Oklahoma Bar Journal Vol

Volume 82 u No. 21 u August 13, 2011 1890 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 OFFICERS & BOARD OF GOVERNORS Deborah A. Reheard, President, Eufaula Cathy M. Christensen, President-Elect, Oklahoma City events Calendar Reta Strubhar, Vice President, Piedmont Allen M. Smallwood, Immediate Past President, Tulsa AUGUST 2011 Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami 17 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Renée DeMoss, Tulsa Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Gerald C. Dennis, Antlers Glenn A. Devoll, Enid Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 Steven Dobbs, Oklahoma City OBA Women in Law Committee Meeting; 3:30 p.m.; Oklahoma Bar O. Chris Meyers II, Lawton Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Lou Ann Moudy, Henryetta D. Scott Pappas, Stillwater Deborah Bruce (405) 528-8625 David A. Poarch Jr., Norman 18 OBA Justice Commission Meeting; 2 p.m.; Oklahoma Bar Center, Ryland L. Rivas, Chickasha Oklahoma City; Contact: Drew Edmondson (405) 235-5563 Susan S. Shields, Oklahoma City Roy D. Tucker, Muskogee, OBA Bar Association Technology Committee Meeting; 3 p.m.; Chairperson, OBA/Young Lawyers Division Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Gary Clark BAR Center Staff (405) 744-1601 John Morris Williams, Executive Director; 19 Oklahoma Bar Foundation Trustee Meeting; 1 p.m.; Oklahoma Gina L. Hendryx, General Counsel; Donita Bourns Douglas, Director of Educational Bar Center, Oklahoma City and OSU Tulsa; Contact: Nancy Norsworthy Programs; Carol A. Manning, Director of (405) 416-7070 Communications; Craig D. Combs, Director of Administration; Travis Pickens, Ethics Counsel; 20 OBA Law-related Education We the People Training; 8:30 a.m.; Jim Calloway, Director of Management Assistance Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell Program; Beverly Petry Lewis, Administrator (405) 416-7024 MCLE Commission; Jane McConnell, Coordinator Law-related Education; John Burchell, Information 22 OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Services Manager; Loraine Dillinder Farabow, Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Debbie Maddox, Ted Rossier, Assistant General Contact: D. Michael O’Neil Jr. (405) 239-2121 Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos 24 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar and Krystal Willis, Investigators Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Manni Arzola, Debbie Brink, Stephanie Burke, Patricia Podolec (405) 760-3358 Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Brandon Haynie, 25 OBA Men Helping Men Support Group; 5:30 p.m.; The Center Suzi Hendrix, Misty Hill, Debra Jenkins, for Therapeutic Interventions, Suite 510, Tulsa; RSVP to: Kim Reber Amy Kelly, Jeff Kelton, Durrel Lattimore, (405) 840-3033 Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Lori Oklahoma Bar Foundation Grants and Awards Committee Rasmussen, Tracy Sanders, Mark Schneidewent, Reviews; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Robbin Watson, Laura Willis & Roberta Yarbrough Nancy Norsworthy (405) 416-7070 EDITORIAL BOARD 26 OBA Board of Governors Meeting; Vinita, Oklahoma; Contact: Editor in Chief, John Morris Williams, News John Morris Williams (405) 416-7000 & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: OBA Communications Committee Meeting; 12 p.m.; Oklahoma Dietmar K. Caudle, Lawton; Judge Sheila Bar Center, Oklahoma City and OSU Tulsa; Contact: Mark Hanebutt Condren, Claremore; Sandee Coogan, Norman; (405) 948-7725 Emily Duensing, Tulsa; Erin L. Means, Enid; Pandee Ramirez, Okmulgee; Leslie D. Taylor, For more events go to www.okbar.org/calendar Oklahoma City; Joseph M. Vorndran, Shawnee; January Windrix, Poteau The Oklahoma Bar Association’s official website: NOTICE of change of address (which must be www.okbar.org in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All ll rights reserved. Copyright© 2011 Oklahoma Bar Association. or ads, news stories, articles and all mail items The design of the scales and the “Oklahoma Bar Association” encircling the should be sent to the Oklahoma Bar Association, scales are trademarks of the Oklahoma Bar Association. Legal articles carried P.O. Box 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association (405) 416-7000 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Toll Free (800) 522-8065 FAX (405) 416-7001 a month in january, February, March, April, May, August, Septem- Continuing Legal Education (405) 416-7006 ber, October, November and December and bimonthly in June and Ethics Counsel (405) 416-7055 July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, General Counsel (405) 416-7007 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- Law-related Education (405) 416-7005 homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Lawyers Helping Lawyers (800) 364-7886 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Mgmt. Assistance Program (405) 416-7008 tions are $55 per year except for law students registered with the Mandatory CLE (405) 416-7009 Oklahoma Bar Association, who may subscribe for $25. Active mem- OBJ & Communications (405) 416-7004 ber subscriptions are included as a portion of annual dues. Any Board of Bar Examiners (405) 416-7075 opinion expressed herein is that of the author and not necessar- Oklahoma Bar Foundation (405) 416-7070 ily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1891 1892 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Oklahoma Bar Association

table of contents August 13, 2011 • Vol. 82 • No. 21

page

1891 Events Calendar

1894 Index to Court Opinions

1896 Supreme Court Opinions

1900 OBA Board of Governors Vacancies

1903 Court of Civil Appeals Opinions

1940 Disposition of Cases Other Than by Publication

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1893 Index To Opinions Of Supreme Court

2010 OK 52 IN THE MATTER OF THE STRIKING OF NAMES OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONPAYMENT OF 2010 DUES SCBD No. 5654...... 1896

2010 OK 53 IN THE MATTER OF THE STRIKING OF NAMES OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONCOMPLOANCE WITH MANDATO- RY CONTINUING LEGAL EDUCATION REQUIREMENTS FOR THE YEAR 2009 SCBD No. 5655...... 1897

Index To Opinions of Court of Civil Appeals

2011 OK CIV APP 91 STATE OF OKLAHOMA ex rel. CHARLES W. WRIGHT and RACHEL LAWRENCE MOR, individuals and TAXPAYER CITIZENS OF THE STATE OF OKLAHOMA, Plaintiffs/Appellants, v. OKLAHOMA CORPORATION COM- MISSION, THE PETROLEUM STORAGE TANK DIVISION OF THE CORPORA- TION COMMISSION, THE PETROLEUM STORAGE TANK RELEASE ENVIRON- MENTAL CLEANUP INDEMNITY FUND OF THE DIVISION, COMMISSIONERS DENISE A. BODE, JEFF CLOUD, and BOB ANTHONY, and BROOKS MITCHELL, ROBYN STRICKLAND, and DEE PORTER, Defendants/Appellees. No. 108,897...... 1903

2011 OK CIV APP 89 SHELLY JO GREGORY, now CAMPBELL, Petitioner/Appellant, v. RICKY LYNN GREGORY, Respondent/Appellee, and State of Oklahoma, Depart- ment of Human Services, Child Support Enforcement, A Necessary Party/Interested Party. No. 108,644...... 1905

2011 OK CIV APP 90 ANN DRUMMOND WOOLLEY; ANN DRUMMOND WOOLLEY, TRUSTEE OF THE WALTER WOOLLEY, JR. REVOCABLE TRUST DATED 6/9/88; and ANN DRUMMOND WOOLLEY, TRUSTEE OF THE ANN DRUMMOND WOOLLEY TRUST U/T/A DATED 11/30/98; FIVE WOOLLEY, L.L.C.; and 7c LAND & MINERALS COMPANY, Appellants, v. THE CORPORATION COMMIS- SION OF THE STATE OF OKLAHOMA, COMPOSED OF THE HONORABLE BOB ANTHONY, CHAIRMAN, THE HONORABLE JEFF CLOUD, VICE CHAIRMAN; AND THE HONORABLE DANA L. MURPHY, COMMISSIONER; AND PONTO- TOC PRODUCTION COMPANY, INC., Appellees. No. 108,686...... 1907

2011 OK CIV APP 88 SCANLINE MEDICAL, L.L.C., d/b/a HUMMEL MEDICAL, an Oklahoma Limited Liability Company, Plaintiff/Appellant, v. CHRIS BROOKS, an individual, Defendant/Appellee. No. 108,287...... 1909

2011 OK CIV APP 87 STILLWATER NATIONAL BANK & TRUST COMPANY, a national banking association, Plaintiff/Appellee, v. Justin A. Cook, d/b/a Cook & Associates Engineering, Inc., and Cook & Associates Engineering, Inc., an Oklahoma corporation, Defendants, PSA-DEWBERRY, INC., a foreign corporation, Defendant/Appel- lant, PSA-Dewberry, Inc., Third-Party Plaintiff, v. Broken Arrow Properties, L.L.C., Third-Party Defendant No. 108,209...... 1912

2011 OK CIV APP 86 BRIAN GALARZA, Petitioner/Appellant, v. EUNICE DENISE GALARZA, Respondent/Appellee. No. 107,820...... 1915

2011 OK CIV APP 83 ERICK L. REIMERS, Plaintiff/Appellant, v. THE STATE OF OKLA- HOMA, ex rel. DEPARTMENT OF CORRECTIONS and THE CITY OF BETHANY, Defendants/Appellees. No. 107,440...... 1918

1894 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 2011 OK CIV APP 85 THE HOWARD FAMILY CHARITABLE FOUNDATION, INC.; HOWARD INVESTMENTS, LLC; ROBERT E. HOWARD, II, an Individual; MARI- LYN PATRICIA KELLY, an Individual; SCOTT and CARLITA BEAUVAIS, Husband and Wife; GREG and JILL CASTRO, Husband and Wife; JIMMIE M. RICHARDSON, an Individual; DENNIS DAVIS, an Individual; DON KOEBELIN, an Individual; CHRIS FLEMING, an Individual; DAVID SHEAR, an Individual; BRIAN LORENTZ, an Individual; GEAD INVESTMENTS, LLC; DAVID HUDIBURG and STEVE HUDI- BURG, as TRUSTEES OF THE PAUL HUDIBURG 1997 DYNASTY TRUST; STEVE HUDIBURG, an Individual; HARRY PATTERSON, an Individual; BOBBY MASTER- SON, an Individual; HAL STEINKE, an Individual; METROPOLITAN AUTO DEAL- ERS ASSOCIATION, a Trade Group; PETER and CRYSTAL HODGES, Husband and Wife; AARON LONDON, an Individual; and KEN WILKINS, an Individual, Plain- tiffs/Appellants, v. MARK S. TRIMBLE, Individually; PHIDIPPIDES CAPITAL MANAGEMENT, LLC; MF GLOBAL, INC.; and ARCHWAY TECHNOLOGY PART- NERS, L.L.C., Defendants/Appellees. No. 107,796...... 1922

2011 OK CIV APP 84 MAXXUM CONSTRUCTION, INC., an Oklahoma corporation, Plaintiff/Appellant, v. FIRST COMMERCIAL BANK, an Oklahoma bank, Defen- dant/Appellee, Khoi Vu and My Do, Defendants. Case No. 107,586...... 1932

2011 OK CIV APP 74 ROBERT N. GOSS, JR. and BARBARA A. GOSS, husband and wife; MICHAEL D. JOHNSTON and KAY M. JOHNSTON, husband and wife; and JAMES S. BECK, Trustee of The Beck Family Trust Dated The 19th Day of August, 1986, Plain- tiffs/Appellees/Counter-Appellants, v. ROSEMARY SUE MITCHELL, Defendant/ Appellant/Counter-Appellee. No. 106,928...... 1933

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF larry d. wagener, SCBD #5749 TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if Larry D. Wagener should be reinstated to active membership in the Oklahoma Bar Association. Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Okla- homa City, Oklahoma, at 9:30 a.m. on Monday, August 29, 2011. Any person wishing to appear should contact Gina Hendryx, General Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007, no less than five (5) days prior to the hearing. PROFESSIONAL RESPONSIBILITY TRIBUNAL

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1895 Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2010 OK 52 deceased before the July 1, 2010 order of suspension was entered, the Oklahoma Bar Asso- IN THE MATTER OF THE STRIKING OF ciation is directed to remove the suspensions NAMES OF MEMBERS OF THE and all references thereto from their records. OKLAHOMA BAR ASSOCIATION FOR Additionally, this Court finds that the name NONPAYMENT OF 2010 DUES of Phillip Windom Offill, Jr. should not be SCBD No. 5654. July 28, 2011 stricken because a disciplinary proceeding is pending against him in this Court (SCBD ORDER STRIKING NAMES No. 5674). The Board of Governors of the Oklahoma Bar It is therefore ordered that the attorneys Association filed an Application for Order named in Exhibit A, attached hereto, are hereby Striking Names of attorneys from the Oklaho- stricken from the Roll of Attorneys for failure ma Bar Association’s membership rolls and to pay their dues as members of the Associa- from the practice of law in the State of Okla- tion for the year 2010. homa for failure to pay dues as members of the Oklahoma Bar Association for the year 2010. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 28th DAY OF Pursuant to the Rules Creating and Control- July, 2011 ling the Oklahoma Bar Association (Rules), 4 O.S. 2001, ch. 1, app. 1, art. VIII, § 2, the Okla- /s/ Steven W. Taylor homa Bar Association members named on CHIEF JUSTICE Exhibit A, attached hereto, were suspended Taylor, C.J., Colbert, V.C.J., and Kauger, Watt, from membership in the Oklahoma Bar Asso- Winchester, Reif, Combs, and Gurich, JJ., concur. ciation and from the practice of law in the state of Oklahoma by this Court’s Order of July 1, Edmondson, J., absent. 2010, for failure to pay their 2010 dues in accordance with article VIII, section 2 of the Rules. EXHIBIT A Based on its application, this Court finds that Robert Allen Benningfield, OBA No. 716 the Board of Governors determined at its June 10912 East 11a Place 10, 2011 meeting that none of the Oklahoma Tulsa, OK 74128 Bar Association members named on Exhibit A, attached hereto, has applied for reinstatement Michael Keith Brookreson, OBA No. 18264 within one year of suspension. The Board of 221 W. Lexington Ave. Governors further declared that the members Poplar Bluff, MO 63901 set out on Exhibit A, attached hereto, ceased to Judi A. Coover, OBA No. 13492 be members of said Association and that their 503 Collins Ave. names should therefore be stricken from its P.O. Box 433 membership rolls and the Roll of Attorneys. Portland, PA 18351 This Court further finds that the actions of the Board of Governors of the Oklahoma Bar Asso- William M. Covington III, OBA No. 16917 ciation are in compliance with the Rules. Perry & Covington PA 2110 20th St. This Court further finds that the following Gulfport, MS 39501 members listed on the Oklahoma Bar Associ- ations application were deceased before the Brian J. Davis, OBA No. 20931 order of suspension was entered on July 1, 3001 Expressway Dr., Ste 400 2010, and this Court finds that their names Islandia, NY 11749 should not be stricken from the roll of attor- Timothy Charles Edwards, OBA No. 19451 neys: Diane Pylant File, Paulette Locke John- 1123 S. Florence Pl. son, and Susan L. Michaels. Since they were Tulsa, OK 74104

1896 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Hershel Leon Franklin, OBA No. 3098 2010 OK 53 360 Living Springs IN THE MATTER OF THE STRIKING OF Goldsby, OK 73093 NAMES OF MEMBERS OF THE Patrick A. Guile, OBA No. 20989 OKLAHOMA BAR ASSOCIATION FOR 7224 Walnut Creek Dr. NONCOMPLOANCE WITH MANDATORY Oklahoma City, OK 73142 CONTINUING LEGAL EDUCATION REQUIREMENTS FOR THE YEAR 2009 Gary Lee Hobaugh, OBA No. 4244 2154 S. 85th E. Ave. SCBD No. 5655. July 28, 2011 Tulsa, OK 74129 ORDER STRIKING NAMES Gerri Anne Inman, OBA No. 17878 2021 S. Lewis Ave., Ste. 340 The Board of Governors of the Oklahoma Bar Tulsa, OK 74104-5716 Association filed an Application for an Order Striking Names of attorneys from the Oklaho- Rhonda Jean Jones, OBA No. 16099 ma Bar Association’s membership rolls and 114 Butler from the practice of law in the State of Okla- Anna, TX 75409-7686 homa for failure to comply with the Rules for Heather Kaylie Little, OBA No. 21265 Mandatory Continuing Legal Education, 5 P.O. Box 2731 O.S.2001 & Supp. 2002, ch. 1, app. 1-B, for the Oklahoma City, OK 73101 year 2009. Harry Lowell Moore Jr., OBA No. 10551 Pursuant to Rule 6(d) of the Rules for Man- 1850 Arroya St. datory Continuing Legal Education, the Okla- Colorado Springs, CO 80906 homa Bar Association members named in Exhibit A, attached hereto, were suspended Pamela Kay Padley, OBA No. 6851 from membership in the Association and the 8834 N. Rockwell Dr. practice of law in the State of Oklahoma by Oklahoma City, OK 73132 Order of this Court on July 1, 2010, for non- Donald Mark Pearson, OBA No. 11603 compliance with Rules 3 and 5 of the Rules for 4657 S. Saint Louis Ave. Mandatory Continuing Legal Education for the Tulsa, OK 74105-4817 year 2009. Based on its application, this Court finds that the Board of Governors determined Elisabeth M. Randahl, OBA No. 20726 at their June 10, 2011, meeting that none of the 203 Choctaw Rd. Oklahoma Bar Association members named on Louisville, KY 40207-1652 Exhibit A, attached hereto, has applied for rein- Pamela Lewis Shaw, OBA No. 22009 statement within one year of the suspension 7907 S. Yale Ave., Apt. C order. Further, the Board of Governors declared Tulsa, OK 74136-9069 that the members set out on Exhibit A, attached hereto, ceased to be members of the Oklahoma Mary M. Stitt, OBA No. 14326 Bar Association and their names should there- P.O. Box 282 fore be stricken from its membership rolls and Conroe, TX 77305 the Roll of Attorneys. This Court finds that the Paul Robert Weinstein, OBA No. 9445 actions of the Board of Governors of the Okla- 1314 Texas Ave., Ste. 1309 homa Bar Association are in compliance with Houston, TX 77002 the Rules. Stephanie Marie Westhuis, OBA No. 19595 This Court further finds that Paulette Locke 7705 S. Yale Ave., #807 Johnson who is listed on the Oklahoma Bar Tulsa, OK 74136 Associations application was deceased before the order of suspension was entered on July 1, Elvis L. Wheaton, OBA No. 10151 2010, and this Court finds that her name should 21234 E. 39th Pl. not be stricken from the roll of attorneys. Since Broken Arrow, OK 74014 she was deceased before the July 1, 2010 order Richard Paul Wickes, OBA No. 9584 of suspension was entered, the Oklahoma Bar 19th Fl. Linklater Association is directed to remove the suspen- 1345 Avenue of the Americas sions and all references thereto from her record. New York, NY 10105 Additionally, this Court finds that the name of

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1897 Phillip Windom Offill, Jr. should not be stricken Patrick A. Guile, OBA No. 20989 because a disciplinary proceeding is pending 7224 Walnut Creek Dr. against him in this Court (SCBD No. 5674). Oklahoma City, OK 73142 It is therefore ordered that the attorneys Gary Lee Hobaugh, OBA No. 4244 named in Exhibit A, attached hereto, are hereby 2154 S. 85th E. Ave. stricken from the Roll of Attorneys for failure Tulsa, OK 74129 to comply with the Rules for Mandatory Con- Gerri Anne Inman, OBA No. 17878 tinuing Legal Education for the year 2009. 2021 S. Lewis Ave., Ste. 340 DONE BY ORDER OF THE SUPREME Tulsa, OK 74104 5716 COURT IN CONFERENCE THIS 28th DAY OF Heather Kaylie Little, OBA No. 21265 JULY, 2011. P.O. Box 2731 /s/ Steven W. Taylor Oklahoma City, OK 73101 CHIEF JUSTICE Gloyd Lynn McCoy, OBA No. 5924 Taylor, C.J., Colbert, V.C.J., and Kauger, Watt, 600 Skyridge Trl. Winchester, Reif, Combs, and Gurich, JJ., concur. Noble, OK 73068 8117 Edmondson, J., absent. Elisabeth M. Randahl, OBA No. 20726 203 Choctaw Rd. EXHIBIT A Louisville, KY 40207 1652 D’Arwyn Keith Daniels, OBA No. 22037 Stephanie Marie Westhuis, OBA No. 19595 5214 Pine Arbor 7705 S. Yale Ave., #807 Houston, TX 77066 Tulsa, OK 74136 Timothy Charles Edwards, OBA No. 19451 Elvis L. Wheaton, OBA No. 10151 1123 S. Florence Pl. 21234 E. 39th Pl. Tulsa, OK 74104 Broken Arrow, OK 74014

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Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1899 BAR NEWS

2012 OBA Board of Governors Vacancies Nominating Petition: 5 p.m. Friday, Sept. 2, 2011 OFFICERS Summary of Nominations Rules President-Elect Not less than 60 days prior to the Annual Meeting, Current: Cathy M. Christensen, Oklahoma City 25 or more voting members of the OBA within the Mrs. Christensen automatically becomes Supreme Court Judicial District from which the OBA president Jan. 1, 2012 member of the Board of Governors is to be elected (One-year term: 2012) that year, shall file with the Executive Director, a Nominee: James T. Stuart, Shawnee signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Vice President Governors for and from such Judicial District, or Current: Reta M. Strubhar, Piedmont one or more County Bar Associations within the (One-year term: 2012) Judicial District may file a nominating resolution Nominee: Peggy Stockwell, Norman nominating such a candidate. BOARD OF GOVERNORS Not less than 60 days prior to the Annual Meeting, 50 or more voting members of the OBA Supreme Court Judicial District One from any or all Judicial Districts shall file with the Current: Charles W. Chesnut, Miami Executive Director, a signed petition nominating a Craig, Grant, Kay, Nowata, Osage, Ottawa, candidate to the office of Member-At-Large on the Pawnee, Rogers and Washington counties Board of Governors, or three or more County Bars (Three-year term: 2012-2014) may file appropriate resolutions nominating a can- Nominee: Linda S. Thomas, Bartlesville didate for this office. Supreme Court Judicial District Six Not less than 60 days before the opening of the Current: Martha Rupp Carter, Tulsa Annual Meeting, 50 or more voting members of Tulsa County the Association may file with the Executive Direc- (Three-year term: 2012-2014) tor a signed petition nominating a candidate for Nominee: Kimberly K. Hays, Tulsa the office of President-Elect or Vice President or Supreme Court Judicial District Seven three or more County Bar Associations may file Current: Lou Ann Moudy, Henryetta appropriate resolutions nominating a candidate Adair, Cherokee, Creek, Delaware, Mayes, for the office. Muskogee, Okmulgee and Wagoner counties If no one has filed for one of the vacancies, (Three-year term: 2011-2014) nominations to any of the above offices shall be Nominee: Vacant received from the House of Delegates on a petition Member-At-Large signed by not less than 30 delegates certified to Current: Steven Dobbs, Oklahoma City and in attendance at the session at which the elec- (Three-year term: 2011-2014) tion is held. Nominee: Nancy Parrott, Oklahoma City See Article II and Article III of OBA Bylaws for complete information regarding offices, positions, nominations and election procedure. Vacant positions will be filled at the OBA Annual Meeting Nov. 2-4. Terms of the present OBA officers and governors listed will terminate Dec. 31, 2011. Nomination and resolution forms can be found at www.okbar.org.

1900 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 L A S T C H A N C E!!

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Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1901 1902 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Court of Civil Appeals Opinions

2011 OK CIV APP 91 for money spent by “petroleum storage tank owners or operators for the reasonable, neces- STATE OF OKLAHOMA ex rel. CHARLES sary and integral costs of an environmental W. WRIGHT and RACHEL LAWRENCE cleanup of storage tank leaks.” Plaintiffs main- MOR, individuals and TAXPAYER tain the claims against the Indemnity Fund CITIZENS OF THE STATE OF were not proper and that “no money was due OKLAHOMA, Plaintiffs/Appellants, v. and owing on the claims and that the Commis- OKLAHOMA CORPORATION sion should recover the public monies paid out COMMISSION, THE PETROLEUM in the settlements.” STORAGE TANK DIVISION OF THE CORPORATION COMMISSION, THE ¶3 Title 62 O.S.2001 § 373 allows taxpayers to PETROLEUM STORAGE TANK RELEASE bring an action in the name of the State to ENVIRONMENTAL CLEANUP recover funds they allege were paid out or INDEMNITY FUND OF THE DIVISION, transferred by an officer of the State pursuant COMMISSIONERS DENISE A. BODE, JEFF to “any unauthorized, unlawful, fraudulent, or CLOUD, and BOB ANTHONY, and void contract.” However, this statute requires BROOKS MITCHELL, ROBYN the taxpayer, as a prerequisite to bringing such STRICKLAND, and DEE PORTER, action, to issue a “written demand signed, Defendants/Appellees. verified and served . . . by ten resident taxpayers.” 62 O.S.2001 § 373. No. 108,897. April 18, 2011 ¶4 Plaintiffs filed a motion for partial sum- APPEAL FROM THE DISTRICT COURT OF mary judgment seeking a trial court determi- OKLAHOMA COUNTY, OKLAHOMA nation that the written demand containing the HONORABLE BRYAN C. DIXON, taxpayers’ signatures complied with the above TRIAL JUDGE statute. The Oklahoma Corporation Commis- sion, the Petroleum Storage Tank Division of AFFIRMED the Corporation Commission, Indemnity Fund, James R. Moore, Sue Wycoff, MOORE & Denise A. Bode, Jeff Cloud, Bob Anthony, VERNIER, PC, Oklahoma City, Oklahoma, for Brooks Mitchell, Robyn Strickland, and Dee Plaintiffs/Appellants, Porter (Defendants/Appellees)2 responded contending Plaintiffs’ motion should be denied Kieran D. Maye, Jr., MILLER DOLLARHIDE, and the case dismissed because the trial court Oklahoma City, Oklahoma, for Defendants/ had no jurisdiction to proceed when statutory Appellees. requirements had not been met. The trial court JANE P. WISEMAN, JUDGE: found the qui tam demand to be defective because one of the ten required signatures had ¶1 State of Oklahoma ex rel. Charles W. not been verified in the presence of a “notary Wright and Rachel Lawrence Mor (Plaintiffs) public or someone who can give an oath.” appeal the trial court’s dismissal of their case Because the taxpayers’ demand was defective, for lack of subject matter jurisdiction. After the trial court denied Plaintiffs’ motion for par- reviewing the record and finding no reversible 1 tial summary judgment and dismissed the case error, we affirm. without prejudice3 finding it had no jurisdic- BACKGROUND SUMMARY tion to proceed in the case. ¶2 As stated in the petition, this qui tam ¶5 Plaintiffs appeal. action is brought by two former employees of STANDARD OF REVIEW the Oklahoma Corporation Commission asking the trial court to rescind several settlement ¶6 “When reviewing a trial court’s dismissal agreements directing reimbursement from the of an action an appellate court examines the Petroleum Storage Tank Release Environmen- issue de novo.” Rogers v. Quiktrip Corp., 2010 tal Cleanup Indemnity Fund (Indemnity Fund) OK 3, ¶ 4, 230 P.3d 853, 855-56. The issue on

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1903 appeal is whether the trial court has subject BTW, 2010 OK 69, ¶ 12, 241 P.3d 199, 205. “It is matter jurisdiction. This is an issue of law we presumed that the law-making body has review de novo, without deference to the trial expressed its intent in a statute’s language and court. See Reeds v. Walker, 2006 OK 43, n.9, 157 that it intended what it so expressed.” Id. “If P.3d 100. the meaning of a statute is plain and unam- ANALYSIS biguous, it will not be subjected to interpretation by reference to rules of judicial construc- ¶7 After reviewing the briefs and hearing tion but will instead receive the effect its lan- arguments by the parties, the trial court issued guage dictates.” Id. “Only if legislative intent its order4 which fully explains its decision. The cannot be ascertained from the language of a trial court found in part as follows: statute, as in cases of ambiguity, are rules of That the statute requires that a signature statutory interpretation to be invoked and to a qui tam demand be verified and verifi- employed.” Id. “The determination of legisla- cation requires that it be signed and sworn tive intent controls statutory interpretation by before an officer who takes an oath. the judiciary.” Id. That because James Hunt did not sign ¶11 The change in statutory language clearly the qui tam demand before a notary public demonstrates the Legislature’s intent that the or someone who can give an oath, the written demand be “signed, verified, and Plaintiffs presented a qui [tam] demand served.” Black’s Law Dictionary defines “veri- with nine proper signatures not the required fication” as “[a] formal declaration made in the ten. Therefore, this Court has lost jurisdic- presence of an authorized officer, such as a tion in this matter. notary public, by which one swears to the truth of the statements in the document.” Black’s THEREFORE, this Court overrules Plain- Law Dictionary 1556 (7th ed. 1999); see also tiffs’ Motion for Partial Summary Judg- Priddy v. State, 1995 OK CR 76, ¶ 1, 908 P.2d ment and dismisses this case without prej- 808, 811 (Lumpkin, J., concurring in result) udice. This Order is a final and appealable (“Verified” when used in a statute “ordinarily order as defined in Section 953 of Title 12 of the Oklahoma Statutes. imports a verity attested by the sanctity of an oath. It is frequently used interchangeably with ¶8 Plaintiffs argue that they have substan- ‘sworn.’ That process has consisted of requir- tially complied with the statute’s purpose ing the person taking the oath to appear before which is “to notify the relevant public officials a person authorized to administer oaths to that there is an allegation of misfeasance so execute the oath.”). This generally constituted they can take action,” even though one tax- the law on this point prior to the Legislature’s payer did not sign the qui tam demand before enactment in 2002 of 12 O.S. § 426. someone authorized to administer an oath. ¶12 Citing § 426, Plaintiffs argue that verifi- ¶9 Before the 2000 amendment, the statute cation does not require swearing before a stated in relevant part: notary or even swearing at all. Section 426 pro- Upon the refusal, failure, or neglect of the vides that, when by law, a matter is required to proper officers of the state . . . after written be evidenced or established by “sworn state- demand made upon them by ten resident tax- ment, declaration, verification, certificate, oath, payers of the state . . . . or affidavit, in writing of the person making the same,” the matter may with equal force and 62 O.S.1991 § 373 (emphasis added). The 2000 amendment changed the statute’s language to effect be evidenced or established by the per- read: son’s written unsworn statement made under penalty of perjury in substantially the follow- Upon the refusal, failure, or neglect of the ing form: proper officers of the state . . . after written demand, signed, verified and served upon them I state under penalty of perjury by ten resident taxpayers of the state . . . under the laws 62 O.S.2001§ 373 (emphasis added). of Oklahoma that the foregoing is true and correct. ¶10 “The goal of inquiry into the meaning of a statutory enactment is to ascertain and give ______effect to the intent of the legislature.” In re (Date and Place) (Signature)

1904 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 12 O.S. Supp. 2010 § 426. We agree with Plain- 5. State ex rel. Mitchell v. City of Shawnee, 1934 OK 203, ¶ 15, 31 P.2d 552, 554; see also State ex rel. Twist v. Bailey, 1956 OK 103, ¶ 4, 295 P.2d tiffs that the legal equivalent to sworn verifica- 763, 764.. tion may be effected by unsworn statement made under penalty of perjury pursuant to the 2011 OK CIV APP 89 dictates of § 426. This does not, however, cure SHELLY JO GREGORY, now CAMPBELL, the defect confronting Plaintiffs: the question- Petitioner/Appellant, v. RICKY LYNN able tenth signature is neither notarized nor GREGORY, Respondent/Appellee, and State made in compliance, substantial or otherwise, of Oklahoma, Department of Human with § 426. Services, Child Support Enforcement, A ¶13 To invoke the trial court’s subject matter Necessary Party/Interested Party. jurisdiction in a qui tam action, § 373 first No. 108,644. June 3, 2011 requires that a written demand be issued. State ex rel. Fent v. State ex rel. Oklahoma Water Res. APPEAL FROM THE DISTRICT COURT OF Bd., 2003 OK 29, n.13, 66 P.3d 432 (finding the CARTER COUNTY, OKLAHOMA written demand pursuant to § 373 is a “precon- HONORABLE THOMAS K. BALDWIN, dition of bringing a qui tam action” and “that a JUDGE written demand first be made upon the proper state officials to take specified action. The state REVERSED AND REMANDED officials must refuse or otherwise fail to take John M. Stuart, STUART & HAMMOND, the requested action” before commencing a qui P.C., Duncan, Oklahoma, for Plaintiff/ tam action). Because one of the required ten signatures contained neither a verification nor Appellant, its equivalent, the written demand was defec- David O. Blankenship, Ardmore, Oklahoma, tive. As a result, as it correctly concluded, the for Defendant/Appellee. trial court had no jurisdiction over the action. ROBERT D. BELL, CHIEF JUDGE: ¶14 The Supreme Court has held that actions based on § 373 are penal in nature subject to ¶1 In this post-divorce proceeding, Petition- strict construction, that is, they are “to be er/Appellant, Shelley Jo Gregory, now Camp- strictly construed from the standpoint of the bell (Mother), appeals the trial court’s order alleged wrongdoer.”5 For this reason, Plaintiffs’ terminating the child support obligation of mid-litigation attempt to remedy the defect in Respondent/Appellee, Ricky Lynn Gregory the written demand is impermissible under (Father), for the parties’ disabled adult child. this provision. The trial court also denied Mother’s counterclaim for child support pursuant to 43 O.S. CONCLUSION 2001 §112.1A. We reverse and remand for fur- ¶15 After a thorough review of the record ther proceedings. and applicable law, we conclude the trial court’s ¶2 Mother and Father were divorced in 1995. dismissal for lack of jurisdiction is correct. The parties have two children, M.G. and R.G. It Finding no reversible error, we affirm the trial is undisputed that R.G., born June 29, 1990, has court’s order. severe, life-long physical and mental disabili- ¶16 AFFIRMED. ties. In 1995, Father was ordered to pay child support for R.G. On March 26, 2008, Father BARNES, P.J., concurs; FISCHER, V.C.J., not filed a motion to modify and terminate his participating. child support obligation for R.G. upon her 18th birthday. Father alleged his child support obli- 1. This appeal is governed by Supreme Court Rule 1.36, 12 O.S. Supp. 2010, ch.15, app.1 and proceeds without additional appellate gation should be terminated because R.G. was briefing. entitled to governmental assistance. Mother 2. The individual appellees were sued in their official capacity. Several other Defendants are not parties to this appeal. objected to Father’s motion arguing R.G. was 3. In its response to Plaintiffs’ motion for partial summary judg- still in high school and, thus, she was entitled ment, the Corporation Commission argued that the lack of ten verified signatures on the taxpayers’ demand deprived the trial court of juris- to Father’s support until her 20th birthday. On diction to hear Plaintiffs’ case and asked that it be dismissed for that September 29, 2008, the court found R.G. was reason. 4. It should be noted that Item No. 14 in the appellate record, which entitled to support by her parents under §112(E) is the trial court’s order before us on appeal, was inadvertently until she graduated from high school or she stamped “Stricken Per Supreme Court Order, Dated ______”; this should have been Item No. 15 which the Supreme Court struck from reached 20 years of age, whichever occurred the record by its order of January 4, 2011. first. This order was not appealed.

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1905 ¶3 On May 18, 2010, Father filed a motion to occurs first. Full-time attendance shall terminate his child support obligation upon include regularly scheduled breaks from R.G.’s 20th birthday. Mother filed a counter- the school year. No hearing or further claim to continue Father’s child support obli- order is required to extend support pursu- gation under §112.1A due to R.G.’s existing ant to this subsection after the child reaches disability. Father sought dismissal of Mother’s the age of eighteen (18) years. counterclaim on the basis that the court previously decided his support obligation for R.G. Section 112(E) clearly provides the child sup- would terminate when she reached the age of port termination language (i.e. “until the child 20. After considering the parties’ motions and graduates from high school or until the age of the attorneys’ arguments, the trial court termi- twenty (20) years, whichever occurs first”) is nated Father’s obligation to pay child support excepted by the provisions of §112.1A. for R.G. upon her 20th birthday and denied ¶7 Section 112.1A is a special statute concern- Mother’s counterclaim. Mother appeals from ing a parent’s obligation to support his or her that order. mentally or physically disabled child for an ¶4 We will not reverse the trial court’s deci- indefinite period, even if that child has reached sion in a child support modification proceed- the age of majority. Section 112.1A(B) provides ing unless there has been a showing of an that with respect to such disabled child: abuse of discretion or that the trial court’s deci- B. 1. The court may order either or both sion is against the clear weight of the evidence. parents to provide for the support of a Williamson v. Williamson, 2005 OK 6, ¶5, 107 child for an indefinite period and may P.3d 589, 591. determine the rights and duties of the par- ¶5 Mother argues the trial court abused its ents if the court finds that: discretion and entered an order contrary to law a. the child, whether institutionalized or when it terminated Father’s child support obli- not, requires substantial care and personal gation for his disabled adult child pursuant to supervision because of a mental or physi- §112(E), without allowing the presentation of cal disability and will not be capable of testimony and evidence in support of the con- self-support, and tinuation of child support under §112.1A. Father counters since Mother relied upon b. the disability exists, or the cause of the §112(E) during the 2008 modification proceed- disability is known to exist, on or before ing to impose his child support obligation until the eighteenth birthday of the child. R.G. reached 20 years of age, and since there 2. A court that orders support under this has been no change in circumstances, the trial section shall designate a parent of the child court properly concluded Mother is prevented, or another person having physical custody by issue preclusion, from re-litigating and or guardianship of the child under a court extending his child support obligation under order to receive the support for the child. §112.1A. The court may designate a child who is ¶6 The explicit statutory language at §112(E) eighteen (18) years of age or older to negates Father’s argument. This section receive the support directly. provides: ¶8 According to §112.1A(D)(1) and (3), a suit E. Except as otherwise provided by Section under this section may be filed regardless of 112.1A of this title, any child shall be enti- the age of the child, as an independent cause of tled to support by the parents until the action or joined with any other claim or reme- child reaches eighteen (18) years of age. If a dy provided by this title, and as a suit for child is regularly enrolled in and attending modification in a court of continuing jurisdic- high school, as set forth in Section 11-103.6 tion. Based on the foregoing, we hold it is irrel- of Title 70 of the Oklahoma Statutes, other evant that Mother initially relied upon §112(E) means of high school education, or an during the 2008 modification proceeding, but alternative high school education program now relies on §112.1A for the continuation of as a full-time student, the child shall be Father’s child support obligation. Section entitled to support by the parents until the 112.1A provides Mother with the right to pur- child graduates from high school or until sue a counterclaim for continuing child sup- the age of twenty (20) years, whichever port for their adult disabled child at any time.

1906 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 ¶9 After reviewing the applicable law, we TRUST DATED 6/9/88; and ANN hold the trial court abused its discretion when DRUMMOND WOOLLEY, TRUSTEE OF it terminated Father’s child support obligation THE ANN DRUMMOND WOOLLEY and denied Mother’s counterclaim without TRUST U/T/A DATED 11/30/98; FIVE first providing her with the opportunity to WOOLLEY, L.L.C.; and 7c LAND & present evidence in support of the continua- MINERALS COMPANY, Appellants, v. THE tion of Father’s child support obligation under CORPORATION COMMISSION OF THE §112.1A. We therefore reverse the trial court’s STATE OF OKLAHOMA, COMPOSED OF order and remand this issue for further consid- THE HONORABLE BOB ANTHONY, eration. CHAIRMAN, THE HONORABLE JEFF ¶10 It is undisputed R.G. is not capable of CLOUD, VICE CHAIRMAN; AND THE self support, but the parties disagree as to HONORABLE DANA L. MURPHY, whether R.G. is eligible for sufficient govern- COMMISSIONER; AND PONTOTOC mental financial assistance to reduce or elimi- PRODUCTION COMPANY, INC., nate Father’s support obligation. On remand Appellees. the trial court is directed to hold an evidentiary No. 108,686. April 29, 2011 hearing to consider the following factors in §112.1A(E) in determining the amount of APPEAL FROM THE CORPORATION Father’s child support obligation: COMMISSION OF THE STATE OF OKLAHOMA In determining the amount of support to be paid after a child’s eighteenth birthday, the AFFIRMED IN PART, REVERSED IN PART specific terms and conditions of that sup- AND REMANDED port, and the rights and duties of both par- Gregory L. Mahaffey, Raven V. McNeal-Nou- ents with respect to the support of the mane, MAHAFFEY & GORE, P.C., Oklahoma child, the court shall determine and give City, Oklahoma, for Appellants, special consideration to: Michele Craig, Deputy General Counsel, 1. Any existing or future needs of the adult Oklahoma City, Oklahoma, for Appellee, Okla- child directly related to the adult child’s homa Corporation Commission, Richard K. mental or physical disability and the sub- Books, Eric L. Huddleston, ELIAS, BOOKS, stantial care and personal supervision BROWN & NELSON, P.C., Oklahoma City, directly required by or related to that dis- Oklahoma, for Appellee, Pontotoc Production, ability; Company, Inc. 2. Whether the parent pays for or will pay CAROL M. HANSEN, JUDGE: for the care or supervision of the adult child or provides or will provide substan- ¶1 Appellants, Ann Drummond Woolley and tial care or personal supervision of the affiliated entities (collectively Woolley), seek adult child; review of an order of the Oklahoma Corpora- tion Commission (Commission) granting the 3. The financial resources available to both application of Appellee, Pontotoc Production parents for the support, care, and supervi- Company, Inc. (Pontotoc) to pool the McAles- sion of the adult child; and ter and Hunton common sources of supply 4. Any other financial resources or other underlying a drilling and spacing unit (Unit) resources or programs available for the consisting of the southeast quarter of the north- support, care, and supervision of the adult east quarter of Section 23, Township 2 North, child. Range 7 East, Pontotoc County, Oklahoma. Woolley challenges the order to the extent the ¶11 REVERSED AND REMANDED. Commission (1) refused to dismiss the applica- HETHERINGTON, P.J., and HANSEN, J., tion to pool the Hunton common source of concur. supply, (2) allocated costs between the McAles- ter and Hunton common sources of supply, 2011 OK CIV APP 90 and (3) refused to allow Woolley to participate ANN DRUMMOND WOOLLEY; ANN in force-pooled acreage obtained in two previ- DRUMMOND WOOLLEY, TRUSTEE OF ous pooling orders where Woolley was not THE WALTER WOOLLEY, JR. REVOCABLE named as a party as a result of a title error. We

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1907 affirm as to the first two issues, and reverse [Woolley’s] request to share in force pooled and remand as to the third issue. acreage covered by prior Orders of this Commission is denied because Protestants ¶2 Woolley owns both leasehold and mineral were not a party to the original pooling. interests in the Unit. In May 2008, Pontotoc However, Protestants are allowed to share completed drilling the Woolley #1-23 Well in any force pooled acreage available from (Well) in the west half of the Unit. It drilled to subsequent wells. [Woolley’s] Motion to a depth of 4,100 feet to test the Hunton but Dismiss the Hunton common source of found it dry; it then completed the Well at 1,631 supply is denied. feet in the McAlester. The Commission entered the first pooling order for the Unit on July 21, Woolley appeals from this order. 2008, pooling both the McAlester and Hunton ¶6 The Oklahoma Constitution, Art. IX, §20, common sources of supply. Pontotoc did not sets forth the standard of review for orders of name Woolley as a respondent in the first pool- the Corporation Commission: ing because its title information did not reflect Woolley owned interests in the Unit. The Com- [R]eview of appealable orders of the Cor- mission entered the second pooling order in poration Commission shall be judicial only, March 2009, adding World Export Services as a and in all appeals involving an asserted respondent after Pontotoc’s new title opinion violation of any right of the parties under showed it owned 11.39% of the Unit. World the Constitution of the United States or the Export Services’ successor elected to partici- Constitution of the State of Oklahoma, the pate in the Unit. Court shall exercise its own independent judgment as to both the law and the facts. ¶3 Pontotoc filed the third application for In all other appeals from orders of the Cor- pooling naming Woolley as respondent after poration Commission the review by the receiving a revised title opinion showing Wool- Supreme Court shall not extend further ley owned an interest Pontotoc previously than to determine whether the Commis- believed it owned. Woolley protested the appli- sion has regularly pursued its authority, cation and moved to dismiss the application as and whether the findings and conclusions to the Hunton. The parties tried the issues of the Commission are sustained by the before an administrative law judge (ALJ) on law and substantial evidence October 7, 2009. The ALJ’s report recommended (1) granting the application, (2) denying the ¶7 Woolley’s first contention is the Commis- motion to dismiss the Hunton formation, (3) sion erred in refusing to dismiss Pontotoc’s adopting the cost allocation method proposed application for pooling as to the Hunton com- by Pontotoc, and (4) granting Woolley’s request mon source of supply. She argues the pooling to share in force-pooled acreage. statute, 52 O.S.Supp.2007 §87.1(e), does not contemplate pooling a known dry hole, and ¶4 Both sides appealed the report of the ALJ. Pontotoc seeks to do so only to saddle Woolley An appellate referee, after hearing oral argu- with sharing the costs of drilling a dry hole or ment and reviewing the record, recommended to force Woolley out of the Hunton for future the ALJ’s report be affirmed but modified to wells. She argues Pontotoc abandoned the allow Woolley to make a casing point election Hunton formation as a dry hole and therefore based upon Pontotoc’s lack of objection. In dis- all rights under previous pooling orders had cussing the sharing of force-pooled acreage, terminated. the appellate referee reasoned the right to share in force-pooled acreage was an equitable right ¶8 The pooling statute, §87.1(e), authorizes that flowed from the pooling order, and the pooling by the unit, not by the wellbore. A late pooling of Woolley’s interest was a change force-pooling order unitizes the working inter- in conditions or knowledge of conditions that est in the entire unit as to the named forma- allowed modification of the pooling order. She tions. Amoco Production Co. v. Corporation concluded Woolley’s request upon pooling Comm’n, 1986 OK CIV APP 16, 751 P.2d 203, should be considered the initial request for 206. The status of a single well in the unit does sharing of force-pooled acreage. not affect the status of the unit; the spacing unit remains pooled until the pooling order ceases ¶5 The Commission adopted the recommenda- by its own terms to be of force and effect or tions of the appellate referee, except as to the until the last well in the unit is plugged and sharing of force-pooled acreage. Its order stated, abandoned. The Commission regularly pur-

1908 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 sued its authority in hearing and ruling on ¶12 The sharing of acreage acquired from Pontotoc’s application to pool Woolley’s inter- those who decline to participate in a well is an est in the Hunton. Whether Pontotoc had aban- equitable right of the participants in the well. doned the Hunton formation was a question of Rex Oil Refining, Inc. v. Shirvan, 1967 OK 127, fact on which the Commission’s ruling was 443 P.2d 82, 88. The right flows from the pool- supported by competent evidence Pontotoc ing order although it is not expressly estab- intended to drill another unit well in the lished by the pooling order. Rather, it is estab- Hunton. We find no error in the Commission’s lished by the election to participate in the well. refusal to dismiss the application as to the Pontotoc cannot equitably claim the right to Hunton. Woolley’s share of the force-pooled acreage vested in itself under the original pooling order II by virtue of its own mistake in believing it ¶9 Woolley’s second contention is the Com- owned Woolley’s working interest. The Com- mission’s allocation of costs between the McAl- mission erred as a matter of law in refusing to ester and Hunton common sources of supply allow Woolley to share in force-pooled acreage was inequitable and unsupported by compe- upon her election to participate in the Well. tent evidence. Woolley contests Pontotoc’s ¶13 The Commission’s order is REVERSED accounting witness’s use of the “exploratory to the extent it denied Woolley’s request to tail” method of allocating intangible drilling share in force-pooled acreage, and is otherwise costs, which allocated to the Hunton only those AFFIRMED. This matter is REMANDED for costs associated with drilling from the bottom further proceedings consistent with this of the McAlester formation to the Hunton. opinion. Woolley argues this method gave the Hunton interests a free ride through the McAlester. BELL, C.J., concurs. Pontotoc’s witness testified she used the explor- HETHERINGTON, P.J., dissenting in part, con- 1 atory tail method because the COPAS AG-1 curring in part: guide recommends it for allocating costs for a multiple completion well or down-hole com- ¶14 I dissent only as to the majority decision mingled well, and although neither situation on Proposition II finding Commission’s order was present here, the method was fair because is supported by competent and substantial evi- it approximated “what you would get if you dence. Based upon the record evidence pre- drilled just the McAlester well.” sented and pursuant to C.F. Braun & Co. v. Corporation Commission, 1987 OK 52, 739 P.2d ¶10 The Commission is authorized to decide 510, I find the allocation of costs not to be sup- disputes relative to the costs of drilling unit ported by substantial evidence. wells under pooling orders. 52 O.S.Supp.2007 §87.1(e). The testimony of Pontotoc’s account- 1. Well Costs - Allocations and Adjustments, Accounting Guideline AG- ing witness is substantial evidence supporting 1, Council of Petroleum Accountants Societies (April 2003). the Commission’s allocation of costs in this 2011 OK CIV APP 88 case. We find no error. SCANLINE MEDICAL, L.L.C., d/b/a III HUMMEL MEDICAL, an Oklahoma Limited ¶11 Woolley’s last contention is the Commis- Liability Company, Plaintiff/Appellant, v. CHRIS BROOKS, an individual, sion erred as a matter of law in refusing to Defendant/Appellee. allow Woolley to participate in force-pooled acreage obtained in two previous pooling No. 108,287. May 27 2011 orders in which Woolley was not named as a APPEAL FROM THE DISTRICT COURT OF party. She argues the Commission punished OKLAHOMA COUNTY, OKLAHOMA Woolley for Pontotoc’s title error and allowed Pontotoc to benefit from its own mistake. HONORABLE PATRICIA G. PARRISH, Approximately thirteen percent of the interests TRIAL JUDGE of the Unit were obtained from force-pooled AFFIRMED owners who did not participate in the Well; of that, Woolley would have been entitled to Tony Gould, George H. Brown, Brown & Gould, approximately thirty-five percent. P.L.L.C., Oklahoma City, Oklahoma, for Appellant,

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1909 Beverly S. Pearson, Cara A. Lowe, Fenton, Fen- the term . . . , (ii) Representative commits ton, Smith, Reneau & Moon, Oklahoma City, any Event of Default hereunder, or (iii) Com- Oklahoma, for Appellee. pany ceases to be a distributor of the Spinal Concepts Products under the Distribution LARRY JOPLIN, JUDGE: Agreement for any reason, this Agreement ¶1 Plaintiff/Appellant Scanline Medical, shall immediately terminate.1 L.L.C., d/b/a Hummel Medical, an Oklahoma ¶3 In 2004, Spinal Concepts terminated its Limited Liability Company (Plaintiff) seeks agreement for sale of its products through review of the trial court’s order granting the Hummel. Nevertheless, Defendant continued motion for summary judgment of Defendant/ to sell Spinal Concepts products and collect Appellee Chris Brooks, an individual (Defen- commissions on the sales through another dant), on Plaintiff’s claim for breach of con- distributor. tract. In this accelerated review proceeding, Plaintiff challenges the trial court’s order as ¶4 In March 2006, Hummel sold the business affected by errors of both law and fact. to Plaintiff. Following the sale, Defendant continued to sell medical products distributed by ¶2 Defendant sold medical products manu- Plaintiff, for which he collected commissions, factured by the companies, Spinal Concepts or but Defendant refused to execute new sales Orthovita, through the distributor, Hummel representative agreements when requested by Medical, Inc. In 2002, Defendant executed two Plaintiff. Independent Sales Representative Agreements, one covering the sale of Spinal Concepts prod- ¶5 In August 2006, Defendant severed his ucts, and one covering products made by relationship with Plaintiff. Defendant contin- Orthovita. The agreements extended for a three ued to sell Spinal Concepts products and col- year term, with options to renew, and provided lect commissions on the sales through the other for payment of commissions to Defendant on distributor. his sales. The agreements also contained iden- ¶6 In October 2006, Plaintiff commenced an tical provisions prohibiting Defendant’s solici- action against Defendant, seeking damages for tation, service and sale to previous clients of the alleged breach of the non-competition products manufactured by Spinal Concepts or clauses of the Independent Sales Representa- Orthovita for one year after the agreements tive Agreements, unjust enrichment, conver- terminated: sion and disclosure of trade secrets. Defendant 6. Non-Competition. Representative agrees filed a motion for partial summary judgment, during the term of this Agreement and for arguing that the contracts had terminated by a one (1) year period commencing on the their own terms, that the contracts contained date of termination of this Agreement, that no provisions for assignment, and that Plaintiff in the (i) United States, (ii) State of Okla- consequently had no right to enforce the non- homa and contiguous states, (iii) the Terri- competition provisions. tory, during the term of this Agreement, ¶7 The trial court granted Defendant’s motion including any renewals or extensions there- for partial summary judgment. Plaintiff dis- of, that it will not, either directly or indi- missed the remainder of its claims without prej- rectly, distribute, market, promote, solicit udice and commenced an appeal to challenge the future sale of, or sell, any medical the trial court’s order. Scanline Medical v. Brooks, device product competitive with any of the Case No. 105,181. The Court of Civil Appeals Spinal Concepts Products, or in any way reversed the order of the trial court and remand- have a financial interest . . . in any business ed for further proceedings, finding “issues of engaged in the distribution, solicitation, fact regarding whether the Brooks-HMI Agree- promotion or sale of any medical device ment is a personal services contract, as well as product competitive with any of the Spinal issues of fact regarding whether Brooks acqui- Concepts Products. esced in the assignment by his actions subse- . . . . quent to the sale to Scanline.” Scanline Medical v. Brooks, Case No. 105,181, p. 4, ¶8, (Ok. Civ. App. 13. Termination. If (i) Representative ceases Div. IV, August 29, 2008). to render sales representative services as provided in this Agreement, including but ¶8 On remand, Defendant filed another not limited to Representative’s death during motion for partial summary judgment, chal-

1910 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 lenging the salesmen’s contracts as unassign- Section 219A(A) of title 15, O.S. 2001, further able personal service contracts, and the non- provides: competition provisions thereof as overly broad, A person who makes an agreement with void, and unenforceable. an employer, whether in writing or ver- ¶9 The trial court so held and granted partial bally, not to compete with the employer summary judgment to Defendant. Plaintiff dis- after the employment relationship has been missed its remaining claims and commenced terminated, shall be permitted to engage in the instant appeal, complaining the trial court the same business as that conducted by the erred in holding the non-competition provi- former employer or in a similar business as sions void and unenforcable, and the matter that conducted by the former employer as stands submitted on the trial court record.2 long as the former employee does not directly solicit the sale of goods, services or I. Standard of Review a combination of goods and services from ¶10 “Summary relief issues stand before us the established customers of the former for de novo review.” Reeds v. Walker, 2006 OK employer. 43, ¶9, 157 P.3d 100, 106-107. (Footnotes omit- These sections express the public policy of this ted.) “Summary judgment will be affirmed state concerning covenants not to compete. only if the appellate court determines that Under §219A(A), a non-competition agreement there is no dispute as to any material fact and which proscribes the former employee from that the moving party is entitled to judgment dealing with established customers of the for- as a matter of law.” Lowery v. Echostar Satellite mer employer does not violate the public poli- Corp., 2007 OK 38, ¶11, 160 P.3d 959, 963-964. cy expressed in §217 or §219A, and is enforce- (Citations omitted.) “Summary judgment will able. See also, e.g., Thayne A. Hedges Regional be reversed if the appellate court determines Speech and Hearing Center, Inc. v. Baughman, that reasonable men might reach different 1998 OK CIV APP 122, ¶3, 996 P.2d 939, 941. A conclusions from the undisputed material non-competition agreement which proscribes facts.” Id. the former employee from any work “in the II. Non-Competititon Agreements same business as that conducted by the former employer or in a similar business as that con- ¶11 “[T]he question of whether a covenant ducted by the former employer” runs contrary not to compete or non-competition provision is to the express terms of §219A(A), violates the contrary to public policy is a question of law public policy there established, and is not for the Court.” Oliver v. Omnicare, Inc., 2004 OK enforceable. CIV APP 93, ¶5, 103 P.3d 626, 628-629; Thayne A. Hedges Regional Speech and Hearing Center, ¶13 We first note neither Plaintiff nor Defen- Inc. v. Baughman, 1998 OK CIV APP 122, ¶2, 996 dant raise any issue concerning when the one- P.2d 939, 941. “’In determining whether a clear year non-competition period began. Indeed, mandate of public policy is violated, courts Defendant conceded in his motion below that should inquire whether the [challenged] con- the one-year non-competition period began to duct contravenes the letter or purpose of a run in March 2006 upon sale of Hummel to constitutional, statutory, . . . regulatory provi- Plaintiff. sion or scheme[,] [or] [p]rior judicial deci- ¶14 However, the Independent Sales Repre- sions.’” Burk v. K-Mart Corp., 1989 OK 22, ¶18, sentative Agreements absolutely proscribe 770 P.2d 24, 29. Defendant from “sell[ing] any medical device ¶12 In this respect, §217 of title 15, O.S. 2001, product competitive with any of the Spinal provides: Concepts [or Orthovita] Products, or in any way [possessing] a financial interest . . . in any Every contract by which any one is business engaged in the distribution, solicita- restrained from exercising a lawful profes- tion, promotion or sale of any medical device sion, trade or business of any kind, other- product competitive with any of the Spinal wise than as provided by Sections 218 and Concepts [or Orthovita] Products.” The effect 219 of . . . title [15, O.S.], or otherwise than of this provision proscribes Defendant, with as provided by [15 O.S. 2001 §219A] is to any employer and any buyer, from exercising that extent void. his profession of selling medical products.

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1911 ¶15 By proscribing Defendant’s exercise of lenges the trial court’s order as affected by his profession, we hold the Independent Sales errors of both law and fact. Representative Agreements violate the public ¶2 Bank loaned a developer over $9,000,000.00 policy expressed in §§217 and 219A, and are to purchase 39 vacant acres near Broken Arrow, not entitled to enforcement.3 Oklahoma, and, by contract dated February 5, ¶16 We consequently hold the trial court did 2007, the developer employed Architect to pro- not err in granting partial summary judgment vide design services related to the proposed to Defendant. The order of the trial court is construction of a “one of a kind” shopping AFFIRMED. mall on the property. Architect allegedly performed over $500,000.00 in such services. MITCHELL, P.J., and BUETTNER, J., concur. ¶3 To secure payment for the services ren- 1. Paragraphs 6, 13 and 15.1 of the Orthovita contract are identical dered, Architect filed, on August 30, 2007, a to the quoted paragraphs 6, 13 and 15.1 of the Spinal Concepts contract. mechanic’s and materialman’s lien on the prop- 2. See, Rule 13(h), Rules for District Courts, 12 O.S. Supp. 2002, Ch. erty. Architect alleged that it last rendered 2, App.; Ok.S.Ct.Rule 1.36, 12 O.S. Supp. 2003, Ch. 15, App. 1. 3. Having so held, we need not decide the question of whether the labor and services about ninety (90) days prior Independent Sales Representative Agreements are assignable. on May 25, 2007. 2011 OK CIV APP 87 ¶4 Before commencement of any construc- STILLWATER NATIONAL BANK & TRUST tion, the developer defaulted on the loan, and COMPANY, a national banking association, conveyed the property to Bank in lieu of fore- Plaintiff/Appellee, v. Justin A. Cook, d/b/a closure. Bank then commenced the instant Cook & Associates Engineering, Inc., and action to quiet title. Cook & Associates Engineering, Inc., an ¶5 Bank subsequently filed a motion for Oklahoma corporation, Defendants, PSA- summary judgment. Bank adduced evidentia- DEWBERRY, INC., a foreign corporation, ry materials showing that the developer had Defendant/Appellant, PSA-Dewberry, Inc., not improved the property in any substantial Third-Party Plaintiff, v. Broken Arrow way beyond the clearing of a few trees, the Properties, L.L.C., Third-Party Defendant erection of signs announcing the plan for No. 108,209. April 12 2011 development of the property, and some soil testing. Bank consequently argued that, absent APPEAL FROM THE DISTRICT COURT OF work actually done on the land pursuant to TULSA COUNTY, OKLAHOMA plans prepared by Architect, Architect had no valid lien claim. See, Stern v. Great Plains Federal HONORABLE MARY F. FITZGERALD, Savings and Loan Ass’n., 1989 OK CIV APP 46, JUDGE 778 P.2d 933. Bank also presented evidentiary AFFIRMED materials argued to show that Architect did not timely file its lien within four months of the David Funnell, Robert Ray Jones, Jr., Lytle last labor or services provided as required by Soulé & Curlee, P.C., Oklahoma City, Oklaho- 42 O.S. 2001 §142. See, e.g., H.E. Leonhardt Lum- ma, for Appellant. ber Co. v. Ed Wamble Distributing Co., 1963 OK J. Dillon Curran, Jared D. Giddens, Conner & 17, 378 P.2d 771. Winters, L.L.P., Oklahoma City, Oklahoma, for ¶6 Architect responded. Architect argued Appellee. that its lien was valid and enforceable, and that LARRY JOPLIN, ACTING PRESIDING Stern was inconsistent with prior precedent so JUDGE: holding. See, e.g., Midland Mortg. Co. v. Sanders England Investments, 1984 OK 10, 682 P.2d 748; ¶1 Defendant/Appellant PSA-Dewberry, Diffenbach v. H.H. Mahler Co., 1934 OK 170, 30 Inc., a foreign corporation (Architect), seeks P.2d 907. Architect also presented evidentiary review of the trial court’s order denying recon- materials argued to show it last provided sideration of summary judgment previously design services on May 18, 2007, and it filed its granted to Plaintiff/Appellee Stillwater Nation- lien statement less than four months later on al Bank & Trust Company, a national banking August 30. association (Bank), on Architect’s claim to foreclose its mechanics’/materialman’s lien. In this ¶7 Specifically relying on Stern, the trial accelerated review proceeding, Architect chal- court granted judgment to Bank. Architect

1912 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 sought reconsideration, which the trial court furnished is readily ascertainable because one denied. Architect appeals, and the matter can actually see the workers performing their stands submitted for accelerated review on the craft, or the materials being delivered. “Com- trial court record.1 mencement” of work is of particular importance because it imparts notice to the world of I. Standard of Review the existence of potential lienable claims. See, ¶8 Ordinarily, “[w]hether the work per- e.g., Goebel v. National Exchangors, Inc., 277 formed under the statute is lienable is a ques- N.W.2d 755, 762 (Wis. 1979)3; Gollehon, Schem- tion for the trier of the facts[,] [and] [t]he trial mer & Associates, Inc. v. Fairway-Bettendorf Asso- court’s findings and judgment will not be dis- ciates, 268 N.W.2d 200, 201 (Iowa 1978).4 turbed unless they are clearly against the ¶11 A question arises, however, whether a weight of the evidence.” Midland Mortg. Co., lienable claim has been commenced when the 1984 OK 10, ¶4, 682 P.2d at 750. Where the facts labor performed produces little appreciable, are undisputed, however, a lien claim may be visible “improvement” to the land. For instance, decided on motion for summary judgment, in Midland Mortg. Co., an engineering firm and we review the trial court’s decision under “surveyed the realty, set permanent iron pins the de novo standard. See, e.g., Jones v. Purcell and marked the boundaries of the property.” Investments, LLC, 2010 OK CIV APP 15, ¶2, 231 1984 OK 10, ¶2, 682 P.2d at 749. In addressing P.3d 706, 707. Further, “[w]here, as here, our the first impression question of “[w]hether sur- assessment of the trial court’s exercise of dis- veying by an engineering firm entitles it to a cretion in denying defendants a new trial rests lien pursuant to 42 O.S. 1981 §141,” the Supreme on the propriety of the underlying grant of Court initially recognized that “the mechanic’s summary judgment, the abuse-of-discretion and materialman’s lien statute does not require question is settled by our de novo review of the that the labor performed for the erection of any summary adjudication’s correctness.” Reeds v. building be part of the permanent construction Walker, 2006 OK 43, ¶9, 157 P.3d 100, 106-107. of the building, or that it be continuous or (Footnotes omitted.) (Emphasis original.) visible.” 1984 OK 10, ¶4, 682 P.2d at 749-750. II. Mechanics’ and Materialman’s Liens The Supreme Court then held: ¶9 “Any person who shall, under oral or [T]his Court has defined the improve- written contract with the owner of any tract or ment of land described in §141 as including piece of land, perform labor, furnish material any and every character of improvement or lease or rent equipment used on said land on realty. We find that the services per- for the erection, alteration or repair of any formed by [the engineer/surveyor] consti- building, improvement or structure thereon or tuted an improvement of the realty. Because perform labor in putting up any fixtures, these services were lienable, [the engineer/ machinery in, or attachment to, any such build- surveyor]’s lien has priority of the mort- ing, structure or improvements . . . shall have a gage because the first work done on the lien upon the whole of said tract or piece of land preceded the filing of the mortgage. land, the buildings and appurtenances.” 42 Midland Mortg. Co., 1984 OK 10, ¶4, 682 P.2d at O.S. §141. “The purpose of the mechanic’s & 750. materialmen’s lien statute is to protect materialmen and laborers, to secure payment of ¶12 The Supreme Court thus implicitly rec- claims, and to give notice to the owners and to ognized that the physical acts of surveying third parties of the intent to claim a lien for a and setting permanent iron pins in the ground definite amount.” Davidson Oil Country Supply to mark the boundary of the property consti- Co., Inc. v. Pioneer Oil & Gas Eqpt., 1984 OK 65, tuted an improvement of the realty. This ¶6, 689 P.2d 1279, 1280-1281. (Citations makes sense because a physical examination omitted.) of the property would reveal the work of the engineer in permanently marking the bound- ¶10 “[A] subcontractor has a ‘lienable claim’ aries of the property. upon the commencing of work or furnishing of materials pursuant to the subcontract.” In re ¶13 In this respect, however, there is a dis- Tefertiller, 1989 OK 60, ¶14, 772 P.2d 396, 399; tinct division of authority on the question of Midland Mortg. Co., 1984 OK 10, ¶4, 682 P.2d at whether an architect possesses a lienable claim 749-750.2 Ordinarily, the questions of when for services rendered. See, Simmons, “Archi- work was commenced or when materials were tect’s services as within mechanics’ lien stat-

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1913 ute,” 31 A.L.R.5th 664 (West 2011). “When plans, to the burden of a lien claim of which architects or engineers drew plans which were he had no notice, actual or constructive. used in construction, the courts both granted ¶16 In the present case, it is undisputed that and denied liens.” 31 A.L.R.5th 664, §§2(a), 6, Architect and the developer entered into a con- 7(a), 8(a). “Where plans were not used in contract for Architect’s provision of more than struction, the courts again both granted and $1,400,000.00 in engineering and architectural denied liens.” 31 A.L.R.5th 664, §§2(a), 6, 7(b), services for the construction of a shopping mall 8(b). Where an architect’s lien is denied, the on the 39 acres financed by Bank. However, it courts generally reason that, without com- is also undisputed that developer could not mencement of any actual work to improve the obtain further financing of the project, and no property pursuant to the architect’s drawings, improvement of the land according to the it cannot be said the architect has contributed architect’s plans was ever accomplished by in any way to the improvement of the property. developer or any one else. See, e.g., Mark Twain Kansas City Bank v. Kroh Bros. Development Co., 798 P.2d 511 (Kan.App. ¶17 Under these circumstances, and absent 1990); Branecky v. Seaman, 688 S.W.2d 117 (Tex. actual improvement to the land pursuant to App. 1984); Sullivan v. Thomas Organization, 276 Architect’s efforts, Stern announces the correct N.W.2d 522 (Mich.App. 1979). rule of Oklahoma law and holds that Architect possessed no valid enforceable lien on the ¶14 In the present case, there is no question property. The trial court properly granted judg- but that Architect’s plans were not used. In ment to Bank on this issue. The order of the Stern, the Court of Civil Appeals analyzed the trial court is AFFIRMED. language of 42 O.S. §141, Oklahoma’s mechanic’s and materialman’s lien statute, and first HETHERINGTON, J. (sitting by designation), held “that the services of an architect in the concurs. preparation of plans and specifications which are used in the work done on the land are Kenneth L. Buettner, Judge, specially improvements of land and are thus lienable concurring: claims under 42 O.S. 1981 §141.” 1989 OK CIV ¶18 I agree with the majority that the work of APP 46, ¶5, 778 P.2d at 935. However, the Court the architects under the facts presented is not of Civil Appeals also held: lienable under 42 O.S. §141. However, I would An architect’s work need not be the not adopt Stern in toto, because it is unneces- actual work done on the land; however, to sary to determine in this case whether an be lienable, it must be services which architect’s work that is subsequently used to results in work being done on the land. In build on the property can be a lienable claim.

this case, Phases II and IV were never 1. See , Rule 13(h), Rules for District Courts, 12 O.S. Supp. 2002, Ch. funded or constructed. Thus, Appellant’s 2, App.; Ok.S.Ct.Rule 1.36, 12 O.S. Supp. 2003, Ch. 15, App. 1. architectural services for Phases II and IV, 2. “[A]ny person who, under oral or written contract performs labor or material for the improvement of land, has a lien which takes as shown on the statement attached to his preference over all other liens which may attach upon the land after lien, were not used to improve this prop- the date of the performance of the first labor on the land.” 3. “It may be observed here, that the attaching to the realty of any erty and are not lienable claims under 42 material used in constructing a new building, or in making repairs, is O.S. 1981 §141. the Commencement of such building or repairs within the meaning of the statute. . . . This rule is reasonable and just, in that it requires an Stern, 1989 OK CIV APP 46, ¶7, 778 P.2d at 936. open, visible act to fix and establish the precise time when the mechanic or material man shall have priority of lien over subsequent incum- (Emphasis original.) brancers. Under this rule a person about to take a mortgage upon real estate may determine with absolute certainty, by an examination of the ¶15 We believe this is the correct rule to premises, whether his security is liable to be, or can be, impaired by apply to claims by architects. That is to say, if liens of mechanics or material men under the statute. Any other rule might work great wrong and injustice.” (Citation omitted.) the “improvement” of the land pursuant to 4 “The theory under which mechanic’s liens are justified is that the the architect’s plans has not commenced, it improvement constitutes visible notice of the furnishing of labor or material. ‘The reason upon which the statute is based is quite as appar- would be impossible to determine, from an ent as its language. It is this: The fact that the building or improvement inspection of the land, whether the land is is being made is notice to the world, open enough for all to have warning of the mechanics and material men’s rights. It is entirely competent liable to be, or can be, impaired by liens of for the legislature to so provide and to direct that all persons shall be mechanics or materialmen under the statute. chargeable with such notice for ninety days after the last item of labor To hold otherwise would expose a good faith or materials is furnished.’” (Citation omitted.) purchaser, without observable commencement of work pursuant to the architect’s

1914 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 2011 OK CIV APP 86 property.1 Relevant to the issues before us on appeal, the trial court in the agreed-to decree BRIAN GALARZA, Petitioner/Appellant, v. EUNICE DENISE GALARZA, Respondent/ awarded Husband “the following assets free Appellee. from any claim of [Wife]: military retirement subject to any portion [Wife] may be entitled to No. 107,820. April 13 2011 pursuant to military law, regulations, customs, APPEAL FROM THE DISTRICT COURT OF or stipulations.” PAYNE COUNTY, OKLAHOMA ¶5 In March 2009, more than nine years later, HONORABLE MICHAEL STANO, Wife filed a motion to enter a QDRO in order to TRIAL JUDGE be awarded her portion of Husband’s military retirement. Husband responded by filing an AFFIRMED “Answer to [Wife’s] Motion to Modify” object- W. Franklin Muret, Stillwater, Oklahoma, for ing to Wife’s entitlement to any portion of his Petitioner/Appellant, military retirement. William J. Baker, HERT, BAKER, KOEMEL & ¶6 In July 2009, Wife filed an application for IHRIG, P.C., Stillwater, Oklahoma, for Respon- order nunc pro tunc stating the following: dent/Appellee. “That the Decree of Divorce and Dissolution of Marriage filed August 5, 1999 incorrectly and JANE P. WISEMAN, JUDGE: through scrivener’s error, did not contain lan- ¶1 Plaintiff Brian Galarza (Husband) appeals guage adequate to allow for division of the from an order of the district court sustaining [Husband’s] military retirement pay, and Defendant Eunice Denise Galarza’s (Wife) should be corrected.” “Motion to Enter Qualified Domestic Relations ¶7 After a hearing in September 2009 on Order” (QDRO) and application for order nunc Wife’s motion to enter a QDRO and applica- pro tunc. After review of the record and appli- tion for order nunc pro tunc, the trial court cable law, we affirm the trial court’s order. sustained both motions finding that the FACTS AND PROCEDURAL August 1999 decree should be corrected to BACKGROUND read as follows: ¶2 According to the docket sheet, Husband “That [Wife] is awarded a percentage of filed a petition for divorce in October 1998. The [Husband’s] disposable military retired docket sheet reflects Wife did not answer the pay, to be computed by multiplying 50% petition and on January 28, 1999, a divorce times a fraction, the numerator of which is decree was filed. At the time the decree was the number of months of marriage (178) filed, the parties had been married since 1984 during the [Husband’s] creditable military and had three minor children. In its disposition service, and the denominator of which is of the parties’ property, the trial court awarded [Husband’s] total number of months of Husband all of his military retirement. creditable military service, and further, the [Wife] should receive her proportionate ¶3 Wife filed a motion to set aside the divorce share of all cost of living adjustments.” decree which the trial court granted in an order filed March 4, 1999. In doing so, the trial court The trial court’s order memorializing its dispo- found “that [Wife] had actual notice of the sition of these motions was filed on November divorce being filed and finds that service was 9, 2009, and the trial court entered a QDRO on good. [Wife] has ten days to file any other November 23, 2009, implementing this provi- pleadings in answer and [Husband] has ten sion of the divorce decree. days to respond.” In her answer to the petition ¶8 Husband appeals. for dissolution, Wife asked the trial court to dismiss the petition for lack of jurisdiction or, STANDARD OF REVIEW in the alternative, set the matter for hearing. ¶9 We review de novo whether the trial ¶4 After a hearing, the trial court entered a court’s order “was an extra-jurisdictional divorce decree which was filed on August 5, modification of a final property division in a 1999, in which it determined custody, visita- divorce action.” Jackson v. Jackson, 2002 OK 25, tion, child support, and division of the parties’ ¶ 2, 45 P.3d 418, 422.

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1915 ¶10 “Whether there is existence of ambiguity Stork v. Stork, 1995 OK 61, ¶ 7, 898 P.2d 732, 736- contained in the language of the decree is a 37 (emphasis and footnotes omitted). decision made by the trial court.” Ryan v. Ryan, ¶15 “Absent a specific statutory exception a 2003 OK CIV APP 86, ¶ 8, 78 P.3d 961, 963. “If trial court may consider pension benefits accu- the court determines that the language is not mulated during marriage as jointly acquired ambiguous, the construction of the decree is property subject to equitable division in a also a matter of law for the court.” Id. divorce.” Jackson, 2002 OK 25 at ¶ 13, 45 P.3d at ¶11 Actions for divorce, alimony and divi- 426. “[T]his Court has consistently held that a sion of property are matters of equitable cogni- final property division judgment is not subject zance. Carpenter v. Carpenter, 1983 OK 2, ¶ 24, to modification at a later date.” Id. “An excep- 657 P.2d 646, 651. We will not disturb the trial tion to the general rule has been recognized court’s order “absent an abuse of discretion, or where the parties have entered into a settle- a finding that the decision is clearly contrary to ment agreement (approved by a consent the weight of the evidence.” Watkins v. Watkins, divorce decree) that expressly agrees to future 2007 OK CIV APP 122, ¶ 4, 177 P.3d 1114, 1116. modification of the agreed-to property division under certain specified circumstances.” Id. at ANALYSIS n.13, 45 P.3d 418. 1. Jurisdiction ¶16 However, in regard to the trial court’s ¶12 Husband contends the trial court had no jurisdiction to clarify a previous divorce decree jurisdiction to enter the November 2009 order dividing retirement benefits, the Supreme granting Wife’s motion to enter a QDRO and Court in Jackson found as follows: application for order nunc pro tunc because its [A] QDRO is generally the mechanism by order exceeded merely interpreting the 1999 which a divorce decree awarding retire- divorce decree and actually modified a provi- ment benefits to a spouse is enforced and sion of the decree. Husband argues the vaca- collected with regard to the particular tion statutes, 12 O.S.2001 §§ 1031 and 1031.1, retirement program covered by the decree. apply and concludes that because the Novem- . . . . ber 2009 order was entered more than 30 days after the 1999 decree, the trial court had no Although a trial court is without jurisdic- jurisdiction in this matter. tion or authority to issue a QDRO that substantively alters a final property divi- ¶13 Conversely, Wife asserts these statutes sion previously made in a divorce action, a do not apply because the trial court has juris- trial court has jurisdiction or authority to diction to clarify previous orders dividing issue a subsequent post-property division retirement benefits, citing Jackson, 2002 OK 25, QDRO to act as the statutorily-sanctioned 45 P.3d 418, and Hodge v. Hodge, 2008 OK CIV mechanism by which the System gains APP 96, 197 P.3d 511. We address Husband’s lawful empowerment to pay a former second and third issues together in this sec- spouse their portion of a System benefit tion. previously awarded as part of the final property division in the divorce action. ¶14 “The function of an order nunc pro tunc is to make the order speak the truth about what . . . . actually transpired.” Hodge, 2008 OK CIV APP [A] trial court has the authority to issue a 96 at ¶ 14, 197 P.3d at 514. subsequent QDRO if an initial one contains Nunc pro tunc relief is limited to supplying some ambiguity concerning the proper inadvertent clerical omission and correct- division of a retirement benefit under an ing facial mistakes in recording judicial earlier entered divorce decree, as long as acts that actually took place. In short, a the later QDRO does not alter what was nunc pro tunc order can and will place of awarded initially by the decree, but con- record what was actually decided by the forms to it. court but was incorrectly recorded. The Id. at ¶¶ 1, 15, 45 P.3d at 421, 426. device may neither be invoked as a vehicle to review a judgment (or to excise legal ¶17 The first decree in January 1999 stated errors found in it) nor as a means to enter a the following regarding Husband’s military different judgment. retirement:

1916 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 10. [Husband] is awarded the following . . . . assets free from any claim of [Wife]: So there has to be an agreement that she’s Asset to be given something, and the issue is how much. And I interpret the plain language of i. Military Retirement; that portion of a paragraph to mean that she ii. Household Goods and Furnishings cur- gets all she’s entitled to, and what she’s entitled rently in his possession. to, the all to which she is entitled, is 50 percent of what accrued during their marriage per the ¶18 This decree was vacated and the August formula. 1999 decree was subsequently entered stating: 14. [Husband] is awarded the following (Emphasis added). Thus, the trial court assets free from any claim of [Wife]: ordered the August 1999 decree to be corrected as follows: household goods and furnishings currently in his possession “That [Wife] is awarded a percentage of [Husband’s] disposable military retired military retirement subject to any portion pay, to be computed by multiplying 50% [Wife] may be entitled to pursuant to times a fraction, the numerator of which is military law, regulations, customs, or the number of months of marriage (178) stipulations. during [Husband’s] creditable military ser- ¶19 The trial court found the language in the vice, and the denominator of which is first decree to mean Wife would receive no por- [Husband’s] total number of months of tion of the military retirement pay and found creditable military service, and further, the added language in the second decree to [Wife] should receive her proportionate mean Wife would receive a portion of Hus- share of all cost of living adjustments.” band’s military retirement pay subject to mili- ¶21 We see nothing in the trial court’s order tary law. During the hearing on Wife’s motions, modifying or changing the military retirement the trial court concluded: provision contained in the August 1999 divorce It is not a new request for a portion of mili- decree. The order effectuates the parties’ intent tary retirement. It’s merely a request for and enforces the terms of paragraph 14 of the clarification of paragraph 14 in the final decree. Mariano v. Mariano, 2005 OK CIV APP decree. And second, my ruling is that there 77, ¶ 9, 122 P.3d 493, 495 (finding a trial court’s is enough language in the second, final power to clarify a division of military retire- decree to permit a modification of that ment “can only be obtained to bring the terms decree that will satisfy the military, specifi- of a qualified domestic relations order, the cally, with reference to the kind of modifi- vehicle by which the division of military retire- cation that, as I understand it, was made in ment benefits is enforced, into harmony with the Hodge case. the provisions of the divorce decree”). The trial court properly clarified the decree pursuant to ¶20 During the hearing on Wife’s motion to an order nunc pro tunc. We therefore find the settle journal entry, the trial court restated its trial court had jurisdiction to enter an order to findings: effectuate the military retirement terms of the I think the whole issue is whether that divorce decree. second decree, the one of August 5 of 1999, 2. Evidentiary Hearing contains enough language to get [Wife] some of [Husband’s] military retirement. ¶22 Husband also argues that the trial court And obviously, it does not. That decree erred in denying him a “full evidentiary hear- does not have a percentage in it. ing” on Wife’s application for an order nunc pro tunc. Although the trial court conducted a But my belief is that paragraph number hearing, it denied Husband’s request to pres- 14, the paragraph in that newer decree, ent his own testimony and that of Wife’s for- contains enough that the terms there are mer attorney to discuss the parties’ intent sufficient, that whatever remains to effect a regarding division of the military retirement.2 QDRO may be added. That paragraph gives her something. It does not give her ¶23 The trial court stated during the hearing nothing. on Wife’s motion to settle journal entry that it

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1917 denied Husband’s request to allow testimony BARNES, P.J., and FISCHER, V.C.J., concur. during the hearing because he was making a ruling as a matter of law: 1. It appears from its docket sheet that the trial court approved the division of assets and liabilities as “per agreed decree” which Wife’s counsel approved on her behalf. Although Husband states in his I did not take, did not allow testimony that appellate brief that the language of this decree “does not . . . establish day, and I believe that it’s correct . . . that that it was a consent [d]ecree,” Husband also argues in his Petition in Error that “[t]he Court abused its discretion and erred in its ruling as my statement disallowing testimony came it had the effect of rewriting a Consent Decree . . . ten (10) years after from the belief that this was a matter of the Decree was final rendering a settled Decree beyond terms agreed law. And I still believe that. My interpreta- to by the Parties . . . .” 2. Husband issued a subpoena to Wife’s former attorney to testify tion of law may not be correct, but it is my at the September 2009 hearing. Wife’s successor attorney then filed a interpretation of the law and not fact motion to quash the subpoena on grounds of attorney-client privilege. The record does not reflect a ruling on this motion or issue. dependent. 2011 OK CIV APP 83 ¶24 The trial court also stated during the hearing on Wife’s application for nunc pro tunc ERICK L. REIMERS, Plaintiff/Appellant, v. relief: “I think inside Hodge, with the language THE STATE OF OKLAHOMA, ex rel. in paragraph 14 as it is, Hodge allows that to be DEPARTMENT OF CORRECTIONS and clarified to meet the requirements of the mili- THE CITY OF BETHANY, Defendants/ tary. There is enough there that I believe the Appellees. intent of the parties was clear. . . . And yet, per No. 107,440. February 14, 2011 Hodge, it’s not clear enough for the military.” APPEAL FROM THE DISTRICT COURT OF ¶25 Before ruling on Wife’s nunc pro tunc OKLAHOMA COUNTY, OKLAHOMA application, the trial court held a hearing and considered argument from both sides. “The HONORABLE PATRICIA G. PARRISH, inherent power of a court, at any time after TRIAL JUDGE proper hearing, and so long as no intervening REVERSED rights are affected, to cause its records to speak the truth and to enter an order nunc pro tunc Michael S. “Mickey” Homsey, Terry R. McMil- accordingly has always been recognized in this lan, HOMSEY & ASSOCIATES, Oklahoma City, jurisdiction.” Brougham v. Independent Potash & Oklahoma, for Appellant Chem. Co., 1948 OK 119, ¶ 5, 199 P.2d 211, 212. David A. Davis, Oklahoma City, Oklahoma, for Because the trial court found the language in Appellee City of Bethany. E. Scott Pruitt, the August 1999 decree entitling Wife to a por- OFFICE OF THE ATTORNEY GENERAL, John tion of Husband’s military retirement to be D. Hadden, ASSISTANT ATTORNEY GENER- clear and unambiguous, it did not err in refus- AL, Oklahoma City, Oklahoma, for Appellee ing Husband’s request to present testimony State of Oklahoma Department of Corrections regarding the parties’ intentions. Such testimony would have been permissible had the JERRY L. GOODMAN, PRESIDING JUDGE: trial court found the language ambiguous. ¶1 Plaintiff Erick L. Reimers appeals two trial Ryan, 2003 OK CIV APP 86 at ¶ 17, 78 P.3d at court orders entered in separate cases. Each 965 (finding that “’the practical construction of order is final and presents the same question an agreement, as evidenced by the acts and for our review. Plaintiff was convicted of a sex conduct of the parties, is available only in the crime in 1992 and completed all registration event of an ambiguity’” (quoted citation omit- requirements of the Oklahoma Sex Offender ted)). The trial court did not err in refusing Registration Act (OSORA), 57 O.S. Supp. 1991, Husband’s request to present testimony regard- §§ 581 through 587 (now 57 O.S.2001 and Supp. ing the parties’ intent in dividing the military 2009, §§ 581 through 590.2), then in effect. The retirement benefits. question before this Court is whether Plaintiff CONCLUSION must continue to register as a sex offender pursuant to subsequent amendments to OSORA ¶26 The trial court’s order sustaining Wife’s that became effective after he completed his “Motion to Enter Qualified Domestic Relations sentence? Order” and application for order nunc pro tunc ¶2 We answer the question in the negative, is affirmed. but in doing so we need not address Plaintiff’s ¶27 AFFIRMED. argument that the amended statute is an uncon-

1918 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 stitutional ex post facto law. We hold that FACTS under the specific facts of this case, OSORA ¶7 Plaintiff’s petition states that in 1992 he does not apply to this Plaintiff because the amendments are substantive in nature and not was charged with indecent exposure pursuant merely procedural. Finding no legislative intent to 21 O.S.1991 and Supp. 1996, § 1021(A)(1), to retroactively apply a substantive change in (now 21 O.S.2001 and Supp. 2008, § 1021(A)(1)). the law, Plaintiff is entitled to the relief He pled guilty to the charge and received a sought. five-year suspended sentence. He successfully completed all the terms and conditions of his ¶3 In this appeal, No. 107,440, we address five-year sentence including the successful Plaintiff’s request for injunctive and declarato- completion of DOC’s sex offender treatment ry relief. In the second appeal, No. 108,070, program. issued this date, we address Plaintiff’s request for monetary damages arising from attempts to ¶8 At the time of his conviction, 57 O.S.Supp. enforce OSORA’s amendments against him. 1989, § 503(C) required convicted sex offenders who had successfully completed DOC’s sex PROCEDURAL BACKGROUND offender treatment program to register with ¶4 Plaintiff filed a petition in Oklahoma DOC (but not with a local municipality) for County District Court on March 18, 2009, in two years following their date of discharge case number CJ-2009-2610. He sought to tem- from DOC supervision. Repeat offenders, and porarily and permanently enjoin defendants those who did not complete DOC’s treatment Department of Corrections (DOC) and City of program, were required to register for ten Bethany (COB) from enforcing provisions of years. OSORA. He also sought to prevent the publica- ¶9 Plaintiff completed his sentence in 1997, tion of any information regarding his status as and registered as a sex offender for two more a registered sex offender and sought a declara- years. He has not registered since 1999. He tion that OSORA’s amendments were an ex moved to Bethany, Oklahoma, and lives in a post facto law or bill of attainder, and therefore home located less than 2,000 feet from a school. unconstitutional. The subsequently amended § 590 of OSORA ¶5 DOC and COB filed motions to dismiss prohibits persons subject to its provisions from Plaintiff’s claim on procedural and substantive living within 2,000 feet of a school. grounds. At the hearing on those motions the parties’ arguments mainly addressed the sub- ¶10 In 1997, the year Plaintiff completed his stantive issue, i.e., whether the amendments to sentence, and the first year he registered as an OSORA created ex post facto laws. Subse- offender, OSORA was amended to require all quently, the trial court dismissed Plaintiff’s suit offenders to register with DOC for ten years, without stating its reason. That order, filed July and additionally, to register for five years with 28, 2009, is the subject of this opinion, the local law enforcement agency having jurisdiction over an offender’s intended place of ¶6 On September 1, 2009, Plaintiff filed a sec- residence. The provisions reducing the length ond suit in Oklahoma County, Case No. CJ- of registration for completion of an offender 2009-8268, in which he sued DOC, COB, and treatment program were stricken. Sharon Cadle, a police officer employed by COB (collectively, Defendants). Plaintiff again ¶11 In its current version, § 583 (C)(1) and alleged the amendments to OSORA created (D)(1) each require a level one offender (such unconstitutional ex post facto laws, and alleged as Plaintiff) to register with DOC and local law various tort claims against all Defendants. All enforcement for 15 years following the comple- of the tort claims arose from Defendants’ tion of their sentence. The length of time attempts to enforce the amendments to OSO- required to register is now dependent upon the RA’s registration requirements against Plain- “level” of offence. A level one designation is tiff. A motion to dismiss was filed, which the given to an offender who is considered a lower trial court treated as a motion for summary risk or danger to the community and because judgment. After a hearing it granted and he is not likely to repeat such offense. A level entered judgment in favor of all Defendants. three classification represents a higher risk or That order, filed February 6, 2010, was appealed danger to the community because the offender in No. 108,070, which we treat as a companion is likely to commit repeated offences. See, 57 case and issue a separate opinion on this date. O.S.2001 and Supp. 2009, § 582.5(C).

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1919 ¶12 On September 17, 2007, Plaintiff was ¶18 The trial court held a hearing on April charged with failing to register as a sex offend- 30, 2009, taking the matter under advisement. er, but this charge was dismissed on January Its order, filed July 23, 2009, reflects that the 24, 2008.1 On January 25, 2008, a judge of the parties presented their positions on the undis- Oklahoma County District Court entered an puted facts and the issue was a purely legal “Order Clarifying Sex Offender Status” in one. It granted DOC’s motion to dismiss and Plaintiff’s original criminal case which declared sustained COB’s objections. Plaintiff’s requirement to register as a sex ¶19 The trial court’s letter ruling states the offender terminated in 1999 when two years court found Smith v. Doe, 538 U.S. 84 (2003), and elapsed following the completion of his sen- Oklahoma Attorney General Opinion 2004 AG tence.2 24, persuasive. These authorities addressed the ¶13 On April 14, 2008, Cadle, a police depart- ex post facto issue. Responding to Plaintiff’s ment employee of COB, mailed Plaintiff a letter request for findings of fact and conclusions of demanding he move from his residence and law, the trial court, lacking independent recollec- register as a sex offender or face another charge tion of the rulings made at the hearing, adopted of failure to register. the transcript of the April 30 hearing as its findings. The order concluded by denying Plaintiff’s ¶14 Plaintiff refused these demands, hired petition for injunction, declaratory relief, or a counsel, and demanded all information regard- restraining order, and entered judgment for ing his status be removed from COB and DOC DOC and COB, with costs awarded to Defen- databases, citing as authority the trial court’s dants. Plaintiff appeals. 2008 Order Clarifying Status. Plaintiff also filed STANDARD OF REVIEW an administrative grievance with DOC on May 12, 2008. This grievance was denied causing ¶20 The trial court granted DOC’s motion to Plaintiff to pursue a timely administrative dismiss. A motion to dismiss for failure to state appeal of the denial. a claim will not be granted, nor will a petition be dismissed for failure to state a claim unless ¶15 Plaintiff’s demands were denied. DOC it appears beyond doubt that the plaintiff can notified Plaintiff by letter that the registration prove no set of facts in support of his claim requirements applied to him and that DOC which would entitle him to relief. Frazier v. believed the trial court’s Order Clarifying Sta- Bryan Mem’l Hosp. Auth., 1989 OK 73, ¶ 13, 775 tus was void because registration was a civil P.2d 281, 287. The review of a motion to dis- matter and administered by DOC, not by the miss involves a de novo consideration of the courts, and as a result, the trial court had no petition to determine the legal sufficiency of subject matter jurisdiction to enter the order. the claim. ¶16 On May 29, 2008, COB’s employee, ¶21 Permitting a defective pleading to be Cadle, submitted an affidavit of probable cause amended before pronouncing final judgment is with the Oklahoma County District Attorney’s a statutory prerequisite. However, an excep- office causing the latter to file a second charge tion applies when, as in this case, the facts are against Plaintiff for failing to register and for uncontroverted and the dismissal is based on a living within 2,000 feet of a school. On January pure question of law. The interpretation of a 13, 2009, these charges were dismissed when statute and its application is a question of law Plaintiff agreed to register. In a letter from which we review de novo. State ex rel. Oklahoma another counsel to the District Attorney dated State Dept. of Health v. Robertson, 2006 OK 99, ¶ April 17, 2008, Plaintiff agreed to register and 6, 152 P.3d 875, 877-78. to move his residence, asking for six weeks in ISSUE which to do so. ¶22 The narrow issue is this: Is Plaintiff ¶17 However, he did not do so. Instead, required to comply with OSORA’s amended Plaintiff filed suit, seeking declaratory and sex offender registration requirements that injunctive relief requesting COB and DOC be were not in effect and substantially changed enjoined from disseminating any information after he completed his sentence for a sex crime? about him and that OSORA, as amended, be Stated differently, if Plaintiff complied with all found unconstitutional because it was either an the statutory registration requirements in effect ex post facto law or bill of attainder. at the time of his sentencing, is he now required

1920 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 to comply with additional registration and the risk the offender poses to the commu- publication requirements that did not exist at nity; and the time he completed his sentence? Or, as Plaintiff argues, did the amendments create 2. Documents the reason for the override in unconstitutional ex post facto law or bill of the case file of the offender. attainder? Provided, in no event shall the sex offender ANALYSIS level assignment committee, the Depart- ment of Corrections, or a court override and ¶23 We must first address two procedural reduce a level assigned to an offender as issues raised by both parties. First, DOC con- provided in subsection C of this section. tends it (and by extension, COB) are improperly named as parties in this suit. (Emphasis added.) Improper Parties ¶27 According to DOC, nowhere else in OSORA has the Legislature included any pro- ¶24 DOC contends this appeal should be visions permitting a court to modify or alter dismissed because Plaintiff has not sued the the terms of OSORA as it applies to one coming proper parties. Plaintiff’s suit names DOC and under its ambit. OSORA, so argues DOC, is a COB, as political subdivisions, as defendants. civil regulatory act, not a criminal statute, and 3 He names no individuals. According to DOC, therefore a court cannot, as part of its sentenc- because Plaintiff seeks to compel those political ing or review of a criminal conviction, limit subdivisions to act (delete his name from the OSORA’s applicability to a defendant. DOC database) and to enjoin them from other acts concludes the trial court had no authority to (compelling Plaintiff to register or move under enter the order it did, and claims it cannot be threat of prosecution) it is necessary for Plain- bound by the order, nor can Plaintiff rely on it tiff to name an individual agent of DOC or to prevent registration. COB to be enjoined or compelled to act. We disagree. We find DOC and COB are proper ¶28 We agree with DOC that it is not bound parties to this suit and Plaintiff’s suit may by the trial court’s order, and that Plaintiff may proceed. not use this order as authority for not registering. The trial court’s order Clarifying Sex Effect of Trial Court’s Order Clarifying Status Offender Status in Plaintiff’s criminal case ¶25 Next, Plaintiff argues the trial court’s merely stated its opinion regarding the law in 2008 order Clarifying Sex Offender Status was effect at the time and its application to Plaintiff effectively and erroneously nullified by the based on that current law. The trial court did order now under review. Plaintiff contends the not have proper jurisdiction of the subject mat- order Clarifying Sex Offender Status was final ter or parties to render what was essentially a and conclusive regarding the necessity of Plain- declaratory judgment regarding the validity of tiff to continue registering under the revised the Act. OSORA requirements. Plaintiff argues the order was never appealed, became final, and Constitutionality of OSORA he is entitled to rely upon it as a vested or ¶29 As stated earlier, we need not address accrued right. Timmons v. Royal Globe Ins. Co., Plaintiff’s broader argument that OSORA is 1985 OK 76, ¶ 13, 713 P.2d 589, 594. unconstitutional. Instead, we recast Plaintiff’s ¶26 In response, DOC states that the only argument and simply address the issue of provision of OSORA which contemplates a whether OSORA is applicable to him. We hold judicial determination is found in 57 O.S.2001 it is not. and Supp. 2009, We do not reach, either for settlement or § 582.5 (D), which states: discussion, the equal protection clause’s impact. When, as here, legal relief clearly is D. The sex offender level assignment com- affordable upon alternative grounds, con- mittee, the Department of Corrections, or a sideration of constitutional challenges is court may override and increase the level inappropriate in light of our self-erected assignment only if the entity: “prudential bar” of restraint. Constitution- 1. Believes that the level assignment al questions should not be reached in assessed is not an accurate prediction of advance of strict necessity.

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1921 Russell v. Board Of County Commissioners, 1997 OK of Plaintiff’s conviction, and all versions of 80, ¶ 32, 952 P.2d 492, 504 (footnote omitted). OSORA enacted since that time, clearly state an effective date from which OSORA would be ¶30 Instead, we examine the amendments to prospectively applied.4 There are no statements determine if they represent substantive or pro- by the Legislature that the provisions shall be cedural changes to existing law. If those chang- retroactive. Further, a review of the amend- es represent substantive changes to existing ments to OSORA show they are substantive as law, they cannot be retroactively applied absent applied to this Plaintiff. If applied, they would an express Legislative intent. require him to register for an additional length ¶31 This issue has recently been addressed of time beyond that required of him when he by the Oklahoma Court of Criminal Appeals in was sentenced. We therefore hold the OSORA an unpublished summary opinion styled State amendments are substantive, and cannot be v. Smith, Appeal No. S-2009-944 (October 28, applied to this Plaintiff retroactively. We do not 2010). We find that Court’s analysis erudite address OSORA’s constitutionality. and persuasive. A statute must be given retro- ¶33 Plaintiff is entitled to judgment on his active effect before it can violate the prohibi- actions below to compel DOC to remove him tions against either ex post facto laws or bills of from the offender data base, and COB is attainder. Unless the Legislature clearly enjoined from further actions against Plaintiff expresses otherwise, intervening changes in arising from these facts. the law are applied prospectively only, effective on the date of their enactment. ¶34 REVERSED. Statutes are typically not given retroac- GABBARD, J., and RAPP, J., concur.

tive effect unless the Legislature has made 1. The District Attorney, in a letter dated April 10, 2008, gave two its intent to do so clear. Any doubts must reasons for the dismissal. First, because Plaintiff did register for two years as required by the statute in effect at the time and did complete be resolved against a retroactive effect. the sex offender treatment programs. Second, the District Attorney Crawford v. Guardian Life Ins. Co., 1997 OK believed at the time the amended statute was not to be applied retro- 10, ¶ 8, 954 P.2d 1235, 1238. … actively because it “withdrew previous benefits [Plaintiff] obtained from completing sex offender treatment.” The District Attorney now concluded, upon further study, that that belief was “incorrect and … CNA Ins. Co. v. Ellis, 2006 OK 81, ¶ 13, 148 P.3d the sex offender registration law is retroactive.” However, the District 874, 877. Attorney stated it would not refile the charges, but Plaintiff must comply with OSORA. Remedial or procedural statutes may 2. The January 25, 2008, Order states in part: “[T]he Court finds that the Defendant has fully satisfied the requirements [of OSORA] by operate retrospectively only where they do completing sex offender treatment and finds that the registration not create, enlarge, diminish or destroy requirements thereunder terminated … on November 17, 1999 as to [DOC] and November 17, 2002, as to the city in which he resided…”. vested rights. A substantive change that This order was entered in Oklahoma County case no. 1992-4363 and alters the rights or obligations of a party neither DOC or COB were parties to or given notice on that case. 3. But see Opinion No. 108,070. cannot be viewed as solely a remedial or 4. Section 582 of OSORA, as amended, titled “Applicability of Act” procedural change and cannot be retro- states in relevant part: A. The provisions of the Sex Offenders Registration Act shall apply spectively applied. Welch v. Armer, 1989 OK to any person residing, working or attending school within the State of 117, ¶¶ 27-28, 776 P.2d 847, 850. Because Oklahoma who, after November 1, 1989, has been convicted, whether amended title 23, § 72 increases the poten- upon a verdict or plea of guilty or upon a plea of nolo contendere, or received a suspended sentence or any probationary term, or is cur- tial damages from three times the actual rently serving a sentence or any form of probation or parole for a damages to include up to ten times the [listed sex offence]. B. The provisions of the Sex Offenders Registration Act shall apply actual damages, the amendment cannot be to any person who after November 1, 1989, resides, works or attends viewed as merely a remedial or procedural school within the State of Oklahoma and who has been convicted or received a suspended sentence at any time in any court …… to commit change. The statute alters the liability of a a crime. defendant making the wrong potentially more costly. In addition, nothing in the 2011 OK CIV APP 85 statute reveals a legislative intent that it be THE HOWARD FAMILY CHARITABLE retroactive. … FOUNDATION, INC.; HOWARD Sudbury v. Deterding, 2001 OK 10, ¶ 19, 19 P.3d INVESTMENTS, LLC; ROBERT E. 856, 860. HOWARD, II, an Individual; MARILYN PATRICIA KELLY, an Individual; SCOTT ¶32 A review of OSORA reflects no clear leg- and CARLITA BEAUVAIS, Husband and islative attempt to apply the laws retroactively. Wife; GREG and JILL CASTRO, Husband The 1991 version of OSORA in effect at the time and Wife; JIMMIE M. RICHARDSON, an

1922 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Individual; DENNIS DAVIS, an Individual; Global, Inc. (MFG) are liable for damages pur- DON KOEBELIN, an Individual; CHRIS suant to 71 O.S.Supp.2004 §1-509(G) as aiders FLEMING, an Individual; DAVID SHEAR, and abetters of a fraudulent hedge fund invest- an Individual; BRIAN LORENTZ, an ment scheme perpetrated by Mark S. Trimble Individual; GEAD INVESTMENTS, LLC; (Trimble) and Phidippides Capital Manage- DAVID HUDIBURG and STEVE ment, L.L.C. (PCM). The trial court concluded HUDIBURG, as TRUSTEES OF THE PAUL defects in Plaintiffs’ Second Amended Petition HUDIBURG 1997 DYNASTY TRUST; could not be remedied by further pleading and STEVE HUDIBURG, an Individual; HARRY sustained MFG’s Motion to Dismiss for Lack of PATTERSON, an Individual; BOBBY Personal Jurisdiction and Failure to State a MASTERSON, an Individual; HAL Claim Upon Which Relief Can be Granted and STEINKE, an Individual; METROPOLITAN Archway’s Motion to Dismiss premised upon AUTO DEALERS ASSOCIATION, a Trade preemption of jurisdiction by the federal com- Group; PETER and CRYSTAL HODGES, modities scheme, a failure to state a claim as a Husband and Wife; AARON LONDON, an matter of law, failure to plead fraud with requi- Individual; and KEN WILKINS, an site specificity, improper venue based upon a Individual, Plaintiffs/Appellants, v. MARK forum selection clause, and the failure of either S. TRIMBLE, Individually; PHIDIPPIDES specific, or general personal jurisdiction. After CAPITAL MANAGEMENT, LLC; MF the dismissal, Plaintiffs’ Motion for New Trial GLOBAL, INC.; and ARCHWAY was denied. The trial court made the express TECHNOLOGY PARTNERS, L.L.C., findings necessary pursuant to 12 O.S.2001 Defendants/Appellees. §994(A) to allow appellate consideration of this judgment. No. 107,796. January 28, 2011 ¶2 We conclude Plaintiffs’ causes of action APPEAL FROM THE DISTRICT COURT OF against MFG based upon aiding and abetting OKLAHOMA COUNTY, OKLAHOMA fraudulent commodities transactions are pre- HONORABLE VICKI L. ROBERTSON, empted under federal law and no amendments TRIAL JUDGE to the pleadings may cure this defect. However, Plaintiffs’ claims against Archway include a AFFIRMED IN PART, REVERSED IN PART period of time when investments were within AND REMANDED the scope of the Oklahoma Uniform Securities Joseph H. Bocock, Spencer F. Smith, Kristin M. Act of 2004, 71 O.S.Supp.2004 §1-101 et seq. (the Simpsen, McAFEE & TAFT, Oklahoma City, Act). Plaintiffs’ Second Amended Petition rais- Oklahoma, and Kurtis J. Ward, LAW OFFICES es causes of action cognizable under the Act OF KURTIS J. WARD, Oklahoma City, Okla- and raises facts both showing minimum con- homa, for Plaintiffs/Appellants, tacts sufficient to allow an exercise of jurisdiction in conformity with due process and aver- Jon Epstein, HALL, ESTILL, HARDWICK, ring fraud with sufficient particularity. Conse- GABLE, GOLDEN & NELSON, P.C., Oklaho- quently, we affirm the trial court’s order in ma City, Oklahoma, and Heather L. Cupp, part, reverse it in part, and remand for further HALL, ESTILL, HARDWICK, GABLE, GOLD- proceedings. EN & NELSON, P.C., Tulsa, Oklahoma, and Anthony L. Paccione, Matthew D. Parrott, STANDARD OF REVIEW KATTEN, MUCHIN, ROSENMAN, LLP, New ¶3 Review of a trial court’s dismissal for fail- York, New York, for Defendant/Appellee, MF ure to state a claim upon which relief may be Global, Inc., Matthew C. Kane, Keith J. Klein, granted involves a de novo consideration as to Grant M. Lucky, RYAN, WHALEY, COLD- whether the petition is legally sufficient. Indi- IRON, SHANDY, P.C., Oklahoma City, Okla- ana National Bank v. State of Oklahoma Depart- homa, for Defendant/Appellee, Archway Tech- ment of Human Services, 1994 OK 98, ¶2, 880 nology Partners, LLC. P.2d 371, 375. When a motion to dismiss WM. C. HETHERINGTON, JR., PRESIDING includes evidentiary materials outside the JUDGE: pleadings, it is treated as one for summary judgment. 12 O.S.Supp.2004 §2012(B). ¶1 Plaintiffs appeal dismissal of their causes of action in which they claim Archway Tech- ¶4 When reviewing a motion to dismiss, the nology Partners, L.L.C. (Archway) and MF appellate court must take as true all of a chal-

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1923 lenged pleading’s allegations together with all ¶9 Archway, an Indiana limited liability com- reasonable inferences which may be drawn pany formed in 2002, has one office in Indiana from them. Hayes v. Eateries, Inc., 1995 OK 108, and another in New York. It sells a web-based ¶2, 905 P.2d 778, 780. “A pleading must not be software application named ATWeb which dismissed for failure to state a legally cogniza- consists of a suite of accounting modules for ble claim unless the allegations indicate beyond investment professionals such as fund manag- any doubt that the litigant can prove no set of ers. It also offers outsourcing services during facts which would entitle him to relief.” Frazier which Archway employees input data obtained v. Bryan Memorial Hospital Authority, 1989 OK from their fund manager customers into a Cli- 73, ¶13, 775 P.2d 281, 287. (Emphasis in ent Database, operate accounting modules, original). and perform other services, such as uploading mailing listing information provided by a fund ¶5 Motions to dismiss are generally viewed manager so that investor information will with disfavor, and to withstand a motion to appear on web-based statements. dismiss it is not necessary for a plaintiff to either identify a specific theory of recovery or THE FACTS ALLEGED set out the correct remedy or relief which may ¶10 Plaintiffs’ Second Amended Petition apply. When the trial court is considering a states that Trimble and PCM maintained Fund motion to dismiss, the court “should not ask was exempt from registration because its inves- whether the petition points to an appropriate tors were either “accredited investors”or “qual- statute or legal theory, but whether relief is ified eligible persons,”2 and neither Trimble possible under any set of facts that could be nor PCM were registered as commodity pool established consistent with the allegations.” operators or commodity trading advisors. Indiana National Bank v. State Department of Plaintiffs contend Trimble has never held any Human Services, 1994 OK 98, ¶4, 880 P.2d 371, licenses which would allow him to solicit 375-6. (Emphasis in original, citations “sales of any security.” Plaintiffs allege MFG, omitted.) by serving as a Futures Commission Merchant, was bound to follow rules of the National THE PARTIES Futures Association, it was obligated not to ¶6 Trimble, a resident of Oklahoma, is the make trades for a person or entity required to manager of PCM and a member of the Chicago be a licensed member but not so licensed, and Mercantile Exchange, a designated market for it had a duty of due diligence to take reason- trading commodity futures contracts. PCM is able steps to verify the licensing status of those an Oklahoma limited liability company with for whom it made trades. offices in Oklahoma which allegedly held itself ¶11 According to MFG, Trimble ran PCM, out as an exempt commodities pool operator. began the Phidippides hedge fund3 (Fund) in PCM is the general partner in Phidippides 2004, and he received consideration for invest- Capital LP, (PC) a Delaware limited partner- ment advice provided to its investors. In late ship with offices in Oklahoma. December of 2004, Trimble opened a personal ¶7 Plaintiffs are investors in a hedge fund commodities account with MFG, and in Octo- begun by Trimble which was originally named ber of 2007 PCM opened a commodities account 4 Phidippides Fund LP (Fund). After he changed with MFG. Fund’s investment strategy from stocks to ¶12 Plaintiffs’ Second Amended Petition futures in December of 2008, Trimble, accord- alleges that by at least October of 2007, Trimble ing to Plaintiffs, “configured a new limited and PCM began to issue false statements to partnership named Phidippides Capital LP.”1 Fund’s investors and paid themselves more ¶8 MFG is a Futures Commission Merchant than $2,000,000 in fees based on false and which acted as a clearing broker for Trimble inflated profit figures. Plaintiffs allege that and PCM. MFG is a Delaware corporation with Trimble and PCM obtained more than offices in Illinois and New York and no offices $34,000,000 from approximately sixty investors in Oklahoma. MFG provided clearing and for investment in Fund. execution services for accounts opened with it ¶13 According to Plaintiffs, in July of 2007, by Trimble and PCM. MFG also provided Trimble and PCM claimed a hardware failure Trimble and PCM with software which allowed necessitated a change in the periodic reports to them to execute trades. investors. In April of 2008, Trimble altered the

1924 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 investment strategy of Fund from day trading not see overall funding or trading activity. In in stocks to 100% commodities futures. Trimble the fourth quarter of 2008, Trimble changed the and PCM moved Fund’s accounts from other data reporting intervals for the Fund investors companies5 to MFG after April of 2008. Between from monthly to quarterly. Archway terminat- May of 2007 and January of 2008, i.e., prior to ed all services to PCM and Trimble in January when Fund’s accounts were moved to MFG, its of 2009 after being notified by the F.B.I. that investors allegedly sustained losses of Trimble had provided Archway with false $19,101,976.46 via Plaintiffs’ purchases of pro rata information.7 shares in the Fund from Trimble and PCM. APPELLATE ISSUES ¶14 In early 2007, Trimble contacted Arch- way about its ATWeb software applications. ¶18 Plaintiffs’ causes of action against MFG On October 15, 2007, Archway and PCM and Archway are premised upon the statutory entered into a licensing agreement under which grounds stated in §1-509(G). That statute Archway provided hosted services consisting imposes joint and several liability “to the same of installing and providing access to a PCM extent” as that of those who are liable under 71 Client Database on its ATWeb software appli- O.S.Supp.2004 §1-509(B) through (F) on any- cation. Archway and PCM entered into an one who materially aids “in the conduct giving “Operations Outsourcing” agreement on rise to the liability.” MFG and Archway both November 15, 2007, under which Archway argue they did not materially aid in an unlaw- personnel in its Indianapolis, Indiana office ful sale of securities or provide investment entered PCM monthly transaction data into the advice. As a consequence, both allege, they did PCM Client Database hosted on the ATWeb not meet the requirement that they “materially site. PCM was to provide the data to build the aid in the conduct giving rise to liability under database. subsections B through F.” Further, they claim, ¶15 According to Archway, under the out- Oklahoma courts do not have and should not sourcing agreement, the fund manager controls exercise jurisdiction due to a lack of minimum and has the responsibility for: investor’s access; contacts. what data is provided to investors; reviewing ¶19 The questions presented for determina- and approving the results; the accuracy of the tion are whether: (1) Plaintiffs have a cause of data; and bookkeeping judgments. Archway action under the Act, (2) the Commodities claims it does not handle cash or securities Exchange Act, 7 U.S.C. §1, et seq., preempts an trades, does not have contact directly with exercise of jurisdiction, (3) if they have not investors, does not provide the individual 6 done so, Plaintiffs may state a cause of action investors in funds with services, and supplies by amendment of their Second Amended Peti- technical support to fund managers, not indi- tion, (4) if minimum contacts exist, is an exer- vidual investors. cise of jurisdiction consistent with due process, ¶16 Trimble provided Archway with histori- and (5) Plaintiffs aver fraud with sufficient par- cal and monthly Fund data for November of ticularity? 2007 through the fourth quarter of 2008. Trim- ble’s data included faxed MFG account state- PREEMPTION ments which allegedly had been altered by ¶20 MFG and Archway claim preemption him. Plaintiffs claim Archway could have veri- applies to Plaintiffs’ causes of action against fied this information like it did with bank state- them. Plaintiffs argue federal preemption does ments, and Archway claims it had no way to not extend to their private causes of action but retrieve MFG’s information directly. only extends to states’ statutory measures ¶17 In late 2007, Trimble arranged access to embodying administrative agency regulatory the ATWeb online investor portal for Fund’s functions which might conflict with the regula- investors. The investors then were able to use a tory role of the CFTC. Plaintiffs argue MFG’s password to login and access individual data processing of trades for Trimble and PCM reported on the site such as income, expenses, facilitated their fraudulent scheme, as did contributions, withdrawals, gains or losses, Archway’s posting on the ATWeb investor por- fees, and balances for their accounts. The tal of information it had failed to verify because investors could view, generate, and print out they relied upon that information when mak- reports about their individual shares, but could ing further investment decisions.

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1925 ¶21 In order to state a cause of action for aid- ¶24 Plaintiffs seek to impose on MFG the ing and abetting pursuant to §1-509(G)(5), aider and abettor liability provided for by the Plaintiffs must show that Trimble and PCM are Legislature in §1-509(G)(5). “In determining liable pursuant to §§1-509 (B) - (F) of the Act. whether a statute applies to a given set of facts, Section 1-509(B) of the Act imposes liability we focus on legislative intent which controls upon one who “sells a security” in violation of statutory interpretation.” Keating v. Edmondson, 71 O.S.Supp.2004 §1-3018 by means of an untrue 2001 OK 110, ¶8, 37 P.3d 882, 886. (Footnotes statement of or omission to state a material omitted.) Statutory intent generally is ascer- fact. Similarly, 71 O.S.Supp.2004 §1-509(C) tained from the whole act, in light of its general imposes liability upon a buyer who makes an purpose and objective. Independent School Dist. untrue statement of or omits to state a material No. I-20 of Muskogee County v. Oklahoma State fact. Liability is imposed pursuant to 71 Department of Education, 2003 OK 18, ¶13, 65 O.S.Supp.2004 §1-509(D) upon “a broker-deal- P.3d 612, 617. (Footnote omitted.). er or agent that sells or buys a security in violation of 71 O.S.Supp.2004 §1-401(A), 71 ¶25 An analogous situation was examined in O.S.Supp.2004 §1-402(A), or 71 O.S.Supp.2004 Central Bank of Denver, N.A. v. First Interstate §1-506.9 One will be liable pursuant to 71 Bank of Denver, N.A., 511 U.S. 164, 114 S.Ct. O.S.Supp.2004 §1-509(E) if acting as an invest- 1439 (1994), in which the Court noted Congress ment advisor or investment advisor represen- had the power to impose aiding and abetting tative in violation of §1-506, 71 O.S.Supp.2004 liability if it had chosen to do so but it had not §1-403 or §1-404.10 Section 1-509(F) of the Act done so, and finding no private right of action imposes liability upon “[a] person that received, would be presumed to exist under Securities directly or indirectly any consideration for pro- Exchange Act of 1934 §10(b), 15 U.S.C. §78j(b) viding investment advice to another” who as it was then-enacted. “The issue is not wheth- employs a device, scheme, or artifice to defraud er it is good public policy to impose civil liabil- or who engages in a course of business which ity on aiders and abettors but whether aiding “operates or would operate as a fraud or deceit and abetting is covered by the statute.” 511 U.S. on another person.” at 177, 114 S.Ct. at 1448.11 ¶22 Absent the establishment of prerequisite ¶26 The transaction forming the basis for liability by a primary offender, no liability may applying §1-508(G) necessarily must involve a attach for aiding and abetting under §1-509(G). security transaction within the ambit of the See Nikkel v. Stifel, Nicolaus & Co., Inc., 1975 OK Act.12 As a prerequisite for the liability of an 158, 542 P.2d 1305 (finding aiding and abetting aider or abettor, the one who allegedly is aided liability would not lie under predecessor stat- or abetted must be liable under one of the ute 71 O.S.1971 §408 absent such primary lia- specified statutory grounds stated in the Act. bility). We therefore canvas the appellate record ¶27 MFG argues it has no liability because to see whether Plaintiffs state or may amend Oklahoma’s Act derives from the Uniform their Second Amended Petition so as to state a Securities Act from the National Conference of cause of action cognizable under the Act. Commissioners on Uniform State Laws, Com- ¶23 Plaintiffs need not obtain judgment in ment 11 of which provides: “Under 509(g)(4), their favor against a primary wrongdoer in the performance by a clearing broker of the order to state a cause of action for aiding and clearing broker’s contractual functions — even abetting, but only must show the primary though necessary to the processing of a trans- wrongdoer is “liable,” i.e., subject to suit for action — without more would not constitute civil damages. See South Western Oklahoma material aid or result in liability under this sec- Development Authority v. Sullivan Engine Works, tion. See also Ross v. Bolton, 904 F.2d 819 (2nd 1996 OK 9, 910 P.2d 1052 (analyzing aiding and Cir. (N.Y.) 1990).”13 Under our standard of abetting liability set forth in predecessor stat- review, we must take as true Plaintiffs’ allega- ute 71 O.S.1991 §408, finding prior reduction to tions MFG had knowledge of additional facts judgment unnecessary, and holding material and circumstances which would render this participants were jointly and severally liable comment inapplicable. Nevertheless, we must with primary violator). We must conclude no conclude the Act does not apply to Plaintiffs’ such showing is possible here as to MFG under causes of action against MFG because those Plaintiffs’ Second Amended Petition, nor is the claims are based upon commodities transac- defect correctable by further amendment. tions which are pre-empted.

1926 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 ¶28 At first blush it might appear a cause of ma’s state courts due to the explicit federal action might be pursued in the Oklahoma preemption of jurisdiction. courts based upon the violation of federal com- ¶31 As to Archway, a different conclusion is modities laws, especially given Congress’s required as to jurisdiction and possible liability. provision, when defining the jurisdiction of the Plaintiffs’ Second Amended Petition recites Commodities Futures Trading Commission, that Trimble began soliciting funds in 2004 for that “[n]othing in this section shall supersede investments in securities which would be sub- or limit the jurisdiction conferred on courts of ject to the Act, he began accepting funds on the United States or any State,” 7 U.S.C. behalf of PCM in 2005, and he and PCM issued §2(a)(1)(A)(II), and how, in 7 U.S.C. §13c(a), false statements in violation of the Act begin- Congress provides that one who commits or ning in at least October of 2007. Plaintiffs also who willfully aids or abets a violation of the allege Trimble was never licensed to sell securi- Commodity Exchange Act or who violates any ties and that he and PCM were selling unregis- “rules, regulations, or orders issued pursuant tered securities in violation of the Act. Plaintiffs to this chapter . . . may be held responsible for further allege Trimble operated Fund using the such violation as a principal.” Indeed, after services of Merlin Securities and that stocks, i.e. somewhat confusing and conflicting interpre- securities subject to the Act, were the major tations of prior commodities law finding an 14 portion of the investments at that earlier time. implied private right of action, Congress explic- Consequently, it appears Plaintiffs state facts itly provided for a private right of action, and consistent with liability on the part of Trimble included liability for anyone who “wilfully” and PCM under the Act. aids or abets a violation which causes damages to a person with “an interest or participation in ¶32 Archway argues it merely recorded infor- a commodity pool”15 in 7 U.S.C. §25(a)(1)(C)(iii), mation provided by Trimble and PCM and which became effective on or after the date of made it available. Under §1-509(G)(5), Arch- enactment of the Futures Trading Act of 1982, way must meet “the burden of proof that [it] i.e. January 1, 1983. 7 U.S.C. §25(d). did not know and, in the exercise of reasonable care could not have known, of the existence of ¶29 However, in that same enactment, Con- the conduct by reason of which liability is gress also explicitly placed “exclusive jurisdic- alleged to exist.” Plaintiffs produced e-mail tion of actions brought under [that] section” in communications,17 dated prior to when Fund’s “[t]he United States district courts.” 7 U.S.C. investments were restricted to commodities, §25(c). (Emphasis added.) State courts “have raising facts about which reasonable minds inherent authority to adjudicate claims arising could differ whether Archway exceeded the under the laws of the United States, unless Con- highly restricted role it claims to have under- gress affirmatively assigns exclusive jurisdic- taken when performing accounting services. tion over a federal claim to the federal courts.” Further, the question whether aid is “material” Reeds v. Walker, 2006 OK 43, ¶11, 157 P.3d 100, presents a factual determination which is 107. (Footnotes omitted, emphasis added.) dependent upon the development of evidence Congress has spoken. Once Fund’s invest- and which is not amenable to determination in ments were solely in commodities futures, any a summary fashion on a motion to dismiss. See state court jurisdiction was pre-empted. Hirata Corporation v. J.B. Oxford and Company, ¶30 For this reason, the implied private right 193 F.R.D. 589 (S.D. Indiana 2000) (addressing of action recognized in decisions such as W&W whether a petition was subject to dismissal Farms, Inc. v. Chartered Systems Corporation of upon a motion and applying an Indiana securi- New York, Ltd., 542 F. Supp. 56 (N.D.Ind. 1982), ties statute regarding the question of material Witzel v. Chartered Systems Corporation of New aid by a clearing broker). York, Ltd., 490 F.Supp. 343 (D. Minn.1980), and ¶33 Plaintiffs’ Second Amended Petition R. J. Hereley & Son Company v. Stotler & Compa- claims they suffered financial losses between ny, 466 F.Supp. 345 (N.D. Ill. 1979), which look May of 2007 and January of 2008 as a result of to §2(a)(1)(A)(II) and interpret the law under being induced to invest or re-invest in pro rata prior legislation,16 offer no basis for reversal shares in the Fund based upon false informa- here. Plaintiffs’ Second Amended Petition, tion provided via the ATWeb site by primary despite appearing to raise factual issues which actors Trimble and PCM. According to Plain- would satisfy a cause of action under the fed- tiffs, during this time Fund was structured as a eral scheme, may not be pursued in Oklaho- limited partnership and its investments

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1927 involved day trading in a stock portfolio. Con- tion is exercised when a defendant has certain sequently and without a need for amendment, minimum contacts with a forum; whether such Plaintiffs stated claims for secondary liability jurisdiction exists presents a question of law. due to aiding and abetting against Archway Willbros USA, Inc. v. Certain Underwriters at based upon securities transactions18 subject to Lloyds of London, 2009 OK CIV APP 90, 220 P.3d the Act. Dismissal of Archway based upon fed- 1166. eral preemption is reversed. ¶37 As Zippo Manufacturing Company v. Zippo MINIMUM CONTACTS Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa. 1997) suggests, under a minimum contact inquiry for ¶34 Archway argues it is a non-resident specific jurisdiction, the focus is on the quality without sufficient minimum contacts in Okla- of activity over the Internet, and as Burger King homa and Plaintiffs fail to meet their burden to Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, support an exercise of jurisdiction. Archway 85 L.Ed.2d 528 (1985), teaches, changes in mod- claims it merely agreed to provide hosting ser- ern commercial life have obviated the need for vices which would be performed in Indiana, physical presence within a state to establish Trimble was to provide accurate MFG informa- minimum contacts for personal jurisdiction. tion to be posted, it had no independent ability Accord, Barrett v. Catacombs Press, 44 F.Supp.2d to secure the MFG information to be posted, it 717 (E.D. Pa. 1999). was not directly involved with Fund’s investors, and its client was Fund, not the investors. ¶38 The law when jurisdiction is based upon Archway claims it has no licenses, property, internet activity is evolving. A sliding scale employees, offices, bank accounts, agents or framework is proposed in Zippo for minimum telephone numbers in Oklahoma, does not pay contacts analysis when internet activity is at taxes there and its employees have not visited issue. At one end of the scale is a passive web- its three customers there. Archway argues it site on which a defendant has posted informa- had no reasonable expectation of exposure to tion which is accessible by persons in foreign lawsuits in other places than Indiana. In addi- jurisdictions, and at the other end of this scale tion to a lack of general jurisdiction, Archway are defendants who clearly do business through claims its activities were not purposeful avail- a commercial website. When a user is able to ment so as to invoke specific jurisdiction. exchange information with a website, the mid- dle of the scale, the exercise of jurisdiction is ¶35 Under Oklahoma’s long-arm statute, determined after examining the level of inter- “[a] court of this state may exercise jurisdiction activity and commercial nature of the exchange on any basis consistent with the Constitution of information. of this state and the Constitution of the United States.” 12 O.S.Supp.2002 §2004(F). This juris- ¶39 However, after discussing Zippo’s sliding diction may be exercised “to the outer limits scale analysis, another panel of this Court rec- permitted by the Oklahoma Constitution and ognized, in Lively v. IJAM, Inc., 2005 OK CIV the Due Process Clause of the Fourteenth APP 29, 114 P.3d 487, that a more traditional Amendment to the United States Constitu- jurisdiction analysis also may be applied tion,” which limits “have been established by because any underlying transactions using the the United States Supreme Court.” Conoco, Inc internet are the result of actions in the physical v. Agrico Chemical Company, 2004 OK 83, world. “What is clear from a review of the case ¶17, 115 P.3d 829, 834. law is that the key to analyzing the personal jurisdiction in internet-related cases is to look ¶36 Jurisdiction may be either general or spe- at the nature and quality of the defendant’s cific. A court is permitted to exercise general internet activity.” Id. ¶34, at 496. jurisdiction over a non-resident defendant if that defendant has engaged in systemic and ¶40 As suggested in Lively, we conclude it is continuous activities, Helicopteros Nacionales de also appropriate to analogize to the issue of Columbia v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 contacts under a traditional analysis based L.Ed.2d 404 (1984), which are so substantial upon mail or telephone contacts. Here, Plain- and of such a nature as to justify suit on causes tiffs allege they own pro rata shares in Fund, of action arising from or related to dealings and Archway’s numerous commercial interac- distinct from those activities. International Shoe tions with Trimble and PCM in their operation Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. of Fund form the basis for Plaintiffs’ claims for 154, 159, 90 L.Ed. 95 (1945).19 Specific jurisdic- Archway’s secondary liability for aiding and

1928 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 abetting. Unlike purely passive sites with tors, were purposeful and provided minimum advertisements or information viewable by contacts with the Fund, its owners, and the anyone accessing the internet, the information primary actors within the forum Oklahoma. posted on Archway’s ATWeb site was specifically designed to be accessible only through the FORUM SELECTION use of a password system by Fund’s investors. ¶43 Archway argues its agreement with Its activities were specifically and purposefully Trimble and PCM contains a forum selection directed at Fund and its investors. Plaintiffs’ clause, Plaintiffs are third-party beneficiaries of alleged damages allegedly arise out of or relate the agreement, Plaintiffs’ claims arise out of to those activities, and it created continuing breaches of the agreement, and Plaintiffs’ lack relationships and obligations. See Burger King of an allegation of breach of contract, despite Corporation v. Rudzewicz, 471 U.S. 462, 472-473, that “the alleged failure to verify stems from a 105 S.Ct., 2174, 2182-3. duty purported to arise in the contract,” does ¶41 We also find instructive Goldstein v. not pose a barrier to enforcement of the forum Christiansen, 638 N.E.2d 541 (Ohio 1994), in selection clause. which Florida accountants contracted to provide financial statements and information to a ¶44 “Ordinarily, absent compelling reasons group whose plurality resided in Ohio, making otherwise, forum selection clauses are enforce- it not patent and unambiguous that the Ohio able.” State ex. rel. Fischer v. South Atlantic court lacked in personam jurisdiction over them. Dredging Co., Inc., 2000 OK CIV APP 123, ¶7, 15 The accountants contended they owed a duty P.3d 523, 525 (citing Carnival Cruise Lines, Inc. v. to certain partnerships but not the individual Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 1528, 113 limited partners. The Ohio Court found where L.Ed.2d 622 (1991)). However, private individ- a general partner owes a fiduciary duty to the uals may not oust22 a state of jurisdiction over a limited partners, a professional relationship controversy which is properly presented and with the general partner extended to those in in which forum they have the constitutionally privity with the general partner, i.e., the limited required minimum contacts. Id. A standard of partners.20 Even though Ohio’s long-arm juris- “unfair or unreasonable” may be applied to diction statute did not, as Oklahoma’s does, invalidate forum selection clauses which the extend to the full limits of due process, the parties have not negotiated or discussed such a Ohio court concluded it had jurisdiction over clause, or there is an absence of meaningful the non-resident, Florida accountants.21 choice. Eads v. Woodmen of the World Life Insur- ¶42 We are not persuaded Archway’s argu- ance Society, 1989 OK CIV APP 19, ¶13, 785 P.2d ment it lacks minimum contacts for an exercise 328, 331. The party seeking to avoid such a of jurisdiction because of the nature of its con- clause has the burden to show its enforcement tacts with the individual Plaintiffs answers the is unreasonable under the circumstances. question of jurisdiction. Plaintiffs’ aiding and Adams v. Bay, Ltd., 2002 OK CIV APP 117, 60 abetting cause of action against Archway is P.2d 509. based upon alleged material aid rendered to ¶45 Here, the trial court concluded dismissal Trimble and PCM. Plaintiffs are “investors” was warranted solely because no cause of witho pr rata shares in Fund, Archway’s con- action could be stated by further amendment tracts were with Fund, and both Trimble and of Plaintiffs’ Second Amended Petition. We PCM operated Fund. To require a direct inter- action with each individual plaintiff would have determined otherwise, and the validity of convert an aider and abettor into a primary the forum selection clause under the circum- actor and render meaningless and surplusage stances of this controversy requires the deter- 23 the provisions of §1-509(G)(5). It is the aiding mination of fact questions. It is not the func- and abetting of the primary actors which cretion of the appellate courts to make first- ates liability under §1-509(G)(5). Minimum instance determinations of fact which were contacts looks to the activities of the parties properly presented to the trial court but left within a forum and whether constitutional due unresolved. King v. King, 2005 OK 4, 107 P.3d process is satisfied by an exercise of jurisdic- 570. The issue whether the forum selection tion. Archway’s activities, including the limit- clause comports with constitutional standards ed, targeted, password protected access to and public policy is one for determination by ATWeb provided to Plaintiffs as Fund’s inves- the trial court upon remand.

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1929 FRAUD detriment, causing them damages of some $19,101,976.46 between May of 2007 and Janu- ¶46 Archway argues Plaintiffs have failed to ary of 2008. Plaintiffs also allege PCM and plead fraud with sufficient particularity. We Trimble failed to disclose the information about disagree. the methods used to make trades and in whose ¶47 The elements of actionable common law names trades were made, how funds were co- fraud are the making of a false material misrep- mingled, and how registrations required by law resentation which is made as a positive asser- for Trimble and PCM and for certain securities tion, is either known to be false or made reck- were not obtained. Plaintiffs claim all these lessly without knowledge of the truth, is made actions caused Trimble and PCM to violate the with an intention it be acted upon, and which Act, and Archway is alleged to have materially is relied on to the other party’s detriment. Bow- aided this fraud by the provision of fraudulent man v. Presley, 2009 OK 48, ¶13, 212 P.3d 1210, account information which was intended to and 1218. These elements must be pled in accor- was relied upon by Plaintiffs and by failing to dance with 12 O.S.2001 §2009(B), that is, the verify information. Plaintiffs allege they received “circumstances constituting fraud . . . shall be false information every time they logged on to stated with particularity.” As instructed by Gay the ATWeb site. The fraud of Trimble and PCM24 v. Akin, 1988, OK 150, ¶8, 766 P.2d 985, 990: are stated with enough specificity to allow Archway to determine the factual basis for the In construing the Oklahoma Pleading aiding and abetting claim based upon fraud by Code’s provisions which govern fraud alle- Trimble and PCM. gations, and in determining the detail necessary to satisfy the “particularity” require- CONCLUSION ment, we are obliged to look to the Federal ¶49 Transactions prior to when Fund’s invest- Rules of Civil Procedure — the progenitor ments were solely in commodities futures were of our pleading code. Since the text of Fed- within the ambit of the Act. However, Plain- eral Rule 9(b) is incorporated verbatim in tiffs’ claims against MFG arise solely from the Oklahoma pleading code, federal and commodities transactions for Fund. As to those state jurisprudence is instructive. We note transactions, the Act is inapplicable and Con- initially that the particularity requirement gress has placed jurisdiction over private rights extends to all averments of fraud, regard- of actions claiming violations of the federal less of the theory of legal duty — statutory, commodities regulations, including fraudulent tort, contract or fiduciary. To satisfy the activities, solely within the federal district requirements of §2009(B), it is unnecessary courts. We must conclude Plaintiffs’ causes of to plead each element of fraud in detail if action premised on commodities transactions the circumstances constituting fraud are are pre-empted, further amendment of their stated with particularity. (Footnotes Second Amended Petition will not cure this omitted.) jurisdictional defect, and MFG was entitled to The specificity required is only so much as dismissal as a matter of law. Plaintiffs’ Second will apprise a defendant of the conduct com- Amended Petition sufficiently states a cause of plained of so the opposing party may prepare action against Archway premised upon aiding responsive pleadings and defenses. Id., ¶18, at and abetting violations of the Act by Trimble 993; see also First Federal Savings & Loan Asso- and PCM via allegedly fraudulent activity in ciation of Pittsburgh v. Oppenheim, Appel, Dixon the operation of Fund. Dismissal of such claims & Co., 634 F.Supp. 1341 (S.D.N.Y. 1986)(ana- is reversed and the case is remanded for fur- lyzing particularity of third-party claim alleg- ther proceedings. ing aiding and abetting of securities fraud). ¶50 What, if any, duties may be owed based However, §2009(B) also provides “knowledge upon providing accounting and other services, and other conditions of mind of a person may whether Archway “materially” aided in con- be averred generally.” duct giving rise to liability, and whether in the ¶48 Trimble and PCM are alleged to have exercise of reasonable care it could not have made false and inflated representations about known of conduct giving rise to liability are the Fund’s assets and its profitability, both dependent upon first-instance factual determi- historically and in more recent times, which nations for the trial court’s consideration upon representations were relied upon to Plaintiffs’ remand, not by this Court at this stage of the

1930 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 proceedings. The judgment dismissing Plain- requirements. The clearing agent’s actions were deemed simply those of an innocent clearing agent conducting ordinary business. tiffs’ Second Amended Petition is AFFIRMED 14. With the amendments effective January 11, 1983, Congress IN PART, REVERSED IN PART, AND removed language from §13c(a) which provided persons violating its provisions “may be held responsible in administrative proceedings under REMANDED for further proceedings consis- this Act for such violation as a principal.” (Emphasis added.) Prior to tent with this opinion. that amendment, some courts rejected recognition of an implied private judicial right of action for aiding and abetting pursuant to 7 U.S.C. BELL, C.J., and HANSEN, J., concur. §13c(a) or under anti-fraud provisions set forth in 7 U.S.C. §§4 b and 4o, finding only administrative procedures were available. e.g., Johnson v. Chilcott, 590 F.Supp. 204 (D. Colo. 1984). 1. It does not appear that this limited partnership is named as a 15. A pool is defined as “any investment trust, syndicate or similar party in these proceedings. Plaintiffs claim they had no knowledge of form of enterprise operated for the purpose of trading commodity this new entity until December of 2008, when Trimble sought their interests.” 17 C.F.R. §4.10(d)(1). signatures for a Subscription Agreement to it. PCM was its general 16. In Merrill, Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, partner. 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982), the United States Supreme Court 2. These terms are defined at, respectively, 17 C.F.R. §4.7 (2008) and found the 1974 amendments, including the addition by Congress of the 17 C.F.R. §230.501(a)(1)-(3) and 17 C.F.R. §230.501(a)(8) (2008). savings clause in §2(a) to the exclusive jurisdiction provisions separat- 3. Plaintiffs’ Second Amended Petition alleges the Fund originated ing the functions of the Securities and Exchange Commission and the in 2003 and was first structured as a limited partnership named Phi- Commodity Futures Trading Commission, indicated an intent to pre- dippides Fund LP. serve the previously recognized implied private right of action as a 4. A third commodities account with MFG was opened by Phidip- remedy under the Commodities Exchange Act. However the later pides Capitol LP in late August of 2008. amendments creating an explicit private right of action obviate the 5. According to Plaintiffs, Fund’s initial investments were in stocks need to construe such a implied right of action under §2(a). and made primarily through Merlin Securities. That company is not 17. For example, a January, 2008 e-mail stream of communication named as a defendant. between Trimble and an employee identified as an executive vice 6. Whether Plaintiffs’ merely are “investors” or, due to alleged “pro president at Archway notes Trimble’s commingling of “personal rata” purchases, they have some other legal status is not raised by any money” in investors’ accounts, how there is a need to “clean this up” party and is unclear from the appellate record. For convenience only, under accounting rules, and advises Trimble could move the money we use the term “investor” for those with an interest in Fund. into a Miscellaneous Assets account where it could stay “forever,” but 7. Plaintiffs attached a complaint against Trimble, PCM and Phi- also warns he “would be short $1,500,000 of ‘fund’ cash to pay out dippides Capital LP by the Commodities Futures Trading Commission your investors” if Fund were liquidated. (CFTC) in the United States Court for the Western District of Oklaho- 18. In so determining, we address only the legal sufficiency of Plain- ma as an exhibit to their opposition to MFG’s motion. In that com- tiffs’ Second Amended Petition as to the Act, not the merits of Plaintiffs’ plaint, the CFTC alleges the named defendants, inter alia, issued false allegations of aiding and abetting, which are fact dependent. profit and loss statements when operating a commodities pool, 19. “[T]o establish general jurisdiction, the defendant must be redeemed pool participant interests based on falsely reported profits, conducting substantial and continuous local activity within the forum and operated the pool as a Ponzi scheme. According to a February 3, state.” Smith v. Basin Park Hotel, Inc., 178 F.Supp.2d 1225 (N.D.Okla. 2009 e-mail to Trimble attached as an exhibit to Plaintiffs’ response to 2001). In Smith, the Court applied the 12 factors identified by the Tenth Archway’s motion to dismiss, Archway informed him it would no Circuit in Soma Medical International v. Standard Chartered Bank, 196 F.3d longer provide services to “Phidippides” on the advice of counsel and 1292 (10th Cir. (Utah) 1999) when analyzing general jurisdiction. Those as indicated in a letter provided earlier that day. factors include whether, within that state, the defendant: (1) engages in 8. Section 1-301makes it unlawful to offer or sell a security unless business; (2) is licensed to do business; (3) owns, leases, or controls real it is registered or exempt. or personal property or assets; (4) maintains employees, offices, agents, 9. Section 1-401(A) makes it unlawful to transact business in the or bank accounts; (5) is present in through shareholders residing there; state as a broker-dealer unless the person is registered or exempt from (6) maintains phone or fax listings; (7) advertises or solicits business; registration under the Act, §1-402(A), makes it unlawful to transact (8) has salespersons traveling to it; (9) pays taxes; (10) visits potential business in Oklahoma as an agent unless the person is registered or customers; (11) recruits employees; and (12) generates a substantial exempt from registration under the Act, and §1-506 imposes liability percentage of its national sales through revenue generated from infor misrepresentations concerning registration or exemptions for any state customers. Archway cites several of these factors, but general person or security. jurisdiction is not the only potential basis for jurisdiction. 10. Section 1-403 makes it unlawful for a person to transact busi- 20. As noted supra , nt. 7, Plaintiffs’ legal status due to their pur- ness in Oklahoma unless the person is registered or exempt from reg- chases of pro rata shares in Fund is unclear from the appellate record. istration as an investment advisor, and §1-404 makes it unlawful for an 21. The Ohio Court ultimately concluded dismissal was appropri- individual to transact business in Oklahoma unless the individual is ate because conflicting statements of fact had been resolved by the trial registered under the Act or exempt from registration. court and the relief requested, a writ of prohibition, was neither war- 11. In the framing of their arguments, Plaintiffs tend to ignore that ranted nor a proper remedy. the Act’s stated purpose and scope is the regulation of securities, not 22. Courts also possess the discretion to decline, by applying forum an enactment of general aiding and abetting liability. To adopt the non conveniens, to exercise jurisdiction and thereby give effect to the broad construction proposed by Plaintiffs would potentially convert a parties’ agreement regarding forum selection. Crowson v. Sealaska Cor- statute targeting securities transactions into one applying to all man- poration, 705 P.2d 905 (Alaska 1985); see also, M/S Bremen v. Zapata Off- ner of frauds and misrepresentations which do not involve such trans- Shore Company, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513. actions. This we will not do. 23. Nothing in the record adduced to date indicates Plaintiffs were 12. Comments by the National Conference of Commissioners on either involved in negotiation or that they were signatories to the Uniform State Laws note that Oklahoma’s Uniform Securities Act var- Archway-Fund agreement. Their contacts with the ATWeb site appear ies by its addition of subsection (g)(5) to the Uniform Act’s version of to be via their receipt of information sent on behalf of Fund (of which §509. Our conclusion only securities, not commodities, are the focus of Plaintiffs owned pro rata shares), and no prior “fair warning” of the the Act is buttressed by the Legislature’s declaration in 71 O.S.Supp.2004 forum selection provisions to Plaintiffs appears in the evidence §1-509(A), that “[e]nforcement of civil liability under this section is adduced to date. Whether they consented to the forum selection subject to the Securities Litigation Uniform Standards Act of 1998,” clause, otherwise possess the constitutionally required minimum con- Pub.L. 105-353, (see 15 U.S.C. §78a), in which Congress addressed how tacts with Indiana, or it is fair to apply the forum selection clause in the national standards were necessary because, although state securities context of an aiding and abetting cause of action requires first-instance regulation continued in importance, since the Private Securities Litiga- factual determinations for the trial court. tion Reform Act of 1995 a shift in the number of securities class action 24. When analyzing whether fraud is stated with sufficient speci- lawsuits, especially those alleging fraud, from federal to state courts ficity, it is important to remember that Archway’s liability is not based had prevented that act from fully achieving its objectives. on primary liability but instead upon materially aiding and abetting 13. In Ross, the Court dismissed a complaint, finding a clearing conduct giving rise to secondary liability under subsections B through agent had no liability as an aider and abettor of a stock scheme because F of §1-509. the clearing agent had no fiduciary duty to the investor and, in the absence of that duty, the investor had failed to meet heightened scienter

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1931 2011 OK CIV APP 84 Maxxum’s claims to recover for labor and services under 12 O.S. §936. Maxxum objected, MAXXUM CONSTRUCTION, INC., an arguing that (1) §936 did not authorize an Oklahoma corporation, Plaintiff/Appellant, award of prevailing party attorney’s fees in v. FIRST COMMERCIAL BANK, an this equitable action to recover for unjust Oklahoma bank, Defendant/Appellee, Khoi enrichment, and (2) in equity actions, attor- Vu and My Do, Defendants. ney’s fees may not be recovered absent evi- Case No. 107,586. April 29, 2011 dence of clearly wanton, vexatious, malicious or other egregious conduct, of which there was APPEAL FROM THE DISTRICT COURT OF none in the present case. OKLAHOMA COUNTY, OKLAHOMA ¶6 The trial court held for Bank, and granted HONORABLE PATRICIA G. PARRISH, Bank some $31,000.00 in attorney’s fees, as well JUDGE as about $930.00 in costs. Maxxum appeals, AFFIRMED challenging the award of attorney’s fees as unjust and unauthorized under §936 in this Duane Miller, Yukon, Oklahoma, for Appellant, equity case. R. Stephen Haynes, R. Stephen Haynes, P.C., ¶7 “The amount to be awarded as a fee . . . is Oklahoma City, Oklahoma, for Appellee. a matter left to the discretion of the trial court LARRY JOPLIN, JUDGE: and will not be disturbed absent an abuse of discretion.” Finnell v. Seismic, 2003 OK 35, ¶8, ¶1 Plaintiff/Appellant Maxxum Construc- 67 P.3d 339, 342. (Footnotes omitted.) However, tion, Inc., an Oklahoma corporation (Maxxum), the question of whether a party is entitled to an seeks review of the trial court’s post-judgment award of attorney’s fees under statute presents order granting attorney’s fees and costs to one of law which we review de novo, without Defendant/Appellee First Commercial Bank, deference to the lower court’s determination. an Oklahoma bank (Bank). In this appeal, See, e.g., Corr v. Smith, 2008 OK 12, ¶15, 178 P.3d Maxxum challenges the trial court’s award as 859, 863. contrary to law. ¶8 “In any civil action to recover for labor or ¶2 Bank loaned money to Defendants Khoi services rendered, . . . , the prevailing party Vu and My Do for the purchase of real prop- shall be allowed a reasonable attorney fee to be erty and construction of a restaurant, and set by the court, to be taxed and collected as Defendants granted Bank a mortgage on the costs.” 12 O.S. §936. “[I]t is the underlying property and building as security. Defendants nature of the suit itself which determines the contracted with Maxxum for construction of applicability of the labor or services provisions the restaurant, but Defendants failed to pay of §936.” ABC Coating Co., Inc. v. J. Harris & Maxxum about $96,000.00 due under the con- Sons Ltd., 1987 OK 125, ¶9, 747 P.2d 271, 273. struction contract. (Footnotes omitted.) “The question is whether ¶3 Maxxum then commenced the instant the damages arose directly from the providing action against Defendants and Bank to collect of labor or services, such as the failure to pay the amount due. As against Bank, Maxxum for those services, or from an aspect collaterally alleged, first, that Bank guaranteed payment of relating to labor or services.” Id. So, if the the unpaid balance, and second, because the underlying nature of the suit is one to recover value of Bank’s collateral had been increased for unpaid labor or services rendered, §936 by Maxxum’s uncompensated construction, authorizes an award of prevailing party attor- Bank had been unjustly enriched. ney’s fees, even though recovery is claimed under an equitable theory. Welling v. American ¶4 On motion of Bank, the trial court sum- Roofing and Sheet Metal Co., Inc., 1980 OK 131, marily rejected Maxxum’s guarantee claim, ¶8, 617 P.2d 206, 210. (Citations omitted.) and that judgment is now final. After trial on the merits, the trial court rejected Maxxum’s ¶9 Maxxum argues that Bank is not entitled unjust enrichment claim, and that judgment is to an award of attorney’s fees as prevailing party on the equitable claim of unjust enrich- now final. ment because, ordinarily, the prevailing party ¶5 Bank subsequently sought an award of on a claim in equity is not entitled to an award attorney’s fees and costs as prevailing party on of attorney’s fees under §936. See, e.g., Puckett v.

1932 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Cornelson, 1995 OK CIV APP 72, 897 P.2d 1154. David F. Duvall, K. Ellis Ritchie, K. ELLIS In that case, however, the underlying claim RITCHIE, P.C., Pryor, Oklahoma, for Defen- was a purely equitable claim to pierce the cor- dant/Appellant/Counter-Appellee. porate veil and hold the shareholder liable for JOHN F. FISCHER, JUDGE: the labor and services judgment rendered against the corporation. 1995 OK CIV APP 72, ¶1 Rosemary Sue Mitchell appeals from an ¶11, 897 P.2d at 1157. Because the underlying order awarding attorney fees to appellees and claim to pierce the corporate veil was predomi- cross-appellants Robert N. Goss, Jr., Barbara A. nantly equitable, the Court of Civil Appeals Goss, Michael D. Johnston, Kay M. Johnston held prevailing party attorney’s fees could not and James S. Beck, Trustee of The Beck Family be recovered absent evidence of bad faith or Trust Dated The 19th Day of August, 1986 (col- other vexatious conduct. Id. lectively, Plaintiffs). Cross-appellants challenge the amount of attorney fees awarded. We ¶10 In the present case, however, Maxxum affirm the award of attorney fees but reverse asserted the equitable remedy of unjust enrich- that portion of the order setting the amount of ment to recover for unpaid labor and services the fees and remand for further proceedings to rendered. Because the underlying nature of the determine the proper amount of attorney fees action was one to recover damages arising to which the plaintiffs are entitled. directly from the provision of labor or services, BACKGROUND §936 authorized an award of prevailing party attorney’s fees to Bank, having prevailed on ¶2 This appeal arises from litigation concern- Maxxum’s labor and services claim. ing access to a swimming dock. In 1985, the owners of five adjacent lake-front lots in Buf- ¶11 The trial court committed no legal error falo Shores Unit II, a residential development in granting attorney’s fees to Bank under §936, on Grand Lake O’ the Cherokees, agreed to and Maxxum raises no issue concerning the build a swim dock in the cove fronting the amount of the award. The order of the trial development. The owners signed an agree- court is consequently AFFIRMED. ment providing for equal allocation of the costs MITCHELL, P.J., and BUETTNER, J., concur. of construction, maintenance and insurance as well as equal ownership of the dock. Because 2011 OK CIV APP 74 the Restrictive Covenants of the development ROBERT N. GOSS, JR. and BARBARA A. prohibited private docks, the owners sought GOSS, husband and wife; MICHAEL D. and obtained a variance to build the dock. The JOHNSTON and KAY M. JOHNSTON, owners also obtained a required permit from the Grand River Dam Authority (GRDA), husband and wife; and JAMES S. BECK, owner of Grand Lake, necessary to install the Trustee of The Beck Family Trust Dated The private dock. The dock is anchored to the lake 19th Day of August, 1986, Plaintiffs/ bed, and connected by a 70-foot ramp and two Appellees/Counter-Appellants, v. cables to the shoreline owned by the GRDA in ROSEMARY SUE MITCHELL, Defendant/ front of lot 27. The property of the other signa- Appellant/Counter-Appellee. tories to the agreement is located on either side No. 106,928. March 30, 2011 of lot 27. Plaintiffs and Mitchell derive their ownership from one of the five original signa- APPEAL FROM THE DISTRICT COURT OF tories to the agreement. DELAWARE COUNTY, OKLAHOMA ¶3 Mitchell purchased lot 27 in 1996. The HONORABLE J. DWAYNE STEIDLEY, sellers’ disclosure statement provided to Mitch- TRIAL JUDGE ell in conjunction with her purchase states that AFFIRMED IN PART, REVERSED IN PART the swim dock is a feature of the property AND REMANDED FOR FURTHER “shared in common with adjoining landown- PROCEEDINGS ers,” and that it is “jointly maintained by adjoining property owners.” Nonetheless, Jillian M. Fuqua, Todd E. Kolczun, LOGAN & Mitchell has personally paid for all of the per- LOWRY, LLP, Grove, Oklahoma, for Plaintiffs/ mit fees, insurance and maintenance required Appellees/Counter-Appellants. for the dock since her purchase.

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1933 ¶4 After Mitchell’s purchase of lot 27, a dis- Procedures Act (NMTPA).1 The district court pute developed regarding use and ownership granted Plaintiffs’ motion on the basis of the of the swim dock. Plaintiffs filed suit to enjoin NMTPA. Mitchell argues that the NMTPA does Mitchell from interfering with their use of the not apply because Plaintiffs did not file a quiet dock and their individual one-fifth ownership title action but rather sought injunctive relief, of the dock. Ultimately, the district court grant- and because the dock is personal property not ed Plaintiffs’ motion for summary judgment subject to the NMPTA.2 We do not address and enjoined Mitchell from interfering with these issues because we find the award of Plaintiffs’ appropriate use of the dock. That attorney fees is specifically authorized by a dif- order was not appealed and is now final. Plain- ferent statute. tiffs subsequently filed a motion for attorney fees. The order granting that motion is the sub- ¶9 The Supreme Court addressed the burden ject of this appeal both as to Plaintiffs’ entitle- of the party seeking an award of attorney fees ment to fees and as to the amount set by the in Curry v. Streater, 2009 OK 5, 212 P.3d 550: district court. In her application for attorney fees, Curry STANDARD OF REVIEW sought an award of fees pursuant to title 43 of the Oklahoma Statutes without stating a ¶5 Because Oklahoma follows the American specific section under which she claimed Rule, a prevailing party is not entitled to an fees. Oklahoma follows the American Rule attorney fee award unless specifically autho- for attorney fees, i.e., a party must bear the rized by contract, statute or some particular costs for its legal representation, attorney circumstance of the case. See City Nat’l Bank & fees will not be awarded absent a specific Trust Co. v. Owens, 1977 OK 86, 565 P.2d 4. This statutory or contractual provision, and rule is “firmly established.” Barnes v. Oklahoma exceptions are narrowly defined. White- Farm Bur. Mut. Ins. Co., 2000 OK 55, ¶46, 11 P.3d horse v. Johnson, 2007 OK 11, ¶12, 156 P.3d 162, 179. The issue of entitlement to an attorney fee is purely a legal question that this Court 41, 47. The party seeking attorney fees as a reviews de novo, without deference to the trial prevailing party must show a specific stat- court’s determination. Finnell v. Jebco Seismic, utory provision applies. See GRP of Tex., 2003 OK 35, ¶7, 67 P.3d 339, 342. Inc. v. Eateries, Inc., 2001 OK 53, ¶11, 27 P.3d 95, 99. Curry has failed to cite a particular ¶6 An attorney fee award must be reason- statutory authority which would authorize able. Id. at ¶8, 67 P.3d at 342. See also State ex rel. an award of attorney fees to her. Burk v. City of Oklahoma City, 1979 OK 115, ¶¶21-22, 598 P.2d 659, 661. “The amount to be In Curry, the Court found that not only had awarded as a fee for the services of a legal prac- Curry failed to cite any specific statute, much titioner is a matter left to the discretion of the less one that would authorize an award of trial court and will not be disturbed absent an attorney fees, but also that no such statutory abuse of discretion. Discretion is abused when authority existed that would support that a trial judge makes a clearly erroneous conclu- award. sion and judgment, against reason and evi- We note subsection 60.2(C)(1) of the [Pro- dence.” Finnell , 2006 OK 35 at ¶8, 67 P.3d at 342 tection From Domestic Abuse] Act allows (footnotes omitted). the trial court discretion to impose attorney ANALYSIS fees. However, Curry did not cite this section in support of an award of attorney ¶7 Mitchell appeals the order of the district fees. . . . Because we reverse the trial court’s court granting Plaintiffs’ motion for attorney grant of a protective order, this provision fees. Plaintiffs have filed a counter-appeal chal- does not allow for an attorney fee award. lenging the amount of fees awarded. Because Curry failed to provide a statutory I. The Mitchell Appeal basis for an attorney fee award and because we reverse the trial court issuance of the ¶8 Plaintiffs’ motion asserted several statu- protective order, we reverse the award of tory grounds for an award of attorney fees in attorney fees. this case, but principally relied on 12 O.S.2001 §1141.5 of the Nonjudicial Marketable Title Curry at ¶¶19-20, 212 P.3d at 557.

1934 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 ¶10 Here we have a different problem. Plain- nants create an interest in real property. As tiffs have cited a specific statute, and although explained by the Supreme Court: that statute does not authorize the fee award, [W]e are not unmindful of the legal right of another statute does. We have found no case owners of adjoining properties to bind discussing a movant’s obligation to support an themselves by enforceable contract, attorney fee motion with statutory authority in restraining the use of their property for an which the facts are similar to the facts in this unlimited period of time, wherein each case or the issue we must resolve is directly separate owner grants to the other owners addressed. Although Curry clearly holds that a right in his property in the nature of an there can be no fee award in such circumstanc- easement and which shall run with the es absent statutory authority, we are not will- land and be binding upon the several prop- ing to read Curry so broadly as to penalize a erty owners as well as all future owners, party statutorily entitled to attorney fees for who succeed to title with actual or con- incorrectly describing that authority, particu- structive notice of such contract or agree- larly when the facts of this case are materially ment and its terms. different from those on which Curry was decided. O’Neil v. Vose, 1944 OK 26, ¶14, 145 P.2d 411, 414. The Restrictive Covenants in this case spe- ¶11 Further, a broad interpretation of Curry cifically provide that they create an interest would be inconsistent with general principles that “runs with the land,” and that the cove- of appellate review. “Every trial judge’s deci- nants are binding on the property owners, as sion comes to a court of review clothed with a well as their successors and assigns. presumption of correctness. If supported by [C]ovenants restricting the use of property law and evidence, the nisi prius judgment will are generally held to be covenants running be affirmed even if it was based on an incorrect with the land, . . . such covenants are bind- theory and neither party tendered below an ing upon the successors in interest to the appropriate analysis of the applicable law.” parties, although there was no privity of Akins v. Missouri Pac. RR. Co., 1998 OK 102, ¶35, interest between such successors and the 977 P.2d 1040, 1054. Here, the trial court’s original parties. The portion of the restrict- award of fees was not based on an incorrect ed agreement would be as binding upon theory. Plaintiffs correctly argued that there subsequent owners as on the original par- was statutory authority for their request for ties to the agreement. attorney fees, but did not point the district court to the correct statute. They did so at their Id. at ¶29, 145 P.2d at 417. Finally, a restrictive peril. Nonetheless, we may affirm the decision covenant is to be interpreted to effect the intent of the district court if the result reached was of the parties. Id. at ¶0, 145 P.2d at 412 (Sylla- correct. Jacobs Ranch, L.L.C. v. Smith, 2006 OK bus 2). 34, ¶58, 148 P.3d 842, 857. ¶13 In part because the development provided boat slips for the use of all property ¶12 The application of that principle is war- owners, paragraph 27 of the Restrictive Cove- ranted in this case because the foundational nants prohibited owners of lots in the develop- rulings have been made. All that remains is ment from “constructing or attaching boat application of the correct statutory authority. In docks, fishing docks, swimming docks, or any granting Plaintiffs’ motion for attorney fees, floating structures on the lake adjacent to their the district court correctly found that Plaintiffs’ lots.” Nonetheless, paragraph 20 of the Restric- interest in the dock was derived from the tive Covenants authorizes the development’s Restrictive Covenants of the development and Architectural Committee to grant variances to that the swim dock agreement amended the the Restrictive Covenants. As the district court covenants. A restrictive covenant is created by found, five of the original property owners in contract. “It has been said that a restriction the development obtained a variance to build arising from a restrictive covenant is not an one swim dock. This variance was conditioned estate in land, as is a legal easement, but is on the owners entering into an agreement for purely a creature of equity arising out of con- the joint construction, maintenance and owner- tract.” Van Meter v. Manion, 1934 OK 615, ¶10, ship of the swim dock. That agreement is in 38 P.2d 557, 559. Nonetheless, restrictive cove- writing, it is signed by all five of the original

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1935 owners and it is approved by the Architectural of the real estate development which are Committee of the development. On approval specified by the covenants or restrictions. by the Architectural Committee, the agreement In any action to enforce any restriction or became part of the Restrictive Covenants of the covenant pursuant to the provisions of this development. “Several contracts relating to the section, the prevailing party shall be enti- same matters, between the same parties, and tled to recover reasonable attorney’s fees to made as parts of substantially one transaction, be fixed by the court, which shall be taxed are to be taken together.” 15 O.S.2001 §158. as costs in the action. ¶14 On rehearing, Mitchell argues that these 60 O.S.2001 §856. Therefore, section 856 pro- two documents were not made between the vides specific authorization for the award of same parties or as part of the same transaction. attorney fees in this case. The deed of dedication containing the Restric- tive Covenants was made approximately three ¶16 Mitchell argues that this was not an years prior to agreement to build the boat action to enforce the Restrictive Covenants but dock. Nonetheless, as we have noted, the an injunction action to enforce a private agree- Restrictive Covenants contemplate the vari- ment. We do not find that this distinction, to ance at issue in this case. Further, the agree- the extent that it exists, precludes reliance on ment states that the parties have been granted section 856 as authority for the attorney fee a variance by the Architectural Committee. The award in this case. Pursuant to section 856, any agreement is signed by a majority of the mem- person owning property in this development bers of the Architectural Committee, including could bring an action to enjoin any deviation one of the parties to the original deed of dedi- from a variance authorized by Restrictive Cov- cation. There is no separate document evidenc- enant 20 and the variance eventually granted ing the variance, and it appears that the agree- to the original five owners. For example, if ment is the only written evidence of the vari- Mitchell sought to expand the existing dock ance granted by the Architectural Committee. beyond the 16 x 30-foot dock for which the Finally, Restrictive Covenant 20 provides that if variance was granted, section 856 would autho- a variance is granted no violation of the Restric- rize any property owner in the development, including an outvoted owner of the swim tive Covenants “shall be deemed to have 3 occurred with respect to the matter for which dock, to seek an injunction preventing that the variance was granted.” We construe this expansion. The variance was granted to five language to mean that no violation of the property owners and their joint ownership was a condition precedent to the grant of that vari- Restrictive Covenants occurs because the 4 Restrictive Covenants have been amended by ance. What Mitchell refers to as a private the variance and the variance has become a agreement documents that variance as well as part of the Restrictive Covenants. Therefore, the agreement of the five original parties grant- we are not persuaded that the subject matter of ed the variance. It is merely semantical to argue the Restrictive Covenants and the agreement that an injunction preventing one of the five by which the original five owners were granted from claiming sole ownership enforces the a variance to build this swim dock are suffi- agreement but not the variance. Even if we ciently different to preclude the application of view the agreement as a separate instrument, 15 O.S.2001 §158. the substance of Plaintiffs’ action was to conform Mitchell’s actions to the terms of the ¶15 In this action, Plaintiffs are the prevailing variance. parties in their action seeking to enforce the swim dock agreement that was part of the ¶17 Therefore, we will not read section 856 as development’s Restrictive Covenants. The Real narrowly as Mitchell suggests. We find persua- Estate Development Act, 60 O.S.2001 §§851- sive Cebuhar v. Bovaird, 2003 OK CIV APP 19, 857, provides statutory support for the attor- ¶13, 67 P.3d 348, 351 affirming an award of ney fee award in this case. attorney fees to the party successfully vacating restrictive covenants and rejecting the argu- Any person owning property in a real ment that section 856 applied only to actions to estate development shall be entitled to “enforce” restrictive covenants. Similarly, in bring action against any other person own- Sanditen Investments, Ltd. v. Tomlinson, 1968 OK ing property in such development to 166, 447 P.2d 738, the Supreme Court affirmed enforce any of the restrictions or covenants an injunction prohibiting the construction of a

1936 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 parking lot because it violated a restrictive cov- attorney fee award. We find this argument has enant permitting only single family dwellings merit. “[T]he trial court should set forth with of no less than 1,200 square feet: specificity the facts, and computation to support his award.” Id. at ¶22, 598 P.2d at 663. The [W]here the only use of the subject lots spe- Supreme Court reiterated this requirement in cifically “permitted” is for single family Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, dwellings of a certain minimum ground ¶¶11-15, 171 P.3d 890, 896 (holding that the floor living area, we think that the lots’ use failure to follow the Burk directives in award- for a purpose, as different from single fam- ing an attorney fee constitutes an abuse of dis- ily dwellings, as a parking lot for employ- cretion). It may be that the amount of attorney ees at a nearby shopping center, is defi- fees awarded by the district court is the appro- nitely prohibited. priate amount. If so, that cannot be determined Id. at ¶9, 447 P.2d at 740. The Court rejected the from this record. Consequently, we reverse the defendant’s argument that a parking lot was order of the district court awarding Plaintiffs not prohibited because it was not a single fam- $19,973.91 in attorney fees. ily dwelling of less than 1,200 square feet, CONCLUSION affirming the principle that restrictive covenants “run with the land” and do not solely ¶21 Section 856 of the Real Estate Develop- apply to the use of the land. ment Act provides statutory authority for the ¶18 Section 856 is part of the Real Estate award of attorney fees in this case. Accordingly, Development Act, 60 O.S.2001 §§851 -857. Sec- we affirm the district court’s order granting tion 851(1)(b) defines a real estate development Plaintiffs’ Motion for Attorney Fees on the as one involving “[m]utual, common or recip- issue of entitlement. We affirm the award of rocal interests in or restrictions upon, all or costs to Plaintiffs as to amount, because Mitch- portions of such separately owned lots, parcels ell has not challenged the amount of costs or areas, or both.” One of the restrictions in this awarded by the district court. We reverse the development is that five property owners, not attorney fees award as to amount and remand one, may construct and maintain a swim dock. this case for further proceedings to determine Section 856 authorizes attorney fees in an the appropriate amount of attorney fees to action to enforce “any restriction.” The injunc- which Plaintiffs are entitled, consistent with tion obtained in this case did just that; it the pronouncements in Burk and in this enforced the joint ownership of the swim dock, Opinion. a condition to the variance granted by the ¶22 AFFIRMED IN PART, REVERSED IN Architectural Committee and authorized by PART AND REMANDED FOR FURTHER Restrictive Covenant 20. PROCEEDINGS. II. Plaintiffs’ Appeal BARNES, P.J., and WISEMAN, J., concur. ¶19 In their motion for attorney fees, Plain- 1. Section 1141.5 provides: tiffs sought $38,192.50 in attorney fees and A. If a requestor prepares a notice pursuant to Section 3 of $1,730.43 in costs. Plaintiffs provided evidence this act, and: 1. The respondent receives the notice and fails to respond, in support of their motion, including the opin- or ion of an expert witness that the time spent and 2. The respondent requests clarification or additional information and then subsequently refuses to execute and deliver a hourly rate charged were reasonable. Plaintiffs curative instrument or to take the corrective action identified in also addressed each of the twelve factors estab- the notice, or lished by Burk , 1979 OK 115, 598 P.2d 659, as 3. The respondent refuses to claim the notice, or 4. The respondent receives the notice and refuses to take the relevant to determining what amount of attor- action requested in the notice, then in the event that the request- ney fees is appropriate in a particular case. or files an action to quiet title to the subject parcel pursuant to Section 1141 of Title 12 of the Oklahoma Statutes, and the civil After a hearing on Plaintiffs’ motion, the dis- action results in a judgment for the plaintiff which could have trict court awarded $19,973.91 as a “reasonable been accomplished through the execution and delivery of a curative instrument or the taking of corrective action identified in a attorney fee in this matter” and $1,192.70 in notice, the plaintiff in the quiet title action, in addition to any 5 costs. other requested relief, shall be entitled to recover damages equal to the actual expenses incurred by the plaintiff in identifying the ¶20 Plaintiffs argue that the district court’s relevant instrument, preparing the notice to the respondent pursuant to Section 3 of this act, and the expenses of litigation order does not provide on the record the com- directly related to obtaining judgment quieting title in the plain- putation required to determine the basis for the tiff with respect to the interest or apparent interest forming the

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1937 basis of the action against the respondent, including costs and reasonable attorney fees. B. If a defendant in the quiet title action who either failed to respond to a notice pursuant to Section 4 of this act or who Biscone & Biscone refused to execute and deliver a curative instrument or take corrective action identified in the notice prevails in the quiet title Attorneys action, the defendant in the quiet title action, in addition to any other requested relief, shall be entitled to recover damages equal to the actual expenses incurred by the defendant in responding to the notice from the requestor pursuant to Section 4 of this act, and the expenses of litigation directly related to obtaining judgment quieting title in the defendant or asserting an affirmative defense with respect to the interest or apparent interest forming the basis of the action against the defendant, including costs and reasonable attorney fees. 2. Mitchell also argues that the dock agreement was not binding on her. This issue was resolved by the district court’s order granting Plain- tiffs’ motion for summary judgment and cannot be raised in this proceeding. Panama Processes, S.A. v. Cities Serv. Co., 1990 OK 66, n.27, 796 P.2d 276, 283 n.27 (holding that “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action”). 3. As Mitchell notes, the agreement among the original five owners provides that the vote of three members would determine any dis- We will gladly accept your referrals pute. for oklahoma workers’ compensation 4. Although any one of those parties could sell their individual and social security disability cases interest, there is no indication in this record that has occurred. . 5. Neither Plaintiffs’ petition in error nor brief in chief challenges the amount of costs awarded. Association/ referral fees paid 1-800-426-4563 405-232-6490 105 N. Hudson, Suite 100 Hightower Building Oklahoma City, OK 73102

1938 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 You are not alone.

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Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1939 Disposition of Cases Other Than by Published Opinion

COURT OF CRIMINAL APPEALS From this judgment and sentence Anthony Wednesday, June 29, 2011 Frank Monaco has perfected his appeal. The Petition for Certiorari is GRANTED, and this RE-2010-88 — Stacy Sloan Whiteley entered case is REMANDED to the district court FOR pleas of guilty to Driving Under the Influence, APOINTMENT OF NEW COUNSEL ON Count I, and Transporting a Loaded Firearm, MONACO’S MOTION TO WITHDRAW HIS Count II, in Custer County District Court Case GUILTY PLEA. The district court is directed to No. CM-2008-118. Whiteley’s sentence was determine the adequacy of Monaco’s guilty deferred for two years. Subsequently, White- plea consistent with the principles and discus- ley’s deferred sentence was accelerated and he sion contained herein. Opinion by: Smith, J.; was sentenced to six months incarceration. A. Johnson, P.J., Concur; Lewis, V.P.J., Concur From this order of acceleration, Whiteley has in Results; Lumpkin, J., Concur in Part/Dissent perfected this appeal. The District Court’s in Part; C. Johnson, J., Concur. order accelerating Stacy Sloan Whiteley’s deferred sentence is AFFIRMED. Opinion by: Thursday, July 21, 2011 Lewis, V.P.J.; A. Johnson, P.J., concurs; Lump- F-2010-2 — Clinton Riley Potts, Appellant, kin, J., concurs; C. Johnson, J., concurs; Smith, was tried by jury for the crime of First Degree J., concurs. Murder, in Case No. CF-2007-1058, in the Dis- Wednesday, July 13, 2011 trict Court of Muskogee County. The jury returned a verdict of guilty and recommended F-2010-82 — Appellant, Enrique Pacheco, was as punishment life imprisonment without pos- tried by jury and convicted of First Degree Mal- sibility of parole. The trial court sentenced ice Murder, in violation of 21 O.S.2001, § 701.7(A), accordingly. From this judgment and sentence in the District Court of Muskogee County, case Clinton Riley Potts has perfected his appeal. number CF-2007-742, before the Honorable REVERSED AND REMANDED FOR A NEW Norman Thygesen, Associate District Judge. TRIAL. Opinion by: C. Johnson, J.; A. Johnson, The jury sentenced Pacheco to life imprison- P.J., Concurs; Lewis, V.P.J., Concurs; Lumpkin, ment without the possibility of parole. Judge J., Concurs; Smith, J., Concurs. Thygesen sentenced Pacheco in accordance with the jury verdict on January 13, 2010. From F-2010-798 — Michael Lee Albright, Appel- the Judgment and Sentence Pacheco has per- lant, was tried by jury for the crimes of Posses- fected his appeal to this court. AFFIRMED. sion of a Stolen Vehicle (Count 1), and Felony Opinion by: Lewis, V.P.J.; A. Johnson, P.J., Con- Eluding a Police Officer (Count 2), both After curs in Results; Lumpkin, J., Concurs; C. John- Former Conviction of Two or More Felonies, in son, J., Concurs; Smith, J., Concurs. Case No. CF-2009-760 in the District Court of Tulsa County. The jury returned a verdict of Wednesday, July 20, 2011 guilty and recommended as punishment seven C-2010-260 — Anthony Frank Monaco, Peti- years imprisonment on each count, a $600 fine, tioner, entered a blind plea of guilty to ten and a $150.00 victim’s compensation assess- counts of Child Sexual Abuse in Case No. CF- ment. The trial court sentenced accordingly 2009-575, in the District Court of Canadian and ordered the sentences to be served concur- County. The trial court sentenced Monaco to rently. From this judgment and sentence twenty-five (25) years imprisonment on each of Michael Lee Albright has perfected his appeal. Counts 1 through 9, to run concurrently, and The Judgment and Sentence of the District ten (10) years imprisonment on Count 10, to be Court is AFFIRMED. Opinion by: A. Johnson, served consecutively to the other counts. P.J.; Lewis, V.P.J., concurs; Lumpkin, J., concurs; Monaco’s filed a motion to withdraw his plea C. Johnson, J., concurs; Smith, J., concurs. in a hearing held on March 5, 2010. At the con- F-2010-27 — Eric William McClendon, Appel- clusion of the hearing, trial court denied the lant, was tried by jury for the crimes of First motion. The trial court sentenced accordingly.

1940 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Degree Burglary (Count 1) and Attempted Rape trict court for a new hearing with conflict-free (Count 2) in Case No. CF-2008-2452, in the Dis- counsel. New counsel was appointed and a trict Court of Oklahoma County. The jury second hearing was held on Petitioner’s motion returned a verdict of guilty and recommended to withdraw. The trial court denied the applica- as punishment twenty years imprisonment on tion and this appeal followed. The Petition for each count. The trial court sentenced accordingly Writ of Certiorari is DENIED, and the Judg- and ordered the sentences to be served concur- ment and Sentence of the District Court is rently. From this judgment and sentence Eric AFFIRMED. Opinion by: C. Johnson, J.; William McClendon has perfected his appeal. A. Johnson, P.J., concurs; Lewis, V.P.J., concurs; The Judgment and Sentence of the District Lumpkin, J., concurs; Smith, J., concurs. Court is AFFIRMED. Opinion by: A. Johnson, Tuesday, July 26, 2011 P.J.; Lewis, V.P.J., concurs in results; Lumpkin, J., concurs; C. Johnson, J., concurs; Smith, J., RE-2010-187 — Torrez Ceasar entered a plea concurs. of guilty to Possession of a Controlled Danger- ous Substance with Intent to Distribute, Cocaine C-2010-1033 — Shawn Leroy Harger, Petition- Base, Count I, and Possession of a Controlled er, entered a blind plea of no contest to the crime Dangerous Substance, Marijuana, Count II, in of Child Abuse in Case No. CF-2009-28 in the Oklahoma County District Court Case No. CF- District Court of Garfield County, with the 98-5104. Ceasar was sentenced to ten years understanding that the State would recommend incarceration on Count I, and one year incar- its previously negotiated offer of twenty years ceration on Count II, all suspended, with the imprisonment. The Honorable Ronald G. Frank- sentences ordered to run concurrently. Subse- lin accepted Harger’s plea and, following a pre- quently, Ceasar’s suspended sentence was sentence investigation and hearing, sentenced revoked in full. From this order of revocation, him to twenty years imprisonment. Harger filed Ceasar has perfected this appeal. The District an application to withdraw guilty plea, and Court’s order revoking Torrez Ceasar’s sus- after the prescribed hearing, the court denied pended sentence is AFFIRMED. Opinion by C. Harger’s application. Shawn Leroy Harger Johnson, J.; A. Johnson, P.J., concurs; Lewis, appeals the District Court’s order and asks this V.P.J., concurs; Lumpkin, J., concurs; Smith, J., Court to grant certiorari and remand this matter concurs. to the District Court for a complete evidentiary hearing on the merits of his motion with the Wednesday, July 27, 2011 assistance of effective, conflict-free counsel. The F-2010-935 — Appellant Tracy Lynn French Petition for Writ of Certiorari is GRANTED. The was tried by jury and found guilty of two Judgment and Sentence of the District Court is counts of Second Degree Burglary, After Former REVERSED and the matter REMANDED for a Conviction of Two or More Felony Convictions, new hearing on Harger’s Application to within the District Court of Carter County, Case No. draw plea with separate, conflict-free counsel. CF-2010-192. The jury recommended as punish- Opinion by: A. Johnson, P.J.; Lewis, V.P.J., con- ment imprisonment for twelve (12) years in curs; Lumpkin, J., concurs in results; C. Johnson, Count I and fifteen (15) years in Count II. The J., concurs; Smith, J., concurs. trial court sentenced accordingly, ordering the Monday, July 25, 2011 sentences be served consecutively. It is from this judgment and sentence that Appellant appeals. C-2010-779 — Leon Lee Hooks, Petitioner, AFFIRMED. Opinion by Lumpkin J.; A. John- was charged in the District Court of Muskogee son, P.J., concur; Lewis, V.P.J., concur; C. John- County, in Case No. CF-2009-463, with First son, J., concur; Smith, J., concur. Degree Rape, After Former Conviction of a Felony. Petitioner entered a negotiated plea of Friday, July 29, 2011 guilty to the crime charged. The Honorable F-2009-344 — Michael Anthony Birch, Appel- Mike Norman accepted Petitioner’s plea and lant, was tried by jury for the crimes of Lewd sentenced him to thirty years imprisonment Acts with a Child under Sixteen (Count I), and with all but the first ten years suspended. Peti- Lewd Acts with a Child Under Sixteen (Count tioner subsequently filed a motion to withdraw V) in Case No. CF-2006-5900 in the District his guilty plea. His motion was denied after a Court of Oklahoma County and in Case No. hearing. Petitioner appealed this ruling and CF-2008-4091, also in the District Court of this Court remanded the case back to the dis- Oklahoma County, for the crimes of Lewd Acts

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1941 with a Child under Sixteen (Count I), and guilty plea. It is that denial which is the subject Attempted Lewd Acts with a Child under Six- of this appeal. Accordingly, the order of the teen (Count II). The jury returned a verdict of district court denying Petitioner’s motion to guilty and recommended as punishment in withdraw plea of guilty is AFFIRMED. This Case No. CF-2006-5900, four years imprison- matter is REMANDED to the trial court with ment on Count I and six years imprisonment instructions to enter an order nunc pro tunc on Count V, and in Case No. CF-2008-4091, correcting the Judgment and Sentence to accu- four years imprisonment on Count I and one rately reflect the court’s order that Petitioner year imprisonment on Count II. The trial court pay a $50.00 fine, a $50.00 Victims Compensa- sentenced accordingly and ordered the sen- tion Assessment and a $175.00 Pre-Sentence tences in each case to be served consecutively Investigation Assessment. Opinion by: Lump- to one another and the sentences in CF-2008- kin, J.; A. Johnson, P.J., concur; Lewis V.P.J., 4091 to run consecutively with those of concur; C. Johnson, J., concur; Smith, J., concur CF-2006-5900. From this judgment and sen- in results. tence Michael Anthony Birch has perfected his appeal. The Judgment and Sentence of the S-2010-872 — State of Oklahoma v. Vysean District Court is AFFIRMED. Opinion by: A. Leondre Embry. The State of Oklahoma, Appel- Johnson, P.J.; Lewis, V.P.J., concurs; Lumpkin, lant, appeals the order of the Honorable Kurt J., concurs in results; C. Johnson, J., concurs; Glassco, District Judge, sustaining Appellees Smith, J., concurs. motion to quash the information for insufficient evidence in the District Court of Tulsa F-2010-954 — David Allen Lacy, Appellant, County, Case Number CF-2010-1233. The order was tried by jury for the crimes of two counts of the District Court of Tulsa County is of Obtaining Cash or Merchandise by False REVERSED. Opinion by: Lewis, V.P.J.; A. John- Pretenses, After Former Conviction of a Felony, son, P.J., concurs; Lumpkin, J., concurs; C. in Case No. CF-2009-222, in the District Court Johnson, J., concurs; Smith, J., recuses. of Stephens County. The jury returned a verdict of guilty and recommended as punish- Monday, August 1, 2011 ment nine years imprisonment on Count I, and C-2010-340 — Joshua Dee Taylor, Petitioner, one year imprisonment and a $5,000.00 fine on entered a negotiated plea of guilty to the crimes Count II. The trial court sentenced accordingly of Assault with a Dangerous Weapon (Count 1) ordering the sentences be served concurrently. and Misdemeanor Domestic Abuse, Assault From this judgment and sentence David Allen and Battery in the Presence of a Minor (Count Lacy has perfected his appeal. AFFIRMED. 2) in Case No. CF-2009-338 in the District Court Opinion by: C. Johnson, J.; A. Johnson, P.J., con- of Custer County. The Honorable Donna L. curs; Lewis, V.P.J., concurs; Lumpkin, J., con- Dirickson accepted Taylor’s plea and, under curs; Smith, J., concurs. the terms of the plea agreement, sentenced him C-2010-897 — Petitioner, Sheila Annette Dol- to a seven-year suspended sentence on Count 1 lar, was charged by Information in the District and a one-year suspended sentence on Count Court of Oklahoma County, Case No. CF-2008- 2. Taylor filed a timely motion to withdraw 4533, with Forgery in the Second Degree, After plea and after the prescribed hearing, the Former Conviction of Two or More Felonies. motion was denied by the District Court. Tay- On February 8, 2010, Petitioner entered a blind lor appeals the District Court’s order and asks plea of guilty before the Honorable Ray C. this Court to grant certiorari and allow him to Elliott, District Judge. Petitioner’s plea was withdraw his plea or favorably modify his sen- accepted and the matter was set for sentencing tence. The Petition for Writ of Certiorari is April 2, 2010, pending receipt of the pre- DENIED. The Judgment and Sentence of the sentence investigation report. On August 27, District Court is AFFIRMED. The case is 2010, the trial court sentenced Petitioner to fif- remanded to the District Court of Custer Coun- teen (15) years imprisonment, a $50.00 fine, a ty, however, for the limited purpose of correct- $50.00 Victim Compensation Assessment, and ing the Judgment and Sentence nunc pro tunc a $175.00 Pre-Sentence Investigation Assess- to properly reflect the legal descriptions and ment. On September 7, 2010, Petitioner filed statutory references of the crimes of conviction. her Application to Withdraw Plea of Guilty. At Opinion by: A. Johnson, P.J.; Lewis, V.P.J., con- a hearing held on September 10, 2010, the trial curs; Lumpkin, J., concurs in results; C. John- court denied the application to withdraw the son, J., concurs; Smith, J., concurs.

1942 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 M-2009-634 — On March 6, 2009, Appellant Felony Conviction in Case No. CF-2009-36 in the was convicted of Count 1, Injury to a Vehicle District Court of Texas County. The jury returned and Counts 2, 3, 5, 6 and 7, Assault and Battery a verdict of guilty and recommended as punish- in Tulsa County Case No. CM-2008-2641. The ment twenty-five years imprisonment and a Honorable Gordon D. McAllister, Jr., District $100,000.00 fine. The trial court sentenced accord- Judge, sentenced Cooper to pay fines of $250.00 ingly. From this judgment and sentence Verge A. each for Counts 1, 3, 5, 6 and 7 and $500.00 for Jeffery has perfected his appeal. The Judgment Count 2. From these judgments and sentences, and Sentence of the District Court is AFFIRMED. Appellant appeals. Appellant’s convictions are Opinion by: A. Johnson, P.J.; Lewis, V.P.J., con- AFFIRMED. Opinion by: Lumpkin, J.; A. John- curs; Lumpkin, J., concurs; C. Johnson, J., con- son, P.J., concur; Lewis, V.P.J., Concur; C. John- curs; Smith, J., concurs. son, J., Concur; Smith, J., Concur. COURT OF CIVIL APPEALS RE 2010-0735 — Appellant, Leslie Kenneth (Division No. 1) Copeland, was charged October 5, 2009, in Thursday, July 7, 2011 Pawnee County District Court Case No. CF- 107,405— James R. Keith, Plaintiff/Appellee, 2009-107, with Count 1 – Domestic Assault and vs. Bo Reid d/b/a Gold Spot Flooring, Defen- Battery by Strangulation, Count 2 – Resisting dant/Appellant. Appeal from the District an Officer, and Count 3 – Malicious Injury to Court of Garfield County, Oklahoma. Honor- Property. Appellant pled guilty December 11, able Norman L. Grey, Trial Judge. Appeal of a 2009, as charged. The Honorable Jefferson D. judgment entered in a small claims lawsuit fol- Sellers, District Judge, sentenced Appellant to lowing denial of a Motion for Reconsideration three years suspended and a $1,000.00 fine on and/or for New Trial. HELD: The trial court’s Count 1 and a $100.00 fine on Counts 2 and 3. judgment is in accord with applicable sections The State filed a motion to revoke Appellant’s of the Uniform Commercial Code, (UCC), 12A suspended sentence on March 13, 2010. An O.S.Supp.2006 § 1-101, et seq. Appellee was amended motion to revoke was filed on May entitled to a reasonable amount of time to 18, 2010. Following a revocation hearing June inspect carpet installed in a house he owned 11, 2010, Judge Sellers, finding Appellant vio- for investment purposes before making an lated the terms and conditions of probation, acceptance or a rejection. 12A O.S.2001 § 2-602. revoked Appellant’s suspended sentence in It is undisputed the wrong carpet was installed. full. Appellant appeals from the revocation of The seller’s remedies provided in 12A O.S.2001 his suspended sentence. The revocation of § 2-703 only apply to a wrongful rejection or Appellant’s suspended sentence is AFFIRMED. revocation of acceptance and, under the cir- Opinion by Lumpkin, J.; A. Johnson, P.J., con- cumstances, did not apply. The right to cure cur; Lewis, V.P.J., concur; C. Johnson, J., concur; under 12A O.S.2001 § 2-508 must be offered Smith, J., concur. unconditionally and Appellant made no such Wednesday, August 3, 2011 unconditional offer to cure. The trial court did not abuse its discretion in denying Appellant’s F-2010-631 — David Michael Jenkins, Appel- Motion for Reconsideration and/or for New lant, was tried by jury for the crime of First Trial and finding Appellee was entitled to a Degree Murder, in Case No. CF-2008-6269, in refund of the partial payment made on the con- the District Court of Tulsa County. The jury tract, costs, and attorney fees. The judgment is returned a verdict of guilty and recommended AFFIRMED. Opinion by Hetherington, P.J.; as punishment life imprisonment. The trial Bell, C.J., and Hansen, J., concur. court sentenced accordingly. From this judgment and sentence David Michael Jenkins has 107,483 — Summa Engineering, Inc., Plain- perfected his appeal. AFFIRMED. Opinion by: tiff/Appellant, vs. Crawley Petroleum Corpora- C. Johnson, J.; A. Johnson, P.J., Concurs; Lewis, tion, and Mack Energy Company, Defendants/ V.P.J., Concurs; Lumpkin, J., Concurs; Smith, J., Appellees. Appeal from the District Court of Concurs. Oklahoma County, Oklahoma. Honorable Vicki L. Robertson, Trial Judge. In this breach of con- Thursday, August 4, 2011 tract and negligence action, Plaintiff alleges the F-2010-62 — Verge A. Jeffery, Appellant, was trial court erred by sustaining Defendants’ tried by jury for the crime of Trafficking in an demurrer to the evidence at the close of Plain- Illegal Drug (marijuana), After One Previous tiff’s case and entering judgment in Defen-

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1943 dants’ favor. We disagree. Defendants’ response the 1970 Ford Mustang and the 1952 pickup is to Plaintiff’s proposal, which the parties agree marital property, (2) in its division of personal required the drilling of a vertical well, added property in the marital estate, and (3) that the new, material terms and thereby rejected Plain- characterization of alimony in lieu of support tiff’s proposal. The parties’ subsequent writ- is, in fact, support alimony, not an award of ings, including their final agreement, do not property. Husband also contends the court require a vertical well, and there is no evidence abused its discretion in awarding physical cus- of a renewal of the proposal. As a matter of law, tody of the parties’ two sons to Wife. This the evidence fails to establish a prima facie case Court cannot say the custody decision is con- of breach of contract based on Defendants’ fail- trary to the clear weight of the evidence or that ure to drill a vertical well. We reach the same it is contrary to law. AFFIRMED IN PART; conclusion as to Plaintiff’s breach of contract REVERSED IN PART AND REMANDED with claim based on the carried to casing point elec- directions to vacate that part of the decree tion. Under the evidence and testimony pre- ordering the protective order and mutual sented to the trial court, there are no restric- orders of restraint remain in full force and tions, requirements or other duties required of effect for the statutory limit of three years. Defendants as it relates to the casing point AFFIRMED IN PART, REVERSED IN PART determination. Finally, assuming a duty of care AND REMANDED WITH DIRECTIONS. was owed under the lease or letter agreement, Opinion by Hansen, J.; Hetherington, P.J., and there is no evidence that Defendants’s decision Bell, C.J., concur. to drill a horizontal well was made in bad faith 108,572 — In Re the Marriage of: Jamie D. or that the drilling was performed negligently, Shimanek (formerly Jamie Donn Green), Peti- unreasonably or without due diligence. The tioner/Appellee, vs. Michael Shannon Green, judgment sustaining Defendants’ demurrer to Respondent/Appellant. Appeal from the Dis- the evidence or “motion for directed verdict” is trict Court of Kingfisher County, Oklahoma. affirmed. AFFIRMED. Opinion by Hethering- Honorable Susie M. Pritchett, Trial Judge. ton, P.J.; Bell, C.J., and Hansen, J., concur. Appellant (Father) seeks review of the trial 108,307 — In Re the Marriage of: Melissa court’s order granting custody of the parties’ Johnson, Petitioner/Appellee vs. Scott John- eighteen-year-old son (Son) to Appellee (Moth- son, Respondent/Appellant. Appeal from the er) and awarding child support for Son until he District Court of Comanche County, Oklaho- graduated from high school. At issue is wheth- ma. Honorable Keith Byron Aycock, Trial Judge. er Son was attending high school as a full-time In August 1995, Appellee (Wife) filed a petition student during the six-month period between for separate maintenance against Appellant completing his coursework at the end of the (Husband). In January 2009, she filed an fall semester of 2009 and graduating at the end “amended petition for divorce.” On May 21, of the spring semester of 2010. We hold he was 2009, Judge Aycock entered a temporary not a full-time student and modify the trial restraining order against Husband. Also in court’s order accordingly. AFFIRMED AS May 2009, while a divorce matter was pending, MODIFIED. Opinion by Hansen, J.; Hethering- Judge Harris issued an emergency protective ton, P.J., and Bell, C.J., concur. order against Husband. Judge Aycock con- 108,808 — Jane Coldwell, M.S., Plaintiff/ ducted the divorce trial in October 2009. The Appellant, vs. State of Oklahoma, ex rel., Pro- Decree of Divorce filed February 4, 2010, deter- tective Health Services of The State Depart- mined child custody, property division and ment of Health, Defendant/Appellee. Appeal support alimony. Judge Aycock also deter- from the District Court of Oklahoma County, mined the protective order and mutual orders Oklahoma. Honorable Bryan C. Dixon, Trial of restraint remain in full force and effect for Judge. Jane Coldwell (Coldwell) appeals the the statutory limit of three years. Husband dismissal with prejudice of her Petition for appeals and contends Judge Aycock had no Declaratory Judgment based upon her failure authority to order the protective order, issued to exhaust her administrative remedies. HELD: by Judge Harris, to remain in effect for three The statutory provision cited by Coldwell, 75 years. We find that in so ordering, Judge O.S.2001 §306(D), in support of review is inap- Aycock abused his discretion contrary to 22 plicable to the pending quasi-adjudicative, O.S. Supp. 2008 §60.2A(1). We also find the individual proceedings. Coldwell is required court did not abuse its discretion in finding (1) to exhaust her available administrative reme-

1944 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 dies prior to seeking court review. The order of Defendant/Appellant. Appeal from the Dis- the trial court granting the Motion to Dismiss trict Court of Tulsa County, Oklahoma. Honor- by State of Oklahoma, ex rel. Protective Ser- able Deborah C. Shallcross, Judge. Appellee, as vices of the State Department of Health for Trustee of the Brenneman Family Trust, brought failure to exhaust her administrative remedies this action against Appellant to recover monies and dismissing her Petition for Declaratory from a margin/option account titled in the Judgment is AFFIRMED. Opinion by Hether- name of Austin Russell Brenneman, deceased. ington, P.J.; Bell, C.J., and Hansen, J., concur. Appellee claimed he was entitled to the assets in Brenneman’s individual account without Thursday, July 21, 2011 having to probate a pour-over will because 108,268 — Certain Underwriters at Lloyds Appellee was Trustee of the Trust. The court London, a Foreign Insurer, Plaintiff/Appellee, awarded judgment to Appellee and also grant- vs. B3, Inc. and NRS Consulting Engineers, ed attorney fees and costs to Appellee. On Defendants/Appellants, and The Mill Creek appeal, Appellant contends the trial court erred Public Works Authority; John D. Sikes and because Appellee did not obtain court docu- Tamara J. Sikes, Husband and Wife; Connie mentation appointing him legal representative Sikes, Individually and as Personal Represen- of Brenneman’s estate, and as a securities inter- tative of The Estate of Johnny F. Sikes; William mediary for the deceased, it was obligated by Brunk and Kathryn Brunk, Husband and Wife; law to only honor a request to transfer or Phil Converse; Ava Converse; Paula Rush; The redeem the financial assets by the legal repre- Janice Earlene Family Revocable Trust; Shan- sentative of the estate. We conclude Appellee is non Shirley and Reginald Robbins, Husband not legally authorized to direct the transfer/ and Wife, Defendants. Appeal from the District redemption of this estate asset or to bring the Court of Johnston County, Oklahoma. Honor- instant action for recovery of the asset. The trial able John H. Scaggs, Trial Judge. Appeal of the court erred in granting judgment to Appellee entry of an order sustaining a Motion for Sum- as a matter of law, and also erred in granting mary Judgment in favor of Plaintiff/Appellee attorney fees and costs to Appellee. The trial Certain Underwriters at Lloyds London court’s orders are reversed and this matter is (Lloyds) in Lloyd’s suit for a declaratory judg- remanded with instructions to grant defen- ment. The trial court found the Total Pollution dant’s motion for summary judgment. Appel- exclusion in an insurance policy issued by lee’s request for appeal related fees is denied. Lloyds applied to bar coverage for the liability REVERSED AND REMANDED. Opinion by and damages claimed in an underlying lawsuit Bell, C.J.; Hetherington, P.J., and Hansen, J., against Appellants B3, Inc. (B3) and NRS Con- concur. sulting Engineers (NRS) and Defendant The 108,960 — Charles West, Personal Represen- Mill Creek Public Works Authority. HELD: The tative of the Estate of Angela Schreiner, question whether an insurance policy is ambig- Deceased, Plaintiff/Appellee, vs. Board of uous is one of law. The Lloyd’s policy is not County Commissioners of Pawnee County, ambiguous on its face, and it excludes cover- Defendant/Appellant. Appeal from the Dis- age for the risks stated in the underlying law- trict Court of Pawnee County, Oklahoma. Hon- suit for damages allegedly caused by releases orable Matthew D. Henry, Trial Judge. Appel- or discharges from wastewater/sewage lagoons lant (County) seeks review of the trial court’s in the course of the work performed by B3 order granting the motion for new trial of according to NRS’s plans and specifications. Appellee (West) in West’s action against Coun- Having determined there is no coverage under ty for Schreiner’s wrongful death. The trial the policy, we need not address whether NRS court found the monetary value the jury placed was a third-party beneficiary of a third party on the decedent’s life was unconscionable. contract and entitled to indemnification under New trial may be granted for inadequate dam- B3’s policy. The trial court’s order finding the ages only if they appear to have been given pollution exclusion applies to exclude cover- under the influence of passion or prejudice. age and Lloyd’s was entitled to judgment as a The record shows the sole item of damage on matter of law is AFFIRMED. Opinion by Heth- which the plaintiff submitted evidence of valu- erington, P.J.; Bell, C.J., and Hansen, J., concur. ation was the burial and funeral cost. We 108,691 — Lawrence A.G. Johnson, Trustee, reverse because the trial court applied the Plaintiff/Appellee, vs. Thinkorswim, Inc., wrong standard in granting the motion, and

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1945 the jury’s verdict is supported by the evidence. court’s orders filed July 14, 2010 and December REVERSED AND REMANDED. Opinion by 29, 2010 are AFFIRMED IN PART AND Hansen, J.; Hetherington, P.J., and Bell, C.J., REVERSED IN PART UNDER OKLA. SUP.CT. concur. R. 1.202(d). Opinion by Hetherington, P.J.; Bell, C.J., and Hansen, J., concur. 109,189 — Deborah Rhoades, Petitioner, vs. Homeland Stores, Inc. (own risk), and The Thursday, August 4, 2011 Workers’ Compensation Court, Respondents. 107,561— Shanon McKee and Chance McKee, Proceeding to Review an Order of The Work- Plaintiffs/Appellants, vs. Oklahoma New ers’ Compensation Court. Honorable Robert Homes-Direct, L.L.C., Defendant/Appellee. Lake Grove, Judge. Petitioner (Claimant) Appeal from the District Court of Rogers appeals the trial court’s order finding she did County, Oklahoma. Honorable Robert E. Price, not sustain an accidental personal injury aris- Judge. Appellants (McKee) brought this small ing out of and in the course of her employment claims action against Appellee (New Homes) with Respondent (Employer). If Claimant was to recover McKees’ down-payment on a resi- walking to the designated smoking area to dential construction contract. The trial court smoke, then her injury was not causally related awarded New Homes a judgment for $2,500.00, to any employment duty. Whether Claimant’s the amount listed as liquidated damages in the injury arose out of and in the course of her sales contract. McKees contend the court erred employment was a question of fact for the trial when it declined to hold New Homes’ failure court. The trial court inferred from the undis- to build the home in a timely manner was a puted facts that Claimant was in furtherance of breach of contract. The written contract is a personal mission, smoking. We find there is devoid of any provision stating that time is of competent evidence that Claimant did not sus- the essence for New Homes’ performance or tain an accidental personal injury arising out of that the parties agreed to a start and comple- and in the course of her employment. SUS- tion date for the construction of the home. TAINED. Opinion by Hansen, J.; Hetherington, McKees have failed to show New Homes indi- P.J., and Bell, C.J., concur. cated any unwillingness or inability to begin its Tuesday, July 26, 2011 performance under the contract. The contract is clear and unambiguous that the parties 109,262— Patricia Robertson, Individually intended for the $2,500.00 to serve as liquidat- and as Personal Representative of the Survi- ed damages in the event of McKees’ breach. vors of Charles Robertson, deceased, Plaintiff/ When McKees purchased a different home and Appellant, vs. Lone Star Transportation, LLC, demanded the return of the $2,500.00, they and Ron Wilson, Defendants/Appellees, and breached the contract and forfeited the down Trail King Industries, Carlisle Companies, Inc., payment as liquidated damages. The trial Red River Manufacturing, Inc., and Texarkana court’s judgment is AFFIRMED. Opinion by Insurance Company, Defendants. Appeal from Bell, C.J.; Hetherington, P.J., and Hansen, J., the District Court of Tulsa County, Oklahoma. concur. Honorable Dana L. Kuehn, Trial Judge. This accelerated appeal is brought from a trial court 107,899— In the Matter of the Marriage of: order granting summary judgment in favor of Rae Ann Woodard, Petitioner/Appellant, vs. Defendant Lone Star Transportation, LLC Jason Lee Woodard, Respondent/Appellee. (Lone Star), on Robertson’s wrongful death Appeal from the District Court of Oklahoma petition which was certified for immediate County, Oklahoma. Honorable Donald Dea- appeal by a separate order. We conclude the son, Trial Judge. Appeal by Appellant Rae Ann statements of undisputed fact and conclusions Woodard of an order reducing the monthly of law of the trial court’s summary judgment child support obligation of Appellee Jason Lee order adequately explain the decision on the Woodard. HELD: The trial court’s order is not choice of law issue and affirm that determina- supported by the evidence adduced at hearing tion. However, the trial court erred in deter- and it is reversed. The case is remanded for mining Lone Star had immunity because the recalculation of Appellee’s child support in applicable Colorado statute caps Lone Star’s light of his testimony he earned, at minimum, damage exposure at $15,000 and does not grant $1,950 per month, rather than the $1,516.66 tort immunity, unlike the repealed version gross monthly income employed by the order, upon which the trial court relied. The trial the evidence demonstrating his control of

1946 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 roughly $1,000 of additional gross monthly from an order of a three-judge panel of the income, and his lack of evidence regarding Workers’ Compensation Court, Hon. Michael J. claimed business expenses. REVERSED AND Harkey, Trial Judge, affirming an order of the REMANDED. Opinion by Hetherington, P.J.; trial court awarding Claimant disfigurement Bell, C.J., and Hansen, J., concur. for surgical scars. Claimant underwent surgery 108,601— American Farmers & Ranchers to repair a distal right biceps tendon rupture. Mutual Insurance Company, Plaintiff/Appel- To repair the injury, the surgeon made two inci- lant, vs. Shelter Mutual Insurance Company, sions - one directly over Claimant’s elbow and Defendant/Appellee. Appeal from the District one that began and ended below Claimant’s Court of Oklahoma County, Oklahoma. Hon- elbow - resulting in two separate scars. The orable Patricia G. Parrish, Trial Judge. Plain- trial court awarded Claimant permanent par- tiff/Appellant, American Farmers & Ranchers tial disability benefits for the injury to the right Mutual Insurance Company (AFR), seeks arm and also awarded him benefits for disfig- review of the trial court’s judgment in favor of urement to his forearm. The three-judge panel Defendant/Appellee, Shelter Mutual Insurance affirmed the order of the trial court. The award Company (Shelter), based on its determination for disfigurement benefits was for the scar their policies contained mutually repugnant caused to Claimant’s forearm during the sur- “other insurance” clauses and therefore their gery to repair his arm. The disfigurement coverages should be prorated. We hold the Okla- award for the scar on the forearm or “hand” homa Compulsory Insurance Law (OCIL), 47 was a separate and independent item of com- O.S.2001 §§7-600 to 7-612, does not constrain an pensation that was not included in the perma- insurer from declaring its coverage as excess nent partial disability award for Claimant’s when there is other insurance which covers its “arm” injury. We thus find the disfigurement insured’s lability with respect to a claim also award is allowed pursuant to the Workers’ covered by its policy. A dispute between insurers Compensation Act. SUSTAINED. Opinion from as to which provides primary coverage is a mat- the Court of Civil Appeals, Division II, by ter of contract. Accordingly, we affirm the trial Wiseman, J.; Barnes, P.J., concurs, and Fischer, court’s judgment.AFFIRMED. Opinion by Han- V.C.J., dissents. sen, J.; Hetherington, P.J., and Bell, C.J., concur. Thursday, July 7, 2011 109,468— Timothy Slawson and George Kel- logg, Personal Representatives of the Estate of 108,479— In the Matter of the Estate of H. George Wesley Kellogg, deceased, Plaintiffs/ Dale Schimpf, Deceased. Kenneth D. Schimpf Appellants, vs. Board of County Commission- and Tom Murry, Appellants, v. Carolee G. ers of Logan County, a Governmental Entity, Schimpf, Appellee. Appeal from Order of the Defendant/Appellee. Appeal from the District District Court of Washington County, Hon. Court of Logan County, Oklahoma. Honorable John M. Gerkin, Trial Judge, admitting a will to Phillip C. Corley, Trial Judge. Review of an probate. The son and stepson of Decedent order following hearing granting motion to (Children) claim the will admitted to probate dismiss in favor of County on Kellogg’s tort was revoked by subsequent wills. The wife of Petition. Accelerated appeal under Okla. Sup. Decedent asked the trial court to probate Dece- Ct. R. 1.36 affirms trial court finding tort claims dent’s will dated September 11, 1985 (1985 notice against a political subdivision pursuant will). Children objected to the petition and con- to Title 51 O.S. Supp. 2006 § 156 (D) of the Gov- tested the 1985 will asserting that Decedent ernmental Tort Claims Act was filed with had revoked this will by executing a subse- county clerk out of time. Statutory scheme is quent will in 1991 (1991 will). The trial court plain, clear and unambiguous in its meaning denied Children’s objection and admitted the and upon de novo review, case filing was time 1985 will to probate. We find the evidence barred. AFFIRMED. Opinion by Hetherington, without contradiction establishes revocation of P.J.; Bell, C.J., and Hansen, J., concur. the 1985 will by the terms of the 1991 will. The whereabouts of the original 1991 will are (Division No. 2) unknown. Absent any evidence showing that Wedneday, July 6, 2011 the statutory requirements of 84 O.S.2001 §106 108,670 — City of Lawton, Own Risk, Peti- have been met, we conclude the 1985 will has tioner, v. Michael Gene Meador and The Work- not been revived. The trial courts order admit- ers’ Compensation Court, Respondents. Appeal ting the 1985 will to probate is reversed, and

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1947 this case is remanded with directions to find trial court did not abuse its discretion because Decedent died intestate. REVERSED AND Appellant failed to support her application for REMANDED WITH DIRECTIONS. Opinion attorney fees with proper documentation. from the court of Civil Appeals, Division II, by Other than a self-serving assertion that the fee Wiseman, J.; Fischer, V.C.J., and Barnes, P.J., is reasonable, there is no evidence in the record concur. to support Appellant’s request for $10,000 in attorney fees. Appellant also failed to include 108,019 — City of Lawton, Oklahoma, a in the record on appeal any evidence that she is municipal corporation, Plaintiff/Appellant, v. entitled to an award of attorney fees based on American Federation of State, County and a judicial balancing of the equities. Based on Municipal Employees, AFL-CIO, Local 3894, our affirmance of the trial court’s denial of Defendant/Appellee, and State of Oklahoma attorney fees, we also deny Appellant’s request ex rel. Public Employees Relations Board, for appeal-related attorney fees. AFFIRMED. Responding Agency. Appeal from the District Opinion from the Court of Civil Appeals, Divi- Court of Comanche County, Hon. Allen McCall, sion II, by Wiseman, J.; Fischer, V.C.J., and Trial Judge. Plaintiff/Appellant (the City) seeks Barnes, P.J., concur. review of the legal conclusion of the Public Employees Relations Board (the Board) that Tuesday, July 12, 2011 the City’s retirement system is a mandatory 107,877 — Leon Grace and Bessie Grace, subject of bargaining with Defendant/Appel- Plaintiffs/Appellees, v. Wal-Mart Stores East, lee (the Union). The City does not argue that LP, Defendant/Appellant. Appeal from an the Board reached an incorrect result. There- order of the District Court of Kay County, Hon. fore, the issue presented on appeal is abstract D.W. Boyd, Trial Judge, entering judgment and hypothetical rather than connected to a upon jury verdict on behalf of Bessie Grace. lively case or controversy in which we can dis- Plaintiffs filed suit against Wal-Mart for negli- pense present relief. When the arguments gence in failing to safely maintain its premises raised “tend to show only that [the] judgment after Bessie was injured as a result of a slip and may have been based upon wrong reasons or fall on a hanger in the ladies’ apparel depart- an incorrect theory, without establishing that ment. Wal-Mart first asserts the trial court [the lower court] reached an incorrect result or erred by denying “Wal-Mart’s demurrer to the determination, this Court may consider them evidence based on the open and obvious doc- as concerning only abstract or academic ques- trine.” Conflicting evidence was presented on tions . . . .” State of Oklahoma v. Landess, 1955 OK the open and obvious versus hidden nature of 148, ¶ 0, 293 P.2d 574, 574-575 (Syllabus by the the hanger. Because reasonable minds could Court). “It is a long-established rule that this differ as to whether the hanger was an open court will not consume its time by deciding and obvious danger, it was within the province ‘abstract propositions of law’ or moot issues.” of the jury to decide this issue based on the State of Oklahoma ex rel. Oklahoma Firefighters evidence before it. Wal-Mart next argued that Pension and Retirement System v. City of Spencer, even if the hanger were not an open and obvi- 2009 OK 73, ¶ 4, 237 P.3d 125, 129 (footnote ous condition, the trial court still erred in sub- omitted). We dismiss this appeal as moot pur- mitting the case to the jury because there was suant to Oklahoma Supreme Court Rule no evidence Wal-Mart knew or should have 1.6(c)(1). APPEAL DISMISSED AS MOOT. known that the hanger was on the floor or that Opinion from Court of Civil Appeals, Division Wal-Mart had created a dangerous condition. II, by Barnes, P.J.; Fischer, V.C.J., and Wiseman, We reject this argument because Bessie intro- J., concur. duced evidence on which the jury could rea- Friday, July 8, 2011 sonably conclude that Wal-Mart knew or should have known of the risk of the hanger 108,094 — John David Mullican, Petitioner/ being on the floor. We further reject Wal-Mart’s Appellee, v. Sarah Lee Mullican, Respondent/ argument the trial court should have granted Appellant. Appeal from an order of the District its motion for mistrial because Bessie “improp- Court of Oklahoma County, Hon. Barry L. erly suggested to the jury that Wal-Mart had Hafar, Trial Judge, denying Appellant’s appli- agreed to pay her medical bills.” Wal-Mart cation for attorney fees. The issue on appeal is failed to show Bessie’s testimony should have whether the trial court abused its discretion been excluded as falling squarely within the when it denied her application. We find the parameters of 12 O.S.2001 § 2409. Furthermore,

1948 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 the trial court admonished the jury to disre- den of proof. The decision of the trial court is gard portions of this testimony. We conclude therefore reversed and the case is remanded for the trial court neither erred nor abused its dis- further proceedings consistent with this Opin- cretion in its rulings on Wal-Mart’s motions for ion. REVERSED AND REMANDED FOR FUR- directed verdict, judgment notwithstanding THER PROCEEDINGS. Opinion from the the verdict, mistrial, or new trial. AFFIRMED. Court of Civil Appeals, Division II, by Wise- Opinion from the Court of Civil Appeals, Divi- man, J.; Fischer, V.C.J., and Barnes, P.J., concur. sion II, by Wiseman, J.; Fischer, V.C.J., and 108,225 — In re the Marriage of: Stacia Leann Barnes, P.J., concur. Paul, Petitioner/Appellee, v. Troy Eugene Paul, Wednesday, July 13, 2011 Respondent/Appellant. Appeal from the Dis- trict Court of Garfield County, Hon. Paul K. 107,340 — Linda Sue Edelen, Administrator Woodward, Trial Judge, awarding primary of the Estate of Dustin H. Edelen, Plaintiff/ custody of the parties’ minor children to Moth- Appellant, vs. Board of Commissioners of er, dividing the marital estate, and awarding Bryan County and Bill Sturch, Sheriff of Bryan alimony to Mother. As to the division of the County, Defendants/Appellees. Appeal from marital estate, we find there was conflicting the District Court of Bryan County, Hon. Mark testimony and evidence regarding Father’s net R. Campbell, Trial Judge. Administrator appeals worth and the value of Paul Transportation. the dismissal of the petition as to the Board of Father’s arguments do not convince us that the County Commissioners of Bryan County and trial court erred in dividing the parties’ marital Bryan County Sheriff Bill Sturch. The petition property. Father contends the trial court abused sought damages for injuries Edelen received its discretion by failing to award custody based while incarcerated in the Bryan County jail as a upon TLP’s expressed preference. We do not result of the defendants’ alleged negligence in find reversible error in the trial court’s decision maintaining the jail, and their alleged delay not to follow TLP’s preference when doing so and denial of medical care for Edelen’s injuries. would result in dividing custody of the chil- We find the Oklahoma Governmental Tort dren between the parents, a factor which is Claims Act provides the defendants immunity relevant in determining the children’s best with respect to the negligence claim, and there- interests. We further find the amount of ali- fore affirm the dismissal of that theory of mony awarded to Mother is not excessive as recovery. However, we find allegations in the she demonstrated a need for alimony during petition sufficient to state a claim with respect the post-matrimonial economic readjustment to the defendants’ alleged delay and denial of period. AFFIRMED. Opinion from the Court of medical care, and therefore reverse that portion Civil Appeals, Division II, by Wiseman, J.; of the order appealed. AFFIRMED IN PART, Fischer, V.C.J., and Barnes, P.J., concur. REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from 107,350 — The State of Oklahoma ex rel. Court of Civil Appeals, Division II by Fischer, Craig Ladd, District Attorney, Plaintiff/Appel- V.C.J.; Barnes, J., and Wiseman, J., concur. lee, vs. $457.02 in U.S. currency, Defendant, and Embry Jay Loftis, Appellant. Appeal from 108,303 — Hilda Harris, as Administratrix of the District Court of Carter County, Hon. the Estate of Wilson Harris, Deceased, Plain- Thomas S. Walker, Trial Judge. Appellant Loftis tiff/Appellant, v. Elois Miles, Defendant/ appeals the denial of his motion for new trial in Appellee. Appeal from an order of the District a forfeiture proceeding. Loftis was arrested Court of Choctaw County, Hon. James R. and charged with possession of a controlled Wolfe, Trial Judge, finding that certain funds dangerous substance. The district attorney filed transferred by Wilson Harris (Harris) to his a petition and notice of seizure and forfeiture stepdaughter, Elois Miles (Defendant) were with respect to $457.02 that was in Loftis’ pos- proper inter vivos gifts made without fraud or session at the time of arrest. Lofits filed an undue influence. The issue on appeal is wheth- objection to the petition denying that the er the trial court erred in failing to determine $457.02 was subject to forfeiture. The matter that the burden of proof shifted from Plaintiff was set for trial. When Loftis failed to appear at to Defendant due to a confidential relationship trial, the district attorney requested and was between Harris and Defendant. Having re- granted a judgment of forfeiture by default. We viewed the record and applicable law, we find find that 63 O.S. Supp. 2010 § 2-506 required the trial court did not properly allocate the bur- the district attorney to present sufficient evi-

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1949 dence to establish that the money was subject Hon. Bob Lake Grove, Trial Judge. Claimant to forfeiture despite Loftis’ failure to appear. appeals the trial court’s “Order to Vacate” and Because judgment of forfeiture was entered by its “Order Denying Compensability,” both filed default, there is no evidence in the record on November 30, 2010 (collectively, the Novem- showing that forfeiture was authorized by stat- ber 30th Orders). The effect of the November ute. Therefore, it was error to deny Loftis’ 30th Orders was to replace the trial court’s motion for new trial. The order of the district “Order Denying Temporary Total Disability court is reversed and the case is remanded for Benefits,” filed on November 2, 2010, (the First further proceedings. REVERSED AND RE- Order) with the November 30, 2010 “Order MANDED FOR FURTHER PROCEEDINGS. Denying Compensability” (the Second Order). Opinion from Court of Civil Appeals, Division Claimant contends that because the Order to II by Fischer, V.C.J.; Barnes, P.J., and Wiseman, Vacate and the Second Order were not entered J., concur. and sent to the parties within twenty days of the First Order, that the First Order became Thursday, July 14, 2011 final and was improperly vacated by the trial 108,513 — The State of Oklahoma, Plaintiff/ court. Employer contends, on the other hand, Appellant, v. Michael Lynn Tate, Defendant, that the Second Order merely resolved a facial- and Adrion Bradford, Jr. (Bondsman), Real ly apparent clerical error in the First Order and Party in Interest/Appellee. Appeal from an constituted a proper nunc pro tunc correction Order of the District Court of Oklahoma Coun- pursuant to Rule 57 of the Workers’ Compen- ty, Hon. Tammy Bass-LeSure, Trial Judge. sation Court Rules. Upon our review of the Appellant (State) appeals from the trial court’s facts and applicable law, we agree with Employ- “Order Sustaining Bondsman’s Motion for er and, therefore, we sustain the November Remitter,” in which the trial court, construing 30th Orders. SUSTAINED. Opinion from Court 59 O.S. Supp. 2008 § 1332(D), granted Real of Civil Appeals, Division II, by Barnes, P.J.; Party in Interest/Appellee’s (Bondsman) Fischer, V.C.J., and Wiseman, J., concur. Motion for Remitter; ordered the monies depos- Tuesday, July 19, 2011 ited with the Court Clerk returned to Bonds- man; vacated its previous order and judgment 107,898 — Wendy Stanley (now Groshong), of forfeiture; and exonerated the bond. State’s Plaintiff/Appellant, vs. Jeffrey Shane Stanley, primary argument on appeal is that because Defendant/Appellee. Appeal from order of the Bondsman failed to make his deposit on the District Court of Oklahoma County, Hon. Don- ninety-first day following receipt of the trial ald Deason, Trial Judge. Groshong appeals the court’s order and judgment of forfeiture, as award of attorney fees to her former husband. required by § 1332(D)(1), the trial court erred The parties were divorced in Texas and their by ordering the forfeiture proceeds returned to decree of divorce was entered in that State. Bondsman. We find, however, that a bonds- Groshong was granted the primary right of man’s failure to make a timely deposit pursu- custody of the parties’ minor children and her ant to § 1332(D)(1) does not, by itself, render residence was determined to be the children’s him/her ineligible to receive a return of that primary residence. Subsequently, Groshong deposit. Instead, as detailed in the Opinion, moved from Texas to Oklahoma. She filed a § 1332(D)(3) and subsequent provisions promotion seeking to modify previously deter- vide the remedy for late deposits. Based on our mined visitation and child support. Jeffrey review of the record and applicable law, we Stanley filed a motion to dismiss, arguing the affirm the trial court’s Order. AFFIRMED. Oklahoma court lacked in personam jurisdiction Opinion from Court of Civil Appeals, Division over him. The district court agreed and dis- II, by Barnes, P.J.; Fischer, V.C.J., and Wiseman, missed the case. Groshong did not appeal that J., concur. order and it is now final. Stanley is not entitled to an award of attorney fees in this case absent Friday, July 15, 2011 statutory authorization. Neither statute relied 109,028 — Dorlene Pryor, Claimant/Peti- on by Stanley provides that authorization. tioner, v. Great Plains Regional Medical Center REVERSED. Opinion from Court of Civil and The Workers’ Compensation Court, Appeals, Division II by Fischer, V.C.J.; Barnes, Employer/Respondent. Proceeding to review P.J., and Wiseman, J., concur. an order of The Workers’ Compensation Court,

1950 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Wednesday, July 20, 2011 ED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division II, by Wise- 108,657 — QC Squared, Inc., Plaintiff/Appel- man, J.; Fischer, V.C.J., and Barnes, P.J., concur. lant, v. WFG Investments, Inc., formerly Wil- liams Financial Group, Defendant/Appellee, Wednesday, July 27, 2011 and Frank McGuire III, Michael Leipart, and Century Advisors, LLC, Defendants. Appeal 108,097 — Gotham Insurance Company a/s/o from Order of the District Court of Oklahoma Tritex Real Estate Advisors, Inc., Plaintiff/ County, Hon. Barbara G. Swinton, Trial Judge, Appellee, v. Emerson Motor Company a/k/a granting summary judgment in favor of Defen- Emerson Electric Co., Defendant/Appellant. dant, WFG Investments, Inc. Plaintiff entered Appeal from the District Court of Tulsa Coun- into a series of contracts to finish out construc- ty, Hon. Rebecca B. Nightingale, Trial Judge. tion of Quick Clinic facilities. When Plaintiff Defendant appeals from the trial court’s order was not paid for all of the construction work it denying its motion for judgment notwithstand- completed, Plaintiff sued those involved in ing the verdict or, in the alternative, for a new raising funds for the Quick Clinic facilities for trial and from the trial court’s order denying its fraud, constructive fraud, and breach of con- motion for attorney fees. Emerson challenges tract. The trial court granted the motion for the sufficiency of the evidence to support the summary judgment filed by Defendant. We jury’s verdict and also asserts it is a “prevailing reverse the trial court’s grant of summary judg- party” entitled to an award of attorney fees. ment on Plaintiff’s constructive fraud and Based upon our review of the record on appeal actual fraud claims because disputed issues of and pertinent law, we find the record contains material fact remain. We affirm the trial court’s competent evidence to support the jury’s ver- grant of summary judgment on the breach of dict and that Emerson is not a “prevailing contract claim because Plaintiff failed to raise party” as a matter of law. AFFIRMED. Opinion the issue in its motion to reconsider. AFFIRMED from Court of Civil Appeals, Division II, by IN PART, REVERSED IN PART, AND RE- Barnes, P.J.; Fischer, V.C.J., and Wiseman, J., MANDED FOR FURTHER PROCEEDINGS. concur. Opinion from the Court of Civil Appeals, Divi- Thursday, July 28, 2011 sion II, by Wiseman, J.; Fischer, V.C.J., and Barnes, P.J. concur. 108,314 — Mike Anderson, Plaintiff/Appel- lant, v. Access Medical Centers; Derrick Free- Thursday, July 21, 2011 man, D.O.; Lenard “Lenny” Phillips, D.O.; and 108,803 (cons. with 108,811) — Oklahoma Bruce Cornett, D.O., Defendants/Appellees. Department of Mental Health & Substance Appeal from an order of the District Court of Abuse and Compsource Oklahoma, Petition- Oklahoma County, Hon. Twyla Mason Gray, ers/Counter-Respondents, v. David R. Pierce Trial Judge, denying a motion to vacate. The and The Workers’ Compensation Court, issues raised in this appeal include whether Respondent/Counter-Petitioner. Proceeding to Attorneys have standing to appeal indepen- review an order of a three-judge panel of the dent of Plaintiff, whether they had standing to Workers’ Compensation Court, Hon. Cherri file a motion to vacate without Plaintiff’s con- Farrar, Trial Judge, awarding death benefits to sent, and whether grounds exist pursuant to 12 Claimant. The three-judge panel’s order, how- O.S.2001 §§ 1031 and 1038 to vacate the trial ever, affirms an order of the trial court that had court’s order dismissing the lawsuit without previously been vacated. It is unclear from the prejudice. We find Attorneys fail to meet the record whether the three-judge panel actually first requirement of standing, that of a legally intended to affirm the previously vacated order protected interest, and therefore lack standing or the subsequent order the trial court issued to to bring this appeal. Because Attorneys lack replace the vacated order. We therefore vacate standing, this Court has no jurisdiction to con- the order of the three-judge panel and remand sider the merits of this appeal. Based on the for the panel to provide this Court with an foregoing, we will not address whether Attor- order that either indicates why the panel neys had standing in the trial court to file a reviewed the vacated order or corrects the date motion to vacate without Plaintiff’s consent, of the order reviewed to reflect that the panel nor will we consider whether grounds exist to reviewed the subsequent order that replaced vacate the trial court’s order dismissing the the vacated order. VACATED AND REMAND- case without prejudice. DISMISSED. Opinion

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1951 from the Court of Civil Appeals, Division II, by tion 1031(4) authorized the vacation of the Wiseman, J.; Fischer, V.C.J., and Barnes, P.J., Northwest judgment on grounds of intrinsic concur. fraud. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Wednesday, August 2, 2011 Appeals Division II by Fischer, V.C.J.; Barnes, 109,149 — Jaymie M. Thomsen, Mother and P.J. and Wiseman, J., concur. Next Friend of H.R.T., a minor, and G.R.T. a Friday, August 5, 2011 minor, Plaintiff/Appellee, vs. Eric R. Thomsen and Frank R. Thomsen, Defendants/Appel- 108,359 — Paula L. Monsey/Kershaw, Plain- lants. Appeal from Order of the District Court tiff/Appellant, vs. Save Mor Home Improve- of Oklahoma County, Hon. Barbara Swinton, ment, LLC; Oklahoma Employment Security Trial Judge. The district court granted Plain- Commission and The Board of Review of the tiff’s motion for summary judgment, removing Oklahoma Employment Security Commission, Defendants as custodians of Children’s ac- Defendants/Appellees. Appeal from Order of counts, and awarding Plaintiff attorney fees the District Court of Oklahoma County, Hon. and costs. The district court erred in granting Twyla Mason Gray Trial Judge, affirming the Plaintiff’s motion for summary judgment on denial of unemployment benefits by the grounds that Eric and Frank Thomsen violated Employment Security Commission. In this the Oklahoma Uniform Transfers to Minors appeal, the findings of the Commission are Act. See 58 O.S.2001 §§ 1201-1225. Its orders binding on this Court if supported by the evi- entering summary judgment against Defen- dence. The finding that Kershaw engaged in dants, and its other orders flowing therefrom misconduct justifying her termination is sup- are vacated. This matter is remanded with ported by the evidence. Therefore, Kershaw is instructions to enter an order reinstating Defen- disqualified from receiving unemployment dants as custodian, and successor custodian of benefits. See 40 O.S.2001 § s-406. AFFIRMED. the funds at issue for Children’s benefit in Opinion from Court of Civil Appeals, Division accordance with the OUTMA, and without II by Fischer, V.C.J.; Barnes, P.J., and Wiseman, prejudice to the rights of interested parties to J., concur. assure the accounts are administered in accordance with the OUTMA, and to make such 107,755 — James A. Dodson and George additional orders as are consistent with and Dowdey, Plaintiffs/Appellees, vs. Thomas necessary to carry this ruling into effect. Merritt and Judy B. Sikes/Merritt, Defendants/ VACATED AND REMANDED WITH IN- Appellants. Appeal from Order of the District STRUCTIONS. Opinion from Court of Civil Court of Atoka County, Hon. D. Clay Mowdy Appeals, Division II by Fischer, V.C.J.; Barnes, Trial Judge, granting James A. Dodson and P.J., and Wiseman, J., concur. George Dowdey an easement by necessity over a portion of the Merritts’ property. Dodson and Thursday, August 4, 2011 Dowdey did not proceed pursuant to 27 O.S.2001 107,676 — Northwest Roofing Supply, Inc., § 6 to establish a private way of necessity. They an Oklahoma corporation, Plaintiff/Appellee, relied on the common law to establish an ease- vs. Elegance in Wood, LLC; Elton Rhoades, Jr. ment by implication. That remedy requires and Malissa M. Rhoades, Husband and Wife; proof of common ownership. Thomas v. Mor- and Kevin Jones, Defendants/Appellants. gan, 1925 OK 494, ¶ 14, 240 P. 735, 736-37 (find- Appeal from Order of the District Court of ing of fact that the disputed property is a way Oklahoma County, Hon. Bryan C. Dixon, Trial of necessity without a finding that the land Judge. The judgment in this case was obtained owned by plaintiffs and that owned by defen- to enforce a materialmen’s lien. However, pre- dants was at some time owned by the same lien notice was not provided to the Rhoadeses person is insufficient to sustain an easement as required by law. Within two years of the by implication). Dodson and Dowdey’s failure judgment, the Rhoadeses filed a petition to to prove the existence of a prior common vacate that judgment pursuant to 12 O.S.2001 § owner of both their property and the Merritts’ 1031(4), arguing that the judgment was obtained property is fatal to their claim for a common by fraud. Northwest did not comply with the law easement by implication. REVERSED IN notice requirements of 42 O.S.2001 § 142.1. PART. Opinion from Court of Civil Appeals, Therefore, the record does not show that North- Division II by Fischer, V.C.J.; Barnes, P.J., and west was entitled to foreclose its lien, and sec- Wiseman, J., concur.

1952 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 (Division No. 3) man, P.J., and Barnes, J., (sitting by designa- Thursday, June 23, 2011 tion), concur. 107,359 — Jacqueline Michelle Ghazal, Plain- Monday, June 27, 2011 tiff/Appellant, v. Mazin Kamel Ghazal, Defen- 109,171 — City of Stillwater, Oklahoma, deant/Appellee. Appeal from the District Plaintiff/Appellee, v. International Association Court of Osage County, Hon. M. John Kane, of Firefighters, Local 2095, Defendant/Appel- Trial Judge. Jacqueline Michelle Ghazal (Wife) lant. Appeal from an order of the District Court appeals the trial court’s August 24, 2009, decree of Payne County, Hon. Stephen Kistler, Trial of divorce entered following the death of her Judge. The trial court plaintiff, International husband, Mazin Kamel Ghazal (Husband). Association of Firefighters, Local 2095 (IAFL), Based upon our review of the facts and appli- appeals a judgment which granted summary cable law, we affirm the trial court’s determina- judgment to the Defendant, The City of Still- tion that the parties’ divorce action did not water, Oklahoma (City). The City is an Okla- abate upon Husband’s death. However, we homa municipal corporation. The IAFL is a find the trial court was without authority to labor union representing firefighters employed subsequently file the August 24, 2009, final by the City. The City and IAFL have a collective decree of divorce. The decree is therefore vacat- bargaining agreement (CBA). The City decided ed. AFFIRMED IN PART AND VACATED IN to discontinue some ambulance services. Fire- PART. Opinion from Court of Civil Appeals, fighters were used for the services. The City’s Division IV, by Goodman, P.J.; Rapp, J., and decision prompted a grievance on their behalf Barnes, J. (sitting by designation), concur. that was filed by IAFL. Firefighters claimed that, under the CBA, the City is required to Friday, June 24, 2011 arbitrate its decision to discontinue the ambu- 108,978 — Terrance Britt, Plaintiff/Appel- lance services. Stillwater claims that it did not lant, v. Promise Redeemer, L.L.C. d/b/a agree to arbitration regarding this type of deci- Edwards Redeemer Nursing Center, Defen- sion and that it is a management prerogative dant/Appellee. Appeal from Order of the Dis- under the CBA. This Court holds that the trict Court of Oklahoma County, Hon. Noma D. City’s decision to terminate some ambulance Gurich, Trial Judge, granting summary judg- services is a management prerogative and not ment in favor of Defendant in an action based on subject to arbitration under the CBA. This a nursing home’s alleged disclosure of Plaintiff’s Court further holds that the grievance proce- medical condition in violation of Oklahoma’s dures contained in the CBA do not include Nursing Home Care Act, 63 O.S.2001 & Supp. provision to arbitrate the decision to terminate 2010 §§ 1-1900.1, et seq. It is not disputed that some ambulance services. Disputes referenced in the grievance procedure as being subject to Plaintiff filed the claim more than two, but less arbitration concern only terms and conditions than three, years after his cause of action accrued. of employment as those are provided in the He argues his action is governed by the three- CBA. The decision to terminate some ambu- year limitations period set forth in 12 O.S. lance services is not a term or condition of Supp. 2010 § 95(A)(2) applicable to liabilities employment in general or under the provisions “created by a statute other than a forfeiture or of the CBA. Therefore, the judgment of the trial penalty.” Title 76 O.S. Supp. 2010 § 18 imposes court is affirmed. AFFIRMED. Opinion from a two-year statute of limitations for claims Court of Civil Appeals, Division IV, by Rapp, J.; against a “health care provider” for issues aris- Goodman, P.J., and Barnes, J. (sitting by desig- ing out of patient care, whether the action is nation), concur. “based in tort, breach of contract or otherwise.” Plaintiff’s complaint about a breach of his pri- Tuesday, June 28, 2011 vacy, or confidentiality, goes straight to an 107,273 — In Re The Marriage Of: Rebecca issue of “patient care.” Section 18 therefore Diane Laywell, Petitioner/Appellee, v. Ronald applies to bar Plaintiff’s claim for breach of the Alan Laywell, Respondent/Appellant. Appeal duty of confidentiality imposed by the Nursing from an order of the District Court of Tulsa Home Care Act, and the trial court’s entry of County, Hon. Kyle B. Haskins, Trial Judge, summary judgment in favor of Defendant was denying Appellant’s motion to vacate a default correct. AFFIRMED. Opinion from Court of decree of divorce. The evidence indicates Civil Appeals, Division IV, by Rapp, J.; Good- Appellant did not receive timely notice of the

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1953 event that was the genesis of the default 106,605 — In re the Marriage of Annie M. Sal- divorce decree — the filing of Appellee’s dis- lis, Petitioner/Appellee, v. Charles B. Sallis, covery requests to which Appellant did not Respondent/Appellant. Appeal from the Dis- respond. Though failure to respond can be trict Court of Oklahoma County, Hon. Allen J. used as a basis for a default judgment, the 30- Welch, Trial Judge. Respondent, Charles B. Sal- day period for responses found in 12 O.S.2001 lis, Jr. (Husband) appeals the trial court’s Decree § 3236 is subject to the particular facts of any of Divorce and Dissolution of Marriage. Hus- case, as the statute itself acknowledges. band contends the trial court erred in failing to REVERSED AND REMANDED FOR FUR- award him restitution alimony; in finding he THER PROCEEDINGS. Opinion from Court of dissipated marital assets and awarding Wife Civil Appeals, Division IV, by Rapp, J.; Good- one-half of those funds; and in awarding Wife man, P.J., and Barnes, J. (sitting by designa- a divorce on grounds of adultery. This Court tion), concur. finds no error and affirms. AFFIRMED. Opin- ion from the Court of Civil Appeals, Division Wednesday, June 29, 2011 IV, by Rapp, J.; Goodman, P.J., and Barnes, J. 108,968 — City of Midwest City, Petitioner, v. (sitting by designation), concur. Debbie Chamberlain and The Workers’ Com- Thursday, June 30, 2011 pensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The 108,968 — Patricia Bowers Edwards, Indi- Workers’ Compensation Court, Hon. Cherri vidually and as Natural Mother and Next Farrar, Trial Judge, finding Claimant sustained Friend of Robert Drew Bowers, an Incapacitat- an injury arising out of and in the course of her ed Person, Plaintiff/Appellant, v. BancFirst, a employment with Employer and awarding her National Banking Association, Defendant/ permanent disability benefits. The sole deter- Appellee, and Rex Urice, an individual; The mination for this Court is whether the workers’ Robert S. Bowers and Eloise C. Bowers Foun- compensation court’s order is supported by dation, a private foundation; John C. Duty, an competent evidence. Here, the workers’ com- individual; Michael A. Bickford, an individual; pensation court considered Claimant’s testi- and Personal Nursing Care, Inc., an Oklahoma mony and the medical evidence in finding Corporation, Defendants. Appeal from an Claimant sustained a work-related injury and order of the District Court of Oklahoma Coun- awarding permanent disability benefits. This ty, Hon. Patricia G. Parrish, Trial Judge. The Court finds there is competent evidence to sup- plaintiff, Patricia Bowers Edwards (Edwards), port the decision of the three-judge panel. SUS- Individually and as natural mother and next TAINED. Opinion from Court of Civil Appeals, friend of Robert Drew Edwards, an incapaci- Division IV, by Rapp, J.; Goodman, P.J., and tated person, appeals a Trial Court Order Barnes, J. (sitting by designation), concur. granting partial summary judgment to the defendant, BancFirst (Bank). The case now 109,212 — The City of Oklahoma City, Plain- under review involves a claim by Edwards that tiff/Appellant, v. Dora Diane Phillips, Defen- BancFirst, as trustee, negligently failed to pay dant/Appellee. Appeal from the District Court the estate taxes, under a procedure which of Oklahoma County, Hon. Geary Walke, Trial would allow a refund if BancFirst prevailed in Judge. Plaintiff, The City of Oklahoma City the Foundation litigation, but which would (City), appeals a judgment dismissing its peti- stop the accrual of interest. The trial court did tion for damages against the defendant, Dora not err by its ruling that Edwards’ claim against Diane Phillips, on the ground that the cause is Bank for the interest that accrued on unpaid barred by the Statute of Limitations. After Federal estate taxes was barred by the Statute of reviewing the appellate record and applicable Limitations. Even though she could not bring law, this Court finds City is immune from the the action until Bank of Oklahoma relinquished application of the statute of limitations in this the claim to her, the two-year time period began action. The judgment of the trial court is when Bank of Oklahoma became Trustee of the reversed and the cause remanded for further Bowers Trust. If Edwards’ position were sus- proceedings. REVERSED AND REMANDED tained then the result would be to add the period FOR FURTHER PROCEEDINGS. Opinion from of limitations applicable to Edwards to that the Court of Civil Appeals, Division IV, by applicable to Bank of Oklahoma. If one limita- Rapp, J.; Goodman, P.J., and Barnes, J. (sitting tion can be added to another without limit, it by designation), concur. would create an intolerable rule and promote a

1954 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 never ending right of action. Therefore, the judg- lant’s second proposition of error claims Appel- ment is affirmed. AFFIRMED. Opinion from lee was granted relief she did not seek at the Court of Civil Appeals, Division IV, by Rapp, J.; pretrial stage. The relief she requested was con- Goodman, P.J., and Barnes, J. (sitting by designa- sistent with that sought at pretrial and identi- tion), concur. cal to that which she sought in her answer to the original petition. We find no merit in the Wednesday, July 27, 2011 second proposition of error. The trial court’s 105,514 — First Fidelity Bank N.A., Plaintiff/ denial of First Fidelity’s motion to reconsider Appellant, vs. Vonzell Soloman, Defendant/ the granting of the default judgment to Vonzell Appellee. Appeal from the District Court of Soloman is REVERSED AND THIS CAUSE Oklahoma County, Oklahoma. Honorable REMANDED FOR FURTHER PROCEEDINGS. Noma Gurich, Judge. Plaintiff/Appellant, First Opinion by Joplin, J.; Mitchell, P.J., and Buettner, Fidelity Bank N.A. (First Fidelity) seeks review J., concur. of the trial court’s order denying its motion to 107,831 — In the Matter of the Guardianship reconsider the granting of a default judgment of Janet Maureen Carlton, an incapacitated in favor of Defendant/Appellee, Vonzell Solo- person. Brenda C. Bruton, in her capacity as man. Appellant alleges the trial court erred by guardian of Janet Maureen Carlton, Petitioner/ refusing to vacate the default judgment. Appel- Appellee/Counter-Appellant, vs. Newton, lant claims its file stamped copy of the pretrial O’Connor, Turner & Ketchum, P.C., an Okla- order stated trial was set to begin April 17, 2007 homa Professional Corporation, Respondent/ and Appellant appeared for trial on that date, Appellant/Counter-Appellee. Appeal from the one day late. The copy of the pretrial order District Court of Tulsa County, Oklahoma. filed in the court clerk’s office stated trial was Honorable Kyle B. Haskins, Judge. Petitioner/ set for April 16, 2007. Appellee was present and Appellee/Counter-Appellant Brenda C. Bru- ready to proceed on the sixteenth when the ton, in her capacity as guardian of Janet Mau- trial docket was called. Appellant also alleges reen Carlton, and Respondent/Appellant/ the trial court granted additional relief to Counter-Appellee Newton, O’Connor, Turner Appellee that varied from that requested by and Ketchum, P.C. (“Law Firm”) each appeal Appellee at the time of pretrial. Having provisions of the trial court’s decision allowing reviewed the record, we find the completely Law Firm to keep part of the fees paid to it by unexplained date discrepancies of the trial date Sharon Adams, attorney in fact for Carlton information found in the varying pretrial (Decedent), on Decedent’s behalf before Bru- orders requires vacation of the default judg- ton was appointed as her guardian, and order- ment and the trial court abused its discretion ing Law Firm to disgorge part of the fees paid. not doing so. This court reviews an order We AFFIRM. Opinion by Buettner, J.; Mitchell, vacating or refusing to vacate a default judg- P.J., and Joplin, J., concur. ment by the abuse of discretion standard. Fer- 108,371 — Connie Weigert, Plaintiff/Appel- guson Enter., Inc. v. H. Webb Enter., Inc., 2000 OK lant, vs. Dollar General Corporation, Defen- 78, 13 P.3d 480, 482. This appeal proceeds on dant/Appellee. Appeal from the District Court Appellant’s brief only. Appellant’s first propo- of Pottawatomie County, Oklahoma. Honorable sition of error claims the default judgment Douglas L. Combs, Judge. In this premises liabil- should have been vacated, because it meets the ity action, Appellant (Wiegert) appeals from an circumstances for vacating a judgment under order granting summary judgment to Appellee 12 O.S. 2001 §1031(1), (3), (7) and (9). The pre- (Dollar General). The parties do not dispute trial order error compounded the breakdowns Wiegert slipped and fell on a wet floor and that in office procedure that followed. Under simi- Dollar General was aware of the water spill lar office procedural breakdowns the appellate prior to Wiegert’s fall. Dollar General contends courts have determined the gravity of the mis- the spill was caused by a customer dropping a take did not warrant depriving the parties of bottle of water and it did not have sufficient their day in court, especially in light of the fact time to clean up the spill before Wiegert came default judgments are not favored, no unfair into the building. It also contends it had no surprise would have resulted in this case and duty to warn because the water was an open Appellant did not delay in requesting relief and obvious condition on the floor. Viewing from the default. American Bank of Commerce v. the facts and all reasonable inferences in a light Chavis, 1982 OK 66, 651 P.2d 1321, 1324. Appel- most favorable to Wiegert, we find summary

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1955 judgment was improperly granted. On the O.S. §3237. AFFIRMED. Opinion by Mitchell, record before us, we cannot say as a matter of P.J.; Joplin, J., and Buettner, J., concur law that thirty seconds was not enough time to 108,861 — United Parcel Service, Inc. and clean up the water. From the video evidence a Liberty Mutual Insurance Co., Petitioners, vs. jury might conclude there was sufficient time to at least begin cleaning up the spilled water Harold Dickerson and The Workers’ Compen- before Wiegert slipped and fell. Accordingly, sation Court, Respondents. Proceeding to the order of the trial court granting summary Review an Order of a Three-Judge Panel of the judgment in favor of Dollar General is RE- Workers’ Compensation Court. Petitioner VERSED and this case is REMANDED for fur- (Employer) seeks review of an order of a Three- ther proceedings. Opinion by Mitchell, P.J.; Judge Panel of the Workers’ Compensation Joplin, J., concurs; Buettner, J., dissents. Court (Panel) which affirmed in part and modified in part the decision of the trial court Wednesday, August 3, 2011 concerning the cumulative trauma claim of 107,872 — Michael Root and Erin Root, as Par- Respondent (Claimant). Careful review of ents and Next Friend of Cody Root, a minor, paragraph one of the Panel’s order as com- Plaintiffs/Appelants, vs. SDI of Owasso, d/b/a pared with its pre-modified version contained Sonic, Defendant/Appellee. Appeal from the in the trial court’s order reveals ambiguity and District Court of Tulsa County, Oklahoma. confusion as to the Panel’s intent regarding the Honorable Jefferson D. Sellers, Judge. Plaintiffs major cause determination, which is fatal to our (Roots) seek review of the trial court’s order consideration of same on appeal. Without the dismissing the case without prejudice upon its benefit of understanding what the Panel’s deci- grant of Defendant’s (Sonic) Motion to Dismiss sion was on the issue of whether Claimant’s for Roots’ failure to comply with the trial employment activities were the major cause of court’s order requiring them to submit to depo- the right knee injury, we are unable to evaluate sition pursuant to 12 O.S. §3237(E)(1). Roots the correctness of that decision and/or the other also appeal the court’s award of attorney fees findings of appeal. The Panel’s order of October and costs to Sonic in the amount of $1,700, 11, 2010 is VACATED AND REMANDED for which were granted as a discovery sanction. further proceedings. Opinion by Mitchell, P.J.; Because the real party in interest in an appeal Joplin, J., and Buettner, J., concur. from a trial court’s order imposing sanctions (Division No. 4) against counsel directly is counsel himself (and Tuesday, July 5, 2011 not the party he represents in the underlying action), the omission of the designation of 109,344 — Yellow Book Sales and Distribu- Appellant’s counsel as a party in appellate tion Co., Inc., a corporation, Plaintiff/Appel- pleadings constitutes a fatal jurisdictional lee, v. L. Justin Lowe, Defendant/Appellant. defect. Because we are without jurisdiction to Appeal from an order of the District Court of review the allegations of error pertaining to Oklahoma County, Hon. Daniel L. Owens, sanctions imposed directly against counsel Trial Judge, granting summary judgment in Mark Stanley, we refrain from review of the favor of Yellow Book Sales and Distribution court’s fee award. Consideration of the factors Co., Inc. (Publisher). Based on our review of applicable to the imposition of sanctions sup- the record and applicable law, we find the trial ports the trial court’s decision to dismiss this court correctly granted Publisher’s motion for case without prejudice. The record reflects summary judgment and affirm. AFFIRMED. Roots repeatedly ignored requests to schedule Opinion from the Court of Civil Appeals, Divi- the depositions and intentional noncompliance sion IV, by Goodman, P.J.; Rapp, J., and Barnes, with the court order, which supports a finding J. (sitting by designation), concur. of willfulness and/or fault on the part of Roots. Tuesday, July 19, 2011 Their refusal to appear for depositions signifi- cantly impeded Sonic’s ability to defend itself 108,302 — Tracy Cravey, Plaintiff/Appellee, in the case, as the Roots are presumably the v. Emil Spadone, Redfield Farms, Defendant/ most critical witnesses to the circumstances of Appellant. Appeal from the District Court of the accident and primary source of the facts LeFlore County, Hon. Jonathan K. Sullivan, giving rise to their allegations of negligence. Trial Judge. Emil Spadone, Redfield Farms We find no abuse of discretion in the trial (Spadone) appeals the small claims court’s court’s dismissal of the matter pursuant to 12 journal entry of judgment in favor of Tracy

1956 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Cravey. The issues on appeal are whether Spa- of evidence and is supported by competent done and Cravey entered into a contract for the evidence, and is thus sustained. SUSTAINED. sale of a horse and whether Spadone, a non- Opinion from the Court of Civil Appeals, Divi- resident, was subject to the personal jurisdic- sion IV, by Goodman, P.J.; Rapp, J., and Barnes, tion of the court. Upon reviewing the record on P.J. (sitting by designation), concur. appeal, we find the trial court did not err when 109,0205 it found Spadone breached a contractual obli- — Guaranteed Auto Credit & Auto gation to Cravey. There is competent evidence Finance Inc. and Westport Insurance Corp to support this finding, and it is consistent with (New) (FKA ERC), Petitioners/Appellants, v. the appellate record. Further, the court’s exer- Terence Lee Jackson and The Workers’ Com- cise of personal jurisdiction over Spadone was pensation Court, Respondents/Appellees. Pro- proper under the facts presented. For these ceeding to review an order of The Workers’ reasons, we affirm. AFFIRMED. Opinion from Compensation Court, Hon. John Michael the Court of Civil Appeals, Division IV, by McCormick, Trial Judge. Employer seeks Goodman, P.J.; Rapp, J., and Barnes, J. (sitting review of a trial court’s order requiring Claim- by designation), concur. ant Terence Lee Jackson to submit to a medical examination by an Independent Medical Exam- 108,720 — Greg G. Woods, Petitioner/Appel- iner (IME) at Employer’s expense. The order lee, v. Ronnie Nevitt, Defendant/Appellant. appealed is not a reviewable order. It is clearly Appeal from the District Court of Muskogee interlocutory. It does not deny an award nor County, Hon. A. Carl Robinson, Trial Judge. does it constitute a final determination of the Defendant Ronnie Nevitt appeals the trial rights of the parties. The appeal is premature court’s protective order entered against him. and is dismissed. DISMISSED. Opinion from The order required Nevitt to stay away from an the Court of Civil Appeals, Division IV, by auto dealership, Lake Country Chevrolet Cadil- Goodman, P.J.; Rapp, J., and Barnes, J. (sitting lac, and Greg Woods, and remove signs from by designation), concur. his vehicles stating he had been “ripped off” by the dealership. The Protection from Domestic Wednesday, July 20, 2011 Abuse Act under which Woods filed his peti- 107,900 — George E. Thomas, Plaintiff/ tion provides relief for those in a family or dat- Appellant, v. Christina M. Thomas, Defen- ing relationship from harassment, or relief dant/Appellee. Appeal from an order of the from stalking by an unrelated person. The rela- district court of Oklahoma County, Hon. Allen tionship between the parties in the instant case Welch, Trial Judge, awarding Defendant (Wife) is that of a business employee and a customer, $7,375.74, which the court found Plaintiff (Hus- and we find no proof of stalking in the record. band) owed under the terms of the parties’ The evidence indicates Nevitt may have been a divorce decree’s division of Husband’s retire- nuisance to customers and employees, and may ment benefits. The divorce decree provided have trespassed, for which another remedy is that Wife would receive ten percent of Hus- available, but the evidence does not indicate his band’s net monthly payment. The trial court conduct fits the statute’s definition of stalking. found that Wife’s share included ten percent of The trial court’s grant of the protection order any increase in benefits. We hold the trial court must therefore be reversed. REVERSED. Opin- did not modify the decree, but simply enforced ion from the Court of Civil Appeals, Division IV, it. We remand, however, to correct the compu- by Goodman, P.J.; Rapp, J., and Barnes, J. (sit- tation of the amount of arrearage. AFFIRMED ting by designation), concur. IN PART, REVERSED IN PART, AND RE- 109,048 — VF Jeanswear LP and VF Corp MANDED WITH INSTRUCTIONS. Opinion Own Risk #16673, Petitioners/Appellants, v. from the Court of Civil Appeals, Division IV, Melinda Beel and The Workers’ Compensation by Rapp, J.; Goodman, P.J., and Barnes, J. (sit- Court, Respondents/Appellees. Proceeding to ting by designation), concur. review an order of a three-judge panel of The Thursday, July 21, 2011 Workers’ Compensation Court, Hon. Bob Lake Grove, Trial Judge. Employer seeks review of a 108,797 — Joseph W. Hendricks, Plaintiff/ three-judge panel’s order granting Claimant Appellant, v. Justin Jones ex rel. State of Okla- Melinda Beel benefits. We review the order homa ex rel. Oklahoma Department of Correc- using the any-competent-evidence standard of tions, Defendants/Appellees. Plaintiff Joseph review. The panel’s award is within the range Walton Hendricks appeals the trial court’s

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1957 order granting summary judgment to Defen- Based upon our review of the facts and appli- dant Oklahoma Department of Corrections cable law, we reverse and remand for further (ODOC). Plaintiff filed a petition seeking to proceedings. REVERSED AND REMANDED. enjoin ODOC from enforcing the requirements Opinion from the Court of Civil Appeals, Divi- of the Oklahoma Sex Offender Registry Act sion IV, by Goodman, P.J.; Rapp, J., and Barnes, (OSORA) against him. The trial court held a J. (sitting by designation), concur. hearing addressing constitutional issues raised Friday, July 22, 2011 by both parties, found OSORA was constitutional, and granted ODOC’s motion, denying 108,148 — First Liberty Bank, Plaintiff/ Plaintiff’s request for an injunction. Summary Appellee, v. Allan Arnold, Defendant, and judgment was correct as to the application of Robert Brown, Trustee and Interested Party, OSORA to this Plaintiff. However, Plaintiff’s and Leonard Wesley Arnold and Jane Harness, arguments regarding the retroactive applica- Co-Personal Representatives/Appellants. Ap- tion of subsequent OSORA provisions enacted peal from an order of the District Court of after he first became subject to its provisions Oklahoma County, Hon. Noma D. Gurich, Trial are remanded to the trial court for further pro- Judge. This appeal was originally filed by the ceedings consistent with this court’s opinion in defendant, Allan Arnold (Arnold), from an Reimers v. Department of Corrections, 2011 OK Order Determining Exempt Asset And Con- CIV APP ___, ___ P.3d. ___, issued February 14, tinuing Deadline For Return of Writ entered in 2011. The trial court’s order is affirmed in part, an action brought by the plaintiff, First Liberty reversed in part, and the matter remanded for Bank (Bank). During the course of this appeal, further proceedings. AFFIRMED IN PART, Arnold filed for bankruptcy and the automatic REVERSED IN PART, AND REMANDED. stay has been lifted. The Bankruptcy Trustee, Opinion from the Court of Civil Appeals, Divi- Robert Brown, became an interested party and sion IV, by Goodman, P.J.; Rapp, J., and Barnes, appears here in that capacity opposing the J. (sitting by designation), concur. appeal. Arnold then died and his co-personal representatives, Leonard Wesley Arnold and 108,963 — Kathleen Minyard, Plaintiff/ Jane Harness substituted as appellants. Appel- Appellee, v. State of Oklahoma ex rel. Oklaho- lants claim that personal property seized by ma Department of Corrections, Defendant/ Bank in execution is exempt under 31 O.S.Supp. Appellant. Appeal from the District Court of 2010, § 1(A)(3). The property in question was Oklahoma County, Hon. Noma D. Gurich, Trial used for parties, decoration and personal enjoy- Judge. Defendant Oklahoma Department of ment. The trial court’s interpretation of the Corrections appeals the trial court’s order statute and its finding that the property was granting Plaintiff Kathleen Minyard’s motion not reasonably necessary for household or for summary judgment which required her name family use is not contrary to the law or evi- be stricken from the Oklahoma Sex Offender dence. Therefore, the judgment denying the Registry and ordered her not to register as a sex exemption is affirmed. Opinion from the Court offender. Plaintiff filed a motion to dismiss the of Civil Appeals, Division IV, by Rapp, J.; appeal. We deny Plaintiff’s motion to dismiss Goodman, P.J., and Barnes, J. (sitting by desig- the appeal. Based upon our review of the facts nation), concur. and applicable law, we reverse the decision of the trial court. REVERSED AND REMANDED. Friday, July 29, 2011 Opinion from the Court of Civil Appeals, Divi- 108,495 — Loyd Adams doing business as sion IV, by Goodman, P.J.; Rapp, J., and Barnes, Loyd’s of Kern Painting, Plaintiff/Appellant, v. J. (sitting by designation), concur. City of Tulsa, a municipal corporation; Tulsa 108,819 — Michael Bollin, Plaintiff/Appel- Metropolitan Utility Authority, a public trust; lee, v. Justin Jones ex rel. State of Oklahoma ex and, Albert Martinez, Defendants/Appellees. rel. Oklahoma Department of Corrections, Appeal from an order of the District Court of Defendants/Appellants. Appeal from the Dis- Tulsa County, Hon. P. Thomas Thornbrugh, trict Court of Oklahoma County, Hon. Bryan C. Trial Judge. The trial court plaintiff, Loyd Dixon, Trial Judge. Defendant Oklahoma Adams, d/b/a Loyd’s of Kern Painting Department of Corrections appeals the trial (Adams), appeals an Order denying his motion court’s order granting Plaintiff Michael Bollin’s to reconsider an Order dismissing his petition requested injunction against ODOC’s attempts to modify or vacate a prior judgment of dis- to compel him to register as a sex offender. missal, affirmed on appeal, entered in action

1958 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 against the defendants, City of Tulsa, Tulsa evidence. The parties presented conflicting evi- Metropolitan Utility and Albert Martinez. This dence concerning whether Claimant sustained action was previously before this Court in Loyd a change of condition for the worse to her left Adams, d/b/a Loyd’s of Kern Painting v. City of shoulder. Although there may be evidence Tulsa, Tulsa Metropolitan Utility and Albert Mar- supporting the appealing party’s claim, this tinez, Appeal 106,485 (Adams I). All Defendants Court is confined on review to a search for any moved to dismiss the petition to modify or competent evidence which could support the vacate. The trial court sustained the motion to order of the workers’ compensation court. This dismiss. The only proposition asserted in the Court finds the Order Denying Change of Con- motion is that the “settled-law-of-the-case doc- dition for the Worse is supported by competent trine does not apply to petitions to vacate.” evidence. SUSTAINED. Opinion from Court of Settled-law-of-the-case doctrine precludes fur- Civil Appeals, Division IV, by Rapp, J.; Good- ther consideration. The trial court did not err man, P.J., and Barnes, J. (sitting by designa- by denying Adams’ motion to reconsider or by tion), concur. denying the petition to modify or vacate the 108,753 — Melissa I. Hill, Petitioner, v. Ameri- judgment affirmed in Adams I. The Appellees can Airlines and The Workers’ Compensation applied for attorney fees and costs as a sanc- Court, Respondents. Proceeding to Review an tion against Adams’ counsel. This Court can- Order of a Three-Judge Panel of The Workers’ not find that Adams’ appeal falls within the Compensation Court, Hon. Mary A. Black, Trial scope of a frivolous appeal. In addition, the Judge. Claimant alleges that the Order on Appeal Federal law provided by Apppellees does not is not supported by competent evidence. serve to authorize this Court to sanction an Although there may be evidence supporting the attorney. Therefore, Appellees’ request for appealing party’s claim, this Court is confined attorneys’ fees and costs is denied. AFFIRMED. on review to a search for any competent evi- Opinion from Court of Civil Appeals, Division dence to support the workers’ compensation IV, by Rapp, J.; Goodman, P.J., and Barnes, J. court’s decision. A review of the evidence estab- (sitting by designation), concur. lishes there is competent evidence to support the Tuesday, August 2, 2011 three-judge panel’s Order on Appeal. SUS- TAINED. Opinion from Court of Civil Appeals, 107,424 — Barbara Chappelle, Special Admin- Division IV, by Rapp, J.; Goodman, P.J., and istrator for the Estate of Victor Chappelle, Plain- Barnes, J. (sitting by designation), concur. tiff/Appellant, v. Jonathan C. Schnitker, M.D. and Tulsa Radiology Associates, Inc., Defen- ORDERS DENYING REHEARING dants/Appellees. Plaintiff appeals the trial (Division No. 1) court’s order denying her motion for new trial Friday, June 24, 2011 after judgment on a jury verdict in favor of 108,296 — Countrywide Home Loans, Inc., Defendants Jonathan C. Schnitker, M.D. and Plaintiff/Appellant, vs. Bancfirst, a State Bank- Tulsa Radiology Associates, Inc. Based upon our ing Corporation, Defendant/Appellee, and review of the facts and applicable law, we affirm. Bobby L. Hinkle; Julia Hinkle; John Doe; Jane AFFIRMED. Opinion from the Court of Civil Doe; Logan County Treasurer and the Board of Appeals, Division IV, by Goodman, P.J.; Rapp, J., County Commissioners of Logan County, concurs in part and dissents in part; Barnes, J. Defendants. Plaintiff/Appellant’s Petition for (sitting by designation), concurs. Rehearing filed May 12, 2011 is DENIED. Tuesday, August 9, 2011 Thursday, July 7, 2011 109,050 — Janet Elaine Ronning, Petitioner, v. 107,577 — Denise Crenshaw, Plaintiff/Appel- Oklahoma Blood Institute, Compsource Okla- lee, vs. Michael Johnson, Defendant/Appel- homa and The Workers’ Compensation Court, lant. Defendant/Appellant’s Petition for Respondents. Proceeding to Review an Order of Rehearing filed June 7, 2011 is DENIED. The Workers’ Compensation Court, Hon. Kent C. Eldridge, Trial Judge, finding Claimant did 107,754 — Jerry D. Dean and James H. Pilk- not sustain a change of condition for the worse ington, individually and as Representatives of to her left shoulder in this workers’ compensa- a Class of Claimants, Petitioners, and Gus A. tion action. The question presented for this Farrar, James E. Lowell, Pamla K. Cornett, W.E. Court is whether the workers’ compensation Sparks, and Gary A. Eaton, Petitioner/Appel- court’s decision is supported by competent lants, vs. Multiple Injury Trust Fund f/k/a Spe-

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1959 cial Indemnity Fund of the State of Oklahoma, Billy Joe Hensley, deceased, Appellee. Appel- administered by CompSource Oklahoma f/k/a lees Petition for Rehearing and Brief in Sup- State Insurance Fund, and the Workers Compen- port, which was timely filed, is hereby sation Court, Respondents. Petitioner/Appel- DENIED. lants’ Petition for Rehearing filed June 24, 2011 Wednesday, July 27, 2011 is DENIED. 106,550 — John Luckett, Plaintiff/Appellant, Friday, July 15, 2011 v. Staci Haley a/k/a Staci B. Jones and Ken- 108,227 — Alan Benefiel, Plaintiff/Appellee, drike D. Jones, Defendants, and Bank of Ameri- vs. Jewel Boulton, Defendant/Appellant, and ca, Garnishee/Defendant/Appellee. Appellant’s Christa Benefiel, Defendant. Plaintiff/Appel- Petition For Rehearing Or Alternatively Recon- lee’s Petition for Rehearing filed June 21, 2011 sideration Based On Court Erroneously Mis- is DENIED AS UNTIMELY FILED. Stating Facts” is DENIED. Thursday, July 21, 2011 Thursday, July 28, 2011 108,521 — Jana Robinson, Plaintiff/Appellee, 107,529 (companion with 107,530) — In the vs. Herman Tracy Clark, Defendant/Appel- Matter of the Estate of Clarence R. Wright, Jr., lant. Defendant/Appellant’s Petition for deceased. Carolyn W. Henthorn, Clarence R. Rehearing filed July 6, 2011 is DENIED. Wright, III, and Raymond Earl Wright, Peti- tioners/Appellees, v. Carol Wright, Personal Thursday, August 4, 2011 Representative of the Estate of Clarence R. 107,914 (Cons. w/108,398 & 108,498) — Vernon Wright, Jr., Respondent, and McAfee & Taft, W. Brock and Vernon Brock Consulting, L.L.C., Respondent/Appellant. Appellant’s Petition Plaintiff/Appellants/Counter-Appellees, vs. for Rehearing is hereby DENIED. Hoco Drilling, L.L.C. and Steven S. Robson, 107,530 (companion with 107,529) — Mary Defendant/Appellees/Counter-Appellants. Carol Wright, Trustee of the Clarence R. Wright, Plaintiff’s petition for rehearing is DENIED. Jr., Revocable Trust, Plaintiff, v. C.R. Wright, III, Trustee of the trust created for the benefit of (Division No. 2) C.R. Wright, III under an irrevocable trust Monday, June 27, 2011 agreement dated July 17, 2003, Carolyn Wright 107,702 — John Hudson, Petitioner/Appel- Henthorn and C.R. Wright, III, Co-Trustees of lee, vs. Shawn Rains, Respondent/Appellant. the trust created for the benefit of Carolyn Appellee, John Hudson’s Petition for Rehear- Wright Henthorn under an irrevocable trust ing is hereby DENIED. agreement dated July 17, 2003; Raymond Earl Wright and C.R. Wright, III, Co-Trustees of the Friday, July 1, 2011 trust created for the benefit of Raymond Earl 107,396 — State of Oklahoma ex rel. The Wright under an irrevocable trust agreement Oklahoma Board of Medical Licensure and dated July 17, 2003; C.R. Wright, III, Individu- Supervision, Plaintiff/Appellee, v. Robert L. ally, Carolyn Wright Henthorn, Individually; Kale, M.D., License No. 24797, Defendant/ Raymond Earl Wright, Individually; and Peli- Appellant. Appellant’s Petition for Rehearing can Narrows Investments, LLC, Defendants/ is hereby DENIED. Appellees, and Carolyn W. Henthorn, Ray- mond Earl Wright and Clarence R. Wright, III, Wednesday, July 6, 2011 as beneficiaries of the Clarence R. Wright, Jr. 107,104 — Margaret Bernadine Cornforth, Revocable Trust and the Kathryn R. Wright Petitioner/Appellee, vs. Richard Luke Corn- Revocable Trust, and Clarence R. Wright, III as forth, Respondent/Appellant. Appellant’s Trustees of the Kathryn R. Wright Revocable April 26, 2011 Petition for Rehearing is hereby Trust, Counterclaim Plaintiffs/Appellees, v. DENIED. Mary Carol Wright, Trustee of the Clarence R. Wright, Jr. Revocable Trust, Counterclaim Friday, July 15, 2011 Defendant, and Carolyn W. Henthorn, Ray- 108,500 — In the matter of the Estate of Hens- mond E. Wright and Clarence R. Wright, III, as ley s/p/a Billy Joe Hensley, Deceased, Billy Joe beneficiaries of the Clarence R. Wright, Jr. Hensley, II, Dianne Kerby and Daniel T. Hens- Revocable Trust and the Kathryn R. Wright ley, Appellants, v. Dorice K. Hensley Shanklin, Revocable Trust, and Clarence R. Wright, III Executrix of the Estate of Bill Hensley s/p/a and Raymond Earl Wright, as Trustees of the

1960 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Kathryn R. Wright Revocable Trust, Third Tuesday, June 14, 2011 Party Plaintiffs, v. Mary Carol Wright, an Indi- 108,611 — Dale Gilliland, Petitioner, vs. vidual, Third Party Defendant, and McAfee & Oklahoma Corporation Commission and Taft, Appellant. Appellant’s Petition for Rehear- Compsource Oklahoma, Respondents. The ing is hereby DENIED. Application for Rehearing of Petitioner, filed Tuesday, August 9, 2011 June 3, 2011, is DENIED. 107,798 — Sheila R. Edwards, Petitioner/ Friday, June 24, 2011 Appellee, vs. Keith W. Edwards, Defendant/ Appellant. Petitioner/Appellee’ Petition for 108,129 — City of Midwest City, Petitioner, Rehearing is DENIED. vs. Cynthia Ann Maddux and the Workers’ Compensation Court, Respondents. The Peti- (Division No. 3) tion for Rehearing filed by Respondent, Cyn- Thursday, May 19, 2011 thia Ann Maddux, on May 11, 2011, is 107,279 — Ray Bagwell, Richard Gathman, DENIED. Bessie Gathman, David O’Hara, and Deborah 108,276 — Deyo Paddyaker and Donna Padd- O’Hara, Plaintiffs/Appellants, vs. Tulsa Coun- yaker, individuals, Plaintiffs/Appellants, vs. ty Board of Adjustment, Defendant/Appellee, Juanita Griffith and Newcastle Public Works and Anchor Stone Company, Intervenor. The Authority, Defendants/Appellees. Appellants’ Petition for Rehearing of Appellants, Ray Bag- Petition for Rehearing Regarding Appellants’ well, Richard Gathman, Bessie Gathman, David Damages Claim and Brief in Support, filed O’Hara, and Deborah O’Hara, is hereby May 19, 2011, is DENIED. DENIED. Tuesday, July 12, 2011 107,626 (Cons. w/Case No. 107,643) — Stock- mans Bank, Plaintiff/Appellant, vs. Gary B. 108,599 — Wsbaldo Valdez and Linda Var- Watkins, Defendant/Appellee. The Petition for gas, Plaintiffs/Counter-Defendants/Appel- Rehearing filed herein is denied. DENIED. lants, vs. Occupants of 3908 SW 24th Street, Oklahoma City, Oklahoma and Oklahoma Friday, May 20, 2011 County Treasurer, Defendants/Cross-Defen- 108,143 — Eddie Griggs, Petitioner, vs. dants, and Mae Ouellette, Defendant/Counter- Nabors Drilling USA, LP, and Zurich Insurance Plaintiff/Cross-Plaintiff/Third-Party Plaintiff/ Company, and The Workers’ Compensation Counter-Defendant/Appellee, vs. Hector Var- Court, Respondents. The Petition for Rehear- gas, Third-Party Defendant/Counter-Plaintiff. ing and Brief in Support of Respondents/ Appellants’ Petition for Rehearing and Brief in Appellees, Nabors Drilling, USA, LP and Support Thereof, filed July 6, 2011, is DENIED. Zurich Insurance Company, filed April 13, (Division No. 4) 2011, is DENIED. Thursday, June 9, 2011 Wednesday, May 25, 2011 108,057 — Self & Associates, Inc., Plaintiff/ 107,965 — American Residential Community Appellant, vs. Justin Wade Jackson, Individually; and Ace Insurance Company, Petitioners, vs. Jeffrey T. Stites, Individually; and the law Office Levonna Corley and the Workers’ Compensa- of Jef Stites, PLLC, Defendants/Appellees. Appel- tion Court, Respondents. The Petition for lees’ Petition for rehearing is DENIED. Rehearing, filed by Appellants/Petitioners on Friday, July 22, 2011 April 28, 2011, is DENIED. 109,148 — Mercy Health Center, Petitioner, 108,186 — In the Matter of the Estate of Inez vs. Kenny Moore and The Workers’ Compen- Nix, a/k/a Earnest Inez Nix, Deceased. Carlos sation Court, Respondents. Respondent’s Peti- A. Williamson, Petitioner/Appellant/Cross- tion for Rehearing is hereby DENIED. Appellee, vs. The Oklahoma Department of Wildlife Conservation, Respondent/Appellee/ 107,828 — Jimmie Clunn and Jummy Tygart, Cross-Appellant. Carlos A. Williamson’s Peti- Plaintiffs/Appellees, vs. Gerald L. Kinion, tion for Rehearing and Brief in Support, filed Defendant/Appellant, and Brown, Kinion & May 19, 2011, is DENIED. Company, CPA, Inc., and Susan Brown, Defen- dants. Appellant’s Petition for Rehearing is hereby DENIED.

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1961 107,829 — Jimmie Clunn and Jummy Tygart, Plaintiffs/Appellees, vs. Brown, Kinion & Company, CPA, Inc., and Gerald L. Kinion and Susan Brown, Defendants. Appellant’s Petition for Rehearing is hereby DENIED. 107,503 — Sandra M. Lefler, Plaintiff/Appel- ant, vs. Gregory G. Meier, individually and doing business as “The Meier Law Firm, LLC,” and “Meier, Morgan, Hatley and Stock,” and as a member of Meier & Cole, PLLC, an Oklahoma professional limited liability company, and Uptown Properties, LLC, an Oklahoma limited liability company; The Meir Law Firm a/k/a The Meier Law Firm, LLC, an unincorporated business association; and Meier Morgan, Hatley & Stock, an unincorporated business association; Meier & Cole, PLLC, an Oklahoma professional limited liability company; Uptown Prop- erties, LLC, an Oklahoma limited liability company, Defendants/Appellees, and the F&M Bank & Trust Company, Defendant. Appellant’s Peti- tion for Rehearing is hereby DENIED. Tuesday, August 2, 2011 109,148 — Debbie Roca, now Houston, Plain- tiff/Appellant, v. Carlos Roca, Defendant/ Appellee. Appelee’s Petition for Rehearing is DENIED.

On Monday, July 11, 2011, the Court of Criminal Appeals moved to the new Oklahoma Judicial Center. The new address will be: Court of Criminal Appeals Oklahoma Judicial Center 2100 N. Lincoln Blvd., 3rd Floor Oklahoma City, Oklahoma, 73105-4907. All the telephone numbers for the Court of Criminal Appeals have changed effective July 11, 2011. The new main line number will To get your free listing on be 405-556-9600. For a complete list of telephone and room numbers for the the OBA’s lawyer listing service! Judges, Staff Attorneys and Employees Just go to www.okbar.org and log into of the Court of Criminal Appeals, please your myokbar account. go to www.okcca.net/online and click Then click on the “Find a Lawyer” Link. the “contact” tab.

1962 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1963 1964 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 CLASSIFIED ADS

SERVICES SERVICES

HANDWRITING IDENTIFICATION Want To Purchase Minerals AND OTHER POLYGRAPH EXAMINATION OIL/GAS INTERESTS. Send details to: P.O. Box 13557, Board Certified Court Qualified Denver, CO 80201. Diplomate — ABFE Former OSBI Agent MEDICAL LEGAL NURSE CONSULTANT – Medi- Life Fellow — ACFE FBI National Academy cal Record Review. Review your case for merit, Arthur D. Linville (405) 636-1522 analyze the record, organize, define medical terms, medical research and provide a summary report of INTERESTED IN PURCHASING PRODUCING & the findings. Reviews completed in a timely manner. NON-PRODUCING Minerals; ORRI; O & G Interests. Will keep you informed on case facts. Offers advice on: Please contact: Patrick Cowan, CPL, CSW Corporation, products liability, criminal, workers’ compensation, P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) investigation, personal injury, nursing home abuse, 755-7200; Fax (405) 755-5555; E-mail: [email protected]. negligence and medical malpractice. Cindy Hall, RN, BSN, Medical Legal Nurse Consultant – 26 years OF COUNSEL LEGAL RESOURCES — SINCE 1992 — experience. Justifiable Solutions Consultant Group Exclusive research & writing. Highest quality: trial and 405-537-7958, [email protected] and appellate, state and federal, admitted and practiced www.justifiable-consultant.com. U.S. Supreme Court. Over 20 published opinions with numerous reversals on certiorari. MaryGaye LeBoeuf CONTRACT TRANSACTIONAL LEGAL SERVICES (405) 728-9925, [email protected]. — experienced transactional attorney available for contract legal services. Extensive experience with EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL M&A, due diligence/contract review, real property, Fitzgerald Economic and Business Consulting contract drafting, negotiations, business disputes, etc. Economic Damages, Lost Profits, Analysis, Business/ Located in Tulsa but available to travel. Contact me at Pension Valuations, Employment, Discrimination, (918) 935-3409 or [email protected]. Divorce, Wrongful Discharge, Vocational Assessment, Life Care Plans, Medical Records Review, Oil and Gas Law and Damages. National, Experience. Call Patrick OFFICE SPACE Fitzgerald. (405) 919-2312. OFFICE SPACE AVAILABLE IN EDMOND. Office-

Appeals and litigation support sharing available for a person who makes a good fit. Offices include executive desk and credenza, shared Expert research and writing by a veteran generalist amenities include reception/waiting area and large who thrives on variety. Virtually any subject or any conference room, receptionist, Internet, copier and fax: type of project, large or small. NANCY K. ANDER- [email protected]. SON, (405) 682-9554, [email protected]. Creative. Clear. Concise. TULSA VIRTUAL LAW OFFICES for as low as $185 per month. Includes office, telephone, conference BRIEF WRITING, APPEALS, RESEARCH AND DIS- room, receptionist, voicemail, free parking for attorney SUCOPPVERORT.Y Over 16 years experience in civil and clients. 918-747-4600. litigation. Backed by established firm. Neil D. Van Dalsem, Taylor, Ryan, Schmidt & Van Dalsem PC OFFICE SPACE AVAILABLE: 222 NW 13th St. Contact (918) 749-5566, [email protected]. Robert 405-524-3403. BUSINESS VALUATIONS: Marital Dissolution * Es- TULSA LAW OFFICES has office space and virtual of- tate, Gift and Income Tax * Family Limited Partner- fices available in a converted estate mansion inthe ships * Buy-Sell Agreements * Mergers, Acquisitions, Utica Square area. Secretary, receptionist, Internet and Reorganization and Bankruptcy * SBA/Bank required. other amenities at reasonable rates. Free parking for at- Dual Certified by NACVA and IBA, experienced, reli- torney and clients. 918-747-4600. able, established in 1982. Travel engagements accepted. Connally & Associates PC (918) 743-8181 or bconnally@ VIRTUAL OFFICE – NICHOLS HILLS BUSINESS AD- connallypc.com. DRESS, mail and package distribution, personalized telephone answering, receptionist to greet your clients, FREELANCE BOOK LAWYER — with highest rating 24-hour voicemail, five (5) hours of conference room and with 25+ years’ experience on both sides of the table use per month. Additional services available. Packages is available for strategic planning, legal research and start at $235/month. 405-242-6440. writing in all state and federal trial and appellate courts and administrative agencies. Admitted and practiced before the United States Supreme Court. Janice M. Dansby, 405-833-2813, [email protected].

Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1965 OFFICE SHARE POSITIONS AVAILABLE

OFFICE SHARE FOR RENT: Downtown Tulsa, OK. Two MILLER DOLLARHIDE, AV-RATED, DOWNTOWN blocks from district courthouse. Access to conference OKC FIRM, seeks associate with 3 – 5 years experi- room, receptionist, fax and copier. Office expenses, phone ence in civil litigation. Courtroom experience, depo- and Internet are included in rent. 918-587-0097. sition experience and excellent research and writing skills essential. Salary and incentives commensurate POSITIONS AVAILABLE with experience. Health insurance and other benefits included. Send resume, transcript and writing sample THE GRAND RIVER DAM AUTHORITY (GRDA) is to [email protected]. seeking a highly motivated individual to serve as an ASSOCIATE WITH 4-8 YEARS CIVIL DEFENSE Asst. General Counsel. Position is located in Vinita, litigation experience needed by AV-rated Tulsa firm. Oklahoma with some travel necessary. Preference will Insurance defense or railroad litigation a plus. Very be given to applicants with at least 5 years experience busy, fast-paced office offering competitive salary, in government law and/or the power industry. GRDA health/life insurance, 401k, etc. Send resume and is an agency of the State of Oklahoma and employees writing sample (10 pg. max) in confidence via email receive state employee benefit package. Salary com- to [email protected]. mensurate with experience. Please send resume’ and a writing sample to: Gretchen Zumwalt-Smith, FULL-TIME POSITION AS ASSOCIATE ATTORNEY General Counsel, P.O. Box 409, Vinita, OK 74301. Or for law firm providing services for major legal plan. [email protected]. Equal Opportunity Employer. Requires excellent telephone manner and people skills, must be fluent in Spanish, and have broad knowledge THE DELAWARE NATION IS SEEKING ONE DIS- of the law with at least two years experience. Great op- TRICT JUDGE for the Delaware Nation Tribal Court. portunity for attorneys who want to keep active while Must be an attorney in good standing with the Okla- parenting or approaching retirement. Those with inde- homa Bar Association, or another state bar association pendent practices need not apply. Send resumes to Hu- with reciprocity with the Oklahoma Bar Association man Resources Dept. P.O. Box 1046, Tulsa, OK 74101. with at least five (5) years experience in the practice of law. Contract position. Please send resumes and PART-TIME ASSISTANT, PARALEGAL, AND/OR LE- inquiries to: [email protected]. Ap- GAL SECRETARY for office practice (oil and gas, pro- plications accepted until August 20. Position to be ap- bate, estate planning, general business); variable work- pointed by Sept. 1, 2011. load, flexible hours, some bookkeeping helpful; send resume including legal experience and software profi- THE DELAWARE NATION IS SEEKING THREE AP- ciencies to [email protected]. PELLATE JUDGES for the Delaware Nation Tribal GLENDENING MCKENNA & PRESCOTT PLLC a Court. Must be an attorney in good standing with the south Tulsa medical/general civil defense firm seeks Oklahoma Bar Association, or another state bar asso- a receptionist/secretary whose responsibilities will ciation with reciprocity with the Oklahoma Bar As- include scheduling and document management. Send sociation with at least ten (10) years experience in the resume to [email protected]. practice of law. Contract position. Please send resumes and inquiries to: [email protected]. IN-HOUSE TRANSACTIONAL ATTORNEY. Estab- Applications accepted until August 20. Position to be lished OKC company seeks a transactional attorney appointed by Sept. 1, 2011. with 3 to 7 years experience to provide legal counsel primarily in the areas of commercial leasing, real es- RUBENSTEIN & PITTS PLLC IN EDMOND SEEKS tate acquisitions and other commercial transactions. legal assistant to join transactional and litigation Superior analytical, critical thinking, problem solv- practice. Position will involve business formation ing, communication, legal drafting and negotiating and related work, estate planning, probate, along skills required. To be considered, applicants must with family law and civil litigation. Position requires provide a cover letter with salary requirements and proficiency in basic word processing programs, at- a current résumé to “Box S,” Oklahoma Bar Associa- tention to detail and excellent organizational skills. tion, P.O. Box 53036, Oklahoma City, OK 73152. Submit cover letter, resume and salary requirements via email to: [email protected]. POSITIONS WANTED DOWNTOWN OKLAHOMA CITY LAW FIRM SEEKS FORMER LICENSED ATTORNEY WITH OVER 30 experienced paralegal or legal assistant for the estate YEARS civil practice experience seeks position with planning practice area. This position requires the ad- law firm or corporation. Contact Jim Golden at vanced skills necessary to work with tax attorneys to [email protected] or (405) 209-0110. organize and assemble sensitive information to be used in the development of comprehensive estate plans. Clear and concise writing skills, along with a working FOR SALE knowledge of estate planning concepts and documents FOR SALE: OLD ENGLISH LEGAL DOCUMENTS. are required. A minimum of five years experience is re- Handsomely framed with seals. From reign of King quired. Compensation will be commensurate with ex- George II dated 1747; size 37” x 38”; price $2,250. From perience and skills. Submit resume and references to: reign of King George III dated 1783; size 28” x 31”; [email protected]. price $1,250. Call 918-582-1720.

1966 The Oklahoma Bar Journal Vol. 82 — No. 21 — 8/13/2011 Vol. 82 — No. 21 — 8/13/2011 The Oklahoma Bar Journal 1967