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OFFICERS & BOARD OF GOVERNORS Allen M. Smallwood, President, Tulsa Deborah Reheard, President-Elect, Eufaula Mack K. Martin, Vice President, Oklahoma City Jon K. Parsley, Immediate Past President, Guymon Jack L. Brown, Tulsa Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami Glenn A. Devoll, Enid Steven Dobbs, Oklahoma City W. Mark Hixson, Yukon Jerry L. McCombs, Idabel Lou Ann Moudy, Henryetta David A. Poarch, Norman Ryland L. Rivas, Chickasha Susan S. Shields, Oklahoma City James T. Stuart, Shawnee Molly Aspan, Tulsa, Chairperson, OBA/Young Lawyers Division
events Calendar SEPTEMBER 2010 28
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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
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OCTOBER 2010 1
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
OBA Law-related Education PROS Teacher Training; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024 OBA New Lawyer Experience; 8:30 a.m.; Tulsa County Bar Center, Tulsa; Contact: Jim Calloway (405) 416-7051 Death Oral Argument; Marlon Deon Harmon – D-2008-657; 10 a.m.; Court of Criminal Appeals Courtroom OBA Law-related Education PROS Teacher Training; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024 OBA Technology Committee Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Mark Robertson (405) 848-1944 OBA Women in Law Conference; Southern Hills Country Club; Tulsa; Contact: Renee DeMoss (918) 595-4800 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack Brown (918) 581-8211 OBA Technology Task Force Critical Systems Subcommittee Meeting; 1:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Craig Combs (405) 416-7040 OBA Survey Task Force; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Brian Hermanson (580) 762-0020
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OBA Diversity Committee Meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Marvin Lizama (918) 742-2021 Oklahoma Bar Foundation Meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 OBA Law Day Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Tina Izadi (405) 521-4274 OBA New Lawyer Experience; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jim Calloway (405) 416-7051 For more events go to www.okbar.org/calendar
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Oklahoma Bar Association
table of
contents September 25, 2010 • Vol. 81 • No. 25
page 2067 Events Calendar 2070 Index to Court Opinions 2071 Supreme Court Opinions 2097 Court of Criminal Appeals Opinions 2101 Annual Meeting 2105 OBA Board of Governors Vacancies and Nominating Petitions
2108 Court of Civil Appeals Opinions 2114 Disposition of Cases Other Than by Publication
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Index To Opinions Of Supreme Court 2010 OK 52 IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONPAYMENT OF 2010 DUES S.C.B.D. No. 5654........ 2071 2010 OK 62 IN THE MATTER OF THE REINSTATEMENT OF ANGELA BUNKLEY PLOWMAN TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS SCBD 5584................................................................................ 2071 2010 OK 61 IN THE MATTER OF THE APPLICATION FOR REINSTATEMENT OF: JAMI LYNN STEWART a/k/a JAMI WATTS, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS. No. SCBD 5444........................................................................................................................................... 2071 2010 OK 67 STATE OF OKLAHOMA, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. GLOYD LYNN McCOY, Respondent. SCBD #5592................................................. 2079 2010 OK 68 IN RE: APPLICATION OF TEENA GAYLE GUNTER, 3244 NW 22nd ST., OKLAHOMA CITY, OKLAHOMA 73107 FOR ADMISSION TO THE PRACTICE OF LAW ON MOTION PURSUANT TO RULE TWO OF THE RULES GOVERNING ADMISSION TO THE PRACTICE OF LAW IN THE STATE OF OKLAHOMA SCBD No. 5650............................................................................................................................................... 2089 2010 OK 65 JPMORGAN CHASE BANK, N.A., Plaintiff/Appellant, v. SPECIALTY RESTAURANTS, INC.; PAUL KRETH; JAMES VALLION; and THE JAMES VALLION TRUST, Defendants/Appellants. No. 106,289............................................................................... 2090
Index To Opinions Of Court of Criminal Appeals 2010 OK CR 21 RICARDO ENRIQUE FLOREZ, Appellant, v. STATE OF OKLAHOMA, Appellee. Case No. F-2009-765......................................................................................................... 2097
Index To Opinions Of Court of Civil Appeals 2010 OK CIV APP 86 NBI SERVICES, INC., Appellant, vs. THE CORPORATION COMMISSION OF THE STATE OF OKLAHOMA, composed of The Honorable Bob Anthony, Chairman, The Honorable Jeff Cloud, Vice Chairman, and The Honorable Dana L. Murphy, Commissioner; and DAVIS OPERATING CO., Appellees. Case No. 107,452.......................................................................................................................................... 2108
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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 52 IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONPAYMENT OF 2010 DUES S.C.B.D. No. 5654. September 20, 2010 ORDER NUNC PRO TUNC AMENDING ORDER OF SUSPENSION This matter comes on for consideration before this Court upon an Application of the Oklahoma Bar Association for an Order Nunc Pro Tunc amending the Order of Suspension issued by this Court on July 1, 2010, and removing the name of Michael Dean Clay, OBA No. 13624, from said Order, whereby the names of members of the Oklahoma Bar Association were suspended from the membership roles of the Oklahoma Bar Association and from the practice of law in the State of Oklahoma, for failure to pay their dues for the year 2010. The Court, having considered the Application on file herein, finds that the Order of Suspension issued by this Court on July 1, 2010, should be amended, and the name of Michael Dean Clay, OBA No. 13624, should be removed from the Order of Suspension. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by this Court that the Order of Suspension issued by this court on July 1, 2010, is hereby amended, and the name of Michael Dean Clay, OBA No. 13624, is hereby removed from said Order. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 20th DAY OF September, 2010. /s/ James E. Edmondson CHIEF JUSTICE ALL JUSTICES CONCUR.
OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS SCBD 5584. September 14, 2010 ORDER On de novo examination of the paperwork on file and of the transcript and record of proceedings before the Professional Responsibility Tribunal’s (PRT) assigned trial panel, the court finds that the applicant established by clear and convincing proof that: (1) she is an ethically fit person, (2) she voluntarily relinquished her Oklahoma law license on 27 March 2006 and has not engaged in the unauthorized practice of law at any time, (3) the applicant is sufficiently abreast of intervening changes in Oklahoma law to qualify for reinstatement without examination. The applicant’s license to practice law in the State of Oklahoma shall stand reinstated upon payment of the assessed costs of this proceeding in the sum of $794.71. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 13TH DAY OF SEPTEMBER, 2010. James E. Edmondson /S/CHIEF JUSTICE ALL JUSTICES CONCUR 2010 OK 61 IN THE MATTER OF THE APPLICATION FOR REINSTATEMENT OF: JAMI LYNN STEWART a/k/a JAMI WATTS, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS.
2010 OK 62
No. SCBD 5444. September 14, 2010
IN THE MATTER OF THE REINSTATEMENT OF ANGELA BUNKLEY PLOWMAN TO MEMBERSHIP IN THE
ORDER
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¶1 Rehearing is granted. The May 12, 2009, majority and dissenting opinions in the abovestyled matter, published at 2009 OK 29, are
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withdrawn and the opinion issued this date is substituted therefor. The vote below is on the grant of rehearing only. The vote on the substituted opinion is shown thereon.
tax liability that led to her suspension in 2002.2 Ms. Stewart concedes that the tax liability has not been fully paid, but explains that the tax liability was discharged in bankruptcy in 2006.
DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 13TH DAY OF SEPTEMBER, 2010.
¶3 Relying on prior cases in which reinstatement turned on payment of the tax liability that lead to suspension3, the opinion of May 12, 2009, held that the discharge in bankruptcy “cannot be treated as tantamount to having paid the [tax] debt as did the attorneys in [the prior reinstatement cases].” The opinion tied restoration of Ms. Stewart’s fitness to practice law to the fulfillment of her moral obligation to pay the tax liability, notwithstanding its discharge in bankruptcy. The dissenting opinion argued that the discharged tax liability can not be a basis to deny Ms. Stewart a license to practice law.
James E. Edmondson /S/CHIEF JUSTICE ¶2 EDMONDSON, C.J., KAUGER, COLBERT, REIF, JJ., and LAVENDER, S.J., concur. ¶3 TAYLOR, V.C.J., OPALA, WATT, and WINCHESTER, JJ., dissent. ¶4 HARGRAVE, J., disqualified. PROCEEDING FOR REINSTATEMENT ¶0 Upon completion of a four year suspension, attorney sought reinstatement. In an opinion issued May 12, 2009, this court denied reinstatement because attorney had not paid tax liability that led to suspension. In her petition for rehearing, attorney asserted that the tax liability was discharged in bankruptcy and its nonpayment could not be the basis to deny her application under 25 U.S.C. § 525(a). Upon reconsideration we agree. Rehearing has been previously granted and the opinion of May 12, 2009,1 has been withdrawn. THE APPLICATION FOR REINSTATEMENT IS GRANTED AND PETITIONER IS REINSTATED TO THE PRACTICE OF LAW UPON PAYMENT OF COSTS. Mack K. Martin, Martin Law Office, Oklahoma City, Oklahoma, for Applicant for Reinstatement. Lorraine D. Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Respondent, Oklahoma Bar Association. OPINION ON REHEARING REIF, J.: ¶1 On May 12, 2009, this Court issued an opinion that denied Jami Lynn Stewart’s application to be reinstated to the practice of law. Both the General Counsel of the Oklahoma Bar Association and the Professional Responsibility Tribunal had recommended denial of Ms. Stewart’s application for reinstatement. ¶2 The point of contention over Ms. Stewart’s reinstatement centers on her failure to pay the 2072
¶4 In her petition for rehearing, Ms. Stewart argued (as did the dissenting opinion) that refusing to restore her license based on her nonpayment of the discharged tax liability is contrary to 11 U.S.C. § 525(a),4 and the United States Supreme Court’s decision in Perez v. Campbell, 402 U.S. 637 (1971). Upon further consideration, we now conclude that § 525(a) precludes any consideration of a debt discharged in bankruptcy in connection with the debtor’s application for a government granted license. ¶5 To be sure, an important state interest is served by recognizing that suspended attorneys have a moral obligation to pay any tax liability that led to their suspension. Likewise, this Court has an interest in applying such a standard fairly and consistently to achieve justice, to rehabilitate errant members of the bar and to protect the public. However, the United States Supreme Court has made it clear that such interests cannot be enforced when to do so would frustrate the purpose of the Bankruptcy Act. ¶6 In Perez, the Supreme Court said that “’(o)ne of the primary purposes of the Bankruptcy Act’ is to give debtors ‘a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.’” 402 U.S. at 648 (citations omitted). The Court also concluded that section 525(a) was enacted to fulfill this purpose and observed that “any state [action] which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause.” 402 U.S. at 652. Suspended attorneys
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who obtain a bankruptcy discharge of the tax liability that led to their suspension are not excepted from the protection afforded by section 525(a), and the existence of a state interest in perpetuating such liability is not a sufficient reason to deprive such attorneys of “the full effectiveness of the federal law.” ¶7 Aside from Ms. Stewart’s nonpayment of the tax liability that led to her suspension, she has otherwise met the requirements for reinstatement. The record reflects that Ms. Stewart has demonstrated (1) appreciation for the seriousness of the misconduct that led to her suspension; (2) remorse for the harm done and the adverse impact of the misconduct on her clients, the legal profession, and the judicial system; (3) compliance with the condition of suspension to refrain from the practice of law; and (4) competence in the learning of the law. If this Court gives the bankruptcy discharge and § 525(a) “full effectiveness,” then we have no further inquiry to make about the bona fides5 of Ms. Stewart’s resort to bankruptcy vis-à-vis her reinstatement to the practice of law. Not only has Ms. Stewart’s inability to pay the tax liability been conclusively established and the liability extinguished, but the party to whom the liability was owed — the United States Internal Revenue Service — raised no objection to such actions by the bankruptcy court. THE APPLICATION FOR REINSTATEMENT IS GRANTED AND PETITIONER IS REINSTATED TO THE PRACTICE OF LAW UPON PAYMENT OF COSTS. ¶8 EDMONDSON, C.J., KAUGER, COLBERT, REIF, JJ., and LAVENDER, S.J., concur. ¶9 TAYLOR, V.C.J., OPALA, WATT, and WINCHESTER, JJ., dissent. ¶10 HARGRAVE, J., disqualified. 1. In re: Application for Reinstatement of Stewart, 2009 OK 29. 2. The circumstances surrounding Ms. Stewart’s suspension in 2002 are set forth in State ex rel. Oklahoma Bar Association v. Stewart, 2003 OK 13, 71 P.3d 1. 3. Matter of Reinstatement of Hardin, 1996 OK 115, 927 P.2d 545, Matter of Reinstatement of Crabtree, 1990 OK 49, 793 P.2d 296, Matter of Reinstatement of Clifton, SCBD No. 3451, 59 O.B.J. 1632, No. 25 (June 14, 1988). 4. Protection against discriminatory treatment is found in 11 U.S.C. § 525 (2005) (emphasis added), which states: (a) Except as provided in the Perishable Agricultural Commodities Act, 1930, the Packers and Stockyards Act, 1921, and section 1 of the Act entitled “An Act making appropriations for the Department of Agriculture for the fiscal year ending June 30, 1944, and for other purposes,” approved July 12, 1943, a governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, deny employment to, terminate
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the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act. (b) No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt— (1) is or has been a debtor under this title or a debtor or bankrupt under the Bankruptcy Act; (2) has been insolvent before the commencement of a case under this title or during the case but before the grant or denial of a discharge; or (3) has not paid a debt that is dischargeable in a case under this title or that was discharged under the Bankruptcy Act. (c)(1) A governmental unit that operates a student grant or loan program and a person engaged in a business that includes the making of loans guaranteed or insured under a student loan program may not deny a student grant, loan, loan guarantee, or loan insurance to a person that is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, or another person with whom the debtor or bankrupt has been associated, because the debtor or bankrupt is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of a case under this title or during the pendency of the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act. (2) In this section, “student loan program” means any program operated under title IV of the Higher Education Act of 1965 or a similar program operated under State or local law. 5. After closing her practice, Ms. Stewart worked for a drilling company from November 2002 to September 2003. The president of the company testified that Ms. Stewart was doing well, and had put together the company’s first drilling program when she had a terrible car wreck. Her injuries included a broken ankle, a broken sternum and five broken ribs. Ms. Stewart required physical therapy for almost a year for these injuries. Medical bills for these injuries totaled just over $11,000 and were included in her bankruptcy schedules. Due to her injuries, she was out of work several months. Her physical condition also led her to another change of occupation. Viewed in the totality of the circumstances, Ms. Stewart’s resort to bankruptcy was not intended as a short cut to reinstatement.
WATT, J., with whom Taylor, V.C.J., Opala and Winchester, JJ. join, dissenting: ¶1 It is useful to note at the outset what this case is not about. It is not about whether the respondent should be held to blame for the consequences of her failure to pay a lawful debt. It is not about her moral or legal right to avail herself of the bankruptcy laws. Finally, it is not about whether this Court “condones” Stewart’s prior misconduct. It is about the respondent’s fitness to practice law. By losing sight of this fact, the majority fails to focus properly on the failure of the respondent to meet financial obligations she promised this Court, the federal court, and the Internal Revenue Service (IRS) she would pay and how this failure reflects on her moral fitness to practice law. ¶2 The majority welcomes the respondent, Jami Lynn Stewart (Stewart/attorney), back
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into the fold of the Oklahoma Bar Association. It declares the respondent to be of moral character1 sufficient to practice law in the State of Oklahoma, an individual who: was originally disciplined for being convicted of income tax evasion; charged bankruptcy clients unauthorized fees to the tune of $30,000.00; made misrepresentations to the Bankruptcy Court regarding the charging of fees; utilized her promise to pay her back taxes to the Internal Revenue Service as a tool to obtain a reduced discipline from this Court; rather than paying her just debt to the federal government, discharged income taxes and penalties due and owing; and now appears before this Court claiming that restitution was made through lawful means and arguing that we should not look to the “discharge” as an indicator of her moral character. ¶3 The majority relies upon the United States Supreme Court’s opinion in Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971) for the proposition that we must ignore the respondent’s bankruptcy discharge in considering whether her name should be again added to the roll of attorneys. In so doing, it ignores the expressed legislative intent of the United States Congress and gives an overly broad interpretation to an opinion both factually and legally distinguishable from the question presented here: whether the respondent’s character is such that she should be readmitted to the practice of law in Oklahoma. Because the respondent has not demonstrated evidence more convincing of her qualifications to practice law than one seeking admission for the first time,2 I dissent. FACTS RELEVANT TO REINSTATEMENT ¶4 The majority does not present a detailed factual outline of what brought about Stewart’s suspension from the practice of law for four years, a suspension tantamount to disbarment.3 On September 20, 2002, we entered an order of interim suspension. The suspension arose from Watts’ criminal conviction on May 21, 2002 in the United States District Court for the Western District of Oklahoma for failure to file her 1996 federal income tax return and for contempt for wilfully failing to disclose charges of $30,000.00 in fees in bankruptcy proceedings. In addition, the respondent was suspended from the practice of law in the United States Bankruptcy Court for the Western District of Oklahoma and in the United 2074
States Bankruptcy Court for the Eastern District of Texas. ¶5 Stewart pled guilty to charges of income tax evasion and to contempt charges related to failing to disclose fees collected in numerous bankruptcy proceedings. She was placed on probation for four years, ordered confined in her home for 180 days, and directed to complete 104 hours of community service. Having met the conditions of her probation, Stewart was successful in having her probation terminated on October 1, 2004, approximately 16 months earlier than originally scheduled. We can only assume that, at that time, she was meeting her obligation to the IRS as the making of such payments was a condition of her probation.4 ¶6 On February 11, 2003, we suspended the attorney for four years retroactive to the date of the interim suspension order. A consideration taken into account in State ex rel. Oklahoma Bar Ass’n v. Stewart (Stewart I), 2003 OK 13, 71 P.3d 1, in entering the four-year suspension rather than disbarment was the respondent’s agreement with the IRS to pay her tax debt of approximately $16,566.00. ¶7 It is apparent that the respondent did not take her promise to repay her tax debt seriously either when it was made to the IRS, to the federal court at the time her probation was entered, or to this Court. Almost immediately after having filed a bankruptcy petition seeking to discharge a tax liability of between $200,000.00 and $500,000.00,5 the respondent filed a petition for reinstatement. The bankruptcy proceeding was filed in January of 2007, well after the date the respondent was successful in getting her probation terminated. Stewart withdrew the application upon advice of the General Counsel’s Office that other attorneys not having satisfied tax obligations had been denied reinstatement. ¶8 On March 19, 2007, Stewart received her discharge in bankruptcy. She filed a second petition for reinstatement on September 8, 2008 pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. The trial panel determined that Stewart had not met the burden of proof for reinstatement and recommended that reinstatement be denied and costs of $1,015.53 be imposed. Several factors were of specific importance to the trial panel in making its recommendation that reinstatement be withheld. It found it
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“difficult to make a faithful assessment of Stewart’s testimony in relation to her awareness of her past conduct” and “moral character.”6 The trial panel was not convinced that Stewart was yet fully aware of the seriousness of her misconduct and the disrepute she had brought on the profession. Rather than recognizing the seriousness of her criminal conviction, “she gave excuses and made rationalizations” causing the trial panel concern. Stewart was “defensive and evasive” in answering questions before the trial panel.7 Finally, the trial panel found troubling Stewart’s representation that restitution had been made fully by her discharge of a debt of approximately $300,000.00 which was the subject of a tax lien. It observed that “notwithstanding Stewart’s legal discharge of her tax debt, she made no comment to indicate that she had a sense of moral obligation to pay her income taxes.” a) Congress did not intend to bar a licensing Court from considering the circumstances surrounding bankruptcy. ¶9 The legislative history of the Bankruptcy Act indicates that Congress intended to bar a per se rule which would make filing in bankruptcy an automatic bar to a license or similar grant. Congress did not intend to preclude examination of the circumstances surrounding bankruptcy. ¶10 See, H.R.Rep.No. 95-595, 95th Cong. 1st Session at 164 (1977), reprinted in 5 U.S.Code Cong. & Admin.News, 95th Cong.2d Sess. 5787, 5963, 6126 (1978) providing in pertinent part: . . . The prohibition does not extend so far as to prohibit examination of the factors surrounding the bankruptcy, the imposition of financial responsibility rules if they are not imposed only on former bankrupts, or the examination of prospective financial condition or managerial ability. The purpose of the section is to prevent automatic reaction against an individual for availing himself of the protection of the bankruptcy laws. . . . (I)n those cases where the causes of bankruptcy are intimately connected with the license, grant or employment in question, an examination into the circumstances surrounding the bankruptcy will permit governmental units to pursue appropriate regulatory policies and take Vol. 81 — No. 25 — 9/25/2010
appropriate action without running afoul of bankruptcy policy.” b) Perez v. Campbell is factually and legally distinguishable. ¶11 In Perez, the issue was identified by the Supreme Court as whether a state statute that protected judgment creditors from “financially irresponsible persons” conflicted with a federal statute that gives discharged debtors a new start “unhampered by the pressure and discouragement of preexisting debt.” The Court held that a specific provision in Arizona’s statutory scheme providing that a discharge in bankruptcy would not relieve the individual from having a driver’s license suspended if the individual failed to satisfy a judgment entered against him in an action arising from the operation of a motor vehicle was unconstitutional. The Perez Court found the provision invalid under the supremacy clause of the United States Constitution as conflicting with the mandate of the Bankruptcy Act providing that receipt of a discharge in bankruptcy fully discharged all but certain specified judgments. ¶12 Perez differs factually from the situation presented here on three significant grounds. First, although this Court is certainly concerned with the fiscal responsibility of those attorneys it licenses, the primary purpose of a reinstatement proceeding is not to protect judgment creditors from “financially irresponsible persons.” It is to protect the public from being harmed by unscrupulous individuals holding a license to practice law. Second, the issue presented is not whether an individual should be allowed to maintain a license to operate a vehicle on the public roads and highways. Rather, it is to determine whether Stewart has the moral character necessary of one in the legal profession to undertake the representation of clients. Third, there is no statutory provision or disciplinary rule, as existed in Perez, which provides specifically that a discharge of debt in bankruptcy will ipso facto prohibit the suspended or disbarred attorney from returning to the practice of law. ¶13 A number of decisions from sister states have made it clear that Perez stands as no bar to our inquiry into Stewart’s discharge in bankruptcy to the extent that it reflects on her good moral character or lack thereof.8 In analyzing Perez in Matter of Anonymous, 74 N.Y.2d 938, 550 N.Y.S.2d 270, 549 N.E.2d 472 (1989), the New York court held that the denial
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of a license to practice law did not violate the federal statute prohibiting governmental units from refusing to grant licenses solely because the applicant is or has been a bankruptcy debtor. In so doing, it recognized that Perez was intended to protect debtors from being denied governmentally granted privileges because of the bankruptcy. Nevertheless, it looked to the legislative history of the bankruptcy code and determined that Congress’ concern was that discrimination against debtors, based upon the fact of bankruptcy alone, should not exist. Nevertheless, it also acknowledged that the statutory scheme was not intended to shield debtors from reasonable inquiries about their ability to manage financial matters when the ability to do so is related to their fitness for the license sought. ¶14 The New York court recognized, as this Court has done on numerous occasions, that the mishandling of financial affairs, reflects on an attorney’s character. It found that where the determination of unfitness does not rest on the fact of bankruptcy but on conduct reasonably viewed as incompatible with the lawyer’s duties and responsibilities as a member of the Bar, neither the Bankruptcy Code nor Perez prohibit the refusal to allow licensure. ¶15 In Matter of Application for Reinstatement of Gunter, 344 Or. 368, 182 P.3d 187 (2008), reconsideration allowed to correct factual statements without alteration of conclusion of opinion, 344 Or. 540, 186 P.3d 286 (2008),9 the Oregon Supreme Court has taken the same position on attorney licensure as did the New York court in its analysis of the bankruptcy code. It held that the federal statutory scheme did not prohibit examination of the circumstances surrounding bankruptcy, as those circumstances illustrate the judgment of the applicant for admission to the Bar in handling serious financial obligations. Like the New York court, the Oregon tribunal determined Congress intended that where bankruptcy filings were intimately connected with the license, grant, or employment in question, an examination into the circumstances surrounding the bankruptcy would be allowed, giving governmental units the authority to pursue regulatory policies without running afoul of bankruptcy policy. It determined that the filing of bankruptcy can demonstrate a “selfish exercise of legal rights and a disregard of moral responsibilities.”10 2076
¶16 In Hippard v. State Bar of California, 49 Cal.3d 1084, 264 Cal.Rptr. 684, 782 P.2d 1140, the petitioner contended that he satisfied his burden of proving rehabilitation, and that the State Bar erred in concluding he had made insufficient efforts to repay clients or the State Bar Client Security Fund. He maintained, as does Stewart here, that the denial of reinstatement based on his failure to repay debts discharged in bankruptcy in the absence of a clear showing of financial inability to do so undermined the purpose of the bankruptcy laws. ¶17 The California Court found the argument unpersuasive noting that the purpose of attorney discipline was to protect the public from specified professional misconduct and at the same time rehabilitate the attorney. It determined that restitution was not imposed solely because the attorney failed to pay a debt but instead sought relief in bankruptcy. Therefore, evaluation of the debt as an indication of character did not violate the bankruptcy laws. The Hippard Court held that consideration of the efforts to pay debts due and owing should be considered in the evaluation of a petition for reinstatement as an indicator in the steps taken towards rehabilitation. ¶18 The Minnesota Supreme Court was faced, in Application of Gahan, 279 N.W.2d 826, 4 A. L.R.4th 426 (Minn. 1979), with the question of whether an applicant for admission to the Bar Association could be denied participation for his failure to repay several student loans under the Supreme Court’s decision in Perez. The Minnesota Court acknowledged, as has this Court on countless occasions, that an applicant’s conduct in satisfying his financial obligations has been widely recognized as a relevant factor in assessing good moral character. It determined that Perez did not stand as a bar to it considering evidence of the applicant’s good moral character prior to discharge on grounds that there was no undertaking to repay student loans. It went on to state that the applicant could not rely on an argument that his failure to repay the debt related to some compelling hardship reasonably beyond control, when the applicant like Stewart here, was making a salary sufficient to have retired the debt during the period prior to bankruptcy.11 ¶19 Florida’s highest Court took the same position as that espoused in Gahan when faced with the question of whether an applicant for admission to the Bar Association could be denied under Perez when bankruptcy was
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sought to defeat creditors.12 It held that consideration of an individuals “good moral character” extended to conduct which would cause reasonable persons to have substantial doubts about an individual’s honesty, fairness, and respect for rights of others and for laws of the state and nation. It refused admission to the applicant who had admittedly exercised a legal right to be freed of debts through bankruptcy but decried the individual’s failure to recognize his moral obligation of repayment.13 c) Reinstatement should be denied because of the lack of respondent’s good moral character. ¶20 The majority opinion in Stewart’s reinstatement request makes it clear that the fact of filing of the bankruptcy is not, in and of itself, the reason for denying reinstatement. It provides in pertinent part at ¶¶24-28: ¶24 The dissent would allow reinstatement based on the premise that a failure to allow Stewart to return to the practice of law based solely on her failure to meet her federal tax obligations violates concepts of federal constitutional principles. It is significant to note that the constitutional argument is raised sua sponte and was not relied upon by the attorney as a basis for her reinstatement petition. Furthermore, the dissent’s analysis oversimplifies the decision to deny reinstatement. ¶25 Reinstatement is denied on the basis of Stewart’s failure to present clear and convincing evidence that, if readmitted, her conduct would conform to the high standards required of a member of the Bar Association.14 Stewart’s omission in meeting her monetary obligations to the federal government is a reflection upon her character in that it demonstrates her failure to understand that the general public, the judiciary, and this Court must be able to rely upon her representations. ¶26 In Stewart I, the attorney argued that her misconduct called for either a public censure or, at most, a six month suspension. At that time Stewart had been suspended or disbarred in six jurisdictions: the United States Bankruptcy Court for the Western District of Oklahoma, the United States Bankruptcy Court for the Eastern District of Texas, the United States District Courts for the Eastern District, the Northern District, and the Southern District of Vol. 81 — No. 25 — 9/25/2010
Texas, and from the United States District Court for the Western District of Oklahoma. Stewart had also been convicted for contempt for violating the United States Code involving the overcharging of clients for fees and the failure to report the collection of such fees to the respective bankruptcy courts. She admitted failing to pay her tax obligations for at least two years. Most instructive is the fact that one factor this Court considered in imposing a fouryear suspension rather than disbarring the attorney was the fact that Stewart had an agreement with the Internal Revenue Service to pay her tax debt. The same agreement for repayment was a condition of the attorney’s probation. ¶27 The decision that the attorney does not possess the character necessary for reinstatement is not based merely on the failure to repay her debt. It encompasses a character flaw related to her promise to pay. If Stewart cannot be relied upon to meet her contractual duties to the federal government, this Court has no assurance that she will carry out promises entered in with regard to her clients, other attorneys, or the courts in which she might appear. ¶28 Another factor which causes this Court pause in allowing reinstatement is the attorney’s failure to realize that her prior conduct is relevant to a determination of her current good character. Before the trial panel, the attorney testified that she did not believe that the reinstatement proceedings should encompass a “retrial of the original conduct.”15 In her reply brief, filed on March 11, 2008, the attorney argued that “due to claim preclusion (res judicata) it is inappropriate to re-litigate the original offense in this case.” Stewart makes this argument despite a long line of Oklahoma jurisprudence making it clear that the seriousness of the original misconduct is one factor to be considered in any reinstatement proceeding. [Footnotes omitted. Emphasis in original.] CONCLUSION ¶21 This Court is entrusted with the exclusive duty to assure the high moral standards of the Oklahoma Bar Association and its members. Unlike my colleagues in the majority, I have no difficulty in concluding that federal law does not preclude us from evaluating the
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responsibility of the respondent to undertake the payment of a legally imposed debt.16 ¶22 Perez presents no bar to determinations that circumstances surrounding the filing of a bankruptcy petition may be considered in situations where the professional licensure of an individual may implicate the duty to manage money judiciously or where the filing may reflect character flaws of the applicant. This is precisely what the Court did in refusing originally to allow Stewart’s reinstatement. Therefore, I dissent to the grant of rehearing. ¶23 As I cast my vote, I am saddened. The majority has abdicated its judicial responsibility to protect the public. I am left wondering whether it will now allow the reinstatement of: an individual convicted of the willful filing of false individual tax returns;17 an attorney convicted of felony conspiracy in connection with acts intended to defraud creditors, including the IRS;18 an attorney conspiring to defraud the United States by concealing taxable income;19 an attorney who discharged a debt in bankruptcy which caused significant economic harm to his clients where such conduct had previously been viewed as dishonest, fraudulent, deceitful and misleading and had caused embarrassment to this Court and an undermining of public confidence in the Bar Association and it members;20 an attorney who failed to pay taxes from 1990 through 1994 demonstrating his lack of character to support reinstatement;21 or an attorney who was suspended following conviction for making and subscribing a false tax return and attempting to evade and defeat responsibility to pay income taxes.22 Were I any of the attorneys disciplined in these cases, I would look at the majority’s pronouncement as a statement that “all sins are forgiven” and be encouraged to prepare an application for reinstatement based on the majority’s unexplainable lax strictures in this cause. To allow reinstatement of the respondent would, at best, undermine our absolute constitutional authority to regulate the practice of law or, at worst, violate the oath of office which each of us has sworn to uphold. 1. Rule 11.5, Rules Governing Disciplinary Proceedings, see note 2, infra, requires a “specific finding” on the issue of an attorney’s “good moral character” when seeking readmittance to the Bar Association. 2. Rule 11.4, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A; In re Reinstatement of Fraley, 2005 OK 39, ¶37, 115 P.3d 842. 3. Rule 11,1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A, Oklahoma Bar Ass’n v. Pacenza (Pacenza I), 2006 OK 23, ¶2, 136 P.3d 616.
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4. The Bar Association’s exhibit 3, filed on August 6, 2002, in the Chief Justice’s Office contains the probationary terms imposed upon Stewart. It provides in pertinent part: “. . . The defendant shall cooperate and comply with the Internal Revenue Service in the compilation and payment of all federal income tax due and owing. . . .” 5. This seems a very large figure considering that Stewart indicated in State ex rel. Oklahoma Bar Ass’n v. Stewart (Stewart I), 2003 OK 13, 71 P.3d 1, that her obligation to the federal government was something less than $20,000.00. Nevertheless, Stewart’s testimony is recorded in the Transcript of Reinstatement Hearing, December 5, 2008, Jami Lynn Steward testifying in pertinent part at pp. 75-76: “. . . Q. Let me just ask, one of the terms set forth in that document was that you were to — ‘The defendant shall cooperate and comply with the Internal Revenue Service in the compilation and payment of all federal income tax due and owing.’ Do you recall how much you owed, besides the 1996 that you didn’t file? A. I know that the amount I filed bankruptcy on was inflated because I couldn’t get the exact amount I owed and I also know included penalty and interest, but it was several hundred — was maybe a couple hundred thousand dollars. Q. Because you hadn’t filed for several years. A. Yes, and I think even the couple hundred thousand included penalty and interest which can increase the debt quite a bit. Q. Right. The amount that you discharged in your 2007 — with the court — the bankruptcy court actually discharged your debt was well over — it was over 500,000 though, correct? A. That’s the amount we put, because we could not get the amount that I owed from the IRS, so we inflated the amounts so that all of the debt would be discharged. . . .” 6. Trial panel report, filed January 30, 2009, see p. 7. 7. Trial panel report, filed January 30, 2009, see pp. 7-8. 8. Application of Gahan, 279 N.W.2d 826, 4 A.L.R.4th 5 (Minn. 1979) [Recognizing that the conduct of a bar applicant in satisfying his financial obligations has been widely recognized as a relevant factor in assessing good moral character.] 9. See also, Matter of the Application of Taylor, 293 Or. 285, 647 P.2d 462 (1982) [Bankruptcy Act did not prohibit examination of circumstances surrounding bankruptcy, as these circumstances illustrate judgment of the applicant for admission to bar in handling serious financial obligations.]. 10. The Oregon Court did leave room for consideration of whether the filing arose from an extraordinary hardship. Matter of the Application for Reinstatement of Gunter, 344 Or. 368, 182 P.3d 187 (2008). Although there is little doubt that Stewart suffered a number of personal crises after she was suspended, at the time the tax obligations were imposed, she was making more than enough to have satisfied her tax obligations. Rather than doing so, she simply did not file and was convicted of the crime of tax evasion. 11. Stewart undoubtedly suffered financial and physical setbacks after suspension. There is no evidence that, at the time she allowed her taxes to become in arrears, she was making insufficient income to have taken care of the lawful obligation to pay the same. 12. Re: G.W.L., 364 So.2d 454 (Fla. 1978). 13. See also, In re Baker & Drake, Inc., 35 F.3d 1348 (9th Cir. 1994) [Bankruptcy Act did not implicitly preempt regulation of Nevada’s regulations concerning financial responsibility in the leasing of taxi cabs. The fact that a particular debtor’s reorganization is made more difficult because of compliance with otherwise valid state regulation was not a sufficient basis to invoke preemption.]; Marshall v. District of Columbia Government, 559 F.2d 726, (D.C.Cir. 1977) [Bankruptcy Act does not prohibit employers from using the fact of bankruptcy in considering whether the past record of a job applicant merits his consideration for employment.]; Detz v. Hoover, 539 F.Supp. 532 (E.D.Penn. 1982) [In deciding whether to hire a policy officer, local governments may properly consider the fact that an applicant who has sought protection under Bankruptcy Act has been unable to manage his financial affairs.]; Wright v. Malloy, 373 F.Supp. 1011 (D.Vt. 1974), affirmed, 419 U.S. 987, 95 S.Ct. 297, 42 L.3d.2d 261 (1974) [Regulation of the license to operate a vehicle did not violate Bankruptcy Act where it was designed for the financial protection of the general public.]; Dabney v. Bay Park One Co., 3 B.R. 719 (E.D.N.Y. 1980) [Fresh start allowed by Bankruptcy Act did not relieve individual of every conceivable disability incurred as a result of bankruptcy or inconvenience encountered while starting over.]; Petition of Rhode Island Bar Ass’n, 118 R.I. 489, 374 A.2d 802 (1977) [Bar member who discharged as a “debt” his association dues was not excused from payment of the licensing fee.]. 14. Rule 11.4, Rules Governing Disciplinary Proceedings, see note 2, supra; Matter of Reinstatement of Fraley, see note 2, supra.
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15. Transcript of Reinstatement Hearing, December 5, 2008, Jami Lynn Stewart testifying at p. 102. 16. Application of Gahan, 279 N.W.2d 826, 4 A.L.R.4th 426 (Minn. 1979). 17. Matter of Reinstatement of Smith, 1994 OK 19, 871 P.2d 426. 18. State ex rel. Oklahoma Bar Ass’n v. Shofner, 2002 OK 84, 60 P.3d 1024. 19. State ex rel. Oklahoma Bar Ass’n v. Horning, 1991 OK 56, 813 P.2d 1041. 20. Matter of Reinstatement of Pacenza (Pacenza II), 2009 OK 9, 204 P.3d 58. 21. Matter of Reinstatement of Hardin, 1996 OK 115, 927 P.2d 545. 22. State ex rel. Oklahoma Bar Ass’n v. Samara, 1984 OK 32, 683 P.2d 979.
2010 OK 67 STATE OF OKLAHOMA, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. GLOYD LYNN McCOY, Respondent. SCBD #5592. September 21, 2010 ORIGINAL PROCEEDING FOR BAR DISCIPLINE ¶0 The complainant, Oklahoma Bar Association, charged the respondent, Gloyd Lynn McCoy (McCoy/attorney), with thirteen counts of professional misconduct ranging from failure to communicate to misuse of client funds to notice of suspension by the United States Court of Appeals for the Tenth Circuit. Upon agreement of the parties, we issued an order of interim suspension pending resolution of the disciplinary action following notification that the attorney had been disbarred by the Tenth Circuit and upon grounds that the respondent alleged throughout prosecution of the cause that he was personally incapable of practicing law. The trial panel recommended that the attorney be disciplined under Rules 6 and 10, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A, and be suspended for two years and one day. The Bar Association agreed with the proposed discipline and filed an application for the imposition of costs. The attorney acknowledged multiple instances of misconduct involving: dishonesty, fraud, deceit, or misrepresentation; incompetence including accepting cases while under a disability; lack of diligence; failure to communicate; mishandling of funds; and the filing of untimely responses to grievance inquiries. In addition, the attorney has been disbarred by the Tenth Circuit. We acknowledge the attorney’s evident medical issues, debilitating depression coupled with an attention deficit disorder, and their contribution to his Vol. 81 — No. 25 — 9/25/2010
actions. Nevertheless, in consideration of the facts and upon de novo review, we determine that the respondent’s conduct resulting in incurable harm to the rights of those he represented, retaining unearned fees, continued representation of clients while alleging his incapacity to do so, causing embarrassment to the legal profession and to this Court, and undermining confidence in the Bar Association and its members warrants suspension for a period of two years and one day and the payment of costs of $4,938.55. RESPONDENT SUSPENDED AND ORDERED TO PAY COSTS OF THE PROCEEDING IN THE AMOUNT OF $4,938.55. Ted D. Rossier, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma for complaint. Charles J. Watts, Oklahoma City, Oklahoma, for respondent. WATT, J.: ¶1 In what was initially a Rule 6 but later converted to a Rule 10,1 Rules Governing Disciplinary Proceedings, 5. O.S. 2001, Ch. 1, App. 1-A proceeding, the complainant, Oklahoma Bar Association, charged the respondent, Gloyd Lynn McCoy (McCoy/attorney), with thirteen counts of professional misconduct ranging from failure to communicate to misuse of client funds and notice of suspension by the United States Court of Appeals for the Tenth Circuit (Tenth Circuit) from accepting CJA appointments2 for a period of one year.3 By agreement of the parties, this Court entered an order of interim suspension pending resolution of the disciplinary action following notification that the attorney had been disbarred by the Tenth Circuit and upon grounds that the respondent alleged throughout prosecution of the cause that he was personally incapable of practicing law. In the course of disciplinary proceedings, the attorney acknowledged4 multiple instances of misconduct involving: dishonesty, fraud, deceit, or misrepresentation; incompetence including accepting cases while under a disability; lack of diligence; failure to communicate; mishandling of funds; and the filing of untimely responses to grievance inquiries. The attorney’s actions resulted in his initial suspension and subsequent disbarment by the United States Court of Appeals for the Tenth Circuit.
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¶2 We are sympathetic with and acknowledge the attorney’s evident debilitating depression coupled with an attention deficit disorder and their contribution to his actions. Nevertheless, our obligation to uphold the grievance system, which exists to protect the public, must come before our compassion for the respondent.5 Therefore, in consideration of the facts and upon de novo review,6 we determine that the respondent’s conduct resulting in incurable harm to the rights of those he represented, retaining of unearned fees, continued representation of clients while alleging his incapacity to do so, causing embarrassment to the legal profession and to this Court, and undermining confidence in the Bar Association and its members warrants suspension for a period of two years and one day and the payment of $4,938.55 in costs.7 RELEVANT FACTS AND PROCEDURAL BACKGROUND ¶3 McCoy was admitted to the practice of law in 1982. Over the years, he distinguished himself in criminal proceedings and was awarded the Thurgood Marshall Award for outstanding appellate advocacy by the Oklahoma Criminal Defense Lawyers’ Association in 2006. ¶4 In February of 2005, the attorney entered a six-month diversion program related to three grievances filed by his clients. The grievances involved conduct similar to that presented here: failure to file an appeal; failure to respond to client inquires; and failure to keep clients advised.8 The Bar Association again began receiving grievances regarding the attorney’s unprofessional performance in March of 2008. The grievances were grounded in representations McCoy undertook from March of 2005 through April of 2008, a span of three years. McCoy did not respond timely to any of the individual grievances and when responses were received they were either incomplete or inadequate. This necessitated that the respondent be deposed on September 30, 2009. The following month, the Bar Association filed a multiple count complaint. ¶5 The hearing before the trial panel was conducted over two days in March of this year. On May 21st, the trial panel issued its report recommending that McCoy be suspended from the practice of law for two years and one day. The same day, the Bar Association filed an application to assess costs of $4,938.55. It also is 2080
in agreement with the proposed discipline, as is the respondent. A briefing schedule was established by our order of May 25, 2010 which was concluded on July 29th with the filing of the reply brief. JURISDICTION AND STANDARD OF REVIEW ¶6 It is this Court’s nondelegable, constitutional responsibility to regulate the both the practice and the ethics, licensure, and discipline of the practitioners of the law. The duty is vested solely in this department of government.9 Our determinations are made de novo.10 We bear the ultimate responsibility for deciding whether misconduct has occurred and, if so, what discipline is warranted. Neither the finding of facts of the trial panel nor its view of the evidence or the credibility of witnesses bind this Court. The recommendation is merely advisory.11 The same is true when the parties stipulate to misconduct and a recommendation for discipline.12 Before this Court will discipline an errant attorney, misconduct must be demonstrated by clear and convincing evidence.13 To make this determination, we must be presented with a record sufficient to permit an independent, on-the-record review for the crafting of appropriate discipline.14 The record submitted is sufficient for this Court to make the required decisions. COUNTS DEMONSTRATING PROFESSIONAL MISCONDUCT15 Count I — Woods/Law ¶7 McCoy stipulated to the following facts. The respondent was hired by Judy Wood (Wood) to appeal her grandson’s, Karame Law’s, conviction and sentence of life imprisonment. In December of 2006, after the conviction was affirmed, Wood retained the respondent to pursue federal habeas corpus relief for which he was paid $3,000.00. McCoy did not file the application, did not refund the unearned fee, and cut communications with Wood. Over two years later, in March of 2008, Woods was informed that McCoy was no longer employed with his firm. Later that month, she filed a grievance with the Bar Association. In May of 2008, the respondent promised to refund the entire fee within thirty (30) days. He did not do so. The respondent acknowledged his actions violated Rules 1.1, 1.3, 1.4, 1.5, 1.15(a), 1.16(a) and 8.4(a)(c)(d), Rules Governing Professional Conduct, 5 O.S. Supp. 2008, Ch. 1, App. 3-A; Rule 1.3, Rules Governing Disciplinary Pro-
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ceedings, 5 O.S. 2001, Ch. 1, App. 1-A; and warrant imposition of professional discipline. ¶8 Woods testified that only after numerous attempts to contact McCoy was she informed that he no longer worked at the Riggs, Abney firm. Thereafter, Woods made multiple attempts to reach the attorney at his home. Although McCoy never returned any of her calls, he did finally respond to an e-mail sent to him by one of Woods’ nieces. In his response to the grievance, he asserted that he had not promised to file for habeas corpus relief but had suggested that as an option. He also indicated that he would be refunding Woods’ $3,000.00 within thirty (30) days. Although McCoy provided Woods with some of Law’s files, she did not receive a complete set of trial transcripts and the respondent did not forward her the promised $3,000.00 despite his recognition that the funds would be important to her as Woods lives on a fixed income.16 Count III — Stec/Simrak ¶9 The attorney stipulated that in March of 2005,17 he accepted a fee of $500.00 from Vera Stec (Stec) to research possible post-conviction relief for her nephew, Joseph Simrak. Although McCoy retained the fee, he did not perform the promised work and he did not communicate either with Stec or Simrak. He acknowledges that this conduct violated Rules 1.1, 1.3, 1.4, 1.5, 1.15(a), and 8.4(a)(c)(d), Rules of Professional Conduct, 5 O.S. Supp. 2008, Ch. 1, App. 3-A; and Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 5 O.S. 2001, Ch. 1, App. 1-A. ¶10 Although the respondent spoke with Stec on the phone a month after he was hired, all subsequent attempts to contact McCoy by phone were unsuccessful. In November of 2008, Stec filed the complaint with the Bar Association. At some point subsequent thereto, the respondent indicated either to the Bar Association or to Stec that he would be refunding her $500.00 within a two-week period. This did not occur and had not occurred at the time of the hearing before the trial panel. In addition, Stec was convinced that the respondent’s failure to act robbed her nephew of any subsequent right to request relief and violated her trust in the legal profession.18 Count V — Baker ¶11 McCoy admits that after Aaron Baker’s felony conviction was affirmed on appeal in Vol. 81 — No. 25 — 9/25/2010
February of 2007, Baker requested that he pursue post-conviction relief in the United States District Court for the Northern District of Oklahoma no later than the following January. After May of 2007, the respondent did not communicate with his client. Baker filed his initial grievance on July 21, 2008. Thereafter, the attorney met with Baker on or about October 1st. At that meeting, McCoy told Baker that: a) he had not filed a federal habeas corpus petition; b) he believed Baker might benefit from an application for post-conviction relief in the state courts; and c) he would meet with Baker every Wednesday until the post-conviction application was complete. McCoy recognizes that his conduct constituted professional misconduct in violation of Rules 1.1, 1.3, 1.4, 1.5, 1.15(a), 1.16(a), and 8.4(a)(c)(d), Rules of Professional Conduct, 5 O.S. 2001 Supp. 2008, Ch. 1, App. 3-A and Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. ¶12 Green testified before the trial panel that his father paid McCoy approximately $2,000.00 to appeal his cause and to file for habeas corpus relief upon the affirmance of his conviction. When Baker could not get McCoy to communicate with him regarding his case, he contacted the federal court and determined that no habeas corpus petition was ever filed. Baker went seventeen (17) months without having any contact with McCoy and believes that the statute of limitations has run on any opportunity for the filing of habeas corpus relief in the federal forum.19 COUNT VII — Thelen ¶13 Patrick Thelen is currently incarcerated in a federal correctional facility in Illinois. McCoy admits that Thelen retained him to pursue post-conviction relief relating to an Oklahoma conviction, paying him $3,000.00 in April of 2008. When the work was not completed, Thelen first hired alternate counsel and then proceeded pro se. Although the attorney asserts that Thelen agreed to withdraw his grievance if McCoy would refund the $3,000.00, Thelen denies the same. In any case, although the respondent promised to refund the unearned fee, he has not done so. McCoy admits his actions constitute professional misconduct in violation of Rules 1.1, 1.3, 1.4, 1.5, 1.15(a), 1.16(a), and 8.4(a)(c)(d), Rules or Professional Conduct, 5 O.S. Supp. 2008, Ch. 1, App. 3-A and Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A.
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¶14 Thelen testified that McCoy did nothing in his case and that, because of his lies, he did not feel he could believe anything the respondent told him.20 He also denied that he had agreed to withdraw his grievance if his money was returned.21 COUNT XI — Burling ¶15 The respondent acknowledges that he was hired by Robert Burling (Burling) on February 21, 2008, to undertake an independent review of his case and develop a strategy for post-conviction relief. He also admits to having received $3,000.00 from Burling to do the legal work. ¶16 Burling testified that McCoy never did the work, did not provide any copies of drafted proposals, seemed unprepared when he would meet with him at the facility where Burling was incarcerated, missed the date for filing a rehearing petition on his affirmed conviction, and failed to appear for a number of scheduled interviews.22 Burling hired another attorney to assist with the filing of his habeas corpus petition.23 COUNT X — Richardson/Ingraham ¶17 Betty Richardson (Richardson) retained McCoy in April of 2008 to file federal habeas and post conviction relief on behalf of her nephew, John Sandy Ingraham (Ingraham). Although neither of these individuals testified before the trial panel, the respondent stipulated to the hiring and to his having been paid $5,000.00. He admits that he: did not file any application for relief and allowed the limitation period to run on Ingraham’s right to file a federal habeas petition; never spoke with Ingraham; and did not return phone calls or respond to letters. McCoy alleges that he has made a partial refund of the fee in the amount of $1,440.00. McCoy agrees that his actions constitute professional misconduct in violation of Rules 1.1, 1.3, 1.4, 1.5, 1.15(a), 1.16 (a) and 8.4(a)(c)(d), Rules of Professional Conduct, 5 O.S. Supp. 2008, Ch. 1, App. 3-A, and Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. COUNT XII — Green ¶18 The respondent agrees that Stephen Green (Green) hired him to file a motion in federal court and paid him $3,000.00 for his services. When the motion was denied, McCoy filed a notice of appeal with the Tenth Circuit. Thereafter, he did not communicate with his client. The attorney allowed Green’s appeal to 2082
be dismissed for failure to prosecute. McCoy admits his conduct contradicts that required of attorneys by Rules 1.1, 1.3, 1.4, 1.5, 1.15(a), and 8.4(a)(c)(d), Rules Governing Professional Conduct, 5 O.S. Supp. 2008, Ch. 1, App. 3-A, and Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. ¶19 Green disputes the fee paid to McCoy. Although the respondent alleges that he was paid $3,000, Green testified that he paid him $5,000.00 from his checking account.24 A friend of Green’s, who handled his finances during Green’s incarceration, believes that McCoy was given at least $9,000.00, some of which he received in cash.25 COUNT XII — Tenth Circuit suspension from accepting CJA Appointments ¶20 McCoy acknowledges that he was appointed by the Tenth Circuit under the CJA26 to represent a criminal defendant. The respondent was successful in getting the defendant’s sentence reduced and filed an appeal of his conviction. On July 7, 2006, the Tenth Circuit clerk issued an order directing the respondent to perfect the appeal. When McCoy did not comply, a subsequent order was issued instructing him to comply no later than August 11, 2006. The respondent complied some thirteen days later than the ordered date. McCoy did not file an opening brief on the due date of February 27, 2007, nor did he request an extension. On March 5, 2007, the clerk issued an order regarding the missed deadline, a warning of possible disciplinary action, and gave McCoy until March 15th to file the brief. On that date, the respondent requested an extension and was granted until April 18th. He did not then file the brief nor did he request an extension. The clerk sent McCoy another order on April 25, 2007 giving him two options: the first was to file the brief by May 9th and seek leave for the late filing; and the second was to show cause why he should not be referred to a disciplinary panel. ¶21 On May 9, 2007, McCoy electronically filed a document he calls a “show cause response.” A hard copy was filed approximately a week later. Asserting that he was suffering from a medical condition, the respondent requested an extension to May 21st to file an opening brief. The respondent admits that the document he attempted to file on May 21st was defective in several respects. Although he was given until June 8, 2007 to correct those errors,
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McCoy did not do so nor did he file anything further in the cause. ¶22 An order issued on July 2nd, advising McCoy he was being referred to a disciplinary panel for negligence and failure to follow orders of the court. He was again directed to file a corrected brief by July 9, 2007. Instead, on the following day, he requested an extension although he had been advised no further delays would be allowed. McCoy did not file a corrected brief and was suspended from accepting CJA appointments for a year. The attorney acknowledges that his conduct constitutes professional misconduct in violation of Rules 1.1, 1.3, 1.16(a), 3.2, and 8.4(a)(c)(d), Rules of Professional Conduct, 5 O.S. Supp. 2008, Ch. 1, App. 1-A, and Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 3-A. COUNTS II, IV, VI, VIII, XI — Failure to properly and adequately respond to the General Counsel regarding multiple grievances. ¶23 McCoy admits that he did not respond timely or adequately to the Woods, Stec, Baker, Thelen, and Richardson grievances although the Bar Association gave him liberal extensions and multiple opportunities before finally noticing him for a deposition. In some instances, the responses he gave did not coincide with the testimony elicited from his clients before the trial panel in relation to the return of files and promises to refund unearned fees. The respondent acknowledged that his conduct violated Rules 8.1(b) and 8.4(a)(c), Rules of Professional Conduct, 5 O.S. Supp. 2008, Ch. 1, App. 3-A and Rules 1.3 and 5.2, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. ¶24 Rule 8.1 provides that a lawyer shall not knowingly make a false statement of material fact nor fail to respond to a lawful demand for information from a disciplinary authority. Under Rule 1.3, the commission of an attorney of any act contrary to prescribed standards of conduct is grounds for discipline. Violation of this rule brings discredit on the legal profession.27 The provisions of Rule 8.4 pertinent here define professional misconduct as the violation of the professional rules and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Rule 5.2 allows an attorney faced with a grievance twenty (20) days to file a written response containing a full and fair Vol. 81 — No. 25 — 9/25/2010
disclosure of all the facts and circumstances pertaining to the respondent’s alleged misconduct. MITIGATION AND ENHANCEMENT ¶25 Mitigating circumstances may be considered in the process of assessing the appropriate quantum of discipline.28 When mental or physical conditions are presented as mitigating factors for assessment of one’s culpability, there must be a causal relationship between the conditions and the professional misconduct.29 Though emotional, psychological, or physical disability may serve to reduce the actors ethical culpability, it will not immunize one from imposition of disciplinary measures that are necessary to protect the public.30 ¶26 McCoy presented medical proof from both his general practitioner and his psychiatrist that he suffers from various physical ailments along with depression and attention deficit disorder present now and during the time of the misconduct. Both physicians opine that the attorney is presently incapable of practicing law because of his physical and mental condition. ¶27 The McCoys have three children, all of whom require unusual levels of parental supervision or involvement. Their adult son suffers from autism and epilepsy making it difficult for him to hold a job and requiring constant monitoring. Their two daughters were adopted from Guatemala and have their own special needs. ¶28 Following a ten-year association with the Coyle law firm, the attorney was terminated in 2003. The ending of this professional arrangement created a financial strain. For two years, McCoy operated as a solo practitioner. In 2005, he was hired by Riggs, Abney, Neal, Turpen, Orbison and Lewis at what he considered a salary not commensurate with his twenty-five years of experience. McCoy’s employment ended in January of 2008 when the attorney was approached by a member of the firm during trial and told his services were no longer needed. ¶29 Approximately eight months after leaving the second firm and having moved his practice into his home, the respondent’s wife was admitted to the hospital and diagnosed with sepsis. Although she survived, she was left in a debilitated state and required subsequent medical treatment for an eye problem
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exacerbated by her diabetes. From January 2008 until February of the next year, the respondent was the primary care giver for his wife and children. He was faced with large medical bills for which there was no insurance coverage. ¶30 In February of 2009, McCoy undertook the criminal representation of a client in Tulsa. Although he expected this relationship to provide his family with financial relief, it did not do so. Rather, it created additional financial difficulties and emotional strain. His commuting vehicle became disabled and he was required to spend increasing time away from home. ¶31 Although neither McCoy’s psychiatrist nor his physician testified before the trial panel concerning his mental and physical condition, the record leaves little doubt that McCoy suffers from depression, attention deficit disorder, some degree of limb tremor, and back pain associated with degenerative disc disease.31 However, McCoy’s pleas for mercy are counterbalanced by what appear to be a failure to recognize the gravity of his transgressions and an inability to take responsibility for his actions. ¶32 The respondent blames his lack of performance on a variety of factors: his physical and mental condition; his former law firm and assistant and the lack of support he received therefrom; his deep involvement in federal criminal proceedings; a “jail house lawyer” who encouraged complaints be filed against him; and his lack of a legal assistant during the time periods when the grievances were being filed. He accuses the Bar Association of attempting to make two charges out of one with the inclusion of multiple counts relating to his failure to respond and argues these transgressions were somehow “cured” by his appearance for a deposition made necessary by his lack of cooperation.32 Although McCoy stipulated to acts of misconduct in the pretrial order,33 he denied that his acts constituted misconduct because they were not intended to cause harm.34 While on the one hand, McCoy asserts that he was incapable of the practice of law during the period in which any misconduct occurred, he insists that, during his “period of problems,” he was able to provide a “vigorous defense” for a client during a two-week federal jury trial35 and initially asserted that any suspension which might be imposed should be stayed36 and the cause should be remanded for McCoy to enter a diversion program.37 With the filing 2084
of his answer brief, the respondent conceded that a two year and one day suspension would be appropriate. ¶33 A number of the arguments on which McCoy relies are unconvincing. A lawyer’s failure to respond to the Bar Association’s investigative inquires is a serious offense.38 The attorney’s inaction in not responding to the grievances in a timely manner caused the Bar to utilize greater resources in time and money and created a substantial delay in addressing the complaints of his clients who had already suffered from the respondent’s procrastination.39 ¶34 In State ex rel. Oklahoma Bar Ass’n v. Briggs, 1999 OK 76, ¶22, 990 P.2d 869, we admonished the attorney for his failure to respond in a timely manner to the Bar Association’s requests for information. In so doing, we issued this warning: “. . . Let this serve as a reminder to attorneys that failure to timely respond to the Bar’s request for information is in itself grounds for discipline. . . .”40 [Emphasis in original.] Furthermore, it is not an anomaly that this cause should present multiple counts based on the failure to respond. Separate counts for such action have routinely been considered by this Court.41 Furthermore, an attorney’s misconduct need not be intended to harm for discipline to result.42 Finally, we are unconvinced that entry into a diversion program would be sufficient to deter the attorney from similar actions. He was previously given that opportunity after the filing of three grievances.43 Although one of the conditions of the agreement was that the respondent continue receiving counseling with his psychiatrist weekly for a period of at least five-and-one half months, participation in the program did nothing to deter his actions here. It is instructive that one of the grievances filed originated from a cause undertaken during the same time period in which McCoy was participating in the program.44 ¶35 RESPONDENT’S MISCONDUCT WARRANTS SUSPENSION FOR A PERIOD OF TWO YEARS AND ONE DAY AND THE PAYMENT OF COSTS OF THE PROCEEDING. ¶36 Discipline is administered to preserve public confidence in the bar. Our responsibility is not to punish but to inquire into and gauge a lawyer’s continued fitness to practice law, with
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a view to safeguarding the interest of the public, of the courts, and of the legal profession. Discipline is imposed to maintain these goals rather than as a punishment for the lawyer’s misconduct.45 Disciplinary action is also administered to deter the attorney from similar future conduct and to act as a restraining vehicle on others who might consider committing similar acts.46 Discipline is fashioned to coincide with the restrictions imposed upon other lawyers for acts of professional misconduct.47 Although this Court strives to be even-handed and fair in disciplinary matters, discipline must be decided on a case-by-case basis because each situation involves unique transgressions and mitigating factors.48 ¶37 Similar causes where impairment was not an issue have resulted in discipline ranging from public censure to disbarment.49 In instances involving attorneys determined to be incapable of practicing law, the breadth of discipline has been from public censure to suspensions of two years and one day.50 Such suspensions are tantamount to disbarment in that the suspended lawyer must follow the same procedures for readmittance as would a disbarred attorney.51 ¶38 In considering the appropriate discipline to visit on McCoy here, we find two cases particularly instructive: State ex rel. Oklahoma Bar Ass’n v. Wright, 1997 OK 119, 957 P.2d 1174 and State ex rel. Oklahoma Bar Ass’n v. Beasley, 2006 OK 49, 142 P.3d 410. In both cases, the attorney was suspended from the practice of law for two years and one day. In addition, both attorneys committed acts of misconduct similar to those McCoy has admitted to here while afflicted with some level of disabling condition. ¶39 In Wright, the attorney was charged with nine counts of misconduct involving estate matters, including failing to act with reasonable diligence and promptness, failing to communicate with clients, charging unreasonable fees, and failing to respond to repeated requests for information regarding allegations and grievances filed with the Bar Association. The discipline imposed took into account the attorney’s evidence of depression. ¶40 The attorney in Beasley failed to perform legal services for clients, failed to communicate with clients, and failed to respond to Bar Association inquiries. His actions were found to have violated professional conduct rules requirVol. 81 — No. 25 — 9/25/2010
ing competent representation, diligence and promptness, adequate communication with clients, refund to clients of unearned fees, and responding to disciplinary investigations. In addition, the attorney violated the rule prohibiting lawyers form engaging in conduct involving dishonesty, fraud, deceit, or misrepresentations and rules governing disciplinary proceedings. In Beasley, we took into account the fact that the evidence supported a finding that the attorney’s professional misconduct stemmed from spiraling personal problems and his addiction to alcohol. ¶41 The trial panel determined that McCoy was incapable of practicing law as defined under Rule 10, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. It recommended a suspension of two years and one day. The Bar Association joins in the disciplinary recommendation. As discussed previously, the Tenth Circuit disbarred the respondent for conduct remarkably similar to the counts presented here, i.e. failure to timely file an appeal in a criminal proceeding or to respond to an order of that court regarding the imposition of discipline. On June 1, 2010, we entered an agreed order of interim suspension based upon the disbarment in the Tenth Circuit and upon the attorney’s contentions that he was personally incapable of practicing law under Rule 10.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. It is noteworthy that even in agreeing to the suspension, the attorney appeared to contend that he was able to provide some level of competent representation to his clients as McCoy sought that the suspension order contain exceptions for him to file a petition in error in one cause and to obtain new counsel in three pending causes. ¶42 We agree with the recommendation of the trial panel, the Bar Association, and the respondent. Suspension for two years and one day is consistent with discipline imposed upon other lawyers committing similar conduct. McCoy can utilize this time period to address his mental and physical disabilities and ensure that he is capable of the ethical practice of law before seeking reinstatement under Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A. In addition, discipline having been imposed, the respondent stands charged with the payment of costs in the proceeding of $4,938.55.52
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¶43 We cannot accede to McCoy’s request that the suspension be retroactive to the date the order of interim suspension entered. We are impressed by McCoy’s repayment of in excess of $15,000.00 in unearned fees. Nevertheless, it does not appear that all clients have been made whole. More worrisome, is the fact that the respondent may have misrepresented the status of his case before the Tenth Circuit regarding his federal disbarment.53 Ultimately, however, our decision not to apply the suspension retroactively rests on McCoy’s failure to comply with all provisions of the interim suspension order filed on June 1, 2010.54 CONCLUSION ¶44 Clear and convincing evidence exists demonstrating that McCoy violated multiple rules of professional conduct and disciplinary rules by which each member of the Bar Association is bound.55 We conclude that the respondent’s professional misconduct warrants a suspension of his license to practice law of two years and one day and the imposition of costs. As a precondition to reinstatement, McCoy shall: comply with Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A; demonstrate that he no longer suffers from mental and physical conditions rendering him incapable of the practice of law; refund the unearned fees described in the disciplinary counts through payment either to clients or to the Client Security Fund if restitution has been made on his behalf; and pay costs of these proceedings in the amount of $4,938.55. RESPONDENT SUSPENDED AND ORDERED TO PAY COSTS OF THE PROCEEDING IN THE AMOUNT OF $4,938.55. Edmondson, C.J., Taylor, V.C.J., Hargrave, Kauger, Watt, Winchester, Colbert, Reif, JJ., concur. Opala, J., dissenting in part I would disbar the respondent. 1. Report of the Trial Panel, filed May 21, 2010, p. 8. Rule 10, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 3-A [Suspension for personal incapacity to practice law.]. 2. The Criminal Justice Act of 1964 (CJA/Act), 18 U.S.C. 2008 §3006A, entitled indigent defendants charged with certain federal offenses to appointed counsel. The CJA carries both a statutory and a constitutional mandate under the Sixth Amendment to the United States Constitution. United States v. Barcelon, 833 F.2d 894, 896 (10th Cir. 1987); Anaya v. Baker, 427 F.2d 73 (10th Cir. 1970). The CJA contemplates that a substantial proportion of the appointments made under the Act will be to private attorneys who accept the court’s appointment. 18 U.S.C. 2008 §3006A(a)(3). The CJA governs payment to attor-
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neys accepting such appointments. 18 U.S.C. 2008 §3006A(d). At the conclusion of representation, the appointed attorney may seek compensation by filing a claim. 18 U.S.C. 2008 §3006A(d)(5). 3. The allegations of the complaint encompass violations of the Rules of Professional Conduct, 5 O.S. Supp. 2008, Ch. 1, App. 3-A, specifically: Rule 1.1 [Competent representation, legal knowledge, skill, thoroughness, and reasonable preparation.]; Rule 1.3 [Diligence and promptness in representation.]; Rule 1.4 [Reasonable consultation with and prompt reply to client inquires.]; Rule 1.5 [Reasonable fees.]; Rule 1.15 [Safekeeping of property.]; Rule 1.16 [Declining or withdrawing from representation upon occurrence of mental or physical condition altering the lawyer’s ability to represent the client.]; Rule 8.1 [Failure to disclose facts necessary to correct misapprehension and to respond to a lawful demand for information.]; and Rule 8.4 [Violation of Rules of Professional Conduct, engaging in conduct involving dishonesty, fraud, or misrepresentation.]. The allegations of violation of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A, alleged are: Rule 1.3 [Commission of act contrary to prescribed standards of conduct.]; and Rule 5.2 [Failure to respond timely, fully, and fairly to grievance inquires.]. The Bar Association has received three additional grievances filed against the attorney subsequent to commencement of the instant disciplinary proceedings. 4. See, Pretrial Order, filed March 19, 2010, setting forth agreed stipulations. This Court is not bound by the stipulations of parties in a bar disciplinary proceeding. State ex rel. Oklahoma Bar Ass’n v. Combs, 2008 OK 96,¶11, 202 P.3d 830; State ex rel. Oklahoma Bar Ass’n v. Besley, 2006 OK 18, ¶2, 136 P.3d 590; State ex rel. Oklahoma Bar Ass’n v. Taylor, 2003 OK 56, ¶2, 71 P.3d 8. 5. State ex rel. Oklahoma Bar Ass’n v. Spadafora, 1998 OK 28, ¶33, 957 P.2d 114. 6. State ex rel. Oklahoma Bar Ass’n v. Pacenza, 2006 OK 23, ¶2, 136 P.3d 616; State ex rel. Oklahoma Bar Ass’n v. Garrett, 2005 OK 91, ¶17, 127 P.3d 600; State ex rel. Oklahoma Bar Ass’n v. Anderson, 2005 OK 9, ¶15, 109 P.3d 326. 7. Rule 6.16, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A 8. Deposition of Gloyd L. McCoy, taken on September 30, 2009 providing in pertinent part at pp. 93-94: “. . . Q . . . Now, we talked earlier in the deposition about your participation in the diversion program about five years. I’m going to hand you this document here. This is shown as DIVERSION PROGRAM AGREEMENT and it will be Exhibit 26. I would like you to review that and tell me whether or not that is the agreement that you signed with the bar association in February of 2005. A It appears to be the document I signed with them. Q All right. Can you give me a brief explanation as to the circumstances surrounding your entering into this agreement? A I’d had some complaints one the bar association was concerned about because it came from a — an inmate — I thought the inmate had said not to appeal the case and he said he did not and had written — he was a very threatening individual and he wrote the bar association a letter that said he was going to sue me and the bar association and everybody else and they were concerned about my safety, so they called me in and I’d had some complaints about not responding to people and failure to make phone calls and that type of thing, not keeping them advised of the case. That’s when I first went out by myself. . . .” Exhibit 20, Diversion Program Agreement with Gloyd Lynn McCoy, provides that the grievances involved will be held in abeyance for a period of six (6) months and that if all conditions of the agreement are met, the grievances will be dismissed and no other discipline will be imposed. McCoy signed the agreement on February 5, 2005. Therefore, the conditions of the agreement would have expired on August 5, 2005. 9. Title 5 O.S. 2001 §13; State ex rel. Oklahoma Bar Ass’n v. Combs, see note 4, supra; State ex rel. Oklahoma Bar Ass’n v. Farrant, 1994 OK 13, ¶13, 867 P.2d 1279; Tweedy v. Oklahoma Bar Ass’n, 1981 OK 12, ¶14, 624 P.2d 1049. 10. State ex rel. Oklahoma Bar Ass’n v. Pacenza, see note 6, supra; State ex rel. Oklahoma Bar Ass’n v. Garrett, see note 6, supra; State ex rel. Oklahoma Bar Ass’n v. Anderson, see note 6, supra. 11. Rule 6.15, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass’n v. Besly, see note 4, supra; State ex rel. Oklahoma Bar Ass’n v. Taylor, see note 4, supra. 12. State ex rel. Oklahoma Bar Ass’n v. Combs, see note 4, supra; State ex rel. Oklahoma Bar Ass’n v. Taylor, see note 4, supra; State ex rel. Oklahoma Bar Ass’n v. McGee, 2002 OK 32, ¶20, 48 P.3d 787. 13. Rule 6.12, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass’n v. Funk, 2005 OK 26, 114 P.3d 427; State ex rel. Oklahoma Bar Ass’n v. Kessler, 1995 OK 32, ¶23, 895 P.2d 713.
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14. State ex rel. Oklahoma Bar Ass’n v. Schraeder, see note 29, infra; State ex rel. Oklahoma Bar Ass’n v. Perceful, 1990 OK 72, ¶5, 796 P.2d 627. 15. It should be noted that McCoy stipulated to each of the facts contained in ¶s 7, 9, 11, 13, 15, 17, 18, 20-22, and 23. 16. Transcript of hearing before the trial panel, March 23, 2010, Judy Diane Woods responding to cross-examination and testifying in pertinent part at p. 64: “. . . Q Okay. Do you see where he states ‘My intent was to return their money. That is now my intention as it seems obvious that Riggs Abney does not want the case.’ A Yes. Q Okay. ‘Therefore, I plan on returning $3,000 to Mrs. Woods.’ A Yes. Q And then he goes on and says, ‘She is on a fixed income and does not need to to pay for a meritless post-conviction application.’ A Yes. . . .” 17. The representation was undertaken while the respondent was involved in a Diversion Program aimed at eliminating similar problems with McCoy’s representation of clients. See note 8, supra. 18. Transcript of hearing before the trial panel, March 23, 2010, Vera Stec testifying in pertinent part at: pp. 82-83 “. . . Q (By Ms. Ogden) Okay. Ms. Stec, in that exhibit, Mr. McCoy said that you would be receiving a refund of $500 by June 5th, 2009. Did that ever happen? A No. No, that never happened. . . .” pp. 84-86 “. . . Q (By Ms. Ogden) Ms. Stec, to this date, have you received a money order or any other payment from Mr. McCoy? A No. No, I’ve had no contact, other than what we just said from Mr. McCoy. Q Okay. Did Mr. McCoy, aside from that I’ll look into it, did he contact you any further regarding the status of your case A No. . . . No, not in any way, shape or form and I am heartbroken about that, because I wanted to get an appeal in before my nephew’s appeal time was over and I’m afraid I didn’t accomplish that and I feel bad because — the man is in jail. . . . Q (By Ms. Ogden) And, Ms. Stec, how do you feel about this right now? A Well, I’m — I’m — I’m very sad and very — I just — it’s just a crying shame that he couldn’t at least have contacted — given me over to another attorney or something that — that my goal could have been accomplished, at least an appeal made on behalf of my nephew, something, for you know, the time and effort that I trusted him and he broke my trust totally. You think you can — you know, you trust people who are in those positions. . . .” 19. Transcript of hearing before the trial panel, March 23, 2010, Aaron Drew Baker testifying in pertinent part at pp. 137-38: “. . . Q So approximately 17 months elapsed between times that he spoke with you regarding your case? A Yes. Yes. Q What’s the current status of your case right now? Is your - do you have any further ability to file a federal habeas petition? A No. I’m of the understanding that my time period for filing my habeas corpus had expired upon trying to get ahold of Mr. McCoy, so I’m assuming that all my deadlines have expired. . . .” 20. Transcript of hearing before the trial panel, March 23, 2010, Patrick Thelen testifying in pertinent part at pp. 192-93: “. . . Q Did Mr. McCoy do what you asked him to do? A No. Mr. McCoy did — to the contrary, he did nothing. Absolutely nothing. He lied to me. He told me he was working on it and it was just one thing after another and he put it in the mail, he put it in the mail and I didn’t get it. Call me back next week and then just one big spin after another. Q Did Mr. McCoy ever provide you with any work product or work that he had done of any kind of documentation? A No. No. . . .” 21. Transcript of hearing before the trial panel, March 23, 2010, Patrick Thelen testifying in pertinent part at pp. 196-97: “. . . Q Mr. Thelen, did you ever offer to withdraw your grievance in return for Mr. McCoy’s paying back the fee that he did not earn? A No. The only — the only conversation McCoy — about something even close to that was he was going to attempt via the emails with my brother or something to try to get back some of the money. My brother, you know, I guess you guys see the emails, but as far as him paying me back, it — you know, I don’t recall anything to the effect that — dropping a grievance or anything to that. I think at that point, we really weren’t even talking
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anymore, because I just had enough. You couldn’t believe nothing he said, so what’s the point in talking? Q And he has not paid back the fee to you, has he? A No. No. I mean, if I may add something here, even if — he didn’t tell me that I don’t have a case, but for the sake of argument, if he would have, then all he had to do was give me back my money and I could have went elsewhere, but, you know, he didn’t do either of those. . . .” 22. Transcript of hearing before the trial panel, March 23, 2010, Robert Burling testifying in pertinent part at pp. 161-65: “. . . Did Mr. McCoy perform the work for which you paid him? A No, he sure did not. Q Did he ever provide you with any work that he had done? A No written work. We had, I believe, four meetings after that first meeting and most of the time — let’s see, four of those — three of those four meetings were when [sic] Mr. Welch primarily and he would call me and sit with me after that, and he never seemed to be prepared. . . . Q (By Mr. Rossier) Mr. Burling, how would you characterize Mr. McCoy’s communication with you? . . . A . . . After my direct appeal was affirmed on May 1st, I had my nephew call Mr. McCoy and told him about the affirmation of my appeal and he appeared unscheduled on May 8th 2008, by him - and this is the only meeting I ever had by myself. . . . [H]e stayed only 15 minutes and this is where he told me he would review my summary opinion to see if we would have a rehearing, which is due 20 days later, which would have been May 20th. And he verbally scheduled a meeting for May 14th to discuss the rehearing which would have been due six days later. On May 14th, he failed to show and my rehearing deadline passed on May 20th and from that meeting of May 8th, all the way up to October 1st, he scheduled meetings and never showed again. I believe eight more - a total of eight more meetings that he failed to show. . . .” 23. Transcript of hearing before the trial panel, March 23, 2010, Robert Burling testifying in pertinent part at p. 163: “. . . Q Did you then file a federal habeas petition pro se? A Well, I filed a — I hired an attorney named Jim McClure, Muskogee, Oklahoma, and we filed in the Western District of Oklahoma City District Court on February 22, 2010, just recently. . . .” 24. Transcript of hearing before the trial panel, March 23, 2010, Stephen Randall Green testifying in pertinent part at p. 103: “. . . Q All right. How much did you pay Mr. McCoy? . . . A $5,000. . . .” 25. Transcript of hearing before the trial panel, March 23, 2010, Greg Nieto testifying in pertinent part at pp. 512-13: “. . . Q (By Mr. Rossier) Once again, the question was how much total money do you believe you paid to Mr. McCoy on Mr. Green’s behalf? A Just going back in an estimate, I was calculating, I think around $9,000 all total. Q And how was that paid to Mr. McCoy? Was it paid in cash? A Initially, there were a couple of checks from other sources from other friends and then after that, it was cash, yes, sir. And then the final payment was actually a cashier’s check in regards to a final appeal and that was directly from Mr. Green’s bank. . . .” 26. See note 2, supra. 27. State ex rel. Oklahoma Bar Ass’n v. Chapman, 2005 OK 16, ¶11, 114 P.3d 414. 28. State ex rel. Oklahoma Bar Ass’n v. Schraeder, see note 29, infra; State ex rel. Oklahoma Bar Ass’n v. Colston, 1989 OK 74, ¶20, 777 P.2d 920; State ex rel. Oklahoma Bar Ass’n v. Raskin, 1982 OK 39, ¶17, 642 P.2d 262. 29. State ex rel. Oklahoma Bar Ass’n v. Schraeder, 2002 OK 51, ¶27, 51 P.3d 570; State ex rel. Oklahoma Bar Ass’n v. Giger, 2001 OK 96, ¶15, 37 P.3d 856. 30. State ex rel. Oklahoma Bar Ass’n v. Schraeder, see note 29, supra. 31. See, Defendant’s exhibit 8, a letter dated March 12, 2010 authored by Dr. Vicki White, indicating that McCoy suffers from attention deficit disorder and major depressive disorder and Defendant’s exhibit 9, a letter written by Stephen G. Lindsey, M.D., detailing the respondent’s physical and mental status. Both doctors opine that the attorney is currently unable to practice law. 32. See, Gloyd Lynn McCoy’s Answer to Complaint filed on December 30, 2009. 33. See, ¶1 and note 4, supra. 34. See, Gloyd Lynn McCoy’s Answer to Complaint filed on December 30, 2009. 35. Trial Brief of Respondent Gloyd Lynn McCoy, filed March 5, 2010, providing in pertinent part at pp. 9-10:
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“ . . . During Mr. McCoy’s period of problems, he was able to conduct a two-week federal jury trial in the United States District Court for the Northern District of Oklahoma before the Honorable Claire Egan. Although the jury found the client guilty, Mr. McCoy put up a vigorous defense for his client. . . .” 36. Trial Brief of Respondent Gloyd Lynn McCoy, filed March 5, 2010, providing in pertinent part at p. 11: “. . . Any suspension should be stayed. . . .” 37. Trial Brief of Respondent Gloyd Lynn McCoy, filed March 5, 2010, providing in pertinent part at p. 15: “. . . Remanding this matter back to the OBA for the purpose of requiring Mr. McCoy to enter a diversion program would be appropriate. . . .” 38. State ex rel. Oklahoma Bar Ass’n v. Schraeder, see note 29, supra; State ex rel. Oklahoma Bar Ass’n v. Robb, see note 41, infra. 39. State ex rel. Oklahoma Bar Ass’n, 2008 OK 38, ¶20, 183 P.3d 1014. 40. Rule 5.2, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A providing in pertinent part: “. . . The failure of a lawyer to answer within twenty (20) days after service of the grievance (or recital of facts or allegations), or such further time as may be granted by the General Counsel, shall be grounds for discipline. . . .” 41. See, State ex rel. Oklahoma Bar Ass’n v. Sheridan, 2003 OK 80, 84 P.3d 710; State ex rel. Oklahoma Bar Ass’n v. Schraeder, see note 29, supra; State ex rel. Oklahoma Bar Ass’n v. Brewer, 1999 OK 101, 998 P.2d 605; State ex rel. Oklahoma Bar Ass’n v. Robb, 1997 OK 84, 942 P.2d 196. 42. See, State ex rel. Oklahoma Bar Ass’n v. Giessman, 1997 OK 146, ¶9, 948 P.2d 1227. 43. Deposition of Gloyd L. McCoy, September 30, 2009, providing in pertinent part at pp. 93-94: “. . . Q . . . Now, we talked earlier in the deposition about your participation in the diversion program about five years ago. I’m going to hand you this document here. This is shown as DIVERSION PROGRAM AGREEMENT . . . A All right. Can you give me a brief explanation as to the circumstances surrounding your entering into this agreement? A I’d had some complaints, one the bar association was concerned about because it came from a - an inmate, because the inmate - I thought the inmate had said not to appeal the case and he said he did and he had written - he was a very threatening individual and he wrote the bar association a letter that said he was going to sue me and the bar association and everybody else and they were concerned about my safety, so they called me in and I’d had some complaints about not responding to people and failure to make phone calls and that type of thing, not keeping them advised of the case. . . .” Such programs are provided for in Rule 5.1, Rules Governing Disciplinary Proceedings, 5 O.S. Supp. 2003, Ch. 1, App. 1-A, and include, but are not limited to: Lawyers Helping Lawyers, psychological counseling, continuing legal education programs, and professional responsibility classes. 44. The diversion agreement was signed in February of 2005. See, ¶4, supra, for the time spans out of which the grievances we consider here grew. 45. State ex rel. Oklahoma Bar Ass’n v. Phillips, 2002 OK 86, ¶21, 60 P.3d 1030; State ex rel. Oklahoma Bar Ass’n v. Bedford, 1997 OK 83, ¶18, 956 P.2d 148; State ex rel. Oklahoma Bar Ass’n v. English, 1993 OK 68, ¶12, 853 P.2d 173. 46. State ex rel. Oklahoma Bar Ass’n v. Pacenza, see note 6, supra; State ex rel. Oklahoma Bar Ass’n v. Badger, 1995 OK 113, ¶13, 912 P.2d 312; State ex rel. Oklahoma Bar Ass’n v. Hall, 1977 OK 117, ¶12, 567 P.2d 975. 47. State ex rel. Oklahoma Bar Ass’n v. Patterson, 2001 OK 51, ¶29, 28 P.3d 551; State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK 106, ¶0, 914 P.2d 644; State ex rel. Oklahoma Bar Ass’n v. Bolton, 1994 OK 53, ¶16, 880 P.2d 339. 48. State ex rel. Oklahoma Bar Ass’n v. Combs, see note 4, supra; State ex rel. Oklahoma Bar Ass’n v. Doris, 1999 OK 94, ¶38, 991 P.2d 1015; State ex rel. Oklahoma Bar Ass’n v. Rozin, 1991 OK 132, ¶10, 824 P.2d 1127. 49. State ex rel. Oklahoma Bar Ass’n v. Jenkins, 2001 OK 54, 27 P.3d 91 [Two year and one day suspension imposed for neglecting clients, not keeping clients informed, charging unreasonable fees, and misrepresenting facts to a federal court.]; State ex rel. Oklahoma Bar Ass’n v. Hopkins, 2000 OK 15, 995 P.2d 1153 [Repeated neglect of client matter for which fees were received, total disregard of disciplinary proceedings, and failure to take complete responsibility for actions warranted disbarment.]; State ex rel. Oklahoma Bar Ass’n v. Dunlap, 2000 OK 8, 995 P.2d 1148 [Failure to meet with client or file petition for post-conviction relief while accepting retainer warranted 30-day suspension.]; State ex rel. Oklahoma Bar Ass’n v. Spadafora, see note 5, supra [Sus-
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pension of two years and one day and costs appropriate for attorney misconduct involving failure to respond to grievances, failure to provide competent representation, twice failing to act with reasonable diligence and promptness, failing to keep client reasonably informed, charging fees that were unreasonable because he failed to do all of work for which he charged, and conduct involving dishonesty or deceit.]; State ex rel. Oklahoma Bar Ass’n v. Meek, 1996 OK 119, 927 P.2d 553 [Disbarment and payment of costs warranted for charging fee unsupported by work product, failure to provide competent representation, neglecting legal matters, making misrepresentation to Bar Association and clients, engaging in conduct prejudicial to justice, failing to abide by conditions of former suspension, and failure to cooperate in grievance process.]; State ex rel. Oklahoma Bar Ass’n v. Houston, 1996 OK 51, 917 P.2d 469 [Three year suspension appropriate where lawyer failed to provide competent representation, act with diligence and promptness, and to keep client reasonably informed along with unauthorized removal of probate funds from safekeeping and failure to timely file bankruptcy while misrepresenting that appeal of felony conviction had been filed.]; State ex rel. Oklahoma Bar Ass’n v. McCoy, 1996 OK 27, 912 P.2d 856 [Disbarment appropriate where attorney admitted violations requiring attorney provide competent representation, keep client reasonably informed, act with reasonable diligence and promptness, make reasonable efforts to expedite litigation, and failure to respond to grievance inquires.]; State ex rel. Oklahoma Bar Ass’n v. Phillips, 1990 OK 4, 786 P.2d 1242 [Neglect of legal matter, failure to answer grievance, and failure to respond to lawful demand for information from disciplinary authority warranted suspension for three years.]; State ex rel. Oklahoma Bar Ass’n v. Garvin, 1989 OK 97, 777 P.2d 926 [Failure to initiate lawsuit, charging $5,000 retainer, refusing to return retainer or documents, failure to inform client, and failure to timely respond to grievances warranted public censure.]; State ex rel. Oklahoma Bar Ass’n v. Raskin, 1982 OK 39, 642 P.2d 262 [Practice of deceit and neglect of clients’ legal affairs and the commingling and conversion of clients’ funds, warrants disbarment, notwithstanding an otherwise unblemished legal career and a willingness to make restitution.]; State ex rel. Oklahoma Bar Ass’n v. Lowe, 1982 OK 20, 640 P.2d 1361 [Neglect of client’s needs, misuse of client’s money, and fabrications told to a client warrant suspension from practice of law for two years.]. 50. State ex rel. Oklahoma Bar Ass’n v. Beasley, 2006 OK 49, 142 P.3d 410 [Considering attorney’s alcohol addiction, attorney’s failure to perform legal services, failure to communicate, and failure to respond to Bar Association investigations warranted suspension of two years and one day.]; State ex rel. Oklahoma Bar Ass’n v. Hummel, 2004 OK 30, 89 P.3d 1105 [Attorney subject to clinical depression suspended for one year for failure to communicate, failure to turn over client files, entering into settlement agreement without authority, and failure to return unearned funds where previously having received two public reprimands.]; State ex rel. Oklahoma Bar Ass’n v. Bolusky, 2001 OK 26, 23 P.3d 268 [Misrepresentation to three clients, failure to respond to Bar Association on multiple occasions, when accompanied by the stabilized condition of attorney’s attention deficit disorder warranted suspension of two years and one day.]; State ex rel. Oklahoma Bar Ass’n v. Southern, 2000 OK 88, 15 P.3d 1 [Attorney disabled by untreated B12 disorder disciplined by public censure and imposition of probation for repeated neglect of clients and their cases and failure to cooperate in grievance process.]; State ex rel. Oklahoma Bar Ass’n v. Wright, 1997 OK 119, 957 P.2d 1174 [Despite evidence of depression, misconduct in nine estate matters, failure to act with reasonable diligence and promptness, failure to communicate with clients, charging unreasonable fees, and failure to respond to allegations and grievances filed by Bar Association warrant suspension for two years and one day.]. 51. Rule 11.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass’n v. Pacenza, see note 6, supra. 52. Rule 6,16, Rules Governing Disciplinary proceedings, see note 7, supra. 53. See, Complainant’s Reply Brief, filed on July 29, 2010, providing in pertinent part on p. 3: “. . . In his brief, Respondent states that ‘A hearing on the Tenth Circuit matter is scheduled for January, 2011.’ See Respondent’s Answer Brief, Proposition I (p. 3). The OBA respectfully requests that this Court take judicial notice of the docket of the 10th Circuit Court of Appeals in In re: Gloyd L. McCoy, Case No. 10-802. The last entry on the docket is that Court’s Order of April 15, 2010, denying McCoy’s Motion for Rehearing or to Vacate Order of Disbarment. No further filings exist in that matter, and no further proceedings have been set. . . .” [Emphasis in original.] 54. See, Complainant’s Reply Brief, filed on July 29, 2010, providing in pertinent part on p. 3: “. . . McCoy has violated this Court’s Order of Interim Suspension by failing to comply with Rule 9,1, Rules Governing Disci-
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plinary Proceedings (‘RGDP’), 5 O.S. 2001 Ch. 1, App. 1-A. See Order of Interim Suspension, 2010 OK 42. Rule 9.1 requires that Respondent file an affidavit with the Court within twenty (20) days of the Order, indicating that he has complied with the rule and outlining the steps he has taken to so comply. The Order was entered on July 1, 2010. Id. McCoy has not filed the required affidavit. . . .” [Emphasis in original.] 55. State ex rel. Oklahoma Bar Ass’n v. Pacenza, 6, supra; State ex rel. Oklahoma Bar Ass’n v. Garrett, see note 6, supra; State ex rel. Oklahoma Bar Ass’n v. Anderson, seen note 6, supra.
2010 OK 68 IN RE: APPLICATION OF TEENA GAYLE GUNTER, 3244 NW 22nd ST., OKLAHOMA CITY, OKLAHOMA 73107 FOR ADMISSION TO THE PRACTICE OF LAW ON MOTION PURSUANT TO RULE TWO OF THE RULES GOVERNING ADMISSION TO THE PRACTICE OF LAW IN THE STATE OF OKLAHOMA SCBD No. 5650. September 20, 2010 ORDER The Board of Bar Examiners of the State of Oklahoma filed its Report and Recommendation that TEENA GAYLE GUNTER be admitted to the practice of law in all Courts of the State of Oklahoma. From the Court’s review of the Report and Recommendation, it appears that the applicant, TEENA GAYLE GUNTER, has met all the requirements for admission on motion pursuant to Rule Two of the Rules Governing Admission to the Practice of Law in the State of Oklahoma. It is therefore ORDERED that TEENA GAYLE GUNTER be admitted to the practice of law in all Oklahoma courts upon taking the oath of an Oklahoma attorney and signing the Roll of Attorneys in the office of the Clerk of this Court.
of Law in the State of Oklahoma (Admission Rules), 5 O.S. 2001, Ch. 1, App. 5. Ms. Gunter does not qualify as a Rule 2 applicant, and in fact, does not possess a valid Special Temporary Permit under this Court’s latest amendment to the Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S. Supp. 2009, Ch. 1, App. 1, Article II, Section 5. ¶2 Ms. Gunter’s Special Temporary Permit was granted to her on November 12, 1997, for the purpose of obtaining employment with the Oklahoma Department of Agriculture. See Rule 2, Section 5, Admission Rules. We assume that she has remained in the same employment under the same permit since that time.1 At the time Ms. Gunter applied for her special temporary permit, she was a licensed attorney in good standing in the state of Arkansas. She was admitted to the Arkansas Bar in 1992. ¶3 In her current application for membership in the Oklahoma Bar Association pursuant to Rule 2, Ms. Gunter has provided evidence of her good standing as a member of the Arkansas State Bar. However, she has failed to provide evidence that she has been “engaged in the actual and continuous practice of law for at least five of the seven years immediately preceding application for admission under this Rule” in a reciprocal state which is a requirement for admission upon motion. See Rule 2, Section 1.2 Her experience in Oklahoma will not fulfill this requirement. See Rule 2 of the Admission Rules, Section 4.3
WATT, J., Dissenting:
¶4 On July 2, 2009, this Court amended Article II, Section 5 of the Rules Creating and Controlling the Oklahoma Bar Association. Section 5(E) was added and provides for an annual renewal of special temporary permits issued under Rule 2, Sections 5 and 6 of the Admission Rules. See section 5(E)(1).4 Section 5(E)(2) provides that special temporary permits granted prior to the promulgation of this rule shall be deemed to have a renewal date of January 2, 2010. This Court has been advised by the Board of Bar Examiners that Ms. Gunter has had a special temporary permit with the Oklahoma Bar since 1997, but it is unclear whether it was renewed. Unless a renewal fee was paid within the time limits of Section 5(E)(1), the permit should have been cancelled.
¶1 I respectfully dissent to the Court’s order granting the Petitioner an Oklahoma license to practice law under the provisions of Rule 2 of the Rules Governing Admission to the Practice
¶5 For decades, our rules have clearly stated that the only means available to attain full membership in the Oklahoma Bar Association is taking the bar examination. The only excep-
DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 20th day of September, 2010. /s/ James E. Edmondson CHIEF JUSTICE EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, KAUGER, WINCHESTER, REIF, JJ. — Concur WATT, COLBERT, JJ. — Dissent
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tion is the reciprocity provision under Rule 2. She should be required to register for the February, 2011 bar examination, pursuant to Rule 4 [Admission by examination]. The reciprocity provisions of Rule 2, Section 1, are not available to her. Otherwise, she will have become an active member of the Bar by using her special temporary permit to obtain legal experience in Oklahoma to avoid the requirement which we expect from all Oklahoma lawyers, i.e., taking the bar examination. The special temporary permit is not transformed into a license to practice law in Oklahoma merely because the permit holder has practiced many years in this state. This was not the intended purpose of Rule 2. ¶6 The materials presented to us also indicates this petitioner was issued a Bar card with an OBA number in 1997 which contravenes the rules in effect then and which continue in effect to this day. See Art. II, Section 5(E)(2), Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S. Supp. 2009, Ch. 1, App. 1.5 I would therefore require the petitioner to surrender her Bar card and order her name stricken from the roll of attorneys until she has successfully passed the Oklahoma Bar Examination and the MPRE. I therefore respectfully dissent. 1. The documents provided by the Board of Bar Examiners in support of her Rule 2 admission request do not indicate otherwise. 2. The Report and Recommendation submitted by the Board of Bar Examiners also fails to indicate that she has ever practiced law in a reciprocal state. 3. Section 4. It is the purpose of this rule to grant reciprocity to qualified judges and lawyers from other jurisdictions and to secure for Oklahoma judges and lawyers like privileges. If the former jurisdiction of the applicant does not grant to Oklahoma judges and lawyers the right of admission on motion, then this Rule shall not apply and the applicant must, before being admitted to practice in Oklahoma, comply with the provisions of Rule Four [Admission by examination]. If the former jurisdiction of the applicant permits the admission of Oklahoma judges and lawyers upon motion but the Rules are more stringent and exacting and contain other limitations, restrictions or conditions of admission and the fees required to be paid are higher, the admission of applicant shall be governed by the same Rules and shall pay the same fees which would apply to an applicant from Oklahoma seeking admission to the bar in the applicant’s former jurisdiction. 4. E. The requirements set forth shall apply to all attorneys granted a special temporary permit to practice: 1. An attorney granted a special temporary permit to practice shall pay an administrative fee to the Oklahoma Bar Association of $350.00 regardless of the duration of the permit. An annual fee in the amount of $350.00 shall be collected on or before the anniversary of the permit. A late fee of $100.00 shall be collected in the event the fee is paid within 30 days of the due date. In the event that the fee is not paid within 30 days of the due date, the special temporary permit shall be deemed cancelled and can only be renewed upon making application to the Board of Bar Examiners and the payment of a new application fee. The annual permit shall only be renewed upon affirmation that the conditions for which the special temporary permit was issued still exist. An attorney granted a special temporary permit to practice shall not appear on the roll of attorneys and shall not be considered a member of the Oklahoma Bar Association. However, an attorney granted a special temporary permit shall be subject to the jurisdiction of the Oklahoma Supreme Court for purposes of
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attorney discipline and other orders revoking, suspending or modifying the special permit to practice law. 5. See note 3, supra.
2010 OK 65 JPMORGAN CHASE BANK, N.A., Plaintiff/ Appellant, v. SPECIALTY RESTAURANTS, INC.; PAUL KRETH; JAMES VALLION; and THE JAMES VALLION TRUST, Defendants/ Appellants. No. 106,289. September 21, 2010 CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III ¶0 The plaintiff/appellant, JPMorgan Chase Bank (mortgagee/Chase/Bank), loaned the defendant/respondent, Specialty Restaurants, Inc. (restaurant/mortgator), monies to purchase property for a restaurant. The mortgage was secured by the property and by guarantees from the defendants/appellants, Paul Kreth (Kreth) and James Vallion and the James Vallion Trust (Vallion) (collectively, guarantors). The restaurant failed and Chase filed a foreclosure action. Judgment was entered against the mortgagor and the guarantors for approximately $1.7 million and the property was disposed of at a sheriff’s sale. Chase purchased the property for $750,000.00. The sale was confirmed. The Bank filed a motion for deficiency judgment. Although Chase asserted that the guarantors were entitled to a credit to their debt of only the proceeds from the sale of the property, the district court credited the money judgments $1.5 million, the fair and reasonable market value as determined in a hearing conducted pursuant to 12 O.S. 2001 §686. Chase appealed and the Court of Civil Appeals affirmed. We hold that the plain, clear, unmistakable, unambiguous, and unequivocal language of the respective guaranty agreements is sufficient to waive the right to a fair and reasonable market value setoff of the guarantors’ liability. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS’ OPINION VACATED; TRIAL COURT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED. Joel W. Harmon, T.P. Howell, DAY, EDWARDS, PROPESTER & CHRISTENSEN, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant, Russell L. Mullinix, Amy G. Piedmont, Armando J. Rosell, MULLINIX, OGDEN, HALL, ANDREWS & LUDLAM, P.L.L.C., Oklahoma
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City, Oklahoma, for Defendants/Appellees, Specialty Restaurants Inc. and Paul Kreth, Conner L. Helms, Erin M. Moore, HELMS & UNDERWOOD, Oklahoma City, Oklahoma, for Defendants/Appellees, James Vallion and the James Vallion Trust. WATT, J.: ¶1 We granted certiorari to address a single issue: whether, after foreclosure, the guarantors1 were entitled to credit on the mortgagee’s judgment for the fair and reasonable market value of the property2 disposed of at sheriff’s sale?3 We determine that the guarantors effectively waived the right to a credit or setoff of the fair and reasonable market value of the property. Our determination is supported by the plain, clear, unmistakable, unambiguous, and unequivocal language of the respective guaranty agreements which is sufficient to waive the right of a fair market value setoff to the guarantors’ debts.4 FACTUAL AND PROCEDURAL HISTORY ¶2 Early in 2000, Chase loaned the restaurant $1,750,000.00 to purchase real estate and equipment for a restaurant. The loan was secured by a mortgage and by two guaranty agreements. Initially, Kreth and Vallion entered identical guaranty agreements waiving any and all rights given to guarantors at law or in equity other than actual payment and agreeing not to assert or make any claim of setoff.5 ¶3 Vallion transferred a number of assets to the James Vallion Trust including the restaurant property. Thereafter, Chase required Vallion to execute a second guaranty agreement6 waiving and agreeing not to assert any limitation defense and the benefits of any statutory provision limiting the trust’s liability including “without limitation” the provisions of sections 334,7 337,8 338,9 and 34410 of title 15 along with any right to setoff under 12 O.S. 2001 §686.11 ¶4 Upon default, Chase filed a foreclosure suit in 2005 receiving summary judgment in its favor. The judgment was affirmed and the property was sold at sheriff’s sale in December of 2006 to Chase for $750,000.00. The sale was confirmed at a hearing on January 5, 2007. Chase filed a motion for deficiency judgment asking that the restaurant and the guarantors be given credit for the sheriff’s sale price of $750,000.00. Later, Chase filed a “clarification” Vol. 81 — No. 25 — 9/25/2010
in the cause indicating that the mortgagor was entitled to credit for the fair and reasonable value of the property as determined by the trial court. Nevertheless, the bank asserted the guarantors could only benefit from the $750,000.00 actually paid for the property at the sheriff’s sale.12 The argument was premised on the guarantors having waived all rights of setoff in their respective guaranty agreements. ¶5 On March 15, 2007, the trial court announced its judgment. It found the fair and reasonable value of the mortgaged property to be $1,500,000.00. The trial court determined that the guarantors were entitled to a credit on the judgment of the fair market value of the property, $1,500,000.00, rather than the sale price of $750,000.00. Chase appealed alleging that the determination of the fair market value of the property was too high and that the guarantors waived any rights of setoff based on a fair and reasonable market value determination. The Court of Civil Appeals affirmed on March 12, 2010. We granted certiorari on May 25, 2010 to consider the sole issue presented: whether, after foreclosure, the guarantors’ obligation should be credited with the court-determined fair and reasonable market value of the property? ¶6 The plain, clear, unmistakable, unambiguous, and unequivocal language of the respective guaranty agreements is sufficient to waive the right of a fair and reasonable market value setoff to the guarantors’ debts. ¶7 Chase argues that the guaranty agreements waived all rights of the guarantors to setoffs for the adjudicated fair and reasonable market value of the property. Both the restaurant and Kreth assert that a credit of the judicially determined fair market value of the property is appropriate pursuant to 12 O.S. 2001 §686.13 Vallion insists that the failure of his after-executed guaranty agreement to specifically waive the provisions of 15 O.S. 2001 §34114 providing for a guarantor’s obligation to be reduced to the same extent as that of the borrower mandates that he be allowed a credit of the judicially determined fair and reasonable market value of the property. It is agreed that the restaurant should receive credit for the reasonable fair market value of $1,500,000.00. Nevertheless, we disagree with the guarantors’ contentions that they are entitled to the same relief.
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Construction of guaranty contracts. ¶8 Before looking at the precise language of the guaranty contracts, it is helpful to review the rules of construction governing such agreements.15 Generally, the promise to stand for the debt of another is purely contractual and collateral to that of the principal debtor.16 Intent at execution controls the meaning of the written terms17 and the extent of the obligation is defined by the promise given.18 Contract language is accorded its plain and ordinary meaning absent a term intended to carry a specific technical meaning.19 ¶9 The parties’ intent in executing a guaranty contract is gathered from the entire instrument.20 Extrinsic evidence need not be introduced when the language is clear and explicit.21 If the contract is complete in itself and, viewed in its entirety unambiguous, its language is the only legitimate evidence of intent.22 The courts decide, as a matter of law, whether a contract provision is ambiguous.23 Absent illegality, the parties are free to bargain as they see fit, and this Court will neither make a new contract or rewrite existing terms.24 Finally, under Oklahoma law, guaranty agreements are construed most strongly against the guarantor.25 The Kreth guaranty agreement. ¶10 The original guaranty agreements signed by Kreth and Vallion on February 15, 2000 provide in pertinent part: “. . . GUARANTOR’S WAIVERS . . . Guarantor waives any and all rights or defenses arising by reason of . . . (d) any defense given to guarantors at law or in equity other than actual payment and performance of the indebtedness. . . . Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both. . . .”26 [Emphasis supplied.] ¶11 Specialty and Kreth assert that the guaranty agreement’s failure to contain specific references to the waiver of protections contained in the statutes governing guaranty agreements, i.e. 12 O.S. 2001 §68627 and 15 O.S. 2001 §§33428 and 341,29 entitles Kreth to a setoff in the amount of the judicially determined fair and reasonable value of the property. We disagree. 2092
¶12 The guaranty agreement Kreth executed specifically provides that, as guarantor, Kreth waived any and all30 defenses at law or in equity other than actual payment. The only “actual” payment here was the purchase price of $750,000.00. Further, Kreth agreed not to assert or claim, at any time, any deductions to the amount guaranteed under the agreement for any claim of setoff. ¶13 The plain, clear, unmistakable, unambiguous, and unequivocal language of the Kreth guaranty agreement waived “any and all” rights of any setoff to the guarantors’ debts other than actual payment. That being the case, Kreth is not entitled to a reduction in his obligation to Chase in the amount of $1,500,000.00, the judicially determined fair and reasonable market value of the property. The Vallion guaranty agreement. ¶14 Vallion signed a second guaranty agreement after creating a trust and transferring his interest in the restaurant property into the same. Vallion signed the second guaranty contract on September 21, 2004. It provides in pertinent part: Guarantor waives and agrees not to assert: . . . (b) the benefit of any statute of limitations affecting Guarantor’s liability hereunder or the enforcement hereof; . . . (e) the benefits of any statutory provision limiting the liability of a surety, including without limitation the provisions of Sections 334, 337, 338 and 344 of Title 15 of the Oklahoma Statutes; . . . (g) the benefits of any statutory provision limiting the right of the Bank to any foreclosure or trustee’s sale of any security for the indebtedness, including without limitation, any right to setoff under Section 686 of Title 12 of the Oklahoma Statutes. . . .”31 [Emphasis supplied.] ¶15 Vallion insists that the quoted language from the guaranty agreement is insufficient to waive his right to receive credit for the fair and reasonable market value of the real property. The contention is simply not credible. ¶16 The term “any” is all-embracing and means nothing less than “every” and “all.”32 Utilization of the word “including” along with the phrase “without limitation” denotes an intention of non-exclusivity.33 The term “including” is neither limiting nor exclusive.34
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¶17 The guaranty contract provides that it waives the benefits of “any” statutory provision limiting the liability of a surety, including “without limitation” several specific statutory references. It goes on to utilize the same language in relation to 12 O.S. 2001 §686, the precise provision relating to offsets for the fair and reasonable market value of the mortgaged property. It is difficult to contemplate how the Bank could have more effectively accomplished eviscerating the guarantor’s right to a setoff for the fair market value of the property. Furthermore, a reasonable interpretation of the clear language of the agreement makes it apparent that the failure to specifically refer to 15 O.S. 2001 §341,35 limiting the obligation of the guarantor to that of the principal, does not require application of the statutory provision to the agreement. Utilization of the phrase “including without limitation” in the agreement most certainly was intended to extend the exclusion to the noted statutory provision. ¶18 The Vallion guaranty agreement specifically waived the right to setoff contained in 12 O.S. 2001 §686.36 Furthermore, the plain, clear, unmistakable, unambiguous, and unequivocal language of the guaranty waived “any” and all “including without limitation” the statutory provisions limiting its liability. Vallion, like Kreth, is not entitled to a reduction in his obligation to Chase in the amount of $1,500,000.00, the judicially determined fair and reasonable market value of the property. CONCLUSION ¶19 A guarantor’s obligation is contractual. Therefore, in each case, we focus on the precise terms of the guarantor’s undertaking, the dimension or breadth of the promise made.37 When parting with funds, the lendor is free to extract from guarantors terms and conditions less favorable than those afforded by statute.38 Guarantors are bound by the unambiguous terms of the contract although the result may be harsh.39 ¶20 The Bank successfully negotiated terms in its favor. Doing so does not render the contract unenforceable for public policy reasons. We hold that the plain, clear, unmistakable, unambiguous, and unequivocal language of the Kreth and Vallion guaranty agreements is sufficient to waive the right to a fair and reasonable market value setoff of the guarantors’ liability. The cause is affirmed as to its conclusion regarding the restaurant’s entitlement to a Vol. 81 — No. 25 — 9/25/2010
credit for the fair and reasonable market value of the property against the deficiency judgment entered. The cause is reversed and remanded for an entry of judgment against the guarantors consistent with this opinion. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS’ OPINION VACATED; TRIAL COURT AFFIRMED IN PART, REVERSED IN PART; AND CAUSE REMANDED. EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, WATT, WINCHESTER, JJ., concur. COLBERT and REIF, JJ., dissent. KAUGER, J., not participating. 1. The term “guaranty” is statutorily defined as “a promise to answer for the debt, default or miscarriage of another person. Title 15 O.S. 2001 §321 providing: “A guaranty is a promise to answer for the debt, default or miscarriage of another person.” Founders Bank & Trust Co. v. Upsher, 1992 OK 35, ¶19, 830 P.2d 1355. 2. Title 12 O.S. 2001 §686 providing in pertinent part: “In all actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment or judgment or judgments shall be rendered for the amount or amounts due as well to the plaintiff as other parties to the action having liens upon the mortgaged premises by mortgage or otherwise . . . Notwithstanding the above provisions no judgment shall be enforced for any residue of the debt remaining unsatisfied as prescribed by this act after the mortgaged property shall have been sold, except as herein provided. Simultaneously with the making of a motion for an order confirming the sale or in any event within ninety (90) days after the date of the sale, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in such action. Such notice shall be served personally or on in such other manner as the court may direct. Upon such motion the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date of sale or such nearest earlier date as there shall have been any market value thereof and shall make an order directing the entry of a deficiency judgment. Such deficiency judgment shall be for an amount equal to the sum of the amount owing by the party liable as determined by the judgment with interest, plus costs and disbursements of the action plus the amount owing on all prior liens and encumbrances with interest less the market value as determined by the court or the sale price of the property whichever shall be the higher. . . .” We note that §686 was amended by the Legislature effective November 1, 2010. The amendment is inapplicable to the cause presented. 2010 Okla.Sess. Law Serv., Ch. 202 (S.B. 2154). 3. Chase agrees that the guarantors are entitled to the $750,000.00 credit representing the price confirmed from the sheriff’s sale. See, Plaintiff’s Clarification of Relief Sought in its Motion for Deficiency Judgements, filed March 8, 2007, found in Volume II of III of the Original Record at pp. 464-65 and providing in pertinent part: . . . 1. In calculating the Deficiency Judgment, the primary debtor, Speciality Restaurants, Inc., it entitled to credit for the fair and reasonable market value of the mortgaged property, as determined by the Court; and 2. The guarantors, namely Paul Kreth, James Vallion and the James Vallion Trust, are entitled to credit for only the proceeds of the Sheriff’s Sale of the foreclosed property. In explanation, the Bank has asserted that the price received at the Sheriff’s Sale for the mortgaged property namely $750,000.00, is equivalent to its fair and reasonable market value, so that the credit given to the primary debtor and the guarantors is the same. If the Court should determine, however, that the fair and reason-
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able market value is some higher figure, the Bank will contend that by reason of waivers in their guaranties, the guarantors are still entitled to credit only for the Sheriff’s Sale proceeds. . . .” 4. We are not presented here with specific surety language which limits the general language as was the Court of Civil Appeals in First Enterprise Bank v. Be-Graphic, Inc. 2006 OK CIV APP 141, 149 P.3d 1064. Opinions released for publication by order of the Court of Civil Appeals are persuasive only and lack precedential effect. Rule 1.200, Supreme Court Rules, 12 O.S. 2001, Ch. 15, App. 1; 20 O.S. 2001 §§30.5 and 30.14. 5. Commercial Guaranty, signed on February 15, 2000 by Paul Kreth, found in Vol. I of III, of the Original Record, at p. 71 and Commercial Guaranty, signed on February 15, 2000 by James Vallion, record p. 74. Both guaranty agreements providing in pertinent part: “. . . Guarantor also waives any and all rights or defenses arising by reason of . . . (d) any defenses given to guarantors at law or in equity other than actual payment and performance of the indebtedness, or (e) by any failure, neglect, or omission by Lender to perfect in any manner the collection of the indebtedness or the security given therefore, including the failure or omission to seek a deficiency judgment against Borrower, Guarantor, any other guarantor, or any person . . . Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under the Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both. . . .” 6. Evidently, the trial court had some concerns as to whether there was consideration for the execution of the second agreement. See, Transcript of Proceedings, March 15, 2007, providing in pertinent part at p. 9: “. . . THE COURT: I’m not going to make that finding either because there are two issues that worry me. And I read the guaranty — or the guarantor’s agreement that was signed by Vallion in 2004 related back to a 2003 loan. It says there was consideration but I’m not sure what the consideration was because it was signed a year after the initial loan was made. . . .” Nevertheless, it is clear that the trial court’s refusal to enforce the guaranty agreement was not based on a finding of lack of consideration. See, Transcript of Proceedings, March 15, 2007, providing in pertinent part at pp. 12-13: “. . . MR. HARMON: The Court enforced the guaranty agreements on the motion for summary judgment. That is the affect of that ruling. Are you making a finding now that portions of the guaranty agreement, at least in our view, purport to waive rights under 686, that those alone didn’t have adequate consideration for their enforceability? THE COURT: No. What I’m saying is I don’t think the guaranty agreements, in fact, the waiver went that far. . . . And I’m not sure what the discussion was with the Vallion Trust to get him to sign that waiver that he signed on behalf of the Vallion Trust, that being Mr. Vallion a year after a note of 2003. Something was going on in the course of dealing with these parties and that’s why I’m saying I’m not going to enforce that. . . .” Furthermore, no evidence was presented on the issue either demonstrating the existence of consideration for the signing of the second guaranty or the lack thereof. Additionally, the guaranty agreement provides that it was extended to Vallion “at the instance and request of Borrower to induce Bank to extend or continue financial accommodations to Borrower.” Any change in obligatory condition of an enforceable pre-existing debt which could be deemed of benefit to guarantor will support guaranty of payment thereof. See, Yount v. Bank of Commerce, 1935 OK 504, ¶0, 44 P.2d 874. Finally, we need not address an issue neither contained in the journal entry of judgment nor presented on certiorari. See, Hedges v. Hedges, 2002 OK 92, ¶17, 66 P.3d 364 [A trial judge’s statement sin announcing an order do not constitute findings of fact and will not be considered incorporated or varying the terms of the journal entry of judgment.]; 7. Title 15 O.S. 2001 §334 providing: “The obligation of a guarantor must be neither larger in amount, nor in other respects more burdensome than that of the principal; and if, in its terms, it exceeds it, it is reducible in proportion to the principal obligation.” 8. Title 15 O.S. 2001 §337 providing: “A continuing guaranty may be revoked at any time by the guarantor, in respect to future transactions, unless there is a continuing consideration as to such transactions which he does not renounce.” 9. Title 15 O.S. 2001 §338 providing:
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“A guarantor is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way are impaired or suspended.” 10. Title 15 O.S. 2001 §344 providing: “A guarantor is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the creditor.” 11. Title 12 O.S. 2001 §686, see note 2, supra. 12. See note 3, supra. 13. Title 12 O.S. 2001 §686, see note 2, supra. 14. Title 15 O.S. 2001 §341, see note 29, infra. 15. The statutory rules for ascertaining intent appear at 15 O.S. 2001 §§151-157. 16. Lum v. Lee Way Motor Freight, Inc., 1988 OK 112, ¶16, 757 P.2d 810; Riverside Nat’l Bank v. Manolakis, 1980 OK 9, fn. 4, 613 P.2d 438. The Court of Civil Appeals found the Kreth agreement could not be intended to encompass anything more than that of the restaurant’s due to its definition of the term “indebtedness” as “any and all of [Debtor’s] liabilities, obligations, debts, and indebtedness to [Bank].” The interpretation is faulty in that it looks to the after occurring facts rather than to the amount of debt undertaken at the time of execution of the mortgage and guaranty agreements. 17. Title 15 O.S. 2001 §152; Oxley v. General Atlantic Resources, Inc., see note 24, infra; Founders Bank & Trust Co. v. Upsher, see note 1, supra; Mercury Inv. Co. v. F.W. Woolworth Co., 1985 OK 38, ¶9, 706 P.2d 523. 18. Title 15 O.S. 2001 §154; Lum v. Lee Way Motor Freight, Inc., see note 16, supra; Riverside Nat’l Bank v. Manolakis, see note 16, supra. 19. Title 15 O.S. 2001 §154; BP America, Inc. v. State Auto Property & Cas. Ins. Co., 2005 OK 65, ¶6, 148 P.3d 832. 20. Title 15 O.S. 2001 §157; Founders Bank & Trust Co. v. Upsher, see note 1, supra. 21. Lum v. Lee Way Motor Freight, Inc., see note 16, supra; Rucker v. Republic Supply Co., see note 25, infra. 22. Founders Bank & Trust Co. v. Upsher, see note 1, supra; Mercury Inv. Co. v. F.W. Woolworth Co., see note 17, supra. 23. Oklahoma Oncology & Hematology v. US Oncology, Inc., 2007 OK 12, ¶27, 160 P.3d 936; Whitehorse v. Johnson, 2007 OK 11, ¶14, 156 P.3d 41; Pitco Prod. Co. v. Chaparral Energy, Inc., 2003 OK 5, ¶12, 63 P.3d 541. 24. Oxley v. General Atlantic Resources, Inc., 1997 OK 46, ¶14, 936 P.2d 943; Bonner v. Oklahoma Rock Corp., 1993 OK 131, ¶5, 863 P.2d 1176. 25. First Nat’l Bank of Hominy v. Citizens & Southern Bank of Cobb County, 651 F.2d 696 (10thCir. 1981); First Nat’l Bank & Trust Co. of Vinita v. Kissee, 1993 OK 96, ¶13, 859 P.2d 502; Rucker v. Republic Supply Co., 1966 OK 118, ¶9, 415 P.2d 951. 26. Kreth/Vallion Commercial Guaranty Agreement, see note 5, supra. 27. Title 12 O.S. 2001 §686, see note 2, supra. Section 686 is called the anti-deficiency statute. In mortgage foreclosure actions, when a creditor fails to seek an order determining a deficiency on the judgment within 90 days after foreclosure sale, the mortgagor’s liability may be considered to have terminated by fictional satisfaction of the mortgage debt. Mortgage debtors cannot contract away the statute’s benefits and are thus the principal beneficiaries of the statute. Conversely, persons other than the mortgage debtor may effectively relinquish the right to set off the fair market value of mortgaged property. Founders Bank & Trust Co. v. Upsher, see note 1, supra; Riverside Nat’l Bank v. Manolakis, see note 16, supra. The statute addresses itself to the creditor/debtor relationship. It does not deal with the more complex, tripartite relationship of guarantor/debtor/creditor or with the rights under the guaranty agreement. The existence of §686 does not automatically operate to exonerate the guarantor from liability on an obligation deemed “satisfied” by that section. Bank of Oklahoma, N.A. v. Red Arrow Marina Sales & Serv., 2009 OK 77, ¶33, 224 P.3d 685; Riverside Nat’l Bank v. Manolakis, see note 16, supra. 28. Title 15 O.S. 2001 §334, see note 7, supra. This statutory provision limits the guarantor’s obligation to that of the principal. 29. Title 15 O.S. 2001 §341 providing: “The acceptance, by a creditor, of anything in partial satisfaction of an obligation, reduces the obligation of a guarantor thereof, in the same measure as that of a principal, but does not otherwise affect it.” 30. See discussion of the term “any” and its breadth in ¶16, infra, and the accompanying footnotes. 31. Vallion agreement, found in Volume I of III, of the Original Record at pp. 225-27.
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32. State ex rel. Porter v. Ferrell, 1998 OK 41, ¶9, 959 P.2d 576. See also, Nguyen v. United States, 556 F.3d 1244 (11th Cir. 2009); United Bank, Inc. v. Stone Gate Homeowners Ass’n, Inc., 220 W.Va. 375, 647 S.E.2d 811 (2007). 33. St. Paul Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202 (5th Cir. 1996); In re Blue Diamond Coal Co., 163 B.R. 798 (E.D.Tenn. 1994). 34. Matter of Younger, 165 B.R. 965 (S.D.Ga. 1994), aff’d, Younger v. United States, 51 F.3d 1051 (1995), cert. denied, 516 U.S. 912, 116 S.Ct. 297, 133 L.Ed.2d 204 (1995). See also, P.C. Pfeffer Co., Inc. v. Ford, 444 U.S. 69, 100 S.C. 328, 62 L.Ed.2d 225 (1979); People v. Perry, 309 Ill.Dec. 330, 224 Ill.2d 312, 864 N.E.2d 196 (2007). 35. Title 15 O.S. 2001 §341, see note 29, supra. 36. Title 12 O.S. 2001 §686, see note 2, supra. 37. Riverside Nat’l Bank v. Manolakis, see note 16, supra. 38. Founders Bank & Trust Co. v. Upsher, see note 1, supra. 39. Bank of America, N.A. v. Red Arrow Marina Sales & Serv., see note 27, supra; Cook v. Oklahoma Bd. of Pub. Affairs, 1987 OK 22, ¶15, 736 P.2d 140.
CIVIL-COMMERCIAL and EMPLOYMENT MEDIATION TRAINING OKC • October 6 — 8 OKC • December 1 — 3 Approved for 24 hours of M.C.L.E. credit This course is lively and highly participatory and will include lecture, group discussion, and simulated mediation exercises Cost: $595 includes all materials This course is specifically designed for attorneys interested in developing a mediation practice or enhancing their skills in the ADR area This course fulfills the training requirements set forth In the District Court Mediation Act of 1998 Contact:
The Mediation Institute (405) 607-8914 James L. Stovall, Jr. 13308 N. McArthur Oklahoma City, OK 73142
NOTICE OF REAPPOINTMENT OF INCUMBENT MAGISTRATE JUDGE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF OKLAHOMA The current term of office of United States Magistrate Judge Steven P. Shreder is due to expire on May 14, 2011. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge to a new eight-year term. The duties of a magistrate judge in this court include the following (1) conduct of most preliminary proceedings in criminal cases; (2) trial and disposition of misdemeanor cases; (3) conduct of various pretrial matters and evidentiary proceedings on delegation from a district judge; and (4) trial and disposition of civil cases upon consent of the litigants. Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court and should be directed to Bruce Guthrie, United States Court Clerk, P.O. Box 607, Muskogee, Oklahoma, 74402. Comments must be received by December 1, 2010.
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OBA Insurance Law Section Fall Meeting CLE, Lunch & Golf Outing
Monday, Oct. 25, 2010 River Oaks Golf Club 10909 Clubhouse Road • Edmond, OK 73013-8385 8 a.m. to 8:25 a.m. Registration and continental breakfast 8:25 a.m. to 8:30 a.m. Welcome and opening remarks, Jon Starr, Section Chairperson 8:30 a.m. to 9:45 a.m. An Overview of the Oklahoma Healthcare Authority by Howard Pallotta, General Counsel 9:45 a.m. to 10 a.m. Break 10 a.m. to 11:15 a.m. Productivity Tools for Litigators by Dayne Tracy 11:15 p.m. Lunch and 2010 Officer Elections 12 p.m. to 6 p.m. Golf Complete the form below, send with check for registration fee, and return by Oct. 15, 2010: * Submitted for 3 hours of Oklahoma CLE credit.
-------------------------------- ---------------------------------------Registration Form Full Name:___________________________________________________________________________________________________________ Address:____________________________________________________________________________________________________________ City:______________________________________________________ State:_______________________ Zip:________________________ Phone Number:_______________________________________ E-mail Address:__________________________________________________ Are you an OBA Insurance Section member?
______ Yes ______ No
If you are not an OBA Insurance Section Member, would you like to join for $20? ______ Yes _______ No Amount enclosed (circle one):
with golf:
Member $100
without golf: Member $50
*Non-Member $200
*Non-member $150
New Member $120
New Member $70
I _________ will (handicap ______) or ___________ will not be playing golf. If there are other individuals attending that you would like to play within your golf foursome, please list: 1) ________________________________________________________________________________ 2) ________________________________________________________________________________ 3) ________________________________________________________________________________ Current or New Section Members mail with check to:
Oklahoma Insurance Section, c/o Jon D. Starr, P.O. Box 2619, Tulsa, Oklahoma 74101-2619 Non-Members mail with check to: CLEI,
LLC, P.O. Box 14174, Tulsa, OK 74159-1174
*This CLE is being done in conjunction with Continuing Legal Education Institute, LLC, (CLEI), which will handle all non OBA Insurance Law Section member registrations.
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Court of Criminal Appeals Opinions 2010 OK CR 21 RICARDO ENRIQUE FLOREZ, Appellant, v. STATE OF OKLAHOMA, Appellee. Case No. F-2009-765. September 8, 2010 OPINION A. JOHNSON, VICE PRESIDING JUDGE: ¶1 Ricardo Enrique Florez was tried by jury and convicted of Assault and Battery By Force Likely to Produce Death in violation of 21 O.S.Supp.2007, § 652(C) in the District Court of Cleveland County, Case No. CF-2009-38. In accordance with the jury’s recommendation the Honorable Tom A. Lucas sentenced Florez to eight (8) years imprisonment.1 Florez appeals from this conviction and sentence. ¶2 Florez raises one proposition of error in support of his appeal: I. Improper argument during the State’s final closing argument as to the amount of any imposed sentence Florez would serve requires that his sentence be modified. ¶3 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that, under the circumstances of this case, a serious error in argument does not require relief. ¶4 Florez’s crime is subject to the 85% Rule, 21 O.S.Supp.2007, § 13.1. The jury was correctly instructed under OUJI-CR 2d 10-13B: A person convicted of Assault and Battery with Force Likely to Produce Death shall be required to serve not less than eighty-five percent (85%) of the sentence imposed before becoming eligible for consideration for parole and shall not be eligible for any credits that will reduce the length of imprisonment to less than eighty-five percent (85%) of the sentence imposed. If a person is sentenced to life imprisonment, the calculation of eligibility for parole is based upon a term of forty-five (45) years, so that a person would be eligible for consideration for parole after thirty eight (38) years and three (3) months.
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This instruction is required under Anderson v. State, 2006 OK CR 6, ¶ 24, 130 P.3d 273, 282-83, which held that juries should be informed of the statutory requirement that a defendant serve 85% of his sentence before he can be considered for parole. The instruction represents a departure from the general rule that parties are not to encourage jurors to speculate about the possibility of parole. The language of the instruction is tailored to fit the specific statutory provisions, and gives factual information without encouraging speculation. Anderson, 2006 OK CR 6, ¶ 16, 130 P.3d at 279. The statute is very narrowly focused. It mandates that a defendant must serve a minimum term consisting of 85% of his imposed sentence before he may be considered for parole. 21 O.S.Supp.2007, § 13.1. The statute neither requires that a defendant be paroled after serving 85% of his sentence, nor prohibits him from parole consideration. It is designed merely to ensure that defendants who are convicted of certain crimes will serve 85% of whatever sentence they receive before parole becomes an option. Any instruction or argument to the jury based on this statute must accurately reflect its limited mandate, and the uniform jury instruction given in this case does precisely that. OUJI-CR 2d 10-13B. ¶5 The prosecutor here improperly argued the effect of the 85% Rule to the jury in final closing argument: And you’re also given an instruction that tells you he will only do 85 percent of what you give him. He’s not going to do all of it. So you’ve got to take that into consideration. He’s only going to do 85 percent of it. Florez did not object to this statement at the time it was made. However, the record reflects that closing argument ended within two minutes after the statement was made. At that time, in a sidebar conference, defense counsel stated that the prosecutor had misstated the law regarding the 85% Rule and asked the trial court to re-instruct jurors on that Rule. Rather than do so, the trial court told jurors that: [S]ometimes people make arguments that somebody disagrees with. I’d ask you simply to read your instructions and listen to
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the evidence and resolve any questions you have about arguments that were made by either side. ¶6 Florez is correct. This argument is a misleading misstatement of law which constitutes a substantial violation of Florez’s constitutional and statutory right to have his jury correctly instructed regarding sentencing. 20 O.S.2001, § 3001.1. Florez’s prosecutor told his jury that under the 85% Rule he would be freed before he served the full term of any sentence imposed. Nothing in either 21 O.S.Supp.2007, § 13.1 or the standard criminal jury instruction supports this interpretation. As discussed above, the plain language of the statute gives no authorization to automatically release a defendant before his imposed sentence is served. The statute requires, rather, that a defendant must serve a mandatory minimum term of years before early release may be considered. The statutory reality is the opposite of the prosecutor’s argument. Prosecutors should not misstate the law in closing argument. Brewer v. State, 2006 OK CR 16, ¶ 10, 133 P.3d 892, 894; Hooks v. State, 2001 OK CR 1, ¶ 49, 19 P.3d 294, 316, reversed in part, Hooks v. Workman, 606 F.3d 715 (10th Cir. 2010); Miller v. State, 1992 OK CR 77, ¶¶ 4-5, 843 P.2d 389, 390. This misstatement of law grievously misled jurors into believing that Florez would, by statute, be released before serving the entirety of any term of years they imposed. Prosecutors should not mislead jurors in closing argument, particularly when the misleading statements involve incorrect statements of law. Bell v. State, 2007 OK CR 43, ¶ 8, 172 P.3d 622, 625; Miller, 1992 OK CR 77, ¶ 5, 843 P.2d at 390; Johnson v. State, 1986 OK CR 187, ¶ 5, 731 P.2d 424, 428. It is error for a prosecutor to argue to jurors that a defendant will not serve the full term of imprisonment imposed. Tucker v. State, 1972 OK CR 170, ¶ 11, 499 P2d 458, 461. ¶7 The State argues on appeal that the closing comments were not error because they “properly called the jury’s attention to the 85% rule in determining an appropriate sentence.” The prosecutor certainly called the jury’s attention to the 85% Rule. However, she did so by flatly misstating the law’s intention and effect, and thus encouraging jurors to misapply the law in considering an appropriate punishment. The State argues that the “concept” of the prosecutor’s statement was that Florez would have to serve 85% of his sentence before becoming eligible for parole. That would have been a 2098
correct statement of the law. However, the prosecutor’s actual words make no mention of parole and explicitly tell jurors that, pursuant to the 85% Rule instruction they were given, Florez would not have to serve the full sentence imposed. The proper interpretation of the 85% Rule suggested on appeal simply cannot be reconciled with the language of the improper interpretation argued to the jury. ¶8 The State suggests on appeal that the trial court’s statement to the jury after argument was concluded amounted to an admonishment which cured any error. The record does not support this claim. The trial court told jurors that people could disagree with statements made in argument; this implies that there might be a way to view the State’s argument as a legitimate interpretation of the statute. As no such interpretation is possible, the trial court may have inadvertently given credence to the State’s improper misstatement of law. Further, the trial court simply told jurors to review their recollections of the evidence and re-read the instructions. The prosecutor had just misstated the law in explaining the contents of the 85% Rule instruction. Telling jurors to re-read the instruction was not an effective cure for this error. Jurors’ only frame of reference regarding the meaning of the instruction was the misstatement of law they had just heard. The trial court did nothing to correct that misstatement, leaving jurors with the impression that the prosecutor’s interpretation of the instruction was correct. ¶9 In another case this misstatement of law would require either reversal for resentencing or sentence modification. Under the specific facts of this case, no relief is required. Assault and battery by force likely to produce death carries a maximum sentence of life in prison. The prosecutor asked jurors to recommend a sentence of 16 years. The jury recommended Florez serve eight years. Given the disparity between the possible maximum sentence and the sentence imposed, and the fact that jurors chose a sentence half as long as that which the prosecution requested, Florez fails to show he was prejudiced by this error. Johnson, 1986 OK CR 187, ¶ 16, 731 P.2d at 428. Under the circumstances of this case, the record supports the conclusion that this error did not play a role in the jury’s sentencing decision. Brewer, 2006 OK CR 16, ¶ 17, 133 P.3d at 895.
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Decision ¶10 The Judgment and Sentence of the District Court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision. ATTORNEYS AT TRIAL Steven L. Stice, 303 South Peters, Norman, Oklahoma 73069, Attorney for Defendant. Jennifer P. Austin, Lori A. Puckett, Assistant District Attorneys, District Attorney’s Office, 201 South Jones, Suite 300, Norman, Oklahoma 73069, Attorneys for State. ATTORNEYS ON APPEAL Ricki J. Walterscheid, Appellate Defense Counsel, P.O. Box 926, Norman, Oklahoma 73070, Attorney for Petitioner. 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. OPINION BY: A. JOHNSON, V.P.J. C. Johnson, P.J.: Concur Lumpkin, J.: Concur In Result Lewis, J.; Concur. 1. Florez must serve 85% of this sentence before becoming eligible for parole consideration.
LUMPKIN, JUDGE: CONCUR IN RESULTS ¶1 I concur in the results reached in this case but write separately to address the same concerns I raised in Anderson v. State, 2006 OK CR 6, 130 P.3d 272, 285-286 (Lumpkin, J., concur in part/dissent in part). This case presents the type of problem I wrote about in Anderson
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(application of the 85% Rule to life sentences). Once the door is opened to talking about parole, it is a slippery slope and difficult to establish parameters for the application of 21 O.S.Supp.2007, § 13.1. ¶2 Further, the judge’s direction to the jury to rely on their instructions and the evidence was a sufficient admonishment to cure any error in the prosecutor’s remarks. See Warner v. State, 2006 OK CR 40, ¶ 192, 144 P.3d 838, 890-91; Hollan v. State, 1984 OK CR 42, ¶ 19, 676 P.2d 861, 865. In Boyde v. California, 494 U.S. 370, 384, 110 S.Ct. 1190, 1200, 108 L.Ed.2d 316 (1990), the United States Supreme Court said: . . . arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law. ¶3 Here, the jury was correctly instructed on the 85% Rule. We presume juries follow their instructions. Ryder v. State, 2004 OK CR 2, ¶ 83, 83 P.3d 856, 875, citing Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993). In light of the court’s admonition and the correct jury instruction, any misstatement by the prosecutor, when considered in the context of the entire closing argument, did not deny Appellant a fair trial. See Spears v. State, 1995 OK CR 36, ¶ 60, 900 P.2d 431, 445 (allegations of prosecutorial misconduct will not cause a reversal of judgment or modification of sentence unless their cumulative effect is such as to deprive the defendant of a fair trial).
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NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF james mark dobbs, SCBD #5665 TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION
Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if James Mark Dobbs should be reinstated to active membership in the Oklahoma Bar Association. Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Oklahoma City, Oklahoma, at 9:30 a.m. on Wednesday, November 3, 2010. Any person wishing to appear should contact Gina Hendryx, General Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007, no less than five (5) days prior to the hearing.
PROFESSIONAL RESPONSIBILITY TRIBUNAL
The Oklahoma Bar Association Presents
Opening Your
Law Practice
September 28 - Tulsa County Bar Center October 5 - Oklahoma Bar Center 8:30 a.m. Registration & Continental Breakfast 9:00 a.m. – 3:30 p.m. Lunch provided by Oklahoma Attorneys Mutual Insurance of Oklahoma Preregistration required. Contact Mark Schneidewent 405-416-7026 or marks@okbar.org 0 hours MCLE/0 hours ethics. This program is free, but you must register to attend.
Get y
our l a
w pr
actic
e sta
rted
in th
e rig
ht di recti
on
(formerly New Lawyer Experience)
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The Oklahoma Bar Journal
Vol. 81 — No. 25 — 9/25/2010
OBA/CLE Annual Meeting 2010 Crowne Plaza Hotel, Tulsa
November 17, 2010
DAY ONE
Family Law
Criminal Law
How Good Lawyers Survive Bad Times
Nuts and Bolts
Promenade A
Promenade B
Promenade C
Promenade D
WEDNESDAY Registration 8 - 9 a.m.
Program Planner/ Moderator
Program Planner/ Moderator
Program Planner/ Moderator
Program Planner/ Moderator
Lori Pirraglia
Ben Brown Charles Sifers
Jim Calloway
Collin Walke
Session 1 9 - 9:50 a.m.
Client Intake: Starting Out on the Right Foot/Making Good Client Choices
Immigration & Criminal Law: A Practical Explanation in Light of Padilla v. Kentucky
50 Tips for Tough Times
Administrative Law Trials: We Aren’t in Kansas Anymore
Jon Ford
Session 2 10 - 10:50 a.m.
Gary Payne
Joan Lopez Campbell Cooke
Temporary Order Hearing: Exhibits Needed and Preparing Your Clients Phil Tucker
Session 3 11 - 11:50 a.m.
Jim Calloway
The Practical & Advance Use of the Science of Eyewitness Identification in the Courtroom PART I
Marketing on a Budget
Get Your Ethics! (ethics)
Mark A. Robertson
Gina Hendryx
The Thrifty Lawyer
Your Solo Shopping List
Professor Gary Wells Ph.D.
Finding Expert Witnesses - Business Valuators and Mental Health Professionals TBD
The Practical & Advance Use of the Science of Eyewitness Identification in the Courtroom PART 2
L. Michele Nelson
Jim Calloway
Professor Gary Wells Ph.D.
12-2 p.m. LUNCH (On your own) Session 4 2 -2:50 p.m.
Dissolution Depositions: Taking and Defending Donelle Ratheal
Vol. 81 — No. 25 — 9/25/2010
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
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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.
The Oklahoma Bar Journal
Vol. 81 — No. 25 — 9/25/2010
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
Vol. 81 — No. 25 — 9/25/2010
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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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 PAYMENT OPTIONS: q Incarceration of Women in Oklahoma q Check enclosed: Payable to Okla. Bar Association Credit card: q VISA q Mastercard q Discover q American Express 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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Card #______________________________________________________________ Credit Card CVV/CVC # (on back of card)___________________________________ Exp. Date____________________________________________________________ Authorized Signature ____________________________________________________________________
HOTEL ACCOMMODATIONS:
Fees do not include hotel accommodations. For reservations contact: Crowne Plaza Tulsa Hotel at (800) 227-6963. Call by Oct. 26 and mention hotel code: Oklahoma Bar Association 2010 Convention for a special room rate of $105 per night. For hospitality suites, contact Craig Combs at (405) 416-7040 or e-mail: craigc@okbar.org. The Oklahoma Bar Journal
Vol. 81 — No. 25 — 9/25/2010
BAR NEWS
2011 OBA Board of Governors Vacancies Nominating Petition Deadline was 5 p.m. Friday, Sept. 17, 2010
OFFICERS
Summary of Nominations Rules
President-Elect Current: Deborah Reheard, Eufaula Ms. Reheard automatically becomes OBA president Jan. 1, 2011 (One-year term: 2011) Nominee: Cathy Christensen, Oklahoma City
Vice President Current: Mack K. Martin, Oklahoma City (One-year term: 2011) Nominee: Reta M. Strubhar, Piedmont
BOARD OF GOVERNORS Supreme Court Judicial District Two Current: Jerry L. McCombs, Idabel Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, LeFlore, McCurtain, McIntosh, Marshall, Pittsburg, Pushmataha and Sequoyah Counties (Three-year term: 2011-2013) Nominee: Gerald C. Dennis, Antlers Supreme Court Judicial District Eight Current: Jim T. Stuart, Shawnee Coal, Hughes, Lincoln, Logan, Noble, Okfuskee, Payne, Pontotoc, Pottawatomie and Seminole Counties (Three-year term: 2011-2013) Nominee: Scott Pappas, Stillwater Nominee: Gregg W. Luther, Shawnee Supreme Court Judicial District Nine Current: W. Mark Hixson, Yukon Caddo, Canadian, Comanche, Cotton, Greer, Harmon, Jackson, Kiowa and Tillman Counties (Three-year term: 2011-2013) Nominee: O. Christopher Meyers, Lawton Member-At-Large Current: Jack L. Brown, Tulsa (Three-year term: 2011-2013) Nominee: Renée DeMoss, Tulsa Nominee: Kimberly K. Hays, Tulsa Nominee: Mack K. Martin, Oklahoma City Vol. 81 — No. 25 — 9/25/2010
Not less than 60 days prior to the Annual Meeting, 25 or more voting members of the OBA within the Supreme Court Judicial District from which the member of the Board of Governors is to be elected that year, shall file with the Executive Director, a signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Governors for and from such Judicial District, or one or more County Bar Associations within the Judicial District may file a nominating resolution nominating such a candidate. Not less than 60 days prior to the Annual Meeting, 50 or more voting members of the OBA from any or all Judicial Districts shall file with the Executive Director, a signed petition nominating a candidate to the office of Member-At-Large on the Board of Governors, or three or more County Bars may file appropriate resolutions nominating a candidate for this office. Not less than 60 days before the opening of the Annual Meeting, 50 or more voting members of the Association may file with the Executive Director a signed petition nominating a candidate for the office of President-Elect or Vice President or three or more County Bar Associations may file appropriate resolutions nominating a candidate for the office. If no one has filed for one of the vacancies, nominations to any of the above offices shall be received from the House of Delegates on a petition signed by not less than 30 delegates certified to and in attendance at the session at which the election is held. See Article II and Article III of OBA Bylaws for complete information regarding offices, positions, nominations and election procedure. Vacant positions will be filled at the OBA Annual Meeting Nov. 17-19. Terms of the present OBA officers and governors listed will terminate Dec. 31, 2010. Nomination and resolution forms can be found at www.okbar.org.
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BAR NEWS
OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)
BOARD OF GOVERNORS
Kimberly K. Hays, Tulsa
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.
Nominating Petitions have been received for the following counties: Lincoln, Noble and Payne A total of 107 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 Member-at-Large 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 312 signatures appear on the petitions.
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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 310 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: Creek and Washington Mack K. Martin, Oklahoma City Nominating Petitions have been filed nominating Mack K. Martin for election of Member-atLarge of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2011. Fifty of the names thereon are set forth below: Jack S. Dawson, William A. Edmondson, Jimmy K. Goodman, David Pomeroy, Walter Haskins, Martha Phillips, Andrew Wakeman, John Tucker, Kerry Lewis, Michael A. Simpson, Lindsay McDowell, Drew Palmer, Trent Bridges, Ben Butts, Joe Carson, John W. Coyle, Heather E. Coyle, Gerald E. Durbin, Nicholle Jones Edwards, Tynan Grayson, Lawrence K. Hellman, Gary Homsey, Kristin Huffaker, Annette S. Jacobi, Elton Jenkins, Tim Kuykendall, James W. Larimore, Caroline M. Larsen, Robert A. Manchester IV, Robert C. Margo, Leslie M. Maye, Kieran Maye, Robert McCampbell, Keith McFall, Ken McKinney, Patty Moore-Grotta, Susan P. Moran, Judy Hamilton Morse, Michael L. Mullins, R. Clark Musser, David Ogle, John S. Oldfield, Cynda Ottaway, Jim Prince, Tim Rhodes, Karen Rieger, Fred Shaeffer, Michael A. Simpson, Richard Stevens, Roger A. Stong and Eleanor Thompson A total of 127 signatures appear on the petitions.
The Oklahoma Bar Journal
Vol. 81 — No. 25 — 9/25/2010
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
Vol. 81 — No. 25 — 9/25/2010
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Court of Civil Appeals Opinions 2010 OK CIV APP 86 NBI SERVICES, INC., Appellant, vs. THE CORPORATION COMMISSION OF THE STATE OF OKLAHOMA, composed of The Honorable Bob Anthony, Chairman, The Honorable Jeff Cloud, Vice Chairman, and The Honorable Dana L. Murphy, Commissioner; and DAVIS OPERATING CO., Appellees. Case No. 107,452. August 6, 2010 APPEAL FROM THE OKLAHOMA CORPORATION COMMISSION REVERSED AND REMANDED WITH INSTRUCTIONS Gregory L. Mahaffey, Raven V. McNealNoumane, MAHAFFEY & GORE, P.C., Oklahoma City, Oklahoma, for Appellant Michele Craig, Deputy General Counsel, OKLAHOMA CORPORATION COMMISSION, Office of General Counsel, Oklahoma City, Oklahoma, for Appellee The Corporation Commission of the State of Oklahoma William H. Huffman, Jessie V. Pilgrim, LEVINSON, SMITH, & HUFFMAN, P.C., Tulsa, Oklahoma, for Appellee Davis Operating Co. DEBORAH B. BARNES, JUDGE: ¶1 NBI Services, Inc. (NBI) appeals from the Oklahoma Corporation Commission’s (the OCC) July 22, 2009, Pooling Order No. 569203 (Pooling Order),1 and the OCC’s August 21, 2009, order denying NBI’s “Motion to ReOpen, Motion to Stay and to Vacate [the Pooling Order].”2 The Pooling Order pooled common sources of supply in a drilling and spacing unit located in Pittsburg County, Oklahoma, of which appellee NBI and Davis Operating Co. (Davis) owned partial interests. In addition, the Pooling Order named Davis as the operator, and it ordered that any burden on the NBI interest exceeding a 1/4 total royalty be borne by NBI because NBI conveyed overrides in a “non-arm’s-length” transaction in contemplation of the Pooling Order. ¶2 In the order denying NBI’s “Motion to ReOpen, Motion to Stay and to Vacate [the Pooling Order],” the OCC “adopt[ed] the recommenda2108
tion of the [r]eferee.” The referee determined that, although a 1981 Joint Operating Agreement (the 1981 JOA) potentially rendered the Pooling Order invalid, only the district courts have the authority to determine whether all the interested parties are “covered by [the 1981 JOA] . . . .”3 Hence, the referee recommended that only a separate action brought in the district court could resolve the validity and scope of the 1981 JOA, and that NBI’s motion be denied because the OCC does not have jurisdiction to make factual findings regarding the 1981 JOA in order to determine whether it affects the OCC’s authority to have entered the Pooling Order. ¶3 Based on our review of the facts and law, we reverse the OCC’s Order denying NBI’s “Motion to Re-Open, Motion to Stay and to Vacate [the Pooling Order],” and remand this case to the OCC with instructions to reconsider NBI’s motion and the Pooling Order in light of the 1981 JOA, and determine whether, and to what extent, the 1981 JOA affects the Pooling Order. FACTS AND PROCEDURAL BACKGROUND ¶4 Pursuant to a prior order, Order No. 108707, the OCC spaced the subject property — a 640-acre drilling and spacing unit located in Pittsburg County, Oklahoma (the Spacing Unit).4 NBI is the operator of the Wilson Well in the Spacing Unit. The Wilson Well produces from the Cromwell formation. Davis acquired oil and gas rights in the Spacing Unit in 2007. Davis had drilled some wells in the Hartshorne formation in the Spacing Unit, and, in mid-2007, approached NBI concerning development of the Hartshorne formation in the Spacing Unit. According to Tony Benavides, a landman employed by Davis, NBI and Davis “had personal meetings in their office to discuss this and I thought we had something done and then all of a sudden it met with no avail, so I just indicated that we were going to pool it, which we did . . . .”5 ¶5 On November 20, 2008, Davis filed a pooling application to drill a well to develop the common sources of supply underlying the Spacing Unit. Davis requested in its application that the OCC:
The Oklahoma Bar Journal
Vol. 81 — No. 25 — 9/25/2010
issue an Order pooling the interests as a unit and adjudicating the rights and equities of oil and gas owners in the [Lower Boggy (Bartlesville), Upper Savanna, Lower Savanna, Upper Booch, Middle Booch and Hartshorne] common source[s] of supply underlying [the Spacing Unit] all in accordance with 52 O.S., §87.1, to designate the Applicant or some other party as operator and grant said operator one-year in which to commence operations.6 On December 9, 2008, counsel for NBI filed an “Entry of Appearance and Notice of Protest” in opposition to Davis’s application. ¶6 Davis’s pooling application was heard by an administrative law judge (the ALJ) on March 5, 2009, at the OCC. In Davis’s brief in support of its application, and at the March 5 hearing, it argued that certain royalty overrides made by NBI to its affiliates do not qualify as armslength transactions and have destroyed any value to the interest and have made development of the unit impossible for those owners outside of the NBI interest.7 The ALJ recommended that the pooling application be granted. The ALJ further recommended the fair market value options to participation,8 and recommended that although NBI’s “assignment of overriding royalty to Affiliates is a recognized transaction dealing with unit interests, it is not the result of an arm’s length transaction and cannot be considered to be fair market value in this unit.”9 Therefore, the ALJ recommended that the pooling application should be granted “without inclusion of an option for parties burdened in excess of a 1/4th royalty; parties so burdened will be responsible for the overrides it created through prior assignments of interest.”10 ¶7 NBI appealed the ALJ’s recommendations,11 arguing that the ALJ’s recommendations were contrary to law and evidence.12 Oral arguments were presented to the OCC en banc and an appellate referee on April 28, 2009. The appellate referee’s report, filed on June 9, 2009, states, in effect, that there is sufficient evidence to support the ALJ’s recommendations and that those recommendations are not contrary to law. ¶8 On July 22, 2009, the OCC issued the Pooling Order granting Davis’s application and noting that the interest of NBI was subject to a “non-arm’s-length overriding royalty that was made in contemplation of the pooling proceedVol. 81 — No. 25 — 9/25/2010
ing . . . .” In the Pooling Order, the OCC adopted the ALJ’s recommendation that any burden on the NBI interest exceeding a total of 25% should be borne by NBI and not Davis. ¶9 NBI filed a “Motion to Re-Open, Motion to Stay and to Vacate [the Pooling Order].” In this motion, NBI states that it “has new evidence . . . that [a]ffects the standing of [Davis] to file this case and that [a]ffects the jurisdiction of [the OCC] to hear this case.”13 That “new evidence” is the 1981 JOA. After a hearing on the motion, the ALJ recommended that the motion be granted on the grounds that the 1981 JOA, if valid, would invalidate the OCC’s authority to have entered the Pooling Order. The ALJ’s recommendation was, once again, appealed to an appellate referee who determined that the ALJ’s recommendation should be overturned and that the motion should be denied. ¶10 The OCC “adopt[ed] the recommendation of the [r]eferee” in its order denying NBI’s “Motion to Re-Open, Motion to Stay and to Vacate [the Pooling Order].” The referee recommended that NBI’s motion be denied because, according to the referee, the OCC does not have jurisdiction to make factual findings regarding the 1981 JOA in order to determine whether it invalidates the OCC’s authority to have entered the Pooling Order. ¶11 From the Pooling Order, and from the OCC’s Order denying its “Motion to Re-Open, Motion to Stay and to Vacate [the Pooling Order],” NBI appeals. STANDARD OF REVIEW ¶12 “The [S]upreme [C]ourt has previously held that issues of the Corporation Commission’s jurisdiction are questions of law, upon which appellate courts must make independent findings.” Union Pacific Railroad Co. v. Oklahoma Corporation Commission, 2001 OK CIV APP 56, ¶ 7, 23 P.3d 954, 956. See Southern Pacific Communications Co. v. Corporation Commission of Oklahoma, 1978 OK 14, ¶ 11, 586 P.2d 327, 330; State of Oklahoma ex rel. Cartwright v. Oklahoma Ordnance Works Authority, 1980 OK 94, ¶ 4, 613 P.2d 476, 479. Because in this appeal we consider whether the OCC has the jurisdiction to make certain factual findings, we must independently determine this legal issue. Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court’s legal rulings. Kluver v.
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Weatherford Hospital Authority, 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083. Questions concerning jurisdiction, in this case subject matter jurisdiction, may be raised at any time by the parties or by this Court on its own motion, which applies to orders and decrees of the OCC. Tenneco Oil Co. v. El Paso Natural Gas Co., 1984 OK 52, ¶ 16, 687 P.2d 1049, 1052. ANALYSIS ¶13 NBI argues that the OCC erred in denying its “Motion to Re-Open, Motion to Stay and to Vacate [the Pooling Order].” It argues that “100% of the interest in the [Spacing] Unit was subject to the [1981] JOA,” and, therefore, the OCC lacked jurisdiction to enter the Pooling Order.14 In other words, NBI argues that “Davis is attempting to force pool a Unit where all the interest owners are subject to a JOA in an attempt to extract better terms for itself from the [OCC] than it would be entitled to under the JOA,” and “[b]ecause [the OCC] does not have jurisdiction to pool parties whose interests are already pooled by private agreement, [the OCC] erred when it denied NBI’s ‘Motion to Re-Open, Motion to Stay and to Vacate [the Pooling Order].’”15 NBI sought to have the OCC “reconsider its [Pooling Order] in light of compelling evidence presented that 100% of the working interests in the [Spacing Unit] were covered by the [1981] JOA, a private agreement . . . .”16 ¶14 Pursuant to 52 O.S. Supp. 2006 §§ 86.1 et seq., the OCC oversees the conservation of oil and gas and its jurisdiction is limited to the resolution of public rights. Tucker v. Special Energy Corp., 2008 OK 57, ¶ 9, 187 P.3d 730, 733. “Public rights are involved [in the area of oil and gas conservation] when ‘a unitization order, pooling order, or order setting the allowables on the unit’s well’ affects ‘the correlative rights of all mineral rights owners in [a] common source of supply [in a] unit.’” Id. (quoting Leck v. Continental Oil Co., 1989 OK 173, ¶ 8, 800 P.2d 224, 226). ¶15 On the other hand, the OCC lacks jurisdiction over private rights. That is, the OCC “is without authority to hear and determine disputes between two or more private persons or entities in which the public interest is not involved.” Rogers v. QuikTrip Corp., 2010 OK 3, ¶ 7, 230 P.3d 853, 857 (footnote omitted). “The function of the [OCC] is to protect the rights of the body politic; private rights and obligations 2110
of private parties lie within the purview of the district court.” Id. at ¶ 6 (footnote omitted). ¶16 In Tenneco Oil Co. v. El Paso Natural Gas Co., 1984 OK 52, 687 P.2d 1049, the Oklahoma Supreme Court “stated that the parties to [an OCC] forced pooling order [can] flesh out that arrangement through contract,” and “the parties’ rights and obligations under the contract [are] a matter for determination in the district courts, the proper forum for questions dealing with the respective rights of private parties.” Samson Resources Co. v. Corporation Commission, 1985 OK 31, ¶ 7, 702 P.2d 19, 21. In Samson, the parties did not “flesh out” the arrangement set forth in a forced pooling order (as occurred in Tenneco); instead, the spacing unit in question had been developed pursuant to a voluntary pooling agreement. The Court stated that this situation “appears, even more clearly than Tenneco, to involve a question of private rights.” Id. at ¶ 8. “To prevent drainage and the concomitant waste occurring in a unit in which interest owners are not able to come to terms regarding voluntary development, [the OCC] is empowered, upon proper application, to order those interests pooled.” Id. at ¶ 11 (emphasis added). In Samson, however, because the interest owners were able to come to terms regarding voluntary development, the Court found that it was not within the OCC’s jurisdiction to override such a private contractual relationship.17 ¶17 This finding is in line with 52 O.S. Supp. 2007 § 87.1(e), which states: When two or more separately owned tracts of land are embraced within an established spacing unit, or where there are undivided interests separately owned, or both such separately owned tracts and undivided interests embraced within such established spacing unit, the owners thereof may validly pool their interests and develop their lands as a unit. Where, however, such owners have not agreed to pool their interests and where one such separate owner has drilled or proposes to drill a well on said unit to the common source of supply, the [OCC], to avoid the drilling of unnecessary wells, or to protect correlative rights, shall, upon a proper application therefor and a hearing thereon, require such owners to pool and develop their lands in the spacing unit as a unit. Therefore, a pooling applicant must establish that there is no agreement among the owners
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of the oil and gas rights for the development of the property. Only, among other things, “[w]here . . . [the] owners have not agreed to pool their interests” does the OCC have the authority to enter a forced pooling order. Id.18 ¶18 NBI claims that the 1981 JOA shows that all of the interest owners are subject to a private, voluntary agreement regarding the development of the Spacing Unit. Pursuant to the law set forth above, it is clear that NBI’s claim regarding the 1981 JOA, if true, threatens the jurisdiction of the OCC to have entered the Pooling Order. Nevertheless, the OCC denied NBI’s “Motion to Re-Open, Motion to Stay and to Vacate [the Pooling Order]” on the basis that only the district courts have the power to resolve the issue as to whether the 1981 JOA affects the jurisdiction of the OCC to have entered the Pooling Order. For the following reasons, we disagree. ¶19 “[The OCC], when exercising its adjudicative authority, is the functional analogue of a court of record with dispute resolution authority conferred by Constitutional grant.” Van Horn Oil Co. v. Oklahoma Corporation Commission, 1988 OK 42, ¶ 12, 753 P.2d 1359, 1363 (footnote omitted). There can be absolutely no doubt of the [OCC’s] legitimate claim to possession of adjudicative authority. When in individual proceedings it sits to hear and decide the issues before it, it acts, pursuant to Art. 9 § 19, Okl. Const., in the exercise of “powers and authority of a court of record”. The role so constitutionally assigned to the [OCC] is entirely consistent both with Art. 4 § 1, Okl. Const., that provides for the separation of powers, as well as with Art. 7 § 1, Okl. Const., that vests judicial power in certain constitutionally-created or statutorilyestablished courts and tribunals. Monson v. State of Oklahoma ex rel. Oklahoma Corporation Commission, 1983 OK 115, ¶ 4, 673 P.2d 839, 842 (footnotes omitted). Hence, although the OCC does not have the authority to adjudicate private rights disputes, it does have the authority of a court of record to make fact findings to determine whether the dispute is one involving private rights or public rights. That is, the OCC has the power to receive evidence and make fact findings to determine whether it has the jurisdiction to enter an order. See Samson Resources Co. v. Oklahoma Corporation Commission, 1993 OK CIV APP 67, ¶ 9, 859 Vol. 81 — No. 25 — 9/25/2010
P.2d 1118, 1121 (the OCC “has the power to receive evidence and determine whether an applicant owns minerals or has the right to drill in the subject unit,” and “[t]o hold that [the OCC] does not have the authority to determine whether an applicant has standing and hence whether it has jurisdiction, would infringe upon the powers constitutionally and statutorily conferred upon it.”). ¶20 If the OCC lacked the authority to determine whether the separate owners of a spacing unit are subject to a private agreement to pool their interests and develop that spacing unit, this would infringe upon the OCC’s powers constitutionally and statutorily conferred upon it. It would hinder the OCC’s ability to enter valid pooling orders because the OCC has the statutory authority to do so only “[w]here . . . [the] owners have not agreed to pool their interests . . . .” 52 O.S. Supp. 2007 § 87.1(e). Instead, the OCC, when it sits to hear and decide the issues before it, acts pursuant to the “powers and authority of a court of record.” Therefore, the OCC has the power to receive evidence and make fact findings to determine whether it has subject matter jurisdiction to enter an order. ¶21 Because the OCC did not determine whether, or to what extent, the 1981 JOA affects its jurisdiction, we decline to make this determination. It is not the duty of the appellate court on review to make first-instance determinations of disputed law or fact issues. Evers v. FSF Overlake Associates, 2003 OK 53, ¶ 18, 77 P.3d 581, 587. An appellate court cannot craft an initial decision upon an untried question and then direct that it be followed on remand. Id. See also Bivins v. State of Oklahoma ex rel. Oklahoma Memorial Hospital, 1996 OK 5, ¶ 19, 917 P.2d 456, 464 (“[a]n appellate court will not make first-instance determinations of disputed law or fact issues. That is the trial court’s function in every case — whether in law, equity or on appeal from an administrative body.”). Instead, we reverse the OCC’s Order denying NBI’s “Motion to Re-Open, Motion to Stay and to Vacate [the Pooling Order],” and remand this case to the OCC with instructions to reconsider NBI’s motion and the Pooling Order in light of the 1981 JOA, and determine whether, and to what extent, the 1981 JOA affects the Pooling Order. ¶22 Because we remand this case to the OCC and decline to make first-instance findings on appeal, we deny NBI’s motion to admit new
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evidence into the appellate record that purportedly helps prove the validity of the 1981 JOA. Furthermore, and in light of this Opinion, we need not address the remaining issues raised on appeal regarding whether the Pooling Order is sustained by the law and by substantial evidence. CONCLUSION ¶23 For the reasons set forth above, we reverse and remand this case to the OCC to reconsider NBI’s motion and the Pooling Order in light of the 1981 JOA, and determine whether, and to what extent, the 1981 JOA affects the Pooling Order. ¶24 REVERSED AND REMANDED WITH INSTRUCTIONS. WISEMAN, C.J., and FISCHER, P.J., concur. 1. Record (R.), p. 341. 2. R., p. 368. 3. R., p. 255. 4. The legal description of this property is Section 4, Township 6 North, Range 14 East, Pittsburg County, Oklahoma. In Davis’s answer brief, p. 2, it asserts that this spacing order was entered by the OCC in 1974.
5. R., p. 37. 6. R., p. 272. 7. R., p. 297. 8. The ALJ recommended that the fair-market value options in lieu of participation should be: (a) a cash bonus of $150 per acre with a 23% royalty; or (b) no cash bonus with a 1/4th royalty; (2) that any party burdened in excess of 23% will be precluded from electing the highest cash bonus and royalty and must choose to either participate or take no cash bonus with a 1/4th royalty. 9. R., p. 299. 10. Id. 11. R., p. 306. 12. Specifically, NBI argued (1) that the ALJ’s report “fails to protect the correlative rights or prevent waste of hydrocarbons,” (2) that “[t]he ALJ erred in not sustaining [NBI’s] objection to the economic testimony of [Davis’s landman, Tony Benavides], that did not meet the Daubert test,” (3) that the “evidence shows that a well will be economic at the reduced net revenue interest,” and (4) that “[t]he ALJ erred in abrogating the private property rights of non-parties . . . by obliterating their overriding royalty interests.” R., pp. 306-307. 13. R., p. 351. 14. NBI’s Brief-in-chief, p. 11. 15. Id. at p. 14. 16. Id. at p. 15. 17. Nevertheless, “no private contract or operating agreement may cause or grant a license to commit waste, or diminish correlative rights, control of which is exclusively within [the] power of [the OCC].” Tenneco Oil Co. v. El Paso Natural Gas Co., 1984 OK 52, ¶ 20, 687 P.2d 1049, 1053 (footnotes ommited). 18. The Pooling Order itself, on page 2, states “[t]hat Applicant . . . has not agreed with all of the other such owners in such drilling and spacing unit to pool their interests and to develop the drilling and spacing unit and common source of supply as a single unit . . . .”
NOTICE: JUDICIAL ELECTION COMPLAINTS Please take notice that the Professional Responsibility Panel on Judicial Elections is available to receive complaints concerning candidates running for judicial office in the upcoming elections. In the event that you believe that a candidate has violated the Judicial Canons or other rules applying to Judicial Elections, please forward your written, verified complaint with any supporting documentation to the following address: Professional Responsibility Panel on Judicial Elections c/o William J. Baker P.O. Box 668 Stillwater, OK 74076
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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS SUMMARY OPINION Wednesday, September 8, 2010 C-2009-1049 — Kairi Wheaton Blanche, Petitioner, entered blind pleas of guilty to the crimes of Conspiracy to Commit Robbery with a Weapon (Count 1), Robbery with a Weapon (Count 2), and Petit Larceny (Count 3) in Case No. CF-2009-4A in the District Court of Pottawatomie County. The Honorable Douglas L. Combs accepted Blanche’s pleas and sentenced him to five years imprisonment and a $250 fine on Count 1, twenty years imprisonment and a $250 fine on Count 2, and six months in the County Jail on Count 3. Judge Combs ordered the sentences on Counts 1 and 2 to be served consecutively with each other, and his sentence on Count 3 to be served concurrently with Count 1. The district court held a hearing on Blanche’s motion to withdraw his pleas and denied the motion. Blanche appeals the district court’s order and asks this Court to issue a Writ of Certiorari allowing him to withdraw his pleas and proceed to trial, or in the alternative, to favorably modify his sentences. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the district court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs. F-2009-922 — Robert Clayton Hoadley, Appellant, was tried by jury for the crime of Second Degree Murder, After Former Conviction of Two or More Felonies, in Case No. CF2009-169 in the District Court of Comanche County. The jury returned a verdict of guilty and recommended as punishment forty-five years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Robert Clayton Hoadley has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs in Results; Lewis, J., Concurs. F-2009-871 — Christopher W. Boswell, Appellant, was tried in a bench trial before the Honorable H. Michael Claver for the crimes of Cultivation of a Controlled Dangerous Substance (Count 1), Maintaining a Place for Keep2114
ing/Selling a Controlled Substance (Count 2), and Unlawful Possession of a Controlled Drug (marijuana)(Count 3) in Case No. CF-2007-208 in the District Court of Okmulgee County. Judge Claver found Boswell guilty and sentences him to ten years imprisonment on Count 1, five years imprisonment on Count 2, and five years imprisonment on Count 3, with all but the first three years suspended on each count. Judge Claver further ordered that the sentences be served concurrently. From this judgment and sentence Christopher W. Boswell has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs. Friday, September 10, 2010 S-2009-858 & S-2009-862 — Jeffrey Dale Brumfield was charged by Information in Custer County District Court, Case No. CF2007-168, with Possession of Methamphetamine. His wife, Margaret Brumfield, was charged in Custer County District Court Case No. CF-2007-169 with the same crime. On September 8, 2009 the defendants filed a joint motion to suppress. The State filed a response on September 17, 2009, and the defendants replied on September 21, 2009. On September 22, 2009, the Honorable Christopher S. Kelly, Associate District Judge, sustained the motion to suppress. The State timely lodged its appeal. The district court’s order suppressing evidence is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs in Results; Lewis, J., Concurs in Results. Monday, September 13, 2010 F-2009-614 — Appellant, John Wesley Revard, was tried by jury and convicted of Robbery With A Dangerous Weapon, After Two or More Felony Convictions in the District Court of Tulsa County, Case Number CF-2007-3593. The jury recommended as punishment imprisonment for Forty (40) years and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. The judgment is hereby AFFIRMED, and the Sentence is MODIFIED TO THIRTY (30) YEARS IMPRIS-
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ONMENT. Opinion by: Lumpkin, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lewis, J., Concur In Result; Smith, J., Concur. F-2009-1021 — Appellant Calvin Eugene Barnett was convicted in a non-jury trial of First Degree Murder, Case No. CF-2007-49, in the District Court of Hughes County before the Honorable George Butner, District Judge. Appellant was sentenced to life imprisonment without the possibility of parole. 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; Smith, C., Concur. PCD-2010-661 — 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, 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’s original application for post-conviction relief was denied by unpublished Opinion on _____ ________.1 Goode is now before this Court with a subsequent application for post-conviction relief and a motion for an evidentiary hearing. We conclude that he is not entitled to relief. Accordingly, Goode’s Subsequent Application Vol. 81 — No. 25 — 9/25/2010
for Post-Conviction Relief is DENIED, and the motion for an evidentiary hearing is also DENIED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. 1. Goode v. State, Case No. PCD 2008-211 (Okl.Cr. ___________)
F-2009-290 — Demario Lamarkis Adams, Appellant, was tried by jury in the District Court of Tulsa County, Case Number CF-20081306, and found guilty of murder in the first degree, in violation of 21 O.S.Supp.2006, § 701.7(A). The jury sentenced him to life imprisonment. The District Court, Hon. Gordon McAllister, District Judge, pronounced judgment and sentence accordingly. The trial court sentenced accordingly. From this judgment and sentence, Demario Lamarkis Adams has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Smith, J., Concurs. Tuesday, September 14, 2010 RE-2009-1103 — Appellant, Hiram Mitchell III, pled guilty February 25, 2005, in the District Court of Pottawatomie County, Case No. CF2004-284, to Forcible Sodomy. He was sentenced to six years with five years suspended, with rules and conditions of probation, and fined $250.00. The State filed a motion to revoke Appellant’s suspended sentence on March 27, 2009. Following a revocation hearing September 30, 2009, the Honorable Douglas L. Combs, District Judge, revoked Appellant’s remaining suspended sentence, five years. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by C. Johnson, P.J.; A. Johnson, V.P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs. Wednesday, September 15, 2010 F-2009-978 — Patrick Joseph Sellner, Appellant, was tried by jury for the crime of Assault with Intent to Kill, in Case No. CF-2008-300, in the District Court of Pittsburg County. The jury returned a verdict of guilty and recommended as punishment five years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Patrick Joseph Sellner has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Lewis, J., Concurs.
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Thursday, September 16, 2010
Tuesday, September 21, 2010
C-2010-201 — Petitioner, Rodney Mark Aguirre was charged in the District Court of Tulsa County, Case No. CF-2009-3413, with Possession of a Firearm After Former Conviction of a Felony (Count I), Unlawful Possession of Controlled Drug With Intent to Distribute (Cocaine) (Count II), and Acquiring Proceeds From Drug Activity (Count III), all counts After Two or More Previous Convictions. Pursuant to a plea agreement, the State dismissed the allegation of two or more previous convictions as to Counts II and III. On January 14, 2010, Petitioner entered a guilty plea to all counts. The Honorable Kurt G. Glassco, District Judge, sentenced Petitioner to eight (8) years imprisonment, $500 fine, $250 Victim’s Compensation Assessment, and Court Costs each in Counts I and III, and to eight (8) years imprisonment, $500 fine, $250, Victim’s Compensation Assessment, $125 lab fee, and Court Costs in Count II. The trial court ordered the sentences to run concurrent with each and with Petitioner’s sentence in District Court of Tulsa County, Case No. CF-2005-3197. On January 22, 2010, Petitioner filed his Motion to Withdraw Guilty Plea. At a hearing held on February 19 and 22, 2010, the trial court denied the Motion to Withdraw Guilty Plea. It is this denial which is the subject of this appeal. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lewis, J., Concur; Smith, J., Concur.
F-2009-836 — Appellant Mark Stephen Anderson was tried by jury and convicted of Driving a Motor Vehicle While Under the Influence of Drugs, After Former Conviction of Two or More Felonies, Case No. CF-2008-270, in the District Court of Stephens County. The jury recommended as punishment ten (10) years imprisonment and a $5,000. fine. The trial court sentenced accordingly, ordering the sentence to be served consecutively to the sentence imposed in Stephens County Case No. CF-2005-303. 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.
Friday, September 17, 2010
C-2010-31 — Ronnie Craig Hannon, Jr., Petitioner, was charged by Amended Information with the crime of First Degree Rape AFCF in Case No. CF-2009-321, in the District Court of Kay County. In accordance with a plea agreement, Hannon pled guilty and was sentenced to seventeen (17) years, with all but the first ten (10) suspended, and a fine of $200.00. On December 8, 2009, Hannon wrote a pro-se letter timely requesting to withdraw his plea. On December 14, 2009, an Amended Defendant’s Request to Withdraw Plea of Guilty was filed by Hannon’s newly appointed counsel. Hannon’s motion to withdraw his plea was denied concluding a hearing held on January 6, 2010. From this judgment and sentence Ronnie Craig Hannon, Jr. has perfected his Petition for Writ of Certiorari. The Petition for Writ of Certiorari is DENIED. Opinion by: Smith, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.
RE-2009-724 — Patrick Leslie Tennal, Appellant, appeals from the revocation of his four and one-half year suspended sentence in Case No. CF-2008-165 in the District Court of McIntosh County. On February 5, 2008, Appellant entered a plea of guilty to the offense of Second Degree Rape. He was convicted and sentenced to a term of five years, with all except the first six months suspended. On August 6, 2009, the District Court found Appellant had violated rules and conditions of his probation and revoked his four and one-half year suspended sentence. The revocation of Appellant’s four and one-half year suspended sentence in Case No. CF-2008-165 in the District Court of McIntosh County is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur; Smith, J., concur. 2116
F-2009-563 — Roy Lee Hall, Appellant, was tried by jury for the crime of Trafficking in Illegal Drugs after former conviction of two or more felonies in Case No. CF-2008-564, in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment thirty (30) years imprisonment and a $25,000.00 fine. The trial court sentenced accordingly. From this judgment and sentence Roy Lee Hall has perfected his appeal. The Judgment of the District Court is AFFIRMED. The Sentence of thirty (30) years imprisonment is AFFIRMED. The Fine imposed by the District Court is MODIFIED to $10,000.00 Opinion by: Smith, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur in Results.
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ACCELERATED DOCKET Friday, September 10, 2010 J 2010-491 — The Appellant, L. J. W., appealed to this Court from an order entered by the Honorable Kurt G. Glassco, District Judge, granting the State’s motion to transfer Appellant from the youthful offender system to the custody of the Department of Corrections in Case No. CF-2008-5041 in the District Court of Tulsa County. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., Concurs; A. Johnson, V. P. J., Concurs; Lewis, J., Concurs. COURT OF CIVIL APPEALS (Division No. 1) Friday, September 10, 2010 104,489 — In Re the Marriage of: Kathy Groom, Petitioner/Appellee, vs. Stanley Groom, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Daman Cantrell, Judge. Petitioner/ Appellee Kathy Groom (Wife) and Respondent/Appellant Stanley Groom (Husband) were married December 22, 1972. At the hearing for the dissolution of their marriage, September 26, 2005, the trial court heard evidence with respect to the value of Husband’s dental practice, and the award of alimony among other issues. Husband argues error in the division of property and award of alimony, and that the trial court’s seven month delay in issuing its ruling resulted in a violation of his constitutional rights to due process of law and a speedy and certain remedy for every injury to person, property, or reputation and right. However, he fails to allege substantial harm from the delay, and there is none obvious from the record presented. We AFFIRM the order of the trial court. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 106,929 — In Re the Marriage of: Patricia L. Carter, Petitioner/Appellant/Counter-Appellee, vs. Anthony Carter, Respondent/Appellee/Counter-Appellant. Appeal from the District Court of Cleveland County, Oklahoma. Honorable Stephen W. Bonner, Judge. According to the Decree of Dissolution of Marriage, filed March 4, 2009, Patricia L. Carter (Petitioner/Appellant/Counter-Appellee/Wife/ Mother) and Anthony Carter (Respondent/ Appellee/Counter-Appellant/Husband/ Father) were married March 15, 2003 and had one child, born in 2005. Many of the issues were settled during mediation, but a hearing was held during two days in October 2008 perVol. 81 — No. 25 — 9/25/2010
taining to the disputed claims. On appeal, Mother contends, inter alia, that the trial court erred in granting sole custody of the child to Father. Father asserts that the loan from his brother-in-law should have been considered as a marital debt and divided between the parties. Both parties allege error with respect to attorney fees. We find no reversible error and affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 106,932 — In the Matter of the Estate of Ruth I. Walter, Deceased. Peggy L. Symes, Proponent/Appellant, vs. James Cleo Walter, Contestant/Appellee. Appeal from the District Court of Beckham County, Oklahoma. Honorable Douglas Haught, Judge. Peggy L. Symes appeals from an order denying admission of an alleged holographic will for probate. After the trial court had appointed Symes and James Cleo Walter as Personal Representatives of their mother’s estate and found that their mother died intestate, Symes sought to have a handwritten document admitted as a holographic will. Walter contested admission of the proposed will. The trial court found the document was not completed with testamentary intent. We affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 107,347 — Cynthia Michelle Buntemeyer, Plaintiff/Appellee, vs. Craig Edward Buntemeyer, Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Wilma Palmer, Trial Judge. Appellant (Father) seeks review of the trial court’s order denying his motion to modify/rescind protective order. Father argues the court abused its discretion in denying his motion and determining the protective order shall remain in full force and effect. Father’s argument that there is no present justification for the protective order to remain in place is not supported by his own evidence. Father’s actions clearly indicate the court did not abuse its discretion in ruling the permanent protective order should remain “in full force and effect.” AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,459 — Corey Lamb, Plaintiff/Appellant, vs. Oklahoma City Board of Adjustment, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara G. Swinton, Trial Judge. Appellant (Homeowner) seeks review of the trial court’s order sustaining the demurrer to the
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evidence by Appellee (Board) in Homeowner’s action challenging Board’s determination the presence of a multi-family residence next door to Homeowner was a lawful nonconforming use because it existed at the time Oklahoma City adopted single-family zoning for the neighborhood in 1947. We affirm, holding the trial court did not err in placing the burden of proof upon Homeowner and in finding she failed to meet it. AFFIRMED. Opinion by Hansen, J.; Hetherington, J., concurs, and Buettner, P.J., dissents with opinion. 107,542 — Odette Rogers, Plaintiff/Appellee, vs. Bob Bailey and M. Suzanne Bailey, Defendant/Appellants. Appeal from the District Court of Bryan County, Oklahoma. Honorable Trace C. Sherrill, Trial Judge. Appellants (Baileys) seek review of the trial court’s judgment in favor of Appellee for forcible entry and detainer. The Baileys contend the trial court should have transferred the matter from the small claims docket to the district court docket to proceed as a case in ejectment. We affirm, holding the Baileys’ answer failed to plead facts showing color of title. AFFIRMED. Opinion by Hansen, J.; Hetherington, J., concurs, and Buettner, P.J., dissents with opinion. 107,731 — In the Matter of the Petition of RSL Funding, L.L.C., for Approval of Transfer of Payment Rights of Ross Allen Green, Plaintiff/ Appellee, vs. Ross Allen Green, Appellee, Bryan Gaston, Appellant. Appeal from the District Court of Woodward County, Oklahoma. Appellee (RSL) filed a Motion to Dismiss this appeal on the grounds that Gaston lacks standing to bring the appeal because he was not a party to the underlying action and never sought leave to intervene nor was he granted leave to intervene. At no time in the proceedings has Gaston attempted to establish a legally cognizable interest in the outcome of the present action, which was the trial court approval of a transfer of structured settlement payment rights from Appellee Green to RSL. The gist of Gaston’s argument is merely that he has a tort claim against Green. Gaston has no legally cognizable interest in the outcome of this controversy. Therefore, he does not have standing to appeal the trial court’s Order of Transfer. APPEAL DISMISSED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,806 — In Re the Marriage of: Bobby Bryan Newcomb, Petitioner/Appellee, vs. Kerri Lorraine Newcomb, Respondent/Appellant. Appeal from the District Court of Okla2118
homa County, Oklahoma. Honorable Barry Hafar, Judge. The Court of Civil Appeals addressed Respondent/Appellant’s/Wife’s appeal No. 107,027 in an unpublished opinion filed July 9, 2010. Neither Wife nor Petitioner/ Appellee/Husband filed a Petition for Rehearing in this Court or a Petition for Certiorari in the Oklahoma Supreme Court. The case was mandated August 6, 2010. During the course of the appeal, Wife filed a second appeal, the present appeal, from a post-judgment order granting Husband reimbursement of money he spent to prevent foreclosure on the building occupied by her business, Strike Zone, Inc. The appeal was deemed too late for consolidation with the first appeal, but by order of the Supreme Court, the second appeal was to be assigned to the same division of the Court of Civil Appeals which decided the first appeal. Because the question was raised in the Briefs in No. 107,027 and this Court was able to view the docket sheet to verify the judgment, as well as having the voluminous record at hand, the question was answered at that time. The present appeal is therefore already answered. As a matter of form, we affirm the Order of the trial court entered February 11, 2009 and filed November 2, 2009. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 108,160 — In the Matter of B.C., Deprived Child, Jodi L. Compton, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Garfield County, Oklahoma. Honorable Tom L. Newby, Trial Judge. Appellant (Mother) seeks review of the trial court’s judgment based on a jury verdict terminating Mother’s parental rights to her minor child, B.C. (Child). We reverse and remand for new trial because the record does not show the jury made the necessary findings supporting its verdict. REVERSED AND REMANDED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 108,162 — Reginald B. Scott, Petitioner, vs. Construction Management Specialist, Inc., and/ or Willowbrook Construction Co., Inc., CompSource Oklahoma 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 an order of a three-judge panel of the Workers’ Compensation Court (Panel) denying his claim for temporary total disability (TTD) benefits and medical care. Claimant con-
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tends he was injured in a motor vehicle accident on his way to work. Respondent (Employer) denied compensability arguing Claimant was not on a special errand but was simply on his way to work when he was involved in a traffic accident. Claimant has the burden of proving his injury occurred in the course of his employment and arose out of his employment. There is competent evidence supporting the Panel’s order. SUSTAINED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. Friday, September 17, 2010 106,879 — LaShonda La Shay Bills, individually and d/b/a Lighthouse Learning, Katrina Bills, Dollie R. Watson, and Juanita Clark, Plaintiffs/Appellants, vs. State of Oklahoma, ex rel. Department of Human Services, Defendant/Appellee. Appeal from the District Court of Choctaw County, Oklahoma. Honorable James R. Wolfe, Judge. Plaintiffs/Appellants LaShonda La Shay Bills, individually and d/b/a Lighthouse Learning, Katrina Bills, Dollie R. Watson, and Juanita Clark (collectively “Lighthouse Learning”) appealed from an adverse administrative decision rendered by Defendant/Appellee Department of Human Services (DHS), confirming an allegation of neglect at the daycare center. The matter was dismissed with prejudice by the district court on appeal on the ground the district court lacked jurisdiction pursuant to the Oklahoma Administrative Procedure Act, 75 O.S.2001 § 250 et seq. We affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 106,890 — M&I Marshall & Ilsley Bank, Formerly Gold Bank, Plaintiff/Appellee, vs. William R. Satterfield, Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Deborah C. Shallcross, Trial Judge. Defendant/Appellant argues the trial court abused its discretion in treating his Application to Correct the Record Nunc Pro Tunc as a motion to vacate. The claim there are errors of law in judgment cannot be raised by an application for order nunc pro tunc. Moreover, a trial court cannot by order nunc pro tunc modify a judgment to make it the judgment it intended to render, but did not; but the trial court can, by such order, correct the journal entry so that words have the meaning intended, in that they reflect the judgment actually rendered or pronounced. The proper function of an order nunc pro tunc is to correct errors in a judgment, but a nunc pro tunc order Vol. 81 — No. 25 — 9/25/2010
may not properly review or correct the original judgment actually rendered. Appellant also argues he did not receive notice by mail of any proceedings in this case. However, he has not demonstrated his attorney of record during all of the pertinent proceedings, did not receive notice of the proceedings. Appellant filed his motion to vacate [application nunc pro tunc] on November 7, 2007, 33 days after the filing of the Order on the Motion to Confirm Sheriff’s Sale, an appealable order. Therefore, the motion to vacate was untimely. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,421 — Sharon Phelps, Plaintiff/Appellee, vs. Auston Clark, individually, and d/b/a Clarks At Your Service, L.L.C., Defendants/ Appellants. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara G. Swinton, Judge. Plaintiff/Appellee Sharon Phelps (Phelps) sued Defendants Auston Clark, individually and d/b/a Clarks at Your Service, L.L.C., for breach of contract, unjust enrichment, and fraud, with respect to a home re-model job. Summary Judgment was granted in favor of Phelps. Phelps filed a Motion for Attorney Fees and Costs relying on 15 O.S.2001 §276, which was granted. We hold that 15 O.S.2001 §276 is not applicable to Phelps’ underlying causes of action and, therefore, reverse the award of attorney fees. REVERSED. Opinion by Buettner, P.J.; Hetherington, J., concurs, and Hansen, J., dissents with opinion. 107,719 — Brett Fleak, Plaintiff/Appellee, vs. Melissa Fleak, Defendant/Appellant. Appeal from the District Court of Mayes County, Oklahoma. Honorable Erin L. Oquin, Trial Judge. Appellant appeals the court’s order denying her motion to vacate a replevin judgment and argues the district court, sitting as a small claims court, was without jurisdiction to enter replevin judgment. The district court has unlimited original jurisdiction of all justiciable matters and in all matters where exclusive jurisdiction is not given some other court, or as otherwise provided by the Oklahoma Constitution. The judgment Appellant seeks to vacate was rendered by the district court, sitting as a small claims court. The trial court did not abuse its discretion in refusing to vacate the replevin judgment. Appellee’s request for appeal-related attorney fees is granted. The trial court’s order is AFFIRMED and this case is REMANDED FOR A DETERMINATION OF
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ATTORNEY FEES INCURRED ON APPEAL. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,879 — Ronald Stoll, Plaintiff/Appellant, vs. Shong Lee and Yer Lee, Defendants/Appellees. Appeal from the District Court of Delaware County, Oklahoma. Honorable Robert G. Haney, Trial Judge. Plaintiff/Appellant Ronald Stoll seeks reversal of a judgment in favor of Defendants/Appellees Shong Lee and Yer Lee premised upon a finding by the trial court that a clause in a contract between them was unconscionable as a matter of law. HELD: The actual price the Lees will pay under a paragraph Stoll included in a land sale contract is so gross as to shock the conscience. We affirm the trial court’s finding the contract paragraph supporting Stoll’s claim is unconscionable and the Lees were entitled to judgment in their favor as a matter of law. AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 107,880 — Ronald Stoll, Plaintiff/Appellant, vs. Chong Lor Xiong and Mee Yang, Defendants/Appellees. Appeal from the District Court of Delaware County, Oklahoma. Honorable Robert G. Haney, Trial Judge. Plaintiff/ Appellant Ronald Stoll appeals a judgment finding a clause in his contract with Defendants/Appellees Chong Lor Xiong and Mee Yang unconscionable. Xiong and Yang argued the contract provision supporting Stoll’s claims is “the personification of the kind of inequality and oppression that courts have found is the hallmark of unconscionability.” HELD: No fair and honest person would propose and no rational person would enter into a contract containing a clause imposing a premium for land and which, without any consideration to them, imposes additional costs in the hundreds of thousands over a thirty-year period that both are unrelated to the land itself and exceed the value of the land. We affirm the trial court’s findings the contract paragraph supporting Stoll’s claim is unconscionable and Xiong and Yang were entitled to judgment in their favor as a matter of law. AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 108,242 — Ginger Sloan, Plaintiff/Appellant, vs. Digital Transcription Systems, Inc. (DTS), Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Twyla Mason Gray, Trial Judge. Appellant (Employee) seeks review of the trial court’s 2120
order dismissing her action against Appellee (Employer) for improper venue based upon a forum selection clause in the parties’ Asset Purchase Agreement. We hold the parties’ agreement as to forum selection is valid and enforceable, but effective only as to disputes arising from the asset purchase agreement. We affirm the trial court’s order to the extent it dismissed any claims arising from the Asset Purchase Agreement, reverse it to the extent it dismissed any claims arising from the employment agreement, and remand for further proceeding consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 108,246 — Curwood, Inc. and Fidelity & Guaranty Insurance, Petitioners, vs. Kevin Ray Moore and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioners Curwood, Inc. and Fidelity & Guaranty Insurance seek review of an order of a three-judge panel of the Workers’ Compensation Court which affirmed the trial court’s finding that Respondent Kevin Ray Moore sustained an injury arising out of and in the course of his employment. The panel’s order is supported by competent evidence and we sustain. We deny Moore’s request that we find Employer frivolously filed this review proceeding and award Moore attorney fees. SUSTAINED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 108,326 — Gefco and Fidelity and Guaranty Insurance Company, Petitioners, vs. Murlyn Pool and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioner (Employer) seeks review of an order of a Three-Judge Panel of the Workers’ Compensation Court finding Respondent (Claimant) was temporarily totally disabled (TTD) from a work-related injury. The Panel added a statement that Claimant overcame the presumption of non-work related injury by a preponderance of the evidence. Employer argues only that Claimant presented no evidence to overcome the presumption of no injury. Claimant’s testimony as well as Dr. B’s report is competent evidence to support the Panel’s finding Claimant rebutted the presumption of 85 O.S.2001 §24.2. SUSTAINED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.
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(Division No. 2) Wednesday, September 8, 2010 106,672 — Peoples Bank f/k/a Peoples State Bank, Plaintiff/Appellee, v. William R. Satterfield f/d/b/a Classic Autos and Classic Auto Leasing, Defendant/Appellant, and Unknown Spouse, if any, United States of America ex rel. United States Department of Justice, County Treasurer and Board of County Commissioners of Tulsa County, Oklahoma, John Doe (real name unknown), and Jane Doe (real name unknown), Defendants. Appeal from an order of the District Court of Tulsa County, Hon. Rebecca B. Nightingale, Trial Judge. Appeal seeks review of an order of the trial court granting Appellee’s motion to confirm a sheriff’s sale of certain real property. Based on our review of the record on appeal and applicable law, we affirm the trial court’s order. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. Thursday, September 9, 2010 108,139 — Todd Cox, Petitioner/Appellant, v. City of Oklahoma City, Respondent/Appellee. Proceeding to review an order of a threejudge panel of the Workers’ Compensation Court, Hon. John M. McCormick, Trial Judge. Appellant, a firefighter for the Oklahoma City Fire Department, seeks review of an order of a three-judge panel of the Workers’ Compensation Court affirming the trial court’s order which found he did not sustain an accidental personal injury arising out of and in the course of his employment. Based on our review of the record and applicable law, we find Appellant did not preserve the issue of whether his heart disease was caused or aggravated by a single event accident on October 17, 2007, and the three-judge panel’s finding that Appellant’s heart disease was not caused by cumulative stress as a firefighter is supported by competent evidence in the record. Therefore, we sustain the three-judge panel’s order. SUSTAINED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. 107,285 — Tiffany Thomas Phillips, on behalf of C.T., Plaintiff/Appellee, v. Justin Lynn Williams, Defendant/Appellant. Appeal from an order of the District Court of Tulsa County, Hon. Wilma L. Palmer, Trial Judge, awarding attorney fees and costs to Plaintiff. Plaintiff filed a petition for protective order on behalf of her minor daughter. The trial court granted an Vol. 81 — No. 25 — 9/25/2010
order of protection against Defendant and ordered him to pay the costs of the proceedings. Defendant issued a subpoena duces tecum requesting documentation from Plaintiff regarding her payments to her attorney, her future obligations for payments to her attorney, and any communications regarding payments to her attorney. The trial court granted Plaintiff’s motion to quash the subpoena. Although Defendant asserted he had no ability to pay any portion of Plaintiff’s attorney fees, the trial court found Defendant had some ability to pay. We find the trial court did not err in granting Plaintiff’s motion to quash because any evidence offered relating to Plaintiff’s ability to pay her own fees and costs is immaterial to the trial court’s assessment of Defendant’s ability to pay. We further find the trial court properly found that Defendant had a limited ability to pay the fees and costs. We also grant Plaintiff’s request for appeal-related attorney fees. AFFIRMED AND REMANDED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J. and Barnes, J., concur. 107,411 — George Allen Beers, Plaintiff/ Appellant, vs. Dorothy Hillory, Defendant, and Northland Insurance Company, a Minnesota corporation, Defendant/Appellee. Appeal from Order of the District Court of Oklmulgee County, Oklahoma, Hon. Duane Woodliff, Trial Judge, granting automobile insurance carrier’s motion for summary judgment. Beers sued NIC, claiming that NIC breached the insurance contract and its duty of good faith and fair dealing by unreasonably delaying payment of his claim for uninsured motorist (UM) benefits. Although the district court correctly disposed of some aspects of Beers’s claim, we find that disputed issues of material fact exist with respect to other aspects of that claim, precluding summary judgment. The district court correctly ruled, as a matter of law, that it was reasonable for NIC to consult with counsel before communicating the settlement offer to Beers, the terms of a release drafted by NIC were not intended to foreclose his right to assert a bad faith tort claim, and it was not unreasonable for NIC to demand a release of the contract claims before tendering payment of the UM policy limit. Otherwise, the record fails to establish that NIC was entitled to judgment as a matter of law. Reasonable persons could conclude that NIC drafted a release requesting more than it was entitled to request from Beers. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
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Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. (Division No. 3) Friday, September 10, 2010 106,595 — In Re the Marriage of Brownlow: Jacob Clark Brownlow, Petitioner/Appellee, vs. Amie Cariece Brownlow, Respondent/ Appellant. Appeal from the District Court of Canadian County, Oklahoma. Honorable Jack McCurdy, Judge. In this dissolution of marriage action, Appellant (Wife) appeals several aspects of the Decree, including denial of support alimony, payment of daycare expenses, payment of unreimbursed medical expenses, and the decision designating Appellee (Husband) as the primary custodial parent in the joint custody arrangement. Husband counterappeals, contending the court erred in denying him attorney fees in relation to the First and Second Applications for Contempt Citations, and in the evaluations and division of his retirement plans. Husband further requests appeal-related attorney fees. Wife produced no evidence to suggest she is incapable of finding full-time employment or has suffered diminished earning capacity. Wife possessed sufficient financial means to invest $21,000 in a business which would enable her to work from home. The court’s decision denying support alimony is not against the clear weight of the evidence. Because Wife is expected to transition back into the work force, she is entitled to additional support for the “actual” child care expenses she incurs in relation to employment. We find the court erred in ordering each party to pay child care expenses while the children are in his/her custody. We remand this issue to the trial court to be determined in accordance with 43 O.S. Supp. 2007 §118(E)(13). Regarding unreimbursed medical expenses, there is no showing the court’s allocation constituted an abuse of discretion and it will not be disturbed on appeal. Wife’s final issue concerns the court’s designation of Husband as the primary custodial parent in the joint custody arrangement. Based on Wife’s history of physical abuse and substance abuse, we are unable to find that the trial court’s decision was against the clear weight of the evidence or otherwise an abuse of discretion. Husband contends the court erred in determining the value of his retirement plans, resulting in inequitable division of the accounts. The valuation evidence came primarily from husband’s expert and from docu2122
ments provided by husband’s retirement plan administrator. The valuation and division of the retirement accounts appear to be neither contrary to law nor against the clear weight of the evidence. We find no evidence the trial court abused its discretion in denying Husband’s request for attorney fees. His request for appeal-related attorney fees is denied. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 107,457 — Randy D. Coleman, Plaintiff/ Appellant, vs. Board of County Commissioners for County of Garfield, a political subdivision of the State of Oklahoma, Defendant/ Appellee. Appeal from the District Court of Garfield County, Oklahoma. Honorable M. Susie Pritchett, Judge. Randy Coleman (Appellant or Coleman), seeks review of the trial court’s order granting the summary judgment motion of Garfield County Board of County Commissioners (Appellee, Employer or Sheriff’s office), on Appellant’s claims for wrongful termination, in violation of public policy. Appellant asserted a Burk-tort claim, as well as a claim for compensation pay for overtime hours. Coleman filed a wrongful termination claim, alleging the stated reason for his termination was a pretext and he was actually fired for revealing concerns for public safety and efficiency regarding jail operations, which Coleman says he discussed with members of the Jail Trust Authority only days before he was fired. Employer filed a motion for summary judgment in response to Coleman’s petition. Employer asserted Coleman failed to identify any violation of a clearly articulated Oklahoma public policy, as required for a Burk claim. Employer also claimed Coleman failed to show his termination was the result of retaliation on the part of his employer and failed to show he could pursue a Burk claim when there was an adequate remedy under 42 U.S.C. §1983. Finally, Employer argued Coleman’s comp time claim was barred, because he was an exempt employee under the provisions of the Fair Labor Standards Act (F.L.S.A.). The district court agreed with Employer, granting the summary judgment. “Summary judgment is proper only when there is no genuine issue of material fact” and the appellate court reviews “a grant of summary judgment by a de novo standard.” Prudential Ins. Co. of America v. Glass, 1998 OK 52, ¶3, 959 P.2d 586, 588. Coleman was hired as the assistant deputy jail administrator for the Garfield County detention facility in
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2005. He was an at-will employee. He was fired on August 29, 2006. Coleman and his immediate supervisor, the jail administrator, had a difficult working relationship. Shortly before he was terminated, Coleman says he expressed concerns to the Jail Trust Authority about the jail administrator’s ineffectiveness and frequent absences from work, which Coleman says made the jail less safe, but Coleman claims he compensated for the administrator’s ineffectiveness. Coleman says the sheriff was furious with his comments to the trust authority members and fired him shortly thereafter, offering a pretextual excuse for the termination. Coleman’s Burk claim is precluded, because Coleman had an adequate remedy under the provisions of the Oklahoma Whistleblower Act. 74 O.S. Supp.2009 §840-2.5; Shephard v. CompSource Oklahoma, 2009 OK 25, 209 P.3d 288 (The Supreme Court found the plaintiff in unclassified service for a state political subdivision was protected by the Oklahoma Whistleblower Act and that the act provided the remedy for her wrongful termination, not Burk). With respect to Coleman’s claim for comp time pay upon termination, Coleman claims he and the sheriff had an agreement and practice as to how his extra hours were addressed. The sheriff says there was no such agreement. Whether Coleman and the sheriff had an agreement about comp time is not something that can be answered as a matter of law on the record provided. This is a substantial controversy regarding a material fact, precluding summary judgment. The summary judgment order of the district court is affirmed with respect to Coleman’s Burk-tort claim and reversed and remanded with respect to his claim for comp time. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 107,572 — Anthony Frazier, Plaintiff/Appellant, vs. The City of Oklahoma City, a Municipal Corporation, ex rel. Woodson Community Center, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Bryan C. Dixon, Judge. Appellant (Frazier) seeks review of an order granting summary judgment to Appellee (City) in this personal injury action arising from a slip and fall. The specific language of the Governmental Tort Claims Act, 51 O.S. 2001 §155(20) and the interpretation thereof in Curtis v. Board of Educ. of Sayre Public Schools, 1995 OK 119, 914 P.2d 656, leave no other conclusion to be reached Vol. 81 — No. 25 — 9/25/2010
than the game of “HORSE” is an athletic/ sports contest where the participants seek victory, and because this game was being played on the City’s property when Frazier was injured, City is exempt from liability as a matter of law. Because the trial court properly granted the City’s Motion for Summary Judgment on the issue of the City’s governmental immunity from tort liability, we need not address Frazier’s arguments pertaining to the merits of his negligence claim. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 107,645 — Jack Grover Freeman, Plaintiff/ Appellant, vs. Hon. Brad Henry and Justin Jones, Director, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Twyla Mason Gray, Judge. Plaintiff seeks review of the trial court’s order granting the motion to dismiss of Defendants on Plaintiff’s constitutional challenge to the Oklahoma Sex Offenders Registration Act, 57 O.S. 2001 §§581, et seq. (OSORA). Plaintiff asserts OSORA is unconstitutional as applied to him, and complains the trial court erred in dismissing his action. OSORA was enacted to protect the people of this state and supports Congress’s intention that it operate as a civil regulatory scheme designed to protect the general public welfare. OSORA imposes no affirmative disability or restraint. The registration requirements of OSORA do not increase punishment for acts committed prior to its effective date. OSORA represents a civil regulatory scheme which does not violate the ex post facto proscriptions of either the United States or Oklahoma Constitutions. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 108,145 — Steven K. Culver, Petitioner, vs. Wal-Mart Stores, Inc., and Insurance Company of the State of Penn, Insurance Carrier, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioner (Claimant) seeks review of an order of a three-judge panel of The Workers’ Compensation Court (Panel) finding he did not sustain a work-related injury. Even though Claimant’s account of the alleged accidental event was uncontradicted, it was not error for the court to disbelieve Claimant’s testimony. The trial judge had the opportunity to observe the demeanor of the witness and to judge the honesty and truthfulness of the testimony presented. There is competent evidence
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in the record which supports the order denying compensability. SUSTAINED. Opinion by Bell, V.C.J., Joplin, P.J., and Mitchell, J., concur. (Division No. 4) Monday, September 13, 2010 108,174 — Plano Petroleum, L.L.C., Plaintiff/ Appellee, v. GHK Exploration, L.P., Defendant/Appellant. Appeal from the district court of Roger Mills County, Oklahoma, Hon. Charles l. Goodwin, Trial Judge. GHK Exploration, L. P. (GHK) appealed the trial court’s order granting summary judgment to Plano Petroleum, L.L.C. (Plano) on Plano’s action to quiet title in an oil and gas lease. Plano and GHK were each assigned portions of an oil and gas lease. The issue is what exactly was assigned, and to whom. Plano contended its lease covered the wellbore of the producing well and the entire 320 acres described under the original lease. GHK disagreed, contending Plano’s lease covered only the wellbore, while GHK’s lease covers everything else. We conclude the assignment to Plano transferred not only the wellbore itself and the associated personal property and equipment necessary to facilitate that working well, but also included the entire lease, upon which the wellbore was located. We therefore hold the trial court correctly interpreted the lease as a matter of law, and affirm summary judgment. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., dissents. Monday, September 20, 2010 106,905 — Dusty Sanderson and Kuhn Oil Co., Inc., Plaintiffs/Appellants, vs. Yale Oil Association, Greghol, CA. LTD Partnership, Parker E. Bloomer Family Partners, Limited Partnership, and Solon Bloomer, Defendants/ Appellees. Appeal from Order of the District Court of Woodward County, Hon. Ray Dean Linder, Trial Judge, granting judgment in favor of Defendants on the ground that Plaintiffs’ claims for an accounting and cash balancing of an underproduced interest in a well were barred by the statute of limitations. The trial court erroneously determined that the statute of limitations on Plaintiffs’ claims against the other cotenants in production from the well began to run when Plaintiffs purchased their interest
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from Defendants’ prior, underproduced cotenant. However, the statute did not begin to run as to Defendants, who remain overproduced, at least until Defendants abandoned the well and assigned their interest to a new operator. REVERSED AND REMANDED. Opinion on Rehearing from Court of Civil Appeals, Division IV, by GABBARD, P.J.; GOODMAN, J., concurs; and RAPP, J., not participating. ORDERS DENYING REHEARING (Division No. 2) Monday, September 13, 2010 107,238 — Michelle Griffith, Petitioner, v. Correctional Healthcare Co., and The Workers Compensation Court, Respondents. Petitioner’s Petition for Rehearing is hereby DENIED. 107,706 — June Dill, individually and on behalf of those similarly situated; Jennifer Anderson; Kregg Anderson; Mary Helen Atkins; Debra Auten; John Bailey; Mark Baker; Wanda Baker; Kenneth Baugh; Gary Black; Mary Black; Norita Bridges; Jottalynn Campbell; David Case; Debra Case; Lloyd Cole; Paula Cole; Lori Comeau; Ron Comeau; Barbara J. Cottrell; Heidi Eldred; Dororthy Garner; Dr. Sharon Gieselmann; Frank Gieselmann; Hope Harlan; John Hartley; Brian Jones; Myra Kirkland; Audreay Kowalczyk; Sharon Kowalczyk; Richard “Lou” Lathan; Claudia McPherson; Sharon Novak; Chris Russell; Katherine Russell; Donna Sadoski; Anita Sedillo; Mary Shattuck; Carla Short; Sandra Slayton; Bennie Spaulding; DeAnn Spaulding; Shelley Tancil; Susan Thomas; Terry Walker; Joan Evans, Plaintiffs/Appellants, vs. American Home Products Corporation; Wyeth Corporation; Wyeth Corporation, d/b/a Fort Dodge Animal Health, Defendants/Appellees. Defendants’ Petition for Rehearing is DENIED. (Division No. 3) Thursday, September 16, 2010 105,919 — In re the marriage of Doan-Uyen Thi Le, Petitioner/Appellee, vs. Thang Q. Nguyen, Respondent/Appellant. Petitioner/ Appellee’s alternative Petition for Rehearing and Request to Vacate Decision is DENIED.
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TRIAL ATTORNEY — COMMERCIAL/BUSINESS — OKLAHOMA CITY: Private firm seeks 10+ years or more trial attorney; employment or securities litigation preferred, other business/commercial experience accepted, must have 1st chair jury trial and federal court experience. Partner/Dir. level and lucrative compensation plan offered. E-mail word resume, trial experience and salary requirements to: tamar@tmsrecruiting.com.
CLASSIFIED INFORMATION
SMALL LAW FIRM HAS A POSITION AVAILABLE for an attorney with 4-8 years of litigation experience. This position will involve specialized litigation in the field of eminent domain. Qualified candidate must have extensive litigation experience. To be considered, candidate must also possess experience in drafting motions, briefs and conducting all phases of pretrial discovery. Please send resume and salary requirements to “Box K,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. AV-RATED FIRM IN THE TULSA AREA is seeking an attorney with two years experience. Applicants should have good communication skills. Please send resumes and salary requirements to “Box O,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
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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.
The Oklahoma Bar Journal
Vol. 81 — No. 25 — 9/25/2010
Vol. 81 — No. 25 — 9/25/2010
The Oklahoma Bar Journal
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