Volume 84 No. 15 May 25, 2013

Transcription

Volume 84 u No. 15 u May 25, 2013
1090
The Oklahoma Bar Journal
Vol. 84 — No. 15 — 5/25/2013
OFFICERS & BOARD OF GOVERNORS
James T. Stuart, President, Shawnee
Renée DeMoss, President-Elect, Tulsa
Dietmar K. Caudle, Vice-President, Lawton
Cathy M. Christensen, Immediate Past President,
Oklahoma City
Sandee Coogan, Norman
Gerald C. Dennis, Antlers
Robert S. Farris, Tulsa
Robert D. Gifford II, Oklahoma City
Kimberly Hays, Tulsa
Douglas L. Jackson, Enid
O. Chris Meyers II, Lawton
D. Scott Pappas, Stillwater
Nancy S. Parrott, Oklahoma City
Bret A. Smith, Muskogee
Richard D. Stevens, Norman
Linda S. Thomas, Bartlesville
Joseph M. Vorndran, Shawnee,
Chairperson, OBA/Young Lawyers Division
BAR Center Staff
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Director of Management Assistance Program;
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Manni Arzola, Debbie Brink, Emily Buchanan,
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EDITORIAL BOARD
Editor in Chief, John Morris Williams, News
& Layout Editor, Carol A. Manning, Editor,
Melissa DeLacerda, Stillwater, Associate Editors:
Dietmar K. Caudle, Lawton; Sandee Coogan,
Norman; Emily Duensing, Tulsa; Pandee
Ramirez, Okmulgee; Mark Ramsey,
Claremore; Judge Megan Simpson, Buffalo;
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Welch, Oklahoma City; January Windrix, Poteau
events Calendar
MAY 2013
27
OBA Closed – Memorial Day Observed
28
OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact
Barbara Swinton 405-713-7109
29
OBA Communications Committee joint meeting with Law Day
Committee; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa
County Bar Center, Tulsa; Contact Dick Pryor 405-740-2944 or
Richard Vreeland 405-360-6631
OBA Legal Intern Swearing-In Ceremony; 1:30 p.m.; Judicial Center,
Oklahoma City; Contact Wanda Reece-Murray 405-416-7042
JUNE 2013
4
OBA Government and Administrative Law Practice Section
meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Gary Payne
405-297-2413
5-6
Sovereignty Symposium; 7:30 a.m.; Skirvin Hilton Hotel, 1 Park Ave.,
Oklahoma City; Contact Julie Rorie 405-556-9371
6
OBA Member Services Committee meeting; 4 p.m.; Oklahoma Bar
Center, Oklahoma City with teleconference; Contact Sarah Schumacher
405-752-5565
OBA Lawyers Helping Lawyers discussion group meeting; 6 p.m.;
Office of Tom Cummings, 701 NW 13th St., Oklahoma City; RSVP to
Kim Reber kimreber@cabainc.com
OBA Lawyers Helping Lawyers discussion group meeting; 7 p.m.;
University of Tulsa College of Law, John Rogers Hall, 3120 E. 4th Pl.,
Rm. 206, Tulsa; RSVP to Kim Reber kimreber@cabainc.com
7
OBA Board of Editors meeting; 10 a.m.; Oklahoma Bar Center,
Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Carol Manning
405-416-7016
OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma
Bar Center, Oklahoma City with teleconference; Contact Suzanne Heggy
405-556-9612
For more events go to www.okbar.org/calendar
The Oklahoma Bar Association’s official website:
www.okbar.org
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Vol. 84 — No. 15 — 5/25/2013
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Oklahoma Bar Association
table of
contents
May 25, 2013 • Vol. 84 • No. 15
page
1091 Events Calendar
1094 Index to Court Opinions
1095 Court of Civil Appeals Opinions
1109 In Memoriam
1111Judicial Nominating Commission
Election Candidates
1114
Sovereignty Symposium 2013
1118
Disposition of Cases Other Than by Publication
Vol. 84 — No. 15 — 5/25/2013
1093
Index to Opinions of Court of Civil Appeals
2013 OK CIV APP 42 THE CITY OF OKLAHOMA CITY, Plaintiff, vs. FIRST AMERICAN
TITLE & TRUST COMPANY, Defendant/Cross-Defendant/Appellee, and BURNS
PAVING COMPANY, Defendant/Cross-Plaintiff/Appellant, and FIRST AMERICAN
TITLE & TRUST COMPANY, Third Party Plaintiff, vs. METHVIN ENTERPRISES,
INC., an Oklahoma corporation, and JERL METHVIN, individually, Third Party
Defendants, and DPC INVESTMENTS, LLC, Intervenor. Case No. 110,268............................ 1095
2013 OK CIV APP 40 HSRE-PEP I, LLC, a Delaware limited liability company, substituted
as Plaintiff for FIRST UNITED BANK AND TRUST CO., an Oklahoma banking association, Plaintiff/Appellee, vs. HSRE-PEP CRIMSON PARK LLC, a Delaware limited
liability company, substitute as Defendant for FIRST UNITED PROPERTY HOLDING COMPANY, LLC, SERIES B, a series of First United Property Holding, LLC, an
Oklahoma limited liability company; BENEFIT BANK, Frisco Branch; AIRTIME
INC., an Oklahoma corporation; MITCHELL GEE, an individual; SAUNDRA
DESELMS, Treasurer for Cleveland County, Oklahoma; and the BOARD OF COUNTY COMMISSIONERS OF CLEVELAND COUNTY, OKLAHOMA, Defendants, and
BENEFIT BANK, Plaintiff/Appellant, vs. ADUDDELL DEVELOPMENT GROUP,
LLC; ODG-OU, LLC; FIRST UNITED BANK & TRUST CO.; FIRST UNITED PROPERTY HOLDING COMPANY, LLC, SERIES B, a series of First United Property Holding Company, LLC; MITCHELL GEE d/b/a AIRTIME, INC.; GARY D. BROOKS;
KENNY W. THOMAS; DAVID W. ADUDDELL; and J. GLENN RANKIN, Defendants. Case No. 109,777; Comp. w/110,288................................................................................... 1098
2013 OK CIV APP 41 Terry B. Noble and Cynthia N. Noble, Plaintiffs, vs. JERRY BOYD
NOBLE, Defendant/Appellant, RONALD DEAN DAYTON and COREY WAYNE
DAYTON, Appellees. Case No. 110,176.......................................................................................... 1101
2013 OK CIV APP 43 GUSTAVO LOPEZ and VALERIE LOPEZ, Plaintiffs/Appellants, vs.
TODD B. ROLLINS; KATHERINE ANN ROLLINS; TODD B. ROLLINS LIVING
TRUST; KATHERINE A. ROLLINS LIVING TRUST; NEWPORT APPRAISAL CO.,
INC.; McGRAW DAVISSON STEWART, LLC; WALTER & ASSOCIATES, INC.;
LAURA HAWKINS; and BLAKE LOVELESS, Defendants/Appellees. Case No.
110,755.................................................................................................................................................. 1103
1094
Vol. 84 — No. 15 — 5/25/2013
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)
2013 OK CIV APP 42
THE CITY OF OKLAHOMA CITY, Plaintiff,
vs. FIRST AMERICAN TITLE & TRUST
COMPANY, Defendant/Cross-Defendant/
Appellee, and BURNS PAVING COMPANY,
Defendant/Cross-Plaintiff/Appellant, and
FIRST AMERICAN TITLE & TRUST
COMPANY, Third Party Plaintiff, vs.
METHVIN ENTERPRISES, INC., an
Oklahoma corporation, and JERL
METHVIN, individually, Third Party
Defendants, and DPC INVESTMENTS, LLC,
Intervenor.
Case No. 110,268. October 11, 2012
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE BARBARA G. SWINTON,
JUDGE
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS
Mark W. Kuehling, KUEHLING SEXSON, P.C.,
Oklahoma City, Oklahoma, for Defendant/
Cross-Defendant/Appellee,
J. Kelly Work, Oklahoma City, Oklahoma, for
Defendant/Cross-Plaintiff/Appellant.
Kenneth L. Buettner, Presiding Judge:
¶1 Defendant/Cross-Plaintiff/Appellant
Burns Paving Company (Subcontractor) appeals from summary judgment granted in
favor of Defendant/Cross-Defendant/Appellee First American Title & Trust Company
(Surety). After Plaintiff, the City of Oklahoma
City (Obligee), filed suit to recover on a subdivision bond given by Surety for Third-Party
Defendant Methvin Enterprises, Inc. (Principal), Subcontractor and Surety litigated whether Subcontractor was entitled to payment on
the bond from Surety. The summary judgment
record shows Surety claims alterations to a
subcontract exonerated its bond covering an
agreement between Principal and Obligee. The
rules on exoneration of a bond apply where a
contract between a principal and obligee has
been altered. Surety was not exonerated from
Vol. 84 — No. 15 — 5/25/2013
liability by alterations to a subcontract between
Principal and Subcontractor. Disputes of material fact as to liability of the various parties are
unresolved. We reverse and remand for further
proceedings.
¶2 This case involves a dispute over a surety’s liability on a subdivision bond. Obligee
sued Surety and Subcontractor, alleging Obligee approved Surety’s subdivision bond for
construction of paving and storm sewer improvements in Principal’s “Rio De Bella Section Two”
residential subdivision in Oklahoma City. The
bond was given to secure Obligee’s approval of
the final plat. There is no dispute that Obligee
acted within its statutory authority in conditioning approval of Principal’s subdivision plat on a
bond to ensure completion of paving and storm
sewers. 11 O.S.2011 §47-114(B).1 Principal contracted with Subcontractor to complete the paving and storm sewer improvements. Obligee
alleged Subcontractor did not complete the job
and Principal failed to complete the improvements by the bond’s two year deadline.
¶3 Obligee alleged Surety ignored its demand
that it pay the amount necessary to complete
the improvements, which Obligee asserted was
$254,607.75. Obligee maintained it would not
release the bond until all necessary work was
completed and all bills paid. Obligee asserted a
cause of action for breach of contract against
Surety.
¶4 Subcontractor answered and admitted
Obligee’s claims, but contended it did not complete the work because it was not being paid.
Subcontractor made a cross-claim against Surety for payment under the bond.
¶5 Surety answered and denied Obligee’s
claims. Surety included a Third-Party Petition
against Principal, in which it alleged Principal
had agreed to indemnify it for any funds it
paid as surety. Surety denied Subcontractor’s
cross-claim, arguing Subcontractor had been
paid in full and that the bond was exonerated.
Surety cross-claimed against Subcontractor,
alleging Subcontractor failed to complete the
job in a workmanlike manner. Surety demand-
1095
ed Subcontractor pay to have the defective
paving repaired or replaced.
Surety and certified the decision for immediate
review pursuant to 12 O.S.2001 §994(A).
¶6 Subcontractor denied Surety’s cross-claim.
Subcontractor filed its Motion for Summary
Judgment August 11, 2011. Subcontractor
included 23 undisputed facts which it argued
showed it was entitled to judgment as a matter
of law.2 Subcontractor argued that Surety’s
bond was not exonerated because of an indemnification agreement between Surety and
Principal,3 because Subcontractor did not
extend the time for payment under its contract
with Principal, and because Surety was compensated for the bond. Subcontractor additionally contended that its acceptance of notes and
mortgages from Principal was not an accord
and satisfaction, that Subcontractor was entitled to recover interest from Surety, that Obligee’s issuing building permits and certificates
of occupancy did not impair Surety’s position,
and that Surety acted in bad faith towards Subcontractor.
¶10 Summary judgment proceedings are
governed by Rule 13, Rules for District Courts,
12 O.S.2011, Ch. 2, App.1. Summary judgment
is appropriate where the record establishes no
substantial controversy of material fact and the
prevailing party is entitled to judgment as a
matter of law. Brown v. Alliance Real Estate
Group, 1999 OK 7, 976 P.2d 1043, 1045. Summary judgment is not proper where reasonable
minds could draw different inferences or conclusions from the undisputed facts. Id. Further,
we must review the evidence in the light most
favorable to the party opposing summary
judgment. Vance v. Fed. Natl. Mortg. Assn., 1999
OK 73, 988 P.2d 1275.
¶7 Surety filed a Cross-Motion for Summary
Judgment September 9, 2011.4 Surety argued
that although there were issues of fact regarding
the amount and quality of Subcontractor’s work,
summary judgment in favor of Surety was nevertheless required based on its claim the bond
was exonerated. Surety contended the bond was
exonerated because Subcontractor and Principal
altered their subcontract by extending the date
payments were due and Subcontractor accepting partial payments, Subcontractor allowing its
mechanic’s and materialmen’s lien to lapse,
Subcontractor and Principal agreeing to add
interest to amounts not paid, Subcontractor
accepting a note and mortgage from Principal,
and Subcontractor releasing the mortgage, all
without Surety’s consent.
¶11 The parties agree Principal was unable to
complete the project after it became insolvent.
Subcontractor alleges it stopped work after
Principal stopped paying. The only issue presented in this appeal is whether Surety’s liability under the bond was exonerated by alterations to the subcontract between Subcontractor
and Principal.6
A bond to be valid, like any other contract,
requires at least two contracting parties,
one called the “obligor” and the other the
“obligee.” More specifically, there must be
an obligor, who is bound to do what it is
agreed shall be done, and an obligee, who
must be a natural or artificial person, whom
the law recognizes as being the subject of
rights, and who can, if there is a default,
enforce the obligation against the obligor.
¶8 Subcontractor filed its Reply September
23, 2011. Subcontractor repeated its arguments
that its actions did not exonerate the bond and
that its performance was approved (but not
accepted) by Obligee.
11 C.J.S. Bonds § 7. In this case, Principal is the
obligor and the City is the obligee. “A suretyship is the result of a three-party agreement,
whereby one party (the surety) becomes liable
for the principal’s or obligor’s debt or duty to
the third party obligee, Both the obligor-principal . . . and the surety are liable to the obligee…,
and no suretyship exists in the absence of any
of the three parties.” Balboa Ins. Co. v. U.S. 775
F.2d 1158, 1160 (Fed.Cir.1985).
¶9 Following a hearing, the trial court issued
its Journal Entry of Summary Judgment December 12, 2011. The court denied Subcontractor’s
Motion for Summary Judgment and granted
Surety’s Cross-Motion for Summary Judgment.
The court reserved Surety’s cross-claims against
Subcontractor and Subcontractor’s defenses
thereto.5 The court directed that its judgment
determined all of Subcontractor’s claims against
¶12 Surety contends its liability on the bond
was exonerated by the conduct of Principal
and Subcontractor in changing the subcontract.
A surety is exonerated either by the principal
performing the obligation, or by conduct of the
principal which prejudices the surety.7 As
shown in the cases on which Surety relies,
exoneration may be found where a principal
and obligee change their contract.8
1096
Vol. 84 — No. 15 — 5/25/2013
A surety is ordinarily discharged from
liability after the principal contract or the contract of suretyship is materially altered, without
the surety’s knowledge or consent.
Since a surety has the right to rely on
the terms of the suretyship contract, the
surety is discharged, if, without the surety’s knowledge or consent, any material
alteration is made in the suretyship contract or the principal contract or obligation. This is because the parties to the
underlying contract may not unilaterally
increase the surety’s liability.
72 C.J.S., Principal and Surety, §114 (footnotes
omitted, emphasis added).
¶13 However, in this case, Surety complains
of changes to the subcontract between Principal and Subcontractor and bases its claim for
exoneration on those changes. Exoneration will
be found only where there are material changes
to the principal contract or the contract of suretyship. In this case, Surety could claim exoneration only if it showed changes in Principal’s
contract with Obligee or changes in the bond
agreement. Surety has not asserted either of
these.
¶14 While Surety has cited many cases stating the rule that alteration of the underlying
agreement will exonerate a surety, it has not
cited authority allowing exoneration based on
changes to a contract other than the underlying
agreement on which the bond was made. The
reason for the rule, to protect a surety from
exposure to a different risk than it agreed to, is
not implicated here.
¶15 The summary judgment record shows
the bond was not exonerated by the acts
alleged. The record nevertheless shows disputes of material fact as to the liability of the
various parties. We therefore REVERSE AND
REMAND for further proceedings.
JOPLIN, V.C.J., and GOREE, J., concur.
1. Section 114 provides, in pertinent part (emphasis added):
A. Before the commission may exercise jurisdiction over subdivision of
land, it shall adopt regulations governing the subdivision of land
within its jurisdiction. . . .
B. The regulations on subdivision of land may include provisions as to
the extent to which streets and other ways shall be graded and
improved and to which water and sewer and other utility mains, piping or other facilities shall be installed as a condition precedent to the
approval of the plat. The regulations or practice of the commission
may provide for a tentative approval of the plat previous to such
installation; but any such tentative approval shall be revocable for
failure to comply with commitments on which the tentative approval
was based, and shall not be entered on the plat. In lieu of the completion
of any improvements and utilities prior to the final approval of the plat, the
commission may accept an adequate bond satisfactory to the commission, with
Vol. 84 — No. 15 — 5/25/2013
surety, to secure to the municipality the actual construction and installation
of the improvements or utilities at a time and according to specifications fixed
by or in accordance with the regulations of the commission, and further conditioned that the Principal will pay for all material and labor entering into the
construction of the improvements. The municipality is hereby granted the
power to enforce such bond by all appropriate legal and equitable
remedies.
***
2. Summarized, Subcontractor asserted it was undisputed that
Subcontractor furnished labor, equipment, and materials for paving
and sewer improvements pursuant to a June 4, 2007 contract with
Principal; the work was approved by Obligee, but $187,087 in principal
and $69,911.20 in interest remained due and owing for Subcontractor’s
work. Surety’s subdivision bond, approved by Obligee, required Principal to pay all bills incurred in completion of the improvements. The
$517,297.16 bond gave Principal two years from May 8, 2007 to complete the improvements and pay subcontractors. When Principal was
unable to make monthly payments, it agreed to pay interest to Subcontractor on the unpaid balance. Subcontractor filed a mechanic’s and
materialmen’s lien statement July 31, 2008 and Surety was aware of the
lien claim because Surety issued checks for partial payment to Subcontractor. When the lien statement was about to expire, Subcontractor
received a note and mortgage, to secure the debt owed, from Principal
July 17, 2009. The note was payable on demand but the note and mortgage were subsequently rescinded without being paid. Surety and
Principal agreed to the bond March 14, 2007 and Surety received payment of $5,172.97 for issuing the bond. Subcontractor made demand
on Obligee to enforce the bond February 8, 2010 and Obligee made
demand on Surety October 7, 2010. Surety refused to pay and contended obligee issued building permits and certificates of occupancy,
which impaired Surety’s position.
3. Subcontractor relied on 15 O.S.2011 § 338, which provides:
A guarantor is exonerated, except so far as he may be indemnified by
the principal, if by any act of the creditor, without the consent of
the guarantor, the original obligation of the principal is altered in
any respect, or the remedies or rights of the creditor against the
principal, in respect thereto, in any way impaired or suspended.
Nothing in the record indicates Surety was indemnified. Subcontractor
contends an indemnity agreement is sufficient to satisfy this statute.
We find the bond was not exonerated, but for different reasons,
explained below.
4. Surety disputed some of Subcontractor’s fact statements. Surety
asserted Subcontractor’s work was not approved by Obligee and that
Obligee required repair and replacement of a substantial part of the
work performed by Subcontractor. Surety asserted also that Subcontractor was paid for its work because it accepted a note and mortgage
from Principal for the amount due. Surety asserted also that Subcontractor is responsible for the cost of correcting the defects in its work,
which Surety contended exceeded the amount Subcontractor claimed
to be owed. Surety later asserted Subcontractor was not entitled to any
payment because it altered the original obligation by adding $70,000 in
interest which materially altered Surety’s obligation as surety. Finally,
Surety denied it was liable to Subcontractor under the bond.
Surety included a statement of additional material facts, including
that Surety executed the bond for $527,297.16, which represented an
engineer’s estimate plus 10%; Surety did not know Principal and Subcontractor entered an agreement to do the work for $226,858.80 more
than the engineer’s estimate; Subcontractor agreed to complete all the
improvements within 75 days and Surety reasonably expected that all
improvements would be completed by fall 2007, and Surety did not
receive notice of any problem until 2010; Subcontractor made no claim
for payment under the bond until February 8, 2010, after the housing
market had deteriorated and Principal was in bankruptcy; in spring
2008, Subcontractor and Principal modified their contract by Subcontractor agreeing to accept partial payments upon the sale of lots;
Surety did not consent to alteration of the subcontract between Subcontractor and Principal; Subcontractor accepted a note and mortgage
from Principal July 17, 2009 as payment of the amount due but Subcontractor continued to accept partial payment from the sale of lots;
Surety did not consent to a release of the mortgage or rescission of the
note, and Subcontractor did not return the benefits it had received
under the note; Subcontractor’s work was defective and Obligee
demanded that Surety remove and replace improvements made by
Subcontractor; and Subcontractor is responsible for repairing and
replacing the work required by Obligee.
5. Surety dismissed its cross-claim without prejudice January 18,
2012.
6. As noted above, Surety’s claim that Subcontractor’s work was
defective was reserved by the trial court and later dismissed by Surety.
7. “A surety is one who, at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the perfor-
1097
mance by the latter of some act in favor of a third person, or hypothecates property as security therefor.” 15 O.S.2011 §371. Although the
parties have cited authority applicable to sureties and guarantors, First
American acted as a surety in this case. 15 O.S.2011 §376 provides:
Performance of the principal obligation, or an offer of such performance duly made as provided in this chapter exonerates a
surety.
15 O.S.2011 §377 provides:
A surety is exonerated:
1. In like manner with a guarantor.
2. To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the
surety or inconsistent with his rights, or which lessens his security; or,
3. To the extent to which he is prejudiced by an omission of the
creditor to do anything, whe n required by the surety, which it is
his duty to do.
15 O.S.2011 §338 provides (emphasis added):
A guarantor is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without the consent
of the guarantor, the original obligation of the principal is altered in
any respect, or the remedies or rights of the creditor against the
principal, in respect thereto, in any way impaired or suspended.
8. For example, in First Enterprise Bank v. Be-Graphic, Inc., 2006 OK
CIV APP 141, 149 P.3d 1064, the Oklahoma Court of Civil Appeals
noted the issue was whether the defendant had waived the statutory
exoneration provisions (15 O.S.2001 §338 and §377) “which exonerates
a surety from liability if the creditor alters the original obligation without
the surety’s consent.” (Emphasis added.) Surety also relies on Evatt v.
Dulaney, 1915 OK 580, 151 P. 607, 51 Okla. 81, but in that case, the court
explained that the surety was exonerated as a result of changes to the
terms of payment included in the surety’s undertaking. In Whale v.
Rice, 1935 OK 838, 49 P.2d 737, 741, 173 Okla. 530, the court noted “the
liability of the surety must be tested by determining whether the
assignment constituted an alteration of the terms of the surety contract,
….” (Emphasis added.)
2013 OK CIV APP 40
HSRE-PEP I, LLC, a Delaware limited
liability company, substituted as Plaintiff for
FIRST UNITED BANK AND TRUST CO.,
an Oklahoma banking association, Plaintiff/
Appellee, vs. HSRE-PEP CRIMSON PARK
LLC, a Delaware limited liability company,
substitute as Defendant for FIRST UNITED
PROPERTY HOLDING COMPANY, LLC,
SERIES B, a series of First United Property
Holding, LLC, an Oklahoma limited liability
company; BENEFIT BANK, Frisco Branch;
AIRTIME INC., an Oklahoma corporation;
MITCHELL GEE, an individual; SAUNDRA
DESELMS, Treasurer for Cleveland County,
Oklahoma; and the BOARD OF COUNTY
COMMISSIONERS OF CLEVELAND
COUNTY, OKLAHOMA, Defendants, and
BENEFIT BANK, Plaintiff/Appellant, vs.
ADUDDELL DEVELOPMENT GROUP,
LLC; ODG-OU, LLC; FIRST UNITED BANK
& TRUST CO.; FIRST UNITED PROPERTY
HOLDING COMPANY, LLC, SERIES B, a
series of First United Property Holding
Company, LLC; MITCHELL GEE d/b/a
AIRTIME, INC.; GARY D. BROOKS;
KENNY W. THOMAS; DAVID W.
1098
ADUDDELL; and J. GLENN RANKIN,
Defendants.
Case No. 109,777; Comp. w/110,288
February 8, 2013
CLEVELAND COUNTY, OKLAHOMA
HONORABLE TRACY SCHUMACHER,
JUDGE
AFFIRMED
Rob F. Robertson, GABLE GOTWALS, Oklahoma City, Oklahoma, for Plaintiff/Appellee
HSRE-PEP I, LLC,
Lyle R. Nelson, ELIAS, BOOKS, BROWN &
NELSON, P.C., Oklahoma City, Oklahoma, for
Defendant/Appellant Benefit Bank.
¶1 Appellant/Defendant Benefit Bank
appeals from the trial court’s order granting
summary judgment in favor of Appellee/
Plaintiff HSRE-PEP I, LLC (HSRE). In this commercial mortgage foreclosure action, the trial
court determined HSRE’s mortgage lien was
superior to Benefit Bank’s mortgage lien. After
de novo review, we hold HSRE’s mortgage has
first priority. Therefore, HSRE is entitled to
judgment as a matter of law, and the trial
court’s order is AFFIRMED.
¶2 On February 4, 2008, First United Bank
and Trust Company (First United) loaned
ODG-OU $25,768,000.00 for an apartment complex in Norman, Oklahoma. The loan was
secured by a first mortgage. On June 8, 2008,
ODG-OU borrowed $1,350,000.00 from Benefit
Bank. Benefit Bank’s loan was secured by a second mortgage in the apartment complex. ODGOU defaulted on the First United loan. First
United and ODG-OU entered into a settlement
agreement June 3, 2010. The settlement agreement provided that First United or its designee
would accept a special warranty deed to the
apartment complex as full and complete settlement for payment of the note, thereby releasing
ODG-OU from any and all in personam liability,
and that First United would not pursue any in
personam liability against ODG-OU in the event
of a future foreclosure action.
¶3 Under the terms of the settlement agreement, ODG-OU was to concurrently execute
and deliver a “Special Warranty Deed conveying fee simple title to the [apartment complex]
to [First United] or its designee (the ‘Special
Vol. 84 — No. 15 — 5/25/2013
Warranty Deed’), subject to those matters listed
on Exhibit ‘A’ attached hereto and made a part
hereof (the ‘Permitted Title Exceptions’).” The
“Permitted Title Exceptions” listed in Exhibit A
included, inter alia, Benefit Bank’s mortgage, a
financing statement made by ODG-OU to Benefit Bank, a mechanic’s lien, a right-of-way
agreement, and an agreement for a cross-access
driveway easement. The issue on appeal surrounds the language “subject to those matters
listed on Exhibit A” in the settlement agreement between ODG-OU and First United. First
United designated First United Property Holding Company, LLC, Series B (FUPHC-B) to
receive the Special Warranty Deed from ODGOU. The Special Warranty Deed conveying title
to the apartment complex to FUPHC-B, subject
to easements, restrictive covenants, rights-ofway of record, zoning ordinances, First United’s mortgage, and a financing statement made
by ODG-OU to FUPHC-B, was delivered to
FUPHC-B. At that point, First United held the
note and mortgage and FUPHC-B owned the
apartment complex.
¶4 First United filed a petition to foreclose
against FUPHC-B a few weeks later. Benefit
Bank filed a foreclosure action against FUPHC-B
the same day. The cases were consolidated by
the trial court.1 On August 6, 2010, First United
sold the note and mortgage to HSRE. FUPHC-B
conveyed the property to HSRE-PEP Crimson
Park LLC (Crimson Park) through a special
warranty deed the same day. On November 3,
2010, the trial court filed an order substituting
parties HSRE for First United and Crimson
Park for FUPHC-B. HSRE is currently the
holder of the note and mortgage, and Crimson
Park owns the apartment complex.
¶5 HSRE and Benefit Bank both filed motions
for partial summary judgment, each asserting
its mortgage had first priority. HSRE asserts
that it is undisputed its loan is secured by a
first mortgage in the apartment complex. HSRE
argues First United did not lose first priority
when ODG-OU conveyed title to the apartment complex to First United’s designee,
FUPHC-B. HSRE claims that under the terms
of the settlement agreement, ODG-OU was
released from in personam liability, but First
United retained its in rem claim against the
property. HSRE argues the language “subject
to those matters listed on Exhibit A” recognized other liens against the property but did
not subordinate the first mortgage.
Vol. 84 — No. 15 — 5/25/2013
¶6 Benefit Bank argues that because First
United’s designee FUPHC-B received a deed in
lieu of foreclosure “subject to” its junior lien,
First United waived its right to foreclose. Benefit Bank relies on comment b and illustration 6
of the Restatement (Third) of Property § 8.5
Mortgages (1997) to support its argument that
First United waived its right to foreclose by
accepting the deed in lieu of foreclosure.2 Comment b provides, in pertinent part, that “[t]he
mortgagee-grantee will also be deemed to have
waived the right to foreclose when it accepts
title to the mortgaged real estate with actual
knowledge of the junior lien.” Id. cmt. b, illus.
6. Illustration 6 describes the situation where
Mortgagor borrows money from Mortgagee-1
and gives Mortgagee-1 a promissory note
secured by a mortgage on Blackacre. The mortgage is immediately recorded. Mortgagor then
borrows money from Mortgagee-2 and gives
Mortgagee-2 a promissory note secured by a
mortgage on Blackacre. The latter mortgage is
immediately recorded. Mortgagor defaults on
the obligation secured by Mortgagee-1’s mortgage. As part of an agreement between Mortgagor and Mortgagee-1, Mortgagor agrees to
deliver to Mortgagee-1 a deed to Blackacre, in
return for which Mortgagee-1 releases Mortgagor from liability for the balance on the
mortgage obligation. Pursuant to the agreement,
a deed to Blackacre is delivered to Mortgagee-1.
Prior to Mortgagor’s conveyance to Mortgagee-1, the latter has actual knowledge of the existence of Mortgagee-2’s mortgage. Mortgagee-1’s
mortgage is ineffective against Mortgagee-2, and
Mortgagee-1 will not be permitted to foreclose it
to eliminate Mortgagee-2’s lien. Benefit Bank
also relies on the Reporter’s Note that “[e]ach
time a deed in lieu transaction is negotiated with
the understanding that the mortgagee will
acquire title subject to junior liens, the senior
mortgagee has waived its right to eliminate
those liens.” Id. (quoting Ann M. Burkhart, Freeing Mortgages of Merger, 40 Vand. L. Rev. 238,
348-349 (1987)). Benefit Bank suggests that
because First United had knowledge of Benefit
Bank’s junior lien, First United should have initiated foreclosure proceedings rather than accept
a deed in lieu of foreclosure.
¶7 The trial court determined it was not the
intent of the parties to the settlement agreement to subordinate First United’s first mortgage to Benefit Bank’s second mortgage. The
trial court entered summary judgment in favor
of HSRE. Benefit Bank appeals.
1099
¶8 Summary judgment proceedings are governed by Rule 13, Rules for District Courts, 42
O.S.2001, Ch. 2, App.1. Summary judgment is
appropriate where the record establishes no
substantial controversy of material fact and the
prevailing party is entitled to judgment as a
matter of law. Brown v. Alliance Real Estate
Group, 1999 OK 7, ¶ 7, 976 P.2d 1043, 1045.
Where the facts are not disputed, an appeal
presents only a question of law. Jones v. Purcell
Investments, LLC, 2010 OK CIV APP 15, ¶ 2, 231
P.3d 706, 708. The parties agree on the facts
material to this dispute; however, the parties
do not agree on the meaning of the language
“subject to those matters listed on Exhibit A” in
the settlement agreement between ODG-OU
and First United. The meaning assigned by the
trial court to a contract is a question of law.
May v. Mid-Century Ins. Co., 2006 OK 100, ¶ 22,
151 P.3d 132, 140. Questions of law are reviewed
de novo. Id.
¶9 Benefit Bank argues fee simple title “subject to” Benefit Bank’s mortgage means fee
simple title “subordinate to” Benefit Bank’s
mortgage. HSRE argues “subject to” merely
recognizes that there are other liens against the
property. According to the Oklahoma Statutes
and the Supreme Court of Oklahoma:
The intent of the parties at the time of the
contract’s formation, as expressed within
the four corners of the document, controls
the meaning of the written contract. Intent
must be discerned from the entire instrument taken as a whole. Where a contract is
complete in itself and, as viewed in its
entirety, contains clear and explicit language leaving it free of ambiguity, its language is the only legitimate evidence of
what the parties intended.
Bank of Oklahoma, N.A. v. Red Arrow Marina
Sales & Service, Inc., 2009 OK 77, ¶ 35, 224 P.3d
685, 698-699 (footnotes omitted); see 15 O.S. §§
151-178. We note that Benefit Bank was not a
party to the settlement agreement. First United
and ODG-OU were the parties to the settlement agreement. The intent of First United and
ODG-OU at the time of the contract’s formation, as expressed in the four corners of the
document, controls the meaning of the settlement agreement. The settlement agreement
contains clear and explicit language free of
ambiguity. Therefore, the language in the settlement agreement is the only legitimate evidence of what the parties intended.
1100
¶10 Based on our reading of the four corners
of the settlement agreement, the language
“subject to those matters listed on Exhibit A”
merely recognizes the existence of liens against
the property, including Benefit Bank’s mortgage. This language does not subordinate First
United’s first mortgage. First United did not
waive its right to foreclose the interests of third
parties. Waiver is the voluntary and intentional
relinquishment of a known right. Barringer v.
Baptist Healthcare of Oklahoma, 2001 OK 29, ¶ 22,
22 P.3d 695, 700-701 (citing Faulkenberry v. Kansas City Southern Ry. Co., 1979 OK 142, 602 P.2d
203, 206-207). The doctrine is essentially a matter of intention, focusing on the intent of the
party against whom waiver is asserted. Barringer, 2001 OK 29, ¶ 22, 22 P.3d at 701 (citing
Archer v. Wedderien, 1968 OK 186, 446 P.2d 43;
State ex rel. Gaines v. Beaver, 1945 OK 318, 166
P.2d 776). The settlement agreement contemplates the mortgagee bringing a foreclosure
action in the future:
1.01.2 Release and Covenant Not to Sue. Mortgagee hereby remises, releases and forever
discharges Mortgagor and Guarantors . . .
of and from any and all claims, causes of
action, suits, controversies, torts and
demands whatsoever involving in personam liability Mortgagee heretofore had or
now has by reason of the Note, the Security
Documents, and the Guarantees or otherwise arising in connection with the Project
. . . or the loan transaction evidenced by the
Security Documents. Mortgagee agrees that
upon any subsequent determination that it is
necessary, advisable or appropriate to institute
a foreclosure action in order to foreclose the
interest of any third party, Mortgagee shall not
seek an in personam judgment or deficiency
judgment against Mortgagor or Guarantors. It
is expressly understood and agreed between the parties hereto that any such legal
proceeding shall be in rem only and with
respect to the Project and the other real and
personal property securing payment of the
Note, subject to the provisions of Article
VII hereof.
First United did not intentionally relinquish
its right to foreclose the interests of third parties. As a result, First United’s first mortgage
was not subordinated to Benefit Bank’s second mortgage.
¶11 AFFIRMED.
JOPLIN, C.J., and BELL, J., concur.
Vol. 84 — No. 15 — 5/25/2013
1. Case No. CJ-2010-1220 and Case No. CJ-2010-1221 were consolidated. The trial court order in Case No. CJ-2010-1220 is being
appealed.
2. The Restatement (Third) of Property § 8.5 Mortgages provides: “The doctrine of merger does not apply to mortgages or affect
the enforceability of a mortgage obligation.”
2013 OK CIV APP 41
Terry B. Noble and Cynthia N. Noble,
Plaintiffs, vs. JERRY BOYD NOBLE,
Defendant/Appellant, RONALD DEAN
DAYTON and COREY WAYNE DAYTON,
Appellees.
Case No. 110,176. January 31, 2013
MAJOR COUNTY, OKLAHOMA
HONORABLE TIMOTHY HAWORTH,
JUDGE
AFFIRMED
James C. Peck, Judith L. Morgan,Peck & Morgan, Oklahoma City, Oklahoma, for Appellant,
John W. McCue, II, Fairview, Oklahoma, for
Appellees.
Larry Joplin, Chief Judge:
¶1 Defendant/Appellant Jerry Boyd Noble
seeks review of the trial court’s order confirming the sheriff’s sale of property to Appellees
Ronald Dean Dayton and Corey Wayne Dayton
in the action for partition commenced by Plaintiffs Terry B. Noble and Cynthia N. Noble. In this
appeal, Defendant asserts the trial court erred in
denying his prayer to redeem the property prior
to confirmation of the sheriff’s sale.
¶2 Plaintiffs and Defendant inherited eight
hundred eighty acres of real property in Major
County, Oklahoma, from their grandfather.
When they could not agree to a partition of the
property in kind, Plaintiffs commenced the
instant action. The trial court appointed commissioners to appraise the property, directed
sale of the property by the sheriff for not less
than two-thirds of the appraised value, and
ordered a division of the proceeds among the
Plaintiffs and Defendant.
¶3 The commissioners returned their report
valuing the property at $528,000.00, and neither Plaintiffs nor Defendant objected to the
commissioners’ report. Appellees purchased
the property at sheriff’s sale for $378,400.00.
Plaintiffs filed a motion to confirm the sale.
Prior to hearing on the motion to confirm,
Defendant filed his Objection to Motion to
Vol. 84 — No. 15 — 5/25/2013
Confirm and a Notice of Exercise of Right to
Redemption.
¶4 After a hearing, the trial court denied
Defendant’s Objection and asserted Right of
Redemption, and a sheriff’s deed issued to
Appellees. Defendant now appeals, and complains the trial court erred in denying him his
asserted right of redemption.
¶5 Partition of real estate by sheriff’s sale is
governed by statute, and an action to partition
by sale is commenced by filing of a petition
describing “the property and the respective
interests of the owners thereof, if known.” 12
O.S. §1501.1(A). “The answers of the defendants must state, among other things, the
amount and nature of their respective interests[; t]hey may also deny the interests of any
of the plaintiffs, or any of the defendants.” 12
O.S. §1504. “After the interests of all the parties
shall have been ascertained, the court shall
make an order specifying the interests of the
respective parties, and directing partition to be
made accordingly.” 12 O.S. §1505. “Upon making such order, the court shall appoint three
commissioners to make partition into the requisite number of shares.” 12 O.S. §1506. “The
commissioners shall make partition of the
property among the parties according to their
respective interests, if such partition can be
made without manifest injury[,] [b]ut if such
partition cannot be made, the commissioners
shall make a valuation and appraisement of
the property[,] [and] [t]hey shall make a report
of their proceedings to the court, forthwith.” 12
O.S. §1509. “If partition be made by the commissioners, and no exceptions are filed to their
report, the court shall render judgment that
such partition be and remain firm and effectual
forever.” 12 O.S. §1511.
¶6 “If partition cannot be made, and the
property shall have been valued and appraised,
any one or more of the parties may elect to take
the same at the appraisement, and the court
may direct the sheriff to make a deed to the
party or parties so electing, on payment to the
other parties of their proportion of the appraised
value.” 12 O.S. §1512. “If none of the parties
elect to take the property at the valuation, or if
several of the parties elect to take the same at
the valuation, in opposition to each other, the
court shall make an order directing the sheriff
of the county to sell the same, in the same manner as in sales of real estate on execution; but
no sale shall be made at less than two-thirds
(2/3) of the valuation placed upon the property
1101
by the commissioners.” 12 O.S. §1513. “The
sheriff shall make return of his proceedings to
the court, and if the sale made by him shall be
approved by the court, the sheriff shall execute
a deed to the purchaser, upon the payment of
the purchase money, or securing the same to be
paid, in such manner as the court shall direct.”
12 O.S. §1514. “The court making partition shall
tax the costs, attorney’s fees and expenses which
may accrue in the action, and apportion the
same among the parties, according to their
respective interests, and may award execution
therefor, as in other cases.” 12 O.S. §1515. “The
court shall have full power to make any order,
not inconsistent with the provisions of this article, that may be necessary to make a just and
equitable partition between the parties, and to
secure their respective interests.” 12 O.S. §1516.
¶7 Although this statutory regime has been
on the books since statehood, the provisions
are entirely silent on the issue of redemption.
Furthermore, the parties neither cite, nor do we
find, any Oklahoma cases addressing the propriety of redemption in an action for partition
by sale.
¶8 Defendant nevertheless argues by analogy
that, in an action for the forced sale of property
in satisfaction of a mortgage, redemption is a
favored, substantive legal right which lasts
until confirmation of the sale. Sooner Federal Sav.
and Loan Ass’n v. Oklahoma Cent. Credit Union,
1989 OK 170, ¶11, 790 P.2d 526, 529.1 Furthermore, says Defendant, Oklahoma law also recognizes the equitable right of redemption. Sooner
Federal Sav. and Loan Ass’n, 1989 OK 170, ¶12, 790
P.2d at 529.2 The Defendant points out that, so,
too, in tax sales is the right of redemption
assured. 68 O.S. Supp. 2009 §3113.3
¶9 Appellees respond, and first point out
that the Oklahoma legislature made no statutory provision for redemption in partition
actions as it did in actions for foreclosure of a
security interest or the satisfaction of a tax burden, and that the legislature’s choice in this
respect evinces the legislature’s intent to treat
actions for partition by sale differently from
actions for forced sale in satisfaction of a debt
or tax. Appellees argue secondly, that the policy underlying redemption in mortgage foreclosures and tax sales, i.e., the loss of real property
without adequate compensation, is entirely
absent in an action for partition where the
owners of property partitioned by sheriff’s sale
are entitled to a proportionate share of the sale
proceeds.
1102
¶10 In a partition action, the right to redemption lies, if at all, only in the presence of statutory authority and the existence of a debtorcreditor relationship. 30 Am. Jur. 2d Executions,
Etc. §363 (Westlaw 2012)4; 59A Am. Jur. 2d Partition §49 (Westlaw 2012)5; 76 Am. Jur. 2d Trusts
§162 (Westlaw 2012)6; 86 C.J.S. Tenancy in
Common §51 (Westlaw 2012).7
¶11 In this respect, absent Oklahoma statutory authority granting the right to redemption
and the existence of a debtor-creditor relationship between the partitioner and purchaser at
sheriff’s sale, we cannot say the trial court
erred in denying Defendant’s request to
redeem. As a practical matter, one co-owner of
property to be partitioned by sale has no more
superior claim to possession of the whole parcel than any other co-owner, whereas in the
case of a mortgage foreclosure or tax sale, one
might reasonably argue that the owner of the
property sold in satisfaction of a mortgage or
tax debt ought to be afforded the right to rescue his property from loss by satisfying the
debt for which sale was ordered. Defendant
clearly does not stand in the same position visa-vis the property partitioned by sale as does a
mortgagor or tax debtor vis-a-vis the property
sold in satisfaction of a debt or tax burden. In
short, there is no Oklahoma legal authority
recognizing the right of redemption in a partition action.
¶12 As a matter of equity, the legislature
granted the trial court broad discretion “to
make any order, not inconsistent with the provisions of this article, that may be necessary to
make a just and equitable partition between
the parties, and to secure their respective interests.” So, while this broad equitable discretion
would clearly encompass the power to grant a
claim for redemption by one co-owner of property partitioned by sale, this broad equitable
discretion in no way requires the exercise of
that power when the court is confronted with a
redemption plea in an action for partition by
sale. Defendant offers no compelling argument
demonstrating an abuse of this broad discretion by the trial court in the present case for
refusing to grant his plea to redeem.
¶13 Appellees in their brief request an award
of appellate attorney’s fees under the frivolous
appeal provisions of 20 O.S. §15.1. However,
given the lack of a precedential pronouncement on the issue of redemption in partition
actions, we are hesitant to characterize Defendant’s appeal as wholly without merit under
Vol. 84 — No. 15 — 5/25/2013
§15.1 as to warrant an award of appellate attorney’s fees under that section.
¶14 The order of the trial court granting the
Plaintiffs’ Motion to Confirm and denying
Defendant’s plea to redeem is AFFIRMED.
Appellees’ prayer for an award of attorney’s
fees under 20 O.S. §15.1 is denied.
BUETTNER, P.J., and BELL, J., concur.
1. “According to [42 O.S. §18,] ‘[e]very person having an interest in
property subject to a lien, has a right to redeem it from the lien, at any
time after the claim is due, and before his right of redemption is foreclosed.’ The redemptive right is not extinguished at the time of sale but
rather when the order of sale is confirmed.” (Footnotes omitted.)
2. “[T]he equitable right of redemption belongs to one who has an
interest in the premises that would be lost on foreclosure or to one who
owns the mortgagor’s equity of redemption or any subsisting interest
therein by privity of title acquired by purchase, inheritance or otherwise. A borrower or any other person (i.e., subordinate lender, owner)
having an interest subject to a lien has a right of redemption that is not
extinguished at the time of sale but extends until the order of sale is
confirmed. This is so because by statute a judicial sale on foreclosure is
neither conclusive nor binding in the sense of transferring legal title to
the purchaser until it is effectively confirmed.”
3. “The owner of any real estate, or any person having a legal or
equitable interest therein, may redeem the same at any time before the
execution of a deed of conveyance therefor by the county treasurer by
paying to the county treasurer the sum which was originally delinquent
including interest at the lawful rate as provided in Section 2913 of this
title and such additional costs as may have accrued; provided, that
minors or incapacitated or partially incapacitated persons may redeem
from taxes any real property belonging to them within one (1) year after
the expiration of such disability, with interest and penalty at not more
than ten percent (10%) per annum. The term incapacitated as used in this
section relates to mental incapacitation only, physical disability is not
covered under this term or this section.” (Footnotes omitted.)
4. “Ordinarily, statutory authority to redeem property sold under
execution is granted to the judgment debtor or the debtor’s representative or successor in interest. If a party claiming to be the successor in
interest to the judgment debtor’s title can demonstrate to the court that
it legally succeeded to the debtor’s title, the successor is entitled to
redeem and the creditor is entitled only to the moneys due a creditor
as provided by the applicable redemption statute.
It has been held that a judgment debtor has standing to seek to
redeem property sold at an execution sale after he or she had conveyed his or her right to redeem to a third party, at least where the
execution sale did not fully satisfy the judgment against the debtor.”
(Footnotes omitted.)
5. “One merely having a judgment lien on the undivided interest of
a tenant in common of real estate is not a joint owner or tenant in common of the property who may seek partition. Instead, there must be an
execution and sale, and the time given to the judgment debtor to redeem
his or her property must also expire. The judgment creditor’s right to
partition is affected by statutes exempting certain of the debtor’s property interests from execution. However, under a particular statute, a
judgment lien creditor may compel joint tenants with the right of survivorship to partition their property for the purpose of satisfying a judgment against one of the co-owners.” (Footnotes omitted.)
6. “A resulting trust may exist in connection with an agreement to
bid in or purchase for a person having an interest in or lien on property
sold at a judicial, partition, or similar sale, or in connection with an agreement to redeem and hold property for the owner.” (Footnotes omitted.)
7. “Under some statutes, a tenant in common who redeems, for the
benefit of all, the common property from a tax sale and who also recovers
the proceeds from a sale of timber taken from the land and rent stands in
the position of a trustee for the co-tenants with respect to the proceeds
from the timber and the rent. Under other statutes, a tenant in common
who redeems the common property from a mortgage foreclosure sale has
been held the owner of the rents and profits from the property until the
other co-tenants have taken due and proper steps to participate in the
redemption. Where the other co-tenants take proper steps to avail themselves of the redemption by making, or offering to make, their proportionate contribution to the redemption of the property, the tenant who
redeemed must account to the other co-tenants for the rents and profits
he or she received from the property.” (Footnotes omitted.)
Vol. 84 — No. 15 — 5/25/2013
2013 OK CIV APP 43
GUSTAVO LOPEZ and VALERIE LOPEZ,
Plaintiffs/Appellants, vs. TODD B.
ROLLINS; KATHERINE ANN ROLLINS;
TODD B. ROLLINS LIVING TRUST;
KATHERINE A. ROLLINS LIVING TRUST;
NEWPORT APPRAISAL CO., INC.;
McGRAW DAVISSON STEWART, LLC;
WALTER & ASSOCIATES, INC.; LAURA
HAWKINS; and BLAKE LOVELESS,
Defendants/Appellees.
Case No. 110,755. February 8, 2013
TULSA COUNTY, OKLAHOMA
HONORABLE DAMON H. CANTRELL,
JUDGE
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
William C. Searcy, Kenneth E. Crump, Jr., BARBER & BARTZ, Tulsa, Oklahoma, for Plaintiffs/Appellants,
BRIAN T. ASPAN, Tulsa Oklahoma, for Defendants/Appellees Todd B. Rollins, Katherine
Ann Rollins, Todd B. Rollins Living Trust, and
Katherine A. Rollins Living Trust,
Joseph R. Farris, FELDMAN FRANDEN WOODARD & FARRIS, Tulsa, Oklahoma, for Defendant/Appellee Newport Appraisal Co., Inc.,
Robert R. Peters II, Lauren A. Pierce, HEROUX
& HELTON, PLLC, Tulsa, Oklahoma, for Defendants/Appellees McGraw Davisson Stewart, LLC and Laura Hawkins,
Jennifer L. Struble, SECREST, HILL, BUTLER
& SECREST, Tulsa, Oklahoma, for Defendants/
Appellees Walter & Associates, Inc. and Blake
Loveless.
¶1 Plaintiffs/Appellants Gustavo Lopez and
Valerie Lopez (Buyers) appeal the trial court’s
order granting summary judgment in favor of
Defendants/Appellees Todd B. Rollins and
Katherine Ann Rollins, Todd B. Rollins Living
Trust, Katherine A. Rollins Living Trust (collectively, Sellers), Newport Appraisal Co., Inc.,
McGraw Davisson Stewart, LLC (McGraw
Davisson), Laura Hawkins, Walter & Associates, Inc., and Blake Loveless. After de novo
review, we hold that Newport is entitled to
judgment as a matter of law as to Buyers’ negligence claim. We further hold that Sellers,
1103
McGraw Davisson, Hawkins, Walter & Associates, and Loveless are not entitled to judgment
as a matter of law as to Buyers’ negligent misrepresentation and fraud claims. There is a
genuine dispute as to whether the Sellers and
Brokers/Realtors represented the square footage of the house reasonably, recklessly, or with
intentional dishonesty. The order of the trial
court is AFFIRMED IN PART, REVERSED IN
PART, and REMANDED.
¶2 Prior to listing their house for sale, Sellers
hired Suzanne Bloyed to conduct an appraisal.
Bloyed determined the house contained 5,053
square feet of liveable space. Sellers engaged
the services of Laura Hawkins, a real estate
licensee employed by McGraw Davisson.
McGraw Davisson was the listing transaction
broker for the Sellers, and the house was colisted with Blake Loveless, a real estate licensee
employed by Walter & Associates. At the time
the house was listed for sale, the Tulsa County
Assessor reported the house contained 4,614
square feet. When Hawkins and Loveless asked
Sellers about the square footage discrepancy
between the appraisal and the county assessor’s records, Sellers explained the discrepancy
was due to an addition they built onto the
home. Hawkins created the MLS listing using
the square footage from the Bloyed appraisal.
The MLS listing described the square footage
as “5,053 / CH,” meaning 5,053 per courthouse
records. The MLS listing stated that “[i]nformation is believed to be accurate but not guaranteed.” Hawkins also created marketing
materials for prospective buyers which described the square footage as “5,053 sq. ft. per
appraisal” and stated that “[i]nformation
deemed reliable, but not guaranteed.” Loveless
created marketing materials which described the
square footage as “5,053 square feet per courthouse records,” and stated that “[a]lthough the
information contained herein has been furnished
by sources deemed reliable, none of such information has been verified and no representation,
either express or implied, is made as to the
accuracy thereof.” The courthouse records did
not indicate the house contained 5,053 square
feet of liveable space.
¶3 Buyers entered into a contract to purchase
the house September 8, 2007. The Oklahoma
Uniform Contract of Sale of Real Estate entered
into contained the following provision:
Buyer, at Buyer’s expense, shall have the
right to enter upon the Property, together
with an Oklahoma licensed Home Inspector,
1104
registered professional engineer, licensed
architect, professional craftsman, and/or
any other person Buyer deems qualified, to
conduct any and all investigations, inspections, and reviews. Buyer’s investigations,
inspections, and reviews may include, but
not be limited to, the following:
...
11) Square Footage. Buyer shall not rely on
any quoted square footage and shall have
the right to measure the Property.
Buyers’ lending institution required that Newport Appraisal conduct an exterior-only appraisal of the property. Newport did not enter
the home or take its own measurements. Rather,
Newport consulted Bloyed and used her square
footage calculation of 5,053 square feet. Prior to
closing, Buyer Valerie Lopez called the lending
institution to confirm the appraised value was
satisfactory for the loan, and the lending institution confirmed it was. Buyers closed on the purchase November 15, 2007.
¶4 In April 2009, the Tulsa County Assessor
reassessed the value of the house and reported
the amount of livable space was 4,130 square
feet. Buyers had their own appraisal conducted
by Larry A. Stotts, who determined the amount
of liveable space was 4,383 square feet. Buyers
instituted this action against Sellers, McGraw
Davisson, Hawkins, Walter & Associates, and
Loveless for fraud and negligent misrepresentation. Buyers also sued Sellers for breach of
contract and McGraw Davisson, Hawkins,
Walter & Associates, and Loveless (collectively,
Brokers/Realtors) for violations of the Real
Estate License Code. Buyers sued Newport for
negligence. Buyers contend they relied on the
collective representations of all Appellees in
deciding to purchase the house, and they
would not have purchased it if they had known
that the square footage was less than 5,053
square feet. All parties filed motions for summary judgment or partial summary judgment.
¶5 The trial court denied summary judgment
for Buyers and granted summary judgment in
favor of all Appellees. The trial court determined that the Residential Property Condition
Disclosure Act (RPCDA), 60 O.S.Supp.2003 §§
831-839, applied to representations of square
footage, because the RPCDA was “the exclusive vehicle for recovery where misinformation
is communicated in the sale of residential
property.” The trial court found that because
Buyers had not asserted claims under the
Vol. 84 — No. 15 — 5/25/2013
RPCDA, Sellers and Brokers/Realtors were
entitled to judgment as a matter of law. The
trial court also granted summary judgment in
favor of Newport, because there was no evidence that Buyers relied on the square footage
reported in Newport’s appraisal before purchasing the house. Buyers appeal.
¶6 We review the trial court’s grant of summary judgment de novo. Carmichael v. Beller,
1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. We, like
the trial court, will examine the pleadings and
evidentiary materials submitted by the parties
to determine if there is a genuine issue of material fact. Id. Summary judgment proceedings are
governed by Rule 13, Rules for District Courts,
12 O.S.2011, Ch. 2, App. Summary judgment is
appropriate where the record establishes no substantial controversy of material fact and the
prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group,
1999 OK 7, ¶ 7, 976 P.2d 1043, 1045. Summary
judgment is not proper where reasonable minds
could draw different inferences or conclusions
from the undisputed facts. Id. Further, we must
review the evidence in the light most favorable
to the party opposing summary judgment. Vance
v. Fed. Nat’l Mortgage Ass’n, 1999 OK 73, ¶ 6, 988
P.2d 1275, 1278.
¶7 The first issue is whether the RPCDA provides the sole and exclusive remedy for misrepresentations of square footage in the sale of
residential property. Issues of statutory construction are questions of law to be reviewed de
novo, and appellate courts exercise plenary,
independent, and non-deferential authority.
Welch v. Crow, 2009 OK 20, ¶ 10, 206 P.3d 599,
603. In cases requiring statutory construction,
the cardinal rule is to ascertain and give effect
to the intent of the Legislature. Id. The words of
a statute will be given a plain and ordinary
meaning, unless it is contrary to the purpose
and intent of the statute considered as a whole.
Naylor v. Petuskey, 1992 OK 88, ¶ 4, 834 P.2d
439, 440.
¶8 According to the RPCDA, a seller of property located in Oklahoma shall deliver to the
purchaser of such property a written property
disclaimer statement or a written property condition disclosure statement. See 60 O.S. § 833(A)
(1)-(2). The property condition disclosure statement shall include a statement of whether the
seller has actual knowledge of defects or information related to water and sewer systems,
structural systems, plumbing, electric, heating
and air conditioning systems, termite infestaVol. 84 — No. 15 — 5/25/2013
tion or damage, major fire or tornado damage,
land use matters, existence of hazardous materials and other conditions of environmental
impact, existence of prior manufacturing of
methamphetamine, any other defects known
to the seller, and other matters the Oklahoma
Real Estate Commission deems appropriate. 60
O.S. § 833(B)(1)(a)-(j). The remedies section of
the RPCDA provides, in pertinent part:
A. The purchaser may recover in a civil
action only in the event of any of the following:
1. The failure of the seller to provide to the
purchaser a disclaimer statement or a disclosure statement and any amendment
prior to acceptance of an offer to purchase;
2. The failure of the seller to disclose in the
disclosure statement or any amendment
provided to the purchaser a defect which
was actually known to the seller prior to
acceptance of an offer to purchase; or
3. The failure of the real estate licensee to
disclose to the purchaser any defects in the
property actually known to the real estate
licensee prior to acceptance of an offer to
purchase and which were not included in
the disclosure statement or any amendment provided to the purchaser.
B. The sole and exclusive civil remedy at
common law or otherwise for a failure under
subsection A of this section by the seller or
the real estate licensee shall be an action for
actual damages, including the cost of repairing the defect, suffered by the purchaser as a
result of a defect existing in the property as
of the date of acceptance by the seller of an
offer to purchase and shall not include the
remedy of exemplary damages.
...
F. This act applies to, regulates and determines rights, duties, obligations and remedies at common law or otherwise of the
seller, the real estate licensee and the purchaser with respect to disclosure of defects
in property and supplants and abrogates
all common law liability, rights, duties,
obligations and remedies therefore.
60 O.S. § 837(A)-(B), (F). Sellers provided to
Buyers a disclosure statement pursuant to §
837(A)(1). The question presented is whether
failure to disclose the discrepancy between the
square footage in the Bloyed appraisal and the
1105
Tulsa County Assessor’s records was a defect
which was actually known to the Sellers or
Brokers/Realtors prior to the acceptance of the
offer to purchase. See 60 O.S. § 837(A)(2)-(3). If
the representation of square footage comes
within § 837(A), the RPCDA provides the sole
and exclusive remedy available to Buyers. See
60 O.S. § 837(B).
¶9 Sellers and Brokers/Realtors argue and
the trial court agreed that the RPCDA is a
buyer’s exclusive remedy for the misrepresentation of square footage. This argument is
based on the Oklahoma Supreme Court’s decision in White v. Lim, 2009 OK 79, 224 P.3d 679.
Sellers and Brokers/Realtors rely on the Court’s
broad concluding statement that, “[t]he Legislature’s intent that the [RPCDA] be the exclusive vehicle for recovery where misinformation
is communicated in the sale of residential
property is clearly stated in the amendatory
language of [the RPCDA].” Id. ¶ 17, at 685.
¶10 The Court’s statement must be read in
context. After the buyers in White discovered
severe termite damage, they sued the sellers
and broker for misrepresentation of the condition of the property. See id. ¶ 4, at 682. The
RPCDA clearly requires that the condition disclosure statement include whether the seller
has actual knowledge of termite infestation or
damage. See 60 O.S. § 833(B)(1)(d). The issue in
White was not whether termite damage came
within the purview of the RPCDA. The issue
was whether the buyers could bring a common
law action independent of the RPCDA and
recover punitive damages. See White, 2009 OK
79, ¶¶ 4, 9, 224 P.3d at 682-683. The Court held
that “the mandatory, clear, and unmistakable
language of Title 60 O.S.Supp.2003 § 837 limits
the right of a purchaser to recover for failure to
disclose known defects in residential property
to those provided in the [RPCDA]” and, therefore, buyers were limited to actual damages.1
The RPCDA is the sole and exclusive remedy
where misinformation is communicated in the
sale of residential property, but only when that
misinformation relates to defects or matters
listed in 60 O.S. § 833(B)(1). The RPCDA only
provides the sole and exclusive remedy for
misinformation contemplated in the Act. Unlike
White, the issue here is whether a discrepancy
in measurements of square footage comes
within the purview of the RPCDA.
¶11 Square footage is not one of the disclosures required by 60 O.S. § 833. The Residential
Property Condition Disclosure Statement pro1106
duced by the Oklahoma Real Estate Commission does not include a disclosure of square
footage. The buyer may bring a civil action
under the RPCDA only if the seller or real
estate licensee fails to disclose in the disclosure
statement a defect actually known to the seller
or real estate licensee. See 60 O.S. § 837(A)
(2)-(3). The RPCDA defines “defect” as “a condition, malfunction or problem that would
have a materially adverse effect on the monetary value of the property, or that would impair
the health or safety of future occupants of the
property.” 60 O.S. § 832(9). According to § 837,
the sole and exclusive remedy for a failure to
disclose a defect actually known to the seller or
real estate licensee “shall be an action for actual damages, including the cost of repairing the
defect.” 60 O.S. § 837(B) (emphasis added). Failure to disclose a discrepancy in square footage
measurements is not a condition, malfunction
or problem that can be repaired. Square footage is not contemplated as a condition that
requires disclosure under the RPCDA, and
inaccurate square footage is not a defect that
can be repaired. Therefore, we hold (1) that
square footage is not a required disclosure
under the RPCDA, and (2) that the RPCDA is
not the sole and exclusive remedy for the misrepresentation of square footage.
¶12 The next issue is whether there is a genuine dispute of material fact as to the negligent
misrepresentation and fraud claims against
Sellers and Brokers/Realtors. Oklahoma has
adopted the Restatement (Second) of Torts
§ 552 for negligent misrepresentation:
One who, in the course of his business,
profession or employment, or in any other
transaction in which he has a pecuniary
interest, supplies false information for the
guidance of others in their business transactions, is subject to liability for pecuniary loss
caused to them by their justifiable reliance
upon the information, if he fails to exercise
reasonable care or competence in obtaining
or communicating the information.
See, e.g., Stroud v. Arthur Andersen & Co., 2001
OK 76, ¶ 34, 37 P.3d 783, 793-794. The elements
of fraud are: 1) a false material misrepresentation, 2) made as a positive assertion which is
either known to be false or is made recklessly
without knowledge of the truth, 3) with the
intention that it be acted upon, and 4) which is
relied on by the other party to his or her own
detriment. See Bowman v. Presley, 2009 OK 48, ¶
13, 212 P.3d 1210, 1217-18. We hold that one
Vol. 84 — No. 15 — 5/25/2013
could infer negligent misrepresentation and
fraud from the Sellers and Brokers/Realtors’
failure to disclose the square footage discrepancy between the Bloyed appraisal and the county
assessor’s records.2 Sellers admit material facts
are in dispute, and whether Brokers/Realtors’
representations of square footage were reasonable, reckless, or made with intentional dishonesty is a question of fact for the jury. Therefore,
Sellers and Brokers/Realtors are not entitled to
judgment as a matter of law.
¶13 Sellers admitted in their Response to
Buyers’ Counter Motion for Partial Summary
Judgment that if they were not entitled to summary judgment based upon the RPCDA, Buyers
were not entitled to summary judgment because
the elements of negligent misrepresentation and
fraud were hotly disputed. Brokers/Realtors
argued that, based on Rice v. Patterson Realtors,
1993 OK 103, 857 P.2d 71, and Dawson v. Tindell,
1987 OK 10, 733 P.2d 407, Buyers’ claims were
barred by the disclaimers on the marketing
materials and Buyers’ waiver under the sales
contract and closing acknowledgment.
¶14 Nearly identical waivers and disclaimers
were involved in Bowman v. Presley. See 2009
OK 48, ¶ 4, 212 P.3d at 1215 n.6-8. In Bowman,
the buyers purchased a house that had been
represented as containing 2,890 square feet. Id.
¶ 2, at 1214. Shortly after closing, the buyers
received a copy of a mortgage appraisal which
found the house was 2,187 square feet. Id. ¶ 3,
at 1215. The buyers brought suit against the
broker, realtor, and sellers for damages based
on fraud, breach of implied contract, and violations of the Oklahoma Real Estate License
Code. Id. The broker, realtor, and sellers moved
for summary judgment and argued that buyers
had a duty to independently determine the
property’s correct size and that the buyers
waived their right to sue by signing the sales
contract and closing agreement. Id. ¶ 4, at 1215.
The Oklahoma Supreme Court held that the
sellers and broker/realtor were not entitled to
summary judgment on the buyer’s fraudulent
misrepresentation claims. The Court noted that
the buyers’ claims were anchored in fraud and
determined:
[T]he relevant duty of a real estate licensee is
to treat all parties with honesty. A licensee
may incur liability for failure to uphold that
duty when lay persons such as Buyers rely
upon their representations made as licensed
professionals. The question of whether Broker
and Realtor represented the property size reasonVol. 84 — No. 15 — 5/25/2013
ably, recklessly, or with intentional dishonesty
must be resolved by the trier of fact.
Id. ¶ 27, at 1221 (emphasis added). The Court
summarized its holding:
Buyers of real property may rely on positive representations made by realtors and
sellers about the property’s size. Representations of the size of real property are statements of material fact, not expressions of
opinion, and a buyer need not conduct a
separate investigation to ascertain their
truth. If the buyer later alleges fraudulent
misrepresentation against the realtor or
seller, questions of whether the buyer was in
fact deceived and suffered detriment because of
the misrepresentation must be decided by the
trier of fact. A real estate licensee is in such
instances also bound by a professional
duty to treat all parties with honesty.
Id. ¶ 31, at 1222 (emphasis added).
¶15 Brokers/Realtors in this case have
advanced the same arguments as the broker/
realtor in Bowman. According to Bowman, the
question of whether a real estate licensee represented the square footage of the house in a
manner that was reasonable, reckless, or intentionally dishonest must be resolved by the trier
of fact. Therefore, Sellers and Brokers/Realtors
are not entitled to judgment as a matter of law
as to the negligent misrepresentation and fraud
claims, and we reverse and remand for further
proceedings.
¶16 The final issue on appeal is whether
Newport is entitled to judgment as a matter of
law as to Buyers’ negligence claim. It is undisputed that Newport’s Exterior-Only Inspection
Residential Appraisal Report reflected the prior
appraisal’s measurement of 5,053 square feet. It
is also undisputed that Buyers had not seen
Newport’s appraisal report prior to closing.
Prior to closing, the lending institution told
Buyers only that the appraised value was satisfactory for the loan, not that the house measured at 5,053 square feet. Because Buyers did
not rely on the square footage information contained in Newport’s appraisal report, Newport
could not have been the proximate cause of
harm to Buyers. We affirm the part of the trial
court’s order granting summary judgment in
favor of Newport.
¶17 AFFIRMED IN PART, REVERSED IN
PART AND REMANDED.
BELL, J., concurs.
1107
JOPLIN, Chief Judge, concurs in part, dissents
in part:
I would affirm the trial court’s judgment
completely.
Workers’ Compensation
(THE NEW LAW MEANS MAJOR CHANGES)
Social Security
Disability
1 The Court held that the RPCDA expressly prohibited awards of
punitive damages. White, 2009 OK 79, ¶ 15, 224 P.3d at 684. Title 60, §
837 provides:
The sole and exclusive civil remedy at common law or otherwise
for a failure under subsection A of this section by the seller or the
real estate licensee shall be an action for actual damages, including
the cost of repairing the defect, suffered by the purchaser as a
result of a defect existing in the property as of the date of acceptance by the seller of an offer to purchase and shall not include the
remedy of exemplary damages.
60 O.S. § 837(B) (emphasis added).
2. On the other hand, if Sellers and Brokers/Realtors had only a
single measurement for square footage and disclosed the source of the
measurement, no inference of negligent misrepresentation or fraud
would arise.
Biscone & Biscone will gladly
accept your referrals.
Association/referral fees paid
1-800-426-4563
405-232-6490
105 N. Hudson, Suite 100 • Hightower Building
Oklahoma City, OK 73102
NOTICE OF JUDICIAL VACANCY
The Judicial Nominating Commission has reopened the application process and seeks
applicants to fill the following judicial office:
Associate District Judge
Eighth Judicial District
Noble County, Oklahoma
This vacancy is created by the retirement of the Honorable Dan Allen effective December 31, 2012.
To be appointed an Associate District Judge, an individual must be a registered voter
of the applicable judicial district at the time (s)he takes the oath of office and
assumes the duties of office. Additionally, prior to appointment, the appointee must
have had a minimum of two years experience as a licensed practicing attorney, or as
a judge of a court of record, or combination thereof, within the State of Oklahoma.
Application forms can be obtained on line at www.oscn.net by following the link to
the Oklahoma Judicial Nominating Commission or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 North Lincoln, Suite 3, Oklahoma City, OK 73105, (405)
556-9300, and should be submitted to the Chairman of the Commission at the same
address no later than 5:00 p.m., Friday, May 31, 2013. If applications are mailed,
they must be postmarked by midnight, May 31, 2013.
Heather Burrage, Chairman
Oklahoma Judicial Nominating Commission
1108
Vol. 84 — No. 15 — 5/25/2013
IN MEMORIAM
OBA 1986 President
James “Jim” R. Eagleton Sr.
He received his J.D. in 1951 and began
a 60-year career in law. He was proud
to be a third generation Tulsa lawyer.
He served the legal profession on the
Oklahoma Board of Bar Examiners as
chairman; on an Oklahoma Temporary
Court of Appeals as presiding judge;
as president of the Tulsa County Bar
Association and president of the OBA.
P
ast OBA President James R.
Eagleton Sr., died May 21, 2013.
He was born Oct. 9, 1924. Following graduation from Tulsa Central
High School where he was a three-time
state wrestling champion, he joined the
Marine Corps.
He served from July 1943 to Christmas 1945 as a BAR Sharpshooter with
Edson’s Raiders, 4th Marines, 6th
Division on New Caledonia, Emirau,
Guadalcanal, Guam, Okinawa and
Japan. His military medals were the
Presidential Unit Citation, Navy Unit
Commendation and Purple Heart.
After the war, he entered the University of Oklahoma where he was an All
American and Olympic wrestler. He
pledged Sigma Chi Fraternity, was a
Life Loyal Sig and in 2009, was awarded the fraternity’s highest honor —
the Significant Sig Award.
Vol. 84 — No. 15 — 5/25/2013
In the community he served as YMCA
of Greater Tulsa president, Tulsa Family
and Children Services president, Knife
and Fork Club president, Tulsa Ozark
Club president and Tulsa Scottish Rite
Knight Commander of the Court of
Honour. He was active in Troop 1 of the
Boy Scouts of America the years his
sons were active. He was a life-long
Presbyterian and served as Sunday
School teacher, elder and trustee and
on the Dwight Mission Board.
He is survived by his wife, Grace, and
four sons: William L. IV; James R. Jr.
and his wife, Polly; John Mark and his
wife, Allison; and T. Paul and his wife,
Debbie. He is also survived by eight
grandchildren: Will, Sally Grace, Trey,
Jenny, Alex, Mark, J.P. and Sydni; as
well as his sister, Pauline Eagleton
Standifer, and brother, E. John Eagleton,
and their families.
Memorial contributions can be made
to Helping Hand at First Presbyterian
Church, 709 South Boston, Tulsa,
OK 74119.
1109
IN MEMORIAM
S
cott L. Graham died
May 13. He was born on
July 23, 1935. He was a graduate of the Oklahoma Military
Academy, earned his undergraduate degree from George
Washington University and
received his J.D. from OU. He
succeeded his father as chairman of the First National
Bank of Broken Arrow in
1966, and his son succeeded
him in 2012. Mr. Graham
found fulfillment working
with the bank and believed it
was the duty of a community
banker to achieve a greater
good for the community. He
was active in the Tulsa and
Broken Arrow chambers of
commerce, served as chairman of the Tulsa Opera,
chaired the Oklahoma Development Authority, served a
term on the Arts Council and
was named Broken Bow’s Citizen of the Year in 1972. He
also played a leading role in
the establishment of the Broken Arrow Community Foun-
1110
dation and the Margaret Hudson Program.
G
eorge Josef Miskovsky
Jr. died May 17. Born July
28, 1934, in Oklahoma City, he
earned his J.D. from OCU and
was admitted to the bar in
1962. He was an Army judge
advocate general and was
stationed in Italy. Throughout his career, he served as
president, vice-president, secretary and treasurer of the
Federal Bar Association. He
was a lifelong athlete, an
outstanding football player,
swimmer and polo player. He
was also an avid sailor and
loved racing yachts. He found
his niche serving as legal
counsel for Schock Marine
and Hobie Industries. He was
a Master Mason attending
Blue Lodge #276 and earned
both Guthrie Scottish Rite
32nd degree and York Rite at
the India Temple Shrine.
G
eorge Paul Walters died
May 23. He was born
Nov. 24, 1941, and graduated
from Broken Bow High School
in 1959. He attended OSU
where he studied banking and
finance and went on to earn
his J.D. from TU. He was Broken Bow city attorney, Broken
Bow School Board attorney,
counsel to several rural water
districts, counsel for the Choctaw Electric Cooperative, Broken Bow municipal judge and
president of the Broken Bow
Library Board. He was a
member of the First United
Methodist Church of Broken
Bow and served as administrative board chair. He volunteered as chairman of the
Oklahoma Tourism Commission. He also served for many
years as a guardian ad litem
for McCurtain County children, McCurtain County
Democratic Party chairman,
Broken Bow Chamber of
Commerce president and
Broken Bow Mock Trial team
mentor and coach.
Vol. 84 — No. 15 — 5/25/2013
BAR NEWS
Judicial Nominating Commission
Election Candidates
Ballots will be mailed on June 7, 2013, and must be returned by June 21, 2013, at 5 p.m.
Thomas Marcum, Durant
District 3
Michael C. Mordy, Ardmore
Mike Mordy practices in the areas of oil
and gas law, commercial litigation and
general business litigation. He is admitted
to practice before the
U.S. District Courts of
Oklahoma and the
10th Circuit Court of
Appeals. He obtained
his Bachelor of Business Administration
degree from the University of Oklahoma
in 1977 and graduated from Oklahoma City University School of Law in 1980. He has practiced
in Ardmore since 1983, with the firm of Mordy
& Mordy PC. He is a member of the Carter
County, State of Oklahoma and American Bar
Associations. He is a benefactor Fellow of the
Oklahoma Bar Foundation and currently serves
on the Oklahoma Bar Foundation Board of
Trustees. He served as a member of the OBA
Board of Governors from 2004 - 2006, and he
served as vice-president to Board of Governors
President Bill Conger in 2008. He currently
serves on the OBA Strategic Planning Committee Finance Subcommittee and Client Security
Fund Committee. He is active in his community where he serves on committees at First
United Methodist Church and on the local
YMCA Board.
Vol. 84 — No. 15 — 5/25/2013
Thomas Marcum
is a 2004 University
of Oklahoma College of Law graduate. He resides in
Durant with his wife,
DeAnn, and their
two children. He is
an attorney at the
Burrage Law Firm
where he practices
both civil and criminal law. Thomas also
serves as the municipal judge in both
Stringtown and Caddo, and recently completed his second term on the Durant City Council
where he served as vice mayor. Prior to
attending law school, he was employed by the
Oklahoma State Senate as a research and policy analyst.
District 4
Peggy Stockwell, Norman
Peggy Stockwell lives in Norman, where she
practices family law. She is also a mediator,
arbitrator and guardian ad litem in family law
cases. She takes cases for pro bono and Legal
Aid Services and was awarded the Legal Aid
Pro Bono Award in 1999 for her service. After
the tornadoes in 1999 and in 2003, Ms. Stockwell and her brother arranged for the OBA to
have a presence at the FEMA sites to assist
those affected with legal issues, and for her
efforts, she was awarded the 1999 OBA Out-
1111
standing Service to the Public award. She
received the Mona Salyer Lambird Spotlight
Award in 2005.
Since becoming a lawyer, she has served on
several OBA committees including Professional
Responsibility Tribunal (two terms), Access to
Justice Committee, Budget Committee, Lawyers Helping Lawyers Assistance Program
Committee, Awards Committee and Clients
Security Fund Committee. She was the co-chair
of the Disaster Response and Relief Committee, and she is currently a member of the Family Law Section. She
also served as the
District 5 representative on the OBA Board
of Governors from
2007-2009. She served
as Oklahoma Bar
Association vice president in 2012.
Ms. Stockwell has
also been an active
member of the Cleveland County Bar Association and has
served on the CCBA Executive Committee for
many years. During her tenure as president in
2000, the CCBA received the OBA President’s
Award for Outstanding Participation in OBA
Programs and Projects (and for having a “world
class” hospitality suite). She is currently a
director of the Cleveland County Bar Foundation, and is currently serving as a member on
the Cleveland County Health Department
Board of Health. Ms. Stockwell has also served
on the board of several charitable organizations including Norman Alcohol and Information Center and Health for Friends.
Ms. Stockwell enjoys spending time with
her boxer, Winston, who has been featured in
the Oklahoma Bar Journal with Past President
Reheard.
Ryland Louis Rivas,
Chickasha
Ryland Rivas graduated from the University
of Oklahoma in 1971 with majors in economics
and finance. Mr. Rivas received his J.D. from
OU College of Law in May 1974 and was one
of the last lucky students to take the Oklahoma
1112
Bar exam before graduation. Upon receiving
his law degree, Mr. Rivas opened a private
practice and has continued in that capacity to
the present time. He
married his high
school sweetheart
on August 17, 1968.
They have two children, Meredith and
Ryland II, both of
whom are attorneys.
He is a member of
the Comanche Tribe
and is an experienced trial lawyer
who has served as
first chair in hundreds of jury and
non-jury trials. His experience in jury trial
includes serving as lead counsel in complex
civil cases and cases charging major crimes
including first degree murder.
Mr. Rivas has been involved in the areas of
Indian law and criminal defense throughout
his career in addition to an extensive civil trial
practice in both state and federal courts. He has
served as the general counsel for the Oklahoma
Indian Affairs Commission and was also one of
the first four magistrates named to the Court of
Indian Offenses known widely as the CFR
court, which was the forerunner of tribal courts
as we know them today. Mr. Rivas has also
served on the Chickasha City Council, Grady
County Community Sentencing Council, the
Oklahoma Indian Legal Services Board of
Directors and the Oklahoma Bar Association
Board of Governors.
Mr. Rivas has also served as the Cheyenne
and Arapaho Supreme Court Chief Justice and
General Counsel for the Kiowa Casino Operations Authority. He is a member of the Oklahoma Criminal Defense Lawyer’s Association,
the Oklahoma Bar Foundation, and the Federal
Bar Association. He is admitted to practice in
the State of Oklahoma, the U.S. District Court
for the Western District of Oklahoma, the U.S.
10th Circuit Court of Appeals, Chickasaw Bar
Association and the Delaware Nation Bar Association. Additionally, he serves on the Board of
Directors of the Bank of Verden, a small community bank with branches in Verden and
Newcastle, and is a volunteer for the Oklahoma Lawyers for Heroes program.
Vol. 84 — No. 15 — 5/25/2013
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Vol. 84 — No. 15 — 5/25/2013
1113
A Fair Impartial
Independent Judiciary
The Sovereignty Symposium XXVI
Skirvin Hilton Hotel
June 5 - 6, 2013 u Oklahoma City, Oklahoma
Stephen Mopope (Kiowa)
Flute Dance
Oklahoma Art in Public Places – The Oklahoma Judicial Center
Permanent Collection
The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal
issues could be exchanged in a scholarly, non-adversarial environment. The Supreme Court espouses no view
on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court.
THE SOVEREIGNTY SYMPOSIUM AGENDA
Wednesday Morning
4.5 CLE credits / 1 ethics included
7:30 – 4:30 Registration (Honors Lounge)
8:00 – 8:30 Complimentary Continental Breakfast
10:30 – 10:45 Morning Coffee / Tea Break
12:00 – 1:00 Lunch on your own
8:30 – 5:30 PANEL A: TRIBAL ECONOMIC DEVELOPMENT
Crystal Room
8:30 – 12:30 INITIATIVES FOR ECONOMIC DEVELOPMENT
MODERATOR: DR. JAMES C. COLLARD, Director of Planning
and Economic Development, Citizen Potawatomi Nation
HONORABLE DAVID WALTERS, President, Walters Power
International, Governor of Oklahoma, 1990-1994
DEE ALEXANDER, Senior Advisor on Native American Affairs,
United States Department of Commerce
JONNA KIRSCHNER, ESQ., Executive Director and General
Counsel, Oklahoma Department of Commerce
ROY H. WILLIAMS, President and CEO, Greater Oklahoma City
Chamber of Commerce
GEORGE LEE, Vice-President, Red Devil, Inc., Chair, Oklahoma
Governor’s International Team
JANIE HIPP, ESQ., Director, Indigenous Food and Agriculture
Initiative, University of Arkansas School of Law
TIM GATZ, Director of Capital Programs, Oklahoma
Department of Transportation
JAY ADAMS, Tribal Liaison, Oklahoma Department of
Transportation
8:30 – 12:30 PANEL B: VETERANS
Grand Ballroom B
8:30 – 10:45 ISSUES FACING MILITARY MEMBERS PAST
AND PRESENT
CO-MODERATORS: HONORABLE W. KEITH RAPP,
Oklahoma Court of Civil Appeals
MAJOR GENERAL RITA ARAGON (ret.), (Choctaw/Cherokee),
Oklahoma Secretary of Veterans Affairs
DEBORAH ANN REHEARD, ESQ., Past President (2011),
Oklahoma Bar Association, Member, Judicial Nominating
Commission
COLONEL BRENT WRIGHT ESQ. (Cherokee Nation)
Staff Judge Advocate, Oklahoma National Guard,
138th Fighter Wing [ANG] [ACC]
1114
COLONEL CURTIS ARNOLD, Construction Facilities Manager,
Oklahoma National Guard
10:45 – 12:30 VETERANS AND DIVERSION COURT
PROGRAMS – UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS
MODERATOR: HONORABLE DOUGLAS COMBS, (Muscogee
Creek), Justice, Oklahoma Supreme Court
JOSEPH DUDLEY, Veterans Justice Outreach Specialist,
Oklahoma City Veterans Administration Medical Center
DEVAN BROTHERTON, Tulsa County Veterans
Treatment Court Liaison/Readjustment Counselor, Jack C.
Montgomery Veterans Administration Medical Center
CATHERINE BURTON, ESQ., Assistant District Attorney,
Oklahoma County,
PAULA WILLCOX, Veterans Justice Outreach Specialist
8:30 – 5:30 PANEL C: A FAIR, IMPARTIAL, AND
INDEPENDENT JUDICIARY
Centennial Ballroom
8:30 – 12:30 HISTORICAL ANALYSIS
MODERATOR: HONORABLE PHILLIP LUJAN, (Kiowa/
Taos-Pueblo), Presiding Judge, Citizen Potawatomi Nation
Tribal Court
BRUCE FISHER, Administrative Programs Officer, Oklahoma
Historical Society
TERRY WEST, ESQ., General Counsel, Oklahoma Council on
Judicial Complaints
MICKEY EDWARDS, Director, Aspen Institute-Rodel
Fellowships in Public Leadership
THOMAS S. WALKER, (Wyandotte/Cherokee), Appellate
Magistrate of the Court of Indian Offenses for the
Southern Plains Region of Tribes, District Judge, (ret.),
Brigadier General (ret.), Oklahoma National Guard
CATHY CHRISTENSEN, ESQ., Past President (2012),
Oklahoma Bar Association
1:15 – 2:30 OPENING CEREMONY AND KEYNOTE ADDRESS
Grand Ballroom D-F
MASTER OF CEREMONIES – HONORABLE RUDOLPH
HARGRAVE, Justice, Oklahoma Supreme Court, Retired
PRESENTATION OF FLAGS
HONOR GUARDS:
Absentee Shawnee Veterans Association
Kiowa Black Leggings
Vol. 84 — No. 15 — 5/25/2013
DRUM: SOUTHERN NATION
CAMP CALL: CHIEF GORDON YELLOWMAN, (Cheyenne)
INVOCATION: BISHOP ROBERT E. HAYES JR., United
Methodist Bishop of Oklahoma
WELCOME: HONORABLE MARY FALLIN, Governor of
Oklahoma
WELCOME: JAMES T. STUART, President, Oklahoma Bar
Association
WELCOME AND INTRODUCTION OF JUSTICE
SANDRA DAY O’CONNOR: HONORABLE TOM COLBERT,
Chief Justice, Oklahoma Supreme Court
KEYNOTE: HONORABLE SANDRA DAY O’CONNOR,
Justice, Supreme Court of the United States, Retired
ADDRESS: HONORABLE TOM COLE, (Chickasaw),
United States House of Representatives, Oklahoma District Four
PRESENTATION OF AWARDS, HONORABLE YVONNE
KAUGER, Justice, Oklahoma Supreme Court
HONOR AND MEMORIAL SONGS: SOUTHERN NATION
CLOSING PRAYER: BISHOP WILLIAM WANTLAND,
(Seminole, Chickasaw, Choctaw), Chief Justice, Seminole Nation
Supreme Court, former Bishop of the Diocese of Eau Claire
Wednesday Afternoon
4.5 CLE credits / 1 ethics included
2:30 – 2:45 Tea / Cookie Break for all Panels
2:45 – 5:30 PANEL A : TRIBAL ECONOMIC DEVELOPMENT
(A Continuation of the Morning Panel) Crystal Room
TRIBAL AND LOCAL GOVERNMENT COOPERATION
MODERATOR: DR. JAMES C. COLLARD, Director of
Planning and Economic Development, Citizen Potawatomi
Nation
HONORABLE JOHN A. BARRETT, (Citizen Potawatomi Nation),
Chairman, Citizen Potawatomi Nation
HONORABLE WALLACE COFFEY, (Comanche), Chairman,
Comanche Nation of Oklahoma
D. JAY HANNAH, (Cherokee), Executive Vice President,
Financial Services, BancFirst
HONORABLE FRED L. FITCH, Mayor, Lawton, Oklahoma
HONORABLE WES MAINORD, Mayor, Shawnee, Oklahoma
CAROLYN STAGER, Executive Director, Oklahoma Municipal
League
2:45 – 5:30PANEL B: THE ESSENTIALS OF TRIBAL SELF–
GOVERNMENT AND SOVEREIGNTY
Grand Ballroom A-B
MODERATORS: HONORABLE JERRY GOODMAN, Oklahoma
Court of Civil Appeals
ALEXANDER T. SKIBINE, (Osage), S.J. Quinney Professor of
Law, S.J. Quinney College of Law, University of Utah
ROBERT J. MILLER, (Eastern Shawnee), Professor of Law,
Lewis and Clark Law School
ELIZABETH A. KRONK, (Sault Ste. Marie Tribe of Chippewa
Indians), Associate Professor of Law, University of Kansas School
of Law, Director, Tribal Law and Government Center, Affiliated
Professor, Indigenous Studies
GEORGE T. SKIBINE, ESQ., (Osage), SNR Denton
LINDSAY ROBERTSON, Professor of Law, University of
Oklahoma College of Law, Faculty Director, American Indian
Law and Policy Center, and Associate Director, Inter–American
Center for Law and Culture
CHAD SMITH, ESQ., (Cherokee), Chad Smith Consulting
JOSE FRANCISCO CALI TZAY, (Myan Caqchikel), 2013 Fellow
in Comparative and Indigenous Peoples Law, University of
Oklahoma College of Law
2:45 – 5:30 PANEL C: A FAIR, IMPARTIAL, AND
INDEPENDENT JUDICIARY (A Continuation of the
Morning Panel) - Centennial Ballroom
MODERATOR: HONORABLE PHILLIP LUJAN, (Kiowa/
Taos–Pueblo), Presiding Judge, Citizen Potawatomi Nation
Tribal Court
2:45 – 3:15 ETHICS ADDRESS
HONORABLE JOHN REIF, Vice-Chief Justice, Oklahoma
Supreme Court
Vol. 84 — No. 15 — 5/25/2013
3:15 – 4:45 THE JUDICIAL NOMINATING COMMISSION AND
JUDICIAL RETENTION
CO-MODERATOR: DEBORAH REHEARD, ESQ., Past President
(2011), Oklahoma Bar Association, Member, Judicial Nominating
Commission
DAVID HILL, Kimray Corporation, Former Member, Oklahoma
Judicial Nominating Commission
BARRY SWITZER, Former Member, Oklahoma Judicial
Nominating Commission
JENNY DUNNING, Oklahoma Judicial Nominating
Commission
HEATHER BURRAGE, ESQ., Chairperson, Oklahoma Judicial
Nominating Commission
WILLIAM P. BOWDEN, Major General (ret.), United States
Air Force
4:45 – 5:30 CONVERSATION: HONORABLE SANDRA DAY
O’CONNOR, Justice, Supreme Court of the United States,
Retired
ROBERT HENRY, President, Oklahoma City University
2:45 – 5:30 PANEL D: TRUTH AND RECONCILIATION
MODERATOR: HONORABLE NOMA GURICH, Justice,
Oklahoma Supreme Court
BISHOP ROBERT E. HAYES, JR., Bishop of the United Methodist
Conference of Oklahoma
REVEREND DR. DAVID WILSON, (Choctaw) United Methodist
Conference Superintendent, Oklahoma Indian Missionary
Conference
CHIEF GORDON YELLOWMAN, (Cheyenne), Director,
Cheyenne and Arapaho Tribes Language Program
C. BLUE CLARK, (Muscogee Creek), Professor of History, Native
American Legal Research Center, Oklahoma City University
CHIEF HARVEY PRATT, (Cheyenne), Oklahoma State Bureau
of Investigation
6:30 RECEPTION – UNVEILING OF THE PAINTING
HONORING JUSTICE SANDRA DAY O’CONNOR
Oklahoma Judicial Center – 2100 North
Lincoln Boulevard
Thursday Morning
4 CLE credits / 1 ethics included
7:30 – 4:30 Registration (Honors Lounge)
8:00 – 8:30 Complimentary Continental Breakfast
10:30 – 10:45 Morning Coffee / Tea Break
8:30 – 12:00 PANEL A: GAMING - Grand Ballroom D-E
CO-MODERATORS: MATTHEW MORGAN, (Chickasaw),
Gaming Commissioner, Chickasaw Nation
NANCY GREEN, ESQ., (Choctaw), Green Law Firm
8:30 – 9:15 REMARKS
HONORABLE TRACIE STEVENS, (Tulalip), Chair, National
Indian Gaming Commission
ERNEST STEVENS, JR., (Oneida), Chair, National Indian
Gaming Association
9:15 – 10:30 COMPACT NEGOTIATIONS AND OKLAHOMA
ISSUES UPDATE
JACQUE SECONDINE HENSLEY, (Kaw), Native American
Liaison, Office of Governor Mary Fallin
STEVE MULLINS, ESQ., General Counsel, Office of Governor
Mary Fallin
JEFFREY CARTMELL, ESQ., Deputy General Counsel, Office of
Governor Mary Fallin
10:45 – 12:00 TRIBAL/STATE OF OKLAHOMA RELATIONSHIP –
FEES AND TAXES, PROCEDURES, IMPACT OF GAMING
DEVELOPMENT
WILLIAM NORMAN, ESQ., (Muscogee Creek), Hobbs Straus,
Dean and Walker
GARY PITCHLYNN, ESQ., (Choctaw), Pitchlynn Law Firm
DEAN LUTHEY, ESQ., Gable Gotwals, General Counsel
Oklahoma Indian Gaming Association
10:30 – 11:30 BOOK SIGNING JUSTICE SANDRA DAY
O’CONNOR – OUT OF ORDER: STORIES FROM THE
HISTORY OF THE SUPREME COURT
1115
8:30 – 12:30 PANEL B: CRIMINAL LAW/CROSS DEPUTIZATION
Grand Ballroom A-B
MODERATOR: HONORABLE SANFORD C. COATS, ESQ.,
United States Attorney, Western District of Oklahoma
ARVO MIKKANEN, ESQ., (Kiowa/Comanche), Assistant U.S.
Attorney, Western District of Oklahoma
KURT G. GLASSCO, District Judge, District Court of Tulsa
County
HONORABLE DAVID LEWIS, Chief Judge, Oklahoma Court of
Criminal Appeals
8:30 – 12:00 PANEL C: TRIBAL LANGUAGE PRESERVATION IN
THE TWENTY-FIRST CENTURY - Crystal Room
MODERATOR: HONORABLE CHARLES TATE, (Chickasaw),
Supreme Court Justice for the Kickapoo Tribe of Oklahoma,
former Special Judge, District Court of Carter County
BLAKE WADE, Chief Executive Officer, The American Indian
Cultural Center and Museum, President, Oklahoma Business
Roundtable
JEROD IMPICHCHAACHAAHA’ TATE, (Chickasaw), Composer
CHIEF GORDON YELLOWMAN, (Cheyenne), Director,
Cheyenne and Arapaho Tribes Language Program
HONORABLE GREG BIGLER, (Yuchi), District Judge,
Muscogee-Creek Nation
HOLLY DAVIS, (Cherokee), Cherokee Immersion Charter School
VON ROYAL, Executive Director, One-Net
8:30 – 12:00 PANEL D: THE STATUS OF TRUST ISSUES IN THE
WAKE OF JUDICIAL DECISIONS - Centennial Ballroom
CO-MODERATORS: HONORABLE JOHN REIF, Vice-Chief
Justice, Oklahoma Supreme Court
LEAH HARJO WARE, (Muscogee Creek), ESQ.
STACY LEEDS, (Cherokee), Dean, University of Arkansas School
of Law, Commissioner, United States Trust Commission
MICHAEL SMITH, Deputy Bureau Director, Field Operations,
United States Department of the Interior, Bureau of Indian
Affairs
JIM JAMES, Deputy Director of Field Operations, United States
Department of the Interior, Office of Special Trustee for
American Indians
DAVID SMITH, ESQ., Kilpatrick, Townsend and Stockton
MELODY MCCOY, ESQ., (Cherokee), Native American
Rights Fund
WILLIAM RICE, (Keetoowah), Associate Professor of Law,
University of Tulsa College of Law
MICHAEL ANDERSON, ESQ., (Muscogee Creek)
Thursday Afternoon
4 CLE credits / 0 ethics included
3:30 – 3:45 Tea / Cookie Break for all Panels
1:30 – 3:30 PANEL A: GAMING (A Continuation of the
Morning Panel) - Grand Ballroom D-E
CO-MODERATORS: MATTHEW MORGAN, (Chickasaw),
Gaming Commissioner, Chickasaw Nation
NANCY GREEN, ESQ., (Choctaw), Green Law Firm
1:30 – 3:30 SOVEREIGNTY ISSUES AND INTERNET GAMING
– JURISDICTION, OFF RESERVATION, ECONOMIC
ANALYSIS, SOCIAL GAMING, STRATEGIES
ERNEST STEVENS, JR., (Oneida), Chair, National Indian
Gaming Association
JAMIE HUMMINGBIRD, (Cherokee), Cherokee Nation Gaming
Commission, Director and Chairman of the National Tribal
Gaming Commission Regulators
ALAN MEISTER, PH.D., Principal Economist, Nathan
Associates, Inc.
D. MICHAEL MCBRIDE, III, ESQ., Crowe & Dunlevy
DEAN LUTHEY, ESQ., Gable Gotwals, General Counsel
Oklahoma Indian Gaming Association
3:45 – 5:00 LAND INTO TRUST AND OTHER REGULATORY
ISSUES – CARCIERI, ROLES OF NIGC AND BIA, COMPETING INTERESTS, TAXATION ISSUES, NIGC UPDATE
HONORABLE TRACIE STEVENS, (Tulalip), Chair, National
Indian Gaming Commission
1116
SHEILA MORAGO, (Gila River), Executive Director, Oklahoma
Indian Gaming Association
ELIZABETH HOMER, ESQ. (Osage), Homer Law
GARY PITCHLYNN, ESQ. (Choctaw), Pitchlynn Law Firm
WILLIAM NORMAN, ESQ., (Muscogee Creek), Hobbs Straus,
Dean and Walker
1:30 – 5:00 PANEL B: THE ICWA AND OTHER CHILDREN’S
ISSUES - Crystal Room
MODERATOR: HONORABLE JOHN FISCHER, Oklahoma
Court of Civil Appeals
STEVEN HAGER, ESQ., Oklahoma Indian Legal Services
SUE TATE, Court Improvement Project Coordinator, Oklahoma
Administrative Office of The Courts
SUSAN WORK, ESQ., Assistant Attorney General, Cherokee
Nation of Oklahoma
ANASTASIA PITTMAN, (Seminole), Oklahoma House of
Representatives
KELLY STONER, (Cherokee), Instructor in Law, Director of
the Native American Legal Resources Center, Oklahoma City
University
RITA HART, (Choctaw and Jicarilla Apache), OKDHS Tribal
Program Manager
1:30 – 5:00 PANEL C: THE TRIBAL LAW AND ORDER ACTTHE HOPI PERSPECTIVE - Grand Ballroom A-B
MODERATOR: HONORABLE DAVID LEWIS, Chief Judge,
Oklahoma Court of Criminal Appeals
HONORABLE LEROY SHINGOITEWA, (Hopi), Chairman,
Hopi Tribe, Kykotsmovi, Arizona
JILL ENGEL, ESQ., Chief Prosecutor, Hopi Tribe, Kykotsmovi,
Arizona
ROBERT J. LYTTLE, ESQ., General Counsel, Hopi Tribe,
Kykotsmovi, Arizona
MARILYN TEWA, (Hopi), Mishongnovi Village Representative,
Kykotsmovi, Arizona
MERVYN YOYETEWA, (Hopi), Mishongnovi Village
Representative, Kykotsmovi, Arizona
JOHN TUCHI, Chief Assistant United States Attorney, Phoenix,
Arizona
1:30 – 5:00 PANEL D: DEPARTMENT OF THE INTERIOR SECRETARIAL COMMISSION ON INDIAN TRUST ADMINISTRATION AND REFORM - Centennial Ballroom
The five-member Secretarial Commission will share its drafts
recommendations regarding trust management and
administration, and invite feedback from attendees.
MODERATOR: STACY LEEDS, (Cherokee), Dean, University of
Arkansas School of Law, Commissioner, United States Trust
Commission
DR. PETERSON ZAH, (Diné/Navajo), Last Chairman of
the Navajo Tribal Council, First Elected President of the
Navajo Nation
TEX G. HALL, (Mandan, Hidatsa, and Arikara Nation), Chairman,
Three Affiliated Tribes, Past President of the National Congress
of American Indians, Chairman of the Inter Tribal Economic
Alliance, Chairman of the Great Plains Tribal Chairmen’s
Association
ROBERT ANDERSON, (Minnesota Chippewa Tribe Bois Forte
Band), Professor of Law and Director of the Native American
Law Center at the University of Washington, Oneida Nation
Visiting Professor of Law, Harvard Law School
LIZZIE MARSTERS, Chief of Staff to the Deputy Secretary of
the Interior
A MEETING OF THE DEPARTMENT OF THE INTERIOR
SECRETARIAL COMMISSION ON INDIAN TRUST
ADMINISTRATION AND REFORM WILL BE HELD AT THE
OKLAHOMA JUDICIAL CENTER, 2100 NORTH LINCOLN
BOULEVARD, OKLAHOMA CITY, OKLAHOMA
ON JUNE 7, 2013 AT 8:30 AM
Commission Meetings are open to the public and information
about meetings is posted to:
http://www.doi.gov/cobell/commission/index.cfm
Vol. 84 — No. 15 — 5/25/2013
A Fair Impartial Independent Judiciary
Vol. 84 — No. 15 — 5/25/2013
1117
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Wednesday, May 8, 2013
RE-2012-0332 — Appellant, Coy Ray Cheek,
entered pleas of nolo contendere on April 29,
1994, in Tulsa County District Court Case No.
CF-1993-3257 to Count 1 – Rape, First Degree
and Count 2 – Rape by Instrumentation. He
was sentenced to concurrent terms of twentyfive years with ten years to serve and the balance suspended, with rules and conditions of
probation. Appellant was also fined $500.00 on
Count 1. The State filed an application to revoke
Appellant’s suspended sentence on May 20,
2009. A revocation hearing was held on October
9, 2009, before the Honorable William C. Kellough, District Judge, at which Appellant confessed the State’s allegations. Judge Kellough
continued the matter for sentencing. Following a
sentencing hearing on March 19, 2012, Judge
Kellough sentenced Appellant to fifteen years
with the first five years to be served and the last
ten years suspended, with credit for all time
served and earned. The sentences were ordered
to run concurrently. Appellant appeals from the
revocation of his suspended sentences. The
revocation of Appellant’s suspended sentences
is AFFIRMED; however, the matter is REMANDED to the District Court for re-sentencing. Opinion by: Smith, V.P.J.; Lewis, P.J.: Concur in
Result; Lumpkin, J.: Concur; C. Johnson, J.:
Concur; A. Johnson, J.: Concur.
RE-2011-0711 — On June 14, 2010, Appellant, Donnivan M. West, pled guilty to Indecent or Lewd Acts With a Child Under Sixteen
in Oklahoma County District Court Case No.
CF-2008-2307. He was given a ten year suspended sentence, with rules and conditions of
probation. The State filed an application to
revoke Appellant’s suspended sentence on
June 23, 2011, alleging Appellant (1) failed to
pay supervision fees/court costs, (2) failed to
maintain legal/gainful employment, (3) illegal
possession of marijuana or other drugs, and (4)
failed to attend sex offender treatment. Following a revocation hearing on July 26, 2011, the
Honorable Glenn Jones, District Judge, revoked
Appellant’s suspended sentence in full. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s
1118
suspended sentence is AFFIRMED. Opinion
by: Smith, V.P.J.: Lewis, P.J.: Concur; Lumpkin,
J.: Concur; C. Johnson, J.: Concur; A. Johnson,
J.: Concur.
Friday, May 10, 2013
F-2012-305 — Appellant Michael Kenebrew
was tried by jury for First Degree Murder in
the District Court of Oklahoma County, Case
No. CF-2010-34. The jury found Appellant
guilty of the lesser included crime of Second
Degree Murder (21 O.S.Supp.2009, § 701.8) and
recommended as punishment thirty (30) years
imprisonment. The trial court sentenced accordingly. It is from this judgment and sentence
that Appellant appeals. AFFIRMED. Opinion
by: Lumpkin, J.; Lewis, P.J., concur in result;
Smith, V.P.J., concur in result; C. Johnson, J.,
concur in result; A. Johnson, J., concur.
COURT OF CIVIL APPEALS
(Division No. 1)
110,199 — Kevin Hedrick, Plaintiff/Appellant, vs. The Commissioner of the Department
of Public Safety, State of Oklahoma, Defendant/Appellee. Appeal from the District Court
of McClain County, Oklahoma. Honorable
Gary Barger, Judge. Appellant (Hedrick)
appeals from the trial court’s denial of his
motion to reconsider the dismissal of his petition to set aside the revocation of his drivers
license by Appellee (DPS), or, alternatively,
grant a hardship modification of his license.
We find the trial court incorrectly concluded it
lacked jurisdiction to hear this case. Notwithstanding, we find the court properly ruled in
favor of DPS. The court correctly overruled
Hedrick’s motion for new trial, not because the
court lacked jurisdiction, but because Hedrick’s
proffered evidence was incompetent to sustain
his burden of proof under 47 O.S. Supp. 2006
§6-211(F). Therefore, §6-211(F) prohibited the
trial court from considering the merits of
Hedrick’s appeal. The issue of modification
was not properly before the trial court. The
judgment of the trial court is AFFIRMED.
Opinion by Bell, J.; Buettner, P.J., and Joplin,
C.J., concur.
Vol. 84 — No. 15 — 5/25/2013
110,492 — In Re Marriage of Stillwell. Mathew
D. Stillwell, Petitioner/Appellee, vs. Cynthia
A. Stillwell, Respondent/Appellant. Appeal
from the District Court of Washington County,
Oklahoma. Honorable Carl G. Gibson, Judge.
Respondent/Appellant Cynthia A. Stillwell
(Mother) appeals from the trial court’s order
directing her to pay child support arrearage
from the date Petitioner/Appellee Mathew D.
Stillwell (Father) filed his motion to modify
custody. Father had previously waived child
support, the issue of child support arrearage
was not addressed in the hearing at which the
parties announced their agreement, nor did
Father seek arrearage in his motion to settle
journal entry. Mother was not on notice that
arrearage was at issue and we reverse that part
of the order. AFFIRMED IN PART/REVERSED
IN PART. Opinion by Buettner, P.J.; Joplin, C.J.,
and Bell, J., concur.
110,656 — Sid Vaught and Mary Jane Vaught,
as Co-Guardians of A. R-V., a minor child, Plaintiffs/Appellants, vs. Michael J. Tullius, Defendant/Appellee. Appeal from the District Court
of Oklahoma County, Oklahoma. Honorable
Bryan C. Dixon, Judge. Plaintiffs/Appellants
Sid and Mary Jane Vaught (Vaughts) co-guardians of A.R-V. (Ward), appeal the trial court’s
April 6, 2012 order dismissing with prejudice
their Second Amended Petition. The order is
effectively a default judgment entered as sanction for the Vaughts’ failure to appear at the
pre-trial conference. The Vaughts have not
shown that the trial court abused its discretion
and we affirm the default judgment. AFFIRMED.
Opinion by Buettner, P.J.; Joplin, C.J., and Bell,
J., concur.
110,882 — Sears, Roebuck & Company and
Indemnity Insurance Company of North America, Petitioners, vs. Bobby Ray Tracy and The
Workers’ Compensation Court, Respondents.
Proceeding to Review an Order of a Three-Judge
Panel of The Workers’ Compensation Court.
Employer seeks review of an order of a threejudge panel of the Workers’ Compensation Court
which affirmed the trial court’s order granting
the motion to reopen of Claimant. In this review
proceeding, Employer challenges the lower
court’s judgment as unsupported by objective
medical evidence, and hence, contrary to the
clear weight of the evidence. Claimant’s treating physician, Dr. Blackmon, discerned a
mobile (unattached) “os trigonum,” i.e., a
small, triangularly-shaped bone normally
attached to the anklebone, in the second MRI
Vol. 84 — No. 15 — 5/25/2013
of Claimant’s left ankle conducted in December 2011. The record is bereft of any note of
such a mobile piece of bone in the prior MRI
conducted in December 2010. Although neither
Claimant’s treating physician nor Employer’s
examining physician specifically attribute
Claimant’s change of condition to these notable
differences in the two MRIs, the difference nevertheless stands as objective medical evidence
of a change of condition for the worse since the
last prior order. Based on this evidence, we
cannot say the decision of the Workers’ Compensation Court is so contrary to the clear
weight of the evidence as to warrant the substitution of our judgment on the facts for that of
the Workers’ Compensation Court. SUSTAINED. Opinion by Joplin, C.J.; Buettner, P.J.,
and Bell, J., concur.
111,047 — Terri L. Miller, Plaintiff/Appellant, vs. John William McPherson, Defendant/
Appellee. Appeal from the District Court of
Payne County, Oklahoma. Honorable Phillip
C. Corley, Judge. Plaintiff/Appellant Terri L.
Miller appeals summary judgment in favor of
Defendant/Appellee John William McPherson.
Miller sued McPherson for battery and intentional infliction of emotional distress in 2011.
Miller alleged that McPherson sexually abused
her between 1972 and 1973, when she was six
(6) years old. The trial court granted summary
judgment in favor of McPherson based on
Oklahoma’s statute of limitations. We hold that
Montana’s statute of limitations applies, and
according to Montana law, Miller’s claim is not
time barred. There is a substantial controversy
as to when Miller discovered or reasonably
should have discovered a causal connection
between her injuries and the childhood sexual
abuse. The judgment of the trial court is reversed
and remanded for further proceedings.
REVERSED AND REMANDED. Opinion by
Buettner, P.J.; Joplin, C.J., and Bell, J., concur.
111,158 — Mercy Hospital (Own Risk #17461),
Petitioner, vs. Sheila D. Humphrey and The
Workers’ Compensation Court, Respondents.
Proceeding to Review an Order of The Workers’ Compensation Court. Honorable William
R. Foster, Judge. Employer seeks review of the
trial court’s order granting benefits for an accidental personal injury arising out of and in the
course of the employment to Claimant. Employer first complains that, to the extent the threejudge panel vacated the trial court’s order
based on a finding that Employer waived
assertion of the affirmative defense of “inter-
1119
vening injury,” the three-judge panel erred as a
matter of both fact and law, because Employer
claimed as an affirmative defense in at least
five Form 10s that Claimant’s “injury occurred
outside of [the] employment,” and preserved
for adjudication the issue of the defense of
intervening injury, i.e., an injury not causally
related to the employment. Moreover, says
Employer in its second proposition, Claimant
did not raise the issue of “waiver” of defenses
either in her Petition for Review to the threejudge panel, or in oral argument before the
three-judge panel, and hence, waived any right
to complain, if any she ever had. By five separately filed Form 10s in the present case, Employer denied that Claimant sustained an accidental
personal injury arising out of and in the course
of the employment, and asserted as an “affirmative defense” that Claimant’s “injury occurred
outside of [the] employment.” Claimant never
raised the issue of Employer’s purported waiver
of defenses for consideration, either before the
trial court or the three-judge panel. Employer’s
denial of the occurrence of a compensable injury
arising out of and in the course of the employment, coupled with its asserted “affirmative
defense” that Claimant’s “injury occurred outside of [the] employment,” constituted a denial
of one of the essential elements of Claimant’s
case, i.e., that she suffered an injury “arising
out of the and in the course of” her employment, on which she bore the burden of proof.
We further hold Employer thereby sufficiently
raised the issue of non-job-related causation to
preserve its right to present evidence refuting
Claimant’s evidence of job-related causation.
To the extent the three-judge panel held
Employer waived its right to present evidence
of some other non-job-related cause of Claimant’s injury, and so based its decision to vacate
the trial court’s order denying benefits, we
hold the three-judge panel erred as a matter of
both law and fact. VACATED AND REMANDED. Opinion by Joplin, C.J.; Buettner, P.J., and
Bell J., concur.
(Division No. 2)
Thursday, May 9, 2013
110,272 — ONB Bank & Trust Co., Plaintiff/
Appellant, v. Clearwater Development, LLC,
an Oklahoma limited liability company; Clearwater Development Group, LLC, an Oklahoma
limited liability company; Oklahoma Contractor’s Supply, LLC; Johnson & Associates, Inc.;
Brewski Construction, Inc., Defendants/Appellees. Appeal from Order of the District Court of
1120
Oklahoma County, Hon. Lisa T. Davis, Trial
Judge. ONB Bank and Trust Company appeals
the decision of the district court granting summary adjudication to Brewski Construction,
Inc., and Johnson & Associates, Inc., concerning the validity and priority of mechanic’s and
materialmen’s liens upon certain real property
located in Oklahoma County, Oklahoma owned
by Defendant Clearwater Development Group,
LLC. Upon review of the evidentiary materials
presented by the parties, this Court finds the
district court committed no error in granting
summary adjudication to Brewski for foreclosure of its original Lien and such judgment is
AFFIRMED. The district court erred as a matter
of law in granting summary adjudication to
Johnson for foreclosure of its July 23, 2008 Lien,
as such lien expired by operation of law pursuant to 42 O.S.2001 §§ 172 and 177, and such judgment is REVERSED. The district court committed no error in granting summary adjudication
to Johnson for foreclosure of its August 24, 2009
Lien and such judgment is AFFIRMED. AFFIRMED IN PART AND REVERSED IN PART.
Opinion from Court of Civil Appeals, Division II
by Fischer, P.J.; Barnes, V.C.J., and Wiseman, J.,
concur.
109,320 (Companion to Case No. 110,235) –
In re the Marriage of: Lizabeth Anne Reetz,
Petitioner/Appellee, v. Jeffrey Rahn Reetz, Respondent/Appellant. Appeal from Orders of
the District Court of Tulsa County, Oklahoma,
Hon. Carl Funderburk, Trial Judge. This appeal
arises from the parties’ divorce proceedings.
Respondent/Appellant (Husband) appeals
from the trial court’s Orders denying his motion
for new trial and awarding Petitioner/Appellee (Wife) attorney fees and costs. Husband
argues the trial court erred by admitting certain summary exhibits, by miscalculating his
income, by failing to conduct a hearing on his
motion for new trial, by ordering him to be
responsible for certain debt in addition to
ordering him to pay Wife support alimony, and
by awarding Wife attorney fees. Having concluded the findings of the trial court are not
clearly against the weight of the evidence and
the trial court did not abuse its discretion, we
affirm the divorce decree and the Orders and
remand this case to the trial court for a determination of the amount of attorney fees and
costs to be awarded Wife for the reasonable
expenses incurred on appeal. AFFIRMED AND
REMANDED FOR FURTHER PROCEEDINGS.
Opinion from Court of Civil Appeals, Division
Vol. 84 — No. 15 — 5/25/2013
II, by Barnes, V.C.J.; Fischer, P.J., and Wiseman,
J., concur.
110,235 (Companion to Case No. 109,320) –
In re the Marriage of: Lizabeth A. Reetz, Petitioner/Appellee, v. Jeffrey R. Reetz, Respondent/Appellant. Appeal from an Order of the
District Court of Tulsa County, Oklahoma,
Hon. Carl Funderburk, Trial Judge. This appeal
arises from the parties’ divorce proceedings.
Respondent/Appellant (Husband) appeals
from the trial court’s Order granting Petitioner/Appellee’s (Wife) motion to dismiss Husband’s motion to modify alimony and child
support payments. Husband argues the trial
court erred and violated his due process rights
by failing to hold an evidentiary hearing on his
motion to modify, and he argues that the
appearance of partiality on the part of the trial
court is pervasive. Based on our review of the
facts and applicable law, we conclude the trial
court did not abuse its discretion or violate
Husband’s due process rights by deciding the
motion without a hearing. We further conclude
there is no appearance of impropriety or partiality in the proceedings. Therefore, we affirm
the Order. We remand this case to the trial
court for a determination of the amount of
attorney fees and costs to be awarded Wife for
the reasonable expenses incurred on appeal.
AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of
Civil Appeals, Division II, by Barnes, V.C.J.;
Fischer, P.J., and Wiseman, J., concur.
109,967 — El Reno Rod, Gun & Development
Corporation, and Earl D. Mills, individually
and on behalf of all others similarly situated,
Plaintiffs/Appellants, v. Mack Energy Company, an Oklahoma corporation, Mack Oil Company, an Oklahoma corporation, Enerwest
Trading Co., L.C., and Jath Oil Company, an
Oklahoma corporation, f/k/a Fullwood Oil
Company and Enerwest Trading Company,
Defendants/Appellees. Appeal from an Order
of the District Court of Canadian County, Oklahoma, Hon. Gary E. Miller, Trial Judge. Plaintiffs/Appellants, who allege they are underpaid
royalty owners, appeal the trial court’s Order
denying their motion to certify a class action
against Defendants/Appellees. The trial court,
upon finding “Plaintiffs’ claims are not typical
of the claims of the class as a whole” and “no
common issue[s] . . . extend across the entire
class,” determined that the statutory prerequisites of “typicality” (12 O.S. Supp. 2009 §
Vol. 84 — No. 15 — 5/25/2013
2023(A)(3)) and “commonality” (12 O.S. Supp.
2009 § 2023(A)(2)) for class action certification
are not satisfied and, therefore, denied certification. Based on our review of the record and
applicable law, we conclude the trial court did
not err and we summarily affirm the trial
court’s Order pursuant to Oklahoma Supreme
Court Rule 1.202(d), 12 O.S.2011, ch. 15, app. 1,
because the comprehensive and well-reasoned
Order of the trial court adequately explains the
decision. SUMMARILY AFFIRMED UNDER
RULE 1.202(d). Opinion from Court of Civil
Appeals, Division II, by Barnes, V.C.J.; Fischer,
P.J., and Wiseman, J., concur.
111,205 — David Bowers, Plaintiff/Appellant, vs. Oklahoma Department of Rehabilitation Services, Defendant/Appellee. Appeal
from an order of the District Court of Oklahoma County, Hon. Barbara G. Swinton, Trial
Judge, sustaining the Department’s motion to
dismiss Bowers’ declaratory judgment action.
Bowers asked the trial court to declare him a
“career teacher” within the meaning of 70 O.S.
§ 6-101.3(4) thereby entitling him to all benefits
associated therewith. Department sought dismissal of the action claiming that the ruling by
the administrative officer that Bowers was a
probationary teacher, not a career teacher, was
an agency decision “beyond the reach of the
district court’s declaratory judicature.” After
review of the record, we conclude the trial
court did not have jurisdiction to hear the
declaratory judgment action pursuant to 12
O.S.2011 § 1651. Although Bowers claims there
is no order, judgment, or decree, the absence of
an order, judgment, or decree stems from his
attempt to circumvent the administrative process. He must exhaust his administrative remedies before seeking redress in the courts.
AFFIRMED. Opinion from the Court of Civil
Appeals, Division II, by Wiseman, J.; Barnes,
V.C.J., and Fischer, P.J., concur.
(Division No. 3)
109,437 — State of Oklahoma, ex rel. Department of Transportation, Plaintiff/Appellant,
vs. Veterans of Foreign War, Post 1320, Defendant/Appellee, and The Creek County Treasurer, Defendant. Appeal from the District Court
of Creek County, Oklahoma. Honorable Lawrence W. Parish, Judge. In this condemnation
action Appellant (DOT) appeals from a judgment awarding Appellees (Landowners) $26,130
[jury verdict of $175,000 less Commissioners
Award of $148,870] with 6% pre-judgment inter-
1121
est thereon for the taking of the Landowners’
real property. DOT exercised its right of eminent
domain pursuant to 69 O.S. 2011 §1203 to acquire
Landowners’ property for the purposes of
improvements to State Highway 66 in Creek
County. The parties’ central dispute concerns the
existence of and/or extent of damage caused to
the parking lot and ceiling tiles of the meeting
hall. The record shows the parking lot was damaged within the temporary easement area as
well as adjacent thereto in connection with the
condemnation construction activity. Insomuch
as the applicable constitutional as well as eminent domain law specifically calls for the inclusion of any injury to the remaining part of the
property not taken in the determination of just
compensation due landowners, we find no
error in the admission of relevant evidence
pertaining to damage to the parking lot and the
jury assessment of same in reaching its determination of just compensation. The causation
of the ceiling tile damage and Landowners’
mitigation of damages are facts to be found by
the jury in reaching its decision on the damages
to the remainder for inclusion in its ultimate
determination of the total amount of compensation due Landowners. We therefore find no error
in the admission of evidence pertaining to the
ceiling tile damages. Further, we discern no
error in the trial court’s denial of DOT’s Motion
for Directed Verdict. The record contains more
than a scintilla of evidence demonstrating the
causal connection between the construction
activities and the damage to the parking lot and
the ceiling of the building and further shows the
pertinent values and repair costs associated with
those areas adjacent to the taken property. In
addition, we find the instructions read to the
jury to be clear, adequately instructive of Oklahoma law, not misleading, and incapable of
being construed as making any impression upon
the jury regarding payments previously made.
We also find no error in the trial court’s awarding pre-judgment interest at 6%. AFFIRMED.
Opinion by Mitchell, J.; Hetherington, P.J., and
Goree, J., concur.
111,143 — In the Matter of K.B., T.B., S.H.,
S.H., N.H. and L.H., alleged deprived children,
State of Oklahoma, Petitioner/Appellee, vs.
S.C.H., Minor Child/Appellant. Appeal from
the District Court of Oklahoma County, Oklahoma. Honorable Gregory J. Ryan, Trial Judge.
Appellant S.C. H., one of six allegedly-deprived
minor children in this pre-adjudication/ parental rights termination matter, appeals two trial
court rulings. After an emergency hearing, the
1122
court ordered immediate removal of S.C.H.
from a non-relative kinship placement. Foster
parents and S.C.H. moved for reconsideration
of the removal ruling, and following a hearing,
the trial court denied their motions. Based on
the record evidence and the absence of any
legal error or abuse of discretion, both orders
are affirmed. AFFIRMED. Opinion by Hetherington, P.J.; Mitchell, J., and Goree, J., concur.
111,439 — Travis L. Archer, Plaintiff/Appellant, vs. State of Oklahoma ex rel., Department
of Public Safety, Defendant/Appellee. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Donald L. Easter, Trial
Judge. In this Oklahoma Department of Public
Safety (DPS) administrative driver’s license
revocation appeal, the licensee Travis Lynn
Archer (Archer) appeals from district court
order upholding revocation. Archer argues illegal warrantless arrest, resulting in a DUI charge
following an accident in a public parking lot,
and improper driver’s license restriction of his
modified driving privilege by the trial court.
We affirm the trial court’s order upholding
revocation. AFFIRMED. Opinion by Hetherington, P.J.; Mitchell, J., and Goree, J., concur.
(Division No. 4)
110,108 — Ryann C. Baumann, Individually
and as Pesonal Representative of the Estate of
Randy Michael Baumann, Plaintiff/Appellant,
v. Cactus Drilling Company, L.L.C., an Oklahoma limited liability company, Defendant,
and Stallion Oilfield Services LTD, a foreign
limited partnership; Stallion Interests, L.L.C.;
Stallion Heavy Haulers, L.P.; Stallion Acquisition, L.L.C.; and Greg Koch, an individual,
Defendants/Appellees. Appeal from an Order
of the District Court of Beckham County, Hon.
Floyd Douglas Haught, Trial Judge. Plaintiff
appeals a judgment entered on a jury verdict
for the defendants, Stallion Oil Field Services,
LTD, Stallion Interests, L.L.C., Stallion Heavy
Haulers, L.P., Stallion Acquisition, L.L.C. (collectively Stallion) and Greg Koch (Koch). The
plaintiff and the remaining defendant, Cactus
Drilling Company, L.L.C., (Cactus) settled after
the trial and Cactus is not a party to this appeal.
Plaintiff’s contention that the Unavoidable
Accident and Intervening Cause Instructions
are not supported by the evidence is rejected.
The Record reflects that Stallion and Koch presented evidence to justify the giving of both
instructions. Moreover, Plaintiff has not shown
that the verdict would have been different had
Vol. 84 — No. 15 — 5/25/2013
the Unavoidable Accident Instruction or the
Intervening Cause Instruction been refused.
Therefore, no reversible error exists by virtue
of having instructed the jury on Unavoidable
Accident and Intervening Cause. Plaintiff has
not overcome 20 O.S.2011, § 3001.1 as to either
challenged instruction. AFFIRMED. Opinion
from Court of Civil Appeals, Division IV, by
Rapp, J.; Thornbrugh, P.J., and Goodman, J.,
concur.
ORDERS DENYING REHEARING
(Division No. 3)
Wednesday, May 8, 2013
110,360 — Renaissance Norman Investors,
L.L.C., Plaintiff/Appellee, vs. NS-Norman,
L.L.C., Defendant/Appellant. Plaintiff/Appellee’s Petition for Rehearing and Supporting
Brief, filed April 18, 2013, is DENIED.
Vol. 84 — No. 15 — 5/25/2013
110,854 (comp. w/110,853)— Melita Davis,
Plaintiff/Appellant, vs. McKinney & Stringer,
P.C., Patrick Kernan, Ronald Walker, Eaton &
Sparks, P.L.L.C., Gary A. Eaton, and Robert S.
Post, Defendants/Appellees. Plaintiff/Appellant’s Petition for Rehearing, filed April 30,
2013, is DENIED.
110,853 (comp. w/110,854)— Melita Davis,
Plaintiff/Appellant, vs. McKinney & Stringer,
P.C., Patrick Kernan, Ronald Walker, Eaton &
Sparks, P.L.L.C., Gary A. Eaton, and Robert S.
Post, Defendants/Appellees. Plaintiff/Appellant’s Petition for Rehearing, filed April 30,
2013, is DENIED.
1123
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The Judicial Nominating Commission seeks applicants to fill the following judicial office:
Associate District Judge
Fourteenth Judicial District
Pawnee County, Oklahoma
This vacancy is created by the retirement of the Honorable Matthew D. Henry effective
August 1, 2013.
To be appointed an Associate District Judge, an individual must be a registered voter
of the applicable judicial district at the time (s)he takes the oath of office and
assumes the duties of office. Additionally, prior to appointment, the appointee must
have had a minimum of two years experience as a licensed practicing attorney, or as
a judge of a court of record, or combination thereof, within the State of Oklahoma.
Application forms can be obtained on line at www.oscn.net by following the link to
the Oklahoma Judicial Nominating Commission or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 North Lincoln, Suite 3, Oklahoma City, OK 73105, (405)
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address no later than 5:00 p.m., Friday, May 31, 2013. If applications are mailed,
they must be postmarked by midnight, May 31, 2013.
Heather Burrage, Chairman
Oklahoma Judicial Nominating Commission
1124
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experience is a plus. Please submit résumés by email to
lawyers@piercecouch.com.
AV RATED DOWNTOWN TULSA FIRM seeks associate 0-3 years experience. The firm has a diverse practice featuring civil litigation, estate and tax planning, as
well as family law. Drafting, brief writing, and some
courtroom work can be expected. The successful candidate will have a positive attitude and the ability to effectively communicate and then follow through with
assignments. Salary commensurate with experience
and ability. Please submit a résumé to Savage O’Donnell
Affeldt Weintraub & Johnson, 110 West 7th, Suite 1010,
Tulsa, OK 74119, Attn: Adam Scott Weintraub or e-mail
to pls@savagelaw.cc.
LOOKING FOR 3 HARD WORKING, DEDICATED
LAWYERS as partners for a new law firm in Metro/
South OKC/Norman area. Serious inquiries only. All
inquiries kept strictly confidential. Please email inquiries to: coklawoffice@gmail.com.
1126
ADMINISTRATIVE OFFICER – LEGAL/INSPECTOR
GENERAL. Make a difference in people’s lives at the
Department of Mental Health and Substance Abuse
Services – Central Office. This position performs administrative, professional and highly technical duties
for executive level positions or various management
areas; may provide supervision or direction to assigned
staff. Duties include the ability to handle the administration of legal and investigatory matters, multi-task
while arranging for special conferences and/or meetings; attend meetings to transcribe proceedings for distribution to all staff; make travel arrangements; prepare
and submit travel claims; prepare administrative, statistical and/or fiscal documents requiring expert level
knowledge of Microsoft Office and modern office
methods. Salary $34,500+. Requires: Completion of the
curriculum requirements for a bachelor’s degree and
one (1) year of professional or highly complex clerical
experience; OR an equivalent combination of education and experience. ODMHSAS offers excellent benefit
& retirement packages; Applicants must submit a résumé that includes job title and announcement number
2013-18 CO along with a copy of the applicant’s most
recent performance evaluation to humanresources@
odmhsas.org. Reasonable accommodation to individuals with disabilities may be provided upon request.
Application period: 5/16/13 – 5/30/13. EOE.
LEGAL SECRETARY NEEDED for small law firm near
downtown. Minimum 5 years experience in family law,
litigation, corporate and estate planning. Must be detailoriented and have excellent organizational skills. Candidate will be utilizing secretarial and paralegal skills.
Competitive salary based on experience. Send résumé,
references and salary requirements in confidence to “Box
M,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
FIRST AMERICAN TITLE INSURANCE COMPANY
seeks attorney for title examination and underwriting
counsel in Oklahoma City. 3 to 5 years in real estate
law and title examination preferred. All contacts will
be kept confidential. Compensation commensurate
with experience. Email résumé and references to
hchapman@firstam.com.
FOR SALE
SPECTACULAR CLIFF-SIDE HOME on the south end
of Grand Lake for sale. An easy weekday commute
from Tulsa or weekender from OKC. Single-story brick
traditional with four bedrooms, four baths, three-car
garage, two kitchens, sprinkler system, alarm system.
Mature trees, private setting and flawless water view
from main living area and master. Back yard features
expansive multi-tiered decking, cabana with brick fireplace and flower gardens. Perfect for entertaining on a
“grand” scale. $569,000. Also available, 30 x 30 adjacent
garage for playthings; small office building in Disney,
Okla. Call 918-782-7071.
BEACHFRONT CONDO IN GALVESTON: 2/2; Living and Master face the beach; fully furnished; Riviera
I; out-of-state heirs ready to make deal. debrathomas@
cox.net or 405-742-4507.
Vol. 84 — No. 15 — 5/25/2013
Vol. 84 — No. 15 — 5/25/2013
1127

Volume 84 No. 15 May 25, 2013

Transcription

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