Court Material - Oklahoma Bar Association

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Volume 78 u No. 28 u Oct. 13, 2007
Court Material
OBA/CLE and the OBA Estate Planning, Probate, and Trust Section
Advanced Estate Planning: 2007
Oklahoma City
Novem ber 30, 2007
Oklahom a Bar Center
1901 N. Lincoln Blvd.
DATE &
LOCATION:
CLE CREDIT:
This course has been approved by the Oklahom a Bar Association Mandatory Continuing Legal
Education Com m ission for 6 hours of m andatory CLE credit, including 1 hour of ethics.
TUITION:
$150 for OBA Estate Planning, Probate and Trust Section m em bers and $175 for non-OBA
Estate Planning, Probate & Trust Section m em bers for early-bird registrations received with
paym ent at least four full business days prior to the sem inar date; $175 for OBA Estate
Planning, Probate and Trust Section m em bers; $200 non-OBA Estate Planning, Probate &
Trust Section m em bers registrations received within four full business days of the sem inar date.
$20 to join section. No discounts. Register online at www.okbar.org/cle.
CANCELLATION
POLICY:
Cancellations will be accepted at any tim e prior to the sem inar date; however, a $25 fee will
be charged for cancellations m ade within four full business days of the sem inar date.
Cancellations, refunds, or transfers will not be accepted on or after the sem inar date.
Program Planner/Moderator
LeAnn P. Drummond, Attorney at Law, Stillwater
A.M. Program
Speaker:
Michael V. Bourland, Bourland, Wall & Wenzel, P.C., Ft. Worth
8:30 a.m.
Registration and Continental Breakfast
9:00
Family Business Succession Planning for Family Business Owners and Their Families
This presentation offers a review of planning and implementation/documentation of various options to pass on the
family business. The discussion covers effective use of the family business mission statement, non-competition
agreements, entity choices, IRC 355 actions, employment agreements (including non-family employee deferred
benefit agreements), and the ethical issues facing the lawyer who works with the family in the succession process.
(.5 hours of ethics)
(includes 15-minute break)
11:45
Lunch sponsored by
P.M. Program
Speaker:
Darin N. Digby, Schoenbaum, Curphy & Scanlan, P.C., San Antonio
1:00
Transfer Planning: What Are You Waiting For...Estate Tax Repeal?
Discussion and analysis of lifetime estate planning transfers with an emphasis on transfers of property over which
the donor wishes to maintain some control. Points to consider in designing donor-trusteed irrevocable trusts.
Practical planning ideas for removing appreciation from donor's estate through the use of GRATs and Intentionally
Defective Grantor Trusts. (.5 hours of ethics)
(includes 15-minute break)
3:45
Adjourn
Advanced Estate Planning
Oklahoma City
November 30, 2007
G$150 m em bers of OBA Advanced
Estate Planning, Probate & Trust Section
G $175 for non m em bers of OBA Estate
Planning, Probate & Trust Section
G$20 2008 OBA Estate Planning, Probate,
& Trust Section Dues
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) _______________________ E - Mail _____________
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Register online at w ww.okbar.org/cle
2594
The Oklahoma Bar Journal
Vol. 78 — No. 28 — 10/13/2007
OFFICERS & BOARD OF GOVERNORS
Stephen D. Beam,President, Weatherford
J. William Conger, President-Elect, Oklahoma City
Jack S. Dawson, Vice President, Oklahoma City
William R. Grimm, ImmediatePastPresident, Tulsa
Julie E. Bates, Oklahoma City
Dietmar K. Caudle, Lawton
Cathy M. Christensen, Oklahoma City
Donna L. Dirickson, Weatherford
Robert S. Farris, Tulsa
Brian T. Hermanson, Ponca City
Michael W. Hogan, McAlester
R. Victor Kennemer III, Wewoka
Deborah A. Reheard, Eufaula
Robert B. Sartin, Tulsa
Alan Souter, Bristow
Peggy Stockwell, Norman
Christopher L. Camp, Tulsa, Chairperson,
OBA/YoungLawyersDivision
BAR CENTER STAFF
John Morris Williams, ExecutiveDirector;
Dan Murdock, GeneralCounsel; Donita Bourns
Douglas, DirectorofEducationalPrograms;
Carol A. Manning, DirectorofPublicInformation;
Craig D. Combs, DirectorofAdministration;
Gina L. Hendryx, EthicsCounsel; Jim Calloway,
DirectorofManagementAssistanceProgram; Rick
Loomis,DirectorofInformationSystems; Beverly S.
Petry, AdministratorMCLECommission; Jane
McConnell, CoordinatorLaw-relatedEducation;
Janis Hubbard,FirstAssistantGeneralCounsel;
Loraine Dillinder Farabow and Janna D. Hall,
AssistantGeneralCounsels; Robert D. Hanks, SeniorInvestigator; Sharon Orth and Dorothy Walos,
Investigators
Nina Anderson, Manni Arzola, Jenn Barrett,
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Hill, Debra Jenkins, Durrel Lattimore, Heidi
McComb, Renee Montgomery, Wanda ReeceMurray, Tracy Sanders, Mark Schneidewent,
Dana Shelburne, Laura Willis & Roberta
Yarbrough
EDITORIAL BOARD
Editor in Chief, John Morris Williams
News & Layout Editor, Carol A. Manning
Editor, Melissa DeLacerda, Stillwater
Associate Editors: Steve Barnes, Poteau; Martha
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Oklahoma City; John Munkacsy, Lawton; Julia
Rieman, Enid; James Stuart, Shawnee and Judge
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NOTICE of change of address (which must be in
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news stories, articles and all mail items should be
sent to the Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152-3036.
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Vol.78—No.28—10/13/2007
EVENTS CALENDAR
OCTOBER
17
18
19
23
26
OBA Diversity Committee Meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Linda SamuelJaha (405) 290-7030
Ginsburg Inn of Court; 5 p.m.; Oklahoma Bar Center, Oklahoma City;
Contact: Julie Bates (405) 691-5080
OBA Work/Life Balance Committee Meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City; Contact: Melanie Jester (405) 609-5280
OBA Board of Governors Meeting; Custer County; Contact: John Morris
Williams (405) 416-7000
Death Oral Argument, Wade Greely Lay – D-2005-1081; 9 a.m.;
Court of Criminal Appeals Courtroom
Uniform Laws Committee Meeting; 3:30 p.m.; Oklahoma Bar
Association and Tulsa County Bar Center, Tulsa; Contact: Frederick H. Miller
(405) 235-4100nty Bar Center, Tulsa; Contact: Frederick H.
Miller (405) 235-4100
NOVEMBER
OBA 103rd Annual Meeting; Sheraton Hotel, One North Broadway,
Oklahoma City
8
OBA Board of Governors Meeting; Sheraton Hotel, One North Broadway,
Oklahoma City; Contact: John Morris Williams (405) 416-7000
OBF Board of Trustees Meeting; Sheraton Hotel, One North Broadway,
Oklahoma City
12
Veteran’s Day (State Holiday)
13
OBA Bar Center Facilities Committee Meeting; 9 a.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Bill
Conger (405) 521-5845
14
Ginsburg Inn of Court; 5 p.m.; Oklahoma Bar Center, Oklahoma City;
Contact: Julie Bates (405) 691-5080
22-23 Thanksgiving Holiday (State Holiday)
28
OBA Clients’ Security Fund Committee Meeting; 2 p.m.; Oklahoma
Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact:
Micheal Salem (405) 366-1234
7-9
For more events go to www.okbar.org/news/calendar.htm
The Oklahoma Bar Association’s official Web site:
www.okbar.org
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar
Association. All rights reserved. Copyright© 2007 Oklahoma Bar Association.
The design of the scales and the “Oklahoma Bar Association” encircling the
scales are trademarks of the Oklahoma Bar Association. Legal articles carried
in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS PUBLISHED FOUR TIMES A
MONTH IN JANUARY, THREE TIMES A MONTH IN FEBRUARY, MARCH, APRIL,
MAY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER AND DECEMBER AND BIMONTHLY IN JUNE AND JULY EFFECTIVE JAN. 1, 2003. BY THE OKLAHOMA BAR
ASSOCIATION, 1901 N. LINCOLN BOULEVARD, OKLAHOMA CITY, OKLAHOMA
73105. PERIODICALS POSTAGE PAID AT OKLAHOMA CITY, OK. POSTMASTER:
SEND ADDRESS CHANGES TO THE OKLAHOMA BAR ASSOCIATION, P.O. BOX
53036, OKLAHOMA CITY, OK 73152-3036. SUBSCRIPTIONS ARE $55 PER YEAR EXCEPT FOR LAW STUDENTS REGISTERED WITH THE OKLAHOMA BAR ASSOCIATION, WHO MAY SUBSCRIBE FOR $25. ACTIVE MEMBER SUBSCRIPTIONS ARE INCLUDED AS A PORTION OF ANNUAL DUES. ANY OPINION EXPRESSED HEREIN
IS THAT OF THE AUTHOR AND NOT NECESSARILY THAT OF THE OKLAHOMA
BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS.
TheOklahomaBarJournal
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2596
Vol. 78 — No. 28 — 10/13/2007
Oklahoma Bar Association
table of
contents
Oct. 13, 2007
• Vol. 78
• No. 28
page
2595 Events Calendar
2598 Index to Court Opinions
2599 Supreme Court Opinions
2635 Court of Civil Appeals Opinions
2659 OBA Legal Ethics Advisory Panel Issues Opinion
2663 OBA Annual Meeting 2007
2674 OBA Resolutions
2683 Title Examination Standards
2685 OBA Proposed 2008 Budget
2690 Mandates
2694Disposition of Cases Other Than By Publication
Vol. 78 — No. 28 — 10/13/2007
2597
Index To Opinions Of Supreme Court
2007 OK 73 STATE OF OKLAHOMA ex rel. CHARLES W. WRIGHT and RACHEL
LAWRENCE MOR, individuals and TAXPAYER CITIZENS OF THE STATE
OF OKLAHOMA, Plaintiffs/Appellants, v. OKLAHOMA CORPORATION
COMMISSION, a state agency, and COMMISSIONERS DENISE A. BODE, JEFF
CLOUD, BOB ANTHONY, and BROOKS MITCHELL, Director of the Oklahoma
Storage Tank Division, and BEN JACKSON, General Counsel Oklahoma Corporation
Commission, and CONOCOPHILLIPS COMPANY, an Oklahoma corporation,
Defendants/Appellees. STATE OF OKLAHOMA ex rel. OKLAHOMA CORPORATION COMMISSION, STATE OF OKLAHOMA ex rel. BROOKS MITCHELL,
Director of the Oklahoma Storage Tank Division; and, STATE OF OKLAHOMA
ex rel. ROBYN STRICKLAND, Administrator of the Oklahoma Petroleum Storage
Tank Release Environmental Cleanup Indemnity Fund, Plaintiffs/Appellees, v.
CONOCOPHILLIPS COMPANY, Defendant/Appellee, v. RACHEL LAWRENCE
MOR and CHARLES W. WRIGHT, Intervenors/Appellants. No. 101,605;
(Compan. w/101,606)........................................................................................................................ 2599
2007 OK 74 IN THE MATTER OF THE REINSTATEMENT OF DOUGLAS JEROME
“JERRY” FRALEY, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION
AND TO THE ROLL OF ATTORNEYS SCBD No. 5207............................................................. 2613
2007 OK 75 IRENE STEPHANIE THOMPSON, Plaintiff/Appellee, v. BAR-S FOODS
COMPANY, a Delaware corporation, Defendant/Appellant. No. 101,973............................... 2614
2007 OK 76 THERESA SPENCER, Plaintiff/Appellant, v. OKLAHOMA GAS &
ELECTRIC COMPANY, Defendant/Appellee. No. 103,404........................................................ 2622
2007 OK 77 CREST INFINITI II, LP, d/b/a CREST INFINITI, CREST INFINITI/
CADILLAC/ OLDS ISUZU; CREST AUTO GROUP, VAN ENTERPRISES, and VT,
INC., Petitioners, v. HONORABLE BARBARA G. SWINTON, DISTRICT JUDGE OF
THE 7th JUDICIAL DISTRICT COURT OKLAHOMA COUNTY, Respondent.
No. 104,884.......................................................................................................................................... 2628
Index To Opinions Of Court Of Civil Appeals
CASES ASSIGNED TO DIVISIONS 1 AND 3 OF THE COURT OF CIVIL APPEALS...........................2635
CASES ASSIGNED TO DIVISIONS 2 AND 4 OF THE COURT OF CIVIL APPEALS...........................2635
2007 OK CIV APP 93 STATE ex rel. DEPARTMENT OF PUBLIC SAFETY, Petitioner/
Appellee, v. THIRTY FOUR THOUSAND, FOUR HUNDRED EIGHTY-SIX
DOLLARS ($34,486.00) IN US CURRENCY, Respondent, and RAY MITCHELL
NORRIS, Appellant. No. 103,203..................................................................................................... 2636
2007 OK CIV APP 94 CHRISTOPHER STEHM, Plaintiff/Appellant, v. THE NORDAM
GROUP, INC., Defendant/Appellee. Case No. 104,000............................................................... 2637
2007 OK CIV APP 95 ANGELA NIDER, Plaintiff/Appellant, v. REPUBLIC PARKING,
INC., Defendant/Appellee. Case No. 103,441.............................................................................. 2640
2007 OK CIV APP 96 BRENDA KATHLEEN DEISE, Petitioner, v. MASTERCUTS/
REGIS CORP., THE HARTFORD INSURANCE CO. OF THE MIDWEST, and THE
WORKERS’ COMPENSATION COURT, Respondents. No. 104,306........................................ 2647
2007 OK CIV APP 97 IN THE MATTER OF S.A., S.T., J.T., and J.T., Deprived Children.
STATE OF OKLAHOMA, Petitioner/Appellee, v. JOE TAMBUNGA and LORI
TAMBUNGA, Respondents/Appellants. No. 104,333................................................................. 2652
2598
Vol. 78 — No. 28 — 10/13/2007
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)
2007 OK 73
STATE OF OKLAHOMA ex rel. CHARLES
W. WRIGHT and RACHEL LAWRENCE
MOR, individuals and TAXPAYER
CITIZENS OF THE STATE OF
OKLAHOMA, Plaintiffs/Appellants, v.
OKLAHOMA CORPORATION
COMMISSION, a state agency, and
COMMISSIONERS DENISE A. BODE, JEFF
CLOUD, BOB ANTHONY, and BROOKS
MITCHELL, Director of the Oklahoma
Storage Tank Division, and BEN JACKSON,
General Counsel Oklahoma Corporation
Commission, and CONOCOPHILLIPS
COMPANY, an Oklahoma corporation,
Defendants/Appellees. STATE OF
OKLAHOMA ex rel. OKLAHOMA
CORPORATION COMMISSION, STATE OF
OKLAHOMA ex rel. BROOKS MITCHELL,
Director of the Oklahoma Storage Tank
Division; and, STATE OF OKLAHOMA ex
rel. ROBYN STRICKLAND, Administrator
of the Oklahoma Petroleum Storage Tank
Release Environmental Cleanup Indemnity
Fund, Plaintiffs/Appellees, v.
CONOCOPHILLIPS COMPANY, Defendant/
Appellee, v. RACHEL LAWRENCE MOR
and CHARLES W. WRIGHT, Intervenors/
Appellants.
No. 101,605; (Compan. w/101,606).
October 2, 2007
AS CORRECTED: October 3, 2007
ON CERTIORARI TO THE OKLAHOMA
COURT OF CIVIL APPEALS, DIV. II
OKLA. SUP. CT. NO. 101,605
ON CERTIORARI TO THE OKLAHOMA
COURT OF CIVIL APPEALS, DIV. II
OKLA. SUP. CT. NO. 101,606
¶0 In Okla. Sup. Ct. No. 101,605, taxpayers sought a qui tam remedy against the
Corporation Commission and others in
the District Court for Oklahoma County where they challenged a settlement
agreement between the Commission
and Phillips Petroleum Company. The
Vol. 78 — No. 28 — 10/13/2007
defendants filed motions to dismiss the
qui tam proceeding, and the Hon. Barbara Swinton, District Judge, sustained
those motions. Taxpayers appealed and
the Court of Civil Appeals reversed the
dismissal order. The Commission and
others sought certiorari from this Court.
In Okla. Sup. Ct. No.101,606, the Corporation Commission brought a declaratory judgment action in the District
Court for Oklahoma County and
requested judicial approval of its settlement agreement with Phillips Petroleum Company and taxpayers sought
to intervene. The Hon. Barbara Swinton, District Judge, denied taxpayers’
motion to intervene and they appealed.
The Court of Civil Appeals reversed
the order denying the motion to intervene. ConocoPhillips Company sought
certiorari from this Court. We hold
that: (1) The Petroleum Storage Tank
Release Environmental Cleanup Indemnity Fund contains state funds; (2) The
officials’ declaratory judgment proceeding was not sufficient to make the
taxpayers’ qui tam remedy premature
as a matter of law when the declaratory
judgment proceeding did not present
for judicial review the facts and law of
the controversy submitted by taxpayers’ written demand letter; (3) The qui
tam petition was sufficient against a
challenge that it failed to state a claim
upon which relief may be granted when
the petition alleged that (a) that state
funds were paid upon claims that the
officials knew were not legally due, (b)
that an audit by the State Auditor and
Inspector had informed officials that
payment had been made without
authority, (c) that officials had been
coerced to make payments that were
not authorized by law, and (d) that the
officials’ declaratory judgment proceeding was an improper response to
their written demand letter; (4) A qui
tam plaintiff’s motion to intervene in
2599
an official’s declaratory judgment proceeding based upon the insufficiency
of the declaratory judgment petition is
not barred by the good-faith presumption of officials in seeking declaratory
relief; and (5) A motion to dismiss a
petition for its failure to state a claim
upon which relief may be granted is
not converted to a motion for summary
judgment by the nonmovant’s reliance
upon materials outside of the pleadings when the movant does not rely on
matters outside the pleadings and challenges the sufficiency of the petition.
CERTIORARI PREVIOUSLY GRANTED IN
CAUSE NOS. 101,605, 101,606.
IN CAUSE NO. 101,605 OPINION OF
THE COURT OF CIVIL APPEALS IS
VACATED AND THE DISTRICT COURT
ORDER SUSTAINING MOTIONS TO
DISMISS IS REVERSED AND THE
MATTER IS REMANDED FOR FURTHER
PROCEEDINGS
IN CAUSE NO. 101,606 OPINION OF
THE COURT OF CIVIL APPEALS IS
VACATED AND THE DISTRICT COURT
ORDER DENYING A MOTION TO
INTERVENE IS REVERSED AND THE
MATTER IS REMANDED FOR FURTHER
PROCEEDINGS
David Pomeroy, Terry Stokes, Fuller, Tubb,
Pomeroy & Stokes, P.C., Oklahoma City, Oklahoma, for Plaintiffs/Appellants in No. 101,605,
and for Intervenors/Appellants in No.
101,606.
Kieran D. Maye, Jr., Miller Dollarhide, Oklahoma City, Oklahoma, for Defendant/Appellees Oklahoma Corporation Commission,
Commissioner Denise A. Bode, Commissioner
Jeff Cloud, Commissioner Bob Anthony, Brooks
Mitchell, and Ben Jackson in No. 101,605, and
for Plaintiffs/Appellees in 101,606.
Rob F. Robertson, Dennis C. Cameron, Gable &
Gotwals, Oklahoma City, Oklahoma for Appellee ConocoPhillips Company in 101,605 and
Defendant/Appellee in 101,606.
EDMONDSON, V. C. J.
¶1 This case involves procedural issues in a
qui tam proceeding and a related declaratory
judgment proceeding. The first order brought
for appeal is a district court order granting a
motion, without prejudice, that sought dis2600
missal of a taxpayer qui tam remedy sought
against the Oklahoma Corporation Commission and other defendants.1 The second order
brought before us on appeal is a district court
order denying those same taxpayers’ motion to
intervene in a related declaratory judgment
proceeding brought by the Oklahoma Corporation Commission that sought judicial approval of a settlement agreement made by the Corporation Commission and others.2 We address
both appeals with a single opinion.3
¶2 The Oklahoma Legislature created the
Petroleum Storage Tank Release Indemnity
Program in 1989. Oklahoma Statutes Title 17
§§350 – 358, inclusive.4 The Indemnity Program
created the Petroleum Storage Tank Release
Environmental Cleanup Indemnity Fund
(Indemnity Fund) to pay statutorily specified
expenses related to rehabilitating sites polluted
by petroleum from petroleum storage tank
systems. 17 O.S. §§352(5), 353.
¶3 Phillips Petroleum Company, now ConocoPhillips Company (and herein Phillips),
between 1991 and 1998 filed claims for reimbursement from the Indemnity Fund and was
paid approximately 2.9 million dollars. In 2000
Phillips filed twenty-seven claims for additional payments from the Indemnity Fund.
Employees of the Corporation Commission
determined that Phillips was entitled to an
additional $940,000, approximately, and this
amount was paid.
¶4 The total amount requested by Phillips
was in excess of 5.9 million dollars, but it
received only $3,941,170.00. Phillips pressed
the Commission for additional payment on its
claims. The State Auditor and Inspector
reviewed the amounts paid to Phillips
and determined that of the $3,941,170.00 paid
to Phillips only $2,924,346.00 was within the
pertinent statutory authority, and that
$1,026,824.00 was questioned as an
unauthorized overpayment.
¶5 Phillips pressed for additional payment
on its claims. In August of 2003 Brooks Mitchell, Director of the Storage Tanks Division, and
Ben Jackson, General Counsel for the Oklahoma Corporation Commission, agreed to pay
Phillips an additional 3.6 million dollars from
the Indemnity Fund. In August of 2003 the
agreement was executed authorizing payment
of an additional 3.6 million dollars in monthly
installments, and Phillips agreed to refrain
from pressing for additional payments.
Vol. 78 — No. 28 — 10/13/2007
¶6 Taxpayers allege that prior to the 3.6 million-dollar payment, new Commission employees became involved with the “leadership” of
the Indemnity Fund and the Petroleum Storage
Tanks Division. They allege in their Petition
that the Commissioners, Commission management, including Brooks Mitchell, Director of
the Storage Tanks Division, and Ben Jackson,
General Counsel for the Corporation Commission, “were repeatedly informed by their legal
counsel of the findings of the State Auditor that
. . . Phillips’ claims had been more than fully
paid and no further payment was authorized
by statute or other authority.”
¶7 Taxpayers allege that the impropriety of
the settlement agreement includes (1) payment
on a case in which the Commission entered an
order denying Phillips’ claim, that order having been affirmed on appeal to the Oklahoma
Supreme Court and mandate previously issued,
(2) payment for cases where not statutorily
authorized, (3) payment on claims where there
was no qualifying documented release of petroleum into the environment, (4) payment for
attorney fees and litigations costs when the
cases were not litigated, and (5) payment for
landscaping and other nonenvironmental
cleanup costs.
¶8 In July, 2004, Taxpayers sent to the Corporation Commission and the individual Commissioners a Tax Payer Demand — Qui Tam
Notice demanding that the Commission rescind
the agreement and reclaim funds paid to Phillips in violation of Oklahoma law. The demand
letter states that the State Auditor and Inspector questioned $1,026,824.00 as an unauthorized payment to Phillips and that the Commission had improperly agreed to pay an additional 3.6 million dollars to Phillips.
¶9 In support of their view that funds had
been improperly paid to Phillips, Taxpayers’
demand letter alleges that the 3.6 million
included payment for a claim that the Commission had previously denied, which order “had
been affirmed on appeal to the Oklahoma
Supreme Court.” They also allege that the settlement agreement provided for payment “on
cases for which reimbursement is statutorily
not permitted, such as attorney fees, litigation
costs, landscaping and other non-environmental clean-up costs.” The demand letter also
alleges that the settlement agreement improperly paid Phillips for sites and claims not eligible for reimbursement from the Indemnity
Fund. The demand letter states that Officers of
Vol. 78 — No. 28 — 10/13/2007
the Commission “entered into the settlement
agreement permitting the transfer of state environmental funds for claims which were ‘...
known to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement.’ ”
¶10 In August of 2004, the Corporation Commission filed a Petition for Declaratory Judgment in the District Court of Oklahoma County.
The petition alleged that Phillips filed claims in
excess of $7,000,000.00 against the Indemnity
Fund for reimbursement of expenses involved
relating to forty-six retail fuel outlets. The
claims had been previously disallowed by the
Indemnity Fund. The petition states that the
parties reached a settlement agreement by
which the Indemnity Fund would pay Phillips
3.6 million dollars in monthly installments and
Phillips would dismiss its pending claims. The
Indemnity Fund and Phillips also agreed to a
mutual dismissal of an appeal pending before
the Oklahoma Supreme Court.
¶11 The petition states that after extensive
evaluation of Phillips’ claims, with the assistance of a mediator, the Indemnity Fund and
Phillips “reached a settlement agreeing upon a
fair and reasonable value of the services in
question and resolving all disputes for all
claims that were the subject of the mediation.”
The petition states that the settlement resolved
claims “which could have exceeded
$9,000,000.00 inclusive of interest, costs and
attorney’s fees.”
¶12 The petition states that the Commission
and its Commissioners had received a letter
demanding that the agreement be rescinded
and that the Commission “reclaim all environmental funds which had been paid to Phillips
as a result of the Settlement Agreement which
the demanders contend was made in violation
of Oklahoma law.” It also states that the claims
asserted in the written demand “have raised
certain questions which need resolution.” The
petition does not state what those “certain
questions” are or otherwise identify the specific nature of the claims made by the taxpayers. The Settlement Agreement is attached as
an exhibit to the petition but the demand letter
is not. Phillips answered and claimed that the
settlement agreement should be enforced. Taxpayers sought to intervene in the declaratory
judgment action brought by the Corporation
Commission. Taxpayers alleged that the settlement was “illegal,” “fraudulent,” and a “sham”
because the Commission and Phillips had ear-
2601
lier agreed to “settle” the claims for 3.6 million,
and that the Settlement Agreement was the
result of “clandestine meetings, mistreatment
of Commission employees, and manipulating a
sham mediation leading” to the Settlement
Agreement.5 Both Phillips and the Corporation
Commission objected to the intervention.
¶13 Shortly after the Commission filed its
declaratory judgment action the Taxpayers
sought a qui tam remedy in a different District
Court proceeding. They sought relief against
the Oklahoma Corporation Commission, the
three Commissioners, the Director of the Storage Tank Division, the General Counsel for the
Corporation Commission, and Phillips. The
Corporation Commission defendants and Phillips sought dismissal of the qui tam request.
The District Court granted their motions to
dismiss and denied the Taxpayers’ motion to
intervene in the Corporation Commission’s
declaratory judgment action.
¶14 The taxpayers appealed both orders, and
both were reversed by the Court of Civil
Appeals by unpublished opinions. Although
our conclusions lead us to the same result
reached by appellate court, we granted certiorari to address the first-impression questions
raised by the parties that involve the public
nature of the Petroleum Storage Tank Release
Environmental Cleanup Indemnity Fund.6
¶15 Phillips sought dismissal of the qui tam
proceeding based upon 12 O.S. §2012(B)(6) and
(8). In support of its §2012 (B)(6) dismissal
request, Phillips argued that the qui tam action
was premature because the Corporation Commission had filed a declaratory judgment action
against Phillips and that qui tam was improper
because the funds at issue did not belong to the
State of Oklahoma. In support of its §2012(B)(8)
request, Phillips argued that the declaratory
judgment action was pending and would determine the validity of Corporation Commission’s
conduct that was challenged by the qui tam
action. The Corporation Commission sought
dismissal of the qui tam request and argued
that (1) the Petition failed to state a claim upon
which relief can be granted, (2) the Plaintiffs
lacked standing, (3) another action was pending “between the true and proper parties in
interest to the issues underlying this action,”
and (4) the Corporation Commission defendants were “not parties to the settlement agreement attacked by plaintiffs’ Petition and have
no authority over said agreement.”
2602
¶16 On certiorari Phillips argues that (1) the
Indemnity Fund does not contain state funds
or funds belonging to the state, (2) dismissal of
the qui tam action is required because of this
Court’s holdings in City of Oklahoma City v.
Oklahoma City Urban Renewal Authority, 1999
OK 71, 988 P.2d 901 (Tal I ) and State ex rel. Tal
v. Norick, 1999 OK 85, 991 P.2d 999 (Tal II ), and
(3) the appellate court incorrectly applied a
standard of review appropriate for a summary
judgment motion instead of one for a motion to
dismiss. Similar arguments are made by the
Corporation Commission in its petition for certiorari. We address both petitions for certiorari
in the order presented by Phillips.
¶17 A qui tam request is one brought under a
statute that establishes a penalty for the commission or omission of a certain act and provides that the penalty shall be recoverable in a
civil action, with part of it going to the one
bringing the action and the rest to the state or a
public body. State ex rel. Trimble v. City of Moore,
1991 OK 97, n. 1, 818 P.2d 889, 891 and 894.
Resident taxpayers of a state governmental
unit may, in the name of the State of Oklahoma
as plaintiff, seek qui tam relief under 62 O.
S.2001 §§372 and 373 7 to recover money or
property belonging to that governmental unit
that was paid out or transferred illegally or
without authority. Trimble, 818 P.2d at 894.
These statutes transform a private citizen and
taxpayer into a representative of the state for
the purpose of protecting the governmental
unit’s property rights. Id. Phillips and the Commission argue that the Petroleum Storage Tank
Release Environmental Cleanup Indemnity
Fund contains no property belonging to the
State of Oklahoma and a qui tam request for
relief is thus improper.
I. Indemnity Funds Are State Funds
¶18 The Indemnity Fund was created by the
Legislature in 1989,8 and is now codified at 17
O.S.Supp.2006 §353.9 Although §353 has been
amended several times,10 the statutory sources
for the money deposited in the fund has
remained constant since 1989. Section 353 identifies the sources of Indemnity Funds as follows:
D. The Indemnity Fund shall consist of:
1. All monies received by the Commission
as proceeds from the assessment imposed
pursuant to Section 354 of this title;
Vol. 78 — No. 28 — 10/13/2007
2. Interest attributable to investment of
money in the Indemnity Fund; and
3. Money received by the Commission in
the form of gifts, grants, reimbursements,
or from any other source intended to be
used for the purposes specified by or collected pursuant to the provisions of the
Oklahoma Petroleum Storage Tank Release
Indemnity Program.
17 O.S.Supp. 2006 §353(D).
¶19 The assessment imposed pursuant to
§354 is “an assessment of one cent ($0.01) per
gallon upon the sale of each gallon of motor
fuel, diesel fuel and blending materials used or
consumed in this state.” 17 O.S.Supp.2006 §354
(A). The §354 assessment of one cent ($0.01)
per gallon is precollected and remitted to the
Oklahoma Tax Commission in accordance with
the provisions of the Motor Fuel Tax Code (68
O.S. §500.1, et seq.). 17 O.S.Supp. 2006 §354 (A).
The motor fuel tax is a direct tax on the ultimate consumer of the fuel and, like the §354
assessment, is precollected before the sale to
the ultimate consumer.11 The assessment is precollected by “every supplier, licensed importer
or any other appropriate person . . . .” 17 O.
S.2001 §355(A). The legislative intent is that the
Oklahoma Petroleum Storage Tank Release
Indemnity Program be funded by an assessment on the sale of motor fuel, diesel fuel, and
blending materials in this state by a distributor.
17 O.S.Supp. 2006 §351(A)(7).
¶20 The §354 assessment of one cent ($0.01)
per gallon is currently12 distributed this way:
(1) First one million dollars in a fiscal year to
the Corporation Commission Revolving Fund,
(2) Eight per cent of the remaining money to
the Department of Environmental Quality
Revolving Fund, (3) Twenty-five per cent of the
money remaining after (1) and (2) to the Higher
Education Facilities Revolving Fund until the
amount deposited since July 1, 2002, totals
thirty-eight million dollars, and (4) Seventyfive per cent of the remaining after (1) and (2)
to the Petroleum Storage Tank Indemnity Fund.
17 O.S.Supp. 2006 §354(C)(1-4). This formula is
modified upon certain events and amounts are
distributed to the Corporation Commission
Storage Tank Regulation Revolving Fund (17
O.S.Supp. 2006 §315), the State Transportation
Fund for matching Federal-Aid funds, and
additional amounts to the Petroleum Storage
Tank Indemnity Fund. 17 O.S.Supp. 2006 §354
(C)(5) & (D).
Vol. 78 — No. 28 — 10/13/2007
¶21 The Oklahoma Attorney General, through
an Assistant Attorney General, filed an amicus
curiae brief with the District Court and
addressed the issue of the nature of the Indemnity Fund. The brief describes the Indemnity
Fund as containing public money funded by a
one penny gasoline tax. In support of this conclusion that the one-cent assessment creates a
public fund, the brief points out the creation of
the Higher Education Facilities Revolving Fund
and its use to pay for construction of a weather
center at the University of Oklahoma and for
facilities on the campus at Oklahoma State
University. In 2002 the Legislature created “in
the State Treasury a revolving fund for the
Department of Central Services to be designated the ‘Higher Education Facilities Revolving Fund’” and the one-cent assessment paid
to this Fund is for purposes described by the
amicus curiae brief. 74 O.S.Supp. 2006 §110.4;
2002 Okla. Sess. Laws Ch. 23, §§1-2.
¶22 Neither Phillips nor the Corporation
Commission challenges the one-cent assessment as creating state funds that are distributed to the Corporation Commission Revolving
Fund, the Department of Environmental Quality Revolving Fund, and the Higher Education
Facilities Revolving Fund. They do not expressly argue that the public nature of these funds
somehow loses its character as state funds
when distributed to the Indemnity Fund.
Instead, they rely upon a statute, 17 O.S.Supp.
2006 §353(E)(1), and a comparison of the
Indemnity Fund with the State Insurance Fund,
now CompSource Oklahoma.13
¶23 Section 353(E)(1) states the following.
E. 1. The monies deposited in the
Indemnity Fund shall at no time become
monies of the state and shall not become
part of the general budget of the Commission or any other state agency. Except as
otherwise authorized by the Oklahoma
Storage Tank Regulation Act and the Oklahoma Petroleum Storage Tank Release
Indemnity Program, no monies from the
Indemnity Fund shall be transferred for
any purpose to any other state agency or
any account of the Commission or be used
for the purpose of contracting with any
other state agency or reimbursing any
other state agency for any expense.
Phillips and the Commission emphasize the
language: “The monies deposited in the Indemnity Fund shall at no time become monies of
2603
the state . . . .” Of course, this language shows
legislative intent, but a mere legislative declaration that particular funds are not monies of
the state is not, by itself, determinative of the
issue.14
¶24 One of the circumstances we examine is
the identity of the owner of the funds at issue.
State ex rel. Twist v. Bailey, 1956 OK 103, ¶4, 295
P.2d 763, 765. While the Commission and Phillips deny ownership interest in these funds by
the State of Oklahoma, they do not state what
entity owns such funds. They argue that the
funds are distributed to the Petroleum Storage
Tank Release Environmental Cleanup Indemnity Fund. But nothing in the Petroleum Storage Tank Release Indemnity Program indicates
that the Indemnity Fund is anything other than
a specified account for holding money to be
distributed according to the indemnity program. The Indemnity Fund cannot own the
funds distributed to the Indemnity Fund unless
it is an entity as well as an account. The Indemnity Fund is maintained, operated, and administered by the Corporation Commission, a
constitutional agency of the State created by
Okla. Const. Art 9 §15.
¶25 We also examine the nature of the transaction that generated the funds at issue. For
example, in Moran v. State ex rel. Derryberry,
1975 OK 69, 534 P.2d 1282, we examined the
nature of the transaction that generated funds
for the State Insurance Fund. We said, “It
appears to be agreed, or conceded, that no
State appropriation has ever been used by the
State Insurance Fund.” Id. 534 P.2d at 1285. We
then noted that the Insurance Fund entered
into contracts of insurance and received
premiums as payment for the insurance
issued.15
¶26 In the case before us, a mandatory
assessment is made upon those required to pay
the motor fuel tax. 17 O.S.Supp. 2006 §354 (A).
Do those required to pay the assessment receive
consideration for their assessment payment
similar to the employers purchasing insurance
in Moran? Nothing in the Petroleum Storage
Tank Release Indemnity Program shows such
consideration. Additionally, §354(A) describes
the assessment as “precollected” in accordance
with the Motor Fuel Tax Code. That Code
imposes a tax that is “precollected” from the
ultimate consumer and not those remitters
required to make the tax payments to the Tax
Commission. 68 O.S.2001 §500.2 (A) & (C).16
2604
¶27 Phillips and the Commission argue that
funds in the Indemnity Fund are not subject to
appropriation by the Legislature for purposes
other than the Indemnity Fund, and this proves
the funds are not state funds. They regard the
language in §354 (E)(1) that the funds “shall
not become part of the general budget of the
Commission or any other state agency” as a
limitation on legislative action. We do not view
this language as a limitation upon the Legislature. It is a well-known principle of statutory
and constitutional construction that one Legislature cannot bind another.17 Instead, the language limits the actions of state officials charged
with administering the Indemnity Fund and
states how the funds in the Fund should be
regarded for state budgetary purposes.
¶28 Money in the Indemnity Fund must be
owned by someone, some entity. With the Corporation Commission, a constitutional agency
of the State, administering those funds for the
purposes required by the Petroleum Storage
Tank Release Indemnity Program, the money
in the Indemnity Fund belongs to the State of
Oklahoma.
II. The Tal Opinions
¶29 Phillips and the Corporation Commission argue that dismissal of the taxpayers’ qui
tam action is required because of this Court’s
holdings in City of Oklahoma City v. Oklahoma
City Urban Renewal Authority, 1999 OK 71, 988
P.2d 901 (Tal I ), State ex rel. Tal v. Norick, 1999
OK 85, 991 P.2d 999 (Tal II ), and related opinions. They argue that taxpayers had no right to
prosecute an action on behalf of the state
because the Corporation Commission brought
a declaratory judgment action testing the validity of its agreement with Phillips. Taxpayers
respond and argue that the Corporation Commission and Phillips are seeking to uphold the
agreement via the declaratory judgment proceeding, and arguments against the agreement
have not been advanced by the Corporation
Commission for judicial review. Taxpayers
argue that they should be allowed to intervene
in the Commission’s declaratory judgment
proceeding and be allowed to prosecute a qui
tam remedy.
¶30 In five recent opinions the Court discussed a taxpayer’s demand upon a public
body, the public body’s response thereto by filing a declaratory judgment action, a taxpayer’s
response by seeking to intervene in the declaratory judgment proceeding, and the taxpayer’s
Vol. 78 — No. 28 — 10/13/2007
subsequent qui tam proceeding filed as a separate action.18 Therein, although the parties to
the declaratory judgment proceeding agreed
that the public contracts at issue were lawful,
such agreement did not deprive the declaratory judgment proceeding of its justiciable character when the issues presented were not
feigned or collusive by those seeking to uphold
the public contracts. State ex rel. Moshe Tal v.
City of Oklahoma City, 2002 OK 97, ¶8, 61 P.3d
234, 241 (Tal IV), citing City of Oklahoma City v.
Oklahoma City Urban Renewal Authority, 1999
OK 71, ¶29, 988 P.2d 901, 907 (Tal I).
¶31 In State ex rel. Moshe Tal v. Norick, 1999
OK 85, 991 P.2d 999 (Tal II), we concluded that
a taxpayer qui tam proceeding was filed prematurely because a pending declaratory judgment
proceeding was filed in response to the taxpayers’ written demand. The Corporation Commission and Phillips make a similar argument.
However, our conclusion in Tal II was based
upon more than the mere fact that declaratory
judgment proceeding had been filed. The
record showed that the same claims of allegedly wrongful conduct were presented for
adjudication in both the declaratory judgment
proceeding and the subsequent qui tam proceeding. Tal II, 1999 OK 85, at ¶¶8-9, 991 P.2d at
1001.
¶32 In the Tal cases, we examined whether
the facts and applicable law of the controversy
were before the trial court for it to consider
when adjudicating the merits of the controversy. The taxpayers argued that the facts and
law were not before the trial court in the
declaratory judgment proceeding and that they
should be allowed to intervene and press for
qui tam relief. In Tal I the taxpayers claimed that
the city’s suit was non-responsive to the taxpayers’ demand because the city failed to support the taxpayers’ claims. 1999 OK 71, ¶18,
988 P.2d at 906. We held, correctly we think,
that the city was not required to do so. Id.
However, we distinguished between the taxpayers’ factually unsupported conclusions
which the city need not follow and facts material to the controversy that were required for
the trial court to have before it to adjudicate the
controversy.
¶33 When we rejected the taxpayers’ argument that the city’s suit was non-responsive,
we relied upon State, Bd. Com’rs Pontotoc County ex rel. Braly v. Ford, 1941 OK 270, 116 P.2d 988.
Tal I, at ¶17, 988 P.2d at 906. In Braly the taxpayers alleged that a county treasurer expended
Vol. 78 — No. 28 — 10/13/2007
money from a sinking fund in an allegedly
unlawful manner for certain securities. Braly,
116 P.2d at 989. The same day that the taxpayers’ demand was made to the board of commissioners the board directed the county attorney
to institute suit against the treasurer, and the
county attorney immediately ordered an audit.
Id. Prior to completion of the audit the taxpayers sued, and then upon the audit’s completion
the county attorney filed an action against the
treasurer. Id. 116 P.2d at 989.
¶34 We stated that “diligence on the part of
the proper officials in prosecuting the action
after the statutory demand is a matter of
defense against the taxpayer’s [qui tam] action.”
Braly, 116 P.2d at 990. We also explained that
public officials are presumed, in the absence of
any showing to the contrary, to be ready and
willing to perform their duties. Id. We affirmed
the dismissal of the qui tam claim because “The
evidence fully supports the court’s finding that
the officers had not failed to act diligently in
instituting and presenting the suit on behalf of
the county.” Braly, 116 P.2d at 992. In Braly the
taxpayers’ lack of a qui tam remedy was based
upon the character of the officials’ actions as
shown by the evidence before the trial court.
¶35 In Tal I we also distinguished State ex rel.
Lockhart v. Board of Com’rs of Lincoln County,
1946 OK 291, 173 P.2d 725, because in Tal I certain facts were before the trial court when it
adjudicated the merits of the controversy, and
no contrary facts were raised in the trial court
in support of certain conclusory allegations
raised in the written demand letter. Tal I, at
¶19, 988 P.2d at 906. For example, our discussion includes the following:
Here the issue is much different from the
issue involved in Lockhart. The case has
been tried and the record developed supports the trial court’s finding that the property at issue was sold at its fair market
value and that the protections for the public to safeguard its interests spelled out in
the Agreements were adequate. This ends
the inquiry and T.A.R.’s [taxpayers’] expression of a contrary opinion in its Demand,
without factual support, does not change
the result.
Tal I, 1999 OK 71, ¶19, 988 P.2d 901.
In Tal I the taxpayers’ possessed no right to
intervene in the declaratory judgment proceeding where the controversy and the facts material to that controversy were before the trial
2605
court in a form that the trial court could
consider when making its decision on the
merits.
¶36 In explaining that a controversy was
before the trial court, although the parties
sought the same relief, we cited opinions from
Wyoming, Idaho, and New Jersey. Tal I, at
¶¶25 -28, 988 P.2d at 907. In Brimmer v. Thomson, 521 P.2d 574 (Wyo.1974), although the
actual litigants before the trial court held a
similar view on the controversy, the opposing
view was before the trial judge in the form of a
previous attorney general’s opinion, and the
issue did not turn on an issue of fact. Tal I, at
¶¶25 -26, 988 P.2d at 907. See Brimmer, 521 P.2d
at 577, where the court stated that “the matter
of the controversy and adversity is presented
by the attachment of Exhibit A, a copy of the
[attorney general’s] opinion, to said complaint
. . . .” Similarly, in State ex rel. Miller v. State
Board of Education, 56 Idaho 210, 52 P.2d 141
(1935), the controversy did not turn on an issue
of fact, but on three questions of law. Id. 52 P.2d
at 142. In New Jersey Power & Light Company, 45
N.J. 237, 212 A.2d 136, 139 (1965), the appellate
court required the services of an amicus curiae
at the expense of one of the parties to assure
that “that all recesses of the problem will be
earnestly explored” in presenting the issues. Id.
212 A.2d at 139.
¶37 The Tal opinions indicate that when a
public body receives the written demand letter,
one of the appropriate responses may be to
bring a declaratory judgment proceeding to
adjudicate the legality of the issues raised by
the demand letter. The declaratory judgment
proceeding may be deemed, as a matter of law,
to be an appropriate response because officials
are entitled to the presumption that their action
in seeking declaratory judgment is in good
faith. State ex rel. Moshe Tal. v. City of Oklahoma
City, 2000 OK 70, ¶4, 19 P.3d 268, 271, cert.
denied, 534 U.S. 814, 122 S.Ct. 40, 151 L.Ed.2d 13
(2001). In State, Bd. Com’rs Pontotoc County ex
rel. Braly v. Ford, supra, one of the issues was the
diligence of the officials in bringing an action
after receiving a demand letter. Braly, 116 P.2d
at 990 – 992. A recurring issue in the Tal opinions is similar, but not identical; i.e., the diligence of the officials’ representation of the
alleged illegal official acts in the declaratory
judgment proceeding. In the Tal cases, the taxpayers failed to show that the facts material to
the legality of the issues were not presented to
the trial court for it to consider when adjudicat2606
ing the merits of the claimed legality or illegality. Tal I and Tal II, supra. For additional example, we specifically noted in Tal IV that the
taxpayers failed to assert that the public body
failed to raise any substantive issue arising
from the allegations of the taxpayers’ written
demand upon the public body that related to
the lawfulness of the challenged acts of the
public body. Tal IV, 2002 OK 97, at ¶8, 61 P.3d
234, at 241.
¶38 The same diligence required of public
officials we recognized in Braly is equally
applicable when the action brought by officials
is seeking declaratory judgment in response to
a demand letter. Of course, the officials may
seek to judicially validate the conduct challenged by the taxpayers, and they are not
required to repeat factually unsupported conclusory allegations from the taxpayers’ demand
letter. Tal I, 1999 OK 71, ¶18, 988 P.2d at 906.
However, the officials’ declaratory judgment
proceeding must put before the trial court the
substance of the taxpayers’ material factual
allegations showing illegality.
¶39 In the matter before us, whether Taxpayers’ qui tam proceeding was premature is based
upon the appropriateness of the officials’
actions in response to the written demand.
Braly, supra. Clearly, a declaratory judgment
proceeding brought by officials in response to
a demand letter is one of many procedurally
appropriate responses. Tal II, supra. While officials are not required to adopt all of taxpayers’
arguments and seek judicial invalidation of
their previous actions, the officials’ declaratory
judgment proceeding must present the material facts of the controversy and applicable law
before the trial court in a judicially cognizable
form.
¶40 The Commission’s petition for declaratory judgment states that a Settlement Agreement was reached with Phillips. It also states
that a written demand letter was delivered to
the Commission and the Commissioners and
that the letter alleges that the Settlement Agreement permitted “the transfer of state environmental funds for claims which were ‘. . . known
to be fraudulent or void, or in pursuance of any
unauthorized, unlawful or fraudulent contract
or agreement.’ 62 O.S. §372.” The petition
states that the taxpayers demanded that the
Commission rescind the Settlement Agreement. The petition states that the demand letter
“raised certain questions which need resolution” and an “actual controversy” has arisen
Vol. 78 — No. 28 — 10/13/2007
because of the demand letter. The petition does
not identify these questions. The Settlement
Agreement is attached to the petition as an
exhibit.
must put those facts before the trial court in a
manner sufficient to give the defendant and
the trial court fair notice of the nature of the
controversy raised by a demand letter.
¶41 The declaratory judgment petition contains many allegations for the purpose of
showing that the Settlement Agreement should
not be rescinded. The petition cites several statutes for the purpose of showing the Settlement
Agreement is not invalid. It cites case law and
statutes for an argument that the Indemnity
Fund contains no state funds and that taxpayers’ threatened qui tam action is improper. The
petition contains allegations relating to circumstances leading up the Settlement Agreement,
and why the Settlement Agreement should be
considered advantageous to the state.
¶44 Two reasons require this result. First, a
matter is proper for declaratory relief only
when an actual justiciable controversy is presented for adjudication. Cherokee Nation v.
Nomura, 2007 OK 40, n. 9, 160 P.3d 967. Second,
the procedure for presenting a justiciable controversy is to present material facts and law to
the trial court by pleading and evidence. For
example, we recently stated the following.
¶42 None of the facts relied upon by the taxpayers for showing illegality are in the declaratory judgment petition. The petition does not
mention the allegation that the State Auditor
and Inspector performed an audit of Phillips’
claims, and that of the initial 3.9 million dollars
paid approximately one million dollars was
questioned by the State Auditor and Inspector
as an overpayment. The petition does not mention the allegation that Phillips did not submit
claims with statutorily required information
for payment from the Indemnity Fund. The
petition does not mention that many of the
claims by Phillips had been previously denied
by the Commission acting through certain
employees, after which Phillips resubmitted
these claims to different Commission
employees who approved their payment via a
settlement agreement.
¶43 Taxpayers make several allegations relating to ex parte meetings between representatives of Phillips and one of the Commissioners
while administrative claims were pending,
change in employees of the Commission, meetings of Phillips’ representatives and a state
senator, and other allegations all for the purpose of showing bad motives, or at least a
motive other than one for payment of legitimate claims. An official’s declaratory judgment
proceeding need not put forward allegations of
motive where motive is not an element of the
taxpayer’s alleged action showing an unauthorized, or unlawful, or fraudulent contract.
But, as here, where taxpayers allege facts in
support of statutory violations pertaining to
payment of public funds, and allege facts from
an audit by a government official charged with
making audits of public funds, the officials
Vol. 78 — No. 28 — 10/13/2007
We have stated that declaratory relief is
based upon the existence of a justiciable
controversy. City of Oklahoma City v. Oklahoma City Urban Renewal Authority, 1999
OK 71, ¶28, 988 P.2d 901, 907; Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d
1069, 1073. The term “justiciable” refers to
a lively case or controversy between antagonistic demands. Lawrence v. Cleveland
County Home Loan Authority, 1981 OK 28,
626 P.2d 314, 315. When a party presents
antagonistic demands that are merely speculative a prohibited advisory opinion is
being requested. State ex rel. Oklahoma Capitol Imp. Authority v. E. A. Cowen Const. Co.,
1974 OK 4, 518 P.2d 1264, 1266; Post Oak Oil
Co. v. Stack & Barnes, P.C., 1996 OK 23, 913
P.2d 1311, 1314.
House of Realty, Inc. v. City of Midwest City, 2004
OK 97, ¶12, 109 P.3d 314, 318.
The material facts and law relied on by the taxpayers in their written demand provide the
“antagonistic demands” that are before the
trial court in an officials’ declaratory judgment
proceeding, although the actual relief sought
may be to judicially validate the officials’ prior
action that is challenged by the taxpayers.
These antagonistic demands show that the officials’ declaratory judgment request is not a
prohibited advisory opinion.
¶45 The material facts in the written demand
may be, but are not required to be, quoted verbatim in the officials’ petition for declaratory
relief. This is so because notice pleading does
not require pleading every fact upon which a
claim is based, but merely a short and plain
statement of the claim that will give fair notice
of what the plaintiff’s claim is and the grounds
upon which it rests.19 Merely pleading that a
controversy exists without mentioning any of
the facts relied on by the taxpayers in alleging
2607
an unlawful agreement does not provide the
trial court with sufficient facts to identify an
actual controversy to adjudicate. Where the
legality of officials’ conduct turns on a question
of law, as in Brimmer v. Thomson, supra, the officials are to inform the trial court of the nature
of that dispute; and when the legality of officials’ conduct turns on a question of fact, those
facts must be before the trial court in such form
that the trial court can consider them when
adjudicating the merits of the petition for
declaratory judgment.20
¶46 In summary, officials may use a declaratory judgment proceeding for the purpose of
testing the legality of their prior actions after
they have been challenged by a taxpayer’s
written demand. However, the procedural
vehicle of declaratory relief has a substantive
standard as well; it must include, at a minimum, a short and plain statement of the taxpayer’s challenge that will give fair notice of
the nature of the controversy that the trial court
is being requested to adjudicate. In the matter
before us the declaratory judgment petition
and answer did not contain the taxpayers’
demand letter or otherwise plead the nature of
the taxpayers’ challenge to the settlement
agreement. The declaratory judgment request
by the officials is insufficient to make taxpayers’ qui tam petition premature. Tal I, supra, and
Tal II, supra.
III. The Qui Tam Petition,
Intervention, and Remand
¶47 Phillips and the Corporation Commission argue on certiorari that the Court of Civil
Appeals incorrectly construed their motions to
dismiss as motions for summary judgment
when they challenged taxpayers’ qui tam petition. Taxpayers responded to the motions to
dismiss with a response containing attached
materials outside of the pleadings. The replies
by the Commission and Phillips did not include
materials outside of the pleadings.21 The appellate court construed the motions as motions for
summary judgment because of the materials
attached to taxpayers’ responses.
¶48 This Court has consistently stated that a
motion to dismiss for failure to state a claim
upon which relief may be granted, as provided
by 12 O.S.2001 §2012 (B)(6), is to be treated as a
motion for summary judgment when matters
outside of the pleadings are presented in support of the motion and those extra-pled matters
are not excluded by the trial court when the
2608
motion is considered. Kordis v. Kordis, 2001 OK
99, ¶¶1-3, 37 P.3d 866, 868-869; Dyke v. Saint
Francis Hospital, Inc., 1993 OK 114, 861 P.2d 295,
298-299. Of course, once the motion to dismiss
is converted to one for summary judgment the
moving party has a different burden: “Once
the proceeding becomes one for summary
judgment, the moving party’s burden changes
and he is obliged to demonstrate that there
exists no genuine issue as to any material fact
and that he is entitled to a judgment as a matter
of law.” Shaffer v. Jeffery, 1996 OK 47, 915 P.2d
910, 914, quoting, 5A Wright & Miller, Federal
Practice and Procedure: Civil 2d, §1366 (1990). See
also Cinco Enterprises, Inc. v. Benso, 1994 Ok 135,
890 P.2d 866, 871; Indiana Nat. Bank v. State,
Dept. of Human Services, 1993 OK 101, 857 P.2d
53, 59. It is of this change of the burden that
Phillips and the Commission complain. They
want to challenge the legal sufficiency of the
petition without seeking judgment on the merits as a matter of law.
¶49 Title 12, section 2012 (B) provides in
part:
If, on a motion asserting the defense numbered 6 of this subsection to dismiss for
failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be
treated as one for summary judgment and
all parties shall be given reasonable opportunity to present all material made pertinent to the motion by the rules for summary judgment.
12 O.S. Supp. 2006 §2012(B).
This language treats a motion to dismiss based
upon a failure to state a claim upon which
relief may be granted as a motion for summary
judgment when matters outside the pleading
are presented to, and not excluded by, the trial
court.
¶50 The substance of a motion requesting
judicial relief, rather than the motion’s title, is
determinative of the relief requested from the
court. Horizons, Inc. v. Keo Leasing Co., 1984 OK
24, 681 P.2d 757, 759; Deen v. Fruehauf Corp.,
1977 OK 27, 562 P.2d 505, 506. When the movant has challenged the facial sufficiency of a
petition and not relied upon matters outside
the pleadings in either movant’s motion or
movant’s replies to an opposing party’s
responses on the motion, it makes little sense to
convert the motion to one for summary judg-
Vol. 78 — No. 28 — 10/13/2007
ment when its content is not seeking summary
judgment.
¶51 In the case before us, the taxpayers
attached affidavits to their responses to the
motions to dismiss. If their petition lacked
facts, they could certainly amend it. No responsive pleading had been filed by the Commission or Phillips, and pursuant to 12 O.S. 2001
§2015(A)22 a petition may be amended by right
at any time before an answer is served. Winston
v. Stewart & Elder, P.C., 2002 OK 68, ¶24, 55 P.3d
1063, 1072. We see no purpose in allowing a
plaintiff to unilaterally change a movant’s
motion to one for summary judgment and thus
require the movant to meet a different burden
than when challenging the sufficiency of the
petition. Language to the contrary in Tisdale v.
ITW Ramset/Red Head, 2003 OK CIV APP 83, ¶4,
77 P.3d 609, 610, and Benson v. Hunter, 2002 OK
CIV APP 44, ¶¶5-7, 45 P.3d 444, 445, is hereby
disapproved.
¶52 The function of a motion to dismiss is to
test the law of the claims, not the facts supporting them. Estate of Hicks ex rel. Summers v. Urban
East, Inc., 2004 OK 36, ¶5, 92 P.3d 88. “The
applicable test for appraising the sufficiency of
a pleading challenged for failure to state a
claim upon which relief may be granted teaches that no dismissal may be effected unless it
should appear beyond doubt that the plaintiff
can prove no set of facts in support of the claim
which would entitle her to relief.” Dyke v. Saint
Francis Hospital, Inc., 1993 OK 114, 861 P.2d 295,
298 (note omitted).
¶53 We stated the following in a previous qui
tam proceeding where the sufficiency of a
petition was challenged:
We have no doubt that an allegation to the
effect that county officials charged with the
responsible duties of disposing of real
estate held by the county by purchase at
resale, knowingly caused same to be transferred to one at a small fraction of its true
value as known to them, is sufficient to
state a prima facie case of fraud and is sufficient to withstand a demurrer directed at
the sufficiency of the petition to state a
cause of action.
State ex rel. Lockhart v. Board of Com’rs of Lincoln
County, 1946 OK 291, 173 P.2d 725, 727.
¶54 In Lockhart the allegation was simply that
the officials had transferred public property for
a small fraction of its true value. We concluded
Vol. 78 — No. 28 — 10/13/2007
that the petition was sufficient to withstand a
challenge to its sufficiency in stating a cause of
action. In the present matter the allegations
include but are not limited to (1) that state
funds were paid upon claims that the officials
knew were not legally due because of insufficient information supplied by Phillips, (2) that
an audit by the State Auditor and Inspector
had informed officials that payment had been
made without authority, and (3) that officials
had been coerced to make payments that were
not authorized by law. As in Lockhart, we have
no doubt that the allegations are sufficient to
withstand a §2012(B)(6) challenge.
¶55 In this case, the taxpayers sought to
intervene in the declaratory judgment proceeding and sought review on appeal of the trial
court’s order denying their motion to intervene. In Tal II, supra, we said that taxpayers had
no right to intervene because the controversy
was properly presented to the trial court by the
actions of the officials after the demand letter.
In the matter before us, the taxpayers claim a
right to intervene.
¶56 The Pleading Code makes timely intervention a matter of right23 when there is either
an unconditional statutory right to intervene;
or when (1) the intervenor claims a significant
protectable interest relating to the property or
transaction that is the subject of the action, (2)
the disposition of the action may, as a practical
matter, impair or impede the applicant’s ability
to protect its interest, and (3) the existing parties may not adequately represent the applicant’s interest. See Brown v. Patel, 2007 OK 16,
¶¶16-18, 157 P.3d 117, 123-124. The parties
focus on the nature of the interest claimed by
the taxpayers in this controversy.
¶57 In State, Bd. Com’rs Pontotoc County ex rel.
Braly v. Ford, 1941 OK 270, 116 P.2d 988, we
stated that when the officials fail to take the
proper actions after a taxpayer’s statutorily
sufficient written demand, a “taxpayer may
institute a suit as provided by the statute and
thereby acquire a substantial interest in the
subject matter of the litigation.” Id. 116 P.2d at
990. But because of the presumption that officials will take proper actions subsequent to a
demand letter, the taxpayer’s interest does not
come into being until the taxpayer shows that
officials failed to take the proper actions after
receiving the demand letter. Id. 116 P.2d at 990
– 991.
2609
¶58 The qui tam interest of taxpayers is thus
limited to that created by the qui tam statute.
Taxpayers must show the insufficiency of the
declaratory judgment petition as a condition
precedent to a successful intervention in the
declaratory judgment proceeding. The motion
to intervene argues that intervention is necessary to put before the trial court the facts of the
controversy that were not raised by the declaratory judgment proceeding. Taxpayers showed
the insufficiency of the allegations of the declaratory judgment petition for the purpose of
intervening to present the facts of the controversy to the trial court for its consideration on
the merits of the controversy.24
¶59 Another argument raised on certiorari is
that the taxpayers improperly sought intervention for the purpose of dismissing the declaratory judgment petition. Taxpayers stated that if
they were allowed to intervene they would
seek dismissal of the officials’ petition. Taxpayers made various allegations against the petition, including that the Corporation Commission did not authorize the declaratory judgment proceeding and that the declaratory judgment proceeding was not brought in good
faith. Phillips and the Commission argue that
public officials are presumed to act in good
faith and, because of that presumption, taxpayers may not seek to intervene to challenge a
declaratory judgment petition filed in response
to a taxpayers’ demand letter.
¶60 The argument of Phillips and the Commission is based upon the unstated premise
that the good-faith presumption of public officials in presenting the taxpayer controversy to
a court is an irrebuttable or conclusive presumption, and thus the attempt to intervene is
barred as a matter of law. An irrebuttable, conclusive, or absolute presumption is a rule of
law that once the averment is shown it may not
be overcome by any proof that the fact is otherwise.25 While irrebuttable presumptions are
often disfavored by courts,26 there are some
circumstances where the interests of parties are
properly subject to irrebuttable presumptions.
For example, in David V. R. v. Wanda J. D., 1995
OK 111, 907 P.2d 1025, we explained that an
irrebuttable presumption of the paternity of a
child born during marriage barred the putative
father’s suit because of important and
overriding public and social policies.
¶61 In Tal IV we stated that the taxpayers
failed to overcome the presumption that the
City would act in good faith in presenting the
2610
controversy in the declaratory judgment proceeding. State ex rel. Moshe Tal v. City of Oklahoma City, 2002 OK 97, ¶8, 61 P.3d 234, 241. We
did not hold that the taxpayers were barred
from presenting evidence and making legal
arguments for the purpose of overcoming the
presumption. The taxpayers in the controversy
before us are challenging not only the sufficiency of the declaratory judgment petition in
presenting the nature of the controversy so as
to show the propriety of their quest for seeking
qui tam relief, but also that the entire declaratory judgment proceeding was improperly
brought and tainted by a lack of good faith on
the part of the officials involved. While we
have concluded that the allegations of the
declaratory judgment petition are insufficient
to present the taxpayer’s controversy so as to
bar their seeking qui tam relief, we expressly do
not determine whether the allegations of taxpayers’ motion to dismiss attached to their
motion to intervene are sufficient either factually, or as a matter of law, to dismiss a declaratory judgment petition brought by officials in
response to a taxpayers’ written demand.27
¶62 In State, Bd. Com’rs Pontotoc County ex rel.
Braly v. Ford, 1941 OK 270, 116 P.2d 988, the qui
tam taxpayers were allowed to present evidence on the issue of whether the officials
acted in good faith, although they ultimately
failed to meet their evidentiary burden. Braly,
116 P.2d at 992. Phillips and the Commission
have not pointed to any overriding public and
social policies mandating that taxpayers should
be barred from having an opportunity to present evidence and legal argument that public
officials have not acted in good faith in response
to a taxpayer’s written demand. We hold that
the presumption is not irrebuttable and may be
challenged by qui tam plaintiffs.
¶63 In one appeal we have concluded that
the trial court’s order sustaining the motion
dismissing the qui tam petition was error and
must be reversed. In another appeal we have
concluded that the trial court’s order denying
the motion to intervene was error and must be
reversed. The orders reversed are on appeal
from two different trial court cases. We limit
our appellate review to the claims made on
certiorari, reverse both orders appealed from
the trial court, and remand the causes to the
trial court for further proceedings consistent
with this opinion.
Vol. 78 — No. 28 — 10/13/2007
¶64 EDMONDSON, V.C.J, HARGRAVE,
KAUGER, WATT, TAYLOR, COLBERT, JJ.,
Concur
¶65 OPALA, J., concurring in result in Part I
of the court’s opinion and concurring in its
remainder
No literal meaning can ever be ascribed to a
statutory declaration that is in patent discord
with legal reality and its consequences. Instead
of attributing to the statute’s words an intention of effecting an unlawful divestiture of
public money, we will, as we must, interpret
them as no more than impressing the entire
fund with a trust dedicated to the purpose for
which it was created, permitting no diversion
to anything else. When the statute’s text is so
understood, the title to the fund remains
unchanged, but its assets, now firmly committed to a single purpose, stand impervious to
legislative tinkering.1
1. A long-standing “rule of statutory construction is that the manifest intent of the legislature will prevail over the literal import of
words.” De-Annexation of Certain Real Property from the City of Seminole,
2004 OK 60, 102 P.3d 120, 129.
¶66 WINCHESTER, C.J., Disqualified
1. The district court order is appealable because a dismissal without prejudice that prevents judgment is treated as a final order for the
purpose of an appeal. Gilliland v. Chronic Pain Associates, 1995 OK 94,
¶7, 904 P.2d 73, 76.
2. A district court order that denies a motion to intervene is appealable as a final order. Matter of B.C., 1988 OK 4, ¶13, 749 P.2d 542, 544;
12 O.S.2001 Ch. 15, App. 1, Okla.Sup.Ct.R. 1.20(b)(5).
3. The facts for the controversy related herein are taken from allegations made by Taxpayers, Phillips, the Corporation Commission, and
its employees from their motions and pleadings in the trial court in
two proceedings, taxpayers’ qui tam proceeding, and the Corporation
Commission’s declaratory judgment action. Those documents serve as
the appellate record. 12 O.S.2001 Ch. 15, App. 1, Okla.Sup.Ct.R. 1.36.
4. 1989 Okla. Sess. Laws Ch. 90, §§18-27; 2001 O.S.2001 §§350-358.
5. Some of the taxpayer/intervenors/qui tam plaintiffs profess to
have knowledge of the alleged sham mediation and improper payment of claims from their former employment. Taxpayers include in
their number a former Corporation Commissioner, a former Director
of the Corporation Commission’s Petroleum Storage Tank Division, a
former General Counsel for the Corporation Commission, a former
Deputy General Counsel for the Corporation Commission, and a former Corporation Commission attorney assigned to represent the
Petroleum Storage Tank Division with the claims filed by Phillips.
6. One reason the Court may grant certiorari is when the Court of
Civil Appeals has decided an issue not previously determined by this
Court. 12 O.S.2001 Ch. 15, App. 1, Okla.Sup.Ct.R. 1.178(a)(1).
7. 62 O.S.2001 §372:
Every officer of the state and of any county, township, city, town or
school district, who shall hereafter order or direct the payment of any
money or transfer of any property belonging to the state or to such
county, city, town or school district, in settlement of any claim known
to such officers to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or
attempted to be made, for the state or any such county, city, town or
school district, by any officer thereof, and every person, having notice
of the facts, with whom such unauthorized, unlawful or fraudulent
contract shall have been made, or to whom, or for whose benefit such
money shall be paid or such transfer of property shall be made, shall
be jointly and severally liable in damage to all innocent persons in any
manner injured thereby, and shall be furthermore jointly and severally
liable to the state, county, city, town or school district affected, for triple
Vol. 78 — No. 28 — 10/13/2007
the amount of all such sums of money so paid, and triple the value of
property so transferred, as a penalty, to be recovered at the suit of the
proper officers of the state or such county, city, town or school district,
or of any resident taxpayer thereof, as hereinafter provided.
62 O.S.2001 §373:
Upon the refusal, failure, or neglect of the proper officers of the
state or of any county, township, city, town, or school district, after
written demand signed, verified and served upon them by ten resident
taxpayers of the state or such county, township, city, town, or school
district, to institute or diligently prosecute proper proceedings at law
or in equity for the recovery of any money or property belonging to the
state, or such county, township, city, town, or school district, paid out
or transferred by any officer thereof in pursuance of any unauthorized,
unlawful, fraudulent, or void contract made, or attempted to be made,
by any of its officers for the state or any such county, township, city,
town, or school district, or for the penalty provided in the preceding
section, any resident taxpayer of the state or such county, township,
city, town, or school district affected by such payment or transfer after
serving the notice aforesaid and after giving security for cost, may in
the name of the State of Oklahoma as plaintiff, institute and maintain
any proper action which the proper officers of the State, county, township, city, town, or school district might institute and maintain for the
recovery of such property, or for said penalty; and such municipality
shall in such event be made defendant, and one-half ( 1/2 ) the amount
of money and one-half ( 1/2 ) the value of the property recovered in
any action maintained at the expense of a resident taxpayer under this
section, shall be paid to such resident taxpayer as a reward. If all claims
stated by the resident taxpayers in the written demand are determined
in a court of competent jurisdiction to be frivolous, the resident taxpayers who signed such demand and who are parties to the lawsuit in
which such claims are determined to be frivolous shall be jointly and
severally liable for all reasonable attorney fees and court costs incurred
by any public officer or officers or any other person alleged in such
demand to have paid out, transferred, or received any money or property belonging to the state, or such county, township, city, town or
school district in pursuance of any alleged unauthorized, unlawful,
fraudulent, or void claim paid or contract or conveyance made, or
attempted to be made, by such officer or officers
8. 1989 Okla. Sess. Laws, Ch. 90, §22; 17 O.S.Supp.1989 §353.
9. 17 O.S.Supp.2006 §353:
A. There is hereby created within the Corporation Commission,
the “Petroleum Storage Tank Indemnity Fund”. The Director shall hire
an Administrator who shall administer the Indemnity Fund and
Indemnity Fund Program. The Indemnity Fund shall be administered
by the Administrator for the benefit of those persons determined to be
eligible by the Administrator to receive total or partial reimbursement
for:
1. The costs determined to be eligible by the Administrator in preparing a corrective action plan;
2. The cost of corrective action taken in response to an eligible
release;
3. Payment of claims for property damage or personal injury
resulting from an eligible release; and
4. Necessary costs incidental to the cost of a site assessment or the
corrective action taken and for filing and obtaining reimbursement
from the Indemnity Fund.
B. Reimbursements made to or for the benefit of eligible persons
shall be exempt from the Oklahoma Central Purchasing Act.
C. 1. Costs incurred as a result of a release from a storage tank
system owned or operated by this state or by the federal government
are not reimbursable pursuant to the provisions of the Oklahoma
Petroleum Storage Tank Release Indemnity Program. State and federally owned facilities shall take the proper corrective action as may be
necessary to protect the environment from a leaking storage tank system. Provided, that an agency of the state may access said fund for
reimbursement when it purchases property containing storage tanks
from an owner or operator qualified to access the Indemnity Fund and
upon which an eligible release has occurred prior to the agency acquiring the property. In such case, the agency of the state shall be reimbursed for allowable costs in excess of Five Thousand Dollars
($5,000.00) with the attendant co-pay as referenced in subsection H of
Section 356 of this title available to the agency at the same level or
amount of reimbursement as the qualified owner or operator would
have received pursuant to Section 356 of this title.
2. Costs incurred as a result of a release from a storage tank system
owned or operated by a Class I Railroad are not reimbursable pursuant
to the provisions of the Oklahoma Petroleum Storage Tank Release
Indemnity Program.
D. The Indemnity Fund shall consist of:
1. All monies received by the Commission as proceeds from the
assessment imposed pursuant to Section 354 of this title;
2611
2. Interest attributable to investment of money in the Indemnity
Fund; and
3. Money received by the Commission in the form of gifts, grants,
reimbursements, or from any other source intended to be used for the
purposes specified by or collected pursuant to the provisions of the
Oklahoma Petroleum Storage Tank Release Indemnity Program.
E. 1. The monies deposited in the Indemnity Fund shall at no time
become monies of the state and shall not become part of the general
budget of the Commission or any other state agency. Except as otherwise authorized by the Oklahoma Storage Tank Regulation Act and the
Oklahoma Petroleum Storage Tank Release Indemnity Program, no
monies from the Indemnity Fund shall be transferred for any purpose
to any other state agency or any account of the Commission or be used
for the purpose of contracting with any other state agency or reimbursing any other state agency for any expense.
2. No monies from the Indemnity Fund shall be used to pay or
reimburse the Commission for the salary of any employee, except for
the Compliance and Inspection Department, while such employee is
performing work involved in the regulation of storage tanks pursuant
to the Oklahoma Storage Tank Regulation Act or the administration of
programs pursuant to said act, including the development, review and
approval of corrective action plans as required by the regulatory programs; however, the Indemnity Fund shall pay for all costs associated
with administering the Compliance and Inspection Department
including, but not limited to, automobile and travel costs, computer
software and equipment, and other costs incurred in administering the
Compliance and Inspection Department. The Commission shall cross
train the field staff of the Petroleum Storage Tank Division to perform
inspections and related field activities for all programs within the Division and the Oklahoma Petroleum Storage Tank Release Indemnity
Program may reimburse the Division the actual costs of inspection
services performed on behalf of the Oklahoma Petroleum Storage Tank
Release Indemnity Program.
3. Monies in the Indemnity Fund shall only be expended for:
a. reimbursements to eligible persons unless duly assigned to
another, and
b. costs incurred by the Indemnity Fund Program for the administration of the fund and costs incurred for the sole purpose of evaluating claims and determining whether specific claims qualify for payment or reimbursement from such Indemnity Fund.
Any costs incurred by and reimbursed to the Commission pursuant to the provisions of the Oklahoma Petroleum Storage Tank Release
Indemnity Program shall not exceed the actual expenditures made by
the Commission to implement the provisions of the Oklahoma Petroleum Storage Tank Release Indemnity Program.
4. Payment of claims from the Indemnity Fund shall not become or
be construed to be an obligation of this state. No claims submitted for
reimbursement from the Indemnity Fund shall be paid with state monies.
10. Section 353 was amended in 1989, 1990, 1991, 1993, 1995, 1996,
1997, 1998, 1999, 2002, 2005, 2006, and 2007. For the most recent version
of §353 see 2007 Okla. Sess. Law Serv. Ch. 109, §2.
11. 68 O.S.2001 §500.4 (D) (the motor fuel tax levy is “a direct tax
on the retail or ultimate consumer precollected for the purpose of
convenience and facility to the consumer,” and “levy and assessment
on other persons . . . shall be as agents of the state for the precollection
of the tax.”).
12. From July 1, 2002 until July 1, 2004, and after the first one million dollars were collected and deposited into the Corporation Commission Revolving Fund, fifty percent of the one-cent assessment was
paid to the Higher Education Facilities Revolving Fund. 17
O.S.Supp.2002 §354(C)(2).
13. Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, n. 1, 87 P.3d 598, 599
(change from State Insurance Fund to CompSource Oklahoma
explained.
14. For example, the Legislature’s power to alienate the state’s
ownership interest in state funds is subject to the state constitutional
provision prohibiting a gift of state funds, and the Legislature may not
create a gift by naming it something else. Okla. Const. Art. 10 §15. In
other words, the constitution prohibits a gratuitous transfer of the
property of the state voluntarily and without consideration regardless
of the statutory label attached to the transaction by the Legislature.
Childrens Home and Welfare Association v. Childers, 1946 OK 180, 171 P.2d
613, 614; Hawks v. Bland, 1932 OK 101, 9 P.2d 720, overruled in part on
other grounds, Board of Commissioners of Marshall County v. Shaw, 1947
OK 181, 182 P.2d 507. See also In re Oklahoma Capitol Improvement
Authority, 2003 OK 59, ¶33, 80 P.3d 109, 129 (the Court examined the
circumstances of transaction to determine if public funds were transferred in violation of Okla. Const. Art. 10 §15).
15. Additionally, the State Insurance Fund (CompSource Oklahoma) is an entity that possesses statutory authority to sue and be sued
2612
in state courts. State ex rel. State Insurance Fund v. JOA, Inc., 2003 OK 82,
¶10, 78 P.3d 534. Phillips and the Corporation Commission point to no
similar language indicating that the Indemnity Fund is an entity
instead of a mere account owned by the state and managed by Commission and designated Commission employees.
16. Phillips and the Corporation Commission do not identify for
whom the assessment is precollected by the fuel tax remitters, and they
do not refer to the assessment as a “tax” as does the amicus curiae brief.
We decline to sua sponte analyze the nature of the legislative power that
was used to make the 17 O.S. §354 assessment; that is, whether the
power was an exercise of the legislature’s power to tax, police power,
or some other power, and the resulting implications, if any, on the
nature of the funds deposited in the Indemnity Fund. Thus, we need
not determine if §354 is a tax imposed upon the ultimate consumer that
is precollected by motor fuel distributors, or the nature of the activities
supported by payments from the Indemnity Fund.
17. For example, in Terry v. Bishop, 2007 OK 29, ¶12, 158 P.3d 1067,
we said that “Our decision in Granger [1935 OK 801, 51 P.2d 567] is
consistent with the holding in State v. Coyle, 1912 OK CR 126, 7 Okla.
Crim. 50, 122 P. 243 which recognized the fundamental constitutional
principle that a legislative body may not irrevocably bind its successors.” See also Petition of University Hospitals Authority, 1997 OK 162,
¶22, 953 P.2d 314, 329; Davis v. Childers, 1937 OK 728, 74 P.2d 930, 932.
18. City of Oklahoma City v. Oklahoma City Urban Renewal Authority,
1999 OK 71, 988 P.2d 901 (Tal I); State ex rel. Moshe Tal v. Norick, 1999 OK
85, 991 P.2d 999 (Tal II); State ex rel. Moshe Tal. v. City of Oklahoma City,
2000 OK 70, 19 P.3d 268, cert. denied, 534 U.S. 814, 122 S.Ct. 40, 151 L.
Ed.2d 13 (2001) (Tal III); State ex rel. Moshe Tal v. City of Oklahoma City,
2002 OK 97, 61 P.3d 234, (Tal IV); Oklahoma City Urban Renewal Authority v. City of Oklahoma City, 2005 OK 2, 110 P.3d 550, 554 (Tal V).
19. Estate of Hicks ex rel. Summers v. Urban East, Inc., 2004 OK 36,
¶15, 92 P.3d 88, 92; Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶3,
913 P.2d 1318, 1320. See also Fanning v. Brown, 2004 OK 7, ¶20, 85 P.3d
841, 847- 848, quoting, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit et al, 507 U.S. 163, 168, 113 S.Ct. 1160, 122
L.Ed.2d 517 (1993) (discussing similar principle in the Federal Rules of
Civil Procedure).
20. Because this matter involves the adequacy of pleading we need
not address the officials’ burden to present material facts relating to
taxpayers’ claim in the context of evidentiary materials.
21. The Corporation Commission’s response to an amicus curiae
brief filed by an Assistant Attorney General has attached thereto a brief
purportedly filed by the same Asst. A. G. in a different case on the
criminal docket in the same district court. The issue addressed by the
extra-record brief is the nature of state funds. This Court will not treat
a motion to dismiss as one for summary judgment where the parties
were neither put on notice of the action nor given an opportunity to
present applicable material. Estes v. Estes, 1996 OK 79, 921 P.2d 346, 349.
The attached extra-record brief was for the purpose of challenging the
facial sufficiency of the qui tam petition, and the brief did not create
notice for a summary judgment request. The Commission’s response
to the amicus brief did not convert its motion to one for summary judgment.
22. 12 O.S.2001 §2015(A):
A. AMENDMENTS. A party may amend his pleading once as a matter
of course at any time before a responsive pleading is served or, if the
pleading is one to which no responsive pleading is permitted and the
action has not been placed upon the trial calendar, he may so amend it
at any time within twenty (20) days after it is served. Amendments to
add omitted counterclaims or to add or drop parties may be made as a
matter of course within the time specified above. Otherwise a party
may amend his pleading only by leave of court or by written consent
of the adverse party; and leave shall be freely given when justice so
requires. A party shall respond to an amended pleading within the
time remaining for response to the original pleading or within ten (10)
days after the service of the amended pleading, whichever period may
be longer, unless the court otherwise orders.
23. Title 12, Section 2024, provides in part:
A. INTERVENTION OF RIGHT. Upon timely application anyone
shall be permitted to intervene in an action:
1. When a statute confers an unconditional right to intervene; or
2. When the applicant claims an interest relating to the property or
transaction which is the subject of the action and he is so situated that
the disposition of the action may as a practical matter impair or
impede his ability to protect that interest.
24. We have not been requested to decide in these appeals whether
intervention by taxpayers for the purpose of seeking the qui tam remedy is appropriate when a declaratory judgment proceeding insufficiently presents the nature of qui tam the controversy. We have recently
concluded that an officials’ declaratory judgment proceeding and taxpayers’ qui tam relief request may be based upon the same transaction
Vol. 78 — No. 28 — 10/13/2007
or occurrence; i.e., the same cause of action. Oklahoma City Urban
Renewal Authority v. City of Oklahoma City, 2005 OK 2, ¶¶15-16, 110 P.3d
550, 554. Similarly, we have not been requested to determine taxpayers’ right to intervene simply as taxpayers seeking equitable relief for
an alleged illegal expenditure of public funds. See, e.g., Oklahoma Public
Employees Association v. Oklahoma Department of Central Services, 2002
OK 71 ¶10, 55 P.3d 1072, 1078 (“ . . . a taxpayer possesses standing to
seek equitable relief when alleging that a violation of a statute will
result in an illegal expenditure of public funds . . . .”). Thus, we make
no pronouncement on how these two opinions would, or would not,
apply to taxpayers’ motion to intervene.
25. Mistletoe Express Service v. United Parcel Service, 1983 OK 27, 674
P.2d 1, 7; Black’s Law Dictionary, 1349 (4th ed. 1951) (defining presumption); Tevolini v. Tevolini, 69 Conn.App. 16, 783 A.2d 1157, 1166.
26. See, e.g., Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 37 L.Ed.
2d 63 (1973) (“Statutes creating permanent irrebuttable presumptions
have long been disfavored under the Due Process Clauses of the Fifth
and Fourteenth Amendments.”); Mistletoe Express Service v. United
Parcel Service, 1983 OK 27, 674 P.2d 1, 7 (“[I]t is held to be a denial of
due process to legislatively mandate an irrebuttable presumption of a
fact, when that presumption is not necessarily or universally true in
fact, and when the State has reasonable alternative means of making
the crucial determination.”).
27. The latter issue raises issues of fact and law that have not been
adjudicated by a trier of fact and are not before us in these appeals.
This Court, in the exercise of its appellate jurisdiction, does not make
first-instance determinations of disputed issues of either law or fact.
Baker v. Saint Francis Hospital, 2005 OK 36, ¶8, 126 P.3d 602.
2007 OK 74
IN THE MATTER OF THE
REINSTATEMENT OF DOUGLAS JEROME
“JERRY” FRALEY, TO MEMBERSHIP IN
THE OKLAHOMA BAR ASSOCIATION
AND TO THE ROLL OF ATTORNEYS
SCBD No. 5207. October 2, 2007
PROCEEDING FOR REINSTATEMENT OF
LICENSE TO PRACTICE LAW
¶0 Petition for reinstatement by Jerome
“Jerry” Fraley, whose prior quest for like relief
was denied in 2005. The Professional Responsibility Tribunal of the Oklahoma Bar Association, composed of Peggy Stockwell, Presiding
Master; John J. Gardner, Lawyer Member; and
Douglas O. Brady, Lay Member, recommended
that applicant’s membership in the Oklahoma
Bar Association be reinstated. Upon de novo
review of the record, petition for reinstatement
is granted.
Charles Alden, Oklahoma City, for applicant,
Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for
respondent.
PER CURIAM,
¶1 Petitioner brought his petition for reinstatement on March 21, 2007, in compliance
with Rule 11.1 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S. 2001, Ch. 1,
App. 1-A. This is his second attempt at reinstatement. The history of both his resignation
from the bar and of his earlier (first) quest for
Vol. 78 — No. 28 — 10/13/2007
reinstatement may be found in the text of this
court’s pronouncement on his first application.
They need not be repeated here.1 In the earlier
case the court refused to afford petitioner the
opportunity to clarify and explain circumstances that weighed heavily against his then
readmission. That case is now closed. The
application before us today is not simply a
retender of that earlier case, but an independent quest for reinstatement.
I
STANDARD OF REVIEW
¶2 In considering an application for reinstatement, the court exercises original jurisdiction and examines the evidence de novo.2 The
applicant bears the burden of demonstrating
by clear and convincing proof that the prerequisites for reinstatement are satisfied.3 Although
there was neither formal investigation nor disciplinary proceeding conducted at the time of
petitioner’s resignation, RGDP 1.4(c) informs
us that “Theft by conversion or otherwise of
the funds of a client shall, if proven, result in
disbarment.” Petitioner has admitted to the
theft of client funds and must hence meet the
same burden as an individual who has been
disbarred.4
II
EVIDENCE AND ANALYSIS
¶3 The terms of RGDP Rule 11.5 provide that
the trial panel of the Professional Responsibility Tribunal must conduct an inquiry into the
matter at hand, file in this court a transcript of
the hearing, and report its findings as to
whether the applicant (1) possesses good moral
character entitling him to readmission; (2) has
not engaged in the unauthorized practice of
law during the period of suspension, disbarment, or resignation; and (3) possesses the
competency and learning in the law required
for admission to practice law in Oklahoma.
¶4 This court also considers the following
additional factors in determining an applicant’s
fitness and eligibility for reinstatement: (1) the
demonstrated consciousness of wrongful conduct and of the disrepute which that conduct
brought to the profession; (2) the extent of the
applicant’s rehabilitation; (3) the seriousness of
the original misconduct; (4) the applicant’s
conduct since his resignation; (5) the time that
has elapsed since the resignation; and (6) the
2613
applicant’s character, maturity, and experience
at the time of resignation.5
¶5 At the hearing before the trial panel, petitioner established by clear and convincing evidence that he is remorseful about the conduct
which led to his resignation. He has accepted
full responsibility for his actions and has taken
steps to rehabilitate himself. He no longer
gambles on horse races or imbibes heavily, and
he sought professional counseling for four
years. Testifying on his behalf, co-workers and
employers uniformly affirmed without hesitation their belief that petitioner has rehabilitated
himself. They enthusiastically recommended
his reinstatement.
¶6 The record demonstrates that petitioner
has not practiced law since his resignation on
December 18, 1997. The testimony of both petitioner and his employer established that while
working as a legal assistant since his resignation, petitioner produces work that is always
inspected and approved by an attorney. In
meetings with clients, petitioner is always
introduced as a legal assistant. He does not
counsel clients.
¶7 Petitioner has worked as a legal assistant
since March 2001, maintaining a close contact
with the legal profession and closely monitoring any changes in the law. He has attended
over 100 hours of Continuing Legal Education
sessions since his resignation in 1997 and regularly reads the Oklahoma Bar Journal. Most notably, his employer for the last six years testified
as to the high quality of petitioner’s research
work and as to his status as a resource for
young associates in the firm. Petitioner has
established that his competency since resignation meets the required level that is necessary
for one’s reinstatement.
III
CONCLUSION
¶8 The record demonstrates by clear and
convincing evidence that petitioner has met
the law’s requirements for reinstatement to the
bar. All costs related to this reinstatement proceeding as well as to the initial reinstatement
proceeding have been paid. No funds have
been expended on his behalf by the Client
Security Fund. It is therefore ordered that petitioner Douglas Jerome “Jerry” Fraley be reinstated to membership in the Oklahoma Bar
Association and that his name once again be
placed on the Roll of Attorneys licensed to
2614
practice law in Oklahoma. If, at the time of this
pronouncement, any bar fees should still be
due and payable, they shall be remitted to the
bar within thirty days of the day this opinion
becomes final.
PETITION FOR REINSTATEMENT
GRANTED
¶9 WINCHESTER, C.J., EDMONDSON, V.
C.J., HARGRAVE, KAUGER, COLBERT, JJ.,
Concur
¶10 TAYLOR, J., Dissenting and joined by
WATT, J.
This applicant has failed to meet the required
burden of proving by clear and convincing evidence that he has stronger proof of qualifications than one seeking admission to the Bar for
the first time. RGDP Rules 11.4, 5 O.S. 2001,
Ch.1, App. 1-A.
¶11 OPALA, J. — Not voting
1. In re Reinstatement of Fraley, 2005 OK 39, 115 P.3d 842.
2. See, e.g., In re Reinstatement of Jones, 2006 OK 33, ¶ 7, 142 P.3d
380, 381; State ex rel. Oklahoma Bar Ass’n v. Maddox, 2006 OK 95, ¶ 17,
152 P.3d 204, 210; In re Reinstatement of Massey, 2006 OK 21, ¶ 12, 136
P.3d 610, 614.
3. See 5 O.S. 2001, Ch.1, App 1-A.
4. In re Reinstatement of Kamins, 1988 OK 32, ¶ 19, 752 P.2d 1125,
1129.
5. Id. at 1130.
2007 OK 75
IRENE STEPHANIE THOMPSON, Plaintiff/
Appellee, v. BAR-S FOODS COMPANY, a
Delaware corporation, Defendant/Appellant.
No. 101,973. October 2, 2007
ON WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS, DIVISION II
¶0 Plaintiff/Appellee’s employment with
Defendant/Appellant was terminated
after she filed a claim under the Workers’
Compensation Act for work-related injuries. She filed an action in the state district
court for retaliatory discharge pursuant to
85 O.S. 2001 §§5-7. Appellant filed a
motion to compel arbitration which the
trial court denied. Defendant filed an
appeal and the Court of Civil Appeals
reversed the case and remanded it for
further proceedings. This Court granted
Appellee’s petition for writ of certiorari.
OPINION OF THE COURT OF CIVIL
APPEALS IS VACATED; ORDER OF THE
TRIAL COURT IS AFFIRMED AND
Vol. 78 — No. 28 — 10/13/2007
REMANDED FOR FURTHER
PROCEEDINGS.
Taylor K. Hammett, Midwest City, Oklahoma,
for Plaintiff/Appellee,
Gayle Barrett, Adam W. Childers, Oklahoma
City, Oklahoma, for Defendant/Appellant.
OPINION
WATT, J.:
¶1 In this case we decide whether Plaintiff/
Appellee Irene Stephanie Thompson is required
to submit her state law retaliatory discharge
claim to arbitration pursuant to the Federal
Arbitration Act (FAA), 9 U.S.C. §§1-16. Her
claim originated in state district court pursuant
to the Oklahoma Workers’ Compensation Act
(WCA), specifically the provisions at 85 O.S.
2001 §51 (since amended). Under the facts of
this case, we hold Appellee Thompson is not
required to submit her claim to arbitration. The
opinion of the Court of Civil Appeals (COCA)
is vacated. The order of the trial court is
affirmed but remanded for further proceedings
in accordance with this opinion.
FACTS AND PROCEDURAL HISTORY
¶2 When Thompson applied for employment with Defendant/Appellant Bar-S Foods
Company, she signed an application which she
dated on March 14, 2000. The application
requested general information such as previous experience, education, special skills and
qualifications, possible criminal background
and references. Below the space provided for
the name of her emergency contact, which was
contained within a box, was the following:
APPLICANTS ARE REQUIRED TO READ
THE FOLLOWING STATEMENTS. Below that
heading, in type which is noticeably smaller
than the rest of the application, are eight paragraphs followed by spaces for her signature
and the date. The material contained within
that portion of the application includes a broad
range of subjects, including a certification the
information is true and correct, the understanding that an investigative report may be
made based on interviews with third parties,
the release of records, and the agreement to
provide acceptable proof of her birth within
thirty days of the initial date of employment.
¶3 In addition to the subjects covered above,
the application2 required her consent to provide blood and urine samples for analysis
when requested and to abide by the terms of all
Vol. 78 — No. 28 — 10/13/2007
Bar-S rules, guidelines, policies, procedures,
and Employee Handbook provisions, both current and as modified in the future. The application also contained requirements to utilize the
Bar-S “Problem Resolution Process” (PRP) to
resolve grievances and disputes “related to my
employment or termination of my employment,” to submit unresolved disputes to arbitration as provided in the PRP, and to waive
her right to a jury trial of claims arising from
her employment or termination of her employment. Near the signature line, the application
also provides:
I understand that no offer of employment
by any agent of Bar-S Foods Co. shall be
considered valid until after completion of
the entire application process including,
but not limited to, an interview, and testing
for alcohol, controlled substances, illegal
drugs, and background checks.
I have read, understand, and by my signature consent to these statements.
¶4 When hired on April 19, 2000, Thompson
signed a document which acknowledges that a
copy of the Problem Resolution Process
(PRP) is available on the bulletin board and in
the personnel office. The signed document
provides:
On this date I have received a copy of the
Bar-S Foods Co. hourly employee handbook. I will read it carefully and if I have
any questions, I will discuss them with my
supervisor or or (sic) the Personnel
department.
Management has prepared the hourly
employee handbook in order that I will be
aware of Bar-S Foods Co. policies and procedures. Any further clarification and/or
interpretation of the handbook is at the
discretion of the management of Bar-S
Foods Co.
I understand a copy of the Problem Resolution Process, the Attendance policy and the
Disciplinary guidlines (sic) are posted on
the plant bulletin board for my review, or I
may request a copy from the Personnel
office.
I understand that all of the afore mentioned documents are subject to change
by Bar-S from time to time without notice.
I understand that violations of the rules of
conduct will result in disciplinary action.
2615
Statements made regarding insurance are
subject to the provisions and terms of the
master policy or policies. Please refer to the
plan booklet or certificates for specific
details. [emphasis added].
Employee signature: s/Stephanie Thompson
arbitration agreement assigned the issue of
arbitrability to the arbitrator required the
Trial Court to Grant Bar-S’s motion.
This Court previously granted Thompson’s
petition for writ of certiorari.
BURDEN OF PROOF AND
STANDARD OF REVIEW
Date: 4-19-00
¶5 Approximately two years after she was
hired, Thompson filed a workers’ compensation claim for injuries she received which arose
out of her employment with Bar-S. While
receiving benefits for temporary total disability, she was advised she was being placed on a
90-day layoff. At the end of that period, she
was advised her employment was terminated.
Thompson sued Bar-S pursuant to 85 O.S. 2001
§5 on December 1, 2004, alleging her employment was wrongfully terminated because she
filed a workers’ compensation claim.
¶6 Bar-S moved to dismiss, or in the alternative, to compel arbitration and to stay the proceedings. Bar-S claimed the parties had agreed
to resolve all claims through arbitration.
Thompson’s affidavit in support of her response
to Bar-S’s motion to dismiss contains the statement that neither at the time she signed her
application nor at the time she was hired did
she see a copy of the PRP, nor did she sign it.
The trial court overruled Bar-S’s motion. It
held Thompson’s agreement to “mediate” any
claims regarding her employment did not
excuse Bar-S’s compliance with the WCA, 85
O.S. 2001 §§1-211, or constitute a waiver of the
protection provided Thompson under the Act.3
The trial court also entered an agreed order
staying the proceeding pending appeal. Bar-S
appealed the order which is appealable by
right. 12 O.S. Supp. 2005, §1879(A)(1); Okla.
Sup.Ct.R. 1.60(i), 12 O.S. 2001, Ch. 15, App.4
¶7 The Court of Civil Appeals (COCA)
reversed and remanded, stating:
The Trial Court refused to compel arbitration because it determined that, despite
her agreement to arbitrate, Thompson’s
right to litigate her retaliatory discharge
claim in district court could not be waived.
In her employment agreement with Bar-S,
Thompson did not waive the right to pursue her statutory claim, she merely agreed
to have that claim resolved by an arbitrator
rather than the court. For the reasons previously discussed, the determinations that
Thompson agreed to arbitrate and that the
2616
¶8 In a case in which arbitration is being
urged as the appropriate forum for resolving
disputes, the “burden is on the party opposing
arbitration to show that Congress intended to
preclude a waiver of judicial remedies for the
statutory rights at issue; an intention discernible from the statute’s text or legislative history
or ‘an inherent conflict between arbitration and
the statute’s underlying purposes.’ ” Bruner v.
Timberlane Manor Ltd. Partnership, 2006 OK
90, ¶22, 155 P.3d 16, 25, quoting Shearson/
American Express, Inc. v. McMahon, 482 U.S.
220, 227, 107 S.Ct. 2332, 2338.
¶9 We review an order granting or denying a
motion to compel arbitration de novo, the same
standard of review employed by the trial court.
See Fleming Companies, Inc. v. TRU Discount
Foods, 1999 OK CIV APP 18, 977 P.2d 367 (cert.
denied, 1999); Towe, Hester & Erwin, Inc., v.
Kansas City Fire & Marine Insurance Company, 1997 OK CIV APP 58, 947 P.2d 594 (cert.
denied, 1997). Arbitration should be compelled
unless it may be said with positive assurance
that the arbitration clause is not susceptible of
an interpretation that covers the asserted dispute. Fleming Companies, Inc. v. TRU Discount Foods, 1999 OK CIV APP 18, ¶16, 977
P.2d 367, 371, citing United Steelworkers of
America v. Warrior & Gulf Navigation Co., 363
U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409
(1960).
COCA’S DECISION
¶10 COCA found Thompson did not argue
the FAA was not applicable to this case, only
that the arbitration agreement should not be
enforced. She raised the issues that the agreement was unfair, contrary to Oklahoma law
and the invalidity of the contract based in part
on the manner in which the agreements were
drafted and presented. In analyzing the application and the arbitration agreement, COCA
held the trial court erred when it determined
there was an agreement to arbitrate, but denied
the motion to compel. COCA ruled the trial
court should have granted the motion to compel and that an arbitrator should then have
Vol. 78 — No. 28 — 10/13/2007
been allowed to determine the arbitrability
issue, i.e., whether a valid agreement to arbitrate the retaliatory discharge claim exists,
because the parties agreed the FAA would
apply to issues of arbitrability. COCA found
Thompson agreed to arbitrate and agreed to be
governed by the FAA. It failed, however, to
consider the issue raised by Thompson that no
valid contract existed because of the “manner
in which the agreements were drafted and
presented.” See COCA opinion, ¶5.
CONTENTIONS
¶11 Citing 85 O.S. 2001 §7, Thompson alleges
the Oklahoma Legislature determined that
retaliatory discharge actions relating to the
WCA are to be resolved in the district courts of
Oklahoma. Section 7 provides:
Except as otherwise provided for by law,
the district courts of the state shall have
jurisdiction, for cause shown, to restrain
violations of this act.
¶12 Bar-S contends §7 does not show legislative intent to create exclusive jurisdiction in
the district courts of Oklahoma and that even if
it had so intended, the Federal Arbitration Act
(FAA), 9 U.S.C. §§1-16,5 preempts 85 O.S. 2001
§7.6 It further argues the United States Supreme
Court has ruled that employers may require
arbitration of employment-related claims and
rejects Thompson’s position that Oklahoma
courts have found similar arbitration agreements unenforceable.
¶13 In the trial court and on appeal, Thompson did not dispute that the FAA applies to this
case. She argued the arbitration agreement is
fundamentally unfair and should not be
enforced because it would prevent the pursuit
of her claim under 85 O.S. §5, in which the state
district court “shall have jurisdiction.” See 85
O.S. 2001 §7.7 She also argued the agreement is
unfair because of the parties’ unequal bargaining power and her lack of education. She also
alleged a lack of mutuality.8 However, in
Thompson’s petition for certiorari,9 she states
an apparently different position from the one
she took earlier. She states:
The Appellee did state several times in
the briefs filed in the District Court of Beckham County and the Court of Civil Appeals
that the Federal Arbitration Act would
apply to wrongful discharge claims under
85 O.S. 2001, § 5; these statements are incorVol. 78 — No. 28 — 10/13/2007
rect and the Appellee would now withdraw any statement of this nature.
¶14 While ordinarily a plaintiff would not be
allowed to raise new issues at this stage of the
proceedings, see 12 O.S. 2001 §992 and Supreme
Court Rule 1.179(d), 12 O.S. 2001, Ch. 15, App.
1, whether the FAA requires arbitration of
Thompson’s retaliatory discharge claim must
be ultimately determined regardless of her
previous position.
¶15 Bar-S argues Thompson is bound by her
signed agreement to arbitrate claims, and also
contends if an applicant later accepts an offer
of employment based on an application, it is
disingenuous to suggest the content of the
offer is not defined by the terms and conditions
of the application. Bar-S argues that where a
definite condition of continued employment is
communicated to an at-will employee, her continued employment manifests assent to the
condition and constitutes consideration. It also
argues Thompson’s acknowledgment of access
to the PRP strengthens her obligation to arbitrate. It contends the trial court clearly erred in
finding her retaliatory discharge claim was
excluded under the PRP10 and in concluding it
required her to waive her statutory rights
under the WCA.
¶16 Bar-S contends the arbitration procedures reflect mutual obligation of employer
and employee. It claims that Thompson’s argument that she is barred from the right to arbitrate her claim because she failed to follow the
preliminary steps is disingenuous. It contends
it waived the preliminary requirements and
assured the trial court that Thompson could
arbitrate her claim if she paid the fee within the
appropriate statute of limitation period. It contends she was clearly within time. See 12 O.S.
Supp. 2005 §95(A)(2).11
FEDERAL ARBITRATION ACT
¶17 The PRP provides that the “Arbitration
Procedures” for settling disputes are based on
the FAA. In determining whether the FAA
mandates submission of a claim to arbitration,
a two step inquiry is necessary. See Mitsubishi
Motors Corporation v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.
Ed.2d 444 (1985). First, courts determine whether the arbitration agreement covers the dispute
at issue. Mitsubishi, 473 U.S. at 626, 105 S.Ct. at
3353. The PRP provides that it includes claims
relating to “employment or termination of . . .
employment.” Thus, it clearly purports to
2617
include it. Next, courts must consider whether
legal constraints external to the parties’ agreement foreclosed the arbitration of those claims.
It must be determined whether the statutory
right at issue is one for which Congress intended to preclude a waiver of judicial remedies.
Mitsubishi, 473 U.S. at 628, 105 S.Ct. At 335455.12
¶18 We look to Section 2 of the FAA.13 While
it requires arbitration of contracts involving
commerce, it also provides a qualification
which we find applicable to the present case:
“save upon such grounds as exist at law or in
equity for the revocation of any contract.”
[emphasis added]. The interpretation of an
arbitration agreement is “governed by ‘general
state-law principles of contract interpretation.’”
See Wilkinson v. Dean Witter Reynolds, Inc.,
1997 OK 20, ¶9, 933 P.2d 878, 880 (citation omitted). “When deciding whether the parties
agreed to arbitrate a certain matter . . . courts
generally . . . should apply ordinary state-law
principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131
L.Ed.2d 985 (1995) (citations omitted).
¶19 An essential element of a contract is sufficient consideration. 15 O.S. 2001§2.14 As a
general rule, consideration exists as long as
there is a benefit to the promisor or a detriment
to the promisee. See Powers Restaurants, Inc.
v. Garrison, 1970 OK 30, ¶7, 465 P.2d 761, 763.
In the present case, Thompson as the promisor
received no benefit; under the terms of the
arbitration agreement, she was required to
arbitrate her claim and to waive her right to a
trial, in exchange for a promise from Bar-S
which it could withdraw without notice. Bar-S
stood to suffer no inconvenience or detriment
with the ability to amend at any time.
¶20 Oklahoma law has generally recognized
the rule of contract law that the reservation of
a unilateral right to cancel the entire agreement
is so broad that it negates the existence of consideration; the promise is essentially empty or
illusory. See Wilson v. Gifford-Hill & Company, Inc., 1977 OK CIV APP 18, 570 P.2d 624
(cert. denied),15 citing 1 A Corbin on Contracts
§163 and Calamari and Perillo, Contracts (1970)
p. 135. This principle was applied by federal
courts in arbitration cases under the FAA, construing Oklahoma law in which the employers
have reserved the right to amend the arbitration agreements imposed on their employees
to resolve claims and disputes. See Hardin v.
2618
First Cash Financial Services, Inc., 465 F.3d 470
(10th Cir. 2006); Pierce v. Kellogg, Brown &
Root, Inc., 245 F.Supp.2d 1212 (E.D.OK 2003).
In both cases, the courts held the arbitration
agreements were not illusory because they
required prior notice to the employees before
amendment of terms. We cite the above cases
approvingly and apply the rule of law to this
case.
DISCUSSION
¶21 The existence of an arbitration agreement is governed by principles of state law.
Rogers v. Dell Computer Corporation, 2005 OK
51, ¶14, 138 P.3d 826, 830, citing Wilkinson v.
Dean Witter Reynolds, Inc., 1997 OK 20, 933
P.2d 878. “Under the FAA, issues relating only
to the validity of the arbitration provision are
generally subject to a judicial determination.”
Rogers v. Dell Computer Corporation, 2005 OK
51, ¶13, 138 P.3d 826, 830 [emphasis added],
citing Prima Paint Corp. v. Flood & Conklin
Mfg. Co., 388 U.S. 395, 403-404, 87 S.Ct. 1801, 18
L.Ed.2d 1270 (1967). It is the court’s role to
determine whether a valid, enforceable agreement to arbitrate the dispute exists. Rogers v.
Dell Computer Corporation, 2005 OK 51, ¶14,
138 P.3d 826, 830 [citations omitted].
¶22 In attempting to refute Thompson’s
argument of lack of mutuality, Bar-S refers to
provisions of the PRP itself which require both
Bar-S and its employees to submit employment-related claims to arbitration. However, it
is undisputed that Bar-S at no time gave
Thompson a copy of the PRP. We acknowledge
she signed the application which provides she
knew the PRP was available upon request. The
application also provides, however, that no
offer is valid before the drug and alcohol testing and the background checks were complete.
The application is thus not an offer of employment, and Thompson’s signature is not an
acceptance of an offer. The language in the
application attempts to bind Thompson without requiring Bar-S to hire her. She was required
at the time of signing the application to agree
to abide by Bar-S’s “rules, guidelines, policies,
procedures, and Employee Handbook provisions” without knowing what those rules and
policies were. Moreover, in order to apply for a
job she was required to agree to resolve future
disputes through arbitration and to waive a
jury trial without knowing what the arbitration
procedures required.
Vol. 78 — No. 28 — 10/13/2007
¶23 We acknowledge Bar-S’s citations of
authority in which arbitration agreements in
employment applications have been upheld as
valid agreements to arbitrate, see e.g., Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.
Ct. 1302, 149 L.Ed.2d 234 (2001) and Adkins v.
Labor Ready, Inc., 303 F.3d 496 (4th Cir. 2002).
The present case is distinguishable, however,
because of the subsequent document
Thompson signed.
¶24 As noted above, when Thompson was
hired on April 19, 2000, she signed a document
acknowledging receipt of the employee handbook.16 This document referred to the PRP as
being available on the bulletin board and at the
personnel office upon request. The provision
referring to availability of the PRP persuades
us it was not contained in the handbook she
received, nor was a separate copy of it given to
her at that time. Therefore, despite Bar-S’s contention that Thompson is bound by the PRP’s
terms, she was never given a copy of it.
¶25 The document signed on April 19, 2000,17
contains the statement, “I understand that all
of the afore mentioned documents are subject
to change by Bar-S from time to time without
notice.” [emphasis added]. The PRP is clearly
one of the “afore mentioned documents.” Thus,
Bar-S gave itself the unilateral right to modify
the PRP, which contains the arbitration
provisions, at any time.
¶26 Thompson has repeatedly raised the
issue of the unfairness of the PRP and the circumstances under which she signed the preemployment application and the post-employment acknowledgment. She swore she did not
read the PRP, and as we have noted, Bar-S
never gave her a copy of it. The courts of other
states have considered similar issues relating
to arbitration agreements in employmentrelated cases which we find instructive.
¶27 In Ex Parte Beasley, 712 So.2d 338 (Ala.
1998), Beasley’s employer instituted a new
employment policy requiring arbitration of
employment-related disputes. Notice of the
policy was provided by issuing an employee
handbook which contained the arbitration
agreement. Beasley was an employee when
this new policy began, and her continued
employment was conditioned on acknowledging receipt of the new handbook, in writing.
After signing the acknowledgment, she was
terminated. The trial court granted the employer’s motion to compel arbitration.
Vol. 78 — No. 28 — 10/13/2007
¶28 The acknowledgment Beasley signed
provides in part that “no written statement or
agreement in this handbook concerning
employment is binding, since provisions are
subject to change, and as all . . . employees are
employed on an ‘at will’ basis.” [emphasis
added]. Beasley, 712 So.2d at 340. Beasley
argued that provision precluded the existence
of a contract because her employer would be
allowed to choose which provisions it wished
to enforce. The Supreme Court of Alabama
agreed and granted Beasley’s petition for writ
of mandamus directing the trial court to vacate
its order compelling arbitration. The Court
held that the disclaimer in the acknowledgment form that no written statement in the
handbook is binding “vitiates the operative
effect of the arbitration provision contained in
the standard employee handbook. The plain
meaning of the phrase ‘no written statement’
would include the statement in the standard
employee handbook that the employee ‘will
use binding, independent arbitration as the
final step in [his] complaint process.’ ” [citations omitted] Id., at 340. Beasley left unsigned
an acknowledgment form which contained
only the arbitration clause. “Absent Beasley’s
signature on a document that contains a valid
arbitration clause, we cannot hold that she
agreed to arbitrate her employment claims
against Brookwood.” Beasley, 712 So.2d at 341,
citing First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d
985 (1995) (arbitration is required only for
those claims the parties expressly agreed to
arbitrate).
¶29 In a later case, the Supreme Court of Alabama distinguished Beasley. See Baptist
Health System, Inc. v. Mack, 860 So.2d 1265
(Ala. 2003). The court held the employee,
Mack, was bound by an acknowledgment she
signed in which she agreed to arbitrate employment-related disputes. Mack argued she was
not required to arbitrate because she signed an
acknowledgment form that did not contain an
arbitration provision, citing Beasley, supra.
The Court disagreed, noting it had held in Beasley that if Beasley had signed the acknowledgment form which set apart and included
the arbitration agreement, she would have
been obligated to arbitrate her dispute. The
Court found the language in the Program document in Mack introducing its new arbitration
policy was comparable to the language in the
acknowledgment form, containing the arbitration agreement, which Beasley did not sign.
2619
The new policy in Mack, entitled “Dispute
Resolution Program,” was not included in an
employee handbook, but it was set out in a
separate document, similar to the PRP in the
present case. It provided that by continuing her
employment after receipt of the document, she
agreed to be bound by the terms of the Program which constituted a binding contract
between her and Employer BHS. Mack signed
a document entitled “Acknowledgment of
Receipt of BHS Dispute Resolution Program,”
acknowledging receipt of the Program document and providing that she understood she
was obligated to read the document and that it
governed her continued employment and all
future legal disputes between her and BHS as
defined in the document. Also, meetings were
held with employees to explain the terms of
the Program before it became effective to
ensure employees were aware of the arbitration provision contained within the document.
Thus, the Supreme Court of Alabama did not
disavow Beasley. By way of comparison, the
Court reaffirmed its holding in Beasley by
showing how distinguishing facts cause a
different outcome.
¶30 In J. M. Davidson, Inc. v. Webster, 128
S.W.3d 223 (Tex. 2003), the Texas Supreme
Court ordered a case on appeal remanded for
an evidentiary hearing to determine the parties’ intentions on an ambiguous statement in
the employer’s personnel policies. The provision at issue provided that the employer
retained a unilateral right to modify “personnel policies” at any time. The court found the
term ambiguous because it could not determine whether the term included the arbitration
agreement or other certain specified policies. If
it included the arbitration agreement, it was
illusory because the express terms of the agreement provided the employer was not bound by
its terms. “Although we have repeatedly
expressed a strong presumption favoring arbitration, the presumption arises only after the
party seeking to compel arbitration proves that
a valid arbitration agreement exists.” Id., at
227.
¶31 The Davidson v. Webster Court compared it to another Texas case, In re Halliburton Co., 80 S.W.3d 566 (Tex.2002), in which the
employer’s right to modify an arbitration
agreement was also considered. The Texas
court held the Halliburton arbitration agreement was not illusory because it required ten
days’ notice of any modification, with only
2620
prospective application of any resulting amendments. See also In re Tenet Healthcare, Ltd., 84
S.W.3d 760 (Tex.App. 2002), in which the Court
of Appeals of Texas, Houston, held an arbitration agreement was supported by mutual
promises, finding the employer could not
rescind or change employment-related benefits
or the arbitration agreement without written
agreement from both parties.
¶32 The Texas Supreme Court in Davidson v.
Webster, supra, cited numerous cases which
had considered whether arbitration agreements
were illusory. One of the citations is to Dumais
v. American Golf Corporation, 299 F.3d 1216
(10th Cir. 2002), in which the Tenth Circuit held
an ambiguity in an employee handbook relating to arbitration would be construed against
the drafter under New Mexico law. It ultimately held the provision was illusory because it
allowed the employer to change the arbitration
provision at will. “We join other circuits in
holding that an arbitration agreement allowing
one party the unfettered right to alter the
arbitration agreement’s existence or its scope
is illusory.” Dumais v. American Golf
Corporation, 299 F.3d 1216, 1219.
CONCLUSION
¶33 COCA erred in failing to consider whether the agreement signed by Thompson was
invalid under basic state law contract principles, as provided by 9 U.S.C. §2 and the cases
cited. The acknowledgment signed by Thompson did not include a copy of the PRP, and the
handbook she was given did not contain a
copy of it. Moreover, the acknowledgment she
signed allowed Bar-S the right to modify the
terms of the PRP, as an “afore mentioned document” at any time without notice. Although
this Court recognizes the FAA is a valid means
of resolving disputes in the workplace, the
agreement to arbitrate must be based on a
valid contract, supported by consideration.
Therefore, under the facts of this case, we hold
Thompson is not required to pursue her claim
through arbitration.
¶34 Although we agree Thompson should be
allowed to pursue her claim in district court,
the trial court made an erroneous finding that
the PRP did not cover the retaliatory discharge
claim. However, we hold the trial court correctly denied the motion to compel arbitration.
An order of the trial court which reaches the
correct result for the wrong reason or on an
incorrect theory will not be reversed. See Jacobs
Vol. 78 — No. 28 — 10/13/2007
Ranch, L.L.C. v. Smith, 2006 OK 34, 148 P.3d
842; Estate of Bartlett, 1984 OK 9, 680 P.2d 369.
The order is thus affirmed, and this case is
remanded for a trial on the merits.
OPINION OF THE COURT OF CIVIL
APPEALS IS VACATED; ORDER OF THE
TRIAL COURT IS AFFIRMED AND
REMANDED FOR FURTHER
PROCEEDINGS.
WINCHESTER, C.J., EDMONDSON, V.C.J.,
HARGRAVE, OPALA, KAUGER, WATT, TAYLOR, COLBERT, JJ. — concur
1. 85 O.S. 2001 §5, in effect at the time this action began, provided:
A. No person, firm, partnership, corporation, or other entity
may discharge, or, except for non-payment of premium, terminate any group health insurance of any employee because the
employee has in good faith:
1. Filed a claim;
2. Retained a lawyer for representation regarding a claim;
3. Instituted or caused to be instituted, any proceeding under
the provisions of this title; or
4. Testified or is about to testify in any proceeding under the
provisions of this title; or
5. Elected to participate or not to participate in a certified
workplace medical plan as provided in Section 14 of th is title.
B. No person, firm partnership, corporation, or other entity
may discharge any employee during a period of temporary total
disability solely on the basis of absence from work.
C. After an employee’s period of temporary total disability
has ended, no person, firm, partnership, corporation, or other
entity shall be required to rehire or retain any employee who is
determined to be physically unable to perform his assigned
duties. The failure of an employer to rehire or retain any such
employee shall in no manner be deemed a violation of this section.
In 2005, the Legislature added the following to 85 O.S. 2001 §5:
D. No person, firm, partnership, corporation or other entity
may discharge an employee for the purpose of avoiding payment of temporary total disability benefits to the injured employee.
2. The employment application provides:
As conditions of my employment with Bar-S foods Co., I
hereby consent: (1) to provide samples of my blood and/or urine
for analysis when reasonably requested during the course of my
employment and to comply with the Bar-S Foods Co. Drug and
Alcohol Testing Policy; (2) to utilize the Bar-S Foods Co. Problem
Resolution Process to resolve any and all grievances, claims, and
disputes which are in any way related to my employment or
termination of my employment; (3) to submit unresolved legal
claims or disputes which are in any way related to my employment or termination of my employment to exclusive, final, and
binding arbitration as provided in the Bar-S Foods Co. Problem
Resolution Process; (4) to abide by the terms and conditions of all
current Bar-S rules, guidelines, policies, procedures, and Employee Handbook provisions, as those terms and conditions may be
modified by Bar-S Foods Co. from time to time.
I understand and agree that my employment by Bar-S Foods
is conditioned upon my consent to submit any legal claim or
dispute which in any way relates to my employment or termination of my employment to exclusive, final, and binding arbitration in accordance with the current Bar-S Foods Co. Problem
Resolution Process, a copy of which has been made available for
my review. I understand that this requirement of exclusive, final
and binding arbitration applies to any claim of unlawful harassment or discrimination arising under Title VII of the Civil Rights
Act of 1964, as amended; under the Age Discrimination in
Employment Act, as amended; or under any similar state antidiscrimination statutes, as well as to any other legal claims or
disputes arising from my employment or termination of my
employment. As a condition of my employment by Bar-S Foods
Co., I expressly waive any right I might otherwise have had to a
jury trial of claims arising from my employment or termination
of my employment.
Vol. 78 — No. 28 — 10/13/2007
3. The trial court’s rationale for denying the motion to dismiss/
motion to compel is found in the written decision, filed March 9, 2005,
and attached to the Journal Entry of Judgment filed March 24, 2005,
denying Bar-S’s motion. It provides, in part:
The plaintiff did agree to mediate any claims regarding her
employment when she became employed at Bar-S. However, in
the instant action, the plaintiff asserts a right created by statute
in Oklahoma.
I do not see where the employment agreement addressed the
issue of workers comp claims other than to exclude claims covered by workers comp from the process. The fact that the
employer (the defendant in this case) requires that employees
(plaintiff in this case) (sic) to consent to mediation as a condition
of employment does not excuse the defendant from complying
with the state’s workers comp law. And if the employer must
comply with the worker’s comp law, how could this court find
that the plaintiff waives the protection of that act? The defendant
attaches several relevant rulings of other courts; however none
of them deal with a workers comp claim (so far as I can tell).
My decision is that defendant’s motion to dismiss must be
denied and overruled. In making this decision I make no
assumptions regarding the validity or invalidity of the plaintiff’s
claim.
4. Supreme Court Rule 1.60(i) refers to district court orders made
under the provisions of 15 O.S. 1991 §817, part of the Oklahoma Uniform Arbitration Act which was recodified at 12 O.S. Supp. 2005,
§§1851 et seq. Under the recodified statute, 12 O.S. Supp. 2005
§1879(A)(1) allows for an appeal from an order denying a motion to
compel arbitration.
5. 9 U.S.C. §2 provides:
A written provision in any maritime transaction or a contract
evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or
transaction, or the refusal to perform the whole or any part
thereof, or an agreement in writing to submit to arbitration an
existing controversy arising out of such a contract, transaction, or
refusal, shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any
contract.
6. Bar-S contends Thompson’s argument for exclusive jurisdiction
in the district court should not be considered because it was not raised
in the trial court or on appeal before the Court of Civil Appeals. However, because this issue affects our jurisdiction, we will consider it.
7. 85 O.S. 2001 §7 provides:
Except as otherwise provided for by law, the district courts
of the state shall have jurisdiction, for cause shown, to restrain
violations of this act.
8. This contention is also based on Bar-S’s offer to waive her lack of
compliance with preliminary steps in the PRP process. Thompson
questions whether Bar-S can unilaterally waive these requirements,
which if unresolved, would then lead to arbitration, step 5.
9. In her petition for certiorari, Thompson argued COCA’s decision
established new law in a wrongful discharge claim filed under 85 O.S.
§§5-7. She raised three reasons for granting certiorari. First, she claims
the Bar-S agreement, which gives enforcement responsibility of the Act
to an arbitrator, conflicts with legislative intent, because 85 O.S. 2001
§7 provides that district courts have jurisdiction over claims for the
retaliatory discharge of Workers’ Compensation claimants. Second,
she claims COCA erroneously ruled employers can force employees to
sign arbitration clauses as a condition to employment and to waive all
rights to a trial on her retaliatory discharge claims, as required by the
Bar-S agreement. Third, she contends the agreement is invalid under
substantive Oklahoma law and cannot be made valid because an arbitrator is given authority to waive illegal sections of it.
10. The PRP provides the policy of Bar-S is “to resolve any dispute
or claim arising from or related to employment or termination of
employment through this Problem Resolution Process” and “[i]s the
exclusive, final, and binding procedure for resolving all employmentrelated claims and disputes including but not limited to claims of
unlawful employment discrimination, termination in breach of contract, violations of federal or state statutes or public policy, and
employment torts, except claims covered by worker’s compensation
insurance or unemployment insurance.” See PRP Description, Paragraph I., POLICY.
11. 12 O.S. Supp. 2005 §95 provides in part:
A. Civil actions other than for the recovery of real property can only be
brought within the following periods, after the cause of action shall
have accrued, and not afterwards:
...
2. Within three (3) years: an action upon a liability created by statute other than a forfeiture or penalty; . . . .
2621
12. Although the Supreme Court in Mitsubishi, supra, held the
FAA required arbitration under the parties’ agreement, the Court
stated:
Of course, courts should remain attuned to well-supported
claims that the agreement to arbitrate resulted from the sort of
fraud or overwhelming economic power that would provide
grounds ‘for the revocation of any contract.’
473 U.S. 614, 627, 105 S.Ct. 3346, 3354, citing 9 U.S.C. §2, Southland
Corp. v. Keating, 465 U.S. 1, 16, n. 11, 104 S.Ct. 852, 861, n. 11, 79 L.
Ed.2d 1 (1984), and The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15,
92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972).
13. See note 5, supra.
14. See also 15 O.S. 2001 §106, Good consideration defined:
Any benefit conferred, or agreed to be conferred upon the
promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered
by such person, other than such as he is at the time of consent
lawfully bound to suffer, as an inducement to the promisor, is a
good consideration for a promise.
15. The Court of Appeals held in that case that the jury could have
construed the language used as a binding agreement to give notice of
cancellation und thus found adequate consideration.
16. The employee handbook is not part of the record on appeal.
17. See ¶4, supra.
2007 OK 76
THERESA SPENCER, Plaintiff/Appellant, v.
OKLAHOMA GAS & ELECTRIC
COMPANY, Defendant/Appellee.
No. 103,404. October 9, 2007
CERTIORARI TO THE COURT OF CIVIL
APPEALS, DIVISION I
¶0 A disabled mother of three, the plaintiff/
appellant, Theresa Spencer (Spencer/customer), filed an application for housing assistance.
Because the defendant/appellee, Oklahoma
Gas and Electric Company (OG&E/electric
company), refused to open an account in Spencer’s name, the application was denied. The
electric company asserted that the customer
had an outstanding balance on a 2002 account
of $483.32. Spencer filed suit seeking a declaration that, having paid the account in full, she
did not owe the electric company any further
monies joined with a plea for damages. After a
year of litigation, OG&E offered to confess
judgment in the amount of $5,000.00, exclusive
of costs and attorney fees. After accepting the
offer, Spencer sought $8,775.37 in attorney fees
and costs. OG&E opposed the award and
countered for an award of attorney fees and
costs in its favor. The trial court awarded Spencer $2,500.00 in attorney fees and the Court of
Civil Appeals affirmed. We determine that: 1)
the failure to follow the directives of Burk v.
Oklahoma City, 1979 OK 115, 598 P.2d 659 in
setting the attorney fees and to make an award
consistent with the evidence presented constitutes an abuse of discretion requiring reversal;
and 2) under the facts and evidence presented,
$7,114.50 in attorney fees should be taxed and
collected as costs against OG&E.
2622
COURT OF CIVIL APPEALS OPINION
VACATED; TRIAL COURT AFFIRMED IN
PART AND REVERSED IN PART;
REMANDED FOR DETERMINATION OF
APPEAL AND CERTIORARI RELATED
ATTORNEY FEES.
Jerry L. Colclazier, COLCLAZIER & ASSOCIATES, Seminole, Oklahoma, for plaintiff/
appellant,
William P. Tunell, RAINEY, ROSS, RICE &
BINNS, P.L.L.C., Oklahoma City, Oklahoma,
for defendant/appellee.
WATT, J.:
¶1 To dispose of the certiorari petition, we
must resolve two issues. The first is whether
the trial court abused its discretion in reducing
the requested attorney fees of $8,775.37 by
more than $6,000.00. It is apparent from the
transcript of the hearing on the attorney fees
issue that: 1) there was no real attempt to determine the amount to be awarded under the
standards of Burk v. Oklahoma City, 1979 OK
115, 598 P.2d 659; and 2) no rational relationship exists between the attorney fees awarded
and the evidence presented. Therefore, we
hold that the failure to follow the Burk directives and to award attorney fees consistent
with the evidence constitutes an abuse of discretion requiring reversal.
¶2 The second issue requiring resolution is
the appropriate fee to be awarded for Spencer’s
representation in the underlying cause. Under
the facts and the evidence presented, we hold
that $7,114.50 in attorney fees should be
awarded as costs against OG&E.
FACTS
a. Underlying cause.1
¶3 The facts of the underlying action are
highly disputed. Nevertheless, it is uncontested that Spencer, a disabled mother of three,
paid her account with the electric company in
full on November 13, 2002. The debt of approximately $484.00 was paid in cash for which the
customer received a receipt. Two years later,
Spencer applied for housing assistance.2 She
alleges her application was denied because
OG&E refused to extend Spencer service, based
on allegations that the November, 2002 bill
remained outstanding,3
¶4 In January of 2005, Spencer filed suit seeking a declaration that she had paid her debt in
Vol. 78 — No. 28 — 10/13/2007
full to OG&E and requesting damages. OG&E
answered in March raising affirmative defenses of insufficient service, unclean hands,
limitations, failure to mitigate, Spencer’s negligence and federal preemption. In addition,
OG&E counterclaimed for breach of contract
alleging that, at the customer’s request, the
cash payment had been refunded and replaced
with her personal check which was returned
for insufficient funds. The electric company
sought payment for the outstanding bill.
OG&E’s answer and amended answer and
counterclaim were followed a month later
with a motion to dismiss adding arguments
of improper venue and lack of authority to
award damages in a declaratory judgment
action. Attached to the motion to dismiss is an
affidavit of an OG&E employee explaining the
activity report of the electric company indicating that Spencer made the cash payment on her
account, requested its reversal and substituted
a check which was returned dishonored. The
record contains a copy of Spencer’s cash
receipt.4 Notably absent therefrom is a copy of
the allegedly dishonored check. The customer
contends that the check would be impossible to
resurrect as she had no checking account upon
which to write a draft when she made the cash
payment.
b. Attorney fees issue.
¶5 On May 19, 2005, the trial court overruled
OG&E’s motion to dismiss. A year after the
customer filed her petition, the electric company offered to confess judgment in the amount
of $5,000.00 exclusive of “any costs or attorney
fees.”5 The offer of judgment was made pursuant to 12 O.S. §940(B).6 Subsection A7 of the
same statute specifically provides that the prevailing party shall8 be allowed reasonable attorney fees, court costs and interest. The offer was
accepted the day after its filing and in February
of 2006, Spencer filed her application for attorney fees and costs in the sum of $8,775.37.
Despite having made an offer of judgment
under a statute allowing the collection of
attorney fees, OG&E responded that none of
the requested costs were recoverable and no
statutory basis existed for the assessment of
attorney fees.
¶6 In the alternative, OG&E asserted that
Spencer’s application for attorney fees lacked
trustworthiness. The assertion was based on
discrepancies existing between the submitted
request and a draft billing statement Spencer
provided to OG&E on January 26, 2006.9 If
Vol. 78 — No. 28 — 10/13/2007
attorney fees were awarded, OG&E argued
that they should be reduced by $3,450.00
reflected by the alleged differences in the draft
statement and the statement submitted with
Spencer’s application. In addition, the electric
company insisted that the customer’s attorney
fees were unreasonable, the hourly rates were
insupportable and $840.00 in fees were incurred
because of the attorney’s mismanagement of
the cause, specifically his need to file a motion
to vacate after missing a disposition docket.
Finally, OG&E sought the award of attorney
fees in its favor based on equitable grounds10
alleging that Spencer misrepresented facts
relating to Spencer’s inability to obtain
housing assistance.
¶7 The hearing on Spencer’s attorney fees
and costs application was held on April 21,
2006. The trial court found that Spencer was
entitled to attorney fees under 12 O.S. Supp.
2002 §93611 as a result of OG&E having counterclaimed for the payment of an outstanding
amount on the customer’s utility account and
pursuant to 12 O.S. 2001 §93812 allowing the
recovery of attorney fees in civil actions to
retrieve overpayments for utility services or to
establish the right to such services.
¶8 At the hearing, Spencer’s attorney testified as to the reasonableness of his hourly rate
of $180.00 for out of court time and $250.00 for
court appearances. The attorney also explained
the differences between the draft statement
submitted to OG&E and the statement submitted with his application for attorney fees as
having resulted from computer difficulties in
his office requiring him to reconstruct the statement from his office records. The attorney testified that the reformulated statement was
extremely accurate and that he believed the
47.68 hours reflected in the statement were reasonable, especially considering the electric
company’s statements indicating they had a
minimum of 125 hours of attorney time
invested in the cause.13
¶9 The trial court announced its decision at
the conclusion of the hearing, listing the factors
to be considered under Burk v. Oklahoma City,
1979 OK 115, 598 P.2d 659 when making an
attorney fees award. Nevertheless, the trial
court concluded the ruling with the assumption that the suit was never anything more
than a $5,000.00 case and awarded Spencer
$2,500.00 to be taxed against OG&E along with
costs.14
2623
¶10 Spencer appealed asserting that the trial
court abused its discretion in reducing the
requested attorney fees over $6,000.00 and
arguing that, rather than being reduced, the
requested attorney fees should have been
increased under Burk v. Oklahoma City, 1979
OK 115, 598 P.2d 659 . In an unpublished opinion, the Court of Appeals affirmed. On April
16, 2007, Spencer filed her petition for certiorari. OG&E filed its answer on May 8th. On
June 28, 2007, we granted certiorari to settle the
attorney fees dispute.
¶11 a. The failure to follow the directives of
Burk v. Oklahoma City in setting the
attorney fees and to make an award
consistent with the evidence presented
constitutes an abuse of discretion requiring
reversal.
¶12 Spencer asserts that the trial court abused
its discretion in reducing the requested fee of
$8,775.37 by more than $6,000.00. OG&E argues
that there was no abuse of discretion and that
the award should stand. We disagree with the
electric company’s contention.
1) Burk analysis.
¶13 A trial court’s attorney fees award is
reviewed for abuse of discretion.15 An abuse of
discretion occurs when a decision is based on
an erroneous conclusion of law or where there
is no rational basis in evidence for the ruling.16 Generally, the correct formula for calculating a reasonable fee is to: 1) determine the
compensation based on an hourly rate; and 2)
enhance the fee through consideration of the
factors outlined in Burk v. Oklahoma City, 1979
OK 115, 598 P.2d 659 (Burk factors).17 In
all cases, the attorney fees must bear some
reasonable relationship to the amount in
controversy.18
¶14 The factors set out in Burk v. Oklahoma
City are: time and labor required; novelty and
difficulty of the questions; skill requisite to perform the legal service; preclusion of other
employment; customary fee; whether the fee is
fixed or contingent; time limitations; amount
involved and results obtained; experience, reputation and ability of the attorneys involved;
risk of recovery; nature and length of relationship with the client; and awards in similar
causes. An attorney seeking an award must
submit detailed time records and offer evidence of the reasonable value of the services
performed based on the standards of the legal
community in which the attorney practices.19
Thereafter, steps are taken to determine a reasonable fee. First, from the detailed time
2624
records,20 a lodestar fee is arrived at by multiplying the attorney’s hourly rate by the hours
expended. Second, the fee may be enhanced by
application of the Burk factors. Finally, any fee
so calculated is subject to the rule that it must
be reasonable and bear some reasonable relationship to the amount in controversy.21
¶15 In Burk, we set forth the following
directive to trial courts:
A particular word of caution to the trial
judges of Oklahoma is here warranted.
When a question on appeal presents the
issue of reasonableness of attorney’s fees
awarded by the court, abuse of discretion
by the trial judge is the standard of review.
Therefore, the trial court should set forth
with specificity the facts, and computation
to support his award. While the compensatory fee is not all that difficult a problem on
review if the trial court has made findings
into the record regarding hours spent and
reasonable hourly rates, the value placed
on additional factors will be different in
each case. Obviously, the reasonable value
to be given for incentive fees should bear a
reasonable relationship to the aggregate
hourly compensation.
Here, the trial court listed the Burk factors in
making his ruling.22 Nevertheless, there is no
evidence that guidelines other than the comparison of the fee to the amount recovered
played any real role in setting the $2,500.00
attorney fees award. No baseline was arrived
at from either Spencer’s detailed time records
or the draft records offered by the electric company. The awarded fee did not result from the
multiplication of an hourly rate, based on evidence presented, times the hours expended.
Simply, the trial court awarded the fee based
on a determination that the cause was never
worth more than $5,000.00 and that it would
not support an award of more than $2,500.00 in
attorney fees. The award does not comport
with the guidelines of Burk v. Oklahoma City,
1979 OK 115, 598 P.2d 659.
2) Evidence relating to the attorney fees
issue.
¶16 Neither party presented an independent
witness to testify on the appropriate hourly
rate to be charged for attorney fees. Spencer’s
attorney testified that he had been practicing
law for seventeen years and that his rates of
$180.00 per hour for out of court time and
$250.00 per hour for court appearances were
appropriate, reasonable and consistent with
the rates of other attorneys in the Seminole
Vol. 78 — No. 28 — 10/13/2007
area.23 OG&E countered the proposed hourly
rate by supplying a copy of an Oklahoma Bar
Association Survey indicating that in 2002
metro area attorneys were charging $156.72 per
hour while non-metro attorneys were charging
$138.55. Interestingly enough, the OG&E attorney testified that he did not know what he
billed per hour.24 Spencer’s attorney also testified that he had put 47.68 hours into prosecuting the cause. The number of hours is reasonable when considered with OG&E’s admission
that it had in excess of 125 hours of attorney
time invested in the cause.25
¶17 Considering Spencer’s proposed in court
and out of court hourly rates applied to the
reconstructed billing statement, the amount
sought as attorney fees is $8,775.37. If only the
lower of the two hourly rates presented by
Spencer is applied to all time expended, the
attorney fee award would be $8,582.40. Applying OG&E’s proposed hourly rate, the award
would be $6,606.64. When the rates as proposed by Spencer are accepted and applied to
the draft statement, which OG&E insists is the
more accurate estimation of the time involved
in the case, the award would be $5,325.37.
Finally, if the $840.00 billed for time expended
on a motion to vacate judgment entered when
the attorney failed to appear at the disposition
docket is subtracted from this total, the proposed attorney fees would be reduced to
$4,487.37.
¶18 None of the proposed amounts, ranging
from almost $9,000.00 to a low of approximately $4,500.00, bears any rational relationship to
the trial court’s award of $2,500.00. When
divided by the hours Spencer had in the case,
the amount awarded is less than $53.00 per
hour for attorney time, one-third of the hourly rate proposed for a rural attorney in the
Tulsa area by OG&E, and a rate considered
reasonable by this Court almost thirty years
ago.26 The award of $2,500.00 for approximately
48 hours of attorney time is not supported by
reason or the evidence.
the reconstructed statement necessitated by a
computer crash. The electric company also
contended that Spencer’s attorney should not
be allowed to bill for $840.00 resulting from his
negligence in the necessity of the filing of a
motion to vacate after missing a disposition
docket. Had the trial court accepted the figures
OG&E proffered, the net amount of attorney
fees award would have been $4,487.37.
¶21 The time expended by Spencer’s attorney, 47.68 hours, is less than half of the 125
hours counsel for OG&E admits were put into
the cause. The only evidence presented by
Spencer on the hourly rate charged was the
testimony of her attorney that he charged
hourly rates of $180.00 for out of court time
and $250.00 per hour for court appearances.
The electric company presented a 2002 Oklahoma Bar Association Survey report urging the
trial court to rely on the mean average of
$138.55 for non-metro attorneys. However,
when the report is examined, it is apparent that
40.48 percent of non-metro attorneys surveyed
charge between $126 and $150 per hour.28
¶22 Under the facts presented, it appears that
a reasonable calculation for a lodestar fee is
47.68 hours at the rate of $150.00 for a total of
$7,162.00. Nevertheless, we also agree that it
would be egregious to require either the attorney’s client or OG&E to bear the burden of
paying for the attorney’s mistake in failing to
appear for the disposition docket. Therefore,
4.65 hours times the hourly rate of $150 for a
total of $697.50 shall be deducted from the
lodestar fee.29 Having so done, we determine
that a base fee of $6,464.50 should be awarded
to Spencer and assessed as costs against
OG&E.
1) Lodestar fee.27
¶23 The lodestar fee, which exceeds Spencer’s award by $1,464.50, is not unreasonable
when compared to the $5,000.00 confessed
judgment. The attorney fees awarded are thirty
percent more than the award. While we are
committed to the rule that a fee for legal services must bear some reasonable relationship
to the judgment, we have never identified a
percentage above which a fee’s relationship
to the damage award must be deemed
unreasonable per se.30
¶20 We now turn to the issue of the attorney
fees to be awarded. As noted Spencer sought
$8,775.57 in attorney fees before the trial court.
OG&E argued that no attorney fees should be
awarded. In the alternative, it asserted that the
requested amount be reduced by $3,450.00 for
discrepancies between its draft statement and
¶24 In Southwestern Bell Telephone Co. v.
Parker Pest Control, Inc., 1987 OK 16, ¶17, 737
P.2d 1186, we approved a $3,000 fee award for
a suit in which the plaintiff sought $3,867 and
the defendant confessed judgment for $1,500.
In Arkoma Gas Co. v. Otis Engineering Corp.,
1993 OK 27, ¶6, 849 P.2d 392, we affirmed a fee
¶19 b. Under the facts and evidence
presented, $7,114.50 in attorney fees should
be awarded to the customer.
Vol. 78 — No. 28 — 10/13/2007
2625
award of $5,500 in a breach of warranty case in
which the plaintiff sued for more than $70,000
and ultimately recovered only $100.31 Clearly,
the allowance awarded in the instant case is
within the range of fees in relation to damages
previously approved by this Court.
2) Incentive fee.
¶25 Spencer asserts that the awarded fee
should be enhanced specifically when considering the following Burk factors: time and
labor required; novelty and difficulty of the
questions; the fact that billing the client for any
fees would have been futile as she was unable
to pay the same; the amount at issue and the
results received; and the undesirability of the
cause. Undoubtedly, OG&E opposes enhancement on grounds that the original award of
$2,500.00 was a reasonable fee.
¶26 Although this cause began as a simple
declaratory judgment action with the hope of
some money damages to be collected, it quickly became much more complicated. OG&E
raised affirmative defenses of insufficient service, unclean hands, limitations, failure to mitigate, Spencer’s negligence and federal preemption. Ultimately the electric company filed
a motion to dismiss adding arguments of
improper venue and lack of authority to award
damages in a declaratory judgment action.
Furthermore, this is a cause that Spencer’s
attorney took knowing that he would most
likely not receive any fee from the disabled
mother with three dependents.32 Five thousand
dollars to an individual in Spencer’s situation
most certainly was significant. Finally, this was
not an attractive case. Although it involved a
“David vs. Goliath” battle, there was little
chance that the case would create a windfall in
favor of Spencer’s attorney in the nature of
either the attention of the press or an increased
client base.
¶27 Conversely, Spencer has been awarded
fees based on a reasonable hourly rate and the
time dedicated to this cause most certainly did
not prevent the taking on of additional clients
or caseloads. Under all these facts, we determine that the reasonable loadstar fee of
$6,464.50 should be increased as an incentive
by $650.00, approximately ten percent.33 We
hold that the total fee to be collected as costs
from OG&E in Spencer’s favor is $7,114.50.
CONCLUSION
¶28 Discretion is abused, so as to warrant
reversal, when a trial judge makes a clearly
erroneous conclusion and judgment, against
2626
reason and the evidence.34 On this record, we
are constrained to hold that the award set was
without a basis in reason or evidence and an
abuse of discretion occurred. The failure to follow the directives of Burk v. Oklahoma City,
1979 OK 115, 598 P.2d 659 in setting the attorney fees and to make an award consistent with
the evidence presented constitutes an abuse of
discretion requiring reversal. Under the facts
and evidence presented, $7,114.50 in attorney
fees should be awarded as costs against
OG&E.
¶29 Spencer requested appeal related attorney fees in a separate section of the brief in
chief filed on December 22, 2006. The request
complies with Rule 1.14, Supreme Court Rules,
12 O.S. 2001, Ch. 15, App. 1. Appeal related
attorney fees may be awarded in cases where
there is statutory authority to award a fee for
legal services rendered in the underlying
cause.35 The trial court found, and we agree,
that the award of attorney fees was appropriate
under either 12 O.S. Supp. 2002 §93636 or 12 O.
S. 2001 §938.37 The application is granted. On
remand, the trial court shall conduct an adversarial hearing to determine a reasonable fee for
legal services provided to Spencer in the appeal
and certiorari related proceedings.38
COURT OF CIVIL APPEALS OPINION
VACATED; TRIAL COURT AFFIRMED IN
PART AND REVERSED IN PART;
REMANDED FOR DETERMINATION OF
APPEAL AND CERTIORARI RELATED
ATTORNEY FEES.
EDMONDSON, V.C.J., OPALA, KAUGER,
WATT, TAYLOR, COLBERT, JJ. concur.
WINCHESTER, C.J., HARGRAVE, J. concur
in result.
1. We recognize that acceptance of a confessed judgment removes
all prejudgment issues from the trier of fact. Fleet v. Sanguine, Ltd.,
1993 OK 76, ¶9, 854 P.2d 892. Here, those facts are not considered for
the purpose of determining whether the judgment confessed was supported by OG&E’s actions. Rather, the actions of the parties are
reviewed here to the extent necessary to determine only the attorney
fees issue. Moreover, a judgment based on the agreement of the parties
can do what a trial court may not, so long as the agreement does not
contravene public policy. Ingram v. Knippers, 2003 OK 58, ¶14, 72 P.3d
17; Whitehead v. Whitehead, 1999 OK 91, ¶10, 995 P.2d 1098.
2. Spencer sought assistance under the so called Section 8 housing
program pursuant to the United States Housing Act of 1937 (Housing
Act). The Housing Act authorizes private landlords who rent to low
income tenants to receive “assistance payments” from the Department
of Housing and Urban Development (HUD) in an amount calculated
to make up the difference between the tenants’ rent payments and a
“contract rent” agreed upon by the landlords and HUD. Cisneros v.
Alpine Ridge Group, 508 U.S. 10, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993).
Under the program, the tenant pays approximately 30% of income
toward the monthly rent, with the local housing authority paying the
remainder directly to the landlord. See, Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 296 (2ndCir. 1998); see generally, 42
U.S.C. §1437f.
Vol. 78 — No. 28 — 10/13/2007
3. OG&E’s response to Spencer’s application for attorneys fees and
costs and reciprocal application for attorneys fees and costs, filed
March 14, 2006, Exhibit C, Deposition of Shirlene Smith providing in
pertinent part:
at pp. 3-4 “. . . Q Okay. Are you the designated officer, director or
managing agent for purpose of this subpoena for the Seminole Housing Authority?
A Yes. I am. . . .”
at p. 42 “. . . Q Ms. Smith, is it fair to say that if Ms. Spencer had had
an account in her name at OG&E, that she would have gotten
her Section 8 benefits?
A Right. . . .”
4. Plaintiff’s response to defendant’s motion to dismiss, Exhibit A,
filed May 13, 2005.
5. There is nothing in the record to support OG&E’s statement
informing the Court it attempted an early settlement. See, Answer to
Plaintiff/Appellant’s Petition for Writ of Certiorari, filed on May 8,
2007, providing at p. 6, fn. 2:
“In the penultimate paragraph of Plaintiff/Appellant’s Petition
for Writ of Certiorari, Plaintiff’s counsel attempts to characterize
OG&E as the party unwilling to settle, and instead adopting a
‘scorched earth policy’ in relation to the Plaintiff. See Petition for
Writ of Certiorari, page 9. These allegations are unfounded,
unverified, inaccurate, and untrue. To the contrary, this Court
will be happy to learn that OG&E, at the initial stages of the litigation, offered Plaintiff’s counsel a full settlement of the litigation, offering everything demanded in the Petition, without reservation. It is Plaintiff counsel’s refusal of this offer, and his
attempt to exploit the case for a nuisance settlement value, that
has led to all subsequent attorneys fees.”
6. In Finnell v. Seismic, see note 34, infra, we recognized that the
duty to pay attorney fees could result both from actual damage to
property and through a tort claim, the basis of which is the duty
derived from a contractual relationship.
7. Title 12 O.S. 2001 §940 providing in pertinent part:
“A. In any civil action to recover damages for the negligent or
willful injury to property and any other incidental costs related
to such action, the prevailing party shall be allowed reasonable
attorney’s fees, court costs and interest to be set by the court and
to be taxed and collected as other costs of the action.
B. Provided that, the defendant in such action may, not less than
ten (10) days after being served with summons, serve upon the
plaintiff or his attorney a written offer to allow judgment to be
taken against him. If the plaintiff accepts the offer and gives
notice thereof to the defendant or his attorney, within five (5)
days after the offer was served, the offer, and an affidavit that the
notice of acceptance was delivered within the time limited, may
be filed by the plaintiff, or the defendant, verified by affidavit.
The offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly. . . .”
8. Generally, the use of “shall” signifies a command. Zeier v. Zimmer, Inc., 2006 OK 98, ¶7, 152 P.3d 861; Cox v. State ex rel. Oklahoma
Dept. of Human Services, 2004 OK 17, ¶21, 87 P.3d 607; United States
through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶7, 921 P.2d 338.
Nevertheless, there may be times when the term is permissive in
nature. Cox v. State ex rel. Oklahoma Dept. of Human Servs, this note,
supra; Minie v. Hudson, 1997 OK 26, ¶7, 934 P.2d 10-82; Texaco, Inc. v.
City of Oklahoma City, 1980 OK 169, ¶9, 619 P.2d 869.
9. The offer to confess judgment was filed on January 30 and
accepted on January 31, 2006. It can be assumed that the draft billing
statement was provided to OG&E as a prelude to the offer to confess
judgment.
10. Dean Bailey Olds, Inc. v. Richard Preston Mtr. Co., Inc., 2000 OK
89, ¶15, 32 P.3d 816; City Nat’l Bank & Trust Co. v. Owens, 1977 OK 86,
¶15, 565 P.2d 4.
11. Title 12 O.S. Supp. 2002 §936 providing:
“In any civil action to recover for labor or services rendered, or
on an open account, a statement of account, account stated, note,
bill, negotiable instrument, or contract relating to the purchase or
sale of goods, wares, or merchandise, unless otherwise provided
by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set
by the court, to be taxed and collected as costs.”
12. Title 12 O.S. 2001 §938 providing:
“In any civil action or proceeding to recover for the overpayment
of any charge for water, sanitary sewer, garbage, electric or natural gas
service from any person, firm or corporation, or to determine the right
of any person, firm or corporation to receive any such service, the
prevailing party shall be allowed a reasonable attorney fee to be set by
the court, to be taxed and collected as costs.”
Vol. 78 — No. 28 — 10/13/2007
13. Transcript of proceedings, April 21, 2006, providing in pertinent
part at pp. 39-41:
“. . . MR. COLCLAZIER: . . . I’ve been practicing law for approximately 17 years , and, I believe, I have the experience and technical skills to charge rates of $180 an hour for out of Court time;
and I believe that the rates which I charge are equal to the rates
which are charged by other attorneys in the Seminole area. I
charge $250 an hour for in Court time which I also believe is
appropriate and reasonable for other attorneys in the Seminole
area.
The only unusual thing about this case, Judge, that is - is that we
had a computer crash in which I lost much of my billing. . . . We
had to kind of recreate billing. . . .
But anyway in this case, I had to go back through the pleadings
to recreate the best that I could, and using my memory, and my
- the docketing program that we have in terms of Court appearances, I recreated the billing statement for the most part, and
believe it to be extremely accurate. When I finally got the information back from Mr. Tunell and compared it, it was very, very
close, and I believe I’ve asked for reimbursement of 47.68
hours.
When Mr. Tunell objected to my hourly rate as well as the number of hours that I put into the case, I subpoenaed his hourly
records for the same case. I believe he request - or he billed 125
hours for the same case that I billed 47 hours on . . .”
14. Transcript of proceedings, April 21, 2006, providing in pertinent
part at pp. 70-71:
“. . . THE COURT: . . . And taken into account the time and labor
required, the novelty and difficulty of the questions involved, the
skill required to perform the legal service properly, the likelihood
that the acceptance of this employment by Mr. Colclazier will
preclude other employment by him, taking into account the fee
customarily charged in this locality for similar legal services,
taken into account the amount involved, and the results obtained,
and defendant offered to settle for $5,000, the Plaintiff accepted
that, so I am operating on the assumption that this was a $5,000
case from the beginning, taken into account the time limitations
imposed by the circumstances, the experience, reputation, ability
of the lawyer performing the services, and generally trying to
figure out what is fair and reasonable, taken into account the
amount involved and the results obtained, and noting that this
starts out as a $484 utility bill dispute that ripens into a bigger
issue, and then it finally settled for $5,000, and everything else
involved that I’ve heard today, Plaintiff is awarded a fee of $2,500
to be assessed against the Defendant, plus Court costs that I’ve
already indicated. . . .”
15. McCabe v. McCabe, 2003 OK 86, ¶13, 78 P.3d 956; Tibbetts v.
Sight ‘N Sound Appliance Ctrs., 2003 OK 72, ¶3, 77 P.3d 1042; Merritt
v. Merritt, 2003 OK 68, ¶20, 73 P.3d 878; Hamilton v. Telex Corp., 1981
OK 22, ¶27, 625 P.2d 106.
16. Fent v. Oklahoma Natural Gas Co., 2001 OK 35, ¶12, 27 P.3d
477; KMC Leasing, Inc. v. Rockwell-Standard Corp., 2000 OK 51, ¶9, 9
P.3d 683; Abel v. Tisdale, 1980 OK 161, ¶20, 619 P.2d 608.
17. State ex rel. Department of Trans. v. Norman Indus. Dev. Corp.,
2001 OK 72, ¶8, 41 P.3d 960; Morgan v. Galilean Health Enterprises,
Inc., 1998 OK 130, ¶16, 977 P.2d 357.
18. Finnell v. Seismic, see note 34, infra; Southwestern Bell Tel. Co.
v. Parker Pest Control, Inc., see note 21, infra; Aroma Gas Co. v. Otis
Engineering Corp., 1993 OK 27, ¶6, 849 P.2d 392.
19. Finnell v. Seismic, see note 34, supra; Oliver’s Sports Center,
Inc. v. National Standard Ins. Co., 1980 OK 120, ¶8, 615 P.2d 291.
20. A fee award may be made based on reconstructed records. See,
Burk v. City of Oklahoma City, note 26, infra.
21. Rule 1.5, Rules Governing Professional Conduct, 5 O.S. 2001,
Ch. 1, App. 3-A; Finnell v. Seismic, see note 34, infra; Southwestern Bell
Tel. Co. v. Parker Pest Control, Inc., 1987 OK 16, ¶17, 737 P.2d 1186.
22. See note 14, supra.
23. Transcript of proceedings, April 21, 2006, Jerry L. Colclazier
testifying in pertinent part at pp. 39-40:
“. . . I’ve been practicing law for approximately 17 years, and, I
believe, I have the experience and technical skills to charge rates
of $180 an hour for out of Court time, and I believe that the rates
which I charge are equal to the rates which are charged by other
attorneys in the Seminole area. I charge $250 an hour for in Court
time which I also believe is appropriate and reasonable for other
attorneys in the Seminole area. . . .”
An attorney’s testimony and time records have been found sufficient
to uphold an attorney fees determination. Dean Bailey Olds, Inc. v.
Richard Preston Motor Co., Inc., see note 10, supra. Expert testimony
need not be included in the hearing on attorney fees to uphold the
award. CNA Ins. Co. v. Krueger, Inc, 1997 OK 142, ¶18, 949 P.2d 676.
2627
24. Transcript of proceedings, April 21, 2006, William P. Tunnell, Jr.
testifying in pertinent part at p. 65:
“. . . Q And what’s your billing rate?
A Honestly, I don’t know.
Q You don’t know what you charge the clients?
A No, I really don’t know. . . .”
25. Transcript of proceedings, April 21, 2006, William P. Tunnell, Jr.
testifying in pertinent part at pp. 63-64:
“. . . Q And as of February 3rd, 2006, how many hours had you
billed on this case?
A I don’t know.
Q Would you check your billing records and find out?
A Well, I can check Exhibit 1, which I’m looking at right now, and
I believe that it would be current through February 3rd, 2006. I
believe that it says here is 125.50 hours. . . .”
26. Burk v. City of Oklahoma City, 1979 OK 115, ¶12, 598 P.2d 659.
In 2000, we approved an hourly award of $165.00. Dean Bailey Olds,
Inc. v. Richard Preston Motor Co., Inc., see note 10, supra. In 1989, we
approved an hourly award of $150.00. Amcole Energy Corp. v. Mann
Indus., Inc. 1989 OK 32, ¶15, 785 P.2d 293.
27. The lodestar/compensatory/base fee is an amount reached by
multiplying the time spent by the hourly rate charged by the attorney.
It is the “lodestar” to which additional fees are added based upon the
factors enumerated in Burk v. City of Oklahoma City, see note 26,
supra. Tibbetts v. Sight ‘N Sound Appliance Ctr., see note 15, supra.
28. Exhibit B to OG&E’s response to plaintiff’s application for
attorneys fees and costs and reciprocal application for attorneys fees
and costs, filed March 14, 2006, providing that in 2002 40.48% of nonmetro attorneys were charging “$126 to $150.”
29. The determination that 4.65 hours of attorney time should be
deducted was calculated by dividing the $840.00 originally billed in
relation to vacation of the motion to dismiss by Spencer’s attorney’s
out of court rate of $180.00.
30. Finnell v. Seismic, see note 34, infra.
31. See also, AME, Inc. v. Consolidated Freightways, 1989 OK CIV
APP 57, 783 P.2d 499 in which the Court of Civil Appeals upheld an
attorney fees award as reasonable of $6,881.25 on a judgment of
$5,123.02.
32. Transcript of proceedings, April 21, 2006, Jerry L. Colclazier
testifying in pertinent part at p. 41:
“. . . Q In this particular case, did you send any other statement,
other than Exhibit 1, to your client detailing your fees?
A I don’t recall. Ms. Spencer did not have the ability to pay her
attorney’s fees and for that reason it’s possible.”
33. In Burk v. City of Oklahoma City, see note 26, supra, the Court
approved a 40% incentive fee of $50,000.
34. Tibbets v. Sight ‘n Sound Appliance Ctrs., see note 15, supra;
Finnell v. Seismic, 2003 OK 35, ¶8, 67 P.3d 339; Green Bay Packaging,
Inc. v. Preferred Packaging, Inc., 1996 OK 121, ¶32, 932 P.2d 1091;
Broadwater v. Courtney, 1991 OK 39, ¶7, 809 P.2d 1310.
35. Finnell v. Seismic, see note 34, supra; Baptist Medical Ctr. of
Oklahoma, Inc. v. Aguirre, 1996 OK 133, ¶17, 930 P.2d 213; Sisney v.
Smalley, 1984 OK 70, ¶20, 690 P.2d 1048.
36. Title 12 O.S. Supp. 2002 §936, see note 11, supra.
37. Title 12 O.S. 2001 §938, see note 12, supra.
38. Title 12 O.S. Supp. 2004 §696.4(C).
2007 OK 77
CREST INFINITI II, LP, d/b/a CREST
INFINITI, CREST INFINITI/ CADILLAC/
OLDS ISUZU; CREST AUTO GROUP, VAN
ENTERPRISES, and VT, INC., Petitioners, v.
HONORABLE BARBARA G. SWINTON,
DISTRICT JUDGE OF THE 7th JUDICIAL
DISTRICT COURT OKLAHOMA COUNTY,
Respondent.
No. 104,884. October 9, 2007
APPLICATION FOR EXTRAORDINARY
RELIEF
¶0 In Cause No. CJ-2006-9716, (consolidated with Nos. CJ-2006-9954 and CJ-20069955), on the docket of the District Court of
2628
Oklahoma County, plaintiffs sought to
depose two named individuals by providing notice to counsel representing corporations named as parties. Defendants sought
a protective order, filed a motion to quash
the deposition notices, and argued that
subpoenas were required and that the apex
doctrine barred the depositions. The Hon.
Barbara Swinton, District Judge, denied the
motions to quash and for protective order
and defendants sought extraordinary relief.
We hold that (1) a party may name a specific individual in a notice to take the deposition of a party corporation provided that
the individual is a director, officer, managing agent, or some other individual who is
authorized to speak for the corporation,
and (2) the burden to show that a deposition of a corporate official is for the purpose of annoyance, harassment, embarrassment, oppression or undue delay, burden or expense, is upon the party or individual objecting to discovery; further, the
Court declines to adopt the apex doctrine.
APPLICATION TO ASSUME ORIGINAL
JURISDICTION GRANTED; WRIT OF
PROHIBITION ISSUED WITH
DIRECTIONS
Paul A. Bezney, Tracy L. Stoker, Adkerson,
Hauder & Bezney, P.C., Dallas, Texas, for Petitioners Crest Infiniti II L.P. d/b/a Crest Infiniti;
Crest Infiniti/Cadillac/Olds Isuzu, and Crest
Auto Group; Van Enterprises; and VT, Inc.
Derrick Teague, Jeffrey W. Miller, Jennings,
Cook & Teague, Oklahoma City, Oklahoma, for
Petitioners Crest Infiniti II L.P. d/b/a Crest
Infiniti; Crest Infiniti/Cadillac/Olds Isuzu,
and Crest Auto Group; Van Enterprises; and
VT, Inc.
Steven E. Holden, Michael L. Carr, S. Travis
Dunn, Holden Carr & Skeens, Tulsa, Oklahoma, for Petitioners Crest Infiniti II L.P. d/b/a
Crest Infiniti; Crest Infiniti/Cadillac/Olds
Isuzu, and Crest Auto Group.
J. Logan Johnson, E. Edd Pritchett, Jr., Katherine T. Loy, Durbin, Larimore & Bialick, Oklahoma City, Oklahoma, for Real Party in Interest, Brent Edward Sykes, individually, and as
personal representative of the estate of Traci
Renae Sykes.
Ed Abel, Lynn B. Mares, Kelly S. Bishop, Abel
Law Firm, Oklahoma City, Oklahoma, for Real
Vol. 78 — No. 28 — 10/13/2007
Parties in Interest, Rodney Eischen & Shannon
Eischen.1
EDMONDSON, V.C.J.
¶1 Petitioners seek extraordinary relief
because the order of the trial court requires the
attendance of Cecil Van Tuyl and Larry Van
Tuyl for depositions via notice to petitioners’
counsel, although the named individuals are
not named parties. Cecil was noticed to appear
in Overland Park, Kansas, and Larry in Phoenix, Arizona. The notices are directed to the
named petitioners and specify the named individuals to be deposed. This controversy
involves first-impression issues involving procedures for compelling the attendance of corporate officials for deposition. We assume
original jurisdiction pursuant to Okla. Const.
Art. 7 §4 to address a first-impression issue.
Christian v. Gray, 2003 OK 10, ¶ 3, 65 P.3d 591,
596.
¶2 We may look to discovery procedures in
the federal rules when construing similar language in the Oklahoma Discovery Code. Scott
v. Peterson, 2005 OK 84, ¶ 22, 126 P.3d 1232,
1238; Conterez v. O’Donnell, 2002 OK 67, n.7, 58
P.3d 759, 761. Language in the Oklahoma Discovery Code at issue herein is similar to the
federal rules: Fed.R.Civ.P. 30(a)(1) and its counterpart in 12 O.S.Supp.2005 §3230(A)(1),2 Fed.
R.Civ.P. 30(b)(1) and its counterpart in 12 O.
S.Supp.2005 §3230(C)(1),3 and Fed.R.Civ.P.
30(b)(6) its counterpart in 12 O.S.Supp.2005
§3230(C)(5).4
¶3 Prior to the 1970 amendments to Rule 30
of the Federal Rules of Civil Procedure, a party
seeking to depose a corporation was required
to identify the corporate official to be deposed.
Operative Plasterers’ & Cement Masons Intern.
Ass’n v. Benjamin, 144 F.R.D. 87, 89 (N.D. Ind.
1992), citing, 4A J. Moore, J. Lucas & D. Epstein,
Moore’s Federal Practice ¶ 30.57[13] (2d ed
1992). A 1970 amendment added Rule 30 (b)(6)
which “provided an alternative procedure for
taking the deposition of an organization. Under
this procedure, the party taking the deposition
need only describe the subject matter of the
examination, and the organization is then
required to select and produce the persons
who will testify on its behalf.” Operative Plasterers’, 144 F.R.D. at 89. See Founding Church of
Scientology of Washington, D.C., Inc. v. Webster,
256 U.S.App.D.C. 54, 802 F.2d 1448 (D.C. Cir.
1986), cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98
L.Ed.2d 150 (1987), where the court stated,
Vol. 78 — No. 28 — 10/13/2007
“The Advisory Committee Note accompanying the Rule made clear that the new procedure
does not supplant but ‘supplements the existing practice whereby the examining party designates the corporate official to be deposed.’
The former procedure, long known to the bar,
thus remains available for litigants to employ if
they see fit.” Id. 802 F.2d at 1451. See also Moore
v. Pyrotech Corp., 137 F.R.D. 356, 357 (D.
Kan.1991); Sugarhill Records Ltd. v. Motown
Record Corp., 105 F.R.D. 166, 168-169
(S.D.N.Y.1985). The amended rule stated that it
“does not preclude taking a deposition by any
other procedure authorized in these rules.”
Founding Church of Scientology, 802 F.2d at 1451,
quoting, Fed.R.Civ.P. 30(b)(6).
¶4 Pursuant to Fed.R.Civ.P. 30(a)(1) and (b)(1)
a party may depose a party corporation and
name a specific individual to be deposed as
speaking for the corporation, but the party
may designate to speak for the corporation
only directors, officers, or managing agents. In
re Honda Am. Motor Co., Inc., 168 F.R.D. 535, 540
(D. Md. 1996); U.S. v. One parcel of Real Estate at
5860 North Bay Rd., Miami Beach, Florida, 121 F.
R.D. 439, 440 (S.D.Fla. 1988); GTE Products Corporation v. Gee, 115 F.R.D. 67, 68 (D.Mass.1987).
¶5 Petitioners argue that a deposition of a
corporate official must occur, if at all, pursuant
to §3230(C)(5) where the corporation names
the individual to be deposed. That is not the
practice under the similar federal rules. Section
3230(C)(5) expressly states that “This paragraph does not preclude taking a deposition by
any other procedure authorized in the Oklahoma Discovery Code.” We hold that the Oklahoma Discovery Code, like the Federal Rules
of Civil Procedure, authorizes more than one
method to depose an official of a corporation.5
An official may be named in the notice to the
corporate party, as in the controversy before us,
or an alternative procedure in §3230(C)(5) may
be used where specific information is sought
and the corporation designates the person to
be deposed. Language in Blue Tee Corp. v. Payne
Well Drilling, Inc., 2005 OK CIV APP 109, ¶ 12,
125 P.3d 677, 679-680, to the contrary is hereby
disapproved. We also hold that a party may
name a specific individual in a notice to take
the deposition of a party corporation provided
that the individual is a director, officer, managing agent, or some other individual who is
authorized to speak for the corporation.
¶6 While a notice to party’s counsel may be
used to compel a party to attend a deposition,6
2629
a subpoena is used to compel a non-party witness to attend a deposition and a witness fee
must be paid.7 The Two Amended Notices state
that they are directed to Crest Infiniti II, LP,
d/b/a Crest Infiniti, Crest Infiniti/Cadillac/
Olds Isuzu; Crest Auto Group; Van Enterprises;
and VT, Inc., with one notice naming Cecil Van
Tuyl and the other Larry Van Tuyl. The notices
are §3230(A)(1) & (C)(1) notices, not §3230
(C)(6) notices. The former requires the individual named in a notice to be a director, officer, managing agent, or some other individual
who is authorized to speak for the corporation.
If this requirement is not satisfied for this type
of notice a subpoena must be used to compel
the attendance of a non-party witness.
¶7 Petitioners state in their filings in the trial
court that Larry Van Tuyl is not an apex corporate official. They also stated that he is not an
officer, director, or employee of any of the
named parties; but this statement occurs in
Petitioners’ Supplemental Appendix, No. 15,
an “evidentiary supplement to motion to
quash” which shows a District Court file-stamp
of August 6, 2007, a few weeks after the date of
the trial court’s order, July 13, 2007, that is challenged in this proceeding. We decline to consider this evidentiary supplement and its
attached affidavit dated July 26, 2007, which
shows that it was created after the trial court’s
decision.8
tested factual issue of Larry’s status with
respect to the parties.10
¶10 Of course, pursuant to Rule 4 of the
Rules for District Courts, 12 O.S.Supp.2002,
Ch. 2, App., a party does not have a right to a
hearing because a process is available for presenting both facts and legal argument to the
trial court.11 However, when the elements of a
cause of action, or defense thereto, necessarily
involve a fact or facts contested by the parties
(contested material facts), the fact or facts must
be determined by the finder of fact at a hearing.
Edmondson v. Pearce, 2004 OK 23, n. 3, 91 P.3d
605, 611.12 The scope of Rule 4 includes motions
not involving the merits of the action; and facts
material to such motions, when contested,
must be tried by the appropriate trier of fact.
While stipulations of fact and admissions may
serve as evidentiary substitutes that dispense
with the need for proof of the conceded facts,
unsworn statements of counsel in a motion do
not constitute evidence. State v. Torres, 2004 OK
12, ¶ 29, 87 P.3d 572, 585.13
¶8 A real party in interest states that Larry
Van Tuyl owns or operates a company “that
along with Van and VT is involved with Crest’s
management, insurance programs, employee
programs. . . . Larry Van Tuyl has even participated in hiring Crest’s employees.” Petitioners’
Appendix, No. 5, at pg. 7. If Larry is a director,
officer, or managing agent of a party corporation he may be noticed, individually, for a
deposition through the corporation’s counsel
appearing in the trial court. But if Larry is not
of this classification his attendance at the deposition is as a non-party witness; and if he does
not consent to appear, a subpoena is a proper
procedure for compelling his attendance.
¶11 The fact question of whether Larry Van
Tuyl is, or is not, an apex corporate official or a
director, officer, or managing agent officer of
one of the parties was presented to the trial
court by unsworn statements of counsel.14 Resolution of this issue was necessary to adjudicate whether a subpoena was necessary to
compel his attendance. We recently explained
that “’Motions raising fact issues shall be verified by a person having knowledge of the facts,
if possible; otherwise, a verified statement by
counsel of what the proof will show will suffice
until a hearing or stipulation can be provided.’”
Oklahoma Oncology and Hematology, P.C. v. U.S.
Oncology, Inc., 2007 OK 12, n. 30, 160 P.3d 936,
950 (emphasis in original) (quoting Uniform
District Court Rule 4(c)). An uncontested fact
of Larry Van Tuyl’s corporate status could be
presented by affidavit in support of a motion
for a protective order, but here where that status is at issue, the fact was required to be determined by the trier of fact at the hearing on the
motions for a protective order and to quash.
¶9 The trial court transcript of the hearing on
the motion to quash the notices for depositions
shows the trial court determined that Larry’s
connection with Oklahoma was sufficient for
personal jurisdiction. Although petitioners’
record herein is insufficient to show Larry’s
status as a corporate official, or not, for the
purpose of this extraordinary writ proceeding,9
the trial court record before us does affirmatively show that the trial court expressly
declined to determine, at that time, the con-
¶12 Ordering Larry Van Tuyl to appear at a
deposition pursuant to a notice to counsel was
an abuse of discretion where he objected to the
deposition on the basis of his status with
respect to the corporate parties and that issue
was left unadjudicated by the trial court prior
to its order. We issue prohibition to prevent
enforcement of the District Court’s order compelling Larry Van Tuyl to appear at a deposition in accordance with a notice until the trial
court actually adjudicates his status and wheth-
2630
Vol. 78 — No. 28 — 10/13/2007
er a notice or subpoena is the proper method to
compel his attendance.15
¶13 Cecil Van Tuyl, as president of one of the
parties, may be noticed to attend a deposition
through counsel for the party corporation of
which he is president. However, in addition to
objecting to the form of process used to compel
his attendance, petitioners sought a protective
order based upon the “apex doctrine.” This
doctrine shields corporate officials at the apex
of a corporate hierarchy from depositions.
Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d
125, 127-128 (Tex.1995) (collecting cases). It
requires the party seeking the deposition to
show good cause that the official has unique or
superior personal knowledge of discoverable
information. Id. 904 S.W.2d at 128. If this showing is not made, the trial court grants a protective order and requires the party to obtain the
necessary discovery through less intrusive
methods.
¶14 Not all courts have adopted the apex
doctrine. See, for example, State ex rel Ford
Motor Company v. Messina, 71 S.W. 3d 602 (Mo.
2002), where that court stated the following.
This Court declines to adopt an “apex”
rule. . . . Even if the top-level employee has
discoverable information, the organization
or its top-level employee may seek a protective order. . . . The party or person
opposing discovery has the burden of
showing “good cause” to limit discovery. .
. . A protective order should issue if annoyance, oppression, and undue burden and
expense outweigh the need for discovery. .
. . For top-level employee depositions, the
court should consider: whether other methods of discovery have been pursued; the
proponent’s need for discovery by toplevel deposition; and the burden, expense,
annoyance, and oppression to the organization and the proposed deponent.
Id. 71 S.W.3d at 607 (material and citations
omitted).
Similarly, some federal courts have agreed that
an apex corporate official may seek a protective order, although the apex doctrine is not
adopted. For example, in Thomas v. International Business Machines, 48 F.3d 478 (10th Cir.
1995), a party sought to depose the Chairman
of the Board of Directors of IBM. The notice
sought his deposition in Oklahoma City. The
Chairman sought a protective order arguing
several grounds, including but not limited to
(1) the deposition was noticed for Oklahoma
City instead of the principle place of business
Vol. 78 — No. 28 — 10/13/2007
in White Plains, New York,16 (2) no other deposition of IBM personnel had occurred, (3) the
Chairman submitted an affidavit that he lacked
personal knowledge of the pertinent facts material to the plaintiff’s claim, (4) nothing in the
appellate record showed that the corporate
defendant had failed to make available for
deposition those corporate employees with
knowledge of the pertinent facts material to
plaintiff’s claim, and (5) the Chairman’s affidavit described the “severe hardship” because of
specific duties that conflicted with the scheduled deposition. Id. 48 F.3d at 483.
¶15 The apex doctrine places a burden on the
party seeking the deposition to show that the
corporate official has unique or superior personal knowledge of discoverable information,
and if the showing is not met a protective order
is issued. Crown Cent. Petroleum Corp. v. Garcia,
904 S.W.2d at 128. Neither Ford Motor Company
nor Thomas adopted the apex doctrine, but they
did recognize that a deposition of a corporate
official could be unduly burdensome and
oppressive under certain circumstances. In
both Ford Motor Company and Thomas the burden of showing oppression, annoyance, and
undue burden lies with the party opposing the
deposition.
¶16 Discovery may be limited or denied
when discoverable material is sought in an
excessively burdensome manner. Farmers Ins.
Co. v. Peterson, 2003 OK 99, ¶ 3, 81 P.3d 659, 660.
The party or person from whom a deposition is
sought may, with good cause to be shown,
request a protective order to “protect a party or
person from annoyance, harassment, embarrassment, oppression or undue delay, burden
or expense . . . .” 12 O.S.Supp.2004 §3226(C)(1).17
We have explained that this statute “shifts the
burden of showing “good cause” to the party
who opposes discovery. YWCA of Oklahoma
City v. Melson, 1997 OK 81, ¶ 15, 944 P.2d 304
308-309.
¶17 Petitioners resisted the deposition of
Cecil Van Tuyl based upon his status as an apex
corporate official. They argued that plaintiffs
failed to meet an apex doctrine burden of
“showing that these individuals have ‘a unique
personal knowledge’ or superior knowledge of
the matters at issue.” Brief at 11-12. We decline
to adopt a form of the apex doctrine that shifts
a burden to the party seeking discovery. In
Oklahoma the burden of showing “good cause”
is statutorily placed on the party objecting to
discovery and is part of that party’s motion for
a protective order.
2631
¶18 The record before us in this extraordinary writ proceeding includes petitioners’
motion to quash the deposition, their reply to
plaintiffs’ response, and a supplemental reply.
The latter two instruments state that Cecil Van
Tuyl and Larry Van Tuyl “have little, if any,
unique personal knowledge about the controversy at issue.” (reply at 4, supplemental reply
at 2.) They also state that the individuals “do
not have personal knowledge about the controversy at issue, and any information they could
offer would not be relevant to the particular
facts of this case.” Id. The instruments do not
identify plaintiffs’ claims and explain why
these officials have no knowledge regarding
those particular claims. For example, plaintiffs
argued in the trial court that the officials had
knowledge relating to the alleged related corporate structures, and that the information
plaintiffs sought was relevant to plaintiffs’
alter ego claims. Plaintiffs also argued that
defendants should not be allowed to “rely
solely on the blanket statement that these
witness[es] lack any information relevant to
the issues in this case.” We agree that petitioners must show more than these blanket statements to satisfy their burden for a protective
order. Petitioners did not explain why the corporate official, as such, would not have knowledge of information relating to plaintiffs’ causes
of action. They did not explain why the particular information sought by plaintiffs would
inflict annoyance, harassment, embarrassment,
oppression or undue delay, burden or expense
sufficient for issuance of a protective order
when that information was sought from this
particular individual. Petitioners did not
explain and identify, as did the White Plains
official in Thomas v. International Business
Machines, supra, the more appropriate corporate official to provide the information sought
by plaintiffs.
¶19 The transcript of the hearing on the
motion to quash contains a discussion of
whether the individuals “are connected
enough” for personal jurisdiction purposes,
but no discussion occurs relating to whether
the petitioners met their burden for a protective order. This is, in part, because petitioners’
filings sought to place the discovery burden on
the plaintiffs. Nothing in the transcript shows
that the trial court actually adjudicated petitioners’ claim that the deposition of Cecil Van
Tuyl would constitute harassment or abuse.
¶20 When addressing first-impression procedural issues in the context of extraordinary
relief we have, based upon certain circumstances, provided the parties with an opportu2632
nity to seek relief in the trial court based upon
our opinion. See, e.g., Christian v. Gray, 2003 OK
10, ¶ 1, 65 P.3d 591, 594; YWCA of Oklahoma City
v. Melson, 1997 OK 91, ¶ 25 944 P.2d 304 311312; White v. Wensauer, 1985 OK 26, 702 P.2d 15,
19. We issue a writ of prohibition and direct the
trial court not to enforce its order requiring
Cecil Van Tuyl and Larry Van Tuyl to appear
for depositions pursuant to notice provided to
counsel for petitioners. Our opinion does not
prevent plaintiffs from seeking to depose Cecil
Van Tuyl and Larry Van Tuyl in accordance
with this opinion, or prevent petitioners from
objecting to such depositions in accordance
with this opinion.
¶21 EDMONDSON, V.C.J., OPALA,
KAUGER, WATT, COLBERT, JJ., Concur
¶22 WINCHESTER, C.J., HARGRAVE, TAYLOR, JJ., Concur in Result
1. Counsel is listed in an opinion based upon an entry of appearance filed by that lawyer. State ex rel. Oklahoma Board of Medical Licensure and Supervision v. Pinaroc, 2002 OK 20, n. 1, 46 P.3d 114.
2. Fed.R.Civ.P. 30 (a) (1):
(1) A party may take the testimony of any person, including a
party, by deposition upon oral examination without leave of court
except as provided in paragraph (2). The attendance of witnesses may
be compelled by subpoena as provided in [Fed.R.Civ.P.] Rule 45. (Citation added to original).
12 O.S.Supp.2005 §3230 (A)(1):
1. A party may take the testimony of any person, including a party,
by deposition upon oral examination without leave of court except as
provided in paragraph 2 of this subsection. The attendance of witnesses may be compelled by subpoena as provided in [12 O.S.Supp.2002]
Section 2004.1 of this title. (Citation added to original).
3. Fed.R.Civ.P. 30(b)(1):
(1) A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other
party to the action. The notice shall state the time and place for taking
the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description
sufficient to identify the person or the particular class or group to
which the person belongs. If a subpoena duces tecum is to be served
on the person to be examined, the designation of the materials to be
produced as set forth in the subpoena shall be attached to, or included
in, the notice.
12 O.S.Supp.2005 §3230(C)(1):
A party desiring to take the deposition of any person upon oral
examination shall give notice in writing to every other party to the
action. The notice shall state the time and place for taking the deposition and shall state the name and address of each person to be examined, if known, and, if the name is not known, a general description
sufficient to identify the person or the particular class or group to
which the person belongs. The notice shall be served in order to allow
the adverse party sufficient time, by the usual route of travel, to attend,
and three (3) days for preparation, exclusive of the day of service of the
notice.
If a subpoena duces tecum is to be served on the person to be
examined, the designation of the materials to be produced, as set forth
in the subpoena, shall be attached to or included in the notice.
4. Fed.R.Civ.P. 30(b)(6):
(6) A party may in the party’s notice and in a subpoena name as the
deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the
organization so named shall designate one or more officers, directors,
or managing agents, or other persons who consent to testify on its
behalf, and may set forth, for each person designated, the matters on
which the person will testify. A subpoena shall advise a non-party
organization of its duty to make such a designation. The persons so
designated shall testify as to matters known or reasonably available to
Vol. 78 — No. 28 — 10/13/2007
the organization. This subdivision (b)(6) does not preclude taking a
deposition by any other procedure authorized in these rules.
12 O.S.Supp.2005 §3230(C)(5):
5. A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or
governmental agency and describe with reasonable particularity the
matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and
may set forth, for each person designated, the matters on which that
person will testify. Such designation of persons to testify and the subject of the testimony shall be delivered to the other party or parties
prior to or at the commencement of the taking of the deposition of the
organization. A subpoena shall advise a nonparty organization of its
duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.
This paragraph does not preclude taking a deposition by any other
procedure authorized in the Oklahoma Discovery Code.
5. While other methods for deposition of a corporate official may
be authorized by the Discovery Code, we need not address those since
they are not part of the controversy before us.
6. 12 O.S.Supp.2005 §3230(C)(1).
7. 12 O.S.2005 §3230(H)(2) (payment of fees when a party fails to
serve subpoena upon witness and witness does not attend for that
reason); 12 O.S.Supp.2005 §3230 (I)(1) (witness fee must be paid in
accordance with 12 O.S. §400).
8. See Christian v. Gray, 2003 OK 10, ¶ 15, 65 P.3d 591, 600, where
we declined to consider in the extraordinary writ proceeding an affidavit created after the decision of the trial court. Generally, a request for
prohibition in this Court must be preceded by the petitioner presenting
the same claim to the inferior tribunal. Schofield v. Melton, 1933 OK 447,
25 P.2d 279, 282. A part of a claim are facts and they should thus be
presented in the first instance to the trial court for its consideration in
issuing its order. This is important for several reasons. One reason is
that this Court does not make first-instance adjudications of fact when
exercising supervisory jurisdiction. S. W. v. Duncan, 2001 OK 39, ¶ 32,
24 P.3d 846, 857 (Court does not exercise its supervisory writ jurisdiction and grant prohibition to review the sufficiency of evidence underlying a District Court adjudication or to re-adjudicate a judge’s determination of facts.). See also Ethics Commission v. Cullison, 1993 OK 37,
850 P.2d 1069, 1080 (evidentiary issues are more properly the subject of
District Court proceedings). Another reason is that prohibition in a
discovery matter is based upon a petitioner showing an abuse of the
trial court’s discretion. Inhofe v. Wiseman, 1989 OK 41, 772 P.2d 389, 391.
A fact cannot be used to show an abuse of discretion when that fact
was not presented before the trial court prior to exercising its discretion. A supervisory writ proceeding is not for the purpose of presenting a record that should have been presented to the trial court.
9. S. W. v. Duncan, supra, and Ethics Commission v. Cullison, supra, at
note 7.
10. Of course, a hearing on a motion need not include a discussion
and adjudication on every aspect of the motion presented for adjudication. This is so because elements or parts of the motion may be decided
by the trial court without a hearing. See the discussion of District Court
Rule 4, infra. However, the transcript here shows that the trial court
declined to address the factual issue of Larry Van Tuyl’s corporate
status. When respondent judge was questioned by counsel on whether
her order compelling attendance by notice instead of subpoena was
“Even though Mr. Larry Van Tuyl is not an officer or director?”, she
responded with “That remains to be seen.” Petitioners’ App. No. 8,
Trans. at p.16.
11. Mott v. Carlson, 1990 OK 10, n. 6, 786 P.2d 1247, 1251. Rule 4(h)
provides that “Motions may be decided by the court without a hearing, and where this is done, the court shall notify the parties of its
ruling by mail.” A motion need not be adjudicated at a hearing when
parties have an opportunity to fully present legal argument and facts
in support. State ex rel. Oklahoma Bar Association v. Hornung, 1991 OK
56, 813 P.2d 1041, 1042; State ex rel. Oklahoma Bar Association v. Gasaway,
1993 OK 133, 863 P.2d 1189, 1200.
12. This is one reason why we have explained that contested material facts may not be adjudicated on either a motion to dismiss or for
summary judgment, but are adjudicated by the proper finder of fact at
the proper proceeding for that purpose. See, e.g., Colton v. Huntleigh
USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073 (principle stated with
regard to jurisdictional facts).
Vol. 78 — No. 28 — 10/13/2007
13. We also explained in Torres that “In motion practice, only facts
affirmed by affidavit need be countered by counter-affidavit.” State v.
Torres, at note 52, 87 P.3d 572, 585. Of course, conflicting or competing
affidavits may not be used to adjudicate those facts. St. Clair v. Hatch,
2002 OK 101, ¶ 15, 62 P.3d 382, 387; Kincaid v. Black Angus Motel, Inc.,
1999 OK 54, ¶ 20, 983 P.2d 1016, 1022. See also Colton v. Huntleigh USA
Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073. Cf. Bank of Wichitas v. Ledford, 2006 OK 73, n. 13, 151 P.3d 103, 109 (summary process is not used
to substitute a trial by affidavit for an adjudication by the finder of
fact).
14. We note that unlike petitioner’s Appendix herein, the Appendix of a real party in interest contains several instruments, both sworn
and unsworn, attached to that party’s objection to petitioners’ motion
to quash. Because the trial court did not adjudicate Larry Van Tuyl’s
corporate status we decline the invitation to review these materials
and determine their sufficiency for the purpose of objecting to petitioners’ motion to quash. See authority cited in notes 7 and 8, supra.
15. We have issued prohibition where a trial court adjudicates part
of a cause of action and makes the adjudication effective as if the entire
cause was adjudicated. Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, ¶ 10,
87 P.3d 598, 601; Liberty Bank and Trust Company of Oklahoma City v.
Rogalin, 1996 OK 10, 912 P.2d 836, 838. Expressly not adjudicating a fact
necessary to show entitlement to the legal relief requested, and yet
granting that relief, is similar to expressly not adjudicating part of a
cause of action and yet making that adjudication effective as if the
cause was adjudicated. Prohibition is a proper remedy to prevent
enforcement of such orders when this Court exercises its discretionary
supervisory jurisdiction. Chandler, supra, Liberty Bank, supra.
16. Depositions of corporate officials “are ordinarily taken at the
corporation’s principal place of business unless justice requires otherwise.” Moore v. Pyrotech Corp., 137 FRAT 356, 357 (D. Kan.1991), citing,
8 Wright & Miller, Federal Practice and Procedure: Civil §2112, at 410 (2d
ed. 1970). See also Thomas v. International Business Machines, 48 F.3d 478,
483 (10th Cir. 1995) (principle explained); Magnus Electronics, Inc. v.
Masco Corp. of Indiana, 871 F.2d 626, 630 (7th Cir. 1989), cert. denied, 493
U.S. 891, 110 S.C. 237, 107 L.Ed.2d 188 (1989) (magistrate’s order
requiring corporation to produce corporate officers in Chicago was
correct because location was corporation’s principal place of business);
Salter v. Upjohn Company, 593 F.2d 649, 651-652 (5th Cir. 1979) (principle
explained and characterized as being well settled). The Oklahoma
Discovery Code provides that “A party, in addition to the places where
a witness may be deposed, may be deposed in the county where the
action is pending or the county where he or she is located when the
notice is served.” 12 O.S.Supp.2005 §3230 (B) (2).
17. 12 O.S.Supp.2004 §3226(C)(1):
C. PROTECTIVE ORDERS.
1. Upon motion by a party or by the person from whom discovery
is sought, accompanied by a certification that the movant has in good
faith conferred or attempted to confer, either in person or by telephone,
with other affected parties in an effort to resolve the dispute without
court action, and for good cause shown, the court in which the action
is pending or on matters relating to a deposition, the district court in
the county where the deposition is to be taken may enter any order
which justice requires to protect a party or person from annoyance,
harassment, embarrassment, oppression or undue delay, burden or
expense, including one or more of the following:
a. that the discovery not be had,
b. that the discovery may be had only on specified terms and conditions, including a designation of the time or place,
c. that the discovery may be had only by a method of discovery
other than that selected by the party seeking discovery,
d. that certain matters not be inquired into, or that the scope of the
disclosure or discovery be limited to certain matters,
e. that discovery be conducted with no one present except persons
designated by the court,
f. that a deposition after being sealed be opened only by order of
the court,
g. that a trade secret or other confidential research, development or
commercial information not be disclosed or be disclosed only in a
designated way, and
h. that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the
court;
2633
OKLAHOMA COUNTY CRIMINAL DEFENSE LAWYER’S ASSOCIATION
REQUEST FOR NOMINATIONS
2007
BARRY ALBERT AWARD FOR EXCELLENCE IN ADVOCACY
To honor Barry Albert and the standard of excellence which he set for all advocates, the Oklahoma
County Criminal Defense Lawyer’s Association (OCCDLA) is seeking nominations for the 2007 Barry
Albert Award for Excellence in Advocacy.
CRITERIA
The recipient of this award must be an Oklahoma attorney who practices in the Oklahoma County
Criminal Courts and is recognized as a zealous advocate in the spirit of Barry Albert:
• One who has consistently represented the criminally accused with great passion, tenacity,
and courage;
• One who has consistently put the best interest of the client first;
• One who has shown superior skill in the courtroom whether before judge, jury, or appellate court;
• One who has shown by example what it means to be a committed and true advocate for the
criminally accused.
Please submit nominations to OCCDLA, ATTN: Barry Albert Award Committee, 434 N.W. 11th Street,
Oklahoma City, OK. 73102 or FAX: (405) 285-2786 October 31, 2007 with a letter explaining why
you believe the nominated individual is deserving of the award. Nominations must be postmarked or
faxed by October 31, 2007. Nominations received after that date will not be considered. Voting by the
entire OCCDLA membership will commence in November 2007 and ballots must be returned no later than
December 1, 2007. Ballots received after that date will not be counted. The winner will be announced
at the OCCDLA Annual Christmas Party in December.
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Vol. 78 — No. 28 — 10/13/2007
Court of Civil Appeals Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement
IN THE SUPREME COURT OF THE STATE
OF OKLAHOMA
Wednesday, September 26, 2007
The following cases are assigned to the
Court of Civil Appeals Oklahoma City, Divisions 1 and 3. The judges serving in the Oklahoma City Divisions are Carol M. Hansen,
Glenn D. Adams, Larry E. Joplin, Kenneth L.
Buettner, E. Bay Mitchell, III and Robert Dick
Bell. The judges sit in three-judge panels which
rotate periodically, but all assigned cases will
be decided by three of the above named judges. Any party may seek disqualification of any
judge pursuant to Okla.Sup.Ct.R. 1.175, 12
O.S.2001, Ch. 15, App. 1 and 20 O.S. 2001 §§
30.3, 1401 and 1402.
103,218Bowden et al v. Zummer.
103,755Edmundson et al v. City of Tulsa et
al.
103,790Chute v. Board of Review for the OK
Employment Security Commission et
al.
103,965Coble v. Shepherd.
be filed with the Clerk of the Supreme Court
who serves ex officio as the clerk of the Court
of Civil Appeals room B-2, State Capitol, Oklahoma City, Oklahoma, 73105.
DONE BY ORDER OF THE SUPREME
COURT this 26th day of September, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
The following cases are assigned to the
Court of Civil Appeals Tulsa, Divisions 2 and
4. The judges serving in the Tulsa Divisions are
John F. Reif, Keith Rapp, Jerry L. Goodman,
Jane P. Wiseman, Doug Gabbard, II and John F.
Fischer. The judges sit in three-judge panels
which rotate periodically, but all assigned
cases will be decided by three of the above
named judges. Any party may seek disqualification of any judge pursuant to Okla.Sup.Ct.R.
1.175, 12 O.S. 2001, Ch. 15, App. 1 and 20 O.S.
2001 §§ 30.3, 1401 and 1402.
103,841Garrett v. Garrett.
104,017Holder v. Holder.
103,843Lewis v. City Clerk, City of Oklahoma
City et al.
104,049Golden v. Thompson.
103,855Kelley v. Toraby.
104,125Hinderman v. Hinderman.
104,089State of Oklahoma v. Chavez et al.
104,224Camp et al v. Hamm et al.
104,264Browning v. Browning.
104,095Bank of Nichols Hills v. Bank of Oklahoma.
104,768Rose Operating Co. v. Silkwood et al.
104,104Laurie Mickle-Bell v. James M. Bell.
104,798Bud Johnson Body Shop v. Donley
Family Trust et al.
104,133Smith v. State of Oklahoma, Oklahoma Insurance Dept.
104,985Deutsche Bank National Trust Co. v.
Daniel et al.
104,173Coley v. Coley.
105,017National American Ins. Co. v. Vallion.
104,899GEICO v. Sims et al.
The proceedings are to be governed by Oklahoma Supreme Court Rules, Part V, Appeals
Assigned to Court of Civil Appeals. 12 O.S.
2001 Ch. 15, App. 1. Until the Court of Civil
Appeals has made its final disposition, all
motions, petitions and other paperwork shall
Vol. 78 — No. 28 — 10/13/2007
104,791City of Tulsa v. Carr et al.
105,015TIP Properties v. Harrison et al.
105,032Wilshire Ins Co. v. Davis et al.
The proceedings are to be governed by Oklahoma Supreme Court Rules, Part V, Appeals
Assigned to Court of Civil Appeals. 12 O.S.
2635
2001 Ch. 15, App. 1. Until the Court of Civil
Appeals has made its final disposition, all
motions, petitions and other paperwork shall
be filed with the Clerk of the Supreme Court
who serves ex officio as the clerk of the Court
of Civil Appeals room B-2, State Capitol, Oklahoma City, Oklahoma, 73105.
DONE BY ORDER OF THE SUPREME
COURT this 26th day of September, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
2007 OK CIV APP 93
STATE ex rel. DEPARTMENT OF PUBLIC
SAFETY, Petitioner/Appellee, v. THIRTY
FOUR THOUSAND, FOUR HUNDRED
EIGHTY-SIX DOLLARS ($34,486.00) IN US
CURRENCY, Respondent, and RAY
MITCHELL NORRIS, Appellant.
No. 103,203. April 13, 2007
APPEAL FROM THE DISTRICT COURT
OF TULSA COUNTY, OKLAHOMA
HONORABLE RONALD L. SHAFFER,
JUDGE
AFFIRMED
Douglas R. Young, STATE OF OKLAHOMA,
ex rel. DEPARTMENT OF PUBLIC SAFETY,
Oklahoma City, Oklahoma, for Petitioner/
Appellee,
Ray Mitchell Norris, pro se, Cushing, Oklahoma, for Appellant.
Opinion by Kenneth L. Buettner, Judge:
¶1 The State of Oklahoma through the
Department of Public Safety (DPS) filed a
Notice of Seizure and Intended Forfeiture October 19, 2005 with respect to $34,486 seized in
Tulsa County during an alleged violation of the
Uniform Controlled Dangerous Substances
Act, 63 O.S.2001 §2-101 et seq. The Notice specifically stated that Ray Mitchell Norris and
Shawn Jeremy Friedman concealed and transported marijuana with intent to distribute, had
currency constituting drug proceeds, and that
the currency was in close proximity to the controlled dangerous substances which was used
or intended to be used to facilitate a violation
of the Act. Ray Mitchell Norris filed a “Limited
Response” to the Notice as an interested person November 3, 2005 in which he challenged
the jurisdiction of the court on the grounds of
2636
improper venue and lack of specificity of the
Notice. He also raised the affirmative defense
of the statute of limitations. However, he failed
to aver, and did not produce evidence of, an
ownership interest in the currency. Consequently, he does not have standing to challenge
the forfeiture action. We affirm the trial court’s
order of forfeiture of the currency.
¶2 The record does not reveal that any other
interested party appeared in this case, including Friedman.1 On March 22, 2006, Norris filed
a Motion requesting a Ruling on his November
3, 2005 Response without oral argument. There
is a five-page affidavit by the trooper who
made the initial stop, filed December 12, 2005.
It does not establish that either Norris or Friedman had a proprietary interest in the currency.2
Norris did not himself put forth any evidence,
or statement under oath, claiming ownership
of the currency.3
¶3 “In order to challenge a forfeiture, the
claimant must own the res.” United States of
America v. One 1981 Datsun 280ZX, 563 F.Supp.
470, 475. “Ownership can be evidenced in a
variety of ways. Courts generally look to indicia of dominion and control such as possession,
title and financial stake.” Id.
¶4 DPS first questions whether Norris has
standing to challenge the forfeiture. We agree
he did not. He neither alleged an ownership
interest in the currency nor produced evidence
in any manner of a proprietary interest. The
facts reveal that there was another person
involved in the drug stop and thus there is no
inference from the circumstances that Norris
was the owner of the money. Absent a claim of
ownership, or evidence submitted at the hearing from which an inference of ownership
could arise, the respondent has no standing to
challenge the forfeiture. AFFIRMED.
HANSEN, P.J., and BELL, J., concur.
1. DPS’s affidavit states that attempted service on Friedman at the
address given at the time of arrest went unclaimed and that a bench
warrant had been issued. Friedman was served by publication.
2. The most specific part of the trooper’s affidavit states: “As I
turned around and headed eastbound on I-44, I started to replay my
tape to hear what was said in the patrol unit as I searched the truck. I
came to the part of the video where the driver [Norris] and his passenger [Friedman] were talking about how I had overlooked the
money concealed within the truck and other Marijuana I had
missed.”
3. Title 65 O.S. 2001 §2-506 (D): Within forty-five days after the
mailing or publication of the notice, the owner of the property and any
other party in interest or claimant may file a verified answer and claim
to the property described in the notice of seizure and of the intended
forfeiture proceeding.
Vol. 78 — No. 28 — 10/13/2007
2007 OK CIV APP 94
CHRISTOPHER STEHM, Plaintiff/
Appellant, v. THE NORDAM GROUP, INC.,
Defendant/Appellee.
Case No. 104,000. May 18, 2007
APPEAL FROM THE DISTRICT COURT
OF TULSA COUNTY, OKLAHOMA
HONORABLE MICHAEL J. GASSETT,
JUDGE
REVERSED AND REMANDED
Charles C. Vaught, ARMSTRONG & LOWE,
P.C., Tulsa, Oklahoma, for Plaintiff/Appellant,
Stephen L. Andrew, Renee Williams, D. Kevin
Ikenberry, ANDREW, WILLIAMS & IKENBERRY,
Tulsa, Oklahoma, for Defendant/Appellee.
OPINION BY ROBERT DICK BELL, JUDGE:
¶1 Plaintiff/Appellant, Christopher Stehm, a
former employee of Defendant/ Appellee, The
Nordam Group, an aerospace company
(Employer), brought this action against
Employer for fraudulent misrepresentation
and concealment of client information during
the hiring/recruiting process.1 The trial court
sustained Employer’s motion for summary
judgment finding no genuine issues of material
fact existed and therefore, Employer was entitled to judgment as a matter of law. We reverse
and remand for further proceedings.
¶2 Appellant was employed by Gardner
Denver. In the summer of 2002, Employer’s
upper management began recruiting Appellant to become controller of Employer’s Interior & Structures Division (Division). During the
recruitment process, Appellant was interviewed by Richard Armstrong, the Vice President of the Division. Appellant testified that
when he asked Armstrong about Employer’s
financial stability and future in the airline
industry, Armstrong assured him the Division
was financially secure due in part to the substantial revenue generated under a contract
with Gulf Stream aircraft. Under this contract,
the Division built cabinets for Gulf Stream’s
G200 luxury private jet aircraft. Appellant testified he relied upon these assurances to terminate his existing employment and accept
Employer’s employment offer.
¶3 Within a few days after beginning his new
employment, Appellant learned Gulf Stream
had previously terminated its contract with
Vol. 78 — No. 28 — 10/13/2007
Employer. He also learned Armstrong was
aware of this information during the recruitment process. Appellant remained employed
for eight months until he was terminated by
Employer on March 20, 2003.
¶4 In 2004, Appellant filed the instant tort
action against Employer. Employer denied any
wrongdoing and affirmatively claimed Appellant failed to mitigate damages and waived his
fraud claim. After the completion of discovery,
Employer sought summary judgment. Employer’s motion alleged it was entitled to judgment
as a matter of law because (1) Appellant failed
to produce evidence that he was fraudulently
induced to accept employment with Employer;
(2) Oklahoma law does not impose a duty
upon an employer to disclose sensitive client
information to a prospective employee; (3)
Appellant had no expectation of continued
employment because he was an at-will employee; (4) Appellant failed to produce evidence of
harm or damages; and (5) Appellant waived
his right to pursue this action by remaining
employed for eight months after discovery of
the alleged fraud.
¶5 In response, Appellant attached evidentiary materials revealing disputed issues of
material fact concerning each of the elements
of actual fraud and fraudulent concealment.
He also cited various authorities in support of
his assertion that Employer had the duty to
disclose to its potential employee the known
information that a key contractual relationship
affecting the prospective employee’s job had
been terminated and Employer’s non-disclosure of that material information was a breach
of that duty. With respect to Employer’s affirmative defenses, Appellant attached case law
supporting his claim that continued employment after discovery of the fraud did not constitute waiver of fraud because he performed
his duties without seeking additional consideration. Appellant further alleged his continued
performance mitigated his damages.
¶6 Without discussing any reasons therefore,
the trial court sustained Employer’s motion for
summary judgment. Appellant appeals from
that order. This matter stands submitted without appellate briefs on the trial court record.
See Rule 13, Rules for District Courts, 12 O.S.
Supp. 2002, Ch. 2, App. 1, and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp. 2003,
Ch. 15, App.
2637
¶7 This Court’s standard of review of a trial
court’s grant of summary judgment is de novo.
Hoyt v. Paul R. Miller, M.D., Inc., 1996 OK 80,
¶2, 921 P.2d 350, 351-52. Summary judgment is
proper when the evidentiary materials “establish that there is no genuine issue as to any
material fact, and that the moving party is
entitled to judgment as a matter of law.” Shelley
v. Kiwash Elec. Co-op., Inc., 1996 OK 44, ¶15, 914
P.2d 669, 674. When this Court reviews the trial
court’s grant of summary judgment, all inferences and conclusions drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Id.
When the evidence in the present case is
viewed under this standard, we find genuine
issues of material fact preclude summary
judgment in Employer’s favor.
¶8 Appellant first contends the trial court
erred in determining that Oklahoma Law does
not recognize an at-will employee’s right to
bring an action against an employer for fraudulent concealment and/or misrepresentation
during the hiring process. Neither party cited
nor did independent research uncover Oklahoma case law specifically recognizing the
instant cause of action. However, other states
have recognized this cause of action. See Berger
v. Security Pacific Information Systems, Inc., 795
P.2d 1380 (Colo. App. 1990); Redies v. Nationwide Mut. Ins. Co., 711 F.Supp. 570, 572 (D.
Colo.1989)(“This Court concludes that plaintiff’s claims for fraud, false representation,
non-disclosure or concealment, and negligent
misrepresentation may be maintained based
on representations regarding future conditions
of employment.”); Meade v. Cedarapids, Inc., 164
F.3d 1218 (9th Cir. 1999)(Under Oregon law, an
employee’s at-will status did not defeat the
employee’s claim that the employer misrepresented its financial situation and future growth
to induce the employee to work for employer.)
Wildes v. Pens Unlimited Co., 389 A.2d 837 (Me.
1978); Stewart v. Jackson & Nash, 976 F.2d 86
(2nd Cir. 1992)(recognizing a claim under New
York law for fraudulent inducement in hiring);
Palmer v. Beverly Enters., 823 F.2d 1105, 1113 (7th
Cir.1987); Lazar v. Superior Court, 12 Cal.4th 631,
909 P.2d 981 (Cal.1996)(holding a claim for
fraudulent inducement to accept employment
was actionable where the employer’s misrepresentations were made prior to hiring, when
the employer lacked coercive power over the
prospective employee and the prospective
employee was free to decline the offered
position.)
2638
¶9 Generally, these cases recognized a tort
claim against an employer for misrepresentations made to induce acceptance of employment by focusing on the employees’ circumstances preceding the at-will employment relationships and the inducements and decisions
leading to employment. See also Richard P.
Perna, Deceitful Employers: Common Law
Fraud as a Mechanism to Remedy Intentional
Employer Misrepresentation in Hiring, 41
Willamette L. Rev. 233 (2005).
¶10 Berger recognized an action brought by a
terminated employee against the former
employer for fraudulent concealment of a substantial known risk that a project for which the
employee was being hired would be discontinued in the near future. Berger held the employer had a duty to disclose to the prospective
employee facts that “in equity or good conscience should be disclosed.” Berger, 795 P.2d at
1383, quoting Eckley v. Colorado Real Estate
Comm’n, 752 P.2d 68 (Colo.1988).
¶11 Although not in the employment context, the Oklahoma Supreme Court recognized
a similar duty in Varn v. Maloney, 1973 OK 133,
516 P.2d 1328. There it held “It is equally well
settled that the concealment of material facts
which one is bound under the circumstances to
disclose, may constitute fraud.” Id. at ¶18, 516
P.2d at 1332 (citation omitted).
A duty to speak may arise from partial disclosure, the speaker being under a duty to
say nothing or to tell the whole truth. One
conveying a false impression by the disclosure of some facts and the concealment of
others is guilty of fraud, even though his
statement is true as far as it goes, since such
concealment is in effect a false representation that what is disclosed is the whole
truth.
Id. quoting Deardorf v. Rosenbusch, 1949 OK 117,
206 P.2d 996.
¶12 We adopt Berger’s reasoning and holding
and extend the duty to an Oklahoma employer
to assure the information disclosed to a prospective employee during the pre-hiring/
recruitment process is not false or misleading.
This duty is not vitiated by Appellant’s at-will
employment status because Appellant did not
challenge his termination from employment.
Instead, Appellant alleged he was induced to
leave his secure job with Gardner Denver by
Employer’s misrepresentation during hiring.
“An employer’s right to terminate an at-will
Vol. 78 — No. 28 — 10/13/2007
employee without cause does not protect the
employer from liability for fraud in inducing
the employee to accept employment.” Berger,
795 P.2d at 1384.
¶13 Appellant next challenges the trial court’s
determination to sustain the motion for summary judgment on the basis that he was unable
to prove any elements of his fraud claim. In
Oklahoma, the elements of actionable fraud are
(1) the defendant made a material representation that was false, (2) he knew when he made
the representation that it was false, (3) he made
it with the intention that it should be acted
upon by plaintiff, and (4) plaintiff acted in reliance upon it and thereby suffered detriment.
Silk v. Phillips Petroleum Co., 1988 OK 93, ¶12,
760 P.2d 174, 176-77. Fraud is a question of fact
to be determined by a jury upon the presentation of evidence of each element of fraud. Id. at
¶13, 760 P.2d at 177.
¶14 In order to state an action for fraudulent
misrepresentation and/or concealment in hiring, we hold the plaintiff must show (1) the
employer misrepresented or concealed a material fact during the hiring process, (2) the
employer had knowledge of the falsity of the
fact or lacked reasonable grounds for believing
it to be true, (3) the employer intended to
induce the employee’s reliance, (4) the employee justifiably relied upon the misrepresentation, and (5) damages resulted. Berger, 795 P.2d
at 1385.
¶15 As to the first three elements, the deposition testimony and other documentary evidence in the record clearly raise questions of
fact as to whether Employer’s upper management intended and did indeed induce Appellant to accept employment with Employer by
falsely representing the existence of a key contractual relationship with Gulf Stream. We recognize Armstrong testified in his deposition
that he informed Appellant of the loss of the
Gulf Stream contract. However, another manager involved in the hiring process readily
admitted he failed to mention the loss of this
contract to Appellant. This evidence clearly
raises a dispute as to whether a misrepresentation or concealment of fact indeed occurred
and where such evidence is conflicting, the
existence or nonexistence of such fraud is a
question of fact for the jury. Tice v. Tice, 1983
OK 108, 672 P.2d 1168.
¶16 The elements of materiality and justifiable reliance also are met by Appellant’s eviVol. 78 — No. 28 — 10/13/2007
dence. Appellant produced evidence that the
existence of this key contractual relationship
with Gulf Stream (which actually did not exist)
was material to his decision to leave his existing employment to take the job with Employer.
We recognize Employer disputed whether the
non-disclosure of this client information was
material to Appellant’s decision to accept
Employer’s offer of employment and whether
Appellant justifiably relied upon such misrepresentation/concealment. However, the existence of this dispute did not warrant the entry
of a judgment in Employer’s favor as a matter
of law. Instead, such disputed issues raised
questions of fact for a jury.
¶17 As to the final element of damages,
Appellant produced evidence that as a result of
the alleged fraud, he sustained a set-back in his
career, incurred financial losses and had difficulty securing another job due to the short
length of employment at Employer. This evidence sufficiently raised genuine issues of
material fact which precluded summary judgment in favor of Employer.
¶18 In the trial court proceeding, Employer
claimed Appellant affirmatively waived his
right to assert his fraud claim because he
remained employed for approximately eight
months after he learned of the fraudulent misrepresentation/concealment. For his third
proposition, Appellant challenges Employer’s
waiver defense. This challenge has merit. There
appears no evidence in this record that Appellant affirmatively ratified his continued
employment under new terms or subject to
additional benefits after discovering the alleged
fraud. Instead, the record shows Appellant
simply performed his employment obligations
under the terms originally negotiated and
agreed upon prior to his discovery of the
alleged fraud. See Steiger v. Commerce Acceptance of Okla. City, Inc., 1969 OK 78, 455 P.2d 81.
Consequently, we do not agree Appellant
waived his fraud claim as a matter of law.
¶19 Because we find Employer owed a duty
to Appellant under the facts of this case and
there was evidence that Appellant was induced
to commence employment in reliance upon
Employer’s specific assurance about the existence of a key contractual relationship — which
actually did not exist — we hold the trial court
erred in granting summary judgment to
Employer. The trial court’s order sustaining
Employer’s motion for summary judgment is
accordingly reversed and this case is remanded
2639
for further proceedings. Because we reverse
the trial court’s judgment in favor of Employer,
it is unnecessary to address Appellant’s fourth
and fifth propositions of error.
¶20 REVERSED AND REMANDED.
HANSEN, P.J., concurs, and BUETTNER, J.,
concurs in result.
1. Appellant also stated a claim for promissory estoppel which he
dismissed with prejudice.
2007 OK CIV APP 95
ANGELA NIDER, Plaintiff/Appellant, v.
REPUBLIC PARKING, INC., Defendant/
Appellee.
Case No. 103,441. October 10, 2007
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE VICKI L. ROBERTSON, TRIAL
JUDGE
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS
Stacy S. Bateman, John A. Alberts, ABEL,
MUSSER, SOKOLOSKY, MARES & KOURI,
Oklahoma City, Oklahoma, for Plaintiff/Appellant,
Shawn E. Arnold, LAW OFFICES OF ANN
FRIES, Oklahoma City, Oklahoma, for Defendant/Appellee.
OPINION BY JOHN F. FISCHER, JUDGE:
¶1 Plaintiff Angela Nider appeals from the
Trial Court’s grant of summary judgment in
favor of parking garage operator Defendant
Republic Parking, Inc. in her premises liability
action. The appeal has been assigned to the
accelerated docket pursuant to Oklahoma
Supreme Court Rule 1.36, 12 O.S. Supp. 2004,
ch. 15, app. 1. Based on our review of the
record on appeal and applicable law, we reverse
and remand for further proceedings.
FACTS AND PROCEDURAL
BACKGROUND
¶2 On the morning of December 4, 2003,
Nider fell as she was walking down the ramp
of a downtown Oklahoma City parking garage
operated by Defendant Republic Parking, Inc.
At the time of her fall, Nider was on her way to
work.
¶3 Nider filed this action against Republic
seeking damages for injuries she sustained as a
2640
result of her fall. Nider alleged in her petition
that she was an invitee on Republic’s premises
and had been proceeding slowly and carefully
down the ramp before her fall. She further
alleged that Republic was negligent in failing
to keep and maintain the ramp in a safe and
proper condition.1 Republic denied that Nider
was an invitee and asserted as affirmative
defenses: (1) contributory negligence, (2)
open and obvious condition, and (3) lack of
proximate cause.
¶4 In its summary judgment motion, Republic argued that the condition of the ramp was
open and obvious and that, because the garage
had been built more than ten years earlier,
Nider’s action was barred by the limitation
period set forth in 12 O.S.2001 § 109. The Trial
Court granted Republic’s motion for summary
judgment without a hearing. Okla. Dist. Ct. R.
13(f), 12 O.S. Supp. 2005, ch. 2, app. 1 (“A court
may decide a motion for either a summary
judgment or a summary disposition without a
hearing, and where this is done, the court shall
notify the parties of its ruling by mail.”). Nider
filed a combined “Motion for New Hearing”
and “Motion to Reconsider” pursuant to 12
O.S.2001 §§ 653 and 990.2.2 The Trial Court
denied the motions on May 10, 2006. Nider
timely appeals.
STANDARD OF REVIEW
¶5 This Court reviews a trial court’s denial of
a motion for new trial for abuse of discretion.
Evers v. FSF Overlake Assocs., 2003 OK 53, ¶6, 77
P.3d 581, 584. Where the correctness of a trial
court’s exercise of discretion in denying a party’s motion for new trial rests on the propriety
of the grant of summary judgment, “the abuseof-discretion question is settled by our de novo
review of the summary adjudication’s correctness.” Reeds v. Walker, 2006 OK 43, ¶9, 157 P.3d
100, 106-07.
¶6 Review of a trial court’s order granting
summary judgment requires this Court to
examine the pleadings and evidentiary materials submitted by the parties to determine
whether one party is entitled to judgment as a
matter of law because there are no disputed
material factual questions. Carmichael v. Beller,
1996 OK 48, ¶2, 914 P.2d 1051, 1053. On de novo
review, this Court exercises its independent
judgment as to the legal effect of the undisputed facts disclosed by the summary judgment record. Id. We have “an affirmative duty”
to test the evidentiary material tendered to the
Vol. 78 — No. 28 — 10/13/2007
Trial Court for its legal sufficiency to support
the relief sought by the moving party. Copeland
v. The Lodge Enters., Inc., 2000 OK 36, ¶8, 4 P.3d
695, 699. If the moving party has not addressed
all material facts, or if one or more of such facts
is not supported by acceptable evidentiary
material, summary judgment is not proper.
Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP
45, 743 P.2d 682 (approved for publication by
the Oklahoma Supreme Court).3
and mutual advantage. Brown v. Nicholson,
1997 OK 32, ¶7, 935 P.2d 319, 321. Republic
thus owed Nider “a duty of ‘reasonable care,’ ”
and because she was “a business visitor [she
was] entitled to that care which would make
the premises safe for [her] reception.” Id., 935
P.2d at 322 (footnote omitted).
DISCUSSION
¶10 In Proposition I of its motion for summary judgment Republic argued that it did not
have any duty to Nider regarding the condition that caused her injury. Republic correctly
observed that it had neither a duty to keep its
premises “accident-free” nor a duty to protect
Nider from “open and obvious” dangers.
Nonetheless, Nider’s negligence claim requires
us to examine the nature and extent of
Republic’s duty to her as an invitee.
¶7 In its motion for summary judgment,
Republic asserted two grounds. First, Republic
argued that it owed no duty to Nider because
the injury-causing hazard was open and obvious. Absent a duty, Republic was entitled to
prevail on Nider’s negligence claim. Second,
Republic argued that because Nider’s theory of
recovery was based on design defects in the
construction of the ramp and handrail, it was
barred by 12 O.S.2001 § 109. In response, Nider
argued that she was an invitee and that Republic had a duty to maintain the ramp and walkway in a safe and proper condition, which it
breached causing her injuries. Because we find
that Republic is not entitled to summary judgment, we first discuss the issue of Nider’s
status.
I. Nider’s Entry Status On the Property
¶8 “Entrants onto real property fall into three
categories: trespasser, licensee and invitee.”
Pickens v. Tulsa Metro. Ministry, 1997 OK 152,
¶9, 951 P.2d 1079, 1083. Nider contends that
she was an invitee, while Republic argues that
she was a licensee. “The determination of entry
status is critical in a premises liability case
because the duty of care the property owner
[or occupier] must exercise expands or contracts based on the entrant’s status.” Id. at ¶10,
951 P.2d at 1083.
¶9 In order to assign Nider licensee status, as
urged by Republic, the record must show that
Nider was on the premises for her own benefit,
for purposes in which Republic had no business,
commercial or other interest. Foster v. Harding,
1967 OK 46, ¶18, 426 P.2d 355, 360. The record
does not support Republic’s contention. Nider
had entered into a month-to-month contract
with Republic to use its parking garage, pursuant to which Republic required her to pay a $25
monthly fee. These undisputed facts require
assigning invitee status to Nider. An invitee is
one who possesses an invitation to be upon the
premises, for the purpose of a common interest
Vol. 78 — No. 28 — 10/13/2007
II. Whether Republic Demonstrated
Entitlement To Judgment As a Matter of Law
A. Republic’s Duty of Care
¶11 The law applicable in this case is clear
and well settled. As the owner of the garage,
Republic had a duty of “reasonable care” to
make the premises safe for Nider’s reception.
Brown, 1997 OK 32 at ¶7, 935 P.2d at 321 (citing
Rogers v. Hennessee, 1979 OK 138, ¶3, 602 P.2d
1033, 1034, and Jack Healey Linen Serv. Co. v.
Travis, 1967 OK 213, ¶5, 434 P.2d 924, 926). As
to invitees like Nider, Republic was required
“to use ordinary care to keep [the] premises in
a reasonably safe condition.” See Oklahoma
Uniform Jury Instructions-Civil (OUJI-CIV)
No. 11.10.4 The Oklahoma Supreme Court has
described the nature of that duty as follows:
The cases denying liability of the [owner]
all disclose the presence of a physical fact
or circumstance not occasioned by, or within the possible control of the storekeeper or
owner of the premises. . . . Those cases
wherein liability has been held to attach
recognize the presence of some physical
fact or circumstance occasioned by an act
or omission of the storekeeper which,
although obvious and not dangerous within itself, forms an integral part of an eventuality out of which injury arose.
J.J. Newberry Co. v. Lancaster, 1964 OK 21, ¶22,
391 P.2d 224, 228 (affirming judgment on jury
verdict entered for plaintiff injured when she
tripped over stool in aisle in defendant’s store
and holding that, although not an insurer of
plaintiff’s safety, defendant owed plaintiff/
invitee duty of maintaining portion of premises
2641
used by her in reasonably safe condition and
duty to warn of any dangerous conditions arising in areas used, because plaintiff had the
right to assume that it was safe to walk in those
areas).
¶12 The photograph that Republic attached
to its motion for summary judgment provided
a reasonably detailed view of the ramp’s condition and was relevant to Republic’s common
law duty of reasonable care.5 The photograph
showed a handrail along the side of the ramp
adjacent to the wall of the garage. The handrail
did not extend along the ramp’s full length.
Instead, the handrail ended at the building
wall approximately three feet from the bottom
of the ramp and the adjoining sidewalk. At the
end of the handrail, the slope of the ramp
increased significantly. On the portion of the
parking garage ramp adjacent to the handrail,
some strips of non-skid material had been
intermittently placed. The strips were approximately two to three feet wide and extended
from the handrail toward the center of the
garage. The words “watch your step” appeared
to have been painted on a large section of the
non-skid material extending from the end of
the handrail up the ramp into the garage. The
words were somewhat faded and placed on the
non-skid material so as to be read by a person
walking up the ramp into the garage. A
rectangular piece of the non-skid material was
missing from the outside middle of this large
section.
¶13 It appears from the discoloration of the
ramp surface that, either during construction
of the ramp or at some later point, a smaller
strip of non-skid material, approximately the
same width and one-half the length of the
larger strip, had been installed between the
larger section of non-skid material and the end
of the ramp. So much of this strip was worn
away, however, that less than one fourth of it
remained attached to the ramp surface. Also, it
appears from the discoloration of the ramp
surface that another strip, of the same width
and approximately one-half the length of the
previous strip, had at one time been attached to
the ramp surface. None of the non-skid material remained in this location. This area of discoloration was between the previous strip and
the street-exit end of the ramp. It appears that
at one time these three areas of non-skid material were placed approximately four to six
inches apart.
2642
¶14 Republic asserted that because Nider
testified that nothing obstructed her view and
that she could have seen the condition of the
ramp had she looked, the hazardous condition
of the ramp was open and obvious to a person
using reasonable caution. Nider responded
that she had not noticed the condition of the
ramp and relied heavily on Brown, wherein the
Oklahoma Supreme Court reversed summary
judgment in favor of the parking garage
owners.
¶15 The striking similarities between the
facts of this case and Brown warrant a detailed
discussion.6 The plaintiff in Brown slipped and
fell while walking down a steep parking garage
ramp. She alleged that the owners of the ramp
were negligent in their maintenance of the
ramp. “Weather-stripping devices” had been
placed on the ramp, but they were partially
worn away. When the plaintiff fell, she was
standing on “ ’what was remaining’ of the
weather strips.” Brown, 1997 OK 32 at ¶4, 935
P.2d at 321. The Court concluded that this
record precluded summary judgment because:
[It cannot be determined with certainty]
whether Brown’s fall, while standing on
the remnants of the strips, was caused by a
hidden snare due to the strips’ disintegrated form, or whether some other existing
defect or danger contributed to her fall.
This uncertainty makes summary judgment inappropriate. Whether the defect
was open and obvious or whether, as
Brown was approaching the locus in quo,
the offending condition had a deceptively
innocent appearance presents a question
for the jury.
Id. at ¶12, 935 P.2d at 323.
¶16 Particularly relevant to this discussion is
the Court’s observation in Brown that the placement of the weather stripping might have
resulted from precautions taken by the owner
to make safe an “inherently dangerous” condition. Because of the slope of its ramp, particularly where it approached the sidewalk, Republic may have attempted to discharge its duty of
reasonable care to make the garage safe for its
invitees by installing the handrail and placing
the non-skid material on the ramp surface. The
degree of the slope of the ramp does not appear
in the record. However, Nider testified that
when she slipped on the ramp, the fall “put
[her] out on the sidewalk.” 7 The material facts
offered in support of Republic’s motion do not
Vol. 78 — No. 28 — 10/13/2007
establish, as a matter of law, that such measures were reasonable and, therefore, that
Republic discharged its original duty of reasonable care.
¶17 What is clear from this record is that,
even if those initial measures were sufficient,
Republic failed to maintain the non-skid material in the continuing discharge of that duty.
Nider’s petition alleges that Republic was negligent because it breached its duty to “maintain
the ramp and walkway in a safe manner.” Not
only did Republic have the initial duty to take
reasonable measures to make its garage safe for
invitees, but also the continuing duty to maintain the garage in that condition. Gorton v.
Mashburn, 1999 OK 100, ¶6, 995 P.2d 1114, 1116
(making a “statement of the obvious” that
“[m]aintenance is not the same as nor synonymous with design and construction,” but is
“best characterized as after-care or upkeep.”).
See also OUJI-CIV No. 11.10 (“It is the duty of
the [owner/occupant] to use ordinary care to
keep [his/her/its] premises in a reasonably
safe condition . . . .”).
¶18 Republic’s assistant manager stated in
his affidavit that the ramp and handrail were
constructed at the time the garage was built,
more than ten years before Nider’s accident,
and that “no construction, alteration or
improvement [had] been done either to the
handrail or the ramp within ten years preceding [the accident].” Because the affidavit does
not speak directly to the non-skid material, two
interpretations are possible. The first is that the
non-skid material was installed at the time the
garage was built and not altered, improved or
maintained in the intervening ten plus years.
The second is that the affidavit provides no
information regarding the non-skid material.
¶19 It is clear with either interpretation that,
regardless of when placed, Republic allowed
the non-skid material to deteriorate. Republic
did not dispute the fact that the non-skid material was in a state of disrepair. The condition of
the ramp supports Nider’s claim of negligent
maintenance. Whether that condition was the
proximate cause of Nider’s injury is a different
matter, but Republic did not argue that issue in
its summary judgment motion. Rather,
Republic argued that, although hazardous, the
condition of the ramp was known to Nider.
B. Republic’s Open and Obvious Defense
¶20 Republic sought to avoid liability in this
case by claiming that the condition that caused
Vol. 78 — No. 28 — 10/13/2007
Nider’s injury did not result from any failure
on its part but was an “open and obvious” condition as to which it owed Nider no legal duty.
The focus of this argument was that Nider had
used the garage and ramp for approximately
eight months before her fall, the condition of
the garage was known to Nider, and she made
a personal choice to use the ramp rather than
the stairs.
¶21 As Republic correctly observed, it had no
duty to protect invitees from any dangerous
condition that was open, obvious and readily
observable under ordinary circumstances. See
OUJI-CIV No. 11.12. However, Republic’s reliance on Nider’s previous experience with the
garage does not resolve the matter. “A property
owner may be liable for an injury to an invitee
caused by a dangerous condition that the invitee was aware of, if the property owner had
reason to know that the dangerous condition
would cause harm to an invitee despite the
invitee’s knowledge.” Id. This proposition is
derived from Jack Healey, 1967 OK 213 at ¶9,
434 P.2d at 927, and the Restatement (Second)
of Torts § 343A cmt. f (1965).
¶22 The Court in Jack Healey upheld a jury
verdict for a plaintiff who slipped and fell in a
soapy pool of water, despite the fact that the
fall occurred at her place of employment where,
as she was well aware, water regularly stood in
pools at this location on the floor. On the day of
the accident, however, the water covered such
a large area that she could not walk around it
and the lighting was such that she could not
see the water until she stepped into it.8
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.
Id. at ¶9, 434 P.2d at 927.
¶23 Similarly, the Restatement notes that a
property owner may be liable for known and
obvious dangers in circumstances where:
[T]he invitee’s attention may be distracted,
so that he will not discover what is obvious, or will forget what he has discovered,
or fail to protect himself. . . . [or] where the
[owner] has reason to expect that the invitee will proceed to encounter the known or
2643
obvious danger because to a reasonable
man in his position the advantages of
doing so would outweigh the apparent
risk.
Restatement (Second) Torts § 343A cmt. f (1965).
Two observations from these materials are relevant to this case.
¶24 First, Republic could reasonably expect
that invitees would enter and exit the garage
by way of the ramp. Republic acknowledged
that the ramp was one of only two means of
ingress and egress it provided for its garage
patrons. Furthermore, Nider was within the
scope of Republic’s invitation to invitees. She
was not walking down the middle of the ramp,
but, as Republic directed her, on the handrail
side of the ramp where the non-skid material
had been placed. Those precautions, however,
did not absolve Republic of liability. “Where an
invitee had been negligently misled into a reasonable belief that a passageway or door is an
appropriate means of ingress or egress, he is
entitled to the protection due his status while
using such passageway or door.” Jack Healey,
1967 OK 213 at ¶11, 434 P.2d at 928.
¶25 Second, any number of factors in this
case, such as the proximity of the sidewalk and
the garage’s street entrance to the location of
Nider’s fall, invite the distraction from the hazard which is of concern in Jack Healey and the
Restatement. See also Roper v. Mercy Health Ctr.,
1995 OK 82, 903 P.2d 314 (where plaintiff
tripped over a small light fixture installed in
the sidewalk, finding her claim that she was
distracted by nearby pedestrian traffic created
an issue for determination by the jury); Spirgis,
1987 OK CIV APP 45 at ¶¶11-12, 743 P.2d at 685
(holding that whether property owner was
liable for plaintiff’s injury resulting from stepping into a pothole in the parking lot due to
distraction by traffic was to be decided by the
trier of fact).
¶26 Republic’s undisputed facts Nos. 11 and
219 establish that Nider did not notice the condition of the ramp prior to her fall. Republic’s
questioning of Nider during her deposition
does not determine why this occurred. More
importantly, that questioning does not preclude an inference that she was distracted from
the ramp’s condition by some reasonable cause.
“Her familiarity with the condition of the ramp
is not fatal to her recovery, and whether her
foreknowledge should have prevented the
harm is to be measured by a reasonable and
2644
objective standard.” Brown, 1997 OK 32 at ¶11,
935 P.2d at 322. The fact that a particular condition is “observable” does not, in and of itself,
require that the condition be declared an open
and obvious danger as a matter of law. Zagal v.
Truckstops Corp. of Am., 1997 OK 75, ¶9, 948 P.2d
273, 275. “All of the circumstances must be
considered to determine whether a particular
condition is open and obvious to the plaintiff
or not.” Id. (citing Brown, 1997 OK 32 at ¶8, 935
P.2d at 322). Republic’s own motion established
that facts essential to its “open and obvious”
defense either remained in dispute or entitled
Nider to an inference that precluded summary
judgment. Consequently, Republic failed to
establish as a matter of law that it owed Nider
no duty regarding the condition of the ramp.
¶27 The dissent argues that at the heart of
this case we must determine what was “hidden” about the condition of the ramp. On summary judgment, that question becomes relevant
only after the property owner first establishes
that it has discharged its initial duty to make
and keep the premises safe for its invitees, or
establishes that it had no duty regarding the
condition that caused the injury. For the reasons previously discussed, we find, on the
basis of this record, that Republic has done
neither.
¶28 Nonetheless, while property owners
have a duty to keep their premises in a “reasonably safe condition,” they also have a duty
to either “remove or warn the invitee of any
hidden danger.” OUJI-CIV No. 11.10 10 Republic did not argue that the cause of Nider’s
injury was a hidden defect about which it provided adequate warnings.11 Republic’s argument was that Nider’s injury did not result
from any breach of either duty described in
OUJI-CIV No. 11.10, because it had no duty to
her regarding what it contended was an open
and obvious hazard. While it was not Nider’s
burden on summary judgment to defeat each
element of Republic’s defense, she was entitled
to prevail if she could show disputed facts
regarding one element critical to Republic’s
defense. Hadnot v. Shaw, 1992 OK 21, n.25, 826
P.2d 978, 985. Further, she was entitled to rely
on the evidentiary materials submitted by
Republic to do so. See Okla. Sup. Ct. R. 13(b).12
¶29 The condition of the ramp was apparent
from the photograph submitted by Republic.
And while the evidence regarding the manner
in which Nider’s fall occurred is sparse at best,
what can be discerned from this record is that,
Vol. 78 — No. 28 — 10/13/2007
when Nider was walking down the ramp
along the path where the non-skid material
had originally been placed, she slipped and
fell, landing outside of the garage and on the
sidewalk when the new shoes she was wearing
“touched the cement.” These facts permit more
than one reasonable inference: (1) Nider fell
because another piece of the non-skid material
came loose under her foot; (2) she slipped on
an area of the concrete where the non-skid
material had worn away; or (3) she slipped on
a part of the ramp where non-skid material had
never been placed. The first inference describes
a hidden defect, and the second and third
describe observable conditions, which may or
may not be “open and obvious” depending on
the determination of the Jack Healey and Restatement issues previously discussed.
¶30 The evidence in this record is insufficient
to substantiate or eliminate any of these possible inferences. Nonetheless, for purposes of
summary judgment, Nider was entitled to the
inference that defeated summary judgment.
C. Assumption Of The Risk
¶31 Although Republic’s motion for summary judgment purported to be confined to its
“open and obvious” defense, it emphasized
that Nider’s use of the ramp was voluntary
and that she had a safer alternative to walking
down the ramp — it was her “personal choice”
not to take the covered stairway. Republic
argued that Nider was wearing new leather
“dress shoes” with two-inch heels at the time
of her fall.13 Republic also argued: “[W]here the
condition of the garage was open and observable by the plaintiff” and she “admits that she
would park there in the face of any danger,
she cannot later claim fault when she has an
unfortunate step.”
¶32 To the extent that Republic made this
argument in support of the contributory negligence defense asserted in its answer, Republic
argued that Nider’s own negligence or assumption of risk, in combination with its negligence,
caused her injury. This argument is entirely
inconsistent with Republic’s claim of no duty.
Where there is no duty, there can be no liability.
Flanders v. Crane Co., 1984 OK 88, ¶12, 693 P.2d
602, 606. In any event, where there is conflicting evidence regarding a defendant’s “open
and obvious” defense, these issues cannot be
resolved on summary judgment. Okla. Const.
art. 23, § 6 (providing that “[t]he defense of
contributory negligence or of assumption of
Vol. 78 — No. 28 — 10/13/2007
the risk shall, in all cases whatsoever, be a
question of fact, and shall, at all times, be left to
the jury.”). See also Byford v. Town of Asher, 1994
OK 46, n.28, 874 P.2d 45, 55 n.28 (Opala, J.,
concurring)(defense that plaintiff should have
used an alternate route, alleged to be safer,
“presents no more than an element of contributory negligence”); Henryetta Constr. Co. v. Harris, 1965 OK 88, ¶4, 408 P.2d 522, 531, (supplemental opinion on reh’g)(noting that plaintiff’s
familiarity with the physical condition that
causes injury neither conclusively bars his
right of recovery nor makes him guilty of
contributory negligence).
III. Applicability of Section 109
¶33 Section 109 14 is a statute of repose, which
“restricts potential liability by limiting the time
during which a cause of action can arise.”
Smedsrud, 2002 OK 87 at n.35, 61 P.3d at 897,
n.35. It is undisputed that the ramp and handrail were designed and constructed more than
ten years before Nider’s injury. As Republic
interpreted Nider’s petition in light of her
deposition testimony,15 her only complaints
about the ramp and handrail related to their
“construction.” Republic argued, therefore,
that Nider’s claim for alleged defects in the
construction or design of the ramp and handrail were barred by section 109. Republic, however, misinterpreted Nider’s claim.
¶34 In her petition, Nider clearly alleged that
she was an invitee on Republic’s premises and
fell as a result of Republic’s failure to keep and
maintain the ramp in a safe and proper condition. In her response to Republic’s summary
judgment motion, Nider specifically asserted
that she “fell because of worn protective coating” and specifically disavowed any claim
based on defects in the design or construction
of the ramp and handrail. This Court finds that
Nider did not allege a claim for negligent
design or construction of the ramp. Rather, she
alleged that Republic failed to exercise reasonable care to maintain the premises in a safe
condition. Republic’s section 109 argument,
therefore, did not establish that a trial of
Nider’s claim was unnecessary.
CONCLUSION
¶35 The evidentiary materials of record
establish that, in this action based on premises
liability, Nider’s status was that of an invitee.
Therefore, Republic had a duty of reasonable
care to make and maintain its premises safe for
her use. Brown, 1997 OK 32 at ¶7, 935 P.2d at
2645
322. Material facts are in dispute regarding
whether Republic breached this duty, as they
are in dispute with respect to whether the condition of the ramp was an open and obvious
hazard. The Trial Court, therefore, erred in
granting summary judgment to Republic. Consequently, the Trial Court abused its discretion
in denying Nider’s motion for new trial.
Accordingly, we reverse the order granting
summary judgment and remand the case for
further proceedings consistent with the pronouncements herein.
¶36 REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
GOODMAN, J., concurs, and WISEMAN, P.J.,
concurs in part, dissents in part.
1. In her deposition, Nider testified that the basis of her claim was
the lack of protective coating and that the protective coating and hand
rail did not extend all the way to the bottom of the ramp.
2. In the body of the document, Nider specifically identified her
motion as one for new trial.
3. In its reply brief in the lower court, under the heading “Plaintiff’s failure under Rule 13,” Republic pointed out shortcomings in
Nider’s response brief and claimed that it was entitled to summary
judgment due to her failure to provide “a concise statement of material facts as to which a genuine issue exists.” We note that: “Even when
no counterstatement has been filed, it is still incumbent upon the trial
court to insure that the motion is meritorious.” Spirgis, 1987 OK CIV
APP 45at ¶10, 743 P.2d at 685.
4. The Oklahoma Uniform Jury Instructions should be used in the
trial of a case unless the court determines that they do not accurately
state the law. 12 O.S.2001 § 577.2.
5. One of Republic’s undisputed facts was that the photograph
depicted the conditions as they existed on the day of the accident.
6. Unlike this case, the Court in Brown found the record insufficient
to determine on summary judgment whether Brown was a licensee or
invitee: “Neither Brown’s status as an entrant on owners’ property nor
the nature of the hazard, if any she encountered on the ramp’s incline,
can be settled as a matter of law based on the record before us.” Brown,
1997 OK 32 at ¶9, 935 P.2d at 322.
7. Nider does not argue that the design of the ramp was defective
because of the severity of the ramp slope. That argument would invoke
the statute of repose asserted by Republic as a defense in Proposition
II of its motion. A plaintiff may maintain an action for “premises liability” independent of a design defect claim where the injury results from
an integral part of the structure. Smedsrud v. Powell, 2002 OK 87, 61 P.3d
891 (reversing summary judgment against a plaintiff who claimed to
have been injured by a wooden awning because the trial court failed to
recognize the plaintiff’s negligence claim was not based on a defective
design theory); Abbott v. Wells, 2000 OK 75, 11 P.3d 1247 (reversing
summary judgment against a plaintiff who was injured when she
entered a bathroom that had a raised floor on the defendant’s property,
because the plaintiff’s claim was based on common law negligence for
failure to warn rather than a design defect).
8. Republic has established from Nider’s deposition testimony that
lighting is not an issue in this case.
9. Republic’s undisputed fact No. 11 provides: “Nothing prevented
plaintiff from seeing the condition of the ramp or friction surface each
day for eight months prior to the accident, she just didn’t notice.”
Undisputed fact No. 21 provides: “When she came down the ramp
each day for eight months, she didn’t see the missing or deteriorating
skid surface but just never noticed it.”
10. “A hidden danger is a dangerous condition that the invitee
[licensee] does not actually know about and would not be expected to
observe in the exercise of ordinary care.” OUJI-CIV No. 11.11.
11. In all of its submissions to the Trial Court, Republic neither
referred to nor mentioned the “watch your step” sign painted on its
non-skid material. Republic’s only discussion of this issue was in its
response to Nider’s motion for new trial, wherein Republic claimed
that Nider did not provide any evidence of “a lack of sufficient warnings or even a deceptively dangerous condition.”
2646
12. As Republic noted, Nider’s response did not comply with Rule
13. The consequence was that Republic’s statement of undisputed facts
was admitted. We are, nonetheless, required to search the record,
including Republic’s submissions, in conducting our de novo review.
Spirgis, 1987 OK CIV APP 45at ¶9, 743 P.2d at 684.
13. In her deposition, Nider stated that she could “guarantee” that
the boots were not made of leather because she “didn’t pay that much
money for them,” and while the boots were new, she had worn them
home from the store before wearing them the day of her fall.
14. Section 109 provides that no action in tort to recover damages
for injury to the person arising out of “any deficiency in the design,
planning, supervision or observation of construction or construction of
an improvement to real property . . . shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning or supervision or observation of construction or construction of such an improvement more than
ten (10) years after substantial completion of such an improvement.”
15. See supra, note 1.
WISEMAN, P.J., concurring in part, dissenting in part:
¶1 I concur with the majority in Parts I and
III of the analysis but am unable to concur in
Part II on the issue of the nature of the ramp’s
condition, i.e., Republic’s “open and obvious”
argument.
if
¶2 I agree that Oklahoma case law holds that
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.
Jack Healey Linen Serv. Co. v. Travis, 1967 OK
213, ¶9, 434 P.2d 924, 928.
The majority also cites another parking ramp
case, Brown v. Nicholson, 1997 OK 32, 935 P.2d
319, for the proposition that plaintiff’s familiarity with the condition of the ramp is not fatal to
her recovery. However, in Brown, as the
Supreme Court opinion points out, the record
was conflicting on when the weather strips in
question were placed on the ramp — Brown
said shortly before her fall, and the owners said
possibly two years before her fall. Reasonable
minds, under this conflicting evidence, could
draw different inferences and conclusions as to
whether this weather stripping addition was of
recent vintage and whether it created a “deceptively innocent appearance” which may not
have been familiar to Brown.
¶3 The Jack Healey case also presented a
change in conditions familiar to the plaintiff.
She knew the area in question was always
damp and sometimes covered with water, but
Vol. 78 — No. 28 — 10/13/2007
she had always been able to pass around it
without having to walk through it. But on the
morning she fell, “the ‘whole area’ was covered by water and she could not ‘walk around’
it” and could not “readily perceive that the
water was so deep that the soap in it would
cover the soles of her shoes.” Jack Healey, 1967
OK 213 at ¶7, 434 P.2d at 927. The Supreme
Court stated:
This case is distinguishable from Beatty v.
Dixon, . . . 408 P.2d 339. The evidence there
failed to show that the defect, known to the
plaintiff, may have had a deceptively innocent appearance or that the risk of injury
from it had increased because of a sudden
or unanticipated change.
Id. at ¶10, 434 P.2d at 928.
¶4 A review of the undisputed facts, and it
should be noted that Nider does not dispute
any of the facts set forth by Republic that are
material to the issue of the ramp’s condition,1
shows that Nider had traversed this ramp
twice a day to and from work for 8 months
before she fell and that the condition of the
ramp was unchanged this entire time. Her
complaint is that the protective coating on the
ramp was worn and that the coating and handrail did not extend the full length of the ramp.
She stated in her deposition that nothing prevented her from seeing the condition of the
protective coating every day for eight months
before this incident. Nider has never claimed
that this was a known danger from which
Republic failed to protect her; she has always
claimed that she failed to notice or appreciate
the danger this ramp presented. I would ask
the majority to respond to the question at the
heart of this controversy: What was hidden (i.
e., not known or familiar) to this plaintiff about
the condition of the ramp and handrail?2 Put
another way, under the specific circumstances
of this case, what is the particular risk from the
observable lack of protective coating that is
incapable of appreciation? See id. at ¶9, 434 P.2d
at 927-28.
¶5 I find the facts in this case aligned more
closely with Beatty and Jackson v. Land, 1964 OK
102, 391 P.2d 904, than with Brown or Jack
Healey. This condition had existed and been
used for many months; there is nothing “deceptively innocent” about it, nor has the risk of
injury been increased by some new or unanticipated change in the condition.3
Vol. 78 — No. 28 — 10/13/2007
¶6 If the majority is correct that the ramp and
handrail could be considered a hidden danger
to Nider under the circumstances presented,
then it should address more substantively the
issue of the effect of the warning painted on the
ramp shown in the photograph Republic submitted with its motion.4 Although Nider recites
without reference to any evidentiary material
that “[t]here were no signs warning patrons to
‘watch your step’ on or near the ramp,” it is
plain from the photo that “Watch Your Step” is
painted clearly on the ramp on the protective
surface. If one accepts the majority’s conclusion that the condition of the ramp’s coating
could be considered a hidden danger, then
Republic’s duty is either to correct the dangerous condition hidden from persons in Nider’s
position or to warn them of its existence. OUJICIV No. 11.10. The warning on the ramp
appears to satisfy Republic’s duty to Nider and
should be addressed.
¶7 For these reasons, I concur with Parts I
and III of the majority’s analysis and conclusions and dissent from Part II. The trial court’s
judgment should be affirmed.
1. Nider did not comply with the Rule 13 requirement of separately stating and numbering each specific material fact claimed to be
in controversy or the requirement of making reference to the pages,
paragraphs, or lines of the evidentiary materials supporting or establishing that fact. The only facts in Nider’s response to Republic’s
motion which are supported by references to attached evidentiary
materials relate to Nider’s reasons for choosing her parking location
and for taking the ramp rather than the stairs.
2. There can be no question that the handrail’s condition of not
extending the full length of the ramp is open and observable, nor can
there be any question that the trial court was correct to remove this
issue from jury consideration. The trial court’s decision on this issue
should be affirmed.
3. The only new condition present was the pair of new, non-leather
boots which Nider was wearing for the first time that day.
4. That this photograph depicts the location’s condition on the day
of the incident is undisputed by Nider.
2007 OK CIV APP 96
BRENDA KATHLEEN DEISE, Petitioner, v.
MASTERCUTS/REGIS CORP., THE
HARTFORD INSURANCE CO. OF THE
MIDWEST, and THE WORKERS’
COMPENSATION COURT, Respondents.
No. 104,306. June 28, 2007
PROCEEDING TO REVIEW AN ORDER OF
A THREE-JUDGEPANEL OF THE WORKERS’
COMPENSATION COURT
SUSTAINED
Laura Beth Murphy, MURPHY & MURPHY
ATTORNEYS, Oklahoma City, Oklahoma, for
Petitioner,
2647
Brian E. McMahan, McCLURE LAW OFFICE,
Oklahoma City, Oklahoma, for Respondents
Mastercuts/Regis Corp. and The Hartford
Insurance Co. of the Midwest.
duties prior to her injury, . . . .” The panel
found Deise’s injury was not compensable pursuant to Harris v. LaQuinta, 1997 OK 50, 937
P.2d 89.
¶5 In this review proceeding, Deise claims
that the facts are undisputed and that the panel
erred as a matter of law in finding that she was
not on either a special mission or that she was
driving her car as a job requirement at the time
of the injury. Deise claims that either circumstance requires a finding of compensability.
Employer claims Deise’s testimony was contradictory and that the panel’s finding is supported by competent evidence. Employer
asserts Deise’s trip to the bank was a routine
job assignment and that it therefore did not
qualify as a special mission. Employer argues
that after making the deposit, Deise’s job duties
had ended and she was making her way home
at the time of the injury. Employer argues
therefore that Deise’s claim is not compensable
according to the going and coming rule.
¶1 Petitioner Brenda Kathleen Deise seeks
review of an Order of a three-judge panel of the
Workers’ Compensation Court which vacated
the trial court’s finding that Deise’s claimed
injury was compensable. Deise sought compensation for injuries resulting from an automobile accident which occurred after she made
a bank deposit for Respondent Mastercuts/
Regis Corp. (Employer). The parties disputed
whether Deise was on a special mission at the
time of the injury. The panel’s Order is supported by competent evidence and we sustain.
¶2 Deise filed her Form 3 February 17, 2006,
in which she claimed a single incident accidental injury, occurring October 6, 2005, to the
right leg and foot and consequential depression, arising out of and in the course of her
employment. Employer filed its Form 10, May
22, 2006, in which it denied Deise’s injury arose
out of and in the course of employment.
¶3 Trial was held August 14, 2006, and the
trial court issued its Order Awarding (TTD)
Benefits August 16, 2006. The trial court found
Deise sustained an accidental injury to the
right hand, right leg, right foot (below the knee
amputation) with consequential psychological
overlay arising out of and in the course of
employment. The trial court denied Deise’s
claim for a consequential injury to the back.
The trial court expressly found that Deise was
on a special mission for Employer at the time
of the accident, and that Deise’s “work activities constitute the major cause of her resulting
injuries.” The trial court awarded TTD, medical treatment, and prosthesis. The trial court
reserved for future hearing the award of PPD
and the determination of any deficiency due
from Employer following settlement of Deise’s
third-party claim.
¶4 Employer appealed the trial court’s Order
to a three-judge panel, claiming that the finding that Deise was on a special mission was
against the clear weight of the evidence and
was contrary to law. Employer asserted that at
the time of her injury, Deise had left her
employment and was on a personal mission.
The panel vacated the trial court’s Order, finding that Deise was “not on a special mission,
but rather was performing her regular job
2648
¶6 Deise was the only witness at trial. Deise
testified that she worked for Employer as a
hairdresser at Employer’s Shawnee Mall location. She had been employed there just under a
year at the time of the injury. Deise explained
the job duty that led her to make a bank deposit before this injury:
We took turns on the schedule to come in
two days a week and leave late two days a
week, closing the shop.1 Two people would
count the drawer and the money and make
sure everything matched for the night,
make the bank deposit.
And whoever did the counting of the
money left the bag with the other person,
and two people followed each other to the
bank and made the drop.
Deise explained that she was paid for her time
involved in going to the bank. She explained
that on the days she made the deposit she was
paid for 15 minutes beyond the time she
clocked out.
¶7 Deise testified that Employer’s door at
Shawnee Mall is located a quarter-mile east of
the intersection of I-40 and Harrison. Deise
lives in Seminole, and she explained that her
normal route home from work is to get on I-40
at Harrison, next to the mall, and go east to
Highway 3 where she turns south towards
Seminole. Employer directed employees making the bank deposit to go south on Harrison
Vol. 78 — No. 28 — 10/13/2007
from the mall to the Arvest Bank without making any stops. Deise testified Employer requires
two drivers to make sure the deposit is safely
made. Both drivers are paid for the extra 15
minutes.
¶8 Deise testified that on October 6, 2005 she
was scheduled to close and make the deposit.
She counted the money and he co-worker carried the money to the bank. “My job was to
follow her to the bank until the bank deposit
was made and then go our separate ways.”
Deise followed her co-worker to the bank and
after they dropped the deposit, Deise testified
that she did not return north on Harrison to I40. Instead, she proceeded south on Harrison
with the intent to purchase gasoline and then
meet Highway 3 at a point further south. After
leaving the bank, Deise traveled south on Harrison for about a quarter of a mile when a
pickup drove out of a sports bar parking lot
and hit Deise’s car head on. The accident
resulted in the loss of Deise’s leg; she also suffered a broken left toe, a broken right hand,
and seven fractured ribs. Deise testified the
prosthetic leg has caused her to walk differently, which led to back problems. Deise
testified she also lost her home, car, and job.
¶9 Deise testified she was on Harrison at the
time of the accident at Employer’s direction.
She asserted that if she had been allowed to
stop to get gas before going to the bank, she
would have purchased gas at a station next to
the mall and would not have gone south on
Harrison from the bank to get gas, and at the
time of the accident she would have been driving on I-40 towards home. Deise testified that
according to the accident report, the collision
occurred at 9:23 and that she therefore was still
on the clock for work.
¶10 On cross-examination, Deise explained
that the two employees do not exit their cars at
the bank. The one carrying the deposit drops
the money into the night deposit box. Deise
agreed that once the money is dropped at the
bank, the two co-workers are free to go in any
direction they want. Deise agreed that on the
day of the accident, she clocked in at 1:35 p.m.
and clocked out at 9:14 p.m.2 Deise agreed the
bank deposit was the “last job-related duty
you’ve go to do.” Deise testified that normally
if it was her day to make the deposit, she
would leave the bank and go north on Harrison to get back to I-40 for her trip home. On the
day of the accident, she went south on Harrison because she needed to get gas for her car.
Vol. 78 — No. 28 — 10/13/2007
Deise also agreed there is a gas station between
the bank and I-40 that is closer to the bank than
the gas station she was driving to at the time of
the accident.
¶11 We will affirm the panel’s decision if it is
supported by any competent evidence. Owings
v. Pool Well Service, 1992 OK 159, ¶1, 843 P.2d
380; Parks v. Norman Mun. Hosp., 1984 OK 53,
¶2, 684 P.2d 548. The applicability of the special
task exception is ordinarily a question of fact;
however, where the facts necessary to establish
the special task exception are undisputed, a
question of law is presented. Lucas v. Triad
Drilling Company, 1998 OK 98, 969 P.2d 363.
Deise asserts the facts are undisputed and that
therefore the issue is one of law — whether the
undisputed facts here show a compensable
injury. Employer asserts that inconsistencies in
Deise’s testimony show factual discrepancies
so that we must review the record for competent evidence. We find different inferences may
be drawn from Deise’s testimony. “Only where
there is no conflict in the evidence, and no
opposite inferences may be drawn from undisputed proof, is it proper to treat such matters as
questions of law . . . . Whenever conflicting/
inconsistent inferences may be drawn from
undisputed facts, the issue is one of fact, not
one of law.” Barnhill v. Smithway Motor Express,
1999 OK 82, 991 P.2d 527, 529-530.
¶12 In her appellate brief in chief, Deise
argues that the undisputed evidence shows she
was on a special mission. Employer counters
that Deise’s trip to the bank did not qualify as
a special mission. In her reply brief, Deise
asserts that she was driving at Employer’s
direction at the time she was injured and that
the injury is compensable whether it’s characterized as a special mission, a normal job duty,
or a dual mission.
¶13 It is without question that typically injuries incurred while going to or coming from
work are not compensable. Lucas, supra, at ¶11.
However, that rule “does not apply where the
employee sustains an accidental injury while
going to or returning from his place of work to
perform a special task outside of his regular
hours at the request of his employer and for the
employer’s benefit.” Id., citing Thurston Chemical Company v. Casteel, 1955 OK 104, 285 P.2d
403. Oklahoma decisions have found several
exceptions to the going and coming rule: 1)
where the employer has agreed, as an incident
to employment, to furnish transportation to
and from work; 2) where an employee is
2649
charged with a work-connected duty or task
while traveling to and from work, R.J. Allison,
Inc., v. Boling, 1943 OK 43, 134 P.2d 980, 192
Okl. 213; 3) where ingress and egress to premises has been constructed by the employer, or is
the only means provided, Swanson v. General
Paint Co., 1961 OK 70, 361 P.2d 842; and 4)
where the work creates necessity for travel.
Chas. H. Sanford, Inc. v. Gregory, 1956 OK 293,
303 P.2d 1112.3
¶14 In reasoning that Deise was not on a special mission, Employer has focused on cases
showing a special mission to include some
sense of urgency. Employer argues that because
the trip to the bank was a once or twice weekly
part of Deise’s job duties, that there was nothing special about the bank deposit trip. However, Impson v. Dillard’s Brown-Dunkin Company,
1971 OK 93, 489 P.2d 483, shows that urgency is
not a necessary component of a special task. In
that case, all of the department store’s employees were expected to work on “inventory Sundays” twice a year. The employees’ normal
workdays were Monday through Saturday, but
twice a year they were expected to come to
work on a Sunday to conduct inventory. The
claimant was injured in a car wreck on her way
to the store on an inventory Sunday. In finding
the injury compensable, the Oklahoma Supreme
Court held:
Claimant at the time she was injured was
on her way to perform a special task for
respondent. She was to assist in making an
inventory of respondent’s store, which was
done twice each year. Claimant was a
saleslady and the taking of an inventory
was a special task outside of her regular
duties. The special task was to be performed on Sunday outside of her regular
hours of employment as a saleslady during
week days.
Id. at ¶12. In Harris v. La Quinta Lumberman’s
Mutual Insurance, 1997 OK 50, 937 P.2d 89, the
Oklahoma Supreme Court cited Impson but still
found that some urgency was required to show
a special task or mission.
¶15 The Harris decision noted another element to a finding of a special task: a special
task is one in which an employee is asked to do
work different from his ordinary work duties.
Deise argues that because she was employed as
a hairdresser, the making of a bank deposit was
different from her ordinary duties. However,
Deise’s testimony revealed that she had been
2650
making the bank deposit once or twice a week
since she began working for Employer. The
once or twice weekly bank deposit was a
regular duty in this case.
¶16 Employer relies also on Schell v. Blue Bell,
Inc., 1981 OK CIV APP 73, 637 P.2d 914, which
includes the following instructive analysis:
Whether decedent’s particular activities in
the context of this case are encompassed
within the special errand or special task
exception to the going and coming rule
likewise presents a question of fact for the
trial judge. Northwestern Steel and Wire Co.
v. Industrial Commission, 38 Ill.2d 441, 232
N.E.2d 293 (1967); California Cas. Indemnity
Exch. v. Industrial Acc. Com’n., 21 Cal.2d
751, 135 P.2d 158 (1943). Merely going to
work outside his regular hours does not
bring the employee within the special task
exception. Janger Produce Company v. Lee,
304 P.2d 285 (Okl. 1956).
In 1 Larson, Workmen’s Compensation, §16.10, the special errand or special
task rule was stated as follows:
“When an employee, having identifiable time and space limits on his
employment, makes an off-premises
journey which would normally not be
covered under the usual going and
coming rule, the journey may be
brought within the course of employment by the fact that the trouble and
time of making the journey, or the special inconvenience, hazard, or urgency
of making it in the particular circumstances, is itself sufficiently substantial
to be viewed as an integral part of the
service itself.”
In determining whether the special
task exception is applicable, courts consider certain factors, including the nature of
the task, errand, or service and the nature
of the journey. 1 Larson, Workmen’s Compensation, §§6.10-16.12.
The nature of the errand or task is
important. Was it really a special task or
merely a normal incident of the job that the
employee was hired to perform? In considering the nature of the journey the court
will consider the regularity or usualness of
the journey and the onerousness of the
journey — the length traveled, the suddenness or urgency of the request, the inconve-
Vol. 78 — No. 28 — 10/13/2007
nience, and the hazards incident thereto.
Did the trip involve a special or extraordinary trip not normally incident to the
employment?
***
It was a question of fact for the trial
judge whether decedent’s activities were
sufficient to bring him within the special
task exception to the going and coming
rule. . . .
¶17 Deise distinguishes Schell because in that
case, the claimant was not directed by his
employer to drive outside of the workplace. In
Schell, the claimant simply worked an extra
day that he normally would be off of work, and
he was fatally injured in a collision on his way
home.
¶18 The New Mexico Supreme Court has
cited the following passage from Larson:
I Larson, Workmen’s Compensation Law,
253, 266-68, 275, states that the basic principle or premise underlying the ‘exceptions’ to the going and coming rule and the
clue to their proper limits is found in the
principle that the injury is compensable
only where the journey is an inherent part
of the service for which the employee is
compensated or where the travel itself is a
substantial part of the service performed.
Rinehart v. Mossman-Gladden, Inc., 77 N.M. 470,
423 P.2d 991, 992 (N.M. 1967). In Hughes v. Haco
Drilling Co., 1959 OK 52, 340 P.2d 472, the
employee was killed in a traffic accident while
driving his own car to work, but while carrying a water container furnished by the employer and while following specific direction from
the employer to take the water container to the
job site. The Oklahoma Supreme Court found
that the death was compensable as an exception to the going and coming rule because the
employee was acting at the direction of the
employer at the time of the injury.
¶19 The Oklahoma Supreme Court has noted
two key factors in such cases: “when did the
accident occur in relation to claimant’s workschedule and was the claimant doing something at the time of the accident at the direction
of the employer or in furtherance of employer’s
business . . . and what benefit, if any, employer
received by” the trip. Barnhill, supra, at ¶19.
¶20 In this case, competent evidence supports the finding that at the time of Deise’s
Vol. 78 — No. 28 — 10/13/2007
injury, her work duties were finished and as
she testified, she and her co-worker were free
“to go (their) separate ways.” If Deise had been
injured during her drive from Employer’s
premises to the bank, the injury would have
been compensable because she was then doing
Employer’s business. But, Employer’s control
over Deise’s travel ended at the time she left
the bank parking lot. Competent evidence supports the finding that at the time of the injury,
Deise was going home from work, after concluding her duties for Employer, and the injury
was therefore not compensable.
¶21 Deise argues that under the exceptions to
the going and coming rule, a claimant is covered until she arrives home. However, under
that reasoning, Deise could have taken a side
trip to Dallas and still claimed to be covered.
In support of this claim, Deise relies on the
following language:
An exception to the aforesaid general rule
is found in cases where it is shown that the
employee, although not at his regular place
of employment, even before or after customary working hours, is doing, is on his
way home after performing, or on the way
from his home to perform, some special
service or errand or the discharge of some
duty incidental to the nature of his employment in the interest of, or under direction
of, his employer. In such cases, an injury
arising enroute from the home to the place
where the work is performed, or from the
place of performance of the work to the
home, is considered as arising out of and in
the course of the employment.
Anderson Const. Co. v. Franklin, 1957 OK 196,
315 P.2d 785, quoting Bocock v. State Board of
Education, 55 Idaho 18, 37 P.2d 232, 234 (1934).
However, in Anderson, and other cases where
an injury on the way home has been found
compensable, the employee was called from
home to report to work on an emergency basis.
In that circumstance, the employee can claim to
be on the roadway expressly due to the employer’s request. In this case, Deise was not called
out from home specially. Instead, after Deise
finished her routine weekly trip to the bank,
her job duties ended and she was free to travel
in any direction.
¶22 Deise testified she was on her way to
purchase gasoline at the time of the accident.
That was a personal mission or errand undertaken after she had finished her work duties.
2651
Although Deise claims that her trip to get gasoline was required because Employer’s directions did not allow her to stop for gas between
the mall and the bank, the evidence was that
the trip to the bank took at most 15 minutes.
Deise does not claim the trip to the bank caused
her to expend a great deal of gasoline. Employer is not liable for an injury received during a
personal mission simply because Deise arrived
at work with a low tank of gas that day.
¶23 Here the trial court found Deise was on
a special mission at the time of the injury. Deise
argues in her Reply Brief that she was at the
place of the accident because of Employer’s
direction, whether her trip is labeled a special
mission or a dual purpose trip. Several cases
have linked these exceptions to the going and
coming rule. Because we sustain the panel’s
Order, we do not determine whether dual purpose is a claim sufficiently distinct from special
mission that Deise could not raise it for the first
time in her Reply Brief. We note the following
test for dual purpose trips has been adopted in
Oklahoma: “if the work of the employee created the necessity for travel, he is in the course of
his employment, though he is serving at the
same time some purpose of his own. . . . If,
however, the work has no part in creating the
necessity for travel, if the journey would have
gone forward though the business errand had
been dropped, and would have been canceled
upon failure of the private purpose, though the
business errand remained undone, the travel is
then personal, and personal the risk.” Pepco,
Inc. v. Ferguson, 734 P.2d 1321, 1987 OK CIV
APP 15, citing In the matter of Marks v. Gray, 251
N.Y. 90, 167 N.E. 181, 182 (N.Y.1929). In this
case, Deise’s work created the necessity for
travel to the bank. Deise’s trip to purchase
gasoline on her way home from work would
have occurred whether her work day ended at
the mall or at the bank. Competent evidence
supports the finding that Deise’s work-required
travel had ended when she left the bank and
was free to go wherever she chose. Competent
evidence therefore supports the panel’s Order
that Deise’s injury was not compensable.
SUSTAINED.
HANSEN, P.J., and BELL, J., concur.
1. Deise later testified that she made the bank deposit “approximately once a week.”
2. Employer asked Deise if the extra time was “already figured in”
and she said yes. It is unclear from Deise’s cross-examination testimony if she actually clocked out at 8:59 or whether she actually
clocked out at 9:14. On re-direct, Deise clarified that she actually
2652
clocked out at 9:14 and the secondary time slip would have paid her
for 15 minutes after that, to 9:29.
3. 99 C.J.S. Workers’ Compensation §431 provides, in part:
Exceptions to the general rule that injuries sustained while traveling to and from work are not compensable under the workers’
compensation act have been variously grouped to include situations where an employer provides the means of transportation or
pays travel time; where the employee performs duties during the
commute; where the way is inherently dangerous; where the
place of the occurrence of the injury is in such close proximity to
the workplace that it is brought within the scope of employment,
and where the injury occurs while the employee is on a special
errand for the employer.
Another formulation of the exceptions to the general rule
includes the following exceptions: where transportation is furnished by the employer to benefit the employer; where the
employer requires the employee to use a vehicle as an instrumentality of the business; where the employee is injured while
upon a special errand or special mission for the employer; where
ingress and egress at the place of employment are inherently
dangerous; and where the employee combined pleasure and
business on trip, and business part predominated.
(Footnotes omitted).
2007 OK CIV APP 97
IN THE MATTER OF S.A., S.T., J.T., and J.T.,
Deprived Children. STATE OF
OKLAHOMA, Petitioner/Appellee, v. JOE
TAMBUNGA and LORI TAMBUNGA,
Respondents/Appellants.
No. 104,333. September 7, 2007
APPEAL FROM THE DISTRICT COURT OF
GARFIELD COUNTY, OKLAHOMA
HONORABLE TOM NEWBY, TRIAL JUDGE
AFFIRMED
Shera D. Shirley, Enid, Oklahoma, for Appellants,
Stephanie Hampton, ASSISTANT DISTRICT
ATTORNEY, Enid, Oklahoma, for Appellee,
Russell N. Singleton, Enid, Oklahoma, for
Deprived Children.
¶1 Respondents/Appellants Joe Tambunga
(Father) and Lori Tambunga (Mother) (collectively Parents) appeal from a jury verdict terminating their parental rights to S.A., S.T., J.T.,
and J.T. (Children). The jury found Parents’
rights should be terminated under 10 O.S.2001
§7006-1.1(A)(5) because Parents failed to correct the conditions leading to the deprived
adjudication, and under 10 O.S.2001 §70061.1(A)(15) because Children had been in foster
care for fifteen of the most recent twenty-two
months. The jury also found termination was
in Children’s best interests. Clear and convincing evidence supports the jury’s verdicts and
we affirm.
Vol. 78 — No. 28 — 10/13/2007
¶2 Petitioner/Appellee State of Oklahoma
(State) filed its Petition seeking to have Children adjudicated deprived June 30, 2004. State
alleged Children did not have proper parental
care and that the home was unfit due to neglect,
abuse, cruelty, or depravity.1 At that time, Children remained in Parents’ home.
¶3 State sought an emergency order to take
Children into custody August 18, 2004.2 Following a hearing, the trial court placed Children in State custody August 20, 2004. State
then filed an Amended Petition for deprived
adjudication August 24, 2004.3
¶4 After hearing on the deprived Petition,
held October 14, 2004, the trial court entered an
order on a standardized form entitled, “Adjudication Journal Entry.” The trial court placed
an “X” next to the printed words “The child(ren)
is/are DEPRIVED based on the following findings of fact: as per Petition:” and in the following blank space the trial court handwrote
“State has sustained a majority of allegations in
Petition.” 4 The transcript of the hearing on the
Petition for deprived adjudication shows the
trial court explained his findings on the allegations proved:
Court: . . . Well, let me just go through the
substantive allegations in Paragraph 3.5
The State has sustained its burden of
proof as to paragraph 3 A.
On 3 B, I don’t know if Family Life Day
Care is the same as Head Start, but in any
event, the substantive allegations of 3 B
have been sustained by the evidence, at
least as to the odor and the dirty condition
of the children.
I don’t think C has been proven.
D has been proved.
E has been proved.
F has been proved.
G has been proved.
I’m not sure what E means, so I’ll just
skip that one.
So the bottom line is the majority of the
substantive allegations of the State have
been proved overwhelmingly and that the
children do not have proper parental care.
I’m going to find that they are deprived
children.
Vol. 78 — No. 28 — 10/13/2007
Finally, the trial court found that making Children wards of the court was in Children’s best
interests. Parents did not appeal the deprived
adjudication, and the trial court’s findings in
that order are final.
¶5 The trial court entered a “Dispositional
Journal Entry” October 29, 2004. In that order,
the trial court checked the following language
“reasonable efforts have been made to return
the child(ren) to the home as follows: Parents
will work treatment plan.” The disposition
order indicated the permanency plan was
eventually to return Children to the home. The
trial court ordered the attached Individualized
Service Plans (ISP) as the treatment plans for
Parents. The ISPs listed the reasons for DHS
involvement6 and then provided,
Condition(s) which need to be corrected:
(Parents) need to correct the conditions
listed above. (Parents) will protect their
children from any physical or emotional
harm, making sure the children are not in
the presence of Domestic Violence.
Desired Result(s):
(Parents) will keep the children free from
harm and will not expose the children to
Domestic Violence. They will attend
Domestic Violence and Parenting classes.
They will attend individual and family
counseling. They will learn age appropriate parenting skills and be able to demonstrate these skills. They will maintain contact with the worker and notify the worker
of changes in living, counseling, therapy,
job, phone number and situation.
Mother’s and Father’s ISPs then listed 14 specific “to do” items directing them to take action
to correct the conditions. The ISPs included the
statutory warning that failure to provide a safe
home would result in termination of parental
rights. Mother and Father signed the plans.
¶6 On September 15, 2005, DHS returned the
two youngest Children to Parents’ home for a
trial reunification.7 In March or April 2006,
those two were removed again because the
home did not appear safe, the children were
filthy, domestic violence continued, and the
conditions had not improved.8 The record does
not indicate that the two oldest Children
returned to Parents’ care at any time during
these proceedings.
2653
¶7 State filed its Application for Termination
of Parental Rights September 11, 2006. State
alleged Parents had failed to correct the conditions which led to the deprived adjudication,
Children had been placed in foster care for fifteen out of the most recent twenty-two months
preceding the filing of the Application, and
that termination was in Childrens’ best
interests.
¶8 Jury trial was held January 17-18, 2007.
The jury entered 16 separate verdicts in favor
of termination: one for each parent and child
on failure to correct conditions, and one for
each parent and child on the ground of being in
foster care for 15 of the previous 22 months. In
each verdict form, the jury also found termination was in the child’s best interests.
¶9 The trial court entered its Order Terminating Parental Rights January 24, 2007. Parents
appeal. Appellate review of parental rights termination cases requires “. . . canvassing the
record on review to ascertain whether nisi
prius fact findings rest on clear-and convincing
proof. “ In the Matter of S.B.C, 2002 OK 83, ¶ 6,
64 P.3d 1080, 1081. “We will affirm the factfinder’s decision only where the record contains
evidence from which the jury could reasonably
have determined that the State satisfied its burden with clear and convincing evidence.” In the
Matter of C.J., 2005 OK CIV APP 66, ¶ 9, 121
P.3d 1119, 1121, citing In the Matter of C.R., 2003
OK CIV APP 14, 63 P.3d 573.
¶10 Termination of parental rights is governed by 10 O.S.2001 §7006-1.1.9 Parents contend the trial court failed to order specific conditions Parents had to correct in order to be
reunited with Children and that the termination order therefore violated their constitutional rights to due process. The Oklahoma
Supreme Court has recognized that the right of
a parent to the care, custody, companionship
and management of his or her child is a fundamental right protected by the federal and state
constitutions, requiring that the full panoply of
procedural safeguards be applied before a
parent may be deprived of that right.10
¶11 Parents assert the ISPs were insufficient
to advise them of the conditions to be corrected. Title 10 O.S.Supp.2006 §7003-5.3 outlines
the requirements for individualized service
plans. Parents argue the ISPs in this case failed
to comply with §7003-5.3(D)(2), (D)(3), (D)(6),
(D)(10), and (J).11 Parents admit the ISPs included a general description of the services to be
2654
provided to Parents, but they complain the
plans lacked the means by which the services
would be offered as well as a schedule of the
frequency of the services. Parents also complain the ISPs lacked performance criteria to
measure their progress. Parents complain the
ISPs failed to include documentation of steps
DHS was taking to place Children “in another
planned permanent living arrangement.” Parents next allege the plans do not include “clearly defined objections” or “outcome based performance criteria” so that “any termination
based on the ‘failure’ to complete the ISPs violates (Parents’) Due Process Rights.”
¶12 The individual treatment and service
plan, prescribed by 10 O.S.Supp.2006 §7003-5.3
and approved by the trial court, is the method
used to advise the parents of the standards of
conduct expected of them in order to correct
the conditions leading to the deprived adjudication. While failure to perform the service
plan is not of itself grounds to terminate parental rights, the parties use compliance or noncompliance with the plan as evidence showing
whether the conditions leading to the adjudication have been corrected. In Re J.M., 1993 OK
CIV APP 121, 858 P.2d 118, 120. We disagree
with Parents’ assertion that termination was
based on failure to complete the plan. The jury
found Parents failed to correct the conditions
leading to the deprived adjudication, as
required by statute before terminating parental
rights.
¶13 The record shows Parents received trial
court-approved individual treatment plans
which explained the conditions Parents were
charged with correcting in order to regain custody of Children. Additionally, at the hearing
on the deprived Petition, the trial court
announced to the parties in open court which
conditions led to the deprived adjudication.
Parents were therefore on notice of the conditions to be corrected. And, Parents failed to
challenge the deprived adjudication by appeal.
The facts presented by the record here do not
show a denial of due process in the notice
given Parents of the conditions which led to
the deprived adjudication and of the steps
required for Parents to show they had corrected those conditions. The clear and convincing
evidence shows Parents failed to correct those
conditions and the jury verdicts on that ground
are affirmed.
¶14 In their second assertion of error, Parents
claim there was insufficient evidence to sup-
Vol. 78 — No. 28 — 10/13/2007
port termination of parental rights under §70061.1(A)(15). That subsection allows termination
of parental rights where the child has been in
foster care for 15 of the most recent 22 months.
Parents concede Children were in foster care
for 15 of the 22 months preceding the Application for Termination of Parental Rights. Parents
assert they were not at fault for the length of
time Children remained in foster care. Parents
rely on two cases holding that where the State
has contributed to the parents’ failure to correct the conditions, termination based on length
of time in foster care is unwarranted. See Matter
of M.J. & J.J, 2000 OK CIV APP 75, 8 P.3d 936
and Matter of J. M., 1993 OK CIV APP 121, 858
P.2d 118.
¶15 Matter of M.J. & J.J. affirmed a jury’s decision to terminate parental rights on the basis of
length of time in foster care. There, the mother
complained that the statute allowing termination based on time in foster care unconstitutionally denied her right to present defenses,
such as the state contributing to the duration of
foster care. The court noted the mother had not
challenged the fact that her children had been
in foster care for more than 15 months, nor did
she argue the state had contributed to the
length of time the children were in foster care.
Instead, she contended §7001-1.1(A)(15) was
essentially a strict liability statute. The court
addressed the possible defenses in rejecting the
mother’s argument: “(t)hese include, but are
not limited to, adequacy of notice of either
commencement of proceedings, or the conditions in need of remediation, or the terms of the
service plan, or the consequences of failure to
correct the conditions leading to the deprived
adjudication.” Id. at ¶10. The court affirmed
based on the jury’s findings that the children
had been in foster care for 15 of the most recent
22 months and that termination of parental
rights was in the children’s best interests. The
court quoted an earlier finding on the rationale
behind §7006-1.1(A)(15):
where reasonable efforts to return the adjudicated deprived child(ren) to the parent(s)
have proved fruitless as to result in prolonged foster care placement of the
child(ren), the Legislature clearly viewed
extended placement in foster care, without
progress toward reunification of the family,
to be so detrimental to those children’s best
interests as to justify termination of parental rights. The Court of Civil Appeals has
recognized this provision as reasonably
Vol. 78 — No. 28 — 10/13/2007
related to valid state interests and not
unconstitutional per se. Matter of M.C. and
N.C., 1999 OK CIV APP 128, 993 P.2d 137.
Id. at ¶10.
¶16 Matter of J.M. is clearly distinguishable
and does not support Parents’ argument. J.M.
did not involve termination based on length of
time in foster care, but based on failure to correct conditions. There the father was denied
the plan-ordered treatment for sexual abuse
because he would not admit to sexual abuse.
The court found the plan unconstitutionally
required the father to incriminate himself to
follow the plan. Id. at ¶7. Additionally, one
counselor unilaterally terminated the parents’
therapy when the counselor stopped work at
the counseling center. The counselor did not
refer the parents to another counselor.
¶17 The Court of Civil Appeals found the
treatment plan was impermissibly modified or
abrogated by treatment providers rather than
the trial court. Id. at ¶10. The facts of J.M. show
the treatment providers directly contributed to
the parents’ failure to complete the treatment
plan (the appellate court also noted that failure
to complete the plan is not a ground for
termination).12
¶18 In this case, we have noted above that
Parents were given sufficient notice of the conditions to be corrected. Parents have not asserted that the State or treatment providers thwarted their ability to correct those conditions. The
clear and convincing evidence showed that
Children were in foster care for 15 of the most
recent 22 months before the Application for
Termination of Parental Rights. The jury found
that element as well as that termination was in
Children’s best interests. We find no error in
the jury’s finding on that ground.
¶19 Finally, Parents continue to misapprehend that the test for termination is “completing the treatment plan.” Parents argue clear
and convincing evidence does not support the
finding that termination was in Children’s best
interests because Parents “substantially completed their ISP.” As noted above, the plan is
used to help parents correct the conditions
leading to the deprived adjudication. In all termination cases, whether failure to correct conditions is alleged or not, the paramount concern is the health, safety, welfare, and best
interests of the children. 10 O.S.Supp.2006
§7006-1.1(A). The evidence leading to removal
shows that Parents home was not safe for Chil-
2655
dren: Parents neglected Children’s basic
hygiene needs as well as their needs to be safe
from physical harm, and exposed Children to
domestic violence. We have reviewed the trial
transcript and find the clear and convincing
evidence at trial showed termination of parental rights was in Children’s best interests.
AFFIRMED.
BELL, J., concurs, and HANSEN, J., dissents
with a separate opinion.
1. The affidavit attached to the Petition indicated DHS began
investigating when a daycare facility reported blood in J.T.’s diaper in
April 2004. DHS received another referral in April 2004 alleging
domestic violence between Parents. The affidavit also noted Father
was subject to a protective order obtained by his mother-in-law, and
Enid police had investigated Father for punching his father-in-law in
April 2004.
2. The Affidavit for Emergency Custody, prepared by DHS worker
Kaycie Felix, indicated that in August 2004, Enid Police responded to
a call in which Mother was at the local hospital and reported that
Father was drunk and attacked her in the presence of S.A. and S.T.
Mother sought a protective order against Father, but dismissed it a few
days later in hopes that Father would return to the family home.
The affidavit further alleged that Mother had left Children in the
care of her sister who had a confirmed DHS history in which all of the
sister’s children were removed from her home. At the time DHS went
to Mother’s sister’s home to investigate the instant case, the worker
learned S.A. and S.T. were staying overnight with their maternal
grandparents. The affidavit alleged the existence of a confirmed DHS
investigation of the maternal grandfather for molesting another grandchild in 2000, and the affidavit alleged Mother’s sister reported he had
molested her “all her life.” The affidavit also alleged that on August 17,
2004, when DHS workers went to Mother’s sister’s home, S.A., S.T.,
and J.T. were playing in a pool, with 3 inches of standing water, without adult supervision. (At that time, S.A., S.T., and J.T. were 4, 3, and 2
years old, respectively). The affidavit asserted that the maternal grandparents and Mother’s sister were inappropriate caregivers.
The affidavit also alleged that Mother reported to DHS investigators that she knew her sister had accused their father of molesting the
sister, and that Mother partly believed her sister, but Mother continued
to allow Children to stay with her parents at least 2 times per month.
Finally, based on continuing domestic violence and Mother’s failure to protect Children, the affidavit requested emergency custody of
Children for their safety.
3. In Paragraph III of the Amended Petition, State listed the following grounds supporting a deprived adjudication:
A) Parents’ home and yard contained several hazardous items and had
a stale odor,
B) the staff of Family Life Daycare observed that Children were dirty
and had an odor,
C) S.A. and S.T. disclosed to DHS and school staff that Parents hit each
other and Father told S.A. and S.T. not to report the hitting,
D) Children were exposed to multiple acts of domestic violence in the
home and Father was facing criminal charges involving domestic violence,
E) Mother was unwilling or unable to protect Children from violence
in the home, and Mother dismissed the protective order she had
obtained against Father,
F) Parents had placed Children with inappropriate caretakers,
G) Parents had failed to adequately supervise Children,
E) (sic) “See attached Affidavit for Deprived Petition . . . (and) attached
Affidavit for Emergency Custody, . . . .”
4. In the next section of the form, the trial court placed an “X” next
to the language indicating the court found efforts to prevent removal
or provide for the return of Children to the home “were not made
because removal was due to an alleged emergency and was necessary
for the child(ren)’s safety.” This paragraph further provides that the
court found the absence of efforts was reasonable under the circumstances “per petition.”
5. For the terms of Paragraph 3 of the Petition, see note 3, supra.
6. The stated reasons were: (1) daycare workers found blood and a
foul odor in J.T.’s diaper (and the examining pediatrician found no
sign of sexual abuse, but could not rule out sexual abuse), (2) DHS
2656
received a domestic violence referral, in which S.A. and S.T. reported
“daddy hits mommy and mommy hits daddy,” which Mother denied,
(3) Enid Police had “been involved with the residence,” (4) charges
were pending against Father for violence against Wife’s mother, and
(5) Father was accused of punching his father-in-law. The form stated
“exposure to domestic violence was confirmed.”
7. Sharon Sneddon Carpenter, the DHS treatment worker, testified
that DHS returned J.T. and J.T. because Parents were making progress
with their treatment plans and things “seemed to be going really
well.”
8. Carpenter visited the home at least once a month during the trial
reunification and noticed J.T. and J.T. appeared not to have had a bath
and smelled of urine, and had scratches and bruises. Carpenter further
explained the clutter in the home presented hazards to the children,
but Parents explained they did not have time to clean the house.
9. That statute provides, in pertinent part:
§ 7006-1.1. Termination of parental rights in certain situations
A. Pursuant to the provisions of the Oklahoma Children’s Code, the
finding that a child is delinquent, in need of supervision or deprived
shall not deprive the parents of the child of their parental rights, but a
court may terminate the rights of a parent to a child in the following
situations; provided, however, the paramount consideration in proceedings
concerning termination of parental rights shall be the health, safety or welfare
and best interests of the child:
***
5. A finding that:
a. the child has been adjudicated to be deprived, and
b. such condition is caused by or contributed to by acts or omissions of
the parent, and
c. termination of parental rights is in the best interests of the child,
and
d. the parent has failed to show that the condition which led to the
adjudication of a child deprived has been corrected although the parent has been given not less than the time specified by Section 7003-5.5
of this title to correct the condition;
***
15. A child has been placed in foster care by the Department of Human
Services for fifteen (15) of the most recent twenty-two (22) months
preceding the filing of the petition. For purposes of this paragraph, a
child shall be considered to have entered foster care on the earlier of:
a. the adjudication date, or
b. the date that is sixty (60) days after the date on which the child is
removed from the home.
B. An order directing the termination of parental rights is a final
appealable order.
(Emphasis added, emphasized language was added in 1998).
10. The process due in a termination proceeding includes notice by
the trial court of the parental conduct norms which the parent must
follow to regain legally unencumbered standing as a parent:
Judicial clarity in the prescribed norms of parental conduct is
essential to the preservation of the procedural safeguards mandated by state and federal due process. A “fair warning” requirement breathes life into these fundamental-law guarantees, while
lack of specificity makes them meaningless.
***
Norms for parental conduct are designed to advise parents of
what is expected of them qua parents and to guide them in avoiding patterns or a level of behavior that may trigger official intervention.
***
Notice which may be implicit in the adjudication — that
one’s general substandard parental behavior brought about the
loss of the custodial rights — is not enough because it is of little
utility in guiding a parent toward the expected conduct. A broad,
amorphous concept of parental unfitness cannot be said to put
one on notice of those conditions in one’s present lifestyle in
which the law requires one to make a change, nor does it give
one a factual basis for an earnest effort at conduct modification.
In Re C.G., 1981 OK 131, 637 P.2d 66, 69.
11. Those subsections provide, in pertinent part:
D. The individual treatment and service plan shall include, but not be
limited to:
***
2. Identification of the specific services to be provided to the child
including, but not limited to, educational, vocational educational,
medical, drug or alcohol abuse treatment, or counseling or other treatment services, and identification of the services to be provided to the
parent, legal guardian, custodian, stepparent, other adult person living
in the home or other family members, to remediate or alleviate the
conditions that led to the adjudication, including services needed to
Vol. 78 — No. 28 — 10/13/2007
assist the family to provide safe and proper care of the child or to
prevent further harm to the child;
3. A schedule of the frequency of services or treatment and the means
by which delivery of the services or treatment will be assured or, as
necessary, the proposed means by which support services or other
assistance will be provided to enable the parent or the child to obtain
the services or treatment;
***
6. Performance criteria that will measure the progress of the child and
family toward completion of the treatment and service plan including,
but not limited to, time frames for achieving objectives and addressing
the identified problems;
7. A projected date for the completion of the treatment and service
plan;
8. The name and business address of the attorney representing the
child;
9. The permanency goal for the child and the reason for selection of
that goal; and
10. a. In the case of a child with respect to whom the permanency plan
is adoption or placement in other permanent placement, documentation of the steps the Department is taking to:
(1) find an adoptive family or other permanent living arrangement for
the child,
(2) place the child with an adoptive family, a fit and willing kinship
relation, a legal guardian, kinship guardian, or in another planned
permanent living arrangement, and
(3) finalize the adoption or guardianship, kinship guardianship or
other permanent placement.
b. Such documentation shall include, at a minimum, child-specific
recruitment efforts such as the use of state, regional and national adoption exchanges, including electronic exchange systems.
***
J. The services delineated in the individual treatment and service plan
shall be designed to improve the conditions in the family home and aid
in maintaining the child in a safe home, to facilitate the return of the
child to the family home, or to facilitate the permanent placement of
the child. The plan shall focus on clearly defined objectives and shall
provide the most efficient path to quick reunification or permanent
placement. To the extent possible, the plan shall contain outcomebased evaluation criteria that measure success in the reunification or
permanent placement process.
12. See also In the Matter of C.R.T., 2003 OK CIV APP 29, ¶33, 66
P.3d 1004 (Held, error to instruct the jury on failure to correct conditions where the condition was a mental illness mother was unable to
correct. “In the context of extended foster care, the evidence must also
show that the parent bears the culpable responsibility for the fact that
the child has been in foster care for the requisite period and that the
parent is not the subject of an uncorrected condition which is by its
nature beyond the parent’s power to correct.”)
CAROL M. HANSEN, J., dissenting:
¶1 I dissent because Parents’ rights were terminated in the absence of the full panoply of
procedural safeguards due to them in a termination proceeding. The Oklahoma Supreme
Court has repeatedly recognized that the right
of a parent to the care, custody, companionship
and management of his or her child is a fundamental right protected by the federal and state
constitutions, requiring that the full panoply of
procedural safeguards be applied before a parent may be deprived of that right. In Re Adoption of D.T.H., 1980 OK 119, 615 P.2d 287, 290
(overruled on other grounds). The process due
in a termination proceeding includes notice by
the trial court of the parental conduct norms
which the parent must follow to regain legally
unencumbered standing as a parent. The prescribed norms of parental conduct must be
stated with judicial clarity in order to preserve
Vol. 78 — No. 28 — 10/13/2007
the procedural safeguards mandated by state
and federal due process. A lack of specificity
renders these fundamental-law guarantees
meaningless. In Re C.G., 1981 OK 131, 637 P.2d
66, 69.
¶2 The trial court in this case failed to provide the required judicial clarity in advising
Parents of the conditions leading to Children
being adjudicated deprived. At the adjudication hearing, the trial court stated which allegations of the petition it found proved. However, it failed to place those findings in its
journal entry, stating instead, “STATE HAS
SUSTAINED A MAJORITY OF ALLEGATIONS
IN PETITION.” This language leaves doubt as
to which of the allegations were proved and
which were not. The trial court’s adjudication
order fails to provide Parents the requisite
notice of the conditions leading to Children’s’
adjudication as deprived children. The majority appears to view the trial court’s oral statement at hearing as sufficient notice of the conditions leading to deprived adjudication. In the
absence of any showing Parents received a
memorialization of those findings, I cannot
agree.
¶3 The individual service plan (ISP) also
lacks a clear statement of the conditions leading to deprived adjudication. At most, it can be
construed to give notice that Children were
adjudicated deprived because of domestic violence. However, at trial, State asserted other
conditions leading to the adjudication had not
been corrected. In particular, State’s attorney
argued Parents had not corrected the condition
of Children being dirty and having an odor.
She called as a witness Children’s courtappointed special advocate, who testified she
had supported returning Children to Parents
until an incident in which she had hands-on
experience helping two of the children change
their clothes and discovered their basic hygiene
needs were not being met. Other witnesses
testified to Children’s’ odor. However, Parents’
ISP made no mention of correcting any conditions relating to Children’s’ hygiene needs. It
did not even address cleanliness of the home
except to require that Parents keep it “free from
clutter.”
¶4 Although the ISP arguably identified
domestic violence as a condition needing correcting, State put on no witness who testified to
continuing domestic violence based on personal knowledge, except Mother and Father
themselves. Mother testified Father had not hit
2657
her for three years but that she had bruises
from “wrestling.” Father testified they “trade
punches ... just for fun,” causing bruises. Neither Parent seemed to consider bruise-causing
conduct to be domestic violence when it was
not done in anger. The ISP did not specify
otherwise.
¶5 Not only did Parents lack a clear statement of the conditions they were required to
correct, the jury also lacked such a statement.
State’s petition, the adjudication order, and the
ISP were submitted into evidence, but were
inadequate to inform the jury what conditions
led to the deprived adjudication. The jury did
not have access to the transcript of the adjudication hearing, upon which the majority relies.
Furthermore, the jury instructions did not cure
the deficiency, stating only that the jury must
find the conditions which caused the child to
be deprived have not been corrected.
¶6 The failure of the adjudication order to
clearly identify the conditions leading to
deprived adjudication and the failure of the
ISP to clearly state the norms of parental conduct to which Parents would be held resulted
in the lack of specificity that rendered notice
meaningless. Termination of parental rights in
the absence of adequate notice violated Parents’ due process rights.
2658
¶7 The lack of due process arising from an
absence of a clear statement as to the conditions leading to the deprived adjudication
prejudiced Parents’ ability to cure the conditions and reunite the family, extending the
amount of time Children spent in foster care.
Therefore, termination of Parents’ rights on the
alternate grounds that Children had been
placed in foster care for fifteen out of the most
recent twenty-two months preceding the filing
of the petition must also fail on due process
grounds. This fifteen-month provision does
not trump lack of due process. Otherwise, State
could hold children for any reason or no reason
and terminate parental rights any time fifteen
months had passed.
¶8 Parental rights were terminated in this
case because the children were dirty. DHS
never told Parents to bathe their children. It
never provided services to Parents to improve
the family’s hygiene. I further point out there
are no allegations of physical abuse of the children. I would remand with instructions to
maintain Children’s current placement while
implementing an ISP directed to Children’s
personal hygiene.
Vol. 78 — No. 28 — 10/13/2007
NOTICE
OBA Legal Ethics Advisory
Panel Issues Opinion
Applications requesting its modification, correction, clarification or withdrawal must be made in accordance with Legal Ethics Advisory Panel rules governing appeals and received by the panel coordinator on or
before Tuesday, Nov. 13, 2007. Unless an application for the revision or withdrawal of an advisory opinion
is timely received, the opinion shall become final.
The rules governing appeals may be found on the OBA Web site.
Send comments to Panel Coordinator Roger R. Scott, 525 South Main, Suite 1111, Tulsa, OK 74103.
Advisory Opinion 2007-OK LEG ETH 04
INQUIRY:
May an attorney employed by a publicly
funded organization, who is representing
indigent clients sentenced to death, contribute
personal funds to a client’s prison account,
when no compensation from the client will
ever be received by the attorney?
OPINION:
An attorney who is a full-time employee of a
publicly funded criminal defense organization
may contribute personal funds, as a gift and
not as a loan, to the prison account of an indigent client sentenced to death, where there is
neither expectation of repayment nor any actual compensation received from the client by the
attorney in any form.
I. FACTUAL BACKGROUND
1. This inquiry was posed by an attorney
who is a full-time salaried public defender
employed by a governmental agency. The
essence of the inquiry is whether such an attorney can ethically contribute
personal funds to the prison
accounts of prisoner clients
who are sentenced to death.
2. Such prisoners face some
financial obligations to be
paid from their official prison
accounts for such things as
Vol. 78 — No. 28 — 10/13/2007
medical services, certain clothing such as
underwear and shoes, and postage. In some
cases the prisoners do not have family support;
furthermore, they are prohibited as a class
from the nominal income-producing
opportunities available to other prisoners in
the system.
3. Under the terms of their employment the
public defender attorneys are prohibited from
receiving repayment from the prisoners, and
are further prohibited from engaging in the
private practice of law. Under these circumstances, there is no expectation of repayment
from the prisoner, nor reasonable possibility of
otherwise obtaining compensation, either
direct or indirect, from some further or later
representation of the prisoner.
4. These contributions would be gifts, as
opposed to loans for living expenses, or
advances for litigation costs. The funds would
be contributed directly to the prison accounts,
to be utilized to offset non-litigation related
prison expenses of the prisoners.
This advisory opinion
is subject to revision
or withdrawl
II. DISCUSSION
5. Rule 1.8 of the Oklahoma
Rules of Professional Conduct
(“RPC”)1 prohibits certain
transactions which might create a conflict of interest
between the lawyer and a cli2659
ent. The relevant portions of RPC 1.8 are as
follows:
( a) A lawyer shall not enter into a business
transaction with a client or knowingly acquire
an ownership, possessory, security or other
pecuniary interest adverse to a client unless:
(1) The transaction and terms on which
the lawyer acquires the interest are fair
and reasonable to the client and are
fully disclosed and transmitted in writing to the client in a manner that can be
reasonably understood by the client;
(2) The client is advised in writing of
the desirability of seeking and is given
a reasonable opportunity to seek the
advice of independent legal counsel on
the transaction; and
(3) The client gives informed consent,
in a writing signed by the client, to the
essential terms of the transaction and
the lawyer’s role in the transaction,
including whether the lawyer is representing the client in the transaction.
* * *
( e) A lawyer shall not provide financial assistance to a client in connection with pending
or contemplated litigation, except that:
(1) a lawyer may advance court costs
and expenses of litigation, the repayment of which may be contingent on
the outcome of the matter; and
cial assistance to a client in connection with
pending or contemplated litigation. This rule is
“based on the common-law prohibitions
against practice of champerty and maintenance.” State ex rel. Okla. Bar Ass’n v. Smolen,
2000 OK 95, ¶ 15, 17 P.3d at 462. The Smolen
court observed that the undesirable aspects of
champerty and maintenance which RPC 1.8(e)
intends to prohibit are:
(1) Clients selecting a lawyer based
upon improper factors, i.e. by the
enticement of financial aid.
(2) Conflicts of interest, including compromising a lawyer’s independent
judgment in the case and creating the
potentially conflicting roles of lawyer
and creditor.
8. The Black’s Law Dictionary definition of
champerty is “a bargain by a stranger with a
party to a suit, by which such third person
undertakes to carry on the litigation at his own
cost and risk, in consideration of receiving, if
successful, a part of the proceeds or subject
sought to be recovered.” Black’s Law Dictionary,
209 (5th ed. 1979). Maintenance is an “officious
intermeddling in a suit which in no way
belongs to one, by maintaining or assisting
either party, with money or otherwise, to prosecute or defend it”. Id. at 860.
6. If the money advanced to the indigent client was made with some expectation of repayment, the transaction could be considered a
business transaction falling within the ambit of
RPC 1.8(a) requiring written disclosure to the
client. However, with or without written disclosure, the Oklahoma Supreme Court has
consistently held that advancing or loaning
funds to a client for living expenses is prohibited under the provisions of RPC 1.8 (e). See
State ex rel. Okla. Bar Ass’n v. Smolen, 2000 OK
95, 17 P.3d 456; State ex rel. Okla. Bar Ass’n v.
Smolen, 1992 OK 116, 837 P.2d 894; State ex rel.
Okla. Bar Ass’n v. Boettcher, 1990 OK 92, 798
P.2d 1077.2
9. The prohibition of RPC 1.8(e) is against
providing financial assistance “in connection
with pending or contemplated litigation.” The
gifts contemplated in this instance are not “in
connection with” pending litigation. Though it
could be argued that the loans for living
expenses in the reported cases were not “connected to” pending litigation any more than
the contemplated gifts here, in fact the loans in
those cases were made by attorneys’ representing the client in cases in which there was prospective financial recovery, and in which there
was a promise or understanding for repayment
of the loan, often from the proceeds of the litigation. The Court has been clear that such
loans, even in nominal amounts, are prohibited under RPC 1.8. For example, in State ex rel.
Okla. Bar Ass’n v. Carpenter, 1993 OK 86, 863
P.2d 1123, the attorney made small individual
loans to different clients with repayment to
come from the proceeds of the case. The
Supreme Court found these to be prohibited
transactions.
7. The primary concern is with RPC 1.8(e)
which prohibits a lawyer from providing finan-
10. Under the facts here the champerty and
maintenance risks identified by the Smolen
(2) a lawyer representing an indigent
client may pay court costs and expenses of litigation on behalf of the client.
2660
Vol. 78 — No. 28 — 10/13/2007
opinion are not present. Nominal monetary
gifts by a public defender to a death row
inmate for prison system expenses offer no
possibility of a share of the proceeds of any
pending action, nor is such a gift related to
“officious intermeddling” to enable the inmate
to prosecute or defend a pending action. The
client’s choice of a public defender is dictated
by his or her indigent circumstances, and not
by expectation of financial assistance.
11. It is the expectation of repayment which
gives rise to the conflict of interest concern,
creating the risk that the lawyer might encourage the bird in hand of a settlement offer over
the two birds which might be available at trial.
Here, as there is no expectation of repayment,
there is no concern of a conflict of interest.
12. Accepting the Smolen premise that RPC
1.8(e) is intended to prohibit the evils of champerty and maintenance, the making of nominal
monetary gifts to indigent death row inmates
by salaried governmental public defenders
simply does not present the opportunity to
unduly influence a client’s choice of lawyer, to
create a conflict for the lawyer as both lawyer
for and creditor of the client, to maintain otherwise unmeritorious litigation, or to promote a
third party’s litigation with expectation of
profit or gain. These gifts, under the facts of
this particular situation, are purely humanitarian offers of assistance with no expectation of
return, to persons with no means of financially
reciprocating.
13. This rationale however would not extend
to attorneys in private practice, including attorneys who may be participants in Oklahoma
Indigent Defense System contracts, since such
attorneys also may maintain private practices
in which they could represent their indigent
clients in other capacities.
III. CONCLUSION
14. As limited by the factual situation here,
the ethical issues involved in the usual case of
attorney advances or loans to a client for living
expenses do not arise. The nature of the attorney’s full-time employment by a publicly
funded criminal defense organization, the
nature of the assistance as a gift without expectation of repayment, the nature of the representation as capital criminal defense with no prospect of monetary recovery, and the very nature
of the client as a death row inmate without
alternative available resources, all independently and collectively negate the champerty
and maintenance risk factors present in
other cases of attorney humanitarian loans to
clients.
1. The Oklahoma Rules of Professional Conduct have been amended by order of the Oklahoma Supreme Court, to be effective January 1,
2008. Rule 1.8 as set out herein is the amended rule.
2. Boettcher was decided under the predecessor of RPC 1.8 (e),
Disciplinary Rule 5-103(B) which then provided:
(B) While representing a client in connection with contemplated
or pending litigation, a lawyer shall not advance or guarantee
financial assistance to his client, except that a lawyer may
advance or guarantee the expenses of litigation, including court
costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided
the client remains ultimately liable for such expenses.
3. Or in the case of Boettcher, by an affiliated but separate loan
company created primarily for the purpose of lending money to clients
of the firm.
Feel like you’ve painted yourself into a corner?
If you need help coping with emotional
or psychological stress, please call
1 (800) 364 - 7886
Lawyers Helping Lawyers
Before it’s too late.• Confidential.• Responsive. • 24/7
Vol. 78 — No. 28 — 10/13/2007
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Vol. 78 — No. 28 — 10/13/2007
103rd
OBA Annual Meeting
Sheraton Hotel
Oklahoma City
Nov. 7-9, 2007
AlleventswillbeheldattheSheratonHotel
unlessotherwisespecified.
————————
tuesday, nOvemBer 6
OBA Registration ...............................4 – 7 p.m.
________
Oklahoma Fellows of
the American Bar
Foundation .....................6:30 p.m. – 9:30 p.m.
————————
wednesday, nOvemBer 7
OBA Registration ...................... 8 a.m. – 5 p.m.
________
________
OBA/CLE Seminar ................ 8:30 a.m. – 5 p.m.
Seeseminarprogramforspeakers
andcompleteagenda
Criminal Law
Family Law
Transactional Law
Nuts & Bolts
Litigation
________
OU College of Law
Alumni Reception
and Luncheon ............. 11:15 a.m. – 1:30 p.m.
Outstanding seniOr law schOOl student
award
AliciaCurrin-Moore
OBA Hospitality Area ............. 8 a.m. – 5 p.m.
________
Art Show Registration .................. 8 – 11 a.m.
TU College of Law
Alumni Luncheon .............Noon – 1:30 p.m.
________
________
Oklahoma Fellows of
the American Bar
Foundation .................... 8:30 a.m. – 9:30 p.m.
________
Board of Bar Examiners .... 8:30 a.m. – Noon
Vol.78—No.28—10/13/2007
award
MistyWatt
________
OCU College of Law
Alumni Luncheon .............Noon – 1:30 p.m.
award
JoshuaBrannon
2663
________
________
Criminal Law Section
Luncheon..............................Noon – 1:30 p.m.
Family Law Section............... 8:30 a.m. – 4 p.m.
________
Credentials Committee............... 9 – 9:30 a.m.
David Iglesias
Former U.S. Attorney
________
OBA/CLE Plenary
Session......................................... 9 – 11:50 a.m.
Earl Sneed Award
Ben Brown, Oklahoma City
________
Estate Planning Section......... 10 – 11:45 a.m.
________
________
Board of Governors Meeting..........2 – 4 p.m.
________
Rules and By-Laws
Committee................................ 10 – 10:30 a.m.
________
Board of Editors.............................3:30 – 5 p.m.
________
Law Day Committee........................5 – 6:30 p.m.
OBA Resolutions
Committee........................... 10:45 – 11:45 a.m.
________
________
President’s Reception........................7 – 9 p.m.
(Free for everyone
with meeting registration)
________
Past President’s Dinner..................8 – 10 p.m.
________
American Idol – OBA Style............9 – 11 p.m.
————————
Thursday, November 8
General Practice/Solo
& Small Firm Section.................... 8 – 9 a.m.
________
American College
of Trial Lawyers.............................. 8 – 9 a.m.
________
OBA Annual Luncheon
for Members, Spouses
and Guests...........................Noon – 1:45 p.m.
($30 with meeting registration)
OBA Artist of the Year
(to be announced at the luncheon)
Judicial Excellence Award
Judge Ray Dean Linder, Alva
Judge Sam A. Joyner, Tulsa
Liberty Bell Award
Oklahoma Educational Television Authority, Oklahoma City
Joe Stamper Distinguished Service Award
Winfrey Houston, Stillwater
Alma Wilson Award
Denny Johnson, Tulsa
Golden Gavel Award
OBA Member Services Committee, Debra Charles, Chair
OBA Hospitality Area.............. 8 a.m. – 5 p.m.
Neil E. Bogan Professionalism Award
Judge Bana Roberts, Oklahoma City
OBA Registration....................... 8 a.m. – 5 p.m.
John E. Shipp Award for Ethics
Sidney G. Dunagan, Oklahoma City
________
President’s Awards
(to be announced)
2664
Vol. 78 — No. 28 — 10/13/2007
________
Featuring:
Mineral Law Section.........................4 – 6 p.m.
Ben Stein
Actor, Author, Lawyer
________
Speaker:
Bruce Kramer
Professor, Texas Tech
University College of Law
Topic:
The Evolving Nature of the Split Estate and Other Developments in Oil and Gas Law
________
OBA Fun Walk................................4 p.m. – TBA
Professionalism Committee.............2 – 3 p.m.
________
MCLE Commission..........................2 – 3:30 p.m.
Workers Compensation
Section................................................4 – 7 p.m.
________
________
________
Real Property Section.......................2 – 4 p.m.
Financial Institutions
& Commercial Law
Section......................................4:30 – 5:30 p.m.
________
Law Office Management
Section................................................2 – 4 p.m.
________
Committee.....................................3 – 4:15 p.m.
________
________
Diversity Committee
Reception............................................5 – 6 p.m.
________
OBA Law Student Division.....5:30 – 7:30 p.m.
________
Bench And Bar Committee...............3 – 5 p.m.
________
Pro Bono Reception..................5:30 – 7:30 p.m.
________
Oklahoma Bar Foundation
Board of Trustees...................3:30 – 5:30 p.m.
________
Oklahoma Bar Foundation
Reception..................................5:45 – 7:30 p.m.
________
Legal Intern Committee..............3:30 – 5 p.m.
Diversity Committee Forum.............4 – 5 p.m.
Sweet Sounds of Sinatra..............7:30 – 9 p.m.
(Free for everyone
Taxation Law Section........................4 – 6 p.m.
Entertainment: R
enee Anderson and Todd Clark
sing a medley of songs by Crooner Frank Sinatra
________
________
________
Viva Las Vegas Casino Night.........9 – 12 p.m.
(Free for everyone
Sponsor: OBA Young Lawyers Division
Vol. 78 — No. 28 — 10/13/2007
2665
————————
Friday, November 9
________
General Assembly
Speakers:
Chief Justice
James R. Winchester
Oklahoma
Supreme Court
President’s Breakfast.................. 7:30 – 9 a.m.
________
YLD Fellows Breakfast............... 7:30 – 9 a.m.
________
OBA Registration...................... 8 a.m. – Noon
________
OBA Hospitality........................ 8 a.m. – Noon
________
General Assembly......................... 9 – 10 a.m.
Trailblazer Award
John Green, Oklahoma City
Outstanding County Bar Award
Oklahoma County Bar Association
Carter County Bar Association
Judge Gary L. Lumpkin
Oklahoma Court of
Criminal Appeals
Hicks Epton Law Day Award
Payne County Bar Association
Pontotoc County Bar Association
Outstanding Young Lawyer Award
Keri Williams, Stillwater
Outstanding Service to the Public Award
Frank D. Hill, Oklahoma City
Don Shaw, Idabel
Stephen D. Beam
President
Outstanding Pro Bono Service
John Hermes, Oklahoma City
Lewis N. Carter, Tulsa
Maurice Merrill Golden Quill Award
Karen Youngblood, Lawton
William G. Paul Oklahoma Justice Award
(to be announced)
2666
Vol. 78 — No. 28 — 10/13/2007
________
Indian Law Section................ 9:30 – 11:30 a.m.
________
Election of Officers & Members of the
Board of Governors
Approval of Title Examination Standards
House of Delegates............. 10 a.m. – Noon
Resolutions
________
Ballot Committee................... 11 a.m. – Noon
________
J. William Conger
President-Elect, Presiding
Oklahoma Fellows of the
American College of
Trust & Estate Counsel
Luncheon...................................Noon – 3 p.m.
Sponsored by J.P. Morgan
________
Environmental Law
Section................................ 11:30 a.m. – 2 p.m.
________
Health Law Section
Social Hour.............................4:30 – 6:30 p.m.
Program....................................4:30 – 6:30 p.m.
Dinner.......................................4:30 – 6:30 p.m.
NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT
OF DOCHELE BURNETT, SCBD #5325 TO MEMBERSHIP
IN THE OKLAHOMA BAR ASSOCIATION
Notice is hereby given pursuant to Rule 11.3(b), Rules Governing
Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will
be held to determine if Dochele Burnett should be reinstated to
active membership in the Oklahoma Bar Association.
Any person desiring to be heard in opposition to or in support of
the petition may appear before the Professional Responsibility
Tribunal the Oklahoma Bar Center at 1901 North Lincoln Boulevard,
Oklahoma City, Oklahoma, at 9:30 a.m. on Tuesday, December 4,
2007. Any person wishing to appear should contact Dan Murdock,
General Counsel, Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, Oklahoma 73152, telephone (405) 416-7007, no less
than five (5) days prior to the hearing.
Vol. 78 — No. 28 — 10/13/2007
PROFESSIONAL RESPONSIBILITY TRIBUNAL
2667
OBA/CLE Annual Meeting 2007
November 7
DAY 1
Family Law
Criminal Law
Transactional
Law
Nuts & Bolts
Litigation
WEDNESDAY
Registration
8 - 9 a.m.
Program Planners/
Moderators
Program Planners/
Moderator
Program Planners/
Moderators
Program Planners/
Moderators
Program Planners/
Moderators
Lynn Worley
Ben Brown
Charlie Sifers
Guy Jackson
LeAnne McGill
Renee DeMoss
Session 1
9 - 9:50 a.m.
The Interplay
Between Property
Division and
Support Alimony
The Overture:
Handling Juvenile
Delinquent &
Youthful Offender
Cases
Issues with a
Digital Office
Anatomy of a
Trial: A Dramatic
Run Through
Choreograph
for Success: Litigation Tactics Dos
and Don’ts
David W. Echols
Session 2
Handling the
10 - 10:50 a.m. Family Law Case
Involving Military
Personnel An Update
Bill LaSorsa
Session 3
11 - 11:50 a.m.
Jim Calloway
J. William Conger
Rene Gish
Ben Brown
Valerie Baker
Jennifer Chance
Walk the Line:
Handling a Basic
DUI Case
Charles Sifers
Jeff Sifers
Basic Guardian
Ad Litem: Now
that I am Here,
What Do I Do?
Putting the Parts
Together: Anatomy of a Criminal
Case
Noel Tucker
Cheryl Ramsey
Dim the Lights:
Issues in
Winding Down a
Law Practice
Gina Hendryx
(ethics)
Bringing Down
the House:
Recent Issues
with Real Estate
Titles
TBA
Selecting the Best
Entity for Your
Firm or Business
Gary W. Derrick
Judge Patricia
Parrish
The Grand
Finale: How to
Negotiate and
Settle a Case
Ed Able
Everyday Ethical
Dilemmas: What
Would You Do?
A Close Up:
Basic HIPAA for
Litigators
Gina Hendryx
(ethics)
Teresa Burkett
12-2 p.m. LUNCH (On your own)
Session 4
2 -2:50 p.m.
It Takes a Village:
Updated
Grandparental
Rights Law The Old and New
Mark Zannotti
2668
Setting the Stage:
The Anatomy of
a Writ and a
Criminal Appeal
Cindy Danner
(tentative)
Critical Review:
Top 10 Dos and
Don’ts in Probate
and Guardianship
Practices
Spotlight on
Persuasion:
Writing Briefs
that Win Your
Case
Judge Linda
Morrissey
Judge Theresa
Dreiling
Judge Sheila
Condren
Debra McCormick
Take a Cue:
Electronic
Discovery and
Litigation Today
Magistrate Judge
Sam Joyner
Vol. 78 — No. 28 — 10/13/2007
OBA/CLE Annual Meeting 2007
cont’d
Session 5
3 - 3:50 p.m.
Family Law
Criminal Law
Transactional
Law
Nuts & Bolts
50 Hot Tips:
Technology to
Improve Your
Practice
It’s About
Timing:
Representing
Defendants
Charged in Accelerations and
Revocations Cases
Professor Wizard
and the Magic
Wiffle Dust Avoiding an
Explosion in
Asset Protection
Effective File
Management:
From Paper to
Electronic
Systems
Panel Discussion
Kent Bridge
Session 6
4 - 4:50 p.m.
All the World is a
Stage: The Family
Law Ethics
Players
(ethics)
Fourth Amendment Focus: A
Search & Seizure
Primer
Jim Hughes
Guy Jackson
There Aren’t Any
Small Businesses,
Just Small
Players: Issues in
Representing a
Small Business
David Petty
Jim Calloway
Litigation
Handling the
Talent: CrossExamination of
Expert Witnesses
Ted Sherwood
Best Practices &
Strategies for
Interviewing
Clients and
Witnesses
Give ‘Em the Ole
Razzle Dazzle:
Use of
Technology in the
Courtroom
Robin F. Fields
Dan Morgan
Don Lovy
4:50 p.m. ADJOURN
DAY TWO
November 8
THURSDAY
Registration
8 - 9 a.m.
Topic:
OBA/CLE Isolated Events or
Plenary
System
Failures - A
Session
Discussion of the
9 - 11:50 a.m. Williamson and
Fritz Cases
Vol. 78 — No. 28 — 10/13/2007
Panel Discussion Featuring:
William Peterson, Pontotoc County district attorney
Mark Barrett, defense attorney
Stephen Saloom, policy director for the Innocence Project
Dennis Fritz, exonerated by DNA evidence
David Prater, Oklahoma County district attorney
Christy Shepherd, cousin of the murder victim
Chris Ross, Pontotoc County first assistant district attorney
2669
2007 Annual Meeting Registration Form
Please complete a separate form for each registrant.
________________
Name ________________________________________ E-mail ________________
______________
No.
Bar
______
Badge Name (if different from roster) ________________________
______________________
Address ________________________________________________________
______________________
Phone
City ______________________ State ____ Zip _______________
__________________
Name of Non-Attorney Guest___________________________________________
q No
Please change my OBA roster information to the information above. q Yes
Check all that apply:
q Judiciary q OBF Fellow q OBF Past President q OBA Past President q YLD Officer q YLD Board Member q YLD Past President
q Board of Bar Examiner q 2007 OBA Award Winner q Delegate q Alternate q County Bar President: County _______________________
q YES! Register me for the 2007 Annual Meeting, November 7, 8 & 9, in Oklahoma City.
Events will be held at the Sheraton Hotel. Registration fee includes continental breakfast in hospitality area, President’s Reception
ticket(s), The Sweet Sounds of Sinatra, convention gift, Vendors Expo, Art Contest and Viva Las Vegas Casino Night.
■ MEMBER:
q $50 through Oct. 12; $75 after Oct. 12......................................................... $ __________
■ NEW MEMBER
(Admitted after Jan. 1, 2007): q Free through Oct. 12; $15 after Oct. 12 ................ $ __________
■ LAW STUDENT DIV. q $25 through Oct. 12; $35 after Oct. 12 ........................................................ $ __________
q I will submit an entry (or entries) in the Art Contest. (Submit art registration form by Oct. 12.
Entry fee included in meeting registration.)
q I will participate in the OBA Walk that benefits Lawyers Helping Lawyers ( ___ tickets @ $10 each) ............ $ __________
I will be attending/participating in the following ticketed events in addition
to my registration fee for Annual Meeting:
q WED. & THURS.: CLE Multitrack
( ___ [0 or 1] ticket @ $150 through Oct.12; $175 after Oct. 12;
and Plenary
$50 for new members through Oct. 12, $75 after Oct. 12) .... $ ____________
q THURSDAY & FRIDAY:
( ___ [0 or 1] ticket @ $150 through Oct. 12; $175 after Oct. 12;
CLE Plenary and Recent Developments $50 for new members through Oct. 12, $75 after Oct. 12). ... $ ____________
q WED., THURS. & FRI.: CLE
( ___ [0 or 1] ticket @ $250 through Oct.12; $275 after Oct. 12;
$75 for new members through Oct. 12, $100 after Oct. 12) ..... $ __________
q THURSDAY: Annual Luncheon
( ___ number of tickets @ $30 each)....................................... $ __________
q FRIDAY: President’s Breakfast
( ___ number of tickets @ $20 each)....................................... $ __________
q Please check here, if under the Americans with Disabilities Act you require specific aids
or services during your visit to the OBA Annual Meeting. q Audio q Visual q Mobile (Attach a written description of your needs.)
I will be attending the following ticketed events that do NOT require Annual Meeting registration:
q WEDNESDAY: Law School Luncheon – (check one) �
q OCU q OU q TU
( ___ number of tickets @ $30 each) ....................................... $ __________
TOTAL $ __________
q THURSDAY: I will attend the Free Mental Health CLE seminar at 3 p.m.
THREE WAYS TO REGISTER
ent
■ MAIL this registration form with paym
or credit card info to:
OBA Annual Meeting
P.O. Box 53036
Okla. City, OK 73152
FAX this registration form with credit card
information to: (405) 416-7092.
■ ONLINE at www.okbar.org
ds
■ CANCELLATION POLICY Full refun
ds
will be given through Oct. 26. No refun
will be issued after deadline.
2670
PAYMENT OPTIONS:
q Check enclosed: Payable to Okla. Bar Association
Credit card:
q VISA
q Mastercard
Card #______________________________________________________________
Exp. Date____________________________________________________________
____________________________________________________________________
HOTEL ACCOMMODATIONS:
Fees do not include hotel accommodations. For reservations contact: Sheraton
Hotel at (405) 235-2780. Call by Oct. 15 and mention hotel code: OK BAR
for a special room rate of $89 per night. For hospitality suites, contact Craig
Combs at (405) 416-7040 or e-mail: craigc@okbar.org.
Vol.78—No.28—10/13/2007
2007 OBA ATTORNEY ART SHOW
REGISTRATION FORM
Deadline: Noon on Oct. 12, 2007
(No registrations will be accepted after this deadline)
Return form with
gistration fee to: OK 73152
Annual Meeting re
oma City,
P.O. Box 53036 • Oklah
oma Bar Association •
Oklah
________
____________________
__
__
__
__
__
__
__
__
__
Name
___________
____________________
__
__
__
__
r
be
um
N
A
______
OB
____________________
__
__
__
__
__
__
__
__
__
Address
_________
ate ______ Zip ______
St
_
__
__
__
__
__
__
_
__
City
x __________________
Fa
_
__
__
__
__
__
__
__
Phone ______
_______
____________________
__
__
__
__
__
__
__
__
__
E-mail
e described
of art, each of which ar
I will enter ___ pieces
below.
below. Please attach
all information requested s exceeding the
ail
det
in
te
ple
com
ry,
n for entrie
For each ent
all the required informatio
an additional sheet with
space provided.
Watercolor
Pottery
Name of Piece
Photograph
y
Size
The following
categories of art
will be judged:
• Oil Painting
• Acrylic
• Watercolor
• Black and White
Drawing
• Color Drawing
• Black and White
Photograph
• Color Photograph
• Print
• Three Dimensional
(sculptures,
woodwork, etc.)
• Craft (tile work,
stained glass,
needlepoint, etc.)
• Mixed Media
(screenprint,
enhanced
photographs, etc.)
Stained glass
Weight
Description
(only needed if 3-D, Craft,
or Mixed Media)
Vol.78—No.28—10/13/2007
2671
2007
OBA FUN
WALK
REGISTRATION FORM
Grab your walking shoes and join the
Oklahoma Bar Association and Lawyers
Helping Lawyers Foundation for the first
ever OBA Fun Walk during the 103rd
Annual Meeting in Downtown Oklahoma
City. All participants will receive a gift bag
including a free pedometer. You don’t
have to be a lawyer to enter the Fun Walk.
Everyone is encouraged to participate in
this fun and beneficial event.
Fun Walk will be held on
Hotel in Downtown OKC
Thursday, Nov. 8 at 4 p.m. starting at the Sheraton
Cost: $15
• Not registering for the Annual Meeting? Use this form to sign up.
• Attending the Annual Meeting? Use the meeting registration form to sign up.
• Not interesting in walking but want to contribute to the LHL Foundation? Use this
form. Tax receipts will be provided.
To walk, make your check out to LHL Foundation and mail to:
P.O. Box 53036
Oklahoma City, OK 73152
Name____________________________________ OBA Number___________________________
Address__________________________________________________________________________
City_____________________________________ State_________Zip________________________
Phone___________________________________Fax______________________________________
E-Mail____________________________________________________________________________
p I’m ready to walk.
p I’m skipping the walking but would like to donate.
Entry fee is non-refundable.
2672
Vol. 78 — No. 28 — 10/13/2007
American Idol – OBA Style
An Annual Meeting Event
Wednesday, Nov. 7, 2007 • 9 – 11 p.m.
•Perform one song to wow celebrity judges
•Prizes for first, second & third places
•Limited to 15 individuals or groups
•Groups must include at least 1 OBA member
•Participants provide background music on CD
•OBA performers must register for the meeting
Fill out the form below. Mail to: American Idol – OBA Style, OBA, P.O. Box 53036, OKC 73152
Fax to: 405.416.7001
Scan & e-mail to: idol@okbar.org
Name of act: ________________________________________________________
Your Name: _________________________________________________________
OBA #: ____________________________________________________________
E-mail address: ______________________________________________________
If group, names of other performers:
__________________________________________ OBA # (if applicable) ________
Questions: E-mail idol@okbar.org
Vol. 78 — No. 28 — 10/13/2007
2673
ANNUAL MEETING
OBA Resolutions
The following resolutions will be submitted to the
House of Delegates at the 103rd Oklahoma Bar
Association Annual Meeting at 10 a.m. Friday,
Nov. 9, 2007, at the Sheraton Hotel in Oklahoma
City.
An Act Amending 12 Oklahoma Statutes Section 1101.1 amending existing law to clarify an
offer of judgement is proper in condemnation
action.
A. Actions for personal injury, wrongful death,
and certain specified actions.
RESOLUTION NO. ONE:
CREATION OF STATE
ADMINISTRATIVE TAX
TRIBUNAL
BE IT RESOLVED by the House of Delegates
of the Oklahoma Bar Association that the Association adopt, as part of its Legislative Program, as published in the Oklahoma Bar Journal and posted on the OBA Web site at www.
okbar.org, proposed legislation creating new
law to be codified as 74 O.S. Section 9100 et seq.
and amending existing laws to create a State
Administrative Tax Tribunal to have jurisdiction over Oklahoma tax controversies and to
implement an independent Oklahoma Tax
Commission internal review and settlement
program. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by
the OBA Taxation Law Section.)
Resolution No. Two
Amendment to Title 12
BE IT RESOLVED by the House of Delegates
of the Oklahoma Bar Association that the Association adopt, as part of its Legislative Program, as published in the Oklahoma Bar Journal and posted on the OBA Web site at www.
okbar.org, proposed legislation amending Title
12 Oklahoma Statutes Section 1101.1 to clarify
that an offer of judgment is applicable to condemnation proceedings. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII
Sec. 5) (Submitted by the OBA member Ray
Vaughn.)
2674
As Introduced
1. Subject to the provisions of paragraph 5 of
this subsection, after a civil action is brought
for the recovery of money as the result of a
claim for personal injury, wrongful death, or
pursuant to Chapter 21 of Title 25 or Section 5
of Title 85 of the Oklahoma Statutes, any defendant may file with the court, at any time more
than ten (10) days prior to trial, an offer of judgment for a sum certain to any plaintiff with
respect to the action or any claim or claims
asserted in the action. An offer of judgment
shall be deemed to include any costs or attorney fees otherwise recoverable unless it
expressly provides otherwise. If an offer of judgment is filed, each plaintiff to whom an offer
of judgment is made shall, within ten (10) days,
file:
a. a written acceptance or rejection of such
offer, or
b. a counteroffer of judgment, as described in
paragraph 2 of this subsection.
If the plaintiff fails to file a timely response,
the offer of judgment shall be deemed rejected.
The fact an offer of judgment is made but not
accepted or is deemed rejected does not preclude subsequent timely offers of judgment.
2. In the event a defendant files an offer of
judgment, the plaintiff may, within ten (10)
days, file with the court a counteroffer of judgment directed to each defendant who has filed
an offer of judgment. If a counteroffer of judgment is filed, each defendant to whom the
counteroffer of judgment is made shall, within
ten (10) days, file a written acceptance or rejection of the counteroffer of judgment. If a defen-
Vol. 78 — No. 28 — 10/13/2007
dant fails to file a timely response, the counteroffer of judgment shall be deemed rejected.
The fact a counteroffer of judgment is made
but not accepted or deemed rejected does not
preclude subsequent counteroffers of judgment
if subsequent offers of judgment are made.
3. In the event the plaintiff rejects the offer(s)
of judgment and the judgment awarded the
plaintiff is less than the final offer of judgment,
then the defendant filing the offer of judgment
shall be entitled to recover reasonable litigation
costs and reasonable attorney fees incurred by
that defendant from the date of filing of the
final offer of judgment until the date of the
verdict. Such costs and fees may be offset from
the judgment entered against the offering
defendant; provided, however, that prior to
any such offset, the plaintiff’s attorney may:
a. exercise any attorneys lien claimed in an
amount not to exceed twenty-five percent
(25%) of the judgment, and
b. recover the plaintiff’s reasonable litigation
costs, not to exceed an additional fifteen percent (15%) of the judgment or Five Thousand
Dollars ($5,000.00), whichever is greater.
4. In the event a defendant rejects the
counteroffer(s) of judgment and the judgment
awarded to the plaintiff is greater than the final
counteroffer of judgment, the plaintiff shall be
entitled to recover reasonable litigation costs
and reasonable attorney fees incurred by the
plaintiff from the date of filing of the final
counteroffer of judgment until the date of the
verdict. Such costs and fees may be added to
the judgment entered in favor of the plaintiff.
5. The provisions of this subsection shall
apply only where the plaintiff demands in a
pleading or in trial proceedings more than One
Hundred Thousand Dollars ($100,000.00), or
where the defendant makes an offer of judgment more than One Hundred Thousand Dollars ($100,000.00). Any offer of judgment may
precede the demand.
B. Other actions.
1. After a civil action is brought for the recovery of money or property, including any proceedings brought pursuant to Chapter 2 of
Title 66 of the Oklahoma Statutes, with the
exception of Section 12 of Title 27, in an action
other than for personal injury, wrongful death
or pursuant to Chapter 21 of Title 25 or Section
5 of Title 85 of the Oklahoma Statutes, any
Vol. 78 — No. 28 — 10/13/2007
defendant may file with the court, at any time
more than ten (10) days prior to trial, an offer
of judgment for a sum certain to any plaintiff
with respect to the action or any claim or
claims asserted in the action. An offer of judgment shall be deemed to include any costs and
attorney fees otherwise recoverable unless it
expressly provides otherwise. If an offer of judgment is filed, the plaintiff or plaintiffs to
whom the offer of judgment is made shall, within ten (10) days, file:
a. a written acceptance or rejection of the
offer, or
b. a counteroffer of judgment, as described in
paragraph 2 of this subsection.
If a plaintiff fails to file a timely response, the
offer of judgment shall be deemed rejected.
The fact an offer of judgment is made but not
accepted or is deemed rejected does not preclude subsequent timely offers of judgment.
2. In the event a defendant files an offer of
judgment, the plaintiff may, within ten (10)
days, file with the court a counteroffer of judgment to each defendant who has filed an offer
of judgment and the claim or claims which are
the subject thereof. If a counteroffer of judgment is filed, each defendant to whom a
counteroffer of judgment is made shall, within
ten (10) days, file a written acceptance or rejection of the counteroffer of judgment. If a defendant fails to file a timely response, the counteroffer of judgment shall be deemed rejected.
The fact a counteroffer of judgment is made
but not accepted or is deemed rejected does not
preclude subsequent counteroffers of judgment
if subsequent offers of judgment are made.
3. If no offer of judgment or counteroffer of
judgment is accepted and the judgment awarded the plaintiff is less than one or more offers
of judgment, the defendant shall be entitled to
reasonable litigation costs and reasonable attorney fees incurred by the defendant with respect
to the action or the claim or claims included in
the offer of judgment from and after the date of
the first offer of judgment which is greater than
the judgment until the date of the judgment.
Such costs and fees may be offset from the judgment entered against the offering defendant.
4. If no offer of judgment or counteroffer of
judgment is accepted and the judgment awarded the plaintiff is greater than one or more
counteroffers of judgment, the plaintiff shall be
entitled to recover the reasonable litigation
2675
costs and reasonable attorney fees incurred by
the plaintiff with respect to the action or the
claim or claims included in the counteroffer of
judgment from and after the date of the first
counteroffer of judgment which is less than the
judgment until the date of the judgment. Such
costs and fees may be added to the judgment
entered in favor of the plaintiff.
5. An award of reasonable litigation costs and
reasonable attorneys fees under paragraph 3 of
this subsection shall not preclude an award
under paragraph 4 of this subsection, and an
award under paragraph 4 of this subsection
shall not preclude an award under paragraph 3
of this subsection.
6. This subsection shall not apply to actions
brought pursuant to Chapter 21 of Title 25 or
Section 5 of Title 85 of the Oklahoma Statutes.
Your one-click
resource to all
the information
you need.
C. For purposes of comparing the amount of a
judgment with the amount of an offer under
paragraph 3 or 4 of subsection A of this section
or paragraph 3 or 4 of subsection B of this section, attorney fees and costs otherwise recoverable shall be included in the amount of the
compared judgment only if the offer was inclusive of attorney fees and costs. Fees or costs
recoverable for work performed after the date
Vol. 77 — No. 26 — 9/30/2006
2676
of the offer shall not be included in the amount
of the judgment for purposes of comparison.
D. Evidence of an offer of judgment or a
counteroffer of judgment shall not be admissible in any action or proceeding for any purpose
except in proceedings to enforce a settlement
arising out of an offer of judgment or counteroffer of judgment or to determine reasonable
attorneys fees and reasonable litigation costs
under this section.
E. This section shall apply whether or not litigation costs or attorneys fees are otherwise
recoverable.
F. The provisions of this section are severable,
and if any part or provision thereof shall be
held void, the decision of the court shall not
affect or impair any of the remaining parts or
provisions thereof.
G. This section shall apply to all civil actions
filed after the effective date of this act.
H. For the purposes of this Section, the term
“Defendant” will apply to any person, agency
or other entity instituting a condemnation proceeding pursuant to Chapter 2 of Title 66 or
Title 27 of the Oklahoma Statutes.
The
Journal
The Oklahoma
Oklahoma Bar
Bar Journal
1
Vol. 78 — No. 28 — 10/13/2007
BAR NEWS
2008 OBA Board of Governors
Vacancies
Nominating Petition Deadline was 5 p.m. Friday, Sept. 7, 2007
OFFICERS
President-Elect
Current: J. William Conger, Oklahoma City
Mr. Conger automatically becomes OBA president
Jan. 1, 2008
(One-year term: 2008)
Nominee: Jon K. Parsley, Guymon
Vice President
Current: Jack S. Dawson, Oklahoma City
(One-year term: 2008)
Nominee: Michael C. Mordy, Ardmore
BOARD OF GOVERNORS
Supreme Court Judicial District Two
Current: Michael W. Hogan, McAlester
Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, LeFlore, Marshall, McCurtain, McIntosh, Pittsburg, Pushmataha and Sequoyah counties
(Three-year term: 2008-2010)
Nominee: Jerry L. McCombs, Idabel
Supreme Court Judicial District Eight
Current: R. Victor Kennemer III, Wewoka
Coal, Hughes, Lincoln, Logan, Noble, Okfuskee,
Payne, Pontotoc, Pottawatomie and
Seminole counties
Nominee: James T. Stuart, Shawnee
Supreme Court Judicial District Nine
Current: Dietmar K. Caudle, Lawton
Caddo, Canadian, Comanche, Cotton, Greer,
Harmon, Jackson, Kiowa and Tillman counties
Nominees: W. Mark Hixson, Yukon
O. Christopher Meyers II, Lawton
Member-At-Large
Current: Robert B. Sartin, Tulsa
Nominee: Jack L. Brown, Tulsa
Vol. 78 — No. 28 — 10/13/2007
Vacant positions will be filled at the OBA Annual
Meeting Nov. 7 - 9. Terms of the present OBA officers and governors listed will terminate Dec. 31,
2007.
Summary of Nominations Rules
Not less than 60 days prior to the Annual Meeting,
25 or more voting members of the OBA within the
Supreme Court Judicial District from which the
member of the Board of Governors is to be elected
that year, shall file with the Executive Director, a
signed petition (which may be in parts) nominating
a candidate for the office of member of the Board of
Governors for and from such Judicial District, or one
or more County Bar Associations within the Judicial
District may file a nominating resolution nominating
such a candidate.
Not less than 60 days prior to the Annual Meeting,
50 or more voting members of the OBA from any or
all Judicial Districts shall file with the Executive
Director, a signed petition nominating a candidate to
the office of Member-At-Large on the Board of Governors, or three or more County Bars may file appropriate resolutions nominating a candidate for this
office.
Not less than 60 days before the opening of the
Annual Meeting, 50 or more voting members of the
Association may file with the Executive Director a
signed petition nominating a candidate for the office
of President-Elect or Vice President or three or more
County Bar Associations may file appropriate
resolutions nominating a candidate for the office.
See Article II and Article III of OBA Bylaws for
complete information regarding offices, positions,
nominations and election procedure. Bylaws are
printed in the OBA 2007 Reference Guide (OBJ
Vol. 78, No. 4 January 27, 2007) and election
information appears on pages 251-253.
2677
A
Appointment to 2008 OBA Committees
s attorneys, it is our duty to generate a positive impact on the legal profession, whether it be
with our clients or our peers. One way for us to strengthen these efforts is to actively
participate in an Oklahoma Bar Association committee.
Volunteering for an OBA committee gives you the opportunity to work with like-minded attorneys and judges from across the state while making measurable progress in our communities and
our association.
If you are interested in being appointed to a committee, please log onto www.okbar.org and under
“Other News,” click “Sign up for a Committee” to select your desired committee. You may also
complete the form below and return it to me by Nov. 16, 2007, by mail, fax or e-mail. Please limit
your request to three committees. If I am unable to appoint you to a committee which you request,
I will save your name for consideration by the 2009 OBA President or appoint you to another
committee where there is a need.
Your involvement ensures that 2008 will be a productive year for the OBA. I look forward to
serving with you.
J. William Conger, President-Elect
–––––––––––––––––––––––––––––––– Standing Committees ––––––––––––––––––––––––––––––––
• Access to Justice
• Awards
• Bar Association Technology
• Bar Center Facilities
• Bench and Bar
• Civil Procedure
• Clients’ Security Fund
• Communications
• Disaster Response
and Relief
• Diversity
• Evidence Code
• Group Insurance
• Law Day
• Law-related Education
• Law Schools
• Lawyers Helping Lawyers
• Lawyers with Physical
Challenges
• Legal Intern
• Legislative Monitoring
• Member Services
• Paralegal
• Professionalism
• Rules of Professional
Conduct
• Solo and Small Firm
Conference Planning
• Strategic Planning
• Unauthorized Practice
of Law
• Uniform Laws
• Women in Law
• Work, Life Balance
Note: No need to sign up again if your current term has not expired. Check 78 OBAJ 298 for terms.
Please Type or Print
Name ____________________________________________________ Telephone _____________________
Address ___________________________________________________ OBA # _______________________
City ___________________________________________ State/Zip_________________________________
FAX ______________________________________ E-mail ________________________________________
Have you ever served
on this committee?
1st Choice ___________________________________
q Yes q No
2nd Choice __________________________________
q Yes q No
3rd Choice __________________________________
q Yes q No
Committee Name
If so, when?
How long?
_____________________
_____________________
_____________________
q Please assign me to only one committee.
q I am willing to serve on (two or three - circle one) committees.
Besides committee work, I am interested in the following area(s):
________________________________________________________________________________________
Mail: J. William Conger • c/o Oklahoma Bar Association • P.O. Box 53036
• Oklahoma City, OK 73152-3036 • Fax: (405) 416-7001 • E-Mail: debbieb@okbar.org
2678
Vol. 78 — No. 28 — 10/13/2007
ANNUAL MEETING
2007 House of Delegates
Delegate certification should be sent to OBA Executive Director John Morris Williams in order for names to
appear in print in the bar journal and to be included in the House of Delegates agenda book.
COUNTY
DELEGATE
ALTERNATE
Adair..........................
Alfalfa......................
Atoka.........................
Beaver........................
Beckham...................
Blaine........................
Bryan..........................
Caddo........................
Canadian................
Carter.......................
Cherokee.................
Choctaw..................
Cimarron.................
Cleveland..............
Coal............................
Comanche...............
Cotton......................
Craig..........................
Creek..........................
Custer........................
Ralph F. Keen II. . . . . . . . . . . . . . . . . . . . .
Marcus Andrew Jungman . . . . . . . . . . .
Pethi C. Hayes-Gabbard. . . . . . . . . . . . .
Jerry Lee Venable . . . . . . . . . . . . . . . . . . .
Brian Joseph Henderson . . . . . . . . . . . . .
Daniel G. Webber . . . . . . . . . . . . . . . . . . .
Payton L. Phelps . . . . . . . . . . . . . . . . . . .
W. Mark Hixson . . . . . . . . . . . . . . . . . . .
Roger D. Everett . . . . . . . . . . . . . . . . . . .
Khristan K. Strubhar . . . . . . . . . . . . . . . .
Michael Charles Mordy . . . . . . . . . . . . .
Judge Thomas S. Walker . . . . . . . . . . . . .
Jerry Scott Moore . . . . . . . . . . . . . . . . . . .
John Brandon Hill . . . . . . . . . . . . . . . . . .
Stanley Ed Manske . . . . . . . . . . . . . . . . .
Golda Long. . . . . . . . . . . . . . . . . . . . . . . . .
Michael Tupper. . . . . . . . . . . . . . . . . . . . .
Craig Sutter . . . . . . . . . . . . . . . . . . . . . . . .
Judge Stephen Bonner . . . . . . . . . . . . . . .
Judge Lori Walkley. . . . . . . . . . . . . . . . . .
Peggy Stockwell . . . . . . . . . . . . . . . . . . . .
Sandee Coogan . . . . . . . . . . . . . . . . . . . . .
Jan Grant-Johnson . . . . . . . . . . . . . . . . . .
Henry Herbst . . . . . . . . . . . . . . . . . . . . . .
Jan Meadows. . . . . . . . . . . . . . . . . . . . . . .
Richard Stevens. . . . . . . . . . . . . . . . . . . . .
Gary Rife. . . . . . . . . . . . . . . . . . . . . . . . . .
Robert L. Pendarvis . . . . . . . . . . . . . . . . .
Micheal Salem. . . . . . . . . . . . . . . . . . . . . .
Jim Pence . . . . . . . . . . . . . . . . . . . . . . . . . .
Jim Drummond. . . . . . . . . . . . . . . . . . . . .
Trae Gray . . . . . . . . . . . . . . . . . . . . . . . . .
Dietmar K. Caudle . . . . . . . . . . . . . . . . .
Chandra L. Holmes-Ray . . . . . . . . . . . . .
Orin Chris Meyers II. . . . . . . . . . . . . . . . .
Kathleen Flanagan . . . . . . . . . . . . . . . . .
O.B. Johnston III . . . . . . . . . . . . . . . . . . . .
Lauren L. Allison. . . . . . . . . . . . . . . . . . .
Michael Alan Souter. . . . . . . . . . . . . . . . .
Donna Lynn Dirickson . . . . . . . . . . . . . .
Vol. 78 — No. 28 — 10/13/2007
Kathryn René Morton
Judge. J. Douglas Gabbard II
Christopher Todd Trippet
Thomas R. Pixton
F. Douglas Shirley
Don Michael Haggerty II
Sharon Gayle Fore
Judge Edward C. Cunningham
Gregory Kyle Parker
Darryl F. Roberts
Mary Elizabeth Clark
Mackenzie Hamilton Jessie
Alan Michael Perry
Judge Ronald L. Kincannon
Holly Iker
Ben Odom
John H. Sparks
Amelia Pepper
Tracy Schumacher
Blaine Nice
David Ponder
Blake Virgin
Sara McFall
Cindee Pichot
Richard Wall
John Graves
Roger Housley
Debra Loeffelholz
D. Clay Mowdy
John Daniel Munkacsy Jr.
Gene Scott Ray
Charity Dawn Stubblefield
Michael Charles Flanagan
Kent Ryals
Judge Richard A. Woolery
Charles D. Watson Jr.
Debra Annett
2679
Delaware.................
Dewey.........................
Ellis.............................
Garfield...................
Garvin.......................
Grady.........................
Grant.........................
Greer..........................
Harmon....................
Harper.......................
Haskell.....................
Hughes......................
Jackson.....................
Jefferson..................
Johnston.................
Kay...............................
Kingfisher...............
Kiowa..........................
Latimer......................
LeFlore......................
Lincoln.....................
Logan........................
Love.............................
Major.........................
Marshall.................
Mayes..........................
McClain....................
McCurtain..............
McIntosh.................
Murray......................
Muskogee.................
Noble..........................
Nowata......................
Okfuskee..................
Oklahoma...............
2680
Lee Griffin Eberle . . . . . . . . . . . . . . . . . . .
Judge Rick M. Bozarth . . . . . . . . . . . . . .
Joe Lee Jackson . . . . . . . . . . . . . . . . . . . . .
Randy James Long . . . . . . . . . . . . . . . . . .
David C. Henneke. . . . . . . . . . . . . . . . . .
Daniel Thomas Sprouse . . . . . . . . . . . . .
Christianna L. Wright
Judge Robert William Collier
Laurie E. Hays
David G. Trojan
Bradley A. Gungoll
Judge John Alexander Blake
Judge Jack D. Hammontree Jr. . . . . . . . . Harvey Joe Bush
David L. Cummins . . . . . . . . . . . . . . . . .
Judge G. Wayne Olmstead . . . . . . . . . . .
Thomas H. Conklin III. . . . . . . . . . . . . . .
Robert Leo Irby. . . . . . . . . . . . . . . . . . . . .
John Holman Weigel . . . . . . . . . . . . . . . .
William Wayne Eakin . . . . . . . . . . . . . . .
Chad Doyle Upton . . . . . . . . . . . . . . . . . .
Christin Paige Lee . . . . . . . . . . . . . . . . . .
David Ross Bandy . . . . . . . . . . . . . . . . . .
Judge Winford Mike Warren
Murray Marcus Holcomb
Thomas Welborne Talley . . . . . . . . . . . . .
F. Nils Raunikar. . . . . . . . . . . . . . . . . . . . .
Randy H. Lawson. . . . . . . . . . . . . . . . . . .
Gregory A. Upton . . . . . . . . . . . . . . . . . .
Timothy Wayne Green. . . . . . . . . . . . . . .
Richard A. Cochran Jr.. . . . . . . . . . . . . . .
Judge N. Vinson Barefoot. . . . . . . . . . . . .
Judge Richard Allan Miller . . . . . . . . . .
Sharon Kay Phillips . . . . . . . . . . . . . . . . .
Bob A. Smith . . . . . . . . . . . . . . . . . . . . . .
Judge Michael D. DeBerry . . . . . . . . . . .
Phil S. Hurst . . . . . . . . . . . . . . . . . . . . . . .
Chad Alexander Locke . . . . . . . . . . . . . .
Carman D. Rainbolt . . . . . . . . . . . . . . . . .
James Richard McClure . . . . . . . . . . . . .
Sherry Wallace DeBord . . . . . . . . . . . . .
Judge John H. Scaggs
Larry Gene Vickers Jr.
Ponie Lance McCrary
John C. Williams III
Charles E. Geister III. . . . . . . . . . . . . . . . .
Judge Bryan C. Dixon. . . . . . . . . . . . . . .
Jim Kirk. . . . . . . . . . . . . . . . . . . . . . . . . . .
Judge Vicki L. Robertson. . . . . . . . . . . . .
Rex Travis . . . . . . . . . . . . . . . . . . . . . . . . .
Judge Robert E. Bacharach. . . . . . . . . . .
Judge Allen J. Welch. . . . . . . . . . . . . . . . .
Judge Kenneth L. Buettner . . . . . . . . . . .
Hugh A. Baysinger. . . . . . . . . . . . . . . . . .
Timothy J. Bomhoff . . . . . . . . . . . . . . . . .
John W. Norman. . . . . . . . . . . . . . . . . . . .
Charles F. Alden III . . . . . . . . . . . . . . . . .
Travis A. Pickens . . . . . . . . . . . . . . . . . . .
Benjamin J. Butts . . . . . . . . . . . . . . . . . . .
James Andrew Simms
Judge Carol S. Mollison
James Harley Ivy
Laura Jane Corbin
Todd Rogene Burlie
Kenneth Wayne Lee
Anthony George Mitchell
Douglas G. Dry
S. Stephen Barnes
Jeffrey L. Hirzel
Paulé Thrift Haggerty
Mitchell Aaron Hallren
Jeffrey Scott Landgraf
James D. Goodpaster
Leland Woodyard Shilling
Jerry L. McCombs
Tracy Pierce Nester
Gary W. Derrick
Keith F. Givens
Judge Philippa James
Mark A. Clayborne
Heidi J. Long
Robert N. Sheets
John E. Miley
Richard A. Riggs
Stephen A. Coleman
Daniel J. Morgan
Randall L. Sewell
Linda Samuel-Jaha
Jennifer L. Thompson
Vol. 78 — No. 28 — 10/13/2007
Okmulgee................
Osage..........................
Ottawa......................
Pawnee......................
Payne..........................
Pittsburg.................
Pontotoc.................
Pottowatomie......
Pushmataha..........
Roger Mills............
Rogers.......................
Seminole..................
Sequoyah.................
Stephens...................
Texas...........................
Tillman.....................
Tulsa..........................
Julie E. Bates. . . . . . . . . . . . . . . . . . . . . . .
Michael W. Brewer . . . . . . . . . . . . . . . . . .
Sally B. Gilbert . . . . . . . . . . . . . . . . . . . . .
Kevin D. Gordon . . . . . . . . . . . . . . . . . . .
D. Renee Hildebrant. . . . . . . . . . . . . . . . .
Judge Glenn Jones . . . . . . . . . . . . . . . . . .
Larry M. Spears. . . . . . . . . . . . . . . . . . . . .
Judge Carol Hubbard . . . . . . . . . . . . . . .
Judge Timothy D. DeGiusti . . . . . . . . . .
Laura McConnell-Corbyn . . . . . . . . . . . .
David W. Kisner . . . . . . . . . . . . . . . . . . . .
Judge E. Bay Mitchell III . . . . . . . . . . . . .
George W. Dahnke . . . . . . . . . . . . . . . . . .
John Heatly. . . . . . . . . . . . . . . . . . . . . . . .
Judge Page Morgan. . . . . . . . . . . . . . . . .
M. Courtney Briggs. . . . . . . . . . . . . . . . .
Lou Ann Moudy . . . . . . . . . . . . . . . . . . .
Jesse J. Worten III. . . . . . . . . . . . . . . . . . .
Charles W. Chesnut . . . . . . . . . . . . . . . . .
Shannan Gwen Tucker . . . . . . . . . . . . . .
Keri Gayle Williams . . . . . . . . . . . . . . . . .
Cory Thomas Williams . . . . . . . . . . . . . .
Katherine Elder Thomas . . . . . . . . . . . . .
Michael W. Hogan . . . . . . . . . . . . . . . . . .
Deresa Carol Gray Clark . . . . . . . . . . . . .
Kaycie Michelle Sheppard . . . . . . . . . . .
James T. Stuart . . . . . . . . . . . . . . . . . . . . .
Joe Vorndran . . . . . . . . . . . . . . . . . . . . . .
James Thomas Branam . . . . . . . . . . . . . .
F. Pat Versteeg . . . . . . . . . . . . . . . . . . . . .
Larry Ernest Rahmeier . . . . . . . . . . . . . .
Leslie A. Ellis Kissinger . . . . . . . . . . . . .
R. Victor Kennemer II . . . . . . . . . . . . . . .
Kent S. Ghahremani . . . . . . . . . . . . . . . . .
Jon K. Parsley . . . . . . . . . . . . . . . . . . . . . .
Bradford Lee Benson . . . . . . . . . . . . . . . .
S. Douglas Dodd . . . . . . . . . . . . . . . . . . .
Robert S. Farris . . . . . . . . . . . . . . . . . . . . .
Ret. Judge David E. Winslow . . . . . . . . .
Judge Millie Otey . . . . . . . . . . . . . . . . . . .
S. Douglas Dodd . . . . . . . . . . . . . . . . . . .
Larry D. Leonard. . . . . . . . . . . . . . . . . . .
C. Michael Zacharias . . . . . . . . . . . . . . . .
Judge Charles R. Hogshead. . . . . . . . . .
Kenneth L. Brune . . . . . . . . . . . . . . . . . . .
Williama G. LaSorsa. . . . . . . . . . . . . . . . .
B. Darlene Crutchfield. . . . . . . . . . . . . . .
Karen E. Langdon . . . . . . . . . . . . . . . . . .
Leonard Pataki. . . . . . . . . . . . . . . . . . . . .
Ronald N. Ricketts . . . . . . . . . . . . . . . . . .
Anne B. Sublett . . . . . . . . . . . . . . . . . . . . .
Hugh V. Rineer . . . . . . . . . . . . . . . . . . . . .
Allen M. Smallwood. . . . . . . . . . . . . . . . .
Martha Rupp Carter. . . . . . . . . . . . . . . . .
Mark W. Dixon . . . . . . . . . . . . . . . . . . . . .
James R. Gotwals. . . . . . . . . . . . . . . . . . .
Vol. 78 — No. 28 — 10/13/2007
Sheila D. Barnes
Celeste T. Johnson
K. Nicholle Jones Edwards
Todd Blasdel
Jim Webb
Leslie L. Lynch
Timothy E. Rhodes
Amy J. Pierce
Ken Felker
Richard L. Rose
Shanda McKenney
Timothy Henderson
Debra Charles
Myra P. Kaufman
Ashley Bowen Murphy
Alan Bardell
Javier Ramirez
Steven George Venturi
Erik Christopher Johnson
Susan Colleen Worthington
James Von Murray
Jodie Lyn Gage
Brett Daniel Cable
Jason David Christopher
T. Walter Newmaster
Greg Jackson
John Canavan
Jacqueline Jo Perrin
Newell E Wright Jr.
William Donald Huser
John Thomas Cripps III
Megan L. Kennedy (Simpson)
Clyde H. Amyx II
James Travis Barnett
Kurt G. Glassco
Jack L. Brown
Theodore P. Gibson
Vivian C. Hale
Gregory G. Meier
David M. Thornton Jr.
Keith A. Jones
Lori Moon Kastner
Shelton Benedict
Stephen J. Greubel
J. Travis Barnett
Barbara J. Eden
Julie Evans
Dwight L. Smith
Mary Katherine Saunders
Blake R. Givens
Molly A. Bircher
William E. Farrior
D. Kenyon Williams Jr.
2681
Wagoner..................
Washington...........
Washita.....................
Woods........................
Woodward..............
Phil Frazier. . . . . . . . . . . . . . . . . . . . . . . . .
Sharon L. Corbitt . . . . . . . . . . . . . . . . . . .
D. Faith Orlowski. . . . . . . . . . . . . . . . . . .
Patrick O’Connor . . . . . . . . . . . . . . . . . . .
John R. Woodard III . . . . . . . . . . . . . . . . .
Robert B. Sartin. . . . . . . . . . . . . . . . . . . . .
Renee DeMoss. . . . . . . . . . . . . . . . . . . . . .
Steven Balman . . . . . . . . . . . . . . . . . . . . .
Wm. Brad Heckenkemper . . . . . . . . . . .
Ron Main . . . . . . . . . . . . . . . . . . . . . . . . . .
Thomas P. Nally. . . . . . . . . . . . . . . . . . . . .
Kenneth A. Hicks . . . . . . . . . . . . . . . . . .
Christopher S. Kelly . . . . . . . . . . . . . . . . . Larry L. Bays . . . . . . . . . . . . . . . . . . . . . . Jean Lea Foard . . . . . . . . . . . . . . . . . . . . . JUDICIAL CONFERENCE
District Judge
Associate District Judge DELEGATES Judge J. Michael Gassett Judge Mickey J. Hadwiger Trisha Linn Archer
Robert P. Coffey Jr.
J. Christopher Davis
Chad Christopher Taylor
John Thomas Hall
Chris Camp
Matthew R. Dowdell
Walter Scott Mason III
Ronald Wayne Bittle
Bryce L. Hodgden
ALTERNATES
Judge Richard G. VanDyck
Judge Norman L. Russell
MEMBERS AT LARGE (Past Presidents)
William R. Grimm
Michael D. Evans
Harry A. Woods Jr.
Melissa DeLacerda
Gary C. Clark
Charles D. “Buddy” Neal Jr.
M. Joe Crosthwait Jr.
Douglas W. Sanders Jr.
John A. Gaberino Jr.
William J. Baker
J. Duke Logan
Sidney G. Dunagan
Bob W. Rabon
Andrew M. Coats
R. Forney Sandlin
Michael Burrage
Anthony M. “Tony” Massad
Burke Bailey
David K. Petty
James R. Eagleton
Judge Paul M. Vassar
John L. Boyd
Leslie L. Conner Jr.
William G. Paul
C.D. Northcutt
Judge Thomas R. Brett
Winfrey D. Houston
2682
Vol. 78 — No. 28 — 10/13/2007
ANNUAL MEETING
Title Examination Standards
2007 Report Of The Title Examination Standards
Committee Of The Real Property Law Section
Proposed Amendments to Title Standards for
2007, to be presented for approval by the House of
Delegates, Oklahoma Bar Association at the Annual Meeting, November 9, 2007. Additions are
underlined, deletions are by strikeout.
The Title Examination Standards Committee
of the Real Property Law Section proposes the
following revisions and additions to the Title
Standards for action by the Real Property Law
Section at its annual meeting in Oklahoma City
on Thursday, Nov. 8, 2007.
Proposals approved by the Section will be
presented to the House of Delegates at the
OBA Annual Meeting on Friday, Nov. 9, 2007.
Proposals adopted by the House of Delegates
become effective immediately.
An explanatory note precedes each proposed
Standard, indicating the nature and reason for
the change proposed.
Proposal 1.
The committee recommends adding a new Standard 24.13 to clarify to examiners what parties have
standing to bring a mortgage foreclosure action.
Standard 24.13. Standing of Nominee or
Agent:
An agent or nominee has standing to bring a
cause of action to foreclose the lien of a mortgage, if the agent or nominee remains the
record holder of the mortgage lien.
Comment: An examiner’s opinion of the
adequacy of such foreclosure proceedings shall
be formed in the same manner as in a review of
any other foreclosure action.
Authority: 12 O.S.Section 2017A; Mortgage
Electronic Registration Systems, Inc. v. Azize,
Case No. 2D05-4544 (Fla. App. 2/21/2007)
Vol. 78 — No. 28 — 10/13/2007
(Fla. App., 2007); Greer v. O’Dell, 305 F.3rd 1297
(11th Cir. 2002).
Proposal 2.
The committee recommends adding a new Standard 29.2.1. to give examiners guidance on when a
Certificate Tax Deed or Resale Tax Deed may be
relied upon without further requirement.
Standard 29.2.1. Reliance on Certificate Tax
Deed or Resale Tax Deed:
A title examiner may rely, without further
requirement, on a certificate tax deed or resale
tax deed as a conveyance of the real property
described in such deed, provided:
A. title to such real property is, or has been,
held of record by a purchaser for value who
acquired such title from or through the grantee
in such tax deed; and,
B. such certificate tax deed or resale tax deed
has been of record in the county in which the
land is situated for a period of not less than ten
years.
Authority: 16 O.S. Section 62 (d)
Caveat: The title acquired via a certificate tax
deed or resale tax deed may be subject to the
interest of any person in possession of the land
claiming title adversely to the title acquired
through such deed. 16 O.S. Section 62(d). Also
see the following unpublished case: Johnson v.
August, 2005 OK CIV APP 97.
Proposal 3.
The committee recommends amending Standard
35.2 to reflect the change in the title of the applicable
legislation and to update the citations of authority
for this standard.
2683
Standard 35.2 SOLDIERS AND SAILORS SERVICEMEMBERS’ CIVIL RELIEF ACT
absence from the record does not justify the
rejection of title.
The Soldiers and Sailors’ Civil Relief Act of
1940 Servicemembers’ Civil Relief Act, and
amendments thereto, are solely for the benefit
of those in military service; and, if the court has
presumed to take jurisdiction and there is
nothing in the record that would affirmatively
indicate that any party affected by the court
proceeding was in military service, the form of
the affidavit as to military service or its entire
Authority: Hynds v. City of Ada ex rel.
Mitchell, 195 Okla. 465, 158 P.2d 907 (1945),
1945 OK 167; Wells v. McArthur, 77 Okla. 279,
188 P.322 (1920), 1920 OK 96; State ex rel Commissioners of the Land Office v. Warden, 197
Okla. 97, 168 P.2d 1010 (1946), 1946 OK 155;
Snapp v. Scott, 196 Okla. 658, 167 P.2d 870
(1946), 1946 OK 114.
NOTICE OF MEETING FOR CREDENTIALS COMMITTEE
The Credentials Committee of the Oklahoma Bar Association will meet
Thursday, Nov. 8, 2007, from 9:00 — 9:30 a.m. in the Executive Board Room of
the Sheraton Hotel, One North Broadway, Oklahoma City, Oklahoma in
conjunction with the 103rd Annual Meeting. The Committee members are:
Jon K. Parsley, Guymon, Chairperson; Luke Gaither, Henryetta; David K. Petty,
Guymon; Michael C. Mordy, Ardmore.
NOTICE OF MEETING FOR RULES & BYLAWS COMMITTEE
The Rules & Bylaws Committee of the Oklahoma Bar Association will meet
Thursday, Nov. 8, 2007, from 10:00 — 10:30 a.m. in the Executive Board Room
of the Sheraton Hotel, One North Broadway, Oklahoma City, Oklahoma in
conjunction with the 103rd Annual Meeting. The Committee members are:
Melissa DeLacerda, Stillwater, Chairperson; D. Faith Orlowski, Tulsa;
Deborah A. Reheard, Eufaula; Peggy Stockwell, Norman; David L. Cummins,
Hollis.
NOTICE OF MEETING FOR RESOLUTIONS COMMITTEE
The Resolutions Committee of the Oklahoma Bar Association will meet
Thursday, Nov. 8, 2007, from 11:00 a.m. — 12:00 p.m. in the Executive Board
Room of the Sheraton Hotel, One North Broadway, Oklahoma City, Oklahoma in
conjunction with the 103rd Annual Meeting. The Committee members are: Allen
M. Smallwood, Tulsa, Chairperson; D. Renee Hildebrant, OKC; Dwight L. Smith,
Tulsa; M. Courtney Briggs, OKC; Dietmar K. Caudle, Lawton; Michael C. Salem;
Norman.
2684
Vol. 78 — No. 28 — 10/13/2007
OKLAHOMA BAR ASSOCIATION
2008 PROPOSED BUDGET
NOTICE:
Pursuant to Article VII, Section 1 of the Rules Creating and Controlling The
Oklahoma Bar Association, J. William Conger, President-Elect and Budget
Committee Chairperson, has set a Public Hearing on the 2007 Oklahoma Bar
Association budget for Thursday, October 18, 2007 at 9:00 a.m. at the
Oklahoma Bar Center, 1901 N. Lincoln Boulevard, Oklahoma City.
The purpose of the OBA is to engage in those activities enumerated in the Rules
Creating and Controlling the Oklahoma Bar Association (“the Rules”) and the
OBA Bylaws (“the Bylaws”). The expenditure of funds by the OBA is limited both
as set forth in the Rules and Bylaws and in Keller v. State Bar of California,
496 U.S. 1 (1990). If any member feels that any actual or proposed expenditure
is not within such purposes of, or limitations on the OBA, then such member may
object thereto and seek a refund of a pro rata portion of his or her dues
expended, plus interest, by filing a written objection with the Executive Director.
Each objection must be made in writing on an OBA Dues Claim Form, addressed
to the Executive Director of the OBA, P.O. Box 53036, Oklahoma City, OK
73152, and postmarked not later than Sixty (60) days after the approval of the
Annual Budget by the Oklahoma Supreme Court or January 31st of each year,
whichever shall first occur. Objection Procedure and form are available at
www.okbar.org/members/budget/htm.
Upon receipt of a member’s written objection, the Executive Director shall
promptly review such objection together with the allocation of dues monies spent
on the challenged activity and, in consultation with the President, shall have the
discretion to resolve the objection, including refunding a pro rata portion of the
member’s dues, plus interest or schedule a hearing before the Budget Review
Panel. Refund of a pro rata share of the member’s dues shall be for the convenience of the OBA, and shall not be construed as an admission that the challenged
activity was or would not have been within the purposes of or limitations on the
OBA.
Vol. 78 — No. 28 — 10/13/2007
2685
REVENUES
ADMINISTRATIVE:
Dues and Penalties
Investment Income
Annual Meeting
Commissions
Mailing Lists and Labels
Council on Judicial Complaints - Rent and Services
Board of Bar Examiners - Rent and Services
Oklahoma Bar Foundation - Rent and Services
Legal Intern Fees
Other
2007 BUDGET
$ 3,796,000
100,000
51,200
30,000
15,000
10,000
15,000
10,000
18,000
OKLAHOMA BAR JOURNAL
AND PUBLIC INFORMATION:
Oklahoma Bar Journal:
Advertising Sales
Subscription Sales
Other Miscellaneous
160,000
18,000
500
LAW RELATED EDUCATION:
P.A.C.E. Institute Grant
Other Grants
25,000
65,850
$ 4,045,200
CONTINUING LEGAL EDUCATION:
Seminars and Materials
GENERAL COUNSEL:
Disciplinary Reinstatements
MANDATORY CONTINUING
LEGAL EDUCATION:
Filing Penalties
Provider fees
PRACTICE ASSISTANCE
Consulting Fees and Material Sales
Diversion Program
Out of State Attorney Registration
COMMITTEES AND SPECIAL PROJECTS:
Mock Trial Program Fees
Insurance Committee
Women-in -Law Conference
Solo-Small Firm Conference
Law Student Division
Young Lawyers Division
73,000
59,100
12,000
2,000
208,400
26,685
24,000
45,000
50,000
50,000
4,000
5,000
TRANSFER FROM BUILDING FUND
TOTAL REVENUES
2686
$ 3,885,000
72,000
60,000
30,000
15,000
10,000
15,000
10,000
12,000
$ 4,109,000
178,500
160,000
18,000
500
178,500
90,850
25,000
65,450
90,450
1,085,500
1,055,750
15,000
15,000
132,100
83,000
59,500
142,500
222,400
12,500
1,500
243,400
257,400
204,685
26,685
24,000
45,000
50,000
50,000
4,000
5,000
204,685
900,000
1,600,000
$ 6,874,235
$ 7,653,285
Vol. 78 — No. 28 — 10/13/2007
EXPENDITURES
ADMINISTRATIVE:
Salaries and Benefits
Annual Meeting
Board of Governors and Officers
Conferences and Organizational Development
Legislative Monitoring
General and Administrative:
Utilities
Insurance
Data Processing
Building and Equipment Maintenance
Postage
Copier
Supplies
Rent
Grounds Maintenance
Audit
Miscellaneous
Overhead Allocated to Departments
OKLAHOMA BAR JOURNAL
AND PUBLIC INFORMATION:
Oklahoma Bar Journal:
Weekly Issue Printing
Special Issue Printing
Other
Public Information Projects
Newsclip Service
Pamphlets
Photography
Supplies
Miscellaneous
Allocated Overhead
2007 BUDGET
$
766,569
90,000
102,000
19,000
10,000
102,000
46,000
37,305
74,000
60,000
72,000
22,500
0
8,000
12,500
67,700
(449,014)
$
$ 1,040,560
807,230
100,000
107,000
19,000
10,000
104,900
46,000
47,540
82,000
60,000
72,000
22,500
0
8,000
13,500
69,700
(468,602)
$ 1,100,768
202,050
208,432
315,000
175,000
4,000
4,500
1,600
15,000
1,000
500
9,100
82,445
810,195
325,000
167,000
3,000
22,500
1,600
15,000
500
750
8,700
85,863
838,345
336,989
105,056
25,000
63,200
63,600
10,000
9,600
45,585
322,041
1,022,694
360,958
135,000
90,000
40,000
62,000
95,000
20,000
17,000
4,000
3,500
25,500
133,988
986,946
LAW RELATED EDUCATION:
P.A.C.E. Institute Program
Other Grant Projects
Training, Development and Travel
Newsletter
Miscellaneous
Allocated Overhead
98,152
40,000
65,850
72,600
10,000
7,000
43,387
CONTINUING LEGAL EDUCATION:
Meeting Rooms and Food Service
Seminar Materials
Co-sponsorship fees
Brochures and Bulk Mail
Speakers
Binders
Audio/Visual
Department Travel
Supplies
Miscellaneous
Allocated Overhead
353,664
135,000
110,000
47,500
85,000
90,000
20,000
14,000
7,000
3,000
28,000
129,530
Vol. 78 — No. 28 — 10/13/2007
2687
EXPENDITURES
2007 BUDGET
DISCIPLINARY:
Investigation and Prosecution
PRC Travel and Meetings
PRT Travel and Meetings
Department Travel
Library
Supplies
Miscellaneous
Allocated Overhead
$
MANDATORY CONTINUING LEGAL EDUCATION:
Printing & Compliance Reporting
Supplies
Commission Travel
Miscellaneous
Allocated Overhead
172,804
4,500
500
2,000
3,840
43,233
PRACTICE ASSISTANCE
OBA-NET Expense
Dues & Subscriptions
Library
Computer Software
Supplies
Travel and Conferences
Miscellaneous
Allocated Overhead
264,376
3,000
3,025
2,900
1,000
2,000
14,900
2,850
43,233
COMMITTEES AND SPECIAL PROJECTS:
Law Day
Women-in -Law Conference
Solo-Small Firm Conference
Mock Trial Program
FastCase Legal Research
General Committees
Lawyers Helping Lawyers Program
Law Student Division
Young Lawyers Division
$
$ 1,055,556
918,631
35,500
3,000
4,000
750
6,000
7,500
10,600
112,300
$ 1,098,281
226,877
180,201
4,500
500
1,500
4,200
45,433
236,334
337,284
276,954
4,000
2,775
2,400
1,600
1,500
15,300
3,100
45,433
353,062
422,500
40,000
55,000
50,000
35,000
80,000
49,000
45,000
3,500
80,000
437,500
40,000
55,000
50,000
35,000
75,000
44,000
40,000
3,500
80,000
CLIENT SECURITY FUND CONTRIBUTION
100,000
100,000
OKLAHOMA BAR CENTER RENOVATIONS
900,000
1,600,000
FURNITURE, FIXTURES AND OTHER CAPITAL IMPROVEMENTS
100,535
118,250
$ 6,353,190
$ 7,191,527
$
$
TOTAL EXPENDITURES
TOTAL REVENUES OVER (UNDER) EXPENDITURES
2688
881,620
35,500
3,000
3,000
750
6,000
7,500
11,000
107,186
521,045
461,758
Vol. 78 — No. 28 — 10/13/2007
ANATOMY OF A SIXTY MILLION DOLLAR VERDICT
presented by the Oklahoma Employment Lawyer’s Association (OELA)
Date:
Location:
December 14, 2007 Friday 9:00 am to 5 pm
Crabtown in Bricktown, Okla. City (Buffet lunch included in
tuition)
CLE credit is being submitted for approval for 8 hours CLE
including 1.1 hours of ethics.
$175.00 for early bird registration on or prior to December 1, 2007.
$200.00 from December 2, 2007 to the day of the seminar.
CLE CREDIT:
Tuition:
$ 25.00 discount for OELA members.
CANCELLATION Cancellations will be accepted at any time prior to the seminar
date;
POLICY:
however there will be a $25.00 charge for cancellations. There
will be no refunds for cancellations not made on or after December
10, 2007.
REGISTRATION: Make checks payable to: OELA
Send registrations to OELA, 325 Dean A. McGee, Okla. City, OK
73102
Fax No: (405) 235-6111
For information contact Lori Lanon at 235-6100
8:30 am Registration, donuts and drinks
PROGRAM
Morning Session – Critical Changes In The Law
9:00
9:50
10:00
11:00
12:00
1:00-5:00
Employment law developments for 2007 Mark Hammons
Break
Overview of the new rules governing electronic discovery
Hon. Stephen P. Friot, United States District Judge, Western Dist. Okla.
Overview of the new rules of professional ethics
Hon. Valerie K. Couch, Unites States Magistrate Judge, Western Dist. Okla.
Lunch buffet
Afternoon Session – Anatomy of a $60,000,000 Verdict
Kelly Hackworth v. Progressive Cas. Ins. Co., CIV-05-1467-M Stan Ward, lead
counsel
Selecting the case How do you pick a winning case?
Preparing the case
Depositions, discovery and strategy
The Opening Statement
Getting the jury’s attention and getting them on your side.
Trial turning points
Key events, defense mistakes, surprises and capitalizing on the
unexpected
The Closing Argument
How to convince a jury to give you the big verdict
Full Name:___________________________________________________
Firm:________________________________________________________
Address:_____________________________________________________
City:______________________________ State ______ Zip____________
Phone (
)_______________________ Email ______________________
Are you a member of OELA? ___ Yes ___ No
Vol. 78 — No. 28 — 10/13/2007
OBA #____________
2689
Mandates Issued
THE SUPREME COURT
Friday, September 28, 2007 102,070 M
ack Lynn Kennedy and Arvest Bank
v. Russell Lynn Kennedy and Randy
Joe Kennedy, Co-Personal Representatives of the Estate of Sandra Gale
Kennedy, Deceased and the State of
Oklahoma, ex rel., Oklahoma Tax
Commission.
102,239 J erald Leech #399754 v. State of Oklahoma, ex rel., Cathy Stocker, District
Attorney for the Fourth Prosecutorial
District; District Judge, Richard M.
Perry, District Court of Garfield
County, State of Oklahoma and The
State of Oklahoma.
102,520 Sandra Agee v. Mark Alan Agee.
102,530 S
uperior Stucco, Inc. v. Record Pools,
Inc., an Oklahoma Corporation.
102,829 P
atricia Jane Smith, formerly Hudson
v. Donald Leslie Hudson.
103,203 S
tate ex rel Department of Public
Safety v. Thirty Four Thousand, Four
Hundred
Eighty-Six
Dollars
($34,486.00) in US Currency and Ray
Mitchell Norris.
103,599 D
ebbie Wheat v. State of Oklahoma,
ex rel Tulsa County District Attorney.
103,614 D
ayton Tire and Old Republic Insurance Co., v. Joe McCann and The
Workers’ Compensation Court.
103,707 T
imothy Scott Plumlee v. Jonathan
Edward Clark individually and Dan
Malone, individually.
103,805 P
aul McWilliams v. Board of County
Commissioners of the County of
Comanche, a Political Subdivision of
the State of Oklahoma.
104,000 C
hristopher Stehm v. The Nordam
Group, Inc.
104,151 J immy D. Miller v. Boeing North
American Inc. &/or Rockwell International &/or Boeing Co., &/or
Atomic International &/or North
American Aviation, AIU Insurance
Company and The Workers’ Compensation Court.
2690
104,154 B
raum’s Ice Cream and Dairy Stores
v. Jeri Hubble and The Workers’ Compensation Court.
104,394 O
KC Gear, Inc., v. Russell Huffman,
dba Wranglerphotography.com.
104,688 George Williams v. Sherri Williams.
Friday, October 5, 2007
102,615 A
velia Espinoza v. JM Farms, Inc.,
Own Risk, Insurance Carriers and
The Workers’ Compensation Court.
102,710 J ill Parker Zizzi v. Kurt William
Zizzi.
102,921 J ames McDonald and Delia McDonald v. Chad Weatherford, J.D. Weatherford dba J.D. Weatherford Real
Estate and Ron Williams.
103,445 I n Re: the Adoption of J.A.C. James
William Cashner v. Josie Riter, et al.
103,725 M
ark A. Armstrong v. Branchcomb,
Inc., Commerce & Industry Insurance
Co., and The Workers’ Compensation
Court.
103,757 S
uper Clean Full Service Car Wash,
Villanova Insurance Co. &/or Oklahoma Property and Casualty Insurance Guaranty Association v. Michael
Hayes and The Workers’ Compensation Court.
103,763 J oshua D. Coplen v. Great Plains
Coca-Cola Bottling Company, American Homes Assurance and The Workers’ Compensation Court.
103,917 I n the Matter of the Estate of Hattie L.
Thiel, Deceased. Melissa D. Briscoe
and Marsha C. McDonald v. John C.
Morris, Personal Representative of
the Estate of Hattie L. Thiel, Deceased;
Lois R. Boyett; Beverly Harris and
Helen Morris and Debbie Smart.
104,007 T
ina L. Lybarger v. The Wellmark
Company, L.L.C.
104,025 G
entiva Health Services, Inc., and
Hartford Insurance Company of the
Midwest, Insurance Carrier v. Stella
Patricia Miller and The Workers’
Compensation Court.
Vol. 78 — No. 28 — 10/13/2007
104,291 F
rancisco Molina v. Midwest Drywall
Company, Inc., Reliance National
Insurance Company and/or Oklahoma Property and Casualty Insurance
Guaranty Association and The Workers’ Compensation Court.
104,306 B
renda Kathleen Deise v. Mastercuts
and/or Regis Corporation, The Hartford Insurance Company of the Midwest and The Workers’ Compensation
Court.
103,363 I n re: the Marriage of: Mary K. Brown
v. Larry K. Brown.
103,441 A
ngela Nider v. Republic Parking,
Inc.
103,783 C
orey Summers v. Westchester Specialty Services, Inc.
103,910 H
armon Memorial Hospital and Mega
Life & Health Insurance Company v.
Venas Dean Jackson and The Workers’ Compensation Court.
104,656 B
enjamin Yanez v. State of Oklahoma,
ex rel., Department of Public Safety.
104,184 C
ity of Tulsa v. Donnie L. Ramsey and
The Workers’ Compensation Court.
104,666 J uan Mungia, as surviving spouse of
Concepcion Mungia, deceased and
Jose Segura, individually v. St. John’s
Hospital, Triad Facilities, DeTar Hospital Navarro, Dr. Peter Paul Rojas
and Rhonda Maschiarelli.
104,204 B
etty Hall v. Via Christi Oklahoma
Regional Medical Center.
104,684 I n the Matter of T.S.: State of Oklahoma v. Summer Seawright, aka Summer Taylor, Natural Mother.
104,710 U
S Pipeline and Zurich Insurance
Company v. Clint Ellis and The Workers’ Compensation Court.
104,729 J ohn W. Rakestraw v. Ellis County,
Compsource Oklahoma and The
COURT OF CIVIL APPEALS
Friday, September 28, 2007 104,026 M
cBeth Sample, Jr., v. The State of
Oklahoma, ex rel., The Board of Tests
for Alcohol and Drug Influence, et al.
101,148 S
tate of Oklahoma, ex rel., Department of Human Services, Child Support Enforcement Division, Marcee L.
Dennison Smith v. Gregory Britt
Clark.
102,450 I n the Matter of the Guardianship of
Lucille M. Parker, a partially incapacitated person: Johnny Ray Parker, Special Guardian v. Goldie Demory.
102,719 Wayne Trobee v. Phillip Clifton, et al.
102,930 D. Bartlett v. S. Bartlett.
103,079 John R. Bauer v. Joel Kremer.
103,148 L
eo C. Bray v. State of Oklahoma, ex
rel., Oklahoma Department of Public
Safety and Merit Protection Commission.
Vol. 78 — No. 28 — 10/13/2007
104,274 I n the Matter of the Estate of Rebecca
K. Wallace, Deceased. Ray Eidemiller,
Special Administrator v. Pamela Lipscomb, Constestant.
104,333 I n the Matter of S.A, S.T., J.T. and J.T.,
deprived children. Joe and Lori Tambunga v. State of Oklahoma.
104,422 P
ete E. Gipson v. Stand By Personnel
Inc., Compsource Oklahoma and The
104,508 I n the Matter of the Last Will and Testament of Mary Barber Goddard, (also
known as Mary B. Goddard),
Deceased. Stephen R. Nance & Lyn Y.
Nance v. William R. McKinney, John
R. McKinney, James W. McKinney,
David McKinney, Debbie Fattaahi,
Chris McKinney, Sean McKinney and
Shannon P. Calhoun.
104,563 R
obert F. Edelmon v. Goodyear Tire &
Rubber Co., Own Risk and The Workers’ Compensation Court.
104,593 W
illiam H. Jenkins v. Idabel Stone
Company &/or Martin Marietta
Materials, Inc., United States Fire
Insurance Company &/or Pacific
Employers Insurance Company and
The Workers’ Compensation Court..
104,786 I ntercermanic, Inc., a foreign corporation v. Sunrise Park Management Co.,
L.L.C., an Oklahoma limited liability
company, d/b/a Sunrise Park Apartments, and Eli Hadad, individually
and, d/b/a Sunrise Park Apartments,
a/k/a Sunrise Park Estates.
2691
OBA/CLE and the State Historic Preservation Office Present
Introduction to Historic Preservation Law in
Oklahoma
DATES &
LOCATIONS:
Oklahoma City
October 25, 2007
Oklahoma Bar Center
1901 N. Lincoln Blvd.
CLE CREDIT:
This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal
Education Commission for 6 hours of mandatory CLE credit, including 0 hour of ethics.
TUITION:
$150 for early-bird registrations with payment received at least four full business days prior to
the seminar date; $175 for registrations with payment received within four full business days of
the seminar date. Register online at www.okbar.org. Approval for Real Estate credit is
pending.
CANCELLATION
POLICY:
Program:
Cancellations will be accepted at any time prior to the seminar date; however, a $25 fee will be
charged for cancellations made within four full business days of the seminar date.
Cancellations, refunds, or transfers will not be accepted on or after the seminar date.
Program Planner/M oderator
M elvena Heisch, Deputy State Historic Preservation Officer,
State Historic Preservation Office, Oklahom a City
8:30 a.m. Registration & Continental Breakfast
9:00
Introduction to Historic Preservation
Introduces the term inology of historic
preservation, the public agencies and
private organizations that play key roles in
historic preservation at the national, state,
and local levels, and includes an overview
of federal and state statutes related to
historic preservation.
M elvena Heisch
9:50
Break
10:00
2692
The National Historic Preservation Act:
How it is Implemented in Oklahoma
Criteria , process, and m eaning of listing
or eligibility of the National Register of
Historic Places and on Section 106 of the
Act.
M elvena Heisch
10:50
Effective Enforcement of Local
Historic Preservation Ordinances
W hat historic preservation ordinances
do, how they prom ote com m unity
revitalization and the challenges of
effective im plem entation of such
ordinances
James K. Reap, National Alliance
Preservation Com m issions, Athens,
GA
11:40
Networking lunch (included in
registration)
12:10 p.m. Covenants, Easements, and Other
Tools for Fostering Successful
Preservation
Various legal m echanism s for
insuring preservation of significant
archeological and historical
properties and related incentives
James K. Reap
Vol. 78 — No. 28 — 10/13/2007
1:00
1:50
Federal and State Tax Credits for
Rehabilitation of Historic Buildings
Certified rehabilitation of certified historic
structures, including eligibility criteria,
rehabilitation standards, and the
certification process
Catherine M ontgomery, Historic
Preservation Architect, State Historic
Preservation Office, Oklahom a City
2:00
Structuring the Financial Element of a
Certified Rehabilitation
Internal Revenue Service and Oklahom a
Tax Com m ission requirem ents that m ust
be m et to insure that owners/developers
can m axim ize the use of these im portant
historic preservation incentives
Joel Cohn, Principal, Reznick Group,
Break
P.C., Baltim ore
2:50
Adjourn
Introduction to Historic Preservation Law in
Oklahoma
Full Name____________________________________________________
G Oklahoma City
October 25, 2007
G Materials only $80
Pub. #296
Firm ________________________________________________________
Address _____________________________________________________
City ______________________________
Phone (
State ________Zip_________
) _______________________ E - Mail _____________
Are you a Member of OBA?  Yes  No OBA Bar#________________
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Register online at w w w .okbar.org/cle
Vol. 78 — No. 28 — 10/13/2007
2693
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
SUMMARY OPINIONS
Thursday, September 27, 2007
F-2006-901 — Appellant Donald D. Thompson was tried by jury and convicted of four
counts of Indecent Exposure, Case No. CF2005-16, in the District Court of Creek County.
The jury recommended as punishment one
year imprisonment in each count. The trial
court sentenced accordingly, ordering the sentences to run consecutively. It is from this judgment and sentence that Appellant appeals. The
Judgment and Sentence is AFFIRMED. The
Application for an Evidentiary Hearing on Sixth
Amendment Claims is DENIED. Opinion by
Lumpkin, P.J.; C. Johnson, V.P.J., concur in
result; Chapel, J., concur in result; A. Johnson,
J., concur; Lewis, J., concur.
Monday, October 1, 2007
F-2006-466 — Don R. Foglesong, Appellant,
was tried by jury and found guilty of Count I,
Manufacturing a Controlled Dangerous Substance (Methamphetamine), in violation of 63
O.S. Supp. 2004, § 2-401(G)(1) and Count II,
Possession of a Controlled Dangerous Substance (Methamphetamine), in violation of 63
O.S. 2001, § 2-402, after two or more prior felony convictions, in Oklahoma County District
Court, Case No. CF-2004-2261. The jury acquitted Appellant of Count V, Felonious Possession
of a Firearm, in violation of 21 O.S. 2001, §1287.
The jury sentenced Appellant to fifty (50) years
and a $25,000 fine for Count I and thirty (30)
years for Count II. The Honorable Jerry D.
Bass, District Judge, pronounced judgment and
sentence accordingly, with the sentences to run
concurrently. The trial court sentenced accordingly. From this judgment and sentence, Don
R. Foglesong has perfected his appeal.
AFFIRMED. Opinion by Lewis, J.; Lumpkin, P.
J., concurs; C. Johnson, V.P.J., concurs; Chapel,
J., concurs in results; A. Johnson, J., concurs in
results.
F-2006-751 — Janice Cooke, Appellant, was
charged with Permitting Child Sexual Abuse in
Oklahoma County District Court, Case No. CF2003-2515. The jury found Appellant guilty of
Permitting Child Sexual Abuse, in violation of
2694
10 O.S. Supp. 2002 § 7115 (F), and sentenced
Appellant to thirty (30) months imprisonment
and a $5,000 fine. The Honorable Jerry Bass,
District Judge, pronounced the judgment and
sentence in accordance with the jury. From this
judgment and sentence Janice Cooke has perfected her appeal. AFFIRMED. Opinion by
Lewis, J.; Lumpkin, P.J., concurs; C. Johnson,
V.P.J., concurs; Chapel, J., concurs; A. Johnson,
J., concurs in results.
Tuesday, October 2, 2007
F-2006-517 — Tracy E. Cline, Appellant, was
tried in a non-jury trial and found guilty of
Count I, Lewd Molestation, in violation of 21
O.S. Supp. 1992, § 1123 (A)(2), and Count II,
Lewd Molestation, in violation of 21 O.S. Supp.
1992, § 1123 (A)(2), in Tulsa County District
Court, Case No. CF-2005-3118. The Honorable
Clancy Smith, District Judge, sentenced Appellant to ten (10) years, with the last five (5) years
suspended, and a $500 fine for each Count.
Appellant received six (6) months credit for
time served. Both Counts are to run concurrently. The trial court sentenced accordingly.
From this judgment and sentence Tracy E.
Cline has perfected his appeal. AFFIRMED.
Lewis, J.; Lumpkin, P.J., concurs; C. Johnson,
V.P.J., concurs; Chapel, J., concurs; A. Johnson,
J., concurs.
F-2005-1141 — Kimberly Ann Burger, Appellant, was tried by jury for the crime of embezzlement (five counts) in Case No. CF-2003-84 in
the District Court of Payne County. The jury
returned a verdict of guilty and recommended
as punishment two years imprisonment for
Counts 1 and 2, and one year imprisonment for
counts 3, 4, and 5. The trial court sentenced
accordingly and ordered the sentences to be
served consecutively. From this judgment and
sentence Kimberly Ann Burger has perfected
her appeal. The Judgment and Sentence of the
District Court is AFFIRMED. Opinion by A.
Johnson, J.; Lumpkin, P.J., concurs; C. Johnson,
V.P.J., concurs; Chapel, J., concurs; Lewis, J.,
concurs.
F-2006-322 — Mecoli Democracy Johnson,
Appellant, was tried by jury for the crimes of
Count 1: Child Abuse; Count 4: Aggravated
Vol. 78 — No. 28 — 10/13/2007
Attempting to Elude a Police Officer; Count 5:
Driving While Privilege Suspended; and Count
6: Reckless Driving in Case No. CF-2004-6688
in the District Court of Oklahoma County. The
jury returned a verdict of guilty and recommended as punishment twenty years imprisonment on Count 1, five years imprisonment
on Count 4, one year imprisonment in the
county jail and a $500 fine on Count 5, and
ninety days in the county jail and a $500 fine on
Count 6. The trial court sentenced accordingly
and ordered the sentences in Counts 1 and 4 to
be served consecutively with each other and
Counts 5 and 6 to be served concurrently with
each other and with Count 4, for a total of
twenty-five years imprisonment and a $1000
fine. From this judgment and sentence Mecoli
Democracy Johnson has perfected his appeal.
The Judgment and Sentence of the District
Court is AFFIRMED. A. Johnson, J.; Lumpkin,
P.J., concurs; C. Johnson, V.P.J., concurs;
Chapel, J., concurs in results; Lewis, J., concurs.
F-2006-237 — Rickke Leon Green, Appellant,
was tried by jury for the crime of Grand Larceny in Case No. CF-2003-118 in the District
Court of Oklahoma County. The jury returned
a verdict of guilty and recommended as punishment five years imprisonment. The trial
court sentenced accordingly. From this judgment and sentence Rickke Leon Green has
perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. A.
Johnson, J.; Lumpkin, P.J., concurs in results; C.
Johnson, V.P.J., concurs; Chapel, J., recuses;
Lewis, J., concurs.
Wednesday, October 3, 2007
C-2007-83 — Petitioner, Jesse Allen Johnson,
entered a blind guilty plea in the District Court
of Oklahoma County, Case Number CF-20055714, and was convicted of First Degree Murder,
Count I, and Conspiracy to Commit a Felony
(First Degree Murder), Count II. Petitioner was
sentenced to life imprisonment without the
possibility of parole on Count I and ten (10)
years imprisonment on Count II, with both
counts to run concurrently. Petitioner moved to
withdraw his plea, but that request was denied
following a hearing. Petitioner now appeals his
conviction and the denial of his motion to
withdraw plea. The Petition for Writ of
Certiorari is hereby DENIED; the judgment
and sentences are hereby AFFIRMED. Opinion
by Lumpkin, P.J.; C. Johnson, V.P.J, concur;
Chapel, J., concur; A. Johnson, J., concur; Lewis,
J., concur.
Vol. 78 — No. 28 — 10/13/2007
F-2006-1109 — Appellant Lonnie Dionta
Hennesy was tried and convicted in a non-jury
trial of Possession of a Controlled Dangerous
Substance (marijuana and cocaine) with Intent
to Distribute, Case No. CF-2005-427 in the
District Court of Carter County. Appellant was
sentenced to four (4) years imprisonment and a
fine of $2,500.00. It is from this judgment and
sentence that Appellant appeals. AFFIRMED.
Opinion by Lumpkin, P.J.; C. Johnson, V.P.J.,
concur; Chapel, J., concur; A. Johnson, J.,
concur; Lewis, J., concur.
Thursday, October 4, 2007
F-2006-932 — LaCrisha Daniell Thomas,
Appellant, was tried by jury for the crimes of
Assault and Battery with a Dangerous Weapon
(Count I) and Conspiracy to Commit a Felony
(Count III) in Case No. CF-2005-4564 in the
District Court of Tulsa County. The jury
returned a verdict of guilty and recommended
as punishment ten years imprisonment and a
$5,000 fine on Count I, and two and one half
years imprisonment and a $5,000 fine on Count
III. The trial court sentenced accordingly, ordering the sentences to be served concurrently.
From this judgment and sentence LaCrisha
Daniell Thomas has perfected her appeal.
AFFIRMED. Opinion by C. Johnson, V.P.J.;
Lumpkin, P.J., concur; Chapel, J., concur; A.
Johnson, J., concur; Lewis, J., concur.
F-2007-140 and F-2007-141 — Kenneth William Mitchell, Appellant, appealed to this Court
from the acceleration of his deferred judgment
and sentencing, entered by the Honorable
Lowell R. Burgess, Jr., Associate District Judge,
in Case Nos. CF-2005-102 and CF-2006-13 in
the District Court of Pushmataha County.
DENIED. Lumpkin, P.J., concurs; C. Johnson,
V.P.J., concurs; Chapel, J., concur in result; A.
Johnson, J., not participating; and Lewis, J.,
concurs.
F-2006-1201 — Linnette Maerie-Pearl Woods,
Appellant, was convicted after a bench trial
with Enabling Injury to a Minor Child in Case
No. CF-2005-253 in the District Court of
McClain County. The District Judge sentenced
Appellant to ten years imprisonment with the
last three years suspended. From this judgment and sentence Linnette Maerie-Pearl
Woods has perfected her appeal. AFFIRMED.
Opinion by C. Johnson, V.P.J.; Lumpkin, P.J.,
2695
concurs; Chapel, J., concurs; A. Johnson, J.,
concurs; Lewis, J., concurs.
F-2006-1200 — Richard Milton Woods, Appellant, was convicted after a bench trial with
Injury to a Minor Child in Case No. CF-2005252 in the District Court of McClain County.
The District Judge sentenced Appellant to fifteen years imprisonment with the last three
years suspended. From this judgment and sentence Richard Milton Woods has perfected his
appeal. AFFIRMED. Opinion by C. Johnson, V.
P.J.; Lumpkin, P.J., concurs; Chapel, J., concurs;
A. Johnson, J., concurs; Lewis, J., concurs in
results.
Tuesday, October 9, 2007
F-2006-884 — Mark Edward Bullock, Appellant, was tried by jury for the crime of firstdegree felony murder in Case No. CF-20043010 in the District Court of Oklahoma County.
The jury returned a verdict of guilty and recommended as punishment life imprisonment.
The trial court sentenced accordingly. From
this judgment and sentence Mark Edward
Bullock has perfected his appeal. AFFIRMED.
Opinion by C. Johnson, V.P.J.; Lumpkin, P.J.,
concurs; Chapel, J., concurs in results; A.
Johnson, J., concurs; Lewis, J., concurs.
F-2006-1111 — Andre Deon Thompson,
Appellant, was tried by jury for the crime of
Robbery with Firearms, After Conviction of
Two or More Felonies in Case No. CF-20053720 in the District Court of Tulsa County. The
jury returned a verdict of guilty and recommended as punishment forty-five (45) years
imprisonment. The trial court sentenced accordingly. From this judgment and sentence Andre
Deon Thompson has perfected his appeal.
AFFIRMED Opinion by C. Johnson, V.P.J.;
Lumpkin, P.J., concurs; Chapel, J., concurs; A.
Johnson, J., concurs; Lewis, J., concurs.
THE ACCELERATED DOCKET
J-2007-612 — Following a non-jury trial upon
a petition alleging that the juvenile Appellant,
A.S., committed a delinquent act, the Honorable David N. Martin, Associate District Judge,
adjudicated Appellant a delinquent child. From
the February 6, 2007, final judgment of adjudication imposed in the District Court of Okfuskee County, Juvenile Division, Case No. JFJ2006-37, Appellant appeals. ADJUDICATION
AFFIRMED BUT REMANDED WITH
INSTRUCTIONS that an amended journal
2696
entry of adjudication be entered nunc pro tunc.
Lumpkin, P.J., concurs; C. Johnson, V.P.J.,
concurs; Chapel, J., not participating; A.
Johnson, concurs; Lewis, J., dissents.
J-2007-680 — T.D.W., Appellant, was charged
as an adult with First Degree Murder in Case
No. CF-2006-365 in the District Court of Comanche County. Appellant filed a Motion to Be
Certified as a Juvenile or Youthful Offender,
which was denied by the District Court on June
13, 20076. From this ruling, Appellant appeals.
The District Court’s ruling is REVERSED with
instructions to treat Appellant as a Youthful
Offender. Lumpkin, P.J., concurs; Chapel, J.,
concurs; Lewis, J., concurs.
J 2007-0678 — Appellant, T.E.L.’s, motion for
certification as a Youthful Offender or as a
juvenile in the District Court of Oklahoma
County, District Court Case No CF-2006-6333,
was denied by the Honorable D. Fred Doak,
Special Judge, on June 22, 2007. Appellant
appeals from the denial of his certification as a
Youthful Offender or as a juvenile. AFFIRMED.
Lumpkin, P.J., concurs; Johnson, C., V.P.J., not
participating; Chapel, J., concurs, A. Johnson,
J., not participating; Lewis, J., concurs.
COURT OF CIVIL APPEALS
(Division No. 1)
102,375 — Tracy Tarrant, d/b/a Trace Oil;
Paul E. Ellis; Keller J. Wiedey; Wendell J. Wiedey, Frederick E. Walta; Roberta Mae Walta;
and, Val Eugene Walta, Plaintiff/Appellees,
and Alice E. Fisher, Douglas K. Fisher, Gary L.
Fisher, Frankie Taylor, and Shirley Kramer,
Plaintiffs, vs. Capstone Oil & Gas Co., Defendant/Appellant. Appeal from the District
Court of Kingfisher County, Oklahoma. Honorable Susie M. Pritchett, Trial Judge. Defendant/Appellant, Capstone Oil & Gas Co. (Capstone), seeks review of the trial court’s orders
granting summary judgment against Capstone
on certain liability issues and judgment based
on a jury verdict against it on the remaining
issues, including damages. The trial court
properly granted declaratory judgment finding
Trace had succeeded Capstone as operator,
because voting rights under the JOA are undiluted by a non-consent position. The trial court
erred in granting summary judgment in favor
of Trace for breach of fiduciary duty because
Trace failed to present any evidence establishing a fiduciary relationship between it and
Vol. 78 — No. 28 — 10/13/2007
Capstone. Breach of duties under the JOA
gives rise to a breach of contract claim, not one
for breach of fiduciary duty. Summary judgment on Trace’s claims for breach of contract
and fraud is precluded by the presence of disputed material facts. The trial court erred in
submitting the conversion claim to the jury.
Conversion does not lie for a debt. The trial
court’s summary judgment is AFFIRMED to
the extent it granted declaratory judgment
finding Trace had succeeded Capstone as operator and is otherwise REVERSED. The trial
court’s judgment based on the jury verdict is
REVERSED. This matter is REMANDED for
new trial on Trace’s claims against Capstone
for breach of contract and fraud. AFFIRMED
IN PART, REVERSED IN PART, AND
REMANDED. Opinion by Hansen, P.J.;
Buettner, J., concurs, and Bell, J., concurs in
part, dissents in part.
103,708 — Richard C. Barnett, Plaintiff/
Appellee, vs. Darryl K. Simmons, and Paul A.
Franks, Individually, and as Partners d/b/a
Rock Oil Company, Defendant/Appellants.
Appeal from the District Court of Tulsa County, Oklahoma. Honorable Gordon D. McAllister, Jr., Trial Judge. In this action regarding
alleged right to royalties from oil sales, Appellants appeal from the court’s order denying
their Motion for Sanctions and Contempt of
Court Based upon the Apparent Destruction of
Electronic Files. Appellee initiated this action
alleging he had not been paid all royalties due
from oil produced by Rock Oil on the Osborn
Lease and that Rock Oil had breached its fiduciary duty to operate the lease in a prudent
manner by inappropriately limiting production and by transporting oil produced on the
Osborn Lease to other leases upon which he
had no interest. After review of the considerable respective expositions of facts and factual
arguments of the parties, this Court is unconvinced, under the standard set forth in State ex
rel., Tal v. City of Oklahoma City, 2002 OK 97, 61
P.3d 234, the trial court erred in finding Appellee’s removal of electronic data from his computer’s hard drive was not “willful.” Willfulness, within the context here, would require a
showing of malicious intent to deprive Rock
Oil of evidence material to their defense. It is
on that point we remain unconvinced the trial
court erred in finding Rock Oil did not meet its
burden to overcome the presumption regarding the evidence. However, we do find merit in
Rock Oil’s contention the trial court erred in its
finding that sanctions “should be imposed
Vol. 78 — No. 28 — 10/13/2007
only upon a showing of willfulness.” Rock Oil
was deprived of the opportunity to inspect the
hard drive of Appellee’s computer before the
“wiping” software was used. Appellee had
clearly been put on notice of Rock Oil’s desire
to inspect the hard drive and to have it “cloned”
for examination by a neutral forensic computer
expert. Appellee had further been made aware
of particular search terms proposed by Rock
Oil, and subsequent examination of the hard
drive revealed files with names potentially
related to some of those search terms may have
been permanently removed. Appellee argues
sanctions are not justified because Rock Oil
cannot establish any information removed by
the “wiping” programs would have been beneficial to its defense or that it was prejudiced
by its unrecoverable deletion. Rock Oil cannot
definitively prove prejudice because it was
deprived of the opportunity to examine the
information and establish its usefulness. Appellee had a duty to preserve the hard drive on his
computer as it was when he was informed it
may contain information relevant to Rock Oil’s
defense. His failure to do so, whether willful,
negligent or merely through inadvertence, is
deemed to have prejudiced Rock Oil. To determine the appropriate sanction for spoliation,
the trial court, on remand, may weight such
factors as the degree of fault by Appellee, the
degree of prejudice suffered by Rock Oil and
whether there is a lesser sanction that will
avoid substantial unfairness to Rock Oil, but
will serve to deter such conduct by others in
the future. The trial court has the discretion to
fashion an appropriate remedy to restore the
parties to a rough approximation of their positions if all evidence was available. In addition,
we do not find error in the court’s consideration of the testimony by Stadler, the court
approved neutral examiner, and Karen Kenworthy, who testified as an expert by Appellee.
There is nothing in the record to establish the
trial court did not give due consideration to
Standler’s findings. The court may not cede its
authority and fact finding discretion to the parties’ experts. If there was any error in allowing
Kenworthy’s testimony, we do not find it sufficiently harmful to warrant reversal. Her testimony was generally cumulative to other evidence which could be found to support Appellee’s contention he had his computer “repaired”
because it was operating improperly. The
court’s order is REVERSED AND REMANDED
for further consideration of Rock Oil’s motion
2697
for sanctions. Opinion by Hansen, P.J.; Buettner,
J., dissents with opinion, and Bell, J., concurs.
103,954 — Cynthia Ann Jacobson, Plaintiff/
Appellant, vs. Lewis Albert Jacobson, Defendant/Appellee. Appeal from the District Court
of Garvin County, Oklahoma. Honorable John
A. Blake, Trial Judge. Wife filed for divorce in
June 2002. The trial court awarded the parties
an absolute decree of dissolution. Wife and
Husband in his counter-appeal, contend the
trial court erred in determining the value of the
shares of stock in Husband’s closely-held corporation. In Oklahoma, enforceability of a buysell agreement for share determination within
a closely-held corporation is not limited only to
sales situations. The trial court erred in concluding the valuation of the shares was not to
be determined by the Buy-Sell Agreement.
Wife submits the value of Husband’s 288
shares themselves is marital property. Not only
is there no evidence of the latter, Wife has not
provided this Court with any authority to support her contention. The trial court did not
abuse its discretion in finding the 288 shares of
corporate stock to be Husband’s separate property. Wife submits that even if the 288 shares
are Husband’s separate property, there is evidence the value of the shares has been enhanced
due to her personal efforts of labor. The trial
court did not specifically find the value of the
288 shares was enhanced by Wife’s personal
efforts. Because the trial court did not make
any findings of fact as to property values on
any of the marital property it awarded the parties, nor did it make any findings regarding the
enhancement value of the Husband’s 288
shares, “[t]he record in this case is insufficient
to provide means for determining an equitable
disposition of these parties’ affairs without risk
of creating further inequity.” Because the trial
court erred in its method of valuation of the
288 shares of Husband’s stock, and because it
abused its discretion in failing to make findings of fact as to the values of all property, the
decree, as it relates to property division, is
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH DIRECTIONS to
determine the value of the property and enter
an equitable division. Wife’s request for appealrelated attorney fees is denied. AFFIRMED IN
PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS. Opinion by Hansen,
P.J.; Buettner, J., specially concurs with opinion,
and Bell, J., concurs.
2698
104,178 — Kathy Rust, Michal Rust, and Cari
Smith, Plaintiff/Appellees, vs. Carriage Services of OK, Inc., Carriage Funeral Holdings,
Inc., d/b/a Resthaven Memory Gardens, and
Resthaven Memorial Park, Defendant/Appellants. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Vicki L.
Robertson, Judge. Defendant/Appellants,
Cemetery, appeal from an interlocutory order
denying their Motion to Compel Arbitration.
Plaintiff/Appellees, Rusts, purchased crypts in
Cemetery’s mausoleum under contracts containing no arbitration provision. Years later,
Rusts purchased a bench at Cemetery under a
purchase contract containing a broad arbitration clause (Bench Contract). The following
year Rusts sued Cemetery for negligent treatment of human remains, negligent infliction of
emotional distress, and outrage. Cemetery
sought to compel arbitration of Rusts’ claims
under the arbitration clause in the Bench Contract, which provided it applied to any dispute
between the parties. Rusts asserted their claims
were unrelated to the Bench Contract. We hold
the Bench Contract arbitration clause did not
retroactively modify the earlier agreements,
and therefore did not apply to disputes arising
from the relationship of the parties commenced
by the earlier agreement. The trial court’s order
is AFFIRMED. Opinion by Hansen, P.J.;
Buettner, J., dissents with opinion, and Bell, J.,
concurs.
104,402 — Pangaea Exploration Corporation,
successor to Mickey J. Overall, Plaintiff/Counter-Defendant/Appellee, vs. Sarah Ryland,
Marie Billings, Barbara Ann Gill, Ross Lee
Thomas, Mildred Ellis, Georgia Burlingame,
Jacob W. Blevins, Ruth M. Blevins, Bill Dolan,
Barth CampBell, Denise CampBell, Kevin
CampBell, James Lynn Blevins, Roy Phillip
Blevins, Arleta Gayle Blevins, Steven Ellis
Blevins, Michelle Blevins, David M. Blevins,
and John M. Billings, Defendants/CounterPlaintiffs/Third-Party Plaintiffs/Appellants,
and Grace Arlene Billings, Judith Marie Teeple,
Elizabeth Billings, and Phern Billings, Defendants/Counter-Plaintiffs/ Third-Party Plailntiffs, vs. Oklahoma Title & Closing Company,
Inc., Third-Party Defendant. Appeal from the
District Court of Logan County, Oklahoma.
Honorable Donald L. Worthington, Judge.
Defendants/Counter-Plaintiffs/Appellants
Sarah Ryland, Marie Billings, Barbara Ann Gill,
Ross Lee Thomas, Mildred Ellis, Georgia Burlingame, Jacob W. Blevins, Ruth M. Blevins, Bill
Dolan, Barth CampBell, Denise CampBell,
Vol. 78 — No. 28 — 10/13/2007
Kevin CampBell, James Lynn Blevins, Roy
Phillip Blevins, Arleta Gayle Blevins, Steven
Ellis Blevins, Michelle Blevins, David M.
Blevins, and John M. Billings (Appellants)
appeal from summary judgment granted in
favor of Plaintiff/Counter-Defendant/Appellee Pangaea Exploration Corporation (Pangaea). In 2005, Pangaea sought to quiet title to
a mineral interest. Appellants counterclaimed
seeking to quiet title in their names, claiming
they did not intend to convey the minerals
when they conveyed the surface estate to Pangaea’s predecessor in 1997. Appellants’ counterclaim required reforming the deed. The trial
court erred in finding that the limitations period for reformation of deed began to run from
the date the deed was recorded. The five-year
limitations period for reformation of deed due
to mutual mistake runs from the time the
plaintiff discovered or should have discovered
the mistake. Pangaea’s cause of action for quiet
title accrued when Appellants filed their Notice
of Claim of Interest July 9, 2004. Under 12 O.
S.2001 §2013(C), Appellants’ counterclaim is
timely if it was not barred by a statute of limitations before Pangaea’s claim arose. The evidence in the record on appeal shows Appellants and the original grantee discovered the
mutual mistake in 2004. We remand for trial of
when the limitations period began to run as to
Appellants’ counterclaim, and consequently
whether it is timely under §2013(C). REVERSED
AND REMANDED. Opinion by Buettner, J.;
Hansen, P.J., and Bell, J., concur.
104,607 —Wal-Mart Stores, Inc. and American Home Assurance, Petitioners, vs. Dana
Emery and The Workers’ Compensation Court,
Respondents. Proceeding to Review an Order
of a Three-Judge Panel of The Workers’ Compensation Court. A three-judge panel of the
Workers’ Compensation Court unanimously
affirmed the order of the Workers’ Compensation trial court which found that claimant Dana
Emery (Emery), as a result of cumulative trauma, sustained personal injury to her right and
left legs (aggravations of pre-existing conditions) arising out of her employment with WalMart, Inc. (Wal-Mart). Wal-Mart contends that
the causation opinion of Emery’s treating physician, which it claims does not support jobrelated injury, was not properly rebutted. Finding the order of the three-judge panel was
supported by competent evidence, we sustain.
SUSTAINED. Opinion by Buettner, J.; Hansen,
P.J., and Bell, J., concur.
Vol. 78 — No. 28 — 10/13/2007
(Division No. 2)
104,034 — PTS Healthcare, Inc. d/b/a PTS
Healthcare, Plaintiff/Appellant, and Dr. Rob
Rowe, Inc., d/b/a Central Oklahoma Wellness
Clinic, Plaintiff, v. Mid-Century Insurance
Company, an insurance company doing business in the State of Oklahoma, Defendant/
Appellee. Appeal from Order of the District
Court of Oklahoma County, Hon. James B.
Croy, Trial Judge. Appellant PTS Healthcare,
Inc., appeals from the Trial Court’s order sustaining Appellee Mid-Century Insurance Company’s motion for summary judgment. In its
response to Mid-Century’s motion for summary judgment, PTS admitted that at the time
it provided physical therapy to Moss, it was
not licensed to practice any of the medical disciplines defined by 59 O.S.2001 § 725.2 as the
practice of a physician, and it did not employ
any person who was so licensed. Because PTS
is not a “physician” as that term is defined by
Oklahoma statutes and the express terms of
section 46 limit the availability of such liens to
“physicians,” 42 O.S. 2001 § 46 is not available
to PTS. Further, the Trial Court correctly held
that PTS was not a third-party beneficiary of
Moss’s settlement agreement with the tortfeasor. AFFIRMED. Opinion from Court of Civil
Appeals, Division II, by Fischer, P.J.; Wiseman,
J., concurs, and Rapp, C.J., dissents.
102,680 — Shelly Lynne Feddersen, Petitioner/Appellee, v. Philip John Feddersen, Respondent/Appellant. Appeal from an order of the
District Court of Canadian County, Hon. John
L. Wolking, Trial Judge, awarding custody of
parties’ minor child, LLF, to Mother and denying Father’s motion to reconsider. Mother filed
a petition for divorce asking for custody of LLF
and left Oklahoma for Illinois a few days later.
The trial court issued a contempt citation, but a
hearing was never held. In his answer, Father
asked for custody of LLF. A temporary order
was filed which indicated that the parties settled the issue of custody. At a trial on the matter, Mother testified that a few days after the
petition was filed she went to visit her grandmother in Illinois because Father was threatening and harassing her. She stated, “And when I
got to Illinois, I realized that [Father] couldn’t
harass me up there and I was safer there, so I
decided to stay.” Mother testified that, although
she agreed to joint custody when the temporary order was entered, she no longer thought
2699
joint custody would be in LLF’s best interest.
The guardian ad litem (GAL) testified that joint
custody is not workable and expressed the
opinion that Mother should be given primary
custody of LLF and that Father should have
visitation. The trial court signed the decree of
divorce, which granted primary physical custody to Mother and visitation in accord with
the GAL’s report. Father then filed a motion to
reconsider/new trial. The trial court denied
Father’s motion. We conclude that the trial
court did not abuse its discretion in denying
Father’s motion to reconsider/new trial. Father
failed to show that the evidence on which he
grounded his motion was newly discovered,
and he also failed to show that the evidence
materially affected his rights. Father next
asserts that the trial court erred in not requiring
Mother to return to Oklahoma with LLF after
she violated the relocation statute. Although
Mother may have violated the temporary
injunction or failed to provide the proper notification, we cannot say that the trial court’s
failure to address these issues was reversible
error. Father agreed to a custody arrangement,
at least temporarily, that included LLF staying
with Mother. From the testimony given at trial,
the trial court also could have concluded that it
was not in LLF’s best interests for Mother to
return to Oklahoma with her. Further, we cannot say that the trial court abused its discretion
in awarding Father less than “standard” visitation. The GAL reported that LLF was scared of
her father and afraid that he would not return
her to her mother. The GAL recommended a
visitation schedule to be put in place while
Father got his anger issues under control. We
find that Father failed to demonstrate that the
trial court abused its discretion in awarding
custody of LLF to Mother or in refusing to
grant him a new trial. AFFIRMED. Opinion
from the Court of Civil Appeals, Division II, by
Wiseman, J; Fischer, P.J., concurs, and Rapp, C.
J., concurs in result.
104,097 — Vanguard Environmental, Inc.,
Plaintiff/Appellant, v. Misty Lynn Curler,
Defendant/Appellee. Appeal from Order of
the District Court of Tulsa County, Hon. Jefferson D. Sellers, Trial Judge, granting summary
judgment to a former employee in an action
seeking injunctive relief and damages arising
out of alleged breach of restrictive covenants
contained in an employment contract. Limiting
our review to the issue that the employer prop2700
erly preserved and raised on appeal, we find
that the non-solicitation provisions of the covenant not to compete are, as a matter of law,
unenforceable. See Cardiovascular Surgical Specialists Corp. v. Mammana, 2002 OK 27, 61 P.3d
210; see also Bayly, Martin & Fay, Inc. v. Pickard,
1989 OK 122, ¶ 14, 780 P.2d 1168, 1173. We find
that the Trial Court did not err in granting
summary judgment to Curler. AFFIRMED.
Opinion from Court of Civil Appeals, Division
II, by Fischer, P.J.; Rapp, C.J., and Wiseman, J.,
concur.
102,287 — In the Matter of the Estate of
Leona D. Plummer, deceased, Victoria Lee
Womack, individually, and as Guardian for
Linda Hefner, an incompetent adult, and Ginger Goddard, as Trustee of the Bankruptcy
Estate of Victoria and Rodney Womack, Appellants, v. William Dawson Pulliam, Appellee.
Appeal from Order of the District Court of
Logan County, Hon. William W. Wheeler, Trial
Judge. Victoria Lee Womack (Victoria) appeals
a judgment denying her petition to contest the
Last Will and Testament of Leona D. Plummer
(Leona), deceased. William Dawson Pulliam
(William) is the appellee here and was the proponent of the Will in the trial court. On September 29, 2000, Leona executed the Will admitted to probate (the 2000 Will.) She had two
children from her first marriage, William Pulliam (William) and Linda Hefner, nee Pulliam,
(Linda), and grandchildren, one of whom, Victoria, contested the Will. Linda had suffered
severe mental illness for several years and her
exact whereabouts would be unknown for long
periods of time. In 1992, Victoria was officially
appointed as guardian of Linda. The 2000 Will
left virtually the entire estate to William. This
2000 Will, by general language, revoked an
earlier Will executed by Leona in Texas on
November 18, 1997 (1997 Will). The 1997 Will
bequeathed personal property to Victoria along
with the promissory note given by Victoria and
her husband to Leona when Leona lent them
money to buy a residence. All of her other
property was bequeathed to a Trust created,
but not funded, at the same time. Leona was to
be the beneficiary during her lifetime. Upon
her death, the Trust assets were to be liquidated
and distributed one-half to William and onehalf to Victoria in trust for Linda. Victoria was
made a contingent beneficiary if William or
Linda, or both, failed to survive Leona. Victoria
maintains that this is the only valid Last Will.
Vol. 78 — No. 28 — 10/13/2007
She contested the 2000 Will on the ground that
Leona did not possess testamentary capacity
when she executed the 2000 Will and that William exercised unlawful influence on Leona. A
portion of Victoria’s appeal involves interpretation of 84 O.S.2001, § 41(B). This Court holds
that Section 41(B) has a single meaning, i.e.,
there must be an appointment of a guardian
before the requirement of execution of the will
before a judge applies. A two-prong test must
be used to decide whether undue influence has
tainted a will. First, there must be a relationship which would induce a reasonably prudent
person to repose confidence and trust in another. Second, the stronger party in the relationship must have assisted in the preparation of
the testamentary instrument. Victoria maintains that circumstantial evidence leads to the
conclusion that William exercised undue influence. The distribution is unequal and appears
to run counter to Leona’s earlier stated desire
to insure that provision would be made for her
daughter. Nevertheless, there is no direct or
circumstantial evidence of undue influence.
Contestants’ evidence, in its best light, shows
that Leona suffered progressive mental deterioration beginning perhaps as early as 1999, but
of insufficient magnitude to destroy her ability
to possess testamentary capacity. Under the
record presented, this Court cannot say that the
trial court’s decision that Leona possessed testamentary capacity when she executed her
2000 Will is against the clear weight of the evidence. AFFIRMED. Opinion from Court of
Civil Appeals, Division II, by Rapp, C.J.; Fischer, P.J., and Wiseman, J., concur.
(Division No. 3)
Friday, September 28, 2007
103,437 — State of Oklahoma, ex rel. Physician Manpower Training Commission, Plaintiff/Appellee, v. Tony Lee Brown and Cheryl
Brown, Defendants, Sequoyah County - City of
Sallisaw Hospital Authority, d/b/a Sequoyah
Memorial Hospital, Garnishee/Appellant.
Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Charles G.
Humble, Judge. Appellant Hospital seeks
review of the trial court’s order granting judgment to Appellee State on State’s garnishment
claim, complaining the trial court erred in
granting judgment to State in violation of 12
O.S. §1194 and without joinder or service of
process on the properly named public trust
Hospital. Section 1193 of title 12, O.S., specifically provides for garnishment of the state and
Vol. 78 — No. 28 — 10/13/2007
its subdivisions, and we find no provision of
the Oklahoma statutes governing public trusts
which proscribes garnishment of a public trust.
Further, where the proper, but misnamed,
party is served with process, and appears, answers and defends by and through its attorneys,
the trial court commits no error to allow correction of the misnomer by amendment to conform the name to the proof. Hospital’s administrator admitted receipt of State’s garnishment
summons. Hospital appeared, answered and
defended State’s garnishment claim, and neither alleged nor proved any prejudice as a
result of its misnomer. AFFIRMED. Opinion
by Joplin, P.J.; Adams, J., and Mitchell, V.C.J.,
concur.
103,693 — Marsha Wright and Joseph Wright,
Jr., Plaintiffs/Appellees, v. Joseph Wayne
Wright, Defendant, v. Michael R. Green, Appellant. Appeal from the District Court of Cherokee County, Oklahoma. Honorable Bruce G.
Sewell, Judge. Appellant Green, an attorney,
seeks review of an order determining his
attorney’s lien to be invalid. Green claimed the
attorney lien for work on behalf of the Plaintiffs, Marsha Wright and Joseph Wright, Jr. on a
personal injury claim against Defendant, Joseph Wayne Wright and his liability insurer.
Green’s services were terminated before suit
was filed. Plaintiffs hired another attorney who
filed suit against the Defendant, and the case
was ultimately settled. Green argues his lien
was authorized under 5 O.S. 2001 §6. His argument is misplaced. Giving notice of his intended lien to the defendant’s insurer after he was
terminated and before suit was filed by another attorney did not perfect an attorney’s lien
under §6. Likewise, filing a notice of lien in the
case after it was commenced did not perfect a
lien. The order of the trial court is AFFIRMED.
Opinion by Mitchell, V.C.J.; Adams, J., and
Joplin, P.J., concur.
104,172 — Dana Kelly, strictly in her capacity
as the Mother and Next Friend of Dylan J.
Elkins, a minor child, Plaintiff/Appellant, v.
Wal-Mart Stores, Inc., Defendant/Appellee.
Appeal from the District Court of Cherokee
County, Oklahoma. Honorable Bruce Sewell,
Judge. Plaintiff seeks review of the trial court’s
order granting the motion for summary judgment of Defendant on Plaintiff’s premises liability claim to damages for personal injuries
caused by Defendant’s allegedly defective
shopping cart, complaining there exist material
facts in controversy concerning whether Defen-
2701
dant breached its duty to invitees by failing to
maintain its shopping carts in safe repair, thereby causing Plaintiff’s injuries. Defendant
presented evidentiary materials demonstrating
that, “at the time of the accident, the cart involved was determined to be in working condition with no defect, [and] it was immediately
returned to the floor for use.” Although Plaintiff testified at deposition the cart had wobbly
wheels, she could not identify any condition of
the cart or its wheels which may have caused
cart to flip over backwards, and, to the extent
Plaintiff testified that some unidentified defect
in the cart caused the accident, her opinion is
wholly speculative and insufficient to survive
summary judgment. Viewing the evidence in
the light most favorable to her, we consequently hold that neither the occurrence of the accident, nor Plaintiff’s testimony, reasonably supports an inference of either a defective cart, or
some defect in the cart as the proximate cause
of Child’s injuries. We therefore conclude the
trial court did not err in granting Defendant’s
motion for summary judgment. AFFIRMED.
Opinion by Joplin, P.J.; Mitchell, V.C.J.,
concurs, and Adams, J., concurs in result.
104,214 — Mike Gonzalez and Kyla Gonzalez, husband and wife, Plaintiff/Appellee, v.
Citizens Security Bank and Trust Company, an
Oklahoma lending institution, Defendant/
Appellant, Barbara Sides, individually and d/
b/a Heavenly Designs Custom Homes, Heavenly Designs Custom Homes, Inc., and Heavenly Designs of Oklahoma, Inc.; Spouse of
Barbara Sides, if any; Mike Stern Drywall; Cherokee Building Material, Inc.; Timmons Sheet
Metal, Inc.; Central Electric Co. of Tulsa, Inc.;
Tulsa Fireplace Supply, Co.; Tulsa Energy Control, Inc.; Mill Creek Lumber & Supply Co.;
Board of County Commissioners of the County
of Washington; Stan Stevens, Treasurer of Washington County; and Occupants of the Premises, Defendants, consolidated with, Citizens
Security Bank and Trust Company, Plaintiff, v.
Heavenly Designs Customs Homes, Inc.; Barbara A. Sides and John Doe, her spouse, if married; Occupants of the Premises; Stan Stevens,
Treasurer of Washington County, Oklahoma;
Board of County Commissioners of Washington County, Oklahoma; Mike Stern Drywall;
Cherokee Building Material, Inc.; Timmons
Sheet Metal, Inc.; Central Electric Co. Of Tulsa,
Inc.; Tulsa Fireplace Supply, Co.; Tulsa Energy
Control, Inc.; Mill Creek Lumber & Supply Co.,
Defendants. Appeal from the District Court of
Washington County, Oklahoma. Honorable
2702
Janice P. Dreiling, Judge. Bank seeks review of
the trial court’s order granting summary judgment, by which the trial court adjudicated the
priority of the parties’ respective liens. In this
accelerated review proceeding, Bank complains
the trial court erred in holding the purchasers’
lien asserted by Appellee Buyers to be superior
to Bank’s mortgage. The evidence uncontrovertedly demonstrates that Bank granted the
mortgage with actual notice of Buyers’ down
payment. Under that circumstance, Buyers’
purchaser’s lien is superior to Bank’s mortgage. AFFIRMED. Opinion by Joplin, P.J.; Adams,
J., and Mitchell, V.C.J., concur.
104,573 — Saint Francis Hospital, Inc., Plaintiff/Appellee, v. Benny O. Brott, Defendant/
Appellant. Appeal from the District Court of
Tulsa County, Oklahoma. Honorable P. Thomas Thornbrugh, Judge. Defendant (Brott)
appeals from an award of summary judgment
to Plaintiff (Saint Francis) for unpaid hospital
charges in the amount of $27,630.51 plus interest, attorney fees and costs. Brott admitted he
received medical treatment at Saint Francis
from approximately January 9, 2005 until January 23, 2005; that he was billed $28,024.16 and
that it was unpaid. However, he disputed this
amount was correct. Brott maintained there
was a question of material fact regarding whether he was double billed for services, and
whether he received all the treatment and
medicine for which he was billed. We agree
summary judgment was inappropriate. We
reverse and remand for further proceedings.
REVERSED AND REMANDED FOR FURTHER
PROCEEDINGS. Opinion by Mitchell, V.C.J.;
Adams, J., and Joplin, P.J., concur.
104,713 — Grand Lake Marina, Ltd, d/b/a
Marinas International, a/k/a Harbors View
Marina, Plaintiff/Appellant, v. Grand River
Dam Authority, Defendant/Appellee. Appeal
from the District Court of Craig County,
Oklahoma. Honorable James D. Goodpaster,
Trial Judge. Grand Lake Marina, Ltd, d/b/a
Marinas International, a/k/a Harbors View
Marina (HVM) appeals a trial court order granting summary judgment in favor of the Grand
Lake River Authority (GRDA) on HVM’s petition seeking, inter alia, a declaratory judgment
that its dock facilities comply with all state and
federal rules, regulations, and orders applicable to HVM’s commercial dock permit. Based on
the undisputed facts shown by the evidentiary
materials presented to the trial court, we conclude that GRDA’s Board of Directors’ October
Vol. 78 — No. 28 — 10/13/2007
21, 1998 determination precludes or bars it now
from claiming HVM’s dock facilities violate the
cove protrusion rule and that GRDA is not
entitled to summary judgment as a matter of
law. The trial court’s summary judgment in
favor of GRDA is reversed. The case is remanded to the trial court with instructions to enter
judgment in favor of HVM. REVERSED AND
REMANDED. Opinion by Adams, J.; Joplin,
P.J., and Mitchell, V.C.J., concur.
Thursday, October 4, 2007
104,312 — Rebecca Cox, Petitioner, v. WalMart Stores, Inc., American Home Assurance
Co., and the Workers’ Compensation Court,
Respondents. Proceeding to Review an Order
of a Three-Judge Panel of the Workers’ Compensation Court, Respondents. Rebecca Cox
(Claimant) appeals from a panel-approved
order of the Workers’ Compensation Court.
Claimant filed three claims against Wal-Mart
Stores, Inc. (Employer) for injuries she sustained in 2000 and 2001, which were consolidated. She alleged an injury to her left knee
and low back on May 23, 2000, and also alleged
injury to her low back from accidents on
August 17 and August 23, 2001. Employer
admitted the left knee injury, but denied claims
of a back injury. Trial was initially held in
December 2003, and the court found the knee
injury compensable. However, the court denied
the back injury claims, as well as claims for
further temporary total disability (TTD) benefits and medical treatment. The three-judge
panel vacated and remanded. The case was
retried on August 17, 2005. The court again
found Claimant had sustained a work-related
injury to her left leg in 2000, but did not sustain
any injuries from the 2001 incidents. Further,
the court found Claimant did not sustain injury
to her low back. The court found Claimant was
TTD from September 23, 2002 to August 26,
2003, but denied TTD after this date. The court
also denied Claimants request for an independent medical examination (IME). Claimant
appeals and contends the court’s finding that
she did not sustain injury to her back is not
supported by competent evidence. Second,
Claimant asserts the court’s orders denying
additional TTD or an IME for her knee and
back are not supported by competent evidence.
We disagree. Employer’s medical expert, Dr.
Mitchell, evaluated Claimant and reviewed her
medical records. By report dated August 20,
2001, he determined Claimant’s back injury
was not related to the 2000 work-related injury.
Vol. 78 — No. 28 — 10/13/2007
He emphasized the sudden onset of severe
pain and the lack of any mention of back pain
prior to a trip to South Dakota in February 2001
where she had to seek emergency care. His
report also stated that “Ms. Cox was very clear
in stating that she had experienced no back
pain prior to February 2001.” He determined
the cause of her back pain was an acute cause
from her trip. After this trip, she was first diagnosed with a herniated disk. This injury was
existing when she was injured in 2001 and
there was no evidence it was aggravated by her
2001 work-related incidents. After reviewing
the entire record, we find the order was supported by competent evidence and sustain.
SUSTAINED. Opinion by Mitchell, V.C.J.;
Adams, J., and Joplin, P.J., concur.
104,544 — In the Matter of B.O., State of
Oklahoma, Respondent/Appellant, v. James
and Margaret Poteet, Petitioners/Appellees.
Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Richard Kirby,
Judge. The State of Oklahoma appeals a district
court order allowing the continued placement
of the minor, B.O., with his foster parents of
three years pending their adoption of him.
B.O.’s grandmother also sought custody of the
right to adopt B.O. The trial court recognized
that both parties were qualified to adopt B.O.
and had loving relationships with him. The
State contends the trial court erred in holding
10 O.S. Supp. 2004 §21.1 did not apply to a permanent placement decision. In addition, State
asserts the trial court erred in applying the factors in §7003-5.6h, because Grandmother had
an existing loving relationship with B.O. Finally, State argues the court erred by ruling contrary to the various preferences under Oklahoma law. This court does not discount the
importance of the §21.1 preferences, the preference to keep siblings together in §7202, or the
preference of the child in §113. However, after
proper consideration of these factors, the trial
court must ultimately be guided by the best
interests of the child. The Legislature provided
specific factors in §7003-5.6h that weigh on the
best interests of a foster child when a long-term
foster family and a relative both want to adopt
the child. The trial court’s determination that
these factors favored Foster Parents was not
against the clear weight of the evidence or contrary to law. It did not err in continuing placement of B.O. with Foster Parents pending their
adoption of him. AFFIRMED. Opinion
by Mitchell, V.C.J.; Adams, J., and Joplin, P.J.,
concur.
2703
(Division No. 4)
102,669 — Sherman Carthen, Plaintiff/Appellant, v. The City of Oklahoma City, A Municipal
Corporation; Donald D. Bown, Individually
and as City Manager of the City of Oklahoma
City; Gary Marrs, Individually and as Fire
Chief, Fire Department of the City of Oklahoma City; Frank Wanto, Individually and as
Labor Relations Manager of the Personnel
Department of the City of Oklahoma City;
Steve Lumary, Individually and as Chairman
of the Internal Affairs Committee, International Association of Firefighters Local 1524, a
Fraternal Organization; International Association of Firefighters Local 1524, a Fraternal
Organization; Charles R. Stone, President of
International Association of Firefighters Local
1524, a Fraternal Organization; Tim Riddle, an
Individual; Alan Benson, Fire Chief, Fire
Department of the City of Oklahoma City;
James D. Couch, City Manager of the City of
Oklahoma City; Mike Anderson, President of
International Association of Firefighters Local
1524, a Fraternal Organization, Defendants/
Appellees. Appeal from the District Court of
Oklahoma County, Hon. Barbara G. Swinton,
Trial Judge. Plaintiff seeks review of the trial
court’s September 16, 2005, order granting an
appeal-related attorney’s fee and costs against
him. The appellate record is unnecessarily
voluminous, but the issue before this Court is
simple: did the trial court err in its award of an
appeal-related fee? We answer no and affirm
the trial court. AFFIRMED. Opinion from Court
of Civil Appeals, Division IV, by Goodman, J.;
Gabbard, P.J., and Reif, J., concur.
104,474 — R & L Carriers and Zurich North
American, Petitioners, v. Steve Aich and the
Workers’ Compensation Court, Respondents.
Proceeding to Review an Order of a ThreeJudge Panel of the Workers’ Compensation
Court, Hon. Kenton W. Fulton, Trial Judge,
affirming the workers’ compensation trial
court’s award of benefits to Claimant. The trial
court’s determination that Claimant sustained
a work-related injury to his ankle, with consequential aggravation of a pre-existing injury to
his lower back, is supported by the evidence.
Claimant’s evidence included his own testimony as to his altered gait after he broke his
ankle and was required to use a walking cast
and/or a crutch; and the opinion of the independent medical examiner that Claimant’s current condition was the result of a pre-existing
2704
condition that was “likely aggravated by the
abnormal gait” Claimant was forced to adopt
after his ankle injury. There is competent evidence supporting the workers’ compensation
court’s decision. SUSTAINED. Opinion from
Court of Civil Appeals, Division IV, by
Gabbard, P.J.; Goodman, J., and Reif, J., concur.
104,521 — Coastal Asset Recovery, L.L.C.,
Plaintiff/Appellee, v. Martha P. Creasy, an
Individual, Defendant/Third-Party Plaintiff/
Appellant, and Martha P. Creasy, as Trustee of
The Martha P. Creasy Revocable Trust Dated
December 10, 1993; U.S. Underwriters, Inc., an
Oklahoma Corporation; Advanced Marketing,
Inc., an Oklahoma Corporation; 20th Century
Marketing, Inc., an Oklahoma Corporation;
Wayne Creasy Agency, Inc., A Foreign Corporation; and Alpha Beta II Ltd., an Oklahoma
Limited Partnership, Defendants, and Marianne M. Mabie, an Individual, and as Personal
Representative of the Estate of Lefferts L.
Mabie, Jr., Deceased, Third-Party Defendant/
Appellee, and Lefferts L. Mabie, III, Interested
Party. Appeal from the District Court of Tulsa
County, Hon. P. Thomas Thornbrugh, Trial
Judge. Defendant and Third-Party Plaintiff
Martha Creasy appeals the trial court’s March
13, 2007, order granting summary judgment to
Third-Party Defendant Marianne M. Mabie.
The appeal was assigned to the accelerated
docket pursuant to Oklahoma Supreme Court
Rule 1.36(a)(1), 12 O.S.2001 and Supp. 2003, ch.
15, app. 1. We affirm. AFFIRMED. Opinion
from Court of Civil Appeals, Division IV, by
Goodman, J.; Gabbard, P.J., and Fischer, J.
(sitting by designation), concur.
Friday, September 28, 2007
104,121 (companion with No. 104,122) —
Wireless Design, Inc., a Foreign Corporation,
Plaintiff/Appellant, v. Cell Site Construction
Services, LLC, an Oklahoma Limited Liability
Company, Defendant/Interested Party, and
Midwest Tower Maintenance, LLC, a Foreign
Corporation, Defendant/Appellee. Appeal
from the District Court of Tulsa County, Hon.
Gregory K. Frizzell, Trial Judge. Wireless
Design, Inc. (Wireless) appeals the trial court’s
November 20, 2006, order denying their motion
for new trial. Wireless sought a new trial after
the trial court dismissed Midwest Tower Maintenance, LLC for lack of in personam jurisdiction. This is a companion appeal to Case No.
104,122, which the Court also decides this date.
Based upon our review of the facts and applicable law, we affirm. AFFIRMED. Opinion
Vol. 78 — No. 28 — 10/13/2007
from Court of Civil Appeals, Division IV, by
Goodman, J.; Gabbard, P.J., and Reif, J., concur.
104,122 (companion with No. 104,121) — The
Patterson Company, LLC, an Oklahoma Limited Liability Company, Plaintiff/Appellee, v.
Midwest Tower Maintenance LLC, an Indiana
Limited Liability Company, Defendant/Appellee, and Wireless Design, Inc., a Foreign Corporation, Intervener/Appellant. Appeal from the
District Court of Bryan County, Hon. Mark R.
CampBell, Trial Judge. Wireless Design, Inc.
appeals the trial court’s November 20, 2006,
order denying their motion to intervene. This
is a companion appeal to Case No. 104,121,
which the Court also decides this date. Based
upon our review of the facts and applicable
law, we affirm. AFFIRMED. Opinion from
Court of Civil Appeals, Division IV, by
Goodman, J.; Gabbard, P.J., and Reif, J., concur.
103,966 — Virginia Marie Burmaster, now
Ruffin, Petitioner/Appellee, vs. Timothy Richard Burmaster, Respondent/Appellant. Appeal
from Order of the District Court of Mayes
County, Hon. Gary J. Dean, Trial Judge. Father
appeals from the trial court’s order increasing
his child support obligation based on an income
imputed to Father. After Mother moved to
modify requesting an increase in child support,
Father requested a decrease based on his enrollment in a post-graduate nursing program that
resulted in his leaving full-time employment.
The trial court did not err in considering the
fact that Father had, for several years, paid less
than what was required by the child support
guidelines but had not voluntarily increased
his payments, despite the fact that he had an
increase in income following the parties’
divorce. Even if consideration of this factor
was in error, however, the trial court’s order
increasing support was not an abuse of discretion or against the clear weight of the evidence.
Father’s reliance on Stephen v. Stephen, 1997 OK
53, 937 P.2d 92, is misplaced. The mother’s
decision in the Stephen case to reduce her
employment hours in order to home school her
children worked a definite benefit for the children; whereas Father’s decision in the instant
action to reduce his employment hours not
only fails to benefit his children but is to their
detriment. The trial court’s decision is therefore AFFIRMED. Opinion from Court of Civil
Appeals, Division 4, by Gabbard, P.J.; Goodman, J., and Reif, J., concur.
Vol. 78 — No. 28 — 10/13/2007
104,432 — Statewide General Agency, Inc.,
and Compsource Oklahoma, Petitioners/
Appellants, v. Andrea L. Harden and The
Workers’ Compensation Court and Quest
None, Inc., and Twin City Fire Insurance,
Respondents/Appellees. Employer Statewide
General Agency, Inc. seeks review of the trial
court’s February 26, 2007, order which found
Claimant Andrea Harden’s cumulative trauma
injury occurred while working for Employer.
Employer contends subsequent employers
should be responsible for any work-related
claims, pursuant to 85 O.S.2001 & Supp. 2006,
§ 11(B)(5). Based upon our review of the facts
and applicable law, we sustain the order under
review. SUSTAINED. Opinion from Court of
Civil Appeals, Division IV, by Goodman, J.;
Gabbard, P.J., and Reif, J., concur.
104,655 — In the Matter of C.P., D.P., and M.
P., Deprived Children under the Age of 18
Years. Lacretia Jackson, Natural Mother, Appellant, v. State of Oklahoma, Appellee. Mother
appeals the trial court’s April 19, 2007, order
terminating her parental rights to her three
minor children, C.P., D.P., and M.P. (Children).
Based upon our review, we affirm. AFFIRMED.
Opinion from Court of Civil Appeals, Division
IV, by Goodman, J.; Gabbard, P.J., and Reif, J.,
concur.
ORDERS DENYING REHEARING
(Division No. 1)
104,402 — Pangaea Exploration Corporation,
successor to Mickey J. Overall, Plaintiff/Counter-Defendant/Appellee, v. Sarah Ryland, Marie
Billings, Barbara Ann Gill, Ross Lee Thomas,
Mildred Ellis, Georgia Burlingame, Jacob W.
Blevins, Ruth M. Blevins, Bill Dolan, Barth
Campbell, Denise Campbell, Kevin Campbell,
James Lynn Blevins, Roy Phillip Blevins, Arleta
Gayle Blevins, Steven Ellis Blevins, Michelle
Blevins, David M. Blevins, and John M. Billings,
Defendants/Counter-Plaintiffs/Third-Party
Plaintiffs/Appellants, and Grace Arlene Billings,
Judith Marie Teeple, Elizabeth Billings, and
Phern Billings, Defendants/Counter-Plaintiffs/
Third-Party Plaintiffs, v. Oklahoma Title & Closing Company, Inc. Third-Party Defendant.
Appellee’s Petition for Rehearing filed August 9,
2007 in the above styled and numbered cause is
GRANTED.
2705
CLASSIFIED ADS
SERVICES
SERVICES
Oklahoma Employment Lawyers Association: If you are a Plaintiff’s attorney who occasionally
files employment related lawsuit, join the OELA. Contact Lori Lanon at (405) 235-6100 for information and
check out OELA’s December 14, 2007, seminar: Anatomy of a $60,000,000 verdict. Visit OELA.org.
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.
OFFICE SPACE
MEDICAL MALPRACTICE
Board-certified doctor expert witnesses, all specialties:
$500 flat rate referral. In house case review by veteran
MD specialists, $750 flat rate, opinion letter, no
extra
charge.
Fast,
easy,
safe
since
1998.
www.MedMalExperts.com (888) 521-3601
OF COUNSEL LEGAL RESOURCES — SINCE 1992 —
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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
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
Board Certified
Diplomate — ABFE
Life Fellow — ACFE
Court Qualified
Former OSBI Agent
FBI National Academy
Arthur D. Linville (405) 636-1522
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.
Experts in Economic Damages
Anderson Economic Group, LLC
Antitrust, Business & Asset Valuations, Fairness Opinions,
Franchise Disputes. Economic and Feasibility Studies.
Contact our experts at (214) 219-3939
or www.AndersonEconomicGroup.com
civil appeals, research projects, brief writing, discovery issues & litigation support.
Experienced former federal law clerk will handle state
and federal appeals, draft motions and briefs and assist
in trial preparation. Amy H. Wellington (405) 641-5787,
E-mail: avhw@mindspring.com
2706
NW OKC Office Ste, 1000 SF Newly Decorated, Lg.
Exec Off, Sm Conf, Kitchen with Utility, Parking,
Cleaning, $12 SF. Available 11/1/07 Call: 840-3889 or
(405) 604-7089
OKC-NW (12 lawyers) 14 x 10 ft. offices for rent. Conf.
rooms, copier, fax, kitchen. Referral potential. Great
for new attorneys. (405) 943-8300.
OFFICE FOR RENT - Downtown OKC - NW 4th &
Walker - Share space with three attorneys practicing
family law, criminal defense and personal injury. Free
parking in front. Receptionist, fax, DSL, copier, and
kitchen. Very busy office with referrals available. Flexible arrangements for right person. New attorneys
encouraged to inquire. Call (405) 605-7771.
Rental space available. Downtown OKC location close to court house. All bills paid and free parking. Security alarm activated. Available immediately.
Call Michelle at (405) 476-7102.
LAW OFFICE FOR LEASE in Edmond professional
area, 3186 sq ft. Four large partner’s offices, fully insulated for sound plus 4 medium offices. Lovely reception room, business office, conference room, kitchen
and two bathrooms-one with a shower. Please call (405)
341-9351 to view.
PRESTIGIOUS OKC OFFICE SPACE 4528 N. Classen
Blvd. Reception, Fax, Copier, Telephone System,
Conference Room, Kitchen, parking in front and rear.
Frequent Referrals. Contact J.R. Homsey (405) 524-1011.
POSITIONS AVAILABLE
OKLAHOMA CITY FIRM focusing mainly in personal
injury and criminal law practice seeks associate. Competitive salary. Flexible hours. All contacts will be kept
confidential. Send resume to Box “I,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
Vol. 78 — No. 28 — 10/13/2007
POSITIONS AVAILABLE
POSITIONS AVAILABLE
MID-SIZE OKLAHOMA CITY FIRM; LITIGATION
ASSOCIATE with 1-4 years experience. Prestigious AV
rated law firm seeks self-motivated associates committed to producing high quality work. Evidence of academic excellence is required. Salary above $100,000,
with performance bonus. Send resume, cover letter
outlining previous experience, transcript and references to Box “K,” Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, Oklahoma 73152.
Growing OKC litigation firm committed to
highest quality legal services needs associate with 5 to
7 years experience to handle insurance defense matters.
Must have excellent academic record and references.
Please send resume and writing sample to Box “Z,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, Oklahoma 73152.
Well established AV Rated Oklahoma City
law firm seeks associate attorney with 2-5 years
experience in patent preparation and prosecution.
Undergraduate degree in electrical engineering or
similar discipline preferred. Practical work experience
in engineering is a plus. Please submit resume to Box
“AA,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, Oklahoma 73152
AV RATED DOWNTOWN OKC FIRM is seeking a
litigation attorney with strong research and writing
skills, 2-5 years of experience, and excellent academic
credentials. Submit resume and writing samples in
confidence to: Office Administrator - Elias, Books,
Brown & Nelson, 211 N. Robinson, Suite 1300, 2 Leadership Square, Oklahoma City, Oklahoma 73102-7149.
AV-RATED OKLAHOMA CITY FIRM seeks two attorneys. One should have 2-5 years experience, and must
have excellent writing skills and a strong academic background. The other should have at least 5 years experience, and must have trial experience. Both positions will
emphasize in civil rights, employment law and insurance
defense cases. Please submit resume and salary requirements to Box “D,” Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152.
HARD WORK REWARDED at young, growing, AVrated downtown OKC firm with 8 attorneys. Pignato,
Cooper, Kolker & Roberson, P.C., is seeking two 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 hiring partner, Brad@pclaw.org or
Brad Roberson, 119 North Robinson, Suite 1120,
Oklahoma City, Oklahoma 73102.
ABOWITZ, TIMBERLAKE & DAHNKE, P.C., an AV
rated downtown OKC law firm, is seeking a motivated
lawyer with at least three years experience in civil trial
practice. Applicant should be energetic, write well, and
be willing to devote the time and effort necessary to
provide the best legal services to our clients. Send
Resume to P.O. Box 1937, Oklahoma City, OK 73101.
Vol. 78 — No. 28 — 10/13/2007
INVESTIGATOR POSITION AVAILABLE. Office of the
General Counsel; Oklahoma Bar Association. Seeking
experienced investigator. Bachelor’s degree is preferred. Responsibilities include conducting interviews;
writing reports; preparing subpoenas; taking
statements; conducting complex, sensitive, confidential investigations; assisting in presentation of
investigations; and testifying and assisting prosecutors
in disciplinary proceedings. Knowledge and use of
WordPerfect helpful. Must have good oral and written
communication skills. Submit resume to the Office of
the General Counsel, P.O. Box 53036, Oklahoma City,
OK 73152.
COALGATE FIRM seeks attorney — General
small practice with clients requiring a high service level,
including some nights and weekends. Earnings will
be contingent upon performance with a range of 60K
to six figures. Newly licensed or soon to be licensed
attorneys are encouraged to apply. Send resumes to
resumes@traegray.com.
OKC AV firm seeks associate with 1-5 yrs. experience.
The attorney must be a motivated selfstarter. The position allows an attorney to handle his or her own case
load with supervision. An associate is needed with
experience in insurance subrogation, insurance defense
and workers compensation defense. Deposition experience helpful. Send resume and salary requirements to
box “BB,” Oklahoma Bar Association, P.O. Box 55036,
Oklahoma City, OK 73152.
LEGAL ASSISTANT - Catholic Charities is seeking a
legal assistant for the Immigration Assistance Program.
Applicants must have an Associates Degree or equivalent experience in the legal profession. Bilingual applicants are encouraged to apply. Send cover letter,
resume and salary history to Human Resources, 1501
N. Classen Blvd, Oklahoma City, OK 73106 or by email
to nlargent@catholiccharitiesok.org. EOE
IMMIGRATION ATTORNEY — Catholic Charities, a
leading non profit social service organization, seeks an
attorney to work with clients in the Immigration Assistance Program. Applicants must have a J.D. and be
licensed to practice in the State of Oklahoma. Bilingual
applicants are encouraged to apply. Send cover letter,
resume and salary history to Human Resources, 1501
N. Classen Blvd, Oklahoma City, OK 73106 or by email
to nlargent@catholiccharitiesok.org. EOE
2707
POSITIONS AVAILABLE
RESPECTED SMALL CORPORATE LITIGATION
DEFENSE FIRM 3 years + litigation experience and
knowledge of legal document preparation of motions,
answers, standard pleadings and discovery devices.
Must be familiar with the federal and state courts and
related electronic case filing procedures, and have
strong proofreading and excellent communication skills
and organizational skills. Maintain the attorneys’ calendars and support them in all ways needed. Needs
knowledge in transcribing dictation, typing legal citations, Word Perfect and Word, and type at least 70 wpm.
38 plus Salary entirely dependent upon experience.
Please send resumes to Box “V,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152.
Fenton Fenton Smith Reneau & Moon is an
AV rated defense firm seeking an attorney with 0-3
years experience to assist in its civil litigation department. Please submit a resume, writing sample and
transcript to the Recruiting Coordinator, 211 N. Robinson, Ste. 800N, Oklahoma City, OK 73102.
ASSISTANT UNITED STATES ATTORNEY The United
States Attorney’s Office for the Western District of
Oklahoma is seeking experienced attorneys to fill a
vacancy in its Criminal Division. This position will be
assigned to one of four teams handling counter-terrorism and national security, violent crimes, narcotics trafficking, white collar and public corruption, and other
federal major crimes. Salary is based on the number of
years of professional attorney experience. Trial experience is desirable. Interested applicants should send
their resumes to: Robert J. Troester, First Assistant U.S.
Attorney, U.S. Attorney’s Office, Western District of
Oklahoma, 210 Park Avenue, Suite 400, Oklahoma
City, OK 73102. Applications will be accepted until the
position is filled.
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:
randon Haynie
B
P.O. Box 53036
Oklahoma City, OK 73152
E-mail: brandonh@okbar.org
To get your free
listing on the
OBA’s lawyer
listing service!
Just go to
www.okbar.org
and log into your
myokbar account.
Then, click on the
“Find a Lawyer” Link.
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.
2708
Vol. 78 — No. 28 — 10/13/2007
Vol. 78 — No. 28 — 10/13/2007
2709
OBA/CLE Presents
Intensive Introduction to LLC Law, Tax, and Practice
&
Doing LLC Deals
A Two-day LLC Program
Cosponsored with the OBA Business and Corporate Law Section and the OBA Taxation Law Section
DATES &
LOCATION:
CLE CREDIT:
Tulsa
October 25 & 26, 2007
Crowne Plaza Hotel
100 E. 2nd Street
This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal
Education Commission for 16 hours of mandatory CLE Credit, including .5 hours of ethics for
both days; 8 hours of mandatory CLE credit, including .5 hours of ethics credit for Day I; 8
hours of mandatory CLE credit, including 0 hours of ethics credit for Day II.
TUITION:
$250 (both days), $175 (day one or day two), for early-bird registrations received with payment
at least four full business days prior to the seminar date; $275 (both days) $200 (day one or day
two), for registrations received within four full business days of the seminar date. Register
online at www.okbar.org. No discounts.
CANCELLATION
POLICY:
Cancellations will be accepted at any time prior to the seminar date; however, a $50 fee will be
charged for cancellations made within four full business days of the seminar date. Cancellations,
refunds, or transfers will not be accepted on or after the seminar date.
John M. Cunningham
John M. Cunningham, of the Law Offices of John M. Cunningham, PLLC, Concord, New
Hampshire, is also of counsel at McLane, Graf, Raulerson & Middleton, Professional Association, Manchester,
New Hampshire. His practice focuses on LLC formations and conversions. Mr. Cunningham is the author of
Drafting Limited Liability Company Operating Agreements, the leading LLC form book and practice manual in
the United States. He teaches LLC seminars at Franklin Pierce Law Center in Concord and nationwide in
public forums, including bar associations and CPA societies, and in-house to legal and accounting firms. Mr.
Cunningham’s previous LLC seminars for members of the Oklahoma Bar Association have received high
evaluations.
DAY ONE
This seminar will provide:
•
A detailed introduction to LLC statutory law with special reference to the Oklahoma Limited
Liability Company Act
•
Guidelines for choosing among LLCs and non-LLC entities in entity formations
•
An intensive overview of the LLC formation process
•
A plain-English introduction to LLC taxation
•
Ethical Guidelines in representing two or more clients in an LLC formation
Seminar materials will include model operating agreements under the Oklahoma LLC Act for single-and multimember LLCs and extensive LLC formation practice checklists.
Intensive Introduction to LLC Law, Tax, and Practice
Program Topics:
2710
•
The LLC form ation process
•
LLC statutory and case law
•
The Oklahom a LLC Act
•
Non-tax choice of entity
•
The 22 professional tasks that
lawyers should handle in LLC
form ations
•
Ethical issues in sim ultaneously
representing two or m ore clients in
an LLC form ation (ethics)
•
Federal incom e taxation of LLCs applying the Check-the-Box
Regulations in LLC form ations
•
Social Security taxation of LLC
m em bers
•
Tax choice of entity - choosing
the best federal incom e tax
regim en for an LLC
Vol. 78 — No. 28 — 10/13/2007
8:30 a.m.
Registration and Continental
Breakfast
9:00
10:20
Program
Ten-minute break
12:00 p.m. Lunch (included in registration)
12:30
Program
2:20
Ten-minute break
4:30
Adjourn
Day Tw o
Doing LLC Deals
Seminar Overview:
In the morning session of this intensive one-day seminar, Mr. Cunningham will address critical business
organization law issues, including fiduciary and buy-sell issues, that typically arise in LLC formations, and he
will address the use and abuse of model operating agreements in handling these formations. The basis for the
session will be a 33-section model operating agreement specifically tailored under the Oklahoma Limited
Liability Company Act for manager-managed, multi-member LLCs.
In the afternoon session, Mr. Cunningham will discuss key LLC cases that lawyers should know as a basis for
advising clients in LLC formations and operations and litigating LLC disputes among members with third
parties.
Seminar materials will include model operating agreements under the Oklahoma LLC Act for single- and multimember LLCs and extensive LLC formation practice checklists.
Program Topics:
• Introduction: the key role of LLC forms in LLC
formation practice
• Number of forms lawyers need for their LLC
formation practice
• Components of a good LLC operating
agreement in an LLC deal
• Components of a good LLC model operating
agreement
• Components of a good set of LLC model
operating agreements
• Keys substantive issues in LLC deals
• Use of planning memos in LLC deals
• Introduction to business entity restructuring
practice
• Statutory conversions of corporations to LLCs federal tax issues and Oklahoma legal issues
8:30 a.m. Registration and Continental
Breakfast
12:00 p.m. Lunch (included in registration)
9:00
10:20
Program
Ten-minute break
12:30
Program
2:20
Ten-minute break
4:30
Adjourn
Intensive Introduction to LLC Law ,
Tax and Practice
&
Full Name____________________________________________________
Doing LLC Deals
Firm ________________________________________________________
Address _____________________________________________________
G Both days, $250
G Day I, $175
G Day II, $175
City ______________________________
Phone (
State ________Zip_________
) _______________________
Are you a Member of OBA?  Yes  No
E - Mail _____________
OBA Bar#________________
For  Visa or  Master Card Fax (405) 416-7088, Phone or Mail
Register online at www.okbar.org/cle •(405) 416-7006
Credit Card#
Exp.date___________
Vol. 78 — No. 28 — 10/13/2007
2711
Oklahoma’s New Immigration Law
An OBA/CLE Webcast Seminar
DATE:
TIM E:
LOCATION:
October 17, 2007
9:00 a.m .
Your choice - any place w ith a com puter!
CLE CREDIT:
This course has been approved by the Oklahom a Bar Association Mandatory Continuing
Legal Education Com m ission for 3 hours of m andatory CLE Credit, including 0 hours of
ethics. This is considered live MCLE sem inar credit, not online sem inar MCLE credit.
Questions? Call (405) 416-7006.
TUITION:
$150. No discounts. Register online at www.legalspan.com /okbar/webcasts.asp
CANCELLAT IO N
POLICY:
Cancellations, discounts, refunds, or transfers will not be accepted.
This bill will greatly change the responsibility of em ployers in Oklahom a. Fam iliarity with Oklahom a Taxpayer
and Citizen Protection Act of 2007 is essential for every attorney who deals with em ployers or em ployees in
Oklahom a.
PROGRAM :
9:00 a.m .
Oklahom a’s New Im m igration Law
Am ir Farzaneh, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahom a City
9:50
Break
10:00
Oklahoma’s New Im m igration Law (Continued)
Am ir Farzaneh
10:50
Break
11:00
A Panel Discussion - Includes answers to questions em ailed during webcast
M oderator
Shirley Cox, Oklahom a Departm ent of Hum an Services, Oklahom a City
Panelists
Am ir Farzaneh
Representative Randy Terrill, District 53, Oklahom a House of Representatives,
Moore
Representative Richard M orrissette, District 92, Oklahom a House of
Representatives, Oklahom a City (tentative)
11:50
Adjourn
Register online at w w w .legalspan.com /okbar/w ebcasts/asp

Court Material - Oklahoma Bar Association

Transcription

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