Vol 82 No 24 (Sept 17) - Oklahoma Bar Association

Transcription

Volume 82 u No. 24 u September 17, 2011
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The Oklahoma Bar Journal
Vol. 82 — No. 24 — 9/17/2011
OFFICERS & BOARD OF GOVERNORS
Deborah A. Reheard, President, Eufaula
Cathy M. Christensen, President-Elect,
Oklahoma City
Reta Strubhar, Vice President, Piedmont
Allen M. Smallwood, Immediate Past President,
Tulsa
Martha Rupp Carter, Tulsa
Charles W. Chesnut, Miami
Renée DeMoss, Tulsa
Gerald C. Dennis, Antlers
Glenn A. Devoll, Enid
Steven Dobbs, Oklahoma City
O. Chris Meyers II, Lawton
Lou Ann Moudy, Henryetta
D. Scott Pappas, Stillwater
David A. Poarch Jr., Norman
Ryland L. Rivas, Chickasha
Susan S. Shields, Oklahoma City
Roy D. Tucker, Muskogee,
Chairperson, OBA/Young Lawyers Division
events Calendar
SEPTEMBER 2011
20
OBA Law-related Education PROS Elementary Training;
8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell
(405) 416-7024
OBA Communications Committee Meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City and Doerner, Saunders, Daniel & Anderson LLP,
Tulsa; Contact: Mark Hanebutt (405) 948-7725
OBA Civil Procedure and Evidence Code Committee Meeting;
3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact:
James Milton (918) 591-5229
21
OBA Law-related Education PROS Secondary Training; 8:30 a.m.;
Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell
(405) 416-7024
Oklahoma Council of Administrative Hearing Officials; 12 p.m.;
Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212
Ruth Bader Ginsburg American Inn of Court; 5 p.m.; Oklahoma Bar
Center, Oklahoma City; Contact: Donald Lynn Babb (405) 235-1611
22
New Admittee Swearing In Ceremony; House of Representative
Chambers, State Capitol; Contact: Board of Bar Examiners (405) 416-7075
OBA Justice Commission Meeting; 2 p.m.; Oklahoma Bar Center,
Oklahoma City; Contact: Drew Edmondson (405) 235-5563
OBA Men Helping Men Support Group; 5:30 p.m.; The Center for
Therapeutic Interventions, Suite 510, Tulsa; RSVP to: Kim Reber
(405) 840-3033
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; 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, Stephanie Burke,
Brenda Card, Morgan Estes, Johnny Marie
Floyd, Matt Gayle, Brandon Haynie,
Suzi Hendrix, Misty Hill, Debra Jenkins,
Amy Kelly, Jeff Kelton, Durrel Lattimore,
Debora Lowry, Heidi McComb, Renee
Montgomery, Wanda Reece-Murray, Lori
Rasmussen, Tracy Sanders, Mark Schneidewent,
Robbin Watson, Laura Willis & Roberta Yarbrough
EDITORIAL BOARD
Editor in Chief, John Morris Williams, News
& Layout Editor, Carol A. Manning, Editor,
Melissa DeLacerda, Stillwater, Associate Editors:
Dietmar K. Caudle, Lawton; Judge Sheila
Condren, Claremore; Sandee Coogan, Norman;
Emily Duensing, Tulsa; Erin L. Means, Enid;
Pandee Ramirez, Okmulgee; Leslie D. Taylor,
Oklahoma City; Joseph M. Vorndran, Shawnee;
January Windrix, Poteau
NOTICE of change of address (which must be
in writing and signed by the OBA member),
undeliverable copies, orders for subscriptions
or ads, news stories, articles and all mail items
should be sent to the Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152-3036.
Oklahoma Bar Association (405) 416-7000
Toll Free (800) 522-8065 FAX (405) 416-7001
Continuing Legal Education (405) 416-7006
Ethics Counsel (405) 416-7055
General Counsel (405) 416-7007
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Lawyers Helping Lawyers (800) 364-7886
Mgmt. Assistance Program (405) 416-7008
Mandatory CLE (405) 416-7009
OBJ & Communications (405) 416-7004
Board of Bar Examiners (405) 416-7075
Oklahoma Bar Foundation (405) 416-7070
Vol. 82 — No. 24 — 9/17/2011
23
OBA Lawyers Helping Lawyers Assistance Program Meeting;
12 p.m.; The Oil Center, Oklahoma City; Contact: Donita Douglas
(405) 416-7028
OBA Rules of Professional Conduct Committee Meeting; 3 p.m.;
Contact: Paul Middleton (405) 235-7600
26
OBA Alternative Dispute Resolution Section Meeting; 4 p.m.;
Contact: D. Michael O’Neil Jr. (405) 239-2121
For more events go to www.okbar.org/calendar
The Oklahoma Bar Association’s official website:
www.okbar.org
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar
Association. All rights reserved. Copyright© 2008
2011 Oklahoma Bar Association.
The design of the scales and the “Oklahoma Bar Association” encircling the
scales are trademarks of the Oklahoma Bar Association. Legal articles carried
in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
The Oklahoma Bar Journal (ISSN 0030-1655) is published three times
a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and
July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard,
Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER: Send address changes to THE OKLAHOMA
BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscriptions are $55 per year except for law students registered with the
Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any
opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar
Journal Board of Editors.
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Vol. 82 — No. 24 — 9/17/2011
Oklahoma Bar Association
table of
contents
Sept. 17, 2011 • Vol. 82 • No. 24
page
2075 Events Calendar
2078 Index to Court Opinions
2080 Supreme Court Opinions
2089 Court of Criminal Appeals Opinions
2099OBA Annual Meeting
2106 Court of Civil Appeals Opinions
2144 Legal Ethics Advisory Opinion
2149 Disposition of Cases Other Than by Publication
Vol. 82 — No. 24 — 9/17/2011
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Index To Opinions Of Supreme Court
2011 OK 76 SENATOR JIM WILSON, Petitioner, v. MARY FALLIN, Governor of the State
of Oklahoma, KRIS STEELE, Speaker of the Oklahoma House of Representatives,
BRIAN BINGMAN, President Pro Tempore of the Oklahoma State Senate, PAUL
ZIRIAX, Secretary of the Oklahoma State Election Board, Respondents. No. 109,652........... 2080
Index To Opinions of Court of Criminal Appeals
2011 OK CR 24 A.R.M., Appellant, v. STATE OF OKLAHOMA, Appellee. No. J-2011-83............ 2089
2011 OK CR 25 A.R.M., Appellant, v. STATE OF OKLAHOMA, Appellee. No. J-2011-83............ 2089
2011 OK CR 23 KENT L. FAULKNER, Appellant, v. STATE OF OKLAHOMA, Appellee.
Case No. F-2010-503........................................................................................................................... 2093
2011 OK CR 22 THE STATE OF OKLAHOMA, Appellant, v. JULIA ISADORA DAVIS,
JAMES ROBERT LEMMONS, CURTIS WAYNE PRADIA, Appellee. Case No. S-20101022; S-2010-1023; S-2010-1024......................................................................................................... 2095
Index To Orders of Court of Civil Appeals
2011 OK CIV APP 96 CERTAIN UNDERWRITERS AT LLOYDS LONDON, a Foreign
Insurer, Plaintiff/Appellee, vs. B3, INC. and NRS CONSULTING ENGINEERS,
Defendants/Appellants, and THE MILL CREEK PUBLIC WORKS AUTHORITY;
JOHN D. SIKES and TAMARA J. SIKES, Husband and Wife; CONNIE SIKES, Individually and as Personal Representative of THE ESTATE OF JOHNNY F. SIKES; WILLIAM BRUNK and KATHRYN BRUNK, Husband and Wife; PHIL CONVERSE; AVA
CONVERSE; PAULA RUSH; THE JANICE EARLENE FAMILY REVOCABLE TRUST;
SHANNON SHIRLEY and REGINALD ROBBINS, Husband and Wife, Defendants.
Case No. 108,268................................................................................................................................ 2106
2011 OK CIV APP 95 CITY OF MIDWEST CITY, Petitioner, vs. CYNTHIA ANN MADDUX and the WORKERS’ COMPENSATION COURT, Respondents. Case No. 108,129........... 2108
2011 OK CIV APP 94 NATIONAL AMERICAN INSURANCE COMPANY, an Oklahoma
corporation, Plaintiff/Appellee, vs. GERLICHER COMPANY, LLC, an Oregon limited liability company; and OK LAKES, LLC, a Washington Limited Liability company, Defendants/Appellants, and PINION CONSTRUCTION, INC., an Oklahoma
corporation, Defendant. Case No. 108,114..................................................................................... 2110
2011 OK CIV APP 93 THE STATE OF OKLAHOMA ex rel. CRAIG LADD, DISTRICT
ATTORNEY, Plaintiff/Appellee, vs. $457.02 in U.S. currency, Defendant, and EMBRY
JAY LOFTIS, Appellant. Case No. 107,350..................................................................................... 2116
2011 OK CIV APP 92 IN RE THE MARRIAGE OF: ANNOTRA GUYTON, Petitioner/
Appellee, vs. VICTOR GUYTON, Respondent/Appellant. Case No. 107,275......................... 2119
2011 OK CIV APP 97 DEYO PADDYAKER and DONNA PADDYAKER, individuals,
Plaintiffs/Appellants, vs. JUANITA GRIFFITH and NEWCASTLE PUBLIC WORKS
AUTHORITY, Defendants/Appellees. Case No. 108,276............................................................ 2124
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Vol. 82 — No. 24 — 9/17/2011
2011 OK CIV APP 99 RICHARD BROWN, Plaintiff/Appellant, vs. OKLAHOMA FARM
BUREAU MUTUAL INSURANCE COMPANY and AG SECURITY INSURANCE
COMPANY, Defendants/Appellees. Case No. 108,726............................................................... 2126
2011 OK CIV APP 100 PATRICIA BOWERS EDWARDS, Individually and as Natural
Mother and Next Friend of ROBERT DREW BOWERS, an Incapacitated Person,
Plaintiff/Appellant, vs. BANCFIRST, a National Banking Association, Defendant/
Appellee, and REX URICE, an individual; THE ROBERT S. BOWERS AND ELOISE
C. BOWERS FOUNDATION, a private foundation; JOHN C. DUTY, an individual;
MICHAEL A. BICKFORD, an individual; PERSONAL NURSING CARE, INC., an
Oklahoma Corporation, Defendants. Case No. 109,095............................................................... 2129
2011 OK CIV APP 98 ANTONIO A. BRYSON, Plaintiff/Appellant, vs. OKLAHOMA
COUNTY ex rel. OKLAHOMA COUNTY DETENTION CENTER, Defendant/Appellee. Case No. 108,534......................................................................................................................... 2133
The Oklahoma Bar Association Family Law Section seeks nominees
for the following awards to be presented at its annual meeting on
November 3, 2010.
Outstanding Family Law Attorney for 2011
Outstanding Family Law Judge for 2011
The Phil and Noel Tucker Outstanding Guardian Ad Litem
Award for 2011
Outstanding Family Law Mediator for 2011
Nominees should have made significant contributions to the practice
of family law in Oklahoma in 2011, or over an extended period of time.
Please submit your nominations and a brief description of the reasons for
your nomination by October 7, 2011, to: OBA Family Law Section,
Nominations and Awards, c/o David A. Tracy, 1701 S. Boston Ave.,
Tulsa, Oklahoma 74119 (david.tracy@nwtlaw.com).
Vol. 82 — No. 24 — 9/17/2011
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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)
2011 OK 76
SENATOR JIM WILSON, Petitioner, v.
MARY FALLIN, Governor of the State of
Oklahoma, KRIS STEELE, Speaker of the
Oklahoma House of Representatives, BRIAN
BINGMAN, President Pro Tempore of the
Oklahoma State Senate, PAUL ZIRIAX,
Secretary of the Oklahoma State Election
Board, Respondents.
No. 109,652. September 1, 2011
PROCEEDING TO REVIEW SENATE
REDISTRICTING ACT
¶0 Petitioner seeks review of the State Senate
Redistricting Act of 2011, pursuant to the section 11C, Article V of the Oklahoma Constitution. Petitioner alleges the Act does not comply
with the apportionment formula in section 9A,
Article V of the Oklahoma Constitution. This
Court finds that the petitioner has failed to
show that the State Senate Redistricting Act of
2011 does not comply with the provisions of
section 9A.
STATE SENATE REDISTRICTING ACT OF
2011 COMPLIES WITH SECTION 9A,
ARTICLE V, OKLAHOMA
CONSTITUTION.
Mark Hammons, Oklahoma City, Oklahoma,
for petitioner Senator Jim Wilson.
Neal Leader, Nancy Zerr, Assistant Attorneys
General, for respondents Governor Mary Fallin
and Secretary Paul Ziriax.
Robert McCambell, Lee Slater, Oklahoma City,
Oklahoma, for respondent President Pro Tempore Brian Bingman.
Andrew Lester, Edmond, Oklahoma, for
respondent Speaker Kris Steele.
TAYLOR, C.J.
¶1 This is a proceeding to review the State
Senate Redistricting Act of 2011 (the Redistricting Act), Enrolled Senate Bill 821, sections 2
through 6, signed by the Governor on May 20,
2011. Two threshold first impression legal questions are presented: (1) What part, if any, of the
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apportionment formula in section 9A, Article V
of the Oklahoma Constitution1 remains in
effect, and 2) What is the extent of a review
proceeding authorized in section 11C, Article V
of the Oklahoma Constitution? Our answer to
the first question is that the population-based
aspect of the apportionment formula in section
9A remains in effect, while the county-based
aspect of the apportionment formula is invalid.
Our answer to the second question is that the
extent of a review proceeding authorized by section 11C is limited by section 11D to a review for
compliance with section 9A’s population apportionment formula. Having reviewed the filings,
contentions, and arguments herein, we determine and hold that the Senate Redistricting Act
of 2011 complies with the population apportionment formula in section 9A, Article V of the
Oklahoma Constitution.
¶2 Oklahoma State Senator Jim Wilson, a
resident of Cherokee County, Oklahoma, filed
a petition pursuant to section 11C for review of
the Redistricting Act.2 Senator Wilson named
as respondents Mary Fallin, the Governor of
Oklahoma;3 Kris Steele, the Speaker of the
Oklahoma House of Representatives; Brian
Bingman, President Pro Tempore of the Oklahoma Senate; and Paul Ziriax, Secretary of the
Oklahoma Election Board. As required by section 11C, Senator Wilson filed a proposed
apportionment plan that he contends more
closely complies with Article V than does the
Redistricting Act.
¶3 Senator Wilson alleges that the Redistricting Act does not comply with section 9A
because it “fails to create Senate districts which
as nearly as possible provide for compactness,
political units, historical precedents, economic
and political interests.” Senator Wilson does
not explicitly identify every district in the
Redistricting Act that he contends is not in
compliance with section 9A but claims that he
has identified such districts by the maps provided in his appendix.4 Senator Wilson’s petition prays that this Court direct the Apportionment Commission to modify the Redistricting
Act “to achieve conformity with” the Oklahoma Constitution.
Vol. 82 — No. 24 — 9/17/2011
¶4 Senator Wilson points out what he considers the primary differences in the Redistricting
Act and his proposed apportionment plan. He
states that the largest district in the Redistricting Act has 78,943 persons and the largest district in his plan has 78,929 persons — a difference of fourteen persons —5 and that the smallest district in both plans has 77,350 persons.
Based on a method that compares a district’s
boundaries to a circle, Senator Wilson posits
that the Redistricting Act’s average district
compactness is 58.9% and that his plan’s average district compactness is 65.5%. Senator Wilson points out that the Redistricting Act splits
counties eighty times but that his plans split
counties only sixty-two times.
¶5 Respondent Paul Ziriax, Secretary of the
Oklahoma State Election Board, filed a preliminary statement, contending that the review of
legislative apportionment provided in section
11C is limited in section 11D to a review for
“compliance with the formula as set forth in
this Article.” Secretary Ziriax questions whether there is a manageable standard for adjudication of challenges brought under section 11C
because a large part of section 9A was declared
unconstitutional in Reynolds v. State Election
Bd., 233 F.Supp. 323, 329 (W.D.Okla. 1964), and
then reinstated in an emasculated form in Ferrell v. State ex rel. Hall, 339 F.Supp. 73, 74
(W.D.Okla. 1972). Secretary Ziriax asks this
Court to address whether this proceeding is a
superficial contest between the Legislature’s
redistricting map and Senator Wilson’s proposed redistricting map.6 Secretary Ziriax urges
that this matter be quickly resolved so that his
office might adequately prepare for the 2012
election cycle.
¶6 Respondent Brian Bingman, President Pro
Tempore of the Oklahoma State Senate, in his
recommendations to this Court, also advances
threshold issues: what is the proper standard
or test for determining whether apportionment
legislation complies with Article V as required
by section 11D; whether and to what extent
section 9A is viable after being declared unconstitutional in Reynolds v. State Election Bd. and
then declared partially constitutional in Ferrell
v. State ex rel. Hall; whether population is the
only mandatory criterion in section 9A; which
issues presented herein are justiciable; and
what is the Court’s role in this review proceeding. The President Pro Tempore also suggests a
procedure for taking evidence in this proceeding, if needed. Respondent Kris Steele, Speaker
Vol. 82 — No. 24 — 9/17/2011
of the Oklahoma House of Representatives,
filed a report adopting the procedure suggested by the President Pro Tempore.
¶7 Responding to the respondents’ suggestions, Senator Wilson admits that he is not
asserting a claim under the Voting Rights Act,
42 U.S.C. §§ 1973, et seq.; states there is no need
for a briefing schedule in this proceeding; and
opposes any order issued by this Court that
would allow the Election Board to prepare for
the 2012 election under the Redistricting Act.
The President Pro Tempore asks to file a brief
on issues relevant to the 2012 election in reply
to Senator Wilson.
¶8 We agree with the respondents that we
must address, for the first time, the application
of sections 9A, 11C, and 11D of the apportionment provisions in Article V of the Oklahoma
Constitution. Sections 9A, 10A, and 11A through
11E were added to Article V by State Question
416, Referendum Petition No. 142, adopted at a
special election held May 26, 1964. The 1963 Legislature proposed State Question 416 in Senate
Joint Resolution No. 4, 1963 Okla. Sess. Laws,
p. 736, to establish constitutional reapportionment formulas for both houses. In the joint
resolution, the Legislature resolved that county-based apportionment, with consideration
given to “the federal analogy, history, economics, custom, territory, and similar and related
factors,” was a proper method of providing
adequate and fair representation of groups
with like political, social, and economic interests and of avoiding divesting segments of the
population of their representation.
¶9 Section 9A provides for forty-eight state
senate districts to be based on the most recent
federal decennial census. It provides that each
of the nineteen most populous counties constitutes a senate district and the fifty-eight less
populous counties be joined into twenty-nine
two-county districts. It further provides that
population, compactness, area, political units,
historical precedents, economic and political
interests, contiguous territory, and other factors are to be considered to the extent feasible
in apportioning the state senate. Section 9A
fixes the term of the senate office as four years
with one-half of the senators elected at each
general election.
¶10 Section 11C authorizes any qualified
voter to petition the Supreme Court for review
of any apportionment by the Legislature or the
Apportionment Commission7 within sixty days
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from the filing thereof. It provides that the petition must set forth a proposed apportionment
more nearly in accordance with Article V and
requires that the review petition be given precedence over other cases pending before the
Supreme Court. Section 11D directs that this
Court “shall determine whether or not the
apportionment order of the Commission or act
of the legislature is in compliance with the formula as set forth in this Article. . . .” Section
11D further directs the Supreme Court to
remand the matter to the Apportionment Commission if the Court determines that the apportionment order or act is not in compliance with
the formula as set forth in Article V.
¶11 When the county-based apportionment
formula in section 9A was submitted to a vote
of the people, many states’ legislative districts
were based on units of local government and
rural/urban distinctions. Several states, including Oklahoma, had failed to reapportion and
redistrict for decades. Many states were
involved in litigation challenging the legislative apportionment. The state courts had
declined to resolve apportionment complaints,
considering them to be nonjusticiable political
matters, and many state apportionment
schemes were challenged in federal court.
Then the United States Supreme Court handed
down its opinion in Baker v. Carr, 369 U.S. 186,
82 S.Ct. 691, 7 L.Ed.2d 663 (1962), abandoning
the established rule that legislative apportionment and congressional districts are purely
legislative or political matters. Baker v. Carr
determined that the Tennessee voters presented a justiciable claim under the Equal Protection Clause of the Fourteenth Amendment.
Three decades later, the United States Supreme
Court made it clear that state courts may exercise jurisdiction over legislative apportionment
and that federal courts should defer to state
action over questions of state apportionment
by state legislatures and state courts. Growe v.
Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d
388 (1993).
¶12 Two years after Baker v. Carr, the opinion
in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12
L.Ed.2d 506 (1964), determined the standard for
implementing Baker v. Carr. In Reynolds v. Sims,
Alabama residents and taxpayers alleged that
the state legislature had failed to reapportion
since the beginning of the twentieth century, that
the apportionment among the counties was
uneven, and that the voters were victims of serious discrimination under the Equal Protection
2082
Clause of the Fourteenth Amendment and the
Civil Rights Act, 42 U.S.C. § 1983. Recognizing
that the right to vote is fundamental in our free
and democratic society, the Reynolds opinion
focused on the impermissible impairment of the
constitutionally protected right to vote. The
Reynolds opinion determined that population,
and not location, must be the controlling criterion for judgment in legislative apportionment
controversies, 377 U.S. at 568, 84 S.Ct. at 1384,
and held that “as a basic constitutional standard, the Equal Protection Clause requires that
the seats in both houses of a bicameral state
legislature must be apportioned on a population basis.” Id. The Reynolds opinion concluded
that an apportionment plan based on political
subdivisions of the state is impermissible under
the Equal Protection Clause. 377 U.S. at 576, 84
S.Ct. at 1389. Emphasizing that the overriding
objective of apportionment must be substantial
equality of population so that each vote is
equal in weight to every other vote, the Reynolds opinion recognized that some deviation in
population may be permissible, but factors
such as history and economic or group interests may not be used to justify population disparities or to stray from the equal-population
or one-man-one-vote principle. 377 U.S. at 579580, 84 S.Ct. at 1391. Rejecting any apportionment scheme not controlled by population,8 the
Reynolds opinion explained that it makes no difference under the Equal Protection Clause
whether the apportionment scheme is established by statute or state constitution. 377 U.S. at
584, 84 S.CT. at 1393.
¶13 Oklahoma had been involved in apportionment litigation before a three-judge panel
in the federal district court for several years
when the United States Supreme Court handed
down its opinion in Reynolds v. Sims. In light of
Reynolds v. Sims, the three-judge panel ruled
that the legislative apportionment provisions
in section 9A are null and void. Reynolds v. State
Election Bd., 233 F.Supp. 323 (1964). The threejudge panel specifically left standing only the
provision in section 9A that established the
forty-eight senatorial offices with the four-year
terms and the provision that one-half of the
senatorial offices will be elected every two years.
233 F.Supp at 329. The three-judge panel further
ruled that the provisions in sections 11A through
11E, establishing the Apportionment Commission and providing for Supreme Court review
and exercise of original jurisdiction, do not conflict with the federal constitution and are valid.
Id. In 1972, another three-judge panel in Ferrell v.
Vol. 82 — No. 24 — 9/17/2011
State of Oklahoma, 339 F.Supp. 73, 76 (1972),
reconsidered the validity of the provisions in
section 9A and ruled that it is permissible, but
not mandatory, for the Legislature to consider
the factors of compactness, area, political units,
historical precedents, economic and political
interests, and contiguous territory set out in
section 9A in apportioning legislative districts.
As will be discussed, we reach a conclusion
that is similar in several respects to the conclusions reached in Reynolds v. State Election Bd.
and Ferrell v. State of Oklahoma.
¶14 Although we have discussed the apportionment provisions of Article V in deciding a
challenge to congressional redistricting, Alexander v. Taylor, 2002 OK 59, 51 P.3d 1204, this is
the first time, since its adoption, we have
addressed the validity and meaning of the language in sections 9A, 11C, and 11D of Article V.
We construe the relevant constitutional provisions mindful of the general rules that a constitutional provision must be construed and
applied according to the intent of the people
adopting the provision, and absent ambiguity,
the intent must be determined from the language. Okla. Elec. Coop., Inc. v. Okla. Gas and
Elec. Co., 1999 OK 35, ¶7, 982 P.2d 512, 514.
¶15 As to section 9A, it is clear that the county-based apportionment formula is rendered a
nullity by the basic constitutional standard that
state legislative districts must be based on
equality in the total population under the
Equal Protection Clause of the Fourteenth
Amendment and Reynolds v. Sims, 377 U.S. at
533, 84 S.Ct. at 1362, and its progeny. There is
no doubt that the voters intended “compactness, area, political units, historical precedents,
economic and political interests, and contiguous territory” in section 9A to require that
local interests be considered in pairing the
lesser-populated counties. However, Reynolds
v. Sims teaches that if “divergences from a
strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviation
from the equal-population principle are constitutionally permissible. . . .9 377 U.S. at 579, 84
S. Ct. at 1391. While the language defining the
county-based aspect of the apportionment formula must be severed, the other provisions in
section 9A can be left standing.
¶16 The presumption that legislation is constitutional and should be sustained against
challenge where it is possible to do so applies
to constitutional provisions. Local 514 Transport
Vol. 82 — No. 24 — 9/17/2011
Workers Union of America v. Keating, 2003 OK 110,
¶15, 83 P.2d 835, 839. Where, as here, state constitutional language is contrary to the Equal
Protection Clause of the Fourteenth Amendment
to the United States Constitution, the invalid
language should not nullify the valid provisions,
City of Spencer v. Rayburn, 1971 OK 38, ¶6, 483
P.2d 735, 737, if they are severable. Elk City v.
Johnson, 1975 OK 97, ¶12, 537 P.2d 1215, 121.
Unless we determine that the valid provisions
are dependent upon and inseparably connected
to the invalid provision or that the valid provisions standing alone are incomplete and incapable of being executed, they are severable. 75
O.S.2001, § 11a; In re Application of Okla. Dept. of
Transp., 2002 OK 74, ¶27, 64 P.3d 546, 553.
¶17 The invalid language defining the countybased apportionment formula is presumed to be
severable, In re Application of Okla. Dept. of
Transp., at ¶31, and no party argues otherwise.
Accordingly, we find the language defining the
county-based apportionment formula in section
9A to be severable without the necessity of a
severability analysis.
¶18 The remaining language in section 9A
provides a population appropriation formula
for apportioning senate districts. A population
apportionment formula necessarily requires
equality in the state’s total population so that
the forty-eight senate districts have only minimal deviation from the ideal district population
determined by the most recent Federal Decennial Census. However, we recognize that local
interest factors such as compactness, political
units, and economic and political interests are
considered under the totality of the circumstances principle in racially-motivated gerrymander
and minority-vote dilution claims under the federal Voting Rights Act, 42 U.S.C. §§ 1973, et seq.,
which are not presented herein.
¶19 The opinions in Reynolds v. Sims and its
progeny do not affect sections 11C and 11D.
Notwithstanding, we consider sections 11C
and 11D because they control this proceeding.
Section 11C reads:
Any qualified elector may seek a review
of any apportionment order of the Commission, or apportionment law of the legislature, within sixty days from the filing
thereof, by filing in the Supreme Court of
Oklahoma a petition which must set forth
a proposed apportionment more nearly in
accordance with this Article. Any apportionment of either the Senate or the House
2083
of Representatives, as ordered by the Commission, or apportionment law of the legislature, from which review is not sought
within such time, shall become final. The
court shall give all cases involving apportionment precedence over all other cases
and proceedings; and if said court be not in
session, it shall convene promptly for the
disposal of the same.
Section 11D reads:
Upon review, the Supreme Court shall
determine whether or not the apportionment order of the Commission or act of the
legislature is in compliance with the formula as set forth in this Article and, if so, it
shall require the same to be filed or refiled
as the case may be with the Secretary of
State forthwith, and such apportionment
shall become final on the date of said writ.
In the event the Supreme Court shall determine that the apportionment order of said
Commission or legislative act is not in
compliance with the formula for either the
Senate or the House of Representatives as
set forth in this Article, it will remand the
matter to the Commission with directions
to modify its order to achieve conformity
with the provisions of this Article.
¶20 Reading section 11C in conjunction with
section 11D,10 the review proceeding in this
Court authorized in section 11C is limited to a
claim that the apportionment does not comply
with the population formula in section 9A. Section 11C contemplates that the petitioning
qualified voter will demonstrate in the proposed apportionment 1) where the challenged
apportionment does not comply with section
9A’s apportionment formula and 2) where the
proposed apportionment is more nearly in
accordance with section 9A’s apportionment
formula. Section 11D contemplates that this
Court will consider the petition, the proposed
apportionment, and the challenged apportionment legislation for compliance with Article V
as a matter of law. Our reading of sections 11C
and 11D leaves the fact-intensive challenges to
legislative apportionment and congressional
districts, such as racially-motivated gerrymander claims, minority-vote dilution claims, and
other voter discrimination claims under the
Equal Protection Clause of the Fourteenth
Amendment or the Voting Rights Act, 42
U.S.C.§§ 1973 et seq., to the plenary jurisdiction
of the district courts.
2084
¶21 In his initial filings, Senator Wilson
asked for evidentiary and briefing schedules,
asserting that no deference may be given to the
senate districts in the Redistricting Act and that
the respondents must bring forth evidentiary
support for the districts. This assertion is incorrect. Every statute is presumed constitutional.
Local 514 Transport Workers Union of America v.
Keating, 2003 OK 110, ¶15, 83 P.3d 835, 839. We
treat the State Senate Redistricting Act of 2011
in Enrolled Senate Bill 821 at sections 2 through
6, to be codified as sections 80.35 through
80.35.4 of Title 14 of the Oklahoma Statutes, as
valid statutes until their nonconformity to the
constitution is clearly shown. TXO Production
Corp. v. Oklahoma Corp. Comm., 1992 OK 39,
¶7, 829 P.2d 964, 968. Further, the cases Senator Wilson relied on, United States v. Village of
Port Chester, 704 F.Supp.2d 411(S.D.N.Y. 2010),
and Hunt v. Cromartie, 526 U.S. 541, 119 S.Ct.
1545, 143 L.Ed.2d 731 (1999), are inapposite.
Village of Port Chester was a vote dilution challenge to local legislative districts brought on
behalf of the Hispanic vote under the federal
Voting Rights Act. In that case, the federal district court considered the list of factors set out
by the Senate Judiciary Committee as guideposts in the broad-based inquiry of the totality of the circumstances under the Voting
Rights Act. Hunt was a challenge to raciallymotivated gerrymander in drawing a North
Carolina congressional district. In Hunt, the
United States Supreme Court recognized that
assessing motive requires the court to inquire
into all available circumstances and evidence.
This case does not present, and in section 11C
review proceedings we do not consider,
minority-vote dilution claims or raciallymotivated gerrymander claims, nor do we
assess legislative motive.11
¶22 Turning to the challenge to the Redistricting Act, Senator Wilson effectively agrees
that the apportionment therein is based on
population, but he complains that it was drawn
with little or no regard for compactness and
local political and economic interests. Senator
Wilson admits that the district with the most
population (78,943) in the challenged act
includes only fourteen more people than his
most populous district with 78,929. He also
admits that the least populous district in both
the challenged act and his proposed plan has
77,350 people. Senator Wilson makes no showing that the challenged act does not comply
with the population formula in section 9A.
Vol. 82 — No. 24 — 9/17/2011
¶23 We conclude that the population apportionment formula set out in section 9A, Article
V, Oklahoma Constitution, remains in effect.
We also conclude that a review proceeding
authorized by section 11C, Article V, Oklahoma
Constitution, is limited by section 11D, Article
V, Oklahoma Constitution, to a review for compliance with the population apportionment formula set out in section 9A, Article V, Oklahoma
Constitution, as a matter of law. We find the
petitioner has failed to clearly demonstrate that
the presumed constitutional State Senate Redistricting Act of 2011 does not comply with section
9A, Article V of the Oklahoma Constitution. We
determine and hold that the State Senate Redistricting Act of 2011 complies with the population
apportionment formula set out in section 9A,
Article V of the Oklahoma Constitution.
STATE SENATE REDISTRICTING ACT OF
2011 COMPLIES WITH SECTION 9A,
ARTICLE V, OKLAHOMA
CONSTITUTION.
Taylor, C.J., Colbert, V.C.J., (by separate writing), and Kauger, Watt, Winchester, Edmondson, Reif, Combs, and Gurich, JJ., concur.
1. All section references are to Article V of the Oklahoma Constitution unless otherwise stated.
2. Senator Wilson initiated this proceeding as a qualified elector,
not in his official capacity as a state senator. Section 11C, Article V of
the Oklahoma Constitution authorizes any qualified elector to petition
the Supreme Court for a review of apportionment legislation.
3. The Honorable Mary Fallin, Governor of the State of Oklahoma,
moved to be dismissed. The Governor’s motion to dismiss is rendered
moot by our resolution of this proceeding.
4. Senator Wilson explicitly identifies his senate district 3 as a
redrawn district in the Redistricting Act that does not comply with
section 9A. Senator Wilson alleges that the Redistricting Act unnecessarily divided three counties in drawing district 3 and removed the
heart of the Cherokee Nation from district 3.
5. Based on the 2010 United States census, Oklahoma has a population of 3,751,351 persons. United States Census 2010, 2010 Census
Data, http://2010.census.gov/2010census/data/ (last visited Aug. 2,
2011). Dividing the state’s total population by the total senate districts,
the ideal senate district would contain 78,153 persons.
6. Secretary Ziriax also asks this Court to address whether tribal
boundary lines are a proper consideration, particularly since the
Cherokee Nation’s Indian country is a patchwork quilt collection of
trust land and restricted allotments scattered throughout fourteen
counties. Because in this special review proceeding before this Court,
pursuant to § 11C, art. V, Okla. Const., we conclude that the constitutional apportionment formula must be based on population and that
the Redistricting Act complies with the population-based formula, we
need not address whether tribal areas or historic precedents should be
considered in apportionment.
7. Section 11A establishes the Apportionment Commission and provides for it to act whenever the Legislature refuses to make the apportionment within ninety legislative days after convening the first regular
session of the Legislature following the Federal Decennial Census.
Amended in 2010, a seven member Bipartisan Commission on Legislative Apportionment replaced the Apportionment Commission. State
Question 748, Legislative Referendum 349, adopted November 2, 2010.
8. In addition to Reynolds, in 1964, the Supreme Court struck down
the legislative apportionment of several other states, such as Maryland
in Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct.
1429, L.Ed.2d 595 (1964); Virginia in Davis v. Mann, 377 U.S. 678, 84 S.Ct.
1441, 12 L.Ed.2d 609 (1964); and Colorado in Lucas v. Forty-Fourth General
Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), for failing to
Vol. 82 — No. 24 — 9/17/2011
be population-based contrary to the Equal Protection Clause of the Fourteenth Amendment. Also, the Reynolds opinion noted that suits had been
instituted challenging the apportionments in thirty-four states, 84 S.Ct. at
1378-1379, n. 30, and that it had remanded several cases to the courts
below for reconsideration in light of Baker v. Carr, listing Scholle v. Hare,
369 U.S. 429, 82 S.Ct. 910, 8 L.Ed.2d 1 (challenging a Michigan apportionment), and WMCA, Inc. v. Simon, 370 U.S. 190, 82 S.Ct. 1234, 8 L.Ed.2d 430
(challenging a New York apportionment).
9. We note that the United States Supreme Court has recognized
some flexibility in drawing state legislative districts based on equality
in the total population. Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29
L.Ed.2d 399 (1971). In doing so, the Court rejected application of local
interests to justify deviations from population for apportionment of
state legislative districts. The Court recognized that “deviations from
population equality must be justified by legitimate state interests” and
that “state interests offered to justify deviations from population
equality” must be carefully scrutinized. 403 U.S. at 185, 91 S.Ct. at
1906-1907.
10. General rules of statutory construction are used in construing
the constitution such as the rule that provisions in pari materia should
be construed together. Cowart V. Piper Aircraft Corp., 1983 OK 66, ¶4,
665 P.2d 315, 317.
11. We hereby deny Senator Wilson’s motion for a briefing schedule and evidentiary hearing, even though after filing the motion, he
admitted there was no need for a briefing schedule.
COLBERT, V.C.J., with whom Watt, Combs,
and Gurich, JJ. join, concurring
¶1 By an election held May 26, 1964, the
people of Oklahoma added a formula for redistricting in Section 9A of Article V of the Oklahoma Constitution. The formula provided for
nineteen Senate districts with one Senator from
each of the most populous counties along with
twenty-nine two-county districts from the fiftyeight less populous counties. It also listed several social, geographic, and political factors to
be considered by providing that “[i]n apportioning the State Senate, consideration shall be
given to population, compactness, area, political units, historical precedents, economic and
political interests, contiguous territory, and
other major factors, to the extent feasible.”
Okla. Const. Art. V, § 9A.
¶2 Less than one month after that election,
the United States Supreme Court handed down
Reynolds v. Simms, 377 U.S. 533 (1964), which
established that in order to pass constitutional
muster, population rather than location must
be the predominate consideration in the
apportionment of electoral districts. Reynolds
specifically rejected an approach in which
population is the only factor, noting that
“[m]athematical exactness or precision is
hardly a workable constitutional requirement.” 377 U.S. at 577. The Reynolds Court
acknowledged the legitimate function of such
factors as compactness, area, political units,
historical precedents, and economic and political interests when it stated:
A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for
2085
compact districts of contiguous territory in
designing a legislative apportionment
scheme. Valid considerations may underlie
such aims. Indiscriminate districting, without any regard for political subdivision or
natural or historical boundary lines, may
be little more than an open invitation to
partisan gerrymandering. . . . Whatever the
means of accomplishment, the overriding
objective must be substantial equality of
population among the various districts, so
that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.
Id. at 578-579.
¶3 By today’s decision, this Court strikes
only the county-based aspect of the Section 9A
formula to meet the requirement of Reynolds
that population be the controlling criterion in
evaluating a redistricting plan. The remaining
“population apportionment formula” includes
the Section 9A factors of “compactness, area,
political units, historical precedents, economic
and political interests, contiguous territory,
and other major factors.”
¶4 Today’s decision recognizes that factors
other than population can be the tool for
achieving voter equality as well as the tool for
its circumvention. The problem is not in the
tool. Rather it is in its application. That is why
those factors continue to be utilized by states in
their constitutional and statutory redistricting
schemes1 and by state and federal courts in
evaluating whether a redistricting plan unconstitutionally furthers invidious discrimination.
See, e.g., Voinovich v. Quilter, 507 U.S. 146
(1993)(applying several of the factors listed in
Section 9A to a claim of racial gerrymandering).
The proper focus of redistricting and judicial
review of redistricting plans is voter equality
rather than mathematical uniformity of population among the districts because “the achieving
of fair and effective representation for all citizens is . . . the basic aim of legislative apportionment.” Reynolds, 377 U.S. at 565-566.
¶5 In this matter, no claim of gerrymandering based on race or economic status has been
asserted. The claim is that political gerrymandering was involved in the redistricting. In
2004, the United States Supreme Court in Vieth
v. Jubelirer, 541 U.S. 267, held all claims of
political gerrymandering to be nonjusticiable
in federal court because no judicially discernable and manageable standards for adjudicat2086
ing such claims exist. The clear implication of
Vieth is that if a state court has judicially discernable and manageable standards, it is justified in adjudicating claims of political gerrymandering. Those standards, however, are
derived from a states statutory and/or constitutional scheme for redistricting. By contrast,
claims of racial or economic gerrymandering
are subject to strict scrutiny under the 14th
Amendment.
¶6 In this political gerrymandering claim, the
problem is that the fact specific factors listed in
Section 9A are not sufficient to provide discernable and manageable standards by which this
Court may adjudicate a claim of political gerrymandering in an Article V, Section 11C review
proceeding. However, the factors are sufficient
to guide the District Court in making the fact
determinations necessary to determine whether political gerrymandering has occurred or
whether some form of voter discrimination has
been perpetrated in contravention of the 14th
Amendment or the Voting Rights Act.
1. New Jersey, for example, has a special commission to establish
Congressional redistricting. N.J. Const. Art.II, § 2. Iowa has very specific protections against gerrymandering. Iowa’s redistricting standards mandate the use of a set of factors that include population,
compactness, area, political units, political interests, and contiguous
territory. Iowa Code § 42.4.
Central Oklahoma Alumni Chapter
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1st Meeting
October 6th 2011, 6 pm
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1 Hour Free CLE
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8:30-8:55
Registration & Continental Breakfast
8:55-9
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9-9:50
Recent Updates in the Adoption Code
Tina Peot, of Petersen, Henson, Meadows, Pecore & Peot PC, Norman.
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HB 1603, "Deployed Parents Custody and Visitation Act"
Kathryn McClure, Legal Assistance Attorney, Office of the Staff Judge Advocate, U.S. Army
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11:40-1
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The Money Trap: Financial Obstacles Victims Face When Ending a Relationship
Robin Wilson, Staff Attorney, Legal Aid Services of Oklahoma Inc.
2:55-3:45
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Travis Pickens, Ethics Counsel, Oklahoma Bar Association
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2087
LAS VEGAS/SEMINOLE COUNTY BAR CLE
Location: Paris Hotel, Las Vegas, Nevada
FRIDAY, NOVEMBER 11, 2011
8 – 8:30 a.m.
REGISTRATION & BREAKFAST
8:30 – 10:15 a.m.
HOW JUDGES DECIDE HARD CASES
Gordon R. Melson, Former Judge, D.A. and Practicing Attorney
10:15 – 10:30 a.m.
BREAK
10:30 – 11:20 a.m.
FAMILY LAW - EQUITABLE DIVISION of MARITAL ASSETS
Robert Spector, Emeritus Professor of Law, OU College of Law
11:30 a.m. – 12:20 p.m.
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Robert Spector, Emeritus Professor of Law, OU College of Law
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1:30 – 2:30 p.m.
GETTING YOUR MESSAGE ACROSS (and ADMITTED): EFFECTIVE USE of
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2:30 – 2:35 p.m.
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2088
Vol. 82 — No. 24 — 9/17/2011
Court of Criminal Appeals Opinions
2011 OK CR 24
2011 OK CR 25
A.R.M., Appellant, v. STATE OF
OKLAHOMA, Appellee.
SUMMARY OPINION
No. J-2011-83. September 8, 2011
ORDER GRANTING APPLICATION
FOR PUBLICATION
¶1 On June 23, 2011, a Summary Opinion
was handed down in the above-styled proceeding. The opinion, among other things,
construed portions of the Oklahoma Youthful
Offender Act. On July 1, 2011, the State of Oklahoma, by and through David W. Prater, Oklahoma County District Attorney, and Jennifer
Chance, Oklahoma County Assistant District
Attorney, filed an Application for Published
Opinion in the above-referenced matter.
¶2 The Court GRANTS the State’s request
for publication, and the Summary Opinion, as
corrected, is hereby released for publication.
¶3 IT IS THEREFORE THE ORDER OF
THIS COURT that the Summary Opinion, as
corrected and paragraphed, is hereby AUTHORIZED FOR PUBLICATION.
¶4 The Clerk of this Court is directed to
transmit a copy of this order to the Court Clerk
of Oklahoma County; the District Court of
Oklahoma County, the Honorable Larry Jones,
Special Judge; the State of Oklahoma, Appellant; and counsel of record.
¶5 IT IS SO ORDERED.
¶6 WITNESS OUR HANDS AND THE
SEAL OF THIS COURT this 8th day of September, 2011.
/ s/ ARLENE JOHNSON,
Presiding Judge
/ s/ DAVID B. LEWIS,
Vice Presiding Judge
/s/ GARY L. LUMPKIN, Judge
/ s/ CHARLES A. JOHNSON,
Judge
/s/ CLANCY SMITH, Judge
ATTEST:
Michael S. Richie
Clerk
Vol. 82 — No. 24 — 9/17/2011
A. JOHNSON, PRESIDING JUDGE:
¶1 On September 2, 2010, Appellant, A.R.M.,
was charged as a Youthful Offender with
Count 1, Shooting With Intent to Kill and
Count 2, Possession of a Firearm in Oklahoma
County Case No. CF-2010-5909. Appellant was
16 years, 11 months and 29 days old at the time
the offense was committed. On September 9,
2010, the State filed a Motion to Sentence
Appellant as an Adult. On November 18, 2010,
the State filed an Amended Information, adding Count 3, Conspiracy to Commit a Felony,
to the original charges. In an order entered
January 28, 2011, the District Court of Oklahoma County, the Honorable Larry Jones, Special
Judge, granted the State’s motion to sentence
Appellant as an adult. From this ruling, A.R.M.
appeals.
¶2 A.R.M. raised four propositions of error
on appeal:
1. The imposition of the requirement that
the rehabilitation program be completed
by 18 years and 5 months is contrary to the
intent and purpose of the Youthful Offender Act;
2. The delays, caused by the Appellee in
completing the preliminary hearing and
the hearing on the Motion to Impose an
Adult Sentence, violated the Appellant’s
due process and equal protection rights
under the United States and Oklahoma
Constitutions;
3. The State failed to present clear and convincing evidence that A.R.M. would not
reasonably complete a plan of rehabilitation or that the public would not be adequately protected if he was sentenced as a
Youthful Offender; and
4. The court’s substitution of its own opinion for the evidence presented at the hearing constituted an abuse of discretion.
Pursuant to Rule 11.2(A)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18,
App. (2011), this appeal was automatically
2089
assigned to the Accelerated Docket of this
Court. The propositions and issues were presented to this Court in oral argument on May
12, 2011, pursuant to Rule 11.2(E). At the conclusion of oral argument, the parties were
advised of the decision of this Court.
¶3 The District Court’s order granting the
State’s motion to sentence Appellant as an
adult is AFFIRMED.
¶4 In Proposition I, A.R.M. argues that the
age limitation requiring the Office of Juvenile
Affairs to relinquish custody of youthful
offenders once they reach 18 years and 5
months is contrary to the intent and purpose of
the Youthful Offender Act. We disagree. The
Legislature has clearly expressed its intent as
set forth at 10A O.S.Supp.2010, § 2-5-207. While
17 year old offenders are eligible for treatment
as youthful offenders, the time span for which
treatment is available ends at age 18 years and
5 months. The characterization of that limitation as “arbitrary and ridiculous” notwithstanding, the Legislature’s intent could not
have been more clear. However distasteful the
age limitation might be, we find that the intent
of the Legislature, and the purpose of the
Youthful Offender Act, can be reconciled. We
find no violation of due process or equal protection, and therefore determine A.R.M.’s first
proposition to be without merit.
¶5 Proposition II likewise affords no relief in
this instance. We find no unnecessary delay in
the procedures which brought A.R.M. to this
point in his criminal prosecution.
¶6 A.R.M. alleges at Proposition III that the
State failed to meet its burden to show by clear
and convincing evidence that he would not
reasonably complete a plan of rehabilitation or
that the public would not be adequately protected if he was treated as a youthful offender.
Proposition IV claims that the trial court substituted its own opinion for the evidence presented at the hearing, resulting in a decision
contrary to the law and facts of the case constituting an abuse of discretion.
¶7 The question before this Court is whether
the trial court abused its discretion in granting
the State’s motion to sentence A.R.M. as an
adult.
An “abuse of discretion” has been defined
by this Court as a clearly erroneous conclusion and judgment, one that is clearly
against the logic and effect of the facts pre2090
sented in support of and against the application. . . . The trial court’s decision must
be determined by the evidence presented
on the record, just as our review is limited
to the record presented.
W.C.P. v. State, 1990 OK CR 24, ¶ 9, 791 P.2d 97,
100. Accord, C.L.F. v. State, 1999 OK CR 12, ¶ 5,
989 P.2d 945, 946. A.R.M. has not shown that
the District Court abused its discretion in
granting the State’s motion.
¶8 For imposition of an adult sentence, 10A
O.S.Supp.2010, § 2-5-208(D), requires the District Court to find “by clear and convincing
evidence that there is good cause to believe
that the accused person would not reasonably
complete a plan of rehabilitation or that the
public would not be adequately protected if
the person were to be sentenced as a youthful
offender” (emphasis added). In making this
decision, the court is directed to consider seven
factors, with the greatest weight being given to
the first three factors which are (a) whether the
offense was committed in an aggressive, violent, premeditated or willful manner; (b)
whether the offense was against persons and, if
personal injury resulted, the degree of injury;
and (c) the record and past history of the
accused, including any prior contacts with law
enforcement, the juvenile or criminal courts,
and prior commitments to juvenile institutions.
Id. The remaining factors to be considered are
the sophistication and maturity of the offender,
the prospects for adequate protection of the
public if the person is treated as a youthful
offender, the reasonable likelihood of rehabilitation using the procedures and facilities currently available to the juvenile court, and
whether the accused was on escape status at
the time of the offense. Id.
¶9 A.R.M. had no prior contacts with law
enforcement and his only troubling history consisted of school suspensions, one of which was
the result of allegedly making a death threat to
a teacher. The last criteria, escape status, was
not applicable in A.R.M.’s case. That being said,
the remaining five criteria have to be examined,
with the greatest weight being given to the
aggressive, violent, premeditated nature of the
offense, and the injury to the victim.
¶10 The hearing testimony from the three
experts was fairly consistent. All three considered A.R.M. a good candidate for rehabilitation, although none of them opined that he
could be rehabilitated before the 18 year, 5
Vol. 82 — No. 24 — 9/17/2011
month treatment cutoff date. Additionally,
there was some disparity as to how long treatment should continue in A.R.M.’s case. Despite
this finding, all of the experts agreed that
A.R.M. was extremely sophisticated and more
than capable of distinguishing right from
wrong. Judge Jones took all of those opinions
into consideration, but found that the likelihood
of meaningful rehabilitation was outweighed by
the seriousness of the offense committed, the
manner in which the offense was planned and
concealed, and the resulting injury perpetrated
against a uniformed police officer.
¶11 The record reveals that in a matter of
minutes, A.R.M., his older brother Hector and
their mother all conspired to extricate their
father and husband from police custody by
shooting a uniformed police officer. The parties
accessed a gun hidden in the house, and one of
the young men attacked Officer Katie Lawson
in the alley behind the home, shooting her six
times, while A.R.M.’s brother remained inside
the house, and their mother stood on the front
lawn feigning ignorance. But for her bulletproof vest, Officer Lawson would have been
killed that evening. Testimony at the hearing
established that of the three participants in this
crime, A.R.M., the youngest, was also the most
sophisticated. He told his mother and brother
(now his co-defendants) to stop talking while
the three were in the police vehicle awaiting
transportation because they were being recorded; he told them both to request legal representation; and he told his brother not to speak
until he actually appeared in court. Later, while
being detained at the police station, A.R.M.
and Hector communicated through the interrogation room walls, in Spanish, conspiring
with each other to tell the police a consistent
story. A.R.M. tried to wipe gunshot residue
from his hands after Hector asked if he had
washed his hands after the shooting, and his
brother told A.R.M. to tell police that he, Hector, was the shooter.
¶12 Giving the most weight to the violent
nature of the crime, and the egregious injuries
suffered by Officer Lawson, coupled with
A.R.M.’s level of sophistication, Judge Jones
found that the public could not reasonably be
protected if A.R.M. was treated as a youthful
offender within the time remaining for rehabilitation. Based on these facts, we find no
abuse of discretion here. We find no support in
this record for the claim that Judge Jones substituted his opinion for that of the experts.
Vol. 82 — No. 24 — 9/17/2011
Rather, the district court followed the statutory
directive, which required that he weigh all of
the specified criteria. In so doing, Judge Jones
found merit in the State’s motion and granted
the same.
¶13 We find no merit in A.R.M.’s claim that
the trial court abused its discretion by ordering
him to be sentenced as an adult. The order of
the District Court granting the State’s motion
to sentence A.R.M. as an adult is AFFIRMED.
DECISION
¶14 The order of the District Court of Oklahoma County granting the State’s Motion to
Sentence Appellant as an Adult in Oklahoma
County Case No. CF-2010-5909 is AFFIRMED.
Pursuant to Rule 3.15, Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch.18, App.
(2011), the MANDATE is ORDERED issued
upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT
OF OKLAHOMA COUNTY
THE HONORABLE LARRY JONES,
SPECIAL JUDGE
APPEARANCES AT TRIAL
Melissa French, Erin Maxwell, Assistant Public
Defenders, Oklahoma County Public Defender’s Office, 320 Robert S. Kerr, Suite 611, Oklahoma City, OK 73102, Counsel for Defendant
Scott Rowland, Jennifer E. Chance, Assistant
District Attorneys, Oklahoma County, 5905 N.
Classen, Suite 301, Oklahoma City, OK 73118,
Counsel for the State
APPEARANCES ON APPEAL
Melissa French, Erin Maxwell, Assistant Public
Defenders, Oklahoma County Public Defender’s Office, 320 Robert S. Kerr, Suite 611, Oklahoma City, OK 73102, Counsel for Appellant
Jennifer E. Chance, Julia E. Hartnell, Assistant
District Attorneys, Oklahoma County, 5905 N.
Classen, Suite 301, Oklahoma City, OK 73118,
Counsel for the Appellee
OPINION BY: A. JOHNSON, P.J.:
LEWIS, V.P.J.: Concur
LUMPKIN, J.: Concur
C. JOHNSON, J.: Concur in Results
SMITH, J.: Concur
2091
2011 OK CR 23
KENT L. FAULKNER, Appellant, v. STATE
OF OKLAHOMA, Appellee.
Case No. F-2010-503. September 7, 2011
SUMMARY OPINION
LUMPKIN, JUDGE:
¶1 Appellant, Kent L. Faulkner, was tried by
jury and convicted of Child Sexual Abuse (10
O.S.Supp.2006, § 7115(E)) in the District Court
of Okfuskee County Case Number CF-2007-72.
The jury recommended as punishment imprisonment for thirty-five (35) years.1 The trial
court sentenced accordingly. It is from this
judgment and sentence that Appellant
appeals.
¶2 Appellant raises the following propositions of error in this appeal:
I. Mr. Faulkner’s Due Process rights were
violated when his former attorney prosecuted him in a matter substantially related
to the former representation.
II. Mr. Faulkner’s trial was infected throughout with improper and speculative
“expert” opinion testimony.
III. Error occurred by the State’s improper
bolstering of witnesses.
IV. Mr. Faulkner was prejudiced due to prosecutorial misconduct in violation of his
right to a fair trial.
V. The trial court erred when it failed to
instruct on required service of 85% of life
sentence.
VI. M
r. Faulkner received ineffective assistance
of counsel in violation of the Sixth and
Fourteenth Amendments of the United
States Constitution and Article II, §§ 7, 9
and 20 of the Oklahoma Constitution.
VII. The cumulative effect of all the errors
addressed above deprived Mr. Faulkner
of a fair trial.
¶3 After thorough consideration of these
propositions and the entire record before us on
appeal including the original record, transcripts and briefs of the parties, we have determined that Appellant is entitled to relief in
Proposition one.
¶4 In his first proposition of error, Appellant
contends that he was denied a fundamentally
2092
fair trial when his former attorney, Maxey
Parker Reilly, investigated and prosecuted him
for the instant offense. Appellant asserts the
existence of a conflict of interest under Rule
1.9, Oklahoma Rules of Professional Conduct, 5
O.S.Supp.2007, Ch. 1, App. 3-A, because the
attorney’s former representation of Appellant
was substantially related to the present case.
¶5 Appellant did not initially challenge the
assistant district attorney’s involvement in the
case. After she tried the preliminary hearing
and appeared at the initial pretrial hearings,
Appellant filed a Motion to Disqualify Counsel. The assistant district attorney then voluntarily recused from the case. Thereafter, Appellant did not challenge her appearance on behalf
of the State at a pretrial conference and failed
to object at trial to the reading of the Information, the playing of the videotape in which his
former counsel assisted in the interview of the
complaining witness, or the introduction into
evidence of Appellant’s communications to his
former attorney. As Appellant failed to timely
challenge the assistant district attorney’s
involvement in the case and failed to renew his
challenge at trial, he has waived appellate
review of the instant issue for all but plain
error. Cole v. State, 2007 OK CR 27, ¶ 58, 164
P.3d 1089, 1107; Cheatham v. State, 1995 OK CR
32, ¶ 48, 900 P.2d 414, 427.
¶6 At bottom, the Due Process Clause requires
a fundamentally fair trial. Bracy v. Gramley, 520
U.S. 899, 904–05, 117 S.Ct. 1793, 1797, 138 L.
Ed.2d 97 (1997); In re Murchison, 349 U.S. 133,
136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).
The right to due process and a fair trial
include the essential element that there is
no unfair advantage to the prosecution by
reason of a prior professional relationship
between a member of its staff and a criminal defendant concerning the same or
closely related matter.
United States v. LaVallee, 439 F.3d 670, 681 (10th
Cir. 2006) (quotations and citation omitted).
This Court analyzes the circumstances of an
attorney prosecuting a former client under the
rules of professional conduct, and under case
authority discussing the appearance of impropriety on the part of an attorney. Baker v. State,
1996 OK CR 49, ¶ 8, 927 P.2d 577, 580. The rule
addressing “Special Conflicts of Interest for
Former and Current Government Officers and
Employees,” provides, in relevant part, that:
Vol. 82 — No. 24 — 9/17/2011
Except as law may otherwise expressly
permit, a lawyer currently serving as a
public officer or employee:
(1) is subject to Rules 1.7 and 1.9
Rule 1.11(d), Oklahoma Rules of Professional Conduct, 5 O.S.Supp.2007, Ch. 1, App. 3-A. Rule
1.9(a) provides:
A lawyer who has formerly represented a
client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the
interests of the former client unless the former client gives informed consent, confirmed in writing.
Rule 1.9, Oklahoma Rules of Professional Conduct,
5 O.S.Supp.2007, Ch. 1, App. 3-A. A concurrent
conflict of interest exists if there is a significant
risk that the representation of a client will be
materially limited by the lawyer’s responsibilities to a former client. Rule 1.7(a)(2), Oklahoma
Rules of Professional Conduct, 5 O.S.Supp.2007,
Ch. 1, App. 3-A.
¶7 This Court has recognized that “if the evidence in any case discloses that the prosecuting
attorney might be possessed of some privileged
information by reason of former services rendered by him, then it is the duty of the court to
disqualify the prosecuting attorney.” Thoreson v.
State, 1940 OK CR 40, 100 P.2d 896, 899. Similarly, the committee comments to Rule 1.9,
provide:
Matters are “substantially related” for purposes of this Rule if they involve the same
transaction or legal dispute or if there otherwise is a substantial risk that confidential
factual information as would normally
have been obtained in the prior representation would materially advance the client’s
position in the subsequent matter. For
example, a lawyer who has represented a
businessperson and learned extensive private financial information about that person may not then represent that person’s
spouse in seeking a divorce.
¶8 Turning to the facts of the present case, we
find that plain error occurred. Hogan v. State,
2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. It is
clear that Appellant’s interests were materially
adverse to the State’s interest in criminally
prosecuting him. Although the assistant district attorney’s representation of Appellant was
Vol. 82 — No. 24 — 9/17/2011
not in the same matter, the former representation involved the same transaction. Only eighteen months before the initiation of the present
case, the assistant district attorney had assisted
Appellant obtain guardianship of the complaining witness. Later she assisted Appellant to
begin proceedings to adopt the child. The fact of
the guardianship was a necessary element of the
instant offense. See Huskey v. State, 1999 OK CR
3, ¶ 12, 989 P.2d 1, 7. As part of the investigation
of the offense, Appellant was interviewed by
law enforcement. He blamed the child’s other
family members of manufacturing the allegations to defeat the adoption and as an extension
of their initial opposition to the guardianship.
Days later, Appellant’s former counsel acting as
assistant district attorney participated in the
interview of the complaining witness. Many of
the questions during the interview centered
upon the facts surrounding the guardianship
and adoption and Appellant’s asserted defense.
Thereafter, Appellant’s former counsel initiated
the prosecution by filing an Information against
Appellant. When the case proceeded to trial, the
circumstances surrounding the guardianship
and adoption proceedings were at the heart of
both the State’s case and Appellant’s defenses to
the charge.
¶9 Based upon the nature of the representation and the events that occurred, there was a
substantial risk that confidential factual information as would normally have been obtained
in the prior representation would materially
advance the State’s position in the criminal
prosecution. Rule 1.9, Oklahoma Rules of Professional Conduct, 5 O.S.Supp.2007, Ch. 1, App. 3A, Committee Comments (3); Crawford v. State,
1992 OK CR 62, ¶ 50, 840 P.2d 627, 637-38 (finding that it was not improper for a prosecutor to
cross-examine his former client regarding his
prior convictions where there “was not an
improper use of privileged information.”),
abrogated on other grounds by Malone v. State,
2007 OK CR 34, 168 P.3d 185. Appellant defended against the charge by asserting that: 1) the
child’s other family members put her up to
making the allegations; 2) her mother had previously accused him of sexually abusing the
child; 3) his health did not permit him to
accomplish the alleged acts; and 4) the child’s
allegations were inconsistent with the circumstances of the living arrangements in the
Faulkner’s home. Through her representation
of Appellant and his wife in the guardianship
and adoption proceedings the assistant district
attorney would normally have obtained confi-
2093
dential information regarding the circumstances that became Appellant’s defenses in the
criminal prosecution.2 In particular, the assistant district attorney would have normally
obtained confidential information from Appellant to overcome the opposition of the other
family members to the guardianship and subsequent adoption proceedings. As the former
representation involved the same transaction
and there was a substantial risk that the assistant district attorney held confidential factual
information obtained in the prior representation that would materially advance the State’s
position in the criminal prosecution, we find
that the former representation was substantially related to the instant offense. As the
State’s and Appellant’s interests were materially adverse, the assistant district attorney
should have been disqualified from prosecuting the case.
¶10 Relying upon Wilkey v. State, 1998 OK CR
11, 953 P.2d 347, the State argues that Appellant’s claim must fail because he is unable to
show any harm as the assistant district attorney voluntarily recused from the case after
preliminary hearing and was not the assistant
district attorney that tried the case. In Wilkey,
two attorneys who had represented the defendant during his first trial had subsequently
gone to work for the district attorney’s office at
the time of his second trial. Id., 1998 OK CR 11,
¶ 2, 953 P.2d at 348-49. The attorneys did not
appear of record at any point in the second trial
and there was no evidence that they had any
actual contact with the prosecutors of the second trial. Id. This Court found that “[w]here
the appearance of a conflict of interest arises,
the appellant bears the burden to show actual
harm.” Id.
¶11 The present case is distinguishable from
Wilkey. We find that the assistant district attorney’s appearance and contact with the present
case constitutes a concurrent conflict of interest. Rule 1.7(a)(2), Oklahoma Rules of Professional
Conduct, 5 O.S.Supp.2007, Ch. 1, App. 3-A;
Baker, 1996 OK CR 49, ¶ 10, 927 P.2d at 580
(holding that appearance of attorneys on behalf
of the State at preliminary matters where attorneys possessed privileged information secured
from the appellant by reason of their former
services requires reversal despite the attorneys’
minimal involvement in the case). The record
in the present case reveals that Appellant’s former attorney appeared and had extensive contact with the prosecution of Appellant. She
2094
participated in the initial investigation conducted by the Okemah police department,
signed the Information charging Appellant,
and tried the preliminary hearing on behalf of
the State. Even after she voluntarily recused
from the case she continued to appear and
have contact with Appellant’s case. She
appeared at the pre-trial conference and argued
on behalf of the State. Although not present in
person, she appeared at trial. Her name was
affixed to the Information that was read to the
jury. She was depicted questioning the complaining witnesses in a videotape that was
shown to the jury. Within the video, the newly
appointed assistant district attorney repeatedly
assured the confused complaining witness that
she did not represent Appellant anymore but
that she now “put criminals in jail.” (State’s Ex.
No. 3). She further informed the complaining
witness that it was part of her job to see that the
complaining witness did not have to go back
with Appellant and his wife. (State’s Ex. No. 3).
She continued to have contact with the case.
She met with the prosecutor that tried the case
and conveyed her former clients’ communications to her during the guardianship proceedings. Because there is a substantial risk that
Appellant’s former counsel held confidential
information secured from Appellant during
the former representation that was materially
adverse to Appellant in the present case and
she appeared in the present case, plain error
occurred and Appellant’s conviction cannot
stand.3 We are required to reverse Appellant’s
conviction and remand the matter to the district court for a new trial. Pursuant to Rule 1.9,
the trial court should disqualify any prosecutor
that has acquired information protected by
Rules 1.6 and 1.9(c), of the Oklahoma Rules of
Professional Conduct, from appearance or contact with the case at re-trial.
¶12 Appellant’s remaining propositions of
error as well as his Application for Evidentiary
Hearing4 are rendered moot by our determination in Proposition One. As such, they are
denied.
DECISION
¶13 The judgment and sentence is REVERSED
AND REMANDED FOR A NEW TRIAL consistent with this Opinion. Pursuant to Rule
3.15, Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery
and filing of this decision.
Vol. 82 — No. 24 — 9/17/2011
AN APPEAL FROM THE DISTRICT
COURT OF OKFUSKEE COUNTY
THE HONORABLE LAWRENCE W.
PARISH, DISTRICT JUDGE
Ned Burleson, II, P.O. Box H, Prague, OK
74864, Counsel for Defendant
Laura Farris, Assistant District Attorney, 302
Courthouse, 222 E. Dewey Street, Sapulpa, OK
74066, Counsel for the State
Wayna Tyner, Appellate Defense Counsel, Oklahoma Indigent Defense System, P.O. Box 926,
Norman, OK 73070, Counsel for Appellant
E. Scott Pruitt, Attorney General of Oklahoma,
Jared Aden Looper, Assistant Attorney General, 313 N.E. 21st St., Oklahoma City, OK 73105,
Counsel for the State
OPINION BY: LUMPKIN, J.
A. JOHNSON, P.J.: CONCUR
LEWIS, V.P.J.: CONCUR
C. JOHNSON, J.: CONCUR
SMITH, J.: CONCUR
1. Appellant will be required to serve 85% of this sentence before
he is eligible for parole pursuant to 21 O.S.Supp.2002, § 13.1(14).
2. The Committee Comments to Rule 1.9, Oklahoma Rules of Professional Conduct, 5 O.S.Supp.2007, Ch. 1, App. 3-A, further provide
that:
A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk
that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary
practice be learned by a lawyer providing such services.
3. As this Court has information indicating a substantial likelihood
that a lawyer, Maxey Parker Reilly, has committed a violation of the
Oklahoma Rules of Professional Conduct, a copy of this opinion will be
forwarded to the General Counsel of the Oklahoma Bar Association
and a complete copy of the briefs and pleadings will be made available, at their request. See Rule 2.15(D), Code of Judicial Conduct, 5
O.S.Supp.2011, Ch. 1, App. 4; Garrison v. State, 2004 OK CR 35, ¶ 168
n.56, 103 P.3d 590, 619-20 n.56.
4. The application and the attached exhibits shall remain sealed consistent with this Court’s prior order. See 10A O.S.Supp.2009, § 1-6-102.
2011 OK CR 22
THE STATE OF OKLAHOMA, Appellant, v.
JULIA ISADORA DAVIS, JAMES ROBERT
LEMMONS, CURTIS WAYNE PRADIA,
Appellee.
Case No. S-2010-1022; S-2010-1023; S-20101024. August 30, 2011
SUMMARY OPINION
C. JOHNSON, JUDGE:
Vol. 82 — No. 24 — 9/17/2011
¶1 Appellees, Julia Isadora Davis, James
Robert Lemmons and Curtis Dwayne Pradia,
were each charged in the District Court of
Payne County, with the misdemeanor crime of
Purchasing in Excess of Nine Grams of Pseudoephedrine Within a Thirty Day Period in
Case Nos. CM-2010-333, CM-2009-1789 and
CM-2009-1795, respectively. Pradia and Davis
filed Demurrers to the Information and Motions
to Dismiss. Lemmons filed a Motion to Quash.1
The trial court sustained Appellees’ demurrers.
The district court ordered that the cases be dismissed and, at the State’s request, ordered
additionally that the Appellant be barred from
further prosecution. The State appeals under
22 O.S.Supp.2009, § 1053(3).2
¶2 Appellant asks the following reserved
question of law:
1. Did the district court err as a matter of law
by ruling that the Informations did not
charge a criminal offense and by ruling that
the existence of a “real-time electronic log
book” created pursuant to 63 O.S.Supp.2009,
§ 2-309C(F) was a condition precedent to the
existence and prosecution for an offense
under 63 O.S.Supp.2005, § 2-212(A)(2)(b).3
¶3 Defendants Davis, Lemmons and Pradia
were each charged with Purchasing in Excess
of Nine Grams of Pseudoephedrine within a
Thirty Day Period, a misdemeanor, in violation
of 63 O.S.Supp.2005, § 2-212(A)(2). This statute
refers to “[a]ny compound, mixture, or preparation containing any detectable quantity of
pseudoephedrine, its salts or optical isomers,
or salts of optical isomers” and provides that:
I f any compound, mixture, or preparation as
specified in this paragraph is dispensed,
sold, or distributed in a pharmacy:
a. it shall be dispensed, sold, or distributed
only by, or under the supervision of, a
licensed pharmacist or a registered pharmacy technician, and
b. any person purchasing, receiving, or otherwise acquiring any compound, mixture,
or preparation shall produce a driver
license or other state-issued identification
card and shall sign a written log, receipt, or
other program or mechanism approved by
the Oklahoma Bureau of Narcotics and
Dangerous Drugs Control, showing:
(1) the date of the transaction,
(2) name of the purchaser,
2095
(3) driver license number or state-issued
identification number and state of residence of the purchaser,
In contrast, 63 O.S.Supp.2009, § 2-309C sets
forth requirements for dispensers of pseudoephedrine. Section 2-309C(F) provides that:
(4) name and initials of the pharmacist or
pharmacy technician conducting the
transaction,
he Oklahoma State Bureau of Narcotics and
T
Dangerous Drugs Control is authorized, by
any funds available to it, to implement a realtime electronic logbook to monitor the sale of
Schedule V products containing any detectable quantity of pseudoephedrine, its salts or
optical isomers, or salts of optical isomers.
Dispensers of such pseudoephedrine products shall report all such sales electronically
pursuant to rules promulgated by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control. The reporting requirements of this title do not apply to any lawful
sale of a Schedule V product containing any
detectable quantity of pseudoephedrine, its
salts or optical isomers, or salts of optical
isomers, until such time that:
(5) the product being sold, and
(6) total quantity, in grams or milligrams,
of pseudoephedrine purchased.
No person shall purchase, receive, or otherwise acquire more than nine (9) grams of
any product, mixture, or preparation within any thirty-day period. Provided, the
requirements of this subsection shall not
apply to any quantity of such product,
mixture or preparation dispensed pursuant
to a valid prescription.
¶4 The district court ruled that the relevant
statutes, taken as a whole, criminalize the purchase and possession of nine or more grams of
pseudoephedrine. However, it ruled additionally that the provisions of section 2-212(A)(2)
do not make the purchase of over nine grams
of pseudoephedrine within a thirty day period
a crime until the real-time log system authorized by 63 O.S.Supp.2009, § 2-309C is shown
to be in full force and effect. The State avers
that this statutory interpretation is in error and
asks this Court to address the issue in this
reserved question of law.
¶5 We review the trial court’s construction
and application of Oklahoma law de novo,
without deference to the determination of the
trial court. State v. Duc Hong Pham Tran, 2007
OK CR 39, ¶ 7, 172 P.3d 199, 200. This Court is
committed to the rule of strict construction in
the application of criminal statutes. Id, at ¶ 8,
172 P.3d at 200. “A statute should be given a
construction according to the fair import of its
words taken in their usual sense, in connection
with the context, and with reference to the purpose of the provision.” Coddington v. State, 2006
OK CR 34, ¶ 56, 142 P.3d 437, 452-53 (internal
citations omitted).
¶6 Title 63 O.S.Supp.2005, § 2-212(A)(2) very
specifically makes it a crime for a person to
purchase, receive, or otherwise acquire more
than nine grams of any compound, mixture, or
preparation containing any detectable quantity
of pseudoephedrine, its salts or optical isomers, or salts of optical isomers within any
thirty-day period without a valid prescription.
2096
1. The Oklahoma State Bureau of Narcotics
and Dangerous Drugs Control implements a statewide real-time logbook that
authorized purchases and records purchaser information statewide; and
2. The Oklahoma State Bureau of Narcotics
and Dangerous Drugs Control adopts
rules for the reporting of sales of Schedule
V product containing any detectable quantity of pseudoephedrine, its salts or optical isomers, or salts of optical isomers.
¶7 The real-time log is clearly a tool authorized to help monitor sales of pseudoephedrine, in part, to assist with the enforcement of
section 2-212(A)(2). However, there is no indication from the plain language of either statute
that the enforcement of section 2-212(A) is
dependent upon the implementation of a realtime log to monitor the sales of pseudoephedrine. Violations of section 2-212(A) may well be
more difficult to enforce without the real-time
log authorized by section 2-309C(F), but the
implementation of a real-time log is not a condition precedent to the enforcement of section
2-212(A)(2). The trial court’s interpretation of
these statutes to the contrary and its ruling that
the Informations did not charge a criminal
offense were in error.
DECISION
¶8 The reserved question of law ANSWERED.
Pursuant to Rule 3.15, Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch.18, App.
Vol. 82 — No. 24 — 9/17/2011
(2011), the MANDATE is ORDERED issued
upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT
COURT OF PAYNE COUNTY
THE HONORABLE MICHAEL STANO,
SPECIAL JUDGE
Debra Vincent, P.O. Box 443, Stillwater, OK 74076,
Attorney for Defendants Davis and Pradia
Frank Muret, 301 South Duck, Stillwater, OK
74074, Attorney for Defendant Lemmons
Robert L. Hudson, District Attorney, District 9,
Tom R. Lee, First Assistant District Attorney, 606
South Husband Street, Stillwater, OK 74074,
Attorneys for the State
September 27, 2011
5 p.m.
Featuring
Patrick D. Barnes, MD
David A. Moran
Carrie Sperling
Oklahoma City University
School of Law
Sarkeys Law Center
N.W. 23rd and Kentucky
Homsey Family Moot Courtroom
Mark Hoover, P.O. Box 926, Norman, OK 73070,
Attorneys for Appellees
OPINION BY C. JOHNSON, J.
A. JOHNSON, P.J.: CONCUR
LEWIS, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR
SMITH, J.: CONCUR
1. The District Court noted on the record that it would treat Lemmons’ motion to quash as a demurrer.
2. At the State’s request, the cases of the three Appellees were consolidated for appeal.
3. Appellant did not specifically state its “reserved question of
law” in court, in its Notice of Intent to Appeal or in its appellate brief.
It did, however, attach to its Notice of Intent to Appeal an “advisory
list of propositions of error that may be presented on appeal.” The
reserved question of law addressed in this opinion combines the second and third of the propositions included within the advisory list as
these were clearly argued in Appellant’s appellate brief.
Law & Medicine
Lecture Series
Keith Findley
Keynote Speaker
Clinical Professor of Law
Wisconsin University Law School
“Challenging Shaken Baby Syndrome
Convictions in Light of New Medical
and Scientific Research”
law.okcu.edu
O KLAHOMA C ITY UNIVERSITY S CHOOL OF L AW
Vol. 82 — No. 24 — 9/17/2011
2097
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Registration and continental breakfast
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CMS, Medicare Fee for Service Branch
Break
An Overview of the Oklahoma Insurance Commissioner’s Office by General Counsel
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Administration
Presentation of Golf Outing Prizes (must be present to collect prize) and Election of 2012
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House of Delegates
Thank you to the County Bar Presidents of:
Adair, Alfalfa, Atoka, Beaver, Blaine, Bryan,
Canadian, Carter, Cherokee, Cimarron, Choctaw,
Cleveland, Coal, Comanche, Cotton, Craig, Creek,
Custer, Dewey, Ellis, Garfield, Garvin, Grady,
Grant, Greer, Harmon, Harper, Haskell, Hughes,
Jefferson, Johnston, Kay, Kingfisher, LeFlore, Logan,
Love, Marshall, Mayes, McClain, McIntosh, Murray,
Muskogee, Okfuskee, Oklahoma, Okmulgee, Ottawa, Pawnee, Pittsburg, Pontotoc, Pushmataha, Roger
Mills, Rogers, Seminole, Texas, Tulsa, Wagoner,
Washington, Washita, Woods and Woodward 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 as of July 12,
2011. 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.
Beckham
Caddo
Delaware
Jackson
Kiowa
Latimer
Lincoln
Major
McCurtain
Vol. 82 — No. 24 — 9/17/2011
Noble
Nowata
Osage
Payne
Pottawatomie
Sequoyah
Stephens
Tillman
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.”
Resolutions to the House of Delegates,
must be received electronically by the
Executive Director no later than Sept.
30, 2011, to meet publication requirements. Submit to johnw@okbar.org and
debbieb@okbar.org. A representative
will need to present the resolution to the
Board of Governors at its September 16
or October 21 board meeting to enable
the board to make recommendations.
2101
2011 OBA ATTORNEY ART SHOW
R E G I S T R AT I O N F O R M
Pottery
Watercolor
Stained
glass
Photography
Deadline: Oct. 17, 2011
istration fee to:
Return form with Annual Meeting reg
homa City, OK 73152
53036
Oklahoma Bar Association • P.O. Box
Attn: Mark
• Okla
_______________________
Name ___________________________
______________________
OBA Number _____________________
______________________
*E-mail ___________________________
and forms)
itted to receive additional information
(*Must be subm
_____________________
Address ___________________________
___ Zip ________________
City ___________________ State ___
_____________________
Phone _______________________ Fax
described below.
r _____ pieces of art, each of which are
I will ente
rg
Questions? Email artatty@okbar.o
For each entry, complete in detail all
additional sheet.
information requested below. If needed,
Name of Piece
Size/Weight
2102
please attach an
Date
Created
The following
categories
of art will
be judged:
H Oil Painting
H Acrylic
H Watercolor
H Black and White Drawing
H Color Drawing
H Black and White
Photograph
H Color Photograph
H Three Dimensional
(sculptures, woodwork,
etc.)
H Craft (tile work, stained
glass, needlepoint, etc.)
H Mixed Media
(screenprint, enhanced
photographs, etc.)
Military themed
artwork is encouraged
in all categories
Category
Vol. 82 — No. 24 — 9/17/2011
BAR NEWS
2012 OBA Board of Governors Vacancies
Nominating Petition Deadline was: 5 p.m. Friday, Sept. 2, 2011
OFFICERS
Summary of Nominations Rules
President-Elect
Current: Cathy M. Christensen, Oklahoma City
Mrs. Christensen automatically becomes
OBA president Jan. 1, 2012
(One-year term: 2012)
Nominee: James T. Stuart, Shawnee
Vice President
Current: Reta M. Strubhar, Piedmont
(One-year term: 2012)
Nominee: Peggy Stockwell, Norman
BOARD OF GOVERNORS
Supreme Court Judicial District One
Current: Charles W. Chesnut, Miami
Craig, Grant, Kay, Nowata, Osage, Ottawa,
Pawnee, Rogers and Washington counties
(Three-year term: 2012-2014)
Nominee: Linda S. Thomas, Bartlesville
Supreme Court Judicial District Six
Current: Martha Rupp Carter, Tulsa
Tulsa County
Nominee: Kimberly K. Hays, Tulsa
Supreme Court Judicial District Seven
Current: Lou Ann Moudy, Henryetta
Adair, Cherokee, Creek, Delaware, Mayes,
Muskogee, Okmulgee and Wagoner counties
Nominee: Bret A. Smith, Muskogee
Gary J. Dean, Pryor
Member-At-Large
Current: Steven Dobbs, Oklahoma City
Nominee: Nancy Parrott, Oklahoma City
Vol. 82 — No. 24 — 9/17/2011
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. 2-4. Terms of the present OBA officers and governors listed will terminate Dec. 31,
2011. Nomination and resolution forms can be
found at www.okbar.org.
2103
BAR NEWS
OBA Nominating Petitions
(See Article II and Article III of the OBA Bylaws)
OFFICERS
PRESIDENT-ELECT
James T. Stuart, Shawnee
Nominating petitions have been filed nominating
James T. Stuart for election of President-Elect of the
Oklahoma Bar Association Board of Governors for
a one-year term beginning January 1, 2012. A total
of 407 signatures appear on the petitions.
Nominating Resolutions have been received from
the following counties:
Comanche and Pottawatomie
VICE PRESIDENT
Peggy Stockwell, Norman
Nominating Petitions have been filed nominating
Peggy Stockwell for election of Vice President of
the Oklahoma Bar Association Board of Governors
for a one-year term beginning January 1, 2012.
A total of 320 signatures appear on the petitions.
BOARD OF GOVERNORS
SUPREME COURT JUDICIAL DISTRICT
NO. 1
Linda S. Thomas, Bartlesville
Linda S. Thomas for election of Supreme Court
Judicial District No. 1 of the Oklahoma Bar Association Board of Governors for a three-year term
beginning January 1, 2012.
A Nominating Resolution has been received from
the following county:
Washington
NO. 7
Bret A. Smith, Muskogee
Bret A. Smith for election of Supreme Court Judicial District No. 7 of the Oklahoma Bar Association
Board of Governors for a three-year term beginning January 1, 2012.
Muskogee
NO. 7
Gary J. Dean, Pryor
A Nominating Resolution has been filed nominating Gary J. Dean for election of Supreme Court
Mayes
MEMBER-AT-LARGE
Nancy Parrott, Oklahoma City
Nancy Parrott for election of Member-at-Large of
the Oklahoma Bar Association Board of Governors
for a three-year term beginning Jan. 1, 2012.
NO. 6
Kimberly K. Hays, Tulsa
Kimberly K. Hays for election of Supreme Court
2104
Vol. 82 — No. 24 — 9/17/2011
Vol. 82 — No. 24 — 9/17/2011
2105
Court of Civil Appeals Opinions
2011 OK CIV APP 96
Standard of Review
CERTAIN UNDERWRITERS AT LLOYDS
LONDON, a Foreign Insurer, Plaintiff/
Appellee, vs. B3, INC. and NRS
CONSULTING ENGINEERS, Defendants/
Appellants, and THE MILL CREEK PUBLIC
WORKS AUTHORITY; JOHN D. SIKES and
TAMARA J. SIKES, Husband and Wife;
CONNIE SIKES, Individually and as
Personal Representative of THE ESTATE OF
JOHNNY F. SIKES; WILLIAM BRUNK and
KATHRYN BRUNK, Husband and Wife;
PHIL CONVERSE; AVA CONVERSE;
PAULA RUSH; THE JANICE EARLENE
FAMILY REVOCABLE TRUST; SHANNON
SHIRLEY and REGINALD ROBBINS,
Husband and Wife, Defendants.
¶2 ¶ 13 Declaratory judgment actions are
reviewed “in the same manner as other judgments.” 12 O.S.2001 § 1654. The trial court’s legal
rulings are reviewed under a de novo standard,
under which the appellate court has plenary,
independent, and non-deferential authority to
reexamine those rulings. Neil Acquisition, L.L.C.
v. Wingrod Investment Corp., 1996 OK 125, n. 1,
932 P.2d 1100, 1103. In addressing Appellants’
claim that summary adjudication was inappropriate, we must examine the pleadings, depositions, affidavits and other evidentiary materials
submitted by the parties and affirm if there is
no genuine issue as to any material fact and
Defendants were entitled to judgment as a
matter of law. Perry v. Green, 1970 OK 70, 468
P.2d 483. An order granting summary relief
disposes of legal issues, and therefore the
review we conduct on appeal is de novo. Brown
v. Nicholson, 1997 OK 32, 935 P.2d 319; Manley v.
Brown, 1999 OK 79, 989 P.2d 448.
Case No. 108,268. July 21, 2011
APPEAL FROM THE DISTRICT COURT OF
JOHNSTON COUNTY, OKLAHOMA
HONORABLE JOHN H. SCAGGS,
TRIAL JUDGE
AFFIRMED
Robert W. Hayden, SPECK & HAYDEN, Oklahoma City, Oklahoma, and S. Brent Bahner,
FISCHL, CULP, McMILLIN, CHAFFIN, BAHNER & LONG, LLP, Ardmore, Oklahoma, for
Plaintiff/Appellee,
Gary L. Richardson, David R. Keesling, Heidi
L. Shadid, RICHARDSON RICHARDSON
BOUDREAUX, Tulsa, Oklahoma, for Defendant/Appellant, NRS Consulting Engineers.
Wm. C. Hetherington, Jr., Presiding Judge:
¶1 Defendants/Appellants B3, Inc. (B3) and
NRS Consulting Engineers (NRS) appeal entry
of an order sustaining a Motion for Summary
Judgment in favor of Plaintiff/Appellee Certain Underwriters at Lloyds London (Lloyds)
in Lloyd’s suit for a declaratory judgment. The
trial court’s finding the Total Pollution exclusion in an insurance policy issued by Lloyds
applied to bar coverage for liability and damages claimed in a lawsuit against NRS, B3, and
Defendant The Mill Creek Public Works
Authority and Lloyd’s was entitled to judgment as a matter of law is AFFIRMED.
2106
Facts
¶3 The Town of Mill Creek (Mill Creek) hired
NRS to design and plan improvements to its
wastewater treatment plant, and B3 was hired
to make the improvements according the NRS’s
specifications. B3’s contract provided it would
indemnify NRS and Mill Creek for claims arising from B3’s work on the improvements. In
order to perform the work, wastewater from
lagoons was discharged into Skeleton Creek.
¶4 NRS, B3 and The Mill Creek Public Works
Authority were sued in the District Court of
Johnston County, Oklahoma in Case No. CJ-0810 by Plaintiffs John Sikes, Tamara J. Sikes, The
Estate of Johnny Sikes, Connie Sikes, William
Brunk, Kathryn Brunk, Phil Converse, Ava
Converse, Paula Rush, The Janice Earlene Converse Family Revocable Trust, Shannon Shirley
and Reginald Robbins (collectively, Landowners1). Landowners raise several theories of
recovery for their alleged damages arising
from the pollution of their lands and their
water sources due to the disposal of raw or
improperly treated sewage in nearby creeks
beginning in late 2006.2
Vol. 82 — No. 24 — 9/17/2011
¶5 Lloyds sought a declaratory judgment
determinating it had no liability under Commercial General Liability Policy B3 LLG035602
(the policy) issued to its insured B3 due to a
pollution exclusion clause and moved for summary judgment in its favor.
¶6 The policy, in the Total Pollution Exclusion
Endorsement, Section I(2)(f), provides, in pertinent part, that no insurance is available for:
(1) “Bodily injury” or “property damage”
arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants” at
any time.
(2) Any loss, cost or expense arising out of
any:
(a) Request, demand, order or statutory or
regulatory requirement that any insured or
others test for, monitor, clean up, remove,
contain, treat, detoxify or neutralize, or in
any way respond to, or assess the effects of
“pollutants.”
¶7 The policy defines “pollutants” as “any
solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes,
acids, alkalis, chemicals and waste. Waste
includes materials to be recycled, reconditioned or reclaimed.” NRS moved for summary
judgment in its favor, arguing it was entitled to
indemnity and coverage as an intended thirdparty beneficiary under the policy. NRS argued
treated wastewater was not included in the
definition of “pollutants” under the policy and
therefore it was not an excluded risk.
¶8 The trial court concluded the claimed
losses in the underlying lawsuit were pollution
within the meaning of the policy, there was no
coverage under the policy for either the claimed
direct losses or indemnity losses, entered judgment in favor of Lloyds on its motion for summary judgment, and denied NRS’s motion
judgment. B3 and NRS appeal.
Analysis
¶9 When addressing a dispute concerning an
insurance policy language, the court must first
determine as a matter of law whether the policy language at issue is ambiguous. Wynn v.
Avemco Ins. Co., 1998 OK 75, ¶ 17, 963 P.2d 572,
575. Policy language is ambiguous if it is reasonably susceptible to more than one meaning
on its face, and the policy will be construed in
favor of the insured. Littlefield v. State Farm Fire
Vol. 82 — No. 24 — 9/17/2011
and Casualty Company, 1993 OK 102, ¶ 7, 857
P.2d 65, 69. “The rule that policies are to be
construed against the insurer has no application where the provisions are susceptible of
only one reasonable construction.” Wynn v.
Avemco Insurance Co., 1998 OK 75, ¶17, 963 P.2d
at 575. “However, neither forced nor strained
construction will be indulged, nor will any
provision be taken out of context and narrowly
focused upon to create and then construe an
ambiguity so as to import a favorable consideration to either party than that expressed in the
contract.” If an insurance contract contains no
ambiguity, the court must construe its language in accordance with the plain, ordinary
meaning of its terms. Haworth v. Jantzen, 2006
OK 35, ¶ 17, 172 P.3d 193, 197.
¶10 The issue of ambiguity in insurance policies is addressed in Cranfill v. Aetna Life Ins. Co.,
2002 OK 26, ¶7-¶8, 49 P.3d 703, 706, in which
the Court advises how:
The absence of an express definition of a
word within the policy does not necessarily
render the word ambiguous. Similarly, the
fact that a word cannot be precisely defined
to make clear its application in every factual situation does not mean the word is
ambiguous. See, e.g, Allstate v. Humphrey,
229 A.2d 70 (Md. 1970). Rather, the test to
be applied in determining whether a word
is ambiguous is whether the word ‘is susceptible to two interpretations’ on its face.
Littlefield v. State Farm Fire and Cas. Co., 1993
OK 102, 857 P.2d 65, 69. This test for ambiguity is applied from the standpoint of a
reasonably prudent lay person, not from
that of a lawyer. Couch on Insurance 3d
§21:14 (1995).
¶11 Appellants cite the exclusion of sewage
from the definition of “solid waste” found in
Title 40 of the Code of Federal Regulations promulgated pursuant to the Clean Water Act, 33
U.S.C. § 1251, et seq., and argue the policy is
ambiguous and sewage is not included within
the pollution exclusion. Although informative,
this definition is not determinative, especially
given how Landowners’ petition explicitly states,
“Plaintiffs do not assert a claim under the Clean
Water Act.” Section V, Definitions, (15) of the
policy defines the term “pollutants” as including
waste and contaminants. The policy does not
separately define the terms waste or contaminants. However, the definition of “pollutant,”
taken in a plain and ordinary manner, does not
limit waste to “solid waste.”
2107
¶12 Landowners’ petition claims their water
and land were contaminated by components of
sewage including “feces, urine, vomit, other
bodily fluids and excretions, rancid food particles, discarded or excreted pharmaceuticals,
dead animals, inorganic chemicals, bacteria
(including E. Coli), viruses, prions, parasitic
worms and other parasites (including Cryptosporidium and Giardia lamblia), heavy metals,
and any other thing that a person can flush
down a toilet.” The Oklahoma Administrative
Code, at OAC 252:645-1-2, defines “sewage” as
“wastewater that generally originates as human
waste from certain activities including using
toilet facilities, washing, bathing, preparing
foods and washing laundry.”3
¶13 The trial court states the problem with
the analysis of the term “pollutant” posed by
NRS and B3:
The evidence is clear that a portion of the
water pumped from the sewage lagoon by
Defendant B3 contained fecal matter, suspended solids, coliform bacteria and other
pollutants. This Court would have to stand
the definition of pollution on its head to
not find that the insurance policy is clear
on its face, unambiguous and excludes
coverage for pollution.
¶14 Landowners’ underlying lawsuit is premised upon damages allegedly sustained due
to the polluting nature of the wastewater containing human waste and other raw or improperly treated wastes and contaminants released
or discharged within the plain and ordinary
meaning of those terms. An ambiguity is created only by adopting the strained construction proposed by NRS and B3. “An insured
cannot insist upon a strained construction of
relevant policy language in order to claim a
patent ambiguity exists nor can it contradict
the written instrument’s plain terms under the
guise of latent ambiguity.” Bituminous Casualty
Corp. v. Cowen Construction, Inc., 2002 OK 34,
¶12, 55 P.3d 1030, 1034; see also Kerr-McGee Corporation v. Admiral Insurance Company, 1995 OK
102, 905 P.2d 760.
Conclusion
¶15 Lloyd’s policy is not ambiguous on its
face in excluding coverage for the risks stated
in Landowners’ underlying lawsuit for damages allegedly caused by the releases or discharges from the lagoons in the course of the
work performed by B3 according to NRS’s
plans and specifications. Having determined
2108
there is no coverage under the policy, we need
not address whether NRS was a third-party
beneficiary of a third party contract, i.e., entitled to indemnification under coverage afforded B3. The trial court’s order finding the pollution exclusion applies to exclude coverage and
Lloyd’s was entitled to judgment as a matter of
law is AFFIRMED.
BELL, C.J., and HANSEN, J., concur.
1. This designation is used for simplicity of reference. The plaintiff
group includes those suing as individuals, those who act in a trustee
capacity, and a trust.
2. There appears to be other litigation in Case No. CJ-2008-192 in
the District Court of Johnston County, Oklahoma over claimed permits
for the disposal.
3. 16 Ok Reg. 1895, eff. 6-11-99; Amended at 18 Ok Reg 1616, eff.
6-1-01; Amended at 19 Ok Reg. 45, eff. 8-17-01 (emergency); Amended
at 19 Ok Reg. 1027, eff. 6-1-02; Amended at 21 Ok Reg. 1618, eff. 6-1104; Amended at 25 Ok Reg 2318, eff. 7-11-08.
2011 OK CIV APP 95
CITY OF MIDWEST CITY, Petitioner, vs.
CYNTHIA ANN MADDUX and the
WORKERS’ COMPENSATION COURT,
Respondents.
Case No. 108,129. April 29, 2011
PROCEEDING TO REVIEW AN ORDER OF
A THREE-JUDGE PANEL OF THE
WORKERS’ COMPENSATION COURT
SUSTAINED IN PART, VACATED IN PART
AND REMANDED WITH INSTRUCTIONS
William Archibald, Oklahoma City, Oklahoma,
for Petitioner,
John Kord Hammert, Oklahoma City, Oklahoma, for Respondent.
Larry Joplin, Judge:
¶1 Petitioner City of Midwest City (Employer)
seeks review of an order of a three-judge panel
of the Workers’ Compensation Court which
affirmed the trial court’s order granting benefits
to Respondent Cynthia Ann Maddux (Claimant)
for injuries to her neck and shoulder. In this proceeding, Employer challenges the order as
unsupported by competent evidence.
¶2 Claimant worked for Employer as a police
officer. By Form 3, Claimant alleged injuries to
her neck and right shoulder arising out of and
in the course of her employment with Employer. For treatment of her injuries, Claimant’s
physicians performed arthroscopic surgery on
her right shoulder and administered an epidural steroid injection to her neck.
Vol. 82 — No. 24 — 9/17/2011
¶3 At trial, Claimant offered, and the trial
court admitted, the medical report of an examining physician, Dr. McClure, without objection by Employer. Dr. McClure opined that
Claimant had sustained twenty-seven (27) percent permanent partial impairment to the neck1
and forty-four (44) percent permanent partial
impairment to the right shoulder, causally
related to injuries sustained in the course of her
employment.
and the rapid recovery from, the arthroscopic
shoulder surgery.
¶4 In opposition to the claim, Employer
offered the deposition and report of its examining physician, Dr. Munneke. Dr. Munneke
found no permanent impairment of the neck
and fifteen (15) percent permanent partial
impairment of the right shoulder.
¶8 The phrase, “permanent impairment,”
“means any anatomical abnormality after maximum medical improvement has been achieved,
which abnormality or loss the physician considers to be capable of being evaluated at the
time the rating is made.” 85 O.S. Supp. 2006
§3(19). “Any examining physician shall only
evaluate impairment in accordance with the
latest publication of the American Medical
Association’s ‘Guides to the Evaluation of Permanent Impairment’ in effect at the time of the
injury. . . .” Id.
¶5 On consideration of the testimony and
evidence, the trial court held for Claimant:
THAT on NOVEMBER 23,2003, claimant
was employed by the [Employer] . . . ; on
said date [C]laimant sustained accidental
personal injury to the NECK and RIGHT
SHOULDER arising out of and in the
course of the [C]laimant’s employment.
...
THAT as a result of said injury, [C]laimant
sustained 30 percent permanent partial disability to the RIGHT SHOULDER (SURGERY — LOSS OF MUSCLE STRENGTH
— LOSS OF SENSATION & DYSESTHESIA — LOSS OF RANGE OF MOTION)
and 13 percent permanent partial disability
to the NECK (SURGERY — EPIDURAL
STEROID INJECTION — LOSS OF RANGE
OF MOTION — LOSS OF SENSATION &
DYSESTHESIA — HEADACHES —
INJURED DISC), for which [C]laimant is
entitled to compensation . . . .
Employer appealed, and a three-judge panel
unanimously affirmed the trial court’s order as
neither contrary to law nor against the clear
weight of the evidence.
¶6 Employer now seeks review in this Court.
Employer asserts the epidural steroid injection
to Claimant’s neck does not constitute “surgery,”
and, since Claimant’s physician discerned only
six percent permanent partial impairment “for
one injured disc without surgery,” the award for
13% PPD to the neck is excessive. Without citation of authority, Employer also complains the
award for 30% PPD to the shoulder is excessive,
considering the minimally invasive nature of,
Vol. 82 — No. 24 — 9/17/2011
¶7 Claimant sustained her on-the-job injury
on or about November 23, 2003. The law in
effect at the time of the injury controls, so, notwithstanding the amendments of 85 O.S. §3.6,
effective November 1, 2009, we canvass the
record for any competent evidence to support
the lower court’s Order. Dunlap v. Multiple
Injury Trust Fund, 2011 OK 14, __ P.3d __.
¶9 As to the award of PPD for the injury to
Claimant’s right shoulder, Dr. McClure discerned a total of 44% permanent partial impairment. The mere difference in Dr. McClure’s
rating and Dr. Munneke’s rating does not render Dr. McClure’s ratings excessive per se, and
the Workers’ Compensation Court may grant
an award within the range of disability established by the medical evidence.
¶10 However, neither Dr. McClure nor Dr.
Munneke expressed any opinion establishing
the existence of permanent partial impairment
on account of any “surgery — epidural steroid
injection” to the neck. To the contrary, in fact,
Dr. McClure discerned permanent partial
impairment of 6% “for one injured disc without
surgery,” and an epidural steroid injection is
not considered a “surgical” procedure. Wilcoxson v. Woodward County EMS, 2010 OK CIV
APP 50, ¶5, 231 P.3d 1173.2 (Emphasis added.)
¶11 In short, Dr. McClure’s testimony, the
sole evidence finding PPD for the neck injury,
supports an award of only six (6) percent PPD
for the one injured cervical disc. Employer
seeks remand for entry of an order granting six
percent PPD to the neck, and we hold such a
remand is appropriate. That part of the order of
the three-judge panel granting benefits for PPD
to the right shoulder is SUSTAINED. That part
of the order of the three-judge panel granting
benefits for PPD to the neck is VACATED, and
the cause REMANDED for entry of an order
2109
granting six percent PPD for the injury to
Claimant’s neck.
MITCHELL, P.J., and BUETTNER, J., concur.
1. Concerning the neck injury, Dr. McClure stated in his report:
My opinion, as to permanent impairment of the cervical spine is
as follows: There is four (4) percent for loss of range of motion,
seven (7) percent for loss of sensation and dysesthesia, ten (10)
percent for headaches, and six (6) percent for one injured disc
without surgery. This comes to twenty-seven percent permanent
partial impairment to the body as a whole, due to the injury to
the cervical spine.
Dr. McClure testified at deposition that he evaluated the neck injury
according to the AMA Guides.
2. ”Claimant’s counsel argues that ‘[t]his case is not a “soft tissue
injury” case as defined in Title 85 O.S. Section 22(3)(d) as corrective surgery to the neck, in the form of an epidural steroid injection was recommended.’ Claimant’s Brief-in-Chief, p. 3. Similarly, Claimant’s counsel
stated at the hearing that ‘[t]here’s been a recommendation of epidural
steroid injections, which would be considered surgery.’ Tr., p. 31. We
disagree with Claimant that an epidural steroid injection is a surgical
procedure. An injection - ‘[t]he introduction of a medicinal substance . . .
into a part of the body . . . by a needle and syringe or by a syringe’ - is
not a surgery - a treatment involving ‘manual adjustment (as the setting
of a broken bone), the use of mechanical appliances (as braces), or operative procedures (as the cutting into the body).’ J.E. Schmidt, M.D.,
ATTORNEYS’ DICTIONARY OF MEDICINE AND WORD FINDER
(1991). See also Lumbar Epidural Steroid Injections for Low Back Pain and
Sciatica by Richard Staehler, M.D., at www.spine-health.com (epidural
steroid injections are ‘an integral part of the non-surgical management of
sciatica and low back pain.’) Therefore, a recommendation of an epidural steroid injection is not a recommendation of surgery.”
2011 OK CIV APP 94
NATIONAL AMERICAN INSURANCE
COMPANY, an Oklahoma corporation,
Plaintiff/Appellee, vs. GERLICHER
COMPANY, LLC, an Oregon limited liability
company; and OK LAKES, LLC, a
Washington Limited Liability company,
Defendants/Appellants, and PINION
CONSTRUCTION, INC., an Oklahoma
corporation, Defendant.
Case No. 108,114. June 30, 2011
TULSA COUNTY, OKLAHOMA
HONORABLE MARY F. FITZGERALD,
TRIAL JUDGE
AFFIRMED
Gregory D. Nellis, Galen L. Brittingham,
ATKINSON, HASKINS, NELLIS, BRITTINGHAM, GLADD & CARWILE, Tulsa, Oklahoma,
for Plaintiff/Appellee
Scott Hathaway, Julia Forrester-Sellers, CONNER & WINTERS, LLP, Tulsa, Oklahoma, for
Defendants/Appellants
JOHN F. FISCHER, VICE-CHIEF JUDGE:
¶1 Gerlicher Company, LLC and OK Lakes,
LLC appeal from the district court’s grant of
summary judgment to commercial general lia2110
bility insurer National American Insurance
Company (NAICO). The appeal has been
assigned to the accelerated docket pursuant to
Oklahoma Supreme Court Rule 1.36(b), 12 O.S.
Supp. 2010, ch. 15, app. 1, and the matter
stands submitted without appellate briefing.
BACKGROUND
¶2 The following facts are undisputed. Gerlicher contracted to purchase a commercial
building built by general contractor Pinion
Construction, Inc. (Pinion). The building’s construction included an exterior insulating finishing system (EIFS).1 Construction on the building was completed on April 1, 2006, and the
United States Fish & Wildlife Service leased the
premises. Gerlicher subsequently entered into
an agreement assigning its purchase contract
and lease to OK Lakes.
¶3 Sometime in August 2008, the Fish and
Wildlife Service notified Gerlicher and OK
Lakes of significant problems in the building
related to water intrusion, high humidity and
mold. An environmental testing company,
MBA Technologies, was retained on Gerlicher’s
behalf to evaluate the problems with the building. In a “Moisture Intrusion and Causation
Assessment” report prepared for “the Gerlicher Claim” dated November 3, 2008, MBA
Technologies concluded that “[t]here are at
least three issues that work in tandem which
are the largest factors in the moisture problem
of the building.”2 MBA Technologies identified
these factors in its report:
The first and primary issue is the presence of vinyl wall covering (an unplanned
vapor barrier) on the interior side of the
exterior wall system. This creates a vapor
barrier on the interior side of the wall system. There is also an engineered vapor barrier on the exterior wall system which was
installed when the building was constructed. Water that enters the wall system
becomes trapped between the two vapor
barriers and cannot easily evaporate.
The second item is that the brick row
ledge is sloped towards the wall instead of
away from the wall system. Brick row
ledges should be sloped away from the
wall system to allow water to drain away
from this vulnerable intersection. Because
of this improper slope, water collects
against the brick row edge [sic] and the
EIFS wall system and the windows that are
installed in the EIFS.
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The third item is that the EIFS system
interface at the windows has deteriorated
caulking and holes and cracks all along this
brick row/EIFS wall system. This allows
moisture to enter the interstitial wall cavities during precipitation events. This water
becomes trapped between the engineered
vapor barrier located on the outside of the
exterior wall system, and the vinyl wall
covering located on the inside of the exterior wall system.
nologies report, Gerlicher and OK Lakes disputed NAICO’s “characterization of causes of
damage.” They claimed that unresolved issues
of material fact remained regarding “the mechanism” of the damage to the property that
precluded entry of judgment in NAICO’S favor.
They argued that because EIFS was “but one of
the 3 primary causes” of damages to the building identified in the report, the district court
should apply the “efficient proximate cause”
doctrine and deny NAICO’s motion.
¶4 Gerlicher and OK Lakes brought suit
against Pinion in federal court, alleging in their
complaint that Pinion had breached its implied
warranty to complete the building in a workman-like manner and acted negligently in constructing the building, causing the need for
extensive repairs to correct construction defects
and resulting damage. Pinion notified its liability insurer NAICO of the lawsuit and requested
NAICO to defend and indemnify it in relation
to that lawsuit. NAICO agreed to provide Pinion a defense, subject to a reservation of its
right to assert that the “Commercial General
Liability” (CGL) insurance policies3 issued to
Pinion did not provide coverage for the damages sought by Gerlicher and OK Lakes.
¶6 In the journal entry of judgment filed February 18, 2010, the district court granted NAICO’s motion for summary judgment based on
the determination that NAICO had no duty to
defend or indemnify Pinion in the federal court
action and that “no coverage exists under the
[CGL policies] for any judgments that may be
obtained by Gerlicher and/or OK Lakes in the
underlying action.” From this judgment, Gerlicher and OK Lakes appeal.
¶5 On August 12, 2009, NAICO filed this
declaratory judgment action seeking a determination that the CGL policies did not provide
coverage for the damages Gerlicher and OK
Lakes sought to recover against Pinion. NAICO
moved for summary judgment on several
grounds. NAICO argued that the policies
extended coverage to damages arising from
tort, not contract, and the damages Gerlicher
and OK Lakes sought to recover from Pinion
did not arise from an accident or “occurrence”
as required by the policies. In the alternative,
NAICO argued that coverage was precluded
pursuant to several applicable policy exclusions, which excluded coverage for the damages sought, including exclusions for (1) damages arising from EIFS, (2) damages arising
from mold or mildew, (3) building related illness, (4) damages arising from Pinion’s work
or work product and (5) damages arising from
contract. In their response and objection to
NAICO’s motion, Gerlicher and OK Lakes
complained that NAICO sought to avoid its
duty to Pinion under the policies through
“conclusory statements and observations . . .
regarding the applicability of these exclusions
to the facts currently known.” Although they
did not dispute the findings of the MBA TechVol. 82 — No. 24 — 9/17/2011
STANDARD OF REVIEW
¶7 Summary judgment may only be granted
when there is no substantial controversy as to
any material fact, and one of the parties is
entitled to judgment as a matter of law. Jennings v. Badgett, 2010 OK 7, ¶¶ 4-5, 230 P.3d 861,
864. We review a grant of summary judgment
de novo, that is, without deference to the district court’s ruling. Id.
¶8 “Insurance policies are contracts interpreted as a matter of law.” BP America, Inc. v.
State Auto & Cas. Ins. Co., 2005 OK 65, ¶ 6, 148
P.3d 832, 835. Max True Plastering Co. v. United
States Fidelity and Guar. Co., 1996 OK 28, ¶ 20,
912 P.2d 861, 869; Dodson v. St. Paul Ins. Co.,
1991 OK 24, ¶ 12, 812 P.2d 372, 376. We also
review questions of law de novo. Weeks v.
Cessna Aircraft Co., 1994 OK CIV APP 171, ¶ 5,
895 P.2d 731, 733 (approved for publication by
the Oklahoma Supreme Court).
ANALYSIS
¶9 Gerlicher and OK Lakes claim that the
district court erred in granting summary judgment to NAICO, and identify these specific
issues in their petition in error: (1) whether the
damages they asserted against Pinion qualified
as an “occurrence” under the NAICO policy;
(2) whether all the damage, which was due to
multiple causes, was excluded by the EIFS
Exclusion; (3) whether the “Your Work” Exclusion applied if damages complained of were
caused by work performed by a subcontractor;
2111
and (4) whether the “efficient proximate cause”
doctrine applied so as to provide coverage for
the damages they asserted.
Relevant Terms of the NAICO CGL Policy
General Declarations
¶10 The four CGL policies in this case contain the following general declarations of insurance coverage:
SECTION I - COVERAGES
COVERAGE A. BODILY INJURY AND
PROPERTY DAMAGE LIABILITY
1. Insuring Agreement.
a. We [NAICO] will pay those sums that
the insured becomes legally obligated to
pay as damages because of . . . “property
damage” to which this insurance applies.
We will have the right and duty to
defend the insured against any “suit”
seeking those damages. However, we
will have no duty to defend the insured
against any “suit” seeking damages for
… “property damage” to which this
insurance does not apply. We may, at our
discretion, investigate any “occurrence”
and settle any claim or “suit” that may
result.
b. This insurance applies to . . . “property
damage” only if:
(1) The . . . “property damage” is caused
by an “occurrence” that takes place in
the “coverage territory”; and
(2) The . . . “property damage” occurs
during the policy period. . . .
SECTION V - DEFINITIONS
....
13. “Occurrence” means an accident,
including continuous or repeated exposure
to substantially the same general harmful
conditions.
....
B. The EIFS Exclusion4
¶11 Each of the NAICO policies contains an
identical exclusion for damages arising from
EIFS and a “Policyholder Notice” relating to
that exclusion. The EIFS “Policyholder Notice”
in each policy provides:
2112
EXTERIOR INSULATION AND FINISH
SYSTEMS (EIFS) EXCLUSION
Your liability policy contract includes the
EXCLUSION - EXTERIOR INSULATION
AND FINISH SYSTEMS (EIFS) endorsement. This endorsement excludes liability
coverage for damages that arise out of any
work that you do, work that is done on
your behalf or any other activity related to
an “exterior insulation and finish system”
(commonly called EIFS) or related to a
“direct applied exterior finish system (commonly called DEFS). This includes any
damage to a building or structure caused
by the intrusion of water or moisture
through an EIFS or DEFS system for which
you may be held responsible. Please refer
to the EXCLUSION - EXTERIOR INSULATION AND FINISH SYSTEM (EIFS)
endorsement for further details.
The EIFS exclusion in each of the four policies
provides:
EXCLUSION — EXTERIOR INSULATION
AND FINISH SYSTEMS (EIFS)
This endorsement modifies insurance
provided under the following:
COMMERCIAL GENERAL LIABILITY
COVEARAGE PART
1. This insurance does not apply to “bodily
injury”, “property damage”, “personal
injury and advertising injury” that arises
out of, is caused by, or is attributable to,
whether in whole or in part, the following:
a. The design, manufacture sale, service,
construction, fabrication, preparation,
installation, application, maintenance or
repair, including remodeling, service,
correction or replacement of an [EIFS]
system or “direct-applied exterior finish
system” or any part thereof, or any substantially similar system of any part thereof, including the application or use of
conditioners, primers, accessories, flashing, coatings, caulking or sealant in connection with such a system and including
any method or procedure used to correct
problems with installed or partially
installed systems, that was performed by
or on behalf of any insured; or
b. Any work or operations conducted by
or on behalf of any insured on or to an
[EIFS] system or “direct-applied exterior
Vol. 82 — No. 24 — 9/17/2011
finish system” any component thereof, or
any component of a building or structure
to which an [EIFS] system or “directapplied exterior finish system” attaches
that results, directly or indirectly, in the
intrusion of water or moisture into any
part of the building or structure on which
you perform such work or operations.
This exclusion shall also apply to any
“bodily injury” or “property damage” for
which any insured assumes liability in any
part of any contract or agreement, regardless of whether such contract or agreement
is an “insured contract.”
SECTION V - DEFINITIONS is amended
to include the following:
a. “exterior insulation and finish system” (commonly referred to as synthetic
stucco or EIFS) means an exterior cladding or finish system and all component
parts therein, used on any part of the
structure, and consisting of:
1. A rigid or semi-rigid insulation
board made of expanded polystyrene or
other materials; and
2. The adhesive and/or mechanical
fasteners used to attach the insulation
board to the substrate; and
3. A reinforced or unreinforced base
coat; and
4. A finish coat providing surface texture and color; and
5. Any flashing, caulking or sealant
used with the system.
....
II. General Rules of Construction
¶12 In BP America, the Court set forth the
“well-settled Oklahoma standards for insurance contract construction.” 2005 OK 65, ¶¶ 56, 148 P.3d at 835-36.
Parties may contract for risk coverage and
will be bound by policy terms. When policy provisions are unambiguous and clear,
the employed language is accorded its
ordinary, plain meaning; and the contract
is enforced carrying out the parties’ intentions. The policy is read as a whole, giving
the words and terms their ordinary meaning, enforcing each part thereof. This Court
may not rewrite an insurance contract to
Vol. 82 — No. 24 — 9/17/2011
benefit either party. It is the insurer’s
responsibility to draft clear provisions of
exclusion. We will not impose coverage
where the policy language clearly does not
intend that a particular individual or risk
should be covered. Furthermore, a split in
authority over whether a certain term is
ambiguous will not, in itself, establish an
ambiguity nor will the fact that the parties
disagree, as the issue is one of law for the
Court.
Id. ¶ 6, 148 P.3d at 835-36 (footnotes omitted).
See Dodson v. St. Paul Ins. Co., 1991 OK 24, 812
P.2d 372. Further, “’[t]he construction of an
insurance policy should be a natural and reasonable one, fairly construed to effectuate its
purpose, and viewed in the light of common
sense so as not to bring about an absurd
result.’” Id. ¶ 11, 812 P.2d at 376 (quoting Wiley
v. Travelers Ins. Co., 1974 OK 147, ¶ 16, 534 P.2d
1293, 1295). Whether an insurance contract is
ambiguous is a matter of law for the Court to
decide. Id. ¶ 12. If the terms are “unambiguous,
clear, and consistent,” then they “are accepted
in their plain and ordinary sense . . . .” Id. Policy language is ambiguous if it is reasonably
susceptible to more than one meaning on its
face. Id., 812 P.2d at 376-77; Littlefield v. State
Farm Fire and Cas. Co., 1993 OK 102, ¶ 7, 857
P.2d 65, 69.
¶13 In addressing the question of whether
the CGL policy provides coverage for the damages Gerlicher and OK Lakes have sought to
recover from Pinion, we bear in mind that
“[t]he general declaration of insurance coverage, as established by the insurance policy and
limited by its provisions, normally determines
the insurance carrier’s liability, and the
insured’s respective rights under the contract
by identifying what risks are covered and
excluded by the policy.” Dodson, 1991 OK 24,
¶ 13, 812 P.2d at 377 (footnote omitted). “[A]n
exclusion is a provision that eliminates coverage where, were it not for the exclusion, coverage would have existed” under the insurance
policy. Id. at n.11. “[P]olicy exclusions are read
seriatim; each exclusion eliminates coverage
and operates independently against the general declaration of insurance coverage and all
prior exclusions by specifying other occurrences not covered by the policy.” Id. ¶ 13, 812
P.2d at 377 (footnote omitted). “In case of
doubt, exclusions exempting certain specified
risks are construed strictly against the insurer.”
Id. (footnote omitted).
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III. Interpretation of Relevant Provisions
¶14 The EIFS Exclusion is clear, unambiguous, and effectively denies coverage for the
loss claims asserted against Pinion.5 In order to
find an ambiguity in the EIFS Exclusion, this
Court would be required to engage in a strained
and unnatural construction of the exclusion,
something that Oklahoma law does not permit.
See id. ¶ 12, 812 P.2d at 376.
¶15 We note that in Nat’l Am. Ins. Co. v. Okemah Mgmt. Co., 2008 OK CIV APP 58, 189 P.3d
1223, another Division of this Court construed
the identical EIFS exclusion in a NAICO CGL
policy and determined that it did not provide
coverage for the insured subcontractor, Okemah, for property damage claims allegedly
arising out of the EIFS Okemah installed in a
commercial building. As in this case, NAICO
filed an action seeking a declaratory judgment
that it was not required to defend or indemnify
the insured. NAICO filed a motion for summary judgment, arguing, among other things,
that various exclusions in the policy precluded
coverage. The district court granted NAICO’s
motion and entered judgment in its favor. On
appeal, the Court reviewed the Policy Holder
Notice and EIFS Exclusion, noting that they
clearly excluded “coverage for damages that
‘arise out of any work that you do . . . related to
an [EIFS] system . . . . This includes any damage to a building or structure caused by the
intrusion of water or moisture through an EIFS
system for which you may be held responsible.’” (emphasis supplied by the Court). In
affirming the district court’s grant of summary
judgment to NAICO, the Court of Civil Appeals
stated:
Okemah is being sued for property damage allegedly arising out of the EIFS system
it installed. That is the only basis for Okemah’s potential liability. However, any
damage caused by the installation, application, etc., of an EIFS system is specifically
and unambiguously excluded from coverage under its insurance policies with
NAICO whether or not Okemah (or any
other contractor or subcontractor) is ultimately found liable. The trial court properly granted summary judgment to NAICO,
finding there is no coverage under these
policies.
Id. ¶ 10, 189 P.3d at 1225-26 (footnote omitted).
The Court further held that NAICO did not
have a duty to defend Okemah because “[t]here
2114
is simply no duty to defend when there is no
coverage for the claims in the underlying suit.”
Id. ¶ 11, 189 P.3d at 1226.
¶16 We find the Court’s analysis and holdings in Okemah persuasive.6 Any coverage that
might be afforded pursuant to the insuring
agreement is clearly excluded by the EIFS
Exclusion in the NAICO policies. In light of
this finding, we do not address the arguments
raised by the parties related to the other policy
exclusions.7
Efficient Proximate Cause Doctrine
¶17 Gerlicher and OK Lakes maintain that
the “efficient proximate cause” doctrine applies
in this case and precludes the grant of summary judgment in favor of NAICO. The efficient proximate cause doctrine applies when at
least two identifiable causes combine to form a
single property loss, and one is covered under
the policy while the other one is excluded
under the policy. See Kelly v. Farmers Ins. Co.,
281 F. SupP.2d 1290, 1295-96 (W.D. Okla. 2003).
“If the cause which is determined to have set
the chain of events in motion, the efficient
proximate cause, is covered under the terms of
the policy, the loss will likewise be covered.” 7
Lee R. Russ & Thomas F. Segalla, Couch on
Insurance § 101:45 (3rd ed. 2010) (footnote
omitted).
¶18 The efficient proximate cause doctrine
has been applied in Oklahoma. See Shirey v. TriState Ins. Co., 1954 OK 214, 274 P.2d 386. In
Shirey, the insured was driving his vehicle during a wind of terrific force and velocity. Ice was
on the road. The wind blew the vehicle from
the north to the south side of the road and
turned it sideways across the road. The force of
the wind then blew the vehicle into a ditch and
against an embankment. The policy insured
against the peril of wind but excluded coverage for collision and upset. The Court held that
the insured could recover where the windstorm was the “efficient and proximate cause”
of the damage to the vehicle even if the damage may have been incidentally and indirectly
contributed to by other causes. Id. ¶¶ 8-14, 274
P.2d at 388-89. See Duensing v. State Farm Fire
and Cas. Co., 2006 OK CIV APP 15, 131 P.3d 127
(noting the doctrine of efficient proximate
cause was last recognized by the Court in
Shirey v. Tri-State and explaining that the doctrine applies when the insured demonstrates
that the proximate cause of the loss is covered
under the policy; the entire loss is covered not-
Vol. 82 — No. 24 — 9/17/2011
withstanding the fact that an event in the chain
of causation was specifically excluded from
coverage).
¶19 Gerlicher and OK Lakes argue that
application of the efficient proximate cause
doctrine in this case requires a determination
of whether some covered risk was the efficient
proximate cause of the damage to the building,
even though the covered risk might have combined or interacted with the EIFS. They insist
that this determination must be made by a jury.
We find, however, that the district court did
not err in granting NAICO summary judgment
and determining, as a matter of law, that no
coverage exists under the policies for damage
claims asserted by Gerlicher and OK Lakes.
¶20 It is true that the issue of proximate
cause in insurance coverage cases has generally
been determined to be a question of fact for
jury resolution. See Kelly, 281 F. SupP.2d at 1290
(where policy contained mold exclusion but
provided coverage for water damage from
ruptured pipes). But even if multiple factors
caused and/or contributed to the damages
resulting from water intrusion alleged by Gerlicher and OK Lakes, this would not take the
claimed damages outside of the plain and
unambiguous language of the EIFS Exclusion
in the NAICO CGL policy. The EIFS Exclusion
begins with a provision that clearly states the
policy “does not apply to ‘property damage’ …
that arises out of, is caused by, or is attributable
to [EIFS] whether in whole or in part.” The
EIFS Exclusion is neither masked by technical
or obscure language nor hidden in the policy.
Indeed, it is prominently displayed by a separate “Policyholder Notice” regarding the EIFS
Exclusion — that the CGL policy excludes liability coverage for damages that arise out of
any work done by Pinion, work done on Pinion’s behalf, “or any other activity related to”
EIFS including “any damage to a building or
structure caused by the intrusion of water or
moisture” through an EIFS system. The only
reasonable construction of the exclusion is that
when more than one cause is involved in a loss
that includes EIFS, whether directly or indirectly, there is no coverage regardless of whether the causes acted concurrently or in any
combination with EIFS. When loss is caused by
both covered perils and EIFS, the NAICO policy contains language that expressly precludes
coverage and avoids application of the efficient
proximate cause doctrine. The arguments of
Vol. 82 — No. 24 — 9/17/2011
Gerlicher and OK Lakes made in reliance on
the doctrine must fail.
¶21 “The majority of jurisdictions permit the
parties to an insurance contract to contract out
of the efficient proximate cause doctrine.” 7
Lee R. Russ & Thomas F. Segalla, Couch on
Insurance § 101:45 (3rd ed. 2010) (footnote
omitted). See Kelly, 281 F. SupP.2d at 1298-99
(wherein the Court noted that among jurisdictions adopting the doctrine, most permit parties to “contract around” it). Gerlicher and OK
Lakes have not argued that permitting parties
to “contract around” the efficient proximate
cause doctrine is prohibited under Oklahoma
law. We note that in Kelly, the federal court
examined the Oklahoma Supreme Court’s decision in Shirey and found that it “does appear to
suggest, that contracting around the efficient
proximate cause doctrine is permissible.” Kelly,
281 F. SupP.2d at 1299 (citing Shirey, 1954 OK
214, ¶¶ 15-16, 274 P.2d at 389). The Shirey
Court’s reliance on and quotation of FidelityPhenix Fire Ins. Co. of N.Y. v. Bd. of Educ. of Town
of Rosedale, 1948 OK 223, ¶¶ 6-7, 204 P.2d 982,
983, indicates that the efficient proximate cause
doctrine applies absent “definition or limitation
in the policy,” and if the insurer “desires to limit
its liability . . . it should incorporate its proposed
standard in the policy by clear terms.” See Shirey,
1954 OK 214, ¶¶ 15-16, 274 P.2d at 389.
¶22 Further, in Duensing v. State Farm Fire and
Cas. Co., 2006 OK CIV APP 15, 131 P.3d 127, the
Court, in construing the provisions of a homeowner’s policy, recognized that the “foremost
principle” of Oklahoma law governing insurance coverage disputes “is that an insurance
policy is a contract,” and parties are generally
“at liberty to contract for insurance to cover
such risks as they see fit” and will be “bound
by terms of the contract.” Id. ¶ 18, 131 P.3d at
134. The Court then concluded that specific
policy language negating the efficient proximate cause doctrine was enforceable: “’[w]e do
not insure for such loss regardless of: (a) the
cause of the excluded event; or (b) other causes
of the loss; or (c) whether other causes acted
concurrently or in any sequence with the
excluded event to produce the loss.’” Id. ¶ 17,
131 P.3d at 133-34. The Court based this conclusion on its finding that the language of the
lead-in clause to the policy’s earth movement
exclusion was unambiguous and “the only fair
construction” was, when more than one cause
was involved in a loss that included earth
movement, there was “no coverage regardless
2115
of whether the causes acted concurrently or in
any sequence with the excluded event.” Id.
¶ 21, 131 P.3d at 134.8 Because the lead-in clause
of the earth movement exclusion was “neither
masked by technical or obscure language nor
hidden in the policy” the Court found that the
policy “clearly and unambiguously avoids
application of the efficient proximate cause
doctrine.” Id.
¶23 We are persuaded by Duensing and find
that the EIFS exclusion in the NAICO policy is
enforceable, unambiguous and applies to preclude coverage where the building was damaged by a combination of, or interaction
between, EIFS and other perils that might otherwise be covered.
CONCLUSION
¶24 Based on our review of the record and
applicable law, and for the reasons set forth
above, we affirm the district court’s grant of
NAICO’s motion for summary judgment.
NAICO has no duty to defend or indemnify
Pinion against the claims for damages asserted
by Gerlicher and OK Lakes because they are
excluded from the coverage afforded by the
CGL Policy according to the clear and unambiguous terms of the EIFS Exclusion. The district court did not err in concluding that the
claims asserted within the underlying federal
court action fell within the EIFS exclusion.
¶25 AFFIRMED.
BARNES, P.J. and WISEMAN, J., concur.
1. According to the EIFS Industry Members Association, EIFS is a
multi-layered exterior wall system or cladding product that wraps the
exterior of a building. EIFS typically consists of the following components: (1) insulation board, made of polystyrene or polyisocyanurate
foam, which is secured to the exterior wall surface with a specially
formulated adhesive and/or mechanical attachment; (2) a water-resistant base coat, which is applied on top of the insulation and reinforced
with fiberglass mesh for added strength; and (3) a durable finish coat
— typically using acrylic co-polymer technology. See http://www.
eima.com/abouteifs/eifsis/ (last visited May 16, 2011).
2. The report contained the following description of the building:
“engineered metal structure built on a slab on grade engineered foundation. The lower section of the exterior structure is brick veneer, the
middle section that houses all the windows is an inset Exterior Insulating Finishing System (EIFS), and the upper portion is metal siding.”
3. Pinion was insured pursuant to four CGL polices issued by
NAICO, all of which contain substantially the same provisions.
4. For reasons discussed in Part III of this Opinion, we have found
the EIFS Exclusion applies, and its application is dispositive.
5. Allegations in the federal court complaint included: (1)”[T]he
Building was experiencing water leaks, exposing the Building to continuous and substantial water intrusion and high levels of moisture”;
(2) “The water intrusion and high levels of moisture have damaged the
Building, including without limitation widespread mildew, decay,
mold, rotting and degradation of interior air quality”; and (3) “Defects
in the construction performed by Pinion caused these water leaks,
water intrusion and high levels of moisture.” As noted above, Gerlicher and OK Lakes did not dispute the findings of the MBA Technologies report, which concluded that the building’s moisture problem
resulted from the improper slope of the brick ledge at the “vulnerable
2116
intersection” between the EIFS and the brick, allowing water to collect
against the ledge and the EIFS and the windows installed in the EIFS.
Further, deteriorated caulking and holes and cracks at the interface of
EIFS and the windows allowed “moisture to enter the interstitial wall
cavities during precipitation events.” The water entering the wall system because of these factors became “trapped” between the EIFS and
the vinyl wall covering applied to the building’s interior.
6. Opinions released for publication by order of the Court of Civil
Appeals are not binding authority but “shall be considered to have
persuasive effect.” Okla. Sup. Ct. R. 1.200(c)(2), 12 O.S.2001, ch. 2,
app.
7. The district court’s order directing NAICO to prepare the journal
entry contained this finding: “Defective workmanship that results in
damages only to the work product itself is not an ‘occurrence’ under a
commercial general liability policy.” We do not determine in this Opinion whether the moisture intrusion due to alleged defective workmanship that led to interior and structural damage constitutes an “occurrence” as defined in the CGL policies. Nor do we determine the
applicability of the mold and mildew and work product policy exclusions that NAICO also relied on in support of its motion for summary
judgment.
8. A second exclusion in the Duensing policy was introduced
instead by the words: “We do not insure for any loss to the property
described in Coverage A which consists of, or is directly and immediately caused by, one or more perils listed . . . below, regardless of
whether the loss occurs suddenly or gradually, involves isolated or
widespread damage, arises from natural or external forces, or occurs as
a result of any combination of these.” The Court held that this language, unlike the lead-in clause for the earth movement exclusion, was
not sufficient to avoid application of the efficient proximate cause
doctrine, and was not enforceable to exclude coverage where a loss
was caused by a combination of covered and excluded perils. Id.
¶¶ 31-33, 131 P.3d at 136-37.
2011 OK CIV APP 93
THE STATE OF OKLAHOMA ex rel. CRAIG
LADD, DISTRICT ATTORNEY, Plaintiff/
Appellee, vs. $457.02 in U.S. currency,
Defendant, and EMBRY JAY LOFTIS,
Appellant.
Case No. 107,350. July 13, 2011
CARTER COUNTY, OKLAHOMA
HONORABLE THOMAS S. WALKER,
TRIAL JUDGE
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS
Craig Ladd, DISTRICT ATTORNEY, Timothy W.
Burson, ASSISTANT DISTRICT ATTORNEY,
Ardmore, Oklahoma, for Plaintiff/Appellee
Embry J. Loftis, Lawton, Oklahoma Pro Se
JOHN F. FISCHER, VICE CHIEF JUDGE:
¶1 Appellant Embry Jay Loftis appeals the
denial of his motion for new trial in this forfeiture proceeding. Because the original judgment
of forfeiture was entered by default, the State
did not prove that the property seized was subject to forfeiture as required by statute. Therefore we find it was error to deny Loftis’ motion
for new trial and we reverse and remand the
case for further proceedings.
Vol. 82 — No. 24 — 9/17/2011
BACKGROUND
¶2 On January 2, 2009, Loftis was charged
with possession of a controlled dangerous substance in violation of 63 O.S. Supp. 2004 § 2402.1 At the time of his arrest, Loftis had $457.02
in his possession. The Carter County district
attorney filed a petition and notice of seizure
and forfeiture with respect to this currency
pursuant to 63 O.S. Supp. 2004 § 2-503(A)(6),
(7).2 Loftis filed his objection to the district
attorney’s petition on February 10, 2009, denying that the $457.02 was subject to forfeiture.
The matter was set for trial at 10:00 a.m. on
March 2, 2009.
¶3 The record shows that Loftis was treated
for a gun-shot wound to his ankle on February
28, 2009, at the Mercy Memorial emergency
room in Ardmore. He was released the same
day and referred to a physician for further
treatment. Loftis claims he was told to be at the
doctor’s office between 9:00 and 11:00 a.m. on
March 2. Loftis states that at 8:45 a.m. on the
morning of trial, he filed a motion for continuance. The record reflects the filing of the motion
but not the time it was filed or delivered to the
district judge. The motion represents that
Loftis’ doctor’s appointment conflicted with
the trial date, and that he had yet been unable
to obtain evidence proving that he won the
$457.02 at a casino. A minute entry reflects that
Loftis failed to appear at the trial. When the
case was called for trial, the district court
ordered the money forfeited. A Journal Entry
of Default Judgment filed March 18, 2009,
reflects that when Loftis failed to appear for the
scheduled trial on March 2, 2009, the district
attorney requested a default judgment.
¶4 At some point between March 2 and
March 13, 2009, Loftis was incarcerated in the
Carter County Detention Center. He alleges
that on March 26, 2009, he appeared for a preliminary hearing on his controlled dangerous
substance charge. At that time, the district
attorney dismissed the criminal case from
which the $457.02 had been seized. Loftis contends that on the following day he met with the
district attorney regarding the return of the
$457.02 and was served with a copy of the
March 18 Journal Entry of Default Judgment.
Loftis filed a petition for a writ of coram nobis
on March 30, 2009, in which he sought return
of the $457.02. The district court found the
requested coram nobis relief unavailable, but
treated the request as a motion for new trial,
Vol. 82 — No. 24 — 9/17/2011
which it denied on July 2, 2009. From that
order, Loftis appeals.
STANDARD OF REVIEW
¶5 “The meaning and effect of an instrument
filed in court depends on its contents and substance rather than on the form or title given it by
the author.” Whitehorse v. Johnson, 2007 OK 11,
n.13, 156 P.3d 41. The district court correctly
ruled that Loftis’ request for coram nobis relief
should be treated as a motion for new trial.3 “A
motion seeking reconsideration, re-examination,
rehearing or vacation of a judgment or final
order, which is filed within 10 days of the day
such decision was rendered, may be regarded as
the functional equivalent of a new trial motion,
no matter what its title.” Horizons, Inc. v. Keo
Leasing Co., 1984 OK 24, ¶ 4, 681 P.2d 757, 758-59.
“A trial court’s denial of a motion for new trial
is reviewed for abuse of discretion.” Reeds v.
Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 106-07;
Head v. McCracken, 2004 OK 84, ¶ 2, 102 P.3d
670, 673; Jones, Givens, Gotcher & Bogan, P.C. v.
Berger, 2002 OK 31, ¶ 5, 46 P.3d 698, 701. “An
abuse of discretion occurs when a decision is
based on an erroneous conclusion of law….”
Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76,
¶ 13, 171 P.3d 890, 895.
ANALYSIS
¶6 Loftis’ motion for new trial argued two
points: (1) after dismissal of the criminal case,
the State had no basis for forfeiting the $457.02;
and (2) he was denied his right to due process
prior to forfeiture of the $457.02. With respect
to the first issue, Loftis is clearly wrong: “there
is nothing in the [Uniform Controlled Dangerous Substances] Act which makes a subsection
2-503(A)(7)’s forfeiture dependent on an in personam criminal charge or conviction.” State ex
rel. Campbell v. Eighteen Thousand Two Hundred
Thirty-Five Dollars, 2008 OK 32, ¶ 14, 184 P.3d
1078, 1081.4 We do not reach Loftis’ second
issue because we find that property seized during an arrest cannot be forfeited pursuant to 63
O.S. Supp. 2010 § 2-5065 absent proof that the
forfeiture is statutorily authorized.
¶7 Section 2-506 of the Uniform Controlled
Dangerous Substances Act (63 O.S. Supp. 2010
§§ 2-101 to 2-608) directs any peace officer to
seize any property described in subsection A of
section 2-503. This subsection applies to the
$457.02 seized in this case. Subparagraph F
provides that if, after notice of seizure is given,
the owner files a verified answer and claim to
the property, the forfeiture proceeding shall be
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set for hearing. Subparagraph G of section 2506 provides:
At a hearing in a proceeding against property described in paragraphs 3 through 9 of
subsection A or subsections B and C of Section 2-503 of this title, the requirements set
forth in said paragraph or subsection,
respectively, shall be satisfied by the state
by a preponderance of the evidence.
We find no previous decision construing these
requirements with respect to whether the State
is relieved of its burden of proof if the property
owner fails to appear at the forfeiture hearing.
However, there is guidance provided in subparagraph E:
If at the end of forty-five (45) days after the
notice [of seizure] has been mailed or published there is no verified answer on file, the
court shall hear evidence upon the fact of the
unlawful use and shall order the property
forfeited to the state, if such fact is proved.
63 O.S. Supp. 2010 § 2-506(E) (emphasis added).
The disposition of this appeal requires construction of the cited statute. In doing so, “we
are reminded that the law abhors forfeitures
and statutes authorizing forfeiture of private
property are to be strictly construed.” State ex
rel. Redman v. $122.44, 2010 OK 19, ¶ 16, 231
P.3d 1150, 1155.
¶8 “The primary goal of statutory construction is to ascertain and follow legislative intention.” Samman v. Multiple Injury Trust Fund,
2001 OK 71, ¶ 13, 33 P.3d 302, 307. “The intent
is ascertained from the whole act based on its
general purpose and objective. In construing
statutes, relevant provisions must be considered together whenever possible to give full
force and effect to each.” Oklahoma Ass’n for
Equitable Taxation v. City of Oklahoma City, 1995
OK 62, ¶ 5, 901 P.2d 800, 803.
It is a familiar rule of constitutional and
statutory construction that sections are to
be construed so as to give effect to every
part thereof, that each provision of a section should be construed so as to harmonize with all the others, yet with a view to
giving effect to each and every provision
insofar as it shall be consistent with a construction of the section as a whole; the presumption being that every provision has
been intended for some useful purpose.
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Oklahoma Natural Gas Co. v. State ex rel. Vassar,
1940 OK 137, ¶ 10, 101 P.2d 793, 796. “[S]tatutory
construction that would lead to an absurdity
must be avoided and a rational construction
should be given to a statute if the language
fairly permits.” Ledbetter v. Oklahoma Alcoholic
Beverage Laws Enforcement Comm’n, 1988 OK
117, ¶ 7, 764 P.2d 172, 179.
¶9 Reading sections 2-506(E) and (G) together, and harmonizing the two provisions with
respect to hearing requirements for forfeiture
proceedings, we find that, whether an answer
is filed or not, the State must present evidence
sufficient to convince the trier of fact that section 2-503 authorizes the forfeiture of the
seized property. This construction avoids the
absurdity of permitting the State to order the
forfeiture of property claimed by the owner
without any evidentiary showing, but requiring the State to prove entitlement to forfeiture
of property to which no one claims ownership.
Further, this interpretation is consistent with
the Supreme Court’s interpretation of one of
the statutes on which the district attorney relies
for forfeiture. Pursuant to subsection 2503(A)(7):
[E]vidence that monies found in close proximity to any amount of a controlled dangerous substances possessed in violation of
the Act creates a presumption that the monies
are the proceeds from the distribution or
manufacture of a controlled dangerous
substance. Once the presumption arises,
the person claiming the monies may rebut
the presumption by showing that ‘the forfeited currency bore no nexus to a violation
of the Act,’ or, in other words, that there is
a legal source of the currency.
State ex rel. Campbell, 2008 OK 32, ¶ 12, 184 P.3d
at 1081 (emphasis added). This provision
requires proof by a preponderance of the evidence the property was seized while “in close
proximity” to a controlled dangerous substance. See 63 O.S. Supp. 2010 §§ 2-503, 2-506.
“Once this onus is met the burden shifts to the
claimant to rebut the statutory presumption.”
State v. One Thousand Two Hundred Sixty-Seven
Dollars, 2006 OK 15, ¶ 26, 131 P.3d 116, 125-26.
Here, however, there was no evidence offered
at the March 2, 2009 trial that the $457.02 was
found “in close proximity” to a controlled dangerous substance. Consequently, the presumption authorized by section 2-503(A)(7) never
arose.
Vol. 82 — No. 24 — 9/17/2011
‘Common experience’ and ‘the circumstances of life as we know them’ also teach
that some persons (particularly those without bank accounts) routinely carry large
amounts of money for a variety of reasons
that are perfectly legal. There is simply
nothing illegal about having a large amount
of money.
State ex rel. Campbell, 2008 OK 32, ¶ 9, 184 P.3d
at 1087-88 (Reif, J., dissenting in part). Because
no presumption of guilt6 was associated with
the $457.02, Loftis was not required to show a
legal source for the currency whether he was
present during the trial or not. An order of forfeiture may not be entered pursuant to 63 O.S.
Supp. 2010 § 2-506 by default as a result of the
failure of the person claiming ownership of the
property to appear at the forfeiture hearing.
Therefore, the district court erred as a matter of
law in denying Loftis’ motion for new trial.
CONCLUSION
¶10 The district attorney sought to have
$457.02 taken from Loftis at the time of his
arrest forfeited pursuant to 63 O.S. Supp. 2010
§ 2-503(A)(6), (7). The matter was set for trial.
When Loftis failed to appear at trial, the district
attorney requested and was granted a judgment of forfeiture by default. We find that 63
O.S. Supp. 2010 § 2-506 required the district
attorney to present sufficient evidence to establish that the $457.02 was subject to forfeiture
despite Loftis’ failure to appear. Because judgment of forfeiture was entered by default, there
is no evidence in the record showing that forfeiture was authorized by subparagraphs 6 or 7
of section 2-503(A). Therefore, it was error to
deny Loftis’ motion for new trial. The order of
the district court is reversed and the case is
remanded for further proceedings.7
¶11 REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
BARNES, P.J., and WISEMAN, J., concur.
1. Amended by Laws 2009, HB 1707, ch. 306, § 1, eff. November
1, 2009.
2. Amended by Laws 2009, HB 2250, ch. 442, § 8, emerg. eff. July 1,
2009. The statute provides in part:
A. The following shall be subject to forfeiture:
6. All things of value furnished, or intended to be furnished, in
exchange for a controlled dangerous substance in violation of the
Uniform Controlled Dangerous Substances Act, all proceeds traceable to such an exchange, and all monies, negotiable instruments,
and securities used, or intended to be used, to facilitate any violation of the Uniform Controlled Dangerous Substances Act;
7. All moneys, coin and currency found in close proximity to any
amount of forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the
importation, manufacture or distribution of substances, which
Vol. 82 — No. 24 — 9/17/2011
are rebuttably presumed to be forfeitable under the Uniform
Controlled Dangerous Substances Act. The burden of proof is
upon claimants of the property to rebut this presumption.
3. “’The office of the writ of coram nobis is to bring the attention of
the court to, and obtain relief from, errors of fact, such as . . . a valid
defense existing in the facts of the case, but which, without negligence
on the part of the defendant, was not made, either through duress or
fraud or excusable mistake; these facts not appearing on the face of the
record, and being such as, if known in season, would have prevented the
rendition and entry of the judgment questioned.’ It is a general rule that
the writ will not be granted for newly discovered evidence going to the
merits of the issues tried; issues of fact, once adjudicated, even though
incorrectly, cannot be reopened except on motion for new trial.” People v.
Tuthill, 198 P.2d 505, 506 (Cal. 1948) (citations omitted). Here, the “fact”
of Loftis’ conflicting doctor’s appointment and the “fact” he claims to
have won the money at a casino appear on the face of his motion for
continuance. His request for coram nobis relief argues for another opportunity to present those facts and evidence to support his claims. The writ
of coram nobis will not lie where the complaining party knew the fact at
the time of trial. State v. Hudspeth, 88 S.W.2d 858 (Ark. 1935).
4. We address section 2-503(A)(7) because it requires the least restrictive showing of a nexus between the property seized and a crime authorizing forfeiture, “in close proximity to” versus used “to facilitate any
violation.” However, for the reasons stated in this opinion, forfeiture
pursuant to either subparagraph 6 or 7 was not warranted in this case.
5. The 2007 version of the statute in effect at the time of these proceedings is identical in all material respects. Therefore, we will refer to
the current version of the statute for convenience.
6. See State ex rel. Campbell, 2008 OK 32, ¶ 12, 184 P.3d at 1081.
7. Loftis filed a motion to retain this case pursuant to Oklahoma
Supreme Court Rule 1.24, after it was assigned to this Court by the
Oklahoma Supreme Court. That rule provides that every appeal will
be assigned to the Court of Civil Appeals unless retained by the
Supreme Court. Pursuant to paragraph b, a party may move the
Supreme Court to retain the appeal. Because this case was assigned to
this Court, it appears that Loftis’ motion is moot. Nonetheless, a
motion to retain is directed to the Supreme Court and this Court has
no authority to decide Loftis’ motion. Loftis also filed a “Motion/Suggestion” on August 19, 2010, that the Supreme Court deferred to the
decisional stage. That motion is denied without prejudice. Loftis may
assert his claim to the $457.02 in the district court on remand. With
respect to the remaining relief requested in that motion, those matters
are raised for the first time on appeal. “[I]t 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 Assocs., 2003 OK 53, ¶ 18, 77
P.3d 581, 587 (citing Bivins v. State of Oklahoma ex rel. Oklahoma Mem’l
Hosp., 1996 OK 5, ¶ 19, 917 P.2d 456, 464).
2011 OK CIV APP 92
IN RE THE MARRIAGE OF: ANNOTRA
GUYTON, Petitioner/Appellee, vs. VICTOR
GUYTON, Respondent/Appellant.
Case No. 107,275. June 30, 2011
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE DONALD L. DEASON,
TRIAL JUDGE
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED FOR FURTHER
PROCEEDINGS
Annotra Guyton, Oklahoma City, Oklahoma
Pro Se
Melinda Nelson, Judith A. Ridgeway, THE
RIDGEWAY LAW OFFICE, Norman, Oklahoma, for Respondent/Appellant
2119
¶1 Victor Guyton (Father) appeals a default
judgment in favor of Annotra Guyton (Mother)
granting Mother’s motion to modify custody
and support, and motion to determine outstanding support. Father also appeals the district court’s denial of his motion to reconsider
and vacate the default judgment, the court’s
denial of his motion to modify child support,
and the award of attorney fees to Mother.
These appeals have been consolidated for
review by this Court. Mother failed to file a
responsive brief and the cause stands submitted on Father’s brief only.1 After reviewing the
record and applicable law, we affirm in part,
reverse in part and remand for further proceedings consistent with this Opinion.
BACKGROUND
¶2 The parties were divorced in March 2006
and awarded joint custody of their two minor
children. On February 27, 2007, Mother filed a
motion to modify child custody and support.
On September 28, 2007, Mother filed a motion to
determine outstanding support due and owing,
seeking child support arrearage (medical) and
reimbursement for medical bills incurred prior
to the divorce. The motions were set for hearing
on November 5, 2007. However, at the pre-trial
conference on October 18, 2007, Father’s attorney appeared unprepared and without a pretrial conference statement as required by the
pre-trial order. The district court granted Mother’s motions by default, over Father’s attorney’s
objection, apparently relying on Rule 5(j), Rules
for District Courts, 12 O.S. Supp. 2010, ch. 2,
app. 1, as a sanction for Father’s failure to comply with the pre-trial order. As a result, the court
terminated joint custody, awarded sole custody
to Mother with visitation for Father,2 and modified Father’s child support by adding an “in
kind” benefit to Father’s gross monthly income
based on the fact that Father had moved in with
his mother and was therefore allegedly receiving
an $800.00 per month benefit by not paying living expenses. The district court also by default
judgment ordered Father to pay past due support in the amount of $1,587.00, and $4,120.50
for outstanding medical expenses incurred prior
to the divorce during the birth of one of the
couple’s minor children.
¶3 Father filed a motion to reconsider and
vacate the default judgment on October 29,
2007. On November 13, 2007, Mother filed an
application for attorney fees. The district court
heard arguments on the motion to reconsider
and vacate, and the motion for attorney fees on
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February 1, 2008. The court denied Father’s
motion to reconsider and vacate the default
judgment, and granted Mother’s motion for
attorney fees in the amount of $9,075.00. On
February 4, 2008, Father filed a motion to
modify his child support obligation after being
terminated from his job. A hearing was held on
April 4, 2008, after which the district court
denied Father’s motion.
¶4 Father appeals the orders granting Mother’s motions, the denial of his motion to reconsider and vacate, the award of attorney fees to
Mother and the denial of his motion to modify
child support.
STANDARD OF REVIEW
¶5 The standard of review of a district court’s
denial of a motion to vacate a default judgment
is abuse of discretion. Patel v. OMH Medical
Center, Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185,
1194; Nu-Pro, Inc. v. G.L. Bartlett & Co., Inc.,
1977 OK 225, ¶ 6, 575 P.2d 618, 619. “An abuse
of discretion occurs when a decision is based
on an erroneous conclusion of law or where
there is no rational basis in evidence for the ruling.” Spencer v. Oklahoma Gas & Elec. Co., 2007
OK 76, ¶ 13, 171 P.3d 890, 895. In Oklahoma a
decision on the merits of a case is favored over
a default judgment. See Ferguson Enters., Inc. v.
H. Webb Enters., Inc., 2000 OK 78, ¶ 5, 13 P.3d
480, 482.
¶6 Proceedings to modify child support are
equitable in nature and we will affirm the district court unless the decision is against the
clear weight of the evidence. See Merritt v. Merritt, 2003 OK 68, ¶ 7, 73 P.3d 878, 881-82;
Huchteman v. Huchteman, 1976 OK 174, ¶ 27,
557 P.2d 427, 430. “Modification of child support is within” the district court’s discretion,
and the court’s judgment “will not be reversed
on appeal unless it is against [the] clear weight
of [the] evidence, or erroneous in [a] respect
that causes injustice and reflects abuse of discretion.” Huchteman, 1976 OK 174, ¶ 27, 557
P.2d at 430. “An award of attorney fees is
addressed to the sound discretion of the trial
court which decision will not be disturbed
absent an abuse of discretion.” Wood v. Wood,
1990 OK CIV APP 49, ¶ 18, 793 P.2d 1372, 1376.
See Phillips v. Phillips, 1976 OK 165, ¶ 10, 556
P.2d 607, 610.
ANALYSIS
I. Modification of Visitation
Vol. 82 — No. 24 — 9/17/2011
¶7 After Father failed to respond to her
motion to modify custody and support and her
motion to determine outstanding support,
Mother filed a motion for default judgment on
October 16, 2007.3 Mother’s motion for default
was to be heard two days later at the pre-trial
conference on October 18, 2007, along with
Mother’s other motions. The district court
stated at the hearing on Father’s motion to
reconsider and vacate that its decision to enter
default judgment against Father at the pre-trial
conference was based on Rule 5(j), Rules for
District Courts, 12 O.S. Supp. 2010, ch. 2, app.
1, which provides that a party’s “[f]ailure to
prepare and file a scheduling order or pretrial
order, failure to appear at a conference, appearance at a conference substantially unprepared,
or failure to participate in good faith may
result in . . . sanctions” that include default
judgment.4 The district court’s journal entry of
judgment states that the “order shall be entered
by default,” finding a “permanent, material,
substantial change in circumstances,” and that
“this change in conditions necessitates restrictions on father’s contact with the children.”
The court determined that pursuant to Rule 5 it
had authority to enter a default judgment
against Father when counsel for Father
appeared at the pre-trial conference substantially unprepared.5
¶8 Father contends the district court’s entry
of the default judgment is contrary to the Oklahoma Supreme Court’s decision in White v.
White, 2007 OK 86, 173 P.3d 78. In that case the
Court held it was an abuse of discretion to grant
a motion to modify a custody order in a contested proceeding based on Rule 4(e), Rules for
District Courts, 12 O.S.2001, ch. 2, app. 1, without having a hearing on the merits of the motion.
Id. ¶ 12, 173 P.3d at 80-81. The Court held:
[U]nder no circumstances may a modification in custody based on a change of circumstances be effected unless the requesting parent demonstrates: 1) a permanent,
substantial and material change in circumstances; 2) the change in circumstances
must adversely affect the best interests of
the child; and 3) the temporal, moral and
mental welfare of the child would be better
off if custody is changed to the other parent
as requested.
Id. ¶ 8, 173 P.3d at 80 (citing Daniel v. Daniel,
2001 OK 117, ¶ 17, 42 P.3d 863, 869). “In applying the three-prong test ‘the best interests of
the child must be a paramount consideration of
Vol. 82 — No. 24 — 9/17/2011
the trial court when determining custody and
visitation.’ The interests of judicial economy
are by far secondary.” Id. ¶ 9 (quoting Daniel,
2001 OK 117, ¶ 21, 42 P.3d at 871). The Court
specifically held that: “Rule 4e was not intended to provide a mechanism for default judgment in a request for modification of child
custody.” Id. In reversing the district court’s
custody order in White, the Supreme Court
found that “the trial court failed to consider the
requirements that must be met before a child’s
custody can be modified based on the assertion
that the circumstances of the parties have
changed materially since a prior custody order.”
Id. ¶ 7. White holds that in every custody decision “the parents and the child are entitled to an
adversary hearing regarding the existence of a
material change in circumstances and a considered determination of the best interests of the
child.” Id. ¶ 12, 173 P.3d at 80-81. And, “[t]he best
interests of the child can be determined only by
the evidence actually presented in an evidentiary hearing.” Id. “A request for modification of
child custody is far too important to be decided
essentially by default under the Rules for the
District Courts. Those rules were established to
facilitate the adjudication of civil disputes, not to
impede the presentation of evidence in a child
custody dispute.” Id. ¶ 13, 173 P.3d at 81. We find
the Court’s analysis equally applicable to Rule 5
and consistent with the determination on the
merits required of similarly important motions.6
¶9 In this case, however, the district court
determined White was inapplicable because
Father did not contest termination of joint custody. We agree that the White holding indicates
that it was intended to apply to contested custody proceedings. Father acknowledges that he
stipulated to the termination of joint custody
and award of custody to Mother with visitation
for Father. Father does not contest the termination of joint custody on appeal and the district
court’s order is affirmed in this respect.
¶10 However, based on the reasoning in
White, Father does challenge the district court’s
order to the extent that it imposed visitation
restrictions by default judgment. Although the
law allows for modification of a child custody
order “whenever circumstances render the
change proper,” 43 O.S.2001 § 112(A)(3), a decision to modify or change custody must be
based on a finding of a “material change in
circumstances.” See Daniel v. Daniel, 2001 OK
117, ¶ 17, 42 P.3d 863, 869; Puett v. Miller, 2001
OK CIV APP 43, 623 P.3d 979. “[W]hen custody
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is disputed, no change in custody may be
ordered” without a showing of the evidence
required by statute, even when district court
rules would allow a different result. White v.
White, 2007 OK 86, ¶ 1, 173 P.3d 78, 79. “The
express authority for a court, in a divorce case,
to modify or change its prior order concerning
the custody of minor children of the marriage
involved, including orders made, as herein, subsequent to the final decree of divorce, is” provided by statute. Gibbons v. Gibbons, 1968 OK 77,
¶ 4, 442 P.2d 482, 484. See 43 O.S.2001 § 112(A)(3).
“’In a proceeding to modify provisions of an
order relating to custody of child,’” the applicant bears the “’burden of proof . . . to show a
substantial change in conditions since entry of
[the] order sought to be modified which bear
directly upon welfare and best interest of [the]
child . . . .’” Id. ¶ 7 (quoting Young v. Young, 1963
OK 14, ¶ 0, 383 P.2d 211 (Syllabus 2)). And,
“’provisions for care and custody of minor children may not be modified unless it be shown
that the circumstances of the parties have
changed . . . .’” Id. ¶ 8 (quoting Ness v. Ness, 1960
OK 259, ¶ 7, 357 P.2d 973, 975).
¶11 In its journal entry of judgment the district court imposed certain restrictions on
Father’s visitation with the children, including
that the children shall have no contact with
anyone Father is romantically involved with.
Although we recognize the district court’s
authority to impose restrictions on visitation, the
reasoning in White requires that such restrictions
“be based on evidence presented, rather than on
allegations of one party to a child custody dispute.” See White, 2007 OK 86, ¶ 10, 173 P.3d at
80.7 Therefore, that portion of the district court’s
order addressing Father’s visitation is vacated.
Any restrictions on Father’s visitation shall be
addressed on remand consistent with the requirements announced in White.
II. Mother’s Motion to Modify Support
¶12 Father also claims it was error for the
district court to grant Mother’s motion to
modify support and determine outstanding
medical support by default. Father claims the
notice requirements for motions for default
judgment were not complied with because
Mother filed her motion for default judgment
only two days prior to the pre-trial conference.
Father correctly points out that district court
rules require five days’ notice before a motion
for default judgment may be granted:
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In matters in default in which an appearance . . . has been made or a motion or
pleading has been filed, default shall not be
taken until a motion therefore has been
filed in the case and five (5) days notice of
the date of the hearing is mailed or delivered to the attorney of record for the party
in default or to the party in default if he is
unrepresented or his attorney’s address is
unknown.
Rule 10, Rules for District Courts, 12 O.S.2001,
ch. 2, app. 1. In addition, Father claims he did
not receive notice Mother’s motions would be
heard on the date of the pre-trial conference
because they were filed after the pre-trial order
was issued.
¶13 Finally, Father argues that White precludes modification of his support obligation
and determination of any outstanding support
by default. The statutory authority to modify a
support order is also provided in 43 O.S.2001
§ 112(A)(3), and must be based on a showing of
a material change in circumstances. Based on
the same reasons stated in Part I of this Opinion, we find that it was error to modify Father’s
support obligation and determine any outstanding support by default judgment. Father
is entitled to a hearing on the merits of these
issues on remand.8
III. Father’s Motion to Modify Child Support
¶14 Father moved to modify his child support obligation on February 4, 2008, after being
terminated from his job. Mother’s response to
the motion claims Father’s termination was
due to his own conduct, and that Father had
deliberately reduced his income. After hearing
the matter on April 4, 2008, the district court
denied Father’s motion.
¶15 We recognize that modification of support is within the sound discretion of the district court. Huchteman v. Huchteman, 1976 OK
174, ¶ 27, 557 P.2d 427, 430. The court is authorized to “impute as gross monthly income for
either parent the amount a person with comparable education, training and experience could
reasonably expect to earn” if it is equitable to
do so. 43 O.S. Supp. 2006 § 118(E)(4)(b). “Oklahoma follows the rule that ‘equity will normally not favor reduction of a child support
obligation where the parent’s financial condition is due to his/her fault, or voluntary wastage or dissipation of his/her talents and
assets.’” Parnell v. Parnell, 2010 OK CIV APP 74,
¶ 8, 239 P.3d 216, 218-19 (quoting State ex rel.
Vol. 82 — No. 24 — 9/17/2011
Dep’t of Human Servs. v. Baggett, 1999 OK 68,
¶ 23, 990 P.2d 235, 244). There is evidence in the
record supporting the conclusion that Father
was terminated from his job due to poor performance. However, in October 2007, at the
time Mother’s motion to modify support was
granted by default, the district court determined that Father’s average monthly income
was $4,425.92. This amount included $800.00
imputed to Father based on the fact that he was
then living with his mother and not required to
pay rent. The $4,425.92 figure was used to calculate Father’s monthly child support obligation of $854.18.
¶16 “[I]n-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be
counted as income if they are significant and
reduce personal living expenses. Such payments may include . . . free housing . . . .” 43
O.S. Supp. 2006 § 118(E)(3)(e) (amended by
Laws 2007, HB 2195, ch. 1, § 25, emerg. eff. February 22, 2007 (amended by Laws 2008, SB 2194,
ch. 407, § 1, eff. July 1, 2009)). The language of
the statute makes clear that such in kind benefits
are those “received by a parent in the course of
employment.” Id. Consequently, money Father
may have saved on living expenses by moving
in with his mother are not covered by the statute. The denial of Father’s motion to modify left
his support obligation at $854.18 based in part
on the $800.00 of income imputed to Father as a
result of granting of Mother’s motion to modify
support by default. For the reasons stated in
Part II, Father is entitled to a hearing on this
issue. The order denying Father’s motion to
modify is vacated, and the appropriate amount
of Father’s child support obligation shall be
determined on remand.
IV. Attorney Fees
¶17 Finally, Father argues that the district
court erred in awarding Mother $9,075.00 in
attorney fees. We will not reverse the district
court’s award of attorney fees unless that
award appears to be an abuse of discretion.
Hester v. Hester, 1983 OK 50, ¶ 7, 663 P.2d 727,
729. At the hearing on Mother’s motion for
attorney fees counsel for Father stipulated to
the reasonableness of those fees and stipulated
that Mother actually incurred these fees.
Father’s only contention is that it was error to
order him to pay any amount of these fees. The
statutory authority to award attorney fees in an
action for modification of a custody and support agreement allows such an award upon “a
Vol. 82 — No. 24 — 9/17/2011
judicial balancing of the equities” in the case.
Thielenhaus v. Thielenhaus, 1995 OK 5, ¶ 19, 890
P.2d 925, 934-35 (holding that an attorney fee
award does not “depend on one’s status as
prevailing party in the case,” but is “granted
only to that litigant who qualifies for the benefit through the process of a judicial balancing
of the equities”). See 43 O.S.2001 §§ 110, 111.1
Pursuant to this standard a court may consider
the behavior of the parties to an action, including “whether either party unnecessarily complicated or delayed the proceedings, or made
the subsequent litigation more vexatious than
it needed to be . . . .” Finger v. Finger, 1996 OK
CIV APP 91, ¶ 14, 923 P.2d 1195, 1197-98. The
district court in this case based its award of
attorney fees on Father’s conduct during the
proceedings.9 We find the record indicates that
Father’s behavior in this case warrants the
assessment of attorney fees, and that it was not
an abuse of discretion for the district court to
award such fees.10
CONCLUSION
¶18 Father claims the district court erred by
entering judgment by default in favor of Mother modifying child visitation and support, and
determining Mother was entitled to outstanding support. The district court entered its order
as a sanction pursuant to Rule 5(j) based on
Father’s failure to comply with the court’s pretrial order. We find it was error to grant Mother’s motions by default without conducting a
hearing on whether Mother demonstrated a
material change in circumstances, as required
by law, and therefore reverse the district court’s
decision on this matter. We vacate the district
court’s order denying Father’s motion to modify support and remand for further proceedings to determine the proper amount of Father’s
child support obligation, any outstanding support and any limitations on Father’s visitation.
We affirm the district court’s award of attorney
fees to Mother.
¶19 AFFIRMED IN PART, REVERSED IN
PART AND REMANDED FOR FURTHER
PROCEEDINGS.
1. “Where there is an unexcused failure to file an answer brief, this
Court is under no duty to search the record for some theory to sustain
the trial court judgment; and where the brief in chief is reasonably
supportive of the allegations of error, this Court will ordinarily reverse
the appealed judgment with appropriate directions.” Cooper v. Cooper,
1980 OK 128, ¶ 6, 616 P.2d 1154, 1156. See Oklahoma Supreme Court
Rule 1.10, 12 O.S.2001, ch. 15, app.
2. Father did not object to the court’s termination of joint custody
and award of sole custody to Mother. Father does, however, object to
2123
the district court’s ruling that the children may not have any contact
with anyone Father is romantically involved with unless Father is married to that person.
3. Rule 4(e), Rules for District Courts, 12 O.S.2001, ch. 2, app. 1,
provides: “Any party opposing a motion, except those enumerated in
Section c above, shall serve and file a brief or a list of authorities in
opposition within fifteen (15) days after service of the motion, or the
motion may be deemed confessed.” Mother filed the motion to modify
custody and support on February 27, 2007, and the motion for outstanding support was filed on September 28, 2007. Father’s response was not
filed until October 18, 2007, the date of the pre-trial conference.
4. A court minute from the pre-trial conference indicates default
judgment was granted for Father’s failure to file a timely answer to
Mother’s motions. We find that our analysis in this case is not changed
based on whether the district court acted pursuant to Rule 4 or Rule 5
in entering default judgment. Both rules serve a similar purpose and
are intended to apply to pre-trial procedure.
5. The record shows that the idstrict court found Father’s conduct
during the proceedings demonstrated a “lack of compliance with the
court’s scheduling order,” a “complete lack of preparation, appearance
at the pretrial conference without a pretrial statement,” and that it was
“one of the more egregious wastes of this Court’s time” that placed “an
undue burden on [Mother].”
6. See Record v. Record, 1991 OK 85, 816 P.2d 1139 (finding it was
error for the district court to deny a motion for a new trial without
addressing the merits of the motion); Liberty Bank & Trust Co. v. Murray,
1996 OK CIV APP 39, 924 P.2d 781 (holding the court must review the
merits of a motion for attorney fees rather than deeming the motion
confessed pursuant to Rule 4); Westlake Presbyterian Church, Inc. v.
Cornforth, 1996 OK CIV APP 159, 940 P.2d 1208 (finding the court
should examine the merits of a motion to vacate before deeming it
confessed); Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d
682 (approved for publication by the Oklahoma Supreme Court)
(motions for summary judgment cannot be deemed confessed pursuant to Rule 4 for a party’s failure to respond).
7. In White, the Court further based its opinion on the reasoning
that “[a] custody modification . . . impacts the right of a parent to the
care, custody, companionship and management of his or her child
[which] is a fundamental right protected by the federal and state constitutions.” White, 2007 OK 86, ¶ 12, 173 P.3d at 80 (citations omitted)
(alterations in original). Because we base our ruling on the finding that
changes to custody or support orders must be based on a showing of
the evidence required by law, rather than granted by default judgment
as a sanction pursuant to Rule 5, we do not address Father’s argument
that the holding in White should be extended to cases involving
“modification of child custody, support and issues incidental to custody and support,” because of the impact on fundamental rights.
8. Our conclusion is supported by Oklahoma’s general jurisprudence regarding default judgments. “Oklahoma views default judgments with disfavor and has an affirmative policy of affording ‘every
party to an action a fair opportunity to present his side of a cause.’”
Hotels, Inc. v. Kampar Corp., 1998 OK CIV APP 93, ¶ 9, 964 P.2d 933, 935
(quoting Burroughs v. Bob Martin Corp., 1975 OK 80, ¶ 23, 536 P.2d 339,
342). “As a sanction, default judgments have been granted only when
the . . . misconduct has been willful and extreme.” Id. (citing Amoco
Production Co. v. Lindley, 1980 OK 6, ¶ 18, 609 P.2d 733, 738). Therefore,
“granting of a default judgment as a sanction should be a method of
last resort, rather than first resort.” Id. See Barnett v. Simmons, 2008 OK
100, ¶ 18, 197 P.3d 12, 19. Although Father’s counsel appeared at the
pre-trial conference without a pre-trial statement and unprepared to
have a hearing on Mother’s motions, “[l]itigants whose counsel may
have abused the litigation process should not always be penalized by
denying them an opportunity to litigate their claim on the merits.”
Durant Civic Found., Inc. v. The Grand Lodge of Okla. of the Indep. Order of
Odd Fellows, 2008 OK CIV APP 54, ¶ 16, 191 P.3d 612, 617. Additionally,
Mother filed the motion for default judgment only two days prior to
the pre-trial hearing. “Parties who make an appearance cannot be
adjudged in default without advance notice.” Enochs v. Martin Properties, Inc., 1997 OK 132, ¶ 13, 954 P.2d 124, 129. See Durant Civic Found.,
Inc., 2008 OK CIV APP 54, ¶ 11, 191 P.3d at 615 (“Where . . . an entry of
appearance has been filed, Rule 10 requires notice to the defaulting
party in advance of any hearing on the motion for default judgment”).
And, the record does not indicate that the district court “considered
the efficacy of lesser sanctions” before imposing “the most severe sanction allowed by the statute, the granting of a default judgment.” Hotels,
Inc., 1998 OK CIV APP 93, ¶ 15, 964 P.2d at 936. “Only when the aggravating factors outweigh the Oklahoma judicial system’s strong predisposition to resolve cases on their merits is default judgment an appropriate sanction.” Id. ¶ 19, 964 P.2d at 937. See Barnett, 2008 OK 100, ¶¶
18, 26, 197 P.3d at 19, 21.
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9. The court cited Father’s conduct that included failure to comply
with discovery requests and the scheduling order, and that Mother had
to institute contempt proceedings against Father to compel compliance.
10. We note that the district court further had authority to award
attorney fees pursuant to Rule 5 for non-compliance with pre-trial
orders.
2011 OK CIV APP 97
DEYO PADDYAKER and DONNA PADDYAKER, individuals, Plaintiffs/Appellants,
vs. JUANITA GRIFFITH and NEWCASTLE
PUBLIC WORKS AUTHORITY, Defendants/
Appellees.
Case No. 108,276. April 29, 2011
McCLAIN COUNTY, OKLAHOMA
HONORABLE CHARLES GRAY, JUDGE
AND REMANDED
L. Mark Walker, Reagan Bradford, CROWE &
DUNLEVY, Oklahoma City, Oklahoma, for
Plaintiffs/Appellants,
Michael D. McMahan, Eugene Bertman, RUBENSTEIN, McCORMICK & PITTS, P.L.L.C.,
Edmond, Oklahoma, for Defendant/Appellee,
Juanita Griffith,
Teddy Wayne Haxel, Purcell, Oklahoma, for
Defendant/Appellee, Newcastle Public Works
Authority.
Bay Mitchell, Presiding Judge:
¶1 Deyo Paddyaker and Donna Paddyaker,
Plaintiffs/Appellants (“Paddyakers”), appeal
an order dismissing their case pursuant to 12
O.S. 2001 §2012(B)(1) for lack of subject matter
jurisdiction and on the applicable statute of
limitations.
¶2 The Paddyakers allege Defendant/Appellee Griffith in 1987 wrongfully conveyed to the
Newcastle Public Works Authority (Authority)
water and easement rights belonging to the
Paddyakers.1 Paddyakers seek to quiet title to
the 75 acres they own from which the water
rights were conveyed. They also seek damages
for conversion of the water and unjust enrichment for the water wrongfully taken. Griffith
and Authority challenged the jurisdiction of
the district court to consider this case on the
basis that the Oklahoma Water Resources Board
(“The Board”) in 1987 granted a groundwater
permit to the Authority to which Paddyakers
neither objected nor appealed. Griffith and the
Authority contend the permit is a determination that Griffith owns the water rights associ-
Vol. 82 — No. 24 — 9/17/2011
ated therewith, that the determination is final
and cannot be challenged by the Paddyakers.
Paddyakers characterize this dispute as a quiet
title action as distinguished from a groundwater rights challenge, and additionally contend
there was no determination of title to the property at the time of issuance of the groundwater
permit in 1987. Paddyakers claim this to be
their property and attached to their Petition
copies of deeds purporting to establish their
ownership. Paddyakers further contend the
trial court has exclusive jurisdiction to make a
first instance determination of title.
¶3 “When reviewing a trial court’s dismissal
of an action an appellate court examines the
issues de novo.” Rogers v. Quiktrip Corp., 2010
OK 3, ¶4, 230 P.3d 853, 855-56 (footnote omitted). “The purpose of a motion to dismiss is to
test the law that governs the claim in litigation
rather than to examine the underlying facts of
that claim.” Id.
¶4 The record reflects that in 1987, as part of
Authority’s Application to the Water Resources
Board, Paddyakers were identified as “adjacent land owners” to Griffith and were sent a
notice by certified mail of the Authority’s
intent to use groundwater.2 Additionally, notice
of the application was published twice in a
local newspaper in the summer of 1987. Despite
such notice, the Paddyakers remained silent
until the filing of this action in 2009 wherein
they seek to establish/defend their title to the
subject property including the water rights
therewith.
¶5 Griffith and the Authority argue Paddyakers’ case is a thinly veiled attempt to collaterally
challenge a 1987 order of an administration
agency that was ignored at the time; that this
attempt is barred by Paddyakers’ failure, pursuant to the Oklahoma Administrative Procedures
Act, to appeal the Board’s final order within 30
days of receiving notice of that order. 75 O.S.
2001 §318(B)(2). They point out that the timely
filing of petition for review in the district court
of an adverse administrative decision pursuant
to §318 is jurisdictional and “if an appeal is
brought untimely, the court has no power to
decide the case.” Conoco, Inc. v. State Dep’t of
Health, 1982 OK 94, 651 P.2d 125, 128.
¶6 Clearly, the Agreement (also referred to
by the parties as a lease) was presented to the
Board as part of Authority’s Application and it
unequivocally depicts Griffith’s warranty of
ownership. The record fails to disclose what
Vol. 82 — No. 24 — 9/17/2011
evidence, if any, Griffith presented in support
of her claim of ownership at the time she executed the Agreement. There apparently was no
objection raised to Griffith’s proof of ownership, if any, in the 1987 proceedings.3 Because
there was no objection raised and therefore no
evidence offered in challenge to Griffith’s warranty of title, there was no actual determination
of title in that proceeding, but rather, consideration and acceptance of uncontradicted proof of
Griffith’s ownership.
¶7 The Water Resources Board is not the arbiter of private property disputes, although it
has exclusive authority to regulate groundwater use and issue permits allowing its withdrawal. See Ricks Exploration Co. v. Oklahoma
Water Resources Bd., 1984 OK 73, 695 P.2d 498,
501. “[T]he adjudication of title to real property
has long been within the purview of the [district] court’s original jurisdiction.” Red Rock
Petroleum Co., Inc. v. City of Choctaw, 1984 OK
CIV APP 45, 689 P.2d 1286, 1287; see Samson
Resources Co. v. Oklahoma Corp. Comm’n, 1993
OK CIV APP 67, 859 P.2d 1118, 1120 (holding
the Corporation Commission is a body of limited jurisdiction and does not have jurisdiction
to determine title in vested property interests).
Insomuch as the district court clearly is vested
with authority to render a first-instance adjudication of title to the subject property, the trial
court erred in its dismissal of the matter for
lack of subject matter jurisdiction.
¶8 The trial court additionally dismissed the
action on the basis that it was barred by “the
applicable statute of limitations.” However, we
note that statutes of limitation are inapplicable
in quiet title actions because of the equitable
character of the action. Hester v. Watts, 1950 OK
131, 218 P.2d 641; see Alfrey v. Richardson, 1951
OK 133, ¶0, 231 P.2d 363, 364 (Syllabus by the
Court, ¶4) (providing “in an action to quiet
title where the plaintiff has been in continuous
possession of the property, claiming an equitable title therein, may be maintained at any time
while in possession, and no statute of limitation will bar such action.”); see also Sullivan v.
Buckhorn Ranch Partnership, 2005 OK 41, ¶34,
119 P.3d 192, 194 (holding in a quiet title action
in which statute of limitations defense was
raised, genuine issues of material fact concerning the application of equitable defenses precluded summary judgment). Pursuant to these
authorities, we find the trial court erred in its
determination that Paddyakers’ quiet title
action was barred by the statute of limitations.
2125
¶9 Paddyakers also seek damages for conversion and unjust enrichment. Whereas the
quiet title action is not barred by limitations,
the same cannot be said for the conversion and
unjust enrichment claims. Ordinarily, and
assuming these are not intentional torts, these
claims are subject to the two-year limitations
period of 12 O.S. 2001 §95(A)(3). Appellees
argue that even if the shorter limitations period
does not apply, and the claims are considered
“actions for the recovery of real property” they
would still be barred by the fifteen-year period
of limitations of 12 O.S. 2001 §93(4). We agree
that uncontroverted evidence establishes the
conversion and unjust enrichment claims are
barred by the statute of limitations.4
¶10 Our de novo review of the record supports the trial court’s dismissal of Paddyakers’
unjust enrichment and conversion claims on
the basis of the running of the statute of limitations. However, the trial court erred in its
determination that it was without subject matter jurisdiction over this quiet title action and
in its dismissal of same. Thus, the April 5, 2010
Judgment Sustaining Motion to Dismiss is
AND this case is REMANDED for further proceedings consistent herewith.
JOPLIN, J., and BUETTNER, J., concur.
1. Griffith and the Authority executed a Water Rights Agreement
on March 27, 1987 in which Griffith conveyed water rights to Authority and granted Authority a permanent easement for purposes of drilling water wells. The agreement and easement states Griffith “is the
owner of” and covers the following described real property: “That part
of the SE/4 of Section 20-10N-4W, McClain County, Oklahoma lying
South of the center line of the South Canadian River and the E/2 of
Section 29-10N-4W, McClain County, Oklahoma.” The agreement also
contains the following at ¶8:
OWNER [Griffith] hereby covenants and warrants that at the
time of delivery of this instrument they are the owners of the
above described real property in fee simple and that so [sic] they
will defend the same unto PURCHASER, its officers, agents,
contractors, and employees for the purposes aforesaid.
In April 1987, the Authority applied to the Oklahoma Water Resources
Board for the permit which was granted on July 15, 1987 allowing
Authority to use no more than two acre-feet of water per year per acre
of land.
2. The Motion to Dismiss is supported by the June 10, 1987 affidavit of an Authority employee, which attests to his notification by certified mail “all immediately adjacent landowners of my intention to use
groundwater under my groundwater application number 87-527,
McClain County.” Deyo and Donna Paddyaker are specifically identified as adjacent land owners in a document submitted with the
Authority’s 1987 application.
3. Title 82 O.S. Supp. 2009 §1020.9(A)(1)(a) provides in pertinent part:
“Before the Oklahoma Water Resources Board takes final action on an
application, the Board shall determine from the evidence presented, from
the hydrologic surveys or reports and from other relevant data available
to the Board and applicant, whether: a. the lands owned or leased by the
applicant overlie a fresh groundwater basin or subbasin….”
4. Although the statute of limitations challenge is raised by a
motion to dismiss, because of the evidentiary materials filed with and
supporting the motion, we treat it as a motion for summary judgment
subject to de novo review.
2126
2011 OK CIV APP 99
RICHARD BROWN, Plaintiff/Appellant, vs.
OKLAHOMA FARM BUREAU MUTUAL
INSURANCE COMPANY and AG
SECURITY INSURANCE COMPANY,
Defendants/Appellees.
Case No. 108,726. May 27, 2011
CHEROKEE COUNTY, OKLAHOMA
HONORABLE DARRELL G. SHEPHERD,
JUDGE
AFFIRMED
Steven V. Buckman, BUCKMAN & ROACH,
Tulsa, Oklahoma, for Plaintiff/Appellant,
Stephen M. Coates, WILSON, CAIN & ACQUAVIVA, Tulsa, Oklahoma, for Defendants/
Appellees.
Kenneth L. Buettner, Judge:
¶1 Plaintiff/Appellant Richard Brown
appeals from summary judgment entered in
favor of Defendants/Appellees Oklahoma
Farm Bureau Mutual Insurance Company
(Farm Bureau) and AG Security Insurance
Company (AG) (collectively, Insurers). Brown
sought damages for bad faith and breach of
contract. The undisputed evidence shows the
policy excluded coverage for Brown’s claim;
necessarily Insurers had a reasonable basis to
deny the claim. Farm Bureau and AG were
entitled to judgment as a matter of law and we
affirm.
¶2 In his Petition, Brown asserted that after
he purchased a policy from Insurers and made
a claim seeking a defense and indemnity in a
lawsuit against him, Insurers denied his claim
and he ultimately was found liable for negligence in the lawsuit. Brown made claims for
breach of contract, bad faith and fraud; he
sought actual and punitive damages. Insurers
denied Brown’s claims and filed separate
Motions for Summary Judgment.
¶3 In its Motion for Summary Judgment,
Farm Bureau asserted the following facts were
undisputed and supported judgment in its
favor: 1) Brown’s insurance policy was issued
by AG; 2) AG is a subsidiary of Farm Bureau,
but AG is a distinct insurance company doing
business in Oklahoma; 3) the policy was not
issued by Farm Bureau; 4) AG uses Farm
Bureau’s claims personnel for claims handling;
Vol. 82 — No. 24 — 9/17/2011
5) AG pays Farm Bureau for its claims handling services, but neither Farm Bureau nor its
employees receive any benefit based on approval or denial of claims made under AG policies;
6) Farm Bureau does not share the risk of losses
on policies issued by AG; and 7) claims paid on
policies issued by AG are paid solely by AG
and are not paid by Farm Bureau.
¶4 Farm Bureau contended that because
Brown’s policy was issued by AG, there was no
contract between Brown and Farm Bureau and,
necessarily Farm Bureau could not be liable for
breach of contract. Farm Bureau relied on
Wathor v. Mut. Assur. Admin, Inc., 2004 OK 2, 87
P.3d 559 and Wolf v. Prudential Ins. Co. of America, 50 F.3d 793 (10th Cir. 1995) to contend that
an insurance company handling claims for the
policy-issuing insurer must have a financial
interest in claims decisions in order to owe a
duty of good faith as the insurer.1 Farm Bureau
asserted that it owed no duty of good faith to
Brown and therefore he had no claim against
Farm Bureau as a matter of law.2
¶5 In its Motion for Summary Judgment, AG
asserted the following undisputed facts
required judgment in its favor: 1) Brown was
insured by AG under a CGL policy, No. 0500247CG1, which was effective July 17, 2003 to July
17, 2004; 2) the Northrups filed a lawsuit
against Brown and others in Cherokee County
Case No. CJ-2004-633 on August 25, 2004; 3)
the Northrups’ Petition alleged they entered a
contract to buy real property owned by the
Silvas in Tahlequah; 4) the Northrups further
alleged that the Silvas concealed structural
defects in the property; 5) the Northrups alleged
that Brown conducted an inspection of the
property; 6) the Northrups alleged that Brown
“concealed from Plaintiffs and failed to disclose to them material facts concerning defects
in the house and property, and particularly
material facts concerning structural defects in
the house;” 7) the Northrups alleged that
Brown willfully, intentionally, and materially
misrepresented the condition of the property
with the intent to defraud the Northrups and
to induce them to purchase the property; 8) the
Northrups’ Petition alleged that Brown was
grossly negligent in his inspection and his failure to properly inspect or report caused the
Northrups to purchase property they would
not have purchased if a proper inspection had
been done and reported; 9) the Northrups
attached as Exhibit 3 to their Petition a copy of
the inspection contract, inspection report, and
Vol. 82 — No. 24 — 9/17/2011
paid invoice; 10) on or about September 1,
2004, Brown provided to Farm Bureau, on
behalf of AG, a copy of the Petition and exhibits; 11) on September 14, 2004, after obtaining a
legal opinion regarding coverage, Todd Desmet issued a letter denying coverage and a
defense to Brown with respect to the Northrups’
claims against Brown, pursuant to the policy;
and 12) AG denied coverage based on the
absence of an occurrence, as defined by the
policy; the absence of a claim for property
damage, as defined by the policy; the policy’s
exclusion of coverage for property damage
expected or intended by the insured; the policy’s exclusion of coverage for liability of the
insured because of rendering or failing to render professional services in the performance of
an inspection; and the policy’s exclusion for
damage to impaired property or property
which is not physically injured.
¶6 In his Response to Farm Bureau’s Motion
for Summary Judgment, Brown asserted he
disputed every statement of fact alleged. Brown
asserted Farm Bureau was a de facto insurer of
his policy. Brown also incorporated by reference his longer Response to AG’s Motion for
Summary Judgment.
¶7 In his Response to AG’s Motion for Summary Judgment, Brown disputed AG’s statements of fact 1, 8, 11, and 12. Brown’s dispute
as to fact 1 is that the policy attached to AG’s
motion was incomplete. As to fact 8, Brown
asserted that “a proper investigation would
have revealed the Northrups were asserting
negligence and differing conclusions could be
reached by reasonable persons as to the adjuster’s claim activities.” Brown disputed fact 11
by asserting there is no written legal opinion in
the claim file and “the file is silent regarding
the facts given the alleged attorney upon which
to base the opinion.” Brown asserted missing
policy language, specifically about “products/
completed operations,” coverage could have
changed the outcome of a legal opinion on his
claim. Finally, Brown disputed fact 12, asserting it did not contain all relevant and material
portions of his policy.
¶8 Brown alleged several additional facts
which he asserted precluded summary judgment in favor of Insurers. Brown claimed the
investigation of his claim was inadequate on
several bases. He also asserted he was required
to carry specified liability limits to be a licensed
Oklahoma Home Inspector and he contacted
Insurers’ agent, Brad Cook, to purchase insur-
2127
ance in order to maintain such a license. Brown
averred he understood the purpose of the coverage was to “protect against any harm or
financial hardship that might result to home
buyers as a result of failures, negligence, or
otherwise deficient inspections of houses.”
Brown asserted he also wanted coverage to
protect against lawsuits and legal expenses.
Brown alleged the denial of his claim caused
him to have to hire an attorney to defend
against the lawsuit, which resulted in a jury
verdict against him for negligence. Brown
lastly alleged the adjuster never mentioned nor
paid the supplemental coverage for travel
expenses and loss of earnings promised in the
policy.
¶9 The trial court entered summary judgment in favor of Insurers August 27, 2010. The
court found:
the dispositive issue is whether the . . .
policy . . . provided coverage for damages
resulting from (Brown’s) alleged failure to
properly conduct a home inspection for his
clients. . . . (Brown) did not dispute the
authenticity of the policy by affidavit or
other admissible evidence, but claims in
his brief that the policy was incomplete
and that a products/completed operations
liability coverage form found in (Brown’s)
claim file should be considered a part of
the policy.
The CGL policy, by its terms, covers
“property damage” that is caused by an
“occurrence”. An occurrence is defined by
the policy as an accident. Property damage
is defined by the policy as physical injury to
tangible property. Since (Brown) was never
accused of having an accident that caused
physical injury to his client’s property, it
seems clear enough that the CGL policy did
not provide coverage in this situation.
Even if the CGL policy were interpreted
liberally enough to cover (Brown’s) alleged
tortious conduct, it specifically excludes
property damage resulting from “rendering of or failure to render professional services in the performance of any claim,
investigation, adjustment, engineering,
inspection, appraisal, survey or audit services.” The Court finds that (Brown) was
engaging in professional activity and that
the exclusion is applicable.
¶10 Summary judgment proceedings are
governed by Rule 13, Rules for District Courts,
2128
12 O.S.2001, Ch. 2, App.1. Summary judgment
is appropriate where the record establishes no
substantial controversy of material fact and the
prevailing party is entitled to judgment as a
matter of law. Brown v. Alliance Real Estate
Group, 1999 OK 7, 976 P.2d 1043, 1045. Summary judgment is not proper where reasonable
minds could draw different inferences or conclusions from the undisputed facts. Id. Further,
we must review the evidence in the light most
favorable to the party opposing summary
judgment. Vance v. Fed. Natl. Mortg. Assn., 1999
OK 73, 988 P.2d 1275.
¶11 Brown has asserted four issues on appeal.
Two of the issues have been waived for failure
to preserve a record to support them. First,
Brown claims that Oklahoma has a statutory
requirement that home inspectors maintain
liability insurance and that the exclusion for
professional services in his policy contravenes
the public policy expressed in the statute.
Brown has failed to cite or quote the statute at
issue in the record below or on appeal and we
therefore may not consider whether his policy
violates any public policy expressed in such a
statute. Second, Brown claims that the trial
court granted summary judgment before discovery could be completed; but he has not
presented any record showing that he sought
to compel discovery or to delay summary
judgment pending discovery. Accordingly, we
do not consider these issues on appeal. Instead,
as with all summary judgments, we review
whether the record on appeal shows any dispute of material fact.
¶12 We first consider summary judgment on
the bad faith claim. An insurer has an “impliedin-law duty to act in good faith and deal fairly
with the insured to ensure that the policy benefits are received.” Christian v. American Home
Assurance Co., 1977 OK 141, 577 P.2d 899, 901.
Tort liability for breach of that duty arises
where there is a clear showing that the insurance company unreasonably and in bad faith
withheld payment of the claim of the insured.
Id. The central question in a claim for bad faith
failure to settle or investigate an insurance
claim is: what did the insurance company
know, or what should it have known at the
time the insured requested payment under the
applicable policy, i.e., whether the insurer had
a justifiable, reasonable basis to withhold payment when the insured requested the carrier to
perform its contractual obligation. Newport v.
USAA, 2000 OK 59, 11 P.3d 190, 195; Conti v.
Vol. 82 — No. 24 — 9/17/2011
Republic Underwriters Ins. Co., 1989 OK 128, 782
P.2d 1357, 1362; Buzzard v. McDanel, 1987 OK
28, 736 P.2d 157, 159. Because disagreements
may arise over the amount of coverage, the
cause of loss, and breach of the policy conditions, the duty of good faith and fair dealing
does not preclude the insurer’s right to deny a
claim, resist payment, or litigate any claim to
which the insurer has a legitimate defense. The
reasonableness of any investigation conducted
by the insurer is, thus, oftentimes one of the
main issues in the bad faith tort case. Hall v.
Globe Life and Acc. Ins. Co., 1998 OK CIV APP
161, 968 P.2d 1263, 1265-1266 (cert. denied). The
decisive question is whether the insurer had a
“good faith belief, at the time its performance
was requested, that it had justifiable reason for
withholding payment under the policy.” Buzzard, supra, at 14.
¶13 In this case, the policy attached to AG’s
Motion for Summary Judgment shows that
Insurer had a justifiable reason for withholding
payment. The lawsuit against Brown made
claims for property damage which he did not
discover or report in performing a home inspection as part of a real estate purchase. The policy
excludes coverage for property damage caused
by an occurrence. It also excludes coverage for
expected or intended injury and for property
damage for which an insured may be liable
because of rendering professional services in
the performance of an inspection. Because of
these exclusions, it was reasonable for Insurers
to dispute Brown’s claim for coverage. As a
result, Insurers were entitled to judgment as a
matter of law on the bad faith claim.
¶14 The interpretation of an insurance contract and whether it is ambiguous is a question of law for the court. Haworth v. Jantzen,
2006 OK 35, ¶13, 172 P.3d 193, 196.3 The parties do not dispute that the policy at issue
here includes an endorsement titled “Exclusion-Inspection, Appraisal and Survey Companies” which provides:
This insurance does not apply to “bodily
injury”, “property damage” or “personal
and advertising injury” for which the
insured may be held liable because of the
rendering of or failure to render professional services in the performance of any
claim, investigation, adjustment, engineering, inspection, appraisal, survey or audit
services.
Vol. 82 — No. 24 — 9/17/2011
The policy was issued to Brown d/b/a Continental Inspection Service. Brown filed a claim
for insurance benefits after he was sued for
failing to report defects in a house inspection
he performed as Continental Inspection Service. Brown’s claim sought coverage for liability incurred because of rendering professional
services in performing an inspection. The
unambiguous language of the policy excludes
coverage for Brown’s claim as a matter of law.
Accordingly, the record shows Insurers were
entitled to judgment as a matter of law on
Brown’s breach of contract claim.
¶15 AFFIRMED.
MITCHELL, P.J., and JOPLIN, J., concur.
1. Wathor and Wolf differ from this case in that in those cases, the
insured made bad faith claims against third-party administrators of
public self-insurance groups. In this case, Farm Bureau admittedly
handled claims for AG, but Farm Bureau also was the parent company
of AG.
2. Because of our disposition of AG’s motion for summary judgment, we do not need to address Farm Bureau’s issues.
ORDER
Appellees’ Counsel’s Motion to Publish
Opinion of the Court of Civil Appeals, filed
June 14, 2011, is GRANTED.
DONE BY ORDER OF THE COURT OF
CIVIL APPEALS IN CONFERENCE this 11th
day of July, 2011.
/s/ E. Bay Mitchell, III
Presiding Judge
2011 OK CIV APP 100
PATRICIA BOWERS EDWARDS, Individually and as Natural Mother and Next Friend
of ROBERT DREW BOWERS, an Incapacitated Person, Plaintiff/Appellant, vs. BANCFIRST, a National Banking Association,
Defendant/Appellee, and REX URICE, an
individual; THE ROBERT S. BOWERS AND
ELOISE C. BOWERS FOUNDATION, a private foundation; JOHN C. DUTY, an individual; MICHAEL A. BICKFORD, an individual; PERSONAL NURSING CARE, INC., an
Oklahoma Corporation, Defendants.
Case No. 109,095. June 30, 2011
HONORABLE PATRICIA G. PARRISH,
TRIAL JUDGE
2129
AFFIRMED
Babette Patton, BREATHWIT & PATTON, P.
C., Oklahoma City, Oklahoma, for Plaintiff/
Appellant
James K. Larimore, David B. Donchin, Jennifer
K. Christian, DURBIN, LARIMORE & BIALICK,
Oklahoma City, Oklahoma, for Defendant/
Appellee
KEITH RAPP, JUDGE:
¶1 The plaintiff, Patricia Bowers Edwards
(Edwards), individually and as natural mother
and next friend of Robert Drew Edwards
(Drew), an incapacitated person, appeals a
Trial Court Order granting partial summary
judgment to the defendant, BancFirst (Bank).1
BACKGROUND
¶2 Aspects of this case have been the subject
of several appeals. The facts and history of the
matters are set out in Edwards v. Urice, 2004 OK
CIV APP 86, 99 P.3d 256 and Edwards v. Urice,
Case Number 104,956, Court of Civil Appeals,
July 17, 2008, (unpublished).
¶3 Edwards’ mother, Eloise Cooper Bowers
(Bowers), died in 2001. During her lifetime, she
had established the Eloise Cooper Bowers
Trust (Bowers Trust) with BancFirst, as trustee.
She also established the Bowers Foundation, a
charitable foundation (Foundation). At her
death, the Foundation was to receive Bowers’
remaining assets, valued at approximately
seven million dollars.
¶4 In 2001, Edwards sued to dissolve the
Foundation on ground of undue influence. A
court order stayed distribution to the Foundation. A judgment in her favor was affirmed in
Edwards v. Urice, 2009 OK CIV APP 20, 220 P.3d
1145, and certiorari was denied on December
15, 2008.
¶5 On January 20, 2003, BancFirst filed the
estate tax return, claiming no taxes due. Apparently, as a result of the suit to dissolve the
Foundation, the Internal Revenue Service questioned the seven million dollar deduction for
the assets that were to go to the Foundation
and assessed approximately four million dollars in estate taxes. BancFirst and the Internal
Revenue Service had an agreement that permitted BancFirst to not pay estate tax pending
the outcome of Edwards’ action, however, not
to exceed the limitations period for filing the
tax assessment for taxes due.
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¶6 In June 2007, Bank of Oklahoma was substituted as trustee of the Bowers Trust by order
of the court. As noted, the challenge by Edwards
in the Foundation litigation case became final
on December 15, 2008. However, Bank of Oklahoma did not pay the estate taxes, plus interest
of approximately one million two-hundred
thousand dollars, until February 2009. The case
now under review involves a claim by Edwards
that BancFirst, as trustee, negligently failed to
pay the estate taxes, under a procedure which
would allow a refund if BancFirst prevailed in
the Foundation litigation, but which would
stop the accrual of interest.2
¶7 Edwards’ claim is for approximately
$724,000.00, which recognizes a credit for
appreciation from investment of the unpaid
interest. In addition to its Statute of Limitations
defense, BancFirst maintains that no damages
were suffered because of appreciation and
income from investment.3
¶8 BancFirst gives January 11, 2010, as the
date Edwards first asserted her claim for the
interest in a deposition. Then, BancFirst proposed three dates, all in excess of two years
earlier, on which the Statute of Limitations
began to run.
¶9 The first date was in June 2002, when the
taxes were due and the interest began. A timebar date occurred two years later.
¶10 Next, BancFirst points to a series of letters in October 2004, between Edwards’ attorney and then counsel for the Bowers Trust. In
these letters then counsel for BancFirst demanded that Edwards agree to lift the stay of distribution to the Foundation. The series of letters
discuss the IRS and its position regarding disallowance of the charitable deduction and the
tax assessment deadline. Edwards’ attorney
advised that Edwards would not agree to lifting the stay and that the taxes could be paid
under conditions where a refund could be
obtained if Edwards’ challenge to the validity
of the distribution to the Foundation was
unsuccessful. Thus, BancFirst argues that the
Statute of Limitations began in October 2004,
as an alternate date of beginning.
¶11 BancFirst proposed June 2007, as the
third beginning date. In June 2007, BancFirst
transferred the Bowers Trust to Bank of Oklahoma. According to the argument, Edwards
then possessed all of the information concerning the taxes due, the nonpayment of the taxes
and the accrual of interest.
Vol. 82 — No. 24 — 9/17/2011
¶12 In response, Edwards does not challenge
the chronology of events concerning the transfer to Bank of Oklahoma.4 Her position was
that she did not have standing and her claim
did not accrue until December 15, 2008. On that
date, the lawsuit became final regarding her
challenges to the Bowers Trust amendments
and the Foundation, resulting in her being
adjudicated as a beneficiary of the Bowers
Trust.
¶13 The trial court used the June 2007 date of
transfer of the Bowers Trust from BancFirst to
Bank of Oklahoma as the starting date for
beginning the Statute of Limitations. The trial
court found that Bank of Oklahoma was the
real party in interest as of the date of the transfer and had the standing and information necessary to bring the claim for not paying the
taxes.5 Next, the trial court found that Edwards
did not assert a claim for herself or the Bowers
Trust until her deposition on January 11, 2010.
Therefore, the claim was barred.
¶14 Edwards appeals.
STANDARD OF REVIEW
¶15 Summary judgment is proper only when
it appears that there is no substantial controversy as to any material fact and that one of the
parties is entitled to judgment as a matter of
law. Jordan v. Jordan, 2006 OK 88, ¶ 17, 151 P.3d
117, 121. “Since a summary judgment disposes
solely of issues of law we review it de novo.”
Young v. Macy, 2001 OK 4, ¶ 9, 21 P.3d 44, 47. De
novo means without deference to the trial
court’s legal ruling. Fisher v. Fisher, 2007 OK
CIV APP 103, ¶ 3, 171 P.3d 917, 919. When, as
here with the Statute of Limitations defense,
the defendant relies upon an affirmative
defense then the defendant, as the party with
the burden of proof, must meet the same standards as a plaintiff movant. Akin v. Missouri
Pacific Railroad Co., 1998 OK 102, ¶ 9, 977 P.2d
1040, 1044.
ANALYSIS AND REVIEW
¶16 The summary judgment record shows:
(1) The estate taxes were not paid by BancFirst
when due resulting in an excess of one million
dollars in interest; (2) BancFirst transferred the
Bowers Trust to Bank of Oklahoma in June
2007; (3) Bank of Oklahoma had sufficient
information as a result of the transfer to know
that the taxes had not been paid and that interest was accruing; (4) Bank of Oklahoma was
the real party in interest and had standing to
Vol. 82 — No. 24 — 9/17/2011
assert a claim against BancFirst, but did not do
so; (5) Edwards was finally adjudicated a beneficiary of the Bowers Trust as of December 15,
2008; and (6) Edwards’ first assertion of a claim
was in a deposition on January 11, 2010.6
¶17 The “pure” Statute of Limitations measures the time within which an action must be
brought, and extinguishes the remedy. Cole
v. Silverado Foods, Inc., 2003 OK 81, 78 P.3d
542 n.23.
A statute of limitations extinguishes a remedy for an existing right by penalizing a
party who sleeps on that right.
Lester v. Smith, 2008 OK CIV APP 97, ¶ 7, 198
P.3d 402, 404-05 (citing Neer v. State ex rel., Oklahoma Tax Comm’n, 1999 OK 41, 982 P.2d 1071).
¶18 Edwards maintains that the Statute of
Limitations does not bar her claim for interest
on unpaid taxes because she could not prosecute the claim to a successful conclusion due to
the fact that she did not have standing until
December 15, 2008.7 For purposes of summary
judgment, BancFirst necessarily concedes the
premise that Edwards did not have standing
because it successfully raised that issue. Afterward, Bank of Oklahoma transferred the claim
to Edwards.8 In turn, Edwards necessarily concedes that she did not raise the claim until her
deposition on January 11, 2010.9
¶19 Edwards relies on MBA Commercial
Const., Inc. v. Roy J. Hannaford Co., Inc. 1991 OK
87, 818 P.2d 469, and Marshall v. Fenton, Fenton,
Smith, Reneau and Moon, P.C., 1995 OK 66, 899
P.2d 621. These cases, and others, establish the
“discovery rule” and apply it to the facts of
those cases. In those cases. the Court held that
the two-year limitations period applicable to
negligence actions begins to run from the date
the negligent act occurred or from the date the
plaintiff should have known of the act complained of, but a negligence claim accrues
when any injury to the plaintiff, for which an
action could proceed, is certain and not merely
speculative. The “certainty” requirement refers
to the fact that damages have been sustained
and not to the amount of damages. Marshall,
1995 OK 66 at ¶ 6, 899 P.2d at 623.
The Marshall Court stated:
A cause of action does not accrue until
the litigant first could have maintained his
action to a successful conclusion. In order
to maintain an action for negligence to a
2131
successful conclusion, the litigant must be
able to allege injury or damages.
Marshall, 1995 OK 66 at ¶ 10, 899 P.2d at 624.
¶20 Thus, Edwards’ position becomes straightforward. As all agree, she could not bring the
action until she was finally adjudicated a beneficiary of the Bowers Trust and until the Bowers
Trust transferred or relinquished the claim to
her. Until those events took place, the claim
belonged to Bank of Oklahoma.
¶21 However, Edwards’ case presents a significantly different set of facts than Marshall
and MBA Commercial Const., Inc. In Edwards’
case there is an intervening claimant, Bank of Oklahoma, that could have brought the action. In the
“discovery rule” cases, there was one claim,
one injured party and the Statute of Limitations did not commence immediately because
of the application of the “discovery rule.”
¶22 Here, the facts giving rise to a claim, the
nonpayment of estate taxes, is common to
Edwards and Bank of Oklahoma. The loss in
the form of interest is identical for Edwards
and the Bank of Oklahoma.
¶23 However, the rights of Edwards and
Bank of Oklahoma to prosecute the claim did
not co-exist. Edwards had to have the claim
relinquished to her. Thus, the issue is: Whether
Edwards may disregard the running of the
Statute of Limitations against Bank of Oklahoma on the ground that her “disability” (lack of
standing) suspends the running of the Statute
of Limitations as to her.
¶24 In Aldridge v. Caskey, 1930 OK 355, 291 P.
91, a lawsuit was filed against adverse claimants in possession. The only question presented
on appeal was whether, after the statute had
run in favor of the parties in possession, the
plaintiff, a minor, could maintain the action
after the expiration of fifteen years from the
date the adverse possession commenced. The
Court held, “When the Statute of limitations
has been set in motion during the lifetime of
the ancestor, his death will not suspend it, even
as against minor heirs.” Aldridge, 1930 OK 355
at ¶ 10, 291 P. at 92 [citing Murray v. Houghton,
2 Ind. T. 504, 52 S.W. 48, 49)(Ind. Terr., 1899)].
Here, Bank of Oklahoma is analogous to the
ancestor and Edwards’ lack of standing is
analogous to the heirs’ minority.
¶25 In Green v. Wahl, 1925 OK 1021, 246 P.
419, Green, as transferee, based his claim under
2132
a conveyance from a person whose right of
recovery was barred at the time of the execution of the deed to Green. Therefore, the Court
sustained the plea of limitation against Green’s
right of recovery. See Long v. City of Tulsa, 1947
OK 153, 184 P.2d 800 (finding no merit in the
argument, that the city could not rely upon the
Statute of Limitations against plaintiff, a subsequent purchaser of the property). The point of
these cases is that the Statute of Limitations
was running against Bank of Oklahoma, and
appears to have done so by the time it relinquished the claim to Edwards.10
¶26 Moreover, Edwards received from Bank
of Oklahoma no greater rights than Bank of
Oklahoma had to transfer. An assignee of a
chose in action takes it subject to existing
claims and equities and acquires no greater
interest therein than the assignor had at the
time of his assignment. Sarkeys v. Marlow, 1951
OK 195, ¶¶ 17-18, 235 P.2d 676, 679.
CONCLUSION
¶27 The trial court did not err by its ruling
that Edwards’ claim against Bank for the interest that accrued on unpaid Federal estate taxes
was barred by the Statute of Limitations. Even
though she could not bring the action until
Bank of Oklahoma relinquished the claim to
her, the two-year time period began when
Bank of Oklahoma became Trustee of the Bowers Trust. If Edwards’ position were sustained
then the result would be to add the period of
limitations applicable to Edwards to that applicable to Bank of Oklahoma. “If one limitation
can be added to another without limit, it would
create an intolerable rule and promote a never
ending right of action.” Aldridge, 1930 OK 355
at ¶ 25, 291 P. at 83. Therefore, the judgment is
affirmed.
¶28 AFFIRMED.
GOODMAN, P.J., and BARNES, J. (sitting by
designation), concur.
1. This is a final order disposing of the last claim in a multiparty,
multiclaim action. All other claims as to all other parties have been
resolved.
2. BancFirst originally argued that Edwards did not have standing
to assert the claim because Bank of Oklahoma was the trustee. The trial
court agreed, but also ruled that Edwards could bring the action if
Bank of Oklahoma relinquished its claim to Edwards, which it did.
BancFirst has not appealed that ruling. See n.7.
3. Record, Tab 4.
4. Edwards and BancFirst are in disagreement about the amount of
money allegedly earned on the money that represented the unpaid
taxes. However, summary judgment did not involve this issue.
5. This finding has not been challenged by summary judgment
evidentiary materials.
Vol. 82 — No. 24 — 9/17/2011
6. Edwards’ summary judgment response did not present evidentiary materials to put items (3) and (6) of this paragraph in controversy.
Edwards admitted that she asserted a claim in her January 11, 2010
deposition, but stated that BancFirst made no objection at that time to
that element of damages. Record, Tab 3. The other items are not controverted by either party.
7. It does not appear that Edwards argued for “tolling” of the Statute of Limitations.
“Tolling” is a term of art which refers to the temporary suspension of statutory time bar for bringing a suit because of either
some “disability” on the part of the plaintiff which prevents that
person from commencing the action or some activity on the part
of the defendant forestalling prosecution of the claim against the
defendant. BLACK’S LAW DICTIONARY (5th ed.1979) at 1334
defines the word “toll” in the following manner: “To suspend or
stop temporarily as the statute of limitations is tolled during the
defendant’s absence from the jurisdiction and during the plaintiff’s minority.
Thompson v. Anchor Glass Container Corp., 2003 OK 39, 73 P.3d 836 n.13.
This Court notes that, under Edwards’ position, there is no suspension of the Statute of Limitations. Thus, Edwards’ argument is understood to be that the Statute of Limitations did not start until she was
finally adjudicated as a Bowers Trust beneficiary in December 2008.
8. The transfer, or relinquishment, requirement arose as a result of
the ruling on BancFirst’s Fourth Motion For Partial Summary Judgment on June 10, 2010. See Record, Tab 5, p. 2; and, June 21, 2010,
Journal Entry Minute, District Court Docket Sheet. Record, Tab 6. The
parties have no dispute about this occurrence or that the claim was
relinquished. However, the document relinquishing or transferring the
claim to Edwards has not been identified in the Record by either party.
The relinquishment is documented in the District Court Docket Sheet
entry of June 10, 2010. Record, Tab 6. The Record does not show why
the relinquishment did not occur at any earlier time beginning with the
date the Bowers Trust was transferred to Bank of Oklahoma.
9. Edwards’ summary judgment materials do not provide any
basis to conclude that a question of fact exists on this point.
10. The “tacking of possession” for purposes of adverse possession
provides an analogy by “tacking” the time period where Bank of Oklahoma was the claimant to the time period when Edwards subsequently
became the claimant. Continuous and uninterrupted possession of disputed property, as required for adverse possession, could be achieved
by tacking possession of predecessors to succeeding adverse occupants.
Cloer Land Co. v. Wright, 1993 OK CIV APP 56, 858 P.2d 110.
2011 OK CIV APP 98
ANTONIO A. BRYSON, Plaintiff/Appellant,
vs. OKLAHOMA COUNTY ex rel.
OKLAHOMA COUNTY DETENTION
CENTER, Defendant/Appellee.
Case No. 108,534. June 30, 2011
HONORABLE BRYAN C. DIXON,
TRIAL JUDGE
AND REMANDED FOR FURTHER
PROCEEDINGS
Kenyatta R. Bethea, HOLLOWAY BETHEA &
OSENBAUGH, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant
David Prater, DISTRICT ATTORNEY, Sandra
Howell-Elliot, ASSISTANT DISTRICT ATTORNEY, Oklahoma City, Oklahoma, for Defendant/Appellee
Vol. 82 — No. 24 — 9/17/2011
¶1 Antonio A. Bryson appeals the judgment
of the district court granting defendant Oklahoma County’s motion for summary judgment. The appeal has been assigned to the
accelerated docket pursuant to Oklahoma
Supreme Court Rule 1.36(b), 12 O.S. Supp.
2010, ch. 15, app. 1, and the matter stands submitted without appellate briefing. We affirm
the district court’s order granting the County’s
motion for summary judgment with respect to
Bryson’s tort claims for assault, battery and
negligence, Bryson’s constitutional claims
based on Okla. Const. art. 2, § 9 and the Eighth
Amendment to the United States Constitution,
and Bryson’s claim based on the use of force
policy and failure to train. We reverse with
respect to Bryson’s 42 U.S.C. § 1983 claim
based on the Fourth Amendment to the United
States Constitution and his claim for violation
of Okla. Const. art. 2, § 30, and remand for further proceedings.
BACKGROUND
¶2 Bryson was arrested on April 1, 2007, and
taken to the Oklahoma County jail. During
processing Bryson was verbally abusive to officers and refused to take a TB exam. In order to
search Bryson, Scott Miller, a detention officer
employed by the Oklahoma County Sheriff’s
Office, was asked to take Bryson to a changing
area and “dress him out” in County jail clothing. When they returned to the processing area,
Miller handcuffed Bryson to a bench. Bryson
continued his verbal abuse of officers and was
inciting other prisoners in the area. Bryson also
asked Miller why he was verbally abusing
prisoners during this time. Miller decided to
move Bryson to a holding cell to keep him
from agitating other inmates in the book-in
area. Miller took Bryson’s handcuffs off and
ordered him to stand. Bryson refused. After
waiting only a few seconds, Miller grabbed
Bryson, stood him up, shoved him into a wall
and eventually took him to the floor. Miller
ordered Bryson to turn onto his stomach and
when Bryson refused, Miller delivered two
“knee strikes” to Bryson’s back. Bryson turned
onto his stomach, was handcuffed and removed
from the area. As a result of this incident, the
Sheriff’s Office conducted an investigation and
terminated Miller.
¶3 Bryson’s action is based on this altercation
with Miller and asserts various tort and constitutional claims. He seeks recovery for actual
damages in excess of ten thousand ($10,000)
dollars and punitive damages. Except for the
2133
County, all defendants including Miller have
been voluntarily dismissed by Bryson.
¶4 The County’s motion for summary judgment argues that Miller was acting outside the
scope of his employment, and, therefore, the
County cannot be held liable for his actions.
The County contends that even if Miller were
acting within the scope of his employment, it
cannot be held liable on the basis of respondeat
superior for two reasons: more than vicarious
liability is required to show a violation of 42
U.S.C. § 1983, and as to any State claims, the
Governmental Tort Claims Act provides the
County immunity from Bryson’s suit. In addition, the County contends that Bryson can
establish no independent policy, procedure, act
or custom by the County that resulted in any
constitutional violation, and that the Eighth
Amendment does not apply to Bryson. Finally,
the County argues that the Sheriff’s use of force
policy is constitutional, that Miller was properly trained and supervised by the Sheriff’s
Office, and that pursuant to Oklahoma law the
County is not responsible for the operation of
the County jail or the supervision of detention
officers employed by the Sheriff’s Office.
Bryson’s response admits most of the material
facts asserted in the County’s motion. However, Bryson disputes the fact that Miller was acting outside the scope of his employment, and
that he was properly trained and supervised.
Bryson’s response also asserts as an undisputed
material fact that the County jail was overcrowded and understaffed. The County did not
reply to Bryson’s response. The Order sustaining
the County’s motion was filed June 24, 2010.
STANDARD OF REVIEW
¶5 Rule 13 of the Rules for District Courts of
Oklahoma, 12 O.S. Supp. 2010, ch. 2, app., governs the procedure for summary judgment in
the district court. We review the district court’s
grant of summary judgment de novo. Carmichael
v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.
On review, we examine the pleadings and evidentiary materials submitted by the parties to
determine whether there exists a genuine issue
of material fact. Id. This Court bears “an affirmative duty to test all evidentiary material
tendered in summary process for its legal sufficiency to support the relief sought by the
movant.” Copeland v. The Lodge Enters., Inc.,
2000 OK 36, ¶ 8, 4 P.3d 695, 699.
¶6 The summary process requires that we
determine whether the record reveals only
2134
undisputed material facts supporting a single
inference that favors the movant’s motion for
summary judgment. Id. When considering a
motion for summary judgment, the evidence
and the inferences to be drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Hargrave
v. Canadian Valley Elec. Coop., Inc., 1990 OK 43,
¶ 14, 792 P.2d 50, 55. If the moving party has
not addressed all material facts, or if one or
more of such facts is not supported by acceptable evidentiary material, summary judgment
is not proper. Spirgis v. Circle K Stores, Inc., 1987
OK CIV APP 45, ¶ 10, 743 P.2d 682, 685
(approved for publication by the Oklahoma
Supreme Court). “Once defendant has introduced evidentiary materials indicating that
there is no substantial controversy as to one
fact material to plaintiff’s cause of action and
that this fact is in defendant’s favor, plaintiff
then has the burden of showing that evidence
is available which would justify a trial of the
issue.” Runyon v. Reid, 1973 OK 25, ¶ 13, 510
P.2d 943, 946. “Only if the court should conclude that there is no material fact in dispute
and the law favors the movant’s claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.” Copeland, 2000 OK 36, ¶ 8, 4 P.3d at 699.
ANALYSIS
¶7 Bryson’s petition asserts six theories of
recovery: (I) Assault, (II) Battery, (III) Violation
of 42 U.S.C. § 1983, (IV) Violation of article 2,
§ 9 of the Oklahoma Constitution and the
Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment, (V) Failure to train/supervise/control
and (VI) Negligence.1
I. Assault, Battery and Negligence
¶8 The first two theories of recovery in
Bryson’s petition assert that Miller committed
an assault and battery when removing Bryson
to the holding cell. “[E]very person has, subject
to the qualifications and restrictions provided
by law, the right of protection from bodily
restraint or harm . . . .” 76 O.S.2001 § 6. Assault
and battery require proof of harmful contact by
the defendant or the apprehension of harmful
contact. OUJI Nos. 19.1 and 19.6. See 12 O.S.2001
§ 577.2 (calling for the use of Oklahoma Uniform
Jury Instructions when applicable). “Contact” is
the intentional touching of another person. OUJI
No. 19.7; see 12 O.S.2001 § 577.2. There are no
allegations in the petition that would provide a
Vol. 82 — No. 24 — 9/17/2011
basis for concluding that anyone other than
Miller participated in the alleged assault and
battery. Therefore, based on the summary judgment record and taking the allegations of the
petition as true,2 Miller is the only defendant
who could have committed an assault or battery and he has been dismissed.
¶9 Likewise, Bryson’s negligence claim is
also based on Miller’s intentional conduct,
alleged in the alternative to be negligent. In his
petition, this claim is specifically asserted
against the Oklahoma County Sheriff’s Office,
Scott Miller, Cliff Uranga, Scott Sedbrook,
Renee Tiner, Bobby Carson and John Whetsel
based on “the legal theory of respondeat superior.” Although all of these defendants have been
dismissed, Bryson’s petition asserts a general
claim for damages in support of his negligence
claim against “the Defendants.” We will assume
for the purposes of the County’s motion that
Bryson contends that the County is liable for
Miller’s alleged negligence based on respondeat
superior.
¶10 Whether the County is responsible for
any assault, battery or negligent conduct by
Miller is dependent on whether Miller was acting within the scope of his employment: “Any
act or omission of an officer or employee while
acting within the scope of [his/her] [employment/authority] is the act or omission of [the
employer]. OUJI 7.7; see 12 O.S.2001 § 577.2. The
County argues that it is not liable because Miller
acted outside the scope of his employment.
As a general rule, it is not within the scope
of an employee’s employment to commit
an assault upon a third person . . . . However, this general rule does not apply when
the act is one which is ‘fairly and naturally
incident to the business,’ and is done ‘while
the servant was engaged upon the master’s
business and be done, although mistakenly
or ill advisedly, with a view to further the
master’s interest, or from some impulse of
emotion which naturally grew out of or
was incident to the attempt to perform the
master’s business.’ . . . An employee’s act is
within the scope of employment if it is incident to some service being performed for
the employer or arises out of an emotional
response to actions being taken for the
employer . . . . In such an instance, an
employer can be held liable even if the
employee acts beyond the given authority.
Vol. 82 — No. 24 — 9/17/2011
Rodebush by and through Rodebush v. Oklahoma
Nursing Homes, Ltd., 1993 OK 160, ¶ 12, 867
P.2d 1241, 1245 (citations omitted). “Scope of
employment” is defined in the Oklahoma Governmental Tort Claims Act (GTCA) as:
performance by an employee acting in
good faith within the duties of the employee’s office or employment or of tasks lawfully assigned by a competent authority
including the operation or use of an agency
vehicle or equipment with actual or implied
consent of the supervisor of the employee,
but shall not include corruption or fraud.
51 O.S. Supp. 2010 § 152(12).
¶11 Generally, the determination of whether
an employee was acting within the scope of
employment is a question of fact “except in
cases where only one reasonable conclusion
can be drawn from the facts.” Nail v. City of
Henryetta, 1996 OK 12, ¶ 13, 911 P.2d 914, 918.
The only fact in this record that speaks to the
scope of Miller’s employment is fact number
15 offered in support of the County’s motion.
County asserts that Miller acted maliciously in
dealing with Bryson and is based on Bryson’s
testimony that he believed Miller acted maliciously. Bryson contests this fact relying on
Miller’s testimony that, despite the verbal
abuse, the incident would not have happened
if Bryson had stood up when directed, that
Miller did not intend to injure Bryson, and that
Miller believed his actions were within the
scope of his employment. This evidence supports more than one reasonable conclusion.
Therefore, we cannot conclude as a matter of
law that Miller was acting outside the scope of
his employment when the incident occurred.
As a result, summary judgment as to Bryson’s
first three theories of recovery is not proper
unless the County can establish some “liabilitydefeating defense.” Reeds v. Walker, 2006 OK 43,
¶ 9, 157 P.3d 100, 106.
¶12 The County argues that it is not liable for
Miller’s actions because it has no legal responsibility for “running the jail or hiring or supervising jail employees,” and because it “cannot
be affirmatively linked to the alleged violations.” The County relies on Meade v. Grubbs,
841 F2d 1512(10th Cir. 1988), for the proposition that Oklahoma counties do not have statutory authority over county jails. In Meade, the
United States Court of Appeals for the Tenth
Circuit affirmed the dismissal of a complaint
by a pretrial detainee against the Commission-
2135
ers of Oklahoma County based on the alleged
use of excessive force during the booking process at the Oklahoma County jail. Citing two
Oklahoma Attorney General Opinions,3 the
federal appellate court held that the Commissioners could not be liable for a deputy’s
alleged use of excessive force in an action filed
pursuant to 42 U.S.C. § 1983 because they had
“no statutory duty to hire, train, supervise or
discipline the county sheriffs or their deputies.” Meade, 841 F.2d at 1528. The court cited
two statutes in support of this conclusion: 19
O.S. Supp. 2010 § 513 (“The sheriff shall have
the charge and custody of the county jail and
all prisoners therein, and shall keep such jail
himself, or by his deputy or jailer”) and 19 O.S.
Supp. 2010 § 547 (“The sheriff may appoint and
revoke the appointment of deputy sheriffs and
detention officers”). Although the County does
not assert the source of Miller’s employment as
a material fact, it is apparent from the record
that Miller was employed by the Oklahoma
County Sheriff’s Office. Therefore, because the
County was not Miller’s employer it cannot be
held vicariously liable for his alleged torts.
“Respondeat superior is a legal doctrine holding
an employer liable for the willful torts of an
employee acting within the scope of employment in furtherance of assigned duties.” N.H.
v. Presbyterian Church (U.S.A.), 1999 OK 88,
¶ 13, 998 P.2d 592, 598 (emphasis added); Jordan v. Cates, 1997 OK 9, ¶ 9, 935 P.2d 289, 292 (to
impose liability on the basis of respondeat superior, “the relationship of master and servant
must exist”). That portion of the district court’s
order granting judgment to the County based
on Bryson’s assault, battery and negligence
theories of recovery is affirmed.4
II. Excessive Force
¶13 Bryson’s excessive force theory of recovery relies on state and federal constitutional
prohibitions against cruel and unusual punishment: Okla. Const. art. 2, § 9, and the Eighth
Amendment to the United States Constitution.
These provisions are identical: “Excessive bail
shall not be required, nor excessive fines
imposed, nor cruel or unusual punishments
inflicted.” The standard for determining whether a prisoner has stated a claim pursuant to
state law against a governmental entity for use
of excessive force is discussed in Washington v.
Barry, 2002 OK 45, 55 P.3d 1036. The facts in
Washington are similar to those in this case.
Washington was incarcerated in the State penitentiary at McAlester and objected to having a
2136
new cellmate. He was handcuffed and placed
in leg irons for security reasons. When prison
staff tried to remove the restraints, he resisted.
The staff waited thirty-six hours before trying
to remove the restraints again, videotaped the
incident and had a nurse present during the
incident. Washington received only minor injuries. The Washington majority, although acknowledging that incarcerated persons have a
constitutional right to be free from cruel and
unusual punishment, found that the constitutional requirement to show wanton infliction
of pain had not been met and affirmed dismissal of the petition for failure to state a cause
of action.
¶14 The differentiating factor between Washington and this case is that Bryson was not
incarcerated at the time of the altercation with
Miller. He had been arrested and was in the
process of being booked into jail, but he had
not yet been convicted of the crime for which
he was arrested nor was he being held for trial.
The constitutional prohibitions on cruel and
unusual punishment apply only to those convicted of a crime. Whitley v. Albers, 475 U.S. 312,
106 S. Ct. 1078 (1986); Ingraham v. Wright, 430
U.S. 651, 671 n.40, 97 S. Ct. 1401, 1412 n.40
(1977); Washington v. Barry, 2002 OK 45, ¶¶ 910, 55 P.3d at 1039. Therefore, the district court
correctly granted the County’s motion for summary judgment with respect to Bryson’s claim
of cruel and unusual punishment based on a
violation of Okla. Const. art. 2, § 9 or the Eighth
Amendment. That portion of the order is
affirmed.
III. 42 U.S.C. § 1983
¶15 Bryson’s third theory of recovery is
based on an alleged violation of his constitutional rights that he invokes pursuant to 42
U.S.C. § 1983. That statute provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to
be subjected, any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for
redress . . . .
The basic factual predicate for this theory of
recovery is the same assault and battery Miller
is alleged to have committed. However, the
claim takes two forms: (1) the degree of force
Vol. 82 — No. 24 — 9/17/2011
used by Miller was unreasonable, and (2) the
failure to properly train and supervise Miller,
and properly staff the jail caused Bryson’s injuries. As relevant to the County’s motion, three
requirements of section 1983 are pertinent: (1) a
person, (2) acting under color of state law, and
(3) a violation of federal constitutional rights.
A. The Person Requirement
¶16 Miller is a “person” for purposes of section 1983 as is the County. See Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658, 98 S.
Ct. 2018 (1978) (local governing bodies can be
sued directly under section 1983 for monetary,
declaratory, or injunctive relief). However, the
County cannot be held liable for violating section 1983 on the basis of respondeat superior.
“Congress did not intend [governmental entities] to be held liable unless action pursuant to
official [governmental] policy of some nature
caused a constitutional tort.” Id. at 691, 98 S. Ct.
at 2036. Therefore, Bryson’s section 1983 claim
against the County must be predicated on conduct that “implements or executes a policy
statement, ordinance, regulation, or decision
officially adopted and promulgated by that
body’s officers,” or a “governmental custom”
that results in a deprivation of constitutional
rights. Id. at 690-91, 98 S. Ct. at 2035-36.
B. Under Color of Law
¶17 Although the County argues that Miller
was acting outside the scope of his authority,
Bryson disputes this fact. As previously stated,
for purposes of the County’s motion, it will be
assumed that Miller was acting within the
scope of his employment at the time of the
altercation with Bryson. The arrest and detention of Bryson pursuant to Oklahoma law satisfies this requirement. See Lusby v. T.G. & Y.
Stores, Inc., 749 F.2d 1423 (10th Cir. 1984) (vacated on other grounds sub nom. City of Lawton v.
Lusby, 474 U.S. 805, 106 S. Ct. 40 (1985)). Certainly, the County was acting pursuant to State
law in providing the facility in which Bryson
was being detained after his arrest. “Every
county, by authority of the board of county
commissioners and at the expense of the county, shall have a jail or access to a jail in another
county for the safekeeping of prisoners lawfully committed.” 57 O.S.2001 § 41.
C. Deprivation of Federal
Constitutional Rights
¶18 Bryson’s summary judgment response
relied on the United States Supreme Court’s
Vol. 82 — No. 24 — 9/17/2011
decision in Whitley v. Albers, 475 U.S. 312, 106 S.
Ct. 1078 (1986). However, Whitley concerned
the Eighth Amendment claim of an incarcerated prisoner shot during a prison riot. With
respect to pretrial detainees like Bryson, the
Fourth Amendment to the United States Constitution provides the appropriate constitutional basis for analyzing Bryson’s section 1983
claim.
Where, as here, the excessive force claim
arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the
protections of the Fourth Amendment,
which guarantees citizens the right ‘to be
secure in their persons . . . against unreasonable . . . seizures’ of the person.
Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct.
1865, 1871 (1989) (all claims that law enforcement officers have used excessive force in the
course of an arrest should be analyzed under
the Fourth Amendment).5
¶19 Not only does Graham establish the
Fourth Amendment as the constitutional source
of the protection afforded pretrial detainees,
but also it provides the test for determining
when the use of force is excessive.
Determining whether the force used to
effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a
careful balancing of ‘the nature and quality
of the intrusion on the individual’s Fourth
Amendment interests’ against the countervailing governmental interests at stake.
....
As in other Fourth Amendment contexts,
however, the ‘reasonableness’ inquiry in an
excessive force case is an objective one: the
question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts
and circumstances confronting them, without regard to their underlying intent or
motivation. An officer’s evil intentions will
not make a Fourth Amendment violation
out of an objectively reasonable use of
force; nor will an officer’s good intentions
make an objectively unreasonable use of
force constitutional.
Id. at 396-97, 109 S. Ct. at 1871-72. Despite
Miller’s termination as a result of the Sheriff’s
Department’s conclusion that Miller’s use of
force was contrary to Department policy, and
2137
the County’s contention that Miller’s use of
force was excessive, that fact has not been judicially determined.6 However, even assuming
that the use of force here violated Bryson’s
Fourth Amendment rights, he still must show
that violation resulted from some County policy or custom. See Monell v. Dep’t of Soc. Servs. of
City of New York, 436 U.S. 658, 694, 98 S. Ct.
2018, 2037-38 (1978).
¶20 Those in charge of prisons have a duty
imposed by the Eighth Amendment to the
United States Constitution “to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833, 114 S.
Ct. 1970, 1976 (1994). Just as that duty extends
to protection from known or “sufficiently serious” threats, Wilson v. Seiter, 501 U.S. 294, 298,
111 S. Ct. 2321, 2324 (1991), that duty also
directly impacts the level of prison staff necessary to provide the constitutionally required
protection. “Having incarcerated ‘persons
[with] demonstrated proclivit[ies] for antisocial criminal, and often violent, conduct,’ having stripped them of virtually every means of
self-protection and foreclosed their access to
outside aid, the government and its officials
are not free to let the state of nature take its
course.” Farmer, 511 U.S. at 833, 114 S. Ct. at
1977 (quoting Hudson v. Palmer, 468 U.S. 517,
526, 104 S. Ct. 3194, 3200) (alteration in original). The Fourth Amendment protection afforded pretrial detainees is at least as demanding
as the “less protective Eighth Amendment
standard.” Graham, 490 U.S. at 398, 109 S. Ct. at
1873. “[P]laintiffs who are not prisoners have
significantly broader rights arising from the
application of force by police officers making
arrests than do those who are incarcerated.”
Washington v. Barry, 2002 OK 45, ¶ 9, 55 P.3d
1036, 1039 (citing Graham v. Connor, 490 U.S.
386, 109 S. Ct. 1865).
¶21 The focus of Bryson’s argument concerning the County’s policies and customs in the
summary judgment proceedings is on the staffing at the County jail and the institutional support, or lack thereof, provided to Miller. The
County asserts that the Sheriff is the person
responsible for the use of force policy at the
County jail, and that a “show of force is the
first option in the use of force continuum.” This
point appears to relate to the fact that there is
nothing in the record to show that Miller called
for assistance from other officers before the
altercation with Bryson occurred. In addition,
Bryson asserts as an undisputed material fact
2138
that the County “overcrowded and understaffed the jail.”7 Bryson relies on Miller’s
deposition testimony to the effect that when
Miller first went to work at the jail it was difficult to find applicants for detention officer
positions, that those responsible for staffing
misjudged where the officers who were
employed should be assigned, and that even
though there were more arrests and bookings
at night, 115 versus 20 on occasion, there were
more officers working the day shift than at
night. Miller further testified that his platoon
was shorthanded every night, and the receiving area was understaffed the night Bryson
was brought to the jail.
¶22 The County argues it is entitled to summary judgment because Bryson “provides no
evidence that the County undertook any
responsibilities with regard to running the jail
or hiring or supervising jail employees . . . [or]
was involved in creating the jail’s policies or
customs.” The County’s argument fails for
three reasons.
¶23 First, that is not the applicable standard
for summary judgment motions. “[I]f the movant has not addressed all material facts,” then
summary judgment is not proper. Spirgis v.
Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10,
743 P.2d 682, 685 (approved for publication by
the Oklahoma Supreme Court).
¶24 Second, the County does not defeat its
potential liability by showing that the County
Sheriff “is the official policy-maker” at the
County jail. Section 1983 extends liability to the
County where the “decisionmaker possesses
final authority to establish [county] policy with
respect to the action ordered.” Pembaur v. City
of Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292,
1299 (1986). However, merely showing that
harm resulted from a policy-maker’s act is
insufficient. See Bd. of County Comm’rs of Bryan
County, Oklahoma v. Brown, 520 U.S. 397, 117 S.
Ct. 1382 (1997) (holding that evidence establishing the sheriff hired a deputy before conducting adequate screening failed to show that
the sheriff’s act was the “moving force” resulting in the subsequent use of excessive force by
the deputy). The Court in Brown reversed a
judgment against the county in favor of a pretrial detainee, even though it was stipulated
that the sheriff was the county’s final policymaker with regard to this action, because it
found no official policy resulting in the use of
excessive force. See id. Based on the record in
this case, Bryson has established disputed
Vol. 82 — No. 24 — 9/17/2011
material facts with respect to the adequacy of
staffing at the jail and the assignment of available staff, and a connection between those disputed facts and the alleged violation of his
constitutional rights. However, we agree with
the County that Bryson has failed to show any
constitutional defect in the use of force policy
adopted by the sheriff or the training provided
to Miller. With respect to these aspects of
Bryson’s claim, the district court properly
granted summary judgment and that part of
the district court’s order is affirmed.
¶25 Third, the County’s position that it is not
responsible for the jail is not supported by law.
The County is not required to provide its own
jail. “A county may enter into contracts with
private prison contractors to provide and operate jail facilities for the county.” 57 O.S.2001 §
41. However, having done so in this case, the
County must discharge its responsibilities to
the jail in a constitutional manner. Even though
the “sheriff shall have charge of the jail,” 19
O.S.2001 § 513, the County shall provide for a
jail, “at the expense of the county . . . for the
safekeeping of prisoners lawfully committed.” 57 O.S.2001 § 41. The County’s duty to
provide for the jail is constitutional as well as
statutory.
[I]t is conceded by all that certain necessary
fundamental functions must always be
actively exercised in order to preserve the
existence of the state and secure to the
people the rights guaranteed to them,
among which are the right to life, liberty,
the possession of property, and the pursuit
of happiness, and should the state become
so impotent as to be unable to discharge
these functions, there would result a failure
of the purposes for which government was
established. The surest way to bring about
this result is to construe the Constitution in
such a way as to place it in the power of
one set of officials to deprive another of the
means necessary for the performance of the
duties imposed upon that other. If we give
the Constitution such construction the
enforcement of laws for the regulation and
protection of the public peace and safety in
any county might, in its ultimate analysis,
depend upon the whim and caprice of certain local officials who might, by failing
and refusing to make proper provision
therefor [sic], render it impossible to secure
an enforcement of such laws by the officers
charged with the duty of so doing.
Vol. 82 — No. 24 — 9/17/2011
Smartt v. Bd. of County Comm’rs of Craig County,
1917 OK 590, ¶ 6, 169 P. 1101, 1102 (holding that
a sheriff’s lawful expenditure of money to feed
prisoners in the discharge of duties imposed
upon the sheriff by the Constitution and state
laws constitutes a valid charge against the
county). See also 2007 OK AG 35, ¶ 20. Finally,
the County must pay the expenses of its constitutional obligations before it pays for other
services.
We must conclude that the income and revenue of a county, including revenue derived
from the maximum legislative limitation
upon the rate of ad valorem taxation, must
be appropriated and used for the defrayment of the cost of the constitutional governmental functions of the county in so far
as it is necessary for that purpose, and that
until an appropriation has been made for
that purpose, no appropriation can be
made for legislative governmental functions or for other expenditures of public
funds . . . .
Protest of Kansas City Southern Ry. Co., 1932 OK
328, ¶ 28, 11 P.2d 500, 509. Just as the County
“has a federal constitutional and state statutory
duty to provide medical treatment for inmates
in custody,” HCA Health Servs. of Oklahoma, Inc.
v.Whetsel, 2007 OK 101, ¶ 10, 173 P.3d 1203,
1206, we find that constitutional duty extends
to the fundamental level of protection necessary “for the safekeeping of prisoners lawfully
committed.” 57 O.S.2001 § 41. See Farmer v.
Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979
(deliberate indifference exists where officials
know of and disregard “an excessive risk to
inmate health or safety”).
¶26 Miller testified that in his opinion the
night shift was consistently understaffed. He
also testified that adequate staffing of the jail is
not only necessary to protect jail personnel, but
also necessary to protect prisoners from unlawful assault. The County’s summary judgment
motion provides no facts from which to conclude one way or the other whether Miller’s
assessment of the staffing at the County jail is
correct. Therefore, for summary judgment purposes we assume that the jail was inadequately
staffed at the time of the Bryson/Miller incident. Construing the facts in this case in the
light most favorable to Bryson, see Carmichael v.
Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053, it is
reasonable to infer that Miller was unable to
first use a “show of force” because other officers were not available, and that other officers
2139
were not available because the jail was understaffed. The County has failed to eliminate the
inference that other officers were unavailable
because of some formal County policy or informal County custom and therefore has not met
the burden required for summary judgment.
See Spirgis, 1987 OK CIV APP 45, ¶ 10, 743 P.2d
at 68. Either circumstance, if proven, would
provide the “affirmative link” to the alleged
violation of Bryson’s constitutional right
required by section 1983.8 See City of Oklahoma
City v. Tuttle, 471 U.S. 808, 817-24, 105 S. Ct.
2427, 2433-36 (1985) (plurality opinion). Even
the determination to staff the night shift at a
particular level, if shown to be the “moving
force” resulting in a violation of Bryson’s constitutional rights, would be sufficient to impose
liability on the County, assuming the sheriff
made that decision and that the sheriff was the
final County policy-maker with respect to that
decision. See Pembaur v. City of Cincinnati, 475
U.S. 469, 106 S. Ct. 1292; Bd. of County Comm’rs
of Bryan County, Oklahoma v. Brown, 520 U.S.
397, 117 S. Ct. 1382. For summary judgment
purposes, Bryson is entitled to that inference.
¶27 Although Bryson’s injuries, if proven, do
not appear to be severe, it is not necessary that
a “tragic result” occur before constitutional
liability is imposed. Helling v. McKinney, 509
U.S. 25, 33-34, 113 S. Ct. 2475, 2481 (1993). The
failure to provide “for the safekeeping of prisoners lawfully committed” in the County jail
exposes detention officers and prisoners to the
risk of harm and may provide the deliberate
indifference required to show a violation of the
Fourth Amendment. See Pembaur, 475 U.S. at
483, 106 S. Ct. at 1300 (holding that municipal
liability under section 1983 attaches where an
official who is responsible for establishing final
policy makes a deliberate choice to follow a
course of action from among various alternatives). However:
[A] prison official cannot be found liable
under the [Fourth] Amendment for denying an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate
health or safety; the official must both be
aware of facts from which the inference
could be drawn that a substantial risk of
serious harm exists, and he must also draw
the inference.
Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct.
1970, 1979. The County’s summary judgment
motion does not address this issue. Therefore,
2140
Bryson’s Fourth Amendment claim with respect
to the adequacy of staffing at the County jail
cannot be resolved by summary proceedings
on the basis of this record.
IV. State Constitutional Claim
¶28 As he did with respect to his federal constitutional claim, Bryson confuses the source of
his state constitutional protection. The Oklahoma counterpart to the Fourth Amendment is
found in Okla. Const. art. 2, § 30: “The right of
the people to be secure in their persons, houses,
papers, and effects against unreasonable
searches or seizures shall not be violated . . . .”
Section 30, not section 9, of article 2 is the provision applicable to arrestees and pretrial
detainees like Bryson. Although Washington v.
Barry, 2002 OK 45, 55 P.3d 1036, addresses the
showing those convicted of crimes must make
to state a claim for violation of article 2, § 9 of
the Oklahoma Constitution, that opinion establishes the legal principles necessary to determine the test for analyzing claims of excessive
force by arrestees and pretrial detainees pursuant to article 2, § 30. “We first observe that our
analysis [of excessive force claims by those
convicted of crimes] must differ significantly
from the analysis we have applied in determining what was ‘excessive force’ in cases involving police officers making arrests . . . .” Washington, 2002 OK 45, ¶ 9, 55 P.3d at 1038 (citing Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, for
the proposition that “plaintiffs who are not prisoners have significantly broader rights arising
from the application of force by police officers
making arrests than do those who are incarcerated”). We therefore adopt the “reasonableness
test” discussed in Washington and Graham for
analyzing Bryson’s claim that Miller’s use of
force in this instance was “excessive.”
¶29 Although we were not required to determine the scope of the County’s immunity from
liability pursuant to the GTCA, 51 O.S. Supp.
2010 §§ 151 to 200, with respect to Bryson’s tort
claims, we consider that potential defense with
respect to Bryson’s state constitutional claim.
The County argues that pursuant to the GTCA
it is immune from suit by Bryson for the conduct of Miller. Except to the extent sovereign
immunity is specifically waived, “[t]he state,
its political subdivisions, and all of their
employees acting within the scope of their
employment, whether performing governmental or proprietary functions, shall be immune
from liability for torts.” 51 O.S.2001 § 152.1.
Where a waiver of sovereign immunity has
Vol. 82 — No. 24 — 9/17/2011
occurred, “[t]he liability of the state or political
subdivision under [the GTCA] shall be exclusive and in place of all other liability of the
state, a political subdivision or employee at
common law or otherwise.” Id. § 153(B). Oklahoma has waived sovereign immunity in certain circumstances:
The state or a political subdivision shall be
liable for loss resulting from its torts or the
torts of its employees acting within the
scope of their employment subject to the
limitations and exceptions specified in this
act and only where the state or political
subdivision, if a private person or entity,
would be liable for money damages under
the laws of this state. The state or a political
subdivision shall not be liable under the
provisions of this act for any act or omission of an employee acting outside the
scope of his employment.
Id. § 153(A). The County argues that sovereign
immunity has not been waived with respect to
the “[p]rovision, equipping, operation or maintenance of any prison, jail or correctional facility . . . .” See id. § 155(24). However, based on
the Supreme Court’s analysis in Washington v.
Barry, 2002 OK 45, 55 P.3d 1036, we hold that
the GTCA is no defense to a claim for violation
of Okla. Const. art. 2, § 30, brought by an
arrestee or pretrial detainee.
¶30 As discussed, Washington v. Barry
involved injuries to a non-compliant prisoner
resulting from disciplinary action taken by
prison officials to remove his handcuffs. With
respect to the prisoner’s tort claims, the Court
held that section 155(24) of the GTCA immunized the governmental entity and its employees acting within the scope of their employment from suit for those injuries. The Court
then addressed the prisoner’s claim, based on
the same incident, that his constitutional rights
had been violated, concluding that the
“[p]laintiff had a potential cause of action for
the excessive use of force by the defendant
prison employees but failed to state an actionable claim in his petition.” Washington, 2002
OK 45, ¶ 9, 55 P.3d at 1038. Applying the analysis used in Whitley v. Albers, the Court found
that Washington’s “potential” claim failed to
show the necessary “wantonness in the infliction of pain.” Id. ¶ 13, 55 P.3d at 1039 (citing 475
U.S. 312, 320-21, 106 S. Ct. 1078, 1085).
¶31 In reaching this conclusion, the Washington Court found that the GTCA provided no
Vol. 82 — No. 24 — 9/17/2011
immunity for Washington’s claim for violation
of his constitutional rights. And, the Court has
consistently adhered to this position.
The purpose of §155(4) is to protect the
discretionary acts of law enforcement officers in deciding whether a given situation
calls for enforcing a law or not. That choice,
whichever way it goes, may result in a detriment visited upon either the person with
whom the officer is engaged or upon a
third person. It is the exercise of that discretion which is protected by this exemption.
Once an officer makes the decision to
enforce a law by making an arrest, he or
she must do so in a lawful manner. If a tort
is committed in the process of making an
arrest, §155(4) does not provide immunity
from suit to the officer’s governmental
employer for the resulting damages.
Morales v. City of Oklahoma City, 2010 OK 9, ¶ 12,
230 P.3d 869, 876. See Tuffy’s Inc. v. City of Oklahoma City, 2009 OK 4, ¶ 20, 212 P.3d 1158, 1167:
To construe §155(4) as providing blanket
immunity to political subdivisions for any
claim arising from law enforcement would
not conform to established precedent. We
have consistently held that a municipality
is liable for the tortious acts of police officers committed within the scope of employment as defined by the GTCA.
See Decorte v. Robinson, 1998 OK 87, 969 P.2d
358 (affirming a judgment against a city in
favor of an arrestee who had been subjected to
the excessive use of a choke-hold by an offduty police officer, finding there was evidence
to support the conclusion that the officer was
acting within the scope of his authority as
defined in section 155(4) of the GTCA). Therefore, we find that summary judgment is not
appropriate as to Bryson’s state constitutional
claim of excessive force.
CONCLUSION
¶32 The district court correctly granted the
County’s motion for summary judgment with
respect to Bryson’s claim for assault, battery
and negligence. Likewise, the County established that it was not Miller’s employer and
cannot be held liable for any torts that may
have been committed by him on the legal theory of respondeat superior. Further, prior to conviction and incarceration, Bryson has no right
to be free from cruel and unusual punishment
based on either the Eighth Amendment to the
2141
United States Constitution or Okla. Const. art.
2, § 9. Those claims were correctly disposed of
and the district court’s order granting the
County’s motion for summary judgment is
affirmed in that respect. However, the County
failed to show that it had discharged its constitutional duty to adequately provide for the
County jail, or that it was not responsible for
staffing decisions of the County’s final decision-maker with respect to that issue. Consequently, Bryson’s 42 U.S.C. § 1983 claim based
on an alleged violation of the Fourth Amendment to the United States Constitution, and his
claim for violation of Okla. Const. art. 2, § 30,
cannot be resolved on the basis of this summary judgment record. The order granting the
County’s motion for summary judgment in
that respect is reversed and the case is remanded for further proceedings.
8. These allegations distinguish this case from Estate of Crowell v.
Bd. of County Comm’rs, 2010 OK 5, 237 P.3d 134, in which the alleged
failure to provide adequate medical care resulted in the death of a
prisoner. The record established that the sheriff had developed a policy
specific to Crowell designed to provide her necessary medical care.
However, it was disputed whether the sheriff and his deputies were
negligent in implementing this policy or supervising and training
those who had direct care of Crowell. There were no facts in that case
establishing that any defective county policy or custom resulted in the
denial of medical care or that the sheriff’s established policy for Crowell was defective. Accordingly, summary judgment in favor of the
county was affirmed. Likewise distinguishable is Madoux v. City of Norman, 2008 WL 938596 (W.D. Okla.), in which the federal district court
for the Western District of Oklahoma, relying on Meade, 841 F.2d 1512,
granted the county’s motion to dismiss a complaint, finding the
plaintiff’s conclusory allegations that the county commissioners failure
to properly fund the sheriff’s office had resulted in a denial of medical
care were insufficient to state a “plausible” claim. Cf. Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 127 S. Ct. 1955 (2007) (holding complaints in
federal cases must contain sufficient factual matter that if true would
state a claim that is plausible on its face). Oklahoma has not adopted
this pleading standard. See Kirby v. Jean’s Plumbing Heat & Air, 2009 OK
65, ¶ 5, 222 P.3d 21, 24 (“A petition can generally be dismissed only for
lack of any cognizable legal theory to support the claim or for insufficient facts under a cognizable legal theory.”).
¶33 AFFIRMED IN PART, REVERSED IN
PART AND REMANDED FOR FURTHER
PROCEEDINGS.
1. Bryson’s petition contains seven “causes of action” in which
these six theories of recovery are stated, the seventh being a request for
punitive damages. Although denominated as separate causes of
action, all are based on one event, the alleged assault and battery by
Miller. Therefore, Bryson has one cause of action for which he has
asserted six theories of liability. See Resolution Trust Corp. v. Greer, 1995
OK 126, ¶ 11, 911 P.2d 257, 260-61.
2. “Motions for summary judgment do not admit all the wellpleaded facts in a petition.” Weeks v. Wedgewood Village, Inc., 1976 OK
72, ¶ 12, 554 P.2d 780, 784. Nonetheless, the County’s motion is not
predicated on denying that Miller engaged in the conduct of which he
is accused by Bryson.
3. 1979 OK AG 98(cited for the proposition that the sheriff and the
district attorney are the only two law enforcement officials in a county)
and 1976 OK AG 338(cited for the proposition that a board of county
commissioners does not have the authority to designate the number of
deputies a sheriff may employ). Although Meade was correctly decided
because there was no alleged connection between the excessive force
used by sheriff’s deputies and a county policy or custom, as discussed
in Part III, our view of the County’s statutory and constitutional
responsibility for the jail differs from that expressed in Meade.
4. Because we find that the County cannot be held liable for
Bryson’s tort claims, we do not address the County’s immunity pursuant to the GTCA with respect to those claims.
5. The Tenth Circuit decided Meade v. Grubbs, 841 F.2d 1512, the
year before Graham v. Connor. In Meade, the Tenth Circuit determined
that the Fourteenth Amendment to the United States Constitution
provided arrestees and pretrial detainees protection from the use of
excessive force. Although the Fourth Amendment is made applicable
to the states through the Fourteenth Amendment, the United States
Supreme Court clearly established in Graham that the Fourth Amendment is the substantive law providing a basis for these types of claims.
See Graham, 490 U.S. at 394, 109 S. Ct. at 1871.
6. Cf. Norton v. the City of Marietta, Oklahoma, 432 F.3d 1145, 1156
(10th Cir. 2005) (“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates a prisoner’s
constitutional rights.”).
7. The County did not respond to this contention. Therefore, for
purposes of summary judgment, this fact must be taken as true. “The
moving party has the burden of showing that there is no substantial
controvery [sic] as to any material fact . . . . After this showing, the
opposing party must demonstrate . . . existence of a material fact in
dispute which would justify a trial.” Hargrave v. Canadian Valley Elec.
Coop., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50, 55.
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Vol. 82 — No. 24 — 9/17/2011
Vol. 82 — No. 24 — 9/17/2011
2143
NOTICE
Legal Ethics Advisory Opinion
Advisory Opinion 2011-OK LEG ETH 01
NOTICE: THIS ADVISORY OPINION IS
SUBJECT TO REVISION OR WITHDRAWAL. Applications requesting its
modification, correction, clarification, or
withdrawal must be made in accordance
with Legal Ethics Advisory Panel rules
governing appeals and received by the
Panel Coordinator on or before the thirtieth day of the publication date of the Oklahoma Bar Journal in which this opinion
appears.
On written application to the Panel Coordinator, a member in good standing of the Oklahoma Bar Association may seek the modification,
correction, clarification, or withdrawal of an
advisory opinion issued by the Oklahoma Legal
Ethics Advisory Panel. Applications must be
received by the Panel Coordinator on or before
the thirtieth day of the advisory opinion’s
publication date. The “publication date” of an
advisory opinion shall be the date on which the
opinion is first published in the Oklahoma
Bar Journal.
The rules governing appeals may be found
on the OBA website at www.okbar.org/news/
news_06/EthicsPanel.htm.
Send such requests to Panel Coordinator Jim
Drummond, 220 ½ East Main St. Suite 2, Norman, OK 73069.
QUESTION:
DISCUSSION:
During the active representation of a client, a
lawyer may be called upon by the client to recommend a third-party non-lawyer service provider to the client for the client to engage
directly. Examples may include investment
advisors, certified public accountants, title
insurance companies, bonding companies, and
expert witnesses. In recommending such service
providers, the lawyer must have paramount
concern for the client’s interests. The lawyer’s
judgment cannot be influenced by a promised
payment to the lawyer from the third party,
under our view of Rule 2.1. In addition, the risk
of conflict between the interests of the client and
the interests of the lawyer is unacceptable under
Rule 1.7. Finally, although the lawyer does not
directly engage in a business transaction with
the client, a referral fee has the characteristics of
a vicarious business transaction with the service
provider which impacts the lawyer’s client and
thus effectively draws that client into the business transaction. Thus in our view the referral
fee is also unacceptable under Rule 1.8. However, the principle and most controlling provision of OPRC is Rule 2.1.
ORPC 2.1 provides:
In representing a client, a lawyer shall exercise independent professional judgment
and render candid advice. In rendering
advice, a lawyer may refer not only to law
but to other considerations such as moral,
economic, social and political factors, that
may be relevant to the client’s situation.
Is a lawyer permitted to refer a current client
to a registered investment advisor (or other nonlawyer service provider) in exchange for a referral fee? As explained below, this question is
“In representing a client, a lawyer shall exeranswered in the negative, partially overruling
cise independent professional
Opinion 316, adopted Decemjudgment and render candid
ber 14, 2001, in particular Secadvice.” See ORPC 2.1. The
tion (E), beginning at page 12,
This
advisory
opinion
is
mandate of this rule contemopining as to the propriety of
plates
recommendations
subject to revision or
accepting referral fees from
unfettered by the lawyer’s
non-lawyer service providers.
withdrawal
pecuniary interests.
2144
Vol. 82 — No. 24 — 9/17/2011
In order to think and act independently, a
lawyer must be free from outside control or
influence. So, the question becomes whether a
lawyer can remain true to the duty of independent thinking and still make a referral to an
investment advisor knowing that the referral
will garner the attorney a fee. This knowledge,
in the Panel’s view, will always — in a qualitative manner — taint or influence a lawyer’s
decision, or at the very least appear to taint or
influence that decision, because it will always
be an outside influence.
In addition, law is a profession. Lawyers
make up one of the three original learned professions (medicine, law, and theology) traditionally believed to require advanced learning
and high principles. They were dignified by
the title of “profession” and set apart from
other occupations because they were more
than a livelihood. The profession of law is a
calling to some higher satisfaction than commercial gain.
A lawyer engaged by a client would be ill
advised to refer that client to another service
provider (e.g. a registered investment advisor)
in exchange for a fee from that other provider,
as violative of ORPC 2.1.
A lawyer may, however, receive a de minimis gift
that is not a quid pro quo for referring a client.
Opinion 316(E) in 2001 reached a close conclusion, with vigorous dissent, that Rules 1.7
and 1.8 do not prohibit acceptance of such
referral fees, although cautioning that the “safest and least onerous course of conduct would
be for a lawyer to avoid conflict of interest and
ethical violations by not entering into business
transactions with a client beyond the attorneyclient relationship. . . .” See Abstract at page 1.
However, other than a mention of Rule 2.1 as an
applicable rule, there is no discussion of Rule 2.1
in the referral fee context in Section E. Nor, for
that matter, is Rule 2.1 given overall emphasis or
substantive discussion in an opinion which primarily discusses Rules 1.7 and 1.8. Rule 2.1
forms the primary crux of our opinion here. We
join those jurisdictions which have concluded
that such referral fees are per se unethical, because
we do not believe that any set of disclosures or
any degree of candor can render a lawyer’s
judgment truly independent in such a situation
either in fact or in appearance.
Further, we think there remains under Rule
1.7(a)(2) an unacceptable potential for a conflict
of interest between the client’s interest in getVol. 82 — No. 24 — 9/17/2011
ting a candid, independent recommendation,
and the lawyer’s personal interest in getting a
referral fee. The lawyer is representing the client in other active concurrent legal matters. In
that situation the client must rely heavily if not
entirely on the lawyer’s advocacy in that legal
matter. Many clients would feel uncomfortable
or afraid to alienate their attorney on whom so
much depends, by not acquiescing in engaging
with the referred service provider and doing
their lawyer that favor. The referral fee is thus
too susceptible to a conflict of interest, and the
profession’s obligation to maintain high ethical
standards is thus too uncomfortably susceptible to public skepticism and the appearance of
exploitation and/or impropriety.
We emphasize that this opinion does not preclude such referral fees where the person referred
is not an active or concurrent client of the lawyer
under Rule 1.7, Rule 1.8, or Rule 2.1. We are not
asked to comment on whether referral fees are
acceptable where the representation is not current but where there is high likelihood that the
person referred will be a client in the future or
has been a repeated client in the past.
Finally, even under Rule 1.8, we feel that no
amount of disclosure or client consent can
obscure the fact that there is a business transaction with the non-lawyer service provider
which may not benefit the client. Perhaps if a
lawyer gave several recommendations and
mentioned that one, but not all, of the companies or individuals to whom the client is
referred, will pay the lawyer a referral fee, it
might seem by some reasonable minds to pass
muster if Rule 1.8 were the only Rule considered. It would be a stretch to say that Rule
1.8(f) prohibits referral fees because the referral
fee is compensation for representation of the
client from one other than the client, since the
referral fee is not compensation for the lawyer’s legal services. But the referral fee does, as
prohibited in Rule 1.8(f)(2), pose likely interference “with the lawyer’s independence of professional judgment” with an emphasis on the
word “professional.” The practice of law is not
a trade or a guild, but a profession. The referral
fee may be seen by the public as a sort of extra
compensation the lawyer garners through his
concurrent legal representation. Although lawyers regularly must closely parse rules such as
Rule 1.8, the public cannot be expected to do
so. It is important not to subject clients to
resigned cynicism about the way the legal profession works.
2145
This opinion does not disturb the other portions of Opinion 316 in Sections A-D. Principally this is because the inquiry here does not
raise those issues, not, as the minority opinion
suggests, because the majority is absolutely
comfortable with any perceived discrepancy as
to the comparative force of Rule 2.1’s injunction
regarding independent judgment regarding provision of non-lawyer services directly by a lawyer. That said, by way of response to this alleged
inconsistency, while we agree with Opinion 316
that the safest course is not to mix lawyer and
non-lawyer services, at least when that happens
the lawyer can accept responsibility, and the
lawyer bears some degree of liability or accountability, for the products or services sold to the
active client. We think it more attenuated and
problematic for a client to have to litigate a
breach of fiduciary duty, a remedy suggested by
the dissenting members, in a situation where the
client risks trusting a non-service provider
referred by the client’s attorney for a fee. In a
referral fee situation the lawyer essentially bears
no direct personal responsibility for the outcome. Consistently with our views, a lawyer
may not pay referral fees to non-lawyers who
refer clients to that lawyer or accept such referral
fees from non-lawyers.
For these reasons we answer the inquiry in
the negative.
DISSENT
In Advisory Opinion 316, adopted December
14, 2001, the Committee decided that a lawyer
engaged to provide estate planning services to
a client could ethically offer to sell the client
financial products, or refer the client to a financial products business in which the attorney
owns an interest or from which the attorney
would receive a fee for the purchase of such
products, so long as the stringent requirements
of Rules of Professional Conduct 1.7(b)1 and
1.8(a) were met as to each transaction. The
minority believes that the current inquiry is
analytically indistinguishable, and that Opinion 316 was properly decided and should be
applied undisturbed to the current inquiry.
The majority here overrules Opinion 316’s
holding that an attorney may, under appropriate circumstances, ethically receive a fee from
an entity to which the lawyer referred a client
for financial services. Relying primarily upon
the Rule of Professional Conduct 2.1 requirement that attorneys exercise “independent professional judgment” in providing legal services
2146
to a client, the majority concludes that such
fees are “per se unethical” and that no set of
disclosures “can render a lawyer’s judgment
truly independent in such a situation.” The
majority leaves undisturbed Opinion 316’s
holding that the lawyer may directly provide
the financial services, or refer the client to a
financial services entity in which the lawyer
owns an interest.
It is the minority’s view that these conclusions
are inconsistent with Rule 5.7 and are not
required by, and cannot be reconciled under,
Rule 2.1. Oklahoma Rule of Professional Conduct 5.7 was adopted from the ABA Model Rules
in September 2002.2 Rule 5.7 reflects the evolution of the view of the propriety of lawyers providing ancillary services to their clients. See ABA
CTR. OF PROF’L RESPONSIBILITY, ANNOTATED MODEL RULES OF PROFESSIONAL
CONDUCT (5th ed. 2003) at 501-603 (discussing
the background of Model Rule 5.7). As pertinent
here, Rule 5.7 contemplates that a lawyer may
provide law-related services to a client by either
providing the services directly or referring the
client to a separate entity controlled by the lawyer, individually or with others, but the lawyer
must comply with Rule 1.8(a). See Rule 5.7 cmt.,
¶ 5. Similarly, the Comment to Rule 1.8(a) notes
that it applies to lawyers engaged in the sale of
law-related goods or services, such as investment services, to existing clients of the lawyers’
legal practice. Rule 1.8, cmt. 1. Thus, while
Rules 1.8 and 5.7 do not apply expressly to the
circumstances where the lawyer or an entity in
which he owns an interest do not actually provide the services, there is no basis on which to
conclude that the receipt of a fee for referral of
a client to an investment advisor not controlled
by the lawyer should be treated more stringently given the purpose of those Rules. Similarly, there is no logic in interpreting Rule 2.1 to
permit the one circumstance and not the other.
If the independent professional judgment
requirements are not violated by an attorney
deciding to directly provide the investment
services or to refer the client to a business from
which the attorney benefits directly through
ownership, as the majority recognizes, then
certainly independent professional judgment
is not per se negated by the prospect of a fee
from a business in which the attorney does not
own an interest.3
The majority’s view that Rule 2.1 prohibits
the receipt of a fee because the lawyer’s independent judgment is inevitably “tainted” by
Vol. 82 — No. 24 — 9/17/2011
his “pecuniary interests” goes too far. Lawyers
are regularly required to analyze and recommend legal options to clients where one option
is more lucrative to the lawyer than others.
Settlement is an example. An attorney providing services on an hourly rate basis has incentive to recommend that a case go to trial rather
than settle early because he stands to receive
substantially more in fees. The client’s interest
is precisely to avoid such fees and obtain the
best result possible as early as possible. Yet, the
rules permit attorneys to make those recommendations regularly without a presumption
against their being unable to do so because of
their pecuniary interests.
Business transactions with clients in which
the lawyer may benefit financially unquestionably increase the danger of affecting the lawyer’s independent professional judgment.
However, the rules do not contemplate that
such danger requires a blanket prohibition
against a lawyer’s business transactions with
clients. Instead, Rules 1.8 and 5.7 contemplate
that such transactions may occur if the stringent requirements of Rules 1.7(a)(2) and 1.8(a)
are satisfied.
The majority concludes that the requirements
of Rule 1.7(a)(2) and Rule 1.8(a) can never be
satisfied under the circumstances described.
For the reasons stated above, this holding is
inconsistent with Rules 1.8(a) and 5.7. The
applicability and requirements of Rules 1.7(a)(2)
and 1.8(a) are analyzed in Opinion 316 and
apply equally, or indeed with greater force,
since the adoption of 5.7, to the issues here presented. The analysis is not repeated here, but
reference is specifically made to the detailed
and onerous informed consent and disclosure
requirements described in Opinion 316 as necessary to satisfy the ethical requirements.
The holding of Opinion 316 and the conclusion of this dissent that a fee may be received
by a lawyer referring a client to an investment
Vol. 82 — No. 24 — 9/17/2011
advisor or like services, after first making a
case-by-case determination of reasonableness
under Rule 1.7(a)(2) and full disclosures under
Rule 1.8(a), are in accord with holdings of the
ABA and the ethics opinions of a number of
other states. See e.g. ABA Informal Op. 1482
(lawyer does not violate any Model Rule in
recommending the services of one client to
another client so long as the second client consents after the lawyer has made full disclosure
of the commission to be received by the lawyer); Arizona Opinion 05-10 (May 2005) (reversing prior opinion 98-09 which held the receipt
of such fees per se unethical, based on Rule
1.8(a) and newly adopted Rule 5.7); California
Opinion 1999-154 (Aug. 27, 1999); Connecticut
Informal Opinion 97-16 (June 4, 1997); Florida
Opinion 02-8 (Jan. 16, 2004); Illinois Opinion
97-04 (Mar. 5, 1997); Michigan Informal Opinion RI-317 (Feb. 14, 2000); Missouri Informal
Opinion 960124 (undated); Pennsylvania Opinion 2000-100 (May 2000); Rhode Island Opinion 99-08 (May 13, 1999); Utah Opinion 99-07
(Dec. 3, 1999).
In accord with the above analysis and authorities, the minority sees no reason to deviate
from the conclusions of 316, with all of the
detailed limitations and cautions contained
therein.
1. Now Rule 1.7(a)(2), amended by Order April 9, 2007, eff. Jan. 1, 2008.
2. Rule 5.7 was adopted after Opinion 316 and reinforces the
soundness of that Opinion.
3. The majority distinguishes those portions of 316 which it does
not overrule — direct provision of services by the lawyer or referral to
an entity he controls — because the lawyer retains “some degree of
liability or accountability” for the services whereas the attorney “bears
no personal responsibility” when referred to a third-party. Setting
aside the fact that the client has redress directly against the entity issuing the product, if the lawyer is making the referral as part of the ongoing obligations to the client, as the majority concludes in applying
Rule 2.1, the lawyer remains subject to breach of fiduciary duty or
other claims by the client. In any event, the majority does not explain
how “independent professional judgment” is more properly exercised
by deciding to perform the services or have them performed by an
entity in which the lawyer owns an interest, and referring the client to
a third-party which the lawyers believes is an able advisor. It is only
the avenues of redress available to the client that is addressed by the
majority’s distinction.
2147
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2148
Vol. 82 — No. 24 — 9/17/2011
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Wednesday, June 29, 2011
RE-2010-88 — Stacy Sloan Whiteley entered
pleas of guilty to Driving Under the Influence,
Count I, and Transporting a Loaded Firearm,
Count II, in Custer County District Court Case
No. CM-2008-118. Whiteley’s sentence was
deferred for two years. Subsequently, Whiteley’s deferred sentence was accelerated and he
was sentenced to six months incarceration.
From this order of acceleration, Whiteley has
perfected this appeal. The District Court’s
order accelerating Stacy Sloan Whiteley’s
deferred sentence is AFFIRMED. Opinion by:
Lewis, V.P.J.; A. Johnson, P.J., concurs; Lumpkin, J., concurs; C. Johnson, J., concurs; Smith,
J., concurs.
Wednesday, July 13, 2011
F-2010-82 — Appellant, Enrique Pacheco, was
tried by jury and convicted of First Degree Malice Murder, in violation of 21 O.S.2001, § 701.7(A),
in the District Court of Muskogee County, case
number CF-2007-742, before the Honorable
Norman Thygesen, Associate District Judge.
The jury sentenced Pacheco to life imprisonment without the possibility of parole. Judge
Thygesen sentenced Pacheco in accordance
with the jury verdict on January 13, 2010. From
the Judgment and Sentence Pacheco has perfected his appeal to this court. AFFIRMED.
Opinion by: Lewis, V.P.J.; A. Johnson, P.J., Concurs in Results; Lumpkin, J., Concurs; C. Johnson, J., Concurs; Smith, J., Concurs.
C-2010-260 — Anthony Frank Monaco, Petitioner, entered a blind plea of guilty to ten
counts of Child Sexual Abuse in Case No. CF2009-575, in the District Court of Canadian
County. The trial court sentenced Monaco to
twenty-five (25) years imprisonment on each of
Counts 1 through 9, to run concurrently, and
ten (10) years imprisonment on Count 10, to be
served consecutively to the other counts.
Monaco’s filed a motion to withdraw his plea
in a hearing held on March 5, 2010. At the conclusion of the hearing, trial court denied the
motion. The trial court sentenced accordingly.
Vol. 82 — No. 24 — 9/17/2011
From this judgment and sentence Anthony
Frank Monaco has perfected his appeal. The
Petition for Certiorari is GRANTED, and this
case is REMANDED to the district court FOR
APOINTMENT OF NEW COUNSEL ON
MONACO’S MOTION TO WITHDRAW HIS
GUILTY PLEA. The district court is directed to
determine the adequacy of Monaco’s guilty
plea consistent with the principles and discussion contained herein. Opinion by: Smith, J.;
A. Johnson, P.J., Concur; Lewis, V.P.J., Concur
in Results; Lumpkin, J., Concur in Part/Dissent
in Part; C. Johnson, J., Concur.
Thursday, July 21, 2011
F-2010-2 — Clinton Riley Potts, Appellant,
was tried by jury for the crime of First Degree
Murder, in Case No. CF-2007-1058, in the District Court of Muskogee County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment without possibility of parole. The trial court sentenced
accordingly. From this judgment and sentence
Clinton Riley Potts has perfected his appeal.
REVERSED AND REMANDED FOR A NEW
TRIAL. Opinion by: C. Johnson, J.; A. Johnson,
P.J., Concurs; Lewis, V.P.J., Concurs; Lumpkin,
J., Concurs; Smith, J., Concurs.
F-2010-798 — Michael Lee Albright, Appellant, was tried by jury for the crimes of Possession of a Stolen Vehicle (Count 1), and Felony
Eluding a Police Officer (Count 2), both After
Former Conviction of Two or More Felonies, in
Case No. CF-2009-760 in the District Court of
Tulsa County. The jury returned a verdict of
guilty and recommended as punishment seven
years imprisonment on each count, a $600 fine,
and a $150.00 victim’s compensation assessment. The trial court sentenced accordingly
and ordered the sentences to be served concurrently. From this judgment and sentence
Michael Lee Albright has perfected his appeal.
The Judgment and Sentence of the District
Court is AFFIRMED. Opinion by: A. Johnson,
P.J.; Lewis, V.P.J., concurs; Lumpkin, J., concurs;
C. Johnson, J., concurs; Smith, J., concurs.
F-2010-27 — Eric William McClendon, Appellant, was tried by jury for the crimes of First
2149
Degree Burglary (Count 1) and Attempted Rape
(Count 2) in Case No. CF-2008-2452, in the District Court of Oklahoma County. The jury
as punishment twenty years imprisonment on
each count. The trial court sentenced accordingly
and ordered the sentences to be served concurrently. From this judgment and sentence Eric
William McClendon has perfected his appeal.
The Judgment and Sentence of the District
Court is AFFIRMED. Opinion by: A. Johnson,
P.J.; Lewis, V.P.J., concurs in results; Lumpkin,
J., concurs; C. Johnson, J., concurs; Smith, J.,
concurs.
C-2010-1033 — Shawn Leroy Harger, Petitioner, entered a blind plea of no contest to the crime
of Child Abuse in Case No. CF-2009-28 in the
District Court of Garfield County, with the
understanding that the State would recommend
its previously negotiated offer of twenty years
imprisonment. The Honorable Ronald G. Franklin accepted Harger’s plea and, following a presentence investigation and hearing, sentenced
him to twenty years imprisonment. Harger filed
an application to withdraw guilty plea, and
after the prescribed hearing, the court denied
Harger’s application. Shawn Leroy Harger
appeals the District Court’s order and asks this
Court to grant certiorari and remand this matter
to the District Court for a complete evidentiary
hearing on the merits of his motion with the
assistance of effective, conflict-free counsel. The
Petition for Writ of Certiorari is GRANTED. The
Judgment and Sentence of the District Court is
REVERSED and the matter REMANDED for a
new hearing on Harger’s Application to withdraw plea with separate, conflict-free counsel.
Opinion by: A. Johnson, P.J.; Lewis, V.P.J., concurs; Lumpkin, J., concurs in results; C. Johnson,
J., concurs; Smith, J., concurs.
Monday, July 25, 2011
C-2010-779 — Leon Lee Hooks, Petitioner,
was charged in the District Court of Muskogee
County, in Case No. CF-2009-463, with First
Degree Rape, After Former Conviction of a
Felony. Petitioner entered a negotiated plea of
guilty to the crime charged. The Honorable
Mike Norman accepted Petitioner’s plea and
sentenced him to thirty years imprisonment
with all but the first ten years suspended. Petitioner subsequently filed a motion to withdraw
his guilty plea. His motion was denied after a
hearing. Petitioner appealed this ruling and
this Court remanded the case back to the dis2150
trict court for a new hearing with conflict-free
counsel. New counsel was appointed and a
second hearing was held on Petitioner’s motion
to withdraw. The trial court denied the application and this appeal followed. The Petition for
Writ of Certiorari is DENIED, and the Judgment and Sentence of the District Court is
AFFIRMED. Opinion by: C. Johnson, J.;
A. Johnson, P.J., concurs; Lewis, V.P.J., concurs;
Lumpkin, J., concurs; Smith, J., concurs.
Tuesday, July 26, 2011
RE-2010-187 — Torrez Ceasar entered a plea
of guilty to Possession of a Controlled Dangerous Substance with Intent to Distribute, Cocaine
Base, Count I, and Possession of a Controlled
Dangerous Substance, Marijuana, Count II, in
Oklahoma County District Court Case No. CF98-5104. Ceasar was sentenced to ten years
incarceration on Count I, and one year incarceration on Count II, all suspended, with the
sentences ordered to run concurrently. Subsequently, Ceasar’s suspended sentence was
revoked in full. From this order of revocation,
Ceasar has perfected this appeal. The District
Court’s order revoking Torrez Ceasar’s suspended sentence is AFFIRMED. Opinion by C.
Johnson, J.; A. Johnson, P.J., concurs; Lewis,
V.P.J., concurs; Lumpkin, J., concurs; Smith, J.,
concurs.
F-2010-935 — Appellant Tracy Lynn French
was tried by jury and found guilty of two
counts of Second Degree Burglary, After Former
Conviction of Two or More Felony Convictions,
in the District Court of Carter County, Case No.
CF-2010-192. The jury recommended as punishment imprisonment for twelve (12) years in
Count I and fifteen (15) years in Count II. The
trial court sentenced accordingly, ordering the
sentences be served consecutively. It is from this
judgment and sentence that Appellant appeals.
AFFIRMED. Opinion by Lumpkin J.; A. Johnson, P.J., concur; Lewis, V.P.J., concur; C. Johnson, J., concur; Smith, J., concur.
Friday, July 29, 2011
F-2009-344 — Michael Anthony Birch, Appellant, was tried by jury for the crimes of Lewd
Acts with a Child under Sixteen (Count I), and
Lewd Acts with a Child Under Sixteen (Count
V) in Case No. CF-2006-5900 in the District
Court of Oklahoma County and in Case No.
CF-2008-4091, also in the District Court of
Oklahoma County, for the crimes of Lewd Acts
Vol. 82 — No. 24 — 9/17/2011
with a Child under Sixteen (Count I), and
Attempted Lewd Acts with a Child under Sixteen (Count II). The jury returned a verdict of
guilty and recommended as punishment in
Case No. CF-2006-5900, four years imprisonment on Count I and six years imprisonment
on Count V, and in Case No. CF-2008-4091,
four years imprisonment on Count I and one
year imprisonment on Count II. The trial court
sentenced accordingly and ordered the sentences in each case to be served consecutively
to one another and the sentences in CF-20084091 to run consecutively with those of
CF-2006-5900. From this judgment and sentence Michael Anthony Birch has perfected his
appeal. The Judgment and Sentence of the
District Court is AFFIRMED. Opinion by: A.
Johnson, P.J.; Lewis, V.P.J., concurs; Lumpkin,
J., concurs in results; C. Johnson, J., concurs;
Smith, J., concurs.
F-2010-954 — David Allen Lacy, Appellant,
was tried by jury for the crimes of two counts
of Obtaining Cash or Merchandise by False
Pretenses, After Former Conviction of a Felony,
in Case No. CF-2009-222, in the District Court
of Stephens County. The jury returned a verdict of guilty and recommended as punishment nine years imprisonment on Count I, and
one year imprisonment and a $5,000.00 fine on
Count II. The trial court sentenced accordingly
ordering the sentences be served concurrently.
From this judgment and sentence David Allen
Lacy has perfected his appeal. AFFIRMED.
Opinion by: C. Johnson, J.; A. Johnson, P.J., concurs; Lewis, V.P.J., concurs; Lumpkin, J., concurs; Smith, J., concurs.
C-2010-897 — Petitioner, Sheila Annette Dollar, was charged by Information in the District
Court of Oklahoma County, Case No. CF-20084533, with Forgery in the Second Degree, After
Former Conviction of Two or More Felonies.
On February 8, 2010, Petitioner entered a blind
plea of guilty before the Honorable Ray C.
Elliott, District Judge. Petitioner’s plea was
accepted and the matter was set for sentencing
April 2, 2010, pending receipt of the presentence investigation report. On August 27,
2010, the trial court sentenced Petitioner to fifteen (15) years imprisonment, a $50.00 fine, a
$50.00 Victim Compensation Assessment, and
a $175.00 Pre-Sentence Investigation Assessment. On September 7, 2010, Petitioner filed
her Application to Withdraw Plea of Guilty. At
a hearing held on September 10, 2010, the trial
court denied the application to withdraw the
Vol. 82 — No. 24 — 9/17/2011
guilty plea. It is that denial which is the subject
of this appeal. Accordingly, the order of the
district court denying Petitioner’s motion to
withdraw plea of guilty is AFFIRMED. This
matter is REMANDED to the trial court with
instructions to enter an order nunc pro tunc
correcting the Judgment and Sentence to accurately reflect the court’s order that Petitioner
pay a $50.00 fine, a $50.00 Victims Compensation Assessment and a $175.00 Pre-Sentence
Investigation Assessment. Opinion by: Lumpkin, J.; A. Johnson, P.J., concur; Lewis V.P.J.,
concur; C. Johnson, J., concur; Smith, J., concur
in results.
S-2010-872 — State of Oklahoma v. Vysean
Leondre Embry. The State of Oklahoma, Appellant, appeals the order of the Honorable Kurt
Glassco, District Judge, sustaining Appellees
motion to quash the information for insufficient evidence in the District Court of Tulsa
County, Case Number CF-2010-1233. The order
of the District Court of Tulsa County is
REVERSED. Opinion by: Lewis, V.P.J.; A. Johnson, P.J., concurs; Lumpkin, J., concurs; C.
Johnson, J., concurs; Smith, J., recuses.
Monday, August 1, 2011
C-2010-340 — Joshua Dee Taylor, Petitioner,
entered a negotiated plea of guilty to the crimes
of Assault with a Dangerous Weapon (Count 1)
and Misdemeanor Domestic Abuse, Assault
and Battery in the Presence of a Minor (Count
2) in Case No. CF-2009-338 in the District Court
of Custer County. The Honorable Donna L.
Dirickson accepted Taylor’s plea and, under
the terms of the plea agreement, sentenced him
to a seven-year suspended sentence on Count 1
and a one-year suspended sentence on Count
2. Taylor filed a timely motion to withdraw
plea and after the prescribed hearing, the
motion was denied by the District Court. Taylor appeals the District Court’s order and asks
this Court to grant certiorari and allow him to
withdraw his plea or favorably modify his sentence. The Petition for Writ of Certiorari is
DENIED. The Judgment and Sentence of the
District Court is AFFIRMED. The case is
remanded to the District Court of Custer County, however, for the limited purpose of correcting the Judgment and Sentence nunc pro tunc
to properly reflect the legal descriptions and
statutory references of the crimes of conviction.
Opinion by: A. Johnson, P.J.; Lewis, V.P.J., concurs; Lumpkin, J., concurs in results; C. Johnson, J., concurs; Smith, J., concurs.
2151
M-2009-634 — On March 6, 2009, Appellant
was convicted of Count 1, Injury to a Vehicle
and Counts 2, 3, 5, 6 and 7, Assault and Battery
in Tulsa County Case No. CM-2008-2641. The
Honorable Gordon D. McAllister, Jr., District
Judge, sentenced Cooper to pay fines of $250.00
each for Counts 1, 3, 5, 6 and 7 and $500.00 for
Count 2. From these judgments and sentences,
Appellant appeals. Appellant’s convictions are
AFFIRMED. Opinion by: Lumpkin, J.; A. Johnson, P.J., concur; Lewis, V.P.J., Concur; C. Johnson, J., Concur; Smith, J., Concur.
RE 2010-0735 — Appellant, Leslie Kenneth
Copeland, was charged October 5, 2009, in
Pawnee County District Court Case No. CF2009-107, with Count 1 – Domestic Assault and
Battery by Strangulation, Count 2 – Resisting
an Officer, and Count 3 – Malicious Injury to
Property. Appellant pled guilty December 11,
2009, as charged. The Honorable Jefferson D.
Sellers, District Judge, sentenced Appellant to
three years suspended and a $1,000.00 fine on
Count 1 and a $100.00 fine on Counts 2 and 3.
The State filed a motion to revoke Appellant’s
suspended sentence on March 13, 2010. An
amended motion to revoke was filed on May
18, 2010. Following a revocation hearing June
11, 2010, Judge Sellers, finding Appellant violated the terms and conditions of probation,
revoked Appellant’s suspended sentence in
full. Appellant appeals from the revocation of
his suspended sentence. The revocation of
Appellant’s suspended sentence is AFFIRMED.
Opinion by Lumpkin, J.; A. Johnson, P.J., concur; Lewis, V.P.J., concur; C. Johnson, J., concur;
Smith, J., concur.
Wednesday, August 3, 2011
F-2010-631 — David Michael Jenkins, Appellant, was tried by jury for the crime of First
Degree Murder, in Case No. CF-2008-6269, in
the District Court of Tulsa County. The jury
as punishment life imprisonment. The trial
court sentenced accordingly. From this judgment and sentence David Michael Jenkins has
perfected his appeal. AFFIRMED. Opinion by:
C. Johnson, J.; A. Johnson, P.J., Concurs; Lewis,
V.P.J., Concurs; Lumpkin, J., Concurs; Smith, J.,
Concurs.
Thursday, August 4, 2011
F-2010-62 — Verge A. Jeffery, Appellant, was
tried by jury for the crime of Trafficking in an
Illegal Drug (marijuana), After One Previous
2152
Felony Conviction in Case No. CF-2009-36 in the
District Court of Texas County. The jury returned
a verdict of guilty and recommended as punishment twenty-five years imprisonment and a
$100,000.00 fine. The trial court sentenced accordingly. From this judgment and sentence Verge A.
Jeffery has perfected his appeal. The Judgment
and Sentence of the District Court is AFFIRMED.
Opinion by: A. Johnson, P.J.; Lewis, V.P.J., concurs; Lumpkin, J., concurs; C. Johnson, J., concurs; Smith, J., concurs.
COURT OF CIVIL APPEALS
(Division No. 1)
107,405— James R. Keith, Plaintiff/Appellee,
vs. Bo Reid d/b/a Gold Spot Flooring, Defendant/Appellant. Appeal from the District
Court of Garfield County, Oklahoma. Honorable Norman L. Grey, Trial Judge. Appeal of a
judgment entered in a small claims lawsuit following denial of a Motion for Reconsideration
and/or for New Trial. HELD: The trial court’s
judgment is in accord with applicable sections
of the Uniform Commercial Code, (UCC), 12A
O.S.Supp.2006 § 1-101, et seq. Appellee was
entitled to a reasonable amount of time to
inspect carpet installed in a house he owned
for investment purposes before making an
acceptance or a rejection. 12A O.S.2001 § 2-602.
It is undisputed the wrong carpet was installed.
The seller’s remedies provided in 12A O.S.2001
§ 2-703 only apply to a wrongful rejection or
revocation of acceptance and, under the circumstances, did not apply. The right to cure
under 12A O.S.2001 § 2-508 must be offered
unconditionally and Appellant made no such
unconditional offer to cure. The trial court did
not abuse its discretion in denying Appellant’s
Motion for Reconsideration and/or for New
Trial and finding Appellee was entitled to a
refund of the partial payment made on the contract, costs, and attorney fees. The judgment is
AFFIRMED. Opinion by Hetherington, P.J.;
Bell, C.J., and Hansen, J., concur.
107,483 — Summa Engineering, Inc., Plaintiff/Appellant, vs. Crawley Petroleum Corporation, and Mack Energy Company, Defendants/
Appellees. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable Vicki
L. Robertson, Trial Judge. In this breach of contract and negligence action, Plaintiff alleges the
trial court erred by sustaining Defendants’
demurrer to the evidence at the close of Plaintiff’s case and entering judgment in Defen-
Vol. 82 — No. 24 — 9/17/2011
dants’ favor. We disagree. Defendants’ response
to Plaintiff’s proposal, which the parties agree
required the drilling of a vertical well, added
new, material terms and thereby rejected Plaintiff’s proposal. The parties’ subsequent writings, including their final agreement, do not
require a vertical well, and there is no evidence
of a renewal of the proposal. As a matter of law,
the evidence fails to establish a prima facie case
of breach of contract based on Defendants’ failure to drill a vertical well. We reach the same
conclusion as to Plaintiff’s breach of contract
claim based on the carried to casing point election. Under the evidence and testimony presented to the trial court, there are no restrictions, requirements or other duties required of
Defendants as it relates to the casing point
determination. Finally, assuming a duty of care
was owed under the lease or letter agreement,
there is no evidence that Defendants’s decision
to drill a horizontal well was made in bad faith
or that the drilling was performed negligently,
unreasonably or without due diligence. The
judgment sustaining Defendants’ demurrer to
the evidence or “motion for directed verdict” is
affirmed. AFFIRMED. Opinion by Hetherington, P.J.; Bell, C.J., and Hansen, J., concur.
108,307 — In Re the Marriage of: Melissa
Johnson, Petitioner/Appellee vs. Scott Johnson, Respondent/Appellant. Appeal from the
District Court of Comanche County, Oklahoma. Honorable Keith Byron Aycock, Trial Judge.
In August 1995, Appellee (Wife) filed a petition
for separate maintenance against Appellant
(Husband). In January 2009, she filed an
“amended petition for divorce.” On May 21,
2009, Judge Aycock entered a temporary
restraining order against Husband. Also in
May 2009, while a divorce matter was pending,
Judge Harris issued an emergency protective
order against Husband. Judge Aycock conducted the divorce trial in October 2009. The
Decree of Divorce filed February 4, 2010, determined child custody, property division and
support alimony. Judge Aycock also determined the protective order and mutual orders
of restraint remain in full force and effect for
the statutory limit of three years. Husband
appeals and contends Judge Aycock had no
authority to order the protective order, issued
by Judge Harris, to remain in effect for three
years. We find that in so ordering, Judge
Aycock abused his discretion contrary to 22
O.S. Supp. 2008 §60.2A(1). We also find the
court did not abuse its discretion in finding (1)
Vol. 82 — No. 24 — 9/17/2011
the 1970 Ford Mustang and the 1952 pickup is
marital property, (2) in its division of personal
property in the marital estate, and (3) that the
characterization of alimony in lieu of support
is, in fact, support alimony, not an award of
property. Husband also contends the court
abused its discretion in awarding physical custody of the parties’ two sons to Wife. This
Court cannot say the custody decision is contrary to the clear weight of the evidence or that
it is contrary to law. AFFIRMED IN PART;
REVERSED IN PART AND REMANDED with
directions to vacate that part of the decree
ordering the protective order and mutual
orders of restraint remain in full force and
effect for the statutory limit of three years.
AND REMANDED WITH DIRECTIONS.
Opinion by Hansen, J.; Hetherington, P.J., and
Bell, C.J., concur.
108,572 — In Re the Marriage of: Jamie D.
Shimanek (formerly Jamie Donn Green), Petitioner/Appellee, vs. Michael Shannon Green,
Respondent/Appellant. Appeal from the District Court of Kingfisher County, Oklahoma.
Honorable Susie M. Pritchett, Trial Judge.
Appellant (Father) seeks review of the trial
court’s order granting custody of the parties’
eighteen-year-old son (Son) to Appellee (Mother) and awarding child support for Son until he
graduated from high school. At issue is whether Son was attending high school as a full-time
student during the six-month period between
completing his coursework at the end of the
fall semester of 2009 and graduating at the end
of the spring semester of 2010. We hold he was
not a full-time student and modify the trial
court’s order accordingly. AFFIRMED AS
MODIFIED. Opinion by Hansen, J.; Hetherington, P.J., and Bell, C.J., concur.
108,808 — Jane Coldwell, M.S., Plaintiff/
Appellant, vs. State of Oklahoma, ex rel., Protective Health Services of The State Department of Health, Defendant/Appellee. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Bryan C. Dixon, Trial
Judge. Jane Coldwell (Coldwell) appeals the
dismissal with prejudice of her Petition for
Declaratory Judgment based upon her failure
to exhaust her administrative remedies. HELD:
The statutory provision cited by Coldwell, 75
O.S.2001 §306(D), in support of review is inapplicable to the pending quasi-adjudicative,
individual proceedings. Coldwell is required
to exhaust her available administrative reme-
2153
dies prior to seeking court review. The order of
the trial court granting the Motion to Dismiss
by State of Oklahoma, ex rel. Protective Services of the State Department of Health for
failure to exhaust her administrative remedies
and dismissing her Petition for Declaratory
Judgment is AFFIRMED. Opinion by Hetherington, P.J.; Bell, C.J., and Hansen, J., concur.
108,268 — Certain Underwriters at Lloyds
London, a Foreign Insurer, Plaintiff/Appellee,
vs. B3, Inc. and NRS Consulting Engineers,
Defendants/Appellants, and The Mill Creek
Public Works Authority; John D. Sikes and
Tamara J. Sikes, Husband and Wife; Connie
Sikes, Individually and as Personal Representative of The Estate of Johnny F. Sikes; William
Brunk and Kathryn Brunk, Husband and Wife;
Phil Converse; Ava Converse; Paula Rush; The
Janice Earlene Family Revocable Trust; Shannon Shirley and Reginald Robbins, Husband
and Wife, Defendants. Appeal from the District
Court of Johnston County, Oklahoma. Honorable John H. Scaggs, Trial Judge. Appeal of the
entry of an order sustaining a Motion for Summary Judgment in favor of Plaintiff/Appellee
Certain Underwriters at Lloyds London
(Lloyds) in Lloyd’s suit for a declaratory judgment. The trial court found the Total Pollution
exclusion in an insurance policy issued by
Lloyds applied to bar coverage for the liability
and damages claimed in an underlying lawsuit
against Appellants B3, Inc. (B3) and NRS Consulting Engineers (NRS) and Defendant The
Mill Creek Public Works Authority. HELD: The
question whether an insurance policy is ambiguous is one of law. The Lloyd’s policy is not
ambiguous on its face, and it excludes coverage for the risks stated in the underlying lawsuit for damages allegedly caused by releases
or discharges from wastewater/sewage lagoons
in the course of the work performed by B3
according to NRS’s plans and specifications.
Having determined there is no coverage under
the policy, we need not address whether NRS
was a third-party beneficiary of a third party
contract and entitled to indemnification under
B3’s policy. The trial court’s order finding the
pollution exclusion applies to exclude coverage and Lloyd’s was entitled to judgment as a
matter of law is AFFIRMED. Opinion by Hetherington, P.J.; Bell, C.J., and Hansen, J., concur.
108,691 — Lawrence A.G. Johnson, Trustee,
Plaintiff/Appellee, vs. Thinkorswim, Inc.,
2154
Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Deborah C. Shallcross, Judge. Appellee, as
Trustee of the Brenneman Family Trust, brought
this action against Appellant to recover monies
from a margin/option account titled in the
name of Austin Russell Brenneman, deceased.
Appellee claimed he was entitled to the assets
in Brenneman’s individual account without
having to probate a pour-over will because
Appellee was Trustee of the Trust. The court
awarded judgment to Appellee and also granted attorney fees and costs to Appellee. On
appeal, Appellant contends the trial court erred
because Appellee did not obtain court documentation appointing him legal representative
of Brenneman’s estate, and as a securities intermediary for the deceased, it was obligated by
law to only honor a request to transfer or
redeem the financial assets by the legal representative of the estate. We conclude Appellee is
not legally authorized to direct the transfer/
redemption of this estate asset or to bring the
instant action for recovery of the asset. The trial
court erred in granting judgment to Appellee
as a matter of law, and also erred in granting
attorney fees and costs to Appellee. The trial
court’s orders are reversed and this matter is
remanded with instructions to grant defendant’s motion for summary judgment. Appellee’s request for appeal related fees is denied.
REVERSED AND REMANDED. Opinion by
Bell, C.J.; Hetherington, P.J., and Hansen, J.,
concur.
108,960 — Charles West, Personal Representative of the Estate of Angela Schreiner,
Deceased, Plaintiff/Appellee, vs. Board of
County Commissioners of Pawnee County,
Defendant/Appellant. Appeal from the District Court of Pawnee County, Oklahoma. Honorable Matthew D. Henry, Trial Judge. Appellant (County) seeks review of the trial court’s
order granting the motion for new trial of
Appellee (West) in West’s action against County for Schreiner’s wrongful death. The trial
court found the monetary value the jury placed
on the decedent’s life was unconscionable.
New trial may be granted for inadequate damages only if they appear to have been given
under the influence of passion or prejudice.
The record shows the sole item of damage on
which the plaintiff submitted evidence of valuation was the burial and funeral cost. We
reverse because the trial court applied the
wrong standard in granting the motion, and
Vol. 82 — No. 24 — 9/17/2011
the jury’s verdict is supported by the evidence.
REVERSED AND REMANDED. Opinion by
Hansen, J.; Hetherington, P.J., and Bell, C.J.,
concur.
109,189 — Deborah Rhoades, Petitioner, vs.
Homeland Stores, Inc. (own risk), and The
Workers’ Compensation Court, Respondents.
Proceeding to Review an Order of The Workers’ Compensation Court. Honorable Robert
Lake Grove, Judge. Petitioner (Claimant)
appeals the trial court’s order finding she did
not sustain an accidental personal injury arising out of and in the course of her employment
with Respondent (Employer). If Claimant was
walking to the designated smoking area to
smoke, then her injury was not causally related
to any employment duty. Whether Claimant’s
injury arose out of and in the course of her
employment was a question of fact for the trial
court. The trial court inferred from the undisputed facts that Claimant was in furtherance of
a personal mission, smoking. We find there is
competent evidence that Claimant did not sustain an accidental personal injury arising out of
and in the course of her employment. SUSTAINED. Opinion by Hansen, J.; Hetherington,
P.J., and Bell, C.J., concur.
109,262— Patricia Robertson, Individually
and as Personal Representative of the Survivors of Charles Robertson, deceased, Plaintiff/
Appellant, vs. Lone Star Transportation, LLC,
and Ron Wilson, Defendants/Appellees, and
Trail King Industries, Carlisle Companies, Inc.,
Red River Manufacturing, Inc., and Texarkana
Insurance Company, Defendants. Appeal from
the District Court of Tulsa County, Oklahoma.
Honorable Dana L. Kuehn, Trial Judge. This
accelerated appeal is brought from a trial court
order granting summary judgment in favor of
Defendant Lone Star Transportation, LLC
(Lone Star), on Robertson’s wrongful death
petition which was certified for immediate
appeal by a separate order. We conclude the
statements of undisputed fact and conclusions
of law of the trial court’s summary judgment
order adequately explain the decision on the
choice of law issue and affirm that determination. However, the trial court erred in determining Lone Star had immunity because the
applicable Colorado statute caps Lone Star’s
damage exposure at $15,000 and does not grant
tort immunity, unlike the repealed version
upon which the trial court relied. The trial
Vol. 82 — No. 24 — 9/17/2011
court’s orders filed July 14, 2010 and December
29, 2010 are AFFIRMED IN PART AND
REVERSED IN PART UNDER OKLA. SUP.CT.
R. 1.202(d). Opinion by Hetherington, P.J.; Bell,
C.J., and Hansen, J., concur.
107,561— Shanon McKee and Chance McKee,
Plaintiffs/Appellants, vs. Oklahoma New
Homes-Direct, L.L.C., Defendant/Appellee.
Appeal from the District Court of Rogers
County, Oklahoma. Honorable Robert E. Price,
Judge. Appellants (McKee) brought this small
claims action against Appellee (New Homes)
to recover McKees’ down-payment on a residential construction contract. The trial court
awarded New Homes a judgment for $2,500.00,
the amount listed as liquidated damages in the
sales contract. McKees contend the court erred
when it declined to hold New Homes’ failure
to build the home in a timely manner was a
breach of contract. The written contract is
devoid of any provision stating that time is of
the essence for New Homes’ performance or
that the parties agreed to a start and completion date for the construction of the home.
McKees have failed to show New Homes indicated any unwillingness or inability to begin its
performance under the contract. The contract
is clear and unambiguous that the parties
intended for the $2,500.00 to serve as liquidated damages in the event of McKees’ breach.
When McKees purchased a different home and
demanded the return of the $2,500.00, they
breached the contract and forfeited the down
payment as liquidated damages. The trial
court’s judgment is AFFIRMED. Opinion by
Bell, C.J.; Hetherington, P.J., and Hansen, J.,
concur.
107,899— In the Matter of the Marriage of:
Rae Ann Woodard, Petitioner/Appellant, vs.
Jason Lee Woodard, Respondent/Appellee.
Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Donald Deason, Trial Judge. Appeal by Appellant Rae Ann
Woodard of an order reducing the monthly
child support obligation of Appellee Jason Lee
Woodard. HELD: The trial court’s order is not
supported by the evidence adduced at hearing
and it is reversed. The case is remanded for
recalculation of Appellee’s child support in
light of his testimony he earned, at minimum,
$1,950 per month, rather than the $1,516.66
gross monthly income employed by the order,
the evidence demonstrating his control of
2155
roughly $1,000 of additional gross monthly
income, and his lack of evidence regarding
claimed business expenses. REVERSED AND
REMANDED. Opinion by Hetherington, P.J.;
Bell, C.J., and Hansen, J., concur.
108,601— American Farmers & Ranchers
Mutual Insurance Company, Plaintiff/Appellant, vs. Shelter Mutual Insurance Company,
Defendant/Appellee. Appeal from the District
Court of Oklahoma County, Oklahoma. Honorable Patricia G. Parrish, Trial Judge. Plaintiff/Appellant, American Farmers & Ranchers
Mutual Insurance Company (AFR), seeks
review of the trial court’s judgment in favor of
Defendant/Appellee, Shelter Mutual Insurance
Company (Shelter), based on its determination
their policies contained mutually repugnant
“other insurance” clauses and therefore their
coverages should be prorated. We hold the Oklahoma Compulsory Insurance Law (OCIL), 47
O.S.2001 §§7-600 to 7-612, does not constrain an
insurer from declaring its coverage as excess
when there is other insurance which covers its
insured’s lability with respect to a claim also
covered by its policy. A dispute between insurers
as to which provides primary coverage is a matter of contract. Accordingly, we affirm the trial
court’s judgment.AFFIRMED. Opinion by Hansen, J.; Hetherington, P.J., and Bell, C.J., concur.
109,468— Timothy Slawson and George Kellogg, Personal Representatives of the Estate of
George Wesley Kellogg, deceased, Plaintiffs/
Appellants, vs. Board of County Commissioners of Logan County, a Governmental Entity,
Defendant/Appellee. Appeal from the District
Court of Logan County, Oklahoma. Honorable
Phillip C. Corley, Trial Judge. Review of an
order following hearing granting motion to
dismiss in favor of County on Kellogg’s tort
Petition. Accelerated appeal under Okla. Sup.
Ct. R. 1.36 affirms trial court finding tort claims
notice against a political subdivision pursuant
to Title 51 O.S. Supp. 2006 § 156 (D) of the Governmental Tort Claims Act was filed with
county clerk out of time. Statutory scheme is
plain, clear and unambiguous in its meaning
and upon de novo review, case filing was time
barred. AFFIRMED. Opinion by Hetherington,
P.J.; Bell, C.J., and Hansen, J., concur.
(Division No. 2)
Wedneday, July 6, 2011
108,670 — City of Lawton, Own Risk, Petitioner, v. Michael Gene Meador and The Workers’ Compensation Court, Respondents. Appeal
2156
from an order of a three-judge panel of the
Workers’ Compensation Court, Hon. Michael J.
Harkey, Trial Judge, affirming an order of the
trial court awarding Claimant disfigurement
for surgical scars. Claimant underwent surgery
to repair a distal right biceps tendon rupture.
To repair the injury, the surgeon made two incisions - one directly over Claimant’s elbow and
one that began and ended below Claimant’s
elbow - resulting in two separate scars. The
trial court awarded Claimant permanent partial disability benefits for the injury to the right
arm and also awarded him benefits for disfigurement to his forearm. The three-judge panel
affirmed the order of the trial court. The award
for disfigurement benefits was for the scar
caused to Claimant’s forearm during the surgery to repair his arm. The disfigurement
award for the scar on the forearm or “hand”
was a separate and independent item of compensation that was not included in the permanent partial disability award for Claimant’s
“arm” injury. We thus find the disfigurement
award is allowed pursuant to the Workers’
Compensation Act. SUSTAINED. Opinion from
the Court of Civil Appeals, Division II, by
Wiseman, J.; Barnes, P.J., concurs, and Fischer,
V.C.J., dissents.
108,479— In the Matter of the Estate of H.
Dale Schimpf, Deceased. Kenneth D. Schimpf
and Tom Murry, Appellants, v. Carolee G.
Schimpf, Appellee. Appeal from Order of the
District Court of Washington County, Hon.
John M. Gerkin, Trial Judge, admitting a will to
probate. The son and stepson of Decedent
(Children) claim the will admitted to probate
was revoked by subsequent wills. The wife of
Decedent asked the trial court to probate Decedent’s will dated September 11, 1985 (1985
will). Children objected to the petition and contested the 1985 will asserting that Decedent
had revoked this will by executing a subsequent will in 1991 (1991 will). The trial court
denied Children’s objection and admitted the
1985 will to probate. We find the evidence
without contradiction establishes revocation of
the 1985 will by the terms of the 1991 will. The
whereabouts of the original 1991 will are
unknown. Absent any evidence showing that
the statutory requirements of 84 O.S.2001 §106
have been met, we conclude the 1985 will has
not been revived. The trial courts order admitting the 1985 will to probate is reversed, and
Vol. 82 — No. 24 — 9/17/2011
this case is remanded with directions to find
Decedent died intestate. REVERSED AND
REMANDED WITH DIRECTIONS. Opinion
from the court of Civil Appeals, Division II, by
Wiseman, J.; Fischer, V.C.J., and Barnes, P.J.,
concur.
108,019 — City of Lawton, Oklahoma, a
municipal corporation, Plaintiff/Appellant, v.
American Federation of State, County and
Municipal Employees, AFL-CIO, Local 3894,
Defendant/Appellee, and State of Oklahoma
ex rel. Public Employees Relations Board,
Responding Agency. Appeal from the District
Court of Comanche County, Hon. Allen McCall,
Trial Judge. Plaintiff/Appellant (the City) seeks
review of the legal conclusion of the Public
Employees Relations Board (the Board) that
the City’s retirement system is a mandatory
subject of bargaining with Defendant/Appellee (the Union). The City does not argue that
the Board reached an incorrect result. Therefore, the issue presented on appeal is abstract
and hypothetical rather than connected to a
lively case or controversy in which we can dispense present relief. When the arguments
raised “tend to show only that [the] judgment
may have been based upon wrong reasons or
an incorrect theory, without establishing that
[the lower court] reached an incorrect result or
determination, this Court may consider them
as concerning only abstract or academic questions . . . .” State of Oklahoma v. Landess, 1955 OK
148, ¶ 0, 293 P.2d 574, 574-575 (Syllabus by the
Court). “It is a long-established rule that this
court will not consume its time by deciding
‘abstract propositions of law’ or moot issues.”
State of Oklahoma ex rel. Oklahoma Firefighters
Pension and Retirement System v. City of Spencer,
2009 OK 73, ¶ 4, 237 P.3d 125, 129 (footnote
omitted). We dismiss this appeal as moot pursuant to Oklahoma Supreme Court Rule
1.6(c)(1). APPEAL DISMISSED AS MOOT.
Opinion from Court of Civil Appeals, Division
II, by Barnes, P.J.; Fischer, V.C.J., and Wiseman,
J., concur.
108,094 — John David Mullican, Petitioner/
Appellee, v. Sarah Lee Mullican, Respondent/
Appellant. Appeal from an order of the District
Court of Oklahoma County, Hon. Barry L.
Hafar, Trial Judge, denying Appellant’s application for attorney fees. The issue on appeal is
whether the trial court abused its discretion
when it denied her application. We find the
Vol. 82 — No. 24 — 9/17/2011
trial court did not abuse its discretion because
Appellant failed to support her application for
attorney fees with proper documentation.
Other than a self-serving assertion that the fee
is reasonable, there is no evidence in the record
to support Appellant’s request for $10,000 in
attorney fees. Appellant also failed to include
in the record on appeal any evidence that she is
entitled to an award of attorney fees based on
a judicial balancing of the equities. Based on
our affirmance of the trial court’s denial of
attorney fees, we also deny Appellant’s request
for appeal-related attorney fees. AFFIRMED.
Opinion from the Court of Civil Appeals, Division II, by Wiseman, J.; Fischer, V.C.J., and
Barnes, P.J., concur.
107,877 — Leon Grace and Bessie Grace,
Plaintiffs/Appellees, v. Wal-Mart Stores East,
LP, Defendant/Appellant. Appeal from an
order of the District Court of Kay County, Hon.
D.W. Boyd, Trial Judge, entering judgment
upon jury verdict on behalf of Bessie Grace.
Plaintiffs filed suit against Wal-Mart for negligence in failing to safely maintain its premises
after Bessie was injured as a result of a slip and
fall on a hanger in the ladies’ apparel department. Wal-Mart first asserts the trial court
erred by denying “Wal-Mart’s demurrer to the
evidence based on the open and obvious doctrine.” Conflicting evidence was presented on
the open and obvious versus hidden nature of
the hanger. Because reasonable minds could
differ as to whether the hanger was an open
and obvious danger, it was within the province
of the jury to decide this issue based on the
evidence before it. Wal-Mart next argued that
even if the hanger were not an open and obvious condition, the trial court still erred in submitting the case to the jury because there was
no evidence Wal-Mart knew or should have
known that the hanger was on the floor or that
Wal-Mart had created a dangerous condition.
We reject this argument because Bessie introduced evidence on which the jury could reasonably conclude that Wal-Mart knew or
should have known of the risk of the hanger
being on the floor. We further reject Wal-Mart’s
argument the trial court should have granted
its motion for mistrial because Bessie “improperly suggested to the jury that Wal-Mart had
agreed to pay her medical bills.” Wal-Mart
failed to show Bessie’s testimony should have
been excluded as falling squarely within the
parameters of 12 O.S.2001 § 2409. Furthermore,
2157
the trial court admonished the jury to disregard portions of this testimony. We conclude
the trial court neither erred nor abused its discretion in its rulings on Wal-Mart’s motions for
directed verdict, judgment notwithstanding
the verdict, mistrial, or new trial. AFFIRMED.
Barnes, P.J., concur.
107,340 — Linda Sue Edelen, Administrator
of the Estate of Dustin H. Edelen, Plaintiff/
Appellant, vs. Board of Commissioners of
Bryan County and Bill Sturch, Sheriff of Bryan
County, Defendants/Appellees. Appeal from
the District Court of Bryan County, Hon. Mark
R. Campbell, Trial Judge. Administrator appeals
the dismissal of the petition as to the Board of
County Commissioners of Bryan County and
Bryan County Sheriff Bill Sturch. The petition
sought damages for injuries Edelen received
while incarcerated in the Bryan County jail as a
result of the defendants’ alleged negligence in
maintaining the jail, and their alleged delay
and denial of medical care for Edelen’s injuries.
We find the Oklahoma Governmental Tort
Claims Act provides the defendants immunity
with respect to the negligence claim, and therefore affirm the dismissal of that theory of
recovery. However, we find allegations in the
petition sufficient to state a claim with respect
to the defendants’ alleged delay and denial of
medical care, and therefore reverse that portion
of the order appealed. AFFIRMED IN PART,
REVERSED IN PART AND REMANDED FOR
FURTHER PROCEEDINGS. Opinion from
Court of Civil Appeals, Division II by Fischer,
V.C.J.; Barnes, J., and Wiseman, J., concur.
108,303 — Hilda Harris, as Administratrix of
the Estate of Wilson Harris, Deceased, Plaintiff/Appellant, v. Elois Miles, Defendant/
Appellee. Appeal from an order of the District
Court of Choctaw County, Hon. James R.
Wolfe, Trial Judge, finding that certain funds
transferred by Wilson Harris (Harris) to his
stepdaughter, Elois Miles (Defendant) were
proper inter vivos gifts made without fraud or
undue influence. The issue on appeal is whether the trial court erred in failing to determine
that the burden of proof shifted from Plaintiff
to Defendant due to a confidential relationship
between Harris and Defendant. Having reviewed the record and applicable law, we find
the trial court did not properly allocate the bur2158
den of proof. The decision of the trial court is
therefore reversed and the case is remanded for
further proceedings consistent with this Opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the
Court of Civil Appeals, Division II, by Wiseman, J.; Fischer, V.C.J., and Barnes, P.J., concur.
108,225 — In re the Marriage of: Stacia Leann
Paul, Petitioner/Appellee, v. Troy Eugene Paul,
Respondent/Appellant. Appeal from the District Court of Garfield County, Hon. Paul K.
Woodward, Trial Judge, awarding primary
custody of the parties’ minor children to Mother, dividing the marital estate, and awarding
alimony to Mother. As to the division of the
marital estate, we find there was conflicting
testimony and evidence regarding Father’s net
worth and the value of Paul Transportation.
Father’s arguments do not convince us that the
trial court erred in dividing the parties’ marital
property. Father contends the trial court abused
its discretion by failing to award custody based
upon TLP’s expressed preference. We do not
find reversible error in the trial court’s decision
not to follow TLP’s preference when doing so
would result in dividing custody of the children between the parents, a factor which is
relevant in determining the children’s best
interests. We further find the amount of alimony awarded to Mother is not excessive as
she demonstrated a need for alimony during
the post-matrimonial economic readjustment
period. AFFIRMED. Opinion from the Court of
Civil Appeals, Division II, by Wiseman, J.;
Fischer, V.C.J., and Barnes, P.J., concur.
107,350 — The State of Oklahoma ex rel.
Craig Ladd, District Attorney, Plaintiff/Appellee, vs. $457.02 in U.S. currency, Defendant,
and Embry Jay Loftis, Appellant. Appeal from
the District Court of Carter County, Hon.
Thomas S. Walker, Trial Judge. Appellant Loftis
appeals the denial of his motion for new trial in
a forfeiture proceeding. Loftis was arrested
and charged with possession of a controlled
dangerous substance. The district attorney filed
a petition and notice of seizure and forfeiture
with respect to $457.02 that was in Loftis’ possession at the time of arrest. Lofits filed an
objection to the petition denying that the
$457.02 was subject to forfeiture. The matter
was set for trial. When Loftis failed to appear at
trial, the district attorney requested and was
granted a judgment of forfeiture by default. We
find that 63 O.S. Supp. 2010 § 2-506 required
the district attorney to present sufficient evi-
Vol. 82 — No. 24 — 9/17/2011
dence to establish that the money was subject
to forfeiture despite Loftis’ failure to appear.
Because judgment of forfeiture was entered by
default, there is no evidence in the record
showing that forfeiture was authorized by statute. Therefore, it was error to deny Loftis’
motion for new trial. The order of the district
court is reversed and the case is remanded for
further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
II by Fischer, V.C.J.; Barnes, P.J., and Wiseman,
J., concur.
108,513 — The State of Oklahoma, Plaintiff/
Appellant, v. Michael Lynn Tate, Defendant,
and Adrion Bradford, Jr. (Bondsman), Real
Party in Interest/Appellee. Appeal from an
Order of the District Court of Oklahoma County, Hon. Tammy Bass-LeSure, Trial Judge.
Appellant (State) appeals from the trial court’s
“Order Sustaining Bondsman’s Motion for
Remitter,” in which the trial court, construing
59 O.S. Supp. 2008 § 1332(D), granted Real
Party in Interest/Appellee’s (Bondsman)
Motion for Remitter; ordered the monies deposited with the Court Clerk returned to Bondsman; vacated its previous order and judgment
of forfeiture; and exonerated the bond. State’s
primary argument on appeal is that because
Bondsman failed to make his deposit on the
ninety-first day following receipt of the trial
court’s order and judgment of forfeiture, as
required by § 1332(D)(1), the trial court erred
by ordering the forfeiture proceeds returned to
Bondsman. We find, however, that a bondsman’s failure to make a timely deposit pursuant to § 1332(D)(1) does not, by itself, render
him/her ineligible to receive a return of that
deposit. Instead, as detailed in the Opinion,
§ 1332(D)(3) and subsequent provisions provide the remedy for late deposits. Based on our
review of the record and applicable law, we
affirm the trial court’s Order. AFFIRMED.
II, by Barnes, P.J.; Fischer, V.C.J., and Wiseman,
J., concur.
109,028 — Dorlene Pryor, Claimant/Petitioner, v. Great Plains Regional Medical Center
and The Workers’ Compensation Court,
Employer/Respondent. Proceeding to review
an order of The Workers’ Compensation Court,
Vol. 82 — No. 24 — 9/17/2011
Hon. Bob Lake Grove, Trial Judge. Claimant
appeals the trial court’s “Order to Vacate” and
its “Order Denying Compensability,” both filed
on November 30, 2010 (collectively, the November 30th Orders). The effect of the November
30th Orders was to replace the trial court’s
“Order Denying Temporary Total Disability
Benefits,” filed on November 2, 2010, (the First
Order) with the November 30, 2010 “Order
Denying Compensability” (the Second Order).
Claimant contends that because the Order to
Vacate and the Second Order were not entered
and sent to the parties within twenty days of
the First Order, that the First Order became
final and was improperly vacated by the trial
court. Employer contends, on the other hand,
that the Second Order merely resolved a facially apparent clerical error in the First Order and
constituted a proper nunc pro tunc correction
pursuant to Rule 57 of the Workers’ Compensation Court Rules. Upon our review of the
facts and applicable law, we agree with Employer and, therefore, we sustain the November
30th Orders. SUSTAINED. Opinion from Court
of Civil Appeals, Division II, by Barnes, P.J.;
Fischer, V.C.J., and Wiseman, J., concur.
107,898 — Wendy Stanley (now Groshong),
Plaintiff/Appellant, vs. Jeffrey Shane Stanley,
Defendant/Appellee. Appeal from order of the
District Court of Oklahoma County, Hon. Donald Deason, Trial Judge. Groshong appeals the
award of attorney fees to her former husband.
The parties were divorced in Texas and their
decree of divorce was entered in that State.
Groshong was granted the primary right of
custody of the parties’ minor children and her
residence was determined to be the children’s
primary residence. Subsequently, Groshong
moved from Texas to Oklahoma. She filed a
motion seeking to modify previously determined visitation and child support. Jeffrey
Stanley filed a motion to dismiss, arguing the
Oklahoma court lacked in personam jurisdiction
over him. The district court agreed and dismissed the case. Groshong did not appeal that
order and it is now final. Stanley is not entitled
to an award of attorney fees in this case absent
statutory authorization. Neither statute relied
on by Stanley provides that authorization.
REVERSED. Opinion from Court of Civil
Appeals, Division II by Fischer, V.C.J.; Barnes,
P.J., and Wiseman, J., concur.
2159
108,657 — QC Squared, Inc., Plaintiff/Appellant, v. WFG Investments, Inc., formerly Williams Financial Group, Defendant/Appellee,
and Frank McGuire III, Michael Leipart, and
Century Advisors, LLC, Defendants. Appeal
from Order of the District Court of Oklahoma
County, Hon. Barbara G. Swinton, Trial Judge,
granting summary judgment in favor of Defendant, WFG Investments, Inc. Plaintiff entered
into a series of contracts to finish out construction of Quick Clinic facilities. When Plaintiff
was not paid for all of the construction work it
completed, Plaintiff sued those involved in
raising funds for the Quick Clinic facilities for
fraud, constructive fraud, and breach of contract. The trial court granted the motion for
summary judgment filed by Defendant. We
reverse the trial court’s grant of summary judgment on Plaintiff’s constructive fraud and
actual fraud claims because disputed issues of
material fact remain. We affirm the trial court’s
grant of summary judgment on the breach of
contract claim because Plaintiff failed to raise
the issue in its motion to reconsider. AFFIRMED
IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
Barnes, P.J. concur.
108,803 (cons. with 108,811) — Oklahoma
Department of Mental Health & Substance
Abuse and Compsource Oklahoma, Petitioners/Counter-Respondents, v. David R. Pierce
and The Workers’ Compensation Court,
Respondent/Counter-Petitioner. Proceeding to
review an order of a three-judge panel of the
Workers’ Compensation Court, Hon. Cherri
Farrar, Trial Judge, awarding death benefits to
Claimant. The three-judge panel’s order, however, affirms an order of the trial court that had
previously been vacated. It is unclear from the
record whether the three-judge panel actually
intended to affirm the previously vacated order
or the subsequent order the trial court issued to
replace the vacated order. We therefore vacate
the order of the three-judge panel and remand
for the panel to provide this Court with an
order that either indicates why the panel
reviewed the vacated order or corrects the date
of the order reviewed to reflect that the panel
reviewed the subsequent order that replaced
the vacated order. VACATED AND REMAND2160
ED WITH DIRECTIONS. Opinion from the
Court of Civil Appeals, Division II, by Wiseman, J.; Fischer, V.C.J., and Barnes, P.J., concur.
108,097 — Gotham Insurance Company a/s/o
Tritex Real Estate Advisors, Inc., Plaintiff/
Appellee, v. Emerson Motor Company a/k/a
Emerson Electric Co., Defendant/Appellant.
Appeal from the District Court of Tulsa County, Hon. Rebecca B. Nightingale, Trial Judge.
Defendant appeals from the trial court’s order
denying its motion for judgment notwithstanding the verdict or, in the alternative, for a new
trial and from the trial court’s order denying its
motion for attorney fees. Emerson challenges
the sufficiency of the evidence to support the
jury’s verdict and also asserts it is a “prevailing
party” entitled to an award of attorney fees.
Based upon our review of the record on appeal
and pertinent law, we find the record contains
competent evidence to support the jury’s verdict and that Emerson is not a “prevailing
party” as a matter of law. AFFIRMED. Opinion
from Court of Civil Appeals, Division II, by
Barnes, P.J.; Fischer, V.C.J., and Wiseman, J.,
concur.
108,314 — Mike Anderson, Plaintiff/Appellant, v. Access Medical Centers; Derrick Freeman, D.O.; Lenard “Lenny” Phillips, D.O.; and
Bruce Cornett, D.O., Defendants/Appellees.
Appeal from an order of the District Court of
Oklahoma County, Hon. Twyla Mason Gray,
Trial Judge, denying a motion to vacate. The
issues raised in this appeal include whether
Attorneys have standing to appeal independent of Plaintiff, whether they had standing to
file a motion to vacate without Plaintiff’s consent, and whether grounds exist pursuant to 12
O.S.2001 §§ 1031 and 1038 to vacate the trial
court’s order dismissing the lawsuit without
prejudice. We find Attorneys fail to meet the
first requirement of standing, that of a legally
protected interest, and therefore lack standing
to bring this appeal. Because Attorneys lack
standing, this Court has no jurisdiction to consider the merits of this appeal. Based on the
foregoing, we will not address whether Attorneys had standing in the trial court to file a
motion to vacate without Plaintiff’s consent,
nor will we consider whether grounds exist to
vacate the trial court’s order dismissing the
case without prejudice. DISMISSED. Opinion
Vol. 82 — No. 24 — 9/17/2011
from the Court of Civil Appeals, Division II, by
Wiseman, J.; Fischer, V.C.J., and Barnes, P.J.,
concur.
109,149 — Jaymie M. Thomsen, Mother and
Next Friend of H.R.T., a minor, and G.R.T. a
minor, Plaintiff/Appellee, vs. Eric R. Thomsen
and Frank R. Thomsen, Defendants/Appellants. Appeal from Order of the District Court
of Oklahoma County, Hon. Barbara Swinton,
Trial Judge. The district court granted Plaintiff’s motion for summary judgment, removing
Defendants as custodians of Children’s accounts, and awarding Plaintiff attorney fees
and costs. The district court erred in granting
Plaintiff’s motion for summary judgment on
grounds that Eric and Frank Thomsen violated
the Oklahoma Uniform Transfers to Minors
Act. See 58 O.S.2001 §§ 1201-1225. Its orders
entering summary judgment against Defendants, and its other orders flowing therefrom
are vacated. This matter is remanded with
instructions to enter an order reinstating Defendants as custodian, and successor custodian of
the funds at issue for Children’s benefit in
accordance with the OUTMA, and without
prejudice to the rights of interested parties to
assure the accounts are administered in accordance with the OUTMA, and to make such
additional orders as are consistent with and
necessary to carry this ruling into effect.
VACATED AND REMANDED WITH INSTRUCTIONS. Opinion from Court of Civil
Appeals, Division II by Fischer, V.C.J.; Barnes,
P.J., and Wiseman, J., concur.
107,676 — Northwest Roofing Supply, Inc.,
an Oklahoma corporation, Plaintiff/Appellee,
vs. Elegance in Wood, LLC; Elton Rhoades, Jr.
and Malissa M. Rhoades, Husband and Wife;
and Kevin Jones, Defendants/Appellants.
Appeal from Order of the District Court of
Oklahoma County, Hon. Bryan C. Dixon, Trial
Judge. The judgment in this case was obtained
to enforce a materialmen’s lien. However, prelien notice was not provided to the Rhoadeses
as required by law. Within two years of the
judgment, the Rhoadeses filed a petition to
vacate that judgment pursuant to 12 O.S.2001 §
1031(4), arguing that the judgment was obtained
by fraud. Northwest did not comply with the
notice requirements of 42 O.S.2001 § 142.1.
Therefore, the record does not show that Northwest was entitled to foreclose its lien, and secVol. 82 — No. 24 — 9/17/2011
tion 1031(4) authorized the vacation of the
Northwest judgment on grounds of intrinsic
fraud. REVERSED AND REMANDED WITH
DIRECTIONS. Opinion from Court of Civil
Appeals Division II by Fischer, V.C.J.; Barnes,
P.J. and Wiseman, J., concur.
Friday, August 5, 2011
108,359 — Paula L. Monsey/Kershaw, Plaintiff/Appellant, vs. Save Mor Home Improvement, LLC; Oklahoma Employment Security
Commission and The Board of Review of the
Oklahoma Employment Security Commission,
Defendants/Appellees. Appeal from Order of
the District Court of Oklahoma County, Hon.
Twyla Mason Gray Trial Judge, affirming the
denial of unemployment benefits by the
Employment Security Commission. In this
appeal, the findings of the Commission are
binding on this Court if supported by the evidence. The finding that Kershaw engaged in
misconduct justifying her termination is supported by the evidence. Therefore, Kershaw is
disqualified from receiving unemployment
benefits. See 40 O.S.2001 § s-406. AFFIRMED.
II by Fischer, V.C.J.; Barnes, P.J., and Wiseman,
J., concur.
107,755 — James A. Dodson and George
Dowdey, Plaintiffs/Appellees, vs. Thomas
Merritt and Judy B. Sikes/Merritt, Defendants/
Appellants. Appeal from Order of the District
Court of Atoka County, Hon. D. Clay Mowdy
Trial Judge, granting James A. Dodson and
George Dowdey an easement by necessity over a
portion of the Merritts’ property. Dodson and
Dowdey did not proceed pursuant to 27 O.S.2001
§ 6 to establish a private way of necessity. They
relied on the common law to establish an easement by implication. That remedy requires
proof of common ownership. Thomas v. Morgan, 1925 OK 494, ¶ 14, 240 P. 735, 736-37 (finding of fact that the disputed property is a way
of necessity without a finding that the land
owned by plaintiffs and that owned by defendants was at some time owned by the same
person is insufficient to sustain an easement
by implication). Dodson and Dowdey’s failure
to prove the existence of a prior common
owner of both their property and the Merritts’
property is fatal to their claim for a common
law easement by implication. REVERSED IN
PART. Opinion from Court of Civil Appeals,
Division II by Fischer, V.C.J.; Barnes, P.J., and
Wiseman, J., concur.
2161
(Division No. 3)
Thursday, June 23, 2011
man, P.J., and Barnes, J., (sitting by designation), concur.
107,359 — Jacqueline Michelle Ghazal, Plaintiff/Appellant, v. Mazin Kamel Ghazal, Defendeant/Appellee. Appeal from the District
Court of Osage County, Hon. M. John Kane,
Trial Judge. Jacqueline Michelle Ghazal (Wife)
appeals the trial court’s August 24, 2009, decree
of divorce entered following the death of her
husband, Mazin Kamel Ghazal (Husband).
Based upon our review of the facts and applicable law, we affirm the trial court’s determination that the parties’ divorce action did not
abate upon Husband’s death. However, we
find the trial court was without authority to
subsequently file the August 24, 2009, final
decree of divorce. The decree is therefore vacated. AFFIRMED IN PART AND VACATED IN
PART. Opinion from Court of Civil Appeals,
Division IV, by Goodman, P.J.; Rapp, J., and
Barnes, J. (sitting by designation), concur.
Monday, June 27, 2011
Friday, June 24, 2011
108,978 — Terrance Britt, Plaintiff/Appellant, v. Promise Redeemer, L.L.C. d/b/a
Edwards Redeemer Nursing Center, Defendant/Appellee. Appeal from Order of the District Court of Oklahoma County, Hon. Noma D.
Gurich, Trial Judge, granting summary judgment in favor of Defendant in an action based on
a nursing home’s alleged disclosure of Plaintiff’s
medical condition in violation of Oklahoma’s
Nursing Home Care Act, 63 O.S.2001 & Supp.
2010 §§ 1-1900.1, et seq. It is not disputed that
Plaintiff filed the claim more than two, but less
than three, years after his cause of action accrued.
He argues his action is governed by the threeyear limitations period set forth in 12 O.S.
Supp. 2010 § 95(A)(2) applicable to liabilities
“created by a statute other than a forfeiture or
penalty.” Title 76 O.S. Supp. 2010 § 18 imposes
a two-year statute of limitations for claims
against a “health care provider” for issues arising out of patient care, whether the action is
“based in tort, breach of contract or otherwise.”
Plaintiff’s complaint about a breach of his privacy, or confidentiality, goes straight to an
issue of “patient care.” Section 18 therefore
applies to bar Plaintiff’s claim for breach of the
duty of confidentiality imposed by the Nursing
Home Care Act, and the trial court’s entry of
summary judgment in favor of Defendant was
correct. AFFIRMED. Opinion from Court of
Civil Appeals, Division IV, by Rapp, J.; Good2162
109,171 — City of Stillwater, Oklahoma,
Plaintiff/Appellee, v. International Association
of Firefighters, Local 2095, Defendant/Appellant. Appeal from an order of the District Court
of Payne County, Hon. Stephen Kistler, Trial
Judge. The trial court plaintiff, International
Association of Firefighters, Local 2095 (IAFL),
appeals a judgment which granted summary
judgment to the Defendant, The City of Stillwater, Oklahoma (City). The City is an Oklahoma municipal corporation. The IAFL is a
labor union representing firefighters employed
by the City. The City and IAFL have a collective
bargaining agreement (CBA). The City decided
to discontinue some ambulance services. Firefighters were used for the services. The City’s
decision prompted a grievance on their behalf
that was filed by IAFL. Firefighters claimed
that, under the CBA, the City is required to
arbitrate its decision to discontinue the ambulance services. Stillwater claims that it did not
agree to arbitration regarding this type of decision and that it is a management prerogative
under the CBA. This Court holds that the
City’s decision to terminate some ambulance
services is a management prerogative and not
subject to arbitration under the CBA. This
Court further holds that the grievance procedures contained in the CBA do not include
provision to arbitrate the decision to terminate
some ambulance services. Disputes referenced
in the grievance procedure as being subject to
arbitration concern only terms and conditions
of employment as those are provided in the
CBA. The decision to terminate some ambulance services is not a term or condition of
employment in general or under the provisions
of the CBA. Therefore, the judgment of the trial
court is affirmed. AFFIRMED. Opinion from
Court of Civil Appeals, Division IV, by Rapp, J.;
Goodman, P.J., and Barnes, J. (sitting by designation), concur.
Tuesday, June 28, 2011
107,273 — In Re The Marriage Of: Rebecca
Diane Laywell, Petitioner/Appellee, v. Ronald
Alan Laywell, Respondent/Appellant. Appeal
from an order of the District Court of Tulsa
County, Hon. Kyle B. Haskins, Trial Judge,
denying Appellant’s motion to vacate a default
decree of divorce. The evidence indicates
Appellant did not receive timely notice of the
Vol. 82 — No. 24 — 9/17/2011
event that was the genesis of the default
divorce decree — the filing of Appellee’s discovery requests to which Appellant did not
respond. Though failure to respond can be
used as a basis for a default judgment, the 30day period for responses found in 12 O.S.2001
§ 3236 is subject to the particular facts of any
case, as the statute itself acknowledges.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of
Civil Appeals, Division IV, by Rapp, J.; Goodman, P.J., and Barnes, J. (sitting by designation), concur.
Wednesday, June 29, 2011
108,968 — City of Midwest City, Petitioner, v.
Debbie Chamberlain and The Workers’ Compensation Court, Respondents. Proceeding to
Review an Order of a Three-Judge Panel of The
Workers’ Compensation Court, Hon. Cherri
Farrar, Trial Judge, finding Claimant sustained
an injury arising out of and in the course of her
employment with Employer and awarding her
permanent disability benefits. The sole determination for this Court is whether the workers’
compensation court’s order is supported by
competent evidence. Here, the workers’ compensation court considered Claimant’s testimony and the medical evidence in finding
Claimant sustained a work-related injury and
awarding permanent disability benefits. This
Court finds there is competent evidence to support the decision of the three-judge panel. SUSTAINED. Opinion from Court of Civil Appeals,
Division IV, by Rapp, J.; Goodman, P.J., and
109,212 — The City of Oklahoma City, Plaintiff/Appellant, v. Dora Diane Phillips, Defendant/Appellee. Appeal from the District Court
of Oklahoma County, Hon. Geary Walke, Trial
Judge. Plaintiff, The City of Oklahoma City
(City), appeals a judgment dismissing its petition for damages against the defendant, Dora
Diane Phillips, on the ground that the cause is
barred by the Statute of Limitations. After
reviewing the appellate record and applicable
law, this Court finds City is immune from the
application of the statute of limitations in this
action. The judgment of the trial court is
reversed and the cause remanded for further
proceedings. REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS. Opinion from
the Court of Civil Appeals, Division IV, by
Rapp, J.; Goodman, P.J., and Barnes, J. (sitting
by designation), concur.
Vol. 82 — No. 24 — 9/17/2011
106,605 — In re the Marriage of Annie M. Sallis, Petitioner/Appellee, v. Charles B. Sallis,
Respondent/Appellant. Appeal from the District Court of Oklahoma County, Hon. Allen J.
Welch, Trial Judge. Respondent, Charles B. Sallis, Jr. (Husband) appeals the trial court’s Decree
of Divorce and Dissolution of Marriage. Husband contends the trial court erred in failing to
award him restitution alimony; in finding he
dissipated marital assets and awarding Wife
one-half of those funds; and in awarding Wife
a divorce on grounds of adultery. This Court
finds no error and affirms. AFFIRMED. Opinion from the Court of Civil Appeals, Division
IV, by Rapp, J.; Goodman, P.J., and Barnes, J.
(sitting by designation), concur.
108,968 — Patricia Bowers Edwards, Individually and as Natural Mother and Next
Friend of Robert Drew Bowers, an Incapacitated Person, Plaintiff/Appellant, v. BancFirst, a
National Banking Association, Defendant/
Appellee, and Rex Urice, an individual; The
Robert S. Bowers and Eloise C. Bowers Foundation, a private foundation; John C. Duty, an
individual; Michael A. Bickford, an individual;
and Personal Nursing Care, Inc., an Oklahoma
Corporation, Defendants. Appeal from an
order of the District Court of Oklahoma County, Hon. Patricia G. Parrish, Trial Judge. The
plaintiff, Patricia Bowers Edwards (Edwards),
Individually and as natural mother and next
friend of Robert Drew Edwards, an incapacitated person, appeals a Trial Court Order
granting partial summary judgment to the
defendant, BancFirst (Bank). The case now
under review involves a claim by Edwards that
BancFirst, as trustee, negligently failed to pay
the estate taxes, under a procedure which
would allow a refund if BancFirst prevailed in
the Foundation litigation, but which would
stop the accrual of interest. The trial court did
not err by its ruling that Edwards’ claim against
Bank for the interest that accrued on unpaid
Federal estate taxes was barred by the Statute of
Limitations. Even though she could not bring
the action until Bank of Oklahoma relinquished
the claim to her, the two-year time period began
when Bank of Oklahoma became Trustee of the
Bowers Trust. If Edwards’ position were sustained then the result would be to add the period
of limitations applicable to Edwards to that
applicable to Bank of Oklahoma. If one limitation can be added to another without limit, it
would create an intolerable rule and promote a
2163
never ending right of action. Therefore, the judgment is affirmed. AFFIRMED. Opinion from
Court of Civil Appeals, Division IV, by Rapp, J.;
105,514 — First Fidelity Bank N.A., Plaintiff/
Appellant, vs. Vonzell Soloman, Defendant/
Appellee. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable
Noma Gurich, Judge. Plaintiff/Appellant, First
Fidelity Bank N.A. (First Fidelity) seeks review
of the trial court’s order denying its motion to
reconsider the granting of a default judgment
in favor of Defendant/Appellee, Vonzell Soloman. Appellant alleges the trial court erred by
refusing to vacate the default judgment. Appellant claims its file stamped copy of the pretrial
order stated trial was set to begin April 17, 2007
and Appellant appeared for trial on that date,
one day late. The copy of the pretrial order
filed in the court clerk’s office stated trial was
set for April 16, 2007. Appellee was present and
ready to proceed on the sixteenth when the
trial docket was called. Appellant also alleges
the trial court granted additional relief to
Appellee that varied from that requested by
Appellee at the time of pretrial. Having
reviewed the record, we find the completely
unexplained date discrepancies of the trial date
information found in the varying pretrial
orders requires vacation of the default judgment and the trial court abused its discretion
not doing so. This court reviews an order
vacating or refusing to vacate a default judgment by the abuse of discretion standard. Ferguson Enter., Inc. v. H. Webb Enter., Inc., 2000 OK
78, 13 P.3d 480, 482. This appeal proceeds on
Appellant’s brief only. Appellant’s first proposition of error claims the default judgment
should have been vacated, because it meets the
circumstances for vacating a judgment under
12 O.S. 2001 §1031(1), (3), (7) and (9). The pretrial order error compounded the breakdowns
in office procedure that followed. Under similar office procedural breakdowns the appellate
courts have determined the gravity of the mistake did not warrant depriving the parties of
their day in court, especially in light of the fact
default judgments are not favored, no unfair
surprise would have resulted in this case and
Appellant did not delay in requesting relief
from the default. American Bank of Commerce v.
Chavis, 1982 OK 66, 651 P.2d 1321, 1324. Appel2164
lant’s second proposition of error claims Appellee was granted relief she did not seek at the
pretrial stage. The relief she requested was consistent with that sought at pretrial and identical to that which she sought in her answer to
the original petition. We find no merit in the
second proposition of error. The trial court’s
denial of First Fidelity’s motion to reconsider
the granting of the default judgment to Vonzell
Soloman is REVERSED AND THIS CAUSE
REMANDED FOR FURTHER PROCEEDINGS.
Opinion by Joplin, J.; Mitchell, P.J., and Buettner,
J., concur.
107,831 — In the Matter of the Guardianship
of Janet Maureen Carlton, an incapacitated
person. Brenda C. Bruton, in her capacity as
guardian of Janet Maureen Carlton, Petitioner/
Appellee/Counter-Appellant, vs. Newton,
O’Connor, Turner & Ketchum, P.C., an Oklahoma Professional Corporation, Respondent/
Appellant/Counter-Appellee. Appeal from the
District Court of Tulsa County, Oklahoma.
Honorable Kyle B. Haskins, Judge. Petitioner/
Appellee/Counter-Appellant Brenda C. Bruton, in her capacity as guardian of Janet Maureen Carlton, and Respondent/Appellant/
Counter-Appellee Newton, O’Connor, Turner
and Ketchum, P.C. (“Law Firm”) each appeal
provisions of the trial court’s decision allowing
Law Firm to keep part of the fees paid to it by
Sharon Adams, attorney in fact for Carlton
(Decedent), on Decedent’s behalf before Bruton was appointed as her guardian, and ordering Law Firm to disgorge part of the fees paid.
We AFFIRM. Opinion by Buettner, J.; Mitchell,
P.J., and Joplin, J., concur.
108,371 — Connie Weigert, Plaintiff/Appellant, vs. Dollar General Corporation, Defendant/Appellee. Appeal from the District Court
of Pottawatomie County, Oklahoma. Honorable
Douglas L. Combs, Judge. In this premises liability action, Appellant (Wiegert) appeals from an
order granting summary judgment to Appellee
(Dollar General). The parties do not dispute
Wiegert slipped and fell on a wet floor and that
Dollar General was aware of the water spill
prior to Wiegert’s fall. Dollar General contends
the spill was caused by a customer dropping a
bottle of water and it did not have sufficient
time to clean up the spill before Wiegert came
into the building. It also contends it had no
duty to warn because the water was an open
and obvious condition on the floor. Viewing
the facts and all reasonable inferences in a light
most favorable to Wiegert, we find summary
Vol. 82 — No. 24 — 9/17/2011
judgment was improperly granted. On the
record before us, we cannot say as a matter of
law that thirty seconds was not enough time to
clean up the water. From the video evidence a
jury might conclude there was sufficient time
to at least begin cleaning up the spilled water
before Wiegert slipped and fell. Accordingly,
the order of the trial court granting summary
judgment in favor of Dollar General is REVERSED and this case is REMANDED for further proceedings. Opinion by Mitchell, P.J.;
Joplin, J., concurs; Buettner, J., dissents.
107,872 — Michael Root and Erin Root, as Parents and Next Friend of Cody Root, a minor,
Plaintiffs/Appelants, vs. SDI of Owasso, d/b/a
Sonic, Defendant/Appellee. Appeal from the
District Court of Tulsa County, Oklahoma.
Honorable Jefferson D. Sellers, Judge. Plaintiffs
(Roots) seek review of the trial court’s order
dismissing the case without prejudice upon its
grant of Defendant’s (Sonic) Motion to Dismiss
for Roots’ failure to comply with the trial
court’s order requiring them to submit to deposition pursuant to 12 O.S. §3237(E)(1). Roots
also appeal the court’s award of attorney fees
and costs to Sonic in the amount of $1,700,
which were granted as a discovery sanction.
Because the real party in interest in an appeal
from a trial court’s order imposing sanctions
against counsel directly is counsel himself (and
not the party he represents in the underlying
action), the omission of the designation of
Appellant’s counsel as a party in appellate
pleadings constitutes a fatal jurisdictional
defect. Because we are without jurisdiction to
review the allegations of error pertaining to
sanctions imposed directly against counsel
Mark Stanley, we refrain from review of the
court’s fee award. Consideration of the factors
applicable to the imposition of sanctions supports the trial court’s decision to dismiss this
case without prejudice. The record reflects
Roots repeatedly ignored requests to schedule
the depositions and intentional noncompliance
with the court order, which supports a finding
of willfulness and/or fault on the part of Roots.
Their refusal to appear for depositions significantly impeded Sonic’s ability to defend itself
in the case, as the Roots are presumably the
most critical witnesses to the circumstances of
the accident and primary source of the facts
giving rise to their allegations of negligence.
We find no abuse of discretion in the trial
court’s dismissal of the matter pursuant to 12
Vol. 82 — No. 24 — 9/17/2011
O.S. §3237. AFFIRMED. Opinion by Mitchell,
P.J.; Joplin, J., and Buettner, J., concur
108,861 — United Parcel Service, Inc. and
Liberty Mutual Insurance Co., Petitioners, vs.
Harold Dickerson 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 ThreeJudge Panel of the Workers’ Compensation
Court (Panel) which affirmed in part and
modified in part the decision of the trial court
concerning the cumulative trauma claim of
Respondent (Claimant). Careful review of
paragraph one of the Panel’s order as compared with its pre-modified version contained
in the trial court’s order reveals ambiguity and
confusion as to the Panel’s intent regarding the
major cause determination, which is fatal to our
consideration of same on appeal. Without the
benefit of understanding what the Panel’s decision was on the issue of whether Claimant’s
employment activities were the major cause of
the right knee injury, we are unable to evaluate
the correctness of that decision and/or the other
findings of appeal. The Panel’s order of October
11, 2010 is VACATED AND REMANDED for
further proceedings. Opinion by Mitchell, P.J.;
Joplin, J., and Buettner, J., concur.
(Division No. 4)
109,344 — Yellow Book Sales and Distribution Co., Inc., a corporation, Plaintiff/Appellee, v. L. Justin Lowe, Defendant/Appellant.
Oklahoma County, Hon. Daniel L. Owens,
Trial Judge, granting summary judgment in
favor of Yellow Book Sales and Distribution
Co., Inc. (Publisher). Based on our review of
the record and applicable law, we find the trial
court correctly granted Publisher’s motion for
summary judgment and affirm. AFFIRMED.
Opinion from the Court of Civil Appeals, Division IV, by Goodman, P.J.; Rapp, J., and Barnes,
J. (sitting by designation), concur.
108,302 — Tracy Cravey, Plaintiff/Appellee,
v. Emil Spadone, Redfield Farms, Defendant/
Appellant. Appeal from the District Court of
LeFlore County, Hon. Jonathan K. Sullivan,
Trial Judge. Emil Spadone, Redfield Farms
(Spadone) appeals the small claims court’s
journal entry of judgment in favor of Tracy
2165
Cravey. The issues on appeal are whether Spadone and Cravey entered into a contract for the
sale of a horse and whether Spadone, a nonresident, was subject to the personal jurisdiction of the court. Upon reviewing the record on
appeal, we find the trial court did not err when
it found Spadone breached a contractual obligation to Cravey. There is competent evidence
to support this finding, and it is consistent with
the appellate record. Further, the court’s exercise of personal jurisdiction over Spadone was
proper under the facts presented. For these
reasons, we affirm. AFFIRMED. Opinion from
Goodman, P.J.; Rapp, J., and Barnes, J. (sitting
108,720 — Greg G. Woods, Petitioner/Appellee, v. Ronnie Nevitt, Defendant/Appellant.
Appeal from the District Court of Muskogee
County, Hon. A. Carl Robinson, Trial Judge.
Defendant Ronnie Nevitt appeals the trial
court’s protective order entered against him.
The order required Nevitt to stay away from an
auto dealership, Lake Country Chevrolet Cadillac, and Greg Woods, and remove signs from
his vehicles stating he had been “ripped off” by
the dealership. The Protection from Domestic
Abuse Act under which Woods filed his petition provides relief for those in a family or dating relationship from harassment, or relief
from stalking by an unrelated person. The relationship between the parties in the instant case
is that of a business employee and a customer,
and we find no proof of stalking in the record.
The evidence indicates Nevitt may have been a
nuisance to customers and employees, and may
have trespassed, for which another remedy is
available, but the evidence does not indicate his
conduct fits the statute’s definition of stalking.
The trial court’s grant of the protection order
must therefore be reversed. REVERSED. Opinion from the Court of Civil Appeals, Division IV,
by Goodman, P.J.; Rapp, J., and Barnes, J. (sitting by designation), concur.
109,048 — VF Jeanswear LP and VF Corp
Own Risk #16673, Petitioners/Appellants, v.
Melinda Beel and The Workers’ Compensation
Court, Respondents/Appellees. Proceeding to
review an order of a three-judge panel of The
Workers’ Compensation Court, Hon. Bob Lake
Grove, Trial Judge. Employer seeks review of a
three-judge panel’s order granting Claimant
Melinda Beel benefits. We review the order
using the any-competent-evidence standard of
review. The panel’s award is within the range
2166
of evidence and is supported by competent
evidence, and is thus sustained. SUSTAINED.
P.J. (sitting by designation), concur.
109,0205 — Guaranteed Auto Credit & Auto
Finance Inc. and Westport Insurance Corp
(New) (FKA ERC), Petitioners/Appellants, v.
Terence Lee Jackson and The Workers’ Compensation Court, Respondents/Appellees. Proceeding to review an order of The Workers’
Compensation Court, Hon. John Michael
McCormick, Trial Judge. Employer seeks
review of a trial court’s order requiring Claimant Terence Lee Jackson to submit to a medical
examination by an Independent Medical Examiner (IME) at Employer’s expense. The order
appealed is not a reviewable order. It is clearly
interlocutory. It does not deny an award nor
does it constitute a final determination of the
rights of the parties. The appeal is premature
and is dismissed. DISMISSED. Opinion from
Goodman, P.J.; Rapp, J., and Barnes, J. (sitting
107,900 — George E. Thomas, Plaintiff/
Appellant, v. Christina M. Thomas, Defendant/Appellee. Appeal from an order of the
district court of Oklahoma County, Hon. Allen
Welch, Trial Judge, awarding Defendant (Wife)
$7,375.74, which the court found Plaintiff (Husband) owed under the terms of the parties’
divorce decree’s division of Husband’s retirement benefits. The divorce decree provided
that Wife would receive ten percent of Husband’s net monthly payment. The trial court
found that Wife’s share included ten percent of
any increase in benefits. We hold the trial court
did not modify the decree, but simply enforced
it. We remand, however, to correct the computation of the amount of arrearage. AFFIRMED
IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS. Opinion
from the Court of Civil Appeals, Division IV,
by Rapp, J.; Goodman, P.J., and Barnes, J. (sitting by designation), concur.
108,797 — Joseph W. Hendricks, Plaintiff/
Appellant, v. Justin Jones ex rel. State of Oklahoma ex rel. Oklahoma Department of Corrections, Defendants/Appellees. Plaintiff Joseph
Walton Hendricks appeals the trial court’s
Vol. 82 — No. 24 — 9/17/2011
order granting summary judgment to Defendant Oklahoma Department of Corrections
(ODOC). Plaintiff filed a petition seeking to
enjoin ODOC from enforcing the requirements
of the Oklahoma Sex Offender Registry Act
(OSORA) against him. The trial court held a
hearing addressing constitutional issues raised
by both parties, found OSORA was constitutional, and granted ODOC’s motion, denying
Plaintiff’s request for an injunction. Summary
judgment was correct as to the application of
OSORA to this Plaintiff. However, Plaintiff’s
arguments regarding the retroactive application of subsequent OSORA provisions enacted
after he first became subject to its provisions
are remanded to the trial court for further proceedings consistent with this court’s opinion in
Reimers v. Department of Corrections, 2011 OK
CIV APP ___, ___ P.3d. ___, issued February 14,
2011. The trial court’s order is affirmed in part,
reversed in part, and the matter remanded for
further proceedings. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
108,963 — Kathleen Minyard, Plaintiff/
Appellee, v. State of Oklahoma ex rel. Oklahoma Department of Corrections, Defendant/
Appellant. Appeal from the District Court of
Oklahoma County, Hon. Noma D. Gurich, Trial
Judge. Defendant Oklahoma Department of
Corrections appeals the trial court’s order
granting Plaintiff Kathleen Minyard’s motion
for summary judgment which required her name
be stricken from the Oklahoma Sex Offender
Registry and ordered her not to register as a sex
offender. Plaintiff filed a motion to dismiss the
appeal. We deny Plaintiff’s motion to dismiss
the appeal. Based upon our review of the facts
and applicable law, we reverse the decision of
the trial court. REVERSED AND REMANDED.
108,819 — Michael Bollin, Plaintiff/Appellee, v. Justin Jones ex rel. State of Oklahoma ex
rel. Oklahoma Department of Corrections,
Defendants/Appellants. Appeal from the District Court of Oklahoma County, Hon. Bryan C.
Dixon, Trial Judge. Defendant Oklahoma
Department of Corrections appeals the trial
court’s order granting Plaintiff Michael Bollin’s
requested injunction against ODOC’s attempts
to compel him to register as a sex offender.
Vol. 82 — No. 24 — 9/17/2011
Based upon our review of the facts and applicable law, we reverse and remand for further
proceedings. REVERSED AND REMANDED.
108,148 — First Liberty Bank, Plaintiff/
Appellee, v. Allan Arnold, Defendant, and
Robert Brown, Trustee and Interested Party,
and Leonard Wesley Arnold and Jane Harness,
Co-Personal Representatives/Appellants. Appeal from an order of the District Court of
Oklahoma County, Hon. Noma D. Gurich, Trial
Judge. This appeal was originally filed by the
defendant, Allan Arnold (Arnold), from an
Order Determining Exempt Asset And Continuing Deadline For Return of Writ entered in
an action brought by the plaintiff, First Liberty
Bank (Bank). During the course of this appeal,
Arnold filed for bankruptcy and the automatic
stay has been lifted. The Bankruptcy Trustee,
Robert Brown, became an interested party and
appears here in that capacity opposing the
appeal. Arnold then died and his co-personal
representatives, Leonard Wesley Arnold and
Jane Harness substituted as appellants. Appellants claim that personal property seized by
Bank in execution is exempt under 31 O.S.Supp.
2010, § 1(A)(3). The property in question was
used for parties, decoration and personal enjoyment. The trial court’s interpretation of the
statute and its finding that the property was
not reasonably necessary for household or
family use is not contrary to the law or evidence. Therefore, the judgment denying the
exemption is affirmed. Opinion from the Court
of Civil Appeals, Division IV, by Rapp, J.;
108,495 — Loyd Adams doing business as
Loyd’s of Kern Painting, Plaintiff/Appellant, v.
City of Tulsa, a municipal corporation; Tulsa
Metropolitan Utility Authority, a public trust;
and, Albert Martinez, Defendants/Appellees.
Tulsa County, Hon. P. Thomas Thornbrugh,
Trial Judge. The trial court plaintiff, Loyd
Adams, d/b/a Loyd’s of Kern Painting
(Adams), appeals an Order denying his motion
to reconsider an Order dismissing his petition
to modify or vacate a prior judgment of dismissal, affirmed on appeal, entered in action
2167
against the defendants, City of Tulsa, Tulsa
Metropolitan Utility and Albert Martinez. This
action was previously before this Court in Loyd
Adams, d/b/a Loyd’s of Kern Painting v. City of
Tulsa, Tulsa Metropolitan Utility and Albert Martinez, Appeal 106,485 (Adams I). All Defendants
moved to dismiss the petition to modify or
vacate. The trial court sustained the motion to
dismiss. The only proposition asserted in the
motion is that the “settled-law-of-the-case doctrine does not apply to petitions to vacate.”
Settled-law-of-the-case doctrine precludes further consideration. The trial court did not err
by denying Adams’ motion to reconsider or by
denying the petition to modify or vacate the
judgment affirmed in Adams I. The Appellees
applied for attorney fees and costs as a sanction against Adams’ counsel. This Court cannot find that Adams’ appeal falls within the
scope of a frivolous appeal. In addition, the
Federal law provided by Apppellees does not
serve to authorize this Court to sanction an
attorney. Therefore, Appellees’ request for
attorneys’ fees and costs is denied. AFFIRMED.
IV, by Rapp, J.; Goodman, P.J., and Barnes, J.
(sitting by designation), concur.
Tuesday, August 2, 2011
107,424 — Barbara Chappelle, Special Administrator for the Estate of Victor Chappelle, Plaintiff/Appellant, v. Jonathan C. Schnitker, M.D.
and Tulsa Radiology Associates, Inc., Defendants/Appellees. Plaintiff appeals the trial
court’s order denying her motion for new trial
after judgment on a jury verdict in favor of
Defendants Jonathan C. Schnitker, M.D. and
Tulsa Radiology Associates, Inc. Based upon our
review of the facts and applicable law, we affirm.
AFFIRMED. Opinion from the Court of Civil
Appeals, Division IV, by Goodman, P.J.; Rapp, J.,
concurs in part and dissents in part; Barnes, J.
(sitting by designation), concurs.
109,050 — Janet Elaine Ronning, Petitioner, v.
Oklahoma Blood Institute, Compsource Oklahoma and The Workers’ Compensation Court,
Respondents. Proceeding to Review an Order of
The Workers’ Compensation Court, Hon. Kent
C. Eldridge, Trial Judge, finding Claimant did
not sustain a change of condition for the worse
to her left shoulder in this workers’ compensation action. The question presented for this
Court is whether the workers’ compensation
court’s decision is supported by competent
2168
evidence. The parties presented conflicting evidence concerning whether Claimant sustained
a change of condition for the worse to her left
shoulder. Although there may be evidence
supporting the appealing party’s claim, this
Court is confined on review to a search for any
competent evidence which could support the
order of the workers’ compensation court. This
Court finds the Order Denying Change of Condition for the Worse is supported by competent
evidence. SUSTAINED. Opinion from Court of
Civil Appeals, Division IV, by Rapp, J.; Goodman, P.J., and Barnes, J. (sitting by designation), concur.
108,753 — Melissa I. Hill, Petitioner, v. American Airlines and The Workers’ Compensation
Court, Respondents. Proceeding to Review an
Order of a Three-Judge Panel of The Workers’
Compensation Court, Hon. Mary A. Black, Trial
Judge. Claimant alleges that the Order on Appeal
is not supported by competent evidence.
Although there may be evidence supporting the
appealing party’s claim, this Court is confined
on review to a search for any competent evidence to support the workers’ compensation
court’s decision. A review of the evidence establishes there is competent evidence to support the
three-judge panel’s Order on Appeal. SUSTAINED. Opinion from Court of Civil Appeals,
Division IV, by Rapp, J.; Goodman, P.J., and
ORDERS DENYING REHEARING
(Division No. 1)
108,296 — Countrywide Home Loans, Inc.,
Plaintiff/Appellant, vs. Bancfirst, a State Banking Corporation, Defendant/Appellee, and
Bobby L. Hinkle; Julia Hinkle; John Doe; Jane
Doe; Logan County Treasurer and the Board of
County Commissioners of Logan County,
Defendants. Plaintiff/Appellant’s Petition for
Rehearing filed May 12, 2011 is DENIED.
107,577 — Denise Crenshaw, Plaintiff/Appellee, vs. Michael Johnson, Defendant/Appellant. Defendant/Appellant’s Petition for
Rehearing filed June 7, 2011 is DENIED.
107,754 — Jerry D. Dean and James H. Pilkington, individually and as Representatives of
a Class of Claimants, Petitioners, and Gus A.
Farrar, James E. Lowell, Pamla K. Cornett, W.E.
Sparks, and Gary A. Eaton, Petitioner/Appellants, vs. Multiple Injury Trust Fund f/k/a Spe-
Vol. 82 — No. 24 — 9/17/2011
cial Indemnity Fund of the State of Oklahoma,
administered by CompSource Oklahoma f/k/a
State Insurance Fund, and the Workers Compensation Court, Respondents. Petitioner/Appellants’ Petition for Rehearing filed June 24, 2011
is DENIED.
108,227 — Alan Benefiel, Plaintiff/Appellee,
vs. Jewel Boulton, Defendant/Appellant, and
Christa Benefiel, Defendant. Plaintiff/Appellee’s Petition for Rehearing filed June 21, 2011
is DENIED AS UNTIMELY FILED.
108,521 — Jana Robinson, Plaintiff/Appellee,
vs. Herman Tracy Clark, Defendant/Appellant. Defendant/Appellant’s Petition for
Rehearing filed July 6, 2011 is DENIED.
107,914 (Cons. w/108,398 & 108,498) — Vernon
W. Brock and Vernon Brock Consulting, L.L.C.,
Plaintiff/Appellants/Counter-Appellees, vs.
Hoco Drilling, L.L.C. and Steven S. Robson,
Defendant/Appellees/Counter-Appellants.
Plaintiff’s petition for rehearing is DENIED.
(Division No. 2)
Monday, June 27, 2011
107,702 — John Hudson, Petitioner/Appellee, vs. Shawn Rains, Respondent/Appellant.
Appellee, John Hudson’s Petition for Rehearing is hereby DENIED.
107,396 — State of Oklahoma ex rel. The
Oklahoma Board of Medical Licensure and
Supervision, Plaintiff/Appellee, v. Robert L.
Kale, M.D., License No. 24797, Defendant/
Appellant. Appellant’s Petition for Rehearing
is hereby DENIED.
107,104 — Margaret Bernadine Cornforth,
Petitioner/Appellee, vs. Richard Luke Cornforth, Respondent/Appellant. Appellant’s
April 26, 2011 Petition for Rehearing is hereby
DENIED.
108,500 — In the matter of the Estate of Hensley s/p/a Billy Joe Hensley, Deceased, Billy Joe
Hensley, II, Dianne Kerby and Daniel T. Hensley, Appellants, v. Dorice K. Hensley Shanklin,
Executrix of the Estate of Bill Hensley s/p/a
Billy Joe Hensley, deceased, Appellee. AppelVol.
216982 — No. 24 — 9/17/2011
lees Petition for Rehearing and Brief in Support, which was timely filed, is hereby
DENIED.
106,550 — John Luckett, Plaintiff/Appellant,
v. Staci Haley a/k/a Staci B. Jones and Kendrike D. Jones, Defendants, and Bank of America, Garnishee/Defendant/Appellee. Appellant’s
Petition For Rehearing Or Alternatively Reconsideration Based On Court Erroneously MisStating Facts” is DENIED.
107,529 (companion with 107,530) — In the
Matter of the Estate of Clarence R. Wright, Jr.,
deceased. Carolyn W. Henthorn, Clarence R.
Wright, III, and Raymond Earl Wright, Petitioners/Appellees, v. Carol Wright, Personal
Representative of the Estate of Clarence R.
Wright, Jr., Respondent, and McAfee & Taft,
Respondent/Appellant. Appellant’s Petition
for Rehearing is hereby DENIED.
107,530 (companion with 107,529) — Mary
Carol Wright, Trustee of the Clarence R. Wright,
Jr., Revocable Trust, Plaintiff, v. C.R. Wright, III,
Trustee of the trust created for the benefit of
C.R. Wright, III under an irrevocable trust
agreement dated July 17, 2003, Carolyn Wright
Henthorn and C.R. Wright, III, Co-Trustees of
the trust created for the benefit of Carolyn
Wright Henthorn under an irrevocable trust
agreement dated July 17, 2003; Raymond Earl
Wright and C.R. Wright, III, Co-Trustees of the
trust created for the benefit of Raymond Earl
Wright under an irrevocable trust agreement
dated July 17, 2003; C.R. Wright, III, Individually, Carolyn Wright Henthorn, Individually;
Raymond Earl Wright, Individually; and Pelican Narrows Investments, LLC, Defendants/
Appellees, and Carolyn W. Henthorn, Raymond Earl Wright and Clarence R. Wright, III,
as beneficiaries of the Clarence R. Wright, Jr.
Revocable Trust and the Kathryn R. Wright
Revocable Trust, and Clarence R. Wright, III as
Trustees of the Kathryn R. Wright Revocable
Trust, Counterclaim Plaintiffs/Appellees, v.
Mary Carol Wright, Trustee of the Clarence R.
Wright, Jr. Revocable Trust, Counterclaim
Defendant, and Carolyn W. Henthorn, Raymond E. Wright and Clarence R. Wright, III, as
beneficiaries of the Clarence R. Wright, Jr.
Revocable Trust and the Kathryn R. Wright
Revocable Trust, and Clarence R. Wright, III
and Raymond Earl Wright, as Trustees of the
Kathryn R. Wright Revocable Trust, Third
Vol. 82 — No. 24 — 9/17/2011
2169
Party Plaintiffs, v. Mary Carol Wright, an Individual, Third Party Defendant, and McAfee &
Taft, Appellant. Appellant’s Petition for Rehearing is hereby DENIED.
107,798 — Sheila R. Edwards, Petitioner/
Appellee, vs. Keith W. Edwards, Defendant/
Appellant. Petitioner/Appellee’ Petition for
Rehearing is DENIED.
(Division No. 3)
Thursday, May 19, 2011
107,279 — Ray Bagwell, Richard Gathman,
Bessie Gathman, David O’Hara, and Deborah
O’Hara, Plaintiffs/Appellants, vs. Tulsa County Board of Adjustment, Defendant/Appellee,
and Anchor Stone Company, Intervenor. The
Petition for Rehearing of Appellants, Ray Bagwell, Richard Gathman, Bessie Gathman, David
O’Hara, and Deborah O’Hara, is hereby
DENIED.
107,626 (Cons. w/Case No. 107,643) — Stockmans Bank, Plaintiff/Appellant, vs. Gary B.
Watkins, Defendant/Appellee. The Petition for
Rehearing filed herein is denied. DENIED.
Friday, May 20, 2011
108,143 — Eddie Griggs, Petitioner, vs.
Nabors Drilling USA, LP, and Zurich Insurance
Company, and The Workers’ Compensation
Court, Respondents. The Petition for Rehearing and Brief in Support of Respondents/
Appellees, Nabors Drilling, USA, LP and
Zurich Insurance Company, filed April 13,
2011, is DENIED.
Wednesday, May 25, 2011
107,965 — American Residential Community
and Ace Insurance Company, Petitioners, vs.
Levonna Corley and the Workers’ Compensation Court, Respondents. The Petition for
Rehearing, filed by Appellants/Petitioners on
April 28, 2011, is DENIED.
108,186 — In the Matter of the Estate of Inez
Nix, a/k/a Earnest Inez Nix, Deceased. Carlos
A. Williamson, Petitioner/Appellant/CrossAppellee, vs. The Oklahoma Department of
Wildlife Conservation, Respondent/Appellee/
Cross-Appellant. Carlos A. Williamson’s Petition for Rehearing and Brief in Support, filed
May 19, 2011, is DENIED.
Compsource Oklahoma, Respondents. The
Application for Rehearing of Petitioner, filed
June 3, 2011, is DENIED.
108,129 — City of Midwest City, Petitioner,
vs. Cynthia Ann Maddux and the Workers’
Compensation Court, Respondents. The Petition for Rehearing filed by Respondent, Cynthia Ann Maddux, on May 11, 2011, is
DENIED.
108,276 — Deyo Paddyaker and Donna Paddyaker, individuals, Plaintiffs/Appellants, vs.
Juanita Griffith and Newcastle Public Works
Authority, Defendants/Appellees. Appellants’
Petition for Rehearing Regarding Appellants’
Damages Claim and Brief in Support, filed
May 19, 2011, is DENIED.
108,599 — Wsbaldo Valdez and Linda Vargas, Plaintiffs/Counter-Defendants/Appellants, vs. Occupants of 3908 SW 24th Street,
Oklahoma City, Oklahoma and Oklahoma
County Treasurer, Defendants/Cross-Defendants, and Mae Ouellette, Defendant/CounterPlaintiff/Cross-Plaintiff/Third-Party Plaintiff/
Counter-Defendant/Appellee, vs. Hector Vargas, Third-Party Defendant/Counter-Plaintiff.
Appellants’ Petition for Rehearing and Brief in
Support Thereof, filed July 6, 2011, is DENIED.
(Division No. 4)
108,057 — Self & Associates, Inc., Plaintiff/
Appellant, vs. Justin Wade Jackson, Individually; Jeffrey T. Stites, Individually; and the law
Office of Jef Stites, PLLC, Defendants/Appellees. Appellees’ Petition for rehearing is
DENIED.
109,148 — Mercy Health Center, Petitioner,
vs. Kenny Moore and The Workers’ Compensation Court, Respondents. Respondent’s Petition for Rehearing is hereby DENIED.
Tuesday, June 14, 2011
107,828 — Jimmie Clunn and Jummy Tygart,
Plaintiffs/Appellees, vs. Gerald L. Kinion,
Defendant/Appellant, and Brown, Kinion &
Company, CPA, Inc., and Susan Brown, Defendants. Appellant’s Petition for Rehearing is
hereby DENIED.
108,611 — Dale Gilliland, Petitioner, vs.
Oklahoma Corporation Commission and
107,829 — Jimmie Clunn and Jummy Tygart,
Plaintiffs/Appellees, vs. Brown, Kinion &
2170
Vol. 82 — No. 24 — 9/17/2011
Company, CPA, Inc., and Gerald L. Kinion and
Susan Brown, Defendants. Appellant’s Petition
for Rehearing is hereby DENIED.
107,503 — Sandra M. Lefler, Plaintiff/Appelant, vs. Gregory G. Meier, individually and
doing business as “The Meier Law Firm, LLC,”
and “Meier, Morgan, Hatley and Stock,” and as
a member of Meier & Cole, PLLC, an Oklahoma
professional limited liability company, and
Uptown Properties, LLC, an Oklahoma limited
liability company; The Meir Law Firm a/k/a
The Meier Law Firm, LLC, an unincorporated
business association; and Meier Morgan, Hatley
& Stock, an unincorporated business association; Meier & Cole, PLLC, an Oklahoma professional limited liability company; Uptown Properties, LLC, an Oklahoma limited liability company, Defendants/Appellees, and the F&M Bank
& Trust Company, Defendant. Appellant’s Petition for Rehearing is hereby DENIED.
Biscone & Biscone
Attorneys
We will gladly accept your referrals
for oklahoma workers’ compensation
and social security disability cases.
Association/ referral fees paid
109,148 — Debbie Roca, now Houston, Plaintiff/Appellant, v. Carlos Roca, Defendant/
Appellee. Appelee’s Petition for Rehearing is
DENIED.
Vol. 82 — No. 24 — 9/17/2011
1-800-426-4563
405-232-6490
105 N. Hudson, Suite 100
Hightower Building
2171
2172
Vol. 82 — No. 24 — 9/17/2011
CLASSIFIED ADS
SERVICES
OFFICE SPACE
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
Board Certified
Diplomate — ABFE
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Court Qualified
Former OSBI Agent
FBI National Academy
Arthur D. Linville (405) 636-1522
INTERESTED IN PURCHASING PRODUCING &
NON-PRODUCING Minerals; ORRI; O & G Interests.
Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; (405)
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OF COUNSEL LEGAL RESOURCES — SINCE 1992 —
Exclusive research & writing. Highest quality: trial and
appellate, state and federal, admitted and practiced
U.S. Supreme Court. Over 20 published opinions with
numerous reversals on certiorari. MaryGaye LeBoeuf
(405) 728-9925, marygaye@cox.net.
EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL
Fitzgerald Economic and Business Consulting
Economic Damages, Lost Profits, Analysis, Business/
Pension Valuations, Employment, Discrimination,
Divorce, Wrongful Discharge, Vocational Assessment,
Life Care Plans, Medical Records Review, Oil and Gas
Law and Damages. National, Experience. Call Patrick
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Appeals and litigation support
Expert research and writing by a veteran generalist
who thrives on variety. Virtually any subject or any
type of project, large or small. NANCY K. ANDERSON, (405) 682-9554, nkanderson@hotmail.com.
Creative. Clear. Concise.
BUSINESS VALUATIONS: Marital Dissolution * Estate, Gift and Income Tax * Family Limited Partnerships * Buy-Sell Agreements * Mergers, Acquisitions,
Reorganization and Bankruptcy * SBA/Bank required.
Dual Certified by NACVA and IBA, experienced, reliable, established in 1982. Travel engagements accepted.
Connally & Associates PC (918) 743-8181 or bconnally@
connallypc.com.
Want To Purchase Minerals AND OTHER
OIL/GAS INTERESTS. Send details to: P.O. Box 13557,
Denver, CO 80201.
FREELANCE BOOK LAWYER — with highest rating
and with 25+ years’ experience on both sides of the table
is available for strategic planning, legal research and
writing in all state and federal trial and appellate courts
and administrative agencies. Admitted and practiced
before the United States Supreme Court. Janice M.
Dansby, 405-833-2813, jdansby@concentric.net.
Vol. 82 — No. 24 — 9/17/2011
MORELAW SUITES: DOWNTOWN TULSA. Legal suites
and virtual offices. 406 S. Boulder/624 South Denver.
Starting at $165 per month. See MoreLawSuites.com
(918) 582-3993/Info@MoreLaw.com.
101st AND YALE OFFICE SPACE: Experienced solo divorce attorney to share prestigious south Tulsa office location by Yale exit of Creek Turnpike, fully furnished
with conference room, receptionist, Internet, phone, copier and fax. (918) 528-3380 or email jim@jbryantlaw.com.
OFFICE SHARE
OKC 63RD AND N. WESTERN AVE. Furnished, spacious
wood paneled office in bank building. One-half day per
week - $300 per month. Share conference room, kitchen,
high-speed Internet. Contact farris2002@swbell.net.
POSITIONS AVAILABLE
ASSOCIATE WITH 4-8 YEARS CIVIL DEFENSE
litigation experience needed by AV-rated Tulsa firm.
Insurance defense or railroad litigation a plus. Very
busy, fast-paced office offering competitive salary,
health/life insurance, 401k, etc. Send resume and
writing sample (10 pg. max) in confidence via email to
legalhrmgr@aol.com.
SMALL TULSA AV-RATED GENERAL LITIGATION
DOWNTOWN FIRM seeking part-time associate to
handle primarily civil litigation. May need to assist
with some criminal and/or family law litigation.
Hours flexible, ranging from 20-40 hours per week.
Applicants should be licensed with the Oklahoma Bar,
self-motivated, excellent research and writing skills,
and able to manage a small to medium caseload.
Knowledge and experience with federal civil rights
litigation is preferred, but not required. Salary commensurate with experience. Qualified applicants
should send resume and writing sample with a cover
letter to attorneypositiontulsa@gmail.com.
THE WYANDOTTE NATION IS CURRENTLY SEEKING letters of interest for a licensed attorney to conduct
an overall review and update of the Wyandotte Nation
Civil Code, Criminal Code, Rules of Evidence, Court
Procedures and advise leaders on the creation of a Tribal Judicial System. This position requires the candidate
to be extremely knowledgeable in tribal law. A valid
license to practice law in the state of Oklahoma is required. The Wyandotte Nation is an Equal Opportunity
Employer. Please send your letter to: Wyandotte Nation Police Department, c/o Jan Everley, Justice System
Coordinator, 64700 E. Hwy. 60, Wyandotte, OK 74370.
SOUTH TULSA FIRM, COFFEY, GUDGEL & MCDANIEL, is seeking an insurance defense attorney with 3 to
7 years experience. If interested, please send resume to
tulsalawfirm07@yahoo.com.
2173
POSITIONS AVAILABLE
POSITIONS AVAILABLE
FULL-TIME POSITION AS ASSOCIATE ATTORNEY
for law firm providing services for major legal plan.
Requires excellent telephone manner and people skills,
must be fluent in Spanish, and have broad knowledge
of the law with at least two years experience. Great opportunity for attorneys who want to keep active while
parenting or approaching retirement. Those with independent practices need not apply. Send resumes to Human Resources Dept. P.O. Box 1046, Tulsa, OK 74101.
ATTORNEY GENERAL: (PART-TIME AS NEEDED)
The Kaw Nation is seeking a part-time attorney general. Qualifications for this position include: Juris Doctor
degree from an accredited law school, with an additional three years related experience required. Must
have the ability to appraise, interpret and apply legal
principles and precedents to difficult legal problems.
Concisely and accurately communicate, both orally
and in writing. Learn tribal laws and customs unique
to the Kaw Nation. Establish and maintain an effective
working relationship with others. Shall be a member in
good standing of the bar of the Supreme Court of the
United States, or of any U.S. Court of Appeals, or of any
district court of the United States, or a member in good
standing of the bar of the highest court of any state of
the United States and need not be a citizen of the Kaw
Nation. Must have ability to pass a background check
and drug test, have a valid driver’s license, and be
insurable under the policies of the Kaw Nation. Applications available at www.kawnation.com. Resumes
without an Application and Disclosure Agreement will
not be considered. Submit applications with resumes
to P.O. Box 50, Kaw City, OK 74641 or fax to (580) 2692536. Applications/Resumes accepted through Monday, October 3rd. Applications/Resumes postmarked
after this date will not be accepted. For additional information contact: Kaw Nation Human Resource Department (580) 269-2552. EEO and Drug free work
place employer. Indian preference considered with
verification of Indian Heritage.
LITIGATION LAW FIRM (civil, probate and domestic
relations) seeks Oklahoma licensed attorney with 0-3
years experience. Contract labor position with goal of
full-time employee and then shareholder. Practice involves Oklahoma County and western Oklahoma
counties, ideal for attorney residing in Yukon vicinity
or west. Must be self disciplined and goal oriented. Requirements: Top 60% of graduating class, excellent research and writing skills. Interested applicants must
forward cover letter, resume, transcript and writing
sample to “Box Q,” Oklahoma Bar Association, P.O.
Box 53036, Oklahoma City, OK 73152.
ENVIRONMENTAL ATTORNEY – ONEOK INC., a diversified energy company, is seeking a well-qualified
environmental attorney for its Tulsa office. Required
qualifications include a minimum 5 years of full-time
legal practice handling complex multi-jurisdictional
environmental issues, including water, air and waste,
with a primary emphasis on permitting, compliance,
enforcement and remediation. Experience with OSHA,
DOT and state health and safety laws is a plus, and
experience in the natural gas industry is desired. Please
submit cover letter, resume and salary requirements
to ONEOK at www.theonetoworkfor.com, posting
number IRC43343.
ATTORNEY IN 37-YEAR ESTATE PLANNING PRACTICE LOOKING to transition toward retirement. Wellmaintained client database with more than 10 years
history of fees in excess of $650,000 per year. Two member firms or larger who want to start or enhance an estate planning practice please reply indicating a desire
to have discussions about merging or acquiring practice. Please send interest to “Box X,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
All replies shall remain confidential.
RECEPTIONIST, BILLING/BOOKKEEPER AND PARALEGAL: Unique, tech-savvy firm seeks applicants
for three positions: (i) receptionist/light secretarial
(part-time possible); (ii) Multitasker to perform billing,
light bookkeeping and office management roles; and
(iii) part-time paralegal (PI, Workers Comp, and/or
business transactions.) Seeking motivated self-starters
that thrive in a busy environment. Send resume and
cover letter to Palmer | Wantland, at Employment@
PalmerWantland.com.
2174
LEGAL SECRETARY FOR OFFICE PRACTICE (litigation
and general business); position requires proficiency in
Microsoft Word, attention to detail and excellent organizational skills. Submit cover letter, resume and salary requirements via email to ccriswell@okhealthlawyer.com.
POSITIONS WANTED
FORMER LICENSED ATTORNEY WITH OVER 30
YEARS civil practice experience seeks position with
law firm or corporation. Contact Jim Golden at
j_golden@cox.net or (405) 209-0110.
FOR SALE
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$39,900. 2007 Porsche GT 3 – 7,250 miles. Black with
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RETIRING ATTORNEY HAS EXECUTIVE DESK with
2 credenza bookcase and 2 side chairs, 2 legal locking
lateral filing cabinets, 3 metal two-door storage units.
Priced well. Call Earl Donaldson. OKC. (405) 323-7739.
Vol. 82 — No. 24 — 9/17/2011
Vol. 82 — No. 24 — 9/17/2011
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Vol 82 No 24 (Sept 17) - Oklahoma Bar Association

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