July 29 Merged - Oklahoma Bar Association

Transcription

Volume 77
◆
No. 20
◆
July 29, 2006
Cour t Mater ial
2090
The Oklahoma Bar Journal
Vol. 77 — No. 20 — 7/29/2006
OFFICERS & BOARD OF GOVERNORS
William R. Grimm, President, Tulsa
Stephen D. Beam, President-Elect, Weatherford
Jerome A. Holmes, Vice President, Oklahoma City
Julie E. Bates, Oklahoma City
Dietmar K. Caudle, Lawton
Cathy M. Christensen, Oklahoma City
Robert S. Farris, Tulsa
Brian T. Hermanson, Ponca City
Michael W. Hogan, McAlester
R. Victor Kennemer III, Wewoka
Mike Mordy, Ardmore
Jon K. Parsley, Guymon
Deborah A. Reheard, Eufaula
Robert B. Sartin, Tulsa
Alan Souter, Bristow
Keri G. Williams, Stillwater,
Chairperson, OBA/Young Lawyers Division
BAR CENTER STAFF
John Morris Williams, Executive Director;
Dan Murdock, General Counsel; Donita Bourns
Douglas, Director of Educational Programs;
Carol A. Manning, Director of Public Information;
Craig D. Combs, Director of Administration;
Gina L. Hendryx, Ethics Counsel; Jim Calloway,
Director of Management Assistance Program; Rick
Loomis, Director of Information Systems; Beverly S.
Petry, Administrator MCLE Commission; Jane
McConnell, Coordinator Law-related Education;
Loraine Dillinder Farabow, Janis Hubbard and
Mike Speegle, Assistant General Counsels; Robert D.
Hanks, Senior Investigator; Sharon Orth, Ray Page
and Dorothy Walos, Investigators
EVENTS CALENDAR
JULY
31
AUGUST
8
10
OBA Bench and Bar Committee Meeting; 2 p.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Jack Brown (918) 581-8211
11
Lawyers in the Classroom Training; 9 a.m.; Oklahoma Bar Center,
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(405) 354-6800
16
OBA Bar Center Facilities Committee Meeting; 9 a.m.; Oklahoma
Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
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OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City and OSU Tulsa; Contact: Rick Goralewicz
(405) 521-1302
Council Oak/Johnson-Sontag and Hudson-Hall-Wheaton
Chapters of American Inns of Court Fall Banquet; 6 p.m.;
Renaissance Hotel, Tulsa; Contact: Erin Dailey at
edailey@gablelaw.com or visit www.hudsonhallwheaton.com
EDITORIAL BOARD
NOTICE of change of address (which must be in
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Vol. 77 — No. 20 — 7/29/2006
OBA Work/Life Balance Committee Meeting; 12 p.m.;
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(405) 609-5280
OBA Civil Procedure Committee Meeting; 3 p.m.; Oklahoma Bar
Contact: James Milton (918) 591-5229
Nina Anderson, Manni Arzola, Jenn Barrett, Cheryl
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Editor in Chief, John Morris Williams
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Editor, Melissa DeLacerda, Stillwater
Associate Editors: Steve Barnes, Poteau; Martha
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Rieman, Enid; James Stuart, Shawnee and
Judge Lori M. Walkley, Norman
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Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Linda
Samuel-Jaha (405) 239-2524
17
OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar
Contact: Sharisse O’Carroll (918) 584-4192
18
OBA Board of Governors Meeting; Stillwater; Contact: John
Morris Williams (405) 416-7000
The Oklahoma Bar Association’s official Web site:
www.okbar.org
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar
Association. All rights reserved. Copyright© 2006 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 FOUR TIMES A
MONTH IN JANUARY, THREE TIMES A MONTH IN FEBRUARY, MARCH, APRIL,
MAY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER AND DECEMBER AND
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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. 77 — No. 20 — 7/29/2006
OKLAHOMA BAR ASSOCIATION
table of
contents
July 29, 2006
• Vol. 77
• No. 20
page
2091
2094
2097
2101
2161
EVENTS CALENDAR
2162
FYI
RESIGNATIONS & REINSTATEMENTS
2165
2167
MANDATES
INDEX TO COURT OPINIONS
COURT OF CRIMINAL APPEALS OPINIONS
COURT OF CIVIL APPEALS OPINIONS
BAR NEWS
OBA NOMINATING PETITIONS FILED
DISPOSITION OF CASES OTHER THAN BY PUBLICATION
Vol. 77 — No. 20 — 7/29/2006
2093
Index To Opinions Of Court Of Criminal Appeals
2006 OK CR 27 KENNETH EUGENE HOGAN, Appellant, v. STATE OF OKLAHOMA,
Appellee. No. D-2003-61039 .............................................................................................................2097
2006 OK CR 26 IN RE: ADOPTION OF THE 2006 REVISIONS TO THE OKLAHOMA
UNIFORM JURY INSTRUCTIONS CRIMINAL (SECOND EDITION) No.
CCAD-2006-3 ......................................................................................................................................2098
2006 OK CR 30 BRIAN LEE SPORN, Appellant, v. STATE OF OKLAHOMA, Appellee.
No. PC-2006-439 .................................................................................................................................2099
Index To Opinions Of Court Of Civil Appeals
CASES ASSIGNED TO DIVISIONS 1 AND 3 OF THE COURT OF CIVIL APPEALS ..........................2101
CASES ASSIGNED TO DIVISIONS 2 AND 4 OF THE COURT OF CIVIL APPEALS ..........................2101
2006 OK CIV APP 72 ROBERT J. DAVIS, an individual, Plaintiff/Appellee, v.
INDEPENDENT SCHOOL DISTRICT NUMBER 89 OF OKLAHOMA COUNTY
a/k/a OKLAHOMA CITY PUBLIC SCHOOLS, Defendant/Appellant. No. 101,002 ............2102
2006 OK CIV APP 73 BRUCE DAVID GAMBILL, Plaintiff/Appellant, v. DONETTA
GAMBILL, Defendant/Appellee. No. 101,183 ..............................................................................2104
2006 OK CIV APP 74 STATE OF OKLAHOMA, ex rel., C. WESLEY LANE,
Plaintiff/Appellee, v. SEVEN HUNDRED TWENTY FIVE DOLLARS ($725.00),
Defendant. OLIVER THOMAS STRINGER, Claimant/Appellant. No. 101,756. May
16, 2006.................................................................................................................................................2109
2006 OK CIV APP 75 JIMMY L. VEITH and COMPSOURCE OKLAHOMA, Petitioners,
v. KARA D. (VAILS) OGBURN and THE WORKERS’ COMPENSATION COURT,
Respondents. No. 101,824..................................................................................................................2111
2006 OK CIV APP 76 IN THE MATTER OF THE ESTATE OF DAVID LEWIS AKERS,
DECEASED. BOBBIE AKERS and SHERRY STRONG, Petitioners/Appellees, v.
JEFFREY AKERS, Respondent/Appellant. No. 102,240...............................................................2115
2006 OK CIV APP 77 BONNIE FORCUM, Plaintiff/Appellant, v. VIA CHRISTI HEALTH
SYSTEM, INC., a Kansas Corporation, and VIA CHRISTI OKLAHOMA REGIONAL
MEDICAL CENTER-PONCA CITY, INC., f/k/a ST. JOSEPH REGIONAL MEDICAL
CENTER OF NORTHERN OKLAHOMA, INC., an Oklahoma Corporation,
Defendants/Appellees. No. 101,742................................................................................................2115
2006 OK CIV APP 78 MIKE WARREN and JUDY WARREN, and ANGIE MILLER,
natural mother and legal custodian of CAMERON NORMORE, a minor child,
Plaintiffs/Appellants, v. UNITED STATES SPECIALTY SPORTS ASSOCIATION,
Defendant/Appellee. No. 102,048 ...................................................................................................2118
2006 OK CIV APP 79 TODD TRICE, Plaintiff/Appellant, v. JEFF L. BURRESS and
WESLEY UNITED METHODIST CHURCH OF SHAWNEE, Defendants/Appellees,
The United Methodist Church — Oklahoma Area, Defendant. No. 102,332 ...........................2123
2006 OK CIV APP 80 RAYMOND D. HALE and LILLIAN HALE, Plaintiffs/Appellees,
v. A.G. INSURANCE COMPANY, Defendant/Appellant. No. 101,208 ....................................2127
2006 OK CIV APP 81 SOUTHERN MATERIAL HANDLING CO., and FIRE &
CASUALTY INSURANCE COMPANY OF CONNECTICUT, Petitioners, v. STEVE
FALLING and the WORKERS' COMPENSATION COURT, Respondents. No. 102,091 ........2135
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2006 OK CIV APP 82 DOUG ISHMAEL, Plaintiff/Appellant, v. STEPHEN L. ANDREW,
and STEPHEN L. ANDREW & ASSOCIATES, a professional corporation,
Defendants/Appellees. No. 102,129................................................................................................2138
2006 OK CIV APP 83 ROBERT DEAN McCUTCHEON, Plaintiff/Appellant, v.
BRITTON, RAMSEY AND GRAY, P.C., f/k/a BRITTON, GRAY, RAMSEY AND
McCUTCHEON, P.C., Defendant/Appellee. No. 102,168 ...........................................................2142
2006 OK CIV APP 84 BLUE BELL, INC., and LIBERTY MUTUAL INSURANCE CO.,
Petitioners, v. MAGGIE M. SPEAKMAN and THE WORKERS’ COMPENSATION
COURT, Respondents. No. 102,197 .................................................................................................2144
2006 OK CIV APP 85 WANDA BAILEY and CARMA FOSTER, Plaintiffs/Appellants,
v. FARMERS INSURANCE COMPANY, INC., Defendant/Appellee. No. 102,865.................2147
2006 OK CIV APP 86 IN THE MATTER OF THE ESTATE OF HATTIE L. THIEL,
Deceased, MELISSA D. BRISCOE and MARSHA C. McDONALD,
Petitioners/Appellants, v. JOHN C. MORRIS, Personal Representative of the Estate
of Hattie L. Thiel, Deceased; LOIS R. BOYETT; BEVERLY HARRIS; and HELEN
MORRIS, Respondents/Appellees, and, DEBBIE SMART, Respondent. No. 102,892 ............2150
2006 OK CIV APP 87 ROBERT ELLIOTT and KATHY ELLIOTT, Plaintiffs/Appellees, v.
CALEB McCALEB, McCALEB HOMES, INC., and McCALEB LAND &
DEVELOPMENT, LLC, Defendants/Appellants. No. 102,413 ...................................................2152
2006 OK CIV APP 88 IN THE MATTER OF K.U., M.U., AND T.U., Alleged Deprived
Children. STATE OF OKLAHOMA, Plaintiff/Appellee, v. JONATHAN USSERY,
Defendant/Appellant. No. 102,877 .................................................................................................2154
Vol. 77 — No. 20 — 7/29/2006
2095
To the actor it’s the OSCAR®
To the Olympian it’s the GOLD
To the singer it’s the GRAMMY
To the lawyer it’s the OBA AWARD
Now is the time to honor someone by nominating them for an
OBA Award. Awards will be presented at the Annual Meeting
to be held Nov. 15-17, 2006 in Tulsa.
Nomination deadline: August 3
More details on the nomination process at www.okbar.org
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Vol. 77 — No. 20 — 7/29/2006
Court of Criminal Appeals Opinions
CORRECTION NOTICE
There was a misprint in the Oklahoma Bar
Journal in the July 15, 2006, issue on page 2029
concerning the printing of Kenneth Eugene
Hogan, Appellant, v. State of Oklahoma, 2006 OK
CR 27. The misprint failed to indicate that Presiding Judge Charles S. Chapel Dissents. The
Court’s Order is being reprinted, in its entirety,
below in the correct format.
2006 OK CR 27
KENNETH EUGENE HOGAN, Appellant, v.
STATE OF OKLAHOMA, Appellee.
No. D-2003-610. June 28, 2006
ORDER GRANTING REHEARING BUT
DENYING RECALL OF THE MANDATE
¶1 Appellant filed a Petition for Rehearing and
Motion to Recall the Mandate in the abovestyled appeal on June 5, 2006. He requests reconsideration of this Court’s decision affirming his
conviction for first-degree murder and sentence
of death. See Hogan v. State, 2006 OK CR 19,
___P.3d___(May 15, 2006).
¶2 A Petition for Rehearing shall not be filed
as a matter of course, but only for two reasons:
1. Some question decisive of the case and
duly submitted by the attorney of record
has been overlooked by the Court, or
¶4 Appellant also claims questions decisive of
the case that were duly submitted were overlooked by the Court. The opinion does not
address Appellant’s claim that trial counsel was
ineffective for failing to challenge the jury
instructions submitting first degree manslaughter as a lesser included offense or the prosecutor’s allegedly improper statements to the jury
on intent to kill. Neither of these issues, however, is decisive and requires relief.
¶5 We held the jury instructions, when read as
a whole, fairly and accurately stated the applicable law. Hogan v. State, 2006 OK CR 19, ¶ 44.
Hogan, thus, cannot show that he was prejudiced by counsel’s failure to object to the court’s
instructions and he cannot prevail. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984); Davis v. State, 2005
OK CR 21, ¶ 7, 123 P.3d 243, 246. Nor do we find
that the prosecutor’s argument concerning intent
to kill and how it can be formed erroneously
instructed the jury on the issue of intent to kill.
Wackerly v. State, 2000 OK CR 15, ¶¶ 29-30, 12
P.3d 1, 12.
¶6 The Petition for Rehearing is GRANTED.
The Motion to Recall the Mandate is, however,
DENIED.
¶7 IT IS SO ORDERED.
¶8 WITNESS OUR HANDS AND THE SEAL
OF THIS COURT this 28th day of June, 2006.
/s/ Charles S. Chapel
CHARLES S. CHAPEL,
Dissents.
Presiding Judge
2. The decision is in conflict with an
express statute or controlling decision to
which the attention of this Court was not
called either in the brief or in oral argument.
/s/ Gary L. Lumpkin
GARY L. LUMPKIN,
Vice Presiding Judge
Rule 3.14, Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch.18, App. (2006).
¶3 In seeking rehearing, Appellant claims that
this Court incorrectly decided the claims raised
in Propositions I, II, III and VIII and the decision
is in conflict with controlling authority. We disagree. The decision rendered in this case disposed of the issues raised relying upon appropriate authority and we deny rehearing on this
basis.
Vol. 77 — No. 20 — 7/29/2006
/s/ Charles A. Johnson
CHARLES A. JOHNSON, Judge
/s/ Arlene Johnson
ARLENE JOHNSON, Judge
/s/ David Lewis
David Lewis, Judge
ATTEST:
/s/ Michael Richie
Clerk
2097
2006 OK CR 26
No. CCAD-2006-3. July 19, 2006
IN RE: ADOPTION OF THE 2006
REVISIONS TO THE OKLAHOMA
UNIFORM JURY INSTRUCTIONS
CRIMINAL (SECOND EDITION)
No. CCAD-2006-2. July 20, 2006
CORRECTION ORDER
¶1 The case number of this Order should be
corrected as follows:
CASE NO. CCAD-2006-3
¶3 WITNESS OUR HANDS AND THE
SEAL OF THIS COURT this 20th day of July,
2006.
/s/ Gary L. Lumpkin
GARY L. LUMPKIN,
be available for access via the internet from this
Court’s web site at www.okcca.net on the date of
this order and provided to West Publishing
Company for publication. The Administrative
Office of the Courts is requested to duplicate
and provide copies of the revisions to the judges
of the District Courts and the District Courts of
the State of Oklahoma are directed to implement
the utilization of these revisions effective on the
date of this order.
¶3 IT IS FURTHER ORDERED ADJUDGED
AND DECREED the amendments to existing
OUJI-CR 2d instructions, and the adoption of
new instructions, as set out in the following designated instructions and attached to this order,
are adopted, to wit:
4-4; 4-5; 4-6; 4-7; 4-8; 4-15; 4-16; 4-17; 4-17A;
4-17B; 4-18; 4-18A; 4-18B; 4-18C; 4-19; 4-20;
4-21; 4-22; 4-32A; 4-57; 4-57A; 4-57B; 4-96A;
6-39; 9-5; 9-32; 10-13A; 10-13B
¶4 The Court also accepts and authorizes the
updated committee comments to be published,
together with the above styled revisions and
each amended page in the revisions to be noted
at the bottom as follows “(2006 Supp.)”.
ATTEST:
/s/ Michael Richie
Clerk
2006 OK CR 26
IN RE: ADOPTION OF THE 2006
REVISIONS TO THE OKLAHOMA
UNIFORM JURY INSTRUCTIONS
CRIMINAL (SECOND EDITION)
No. CCAD-2006-3. July 19, 2006
ORDER ADOPTING AMENDMENTS TO
OKLAHOMA UNIFORM JURY
INSTRUCTIONS-CRIMINAL (SECOND
EDITION)
¶5 IT IS THE FURTHER ORDER OF THIS
COURT that the members of The Oklahoma
Court of Criminal Appeals Committee for
Preparation of Uniform Criminal Jury Instructions be commended for their ongoing efforts to
provide up-to-date Uniform Jury Instructions to
the bench and the bar of the State of Oklahoma.
¶7 WITNESS OUR HANDS AND THE
SEAL OF THIS COURT this 19th day of July,
2006.
CHARLES S. CHAPEL,
Presiding Judge
¶1 On June 19, 2006, The Oklahoma Court of
Criminal Appeals Committee for Preparation of
Uniform Jury Instructions submitted its report
and recommendations to the Court for the adoption of amendments to Oklahoma Uniform Jury
Instructions-Criminal (Second Edition). The
Court has reviewed the report by the committee
and recommendations for the adoption of the
2006 proposed revisions to the Uniform Jury
Instructions. Pursuant to 12 O.S. 1991, § 577.2,
the Court accepts that report and finds the revisions should be ordered adopted.
¶2 IT IS THEREFORE ORDERED
ADJUDGED AND DECREED that the report
of The Oklahoma Court of Criminal Appeals
Committee for Preparation of Uniform Jury
Instructions shall be accepted, the revisions shall
2098
/s/ Gary L. Lumpkin
GARY L. LUMPKIN,
/s/ Arlene Johnson
/s/ David Lewis
David Lewis, Judge
ATTEST:
/s/ Michael Richie
Clerk
Vol. 77 — No. 20 — 7/29/2006
2006 OK CR 30
BRIAN LEE SPORN, Appellant, v. STATE
OF OKLAHOMA, Appellee.
No. PC-2006-439. July 19, 2006
ORDER AFFIRMING DENIAL OF
POST-CONVICTION RELIEF
¶1 On April 24, 2006, Petitioner, pro se, filed
with the Clerk of this Court a Petition in Error
and supporting brief appealing an August 17,
2005, final order of the District Court of Oklahoma County, Case No. CF-1997-7210. The Honorable Twyla Mason Gray, District Judge,
entered the final order with the trial court clerk
on August 18, 2005. The order denied an Application for Post-Conviction Relief that Petitioner
filed in the District Court on July 14, 2005.1
¶2 Following pleas of guilty, Petitioner was
convicted upon five counts of Indecent Lewd
Acts with a Child Under 16. On August 27, 1999,
the Honorable Susan Bragg, District Judge, sentenced Petitioner to concurrent terms of fifteen
years imprisonment upon each count, with all
but the first five years suspended. Petitioner did
not appeal these convictions. In March of 2004,
the District Court entered an order revoking in
full the remaining unexecuted portions of Petitioner’s suspended sentences. On January 10,
2005, this Court affirmed the District Court’s
revocation order in an unpublished Summary
Opinion, Appellate Case No. RE-2004-367.
¶3 In these post-conviction proceedings, Petitioner challenges the District Court’s revocation
order by claiming that his trial counsel provided
him with ineffective assistance during the revocation action. The District Court disposed of this
claim by finding that it “is waived because it
could have been raised on direct appeal and was
not.”2 (Dist. Ct. Order at 3.) Citing to cases decided by the Tenth Circuit that each involve appeals
from federal convictions, Petitioner contends on
appeal that this finding is error because “[t]he
Tenth Circuit Court of Appeals have [sic] stated
numerous times that claims of ineffective assistance of counsel is [sic] properly brought in collateral proceeding, not direct appeal.” (Brief of
Pet’r at 9) (emphasis in original).
¶4 The Court FINDS Petitioner’s claim of
error to be unfounded. As with all other claims
that could have been raised upon direct appeal,
a claim of ineffective assistance of trial counsel,
available at the time of a defendant’s direct
appeal, must be presented in that direct appeal
or it is waived.3 In this state proceeding, Petitioner cannot rely upon the Tenth Circuit Court
of Appeals’ application of federal rules of proceVol. 77 — No. 20 — 7/29/2006
dure for raising claims of ineffectiveness in
appeals of federal convictions. The federal decisions cited by Petitioner provide no authority
for interpreting Oklahoma’s Post-Conviction
Procedure Act, as none of the cited cases concerns state post-conviction procedures.
¶5 In Massaro v. United States, 538 U.S. 500, 123
S.Ct. 1690, 155 L.Ed. 2d 714 (2003), the Supreme
Court took the opportunity to resolve a conflict
that existed among different federal appellate
courts concerning whether defendants should
be procedurally barred from bringing a claim of
ineffective assistance of trial counsel on collateral review. A majority of the Circuit Courts of
Appeals had “tak[en] the position that there is
no procedural default for failure to raise an ineffective-assistance claim on direct appeal.” On
the other hand, the Second and Seventh Circuits
had held that if appellate counsel did not represent the defendant at trial and “his trial counsel’s ineffectiveness was evident from the
record, and that he had failed to show cause or
prejudice,” then the defendant was “procedurally barred from bringing the ineffective-assistance claim on collateral review.” Massaro at 503,
123 S.Ct. at 1693. The Supreme Court believed
that “[t]he better-reasoned approach is to permit
ineffective-assistance claims to be brought in the
first instance in a timely motion in the district
court under [28 U.S.C.] § 2255,” and it therefore
held, “that an ineffective-assistance-of-counsel
claim may be brought in a collateral proceeding
under § 2255, whether or not the petitioner
could have raised the claim on direct appeal.” Id.
at 504, 123 S.Ct. at 1694.
¶6 Massaro, however, does not require Oklahoma to construe its post-conviction procedural
bars concerning ineffective-assistance claims in
the manner now established for federal cases.
Massaro specifically recognized that “[t]he procedural default rule is neither a statutory nor a
constitutional requirement, but it is a doctrine
adhered to by the courts to conserve judicial
resources and to respect the law’s important
interest in the finality of judgments.” Id. at 504,
123 S.Ct. at 1693. Although the Supreme Court
acknowledged that a “growing majority of state
courts now follow the rule” that it was adopting,
it did not require the states to adopt its rule. Id.
at 508, 123 S.Ct. at 1695.
¶7 In Berget v. State, 1995 OK CR 66, ¶¶ 4-25,
907 P.2d 1078, 1081-85, we thoroughly compared
federal and state procedures for reviewing
claims of ineffective assistance of trial counsel.
As explained in Berget, the requirement that
available ineffective-trial-counsel claims be
made in a defendant’s direct appeal is a viable
2099
alternative to those federal procedures established for raising ineffective claims. Petitioner’s
arguments do not persuade us to abandon this
state rule of post-conviction procedure.
¶8 IT IS THEREFORE THE ORDER OF THIS
COURT that the August 17, 2005, order denying
Petitioner post-conviction relief in Oklahoma
County District Court, Case No. CF-1997-7210,
is AFFIRMED. Pursuant to Rule 3.15, Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch.
18, App. (2006), MANDATE IS ORDERED
ISSUED upon the filing of this decision.
¶10 WITNESS OUR HANDS AND THE SEAL
OF THIS COURT this 19th day of July, 2006.
CHARLES S. CHAPEL,
Presiding Judge
/s/ Arlene Johnson
/s/ David Lewis
DAVID LEWIS, Judge
ATTEST:
/s/ Michael Richie
Clerk
1. On March 30, 2006, in Appellate Case No. PC-2006-242, this
Court granted Petitioner leave to file this out-of-time appeal of the
order denying him post-conviction relief.
2. Petitioner’s counsel in the revocation appeal was not the same
attorney who represented Petitioner within the revocation proceedings before the trial court.
3. Woodruff v. State, 1996 OK CR 5, ¶¶ 8-10, 910 P.2d 348, 351-52;
Berget v. State, 1995 OK CR 66, ¶¶ 4-25, 907 P.2d 1078, 1081-85; Allen v.
State, 1995 OK CR 78, ¶ 6, 909 P.2d 836, 839.
/s/ Gary L. Lumpkin
GARY L. LUMPKIN,
Tuesday, August 15, 3 p.m.
Oklahoma Bar Center
1901 N. Lincoln Blvd., Oklahoma City
OBA Public Hearing
on Changes to the
Oklahoma Rules
of Professional
Conduct
2100
An OBA Rules of Professional Conduct Committee
has engaged in a comprehensive review of the
Oklahoma Rules of Professional Conduct. This
project was prompted by extensive updates to the
ABA’s Model Rules of Professional Conduct. The
committee has adopted and recommended changes
to Oklahoma’s current rules. View the proposed rules
at www.okbar.org/ethics/OPRC.htm.
OBA members are invited to attend and comment
on the proposed changes at the public hearing listed
above. Members may also submit comments via
e-mail to ginah@okbar.org or in writing to the OBA,
P.O. Box 53036, Oklahoma City, OK 73152-3036.
Following the public hearings, recommended
changes will be submitted to the House of Delegates
with final approval the province of the Oklahoma
Supreme Court.
Vol. 77 — No. 20 — 7/29/2006
Court of Civil Appeals Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
IN THE SUPREME COURT OF THE STATE
OF OKLAHOMA
Monday, July 17, 2006
The following cases are assigned to the Court of
Civil Appeals Oklahoma City, Divisions 1 and 3.
The judges serving in the Oklahoma City Divisions are Carol M. Hansen, Glenn D. Adams,
Larry E. Joplin, Kenneth L. Buettner and E. Bay
Mitchell, III and Robert Dick Bell. The judges sit in
three-judge panels which rotate periodically, but
all assigned cases will be decided by three of the
above named judges. Any party may seek disqualification of any judge pursuant to
Okla.Sup.Ct.R. 1.175, 12 O.S.2001, Ch. 15, App. 1
and 20 O.S. 2001 §§ 30.3, 1401 and 1402.
100,506 Sharon Calvin v. John Calvin.
100,528 James Layman v. Gerald R. Proctor.
101,164 Bank One, N.A. v. Frank A. Wallace, etc.
101,261 Manor Care Health Services, Inc. v. Janice Bell & WCC.
101,401 Pamela Ladene Russell v. Clayton Raymond Russell.
101,695 Trevor Keeler v. Ben Anderson.
101,696 Misty Keeler v. Ben Anderson.
102,346 Stephen P. Wallace v. Trust Co. of Oklahoma et al.
102,484 Brenda Cook v. Buffy Williamson.
102,509 Melissa Barnes v. Richard Barnes.
102,520 Sandra Agee v. Mark Alan Agee.
102,521 Stephen P. Wallace v. Ronald Saffa.
102,570 Lynn Anderson v. Stewart Katz.
102,931 Mary Roma Wallace Jage & Stephen P.
Wallace v. Patricia Wallace Hastings.
103,169 Jennifer Jean Heim v. Timothy Douglas
Winters.
103,235 Helen Jill Young v. Norman Public
Schools & WCC.
103,261 Thomas R. Gasper v. Cable One & WCC.
103,487 Ivy Lively Newton Cox v. Kaiser-Francis Oil Co et al.
103,499 Belport Oil, Inc. v. Panoak Gas Company, Inc.
103,500 Joe Logan and Jim Logan v. Anna
Louise Hood.
Vol. 77 — No. 20 — 7/29/2006
103,513 Drew Edmondson v. Ronald & Bernice
Dean.
The proceedings are to be governed by Oklahoma
Supreme Court Rules, Part V, Appeals Assigned
to Court of Civil Appeals. 12 O.S. 2001 Ch. 15,
App. 1. Until the Court of Civil Appeals has made
its final disposition, all motions, petitions and
other paperwork shall be filed with the Clerk of
the Supreme Court who serves ex officio as the
clerk of the Court of Civil Appeals room B-2, State
Capitol, Oklahoma City, Oklahoma, 73105.
DONE BY ORDER OF THE SUPREME COURT
this 17th day of July, 2006
/s/
Joseph M. Watt
CHIEF JUSTICE
The following cases are assigned to the Court of
Civil Appeals Tulsa, Divisions 2 and 4. The judges
serving in the Tulsa Divisions are John F. Reif,
Keith Rapp, Jerry L. Goodman, and Jane P. Wiseman and Doug Gabbard, II. The judges sit in
three-judge panels which rotate periodically, but
all assigned cases will be decided by three of the
above named judges. Any party may seek disqualification of any judge pursuant to
Okla.Sup.Ct.R. 1.175, 12 O.S. 2001, Ch. 15, App. 1
and 20 O.S. 2001 §§ 30.3, 1401 and 1402.
100,843 Saber Acceptance Co. v. Ava Benson &
Donnell Atauvich.
101,038 Joseph G. Parker v. Global Health Initiative.
101,925 Clonnie Layman v. Evelyn Dugger.
102,033 Rachel A. Humphreys now Pereira v.
Daniel Humphreys.
102,036 In the Matter of the Guardianship etc.
Dana Lorentz v. Lorena Pohl and Vina
Wahle.
102,151 Howard & Connie Cloud v. the Heirs,
Executors, Administrators, Devisees,
Trustees, Successors or Assigns of
Frankie Brown, deceased et al.
102,264 Kimberly Gayle Lofton v. Sherman
Keith Lofton.
102,677 Amanda Christine Comstock v. Howard
Olin Comstock.
2101
102,703 St OK, ex rel Kim Holland v. Heritage
National Ins. Co & Steven Silverstein.
102,737 Debra Mae Forman v. Stephen Rudolph
Forman.
102,823 Angela D. Erwin v. Directv Inc.
100,957 Eduardo Ramirez v. Advance Food
Company & WCC.
102,961 Cynthia Lynne Parks v. James Randy
Parks.
103,051 Bancfirst v. Franklyn D. Spitz et al.
103,082 Melissa G. Early v. Charles D. Early.
103,275 Clarence Worrell v. Schwarz Ready Mix
Inc & WCC.
103,315 Phuoc Pham v. Wuu Jau Co & WCC.
103,292 (Cons w/103,327) Euel Donahou v.
Brian Chapman.
103,386 Cynthia Ashikian v. ST OK, Oklahoma
Horse Racing Comm.
103,471 Randy Elizondo v. Brent Electric, Co.,
Inc.
103,476 Sentco Construction Co. v. The Ross
Group Construction.
103,486 YMCA of Greater OKC. v. W. Cheryl
Moore, et al.
The proceedings are to be governed by Oklahoma Supreme Court Rules, Part V, Appeals
Assigned to Court of Civil Appeals. 12 O.S. 2001
Ch. 15, App. 1. Until the Court of Civil Appeals
has made its final disposition, all motions, petitions and other paperwork shall be filed with the
Clerk of the Supreme Court who serves ex officio
as the clerk of the Court of Civil Appeals room B2, State Capitol, Oklahoma City, Oklahoma,
73105.
DONE BY ORDER OF THE SUPREME COURT
this 17th day of July, 2006
/s/
Joseph M. Watt
CHIEF JUSTICE
2006 OK CIV APP 72
ROBERT J. DAVIS, an individual,
Plaintiff/Appellee, v. INDEPENDENT
SCHOOL DISTRICT NUMBER 89 OF
OKLAHOMA COUNTY a/k/a OKLAHOMA
CITY PUBLIC SCHOOLS,
Defendant/Appellant.
No. 101,002. March 28, 2006
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
2102
HONORABLE VICKI L. ROBERTSON,
TRIAL JUDGE
AFFIRMED
Jay F. McCown, QUICK & McCOWN, Oklahoma City, Oklahoma, for Appellee,
F. Andrew Fugitt, Laura L. Holmes, THE CENTER FOR EDUCATION LAW, INC., Oklahoma
City, Oklahoma, for Appellant.
OPINION BY JOHN F. REIF, JUDGE:
¶1 This appeal concerns a claim by Robert
Davis to recover damages he sustained in a
motor vehicle collision with a bus owned by
Independent School District No. 89 of Oklahoma County. The trial court entered judgment
on a jury verdict finding School District liable
and awarding Mr. Davis $98,000 in damages.
School District’s sole challenge to this judgment
on appeal is that Mr. Davis did not timely file
suit as provided in section 157(B) of the Governmental Tort Claims Act, 51 O.S.2001 and Revised
Supp. 2005 §§ 151 through 172.
¶2 Both in the trial court1 and here on appeal,
School District has argued that the claim Mr.
Davis submitted to School District on October 2,
2000, was deemed denied on December 31, 2000,
and is the date fixed by § 157(A) for School District to approve or deny the claim. School District points out that suit must be filed within 180
days of the denial of a claim as provided in
§ 157(B) of the Act, and stresses the filing of Mr.
Davis’ suit on February 20, 2002, was well over
180 days after December 31, 2000. In response,
Mr. Davis has maintained that the period in
which School District was required to approve
or deny his claim was tolled when School District’s insurance adjuster requested information
from Mr. Davis’ attorney on December 29, 2000,
two days before the School District contends the
claim was deemed denied. Mr. Davis relies on
case law that holds the period to approve or
deny the claim does not recommence until the
claimant responds to the request. Mr. Davis
notes his attorney responded to the request on
October 5, 2001, and that his suit was filed within 180 days of this date. Upon review, we agree
with Mr. Davis and affirm the judgment on the
jury verdict.
¶3 On December 29, 2000, School District’s
insurance adjuster wrote a letter to Mr. Davis’
attorney that states:
Please allow this letter to serve as a request
for status on the above mentioned case. We
have recently received correspondence from
Sooner Physical Therapy that indicates your
Vol. 77 — No. 20 — 7/29/2006
client has been released from treatment.
Please advise if you are in the position to
negotiate a bodily injury settlement.
I look forward to your response. If you
should have any questions or concerns, feel
free to contact me at the number below.
While not asking for any particular information,
the letter does say it should be considered “a
request for status on the . . . case.”
¶4 By making reference to a specific matter
about which the adjuster did possess information (the medical release of Mr. Davis), and by
seeking advice concerning the attorney’s “position to negotiate,” the letter is clearly asking for
confirmation of the release information and for
other information upon which to “negotiate a
bodily injury settlement.” It goes without saying
that the same information that would be important to negotiating a settlement would be important to reaching a decision whether to approve
or deny the claim.
¶5 In addition, the letter advises that the
adjuster is “look[ing] forward to your
response,” indicating that the adjuster expects
information to be provided concerning the “status” of the case, the medical release of Mr. Davis,
and Mr. Davis’ “position” on settlement. Considering the fact that this is a request by School
District’s authorized agent, Mr. Davis’ attorney
would have “a legitimate expectation to assume
that [the] request is made in good faith pursuit
of necessary information.” Bivins v. State ex rel.
Oklahoma Memorial Hospital, 1996 OK 5, ¶ 10, 917
P.2d 456, 461.
¶6 In Bivins, the Oklahoma Supreme Court
observed that “[i]n every public entities’ postnotice request for more information dwells its
implied declaration that the earlier notice is to
be regarded as deficient . . . and is hence, at best,
to be treated as only an inchoate filing.” Id. at
¶ 11, 917 P.2d at 462. “A post-notice request for
more complete information can never logically be
equated with the government’s silence, i.e. with
its lack of response which the statute requires to
be taken as the claim’s denial.” Id. (footnote
omitted). “[A]n agency’s post-notice request to
be better informed about the claim at hand
negates the efficacy of the earlier notice and eloquently signals an end of the initially triggered cycle
[to initiate] litigation.” Id.
¶7 The Court in Bivins also said, “[t]he time of
the completed submission [in response to a
request for more information] clearly must be
viewed as triggering anew the 90-day [decision
period].” Id. at ¶ 12, 917 P.2d at 462. “Once a
complete submission has been timely effected,
Vol. 77 — No. 20 — 7/29/2006
both the government and the claimant may reasonably expect to benefit from a full 90-day period
prescribed by law for investigation and processing to take place undisturbed by [litigation].” Id.
¶8 The Court found that a “[l]egitimate state
interest is furthered by a thorough pre-suit
scrutiny of the claim’s notice in order to protect
the public from unwarranted demands as well
as to advance for settlement those claims which
have merit and clearly warrant negotiation in
advance of litigation.” Id. at ¶ 13, 917 P.2d at 463
(emphasis added) (footnote omitted). “It is this
public-interest element which [dictates] that an
agency’s post-notice request for additional information must be . . . impressed with serious legal effect.”
Id. (footnote omitted).
¶9 If the letter of the School District’s insurance adjuster was sent in good faith, it could
have no other purpose than the production of
“more complete information” to evaluate the
merit of the claim and its suitability for disposition by negotiated settlement. Communications
like the letter in question must be accorded the
“serious legal effect” of a post-notice request for
additional information, lest they become a
common-place tactic to mislead claimants
concerning an agency’s position on a claim.
¶10 School District alternatively contends that
even if the adjuster’s letter did constitute a
request for more information that tolled the 90day decisional period, the Bivins case recognizes
a coordinate duty on a claimant to respond within a reasonable time. School District argues that
the written response by Mr. Davis’ attorney on
October 5, 2001, some ten months after the
adjuster’s letter, was not a response within a reasonable time.
¶11 The case of Wallace v. Board of County Commissioners of Tulsa County, 2000 OK CIV APP 131,
15 P.3d 985, involved a request made by the
county’s insurer for claimant to provide a
recorded statement and an unexplained sevenmonth delay by the claimant in providing the
statement. The county argued that “the
[claimant’s] unexplained delay in providing the
requested recorded statement for over seven
months after the initial request is patently unreasonable.” Id. at ¶ 17, 15 P.3d at 989. Citing the
absence of evidence in the record demonstrating
some resulting prejudice, Division III of the
Court of Civil Appeals stated it was “unwilling
to hold, as a matter of law, that the delay was so
unreasonable as to bar the . . . commencement of
suit.” Id. The Court ruled that the date of the
claimant’s compliance with the request began “a
new 90-day period for action on the claim [and
2103
claimant’s] suit, filed within 180 days after expiration of the new 90-day period, was timely
commenced.” Id. at ¶ 18, 15 P.3d at 989.
¶12 In the case at hand, School District has not
articulated any prejudice that attended the tenmonth delay in providing “settlement information” in response to the letter of School District’s
insurance adjuster. Moreover, the summary
judgment record contains an affidavit that
recounts the steps taken by Mr. Davis’ attorney
in the ten-month period to acquire information
for the response. Like the court in Wallace, we
cannot conclude that the ten-month delay in
responding to School District’s request is so
unreasonable as a matter of law2 to bar commencement of Mr. Davis’ suit. Also like the court
in Wallace, we hold Mr. Davis’ compliance with
the request of School District’s insurance
adjuster on October 5, 2001, started a new 90day period for a decision on his claim and Mr.
Davis’ suit, filed within 180 days of the
expiration of the new 90-day period, was timely
commenced under § 157(B).
¶13 AFFIRMED.
RAPP, V.C.J., and GABBARD, P.J., concur.
1. School District presented this time-bar issue to the trial court in
a motion to dismiss and a motion for summary judgment, both of
which were denied at the time they were heard and upon their reurging by School District at the beginning of trial. School District again
raised these motions at the conclusion of trial when its counsel (1)
advised the court “subject to the Court’s prior discussions regarding
[School District’s] motions, the defendant rests” and (2) “[moved] for
directed verdict on liability and damages . . . for the reasons that I’ve
stated earlier.” The trial court overruled School District’s motion for
directed verdict.
2. In Bivins, the Oklahoma Supreme Court observed that “a public
agency is not without means to protect itself from an open-ended
effect which may flow from an initial notice . . . that is to be supplemented at the agency’s request.” Bivins, 1996 OK 5, ¶ 17, 917 P.2d at
464. The Supreme Court stated the agency “may (a) direct that supplemental information must be received on or before a stated date and
(b) make it clear that if neither submission nor satisfactory explanation
[for non-submission] is timely made, the deficient claim’s notice will
stand denied at the end of the initially triggered 90-day period or at
some other date that follows the deadline for submission of supplemental data.” Id. School District did nothing to avoid the open-ended
response time that its letter of December 29, 2000, allowed.
2006 OK CIV APP 73
BRUCE DAVID GAMBILL,
Plaintiff/Appellant, v. DONETTA
GAMBILL, Defendant/Appellee.
No. 101,183. March 28, 2006
OSAGE COUNTY, OKLAHOMA
HONORABLE GARY MAXEY, TRIAL JUDGE
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR FURTHER
PROCEEDINGS
2104
Bruce David Gambill, Pawhuska, Oklahoma,
Pro se,
Bill R. Scarth, SCARTH & RAHMEIER,
Claremore, Oklahoma, for Defendant/Appellee.
OPINION BY JANE P. WISEMAN, PRESIDING
JUDGE:
¶1 Father, Bruce David Gambill, appeals from
a decree of divorce. The issue presented is
whether the trial court erred in calculating child
support for the parties’ minor children. Upon
review of the record on appeal and applicable
law, we find that the trial court did abuse its discretion when it failed to consider farm income
when determining Mother’s gross income for
child support computations but did not err in
refusing to consider an adoption subsidy
and social security survivors’ benefits when
calculating child support payments.
FACTS AND PROCEDURAL
BACKGROUND
¶2 Father and Mother, DonEtta Gambill, were
married on April 6, 1995. The couple adopted
two children during the course of their marriage, M.A.G., born January 19, 1998, and
G.W.G., born on March 8, 1999. Father filed a
petition for divorce on October 3, 2003. Following trial, the court divided the marital estate,
awarded sole legal custody of the minor children to Mother with visitation to Father, and
ordered Father to pay $1,165.93 monthly for
child support.
¶3 On appeal, Father asserts that the trial
court erred in computing child support. The trial
court found that Father’s monthly income is
$7,746, consisting of $7,322.92 in regular monthly salary and $440.79 in excess benefit
allowance. The court found Mother’s average
monthly income to be $1,609.59 from her work
as a real estate broker.
¶4 Father testified at trial that Mother had
received $9,000 the previous year from a soybean crop harvested from a farm, part of which
was owned by Mother prior to the parties’ marriage and part of which was acquired during the
marriage, and that Mother receives $350 per
month in rent from a farm house that Mother
owned prior to marriage. Father testified that
the parties also receive an adoption subsidy of
$300 per month per child from the State of Oklahoma and social security survivors’ benefits of
“roughly a little over $300 total for both children.” Mother testified that, at the time of trial,
she was receiving the adoption subsidy and
social security payments which together totaled
$912 per month.
Vol. 77 — No. 20 — 7/29/2006
¶5 In determining the amount of income
attributable to Mother for the purpose of computing child support, the trial court did not
include the crop or rental income, the adoption
subsidy, or the social security benefits. Father
appeals.
STANDARD OF REVIEW
¶6 Child support proceedings are matters of
equitable cognizance. Burgess v. Burgess, 2000
OK CIV APP 122, ¶ 10, 15 P.3d 526, 528. On
appeal from matters involving child support,
this Court will affirm the order of the trial court
“if it is just and equitable.” Id. “We may only
reverse the trial court’s computation of child
support if it is clearly against the weight of the
evidence.” Andersen v. Fellers, 1998 OK CIV APP
53, ¶ 9, 960 P.2d 851, 854.
¶7 Father asserts the trial court should have
considered the government benefits paid on
behalf of the children as a credit against his child
support obligation, as part of the gross child
support of both parties, or as income attributable to Mother. The question of whether the trial
court properly declined to consider the government benefits presents a question of law. See Dye
v. White, 1999 OK CIV APP 20, ¶ 1, 976 P.2d 1086,
1086. “Issues of law are reviewed de novo since
an appellate court has plenary, independent and
non-deferential authority to reexamine a trial
court’s legal rulings.” K & H Well Serv., Inc. v.
Tcina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223.
ANALYSIS
I. Crop and Rental Income
¶8 Father asserts that the trial court erred in
computing child support by excluding income
Mother receives for crops and rental income.
Father states that the parties owned an incomeproducing farm property, part of which,
including a rent house, was Mother’s separate
property, and part of which was jointly acquired
during the marriage.
¶9 Mother included the following in her pretrial financial declaration as property individually owned by her: “Farm house, valued at
approximately $65,000, with no land. It sits on a
lot, and continues to be in my name, only, DON
ETTA PATTERSON. At this time, there is no debt
associated with this property.” The same document also contains the following statements
under the heading “Business Interests”: “(a)
[Mother] continues to maintain her separate
property farm house as a rental property. (b) The
income generated from the farm house rental is
considered by her to be her separate property
income. (c) It is believed that the characteristic of
Vol. 77 — No. 20 — 7/29/2006
this rental property is her ‘separate property.’”
Mother retained both the farm and the farm rent
house under the divorce decree.
¶10 “All child support shall be computed as a
percentage of the combined gross income of
both parents.” 43 O.S. Revised Supp. 2005
§ 118(E)(1). Gross income “includes earned and
passive income from any source” except income
that is specifically excluded under the statute. 43
O.S. Revised Supp. 2005 § 118(E)(2)(a)(1).
Earned income is “income received from labor,
or the sale of goods or services and includes, but is
not limited to, income from: (a) salaries, (b)
wages, (c) commissions, (d) bonuses, and (e)
severance pay.” 43 O.S. Revised Supp. 2005
§ 118(E)(2)(a)(2) (emphasis added). Passive
income is “all other income and includes, but is
not limited to, income from: (a) dividends,
(b) pensions, (c) rent, (d) interest income,
(e) trust income, (f) annuities, (g) social security
benefits, (h) workers’ compensation benefits, (i)
unemployment insurance benefits, (j) disability
insurance benefits, (k) gifts, (l) prizes, and
(m) royalties.” 43 O.S. Revised Supp. 2005
§ 118(E)(2)(a)(3) (emphasis added). “For income
from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a
partnership or closely held corporation, ‘gross
income’ is defined as gross receipts minus ordinary and necessary expenses required for selfemployment or business operations.” 43 O.S.
Revised Supp. 2005 § 118(E)(3)(a).
¶11 Under the terms of Section 118, income
received by Mother for crops or rental should
have been included in her gross income for purposes of child support computation. Mother
asserts on appeal that tax returns filed by the
parties prior to the divorce show that the farm
house rental and the crops resulted in losses for
tax purposes. Mother points to six income tax
returns that show a farm income loss and four
tax returns that show a rental income loss.
¶12 Although previous tax returns indicate a
loss for both the crop sales and the rental property, the presentation of the tax returns alone
cannot end our inquiry into Mother’s gross
income. “Taxable income on an income tax
return does not control ‘income’ for child support purposes.” Minnich v. Minnich, 1995 OK
CIV APP 60, ¶ 9, 898 P.2d 747, 750. The Court of
Appeals in Minnich went on to say, “[Section]
118(B)(3) requires the court to carefully review
income and expenses from the operation of a
business and determine an appropriate level
of gross income to be used to determine
the amount available to use in calculating child
support.” Id.
2105
¶13 The record does not reflect the trial court’s
decision on Father’s request to include the crop
income and farm house rental in Mother’s gross
income for purposes of calculating child support. We find that the trial court abused its discretion in failing to determine if Mother receives
any positive income from the farm or rental
property after expenses. Mother testified that no
money was owed on the rental property. She
admitted receiving money for the house rental
and the crops, but claims there is no positive
cash flow from either enterprise because expenses exceed income. Other than the tax returns,
Mother does not disclose the amount of money
received from the crops and rent payments in
relation to her expenses. We must remand to
determine the ordinary and necessary expenses
attributable to these sources of income received
by Mother and to determine if Mother has any
positive income from the crops or rental property that should properly be used to calculate
child support.
II. Adoption Subsidy and Social Security Benefits
¶14 Father asserts that the trial court erred
when it failed to consider the adoption subsidy
and social security survivors’ benefits that
Mother receives on behalf of the children. We
disagree.
¶15 Congress enacted the Adoption Assistance and Child Welfare Act of 1980 to provide
adoptive parents financial assistance to adopt
children with special needs. See Laws v. State of
Oklahoma ex rel. Dept. of Human Serv., 2003 OK
CIV APP 97, ¶ 3, 81 P.3d 78, 80. In response, the
State of Oklahoma enacted the Oklahoma Adoption Assistance Act which required the Department of Human Services to establish and administer an ongoing program of adoption assistance
for eligible special needs children. 10 O.S.
Revised Supp. 2005 § 7510-1.3(A). Section 75101.3(B) authorizes assistance in the form of “Medicaid coverage, a monthly adoption assistance
payment, reimbursement of nonrecurring adoption expenses, special services, or any combination of such benefits.” Mother receives an adoption subsidy of $600 per month from the State of
Oklahoma for the children, and, according to
Father, the children receive health care benefits
through the SoonerCare program.
¶16 Although we are not aware of any Oklahoma decisions that have addressed the treatment of adoption subsidies when calculating
child support, courts in other jurisdictions have
addressed the issue. In In re Marriage of Newberry, 805 N.E.2d 640 (Ill. App. Ct. 2004), the Appellate Court of Illinois found that adoption subsi2106
dies should be treated as belonging to the children, not the parents. The Court noted that Illinois law provides a deviation from its statutory
child support guidelines if a court finds that the
child support required to be paid under the
guidelines would be inappropriate based on the
financial resources and needs of the child. Id. at
643. The Court determined, under the circumstances before it, that the trial court’s downward
deviation from the guidelines in calculating the
child support obligation of the father was appropriate in light of the monthly adoption subsidy
that was a resource of the children available for
their support. In reaching its conclusion, the
Court noted that the parties’ net incomes were
approximately equal. Id. at 644.
¶17 In Strandburg v. Strandburg, 664 N.W.2d
887 (Minn. Ct. App. 2003), the Court of Appeals
of Minnesota also found that an adoption subsidy is a resource attributable to the child for
purposes of determining child support. The
Court noted that by state statute a district court
is required to consider the financial needs and
resources of the child. Id. at 890. The Court held
that “the treatment of the adoption subsidy and
whether the subsidy affects the support obligation depends on the needs of the child and the
financial circumstances of the obligor and obligee.” Id. at 891.
¶18 In In re Hennessey-Martin, 855 A.2d 409
(N.H. 2004), the New Hampshire Supreme
Court found that a trial court properly declined
to credit a state adoption subsidy against the
child support obligation of the non-custodial
parent. The Court stated,
Forcing a custodial parent to accept the
adoption assistance payment as a substitute for the non-custodial parent’s child
support would negate the supplementary
effect of the adoption subsidy because it
would transform the adoption subsidy
into the exclusive means of support and
disregard the increased costs associated
with the care of “special needs” children.
Id. at 413.
¶19 In Hamblen v. Hamblen, 54 P.3d 371 (Ariz.
Ct. App. 2002), the Court of Appeals of Arizona
found that an adoption subsidy is for the benefit
of the child and should be considered as income
attributed to the child, not as a credit against
child support. The Court stated the following:
[T]he subsidy is but an addition to a parent’s
obligation of financial support. If this subsidy were credited against the parent’s
child-support obligation it would in effect,
Vol. 77 — No. 20 — 7/29/2006
eliminate the supplementary effect of the
subsidy. And, once the supplementary effect
of the subsidy is taken, the effect of its incentive is undermined, leaving the custodial
parent of the subsidized child with reduced
if any support and greater difficulty in
meeting the child’s particular needs.
Id. at 375.
¶20 In In re Marriage of Bolding-Roberts, 113
P.3d 1265 (Colo. Ct. App. 2005), the Colorado
Court of Appeals declined to reduce a father’s
child support obligation based on his child’s
adoption subsidy. The Court noted that the
adoption subsidy was a supplement which was
intended to allow the adoptive parents to
address the special needs of the children. The
Court reasoned:
A child support order is calculated to serve
the best interests of children and to mitigate
the potential harm to them caused by the
dissolution of marriage. . . . Had the parties
not separated, the child would have enjoyed
the benefit of both parents’ incomes, as well
as the subsidy. Thus, the underlying intent
of the child support statute is best served by
declining to offset a noncustodial parent’s
support obligation by the amount of an
adoption subsidy or to consider the subsidy
as a factor that may diminish the child’s
basic needs within the meaning of [Colorado statutory law].”
Id. at 1268 (citation omitted).
¶21 We find persuasive the decisions finding
that an adoption subsidy is income attributable
to the child. The adoption subsidy is meant to
supplement adoptive parents’ income for the
benefit of the special needs child. The subsidy is
in no sense attributable to either parent. It is
paid for the benefit of the children and is not a
substitute for a parent’s income.
¶22 As to the social security survivors’ benefits received by M.A.G. and G.W.G. due to the
death of their natural father, we find that these
benefits are also income attributable to the children. We note that, although 43 O.S. Revised
Supp. 2005 § 118(E)(2)(a)(3) includes “social
security benefits” under “passive income,” the
social security benefits in question here were not
earned or accrued by either Father or Mother
but by the children’s natural father and therefore
do not fall under this provision. “’Social Security benefits are not gratuitous, but are earned,
and they constitute, in effect, insurance payments substituting for lost earning power.’”
Merritt v. Merritt, 2003 OK 68, ¶ 18, 73 P.3d 878,
Vol. 77 — No. 20 — 7/29/2006
884 (quoting Nibs v. Nibs, 1981 OK 25, ¶ 1, 625
P.2d 1256, 1257 (Lavender, J., dissenting)).
¶23 In Graham v. Graham, 1988 OK CIV APP 9,
761 P.2d 1298, the trial court found that a father
did not need to contribute to the support of the
parties’ adopted child because the child received
social security benefits attributable to her
deceased biological mother. The Court of
Appeals reversed the decision of the trial court,
finding that the trial court erred because
its order, in effect, required the 12 year-old
daughter to support herself.
¶24 A similar situation arose in In re Marriage
of Beachem, 867 P.2d 1071 (Kan. Ct. App. 1994),
where the Kansas Court of Appeals found that
an adoptive father was not entitled to a reduction in his child support obligation because his
adopted child received social security benefits as
the result of her natural father’s death. The
Court found that the adoptive father has a duty
to support his child and the social security payments the child receives are not directly or indirectly attributable to the adoptive father. The
Court stated, “Appellant has a duty to support
his child, and his duty is not relieved because of
payments received by the child which are in no
way attributable to him.” Id. at 1074. The Court
further found that the benefit payments could
not be included in the mother’s income when
calculating child support.
¶25 Having found that the adoption subsidy
and survivors’ benefits are income attributable
to the children, we also recognize that Section
118 makes no provision for considering the
income or resources of the child when computing child support. The trial court, under 43 O.S.
Revised Supp. 2005 § 118(E)(1), must compute
child support “as a percentage of the combined
gross income of both parents,” and the only relevant gross incomes are those of Mother and
Father.
¶26 Gross income includes earned and passive income, except income specifically excluded under Section 118(E)(2)(b)(1), which excludes
child support received for children not before
the court. Gross income also does not include
“benefits received from means-tested public
assistance programs including, but not limited
to: (a) Temporary Assistance for Needy Families
(TANF), (b) Supplemental Security Income (SSI),
(c) Food Stamps, and (d) General Assistance and
State Supplemental Payments for Aged, Blind
and the Disabled.” 43 O.S. Revised Supp.
§ 118(E)(2)(b)(2).
¶27 Neither the adoption subsidy nor the
social security survivors’ benefits is based on the
2107
income or means of Mother or Father. The subsidy and survivors’ benefits are not specifically
excluded from inclusion as gross income by subsection (b). However, the benefits also do not fit
into any classification of income under the terms
of the parents’ earned or passive income.
Because the adoption subsidy and social security survivors’ benefits are not income attributable
to the parents but income of the children not
specifically addressed in Section 118, we must
conclude that neither the adoption subsidy nor
the social security survivors’ benefits can be considered in the income attributable to Mother for
the purpose of calculating child support.
¶28 Any consideration of the adoption subsidy or social security survivors’ benefits under
the child support guidelines could only be made
under Section 118(B) which allows for
deviations from the guidelines under the
following circumstances:
The district or administrative court may
deviate from the amount of child support
indicated by the child support guidelines if
the amount of support so indicated is unjust,
inequitable, unreasonable, or inappropriate
under the circumstances, or not in the best
interests of the child. If the district or administrative court deviates from the amount of
child support indicated by the child support guidelines, the court shall make specific findings of fact supporting such
action.
(Emphasis added.) No deviation from the
guidelines appears warranted because there is
no indication that the failure to include the
adoption subsidy or survivors’ benefits in calculating income results in an amount of support
that is “unjust, inequitable, unreasonable, or
inappropriate under the circumstances.”
¶29 Although Father alludes to the fact that
M.A.G. and G.W.G. do not have special needs,
Mother testified that G.W.G. suffers from attention deficit disorder with hyperactivity and anxiety disorder. She also testified she has taken
G.W.G. to “[a]pproximately a hundred to 150”
sessions with psychologists and she must transport him one or two times a week to various specialists and experts. She also received a recommendation to place G.W.G. in a private school to
obtain help for the difficulties he was encountering. Mother also testified that M.A.G. has developmental problems. Based on these facts, we
cannot say that the child support award in relation to the extra money the children receive from
the adoption subsidy and survivors’ benefits
renders the amount of the child support under
2108
the guidelines “unjust, inequitable, unreasonable, or inappropriate under the circumstances,
or not in the best interests of the child[ren].”
¶30 We find that the trial court did not err in
refusing to consider either benefit for the purpose of child support computation.
III. Insurance
¶31 Father claims that the trial court’s decision
to require him to continue to pay for health
insurance benefits for the children works as a
penalty against him because it requires double
coverage. He states, “All of the children’s medical needs were paid or covered by Soonercare
through the Department of Human Services as
an adoption subsidy and the Pawnee Benefit
Package though the Indian Health Service
because both children and [Father] are Native
American participants.”
¶32 We cannot say that the trial court abused
its discretion in requiring Father to continue to
pay for private health care coverage. Father fails
to point to any portion of the record which indicates that the private health coverage is not
needed or that health care coverage provided by
the State of Oklahoma or Indian Health Service
meets all of the required health care needs of the
children.
IV. Mother’s request for attorney fees on appeal
¶33 In seeking appeal-related attorney fees,
Mother points out that Father is proceeding pro
se and that she does not enjoy the same financial
advantage. The fact that Father is not paying an
attorney to prosecute this appeal does not
require him to pay Mother’s appeal-related
expenses. There is no indication that Father has
taken any action which complicated the matter
during the appeals process or that the appeal
was frivolous or lacking in merit. We find that
Mother should bear her own attorney fees for
this appeal. See Stepp v. Stepp, 1998 OK 18, ¶ 20,
955 P.2d 722, 726-27 (holding parties responsible
for their own appeal-related attorney fees where
no compelling equities existed in favor of either
party).
CONCLUSION
¶34 We find that the trial court abused its discretion in failing to fully account for Mother’s
income from a farm and a rental house when
determining her gross income for child support
purposes. We also find that the trial court did
not err when it refused to offset an adoption
subsidy and social security survivors’ benefits
against Father’s child support obligation or to
include the benefits as income in computing
child support. We further find that the trial court
Vol. 77 — No. 20 — 7/29/2006
did not abuse its discretion when it required
Father to pay for health care insurance for the
children. Accordingly, the order of the trial court
is affirmed in part, reversed in part, and
remanded for further proceedings.
¶35 AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED FOR FURTHER
PROCEEDINGS.
GOODMAN, J., concurs, and GABBARD, J.
(sitting by designation), concurs in part and dissents in part.
GABBARD, J., concurring in part and dissenting in part:
¶1 I dissent to the Majority’s opinion that this
case should be remanded for the purpose of taking additional evidence on the issue of the rent
and farm income.
¶2 Mother testified that she had no net income
from her rent house and farm crops because
expenses exceeded income. To support this
statement, she produced tax returns for the last
six years. Father had the opportunity to crossexamine her regarding this evidence, and to
present evidence on his own behalf. His contention that she receives an annual income of
approximately $9,000 did not take into account
her expenses and was otherwise unsupported
by any documentation. The trial court had sufficient evidence to make a decision regarding this
issue, and decided in Mother’s favor. When
there is conflicting evidence on an issue of fact,
we defer to the trial court, which is in the best
position to observe the behavior and demeanor
of the witnesses and to gauge their credibility.
Mueggenborg v. Walling, 1992 OK 121, 836 P.2d
112. The trial court was persuaded by Mother’s
testimony and evidence, and was unpersuaded
by Father’s testimony.
¶3 Because the trial court’s decision on this
issue is supported by the greater weight of the
evidence, I find no reason for remand. I would
affirm in toto.
2006 OK CIV APP 74
STATE OF OKLAHOMA, ex rel., C.
WESLEY LANE, Plaintiff/Appellee, v.
SEVEN HUNDRED TWENTY FIVE
DOLLARS ($725.00), Defendant. OLIVER
THOMAS STRINGER, Claimant/Appellant.
No. 101,756. May 16, 2006
Vol. 77 — No. 20 — 7/29/2006
HONORABLE BRYAN C. DIXON, TRIAL
JUDGE
AFFIRMED
Beverly A. Palmer, ASSISTANT DISTRICT
ATTORNEY, Oklahoma City, Oklahoma, for
Plaintiff/Appellee,
Oliver Thomas Stringer, Helena, Oklahoma,
Appellant Pro Se.
JUDGE:
¶1 In this forfeiture action, Oliver Thomas
Stringer (Claimant) appeals the denial of his
motion to vacate a default judgment in which
the trial court ordered forfeiture of $725 to the
State of Oklahoma (State).
¶2 Claimant was stopped on February 28,
2000, for traffic violations, and during a subsequent search of his vehicle, approximately 75
pounds of cocaine were discovered. Claimant
and his passenger were arrested, and the vehicle
and $725 in cash were confiscated.1 On March
10, 2000, State filed this forfeiture action as to
both the vehicle and the cash and mailed notice
to Claimant and the passenger. Claimant’s mail
was signed for by his wife, Irene Stringer, on
April 24, 2000, and passenger signed for his mail
on March 17, 2000. Notice was also given by
publication on March 13, 2000, and Claimant
was given additional notice by personal service
in the Oklahoma County jail on May 4, 2000,
after being arrested on an outstanding warrant
on April 27, 2000. Claimant was subsequently
convicted in 2001 of trafficking and sentenced to
30 years in the penitentiary.
¶3 No entry of appearance, motion, response
or answer was filed by either Claimant or passenger. On May 5, 2000, the trial court granted
default judgment to State and ordered forfeiture
of the vehicle and the $725 to State.
¶4 On December 15, 2004, Claimant filed a
motion to vacate the default judgment under 12
O.S. Rev. Supp. 2005 § 1031 but did not specify
any subdivision of that section as applicable.
State filed its response on December 29, 2004.
The trial court denied the motion to vacate without a hearing on January 12, 2005, and Claimant
appeals this denial.
¶5 As grounds for reversal, Claimant asserts
lack of due process in obtaining the original
judgment granting forfeiture of the money,
insufficient evidence linking the money to any
forfeitable substances, lack of due process in 63
O.S. Rev. Supp. 2005 § 2-503(A)(7)’s2 imposition
of the burden on Claimant to rebut the pre-
2109
sumption of forfeitability based on the money’s
close proximity to forfeitable substances, and
tolling of the statute of limitations based
on Claimant’s legal disability due to his
incarceration.
¶6 A request to vacate a judgment is
addressed to the sound legal discretion of the
trial court. Gearhart Indus., Inc. v. Grayfox Operating Co., 1992 OK CIV APP 44, ¶ 7, 829 P.2d 1005,
1007. The standard of review of a trial court
determination granting or denying a motion or
petition to vacate is therefore whether the trial
court abused its discretion. Patel v. OMH Med.
Ctr., Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194.
¶7 On the issue of due process, Claimant does
not dispute that State met the statutory provisions of 63 O.S. Rev. Supp. 2005 § 2-506 in
obtaining the order of forfeiture. He takes issue
with State’s failure to notify him of the default
proceedings, failure to have Claimant present at
the default hearing, and failure to produce evidence at the default hearing that would warrant
forfeiture of the money at issue. Claimant does
not assert ignorance of or lack of notice of the
pending forfeiture proceedings, and the record
shows three independent, successful services of
process on Claimant to notify him of the 45-day
period under 63 O.S. Rev. Supp. 2005 § 2-506(D)
to respond to the notice by verified answer and
lay claim to the property.3
¶8 Although notice of Claimant’s rights under
§ 2-506(D) was given, Claimant did not respond
within the statutory period. If no timely verified
answer is filed, the court may proceed to determine the forfeiture issues by default; pursuant to
63 O.S. Rev. Supp. 2005 § 2-506(E), a hearing is
required only if a verified answer is filed.4
Claimant was notified of his right to object to the
forfeiture and of his right to be heard in opposition to State’s request for forfeiture but failed to
exercise these rights. We therefore conclude that
Claimant has failed to show any due process
violation in the entry of this forfeiture judgment
by default.
¶9 On the issues of lack of evidence linking
the money to any forfeitable substances and lack
of due process in requiring him to rebut the
“close proximity” presumption of forfeitability,
Claimant cites the Court of Civil Appeals decision in State ex rel. Harris v. One Thousand Eight
Hundred Seventy-Seven Dollars ($1877.00), Carl
Demetrius Mitchell, Claimant, Case No. 99,377,
July 2004. In Mitchell, the Court of Civil Appeals
determined that the rebuttable presumption that
money is forfeitable when found in close proximity to forfeitable substances was unconstitu2110
tional and that State must make a prima facie case
without this presumption in order to establish
the basis for the requested forfeiture.
¶10 The Oklahoma Supreme Court granted
certiorari on March 22, 2005, and issued its opinion on March 7, 2006 (State of Oklahoma, Timothy
H. Harris v. One Thousand Two Hundred SixtySeven Dollars ($1267.00), 2006 OK 15, 131 P.3d
116). In a unanimous decision, the Supreme
Court rejected the argument that § 2-503(A)(7)
unconstitutionally allows State a rebuttable presumption of forfeitability based on “close proximity” without evidence to establish a prima facie
case. State in Mitchell moved for summary judgment and submitted evidentiary materials in
support of its motion, and the trial court granted
its motion. Mitchell asserted on appeal that forfeiture based on summary adjudication violated
due process. The Supreme Court disagreed:
The State’s evidentiary material — the
police officer’s affidavit and the police
department’s laboratory analysis of the
seized substances — establishes prima facie
the requisite statutory connection that provides support for forfeiture. . . . The quantum of the seized forfeitable substances
found in close proximity to the money
($1,267.00) was amply sufficient proof to
shift to Mitchell the burden to show by
counter-affidavit circumstances sufficient
to raise a disputed issue of fact. Mitchell
accepted as true all the facts proffered by
the State’s affidavit when he chose not to
counter that affidavit’s allegations by evidentiary material of his own.
Id. at ¶ 27, 131 P.3d at 126 (footnote omitted).
¶11 Although the instant case did not involve
summary process, we are confronted with the
same arguments by Claimant as those raised by
Mitchell and rejected by the Supreme Court.
When it filed its “Notice of Seizure and Intended Forfeiture” in this case, State attached and
submitted the arresting police officer’s affidavit
setting out the factual basis for its forfeiture
request. We therefore find, pursuant to Mitchell,
that this constitutes a prima facie showing of the
nexus between the seized cocaine and the
money found in close proximity. There is no
basis to conclude that the record lacks sufficient
evidence on which to grant forfeiture.
¶12 Under the holding in Mitchell, the burden
then shifts to Claimant to rebut this showing,
and, as in Mitchell, Claimant, in defaulting on
State’s forfeiture claims, chose not to answer
State’s claims or to counter the officer’s affidavit.
Vol. 77 — No. 20 — 7/29/2006
With State’s affidavit before it establishing a
prima facie case and nothing from Claimant to
rebut it, the trial court was correct in granting
default judgment to State, and we reject
Claimant’s arguments of lack of evidence and
lack of due process.
¶13 Claimant’s final contention addresses
State’s assertion that Claimant’s motion to
vacate is barred by the time limitations of 12
O.S.2001 § 1038. Although Claimant did not
specify which of the nine subdivisions of § 1031
he was relying on, and disregarding the question of whether he has complied with the
requirements of 12 O.S.2001 § 10335 of seeking
vacation by petition and service of process, in
waiting four years and 7 months before filing his
request for relief, he was well beyond the time
limits specified in § 1038. Claimant states in his
brief that “[a]fter spending some time researching this issue, through due diligence, [he] decided to commence his action.” He urges us to find
that under 12 O.S.2001 § 96, the statute of limitations applicable to his motion is tolled because
he is under a legal disability due to his incarceration. Section 96 provides:
If a person entitled to bring an action
other than for the recovery of real property,
except for a penalty or forfeiture, be, at the
time the cause of action accrued, under any
legal disability, every such person shall be
entitled to bring such action within one (1)
year after such disability shall be removed .
...
¶14 It is unclear whether this provision, with
its exception for “forfeitures,” could be applied
to this case. However, we have found no Oklahoma court decisions extending the “legal disability” provisions of § 96 to prisoners or
inmates. In Miskovsky v. Gray, 109 F. App’x 245,
249 (10th Cir. 2004), the Tenth Circuit held:
We reject plaintiff’s claim that Oklahoma law tolls the two-year limitations period during his confinement. As plaintiff has
conceded, the Oklahoma Supreme Court
has never squarely addressed the prisonertolling issue, and we are not convinced by
plaintiff’s arguments regarding Okla. Stat.
Tit. 12, § 96. We also note that we have previously rejected similar prisoner-tolling
arguments in several unpublished orders
and judgments applying Oklahoma law. . . .
Although these prior unpublished decisions
are not binding precedent, in the absence of
any Oklahoma authority squarely on point,
we will continue to follow their reasoning.
Vol. 77 — No. 20 — 7/29/2006
(Footnote omitted.)
¶15 We find Claimant’s argument unpersuasive: he has presented no factual underpinning
or justification for a delay of more than four and
a half years nor any legal argument for the inclusion of incarceration with other time-honored
legal disabilities such as minority or mental
incapacity. To hold otherwise would extend the
statute of limitations until one year after
Claimant’s release, which could be in the year
2032. We agree with State’s argument in its
response to the motion to vacate that Claimant’s
request to set aside the judgment was untimely
and barred by the provisions of § 1038, and we
decline to extend the “legal disability” provision
of § 96 to prisoners to toll limitations periods.
¶16 We conclude for the above reasons that
the trial court did not abuse its discretion in
refusing to vacate this judgment, and we affirm
its decision.
¶17 AFFIRMED.
GOODMAN, J., and RAPP, V.C.J. (sitting by
designation), concur.
1. Although Claimant seeks recovery of the full $725, it is undisputed that only $379 belonged to Claimant; the remaining $346
belonged to the passenger and cannot be claimed by Claimant.
Claimant does not contest the forfeiture of the vehicle.
2. Although 63 O.S. § 2-503(A)(7) has been amended since the forfeiture in 2000, the substantive portion remains unchanged, and the
burden of proof remains with a claimant.
3. Title 63 O.S. Rev. Supp. 2005 § 2-506(D) provides:
Within forty-five (45) days after the mailing or publication of the
notice, the owner of the property and any other party in interest
or claimant may file a verified answer and claim to the property
described in the notice of seizure and of the intended forfeiture
proceeding.
Although § 2-506 has been twice amended since 2000, subsection (D)
remains unchanged.
4. Subsection E also remains unchanged by the amendments to §
2-506.
5. Under § 1033, if Claimant is seeking to vacate this forfeiture on
grounds stated in subdivisions 2, 4, 5, 6, 7, 8, or 9 of Section 1031, he
must proceed by petition, verified by affidavit, setting forth the judgment to be vacated, the grounds for vacating it, and his defense to the
original action, and he must issue summons and serve it on the opposing party “as in the commencement of a civil action.”
2006 OK CIV APP 75
JIMMY L. VEITH and COMPSOURCE
OKLAHOMA, Petitioners, v. KARA D.
(VAILS) OGBURN and THE WORKERS’
COMPENSATION COURT, Respondents.
No. 101,824. May 16, 2006
PROCEEDING TO REVIEW AN ORDER OF
A THREE-JUDGE PANEL OF THE
WORKERS' COMPENSATION COURT
2111
HONORABLE CHERRI L. FARRAR, TRIAL
JUDGE
SUSTAINED
Donald A. Bullard, BULLARD & HOEHNER,
P.C., Oklahoma City, Oklahoma, for Petitioners,
John Colbert, Ardmore, Oklahoma, for Respondent.
OPINION BY KEITH RAPP, VICE CHIEF
JUDGE:
¶1 Petitioners, Jimmy L. Veith, employer, and
Compsource Oklahoma seek review of an order
of a three-judge panel of the Workers’ Compensation Court which affirmed the trial court’s
finding that Claimant sustained a compensable
injury. The single issue on appeal is whether
Claimant sustained an accidental personal
injury arising out of and in the course of her
employment.
BACKGROUND FACTS
¶2 Claimant was employed by attorney,
Jimmy Veith, as a legal assistant in his law office
located in Ardmore, Oklahoma. On the morning
of May 20, 2004, Claimant stepped in a hole at
the edge of the street and tripped and fell as she
was walking from a parking lot to begin her
work at the law office. She filed her Form 3 on
June 2, 2004, alleging injury to both knees.1 Veith
initially accepted the claim, but later denied that
Claimant’s injury arose out of and in the course
of her employment. Veith maintained that
Claimant’s injury was not compensable because
the risk responsible for her injury was personal
and there was no causal connection between her
injury and the requirements of her employment.
¶3 Testimony at trial revealed that Veith’s law
office was located in a house that had been converted into a business. A portion of the house’s
former front yard had been paved to provide a
small parking area (four to five spaces) at the
front entrance of the law office. Claimant, a sixyear employee of the law office, described
Veith’s practice as “high volume.”
¶4 Claimant testified that at the time she started working at the law office both Veith and her
immediate supervisor, Delores Jeans, had directed her to park her vehicle in a lot located across
the street from the office in order to keep the
spaces in front of the law office available for
Veith’s clients. There was a grassy area behind
the office, where some employees parked, but
Claimant had never parked there.2
¶5 The lot across the street where Claimant
always parked was owned by a company called
2112
Armorite, which, along with other tenants, occupied a building situated on the lot. During the
six years Claimant worked at the law office, it
was her practice to park in the Armorite lot,
walk across the street, and then enter the law
office through the front door.
¶6 Veith’s wife, who acted as his office manager, testified on his behalf. She denied that anyone at the office specifically had directed
Claimant to park in the Armorite lot, but did not
dispute Claimant’s assertions that Veith knew
some of his office employees parked there and
acquiesced in their use of the lot.
¶7 The record contains undisputed evidence
that Veith did not own or lease the parking lot
and had no responsibility to maintain it. It is also
undisputed that (1) Claimant parked in the
Armorite lot on a daily basis; (2) one of her coworkers parked there; and (3) at times, Veith’s
clients parked there. There is no evidence in the
record explaining the nature of the relationship
between Armorite and Veith.
¶8 The trial court found that Claimant sustained an accidental personal injury to her right
knee and left ankle arising out of and in the
course of her employment and awarded her
benefits for temporary partial disability. The
trial court denied Veith’s “neutral risk” defense
based on its finding that Claimant had “parked
in a lot across the street from her place of
employment as she was instructed by her
employer.”
¶9 Veith appealed to a three-judge panel,
claiming, among other things, that the trial court
erred in denying his “neutral risk defense” and
in finding that Claimant was “instructed” to
park in the Armorite lot. The three-judge panel
affirmed the trial court’s order, and Petitioners
appeal.
STANDARD OF REVIEW
¶10 Generally, the issue of whether a
claimant’s injury arose out of and in the course
of employment is a question of fact for the
Workers’ Compensation Court and the anycompetent-evidence standard of review applies.
City of Edmond v. Monday, 1995 OK 132, ¶ 4, 910
P.2d 980, 982. However, where the relevant facts
are undisputed, an appellate court reviews the
lower court’s decision as a matter of law, disturbing it only if the undisputed material facts
do not support the Workers’ Compensation
Court’s order. See Fudge v. Univ. of Oklahoma,
1983 OK 67, ¶¶ 7-10, 673 P.2d 149, 151-52.
Vol. 77 — No. 20 — 7/29/2006
ANALYSIS
¶11 Petitioners here emphasize the fact that
Veith did not own, control or maintain the parking lot and assert that the lower court erroneously concluded that Claimant’s injury
occurred on her employer’s premises. Petitioners argue that the premises exception to the
“going and coming rule” did not apply and,
therefore, Claimant’s injury did not arise out of
and in the course of her employment and was
not compensable under Oklahoma workers’
compensation law.
¶12 It is well established that “a compensable
work-related injury must both (1) occur in the
course of and (2) arise out of the worker’s employment.” American Mgt. Sys., Inc. v. Burns, 1995 OK
58, ¶ 5, 903 P.2d 288, 290-91 (footnotes omitted).
The phrase “in the course of employment” refers
to the time, place or circumstances of the injury.
Id. at ¶ 5 n.3, 903 P.2d at 290 n.3. The determination of whether an injury arises out of employment “contemplates a causal relationship
between the act engaged in at the time injury
occurs and the requirements of employment.”
Fudge, 1983 OK 67 at ¶ 4, 673 P.2d at 150. If circumstances surrounding the employee’s injury
reflect a causal connection “between the encountered causative risk that resulted in the worker’s
harm and the conditions of his/her employment,” compensation is proper. Corbett v. Express
Personnel, 1997 OK 40, ¶ 7, 936 P.2d 932, 934
(footnote omitted).
¶13 Petitioners’ defense to this claim is
grounded upon the Oklahoma Supreme Court’s
analysis of three categories of “injury-causing
risk” in Odyssey/Americare of Oklahoma v. Worden,
1997 OK 136, 948 P.2d 309. There, the Court
explained that the risks an employee may
encounter while in the course of employment
include those that are (1) “solely connected with
employment, which are compensable;” (2) “personal risks, which are not compensable;” and (3)
“neutral risks, . . . which are neither distinctly
connected with employment nor purely personal” but may result in compensable injury
depending on the lower court’s factual determination of whether, under the circumstances, the
risk is employment related or personal. Id. at ¶ 6,
948 P.2d at 311. Relying on Burns, 1995 OK 58,
903 P.2d 288, Petitioners also argue that the
Workers’ Compensation Court erred as a matter
of law in finding Claimant’s injury compensable
because the risk responsible for her injury was
personal in nature and did not rise above the risk
to which ordinary persons were exposed.3
Vol. 77 — No. 20 — 7/29/2006
¶14 In support of their argument that her
injury resulted from a personal risk, Petitioners’
appellate briefs emphasize the following: (1)
Claimant’s injury took place before she had
commenced work at her assigned tasks; (2) Veith
did not create the hazard that precipitated
Claimant’s injury and did not own, operate or
control the parking lot; (3) Veith’s “only instructions [to Claimant] regarding parking was [sic]
not to park in front of the law office;” and (4)
Claimant’s employment “exposed her to no
more risk of injury from stepping in a hole in a
public street than that encountered by any member of the general public.” Petitioners’ argument
is faulty and incorrectly relies on Odyssey/Americare and Burns for the reasons set out in subsequent paragraphs.
¶15 First, Petitioners overlook the fact that
employment includes the reasonable margin of
time and space necessary to be used for ingress
and egress to the place where the actual work is
to be performed. Max E. Landry, Inc. v. Treadway,
1966 OK 259, 421 P.2d 829; E.I. Du Pont De
Nemours & Co. v. Redding, 1944 OK 151, 147 P.2d
166. Generally, injuries sustained while going to
and coming from work, when occurring on
employer premises, are deemed to have arisen
out of and in the course of employment. Redding
at ¶ 9, 147 P.2d at 167. The Oklahoma Supreme
Court has explained that an injury occurring
under these circumstances arises out of and in
the course of employment because “employment, within the meaning of the [Workers’]
Compensation Act, does not begin and end with
the actual work which the injured person was
employed to do, but covers the period between
his entering the employer’s premises a reasonable time before beginning his actual work and
his leaving the premises within a reasonable
time after his day’s work is done.” Greenway v.
Nat’l Gypsum Co., 1956 OK 88, ¶ 7, 296 P.2d 971,
973. “The employment contemplate[s] [the
claimant’s] entry upon and departure from the
premises as much as it contemplate[s] his working there, and must include a reasonable interval
of time for that purpose.” Redding, 1944 OK 151
at ¶ 13, 147 P.2d at 168 (quoting Freire v. Matson
Nav. Co., 118 P.2d 809, 810 (Cal. 1941)).
¶16 Further, Petitioners’ arguments rest on a
narrow definition of the term “premises” that is
not consistent with Oklahoma workers’ compensation law. Oklahoma precedent does not
require employer ownership or control over the
area where a claimant was injured for it to qualify as a part of the employer’s premises. Turner
v. B Sew Inn, 2000 OK 97, ¶¶ 8-10, 18 P.3d 1070,
1072. In Turner, the employee of a retail estab-
2113
lishment was injured when, upon arriving to
report to work, she slipped and fell while stepping from the shopping center parking lot onto
a sidewalk. The employer’s arguments against
compensability in Turner were much the same as
the arguments of Petitioners herein — including
the assertion that it did not own or control the
parking lot. Id. at ¶ 7, 18 P.3d at 1072.
¶17 In Turner, the Court found that the
claimant’s injury occurred “on what is deemed
to be the employer’s premises,” Id. at ¶ 8, 18 P.3d
at 1072, despite the fact that the employer did
not own, control or maintain the lot. The Court
noted that the claimant was in the lot pursuant
to her work responsibilities, she was arriving to
work in her customary manner at the beginning
of the work day, her employer had acquiesced in
her use of the lot, and her employer admitted
that it did not want its employees to park in the
spaces convenient for customers in front of the
store entrance. Id. at ¶ 25, 18 P.3d at 1076. The
Court concluded that the injury was compensable because: “[The claimant] was injured on the
employer’s premises while crossing the parking
lot to enter her workplace in a customary manner known to and acquiesced in by the employer [and] the claimant’s employment had a
connection to the causative risk encountered.”
Id.
¶18 There was evidence here that Veith wanted the closer parking spaces in front of his building to be left available for his law office clients.
However, Petitioners point out that Claimant
had the option of parking in the back of the law
office, and attack the trial court’s finding that
Veith “instructed” Claimant to use the Armorite
lot across the street, stating in their brief that
“[C]laimant’s only instructions regarding parking was [sic] not to park in the front of the law
office.”4 In making this statement, Petitioners
ignore Claimant’s contradictory testimony that
she had been instructed to park in the Armorite
lot by Veith and her immediate supervisor.
Credibility of witnesses and the effect and
weight of conflicting testimony are questions of
fact reserved for determination by the lower
court, not questions of fact for this Court on
appeal. Hackley v. Dalles Nursing Home, 1962 OK
140, 372 P.2d 586. In any event, it was undisputed that Veith was aware that Claimant and
another employee parked there daily, and that
he acquiesced in their use of the lot. In this case,
as in Turner, “the material fact questions relating to
the claimant’s presence in the parking lot and how her
injury occurred were undisputed.” Turner, 2000 OK
97 at ¶ 26 n.21, 18 P.3d at 1077 n.21 (emphasis
added). The Court in Turner specifically noted
2114
that the employer had disputed whether the
claimant was required to park in the particular
area and whether she could have used another
entrance, but the Court did not consider these to
be issues of material fact. Id.
¶19 Here, the record contains undisputed evidence that establishes some form of right, by law
or by custom, for Veith to use the Armorite parking lot for his law office — a right which he
passed to his employees and clients. Thus, as in
Turner, the Armorite parking lot can be and is
considered a part of the law office premises for
purposes of workers’ compensation coverage.
Id. at ¶ 25, 18 P.3d at 1076. Accordingly, this
Court rejects Petitioners’ arguments against
application of the premises exception to the
“going and coming rule.” This Court agrees
with Claimant’s assertion that the facts present a
“classic ‘parking lot’ case,” controlled by the
rationale of Fudge v. Univ. of Oklahoma, 1983 OK
67, 673 P.2d 149.
¶20 The basic parking lot rule is stated as
follows:
As to parking lots owned by the
employer, or maintained by the employer
for its employees, practically all jurisdictions now consider them part of the
“premises,” whether within the main company premises or separated from it. The
rule is by no means confined to parking lots
owned, controlled, or maintained by the
employer. The doctrine has been applied when
the lot, although not owned by the employer,
was exclusively used, or used with the owner’s
special permission, or just used by the employees of this employer.
1 Larson’s Workers’ Compensation Law
§ 13.04(2)(a) (2000)(emphasis added)(footnotes
omitted). The treatise further explains that
“[o]nce a parking lot has achieved, under these
standards, the status of a portion of the employer’s premises, compensation coverage attaches
to any injury that would be compensable on the
main premises.” Id. at § 13.04(2)(b).
¶21 Petitioners attempt to distinguish Fudge
by asserting that the employee in that case was
exposed to the special hazard of traffic in crossing the street, while in the present matter, there
was no special hazard or increased risk —
Claimant “simply fell as a result of stepping into
a hole in a public street.” Petitioners urge this
Court to find that this case is governed by
Odyssey/Americare and Burns, apply the
“increased risk” test and conclude that
Claimant’s injuries did not arise out of her
Vol. 77 — No. 20 — 7/29/2006
employment. However, this Court disagrees
with Petitioners’ attempt to limit the holding in
Fudge to situations where the claimant, who is a
pedestrian, is struck by a vehicle when crossing
the street. It is this Court’s opinion that the holding in Fudge was not limited to the hazard of
traffic, but instead stands for the proposition
that, when a parking lot constitutes part of the
employer’s premises, an employee’s injury sustained when traveling from the lot to reach the
office and begin his/her work arises out of and
in the course of employment. This is consistent
with the general rule that “[b]y sponsoring parking in a lot not contiguous to the working
premises, the employer has created the
necessity for encountering the hazards lying
between those two portions of the premises.”
Larson at § 13.01(2)(b).
¶22 On her route between the Armorite parking lot and the law office, Claimant necessarily
had to cross the street. Thus, the injuries she sustained in crossing the street arose out of and in
the course of her employment. Fudge, 1983 OK
67 at ¶ 6, 673 P.2d at 151 (citing Swanson v. Gen.
Paint Co., 1961 OK 70, 361 P.2d 842). See also City
of Edmond v. Monday, 1995 OK 132, ¶ 9, 910 P.2d
980, 983. Odyssey/Americare and Burns are inapplicable, as neither case involved a claimant
injured on the employer’s premises. Moreover,
the Oklahoma Supreme Court has made it clear
that, when the employee’s presence in the workplace parking lot is unquestionably employment
related, there is “no need to apply the ‘increased
risk’ test of Odyssey/Americare.” Turner, 2000 OK
97 at ¶ 13 n.1, 18 P.3d at 1073 n.1.
CONCLUSION
¶23 The undisputed material facts of record
support a finding that Claimant’s injury resulted
from exposure to a risk incident to her employment. The determination that Claimant is entitled to workers’ compensation benefits is consistent with Oklahoma law. Accordingly, the judgment of the Workers’ Compensation Court is
sustained.
¶24 SUSTAINED.
GABBARD, P.J., and REIF, J., concur.
1. The Form 2 filed by the office manager lists Oklahoma Bar Association — OBA Group as the employer. The Form 3 lists Jimmy L.
Veith, P.C., as employer. The trial court order lists Veith, Jimmy L., as
the Respondent, as does the Order on Appeal.
2. When questioned by the trial court regarding whether Veith’s
office had any “designated employee parking,” counsel for Veith
responded: “No. There’s parking around the building.”
3. In both Odyssey/Americare and Burns, the injured employees
were required to show an “increased risk” — one that exceeded “the
ordinary hazards to which the general public is exposed.” Burns, 1995 OK 58
at ¶ 7, 903 P.2d at 292 (footnote omitted).
Vol. 77 — No. 20 — 7/29/2006
4. The photographs admitted into evidence show that the “front”
of the office is a paved area, apparently with only a limited number of
parking spaces, which were reserved for the firm’s clients.
2006 OK CIV APP 76
IN THE MATTER OF THE ESTATE OF
DAVID LEWIS AKERS, DECEASED.
BOBBIE AKERS and SHERRY STRONG,
Petitioners/Appellees, v. JEFFREY AKERS,
Respondent/Appellant.
No. 102,240. June 22, 2006
ORDER
Appellee Bobbie Akers seeks appeal-related
attorney fees as an administrative expense of the
estate pursuant to 58 O.S.2001 §525. Attorney
fees for necessary services rendered to the personal representative in the preservation and care
of the estate may be reimbursed to the personal
representative upon proper application to the
trial court pursuant to §525. Matter of Estate of
Bartlett, 1984 OK 9, 680 P.2d 369, 379.
Normally, attorney fees to be awarded pursuant to 12 O.S.2001 §696.4(c) and Supreme
Court Rule 1.14 are sought against another party
to the appeal. In that case, the rule is that the
court in which the attorney fees are incurred is
the proper court to receive and act on the
request. GRP of Texas, Inc. v. Eateries, Inc., 2001
OK 53, 27 P.3d 95, 98.
However, where a personal representative is
relying on §525 to receive reimbursement for
necessary expenses, we hold that the application
for attorney fees should be filed in the probate
court in the first instance, and may include fees
incurred in appeal-related activities. The probate court would then determine entitlement
under normal §525 standards.
DONE BY ORDER OF THE COURT OF CIVIL
APPEALS this 21st day of June, 2006.
/s/ E. Bay Mitchell, III
E. BAY MITCHELL, III,
Presiding Judge
2006 OK CIV APP 77
BONNIE FORCUM, Plaintiff/Appellant, v.
VIA CHRISTI HEALTH SYSTEM, INC., a
Kansas Corporation, and VIA CHRISTI
OKLAHOMA REGIONAL MEDICAL
CENTER-PONCA CITY, INC., f/k/a ST.
JOSEPH REGIONAL MEDICAL CENTER
OF NORTHERN OKLAHOMA, INC., an
Oklahoma Corporation, Defendants/
Appellees.
No. 101,742. April 14, 2006
2115
KAY COUNTY, OKLAHOMA
HONORABLE LESLIE D. PAGE, JUDGE
AFFIRMED
Jenny L. Evans, Jason D. Leonard, Jana B.
Leonard, LEONARD & ASSOCIATES, P.L.L.C.,
Oklahoma City, Oklahoma, for Plaintiff/Appellant,
Lori L. Young, BAUMERT, CUMMINGS, HIATT
& YOUNG, Ponca City, Oklahoma, for Defendants/Appellees.
OPINION BY BAY MITCHELL, PRESIDING
JUDGE:
¶1 Plaintiff/Appellant Bonnie Forcum
appeals from the trial court’s order granting
summary judgment to Defendants/Appellees
Via Christi Health System, Inc. (Health System)
and Via Christi Oklahoma Regional Medical
Center-Ponca City, Inc., f/k/a St. Joseph Regional Medical Center of Northern Oklahoma Inc.
(Medical Center) in this employment discrimination action. Forcum filed federal claims
against the Defendants pursuant to the Americans with Disabilities Act of 1990 (ADA), 42
U.S.C.A. §12101, et seq., the Age Discrimination
in Employment Act (ADEA), 29 U.S.C.A. §621 et
seq., and a state claim for age discrimination
under the Oklahoma Anti-Discrimination Act,
25 O.S. 2001 §1101, et. seq. The trial court found
these claims were time-barred and determined
the Health System was not a proper party. We
affirm on the basis that Forcum’s claims were
time-barred, which makes the remaining issue
moot.
¶2 We review the award of summary judgement de novo, giving no deference to the trial
court’s legal rulings. Copeland v. Lodge Enters.,
Inc., 2000 OK 36, ¶8, 4 P.3d 695, 699 n.11. Summary judgment is only appropriate when the
pleadings, affidavits, depositions, admissions
and other evidentiary materials establish there
are no genuine issues as to any material fact and
the moving party is entitled to judgment as a
matter of law. Id.
¶3 Forcum began her employment with the
Medical Center in 1980 as a collections counselor. In the latter part of 1999, Forcum began to
miss work due to her fibromyalgia. The Medical
Center asked her physician to verify her condition and fill out a form stating whether she qualified for leave under the Family Medical Leave
Act (FMLA). Forcum’s physician and an independent physician verified that she had
fibromyalgia. Forcum began taking intermittent
2116
leave under the FMLA in February of 2000. Forcum contends she was a good employee who
had never received any disciplinary actions until
she began taking family medical leave. However, she received several written disciplinary
actions from the Medical Center the year she
was placed on family medical leave. The Medical Center disciplined Forcum for systematically taking her leave near the weekends or holidays. They also disciplined her for having low
productivity and poor customer service.
¶4 On January 10, 2001, the Medical Center
notified Forcum that her position, along with the
jobs of other collections counselors, would be
outsourced to a collections agency. The Medical
Center then terminated her employment on January 31, 2001. Forcum contends this reason was
only pretextual, and she was actually terminated because of her disability and her age of 57.
She asserts another woman who was under the
age of 40 and did not have a disability continued
to perform her job at the Medical Center. Forcum also contends the Medical Center again discriminated against her on the basis of her disability by failing to hire her for another position
for which she was qualified on February 20,
2001.
¶5 Forcum mailed an information sheet to file
a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC)
on August 9, 2001. The charge alleged disability
and age discrimination. The EEOC did not find
any violation and issued a Dismissal and Notice
of Rights letter to Forcum on November 14,
2001, informing her that she had 90 days to file
suit on her federal claims. Forcum filed her Petition against the Medical Center alleging a violation of the ADA on February 13, 2002, 91 days
later. Forcum then filed an Amended Petition on
November 27, 2002, adding the Health System
as a defendant, and adding causes of action for
federal and state age discrimination.
¶6 The Defendants contend all three of Forcum’s claims are time-barred, and we agree. To
be timely, actions for violations of both the ADA
and the ADEA must be filed within 90 days of
receipt of notice from the EEOC of dismissal of
the charge. 42 U.S.C.A. §12117 (ADA applies
procedures from Title VII, 42 U.S.C.A. §2000e5(f), which requires that civil actions be brought
within ninety days after EEOC gives notice of
dismissal of action); 29 U.S.C.A §626(e) (ADEA
provides that a civil action may be brought within 90 days after receipt of notice). The ninety-day
filing requirement is akin to a statute of limitations, and is subject to waiver, equitable estoppel, and equitable tolling. E.g., Vollinger v. Merrill
Vol. 77 — No. 20 — 7/29/2006
Lynch & Co., Inc., 198 F. Supp.2d 433, 440
(S.D.N.Y. 2002). However, “in the absence of a
recognized equitable consideration the court
cannot extend the limitations period by even
one day.” Rice v. New England College, 676 F.2d 9,
11 (1st Cir. 1982) (emphasis added) (dismissing
Title VII action filed 91 days after receipt of
notice).
¶7 Forcum stated in her Amended Petition
that she “received notice that the EEOC had terminated its proceedings” on November 14, 2001,
which was 91 days before she filed her petition.
In their summary judgment statement of facts,
Defendants alleged: “On November 14, 2001,
Plaintiff received notice that the EEOC had terminated its proceeding on Plaintiff’s charge.”
Significantly, Forcum admitted this statement of
fact “for the purposes of this Motion only.”
Thus, Forcum admitted actual receipt of notice
of the dismissal by the EEOC 91 days before she
filed her petition.1
¶8 Forcum contends, however, that a presumption of mailing attaches that automatically
adds three to five days to the 90-day time limit
to file the petition. The Tenth Circuit has applied
a presumption of mailing, but emphasized that
this presumption “is appropriate whenever the
actual receipt date is unknown or disputed.”
Lorenzo v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir.
2001) (emphasis added). Several courts have
held that when the plaintiff receives actual
notice by other means, such as being told by an
EEOC representative that a right-to-sue letter
has been issued or their case has been dismissed,
the ninety-day limitations period commences on
that date, without regard to whether the letter is
received at that time. E.g., Hunter-Reed v. City of
Houston, 244 F. Supp.2d 733, 741-42 (S.D. Tex.
2003); Cook v. Providence Hosp., 820 F.2d 176, 17980 (6th Cir. 1987) (refusing to apply equitable
tolling where plaintiff admitted actual receipt of
notice by phoning EEOC that charge had been
dismissed); Garrison v. Town of Bethany, 131 F.
Supp.2d 585, 590-91 (D.Del. 2001) (relying on
date of actual receipt of notice of dismissal
rather than date of receipt of written notice).
¶9 We refuse to apply a presumption of mailing or any other equitable doctrine here because
Forcum admitted actual receipt of notice that
her proceeding had been discharged, which
began the 90-day time period. Forcum alleged
November 14, 2001 was the specific date of
receipt of notice in her own Amended Petition
and then admitted receipt of notice on that date
in her response to Defendants’ motion for summary judgment. Because she filed her ADA and
ADEA claims 91 days after actual receipt of
Vol. 77 — No. 20 — 7/29/2006
notice, they are untimely and summary judgment was proper.
¶10 We also find Forcum’s claim for age discrimination under the Oklahoma Anti-Discrimination Act is time-barred. To be timely, 25 O.S.
2001 §1502 requires that a person claiming to be
aggrieved by a discriminatory practice or his
attorney must file a complaint with the Oklahoma Human Rights Commission (OHRC)
within 180 days after the alleged discriminatory
practice occurs. The only act Forcum asserted
that violated the Oklahoma Anti-Discrimination
Act on the basis of age was her termination,
which occurred on January 31, 2001. However,
she did not file her complaint with the OHRC
and the EEOC until at least August 9, 2001,
which was more than 180 days later.2
¶11 Forcum argues the time period for filing
the state age discrimination claim with the
OHRC is not 180 days, but is instead 300 days
because Oklahoma is a “deferral” state. In a
deferral state where the plaintiff institutes a proceeding with a state agency, she obtains an
extended 300-day period for filing federal
claims with the EEOC. Smith v. Oral Roberts
Evangelistic Ass’n., Inc., 731 F.2d 684, 687 (10th
Cir. 1984). The state filing does not have to be
timely to obtain the extended federal filing. Id.
This holding is based on the premise that “state
procedural defaults cannot foreclose federal
relief and that state limitations periods cannot
govern the efficacy of the federal remedy.” Id. at
690 (quoting Oscar Mayer v. Evans, 441 U.S. 750,
762, 99 S.Ct. 2066, 2074, 60 L. Ed.2d 609 (1979)).
¶12 Here, Forcum had the advantage of the
extended 300-day period to file her federal
claims with the EEOC even though her state
claim was untimely. However, her state claim is
barred by the 180-day filing period, and is not
affected by the extended federal filing period.
E.g., Lottinger v. Shell Oil Co., 143 F. Supp.2d 743,
753 (S.D. Tex. 2001) (“State law claims of
employment discrimination are time-barred
when filed after the 180-day period, while the
same claims brought under federal law would
be timely if filed within 300 days of the alleged
discriminatory conduct”); see also Zysk v. FFE
Minerals USA Inc., 225 F. Supp.2d 482, 494 (E.D.
Pa. 2001) (holding claimant extended federal filing period from 180 to 300 days by untimely
state filing, but state claim was still barred by
state’s 180-day statute of limitations).
¶13 Summary judgment on Forcum’s state
claim was therefore proper 3 and the order
granting judgment is accordingly AFFIRMED.
ADAMS, J., and BUETTNER, C.J., concur.
2117
1. In a later statement of fact, Defendants again alleged that Plaintiff had received notice from the EEOC that it had dismissed its proceeding on November 14, 2001 and notified Forcum that a civil action
must be filed within 90 days. Forcum only admitted this statement of
fact in part, stating a charging party is required to file suit within 90
days of receipt. Forcum did not clarify what part of this statement of
fact was incorrect. Forcum never denied that she or her attorneys had
actually received notice of the dismissal on November 14, 2001, as she
had alleged in her amended petition and admitted in the summary
judgment response. Further, Forcum did not assert any grounds for
equitable tolling of this time limit or even explain why her Petition
was untimely. This partial denial does not create a disputed question
of fact or change her clear admission of actual receipt of notice.
2. Forcum signed the formal charge of discrimination on September 13, 2001, and requested that the charge also be filed with the
OHRC.
3. The parties did not brief the issue of whether there is a private
cause of action for age discrimination under the Oklahoma Anti-Discrimination Act, and we do not give any opinion on this matter.
Because we find the claim was not timely filed at the administrative
level, it was not necessary to reach this issue.
2006 OK CIV APP 78
MIKE WARREN and JUDY WARREN, and
ANGIE MILLER, natural mother and legal
custodian of CAMERON NORMORE, a
minor child, Plaintiffs/Appellants, v.
UNITED STATES SPECIALTY SPORTS
ASSOCIATION, Defendant/Appellee.
No. 102,048. May 30, 2006
find that the trial court did not err in dismissing
Plaintiffs’ claims for intentional infliction of
emotional distress and false light invasion of privacy; we further find that USSSA is entitled to
judgment as a matter of law on Judy Warren’s
assault claim.
FACTS AND PROCEDURAL
BACKGROUND
¶2 Plaintiffs filed a petition asserting three
claims against USSSA — intentional infliction of
emotional distress, “false light,” and assault.
USSSA asserted in its answer that Plaintiffs
failed to state a claim upon which relief could be
granted. It later filed a motion to dismiss Plaintiffs’ claims of intentional infliction of emotional
distress on the grounds that Plaintiffs failed to
demonstrate severe emotional distress and
extreme and outrageous conduct and also failed
to allege each and every element of false light
invasion of privacy. The trial court sustained
USSSA’s motion to dismiss but gave Plaintiffs
ten days to file an amended petition.
¶3 Plaintiffs’ amended petition included the
following factual allegations:
•
The Midwest City Outlaws, an eightand-under baseball team, entered a double-elimination tournament sponsored
by USSSA. The winner of the tournament was to be named state champion.
Plaintiffs claim that the Outlaws paid
the entry fee “and all other prerequisites
and conditions were satisfied by the
team.”
•
The Outlaws won their first tournament
game and the team was scheduled to
play again the next day.
•
Someone protested the Outlaws’ game
on the ground that it “had used an illegal player, had an incorrect roster, had
no roster at all, had an unsigned roster
or was otherwise in violation of some
other rule of USSSA.”
•
The protest was made to the person in
charge of the tournament, Ted Cox, who
is the Oklahoma State Director of
USSSA, and a member of the organization.
•
Although no one officially informed the
Outlaws’ coaches that the protest had
been upheld, Mike and Judy Warren
heard that Cox had upheld the protest
and declared the Outlaws’ first game a
forfeit, thereby placing the team in the
losers’ bracket.
HONORABLE VICKI L. ROBERTSON,
TRIAL JUDGE
AFFIRMED
Steven M. Ditto, Oklahoma City, Oklahoma, for
Plaintiffs/Appellants,
Bryan J. Wells, Billy M. Lewis, CONNER &
WINTERS, LLP, Oklahoma City, Oklahoma, for
Defendant/Appellee.
JUDGE:
¶1 Mike Warren, Judy Warren, and Angie
Miller, next friend of Cameron Normore, a
minor child, (collectively, Plaintiffs) appeal from
orders of the trial court dismissing two of their
claims against Defendant United States Specialty Sports Association (USSSA) for failure to state
a claim upon which relief can be granted and
granting summary judgment in favor of USSSA
on Plaintiff Judy Warren’s claim of assault. The
issues presented on appeal are (1) whether the
trial court erred in dismissing for failure to state
a claim Plaintiffs’ claims for intentional infliction
of emotional distress and false light invasion of
privacy, and (2) whether the trial court erred in
granting summary judgment in favor of USSSA
on Judy Warren’s claim for assault. Upon review
of the record on appeal and applicable law, we
2118
Vol. 77 — No. 20 — 7/29/2006
•
The coaches presented documentation
that cured any alleged violation, and
Cox received adequate assurance that
the Outlaws had abided by all the rules.
•
Cox “intentionally and recklessly forfeited” the Outlaws’ game because he
allowed two other teams to play in the
tournament without abiding by the
same rules he applied to the Outlaws.
•
Judy and Mike Warren went to Cox’s
office to discuss the matter, but Cox
would not rationally discuss the matter
and he “suddenly, became enraged,
jumping out of his chair and charging
straight at Judy Warren, yelling and
screaming at Mrs. Warren in a threatening and menacing manner. Mike Warren
jumped in front of Judy Warren just as
Cox got to her, pulled [her] away and
both left Cox’s office immediately.”
•
The umpire informed the coach that the
Outlaws’ next scheduled game would
begin at 3:00 p.m. on that same day. By
the time the Outlaws were informed of
the game time, it was too late to gather
up all of the team members, and the
game was declared a forfeit. The forfeit
meant that the Outlaws were out of the
tournament, which brought the Outlaws’ season to a close.
•
“All of the team members, and their parents and relatives, [including Plaintiffs],
were extremely disappointed, upset and
distraught.” Cox’s allegations that the
team and coaches had done something
improper or against USSSA rules also
embarrassed and humiliated the team,
coaches, parents, and relatives.
•
The Plaintiffs suffer from “severe and
ongoing” emotional distress, including
“grief, shame, humiliation, anger, disappointment and worry.” The members of
the team, including Cameron Normore,
“are still referred to as ‘cheaters’ by
members of the public, to include players on other teams, and the team’s reputation has been permanently damaged.”
•
Cox was acting as USSSA’s employee
and agent and acting within the scope of
his authority at all time relevant to the
lawsuit.
¶4 USSSA filed a renewed motion to dismiss
claiming that, even with the additional factual
assertions, Plaintiffs failed to state a claim for
intentional infliction of emotional distress or
Vol. 77 — No. 20 — 7/29/2006
false light invasion of privacy. The trial court
dismissed the claims.
¶5 USSSA filed a motion for summary judgment on the sole remaining cause of action, Judy
Warren’s claim of assault. USSSA set out 34
material undisputed facts. It claimed that it does
not operate sports leagues or tournaments at
local or state levels and that local leagues are
typically formed by individual communities
that create non-profit volunteer associations to
run leagues. Such local leagues can register with
different and sometimes multiple national
organizations so that the league can play in
tournaments sanctioned by the national
organizations.
¶6 USSSA is one national organization with
which leagues can register, but it has no involvement in the management or operation of the
local leagues. It simply accepts a fee from teams
and allows them to play in USSSA sanctioned
events. During the youth baseball season, various leagues sponsor tournaments. If the host of
the tournament is registered with USSSA, and
the host pays an additional fee, the tournament
becomes a USSSA sanctioned event, but USSSA
does not have a role in the management or
operation of the tournament.
¶7 USSSA also does not operate the USSSA
state tournament. Sports associations and
league operators seek to be awarded the right to
host the state tournament, and the state director,
who is appointed by USSSA, awards the right to
host the state tournament. The entity that is chosen runs the tournament and performs such
tasks as setting the schedule, hiring the umpires,
and running the concession. USSSA is only
involved in sanctioning the tournament, accepting the fee, and providing the rules. The winners
of the tournaments are recognized as the USSSA
state champion. Leagues and teams register
with USSSA to have an opportunity to participate in events such as the state championships
and sanctioned national and world series
events.
¶8 USSSA is a national, non-profit sports association incorporated in Virginia with national
headquarters in Orlando, Florida. Its purpose is
“to serve and perform as a multi-sports association by creating, promoting, and organizing programs in various sports.” The organization has
its own board of directors and national officers,
and each individual sport has its own board of
directors which appoints a state director for the
individual sport. The state director, who is not
an employee of USSSA and receives no compensation for his or her appointment, has the right
2119
to organize his or her state program. The state
director both recruits league and non-league
teams to register with USSSA and promotes
USSSA sanctioned tournaments and awards and
promotes the state tournament. The director creates state by-laws and tournament rules that
govern how tournaments in the state are conducted. The director earns revenue by registering leagues and teams and generating tournament entry fees. The director retains a portion of
the registration fee but must remit part of the
registration fee and all of the sanctioning fees to
USSSA. Each director “literally runs his own
business.”
¶9 USSSA appointed Ted Cox as Oklahoma
state director for baseball in 1997, and he established TCRG Sports, Inc., an Oklahoma company doing business as USSSA Baseball. Cox owns
100% of TCRG, Inc. Cox collects a fee from local
and state tournaments, and he keeps a portion
and remits a portion to USSSA. He does not
receive a wage or salary from USSSA, and it
does not supervise or manage his operation.
¶10 Cameron Normore, a member of the Outlaws, played in a USSSA state tournament in
June 2003. At the tournament, other teams made
allegations against the Outlaws and one team
filed an official complaint. The Outlaws were
ultimately eliminated from the tournament. The
alleged assault on Judy Warren took place at
Cox’s office, which is not located at the ball
fields where the tournament was taking place.
¶11 USSSA argued that, even if Cox took the
actions alleged by Plaintiffs and committed an
assault, it could not be held liable for his actions.
It claimed that it was not liable under the theory
of respondeat superior because it had no
involvement in the events that gave rise to the
alleged assault, and Cox did not act in furtherance of any purpose of USSSA.
¶12 In their response, Plaintiffs failed to dispute the undisputed facts presented by USSSA
in its motion for summary judgment,1 but
instead listed their own “Undisputed Facts.”
Plaintiffs claimed the Outlaws “properly
entered and participated in” the state tournament. Cox forfeited the game the Outlaws had
won, but failed to tell them when the next scheduled game was to take place, and the Outlaws
were out of the tournament. When confronted,
Cox yelled and screamed at Judy Warren and
charged at her in a threatening and menacing
manner.
¶13 Plaintiffs agreed with USSSA that it
appoints a state director who awards the right to
host the tournament and that USSSA accepts a
2120
fee, provides the rules, and sanctions the tournament. Plaintiffs additionally claimed that
USSSA promulgates the official playing rules for
the actual playing of the game, including rules
regarding approved equipment and facilities,
and the rules appear in an official rule book.
¶14 Plaintiffs agreed that Cox was appointed
by USSSA in 1997 and claimed that, although
Cox has the authority to promulgate rules and
regulations, any such rules cannot contradict or
conflict with those of USSSA. The constitution of
the USSSA gives a state director the authority to
disbar a player, coach or team for “’knowingly
competing with or against ineligible or suspended players.’” The constitution also provides that
USSSA’s state officers are under the jurisdiction
of the state director. The USSSA may disbar any
state director who engages in unsportsmanlike
conduct, abusive tactics, or acts that are detrimental or not in the best interest of USSSA. A
director may also be suspended for violating
USSSA’s rules, policies, and procedures, or failing to submit fees and information within fourteen days of receipt. State directors have the
authority to suspend players or participants and
to eject a player or team from a tournament.
USSSA owns all copyrights and telecast and
broadcast rights to sanctioned or sponsored
events. Plaintiffs claim, “At all times relevant,
Ted Cox was enforcing the rules and regulations
of USSSA as same pertained to the setting up
and running of state baseball tournaments in
Oklahoma.”
¶15 The only undisputed fact listed by Plaintiffs was whether Cox assaulted Judy Warren. In
its reply to Plaintiffs’ response, USSSA did not
respond to Plaintiffs’ statement of undisputed
facts. The trial court granted summary
judgment in favor of USSSA. Plaintiffs appeal.
STANDARD OF REVIEW
¶16 The purpose of a motion to dismiss for
failure to state a claim is to “test the legal sufficiency of the pleadings, not to evaluate the
underlying facts. The question before us is hence
whether, taking all of [Plaintiffs’] allegations as
true, [they are] precluded from recovering as a
matter of law.” Patel v. OMH Med. Ctr., Inc., 1999
OK 33, ¶ 43, 987 P.2d 1185, 1202 (footnotes omitted).
¶17 Summary judgment is properly granted
“when the pleadings, affidavits, depositions,
admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law” Davis v. Leitner,
1989 OK 146, ¶ 9, 782 P.2d 924, 926. When
Vol. 77 — No. 20 — 7/29/2006
reviewing the grant of summary judgment, we
must view all inferences and conclusions to be
drawn from the evidentiary materials in a light
most favorable to the party opposing the
motion. Id.
¶18 Although a trial court considers factual
matters when deciding whether summary judgment is appropriate, its ultimate decision is
purely legal: “whether one party is entitled to
judgment as a matter of law because there are no
material disputed factual questions.” Carmichael
v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.
Therefore, our standard of review on appeal is
de novo. Id.
ANALYSIS
I. Intentional Infliction of Emotional Distress
¶19 Oklahoma law recognizes the tort of
intentional infliction of emotional distress, also
known as outrage. Miner v. Mid-America Door
Co., 2003 OK CIV APP 32, ¶ 41, 68 P.3d 212, 223.
In order to recover, “a plaintiff must prove: (1)
the defendant acted intentionally or recklessly;
(2) the defendant’s conduct was extreme and
outrageous; (3) the defendant’s conduct caused
the plaintiff emotional distress; and (4) the
resulting emotional distress was severe.” Computer Publ’ns, Inc. v. Welton, 2002 OK 50, ¶ 7, 49
P.3d 732, 735.
¶20 Liability for the tort has only been found
where the offending conduct “has so totally and
completely exceeded the bounds of acceptable
social interaction that the law must provide
redress.” Miller v. Miller, 1998 OK 24, ¶ 33, 956
P.2d 887, 901.
“Liability has been found only where the
conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all
possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community. Generally, the
case is one in which the recitation of the facts
to an average member of the community
would arouse his resentment against the
actor, and lead him to exclaim, ‘Outrageous!’”
Id. (quoting Restatement (Second) of Torts § 46
cmt. d). See also Worsham v. Nix, 2004 OK CIV
APP 2, n.4, 83 P.3d 879, 888.
¶21 Liability does not extend “’to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.’” Eddy v. Brown, 1986
OK 3, ¶ 7, 715 P.2d 74, 77 (quoting Restatement
(Second) of Torts § 46 cmt. d). “The tort of outrage protects emotional tranquility against seriVol. 77 — No. 20 — 7/29/2006
ous invasion only. Extraordinary transgression of
the bounds of civility is required.” Id. at n.6.
¶22 To insure that only valid claims reach a
jury, the trial court must initially act as a gatekeeper to determine if an alleged tortfeasor’s
conduct is sufficiently extreme and outrageous
and if the plaintiff suffered severe emotional distress. Computer Publ’ns, 2002 OK 50 at ¶ 16, 49
P.3d at 737. For example, in Mason v. State of
Oklahoma ex rel. Board of Regents of the University
of Oklahoma, 2001 OK CIV APP 33, 23 P.3d 964, a
former law student alleged that the University’s
failure to consider his application for readmission after his expulsion amounted to outrageous
conduct sufficient to state a claim for intentional
infliction of emotional distress. The Court stated, “We have no difficulty in affirming the trial
court’s decision that this conduct falls far short
of the level of ‘outrageous’ conduct necessary to
support a cause of action for intentional infliction of emotional distress.” Id. at ¶ 14, 23 P.3d at
970.
¶23 We find that the trial court did not err in
dismissing Plaintiffs’ claim for intentional infliction of emotional distress. Cox’s decision to
require the Outlaws to forfeit a game after an
official complaint was lodged against the team is
not conduct that is so extreme and outrageous as
to meet the standard for the tort of intentional
infliction of emotional distress. Cox’s actions did
not so totally exceed the bounds of acceptable
behavior that, upon a recitation of the facts, an
average member of the community would
exclaim “outrageous.” See Worsham, 2004 OK
CIV APP 2 at n.4, 83 P.3d at 888. Even if we view
all of the facts and inferences in a light most
favorable to Plaintiffs, Cox’s actions do not rise
to the level of extreme and outrageous conduct.
II. False Light Invasion of Privacy
¶24 A plaintiff alleging a cause of action for
false light invasion of privacy must prove the
following:
(1) the defendant gave publicity to a matter
concerning the plaintiff that placed the
plaintiff before the public in a false light,
(2) the false light in which the plaintiff was
placed would be highly offensive to a reasonable person, and (3) the defendant had
knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other
would be placed.
Mitchell v. Griffin Television, L.L.C., 2002 OK CIV
APP 115, ¶ 7, 60 P.3d 1058, 1061. The Supreme
Court in Colbert v. World Publishing Co., 1987 OK
2121
116, ¶ 16, 747 P.2d 286, 292, set out the standard
to which an alleged tortfeasor’s conduct must
rise:
We find that the right of action for false light
invasion of privacy is a product of the same
societal need as the tort of outrage or intentional infliction of emotional distress, which
will lie only in the presence of extreme and outrageous conduct. We have adopted a standard
of knowing or reckless conduct to afford
recovery to those who suffer mental anguish
by reason of a false light invasion of privacy.
Consequently, we are committed to that
standard, and will not now adopt a standard
of recovery which imposes liability on one
who accidentally or negligently injures the
feelings of another.
(Emphasis added.)
¶25 In the preceding section, we concluded
that Cox’s behavior in deciding to forfeit the
Outlaws’ game did not rise to the level of
extreme and outrageous conduct that would
create liability for intentional infliction of emotional distress. Likewise, we find that any “publication” by Cox of the information regarding
the forfeiture, or alleged violations by the Outlaws which resulted in the forfeiture, does not
rise to the level of extreme and outrageous conduct set out in Colbert. Plaintiffs do not allege
that Cox specifically told anyone of the forfeiture or reasons for it. Plaintiffs simply allege that
the Warrens heard that Cox upheld the protest.
Placing the Outlaws in the losers’ bracket, which
one might consider a “publication” of the information, does not reach the level of extreme and
outrageous conduct that would give rise to a
cause of action for intentional infliction of emotional distress. Applying the holding of Colbert,
Cox’s actions will not support a claim of false
light invasion of privacy.
¶26 In Wooten v. Pleasant Hope R-VI School District., 270 F.3d 549 (8th Cir. 2001), a high school
student who had been expelled from her softball
team after she failed to appear at a scheduled
game brought a lawsuit against the school district asserting claims for violation of privacy and
intentional infliction of emotional distress. The
coach of the team announced to the other players that the student had been expelled from the
softball program, but the student learned of her
expulsion from an acquaintance the morning
after she missed the game. The trial court dismissed the student’s lawsuit for failure to state a
claim upon which relief can be granted. The
United States Court of Appeals for the Eighth
Circuit upheld the trial court’s dismissal. The
2122
Court acknowledged that, although the student
may have felt she was wrongfully expelled, “the
law does not provide a remedy for every perceived harm.” Id. at 551.
¶27 Although Plaintiffs may have felt wrongfully accused and embarrassed by Cox’s actions,
they have failed to allege a cause of action
against USSSA for false light invasion of privacy.
Accordingly, we affirm the trial court’s decision
granting USSSA’s motion to dismiss for failure
to state a claim.
III. Assault
¶28 Plaintiffs attempt to establish USSSA’s liability for the alleged assault on the theory of
respondeat superior, which allows an employer
to be held liable for “the willful torts of an
employee acting within the scope of employment in furtherance of assigned duties.” N.H. v.
Presbyterian Church, 1999 OK 88, ¶ 14, 998 P.2d
592, 598. In their response to USSSA’s motion for
summary judgment, Plaintiffs set out numerous
“undisputed facts” aimed at establishing an
agency relationship between USSSA and Cox.
We find that, even if questions of fact remain as
to whether an agency relationship existed
between USSSA and Cox which would preclude
the grant of summary judgment on the issue of
agency, the undisputed facts show that USSSA
cannot be held liable for the assault. USSSA is
entitled to judgment as a matter of law because
the assault was not within the scope of the
alleged employment relationship between
USSSA and Cox, and Cox was not acting in furtherance of any purpose of USSSA when he
allegedly committed the assault.
¶29 “To hold an employer responsible for the
tort of an employee, the tortious act must be
committed in the course of the employment and
within the scope of the employee’s authority.”
Baker v. Saint Francis Hosp., 2005 OK 36, ¶ 10, 126
P.3d 602, 605. As a general rule, an assault upon
a third party is not within the scope of employment. N.H., 1999 OK 88 at ¶ 14, 998 P.2d at 598.
There are three exceptions to this general rule:
“1) the act is fairly and naturally incident to the
employer’s business; 2) the act occurs while the
employee is engaged in an act for the employer;
or 3) the assault arises from a natural impulse
growing out of or incident to the attempt to
complete the master’s business.” Id. at ¶ 14, 998
P.2d at 598-99. Allegation that the assault
occurred during an employment-related activity
“is insufficient to assess liability against the
employer unless the act was done to accomplish
the assigned work.” Id.
Vol. 77 — No. 20 — 7/29/2006
¶30 Although Mike and Judy Warren allege
that “at relevant times” Cox was acting as an
employee and agent of USSSA, they did not
allege that the assault occurred while Cox was
actually engaged in USSSA’s business. They
claim they went to Cox’s office to “find out what
was going on,” and Cox yelled and screamed at
Judy Warren in a manner that was both threatening and menacing. The undisputed facts
reveal that Cox’s office is “at a different location
from the ball fields where the tournament was
taking place.” Plaintiffs do not contend that
USSSA provides Cox with an office, nor that the
office in which the alleged assault took place is
even used by Cox to conduct USSSA business.
¶31 The question of whether an act is within
the scope of employment is ordinarily left to the
finder of fact. Baker, 2005 OK 36 at ¶ 16, 126 P.3d
at 606. “Only when one reasonable conclusion
can be drawn from the facts is it appropriate for
a court to rule on a respondeat superior issue as a
matter of law.” Id. at ¶ 16, 126 P.3d at 607.
¶32 Here, only one reasonable conclusion can
be drawn from the undisputed facts. The alleged
assault is not fairly and naturally incident to
USSSA’s business of sanctioning sports tournaments. At the time the alleged assault occurred,
Cox was not engaged in an act for USSSA and
was not furthering any purpose of USSSA. Cox
did not confront Plaintiffs in order to accomplish
work assigned to him by USSSA. The conduct
complained of did not occur where the tournament was located and did not occur at the time
Cox made the decision to forfeit the Outlaws’
game as evidenced by the fact that the Warrens
went later to confront Cox about the forfeiture.
The alleged assault did not arise out of any natural impulse incident to completing USSSA’s
business. There is no indication that Cox was
required to perform any acts for USSSA which
would create a natural impulse to commit an
assault.
¶33 Plaintiffs have failed to allege facts sufficient to show that an exception to the general
rule applies here. We must apply the general
rule that an assault on a third party is not within the scope of employment. The trial court did
not err in granting summary judgment in favor
of USSSA because the alleged assault did not
occur while Cox was acting within the scope of
his alleged employment or agency relationship.
CONCLUSION
¶34 The trial court did not err in granting
USSSA’s motion to dismiss Plaintiffs’ claims for
intentional infliction of emotional distress and
false light invasion of privacy because Cox’s
Vol. 77 — No. 20 — 7/29/2006
behavior was not extreme and outrageous.
USSSA is further entitled to judgment as a matter of law on Judy Warren’s claim of assault.
Accordingly, we affirm the decisions of the trial
court.
¶35 AFFIRMED.
GOODMAN, J., and REIF, J. (sitting by designation), concur.
1. Rule 13 of the Rules for the District Court of Oklahoma, 12 O.S.
Revised Supp. 2005, Ch. 2, App. 1, provides for the following procedure in opposing a motion for summary judgment:
Unless otherwise ordered by the court, the adverse party shall
attach to the statement evidentiary material justifying the opposition to the motion, but may incorporate by reference material
attached to the papers of another party. In the statement, the
adverse party or parties shall set forth and number each specific
material fact which is claimed to be in controversy and reference
shall be made to the pages and paragraphs or lines of the evidentiary materials. All material facts set forth in the statement of
the movant which are supported by acceptable evidentiary
material shall be deemed admitted for the purpose of summary
judgment or summary disposition unless specifically controverted by the statement of the adverse party which is supported
by acceptable evidentiary material. If the motion for summary
judgment or summary disposition is granted, the party or parties opposing the motion cannot on appeal rely on any fact or
material that is not referred to or included in the statement in
order to show that a substantial controversy exists.
Plaintiffs failed to follow this procedure.
2006 OK CIV APP 79
TODD TRICE, Plaintiff/Appellant, v. JEFF L.
BURRESS and WESLEY UNITED
METHODIST CHURCH OF SHAWNEE,
Defendants/Appellees, The United
Methodist Church — Oklahoma Area,
Defendant.
No. 102,332. April 14, 2006
POTTAWATOMIE COUNTY, OKLAHOMA
HONORABLE JOHN D. GARDNER, JUDGE
AFFIRMED
Michael E. Grant, Oklahoma City, Oklahoma,
for Appellant,
Peter T. Van Dyke, Mark Spencer, Amy D.
White, McAfee & Taft, Oklahoma City, Oklahoma, for Appellees.
Opinion by Larry Joplin, Judge:
¶1 Plaintiff/Appellant Todd Trice (Plaintiff)
seeks review of the trial court’s order granting
the motion for summary judgment of Defendants/Appellees Jeff L. Burress and Wesley
United Methodist Church of Shawnee (individually, Burress and Wesley, or collectively,
Church) on Plaintiff’s defamation (slander)
claim. In this proceeding, Plaintiff asserts the
trial court erred as a matter of both fact and law
2123
in so disposing of his claim. Having reviewed
the record, the order of the trial court is affirmed.
¶2 Burress served as Senior Minister at Wesley. Plaintiff was a member of the Wesley congregation and Wesley employed him as Youth
Director. On or about August 21, 2002, Wesley’s
governing board voted to terminate Plaintiff’s
employment.
¶3 On August 21, 2003, Plaintiff filed his petition to commence the instant action. In the petition, Plaintiff alleged that he “was employed as
the Youth Director at Wesley until August 21,
2002 when he was terminated for reasons which
are not clear to him;” but, that “[s]ubsequent to
that time, Burress, acting in his capacity as
Senior Minister of Wesley, told persons in the
Church and in the community that [Plaintiff]
was terminated from his job because he was
questioning his sexuality.” Plaintiff asserted
Burress’ statements constituted slander and
claimed actual and punitive damages for
defamation.
¶4 Church answered, denying the statements
were made. Alternatively, Church asserted the
statements were true or made on a conditionally
privileged occasion.
¶5 Church then filed a motion for summary
judgment. To the motion, Church attached evidentiary materials showing Plaintiff’s continued
membership at Wesley after his termination, and
the deposition testimony of Lauren Heer, a
young member of Wesley, allegedly the only person to whom Burress published the “questioning his sexuality” statement some six months
after Plaintiff’s termination.
¶6 In support of its motion, Church asserted,
inter alia, that the statement by Burress concerned the internal discipline of an existing
member, and that the statement was published
by Burress to only one member of the Church,
all other publications having been by Plaintiff.
So, said Church, it was shielded from liability by
the free-exercise-of-religion clause of the First
Amendment to the United States Constitution.
See, Hadnot v. Shaw, 1992 OK 21, ¶26, 826 P.2d
978, 9871; Guinn v. Church of Christ of Collinsville,
1989 OK 8, ¶21, 775 P.2d 766, 774.2 Alternatively,
Church argued, the alleged statement by Burress
to other member(s) of the congregation regarding Plaintiff’s termination constituted privileged
communication(s) on matters of common interest. See, 50 Am.Jur.2d, Libel and Slander, §340.3
See also, Restatement of Laws, Second, Torts 2d,
§596 (1977), comment (e).4
¶7 Plaintiff responded, objecting to Church’s
motion for summary judgment. Plaintiff contest2124
ed the allegation of a single publication by Burress, pointing to the deposition testimony of Ms.
Heer which arguably showed the presence of
one or two other young members of the congregation at the time Burress made the alleged
defamatory statement. Plaintiff also adduced
notes from the meeting of Wesley’s governing
board arguably demonstrating his termination
for breach of policy and procedure governing
the conduct and financing of youth outings, and
further argued that Burress’ statement did not
consequently concern the imposition of discipline for violation of any ecclesiastical doctrine
of the Methodist Church. So, said Plaintiff, Burress’s statement stood outside First Amendment
protections. Guinn, 1989 OK 8, ¶34, 775 P.2d at
779, fn. 48.
¶8 On consideration of the parties’ submissions and argument, the trial court granted
judgment to Church, finding:
. . . [A]s a matter of law, the alleged statement attributed to Defendants is not slander per se; and . . . the alleged statement
attributed to Defendant Rev. Jeff Burress
was allegedly made to a church member
about a terminated staff member, who was
also a church member; accordingly, the
alleged statement is constitutionally protected. See Guinn v. Church of Christ of
Collinsville, 1989 OK 8, 775 P.2d 766.
Plaintiff appeals,5 and the matter stands submitted for accelerated review on the trial court
record.6
¶9 “Summary judgment is appropriate only
where there are no material facts in dispute and
matter of law.” Wathor v. Mutual Assur. Adm’rs,
Inc., 2004 OK 2, ¶4, 87 P.3d 559, 561. “As this
decision involves purely legal determinations,
our standard of review of a trial court’s grant of
summary judgment is de novo.” Id. That is, “this
Court will examine pleadings and evidentiary
materials to determine what facts are material
and whether there is substantial controversy as
to one material fact,” and “[w]e review all inferences and conclusions to be drawn from underlying facts contained in evidentiary materials in
a light most favorable to the party opposing the
motion.” Sperling v. Marler, 1998 OK 81, ¶3, 963
P.2d 577, 579; Wathor, 2004 OK 2, ¶4, 87 P.3d at
561. “If substantial controversy as to a material
fact exists,” or “[i]f the uncontroverted facts support legitimate inferences favoring well-pleaded
theory of the party against whom the judgment
is sought or if the judgment is contrary to substantive law, the judgment will be reversed.”
Vol. 77 — No. 20 — 7/29/2006
Sperling, 1998 OK 81, ¶3, 963 P.2d at 579; Wathor,
2004 OK 2, ¶4, 87 P.3d at 561.
¶10 “In order to recover for defamation, a private figure must prove (1) a false and defamatory statement, (2) an unprivileged publication to
a third party, (3) fault amounting at least to negligence on the part of the publisher; and (4)
either the actionability of the statement irrespective of special damage, or the existence of special
damage caused by the publication.” Mitchell v.
Griffin Television, L.L.C., 2002 OK CIV APP 115,
¶5, 60 P.3d 1058, 1061. “A publication is actionable per se only when the language used is susceptible of but one meaning, and that an opprobrious one.” Krebsbach v. Henley, 1986 OK 58,
¶18, 725 P.2d 852, 856. If the statement “has no
overt opprobrious connotations,” and “[a]ny
defamatory meaning . . . come[s] in the form of
insinuation from the language,” “[t]his places
the allegation in the realm of slander per quod,”
requiring the pleading and proof of special damages. Krebsbach, 1986 OK 58, ¶¶18, 19, 725 P.2d at
856.
¶11 In the present case, Burress denied he ever
made the complained-of statement, but Plaintiff
presented evidentiary materials demonstrating
a publication of the allegedly defamatory statement to at least one parishioner. But, Plaintiff
neither plead nor presented evidentiary materials arguably demonstrating actionable special
damages to support a claim of defamation per
quod.7 For purposes of the following discussion
only, however, we assume the statement was
published and constitutes slander per se.
¶12 The free-exercise-of-religion clause of the
First Amendment to the United States Constitution guarantees a church the right, without fear
of judicial interference, to impose on its members discipline for breach of ecclesiastical doctrine so long as the member remains a member
of the church. Guinn, 1989 OK 8, ¶21, 775 P.2d at
774.8 Consequently, “[t]he First Amendment will
protect and shield the religious body from [tort]
liability for the activities carried on pursuant to
the exercise of church discipline,” and “[w]ithin
the context of ecclesiastical discipline, churches
enjoy an absolute privilege from scrutiny by the
secular authority.” Hadnot, 1992 OK 21, ¶26, 826
P.2d at 987; Guinn, 1989 OK 8, ¶21, 775 P.2d at
774. Only where the imposition of ecclesiastical
discipline poses an immediate threat to “the
public safety, peace or order” is the mantle of
absolute constitutional privilege shed. Guinn,
1989 OK 8, ¶¶14, 18, 775 P.2d at 770-771, 773.
¶13 Plaintiff argued, however, that the First
Amendment offered no protection to defamatoVol. 77 — No. 20 — 7/29/2006
ry statements unrelated to church discipline. In
support, Plaintiff pointed to both Guinn and
Hadnot recognizing that, “‘[u]nder the banner of
the First Amendment provisions on religion, a
clergyman may not with impunity defame a
person, intentionally inflict serious emotional
harm on a parishioner, or commit other torts,’”
and that, “[a]t the point when the church-member relationship is severed through an affirmative act either of a parishioner’s withdrawal or
of excommunication by the ecclesiastical body, .
. . , the absolute privilege from tort liability no
longer attaches.” Guinn, 1989 OK 8, ¶34, 775 P.2d
at 779, fn. 48; Hadnot, 1992 OK 21, ¶32, 826 P.2d
at 989. So, said Plaintiff, because Burress’s statement came six months after the termination
decision and did not accurately convey the governing board’s professed reasons for his termination, the First Amendment bar recognized in
Guinn and Hadnot did not apply.
¶14 We disagree. The statement of which
Plaintiff complained related to the ostensible
reason for his termination, conveyed from the
pastor to a member of the congregation concerning the conduct of another member. At least
one court has specifically held that statements
by and between church members “relat[ing] to
the Church’s reasons and motives for terminating [parishioners’] membership” “require an
impermissible inquiry into Church disciplinary
matters,” and that the First Amendment precludes a member’s defamation “claim [which]
clearly involves an internal conflict within the
Church.” Schoenhals v. Mains, 504 N.W.2d 233,
236 (Minn. App. 1993). We are persuaded that
examination of Burress’s statement in the present case likewise requires an impermissible
inquiry into Church disciplinary matters, barred
by the First Amendment.
¶15 Even if not absolutely barred by the First
Amendment, Church is shielded from tort liability by a conditional or qualified privilege. In
addition to the absolute immunity afforded by
the First Amendment, a church or other religious organization ordinarily bears no tort liability for statements by or between church officers or members concerning the conduct of
other officers or members, because “communications between members of a religious organization concerning the conduct of other members
or officers in their capacity as such are qualifiedly privileged” as matters affecting a common
interest or purpose. 50 Am.Jur.2d, Libel and
Slander, §340; Restatement of Torts 2d, §596,
comment (e). This is especially so where “the
publication is made in response to a request
rather than volunteered by the publisher.”
2125
Restatement of Torts 2d, §595(2)(a). So, where
the alleged defamatory statements are
exchanged by or between members of the congregation during or as result of either a church’s
decision to employ, retain or terminate a clergyman or lay employee, or a church’s review of the
performance of a clergyman or lay employee,
the conditional privilege shields the church from
liability for defamation. See, e.g., State ex rel. Gaydos v. Blaeuer, 81 S.W.3d 186 (Mo. App. 2002)9;
Singleton v. Christ the Servant Evangelical Lutheran
Church, 541 N.W.2d 606 (Minn. App. 1996)10; Joiner v. Weeks, 383 So.2d 101 (La. App. 1980)11;
Rankin v. Phillippe, 211 A.2d 56 (Pa. Super. 1965)12;
Slocinski v. Radwan, 144 A. 787 (N.H. 1929).13
¶16 In the present case, a member of the congregation asked Burress, the congregation’s
minister, why Plaintiff had been terminated, or,
in other words, requested information concerning Plaintiff’s conduct or qualifications for
office. The complained-of statement occurred in
the course of Burress’s response to his parishioner’s inquiry, that is, during an exchange
between one member of the congregation and
another member of the congregation concerning
the acts of a third member of the congregation.
The uncontroverted evidence thus demonstrates
publication of the complained-of statement
occurred on a conditionally privileged occasion,
and the record contains no evidence even
remotely suggesting the destruction of the conditional or qualified privilege by abuse or malice. See, Restatement of Torts 2d, §599, comment
(a)14; Wright v. Haas, 1978 OK 109, ¶8, 586 P.2d
1093, 109715; Beshiers v. Allen, 1915 OK 182, ¶0(1),
148 P. 141.16
¶17 We consequently hold neither Burress nor
Wesley bear any liability in tort for defamation,
Church enjoying either the First Amendment’s
absolute protection of ecclesiastical discipline, or
the qualified protection of comments on matters
of common concern. The trial court did not err in
granting judgment to Church. The order of the
trial court is therefore AFFIRMED.
BELL, P.J., concurs, and HANSEN, J., concurs in
result.
1. “The church’s jurisdiction exists as a result of the mutual agreement between that body and its member. . . . That relationship may be
severed freely by a member’s positive act at any time. Until it is so terminated, the church has authority to prescribe and follow disciplinary
ordinances without fear of interference by the state. The First Amendment will protect and shield the religious body from liability for the
activities carried on pursuant to the exercise of church discipline.
Within the context of ecclesiastical discipline, churches enjoy an
absolute privilege from scrutiny by the secular authority.”
2. “Under the First Amendment’s Free Exercise Clause, Parishioner had the right to consent as a participant in the practices and
beliefs of the Church of Christ without fear of governmental interference. As the Church’s chosen spiritual leaders, the Elders were responsible for providing guidance to all those who, like the Parishioner, had
2126
chosen to follow. Under the Free Exercise Clause the Elders had the
right to rely on Parishioner’s consensual participation in the congregation when they disciplined her as one who had voluntarily elected
to adhere to their doctrinal precepts. Parishioner’s willing submission
to the Church of Christ’s dogma, and the Elders’ reliance on that submission, collectively shielded the church’s prewithdrawal, religiouslymotivated discipline from scrutiny through secular judicature.”
3. “It seems apparent that the common interest of members of religious associations is such as to afford the protection of qualified privilege to communications between them in furtherance of their common purpose or interest. Thus, communications between members of
a religious organization concerning the conduct of other members or
officers in their capacity as such are qualifiedly privileged. It has been
said that a priest and his church have a mutual interest in preserving
respect for, and obedience to, ecclesiastical edicts of their governing
authority, with a qualified privilege to refute and negate the efforts of
anyone publicly challenging its orders and teachings, short of expressly or impliedly charging personal immorality or criminality. . . .” (Footnotes omitted.)
4. “The common interest of members of religious, fraternal, charitable or other non-profit associations, whether incorporated or unincorporated, is recognized as sufficient to support a privilege for communications among themselves concerning the qualifications of the
officers and members and their participation in the activities of the
society. This is true whether the defamatory matter relates to alleged
misconduct of some other member that makes him undesirable for
continued membership, or the conduct of a prospective member. So
too, the rule is applicable to communications between members and
officers of the organization concerning the legitimate conduct of the
activities for which it was organized. . . .”
5. Plaintiff dismissed his claim against Defendant The United
Methodist Church — Oklahoma Area without prejudice.
6. See, Rule 13(h), Rules for District Courts, 12 O.S. 2001, Ch. 2,
App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. 2001,
Ch. 15, App.
7. Assuming the “questioning his sexuality” statement imputes
homosexuality, the better reasoned line of authorities treats an accusation of homosexuality as defamatory per quod, requiring the pleading
and proof of special damages. See, Miskovsky v. Tulsa Tribune Co., 1983
OK 73, ¶¶21, 33-34, 678 P.2d 242, 248, 249-250. See also, Wilson v. Harvey, 842 N.E.2d 83 (Ohio App. 2005); Donovan v. Fiumara, 442 S.E.2d 572
(N.C. App. 1994); Hayes v. Smith, 832 P.2d 1022 (Colo. App. 1991). And
see, McGee v. Gast, 572 S.E.2d 398 (Ga. App. 2002) (Plaintiff’s alleged
loss of income after he was fired from his paid summer job did not
constitute “special damages” in support of claim of defamation per
quod, where Plaintiff “failed to offer any evidence to show the defendant’s words caused his purported damages”); Zeran v. Diamond
Broadcasting, Inc., 203 F.3d 714 (10th Cir. (Okla.) 2000) (“Emotional distress is not a form of special damages, and Plaintiff’s de minimis medical expenses, consisting of one visit to his physician and one prescription drug purchase, are insufficient to support the cause of action
for defamation per quod”).
8. Footnote 2, supra.
9. Held: no jurisdiction to entertain former parochial school
administrator’s defamation action against diocesan bishop, parish rector, and superintendent of diocesan schools, where allegedly defamatory statements were made in context of church officials’ decision not
to renew administrator’s contract on alleged grounds relating to
appropriateness of her continued employment as part of church’s religious leadership, and/or by, to, and about church members relating to
matters within the religious cognizance of the diocese.
10. “The allegedly defamatory statements in this case, all of which
the record reflects were communicated at task force meetings or
Church council meetings and dealt with Singleton’s actions as a pastor, fall within the Church’s conditional privilege.”
11. “To decide this case we must balance the right of an individual
to protect his good name and reputation against the right of a religious
organization to conduct its affairs free of civil court scrutiny or intrusion. The balance we strike favors the religious organization since we
recognize that a qualified privilege exists which protects the actions of
the Board and the statements made by the Board members during the
December 10, 1976, meeting.”
12. “[I]n the instant case all of the members of the Chester church
had a common interest in the controversies that occasioned the
appointment of the ecclesiastical commission and its report. As the
court below said: ‘Thus, the conditional privilege extends to the members of the Third Presbyterian Church, all of whom had a very real
interest in the resolution of problems which had involved the handling
of the church’s affairs. Publication could only have been excessive if it
had been made to persons who did not have a common interest, and
Vol. 77 — No. 20 — 7/29/2006
no such publication was made. [I]t is the duty of the court, not the jury,
to rule on the question of conditional privilege, and, by definition, the
conditional privilege in this case extended to those in the Third Presbyterian Church. Publication to these members could not have been an
abuse of that privilege.’ The court properly determined, as a matter of
law, that the communication was conditionally privileged.”
13. “The idea that the conduct of a minister should be mentioned
unfavorably only at church meetings, or before tribunals having
authority in the premises, suggests an undesirable departure from the
usual course of events. . . . Individual church members are not accustomed to bring the various items of gossip which may be in circulation
about the minister to the attention of the governing boards of the
church, nor is it desirable that they should do so. . . . [I]nstances in
which charges are presented and heard by the constituted church
authorities evidence the culmination of considerable periods of private discussion amongst the members of the congregations involved.
Any rule designed to penalize the formation of public sentiment in
such cases by arresting the preliminary sifting of reports through private discussion, free from the taint of malice and for a proper purpose,
is without justification and would be foredoomed to practical failure
as an attempt to decree that men and women shall not act like human
beings.”
14. “The unreasonable exercise of the conditional privilege is an
abuse of it that defeats the protection otherwise afforded. The privilege may be abused because of the publisher’s knowledge or reckless
disregard as to the falsity of the defamatory matter; because the
defamatory matter is published for some purpose other than that for
which the particular privilege is given; because the publication is
made to some person not reasonably believed to be necessary for the
accomplishment of the purpose of the particular privilege; or because
the publication includes defamatory matter not reasonably believed to
be necessary to accomplish the purpose for which the occasion is privileged.”
15. “[A] conditional privilege created at common law is lost
through abuse. One such identical abuse is knowing the defamatory
matter to be false, or acting in reckless disregard as to its truth or falsity.”
16. “Words actionable in themselves . . . are qualifiedly privileges
if they are spoken in good faith, with honest belief they are true, with
the sole intent of aiding justice, and with no motive or intent to injure
the person spoken of.”
2006 OK CIV APP 80
RAYMOND D. HALE and LILLIAN HALE,
Plaintiffs/Appellees, v. A.G. INSURANCE
COMPANY, Defendant/Appellant.
No. 101,208. March 24, 2006
AS CORRECTED: April 5, 2006
McINTOSH COUNTY, OKLAHOMA
HONORABLE GENE F. MOWERY, JUDGE
REVERSED WITH DIRECTIONS
Richard D. Gibbon, GIBBON, BARRON, &
BARRON, P.A., Tulsa, Oklahoma, for Plaintiffs/Appellees,
Neal E. Stauffer, John A. Coates, Nathan G.
Parrilli, STAUFFER, GRAVES & NATHAN,
Tulsa, Oklahoma, for Defendant/Appellant.
Kenneth L. Buettner, Chief Judge:
¶1 Defendant/Appellant A.G. Insurance
Company, an Oklahoma Farm Bureau company, (Insurer), appeals from a judgment entered
in favor of Plaintiffs/Appellees Raymond D.
Vol. 77 — No. 20 — 7/29/2006
and Lillian Hale. The Hales filed their Petition
alleging Insurer breached its duty of good faith
and fair dealing following the Hales’ claim for
insurance benefits. The Hales did not state a
claim for breach of the insurance contract.1 The
Hales sought compensation for a loss under
the fire coverage provision of the property
insurance policy covering a convenience store
owned by the Hales. The evidence admitted at
trial showed Insurer had a legitimate dispute
to the Hales’ claim, which Insurer was entitled
to have resolved at trial. Where an insurance
company has a legitimate dispute to a claim,
there can be no bad faith. Accordingly, the trial
court erred in submitting the issue of bad faith
to the jury. We reverse.
¶2 The Hales purchased a convenience store
in Eufaula, Oklahoma. Their son, Raymond C.
Hale (Chance Hale), applied for insurance for
the store from Insurer. Insurer is a mutual
insurance company owned by its members.
The application for insurance listed Chance
Hale and the Hales as members. The policy
states the named insured is “Chance’s Convenience Store.” The evidence indicated Chance
Hale was the primary operator of the store.
Insurer sent notice to the store that it was cancelling the policy for non-payment and that the
policy would be void as of December 11, 2001.2
At that time, the Hales were staying in Arizona
because of Mr. Hale’s health. On December 7,
2001, Chance’s Convenience Store was
severely damaged in a fire.
¶3 Insurer immediately began to investigate
the fire. The State Fire Marshall determined the
fire was caused by arson, and Insurer discovered evidence of financial motive on the part of
the Hales and Chance Hale. The Hales
returned to Oklahoma in May 2002 and filed a
proof of loss statement May 13, 2002. The
Hales filed their bad faith Petition August 21,
2002.3
¶4 In its Answer, Insurer denied that it had
acted in bad faith and denied the Hales’
claims.4 Insurer also denied the Hales are the
sole owners of the insured property.5
¶5 Jury trial was held June 7-10, 2004. The
trial court excluded any evidence obtained by
Insurer more than 90 days after the Hales submitted their proof of loss. The jury returned its
verdict, finding in favor of the Hales and
awarding actual damages of $226,000. The verdict form further indicated the jury found by
clear and convincing evidence that Insurer
2127
recklessly disregarded its duty to deal fairly
and act in good faith with the Hales. The jury
then awarded punitive damages of $226,000.6
The trial court awarded $23,818.03 in prejudgment interest and $16,475.50 as costs and
attorney fees, for a total judgment of
$492,293.53.
cases indicates the cutoff for relevant evidence
is the date of payment or denial of the claim.
The duty of good faith and fair dealing exists
during the time the claim is being reviewed.
See Newport v. USAA, 2000 OK 59, 11 P.3d 190
and Skinner v. John Deere Ins. Co., 2000 OK 18,
998 P.2d 1219.
¶6 Insurer now appeals. Insurer’s first assertion of error is that the trial court abused its
discretion in excluding any evidence obtained
by Insurer more than 90 days following the
proof of loss statement. We may not reverse a
judgment based on the trial court’s exclusion
of evidence unless it appears from review of
the whole record that the error has probably
resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional
or statutory right. Badillo v. Mid Century Ins.
Co., 2005 OK 48, ¶47, 121 P.3d 1080; 12 O.S.2001
§78 and §2104. “When it is probable a verdict
would have been unchanged even had the
rejected evidence been admitted, this Court is
not warranted in reversing the cause based on
the erroneous exclusion.” Id. The trial court has
discretion to admit or exclude evidence. Id. at
¶60. The Hales argued, and the trial court
agreed, that based on 36 O.S.2001 §3629,7 an
insurance company has a duty to settle or deny
a claim within 90 days and that therefore any
information obtained by the insurer later than 90
days after the proof of loss is not relevant to a
bad faith claim. Section 3629 is a prevailing
party attorney fees provision. It serves to
encourage prompt resolution of insurance
claims by keying entitlement to an award of
fees to a particular date. Association of County
Com’rs of Oklahoma v. National American Ins. Co.,
2005 OK CIV APP 44, ¶19, 116 P.3d 206. However, the 90 day time period in §3629 does not
trigger liability under the policy. Shinault v.
Mid-Century Ins. Co., 1982 OK 136, 654 P.2d
618. In Shinault, the Oklahoma Supreme Court
held that §3629 affects the right to prevailing
party attorney fees only, and states that the bad
faith remedy is available for cases where the
insurer’s conduct is malicious or indifferent to
the claim. Id. at 619. Nothing in Shinault suggests bad faith is triggered by the expiration of
the 90 days in the attorney fees statute. We
have found no case limiting admissible evidence to that obtained within the arbitrary
period of 90 days. Indeed, we have found no
bad faith case even addressing the issue of
excluding evidence gained in investigating a
claim beyond 90 days; the analysis in bad faith
¶7 In this case, Insurer challenges the exclusion of the statements under oath made by the
Hales, the Hales’ joint personal tax returns for
the years 2000 and 2001, and Chance Hale’s
personal tax return for the year 2000. The
Hales’ statements under oath were made September 4, 2002, which was about 110 days after
they submitted their proof of loss. The record
contains correspondence between counsel for
the Hales and Insurer showing Insurer
attempted to take the Hales’ statements under
oath in July 2002. The Hales’ statements under
oath include relevant evidence on the key issue
of financial motive, which was one of Insurer’s
stated bases for denying the claim. The statements also were relevant for impeachment
purposes. The trial court abused its discretion
in excluding the statements under oath. The
tax returns also were relevant to show financial
motive, as well as Chance Hale’s ownership
interest. Insurer sought to introduce the Hales’
tax returns to impeach Lillian Hale’s testimony
that the convenience store was profitable.
Insurer sought to introduce Chance Hale’s tax
returns to show that Chance Hale claimed the
convenience store’s profits and losses on his
personal returns and listed himself as the
owner of the store on his returns. At trial,
Insurer argued that he obtained Chance Hale’s
tax returns before the 90 day period passed.8
The Hales argued the returns of a non-party
were not relevant. Insurer attached Chance
Hale’s tax return to its September 30, 2002
Motion to Join Chance Hale as a party. That
date was less than two months after the 90 day
cutoff imposed by the trial court. Chance
Hale’s tax return was relevant for Insurer’s
dispute of coverage, which again is the key
issue in a bad faith case.
2128
¶8 We find no authority for an arbitrary cutoff for admitting relevant evidence, obtained
before denial of the claim, based solely on a
prevailing party attorney fees statute. To be
sure, unreasonable delay in settling or denying
a claim is a factor in proving bad faith, but
nothing supports a finding that delay beyond
90 days is patently unreasonable. This is particularly so in a case such as this where Insur-
Vol. 77 — No. 20 — 7/29/2006
er had clear indications, from the time of the
fire, that the fire was intentionally set and that
the Hales or Chance Hale had a financial
motive. Insurer’s further investigation of those
issues was reasonable and the trial court therefore abused its discretion in excluding otherwise relevant evidence on this basis. This
exclusion was prejudicial because the jury
could have found that Insurer had a good faith
basis for denial based on the evidence that the
store burned four days before the insurance
lapsed, the owners had a financial motive for
burning the store which was losing money,
and there was evidence of arson.
¶9 Insurer next asserts the trial court erred in
denying its requests for directed verdict. We
find the evidence showed that Insurer’s coverage dispute was legitimate and that as a result,
the trial court erred in denying Insurer’s
requests for directed verdict. It is clear from the
trial court’s rulings that it confused the elements of a bad faith claim with those for
breach of contract.
¶10 An insurer has an “implied-in-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, 901.9 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,
supra 11 P.3d at 195; Conti v. Republic Underwriters Ins. Co., 1989 OK 128, 782 P.2d 1357,
1362; Buzzard v. McDanel, 1987 OK 28, 736 P.2d
157, 159.
¶11 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. Skinner, supra at
¶16. The reasonableness of any investigation
conducted by the insurer is, thus, oftentimes
Vol. 77 — No. 20 — 7/29/2006
one of the main issues in the bad faith tort case.
Hall v. Globe Life and Acc. Ins. Co., 1998 OK CIV
APP 161, ¶¶ 4-8, 968 P.2d 1263, 1265-1266 (cert.
denied). Also, expert testimony on the adequacy or inadequacy of the carrier’s pre-denial
investigation may be relied on by both sides to
support their respective positions in the case.
See Id., 1998 OK CIV APP 161, at ¶¶ 7-8, 968
P.2d at 1266.
¶12 We review the denial of a motion for
directed verdict de novo. Computer Publications,
Inc. v. Welton, 2002 OK 50, 49 P.3d 732, 735.
After taking as true all evidence favorable to
the non-moving party and all reasonable inferences drawn therefrom, and disregarding all
evidence favorable to the moving party, we
will affirm the denial of a directed verdict
unless there is an entire absence of proof on a
material issue. Id., citing Franklin v. Toal, 2000
OK 79, ¶ 13, 19 P.3d 834, 837; 12 O.S.2001 §698.
To determine whether Insurer was entitled to a
directed verdict then, we must take all of the
evidence in the light most favorable to the
Hales and only if there is an entire absence of
proof on the issue of unreasonable conduct by
Insurer will we find error in the denial of the
request for directed verdict. In Badillo, supra,
the court recognized that a directed verdict
should be granted only if the party opposing
the motion has failed to demonstrate a prima
facie case for recovery. 121 P.3d at 1092, citing
Gillham v. Lake Country Raceway, 2001 OK 41, 24
P.3d 858. The court then explained that the
essential elements [plaintiffs were]
required to show to make out a prima facie
case were as follows: 1) [they were] covered under the . . . insurance policy . . . ; 2)
the actions of insurers were unreasonable
under the circumstances; 3) insurers failed
to deal fairly and act in good faith toward
[them] in their handling of the . . . claim;
and 4) the breach or violation of the duty of
good faith and fair dealing was the direct
cause of any damages sustained by [plaintiffs].
Badillo, supra, 121 P.3d at 1093. 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 The Hales argue Insurer acted in bad
faith by investigating the loss — specifically in
investigating the cause of the fire, the owner-
2129
ship of Chance’s Convenience Store, and the
financial circumstances of the Hales and their
son; and by not paying the claim within 90
days of their proof of loss. John Richardson,
the adjuster who handled the Hales’ claim testified during the Hales’ case regarding Insurer’s actions after the fire.10 Counsel for the
Hales asked Richardson why the case had not
been settled and Richardson responded:
First of all the fire is an intentionally set
fire. The . . . state fire marshal agent says
that and the expert . . . Mr. Dave Dallas,
says that. It’s an intentionally set fire. . . .
The next reason is that when we begin (sic)
to look into it we found . . . (The Hales) are
in financial straits. They live on a fixed
income. . . . Mr. Hale is in terribly bad
health. And that certainly affects your
income and your lifestyle and the amount
of money you have to spend. . . .(Insurer)
had sent (The Hales) a letter, in fact two letters, before the fire explaining to them that
since they haven’t paid their premium for
their insurance policy that policy was
going to be canceled effective December
the 11th, four days after the fire. The fire
occurred four days before their policy
would have been canceled for nonpayment
of premium. . . . . I attended the cause of
origin inspection with Mr. Dallas. I wanted
to be there to see what he saw. They were
out of gas. The pumps had signs on them,
paper signs, no gas for sale. I then found
out that the store had been closed since
December the 4th, three days before the
fire. No gas for sale.11
When asked what evidence Insurer had by
August 15, 2002 to make that decision,
Richardson responded that he had evidence of
financial motive: “Certainly the motive is that
the store is closed. It’s not producing any
money.” Richardson explained that Carol Yandell, Mrs. Hale’s sister, who helped manage
the store, informed the adjuster the convenience store “had not made money since day
one, the store was not making any money at
that time. . . .” Richardson testified further on
evidence of financial motive.12 Richardson testified that Insurer decided the fire was an
arson based on physical evidence at the scene.
Richardson explained that he looked to the
Hales as having arranged the fire because
“(t)hey certainly have more than a financial
motive. They need the money. They need out
of the store.”
2130
¶14 Counsel for the Hales then asked
Richardson about the policy. Richardson
agreed that the named insured on the policy is
“Chance’s Convenience Store.” Insurer
believed Chance Hale was involved in the
ownership of the store. Richardson explained
that Chance Hale purchased the insurance,
signed all the applications for insurance, and
signed documents required by the State to be
signed by a business’s owner. Counsel for the
Hales then asked if the investigators hired by
Insurer found that the Hales were the sole
owners of the convenience store within a few
days of the fire. Richardson did not remember
that. Richardson agreed that he understood
that the Hales owned the property, but he
believed Chance Hale was a co-owner.
¶15 Another basis for Insurer’s denial of the
claim was Insurer’s belief that the Hales had
misrepresented their ownership of or the value
of certain items claimed in the proof of loss.13
Counsel for the Hales asked why Insurer did
not pay the Hales for the items that were properly listed on the proof of loss and Richardson
responded that it was insurance fraud for the
Hales to claim items that either they did not
own, or were not damaged, or were not contents. Richardson agreed no one from Insurer
ever met with the Hales after the fire, but
Richardson explained that was because first
the Hales were in Arizona for some time after
the fire, and then the Hales hired an attorney
immediately after returning from Arizona and
the adjuster could no longer speak to them
directly.14 Richardson explained that he
believed, based on the number of items
improperly included in the proof of loss, that
the Hales intended to claim things that were
not damaged or were not their property.
Richardson also testified that the Hales misrepresented their ownership in the application
for insurance filed by Chance Hale, and that
such misrepresentation affected Insurer’s view
about the Hales’ intent in making the proof of
loss.
¶16 The Hales attempted to show that Insurer’s belief that they were involved in the arson
was unreasonable.15 The Hales also claimed
Insurer acted in bad faith by performing criminal background checks on them as part of its
investigation. Richardson responded that the
background checks were a usual part of an
arson investigation.16
Vol. 77 — No. 20 — 7/29/2006
¶17 After Insurer cross-examined Richardson, the Hales rested. Insurer then demurred to
the evidence and requested either a directed
verdict or dismissal. Insurer contended that
the evidence presented had shown it had a
legitimate dispute to the claim as to the cause
of the fire, and the ownership and value of the
claimed losses. Insurer asserted the Hales had
produced no evidence to show Insurer’s denial
of the claim was unreasonable. The Hales
responded that reasonableness of the insurer’s
action is the only issue, and that what is reasonable is always a jury question. The Hales
responded also: “there is certainly a large
question as to whether or not (the Hales) had
anything to do with this fire even if it was a set
fire.” Insurer replied that the Hales therefore
admitted Insurer’s dispute was reasonable.
The trial court overruled Insurer’s requests.
¶18 In presenting its case, Insurer first called
Philip Cheatham, an agent for the State Fire
Marshal. Cheatham testified that he first
reported the cause of the fire was undetermined, but he changed his opinion to arson
because he heard someone had been seen in
the store just before the fire started and
because the store had “quite a bit of flammable
liquids inside . . . .”17 Three weeks after the fire,
Cheatham informed Insurer that he believed
the fire was an arson. Cheatham testified that
out of hundreds of fires he had investigated,
only three or four involved the insured actually lighting the match because the insureds
often are out of town or have alibis. David Dallas, Insurer’s cause and origin expert testified
next. Dallas presented photos to support his
testimony. Dallas testified that his investigation showed the convenience store fire was an
arson.18 Dallas determined that the pour patterns and the three areas of concentrated burning proved the fire was deliberately set. Dallas
testified that he did not examine the gasoline
pumps outside the store, except that he noted
the paper signs on the pumps, indicating the
store was out of gas, were not burned or
smoke-damaged.
¶19 Insurer also presented Darrin Blake,
who testified he had bought the Hales’ home.
The Hales told him they were suffering financially before the fire. The Hales wanted to alter
their agreement with Blake and there was a
confrontation when Blake wanted the change
to be in writing. Blake refused to make a payment to the Hales without an agreement in
Vol. 77 — No. 20 — 7/29/2006
writing and he later abandoned the house he
was buying from the Hales.
¶20 The Hales did not present any evidence
on the cause of the fire. At the conclusion of
Insurer’s case, it again asked for a directed verdict. The trial court responded:
Well, what the Court has heard at this time
there is no doubt in the Court’s mind thatwell, there is some doubt in my mind as to
whether this was an arson, based upon the
conflicting testimony of two witnesses. But
there is nothing in the record which can
substantiate or even lie claim to a criminal
charge of arson against Lillian and Raymond Hale. There is nothing in there. So I
would have to have that before I could go
with a motion for directed verdict. . . . .
This is a misstatement of the proof required in
a bad faith case. Insurer was required to prove
only that it had a legitimate dispute to coverage. Only in a breach of contract case, which
this was not, would Insurer be required to
prove the facts of arson and the Hales’ participation. The undisputed evidence showed
Insurer had a good faith belief, at the time it
was reviewing the case, that the claimed loss
was due to arson and that the insureds, either
the Hales or Chance Hale, had a motive. The
Hales’ asserted Insurer acted in bad faith only
in not paying their claim within 90 days and in
investigating their claim instead of paying it.
In these circumstances, an action for bad faith
will not lie. See Oulds v. Principal Mut. Life Ins.
Co., 6 F.3d 1431 (10 thCir. (Okl.)1993).
¶21 Two similar Oklahoma cases support the
conclusion there was no bad faith in this case
as a matter of law. Manis v. Hartford Fire Insur.
Co., 1984 OK 25, 681 P.2d 760, involved a suit
against an insurance company for breach of
contract and for bad faith refusal to pay a
claim. The jury found in favor of the plaintiffs
on both claims, but the insurer appealed only
the bad faith judgment. The Supreme Court
first noted that in a bad faith action, the plaintiff bears the burden of proof. Id. at 761. After
restating the law on bad faith claims, the court
found that the facts showed the insurer’s conduct in withholding payment was reasonable
because, first, there was physical evidence that
the fire was a set fire, and second, there was
circumstantial evidence, including tax returns,
showing that the burned business had operated at a loss for four years, and that the plaintiff
2131
had increased the mortgage debt on the building.19 Id. at 762. The court stated further:
The defense of arson is provable by circumstantial evidence. “In an action to
recover on a fire insurance policy that is
defended on the ground that the insured
set the fire or procured the fire set where
there is not direct proof to so connect the
insured with the fire, proof that the fire
was of incendiary origin coupled with
proof of motive, intent and opportunity on
the part of the insured constitutes sufficient evidence to justify submitting the
issue to the jury.” Defendant’s evidence, if
believed by the jury, could have supported
an arson defense.
Id. (citations omitted). The court in Manis then
explained that because there was sufficient evidence of arson that a jury could have believed
the insurer’s defense of arson, the case clearly
differed from Christian, supra, where the insurer plainly had no defense to the claim. Id. The
court noted that simply because the plaintiffs
prevailed on the breach of contract claim,
which necessarily meant the jury did not
believe the arson defense, did not mean that
insurer’s dispute of the claim was made in bad
faith. Id. The court held the insurer’s actions
were reasonable and legitimate as a matter of
law, facts were in dispute as to the cause of the
fire, and the insurer had a right to have that
dispute settled in court. Id. The court therefore
concluded that the plaintiff had failed to meet
his burden of proof and it was therefore error
to submit the issue of bad faith to the jury. The
court recognized that “(t)o hold otherwise
would subject insurance companies to the risk
of punitive damages whenever litigation arises
from insurance claims. Insurance companies
have the right to dispute a claim in good faith.”
Id.
¶22 The holding in Manis requires reversal of
this case. As noted above, at the time it was
reviewing the claim, Insurer had direct evidence that the fire was arson and it had circumstantial evidence of financial motive and
opportunity on the part of the store’s owners:
the store had been losing money, the Hales
were living on disability and had continued to
put their own money into the store to pay the
store’s bills, the store had no gasoline and had
been closed for a few days at the time of the
fire, the Hales had learned a lump sum payment from Darrin Blake would not be paid,
2132
and the insurance policy would expire in four
days due to the premium being returned for
insufficient funds. This evidence, if believed by
a jury, would have supported Insurer’s arson
defense to the claim. Under Manis, Insurer
therefore had a legitimate dispute to coverage
as a matter of law and it was error to submit
the issue of bad faith to the jury.
¶23 In Conti v. Republic Underwriters Insur.
Co., 1989 OK 128, 782 P.2d 1357, the insured’s
home was purchased by contract for deed and
legal title was put in the name of the insured’s
father. The insured and his parents considered
the home as belonging to the insured. The
insured’s father contacted the insurance company and asked for an insurance policy covering the house and designating the insured as
owner. Later, while the insured was on vacation, the home burned due to arson. The
insured’s father contacted the insurance company. When the insured returned to town, he
learned he was the prime suspect in the arson.
The insurance company questioned the validity of the claim because it was an arson and
because the local fire department told the
insurer the insured had moved items of personal property from the house to storage on
the property. The moved property was later
determined to belong to the insured’s girlfriend and to have been stored for convenience, but in the meantime, the insurer’s suspicions caused it to deny the claim. The insured
filed suit alleging causes of action for both
breach of contract and bad faith. The jury
awarded judgment to the insured on both
claims and awarded contract damages of
$64,000 and exemplary damages of $200,000
for bad faith.
¶24 The insurer appealed the denial of its
request for directed verdict on the bad faith
claim.20 The insurer in Conti asserted three
legitimate disputes. The Supreme Court found
that a directed verdict should have been granted based on the last of the three, which was the
insurer’s arson defense. The court noted it had
previously held that it was error to submit the
issue of bad faith to a jury where 1) the insurer’s evidence, if believed by the jury, could
have supported an arson defense, and 2) the
plaintiff failed to meet his burden of proof, citing Manis, supra. Conti is similar to the instant
case in that in Conti it was clear the fire was an
arson, but the facts were in dispute as to the
party responsible. In Conti, the insured failed
three polygraph tests and the trial court
Vol. 77 — No. 20 — 7/29/2006
excluded that evidence. The Supreme Court
held that the trial court should have considered that evidence in ruling on the motion for
directed verdict, because it supported the
insurer’s assertion it had a reasonable belief
that the insured was the arsonist. 782 P.2d at
1362. The court noted that whether the polygraph was accurate was not relevant; the evidence that the insurer had received those
results was relevant to show it did not act in
bad faith. Id. The court concluded that the
uncontested facts before the trial court showed
1) the loss was the result of arson, 2) the
insured failed polygraph tests, and 3) gasoline
cans were found at the scene. The court held
“(t)he aggregate of these factors demonstrate
that the appellant’s actions in withholding
payment on the claim were reasonable. Here
there was a legitimate dispute with respect to
who was responsible for the arson.” The court
therefore held that it was error to submit the
issue of bad faith to the jury. Id. The court
therefore affirmed the breach of contract judgment, but vacated the award of damages for
bad faith.
¶25 While polygraph tests were not at issue
in this case, we find similarly that the combination of the physical evidence of arson and
the evidence of financial motive (including the
timing of the fire just before insurance was
canceled for non-payment) on the part of the
Hales and Chance Hale (who Insurer had a
reasonable basis to believe was an insured
owner), gave Insurer a legitimate dispute and
a reasonable basis to investigate the claim and
to delay payment.
¶26 For the reasons explained, the evidence
submitted by the Hales presented undisputed
evidence that Insurer had a legitimate dispute
to the Hales’ claim during the time the claim
was being reviewed. Insurer did not breach its
duty of good faith by taking longer than 90
days to settle or deny the claim, and Insurer
did not breach its duty by conducting an investigation when the evidence it had showed the
fire was arson and that circumstantial evidence
indicated the Hales or Chance Hale had a
financial motive. The Hales failed to present
any evidence that Insurer acted unreasonably
in investigating this claim. Where an insurance
company has a legitimate dispute to a claim, it
does not act in bad faith to investigate and/or
litigate the claim. We therefore find the trial
court erred in submitting the issue of bad faith
to the jury here. Because we reverse the judgVol. 77 — No. 20 — 7/29/2006
ment on that ground, we do not reach Insurer’s claims that the trial court erred in instructing the jury.
¶27 This case is remanded with instructions
to enter judgment for A.G. Insurance Company.
REVERSED WITH DIRECTIONS.
ADAMS, J., and MITCHELL, P.J., concur.
1. The trial court denied Insurer’s demurrers and motions for
directed verdict. The jury verdict led to judgment, awarding compensatory damages, punitive damages, attorney fees, costs, and pre-judgment interest totaling $492,293.53.When an action is pressed for badfaith refusal to settle — first recognized as a distinct tort in Christian v.
American Assur. Co. — the plaintiff may seek damages (a) for the loss
payable under the policy together with (b) those other items of recovery that
are consistent with harm flowing from insurer’s bad-faith breach of its
implied-in-law duty to settle. In sum, while no identifiable ex contractu recovery is achieved by the victorious bad-faith plaintiff, indemnity
for loss (under the contract) constitutes the centerpiece element of damages included in every ex delicto recovery for bad-faith refusal to settle.
Taylor v. State Farm Fire and Cas. Co., 1999 OK 44, 981 P.2d 1253, 1258
(emphasis in original, citations omitted).
2. Insurer’s Exhibit 61 is a November 20, 2001 letter to “Chances,”
which states that the pre-authorized payment was returned by the
bank for insufficient funds and that “because of non-payment of premium the following policy expires and is void effective” December 11,
2001. Insurer’s Exhibit 62 is a December 4, 2001 letter to “Chances
Conv Store” which states “this is to advise you that we are cancelling
this policy . . . due to non-payment of premium.” This letter also shows
December 11, 2001 as the cancellation date.
3. In their Petition, the Hales alleged that after they made their
claim for their loss under the policy, Insurer had failed to make any
offers of settlement or to conclude its responsibility under the terms of
the policy. The Hales next averred that Insurer began its investigation,
but failed to determine the amount of the loss or the amount payable
to the Hales; they claimed Insurer instead spent its time “trying to
determine a reason for not paying the claim rather than a determination of reason for paying the claim.” The Hales asserted that Insurer’s
failure to perform an adequate and proper investigation and to determine the amount of loss within a reasonable time was a breach of the
covenant of fair dealing, which damaged the Hales in the amount of
$266,000. The Hales asserted the breach of the covenant of fair dealing
caused them mental anguish, worry and concern about Insurer’s failure to pay the amount due under the policy and about continuing to
pay the mortgage debt on the property. The Hales asserted this worry
and concern caused Raymond D. Hale’s health to deteriorate to the
point that he was hospitalized numerous times, and caused Lillian
Hale to worry about the convenience store and about her husband’s
deteriorating health. Lastly, the Hales asserted that Insurer’s investigation of their claim damaged their reputations and had been detrimental to their enjoyment of life.
While the Hales made no claim for breach of contract, they sought
damages of $266,000 “on the contractual action,” and “for actual damages on the tort of 1 million dollars and punitive damages in a sum to
be set by the jury.”
4. As affirmative defenses, Insurer alleged the fire was intentionally set, the Hales (or some other insured) caused or procured the fire,
the Hales (or some other insured) concealed the cause of the fire, the
Hales (or some other insured) made intentional material misrepresentations in their sworn proof of loss statement (Insurer alleged the
Hales claimed losses for items either they did not own or that were not
damaged in the fire), the Hales (or some other insured) materially misrepresented their activities at the time of the fire, the Hales (or some
other insured) materially misrepresented their financial condition at
the time of the fire, the Hales (or some other insured) intentionally
concealed material facts in the presentation of the claim, and that the
Hales are barred from recovering because they (or some other insured)
breached the duty of good faith and fair dealing owed to Insurer.
5. At the same time it filed its Answer, Insurer filed a motion to join
Raymond C. (Chance) Hale as a plaintiff. Insurer asserted Chance Hale
is the Hales’ adult son and that Chance and the Hales all were
involved in the ownership and operation of “Chance’s Convenience
Store.” Insurer attached the application for insurance which listed
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“members’ names” as Raymond D, Lillian, or Chance Hale, and which
was signed only by Raymond C. (Chance) Hale. The two different signature lines signed by Chance Hale on the application for insurance
included the phrase “I make each statement . . . to induce (Insurer) to
issue to me a policy of insurance . . . .” The insurance policy shows the
named insured is “Chance’s Convenience Store.” Also in its motion to
join Chance as a party, Insurer alleged Chance Hale claimed the business loss and the mortgage interest for the store on his personal tax
return for 2000. Insurer attached Chance Hale’s 2000 Tax Return,
which included Schedule C, Profit or Loss from Business, Sole Proprietor, showing Chance Hale as the proprietor of Chance’s Convenience
Store. That schedule showed a net loss of $34,524. Insurer also attached
state and federal employment tax returns filed in the name of Raymond C. (Chance) Hale d/b/a Chance’s Store. Insurer additionally
attached tax year 2001 W-2 forms for the convenience store’s employees which named Raymond C. Hale as employer. Insurer asserted that
disposition of the case without joinder of Chance Hale would possibly
leave Insurer subject to a substantial risk of incurring double or otherwise inconsistent obligations by reason of Chance Hale’s ownership
interest in the property.
The Hales responded that Chance Hale has no interest in this suit, and
they attached an affidavit from Chance Hale denying his interest in the
suit. Following a hearing in which the parties contested whether
Chance Hale was an insured under the policy, and whether he procured insurance for property he did not own, the trial court found
Chance Hale had no ownership interest in the convenience store. The
trial court overruled Insurer’s motion to join Chance Hale as a plaintiff.
Insurer has not raised this issue in its appellate brief. However, the evidence of Chance’s ownership actions and apparent financial motive
are relevant to a determination of Insurer’s belief, at the time its performance was requested, whether it had a legitimate dispute to coverage.
At a minimum, evidence that Chance Hale claimed business losses for
a business he purportedly did not own suggests fraud. The trial court
found Insurer had not alleged fraud with sufficient specificity in its
Answer.
6. The jury indicated it did not find by clear and convincing evidence that Insurer intentionally and with malice breached its duty of
good faith. The punitive damages amount was therefore limited to the
greater of $100,000 or the amount of actual damages. 23 O.S.Supp.2002
§9.1(B).
7. That statute provides:
A. An insurer shall furnish, upon written request of any insured
claiming to have a loss under an insurance contract issued by such
insurer, forms of proof of loss for completion by such person, but such
insurer shall not, by reason of the requirement so to furnish forms,
have any responsibility for or with reference to the completion of such
proof or the manner of any such completion or attempted completion.
B. It shall be the duty of the insurer, receiving a proof of loss, to
submit a written offer of settlement or rejection of the claim to the
insured within ninety (90) days of receipt of that proof of loss. Upon a
judgment rendered to either party, costs and attorney fees shall be
allowable to the prevailing party. For purposes of this section, the prevailing party is the insurer in those cases where judgment does not
exceed written offer of settlement. In all other judgments the insured
shall be the prevailing party. If the insured is the prevailing party, the
court in rendering judgment shall add interest on the verdict at the
rate of fifteen percent (15%) per year from the date the loss was
payable pursuant to the provisions of the contract to the date of the
verdict. This provision shall not apply to uninsured motorist coverage.
8. Chance Hale’s statement under oath was taken August 14, 2002,
the 90 th day following the proof of loss.
9. In Christian, the evidence at trial showed that the insurance company did not have, and had never had, a defense to the plaintiff’s
claim.
10. Richardson testified that a couple of days after the fire, Insurer’s field adjuster called to tell him there had been a major fire at a convenience store. Richardson explained that when faced with a major
fire, Insurer’s first task is determining the cause of the fire. Richardson
hired Dallas and Associates, a fire cause and origin consultant.
11. Richardson testified that Insurer did not believe the Hales actually started the fire, but that the Hales “understood the fire was going
to be set in order to fraud the policyholders of (Insurer).” He believed
the Hales were a party to the arson.
12. Richardson explained that to get capital to buy the convenience
store, the Hales had sold their home to Darrin Blake, who owed the
Hales an $85,000 balloon payment right at the beginning of 2002.
Before the fire, the Hales learned that Blake would not be paying them.
Richardson then explained another reason for his conclusion the Hales
were party to the fire: “In the gasoline it became apparent that they
2134
had not been able to pay for gasoline. They had written – I call them
hot checks-insufficient fund checks to pay for gasoline. And the supplier had told them that unless they had the money they weren’t getting anymore gasoline. And apparently they didn’t because they didn’t have gasoline.” Richardson also testified the Hales had a dispute
with another gasoline distributor, Hooten Oil, over $11,000.
13. Richardson explained that on their proof of loss, the Hales
claimed fixtures, such as ceiling fans, kitchen sinks, a walk-in refrigerator, bathroom fixtures, and faucets as lost contents. Richardson further testified the Hales claimed to have lost an ATM machine worth
$26,000 and an ice machine, both of which the Hales did not own. The
Hales also claimed the gas pumps as a loss, but those were not damaged in the fire.
14. Counsel suggested the Hales may not have understood that
fixtures were not contents, and asked if normally Insurer would send
an adjuster to help its insureds make a proper claim.
15. Richardson agreed that long before the fire, Insurer’s agent recognized the improvements the Hales were making to the store and
increased the amount of contents coverage. Richardson explained,
however:
A: Things change. I think they did have every intention of making the
store go, and it being a profitable venture and helping them in their
retirement. You bet. I believe that was their intention. And they did it
with every goal to do that. And I applaud it. It just didn’t work.
Q: In your investigation that you have before you and you weigh that
investigation and come up with the determination that that (sic) they
were forced into burning the store because of their financial condition.
What other evidence did you have that just said that’s crazy? Crazy.
A: I don’t understand your question. I’m sorry.
Q: Well, did you have evidence in your file that if you would have give
(sic) consideration to that would have made your decision just flat
crazy?
***
Q: . . . Let me try again. Did you have anything in your file that
weighed in relation to the value of this property, the future picture that
this property had, the fact that it – that there was (sic) people wanting
to buy it, that there were people of – very substantial people telling
your file through your investigation that these two people are as
upright and as great as they are they’ve got something over there that
is a golden egg – I’m using my words now – a golden egg and that this
property is going to gain in value everyday, the school’s coming in,
and they point out all of that to you. Is that in your file?
A: You know, . . ., there’s a vein of truth in what you say . . . and you
are right. The property – and I think that’s an important part here. That
location is a really, really good location. And certainly that location is
worth a lot of money without the building being on it. . . . I think Mr.
and Mrs. Hale started out with every intention of making a really nice
business here. And their goal was to have a business that would produce an income in their later years. And I applaud that. But as it
turned out it didn’t work.
Now, the property itself if still worth a lot of money. There’s a school
there. It’s a very valuable piece of land. And I couldn’t agree more
with you.
Q: What is it valuable for? . . . Is it good to have a convenience store?
A: I don’t have that background, but I assume it would be.
Q: . . . Did you have knowledge that there were people interested in
buying it?
A: It’s my understanding that there were people that had considered
buying it. I don’t know that they were interested or had made an offer.
But there had certainly been conversations about selling the business
and people buying the business, absolutely.
Q: They could have sold that property immediately and got out of
there (sic) immediate problem, if you think they had one, couldn’t
they?
A: I don’t know that they could. There was (sic) conversations about
that.
16. Richardson believed it was reasonable and proper, in a case
with an intentionally set fire, to do a criminal background check on the
insureds. The background checks revealed no criminal or civil matters
involving the Hales or Chance Hale. Counsel for the Hales asked if
Richardson was insulted that his investigator had used the word “suspect” in his report about the Hales, who were insured by Insurer.
Richardson responded that “suspect” was not his word, but that the
word was reasonable in a case where there is a set fire and Insurer
must figure out who did it.
Vol. 77 — No. 20 — 7/29/2006
17. Cheatham then presented a metal fuel can and explained why
he determined the can had been opened before the fire. Cheatham testified there were several other camp fuel cans in the store and some
had been opened before the fire, and some had been left closed
because their tops were blown off from the heat in the fire. Cheatham
did not discover pour patterns in the store. Cheatham testified that he
interviewed Chance Hale after the fire at Chance’s attorney’s office.
Cheatham also interviewed other store employees. One employee met
with Cheatham at the Eufaula pardon and parole office because she
did not want anyone to know she was talking to the investigator.
Cheatham explained that at the scene of the fire he found the camp
fuel and other flammable products. Cheatham testified also that he
called Mrs. Hale and asked to interview her in person but she never
called him back.
Cheatham testified that he learned from Chance Hale that Chance
had checked into a hotel in Tulsa at 11:24 p.m. the night before the fire,
and checked out at 11:41 a.m. the morning of the fire. Cheatham also
testified that Green the person who arrived at the store to fill the newspaper machines gave a statement to a local police officer after the fire.
He reported that he drove up at 3:30 a.m. and he thought saw a tall,
thin person walk from one end of the store to the other.
18. He testified he found glass that had been blown fifty feet from
the windows of the store, and the glass showed there had been an
accumulation of gas in the building before it ignited. Dallas determined there was no fire in the building “before ignition occurred to
displace this glass. Otherwise there would be carbon deposits on the
glass.” Dallas found that the front door of the store had carbon on it,
indicating it was closed at the time of the fire. Dallas determined the
back door was closed during the fire too, based on areas where the
door was not damaged by heat and areas where it was damaged and
insulation had melted out. He determined the back door had been
opened by “fire service activities.”
Dallas found evidence showing the direction the fire spread. Dallas
found three areas of concentrated burning. Dallas testified that he
found fuel containers on storage shelves and determined that one can
was closed because it was bulging, but another one was empty and the
cap was gone. Another can had the cap on and was partially bulging,
which showed Dallas it was empty enough that it did not explode or
blow the cap off.
Dallas found the source of ignition was a kerosene lantern, and from
the carbon pattern on the lantern, he determined it had been laying on
its side during the fire. Dallas also found that the stock level in the
store was low at the time of the fire. Dallas testified that the burn area
he found in the dining room of the convenience store showed a burn
pattern consistent with poured liquid fuel, which circled around
toward the kitchen and went over a table and chairs, damaging the
seats and table top. From the dining area, the pour pattern went
towards the cash register.
19. These facts are clearly distinguishable from those in McCoy v.
Okla. Farm Bureau Mut. Ins. Co., 1992 OK 43, 841 P.2d 568, where the
jury found in favor of the plaintiff on breach of contract and bad faith,
the Oklahoma Court of Civil Appeals reversed the bad faith judgment,
and the Oklahoma Supreme Court reinstated and affirmed the bad
faith judgment. In McCoy, the plaintiff alleged his home burned due to
faulty wiring. The insurance company waited a year before asserting
its defenses that the fire was arson, the plaintiff misstated his losses,
and the homeowner increased or ignored the hazard leading to the
loss. The insurance company’s adjuster found nothing suspicious
about the fire and requested an advance payment to the homeowner,
the insurance company’s internal documents showed the company
was experiencing cash flow problems and had directed its adjusters to
stall payment of claims, there was conflicting evidence on the cause of
the fire, the State Fire Marshal ruled the fire was accidental, and eyewitnesses contradicted (and the plaintiffs expert impeached) the testimony of the insurance company’s cause and origin expert, who
offered the only testimony that the fire was arson. The homeowner
also showed that he had paid all premiums due on the policy and otherwise disproved the insurance company’s claim that he was in a
financial bind. The Supreme Court found the jury had been presented
with conflicting evidence of whether the insurer had a good faith
belief, at the time its performance was requested, that it had a legitimate basis for withholding payment, and held there was competent
evidence to support the jury’s bad faith verdict. Id. at ¶¶21-22.
The facts of this case are also clearly distinguishable from those in
McCoy. In this case, the Hales offered no evidence of any other cause
of the fire, there was no evidence that Insurer sought to avoid paying
otherwise valid claims, the State Fire Marshal and Insurer’s expert
agreed the fire was arson, the evidence showed the store was strug-
Vol. 77 — No. 20 — 7/29/2006
gling financially, and Insurer determined immediately that the fire had
been set intentionally — it did not posit that defense belatedly.
20. The Supreme Court easily disposed of the insurer’s first asserted claim that there was a legitimate dispute, regarding the insured’s
interest in the property. The facts in Conti on this issue mirror those in
this case: the father purchased the home and took title, but the family
treated the home as the son’s property and it was insured in the son’s
name. In that case, the court explained that the insurer had no legitimate dispute to the son’s ownership:
The sole support for (insurer’s) argument is that bare legal title to the
property remained in the name of appellee’s father. It is an accepted
fact that the appellee had undisputed possession of the property. Nor
is there any question that the appellee enjoyed beneficial ownership,
or that he had equitable title by virtue of his contributions and the
intent expressed by all parties to the original transaction. It has long
been recognized in Oklahoma that an insurer may not escape its contractual obligation to one who has equitable title, beneficial ownership
and undisputed possession of property, even though bare legal title
rests in another.
“Insurable interest” is defined as “any actual, lawful, and substantial
economic interest in the safety or preservation of the subject of the
insurance free from loss, destruction, or pecuniary damage or impairment.” The record shows that the appellee had substantial actual, economic interest in this house, and that his interest was certainly lawful,
....
782 P.2d at 1360 (citations omitted). This analysis actually supports
Insurer’s claim here that it had a reasonable basis to investigate the
ownership of the convenience store. Although the Hales possessed
legal title and asserted the claim for policy benefits, several facts,
addressed earlier in this opinion, supported a finding that Chance
Hale was an equitable owner of the store and therefore had an insurable interest.
2006 OK CIV APP 81
SOUTHERN MATERIAL HANDLING CO.,
and FIRE & CASUALTY INSURANCE
COMPANY OF CONNECTICUT,
Petitioners, v. STEVE FALLING and the
WORKERS' COMPENSATION COURT,
Respondents.
No. 102,091. March 8, 2006
THE WORKERS’ COMPENSATION COURT
HONORABLE KENTON W. FULTON,
JUDGE
SUSTAINED
Jerrod Geiger, Pierce, Couch, Hendrickson,
Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for Petitioners,
John D. Luton, Riggs, Abney, Neal, Turpen,
Orbison & Lewis/Luton & Rackley, Muskogee,
Oklahoma, for Respondents.
Opinion by Larry Joplin, Judge:
¶1 Petitioners Southern Material Handling
Co. and Fire & Casualty Insurance Company of
Connecticut (collectively, Employer) seek
review of the trial court’s order granting benefits
to Respondent Steve Falling (Claimant) for a
cumulative trauma injury to the shoulder, and
denying Employer a credit for overpayment of
some temporary total disability (TTD) benefits.
2135
In this proceeding, Employer complains the trial
court erred in awarding benefits for the shoulder injury and denying credit because the
uncontroverted
evidence
showed:
(1)
Claimant’s last hazardous exposure to the risk of
cumulative trauma injury for more than ninety
days in a subsequent employment, thereby shifting liability for the shoulder injury to the subsequent employer under 85 O.S. §11(B)(5); and (2)
Claimant’s wage-earning employment by the
subsequent employer during the periods for
which TTD credit was denied.
¶2 Claimant worked for Employer, maintaining a fleet of forklifts. Claimant commenced the
instant action, alleging job-related, cumulative
trauma injuries to his left shoulder, left arm and
both hands1 while working for Employer, date of
last hazardous exposure in February 2003.
Claimant last worked for Employer in May
2003.
¶3 Claimant submitted to surgeries of both
hands, the left in May 2003 and the right in July
2003. Claimant underwent surgery to his left
shoulder in January 2004, and was released from
treatment of the shoulder injury in September
2004. Employer paid benefits for the medical
treatment of all injuries, and TTD from May 29,
2003 through August 14, 2004.
¶4 Claimant sought an adjudication of permanent partial disability (PPD) and need for vocational rehabilitation. Employer denied liability
for the injury to shoulder, asserting aggravation
of the condition during a period of more than
ninety days in a subsequent employment, and
the subsequent employer’s sole liability under
85 O.S. §11(B)(5). Employer also sought a credit
for overpayment of TTD for periods during
which Claimant worked for the subsequent
employer.
¶5 At trial, Claimant testified that he sustained
cumulative trauma injuries to his hands, left arm
and left shoulder while working for Employer,
and that due to the injuries, treatment of the
injuries and recovery, he could not and did not
work for weeks or months at a time. Claimant
admitted that he worked in a subsequent
employment from July 2003 to November 2003,
and after April 2004. However, Claimant asserted the subsequent employment was merely temporary and part-time, involved only light duties,
and did not require any activity which aggravated his shoulder injury. Claimant explained
that photographs purportedly showing him
engaged in apparently strenuous activities while
in the subsequent employment were staged
publicity photos. The trial court admitted
2136
time records from Claimant’s subsequent
employment.
¶6 Claimant adduced competent medical evidence showing initial treatment of his shoulder
injury, attributed to his work for Employer, prior
to any subsequent employment. Claimant also
offered competent medical evidence demonstrating job-related injuries to both hands and
left shoulder while working for Employer, consequent medical treatment, and evaluating
extent of PPD. Employer offered competent
medical evidence evaluating extent of PPD, but
attributing one-half of the shoulder impairment
to “the employment” and one-half to non-jobrelated degenerative changes.
¶7 On consideration of the evidence, the trial
court awarded Claimant PPD benefits for the
injuries to both hands and left shoulder. The trial
court granted Employer credit for overpayment
of TTD for the periods, July 28, 2003 to September 23, 2003, October 3, 2003 to November 20,
2003, and from April 1, 2004 to August 14, 2004,
but denied Employer credit for the periods,
November 20, 2003 to March 31, 2004, and September 24, 2004 to October 2, 2004. The trial
court also rejected Employer’s “Section 11(b)
defense [a]s without merit.”
¶8 In three propositions, Employer challenges
that part of the trial court’s order denying credit
for overpayment of TTD, particularly in light of
Claimant’s admission to his subsequent
employment. In its first proposition, Employer
complains there is no competent evidence to
support denial of credit for the period September 25, 2004 to October 2, 2004. In its second and
third propositions, Employer complains
Claimant failed to introduce any competent evidence of his incapacity or inability to earn wages
for the period September 24, 2003 to October 3,
2003, and November 20, 2003 to March 31, 2004.
¶9 “An employer claiming credit for overpayment of temporary disability compensation has
the burden of proof to establish the overpayment and its amount.” Zacharias v. Lancaster &
Co., Inc., 2004 OK CIV APP 90, ¶9, 99 P.3d 267,
270. (Citations omitted.) To the extent the determination of credit for overpayment turns on the
resolution of questions of fact, we review under
the “any competent evidence” standard. See, e.g.,
Gray v. Natkin Contracting, 2001 OK 73, ¶¶18-19,
44 P.3d 547, 552-553; Zacharias, 2004 OK CIV
APP 90, ¶10, 99 P.3d at 270.
¶10 As to the claim to credit for the period
September 25, 2004 to October 2, 2004, Employer admits in its brief “[t]his errant finding was
not an issue raised at trial,” and offers neither
Vol. 77 — No. 20 — 7/29/2006
argument nor authority in support of this
proposition. We consequently treat this allegation as waived or abandoned. See, e.g., Peters v.
Golden Oil Company, 1979 OK 123, ¶3, 600 P.2d
330, 331.
ance carrier, if any, on the risk when the
employee was last so exposed under such
employer, shall alone be liable therefor,
without right to contribution from any
prior employer or insurance carrier. . . .
¶11 As to the denial of the claim to credit for
the period September 24, 2003 to October 3,
2003, Employer asserts the trial court failed to
rule on that part of the overpayment claim, so
that part of the claim should be remanded for
resolution. On this issue, we have reviewed the
record. In support of the claim for overpayment,
Employer offered Claimant’s time records from
his subsequent employment, but there is no time
record showing that Claimant worked any of
those eight days between September 24 and
October 3. The burden was on Employer to
demonstrate an overpayment for that week.
Absent evidence that Claimant worked during
that period, we cannot say the lower court erred
in denying a credit for that period.
The Court of Civil Appeals has held that, by
enactment of §11(B)(5), “the Legislature intended to make the last exposure doctrine apply to
cumulative trauma cases, both for determination of the date of injury and for the determination of the liable employer in cases of multiple
employers.” Celestica Inc. v. Hines, 2004 OK CIV
APP 22, ¶9, 86 P.3d 1095, 1098. Accord, OCT
Equipment, Inc. v. Ferrell, 2005 OK CIV APP 36,
¶7, 114 P.3d 479, 481, cert. den., 2005 OK 38; Keco,
Inc. v. Hayward, 2005 OK CIV APP 53, ¶14, 123
P.3d 50, 53; Anderson Mechanical, Inc. v. Spiegel,
2005 OK CIV APP 60, ¶7, 119 P.3d 1287, 1289.
“By force of [85 O.S. §11(B)(5)], where a claimant
suffers a cumulative trauma injury in the course
of his or her employment for a single employer,
and is last injuriously exposed to the trauma
‘during a period of at least ninety (90) days,’
‘then “the insurance carrier . . . on the risk when
the employee was last so exposed . . . shall alone
be liable, therefor, without right to contribution
from any prior . . . insurance carrier.”’” Anderson
Mechanical, Inc., 2005 OK CIV APP 60, ¶7, 119
P.3d at 1289; OCT Equipment, Inc., 2005 OK CIV
APP 36, ¶7, 114 P.3d at 481. “’The insurer on the
risk on the last day of exposure is solely liable if
the claimant worked for a single employer for
the 90 days prior to last exposure.’” Anderson
Mechanical, Inc., 2005 OK CIV APP 60, ¶7, 119
P.3d at 1289; OCT Equipment, Inc., 2005 OK CIV
APP 36, ¶10, 114 P.3d at 481.
¶12 As to the denial of credit for overpayment
for the period November 20, 2003 to March 31,
2004, Claimant testified and offered competent
medical evidence demonstrating the active
treatment and recovery from surgical treatment
of the shoulder injury during this period. We
find this evidence competent to support the
denial of credit for this period.
¶13 In its last proposition, Employer argues
that, because there is some evidence showing
Claimant’s performance of manual labor erecting a green house in the course of his subsequent
employment, and because Claimant worked in
the subsequent employment for more than ninety days, the subsequent employer bears liability
for payment of benefits attributable to
Claimant’s shoulder injury under 85 O.S.
§11(B)(5). Claimant responds, asserting that the
uncontroverted evidence showed that Claimant
sustained a cumulative trauma injury to his
shoulder while working for Employer, and
because there is absolutely no evidence that
Claimant was injuriously exposed to the risk of
cumulative trauma injury to his shoulder in the
subsequent employment, §11(B)(5) does not
apply and Employer bears responsibility for all
Claimant’s benefits.
¶14 Section 11(B)(5), 85 O.S. Supp. 2003,
provides:
Where compensation is payable for an
injury resulting from cumulative trauma,
the last employer in whose employment
the employee was last injuriously exposed
to the trauma during a period of at least
ninety (90) days or more, and the insurVol. 77 — No. 20 — 7/29/2006
¶15 That said, however, it would appear that,
if the proof demonstrates the job-related exposures to a risk of cumulative trauma injury in the
last employment have not caused or contributed
to the resulting disability, §11(B)(5) would permit imposition of liability for the full extent of
cumulative-trauma-related disability on the previous employer. In this, we are persuaded by the
Oklahoma Supreme Court’s analysis of 85 O.S.
§11(B)(4), which imposes liability on the last
employer in occupational disease cases in the
same way §11(B)(5) imposes liability on the last
employer in cumulative trauma cases:
. . . . Section 11(B)(4) places the burden on the
claimant to show that the last exposure to
harmful conditions caused or contributed to
the injury. The last injurious exposure rule
relieves the employee of proving the allocation of liability among successive employers
and their insurance carriers.
2137
In cases of occupational disease, a
claimant may establish a presumptive date
of last injurious exposure and, thus, the
employer’s and insurance carrier’s presumptive liability by showing potentially
causal conditions or contributory exposure
at the employment. After an employee submits evidence of potentially causal conditions or contributory conditions at the
employment, the burden of putting forth
evidence shifts to the employer and insurance carrier. The employer may rebut the
presumption by proof (1) that the conditions
of the employment could not have possibly
caused or exacerbated the disease or (2) that
the disease was caused solely by the
employment conditions at a previous
employment, or for the insurance carrier, the
conditions occurred during a time outside of
its coverage. The burden of putting forth
evidence then is placed back on the claimant
to show that the last exposure caused or
contributed to the injury.
Heat Transfer & Equipment v. Cauthon, 2004 OK
80, ¶¶12-13, 100 P.3d 722, 725-726.
¶16 So, in cumulative trauma cases under
§11(B)(5), if the claimant demonstrates the last
exposure to potentially causal or contributory
conditions during a period of at least ninety (90)
days in the latest employment, the claimant
establishes the last employer’s presumptive liability for the full extent of the cumulative-trauma-related disability. Cauthon, 2004 OK 80, ¶13,
100 P.3d at 726. The last employer, however, may
avoid §11(B)(5) liability by proof “that the conditions of the employment could not have possibly caused or exacerbated the” cumulative-trauma-related disability, or that the cumulativetrauma-related disability “was caused solely by
the employment conditions at a previous
employment.” Id. Pursuant to the Cauthon analysis, the workers’ compensation court could, in
such a case, properly hold the previous employer liable for the full extent of a claimant’s cumulative-trauma-related disability.
¶17 In the present case, Claimant testified he
was not exposed to the risk of cumulative trauma injury to his shoulder in his subsequent
employment. Claimant also testified the photographs offered by Employer to show otherwise
were staged. Claimant adduced competent
medical evidence attributing cause of his shoulder injury to his work for Employer. Employer
offered competent medical evidence attributing
cause of part of the shoulder impairment to “the
2138
employment” based on Claimant’s reported history of injury while working for Employer.
¶18 The trial court rejected Employer’s “Section 11(b) defense” and held Employer solely
liable for the benefits payable to Claimant for the
cumulative trauma injury to his left shoulder.
We find competent testimony and medical evidence to support the conclusion that Claimant
sustained no aggravation of his cumulative trauma shoulder injury in the subsequent employment, and all of Claimant’s left shoulder impairment was attributable to the cumulative trauma
injury sustained while working for Employer.
The order of the Workers’ Compensation Court
is therefore SUSTAINED.
BELL, P.J., concurs, and HANSEN, J., concurs
in result.
1. Specifically including Carpel Tunnel.
2006 OK CIV APP 82
DOUG ISHMAEL, Plaintiff/Appellant, v.
STEPHEN L. ANDREW, and STEPHEN L.
ANDREW & ASSOCIATES, a professional
corporation, Defendants/Appellees.
No. 102,129. June 9, 2006
TULSA COUNTY, OKLAHOMA
HONORABLE DAVID L. PETERSON,
JUDGE
AFFIRMED
Richard Carpenter, CARPENTER, MASON &
McGOWAN, Tulsa, Oklahoma, for Plaintiff/
Appellant,
Joseph R. Farris, Paula J. Quillin, FELDMAN,
FRANDEN,
WOODARD,
FARRIS,
&
BOUDREAUX, Tulsa, Oklahoma, for Defendants/Appellees.
Opinion by Kenneth L. Buettner, Chief Judge:
¶1 Plaintiff/Appellant Doug Ishmael appeals
from summary judgment granted in favor of
Defendants/Appellees Stephen L. Andrew and
Stephen L. Andrew & Associates. Ishmael’s
employer hired Andrew, an attorney, to investigate an incident in which an employee’s drink
was contaminated. Andrew believed Ishmael
was the perpetrator and accused Ishmael in an
interview, but Ishmael denied any involvement
in the incident. Ishmael’s employer then terminated Ishmael’s employment due to a reduction
in force. Ishmael sued Andrew for negligent
investigation, slander, and intentional infliction
of emotional distress. The undisputed facts
Vol. 77 — No. 20 — 7/29/2006
show Andrew was entitled to judgment as a
matter of law and we affirm.
¶2 In his Amended Petition, filed February 11,
2003, Ishmael alleged that in January 2002,
Andrew investigated the poisonous contamination of an employee’s drink for Andrew’s client,
Nordam Group, Inc. Ishmael alleged that
Andrew was negligent in conducting the investigation and that Andrew slandered Ishmael by
naming Ishmael as the perpetrator of the contamination. Ishmael asserted that Andrew’s negligent investigation caused Ishmael to suffer
embarrassment, humiliation, physical pain, and
the loss of his job.
¶3 Ishmael also asserted a claim for intentional infliction of emotional distress. He claimed
Andrew intentionally harmed him by accusing
him of contaminating the drink, then labeling
Ishmael a liar when he denied the accusation, as
well as falsely informing Ishmael that Andrew
had witnesses who saw him contaminate the
drink. Ishmael alleged these intentional acts
caused him to suffer emotional and physical
harm. Ishmael also made a claim for punitive
damages.
¶4 Andrew answered and denied all of Ishmael’s claims. Andrew also filed a motion for
summary judgment.1 Andrew asserted he could
not be liable for negligent investigation because
he owed no duty to Ishmael in the investigation.
Andrew asserted that as an attorney hired by
Nordam, he owed a duty only to Nordam.
¶5 Andrew also asserted he could not be liable
for slander or defamation because Andrew’s
statements to Ishmael that Ishmael was a liar
and had contaminated the drink were Andrew’s
opinions and conclusions, and were not false
statements. Andrew also asserted that Ishmael
admitted in his deposition that he had no reason
to believe Andrew or anyone else at Nordam
accused him of the prank to anyone outside of
Nordam. Andrew noted that communication
inside a corporation between its officers,
employees, and agents is never a publication for
purposes of a defamation action, citing Thornton
v. Holdenville General Hosp., 2001 OK CIV APP
133, 36 P.3d 456. Andrew contended that as Nordam’s agent, his communications within Nordam were considered corporate communications which are not publications for defamation
purposes. Id. Finally, Andrew asserted that his
communications regarding the investigation
could not be slander because as communications made in the course of an investigation conducted in anticipation of litigation, the communications were privileged. Id.
Vol. 77 — No. 20 — 7/29/2006
¶6 Andrew also asserted that Ishmael’s claim
for infliction of emotional distress must fail
because Ishmael was unable to show outrageous
conduct, a required element of intentional infliction of emotional distress, or physical injury, a
required element of a claim for negligent infliction of emotional distress. Andrew also asserted
that Ishmael had suffered no damages because
he obtained a higher paying job a month after
Nordam terminated his employment.
¶7 Ishmael objected to summary judgment.2
Ishmael noted he had sought to strike ¶¶3,4,8,
and 19 of Andrew’s statement of undisputed
facts. Ishmael further asserted ¶¶2, 13, 14, and
15 were not relevant or material. Ishmael asserted he took issue with ¶1 because it stated he
worked until January 21, 2002.3 He took issue
with ¶11, contending Andrew had no legitimate
reason for having the opinion that Ishmael was
responsible for the contaminated drink.4 Lastly,
Ishmael asserted he also took issue with ¶¶9, 11,
17, and 18.
¶8 The trial court entered its Journal Entry of
Judgment April 20, 2005, in which it denied Ishmael’s motion to strike portions of Andrew’s
motion for summary judgment and granted
summary judgment in favor of Andrew. Summary judgment proceedings are governed by
Rule 13, Rules for District Courts, 12 O.S.2001,
Ch. 2, App.1. Summary judgment is appropriate
where the record establishes no substantial controversy of material fact and the prevailing party
is entitled to judgment as a matter of law. Brown
v. Alliance Real Estate Group, 1999 OK 7, 976 P.2d
1043, 1045. Summary judgment is not proper
where reasonable minds could draw different
inferences or conclusions from the undisputed
facts. Id. Further, we must review the evidence
in the light most favorable to the party opposing
summary judgment. Vance v. Fed. Natl. Mortg.
Assn., 1999 OK 73, 988 P.2d 1275.5
NEGLIGENT INVESTIGATION
¶9 The essential elements of a negligence
claim are: (1) a duty owed by defendant to protect plaintiff from injury, (2) a failure to properly
exercise or perform that duty, and (3) injuries to
plaintiff proximately caused by defendant’s failure to exercise his duty of care. McKellips v. St.
Francis Hospital Inc., 1987 OK 69, 741 P.2d. 467,
470. Duty is the threshold question in any negligence action. Haas v. Firestone Tire & Rubber Co.,
1976 OK 178, 563 P.2d 620, 625. Andrew asserted
he owed no duty to Ishmael because Andrew
represented Nordam and not Ishmael. Ishmael
responded that Andrew could be liable to a him
as a third party affected by the allegedly negli-
2139
gent investigation of the contamination because
the harm to Ishmael was foreseeable. For this
argument, Ishmael relied primarily on a case
involving an investigator hired by an insurance
company to investigate a claim made by an
insured. See Brown v. State Farm Fire & Cas. Co.,
2002 OK CIV APP 107, 58 P.3d 217.6 Whether or
not a duty exists depends on the relationship
between the parties. Duty of care is a question of
law. The court decides whether a defendant
stands in such a relationship to a plaintiff that
the defendant owes an obligation of reasonable
conduct to persons who are foreseeably endangered by his conduct with respect to risks which
make the conduct unreasonably dangerous.
Wofford v. Eastern State Hospital, 1990 OK 77, 795
P.2d 516.
¶10 Insurance cases, such as Brown, supra, are
not applicable to the determination of a duty in
this case because the duty an insurer, or its
agents, owes to its insureds who have paid for
the benefit of the insurance contract, is unlike
any duty an employer or its agent owes to an atwill employee in investigating workplace misconduct.7 Ishmael has failed to present authority
supporting a finding that Andrew owed him a
duty in this case.
¶11 We also note that the only evidence in the
record shows that Ishmael’s employment was
terminated due to a reduction in force. Although
Ishmael did not believe the evidence, he offered
no admissible, contrary evidence. Accordingly,
Ishmael has failed to present evidence showing
a conflict of fact on the issue of whether
Andrew’s investigation caused Ishmael to lose
his job.8 Finally, Ishmael has offered no indication of how Andrew should have conducted the
investigation differently. Andrew interviewed
each of the employees who worked in the area
of the contamination. All but two declined to
name a suspect. Two employees suggested Ishmael could have contaminated the drink
because he was known for committing pranks in
the workplace. Ishmael’s complaint is that the
investigation was negligent because Ishmael
continues to deny involvement in the contamination. Ishmael has failed to show an issue of
fact on the threshold issue of duty and we affirm
summary judgment in favor of Andrew on the
negligent investigation claim.
SLANDER
¶12 Ishmael asserted a claim for slander based
on Andrew accusing him of contaminating the
drink. Andrew contended he could not be liable
for slander because the accusation was not pub2140
lished and was privileged. Oklahoma statutes
define slander:
Slander is a false and unprivileged
publication, other than libel, which:
1. Charges any person with crime, or with
having been indicted, convicted or punished
for crime.
2. Imputes in him the present existence of an
infectious, contagious or loathsome disease.
3. Tends directly to injure him in respect to
his office, profession, trade or business,
either by imputing to him general disqualification in those respects which the office or
other occupation peculiarly requires, or by
imputing something with reference to his
office, profession, trade or business that has
a natural tendency to lessen its profit.
4. Imputes to him impotence or want of
chastity; or,
5. Which, by natural consequences, causes
actual damage.
12 O.S.2001 §1442. Publication is essential to a
claim for slander.
¶13 Ishmael asserted that his affidavit and his
corrections to his deposition testimony present
questions of fact whether Andrew published the
accusations. In his deposition, Ishmael testified
that when Andrew interviewed him during the
investigation, others in the room were Bobby
Ainsworth, the shop manager, and a court
reporter. Ishmael testified also that during the
interview, Andrew told him he thought he was a
liar and he thought Ishmael contaminated the
drink. During the deposition, counsel for
Andrew asked if Ishmael had any reason to
believe that Andrew had published the accusation to anyone outside of Nordam. Ishmael
answered simply “no.”9
¶14 Ishmael later filed corrections to his deposition testimony, including the following
replacement for that line:
No, well wait a minute there was a lady
there and I didn’t know who she worked for.
I didn’t know her but she was typing and
recording what was being said. Mr. Andrew
also made some of the same accusations
later in his office. This was in front of a private investigator. I imagine he made the
same comments to his office employees.
This corrected testimony does not establish that
anyone outside of Nordam or its agents heard
the accusations. Magnolia Petroleum Co. v. Davidson, 1944 OK 182, 148 P.2d 468, 471, 194 Okla.
Vol. 77 — No. 20 — 7/29/2006
115, established the law in Oklahoma that agents
and employees of a corporation are not third
parties to the corporation in their relations with
the corporation, and therefore communications
between those agents and employees are not
considered publications, because it is the corporation communicating with itself. At the time of
the investigation, Andrew was an attorney
working for Nordam. The rule that intra-corporate communications are not published for slander purposes applies to employees and agents,
which would include Andrew, a private investigator, a stenographic reporter, and Andrew’s
office employees, all agents hired by Nordam to
investigate the contamination of its employee’s
drink. Id.
¶15 In his affidavit, prepared after Andrew’s
motion for summary judgment, Ishmael asserted in clause 3 that on January 9, 2002, “a lady I
have now been able to identify as Lisa A. Steinmeyer, a person who was not an employee of
Nordam or Andrew” was present at the interview when Andrew accused Ishmael. The affidavit does not state what Steinmeyer’s role was
and it does not indicate Steinmeyer was there in
addition to the others he had previously stated
were there.10 Clause 4 of the affidavit states,
apparently referring to another date, “(i)n his
office, Andrew again said I committed the crime,
this time in front of a person I have not been able
to identify but who was identified to me as a
person not employee (sic) of Nordam or
Andrew.”
davit that there were two people present at that
interview who were not agents or employees of
Nordam and/or Andrew is not sufficient to create a fact issue on the essential element of publication for a slander claim.
¶18 The undisputed facts here show that
Andrew was an agent or employee of Nordam
who communicated the accusation against Ishmael only to other agents and employees.
Absent the essential element of publication,
there can be no cause of action for slander,
regardless of the ultimate truth of the communication. Magnolia Petroleum, supra; Starr v. Pearle
Vision, Inc., 54 F.3d 1548 (10 thCir.1995);
Thornton, supra, 36 P.3d at ¶11. We therefore
affirm summary judgment on the slander and
defamation claim.
INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
¶16 The trial court may disregard an affidavit
which purports to create an issue of fact by
directly contradicting prior testimony. Savage v.
Burton, 2005 OK CIV APP 106, 125 P.3d 1249. In
determining whether an affidavit may be disregarded because it attempts to create a sham
issue of fact, we consider whether the party was
cross-examined during his earlier testimony,
whether he had access to the evidence at the
time of his earlier testimony or whether the affidavit was based on newly discovered evidence,
and whether the earlier testimony reflects confusion which the affidavit attempts to explain.
Id., citing Franks v. Nimmo, 796 F.2d 1230
(10thCir.1986).
¶19 In deciding claims for intentional infliction of emotional distress, Oklahoma follows the
Restatement (Second) of Torts §46: “One who by
extreme or outrageous conduct intentionally or
recklessly causes severe emotional distress to
another is subject to liability for such emotional
distress, and if bodily harm to the other results
from it, for such bodily harm.” To establish a
prima facie case of intentional infliction of emotional distress, a plaintiff must demonstrate: (1)
that the tortfeasor acted intentionally or recklessly; (2) that the tortfeasor’s conduct was
extreme and outrageous; (3) that plaintiff actually experienced emotional distress; and (4) that
the emotional distress was severe. Breeden v.
League Services Corp., 1978 OK 27, 575 P.2d 1374,
1376-78. As a threshold matter, courts should
determine whether the conduct at issue is sufficient under the extreme and outrageous standard as a matter of law. Id. That is, they should
determine whether a reasonable person could
find that the conduct is so offensive “as to go
beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in
a civilized community.” Id. The circumstances
surrounding the conduct affect whether the conduct is reasonable. Eddy v. Brown, 1986 OK 3, 715
P.2d 74.
¶17 In this case, Ishmael’s deposition was
taken August 3, 2004. Counsel for Andrew questioned him. The information he posited in his
affidavit and correction to deposition testimony
was available to him at the time of the deposition. Ishmael obviously was at the interview
with Andrew about which he testified. A portion
of the transcript of that interview is in the
record. Ishmael’s later declaration in his affi-
¶20 At issue here are Andrew’s declarations to
Ishmael, in the course of an investigation, that
Andrew believed Ishmael was the perpetrator
and that Andrew believed Ishmael was a liar. In
the context of a workplace investigation into the
dangerous contamination of an employee’s
drink, this conduct is not outrageous, atrocious,
or beyond all possible bounds of decency as a
matter of law. This court, as well as the the Okla-
Vol. 77 — No. 20 — 7/29/2006
2141
homa Supreme Court and the Tenth Circuit
Court of Appeals, applying Oklahoma law, have
affirmed summary judgment on facts nearly
identical to those in this case. See Eddy, supra;
Haynes v. South Community Hosp. Management,
Inc., 1990 OK CIV APP 40,793 P.2d 303, 306-307;
Merrick, supra, 911 F.2d 426; Starr v. Pearle Vision,
Inc, supra, 54 F.3d 1548.11 Having found
Andrew’s conduct was not outrageous as a matter of law under the circumstances here, we
affirm summary judgment on Ishmael’s claim
for intentional infliction of emotional distress.
AFFIRMED.
MITCHELL, P.J., concurs, and ADAMS, J.,
concurs in result.
1. Andrew listed 19 undisputed facts: 1) Ishmael was an employee
of Nordam Group, Inc. from February 22, 1999 to January 21, 2002; 2)
in 2001, Ishmael was 23 years old; 3) while employed by Nordam, Ishmael frequently engaged in horseplay and pranks with other employees; 4) Nordam has a policy against horseplay; 5) on December 6, 2001,
a Nordam employee found that her soft drink had been contaminated;
6) the soft drink was contaminated with acetone; 7) Andrew investigated the incident on behalf of his client, Nordam; 8) as part of his
investigation, Andrew took statements from various employees, some
of whom thought Ishmael was responsible for the contamination; 9)
Nordam terminated Ishmael’s employment in January 2002 because of
a reduction in force; 10) Ishmael agreed that Nordam told him his
position was eliminated, but Ishmael did not believe that; 11) Andrew
believed Ishmael was responsible for the contamination of the drink
and expressed that opinion to Ishmael; 12) Ishmael contended he was
terminated due to Andrew’s negligent investigation, slander, and
defamation; 13) at the time he was terminated, Ishmael was paid
$11.80 per hour; 14) in February 2002, Ishmael began working for
another company at $13.00 per hour and by the time of the summary
judgment motion he was making $14.50 per hour; 15) Ishmael was
hired by the new company as soon as he applied; 16) Ishmael was not
working for one month after Nordam terminated his employment; 17)
Ishmael testified he had no reason to believe Andrew or anyone at
Nordam accused him of the contamination to anyone outside the company; 18) each statement Andrew made to Ishmael or any other person employed by Nordam was made as an attorney and agent of
Andrew’s client, Nordam; and 19) Andrew believed he owed a duty to
Nordam with respect to his investigation to make the statements he
made to Ishmael.
2. Ishmael first responded with a motion to strike portions of
Andrew’s motion for summary judgment. Ishmael complained that
the facts that he engaged in horseplay and that Nordam had a policy
against horseplay were not relevant because, according to Ishmael he
was not fired for engaging in horseplay but for committing a felony by
contaminating another person’s drink. Ishmael also sought to strike
Andrew’s Exhibit 4, which was a Nordam form for changing an
employee’s record. It indicated Ishmael was subject to a “RIF-Reduction in Finish Out Not Eligible for Re-hire.” Ishmael argued the form
had not been identified or authenticated and was inadmissible
hearsay. Ishmael also sought to strike portions of his deposition testimony because he had later clarified that testimony. Ishmael also
sought to strike paragraph 7 of Andrew’s affidavit, as well as
Andrew’s 19th undisputed fact, both stating that Andrew believed he
owed a duty to Nordam to investigate the contamination incident and
make the statements to Ishmael, because, according to Ishmael, that
information was not material or relevant. Ishmael next asked the court
to strike paragraph 5 of Andrew’s affidavit which states that Andrew
took statements from Ishmael’s fellow employees and some of them
stated Ishmael was responsible. Ishmael contended these statements
were inadmissible hearsay. Lastly, Ishmael challenged Andrew’s
attachment of Ishmael’s Petition as an exhibit to his summary judgment motion because Ishmael had since filed an Amended Petition.
3. The termination sheet, attached as Exhibit 4 to Andrew’s Motion
for Summary Judgment, is dated January 21, 2002.
4. The evidence in the record shows that Andrew interviewed several employees regarding the incident. Only two offered an idea of
who contaminated the drink, and both named Ishmael. In his testimo-
2142
ny, Ishmael agreed he had committed pranks at work, including gluing people to the floor, gluing tools, and squirting lotion on co-workers.
5. In his petition in error, Ishmael argued that granting summary
judgment to Andrew required the trial court to find: 1) it was true that
Ishmael contaminated the drink; 2) Andrew was not negligent in conducting the investigation of the contamination; 3) “that somehow,
what otherwise would be slanderous per se, i.e., the accusation of a
felonious criminal act, was privileged on the part of Andrew”; 4)
Andrew “was not guilty of” intentionally inflicting emotional distress
on Ishmael; 5) Ishmael suffered no damages as a result of Andrew’s
acts; and 6) Ishmael had no cause of action for slander, intentional
infliction of emotional distress, or negligent investigation because he
was an employee at will.
6. In Brown, the insurer hired someone to investigate a claimed
loss. The adjuster’s negligent investigation resulted in the claim being
wrongly denied. The Court of Civil Appeals noted it addressed the
unique question whether an independent investigator or adjuster
retained by an insurance company owes a duty to an insured. The
court held that independent insurance investigators owe a duty to the
insured to conduct a fair and reasonable investigation of an insurance
claim. 2002 OK CIV APP 107at ¶19.
7. Unlike insurance contracts, there is no implied covenant of good
faith and fair dealing in an at-will employment contract. Merrick v.
Northern Natural Gas Co., 911 F.2d 426, 432 (10th Cir.1990).
8. It appears that the substance of Ishmael’s claimed damages
depends on his termination being the result of the investigation, rather
than a reduction in force. The failure to produce evidence of the former is fatal at least as to the negligence and intentional inflection of
emotional distress claims.
9. In his deposition, Ishmael testified he had told two of his new
co-workers that he had been accused of contaminating the drink.
10. During his deposition testimony, Ishmael explained that he
met with Andrew only one time, January 9, 2002, and he agreed with
Andrew’s notes from that meeting which stated: “(p)resent were
[Andrew, Ishmael], Lisa Steinmeyer, a court reporter, Joseph Efird, and
Allen Pennington of human resources.”
11. In Starr v. Pearle Vision, the court noted that the defendant’s
“alleged pointed and stentorian questions, posed as they were in the
context of an employer’s investigation of embezzlement, do not cross
the bounds between what is merely rude and objectionable and what
is actionable.” 54 F.3d at 1559.
2006 OK CIV APP 83
ROBERT DEAN McCUTCHEON,
Plaintiff/Appellant, v. BRITTON, RAMSEY
AND GRAY, P.C., f/k/a BRITTON, GRAY,
RAMSEY AND McCUTCHEON, P.C.,
Defendant/Appellee.
No. 102,168. June 9, 2006
HONORABLE CAROLYN R. RICKS, JUDGE
AFFIRMED
Jerome S. Sepkowitz, DERRYBERRY, QUIGLEY,
SOLOMON & NAIFEH, Oklahoma City, Oklahoma, for Plaintiff/Appellant,
Michael D. Gray, BRITTON, RAMSEY AND
GRAY, P.C., Oklahoma City, Oklahoma, for
Defendant/Appellee.
OPINION BY BAY MITCHELL, PRESIDING
JUDGE:
¶1 Plaintiff Robert Dean McCutcheon appeals
from an order dismissing without prejudice his
breach of contract action against Defendants
Vol. 77 — No. 20 — 7/29/2006
Britton, Ramsey and Gray, P.C. (BR&G) because
there was another action pending in federal
court. McCutcheon was a former shareholder
and employee of the professional corporation
Britton, Gray, Ramsey and McCutcheon, P.C.
The members all signed a Stock Transfer Agreement, which required any member who terminated his employment to sell his stock to the corporation as specified in the Agreement.
McCutcheon voluntarily terminated his
employment in November or December of 2003
and endorsed his stock over to BR&G. BR&G
then deducted federal and state taxes, FICA and
Medicare as if the payment was ordinary
income and paid McCutcheon approximately
$106,500.00. McCutcheon demanded that BR&G
pay him the amount of the taxes withheld,
approximately $47,800.00. McCutcheon asserted
the payment was for his stock redemption, for
which he would only have to pay capital gains
taxes.
¶2 BR&G filed a Complaint for declaratory
judgment in the Western District of Oklahoma
on May 10, 2004. BR&G asked the federal court
to declare that the payment was ordinary
income and not capital gains. BR&G also sought
attorney fees and costs, which are allowed to the
prevailing party under the Agreement.
McCutcheon responded with a motion to dismiss for lack of jurisdiction. On December 13,
2004, the federal court dismissed the declaratory
judgment action for lack of subject matter jurisdiction. The court held the federal tax exception
to the Declaratory Judgment Act, 28 U.S.C.
§2201(a), applied because determining whether
McCutcheon’s payment was subject to federal
withholding requirements would directly
impact the amount of tax the Government could
collect. BR&G timely filed a notice of appeal on
January 11, 2005.1
¶3 Before BR&G filed the federal appeal and
on the same day the federal action was dismissed, McCutcheon filed the current state
action against BR&G for breach of contract.
McCutcheon alleged BR&G breached the Stock
Transfer Agreement by failing to pay him the
remaining amount due of approximately
$47,800.00, and failing to account for that money.
He asked for damages, prejudgment and postjudgment interest, costs and attorney fees.
BR&G filed a Motion to Dismiss based on 12
O.S. Supp. 2004 §2012(B)(8), on the ground that
there was another action pending in federal
court. As evidence that the federal action was
between the same parties and for the same
claim, BR&G attached a copy of the Complaint,
McCutcheon’s Motion to Dismiss, the Order disVol. 77 — No. 20 — 7/29/2006
missing for lack of subject matter jurisdiction,
and BR&G’s Notice of Appeal. After reviewing
the pleadings, the trial court dismissed this state
action without prejudice. McCutcheon appeals
from this order.2
¶4 A defendant may by motion interpose the
pendency of other litigation as a bar to going
forward with the action being prosecuted. State
ex rel. Tal v. Norick, 1999 OK 85, ¶6, 991 P.2d 999,
1001; 12 O.S. Supp. 2004 §2012(B)(8) (“Another
action pending between the same parties for the
same claim”). The common law rule of
abatement provides background for this rule as
follows:
[W]here a plea of another action pending is
interposed to work an abatement and a
dismissal of a suit, the action pleaded shall
be considered as pending, if it is between
the same parties, and involves the same
cause or causes of action, and is in a court
which has jurisdiction of that class or character of action, and this is true, until the
right of the first court invoked to hear and
determine the particular cause has been
finally adjudged.
Myers v. Garland, 1927 OK 20, ¶14, 252 P. 1090,
1092 (emphasis added). The purpose of the rule
is to prevent a conflict of jurisdiction between
courts, as well as expensive and vexatious
litigation. Id.
¶5 Here, the parties to both causes of action
are the same, McCutcheon and BR&G, even
though their positions were reversed in the federal action. In addition, the causes of action are
essentially the same, because the same amount
of money withheld by BR&G to pay the taxes is
at issue in both cases. In the federal case, BR&G
wants a declaration that they properly withheld
the money for taxes. In the state action,
McCutcheon wants the same money paid to
him, alleging the same act of withholding by
BR&G was a breach of contract. Further, the
underlying facts and the transaction at issue are
the same. The termination, the corporation’s
policies, the payment, and the interpretation of
the Agreement will be common to both cases.
Thus, the cases have the same parties and the
same cause of action.
¶6 As noted in ¶3 above, McCutcheon filed
the instant state action subsequent to the dismissal of the federal action, but before the notice
of appeal was filed. Thus, in McCutcheon’s
view, the federal case was not pending when the
state case was filed. We disagree because a case
is pending until it has been “finally adjudged,”
2143
which would include a timely appeal. Myers,
¶14, 252 P. at 1092. Myers is factually similar to
this case. The plaintiff first filed in Seminole
County, but the case was dismissed on jurisdictional grounds. Id., ¶2, 252 P. at 1090. The plaintiff then refiled the same case the next day in
Tulsa County, and also appealed the first case.
Id. The Court noted that if the order of dismissal
was overturned on appeal, the Seminole County
Court would regain full and exclusive jurisdiction. Id., ¶9, 252 P. at 1091. Allowing the same
case to proceed in Tulsa County while the Seminole County case was on appeal would create an
impermissible conflict in the jurisdiction
between two courts of co-ordinate powers on
the same subject matter. Id. Thus, abatement of
the second case was proper because the first case
had not been “finally adjudged” until the first
case was final on appeal. Id., ¶14, 252 P. at 1091.
Similarly here, the declaratory judgment was
not finally adjudged, and if the Tenth Circuit
reverses the dismissal, the federal court will
have full jurisdiction over the same claim at
issue in this case.
¶7 Several other courts have held that a federal court retains jurisdiction after a dismissal on
jurisdictional grounds until the federal appeal is
final, even if a state action is filed between the
dismissal and the notice of federal appeal. E.g.,
Darin v. Haven, 437 N.W.2d 349 (Mich. App.
1989) (pendency of action in federal appellate
court warranted dismissal of state action based
solely on state claims); Beetham v. Georgia-Pacific
Corp., 743 P.2d 755, 756 (Ore. App. 1987)
(although jurisdiction passed from federal district court to appellate court, case was still pending in federal court because the merits of
whether plaintiffs had standing to bring federal
claims remained in dispute at the appellate
level). We agree with the reasoning of these
cases that filing a state action after dismissal but
before the time for appeal has run does not give
the state action priority over the pending federal action. This would lead to duplicate lawsuits
and conflicts in jurisdiction. There is no greater
reason to allow duplicate lawsuits when one of
the cases is on appeal than when the cases are
both still in the trial courts. See Beetham, 743 P.2d
at 756. If an appeal is timely filed, that case is still
pending until the action is finally adjudged for
the purposes of §2012(B)(8). The trial court properly dismissed pursuant to §2012(B)(8).
¶8 AFFIRMED.
BUETTNER, C.J., and ADAMS, J., concur.
1. According to our appellate record, this appeal is still pending in
the Tenth Circuit Court of Appeals.
2144
2. Appellate courts review issues of law de novo, giving no deference to the ruling of the trial court. Kluver v. Weatherford Hosp. Authority, 1993 OK 85, ¶14, 859 P.2d 1081, 1084.
2006 OK CIV APP 84
BLUE BELL, INC., and LIBERTY MUTUAL
INSURANCE CO., Petitioners, v. MAGGIE
M. SPEAKMAN and THE WORKERS’
COMPENSATION COURT, Respondents.
No. 102,197. June 8, 2006
A THREE-JUDGE PANEL OF THE WORKERS’
COMPENSATION COURT
VACATED IN PART, SUSTAINED IN PART
AS MODIFIED
Daniel J. Talbot, LAW OFFICE OF AIMEE
TREECE, Oklahoma City, Oklahoma, for Petitioners,
Craig Dawkins, Mark E. Litton, Oklahoma City,
Oklahoma, for Respondent.
OPINION BY ROBERT DICK BELL, PRESIDING JUDGE:
¶1 Petitioners, Blue Bell, Inc. (Employer) and
Liberty Mutual Insurance Co., seek review of an
order of a three-judge panel of the Workers’
Compensation Court (Panel). The Panel
affirmed a trial court order finding Respondent
Maggie M. Speakman (Claimant) sustained a
change of condition for the worse to her right
arm and awarding medical treatment. For the
reasons set forth below, we sustain in part and
vacate in part the Panel’s order.
¶2 In March of 1987, Claimant filed a Form 3
alleging cumulative trauma injuries to both
hands and wrists, right arm, and right hand and
thumb. In December, 1988, Claimant filed an
amended Form 3 alleging injuries to both hands,
both arms, her shoulders and her neck. Notably,
the amended Form 3 did not mention either of
Claimant’s thumbs. By order dated June 19,
1990, the Workers’ Compensation Court held
Claimant suffered job-related cumulative trauma injuries to “the RIGHT AND LEFT HANDS,
RIGHT AND LEFT ARMS (with radicular
symptoms into both shoulders and neck) . . . .”
The date of her last hazardous exposure was
found to be May 8, 1985. Claimant was awarded
both Temporary Total Disability (TTD) and Permanent Total Disability (PTD) benefits.
¶3 In 2004, Claimant initiated the present proceedings by seeking an order finding she had
sustained a change of condition for the worse to
both her hands and left arm. Employer admitted
a change of condition to the right wrist and
Vol. 77 — No. 20 — 7/29/2006
agreed to authorize surgery thereon. Employer
also agreed to a court appointed independent
medical examination to determine whether
Claimant had sustained a change of condition
for the worse to her left arm. However, Employer denied Claimant’s requests for a finding of
change of condition for the worse and medical
treatment to both hands to the extent Claimant
was seeking treatment for her thumbs. Specifically, Employer argued because Claimant never
sought a finding of injuries to or PPD rating for
her thumbs in the original proceeding, the
statute of limitations and the theory of waiver
operated to foreclose any claim for injuries to
Claimant’s thumbs.
¶4 The trial court denied Employer’s statute
of limitations and waiver defenses and awarded
Claimant medical treatment, including surgery,
to her right arm. The court specifically held the
June 19, 1990, Order’s “finding of injury to
claimant’s RIGHT HAND AND LEFT HAND
includes all body parts below the ELBOW and
includes claimant’s FOREARMS, WRISTS, FINGERS and THUMBS.” The trial court specified
Employer’s “defense denying that the THUMBS
were not adjudicated as part(s) of the HAND(S)
by the Court in its June 19, 1990, Order is
DENIED.” The trial court reserved for future
determination whether Claimant suffered a
change of condition for the worse to her left arm.
Employer appealed to the three-judge panel,
which affirmed the trial court’s ruling by a twoto-one vote.
¶5 Employer raises two propositions of error
on review. First, Employer urges the Panel erred
in awarding medical treatment to Claimant’s
right arm. Both parties argued before the Panel
and now agree on appeal that the order should
have authorized treatment to Claimant’s right
wrist, rather than to her right arm. It appears the
Panel committed something akin to a scrivener’s error when it authorized treatment to
Claimant’s right “arm.” See Townsend v. Dollar
Gen. Store, 1993 OK CIV APP 164, ¶28, 864 P.2d
1303, 1308. Therefore, the Panel’s order is hereby
modified to correct the error to accurately reflect
treatment was authorized for Claimant’s right
“wrist.” Id.
¶6 Employer also argues the Panel erred in
ruling Claimant’s thumbs were included in the
1990 Order. Workers’ compensation laws are
purely creatures of statute. Strong v. Laubach,
2004 OK 21, ¶10, 89 P.3d 1066, 1070. The Workers’ Compensation Court “can act only by
authority of statute.” Special Indem. Fund v.
Davidson, 1945 OK 287, ¶6, 162 P.2d 1016, 1018.
“Thus, any allowance of benefits or the restricVol. 77 — No. 20 — 7/29/2006
tion upon an award must be given, if at all, by
statute.” Strong at ¶10, 89 P.3d at 1070. Furthermore:
A statute-of-limitation issue ordinarily
presents a mixed question of fact and law.
Even though the trial court’s factual determinations relative to the statutory time bar
[if supported by any competent evidence]
will not be independently reviewed, application of the 85 O.S.1991 §43 time bar to
render a claim not remediable is a conclusion of law and hence is subject to de novo
review by this Court.
Sneed v. McDonnell Douglas, 1999 OK 84, ¶9, 991
P.2d 1001, 1004 (footnotes omitted, bracketed
language in original).
¶7 Employer argues Claimant had two years
from the date of her last hazardous exposure to
file a workers’ compensation claim for any
injuries to her thumbs. 85 O.S. 2001 §43. At both
the time of Claimant’s last hazardous exposure
to trauma and when she brought the present
action, thumbs were scheduled members — separate from hands — under the Workers’ Compensation Act. 85 O.S. §22(3)(a) (1981 & 2001).
Because Claimant failed to file a claim for any
injury to her thumbs for nearly twenty years
after her last hazardous exposure, Employer
contends §43 bars any recovery.
¶8 Claimant responds that a finding of an
injury to the “hand” covers any and all parts of
the arm below the elbow. Thus, Claimant urges,
her right thumb was included in the court’s 1990
finding of an injury to the right hand. As support for her argument, Claimant cites Wilkerson
Chevrolet, Inc. v. Mackey, 1961 OK 267, 366 P.2d
422. In Wilkerson, the claimant’s wrist and forearm were injured when an automobile hood fell
on it. Medical evidence revealed the claimant
fractured his wrist and the trial court awarded
PPD benefits for disability to the hand. The
employer argued any disability was “due to the
elbow” and not the accidental injury. (Although
unclear in the opinion, it appears the claimant
may have suffered an elbow injury in a separate
job-related accident then pending in another
workers’ compensation proceeding). The Court
held “[t]he evidence is undisputed that claimant
sustained an accidental injury to the wrist and
forearm. Any injury below the elbow may be
compensable as a disability to the hand.” Id. at
¶5, 366 P.2d at 424. The Court did not cite any
authority for the latter proposition.
¶9 The Wilkerson opinion has been cited twice
in published opinions. One opinion is clearly
2145
inapplicable here.1 In the other case, City of Okla.
City v. Pool, 1978 OK 96, 580 P.2d 989, the
claimant also suffered a fractured wrist and was
awarded benefits for disability to the hand. On
appeal, the employer argued it should not have
been assessed certain deposition costs because
the doctor’s report was unclear whether disability was to the arm or the hand and because the
wrist is not a scheduled member under §22. In
affirming the award, the Court referred to language in §22(3) regarding amputations. That
section provides in relevant part:
Amputation between the elbow and the
wrist shall be considered as the equivalent
of the loss of a hand . . . . Amputation at or
above the elbow shall be considered as the
loss of an arm.
The Court then used “see also” language in citing Wilkerson. Pool at ¶9, 580 P.2d at 991. Other
than the “amputation” provisions, no other
statutory language in the Act defines a hand as
everything below the elbow. Hands and arms
are separately scheduled members under the
Act. 85 O.S. 2001 §22(3)(a).
they got progressively worse over the years. Id.
at ¶2, 109 P.2d at 819.
¶12 The Court held the original 1922 notice
and claim, which referred only to the claimant’s
injured wrist, was insufficient to confer jurisdiction in 1938 for an award for injuries to the
claimant’s head and spine:
[W]here a claimant, at the time an award is
made for accidental injuries, knows of
injuries other than those for which he is
being compensated, and exercises his judgment as to the seriousness of such other
injuries and neglects to give notice to his
employer within one year after the original
accident, such claimant should not thereafter be permitted to recover for such undisclosed injuries.
In the instant case the claimant made no
mention of the injury to his back or head,
except to the physician who attended him.
This was not notice to respondent.
Finance Oil Co., 1941 OK 33 at ¶¶4-5, 109 P.2d at
819.
¶10 Wilkerson and Pool are distinguishable
from the facts of the present case. Both were
appeals from an original order awarding benefits for an injury to the hand where the claimant
suffered a fractured wrist. Unlike the present
case, neither opinion involved a motion to
reopen a case for a change of condition for the
worse on a scheduled member not specified in
the trial court’s original order awarding workers’ compensation benefits. It appears Wilkerson
and Pool were based upon the amputation language in the Act. Because an amputation of part
of an arm between the wrist and the elbow is
considered the loss of a hand, it logically follows
that a mere injury to the same part of the arm
should only be compensated as an injury to the
hand. On this basis, we believe the Wilkerson
language is inapplicable to the instant case.
¶13 Also instructive is Brown v. Oxy USA, Inc.,
1993 OK CIV APP 63, 854 P.2d 378. There, the
claimant’s Form 3 alleged injury to her right arm
and right hand. The trial court awarded PPD
benefits for injury to the right hand. Two years
later, the claimant filed a motion to reopen for a
change of condition alleging injury to her right
shoulder. This Court held the claimant could not
reopen for a change of condition to the shoulder
when the prior adjudication was for injury to the
arm and hand:
¶11 More analogous with the present case is
Finance Oil Co. v. James, 1941 OK 33, 109 P.2d 818.
There, the claimant was injured in a work-related fall in 1922. He claimed and was awarded
workers’ compensation benefits for an injury to
his wrist. In 1938, the claimant moved to reopen
his case, alleging injuries to his head and spine
arising from the 1922 fall. The evidence revealed
the claimant knew of his head and back injuries
at the time of his original proceeding, but did
not mention the injuries to anyone except the
doctor who treated his wrist. The claimant further conceded his back and neck continued to
bother him after he returned to work, and that
Id. at ¶14, 854 P.2d at 380, citing Friar v. Sirloin
Stockade, Inc., 1981 OK 117, 635 P.2d 597. Accord
University of Okla. v. Steinberg, 2001 OK CIV APP
91, 29 P.3d 618 (res judicata barred reopening case
for bladder and bowel problems where claimant
was aware of such problems at time of trial,
Form 3 did not allege injury to such body parts
and order adjudicated PPD for injury only to the
back and neck). See also Sneed v. McDonnell Douglas, 1999 OK 84, 991 P.2d 1001 (statute of limitations barred shoulder injury claim where
claimant knew of shoulder pain when he filed
his Form 3 for arm and hand injuries but did not
list shoulders); Smith v. Matrix Serv. Inc., 2001 OK
2146
When a matter is set for hearing on permanent disability, the claimant must indicate
what injuries are to be heard and which
specifically reserved. If no injuries are
reserved, all injuries are deemed at issue
when the case is heard.
Vol. 77 — No. 20 — 7/29/2006
CIV APP 75, 25 P.3d 298 (statute of limitations
barred recovery for neck injury where claimant
was aware of injury but failed to specify same on
Form 3 which listed other specific body parts).
Michael S. Ryan, Brandon P. Wilson,
EDMONDS, COLE, HARGRAVE, GIVENS,
RYAN & WOODSON, Oklahoma City, Oklahoma, for Defendant/Appellee.
¶14 In the case at bar, Claimant’s amended
Form 3 gave no notice of any injuries to her
thumbs. Claimant admitted she had problems
with her thumbs in 1985 and that they have
gradually gotten worse over time. However,
Claimant did not seek a finding of injury to
either thumb at trial. In fact, the 40 page trial
transcript contains no mention of Claimant’s
thumbs. The medical reports introduced at trial
noted Claimant’s prior right thumb surgery, but
did not include a specific finding of injury or
give a PPD rating with respect to either of
Claimant’s thumbs. Finally, the trial court’s June
19, 1990, order did not mention Claimant’s
thumbs.
OPINION BY DOUG GABBARD II, PRESIDING JUDGE:
¶15 On the basis of the foregoing, we conclude
the Panel erred in holding Claimant’s thumbs
were included in the original order awarding
benefits for injuries to Claimant’s hands.
Thumbs and hands are separately compensable
members under the Act and case law dictates
scheduled members are deemed at issue in the
original proceeding unless specifically reserved.
Claimant did not mention any injury to her
thumbs nor did she reserve such issue in the
original proceeding. Accordingly, the statute of
limitations has run on any claim Claimant had
for injuries to her thumbs.
¶16 VACATED IN PART, SUSTAINED IN
PART AS MODIFIED.
HANSEN, J., and JOPLIN, J., concur.
1. Seminole Co. v. Yancey, 1973 OK 2, 511 P.2d 1093.
2006 OK CIV APP 85
WANDA BAILEY and CARMA FOSTER,
Plaintiffs/Appellants, v. FARMERS
INSURANCE COMPANY, INC.,
Defendant/Appellee.
No. 102,865. June 6, 2006
HONORABLE VICKI ROBERTSON, TRIAL
JUDGE
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR FURTHER
PROCEEDINGS
David M. Shear, Oklahoma City, Oklahoma, for
Plaintiffs/Appellants,
Vol. 77 — No. 20 — 7/29/2006
¶1 In this breach of contract and “bad faith”
action, Plaintiffs, Wanda Bailey and Carma Foster, appeal the trial court’s grant of summary
judgment in favor of Defendant, Farmers Insurance Company, Inc. (Farmers). Based upon the
facts and the law, we affirm in part, reverse in
part, and remand for further proceedings.
BACKGROUND
¶2 Plaintiffs’ horse barn was destroyed by fire
on December 3, 2003. Plaintiffs had purchased
from Farmers a homeowner’s insurance policy
which covered separate structures, such as the
barn and its contents, as well as other expenses
incurred by Plaintiffs as the result of a fire. Farmers refused coverage on the grounds that the
barn and contents were used in a business and,
therefore, were excluded from coverage by the
policy.
¶3 Plaintiffs filed suit on December 8, 2004,
alleging that Farmers’ actions constituted breach
of contract and breach of the duty of good faith
and fair dealing. Farmers filed an answer generally denying Plaintiffs’ allegations and setting
forth affirmative defenses.
¶4 In October 2005, Farmers filed separate
motions for summary judgment on Plaintiffs’
bad faith theory of recovery and breach of contract theory. Farmers’ evidentiary material indicated that Plaintiffs used the barn to house horses, tack, washing and drying machines for blankets, veterinary supplies, and many other items
related to the care and training of the horses; that
Plaintiffs owned approximately 15 horses; that in
a taped interview immediately after the fire,
Plaintiff Bailey indicated that Plaintiffs used the
barn for their “horse business”; that Plaintiffs
claimed $52,533 in business deductions on their
2000 federal income tax return (Schedule F), listed their “principal crop or activity” as “Horses/Breeding/Boarding,” and listed expenses for
feed, veterinary, breeding, medicine, AQHA registration fees, farrier fees, and tags; that Plaintiffs
had similar expenses for 2000, 2001, 2002 and
2003; that in 2003 Plaintiffs applied for and
received a State Agricultural Exemption Permit,
and that such permits are only issued to certain
“for profit” farming or ranching businesses
under 68 O.S.2001 § 1358; that Plaintiff had registered three colts to increase their sale value,
2147
and had attempted to sell two horses during the
months immediately preceding the fire; and that
Plaintiffs had actually sold one of the horses
(Bottoms Up Scarlet) after the fire.
¶5 Plaintiffs filed briefs in opposition. Plaintiffs’ evidentiary material indicated that they
raised and trained horses as a “hobby,” and were
not known for “selling horses,” but for “collecting them”; that Plaintiffs sold no horse during
the five years before the 2003 fire and had only
sold the horse in 2004 to raise money for living
expenses; that Plaintiffs did not train horses for
third parties; that Plaintiffs did not board horses
for profit; that Plaintiffs had not bred horses
since 2000; that Plaintiffs were not motivated by
profit, but only made money “by chance”; that
Plaintiffs did not hold themselves out as a business or advertise as same; that Plaintiffs did not
maintain separate books or bank accounts with
regard to the horse activities; and that Plaintiffs
had virtually no income from horse activities but
supported themselves with retirement and
Social Security income. Plaintiffs also submitted
evidentiary material that Farmers paid a loss on
the barn when it collapsed due to snow prior to
2000 and that Plaintiffs’ use had not changed
since that time.
¶6 On November 16 and December 1, 2005, the
trial court granted summary judgment to Farmers on Plaintiffs’ claim. Plaintiffs appeal.
STANDARD OF REVIEW
¶7 Summary judgment is a device used to
reach a final judgment where there is no dispute
as to any material fact, and where one party is
entitled to judgment as a matter of law. Indiana
Nat’l Bank v. Dep’t of Human Serv., 1993 OK 101,
857 P.2d 53. We review a grant of summary judgment de novo, meaning we have independent and
non-deferential authority to determine whether
the trial court erred in its application of the law.
Young v. Macy, 2001 OK 4, 21 P.3d 44.
ANALYSIS
¶8 In determining whether the trial court
properly granted summary judgment on the
contract claim, the primary issue is whether
there was a legitimate dispute that the barn and
contents were used for business purposes. Section I, Coverage B of the homeowner’s insurance
policy provided:
We do not cover separate structures
which are intended for use in business or
which are actually used in whole or in part
for business purposes.
2148
The policy also defined “business” as “any full
or part-time trade, profession or occupation”
and “business property” as “property pertaining
to or intended for use in business.” Furthermore,
it covered personal property owned by an
insured, on and off the “residence premises.”
¶9 In construing insurance contracts, the contract’s terms and words, if unambiguous, must
be accepted in their plain, ordinary, and popular
sense. Littlefield v. State Farm Fire & Cas. Co., 1993
OK 102, 857 P.2d 65; Penley v. Gulf Ins.Co., 1966
OK 84, 414 P.2d 305. Parties to insurance contracts are at liberty to contract for insurance to
cover such risks as they see fit and are bound by
the terms thereof, and courts will not rewrite the
terms. Thus, in construing the language of an
insurance policy, we look to the natural and reasonable meaning, fairly construing it to effectuate its purpose, and viewing it “in the light of
common sense so as not to bring about an absurd
result.” Am. Iron & Mach. Works Co. v. Ins. Co. of
No. Am., 1962 OK 197, 375 P.2d 873 (syllabus 3).
¶10 In determining a contract’s natural and
reasonable meaning we note that Black’s Law Dictionary (5th ed. 1979), defines “business” as
“[e]mployment, occupation, profession, or commercial activity engaged in for gain or livelihood. Activity or enterprise for gain, benefit,
advantage or livelihood . . . That which habitually busies or occupies or engages the time, attention, labor, and effort of persons as a principal
serious concern or interest or for livelihood or
profit.” The primary elements of this definition
appear to be continuity and profit motive. In
other words, businesses usually have a degree of
continuity and have an ultimate goal of profit.
¶11 This is essentially the same conclusion
reached by the Oklahoma Supreme Court in
Wiley v. Travelers Insurance Co., 1974 OK 147, 534
P.2d 1293, cited by both parties as authority. In
that case, as here, the plaintiffs alleged that they
were engaged in a hobby, rather than a commercial business activity. The Supreme Court held
that a hobby can be a business pursuit when
there is a profit motive attached to the activity:
An effort is made to distinguish between
a hobby and a business pursuit. A business
pursuit is denoted as “what one does for a
living.” A hobby is called “what one does for
pleasure.” We believe this distinction is artificial. One’s livelihood may be, and hopefully is, one’s greatest pleasure.
Can a hobby be a business pursuit? We
believe the addition of a profit motive to an
activity makes it a business pursuit. Insurer
Vol. 77 — No. 20 — 7/29/2006
in its brief says the “addition of profit motive
is all that is necessary to make an activity
both a hobby and a business pursuit.” We
agree.
Id. at ¶¶ 9-10, 534 P.2d at 1295.
The Court also referred to Kelley v. United States,
202 F.2d 838 (10th Cir. 1953), and ultimately held
that “[p]rofit motive, not actual profit, makes a
pursuit a business pursuit.” Wiley at ¶ 12, 534
P.2d at 1295.
¶12 In Wiley, the Court found the plaintiffs
were engaged in a business because they had
renovated their house for the purpose of constructing a dog breeding and kenneling area.
They bred, raised, and sold dogs for profit; ran
classified ads to sell dogs; erected a large sign to
sell dogs; and sold numerous dogs at standard
rates of $75 to $300. The evidence in the present
case is substantially different. Although Plaintiffs
raised horses for a number of years prior to the
2003 fire, there were few ads, few sales, virtually
no income, and a substantial dispute as to
whether they had any profit motive.
¶13 Farmers’ strongest evidence of business
activity is Bailey’s reference to their “horse business,” and the fact that Plaintiffs took business
deductions on their federal tax returns and
applied for and received a state tax exemption
permit. However, these facts are not conclusive.
Plaintiffs dispute how these facts should be
interpreted. They allege that Bailey could not
know whether there was a “business” because
her medical problems kept her from being
actively involved, and that her reference to a
“business” was an off-the-cuff remark that did
not mean a “commercial business.” Plaintiffs
also contend that the tax returns and tax permits
were merely a utilization of the tax code to their
benefit.
¶14 While Bailey’s statement is relevant and
admissible as an admission, it is not conclusive
and may be explained. See State ex rel. Blankenship
v. Freeman, 1968 OK 54, ¶ 77, 440 P.2d 744, 760.
Likewise, Plaintiffs’ conduct to minimize their
taxes is merely one factor that may be examined
in determining whether an activity is a business.
See D. Marchitelli, Annotation, Construction and
Application of ‘Business Pursuits’ Exclusion Provision in General Liability Policy, 35 A.L.R. 5 th 375
§ 11 (1996); U.S. Auto Ass’n v. Lucas, 408 S.E.2d
171 (Ga. Ct. App. 1991); Millers Mut. Ins. Ass’n v.
Pennington, 888 S.W.2d 406 (Mo. Ct. App. 1994).
Clearly, the evidentiary material presented in
this case establishes that a substantial controversy exists which should be determined by the trier
of fact. For these reasons, the trial court erred in
Vol. 77 — No. 20 — 7/29/2006
granting summary judgment on Plaintiffs’
breach of contract theory
¶15 Plaintiffs also argue that the trial court
erred in granting summary judgment on their
theory of recovery for bad faith, more precisely
referred to as the breach of the duty of good faith
and fair dealing. See Badillo v. Mid Century Ins.
Co., 2005 OK 48, 121 P.3d 1080. The elements of
such a theory are: 1) the plaintiff’s loss was covered under the insurance policy issued by the
insurer; 2) the insurer’s refusal to pay the claim
in full was unreasonable under the circumstances because it had no reasonable basis for the
refusal, it did not perform a proper investigation,
or it did not evaluate the results of the investigation properly; 3) the insurer did not deal fairly
and act in good faith with the plaintiff; and 4) the
insurer’s violation of its duty of good faith and
fair dealing was the direct cause of the injury
sustained by the plaintiff. See OUJI-Civ No. 22.2
(2d ed.); Duensing v. State Farm Fire & Cas. Co.,
2006 OK CIV APP 15, 131 P.3d 127.
¶16 In most bad faith cases, “the decisive question is whether the insurer had a good faith
belief, at the time its performance was requested,
that it had a justifiable reason for withholding
payment under the policy.” Newport v. USAA,
2000 OK 59, ¶ 10, 11 P.3d 190, 195 (emphasis
added; internal quotation marks omitted). If
there is a legitimate dispute concerning coverage
or no conclusive precedential legal authority on
an issue, withholding payment is not unreasonable or in bad faith. Skinner v. John Deere Ins. Co.,
2000 OK 18, 998 P.2d 1219. However, in Newport,
the Supreme Court noted:
If there is conflicting evidence from
which different inferences may be drawn
regarding the reasonableness of insurer’s
conduct, then what is reasonable is always a
question to be determined by the trier of fact
by a consideration of the circumstances in
each case.
2000 OK 59 at ¶ 11, 11 P.3d at 195, quoting
McCorkle v. Great Atlantic Ins. Co., 1981 OK 128,
637 P.2d 583.
¶17 In this case, Farmers had a good faith
belief that there was a justifiable reason for withholding payment under the policy. Plaintiffs submitted evidentiary material suggesting that
Farmers previously paid Plaintiffs for a claim on
the same barn, under a similar policy, while they
were engaged in the same activities. Plaintiffs
imply that, because Farmers had essentially the
same evidence as it did when it paid the earlier
claim, its withholding payment on the present
claim is unreasonable and demonstrates a lack of
2149
good faith and fair dealing. Farmers responds
that it has additional evidence which was not
available at the time of the earlier claim. It refers
again to Bailey’s statement, the federal tax
returns, and the state tax exemption.
¶18 Even if no additional evidence existed, the
fact that Farmers paid an earlier, similar claim,
without more, does not demonstrate bad faith or
a breach of good faith. An insurer may withhold
payment and litigate any claim as to which the
insurer has a reasonable defense. Manis v. Hartford Fire Ins. Co., 1984 OK 25, 681 P.2d 760. An
insurer’s failure to dispute a claim when it has
the opportunity to do so, does not usually foreclose its right to dispute a later, similar claim, nor
does such conduct constitute a breach of its duty
of good faith. Insurers are free to make legitimate
business decisions (and mistakes) regarding payment, as long as they act reasonably and deal
fairly and in good faith with their insureds.
¶19 Indisputably, Farmers had additional
information that it did not have at the time of the
earlier claim. Moreover, it has presented extensive correspondence between its attorney and
Plaintiffs’ attorney discussing the factual and
legal reasons for withholding payment. The
record presents a clear and compelling demonstration of how to deal fairly and in good faith
with an insured. For these reasons, we find as a
matter of law that Farmers has acted reasonably
under the circumstances in its dealings with
Plaintiffs. The trial court properly granted summary judgment to Farmers on Plaintiffs’ bad
faith theory of liability.
CONCLUSION
¶20 Accordingly, we find that summary judgment should not have been granted on the
breach of contract theory of liability, and that
judgment is reversed and remanded for further
proceedings. However, we find that summary
judgment was properly granted to Farmers on
Plaintiffs’ breach of good faith and fair dealing
theory, and that judgment is affirmed.
¶21 AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED FOR FURTHER PROCEEDINGS.
REIF, J., concurs, RAPP, V.C.J., concurs in part
and dissents in part.
RAPP, V.C.J., concurring in part and dissenting
in part:
¶1 I concur as to the Majority’s holding on the
breach of contract claim, but dissent relative to
the Majority’s holding on the bad faith claim. I
would hold there is sufficient evidence upon
2150
which reasonable men could disagree concerning the bad faith claim and, therefore, this is an
issue for the trier of fact and not subject to summary judgment. I do agree that an insurer has a
right to dispute any claim without fear of bad
faith when the insurer’s dispute is made in good
faith and upon solid evidence, and not upon the
shifting sands foundation on which the refusal
here was based. Accordingly, I would hold the
trial court erred in its grant of summary judgment in the bad faith matter.
2006 OK CIV APP 86
IN THE MATTER OF THE ESTATE OF
HATTIE L. THIEL, Deceased, MELISSA D.
BRISCOE and MARSHA C. McDONALD,
Petitioners/Appellants, v. JOHN C. MORRIS,
Personal Representative of the Estate of Hattie
L. Thiel, Deceased; LOIS R. BOYETT;
BEVERLY HARRIS; and HELEN MORRIS,
Respondents/Appellees, and, DEBBIE
SMART, Respondent.
No. 102,892. June 8, 2006
STEPHENS COUNTY, OKLAHOMA
HONORABLE JOE H. ENOS, TRIAL JUDGE
DISMISSED
William A. Gossett, Duncan, Oklahoma, for Petitioners/Appellants,
Henry C. Bonney, Ronald E. Corley, Duncan,
Oklahoma, for Respondents/Appellees.
OPINION ON REHEARING BY CAROL M.
HANSEN, JUDGE:
¶1 Appellants seek rehearing of our opinion
filed on March 8, 2006. For the reasons stated
below, rehearing is granted, our previous opinion is withdrawn, and this appeal is dismissed.
¶2 Our opinion affirmed the trial court’s order
of November 29, 2005. That order granted summary judgment in favor of the Appellee Personal Representative and dismissed Appellant Petitioners’ Petition Contesting Will After Probate. Our
opinion noted that on December 20, 2005, Petitioners filed their Motion to Reconsider Ruling on
Personal Representative’s Motion for Summary Judgment, one day before they filed their Petition in
Error in this appeal.
¶3 Our opinion further noted the appellate
record did not reflect disposition of Petitioners’
Motion to Reconsider, but that this would not preclude our consideration of the appeal because
Petitioners’ motion had not been filed within ten
days of the date judgment was filed and did not
Vol. 77 — No. 20 — 7/29/2006
extend the period for appeal. Further, the opinion cited the statutory mandate in 12 O.S. 2001
§990.2(B) requiring the successful party on such
a motion to advise the Supreme Court of action
taken on the motion.
¶4 On March 29, 2006, Petitioners filed their
Petition for Rehearing of our March 8th opinion.
Petitioners, for the first time, advised this Court
that the trial court had granted their Motion to
Reconsider on February 8, 2006, and the trial
court judgment which was the subject of appeal
had been “withdrawn” by the trial court. Petitioners contended the appeal was therefore moot
and should be dismissed.
¶5 Personal Representative filed a response
and objection to Petitioners’ Petition for Rehearing. He first argues the §990.2(B) notification is
jurisdictional and that Petitioners’ failure to give
timely notice of the trial court’s vacation order
somehow retroactively deprived the trial court
of its jurisdiction to render the order. Personal
Representative’s second rationale for opposing
rehearing is that this Court’s opinion “would not
be rendered automatically moot if the trial
court’s revocation of the appealed order were
deemed valid for the reason that the opinion
issued by this Court has resolved a number of
issues critical to resolution of the case below.”
¶6 Petitioners assert their failure to provide the
notification required by §990.2(B) should be
excused because [a] §990.2(B) does not express a
time in which notification must be made, so they
were going to wait the thirty day appeal period
to see if Personal Representative was going to
appeal the vacation order, [b] Petitioners’ counsel’s mother was ill and died during the relevant
notification period, which limited his time to
perform his duties, and [c] this Court filed its
opinion sooner than Petitioners’ counsel had
expected.
¶7 We are unpersuaded the foregoing reasons
excuse Petitioners’ failure to provide this Court
timely notification the trial court had vacated the
judgment on appeal. First, Petitioners’ self-serving interpretation of §990.2(B) is inconsistent
with the clear legislative purpose of the notification requirement. Under §990.2(B), a post-trial
motion filed more than ten days after a judgment
is filed does not extend the time for appeal.
Therefore, appeal of the judgment must be filed
within the statutory time and then comes within
the cognizance of the appellate court process.
However, as recognized by Supreme Court Rule
1.37(a) (3), even as the appeal moves through the
appellate process, the trial court retains jurisdicVol. 77 — No. 20 — 7/29/2006
tion over, inter alia, motions or petitions for relief
provided in 12 O.S. 2001 §§1031 and 1031.1.
¶8 Thus, where, as here, the appellate court
decides to consider an appeal while a motion to
vacate is pending in the trial court, §990.2(B) is
clearly intended, in the interest of judicial economy, to provide the appellate courts with the earliest possible notification. The object is to allow
the appellate court to defer further action once it
is advised the trial court may have disposed of
the judgment or order which is the subject of
appeal. Waiting thirty days to determine if an
appeal was raised from the trial court’s order
vacating its judgment here obviously does not
serve that purpose, as should have been apparent to Petitioners. Petitioners should have notified this Court on the day the vacation order was
filed.
¶9 While we are sympathetic to the difficulties
Petitioner’s counsel experienced with the illness
of his mother, this too did not excuse the failure
of notification. Her illness was not discovered
until the end of February, long after the notification should have been made. Further, in the days
immediately surrounding the trial court’s vacation order on February 8th, Petitioners’ counsel
was able to draft the vacation order for the trial
court’s signature, and a comprehensive Response
to Personal Representative’s Motion to Enter.
¶10 Finally, Petitioners’ suggestion they
should be excused from the duty of timely notification because of “the speed with which the
opinion was issued” is not only totally without
merit, but likely unprecedented as a rationale for
inaction. An expectation this Court might not
carry out its duties with dispatch is hardly a
proper basis for parties to plan the performance
of their responsibilities.
¶11 While we are unpersuaded Petitioners
should be excused from their duty of notification
under §990.2(B), we are equally unpersuaded by
Personal Representative’s arguments as to why
Petitioners’ motion to dismiss the appeal should
be denied. Personal Representative asserts “the
jurisdiction of the trial court to reverse the order
which was appealed was valid only if [Petitioners’] counsel notified the Court of Civil Appeals
of the action taken by the trial court before it exercised its jurisdiction to rule on the said appeal.”
(Emphasis in original). We find nothing in
§990.2(B) to support that assertion. In fact, it is
inconsistent with Supreme Court Rule 1.37(a)(3),
which recognizes the trial court’s continuing
jurisdiction over motions to vacate after a petition in error is filed in the Supreme Court. While
we need not decide today at exactly what point
2151
in the appellate process the trial court would lose
that jurisdiction, it would not be before the
appellate court hands down its decision.
James E. Britton, Andrew D. Schwartz, BRITTON, RAMSEY AND GRAY, P.C., Oklahoma
City, Oklahoma, for Defendants/Appellants.
¶12 The trial court’s continuing jurisdiction to
vacate its judgment after an appeal is filed is relevant to arguments by both parties regarding
whether the trial court’s judgment may be moot.
We do not consider mootness to be the issue,
rather it is our jurisdiction at the time the March
8th opinion was handed down. Jurisdiction of
the Supreme Court, and accordingly this Court,
is pursuant to 12 O.S 2001 §952. That section, as
pertinent here, requires there to be a “final
order” before the appellate court.
JUDGE:
¶13 Here, although unknown to this Court, the
trial court, exercising its continuing jurisdiction,
vacated what had been its “final order” before
we exercised our jurisdiction over the judgment.
As a result, there effectively was no “final order”
remaining before us on March 8th and our jurisdiction to affect the trial court’s judgment had
lapsed. The question of our jurisdiction may be
considered, sua sponte, at any time prior to mandate. Jones v. Norris, 1939 OK 148, 185 Okla. 125,
90 P.2d 403. See also, Stites v. Duit Construction Co.,
Inc. 1995 OK 69, 903 P.2d 293 (Jurisdictional
inquiries into appellate or certiorari cognizance
may be considered and re-examined, on motion
or sua sponte, at any stage of the proceedings).
¶2 The procedural history is relatively brief.
On June 14, 2004, Plaintiffs Robert and Kathy
Elliott (Elliotts) filed their petition against
McCalebs for breach of warranty, negligence,
breach of contract, and punitive damages.
Elliotts failed to issue any summons, and on
November 12, 2004, the trial court dismissed
Elliotts’ case without prejudice under Rule 9(a)
of the Rules for the District Courts.1 On April 14,
2005, Elliotts issued a summons on Caleb
McCaleb which was signed for by “Andy
Means” on April 15, 2005. McCalebs filed a
motion for summary judgment on Elliotts’
claims on May 25, 2005. At a hearing on the
motion for summary judgment on July 1, 2005,
the trial court determined that the earlier dismissal rendered the court without jurisdiction to
hear McCalebs’ motion and struck from the
record all documents filed after the November 12
dismissal, including McCalebs’ motion for summary judgment. From this order, McCalebs
appeal.
¶14 Accordingly, Petitioners’ Petition for Rehearing is granted. Our opinion of March 8th is withdrawn and this opinion is substituted therefor.
This appeal is DISMISSED.
BELL, P.J., and JOPLIN, J., concur.
2006 OK CIV APP 87
ROBERT ELLIOTT and KATHY ELLIOTT,
Plaintiffs/Appellees, v. CALEB McCALEB,
McCALEB HOMES, INC., and McCALEB
LAND & DEVELOPMENT, LLC,
Defendants/Appellants.
No. 102,413. June 20, 2006
HONORABLE BARBARA G. SWINTON,
TRIAL JUDGE
AFFIRMED
W.R. Cathcart, Virginia Cathcart Holleman, Scott
D. Caldwell, CATHCART & DOOLEY, Oklahoma City, Oklahoma, for Plaintiffs/
Appellees,
2152
¶1 This appeal arises from the trial court’s
refusal to address the motion for summary judgment of Defendants Caleb McCaleb, McCaleb
Homes, Inc., and McCaleb Land and Development, LLC (collectively, McCalebs), filed after
the trial court’s dismissal of the case without
prejudice for failure to issue summons. After
reviewing the record submitted and applicable
law, we affirm the trial court’s decision.
¶3 Neither party on appeal contends that the
trial court’s dismissal under Rule 9(a) was
improper, and the dismissal itself has not been
appealed. McCalebs contend that the trial court
had jurisdiction after the dismissal to entertain
the motion for summary judgment and erred
when it refused to do so. Elliotts contend that the
dismissal terminated the trial court’s jurisdiction
with certain exceptions not applicable here, and
the trial court was correct in its refusal. Issues of
jurisdiction are questions of law reviewable by a
de novo standard without deference to the court
below. Jackson v. Jackson, 2002 OK 25, ¶ 2, 45 P.3d
418, 422.
¶4 McCalebs stated their position succinctly in
their brief in chief:
[W]hen the District Court issued the summons in the dismissed case and the Elliotts
served process on McCaleb, the Court
acquired jurisdiction over McCaleb, and
Vol. 77 — No. 20 — 7/29/2006
McCaleb was bound to respond. McCaleb
responded by filing a Motion for Summary
Judgment, and the Court was required to
rule on the Motion for Summary Judgment.
They rely on Wiley Electric, Inc. v. Brantley, 1988
OK 80, 760 P.2d 182, as dispositive of the jurisdictional issue. In Wiley, a lighting contractor
sued three defendants for breach of contract to
collect his unpaid bill and to foreclose his lien.
The plaintiff obtained summary judgment as to
one defendant and dismissed another defendant
without prejudice, and shortly thereafter, the
court dismissed the last defendant without
prejudice. In seeking to comply with 12 O.S.2001
§ 100,2 plaintiff then filed an amended petition in
the same case with substantially identical claims
against the three original defendants. One of the
defendants filed a motion for summary
judgment, claiming that the requirements of
§ 100 could be met only by filing a new lawsuit,
not by filing an amended petition in the
dismissed case. The Oklahoma Supreme Court
held that the trial court and the Court of Civil
Appeals were correct in holding that § 100
requires the filing of a new action and that the filing of an amended petition in a previously dismissed action is insufficient to invoke the savings provisions of § 100. Wiley, 1988 OK 80 at ¶
18, 760 P.2d at 187.
¶5 McCalebs argue that, because the trial court
in Wiley heard and ruled on the motion for summary judgment filed by one of the defendants
after the amended petition was filed, then the
trial court in the instant case also had jurisdiction
to hear McCalebs’ motion. In response, Elliotts
cite a number of cases for the proposition that a
valid dismissal deprives the trial court of jurisdiction to address the motion for summary judgment. General Motors Acceptance Corp. v. Carpenter, 1978 OK 39, 576 P.2d 1166; Green v. Jacobson,
1998 OK CIV APP 121, 963 P.2d 26; McCully v.
Wil-Mc Oil Corp., 1994 OK CIV APP 111, 879 P.2d
150 (all of which involved voluntary dismissals
by the plaintiff under § 684 of Title 12 of the
Oklahoma Statutes).
¶6 We agree that, as a general rule, the dismissal of a case has the effect of depriving the
trial court of further jurisdiction to act in the matter. “Once an action has been dismissed, no jurisdiction remains in district court to go forward
with the action.” General Motors, 1978 OK at ¶ 8,
576 P.2d at 1168. We see no reason to differentiate
between voluntary dismissals under 12 O.S.2001
§ 684 and dismissals by the court under Rule 9(a)
on the question of the dismissal’s effect on the
court’s exercise of jurisdiction.
Vol. 77 — No. 20 — 7/29/2006
¶7 As the Supreme Court noted in Wiley, however, there are situations, limited by prior rulings
in the action, which would not foreclose all
action by the trial court. Wiley, 1988 OK 80 at
n.19, 760 P.2d at 186. A trial court retains jurisdiction after dismissal to consider and impose
discovery sanctions for pre-dismissal conduct. In
Brown v. Curtis, 2003 OK CIV APP 47, 71 P.3d 34,
the Court of Civil Appeals held, “After the dismissal of the [Appellants] by [Appellee], the
Trial Court retained limited jurisdiction to consider [Appellants’] motion for attorney fees,
which was addressed to [Appellee’s] pre-dismissal discovery-related conduct.” Id. at ¶ 20, 71
P.3d at 38. The case before us, however, does not
involve the exercise of jurisdiction to address
pre-dismissal conduct.
¶8 The Brown court further stated that a trial
court’s “jurisdiction to impose discovery sanctions, like the jurisdiction to impose sanctions
under 12 O.S.2001 § 2011, survives a voluntary
dismissal.” Id. at ¶ 28, 71 P.3d at 40 (citing Bentley v. Hickory Coal Corp., 1992 OK CIV APP 68,
849 P.2d 417). The case before us does not involve
a motion for sanctions under § 2011.
¶9 The motion for summary judgment before
us asserts that (1) with the Rule 9(a) dismissal,
the trial court lacked jurisdiction to proceed on
Elliotts’ claims; (2) Elliotts’ attempt to revive
jurisdiction by issuing summons and serving
Caleb McCaleb was frivolous and unwarranted
by existing law; (3) there is no question of material fact; (4) McCalebs are entitled to judgment as
a matter of law; and (5) McCalebs are entitled to
a reasonable attorney’s fee and costs under 12
O.S.2001 § 2011.1.
¶10 McCalebs took the position in the motion
that, “[o]nce an action is dismissed, the jurisdiction of the Court over the subject matter of the
action terminates” and “[t]he Court lacks subject
matter jurisdiction to proceed here on [Elliotts’]
claims.” We agree. In examining the Wiley case,
the Oklahoma Supreme Court was faced with a
motion for summary judgment that raised a
jurisdictional question (i.e., whether an amended
petition was sufficient to confer jurisdiction on
the court under § 100 to consider plaintiff’s
claims). Unlike the present case, the plaintiff in
Wiley had filed an amended petition, and the
trial court was required to determine whether it
had jurisdiction to proceed with plaintiff’s
claims pressed in its amended petition. The
Supreme Court concluded that, once the dismissal was filed, the trial court was without further jurisdiction in the case and could not proceed further to consider plaintiff’s claims in the
dismissed case. Wiley, 1988 OK 80 at ¶ 13, 760
2153
P.2d at 186. The Court found that, when the case
was dismissed, there was no petition pending
which would be subject to amendment. Id. at
¶¶ 2, 17-18, 760 P.2d at 183, 187. The same analysis applies to the case at bar. Once the case was
dismissed without prejudice by the court, there
was no petition pending on which the court
could grant summary adjudication.
¶11 The language of Rule 13 of the Rules for
the District Courts3 makes it clear that it is a
mechanism for summary disposition of issues
“on the merits.” After dismissal, the trial court
had no authority to address the merits of any
issue raised by Elliotts in their petition, there
being no extant petition to address, and only limited authority to address ancillary issues as
noted above. It appears that McCalebs filed their
motion for summary judgment as a vehicle to
obtain attorney fees and costs. The predicate
motion is not in reality a motion for judgment on
the merits; it is a pretext for seeking attorney fees
and costs pursuant to § 2011.1. This section, however, requires an adjudication on the merits:
In any action not arising out of contract, the
court shall, upon granting a motion to dismiss an action or a motion for summary
judgment or subsequent to adjudication on
the merits, determine whether a claim or
defense asserted in the action by a nonprevailing party was frivolous.
12 O.S.2001 § 2011.1.
¶12 The Rule 9(a) dismissal in this case cannot
in any sense be considered an adjudication on
the merits, and Elliotts were free to refile their
claims.4 McCalebs were not asking the trial court
to determine the merits of Elliotts’ claims under
Rule 13 - the statement of undisputed facts set
forth in the motion has nothing to do with the
substance of Elliotts’ claims for breach of warranty, negligence, and breach of contract.
¶13 Under § 2011.1, only frivolous claims or
defenses may subject the nonprevailing party to
attorney fees and costs; McCalebs complain of
Elliotts’ issuing summons and obtaining service.
These are not actions subject to the rubric of
§ 2011.1.
¶14 Finally, McCalebs cannot be construed to
be prevailing parties, as required under this section, because there has been no adjudication on
the merits and Elliotts were free to refile their
claims after the previous dismissal that was not
on the merits.
¶15 Using a motion for summary judgment as
a vehicle to become a prevailing party for purposes of § 2011.1 does not confer jurisdiction on
2154
the court, and we decline to broaden the field of
exceptions to the general rule terminating jurisdiction upon dismissal to include such motions.
¶16 The trial court’s finding on the jurisdictional issue is therefore affirmed.
¶17 AFFIRMED.
GOODMAN, J., and REIF, J. (sitting by designation), concur.
1. Rule 9(a) provides: “In any case in which summons is not issued or
waiver filed within ninety (90) days after the filing of the petition, . . . the
action may be dismissed by the court without notice to the plaintiff.” 12
O.S.2001, Ch. 2, App. 1.
2. 12 O.S.2001 § 100 states: “If any action is commenced within due
time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff . . . may
commence a new action within one (1) year after the reversal or failure
although the time limit for commencing the action shall have expired
before the new action is filed.”
3. The pertinent portion of Rule 13(a), 12 O.S.2001 Ch. 2, App. 1, provides: “A party may move for either summary judgment or summary disposition of any issue on the merits on the ground that the evidentiary
material filed with the motion or subsequently filed with leave of court
show that there is no substantial controversy as to any material fact.”
(Emphasis added.)
4. Elliotts have, in fact, refiled their claims in a new case, number CJ2005-8250, assigned to the same trial judge. McCalebs filed a motion to
dismiss the new action. Even though the instant case was on appeal, the
trial court sua sponte struck the motion to dismiss and consolidated the
new case with the instant case. The trial court’s consolidation may not be
justifiable; given the dismissal of the first case, there is no extant case in
which to consolidate any new claims. Provisions for consolidation of
cases presuppose pending cases, not cases disposed of. The appeal of that
trial court determination was dismissed on May 2, 2006, for lack of an
appealable order.
2006 OK CIV APP 88
IN THE MATTER OF K.U., M.U., AND T.U.,
Alleged Deprived Children. STATE OF
OKLAHOMA, Plaintiff/Appellee, v.
JONATHAN USSERY, Defendant/Appellant.
No. 102,877. June 22, 2006
CLEVELAND COUNTY, OKLAHOMA
HONORABLE STEPHEN W. BONNER,
JUDGE
REVERSED AND REMANDED
Scott D. Raybern, Assistant District Attorney,
Norman, Oklahoma, for Plaintiff/Appellee,
Keith J. Nedwick, L. Todd Nalagan, LAW
OFFICES OF KEITH J. NEDWICK, Norman,
Oklahoma, for Defendant/Appellant.
Opinion by Kenneth L. Buettner, Chief Judge:
¶1 Defendant/Appellant Jonathan Ussery
(Father) appeals the trial court’s judgment adjudicating deprived his three minor children, K.U.,
M.U., and T.U. (collectively, Children). Plaintiff/Appellee State of Oklahoma filed a petition
alleging Father failed to provide Children with
proper care or parental supervision. Specifically,
Vol. 77 — No. 20 — 7/29/2006
the State alleged Father sexually abused his sixyear-old daughter, K.U. At trial, the trial judge
questioned K.U. in camera, on the record, and
found her available to testify. Nevertheless, the
trial court held that requiring the child to testify
in open court would be too traumatic. The trial
court also did not allow K.U. to testify by an
alternative method. After hearing the testimony
of the DHS social worker, who first interviewed
K.U., the trial judge determined the totality of
the circumstances provided sufficient indicia of
reliability so as to render K.U.’s extra-judicial
statements inherently trustworthy. Based on
these findings, the trial judge admitted the social
worker’s testimony regarding K.U.’s out-ofcourt statements under 12 O.S.Supp.2004
§2803.1, the statutory hearsay exception applicable to statements by minor children describing
physical or sexual abuse in criminal or juvenile
proceedings. Father appeals, arguing the trial
court erred in applying §2803.1; in refusing to
permit Father to call M.U. and T.U. as witnesses;
and in determining the evidence was sufficient
to find Children deprived. We hold that the trial
court erred in its application of §2803.1, and
reverse and remand for further proceedings.
Factual Background and Procedural History
¶2 Father and Teresa Lane (Mother) are
divorced. Father had physical custody of Children. DHS received a tip that K.U. was acting out
in a sexualized manner inappropriate for her age
and sent a social worker, Krista Jimerson-Beach,
to investigate. Jimerson-Beach first met with
K.U. at her elementary school in the presence of
a school counselor. She conducted an extensive
interview which resulted in incriminating statements against Father supporting sexual abuse.
¶3 Following her conversation with K.U.,
Jimerson-Beach interviewed Mother about the
allegations. Mother admitted K.U. had disclosed
sexual abuse by Father approximately one year
earlier, telling Mother she did not like it when
Father pulled down her panties.
¶4 As a result of these interviews, the State
moved for temporary emergency custody of
Children, which the trial court granted. The State
then filed its Petition seeking to adjudicate Children deprived.
¶5 Prior to the hearing on the deprived Petition, DHS timely notified Father under 12
O.S.Supp.2004 §2803.1(B) of its intent to offer
into evidence the out-of-court statements K.U.
made to Jimerson-Beach implicating Father in
sexual abuse. DHS asserted the hearsay was
admissible under §2803.1 because K.U. made
them spontaneously when asked if she had been
Vol. 77 — No. 20 — 7/29/2006
touched in an unsafe place, and specifically she
was only six years old at the time of the statements, which suggested she had no motive to
fabricate allegations against Father. Father
objected, arguing Jimerson-Beach’s testimony
was inadmissible hearsay because K.U.’s out-ofcourt statements did not contain sufficient indicia of reliability and K.U. was available to testify
at trial.1
¶6 At the hearing on the deprived Petition, the
State called Jimerson-Beach as its first witness.
The trial court allowed her to testify as to K.U.’s
statements, subject to Father’s continuing
hearsay objection.2
¶7 At the conclusion of Jimerson-Beach’s testimony, Father and the State contested the proper
application of 12 O.S.Supp.2004 §2803.1. The trial
judge then interviewed K.U. in chambers with
only K.U.’s counsel present. When the trial judge
asked K.U. if she previously had met with Jimerson-Beach, K.U. indicated in the affirmative.
When the trial judge inquired as to what K.U.
had told Jimerson-Beach, K.U. responded, “I’m
thinking.” K.U. later admitted in response to the
trial judge’s questioning that she has had some
“unsafe” things happen to her and that her “real
dad” had touched her inappropriately in some
places that are private. At different points in the
interview, K.U. said both that she would not be
able to answer questions from a stranger and
that she would be able to tell her story to someone else. K.U. could not identify whom she
would want to sit with her to make her feel comfortable when answering such questions.
¶8 After interviewing K.U. in camera, the trial
court found she was available to testify but
determined it would be traumatic for her to do
so. The trial court further held that the totality of
circumstances surrounding Jimerson-Beach’s
taking of K.U.’s out-of-court statements provided sufficient indicia of reliability to render them
inherently trustworthy. Accordingly, the trial
court determined the provisions of the §2803.1
hearsay exception were met and admitted Jimerson-Beach’s testimony regarding K.U.’s out-ofcourt statements implicating Father in sexual
abuse.
¶9 At the close of Father’s evidence, the trial
court held the State had met its burden of proof
and adjudicated Children deprived. Father
appeals.
Standard of Review
¶10 Because deprived child hearings are civil
in nature, appeals from district court decisions in
deprived child cases are handled as civil, rather
than criminal, appeals. 10 O.S.2001 §7003-6.4(A);
2155
see also In re P.F., 2005 OK CIV APP 50, ¶25, 118
P.3d 224, 229. The burden of proof is on the State
to demonstrate the basis for the deprived-status
adjudication by a preponderance of the evidence. See In re P.F., ¶25, 118 P.3d at 229, citing In
re G.G., 2004 OK CIV APP 71, ¶5, 97 P.3d 1155,
1160. The relevant statute, 10 O.S.2001 §70034.5(A), provides:
If the court finds that the allegations of a
petition alleging a child to be deprived are
supported by the evidence, and finds that it
is in the best interests of the child and the
public that the child be made a ward of the
court, the court shall sustain the petition,
and shall make an order of adjudication
finding the child to be deprived and shall
adjudge the child as a ward of the court.
Accordingly, this Court will “thoroughly review
the record in light of the requirements and affirm
the trial court’s ruling if it is not contrary to the
clear weight of the evidence.” Id. ¶27, 118 P.3d at
229, citing In re C.T., 1999 OK CIV APP 55, ¶6,
983 P.2d 523, 525.3 Further, we will employ our
plenary, independent, and nondeferential
authority to re-examine the trial court’s legal rulings as warranted. See Neil Acquisition, L.L.C. v.
Wingrod Investment Corp., 1996 OK 125, 932 P.2d
1100, n.1.
Discussion
¶11 Title 12 O.S.Supp.2004 §2803.1, “Statements by Certain Children Regarding Physical
or Sexual Abuse — Admissibility,” represents the
legislature’s intent to allow a child’s out-of-court
statements to be introduced as evidence in abuse
cases where circumstances ensure the reliability
of the statements, in order to avoid inflicting further trauma on the child by requiring her to testify in court. See Matter of A.D.B., 1989 OK CIV
APP 55, 778 P.2d 945, 946 n.1.
¶12 Section 2803.1 provides, in pertinent part:
A. A statement made by a child who has not
attained thirteen (13) years of age or a person
who is an incapacitated person as such term
is defined by the provisions of Section 10-103
of Title 43A of the Oklahoma Statutes, which
describes any act of physical abuse against the
child or incapacitated person or any act of sexual
contact performed with or on the child or incapacitated person by another, is admissible in
criminal and juvenile proceedings in the
courts in this state if:
1. The court finds, in a hearing conducted outside
the presence of the jury, that the time, content
and totality of circumstances surrounding the
taking of the statement provide sufficient indicia
2156
of reliability so as to render it inherently trustworthy. In determining such trustworthiness,
the court may consider, among other things,
the following factors: the spontaneity and
consistent repetition of the statement, the
mental state of the declarant, whether the
terminology used is unexpected of a child of
similar age or of an incapacitated person,
and whether a lack of motive to fabricate
exists; and
2. The child or incapacitated person either:
a. testifies or is available to testify at the proceedings in open court or through an alternative method pursuant to the provisions of
the Uniform Child Witness Testimony by
Alternative Methods Act4 or Section 2611.2 of
Title 12 of the Oklahoma Statutes, or
b. is unavailable as defined in Section 2804 of
this title as a witness. When the child or incapacitated person is unavailable, such statement may be admitted only if there is corroborative evidence of the act.5
***
12 O.S.Supp.2004 §2803.1 (emphasis added).
¶13 Section 2803.1 therefore allows for the
admission of a hearsay statement of a child
under 13 who alleges physical or sexual abuse.
However, the statute allows for the admission of
the statement only if the court has held a hearing
to determine if there are sufficient indicia of reliability, and the child is available to testify subject
to cross-examination;6 or, if the child is unavailable as a witness, the statement may be admitted
only if there is corroborating evidence of the act.
¶14 Here, the trial court found the totality of
circumstances surrounding Jimerson-Beach’s
taking of K.U.’s statements provided sufficient
indicia of reliability so as to render the statements inherently trustworthy. The trial court further determined K.U. was available to testify.
However, the trial court refused to allow K.U. to
testify based on its conclusion that testifying
would be traumatic for her. The trial court concluded its findings satisfied the requirements of
§2803.1 and admitted Jimerson-Beach’s hearsay
testimony of K.U.’s statements implicating
Father in sexual abuse.
¶15 Father contends the evidence presented
was insufficient to ensure the hearsay statements
were reliable, citing In re P.F., supra, 118 P.3d at
230, for the proposition that “before the testimony becomes ‘available,’ it must meet the trustworthiness test.” Father points to the fact that,
during her interview with the trial judge, K.U.
acknowledged meeting with Jimerson-Beach but
Vol. 77 — No. 20 — 7/29/2006
failed to offer any substantive testimony regarding the circumstances surrounding her out-ofcourt statements. Father contends that, as such,
the trial court did not have sufficient evidence
upon which to base its determination either that
K.U.’s extra-judicial statements to JimersonBeach bore sufficient indicia of reliability or that
K.U. was competent at the time she made the
statements implicating Father in sexual abuse.
¶16 Father’s argument assumes the trial court
must base its trustworthiness determination
exclusively on the testimony of the minor child,
when this condition is nowhere set forth in
§2803.1. The trial court merely is charged with
finding “in a hearing conducted outside the
presence of the jury, that the time, content and
totality of circumstances surrounding the taking
of the statement provide sufficient indicia of reliability so as to render it inherently trustworthy.”
12 O.S.Supp.2004 §2803.1(A)(1). In so doing, “the
court may consider, among other things, the following factors: the spontaneity and consistent
repetition of the statement, the mental state of
the declarant, whether the terminology used is
unexpected of a child of similar age or of an incapacitated person, and whether a lack of motive
to fabricate exists.” Id. These enumerated factors
clearly anticipate the trial court’s reliance on witnesses other than the minor child in gleaning
information about the time, content, and circumstances surrounding the taking of the out-ofcourt statements. Indeed, it would not be expected that a minor child, especially one as young as
K.U., would testify regarding her mental state,
the age-appropriateness of her terminology, or
the spontaneousness and consistency of her
extra-judicial statements. We affirm the trial
court’s finding that the circumstances showed
sufficient indicia of reliability.
¶17 Father next asserts the trial court erred in
finding K.U. was available to testify when the
trial court also found she could not testify
because to do so would be traumatic for K.U.
Father argues the trial court erred in applying
§2803.1 in a way that found K.U. available while
not allowing Father to call her to testify. Father
contends the trial court’s determination that K.U.
was available to testify was in error. Under the
original version of §2803.1, enacted in 1984, outof-court statements of minor children in abuse
cases were admissible if there were sufficient
indicia of reliability and the child either “testifie[d] at the proceedings” or was “unavailable as
defined in Title 12 as a witness.” Then, as now,
the statute required corroboration of hearsay
statements if the declarant was unavailable. See
12
O.S.Supps.1984
&
1986
§2803.1
Vol. 77 — No. 20 — 7/29/2006
(A)(2)(a) & (b). Accordingly, under the statute as
written in the mid-1980’s, if a child witness did
not testify, she was deemed “unavailable” and
the proponent was required to provide corroborative evidence of the alleged abuse in order for
the out-of-court statements to be admissible. See
12 O.S.Supps.1984 & 1986 §2803.1(A)(2).
¶18 Section 2803.1 has since been amended to
provide that where sufficient indicia of reliability exist, the out-of-court statements of a minor
child are admissible if the child “testifies or is
available to testify at the proceedings in open court
or through an alternative method,” or “is
unavailable as defined in Section 2804 of this title
. . . [and] there is corroborative evidence of the
act.” 12 O.S.Supp.2004 §2803.1(A)(2)(a) &
(b)(emphasis added). Accordingly, a minor child
is no longer required to testify in order to admit
the hearsay statements under §2803.1(A)(2)(a).
This change is consistent with the legislative
intent to protect children from the trauma of testifying where the trial court finds their out-ofcourt statements inherently trustworthy. The
amended statute protects the child witness by
giving the parties the option not to call the available child witness, while preserving the reliability afforded by knowing the child could be called
as a witness.
¶19 Where a child is deemed “available to testify” but does not in fact testify, the State is not
required to produce corroborative evidence of
the alleged abuse in order for the trial court to
rule hearsay testimony admissible. For example,
where the State has sought to introduce hearsay
statements of a child and the trial court has made
the required finding of sufficient indicia of reliability, the trial court may conclude the child is
available to testify (either in open court or by an
alternative method pursuant to the Act), but the
parties may elect not to call the child to testify to
avoid trauma to the child or for strategic reasons.
So long as the trial court would have allowed the
child to testify, the child is available, thus
§2803.1(A)(2)(a) is satisfied. It is the availability of
the child witness, whether or not actually called,
which affords an additional element of reliability
supporting the hearsay exception. On the other
hand, in the case of an unavailable witness, reliability must be demonstrated by corroboration.
¶20 Here, based upon K.U.’s presence in court
and the trustworthiness of her statement, the
trial court labeled her “available” to testify under
§2803.1. But, when Father tried to call K.U. as a
witness, the State objected and the trial court sustained the objection. The trial court concluded
that cross-examination would traumatize K.U.
and the trial court therefore did not allow K.U. to
2157
testify. A witness cannot both be “available to
testify at the proceedings in open court or
through an alternative method” (for application
of §2803.1(A)(2)(a)) and “unavailable as defined
in Section 2804”7 (for application of §2803.1
(A)(2)(b)).
¶21 When the trial court refused to allow
Father to call K.U. to testify, because it would be
too traumatic, the trial court effectively declared
her unavailable under §2804(A)(4). As such, corroboration was required by §2803.1(A)(2)(b). As
the Oklahoma Court of Civil Appeals explained
in Matter of A.D.B., supra, 778 P.2d at 947, the crucial factor is not the physical availability of the
child witness, but the availability of her testimony. Matter of A.D.B. offers a thorough analysis of
the distinction between available and unavailable witnesses. Of particular note is the holding
that a child is an unavailable witness where the
trial court has found the child incompetent as a
witness. 778 P.2d at 947-948, citing State v. Lanter,
237 Kan. 309, 310, 699 P.2d 503, 505 (1985) and
Lancaster v. People, 200 Colo. 448, 615 P.2d 720
(1980).
¶22 Accordingly, though the child may be
physically present, as K.U. was here, she was
unavailable as a witness if due to an existing
infirmity (such as susceptibility to trauma from
testifying) the proponent is not able to present a
confrontable witness’s testimony.8 And §2803.1
expressly provides that where the child witness
is unavailable, corroboration of the alleged act is
required.
¶23 In order to admit uncorroborated hearsay
statements under §2803.1, the child declarant
must (in open court or by alternative method)
either testify or be available to testify, even if not
called to do so. The trial court erred in labeling
K.U. available but not allowing her to be called
to testify. Because the trial court misapplied the
standard of availability, we reverse and remand
so the trial court may reconsider whether K.U. is
available, and therefore whether to allow her to
testify in court or through an alternative
method.9
¶24 We may remand a case for proper application of a standard or statute. In re Baby Girl L.,
2002 OK 9, ¶30, 51 P.3d 544. Where a cause is
reversed and remanded, it returns to the trial
court as if it had never been decided, save only
for the “settled law” of the case. Smedsrud v. Powell, 2002 OK 87, ¶13, 61 P.3d 891. The parties are
relegated to their prejudgment status and are
free to re-plead or re-press their claims as well as
defenses. Id.
2158
¶25 Father’s next point of error on appeal is
that the trial court erred in not allowing him to
call his sons, M.U. and T.U. to the stand.10
Because we reverse for a new hearing, Father
will have the opportunity to properly subpoena
his sons and the State may defend in any appropriate manner. However, with respect to witness
fees, we note that it was undisputed Father failed
to tender witness fees along with the subpoenas
as required by 12 O.S.Supp.2002 §2004.1(B)(1).
Father’s argument that he should not have to
provide witness fees until the conclusion of
attendance because the case is “quasi-criminal”
in nature is without merit. His insistence that
State employees are not entitled to receive witness fees when subpoenaed to testify on any
matter pertaining to their employment is likewise immaterial, given that he subpoenaed his
two sons, not any DHS employees.
¶26 We REVERSE AND REMAND for further
proceedings consistent with this opinion. Specifically, the trial court is directed to re-determine
whether K.U. is available or unavailable as a witness, for purposes of §2803.1.
ADAMS, J., concurs, and MITCHELL, P.J.,
dissents.
1. Father’s response to the State’s notice was designated as part of the
record on appeal, but it is not in the record. However, Father preserved
his objection at the hearing.
2. After Jimerson-Beach testified, the State called Father to testify. The
State did not ask Father any questions after Father announced he was
asserting his Fifth Amendment right against self-incrimination and
would refuse to answer any of the trial court’s or the State’s questions,
even those not seeking incriminating answers. In Matter of C.C., 1995 OK
CIV APP 127, ¶¶8-11, 907 P.2d 241, the Oklahoma Court of Civil Appeals
held that because deprived child cases and termination of parental rights
proceedings are civil in nature, the State may draw an adverse inference
against a party who has claimed his Fifth Amendment rights. And, the
State is allowed to comment on the adverse inference. Id.
The West Virginia Supreme Court of Appeals has explained that
“because the purpose of an abuse and neglect proceeding is remedial,
where the parent . . . fails to respond to probative evidence offered against
him . . . , a lower court may properly consider that individual’s silence as
affirmative evidence of that individual’s culpability.” West Virginia Dept.
of Health and Human Resources ex rel. Wright v. Doris S., 197 W.Va. 489, 475
S.E.2d 865, 874.
3. This Court notes that the standard of review in termination of
parental rights cases was changed in In re S.B.C., 2002 OK 83, 64 P.3d 1080.
In such cases now, a termination of rights will be reversed if there is a lack
of clear-and-convincing evidence to support the termination. That standard of review, however, has not been made applicable to deprived child
proceedings.
4. The Uniform Child Witness Testimony by Alternative Methods Act
(the Act), 12 O.S.Supp.2003 §§2611.3-2611.11, was adopted in Oklahoma
effective November 1, 2003. It defines “alternative method,” describes the
testimony to which it applies, provides for a hearing on the issue of
whether an alternative method of testifying is warranted and an order,
and finally, requires that the alternative method allows for examination
and cross-examination of the child witness. The transcript of the hearing
in this case shows the trial court considered allowing K.U. to testify by an
alternative method, but ultimately elected not to do so.
5. The parties appear to agree that the only way the trial court could
have determined K.U. to be unavailable to testify under the present facts
would be if she had a “then existing physical or mental illness or infirmity” under 12 O.S.Supp.2002 §2804(A)(4). While the State did not present
evidence corroborating the act described in the hearsay statement, the
social worker testified Mother reported to her that K.U. had complained
of Father touching her inappropriately a year earlier. The social worker
Vol. 77 — No. 20 — 7/29/2006
testified K.U.’s aunt reported the same story. The social worker also testified that K.U. was examined by a doctor after being removed from
Father’s home. The doctor did not testify. Because the trial court found
K.U. was an available witness, we do not determine whether there was
sufficient corroboration presented to admit the hearsay evidence under
§2803.1(A)(2)(b). On remand, should the trial court find K.U. unavailable
as a witness, it would need to determine whether there is corroborating
evidence under this statute.
6. The requirement that the testimony be “in open court” negates any
conclusion that an in-chambers conversation with the trial judge means
the child “testifies.” This “in open court” language was added to the
statute in 2004, after the decision in Matter of W.D., 1985 OK 65, 709 P.2d
1037, where the Court apparently equated a child’s responding to questions only from the trial judge, without questioning by counsel, with testifying.
7. Under §2804(A)(4), a witness is unavailable when the declarant is
unable to be present or to testify at the hearing because of death or then
existing physical or mental illness or infirmity.
8. For example, Matter of A.S., 1989 OK CIV APP 91, 790 P.2d 539,
noted that it was reasonable to find that a two year old was unavailable
as a witness even though she was present in the courtroom.
9. We do not find In Matter of W.D., 1985 OK 65, 709 P.2d 1037, to control these proceedings. That case applied 12 O.S.Supp.1984 §2803.1 which
is substantially different from the current §2803.1. In that case, the statute
required the child to either testify or be unavailable. The Supreme Court
held that the child had testified where she was questioned by the court,
even though not subject to cross-examination by either party. In this case,
the trial court only questioned whether K.U. had spoken to JimersonBeach and whether K.U. would answer questions from others. The trial
court did not question K.U. on the content of her statements about Father.
Additionally, the Act, adopted after Matter of W.D., requires that where a
child testifies by an alternative method, the trial court must afford the
parties the opportunity to examine and cross-examine the child. 12
O.S.Supp.2003 §2611.10.
10. After the State rested, Father attempted to call K.U.’s brothers,
M.U. and T.U., to the stand in his defense. Forty-eight hours prior to trial,
Father had issued subpoenas to DHS commanding the boys to appear.
Father did not include witness fees with the subpoenas. Counsel for the
State and Children each stated they had not received copies of the subpoenas and were not on notice of Father’s plans to call M.U. and T.U. as
witnesses. The trial judge sustained the State’s objection to the subpoenas
because they were untimely and failed to include witness fees. See 12
O.S.Supp.2002 §2004.1(C)(3)(a)(1) & (B)(1).
your source for OBA news.
STATE OF OKLAHOMA, DEPARTMENT
OF HUMAN SERVICES CHILD SUPPORT ENFORCEMENT DIVISION
The Kay County (Ponca City) Child Support Office has an opening for a full-time attorney with experience in child
support enforcement. This position requires an in depth legal knowledge to prepare and file pleadings and to try cases
in child support related hearings in district and administrative courts. Duties include consultation and negotiation with
other attorneys and customers. This position is the lead legal management position, which must oversee office legal
systems and insure that office staff comply with high standards for quality customer service and ethical guidelines. Law
office management and government attorney knowledge and experience is preferred. Active membership in the
Oklahoma Bar Association is required. This Child Support Enforcement Attorney V, 4224 is the Managing Attorney for
Kay County (Ponca City)-CSE (beginning salary $4274.50 monthly). Interested individuals must send a cover letter,
resume, three reference letters, and a copy of current OBA card to: Child Support Enforcement Division, Attn.;
Personnel, Box 53552, Oklahoma City, OK 73152. Applications must be received no earlier than 8:00 AM Friday July
31, 2006 and no later than 5:00 PM Friday, August 11, 2006.
THE STATE OF OKLAHOMA IS AN EQUAL OPPORTUNITY EMPLOYER
Vol. 77 — No. 20 — 7/29/2006
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This course is specifically designed for attorneys
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NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT
OF Angela dawn trimble, SCBD # #5206
TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION
Notice is hereby given pursuant to Rule 11.3(b), Rules Governing
Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be
held to determine if Angela Dawn Trimble should be reinstated to
active membership in the Oklahoma Bar Association.
Any person desiring to be heard in opposition to or in support of
the petition may appear before the Professional Responsibility
Tribunal at the Oklahoma Bar Center at 1901 North Lincoln
Boulevard, Oklahoma City, Oklahoma, at 9:30 a.m. on Monday,
September 11, 2006. Any person wishing to appear should contact
Dan Murdock, General Counsel, Oklahoma Bar Association, P. O. Box
53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007,
no less than five (5) days prior to the hearing.
PROFESSIONAL RESPONSIBILITY TRIBUNAL
2160
Vol. 77 — No. 20 — 7/29/2006
BAR NEWS
OBA Nominating Petitions
(See Article II and Article III of the OBA Bylaws)
OFFICERS
BOARD OF GOVERNORS
VICE PRESIDENT
SUPREME COURT JUDICIAL DISTRICT
THREE
JACK S. DAWSON, OKLAHOMA CITY
Petitions have been filed nominating Jack S.
Dawson for election of Vice President of the
Board of Governors of the Oklahoma Bar Association for a one-year term beginning
January 1, 2007. Fifty of the names thereon are
set forth below:
William G. Paul, Andrew M. Coats, R. Fourney
Sandlin, Anthony Massad, Burck Bailey, John
Gaberino Jr., Melissa DeLacerda, M. Joe
Crosthwait, Michael D. Evans, J. Duke Logan,
Gary C. Clark, Sidney G. Dunagan, Duke Halley, Monty L. Bratcher, Timothy Kline, R. Clark
Musser, Stephen L. Barghols, Rex Travis,
David Pomeroy, Jerry Tubb, Walter D. Hart Jr.,
David Kearney, Ethan Allen, Fenton Ramey,
Larry M. Spears, Rodney Sherrer, Roland
Tague, Stephen Elliott, David K. Petty, Terry
Ragsdale,
Rania
Nasreddine,
Amelia
Fogleman, David Keglovits, Renee DeMoss,
Mary Bernice Shedrick, James V. Murray, D.
Scott Pappas, Anthony Seeberger, John P. Kent,
Ty Johnson, Daniel Medlock, Clyde H. Amyx
II, Glen Dresback, Brad Benson, Oliver S.
Howard, Michael E. Mayberry, Amy M. Stipe,
Daniel A. Nickel, Jeremy K. Webb, Julie D.
Stanley.
A total of 76 signatures appear on the
petitions.
CATHY M. CHRISTENSEN, OKLAHOMA CITY
Petitions have been filed nominating Cathy M.
Christensen for election to the Board of Governors of the Oklahoma Bar Association as a representative from Supreme Court Judicial District Three for a three-year term beginning January 1, 2007. Twenty-five of the names thereon
are set forth below:
Charles F. Alden III, Benjamin J. Butts, J. Clay
Christensen, Wade Christensen, Mark
Anthony Clayborne, M. Joe Crosthwait Jr.,
Jonathan David Echols, Thomas Jon Goldman,
Jimmy K. Goodman, John Joseph Griffin Jr.,
Michael S. Lair, Mack K. Martin, Shanda Marie
McKenney, Judy Hamilton Morse, Brooke
Smith Murphy, Daniel Michael O’Neil Jr.,
William G. Paul, Travis A. Pickens, Richard P.
Propester, Reid E. Robison, Joseph L. Ruffin,
Linda L. Samuel-Jaha, Michael M. Stewart,
Mark K. Stonecipher, Harry A. Woods Jr.
petitions.
MEMBER-AT-LARGE
DEBORAH A. REHEARD, EUFAULA
Petitions have been filed nominating Deborah
A. Reheard for election of the Board of Governors representing Members at Large of the
Oklahoma Bar Association for a three-year
term beginning January 1, 2007.
petitions.
Vol. 77 — No. 20 — 7/29/2006
2161
FOR YOUR INFORMATION
OBA Member Resignations
The following OBA members have resigned as members
of the association and notice is hereby given of such
resignation:
Sherrie R. Abney
OBA No. 13232
2840 Keller Springs Road,
Suite 204
Carrollton, TX 75006
Noble Dean Daniel
OBA No. 2149
211 E. Main St.
Pawhuska, OK 74056-5215
Harold G. Drain
OBA No. 18368
720 N. Commerce No. 234
Ardmore, OK 73401
Thomas Mason Furlow
OBA No. 20383
9311 San Pedro No. 900
San Antonio, TX 78216
Viola Wilgus Hagberg
OBA No. 3692
9810 Meadow Valley Drive
Vienna, VA 22181-3215
Penny J. Hamilton
OBA No. 20571
1507 Likins
El Paso, TX 79925
Kameron D. Kelly
OBA No. 18408
2405 Grand Boulevard,
Suite 400
Kansas City, MO 64108
Christin S. McMeley
OBA No. 16694
12405 Powerscourt Drive
St. Louis, MO 63131
Maria Antonia Medellin
OBA No. 17318
3702 Lake Shade Ct
Kingwood, TX 77345
Mary Allison Pride
OBA No. 16530
565 S. Mason Suite 211
Katy, TX 77450
Wallace Allen Richardson
OBA No. 7556
1248 “O” St. Suite 1000
Lincoln, NE 68508
Elizabeth Ann Srp
OBA No. 19341
616 Third Ave
Camanche, IA 52730
OBA Member
Reinstatements
The following members of the
OBA suspended for noncompliance with the Rules for Mandatory Continuing Legal Education have complied with the
requirements for reinstatement,
and notice is hereby given of
such reinstatement:
John Knox Bounds
OBA No. 993
1011 E. Jefferson
Hugo, OK 74743-0787
Mark Edgar Collum
OBA No. 1821
3100 N.W. 20th St.
Oklahoma City, OK
73107-3002
David Jonathan Fishman
OBA No. 15007
P.O. Box 448
Newtown, PA 18340
Larry Joe Freeman
OBA No. 16496
316 N. Broadway, Suite B
Shawnee, OK 74801
Melissa L. Tatum
OBA No. 18895
1914 E. 52nd St.
Tulsa, OK 74105-6414
David P. Rowland
OBA No. 7795
P.O. Box 1436
Bartlesville, OK 74005-1436
Joe Winfield
OBA No. 9767
1265 DeHaro, Unit B
San Francisco, CA 94107
Steven William Vincent
OBA No. 9237
403 S. Cheyenne Ave.,
Suite 401
Tulsa, OK 74103
Camille R. Martin
OBA No. 20088
101 North Alabama Ave.,
4th Floor
Deland, FL 32724
2162
Vol. 77 — No. 20 — 7/29/2006
OBA Member Reinstatements
The following members of the OBA suspended for nonpayment of dues have complied with the
requirements for reinstatement, and notice is hereby given of such reinstatement:
Michael Dean Billings
OBA No. 17912
200 N. Harvey, Suite 1700
John Knox Bounds
OBA No. 993
1011 E. Jefferson
Hugo, OK 74743-0787
Stephen Gregory Butler
OBA No. 20640
23918 River Place Drive
Katy, TX 77494
M. Allen Core
OBA No. 12617
230 Fifth
Pawhuska, OK 74056
David Jonathan Fishman
OBA No. 15007
P.O. Box 448
Newtown, PA 18940
Terry Eldon Gish
OBA No. 17634
8500 N. Stemmons Freeway
Suite 6045
Dallas, TX 79247
Charles L. Henry
OBA No. 16845
527 NW 23rd St., Suite 150
James A Ikard
OBA No. 4540
P.O. Box 20365
James Lawrence Knight
OBA No. 14762
3312 Rosewood Lane
J. Edward Oliver
OBA No. 6768
219 N. Harvey, No. 107
Brett Dean Sanger
OBA No. 14850
803 Robert S. Kerr Ave.
Jeffery Joseph Sheridan
OBA No. 12476
P.O. Box 210
Leonard, OK 74043
Barbara Womack Webb
OBA No. 10157
224 S. Market St.
Benton, AR 72015
Andrew Trevor Wheeler
OBA No. 19013
2637 S. Boston Place
Tulsa, OK 74114
Andrew Eual Wood
OBA No. 9837
3020 Shadybrook Drive
Midwest City, OK 73110
DALLAS BAR ASSOCIATION REVIEW OF OIL AND GAS LAW XXI
August 24 & 25, 2006
Belo Mansion, 2101 Ross Avenue, Dallas, Texas 75201
Thursday August 24th
8:30am - 9:25am
9:25am - 10:15am
10:15am - 10:30am
10:30am - 11:25am
11:25am - 12:15pm
12:15pm - 1:30pm
1:40pm - 2:30pm
2:30pm - 3:20pm
Friday August 25th
8:30am - 9:25am
9:25am - 10:15am
10:15am - 10:30am
10:30am - 11:25am
11:25am - 12:25pm
12:25pm - 1:40pm
1:50pm - 2:50pm
2:50pm - 3:40pm
Texas/Oklahoma Case Law Update
Choice of Entity Decision Tree After Margin Tax and Texas Business Organizations Code
Break
Update on Texas Title Standards
Energy Policy Act of 2005
Lunch (on your own)
International Investing - Country Risk
Regulatory, Legislative and Judicial Developments Affecting the Electrical Power Industry in Texas
Daubert and Robinson Challenges in Oil and Gas Litigation
Conflicting Rights between Surface/Mineral Estates
Break
Pattern Jury Charges for Oil and Gas
Disclosure Obligation/Securities Issues in Oil and Gas Transactions
Lunch
Insurance Issues in the Oil and Gas Industry
Have License, Will Travel? The Status of Multi-Jurisdictional Practice
Affiliate Transactions in Oil and Gas
Approved is being sought by the Oklahoma Bar Association for 12.0 hours of continuing legal education.
Advance registration is $270 if registered by August 16th and $295 onsite
Please contact Sandra Anderson: slanderson@pattonboggs.com for information on how to register.
Vol. 77 — No. 20 — 7/29/2006
2163
Bilingual Substance
Abuse, Drug Testing,
and DUI Services
www.okcsos.com
One Stop Can Meet All of Your Clients Needs
Know Someone in
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Have your client mention this advertisement for
reduced fees. DUI Assessment and ADSAC
fees are mandated by the State.
HANDBOOK OF SECTION 1983 LITIGATION, 2006 EDITION
David W. Lee I Comingdeer, Lee & Gooch I Oklahoma City
Y
ou can spend days researching the voluminous commentary on
Section 1983 litigation—or you can order a copy of Handbook
of Section 1983 Litigation by David W. Lee.
Here are five reasons why Handbook of Section 1983 Litigation is
the one reference you will always want in your briefcase:
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2164
Law & Business
Vol. 77 — No. 20 — 7/29/2006
Mandates Issued
THE SUPREME COURT
101,594
In the Matter of the Estate of Rose
Marie Jernigan, deceased. Robert
Mark Jernigan v. Janna H. Jernigan.
COURT OF CRIMINAL APPEALS
Friday, July 14, 2006
102,240
In the Matter of the Estate of David
Lewis Akers, Deceased. Jeffrey
Akers v. Bobbie Akers.
102,413
Robert Elliott and Kathy Elliott v.
Caleb McCaleb, McCaleb Homes,
Inc. and McCaleb Land & Development.
102,557
Lenora Simmons v. City of Midwest City, a municipal corporation.
102,728
Vicki Butrick Koch v. Voyager
Property and Casualty Insurance
Company.
102,839
Calvin McPherson v. Bath Unlimited and/or Gamco, Masco Corp
and The Workers’ Compensation
Court.
102,877
In the Matter of K.U., M.U., and
T.U.: Jonathan Ussery v. State of
Oklahoma.
PCD-2003-7 Mitchell v. State of Oklahoma.
C-2005-164 Christian. v. State of Oklahoma.
COURT OF CIVIL APPEALS
100,550
Kenneth P. McKinney v. Delores
Maxine McKinney.
101,961
Billy C. Marler and G. Darlene
Marler v. Evan R. Flood, James
Ricky Webb and B. & D. Farms
Candy Co., Inc., an Oklahoma Corporation.
102,187
Andrew Clay v. Shirley Leverette.
Stress.
Depression.
Addiction.
For help, call LifeFocus Counseling Services at
(405) 840-5252 or toll-free 1(866) 726-5252.
The OBA is now offering all bar members up to six hours of
free crisis counseling. It’s strictly confidential and available
24 hours a day.
More information about the program
can be found at www.okbar.org.
Vol. 77 — No. 20 — 7/29/2006
2165
OKLAHOMA BAR ASSOCIATION
Law-related Education Division
LAWYERS IN THE CLASSROOM
“If you would thoroughly know anything, teach it to others.”
- Tryon Edwards
V
olunteers are needed for the OBA/LRE
Lawyers in the Classroom program!
Oklahoma attorneys are invited to go back
to school and present law-related topics to students
at all levels. We will provide you with tips for
speaking with students, training on classroom
presentations, and lesson plans to guide your visit.
Numerous teachers have already requested lawyers
as guest speakers for the current school year. We
will connect you with a school in your community
— or anywhere in the state you’d like to speak!
If you’d like to be a Lawyers in the Classroom
presenter, please fill out and return the form below.
We are especially interested to know if you have
participated in this program in the past.
You know the law... now teach!
LESSON TOPICS:
• Contracts Law
• Constitution and Bill of
Rights
• Rules and Law
• Fourth Amendment
• First Amendment
• On to Adulthood
With booklet, “You’re 18 Now - It’s Your
Responsibility!”
• INFORM
Information Now for Oklahomans
Rejecting Meth
• Criminal Law
• Careers in Law
With brochure
LAWYERS IN THE CLASSROOM VOLUNTEER FORM 2006-07
Training Session(optional) Friday, August 11, 2006, 9:00 am — 3:00 pm at the Oklahoma Bar Association
LUNCH WILL BE PROVIDED
Title: ___________________ Name: __________________________________________
Address: ________________________________________________________________
City: ____________________________ County: ______ State: ____ Zip: _____________
Phone: ________________________ Email: _______________________________
Check all that apply:
❑
I would like to be a Lawyers in the Classroom speaker.
I am interested in speaking on the following topic(s) (Circle all that apply):
Contracts / Constitution & Bill of Rights / Rules and Law / Fourth Amendment
First Amendment / On to Adulthood / Meth Awareness / Criminal / Careers in Law / Other
❑
I am willing to speak (Circle all that apply)
In my county / in neighboring counties / outside my area / statewide
❑
I have participated in Lawyers in the Classroom in the past.
❑
I would like to attend the Lawyers in the Classroom training session Friday, August 11, 2006
Special training INFORM Program will be from 1-3 p.m. • All other program trainings will take place
from 9 a.m. - 12 p.m.
Return this form to: OBA/LRE • PO Box 53036 • Oklahoma City, OK 73152 • Fax: (405) 416-7088
2166
Vol. 77 — No. 20 — 7/29/2006
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
SUMMARY OPINIONS
Tuesday, June 20, 2006
F-2004-874 — Deitric Benard Pierson, Appellant, was tried by jury in Case No. CF-2003-3541
in the District Court of Oklahoma County for
the crime of Sexual Abuse of a Child. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment. The trial court
sentenced accordingly. From this judgment and
sentence Deitric Benard Pierson has perfected
his appeal. The judgment of the District Court
shall be AFFIRMED; however, the sentence shall
be ordered MODIFIED to a term of thirty (30)
years imprisonment. Opinion by Lewis, J.;
Chapel, P.J., concurs; Lumpkin, V.P.J., concurs in
part/dissents in part; C. Johnson, J., concurs; A.
Johnson, J., concurs.
Wednesday, June 21, 2006
F-2005-533 — Timothy Bryan Turner, Appellant, was tried by jury for the crimes of Burglary
in the Second Degree (Count I), Eluding an Officer (Count II), Unauthorized Use of a Vehicle
(Count III), Misdemeanor Resisting an Officer
(Count IV), all after former conviction of two or
more felonies in Case No. CF-2005-450, in the
District Court of Tulsa County. The jury
as punishment twenty-five (25) years imprisonment and a $10,000 fine on Count I, six (6) years
imprisonment and a $5,000 fine on Count II, six
(6) years imprisonment and a $2,500 fine on
Count III, and one (1) year imprisonment in the
county jail and a $500 fine on Count IV. The trial
court sentenced accordingly. From this judgment and sentence Timothy Bryan Turner has
perfected his appeal. AFFIRMED. Opinion
by Chapel, P.J.; Lumpkin, V.P.J., concur; C.
Johnson, J., concur; A. Johnson, J., concur; Lewis,
J., concur.
F-2005-395 — Larry Wayne Miller, Appellant,
was tried by jury for the crimes of Unlawful Possession of a Controlled Drug (Methamphetamine) (Count I) and Unlawful Possession of
Drug Paraphernalia (Count III) in Case No. CF2004-21, in the District Court of Haskell County.
The jury returned a verdict of guilty and recomVol. 77 — No. 20 — 7/29/2006
mended as punishment two (2) years imprisonment on Count I and six (6) months imprisonment with a $1,000 fine on Count III. The trial
court sentenced accordingly. From this
judgment and sentence Larry Wayne Miller has
perfected his appeal. AFFIRMED. Opinion by
Chapel, P.J.; Lumpkin, V.P.J., concur; C. Johnson,
J., concur; A. Johnson, J., concur; Lewis, J.,
concur.
F-2004-1042 — Melvin Eugene Barton, Appellant, was tried by jury for the crime of FirstDegree Rape, three counts, in Case No. CF-2003382 in the District Court of LeFlore County. The
jury returned a verdict of guilty and
recommended as punishment seven years
imprisonment for Count One and five years
imprisonment each for Counts Two and Three.
The trial court sentenced accordingly ordering
the sentences to be served consecutively. From
this judgment and sentence Melvin Eugene
Barton has perfected his appeal. The Judgment
and Sentence of the trial court is AFFIRMED.
Opinion by A. Johnson, J.; Chapel, P.J., concur in
results; Lumpkin, V.P.J., concurs in results; C.
Johnson, J., concurs; Lewis, J., concurs.
F-2005-405 — Edward Mark Szczepan, Jr.,
Appellant, was tried in a non-jury trial for the
crime of Assault and Battery upon a Police Officer, After Former Conviction of Two Felonies in
Case No. F-2005-405 in the District Court of Pottawatomie County. The Honorable Douglas L.
Combs found Szczepan guilty and sentenced
him to four years imprisonment and a fine of
$1,000. From this judgment and sentence
Edward Mark Szczepan, Jr. has perfected his
appeal. The Judgment of the trial court is
AFFIRMED; the Sentence is MODIFIED to one
year imprisonment and a fine of $500. Opinion
by A. Johnson, J.; Chapel, P.J., concurs; Lumpkin, V.P.J., concurs; C. Johnson, J., concurs;
Lewis, J., concurs.
Thursday, June 22, 2006
RE-2005-333 — Brian Wayne Eccles, Appellant, entered a guilty plea to a charge of Unlawful Possession of a Controlled Dangerous Substance and Public Drunk in Case No. CF-20022786 in the District Court of Tulsa County.
2167
Appellant’s sentencing was deferred for four (4)
years. On November 24, 2003, Appellant’s
deferred sentence was accelerated and he was
sentenced to four (4) years, all suspended. On
March 30, 2005, Appellant’s suspended sentence
was revoked in full. From this judgment and
sentence, Appellant appeals. Appellant’s judgment and sentence is AFFIRMED. Chapel, P.J.,
concurs; Lumpkin, V.P.J., concurs; C. Johnson,
J., concurs; A. Johnson, J., concurs; Lewis, J.,
concurs.
Friday, June 23, 2006
F-2005-400 — Roger Lee Lawrence, Appellant,
was tried by jury for the crime of Count 1, Murder in the First Degree; and Count 2, Shooting
with Intent to Kill in Case No. CF-2004-113 in
the District Court of Delaware County. The jury
as punishment Life imprisonment for Murder in
the first degree and acquitted Appellant of
Shooting with Intent to Kill. The trial court sentenced accordingly. From this judgment and
sentence Roger Lee Lawrence has perfected his
appeal. AFFIRMED. Opinion by Lewis, J.;
Chapel, P.J., concurs; Lumpkin, V.P.J., concurs;
C. Johnson, J., concurs; A. Johnson, J., concurs.
F-2004-1292 — Reginald Jackson, Appellant,
was tried by jury for the crime of Murder in the
First Degree in Case No. CF-2003-3371 in the
District Court of Oklahoma County. The jury
as punishment Life imprisonment. The trial
court sentenced accordingly. From this judgment and sentence Reginald Jackson has perfected his appeal. The judgment and sentence of
the District Court of Oklahoma County is
AFFIRMED. Opinion by Lewis, J.; Chapel, P.J.,
concurs; Lumpkin, V.P.J., concurs in results; C.
Johnson, J., concurs; A. Johnson, J., concurs.
F-2005-169 — Harvey Dale Bradford, Appellant, was tried by jury and found guilty in the
District Court of Bryan County, Case No. CF2003-351, of Count 1, child abuse, in violation of
10 O.S. 2001 §7115 (A); and Count 2, child sexual abuse, in violation of 10 O.S. 2001 §7115 (E).
The jury sentenced Appellant to life imprisonment and a $5,000 fine in each count. The trial
court sentenced accordingly. From this judgment and sentence Harvey Dale Bradford has
perfected his appeal. AFFIRMED Opinion by
Lewis, J.; Chapel, P.J., concurs; Lumpkin, V.P.J.,
concurs; C. Johnson, J., concurs; A. Johnson, J.,
concurs.
2168
F-2005-330 — Carol Ann Gregory, Appellant,
was tried by jury and found guilty in the District
Court of Oklahoma County, Case No. CF-20023019, of Count 1, child abuse, in violation of 10
O.S.2001 §7115 (A). The jury sentenced Appellant to thirty (30) years imprisonment. The trial
court sentenced accordingly. From this judgment and sentence Carol Ann Gregory has perfected his appeal. AFFIRMED. Opinion by
Lewis, J.; Chapel, P.J., recused; Lumpkin, V.P.J.,
concurs.
C-2005-977 — John F. Farley, Petitioner, pled
guilty in the District Court of Grady County,
Case No. CF-2003-43, to aggravated manufacturing or attempting to manufacture methamphetamine, in violation of 63 O.S.Supp. 2002 §2401 (G)(3)(h). The Honorable Richard G. Van
Dyck, District Judge, found Petitioner guilty and
sentenced him to forty (40) years imprisonment
and a $50,000 fine. Petitioner applied to withdraw his plea. After an evidentiary hearing on
Petitioner’s application, the District Court
denied relief. Petitioner seeks the writ of certiorari from the judgment of the District Court.
After thorough consideration of the arguments
and the record presented, the writ of certiorari is
denied. From this judgment and sentence John
F. Farley has perfected his appeal. AFFIRMED.
Opinion by Lewis, J.; Chapel, P.J., concurs;
Lumpkin, V.P.J., Concurs; C. Johnson, J., concurs; A. Johnson, J., concurs.
F-2005-682 — Appellant Mario Donnell Johnson was tried by jury and convicted of Assault
and Battery with a Dangerous Weapon After
Former Conviction of a Felony, Case No. CF2004-1990 in the District Court of Tulsa County.
The jury recommended as punishment ten (10)
years imprisonment and the trial court sentenced accordingly. It is from this judgment and
sentence that Appellant appeals. AFFIRMED.
Opinion by Lumpkin, V.P.J.; Chapel, P.J., concur
in result; C. Johnson, J., concur; A. Johnson, J.,
concur; Lewis, J., concur in result.
F-2005-357— Appellant, Bruce Morris Barnett,
was tried by jury in the District Court of Tulsa
County, Case Number CF-2004-3545, and convicted of Trafficking in Illegal Drugs (more than
20 grams of methamphetamine), Count I, and
misdemeanor possession of marijuana, Count II.
The jury set punishment at ten (10) years imprisonment and no fine on Count I and six months
on Count II. The trial judge sentenced Appellant
in accordance with the jury’s determination, ran
Vol. 77 — No. 20 — 7/29/2006
the sentences concurrently, and added a fine of
$100,000 on Count I, based upon the mandatory
statutory language. Appellant now appeals his
convictions and sentences. The judgment and
sentence are hereby AFFIRMED, except the fine
portion of Appellant’s sentence is hereby MODIFIED to $25,000.00. Opinion by Lumpkin, V.P.J.;
Chapel, P.J., concur; C. Johnson, J., concur; A.
Johnson, J., concur in result; Lewis, J., concur.
F-2005-415 — Appellant, Latusio Yaki Scallion,
was tried by a jury and convicted of, count two,
Possession of a Firearm after Conviction or During Probation in violation of 21 O.S.Supp.2002,
§1283; and, count three, Assault and Battery in
violation of 21 O.S.2001, §644; in Kiowa County
District Court, Case No. CF-2004-26. The jury
assessed punishment at six (6) years imprisonment on count two, and sixty (60) days confinement in the county jail and a $500 fine on count
three. Judge Barnett sentenced Scallion, ordering that the fine be waived and that the sentences be served concurrently. The trial court
sentence Latusio Yaki Scallion has perfected his
appeal. The judgment and sentences of the District Court shall be AFFIRMED. Opinion by
Lewis, J.; Chapel, P.J., concurs; Lumpkin, V.P.J.,
concurs.
C-2005-311 — Emily Burns, Petitioner, pled
guilty to the crimes of Robbery with a Firearm
and False Declaration of Ownership in Pawn in
Case Nos. CF-2004-336 and CF-2004-332 in the
District Court of Grady County. The Honorable
Richard Van Dyck accepted her plea and sentenced her to 25 years imprisonment and a $100
fine for Robbery and five years imprisonment
and a $100 fine for False Declaration of Ownership in Pawn. Burns now appeals the district
court’s order denying her motion to withdraw
guilty plea. The Petition for Writ of Certiorari is
GRANTED. The Judgment is AFFIRMED. The
Sentence in the False Declaration of Ownership
in Pawn is AFFIRMED and the Sentence for
Robbery with a Firearm is MODIFIED to ten
years imprisonment. Opinion by A. Johnson, J.;
Chapel, P.J., concurs in results; Lumpkin, V.P.J.,
dissents; C. Johnson, J., concurs; Lewis, J.,
concurs.
F-2004-290 — Michael DeWayne Smith,
Appellant, was tried by jury for the crime of
Vol. 77 — No. 20 — 7/29/2006
First Degree Murder in Case No. CF-2001-6232
in the District Court of Oklahoma County. The
jury returned a verdict of guilty on the lesser
included offense of murder in the second degree
and recommended as punishment life imprisonment. The trial court sentenced accordingly.
From this judgment and sentence Michael
DeWayne Smith has perfected his appeal. The
Judgment and Sentence of the trial court is
AFFIRMED. Opinion by A. Johnson, J.; Chapel,
P.J., concurs in results; Lumpkin, V.P.J., concurs
in results; C. Johnson, J., concurs; Lewis, J.,
concurs.
F-2004-1277 — Justin Lynn Hammons, Appellant, was tried by jury and found guilty in the
District Court of Tulsa County, Case No. CF2004-1724, of Count 1, trafficking in illegal
drugs, in violation of 63 O.S.Supp.2003 § 415;
Count 2, possession of marijuana with intent to
distribute, in violation of 63 O.S.Supp.2003 § 2401 (B)(2); Count 3, maintaining a dwelling
where controlled drugs are kept, in violation of
63 O.S.2001 § 2-404 (A)(6); Count 4, failure to
obtain drug tax stamp, in violation of 68
O.S.2001 § 450.8 (B); Count 5, possession of paraphernalia in violation of 63 O.S.2001 § 2-405. The
trial court sentenced accordingly. Justin Lynn
Hammons, Appellant, was tried by jury and
found guilty in the District Court of Tulsa County, Case No. CF-2004-1724, of Count 1, trafficking in illegal drugs, in violation of 63
O.S.Supp.2003 § 415; Count 2, possession of
marijuana with intent to distribute, in violation
of 63 O.S.Supp.2003 § 2-401 (B)(2); Count 3,
maintaining a dwelling where controlled drugs
are kept, in violation of 63 O.S.2001 § 2-404
(A)(6); Count 4, failure to obtain drug tax stamp,
in violation of 68 O.S.2001 § 450.8 (B); Count 5,
possession of paraphernalia in violation of 63
O.S.2001 § 2-405. From this judgment and sentence Justin Lynn Hammons has perfected his
appeal. The Judgment and Sentences of the District Court of Tulsa County in Counts 1, 2, 4, and
5 are AFFIRMED. The Judgment and Sentence
in Count 3 is REVERSED. Opinion by Lewis, J.;
Chapel, P.J., concurs in results; Lumpkin, V.P.J.,
concurs in part/dissents in part; C. Johnson, J.,
concurs; A. Johnson, J., concurs.
M-2005-199 and M-2005-200 — Randall Guy
Copeland, Appellant, appealed to this Court
from his misdemeanor Judgments and Sentences for Violation of Protective Order, entered
after a jury trial before the Honorable David
2169
Youll, Special Judge, in Case Nos. CM-2004-4878
and CM-2004-5901 in the District Court of Tulsa
County. AFFIRMED. Chapel, P.J., concurs in
part/dissents in part; Lumpkin, V.P.J., concurs;
C. Johnson, J., concurs; A. Johnson, J., concurs;
and Lewis, J., specially concurs.
F-2005-288 — George Luther Carter, III,
Appellant, was tried by jury for the crime of Sexual Abuse of a Child in Case No. CF-2003-305 in
the District Court of Lincoln County. The jury
as punishment thirty (30) years imprisonment.
The trial court sentenced accordingly. From this
judgment and sentence George Luther Carter, III
has perfected his appeal. REVERSED AND
REMANDED FOR A NEW TRIAL. Opinion by
C. Johnson, J.; Chapel, P.J., concurs; Lumpkin,
V.P.J., dissents; A. Johnson, J., concurs; Lewis, J.,
concurs.
F-2005-463 — Appellant, Penny Crain Calise,
was tried by the bench in the District Court of
Oklahoma County, Case Number CF-2004-3794,
and convicted of one count of Embezzlement by
Employee and 18 counts of Embezzlement, after
former conviction of two or more felonies. The
court set punishment at 50 years on each count
with 25 years suspended, and all counts running
concurrently. The court also ordered Appellant
to pay $100,000.00 in restitution under 22 O.S.
2001 § 991a, to begin after service of her sentence. Appellant now appeals her sentence.
AFFIRMED. Opinion by Lumpkin, V.P.J.;
Chapel, P.J., concur in part/dissent in part; C.
J., specially concur.
RE-2005-414 — On April 26, 1999, in the District Court of Oklahoma County, Case No. CF1998-7103, Appellant, Oscar Earl Humphrey, Jr.,
was placed upon probation and his sentencing
deferred for a period of five (5) years upon an
offense of Concealing Stolen Property. On September 5, 2000, in Case No. CF-1998-4281,
Appellant was found guilty of Burglary II and
sentenced to five (5) years imprisonment, suspended. On that same date, in Case No. CF2000-755, Appellant was convicted of Possession
of Controlled Dangerous Substances (cocaine)
and sentenced to ten (10) years imprisonment,
suspended. Appellant now appeals from final
orders pronounced on April 18, 2005, by the
Honorable Tammy Bass-Jones, District Judge,
that revoked in full both of Appellant’s suspended sentences and that accelerated Appel2170
lant’s deferred sentencing. Due to the District
Court’s acceleration order, Appellant was sentenced to a term of five (5) years imprisonment
for the Concealing Stolen Property offense in
CF-98-7103. AFFIRMED WITH INSTRUCTIONS to the District Court to file proper journal entries of its acceleration order and revocation orders. Chapel, P.J., concurs; Lumpkin,
V.P.J., concurs in results; C. Johnson, J., concurs;
A. Johnson, J., concurs; Lewis, J., concurs.
Wednesday, July 5, 2006
RE 2005-1025 — The revocation of Appellant,
Johnnie Ray Snodgrass, suspended sentence in
the District Court of Cherokee County, District
Court Case No. CF-2004-458, is AFFIRMED, but
the matter is REMANDED for an Order Nunc
Pro Tunc to correct the Order Revoking Suspended Sentence to accurately reflect Appellant’s plea of no contest/nolo contendere and that
Appellant contested the State’s Application to
Revoke. Chapel, P.J., concurs Lumpkin, V.P.J.,
concurs; Lewis, J., concurs
F-2005-603 — Maurice Ladon Miller, Appellant, was tried by jury for the crimes of First
Degree Murder (Count 1); and Conspiracy to
Commit a Felony (Robbery) (Count 2) in Case
No. CF-2003-5573 in the District Court of Oklahoma County. The jury returned a verdict of
guilty on both counts and recommended as
punishment life imprisonment on Count 1 and
six (6) years imprisonment on Count 2. Judge
ordered sentences to run concurrently with each
other and consecutively to the federal sentence
Appellant was serving at the time to trial. The
trial court sentenced accordingly. From this
judgment and sentence Maurice Ladon Miller
has perfected his appeal. The Judgments and
Sentences imposed in Oklahoma County District Court, Case No. CF-2003-5573, are hereby,
REVERSED AND REMANDED FOR A NEW
TRIAL. OPINION BY: C. Johnson, J.; Chapel,
P.J., concurs; Lumpkin, V.P.J., concurs in
part/dissents in part; A. Johnson, J., recuse;
Lewis, J.,concurs.
Thursday, July 6, 2006
F-2005-511 — Appellant Randy DeWayne Barrett was tried by jury and convicted of First
Degree Felony Murder, Case No. CF-2005-511 in
the District Court of Tulsa County. The jury recommended as punishment life imprisonment
and the trial court sentenced accordingly. It is
from this judgment and sentence that Appellant
Vol. 77 — No. 20 — 7/29/2006
appeals. AFFIRMED. Opinion by Lumpkin,
V.P.J.; Chapel, P.J., concur in results; C. Johnson,
concur.
F-2005-597 — Keandre Lee Sanders, Appellant, was tried by jury for the crimes of Count 1:
Robbery with a Firearm, After Conviction of a
Felony; Count 2: Shooting with Intent to Kill,
After Conviction of a Felony; and Count 3: Possession of a Firearm, After Conviction of a
Felony in Case No. CF-2005-207 in the District
Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment
fifteen (15) years imprisonment on Count 1,
forty (40) imprisonment on Count 2, and five (5)
years imprisonment on Count 3. The trial court
sentence Keandre Lee Sanders, has perfected his
appeal. The Judgment of the district court is
AFFIRMED. The Sentence on Count 1 is
MODIFIED from fifteen years to twelve years
imprisonment, and the sentence on Count 2 is
MODIFIED from forty years to thirty years
imprisonment. Opinion by C. Johnson, J.;
results; A. Johnson, J., concurs; Lewis, J.,
concurs.
F-2004-73 — Darel John Barnett, Appellant,
was tried by jury for the crimes of Count 1 —
First Degree Rape and Count 4 — Lewd
Molestation, each after former conviction of one
felony, in Case No. CF-1996-2296 in the District
150 years imprisonment on each count. The trial
court sentenced accordingly ordering the sentences to be served consecutively. From this
judgment and sentence Darel John Barnett has
perfected his appeal. The Judgment and Sentence of the trial court is AFFIRMED. Opinion
by A. Johnson, J.; Chapel, P.J., concurs in part,
dissents in part; Lumpkin, V.P.J., concurs; C.
Johnson, J., concurs; Lewis, J., concurs in part,
dissents in part.
C-2005-1187 — Kimberly Rane O’Clair, Petitioner, entered unnegotiated (“blind”) pleas of
guilty to the crimes of Child Sexual Exploitation
(Count 1); and Crime Against Nature (Count 2)
in Case No. CF-2005-136 in the District Court of
Beckham County. The district court sentenced
Petitioner to forty-five (45) years imprisonment
on Count 1, and ten (10) years imprisonment on
Count 2, ordering the sentences to be served
Vol. 77 — No. 20 — 7/29/2006
consecutively. Petitioner filed a motion to withdraw her pleas and the district court denied the
request. Thereafter, Petitioner lodged this
appeal. The Petition for Writ of Certiorari is
DENIED, and the Judgment and Sentence of the
district court is hereby AFFIRMED. Opinion by
C. Johnson, J.; Chapel, P.J., concurs in part/
dissents in part; Lumpkin, V.P.J., concurs; A.
Johnson, J., concurs; Lewis, J., concurs.
F-05-392 — Ronald Lavel Hubbard, Appellant,
was tried by jury for the crimes of two counts of
Delivery of a Controlled Dangerous Substance
(Cocaine Base) in Case No. CF-03-226, CF-2003227, in the District Court of Nowata County. The
jury returned a verdict of guilty and recommended as punishment twenty (20) years
imprisonment on each count to be served consecutively. The trial court sentenced accordingly.
From this judgment and sentence Ronald Lavel
Hubbard has perfected his appeal. The Judgments are AFFIRMED and the Sentences are
MODIFIED to be served concurrently Opinion
by Chapel, P.J.; Lumpkin, V.P.J., concur in
part/dissent in part; C. Johnson, J., concur; A.
Johnson, J., concur; Lewis, J., concur.
F-2004-1283 — Marion Whitmore, Appellant,
was tried by jury for the crimes of Possession of
Controlled Substance (Methamphetamine) After
Two or More Prior Convictions (Count I), and
Unlawful Possession of Drug Paraphernalia
(Count II) in Case No. CF-2004-59, in the District
Court of LeFlore County. The jury returned a
verdict of guilty and recommended as punishment sixty-five (65) years imprisonment on
Count I and one (1) year in the county jail and a
fine of $1,000 on Count II with the sentences to
be served concurrently. The trial court sentenced
accordingly. From this judgment and sentence
Marion Whitmore has perfected his appeal. The
Judgments are AFFIRMED and the Sentence for
Possession of Methamphetamine (Count I),
however, is MODIFIED from imprisonment for
sixty-five (65) years to imprisonment for thirtyfive (35) years. Opinion by Chapel, P.J.; Lumpkin, V.P.J., concur in part/dissent in part; C.
Johnson, J., Concur; A. Johnson, J., concur;
Lewis, J., concur.
F-2004-1279 — Daniel Hawkes Fears, Appellant, was tried by jury for the crimes of Counts I
and II, Murder in the First Degree; Counts III —
X, Shooting with Intent to Kill, Count XI, Discharging a Firearm with Intent to Kill; Count
XII, Feloniously Pointing a Firearm; and Counts
XIII — XVII, Drive by Shooting in Case No. CF-
2171
2002-568, in the District Court of Sequoyah
County. The jury returned a verdict of guilty and
recommended as punishment two terms of life
imprisonment without the possibility of parole,
to run consecutively (Counts I and II); nine
terms of life imprisonment in Counts III — XI,
each to be served consecutively to Counts I and
II and concurrently to one another; nine (9) years
and one (1) day in Counts XIII — XVII, each to
be served consecutively to Counts III — XI and
concurrently with Counts XII — XVI. The trial
court sentenced accordingly. From this judgment and sentence Daniel Hawkes Fears has
perfected his appeal. The Judgment and Sentence of the District Court is REVERSED and
REMANDED for ENTRY OF A VERDICT OF
NOT GUILTY BY REASON OF INSANITY.
Opinion by Chapel, P.J.; Lumpkin, V.P.J., concur
in part/dissent in part; C. Johnson, J., concur
in results; A. Johnson, J., concur; Lewis, J.,
specially concur.
Tuesday, July 11, 2006
C-2006-213 — Gregory Wayne Thompson,
Appellant, pled guilty to Knowingly Concealing
Stolen Property in Case No. CF-05-52, in the District Court of Blaine County. The Honorable
Mark A. Moore sentenced Thompson five (5)
years imprisonment plus costs and restitution in
the amount of $14,408.34. From this judgment
and sentence Gregory Wayne Thompson has
Chapel, P.J.; Lumpkin, V.P.J., concur; C. Johnson,
concur.
F-2005-1057 — Saul E. Mintz, Appellant, was
tried by jury for the crimes of two counts of Robbery with a Firearm in Case No. CF-2005-780, in
the District Court of Tulsa County. The jury
as punishment ten (10) years imprisonment and
a $1,500.00 fine on Count I and fifteen (15) years
imprisonment and a $2,000.00 fine on Count II.
judgment and sentence Saul E. Mintz has perfected his appeal. The Judgment and Sentence
for Count I is AFFIRMED and the Judgment for
Count II is AFFIRMED, but the Sentence is
MODIFIED to ten (10) years imprisonment
Opinion by Chapel, P.J.; Lumpkin, V.P.J., concur
in results; C. Johnson, J., concur; A. Johnson, J.,
concur; Lewis, J., concur.
F-2004-1128 — Appellant, Keisha Deshon
Glover, was tried by jury in the District Court of
Oklahoma County, Case Number CF-2001-3615,
2172
and convicted of Second Degree Murder. The
jury set punishment at life imprisonment. The
trial judge sentenced Appellant in accordance
with the jury’s determination. Appellant now
appeals her conviction and sentence.
Chapel, P.J., concur in result; C. Johnson, J. concur; A. Johnson, J., concur; Lewis, J., concur in
result.
F-05-652 — Wayne Raymond Haston, Appellant, was tried by jury for the crimes of
Manslaughter in the First Degree (Count I), and
Reckless Driving (Count II) in Case No. CF2004-317, in the District Court of Comanche
County. The jury returned a verdict of guilty and
recommended as punishment fifty-five (55)
years imprisonment on Count I and ninety (90)
days in the county jail on Count II. The trial
court sentenced accordingly. From this judgment and sentence Wayne Raymond Haston has
Chapel, P.J.; Lumpkin, V.P.J., concur in results; C.
J., concur.
C-2005-843 — Petitioner, Billy Ray Johnson,
entered a negotiated guilty plea and was convicted of Aggravated Assault and Battery, after
former felony conviction in Oklahoma County
District Court case no. CF-2005-1681. He was
sentenced to seven (7) years “to do” with the
Department of Corrections with credit for time
served. Petitioner filed a pro se motion to withdraw his plea by letter, claiming ineffective
assistance of counsel. Following an August 22,
2005 hearing on his motion, at which time Petitioner was represented by counsel, the trial
court denied the same. Petitioner now appeals
from the trial court’s denial of his motion to
withdraw plea. DENIED. Opinion by Lumpkin,
V.P.J.; Chapel, P.J., concur; C. Johnson, J., concur;
A. Johnson, J., concur; Lewis, J., concur.
F-2005-320 — Tony Neal Duncan, Appellant,
was convicted of First Degree Manslaughter in
violation of 21 O.S.2001, § 711 in the District
Court of Pushmataha County, Case No. CF2004-12. The jury assessed punishment at four
(4) years imprisonment, and the trial court sentenced accordingly, suspending the last year of
the four (4) year sentence. The trial court sentenced accordingly. From this judgment and
sentence Tony Neal Duncan has perfected his
appeal. The Judgment and Sentence shall be
REVERSED and this case shall be REMANDED
to the District Court for a NEW TRIAL. Opinion
Vol. 77 — No. 20 — 7/29/2006
by Lewis, J., Chapel, P.J., Concurs; Lumpkin,
V.P.J.; Concurs in Results; C. Johnson, J. Concurs;
A. Johnson, J., Concurs.
C-2005-1262 — On September 7, 2005, David
Eric Rhodabarger, Petitioner, entered a guilty
plea, without a plea agreement, to several
counts in Beckham County District Court Case
Nos. CF-2004-424, CF-2005-107, and CF-2005135 before the Honorable Charles L. Goodwin,
District Judge. The charges and sentences were
as follows: CF-2004-424: 1. Unlawful Possession
with Intent to Distribute the Controlled Dangerous Substance Methamphetamine — fifteen (15)
years. CF-2005-107: 1. Unlawful Possession with
Intent to Distribute the Controlled Dangerous
Substance Methamphetamine — fifteen (15)
years. 2. Unlawful Possession with Intent to Distribute the Controlled Dangerous Substance
Cocaine — fifteen (15) years. 3. Unlawful Possession with Intent to Distribute the Controlled
Dangerous Substance Marijuana — fifteen (15)
years. 4. Unlawful Possession of Drug Paraphernalia — one (1) year county jail. CF-2005-135: 1.
Unlawful Possession the Controlled Dangerous
Substance Methamphetamine — eight (8) years.
2. Unlawful Possession of Drug Paraphernalia
— one (1) year county jail. The crimes were
enhanced with one prior felony conviction. The
sentences in Case Nos. CF-2004-424 and CF2005-107 were ordered to run concurrently with
each other, but consecutively with the sentences
in Case No CF-2005-135 (the two sentences in
CF-2005-135 were ordered to run concurrently
with each other.) The trial court sentenced
David Eric Rhodabarger has perfected his
appeal. the trial court’s decision to deny Rhodabarger’s motion to withdraw pleas is
AFFIRMED and the Application for Writ of Certiorari is DENIED. Opinion by Lewis, J., Chapel,
P.J., concurs; Lumpkin, V.P.J.; concurs; C. Johnson, J. concurs; A. Johnson, J., concurs in results.
F-2005-406 — Bruce Lee Shattuck, Appellant,
was tried by jury and found guilty in the District
Court of Washington County, Case No. CF-2004308 of solicitation to commit murder in the first
degree after former conviction of two or more
felonies. The jury sentenced Appellant to twenty (20) years imprisonment. The trial court sentenced accordingly. From this judgment and
sentence Bruce Lee Shattuck has perfected his
appeal. The Judgment and Sentence of the District Court of Washington County is
Vol. 77 — No. 20 — 7/29/2006
concurs; Lumpkin, V.P.J., concurs; C. Johnson, J.,
RE-2005-372 and RE-2005-373 — Earl Eugene
Skinner, Appellant, appealed to this Court from
an order issued by the Honorable Joe Sam Vassar, District Judge, revoking Appellant’s eight
(8) year suspended sentences in Case Nos. CF2002-99 and CF-2002-171 in the District Court of
Creek County. AFFIRMED. Chapel, P.J., not participating; Lumpkin, V.P.J., concurs in results; C.
Johnson, J., concurs; A. Johnson, J., concurs; and
Lewis, J., concurs.
C-2006-99 — Petitioner William Glenn Looney
was charged in the District Court of Oklahoma
County, Case No. CF-2005-188, with Possession
of a Driver’s License Bearing Photo of Another
(Count I), and Falsely Personating Another
(Count II), both counts After Former Conviction
of Two or More Felonies, and in Case No. CF2005-528 with two counts of Second Degree
Forgery, both counts After Former Conviction of
Two or More Felonies. On December 2, 2005,
three (3) days before the start of trial, Petitioner
entered negotiated guilty pleas to all charges
before the Honorable Susan P. Caswell, District
Judge. Petitioner’s pleas were accepted and he
was sentenced in each of the four counts to ten
(10) years in prison, with four (4) years of each
sentence suspended, said sentences to run concurrently. On December 5, 2005, Petitioner filed
a Motion to Withdraw Guilty Plea. At a hearing
held on January 3, 2006, the trial court denied
the motion to withdraw. The court’s denial of
the motion to withdraw is the subject of this
appeal. The order of the district court denying
Petitioner’s motion to withdraw plea of guilty is
Chapel, P.J., concur; C. Johnson, J., concur; A.
Johnson, J., concur in result; Lewis, J., concur.
F-2005-651 — William Earl Drew, Appellant,
was tried by jury for the crime of Shooting with
Intent to Kill in Case No. CF-2004-4368 in the
District Court of Tulsa County. The jury
as punishment twelve (12) years imprisonment.
judgment and sentence William Earl Drew has
perfected his appeal. The Judgment of the trial
court is AFFIRMED and his sentence is MODIFIED from twelve (12) years to ten (10) years
imprisonment Opinion by C. Johnson, J.;
2173
result; A. Johnson, J., concurs; Lewis, J., concurs.
C-2005-1203 — Petitioner Leonard D. Cravens
aka L.D. Cravens was charged in the District
Court of Blaine County, Case No. CF-2003-36,
with two counts of Performing a Lewd Act in
the Presence of a Minor. On May 12, 2005, four
days before the start of trial, per agreement with
the State, Petitioner entered a plea of nolo contendere to Count II and the State dismissed
Count I. The Honorable Ronald G. Franklin, District Judge, accepted Petitioner’s plea and set
sentencing for August 11, 2005. After entry of
the plea there was a change of counsel for Petitioner. New counsel entered her appearance on
May 25, 2005, and filed a Motion to Withdraw
No Contest Plea. At a hearing held on August
11, 2005, the trial court denied the motion to
withdraw. On October 13, 2005, Petitioner was
sentenced to ten (10) years imprisonment, to be
suspended upon successful completion of the
Sex Offender Treatment Program. On October
24, 2005, Petitioner filed a second Application to
Withdraw Plea and requested an evidentiary
hearing. On November 21, 2005, the trial court
denied the motion without a hearing. The
court’s denials of the two motions to withdraw
are the subject of this appeal. The order of the
district court denying Petitioner’s motion to
withdraw plea of guilty is AFFIRMED. Opinion
by Lumpkin, V.P.J.; Chapel, P.J., concur; C. Johnson, J., concur; A. Johnson, J., concur; Lewis, J.,
concur.
F-2005-700 — Appellant, Harry Oliver West,
was tried by jury and convicted of Driving
While Under The Influence of Alcohol (Count I)
and Driving While License is Canceled/Suspended/Revoked (Count II), all counts After
Former Conviction of Two or More Felonies,
Case No. CF-2003-491 in the District Court of
Creek County. The jury recommended as punishment forty-five (45) years imprisonment and
a ten thousand dollar ($10,000) fine in Count I,
and one year in prison and a five hundred ($500)
dollar fine in Count II. The trial court sentenced
accordingly, ordering the sentences to be served
concurrently. It is from this judgment and sentence that Appellant appeals. The Judgement
and Sentence is REVERSED and REMANDED
for a new trial. Opinion by Lumpkin, V.P.J.;
Chapel, P.J., concurs; C. Johnson, J., concur; A.
Johnson, J., concur; Lewis, J., concur.
2174
F-2005-468 — Rebecca R. Pettit, Appellant,
was tried by jury for the crime of First Degree
Murder, in Case No. CF-2000-230 in the District
Court of Sequoyah County. The jury returned a
verdict of guilty and recommended as punishment Life Imprisonment without Parole. The
trial court sentenced accordingly. From this
judgment and sentence Rebecca R. Pettit has
perfected her appeal. The Judgment and Sentence of the district court is REVERSED and the
case is REMANDED FOR A NEW TRIAL. Opinion by C. Johnson, J.; Chapel, P.J., concurs;
Lumpkin, V.P.J., concurs; A. Johnson, J., concur;
Lewis, J., concurs.
F-2005-639 — Maximiliano Mariscal, Appellant, was tried by jury for the crime of Possession of Cocaine with Intent to Distribute Within
2000 Feet of a School in Case No. CF-2004-473 in
the District Court of Ottawa County. The jury
as punishment forty (40) years imprisonment
and a $200,000 fine. The trial court sentenced
Maximiliano Mariscal has perfected his appeal.
The Judgment and Sentence of the district court
is AFFIRMED, but the case is REMANDED for
correction of the Judgment and Sentence nun pro
tunc. Opinion by C. Johnson, J.; Chapel, P.J. concurs in results; Lumpkin, V.P.J., concurs; A. Johnson, J., concurs; Lewis, J., concurs.
F-2005-107 — Arturo Talamantes, Appellant,
was convicted of Robbery by Force or Fear in
violation of 21 O.S.2001, § 797 in the District
Court of Garfield County, Case No. CF-2003430. The jury assessed punishment at thirty (30)
years imprisonment. The trial court sentenced
Arturo Talamantes has perfected his appeal.
concurs; Lumpkin, V.P.J., concurs in results, C.
Johnson, J., concurs; A. Johnson, J., concurs.
Edwin Dewayne Fry’s suspended sentence in
the District Court of Cimarron County, District
Court Case No. CF-2000-48, is AFFIRMED.
Chapel, P.J., concurs; Lumpkin, V.P.J., concurs;
Lewis, J., concurs.
Vol. 77 — No. 20 — 7/29/2006
F-2005-541 — Jamal Brown, Appellant, was
tried by jury for the crime of First Degree Murder in Case No. CF-2004-70 in the District Court
of Jackson County. The jury returned a verdict of
guilty and recommended as punishment life
imprisonment. The trial court sentenced accordingly. From this judgment and sentence Jamal
Brown has perfected his appeal. AFFIRMED.
Opinion by C. Johnson, J.; Chapel, P.J., concur;
Lumpkin, V.P.J., concur; A. Johnson, J., concur;
Lewis, J., concur.
imprisonment and a $500 fine on each Counts 3
and 4 and ordered sentences to be served consecutively. The trial court sentenced accordingly.
From this judgment and sentence Timothy Mark
Dunivan has perfected his appeal. The Judgment and Sentence as to Counts 3 and 4 (Child
Abuse) is REVERSED WITH INSTRUCTIONS
TO DISMISS. The Judgment and Sentence as to
Counts 1, 2 and 5 (Sexual Abuse of a Minor) is
AFFIRMED. Opinion by C. Johnson, J.; Chapel,
P.J., concurs; Lumpkin, V.P.J., concurs
in results; A. Johnson, J., concurs; Lewis, J.,
concurs.
Robert Troy Gaghins’, suspended sentence in
the District Court of Tulsa County, District Court
Case No. CM-2005-2689, is AFFIRMED. Chapel,
P.J., not participating; Lumpkin, V.P.J., concurs;
Lewis, J., concurs.
Mickey Don Anderson’s, suspended sentence in
the District Court of Jefferson County, District
Court Case No. CF-2000-80, is AFFIRMED.
Chapel, P.J., not participating; Lumpkin, V.P.J.,
concurs; Lewis, J., concurs.
RE 2005-251 — On May 23, 2001, in the District Court of Tulsa County, Case No. CF-2001811, Jerry Lee Mays, Appellant, was sentenced
to a term of ten (10) years imprisonment for Burglary in the Second Degree, After Former Conviction of a Felony. The District Court ordered
all but the first five (5) years of the term suspended under written terms of probation. On
March 3, 2005, the Honorable Rebecca Brett
Nightingale, District Judge, found Appellant
violated his probation and revoked the suspension order in full. Appellant appeals the order of
revocation. AFFIRMED. Chapel, P.J., concurs;
Lumpkin, V.P.J., concurs; C. Johnson, J., concurs;
A. Johnson, J., concurs; Lewis, J., concurs.
F-2005-232 — Timothy Mark Dunivan, Appellant, was tried by jury for the crimes of three
counts of Sexually Abusing a Minor (Counts 1, 2
and 5), and two counts of Child Abuse (Counts
3 and 4) in Case No. CF-2004-437 in the District
fifty (50) years imprisonment and a $500 fine on
each of Counts 1, 2 and 5, and six (6) years
Vol. 77 — No. 20 — 7/29/2006
THE ACCELERATED DOCKET
J-2006-259 — J.A.J., Appellant, was charged as
an adult with First Degree Murder and Conspiracy to Commit First Degree Murder in Case No.
CF-2005-5714 in the District Court of Oklahoma
County. Appellant filed a Motion to Be Certified
as a Juvenile or Youthful Offender, which was
denied by the District Court on March 16, 2006.
From this ruling, Appellant appeals. The District
Court’s ruling is AFFIRMED. Chapel, P.J., dissents; Lumpkin, V.P.J., concurs; C. Johnson, J.,
dissents; A. Johnson, J., concurs; Lewis, J.,
concurs.
RE-2005-316 — Jeremy David Manders,
Appellant, entered a plea of guilty in Ottawa
County District Court, Case No. CF-2000-91 to
Unlawful Possession of Marihuana and was
sentenced to ten (10) years incarceration with all
but four (4) years suspended. Appellant entered
pleas of guilty in Ottawa County District Court,
Case Nos. CF-2003-420 and CF-2003-438 for the
offenses of Omitting to Provide for Minor Child.
Appellant was sentenced to ten (10) years incarceration, with all but the first six (6) months suspended for each case. Subsequently, Appellant’s
suspended sentences were revoked in full and
the sentence in CF-2000-91 was ordered to run
consecutive to the sentences in CF-2003-420 and
CF-2003-438. Appellant appeals the order of the
Honorable Robert G. Haney, District Judge,
Ottawa County District Court. The order of revocation is REVERSED and this matter is
REMANDED to the District Court. Chapel, P.J.,
concurs; Lumpkin, V.P.J., dissent; C. Johnson, J.,
J-2006-399 — The Appellant, C. S. O.,
appealed to this Court from an order entered by
2175
the Honorable Carol Hubbard, Special Judge,
denying Appellant’s motion for certification as a
juvenile or in the alternative as a youthful
offender in Case No. CF-2005-7078 in the District Court of Oklahoma County. AFFIRMED.
Lumpkin, V.P.J., concurs; C. Johnson, J., concurs;
A. Johnson, J., concurs; and Lewis, J., concurs.
COURT OF CIVIL APPEALS
(Division No. 1)
101,637 — J.A. Norris, Petitioner/Appellant,
vs. D.H. White, Respondent/Appellee. Appeal
from the District Court of Tulsa County, Oklahoma. Honorable David C. Youll, Judge. Petitioner/Appellant J. A. Norris (“Appellant”)
seeks review of the trial court’s order denying
her child support arrearage, granting Respondent /Appellee D. H. White (“Appellee”)
motion for alimony arrearage, and imposing
attorney fees on Appellant. Appellee seeks
imposition of attorney fees on appeal. Appellant
and Appellee were married, but divorced after
having one child. Appellant is the child’s mother, works as a physician, was awarded custody
and ordered to pay support alimony. Appellee
was ordered to pay child support in a monthly
amount less than the monthly alimony award.
Each month, Appellant deducted child support
from a check she sent to Appellee but in May
2000, ceased sending payments to Appellee
based upon his 1999 tax records. Appellant had
concluded more child support was owed than
alimony. Conflicting evidence was introduced
as to the existence of an agreement to raise child
support in 2000. The trial court ruled no agreement existed and, alternatively, if an agreement
existed it was unenforceable under Oklahoma
statutes. The trial court granted attorney fees to
Appellee. Upon review of the record and the
law, we AFFIRM the order of the trial court and
deny the requested appeal-related attorney fees.
AFFIRMED. Opinion by Joplin, J.; Bell, P.J.,
concurs, and Hansen, J., concurs in result.
101,732 — (Cons. w/102,135) Turner Roofing
& Sheet Metal, Inc., Plaintiff/Appellant, vs.
Lawana Rike, Defendant/Appellee, Citicorp
Trust Bank, F.S.B., Defendant. Appeal from the
District Court of Tulsa County, Oklahoma. Honorable Russell P. Hass, Judge. In Case No.
101,732, Plaintiff seeks review of the trial court’s
order denying reconsideration of its previous
order dismissing Plaintiff’s claims for breach of
contract and foreclosure of a mechanics’/materialmens’ lien. In Case No. 102,135, Plaintiff
2176
seeks review of the trial court’s post-judgment
order granting attorney’s fees to Defendant.
Defendant filed her Motion to Strike/Motion to
Dismiss with evidentiary materials attached on
October 25. By force of Rule 13(b), Plaintiff had
fifteen days, or until November 9, in which to
respond. However, the trial court granted
Defendant’s Motion to Dismiss on November 5,
before expiration of Plaintiff’s time to respond.
We consequently hold the trial court erred in
summarily disposing of Plaintiff’s claims without affording Plaintiff adequate time to respond.
Considering the evidentiary materials submitted in support of the motion to reconsider which
arguably demonstrate a controversy of material
fact concerning the parties’ alleged “settlement,” we further hold the trial court erred in
denying reconsideration and the request for
hearing. And, until the merits of the claims and
defenses are properly reached, the prevailing
party cannot be determined. REVERSED AND
REMANDED. Opinion by Joplin, J.; Bell, P.J.,
and Hansen, J., concur.
102,213 — BLX, Inc., Plaintiff/Appellant, vs.
Little Bear Resources, LLC, Defendant/
Appellee. Appeal from the District Court of Kay
County, Oklahoma. Honorable Leslie D. Page,
Judge. Appellant (BLX) appeals the trial court’s
summary judgment in favor of Appellee (Little
Bear). Summary judgment is proper when the
evidentiary materials establish that there is no
genuine issue as to any material fact, and that
matter of law. We find material facts remain in
dispute. Consequently, the trial court’s judgment in favor of Defendant is reversed.
REVERSED AND REMANDED. Opinion by
Bell, P.J.; Hansen, J., and Joplin, J., concur.
102,540 — Clinton Thornton and Mary Thornton, Plaintiffs/Appellees, vs. David K. Morris,
Defendant/Appellant, and Grand Lake
Builders, Defendant. Appeal from the District
Court of Delaware County, Oklahoma. Honorable Alicia Littlefield, Trial Judge. Appellees
(Thorntons) sued Appellant (Morris) and his
company, Defendant Grand Lake Builders, in
small claims court for faulty construction. The
trial court granted judgment to the Thorntons
against Morris for $5,970.43. Morris appeals,
contending the trial court erred in granting
judgment against the president of the corporation on a contract of the corporation. The record
contains competent evidence Morris did not
observe legal formalities keeping himself and
the corporation separate. The trial court’s find-
Vol. 77 — No. 20 — 7/29/2006
ing Morris and the company were one entity is
supported by competent evidence. AFFIRMED.
Opinion by Hansen, J.; Bell, P.J., and Joplin, J.,
concur.
102,581 — Cynthia Leatherock, Plaintiff/
Appellant, vs. Albert Leatherock, Defendant/
Appellee. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable
Geary L. Walke, Trial Judge. Appellant (Wife)
appeals from the trial court’s order granting a
motion by Appellee (Husband) to dismiss Wife’s
motion to modify the decree as to support
alimony. Husband’s last support alimony payment was due May 1, 2005. On March 10, 2005,
Husband paid Wife the remaining two installments. On April 8, 2005, Wife filed her motion to
modify. Acting on Wife’s request, the trial court
ordered a hearing on June 1, 2005. Husband contends Wife’s motion was properly dismissed as
a matter of law because as of May 1, 2005, no
support alimony remained to be paid, thus there
was nothing to modify. Wife argues a motion to
modify is timely if the motion is filed on or
before the last day of the period for which such
alimony was ordered. She contends Husband’s
early payment of the last installment due affected her rights to modification of support alimony.
It makes no legal difference that payment of the
last installment had been made at an earlier
time. At the time the trial court here considered
Wife’s April 8th motion to modify, the last
installment, due May 1, 2005, had been satisfied.
The trial court was without authority to modify
the support alimony award. Wife, if not requesting, at least acquiesced in, a hearing date which
would put the modification question beyond the
trial court’s authority. There is nothing in the
record to show she tried to get the modification
completed while the court still had authority to
do so. The order of the trial court is AFFIRMED.
Wife’s request for appellate attorney fees is
DENIED. Opinion by Hansen, J.; Bell, P.J., and
Joplin, J., concur.
103,255 — Mortgage Electronic Registration
Systems, Inc., Plaintiff/Appellee, vs. James
Woodcock and Jennifer Woodcock; MILA, Inc.,
d/b/a Mortgage Investment Lending Associates, Inc.; State of Oklahoma ex rel., Oklahoma
Tax Commission; United States of America ex
rel., Internal Revenue Service, John Doe; Jane
Doe; and IM, Inc., Defendants/Appellants.
Appeal from the District Court of Tulsa County,
Oklahoma. Honorable Jefferson D. Sellers, Trial
Judge. Appellants (Mortgagors) seek review of
the trial court’s order granting summary judgVol. 77 — No. 20 — 7/29/2006
ment in favor of Appellee (Holder) in its action
to collect on a note and foreclose a mortgage. In
moving for summary judgment, a party must
file evidentiary materials showing there is no
substantial controversy as to any material fact.
12 O.S. Supp. 2002, Ch. 2, App. 1, Rule 13(a). A
party opposing the motion must file a statement
of the material facts as to which a genuine issue
exists, and attach to the statement evidentiary
material justifying the opposition to the motion.
Holder submitted evidentiary materials establishing a prima facie case and Mortgagors did not
submit controverting evidence. The trial court
did not err in finding a lack of controversy as to
any material fact and in granting judgment to
Holder as a matter of law. Its judgment is
AFFIRMED. Opinion by Hansen, J.; Bell, P.J.,
and Joplin, J., concur.
99,725 —Samantha M. Wheeler, formerly
Robrahn, Plaintiff/Appellant, vs. Ryan Gene
Robrahn, Defendant/Appellee. Appeal from the
District Court of Adair County, Oklahoma. Honorable Mike Norman, Judge. Mother seeks
review of the trial court’s order refusing to
award her the dependent tax exemptions for
both children of her marriage to Father, complaining that, as custodial parent of the parties’
two children, she is presumptively entitled to
claim the dependent tax exemptions under 26
U.S.C. §152. However, the trial court possessed
the equitable power to award the dependent
exemption to either parent regardless of §152.
Moreover, the record on appeal contains only
the Journal Entry of Judgment memorializing
the trial court’s ruling on Father’s motion to
modify, and we have neither the pleadings nor a
transcript of the hearing on Father’s motion to
modify before us. Absent a record demonstrating the error of which an appellant complains,
we cannot determine whether the trial court
abused its discretion as Mother avers, and we
presume the trial court did not err. AFFIRMED.
Opinion by Joplin, J.; Bell, P.J., and Hansen, J.,
concur.
101,722 — Midstate Traffic Control, Inc., an
Oklahoma Corporation, Plaintiff/Appellee/
Counter-Appellant, vs. Developers Surety and
Indemnity Company, a California Corporation,
Defendant/Appellant/Counter Appellee, and
Cowboy Concrete and Construction, Inc.,
Intervenor/Third-Party Plaintiff/Appellant/
Counter-Appellee, vs. City of Ada, Third-Party
Defendant/Appellee/Counter-Appellant.
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Appeal from the District Court of Pontotoc
County, Oklahoma. Honorable Tom S. Landrith,
Judge. The City of Ada (City) contracted with
Cowboy Concrete (Cowboy), to perform roadway work. Cowboy subcontracted with Midstate. Developers Surety and Indenmity (DSI)
provided the payment bond. City’s contract
required completion within 240 days of the start
date, and final completion within 270 days of
the start date. Both the contract and subcontract
contained $500.00 per day liquidated damages
provisions. After final completion, City assessed
Cowboy a delay penalty of $47,500.00, the
amount City incurred for keeping inspectors on
the project beyond the “extended” substantial
completion date. Cowboy withheld that amount
from its payment to Midstate. Midstate sued DSI
for unpaid subcontract funds. Cowboy intervened and joined City as a third-party defendant, arguing it was entitled to the $47,500.00
withheld as a delay assessment. The trial court
found Midstate was not responsible for any
project delays. It awarded Midstate the full
amount outstanding on its subcontract, plus
18% pre- and post-judgment interest. The court
also held City’s actual damages were only
$39,000.00, and awarded Cowboy $8,500.00 (the
difference between $39,000.00 and the delay
assessment of $47,500.00). Cowboy’s claim for
extended performance damages was denied.
City and Cowboy were ordered to pay their
respective attorney fees and costs. Midstate was
awarded attorney fees. Cowboy and DSI filed a
joint appeal. City and Midstate filed counterappeals. City contends Cowboy failed to satisfy
Oklahoma’s Purchase Order Law, the requirements of the Judgments Against Municipalities
Act (JAMA), and that Cowboy waived all claims
against City by accepting final payment for the
project. City paid Cowboy for all its work, less
the delay assessment. The record contains no
evidence City was without such earmarked
available funds. Thus, competent evidence supports the court’s rejection of City’s Purchase
Order Law argument. As JAMA makes clear,
evidence of City’s financial condition was
mandatory. Thus, the judgment entered against
City is currently a nullity and is reversed and
remanded for further proceedings. The record
contains competent evidence from which the
trial court could correctly reject City’s waiver
claim. City’s demurrer was properly overruled.
The record contains ample evidence from which
the trial court could properly determine Cowboy was responsible for fewer delay days and
responsible for less than the full amount City
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paid to keep inspectors on the project. Cowboy
and DSI assert the court erred in awarding prejudgment interest to Midstate, setting the interest rate for both pre- and post-judgment interest,
and in awarding attorney fees to Midstate.
Because the exact amount of damages due Midstate was not certain until evidence was presented on that issue, we hold the trial court erred in
awarding Midstate pre-judgment interest. In
addition, no provision for interest was included
in either the bond or the subcontract. Accordingly, the court should have awarded post-judgment interest at the rate set forth in 12 O.S. 2001
§727(C). Midstate’s action against DSI on the
payment bond was filed to recover for the material and labor Midstate provided to Cowboy.
Thus, Midstate’s action fell within the scope of
12 O.S. 2001 §936. We find attorney fees were
correctly granted. Midstate contends the court’s
attorney fee award was insufficient. Attorney
fees must bear some rational relationship to the
amount recovered. The trial court did not err in
awarding Midstate $42,508.25 rather than the
$86,500.00 it sought. Regarding the conditions
precedent to Midstate’s liability for liquidated
damages, the subcontract language clearly
required the existence of an agreed schedule.
Liquidated damages could be assessed against
Midstate only if Midstate violated the schedule
and Cowboy was penalized by City for delays
caused by Midstate. The court’s factual finding
that Midstate’s work was completed within a
reasonable length of time is supported by competent evidence. Cowboy’s entitlement to prevailing party attorney fees and costs is mandatory under §936. On remand, the trial court is
directed to allow Cowboy to present evidence of
its reasonable attorney fees and costs, all subject
to Cowboy making the required showing under
JAMA. The reduction of Cowboy’s damages
based on delay assessment was proper. The
assessment represents actual, not liquidated,
damages. There is competent evidence that in
some instances, Cowboy failed to follow the
notice provisions of the contract. The court’s
denial of Cowboy’s claim for extended performance costs is also supported by competent evidence in that Cowboy failed to follow the notice
provisions for seeking additional funds under
the contract for delays allegedly caused by City.
The judgment of the trial court is AFFIRMED IN
PART, REVERSED IN PART AND REMANDED
WITH INSTRUCTIONS. Opinion by Bell, P.J.;
Hansen, J.,concurs in part, dissents in part with
opinion, and Joplin, J., concurs in part, dissents
in part with opinion.
Vol. 77 — No. 20 — 7/29/2006
102,045 — Kristen Renee White, Petitioner/
Appellant, vs. Jonathon Thomas Minton,
Respondent/Appellee. Appeal from the District
Court of Payne County, Oklahoma. Honorable
Michael E. Stano, Judge. Appellant (Mother)
appeals the trial court’s journal entry dismissing
her petition for protective order against
Appellee (Father) and the order denying her
motion for a new trial. Mother alleges the court
erred in refusing to admit her testimony and
reports and testimony of Ms. Kersey, an intake
worker for the Department of Human Services,
and Dr. Yellin, a psychologist, which were based
on hearsay statements made by the parties
daughter, M.T. Mother claims such evidence
was admissible under the residual hearsay
exception at 12 O.S. Supp. 2002 §2804.1 or the
medical diagnosis or treatment records exception at 12 O.S. Supp. 2004 §2803(4). She also
argues Dr. Yellin’s medical conclusion was
admissible under 12 O.S. Supp. 2002 §2703.
Under this record, Mother made no showing
that the circumstances surrounding the statements made by the child had guarantees of
trustworthiness or any other procedural safeguards. To the contrary, the child’s statements
made to her mother were inconsistent from
statements made by the child during the victim
interview conducted by DHS. The requirements
of §2804.1(A) were not met and the trial court
properly excluded the hearsay evidence. Mother
failed to argue the trial court erroneously
excluded Dr. Yellin’s testimony and report
because the child’s statements were given during the course of medical treatment and thus
were excepted from the hearsay rule under
§2803(4). She is precluded from asserting this
allegation of error on appeal. We reject Mother’s
claim the court should have admitted evidence
of Dr. Yellin’s conclusions under §2703. Indisputably, such testimony was premised on the
child’s inadmissible hearsay statements, thus,
we cannot say the trial court’s decision to
exclude this evidence was an abuse of discretion. AFFIRMED. Opinion by Bell, P.J.; Hansen,
J., and Joplin, J., concur.
102,436 — Catherine P. James, Petitioner/
Appellant, vs. David P. James, Respondent/
McClain County, Oklahoma. Honorable Noah
Howard Ewing, Jr., Trial Judge. Wife seeks
review of the court’s order granting the postdecree motion for judgment of Husband. Husband and Wife are horse breeders who divorced
in 2003. The divorce decree awarded three stalVol. 77 — No. 20 — 7/29/2006
lions, including one named “Invitation Only,” to
Husband. The American Quarter Horse Association (AQHA) operates an incentive fund program based on funds generated by a horse’s offspring. When the AQHA made a 2004 incentive
fund payment for Invitation Only to Wife, Husband filed a “Post Decree Motion for Judgment,” seeking a judgment for the amount of
any proceeds of the incentive fund program
flowing from any horse awarded to Husband in
the decree. Wife objected, asserting she was entitled to the incentive fund payment as the “nominator” of the funds pursuant to AQHA rules
and procedures. The decree is ambiguous as to
whether incentive payments from Invitation
Only’s past offspring are part of the right, title,
and interest in Invitation Only awarded to Husband, or whether the payments represented
income earned by Wife after the date the decree
split the parties’ business relationship. The trial
court properly refused to consider extrinsic evidence to resolve the issue. Only the judgment
roll is available to resolve the ambiguity. According to the judgment roll, Wife acquired her interest in Invitation Only during the marriage. Her
interest as past owner was subject to distribution as marital property under the decree, and
was distributed to Husband by the language
granting him all right, title, and interest in Invitation Only. We vacate the order to the extent it
purported to bind AQHA, a nonparty, and otherwise affirm the order because it correctly construed an ambiguity in the divorce decree as a
matter of law. VACATED IN PART AND
AFFIRMED IN PART. Opinion by Hansen, J.;
Bell, P.J., and Joplin, J., concur.
102,532 — Myron Duarte, Plaintiff/Appellant,
vs. Lazy E Arena, Inc., an Oklahoma corporation, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma.
Honorable Barbara Swinton, Judge. Plaintiff
the motion for summary judgment of Defendant
on Plaintiff’s claims to recover actual and punitive damages for the violation of his right of
publicity. In this proceeding, Plaintiff asserts
there exists a controversy of material fact concerning his alleged consent to the use of his likeness, precluding summary relief. The evidentiary materials thus uncontrovertedly demonstrate Plaintiff’s membership in the PRCA as a
“contestant,” his participation as a “contestant”
on the “Xtreme Bulls Tour,” and his express or
implied agreement to the terms and conditions
of the PRCA rules and by-laws at all times rele-
2179
vant to these proceedings. Because the PRCA
provided Defendant with Plaintiff’s photograph
and biographical information which Defendant
published in its program; Plaintiff, as a PRCA
member in accord with PRCA by-laws, consented to the use of his name and photograph in the
promotion and advertisement of both sanctioned events and the sport of rodeo; and Defendant’s program may be viewed as promoting
and advertising both the Defendant’s PRCAsanctioned event and the sport of rodeo, Plaintiff must be deemed to have consented to the use
of his likeness in the present case. AFFIRMED.
concur.
102,533 — Paulo Crimber, Plaintiff/Appellant,
vs. Lazy E Arena, Inc., an Oklahoma corporation, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma.
Honorable Barbara Swinton, Judge. Plaintiff
the motion for summary judgment of Defendant
on Plaintiff’s claims to recover actual and punitive damages for the violation of his right of
publicity. In this proceeding, Plaintiff asserts
there exists a controversy of material fact concerning his alleged consent to the use of his likeness, precluding summary relief. The evidentiary materials thus uncontrovertedly demonstrate Plaintiff’s membership in the PRCA as a
“contestant,” his participation as a “contestant”
on the “Xtreme Bulls Tour,” and his express or
implied agreement to the terms and conditions
of the PRCA rules and by-laws at all times relevant to these proceedings. Because the PRCA
provided Defendant with Plaintiff’s photograph
and biographical information which Defendant
published in its program; Plaintiff, as a PRCA
member in accord with PRCA by-laws, consented to the use of his name and photograph in the
promotion and advertisement of both sanctioned events and the sport of rodeo; and Defendant’s program may be viewed as promoting
and advertising both the Defendant’s PRCAsanctioned event and the sport of rodeo, Plaintiff must be deemed to have consented to the use
of his likeness in the present case. AFFIRMED.
concur.
102,818 — Matthew W. Holmes, Plaintiff/
Appellee, vs. State of Oklahoma, ex rel. Dept. Of
Public Safety, Defendant/Appellant. Appeal
from the District Court of Payne County, Oklahoma. Honorable Robert M. Murphy, Judge.
Appellant (DPS) appeals an award of attorney
2180
fees to Appellee (Holmes) after Holmes’ driver’s
license revocation was overturned. As is clearly
set forth in the text of the statute, an attorney fee
award is available to Holmes under 12 O.S. 2001
§941(B) if the evidence demonstrate DPS’s
actions were “without reasonable basis or [were]
frivolous.” We hold the trial court abused its discretion because there is no evidence in the
record that DPS’s actions were without reasonable basis or frivolous within the meaning of
§941. REVERSED. Opinion by Bell, P.J.; Hansen,
J., and Joplin, J., concur.
100,023 — The Burlington Northern and Santa
Fe Railway Company, Plaintiff/Counterclaim
Defendant/Appellee, vs. Bricktown Grain Elevator Company, Defendant/Counterclaimant,
and Moshe Tal, Defendant/Counterclaimant/
Appellant. Appeal from the District Court of
Nancy L. Coats, Judge. Moshe Tal (Tal) on behalf
of himself individually and Bricktown Grain
Elevator Company (BGE) appealed from several
certified interlocutory orders of the trial court in
a suit brought by Burlington Northern and
Santa Fe Railway Company (Railway) against
BGE and Tal for damages to its railroad track.
Tal is not a licensed attorney. Therefore, the
Supreme Court dismissed BGE as a party appellant because a corporation must be represented
by an attorney. Accordingly, this appeal proceeds as an appeal by Tal only and the rulings of
the trial court with respect to BGE are left undisturbed. Tal’s counterclaims against Railway
remain pending in the trial court. With respect to
Tal individually, we reverse in part and affirm in
part the trial court’s orders and remand this case
for further proceedings. We first address Tal’s
contention the trial court wrongfully refused to
vacate the default judgment against him. The
trial court’s order was exclusively based on Tal’s
failure to file a formal entry of appearance. We
hold the trial court abused its discretion by
refusing to vacate the default judgment against
Tal, where the default was premised solely upon
Tal’s failure to file a pro se entry of appearance.
We also reverse that portion of the following
trial court orders as described: (1) October 25,
2002, Journal Entry of Judgment memorializing
default judgment against Tal; (2) March 24, 2003,
Order granting Railway attorney fees and costs
against Tal; (3) May 6, 2003, Journal Entry of
Judgment denying Tal’s motion to reconsider
the denial of his motion to vacate default judgment and Tal’s objection to the attorney fee
Vol. 77 — No. 20 — 7/29/2006
award; and (4) May 13, 2003, Order denying
Tal’s motion to reconsider the order awarding
attorney fees and costs assessed against Tal.
Regarding Tal’s motion to dismiss based on
claim and issue preclusion, we hold neither doctrine applies and the court correctly denied the
motion to dismiss. We also find no abuse of discretion regarding Tal’s motion for sanctions
against Railway. About five months after the
trial court issued its last substantive order, Tal
made an in camera request that Judge Coates
recuse or disqualify. Judge Coats certified her
previous orders for interlocutory appeal and, by
separate order, granted Tal’s request for recusal.
Tal now argues that all substantive orders
entered prior to the recusal should be declared
void. We refuse to declare the trial court’s orders
invalid. Tal also urges all orders and/or rules
which prevent him from appearing pro se on
behalf of his corporations are unconstitutional.
Tal has failed to demonstrate how such a rule in
any way impairs the rights of his corporation to
constitutional due process. Tal complains about
the Oklahoma Bar Association’s alleged refusal
to immediately investigate/prosecute his grievance against Railway’s counsel. Rule 5.2 of Oklahoma’s Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A, confers upon
the OBA’s General Counsel sufficient discretionary authority to defer investigation of Tal’s
grievance during the pendency of these proceedings. The orders of the trial court are
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED. All trial court rulings
against BGE remain undisturbed. Opinion by
Bell, P.J.; Hansen, J., and Joplin, J., concur.
101,771 — Ralph Lloyd and Donna Lloyd;
Robert Brady and Charlene Brady; Basker Johnson and Bonnie Johnson; Melvin Fuqua and
Shirley Fuqua; Marie Standford; Kathy Phillips;
Tiffany Boes; Eddie Morris; Jim Brewer and
Betty Brewer; Rusty Morgan; Jo A. Cotton; Joyce
Stearsenson; Wayne Traczyk; Virginia Barker;
Deryl Farmer; Cecil Betterton; Sherrie Partain;
Charles Smith and Delene Smith; Melody Agee;
Charles Taylor; and Margaret Messimore, Plaintiffs/Appellees, vs. Chris Vanmeter and
Clarence Vanmeter, Defendants/Appellants.
Appeal from the District Court of Creek County,
Oklahoma. Honorable Joe Sam Vassar, Judge.
Defendants seek review of the trial court’s order
enjoining them from maintaining a manufactured home on a lot in a residential subdivision
as contrary to restrictive covenants covering the
property. In this proceeding, Defendants assert
Vol. 77 — No. 20 — 7/29/2006
the trial court erred as a matter of both fact and
law in the construction and application of the
restrictive covenants. Under the circumstances
of this case, we cannot say the trial court’s judgment to enforce the Addition’s restrictive
covenants, implicitly rejecting Defendants’
assertion of Plaintiffs’ abandonment of the
covenants, stands so contrary to the weight of
the evidence or principles of equity as to warrant our intervention. Read together, the restrictive covenants constitute a limitation on the type
of construction permitted for residences within
the Addition, and allow only a permanent structure, built on site, for use as a human residence
in the Addition. Defendants’ manufactured
home, retaining its capacity to be moved and not
built on site within the Addition, clearly violates
the restrictive covenants of the Addition as we
have construed them. AFFIRMED. Opinion by
Joplin, J.; Bell, P.J., and Hansen, J., concur.
102,583 — Barbara Pereyra, Personal Representative of the Estate of Mary Jeanne Saye,
Plaintiff/Appellant, vs. Winfield Investments,
an Oklahoma Limited Liability Company,
Defendant/Appellee, County Treasurer of Oklahoma County, and the Board of County Commissioners of Oklahoma County, Oklahoma,
Defendants. Appeal from the District Court of
Daniel L. Owens, Judge. Plaintiff/Appellant
Barbara Pereyra, Personal Representative (PR or
Plaintiff) of the Estate of Mary Jeanne Saye
(Decedent), seeks review of the trial court’s
orders granting the motions to dismiss and for
summary judgment of Defendant/Appellee
Winfield Investments, an Oklahoma Limited
Liability Company (Winfield), thereby determining superiority of Defendant’s certificate tax
deed to the claim of Plaintiff as personal representative and heir of Decedent’s estate. There is
no evidence PR paid or tendered all taxes, interest and penalties, costs and expenses at any time
before or after commencement of the present
action, the condition precedent to an action to
avoid a tax deed under 68 O.S. §3141. Further,
§3105 of title 68 is surely intended to prevent the
forced sale of a home owned and occupied by an
individual taxpayer who cannot afford to pay
the accrued property tax because the taxpayer is
disabled and has only minimal income, and we
read nothing in §3105 extending the right to
claim an exemption from forced sale to the personal representative of an estate, who may or
may not possess some ownership interest in the
2181
property subject to tax. AFFIRMED. Opinion by
Joplin, J.; Bell, P.J., and Hansen, J., concur.
102,653 — Philip Kirkland, Petitioner, vs.
American Airlines and American Home Assurance Company and The Workers’ Compensation Court, Respondents. Proceeding to Review
an Order of a Three-Judge Panel of The Workers’
Compensation Court. Claimant seeks review of
an order of a three-judge panel of the Workers’
Compensation Court which granted 22% permanent partial disability to the left shoulder and
5% permanent partial disability to the lumbar
spine. Claimant argues that no competent evidence supports the panel’s findings. Dr. Lee’s
report indicates that Claimant remains at maximum medical improvement with regard to the
left shoulder. Dr. Lee’s report also states “with
regard to the low back, this gentleman is at maximum medical improvement ... [and] does not
require additional or ongoing evaluation or
treatment.” Maximum medical improvement is
a technical phrase meaning no further material
improvement would reasonably be expected
from medical treatment or the passage of time.
The record supports the findings that no future
medical maintenance is needed. We find competent evidence to support the Panel’s decisions.
SUSTAINED. Opinion by Bell, P.J.; Joplin, J., and
Mitchell, J. (sitting by designation), concur.
102,732 — Harold Liddell, Plaintiff/Appellant, vs. Denise Heavner, Cleveland County
Assessor, in her official capacity, and Cleveland
County Board of Equalization, Defendants/
Appellants, and State of Oklahoma, Intervenor/
Cleveland County, Oklahoma. Honorable Tom
A. Lucas, Judge. Appellant (Liddell) filed an
appeal in district court from a decision of the
Cleveland County Board of Equalization. He
claimed Appellee Heavner, in her capacity as
Cleveland County Assessor (Assessor) and the
Cleveland County Board of Equalization
(Board), had systematically and intentionally
undervalued certain real property pursuant to
68 O.S. Supp. 2004 §2817(I). The State of Oklahoma (State), intervened in the action and filed
a motion for partial summary judgment. The
trial court granted partial summary judgment in
favor of State on the basis that §2817(I) is constitutional. Plaintiff voluntarily dismissed his
remaining claims against all the other defendants and appealed. Appellant contends the
trial court erred when it failed to conclude the
disputed language of §2817(I) – which permits
the creation of a different class of property for ad
2182
valorem tax valuation purposes – violates the
“fair cash value” mandate of OKLA. CONST. Art.
10, §8(A). The clear language of Okla. Const.
Art. 10, §8 authorizes a valuation method based
on the “fair cash value for the highest and best
use for which such property was actually used
or was previously classified for use.” This language does not require a valuation method
based on “what the owner could expect to
receive at a fair and voluntary sale.” OKLA.
CONST. Art. 10, §22 clearly authorizes the Legislature to classify property for purposes of taxation and to provide for the valuation of different
classes by different means or methods. Appellant has failed to cite any Oklahoma authority in
support of his contention that §2817(I) violated
his rights under the Equal Protection Clause.
The order of the trial court is AFFIRMED. Opinion by Bell, P.J.; Hansen, J., and Joplin, J., concur.
103,159 — Billie Boucher, Plaintiff/Appellant,
vs. Duncan Regional Hospital, Inc., Defendant/Appellee. Appeal from the District Court
of Stephens County, Oklahoma. Honorable Joe
H. Enos, Trial Judge. In this personal injury
action for medical negligence, Appellant
appeals from the trial court’s summary judgment in favor of Appellee and from the trial
court’s order denying her Motion to Reconsider.
To succeed in her claim of medical negligence,
Appellant would have to show the standard of
care required of the nursing staff employee who
she alleges dropped her leg after Appellant’s
knee surgery, that this duty of care was
breached, and breach of the duty resulted in the
claimed harm. The only medical testimony
going to standard of care and causation is Nurse
Rader’s “Medical Record Summary” of Appellant’s medical records. There is nothing in the
record to show that Nurse Rader is competent to
testify as an expert on the dispositive medical
questions regarding causation. While there is
some authority for Nurse Rader to opine as an
expert on the standard of nursing care, there is
no authority for her to give evidence as to the
cause of long term and permanent effects
allegedly caused by Appellant’s back injury. In
the absence of competent medical expert evidence on those questions, Appellant’s claim
must fail. We do find, however, sufficient competent evidence to create material questions of
fact regarding the limited question of pain and
suffering at the time immediately surrounding
when Appellant’s leg was dropped. The nexus
between dropping of Appellant’s leg and experiencing great pain creates an objective question
Vol. 77 — No. 20 — 7/29/2006
as to injury, however limited. The record contains evidence Appellant had previously experienced back pain and that she had degenerative
changes in her spine before the alleged negligence. Except for the limited matter of pain and
suffering in the time immediately surrounding
Appellant’s leg being dropped, the trial court
acted properly in granting summary judgment
to Appellee. The court’s judgment is vacated as
it relates to that limited pain and suffering, and
is affirmed in all other respects. AFFIRMED IN
PART; REVERSED IN PART AND REMANDED
for further proceedings. Opinion by Hansen, J.;
Bell, P.J., concurs, and Joplin, J., concurs in part,
dissents in part with opinion.
(Division No. 2)
102,417 — Carlos McGee, Petitioner, v. Aspen
Land & Exploration Inc., Compsource Oklahoma, and the Workers’ Compensation Court,
Respondents. Proceeding to Review an Order of
a Three-Judge Panel of the Workers’ Compensation Court, Hon. Richard L. Blanchard, Trial
Judge, affirming the trial court’s order denying
that Claimant sustained a change of condition
for the worse. The trial court found that
Claimant’s MRI in 2004 is essentially the same as
MRIs taken in 1998 and 1999. The earlier MRIs
were taken prior to surgery on Claimant’s back
and knee. Although the trial court might be correct in its conclusion that the findings from the
2004 MRI are essentially the same as the previous ones, the trial court failed to consider that
the 2004 MRI was conducted after Claimant had
surgery on both his knee and his back and after
he had reached maximum medical improvement. The only medical evidence in the record
that considers the fact that the 2004 MRI was
conducted post-surgery is the report of
Claimant’s medical expert which stated that
Claimant has suffered a change of condition for
the worse. Claimant also offered competent lay
testimony that he has sustained a change of condition for the worse. We must reverse the
panel’s affirmance of the trial court’s decision
because there is no competent evidence to support it. The case is remanded to the three-judge
panel with instructions to find that Claimant
sustained a change of condition for the worse
and to remand to the trial court for further proceedings. REVERSED AND REMANDED
WITH INSTRUCTIONS. Opinion from the
Court of Civil Appeals, Division II, by Wiseman,
P.J.; Goodman, J., and Reif, J. (sitting by designation), concur.
Vol. 77 — No. 20 — 7/29/2006
101,960 — Legacy Resources, L.L.C., an Oklahoma Limited Liability Company, Plaintiff/
Appellant, v. Raven Resources, L.L.C., Defendant/Appellee, and IBEX Resources Co., L.L.C.,
JMA Energy Company, L.L.C., Arapaho Land
Company, L.L.C., and Ranger Exploration Company, Defendants. Appeal from the District
Court of Woodward County, Hon. Ray Dean
Linder, Trial Judge. Legacy Resources, L.L.C.
appeals the trial court’s March 2, 2005, and
December 13, 2004, orders granting Raven
Resources, L.L.C. an attorney’s fee and costs
pursuant to the court’s inherent powers. Based
upon the facts and applicable law, we affirm in
part and reverse and remand in part with
instructions. AFFIRMED IN PART AND
REVERSED AND REMANDED IN PART WITH
INSTRUCTIONS. Opinion from Court of Civil
Appeals, Division II, by Goodman, J.; Wiseman,
P.J., and Gabbard, J. (sitting by designation),
concur.
101,761 — Douglas Spitznas, Petitioner/
Applicant, vs. Ron Ward, Director, Oklahoma
Department of Corrections, Respondent/
Appellee. Appeal from order of the District
Court of Oklahoma County, Hon. Vicki L.
Robertson, Trial Judge, dismissing Prisoner’s
petition for writ of mandamus. Prisoner asked
the trial court to order the Director of the Oklahoma Department of Corrections (ODOC) to
return him to the Mack Alford Correctional Center, to return and/or reimburse him for confiscated personal property, and to cease retaliation
against him. Prisoner has no protectable interest
in the place of his incarceration; he has no clear
right to be transferred back to Mack Alford or to
have those personal belongings returned to him
that are not allowed at the institution where he
is currently incarcerated. Furthermore, Prisoner
failed to allege a clear and indisputable legal
duty of ODOC to do the things he asks it to do.
Therefore, Prisoner has failed to meet the
requirements for issuance of the extraordinary
writ of mandamus. AFFIRMED. Opinion from
P.J.; Goodman, J., and Gabbard, J. (sitting by
101,917 (Comp. to No. 101,918) — Brian K.
Danielson, Petitioner/Appellee, v. Gene Codner,
Defendant/Appellant. Appeal from an order of
the District Court of Oklahoma County, Hon.
Patricia G. Parrish, Trial Judge, granting a protective order against Gene Codner. Upon review
2183
of the record, we find that this appeal must be
dismissed because the expiration of the protective order renders the controversy moot. Gene
Codner and his wife hired a private investigator
to investigate their son-in-law just prior to the
time that their daughter filed for a divorce. Gene
Codner signed a contract with the investigator
to have a tracking device installed on the son-inlaw’s vehicle. The son-in-law filed a petition for
a protective order against Gene Codner. The trial
court granted the petition and entered a protective order on the ground of harassment. There is
no dispute that the protective order at issue has
expired. The expiration of that protective order
renders the controversy moot unless it comes
within one of the recognized exceptions to the
mootness doctrine. Gene Codner failed to show
that this matter is capable of repetition or that
there is a broad public interest in allowing the
parent of an adult child to hire a private investigator to track and investigate a son-in-law’s
whereabouts and to direct the investigation
when the daughter has every right to hire such
an investigator herself. DISMISSED. Opinion
from the Court of Civil Appeals, Division II, by
Wiseman, P.J.; Goodman, J., and Rapp, V.C.J.
(sitting by designation), concur.
abouts and to direct the investigation when her
daughter has every right to hire such an investigator herself. DISMISSED. Opinion from the
P.J.; Goodman, J., and Rapp, V.C.J. (sitting by
101,918 (Comp. to No. 101,917) – Brian K.
Danielson, Petitioner/Appellee, v. Nancy Codner, Defendant/Appellant. Appeal from an
order of the District Court of Oklahoma County,
Hon. Patricia G. Parrish, Trial Judge, granting a
protective order against Nancy Codner. Upon
review of the record, we find that this appeal
must be dismissed because the expiration of the
protective order renders the controversy moot.
Nancy Codner and her husband hired a private
investigator to investigate their son-in-law just
prior to the time that their daughter filed for a
divorce. Nancy’s husband signed a contract
with the investigator to have a tracking device
installed on the son-in-law’s vehicle. The son-inlaw filed a petition for a protective order against
Nancy Codner. The trial court granted the petition and entered a protective order on the
ground of harassment. There is no dispute that
the protective order at issue has expired. The
expiration of that protective order renders the
controversy moot unless it comes within one of
the recognized exceptions to the mootness doctrine. Nancy Codner failed to show that this
matter is capable of repetition or that there is a
broad public interest in allowing the parent of
an adult child to hire a private investigator to
track and investigate a son-in-law’s where-
101,558 — L.B. Haley, Inc., Plaintiff/
Appellee, vs. F.W. Haley, Defendant/Appellant.
Appeal from order of the District Court of Oklahoma County, Hon. Vicki L. Robertson, Trial
Judge, entering a permanent injunction against
Defendant and denying his motion for new trial.
Defendant asserted on appeal that the trial court
erred in determining that Plaintiff and Defendant are each entitled to use “Haley” (their surname) in connection with each of their businesses. Defendant asserts that he made “Haley”
famous by his sole efforts for over 30 years in the
floor-covering business. There is nothing in the
record that indicates Plaintiff began using his
surname in connection with the flooring business in a manner that was anything other than
honest and in good faith. Defendant admits that
Plaintiff opened his floor covering business so
that Defendant could later purchase it from him.
The trial court’s decision, which allows each
party to use his surname, is not against the clear
weight of the evidence. AFFIRMED. Opinion
from Court of Civil Appeals, Division II, by
Wiseman, P.J.; Goodman, J., and Gabbard, J. (sitting by designation), concur.
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103,010 — Karen E. Weems, individually and
as Personal Representative of the Estate of Billy
L. Weems, Deceased, Plaintiff/Appellant, v.
Allen Contracting, Inc., an Oklahoma corporation, Defendant/Appellee. Appeal from the District Court of Custer County, Hon. Charles L.
Goodwin, Trial Judge. Karen E. Weems, individually and as Personal Representative of the
Estate of Billy L. Weems, Deceased, appeals the
trial court’s January 6, 2006, order granting
Allen Contracting, Inc.’s motion for summary
judgment. This appeal was assigned to the accelerated docket pursuant to Oklahoma Supreme
Court Rule 1.36(a)(1), 12 O.S.2001 and Supp.
2003, ch. 15, app. 1. Based upon the facts and
applicable law, we affirm. AFFIRMED. Opinion
from Court of Civil Appeals, Division II, by
Goodman, J.; Wiseman, P.J., concurs, and Reif, J.
(sitting by designation), dissents.
101,667 — In the Matter of the Estate Of James
W. Flaherty, Deceased. Reba Marlene Flaherty,
Respondent/Appellant, v. Steven A. Jay,
Vol. 77 — No. 20 — 7/29/2006
Administrator of the Estate of James W. Flaherty,
and
James
Michael
Flaherty,
Petitioners/Appellees. Appeal from an order of
the District Court of Tulsa County, Hon. Kyle B.
Haskins, Trial Judge, enforcing an antenuptial
agreement between Wife, Reba Marlene Flaherty, and the Decedent, James W. Flaherty, and distributing Decedent’s estate to his son according
to the agreement. Wife asserted on appeal that
she and Decedent had abandoned the antenuptial agreement before Decedent’s death.
Although Wife believed Decedent destroyed the
original antenuptial agreement in an effort to
abandon it, no evidence corroborates Wife’s
belief except for the absence of the original.
There was conflicting testimonial evidence on
the issue of abandonment, and the trial court
found Wife’s evidence of abandonment insufficient. Wife failed to carry her burden of showing
that the antenuptial agreement had been abandoned. AFFIRMED. Opinion from the Court of
Civil Appeals, Division II, by Wiseman, P.J.; Reif,
J. (sitting by designation), and Gabbard, J.
102,772 — Oklahoma Environmental, Inc.,
Plaintiff/Appellant, v. Richard Sims and Genesis Environmental Solutions, L.L.C., Defendants/Appellees. Appeal from the District
Court of Garfield County, Hon. John W. Michael,
Trial Judge.
Oklahoma Environmental Inc.
(OEI) appeals two orders of the trial court. The
first order, filed September 9, 2005, granted summary judgment to defendants Richard Sims and
Genesis Environmental Solutions, L.L.C. The
second order, filed November 8, 2005, denied
OEI’s request to amend its petition to add an
additional party to the suit. The appeal was
assigned to the accelerated docket pursuant to
Oklahoma Supreme Court Rule 1.36(a), 12
O.S.2001 and Supp. 2003, ch. 15, app. 1. Based
upon our review of the facts and applicable law,
we reverse both orders and remand for further
proceedings. REVERSED AND REMANDED.
Opinion from Court of Civil Appeals, Division
II, by Goodman, J.; Reif, J. (sitting by designation), concurs, and Wiseman, P.J., dissents.
100,814 (cons. with 101,114) — The Estate of
Jonathon King; Mark King, and Carol Stockham,
individually and as survivors and next of kin to
Jonathon King, deceased, Plaintiffs/Appellees v.
Wagoner County Board of County Commissioners, Defendant/Appellant/Appellee, and
KTUL, L.L.C., Defendant/Appellant/Appellee.
Vol. 77 — No. 20 — 7/29/2006
Appeal from orders of the District Court of Wagoner County, Hon. Bruce Sewell, Trial Judge,
granting judgment to Plaintiffs on a jury verdict
and also judgment against Defendant Wagoner
County and in favor of Defendant KTUL, L.L.C.
KTUL leased a portion of its broadcast transmission tower to Wagoner County, whose sheriff’s
department placed on the tower a metal cabinet
which holds radio communications equipment.
After two deputy sheriffs climbed the tower to
remove part of the equipment for repair, they
improperly replaced the door to the cabinet. The
next day the door came off the cabinet and
knocked Jonathon King (Decedent) from the
tower. Decedent’s estate filed a wrongful death
suit against Wagoner County and KTUL. KTUL
filed a crossclaim against Wagoner County seeking indemnity under a provision in their lease
agreement. The trial court granted summary
judgment in favor of Wagoner County and
against Plaintiffs on the ground that Wagoner
County is exempt from liability under the Governmental Tort Claims Act. The court also granted summary judgment to KTUL on its crossclaim for indemnity against Wagoner County.
Based on the lease agreement between KTUL
and Wagoner County, the court also determined
as a matter of law that Wagoner County was acting as the agent of KTUL and, therefore, any
negligence by Wagoner County would be
imputed to KTUL. We find that the trial court
did not err in granting judgment for contractual
indemnity to KTUL for damages arising from
Wagoner County’s negligence. Nor did the trial
court err in determining that Wagoner County is
not entitled to immunity on KTUL’s claim of
contractual indemnity. The trial court did, however, err in finding the existence of an agency
relationship as a matter of law when there is no
evidence to support a finding that KTUL and
Wagoner County entered into an agency relationship or that KTUL had the right, or actually
exercised the right, to control the actions of Wagoner County other than those actions inherent in
the landlord-tenant relationship. Regarding
KTUL’s appeal, the trial court did not err in
allowing Plaintiffs’ expert to give opinion testimony; nor did the trial court err in overruling
KTUL’s motion for a directed verdict or in denying its request to submit to the jury the issue of
negligence of Decedent’s employer. Nor did the
trial court err in rejecting both KTUL’s claim of
indemnity for its own negligence and its claim
of entitlement to attorney fees incurred in
defending itself against Plaintiffs’ claims of negligence. The judgment against Wagoner County
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and in favor of KTUL for indemnity is affirmed;
to the extent the judgment imputes Wagoner
County’s liability to KTUL, the judgment is
reversed. The judgment against KTUL, as it
relates to KTUL’s own negligence, is affirmed.
AFFIRMED IN PART AND REVERSED IN
PART. Opinion from the Court of Civil Appeals,
Division II, by Wiseman, P.J.; Goodman, J., and
Reif, J. (sitting by designation), concur.
102,306 – S.P. Tollefsen, Plaintiff/Appellant, v.
C.D. Tollefsen, Defendant/Appellee. Appeal
from an Order of the District Court of Tulsa
County, Hon. Mark Barcus, Trial Judge. This is
S.P. Tollefsen’s (Mother) appeal from the trial
court’s June 29, 2005, order reducing Father’s
child support obligation and finding C.D. Tollefsen (Father) not guilty of indirect contempt of
court. Mother contends the trial court lacked
jurisdiction to enter the order while another
appeal arising out of the same litigation was
pending. We affirm. AFFIRMED. Opinion from
Court of Civil Appeals, Division II, by Goodman, J.; Wiseman, P.J., and Fischer, J., concur.
102,076 — Tina Plummer, as mother and next
friend of Kelsey Wederski, and Susan Musgrove,
as mother and next friend of Kimberly Musgrove, Plaintiffs/Appellants, vs. Gadzooks, Inc.,
Tammy Johnston, Andrea Williams, and Amy
Hahn, Defendants/Appellees. Appeal from
order of the District Court of Oklahoma County,
Hon. Carolyn R. Ricks, Trial Judge, granting
summary judgment to Defendants. Parents of
two minor girls sued Gadzooks and three of its
employees after the girls were detained and
searched on suspicion of shoplifting. Summary
adjudication of the claims for intentional infliction of emotional distress was appropriate;
Defendant’s actions of taking the girls to the
stockroom and asking them to show their
underwear to assure they had not shoplifted
swim wear was not so extreme and outrageous
as to permit recovery. Summary adjudication on
the claims of false arrest was also appropriate;
there is no evidence of physical seizure or
restraint, declaration of arrest, manifestation of
intent to take custody, or belief by the minor
girls that they had been arrested. Summary
adjudication of the claims of false imprisonment, as they related to Defendants Johnston
and Hann, was also appropriate as there is no
evidence to support a finding that they participated in the detention, interrogation, or search
of the minor girls. Summary adjudication on the
false imprisonment claims, as they related to
Defendants Gadzooks and Williams, was not
2186
appropriate; the questions of probable cause
and reasonableness present questions for a jury.
Summary adjudication on the claims of slander
was appropriate as to Defendants Johnston and
Hann as there is no evidence that they made any
statements about either minor girl. However,
summary adjudication on the claims of slander
was inappropriate as to Defendants Gadzooks
and Williams; there is a factual dispute over
whether Defendant Williams, in the presence of
a friend of one of the minor girls, accused the
minor girls of stealing bathing suits. AFFIRMED
IN PART, REVERSED IN PART, AND
REMANDED FOR FURTHER PROCEEDINGS.
II, by Wiseman, P.J.; Goodman, J., and Reif, J.
(Division No. 3)
100,235 — Micah D. Hale, Plaintiff/Appellee,
vs. Burl Hawkins and Burl Hawkins Motor
Company, Inc., Defendants/Appellants, and
United Home Insurance Company, Defendant.
Appeal from the District Court of Tulsa County,
Oklahoma. Honorable Ronald L. Shaffer, Trial
Judge. Burl Hawkins and Burl Hawkins Motor
Company, Inc. (collectively, Defendants) appeal
a trial court judgment in favor of Micah Hale on
his claim for breach of contract and conversion.
The trial court’s judgment was based upon a
jury verdict rendered in Hale’s favor against
Defendants on both theories and awarded
breach of contract damages of $12,325 and conversion damages of $6,000. We modify the trial
court’s judgment to eliminate any recovery for
conversion because Hale was not entitled to
recover for the same damages twice under alternate theories. In addition, we conclude the damages for breach of contract could not exceed
$8,500 based on the evidence presented to the
jury. Accordingly, we affirm the judgment as
modified, conditioned upon Hale agreeing on
remand to a remittitur reducing his judgment to
that amount, otherwise a new trial is required.
AFFIRMED AS MODIFIED SUBJECT TO
REMITTITUR. Opinion by Adams, J.; Mitchell,
P.J., and Buettner, C.J., concur.
102,839 — Calvin McPherson, Petitioner, v.
Bath Unlimited, Inc., and/or Gamco, Masco
Corporation (own risk) and the Workers’ Compensation Court, Respondents. Proceeding to
Review an Order of the Workers’ Compensation
Court. Honorable Ellen C. Edwards, Judge.
Claimant seeks review of a ‘Workers’ Compensation Court order finding the aggravation of a
Vol. 77 — No. 20 — 7/29/2006
pre-existing condition, denying TTD benefits,
but requiring Employer to provide Claimant
with reasonable and necessary medical treatment. On June 16, 2005, Dr. Young, Employer’s
expert, performed a physical examination and
took an extensive history on Claimant. It was his
opinion that Claimant’s complaints were due to
Claimant’s 1999 injury, that any period of temporary total disability had long since ended, and
there was no need for medical care or continuing medical maintenance. Claimant contends
Dr. Young did not have available for review the
records of two doctors, a physical therapy/rehabilitation facility and the 2005 MRI report, therefore Dr. Young’s report lacked probative value.
“The probative value of evidence presents a fact
question to the trial court, which may accept or
reject medical evidence, in whole or in part, as .
. . [it] deems appropriate.” This Court will not
reweigh the evidence. The order appealed is
supported by competent evidence and is SUSTAINED as modified. Opinion by Mitchell, P.J.;
Adams, J., and Buettner, C.J.,concur.
102,877 — In the Matter of K.U., M.U. and
T.U., Alleged Deprived Children. State of Oklahoma, Plaintiff/Appellee vs. Jonathan Ussery,
Defendant/Appellant. Appeal from the District
Court of Cleveland County, Oklahoma. Honorable Stephen W. Bonner, Judge. Defendant/
Appellant Jonathan Ussery (Father) appeals the
trial court’s judgment adjudicating deprived his
three minor children, K.U., M.U., and T.U. (collectively, Children). Plaintiff/Appellee State of
Oklahoma filed a petition alleging Father failed
to provide Children with proper care of parental
supervision. Specifically, the State alleged Father
sexually abused his six-year-old daughter, K.U.
At trial, the trial judge questioned K.U. in camera, on the record, and found her available to testify. Nevertheless, the trial court held that
requiring the child to testify in open court
would be too traumatic. The trial court also did
not allow K.U. to testify by an alternative
method. After hearing the testimony of the DHS
social worker, who first interviewed K.U., the
trial judge determined the totality of the circumstances provided sufficient indicia of reliability
so as to render K.U.’s extra-judicial statements
inherently trustworthy. Based on these findings,
the trial judge admitted the social worker’s testimony regarding K.U.’s out-of-court statements
under 12 O.S. Supp. 2004 §2803.1, the statutory
hearsay exception applicable to statements by
minor children describing physical or sexual
abuse in criminal or juvenile proceedings.
Father appeals, arguing the trial court erred in
applying §2803.1; in refusing to permit Father to
Vol. 77 — No. 20 — 7/29/2006
call M.U. and T.U. as witnesses; and in determining the evidence was sufficient to find Children deprived. We hold that the trial court erred
in its application of §2803.1, and reverse and
remand for further proceedings. REVERSED
AND REMANDED. Opinion by Buettner, C.J.;
Adams, J., concurs, and Mitchell, P.J., dissents.
102,113 — Fraternal Order of Police, Lodge
142 and Tom Hankins, Plaintiff/Appellants, v.
City of Perkins, Oklahoma, Defendant/
Payne County, Oklahoma. Honorable Donald L.
Worthington, Judge. Plaintiffs/Appellants the
Fraternal Order of Police, Lodge 142 (Police
Lodge) and Tom Hankins appeal from and order
of the district court granting summary judgment
to Defendant/appellee City of Perkins. City terminated Hankins as a police officer because he
could not fulfill his duties after he was banned
from using the dispatching and jail facilities of
the Iowa Tribe with which City contracted for
services.The arbitrator found City did not have
just cause to terminate Hankins, and ordered
City to reinstate Hankins. The Police Lodge and
Hankins filed an action to enforce the award in
district court, and City filed a counterclaim to
vacate the award. We affirm. The award did not
draw its essence from the CBA because it
imposed additional requirements on the City,
and the decision was based on consideration of
equity and fairness instead of the terms of the
CBA. The arbitrator’s decision was based on his
interpretation of the City’s agreements with the
Tribe (rather than the CBA) and his decision that
those agreements and the Tribe’s actions were
not commercially reasonable. AFFIRMED.
Opinion by Mitchell, P.J., Adams, J., concurs;
and Hansen, J., (sitting by designation), dissents.
99,872 — James S. Matthews, Jr.,
Plaintiff/Appellant, v. Jerry Franklin, Defendant, and Leora Johnson, Movant/Appellee.
Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Roma M. McElwee, Judge. Attorney James S. Matthews, Jr.
appeals from an award of $1,836.00 in attorney
fees and $300 in costs awarded to Leora Johnson
after she successfully appealed the trial court’s
denial of her motion to vacate a default judgment. The right to appeal-related attorney fees
only exists if authorized by the appellate court,
and if statutory authority exists for their award
in the trial court. When a conditional award of
2187
appellate attorney fees is made, the prevailing
party requesting the fees has the burden of making a timely showing in the trial court that they
have satisfied the requirements of the statute or
contract for the attorney fees requested.
Although the trial court stated in its ruling that
Johnson was the prevailing party, the journal
entry of judgment did not identify any statutory
or other legal basis for the award. We find there
was no statutory basis for the award of fees
against Johnson. Bad faith or vexatious conduct
pursuant to City Nat’l Bank & Trust Co. of Oklahoma City v. Owens, 1977 OK 86, 565 P.2d 4, cannot be the basis for the award of appellate fees,
which must be based on statutory authority.
Thus, the award of attorney fees is reversed.
Regarding costs, the Supreme Court had already
ruled that only $200 was allowed in costs. Further, the Court held specifically that the $100
district court fee for assembling the record on
appeal was not allowed as an appellate cost.
Matthews is limited to $200 in costs.
REVERSED. Opinion by Mitchell, P.J.; Adams, J.,
and Buettner, C.J., concur.
100,788 — Shannon O’Brian Skaggs, Defendant/Appellant, v. William C. Bisby, Appellee,
and State of Oklahoma, Plaintiff. Appeal from
the District Court of Garfield County, Oklahoma. Honorable Ronald G. Franklin, Judge.
The facts in this case are undisputed. Appellee
Bisby delivered possession of an All Terrain
Vehicle (ATV) to Del City Cycle with the intent
that Del City Cycle sell the ATV on his behalf.
There was no written agreement between Bisby
and Del City Cycle. Joseph Maddox purchased
the ATV from Del City Cycle with a personal
check written on a closed checking account. The
bank dishonored Maddox’s check. Maddox sold
and conveyed for value all of his rights in the
ATV to Aaron Jordan. Jordan then sold and conveyed for value all of his rights in the vehicle to
Appellant Skaggs. Skaggs was in peaceable possession and full ownership of the ATV when the
Enid Police Department seized the vehicle. The
trial court relied on In re 1973 John Deere 4030
Tractor, 1991 OK 79, 816 P.2d 1126, and 12-A O.S.
2001 §2-403(1) in reaching its conclusion. The
court determined there is no distinction between
the ownership interest obtained by a thief and
that acquired by a buyer whose check is dishonored. The court reasoned that because title to
stolen property remains with the legal owner, a
bona fide purchaser from a thief obtains nothing. The court ordered the ATV returned to
Bisby. Skaggs appeals. We find the trial court
2188
misread both John Deere and §2-403(1) in concluding Maddox did not have the power to
transfer title to the ATV to Skaggs, a good-faith
purchaser for value. We reverse the trial court’s
order returning the ATV to Bisby. REVERSED.
Opinion by Mitchell, P.J.; Adams, J., and
Buettner, C.J., concur.
101,362 — Erica Anne Dorwart, Plaintiff/
Appellant, v. James D. Sicking, Jr., Defendant/Appellee. Appeal from the District Court
of Tulsa County, Oklahoma. Honorable Kyle B.
Haskins, Judge. Appellant (Wife) appeals from
the trial court’s award of attorney fees and costs
to Appellee (Husband) in connection with a
child-support-related contempt and license-revocation proceeding Husband initiated against
Wife. Husband appeals the court’s award of
attorney fees and costs to Wife for her successful
pursuit of expanded visitation rights with the
parties’ daughter. Husband failed to file a briefin-chief or any other pleadings advancing his
cause on appeal. We therefore consider Husband to have abandoned his appeal of the attorney-fee award to Wife, and affirm the trial
court’s ruling. Husband also neglected to file an
answer brief in response to Wife’s brief-in-chief
on appeal. As a result, Wife’s appeal stands submitted on her brief alone. We find Wife’s brief
reasonably supports her allegations of error that
Husband was not entitled to an award of attorney fees because he was not a “prevailing party”
within the meaning of 43 O.S. 2001 §111.1
because he did not obtain an affirmative judgment on his motion for contempt citation and
license revocation. We therefore reverse the trial
court’s judgment awarding attorney fees and
costs to Husband. AFFIRMED IN PART AND
REVERSED IN PART. Opinion by Mitchell, P.J.;
Adams, J., and Buettner, C.J., concur.
101,881 — Joe James, Plaintiff/Appellant, v.
First National Bank, South Dakota, and Abbott
& Associates, Defendants/Appellees. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Daniel L. Owens, Judge.
Appellant appeals from an order granting summary judgment of Appellees and dismissing
Appellant’s claims of accord and satisfaction,
wrongful garnishment, abuse of process, and
emotional distress. Appellant also appeals a separate order of the trial court denying his requested refund of a $350 jury-trial fee collected pursuant to 28 O.S. Supp. 2004 §152.1(A)(7). Appellant made his own brief statement of undisputed material facts but failed to controvert any of
the proposed undisputed facts Appellees set
Vol. 77 — No. 20 — 7/29/2006
forth in their motion. Accordingly, Appellees’
material facts supported by evidentiary material
are deemed admitted for purpose of summary
judgment. Appellees must nonetheless demonstrate they are entitled to judgment as a matter
of law. We agree with the trial court that
Appellees have successfully shown by uncontroverted facts and evidentiary material they are
entitled to judgment as a matter of law on
Appellant’s accord-and-satisfaction claim. Our
affirmance of the trial court’s dismissal of the
accord-and-satisfaction claim negates Appellant’s argument regarding his wrongful garnishment claim. Appellant’s requested refund of the
$350 jury-trial fee is not refundable even if jury
services are not utilized. We affirm the trial
court’s denial of Plaintiff’s refund request.
AFFIRMED. Opinion by Mitchell, P.J.; Adams, J.,
and Buettner, C.J., concur.
101,958 — Lois Y. Yon, Plaintiff/Appellant, v.
The City of Oklahoma City, and U.S. Filtering
Operating
Services,
Inc.,
Defendants/
Appellees, and Oklahoma City Water Utilities
Trust, a public trust, Defendant. Appeal from the
District Court of Cleveland County, Oklahoma.
Honorable William C. Hetherington, Jr., Trial
Judge. Lois Yon (Plaintiff) appeals a trial court
order granting summary judgment in favor of
the City of Oklahoma City (City) and U.S. Filter
Operating Services, Inc. (US Filter)(collectively
Defendants), on Plaintiff’s action against City
and Oklahoma City Water Utilities Trust for
inverse condemnation and against US Filter for
trespass. We conclude the evidentiary material
presented to the trial court demonstrate questions of material fact concerning Plaintiff’s
claims against Defendants and reverse the trial
court’s order. REVERSED AND REMANDED.
Opinion by Adams, J.; Buettner, C.J., and
Mitchell, P.J., concur.
102,105 — Lake Tenkiller Harbor Owners
Association, Plaintiff/Appellant, v. Chero Trust,
Kim Price, Trustee, Defendant/Appellee, and
Jack A. Robertson and Doris J. Robertson,
Defendants. Appeal from the District Court of
Cherokee County, Oklahoma. Honorable Mark
L. Dobbins, Trial Judge. Plaintiff/Appellant
(Association) appeals a trial court judgment in
favor of Defendant/Appellee (Trust) quieting
Trust’s title to certain property located in the
Lake Tenkiller Harbor Subdivision. The order
prevented Association from enforcing a lien it
claimed it had for unpaid annual assessments
due Association from previous owners. Because
we conclude Association perfected no lien
Vol. 77 — No. 20 — 7/29/2006
which could survive the tax sale from which
Trust received its tax deed, we affirm.
AFFIRMED. Opinion by Adams, J.; Buettner,
C.J., and Mitchell, P.J., concur.
102,616 — Sara Lynn Brown and Sherry Salas,
Plaintiffs/Appellants, v. Tom Ashbrook and
Martha Ann Ashbrook, Defendants/Appellees.
Appeal from the District Court of Stephens
County, Oklahoma. Honorable Joe H. Enos, Trial
Judge. Plaintiffs Sara Brown and Sherry Salas
appeal a trial court order which sustained a
Motion to Dismiss their action against Defendants Tom and Martha Ashbrook. According to
Plaintiffs, they were damaged as a result of a
one-car accident which occurred while Brown
was driving after having consumed alcohol at
Defendants’ home in a social setting. Brown was
under eighteen at the time of the incident. Plaintiffs contend Defendants violated 37 O.S.2001 §
537(A)(1), which prohibits “knowingly . . . deliver[ing], or furnish[ing] alcoholic beverages to
any person under twenty-one (21) years of age.”
Defendants’ motion was based on the argument
that as “social hosts” they were not civilly liable
for injuries sustained in the accident. The trial
court agreed, and based on the current state of
“dram shop” liability recognized by the Oklahoma Supreme Court, we affirm that decision.
The facts shown by the evidentiary material presented to the trial court, considered in the light
most favorable to Plaintiffs, and all reasonable
inferences from those facts are consistent only
with judgment for Defendants. The trial court’s
judgment is affirmed. AFFIRMED. Opinion
by Adams, J.; Buettner, C.J., and Mitchell, P.J.,
concur.
102,754 — Wright’s Electric, Heating & Air,
Inc., Plaintiff/Appellant, v. Richard & Rosalie
Waskow,
Defendants/Third
Party
Plaintiffs/Appellees, v. David Stratton, d/b/a
TMS Construction, Third Party Defendant.
Appeal from the District Court of Sequoyah
County, Oklahoma. Honorable John C. Garrett,
Trial Judge. Wright’s Electric, Heating & Air, Inc.
(Plaintiff) appeals a trial court judgment in favor
of Richard Waskow and his wife, Rosalie
Waskow (Defendants) on Plaintiff’s claim for
breach of contract. Plaintiff does not appeal the
trial court’s prior partial summary judgment
order in favor of Defendants, finding that Plaintiff’s mechanic’s and materialmen’s lien filed
against their real property was null and void.
We conclude the trial court’s judgment is supported by competent evidence and affirm the
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judgment. AFFIRMED. Opinion by Adams, J.;
Buettner, C.J., and Mitchell, P.J., concur.
102,112 — Lorri Michelle Austin, Claimant/
Petitioner, v. AT&T Wireless Services, Inc., Insurance Company of the State of Pennsylvania, and
the Workers’ Compensation Court, Respondents. Proceeding to Review an order of a ThreeJudge Panel of the Workers’ Compensation
Court. Claimant was an employee of AT&T
Wireless, Inc. (Employer). Upon arriving at her
workplace Claimant parked in an area reserved
for customers and employees of Jordan & Associates, a neighboring business. Upon being
instructed to move her car, she slipped and fell,
hurting her ankle, tail-bone and back. At the
hospital where she was examined later that day,
Claimant filled out a questionnaire on which she
reported having fallen in Jordan & Associates’
parking lot. The Workers’ Compensation Court
found Claimant’s injuries did not arise out of
and in the course of her employment. Claimant
appeals. There is competent evidence showing
that the area of the parking lot where Claimant
parked her car was not part of AT&T’s premises.
It was labeled as reserved for Jordan & Associates. In addition, far from acquiescing in its use
by employees, AT&T specifically prohibited its
workers from parking there. The actions of Jordan & Associates in marking Austin’s car to be
towed further indicates that portion of the lot
was under the control of Jordan & Associates,
not AT&T. The order finding Claimant’s injury is
not compensable is SUSTAINED. Opinion by
Mitchell, P.J.; Adams, J., and Buettner, C.J.,
concur.
102,368 — Travis Morgan and Rick Graves,
Plaintiffs/Appellants, v. American Airlines, Inc.,
Defendant/Appellee. Appeal from the District
Court of Tulsa County, Oklahoma. Honorable
Gregory J. Frizzell, Judge. Appellants appeal
from an order granting summary judgment to
Appellee. In 1987, Appellee initiated the
“IdeAAs in Action Suggestion Program,” under
which employees who submitted cost-saving
proposals were eligible to receive credits
redeemable for gift certificates, merchandise, or
cash. The program was governed by certain regulations established by Appellee. In the aftermath of the September 11, 2001 terrorist attacks,
Appellee suspended the program indefinitely.
In March, 2002, Appellee announced the permanent termination of the program. Appellants
filed this action alleging fraud and breach of
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contract in connection with Appellee’s administration of the program. Our analysis of the
undisputed facts leads us to conclude Appellee
satisfied its obligations to Appellants under the
program. Appellants admit that, prior to the
suspension of the program Appellee adequately
rewarded them for suggestions and were able to
redeem the credits so awarded. By exercising its
express authority to suspend and then terminate
the program, Appellee was no longer obligated
to make further reward payments to Appellants.
There was no breach of contract. Regarding
Appellants’ fraud claim, the undisputed evidence shows that Appellee actually terminated
the program and paid Appellants for all the savings accrued prior to the suspension of the program, so there was no misrepresentation upon
which to have a fraud claim. The order of the
trial court is AFFIRMED. Opinion by Mitchell,
P.J.; Adams, J., and Buettner, C.J., concur.
102,389 — Royce G. Caskey, Plaintiff/
Appellee, v. Patrick B. Keegan, Defendant/
Appellant. Appeal from the District Court of
Tulsa County, Oklahoma. Honorable Jefferson
D. Sellers, Trial Judge. Patrick Keegan appeals
from the trial court’s order denying his Request
for an Evidentiary Hearing and Amended
Motion for Reconsideration of the trial court’s
grant of summary judgment in favor of Royce
Caskey on his petition for breach of contract.
Because our review of the record reveals disputed issues of material facts which preclude summary judgment in this matter, we reverse the
trial court’s order, and the case is remanded for
further proceedings. REVERSED AND
REMANDED. Opinion by Adams, J.; Buettner,
100,388
—
Gena
Lynn
Patterson,
Petitioner/Appellee, v. Gregory Lynn Patterson,
Respondent/Appellant. Appeal from the District Court of Pottawatomie County, Oklahoma.
Honorable John D. Gardner, Judge. In this
divorce proceeding, Husband appeals from the
orders requiring him to pay support alimony
and establishing the value of the parties’ marital
residence. Because no transcript or narrative
statement was included in the record, our
review is confined to the docket sheet, the documents filed of record, and the facts to which
both parties agree. Since the parties disagree on
the evidence presented at trial and there is an
insufficient appellate record, we will not presume the trial court abused its discretion by set-
Vol. 77 — No. 20 — 7/29/2006
ting the value of the marital home at $28,000.00.
Husband also contends Wife did not specifically
request support alimony in her petition. Wife
requested “such other just and equitable relief to
which Petitioner is entitled, as the pleadings and
facts sustain,” which was sufficient for the court
to award support alimony. AFFIRMED. Opinion
by Mitchell, P.J.; Adams, J., and Buettner, C.J.,
concur.
100,559 — Gerri Dawn Thomas and Alex
Nicole Thomas, a Minor, by and through her
Father, Guardian, and Next Friend, Jay Thomas,
Plaintiffs/Appellants, v. Bayerische Motoren
Werke Aktiengesellschaft (BMW AG), and BMW
of North America, icn., Defendants/Appellees,
and Jackie Cooper Imports, Inc., Defendant.
Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Noma D. Gurich,
Judge. On October 4, 1993, Gerri Thomas was
driving her 1992 BMW 325i when she collided
head-on and side slapped the passenger side of
a Lincoln that had run a stop sign. The most
grievous injury that she sustained from the accident was a life-altering severe brain trauma.
Thomas alleged that her airbag deployed late
causing her head to be directly in the path of the
airbag. She claimed that absent a defect, the
airbag would have been fully inflated before the
occupant reached the deployment zone. The
case was tried to a jury during November 2003,
which returned a verdict in favor of BMW. We
affirm. AFFIRMED. Opinion by Buettner, C.J.;
Adams, J., dissents with separate opinion, and
Mitchell, P.J., concurs.
101,789 — Mortgage Electronic Registration
Systems, Inc., Plaintiff/Appellee, v. Mark
Crutchfield, Defendant/Appellant, and Jane
Doe, his spouse, if married; and Occupants of
the Premises, Defendants. Appeal from the District Court of Oklahoma County, Oklahoma.
Honorable David M. Harbour, Judge. Mortgage
Electronic Registration Systems, Inc. (MERS)
brought an in rem action July 30, 2002, to foreclose the mortgage on a house located in Oklahoma City. MERS attempted personal service on
Mark Crutchfield, as record owner, by certified
mail, return receipt requested, with the “restricted delivery” fee paid (but not stamped “restricted delivery”) and sent to a Brooklyn, New York
address. The green return receipt card bore an
illegible signature. Crutchfield did not answer
the lawsuit and a default judgment was entered
against him November 1, 2002 for $91,933.59
plus interest at 9.125%. Crutchfield claimed he
did not sign the green card and that he did not
Vol. 77 — No. 20 — 7/29/2006
receive notice of the lawsuit. He filed a Petition
to Vacate the default judgment September 23,
2003 which the trial court denied. Crutchfield’s
Motion to Reconsider was also denied. We hold
that the Oklahoma County District Court did
not have personal jurisdiction over Crutchfield
because personal service was not properly effectuated. Therefore, we vacate the default judgment and remand with directions to proceed in
a manner consistent with this opinion. VACATED AND REMANDED. Opinion by Buettner,
C.J.; Adams, J., and Mitchell, P.J., concur.
101,850 — In Re Marriage of Tamara Renee
Possehl, Petitioner/Appellee, and Christopher
James Possehl, Respondent/Appellant. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Larry Shaw, Trial Judge.
Respondent filed two separate appeals, consolidated prior to briefing by the Oklahoma
Supreme Court. He claims error in (1) the trial
court’s decision in the marital dissolution action
resulting in a decree entered after a trial on the
merits and (2) a subsequent trial court order
modifying visitation. HELD: Respondent has
not preserved any arguments for review concerning the decree. As to the modification order,
the trial court heard credible evidence that the
parties’ minor child had demonstrated significant and serious problems since starting school
which could reasonably be attributed to stress
related to moving back and forth for visitation
between Petitioner’s home and Respondent’s
home in alternate weeks as provided for in the
decree. The trial court’s conclusion that Petitioner had demonstrated a change in circumstances
and that modification of visitation was in the
best interest of the child is not against the clear
weight of the evidence. The modification order
is AFFIRMED. Opinion by Adams, J.; Buettner,
102,253 — Donald Garrett, Plaintiff/Appellant, v. Oklahoma Panhandle State University,
Defendant/Appellee. Appeal from the District
Court of Payne County, Oklahoma. Honorable
Robert M. Murphy, Jr., Judge. On December 13,
2002, Donald Garrett filed a petition in Dallas
County, Texas, alleging Oklahoma Panhandle
State University negligently failed to maintain
his basketball statistics for the academic year
(basketball season) 1998-1999, by losing or
destroying them; tortiously interfered with his
business and contractual relationships with
potential employers by failing to report to the
NCAA his performance statistics; and breached
an implied contract whereby in exchange for his
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participation in Panhandle State’s men’s basketball program, Panhandle State would maintain
his statistics and report them to the NCAA. He
claimed actual and punitive damages because of
Panhandle State’s breaches of duty and contract.
He served the Secretary of State of Texas who
forwarded by certified mail January 2, 2003, a
copy of the petition to Panhandle State’s interim
president with return receipt requested. The
receipt was signed by the interim president’s
agent and received in the Secretary of State’s
office January 7, 2003. Panhandle State did not
answer the lawsuit, and a default judgment was
taken against it in the District Court of Dallas
County, Texas for $2,500,000 in actual damages
and $500,000 in punitive damages, plus pre- and
post judgment interest. Garrett thereafter filed
his judgment in Oklahoma County pursuant to
the Uniform Enforcement of Foreign Judgments
Act, 12 O.S.2001 §719 et seq. February 20, 2004.
The Board of Regents for Oklahoma State University and the Oklahoma Agricultural and
Mechanical Colleges filed a Motion to Transfer,
or in the alternative, Motion to Vacate, on the
ground that Texas never acquired personal jurisdiction over the correct part. The Motion to
Transfer was granted and the matter was heard
in Payne County, the situs for venue of the
Board of Regents. The parties were permitted to
file supplemental briefs and the court heard oral
argument. It then vacated the Texas judgment.
We affirm. AFFIRMED. Opinion by Buettner,
C.J.; Adams, J., and Mitchell, P.J., concur.
102,888 — Donald Bowers, Petitioner, v. Glen
Eagle Apartments, Jessie L. Webber, Jr., CNA
Insurance Group, and the Workers’ Compensation Court, Respondents. Proceeding to Review
an Order of the Workers’ Compensation Court.
Honorable Kenton W. Fulton, Trial Judge. Petitioner Donald Bowers appeals from the Workers’ Compensation Court’s Order denying him
additional permanent partial disability for the
loss of his left eye. The trial court held that
because Bowers had previously been awarded
100% PPD for the loss of use of his left eye, he
was not entitled to additional PPD benefits for
the physical loss of that eye. On de novo review,
we find Bowers was not entitled to PPD compensation for the anatomical loss of his eye in
addition to the 100% PPD benefits he received
for the loss of use of his eye. We further find no
support for Bowers’s claim for additional PPD
benefits based on the amendment of 85 O.S.
§22(3) since his original injury. We therefore sustain the order from which Bowers appeals. SUS2192
TAINED. Opinion by Buettner, C.J.; Adams, J.,
and Mitchell, P.J., concur.
(Division No. 4)
101,699 — Jim Mullin and Gayle Mullin, Husband and Wife, Plaintiffs/Appellees, v. David
Wilkie and Vicki Wilkie, Husband and Wife,
Defendants/Appellants. Appeal from an Order
of the District Court of Adair County, Hon. A. J.
Henshaw, Jr., Trial Judge. The trial court defendants, David Wilkie and Vicki Wilkie (Wilkie),
appeal the trial court’s refusal to set aside the
trial court judgment in favor of the plaintiffs, Jim
Mullin and Gayle Mullin (Mullin), quieting title
and determining a property boundary line.
Mullin, on June 20, 2002, filed this action against
Wilkie. Wilkie did not file an answer when due,
or at any time prior to entry of the judgment
against them. Nevertheless, according to statements in transcripts in the appellate record, the
parties’s representations in their appellate
briefs, and notations on the district court docket
sheet, the case was set several times for hearings
or trial. The relevant trial date for this appeal
was one set for July 3, 2003, even though no
answer had been filed. The appellate record contains a “Court Minute” reflecting the outcome of
the July 3, 2003 court date. The minute is signed
by the district court judge and contains the style
of the case and the appearances and reads: Parties appear with Attorneys and agree that
Defendant will have survey within sixty (60)
days (9-1-02). If no survey, then the Court will
adopt Plaintiff’s survey, hear testimony, and the
Court to view property and make decision. Trial
set for September 9, 2003 at 9:00 a.m. Other than
some comments at a hearing on May 4, 2004,
nothing in the record reveals what may have
transpired on September 9, 2003. The court
docket sheet has entries dated September 10,
2003, showing a motion to continue and a court
order, but no other specific information. The
comments on May 4, 2004, indicate that the case
was continued to November 12, 2003, for trial.
The gist of Wilkie’s complaint is that he did not
receive a trial and that the Order was obtained
prematurely before November 12, 2003, and also
while a motion for continuance was pending
based upon his attorney’s announced attendance at the Oklahoma Bar Convention. The
Order that denied the motion to vacate appears
in the record only as an exhibit to the original
and amended petitions-in-error. The ruling
denied the motion to vacate on three grounds,
two of which are relevant here. The court ruled
Vol. 77 — No. 20 — 7/29/2006
that the motion had been filed more than thirty
days after entry of the Order sought to be vacated. The trial court further ruled that the parties
had made an agreement at the July 2003 hearing,
approved by the court, that Wilkie would provide a survey within sixty days or the Mullin
survey would be adopted as the boundary line if
he failed to do so. Wilkie argues here that
Mullin’s counsel obtained the judgment two
days before the case was set for trial and thus by
irregularity under 12 O.S.2001, §1031(3).
Mullin’s response is that the filing stamp date is
in error. It appears from the transcripts of the
hearings that the order was in fact obtained on
the November 12th date rather than the date
shown by the file stamp. The gist of Wilkie’s
case is that he was denied a trial on the merits.
This Court holds that the trial court’s conclusion
that the parties had an agreement that if Wilkie
failed to produce a survey then the disputed
boundary would be fixed by the Mullin’s survey
is not against the clear weight of the evidence.
Last, Wilkie argues that the November 12, 2003
Order was entered wrongly because a motion to
continue was pending. The granting of continuance is within sound discretion of trial court and
refusal to grant continuance does not constitute
reversible error unless abuse of discretion is
shown. Circumstances show only that the continuance was for the convenience of the attorney
who would be absent for the Bar convention.
The convention date is publicized and ought to
be a date known to counsel well before two days
prior to the trial date in this case. Counsel has a
duty to inform the court in a timely manner. The
trial court did not abuse its discretion in proceeding to judgment. AFFIRMED. Opinion from
Court of Civil Appeals, Division IV, by Rapp,
V.C.J.; Gabbard, P.J., and Reif J., concur.
101,548 — In the Matter of the Estate of
Thomas T. McFarland, Jr., Deceased. Thomas
Thad McFarland, Sr., Plaintiff/Appellant, v.
Patricia D. McFarland, Individually and as Personal Representative of the Estate of Thomas T.
McFarland, Jr., Deceased, Defendant/Appellee.
Appeal from Order of the District Court of
McCurtain County, Hon. Don Ed Payne, Trial
Judge, denying Plaintiff’s action to cancel two
deeds obtained by his now-deceased son,
allegedly by fraud and undue influence. We cannot conclude that the trial court’s decision holding that there was no fraud, coercion, and undue
influence was clearly against the weight of the
evidence. AFFIRMED. Opinion from Court of
Civil Appeals, Division IV, by Rapp, V.C.J.; Reif,
Vol. 77 — No. 20 — 7/29/2006
Acting P.J., and Goodman, J. (sitting by
102,050 — Raymond McCormick and Donita
McCormick, Husband and Wife, Plaintiffs/
Appellants, v. Royce A. Hinkle, Jr., M.D., and
Freda T. Hinkle, Husband and Wife, Defendants/Appellees. Appeal from an Order of the
District Court of Oklahoma County, Hon. Bryan
C. Dixon, Trial Judge. The trial court plaintiffs,
Raymond McCormick and Donita McCormick
(McCormicks) appeal a judgment entered after
nonjury trial in favor of the trial court defendants, Royce A. Hinkle, Jr., M.D. and Freda T.
Hinkle (Hinkles). Hinkles and McCormicks
agreed in a written contract that McCormicks
would purchase the Hinkles original residence
for $265,000.00 with a down payment of approximately $88,000.00, payable partly by an offset
for work and materials furnished by Mr.
McCormick for the Hinkles’ new residence, and
the balance evidenced by a promissory note
payable in installment for five years with a single balloon payment at the end of the five year
period, and secured by a mortgage. The agreement also provided that McCormicks had the
opportunity to inspect the property and accepted it in its then condition except for a septic system, that Hinkles would repair. The agreement
also provided that Hinkles “agree to have
Grandfather privileges in Foxmoor Addition.”
The initial closing was postponed for mutual
reasons as the Hinkles’ residence was not ready
and McCormick did not have the balance of the
down payment in cash. Several weeks later
McCormick was permitted to take possession of
the residence even though the entire initial payment had not been made. Undisputed testimony
at trial disclosed McCormick took some seventeen months to complete the down payment, but
that they were then current in the installments.
Hinkles have never delivered a deed or abstract
and McCormicks have never signed a note and
mortgage. McCormicks filed their lawsuit in
Oklahoma County in July 2003, setting out two
causes of action. The petition alleges that all parties are residents of Oklahoma County, which
Hinkles’ answer specifically denied. The appellate record does not show any plea raising jurisdiction or venue and the pretrial order specifically states that there is no objection to jurisdiction. The first cause of action is on the written
contract. McCormicks alleged that Hinkles were
obligated to deliver a deed and abstract, but
failed to do so, and as a result damages were
2193
sustained. McCormicks asked to be restored to
their pre-contract position and for return of
money paid plus the expenditures for the
improvements they made, less a rental for the
premises. Hinkles disputed both the basis for
liability and the amount and nature of claimed
damages. McCormicks’ second cause of action
alleged that the parties had an oral contract
whereby Hinkles agreed to plat the acreage and
grandfather the residence they purchased into
the platted subdivision. Hinkles denied any
fraudulent acts or the existence of any additional agreements other than the written contract.
After a non-jury trial the court entered judgment for Hinkles, finding that McCormicks had
not met their burden of proof. McCormicks,
who brought this lawsuit in Oklahoma County,
now assert that the trial court did not have jurisdiction because the real property that was the
subject of the parties’ contract is in Cleveland
County. McCormicks’ argument confuses jurisdiction with venue. The primary reason for
rejecting this proposition is that this is a multi
claim action sounding in contract, equity, and
tort and not a case for recovery of real property
or one involving any of the other types of claims
mentions in Section 131. This Court concludes,
from a review of the record and the totality of
the facts and circumstances, that McCormicks’
primary action, apart from the delivery of the
deed and abstract, is one for recovery of money.
Title to the residence is not in dispute. To the
extent that any part of any of McCormicks’
claims may be considered one for specific performance of a contract to sell real estate, 12
O.S.2001, § 132 allows the action to be brought
where the defendants may be served.
McCormicks had to show a contractual obligation on the part of Hinkles to deliver an abstract
and a deed, a breach of the obligation.
McCormicks must also show resultant damages
to entitle them to compensation in addition to
or as an alternative to specific performance.
This Court, after review of the record, concludes
that the trial court’s conclusion that
McCormicks have not proven a claim for damages under this claim is supported by competent evidence. Fraud supports the equitable
relief of reformation. However, the settled rule
is that the proof, in order to justify the reformation of a contract, must be full, clear, unequivocal and convincing. Fraud also is a basis for
rescission of a contract. The burden of proof of
fraud in an equity case is the same as that of
fraud in a law case. This Court cannot conclude
that the trial court’s judgment is against the
2194
clear weight of the evidence. Thus, all fraud and
fraud based claims must fail and the judgment
of the trial court is affirmed in this respect.
However, McCormicks did establish a right to
have an abstract and a deed. At the same time,
they have an obligation to execute the note and
mortgage to secure Hinkles in the sale of the
realty. Therefore, the judgment is modified to
provide that Hinkles shall provide an abstract
of title certified to within forty-five days after
August 10, 2000, and covering the tract
described on Page 1 of Plaintiff’s Exhibit 11 and
they shall do so within forty-five days after the
filing of the mandate. Hinkles shall at the same
time provide a warranty deed to McCormicks
and McCormicks shall simultaneously in delivery execute a mortgage securing the note. In the
event the parties are unable to agree as to the
amount of the note and the terms of the mortgage, the trial court, after hearing, shall make
the determinations for the parties. AFFIRMED
AS MODIFIED. Opinion from Court of Civil
Appeals, Division IV, by Rapp, V.C.J.; Gabbard,
P.J., concurs, and Reif, J., concurs in part,
dissents in part.
102,184 — Rhonda Gayle Thomas, Plaintiff/Appellant, v. Bryan Henry Thomas, Defendant/Appellee. Appeal from an Order of the
District Court of Oklahoma County, Hon. Geary
L. Walke, Trial Judge. The trial court plaintiff,
Rhonda Gayle Thomas (Mother), appeals an
order denying her “motion to reconsider” the
trial court’s judgment awarding custody of the
parties’ child to the trial court defendant, Bryan
Henry Thomas (Father). The modified decree
also established terms of visitation, which,
other than the challenge to the change of custody, is not appealed, and fixed child support,
which Mother claims is incorrectly calculated
by omitting an income item for Father. The parties divorced in July 1997 pursuant to an agreed
decree of divorce. The decree provided that the
parties would have joint custody of their child.
Although no separate joint custody plan
appears in the record, the decree provides
extensively for the parties’s relationship as joint
custody parents. The visitation schedule refers
to period of custody as opposed to visitation.
On May 5, 2003, Mother formally notified
Father of her intent to move to Florida. Father
filed a formal objection on May 30, 2003. After a
hearing in July 2003, the trial court denied the
relocation to Florida. The record does not reflect
any appeal from that order or that any timely
post-journal entry motion was filed which
Vol. 77 — No. 20 — 7/29/2006
would extend the appeal time. On August 1,
2003, Mother served a second notice that she
intended to relocate to Broken Arrow, Oklahoma. Father filed an objection to this notice,
essentially for the same reasons as his objection
to the Florida relocation. After a hearing, the
relocation was authorized, pending trial on the
merits of the custody modification motions and
the Court expressly continued in force the joint
custody arrangement. A lengthy trial produced
testimony and exhibits relating to the relative
strengths and weaknesses of both parents, as
well as the benefits and lack of benefits to the
child that each party concluded followed from
disallowing their respective positions. Witnesses included the parties, an investigator, a child
therapist, relatives and former relatives, and
friends of Father. The trial court summed up the
conclusions reached from the evidence and
decided that custody should be awarded to
Father with appropriate visitation for Mother.
Child support was calculated. Mother filed her
motion to reconsider which was denied. This
Court holds that Mother’s post-trial motion to
reconsider is, and was in legal effect a motion
for new trial. Mother’s position, on appeal, is
that, in fact, they did not have a joint custody
arrangement, so that the proper standard for
modification is the child’s best interest coupled
with the Gibbons requirement for a showing of a
permanent, substantial and material change of
circumstances which adversely affects the child.
If the parties had a joint custody arrangement
and it was to be terminated, then the trial court
proceeds as if no custody decision had been
made. The trial court’s divorce decree and two
post-decree orders suffice to characterize the
custody provisions as joint custody. In addition,
the doctrine of judicial estoppel precludes
Mother from arguing now that no joint custody
plan actually existed. The parties effectively
presented the trial court with two broad issues:
(a) termination of a joint custody plan and
determination of which parent will then have
custody; and (b) Mother’s relocation and
Father’s objection. As to the former, in large
part, Mother’s appeal is premised upon her
contention here that the parties did not have a
joint custody arrangement. This Court rejected
that premise, so any conclusions based upon
that premise are also rejected. The basis for
establishing custody of the child is to decide
what is in the best interests of the physical,
mental, and moral welfare of the child. The trial
court’s conclusions addressed by Mother have
not been shown to be against the clear weight of
Vol. 77 — No. 20 — 7/29/2006
the evidence. Mother asserts that the trial court
“made several findings in its letter ruling that
were not supported by the evidence. This contention lacks specificity and authority necessary
not only for appellate consideration, but also to
demonstrate error. This Court cannot conclude
from a review of the record that the trial court’s
decision terminating the joint custody order
and awarding sole custody to Father is against
the weight of the evidence or contrary to law.
Mother argues here that 43 O.S. Supp. 2005,
§ 112.3 unconstitutionally restricts her right to
relocate to Florida. Mother did not preserve this
issue in her “motion to reconsider,” treated here
as a motion for new trial, and thus the issue is
not preserved for appeal. Moreover, the order
denying this relocation was filed February 20,
2004, and no appeal was taken at that time. The
trial court’s findings and analysis fully recognized Mother’s right to relocate (a different
relocation had been approved previously) and
examined the matter in terms of the interests of
all parties giving preference to the child’s best
interest. Moreover, the decision of the custodial
parent to move is not the dispositive issue in
modification proceedings. Rather, the focus is
on the fitness of the custodial parent and the
potential that the child will be placed at risk of
real and specific harm while living at the new
location. If the parent is fit and there is no evidence of prejudice to the child, the law, as set
out by the Oklahoma Supreme Court, clearly
places the decision to relocate with the parent.
Two other of Mother’s arguments also were not
preserved for review in her post-trial motion.
The record does not contain an application for
trial related attorney fees conforming to the
requirements for such applications. This Court
notes that Mother, an attorney, represented herself in the trial. The Oklahoma Supreme Court
has imposed three universal requirements that
an attorney seeking fees for self-representation
must establish. Mother did not follow this procedure here. She had not shown any error on
this issue. Mother’s claim of child support likewise fails. Mother seeks attorney fees in this
appeal. This Court also finds that Mother has
not shown that she should be awarded appealrelated attorney fees and this Court denies her
request for the fees. AFFIRMED. Opinion from
Court of Civil Appeals, Division IV, by Rapp,
V.C.J.; Gabbard, P.J., and Reif, J., concur.
102,251 — In the Matter of the Appeal of Creative Educational Media Corporation, Inc.
d/b/a Oasis Network Radio, Inc. Creative Edu-
2195
cational Media Corporation, Inc. d/b/a Oasis
Network Radio, Inc., Plaintiff/Appellee, v.
Wagoner County Board of Adjustment, Defendant/Appellant, and Marc Philips, Bruce Stepp,
and Robert McBratney, Trustee, Intervenors.
Appeal from Order of the District Court of Wagoner County, Hon. David Nelson, Trial Judge,
reversing a decision by the Wagoner County
Board of Adjustment that denied a conditional
use permit to Plaintiff to construct and operate
a 1,250-foot radio tower upon land owned by
Plaintiff and zoned for agricultural use. The site
requirements, which were relied upon by the
Board of Adjustment in denying the permit,
were not shown to have been approved by the
Wagoner County Board of County Commissioners; therefore, the trial court was correct in
its finding that the requirements may not be
valid or enforceable. Even assuming that the
requirements are valid, however, they clearly
state that they are intended to apply only to cellular or wireless PCS towers, and not to radio
towers. Therefore, the trial court’s order is
AFFIRMED. Memorandum Opinion from
Court of Civil Appeals, Division IV, by
Gabbard, P.J.; Rapp, V.C.J., and Reif, J., concur.
103,109 — Century Martial Art Supply, Inc.,
Plaintiff/Appellant, v. Bushido.com, Inc., a
Delaware corporation; World Black Belt, Inc., a
Delaware corporation; Worldblackbelt, Inc., a
Delaware corporation; Bob Wall, an individual,
Defendants/Appellees. Appeal from an Order
of the District Court of Oklahoma County, Hon.
Vicki L. Robertson, Trial Judge, sustaining
defendant’s, Bushido.com, motion to dismiss
Century’s amended petition in this breach of
contract action. Century alleges trial court error
in sustaining Bushido’s motion to dismiss.
Bushido argued in the motion that the trial
court should dismiss this action for three reasons: 1) there is another lawsuit pending in California; 2) Bushido.com, Inc. is not a viable entity; and 3) in the alternative, if the trial court
finds Bushido.com, Inc. is a viable entity, the
action should be dismissed under the doctrine
of forum non conveniens. Pursuant to Title 12 O.S.
Supp. 2005, § 2012(B)(8), a defendant may file a
motion to dismiss interposing the existence of
pending litigation as an impediment to continuing with the present litigation. Under Section
2012(B)(8), it is necessary that both actions have
the same causes of action as well as the same
parties. Here, there is neither identity of parties
nor claims. Thus, the trial court erred in dismissing this action based on the pending Cali-
2196
fornia litigation. Bushido also argued the trial
court should dismiss the Oklahoma litigation
per the doctrine of forum non conveniens. Bushido wholly failed to address the factors the court
must consider in making a determination based
on forum non conveniens. Thus, the record is
without evidentiary support of the trial court’s
dismissal based on forum non conveniens. This
Court finds the trial court abused its discretion
in dismissing this action grounded upon forum
non conveniens. Finally, Bushido argues the trial
court should dismiss the Oklahoma litigation
because the defendant, Bushido.com, Inc., is not
a viable corporation. This Court finds the trial
court erred in sustaining Bushido’s motion to
dismiss under this argument. Based on a review
of the record and applicable law, this Court
finds the trial court erred in sustaining Bushido.com, Inc.’s motion to dismiss. REVERSED
AND REMANDED WITH INSTRUCTIONS.
IV, by Rapp, V.C.J.; Gabbard, P.J., and Reif, J.,
concur.
103,217 — Darrell Ellis, Gary Pennington,
John Taylor, James Wolfe, Larry Chaney, Bobby
Williams and Arley Duncan, Plaintiffs/Appellants, v. James M. Brown, Sr., Clinton Johnson,
Richard L. Dugger, Susan B. Loving, Lynnell
Harkins and Terry Jenks, Members and
Employees of the Oklahoma Pardon & Parole
Board, Defendants/Appellees. Appeal from an
Order of the District Court of Oklahoma County, Hon. Noma D. Gurich, Trial Judge. The trial
court plaintiffs, Darrell Ellis, Gary Pennington,
John Taylor, James Wolfe, Larry Chaney, Bobby
Williams, and Arley Duncan (collectively Plaintiffs), appeal an order sustaining a motion to
dismiss or alternatively motion for summary
judgment in favor of the trial court defendants,
James M. Brown, Sr., Clinton Johnson, Richard
L. Dugger, Susan B. Loving, Lynnell Harkins,
and Terry Jenks, members and employees of the
Oklahoma Pardon & Parole Board (collectively
Board). Plaintiffs are inmates in custody of the
Oklahoma Department of Corrections. All
except Turner are serving life sentences for murder convictions. Turner has a sentence of fifty
years for assault and battery with a dangerous
weapon. All Plaintiffs were convicted prior to
1998. In this action, Plaintiffs sought declaratory relief, injunction, and damages premised
upon their interpretation of 57 O.S. Supp. 2005,
§ 322.7(A)(1), (C), (D) and (H). Based upon
§ 322.7, each Plaintiff had been considered for
parole in late 2004 or the first part of 2005. None
Vol. 77 — No. 20 — 7/29/2006
received a parole and each was rescheduled for
reconsideration three years afterward. Plaintiffs
claim that the provisions of Section 332.7(H)
limit the Board’s parole review to the conduct
and record during incarceration and that any
other facts may not be considered. The premises of the claim are: (a) that the statute provides
exclusive criteria; (2) they have a liberty interest
under the parole statute; and (3) consideration
of additional information violates their constitutional rights to Due Process and imposes
application of ex post facto laws. Next, Plaintiffs
claim that the two-stage process under Section
332.7(C) also violates these same constitutional
rights. Last, Plaintiffs claim that victims’
protests and prosecutors’ protests to parole are
illegal because the protests involve matters
other than the conduct and record of the individual since incarceration. The first premise of
Plaintiffs’ case is that the “record and conduct”
review since incarceration is exclusive. This
premise fails. The plain and ordinary reading of
the language of the statute, § 332.7(H), establishes that “conduct and record” is not exclusive. The “record and conduct” consideration is
“a basis” but not the sole basis for Board review.
A second premise in this action is that Plaintiffs
have a liberty interest based upon the parole
statute that must be afforded due process. This
question has been decided and Plaintiffs have
no such interest. Phillips v. Williams, 1980 OK 25,
608 P.2d 1131. Last, Plaintiffs maintain that the
parole statute and Board procedures amount to
an ex post facto law. Plaintiffs contention has
been rejected in Henderson v. Scott, 260 F.3d 1213
(10th Cir. 2001). Simply stated, Plaintiffs’ sentences are not and have not been increased by
the statute under consideration. Plaintiffs’ claim
for damages presumes that the Plaintiffs have a
claim at all. As held here they do not, so the
claim for damages likewise fails. AFFIRMED.
IV, by Rapp, V.C.J.; Reif, J., and Goodman,
Acting P.J. (sitting by designation), concur.
102,545 — Beverly Gugello, as Personal Representative of the Estate of Eileen Horn,
Deceased, Plaintiff/Appellee, vs. Select Specialty Hospital-Tulsa, Inc., Defendant/Appellant.
Appeal from the Order of the District Court of
Tulsa County, Hon. David L. Peterson, Trial
Judge, vacating its earlier dismissal of a wrongful death lawsuit filed by Plaintiff. After Plaintiff failed to issue summons within the time
period specified by District Court Rule 9(a), the
Vol. 77 — No. 20 — 7/29/2006
trial court dismissed her action without prior
notice. Notice of the dismissal order was never
mailed to Plaintiff, as required by 12 O.S.2001 §
696.2(B). Therefore, the trial court’s “term-time”
power, under 12 O.S.2001 § 1031.1, to vacate the
dismissal order, had not commenced when
Plaintiff filed her motion to vacate more than 18
months after the Rule 9(a) dismissal order was
filed. The trial court’s term-time power to
vacate its own orders is virtually unlimited, and
exceptional circumstances are not required to
exercise discretion in favor of vacating a dismissal. We find the trial court did not abuse its
discretion in favor of vacating a dismissal here.
therefore, its order is affirmed. AFFIRMED
AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil
Appeals, Division IV, by Gabbard, P.J., Rapp,
V.C.J.; and Reif, J., concur.
102,458 — Western Farmers Electric Cooperative, of Anadarko, Oklahoma, a Corporation,
Plaintiff/Appellee, v. Joe Heim, Defendant,
Appellant. Appeal from Order of the District
Court of Love County, Hon. Charles E. Roberts,
Trial Judge. In a condemnation action brought
by the trial court plaintiff Western Farmers Electric Cooperative (WFC), the trial court defendant, Joe Heim (Heim), appeals a judgment sustaining a demurrer to his evidence and denying
his motion to dismiss after a bench trial of his
challenge to the taking. WFC is an electric cooperative owned by the State’s many distribution
electric cooperatives. WFC generates electricity
and transmits it to its owners, the distribution
electric cooperatives, which, in turn sell the
energy directly to electricity consumers. Red
River Valley Rural Electric Cooperative (Red
River) is one such owner-distributor cooperative. The Chickasaw Nation (Nation) and
approximately 180 other customers purchase
electricity from Red River through the same
substation. The Nation has a gambling casino
that involves a substantial increase in electrical
energy requirements. The Nation contracted
with Red River to provide the expected
increased electrical need. In order to meet the
casino’s electric load requirement, Red River
must upgrade its facilities to increase its capacity. Red River constructed a new substation to
receive, from WFC, increased electrical capacity.
WFC’s role is to generate and transmit the electricity to Red River at Red River’s substation.
The WFC transmission line to the substation
will cross Heim’s property. When Heim refused
2197
to sell an easement, WFC adopted a Resolution
of Necessity and filed this condemnation action.
Commissioners were appointed and returned
their report. Heim filed his challenge to the
necessity and also to whether a public purpose
was involved. At the hearing, WFC introduced
its Resolution of Necessity as its case in chief.
Heim based his challenge to the necessity of the
taking upon his contention that the taking was
neither reasonable, nor economic or efficient,
and that WFC abused its discretion. WFC presented its Resolution of Necessity. In addition,
through cross-examination of Heim’s witnesses,
WFC presented evidence showing that WFC
had considered various options in deciding
upon the contested route. Heim’s assertion that
the taking is not for a public use is predicated
upon the fact that the Nation agreed to pay substantially all of the cost, including the easement
acquisition costs, for the new transmission line
and new substation. In addition, testimony disclosed that the project would not be undertaken
but for the power demand of the Nation for its
casino. Heim concludes from the evidence that
the project is for the benefit of a single customer,
the Nation, and thus is not a taking for a public
use. WFC responds that its customer is Red
River and that, in that vicinity, Red River serves
not only the Nation but also additional customers and potentially future customers. Moreover, according to WFC the number of ultimate
customers does not determine whether the condemnation is for a public purpose. WFC has the
initial burden to produce evidence to show that
the taking is necessary. WFC met its burden as a
matter of law by introduction of the Resolution
of Necessity. The burden proof, with its components, then shifted to Heim, as a matter of law,
to demonstrate a basis for finding that the taking lacks the requisite necessity. The trial court
judgment that he failed to prove his case is supported by competent evidence. The determination of the character of the condemner’s use of
property to be condemned is a judicial question
and WFC met its burden by introduction of the
Resolution of Necessity. The burden of proof
shifted to Heim to demonstrate that the proposed use is not a public use. The trial court
judgment that he failed to prove his case is supported by competent evidence. Therefore, the
judgment of the trial court is affirmed.
AFFIRMED. Opinion from Court of Civil
Appeals, Division IV, by Rapp, V.C.J.; Reif,
J., and Goodman, J. (sitting by designation),
concur.
2198
102,776 — Sooner State Optical, Inc., and
Compsource Oklahoma, Petitioners, vs. Wayne
Blackburn 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, granting a request by Claimant to reopen
for change of condition for the worse. Claimant
presented ample competent and lay evidence to
show that problems manifested in his right ring
and left long fingers were delayed; that the
need for medical attention to those fingers did
not occur until after an earlier hearing (which
resulted in an adjudication of compensable
injury); and that as found by the three-judge
panel, the injury is part of a progressive worsening related to and caused by Claimant’s original work-related injury. We therefore reject
Employer’s argument that the claim is barred
by res judicata. SUSTAINED. Opinion from
Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, V.C.J., and Reif, J., concur.
102,727— Pam Wilson, Claimant/Petitioner, vs.
Catoosa Public Schools and The Workers’ Compensation Court, Respondents. Proceeding to
Review an Order of a Three-Judge Panel of the
Workers’ Compensation Court, Hon. Kenton W.
Fulton, Trial Judge, affirming the workers’ compensation trial court’s order denying benefits
on grounds that Claimant failed to prove she
sustained a work-related injury. Claimant suffered a stroke while employed as a school cafeteria worker for Employer. It was undisputed
that Claimant’s stroke occurred after she sustained a spontaneous left internal carotid artery
dissection, and it was more likely than not that
the dissection occurred when she was engaged
in lifting a “heavy object” on the day prior to
the stroke. Because the nature of Claimant’s
employment was such that she regularly had to
lift cooking utensils and other materials heavier
than those encountered in everyday life, we
find she met the requirements of the statute in
effect at the time of her injury, 85 O.S. Supp.
2003 §3(12)(b), which permitted workers’ compensation benefits “only if resultant from stress
in excess of that experienced by a person in the
conduct of everyday living.” We therefore find
the order of the workers’ compensation court
panel is not supported by competent evidence.
REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals,
Division IV, by Gabbard, P.J.; Rapp, V.C.J.,. and
Reif, J., concur.
Vol. 77 — No. 20 — 7/29/2006
ORDERS DENYING REHEARING
(Division No. 1)
102,555 — Geyer Brothers Equipment Co.,
Plaintiff/Appellant, vs. Standard Resources,
L.L. C., an Oklahoma Limited Liability Corporation, and Don W. Bullard, an individual, and
ARVEST BANK, formerly known as Oklahoma
National Bank, a national Banking association,
Sohio Petroleum, L.L.C., and GBP, L.P., and
Richard Gouin, and Standard Energy, L.L.C., an
Oklahoma Limited Liability Company, and
Verna O. Smith, an individual, and Verna O.
Smith, L.L.C., an Oklahoma Limited Liability
Company, Defendants/Appellees. Defendants/
Appellee’s Petition for Rehearing filed June 1,
2006 is DENIED.
Petition for Rehearing, the Court DENIES
Respondent’s Petition.
101,773 — Dennis Dancer, Plaintiff/Appellant, v. State of Oklahoma, ex rel. Oklahoma
Department of Public Safety and Merit Protection Commission, Defendants/Appellees. The
Appellant’s Petition for Rehearing is DENIED.
(Division No. 3)
102,013 — Theresa Sollars, Plaintiff/Appellee,
v. Healthcare Recoveries, Shelly Russell and
Blue Advantage Administrators of Arkansas,
Defendants/Appellants, and Integris Southwest Medical Center, Defendant. Plaintiff/
Appellee’s Petition for Rehearing is DENIED.
(Division No. 4)
102,545 — Beverly Gugello, as Personal Representative of the Estate of Eileen Horn,
Deceased, Plaintiff/Appellee, vs. Select Specialty Hospital-Tulsa, Inc., Defendant/Appellant.
Appeal from Order of the District Court of
Tulsa County, Hon. David L. Peterson, Trial
Judge, vacating its earlier dismissal of a
wrongful death lawsuit filed by Plaintiff. After
Plaintiff failed to issue summons within the
time period specified by District Court Rule
9(a), the trial court dismissed her action without
prior notice. Notice of the dismissal order was
never mailed to Plaintiff, as required by 12
O.S.2001 § 696.2(B). Therefore, the trial court’s
“term-time” power, under 12 O.S.2001 § 1031.1,
to vacate the dismissal order, had not commenced when Plaintiff filed her motion to
vacate more than 18 months after the Rule 9(a)
dismissal order was filed. The trial court’s termtime power to vacate its own orders is virtually
unlimited, and exceptional circumstances are
not required to exercise discretion in favor of
vacating a dismissal. We find the trial court did
not abuse its discretion in vacating the dismissal
here. Therefore, its order is affirmed.
AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of
Civil Appeals, Division IV, by Gabbard, P.J.;
Rapp, V.C.J., and Reif, J., concur.
(Division No. 2)
101,472 — American Airlines and American
Home Assurance, Petitioners, v. David B. Hickman and The Workers’ Compensation Court,
Respondents. Having reviewed Respondent’s
Vol. 77 — No. 20 — 7/29/2006
99,070 — Ronnie L. Davis, Plaintiff/Appellant, v. Rikki D. Davis, Defendant/Appellee.
Appellant’s petition for rehearing is hereby
DENIED.
102,409 — Albertsons, Own Risk, 17320, Petitioner, v. Luvonda G. Goad and the Workers’
Compensation Court, Respondents. Employer’s petition for rehearing is DENIED. Employer’s motion to reply to Claimant’s response to
petition for rehearing is DENIED.
100,205 — Luis Delgado, Plaintiff/Appellee,
v. Riverside Nissan, Inc., et al. Defendant/
Appellant. Appellant petition for rehearing is
DENIED.
101,384 — In the Matter of the Estate of
Charles C. Wellshear, Deceased. Virgina R. Wellshear. Petitioner/Appellee, vs. Kedre D. Mellor,
CPA/PFS, Kedge C. Wellshear, Kraig A. Wellshear, Defendants/Appellants, and Fidelity
Investments, Fidelity Brokerage Services, LLC,
Fidelity Service Company, Inc., and John Does 1
through 10, Defendants. Appellee’s petition for
rehearing is DENIED.
101,434 — Rikki D. Davis, Plaintiff/Appellee,
vs. Ronnie L. Davis, Defendant/Appellant.
Appellant’s petition for rehearing is DENIED.
102,451 — Key Production Company, Inc.,
National Energy Group, Inc., Newfield Exploration Company, Inc., Smith/Drummond Venture III, Inc. and Patterson-Uti Drilling Company South, LP, LLP, Plaintiffs/Appellees, v.
Davis-Lynch, Inc. Defendant/Appellant, and
Juluca Operating Company, Defendant.
Appellees’ petition for rehearing is DENIED.
2199
101,781 — Nolan Greene d/b/a PC Steel
Buildings, Plaintiff/Appellee, vs. Clarence
Brown and Oza Lee Scott, Defendants, and
Danny Wayne Thomas, Plaintiff/Appellant, vs.
Nolan Greene d/b/a PC Steel Buildings, Defendant/Appellee. Appellee’s petition for rehearing is DENIED.
101,878 — In the Matter of the Estate of Esther
M. Cox, Deceased. Oklahoma Baptist Homes
For Children, Inc. and Trinity Baptist Church of
Oklahoma, Incorporated, Plaintiffs/Appellees,
vs. Donald J. Timberlake, Defendant/Appellant. The Joint Petition for Rehearing is
DENIED.
101,884 — (cons. with No. 101,885) City of
Nichols Hills, Oklahoma, a municipal corporation, Plaintiff/Appelle, vs. Donald E. Sable, II,
Defendant/Appellant, and Forrest “Butch”
Freeman, Oklahoma County Treasurer; Board
of County Commissioners, a body corporate
and political; and Bank of Nichols Hills, Defendants. Appellant’ petition for rehearing is
DENIED.
102,097 — Cherokee Texaco, Inc., and RSL &
K Enterprises, Inc., Plaintiff/Appellees, vs.
Sooner Telecommunications, Inc., Defendant/Appellant. Appellees’ petition for rehearing is DENIED.
Oklahoma Association
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Vol. 77 — No. 20 — 7/29/2006
NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT
OF douglas jerome “jerry” fraley, SCBD # #5207
TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION
Notice is hereby given pursuant to Rule 11.3(b), Rules Governing
Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be
held to determine if Douglas Jerome “Jerry” Fraley should be reinstated
to active membership in the Oklahoma Bar Association.
Any person desiring to be heard in opposition to or in support of the
petition may appear before the Professional Responsibility Tribunal at
the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Oklahoma
City, Oklahoma, at 9:30 a.m. on Wednesday, October 4, 2006. Any
person wishing to appear should contact Dan Murdock, General
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interest in commercial litigation & real estate transactions. Accepting resumes in confidence from attys
with 2-5 years experience. Must have excellent
research and writing skills. Send resume', salary
requirements, references, writing sample to Box “N,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
LEGAL PROBLEMS WITH TAX DEEDS?
Contact Jennifer S. Jones, Attorney at Law
Kelley & Kelley P.C.
211 N. Robinson, Suite 800, OKC 73102
(405) 235-4671/(405) 234-5511(fax)
jennifer_jpklaw@swbell.net
OFFICE SPACE
OFFICE SPACE AVAILABLE NE 63rd St. Okla. City,
easy access to I-35, Broadway Ext. & I-44. Includes conference room, office machines, utilities, phone, high
speed internet, security system & janitorial services,
$344/mo. Call James (405) 843-9966.
TWO OFFICES AVAILABLE FOR SUBLEASE — 204 N.
Robinson — OKC. Receptionist, phone, copier, fax, law
library, conference room, kitchen and DSL internet
access. Call Christy at Elliott and Peterson at (405) 2363600.
PRESTIGIOUS OKC OFFICE SPACE — Ideal for small
law firm or solo practitioner. Located at 154th & N. May at
the entrance to Esperanza. Beautiful country French
building overlooks ponds and waterfalls; convenient to
Kilpatrick Turnpike and Hefner Parkway; inclusive of
receptionist; high speed internet; fax; copier; digital
telephone system; security system with cameras;
gourmet kitchen and conference room. $900 per month.
AVAILABLE NOW. Contact Gregg Renegar (405) 285-8118.
OFFICES FOR RENT: NW Classen Location, OKC.
Telephone, law library, waiting area, receptionist, telephone answering service, office Desk & Chair, all
included in rent; Offices from $490.00 per month. No
lease required. Free parking. Gene (405) 525-6671.
DOWNTOWN OKC Office space available. Two
blocks east of Courthouse. Internet, fax, copiers, conference rooms, library, kitchen available. Price negotiable depending on space and services used. Contact
Firm Administrator at (405) 236-8541.
SUCCESSFUL LAW PRACTICE in small town outside
Tulsa is shutting down. Excellent opportunity for young
lawyer wanting to start own practice. Turnkey operation-furniture, books, computers, supplies, etc. Fantastic
potential. Lease all for $700/mo. Box “V,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
Vol. 77 — No. 20 — 7/29/2006
SMALL N.W. OKC FIRM WITH HEAVY CASE
LOAD seeks associate with experience in personal
injury, and civil litigation. Candidate must also have
bankruptcy experience and working knowledge with
the new updates. Our firm practice focuses mainly in
personal injury, family practice, criminal practice and
bankruptcy. All contacts will be kept confidential.
Compensation package commensurate with
experience and performance. Send resume to Box
“R,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
POSITION AVAILABLE: PART TIME legal research
and writing. Must have graduated in top 10% of class.
Send writing sample, law school transcript, hourly
rate requested, details of availability, and resume.
Must have excellent computer skills. Please respond to
Box “X,” Oklahoma Bar Association, P.O. Box 53036,
IN-HOUSE COUNSEL POSITION
Blue Cross and Blue Shield of Oklahoma
seeks an attorney for its legal department in
Tulsa with a minimum of five years experience
in health care law, insurance law and/or
regulatory law. Interested applicants should
send
resumes
by
email
to
Martha_West@hcsc.net, or by mail to Blue
Cross and Blue Shield of Oklahoma, ATTN:
Martha West, Human Resources Department,
P.O. Box 1581, Tulsa, OK 74101-1581. EOE.
INSURANCE DEFENSE – AV rated civil litigation firm
with offices in Tulsa and Oklahoma City seeking experienced attorneys for its growing practice in both locations. Insurance defense background and 3+ years
experience in civil litigation required. Compensation
commensurate with experience. All applications will
be held in the strictest of confidence. Please send CV
and references to Box “E,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
AV RATED LAW FIRM ABEL, MUSSER, SOKOLOSKY,
MARES & KOURI seeks to expand by adding attorneys
with 10+ years experience in the areas of family law, tax
law and estate planning. Submit confidential resume to
Ed Abel, One Leadership Square, Suite 600, 211 N.
Robinson, Oklahoma City, OK 73102
2203
POSITIONS AVAILABLE
SEEKING ATTORNEY INTERESTED IN HANDLING
NON-LITIGATION MATTERS IN WOODWARD, Okla.
— Office share arrangement or possible association.
Prefer attorney with at least 5 years experience.
Contact Duke Halley, P.L.L.C., PO Box 509, Woodward,
Oklahoma, 73802.
STATE OF OKLAHOMA — Oklahoma Tax Commission. The office of the General Counsel — Oklahoma Tax
Commission has an opening a for staff attorney primarily assigned to general administrative proceedings, litigation, and drafting official legal opinions. Background
in accounting, finance or business law preferred. Minimum five years experience. Salary commensurate with
experience. Send resume and writing samples by
August 15, 2006 to Dawn Cash, Office of General Counsel, P.O. Box 53248, Oklahoma City, OK. 73152-3248. The
State of Oklahoma is an Equal Opportunity Employer.
NW OKC FIRM seeks an associate with at least 2-3
years of general litigation experience. Firm's practice is
focused on business law issues, including debtor creditor matters, real estate, corporate matters and litigation.
Firm's clients are widely diversified, including public
companies and financial institutions. Must be prepared to immediately assume substantial responsibility.
Compensation and benefits commensurate with experience and abilities. All applications will be held in strict
confidence. Send resume and salary requirements to
Box "B,” Oklahoma Bar Association, P.O. Box 53036,
NORTHEAST OKLAHOMA ABSTRACT AND TITLE
CO. SEEKS RECENT LAW SCHOOL GRADUATE FOR
IN-HOUSE COUNSEL POSITION. Please send resume
and references to Box “C,” Oklahoma Bar Association,
DOWNTOWN OKC AV FIRM seeks associate with
2-5 years experience in general civil and/or criminal litigation. Strong academic, research and writing background required. Must be prepared to immediately
assume substantial responsibility. Compensation and
benefits commensurate with abilities. Send resume and
salary requirements to Box “Y”, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
NW OKC CREDITOR'S RIGHTS firm seeking Attorney
with 0-2 yrs experience. Courtroom experience preferable. Please fax resume and cover letter to (405) 773-2608.
OKC LAW FIRM seeks attorney with 3 to 5 years experience in litigation. Resume and salary requirements can
be submitted to Box “A,” Oklahoma Bar Association,
FOUR ATTORNEY AV-RATED LITIGATION FIRM
located in the Mid-Continent Tower with a second office
in Dallas, seeks association with one to three
experienced attorneys for the Tulsa office. Ideally the
attorneys would have complementary practices, such as
corporate, business litigation or estate planning. Send
replies to: Michael S. Linscott, 401 South Boston, Suite
230, Tulsa, OK 74103.
2204
POSITIONS AVAILABLE
MidFirst Bank, an Oklahoma based financial
institution with over $10 billion in assets,
is one of the most successful financial
institutions in the state, having experienced
tremendous profit and growth over the last
10 years. As a result, we have an immediate
career opportunity available for a resultsoriented professional who will assist the
Company in achieving new levels of success.
ASSISTANT GENERAL COUNSEL
The responsibilities of this position will
include advising company’s management on
a wide array of issues, including consumer,
mortgage and business lending issues,
deposit issues, trust issues, and corporate
records issues; reviewing and drafting real
estate documents, loan documents, and general contracts; and working with all other
corporate attorneys in all divisions of the
Company including retail banking, mortgage
servicing and real estate. The qualified candidate will possess a law degree and 3-5 years
legal experience. Good writing, research and
communication skills are required. We offer a
competitive salary and benefits package. If
you wish to be considered for this opportunity please visit our website to apply.
www.midfirst.com AA/EOE M/F/DV
SMITH RHODES STEWART & ELDER, P.L.L.C. seeks
associate attorney for products liability, insurance
defense and general litigation practice. Submit
resume, writing sample and description of trial
experience to 119 N. Robinson Ave. Ste. 820, Oklahoma
City, OK 73102.
RIGGS ABNEY NEAL TURPEN ORBISON &
LEWIS is seeking an attorney with 2-5 years focused
experience in real estate and business transactions for
the firm’s Tulsa office. Please forward resumes to
cnichols@riggsabney.com
ASSISTANT ATTORNEY GENERAL, GENERAL
COUNSEL SECTION. Applicants shall be licensed to
practice law in Oklahoma courts. Requires minimum of
seven years in the practice of law. Serving the Oklahoma Teachers Retirement System. Administrative law
experience preferable, knowledge of pension law a plus,
legal writing skills paramount. Knowledge and use of
WordPerfect. See web site at www.oag.state.ok.us for
more details. Send resume and writing sample to W.A.
Drew Edmondson, Attorney General, State Capitol
Building, 2300 N. Lincoln Boulevard, Room 112, Oklahoma City, OK 73105. Salary range $57,000 to $75,000,
commensurate with experience.
Vol. 77 — No. 20 — 7/29/2006
POSITIONS AVAILABLE
POSITIONS AVAILABLE
SUPERSTAR Associate. Vibrant, small firm in Tulsa has
rare opportunity for superstar associate experienced in
major business litigation. Impeccable credentials, desire
for challenge, and entrepreneurial spirit are essential.
Large firm experience a plus. We will provide opportunity and support. The rest is up to you. Rise as far, as fast
as your abilities. Compensation to match. For the right
person, a once in a career opportunity. Reply to Box “P,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
NW OKC FIRM seeks an attorney with at least 5 years
experience in corporate law and transactional work,
preferably with experience in estate planning and some
knowledge of tax law. Firm's practice is focused on
business law issues, including debtor creditor matters,
real estate, corporate matters and litigation. Firm's
clients are widely diversified, including public companies and financial institutions. Must be prepared to
immediately assume substantial responsibility. Compensation and benefits commensurate with experience
and abilities. All applications will be held in strict confidence. Send resume and salary requirements to Box
"Z,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
LAW OFFICES OF THE FEDERAL PUBLIC DEFENDER, NORTHERN AND EASTERN DISTRICTS OF
OKLAHOMA. POSITION ANNOUNCEMENT: Assistant Federal Public Defender, Tulsa, Oklahoma. The Federal Public Defender for the Northern and Eastern Districts of Oklahoma is accepting applications for the position of Assistant Federal Public Defender in Tulsa. The
federal defender organization operates under authority
of the Criminal Justice Act, 18 U.S.C. § 3006A, to provide
defense services in federal criminal cases and related
matters in the federal courts. Requirements: This position requires a minimum of five years of experience with
an emphasis on criminal law. Computer knowledge and
appellate experience desirable. An applicant must be a
member in good standing of a State Bar in which he or
she is currently admitted to practice and must be eligible
for immediate admission to the Bar of the United States
District Court for the Northern and Eastern Districts of
Oklahoma, the United States Court of Appeals for the
Tenth Circuit, and the United States Supreme Court. The
initial period of employment will be probationary, subject to successful completion of a background check.
Salary and Benefits: This is a full-time position. Federal
salary and benefits apply. Salary is commensurate with
experience and education and equivalent to salaries for
Assistant United States Attorneys with similar experience. This position is subject to mandatory electronic
transfer (direct deposit) of net pay. How to Apply:
Qualified persons may apply by forwarding a letter of
interest and resume to: Paul D. Brunton, Federal Public
Defender, 1 West 3rd Street, Suite 1225, Tulsa, OK 74103.
Applications must be received no later than 5:00 p.m.
Monday, August 7, 2006. The Federal Public Defender is
an Equal Opportunity Employer
LESTER, LOVING & DAVIES, P.C., an AV rated law firm
seeks experienced lawyers with portable practices to
enter into an of counsel relationship. Send resumé to
Lester, Loving & Davies, 1701 South Kelly Avenue,
Edmond, OK 73013.
THE U.S. ATTORNEY’S OFFICE is seeking experienced
individuals to fill two (2) Legal Assistant positions in the
Criminal Division, starting at $35,116 per year. Applications must be postmarked by August 4, 2006. Applicant
MUST provide specific application information outlined
in the vacancy announcement at www.usajobs.opm.gov
(Exec Office for US Attorneys). Failure to provide this
information may result in a lower rating. For more
information, contact Mrs. Engelke, 210 Park Avenue,
Suite 400, Okla. City, OK 73102 or phone (405) 553-8777.
Vol. 77 — No. 20 — 7/29/2006
NW OKC LAW FIRM seeks associate with 1-5 years
experience in estate planning and probate. Excellent writing, communication and computer skills required. All
contacts will be kept confidential. Compensation commensurate with experience and performance. Benefits
include health, dental and life insurance. Send resume,
transcript and writing sample to Box “I,” Oklaoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
PARALEGAL UP TO $36K + state benefits package. BS
or BA; or 4 yrs paralegal/legal asst exp; or an equivalent
combination of edu & exp. Preference for: Paralegal certification; Federal appellate experience; Exp w/ case
mgmt software (e.g., Case Logistics); Exp performing
legal research and preparing legal documents; and/or
adv edu. Download appl. and questionnaire from website. Deadline: August 18th, 2006. OK Health Care
Authority, Attn: Human Resources, 4545 N. Lincoln
Blvd., Ste. 124, OKC, OK 73105. personnel@okhca.org,
www.okhca.org. EOE
CLASSIFIED INFORMATION
CLASSIFIED RATES: One dollar per word per
insertion. Minimum charge $35. Add $15
surcharge per issue for blind box advertisements
to cover forwarding of replies. Blind box word
count must include “Box ____ , Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK
73152.” Display classified ads with bold headline
and border are $50 per inch. See www.okbar.org
for issue dates and Display Ad sizes and rates.
DEADLINE: Tuesday noon before publication.
Ads must be prepaid. Send ad in writing stating
number of times to be published to:
Melissa Brown
Oklahoma Bar Association
P.O. Box 53036
Publication and contents of any advertisement is not
to be deemed an endorsement of the views expressed
therein, nor shall the publication of any advertisement be considered an endorsement of the procedure
or service involved. All placement notices must be
clearly non-discriminatory.
2205
2206
Vol. 77 — No. 20 — 7/29/2006
Vol. 77 — No. 20 — 7/29/2006
2207

July 29 Merged - Oklahoma Bar Association

Transcription

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