Volume 80 No. 18 July 11, 2009

Transcription

Volume 80 u No. 18 u July 11, 2009
Tort Reform: The Effects of 1603
on Your Practice
An OBA/CLE Webcast Seminar
DATE:
TIME:
LOCATION:
July 15, 2009
Noon
Your choice - any place with a computer!
CLE CREDIT:
This course has been approved by the Oklahoma Bar Association
Mandatory Continuing Legal Education Commission for 1 hour of
mandatory CLE Credit, including 0 hours of ethics. This is considered
live MCLE seminar credit, not online seminar MCLE credit. Questions?
Call (405) 416-7006
TUITION:
$50 No discounts. Register online at
www.legalspan.com/okbar/webcasts.asp
CANCELLATION
POLICY: Cancellations, discounts, refunds, or transfers will not be accepted.
This past legislative session has resulted in what some are describing as the most sweeping,
comprehensive tort reform our State has seen. It has been touted as opening Oklahoma’s
doors to new business and expanded medical care. This program will dissect House Bill
1603, and analyze how it will affect your day-to-day civil practice once it takes effect
November 1, 2009.
Program Presenter
Bradley C. West, The West Law Firm, Shawnee
PROGRAM:
12:00 p.m.
Tort Reform: The Effects of 1603 on Your Practice
12:50 p.m.
Adjourn
Register online at www.legalspan.com/okbar/webcasts.asp
1426
The Oklahoma Bar Journal
Vol. 80 — No. 18 — 7/11/2009
BAR Center Staff
John Morris Williams, Executive Director;
Gina L. Hendryx, General Counsel;
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Programs; Carol A. Manning, Director of
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Vol. 80 — No. 18 — 7/11/2009
events Calendar
OFFICERS & BOARD OF GOVERNORS
Jon K. Parsley, President, Guymon
Allen M. Smallwood, President-Elect, Tulsa
Linda S. Thomas, Vice President, Bartlesville
J. William Conger, Immediate Past President,
Oklahoma City
Jack L. Brown, Tulsa
Martha Rupp Carter, Tulsa
Charles W. Chesnut, Miami
Cathy Christensen, Oklahoma City
Donna Dirickson, Weatherford
Steven Dobbs, Oklahoma City
W. Mark Hixson, Yukon
Jerry L. McCombs, Idabel
Lou Ann Moudy, Henryetta
Deborah Reheard, Eufaula
Peggy Stockwell, Norman
James T. Stuart, Shawnee
Richard Rose, Oklahoma City, Chairperson,
OBA/Young Lawyers Division
JULY 2009
OBA Women in Law Committee Meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Deborah Reheard
(918) 689-9281
17
Oklahoma Bar Foundation Meeting; 12:30 p.m.; Oklahoma Bar Center,
Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Nancy
Norsworthy (405) 416-7070
18
OBA Title Examination Standards Committee Meeting; 9:30 a.m.;
Oklahoma Bar Center, Oklahoma City; Contact: Kraettli Epperson
(405) 848-9100
20
OBA Alternative Dispute Resolution Subcommittee Meeting;
3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Andrea Braeutigam
(405) 640-2819
OBA Alternative Dispute Resolution Section Meeting; 4 p.m.;
Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Andrea Braeutigam (405) 640-2819
21
OBA Law-related Education PACE Institute; Oklahoma City; Contact:
Jane McConnell (405) 416-7024
OBA Member Services Committee Meeting; 3 p.m; Oklahoma Bar
Center, Oklahoma City; Contact: Keri Williams Foster (405) 385-5148
OBA Civil Procedure Committee Meeting; 3 p.m.; Oklahoma Bar
Center, Oklahoma City and OSU Tulsa; Contact: James Milton
(918) 591-5229
23
OBA Access to Justice Committee Meeting; 10 a.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact:
Kade McClure (580) 248-4675
OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center,
Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack Brown
(918) 581-8211
OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar Center,
Oklahoma City with teleconference; Contact: H. Terrell Monks (405) 733-8686
24
OBA Board of Governors Meeting; Stillwater; Contact: John Morris
Williams (405) 416-7000
25
OBA Young Lawyers Division Committee Meeting; Tulsa County Bar
Center, Tulsa; Contact: Rick Rose (405) 236-0478
27
OBA Government and Administrative Law Practice Section
Meeting; 4:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact:
Patricia A. Podolec (405) 760-3358
28-31 OBA Bar Examinations; Oklahoma Bar Center, Oklahoma City; Contact:
Board of Bar Examiners (405) 416-7075
For more events go to www.okbar.org/news/calendar.htm
14
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The design of the scales and the “Oklahoma Bar Association” encircling the
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1427
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Vol. 80 — No. 18 — 7/11/2009
Oklahoma Bar Association
table of
contents
July 11, 2009
• Vol. 80
• No. 18
page
1427 Events Calendar
1430 Index to Court Opinions
1431 Supreme Court Opinions
1485 OBA Nominating Petitions
1486 Court of Criminal Appeals Opinions
1491OBA Members Suspended for
Nonpayment of Dues
1494OBA Members Suspended for
Noncompliance with MCLE Requirements
1496 Disposition of Cases Other Than By Publication
Vol. 80 — No. 18 — 7/11/2009
1429
Index To Opinions Of Supreme Court
Order for the Administrative Reinstatement of Certified and Licensed Shorthand Reporters for Failure to Report Continuing Education for Calendar Year 2008. S.C.A.D. No.
2009-56................................................................................................................................................. 1431
2009-58................................................................................................................................................. 1431
2009-61................................................................................................................................................. 1431
2009 OK 53 Jean Walpole Coulter, Jean Walpole Coulter and Associates, Roy D. Tucker,
Roy D. Tucker, P.C., and Coulter Tucker, P.C., Plaintiffs/Appellants, v. First American
Resources, L.L.C., Defendant/Appellee. No. 106,206.................................................................. 1431
2009 OK 49 Lora Ann Miller, Plaintiff/Appellant, v. David Grace, Inc., David Grace, individually, and First Choice Management, Defendants/Appellees, and Satca, Ltd.,
Parent Company of River Chase Apartments, and First Choice Properties, Inc., Defendants. No. 104,313.............................................................................................................................. 1433
2009 OK 48 RICHARD BOWMAN and DANA BOWMAN Plaintiffs/Appellants v.
MICHAEL PRESLEY; HEIDI PRESLEY; LINDA PRESLEY and CENTURY 21 BOB
CROTHERS REALTY, INC. Defendants/Appellees. No. 105,727.............................................. 1439
2009 OK 50 STEVEN R. BLUE Plaintiff/Appellee, v. BOARD OF TRUSTEES OF EMPLOYEES’ RETIREMENT SYSTEM OF TULSA COUNTY, Defendant/Appellant. No.
104,967.................................................................................................................................................. 1446
2009 OK 52 DANNY DYE and PAT DYE, Husband and Wife, Plaintiffs/Appellants, v.
CHOCTAW CASINO OF POCOLA, OKLAHOMA, and THE CHOCTAW NATION
OF OKLAHOMA, Defendants/Appellees. No. 104,737.............................................................. 1450
2009 OK 51 DOROTHY GRIFFITH, Plaintiff/Appellant, v. CHOCTAW CASINO OF
POCOLA, OKLAHOMA, and the CHOCTAW NATION OF OKLAHOMA, Defendants/Appellees. No. 104,887.......................................................................................................... 1457
2009 OK 56 BRIAN LEE WILSON, Plaintiff/Appellant, v. CARL DANIEL WEBB and
BRENT STAPP, Defendants/Appellees. No. 105,874................................................................... 1471
2009 OK 57 VICTOR CARBAJAL, Appellant, V. BAHAM SAFARY, Individually and
PRESTIGIOUS PROPERTIES, INC., an Oklahoma Corporation Appellees. No. 104,547........... 1474
2009 OK 54 IN THE MATTER OF THE DEATH OF LOUIS REEDER: NAOMI REEDER,
Petitioner, v. ZINC CORPORATION OF AMERICA; ACE AMERICAN INSURANCE
COMPANY and THE WORKERS’ COMPENSATION COURT, Respondents. No.
105,229.................................................................................................................................................. 1476
2009 OK 55 OKLAHOMA GOODWILL INDUSTRIES, INC., Plaintiff/Appellee, v.
OKLAHOMA EMPLOYMENT SECURITY COMMISSION, Defendant/Appellant,
and ASSESSMENT BOARD OF THE OKLAHOMA EMPLOYMENT SECURITY
COMMISSION; BOARD OF REVIEW OF THE OKLAHOMA EMPLOYMENT SECU
RITY COMMISSION; AND BEVERLY A. PETERS, Defendants. No. 102,539.......................... 1478
Index To Opinions Of Court of Criminal Appeals
2009 OK CR 20 TOMMY WAYNE LOVE, Appellant, v. STATE OF OKLAHOMA, Appel
lee. Case No. F-2008-236.................................................................................................................... 1486
1430
Vol. 80 — No. 18 — 7/11/2009
Supreme Court Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
Order for the Administrative Reinstatement
of Certified and Licensed Shorthand
Reporters for Failure to Report Continuing
Education for Calendar Year 2008.
S.C.A.D. No. 2009-56. June 24, 2009
S.C.A.D. No. 2009-61. June 30, 2009
ORDER OF REINSTATEMENT
The State Board of Examiners of Certified
Shorthand Reporters has requested the reinstatement of the following persons as having
now completed all requirements for reporting
their annual Continuing Education for Calendar Year 2008.
The Court orders that the following persons
are hereby reinstated from the suspension earlier imposed by S.C.A.D. No. 09-26 on March
11, 2009:
11, 2009:
Wendy Ragan Sugrue
Melissia Prawl
Done on this 24th day of June, 2009.
/s/
James E. Edmondson
Chief Justice
/s/
James E. Edmondson
Chief Justice
S.C.A.D. No. 2009-58. June 26, 2009
11, 2009:
Lynne Smith
/s/
James E. Edmondson
Chief Justice
2009 OK 53
Jean Walpole Coulter, Jean Walpole Coulter
and Associates, Roy D. Tucker, Roy D.
Tucker, P.C., and Coulter Tucker, P.C.,
Plaintiffs/Appellants, v. First American
Resources, L.L.C., Defendant/Appellee.
No. 106,206. June 30, 2009
CERTIORARI TO THE
COURT OF CIVIL APPEALS
Division IV
CERTIORARI PREVIOUSLY GRANTED;
OPINION OF COURT OF
CIVIL APPEALS VACATED;
ORDER OF DISTRICT COURT REVERSED;
CAUSE REMANDED WITH DIRECTIONS.
William R. McMahon, Jr., Tulsa, Oklahoma, for
Plaintiffs/Appellants.
Brian Goree, Latham, Wagner, Steele & Lehman,
Tulsa, Oklahoma, for Defendant/Appellee.
COLBERT, J.
¶1 This matter presents an issue of contract
enforcement concerning whether the trial court
Vol. 80 — No. 18 — 7/11/2009
1431
erred in refusing to give effect to the parties’
choice of arbitration venue and choice of applicable law found in the arbitration clause of a
retainer agreement between a law firm and its
client. This Court holds that the trial court
erred by refusing to give effect to the unambiguous expression of the parties’ venue selection and their choice of law for the arbitration
of disputes arising from their contract for legal
services.
FACTS AND PROCEDURAL HISTORY
¶2 Plaintiffs are a Tulsa law firm and its associated lawyers, Jean Walpole Coulter and Roy
D. Tucker (collectively Tulsa Lawyers), who
entered into an attorney-client Retainer Agreement with First American Resources, L.L.C.
(FAR). The Retainer Agreement included an
arbitration clause which specifically designated Tulsa, Oklahoma as the venue for arbitration and provided that Oklahoma law would
apply.
¶3 FAR had earlier entered into a Joint Venture Agreement with Horizon Oil Technologies, Inc. (HOTI) to install a newly designed
pumping system into oil and gas wells. That
agreement provided for arbitration in New
York County, New York. It further provided
that “[t]he choice of law shall be Oklahoma Oil
and Gas laws on established issues.” Tulsa
Lawyers claim the Joint Venture Agreement
was later modified to provide that New York
law would govern the arbitration of disputes.
¶4 Contract disputes arose between FAR and
HOTI and on February 28, 2008, FAR filed a
demand for arbitration in New York. A separate dispute arose between Far and Tulsa Lawyers concerning legal representation and the
lawyers’ fiduciary duty relative to the Joint
Venture Agreement. FAR attempted to amend
its New York arbitration proceeding to encompass its dispute with Tulsa Lawyers.
¶5 Tulsa Lawyers brought this action in the
District Court of Tulsa County seeking declaratory and injunctive relief to prevent FAR from
pursuing arbitration claims against them in
New York as opposed to Tulsa. The trial court,
however, declined to consider the action viewing the issues of venue and applicable law as
matters for the New York arbitrator. It overruled Tulsa Lawyers’ motion to reconsider. The
Court of Civil Appeals affirmed based on the
same reasoning.
1432
ANALYSIS
¶6 Whether the trial court had the duty to
enforce the parties’ selection of an arbitration
venue and their choice of law in their contract
presents a question of law. Questions of law are
reviewed de novo. Kluver v. Weatherford Hosp.
Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.
¶7 As a preliminary matter, this Court must
address the parties’ dispute concerning whether the provisions of the Oklahoma Uniform
Arbitration Act (OUAA), Okla. Stat. tit. 12,
§§ 1851-1881 (Supp. 2005), and/or the Federal
Arbitration Act (FAA), 9 U.S.C. §§ 1-16 (2006),
apply to this dispute. FAR contends that Tulsa
Lawyers may not invoke the provisions of the
FAA because the act was not urged as authority
in either the trial court or the Court of Civil
Appeals. That assertion, however, is immaterial to the resolution of the dispute because this
matter involves the trial court’s authority to
enforce an arbitration provision according to
its terms and its reciprocal authority to prevent
arbitration on terms other than those on which
the parties agreed. A court’s contract enforcement authority as to arbitration venue selection and choice of law is the same when applying either act.
¶8 The primary purpose of both the FAA and
the OUAA is to ensure that private agreements
to arbitrate are enforced according to their
terms. See Volt Info. Scis., Inc. v. Bd. of Trs. of
Leland Stanford Jr. Univ., 489 U.S. 468, 479
(1989)(“FAA’s primary purpose [is to ensure]
that private agreements to arbitrate are enforced
according to their terms.”); Okla. Oncology &
Hematology P.C. v. US Oncology, Inc., 2007 OK
12, ¶ 33, 160 P.3d 936, 948 (“Like any other contract provision, an arbitration provision will be
read . . . so as to give effect to the intention of
the parties ascertained from the four corners of
the contract.”). Applying either act, “[t]he
courts will enforce arbitration agreements
according to the terms of the parties’ contract,
as ‘arbitration is a matter of consent, not coercion.’” Okla. Oncology, 2007 OK 12, ¶ 22, 160
P.3d at 944 (quoting Volt, 489 U.S. at 479. “The
contract must be construed to carry out the
intent of the parties at the time the contract was
made.” Rust v. Carriage Servs. of Okla., Inc.,
2007 OK CIV APP 125, ¶ 9, 173 P.3d 805, 808
(quoting Oxley v. Gen. Atl. Ress., Inc., 1997 OK
46, ¶ 14, 936 P.2d 943, 945. Therefore, arbitration may be initiated only in the venue selected
by the parties and under the law which the
Vol. 80 — No. 18 — 7/11/2009
parties designated in the arbitration agreement. These choices present a matter of contract enforcement for the courts, not a dispute
to be decided by an arbitrator.1
¶9 In this matter, the parties to the Retainer
Agreement consented to arbitration in Tulsa,
Oklahoma and to have disputes arising from
the legal representation of FAR decided under
Oklahoma law. They did not agree to arbitration in New York. Although the parties to the
Retainer Agreement are contractually obligated
to arbitrate disputes arising from that contract,
their venue selection and choice of law presented issues of contract enforcement for the
trial court. That court was required to prevent
arbitration from proceeding in an arbitration
forum other than the one chosen by the parties
and under law other than that designated in
the arbitration provision. See Okla. Oncology,
2007 OK 12, ¶ 27, 160 P.3d at 946. This it failed
to do.
¶10 This matter must be remanded to the
trial court with directions to enjoin the parties
to the Retainer Agreement from proceeding in
arbitration in New York. Nothing in this opinion prohibits a party to the Retainer Agreement
from bringing an arbitration proceeding in the
venue and under the law chosen in the arbitration provision.
OPINION OF COURT OF
CIVIL APPEALS VACATED;
ORDER OF DISTRICT COURT REVERSED;
CAUSE REMANDED WITH DIRECTIONS.
ALL JUSTICES CONCUR.
1. Much of the parties’ argument is devoted to establishing whether New York or Tulsa presents the most convenient venue for expeditious arbitration of disputes between FAR and Tulsa Lawyers concerning the Retainer Agreement. FAR observes that an arbitrator has the
authority to order consolidation of separate arbitration proceedings
under the criteria enumerated in the OUAA. See Okla. Stat. tit. 12,
§ 1861 (Supp. 2005). FAR concludes that the decision concerning the
proper arbitration venue is for the New York arbitrator. In this matter,
however, only one arbitration proceeding is currently pending and
that is in New York. The issue in this matter is not the convenience of
the arbitration venue. Rather, it is a question of whether a court should
give effect to the parties unambiguous selection of the venue stated in
their agreement.
2009 OK 49
Lora Ann Miller, Plaintiff/Appellant, v.
David Grace, Inc., David Grace, individually,
and First Choice Management, Defendants/
Appellees, and Satca, Ltd., Parent Company
Vol. 80 — No. 18 — 7/11/2009
of River Chase Apartments, and First Choice
Properties, Inc., Defendants.
No. 104,313. June 30, 2009
CERTIORARI TO THE
DIVISION III
¶0 Tenant instituted a negligent maintenance and construction action against landlord and contractor respectively, for personal injuries sustained when tenant fell
from her second story balcony after the
balcony railing collapsed. The District
Judge of Oklahoma County, Honorable
Patricia G. Parrish, granted summary judgment in favor of landlord and contractor.
The Court of Civil Appeals affirmed the
trial court’s ruling as to landlord based on
the holdings in Godbey v. Barton, 1939 OK
19, 86 P.2d 621, Alfe v. New York Life Ins.
Co., 1937 OK 243, 67 P.2d 947, and similar
cases premised on the common law rule of
landlord tort immunity; but reversed as to
contractor.
COURT OF CIVIL APPEALS OPINION
VACATED; DISTRICT COURT’S JUDGMENT
REVERSED; AND MATTER REMANDED
FOR FURTHER PROCEEDINGS.
Rex Travis, Paul D. Kouri, Oklahoma City, for
Plaintiff.
C. William Threlkeld, C. Todd Ward, Brion B.
Hitt, Fenton, Fenton, Smith, Reneau & Moon,
Oklahoma City, for Defendant/Appellee First
Choice Management.
Victor F. Albert, Conner & Winters, LLP, Oklahoma City, for Defendants/Appellees David
Grace and David Grace, Inc.
COLBERT, J.
¶1 On December 29, 2008, this case was
assigned to this office. This is a negligent maintenance and construction action initiated by a
tenant against her landlord and a contractor
after the tenant fell from her second story balcony due to a defectively installed balcony railing. The district court granted the landlord’s
and contractor’s motions for summary judgment based on the traditional common law
rule that holds a landlord harmless for injuries
occurring on the leased premises and held
that the danger was open and obvious. The
appellate court affirmed the judgment in favor
of the landlord but reversed the judgment in
favor of the contractor because factual ques-
1433
tions remain as to the tenant’s knowledge of
the dangerous condition and whether the
danger was open and obvious. We hold that
summary judgement was inappropriate as to
both defendants and adopt the view embraced
by other jurisdictions which imposes a general
duty of care upon landlords to maintain the
leased premises in a reasonably safe condition, including areas under the tenant’s exclusive control or use.
I. BACKGROUND AND
PROCEDURAL HISTORY
¶2 On July 29, 2002, Plaintiff, Lora Ann
Miller (Tenant) moved into the River Chase
Apartments owned and operated by First
Choice Management (Landlord).1 The unit was
located on the second floor and contained a
wooden balcony deck and U-shaped metal
guardrail. At Landlord’s request, Tenant was
instructed to inspect the unit to determine if
“anything was wrong with [the unit]” and convey her findings to Landlord. During Tenant’s
inspection, Tenant discovered the balcony railing was loose.
¶3 Tenant testified by deposition that she
believed her balcony was dangerous and
“maybe somebody was going to fall.” According to Tenant, the balcony railing was loose
because it was missing a screw and the railing
was not “metaled” to the wall. Tenant advised
the apartment manager of the defects on at
least two occasions. Allegedly, the manager
advised Tenant that “she would help [Tenant]
take care of it”; however, no repairs were ever
made. Unbeknownst to Tenant, the railing was
also missing additional screws on the other
side of the balcony and the balcony flooring
was cracked in the very spot where the railing
should have been attached by screws to the
wooden deck.
¶4 On August 18, 2002, Tenant, while standing on the balcony, placed her hand on the
defective railing, leaned forward, and the entire
U-shaped railing along with Tenant fell from
the second floor, landing on the ground below.
She sustained multiple injuries.
¶5 In September 2001, just eleven months
prior to Tenant’s fall, Landlord employed
David Grace, Inc. (Contractor) to “rebuild all
balconies as per city code.” According to Contractor, Landlord did not notify Contractor of
any problems with the repair work.
¶6 Tenant initiated a negligent maintenance
and construction action against Landlord and
1434
Contractor, respectively. Tenant asserts that
Landlord owed her a duty to repair the defective railing. In addition, she contends the dangerous condition was not an open and obvious
hazard and therefore, she was unable to fully
appreciate the risk. As to Contractor, Tenant
contends that Contractor “owed a duty to construct and install a safe balcony railing.”
¶7 In separate motions, Landlord and Contractor moved for summary judgment asserting no duty was owed in view of the holdings
in Godbey v. Barton, 1939 OK 19, 86 P.2d 621,
and other similar cases; and that the balcony
railing was an open and obvious condition. To
support their respective arguments, each
attached Tenant’s deposition testimony admitting that Tenant discovered the loose railing
and missing screw at the commencement of
her lease. In addition to Landlord’s no duty
defense, Landlord maintains that Tenant had
exclusive control of the premises.
¶8 In response, Tenant reasserted Landlord’s
failure to repair the defective railing. As to
Contractor, Tenant maintained Contractor’s
duty to install a safe railing and in support,
Tenant submitted the September 2001 River
Chase-David Grace, Inc. contract to “rebuild all
balconies as per city code,” and evidence of the
balcony area illustrating the existence of “additional defects” such as corrosion and rust in the
railing joints and welds, of which she had no
knowledge.
¶9 Without explanation, the trial court granted summary judgment to both defendants.
Tenant appealed. The appellate court affirmed
judgment in favor of Landlord,2 but reversed
the judgment in favor of Contractor because
Tenant’s negligence action stems from an
improperly installed railing, not from Contractor’s alleged duty to warn her of the defective
condition. Tenant urges this Court to overrule
Godbey, Alfe v. New York Life Ins. Co., 1937
OK 243, 67 P.2d 947, and similar cases; and to
adopt the view embraced by a majority of
other states which removes a veil of landlord
immunity and instead treats the landlord as
any other property owner imposed with a general duty of care of their premises.
II. STANDARD OF REVIEW
¶10 A moving party is entitled to summary
judgment as a matter of law only when the
pleadings, affidavits, depositions, admissions
or other evidentiary materials establish that no
genuine issue of material fact exists. Davis v.
Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924, 926. In
Vol. 80 — No. 18 — 7/11/2009
reviewing the grant or denial of summary
judgment, this Court views all inferences and
conclusions to be drawn from the evidentiary
materials in a light most favorable to the nonmoving party. Id. Because a grant of summary
judgment is purely a legal issue, this Court’s
standard of review on appeal is de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d
1051, 1053.
¶11 In order to defeat a summary judgment
motion on a negligence claim, the opponent
must establish that a genuine issue of material
fact exists as to whether the defendants: (1)
owed a duty of care to the plaintiff; (2) breached
that duty; or (3) breach of that duty proximately caused the plaintiff’s injuries. See Copeland
v. Tela Corp., 1999 OK 81, ¶ 5, 996 P.2d 931, 933.
The cornerstone of a negligence action is the
existence of a duty. Bray v. St. John Health Sys.,
Inc., 2008 OK 51, ¶ 6, 187 P.3d 721, 723. The
issue of whether a duty existed is a question of
law. Id.
III. ANALYSIS
¶12 Tenant urges that the Oklahoma Legislature abrogated the common law landlord tort
immunity rule with its enactment of Okla. Stat.
tit. 41, § 118 (2001). She contends the immunity
rule articulated in Alfe and Godbey is out of
sync with Oklahoma’s landlord tenant laws.
Those cases centered around Okla. Stat. tit. 41,
§§ 31 and 32, which was repealed by section
118 in 1978.
¶13 This Court, however, cannot agree with
Tenant’s contention. Absent the Legislature’s
expressed intent to the contrary, the common
law remains intact. Tate v. Browning-Ferris,
Inc., 1992 OK 72, ¶ 11, 833 P.2d 1218, 1225.
Although the Oklahoma Landlord Tenant Act,
specifically Okla. Stat. tit. 41 § 118(A)(2) (2001)3,
imposes a duty upon the landlord to “[m]ake
all repairs and do whatever is necessary to put
and keep the tenant’s dwelling unit and premises in a fit and habitable condition,” it does
not create a tort remedy for personal injures
sustained as a result of a landlord’s breach of
those duties. It merely regulates the contractual
rights and obligations of the residential parties
and does not enlarge the landlord’s duty under
common law. See Okla.Stat. tit. 41, §§ 103(A) &
121 (2001).
¶14 Landlord and Contractor insist no duty
is owed to Tenant in light of the holdings
articulated in Godbey, 1939 OK 19, 86 P.2d 621,
and Alfe, 1937 OK 243, 67 P.2d 947. In Godbey,
the tenant-plaintiff sued the landlord-defenVol. 80 — No. 18 — 7/11/2009
dant for the drowning death of tenant-plaintiff’s infant son. The infant fell into an open
cistern located on the leased premises. Prior to
the accident, the tenant-plaintiff discovered the
open cistern which was concealed by tall
weeds. The doctrine of caveat emptor controlled because no lessor-lessee covenant to
repair existed, the tenant-plaintiff was in exclusive control of the demised premises, and the
tenant-plaintiff was aware of the condition’s
existence long before the fatal accident. 1939
OK 19, 86 P.2d 621.
¶15 Alfe presents a landlord’s failure to
adhere to the statutorily prescribed obligations
to lease a premises in a fit and habitable condition. In Alfe, the landlord leased residential
property to a tenant in a demised unhabitable
condition. Subsequently, the tenant was injured
as a result of the hazardous and dangerous
condition. That court however, held the only
liability imposed upon a landlord is derived by
statute and any remedies for breach of those
duties are confined exclusively to those enumerated therein. 1937 OK 243, 67 P.2d 947.
¶16 In the area of landlord tort liability, Oklahoma currently follows the common law
maxim of “caveat emptor,” which states:
the right of possession and enjoyment of
the leased premises passes to the lessee, in
the absence of concealment or fraud by the
landlord as to some defect in the premises
known to him and unknown to the tenant,
the rule of caveat emptor applies and the
tenant takes the premises in whatever condition they may be in, thus assuming
all risk of personal injury from defects
therein.
Godbey, 1939 OK 19, ¶ 5, 86 P.2d 621, 622 (quoting 110 A.L.R. 756 (1937)).
¶17 Over the years, Oklahoma has carved
out several exceptions to this rule. For instance,
in Buck v. Miller, 1947 OK 172, 181 P.2d 264,
this Court imposed liability on a landlord
where the landlord negligently made repairs or
improvements. See also Crane Co. v. Sears,
1934 OK 375, ¶ 28, 35 P.2d 916, 920. Next, this
Court attached liability to a landlord who
failed to maintain common areas under the
landlord’s control. In Arnold v. Walters, the
court noted that:
Where the owner of an apartment house
leases parts thereof to different tenants and
expressly or impliedly reserves other parts
thereof, such as entrances, halls, stairways,
1435
porches, walks, etc., for the common use of
different tenants it is the owners duty to
exercise reasonable care to keep safe such
parts of which he so reserves control, and if
he is negligent in this regard and a personal injury results by reason thereof to a
tenant, he is liable, provided the injury
occurs while such part of the premises is
being used in the manner intended.
1950 OK 198, ¶ 0, 224 P.2d 261.
¶18 And most recently, this Court’s jurisprudence pierced the “landlord immunity veil”
again finding a landlord liable when the landlord’s acts or omissions enabled a third party to
commit criminal acts upon a tenant in Lay v.
Dworman, 1986 OK 85, 732 P.2d 455. In Lay, the
plaintiff was assaulted and raped after an
intruder gained access to her apartment due to
a defective lock on a sliding glass door.
Although the tenant previously complained of
the defective lock on the sliding glass door, the
landlord failed to make the necessary repairs.
The Lay court imposed a duty upon the landlord “to use reasonable care to maintain the
common areas of the premises in such a manner as to insure that the likelihood of criminal
activity is not unreasonably enhanced by the
condition of those common premises.” Id. ¶ 9,
732 P.2d at 458. In so doing, the Lay court noted
that “the landlord faces potential liability when
the circumstances are such that a reasonable
man would realize that a failure to act would
render one relying on those actions susceptible
to criminal acts.” Id. ¶ 11, 732 P.2d at 459.
Therefore, any tenant injured as a result of a
landlord’s failure to act has no redress currently unless that tenant can successfully frame
a cause of action to fit into one of this Court’s
recognized exceptions. The end result discourages repairs and rewards inattentive landlords
with immunity from suit while impeding a
tenant’s recovery for a landlord’s utter disregard for a tenant’s health, safety, and welfare.
¶19 At present, Oklahoma’s adherence to the
caveat emptor doctrine obscures rather than
illuminates the proper considerations which
govern a court’s determination of a residential
landlord’s duty. Instead, reasonableness and
foresight should be paramount. No tenant’s
life or limb is less worthy of Oklahoma’s protection simply because the tenant is in possession of the landlord’s premises. It is unreasonable to allow a landlord to seek refuge under
the cloak of immunity after intentionally turning a deaf ear to a tenant’s pleas to make necessary repairs.
1436
¶20 Other jurisdictions have overruled the
caveat emptor doctrine as it relates to residential tenancies.4 In Young v. Garwacki, 402
N.E.2d 1045, the Supreme Judicial Court of
Massachusetts found a landlord liable for a
third-party’s personal injuries sustained in a
fall from a tenant’s second-story front porch
due to a defective railing. In that case, the tenant leased a second story unit as a tenant at
will. The unit contained a porch that was only
accessible from the tenant’s living room, which
was not under the landlord’s control. One evening, the tenant hosted a dinner party. The
tenant’s guest approached the porch railing
and leaned forward causing the railing to give
way. The guest fell two stories and was
injured.
¶21 Before the accident, the landlord’s insurance company advised the landlord that the
unit’s railing was dangerous and cancelled the
landlord’s liability insurance. The landlord
however, failed to make the necessary repairs
but purchased the repair materials and warned
the tenant of the danger. Although the landlord
made no express agreement to keep the premises in repair, the landlord testified that he
considered it his obligation to do so.
¶22 Prior to the Young decision, the prevailing rule in Massachusetts made the landlord
immune from suit for defects that existed on
the property at the time of the lease, unless the
landlord failed to warn of the hidden defects.
Id. at 1047. Absent an express agreement and
consideration, a landlord had no duty to keep
the premises in a safe condition. Any repairs
the landlord made subsequent to the lease,
were merely gratuitous and tort liability could
only attach if the repairs were made in a grossly negligent fashion. Id.
¶23 Recognizing the archaic nature of this
common law rule, the Massachusetts court did
an about-face and adopted a rule that required
a “landlord [to] act as a reasonable person
under all of the circumstances including the
likelihood of injury to others, the probable seriousness of such injuries, and the burden of
reducing or avoiding the risk.” Id. at 1049,
quoting Sargent v. Ross, 308 A.2d 528, 534
(1973).
IV.
¶24 The evolving nature of residential leases
demand the reformation of an archaic rule, and
today this Court supplants the caveat emptor
doctrine of landlord tort immunity. In its place,
this Court imposes a general duty of care upon
Vol. 80 — No. 18 — 7/11/2009
landlords to maintain the leased premises,
including areas under the tenant’s exclusive
control or use, in a reasonably safe condition.
This duty requires a landlord to act reasonably
when the landlord knew or reasonably should
have known of the defective condition and had
a reasonable opportunity to make repairs.
¶25 It is clear from the totality of the record
that Landlord knew or should have known
that the balcony railing was unsafe. Tenant
testified she reported the loose railing to the
“lady in the office” and neither Landlord nor
Contractor disputed this fact. However, Landlord remained complacent and failed to make
the necessary repairs or at a minimum, investigate Tenant’s concerns. Upon Tenant’s notice to
Landlord of the dangerous condition, Landlord had a duty to exercise reasonable care to
restore Tenant’s balcony to a safe condition. To
the extent that Godbey, Alfe, and other similar
cases are inconsistent with this Court’s finding
that a landlord owes a general duty of care to
the tenant, those cases are overruled.
¶26 This Court recognizes that the safety of
tenants is furthered by properly installing
guardrails and ensuring other protective devices are in sufficient working order. The expectation that a landlord act reasonably is inherent
in contemporary residential leases. One of
those legitimate expectations includes proper
installation and maintenance of a balcony
guardrail, especially when its predominate
function is to prevent a person from falling.
¶27 Moreover, the underlying safety considerations articulated in Lay, are present here.
Safety features such as “doors and window
locks, . . . alarm devices . . .[and as in the instant
case, balcony railings], directly relate to security.” Lay, 1986 OK 85, ¶ 11, 732 P.2d 455, 459.
Leasing a premises that is “inadequately
secured due to ineffective or defective materials. . .[creates] a duty on the part of the landlord to provide repairs or modifications. . .
upon notification of the defect by the tenant.
This duty arises from the landlord-tenant contract and from the implication that the landlord
is to provide services under the contract in a
diligent manner.” Id. ¶ 10, 732 P.2d at 458.
¶28 The landlord’s knowledge is key in triggering the duty to maintain the leased premises
in a reasonably safe condition. Although, the
landlord’s right to reenter areas of the leased
premises under the tenant’s exclusive control
are limited to the tenant’s consent, cases of
emergency, abandonment, or court injunctive
Vol. 80 — No. 18 — 7/11/2009
relief, Okla. Stat. tit. 41 §128(D)5, today’s pronouncement does not make the landlord an
insurer of the tenant’s safety. Rather, this Court
imposes a duty upon the landlord to act reasonably when the landlord knew or by the
exercise of reasonable diligence would have
known, of the defective condition, see Schlender
v. Andy Jansen Co., 1962 OK 156, ¶ 18, 380 P.2d
523, 527, and had a reasonable opportunity to
make repairs. Only in the presence of a duty
neglected or violated will a landlord’s negligence be actionable. By the same token, the
landlord’s liability, as any other tortfeasor, may
be reduced or absolved by the tenant’s contributory negligence. The question of liability
should be submitted to the jury to decide.
V.
¶29 The law is well-settled that a landowner
has a duty to keep the premises in a reasonably
safe condition, Jack Healey Linen Ser. Co. v.
Travis, 1967 OK 213, ¶ 5, 434 P.2d 924, 926-27,
and to warn others of any “hidden dangers,
traps, snares, pitfalls, and the like.” Id. ¶ 5, 434
P.2d at 926-27 (citing Henryetta Constr. Co. v.
Harris, 1965 OK 88, ¶ 3, 408 P.2d 522, 531-32
(Irwin, J., supplemental opinion on rehearing)).
Excepted from this duty is the necessity of protecting from dangers so “open and obvious” as
to reasonably expect others to detect them for
themselves. Id. ¶ 5, 434 P.2d 926-27 (citing Henryetta Constr. Co. v. Harris, 1965 OK 88, ¶ 7,
408 P.2d 522, 531-32 (Irwin, J., supplemental
opinion on rehearing)).
¶30 In the instant case, the lower court failed
to consider evidence that there were dangerous
latent defects in the guardrail. The Tenant provided evidence that the “balcony flooring was
cracked in the very spot where the railing
should have been attached on the bottom . . .,”
the railing joints and welds were rusted and
corroded, and several screws were missing —
all of which were unknown to Tenant. From the
evidence, a reasonable inference may be drawn
that the railing was not attached but merely
propped against the building wall. These latent
defects present material issues of fact which
preclude summary judgment. Additionally,
these facts are relevant to whether the dangerous condition was open and obvious and
whether such danger and risk was imperceptible to Tenant.
¶31 Despite Tenant’s familiarity with the
general physical condition of the railing, such
familiarity cannot transform a defective condition into an apparent appreciable risk.6 Jack
1437
Healey, 1967 OK 213, ¶ 9, 434 P.2d 924, 927.
Likewise, it does not follow that unknown hidden defects are open and obvious. The openness and obviousness of the dangerous condition and whether Tenant appreciated those risk
are questions for the jury. The trial court erred
in removing these issues from the jury’s consideration. Rogers v. Hennessee, 1979 OK 138,
602 P.2d 1033; Jack Healy, 1967 OK 213, 434
P.2d 924.
¶32 Moreover, this Court agrees with the
Court of Civil Appeals conclusion that Contractor’s sole reliance on the “no duty defense”
is misplaced. Like Landlord, Contractor focused
primarily on Tenant’s deposition testimony
that Tenant knew the railing was loose. Based
on Tenant’s testimony, Contractor asserts the
defective railing was open and obvious; and
therefore no duty is owed to Tenant. Contractor’s argument however, misperceives premises liability and the defenses contained therein.
Tenant’s cause of action against Contractor
stems from Contractor’s failure to construct
and install a safe balcony railing, not Contractor’s failure to warn of a hazardous condition
in the premises liability context. See Schlender
v. Andy Jansen Co., 1962 OK 156, 380 P.2d 523
(a contractor may be liable to a third-party for
negligent construction where the contractor
wilfully created a condition which by the exercise of ordinary diligence contractor would
have known of the condition’s existence). The
record does not demonstrate Contractor’s entitlement to a “no duty” defense based on an
open and obvious danger.
VI. CONCLUSION
¶33 Today this Court recognizes a landlord’s
duty to exercise reasonable care. We express no
opinion on whether Tenant may be able to ultimately recover against either Landlord or Contractor for negligence. However, because the
existence of disputed material facts remain as
to (1) whether the Landlord’s duty of care was
breached; and (2) the open and obvious character of the balcony railing so as to relieve Landlord and Contractor of liability, the orders
granting summary judgment are reversed.
VACATED; DISTRICT COURT’S JUDGMENT
REVERSED; AND MATTER REMANDED
CONCUR: Edmondson, C.J.; Kauger, Watt,
Colbert, Reif, JJ.
1438
DISSENT: Taylor, V.C.J.; Hargrave, Opala, Winchester, JJ.
Hargrave, J., with whom Taylor, V.C.J., Opala,
Winchester, JJ. join, dissenting
I would deny certiorari.
1. Satca, Ltd. is the parent company of River Chase Apartments,
FCM, and First Choice Properties, Incorporated.
2. Although Landlord asserted two bases for summary judgment,
Tenant addressed only one — that the Court of Civil Appeals “overrule
Godbey v. Barton, 1939 OK 19, 86 P.2d 621 . . . and similar cases
expressing the rule of landlord tort immunity.” That court viewed
Tenant’s request to be beyond its purview, and because Tenant failed
to challenge Landlord’s second defense — the open and obviousness
of the danger — summary adjudication in favor of Landlord was
affirmed.
3. Okla. Stat. tit. 41, § 118 states:
A. A landlord shall at all times during the tenancy:
1. Except in the case of a single-family residence, keep all common areas of his building, grounds, facilities and appurtenances
in a clean, safe and sanitary condition;
2. Make all repairs and do whatever is necessary to put and keep
the tenant’s dwelling unit and premises in a fit and habitable
condition;
3. Maintain in good and safe working order and condition all
electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators, supplied or required to be supplied by him;
4. Except in the case of one- or two-family residences or where
provided by a governmental entity, provide and maintain appropriate receptacles and conveniences for the removal of ashes,
garbage, rubbish and other waste incidental to the occupancy of
the dwelling unit and arrange for the frequent removal of such
wastes; and
5. Except in the case of a single-family residence or where the
service is supplied by direct and independently metered utility
connections to the dwelling unit, supply running water and
reasonable amounts of hot water at all times and reasonable
heat.
B. The landlord and tenant of a dwelling unit may agree by a conspicuous writing independent of the rental agreement that the tenant
is to perform specified repairs, maintenance tasks, alterations or
remodeling.
4. Idaho — Stephens v. Stearns, 678 P.2d 41, 50 (Idaho 1984)
(“adopt[ing] the rule that a landlord is under a duty to exercise reasonable care in light of all the circumstances” and stating that “[t]hose
questions of hidden danger, public use, control, and duty to repair,
which under the common-law were prerequisites to the consideration
of the landlord’s negligence, will now be relevant only inasmuch as
they pertain to the elements of negligence, such as foreseeability and
unreasonableness of the risk”); Nebraska — Tighe v. Cedar Lawn, Inc.,
649 N.W.2d 520, 529 (Neb. Ct. App. 2002) (“[Heins] abrogated the distinction between invitees and licensees and held that owners and
occupiers of land owe a general duty of reasonable care to all lawful
entrants. The Heins ruling was prospective, however, applying only to
actions arising after the August 23, 1996, ruling, whereas [the plaintiff’s] accident [falling into a well hole on the leased premises] occurred
on July 9, 1996. We do not consider how Heins might affect this case.”
(citing Heins v. Webster County, 552 N.W.2d 51 (Neb. 1996))); Nevada
— Turpel v. Sayles, 692 P.2d 1290, 1292-93 (Nev. 1985) (quoting Massachusetts, New Hampshire, and Wisconsin courts in deciding to
abandon the common law rule of caveat lessee); New Hampshire —
Sargent v. Ross, 308 A.2d 528, 534 (N.H. 1973) (“[W]e today discard the
rule of ‘caveat lessee’ and the doctrine of landlord nonliability in tort
to which it gave birth. . . . Henceforth, landlords as other persons must
exercise reasonable care not to subject others to an unreasonable risk of
harm.”); New Jersey — Anderson v. Sammy Redd and Associates, 650
A.2d 376, 379 (N.J. Super. Ct. App. Div. 1994), cert. denied, 655 A.2d 444
(N.J. 1995) (“Like any other individual, a landlord may be adjudged
negligent if, under all the circumstances, he failed to act as a reasonably prudent person, and such failure was a proximate cause of the
alleged injury.”); New Mexico — Gourdi v. Berkelo, 930 P.2d 812, 81416 (N.M. 1996) (stating that “a landlord is bound by the standard of
ordinary care, and must, prior to leasing the premises, remedy such
dangerous conditions as an inspection conducted with ordinary care
would reveal” and that “[a] tenant is entitled to exclusive occupancy
[of leased premises] during the term of the tenancy, and it is [the tenant’s] duty, if the premises get out of repair, to notify the landlord of
their defective condition”)(citations omitted); Utah — Williams v.
Melby, 699 P.2d 723, 726 (Utah 1985) (“[T]his court has charged land-
Vol. 80 — No. 18 — 7/11/2009
lords with a duty to exercise reasonable care toward their tenants in all
circumstances.”); Vermont — Favreau v. Miller, 591 A.2d 68, 72 (Vt.
1991) (citing Sargent v. Ross, 308 A.2d 528, 534 (N.H. 1973)) (“hold[ing]
that Vermont landlords too may be held liable for exposing their tenants to unreasonable risks of harm in the leased premises, whether or
not they retain “control” of the dangerous condition”); Wisconsin —
Pagelsdorf v. Safeco Ins. Co. of Am., 284 N.W.2d 55, 56 ( Wis. 1979)
(“Abrogating the landlord’s general cloak of immunity at common
law, we hold that a landlord must exercise ordinary care toward his
tenant and others on the premises with permission.”).
5. Okla. Stat. tit. 41, § 128, Consent of Tenant for Landlord to Enter
Dwelling Unit — Emergency Entry — Abuse of Right of Entry —
Notice — Abandoned Premises — Refusal of Consent, states:
A. A tenant shall not unreasonably withhold consent to the landlord, his agents and employees, to enter into the dwelling unit in
order to inspect the premises, make necessary or agreed repairs,
decorations, alterations or improvements, supply necessary or
agreed services or exhibit the dwelling unit to prospective or
actual purchasers, mortgagees, tenants, workmen or contractors.
B. A landlord, his agents and employees may enter the dwelling
unit without consent of the tenant in case of emergency.
C. A landlord shall not abuse the right of access or use it to harass
the tenant. Except in case of emergency or unless it is impracticable to do so, the landlord shall give the tenant at least one (1)
day’s notice of his intent to enter and may enter only at reasonable times.
D. Unless the tenant has abandoned or surrendered the premises, a landlord has no other right of access during a tenancy
except as is provided in this act or pursuant to a court order.
E. If the tenant refuses to allow lawful access, the landlord may
obtain injunctive relief to compel access or he may terminate the
rental agreement.
6. As the Jack Healey court noted:
Plaintiff’s familiarity with the general physical condition which
may be responsible for her injury does not of itself operate to
transform the offending defect into an apparent and obvious
hazard. Mere knowledge of the danger without full appreciation
of the risk involved is not sufficient to bar plaintiff’s right of
recovery. . . .While the general physical condition might be familiar to the actor, a particular risk from the known defect could
nevertheless, under the circumstances of a given occasion, be
incapable of appreciation. If, as here, conflicting inferences may
be drawn from the facts and circumstances in evidence as to
whether the offending hazard did have a ‘deceptively innocent
appearance’, or its extent could not be anticipated, neither the
trial court nor this court may declare that the peril was obvious
and apparent and that recovery is precluded as a matter of law.
The question is one for the jury. . ..
1967 OK 213, ¶ 9, 434 P.2d 924, 927-28.
2009 OK 48
RICHARD BOWMAN and DANA
BOWMAN Plaintiffs/Appellants v.
MICHAEL PRESLEY; HEIDI PRESLEY;
LINDA PRESLEY and CENTURY 21
BOB CROTHERS REALTY, INC.
Defendants/Appellees.
No. 105,727. June 30, 2009
ON CERTIORARI TO THE
COURT OF CIVIL APPEALS, DIV. I
¶0 Buyers of a home, claiming the amount of
square footage of the house they had recently
purchased had been misrepresented to them,
brought an action against the sellers of the
house, the real estate broker, and the real estate
sales associate. The buyers sought damages,
alleging fraud on the part of all defendants
along with violation of the Oklahoma Real
Estate License Code by the broker and sales
associate. Upon motions by defendants’ counVol. 80 — No. 18 — 7/11/2009
sel, the District Court, Pottawatomie County,
Douglas L. Combs, Judge, gave summary judgment to the defendants. The Court of Civil
Appeals, Division I, affirmed that disposition.
On certiorari granted upon plaintiff’s petition,
THE COURT OF CIVIL APPEALS’ OPINION
IS VACATED; THE TRIAL COURT’S SUMMARY DISPOSITION IS REVERSED; AND
THE CAUSE IS REMANDED FOR FURTHER
PROCEEDINGS TO BE CONSISTENT WITH
TODAY’S PRONOUNCEMENT.
Jeff L. Hartmann, Kerr, Irvine, Rhodes & Ables,
Oklahoma City, Oklahoma, for Plaintiffs/
Appellants.
Jon D. Flowers, Shawnee, Oklahoma, for Defendants/Appellees Michael and Heidi Presley.
Hugh A. Baysinger, Kimberly A. Stevens,
Pierce, Couch, Hendrickson, Baysinger &
Green, for Defendants/Appellees Century 21
Bob Crothers Realty, Inc. and Linda Presley.1
OPALA, J.
¶1 The dispositive issue tendered on certiorari is whether summary judgment was erroneously given to the defendant realtors and sellers. We answer this question in the affirmative.
A buyer of real property may rely upon the
positive representations of realtors and sellers
about the size of the property to be conveyed.
When a realtor or seller of real property makes
material representations to a purchaser about
the property’s size, a determination of whether
those representations were fraudulently or
substantially misrepresented and whether the
purchaser may have thereby been harmed lie
within the arena of disputed facts to be found
by trial of the issues. In holding that plaintiffs
could not prove fraud as a matter of law and
affirming summary judgment, the Court of
Civil Appeals (COCA) erred. The presence of
disputed material facts in this litigation makes
summary relief impermissible. We hence vacate
the appellate court’s opinion and reverse the
trial court’s disposition.
I.
ANATOMY OF THE LITIGATION
¶2 On 30 September 2005 Richard and Dana
Bowman (Buyers) purchased a house in Shawnee, Oklahoma from Michael and Heidi Presley (Sellers) for $145,000. Linda Presley (Realtor), a Century 21 Bob Crothers Realty (Broker)
sales associate and the mother of seller Michael
Presley, acted as the listing and selling agent.
The house sold to Buyers was represented as
1439
containing 2890 square feet. Buyers give a
straightforward reason for buying the house:
they wanted a larger home, and Sellers
appeared to offer a residence more sizeable
than that Buyers then occupied.2 Buyers contend the represented square footage of the
house not only spurred their desire to buy the
home, but also served as the criterion for calculating the $145,000 purchase price.3 The house’s
true size, and whether that size may have been
misrepresented to Buyers by Realtor and Sellers, lies at the very center of this litigation.
¶3 Buyers’ satisfaction with their newly
acquired house ended abruptly when shortly
after closing on the home Buyers received a
copy of a mortgage appraisal prepared by
Grace and Sons Appraisal Service (Grace).
The appraisal gave the actual size of the house
not as 2890, but rather as 2187 square feet: a
difference of 703 square feet below the size
represented to Buyers. Following this discovery, Buyers obtained from Grace a copy of
another appraisal made by them when seller
Michael Presley first purchased the house in
2000. This appraisal also gave the home’s size
as 2187 square feet.4 Buyers brought suit
against Broker, Realtor, and Sellers for damages based on allegations of fraud, breach of
implied contract and, as against Broker and
Realtor, for violation of the Oklahoma Real
Estate License Code.5
¶4 Broker and Realtor moved for summary
judgment and Sellers likewise sought that disposition shortly afterwards. Movants argued
that Buyers’ reliance on the representation of
size was misplaced, urging instead that prior
to purchase Buyers bore a duty independently
to determine the property’s correct size.6 Movants also claimed that Buyers waived their
right to sue by signing the purchase contract7
and closing agreement,8 the provisions of which
are represented as precluding suit against movants. Finally, movants asserted that Buyers suffered no actual damages, regardless of whether
the size was in fact misrepresented, because
Buyers’ mortgage appraisal ultimately valued
the home at an amount greater than its purchase price despite the diminished size.9 Movants argued that the alleged absence of damages should defeat Buyers’ legal claim.
¶5 The trial court gave summary judgment
to all defendants. The Court of Civil Appeals,
Division I, affirmed. We granted certiorari to
clarify the relative duties of buyers and sellers
of real estate and their agents when positive
1440
representations are made about the size of
property to be conveyed.
II.
STANDARD OF REVIEW
¶6 Summary process — a special pretrial
procedural track pursued with the aid of
acceptable probative substitutes10 — is a search
for undisputed material facts which, without
resort to forensic combat, may be utilized in
the judicial decision-making process.11 A court
may grant summary judgment only when neither genuine issues of material fact nor any
conflicting inferences that may be drawn from
uncontested facts are in dispute and the law
favors the moving party’s claim or liabilitydefeating defense as a result of which the moving party becomes entitled to judgment as a
matter of law.12 Only those evidentiary materials which eliminate from trial some or all fact
issues on the merits of the claim or of the
defense afford legitimate support for a trial
court’s use of summary process for a claim’s
adjudication.13
¶7 The purpose of summary process is not to
deprive parties of their right to have the disputed facts of the case tried by a jury, but
rather to decide the legal sufficiency of the evidentiary materials presented to determine
whether a triable case is tendered.14 The use of
summary process may not be extended to
swallow triable issues of fact. Inclusion of the
latter within that process would violate the
state’s fundamental right to both a trial by
jury at common law and due process by orderly trial before a court in equity.15 The scalpel of
summary judgment may be wielded to terminate litigation only when, as a matter of law,
no material facts offered by the parties are in
discord.
¶8 Issues in summary process stand before
us for de novo review.16 All facts and inferences
in a summary proceeding must be viewed in
the light most favorable to the non-movant.17
Just as trial courts must decide whether summary judgment is proper in the first instance,
so too must appellate courts undertake an
independent and non-deferential de novo review
when testing the legal sufficiency of all evidentiary materials proffered by the parties in their
quest for or in the defense against summary
relief.18 If no material fact or inference derived
from the materials stands in dispute, the movant is entitled to summary judgment if the law
favors the moving party’s claim or liabilitydefeating defense.
Vol. 80 — No. 18 — 7/11/2009
III.
THE COURT OF CIVIL APPEALS’
OPINION AND THE PARTIES’
ARGUMENTS ON CERTIORARI
¶9 The Court of Civil Appeals (COCA)
affirmed the decision of the trial court. COCA
concluded that Buyers had offered no evidentiary materials showing they had suffered any
detriment from the misrepresentation, if any
there was, because the value of their home was
later appraised at an amount greater than its
purchase price. Finding this fact dispositive of
the lawsuit, COCA held as a matter of law that
the supposed inability of Buyers to prove damages raised an insurmountable barrier to maintaining a claim for fraud19 because damages
constitute an indispensable element of that
claim.
¶10 On certiorari, Buyers urge that (a) COCA
erred in finding that Buyers suffered no detriment as a result of the misrepresentation and
(b) the statutory directive of the Oklahoma
Real Estate License Code20 requires a real estate
licensee not to make substantial misrepresentations about a property’s size. Buyers claim that,
to the extent they did not receive the very
square footage for which they bargained, they
have suffered injury because of appellees’
misrepresentations and are hence entitled to
damages.
¶11 Broker, Realtor, and Sellers, for their part,
contend that COCA correctly affirmed summary judgment because (a) Buyers are unable
to satisfy the elements required to prove fraud
as a matter of law, (b) the language of the purchase contract serves as a waiver barring Buyers’ recovery, and (c) the doctrine of caveat
emptor 21 applies, imposing on Buyers the burden of ascertaining the true size of the property
before purchasing it.
IV.
THE EXISTENCE OF DISPUTED
MATERIAL FACTS MAKES SUMMARY
RELIEF IMPERMISSIBLE
A.
THE QUESTION OF DAMAGES REMAINS
IN DISPUTE AND MUST BE RESOLVED
BY THE TRIER OF FACT
¶12 In an action for fraud damages are rooted in the natural and probable consequences of
the acts charged, not by the stand-alone fact
that fraud was perpetrated.22 To avoid summary judgment Buyers must advance proof
Vol. 80 — No. 18 — 7/11/2009
from which a trier of fact could reasonably
infer not only a deception, but detriment suffered because of the deception’s occurrence.
Buyers have satisfied that requirement here.
¶13 The common law, which remains in force
unless a legislative enactment expressly states
otherwise,23 provides the elements of actionable fraud:24 1) a false material misrepresentation, 2) made as a positive assertion which is
either known to be false or is made recklessly
without knowledge of the truth, 3) with the
intention that it be acted upon, and 4) which is
relied on by the other party to his (or her) own
detriment.25 Fraud is never presumed and each
of its elements must be proved by clear and
convincing evidence.26 Though correctly recognizing a genuine issue of fact concerning
whether Buyers were deceived by appellees’
misrepresentations, COCA erred in affirming
summary judgment based upon a perceived
lack of damages. Buyers have presented evidentiary materials sufficient to tender a disputed issue of fact with respect to damages.
¶14 The material controversy hinges upon
the true nature of the bargain struck by Buyers
in purchasing Sellers’ home. In support of their
claim for damages, Buyers correctly advance
the “benefit of the bargain” doctrine. This rule
of recovery, adopted in Oklahoma as a measure
of damages in fraud cases, allows a plaintiff to
recover the difference between the actual value
received and the value the defrauded party
would have received had the value actually
been as represented.27 In today’s case, Buyers,
while affirming their contract despite the
misrepresentation, seek to recover the benefit
of the bargain to which they believe they are
entitled.
¶15 Buyers desire to obtain that value for
which they in fact were bargaining when they
purchased Sellers’ home. No single, clear, and
undisputed answer to this question can be
drawn from the parties’ evidentiary substitutes found in the record. Resolution of this
uncertainty is a task that must fall upon the
trier of fact. In short, based upon the record
no one can properly conclude that damages
remain unprovable as a matter of law.
¶16 Buyers claim they bargained for a house
containing 2890 square feet, to be obtained for
a price ($145,000) calculated at an agreed-upon
amount ($50) per square foot. In receiving
instead a house appraised as having only 2187
square feet, Buyers argue they have been damaged to the extent the square footage received
1441
by them falls short of the square footage represented to them — a gap of 703 square feet,
almost 25% less than advertised. Looking to
the asserted measure of the house’s purchase
price — $50 per square foot — Buyers compute
the amount of their injury at $35,150 — the
value of the missing 703 square feet which
were represented by Broker, Realtor, and Sellers, were paid for by Buyers at $50 per square
foot, but not thereafter received.
¶17 Appellees dispute Buyers’ characterization of a bargain driven by square footage.
Rather, appellees claim Buyers simply bargained for a home valued at and purchased for
$145,000, not a home with 2890 square feet valued at $50 per square foot. Appellees argue
that a house’s size is but one of numerous factors taken into consideration when deciding
whether to purchase a home. Appellees urge
that Buyers’ specific emphasis on square footage cannot be sufficiently demonstrated to
support a finding of damages. More importantly, appellees attach overriding significance
to the fact that, despite the diminished size
appraisal of 2187 square feet, the later appraised
value of the home ($146,697) nevertheless
exceeded the purchase price. For this reason
appellees assert that far from suffering injury,
Buyers have in fact received more than was
represented to them.
¶18 The question of damages cannot be
resolved based upon the estimations of value
contained in the mortgage appraisal alone. An
appraisal can give only an approximate value
that is perceived by its author. Appraisals
merely offer scenarios suggesting what a thing
might be worth, not infallible indicia of fixed
categorical worth. The precise value of the
thing in litigation must be determined by the
trier of fact. The jury is the sole and final arbiter. Because any appraisal that antedates the
jury’s verdict is but an item of evidence, the
increased home value indicated by the mortgage appraisal, though probative of damages,
is not dispositive of the issues. Neither are the
appraisals of square footage in themselves conclusive evidence of damage. Buyers need not
explicitly controvert the mortgage appraisal’s
value estimate to raise a conflicting inference
as to damages. Inconsistent appraisals of
square footage define this litigation. The fact
that two conflicting appraisals emanate from
the same source — Grace, a professional
appraiser — only clouds the issues to be
considered.
1442
¶19 The existence of significantly disparate
appraisals of size raises a reasonable inference
that appraisals of value might be similarly
inconsistent, especially since no real certainty
exists about the house’s actual size, which will
be linked inextricably to its value. Summary
judgment is proper only when undisputed
material facts support but a single inference
that favors a movant’s quest for relief.28 Amid
a barrage of warring appraisals of size, appellees may not rely on a single assessment of
value taken from a source that has only contributed to the uncertainty to prove Buyers
have suffered no detriment.
¶20 The fact that Buyers purchased a house
advertised as double the size of their former
home raises a sufficient countervailing inference suggesting Buyers were at least in some
part motivated to purchase Sellers’ home
because of its greater size. The extent to which
this motivation possibly drove towards or even
defined the bargain struck by Buyers and Sellers cannot be discerned from the record alone.
The question must be resolved by the trier of
fact.
¶21 In our review of summary process this
court must assess all facts and inferences raised
by a motion for summary judgment in the light
most favorable to the non-moving party.29 The
record offers no evidentiary materials compelling enough to leave but a single inference in
Sellers’ favor.30 It is not for this court to opine
on the relative merits of the parties’ arguments
on damages or to speculate on their eventual
fate upon trial. We hold simply that because
neither party has presented evidentiary materials sufficient to place the damages question
beyond dispute, summary relief is inappropriate here.
B.
OKLAHOMA REAL ESTATE LICENSEES
HAVE A DUTY NOT TO MAKE
SUBSTANTIAL MISREPRESENTATIONS
IN THE CONDUCT OF BUSINESS AND
MAY BE HELD LIABLE FOR SUCH
MISREPRESENTATIONS
¶22 In addition to their claim of fraud, Buyers also allege that Broker and Realtor violated
provisions of the Oklahoma Real Estate License
Code (the Code)31 by misrepresenting the size
of Sellers’ home. The license of an Oklahoma
real estate licensee may be suspended or
revoked for:
Vol. 80 — No. 18 — 7/11/2009
Making substantial misrepresentations or
false promises in the conduct of business,
or through real estate licensees, or advertising, which are intended to influence, persuade, or induce others;***
59 O.S. 2001 § 858-312(2) or for:
Any other conduct which constitutes
untrustworthy, improper, fraudulent, or
dishonest dealings.
59 O.S. 2001 § 858-312(8).
Real estate licensees also have an affirmative
duty “[t]o treat all parties with honesty and
exercise reasonable skill and care.” 59 O.S.
Supp. 2005 § 858-354(B)(1).
¶23 Broker and Realtor, for their part, urge
that any misrepresentation of size was neither
substantial nor intentionally deceptive, claiming reliance upon the figure provided by the
Pottawatomie County Assessor’s office and
pointing also to the disclaimer in the Multiple
Listing Service (MLS) description and the waivers in the purchase contract and closing agreement. Moreover, Broker and Realtor argue for
the continued relevance and applicability of
the doctrine of caveat emptor, maintaining that
the ultimate duty of determining the correct
square footage properly devolves upon
Buyers.
¶24 For reasons explained in Part IV-C of this
opinion, sellers of real property and their
agents may not resort to the doctrine of caveat
emptor to avoid liability for fraudulent misrepresentations made to purchasers about the size
of property to be conveyed. We also dispense
with appellees’ contention that Buyers waived
their right to pursue a claim through the terms
of the purchase contract and closing agreement. Buyers allege fraud in the making of the
contract. A whisper of fraud can topple the pillars of even the most impregnable contract, for
to base a contract upon fraud is to build it upon
sand. This court has repeatedly stated that:
The purpose and effect of the evidence
introduced in the case at bar is not to contradict or vary the terms of the written
contract, but to show that the plaintiff was
imposed upon, and the fraud was practiced in obtaining his signature thereto.
Fraud vitiates everything it touches, and a
contract obtained thereby is voidable. And
evidence is always admissible to show
that contracts have been fraudulently
obtained.32
Vol. 80 — No. 18 — 7/11/2009
We honor this rule because “the public policy
fostering the certainty and stability of contracts
gives way to the public policy against fraud.”33
¶25 To define the parameters of a real estate
licensee’s duties when making material representations to purchasers, we turn to the relevant language of the Code pertaining to a
licensee’s obligation to deal honestly with all
parties to a real estate transaction. The terms of
59 O.S. Supp. 2005 § 858-354(B)(1) expressly
command that a licensee “shall***treat all parties with honesty and exercise reasonable skill
and care,” and the provisions of 59 O.S. 2001
§ 858-312 implicitly achieve the same purpose
by authorizing professional disciplinary action
for the making of, among other things, “substantial misrepresentations or false promises.”34
¶26 This essential obligation of truthfulness
operates independently of, though not always
separately from, a heightened professional
duty to confirm the accuracy of representations
made about things offered for sale. Significantly, Buyers have not brought actions against
Broker and Realtor for professional negligence,
but rather for fraud and violations of a Code
whose provisions are defined by a responsibility to avoid fraudulent conduct. This court has
previously declined, under facts distinguishable but not dissimilar from those in the present case, to impose upon real estate licensees
“an independent, higher standard of care to
investigate property offered for sale” in suits
brought against brokers and realtors claiming
professional negligence.35
¶27 Because Buyers’ arguments are anchored
in an action for fraud, we do not today reach
the question of whether a real estate licensee
bears a heightened duty independently to
ascertain the size of a property represented to
potential purchasers, the breach of which
would support a cause of action for professional negligence. In this case the relevant duty
of a real estate licensee is to treat all parties
with honesty. A licensee may incur liability for
failure to uphold that duty when lay persons
such as Buyers rely upon their representations
made as licensed professionals. The question of
whether Broker and Realtor represented the
property size reasonably, recklessly, or with
intentional dishonesty must be resolved by the
trier of fact.
C.
A BUYER OF REAL PROPERTY MAY RELY
UPON THE POSITIVE REPRESENTATIONS
OF SELLERS AND THEIR AGENTS
1443
ABOUT THE SIZE OF PROPERTY TO BE
CONVEYED, EVEN THOUGH THE
BUYER’S INVESTIGATION COULD HAVE
REVEALED THE NONEXISTENCE OF THE
MATERIAL FACT REPRESENTED
¶28 The common-law doctrine of caveat emptor does not reach situations where a purchaser
of real property has relied upon a positive representation of material fact. A representation of
size, such as a firm figure of square footage,
constitutes a statement of material fact the
assertion of which serves as a positive assurance upon which a purchaser may rely without
being compelled independently to determine
the truth or falsity of the fact represented.36 The
very fact of the material representation is itself
enough to justify a buyer’s reasonable reliance
upon its accuracy. Appellees argue that Buyers
had a duty to investigate, measure, or otherwise confirm the home’s square footage prior
to purchase. Appellees insist that, because the
home was open to Buyers’ inspection, Buyers
could not unblinkingly accept the representations of appellees as true without verification
and then claim afterwards to have been
deceived. Though the doctrine of caveat emptor
remains viable in Oklahoma in certain instances, its application to this case is inapposite.
Appellees’ reliance on the defense is
misplaced.
¶29 This court’s jurisprudence allows the
doctrine of caveat emptor to bar recovery for
fraudulent misrepresentation only in cases
where the reasonably diligent purchaser of
property would have uncovered some obvious
defect or discerned the falseness of some misleading opinion offered as to the property’s
value. We have thus limited the doctrine’s
application to cases involving a plaintiff’s
unjustified reliance on: 1) misrepresentations
of patent defects37 whose existence reasonably
could have been discovered when the plaintiff
inspected the property38 and 2) representations
of value typically offered in the form of a seller’s self-serving and frequently speculative
opinion.39
¶30 The representation of a building’s dimensional size, capable of precise expression in
square feet, involves neither a readily discoverable defect or flaw nor “the mere expression of
an opinion.”40 It is a statement of material fact.
A buyer of property may rely on its accuracy
because the making of the clear and unequivocal assurance itself discourages buyers from
conducting additional investigation.41 To
declare otherwise would permit a seller to fab1444
ricate plausible material “facts” and then avoid
liability for the misrepresentations by later
recasting them as mere “opinions” that the
buyer should never have believed.42 In a claim
of fraud, the real question is not whether a
buyer was somehow unwise to rely on a representation of material fact, but whether the
buyer “was in fact deceived by the representation.”43 The question falls into the realm
reserved for the trier of fact.
V.
SUMMARY
¶31 Buyers of real property may rely on
positive representations made by realtors and
sellers about the property’s size. Representations of the size of real property are statements
of material fact, not expressions of opinion,
and a buyer need not conduct a separate investigation to ascertain their truth. If the buyer
later alleges fraudulent misrepresentation
against the realtor or seller, questions of whether the buyer was in fact deceived and suffered
detriment because of the misrepresentation
must be decided by the trier of fact. A real
estate licensee is in such instances also bound
by a professional duty to treat all parties with
honesty.
¶32 A real property appraisal is not an incontestible scientific verity that may be accepted in
summary process as rising to the level of an
undisputed fact proffered by evidentiary materials. Raised against the plaintiffs’ quest for
trial is nothing more than a set of legal arguments. These are dressed up to look as though
they were resolving fact issues. But the latter
will not vanish when driven solely by legal
rhetoric. They must be settled by trial. The contentions of Sellers do not by themselves give
support to summary judgment, and the issues
raised by Buyers cannot be resolved by summary process. The existence of disputed material facts that call for resolution of issues makes
summary relief impermissible. The use of summary process may not be extended to swallow
triable issues of fact. Inclusion of the latter
within that process would violate the state’s
fundamental right to both a trial by jury at
common law and due process by orderly trial
before a court in equity.44
¶33 On certiorari granted upon plaintiff’s
(Buyers’) petition, the Court of Civil Appeals’
opinion is vacated; the trial court’s summary
disposition is reversed; and the cause is
remanded for further proceedings to be consistent with today’s pronouncement.
Vol. 80 — No. 18 — 7/11/2009
¶34 Edmondson, C.J., Taylor, V.C.J., Hargrave, Opala, Watt, Winchester, Colbert and
Reif, JJ., Concur.
¶35 Kauger, J., Not Participating.
1. Identified herein are only those counsel for the parties whose
names appear on the certiorari briefs.
2. Sellers’ house is a two-story dwelling. At the time of purchase,
Buyers lived in a one-story home containing 1398 square feet. At the
time of contracting, Realtor was simultaneously engaged in representing Buyers in the sale of their own home. Buyers allege they obtained
an appraisal of their one-story home at Realtor’s behest as a prerequisite to listing their house for sale.
3. Though the contract itself is silent on the method of calculation,
Buyers offer evidentiary material suggesting they arrived at the purchase price by multiplying an agreed-upon price per square foot ($50)
by the house’s represented square footage (2890 square feet), by which
method Buyers and Sellers reached the $145,000 purchase price. The
COCA opinion observes that this is a “rounded” amount: the actual
figure computes to $144,500. The house had originally been listed for
sale at $149,500.
4. Afterwards, Sellers produced yet another Grace appraisal. This
appraisal also dated from 2000 but instead gave the size as 2468 square
feet, an amount 422 square feet shy of the total represented to Buyers.
The morass of dueling appraisals is compounded by the fact that the
Pottawatomie County Assessor’s office gave the house’s square footage as 2890 at all times the house was listed for sale. Realtor and Sellers
vigorously maintain this is the figure upon which they exclusively
relied in representing the property’s size.
5. 59 O.S. 2001 §§ 858-101 et seq.
6. Movants note that the property’s Multiple Listing Service (MLS)
description — one of the materials representing the house as having
2890 square feet — contains a disclaimer, albeit in fine print, stating
that “This information is deemed reliable, but not guaranteed.” Buyers
point to the absence of any such warning in the property’s advertisement in the local Shawnee News-Star’s “Home Finder” section, which
also represents the size as 2890 square feet.
7. The relevant terms of the purchase contract are as follows:
3. CONDITION OF PROPERTY:
***
(h)***Buyer is purchasing the Property based on Buyer’s own
inspection, unless waived, and NO WARRANTIES are expressed
or implied by [Broker and licensees] that shall be deemed
to survive the Closing in reference to the condition of the
Property***.
***
15. DISCLAIMER AND INDEMNIFICATION: It is expressly
understood by Seller and Buyer that [Broker and licensees] do
not warrant the present or future value, size by square footage,
condition, structure, or structure systems of the Property or any
building, nor do they hold themselves out to be experts in quality, design and construction. Seller and Buyer shall hold [Broker
and licensees] harmless in the event of losses, claims or demands
by or against Seller or Buyer.***
(emphasis added).
8. The relevant terms of the closing agreement are as follows:
1. Inspection. Buyer has either inspected the Property in accordance with the Contract or by acceptance of the Deed to the
Property. Buyer waives Buyer’s right to inspect. In either event,
the Property is accepted in its present condition.
***
3. Waiver and Release. Buyer hereby waives all claims to repair,
replace, or remedy any defects in the Property and does hereby
forever release and discharge the Seller, Century 21 Bob Crothers
Realty (the “Listing Broker”), and Century 21 Bob Crothers
Realty (the “Selling Broker”), their respective affiliated licensees,
employees, representatives from all claims, demands, charges,
losses, and liability whatsoever arising out of the contract and
from the purchase of the Property.***
9. Buyers’ mortgage appraisal prepared by Grace appraised the
house’s size as 2187 square feet (703 square feet less than that represented at sale) but its value as $146,697 ($1697 greater than the purchase price).
10. “’Acceptable probative substitutes’ are those which may be
used as ‘evidentiary materials’ in the summary process of adjudication.” Jackson v. Okla. Mem’l Hosp., 1995 OK 112, ¶ 15 n.35, 909 P.2d
765, 773 n.35. See also Seitsinger v. Dockum Pontiac, Inc., 1995 OK 29,
¶¶ 16-17, 894 P.2d 1077, 1080-81; Davis v. Leitner, 1989 OK 146, ¶ 15,
782 P.2d 924, 927.
11. The focus in summary process is not on the facts which might
be proven at trial, but rather on whether the evidentiary material in the
Vol. 80 — No. 18 — 7/11/2009
record tendered in support of summary disposition reveals only undisputed material facts supporting but a single inference that favors the
movant’s quest for relief. Polymer Fabricating, Inc. v. Employers Workers’ Comp. Ass’n, 1998 OK 113, ¶ 8, 980 P.2d 109, 113; Hulsey v. MidAmerica Preferred Ins. Co., 1989 OK 107, ¶ 8 n.15, 777 P.2d 932, 936
n.15.
12. In determining the appropriateness of summary relief, the
court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, and answers to interrogatories, as well as
other evidentiary materials which are offered in acceptable form without objection from other parties or are admitted over the challenging
exception. Polymer Fabricating, Inc. v. Employers Workers’ Comp.
Ass’n, supra note 11, at ¶ 8, at 113. See also Seitsinger v. Dockum Pontiac, Inc., supra note 10, at ¶¶ 16-17, at 1080-81.
13. Russell v. Bd. of County Comm’rs, 1997 OK 80, ¶ 7, 952 P.2d
492, 497. See also Gray v. Holman, 1995 OK 118, ¶ 11, 909 P.2d 776,
781.
14. See State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003
OK 29, ¶ 14 n.31, 66 P.3d 432, 440 n.31; Bowers v. Wimberley, 1997 OK
24, ¶ 18, 933 P.2d 312, 316; Stuckey v. Young Exploration Co., 1978 OK
128, ¶ 15, 586 P.2d 726, 730. “No one is entitled in a civil case to trial by
jury, unless and except so far as there are issues of fact to be determined.” In re Peterson, 253 U.S. 300, 310, 40 S. Ct. 543, 546, 64 L. Ed.
919 (1920).
15. Art. 2 § 19 and Art. 2 § 7, Okla. Const.
16. An order granting summary relief, in whole or in part, disposes
solely of questions of law, reviewable by a de novo standard. Brown v.
Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321. “Issues of law are
reviewable by a de novo standard and an appellate court claims for
itself plenary independent and non-deferential authority to reexamine
a trial court’s legal rulings.” Kluver v. Weatherford Hosp. Auth., 1993
OK 85, ¶ 14, 859 P.2d 1081, 1084 (citing Salve Regina Coll. v. Russell, 499
U.S. 225, 231, 111 S. Ct. 1217, 1221, 113 L. Ed. 2d 190 (1991)).
17. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.
18. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743
P.2d 682, 685 (approved for publication by the Oklahoma Supreme
Court).
19. The COCA opinion did not reach the issue of alleged violations
of the Oklahoma Real Estate License Code, 59 O.S. 2001 §§ 858-101 et
seq., supra note 5.
20. 59 O.S. 2001 §§ 858-101 et seq., supra note 5.
21. The doctrine of caveat emptor, from the Latin “let the buyer
beware,” holds with deceptive simplicity that “purchasers buy at their
own risk.” Black’s Law Dictionary at 236 (8th ed. 2004).
22. LeFlore v. Reflections of Tulsa, Inc., 1985 OK 72, ¶ 31, 708 P.2d
1068, 1076; McGuigan v. Harris, 1968 OK 58, ¶ 11, 440 P.2d 680, 682;
Sharp v. Keaton, 1926 OK 335, ¶ 0, 245 P. 852 (First Syllabus by the
Court).
23. 12 O.S. 2001 § 2.
24. Though the language of 12 O.S. 2001 § 2009(B) provides the
statutory directive for pleading allegations of fraud in Oklahoma
courts, the elements necessary to prove fraud derive from the traditional common-law requirements. Gay v. Akin, 1988 OK 150, ¶ 7, 766
P.2d 985, 989.
25. Rogers v. Meiser, 2003 OK 6, ¶ 17, 68 P.3d 967, 977; Dawson v.
Tindell, 1987 OK 10, ¶ 5, 733 P.2d 407, 408.
26. Rogers v. Meiser, supra note 25, at ¶ 17, at 977; Brown v. Founders Bank and Trust Co., 1994 OK 130, ¶ 12 n.17, 890 P.2d 855, 862 n.17;
Tice v. Tice, 1983 OK 108, ¶ 8, 672 P.2d 1168, 1171. “Actual fraud is
always a question of fact.” 15 O.S. 2001 § 60.
27. LeFlore v. Reflections of Tulsa, Inc., supra note 22, at ¶ 36, at
1077 (citations omitted).
28. Polymer Fabricating, Inc. v. Employers Workers’ Comp. Ass’n,
supra note 11, at ¶ 8, at 113; Hulsey v. Mid-America Preferred Ins. Co.,
supra note 11, at ¶ 8 n.15, at 936 n.15.
29. Carmichael v. Beller, supra note 17, at ¶ 2, at 1053.
30. Polymer Fabricating, Inc. v. Employers Workers’ Comp. Ass’n,
supra note 11, at ¶ 8, at 113; Hulsey v. Mid-America Preferred Ins. Co.,
supra note 11, at ¶ 8 n.15, at 936 n.15. Buyers have offered evidentiary
material raising a legitimate inference that the quantum of damages
could be estimated by assigning a value of $50 to each of the 703 square
feet for which they bargained but did not receive.
31. 59 O.S. 2001 §§ 858-101 et seq., supra note 5. The Code governs
the licensure of, and creates standards of professional conduct for,
Oklahoma real estate licensees.
32. First Nat’l Bank v. Honey Creek Entm’t Corp., 2002 OK 11, ¶ 12,
54 P.3d 100, 104; Bredouw v. Jones, 1966 OK 93, ¶ 27, 431 P.2d 413, 419;
American Asbestos Prods. Co. v. Smith Bros., 1937 OK 604, ¶ 10, 73
P.2d 839, 841; McLean v. Southwestern Cas. Ins. Co., 1915 OK 987, ¶ 2,
159 P. 660, 661.
33. First Nat’l Bank v. Honey Creek Entm’t Corp., supra note 32, at
¶ 12, at 104.
34. The terms of § 858-312(2) enjoin licensees from making substantial misrepresentations while the terms of § 858-312(8) prohibit “any
1445
other conduct which constitutes untrustworthy, improper, fraudulent,
or dishonest dealings” (emphasis added). A careful grammatical reading of these two subparts of the statute in tandem suggests that the
making of “substantial misrepresentations or false promises” is contemplated within the broader category of “untrustworthy, improper,
fraudulent, or dishonest dealings” (emphasis added).
35. Rice v. Patterson Realtors, 1993 OK 103, ¶ 5, 857 P.2d 71, 73;
Dawson v. Tindell, supra note 25, at ¶ 1, at 408.
36. This court has held that:
A vendee of real estate has a right to act on the positive representation of the vendor as to the existence of a material fact,
although vendee by investigation could have ascertained the
nonexistence of such fact. The question in such case is whether
the vendee was in fact deceived by the representation.
G.A. Nichols, Inc. v. Karnes, 1940 OK 380, ¶ 0, 106 P.2d 125, 126 (First
Syllabus by the Court).
37. A patent defect is a “readily observable” defect. Rogers v. Meiser, supra note 25, at ¶ 15, at 977.
38. See, e.g., Dawson v. Tindell, supra note 25, at ¶ 5, at 408-09;
Gutelius v. Sisemore, 1961 OK 243, ¶ 7, 365 P.2d 732, 734-35.
39. See, e.g., Sokolosky v. Tulsa Orthopaedic Assoc., Inc., 1977 OK
46, ¶ 10, 566 P.2d 429, 431; Onstott v. Osborne, 1966 OK 3, ¶ 16, 417 P.2d
291, 294; McDaniel v. Quinn, 1957 OK 23, ¶ 14, 307 P.2d 127, 130. “It is
a general rule that representations as to value are considered mere
matters of opinion, and even when untrue are not to be considered as
fraudulent.” Nowka v. West, 1919 OK 367, ¶ 8, 186 P. 220, 223.
40. G.A. Nichols, Inc. v. Karnes, supra note 36, at ¶ 4, at 127.
41. Nearly a century ago, this court had already refused to apply
the doctrine of caveat emptor to a case involving a misrepresentation of
the size of real property. We stated that:
False representations of a vendor as to the quantity of a tract of
land he offers for sale are not mere matters of opinion, but are
material, and he cannot avoid their consequences merely because
the vendee might have ascertained their falsity by a survey of the
land or by reference to official plats and records.
Miller v. Wissert, 1913 OK 475, ¶ 1, 134 P. 62, 64.
This court’s subsequent opinions have not deviated from this general
rule, and we decline to do so today. Black’s Law Dictionary, supra note
21, at 236, has also noted the greatly diminished contemporary relevance of the doctrine of caveat emptor, stating that “[m]odern statutes
and cases have greatly limited the importance of this doctrine.”
42. This court has observed that:
[N]o man should be permitted to complain or take advantage of
the fact that another has too confidently relied on the truthfulness of the statements he has himself made***.
Thompson v. Davis, 1925 OK 96, ¶ 20, 254 P. 501, 503 (citations omitted). We have similarly held that:
It is as much an actionable fraud willfully to deceive a credulous
person with an improbable falsehood as it is to deceive a cautious and sagacious person with a plausible one. The law draws
no line between the two falsehoods. It only asks in either case,
Was the lie spoken with intent to deceive and defraud, and was
the false statement believed, and money paid on this faith that it
was true? These questions are for the jury.
Prescott v. Brown, 1911 OK 513, ¶ 14, 120 P. 991, 993 (citation omitted).
43. G.A. Nichols, Inc. v. Karnes, supra note 36, at ¶ 0, at 126 (First
Syllabus by the Court).
44. Art. 2 § 19 and Art. 2 § 7, Okla. Const., supra note 15.
2009 OK 50
STEVEN R. BLUE Plaintiff/Appellee, v.
BOARD OF TRUSTEES OF EMPLOYEES’
RETIREMENT SYSTEM OF TULSA
COUNTY, Defendant/Appellant.
No. 104,967. June 30, 2009
ON CERTIORARI TO THE COURT OF CIVIL
APPEALS, DIVISION IV
¶0 Appellee, Steven R. Blue, filed an action
seeking a writ of mandamus requiring the
Board of Trustees of Employees Retirement
System of Tulsa County (ERSTC) to implement, pursuant to 19 O.S.Supp.2003, § 956.3,
the transfer of his years of service credit from
the state retirement system. The trial court
1446
issued the writ, directing ERSTC to comply
with the statute. ERSTC appealed. The Court of
Civil Appeals, Division IV, reversed the trial
court’s issuance of the writ finding § 956.3 to be
an unconstitutional special law.
OPINION OF THE COURT OF CIVIL
APPEALS VACATED; JUDGMENT OF THE
DISTRICT COURT AFFIRMED.
Keith F. Sellers, Tulsa, Oklahoma, for Appellee.
Joel L. Wohlgemuth, David R. Ross, Adrienne
Barnett, Tulsa, Oklahoma, for Appellant.
WINCHESTER, J.:
¶1 The issue presented concerns the constitutionality of 19 O.S.Supp.2003, § 956.3.1 We find
the statute constitutional and affirm the trial
court’s issuance of a writ of mandamus.
BACKGROUND
¶2 In Oklahoma, the retirement plans of state
employees are governed largely by the Oklahoma Public Employees Retirement System
(OPERS), 74 O.S.2001 § 901, et seq.2 With the
exception of Oklahoma and Tulsa counties, all
county governments and their employees are
required to participate in this system. 74
O.S.Supp.2007, § 910. Pursuant to 19 O.S.2001, §
951, Oklahoma and Tulsa counties, as the only
qualifying counties with a population of more
than 300,000, were permitted to operate their
own county retirement plan.3 Tulsa County operates a defined benefit plan in accordance with 19
O.S.2001, § 956; while Oklahoma County employees participate in a defined contribution plan
pursuant to 19 O.S.Supp.2007, § 956.2.4
¶3 In 2003, the Legislature enacted 19
O.S.Supp.2003, § 956.3, which provides that
a public employee, covered by OPERS, could
move employment to a county with a § 951
defined benefit retirement plan and have his
service credit consolidated. Effectively, this
statute applied to all Tulsa County employees and those Oklahoma County employees
who opted to remain part of the county’s
defined benefit system.
¶4 The appellee, Steven R. Blue, was
employed by the State Auditor’s Office for sixteen years during which time he participated
in OPERS. He then took a job with the Tulsa
County Treasurer’s Office, which participated
in the § 951 defined benefit retirement system
operated by Appellant, Board of Trustees of
Employees’ Retirement System of Tulsa County (ERSTC). Appellee notified ERSTC that he
Vol. 80 — No. 18 — 7/11/2009
wished to transfer his sixteen years of service
credit from OPERS to ERSTC, pursuant to 19
O.S.Supp.2003, § 956.3. ERSTC denied Appellee’s request to transfer his OPERS service
credit claiming § 956.3 was unconstitutional.
¶5 Appellee filed the present action seeking a
writ of mandamus directing ERSTC to implement the transfer of his service credit pursuant
to § 956.3. The district court issued a writ
directing ERSTC to comply with § 956.3 and
recognize the transfer of Appellee’s sixteen
years of service with OPERS. ERSTC appealed
and the Court of Civil Appeals, Division IV,
reversed finding § 956.3 to be an unconstitutional, special law.
STANDARD OF REVIEW
¶6 A statute’s constitutional validity as well
as its construction and application are questions of law reviewed de novo, i.e., without deference. Gilbert v. Sec. Fin. Corp. of Okla., Inc.,
2006 OK 58, ¶ 2, 152 P.3d 165, 171. A legislative
act is presumed to be constitutional and will be
upheld unless it is clearly, palpably and plainly
inconsistent with the Constitution. EOG Resources Marketing, Inc. v. Oklahoma State Board of
Equalization, 2008 OK 95, ¶ 13, 196 P.3d 511, 519.
The burden is on ERSTC, the entity challenging
the statute, to show beyond a reasonable doubt
that 19 O.S.Supp.2003, § 956.3 is unconstitutional. See City of Enid v. Pub. Employees Relations
Bd., 2006 OK 16, ¶ 5, 133 P.3d 281, 285.
DISCUSSION
¶7 ERSTC contends 19 O.S.Supp.2003,
§ 956.3 is a special law in violation of Okla.
Const. art. 5, §§ 46 and 59.5 It also argues the
statute impairs the obligation of contract it has
with its members in violation of U.S.C. Const.
art. I, § 10 and Okla. Const. art. 2, § 15, and
amounts to an unconstitutional taking of private property for public use in violation of the
U.S. Const., Fifth Amendment, Takings Clause
and Okla. Const. art. 2, § 24.6 Conversely,
Appellee argues that § 956.3 is constitutional as
it operates uniformly on its intended class consisting of all public employees consolidating
service credit from OPERS into a § 951 defined
benefit retirement plan.
¶8 In reversing the writ issued by the district
court, the Court of Civil Appeals (COCA)
found § 956.3 to be an arbitrary, special law
prohibited by Okla. Const. art. 5, § 46.7 COCA
observed that the offending statute applied
only to defined benefit plans and that, as a
practical matter, only Tulsa County was subVol. 80 — No. 18 — 7/11/2009
stantially affected since Oklahoma County
elected to implement a defined contribution
plan under 19 O.S.Supp.2007, § 956.2. Finding
no reason to treat Tulsa County any differently
from Oklahoma County, COCA found the statute unconstitutional. We disagree and affirm
the writ issued by the district court.
I. Special v. General Laws.
A. Okla. Const. art. 5, § 46.
¶9 Article 5, Section 46 of the Oklahoma Constitution prohibits the Legislature from creating a special law with respect to twenty-eight
enumerated activities listed within the statute.
The regulation of county affairs is one such
prohibited area and is central to this dispute.
As it is uncontested that 19 O.S.Supp.2003, §
956.3 involves the regulation of county affairs,
we must determine whether the statute is general or special in nature. Reynolds v. Porter, 1988
OK 88, ¶ 17, 760 P.2d 816, 822.
¶10 General laws are those which have a uniform application. Uniformity, however, does
not mandate that the law must operate upon
every person and every locality in the state.
City of Enid v. Pub. Employees Relations Bd., 2006
OK 16, ¶ 8, 133 P.3d 281, 286. In fact, a class
may be very limited and include but only one
member. City of Enid, 2006 OK 16, ¶ 13, 133 P.3d
at 287.
¶11 This Court’s precedent has established a
classification-based analysis for challenges
brought under Art. 5, § 46. That is, where a
classification created by statute is founded on
real and substantial distinctions, and does not
target for different treatment less than an entire
class of similarly situated persons or things,
the statute will be deemed permissible. See
Reynolds v. Porter, 1988 OK 88, ¶ 17, 760 P.2d
816, 823; EOG Resources Marketing, Inc. v. Oklahoma State Board of Equalization, 2008 OK 95, ¶
20, 196 P.3d 511, 521. Special laws are those that
rest on a false or deficient classification and do
not embrace all of their natural class. Barrett v.
Bd. of County Comm’rs, 1939 OK 68, ¶ 17, 90 P.2d
442, 446, quoting School District No. 85, Kay
County v. School District No. 71, Kay County,
1928 OK 689, 276 P. 186. Article 5, § 46 absolutely prohibits the passage of any special law
relating to one of its enumerated subjects.
¶12 In City of Enid, this Court reiterated the
importance of the classification inquiry. We
held that:
[W]here a statute operates upon a class, the
classification must not be capricious or arbi-
1447
trary and must be reasonable and pertain to
some peculiarity in the subject-matter calling for the legislation. As between the persons and places included within the operation of the law and those omitted, there
must be some distinctive characteristic upon
which a different treatment may be reasonably founded and that furnish[es] a practical and real basis for discrimination.”
City of Enid, 2006 OK 16, ¶ 14, 133 P.3d at 287,
citing and quoting Burks v. Walker, 1909 OK 317,
¶ 23, 109 P. 544, 549. The law must operate uniformly upon all brought within the class by
common circumstances, even though the number of persons or things upon which the law
has direct effect may be very few. EOG Resources Marketing, Inc. v. Oklahoma State Board of
Equalization, 2008 OK 95, ¶ 20, 196 P.3d at 521.
¶13 In Glasco v. State ex rel. Oklahoma Dept. of
Corrections, 2008 OK 65, 188 P.3d 177, the plaintiff asserted that the challenged statute was
unconstitutional because it targeted state
employees for different treatment than other
injured workers. Upholding the statute, we
found that it “facially treats alike all members
of the class of state employees on leave without
pay” and creates a reasonable classification.
Glasco, 2008 OK 65, ¶ 28, 188 P.3d at 184.
¶14 As in Glasco, we find that the classification created by § 956.3, pertaining to defined
benefit retirement plans, is a reasonable legislative classification. The subject class consists of
all active employees of a § 951 defined benefit
retirement plan whose retirement benefits are
based on years of service. The statute applies
equally to all qualifying employees in Oklahoma and Tulsa counties. The challenged legislation does not single out Tulsa County for
special treatment, but rather treats both counties in the same manner.
¶15 Oklahoma County employees participating in the § 956.2 defined contribution plan are
not affected by the terms of § 956.3 because that
statute is irrelevant to a plan where years of
service are not used to determine plan subscriber benefits.8 This distinguishing characteristic is practical and reasonable.
¶16 The fact that § 956.3 may “substantially
apply” only to Tulsa County is likewise immaterial to our inquiry. We have previously held
that a class of one can pass constitutional muster under an art. 5, § 46 analysis. See City of
Enid, 2006 OK 16, ¶ 13, 133 P.3d at 287. Because
§ 956.3 operates uniformly across the entire
class of similarly situated § 951 defined benefit
1448
retirement plan members, we find the statute
permissible under art. 5, § 46.9
B. Oklahoma Const., art. 5, § 59.
¶17 ERSTC next asserts that § 956.3 is an
impermissible special law in violation of Okla.
Const. art. 5, § 59. We find it unnecessary to
address ERSTC’s contention as the statute in
question concerns one of the enumerated subjects listed in art. 5, § 46 of the Oklahoma Constitution and we have previously found it not
in violation thereof. If the statute is not deemed
an unconstitutional special law under a § 46
analysis, it follows that it also would not violate § 59. See Reynolds v. Porter, 1988 OK 88, ¶
17, 760 P.2d at 822, 823. Further, this argument
has been abandoned as it was not addressed by
ERSTC in its appellate brief. See Peters v. Golden
Oil Co., 1979 OK 123, 600 P.2d 330.
II. Impairment of Contract under U.S.C.
Const. art. I, § 10; Okla. Const. art. 2, § 15.
¶18 Both the United States and Oklahoma
constitutions prohibit the state from enacting
any law “impairing the obligation of contracts.” U.S.C. Const. art. I, § 10; Okla. Const.
art. 2, § 15. ERSTC claims that § 956.3 violates
these provisions because it will significantly
impair the fiscal soundness of the plan and, as
a result, will affect the contractual rights of its
members. ERSTC alleges that the retirement
benefits of its members are threatened and
“will likely” have to be reduced. We are not
persuaded by ERSTC’s unsupported assumption of the threat to its plan.
¶19 We have held that the legislature may
modify public employees’ pension rights, even
though the rights are contractually based, so
long as the modifications are reasonable and
necessary and provide offsetting advantages to
the disadvantages. Taylor v. State and Education
Employees Group Insurance Program, 1995 OK 51,
¶13, 897 P.2d 275, 279. The modifications will
be approved so long as they do not impair the
actuarial soundness of the fund, or detrimentally affect vested rights, which are matters of
proof. Taylor v. State and Education Employees
Group Insurance Program, 1995 OK 51, ¶13, 897
P.2d at 279.
¶20 In Taylor v. State, 1995 OK 51, 897 P.2d
275, legislation was enacted that transferred
$39,600,000 from the teachers’ retirement system to an education employees’ insurance
reserve fund. Some members of the teachers’
retirement system were not beneficiaries of the
insurance reserve fund and challenged the con-
Vol. 80 — No. 18 — 7/11/2009
stitutionality of the new act. This Court found
the legislation constitutional as it “neither
increased teacher contributions to OTRS nor
reduced benefits” and the actuarial soundness
of the OTRS was not impaired. Taylor v. State,
1995 OK 51, ¶20, 897 P.2d at 280.
¶21 ERSTC offers mere speculation that its
members’ benefits might have to be reduced at
some unspecified future date. No evidence has
been offered regarding the actuarial soundness
of the fund or a detrimental effect on vested
rights. Certainly the terms of § 956.3 itself do
not call for an increase in member contributions or a reduction in benefits to ERSTC members which might trigger an impairment.
Because ERSTC has offered no proof that the
application of § 956.3 will unconstitutionally
impair the contractual obligations to its employees, we cannot render the statute unconstitutional on these grounds.
III.The Takings Clauses in the U. S. Const.,
Fifth Amendment and the Okla. Const.,
art. 2, § 24.
¶22 ERSTC argues that § 956.3 amounts to an
unconstitutional taking of private property for
public use contrary to the U.S. Const., Fifth
Amendment, Takings Clause and the Okla.
Const., art. 2, § 24.10 ERSTC maintains that
monies contributed to its plan constitute private funds in the form of delayed compensation, to which vested ERSTC members are
entitled upon retirement. In support of its
argument, ERSTC claims that § 956.3 requires it
to pay funds from the pool of member contributions to individuals who have not made
similar contributions to the plan. ERSTC’s
argument is without merit.
¶23 ERSTC has failed to identify any owner
of private property whose private property is
being taken. There is simply no evidence presented that ERSTC members entitled to retirement benefits will not receive the benefits to
which they are so entitled. Accordingly, we
conclude that under the facts and circumstances presented, the transfer of service credit
under § 956.3 does not constitute a taking of
private property for public use under the constitutions of the United States and the State of
Oklahoma.
IV. Appellee’s Standing.
¶24 It is undisputed that Appellee properly
began the process for requesting a credit transfer as set forth in § 956.3. On May 18, 2004,
Appellee provided notice to ERSTC and OPERS
Vol. 80 — No. 18 — 7/11/2009
of his election to transfer his credit pursuant to
§ 956.3. The statute provides that ERSTC must
then notify OPERS of the approval of the transfer and, within thirty days thereafter, OPERS
would send to ERSTC all of Appellee’s employee contributions. 19 O.S.Supp.2003, § 956.3(B).
ERSTC denied Appellee’s request notwithstanding the mandatory language of § 956.3.
¶25 Despite Appellee’s initiation of the transfer process, ERSTC argues that Appellee has no
standing to enforce § 956.3 because he had not
yet vested in the plan and had not yet requested any payment of retirement benefits from
ERSTC. Specifically, ERSTC claims that it is not
required to take action approving a transfer
request or notifying OPERS thereof under §
956.3 until a member becomes entitled to benefits. ERSTC’s argument is misguided and
ignores the crucial detail that it has, in fact,
already taken action to deny Appellee’s request
for transfer of service credit.
¶26 The terms of § 956.3 do not require
employees’ retirements rights to have vested
before they can take advantage of the statute’s
provisions. To the contrary, § 956.3 specifically
provides that the service credit sought to be
transferred cannot be used in fulfilling the
vesting requirements of the plan. 19
O.S.Supp.2003, § 956.3(C). As such, Appellee
rightfully initiated the transfer process under §
956.3 and ERSTC is obligated to implement the
requested transfer.
CONCLUSION
¶27 Section 956.3 applies equally to all
employees whose retirement is under a § 951
defined benefit plan. The challenged legislation creates a reasonable classification and
does not constitute a special law. Because we
find the statute constitutional, we affirm the
district court’s issuance of a writ of mandamus.
ERSTC is directed to implement the transfer of
Appellee’s service credit pursu ant to the terms
of 19 O.S.Supp.2003, § 956.3.
APPEALS VACATED; JUDGMENT OF THE
DISTRICT COURT AFFIRMED.
Concur: Edmondson, C.J., Taylor, V.C.J., Opala,
Kauger, Winchester, JJ.
Dissent: Hargrave, Watt, Colbert, JJ.
Not Participating: Reif, J.
1. Section 956.3, which was repealed in May 2004, provided:
1449
A. A member of a county defined benefit retirement system created
pursuant to Section 951 of Title 19 of the Oklahoma Statutes may
elect to transfer service credit in the Oklahoma Public Employees
Retirement System to such county retirement system if:
1. The member is an active member of the county defined benefit
retirement system;
2. The member provides notice to the county defined benefit
retirement system and the Oklahoma Public Employees Retirement System of the member’s election to transfer such retirement
credit. The notice shall include a list of the years to be transferred; and
3. The member is not receiving or eligible to receive retirement
credit or benefits from such service in any other public retirement system, notwithstanding the years of service sought to be
transferred under this subsection.
Members electing to take advantage of the transfer authorized
by this subsection shall have all service credit with the Oklahoma
Public Employees Retirement System canceled that is transferred
to the county defined benefit retirement system.
B. The county defined benefit retirement system shall notify the
Oklahoma Public Employees Retirement System of the approval
of the transfer. Within thirty (30) days after notification of the
approval is received by the Oklahoma Public Employees Retirement System, the System shall, according to its own rules, certify
the service credited in the System and send to the county defined
benefit retirement system all employee contributions made by
the member to the System. Upon receipt of these contributions
by the county defined benefit retirement system, the county
defined benefit retirement system shall give credit to the transferring member in an amount equal to the years of service certified by the Oklahoma Public Employees Retirement System.
C. Credit transferred pursuant to this act shall not be used in
fulfilling the vesting requirements of the county defined benefit
retirement system. Such transferred credit shall, however, be
used in determining a member’s normal retirement date in the
county defined benefit retirement system.
2. Oklahoma has six statewide statutory public pension systems:
Oklahoma Firefighters Pension and Retirement System, 11 O.S. §§ 49100.1 et seq.; Oklahoma Police Pension and Retirement System, 11 O.S.
§§ 50-101 et seq.; Uniform Retirement System for Justices and Judges,
20 O.S. §§ 1101 et seq.; Oklahoma Law Enforcement Retirement System,
47 O.S. §§ 2-300 et seq.; Oklahoma Teachers’ Retirement System, 70
O.S. §§ 17-101 et seq.; and the Oklahoma Public Employees Retirement
System, 74 O.S. §§ 901 et seq.
3. 19 O.S.2001, § 951 provides:
The board of county commissioners of any county in the State of
Oklahoma having a population of more than three hundred
thousand (300,000), according to the latest Federal Decennial
Census, is hereby authorized to provide by resolution for a
retirement fund and system for any or all of the employees of
such county as delayed compensation in order to encourage
continuity of dedicated service on the part of employees and
thereby promote public efficiency, and to provide retirement
allowances and other benefits for such employees, their surviving spouses and surviving children; such fund to be supported
by joint contributions by such county and the employees to be
benefited.
4. Oklahoma County initially operated a defined benefit system
pursuant to 19 O.S.2001, § 951. However, with the enactment of 19
O.S. Supp.2007, § 956.2 some thirty years later, the county opted to
implement a defined contribution plan. Under § 956.2, counties with a
population in excess of 590,000 (of which only Oklahoma County
qualified) were given the option of offering a defined contribution
plan. Accordingly, Oklahoma County elected to change its system. The
terms of § 956.2 allowed employees who wished to remain part of the
defined benefit plan to do so. The evidence presented indicates that at
least 51 employees continued with Oklahoma County’s defined benefit
plan and that, as of 2006, at least 19 of those employees were still
actively employed by Oklahoma County under the defined benefit
plan.
5. Okla. Const. art. 5, § 46 provides in pertinent part:
The Legislature shall not, except as otherwise provided in
this Constitution, pass any local or special law authorizing:
…Regulating the affairs of counties, cities, towns, wards, or
school districts….
Okla. Const. art. 5, § 59 provides:
Laws of a general nature shall have a uniform operation
throughout the State, and where a general law can be made
applicable, no special law shall be enacted.
6. Okla. Const. art 2, § 15 prohibits the state from enacting any law
“impairing the obligation of contracts.”
Okla. Const. art 2, § 24 prohibits the State from taking private
property “for public use without just compensation.”
1450
7. Because COCA found the statute unconstitutional under § 46, it
was unnecessary for COCA to address ERSTC’s remaining propositions of error.
8. Other than requiring members to accumulate five years for vesting
purposes, years of service do not count for anything under the
§ 956.2 plan utilized by Oklahoma County. Section 956.3 specifically
provides that any credit transferred pursuant thereto “shall not be used
in fulfilling the vesting requirements” of the plan. 19 O.S.Supp.2003,
§ 956.3(C). Thus, defined benefit retirement plan members are not given
any unfair advantage over defined contribution retirement plan members with respect to the implementation of § 956.3. In fact, defined benefit plan members face an unfair disadvantage by not allowing them to
transfer their prior qualifying years of service and, instead, forcing them
to begin accruing service credit anew after moving employment to Tulsa
County. Members of OPERS are not confronted with this situation as
they can transfer among participating employers and maintain their
years of participating service credit. See 74 O.S. § 913.
9. ERSTC and COCA questioned the wisdom of § 956.3 because,
while the statute required OPERS to send all contributions made by
the requesting member to the § 951 defined benefit system, it did not
require OPERS to transfer the contributions made by the employer on
behalf of the employee. This fact is immaterial to our analysis today as
it is not the function of this Court to concern itself with the propriety
of the statute in question nor its desirability, wisdom or practicality as
a working proposition. Fent v. Oklahoma Capitol Improvement Authority,
1999 OK 64, ¶¶ 3-4, 984 P.2d 200, 204, cert denied, 528 U.S. 1021, 120
S.Ct. 531, 145 L.Ed.2d 411 (1999).
10. The Takings Clause of the Fifth Amendment to the Constitution
of the United States provides that private property shall not “be taken
for public use without just compensation.”
The Oklahoma Constitution, art. 2, § 24 provides that “[p]rivate property
shall not be taken or damaged for public use without just compensation.”
2009 OK 52
DANNY DYE and PAT DYE, Husband and
Wife, Plaintiffs/Appellants, v. CHOCTAW
CASINO OF POCOLA, OKLAHOMA, and
THE CHOCTAW NATION OF
OKLAHOMA, Defendants/Appellees.
No. 104,737. June 30, 2009
ON WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS, DIVISION I
¶0 Danny and Pat Dye filed a petition in
the state district court against the Choctaw
Nation and its casino in Pocola, Oklahoma,
to recover tort damages. The Choctaw
Nation moved to dismiss on the basis of
tribal sovereign immunity. The district
court dismissed the petition. The Dyes
appealed. The Court of Civil Appeals
reversed and remanded the cause. We
granted the Choctaw Nation’s petition for
certiorari review.
APPEALS VACATED; DISMISSAL ORDER
OF THE DISTRICT COURT REVERSED;
CAUSE REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS.
Daniel W. Walker, Fort Smith, Arkansas, for
plaintiffs/appellants.
Robert Lee Rabon, Hugo, Oklahoma, Dennis
W. Arrow, Oklahoma City, Oklahoma, for
defendants/appellees.
Vol. 80 — No. 18 — 7/11/2009
Graydon Dean Luthey, Jr., Tulsa, Oklahoma,
Diane Hammons, Tahlequah, Oklahoma, for
Cherokee Nation and Cherokee Nation Businesses, LLC, amici curiae.
Deanna Hartley-Kelso, Debra Gee, Stephen H.
Greetham, Jesse D. Green, Ada, Oklahoma, for
Chickasaw Nation, amicus curiae.
William R. Norman, Jr., Kirke Kickingbird,
Klint A. Cowan, Oklahoma City, Oklahoma,
for Comanche Nation Gaming Corporation
and Sac and Fox Nation Business Enterprises,
Inc., amici curiae.
Larry A. Tawwater, Darren M. Tawwater, Rex
Travis Paul Kouri, Oklahoma City, Oklahoma,
for The Oklahoma Association for Justice, amicus curiae.
PER CURIAM:
¶1 One question is presented in this appeal:
Is the state district court a court of competent
jurisdiction as used in the gaming compact
between the Choctaw Nation of Oklahoma and
the State of Oklahoma such that the district
court may exercise jurisdiction over this Indian-country arising negligence action filed by a
casino patron against the Choctaw tribe and its
casino? We answer in the affirmative.
¶2 The Choctaw Nation of Oklahoma, a federally recognized Indian tribe1 (Tribe), owns a
casino which it operates through its tribal
enterprise, the Choctaw Casino of Pocola,
Oklahoma (casino). The Tribe offers class
III gaming2 to its casino’s patrons pursuant to
the Indian Gaming Regulatory Act, 25 U.S.C.
§§ 2701-2722 (1988), and the State-Tribal Gaming Act, 3A O.S.Supp.2004, §§ 261-281, which
includes the statutory “Model Tribal Gaming
Compact” (compact), id. § 281, signed by the
Tribe and effective February 9, 2005.3
¶3 On December 6, 2005, Danny Dye and Pat
Dye (Dyes) visited the casino. According to the
Dyes, Danny Dye4 left the gaming area of the
casino, and while he was walking through the
parking lot, a casino shuttle cart driven by a
casino employee ran into him. Danny Dye was
injured. The Dyes submitted a notice of tort
claims to the casino and the Tribe as provided
in the compact,5 alleging that Danny was seriously injured by the negligence of the casino’s
shuttle-cart driver. When the Tribe and the
casino failed to act upon the tort claim, it was
deemed denied.
¶4 The Dyes filed a tort action in the state
district court in LeFlore County against the
Vol. 80 — No. 18 — 7/11/2009
casino and the Tribe. The Tribe moved to dismiss the tort action on the basis of tribal sovereign immunity to suit in state court, arguing
that Oklahoma state courts may not exercise
jurisdiction over a sovereign Indian tribe unless
Congress or the Indian tribe has clearly consented to suit in state court or waived tribal
immunity. The Dyes responded that the Tribe
consented to suit in the compact, which, at Part
6(A)(2), states that the “tribe consents to suit on
a limited basis with respect to tort claims” and,
at Part 6(C),states that the “tribe consents to
suit against the enterprise in a court of competent jurisdiction with respect to tort claims.”
The Tribe contended that the declaration in
Part 9 of the compact that “(t)his Compact shall
not alter tribal, federal or state civil adjudicatory or criminal jurisdiction,” places subjectmatter jurisdiction exclusively in tribal court
and therefore, that the consent to suit in a court
of competent jurisdiction in the compact is consent to suit in tribal court only. The Honorable
Ted A. Knight, Judge of the District Court, concluded that tribal courts and federal courts
have jurisdiction over Indian tribes but state
courts do not and dismissed the action.
¶5 The Dyes appealed the dismissal, and this
Court assigned the appeal to the Court of Civil
Appeals. Subsequently, we received another
appeal from the LeFlore County district court
presenting the same issues under the compact
with the Choctaw Nation in Griffith v. Choctaw Casino of Pocola, Oklahoma, No. 104,887.
We denied Griffith’s request to make her appeal
a companion case with this one, but noted the
appeals are related. Thereafter, this Court
received a certified question as to whether the
district court in Rogers County, Oklahoma, is a
“court of competent jurisdiction” as that phrase
is used in the tribal gaming compact between
the Cherokee Nation and the State of Oklahoma in Cossey v. Cherokee Nation Enterprises, LLC, No. 105,300.
¶6 The Court of Civil Appeals reversed the
district court’s dismissal and remanded this
case. Although the Court of Civil Appeals
reached the same result we reach today, we
granted the petition for writ of certiorari filed
by the Tribe and its casino because of the significance of the question as to whether a state
district court is a court of competent jurisdiction under the Model Tribal Gaming Compact,
3A O.S.Supp.2004, § 281.
¶7 We recently handed down our opinion in
Cossey v. Cherokee Nation Enterprises, LLC, 2009
OK 6, __ P.3d ___, (mandate issued June 11,
1451
2009), holding that the state district court is a
court of competent jurisdiction as that phrase is
used in the Cherokee Nation’s tribal gaming
compact. Today, in separate opinions in this case
and in the related case of Griffith v. Choctaw
Casino of Pocola, Oklahoma, we determine that
Oklahoma district courts are courts of competent jurisdiction as that phrase is used in Oklahoma’s statutory model tribal gaming compact,
and that the state courts may exercise jurisdiction over the tort claims against the Choctaw
Nation and its casino in Pocola, Oklahoma.
¶8 In Griffith v. Choctaw Casino of Pocola, Oklahoma, 2009 OK 51, handed down simultaneously,
we considered the adjudicatory authority of the
state district courts under the Indian Gaming
Regulatory Act, 25 U.S.C. §§ 2701-2722, and the
State-Tribal Gaming Act, 3A O.S.Supp.2004, §§
261-281. This appeal, like Griffith, involves tort
claims arising at the Choctaw Casino of Pocola,
Oklahoma, and it presents a legal question identical to that in Griffith as to the jurisdiction of the
state district court and the exercise of state adjudicatory authority over the Choctaw Nation.
Rather than repeat at length our consideration
and reasoning set out in Griffith, we adopt our
Griffith opinion and base our conclusion and
holding in this case upon Griffith. In doing so,
we acknowledge that we considered this case
and the related Griffith case simultaneously, and
we are grateful for the thoughtful argument and
authorities presented by the parties’ counsel
herein and the assistance of the amici curiae.
¶9 Accordingly, for the reasons expressed in
Griffith v. Choctaw Casino of Pocola, Oklahoma,
2009 OK 51, we conclude and hold that the
state district court is a court of competent jurisdiction as that term is used in the Model Tribal
Gaming Compact codified at 3A O.S.Supp.2004,
§ 281. Our holding in this case does not change,
diminish, or expand the jurisdiction of tribal
courts nor take away the right of a tort claimant to select the forum — federal, state, or
tribal — in which to file a tort action.
APPEALS VACATED; DISMISSAL ORDER
OF THE DISTRICT COURT REVERSED;
CAUSE REMANDED TO THE DISTRICT
COURT FOR FURTHER PROCEEDINGS.
Taylor, V.C.J., and Opala, Watt, Winchester, and
Colbert, JJ., concur.
Kauger, J., (by separate writing) concurs in part
and dissents in part.
1452
Edmondson, C.J., and Hargrave and Reif (by
separate writing), JJ., dissent.
1. Notice of Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs published in
the Federal Register on April 4, 2008. 73 FR 18553-01.
2. Class III gaming is high-stakes casino-style gambling such as
electronic games of chance, slot machines and banking card games. 25
U.S.C. § 2703(8); 3A O.S.Supp.2004, § 281, Part 3(5); Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 48 n.1, 116 S.Ct. 1114, 134 L.Ed.2d 252
(1996).
3. The Tribe duly executed the compact and submitted it to the
Secretary of the Interior for approval. The Secretary of the Interior did
not approve the compact. The compact was considered approved
forty-five days after its submission, 25 U.S.C. § 2710(d)(7)(C), and
became effective Feb. 9, 2005, the date notice was published in the
Federal Register. 70 FR 6903.
4. There are no allegations that Danny Dye is a member of the
Choctaw Nation or that he is subject to tribal regulation as a tribal
member.
5. In Part 6, the compact sets forth a pre-judicial procedure similar
to that in the state’s statutory regime for governmental tort claims. 3A
O.S.Supp.2004, § 281. The pre-judicial procedure requires a tort claimant to give notice of the claim to the Indian tribe and its enterprise as a
prerequisite to filing a judicial proceeding. If the tribe or the enterprise
does not act upon the notice, the tort claim is deemed denied. Upon
denial of the claim, the claimant may seek a judicial remedy.
KAUGER, J., concurring in part/dissenting in
part:
¶1 My analysis of the core issues remains
unchanged from what I expressed in Cossey v.
Cherokee Nation Enterprises, LLC., 2009 OK 6,
___ P.3d ___ (rehearing denied June 11, 2009). I
was troubled by two implications in Cossey.
The writing implied that: 1) tribal courts are
not courts of competent jurisdiction; and 2)
jurisdiction might depend on whether the
casino patron was an Indian or a non-Indian.
Today’s opinion clearly dispels these concerns,
holding that: 1) the casino patron may select
tribal courts as a forum for bringing such a tort
claim because a tribal court is “court of competent jurisdiction;” and 2) recognizing that the
plaintiff is a non-Indian, non-tribal member
who voluntarily entered onto tribal land to do
business, thus subjecting herself to potential
tribal court jurisdiction.
¶2 Nevertheless, the majority’s analysis of
the issues continues to bother me. The majority
opinion states: “[w]e conclude that the Tribe
clearly and unequivocally consented to be
sued for tort damages by a casino patron
whether suit be brought in state court, federal
court or tribal court.” I agree that the first portion of this statement is true, the Tribe clearly
and unequivocally consented to be sued for
tort damages by a casino patron. It is the
remainder of the statement which is unsupported. The crux of this dispute, and the reason
for five separate writings in this cause as well
as five separate writings in Cossey, is that the
compact is obviously ambiguous because it
Vol. 80 — No. 18 — 7/11/2009
does not clearly and unequivocally state which
court has jurisdiction.
¶3 The majority makes the finding of clarity
without supporting evidence. Nevertheless,
the Court might have had the opportunity to
shed light on this ambiguity. The State Treasurer, in his capacity as lead State negotiator
for the 2004 Model Gaming Compact, filed
leave of the Court on May 15, 2008, to file a
statement regarding the compact. However,
the Court is precluded from considering this
statement [whatever it says] because the application was denied and the statement was
stricken from the record on May 27, 2008.1 We
are once again faced with the same problem as
in Cossey — the need to remand the matter to
consider extrinsic evidence of the parties’
intent.2
¶4 I agree that there is no express, specific
language in the model compact making tribal
law or tribal courts the exclusive forum for a
wrongfully injured casino patron. This leads to
the compact’s ambiguity. The compact does,
however, specifically provide, in Part 9, that
“[t]his compact shall not alter tribal, federal or
state civil adjudicatory or criminal jurisdiction.” Alteration may occur by expansion or
contraction. Because Oklahoma is not a P.L. 280
state,3 I believe that what is clear is that state
court jurisdiction has been expanded.
¶5 The majority opinion acknowledges that
the question of whether exclusive jurisdiction
over torts arising on tribal land was vested in
tribal courts at the time the compact was executed has not been well-settled. Yet, settling
this question is critical to the analysis because
of the Part 9 language. Neither the majority in
today’s opinion nor Cossey discusses or analyzes any of the cases which have addressed
this issue and unanimously held that the tribal
courts have jurisdiction (some negotiated
under the compact, some inherent).4 In addition to side stepping the issue, the Court
appears to have enlarged state court jurisdiction beyond what existed prior to the compacts. The Court concludes that the words
“tribal court only” could have been typed in
the compact, but were not. The Court also
notes that the tribe consents to suit twice in the
compact, yet it only refers to “court of competent jurisdiction” rather than specifically providing for suit in “tribal court only.”
¶6 Part 6(A)(2), in which the tribe consents to
suit, is limited by subsection “C of this part.”
Subsection C contains the language regarding
Vol. 80 — No. 18 — 7/11/2009
court of competent jurisdiction. Obviously, the
compact could have referred to “tribal court
only,” “state court only,” or “both” courts to
reflect the parties’ intent, but it does not. Consequently, the portion of the compact in which
existing jurisdiction is not altered becomes
imperative when determining intent — yet the
question remains ignored and the Court merely
pontificates about the meaning. I do believe
that because one size doesn’t fit all insofar as
tribal courts are concerned, the compact language was deliberately left nonspecific so that
the compact could be adapted to fit various
jurisdictional scenarios.
¶7 All statutory ambiguities are generally
construed in favor of Indian sovereignty.5 Evidence of what the compacting parties truly
intended can also be found by considering the
compact as a whole.6 The Court neglects to
consider that in addition to tort claims, the
same provisions apply for prize claim disputes.
Immunity is waived for prize claim disputes
and procedures are set forth much like tort
claims. Did the federal government (through
IGRA) and the State of Oklahoma and Oklahoma Indian Tribes (through compacting)
intend that if a patron enters onto tribal land,
voluntarily engages in tribal gaming activities,
disputes a prize claim (or lack thereof), that the
plaintiff could readily choose between three
forums as the concurring opinion suggests?
¶8 While this may one day be the law —
depending on what the United States Supreme
Court ultimately decides — it is not now, nor
has the concurring opinion provided any support in its assertions to show that it is. The
majority’s analysis is bottomed on the traditional right of a plaintiff in a civil lawsuit to
choose the venue of the lawsuit. Again I ask,
why would Congress have included a provision in IGRA allowing Tribes and States to
negotiate an allocation of jurisdiction to the
states if state courts, federal courts, and tribal
courts already had such jurisdiction? If this
were true, the jurisdiction provisions of IGRA
are meaningless.
¶9 I am also puzzled by the majority’s use of
the “voter-approved” compact by citing the
ballot title in its attempt to bolster the argument that the compact is no ordinary contract
and that the voters somehow approved one
court’s jurisdiction over another. The verbatim
recitation of the ballot title clearly shows the
voters neither implicitly nor expressly knowingly voted concerning the jurisdiction of tort
1453
claims. At 2004 Okla. Sess. Laws, ch. 316, it
provides:
This measure creates the State-Tribal Gaming Act. It would allow some types of gaming machines at some horse race tracks in
this state. The Oklahoma Horse Racing
Commission would oversee the new types
of gaming machines. It would require that
a portion of the money wagered on such
gaming be paid to the state. Some of the
money would go to purses for horse races.
Some of the money would go to the horse
race tracks. The measure also provides a
model compact which Indian tribes may
enter into and then operate such gaming
machines on Indian lands. The model compact provides regulatory controls for gaming authorized by the compact. The Office
of State Finance would have the authority
to oversee this gaming by the tribes. The
state’s portion of the money from the gaming authorized by this act would go for
treatment of compulsive gambling disorders, to the Education Reform Revolving
Fund and for college scholarships.
Clearly, the voters were asked to decide
whether to allow gaming at race tracks and
gaming on Indian land. There is nothing in
this measure notifying the voter of anything at
all regarding tort claims, much less which
court would have jurisdiction of such claims.
Consequently, the premise of both the majority opinion and the concurring opinion that
“court of competent jurisdiction” is votersanctioned to be the state courts over the
tribal court is inexplicable.
¶10 The majority opinion surmises that the
state, by virtue of IGRA and the language of
the compact, acquires concurrent jurisdiction
with tribal courts over gaming-related tort
claims against Indian Tribes which have a
Gaming Compact with the state. To reach this
conclusion, the majority must assume, without
deciding, that courts of the State of Oklahoma
are generally courts of competent jurisdiction
to adjudicate tort claims against Indian tribes
for tribal activity on tribal land. It intimates
that this jurisdiction is established by the
authority of the Oklahoma constitution and
that no federal law or state statute may alter
it.
¶11 The fallacy of this reasoning is exemplified by the Federal Indian Child Welfare Act
(FICWA). Under certain circumstances Oklahoma lacks any authority over an Indian child.7
1454
For instance, if the child lives on trust or
restricted land, or in a dependent Indian community, the state may not have the authority to
proceed and the case must be heard in tribal
court. In other cases, jurisdiction with the state
is concurrent, but the state, in the absence of
good cause, must transfer the proceeding to
the tribal court.8 The FICWA, as does IGRA,
illustrates that Congress can and does decide
whether the State of Oklahoma may assert civil
jurisdiction over Indian tribes, notwithstanding the assertion that “adjudicatory jurisdiction is constitutionally vested in our state
courts.”
CONCLUSION
¶12 The United States Constitution recognizes that Indian Tribes are to be treated on an
equal level with the governments of foreign
nations as well as the states.9 The Oklahoma
Constitution recognizes that all tribal lands
lying within Oklahoma boundaries shall be
subject to the jurisdiction of the United States.10
IGRA embodies the general goal of federal
Indian policy: to allow tribal self-government
with federal control.11 It requires states and
tribes to negotiate regarding the scope of authorized gaming and the State’s role in Indian
gaming. As part of this process, IGRA allows
states and tribes to negotiate and to include
jurisdiction-shifting provisions in the compact.12 Had Congress not considered tribal
courts to have subject matter jurisdiction over
lawsuits which relate to or arise out of gaming
and gaming enterprises, why would it have
included a provision in IGRA which allowed
tribes and states to negotiate an allocation of
jurisdiction to the states?
¶13 This whole discussion may become moot.
The compact became effective February 9,
2005, and it does not expire until 2020. At that
time it automatically renews for successive 15
year periods. However, the compact also provides that it may be terminated by mutual
consent. If the Tribe and the State are truly in
accord with what was their mutual intent at
the time of compacting, they may terminate
and renegotiate the compact insofar as “a court
of competent jurisdiction” is concerned.13
1. A copy of the order is attached to this writing.
2. Although it was again ignored by the Court, the Governor of
Oklahoma and the State Treasurer attached as exhibits to their Amicus
Curiae brief filed on March 9, 2009, in Cossey v. Cherokee Nation
Enterprises, LLC., 2009 OK 6, ___ P.3d ___ copies of sworn affidavits
which indicate that they negotiated and signed the compact with the
intent that the phrase “a court of competent jurisdiction” was not a
provision intended to extend the jurisdiction of State courts. Rather, it
was intended to preserve preexisting Tribal court jurisdiction over
claims arising in Indian country against Indian Tribes.
Vol. 80 — No. 18 — 7/11/2009
3. Public law 83-280 (commonly referred to as Public Law 280 or PL
280) was a transfer of legal authority (jurisdiction) from the federal
government to state governments. Some states, including California,
were given extensive criminal and civil jurisdiction over tribal lands
within the affected states whereas Oklahoma was not given, nor did it
assume, equivalent authority to apply or enforce its state civil or
criminal laws in Indian country.
4. For example, in Hatcher v. Harrah’s NC Casino Company, LLC.,
169 N.C.App. 151, 610 S.E.2d 210 (2005), the North Carolina Court of
Appeals addressed whether the state courts had subject matter jurisdiction to resolve a dispute between a casino patron who alleged that
he won a jackpot and the casino’s management company. The compact
between the Tribe and the State granted regulatory, criminal jurisdiction to the State, but it did not expressly grant civil jurisdiction to the
State with respect to the parties’ dispute. The court concluded that the
exercise of state court jurisdiction in the action would unduly infringe
on the self-governance of the tribe. See also, Bonnette v. Tunica-Biloxi
Indians, 873 So.2d 1 (La. Ct. App. 2003) which recognized that the Tribe
retained jurisdiction of tort claims of patrons of casinos in a compact
which provided that the “full territorial and subject matter jurisdiction” of the Tribe was preserved and that the Tribe would adopt procedures for disposition of tort claims. This conclusion was reached
despite the compact also containing a provision which stated that the
State and the Tribe had concurrent jurisdiction to fully “ensure the
protection of the public,” the Tribe and the State. A New Mexico case,
Gallegos v. Pueblo of Tesuque, 132 N.M. 207, 46 P.3d 668 (2002), dealt
with the subject matter jurisdiction of state courts over a tort claim
brought by a non-Indian against an Indian Tribe for injuries suffered at
the tribe’s gaming facility. At the time of the alleged tort, there was no
valid gaming compact in force. The Court held that trial courts of New
Mexico lacked jurisdiction in the matter absent a valid agreement
between the tribe and the state permitting the state court to hear the
matter. A subsequent case, Doe v. Santa Clara Pueblo, 141 N.M. 269,
154 P.3d 644, 646-647 (2007) was heard after a valid gaming compact
was executed between the Tribe and the State. The compact contained
specific language concerning tort claims and jurisdiction The Court
held both that the compact created a concurrent State-Tribal jurisdiction for personal injury tort claims, by agreement of the parties, and
that IGRA permitted such a negotiation and outcome. Diepenbrock v.
Merkel, 33 Kan. ApP.2d 97, 103, 97 P.3d 1063 (Ct. App. 2004) considers
subject matter jurisdiction for a wrongful death action. The deceased
died of a heart attack suffered on tribal land owned in fee by the tribe.
The tribal gaming compact gives the tribe civil jurisdiction for tort matters relating to Class III gaming on their reservation. The Court spoke
to the linchpin of the matter, at p. 1067, recognizing that “[i[t would
undermine the authority of the tribal courts over reservation affairs
and hence would infringe on the right of the Prairie Band Potawatomi
Nation to govern themselves if jurisdiction did not reside in the tribal
courts in this case. . . .” In Kizis v. Morse Diesel International, 260
Conn. 46, 794 A.2d 498 (2002) the Connecticut Supreme Court
addressed the issue of jurisdiction in a case involving a patron of a
tribal casino who brought a negligence action against the Tribe’s
employees seeking damages for personal injuries sustained at the
casino. The Court held that subject matter jurisdiction was lacking in
state court and that the proper forum was the Mohegan Gaming Disputes Court. This result was reached after the Court considered the
express language of the compact, the fact that the tribal constitution
provided a forum and mechanism to redress the patron’s injuries and
IGRA permitted such a result. In Gaming Corporation of America v.
Dorsey & Whitney, 88 F.3d 536 (8th Cir. 1996), a case from the 8th Circuit Court of Appeals involving a lawsuit between a tribal casino
management company and a law firm representing the Ho-Chunk
Nation. Although the lawsuit was not a tort claim from a casino
patron, the Court’s discussion of IGRA is illuminating in that it noted
that “[T]he legislative history indicates that Congress did not intend to
transfer any jurisdictional or regulatory power to the states by means
of IGRA unless a tribe consented to such a transfer in a tribal-state
compact.” The Court also recognized that “ Tribal-State compacts are
at the core of the scheme Congress developed to balance the interests
of the federal government, the states, and the tribes. They are a creation of federal law, and IGRA prescribes ‘the permissible scope of a
Tribal-State compact.’”
5. Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority,
199 F.3d 1123, 1125 (10th Cir. 1999), cert denied, 529 U.S. 1134 (2000).
6. As the majority notes, the compact is a state statute. The primary
goal of statutory interpretation is to ascertain and follow the intent of
the Legislature. King v. King, 2005 OK 4, ¶ 22, 107 P.3d 570; TRW/Reda
Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15; Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm’n, 1988 OK 117, ¶
7, 764 P.2d 172; Hess v. Excise Bd. of McCurtain County, 1985 OK 28, ¶
6, 698 P.2d 930. Where a statute’s meaning is ambiguous or unclear, we
employ rules of statutory construction to give the statute a reasonable
construction that will avoid absurd consequences. Dean v. Multiple
Injury Trust Fund, 2006 OK 78, ¶ 9, 145 P.3d 1097; Head v. McCracken,
Vol. 80 — No. 18 — 7/11/2009
2004 OK 84, ¶ 16, 102 P.3d 670; TRW/Reda Pump v. Brewington, supra.
It is important in construing the Legislative intent behind a word to
consider the whole act in light of its general purpose and objective,
considering relevant portions together to give full force and effect to
each. Saul v. Alcorn, 2007 OK 90, ¶ 19 fn. 31, 176 P.3d 346; King v. King,
supra; Simpson v. Oklahoma Alcoholic Beverage Control Bd., 1965 OK
206, ¶ 18, 409 P.2d 364; Oklahoma Natural Gas Co. v. Corporation
Comm’n of Okla., 1923 OK 400, ¶ 0, 216 P. 917. A statute will be given
a construction, if possible, which renders every word operative, rather
than one which makes some words idle and meaningless. State ex rel.
Thompson v. Ekberg, 1980 OK 91, ¶ 7, 613 P.2d 466; Integrity Mut. Cas.
Co. v. Garrett, 1924 OK 721, ¶ 11, 229 P. 282; Matthews v. Rucker, 1918
OK 29, ¶ 5, 170 P. 492.
We presume that the Legislature expressed its intent and intended
what it expressed, and statutes are interpreted to attain that purpose
and end, championing the broad public policy purposes underlying
them. McClure v. ConocoPhillips, Co, 2006 OK 42, ¶12, 142 P.3d 390;
King v. King, supra; Cox v. State ex rel. Okla. Dept. of Human Services,
2004 OK 17, ¶ 19, 87 P.3d 607.
7. 25 U.S.C.A. §§1901 et seq.
8. 25 U.S.A. §1911 (1978) provides:
(a) Exclusive jurisdiction
An Indian tribe shall have jurisdiction exclusive as to any State
over any child custody proceeding involving an Indian child
who resides or is domiciled within the reservation of such tribe,
except where such jurisdiction is otherwise vested in the State by
existing Federal law. Where an Indian child is a ward of a tribal
court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
(b) Transfer of proceedings; declination by tribal court
In any State court proceeding for the foster care placement of, or
termination of parental rights to, an Indian child not domiciled
or residing within the reservation of the Indian child’s tribe, the
court, in the absence of good cause to the contrary, shall transfer
such proceeding to the jurisdiction of the tribe, absent objection
by either parent, upon the petition of either parent or the Indian
custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such
tribe.
(c) State court proceedings; intervention
termination of parental rights to, an Indian child, the Indian
custodian of the child and the Indian child’s tribe shall have a
right to intervene at any point in the proceeding.
(d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes
The United States, every State, every territory or possession of the
United States, and every Indian tribe shall give full faith and
credit to the public acts, records, and judicial proceedings of any
Indian tribe applicable to Indian child custody proceedings to the
same extent that such entities give full faith and credit to the
public acts, records, and judicial proceedings of any other entity.
9. Art. 1, §8 of the United States Constitution provides that “[t]he
Congress shall have the power to . . .regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.”
10. Art. 1, §3 of the Oklahoma Constitution provides in pertinent
part:
The people inhabiting the State do agree and declare that they
forever disclaim all right and title in or to any unappropriated public
lands lying within the boundaries thereof, and to all lands lying within
said limits owned or held by any Indian, tribe, or nation; and that until
the title to any such public land shall have been extinguished by the
United States, the same shall be and remain subject to the jurisdiction,
disposal, and control of the United States. . . .
11. Title 25 U.S.C. §2701 provides:
The Congress finds that —
(1) numerous Indian tribes have become engaged in or have
licensed gaming activities on Indian lands as a means of generating tribal governmental revenue;
(2) Federal courts have held that section 81 of this title requires
Secretarial review of management contracts dealing with Indian
gaming, but does not provide standards for approval of such
contracts;
(3) existing Federal law does not provide clear standards or regulations for the conduct of gaming on Indian lands;
(4) a principal goal of Federal Indian policy is to promote tribal
economic development, tribal self-sufficiency, and strong tribal
government; and
(5) Indian tribes have the exclusive right to regulate gaming
activity on Indian lands if the gaming activity is not specifically
prohibited by Federal law and is conducted within a State which
does not, as a matter of criminal law and public policy, prohibit
such gaming activity.
Title 25 U.S.C. §2702 provides:
1455
The purpose of this chapter is —
(1) to provide a statutory basis for the operation of gaming by
Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments;
(2) to provide a statutory basis for the regulation of gaming by an
Indian tribe adequate to shield it from organized crime and other
corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that
gaming is conducted fairly and honestly by both the operator and
players; and
(3) to declare that the establishment of independent Federal regulatory authority for gaming on Indian lands, the establishment of
Federal standards for gaming on Indian lands, and the establishment of a National Indian Gaming Commission are necessary to
meet congressional concerns regarding gaming and to protect
such gaming as a means of generating tribal revenue.
12. Title 25 U.S.C. §2710(d)(3)(C) provides:
(C) Any Tribal-State compact negotiated under subparagraph (A) may include provisions relating to —
(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to,
and necessary for, the licensing and regulation of such activity;
(ii) the allocation of criminal and civil jurisdiction between
the State and the Indian tribe necessary for the enforcement of
such laws and regulations;
13. Part 15 of the Compact relates to duration and negotiation and
it provides in pertinent part:
. . .B. This Compact shall have a term which will expire on January 1, 2020, and at that time, if organization licensees or others
are authorized to conduct electronic gaming in any form other
than pari-mutual wagering on live horse racing pursuant to any
governmental action of the state or court order following the
effective date of this Compact, the Compact shall automatically
renew for successive additional fifteen-year terms; provided
that, within one hundred eighty (180) days of the expiration of
this Compact or any renewal thereof, either the tribe or the state,
acting through its Governor, may request to renegotiate the
terms of subsections A and E of Part 11 of this Compact.
C. This Compact shall remain in full force and effect until the
sooner of expiration of the term or until the Compact is terminated by mutual consent of the parties.. . .
The state hereby agrees that this subsection is severable from this
Compact and shall automatically be severed from this Compact
in the event that the United Stated Department of the Interior
determines that these provisions exceed the state’s authority
under IGRA.
ORDER
The Oklahoma State Treasurer’s application
for leave to file an attached statement, filed on
May 15, 2008, is DENIED, and the statement is
STRICKEN.
Done by order of the Supreme Court this
27th day of May, 2008.
/s/ James R. Winchester
CHIEF JUSTICE
REIF, J., with whom EDMONDSON, C.J.,
joins, dissenting.
¶1 I respectfully dissent.
¶2 The case at hand involves the same jurisdictional issue as the case of Cossey v. Cherokee
Nation Enterprises, LLC, 2009 OK 6, ___P.3d___;
that is, whether the courts of the State of Oklahoma have jurisdiction of tort claims against
an Indian tribe that arise from tribal gaming
operations on tribal lands. This controversy
stems from the fact that the Gaming Compacts
between the State and Indian tribes do not specifically state that State courts have jurisdiction
1456
over such claims. The majority opinion in
Cossey and the majority opinion herein interpret the tribe’s “consent to suit in a court of
competent jurisdiction” set forth in the Compacts as conferring jurisdiction on State courts.
In Cossey, I dissented from the majority holding
that this language gives State courts jurisdiction over gaming-related tort claims against
the Cherokee Nation. The same analysis and
authority set forth in my dissent in Cossey lead
me to likewise dissent from the majority holding herein that this language gives State courts
jurisdiction over such tort claims against the
Choctaw Nation.
¶3 Under the majority interpretations, Oklahoma courts acquire concurrent jurisdiction
claims against Indian tribes that have a Gaming Compact with the State. The majority
herein reasons that if tribal courts were intended to be the only courts of competent jurisdiction to adjudicate tort claims against the tribes,
then the tribes would have expressly limited
their consent to suit “in tribal court only.” The
majority cites examples from other compacts
where similar limiting language appears and
emphasizes that it would have been a simple
matter for the tribes to type such a limitation
into their respective Compacts.
¶4 My disagreement with the majority on
this point stems from the fact that the courts of
the State of Oklahoma are not generally courts
of competent jurisdiction to adjudicate tort
claims against Indian tribes for tribal activity
on tribal lands. The majority opinions in both
Cossey and the case at hand acknowledge that
the State of Oklahoma did not assume jurisdiction over tribal lands pursuant to Public Law
280. While state courts can acquire jurisdiction
over tribes incidental to a Congressional delegation of power to the State to regulate tribal
activity, the Federal Indian Gaming Act does
not involve a Congressional delegation of
power to the State of Oklahoma. Finally, when
the State of Oklahoma wants a tribe to submit
to the jurisdiction of a state court under a compact, the State of Oklahoma has explicitly said
so. See 68 O.S.2001 § 500.63(C)(8).
¶5 In my opinion, the key to this controversy
lies in the sovereign to sovereign status quo
that exists between the State of Oklahoma and
Indian tribe at the time they enter into any type
of compact. This status quo is best described in
the Motor Fuel Compact Act: “Both the State of
Oklahoma and the accepting Indian tribe recognize, respect and accept the fact that under
Vol. 80 — No. 18 — 7/11/2009
applicable laws each is a sovereign with dominion over their respective territories and governments.” 68 O.S.2001 § 500.63(C)(10).
¶6 In the Federal Indian Gaming Act, Congress expressly authorized the State and Indian
tribes to change their sovereignty status quo
with respect to (1) the application of the criminal and civil laws and regulations of the Indian
tribe or the State and (2) the allocation of criminal and civil jurisdiction between the State
and Indian tribe. 25 U.S.C. § 2710(d)(3)(C)(i)
and (ii). However, the Gaming Compact
between the State of Oklahoma and the Choctaw Nation does not expressly provide for the
application of the civil laws of the State of
Oklahoma to tribal lands nor does it expressly
allocate civil jurisdiction to the courts of the
State of Oklahoma. Instead, the Compact plainly states: “This Compact shall not alter tribal,
federal or state civil adjudicatory or criminal
jurisdiction.”
¶7 In other words, the Compact does not
alter the sovereignty status quo as to courts
that possess competent jurisdiction to adjudicate a claim against the tribe for tribal activity
on tribal land. In view of this fact, use of the
modifying term “competent jurisdiction” to
describe the court in which the tribe consents
to suit, clearly refers to courts which have jurisdiction to adjudicate claims against the tribe in
the absence of the compact. In this context, the
modifying term “competent jurisdiction” is
just as effective to limit jurisdiction to tribal
courts as saying “in tribal courts only.”
¶8 Even though I dissent from the holdings
of the majority opinions, I readily agree with
the views expressed in the opinions that one of
the key purposes of the Gaming Compacts is to
hold tribes liable for personal injury and property loss sustained by patrons and attributable
to tribal gaming operations. To achieve this
end, the State sought and received (1) the
tribe’s waiver of sovereign immunity and a
claims process to pursue tribal liability comparable to that found in Oklahoma’s Governmental Tort Claims Act, (2) the tribe’s consent to
suit on disputed claims in a court competent to
determine tribal liability, and (3) the tribe’s
assurance that patrons would be afforded due
process in seeking and receiving just and reasonable compensation for a tort claim for personal injury or property damage. Nowhere in
the Compacts at issue, however, did the State
and tribes expressly agree that Oklahoma law
would apply in this process or that State courts
were empowered to determine tribal liability.
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Perhaps my chief disagreement with the majority opinions in Cossey and the case at hand lies
in the fact that they extend state law and state
civil adjudicatory jurisdiction to tribal lands
and tribal governments by implication when
the parties did not expressly agree to do so in
the face of express authority in the Federal
Indian Gaming Act on this subject.
¶9 In my opinion, the only provision in the
Compact that implicates the exercise of jurisdiction over a tort claim by a court other than a
tribal court is the “due process” provision. In
this provision, tribes agree to “ensure that
patrons of a facility are afforded due process in
seeking and receiving just and reasonable compensation for a tort claim for personal injury
and property damage.” Congress has generally
mandated that no Indian tribe in exercising
powers of self-government shall deprive any
person of liberty or property without due process of law. 25 U.S.C. § 1302. This includes
exercise of the tribe’s judicial power. 25 U.S.C.
§ 1301(2). If a tribal court did not afford a tort
claimant due process, or the tribe did not provide a court to determine its liability, such
denials of due process would present a federal
question to support adjudication of a claim in
federal court.
¶10 For the foregoing reasons I would affirm
the district court’s dismissal of the plaintiff’s
district court suit against the Choctaw Casino
of Pocola and the Choctaw Nation.
2009 OK 51
DOROTHY GRIFFITH, Plaintiff/Appellant,
v. CHOCTAW CASINO OF POCOLA,
OKLAHOMA, and the CHOCTAW NATION
OF OKLAHOMA, Defendants/Appellees.
No. 104,887. June 30, 2009
ON APPEAL FROM THE DISTRICT
COURT, LEFLORE COUNTY, OKLAHOMA,
THE HONORABLE TED A. KNIGHT,
DISTRICT JUDGE
¶0 Dorothy Griffith filed a petition in the
state district court against the Choctaw
Nation and its casino in Pocola, Oklahoma,
to recover tort damages. The Choctaw
Nation moved to dismiss on the basis of
tribal sovereign immunity. The district
court dismissed the petition. Griffith
appealed. We retained the appeal to address
an issue of statewide importance: Whether
the state district court is a “court of competent jurisdiction” as that phrase is used in
the statutory class III gaming compact, 3A
1457
O.S.Supp.2004, § 281, offered to federally
recognized Indian tribes in Oklahoma.
DISMISSAL ORDER OF THE DISTRICT
COURT REVERSED; CAUSE REMANDED
Eddie A. McCroskey, Poteau, Oklahoma, for
plaintiff/appellant.
Eric D. Janzen and Brett D. Cable, McAlester,
Oklahoma, for defendants/appellees.
PER CURIAM:
¶1 One question is presented in this appeal:
Is the state district court a court of competent
jurisdiction as used in the gaming compact
between the Choctaw Nation of Oklahoma and
the State of Oklahoma such that the district
court may exercise jurisdiction over this Indian-country arising negligence action filed by a
casino patron against the Choctaw tribe and its
casino? We answer in the affirmative.
I. Facts and Proceedings
¶2 The Choctaw Nation of Oklahoma, a federally recognized Indian tribe1 (Tribe), owns a
casino which it operates through its tribal
enterprise, the Choctaw Casino of Pocola,
Oklahoma (casino). The Tribe offers class III
gaming2 to its casino’s patrons pursuant to the
Indian Gaming Regulatory Act, 25 U.S.C. §§
2701-2722 (1988), and the State-Tribal Gaming
Act, 3A O.S.Supp.2004, §§ 261-281, which
includes the statutory “Model Tribal Gaming
Compact” (compact), id. § 281, signed by the
Tribe and effective February 9, 2005.3
¶3 Dorothy Griffith4 (Griffith) went to the
casino on February 11, 2005. According to
Griffith, as she and other patrons approached
an entrance to the casino, she heard a casino
guard directing patrons to the north entrance.
As Griffith followed the others toward the
north entrance, she stepped into a flowerbed
and fell on her face and head. Griffith was
treated in a hospital emergency room in Fort
Smith, Arkansas. Griffith claimed her injuries
were caused by the negligence of the casino
employees and agents. Griffith submitted
notice of tort claim to the casino and the Tribe
pursuant to the compact.5 When the Tribe and
the casino failed to act upon the tort claim, it
was deemed denied.
¶4 Griffith filed a tort action in the state district court in LeFlore County against the casino
and the Tribe. The Tribe moved to dismiss the
tort action on the basis of tribal sovereign
immunity from suit in state court, arguing that
1458
Oklahoma state courts may not exercise jurisdiction over a sovereign Indian tribe unless
Congress or the Indian tribe has clearly consented to suit in state court or otherwise clearly
waived tribal immunity. Griffith responded
that the Tribe consented to suit in the compact
which states the “tribe consents to suit on a
limited basis with respect to tort claims” and
the “tribe consents to suit against the enterprise in a court of competent jurisdiction with
respect to tort claims.” The Tribe argued that
exclusive jurisdiction over tort claims arising
in Indian country against the Tribe was vested
in the tribal courts at the time the compact was
executed; the compact preserved the tribal
court’s exclusive jurisdiction by declaring that
the compact does not alter tribal, federal or
state adjudicatory jurisdiction; and therefore,
the consent to suit in a court of competent jurisdiction in the compact is consent to suit in
tribal court only. The Honorable Ted A. Knight,
Judge of the District Court, concluded that
tribal courts and federal courts have jurisdiction over Indian tribes but state courts do not
and dismissed the action.
¶5 Griffith appealed the dismissal. The Tribe
moved to make this appeal a companion to the
appeal from the same district court in Dye v.
Choctaw Casino of Pocola, Oklahoma, No.
104,737. The meaning of the phrase “court of
competent jurisdiction” as used in the compact
is also a pivotal issue in the Dye case. This
Court denied the motion, noting the related
Dye case, and assigned the appeal to the Court
of Civil Appeals. Thereafter, this Court received
a certified question as to whether the district
court in Rogers County, Oklahoma, is a “court
of competent jurisdiction” as that phrase is
used in the tribal gaming compact between the
Cherokee Nation and the State of Oklahoma in
Cossey v. Cherokee Nation Enterprises, LLC,
No. 105,300. We withdrew this case from
assignment to the Court of Civil Appeals.
¶6 We recently handed down our opinion in
Cossey v. Cherokee Nation Enterprises, LLC, 2009
OK 6, __ P.3d ___, (mandate issued June 11,
2009), holding that the state district court is a
court of competent jurisdiction as that phrase
is used in the Cherokee Nation’s tribal gaming
compact. Today, in separate opinions in this
case and in the related case of Dye v. Choctaw
Casino of Pocola, Oklahoma, 2009 OK 52, we
determine that Oklahoma district courts are
courts of competent jurisdiction as that phrase
is used in Oklahoma’s statutory model tribal
gaming compact and therefore the state courts
may exercise jurisdiction over the tort claims
Vol. 80 — No. 18 — 7/11/2009
against the Choctaw Nation and its casino in
Pocola, Oklahoma.
II. Standard of Review
¶7 A compact is defined as “an interstate
[intergovernmental] agreement entered into to
handle a particular problem or task. Webster’s
New International Dictionary 461 (3rd ed.
1961). The Tribe urges that the compact is a
purely private contractual matter. However,
the Model Tribal Gaming Compact may not be
viewed as an ordinary private contract because
it is a voter-approved statute codified in the
Oklahoma Statutes. The compact is public law
and must be interpreted by use of canons of
statutory construction. Statutory construction
is a question of law which we review de novo,
without deference to the lower court. Twin Hills
Golf & Country Club, Inc. V. Town of Forest Park,
2005 OK 71, ¶5, 123 P.3d 5, 6.
III. The Indian Gaming Regulatory Act
(IGRA)
¶8 In 1987, the United States Supreme Court
decided that an Indian tribe may operate bingo
games on an Indian reservation located in a
state that permits gaming for any purpose and
that state law does not apply to bingo games
played predominantly by non-Indians coming
onto the Indian reservation. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107
S.Ct. 1083, 94 L.Ed.2d 244 (1987). The Cabazon
ruling impelled Congress to legislate in the
area. Senate Report No. 100-446, reprinted in
1988 U.S.C.C.A.N. 3071 (S. Rep. No. 100-446).
¶9 Congress had considered the problems
and benefits of Indian gaming in committee
hearings for at least three years before Cabazon.
Congress enacted Public Law 100-446, finding
that gaming was a means of economic development for the tribes that would promote tribal
self-sufficiency and strengthened tribal governments. 102 Stat. 2467 (1988). In Public Law
100-446, Congress legalized gaming in Indian
country6 and provided a statutory framework
for regulating gaming in Indian country in
IGRA.7
¶10 Congress attempted to balance the federal, tribal and state interests in Indian gaming
through a system of joint regulation in IGRA.8
IGRA established three classes of Indian gaming. Id. § 2703(6), (7) and (8). As to class I gaming (social games with prizes of minimal value
and tribal ceremonial or celebrating games),
tribal regulation is exclusive. Id. § 2710(a). As to
class II gaming (bingo games played with
Vol. 80 — No. 18 — 7/11/2009
cards, pull-tabs, lotto, punch boards and other
games similar to bingo games played with
cards), tribal regulation is subject to approval
and oversight of the National Indian Gaming
Commission. Id. § 2710(b). As to class III gaming (all gambling not included in class I or class
II gaming), tribal regulation is subject to the
terms of an agreement between the tribe and
the state, a tribal-state compact. Id. § 2710(d).
¶11 In creating the tribal-state compact system and authorizing state regulation of gambling in Indian country, IGRA does not specifically address the subjects of damages to members of the public that may be caused by
wrongful activity of Indian tribes and the judicial relief against the tribes. Instead, IGRA specifically authorizes the tribes and states to
compact as to “any other subjects that are
directly or indirectly related to the operation of
gaming activities.” Id. § 2710(d)(3)(C)(vii).
Tribes and states may allocate the applicable
law and forum for adjudication of patron tort
claims. Id. § 2710(d)(3)(C)(i), (ii).
IV. The State-Tribal Gaming Act and The
Model Tribal Gaming Compact
¶12 In 1988, the Oklahoma Legislature
authorized the Governor to negotiate and enter
into cooperative agreements with federally
recognized Indian tribes in furtherance of federal policy and state-tribal relations, subject to
approval by a legislative Joint Committee on
State-Tribal Relations.9 At that time, Oklahoma
permitted pari-mutuel wagering on horse
races. Our governors negotiated and entered
into off-track wagering compacts with numerous Indian tribes.10 The compacts are filed with
the Oklahoma Secretary of the State as required
by law.11 74 O.S.2001, § 1221(E). Two compacts
with the Tribe in this case, filed with the Oklahoma Secretary of State on December 5, 1996,
and March 28, 2001, allow that a tort claim
against the Tribe may be filed in a court of competent jurisdiction and also allow a tort claimant to file suit in state district court or Tribal
court, at the claimant’s option.12
¶13 In 2004, Oklahoma voters approved
casino-style gambling at horse race tracks and
in Indian country. The Oklahoma Legislature
passed the State-Tribal Gaming Act and sent it
to a vote of the people.13 State Question No.
712, Legislative Referendum No. 335 (codified
at 3A O.S.Supp.2004, §§ 261-281)(approved
November 2, 2004). The Act sets out standards
for the gaming machines and authorizes the
Oklahoma Horse Racing Commission to imple-
1459
ment and enforce the gaming statutes. 3A
O.S.Supp.2004, § 262. It provides for the regulation and oversight of Indian gaming in accordance with the model compact. Id. §§ 262(F)
and 281, Part 5. It also fully sets forth the
“Model Tribal Gaming Compact,” offering
Indian tribes a nearly exclusive right to operate
the covered gaming machines without substantial competition from nontribal entities. Id.
§ 281.
¶14 The model compact is offered, all or
none, to the Indian tribes of Oklahoma, which
if accepted, constitutes the gaming compact
between this state and the accepting tribe for
purposes of IGRA without any further action
on behalf of the State of Oklahoma. Id. § 280.
The model compact consists of Part 1 through
Part 16. The model compact sets the fee to be
paid to the state by the Indian tribe for the
“substantial exclusivity and, consistent with
the goals of IGRA, special opportunities for
tribal economic opportunity through gaming
within the external boundaries of Oklahoma in
respect to the covered games.”14 It defines the
games that the tribes may offer to casino
patrons as a means of generating revenue as
authorized by IGRA,15 places responsibility for
operation and regulation of the casino with the
tribe,16 and places the oversight and monitoring of class III gaming with the Office of State
Finance as the state compliance agency
(SCA).17
¶15 The model compact recites the tribe’s
limited consent to suit for patron tort claims,
mandates liability insurance coverage for the
benefit of the public, prohibits the liability
insurer from asserting tribal immunity, prescribes the procedure for casino patrons to
claim damages, and expresses the tribe’s consent to suit.18 As to tort claims in Part 6(A), the
compact requires the tribal enterprise19 to maintain public liability insurance to cover tort
claims in the minimum amounts set out in the
compact or specified in the Governmental Tort
Claims Act.20 Part 6(A) prescribes a procedure
for seeking damages for tort claims against the
enterprise. That procedure begins with notice
of the tort claim to the TCA or the tribal enterprise for investigation and approval or denial;
and if the tribe or tribal agency denies the
claim, the claimant is authorized to file a judicial proceeding to recover damages not to
exceed the limits of the mandated public liability insurance coverage. Part 6(A) requires the
enterprise to make pamphlets available to the
casino patrons explaining the tort claim procedure and also explaining that the procedure is
1460
exclusive and that if it is not followed, the
claim shall be forever barred.21
¶16 As to suits on tort claims, the tort claimant22 is permitted to maintain a judicial proceeding for any cause arising from a tort claim
subject to the limitations in Part 6(C), and the
tribe23 consents to suit subject to the monetary
limits and procedural conditions in Part 6(A)
and Part 6(C). The tribe also consents to suit
against the enterprise in a court of competent
jurisdiction,24 the language at issue here.25 In
other words, the tribe consents to suit two
times. The first time the tribe consents to suit
without any mention of a court in Part 6(A)(2),
and the second time it consents to suit against
its enterprise with mention of a court of competent jurisdiction in Part 6(C). Even if we were
to find that our state courts are not competent
to entertain a suit against the tribe’s enterprise
in Part 6(C), the tribe has also consented to be
sued in Part 6(A)(2). We find no part in the
compact where the tribe consents to suit “in
tribal court only.”
¶17 The model compact unmistakably gives
the casino patron the right to recover damages
on tort claims against the Indian tribe and
against the tribe’s enterprise. The compact
imposes specific conditions and limits on the
right: 1) it limits the amount of damages for
which the tribe and/or the enterprise will be
liable up to the monetary limits of Oklahoma’s
governmental tort claims law, 2) it restricts
enforcement of a damages award to the liability insurance and prohibits the insurer from
asserting tribal immunity, 3) it prescribes special notice-of-claim procedures for recovery of
damages parallel to the state governmental tort
claims statutory procedure, 4) it authorizes a
judicial remedy to recover tort damages, and 5)
it provides the tribe’s clear and express consent
to suit for damages. The compact does not,
however, restrict the casino patron to tort damages under tribal law nor does it limit the
casino patron to suit against the tribe or its
enterprise in tribal court.
¶18 Although there is no language in the
model compact making tribal law or tribal
courts the exclusive protection for a wrongfully
injured casino patron, the Tribe takes the position that Part 9 limits its consent to suit to the
tribal courts only. Part 9 reads: “This compact
shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction.” Part 9 expresses
intent not to “alter” whatever court has adjudicatory jurisdiction, but it does nothing to define
a court of competent jurisdiction.26
Vol. 80 — No. 18 — 7/11/2009
¶19 The model compact governs Indiancountry gaming activities by consent of the
Indian tribe. It acknowledges that the “tribe is
a federally recognized tribal government possessing sovereign powers and the rights of selfgovernment,”27 that the “state and the tribe
maintain a government-to-government relationship, and that this Compact will help foster
mutual respect and understanding among
Indians and non-Indians.”28 Nothing in the
compact provides that patron tort claims are to
be adjudicated only in tribal court. Had that
been the intent of the tribes and the state, the
simple words “in tribal court only” could have
been included in the compact.
¶20 We have carefully perused the model
compact and studied the provisions in Part 6
pertaining to a casino patron’s tort claim against
the tribe. We conclude that the Tribe clearly
tort damages by a casino patron, whether suit
be brought in state court, federal court, or
tribal court.
V. “Court of Competent Jurisdiction”
¶21 Griffith took a position that the state district court is the “court of competent jurisdiction” by default because this is not a federalquestion claim, the Tribe is not a citizen for
purposes of diversity of citizenship, and the
Tribe had no tribal courts when the statutory
compact was negotiated, passed by the Oklahoma Legislature, approved by a vote of the
people, signed by the Tribe, and/or published
by the United States Secretary of the Interior.
The Tribe, on the other hand, took an unsettled
position that exclusive jurisdiction over Indiancountry arising torts was vested in the tribal
courts at the time the compact was executed,
the compact preserved the tribal court’s exclusive jurisdiction, and therefore, the consent to
suit in a court of competent jurisdiction in the
compact is consent to suit in tribal court only.
¶22 The Tribe argued that this Court has
already recognized that a controversy such as
the instant one lies exclusively in tribal court.
The Tribe relies on an unpublished order of this
Court in Muskogee (Creek) Nation Gaming
Commission v. The Honorable Mary Fitzgerald, District Judge, No. 104,726. In that original
action, the Creek Nation asked this Court to
prohibit the state district court judge from proceeding further in Manwarring v. Muskogee
(Creek) Nation Gaming Commission, No. CJ207-745, Tulsa County District Court. This
Court assumed original jurisdiction and issued
Vol. 80 — No. 18 — 7/11/2009
the writ in an unpublished order. An unpublished order has no precedential value. Okla.
Sup.Ct.R.1.200(b)(1) and (7), 12 O.S.2001, ch.15,
app. I (Disposition of a case without a formal
published opinion means that the Court did
not believe the case involved any new point of
law making the decision of value as precedent.). The non-precedential order in the Muskogee (Creek) Nation Gaming Commission case
settled an issue for the involved parties only.
An unpublished order is the law of the case but
not the law of the State.
¶23 The Tribe also made a very tenuous
argument that the meaning of the words “court
of competent jurisdiction” “are not for this Court
to decide” because Part 12 of the compact
expressly provides that interpretation issues
shall be decided in arbitration with review in
the federal courts. Part 12 of the compact deals
with resolution of disputes between the parties
— the tribe and the state. Part 12(2) is the “parties consent to the jurisdiction of such arbitration [American Arbitration Association] forum
and court [federal district court] for such limited purposes and no other, and each waives
immunity with respect thereto.” Without ruling, we express doubt that this is a dispute
contemplated by Part 12 of the compact.
¶24 The phrase “court of competent jurisdiction” as used in federal statutes has long been
construed to mean federal and state courts,
Blackburn v. Portland Gold Mining Co., 175
U.S.571, 20 S.Ct. 222, 44 L.Ed.276 (1900), where
the statute did not “in express language prescribe either a Federal court or a state court,
and did not provide for exclusive or concurrent
jurisdiction.” Shoshone Mining Co. v. Rutter, 177
U.S. 505, 506, 20 S.Ct. 726, 44 L.Ed.2d 864
(1900). State jurisprudence is in accord. Lewis v.
Sac and Fox Tribe of Okla. Housing Authority,
1994 OK 20, ¶15, 896 P.2d 503, 509-510.
¶25 Federal, state, and even tribal laws utilize
the phrase “court of competent jurisdiction.”29
Under basic rules of federal statutory construction, where the statute does not define its terms,
they must be given their ordinary and natural
meaning, Smith v. U.S., 508 U.S. 223, 228, 113
S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993); and if
the phrase is not commonly understood, the
court will inquire into the contemporaneous
understanding, Roadway Express, Inc. v. Piper,
447 U.S. 752, 759, 100 S.Ct. 2455, 2460, 65
L.Ed.2d 488 (1980), or the common law meaning
of the phrase. Gilbert v. U.S., 370 U.S. 650, 655, 82
S.Ct. 1399, 1402, 8 L.Ed.2d 750 (1962).
1461
¶26 We recognize that as a matter of federal
law, tribal immunity from suit in state court is
not subject to diminution by the states and that
an Indian tribe is subject to suit where Congress has authorized the suit or the tribe has
waived immunity. Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 756, 118
S.Ct. 1700, 1703, 140 L.Ed.2d 981 (1998). We
also recognize that a tribe’s waiver of immunity to suit in state court does not require specific or magic words — an arbitration provision
together with a choice-of-law provision may
constitute an unequivocal waiver of tribal
immunity to suit in state court. C & L Enterprises, Inc. v. Citizens Band Potawatomi Indian
Tribe of Okla., 532 U.S. 411, 422, 121 S.Ct. 1589,
1595-1596, 149 L.Ed.2d 623 (2001). Contrary to
the no-magic-words ruling in C & L Enterprises,
the Tribe insists that its consent to suit in the
compact is not consent to suit in state court
unless it literally uses the words “consents to
suit in state court.” We conclude that the state
district court is a court of competent jurisdiction as that term is used in the Model Tribal
Gaming Compact codified at 3A O.S. Supp.2004,
§ 281. Our conclusion does not change, diminish, or expand the jurisdiction of tribal courts
nor does it take away the right of a tort claimant to select the forum — state, federal, or
tribal — to file a tort action.
VI. Summary
¶27 In summary, the Tribe claims that “in a
court of competent jurisdiction” means “in
tribal court only.” But the model compact does
not say “in tribal court only.” The compact says
the “tribe consents to suit . . . with respect to
tort claims” and the “tribe consents to suit
against the enterprise in a court of competent
jurisdiction with respect to a tort claim.” The
language in the compact could have easily
restricted casino patrons’ tort remedy to tribal
courts, if the tribal government representatives
and the state government representatives who
proposed the state-tribal gaming legislation
directed that those words be used in the measure. “In tribal court only” could have been
typed on the keyboard by whoever typed the
proposed compact. It is that simple. The language in other tribal compacts have specified
that tort actions against the tribe may be filed
in tribal court only. We reject the Tribe’s claim
that the proponents of the state-tribal gaming
legislation really intended to waive tribal
immunity “in tribal court only” when the compact does not disclose that intent.
1462
¶28 We hold that Oklahoma district courts
are “courts of competent jurisdiction” as that
phrase is used in the Model Tribal Gaming
Compact codified at 3A O.S. Supp.2004, § 281.
Nothing in this opinion should be taken as a
holding that a tribal court is not a “court of
competent jurisdiction” or should be taken as
eliminating the tribal court as a forum available to a tort claimant if the claimant chooses to
file suit in tribal court.
DISMISSAL ORDER OF THE DISTRICT
COURT REVERSED; CAUSE REMANDED
Taylor, V.C.J. (by separate writing), and Opala
(by separate writing), Watt, Winchester, and
Colbert, JJ., concur.
Kauger, J., (by separate writing) concurs in part
and dissents in part.
Edmondson, C.J., and Hargrave and Reif (by
separate writing), JJ., dissent.
1. Notice of Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs published in
the Federal Register on April 4, 2008. 73 FR 18553-01. The Bureau of
Indian Affairs lists 38 federally-recognized Indian tribes in Oklahoma
in its notice published in the Federal Registry on July 12, 2002.
2. Class III gaming is high-stakes casino-style gambling such as electronic games of chance, slot machines and banking card games. 25 U.S.C.
§ 2703(8); 3A O.S.Supp.2004, § 281, Part 3(5); Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 48 n.1, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).
3. The Tribe duly executed the compact and submitted it to the
Secretary of the Interior for approval. The Secretary of the Interior did
not approve the compact. The compact was considered approved
forty-five days after its submission, 25 U.S.C. § 2710(d)(7)(C), and
became effective February 9, 2005, the date notice was published in the
Federal Register. 70 FR 6903.
4. There are no allegations that Dorothy Griffith is a member of the
Choctaw Nation or that she is subject to tribal regulation as a tribal
member.
5. In Part 6, the compact sets forth a pre-judicial procedure similar
to that in the state’s statutory regime for governmental tort claims. The
pre-judicial procedure requires a tort claimant to give notice of the
claim to the Indian tribe and its enterprise as a prerequisite to filing a
judicial proceeding. If the tribe or the enterprise does not act upon the
notice, the tort claim is deemed denied. Upon denial of the claim, the
claimant may seek a judicial remedy.
6. 18 U.S.C. § 1166 legalizes Indian-country gaming conducted in
compliance with IGRA; imposes state gambling law, including the
licensing, regulation, or prohibition of gambling, upon any other
Indian-country gambling in the same manner and to the same extent
elsewhere in the state; and places jurisdiction with the United States to
prosecute violations of the state gambling laws unless the Indian tribe
consents to state jurisdiction. 18 U.S.C. §§ 1167 and 1168 criminalize
thefts from Indian casinos.
7. Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2722 (1988).
8. IGRA provided a statutory basis for the operation and regulation
of class III gaming by Indian tribes and for the adoption of federal
standards for class II gaming on Indian lands, 25 U.S.C. § 2702; created
the National Indian Gaming Commission within the U.S. Department
of Interior, id. § 2704, to monitor class II gaming operations and to
approve tribal ordinances and tribal management contracts for class II
and class III gaming, id. § 2706; and established a tribal-state compact
system to regulate class III gaming. Id. § 2710.
9. 1988 Okla. Sess. Laws, ch. 160 (codified at 74 O.S.Supp.1988, §§
1221-1222). In 1989, the Oklahoma Legislature amended § 1221 to also
authorize political subdivisions to enter into agreements with the tribes
on subjects of mutual interest such as law enforcement. 1989 Okla. Sess.
Laws, ch. 296, § 1. In 1991, the Legislature required cooperative agreements, upon approval by the Joint Committee on State-Tribal Relations,
to be filed with the Secretary of State. 1991 Okla. Sess. Laws, ch. 202, § 2
(codified at 74 O.S.1991, § 1221(E)). In 1993, the Legislature provided for
Vol. 80 — No. 18 — 7/11/2009
the Oklahoma State Bureau of Investigation to monitor any Indian gaming compacts approved under §§ 1221-1222. 1993 Okla. Sess. Laws, ch.
305, § 1 (codified at 74 O.S.Supp.1993, § 1223). Further, in 1992, the Oklahoma Legislature authorized the Governor to enter into cigarette and
tobacco products tax compacts with the tribes. 1992 Okla. Sess. Laws,
ch.339 (codified at 68 O.S.Supp.1992, § 34).
10. The U.S. Supreme Court has not determined where the authority lies within a state’s governmental framework to compact with
Indian tribes. It has ruled that where the involved federal statute is
silent on the issue of state authority, that issue will be determined
under state law. See Washington v. Confederated Bands and Tribes of the
Yakima Indian Nations, 439 U.S. 463, 493 n. 39, 999 S.Ct. 740, 757 n. 39,
58 L.Ed.2d 740 (1979); West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28,
71 S.Ct. 557, 560, 95 L.Ed.2d 713 (1951). IGRA is silent as to where state
authority lies to enter into gaming compacts with Indian tribes.
11. We note that several of the off-track wagering compacts filed
with the Oklahoma Secretary of State include a notice-of-tort-claim
procedure and authorize a tort claimant to file suit against the tribe
only in tribal court. The following compacts provide that “upon denial
of a claim redress must be sought exclusively in Tribe’s Courts”: 1)
Peoria Tribe of Indians filed October 18, 2004, 2) Seneca-Cayuga Tribe
filed October 18, 2001, and 3) Absentee Shawnee Tribe filed March 28,
2001. The following compacts, in similar language, provide that “upon
denial of a claim redress must be sought exclusively in Nation’s
Courts”: 1) Chickasaw Nation filed August 2, 2004, 2) Ponca Tribe filed
October 19, 2001, and 3) Kaw Nation filed March 28, 2001. Two compacts provide for suit in the Court of Indian Offenses created in the
Code of Federal Regulations and referred to as CFR courts. The compact with the Quapaw Tribe filed January 29, 2002, provides: “Such
notices shall explain that upon denial of a claim redress must be
sought exclusively against the operator in C.F.R. Court. Such notices
will also indicate that the Quapaw Tribe of Oklahoma does not in any
way agree to be amenable to suit for any reason.” The compact with
Seminole Nation filed March 28, 2001, provides: “No action for any
cause arising from personal injury, property damage . . . shall be maintained unless valid notice is given and the action is commenced in a
Tribe’s CFR court.” The compact with the Comanche Tribe filed March
20, 2001, is different. It provides: “Comanche hereby transfers to the
State of Oklahoma concurrent civil and criminal jurisdiction, except for
taxing authority, to enforce the Act and Rules . . . [and any] violation of
the laws of the State of Oklahoma, which shall be enforceable in a court
of competent jurisdiction.”
With the exception of the Comanche compact, these compacts also
require public liability insurance which “shall include an endorsement
that the insurer shall not invoke tribal sovereign immunity up to the
limits of the policy . . .[and that] the Tribe explicitly waives its immunity from suit.” They also provide that the “compact shall be governed
and construed in accordance with the laws of the United States, the
State, and the laws of the Nation [or Tribe], whichever are applicable.
Our research does not reveal that any of these compacts has been
the subject of a suit in state court. We note these compacts only for the
historical value.
12. Both of the off-track wagering compacts of the Tribe include a
notice-of-tort-claim procedure for the patrons as a prerequisite to filing
suit: “No action for any cause arising from personal injury, property
damage, or patron gaming dispute shall be maintained unless valid
notice has been given and the action is commenced in a court of competent jurisdiction within 180 days after denial of the claim as set forth
herein.” Both provide that “upon exhaustion of any claim against the
Tribe properly filed as provided above, the claimant, may, at his or her
option, file an action in either the state district court, or the Tribal Court
on the claim.” We note these compacts only for the historical value.
13. The voters were informed of the contents of the State-Tribal
Gaming Act in the ballot title. The Ballot Title in the legislative referendum proposing enactment of State-Tribal Gaming Act reads:
This measure creates the State-Tribal Gaming Act. It would allow
some types of gaming machines at some horse race tracks in this
state. The Oklahoma Horse Racing Commission would oversee
the new types of gaming machines. It would require that a portion
of the money wagered on such gaming be paid to the state. Some
of the money would go to purses for horse races. Some of the
money would go to the horse race tracks. The measure also provides a model compact which Indian tribes may enter into and
then operate such gaming machines on Indian lands. The model
compact provides regulatory controls for the gaming authorized
by the compact. The Office of State Finance would have the
authority to oversee this gaming by the tribes. The state’s portion
of the money from the gaming authorized by this act would go for
treatment of compulsive gambling disorders, to the Education
Reform Revolving Fund and for college scholarships.
2004 Okla.Sess.Laws, ch. 316.
14. 3A O.S.Supp.2004, § 281, Part 11(A).
15. Id. § 281, Part 3.
16. Id. § 281, Parts 4 & 5.
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17. Id. § 281, Part 8 (entitled STATE MONITORING OF COMPACT,
which authorizes state oversight of tribal regulation of class III gaming
for compliance with state law as well as federal or tribal law). The term
“monitoring” is used in the compact similar to IGRA’s use of that term
in describing the powers of the National Indian Gaming Commission
that regulates and oversees the tribal regulation of class II gaming. 25
U.S.C. § 2706(b).
18. Id. § 281, Part 6(A) (relating to tort claims), Part 6(B) (relating to
prize claims), and Part 6(C) (relating to suits against the tribe or tribal
agency).
19. Id. § 281, Part 3(13)(defining the tribal enterprise as the tribe or
tribal agency).
20. The state statutory regime codified at 51 O.S.2001, §§ 151-170
waives the state’s and its political subdivisions’ governmental immunity for tort claims and allows the state to be sued in a court of competent jurisdiction. Id. § 152(1))
21. Section 281, Part 6(A) of the model compact reads:
A. Tort Claims. The enterprise shall ensure that patrons of a
facility are afforded due process in seeking and receiving just
and reasonable compensation for a tort claim for personal injury
or property damage against the enterprise arising out of incidents occurring at a facility, hereinafter “tort claim”, as follows:
1. During the term of this Compact, the enterprise shall
maintain public liability insurance for the express purpose of
covering and satisfying tort claims. The insurance shall have
liability limits of not less than Two Hundred Fifty Thousand Dollars ($250,000.00) for any one person and Two Million Dollars
($2,000,000.00) for any one occurrence for personal injury, and
One Million Dollars ($1,000,000.00) for any one occurrence for
property damage, hereinafter the “limit of liability”, or the corresponding limits under the Governmental Tort Claims Act,
whichever is greater. No tort claim shall be paid, or be the subject
of any award, in excess of the limit of liability;
2. The tribe consents to suit on a limited basis with respect
to tort claims subject to the limitations set forth in this subsection
and subsection C of this Part. No consents to suit with respect to
tort claims, or as to any other claims against the tribe shall be
deemed to have been made under this Compact, except as provided in subsections B and C of this Part;
3. The enterprise’s insurance policy shall include an endorsement providing that the insurer may not invoke tribal sovereign
immunity in connection with any claim made within the limit of
liability if the claim complies with the limited consent provisions
of subsection C of this Part. Copies of all such insurance policies
shall be forwarded to the SCA;
4. Any patron having a tort claim shall file a written tort
claim notice by delivery to the enterprise or the TCA. The date
the tort claim notice is filed with the enterprise or the TCA shall
be deemed the official date of filing the tort claim notice. The tort
claim notice shall be filed within one (1) year of the date of the
event which allegedly caused the claimed loss. Failure to file the
tort claim notice during such period of time shall forever bar
such tort claim; provided that a tort claim notice filed with the
enterprise or the TCA more than ninety (90) days, but within one
(1) year, after the event shall be deemed to be timely filed, but
any judgment thereon shall be reduced by ten percent (10%).
5. If the tort claim notice is filed with the TCA, the TCA shall
forward a copy of the tort claim to the enterprise and the SCA
within forty-eight (48) hours of filing, and if the tort claim notice
is filed with the enterprise, the enterprise shall forward a copy of
the tort claim to the TCA and the SCA within forty-eight (48)
hours of filing;
6. The tort claim notice shall state the date, time, place and
circumstances of the incident upon which the tort claim is based,
the identity of any persons known to have information regarding
the incident, including employees or others involved in or who
witnessed the incident, the amount of compensation and the
basis for said relief; the name, address and telephone number of
the claimant, and the name, address and telephone number of
any representative authorized to act or settle the claim on behalf
of the claimant;
7. All tort claim notices shall be signed by the claimant. The
rules and regulations may additionally require that the tort claim
notices be signed under oath. The rules and regulations [TCA
rules and regulations as defined in Part 3(22)] may also require
that as a condition of prosecuting tort claims, the claimant shall
appear to be interviewed or deposed at least once under reasonable circumstances, which shall include the attendance of the
claimant’s legal counsel if requested; provided that the enterprise shall afford claimant at least thirty (30) days’ written notice
of the interview or deposition; and provided further that the
claimant’s failure to appear without cause for any interview or
deposition properly noticed pursuant to this paragraph shall be
deemed a voluntary withdrawal of the tort claim;
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8. The enterprise shall promptly review, investigate, and
make a determination regarding the tort claim. Any portion of a
tort claim which is unresolved shall be deemed denied if the
enterprise fails to notify the claimant in writing of its approval
within ninety (90) days of the filing date, unless the parties by
written agreement extend the date by which a denial shall be
deemed issued if no other action is taken. Each extension shall be
for no more than ninety (90) days, but there shall be no limit on
the number of written agreements for extensions, provided that
no written agreement for extension shall be valid unless signed
by the claimant and an authorized representative of the enterprise. The claimant and the enterprise may continue attempts to
settle a claim beyond an extended date; provided, settlement
negotiations shall not extend the date of denial in the absence of
a written agreement for extension as required by this paragraph;
9. A judicial proceeding for any cause arising from a tort
claim may be maintained in accordance with and subject to the
limitations of subsection C of this Part only if the following
requirements have been met:
a. the claimant has followed all procedures required by this
Part, including, without limitation, the delivery of a valid
and timely written tort claim notice to the enterprise,
b. the enterprise has denied the tort claim, and
c. the claimant has filed the judicial proceeding no later than
the one-hundred-eightieth day after denial of the claim by
the enterprise; provided, that neither the claimant nor the
enterprise may agree to extend the time to commence a judicial proceeding; and
10. Notices explaining the procedure and time limitations
with respect to making a tort claim shall be prominently posted
in the facility. Such notices shall explain the method and places
for making a tort claim, that this procedure is the exclusive
method of making a tort claim, and that claims that do not follow
these procedures shall be forever barred. The enterprise shall
make pamphlets containing the requirements in this subsection
readily available to all patrons of the facility and shall provide
such pamphlets to a claimant within five (5) days of the filing of
a claim.
(Bold Added.)
22. Id. § 281, Part 6(A)(9).
23. Id. § 281, Part 6(A)(2).
24. Id. § 281, Part 6(C).
25. Section 281, Part 6(C) applicable to tort claims reads:
C. Limited Consent to Suit for Tort Claims and Prize Claims.
The tribe consents to suit against the enterprise in a court of
competent jurisdiction with respect to a tort claim or prize claim
if all requirements of paragraph 9 of subsection A or all requirements of paragraph 11 of subsection B of this Part have been met;
provided that such consent shall be subject to the following
additional conditions and limitations:
1. For tort claims, consent to suit is granted only to the extent
such claim or any award or judgment rendered thereon does not
exceed the limit of liability. Under no circumstances shall any
consent to suit be effective as to any award which exceeds such
applicable amounts. This consent shall only extend to the patron
actually claiming to have been injured. A tort claim shall not be
assignable. In the event any assignment of the tort claim is made
in violation of this Compact, or any person other than the patron
claiming the injury becomes a party to any action hereunder, this
consent shall be deemed revoked for all purposes. Notwithstanding the foregoing, consent to suit shall not be revoked if an
action on a tort claim is filed by (i) a court appointed representative of a claimant’s estate, (ii) an indispensable party, or (iii) a
health provider or other party subrogated to the claimant’s
rights by virtue of any insurance policy; provided, that nothing
herein is intended to, or shall constitute a consent to suit against
the enterprise as to such party except to the extent such party’s
claim is:
a. in lieu of and identical to the claim that would have been
made by the claimant directly but for the appointment of
said representative or indispensable party, and participation
of such other party is in lieu of and not in addition to pursuit
of the claim by the patron, and
b. the claim of such other party would have been subject to a
consent to suit hereunder if it had been made by the claimant directly; and
....
(Bold added.)
26. The state court adjudicatory power is fixed by our state constitution, Okla. Const. art. VII, subject to our federal constitution, Okla.
Const. art. I, § 1, and protected from legislative encroachment by our
separation of powers rule, Okla. Const. art. IV, § 1. Generally a state
statute such as the model compact cannot alter the adjudicatory juris-
1464
diction constitutionally vested in our state courts nor can a state statute
alter federal or tribal adjudicatory powers.
27. 3A O.S.Supp.2004, § 281, Part 2(1).
28. Id. § 281, Part 2(3).
29. The federal statute, 15 U.S.C. § 3007 (1978), provides for jurisdiction over a civil action involving interstate horseracing in the federal district court in the host state or the off-track state concurrent with
that of any state court of competent jurisdiction located in the host
state or the off-track state. The Okla. Const. art. VIII, § 1 requires that
elected state officers shall automatically be suspended upon their
being declared guilty of a felony by a court of competent jurisdiction.
And, the Constitution of the Choctaw Nation (July 9, 1983), art. VI, § 5,
provides that “[n]o person who has been convicted of a felony by a
court of competent jurisdiction shall be eligible to hold any elective or
appointive office in the Choctaw Nation.” (Bold added.)
TAYLOR, V.C.J., concurring:
¶1 Today’s per curiam opinion holds that our
district courts are courts of competent jurisdiction in the state Model Tribal Gaming Compact
(model compact), 3A O.S.Supp.2004, § 281. Our
holding is rested upon the federal Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2722, the
state statutory model compact, and basic rules of
statutory construction. I join fully in our holding, and I concur fully in today’s per curiam opinion. I write separately to direct attention to the
compact language requiring compliance with
state law in the operation of Indian gambling
casinos and to emphasize the conformity of
today’s opinion and our recent opinion in Cossey
v. Cherokee Nation Enterprises, LLC, 2009 OK 6, __
_ P.3d ___ (mandate issued June 11, 2009).
¶2 The model compact, at Part 8, provides
that the operation of a class III gaming casino
in Indian country must comply with state law.
Part 8 delineates the oversight and monitoring
duties of the Office of State Finance as the state
compliance agent (SCA), requiring the SCA to
give written notice of any suspected “violation
of this Compact or of law” to the tribal compliance officer (TCA), model compact at Part 8(A),
and to report any violations of “federal, state,
or tribal laws, the rules and regulations, or this
Compact” to the TCA. Id. at Part 8(C)(bold
added). Part 8 limits the state’s oversight by
withholding authority from the state “to regulate the tribe’s government, including the TCA,
or to interfere with the tribe’s selection of its
governmental officers.” Id. at Part 8(D). The
importance of Part 8 here is that it plainly
requires Indian tribes to comply with state law
in operating their gambling casinos, except
when state law interferes with tribal self-government. In my view, Part 8 is strong support
for including state district courts within the
meaning of “courts of competent jurisdiction.”
¶3 Also, our opinion in Cossey v. Cherokee
Nation Enterprises, LLC compels today’s holding. Notwithstanding the many factors that
distinguish Cossey from the instant case, the
Vol. 80 — No. 18 — 7/11/2009
primary issue in Cossey was the same as the
issue here — whether the state district court is
a court of competent jurisdiction to entertain
an Indian casino patron’s tort claim against an
Indian tribe under the model compact. Cossey
analyzed federal and state jurisprudence in
assigning meaning to “court of competent
jurisprudence” in the model compact1 and
reached the same conclusion that today’s per
curiam opinion reached through its statutory
construction analysis.
1. Cossey followed 1) state jurisprudence for the meaning of “court
of competent jurisdiction,” relying on Ex Parte Plaistridge, 1918 OK 352,
173 P. 645, and Ex Parte Justus, 1909 OK CR 132, 104 P. 933; 2) federal
jurisprudence for the notion of “dual sovereignty,” relying on Tafflin v.
Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990), and Nevada v.
Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (“Dual sovereignty” recognizes that state courts have inherent authority and
concurrent jurisdiction with the federal courts to adjudicate claims
arising under federal law in the absence of specific congressional
enactment to the contrary.); and 3) federal Indian jurisprudence for the
prohibition against state interference with tribal self-governance and
internal affairs, including such cases as Montana v. United States, 450
U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), Strate v. A-1 Contractors,
520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 398 (1997), Nevada v. Hicks, 533
U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398(2001), and Plains Commerce
Bank v. Long Family Land and Cattle Company, __ U.S. __, 128 S.Ct. 2709,
171 L.Ed2d 457 (2008).
OPALA, J., concurring
¶1 I write in concurrence to support the
court’s construction of the key phrase “the
court of competent jurisdiction.”
¶2 The claim we deal with in this cause — a
common law tort — was created by the cooperative effort of three separate levels of governmental power: (1) the federal sovereign’s
authorization of the compact1 that created the
claim before us and by (2) the State of Oklahoma entering into a federally-authorized
compact2 with (3) the Choctaw Nation. It is in
light of the tripartite joinder of sovereign powers that we must interpret the key phrase “a
court of competent jurisdiction.”.3 We do so
here by not excluding any one of the three
birth-giving participants. Instead, we acknowledge that each of them, in its own court, may
assume original jurisdiction over the casino
patron’s tort claim. The Nation has agreed to
share jurisdiction with the other two sovereigns, the State and the federal government.
The casino patron’s tort claim is not, and cannot be, denominated as Indian law.4 Our interpretation opens the door and keeps it widely
open until one or more of the participating
sovereigns should decline the opportunity to
extend its adjudicative power over a casino
patron’s cause of action. Inasmuch as the casino patron’s tort claim is a product created by a
legal cooperation among the three sovereigns,
the construction to be placed on the key phrase
Vol. 80 — No. 18 — 7/11/2009
“the court of competent jurisdiction” must
extend equal treatment to each of these participating governments. The compact’s textual
impact plainly contemplates that jurisdiction
over a casino patron’s tort claim is to be shared.
See Parts 6 and 9.5 Over time, if all three sovereigns will continue to participate in the adjudicative process by entertaining the claims in
their courts, a harmonizing jurisprudence will
doubtless evolve for the three forensic systems
to remain consistent and parallel.
¶3 A casino patron’s tort claim for injury sustained on tribal casino’s premises is governed
neither by tribal law nor by Oklahoma state law.
Rather, it is the product of compact-agreed terms
of liability that may be imposed. A compact is
defined as “an interstate [intergovernmental]
agreement entered into to handle a particular
problem or task.”6 A claim crafted pursuant to
compact law — the law agreed upon by the parties to the compact-authorized negotiations —
should be enforceable by the signatory parties,
the state and the tribe as well as by the federal
courts. In the absence of a definition different
from that which stands crafted by the text for the
key term “the court of competent jurisdiction”,
the phrase used by the compact should include a
proper court of all three powers which participated in creating the compact.
1. 25 U.S.C. §2710(d).
2. 3A O.S. Supp.2004, §381.
3. “This Compact shall not alter tribal, federal or state civil and
criminal jurisdiction”. We are not concerned here about pre-existing
federal law of Indian country but about the new laws created by Choctaw Nation/Oklahoma compact.
4. U.S. v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct 1026,
1030 (1989) (holding that absent an ambiguity or a result that is at odds
with a statute’s purposes, statutory provisions must be interpreted
according to their plain meaning).
5. Part 6 sets forth the casino patron’s tort claims. Part 9 provides
that tribal, federal and state governments retain their respective spheres
of civil adjudicative jurisdiction over gaming in Indian country.
6. Webster’s New International Dictionary 461 (3rd ed. 1961).
KAUGER, J., concurring in part/dissenting in
part:
¶1 My analysis of the core issues remains
unchanged from what I expressed in Cossey v.
Cherokee Nation Enterprises, LLC., 2009 OK 6,
___ P.3d ___ (rehearing denied June 11, 2009). I
was troubled by two implications in Cossey.
The writing implied that: 1) tribal courts are
not courts of competent jurisdiction; and 2)
jurisdiction might depend on whether the
casino patron was an Indian or a non-Indian.
Today’s opinion clearly dispels these concerns,
holding that: 1) the casino patron may select
tribal courts as a forum for bringing such a tort
claim because a tribal court is “court of competent jurisdiction;” and 2) recognizing that the
1465
plaintiff is a non-Indian, non-tribal member
who voluntarily entered onto tribal land to do
business, thus subjecting herself to potential
tribal court jurisdiction.
¶2 Nevertheless, the majority’s analysis of
the issues continues to bother me. The majority
opinion states: “[w]e conclude that the Tribe
clearly and unequivocally consented to be
sued for tort damages by a casino patron
whether suit be brought in state court, federal
court or tribal court.” I agree that the first portion of this statement is true, the Tribe clearly
tort damages by a casino patron. It is the
remainder of the statement which is unsupported. The crux of this dispute, and the reason
for five separate writings in this cause as well
as five separate writings in Cossey, is that the
compact is obviously ambiguous because it
does not clearly and unequivocally state which
court has jurisdiction.
¶3 The majority makes the finding of clarity
without supporting evidence. Nevertheless,
the Court might have had the opportunity to
shed light on this ambiguity. In the companion
case of Dye v. Choctaw Casino of Pocola, No.
104,737, 2009 OK __, ___ P.3d ___ also decided
today, the State Treasurer, in his capacity as
lead State negotiator for the 2004 Model Gaming Compact, filed leave of the Court on May
15, 2008, to file a statement regarding the compact. However, the Court is precluded from
considering this statement [whatever it says]
because the application was denied and the
statement was stricken from the record on May
27, 2008.1 We are once again faced with the
same problem as in Cossey — the need to
remand the matter to consider extrinsic evidence of the parties’ intent.2
cuted has not been well-settled. Yet, settling
this question is critical to the analysis because
of the Part 9 language. Neither the majority in
today’s opinion nor Cossey discusses or analyzes any of the cases which have addressed
this issue and unanimously held that the tribal
courts have jurisdiction (some negotiated
under the compact, some inherent).4 In addition to side stepping the issue, the Court
appears to have enlarged state court jurisdiction beyond what existed prior to the compacts. The Court concludes that the words
“tribal court only” could have been typed in
the compact, but were not. The Court also
notes that the tribe consents to suit twice in the
compact, yet it only refers to “court of competent jurisdiction” rather than specifically providing for suit in “tribal court only.”
¶6 Part 6(A)(2), in which the tribe consents to
suit, is limited by subsection “C of this part.”
Subsection C contains the language regarding
court of competent jurisdiction. Obviously, the
compact could have referred to “tribal court
only,” “state court only,” or “both” courts to
reflect the parties’ intent, but it does not. Consequently, the portion of the compact in which
existing jurisdiction is not altered becomes
imperative when determining intent — yet the
question remains ignored and the Court merely
pontificates about the meaning. I do believe
that because one size doesn’t fit all insofar as
tribal courts are concerned, the compact language was deliberately left nonspecific so that
the compact could be adapted to fit various
jurisdictional scenarios.
¶4 I agree that there is no express, specific
language in the model compact making tribal
law or tribal courts the exclusive forum for a
wrongfully injured casino patron. This leads to
the compact’s ambiguity. The compact does,
however, specifically provide, in Part 9, that
“[t]his compact shall not alter tribal, federal or
state civil adjudicatory or criminal jurisdiction.” Alteration may occur by expansion or
contraction. Because Oklahoma is not a P.L. 280
state,3 I believe that what is clear is that state
court jurisdiction has been expanded.
¶7 All statutory ambiguities are generally
construed in favor of Indian sovereignty.5 Evidence of what the compacting parties truly
intended can also be found by considering the
compact as a whole.6 The Court neglects to
consider that in addition to tort claims, the
same provisions apply for prize claim disputes.
Immunity is waived for prize claim disputes
and procedures are set forth much like tort
claims. Did the federal government (through
IGRA) and the State of Oklahoma and Oklahoma Indian Tribes (through compacting)
intend that if a patron enters onto tribal land,
voluntarily engages in tribal gaming activities,
disputes a prize claim (or lack thereof), that the
plaintiff could readily choose between three
forums as the concurring opinion suggests?
¶5 The majority opinion acknowledges that
the question of whether exclusive jurisdiction
over torts arising on tribal land was vested in
tribal courts at the time the compact was exe-
¶8 While this may one day be the law —
depending on what the United States Supreme
Court ultimately decides — it is not now, nor
has the concurring opinion provided any sup-
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Vol. 80 — No. 18 — 7/11/2009
port in its assertions to show that it is. The
majority’s analysis is bottomed on the traditional right of a plaintiff in a civil lawsuit to
choose the venue of the lawsuit. Again I ask,
why would Congress have included a provision in IGRA allowing Tribes and States to
negotiate an allocation of jurisdiction to the
states if state courts, federal courts, and tribal
courts already had such jurisdiction? If this
were true, the jurisdiction provisions of IGRA
are meaningless.
¶9 I am also puzzled by the majority’s use of
the “voter-approved” compact by citing the
ballot title in its attempt to bolster the argument that the compact is no ordinary contract
and that the voters somehow approved one
court’s jurisdiction over another. The verbatim
recitation of the ballot title clearly shows the
voters neither implicitly nor expressly knowingly voted concerning the jurisdiction of tort
claims. At 2004 Okla. Sess. Laws, ch. 316, it
provides:
This measure creates the State-Tribal Gaming Act. It would allow some types of gaming machines at some horse race tracks in
this state. The Oklahoma Horse Racing
Commission would oversee the new types
of gaming machines. It would require that
a portion of the money wagered on such
gaming be paid to the state. Some of the
money would go to purses for horse races.
Some of the money would go to the horse
race tracks. The measure also provides a
model compact which Indian tribes may
enter into and then operate such gaming
machines on Indian lands. The model compact provides regulatory controls for gaming authorized by the compact. The Office
of State Finance would have the authority
to oversee this gaming by the tribes. The
state’s portion of the money from the gaming authorized by this act would go for
treatment of compulsive gambling disorders, to the Education Reform Revolving
Fund and for college scholarships.
Clearly, the voters were asked to decide whether
to allow gaming at race tracks and gaming on
Indian land. There is nothing in this measure
notifying the voter of anything at all regarding
tort claims, much less which court would have
jurisdiction of such claims. Consequently, the
premise of both the majority opinion and the
concurring opinion that “court of competent
jurisdiction” is voter-sanctioned to be the state
courts over the tribal court is inexplicable.
Vol. 80 — No. 18 — 7/11/2009
¶10 The majority opinion surmises that the
state, by virtue of IGRA and the language of
the compact, acquires concurrent jurisdiction
claims against Indian Tribes which have a
Gaming Compact with the state. To reach this
conclusion, the majority must assume, without
deciding, that courts of the State of Oklahoma
are generally courts of competent jurisdiction
to adjudicate tort claims against Indian tribes
for tribal activity on tribal land. It intimates
that this jurisdiction is established by the
authority of the Oklahoma constitution and
that no federal law or state statute may alter
it.
¶11 The fallacy of this reasoning is exemplified by the Federal Indian Child Welfare Act
(FICWA). Under certain circumstances Oklahoma lacks any authority over an Indian child.7
For instance, if the child lives on trust or
restricted land, or in a dependent Indian community, the state may not have the authority to
proceed and the case must be heard in tribal
court. In other cases, jurisdiction with the state
is concurrent, but the state, in the absence of
good cause, must transfer the proceeding to
the tribal court.8 The FICWA, as does IGRA,
illustrates that Congress can and does decide
whether the State of Oklahoma may assert civil
jurisdiction over Indian tribes, notwithstanding the assertion that “adjudicatory jurisdiction is constitutionally vested in our state
courts.”
CONCLUSION
¶12 The United States Constitution recognizes that Indian Tribes are to be treated on an
equal level with the governments of foreign
nations as well as the states.9 The Oklahoma
Constitution recognizes that all tribal lands
lying within Oklahoma boundaries shall be
subject to the jurisdiction of the United States.10
IGRA embodies the general goal of federal
Indian policy: to allow tribal self-government
with federal control.11 It requires states and
tribes to negotiate regarding the scope of authorized gaming and the State’s role in Indian
gaming. As part of this process, IGRA allows
states and tribes to negotiate and to include
jurisdiction-shifting provisions in the compact.12 Had Congress not considered tribal
courts to have subject matter jurisdiction over
lawsuits which relate to or arise out of gaming
and gaming enterprises, why would it have
included a provision in IGRA which allowed
tribes and states to negotiate an allocation of
jurisdiction to the states?
1467
¶13 This whole discussion may become moot.
The compact became effective February 9,
2005, and it does not expire until 2020. At that
time it automatically renews for successive 15
year periods. However, the compact also provides that it may be terminated by mutual
consent. If the Tribe and the State are truly in
accord with what was their mutual intent at
the time of compacting, they may terminate
and renegotiate the compact insofar as “a court
of competent jurisdiction” is concerned.13
1. A copy of the order is attached to this writing.
2. Although it was again ignored by the Court, the Governor of
Oklahoma and the State Treasurer attached as exhibits to their Amicus
Curiae brief filed on March 9, 2009, in Cossey v. Cherokee Nation
Enterprises, LLC., 2009 OK 6, ___ P.3d ___ copies of sworn affidavits
which indicate that they negotiated and signed the compact with the
intent that the phrase “a court of competent jurisdiction” was not a
provision intended to extend the jurisdiction of State courts. Rather, it
was intended to preserve preexisting Tribal court jurisdiction over
claims arising in Indian country against Indian Tribes.
3. Public law 83-280 (commonly referred to as Public Law 280 or PL
280) was a transfer of legal authority (jurisdiction) from the federal
government to state governments. Some states, including California,
were given extensive criminal and civil jurisdiction over tribal lands
within the affected states whereas Oklahoma was not given, nor did it
assume, equivalent authority to apply or enforce its state civil or
criminal laws in Indian country.
4. For example, in Hatcher v. Harrah’s NC Casino Company, LLC.,
169 N.C.App. 151, 610 S.E.2d 210 (2005), the North Carolina Court of
Appeals addressed whether the state courts had subject matter jurisdiction to resolve a dispute between a casino patron who alleged that
he won a jackpot and the casino’s management company. The compact
between the Tribe and the State granted regulatory, criminal jurisdiction to the State, but it did not expressly grant civil jurisdiction to the
State with respect to the parties’ dispute. The court concluded that the
exercise of state court jurisdiction in the action would unduly infringe
on the self-governance of the tribe. See also, Bonnette v. Tunica-Biloxi
Indians, 873 So.2d 1 (La. Ct. App. 2003) which recognized that the Tribe
retained jurisdiction of tort claims of patrons of casinos in a compact
which provided that the “full territorial and subject matter jurisdiction” of the Tribe was preserved and that the Tribe would adopt procedures for disposition of tort claims. This conclusion was reached
despite the compact also containing a provision which stated that the
State and the Tribe had concurrent jurisdiction to fully “ensure the
protection of the public,” the Tribe and the State. A New Mexico case,
Gallegos v. Pueblo of Tesuque, 132 N.M. 207, 46 P.3d 668 (2002), dealt
with the subject matter jurisdiction of state courts over a tort claim
brought by a non-Indian against an Indian Tribe for injuries suffered at
the tribe’s gaming facility. At the time of the alleged tort, there was no
valid gaming compact in force. The Court held that trial courts of New
Mexico lacked jurisdiction in the matter absent a valid agreement
between the tribe and the state permitting the state court to hear the
matter. A subsequent case, Doe v. Santa Clara Pueblo, 141 N.M. 269,
154 P.3d 644, 646-647 (2007) was heard after a valid gaming compact
was executed between the Tribe and the State. The compact contained
specific language concerning tort claims and jurisdiction The Court
held both that the compact created a concurrent State-Tribal jurisdiction for personal injury tort claims, by agreement of the parties, and
that IGRA permitted such a negotiation and outcome. Diepenbrock v.
Merkel, 33 Kan. ApP.2d 97, 103, 97 P.3d 1063 (Ct. App. 2004) considers
subject matter jurisdiction for a wrongful death action. The deceased
died of a heart attack suffered on tribal land owned in fee by the tribe.
The tribal gaming compact gives the tribe civil jurisdiction for tort matters relating to Class III gaming on their reservation. The Court spoke
to the linchpin of the matter, at p. 1067, recognizing that “[i[t would
undermine the authority of the tribal courts over reservation affairs
and hence would infringe on the right of the Prairie Band Potawatomi
Nation to govern themselves if jurisdiction did not reside in the tribal
courts in this case. . . .” In Kizis v. Morse Diesel International, 260
Conn. 46, 794 A.2d 498 (2002) the Connecticut Supreme Court
addressed the issue of jurisdiction in a case involving a patron of a
tribal casino who brought a negligence action against the Tribe’s
employees seeking damages for personal injuries sustained at the
casino. The Court held that subject matter jurisdiction was lacking in
1468
state court and that the proper forum was the Mohegan Gaming Disputes Court. This result was reached after the Court considered the
express language of the compact, the fact that the tribal constitution
provided a forum and mechanism to redress the patron’s injuries and
IGRA permitted such a result. In Gaming Corporation of America v.
Dorsey & Whitney, 88 F.3d 536 (8th Cir. 1996), a case from the 8th Circuit Court of Appeals involving a lawsuit between a tribal casino
management company and a law firm representing the Ho-Chunk
Nation. Although the lawsuit was not a tort claim from a casino
patron, the Court’s discussion of IGRA is illuminating in that it noted
that “[T]he legislative history indicates that Congress did not intend to
transfer any jurisdictional or regulatory power to the states by means
of IGRA unless a tribe consented to such a transfer in a tribal-state
compact.” The Court also recognized that “ Tribal-State compacts are
at the core of the scheme Congress developed to balance the interests
of the federal government, the states, and the tribes. They are a creation of federal law, and IGRA prescribes ‘the permissible scope of a
Tribal-State compact.’”
5. Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, 1999 F.3d 1123, 1125 (10th Cir. 1999), cert denied 529 U.S. 1134
(2000).
6. As the majority notes, the compact is a state statute. The primary
goal of statutory interpretation is to ascertain and follow the intent of
the Legislature. King v. King, 2005 OK 4, ¶ 22, 107 P.3d 570; TRW/Reda
Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15; Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm’n, 1988 OK 117, ¶
7, 764 P.2d 172; Hess v. Excise Bd. of McCurtain County, 1985 OK 28, ¶
6, 698 P.2d 930. Where a statute’s meaning is ambiguous or unclear, we
employ rules of statutory construction to give the statute a reasonable
construction that will avoid absurd consequences. Dean v. Multiple
Injury Trust Fund, 2006 OK 78, ¶ 9, 145 P.3d 1097; Head v. McCracken,
2004 OK 84, ¶ 16, 102 P.3d 670; TRW/Reda Pump v. Brewington, supra.
It is important in construing the Legislative intent behind a word to
consider the whole act in light of its general purpose and objective,
considering relevant portions together to give full force and effect to
each. Saul v. Alcorn, 2007 OK 90, ¶ 19 fn. 31, 176 P.3d 346; King v. King,
supra; Simpson v. Oklahoma Alcoholic Beverage Control Bd., 1965 OK
206, ¶ 18, 409 P.2d 364; Oklahoma Natural Gas Co. v. Corporation
Comm’n of Okla., 1923 OK 400, ¶ 0, 216 P. 917. A statute will be given
a construction, if possible, which renders every word operative, rather
than one which makes some words idle and meaningless. State ex rel.
Thompson v. Ekberg, 1980 OK 91, ¶ 7, 613 P.2d 466; Integrity Mut. Cas.
Co. v. Garrett, 1924 OK 721, ¶ 11, 229 P. 282; Matthews v. Rucker, 1918
OK 29, ¶ 5, 170 P. 492.
We presume that the Legislature expressed its intent and intended
what it expressed, and statutes are interpreted to attain that purpose
and end, championing the broad public policy purposes underlying
them. McClure v. ConocoPhillips, Co, 2006 OK 42, ¶12, 142 P.3d 390;
King v. King, supra; Cox v. State ex rel. Okla. Dept. of Human Services,
2004 OK 17, ¶ 19, 87 P.3d 607.
7. 25 U.S.C.A. §§1901 et seq.
8. 25 U.S.A. §1911 (1978) provides:
(a) Exclusive jurisdiction
An Indian tribe shall have jurisdiction exclusive as to any State
over any child custody proceeding involving an Indian child
who resides or is domiciled within the reservation of such tribe,
except where such jurisdiction is otherwise vested in the State by
existing Federal law. Where an Indian child is a ward of a tribal
court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
(b) Transfer of proceedings; declination by tribal court
termination of parental rights to, an Indian child not domiciled
or residing within the reservation of the Indian child’s tribe, the
court, in the absence of good cause to the contrary, shall transfer
such proceeding to the jurisdiction of the tribe, absent objection
by either parent, upon the petition of either parent or the Indian
custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such
tribe.
(c) State court proceedings; intervention
termination of parental rights to, an Indian child, the Indian
custodian of the child and the Indian child’s tribe shall have a
right to intervene at any point in the proceeding.
(d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes
The United States, every State, every territory or possession of the
United States, and every Indian tribe shall give full faith and
credit to the public acts, records, and judicial proceedings of any
Indian tribe applicable to Indian child custody proceedings to the
Vol. 80 — No. 18 — 7/11/2009
same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.
9. Art. 1, §8 of the United States Constitution provides that “[t]he
Congress shall have the power to . . .regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.”
10. Art. 1, §3 of the Oklahoma Constitution provides in pertinent
part:
The people inhabiting the State do agree and declare that they
forever disclaim all right and title in or to any unappropriated public
lands lying within the boundaries thereof, and to all lands lying within
said limits owned or held by any Indian, tribe, or nation; and that until
the title to any such public land shall have been extinguished by the
United States, the same shall be and remain subject to the jurisdiction,
disposal, and control of the United States. . . .
11. Title 25 U.S.C. §2701 provides:
The Congress finds that —
(1) numerous Indian tribes have become engaged in or have
licensed gaming activities on Indian lands as a means of generating tribal governmental revenue;
(2) Federal courts have held that section 81 of this title requires
Secretarial review of management contracts dealing with Indian
gaming, but does not provide standards for approval of such
contracts;
(3) existing Federal law does not provide clear standards or regulations for the conduct of gaming on Indian lands;
(4) a principal goal of Federal Indian policy is to promote tribal
economic development, tribal self-sufficiency, and strong tribal
government; and
(5) Indian tribes have the exclusive right to regulate gaming
activity on Indian lands if the gaming activity is not specifically
prohibited by Federal law and is conducted within a State which
does not, as a matter of criminal law and public policy, prohibit
such gaming activity.
Title 25 U.S.C. §2702 provides:
The purpose of this chapter is —
(1) to provide a statutory basis for the operation of gaming by
Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments;
(2) to provide a statutory basis for the regulation of gaming by an
Indian tribe adequate to shield it from organized crime and other
corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that
gaming is conducted fairly and honestly by both the operator
and players; and
(3) to declare that the establishment of independent Federal
regulatory authority for gaming on Indian lands, the establishment of Federal standards for gaming on Indian lands, and the
establishment of a National Indian Gaming Commission are
necessary to meet congressional concerns regarding gaming and
to protect such gaming as a means of generating tribal revenue.
12. Title 25 U.S.C. §2710(d)(3)(C) provides:
(C) Any Tribal-State compact negotiated under subparagraph (A) may include provisions relating to —
(i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to,
and necessary for, the licensing and regulation of such activity;
(ii) the allocation of criminal and civil jurisdiction between
the State and the Indian tribe necessary for the enforcement of
such laws and regulations;
13. Part 15 of the Compact relates to duration and negotiation and
it provides in pertinent part:
. . .B. This Compact shall have a term which will expire on January 1, 2020, and at that time, if organization licensees or others
are authorized to conduct electronic gaming in any form other
than pari-mutual wagering on live horse racing pursuant to any
governmental action of the state or court order following the
effective date of this Compact, the Compact shall automatically
renew for successive additional fifteen-year terms; provided
that, within one hundred eighty (180) days of the expiration of
this Compact or any renewal thereof, either the tribe or the state,
acting through its Governor, may request to renegotiate the
terms of subsections A and E of Part 11 of this Compact.
C. This Compact shall remain in full force and effect until the
sooner of expiration of the term or until the Compact is terminated by mutual consent of the parties.. . .
The state hereby agrees that this subsection is severable from this
Compact and shall automatically be severed from this Compact
in the event that the United Stated Department of the Interior
determines that these provisions exceed the state’s authority
under IGRA.
Vol. 80 — No. 18 — 7/11/2009
ORDER
The Oklahoma State Treasurer’s application
for leave to file an attached statement, filed on
May 15, 2008, is DENIED, and the statement is
STRICKEN.
Done by order of the Supreme Court this
27th day of May, 2008.
/s/ James R. Winchester
CHIEF JUSTICE
REIF, J., with whom EDMONDSON, C.J.,
joins, dissenting.
¶1 I respectfully dissent.
¶2 The case at hand involves the same jurisdictional issue as the case of Cossey v. Cherokee
Nation Enterprises, LLC, 2009 OK 6, ___P.3d___;
that is, whether the courts of the State of Oklahoma have jurisdiction of tort claims against
an Indian tribe that arise from tribal gaming
operations on tribal lands. This controversy
stems from the fact that the Gaming Compacts
between the State and Indian tribes do not specifically state that State courts have jurisdiction
over such claims. The majority opinion in
Cossey and the majority opinion herein interpret the tribe’s “consent to suit in a court of
competent jurisdiction” set forth in the Compacts as conferring jurisdiction on State courts.
In Cossey, I dissented from the majority holding
that this language gives State courts jurisdiction over gaming-related tort claims against
the Cherokee Nation. The same analysis and
authority set forth in my dissent in Cossey lead
me to likewise dissent from the majority holding herein that this language gives State courts
jurisdiction over such tort claims against the
Choctaw Nation.
¶3 Under the majority interpretations, Oklahoma courts acquire concurrent jurisdiction
claims against Indian tribes that have a Gaming Compact with the State. The majority
herein reasons that if tribal courts were intended to be the only courts of competent jurisdiction to adjudicate tort claims against the tribes,
then the tribes would have expressly limited
their consent to suit “in tribal court only.” The
majority cites examples from other compacts
where similar limiting language appears and
emphasizes that it would have been a simple
matter for the tribes to type such a limitation
into their respective Compacts.
1469
¶4 My disagreement with the majority on
this point stems from the fact that the courts of
the State of Oklahoma are not generally courts
of competent jurisdiction to adjudicate tort
claims against Indian tribes for tribal activity
on tribal lands. The majority opinions in both
Cossey and the case at hand acknowledge that
the State of Oklahoma did not assume jurisdiction over tribal lands pursuant to Public Law
280. While state courts can acquire jurisdiction
over tribes incidental to a Congressional delegation of power to the State to regulate tribal
activity, the Federal Indian Gaming Act does
not involve a Congressional delegation of
power to the State of Oklahoma. Finally, when
the State of Oklahoma wants a tribe to submit
to the jurisdiction of a state court under a compact, the State of Oklahoma has explicitly said
so. See 68 O.S.2001 § 500.63(C)(8).
¶5 In my opinion, the key to this controversy
lies in the sovereign to sovereign status quo
that exists between the State of Oklahoma and
Indian tribe at the time they enter into any type
of compact. This status quo is best described in
the Motor Fuel Compact Act: “Both the State of
Oklahoma and the accepting Indian tribe recognize, respect and accept the fact that under
applicable laws each is a sovereign with dominion over their respective territories and governments.” 68 O.S.2001 § 500.63(C)(10).
¶6 In the Federal Indian Gaming Act, Congress expressly authorized the State and Indian
tribes to change their sovereignty status quo
with respect to (1) the application of the criminal and civil laws and regulations of the Indian
tribe or the State and (2) the allocation of criminal and civil jurisdiction between the State
and Indian tribe. 25 U.S.C. § 2710(d)(3)(C)(i)
and (ii). However, the Gaming Compact
between the State of Oklahoma and the Choctaw Nation does not expressly provide for the
application of the civil laws of the State of
Oklahoma to tribal lands nor does it expressly
allocate civil jurisdiction to the courts of the
State of Oklahoma. Instead, the Compact plainly states: “This Compact shall not alter tribal,
federal or state civil adjudicatory or criminal
jurisdiction.”
¶7 In other words, the Compact does not
alter the sovereignty status quo as to courts
that possess competent jurisdiction to adjudicate a claim against the tribe for tribal activity
on tribal land. In view of this fact, use of the
modifying term “competent jurisdiction” to
describe the court in which the tribe consents
1470
to suit, clearly refers to courts which have jurisdiction to adjudicate claims against the tribe in
the absence of the compact. In this context, the
modifying term “competent jurisdiction” is
just as effective to limit jurisdiction to tribal
courts as saying “in tribal courts only.”
¶8 Even though I dissent from the holdings
of the majority opinions, I readily agree with
the views expressed in the opinions that one of
the key purposes of the Gaming Compacts is to
hold tribes liable for personal injury and property loss sustained by patrons and attributable
to tribal gaming operations. To achieve this
end, the State sought and received (1) the
tribe’s waiver of sovereign immunity and a
claims process to pursue tribal liability comparable to that found in Oklahoma’s Governmental Tort Claims Act, (2) the tribe’s consent to
suit on disputed claims in a court competent to
determine tribal liability, and (3) the tribe’s
assurance that patrons would be afforded due
process in seeking and receiving just and reasonable compensation for a tort claim for personal injury or property damage. Nowhere in
the Compacts at issue, however, did the State
and tribes expressly agree that Oklahoma law
would apply in this process or that State courts
were empowered to determine tribal liability.
Perhaps my chief disagreement with the majority opinions in Cossey and the case at hand lies
in the fact that they extend state law and state
civil adjudicatory jurisdiction to tribal lands
and tribal governments by implication when
the parties did not expressly agree to do so in
the face of express authority in the Federal
Indian Gaming Act on this subject.
¶9 In my opinion, the only provision in the
Compact that implicates the exercise of jurisdiction over a tort claim by a court other than a
tribal court is the “due process” provision. In
this provision, tribes agree to “ensure that
patrons of a facility are afforded due process in
seeking and receiving just and reasonable compensation for a tort claim for personal injury
and property damage.” Congress has generally
mandated that no Indian tribe in exercising
powers of self-government shall deprive any
person of liberty or property without due process of law. 25 U.S.C. § 1302. This includes
exercise of the tribe’s judicial power. 25 U.S.C.
§ 1301(2). If a tribal court did not afford a tort
claimant due process, or the tribe did not provide a court to determine its liability, such
denials of due process would present a federal
Vol. 80 — No. 18 — 7/11/2009
question to support adjudication of a claim in
federal court.
¶10 For the foregoing reasons I would affirm
the district court’s dismissal of the plaintiff’s
district court suit against the Choctaw Casino
of Pocola and the Choctaw Nation.
2009 OK 56
BRIAN LEE WILSON, Plaintiff/Appellant, v.
CARL DANIEL WEBB and BRENT STAPP,
Defendants/Appellees.
No. 105,874. July 7, 2009
CERTIORARI TO THE COURT OF CIVIL
APPEALS, DIVISION I
Honorable G. Brent Russell, Trial Judge
�¶0 On April 17, 2003, Brian Wilson brought
an action against Carl Webb and Brent Stapp,
alleging the conversion of Wilson’s race car
parts and accessories. The trial court granted
summary judgment to the defendants on February 4, 2008. Wilson dismissed his counsel
and moved pro se for a new trial. The trial court
denied the motion and also awarded attorney
fees and costs to Webb. Wilson appealed. The
Court of Civil Appeals affirmed in part and
dismissed in part, finding that there was nothing in the record to document that the appellant had taken any action to discharge his
counsel, and thus, his motion for new trial was
void for the lack of his counsel’s signature.
Wilson petitioned for certiorari. On certiorari,
we hold that Wilson’s motion for new trial was
effective because he filed a document of record
establishing that he had dismissed his counsel
before filing the motion. We remand to the
Court of Civil Appeals for consideration of the
issues raised in the appeal.
VACATED; CAUSE REMANDED TO THE
COURT OF CIVIL APPEALS WITH
INSTRUCTIONS.
Brian Lee Wilson, Oklahoma City, Oklahoma,
Pro se.
Jeffrey K. Archer, Duncan, Oklahoma, for
Defendant/Appellee Webb,
Charles L. Barnes, Duncan, Oklahoma, for
Defendant/Appellee Stapp.
KAUGER, J.:
Vol. 80 — No. 18 — 7/11/2009
�¶1 The issue presented is whether the appellant’s motion for new trial was ineffective
because it was filed without the signature of
his counsel. We hold that because he filed a
document of record establishing that he had
dismissed his counsel before filing the motion,
the motion for new trial was not ineffective. We
remand the cause to the Court of Civil Appeals
for consideration of the issues raised on
appeal.
�¶2 On April 17, 2003, Brian Wilson (appellant), a prisoner acting pro se, brought a conversion action against his father-in-law, Carl Webb
(Webb), and Brent Stapp (Stapp) (collectively,
defendants). The appellant was incarcerated at
all times pertinent to this cause. The appellant
alleged that Webb sold the appellant’s race car
parts and accessories to Stapp without authorization. It is unclear from the record exactly
when the sale occurred, but in his petition, the
appellant stated that he learned of the sale on
November 21, 2001. On May 21, 2003, also acting pro se, Webb filed an answer stating that the
disputed property was the marital property of
the appellant and Carla Wilson, Webb’s daughter and the appellant’s wife. Webb claimed that
he facilitated the sale at Carla Wilson’s request,
in order to satisfy a portion of the Wilsons’
marital debt.1 Stapp did not initially file an
answer. On August 13, 2003, the appellant
moved for default judgment against Stapp,
and the trial court denied the motion on September 3, 2003.
�¶3 On April 20, 2004, the appellant moved
for summary judgment against Webb and
Stapp. The trial court granted the motion on
May 26, 2004, and awarded the appellant
$19,345.98. Webb then retained counsel and
moved to vacate the summary judgment. The
trial court granted the motion to vacate on September 9, 2004. The appellant and Webb each
moved for summary judgment, and the appellant again moved for default judgment against
Stapp. The trial court denied the motion for
default judgment on September 16, 2005, and
denied both motions for summary judgment
on September 30, 2005. On October 6, 2005,
Stapp retained counsel and filed an answer. On
September 18, 2006, the appellant hired Clinton Russell (Russell/counsel) as his attorney.
�¶4 The trial court issued its pretrial order on
March 27, 2007, and the matter was continued
several times. On November 9, 2007, Webb
filed his Application for Leave to File Dispositive Motion Out of Time, and the trial court
1471
granted the motion. On November 15, 2007,
Webb filed a motion for summary judgment, to
which he attached a letter sent by the appellant,
addressed to Stapp, and dated September 8,
2000. In the letter, the appellant referenced the
sale of the race car parts and accessories and
demanded $22,750.2 Webb argued that the letter
demonstrated that the appellant had knowledge
of the sale on September 8, 2000, rather than
November 21, 2001, as he stated in his petition,
and therefore the petition was filed beyond the
two year statute of limitations for conversion
claims found at 12 O.S. Supp. 2008 § 95(A)(3).3
Webb also moved for an award of attorney fees
and costs under 57 O.S. Supp. 2002 § 566(C),4
arguing that the appellant’s suit was frivolous
and malicious.
�¶5 After requesting additional time, the
appellant, through his counsel, filed a response
to the motion on January 7, 2008. In it, he
argued that no statute of limitations defense
was listed in the defendants’ pleadings, the
limitations period should be tolled, the limitations defense was barred by the doctrine of
laches, and his action was not frivolous and
malicious. On February 4, 2008, the trial court
granted Webb’s motion for summary judgment
and dismissed the cause with prejudice, holding that: 1) the defendants’ pleadings did not
raise a limitations defense; 2) the defense of
limitations was set out in the Pretrial Order; 3)
the Pretrial Order superseded the pleadings
and governed the trial of the case;5 and 4) the
appellant brought his conversion action after
the two year limitations period had run.
�¶6 On February 5, 2008, the appellant discharged Russell and filed a notice of change of
address which provided:
I, Brian Lee Wilson, the plaintiff herein do
hereby advise the Clerk of the District
Court of Stephens County, of the change in
my mailing address. ALL future notices,
rulings or pleadings shall be mailed to me
at the below address.
Brian Lee Wilson
Federal Transfer Center 7-F
P.O. Box 898801
Oklahoma City, OK 73189
Russell did not draft or sign any pleadings
filed in this matter after that date. On February
11, 2008, the appellant, acting without any
association with his counsel, filed a motion to
reconsider and vacate the grant of summary
judgment. On February 13, 2008, Webb filed a
1472
motion to assess attorney fees and costs. The
trial court granted Webb’s motion for attorney
fees and costs on April 22, 2008. The trial court
construed the appellant’s motion to reconsider
as a motion for new trial,6 and denied the
motion on April 30, 2008.
�¶7 The appellant filed his petition in error
on May 20, 2008, and we assigned the cause to
the Court of Civil Appeals on August 21, 2008.
The Court of Civil Appeals issued its opinion
affirming the trial court on October 16, 2008. Its
sole finding was that “(t)here is nothing in the
record to document Wilson had taken any
action to discharge Russell,” and as such, the
appellant’s motion for new trial, filed without
Russell’s signature, was “utterly ineffective”
according to the teaching of Watson v. Gibson
Capital, L.L.C., 2008 OK 56, 187 P.3d 735.7 As
the dual representation argument had not been
made by either defendant, the Court of Civil
Appeals raised the issue sua sponte.
�¶8 On November 18, 2008, the appellant
petitioned the Court of Civil Appeals for
rehearing and attached to his petition an affidavit signed by Russell averring that he was
dismissed by the appellant on February 4,
2008. The appellant also attached to his petition:
1) A February 5, 2008, letter from Russell
acknowledging his termination.
2) The docket sheet that denotes the change
of address notice filed on February 5,
2008.
3) A notarized affidavit from the appellant’s mother averring that she hand
delivered the letter of dismissal to Russell on January 31, 2008, and hand delivered the notice of change of address to
the Stephens County Clerk and all counsel of record on February 1.
4) A January 29, 2008, letter of termination
from the appellant to Russell, effective
February 1, 2008.
5) A January 29, 2008, letter notifying
opposing counsel of the appellant’s termination of his counsel, effective February 1, 2008.
The Court of Civil Appeals denied rehearing
on December 5, 2008. The appellant then filed
his petition for certiorari on December 18, 2008.
We granted certiorari on February 24, 2009.
Vol. 80 — No. 18 — 7/11/2009
�9 Watson v. Gibson Capital, L.L.C., provides
at � 8:
The client who wants to take over a lawsuit
from the lawyer must first (a) discharge the
counsel of record by a document on file in
court and then (b) proceed independently
(pro se) as an unrepresented party. But
while the lawyer continues to hold the status as counsel of record, it is the lawyer
alone who holds the position of magister
litis — the master of the client’s litigation.8
The Oklahoma Pleading Code, 12 O.S. 2001
2001 et seq. was adopted in 1984 to replace form
pleading requirements.9 The general philosophy of the Pleading Code is that pleadings
should give fair notice of the claim and be subject to liberal amendment, should be liberally
construed so as to do substantial justice, and
that decisions should be made on the merits
rather than on technical niceties.10 The Pleading
Code rejects the approach that pleading is a
game of skill in which one misstep is decisive
to the outcome, but instead accepts the principle that the purpose of pleading is to facilitate
a proper decision on the merits.11
�¶10 There is no question that the appellant
discharged Russell before filing his motion for
new trial, and neither defendant argued that he
lacked notice of the appellant’s dismissal of
Russell. Watson requires that a litigant file a
document evidencing the discharge of counsel.
Because it found that there was “nothing in the
record” to evince the dismissal when it raised
the dual representation issue sua sponte, the
Court of Civil Appeals apparently did not consider whether the appellant’s notice of change
of address met this requirement. We hold that,
in this cause, the notice of change of address
met the Watson requirement of a document of
record evidencing the discharge of counsel. As
such, we hold that the appellant’s motion for
new trial and other post-judgment pleadings
are not rendered “utterly ineffective” because
they were filed without Russell’s signature.12
�¶11 Because it dismissed the matter on the
dual representation issue, the Court of Civil
Appeals declined to review the issues presented to it in this appeal. We have not reviewed
the issues raised in the appellant’s appeal, and
so we remand to the Court of Civil Appeals
with instructions to review those issues.13 With
respect to the issues raised by the appellant in
his appeal, we express no opinion and leave
them for the Court of Civil Appeals.
Vol. 80 — No. 18 — 7/11/2009
VACATED; CAUSE REMANDED TO
THE COURT OF CIVIL APPEALS
WITH INSTRUCTIONS.
Edmondson, C.J., Taylor, V.C.J., Opala, Kauger,
Winchester, Colbert, and Reif, J.J., concur.
Hargrave, and Watt, J.J., dissent.
1. Brian Wilson and Carla Wilson were divorced on October 5,
2004, about a year and a half after the appellant brought the instant
action against Webb and Stapp. Amended Decree of Divorce and Dissolution of Marriage of Brian Lee Wilson and Carla Beatrice Wilson,
October 5, 2004, Record, pp. 142-148.
2. Demand Letter from Appellant to Stapp, September 8, 2000,
Record, p. 421. Webb attached an affidavit to his motion for summary
judgment stating that he had received a copy of this letter. Record,
p. 424.
3. Title 12 O.S. Supp. 2008 § 95(A)(3), provides in pertinent part:
A. Civil actions other than for the recovery of real property can
only be brought within the following periods . . .
...
3. Within two (2) years: . . . an action for taking, detaining, or
injuring personal property. . . .
While 12 O.S. � 95 has been amended since 2003, the pertinent language
has remained the same, therefore, the current version of the statute is
referenced.
4. Title 57 O.S. Supp. 2002 § 566(C)(1-2) provides in pertinent part:
If the court determines from the pleadings or the evidence that
one or more of the causes of action are frivolous or malicious,
any one or more of the following sanctions may be imposed . . .
1. Award attorney fees and actual costs . . .
2. Court costs not to exceed Five Hundred Dollars ($500.00) per
cause of action;
5. Rule 5(I), Rules for the District Courts of Okla., 12 O.S. 2001,
Ch. 2, App., provides in pertinent part:
. . . The contents of the pretrial order shall supersede the pleadings and govern the trial of the case unless departure therefrom
is permitted by the Court to prevent manifest injustice. . . .
6. The meaning and effect of an instrument filed in court depends
on its contents and substance rather than on the form or title given it
by the author. Whitehorse v. Johnson, 2007 OK 11, ¶8 fn. 13, 156 P.3d
41; Neumann v. Arrowsmith, 2007 OK 10, ¶8, 164 P.3d 116.
7. Watson v. Gibson Capital, L.L.C., 2008 OK 56, ¶9, 187 P.3d 735,
provides in pertinent part:
A client-filed paper, to be effective, must either bear the lawyer’s
signature or be preceded by the filing in the case of a document
that discharges the lawyer and gives him (or her) notice of the
employment’s termination . . . (Otherwise the paper is) facially
flawed and hence utterly ineffective.
8. See In re Wallace Revocable Trust, 2009 OK 16, � 27, 204 P.3d 80
(litigant not entitled to hybrid representation).
9. Okl.Sess.L.1984, Ch. 164, §§ 1 et seq., eff. Nov. 1, 1984.
10. Pan v. Bane, 2006 OK 57, ¶8, 141 P.3d 555; Watford v. West, 2003
OK 84, ¶10, 78 P.3d 946; Niemeyer v. United States Fidelity & Guar.
Co., 1990 OK 32, ¶5, 789 P.2d 1318. Title 12 O.S. 2001 §2008(F) provides:
“All pleadings shall be so construed as to do substantial justice.”
11. Pan v. Bane, see note 10, supra; Foman v. Davis, 371 U.S. 178,
181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962).
12. The dissent would have us either overrule Watson v. Gibson
Capital, L.L.C., see note 7, supra, or affirm the trial court, rather than
consider any of the materials attached to the appellant’s petition for
rehearing in the Court of Civil Appeals. We hold that the appellant’s
notice of change of address satisfies the Watson requirement of a document discharging counsel that is filed of record. The notice was filed in
district court before the appellant’s motion for new trial. Because the
document substantially complies with the Watson requirement, there
is no need to revisit or overrule Watson. We reference the affidavits
establishing Wilson’s discharge of his counsel (including the attorney’s
own affidavit) because the dual representation argument was not
raised by either defendant, but was instead raised sua sponte by the
Court of Civil Appeals as the sole basis for its decision. The rationale
behind Watson is that if a represented party decides to discharge his
counsel and proceed pro se, the court and other parties to the action
must be notified. By attaching the affidavits to his petition for rehear-
1473
ing, the appellant attempted to show that neither the trial court nor the
defendants claimed to lack notice that he had discharged his counsel.
The dissent would content itself with the defeat of the appellant’s
claim on procedural grounds not raised by either defendant and further, would prevent him from answering the dual representation issue
because it was raised, for the first time, sua sponte on appeal. In essence,
the appellant’s claim would fail on appeal because he did not address
the dual representation issue at trial, but he could not offer a response
on appeal because the issue was not raised at trial. To subject him to
such a Catch-22 would be to disregard the basic principle that notice
pleading is a means to facilitate a decision on the merits of a claim. See
notes 10-11, supra.
13. If Court of Civil Appeals does not decide all properly preserved
and briefed issues, Supreme Court may, if it vacates opinion, address
undecided matters or remand to the Court of Civil Appeals. See Lerma
v. Wal-Mart Stores, Inc., 2006 OK 84, ¶5 fn. 2, 148 P.3d 880; Hough v.
Leonard, 1993 OK 112, ¶1, 867 P.2d 438.
APPEALS VACATED; JUDGMENT
AFFIRMED.
James Michael Love, Sloane Ryan Rojas, TITUS
HILLIS REYNOLDS LOVE DICKMAN &
McCALMON, P.C., Tulsa, Oklahoma, for
Appellant.
Michael James King, M. Jean Holmes, S. Gregory Pittman, WINTERS, KING & ASSOCIATES, INC., Tulsa, Oklahoma, for Appellees.
WATT, J. dissenting by reason of stare decisis:1
HARGRAVE, J.
�¶1 The majority reaches its result by relying
on materials attached to the petition for rehearing filed in the Court of Civil Appeals. Neither
this Court nor the Court of Civil Appeals may
consider as part of an appellate record any
instrument or material which has not been
incorporated into the assembled record by a
certificate of the court clerk.2 Therefore, I cannot concur in the majority opinion.
�¶1 Appellant, Victor Carbajal appealed from
the trial court’s order dismissing his action
under the Residential Property Condition Disclosure Act, 60 O.S. 2001 §831 et seq., against
Appellees Baham Safary, an Oklahoma real
estate licensee, and Prestigious Properties, Inc.,
a company solely owned by Safary. Safary was
retained by Carbajal to assist with the purchase
of a home from Dennis and Yvonne Hobus.
Carbajal made an offer to purchase the home
for $86,000.00. Prior to the execution of the contract for sale, Dennis and Yvonne Hobus prepared and signed a disclosure statement
required by the Act which reflected they were
not aware of any defects in the structural integrity of the home.
�¶2 Rather than consider extraneous materials,
I would overrule Watson v. Gibson Capital,
L.L.C., 2008 OK 56, 187 P.3d 735 holding that a
client-filed paper, to be effective, must either
bear the lawyer’s signature or be preceded by
the filing in the case of a document that discharges the lawyer. Because the majority has not
done so, I dissent in deference to stare decisis.
1. See vote in Ashland Oil, Inc. v. Corporation Comm’n, 1979 OK
17, 595 P.2d 423.
2. Dubuc v. Sirmons, 2001 OK 57, fn. 18, 93 P.3d 780.
2009 OK 57
VICTOR CARBAJAL, Appellant, v. BAHAM
SAFARY, Individually and PRESTIGIOUS
PROPERTIES, INC., an Oklahoma
Corporation, Appellees.
No. 104,547. July 7, 2009
ON CERTIORARI TO THE COURT OF
CIVIL APPEALS
DIVISION III
�¶0 The Court of Civil Appeals affirmed the
district court’s dismissal of lawsuit under the
Residential Property Condition Disclosure Act
wherein the plaintiff failed to present evidence
that the defendant realtor had in fact violated
Act in telling the plaintiff that the subject property was “clean” after the disclosure of a structural report by the sellers of the property. We
granted Appellant’s Petition for Certiorari.
1474
�¶2 The contract, which was effective October 28, 2002, provided for a ten-day inspection
period. Carbajal did not have a structural
inspection made. A few days after the contract
was signed, the Sellers gave Safary a copy of a
structural report prepared by a professional
engineer in May 2002. Safary orally informed
Carbajal that the sellers had delivered the
report. Carbajal testified Safary advised him
the report was “clean” and did not inform him
of any structural defects identified in the report.
Safary did not deliver a copy of the report to
Carbajal until after closing.
�¶3 Carbajal testified that he discovered the
home’s profound structural and foundation
problems after he took possession. He discovered large cracks in the foundation after pulling back the carpet. Two engineers retained by
Carbajal reported that the home had severe
structural problems and that the costs to pier
and grade the home and to repair the interior
would cost approximately $70,000.00. Carbajal
informed Safary about the defects and requested a copy of the report which was provided to
him at that time.
Vol. 80 — No. 18 — 7/11/2009
�¶4 Purchaser filed this action against Safary
for violations of the Residential Property Condition Disclosure Act and the matter proceeded to a bench trial. After the presentation of
Carbajal’s evidence, Safary orally moved for
dismissal of the action, the functional equivalent of a motion for directed verdict. Safary
argued Carbajal was suing the wrong party
and, in any event, he was improperly attempting to expand the liabilities under the Act to
create a new legal duty. Without memorializing the reasons for its decision, the trial court
entered a judgment sustaining Safary’s application for dismissal.
�¶5 On appeal to the Oklahoma Court of
Civil Appeals, the court recognized the test for
a motion to dismiss after the presentation of
the plaintiff’s evidence is “all evidence and
reasonable inferences therefrom which favor
the party opposing the motion must be taken
as true. Byford v. Town of Asher, 1994 OK 46, � 5,
874 P.2d 45,47. Any conflicting evidence which
is favorable to the movant must be disregarded. Id. If there is any evidence which tends to
show the plaintiff’s right to recover, the dismissal motion should be overruled and the
case allowed to proceed. Id.”
�¶6 Based on this standard, the Court of Civil
Appeals agreed that Carbajal failed to present
any evidence tending to show that his agent’s
disclosure duties under the Act were triggered
by the receipt of the six-month-old engineer’s
report. We grant certiorari to further clarify the
holding of the Oklahoma Court of Civil
Appeals.
�¶7 The section of the Residential Property
Condition Disclosure Act, as it pertains to the
duties of the real estate licensee representing a
purchaser, and as it existed at the time of the
contract for the sale of the home provides:
A. A real estate licensee representing or
assisting a seller has the duty to obtain
from the seller a disclaimer statement or a
disclosure statement and any amendment
required by this act and to make such statement available to potential purchasers
prior to acceptance of an offer to purchase.
B. A real estate licensee representing or
assisting a purchaser has the duty to
obtain and make available to the purchaser a disclaimer statement or a disclosure
statement and any amendment required
by the act prior to the acceptance of an
offer to purchase.
Vol. 80 — No. 18 — 7/11/2009
C. A real estate licensee has the duty to
disclose to the purchaser any defects in the
property actually known to the licensee
which are not included in the disclosure
statement or any amendment.
D. A real estate licensee who has complied
with the requirements of subsection A, B
and C of this section shall have no further
duties to the seller or the purchaser regarding any disclosures required under this
act.
A real estate licensee who has not complied
with the requirements of subsection A, B
and C of this section shall be subject to disciplinary action by the Oklahoma Real
Estate Commission as set forth in paragraph 6 of Section 858-208 of Title 59 of the
Oklahoma Statutes.
E. A real estate licensee has no duty to the
seller or the purchaser to conduct an independent inspection of the property and has
no duty to independently verify the accuracy or completeness of any statement
made by the seller in the disclaimer statement or the disclosure statement and any
amendment.
60 O.S. Supp. 1995 § 836. Superceded effective
01/01/2008
�¶8 The conclusion of the structural inspection presented to Safary states:
This house appears to be in relatively
good structural condition with evidence
indicated by the minor defects of slight and
minor foundation settlements. Minor slab
deflections were indicated, particularly
adjacent to the north wall and the east wall.
This engineer did not consider these deflections as structurally significant.
The exterior defects noted at the northwest corner are indicating minor foundation rotation but the patch on the masonry
was apparently done sometime ago, it
appears to be relatively old. The crack has
not re-opened (sic) and the movement does
not appear to be an active foundation settlement problem. The interior defects associated with the slab deflection were relatively minor. No structural significance
was attributed to any of these defects.
The slab deflection can be cosmetically
corrected. It is possible to place a grout or
mortar cap on top of the slab to level the
1475
slab around the perimeter, particularly
along the north wall in the northeast and
northwest bedrooms, and the southeast
bedroom. Since there were no significant
structural implications related to the slab
deflection, the cap installation would simply be a cosmetic repair of this defects (sic).
It is neither a structural requirement nor a
structural recommendation to cap the slab
or to raise the elevation of the slab. Underpinning of the slab can also be installed to
lift and level the slab. However, the problem of underpinning would be that the slab
is not constructed to support point loading
that would be accomplish by underpinning. A void would likely be created under
the slab, which would require under slab
pressure grouting to completely fill the
void and provide uniform support from
the slab. This engineer does not recommend underpinning of the slab, particularly because there are no interior defects
of structural significance attributed to the
slab deflections.
The engineer at the end of his report listed the
“Requirements” which state in their entirety:
“There are no structural requirements at this
residence.”
that Safary had any actual knowledge that
there was any defect in the house. The Engineer’s report showed the house to be in “relatively good structural condition” and the conclusion stated that there were no structural
requirements. Safary did all that was required
under 60 O.S. Supp. 1995 § 836 by informing
Carbajal that the report was “clean.” Taking
this evidence in the best light to Carbajal’s case,
the trial court was correct in granting a directed
verdict upon Safary’s motion to dismiss.
APPEALS VACATED;
JUDGMENT AFFIRMED.
�11 Concur: Hargrave, Opala, Kauger, Watt,
Winchester, JJ.
�12 Dissent: Edmondson, C.J., Taylor, V.C.J.,
Colbert, Reif, JJ.
2009 OK 54
IN THE MATTER OF THE DEATH OF
LOUIS REEDER: NAOMI REEDER,
Petitioner, v. ZINC CORPORATION OF
AMERICA; ACE AMERICAN INSURANCE
COMPANY and THE WORKERS’
COMPENSATION COURT, Respondents.
�¶9 The Court of Civil Appeals held:
No. 105,229. July 7, 2009
Other than the Broker’s receipt of the engineer’s report, Purchaser presents no other
evidence tending to show that Broker was
actually aware of any of the structural and
foundational defects discovered by Purchaser after he took possession and pulled back
the carpet. Thus, we must determine whether Broker’s receipt of the report, standing
alone, triggered its duty to disclose “defects
in the property actually known to the licensee which are not included in the disclosure
statement or any amendment.” In this
regard, § 832(9) of the Act is instructive. This
section defines the term “Defect” as “a condition, malfunction or problem that would
have a materially adverse effect on the monetary value of the property, or that would
impair the health or safety of future occupants of the property.”
When we apply this definition to the content
of the engineer’s report, we cannot find that
the engineer identified any “defects” as that
term is defined in the Act.
�¶10 Other than the Engineer’s report, Carbajal cannot point to any evidence that shows
1476
CERTIORARI TO THE COURT OF CIVIL
APPEALS, DIVISION I, APPEAL FROM
THE WORKERS’ COMPENSATION
COURT, STATE OF OKLAHOMA,
HONORABLE RICHARD L. BLANCHARD,
TRIAL JUDGE
�¶0 Recipient of a Workers’ Compensation
Court death benefit award requested prejudgment interest be added to the award of benefits.
The trial judge of the Workers’ Compensation
Court denied recipient’s request and the Court
of Civil Appeals sustained the denial. In her
petition for certiorari, death benefit recipient
contends that 85 O.S. § 3.6 of the Workers’
Compensation Act incorporates 12 O.S. § 727
for the purpose of determining interest on
Workers’ Compensation awards, including the
provisions of § 727 that mandate prejudgment
interest. Upon certiorari review, this Court
finds the Legislature intended § 727 to govern
the computation of interest that was otherwise
authorized by ¶ 3.6, but not to serve as general
authority for the award of prejudgment and
post-judgment on Workers’ Compensation
awards.
Vol. 80 — No. 18 — 7/11/2009
APPEALS VACATED; JUDGMENT
DENYING REQUEST FOR PREJUDGMENT
INTEREST SUSTAINED.
W.E. Sparks, Tulsa, Oklahoma, for Petitioner,
Harry Leroy Endicott, Donald A. Bullard, Oklahoma City, Oklahoma, for Respondents.
REIF, J.:
�¶1 The issue presented on certiorari review
is whether the Workers’ Compensation Act, 85
O.S. § 3.6, authorizes prejudgment interest on
workers’ compensation court awards. This
issue arises from proceedings prosecuted by
Naomi Reeder to obtain death benefits for the
loss of her husband due to an occupational
disease. The factual background and procedural history of the award are set forth in Zinc
Corporation of America v. Reeder, 2007 OK CIV
APP 66, 164 P.3d 1132 (Reeder I), and are not
necessary to decide whether 3.6 authorizes prejudgment interest on awards in the case at
hand (Reeder II).
�¶2 This latter controversy centers on language in § 3.6 that provides “interest shall be
computed pursuant to Section § 727 of Title 12
of the Oklahoma Statutes.” More particularly,
the question is whether this language incorporates all of the provisions of 727 concerning
interest on judgments (including prejudgment
interest), or just the provisions which specify
how interest is to be computed.1 The question
of the extent to which § 3.6 incorporates the
provisions of § 727 is a question of statutory
construction which is a question of law. Arrow
Tool & Gauge v. Mead, 2000 OK 86, ¶6, 16 P.3d
1120, 1123.
�¶3 The reference to § 727 at issue is found in
subsection (G) of § 3.6. The complete text of subsection (G) states: “For purposes of this section,
interest shall be computed pursuant to Section
727 of Title 12 of the Oklahoma Statutes.” The
language “this section” clearly refers to § 3.6 and
one of the “purposes” of § 3.6 is to specify the
circumstances under which interest is allowed
on an award. Significantly, all the authorizations
of interest in § 3.6 - subsections (A), (C), and (D)
— involve post-award interest.2
�¶4 To understand the language in subsection
(G) that “interest shall be computed pursuant to
Section 727” it is necessary to know what § 727
says about “computing” interest.3 The general
directive in § 727 for “computing” interest is
Vol. 80 — No. 18 — 7/11/2009
that “interest shall be determined using a rate
equal to the average United States Treasury Bill
rate of the preceding calendar year as certified
to the Administrative Director of the Courts by
the State Treasurer on the first regular business
day in January of each year plus four percentage points.” 12 O.S.2001 § 727(I).
�¶5 It is well settled that words used in a statute are to be understood in their ordinary sense,
except when a contrary intention plainly
appears, or when given a special definition by
law. 25 O.S. 2001 § 1. It is reasonably clear that
the Legislature used the term “computed” in
§ 3.6(G) and “computing” in § 727(I) in the same
sense. Each of these words are derived from the
verb “compute” and in context mean: “To determine by mathematics esp. by numerical methods: computed the tax due [and to] determine an
amount or number.” American Heritage Dictionary 304 (2nd College ed.) The directive that
interest provided in section 3.6 “shall be computed pursuant to Section 727 of Title 12” simply means that the court shall use the applicable
rate of interest provided by § 727. It does not
reflect intent to incorporate § 727 as a general
source of authority for the award of either preaward or post-award interest.
�¶6 Our conclusion that subsection 3.6(G)
was merely prescribing the use of the rate of
interest as set forth in § 727, is further supported by another provision in the 1993 amendment to § 3.6. The 1993 amendment deleted the
fixed interest rate of 18% that had previously
been applied to interest in certain post-award
cases in the 1991 version and added the language: “For purposes of this section, interest
shall be computed pursuant to Section 727 of
Title 12 of the Oklahoma Statutes.”4 In place of
the fixed interest rate, the Legislature substituted the interest rate in 727 for all purposes
under § 3.6.
�¶7 It has long been recognized that the
amendment of an act in general, or of a particular section of an act, implies merely a change of
its provision on the same subject to which the
act or section relates. Piskey v. State ex rel Martin, 1958 OK 153, 327 P.2d 463 (syllabus 3). In
the case at hand, the “same subject” to which
the prior version of § 3.6 and its 1993 amendment relate is interest in certain post-award cases
and the “change of its provisions” on this subject embraces the rate of interest only.
�¶8 Mrs. Reeder’s quest to add prejudgment
interest to the death benefit award has been
1477
predicated on a perceived intent by the Legislature to treat Workers’ Compensation awards
“uniformly” with personal injury judgments.
She points out that such uniform treatment is
manifest because the Legislature did not
expressly limit interest in subsection (G) to
post-judgment interest. To be sure, the Legislature did not use the modifying term “postjudgment” to describe the interest that “shall
be computed pursuant to Section 727.” However, as noted, the Legislature did state that the
computation of interest computed pursuant to
§ 727 was “[f]or purposes of this section [i.e §
3.6].” That is, any interest pursuant to § 727
was for interest authorized by 3.6.
�¶9 In conclusion, we hold that the language
in subsection 3.6(G) of the Workers’ Compensation Act, directing that “interest shall be
computed pursuant to Section 727 of Title 12,”
means that interest provided in § 3.6 shall be
computed using the rate of interest set forth in
§ 727. This interpretation is dictated by the text
of subsection 3.6(G), the ordinary meaning of
the words therein and the legislative history of
§ 3.6. These same considerations reveal no
intent on the part of the Legislature for § 727 to
serve as a general source of authority to award
interest on Workers’ Compensation awards.
Accordingly, the Workers’ Compensation Court
did not err in denying the request of Naomi
Reeder to add prejudgment interest to an
award of death benefits, as such interest is not
authorized by § 3.6 of the Workers’ Compensation Act or any other provision of the Workers’
Compensation Act. The judgment denying the
request to add prejudgment interest to the
award is SUSTAINED.
�¶10 Edmondson, C.J., Taylor, V.C.J., Hargrave, Kauger, Watt, Winchester, Colbert, and
Reif, JJ., concur.
�¶11 Opala, J., concur in part; dissent in
part.
1. Title 12 O.S. Supp. 2008 727, provides for prejudgment and postjudgment interest and the method to compute that interest on district
court judgments.
2. The pertinent parts of subsections of 85 O.S.2001 § 3.6 , are identical to 85 O.S. Supp. 1995 § 3.6, in effect at the time of Claimant’s death
January 13, 1996.
The pertinent part of subsection (A) states: “... Provided, when the
order of the Judge of the Court making an award to a claimant is
appealed by the employer or the insurance carrier, interest shall be
allowed on the accrued amounts of the award due from the date the
award was filed, if the award is not modified or vacated on appeal.”
The pertinent part of subsection (C) states: “...The Supreme Court
shall have original jurisdiction of such action, and shall prescribe rules
for the commencement and trial of the same. Such action shall be commenced by filing with the Clerk of the Supreme Court a certified copy
of the order, decision or award of the Workers’ Compensation Court
sitting en banc or the judge attached to the petition by the complaint
1478
wherein the complainant or petitioner shall make his assignments or
specifications as to wherein said order, decision or award is erroneous
or illegal. Provided, however, no proceeding to reverse, vacate or modify any order, decision or award of the Workers’ Compensation Court
sitting en banc or judge of the Court wherein compensation has been
awarded an injured employee shall be entertained by the Supreme
Court unless the Administrator shall take a written undertaking to the
claimant executed on the part of the respondent or insurance carrier, or
both, with one or more sureties to be approved by the Administrator, to
the effect that the appellant will pay the amount of the award rendered
therein, together with interest thereon from the date of the award by the
judge of the Court and all costs of the proceeding, or on the further order
of the Workers’ Compensation Court sitting en banc or judge of the
Court after the appeal has been decided by the Supreme Court, except
that municipalities and other political subdivisions of the State of Oklahoma are exempt from making such written undertakings. ... The
Supreme Court shall require the appealing party to file within forty-five
(45) days from the date of the filing of an appeal or an order appealed
from, a transcript of the record of the proceedings before the Workers’
Compensation Court, or upon application and for good cause shown,
the Supreme Court may extend the time for filing said transcript of the
record for a period of time not to exceed ninety (90) days from said date,
and such action shall be subject to the law and practice applicable to
other civil actions cognizable in said Supreme Court. The Court whose
action was appealed shall enter any order directed by the Supreme
Court under the final determination.”
Subsection (D) states: “When the only controverted issue in a death
claim is the determination of proper beneficiaries entitled to receive
death benefits, and the parties-beneficiary appeal the decision of the
Court, the employer or insurance carrier may pay the proceeds, as they
accrue, to the Administrator. The Administrator shall hold the proceeds in trust in an interest-bearing account during the appeal period
and shall distribute the proceeds and interest to the proper beneficiaries upon written direction of the Court. The employer or insurance
carrier shall not be taxed interest or cost on the order of the death claim
if payments have been made to the Administrator as they accrue.”
3. 85 O.S.2001 § 3.6 (G) , is also identical to 85 O.S. Supp. 1995 § 3.6
(G), which states: “For purposes of this section, interest shall be computed pursuant to Section 727 of Title 12 of the Oklahoma Statutes.”
4. The 1993 amendment designated this as subsection (E), and was
subsequently was renumbered in 1994 as subsection (G).
2009 OK 55
OKLAHOMA GOODWILL INDUSTRIES,
INC., Plaintiff/Appellee, v. OKLAHOMA
EMPLOYMENT SECURITY COMMISSION,
Defendant/Appellant, and ASSESSMENT
BOARD OF THE OKLAHOMA
EMPLOYMENT SECURITY COMMISSION;
BOARD OF REVIEW OF THE OKLAHOMA
EMPLOYMENT SECURITY COMMISSION;
AND BEVERLY A. PETERS, Defendants.
No. 102,539. July 7, 2009
ORDER
�¶1 Rehearing is granted. The May 20, 2008,
majority and dissenting opinions in the abovestyled matter are withdrawn and the opinion
issued this date is substituted therefor. The
vote below is on the grant of rehearing only.
The vote on the substituted opinion is shown
thereon.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 2nd DAY
OF JULY, 2009.
/s/John Reif
ACTING CHIEF JUSTICE
Vol. 80 — No. 18 — 7/11/2009
�¶2 Edmondson, C.J., Watt, Winchester, Colbert, and Reif, JJ., concur.
�¶3 Taylor, V.C.J., Hargrave, Opala, and
Kauger, JJ., dissent.
ON APPEAL FROM THE DISTRICT
COURT, OKLAHOMA COUNTY
HONORABLE VICKI ROBERTSON,
TRIAL JUDGE
�¶0 Oklahoma Goodwill Industries, Inc.,
operates rehabilitative work programs for disabled individuals. These programs are operated at Goodwill owned facilities, such as its
sheltered workshop and thrift shops, and at
government facilities and offices pursuant to
contracts authorized by state and federal law.
Oklahoma law provides at 40 O.S. Supp. 2008
§ 1-210(7)(d), an exemption from unemployment compensation taxes for “an individual
receiving rehabilitation ... while participating
in a program in a facility that: (i) conducts a
program of rehabilitation for [disabled] individuals whose earning capacity is impaired ...
or (ii) conducts a program that provides remunerative work for [disabled] individuals who ...
cannot be readily absorbed into the competitive labor market.” The Oklahoma Employment Security Commission and Assessment
Board determined that this exemption did not
apply to a claimant who had worked in a
Goodwill rehabilitation program at Tinker Air
Force Base. The Commission and Assessment
Board concluded the exemption is limited to
persons who work in a facility operated by
Goodwill and that Tinker Air Force Base is not
such a facility. On appeal by Goodwill to challenge this ruling, the district court ruled that
the exemption did not depend upon the place
where the individual works, but upon an individual’s participation in a rehabilitative program. Upon further appeal to this Court, we
agree with the trial court and affirm.
TRIAL COURT JUDGMENT AFFIRMED.
John E. Miley, Deputy General Counsel, Oklahoma Employment Security Commission,
Oklahoma City, Oklahoma, for Appellant.
Sarah J. Timberlake and William C. McAlister,
Abowitz, Timberlake & Dahnke, P.C., Oklahoma City, Oklahoma, for Appellee.
PER CURIAM:
�¶1 The issue presented is whether Oklahoma Goodwill Industries, Inc., is exempt from
paying unemployment taxes on individuals
Vol. 80 — No. 18 — 7/11/2009
participating in rehabilitation and/or remunerative work/training programs that Goodwill operates at Tinker Air Force Base and in
Oklahoma state offices. Goodwill provides
such programs pursuant to federal and state
contracts mandating that individuals with
severe handicaps or disabilities be utilized in
performing contracted-for commodities or services. We hold that the Legislature intended to
exempt employers, like Goodwill, from the
payment of unemployment taxes when operating rehabilitation or remunerative work programs for individuals (1) whose earning capacity is impaired by age, physical or mental
deficiency, or injury, or (2) who, because of
their impaired mental or physical capacity,
cannot be readily absorbed into the competitive labor market, as provided by 40 O.S. Supp.
2008 � § 1-210(7)(d).1 We further hold that the
purpose of this exemption is to promote programs of this general nature, as opposed to
only programs operated at employer-owned
facilities. Accordingly, this exemption extends
to individuals who participate in rehabilitation
work programs operated at non-Goodwill
owned facilities like Tinker Air Force Base and
state offices pursuant to the federal and state
contracts.
FACTS AND PROCEDURAL HISTORY
�¶2 Goodwill is a non-profit organization
that provides rehabilitation and remunerative
work for severely disabled persons. Individuals who participate in Goodwill’s rehabilitation program(s) are classified as consumers.
Goodwill assigns consumers to work at its
sheltered workshop and thrift shops, as well
as at Tinker Air Force Base and state offices.
Consumers who provide services at Tinker
Air Force Base and the state offices do so pursuant to federal and state set-aside contracts
authorized by the Javits-Wagner-O’Day Act
(JWOD Act) (41 U.S.C. §§ 46 through 48c) and
the State Use Act (74 O.S.2001 and Supp. 2008
§§ 3000 through 3010).2
�¶3 Under the contracts with Tinker Air Force
Base and the state, the consumers perform
supervised custodial services. At least seventyfive percent (75%) of the hours worked under
these contracts must be supplied by Goodwill
consumers. Goodwill maintains office space at
Tinker Air Force Base and in the state office
buildings which is utilized to offer rehabilitation
services to consumers working as custodians
under the respective contracts. The support that
Goodwill supplies at government facilities
1479
include: (1) team meetings between case workers and trainers; (2) vocational evaluations by
the case workers and/or trainers; (3) meetings
or conferences with consumers and/or their representatives; and (4) individualized training.
�¶4 In 2002, Goodwill’s newly appointed
president concluded that Goodwill consumers
working at Tinker Air Force Base and state
offices under these governmental contracts fall
within the statutory exemption found at 1210(7)(d) from unemployment coverage. This
subsection provides:
(7) For the purposes of paragraphs (3)
and (4) of this section the term ‘employment’ does not apply to service performed:
***
(d) by an individual receiving rehabilitation or remunerative work while participating or enrolled in a program in a facility
that:
(i) conducts a program of rehabilitation
for individuals whose earning capacity
is impaired by age, physical or mental
deficiency, or injury; or
(ii) conducts a program that provides
remunerative work for individuals
who, because of their impaired mental
or physical capacity cannot be readily
absorbed into the competitive labor
market ....
Goodwill stopped reporting the wages of the
individuals working under federal and state
contracts on January 1, 2003.
�¶5 The Oklahoma Employment Security
Commission’s (OESC) tax enforcement officer
investigated several claims for unemployment
benefits by Goodwill consumers who had been
separated from employment under the federal
and state contracts. In reviewing the claim of
Beverly Peters, a Goodwill consumer who had
been assigned to work at Tinker Air Force Base,
OESC determined that the services performed
there did not fall within the statutory exemption from unemployment taxes and awarded
her unemployment benefits. Following the
award and entry of an assessment, Goodwill
brought a tax protest before the OESC Assessment Board (Board). The sole issue addressed
by the Board was whether individuals performing service as part of a rehabilitation work
program under the terms of the JWOD Act and
1480
the State Use Act are exempt from coverage as
provided in § 1-210(7)(d).
�¶6 OESC has argued before the Assessment
Board and on appeal in the district court that
exemptions from coverage should be narrowly
construed against the taxpayer. OESC has
asserted that intent to limit the exemption to
only those workers who work in an employerowned facility is reflected in the Legislature’s
use of the term “in a facility” to describe where
eligible programs are conducted.
¶� 7 Goodwill has countered that its consumers who perform services that are rehabilitative
in nature, should be exempt from coverage if
they “cannot be readily absorbed in the competitive labor market” because of their mental
or physical limitations, regardless of where the
rehabilitative work is performed. Goodwill
believes the statutory exemption is tied to the
nature of the rehabilitative program provided
by Goodwill and, therefore, extends to rehabilitative programs at Tinker and state offices
under the aforementioned state and federal
contracts.
�¶8 The Board affirmed the OESC determination. Upon Goodwill’s appeal to the district
court, the trial court reversed the Board’s order.
Upon further appeal to this Court by OESC, we
have retained this case for disposition. We
agree with Goodwill’s interpretation of 1210(7)(d).
GOODWILL REHABILITATIVE WORK
PROGRAMS AT FEDERAL AND STATE
FACILITIES ARE EXEMPT FROM
UNEMPLOYMENT TAXES UNDER 40 O.S.
SUPP. 2008 § 1-210(7)(d).
�¶9 It is undisputed that the rehabilitation
programs Goodwill provides at Tinker Air
Force Base and state offices are the type of
rehabilitation work programs exempted by 1210(7)(d). However, OESC argues that only
consumers participating in a program “in a
facility” fall under the exemption. More particularly, OESC asserts the tax exemption is
applicable to Goodwill’s services only when a
consumer is employed in a sheltered workshop or other location owned and/or operated by Goodwill. Given the fact that both federal and state law promote rehabilitation and
remunerative work programs on-site at federal and state facilities, we cannot agree that
the Legislature intended such a restrictive
application of the exemption.
Vol. 80 — No. 18 — 7/11/2009
�¶10 It is well settled that Legislative intent is
not determined from isolated phrases in a statutory framework. Rather, intent is ascertained
from the whole act in light of its general purpose and objective. McSorley v. Hertz Corp., 1994
OK 120, ¶6, 885 P.2d 1343; Oglesby v. Liberty
Mutual Ins. Co., 1992 OK 61, ¶8, 832 P.2d 834;
Smicklas v. Spitz, 1992 OK 145, 846 P.2d 362.
�¶11 In general, “facility” is construed as an
inclusive term intended to embrace anything
which aides in the performance of a duty.3
Rather than a restricted interpretation to indicate services provided at a physical location
owned, operated or controlled by Goodwill, it
is much more likely the term “facility” in the
statute relates to the entity who has undertaken
the duty to provide the program of rehabilitation or remunerative work to consumers with
severe disabilities. While a “location” may provide the venue for services, it cannot provide
the rehabilitation or remunerative work contemplated by the legislative enactment. In the
case at hand the “facility” providing the service is Goodwill. This meaning is also dictated
by the fact that the tax exemption is extended
to a service provider conducting the program
of rehabilitation or remunerative work, not to a
physical location.
�¶12 This conclusion is further supported by
case law from other jurisdictions. Although
none of the following cases mandate the result
we reach on this matter, they are instructive. In
Local Union 1106, International Brotherhood of
Electrical Workers, AFL-CIO v. Goodwill Industries of Muskegon County, Inc., 440 N.W.2d 635
(Mich. Ct. App. 1989), the Michigan court considered whether Goodwill consumers were
“employees” while receiving rehabilitation and
placement in competitive employment for purposes of labor relations laws. In the Michigan
case, Goodwill treated their individuals in
much the same manner as are the Oklahoma
consumers. After training, the Michigan consumers were supervised by Goodwill staff and
paid a minimum wage to perform labor and
janitorial services pursuant to Goodwill’s contracts with “churches, public schools, state
buildings, and commercial (e.g., doctors’) offices.”4 Id. at 636 (emphasis added).
�¶13 The Michigan court determined that the
Goodwill consumers were not employees in
the traditional sense. It recognized that the
Goodwill consumers were employees only in
the “generic” sense of the word and that the
employment relationship was “different in
Vol. 80 — No. 18 — 7/11/2009
many, if not most, significant respects from the
normal employment relationship.” The consumers were not “hired” for their competence.
Rather, they were included within the facility’s
program not on the basis of competence but on
the existence of debilitating conditions.
�¶14 In a similar case, the Fourth Circuit also
determined that Goodwill consumers were not
employees for purposes of labor relations laws.
In Baltimore Goodwill Industries v. N.L.R.B., 134
F.3d 227 (4th Cir. 1998), the federal tribunal
recognized that Goodwill’s programs were primarily rehabilitative and atypical compared
with private industrial settings.
�¶15 The highest court in West Virginia considered the issue of unemployment compensation for a claimant receiving rehabilitative
training in LeMasters v. Gatson, 458 S.E.2d 613
(W.Va. 1995). Like Oklahoma’s exemption, the
West Virginia statute exempted from the term
“employment” services performed “in a facility conducted for the purpose of carrying out a
program of rehabilitation.” Id. at 616. The
“facility” in LeMasters was the West Virginia
Society for the Blind. In a program not unlike
that of Goodwill in the case at hand, the consumer was employed as a food services worker
in a cafeteria at the United States Department
of Energy facility in Morgantown. After being
terminated by the Society, the consumer sought
unemployment compensation. The West Virginia court determined that the employment at
the facility appeared “to be the very type specifically exempted from unemployment compensation.” Id.
�¶16 In our view, Goodwill’s contracts with
Tinker Air Force Base and the state offices provide opportunities for Goodwill’s consumers
to receive rehabilitation and remunerative
work in a “sheltered” environment comparable
to Goodwill owned facilities. Such contracts
are a safety net for those individuals with disabilities who cannot readily find work. Relief
from the payment of unemployment benefits
to non-profit agencies like Goodwill serves as a
substantial incentive for charitable organizations to contract with federal and state agencies
in providing rehabilitative services and remunerative work to individuals with disabilities
who most likely are unable to obtain gainful
employment elsewhere.
�¶17 Congress and the Oklahoma Legislature
have struck the balance in favor of promoting
the viability of rehabilitative and remunerative
1481
services over the possibility of consumers getting an unemployment check.5 They have done
so because temporary unemployment benefits
are poorly suited to help individuals with disabilities. Such benefits often expire before consumers find new employment.
�¶18 Moreover, Congress has provided alternative means of support for unemployed individuals with disabilities through supplemental
security income (SSI).6 Therefore, Goodwill
consumers who become unemployed are not
without a monetary remedy should they be
unable or unwilling to perform the tasks
assigned.7
CONCLUSION
�¶19 We hold that § 1-210(7)(d) exempts
Goodwill from the payment of unemployment
taxes when conducting programs of rehabilitation or remunerative work for individuals
whose earning capacity is impaired by age,
physical or mental deficiency, or injury, or
who, because of their impaired mental or
physical capacity, cannot be readily absorbed
into the competitive labor market. We further
hold this exempting extends to individuals
providing services at federal facilities and in
state office buildings under contracts Goodwill
has entered into pursuant to the JWOD Act and
the State Use Act. This determination is supported by the purpose of legislation favoring
employment of individuals with disabilities,
the legislative intent, and extant jurisprudence.
The trial court judgment is AFFIRMED.
�¶20 Edmondson, C.J., Watt, Winchester,
Colbert, and Reif, JJ., concur.
�¶21 Taylor, V.C.J., Hargrave, Opala, and
Kauger, JJ., dissent.
1. Title 40 O.S. Supp. 2008 § 1-210(7)(d) is identical to the 2002 version of the subsection that was in effect when this matter arose.
Because amendments to other subsections of § 1-210 subsequent to
2002 are immaterial to the question before us, references are to the current statute.
2. The Javits-Wagner-O’Day Act [JWOD Act] (41 U.S.C. §§ 46
through 48c) establishes a committee known as the “Committee for
Purchase from People Who Are Blind or Severely Disabled” and
authorizes it to establish and maintain a list of commodities and services provided by qualified nonprofit agencies for the blind or severely handicapped which it has determined are suitable for procurement
by the government (the “procurement list”). 41 U.S.C. §§ 46(a), 47(a).
Once a commodity or service has been added to the procurement list,
contracting agencies are required to procure that commodity or service
from a qualified agency for the blind or severely handicapped if it is
available within the time period required. 41 U.S.C. § 48.
The State Use Act (74 O.S.2001 and Supp. 2008 §§ 3000 through
3010) creates in the Department of Central Services (DCS) a committee
known as the “State Use Committee” (74 O.S. Supp. 2008 § 3001)
whose duties include (a) the certification of severely disabled individuals and sheltered workshops as qualified organizations (74 O.S. Supp.
2008 § 3003(5)) which contract with the State to provide products and
services made by severely disabled individuals, and (b) the agencies
1482
are required to purchase any needed goods and services on the procurement schedule from the designated nonprofit agencies which
provide “employment to people with severe disabilities at the fair
market price determined by the Committee if the product or service
is available within the period required by the entity.” 74 O.S.2001
§ 3007(A). See O.C. 580:15-2-2 (2005) (DCS administrative rules.)
3. Illinois Bell Telephone Co. v. Miner, 136 N.E.2d 1 (Ill. App. Ct. 1956);
Nekoosa-Edwards Paper Co. v. Minneapolis, St.P.& S.S.M. Ry Co., 620 (Wis.
1935).
4. Although the opinion refers to Goodwill’s program as a “workshop operation,” it is obvious that the consumers custodial services
were offered in off-site locations.
5. Tyler v. Smith, 472 F.SupP.2d 818 (M.D. La. 2006).
6. See, 20 C.F.R. 416.110.
7. Tyler v. Smith, see note 8, supra.
OPALA, J., with whom TAYLOR, V.C.J., joins,
dissenting
�¶1 In public-law litigation the duty is ours
— neither that of the litigants nor that of the
trial court — to frame the issues to be resolved
on review. The court decides this case today
solely on the issues pressed by the taxpayer
and conveniently forgets that this is not a private controversy but one in which this court
alone is required to formulate the issues to be
reached for disposition.1
�¶2 As I analyze the record before us, the sole
issue that is dispositive of the case and must
be reached here is whether Oklahoma Goodwill Industries (Goodwill or taxpayer) presented below a stale claim that is barred by laches
and estoppel for Goodwill’s failure to raise the
issue within a reasonable time after the taxpayer
first knew or should have known that the tax
stood imposed by those in authority.
�¶3 In 2003 the Oklahoma Employment Security Commission (OESC or taxing authority)
ruled that Goodwill employees who provide
janitorial services at Tinker and State office
buildings under state and federal contracts
were entitled to unemployment compensation
benefits. Today’s reversal of that decision rests
entirely on Goodwill’s own analysis that the
services of those individuals fall within the
statutory exception from unemployment
taxes.2
�¶4 As I view the case before us, the burden
to contest the applicability of the tax fell on
the taxpayer when it first knew or should
have learned of OESC’s position in this matter.3 Goodwill utterly failed to bring here a
record demonstrating that its claim is not
stale. The record does not show that Goodwill
timely resisted the application of the tax to its
employees working at Tinker and State office
buildings. On the other hand, clear indicia
present in the record show that prior to 2002 an
earlier Goodwill management had, for an indeterminate period of time, (a) accepted the rate
and applicability of the unemployment insur-
Vol. 80 — No. 18 — 7/11/2009
ance tax to its employees who work at federal
and state facilities and (b) reported the wages
of these individuals on its quarterly statements
to the OESC.4 By these reports Goodwill has
represented to the taxing authority that the
employment of all similarly classified persons
is not statutorily exempt from coverage. It was
not until the appointment of a new president in
2002 that Goodwill changed its position. It
now insists on pressing for judicial relief
from its earlier self-assessed tax liability.
�¶5 There is a clear distinction between challenging the very applicability of a tax and
contesting the amount of the assessment. With
each change of assessment, a taxpayer is given
a new claim and another opportunity timely to
challenge the assessed amount. But at the initial assessment of a tax, a taxpayer must act
promptly to challenge the applicability of that
assessment to the taxpayer who refuses to concede that the levy is proper.
�¶6 An unemployment tax is an ever recurring levy that does not require an annual reassessment. The tax stands assessed at the same
rate by operation of law and continues until it
is changed by the Legislature. A taxpayer
makes a self-assessment of its unemployment
tax liability based on the payroll.5 When the tax
is continuing and the taxpayer remains silent
for a considerable time, the taxing authority
may and will assume that the tax was not
improperly imposed. A taxpayer must be diligent in challenging the applicability of a tax by
timely notice to the proper government authority and in seeking a hearing on the contested
issue.
�¶7 Goodwill should have challenged the
applicability of the unemployment tax when it
first employed persons under the federal and
state programs and reported their wages to
the OESC. By its self-assessment and classification of these individuals for unemployment
benefits over a long period, Goodwill must
now be viewed as having known of OESC’s
legal position with respect to this controversy.
Because Goodwill waited for a long time after
it acquired knowledge of, or should have
learned of, OESC’s position to contest its liability for the tax, Goodwill presented in this case
a stale claim. That claim stands barred by
laches and estoppel.6 Goodwill cannot raise its
selected issue for judicial resolution until the
Legislature changes the tax either as to the rate
Vol. 80 — No. 18 — 7/11/2009
or manner in which it is to be collected or the
OESC in some fashion alters its position vis-avis the taxpayer. From my review of the record,
the only change that ever occurred here was
Goodwill’s altered perception of disadvantage
from surrounding circumstances but the government’s position never underwent any
changes.
�¶8 It is for these reasons that I would hold
this claim barred from judicial recognition as
rendered stale by Goodwill’s long-standing
inaction. In short, Goodwill’s hope for tax
exoneration must fail in its entirety.
1. The question of employer’s liability for unemployment insurance taxes presents for our resolution an issue of public law. When
confronting a matter of public law, this court may grant corrective
relief on any applicable legal theory dispositive of the case and supported by the record. Schulte Oil Co., Inc. v. Oklahoma Tax Com’n,
1994 OK 103, � ¶7, 882 P.2d 65, 69 (a question of tax liability presents a
public-law controversy); Yeatman v. Northern Oklahoma Resource
Center of Enid, 2004 OK 27, � ¶15, 89 P.3d 1095, 1101 (when resolving a
public-law question, we are free to choose sua sponte the dispositive
public-law theory although the wrong one is advanced); Amos v. Spiro
Public Schools, 2004 OK 4, � ¶7, 85 P.3d 813, 816.
2. For the provisions of the challenged unemployment tax exemption statute see 40 O.S.2001 � § 1-210(7)(d).
3. See, e.g., R. H. Stearns Company v. United States, 291 U.S. 54, 54
S.Ct. 325, 328, 78 L.Ed. 647 (1934) (the burden is on the taxpayer who
seeks a refund to prove the allegation that an overassessment was
illegally entered for the previous year).
4. According to the president of Goodwill (a) after she was appointed to that position in 2002 she decided that the terms of � 1-210(7)(d)
exempted the wages of the consumers involved here from unemployment taxes and (b) on 1 January 2003 Goodwill stopped reporting their
wages to the OESC. She believed the consumers’ wages that had been
reported and paid prior to 2002 would have fallen under the statutory
exemption. She did not know why Goodwill failed to claim the exemption before 2002, but she believed those pre-2002 wages were wrongly
reported. The transcript of proceedings held on 28 January 2004 before
the OESC Assessment Board shows at pgs. 81- 82:
Q. [OESC counsel] And one of the things that’s changed was that
you stopped reporting wages to us. And that’s what I’m saying —
A. [Goodwill president] I think we reported wrongly before. I
think it was incorrect. I don’t know why it was incorrect before, but
I know it was incorrect before. People that had wages reported
prior to 2002, who were in the rehabilitation program, would have
fallen under this statute. I don’t know why that exemption was
not claimed at that time.
5. The unemployment compensation tax is akin to income tax
which is a continuing assessment on the income and runs from year to
year. In Hudson v. U.S., 82 Ct.Cl. 15, 12 F.Supp. 620 (Ct.Cl.1935), the
court stated “the “income tax is a general tax on all income;” “it is a
continuing tax, usually divided for convenience in collection into periods of one year.” See also U.S. v. Jefferson-Pilot Life Ins. Co., 49 F.3d
1020, 1022-23 (4th Cir.1995), where the court dealt with a “continuing
tax levy on salary or wages” payable to a taxpayer on a recurring
basis. The court explained that the continuing levy provision of the
federal statute was designed to ease the substantial administrative
problems that would be faced if the IRS could only impose successive
levies upon remuneration contractually owed a defaulting taxpayer
for personal services. Id.
6. A proceeding to recover a refund of overpayment of unemployment taxes is in its nature equitable and governed by equitable principles. State of Oklahoma ex Rel. Oklahoma Employment Security
Commission v. Sanders, 1956 OK 262, ¶0 syl.2, ¶7, 304 P.2d 287, 288-89.
Since, in this type of action, the plaintiff must recover by virtue of a
right measured by equitable standards, it follows that it is open to the
defendant to show any state of facts which, according to those standards, would deny him or her the right. Stone v. White, 301 U.S. 532,
534-35, 57 S.Ct. 851, 852-53, 81 L.Ed. 1265 (1937).
1483
Oklahoma Association
of Municipal Attorneys
FALL CONFERENCE
September 23, 2009 • 8:30 a.m. – 4:15 p.m.
Doubletree Hotel Downtown, 616 W. 7th, Tulsa
WORKSHOP SESSIONS
Zealous Advocacy: A Client Perspective
Construction Contracts: How You Can Protect
the Owner and Maintain Control through Best
Practices in Contract Documents
Municipal Courts: Prosecution in Municipal
Court; Establishing Fines Under State Law Limitations
Legislative Update
Code Enforcement
For a membership application,
call OAMA, 1-800-324-6651 long distance
or 528-7515 in the OKC metro area.
This course has presumptive approval of the
Oklahoma Bar Association Mandatory Legal Education Commission
for 6 hours CLE credit of which 1 hour is credit covering
professional responsibility, legal ethics, or legal malpractice.
OAMA 2009 FALL CONFERENCE
Registration Fee:
OAMA members - $75 (lunch included)
Non-members - $100
Purchase Order No.___________
Check Enclosed
Please Bill
Please duplicate form
for additional registrants.
Name & Title
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MAIL this form to arrive no later than Friday, September 18, to OAMA, 201 N.E.
23rd, Oklahoma City, OK 73105, or FAX to
405-528-7560. For a full refund, cancellations must be received in writing no later
than Friday, September 18. Cancellations
made after that time will receive only a 50%
refund. No cancellations will be accepted
the day of the meeting. All registrants will be
billed. Registration is considered confirmation to attend.
NOTICE OF JUDICIAL VACANCY
The Judicial Nominating Commission seeks applicants to fill the following judicial office:
Associate District Judge
Third Judicial District
Tillman County, Oklahoma
This vacancy is created by the retirement of the Honorable David R. Barnett, effective
July 1, 2009.
To be appointed an Associate District Judge, an individual must be a registered voter
of the applicable judicial district at the time (s)he takes the oath of office and assumes
the duties of office. Additionally, prior to appointment, the appointee must have had
a minimum of two years experience as a licensed practicing attorney, or as a judge of
a court of record, or combination thereof, within the State of Oklahoma.
Application forms can be obtained on line at www.oscn.net by following the link to the
Judicial Nominating Commission, or by contacting Tammy Reaves, Administrative Office of
the Courts, 1915 North Stiles, Suite 305, Oklahoma City, Oklahoma 73105, (405) 521-2450, and
should be submitted to the Chairman of the Commission at the same address no later than
5:00 p.m., Friday, July 31, 2009. If applications are mailed, they must be postmarked by
midnight, July 31, 2009.
Robert C. Margo, Chairman
Oklahoma Judicial Nominating Commission
1484
Vol. 80 — No. 18 — 7/11/2009
BAR NEWS
Oklahoma Bar Association
Nominating Petitions
(See Article II and Article III of the OBA Bylaws)
OFFICERS
BOARD OF GOVERNORS
president-elect
Deborah A. Reheard, Eufaula
SUPREME COURT JUDICIAL DISTRICT 4
Glenn A. Devoll, Enid
Nominating Petitions have been filed nominating Deborah Reheard for election of President-Elect of the Oklahoma Bar Association
Board of Governors for a one-year term beginning January 1, 2010.
Nominating Petitions have been filed nominating Glenn A. Devoll for election to the Oklahoma Bar Association Board of Governors,
Supreme Court Judicial District No. 4 seat for a
three-year term beginning January 1, 2010.
Twenty-five of the names thereon are set forth
below:
A total of 509 signatures appear on the
petitions.
County Bar Resolutions Endorsing Nominee:
Comanche, Custer, Garvin, LeFlore, Love, McClain,
McCurtain, McIntosh, Muskogee, Ottawa, Pittsburg, Pontotoc, Rogers and Washington
Jon Ford, Timothy R. Traynor, James F. Long,
John H. Wynne, Randy J. Long, David Trojan,
Terri Blakley, Roger Johnston, Tim J. Crowley,
Michael R. Martin, Brian Lovell, Robert Faulk,
Jennifer Liggett, Randy Wagner, Cliff Elliott,
David Ezzell, Robert Patrick Anderson, Owen
P. Wilson, Gary Brown, Patrick T. Cornell,
Donna L. Dirickson, Roger W. Foster, Stephen
D. Beam, Bradley A. Gungoll and Douglas L.
Jackson.
A total of 54 signatures appear on the
petitions.
Vol. 80 — No. 18 — 7/11/2009
1485
Court of Criminal Appeals Opinions
2009 OK CR 20
TOMMY WAYNE LOVE, Appellant, v.
STATE OF OKLAHOMA, Appellee.
Case No. F-2008-236. June 30, 2009
OPINION
CHAPEL, JUDGE:
¶1 Tommy Wayne Love was tried by jury
and convicted of Count I, Trafficking in Controlled Drugs in violation of 63 O.S.Supp.2004,
§ 2-415(C), in the District Court of Tulsa County, CF-2006-5877.1 In accordance with the jury’s
recommendation the Honorable Gordon McAllister sentenced Love to twenty (20) years
imprisonment and a fine of $25,000, all but
$500 suspended. Love appeals from this conviction and sentence.
¶2 Love raises four propositions of error in
support of his appeal:
I. It was error for the District Court to refuse
Love’s requested jury instruction, which
gave the jury the option of either sentencing Love or permitting the court to do so;
II. The stop and search of Love’s vehicle violated Love’s right to be free from unreasonable search and seizure under both the
United States and Oklahoma Constitutions;
III. The evidence presented at trial was insufficient to support a conviction in Count III,
failure to signal; and
IV. Trafficking in controlled drugs as prohibited by 63 O.S.Supp.2004, § 2-415, is unconstitutional, because it purports to create a
non-rebuttable presumption of an intent to
distribute drugs, on a large scale, based
solely upon the quantity possessed.
¶3 After thorough consideration of the entire
record before us on appeal, including the original record, transcripts, exhibits and briefs, we
find that neither modification nor reversal is
required by the law or evidence. We find in
Proposition I that Love could not waive his
right to a jury trial without the consent of the
State.2 We further find that, although Love
attempted to waive a jury trial, he had no right
to unilaterally waive jury assessment of punishment.3 Consequently, the trial court did
1486
not err in refusing Love’s requested jury
instruction.4
¶4 We find in Proposition II that the traffic
stop was justified. The trial court’s factual findings in the Motion to Suppress, that Love failed
to signal a turn and other traffic may have been
affected by that failure, were not clearly erroneous.5 We further find that the search of Love’s
car was incident to a lawful arrest.6 We find in
Proposition III that, taking the evidence in the
light most favorable to the State, any rational
trier of fact could find beyond a reasonable
doubt that Love failed to signal before turning,
and that failure may have affected other
traffic.7
¶5 In Proposition IV Love claims that the
trafficking statute violates due process and
equal protection. Possession of five or more
grams of crack cocaine is prohibited as trafficking.8 Love claims this violates due process and
equal protection because it creates a non-rebuttable presumption, based solely on the amount
of drugs possessed, that the defendant is a
major drug dealer. This Court held in Anderson
v. State that the trafficking statute does not violate due process.9 In so finding, the Court specifically found that the statute did not create
any sort of a presumption that the defendant
sold or intended to sell drugs.10 In the same
vein, the statute does not presume that trafficking defendants are major drug dealers. As we
said in Anderson, “The statute merely sets forth
guidelines for punishment, and represents a
determination by the Legislature that “those
who possess [five or more grams of crack
cocaine] deserve a stiff punishment.”11
¶6 We will presume the validity of a state law
when analyzing an equal protection claim.12
Love must show the trafficking statute impermissibly interferes with his exercise of a fundamental right or operates to his disadvantage as
a member of a suspect class, or show that the
statute is not rationally related to a legitimate
state interest.13 Love does not suggest his case
requires strict scrutiny, but argues that there is
no legitimate state interest in enacting punishment based on possession of a quantity of
drugs as opposed to drug distribution. He
claims that equal protection is violated if the
statute merely provides for a harsher punish-
Vol. 80 — No. 18 — 7/11/2009
ment based on the amount in possession, without presuming that defendants intend to distribute the drugs, because persons guilty of
distribution of drugs may receive lesser penalties than persons who possess drugs in a certain quantity without proof of distribution. He
suggests that if the Legislature wants to enact a
harsh punishment for possession of large quantities of drugs, it should do so by incorporating
quantity requirements into the statute criminalizing possession with intent to distribute.
¶7 On its face this argument must fail. The
Legislature has a legitimate state interest in
punishing harshly those people who possess
large amounts of drugs. The decision to do this
by separately classifying persons who possess
specific amounts of drugs is reasonable, not
arbitrary, and the ground of difference — the
amount in possession — relates fairly and substantially to the object of the legislation.14 The
Legislature could have chosen to effect this
goal through a different statutory provision.
However, it is not constitutionally required to
do so. The Legislature has wide discretion to
pass laws which treat some people differently
from others.15 Its decision to do so in enacting
the trafficking statute does not violate equal
protection.
¶8 Love was originally charged after former
conviction of one felony. The state intended to
pass the preliminary hearing to add an allegation of a second prior offense to the second
page of the Information. Love indicated he
would accept a plea offer and waived preliminary hearing, then changed his mind about the
plea. The State later asked to have the case
remanded for preliminary hearing so they
could add a second offense to the second page,
but that request was denied. Although there is
no amended Information in the Original
Record, Love was not tried on the second page
of the Information. The Information as read to
the jury did not include an allegation of prior
convictions, no second stage was had, and the
jury was not instructed on the punishment
ranges if a prior conviction was present. However, the Judgment and Sentence states that
Love was convicted in Count I of Trafficking in
Illegal Drugs, “prior convictions.” We direct
the District Court to enter an Order Nunc Pro
Tunc correcting the Judgment and Sentence to
reflect Love’s actual conviction by removing
the reference to prior convictions.
Vol. 80 — No. 18 — 7/11/2009
Decision
¶9 The Judgment and Sentence of the District
Court is AFFIRMED. The case is REMANDED
to the District Court for an Order Nunc Pro
Tunc correcting the Judgment and Sentence to
reflect that Love was not convicted after conviction of a prior offense. Pursuant to Rule 3.15,
Rules of the Oklahoma Court of Criminal Appeals,
Title 22, Ch.18, App. (2009), the MANDATE is
ORDERED issued upon the delivery and filing
of this decision.
Attorneys at Trial
Curt Allen, Assistant Public Defender, Pythian
Building, 423 S. Boulder Ave. Suite 300, Tulsa,
Oklahoma 74103, Attorney for Defendant,
Courtney Smith, Assistant District Attorney,
Tulsa County Courthouse, 500 South Denver,
9th Floor, Tulsa, Oklahoma 74103, Attorney for
State.
Attorneys on Appeal
Stuart Southerland, Assistant Public Defender,
Pythian Building, 423 S. Boulder Ave. Suite
300, Tulsa, Oklahoma 74103, Attorney for Petitioner,
W.A. Drew Edmondson, Attorney General of
Oklahoma, Jennifer Blakeney Welch, Assistant
Attorney General, 313 N.E. 21st Street, Oklahoma City, Oklahoma 73105, Attorneys for
Respondent.
Opinion By: Chapel, J.; C. Johnson, P.J.: Concur; A. Johnson, V.P.J.: Concur; Lumpkin, J.:
Concur in Results; Lewis, J.: Concur
1. Love was convicted in non-jury proceedings of Count II, Driving
Under Suspension in violation of 47 O.S.Supp.2005, § 6-303, and Count
III, Failure to Signal in violation of 47 O.S.2001, § 11-604. The trial court
sentenced Love to a fine of $50 and costs on Count II and a fine of $10
and costs on Count III, with credit for time served on both counts so
neither fines nor costs were owed.
2. Valega v. City of Oklahoma City, 1988 OK CR 101, ¶ 5, 755 P.2d 118,
119; Crawford v. Brown, 1975 OK CR 114, ¶ 13, 536 P.2d 988, 990.
3. Morrison v. State, 1980 OK CR 74, ¶ 14, 619 P.2d 203, 209.; Case v.
State, 1976 OK CR 250, ¶ 28, 555 P.2d 619, 625; Reddell v. State, 1975 OK
CR 229, ¶ 33, 543 P.2d 574, 581-82. Following Crawford, Case also held
that any proposed waiver of jury assessment of punishment must be
joined by the prosecutor and trial court.
4. In addition, we will not find that the trial court erred in giving
the applicable uniform jury instruction, which accurately states the
law. 12 O.S.2001, § 577.2.
5. Seabolt v. State, 2006 OK CR 50, ¶ 5, 152 P.3d 235, 237; 47 O.S.2001,
§ 11-604.
6. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69
L.Ed.2d 768 (1981) (after lawful custodial arrest of an occupant of a car,
police may search passenger compartment incident to arrest); Nealy v.
State, 1981 OK CR 142, ¶ 11, 636 P.2d 378, 381.
7. Dodd v. State, 2004 OK CR 31, ¶ 80, 100 P.3d 1017, 1041-42. Count
III was not decided by the jury. The trial court, sitting as a fact-finder
on both misdemeanors, heard the evidence presented to the jury and
convicted Love of both Count II and Count III. Officer Warne testified
1487
that he was driving on the same road and saw Love turn without signaling. There was no opposing testimony.
8. 63 O.S.Supp.2004, § 2-415.
9. Anderson v. State, 1995 OK CR 63, ¶ 5, 905 P.2d 231, 233.
10. Id.
11. Id.
12. Hatch v. State, 1996 OK CR 37, ¶ 20, 924 P.2d 284, 289.
13. Hatch, 1996 OK CR 37, ¶ 21, 924 P.2d at 289; Clayton v. State, 1995
OK CR 3, ¶ 17, 892 P.2d 646, 654.
14. Hatch, 1996 OK CR 37, ¶ 21, 924 P.2d at 289; Crawford v. State,
1994 OK CR 58, ¶ 5, 881 P.2d 88, 90; City of New Orleans v. Dukes, 427
U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976). This Court has
held in unpublished Opinions that the trafficking statute does not
violate equal protection. See, e.g., Ezell v. State, No. F-2000-1543 (Okl.Cr.
January 11, 2002) (not for publication).
15. Tyler v. State, 1989 OK CR 31, ¶ 8, 777 P.2d 1352, 1354.
LUMPKIN, JUDGE: CONCUR IN RESULT
¶1 While I agree with the results reached by
the Court, I disagree with some of the analysis
and methodology.
¶2 I continue to adhere to my analysis in
Cannon v. State, 1995 OK CR 45, (Lumpkin Concur in Result) ¶ 2, 904 P.2d 89, 108 (citing Wainwright v. Witt, 469 U.S. 412, 422, 105 S.Ct. 844,
851, 83 L.Ed.2d 841 (1985)), that “while there
are exceptions, statements in footnotes are generally regarded as dicta, having no precedential
value.” I believe the Court should be clear that
its holding is shown as a holding in the body of
an opinion and not left to surmise by a reader
by placement in a footnote.
¶3 Further, jury determination of punishment is strictly a statutory right. See 22
O.S.2001, § 926.1. See also Romano v. State, 1993
OK CR 8, ¶¶ 68 & 71, 847 P.2d 368, 384-385
(state constitution does not address the role of
the jury in sentencing a defendant; the law and
procedure to be followed in sentencing a defendant is set out in § 926 [now § 926.1]). Thus the
language of the statute controls. See King v.
State, 2008 OK CR 13, ¶ 7, 182 P.3d 842, 844 (in
order to give effect to the Legislature’s expressed
intentions we construe statutes using the plain
and ordinary meaning of their language).
trial with the statutory right to sentencing. The
constitutional right to a jury trial, in which the
defendant and the State equally share, is limited to the right to have a jury determination of
guilt. See Okl. Const., Article II, Section 19. See
also Romano, 1993 OK CR 8, ¶¶ 69 - 70, 847 P.2d
at 385; Guindon v. State, 1981 OK CR 47, ¶¶ 4-6,
627 P.2d 449, 451. The statutory option for jury
sentencing is placed in the hands of the defendant and the trial judge, not the State, under
§ 926.1. Cases that merely state bald assertions
of a right by the State without citation to
authority cannot be authority for a principle of
law. The statutory language controls. Therefore, I urge the Court to return to the basics of
statutory construction and apply the plain language of the statute.
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¶4 The plain language of § 926.1 states that
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Vol. 80 — No. 18 — 7/11/2009
BAR NEWS
Suspended Members
Nonpayment of 2009 Dues
2009 OK 59
S.C.B.D. No. 5537
June 29, 2009
ORDER OF
SUSPENSION
This matter comes
on before this Court
for consideration of
the Recommendation
for Suspension for
Nonpayment of Dues
submitted by the
Board of Governors
of the Oklahoma Bar
Association, for suspension of members
from membership in
the Association and
from the practice of
law in the State of
Oklahoma, for failure
to pay their dues as
members of such
Association for the
year 2009, as provided by the Rules Creating and Controlling
the Oklahoma Bar
Association.
The Court having
considered said Recommendation finds
that the members of
the Oklahoma Bar
Association, named in
Exhibit A, attached
hereto, should be and
are hereby suspended
from membership in
Vol. 80 — No. 18 — 7/11/2009
the Association and
law in the State of
Oklahoma for failure
to pay membership
dues for the year
2009, as provided by
the Rules Creating
and Controlling the
Oklahoma Bar Association.
DONE BY ORDER
OF THE SUPREME
COURT IN CONFERENCE ON THIS 29TH
DAY OF JUNE, 2009.
/s/ James E.
Edmondson,
Chief Justice
Christopher Lee
Abernathy
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Vol. 80 — No. 18 — 7/11/2009
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OBA No. 19689
512 E. 32nd Street,
Ste. 206
P. O. Box 4021
Joplin, MO
64803-4021
Mark Ecton Pence
OBA No. 7015
1727 S. 140th East
Ave.
Tulsa, OK 74108
Jason Craig Pitcock
OBA No. 19911
3401 38th Street,
NW #203
Washington, DC
20016
Stephen D. Powell
OBA No. 7264
6107 Boca Raton
Dallas, TX 75230
Vol. 80 — No. 18 — 7/11/2009
Daniel Lee Rath
OBA No. 19550
2221 NW 46th St
Oklahoma City, OK
73112-8844
Ronald Edward
Reed
OBA No. 19551
639 Baer St.
Moore, OK 73160
Chad Robert
Reineke
OBA No. 20316
14313 N. May Ave.,
Suite 100
Oklahoma City, OK
73134
Steven Rudolph
Rodriguez
OBA No. 12838
P. O. Box 460738
San Antonio, TX
78246-0738
Michael Craig
Romig
OBA No. 7739
8809 S. 76th E. Ave.
Tulsa, OK 74133
Jon R. Running
OBA No. 7826
P. O. Box 190354
Dallas, TX 75219
Shideh Sharifi
OBA No. 18140
4811 West
Lovers Lane
Dallas, TX 75209
Gary Todd
Skidmore
OBA No. 16308
2662 S. Urbana Ave.
Tulsa, OK
74114-4847
Stephen Lance
Stratton
OBA No. 8682
P. O. Box 816
Blanchard, OK
73010-0816
Debra Stump
OBA No. 20547
1607 Mason Hill Dr.
Alexandria, VA
22307
Stephen Hume
Sturgeon Jr.
OBA No. 8725
11116 Hurdle
Hill Dr.
Potomac, MD 20854
Lynn Ellen
Szymoniak
OBA No. 8812
4371 Northlake
Boulevard, #366
Palm Beach
Gardens, FL
33410-6253
Earla Elizabeth Tate
OBA No. 15674
825 W. Main St.
Purcell, OK 73080
Machelle Yvonne
Thompson
OBA No. 19213
521 Vega Dr.
Columbia, SC
29223-5423
Kelly Finan
Tomlinson
OBA No. 22014
5455 Tibbs Rd.
Brownsville, TN
38012-7329
Andrew Raymond
Townsend
OBA No. 17409
1719 E. 71st St.
Tulsa, OK 74136
Dino E. Viera
OBA No. 11556
3330 Kingman St.,
Ste. 1
Metairie, LA 70006
Kaci Jo Walker
OBA No. 21856
155 S. Pennsylvania
St., Apt. 302
Denver, CO 80209
Gary Frank
Weltmann
OBA No. 21074
30 W. Gude Dr.,
Ste. 450
Rockville, MD 20850
Kirk A. Wheeler
OBA No. 9520
P. O. Box 1801
Largo, FL 33779
Che Brack Wilbur
OBA No. 20893
19201 Canyon
Creek Pl.
Edmond, OK
73012-3153
Rhett Henry
Wilburn
OBA No. 13127
14249 S. Glenn
Street
Glennpool, OK
74033
William P. Willis Jr.
OBA No. 9708
400 S. Muskogee
Ave.
Tahlequah, OK
74464-4428
Martha Kristen
Wray
OBA No. 15273
P. O. Box 1695
St. Francisville, LA
70775
Jon David Wyatt
OBA No. 18883
Tulsa, OK
1493
BAR NEWS
Suspended Members
Noncompliance with Mandatory Continuing Legal Education
Requirements for the Year 2008
2009 OK 60
S.C.B.D. No. 5538.
June 29, 2009
ORDER OF
SUSPENSION
This matter comes
on before this Court
for consideration of
the Recommendation
for Suspension submitted by the Board
of Governors of the
Oklahoma Bar Association, for suspension
of members from
membership in the
Association and from
the practice of law in
the State of Oklahoma, as provided by
the Rules of the
Supreme Court for
Mandatory Continuing Legal Education
for failure to comply
with such rules for the
year 2008.
And the Court, having considered said
Recommendation,
finds that each of the
members of the Oklahoma Bar Association
named on the Exhibit
A, attached hereto,
should be and are
hereby suspended
from membership in
the Association and
1494
law in the State of
Oklahoma, as provided by the Rules of the
Supreme Court for
Mandatory Continuing Legal Education,
for failure to comply
with such rules for the
year 2008.
DONE BY ORDER
OF THE SUPREME
COURT IN CONFERENCE ON THIS 29TH
DAY OF JUNE, 2009.
/s/ James E.
Edmondson,
Chief Justice
Christopher Lee
Abernathy
OBA No. 18913
3334 W. Main, Box 433
Norman, OK 73072
James Matthew
Branum
OBA No. 21087
RR 1, Box 525
Fort Cobb, OK 73038
Kelly L. Bratcher
OBA No. 16812
502 West Sixth Street
Tulsa, OK 74119
Michael Dwight
Brooking
OBA No. 20409
4350 Trinity Mills
Rd., #3201
Dallas, TX 75287
Cari Leigh Brown
OBA No. 16814
600 N. Grand
Tahlequah, OK 74464
Mitchell Kenneth
Coatney
OBA No. 21066
16 SW 170th Street
Oklahoma City, OK
73170
Todd Aeron Cole
OBA No. 17851
7232 E. 130th Street
Bixby, OK 74008
Nathan David
Corbett
OBA No. 21633
2623 Acacia Court
Norman, OK 73072
H. Buckmaster
Coyne Jr.
OBA No. 17252
1404 Evans Street
Morehead City, NC
28557 4028
Rosa Julia Draughon
OBA No. 13270
4205 N. Tomahawk
Dr.
Sand Springs, OK
74063
Robert Scot Erickson
OBA No. 11825
5330 E. 31st St., 5E1
Tulsa, OK 74135
Joseph Andrew
Flores
OBA No. 19658
917 S. Louisville Ave.
Tulsa, OK 74112
William Lee Ford
OBA No. 14951
204 W. Rose Drive
Midwest City, OK
73110
Jennifer Joy Gideon
OBA No. 18066
4810 Springridge Rd.,
Apt. 115
Enid, OK 73703
Thomas Christopher
Harris
OBA No. 20067
P. O. Box 6027
Tulsa, OK 74148
Joel A. Henderson
OBA No. 10328
5350 S. Western Ave.,
Ste. 606
Oklahoma City, OK
73109 4533
Todd Harvie Higgins
OBA No. 15787
P. O. Box 1942
D. Joel Hulett
OBA No. 10661
P. O. Box 52601
Tulsa, OK 74152
Anna Panter Johnson
OBA No. 20917
4935 S. Poplar Ave.
Broken Arrow, OK
74011-4233
Vol. 80 — No. 18 — 7/11/2009
Joseph John Jordan
OBA No. 19998
4113 Silverton Circle
Norman, OK 73072
Kim Kakish
OBA No. 11452
12408 Blue Sage Rd.
Oklahoma City, OK
73120
(THIS NAME
REMOVED
PURSUANT TO
ORDER NUNC
PRO TUNC
ENTERED
JULY 2, 2009)
John Randall Long
OBA No. 12379
625 NW 13th
Oklahoma City, OK
73103
Christopher R.
Martin
OBA No. 18764
1435 S. Carson Ave.
Tulsa, OK
74119-3417
Matthew Scott
Martin
OBA No. 18288
1752 E. 56th St.
Tulsa, OK 74105
Russell Wayne
McAdams
OBA No. 14893
P. O. Box 20860
Hot Springs, AR
71903
Trecia Annette
McElroy
OBA No. 18421
P. O. Box 1252
Jenks, OK 74037
1252
Anthony B.
McKesson
OBA No. 12776
5350 S. Western
Ave., Ste. 406
Oklahoma City, OK
73109
Vol. 80 — No. 18 — 7/11/2009
Jon W. McLanahan
OBA No. 12777
1366 E. 15th Street
Edmond, OK 73013
William Martin
McLaughlin
OBA No. 12779
1502 S. Main St.
Barton Casity
McSpadden
OBA No. 15162
1 N. Hudson Ave.,
Ste. 900
Oklahoma City, OK
73102
William Carroll
Mitchell
OBA No. 12143
1756 South Utica
Ave.
Tulsa, OK
74104-5336
Douglas Henry
Murphy
OBA No. 18787
1603 Center Lane
Muskogee, OK
74403
John Houston Nix
OBA No. 17956
1308 Preston Dr.
Sherman, TX
75092-5137
Dorothy C. Parker
OBA No. 13554
2966 Berwick
Claremore, OK
74017
Clinton Noel
Patterson
OBA No. 19689
512 E. 32nd Street,
Ste. 206
P. O. Box 4021
Joplin, MO
64803-4021
Nicole Jacqueline
Petty
OBA No. 19690
12531 E. 20th Pl.
Tulsa, OK 74128
Wilson Kirk
Pipestem
OBA No. 16877
1104 N.
Sycamore St.
Falls Church, VA
22046
Daniel Lee Rath
OBA No. 19550
2221 NW 46th St.
Oklahoma City, OK
73112 8844
Ronald Edward
Reed
OBA No. 19551
639 Baer St.
Moore, OK 73160
Julie Catherine Reid
OBA No. 19352
517 W. Redwood,
#2
Sallisaw, OK 74959
Jonna Lynn
Reynolds
OBA No. 21336
9432 East 51st Street
Tulsa, OK 74145
Douglas Neal Ritter
OBA No. 19698
1812 S. Willow Ave.
Broken Arrow, OK
74012
Michael Craig
Romig
OBA No. 7739
8809 S. 76th E. Ave.
Tulsa, OK 74133
David P. Rowland
OBA No. 7795
P. O. Box 1436
Bartlesville, OK
74005 1436
Emily Jay Seikel
OBA No. 21809
1106 NW 38th St.
Oklahoma City, OK
73118
Melissa Anne
Shomber
OBA No. 17137
2 E. 11th St., Ste. 119
Edmond, OK
73034-3989
Gary Todd
Skidmore
OBA No. 16308
2662 S. Urbana Ave.
Tulsa, OK
74114-4847
Dean Michael
Solberg
OBA No. 12490
5711 E. 71st St.,
Ste. 200
Tulsa, OK 74136
Stephen Lance
Stratton
OBA No. 8682
P. O. Box 816
Blanchard, OK
73010 0816
Thomas H.
Stringer Jr.
OBA No. 8698
502 W. Broadway
Henryetta, OK
74437
Andrew Raymond
Townsend
OBA No. 17409
1719 E. 71st St.
Tulsa, OK 74136
Che Brack Wilbur
OBA No. 20893
19201 Canyon
Creek Pl.
Edmond, OK
73012-3153
Rhett Henry
Wilburn
OBA No. 13127
14249 S. Glenn St.
Glennpool, OK
74033
William P. Willis Jr.
OBA No. 9708
400 S. Muskogee
Ave.
Tahlequah, OK
74464-4428
Jon David Wyatt
OBA No. 18883
Tulsa, OK
1495
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Wednesday June 24, 2009
F-2008-866 — Appellant Jerry Duane Hodges
was tried by jury and convicted of Trafficking
in Illegal Drugs (Methamphetamine) (Count I);
Unlawful Possession of a Controlled Drug
with Intent to Distribute (Marijuana) (Count
II); Unlawful Use of a Police Radio (Count III);
Possession of a Firearm while Committing a
Felony (Count IV) and Unlawful Use of a
Video Surveillance Equuipment in the Commision of a Felony (Count V), Case No. CF2004-284 in the District Court of Pittsburg
County. The jury recommended as punishment
twenty-five (25) years imprisonment and a
$25,000.00 fine in Count I; two (2) years imprisonment and a $5,000.00 fine in Count II, six (6)
months in jail in each of Counts III and V; and
two (2) years imprisonment in Count IV. The
trial court sentenced accordingly ordering the
sentences in Counts I, II, and IV to run consecutively and the sentences in Counts II and V
to run concurrent to Counts II and IV. It is from
this judgment and sentence that Appellant
apeals. AFFIRMED. Opinion by: Lumpkin, J.;
C. Johnson, P.J., concur; A. Johnson, V.P.J, concur; Chapel, J., concur in results; Lewis, J., concur in results.
F-2008-389 — Lee Edward Boyd, Appellant,
was tried by jury for the crimes of First Degree
Rape (Count 1), Lewd or Indecent Proposals or
Acts to Child under 16 (Counts 2, 3, 5, 6, and 9),
and Indecent Exposure (Count 8) in Case No.
CF-2007-53 in the District Court of Noble
County. The jury returned a verdict of guilty
and recommended as punishment 40 years
imprisonment on Count 1, 20 years imprisonment each on Counts 2, 3, and 6, one year
imprisonment on Count 5, five years imprisonment on Count 8, and 10 years imprisonment
on Count 9. The trial court sentenced accordingly and ordered the sentences on Counts 1, 2,
3, 5, and 6 to run concurrently and the sentences on Counts 8 and 9 to run concurrently
with each other, but consecutively to those
imposed in Counts 1, 2, 3, 5, and 6, for a total
term of 50 years imprisonment. From this judgment and sentence Lee Edward Boyd has perfected his appeal. The Judgment and Sentence
of the District Court is AFFIRMED. Opinion
1496
by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs;
Lumpkin, J., concurs; Chapel, J., concurs in
results; Lewis, J., concurs.
RE-2008-703 — Appellant, Carla Marie
Triplett, entered pleas of guilty to Count 1 –
Possession of Controlled Substance and Count
2 – Contributing to the Delinquency of Minors
in Creek County District Court Case No. CF2004-428 and to Intimidation of Witness in
Creek County District Court Case No. CF-204558. Appellant had eight prior felony convictions. In CF-2004-428 she was sentenced to
forty-five years suspended and a suspended
$10,000.00 fine on Count 1 and one year suspended and a $1,000.00 fine on Count 2. In CF2004-558 Appellant was sentenced to forty-five
years suspended and a $10,000.00 suspended
fine. This sentence was ordered to run consecutively with CF-2004-428. On January 16, 2008,
the State filed a motion to revoke Appellant’s
suspended sentences. Following a revocation
hearing July 8, 2008, at which Appellant stipulated to the State’s allegations, the Honorable
Douglas W. Golden, District Judge, revoked
thirty years of Appellant’s forty-five year sentence in each case and ordered the sentences to
run consecutively. Appellant appeals from the
revocation of her suspended sentences. By
Order issued December 8, 2008, RE 2008-0702
(District Court Case No. CF-2004-558) and RE
2008-0703 (District Court Case No CF-2004428) were consolidated into RE 2008-0703. The
revocation of Appellant’s suspended sentences
is AFFIRMED. Opinion by: Johnson, P.J.; A.
Johnson, V.P.J., concur; Lumpkin, J., concur;
Chapel, J., concur; Lewis, J., concur in result.
F-2008-556 — Earnest Dean Phillips, Appellant, was tried by jury and found guilty of rape
in the first degree after two (2) or more felony
convictions, in violation of 21 O.S.2001 §§ 1111,
1114, in Oklahoma County District Court, Case
No. CF-2007-5728. The jury sentenced Appellant to thirty five (35) years imprisonment. The
Honorable Ray C. Elliott, District Judge,
imposed judgment and sentence according to
the jury verdict, ordering the sentence to run
consecutively with an unrelated prison sentence. The trial court sentenced accordingly.
From this judgment and sentence, Earnest Dean
Phillips has perfected his appeal. AFFIRMED.
Vol. 80 — No. 18 — 7/11/2009
Opinion by: Lewis, J.; C. Johnson, P.J., Concurs;
A. Johnson, V.P.J., Concurs in Results; Lumpkin, J., Concurs; Chapel, J., Concurs.
C-2008-1103 — Petitioner, J. C. Crase, entered
a no contest plea to the crime of child abuse in
violation of 10 O.S.Supp.2006, § 7115(A), in
Garfield County District Court, Case No. CF2007-631, before the Honorable Dennis W. Hladik, District Judge. At the time Crase entered
the plea, there was no agreement from the State
as to what sentence he would receive; however,
after the plea was entered and before sentencing, the State and Petitioner agreed to a twenty-five (25) year sentence. The trial court
accepted that agreement and sentenced Crase
to twenty-five years imprisonment. Petitioner
withdrew his plea before and after the court
sentencing. From this judgment and sentence,
J. C. Crase has perfected his appeal. Crase’s
petition for a writ of certiorari is DENIED, and
the trial court’s order denying Crase’s motion
to withdraw plea is AFFIRMED. Opinion by:
Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson,
V.P.J., Concurs in Results; Lumpkin, J., Concurs; Chapel, J., Concurs.
F-2008-10 — Christopher Jerome Tarver,
Appellant, was tried by jury for the crime of
Murder in the First Degree in Case No. CF2006-5408 in the District Court of Tulsa County.
The jury returned a verdict of guilty and recommended as punishment life imprisonment.
The trial court sentenced accordingly. From
this judgment and sentence Christopher Jerome
Tarver has perfected his appeal. The Judgment
and Sentence of the District Court is AFFIRMED.
Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J.,
concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs.
F-2008-97 — Kristie Kay Thompson, Appellant, was tried by jury for the crime of Child
Neglect in Case No. CF-2007-126 in the District
Court of Stephens County. The jury returned a
verdict of guilty and recommended as punishment six months in the county jail. The trial
court sentenced accordingly. From this judgment and sentence Kristie Kay Thompson has
perfected her appeal. REVERSED WITH
INSTRUCTIONS TO DISMISS. Opinion by: C.
Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur; Lewis, J.,
Concur.
F-2008-62 — Appellant, Derrick Dewayne
Greggs, was tried by jury in the District Court
of Tulsa County, Case Number CF-2005-4894,
and convicted of First Degree Murder (Count
Vol. 80 — No. 18 — 7/11/2009
I), Attempted Robbery with a Firearm (Count
II), and Possession of a Firearm After Former
Felony Conviction (Count III). The jury set
punishment at life imprisonment on Count I,
eighteen (18) years imprisonment on Count II,
and ten (10) years imprisonment on Count III.
The trial judge sentenced Appellant in accordance with the jury’s determination and
ordered the sentences to run consecutively.
Appellant now appeals his convictions and
sentences. AFFIRMED. Opinion by: Lumpkin,
J.; C. Johnson, P.J., Concur in Results; A. Johnson, V.P.J., Concur; Chapel, J., Concur in Results;
Lewis, J., Concur in Results.
Thursday June 25, 2009
F-2008-1004 — Appellant, Jay Thermon
Crowder, was tried by jury in the District Court
of Pushmataha County, Case Number CF-200845, and convicted of Child Abuse, after two or
more prior felony convictions. The jury set
punishment at thirty (30) years imprisonment.
The trial judge sentenced Appellant in accordance with the jury’s determination, but suspended fifteen years of Appellant’s sentence.
Appellant now appeals his convictions and
sentences. AFFIRMED. Opinion by: Lumpkin,
J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J.,
Concur; Chapel, J., Concur in Result; Lewis, J.,
Concur.
Friday June 26, 2009
F-2008-32 — Farron Whitney Alberty, Appellant, was tried by jury for the crime of First
Degree Murder in Case No. CF-2005-2323, in
the District Court of Tulsa County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment without the
possibility of parole. The trial court sentenced
accordingly. From this judgment and sentence
Farron Whitney Alberty has perfected his
appeal. AFFIRMED. Opinion by: Chapel, J.; C.
Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Part/Dissent in
Part; Lewis, J., Concur in Results.
F-2007-1154 — Blake Edward Hart, Appellant, was tried by jury in Case No. CF-20042406 in the District Court of Oklahoma County,
of seven counts of Sexual Abuse of a Child
(Counts 1-7); one count of Possession of Child
Pornography (Count 10); one count of Falsely
Reporting a Crime (Count 11); and one count of
Using Electronic Equipment in a Clandestine
Manner. The jury returned a verdict of guilty
and recommended punishment as follows:
Count 1, 50 years and a $5000 fine; Counts 2
through 7, ten years and a $5000 fine; Count 10,
1497
five years and a $5000 fine; Count 11, 90 days
in the county jail and a $500 fine; and Count 12,
five years and a $5000 fine. The trial court sentenced accordingly ordering all sentences to be
consecutively to one another, except Count 11,
which was ordered to run concurrently with
the other charges. From this judgment and sentence Blake Edward Hart has perfected his
appeal. AFFIRMED. Opinion by: C. Johnson,
P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J.,
Concur; Chapel, J., Concur in Part/Dissent in
Part; Lewis, J., Concur.
F-2008-438 — Marcus Laquine Petty, Appellant, was tried by jury for the crimes of Assault
and Battery with a Dangerous Weapon (Count
1) and Domestic Assault and Battery (Count 2)
in Case No. CF-2007-4081 in the District Court
of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment three years imprisonment on Count 1
and six months imprisonment on Count 2. The
trial court sentenced accordingly. From this
judgment and sentence Marcus Laquine Petty
has perfected his appeal. The Judgment and
Sentence of the District Court is AFFIRMED.
Petty’s $5,000 Victim’s Compensation Assessment is VACATED and the matter is REMANDED to the District Court for a hearing in which
all of the required factors will be considered in
assessing a Victim’s Compensation Assessment
in this matter. Opinion by: A. Johnson, V.P.J.; C.
Johnson, P.J., concurs; Lumpkin, J., concurs in
results; Chapel, J., concurs in part and dissents
in part; Lewis, J., concurs in part and dissents
in part.
Tuesday June 30, 2009
F-2008-224 — Antoine Devon Colbert, Appellant, was tried by jury for the crimes of Trafficking in Illegal Drugs (Cocaine and Cocaine
Base)( Count I), Unlawful Possession of Controlled Drug (Methamphetamine) With Intent
to Distribute (Count III), Unlawful Possession
of Controlled Drug (Marijuana and Ecstacy)
(Count V), Failure to Obtain Tax Stamp (Count
VI), and Possession of a Firearm (Count VII),
all after former conviction of a felony in Case
No. CF-2007-1348, in the District Court of Tulsa
and recommended as punishment Life imprisonment without the possibility of parole on
Count I, forty (40) years imprisonment on
Count III, four (4) years imprisonment on each
of Counts V and VI, and forty (40) years
imprisonment on Count VII, with sentences to
run consecutively. The trial court sentenced
1498
Antoine Devon Colbert has perfected his
appeal. AFFIRMED. Opinion by: Chapel, J.; C.
Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.
F-2008-168 — Appellant, Randy Loyd Gray,
Sr., was convicted of several counts and sentenced on each as enumerated below after a
jury trial before the Honorable James R. Pratt,
Associate District Judge, in Pittsburg County
District Court case No. CF-2006-242: 1. Forcible
oral sodomy, 21 O.S.Sup.2002, § 886; twenty
(20) years imprisonment; 2. Lewd or indecent
proposals or acts to a child, 21 O.S.Supp.2003 §
1123(A)(1); five (5) years imprisonment.; 3.
Lewd display of pornography to a child, 21
O.S.Supp.2003 § 1021; ten (10) years imprisonment; 4. First degree rape by instrumentation,
21 O.S.2001, § 1114; thirty (30) years imprisonment; 5. Lewd display of pornography to a
child, 21 O.S.Supp.2003 § 1021; fifteen (15)
years imprisonment; 6. Lewd molestation, 21
O.S.Supp.2003 § 1123; twenty (20) years imprisonment. The sentences for counts one, four,
and six were ordered to run consecutively, the
sentences in the remaining counts were ordered
to run concurrently with the sentence in count
four. From this judgment and sentence, Randy
Loyd Gray, Sr., has perfected his appeal. The
judgments and sentences of the District Court
shall be AFFIRMED, and Appellant’s Application for an evidentiary hearing is DENIED.
Opinion by: Lewis, J.; C. Johnson, P.J., concurs;
A. Johnson, V.P.J., concurs in results; Lumpkin,
J., concurs; Chapel, J., dissents.
Wednesday July 1, 2009
F-2008-772 — Appellant Michael James Matthews pleaded guilty to Delivery of Marijuana
(63 O.S. 2001, § 2-401) in the District Court of
Custer County, Case No. CF-2003-275, and was
sentenced to five (5) years imprisonment, with
all but the first two years suspended. He also
pled guilty to two counts of Uttering a Forged
Instrument, After Former Conviction of Two or
More Felonies, in the District Court of Custer
County, Case No. CF-2004-17 and was sentenced to concurrent sentences of eight (8)
years imprisonment, with all but the first two
years suspended.
On May 31, 2007, Appellant was charged
with another case of Uttering a Forged Instrument in the District Court of Custer County,
Case No. CF-2007-206. On September 17, 2007,
Appellant pled guilty to the new charge and
stipulated to the revocations in his 2003 and
2004 cases. The trial court accepted the plea
and stipulations, but withheld sentencing upon
Vol. 80 — No. 18 — 7/11/2009
diverting the three cases to the Drug Court
Program (“Drug Court”). On July 1, 2008, the
State filed an Application to Terminate Drug
Court Participation in all three cases. On July
31, 2008, the State filed an Amended Application to Terminate in each case. At an August 4,
2008, hearing, the district court terminated
Appellant’s participation in Drug Court,
revoked his suspended sentences in CF-2003275 and CF-2004-17, and sentenced Appellant
in CF-2007-206.
Pursuant to plea agreements reached at the
September 17, 2007, hearing in which Appellant’s cases were diverted to Drug Court, the
balance of his two year suspended sentence in
the 2003 case and the two six-year sentences in
the 2004 case were revoked in full and they
were ordered to run consecutively with the
nineteen (19) year sentenced imposed in the
2007 case. It is from these judgments and sentences that Appellant appeals. AFFIRMED.
Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Chapel, J., concur; Lewis, J., concur.
Thursday, July 2, 2009
F-2008-871 — Appellant, Tyre Williams, was
tried by jury in the District Court of Oklahoma
County, Case Number CF-2007-2743, and convicted of Assault and Battery with a Dangerous
Weapon. The jury set punishment at five (5)
years imprisonment. The trial judge sentenced
Appellant in accordance with the jury’s determination, along with restitution of $4,000.00.
Appellant now appeals his conviction and sentence. AFFIRMED. Opinion by: Lumpkin, J.; C.
Johnson, P.J., concur; A. Johnson, V.P.J., concur;
Chapel, J., concur; Lewis, J., concur.
F-2008-267 — Lynn Daven Atkinson, Appellant, was tried by jury for the crime of Assault
and Battery with a Dangerous Weapon after
former conviction of one felony in Case No.
CF-2007-45, in the District Court of Kiowa
and recommended as punishment ten (10)
years imprisonment. The trial court sentenced
Lynn Daven Atkinson has perfected his appeal.
AFFIRMED. Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur;
Lumpkin, J., Concur; Lewis, J., Concur.
ACCELERATED DOCKET
J-2008-645 — The Appellant, M.E.P., appealed
to this Court from an order entered by the Honorable Curtis L. DeLapp, District Judge, during
Vol. 80 — No. 18 — 7/11/2009
proceedings adjudicating Appellant delinquent
for the offense of Negligent Homicide – Motor
Vehicle in Case No. JDL-2006-193 in the District
Court of Washington County. AFFIRMED.
Opinion by A. Johnson, V. P. J.; C. Johnson, P.J.,
concur; Lumpkin, J., concur; Chapel, J., dissent;
Lewis, J., concur.
(Division No. 1)
Thursday, June 25, 2009
105,787 — State of Oklahoma ex rel., Department of Transportation, Plaintiff/Appellant, vs.
Bobby D. Moore, d/b/a BOBM3 Corporation,
Defendant/Appellee, and Byllie D. McGill and
Marcie L. McGill, Husband and Wife; Arvest
Bank, f/k/a Victory National Bank; David
Addingly and The Rogers County Treasurer,
Defendants. Appeal from the District Court of
Rogers County, Oklahoma. Honorable L. Joe
Smith, Judge. In this condemnation action,
Appellant (ODOT) appeals the trial court’s
order denying its motion to tax costs against
Appellee (BobM3). ODOT sought an award of
litigation costs pursuant to 69 O.S. 2001
§1203(e)(1), because Appellee demanded a jury
trial and received a verdict of $16,934.00, which
was less than just compensation assessed by the
court-appointed commissioners in the amount
of $21,500.00. After reviewing the relevant case
law and statutory authority, we hold ODOT’s
court reporter fees and copying expenses qualify as costs under §1203(e)(1). We also hold
ODOT was entitled to recover from Appellee,
as costs, the fees ODOT paid to its expert witness for the time such expert spent preparing
for and responding to Appellee’s discovery
efforts. The trial court’s denial of ODOT’s
motion to tax expert witness fees is therefore
reversed as to those expert witness fees and this
matter is remanded to the trial court. In all
other respects, the trial court’s denial of ODOT’s
motion to tax expert witness fees is affirmed.
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED. Opinion by Bell, P.J.;
Adams, J., and Buettner, J., concur.
106,084 — James Temple, Petitioner, vs. Decor
Service Company, CompSource Oklahoma, and
The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a
Three-Judge Panel of The Workers’ Compensation Court. Petitioner James Temple seeks
review of an order of a three-judge panel which
affirmed the trial court’s order dismissing Temple’s claim for compensation. Temple claimed
he was injured in the course and scope of
employment after he fell through a sky light
1499
while estimating the cost of a new roof. Respondent Decor Service Company denied the claim,
asserting that Temple was not covered by the
Workers’ Compensation Act because he was an
independent contractor. The trial court and the
panel agreed with Decor. On de novo review, we
sustain the panel’s order. SUSTAINED. Opinion by Buettner, J.; Bell, P.J., and Adams, J.,
concur.
106,355 — Miller-Jackson Company, Inc.,
Plaintiff/Appellee, vs. Youseff Saadi and Fayez
Saadi, Defendants/Appellants. Appeal from
the District Court of Oklahoma County, Oklahoma. Honorable Bryan C. Dixon, Trial Judge.
Youseff Saadi and Fayez Saadi (Tenants) appeal
a trial court order denying their motion to
vacate a judgment granting the motion for
summary judgment filed by Miller-Jackson
Company, Inc. in its action against Tenants for
breach of a lease. Giving due consideration to
all the factors required in American Bank of Commerce v. Chavis, 1982 OK 66, 651 P.2d 1321,
which are applicable under these circumstances, we cannot conclude the trial court abused its
discretion in refusing to vacate the judgment.
The trial court’s order is affirmed. AFFIRMED.
Opinion by Adams, J.; Bell, P.J., and Buettner, J.,
concur.
Wednesday, July 1, 2009
105,455 — Source Rock Energy Partners, L.
L.C., Plaintiff/Appellant, vs. Tag Team Resources, L.L.C. and Tom Nuding, Defendants/
Appellees, Consolidated with: Tag Team
Resources, L.L.C., and Mako Resources, L.L.C.,
Plaintiffs, vs. Source Rock Energy Partners, L.
L.C., Defendant. Appeal from the District Court
of Tulsa County, Oklahoma. Honorable Michael
Gassett, Judge. In Plaintiff/Appellant Source
Rock Energy Partners, LLC’s (Source Rock)
First Amended Petition, filed January 10, 2006,
it alleged that Defendants/Appellees Tag Team
Resources, LLC (TAG Team) and its owner,
Tom Nuding, breached an oil field engineering
and consulting services contract the parties
entered October 25, 2003. Source Rock further
sought a quantum meruit remedy, an accounting, a declaratory judgment, and claimed a
fraudulent transfer of assets. Source Rock
demanded a jury trial on the breach of contract
action. TAG Team counter-claimed for damages it asserted resulted from intentional interference with business relations. On motions, the
trial court directed verdict on Source Rock’s
claims for quantum meruit and breach of contract. The jury returned a verdict in favor of
Source Rock on TAG Team’s claim for intentional interference with business relations. TAG
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Team thereafter submitted a Motion for Judgment on Source Rock’s remaining claims, which
the trial court granted. Source Rock appeals the
granting of the directed verdict and the motion
for judgment. AFFIRMED. Opinion by Buettner,
J.; Bell, P.J., and Adams, J., concur.
105,904 — Michael Carpenter, Individually
and as Parent and Next Friend of Alexis Carpenter, a minor, and as Personal Representative
of the Estate of Tracy Lynn Carpenter, Deceased,
Plaintiff/Appellant, vs. Kenneth Scott Pitt,
Defendant/Appellee, and Traders Insurance
Company, Intervenor/Appellee. Appeal from
the District Court of Cleveland County, Oklahoma. Honorable William C. Hetherington, Jr.,
Judge. Plaintiff/Appellant Michael Carpenter,
individually and as next friend of Alexis Carpenter and as Personal Representative of the
Estate of Tracy Lynn Carpenter, filed this personal injury and wrongful death case against
Defendant/Appellee Kenneth Scott Pitt, seeking damages incurred in a vehicle collision. In
an interlocutory proceeding, the trial court
granted Intervenor Traders Insurance Company’s motion to pay Pitt’s insurance policy benefits into the court to be credited against a restitution order entered against Pitt in the criminal case arising out of the same incident. The
trial court’s interlocutory order is against the
weight of the evidence and we reverse and
remand for further proceedings consistent with
this decision. REVERSED AND REMANDED.
Opinion by Buettner, J.; Bell, P.J., and Adams, J.,
concur.
105,921 — In the Matter of the Estate of Ruth
E. Fleming, Deceased. Mary Fleming, Appellant, vs. William Jeffrey Fleming, Jerry Douglas
Fleming, and Karen Janell Smith, Appellees.
Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Larry Jones,
Judge. On January 7, 2008, Larry A. Morgan,
attorney for Appellees William Jeffrey Fleming,
Jerry Douglas Fleming, and Karen Janell Smith
(Appellees), filed an Application to Assess
Attorney Fees and Costs pursuant to 58
O.S.2001 §66, “Costs of contest,” against will
contestant/Appellant Mary Fleming (Mary).
Mary and Appellees are siblings, and the decedent, Ruth E. Fleming, was their mother. The
trial court granted judgment in favor of Appellees in the total amount of $12,735.10. Mary
filed a Motion to Reconsider which was overruled April 30, 2008. We affirm. AFFIRMED.
Opinion by Buettner, J.; Bell, P.J., and Adams, J.,
concur.
106,260 — The City of Broken Arrow, Plaintiff/Appellee, vs. Tag Outdoor Advertising, L.
Vol. 80 — No. 18 — 7/11/2009
L.C., an Oklahoma Limited Liability Company,
Defendant/Appellant, and Gleneagles Corporation, an Oklahoma Limited Liability Company; Glen Eagle, L.L.C., an Oklahoma Limited
Liability Company; Vantage Point Properties,
LP, an Oklahoma Limited Partnership; Vantage
Point Developers, L.L.C., an Oklahoma Limited Liability Company; and Rose Garden
Estates, L.L.C., an Arizona Limited Liability
Company, Defendants. Appeal from the District Court of Wagoner County, Oklahoma.
Honorable Bruce Sewell, Judge. Appellant
(TAG) appeals from the trial court’s order
granting summary judgment to Appellee (Ci
ty) in City’s action to enforce its zoning and
building laws regulating signs. The court held
Tag’s billboards were constructed and remain
in violation of City’s zoning code, building
codes and ordinances; the signs constitute public nuisances; and enforcement of codes and
ordinances does not constitute a taking without just compensation in this case. Summary
judgment is proper when the evidentiary materials establish that there is no genuine issue as
to any material fact, and that the moving party
is entitled to judgment as a matter of law. After
de novo review of the record, we hold there
exists no genuine issue of material fact and
City is entitled to judgment as a matter of law.
Accordingly, the judgment of the trial court is
AFFIRMED. Opinion by Bell, P.J.; Adams, J.,
and Buettner, J., concur.
106,608 — Frankie R. Pales, Petitioner, vs.
Cherokee Nation Enterprises, Hudson Insurance Company, and The Oklahoma Workers’
Compensation Court, Respondents. Proceeding to Review an Order The Workers’ Compensation Court. Honorable Michael J. Harkey,
Trial Judge. Petitioner Frankie R. Pales seeks
review of an order of the Workers’ Compensation Court which dismissed Pales’s claim for
compensation based on lack of jurisdiction.
The trial court held that Respondent Cherokee
Nation Enterprises (Employer) is an entity of
the sovereign Cherokee Nation which has
enacted its own workers’ compensation laws,
and that Respondent Hudson Insurance Company had issued a policy of workers’ compensation insurance pursuant to tribal law. The
trial court found Employer was entitled to
immunity as a sovereign tribe with its own
workers’ compensation protections and therefore dismissed Pales’s claim. We SUSTAIN.
Opinion by Buettner, J.; Bell, P.J., concurs in
result, and Adams, J., concurs.
106,713 — Christina Blomquist, individually
and on behalf of her daughter, Alexis Anderson,
Vol. 80 — No. 18 — 7/11/2009
a minor, Plaintiff/Appellant, vs. Doyle Latimer,
an individual, and Cindy Latimer, an individual,
Defendants/Appellees, and Jason Anderson, an
individual, Dana Anderson (f/k/a Latimer), an
individual, and Latimer Trucking, a business,
Comanche County, Oklahoma. Honorable Keith
Byron Aycock, Judge. Plaintiff/Appellant Christina Blomquist, on behalf of her 4-year old
daughter Alexis (Ali), filed a petition for damages against premises owners Defendants/
Appellees Doyle and Cindy Latimer (the Latimers), alleging Ali’s injury was caused by a failure
to warn of a known danger. Under the direct
supervision of her father, Ali was permitted to
operate a four-wheeler around a track on the
Latimer’s property. She lost control of the vehicle, ran off the track, and hit a barbed wire fence,
incurring injury. The trial court granted summary judgment in favor of the Latimers, and
certified that judgment against those two defendants as a final, appealable order. We affirm.
AFFIRMED. Opinion by Buettner, J.; Bell, P.J.,
and Adams, J., concur.
Tuesday, July 7, 2009
106,628 — In the Matter of R.H. and D.H.,
Alleged Deprived Children: Raymond Huddleston, Appellant, vs. The State of Oklahoma,
Appellee. Appeal from the District Court of
Cleveland County, Oklahoma. Honorable Stephen J. Bonner, Judge. Appellant (Father)
appeals the trial court’s order terminating his
parental rights to his two minor children.
Appellee (State) filed a petition alleging the
children were deprived because they were
without proper care or supervision and Father
failed to protect them and exposed them to
threat of harm, substance abuse and domestic
violence. Father has a lengthy history of criminal behavior involving drugs, domestic violence and theft. He was arrested twice in the
presence of one of the children and was incarcerated on two occasions during this proceeding. The trial court terminated Father’s rights
pursuant to O.S. 2001 §7006-1.1(A)(5) and
§7006-1.1(A)(15). We hold the trial court’s judgment is supported by clear and convincing
evidence. AFFIRMED. Opinion by Bell, P.J.;
Adams, J., concurs in result, and Buettner, J.,
concurs.
(Division No. 2)
106,687 — Justin B. Keeler and Jill S. Keeler,
Plaintiffs/Appellants, v. GMAC Global Relocation Services, Defendant/Appellee. Appeal
from the District Court of Washington County,
1501
Hon. Russell C. Vaclaw, Trial Judge. Review of
the trial court’s grant of summary judgment in
favor of GMAC. AFFIRMED. Opinion from
Court of Civil Appeals, Division II, by Barnes,
P.J.; Wiseman, V.C.J., and Goodman, J., concur.
106,296 — Roy A. Pitts, Plaintiff/Appellant,
v. West American Insurance Company, Defendant/Appellee. Appeal from an order of the
District Court of Oklahoma County, Hon. Bryan
C. Dixon, Trial Judge, granting summary judgment in favor of Defendant on Plaintiff’s bad
faith claim. Plaintiff’s car sustained damages in
a multi-vehicle collision. Plaintiff’s vehicle was
a total loss and Defendant paid to replace
Plaintiff’s vehicle with another 2005 Kia Spectra5. According to Plaintiff, the purchase price
of his vehicle included a “factory basic 60,000
mile warranty and a 100,000 mile powertrain
warranty.” Although Plaintiff’s claim included
the loss of his powertrain warranty, Defendant
denied Plaintiff’s claim for the warranty.
Because Defendant refused to pay for the value
of the powertrain warranty, Plaintiff sued for
breach of contract and bad faith. The trial court
granted summary judgment for Defendant on
the bad faith claim. Plaintiff’s lawsuit against
Defendant arises out of a policy coverage dispute — i.e., whether Plaintiff’s policy with
Defendant covering the loss of this vehicle
requires Defendant to compensate Plaintiff for
the value of the powertrain warranty. Plaintiff
argues Defendant did not have a reasonable
basis to withhold compensation for the powertrain warranty. Based on our examination of
the record submitted, the conduct cited by
Plaintiff cannot be viewed as unreasonable and
in bad faith. Defendant has a legitimate dispute with Plaintiff over what is covered in this
claim under this policy. Defendant’s conduct in
disputing coverage for the powertrain warranty did not amount to bad faith or a breach
of duty to act in good faith and deal fairly with
Plaintiff. AFFIRMED. Opinion from the Court
of Civil Appeals, Division II, by Wiseman,
V.C.J.; Barnes, P.J., and Goodman, J., concur.
106,701 — Liberty Mutual Insurance Corporation and Idleaire Technologies Corporation,
Petitioners, v. Michael John Geniuk and The
Workers’ Compensation Court, Respondents.
Proceeding to review an Order of a ThreeJudge Panel of The Workers’ Compensation
Court, Hon. John Michael McCormick, Trial
Judge. The en banc panel, rejecting the employer’s argument that the employee’s reinjury was
the result of an independent, intervening cause,
1502
found competent evidence that the employee
sustained a compensable, consequential injury
to his workplace-injured knee when he reinjured it while on a personal shopping trip.
SUSTAINED. Opinion from Court of Civil
Appeals, Division II, by Barnes, P.J.; Goodman,
J., concurs, and Wiseman, V.C.J., dissents.
105,889 — In the Matter of A.F., An Alleged
Deprived Child. Samantha Frank and Charles
Frank, Appellants, vs. State of Oklahoma,
Appellee. Appeal from orders of the District
Court of Cleveland County, Hon. Stephen Bonner, Trial Judge, terminating Mother’s and
Father’s parental rights to AF. The issues presented are whether the trial court erred (1) in
considering the testimony of Dr. Ward, (2) in
overruling Mother’s and Father’s request to
disregard Dr. Ward’s testimony as being unreliable, (3) in ordering Mother and Father to
undergo a psychological evaluation over their
counsels’ objection, and (4) in terminating
Mother’s and Father’s parental rights because
the court did not find a threat of harm to AF.
We find that the State of Oklahoma met its burden of proof and affirm the orders of the trial
court. Mother asserts that Dr. Ward failed to
ascertain what medications Mother was taking,
and that, if he had, his testimony and/or evaluations would still be unreliable because the
knowledge of which medication might affect
Mother’s cognitive ability was beyond the
scope of his practice. Dr. Ward’s opinion was
based primarily on his finding of Mother’s
mental deficiency rather than her mental illness, and we find no abuse of discretion by the
trial court in admitting Dr. Ward’s testimony
and evaluation. Mother and Father also contend that the trial court erred in allowing Dr.
Ward to testify because he obtained an invalid
release from the parents to allow him to release
information to DHS. The record shows that Dr.
Ward went over the consent form verbally with
the parents using simple language that both
could understand. Mother and Father have not
shown how Dr. Ward’s verbal explanation was
unreliable, nor have they demonstrated how
the trial court abused its discretion by allowing
Dr. Ward’s testimony. We further find that the
trial court did not err in ordering a psychological evaluation of both parents. State presented
clear and convincing evidence meeting all of
the required elements of 10 O.S.2001 § 70061.1(A)(13). For these reasons, the trial court’s
orders terminating Mother’s and Father’s
parental rights are affirmed. AFFIRMED. Opinion from the Court of Civil Appeals, Division
Vol. 80 — No. 18 — 7/11/2009
II, by WISEMAN, V.C.J.; BARNES, P.J., and
GOODMAN, J., concur.
(Division No. 3)
Friday, June 26, 2009
105,135 — J. Paul Meyer, Plaintiff/Appellant
vs. Barbara E. Meyer, Defendant/Appellee.
Appeal from the District Court of Garfield
County, Oklahoma. Honorable Paul K. Woodward, Trial Judge. Appellant (Husband) filed a
Motion to Correct Error in Divorce DecreeNunc Pro Tunc, regarding the division of his
military retirement. The court found the language used in the Decree to be ambiguous to
the point the Defense Finance and Accounting
Service Office has refused to issue payments to
Appellee (Wife). The court’s order adopted
those retirement points suggested by Service in
its letter which was written years after the
Decree was filed. The court declined to correct
the Decree in the manner Husband suggested.
Husband appeals this order. Service’s suggestion that awards based on formulas which
divide military pensions according to points
was not considered or decided at the time of
the trial court’s ruling on the military pension.
This matter is reversed and remanded with
directions to delete that portion of the Order
Granting in Part and Denying in Part Husband’s Motion to Correct Error in Divorce
Decree-Nunc Pro Tunc in paragraph 10. The
trial court is further instructed to amend the
remaining portion of paragraph 10 by adding
the following statement: “Defendant is awarded 30% of Plaintiff’s disposable military retired
pay which accrued during the marriage.”
REVERSED AND REMANDED WITH DIRECTIONS. Opinion by Hansen, P.J.; Buettner, J.
(sitting by designation), concurs, and Joplin, J.,
dissents.
106,271 — Quorum Condominium Owner’s
Association, Inc., Plaintiff/Appellee, vs. Noel
Morris and Kathy Morris, Defendants/Appellants. Appeal from the District Court of Cleveland County, Oklahoma. Honorable William C.
Hetherington, Jr., Judge. In 2003, Appellants,
Noel and Kathy Morris, purchased seven condominiums from Beth Ann Taylor, located in
the Quorum Condominium complex. The units
conveyed by Taylor to Appellants were encumbered by mortgages and Appellants claimed in
a related district court proceeding that they
were victims of Taylor’s fraud, because the
units were not conveyed as Taylor had represented. In the related district court proceeding,
Appellants were adjudicated owners as joint
tenants and not as tenants in common of the
seven condominiums at issue. The current
Vol. 80 — No. 18 — 7/11/2009
appeal arose when Plaintiff/Appellee, Quorum Condominium Owner’s Association, Inc.
(Quorum) filed a petition requesting payment
from Appellants for condo fees and assessments incurred for the units conveyed by Taylor and previously owned by Appellants.
Appellants defend Quorum’s claim for damages in this case with the assertion that they
did not own the condos, arguing Quorum
could not seek the fees from non-owners. Quorum countered that Appellants were adjudicated owners of the property and could not
attack that previous determination in this proceeding. The trial court granted Quorum’s
motion for summary judgment. Appellants
filed a motion for new trial, which the trial
court denied. Appellants appeal the denial of
their motion for new trial. In order to determine if the trial court abused its discretion in
denying the new trial motion, the appellate
court must examine by de novo review whether the trial court’s summary judgment determination was correct. Under the doctrine of issue
preclusion [or collateral estoppel] once a court
has decided an issue of fact or of law necessary
to its judgment, the same parties or their privies may not relitigate that issue in a suit
brought upon a different claim, provided the
party against whom the earlier decision is
being applied had a full and fair opportunity to
litigate the critical issue in the previous case.
Appellants make no claim that they were not
given a full and fair opportunity to litigate the
issue of ownership in the previous case, nor do
Appellants claim the judgment in the related
case is invalid. Because the previous judgment
decided the issue of Appellants’ ownership,
the decision of the trial court is AFFIRMED.
Opinion by Joplin, J.; Hansen, P.J., and Mitchell, C.J., concur.
106,693 — King Well Service and Mid-Continent Casualty Company, Petitioners, vs. John
Bethel and The Workers’ Compensation Court,
Respondents. Proceeding to Review an Order
of a Three-Judge Panel of The Workers’ Compensation Court. Petitioners (Employer) seek
review of a Workers’ Compensation Court
(WCC) order authorizing replacement prostheses for Respondent (Claimant) amputated right
arm and left leg. Employer asserts it was
deprived of a proper hearing before the WCC
authorized the prostheses and contends this
raises the issue of due process. Because Employer designated only a partial record, the only
record we have pertaining to Employer’s contention is the order authorizing the prostheses.
That order states Claimant and Employer
1503
“appeared by counsel.” There is no transcript
of the hearing, nor has Employer offered a narrative statement of the proceedings. On the
record before us, we must presume Employer
was afforded due process. Employer’s remaining two contentions are without merit. Employer fails to provide any legal authority either
restricting Claimant being provided with multiple prostheses for each limb or requiring a
time certain for the use of those prostheses to
be imposed by the WCC. We find the WCC’s
order is supported by competent evidence. In
the absence of legal error, the order is SUSTAINED. Opinion by Hansen, P.J.; Mitchell,
C.J., and Joplin, J., concur.
106,805 — City of Shawnee, an Own Risk
Carrier, Petitioner, vs. Alan Gunter, and The
Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation
Court. Petitioner (Employer) seeks review of a
Workers’ Compensation Court (WCC) order
finding, inter alia, Respondent (Claimant) sustained permanent partial disability (PPD) to
his neck. Employer’s sole contention is that
WCC erred in finding Claimant sustained PPD
to his neck because he had no “anatomical
abnormality” as required by 85 O.S. Supp. 2005
§3(19), and that Claimant had received no
treatment for his neck injury. We find no merit
in either argument. While certainly treatment
of a claimed injury, or lack thereof, is one factor
which may properly be considered by the
WCC in deciding whether a claimant has sustained disability or impairment, it is not definitive. Claimant’s medical expert, Dr. McClure,
found permanent impairment to Claimant’s
cervical spine of 55%, with 26% pre-existing
impairment. Dr. McClure, was of the opinion
Claimant’s October 15, 2007 work related accident “was the major cause of the injury, impairment, and permanent anatomical abnormality to
his cervical spine and left shoulder.” Employer
has not contended this report is incompetent.
The WCC’s order is supported by competent
evidence. SUSTAINED. Opinion by Hansen,
P.J.; Mitchell, C.J., and Joplin, J., concur.
(Division No. 4)
Wednesday, June 24, 2009
105,731 — S.R. (a minor child), and Michael
Reid and Rachel Reid (individually and as parents and next friends of S.R., a minor child),
Plaintiffs/Appellees, vs. Ernest F. Stockdale,
Defendant/Appellant. Appeal from the District Court of Tulsa County, Hon. Deborah C.
Shallcross, Trial Judge, awarding attorney fees
to Plaintiffs for fees expended in litigating a
1504
property damage claim. Defendant admitted
liability and made a pre-suit tender of payment, and Plaintiffs accepted Defendant’s Offer
to Confess. Plaintiffs are entitled to attorney
fees and costs pursuant to this settlement
agreement, not by virtue of any statute. The
fact that Plaintiffs refused to settle before the
lawsuit was filed is not per se unreasonable for
purposes of receiving attorney fees. AFFIRMED.
Opinion form Court of Civil Appeals, Division
IV, by Gabbard, P.J.; Rapp, J., and Fischer, J.,
concur.
106,726 — Great Plains National Bank, Plaintiff, vs. Jabez Farms, L.L.C.; and Ronald Ladd
and Patricia Ladd, individuals, and sometimes
doing business as Ronald and Patricia Ladd
Joint Venture, Defendants/Third-Party Plaintiffs, vs. Stockmans Bank, Deere & Company,
and Farm Credit of Western Oklahoma, PCA,
Additional Defendants, vs. First State Bank of
Altus, Defendant and Third-Party Plaintiff/
Appellee, vs. Quality Implement Co., ThirdParty Defendant/Appellant, vs. R&P Farms,
Inc.; Boaz Land & Cattle, LLC; Triple 777 Farm,
LLC; Martha Farm, LLC; Barbee-Neuhaus
Implement Co.; Ryan Robbins; Timothy Wayne
McDaniel; Western Equipment, LLC; Danny
McCustin; and Larry McLaughlin, Third-Party
Jackson County, Hon. Allen McCall, Trial Judge,
granting summary judgment and attorney’s
fees to Appellee. As a matter of law, Appellee’s
financing statements were insufficient to give
Appellant constructive notice, because neither
of the transactions involving collateral covered
by the financing statements were with the
debtors named by those statements. Without
notice, Appellant could not have exercised
“wrongful dominion” over the collateral or
Appellee’s security interest, and therefore cannot be liable for conversion. REVERSED AND
REMANDED WITH DIRECTIONS. Opinion
from Court of Civil Appeals, Division IV, by
Gabbard, P.J.; Rapp, J., and Barnes, J. (sitting by
designation), concur.
106,691 — Century Employer Services and/
or Cryptonite Frameworks LLC and SUA Insurance Co., Petitioners, vs. Leo Mendez and the
Proceeding to Review an Order of a Workers’
Compensation Court Three-Judge Panel, Hon.
John M. McCormick, Trial Judge, affirming a
trial court decision which found Claimant was
an employee of Employer, and required
Employer to provide temporary total disability
and medical benefits. This Court, on de novo
Vol. 80 — No. 18 — 7/11/2009
review of the evidence and law, agrees with the
workers’ compensation tribunal that Claimant
was an employee and is entitled to workers’
compensation benefits. The evidence also supports the workers’ compensation court’s rejection of Employer’s argument that Claimant’s
injury — a puncture wound and broken bone
in his foot caused by a nail gun — was a “soft
tissue injury” within the meaning of 85 O.S.
2008 § 22(3)(d). The nature of the injury is such
that Claimant’s TTD benefits are not limited by
that statute. SUSTAINED. Opinion from Court
of Civil Appeals, Division IV, by Gabbard, P.J.;
Rapp, J., and Fischer, J., concur.
106,100 — Mark K. Marks Wolfe, Plaintiff/
Appellant, vs. Shannon Edwards, an individual, and The Osage Company, L.L.C., an Oklahoma Limited Liability Company, Defendants/
Appellees. Appeal from an Order of the District Court of Oklahoma County, Hon. Bryan C.
Dixon, Trial Judge. The plaintiff, Mary K.
Marks Wolfe (Wolfe) appeals a money judgment entered after a jury verdict and two trial
court orders granting summary judgment on
the issues of Statute of Limitations entered during the course of the proceedings. The first
order summarily disposed of her claim against
the defendants, Shannon Edwards (Edwards)
and The Osage Company, L.L.C. (Osage) on
the ground that it was barred by the statute of
limitations. The second order barred her affirmative defense of fraud against the counterclaim of Osage. Last, Wolfe appeals the judgment entered in favor of Osage after a jury
verdict awarding Osage damages. Wolfe asserted that she and Edwards had an attorney-client
relationship during the relevant time period
involved in this case. Edwards denied that
such a relationship existed at that time. Wolfe
owned rental property in Oklahoma. She
intended to move to Texas in late summer of
2002. She claims that she discussed with
Edwards the fact that she wished to keep the
property and had rejected offers to purchase
the property. According to Wolfe, Edwards
offered to manage the property. Edwards version of the events differs markedly from Wolfe’s
version. After learning from Wolfe in about
July of 2002, that Wolfe wished to sell the property, Edwards began her investigations of the
property as an investment. Edwards prepared
the documents consisting of the promissory
note, the mortgage, the deed and a financing
statement and presented them to Wolfe for
execution. Edwards provided the documents
to Wolfe prior to her departure to Texas.
Vol. 80 — No. 18 — 7/11/2009
Edwards also decided to take title in a limited
liability company. She formed Osage with herself as the sole member. In 2004, Osage accepted a purchase offer from a third party. Wolfe
was contacted in order to obtain releases and
payoff. She refused. A second sale in 2006 met
with the same refusal and Wolfe also filed this
action. The prospective buyer withdrew from
the agreement. Osage counterclaimed for loss
of profit on the sale. During the course of the
proceedings, the trial court sustained summary
judgment and disposition motions on behalf of
Edwards and Osage based upon the expiration
of the statute of limitations. These rulings disposed of Wolfe’s lawsuit and her defense to
Osage’s counterclaim, except as to damages.
The damages portion of the counterclaim was
submitted to a jury and a verdict was returned
in favor of Osage. Wolfe asserts that the trial
court erred in certain evidentiary rulings during the course of the jury trial. Wolfe has failed
to demonstrate that a genuine issue of fact
exists regarding her claim that the statute of
limitations was tolled. The statute of limitations has barred Wolfe’s action and defense to
Osage’s counterclaim. Wolfe has not shown the
presence of error regarding the trial court’s rulings on the admission of evidence. Last, Wolfe’s
assertion that she was excused from releasing
the mortgage because Osage did not tender
payment must be rejected because that was not
her defense. The summary judgment and disposition rulings of the trial court are affirmed.
The judgment entered after the jury trial is
affirmed. AFFIRMED. Opinion from Court of
Civil Appeals, Division IV, by RAPP, J.; GABBARD, P.J., and FISCHER, J., concur.
ORDERS DENYING REHEARING
(Division No. 1)
Monday, June 29, 2009
105,322 — Terry L. Saffell, Individually, Plaintiff/Appellant, and Jamie Saffell, Plaintiff, vs.
Willard Barton Warren and Darryl James Akee,
Individually, and Each of Them, Defendants/
Appellees. Plaintiff/Apellant’s Petition for
Rehearing filed June 24, 2009 is DENIED.
(Division No. 2)
105,893 — Cletis Roper and Elvin Roper,
Plaintiffs/Appellants, v. Radiology Consultants of Tulsa, Inc., Steven E. Sheffner, M.D., H.
Percy Smith, M.D., Inc., H. Percy Smith, M.D.,
J. Harley Galusha, D.O., Defendants/Appellees. Appellants’ Petition for rehearing is
DENIED.
1505
STATE OF OKLAHOMA, DEPARTMENT
OF HUMAN SERVICES
OKLAHOMA CHILD SUPPORT ENFORCEMENT
ANNOUNCEMENT # 09-C091
The Tulsa County Oklahoma Child Support Services has a
vacancy for a full-time Child Support Enforcement Attorney I with
knowledge of legal principles and their application of legal
research method and the scope of Oklahoma Statue. This position will be housed at the OCSS Tulsa West office located at 440
S. Houston Suite 401, Tulsa, Oklahoma.
The position is the entry level Staff Attorney I to review OCSS
computer records to determine state involvement in domestic
cases, signing temporary orders, disclaimers and final orders for
the agency after review to ensure compliance with Title 43 O.S.
Section 112(F). Monitor domestic dockets, acting as a liaison
with the two Tulsa OCSS offices on orders inappropriately
entered without the State’s approval and providing timely signing
or orders.
Active membership in the Oklahoma Bar Association is required.
Interested individuals must send a cover letter, resume, and a
copy of current OBA card to: Office of Child Support Services,
Attn.; Personnel Unit, Capital Station, Box 53552, Oklahoma
City, OK 73152. Application must be received no earlier than
8:00 AM Friday July 10, 2009 and no later than 5:00 pm on
Friday July 31, 2009.
Federal Law Clerk
The United States District Court for the Western District of Oklahoma is accepting applications for a term law clerk for a magistrate judge. This is a full-time term position with benefits. A law
degree is required, together with a strong academic record and
demonstrated skills in legal research and writing. The annual
salary range is $56,411 up to a maximum of $104,525. Starting
salary depends upon academic background, skills, work experience and salary history.
REPRESENTATIVE DUTIES: Review complaints; research legal
issues; prepare motions; draft bench memoranda and proposed
orders; monitor progress of cases and work on special projects.
Incumbent will also perform administrative duties such as drafting
correspondence, proofreading and editing documents, arranging
meetings and conferences, and maintaining chambers’ calendar.
Incumbent will act as a liaison between the assigned judge and
attorneys, court personnel, and others. See full employment notice
at www.okwd.uscourts.gov.
To apply, please send two copies of resume and cover letter with
one copy of a writing sample by July 20, 2009 to:
Vacancy: 09-04
Robert D. Dennis, Clerk of Court
U.S. District Court
200 NW 4th Street, Rm 1210
An Equal Opportunity Employer
THE STATE OF OKLAHOMA IS AN EQUAL OPPORTUNITY
EMPLOYER
Complex Issues in Child Custody Litigation
Presented by the OBA Family Law Section. This course has been approved 6 hours of mandatory CLE Credit,
including 0 hours Ethics Credit.
DATE &
LOCATION:
Oklahoma City
July 16, 2009 (Thursday)
University of Central Oklahoma
Nigh University Center, Ballroom A
2nd Street & Garland Godfrey Drive
Edmond, OK
Tulsa
July 17, 2009 (Friday)
OSU-Tulsa
North Hall Room 150
700 North Greenwood
Tulsa, OK
Registration 8:30 a.m., Seminar begins at 9:00 a.m. and adjourns at 3:00 p.m. with lunch included.
COST: $95 payable to OBA Family Law Section. Cost of registration includes materials and lunch.
CONTACT: Kimberly Hays, 248 West 16th St., Tulsa, OK 74119, fax (918) 592-4143 Questions: Call Kimberly Hays
(918) 592-2800 or email: kimberlyhayslaw@aol.com
Program:
Margaret “Pegi” Price, St. Louis attorney, will discuss what special needs are, how they are relevant in the arena
of divorce, and what lawyers can do to make the system work better for these children and their families. Ms.
Price has written and lectured extensively regarding the needs of special needs children during divorce. She is
the author of “The Special Needs Child and Divorce: A Practical Guide to Evaluating and Handling Cases”, published by the American Bar Association.
“Joint Custody and Kilpatrick vs. Kilpatrick”
N. Scott Johnson
“What Is Your Client Learning?” Family & Children’s Services - Helping Children Cope with Divorce Program
(Tulsa Only) & /Calm Waters Center for Children and Families- Parenting Through Divorce (Edmond Only)
“Issues Related to Sexual Offenders” Randy Lopp, LPC, LADC (Tulsa Only) and G. Richard Kishur, Ph.D.
(Edmond Only)Mr. Lopp and Dr. Kishur will address issues such as what is a Psychosexual Evaluation, treatment
amenability, recidivism risk analysis and more.
1506
Vol. 80 — No. 18 — 7/11/2009
Vol. 80 — No. 18 — 7/11/2009
1507
TRAILBLAZER Award
2008 winner
Judge Thomas S. Landrith, Ada
This award goes to an OBA member or
members who by their significant, unique
visionary efforts have had a profound impact
upon our profession and/or community and in
doing so have blazed a trail for others to follow.
…and the 2009 WINNER
is…
?
The University of Tulsa
College of Law is seeking
an Assistant Dean,
Director of Professional
Development. This position will be responsible
for developing and
implementing a strategic
career service program for marketing law students and graduates with the goal of providing
a broad spectrum of professional opportunities
to students and graduates nationwide and
internationally. The Assistant Dean will be
highly involved in community outreach and
marketing, assisting the Dean with projects
interacting with the public, the legal community, the business sector, students, administrators,
and faculty. For more information regarding
this position, please visit our website at www.
utulsa.edu/personnel/jobs.
Please submit a cover letter, resume and the
names, addresses and phone numbers of three
references to: The University of Tulsa, Office of
Human Resources, 800 S. Tucker Drive, Tulsa,
OK 74104 or email to tujobs@utulsa.edu or
fax to (918) 631-3543. The review of applications will commence immediately and will
continue until the position is filled.
STATE OF OKLAHOMA, DEPARTMENT
OF HUMAN SERVICES
CHILD SUPPORT ENFORCEMENT
ANNOUNCEMENT # 09-C060
The Woodward/Guymon County Oklahoma Child Support
Services for a full-time attorney with experience in child support
enforcement. This position will be attached to the Woodward
OCSS office but will house in Guymon, Oklahoma.
The position involves preparation and trial of cases in child
support related hearings in district and administrative courts, and
preparation and filing of pleadings incident thereto. Duties will
also include consultation and negotiation with other attorneys
and customers of Office of Child Support Services. Position will
assist office staff with preparation of legal documents and ensure
their compliance with ethical considerations.
If you know someone who
deserves to be nomimated for
an award, visit
WWW.OKBAR.ORG
Active membership in the Oklahoma Bar Association is
required. This position may be under filled as a Child Support
Enforcement Attorney II (beginning salary $3711.05 monthly) or
as a Child Support Enforcement Attorney I (beginning salary
$3354.59 monthly) Interested individuals must send a cover
letter, resume, and a copy of current OBA card to: Office of Child
Support Services, Attn.; Personnel Unit, Capital Station, Box
53552, Oklahoma City, OK 73152. Application must be received
no earlier than 8:00 AM Friday 07/10/2009 and no later than
5:00 pm on Wednesday 07/29/2009.
THE STATE OF OKLAHOMA IS AN EQUAL OPPORTUNITY
EMPLOYER
1508
Vol. 80 — No. 18 — 7/11/2009
CLASSIFIED ADS
SERVICES
SERVICES
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
ATTORNEY WITH 20 + YEARS OF EXPERIENCE
predominately in criminal defense with limited experience in family and probate law seeking other opportunities with small firm. Please send letters of interest to
dannett57@hotmail.com.
Board Certified
Diplomate — ABFE
Life Fellow — ACFE
Court Qualified
Former OSBI Agent
FBI National Academy
Arthur D. Linville (405) 636-1522
BRIEF WRITING, APPEALS, RESEARCH AND DISCOVERY SUPPORT. Fourteen years experience in civil
litigation. Backed by established firm. Neil D.
VanDalsem, Taylor, Ryan, Schmidt & Van Dalsem P.C.
(918) 749-5566, nvandalsem@trsvlaw.com.
OF COUNSEL LEGAL RESOURCES — SINCE 1992 —
Exclusive research & writing. Highest quality: trial and
appellate, state and federal, admitted and practiced
U.S. Supreme Court. Over 20 published opinions with
numerous reversals on certiorari. MaryGaye LeBoeuf
(405) 728-9925, marygaye@cox.net.
EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL
Fitzgerald Economic and Business Consulting
Economic Damages, Lost Profits, Analysis, Business/
Pension Valuations, Employment, Discrimination,
Divorce, Wrongful Discharge, Vocational Assessment,
Life Care Plans, Medical Records Review, Business/
Legal Ethics. National, Experience. Call Patrick
Fitzgerald. (405) 919-2312.
Appeals and litigation support — Expert
research and writing by a veteran generalist who
thrives on wide variety of projects, big or small.
Cogent. Concise. Nancy K. Anderson, (405) 682-9554,
nkanderson@hotmail.com.
INTERESTED IN PURCHASING PRODUCING &
NON-PRODUCING Minerals; ORRI; O & G Interests.
Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; (405)
755-7200; Fax (405) 755-5555; E-mail: pcowan@cox.net.
BUSINESS VALUATIONS: Marital Dissolution * Estate, Gift & Income Tax * Family Limited Partnerships *
Buy-Sell Agreements * Mergers, Acquisitions, Reorganization & Bankruptcy * SBA/Bank Required. Dual
Certified by NACVA and IBA, experienced, reliable,
established in 1982. Travel engagements accepted. Connally & Associates, P.C. (918) 743-8181 or bconnally@
connallypc.com.
OKC ATTORNEY HAS CLIENT INTERESTED in purchasing producing and non-producing, large or small,
mineral interests. For information, contact Tim Dowd,
211 N. Robinson, Suite 1300, OKC, OK 73102, (405) 2323722, (405) 232-3746 - fax, timdowd@eliasbooks.com.
Vol. 80 — No. 18 — 7/11/2009
EXPERT WITNESSES • ENVIRONMENTAL GEOSCIENCES: Litigation • Regulatory • Transaction; Energy
• Industry • Agriculture; Geology • Soils • Water •
Groundwater; Contamination Timing • Source • Transport • Fate; Hydrocarbons • Saltwater • Metals • Nutrients • Radionuclides • Solvents; Remote Sensing •
Mapping • Spatial Analysis; Research •Expert Reports
• Testimony • Phase I Assessments • Environmental
Sampling; National Experience; Contact J. Berton Fisher, Lithochimeia, LLC www.lithochim.com; (918) 5272332 or (918) 382-9775; bfisher@lithochim.com.
OFFICE SPACE
LUXURY OFFICE SPACE - FIVE OFFICES: One executive corner suite with fireplace ($1,200.00/month); two
large offices ($850.00/month); and two small offices
($650.00 each/month). All offices have crown molding
and beautiful finishes. A fully furnished reception area,
conference room, and complete kitchen are included, as
well as a receptionist, high-speed internet, fax, cable
television and free parking. Completely secure. Prestigious location at the entrance of Esperanza located at
153rd and North May, one mile north of the Kilpatrick
Turnpike and one mile east of the Hefner Parkway.
Contact Gregg Renegar at (405) 285-8118.
ABEL LAW FIRM has office space available at its building, The White House. The White House is a converted
estate mansion at the corner of N.E. 63rd and Kelley
with easy access to I-44. Space includes beautiful reception area, receptionist, library, fax machine, telephone
system, conference rooms, kitchen, workout facility
and free parking. Call Ed Abel at (405) 239-7046.
FREE STANDING OFFICE BLDG. 3121 Classen Blvd.,
9,400 Sq. Ft., Great low Rent @ $4.00 per Sq. Ft., 3150
per month, Subdivided into Offices for subleasing,
high exposure and traffic on Classen (405) 525-6671.
HERITAGE HILLS OKC OFFICE SPACE. 625 N.W.
13th. Share office space with three other lawyers. Comfortable reception area; large well decorated conference
room; phone system w/voice mail; copier/printer/
fax/document server, network w/server; Internet;
postage machine; ample free parking; 3 minutes from
County and Federal court houses. Some referrals.
$550.00/per month. Available now.
SOUTH TULSA-JENKS, 1123 West Main in Jenks. Law
office. Three large offices on Main Street. Large lighted
outdoor sign. Fax, parking, conference room, and reception area. One office available. Call Ed Poston: (918)
296-0300. $500.00 per month.
1509
POSITIONS AVAILABLE
POSITIONS AVAILABLE
PARALEGAL: SMALL, TWO ATTORNEY AV RATED
FIRM needs experienced paralegal. Successful applicant will manage 60-80 files. Family law and bankruptcy experience and proficiency in Word Perfect and Best
Case preferred. Resume will be kept strictly confidential. Please send resume with references to Holmes and
Yates, P. O. Box 750, Ponca City, OK 74602.
THE LAW FIRM OF HOLDEN CARR & SKEENS
seeks both senior-level and junior-level litigators for
the firm’s Oklahoma City and Tulsa offices. Holden
Carr & Skeens is an insurance defense firm with a
broad client base and a strong presence in Oklahoma.
Senior level attorneys must be able to manage a litigation team and have 10 years of experience or more in
litigation and, in particular, jury trial practice. Proven
track record in business development is preferred. Junior level attorneys should have at least 2-10 years of
experience in litigation. Salary is commensurate with
experience. Applications will be kept in the strictest
confidence. Resumes and writing samples should be
sent to ChelseaHill@HoldenOklahoma.com.
LEGAL SECRETARY FOR TULSA AV CIVIL DEFENSE
LITIGATION FIRM. At least three years (but preferably
more) legal experience and good computer skills required for this fast-paced firm. Competitive salary and
benefits. Send resume to legalrecruit500@yahoo.com.
All inquiries kept strictly confidential.
THE LAW FIRM OF HOLDEN CARR & SKEENS seeks
an experienced litigator with FAA regulatory and government contract experience for the firm’s Tulsa office.
Holden Carr & Skeens is an insurance defense firm
with a broad client base and a strong presence in Oklahoma. Salary is commensurate with experience. Applications will be kept in the strictest confidence. Resumes
and writing samples should be sent to ChelseaHill@
HoldenOklahoma.com.
ASSISTANT GENERAL COUNSEL: MidFirst Bank
seeks an Assistant General Counsel who will advise the
company’s management on a wide array of issues including consumer, mortgage and business lending, deposit, trust, and corporate records issues; bank operations issues; real estate documents, loan documents
and general contracts; and assist 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. Litigation experience a plus.
We offer a competitive salary and benefits package. If
you wish to be considered for this opportunity please
visit our website (www.midfirst.com) to apply. Requisition #2651. AA/EOE M/F/DV.
LEGAL ASSISTANT NEEDED: MidFirst Bank seeks a
Legal Assistant to assist with invoice processing and
accounting matters, general administrative duties, garnishment processing and time tracking/reporting. Successful candidate will have 1-3 years experience, legal
and accounting experience preferred. Preference is for
candidate to possess a Bachelor degree, successful completion of Certified Legal Assistant examination or certificate from an ABA-accredited paralegal program.
Need to have thorough working knowledge of computer software including word processing, spreadsheets, document management and email. If you wish
to be considered for this opportunity, please visit our
website (www.midfirst.com) to apply. Requisition
#2650. AA/EOE M/F/DV.
1510
IMMEDIATE OPENING FOR ATTORNEY: AV rated
plaintiff’s injury law firm in OKC (Midtown) seeks associate attorney. Beautiful historical office and great
support staff. Must have excellent computer and organizational skills and be ready to hit the ground running
with large caseload. Experience in personal injury law
highly recommended. Salary commensurate with experience. Benefit package includes medical and dental insurance. All inquiries kept confidential. Send replies to
“Box B,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
THE OKLAHOMA STATE DEPARTMENT OF
HEALTH has an immediate opening for a Staff Attorney III in the Office of General Counsel. This position will provide legal consultation to OSDH staff
throughout the State of Oklahoma in general areas of
Oklahoma law, with emphasis in federal court practice and employment related law, including but not
limited to Title VII of the Civil Rights Act, the Americans with Disabilities Act, FMLA, the Rehabilitation
Act of 1974, as amended, the Oklahoma Personnel
Act and State Anti-discrimination law, and other employment related laws. Current membership in the
Oklahoma Bar Association and a minimum of at least
eight (8) years in the active practice of law, to include
at least five (5) years experience in employment law
issues in federal and state civil litigation and state administrative proceedings; prior experience with the
Oklahoma Administrative Procedures Act desirable.
Salary : Range $5,000.00 to $5,433.00 and travel is required. Writing and oral advocacy skills paramount.
Send resume and writing sample to Tom Cross, Deputy General Counsel, 1000 NE 10th Street, OKC 73117
or email tomlc@health.ok.gov. The OSDH is an equal
opportunity employer. This announcement closes
July 24, 2009.
NW OKLAHOMA LAW FIRM IN NEED of an experienced legal secretary for Woodward area. Good communication and computer skills a must. Great benefits
and salary. Send replies to “Box Y,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
Vol. 80 — No. 18 — 7/11/2009
POSITIONS AVAILABLE
POSITIONS AVAILABLE
AV RATED OKLAHOMA CITY LITIGATION FIRM
needs outstanding associate with 0 to 2 years experience.
Focus of practice will be insurance defense, products liability, and bad faith litigation. Successful candidate
must have excellent academic record, with solid research
and writing ability. Please send resume, references and
writing sample to “Box G,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
FIRST AMERICAN TITLE & TRUST COMPANY IN
OKLAHOMA CITY seeks attorney for residential
underwriting position. Must have strong background
in real estate law and title examination. All contacts
will be kept confidential. Compensation commensurate with experience. Great benefits package. Fax resume and references to (405) 605-1998 or e-mail to
hchapman@firstam.com.
HARD WORK REWARDED at young, growing, AVrated downtown OKC firm with 8 attorneys. Pignato,
Cooper, Kolker & Roberson, P.C. is seeking 2 associates
with 1 to 3 years civil litigation experience, preferably
insurance defense. Strong research and writing skills a
must. Best benefits in town. Salary and bonuses commensurate with experience. Send resume and writing
sample to brad@pclaw.org or the firm’s Oklahoma City
office at 119 N. Robinson, Suite 1120, Oklahoma City,
OK 73102.
SMALL EDMOND LAW FIRM SEEKS experienced
legal asst/paralegal for full-time position. Experience in personal injury or insurance defense litigation is required. Salary DOE. Please fax resume to
(405) 488-1485 or email to: ray@mapleslawokc.com.
SMALL NORMAN LAW FIRM SEEKS EXPERIENCED
LEGAL SECRETARY/PARALEGAL. Practice areas include criminal law, personal injury, family law, and bankruptcy. Competitive salary and benefits. Send resume to
(405) 360-6702 or email to knedwick@nedwicklaw.com.
Vol. 80 — No. 18 — 7/11/2009
CLASSIFIED INFORMATION
CLASSIFIED RATES: One dollar per word per
insertion. Minimum charge $35. Add $15 surcharge
per issue for blind box advertisements to cover
forwarding of replies. Blind box word count
must include “Box ____ , Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City,
OK 73152.” Display classified ads with bold
headline and border are $50 per inch. See www.okbar.
org for issue dates and Display Ad sizes and rates.
DEADLINE: Tuesday noon before publication.
Ads must be prepaid. Send ad (e-mail preferred) in
writing stating number of times to be published to:
Jeff Kelton, Oklahoma Bar Association
P.O. Box 53036, Oklahoma City, OK 73152
E-mail: jeffk@okbar.org
Publication and contents of any advertisement is not
to be deemed an endorsement of the views expressed
therein, nor shall the publication of any advertisement
be considered an endorsement of the procedure or
service involved. All placement notices must be clearly
non-discriminatory.
1511
Network
Mentor
Connect
Interact
Opportunity
Market etc.
www.okbar.org

Volume 80 No. 18 July 11, 2009

Transcription

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