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors,” dated June 18, 1999, provides, in relevant part: An individual who is authorized to direct another employee’s dayto-day work activities qualifies as his or her supervisor even if that individual does not have the authority to undertake or recommend tangible job decisions. Such an individual’s ability to commit harassment is enhanced by his or her authority to increase the employee’s workload or assign undesirable tasks, and hence it is appropriate to consider such a person a ‘supervisor’ when determining whether the employer is vicariously liable. 22. Section III(B) of the “EEOC Policy Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors,” dated June 18, 1999, provide, in relevant part: In some circumstances, an employer may be subject to vicarious liability for harassment by a supervisor who does not have actual authority over the employee. Such a result is appropriate if the employee reasonably believed that the harasser had such power. The employee might have such a belief because, for example, the chains of command are unclear. Alternatively, the employee might reasonably believe that a harasser with broad delegated powers has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the chain of command. 23. In relevant part, the Handbook’s anti-harassment policy explained (1) employees who believe they have been treated in an improper and offensive manner should let the offending party know immediately to stop it, and (2) if the behavior continues, they should report it immediately to their supervisor and PeopLease’s Human Resources Manager (H.R. M). The policy further provided, in bold, uppercase type, a toll free telephone number for the H.R.M. and an address for written complaints.

Oklahoma County Commissioner Second Deputy Position Oklahoma County District 3 Commissioner Ray Vaughn has an immediate opening for a Deputy County Commissioner. Responsibilities include assisting with public policy and administrative matters. This position offers a competitive salary and comprehensive benefits. Qualifications: Juris Doctorate (J.D.); or equivalent combination of education and experience; demonstrated management experience & proficiency in Microsoft Office. For consideration, complete and submit an Oklahoma County Application with resume. Apply online at www.oklahomacounty.org, or download and mail to: HR Director, 320 Robert S. Kerr, Suite 222, Oklahoma City, OK 73102. Applications accepted through October 1, 2010. Oklahoma County is an Equal Opportunity Employer

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office:

Justice of the Supreme Court District Eight This vacancy will be created by the retirement of the Honorable Rudolph Hargrave, effective December 31, 2010. [To be appointed to the office of Justice of the Supreme Court, an individual must have been a qualified elector of the applicable Supreme Court Judicial District, as opposed to a registered voter, for one year immediately prior to his or her appointment, and additionally, must have been a licensed attorney, practicing law within the State of Oklahoma, or serving as a judge of a court of record in Oklahoma, or both, for five years preceding his/her appointment.] Application forms can be obtained online at www.oscn.net under the link to Judicial Nominating Commission or by contacting Tammy Reaves at (405) 521-2450. Applications must be submitted to the Chairman of the Commission at the address below no later than 5:00 p.m., Friday, October 1, 2010. If applications are mailed, they must be postmarked by midnight, October 1, 2010. Mark D. Antinoro, Chairman Oklahoma Judicial Nominating Commission Administrative Office of the Courts 1915 North Stiles, Suite 305 Oklahoma City, Oklahoma 73105

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS SUMMARY OPINION Tuesday, August 17, 2010 F-2009-305 — Karl Steven Parrott, Appellant, entered a plea of guilty to Possession of a Controlled Dangerous Substance (Methamphetamine) in Oklahoma County District Court Case No. CF-2006-1874. The District Court deferred imposition of Holman’s Judgment and Sentence for four years. The sentence was subsequently accelerated by the Honorable Ray C. Elliott, District Judge. From this order of acceleration, Appellant has perfected his appeal. The District Court’s order accelerating Appellant’s deferred sentence is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., concurs; A. Johnson, V.P.J., concurs; Lumpkin, J., concurs. C-2009-887 — Petitioner, Robert K. Adams, entered a guilty plea to sexual abuse of a minor child, a violation of 10 O.S.Supp.2006, § 7115(E), in the District Court of Tulsa County, Case No. CF-2009-1281. The Honorable Dana L. Kuehn, Associate District Judge, accepted the plea and sentenced Petitioner to twenty (20) years imprisonment and a $500.00 fine, with all but the first twelve (12) years imprisonment suspended. Petitioner timely moved to withdraw his plea. Following an evidentiary hearing, the district court denied the motion to withdraw. From this judgment, Robert K. Adams has perfected his appeal. The Petition for the Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur. C-2009-1204 — Petitioner, Joshua Leo Dennis, entered a blind plea of nolo contendere to lewd or indecent proposal to a child, a violation of 21 O.S.Supp.2008, § 1123, in the District Court of Stephens County, Case No. CF-200975. The Honorable Joe H. Enos, District Judge, accepted the plea and sentenced Petitioner to twenty-five (25) years imprisonment, with all but fifteen (15) years suspended, and a fine of $1,500.00. Petitioner timely moved to withdraw his plea. Following an evidentiary hearing, the district court denied the motion to withdraw. From this judgment, Joshua Leo Vol. 81 — No. 24 — 9/11/2010

Dennis has perfected his appeal. The Petition for the Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court of Stephens County is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur. C-2009-1199 — Petitioner, Dustin Larae Gieser, entered a nolo contendere plea to aggravated assault and battery, a violation of 21 O.S.Supp.2002, § 647, in the District Court of Custer County, Case No. CF-2008-407. The Honorable Charles L. Goodwin, District Judge, accepted the plea and sentenced Petitioner to five (5) years imprisonment and restitution. Petitioner timely moved to withdraw his plea. Following an evidentiary hearing, the district court denied the motion to withdraw. From this judgment, Dustin Larae Gieser has perfected his appeal. The Petition for the Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court of Custer County is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur. Monday, August 23, 2010 F-2009-496 — Kerry Rex Chavez, Appellant, was convicted of, count one, conspiracy to manufacture controlled dangerous substance (methamphetamine) in violation of 63 O.S.2001, § 2-408, and 63 O.S.Supp.2005, § 2-401(G), and count two, possession of material with intent to manufacture a controlled dangerous substance in violation of 63 O.S.Supp.2005, § 2-401(G), both after former conviction of a drug felony, in the District Court of Beckham County, case number CF-2008-284, before the Honorable F. Pat Versteeg, Associate District Judge. The jury set punishment at fourteen (14) years imprisonment and a $100,000 fine on each count. Judge Versteeg sentenced Chavez accordingly and ordered that the sentences be served concurrently. The trial court sentenced accordingly. From this judgment and sentence, Kerry Rex Chavez has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concur; Lumpkin, J., Concurs. F-2009-113 — Kenneth Lee Johnston, Appellant, was tried by jury and convicted of, counts

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one and two, forcible anal sodomy, in violation of 21 O.S.2001, §§ 886 and 888, count three, first degree rape, in violation of 21 O.S.2001, § 1111 and 1114, count four, forcible oral sodomy in violation of 21 O.S.2001, § 886 and 888, and, count five, indecent or lewd acts with a child under sixteen in violation of 21 O.S.2001, § 1123, in Oklahoma County District Court Case Number CF-2004-205, before the Honorable Virgil C. Black, District Judge. The jury set punishment at twenty (20) years imprisonment on counts one, two, four and five and five-hundred (500) years imprisonment on count three. The trial court sentenced Johnston in accordingly. From this judgment and sentence, Kenneth Lee Johnston has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. Tuesday, August 24, 2010 F-2008-433 — Vicki Leigh Chiles, Appellant, was tried by jury for the crime of First Degree Child Abuse Murder in Case No. CF-2007-2840 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment imprisonment for life without the possibility of parole. The trial court sentenced accordingly. From this judgment and sentence Vicki Leigh Chiles has perfected her appeal. The Judgment of District Court is AFFIRMED. The matter is REMANDED to the District Court with instructions to MODIFY Appellant’s sentence to life imprisonment with all but the first thirty years suspended and set the conditions of probation. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Lewis, J., Concur in Results. Thursday, August 26, 2010 C-2009-665 — Donald Edward Sutton v. State of Oklahoma. Petitioner, Donald Edward Sutton, Jr., entered a blind plea of guilty to the offense of possession of child pornography in violation of 21 O.S.2001, §1021.2, in Washington County District Court case number CF2008-414, before the Honorable Curtis L. DeLapp, District Judge. Judge DeLapp accepted the plea, ordered a presentence report, and, on June 17, 2009, sentenced Sutton to twenty years with all suspended except for the first eight (8) years. Sutton, through counsel, filed a motion to withdraw plea indicating grounds for the motion generally that the plea was not knowing and voluntary. A hearing on the motion was held on July 15, 2009. At the conclusion of the hearing, the trial court denied Sutton’s motion. From this judgment and sen2042

tence, Mr. Sutton has perfected his appeal. Sutton’s Petition for Writ of Certiorari is GRANTED, the Judgment and Sentence of the district court is hereby VACATED, and the case is REMANDED for further proceedings consistent with this opinion. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. F-2009-474 — Michael DeWayne Bowker v. State of Oklahoma. Michael Dewayne Bowker was charged by information in the District Court of Oklahoma County, Case No. CF-20087704 with Count I, Assault and Battery with a Dangerous Weapon in violation of 21 O.S.Supp.2006, §645, after the former conviction of three (3) felonies; and Count II, Petit Larceny in violation of 21 O.S.2001 §1704 after one previous conviction of Petit Larceny. A jury trial was held before the Honorable Ray C. Elliot, District Judge and Appellant was convicted on both counts. Punishment was set at twenty (20) years imprisonment on Count I and five (5) years on Count II. The court ordered the sentences to run consecutively. The trial court sentenced accordingly. From the judgment and sentence, Michael Dewayne Bowker has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs in Part/Dissents in Part. F-2009-361 — DeMarrio Imannuel Oates v. State of Oklahoma. Demarrio Imannuel Oates, Appellant, was tried by jury and found guilty in the District Court of Tulsa County, Case No. CF-2008-1358, of Count 1, trafficking in illegal drugs, after former conviction of two (2) or more felonies, in violation of 63 O.S.Supp.2008, § 2-415; Count 2, failure to obtain a drug tax stamp, after former conviction of two (2) or more felonies, in violation of 68 O.S.2001, § 450.3; Count 3, possession of a controlled dangerous substance, in violation of 63 O.S.Supp.2007, § 2-402(B)(2); and Count 4, unlawful possession of paraphernalia, a misdemeanor, in violation of 63 O.S.Supp.2004, § 2405(C). The jury sentenced Appellant to life without parole and a $25,000.00 fine on Count 1; four (4) years imprisonment on Count 2; eight (8) years imprisonment and a $8,000.00 fine on Count 3; and one (1) year in jail and a $1000.00 fine on Count 4. The Honorable William C. Kellough, District Judge, pronounced judgment and sentence in accordance with the jury’s verdict, ordering the sentences served concurrently. The trial court sentenced accordingly. From this judgment and sentence, Demar-

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rio Imannuel Oates has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs in Results. RE-2009-0920 — Joel Ernest Brown v. The State of Oklahoma. On March 8, 2007, Appellant, Joel Ernest Brown, pled nolo contendere to Count 1 — Possession of CDS (Marijuana), second offense, and Count 4 — Driving Under Suspension. Appellant was sentenced to seven years with all except the first six months suspended on Count 1. He was fined $200.00 on Count 4. The State filed a motion to revoke Appellant’s suspended sentence June 17, 2009. Following a revocation hearing October 8, 2009, the Honorable James R. Wolfe, Associate District Judge, revoked three years of Appellant’s suspended sentence. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lewis, J., Concur. RE-2009-384 — David Wayne Berryhill v. State of Oklahoma. On May 31, 2005, in the District Court of Ottawa County, DAVID WAYNE BERRYHILL, Appellant, entered a plea of guilty in Case No. CF-2004-410B to Burglary in the Second Degree and was sentenced to seven (7) years imprisonment. On that same date, in Case No. CF-2004-414, Appellant entered pleas of guilty to Robbery with a Dangerous Weapon (Count I), Assault and Battery with a Dangerous Weapon (Count II), Feloniously Pointing Firearm (Count III), and Intimidation of a Witness (Count IV); and was sentenced to terms of ten (10) years imprisonment on each of those counts. Pursuant to a plea agreement, the Honorable Robert G. Haney, District Judge, ordered each of Appellant’s sentences to be served concurrently and suspended execution of all but the first five (5) years of each sentence except for that sentence on Count I in CF-2004-414, which he suspended in its entirety. The District Court’s suspension orders were each conditioned on written rules of probation. On April 23, 2009, Judge Haney found Appellant had violated his probation and revoked in full each of the suspension orders except for that suspension order over the term on Count I, which Judge Haney executed in a manner requiring Appellant to have a “maximum time of 6 years to serve in the Department of Corrections.” Appellant appeals the final orders revoking his suspended sentences. AFFIRMED. Opinion by: C. Johnson, P.J.; Vol. 81 — No. 24 — 9/11/2010

A. Johnson, V.P.J, Concurs; Lumpkin, J., Concurs in Results; Lewis, J., Concurs. RE-2009-0917 — Jannifer Leeann Leija v. The State of Oklahoma. Appellant, Jannifer Leeann Leija, pled nolo contendere August 7, 2007, in the District Court of Bryan County, Case No. CF-2003-353, to Count 1 — Forgery in the Second Degree and Count 2 — Uttering Forged Instrument. She was sentenced to five years suspended on each count, with rules and conditions of probation. The sentences were ordered to run concurrently. She was also fined $250.00 on each count and assessed costs and fees. The State filed a motion to revoke Appellant’s suspended sentence on November 7, 2007. A revocation hearing was held May 18, 2009. Appellant stipulated to the State’s allegations. Following a sentencing hearing October 8, 2009, the Honorable Mark R. Campbell, District Judge, revoked one year on each count. Appellant appeals from the revocation of her suspended sentence. The revocation of Appellant’s suspended sentences is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lewis, J., Concur. F-2009-419 — Rodney Dean Clark v. The State of Oklahoma. Appellant, Rodney Dean Clark, represented by counsel, entered a guilty plea in Lincoln County District Court Case No. CF2006-142 to Driving Under the Influence, Count I, and Driving Under Suspension, Count II. Pursuant to a plea agreement, execution of Clark’s sentence was delayed for ten years conditioned upon his successful completion of the Lincoln County Drug Court Program. Clark was subsequently terminated from drug court by the Honorable Paul M. Vassar, District Judge. Clark was sentenced to ten years incarceration. From the order of termination, Clark has perfected his appeal. The District Court’s order terminating Clark from the Lincoln County Drug Court Program and imposing sentence in CF-2006-142 is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur in Results; Lewis, J., Concur. Friday, August 27, 2010 F-2009-743 — Keary Lamar Littlejohn, Appellant, was tried by jury for the crimes of First Degree Felony Murder (Count I) and Conspiracy to Commit Robbery with Firearms (Count II), in Case No. CF-2002-2384 in the District Court of Oklahoma County. The jury returned a verdict of guilty on both counts, and recommended a sentence of ten years imprisonment

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and a $5,000 fine on the conspiracy charge. As to the murder charge, the jury found the existence of all three alleged aggravating circumstances and recommended a sentence of death. The trial court sentenced Appellant accordingly and Appellant appealed. This Court affirmed Appellant’s conviction and sentence on the conspiracy charge and his first degree murder conviction but vacated his death sentence and remanded the case back to the trial court for a new sentencing proceeding. At the resentencing trial the trial judge found the existence of only one of the alleged aggravating circumstance and sentenced Appellant to life in prison without the possibility of parole. From this judgment and sentence Keary Lamar Littlejohn has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Lewis, J., Concurs. Monday, August 30, 2010 RE-2009-783 — Joshua Lee Bressler vs. The State of Oklahoma. Joshua Lee Bressler, Appellant, appeals from the revocation of four years of his suspended sentences in Case No. CF1998-100 in the District Court of Pawnee County. On August 6, 1998, Appellant entered a plea of guilty to Count 1, Second Degree Rape, and Count 6, Forcible Sodomy. He was convicted and sentenced to a term of ten years on each count to run concurrently, with all but the first year suspended. On August 24, 2009, the District Court found Appellant had violated rules and conditions of his probation and revoked four years of his suspended sentences. The revocation of four years of Appellant’s suspended sentences in Case No. CF-1998-100 in the District Court of Pawnee County is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs in results. F-2009-96 — Cortez Lamont Franklin v. The State of Oklahoma. CORTEZ LAMONT FRANKLIN, Appellant, was tried by jury for the crime of First Degree Murder in Case No. CF-20045898 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment life imprisonment without the possibility of parole. The trial court sentenced accordingly. From this judgment and sentence Cortez Lamont Franklin has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Lewis, J., Concurs. 2044

Tuesday, August 31, 2010 F-2010-176 — Jayson Robert Turner v. The State of Oklahoma. Jayson Robert Turner, Appellant, was tried by jury for the crime of Burglary of an Automobile, After Conviction of Two or More Felonies, in Case No. CF-2008-3787 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment eight years imprisonment, and a $2,500 fine. The trial court sentenced accordingly. From this judgment and sentence Jayson Robert Turner has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Lewis, J., Concurs. C-2010-32 — George William Didlott v. The State of Oklahoma. George William Didlott, Petitioner, entered negotiated pleas of guilty to the following crimes in Tulsa County District Court, Case No. CF-2009-4796: Count 1, Endeavoring to Manufacture Methamphetamine; Count 2, Possession of a Controlled Drug; Count 3, First Degree Arson; and Count 4, Possession of Drug Paraphernalia. The Honorable Clancy Smith, District Judge, sentenced Petitioner pursuant to the agreement as follows: twenty-five years in prison and a $500 fine for Count 1; six years in prison and a $500 fine for Count 2; fifteen years and a $500 fine for Count 3; and one year in the county jail and a $250 fine for Count 4. The sentences were ordered to be served concurrently. Petitioner filed a Motion to Withdraw Pleas Agreement, and conflict counsel was appointed. The district court denied the motion and this appeal followed. The Petition for Writ of Certiorari is DENIED, and the Judgment and Sentence of the district court is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Lewis, J., Concurs. Wednesday, September 1, 2010 F-2009-295 — Appellant was charged by Information of Count 1 assault and battery with a dangerous weapon in violation of 21 O.S.2001, §645, Count 2 assault and battery by means likely to produce death in violation of 21 O.S.2001, § 652, and Count 3 rape in the first degree in violation of 21 O.S.2001, §§ 1111, 1114, in the District Court of Oklahoma County, Case No. CF-2006-4839. The jury found Appellant guilty of the lesser included offense of domestic abuse – assault and battery, and assault and battery by means or force likely to produce death. Appellant was acquitted of rape in the first degree. The jury sentenced Appellant to one (1) year and a three thousand dollar ($3,000.00) fine

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for domestic abuse and twenty-five (25) years on Count 2. The Honorable Virgil Black, District Judge, imposed judgment and sentence accordingly. Judge Black ordered the sentences to run consecutively. From this judgment and sentence, Appellant has perfected his appeal to this Court. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. F-2009-791 — Paul Cameron Hammons vs. The State of Oklahoma. Paul Cameron Hammons, Appellant, appeals from the acceleration of his deferred judgment and sentencing in Case No. CF-2007-31 in the District Court of Garfield County, entered by the Honorable Dennis W. Hladik, District Judge. On April 22, 2008, Appellant entered a plea of guilty to Distribution of Controlled Substance, and judgment and sentencing was deferred under conditions of probation until April 22, 2013, a period of five years. The State filed the current application to accelerate sentence alleging Appellant violated probation by (1) failing to keep his probation officer informed of his whereabouts; (2) failing to truthfully answer all inquiries from his probation officer; (3) habitually associating and living with convicted felon, Michael Hicks; and (4) willfully failing to pay probation fees and being in arrears in the amount of $400.00. On September 3, 2009, the acceleration hearing was conducted. Judge Hladik found Appellant violated probation as alleged, and convicted and sentenced him to seven years imprisonment. The acceleration of Appellant’s deferred judgment and sentencing in Case No. CF-2007-31 in the District Court of Garfield County is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. RE-2009-632 — Larry Dean Tom, Appellant, entered a plea of nolo contendere to Assault and Battery with a Dangerous Weapon, in Bryan County District Court Case No. CF2007-791. Tom was sentenced to five years incarceration all suspended. Tom’s suspended sentence was subsequently revoked in full by the Honorable Mark A. Campbell, District Judge. From this order of revocation, Tom has perfected his appeal. The District Court’s order revoking Tom’s suspended sentences in full is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. RE-2009-303 — Natraun Decole Glover, Appellant, entered a plea of guilty to Robbery Vol. 81 — No. 24 — 9/11/2010

in the First Degree, Count I, Burglary in the First Degree, Count II, and concealing Stolen Property, Count III, in Oklahoma County District Court Case No. CF-1997-4210. Glover was sentenced to ten years incarceration on Counts I and II, and five years incarceration on Count III. The sentences were all suspended and ordered to run concurrently. Glover’s suspended sentences in Counts I and II were subsequently revoked in full by the Honorable Ray C. Elliott, District Judge. From this order of revocation, Glover has perfected his appeal. The District Court’s order revoking Glover’s suspended sentences in full is AFFIRMED. Opinion by: Lewis, .J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs in Results; Lumpkin, J., Concurs. F-2009-481 — Appellant, Matthew James Nunn, was tried by jury and convicted of Kidnapping (Count I); First Degree Rape (Count II); and Forcible Sodomy (Count IV) in the District Court of Okfuskee County, Case Number CF-2008-119. The jury recommended as punishment ten years imprisonment in Count I; imprisonment for life without the possibility of parole in Count II; and twenty years imprisonment in Count IV. The trial court sentenced accordingly; ordering the sentences in Count I and II to run concurrently but consecutive to Count IV. It is from this judgment and sentence that Appellant appeals. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur in result. Tuesday, September 7, 2010 PCD-2008-211 — Clarence Rozell Goode, Jr., was charged, conjointly with Ronald Dwayne Thompson and Kenneth Dominick Johnson, with three counts of first degree murder, with alternative theories of malice or felony murder, in violation of 21 O.S.Supp.2004, §701.7(A) and (B), and one count of first degree burglary, in violation of 21 O.S.2001, §1431, in Tulsa County District Court case number CF-2005-3904. The State filed a Bill of Particulars alleging two aggravating circumstances for each of the three murder offenses: (1) the defendant knowingly created a great risk of death to more than one person; and (2) there exists a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society for each of the three murder offenses. 21 O.S.2001, §701.12 (2) and (7). Goode’s case was severed from his codefendants, and his trial commenced on December 3,

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2007, before the Honorable Tom C. Gillert, District Judge. The jury found Goode guilty on all four counts and assessed punishment at death on each of the three first degree murder convictions, after finding that both of the aggravating circumstances existed in each murder. The jury assessed twenty (20) years imprisonment and a $10,000 fine on the first degree burglary count. Judge Gillert formally sentenced Goode in accordance with the jury verdict on January 7, 2008. Thereafter, Goode filed a direct appeal of his convictions and sentences, which were affirmed by this Court in Goode v. State, 2010 OK CR 10, ___ P.3d ___, 2010 WL 2698281. Goode is now before this Court with his original application for post-conviction relief. After reviewing Goode’s application for post-conviction relief, we conclude that he is not entitled to relief. Accordingly, Goode’s Original Application for Post-Conviction Relief is DENIED, and the application for an evidentiary hearing is also DENIED. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. S-2010-178 — Mansel Eldon Ritter was charged with nine (9) counts of lewd acts with a child under sixteen in violation of 21 O.S.2001, §1123, in the District Court of Oklahoma County, case number CF-2008-5785. A preliminary hearing was held and Ritter was bound over to the District Court. Ritter filed a motion to suppress his confession and the motion was heard before the Honorable Jerry D. Bass, District Judge. Judge Bass ordered that the confession be suppressed, and the State announced its intention to appeal. The State appeals claiming that the trial court erred in its motion to suppress. The district court’s decision sustaining the motion to suppress is REVERSED, and this case is REMANDED for further proceedings. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. F-2009-278 — Tammy Lynette Payne was charged by Information in the District Court of Kay County, Case No. CF-2007-587 for Counts I and II, assault and battery with a dangerous weapon in violation of 21 O.S.Supp.2006, §645 and Count III, assault and battery, domestic abuse, a misdemeanor, in violation of 21 O.S.Supp.2006, §644(C). She was also charged in Case No. CF-2007-732 for possession of precursor with intent to manufacture in violation of 63 O.S.Supp.2005, §2-401(G)(1). The cases were consolidated and a jury trial was held before the Honorable Leslie D. Page, Associate District Judge. Appellant was found not guilty 2046

on the two counts of assault and battery with a dangerous weapon. She was convicted for assault and battery, domestic abuse and possession of precursor with intent to manufacture. Payne was assessed a $1,000.00 fine and costs and a $100.00 victim’s compensation for the domestic abuse. Punishment was set at seven (7) years imprisonment for the charge of possession of precursor with intent to manufacture. The trial court sentenced accordingly. From this judgment and sentence, Tammy Lynette Payne has perfected her appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. ACCELERATED DOCKET Thursday, August 26, 2010 J-2010-214 — L.P. v. The State of Oklahoma. L.P., Appellant, is charged with Assault And Battery with a Deadly Weapon, in Oklahoma County District Court Case No. CF-2009-5143. The Honorable Carlos Chappelle, District Judge, granted the State’s motion for imposition of adult sentencing. From that order, L.P. has perfected his appeal. The District Court’s order is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, .P.J., Concur; A. Johnson, J., Concur; Lumpkin, J., Not participating. COURT OF CIVIL APPEALS (Division No. 1) Wednesday, August 25, 2010 106,853 — Super Wheels & Deals, Inc., Plaintiff, vs. United Auto Sales, Inc., d/b/a Tulsa United Motor Sales II, Defendant/Third-Party Plaintiff/Appellee, vs. Ken Snitz d/b/a Super Wheels & Deals, Third-Party Defendant/ Appellant, and, Brandon Shaw, and Old Republic Surety Company, Third-Party Defendants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Jefferson Sellers, Trial Judge. In this action involving the purchase of used vehicles, Appellant Ken Snitz, d/b/a Super Wheels & Deals (Snitz), appeals from the trial court’s judgment in favor of Appellee, United Auto Sales, Inc., d/b/a Tulsa United Motor Sales II (United). Snitz concedes that the checks in controversy were given by Snitz from his personal account, thus creating an individual liability separate from the obligation created by the sales agreements. As a result, the $69,520 judgment against Snitz is affirmed. We reach a different conclusion with respect to the judgment based on fraud. In order to recover on a fraud theory, the proponent must establish, among other things, a material false repre-

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sentation made by the other party. There is nothing in the evidentiary materials to establish Snitz’s knowledge the checks would be dishonored when presented. Thus, there remain disputed facts regarding the fraud cause of action. Judgment on the dishonored checks is affirmed. Judgment on the fraud claim is reversed and remanded for further proceedings. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Buettner, P.J.; Hansen, J., concurs in part, dissents in part with opinion, and Hetherington, J., concurs. (Division No. 2) Monday, August 23, 2010 106,951 — Nudeal Enterprises, LLC, Plaintiff/Appellee, v. Bridgeport Development Group, LLC, Jim Meyer, and Mark Livingston, Defendants/Appellants. Appeal from an order of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge, granting judgment on a jury verdict in favor of Plaintiff. We find the trial court did not commit reversible error when it refused to enter a directed verdict in favor of Defendants on Plaintiff’s fraud allegations. Viewing the evidence in the light most favorable to Plaintiff, the trial court correctly found that reasonable minds could conclude Defendants’ actions constituted fraud. We likewise find no error in the trial court’s refusal to give the jury Defendants’ three proposed jury instructions. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Barnes, J., and Gabbard, J. (sitting by designation), concur. Wednesday, August 25, 2010 107,604 — Donna epps, Representative of the Estate of Editha Hildebrand, Deceased, Plaintiff/Appellant, v. TC/MAP 1997-B and donald Duncan, Defendants/Appellees, and J.D. Brinkley, Greg Brinkley, Texas Firms, Inc., Map Resources, Inc., and Robert Nordhouse, Trustee for First American Bank, S.S.B., Defendants. Appeal from the district Court of Beckham County, Hon. Charles L. goodwin, Trial Judge. Appeal from the trial court’s granting of summary judgment in favor of TC/MAP 1997-B and Donald Duncan. The plaintiff (Hildebrand) sought a judgment quieting title, rescinding conveyances, awarding damages for faud, as well as damages for proceeds of natural gas production. The appellees counterclaimed for a judgment quieting title. The undisputed material facts (largely, Hildebrand’s own admissions) support the trial court’s finding, as a matter of law, that the appellees were bona fide Vol. 81 — No. 24 — 9/11/2010

purchasers for value and that Hildebrand was not defrauded by the appellees. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and fischer, P.J., concur. Thursday, August 26, 2010 107,268 — Timothy Frink, Petitioner/Appellee, v. Deanna Frink, Respondent/Appellant. Appeal from orders of the District Court of Muskogee County, Hon. Norman Thygesen, Trial Judge, denying Wife’s (1) motion to vacate the divorce decree, (2) motion to compel answers to interrogatories and responses to requests for production of documents from Husband, and (3) request to offer expert testimony regarding the value of Husband’s ophthalmological practice. Wife asserts on appeal she agreed to the decree because she was fraudulently induced to do so by Husband. We, however, find no error in the trial court’s conclusion that Wife’s evidence at the motion to vacate hearing was not persuasive in showing that her free will and power to refuse were destroyed or overcome by Husband’s conduct. Nor do we find error in its conclusion that Wife did not meet her burden to prove fraud, coercion, or duress. We further find that the division of marital property was not facially unfair or so disproportionate as to require its vacation. We likewise find the trial court did not err in its denial of Wife’s request for post-decree discovery or in excluding expert witness testimony. We affirm the decisions of the trial court. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. 107,060 — Don W. Tucker, and Trapp Petroleum Partners, Plaintiffs/Appellants, v. WFD Oil Corp., Defendant/Appellee, and Alpine, Inc.; ATS Energy, LLC; Dr. J.C. Bundren; Calebs Resources, LLC; Flacon Oil Properties; Rachal Resources; S.L. West; Gaede Ventures, LLC; Axiom, Inc.; Howard Shaw; Colloil, Inc.; Cimarron Production Company, Inc.; Johnathan Bundren; Larry Rodgers; Jasu Properties, LLC; Dixie Brown; Triangle Royalty Corporation; Tom Hess; Ronald L. Palmer; Harold and Evelyn Brizzolara, Defendants. Appeal from an order of the District Court of Hughes County, Hon. B. Gordon Allen, Trial Judge, denying Plaintiffs’ quiet title claim. This is an appeal from an order entered by the trial court in a separate proceeding filed by Plaintiffs to accomplish what the Oklahoma Corporation Commission (OCC) refused to do in a case

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before it; vacate a pooling order. After the OCC issued a pooling order, Tucker filed with the OCC an application to vacate the pooling order as to certain mineral owners. That application was denied. Tucker did not appeal that order. Plaintiffs filed the present action seeking to quiet title in the leasehold and mineral interest. We find the trial court correctly concluded Plaintiffs’ quiet title action constituted an improper collateral attack on the OCC Pooling Order. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Monday, August 30, 2010 107,312 — In Re the Marriage of: Teresa Lynn Machalica, Petitioner/Appellant, v. David Machalica, Respondent/Appellee. Appeal from an order of the District Court of Adair County, Hon. L. Elizabeth Brown, Trial Judge, denying Wife’s motion to vacate the divorce decree. Wife asserts on appeal that the parties’ mediated settlement agreement pertaining to property and debt division should have been set aside as having been procured by fraud, coercion, and duress and as being so disproportionate that the agreement amounts to fraud. The trial court approved the agreement between the parties and incorporated its terms into the divorce decree. In the absence of fraud, coercion, or duress, the parties are free to divide their property by agreement, even if the division is disproportionate. We find no abuse of discretion in the trial court’s conclusion that Wife failed to show fraud, coercion or duress as a basis to vacate the divorce decree. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J.; and Barnes, J., concur. Tuesday, August 31, 2010 107,757 — Charles Wayne Millican, Petitioner, v. Happy Days Diner, Standard Fire Insurance, and The Workers’ Compensation Court, Respondents. Proceeding to review an order of the Workers’ Compensation Court, Hon. Cherri Farrar, Trial Judge, denying Claimant’s claim for temporary total disability benefits and medical treatment. Claimant was injured while he was painting at the Happy Days Diner. Although Claimant alleges he was an employee of the diner, Happy Days argues he was an independent contractor at the time of injury. The trial court denied his claim for compensation. After reviewing the evidence, we conclude that there was no employer-employee relationship between Claimant and Happy Days Diner. 2048

Claimant was not working as an employee when he was painting the diner but rather as an independent contractor and was not covered by the Workers’ Compensation Act. We sustain the order of the Workers’ Compensation Court. SUSTAINED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer P.J., and Barnes, J., concur. Friday, September 3, 2010 106,649 — BNSF Railway Company, Protestant/Appellant, vs. Board of County Commissioners of Tulsa County and The State of Oklahoma ex rel. The Oklahoma Corporation Commission, Applicants/Appellees. Appeal from Order of The Oklahoma Corporation Commission. BNSF Railway appeals the Commission’s order granting the Board of County Commissioner’s for Tulsa County’s (Board) application to open a railway crossing. The Commission had jurisdiction to hear the Board’s application for authorization to open a crossing at South 49th West Avenue. There is substantial, relevant evidence to support the Commission’s order approving the Board’s application. Therefore, we affirm the order of the Commission appealed by BNSF. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. 106,736 — Sand Springs Materials LLC, an Oklahoma limited liability company, Plaintiff/ Appellant, vs. The City of Sand Springs, Defendant/Appellee. Appeal from Order of the District Court of Tulsa County, Hon. Mary Fitzgerald Trial Judge, upholding the decision of the City of Sand Springs to deny SSM a specific use permit to operate a rock quarry. In its appeal to the district court of the denial of its application for a special use permit to operate a rock quarry, SSM was not entitled to present additional evidence or to a de novo trial of the City’s action. SSM has established no constitutional infirmity in the record on which the district court decided SSM’s appeal. The physical facts in this record show that the decision of the City to deny SSM’s application for a special use permit is fairly debatable. The decision of the district court affirming that denial is not against the clear weight of the evidence. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J. and Barnes, J., concur.

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(Division No. 3) Monday, August 23, 2010 105,140 — The State of Oklahoma, Plaintiff/ Appellee, vs. Alvin Johnson, Defendant, and Brian Gainey, Bondsman, Appellant. Appeal from the District Court of Wagoner County, Oklahoma. Honorable Bruce Sewell, Judge. Appellant bondsman posted a $25,000 appearance bond for Alvin Johnson in Wagoner County. Johnson failed to appear for his preliminary hearing and an Order and Judgment of Forfeiture [of the bond] was entered. Several weeks later, Johnson was arrested and jailed in Oklahoma County. Appellant began efforts to have the bond exonerated. After a hearing was held, the court denied Appellant’s Amended Motion for exoneration of the bond. Appellant appeals and contends 59 O.S. 2001 §1332(C) requires exoneration of the bond. Johnson was back in custody in Oklahoma within ninety days of Appellant bondsman receiving notice of the Order and Judgment of Forfeiture. A reasonable interpretation of §1332(C) mandates that under those circumstances, Appellant is entitled to have his bond exonerated. The order denying exoneration of bond is REVERSED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 106,306 — Billy Wayne McDonald and Billy Gene McDonald, Plaintiffs/Appellants, vs. David Welch, Audra Scearce, D.O., and Goodyear Tire & Rubber Company, Defendants/ Appellees, and Direct Staffing Solutions, Inc., Defendant. Appeal from the District Court of Comanche County, Oklahoma. Honorable C. Allen McCall, Judge. Appellants (Billy Wayne and Billy Gene) brought this personal injury action after they were injured when their work cart collided with a forklift driven by Brent Cullins in the Goodyear warehouse in Lawton. Appellants were working as independent contractors. Appellee Scearce is the sole shareholder of Direct Staffing and Appellee Welch is the Chief Executive Officer. Appellants contend Welch is actually the owner of Direct Staffing. Appellants appeal the decisions in favor of Appellees as well as the court’s application of comparative negligence to Billy Wayne’s recovery, and contend the court misapplied the law to the facts presented. Billy Wayne contends Goodyear is liable for the negligence of Cullins, arguing Cullins was an agent or employee of Goodyear. The court’s determination Cullins was not an agent or employee of Goodyear is supported by competent evidence. Billy Wayne also contends GoodVol. 81 — No. 24 — 9/11/2010

year should be liable for Cullins’ negligence on the basis that his work was inherently dangerous or was caused by a hazard that was readily observable and easily remedied. The collision between the Billy Wayne’s work cart and Cullins’ forklift operating inside the Goodyear warehouse was a low speed collision. There was testimony regarding that Goodyear mandated safety precautions for driving inside the warehouse and evidence the accident in question was the only intersection collision that had occurred in the warehouse. Competent evidence supports the court’s decision that Goodyear had no direct responsibility for the accident. There is no evidence Direct Staffing attempted to defraud anyone, or that justice requires piercing the corporate veil. We see no error in the trial court’s finding in favor of Scearce and Welch. Based on the evidence presented, the court found Billy Wayne and Cullins were distracted momentarily before the collision. The court assessed 80% fault upon Cullins and 20% fault upon Billy Wayne. Because the court’s decision is supported by competent evidence in the record, the order of the trial court is AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 106,772 — Karen Nelson, Trustee of the Revocable Inter Vivos Trust of Karen Nelson Dated May 4, 1989, Plaintiff/Appellant/CounterAppellee, vs. Linn Exploration Midcontinent, L.L.C., f/k/a Dominion Exploration Midcontinent, L.L.C., Defendant/Appellee/ CounterAppellant. Appeal from the District Court of Grady County, Oklahoma. Honorable Richard G. Van Dyck, Judge. Plaintiff and Defendant each seek review of the trial court’s post-judgment order denying attorney’s fees. We hold both Plaintiff’s claim for improper deduction of expenses and Defendant’s claim of setoff/ recoupment fall with the OPRSA, and the OPRSA, §570.14(C), clearly mandates an award of attorney’s fees to the prevailing party. Plaintiff plainly prevailed on the claim for improper deduction of expenses, the claim upon which Defendant confessed judgment. However, Defendant plainly prevailed on the setoff/ recoupment claim, both at trial and on appeal. Plaintiff and Defendant are each entitled to an award of prevailing party attorney’s fees against the other. REVERSED and REMANDED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 106,967 — In Re: The Marriage of Jennifer Gordon and John Lymberopoulous: Jennifer Gordon, Petitioner/Appellee, vs. John Lymbe-

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ropoulos, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Robert Perugino, Judge. In this modification of child custody proceeding, Respondent (Father) appeals from the trial court’s order denying his motion to modify the divorce decree by not awarding joint custody of the parties’ children and modifying the visitation schedule. The court denied Father’s request for travel expense credit. The parties were divorced in Texas. The divorce decree reflects Petitioner (Mother) was expressly allowed to relocate to Oklahoma. The only issues on appeal are visitation and reimbursement of travel expenses. Father argues the court erred in failing to find a substantial change of circumstances on the basis that his sons’ extracurricular activities interfere with his visitation and that he should be reimbursed for travel expenses. Father’s own testimony demonstrates he anticipated the children’s move to Tulsa as well as their participation in extracurricular activities as they matured. Additionally, the record indicates Father has not used the entire visitation time to which he is entitled under the decree. Father’s testimony also reveals his expenses are incurred pursuant to his choice to travel to Tulsa in lieu of having the children travel to Dallas for visitation. We find no abuse of discretion in the court’s denial of Father’s travel expenses. The order of the trial court is AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 107,015 — Linda Stewart, Plaintiff/Appellant, vs. NYT Broadcast Holdings, L.L.C., and Griffin Communications, L.L.C., Defendants/ Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Noma D. Gurich, Judge. Plaintiff seeks review of the trial court’s order denying her motion for new trial after a jury verdict for Defendants on Plaintiff’s claims for defamation and false light invasion of privacy. In this appeal, Stewart asserts the broadcasts aired by Defendants were false and unprivileged, constituted libel per se, and the trial court erred in denying her motion for a new trial. The press release and the press conference held by the Norman Police Department 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. 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 2050

were a substantially accurate account of the information they were given from the official press release and at the official press conference. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 107,151 — Alice M. Estes, Plaintiff/Appellant, vs. Kirk R. Boersma, Personal Representative of the Estate of Donaleen B. Jennings, Defendant/Appellee. Appeal from the District Court of Kay County, Oklahoma. Honorable W. Lee Stout, Judge. Plaintiff/Appellant, Alice M. Estes, brought this action against Kirk R. Boersma, Personal Representative of the Estate of Donaleen B. Jennings, deceased, for specific performance of decedent’s oral agreement to devise real estate. Plaintiff alleged decedent orally agreed to devise certain real property to Plaintiff in exchange for Plaintiff’s agreement to care for decedent for the rest of her life and so decedent would not have to go to a nursing home. Plaintiff alleged she fully performed her part of the agreement, but decedent failed to fulfill her oral agreement. In the alternative, Plaintiff sought quantum meruit. The trial court denied Plaintiff’s claims. Plaintiff appeals. We have reviewed the evidence and find the court’s determination that Plaintiff terminated the life care agreement and that she was compensated for her services is not against the clear weight of the evidence. We cannot find the trial court erred when it denied her claim for specific performance. Although Plaintiff may have been entitled to recover the reasonable value of the services for which she was not compensated, Plaintiff failed to prove the value of such services. Due to Plaintiff’s inconsistent testimony and non-contemporaneous documents, the trial court determined she lacked credibility and denied her quantum meruit claim. Under the facts of this case, we cannot say this was error. Regarding the court’s award of attorney fees to Defendant, the specific performance suit does not fall within the language of 12 O.S. 2001 §936. However, Plaintiff’s suit for quantum meruit is a suit to recover compensation for the labor and services she rendered to decedent. The court properly awarded Defendant attorney fees and costs pursuant to §§928 and 929. The order of the trial court is AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,249 — Mark Brill, Plaintiff/Appellant, vs. The Walt Disney Company; Pixar Animation Studios; Michael Wallis, Individually; and Michael Wallis, L.L.C., Defendants/Appellees. Appeal from the District Court of Oklahoma

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County, Oklahoma. Honorable Bryan C. Dixon, Judge. Appellant (Brill), a stock race car driver, seeks review of an order granting Appellees’ Motions to Dismiss for failure to state a claim. Because the motions included evidentiary materials for the court’s consideration, they will be treated as motions for summary judgment rather than motions to dismiss. Brill contends the fictional animated race car character “Lightning McQueen” in the movie Cars constitutes a misappropriation of his likeness and violates his right of publicity pursuant to common law and 12 O.S. 2001 §1449. Additionally, Brill asserts a claim for common law trademark infringement, as well as claims for unfair and deceptive trade practices pursuant to 78 O.S. Supp. 2004 §53(A), unjust enrichment, and conspiracy. The similarities in the appearance of Brill’s race car and Lightning McQueen are that they are both red race cars and have the yellow number 95 on the side. The similarities without more simply do not equate to a knowing use of Brill’s personal likeness. The car is a fictional, animated, talking car that clearly has no driver. The image of Lightning McQueen raises no inference of a driver, and thus implicates no driver’s right of publicity protected by common law or statute. The law protects people’s right of publicity (as opposed to their cars). Defendants’ use of the talking car character, Lightning McQueen, in no way constitutes an unauthorized use of Brill’s likeness for commercial purposes and thus, does not violate Brill’s statutory and/or common law right of publicity as a matter of law. The record discloses no trademark registration by Brill and Brill has failed to demonstrate common law ownership of a valid trademark. His claim that his race car is “inherently distinctive” lacks merit. Further, the record reveals no evidence in support of Brill’s contention that Defendants stole the image of Lightning McQueen from Brill. We find the evidence pertaining to the origin of Lightning McQueen leads only to the reasonable inference that the similarities of Brill’s car and Lightning McQueen are coincidental. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., concurs, and Bell, V.C.J., dissents. 107,544 — Robert Dee Burk, Petitioner, vs. Unit Drilling Co., Unit Corp. (Own Risk Insurance) and the Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Claimant seeks review of an order of a three-judge panel of the Workers’ Compensation Court affirming the trial court’s Vol. 81 — No. 24 — 9/11/2010

order and denying his claim for benefits for an alleged accidental personal injury arising out of and in the course of his employment with Respondent Employer. In this proceeding, Claimant challenges the order of the threejudge panel as unsupported by any competent evidence, and hence, erroneous as a matter of law. In the present case, Claimant introduced competent medical evidence argued to show a causal relationship between the job-related exposure to soda ash, the subsequent ear infection and development of meningitis. However, Employer introduced competent medical evidence showing no causal relationship between the job-related exposure to soda ash, the subsequent ear infection and development of meningitis, and the IME agreed with that conclusion. We find competent evidence to support denial of the claim. SUSTAINED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. Thursday, August 26, 2010 106,492 — Darryl Anderson, Appellant, vs. Oklahoma Board of Nursing, Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Noma Gurich, Judge. Appellant Anderson seeks review of the trial court’s order affirming the order of the Oklahoma Board of Nursing (Board) which suspended his nursing license and imposed other discipline. In this appeal, Anderson challenges the decision of the trial court as contrary to the evidence and applicable law because the Board did not meet its burden of proof by clear and convincing evidence, the Board’s decision was arbitrary and capricious, and the Board arbitrarily denied a personal appearance of defense witness. Board presented evidence that an unaccompanied patient under Anderson’s care was found wandering the halls of the hospital and, when returned to Anderson’s Observation Unit, he was found asleep behind a desk. The Board did not abuse its discretion to arbitrarily deny Anderson’s requested continuance. The decision of Board is neither clearly erroneous on the evidence, nor arbitrary and capricious. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 107,344 — Great Plains National Bank, a national banking association, Plaintiff, vs. Jabez Farms, L.L.C., an Oklahoma limited liability company; and Ronald Ladd and Patricia Ladd, individuals, and sometimes doing business as Ronald Ladd and Patricia Ladd Joint Venture, Defendants, and Liberty National Bank, a national banking association; Additional

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Defendant/Appellee, Stockmans Bank, an Oklahoma banking corporation; Liberty National Bank, a national banking association; Deer & Company, a Delaware corporation, and Farm Credit of Western Oklahoma, PCA, Additional Defendants, First State Bank of Altus, Intervening Defendant and Third-Party Plaintiff, vs. Barbee-Neuhaus Implement Co., ThirdParty Defendant/Appellant, and R&P Farms, Inc.; Boaz Land and Cattle, LLC; Triple 777 Farm, LLC; Martha Farm, LLC; Quality Implement Co., Ryan Robbins; Timothy Wayne McDaniel; and Western Equipment, LLC, Danny McCustin, and Larry McLaughlin, Third-Party Defendants. Appeal from the District Court of Jackson County, Oklahoma. Honorable Allen McCall, Judge. This case arises from a foreclosure action initiated by Plaintiff (Great Plains) against Defendants (Ladd). Several other banks were joined in the action. Liberty National Bank (Liberty) filed a Third-Party Petition against Barbee-Neuhaus Implement Company (Barbee), alleging conversion of a certain John Deere tractor by Barbee. Liberty claimed a security interest in the tractor purchased by Barbee from Ladd and/or Boaz Land & Cattle, L.L.C. (Boaz) and/or the proceeds resulting from its resale. Liberty filed a Motion for Summary Judgment, asserting there was no genuine issue of material fact whether Barbee had exercised wrongful dominion and control over the tractor contrary to Liberty’s rights. The trial court granted summary judgment to Liberty, finding Barbee had actual knowledge that Ladd operated as Boaz Land & Cattle based upon previous transactions with Ladd/Boaz. The court further found Liberty had filed a UCC financing statement naming Liberty as secured party, Boaz as debtor, and specifically identified the tractor as collateral. Additionally, the court found that the failure of Barbee to check UCC records under the debtor name of Boaz was negligent, and that Barbee failed to make Liberty a joint payee on the check issued for the purchase of the farm equipment at issue. In its entry of judgment against Barbee, the court ultimately concluded there was no genuine issue of material fact that Barbee wrongfully exerted dominion and control over the tractor proceeds inconsistent with Liberty’s rights and that Liberty was entitled to judgment as a matter of law against Barbee for conversion of property. Barbee appeals from the judgment entered in Liberty’s favor. Barbee primarily seeks to challenge the established fact of its purchase of the farm 2052

equipment from Boaz, which was previously admitted upon its failure to respond to Liberty’s Requests for Admissions. Barbee contends its status as an innocent purchaser protected it from liability for conversion due to lack of notice of Liberty’s security interest. Barbee argues it did not purchase anything from Boaz, but rather, purchased the tractor from the Martha Farms entity. Thus, because it claims it had no knowledge of the entity Boaz, it did not search UCC records under the debtor name Boaz. In this case, it is conclusively established (in accordance with the deemed admissions of Barbee) that Barbee purchased the farm equipment from Boaz, which accordingly establishes the fact that Barbee had actual knowledge of Boaz as the entity with which it was doing business. Despite this knowledge, it is also conclusively established that Barbee failed to check records under the debtor name Boaz. Additionally, it is conclusively established that Barbee failed to make Liberty a joint payee on the checks to Defendant for the purchase of the tractor. The record reflects that if Barbee had checked the UCC records under the debtor name Boaz, it would have discovered Liberty’s properly perfected security interest in the tractor. Barbee thus had constructive notice of Liberty’s security interest in the farm equipment. Further, because Barbee failed to conduct a reasonably diligent inquiry of the UCC records, it is estopped from asserting the financing statement filed in this case was misleading and/or otherwise improperly filed. The material facts were conclusively established and show that Barbee exerted dominion and control over the tractor inconsistent with Liberty’s rights therein. Accordingly, Liberty was entitled to judgment as a matter of law on its conversion claim. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 107,345 — Great Plains National Bank, a national banking association, Plaintiff, vs. Jabez Farms, L.L.C., an Oklahoma limited liability company; and Ronald Ladd and Patricia Ladd, individuals, and sometimes doing business as Ronald Ladd and Patricia Ladd Joint Venture, Defendants, and Liberty National Bank, a national banking association; Additional Defendant/Appellee, Stockmans Bank, an Oklahoma banking corporation; Deer & Company, a Delaware corporation, and Farm Credit of Western Oklahoma, PCA, Additional Defendants, First State Bank of Altus, Intervening Defendant and Third-Party Plaintiff, vs. Western Equipment, LLC, Third-Party Defen-

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dant/Appellant, and R&P Farms, Inc.; Boaz Land and Cattle, LLC; Triple 777 Farm, LLC; Martha Farm, LLC; Barbee-Neuhaus Implement Co.; Quality Implement Co., Ryan Robbins; Timothy Wayne McDaniel; and Western Equipment, LLC; Danny McCustin, and Larry McLaughlin, Third-Party Defendants. Appeal from the District Court of Jackson County, Oklahoma. Honorable Allen McCall, Judge. This case arises from a foreclosure action initiated by Plaintiff (Great Plains) against Defendants (Ladd). Several other banks were joined in the action. Liberty National Bank (Liberty) filed a Third-Party Petition against Western Equipment, L.L.C. (Western), alleging conversion of a certain cotton picker by Western. Liberty claimed a security interest in the cotton picker purchased by Western from Ladd and/ or Boaz Land & Cattle, L.L.C. (Boaz) and/or the proceeds resulting from its resale. Liberty filed a Motion for Summary Judgment, asserting there was no genuine issue of material fact whether Western had exercised wrongful dominion and control over the cotton picker contrary to Liberty’s rights. The trial court granted summary judgment to Liberty finding Western had actual knowledge that Ladd operated as Boaz Land & Cattle based upon previous transactions with Ladd/Boaz. The court further found Liberty had filed a UCC financing statement naming Liberty as secured party, Boaz as debtor, and specifically identified the cotton picker as collateral. Additionally, the court found that the failure of Western to check UCC records under the debtor name of Boaz was negligent, and that Western failed to make Liberty a joint payee on the check issued for the purchase of the farm equipment at issue. In its entry of judgment against Western, the court ultimately concluded that there was no genuine issue of material fact that Western had wrongfully exerted dominion and control over the cotton picker proceeds inconsistent with Liberty’s rights and that Liberty was therefore entitled to judgment as a matter of law against Western for conversion of property. Western appeals from the judgment entered in Liberty’s favor. Western primarily seeks to challenge the established fact of its purchase of the farm equipment from Boaz, which was previously admitted upon its failure to respond to Liberty’s Requests for Admissions. Western contends its status as an innocent purchaser protected it from liability for conversion due to lack of notice of Liberty’s security interest. Western argues it did not purchase anything Vol. 81 — No. 24 — 9/11/2010

from Boaz, but rather, purchased the cotton picker from Ronald and Patricia Ladd Joint Venture. Thus, because it claims it had no knowledge of the entity Boaz, it did not search UCC records under the debtor name Boaz. In this case, it is conclusively established (in accordance with the deemed admissions of Western) that Western purchased the farm equipment from Boaz, which accordingly establishes the fact that Western had actual knowledge of Boaz as the entity with which it was doing business. Despite this knowledge, it is also conclusively established that Western failed to check records under the debtor name Boaz. Additionally, it is conclusively established that Western failed to make Liberty a joint payee on the check to Defendant for the purchase of the cotton picker. The record reflects that if Western had checked the UCC records under the debtor name Boaz, it would have discovered Liberty’s properly perfected security interest in the cotton picker. Western thus had constructive notice of Liberty’s security interest in the cotton picker. Further, because Western failed to conduct a reasonably diligent inquiry of the UCC records, it is estopped from asserting the financing statements filed in this case were misleading and/ or otherwise improperly filed. The material facts were conclusively established and show that Western exerted dominion and control over the cotton picker inconsistent with Liberty’s rights therein. Accordingly, Liberty was entitled to judgment as a matter of law on its conversion claim. AFFIRMED. Opinion by Mitcehll, J.; Joplin, P.J., and Bell, V.C.J., concur. 107,534 — Stephen Burnett, Plaintiff/Appellant, vs. John Middleton, Linda Jester, Robin Roof, Defendants/Appellees. Appeal from the District Court of Payne County, Oklahoma. Honorable Donald L. Worthington, Judge. Appellant is an inmate in the custody of the Department of Corrections (DOC), and is incarcerated at the Cimarron Correctional Facility (CCF). He appeals from the trial court’s order dismissing his petition against Appellees, who are CCF employees. Appellant contends Appellees wrongfully denied him (1) adequate medical care, (2) receipt of legal mail and (3) his right to confidential communications with his attorney. Appellees reduced Appellant’s pain medicine, Naproxen Sodium (Aleve), from three to two 500 mg tablets per day. The undisputed record shows Appellees gave Appellant the amount of Aleve prescribed by the CCF physician. Appellant was also advised he could

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purchase additional Aleve in the facility commissary. Appellees’ actions do not constitute deliberate indifference to medical needs. Prison records show the letter about which Appellant complains, marked “legal mail” on the envelope and addressed to Appellant, actually contained a letter to another inmate. The letter was confiscated and directed to be returned to the sender. This allegation presents no valid claim. Appellant’s one-time meeting with his attorney behind glass did not deny Appellant adequate, effective and meaningful access to his attorney. Additionally, we reject Appellant’s claims that the trial court wrongfully denied his motions to attend two hearings, denied his request for a court reporter to transcribe the proceedings of those hearings, and conducted the hearings ex parte. The record plainly reflects no evidentiary hearings were conducted and the trial court’s decisions were based solely on the pleadings filed by the parties. The trial court’s order is AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,567 — Tom Chenoweth, Plaintiff/Appellant, vs. City of Miami, Defendant/Appellee. Appeal from the District Court of Ottawa County, Oklahoma. Honorable Robert G. Haney, Judge. 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 City on Plaintiff’s claims to damages for alleged negligent infliction of emotional distress and retaliation. 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). 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. Further, 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. Plaintiff has identified, and we discern, no duty breached by City as to support a claim for negligently inflicted emotional distress. 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, but, the parties’ collective bargaining agreement does not appear in the record 2054

before us. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 107,772 — Stephen Burnett, Plaintiff/Appellant, vs. John Middleton, Joseph Taylor, Harvey Fields, Linda Jester and Sgt. Hickman, Defendants/Appellees. Appeal from the District Court of Payne County, Oklahoma. Honorable Donald L. Worthington, Judge. Appellant is an inmate in the custody of the Department of Corrections (DOC), and is incarcerated at the Cimarron Correctional Facility (CCF). He appeals from the trial court’s order dismissing his petition against Appellees, who are CCF employees. In early May 2009, Appellant was charged with and found guilty of disciplinary misconduct. His security classification was dropped to Level 1 for 60 days and he was ordered to forfeit 90 earned credit days. The hearing officer’s findings were affirmed by both the warden and DOC. Appellant’s misconduct charge arose from his assistance of another inmate with a legal matter, which is clearly prohibited by DOC regulations. Appellant admitted as much and evidence given by two witnesses corroborated the charges. Appellant was afforded his due process. Moreover, as an inmate sentenced to life imprisonment, Appellant does not qualify for earned credits, so the disciplinary ruling cost him none. Appellant has no protected liberty interest in his security classification. We specifically reject Appellant’s claims that the trial court wrongfully (1) denied his motion to attend a hearing, (2) denied his request for a court reporter to transcribe the proceedings of that hearing and (3) conducted the hearing ex parte. The record plainly reflects no evidentiary hearing was conducted and the trial court’s decision was based solely on the pleadings filed by the parties. AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,875 — Jana D. Vorheis, Petitioner, vs. Nabisco Inc., and/or Kraft Foods, Inc., (Own Risk #2158), and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioner (Claimant) seeks review of the order of a Three-Judge Panel of the Workers’ Compensation Court (Panel) which vacated the trial court’s order allowing Claimant to participate in vocational rehabilitation in Orthotics and Prosthetics at OSU-Okmulgee instead of the Francis Tuttle Technology Center in Oklahoma City. The Panel instead awarded Claimant the sum of $8,599.84 from Respondent, Nabisco, Inc.

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(Employer) in full payment of all vocational retraining obligations of Employer. Employer introduced competent evidence that Claimant might be better served with less expensive options than the orthotic and prosthetic technician classes. We find the Panel’s order awarding Claimant a monetary amount is based on competent evidence. SUSTAINED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. Friday, August 27, 2010 107,278 — Lisa Minette Hoffman, Plaintiff/ Appellee, vs. Surgical Associates, Inc., an Oklahoma Corporation, Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Deborah C. Shallcross, Judge. Appellant (Surgical Associates) seeks review of the trial court’s interlocutory order denying its combined motion to compel arbitration and dismiss or stay litigation proceedings. The sole issue on appeal is whether the court correctly determined the arbitration clause in a Medical Group Participation Agreement is unconscionable as to Appellee (Hoffman) so as to prevent enforcement. Hoffman urged the clause was unenforceable because the fees and costs of arbitration under the American Arbitration Association render the arbitration clause unconscionable. We find arbitration costs are minimal in comparison to the recovery sought in this multi-million dollar class action. We further hold such fees are not unconscionable relative to Ms. Hoffman’s net worth and substantial assets. Accordingly, we hold the trial court erred when it failed to grant Surgical Associates’s motion to compel arbitration. The trial court’s order denying Surgical Associates’ motion is reversed and this matter is remanded to the trial court to enter an order compelling arbitration and staying the litigation proceeding. REVERSED AND REMANDED. Opinion by BELL, V.C.J.; JOPLIN, P.J., concurs; MITCHELL, J., concurs in result with opinion. Thursday, September 2, 2010 106,681 — Carma Jo Pritchett, Petitioner/ Appellee, vs. David Allen Pritchett, Respondent/Appellant. Appeal from the District Court of Garfield County, Oklahoma. Honorable Dennis Hladik, Judge. Appellant, David Pritchett (Husband), brought this post-divorce appeal seeking review of the trial court’s determination that the agreed divorce decree between himself and Carma Pritchett (Wife) was an enforceable agreement and as modified by the court was fair, just and reasonable. Husband Vol. 81 — No. 24 — 9/11/2010

and Wife negotiated an agreement in anticipation of their divorce in 2008. Both signed the agreed decree and both testified they intended to abide by the agreement at the time they signed it. Prior to the court reviewing the agreement and issuing the final decree, Husband claimed he was no longer financially able to comply with the agreement. The trial court determined the parties reached an agreement, then the court implemented the agreement with several modifications. In a divorce action, issues of support and division of marital property are matters of equitable cognizance and the trial court’s judgment on appeal will not be disturbed unless found to be against the clear weight of the evidence or an abuse of discretion. Reed v. Reed, 1969 OK 95, 456 P.2d 529, 533. Husband’s first proposition alleged the trial court erred permitting Wife’s attorney to testify at the hearing on matters relating to the divorce agreement and the circumstances under which the agreement was drafted and signed. The attorney was not a likely witness, when this matter initiated and only came to testify after Husband withdrew from the agreement. Husband’s counsel also failed to object to the attorney’s testimony to preserve the error for review. Husband’s second proposition alleged the trial court erred finding the parties reached an agreement. An agreement reached in contemplation of divorce is governed by contract principles. Husband signed the agreement, admitted he intended to abide by it at the time he signed it and did not establish a mistake or any other means of repudiating the agreement. In his third proposition, Husband argued the trial court must either strictly adhere to the agreement or completely disregard it and open proceedings for a full presentation of all issues. However, the couple’s settlement agreement is not binding on the court. The court has the authority to approve, modify or reject the divorce agreement. Acker v. Acker, 1979 OK 67, 594 P.2d 1216, 1219. Husband’s fourth proposition was a widely cast allegation challenging a number of issues including, the overall equity of the decree, Husband’s debt burden, Wife’s income and ability to pay, and improper child support calculations. Husband’s long list of complaints in proposition four ignores the overriding fact that he agreed to these terms. Parties to a divorce can contract for the disposition of property and support and waive rights granted them under a statute inconsistent with the decree. Whitehead v. Whitehead, 1999 OK 91, ¶14, 995 P.2d 1098, 1102. Husband’s fifth alle-

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gation of error is a continuation of his fourth, complaining that debts and assets were not appropriately divided for a fair and just decree. Again, Husband is bound by his agreement. In his final proposition, Husband argued the trial court’s child support award was adjusted upward to $1000/month, not downward as the order indicated, and the resulting support order was not just and reasonable. Husband agreed to this child support obligation, which was above that required under the child support guidelines. There was evidence to support the imputed income amounts that were used and Husband failed to show how the court erred when it enforced the child support agreement. The judgment of the trial court is AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 107,289 — Eliodoro V. Guzman, Petitioner, vs. J&J Tree Services, L.L.C., and CompSource Oklahoma, Insurance Carrier, Respondents. Proceeding to Review an Order of a ThreeJudge Panel of the Workers’ Compensation Court. Petitioner (Claimant) seeks review of an order of the three-judge panel of the Workers’ Compensation Court (Panel). Claimant sets forth two propositions of error. The first proposition has not been preserved for our review. Claimant did not comply with Rule 37 of the Workers’ Compensation Rules, which requires motions for continuance to be in writing and signed. As for the second issue, while the record discloses Claimant filed an application for change of physician (Form A), there is no record of the trial court’s ruling thereon. Rather than waiting for a decision on his Form A, Claimant filed his motion to set for trial (Form 9). Trial on Claimant’s Form 9 was held, however, there is no ruling, order or even a comment by the court. Due to these infirmities, we are unable to reach the merits of the issues raised and we must presume the trial court did not err. The Panel’s order is SUSTAINED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 108,031 — In the Matter of J.D.D. & J.R.F., Alleged Deprived Children, J.D.D. & J.R.F., Appellants, vs. State of Oklahoma, Appellee. Appeal from the District Court of Carter County, Oklahoma. Honorable Thomas S. Walker, Judge. This appeal is from a judgment terminating the parental rights of Mother to her minor children, J.D.D. and J.R.F. The parental rights of the natural fathers were also terminated. Mother and the fathers do not appeal. The minor children appeal claiming the trial 2056

court’s termination order is not supported by clear and convincing evidence. Children also contend the court denied them effective assistance of counsel when it restricted their counsel’s participation in the trial. In parental rights termination cases, the children are statutorily entitled to be represented by independent counsel. Such counsel’s participation is not unlimited. Title 10A O.S. Supp. §1-4-306(A)(2)(c) defines the role of such independent counsel. We find the trial court did not err by limiting Mr. Bahner’s participation to the degree authorized by §1-4-306(A)(2)(c). There is evidence in the record that Mother disregarded and failed to correct the condition that she provide the Children with a stable family environment and a suitable home. State’s witnesses and Mother’s own admissions provide clear and convincing evidence in support of the jury’s conclusion that Mother’s parental rights should be terminated under §1-4-904(B)(5), and that the termination was in the Children’s best interests. The court’s order terminating Mother’s parental rights is affirmed. However, the order fails to recite the Children’s dates of birth and fails to contain certain findings required by §1-4-906(B)(2) which indicate the duty of the parent to support his or her minor child until the child is adopted as provided by §1-4-906(B)(3). We remand this case to the trial court to take such actions as are necessary to correct these deficiencies in the final order. AFFIRMED AND REMANDED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. (Division No. 4) Wednesday, August 18, 2010 107,099 — Heather Franks, Plaintiff/Appellee, v. Sajid Jadoon, Defendant/Appellant. Appeal from an order of the District Court of Oklahoma County, Hon. Donald L. Easter, Trial Judge, entering a victim protection order against Defendant Sajid Jadoon. Plaintiff’s petition for protective order alleged that the day before Defendant had caused her serious physical harm, threatened her, harassed her, and stalked her. The Plaintiff’s evidence was, in the trial court’s words, “borderline.” Further, this single incident cannot establish a pattern of behavior sufficient to support a finding of harassment. Nevertheless, despite the apparent lack of any evidence to support her allegations of stalking, harassment, or abuse, the trial court entered an order commanding Defendant to have “no contact” with Plaintiff for one year. We reverse the order and remand for new trial. REVERSED AND REMANDED FOR

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NEW TRIAL. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., and Rapp, J., concur. Friday, August 20, 2010 107,480 — In the Matter of: D.L. and K.L. Kelvin and Stephanie Looper, Appellants, vs. Oklahoma Department of Human Services, Appellee. Appeal from the District Court of Latimer County, Oklahoma, Hon. Bill Welch, Trial Judge, from two deprived adjudication orders affecting Appellants’ daughter, D.L., and son, K.L. In D.L.’s case, the appealed order came well after a deprived adjudication order and merely set the case for further review. The appeal is therefore premature. In K.L.’s case, the appealed order is supported by competent evidence. AFFIRMED IN PART AND DISMISSED IN PART. Opinion from the Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. Thursday, August 26, 2010 107,693 — Boyd A. Robertson, Petitioner, v. Wattie Wolfe Co., Wausau Underwriters Insurance Co., and the Workers’ Compensation Court, Respondents. Proceeding to Review an Order of The Workers’ Compensation Court, Hon. Eric W. Quandt, Trial Judge. Claimant seeks review of a trial court order admitting a medical report into evidence, and of a threejudge panel order vacating an earlier award and reassigning the case. The report was introduced in violation of the 20-day rule provided by Workers’ Compensation Rule 19(E). The facts do not show good cause for failure to comply with the rule. Furthermore, prejudice would result if the report was admitted. The panel’s reassignment order was outside the scope of the appeal, exceeded the panel’s jurisdiction, and failed to include the required findings of fact and conclusions of law justifying a reassignment. VACATED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division IV, by GABBARD, P.J.; GOODMAN, J., concurs, and RAPP, J., not participating. 107,474 — Joe Tidwell, Individually, Plaintiff/Appellee, vs. Robert Bezner and his spouse, Jean Bezner, Defendants/Appellants. Appeal from Order of the District Court of Stephens County, Hon. G. Brent Russell, Trial Judge, granting a permanent injunction in favor of Plaintiff and requiring Defendants to remove a “bump gate” with electrified wires attached, restricting passage across a roadway easement Vol. 81 — No. 24 — 9/11/2010

granted to Plaintiff, who did not object to Defendants’ cattle coming onto his property. The evidence supports the trial court’s judgment, which found that Plaintiff had established the gate unreasonably interfered with his use and enjoyment of the servient estate, and should be replaced by a less burdensome alternative. AFFIRMED. Memorandum Opinion from Court of Civil Appeals, Division IV, by GABBARD, P.J.; RAPP, J., and GOODMAN, J., concur. Friday, August 27, 2010 108,108 — Billy Dixon, Petitioner, vs. Grand River Dam Authority, Compsource Oklahoma, and the Workers’ Compensation Court, Respondents. Proceeding to Review an Order of the Workers’ Compensation Court, Hon. Gene Prigmore, Trial Judge, denying Claimant’s request for medical treatment based on a change of condition for the worse. The record demonstrates that Claimant’s request for relief is barred by the three-year statute of repose of 85 O.S. Supp. 2009 § 45(C), and that § 45(C) is not an unconstitutional violation of the Equal Protection Clause even though it limits the time in which workers may request to reopen for a worsened condition but does not limit the time that employers may seek termination of benefits for an improved condition. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by GABBARD, P.J.; RAPP, J., and GOODMAN, J., concur. Wednesday, September 1, 2010 105,210 — Michael R. Bailey, Petitioner/Appellee, v. Roger Burgess, Defendant/Appellant. Appeal from an Order of the District Court of Okmulgee County, Hon. Lawrence Parish, Trial Judge, granting a protective order to Plaintiff. The trial court had no authority to grant the order on the grounds of stalking, because Plaintiff did not provide a copy of a criminal complaint to the court, as required by 22 O.S. Supp. 2009 § 60.2(A)(1). The trial court had no authority to grant the order on the grounds of harassment, because Plaintiff was not a family or household member, nor had been in a dating relationship with Defendant. See 22 O.S. Supp. 2009 § 60.1(3). REVERSED AND REMANDED FOR NEW TRIAL. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, J., and Goodman, J., concur. 106,403 — Paul Chester Arbaugh, Plaintiff/ Appellant, v. Brandon Wayne Williams, Defendant/Appellee. Appeal from Order of the District Court of Tulsa County, Hon. Deborah C.

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Shallcross, Trial Judge, denying Plaintiff’s motion for new trial in an automobile negligence case after a jury found the issues of Defendant’s liability in favor of Plaintiff, but awarded zero damages. A jury’s verdict is conclusive as to all disputed facts and conflicting statements by witnesses, and where there is any competent evidence reasonably tending to support it this Court will not disturb the verdict and the resulting judgment. In this case, the jury’s verdict was supported by evidence from which the jury reasonably could have concluded that Plaintiff’s injuries stemmed from pre-existing conditions, and that he was not credible. The trial court did not abuse its discretion in denying Plaintiff’s motion for new trial. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Barnes, J. (sitting by designation), concurs, and Goodman, J., concurs in result. Friday, September 3, 2010 107,397 — STATE OF OKLAHOMA, Plaintiff/ Appellee, v. Thirty-Three Thousand, Seven Hundred Twenty-Five ($33,725.00) Dollars; One (1) .30 Caliber Carbine Rifle With An Unknown Serial Number; One (1) Blue Ruger .357 Revolver With Serial Number 157-85024; One (1) Lorcin .380 Automatic Pistol With Serial Number 354579; One (1) Lorcin .380 Automatic Pistol With Serial Number 326813; One (1) North American Arm .22 Magnum Mini Revolver With Serial Number W21206; One (1) Unknown Brand .45 Caliber Semi Automatic Pistol With Serial Number A11920; One (1) SKS Rifle 7.62 X 39 With Serial Number 013624001231; One (1) Ruger Mini 14 .223 With Serial Number 18383388; One (1) SKS Rifle 7.62 X 39 (With A Redstone Scope) With A Serial Number C 135C0542, As Well As A Serial Number 00356 On The Bolt; One (1) MAK 90 With Serial Number 9347514; One (1) Winchester .30-30 Lever Action Rifle With Serial Number 5396239; And One (1) Winchester Model 1200 12 Gauge Shotgun With Serial Number 146997, Defendants, and Richard Lynn Dopp, Interested Party/Appellant. Appeal from the District Court of Ottawa County, Oklahoma, Hon. B. David Gambill, Trial Judge. Richard Lynn Dopp (Owner), appeals the trial court’s order dismissing the forfeiture action filed against his property. At the time of his arrest in 1996, police seized vehicles, guns, personal property, and

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$33,725.00 in cash from Owner. While the property was in the custody of the State pending forfeiture action, the cash was stolen. Owner filed an untimely tort claim seeking recovery of the cash which was dismissed. In the meantime, the forfeiture claim was finally resolved in 2008. The parties stipulated to the release of the firearms, but the trial court dismissed the remainder of Owner’s claim finding there was no longer any res (the cash) subject to the court’s direction. We affirm the trial court’s legal conclusion that Owner is not entitled to relief on his counterclaim for return of the money filed in a forfeiture action, but that it lies in a tort claim action. Owner has already filed such a claim in both state and federal courts and lost. The trial court’s decision to dismiss State’s forfeiture action is affirmed. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. ORDERS DENYING REHEARING (Division No. 3) Thursday, August 19, 2010 107,821 — Scott Brian Martin, Petitioner, vs. A&F Drywall, Inc., and The Workers’ Compensation Court, Respondents. Petitioner’s Petition for Rehearing, filed August 6, 2010, is DENIED. (Division No. 4) Friday, August 20, 2010 108,233 — Maj. Brian W. Fitzgerald, and Leah Fitzgerald, two Individuals, Plaintiff/Appellant, vs. United Services Automobile Association, Defendant/Appellee. Petition for Rehearing is DENIED. 107,295 — In the Matter of the Estate of Valatus Merral Dicksion, Deceased. Thomas Powell and Koleen Mailloux, Appellants, v. Archie Dicksion, Appellee. The Appellant’s Petition for Rehearing is hereby DENIED. Monday, August 23, 2010 107,339 — State of Oklahoma, ex rel., Department of Transportation, Plaintiff/Appellant, v. Larry Gene Northcutt and Cindy Jo Northcutt, husband and wife; and the Bryan County Treasurer, Defendants/Appellees. Appellee’s Petition for Rehearing is hereby DENIED.

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RHODES, HIERONYMUS, JONES, TUCKER & GABLE has positions for lawyers with 2+ years of insurance defense or significant trial experience. We offer a multistate practice, competitive compensation and a positive team-centered work environment. If you are ready to work with cases that will challenge you to be your very best, we would like to meet you. Contact Kerry Lewis, klewis@rhodesokla.com, (918) 582-1173, Ste 400 Oneok Plaza, Tulsa, OK 74103.

PARALEGAL SPECIALIST - CRIMINAL DIVISION: The U.S. Attorney’s Office is seeking to fill one Paralegal Specialist position in its criminal division. Beginning salary is $38,790 to $57,408 per year depending on qualifications. See vacancy announcement 10-WOK25-D at www.usajobs.opm.gov (Exec Office for US Attorneys) for specific information. Applications must be received by mail or hand-delivered to Lisa Engelke, Human Resources Specialist, 210 Park Ave., Suite 400, Oklahoma City, OK 73102, by 5 p.m. Central Time on Sept. 20, 2010.

DEPUTY GENERAL COUNSEL FOR OKLAHOMA HEALTH CARE AUTHORITY: Under direction of general counsel, attorney with 1 to 3 years experience needed to serve Oklahoma Health Care Authority General Counsel’s Office. Single position to fill is Deputy General Counsel I or II, depending upon experience. Must be admitted to Oklahoma bar with 1 to 3 years experience as a practicing attorney. Experience in prosecuting administrative law cases is helpful. A writing sample will be requested as good writing skills are essential. Need highly motivated attorney willing to work in a team oriented environment working in very complicated health care program serving approximately 800,000 Oklahomans. The Office of the General Counsel performs the following functions for the Oklahoma Health Care Authority: all litigation for the agency, all administrative hearings, collections work, contract drafting, employment law, general administrative rulemaking, copyright and trademarks, and general business advice to agency clients. Reasonable accommodation may be made to enable individuals with disabilities to perform the essential functions of the job. Submit application and questionnaire from website. Deadline: Sept. 30th. OK Health Care Authority, Attn: Human Resources, 2401 N.W. 23rd St., Suite 1-A, Oklahoma City, OK 73107, personnel@okhca.org, www.okhca.org/jobs. EOE. 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.

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A UNIQUE OPPORTUNITY: For the right Oklahoma City personal injury attorney with an existing practice, or boutique law firm, to represent many more clients. Our California law firm is establishing branches nationally and now requires a manager for Oklahoma. Receive fees from new cases you handle in this capacity with no upfront cost. Will not conflict or interfere with your own practice and requires minimal extra time. Five plus years experience with good credentials and sterling professional reputation are essential. If interested, please send CV or other pertinent information in confidence to info@legioncounsel.com. THE LAW FIRM OF PIERCE COUCH HENDRICKSON BAYSINGER & GREEN LLP is accepting resumes for an associate attorney with a minimum of five years experience in insurance defense and/or medical malpractice defense. Please submit resume by e-mail to lawyers@ piercecouch.com.

CLASSIFIED INFORMATION CLASSIFIED RATES: One dollar per word per insertion. Minimum charge $35. Add $15 surcharge per issue for blind box advertisements to cover forwarding of replies. Blind box word count must include “Box ____ , Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.” Display classified ads with bold headline and border are $50 per inch. See www.okbar.org for issue dates and Display Ad sizes and rates. DEADLINE: Tuesday noon before publication. Ads must be prepaid. Send ad (e-mail preferred) in writing stating number of times to be published to: Jeff Kelton, Oklahoma Bar Association P.O. Box 53036, Oklahoma City, OK 73152 E-mail: jeffk@okbar.org Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement notices must be clearly nondiscriminatory.

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