Volume 81 u No. 26 u October 2, 2010 2130 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 OFFICERS & BOARD OF GOVERNORS Allen M. Smallwood, President, Tulsa Deborah Reheard, President-Elect, Eufaula Mack K. Martin, Vice President, Oklahoma City events Calendar Jon K. Parsley, Immediate Past President, Guymon Jack L. Brown, Tulsa OCTOBER 2010 Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami 5 OBA New Lawyer Experience; 8:30 a.m.; Oklahoma Bar Center, Glenn A. Devoll, Enid Oklahoma City; Contact: Jim Calloway (405) 416-7051 Steven Dobbs, Oklahoma City 6 OBA Clients’ Security Fund Committee Meeting; 2 p.m.; Oklahoma W. Mark Hixson, Yukon Jerry L. McCombs, Idabel Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Lou Ann Moudy, Henryetta Micheal Salem (405) 366-1234 David A. Poarch, Norman 8 OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Ryland L. Rivas, Chickasha Susan S. 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Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2133 Index To Opinions Of Court of Civil Appeals
2010 OK CIV APP 89 LINDA STEWART, Plaintiff/Appellant, vs. NYT BROADCAST HOLDINGS, L.L.C., and GRIFFIN COMMUNICATIONS, L.L.C., Defendants/Appel- lees. Case No. 107,015...... 2135
2010 OK CIV APP 90 J. LYNN BOCK, et al., Plaintiffs/Appellees, vs. ROBERT E. SLAT- ER, JR., et al., Defendants/Appellants, and WOODWARD HOTEL CORPORATION, An Oklahoma Corporation d/b/a NORTHWEST INN OF WOODWARD, OKLA- HOMA, et al., Nominal Defendants/Appellants, and CHARLOTTEVILLE HOTEL CORPORATION, an Oklahoma Corporation, et al., Nominal Defendants. Case No. 107,562 (consolidated with Case No. 107,566)...... 2137
2010 OK CIV APP 88 MARK SHAPIRO, Petitioner, vs. CITY BEVERAGE CO. LLC, CNA INSURANCE GROUP, and THE WORKERS’ COMPENSATION COURT, Respon- dents. Case No. 107,784...... 2141
2010 OK CIV APP 91 TOM CHENOWETH, Plaintiff/Appellant, vs. CITY OF MIAMI, Defendant/Appellee. Case No. 107,567...... 2144
2134 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 Court of Civil Appeals Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2010 OK CIV APP 89 inside the Goldsby Gaming Center (GGC) at 11:06 A.M. that same day, as well as other LINDA STEWART, Plaintiff/Appellant, vs. attempted uses. NYT BROADCAST HOLDINGS, L.L.C., and GRIFFIN COMMUNICATIONS, L.L.C., ¶3 Tyler relayed the information to NPD, Defendants/Appellees. who assigned Detective Ben Davison to the case. On July 8, 2005, Detective Davison Case No. 107,015. August 23, 2010 requested surveillance video of the ATM in APPEAL FROM THE DISTRICT COURT OF GGC from 11:00 A.M. to 11:10 A.M. Unfortu- OKLAHOMA COUNTY, OKLAHOMA nately, GGC gave Detective Davison video HONORABLE NOMA D. GURICH, JUDGE from a different time frame showing one unidentified woman using a card at the ATM. AFFIRMED The NPD showed the video to Tyler, who did Babette Patton, Breathwit & Patton, Oklahoma not recognize the woman. City, Oklahonma, for Appellant, ¶4 On July 27, 2005, Lieutenant Tom Easley1 Robert D. Nelon, Jon Epstein, Hall, Estill, issued a press release in conjunction with the Hardwick, Gable, Golden, & Nelson, Okla- NPD’s Crime Stoppers Program, and requested homa City, Oklahoma, for Appellee NYT the media’s help in circulating the surveillance Broadcast Holdings, L.L.C., video to the public and identify the female sus- S. Douglas Dodd, Michael Minnis, Jon E. Bright- pect. Easley also spoke to various reporters on mire, Doerner, Saunders, Daniel & Anderson, camera, including KFOR’s Jack Damrill and Tulsa, Oklahoma, for Appellee Griffin Televi- KWTV’s Dave Jordan. In Easley’s press release sion OKC, L.L.C. and public statements to the press, he reported that the theft occurred in Norman, that the Larry Joplin, Presiding Judge: fraudulent attempt to use Tyler’s card hap- ¶1 Plaintiff/Appellant Linda Stewart (Stew- pened at GGC, and referred to the unidentified art) seeks review of the trial court’s order deny- woman as a suspect. Easley also said, “[the] ing her motion for new trial after a jury verdict unknown female suspect was down at the for Defendants/Appellees NYT Broadcast Goldsby Gaming Center and had used his Holdings and Griffin Communications (KFOR [Tyler’s] debit card to take cash out of an and KWTV, respectively) on Plaintiff’s claims ATM.” The NPD played the surveillance video for defamation and false light invasion of pri- on a monitor while KFOR and KWTV camera- vacy. In this appeal, Stewart asserts the broad- men recorded it with their video cameras. The casts aired by Appellees were false and unpriv- woman in the surveillance video was the only ileged, constituted libel per se, and the trial suspect in the theft. court erred in denying Stewart’s motion for a ¶5 Beginning on July 27, 2005, KFOR and new trial. Having reviewed the record, we find KWTV broadcast reports about the theft. The no error as alleged. We consequently hold the reports included the surveillance video from order of the trial court and the jury verdict GGC. Although the information the NPD pro- should be, and hereby is, affirmed. vided to the media only referred to her as a ¶2 On July 3, 2005, Roger Tyler (Tyler) report- suspect, KFOR referred to the woman in the ed to the Norman Police Department (NPD) video as a “thief,” an “alleged thief,” a “wallet that his wallet containing credit cards, a debit snatcher,” and a “suspect.” KFOR also report- card, and other items was stolen from his ed that the police believed it was not the sus- vehicle. Shortly after the theft, Tyler cancelled pect’s first time to commit theft. KWTV’s his credit and debit cards and asked his bank report referred to the woman as “an alleged for records indicating where his ATM card was thief trying to live it up on someone else’s used. The records showed someone unsuccess- dime” and was “facing criminal charges in fully attempted to use the debit card at an ATM two separate cities.”
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2135 ¶6 After the broadcasts aired, several people prescribed antidepressants and sleeping pills. approached Linda Stewart (Stewart), the Dr. Davis also recommended counseling, but woman later identified as the person in the Stewart never sought additional treatment. video, concerning the reports. On July 29, 2005, ¶11 In July 2006, Stewart commenced the Jim Russell (Russell), Stewart’s neighbor, noti- instant action against KFOR and KWTV (Defen- fied Stewart that KFOR showed her image in dants), claiming libel and false light invasion of connection with the theft. That same day Stew- privacy. After a six day trial, the jury returned art asked another neighbor, Robert Grimes a verdict in favor of both Defendants for claims (Grimes), if he had seen the reports. Grimes of libel and false light invasion of privacy. said he heard KFOR’s report about a theft but was not watching the screen to see the surveil- ¶12 Stewart filed a motion for new trial. lance video. Stewart did not believe Russell Stewart mainly complained the verdict in favor and brushed it aside knowing she did nothing of the Defendants was not sustained by suffi- wrong. cient evidence and was contrary to law, argu- ¶7 On August 3, 2005, Gaylon Stubblefield ing that Defendants’ reports were false and (Stubblefield), an acquaintance who viewed unprivileged, constituting libel per se. The KWTV’s broadcast, bumped into Stewart at Defendants asserted that competent evidence GGC and inquired about the report. Stubber- supported the jury’s verdict. field, surprised to see Stewart at the casino, ¶13 The trial court denied the Plaintiff’s thought she would have been in jail. Stubble- motion for a new trial. Plaintiff appeals. field testified at trial that he believed Stewart ¶14 In her first proposition of error, Plaintiff had committed the crime and his encounter asserts the evidence supports a finding that the with her at GGC reflected this belief. statements made by KWTV and KFOR were ¶8 After the broadcasts aired, NPD received false and unprivileged, constituting libel per information identifying the suspect as several se, and the jury verdict in favor of the Defen- different people, including Stewart. On August dants was contrary to law. 12 O.S. § 1441; 12 4, 2005, Detective Davison went to Stewart’s O.S. § 1443.1; Johnson v. The Black Chronicle, home and asked her several questions relating 1998 OK CIV APP 77, 964 P.2d 924; Mitchell v. to the theft. Stewart, aware of the news reports, Griffin Television, L.L.C., 2002 OK CIV APP 115, knew why Detective Davison came to her 60 P.3d 1058. Defendant, KFOR, responds, home but did not become concerned due to her arguing the jury verdict should be affirmed innocence. The NPD did not charge Stewart because there was competent evidence to sup- with a crime and did not contact her further. port their finding in favor of KFOR. Badillo v. ¶9 After Detective Davison’s visit, Stewart Mid Century Insurance, 2005 OK 48, ¶2, 121 P.3d called her husband, Danny Stewart (Mr. Stew- 1080, 1088; B-Star, Inc. v. Polyone Corporation, art), who suggested she check her bank records 2005 OK 8, ¶13, 114 P.3d 1082, 1085. Defendant, to see if she, in fact, used the GGC ATM on KWTV, responds similarly, arguing there was July 3, 2005. On August 4, 2005, Stewart went sufficient evidence to support the jury’s con- to her bank and requested records which clusion that the broadcast were not false and showed an ATM withdrawal at GGC on the were privileged, and the verdict must be date and time depicted on the video. Stewart upheld. Badillo v. Mid-Century Ins., 2005 OK 48, began to cry, knowing she was the woman in 121 P.3d 1080, 1088. Additionally, KWTV argues the reports. That same day, Stewart notified the Plaintiff only addresses two of the four ele- her employer, Chickasaw Nation Newcastle ments she is required to prove and does not Gaming Center, of the NPD’s investigation. contend the other two elements lacked proof. Later that evening, Mr. Stewart found KFOR’s PRIVILEGE report online and showed it to Stewart, leav- ing her in a state of shock. ¶15 Of the common-law fair report privilege, the Restatement (Second) of Torts, § 611, ¶10 On August 5, 2005, Stewart’s employer revoked her temporary gaming license and states: suspended her from work for a period of two The publication of defamatory matter months. On August 6, 2005, Stewart went to concerning another in a report of an official Access Medical Center complaining of sleep action or proceeding or of a meeting open loss and depression due to erroneous news to the public that deals with a matter of reports. The attending physician, Dr. Davis, public concern is privileged if the report is
2136 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 accurate and complete or a fair abridge- 964 P.2d at 927. This is true even if the informa- ment of the occurrence reported. tion provided by the police department later The fair report privilege does not provide the was shown to be false. The Defendants pro- media with absolute immunity, but is an duced evidence showing the Norman Police exemption from liability, whether the publica- Department was looking for a woman later tion is true or false, so long as the nature of the identified as Stewart in connection with the occasion which was reported qualifies as an theft of a wallet, and distributed surveillance official action and the report accurately and video of her using what was believed to be fairly disseminates the information gathered Tyler’s ATM card. The Plaintiff presented evi- on that occasion. Wright v. Grove Sun Newspaper dence showing Captain Easley only using the Co., Inc., 1994 OK 37, ¶8, 873 P.2d 983, 989. “It word “suspect” in the press release and press is enough that [the report] is substantially conference while the Defendants’ used the accurate, or . . . its ‘gist’ or ‘sting’ is true.” John- word “thief” in their reports. son v. The Black Chronicle, Inc., 1998 OK CIV APP 77, ¶11, 964 P.2d 924, 927; Crittendon v. ¶19 Whether the reports were substantially Combined Communications Corp., 1985 OK 111, accurate presented a question for the jury to ¶15, 714 P.2d 1026, 1029. Review of a jury ver- determine. The record contains competent evi- dict is extremely narrow, and the verdict must dence from which a jury could conclude the be upheld where there is any competent evi- Defendants’ reports were a substantially accu- dence reasonably tending to support the ver- rate account of the information they were dict. Walker v. St. Louis-San Francisco Ry. Co., given from the official press release and at the 1982 OK 25, ¶10, 646 P.2d 593, 597. official press conference. ¶16 Easley’s press release and press confer- ¶20 We therefore hold the trial court did not ence, held in conjunction with Crime Stoppers, abuse its discretion in denying the Plaintiff’s was an official action because it was an official motion for a new trial. The order of the trial function of the Norman Police Department. As court is AFFIRMED. Public Information Officer (PIO), it was Eas- ley’s official duty to conduct the press confer- BELL, V.C.J., and MITCHELL, J., concur. ence. Police Departments regularly seek the public’s help in identifying suspects or provid- 1. Now, Captain Easley. ing information relating to crimes against the 2010 OK CIV APP 90 community. It is a Police Department’s primary function to solve or prevent crimes, and these J. LYNN BOCK, et al., Plaintiffs/Appellees, types of press conferences are an official means vs. ROBERT E. SLATER, JR., et al., to effectuate that function. Without the public’s Defendants/Appellants, and WOODWARD help, many crimes would go unsolved. HOTEL CORPORATION, An Oklahoma Corporation d/b/a NORTHWEST INN OF ¶17 Easley, the NPD’s liaison to the media, WOODWARD, OKLAHOMA, et al., acted in his capacity as PIO when he issued the Nominal Defendants/Appellants, and press release, invited the media to the press CHARLOTTEVILLE HOTEL conference, asked the public’s help in identify- CORPORATION, an Oklahoma Corporation, ing the only suspect in the theft, and made et al., Nominal Defendants. statements concerning the facts of the case. We hold these acts fall within the “penumbra of Case No. 107,562 (consolidated with Case the official duties” of Easley. Wright, 1994 OK No. 107,566). May 24, 2010 37, ¶7, 873 P.2d at 988. Therefore, the press release and the press conference held in con- APPEAL FROM THE DISTRICT COURT OF junction with Crime Stoppers were official OKLAHOMA COUNTY, OKLAHOMA actions, and, if accurate, the reports thereof by HONORABLE PATRICIA G. PARRISH, KFOR and KWTV fell within the scope of the TRIAL JUDGE fair report privilege. AFFIRMED IN PART, REVERSED IN PART, ¶18 As we have noted, the privilege attaches AND REMANDED WITH DIRECTIONS so long as the reports were a substantially accurate account of the information the Nor- Debra McCormick, Eugene K. Bertman, man Police Department and Easley provided RUBENSTEIN, MCCORMICK & PITTS, the media. Johnson, 1998 OK CIV APP 77, ¶11, Edmond, Oklahoma
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2137 Patricia A. Kirch, Oklahoma City, Oklahoma, Cocoa Beach property was not within the juris- for Plaintiffs/Appellees diction of the court, and that the lis pendens were without legal basis and contrary to equity. Mack J. Morgan, III, Harvey D. Ellis, Charles B. The trial court cancelled the lis pendens, and Goodwin, CROWE & DUNLEVY, Oklahoma Plaintiffs appealed. City, Oklahoma, for Defendants/Appellants ¶5 In Appeal No. 105,763 (mandate issued Warren F. Bickford, John B. Heatly, FELLERS, November 13, 2008), Division I of this Court SNIDER, BLANKENSHIP, BAILEY & TIP- reversed and remanded the case with direc- PENS, P.C., Oklahoma City, Oklahoma, for tions to rehear Defendants’ motion with an Nominal Defendants/Appellants emphasis on two issues: (1) whether real prop- DOUG GABBARD II, PRESIDING JUDGE: erty was involved in the action and affected by it; and (2) whether the equities of the case were ¶1 This is one in a series of appeals stemming balanced more in favor of Plaintiffs or Defen- from a shareholders’ derivative action. This dants.4 appeal concerns the trial court’s denial of a motion to cancel notices of lis pendens. We ¶6 On remand, evidence was introduced affirm in part, reverse in part, and remand with which indicated that Defendants owned 60% directions. of the stock of the corporation that owned the Woodward Hotel, and, therefore, could convey BACKGROUND the hotel property. However, conflicting evi- ¶2 Plaintiffs are investors in a plan to pur- dence was presented regarding whether Defen- chase and renovate “distressed” hotels across dants had the power to convey or encumber the country. Defendants are Robert Slater, the the Cocoa Beach Hotel. Conflicting evidence creator and organizer of the plan, his wife Syl- also was presented regarding whether the fail- via Slater, and Southern Hospitality, Inc., his ure of a proposed $19 million sale of the Cocoa management company. Nominal Defendants/ Beach Hotel was caused by the lis pendens or Appellants (collectively, Hotels) are various by other factors. business entities owning two hotels in Wood- ¶7 The trial court resolved the two issues ward, Oklahoma (Woodward Hotel), and raised by Division I’s opinion in favor of Plain- Cocoa Beach, Florida (Cocoa Beach Hotel). tiffs. In a letter opinion, the trial court con- These two hotels are the only remaining assets cluded that: (1) real property is involved in this of the plan. Defendants are the managing action because Defendants have the power to members or general partners in Hotels, while convey and encumber the real property; and Plaintiffs are minority shareholders or limited (2) the equities are in favor of Plaintiffs. Regard- partners.1 ing the latter finding, the trial court noted that ¶3 In 2007, Plaintiffs filed a shareholders’ a receivership had been necessary due to the derivative action, asserting that Defendants actions of Slater, that “Slater disregarded the had wrongfully diverted more than $5 million Court’s Order appointing a receiver and con- from the hotels over an eight-year period and tinued to be actively involved in the potential had misappropriated the hotels’ assets for per- sale of the Cocoa Beach Hotel,” and that sonal gain. Plaintiffs sought damages, recission “Defendant did not disclose the full details of of hotel management contracts, an accounting, the proposed sale of the Cocoa Beach Hotel the imposition of a constructive trust,2 the when obtaining their [limited partners’] appointment of a receiver, and an injunction approval of the sale (i.e., that $2 million of the preventing further alleged misappropriation, sale proceeds would be utilized to pay off a debt of an unrelated limited partnership which waste, and abuse of remaining assets.3 Defendant Slater guaranteed).” The trial court ¶4 After Plaintiffs filed their petition, they subsequently issued an order denying Defen- filed a notice of lis pendens against the Wood- dants’ motion to cancel the lis pendens notices. ward Hotel property. In May 2008, Defendants Defendants and Hotels appeal. negotiated a sale of the Cocoa Beach Hotel, and STANDARD OF REVIEW Plaintiffs filed a notice of lis pendens against that property. Defendants then moved to can- ¶8 To the extent this appeal involves inter- cel both lis pendens, asserting that Plaintiffs’ pretation of the lis pendens statute, it presents lawsuit did not “involve or affect the real prop- a question of law, and the trial court’s interpre- erty” described in the lis pendens, that the tation is subject to de novo review. See Casey v.
2138 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 Casey, 2005 OK 13, ¶ 7, 109 P.3d 345, 348. How- improperly refused to admit and consider the ever, the trial court’s decision whether to can- Cocoa Beach Hotel partnership agreement. cel the lis pendens must be based on a balanc- ¶12 In their first proposition, Defendants and ing of the equities, and it will be affirmed Hotels note that the purpose of lis pendens is unless its decision is against the weight of the evidence, is contrary to law, or is a clear abuse to give notice of pending title disputes to of discretion. See Rush v. In re Application for potential third-party buyers. They argue that Appointment of Trustee for the Purpose of Securing because Plaintiffs are pursuing a derivative an Oil & Gas Lease, 1995 OK CIV APP 71, ¶ 2, action, Hotels are the real parties in interest, 897 P.2d 1150, 1151. and, since Hotels already own the hotel prop- erty and there is no title dispute involved in the ANALYSIS case, lis pendens notice serves no useful pur- ¶9 Oklahoma’s lis pendens statute is found pose. They rely on Central Allied Profit Sharing at 12 O.S.2001 § 2004.2, and states in relevant Trust v. Bailey, 759 P.2d 849 (Colo. Ct. App. part: 1988), which affirmed the striking of a lis pen- dens notice because the plaintiffs’ underlying A. Upon the filing of a petition, the action lawsuit, if successful, would not affect the title is pending so as to charge third persons to certain partnership property. Defendants with notice of its pendency. While an action also assert that, even if the COCA opinion was is pending, no third person shall acquire an correct in holding that lis pendens is not limit- interest in the subject matter of the suit as ed to title disputes, and even if Plaintiffs’ law- against the prevailing party’s title; except suit against Defendants is successful, the suit that: still does not “involve” or “affect” realty since 1. As to actions in either state or federal Defendants do not own the Cocoa Beach Hotel court involving real property, such notice and have no power to sell or encumber it. shall be effective from and after the time ¶13 There is wide divergence in how various that a notice of pendency of action, identi- jurisdictions define the lis pendens require- fying the case and the court in which it is ment that an action be one involving or affect- pending and giving the legal description of ing real property.5 However, Oklahoma does the land affected by the action, is filed of not narrowly limit the doctrine to disputes record in the office of the county clerk of involving only “title, possession or interest in the county wherein the land is situated[.] property.” Instead, as COCA Division I (Emphasis added.) explained in its opinion in Appeal No. ¶10 As noted by the language emphasized 105,763: above, lis pendens may only be applied in The Court in the present case discharged actions directly involving or affecting real prop- the notice of lis pendens . . . based on its erty. However, even when a lawsuit directly ruling as a matter of law that the doctrine involves or affects realty, the use of lis pendens applied only in disputes as to title, posses- is subject to long-standing equitable principles. sion, or interest in the property. Although See White v. Wensauer, 1985 OK 26, ¶ 9, 702 P.2d some states statutorily have narrowed 15, 18. Thus, in a case where a party moves to application of the doctrine of lis pendens to cancel a lis pendens, as here, a trial court must such disputes, Oklahoma has not done so. balance all the equities in the case to determine Section 2004.2 [of Title 12 of the Oklahoma whether applying the doctrine is harsh or arbi- Statutes] specifies the procedure for filing trary and whether the cancellation of lis pen- the notice as to actions “involving real dens would result in prejudice to the non-peti- property” against ‘the land affected by the tioning party. Id. at ¶ 10, 702 P.2d at 18. action. In the present case, the relief request- ¶11 In the present case, Defendants and ed by the [Plaintiffs] would affect [Defen- Hotels assert three arguments to support their dants’] power to convey or encumber the claim that the trial court’s denial of their real property. Therefore, the real property motion to cancel the lis pendens was error. is arguably involved in the action and First, that Plaintiffs’ lawsuit does not involve affected by it. The trial court did not address or affect “real property” as required by the stat- this question and must do so in order to ute. Second, that the balance of equities in the cancel the lis pendens. (Emphasis added; case favored them. Third, that the trial court footnote omitted.)
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2139 ¶14 While Division I’s opinion found that consents from each of the partners, and obtained Plaintiffs’ action would affect Defendants’ approval from those owning more than 72% of power to sell or encumber the real property, it the partnership. did not find that Defendants had such power. For that reason, it directed the trial court to ¶18 In rebuttal, Plaintiffs assert that Defen- determine on remand whether real property dant Slater executed consents as the sole direc- was involved in the action and affected by it. tor of the Cocoa Beach Hotel Corporation, that After receiving evidence, the trial court con- these consents “permitted him to sell the Cocoa cluded that Defendants had the power to sell Beach Hotel,” that he “could have drafted and or convey the property and, therefore, realty changed these documents at any time,” and was involved in or affected by the action. that Hotels are essentially his alter egos. While Gregory admitted that Slater was the sole ¶15 After review, we agree with the trial director of the Cocoa Beach Hotel, that Slater court’s finding regarding the Woodward Hotel. was authorized by the corporation to unilater- The appellate record proves that the hotel was ally consent to potential sales, and that Slater owned by the Woodward Hotel Corporation, directed him to prepare the corporate consent, that Defendant Robert Slater owned a 60% Gregory clearly stated that the corporate con- interest in the corporation, and that he had the sent did not, and could not, authorize Slater to power to sell the hotel. Thus, the statute autho- sell partnership property. As noted above, rizes the filing of a lis pendens against that Gregory testified that partnership property property, subject to the trial court’s equitable could only be sold with the approval of a inquiry. majority of the partners. ¶16 However, the appellate record also ¶19 In sum, the evidence conclusively estab- proves that Defendants do not own a majority lished that Defendants had no direct power to or controlling interest in the Cocoa Beach Hotel sell the partnership realty. Furthermore, Plain- and do not have the power to sell it. This hotel tiffs presented no evidence that the other con- property is owned by the Cocoa Beach Hotel senting partners’ consents were forged, that Fund Limited Partnership, an Oklahoma lim- they were merely Defendants’ alter egos, or ited partnership consisting of the Cocoa Beach that Slater had a general statement of partner- Hotel Corporation, and others. Although ship authority authorizing him to sell the hotel Defendant Robert Slater owns a majority inter- without partnership approval. Because Plain- est in, and is the sole director of, the corpora- tiffs’ action does not directly involve or affect 6 tion, the corporation has only a minority own- title to the Cocoa Beach Hotel property, the 7 ership in the limited partnership. Importantly, trial court’s denial of Defendants’ motion must the Cocoa Beach Hotel is the only asset owned be reversed.9 by the partnership. Under Oklahoma law, all partners must consent to a sale or disposition ¶20 As noted above, the trial court correctly of all, or substantially all, of a limited partner- ruled that Plaintiffs’ lawsuit involved or affect- ship’s property, see 54 O.S.2001 § 150, and gen- ed the Woodward Hotel. It was, therefore, eral partners, such as the Cocoa Beach Hotel required to balance the equities in ruling upon Corporation, do not have the right to sepa- Defendants’ motion. In White v. Wensauer, 1985 rately dispose of partnership property. See Roby OK 26, ¶¶ 9-10, 702 P.2d 15, 18-19, the Okla- v. Day, 1981 OK 122, 635 P.2d 611. Unless there homa Supreme Court stated: is an agreement otherwise, Defendants, through [T]he trial court must balance the equities to the corporation, only have the power to sell determine whether, in a particular case, the their interest in the partnership, but do not application of the doctrine is harsh or arbi- have the power to sell the partnership realty. trary and whether the cancellation of lis ¶17 Although the limited partnership agree- pendens would result in prejudice to the ment was not admitted into evidence,8 Mitch nonpetitioning party. It is essential that the Gregory, an Oklahoma City attorney, was court, when called upon to act on a motion allowed to testify that the Cocoa Beach Hotel to discharge lis pendens, take testimony to Fund Limited Partnership Agreement autho- ascertain the exact nature and extent of any rizes a sale of the property with the consent of possible prejudice that could result from the only a majority of the partners. Slater’s con- release of notice and, whenever appropri- duct was consistent with this testimony. For ate, safeguard the threatened rights by other example, prior to the failed 2008 sale, he sought available means less drastic in character.
2140 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 ¶21 Here, the trial court clearly conducted a 1. The caption of the trial court order does not list all the plaintiffs, defendants, or nominal defendants, but instead uses the designation careful balancing of the equities. Plaintiffs pre- “et al.” The petition in error purports to list all the parties, as well as a sented evidence that Defendants had previ- number of other nominal defendants not party to this appeal. 2. Plaintiff’s claim for a constructive trust was dismissed prior to ously used the various entities for personal the filing of this appeal. gain, and that they had failed to disclose the 3. A good deal of litigation has followed the filing of the action. For details of the proposed Cocoa Beach Hotel sale example, last year, in appeal No. 106,802, this Court affirmed the trial court’s appointment of a permanent receiver for Hotels. (including a plan to use $2 million to pay off 4. The parties have put different “spins” on the meaning of Divi- another debt). Defendants primarily presented sion I’s opinion. Plaintiffs seek to limit the appeal by excluding issues decided in that opinion, and Hotels assert the trial court failed to fol- evidence that a lis pendens “prejudiced” their low the opinion’s “mandate” on remand. After reviewing the opinion ability to sell the Cocoa Beach property, and, and the record below, we conclude that the arguments raised by Defen- dants and Hotels were not resolved by the opinion, and that the trial inferentially, the Woodward property. The trial court considered and followed the opinion’s directions. court weighed the conflicting evidence, found 5. For example, Ohio courts have held it is not sufficient that the that the lis pendens was necessary to safeguard property be the source from which the plaintiff will be compensated, but that it must be “at the very essence of the controversy between the Plaintiffs’ threatened rights, and determined litigants”; while Florida courts have required the existence of a fair that there were no other less drastic means for nexus between the apparent legal or equitable ownership of the prop- erty and the dispute embodied in the lawsuit. See Levin v. George Fraam doing so. Its decision regarding the Woodward & Sons, Inc., 585 N.E.2d 527, 530 (Ohio Ct. App. 1990); Chiusolo v. Ken- Hotel is not against the weight of the evidence, nedy, 614 So.2d 491, 492 (Fla. 1993); 51 Am. Jur. 2d Lis Pendens §§ 19 & 65 (2000). contrary to law, or a clear abuse of discretion. 6. 5/13/09 Transcript, pp. 135-140. Plaintiff Bock owns a minority interest in the corporation, and Plaintiff Vose has an interest in an ¶22 Finally, Defendants and Hotels assert the entity that is a minority partner in the limited partnership. trial court erred by excluding from evidence 7. In their appellate brief, Defendants assert that, in certain qualify- ing sales of partnership property, after all limited partners have the Cocoa Beach Hotel Partnership Agreement. received a “preferred return,” they may vote up to a 30% share. They concede that they did not timely produce 8. The Limited Partnership agreement was not admitted into evi- the document because of a computer “glitch” dence, but was marked as Court’s Exhibit No. 1. We find that the trial court erred in refusing to admit the partnership agreement, an issue that rendered it unreadable. However, they which we discuss in greater detail below. assert that its admission was relevant and 9. Our holding is consistent with the view expressed in 51 Am Jur. 2d Lis Pendens § 43 (2000): material, and the trial court’s exclusion was Lis pendens is not appropriate in an equitable shareholder’s error. We agree. action against a corporation’s director for a breach of fiduciary duty and interference with contract rights, where the action did ¶23 The limited partnership agreement was not directly affect the title to or right of possession of real prop- erty and where the shareholder did not seek an equitable lien on the best evidence of the Cocoa Beach Hotel the specific property. Corporation’s interest in the Cocoa Beach Lim- 10. In fact, Defendants assert that Plaintiffs had already received a copy of the agreement attached to Defendants’ April 17, 2009, supple- ited Partnership, and Defendants’ power mental brief in support of its motion to cancel. (through the corporation) to sell or encumber the property. Plaintiffs did not demonstrate 2010 OK CIV APP 88 substantial prejudice by its admission, and any MARK SHAPIRO, Petitioner, vs. CITY prejudice to Plaintiffs is clearly outweighed by 10 BEVERAGE CO. LLC, CNA INSURANCE the document’s probative value. Neverthe- GROUP, and THE WORKERS’ less, we have already ruled that the trial court COMPENSATION COURT, Respondents. erred in denying Defendants’ motion to cancel the lis pendens notice on the Cocoa Beach Case No. 107,784. August 10, 2010 Hotel. Therefore, the trial court’s exclusion of PROCEEDING TO REVIEW AN ORDER OF the partnership agreement, even if erroneous, A THREE-JUDGE PANEL OF THE has been rendered harmless. WORKERS’ COMPENSATION COURT CONCLUSION HONORABLE GENE PRIGMORE, ¶24 The trial court’s decision is hereby TRIAL JUDGE affirmed in part as to the Woodward Hotel, SUSTAINED and reversed as to the Cocoa Beach Hotel. This cause is remanded with directions that the David A. Christoffel, THE LAW OFFICES OF motion to cancel lis pendens be granted as to DANIEL M. DAVIS, Oklahoma City, Okla- the Cocoa Beach Hotel. homa, for Petitioner ¶25 AFFIRMED IN PART, REVERSED IN PART, Angela Reinstein, PIERCE COUCH HEN- AND REMANDED WITH DIRECTIONS. DRICKSON BAYSINGER & GREEN, LLP, Oklahoma City, Oklahoma, for Respondents GOODMAN, J., concurs, and RAPP, J., not par- ticipating. JANE P. WISEMAN, CHIEF JUDGE:
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2141 ¶1 Claimant, Mark Shapiro, seeks review of for Cymbalta is related to back injury an order of a three-judge panel of the Workers’ and reasonable and necessary.” Compensation Court affirming the decision of • May 27, 2009: Claimant filed a motion to the trial court finding that his motion to reopen reopen the neck injury claim based on a was barred by the statute of limitations. After change of condition for the worse. review of the record and pertinent law, we find the trial court correctly held that Claimant’s • July 30, 2009: the trial court appointed an motion to reopen his neck claim was untimely. independent medical examiner and Accordingly, we sustain the order of the three- ordered Claimant to undergo a medical judge panel of the Workers’ Compensation examination. Court, which affirmed the decision of the trial ¶3 In an order filed August 25, 2009, the trial court. court denied Claimant’s motion to reopen the FACTS AND PROCEDURAL neck claim finding Claimant’s motion to be BACKGROUND untimely pursuant to the three-year statute of limitations set forth under 85 O.S. Supp. 2009 ¶2 The time line of relevant events that trans- § 43(C). The trial court found that because pired over the past several years is as follows: Claimant’s previous motion to reopen only addressed the back injury and not the neck • May 9, 2000: Claimant filed a Form 3 injury, the statute of limitations as to Claimant’s alleging a cumulative trauma to the neck neck injury was not tolled. Because the last and back with a date of last exposure of order addressing Claimant’s neck injury was March 8, 2000. filed August 7, 2003, the trial court found • November 13, 2000: the trial court deter- Claimant’s motion to reopen the neck injury fell mined Claimant sustained a cumulative outside the three-year statute of limitations. trauma injury to the neck and low back ¶4 Claimant appealed the trial court’s deci- with a date of last exposure of March 8, sion to a three-judge panel, which affirmed the 2000. This decision was later affirmed by trial court’s decision. Claimant now seeks an order of a three-judge panel filed Feb- review in this Court. ruary 22, 2001. STANDARD OF REVIEW • April 24, 2002: the trial court found Claimant sustained 20% permanent par- ¶5 The issue presented is whether the Work- tial disability to his low back and 20% ers’ Compensation Court correctly applied 85 permanent partial disability to his neck. O.S. Supp. 2009 § 43(C). This is a question of law that we review de novo. K-Mart Corp. v. Her- • August 7, 2003: the trial court ordered ring, 2008 OK 75, ¶ 2, 188 P.3d 140, 143. City Beverage Co. LLC (Employer) to ANALYSIS provide Claimant with vocational reha- bilitation “as outlined in Option A as ¶6 Title 85 O.S. Supp. 2009 § 43(C) sets out identified in the report of LDH CONSUL- the statute of limitations for a motion to reopen TANTS.” for a change in condition for the worse: • July 25, 2006: Claimant filed a motion to The jurisdiction of the Court to reopen any reopen the back injury claim based on a cause upon an application based upon a change of condition for the worse. change in condition for the worse shall extend for three (3) years from the date of • February 20, 2007: the trial court found the last order, and unless filed within said Claimant had “sustained a physical period of time, shall be forever barred. An change of condition for the worse to the order denying an application to reopen a LOW BACK” and awarded Claimant claim shall not extend the period of the medical treatment. This decision was time set out herein for reopening the case. later affirmed by an order of a three- judge panel filed on May 24, 2007. In Arrow Tool & Gauge v. Mead, 2000 OK 86, 16 P.3d 1120, the Oklahoma Supreme Court inter- • January 16, 2008: the trial court ordered preted the words “last order” as used in § 43(C). Claimant to submit to a medical exami- The Supreme Court held that an order only nation to determine whether the “need qualifies as a “last order” under § 43(C) “if it
2142 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 substantially affects the range of monetary, medical, The primary goal of statutory construc- or rehabilitative benefits conferrable by the workers’ tion is to ascertain and follow the intention compensation law.” Id. at ¶ 18, 16 P.3d at 1126. of the Legislature. If a statute is plain and The Arrow Court held that an order for a voca- unambiguous and its meaning clear and no tional rehabilitation evaluation qualifies as a occasion exists for the application of rules last order. Id. at ¶ 22, 16 P.3d at 1127. of construction a statute will be accorded ¶7 Claimant asserts that according to Arrow, the meaning expressed by the language the “last order” in this case could be (1) the used. February 20, 2007, order finding Claimant had Lang v. Erlanger Tubular Corp., 2009 OK 17, ¶ 8, sustained a change of condition for the worse 206 P.3d 589, 591 (quoting Wylie v. Chesser, 2007 to the low back which was later affirmed in an OK 81, ¶ 19, 173 P.3d 64, 71). order by a three-judge panel filed May 24, 2007; (2) the January 16, 2008, order ordering ¶12 We find the order filed on August 7, Claimant to submit to a medical examination 2003, is the “last order” within the meaning of to determine whether the “need for Cymbalta § 43(C) because it is the last order addressing is related to back injury and reasonable and issues related to Claimant’s neck injury. To necessary;” or (3) the July 30, 2009, order accept Claimant’s interpretation would render appointing an independent medical examiner the three-year statute of limitations for reopen- to evaluate Claimant and finding: “IT IS FUR- ing a claim on change of condition virtually THER ORDERED that as a result of an alleged meaningless. As Employer points out in its injury to the BACK received on or about appellate brief: MARCH 8, 2000, JOHN S. MAROUK, D.O. shall submit a verified or declared written nar- For example, if there were a case where the rative report containing findings and opinions” claimant alleged injury to the neck, back, as to whether the treating physician’s report both shoulders, both legs and both feet and dated June 8, 2009, is supported by objective timely filed to reopen the back within three medical evidence.1 years and then within three years of that reopen, filed to reopen the neck, and within ¶8 Claimant contends the February 20, 2007, three years of that, filed to reopen the order “is an order which conferred medical shoulders, etc., the matter could go on rights to [Claimant] under the Act.” Claimant indefinitely. then asserts that any of the above-mentioned orders would be sufficient pursuant to the ¶13 Our finding today gives effect to the holding in Arrow to allow him to reopen the Legislature’s intent to place a three-year statu- case for additional medical treatment to the tory limit on a claimant’s ability to reopen a neck. claim based on a change of condition. Because ¶9 Employer responds that the last order the motion to reopen the neck injury was not relating to Claimant’s neck injury is the order filed until May 27, 2009, we find the trial court allowing vocational benefits entered on August correctly concluded that Claimant’s motion to 7, 2003. Because Claimant’s motion to reopen the reopen the neck claim is time-barred. neck claim for change of condition was not filed CONCLUSION until May 27, 2009, Employer contends Claim- ant’s request was clearly barred by § 43(C) and ¶14 The trial court properly concluded that its three-year statute of limitations. Claimant’s motion is barred by the statute of limitations. The three-judge panel correctly ¶10 Although we agree the February 20, affirmed the trial court’s decision. Finding no 2007, order finding a change of condition to the reversible error, we sustain the decision of the back substantially affects medical benefits, it three-judge panel. only substantially affected benefits related to Claimant’s back. The other orders mentioned ¶15 SUSTAINED. above dated May 24, 2007, January 16, 2008, FISCHER, P.J., and BARNES, J., concur. and July 30, 2009, likewise only related to
Claimant’s back injury. 1. We note that Claimant also states in the conclusion of his appel- late brief that the order of “3-18-08” could also be considered the “last ¶11 The Oklahoma Supreme Court has order.” However, we find no order with this date in the appellate emphasized: record.
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2143 2010 OK CIV APP 91 leave from the years 1997 through 2000 suffi- cient to cover his absences from work in later TOM CHENOWETH, Plaintiff/Appellant, vs. CITY OF MIAMI, Defendant/Appellee. years. The City Manager found for Plaintiff, reasoning the collective bargaining agreement Case No. 107,567. August 26, 2010 did not define “excessive” use of leave. APPEAL FROM THE DISTRICT COURT OF ¶5 In 2006, Plaintiff received an “I” (unsatis- OTTAWA COUNTY, OKLAHOMA factory) on his employment evaluation of HONORABLE ROBERT G. HANEY, JUDGE “Dependability.” The evaluation specifically noted Plaintiff’s “[s]ickness has caused him to AFFIRMED miss many shifts or to go home ill from work,” Jot Hartley, Terry D. Allen, The Hartley Law “[i]mprovement is needed in his attitude Firm, P.L.L.C., Jay, Oklahoma, for Appellant, toward details at work and the use of sick time,” and his use of more sick leave than he Matthew B. Free, Bob D. James, Thomas A. earned in the current year. After a meeting with LeBlanc, Best & Sharp, Tulsa, Oklahoma, for Plaintiff in January 2007, the Fire Chief advised Appellee. Plaintiff, in writing, he would be “re-evaluat- Larry Joplin, Presiding Judge: ed” at his next anniversary date, and he had eleven months to improve his attitude and ¶1 Plaintiff/Appellant Tom Chenoweth dependability. (Plaintiff) seeks review of the trial court’s order denying his motion to reconsider after ¶6 On September 27, 2007, Plaintiff filed his the trial court granted the motion for summary Notice of Claim with City pursuant to the judgment of Defendant/Appellee City of Oklahoma Governmental Tort Claims Act, 51 Miami (City) on Plaintiff’s claim to damages O.S. §151, et seq. Plaintiff alleged that, even for alleged negligent infliction of emotional though he had violated no specific term of the distress and retaliation. In this accelerated collective bargaining agreement, he had never- review proceeding, Plaintiff challenges the theless received a low “dependability” score trial court’s order as affected by errors of both which “hampered his ability to receive any law and fact. promotion or raise,” and for which he sought $150,000.00 in economic damages, physical ¶2 Plaintiff worked for City as a fireman. hurt, trauma, pain and suffering of the mind Employment evaluations in 2001, 2003 and and body, as well as emotional and mental 2004 rated Plaintiff “2,” “needs improvement” trauma. The claim was denied. in the area of “Dependability (Doesn’t miss work regularly)” on account of his high rate of ¶7 In January 2008, Plaintiff commenced the absences from work on sick leave. In 2004, the instant action. Plaintiff first alleged City’s Fire Chief issued, then rescinded, a written employees, “in reckless disregard of causing warning to Plaintiff concerning alleged “exces- severe emotional distress and injury to Plain- sive” use of sick leave. tiff,” “wrongfully repeat[ed] and publish[ed] false and scandalous personal information ¶3 In 2005, Plaintiff again received a “2,” relating to the enjoyment of certain rights that “needs improvement” in the area of “Depend- Plaintiff was entitled to under the Collective ability (Doesn’t miss work regularly)” on Bargaining Agreement,” thereby “creating and account of a continued pattern of absenteeism permitting to exist an offensive, unbearable on sick leave. The Fire Chief issued a written and hostile environment toward Plaintiff and warning to Plaintiff concerning excessive use by reprimands and poor evaluations for Plain- of sick leave. tiff’s proper use of sick leave.” Plaintiff sec- ¶4 Plaintiff then initiated a grievance under ondly alleged that City “did retaliate against the collective bargaining procedures of City’s the Plaintiff . . . for his use of sick leave by rep- contract with firefighters, seeking removal of rimanding him . . . , failing to promote him or the written warning from his employment provide a pay raise, giving poor evaluations, record. Before the City Manager, City intro- and continually transferring him to different duced evidence demonstrating Plaintiff’s use shifts.” On account of City’s “infliction of emo- of all sick leave earned during the years 2001 tional distress” and “retaliation,” Plaintiff con- through 2005. Plaintiff introduced evidence sequently sought an award of actual and puni- showing earned, accrued, but unused sick tive damages.
2144 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 ¶8 City filed a motion for summary judg- distress was severe.” Ishmael v. Andrew, 2006 ment. City first argued that, to the extent OK CIV APP 82, ¶19, 137 P.3d 1271, 1277; Plaintiff’s emotional distress claim centered on Breeden v. League Services Corp., 1978 OK 27, ¶7, allegations of “bad faith” acts by City’s employ- 575 P.2d 1374, 1376. Whether an actor’s con- ees, outside the scope of their employment, the duct is so extreme and outrageous as to permit OGTCA specifically shielded City from liabili- recovery constitutes a question of law. Breeden, ty. 51 O.S. Supp. 2007 §152(11).1 Plaintiff sec- 1978 OK 27, ¶12, 575 P.2d at 1377-1378. ondly argued Oklahoma law did not recognize ¶13 However, “unlike a cause of action for a claim for “retaliation.” intentional infliction of emotional distress, neg- ¶9 Over Plaintiff’s objection, the trial court ligent infliction of emotional distress is not an agreed with City. Plaintiff filed a motion to independent tort.” Kraszewski v. Baptist Medical reconsider and motion to vacate, which the Center of Oklahoma, Inc., 1996 OK 141, ¶1, 916 trial court denied. Plaintiff appeals, and the P.2d 241, 243, fn. 1. (Citation omitted.) That is matter stands submitted on the trial court to say, “[u]nder Oklahoma’s jurisprudence the record.2 negligent causing of emotional distress is not an independent tort, but is in effect the tort of ¶10 “Summary relief issues stand before us negligence.” Lockhart v. Loosen, 1997 OK 103, for de novo review[,] [and] [a]ll facts and infer- ¶16, 943 P.2d 1074, 1081. ences must be viewed in the light most favor- able to the non-movant.” Reeds v. Walker, 2006 ¶14 Consequently, “before damages for men- OK 43, ¶9, 157 P.3d 100, 106-107. (Footnotes tal suffering may be collected, the plaintiff omitted.) “Summary judgment will be affirmed must establish: a duty on the part of the defen- only if the appellate court determines that there dant to protect the plaintiff from injury; a fail- is no dispute as to any material fact and that the ure of the defendant to perform the duty; and moving party is entitled to judgment as a matter an injury to the plaintiff resulting from the fail- of law.” Lowery v. Echostar Satellite Corp., 2007 ure.” Kraszewski, 1996 OK 141, ¶1, 916 P.2d at OK 38, ¶11, 160 P.3d 959, 963-964. (Citations 243, fn. 1. (Citation omitted.) The liability of the omitted.) “Summary judgment will be reversed State or its subdivisions is entirely dependent if the appellate court determines that reasonable on such a showing because: men might reach different conclusions from the The GTCA defines a “tort” as a legal undisputed material facts.” Id. wrong involving a violation of a duty ¶11 However, “[a] trial court’s denial of a imposed by general law or otherwise result- motion for new trial is reviewed for abuse of ing in a loss as the proximate result of an act discretion.” Reeds v. Walker, 2006 OK 43, ¶9, 157 or omission of a political subdivision or P.3d 100, 106-107. (Footnotes omitted.) Likewise, employee acting within the scope of employ- “[t]he correct standard of review employed ment. “Scope of employment” is defined as upon a motion to vacate is whether sound dis- performance by an employee acting in good cretion was exercised to vacate [or deny vaca- faith within the duties of his office or tion of] the earlier decision.” Kordis v. Kordis, employment or of tasks lawfully assigned 2001 OK 99, ¶ 6, 37 P.3d 866, 869. So, “[w]here, by a competent authority. Except in cases as here, our assessment of the trial court’s exer- where only one reasonable conclusion can cise of discretion in denying defendants a new be drawn, the question of whether an trial rests on the propriety of the underlying employee has acted within the scope of grant of summary judgment, the abuse-of-dis- employment at any given time is a question cretion question is settled by our de novo review for the trier of fact. An employee of a politi- of the summary adjudication’s correctness.” cal subdivision is relieved from private lia- Reeds, 2006 OK 43, ¶9, 157 P.3d at 106-107. bility for tortious conduct committed within (Emphasis original.) (Footnotes omitted.) the scope of employment. A political subdi- vision is relieved from liability for tortious ¶12 “To establish a prima facie case of inten- conduct committed by employees outside tional infliction of emotional distress, a plain- the scope of employment. tiff must demonstrate: (1) that the tortfeasor acted intentionally or recklessly; (2) that the Tuffy’s, Inc. v. City of Oklahoma City, 2009 OK 4, tortfeasor’s conduct was extreme and outra- ¶8, 212 P.3d 1158, 1163. Whether one owes a geous; (3) that plaintiff actually experienced duty to another also presents a question of law. emotional distress; and (4) that the emotional See, e.g., Miller v. David Grace, Inc., 2009 OK 49,
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2145 ¶11, 212 P.3d 1223, 1227. (Citations omitted.) So limited by the provisions of a collective bargain- guided, we hold Plaintiff’s claim for emotional ing agreement or by other statutory provisions.” distress must fail. 11 O.S. Supp. 2004 §51-205. Consequently, the collective bargaining agreement defines the ¶15 First, it cannot be seriously disputed that terms and conditions of Plaintiff’s employment, the evaluations of Plaintiff’s job performance and the rights and duties of the parties, includ- were administered by City employees acting ing the rights of City to evaluate the perfor- within the scope of their employment duties, mance of its employees. See, e.g., City of Mustang and a claim for intentional infliction of emo- v. Fraternal Order of Police, Lodge 163, 2008 OK tional distress requires proof of some inten- CIV APP 51, 184 P.3d 1102. But, the parties’ col- tional or reckless, extreme and outrageous lective bargaining agreement does not appear in conduct, equivalent, in our minds, to bad faith. the record before us. If, in rating Plaintiff’s “dependability” and absenteeism, the City employees were acting in ¶18 Lastly, Plaintiff cites, and we find, no good faith, the City is insulated from liability authority supporting a damages claim for by the OGTCA, §152(9) and (11). See, Tuffy’s, “retaliation.” Whether Plaintiff is entitled to a Inc., 2009 OK 4, ¶12-14, 212 P.3d at 1164-1165. promotion or pay raise necessarily depends on See also, Fehring v. State Ins. Fund, 2001 OK 11, the governing provisions of the collective bar- ¶23, 19 P.3d 276, 2833; McMullen v. City of Del gaining agreement, and, we assume, consider- City, 920 P.2d 528, 530.4 On the other hand, if, in ation of his job performance. As we have rating Plaintiff’s “dependability” and absen- observed, City possesses an interest in its fire- teeism, the City employees were acting in bad fighters’ ability to appear and fulfill the duties faith, they were acting outside the scope of of their assigned shifts, and impairment of that their employment, and City bears no liability interest by chronically absent employees. for the employees’ acts. ¶19 We therefore hold the trial court did not ¶16 Second, we cannot say, as a matter of err in denying the motion for new trial/recon- law, the statements chastising Plaintiff for his sideration of Plaintiff. The order of the trial use of sick leave and absenteeism were so court is AFFIRMED. extreme and outrageous as to permit recovery BELL, V.C.J., and MITCHELL, J., concur. in this case. City surely has an important inter- est in maintaining an adequately staffed fire 1. “’Scope of employment’ means performance by an employee act- department, and chronic absenteeism, even if ing in good faith within the duties of the employee’s office or employ- ment or of tasks lawfully assigned by a competent authority . . . .” for a valid reason, surely impacts City’s ability 2. See, Rule 13(h), Rules for District Courts, 12 O.S. 2001, Ch. 2, to insure the fire department has, on every App.; Ok.S.Ct.R. 1.36, 12 O.S. 2001, Ch. 15, App. shift, an adequate number of firefighters to 3. “[W]hen, for viability, the tort cause of action sued upon requires proof of an element that necessarily excludes good faith conduct on the handle any contingency. part of governmental employees, there can be no liability against the governmental entity in a GTCA-based suit.” ¶17 Third, Plaintiff has identified, and we 4. “In Parker v. City of Midwest City, 850 P.2d 1065 (Okla.1993), the discern, no duty breached by City as to support court described a conundrum facing anyone who sues a municipality in Oklahoma for malicious prosecution, which must put an end to any a claim for negligently inflicted emotional dis- such claim pressed against a governmental entity covered by the Gov- tress. City is granted broad discretion to “[d]irect ernmental Tort Claims Act. To sue any statutory governmental entity in tort, the plaintiff must prove he was harmed by an employee acting the work of, hire, promote, assign, transfer, within the scope of his employment. To prove a claim for malicious demote, suspend, discharge or terminate munic- prosecution, one would have to show that the tortfeasor acted mali- ciously and without probable cause. But, as the court noted, a govern- ipal employees; [d]etermine qualifications for mental employee only acts within the scope of his employment when employment and the nature and content of per- he acts in good faith. Therefore, a plaintiff could not possibly hold a governmental entity liable for malicious prosecution, because the only sonnel examinations; and [t]ake actions as may way to prevail on such a claim would be to present evidence which be necessary to carry out the mission of the necessarily took the bad actors outside the scope of their employ- municipal employer in emergencies,” “[u]nless ment.” (Emphasis original.)
2146 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 THE 2010 OKLAHOMA CRIMINAL DEFENSE LAWYERS ASSOCIATION AWARDS FOR EXCELLENCE IN CRIMINAL DEFENSE
Each year your peers in the practice of criminal defense select three of their own to receive the most prestigious awards for excellence in criminal defense achievements in Oklahoma. These awards are the only statewide awards that are nominated and selected by attorneys that practice criminal defense in Oklahoma. The awards are as follows: The Clarence Darrow Award Clarence Darrow was born in Ohio in 1857. After being admitted to the bar in 1878, he became a small town lawyer for nine years. During WWI he defended anti-war activists and was critical of The Espionage Act that was used to stifle anti-war activities. You need only mention the names of his famous cases to realize his impact on criminal defense; the Scopes Monkey Trial, the Scottsboro 9 and the Leopold-Loeb Murder Trials. A 1936 FBI memo to Clyde Tolson, aide-de-camp to J. Edgar Hoover, gave Mr. Hoover some quotes that Clarence Darrow had made in an article entitled Attorney for the Defendant. It was suggested that Mr. Hoover could use these quotes in speeches to point out how unscrupulous criminal lawyers stimulate disrespect for law and influ- ence crime conditions. The award recognizes the efforts of an individual who has, during the year, exemplified the zealous criminal defense advocacy that befits the namesake of the award "Clarence Darrow". It is in the deeds and spirit of Clarence Darrow that this award is given each year for the zealous criminal defense advocacy by an individual attorney. The only qualification requirement is that the event(s) upon which the nomination is based must have taken place during the current year. The Lord Thomas Erskine Award Lord Erskine was a Scotsman, the third son of the 10th Earl of Buchan, educated at Edinburgh and Cam- bridge and called to the bar in 1778. He was a strong advocate and defender of popular liberties and con- stitutional rights. His defense of Thomas Paine cost him his post of attorney general to the Prince of Wales. The award is given to honor a member of the criminal defense bar who has over the years steadfastly placed the preservation of personal liberties over his or her own personal gain or reputation. The award is a cumulative year award and is not limited to any particular activities in any given year. The Thurgood Marshall Appellate Advocacy Award Thurgood Marshall, the grandson of a slave, was born in 1908 in Maryland. In 1930, he was denied admis- sion to the University of Maryland Law School due to the fact mat he was black. This event was to direct his future professional life. In 1934, he began his association with the NAACP and dismantled school segregation in his 1954 victory of Brown vs. Board of Education of Topeka. He later desegregated graduate schools with his victory in Mclaurin vs. Oklahoma State Regents. As a Justice for the Court of Appeals for the 2nd Circuit, he made 112 rulings that were all upheld before the United States Supreme Court. As Solicitor General for the United States, he won 14 of 19 cases argued before the United States Supreme Court. In 1967, Thurgood Marshall was the first African American appointed to the United States Supreme Court. He was often the lone voice of dissent against the death penalty and always spoke for voiceless Americans in his opinions. He died in 1993. The only qualification for the awards is that the nominee must be the appellate attorney of record in the decision that formed the basis of the nomination. However, there is no requirement that the decision must have occurred within the current year. Please submit written nominations and the reasons therefore to: BY MAIL: OCDLA, P.O. Box 2272, Oklahoma City, OK 73101 FAX TO: (405) 239-2595 EMAIL TO: [email protected] The deadline is November 5, 2010. The awards will be announced prior to the OBA Convention and awarded at the OCDLA Annual Meeting on November 18, 2010 at 1:30 p.m. You do not have to be a member of OCDLA to nominate an individual.
Awards not received by November 5, 2010 at the OCDLA PO Box or fax # will not be considered.
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2147 OBA/CLE Annual Meeting 2010 Crowne Plaza Hotel, Tulsa November 17, 2010 DAY ONE Family Law Criminal Law How Good Lawyers Nuts and Bolts Survive Bad Times
Promenade A Promenade B Promenade C Promenade D
WEDNESDAY Program Planner/ Program Planner/ Program Planner/ Program Planner/ Registration Moderator Moderator Moderator Moderator 8 - 9 a.m. Lori Pirraglia Ben Brown Jim Calloway Collin Walke Charles Sifers
Session 1 Client Intake: Immigration & 50 Tips for Administrative Law 9 - 9:50 a.m. Starting Out on the Criminal Law: Tough Times Trials: We Aren’t in Right Foot/Making A Practical Explanation Kansas Anymore Good Client Choices in Light of Jim Calloway Padilla v. Kentucky Gary Payne Jon Ford Joan Lopez Campbell Cooke
Temporary Order The Practical & Advance Marketing on a Get Your Ethics! Hearing: Exhibits Use of the Science of Budget (ethics) Session 2 Needed and Preparing Eyewitness Identification Mark A. Robertson Gina Hendryx 10 - 10:50 a.m. Your Clients in the Courtroom PART I Phil Tucker Professor Gary Wells Ph.D.
Session 3 Finding Expert The Practical & Advance The Thrifty Lawyer Your Solo 11 - 11:50 a.m. Witnesses - Business Use of the Science of Shopping List Valuators and Mental Eyewitness Identification L. Michele Nelson Health Professionals in the Courtroom Jim Calloway PART 2 TBD Professor Gary Wells Ph.D.
12-2 p.m. LUNCH (On your own)
Session 4 Dissolution Criminal Law Free, Cheap and Easy Your Job as a 2 -2:50 p.m. Depositions: Taking Motions Practice Technology Tools Criminal Law and Defending Attorney TBD Jim Calloway Donelle Ratheal Garvin Isaacs
2148 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 OBA/CLE Annual Meeting 2010
Family Law Criminal Law How Good Lawyers Nuts and Bolts cont’d Survive Bad Times
Session 5 Trial Exhibits and Representing Persons Your Law Firm Bankrupty 3 - 3:50 p.m. Witness: Choosing Charged with Driving Finances Chapter 7: The Ins and Preparation Under the Influence and Outs TBD Kimberly Hays Josh D. Lee Jennifer Kirkpatrick Charles Sifers
Session 6 The End/Beginning: Working with Cutting Costs & Coralling Mastering the Art Drafting the Decree/ the Media Clients without of the Deposition 4 - 4:50 p.m. Pre-Nups for Compromising Ethics New Beginnings Moderator (ethics) Ronald Walker Doug Dodd Bill LaSorsa Gina Hendryx Panel Travis Pickens TBD
4:50 p.m. ADJOURN
November 18, 2010 DAY TWO THURSDAY Topic Program Moderator: Registration Judge Thomas C. Gillert, District Judge, Tulsa 8:30 - 9 a.m. 9 a.m. Picking Cotton: Our Speakers: Memoir of Injustice and Jennifer Thompson-Cannino, Salem, NC Redemption Ronald Cotton, Mebane, NC
9:50 a.m. The Science of Speaker: Eyewitness Identification Gary D. Wells, Ph.D., Professor of Psychology, Iowa State University, Ames
10:40 a.m. Break
10:50-11:50 Eyewitness Identification Panelists: a.m. in Oklahoma Michael Huff, Tulsa Police Department, Homicide Division, Tulsa Douglas E. Drummond, Tulsa County First Assistant District Attorney, Tulsa Stephen Kunzweiler, Assistant District Attorney, Tulsa Jennifer Thompson-Cannino Ronald Cotton Gary Wells, Ph.D.
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2149 House of Delegates
Thank you to the County Bar Presidents of: Adair, Alfalfa, Beaver, Beckham, Blaine, Bryan, In accordance with the Bylaws of the Okla- Canadian, Carter, Cherokee, Choctaw, Cleve- homa Bar Association (5 OS, Ch. 1, App. 2), land**, Coal, Comanche, Cotton, Creek, Custer, “The House of Delegates shall be composed of Delaware, Dewey, Ellis, Garfield, Garvin, Grady, one delegate or alternate from each County of Grant, Greer, Harper, Hughes, Jackson, Jefferson, the State, who shall be an active or senior mem- Johnston, Kay, Kingfisher, Kiowa, Logan, Love, ber of the Bar of such County, as certified by the Major, Marshall, Mayes, McClain, McCurtain, Executive Director at the opening of the annual McIntosh, Murray, Muskogee, Okfuskee, Okla- meeting; providing that each County where the homa, Osage, Ottawa**, Payne, Pittsburg, Ponto- active or senior resident members of the Bar toc, Pottawatomie, Pushmataha, Rogers, Roger exceed fifty shall be entitled to one additional Mills, Seminole, Sequoyah, Texas, Tulsa, Wagoner, delegate or alternate for each additional fifty Washington, Washita, Woods and Woodward active or senior members or major fraction counties for submitting your delegate and alter- thereof. In the absence of the elected delegate(s), nate selections for the upcoming OBA Annual the alternate(s) shall be certified to vote in the Meeting. (**Reported, awaiting election) stead of the delegate. In no event shall any County elect more than thirty (30) members to Listed below are the counties that have not the House of Delegates.” sent their delegate and alternate selections to the offices of the Oklahoma Bar Association. “A member shall be deemed to be a resident, Please help us by sending the names of your … of the County in which is located his or her delegates and alternates now. In order to have mailing address for the Journal of the Associa- your delegates/alternates certified, mail or tion.” fax delegate certifications to OBA Executive Director John Morris Williams, P.O. Box 53036, Oklahoma City, OK 73152-3036, or Fax: (405) 416-7001. Atoka Lincoln Caddo Noble Cimarron Nowata Craig Okmulgee Harmon Pawnee Haskell Stephens Latimer Tillman LeFlore
2150 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 2010 Registration Form Please complete a separate form for each registrant. Name ______E-mail ______Badge Name (if different from roster) ______Bar No. ______Address ______City ______State ______Zip ______Phone ______Name of Non-Attorney Guest ______Please change my OBA roster information to the information above. q Yes q No Check all that apply: q Judiciary q OBF Fellow q OBF Past President q OBA Past President q YLD Officerq YLD Board Member q YLD Past President q Board of Bar Examiner q 2010 OBA Award Winner q Delegate q Alternate q County Bar President: County ______q YES! Register me for the 2010 Annual Meeting, November 17, 18 & 19, in Tulsa. Events will be held at the Crowne Plaza Hotel. Registration fee includes continental breakfast in hospitality area, President’s Recep- tion ticket(s), convention gift, Vendors Expo, Music through the Years and Viva Las Vegas Casino Night. q MEMBER: q $50 through Nov. 3; $75 after Nov. 3...... $ ______q NEW MEMBER (Admitted after Jan. 1, 2010): q Free through Nov. 3; $15 after Nov. 3...... $ ______q LAW STUDENT DIV. q $25 through Nov. 3; $35 after Nov. 3...... $ ______I will be attending/participating in the following ticketed events in addition to my registration fee for Annual Meeting: q WED. & THURS.: CLE Multitrack ( ___ [0 or 1] ticket @ $150 through Nov. 3; $175 after Nov. 3; and Plenary $50 for new members through Nov. 3, $75 after Nov. 3) ...... $ ______q WEDNESDAY: CLE Multitrack only ($125/$150)...... $ ______q THURSDAY: CLE Plenary only ( ___ [0 or 1] ticket @ $75 through Nov. 3; $100 after Nov. 3; $25 for new members through Nov. 3, $50 after Nov. 3)...... $ ______q THURSDAY: Annual Luncheon ( ___ number of tickets @ $30 each)...... $ ______q FRIDAY: President’s Breakfast ( ___ number of tickets @ $20 each)...... $ ______q Please check here, if under the Americans with Disabilities Act you require specific aids or services during your visit to the OBA Annual Meeting. q Audio q Visual q Mobile (Attach a written description of your needs.) I will be attending the following ticketed events that do NOT require Annual Meeting registration: q WEDNESDAY: Law School Luncheon – (check one) q OCU q OU q TU ( ___ number of tickets @ $30 each...... $ ______TOTAL $ ______I will be attending the free event(s) below that do(es) NOT require Annual Meeting registration: q Lives in Balance: Lawyers Helping Lawyers PAYMENT OPTIONS: q Incarceration of Women in Oklahoma q Check enclosed: Payable to Okla. Bar Association THREE WAYS TO REGISTER Credit card: q VISA q Mastercard q Discover q American Express n MAIL this registration form with payment Card #______or credit card info to:
OBA Annual Meeting Credit Card CVV/CVC # (on back of card)______P.O. Box 53036 Okla. City, OK 73152 Exp. Date______n FAX this registration form with credit card Authorized Signature information to: (405) 416-7092. ______n ONLINE at www.okbar.org HOTEL ACCOMMODATIONS: n CANCELLATION POLICY Full refunds Fees do not include hotel accommodations. For reservations contact: Crowne Plaza will be given through Nov. 10. No Tulsa Hotel at (800) 227-6963. Call by Oct. 26 and mention hotel code: Oklahoma refunds will be issued after that date. Bar Association 2010 Convention for a special room rate of $105 per night. For hos- pitality suites, contact Craig Combs at (405) 416-7040 or e-mail: [email protected].
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2151 OBA Resolutions The following resolutions will be submitted to the able order to the appellant within three (3) days, House of Delegates at the 106th Oklahoma Bar exclusive of weekends and holidays, after the Association Annual Meeting at 10 a.m. Friday, filing of the judgment, decree, or appealable Nov. 19, 2010, at the Crowne Plaza Hotel in Tulsa. order, the petition in error may be filed within thirty (30) days after the earliest date on which Resolutions No. Three and No. Four will be the court records show that a copy of the judg- published in the Oct. 16 issue of the Oklahoma ment, decree, or appealable order was mailed to Bar Journal. served upon the appellant. RESOLUTION NO. FIVE: B. The filing of the petition in error may be CONFORMING STATUTORY accomplished either by delivery or mailing by certified or first-class mail, postage prepaid, to LANGUAGE REGARDING the Clerk of the Supreme Court. The date of SERVICE OF JUDGMENTS, filing or the date of mailing, as shown by the DECREES OR APPEALABLE postmark affixed by the post office or other proof from the post office of the date of mail- ORDERS ing, shall constitute the date of filing of the BE IT RESOLVED by the House of Delegates petition in error. If there is no proof from the of the Oklahoma Bar Association that the Asso- post office of the date of mailing, the date of ciation adopt, as part of its legislative program, receipt by the Clerk of the Supreme Court shall as published in The Oklahoma Bar Journal and constitute the date of filing of the petition in posted on the OBA website at www.okbar.org, error. proposed legislation amending 12 O.S. Supp. C. The Supreme Court shall provide by rule, 2002, Section 990A, Appeal to Supreme Court of which shall have the force of statute, and be in Oklahoma - Filing of Petition - Rules - Procedure furtherance of this method of appeal: – Dismissal. (Requires 60% affirmative vote for pas- sage. OBA Bylaws Art. VIII Sec. 5) (Submitted by 1. For the filing of cross-appeals; the Civil Procedure Committee. Adoption recom- 2. The procedure to be followed by the mended by the OBA Board of Governors.) trial courts or tribunals in the preparation and Section 1. AMENDATORY. 12 O.S. Supp. 2002, authentication of transcripts and records in Section 990A, is amended to read as follows: cases appealed under this act; and A. An appeal to the Supreme Court of Okla- 3. The procedure to be followed for the homa, if taken, must be commenced by filing a completion and submission of the appeal taken petition in error with the Clerk of the Supreme hereunder. Court of Oklahoma within thirty (30) days D. In all cases the record on appeal shall be from the date a judgment, decree, or appeal- complete and ready for filing in the Supreme able order prepared in conformance with Sec- Court within the time prescribed by rule. tion 696.3 of this title is filed with the clerk of the trial court. If the appellant did not prepare E. Except for the filing of a petition in error as the judgment, decree, or appealable order, and provided herein, all steps in perfecting an Section 696.2 of this title required a copy of the appeal are not jurisdictional. judgment, decree, or appealable order to be F. 1. If a petition in error is filed before the mailed to served upon the appellant, and the time prescribed in this section, it shall be dis- court records do not reflect the mailing service missed as premature; however, if the time to of a copy of the judgment, decree, or appeal-
2152 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 commence the appeal accrues before the appeal RESOLUTION NO. SIX: is dismissed, the appellant may file a supple- mental petition in error, without the payment CONFORMING RULE of any additional costs. Such supplemental REGARDING SERVICE OF petition in error shall state when the time for JUDGMENTS, DECREES OR commencing the appeal began and shall set out all matters which have occurred since the filing APPEALABLE ORDERS of the original petition in error and which BE IT RESOLVED by the House of Delegates should be included in a timely petition in error. of the Oklahoma Bar Association that the Asso- When a proper supplemental petition in error ciation adopt, as part of its legislative program, is filed, the appeal shall not be dismissed on as published in The Oklahoma Bar Journal and the ground that it was premature. posted on the OBA website at www.okbar.org, 2. If an appeal is dismissed on the ground proposed amendments to Oklahoma Supreme that it was premature, the appellant may file a Court Rule 1.21 relating to computation of time new petition in error within the time prescribed for commencement of an appeal. (Requires 60% in this section for filing petitions in error or affirmative vote for passage. OBA Bylaws Art. VIII within thirty (30) days after notice is mailed to Sec. 5) (Submitted by the Civil Procedure Commit- the parties which states that the appeal was tee. Adoption recommended by the OBA Board dismissed on the ground that it was premature, of Governors.) whichever date is later. A notice that an appeal was dismissed on the ground that it was pre- OKLAHOMA SUPREME COURT RULES mature shall include the date of mailing and Rules 1.1 through 1.20 – No changes. the ground for dismissal. Rule 1.21. Computation of time for com- G. 1. No designation of record shall be mencement of appeal accepted by the district court clerk for filing unless it contains one of the following: (a) District Court Appeals. An appeal from the district court may be commenced by filing a. where a transcript is designated: A a petition in error with the Clerk of the Supreme signed acknowledgment from the court report- Court within thirty days from the date the er who reported evidence in the case indicating receipt of the request for transcript, the date judgment, decree, or appealable order pre- received, and the amount of deposit received, pared in conformance with 12 O.S.2001 § 696.3 if applicable, in substantially the following was filed with the clerk of the district court. 12 form: I, ______, court reporter for the above O.S.2001 § 990A. The date of filing of a judg- styled case, do hereby acknowledge this request ment, decree or appealable order with the clerk for transcript on this ____ day of____, 20__, of the district court shall be presumed to be the and have received a deposit in the sum of $___ date of the district court clerk’s file stamp _. , or thereon. b. where a transcript is not designat- If the appellant did not prepare the judg- ed: A signed statement by the attorney prepar- ment, decree, or appealable order, and Section ing the designation of record stating that a 696.2 of this title required a copy of the judg- transcript has not been ordered and a brief ment, decree, or appealable order to be mailed explanation why, in substantially the following to served upon the appellant, and the court form: I, ______, attorney for the appellant, records do not reflect the mailing service of a hereby state that I have not ordered a transcript copy of the judgment, decree, or appealable because: order to the appellant within three (3) days, (1) a transcript is not necessary for exclusive of weekends and holidays, after the this appeal, or filing of the judgment, decree, or appealable order, the petition in error may be filed within (2) no stenographic reporting was thirty (30) days after the earliest date on which made. the court records show that a copy of the judg- 2. This section shall not apply to counter- ment, decree, or appealable order was mailed designations of record filed by appellees. to served upon the appellant. 12 O.S.2001 § 990A. See Tidemark Exploration, Inc. v. Good, 1998 OK 67, 967 P.2d 1194. The service shall be
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2153 done in the manner provided in 12 O.S. § 2005 taking of appeals in workers’ compensation for the service of papers. 12 O.S. § 696.2(B). cases shall be governed by the provisions of Title 85 of the Oklahoma Statutes. Those provi- For cross or multiple appeals Rule 1.27 is sions in 12 O.S.2001 §§ 696.2, 696.3 do not applicable. The interval allowed for filing a apply to orders of the Workers’ Compensation petition in error may not be extended by either Court. 12 O.S.2001 § 696.2(E). the district court or the Supreme Court. (e) Contempt Appeals and Juvenile Delin- The times to appeal final orders of tribunals quency Appeals. other than the district court (for example, Cor- poration Commission, Tax Commission, and (1) An appeal or habeas corpus proceeding to Court of Tax Review) are governed by the spe- review a sentence imposed for contempt of cific statutory authority for such appeals, court occurring in a civil action or proceeding except when these Rules specifically authorize shall be brought in the Supreme Court; an a different period. See Part IV of these Rules. appeal or habeas corpus proceeding to review a sentence imposed for contempt of court (b) Time for Filing Petition In Error in Appeals occurring in a criminal prosecution or a grand to Review Driver’s License Orders and Water jury proceeding shall be brought in the Court Conservancy Decisions. An appeal from a dis- of Criminal Appeals. If a contempt appeal or trict court’s decision falling within the provi- habeas corpus proceeding is not brought in the sions of 47 O.S.2001 § 6-211 Subdiv. (M) (to appellate court designated as proper by this review a person’s right to a driver’s license) rule, the case will be transferred to the proper may be prosecuted in the time provided by the court either on motion or sua sponte. Art. VII, cited section or these rules. See, 47 O.S.2001 § 4, Okla.Const. A contempt appeal shall be con- 6-211 Subdiv. (M), Rules 1.34(c) and 1.10(c)(2), sidered timely brought for review, on transfer and Mowdy v. State ex rel. Dept. of Public to either appellate court, if it was commenced Safety, 1974 OK 83, 524 P.2d 5. in the Supreme Court within the time limit and Appeals under 82 O.S.2001 § 545 and 82 O. in the manner prescribed by these Rules or in S.2001 § 508 (to review a decree establishing or the Court of Criminal Appeals within the time refusing to establish a water conservancy dis- limit and in the manner prescribed by the rules trict) may be prosecuted either within the time of that court. See, 22 O.S. 2001 Ch. 18. and in the manner provided by the cited sec- (2) An appeal or habeas corpus proceeding to tions or in accordance with these rules: but in review a trial court’s decision in a proceeding water conservancy appeals, whether prosecut- for adjudication of juvenile delinquency or for ed in the statutory man-ner or under these certification of a juvenile to be prosecuted as an rules, the party taking the appeal shall give a adult shall be brought in the Court of Criminal cost bond. Letteer v. Conservancy District No. Appeals. An appeal or habeas corpus proceed- 30, 1963 OK 218, 385 P.2d 796, 802. ing to review a trial court’s decision in any (c) County Excise Board Budget Setting other juvenile proceeding shall be brought in Appeals. Any party that takes issue with the the Supreme Court. If a juvenile delinquency actions of the county excise board in its budget appeal or habeas corpus proceeding relative setting process shall seek the proper remedy in thereto is not brought in the appellate court the district court. After evidentiary hearing in designated as proper by this rule, the case will the district court, any party aggrieved by a be transferred to the proper court either on final order approving or disapproving the set- motion or sua sponte. Art. VII, 4, Okla.Const. A ting of a county budget by the excise board juvenile delinquency appeal shall be consid- must file their petition in error within thirty ered timely brought for review, on transfer to (30) days of the filing of a final order. either appellate court, if it was commenced in the Court of Criminal Appeals within the time (d) Proceedings to Review a Decision of the limit and in the manner prescribed by the rules Workers’ Compensation Court. An original of that court or in the Supreme Court within proceeding in the Supreme Court to review an the time limit and in the manner prescribed by order of the Workers’ Compensation Court these Rules. shall be brought in the time and manner as set forth in 85 O.S.2001 3.6 and Rules 1.100--1.106 Rules 1.22 through 1.301 – No changes. of the Rules of the Supreme Court. The prepa- ration of orders, decisions and awards and the
2154 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 RESOLUTION NO. SEVEN: The facts so specified must be treated as estab- lished in the action. An interlocutory summary ELIMINATING STATUTORY judgment may be rendered on liability alone, TEXT THAT CREATES even if there is a genuine issue on the amount CONFLICTING DEADLINES of damages. ON SUMMARY JUDGMENT E. AFFIDAVITS AND FURTHER TESTIMO- PROCEEDINGS NY. A supporting or opposing affidavit must be made on personal knowledge, set out facts BE IT RESOLVED by the House of Delegates that would be admissible in evidence, and of the Oklahoma Bar Association that the Asso- show that the affiant is competent to testify on ciation adopt, as part of its legislative program, the matters stated. If a paper or part of a paper as published in The Oklahoma Bar Journal and is referred to in an affidavit, a sworn or certi- posted on the OBA website at www.okbar.org, fied copy must be attached to or served with proposed legislation amending 12 O.S. Supp. the affidavit. The court may permit an affidavit 2009, Section 2056, Motion for Summary Judg- to be supplemented or opposed by deposi- ment. (Requires 60% affirmative vote for passage. tions, answers to interrogatories, or additional OBA Bylaws Art. VIII Sec. 5) (Submitted by the affidavits. When a motion for summary judg- Civil Procedure Committee. Adoption recommend- ment is properly made and supported, an ed by the OBA Board of Governors.) opposing party may not rely merely on allega- Section 1. AMENDATORY. 12 O.S. Supp. 2009, tions or denials in its own pleading; rather, its Section 2056, is amended to read as follows: response must, by affidavits or as otherwise provided in this rule, set out specific facts A. BY A CLAIMING PARTY. A party claiming showing a genuine issue for trial. If the oppos- relief may move, with or without supporting ing party does not so respond, summary judg- affidavits, for summary judgment on all or part ment should, if appropriate, be entered against of the claim. The motion may be filed at any time that party. after twenty (20) days have passed from com- mencement of the action or the opposing party F. WHEN AFFIDAVITS ARE UNAVAIL- serves a motion for summary judgment. ABLE. If a party opposing the motion shows by affidavit that, for specified reasons, it can- B. BY A DEFENDING PARTY. A party against not present facts essential to justify its opposi- whom relief is sought may move at any time, tion, the court may deny the motion, order a with or without supporting affidavits, for sum- continuance to enable affidavits to be obtained, mary judgment on all or part of the claim. depositions to be taken, or other discovery to C. SERVING THE MOTION AND PRO- be undertaken or issue any other just order. CEEDINGS. The motion must be served at G. AFFIDAVITS SUBMITTED IN BAD least ten (10) days before the day set for the FAITH. If satisfied that an affidavit under this hearing. An opposing party may serve oppos- rule is submitted in bad faith or solely for ing affidavits before the hearing day. The judg- delay, the court must order the submitting ment sought should be rendered if the plead- party to pay the other party the reasonable ings, the discovery and disclosure materials on expenses, including attorney fees, it incurred file, and any affidavits show that there is no as a result. An offending party or attorney may genuine issue as to any material fact and that also be held in contempt. the movant is entitled to judgment as a matter of law. RESOLUTION NO. EIGHT: D. CASE NOT FULLY ADJUDICATED ON CLARIFYING STATUTORY THE MOTION. If summary judgment is not LANGUAGE REGARDING rendered on the whole action, the court should, to the extent practicable, determine what mate- INTERRELATION OF rial facts are not genuinely at issue. The court STATUTES DEALING should so determine by examining the plead- WITH DISMISSAL ings and evidence before it and by interrogat- ing the attorneys. It should then issue an order BE IT RESOLVED by the House of Dele- specifying what facts, including items of dam- gates of the Oklahoma Bar Association that the ages or other relief, are not genuinely at issue. Association adopt, as part of its legislative pro-
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2155 gram, as published in The Oklahoma Bar Journal Section 1. AMENDATORY. 12 O.S. Supp. and posted on the OBA website at www.okbar. 2009, Section 684, is amended to read as follows: org, proposed legislation amending 12 O.S. A. An action may be dismissed by the Supp. 2009, Section 683, Dismissal without Prej- plaintiff without an order of court by filing a udice. (Requires 60% affirmative vote for passage. notice of dismissal at any time before the final OBA Bylaws Art. VIII Sec. 5) (Submitted by the pretrial conference. After the final pretrial Civil Procedure Committee. Adoption recommend- hearing conference, an action may only be dis- ed by the OBA Board of Governors.) missed by agreement of the parties or by the Section 1. AMENDATORY. 12 O.S. Supp. court. Unless otherwise stated in the notice of 2009, Section 683, is amended to read as follows: dismissal or stipulation, the dismissal is with- out prejudice. Except as provided in Section 684 and Sec- tion 684.1 of this title, an action may be dis- B. Except as provided in subsection A of missed, without prejudice to a future action: this section, an action shall not be dismissed at the plaintiff’s request except upon order of the 1. By the plaintiff, before the final submis- court and upon such terms and conditions as sion of the case to the jury, or to the court, the court deems proper. If a counterclaim has where the trial is by the court; been pleaded by a defendant prior to the ser- 2. By the court, where the plaintiff fails to vice upon the defendant of the plaintiff’s appear on the trial; motion to dismiss, the action shall not be dis- missed against the defendant’s objection unless 3. By the court, for the want of necessary the counterclaims can remain pending for parties; independent adjudication by the court. Unless otherwise specified in the order, a dismissal 4. By the court, on the application of some under this subsection is without prejudice. of the defendants, where there are others whom the plaintiff fails to prosecute with dili- C. For failure of the plaintiff to prosecute gence; or to comply with the provisions of this section or any order of court, a defendant may move 5. By the court, for disobedience by the for dismissal of an action or of any claim plaintiff of an order concerning the proceed- against the defendant. ings in the action; and D. The provisions of this section apply to 6. In all other cases, upon the trial of the the dismissal of any counterclaim, cross-claim, action, the decision must be upon the merits. or third-party claim. A voluntary dismissal by the claimant alone pursuant to subsection A of RESOLUTION NO. NINE: this section shall be made before a responsive CLARIFYING STATUTORY pleading is served or, if there is none, before the LANGUAGE REGARDING introduction of evidence at the trial or hearing. INTERRELATION OF STAT- E. If a plaintiff who has once dismissed an UTES DEALING WITH DIS- action in any court commences an action based upon or including the same claim against the MISSAL same defendant, the court may make such BE IT RESOLVED by the House of Dele- order for the payment of costs of the action gates of the Oklahoma Bar Association that the previously dismissed as it may deem proper Association adopt, as part of its legislative pro- and may stay the proceedings in the action gram, as published in The Oklahoma Bar Journal until the plaintiff has complied with the order. and posted on the OBA website at www.okbar. RESOLUTION NO. TEN: org, proposed legislation amending 12 O.S. Supp. 2009, Section 684, Dismissal before Trial EXTENDING WORK-PROD- Commenced without Court Order. (Requires UCT PROTECTION TO MOST 60% affirmative vote for passage. OBA Bylaws Art. COMMUNICATIONS VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA BETWEEN AN ATTORNEY Board of Governors.) AND A TESTIFYING EXPERT
2156 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 BE IT RESOLVED by the House of Dele- (3) an action brought without coun- gates of the Oklahoma Bar Association that the sel by a person in custody of the United States, Association adopt, as part of its legislative pro- a state, or a state subdivision, gram, as published in The Oklahoma Bar Journal (4) an action to enforce or quash an and posted on the OBA website at www.okbar. administrative summons or subpoena, org, proposed legislation amending 12 O.S. Supp. 2010, Section 3226, General Provisions (5) an action by the United States to Governing Discovery. (Requires 60% affirmative recover benefit payments, vote for passage. OBA Bylaws Art. VIII Sec. 5) (6) an action by the United States to (Submitted by the Civil Procedure Committee. collect on a student loan guaranteed by the Adoption recommended by the OBA Board of United States, Governors.) (7) a proceeding ancillary to pro- Section 1. AMENDATORY. 12 O.S. Supp. ceedings in other courts, and 2010, Section 3226, is amended to read as follows: (8) an action to enforce an arbitra- A. DISCOVERY METHODS; INITIAL tion award. DISCLOSURES. c. Disclosures required under this 1. DISCOVERY METHODS. Parties may paragraph shall be made at or within sixty (60) obtain discovery by one or more of the follow- days after service unless a different time is set ing methods: Depositions upon oral examina- by stipulation or court order, or unless a party tion or written questions; written interrogato- objects that initial disclosures are not appropri- ries; production of documents or things or ate in the circumstances of the action and states permission to enter upon land or other prop- the objection in a motion filed with the court. erty, for inspection and other purposes; physi- In ruling on the objection, the court shall deter- cal and mental examinations; and requests for mine what disclosures, if any, are to be made admission. Except as provided in this section and set the time for disclosure. A party shall or unless the court orders otherwise under this make its initial disclosures based on the infor- section, the frequency of use of these methods mation then readily available to it and is not is not limited. excused from making its disclosures because it has not fully completed its investigation of the 2. INITIAL DISCLOSURES. case or because it challenges the sufficiency of a. Except in categories of proceedings another party’s disclosures or because another specified in subparagraph b of this paragraph, party has not made its disclosures. or to the extent otherwise stipulated or directed B. DISCOVERY SCOPE AND LIMITS. by order, a party, without awaiting a discovery Unless otherwise limited by order of the court request, shall provide to other parties a compu- in accordance with the Oklahoma Discovery tation of any category of damages claimed by Code, the scope of discovery is as follows: the disclosing party, making available for 1. IN GENERAL. inspection and copying the documents or other evidentiary material, not privileged or pro- a. Parties may obtain discovery tected from disclosure, on which such compu- regarding any matter, not privileged, which is tation is based, including materials bearing on relevant to the subject matter involved in the the nature and extent of injuries suffered. pending action, whether it relates to the claim or defense of the party seeking discovery or to b. The following categories of pro- the claim or defense of any other party, includ- ceedings are exempt from initial disclosure ing the existence, description, nature, custody, under subparagraph a of this paragraph: condition and location of any documents, elec- (1) an action for review of an admin- tronically stored information or other tangible istrative record, things and the identity and location of persons having knowledge of any discoverable matter. (2) a petition for habeas corpus or It is not a ground for objection that the infor- other proceeding to challenge a criminal con- mation sought will be inadmissible at the trial viction or sentence, if the information sought appears reasonably
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2157 calculated to lead to the discovery of admissi- the importance of the issues at stake in the ble evidence. action, and the importance of the discovery in resolving the issues. b. A party shall produce upon request pursuant to Section 3234 of this title, any insur- 3. TRIAL PREPARATION: MATERIALS. ance agreement under which any person carry- ing on an insurance business may be liable to a. Subject to the provisions of para- satisfy part or all of a judgment which may be graph 4 of this subsection, discovery may be entered in the action or to indemnify or reim- obtained of Ordinarily, a party may not dis- burse for payments made to satisfy the judg- cover documents and tangible things otherwise ment. Information concerning the insurance discoverable under paragraph 1 of this subsec- agreement is not by reason of disclosure admis- tion and that are prepared in anticipation of sible in evidence at trial. For purposes of this litigation or for trial by or for another party or section, an application for insurance shall not be by or for the its representative of that other treated as a part of an insurance agreement. party, (including his the other party’s attorney, consultant, surety, indemnitor, insurer or 2. LIMITATIONS ON FREQUENCY agent). But, subject to the provisions of para- AND EXTENT. graph 4 of this subsection, those materials may a. By order, the court may alter the be discovered if: limits on the length of depositions under Sec- (1) they are otherwise discoverable tion 3230 of this title, on the number of inter- under paragraph 1 of this subsection; and rogatories under Section 3233 of this title, on the number of requests to produce under Sec- (2) only upon a showing that the tion 3234 of this title, or on the number of party shows that it seeking discovery has sub- requests for admission under Section 3236 of stantial need of for the materials in the prepa- this title. ration of his case and that he is unable, to pre- pare its case and cannot, without undue hard- b. A party is not required to provide ship, to obtain the their substantial equivalent discovery of electronically stored information of the materials by other means. from sources that the party identifies as not rea- sonably accessible because of undue burden or b. If the court orders In ordering dis- cost. On motion to compel discovery or for a covery of such materials, it must when the protective order, the party from whom discov- required showing has been made, the court ery is sought must show that the information is shall protect against disclosure of the mental not reasonably accessible because of undue bur- impressions, conclusions, opinions or legal den or cost. If that showing is made, the court theories of an a party’s attorney or other repre- may order discovery from such sources if the sentative of a party concerning the litigation. requesting party shows good cause, considering c. A party or other person may, on the limitations of subparagraph c of paragraph request and obtain, without the required show- 2 of subsection B of this section. The court may ing, obtain the person’s own previous provided specify conditions for the discovery. for in this paragraph, a statement concerning c. On motion or on its own, the court about the action or its subject matter previously shall limit the frequency or extent of discovery made by that party. Upon request, a person not otherwise allowed if it determines that: a party may obtain without the required show- ing a statement concerning the action or its (1) the discovery sought is unrea- subject matter previously made by that person. sonably cumulative or duplicative, or can be If the request is refused, the person may move obtained from some other source that is more for a court order, and the . The provisions of convenient, less burdensome, or less expensive, paragraph 4 of subsection A of Section 3237 of (2) the party seeking discovery has this title apply to the award of expenses had ample opportunity to obtain the informa- incurred in relation to the motion. A previous tion by discovery in the action, or For purposes of this paragraph, a statement previously made is either: (3) the burden or expense of the proposed discovery outweighs its likely bene- (1)a. a written statement that the fit, considering the needs of the case, the person has signed or otherwise adopted or amount in controversy, the parties’ resources, approved by the person making it, or
2158 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 (2)b. a contemporaneous steno- b. The protection provided by para- graphic, mechanical, electrical, or other record- graph 3 of this subdivision extends to commu- ing, or a transcription thereof, which substan- nications between the party’s attorney and any tially recites an recites substantially verbatim expert witness retained or specially employed the person’s oral statement by the person mak- to provide expert testimony in the case or ing it and contemporaneously recorded. whose duties as the party’s employee regularly involve giving expert testimony, except to the 4. TRIAL PREPARATION: EXPERTS. extent that the communications: a. Discovery of facts known and opin- (1) Relate to compensation for the ions held by experts, otherwise discoverable expert’s study or testimony; under the provisions of paragraph 1 of this subsection and acquired or developed in antic- (2) Identify facts or data that the ipation of litigation or for trial, may be obtained party’s attorney provided and that the expert only as follows: considered in forming the opinions to be expressed; or (1) A party may, through interroga- tories, require any other party to identify each (3) Identify assumptions that the person whom that other party expects to call as party’s attorney provided and that the expert an expert witness at trial and give the address relied upon in forming the opinions to be at which that expert witness may be located. expressed. (2) After disclosure of the names c.b. A party may Ordinarily, a party and addresses of the expert witnesses, the may not, by interrogatories or deposition, dis- other party expects to call as witnesses, the cover facts known or opinions held by an party, who has requested disclosure, may expert who has been retained or specially employed by another party in anticipation of depose any such expert witnesses subject to litigation or to prepare preparation for trial and scope of this section. Prior to taking the deposi- who is not expected to be called as a witness at tion the party must give notice as required in trial. But a party may do so only , only upon subsections A and C of Section 3230 of this title. motion, when the court may order discovery as If any documents are provided to such dis- provided in Section 3235 of this title or upon a closed expert witnesses, the documents shall showing of exceptional circumstances under not be protected from disclosure by privilege which it is impracticable for the party seeking or work product protection and they may be discovery to obtain facts or opinions on the obtained through discovery. same subject by any other means. (3) In addition to taking the deposi- d.c. Unless manifest injustice would tions of expert witnesses the party may, through result: interrogatories, require the party who expects to call the expert witnesses to state the subject (1) The court shall require that the matter on which each expert witness is expect- party seeking discovery pay the expert a rea- ed to testify; the substance of the facts and sonable fee for time spent in responding to opinions to which the expert is expected to discovery under division (2) of subparagraph a testify and a summary of the grounds for each of this paragraph and subparagraph cb of this opinion; the qualifications of each expert wit- paragraph. ness, including a list of all publications authored (2) The court shall require that the by the expert witness within the preceding ten party seeking discovery with respect to discov- (10) years; the compensation to be paid to the ery obtained under subparagraph cb of this expert witness for the testimony and prepara- paragraph, pay the other party a fair portion of tion for the testimony; and a listing of any the fees and expenses reasonably incurred by other cases in which the expert witness has the latter party in obtaining facts and opinions testified as an expert at trial or by deposition from the expert. within the preceding four (4) years. An inter- 5. CLAIMS OF PRIVILEGE OR PROTEC- rogatory seeking the information specified TION OF TRIAL PREPARATION MATERIALS. above shall be treated as a single interrogatory for purposes of the limitation on the number of a. When a party withholds informa- interrogatories in Section 3233 of this title. tion otherwise discoverable under the Okla-
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2159 homa Discovery Code by claiming that it is d. that certain matters not be inquired privileged or subject to protection as trial into, or that the scope of the disclosure or dis- preparation material, the party shall make the covery be limited to certain matters, claim expressly and shall describe the nature of e. that discovery be conducted with the documents, communications, or things not no one present except persons designated by produced or disclosed in a manner that, with- the court, out revealing information itself privileged or protected, will enable other parties to assess f. that a deposition after being sealed the applicability of the privilege or protection. be opened only by order of the court, b. If information produced in discov- g. that a trade secret or other confi- ery is subject to a claim of privilege or of pro- dential research, development or commercial tection as trial preparation material, the party information not be disclosed or be disclosed making the claim may notify any party that only in a designated way, and received the information of the claim and the h. that the parties simultaneously file basis for it. After being notified, a party shall specified documents or information enclosed promptly return, sequester, or destroy the in sealed envelopes to be opened as directed by specified information and any copies the party the court; has; shall not use or disclose the information until the claim is resolved; shall take reason- 2. If the motion for a protective order is able steps to retrieve the information if the denied in whole or in part, the court may, on party has disclosed it before being notified; such terms and conditions as are just, order and may promptly present the information to that any party or person provide or permit dis- the court under seal for a determination of the covery. The provisions of paragraph 4 of sub- claim. The producing party shall preserve the section A of Section 3237 of this title apply to information until the claim is resolved. This the award of expenses incurred in relation to mechanism is procedural only and does not the motion. Any protective order of the court alter the standards governing whether the which has the effect of removing any material information is privileged or subject to protec- obtained by discovery from the public record tion as trial preparation material or whether shall contain the following: such privilege or protection has been waived. a. a statement that the court has deter- C. PROTECTIVE ORDERS. mined it is necessary in the interests of justice to remove the material from the public record, 1. Upon motion by a party or by the person from whom discovery is sought, accom- b. specific identification of the mate- panied by a certification that the movant has in rial which is to be removed or withdrawn from good faith conferred or attempted to confer, the public record, or which is to be filed but not either in person or by telephone, with other placed in the public record, and affected parties in an effort to resolve the dis- c. a requirement that any party obtain- pute without court action, and for good cause ing a protective order place the protected mate- shown, the court in which the action is pend- rial in a sealed manila envelope clearly marked ing or on matters relating to a deposition, the with the caption and case number and is clear- district court in the county where the deposi- ly marked with the word “CONFIDENTIAL”, tion is to be taken may enter any order which and stating the date the order was entered and justice requires to protect a party or person the name of the judge entering the order; from annoyance, harassment, embarrassment, oppression or undue delay, burden or expense, 3. No protective order entered after the including one or more of the following: filing and microfilming of documents of any kind shall be construed to require the micro- a. that the discovery not be had, film record of such filing to be amended in any b. that the discovery may be had only fashion; on specified terms and conditions, including a 4. The party or counsel which has designation of the time or place, received the protective order shall be respon- c. that the discovery may be had only sible for promptly presenting the order to by a method of discovery other than that appropriate court clerk personnel for appropri- selected by the party seeking discovery, ate action;
2160 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 5. All documents produced or testimo- a. (1) the party knows that the response ny given under a protective order shall be was incorrect in some material respect when retained in the office of counsel until required made, or by the court to be filed in the case; (2) the party knows that the 6. Counsel for the respective parties response, which was correct when made, is no shall be responsible for informing witnesses, as longer true in some material respect, and necessary, of the contents of the protective order; and b. the additional or corrective infor- mation has not otherwise been made known to 7. When a case is filed in which a party the other parties during the discovery process intends to seek a protective order removing or in writing; and material from the public record, the plaintiff(s) and defendant(s) shall be initially designated 3. A duty to supplement responses may on the petition under pseudonym such as be imposed by order of the court, agreement of “John or Jane Doe”, or “Roe”, and the petition the parties, or at any time prior to trial through shall clearly indicate that the party designa- new requests for supplementation of prior tions are fictitious. The party seeking confiden- responses. tiality or other order removing the case, in F. DISCOVERY CONFERENCE. At any whole or in part, from the public record, shall time after commencement of an action, the immediately present application to the court, court may direct the attorneys for the parties to seeking instructions for the conduct of the case, appear for a conference on the subject of dis- including confidentiality of the records. covery. The court shall do so upon motion by D. SEQUENCE AND TIMING OF DIS- the attorney for any party if the motion COVERY. Unless the court upon motion, for includes: the convenience of parties and witnesses and 1. A statement of the issues as they then in the interests of justice, orders otherwise, appear; methods of discovery may be used in any sequence. The fact that a party is conducting 2. A proposed plan and schedule of dis- discovery, whether by deposition or otherwise, covery; shall not operate to delay discovery by any 3. Any limitations proposed to be placed other party. on discovery; E. SUPPLEMENTATION OF RESPONSES. 4. Any other proposed orders with re- A party who has responded to a request for spect to discovery; and discovery with a response that was complete when it was made is under no duty to supple- 5. A statement showing that the attor- ment the response to include information ney making the motion has made a reasonable thereafter acquired, except as follows: effort to reach agreement with opposing attor- neys on the matters set forth in the motion. 1. A party is under a duty seasonably to supplement the response with respect to any Each party and his attorney are under a question directly addressed to: duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the a. the identity and location of persons attorney for any party. Notice of the motion having knowledge of discoverable matters, shall be served on all parties. Objections or and additions to matters set forth in the motion b. the identity of each person expected shall be served not later than ten (10) days after to be called as an expert witness at trial, the service of the motion. subject matter on which the person is expected Following the discovery conference, the to testify, and the substance of the testimony of court shall enter an order tentatively identify- the person; ing the issues for discovery purposes, estab- 2. A party is under a duty seasonably to lishing a plan and schedule for discovery, set- amend a prior response to an interrogatory, ting limitations on discovery, if any; and deter- request for production, or request for admis- mining such other matters, including the allo- sion if the party obtains information upon the cation of expenses, as are necessary for the basis of which: proper management of discovery in the action.
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2161 In preparing the plan for discovery the court able inquiry consistent with the Oklahoma shall protect the parties from excessive or abu- Discovery Code and warranted by existing law sive use of discovery. An order shall be altered or a good faith argument for the extension, or amended whenever justice so requires. modification or reversal of existing law; Subject to the right of a party who prop- 2. Interposed in good faith and not pri- erly moves for a discovery conference to marily to cause delay or for any other improper prompt convening of the conference, the court purpose; and may combine the discovery conference with a 3. Not unreasonable or unduly burden- pretrial conference. some or expensive, given the nature and com- G. SIGNING OF DISCOVERY REQUESTS, plexity of the case, the discovery already had in RESPONSES AND OBJECTIONS. Every the case, the amount in controversy, and other request for discovery, response or objection values at stake in the litigation. If a request, thereto made by a party represented by an response or objection is not signed, it shall be attorney shall be signed by at least one of the deemed ineffective. party’s attorneys of record in the party’s indi- If a certification is made in violation of the vidual name whose address shall be stated. A provisions of this subsection, the court, upon party who is not represented by an attorney motion or upon its own initiative, shall impose shall sign the request, response or objection upon the person who made the certification, the and state the party’s address. The signature of party on whose behalf the request, response or the attorney or party constitutes a certification objection is made, or both, an appropriate sanc- that the party has read the request, response or tion, which may include an order to pay to the objection, and that it is: amount of the reasonable expenses occasioned 1. To the best of the party’s knowledge, thereby, including a reasonable attorney fee. information and belief formed after a reason-
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2162 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 Legal Aid Services of Oklahoma Inc. Oklahoma Indian Legal Services Inc. FAMILY PRACTICE MONTAGE XIV
SELECTED TOPICS FOR PRO BONO ATTORNEYS Monday, October 25, 2010 Oklahoma Bar Center, Emerson Hall, 1901 N. Lincoln Blvd., Oklahoma City, Oklahoma MCLE Credit of 7.0 Hours, Including 1.0 hours of ethics PROGRAM AGENDA Moderator: Richard J. Vreeland 8:30-8:55 Registration & Continental Breakfast 8:55-9:00 Welcome 9:00-9:50 Recent Developments in Family Law Robert G. Spector, Glenn R. Watson Centennial Chair in Law, Univ. of Oklahoma College of Law 9:55-10:45 Understanding the Hidden Dynamics of Domestic Violence. Matt Atkinson, Oklahoma Coalition Against Domestic Violence and Sexual Assault 10:50-11:40 Working With OCSS as a Necessary Party Amy Wilson and Elizabeth Wilson, Oklahoma Child Support Services 11:40-1:00 Lunch (on your own) Sign-in after lunch for the afternoon session. 1:00-1:50 Domestic Violence – Law Enforcement Perspective Detective Robert Kemmet, Oklahoma City Police Department 1:55-2:45 The Power of Story Paula Wood and Richard Goralewicz, Staff Attorneys, Legal Aid Services of Oklahoma Inc.
2:55-3:45 Ethics Update 2010 Travis Pickens, Ethics Counsel, Oklahoma Bar Association
3:50-4:40 UCCJEA – Still Misunderstood After All These Years T. Neil Lynn, Oklahoma City Managing Attorney, Legal Aid Services of Oklahoma Inc.
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Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2163 Disposition of Cases Other Than by Published Opinion
COURT OF CRIMINAL APPEALS to Possession of a Controlled Dangerous Sub- Thursday, September 23, 2010 stance with Intent to Distribute, in Oklahoma County District Court Case No. CF-2007-77. RE-2009-1127 — On August 12, 2004, Appel- Holman’s sentencing was deferred for five lant, Brian K. Keeling, pled guilty in Pontotoc years. On February 18, 2009, the State filed an County District Court Case No. CF-2004-43 to application to accelerate Holman’s sentence. A Lewd Molestation. He was sentenced to five hearing was held on the State’s application on years suspended with rules and conditions of March 18, 2009, before the Honorable Ray C. probation. The State filed an application to Elliott, District Judge. At the conclusion of the revoke Appellant’s suspended sentence on hearing, Holman’s deferred sentence was accel- June 23, 2005. An amended application to revoke erated and she was sentenced to twenty years was filed February 17, 2006. On April 7, 2008, a incarceration. From that order of acceleration, second amended application to revoke was Holman has perfected this appeal. The order of filed. A third amended application to revoke the District Court of Oklahoma County accel- was filed on November 10, 2008, Following a erating Holman’s deferred sentence in Case hearing December 1, 2009, the Honorable Ste- No. CF-2007-77 is AFFIRMED. Opinion by: ven Kessinger, Special Judge, found Appellant Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, violated the rules and conditions of his sus- V.P.J., Concurs; Lumpkin, J., Concurs. pended sentence as alleged and revoked Appel- lant’s suspended sentence in full, five years. C-2010-243 — John William Childers, Peti- Appellant appeals from the revocation of his tioner, was charged in the District Court of suspended sentence. From this judgment and Delaware County, Case No. CF-2007-341, with sentence, Brian K. Keeling has perfected his Sex Offender Living within 2000 Feet of a appeal. The revocation of Appellant’s suspend- School and in Case No. & CF-2007-359, with ed sentence in Pontotoc County District Court Failure to Notify Address Change as a Sex Case No. CF-2004-43 is AFFIRMED. Opinion by: Offender, both After Former conviction of Two Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, or More Felonies. Petitioner entered a blind V.P.J., Concurs; Lumpkin, J., Concurs. plea of guilty to the crimes charged. The Hon- orable Barry V. Denney sentenced Petitioner to F-2009-313 — Logan Adam Deaton, Appel- life imprisonment on each charge with the sen- lant, was charged with and tried by jury on one tences to run consecutively. Petitioner subse- count of first degree rape in violation of 21 quently filed a motion to withdraw his guilty O.S.Supp.2006, § 1111 and 21 O.S.2001, § 1114, plea. The district court denied the motion and and one count of assault and battery with this appeal followed. The Petition for Writ of intent to kill, in violation of 21 O.S.Supp.2007, Certiorari is DENIED. Opinion by: C. Johnson, § 652, in the District Court of Cleveland Coun- P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., ty, case number CF-2007-1914, before the Hon- Concurs in Results; Lewis, J., Concurs in orable Lori M. Walkley, District Judge. The jury Results; Smith, J., Concurs in Results. found Deaton guilty of first degree rape, but F-2009-876 — Wesley Ray Mulligan, Appel- not guilty on the assault and battery charge, lant, was tried by jury for the crime of Endeav- and set punishment at thirty-five (35) years oring to Manufacture Controlled Drugs (Meth- imprisonment. Judge Walkley sentenced Dea- amphetamine), after former conviction to two ton in accordance with the jury verdict, sus- or more felonies, in Case No. CF-2009-988 in pending the last ten years. From this judgment the District Court of Tulsa County. The jury and sentence, Logan Adam Deaton has per- returned a verdict of guilty and recommended fected his appeal. AFFIRMED. Opinion by: as punishment forty (40) years imprisonment Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, and a $300,000 fine. The trial court sentenced V.P.J., Concurs in Results; Lumpkin, J., Con- accordingly. From this judgment and sentence curs; Smith, J., Concurs. Wesley Ray Mulligan has perfected his appeal. F-2009-283 — Appellant, Connie C. Holman, AFFIRMED. Opinion by: C. Johnson, P.J.; A. represented by counsel, entered a plea of guilty Johnson, V.P.J., Concurs; Lumpkin, J., Concurs
2164 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 in Results; Lewis, J., Concurs; Smith, J., Gatewood’s pleas and, following the comple- Recuse. tion of a presentence investigation report, sen- F-2008-687 and F-2008-688 — Marquis Lajuan tenced him to 35 years imprisonment for drug Mitchell, Appellant, was tried by jury in Case trafficking and 10 years imprisonment for ille- No. CF-2006-6332 for the crimes of Larcency of gally using a telephone to facilitate drug traf- an automobile (Count 1) in violation of 21 O. ficking, with the sentences to be served concur- S.Supp.2002, § 1720, Aggravated eluding of rently. After the prescribed hearing, Gatewood’s police officer (Count 2), in violation of 21 O. timely motion, and a subsequent amendment S.2001, § 540A(B), and Possession of firearm to that motion, were denied by Judge Scaggs. (sawed-off shotgun)(Count 3), in violation of Gatewood now appeals that denial and asks 21 O.S.Supp.2005, § 1283; and in Case No. CF- this Court to issue a Writ of Certiorari allowing 2006-6333 for the crimes of First Degree Mur- him to withdraw his pleas and proceed to trial. der (Count 1), in violation of 21 O.S.Supp.2006, The Petition for Writ of Certiorari is GRANT- § 701.7, Shooting with intent to kill (Count 2), ED. The Judgment and Sentence of the district in violation of 21 O.S.Supp.2005, § 652, Using a court is REVERSED and Gatewood is allowed vehicle to facilitate the intentional discharge of to withdraw his pleas of guilt. Gatewood’s a firearm (drive-by shooting)(Count 3), in vio- Motion to Supplement the Record and/or for lation of 21 O.S.Supp.2005, § 652(B), and Pos- Evidentiary Hearing is GRANTED. Opinion session of a firearm (semi-automatic rifle) by a by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; previously adjudicated juvenile felon (Count Lumpkin, J., dissents; Lewis, J., concurs; Smith, 4), in violation of 21 O.S.Supp.2005, § 1283, in J., dissents. the District Court of Oklahoma County. The jury returned a verdict of guilty on all counts F-2009-697 — Justin Dale Yost, Appellant, and recommended as punishment in Case No. was convicted, after jury trial, of Manslaughter CF-2006-6332 – five years on Count 1, one year in the First Degree in violation of 21 O.S.2001, on Count 2, and three years on Count 3, and in § 711(1), after former conviction of one felony, Case No. CF-2006-6333 – Life on Count 1, 18 in the District Court of Ottawa County, case years on Count 2, 12 years on Count 3, and number CF-2008-235, before the Honorable seven years on Count 4. The trial court sen- Robert G. Haney, District Judge. The jury tenced accordingly. From these judgments and assessed punishment at twenty-five (25) years sentences Marquis Lajuan Mitchell has per- imprisonment and Judge Haney sentenced Yost fected his appeals. The convictions in Case in accordance with the jury verdict. From this Numbers CF-2006-6332 and CF-2006-6333 are judgment and sentence, Justin Dale Yost has AFFIRMED. The cases are remanded to the perfected his appeal. The Judgment and Sen- district court, however, for the limited purpose tence of the district court is AFFIRMED. Appel- of entering a nunc pro tunc correction to the lant’s motion for an evidentiary hearing is judgment and sentence documents to ensure DENIED. Opinion by: Lewis, J.; C. Johnson, P.J., they accurately reflect the sentences as orally Concurs; A. Johnson, V.P.J., Concurs in Results; pronounced from the bench. That is, the judg- Lumpkin, J., Concurs; Smith, J., Concurs. ment and sentence documents must be cor- rected to show that that the sentences on each Tuesday, September 28, 2010 count in each case will run consecutively and F-2009-792 — Appellant John Wesley Larkin, that the sentences in Case No. CF-2006-6332 Jr., was tried by jury and convicted of First and Case No. CF-2006-6333 will run concur- Degree Manslaughter (Count I) and Possession rently. OPINION BY: A. Johnson, V.P.J.; C. of a Firearm, After Former Conviction of a Johnson, P.J., concurs; Lumpkin, J., concurs; Felony (Count II), Case No. CF-2008-2948, in Lewis, J., concurs. the District Court of Tulsa County. The jury Friday, September 24, 2010 recommended as punishment imprisonment C-2009-542 — Roscoe Curtis Gatewood, Jr., for seventeen and half (17½) years in Count I Petitioner, entered blind pleas of guilty to the and four (4) years in Count II. The trial court crimes of Trafficking in Illegal Drugs (Cocaine sentenced accordingly, ordering the sentences Base) in Case No. CF-2007-130, and Using a to be served consecutively. It is from this judg- Telephone to Cause the Commission of the ment and sentence that Appellant appeals. Crime of Trafficking in Illegal Drugs in Case AFFIRMED. Opinion by: Lumpkin, J.; C. John- No. CF-2007-131, in the District Court of Love son, P.J., concur; A. Johnson, V.P.J., concur; County. The Honorable John Scaggs accepted Lewis, J., concur; Smith, J., concur.
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2165 COURT OF CIVIL APPEALS cross-appeal. The claims made in the cross- (Division No. 1) appeal are therefore abandoned and we affirm Friday, September 17, 2010 the final distribution order. AFFIRMED IN 106,442 — In Re The Marriage of Boeckman. PART, REVERSED IN PART AND REMAND- Melody Boeckman, Petitioner/Appellee, vs. ED. Opinion by Buettner, P.J.; Hansen, J., con- Brian Boeckman, Respondent/Appellant. curs in result, and Hetherington, J., concurs. Appeal from the District Court of Tulsa Coun- 107,038 — In Re the Marriage of: S.M. Sager, ty, Oklahoma. Honorable Carl Funderburk, now Hicks, Petitioner/Appellee, and S.D. Judge. Respondent/Appellant Brian Boeck- Sager, Respondent/Appellant. Appeal from man (Husband) appeals from a September 24, the District Court of Tulsa County, Oklahoma. 2008 judgment finding Husband guilty of indi- Honorable Carlos J. Chappelle, Judge. In post- rect contempt for failure to pay alimony and decree contempt proceedings filed by S.M. attorney fees awarded to Petitioner/Appellee Sager, now Hicks (Appellee) against S.D. Sager Melody Boeckman (Wife) in a temporary order (Appellant) for noncompliance with their con- in the parties’ divorce proceeding. After Hus- sent decree of dissolution, Appellant seeks band filed this appeal from the contempt judg- review of a trial court order finding him guilty ment, Husband and Wife entered an agreed of indirect contempt for failure to pay child dissolution decree in which they agreed that support and other child-related expenses and the contempt judgment would not merge into sentencing him to 6 months incarceration sub- the decree. The record supports the trial court’s ject to purge. We conclude the trial court lacked finding of clear and convincing evidence that jurisdiction over the temporary orders upon Husband wilfully refused to pay a lawful which Ex-wife’s indirect contempt proceeding order. We AFFIRM the judgment. AFFIRMED. was partly based in the absence of an applica- Opinion by Buettner, P.J.; Hansen, J., and Heth- tion of contempt citation alleging violations of erington, J., concur. such orders filed prior to the court’s approval Friday, September 24, 2010 of the 11/9/06 Agreed Decree. The trial court erred, as a matter of law, by including in the 106,790 — In the Matter of the Estate of Lola total purge fee (1) arrearage amounts in excess Ladene Webb, Deceased. Charles L. Watkins, of the amounts Appellee originally claimed in Linda K. Watkins, and Laurie Ladene Cole- her 5/19/08 Contempt Application, and (2) man, Petitioners/Appellees/Cross-Appellants, support obligations which arose by a valid and vs. Robin Jeanne Webb, Personal Representa- enforceable order rendered subsequent to the tive of the Estate of Lola Ladene Webb, Respon- 11/9/06 Agreed Decree. These legal errors dent/Appellant/Cross-Appellee. Appeal from require that we reverse the order and remand the District Court of Noble County, Oklahoma. with instructions to dismiss it. REVERSED Honorable Dan Allen, Judge. Appellant Robin AND REMANDED WITH INSTRUCTIONS. Jeanne Webb, Personal Representative of the Opinion by Hetherington, J.; Buettner, P.J., con- Estate of Lola Ladene Webb, appeals from the trial court’s order denying her request for curs in result, and Hansen, J., concurs. attorney fees. The trial court found that Appel- 107,166 — Henry Bodden and Jane Bodden, lee Charles L. Watkins’s Petition for Letters of Plaintiffs/Appellees, vs. Lisa Butts, d/b/a A Administration was not “totally without merit Girl and A Gallon of Glaze, Defendant/Appel- or frivolous” and therefore declined to award lant, and Jim Butts, Defendant. Appeal from attorney fees to Appellant. This appeal pro- the District Court of Rogers County, Okla- ceeds on Appellant’s brief only. Appellant’s homa. Honorable J. Dwayne Steidley, Judge. brief is reasonably supportive of her claim that Defendant/Appellant Lisa Butts, d/b/a A Girl the trial court erred in finding Appellee’s Peti- and a Gallon of Glaze appeals from judgment tion was not totally without merit and frivo- entered in favor of Plaintiffs/Appellees Henry lous. As a result, Appellant was entitled to an Bodden and Jane Bodden in the Boddens’ breach award of attorney fees under 12 O.S.2001 of contract action against Painter. The trial court §2011. We reverse and remand for determina- dismissed the Boddens’ claims against Painter’s tion of the amount of attorney fees to be husband, Defendant Jim Butts. The trial court awarded Appellant. Appellee and two heirs did not err in finding Painter had agreed to sat- filed a cross-appeal from the final distribution isfy the Boddens’ expectations. The trial court’s order. The Oklahoma Supreme Court dismissed findings of fact are supported by competent Appellee for lack of standing, and the other evidence. AFFIRMED. Opinion by Buettner, P.J.; parties failed to file a brief in support of the Hansen, J., and Hetherington, J., concur.
2166 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 107,431 — (Cons. w/107,432, 107,433, 107,434) (Division No. 2) Seneca Telephone Company, Plaintiff/Appel- Monday, September 13, 2010 lee, vs. Miami Tribe of Oklahoma, d/b/a White 107,450 — Michael Blanton, Plaintiff/Appel- Loon Construction Company, Defendant/ lee, v. Action Graphix, LLC, Defendant/Appel- Appellant. Appeal from the District Court of lant. Appeal from an order of the District Court Ottawa County, Oklahoma. Honorable William of Oklahoma County, Hon. Carolyn R. Ricks, E. Culver, Trial Judge. Appellant, Miami Tribe Trial Judge. In this negligence case, Defendant of Oklahoma (Tribe), d/b/a White Loon Con- appeals the trial court’s order which granted in struction Company, seeks review of the trial part and denied in part its motion for costs and court’s judgments against it in favor of Appel- attorney fees. The trial court awarded costs to lee (Seneca) in Seneca’s four consolidated small Defendant but denied its request for an award claims cases asserting tort claims arising from of attorney fees. Defendant sought attorney Tribe’s repeated damage to Seneca’s under- fees pursuant to 12 O.S. Supp. 2007 § 2011.1 as ground telephone lines during excavation on the prevailing party against Plaintiff for filing property owned by the Eastern Shawnee Tribe an allegedly frivolous lawsuit against Defen- of Oklahoma (Shawnees). Tribe contends the dant. Based on our review of the record and trial court lacked jurisdiction because the doc- applicable law, we find the trial court did not trine of tribal sovereign immunity pre-empted err in awarding costs but denying attorney fees state court jurisdiction. We affirm, holding pursuant to § 2011.1 and, therefore, we affirm. Oklahoma district courts have jurisdiction over AFFIRMED. Opinion from Court of Civil tribes for violation of the Oklahoma Under- Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. ground Facilities Damage Prevention Act because there is no tradition of tribal sovereign 107,668 — Ernestine Butler, Plaintiff/Appel- immunity in the area of telecommunications lant, v. Creek Nation Casino, Defendant/ regulation and Congress has authorized states Appellee. Appeal from an order of the District to regulate intrastate telecommunication facili- Court of Tulsa County, Hon. Mary F. Fitzger- ties. AFFIRMED. Opinion by Hansen, J.; ald, Trial Judge. Plaintiff appeals from the trial Buettner, P.J., and Hetherington, J., concur. court’s order sustaining Defendant’s motion to dismiss. After review, this Court reverses the 108,235 — Emilio G. Gandara, Plaintiff/ trial court’s order and remands this case to the Appellant, vs. Khoc Trust, John Morris, indi- trial court for further proceedings to permit vidually and as Trustee of the Khoc Trust, and Plaintiff to amend her Petition. Additionally, Bliss Morris, individually and as Trustee of the this Court denies Defendant’s “Motion to Dis- Khoc Trust, Defendants/Appellees. Appeal miss or, in the Alternative, Stay Appeal,” filed from the District Court of Oklahoma County, August 2, 2010. REVERSED AND REMAND- Oklahoma. Honorable Noma D. Gurich, Judge. ED FOR FURTHER PROCEEDINGS. Opinion Plaintiff/Appellant Emilio G. Gandara, a 19 from Court of Civil Appeals, Division II, by year-old college student, was invited by Defen- Barnes, J.; Wiseman, C.J., and Fischer, P.J., dants/Appellees John and Bliss Morris’ son, to concur. swim at their home with some other guests on Thursday, September 16, 2010 the evening of July 3, 2007. The young men 106,030 — Dana Bourland, Plaintiff/Appel- later bought beer, and Gandara drank to excess. lant, v. Christopher Rumsey, Defendant/Appel- In the early morning hours of July 4, 2007, Gan- lee. Appeal from an order of the District Court dara left the Morris residence on his motorcycle of Oklahoma County, Hon. Noma Gurich, Trial and was seriously injured in a one-vehicle acci- Judge, awarding prejudgment interest. The dent. Gandara filed a lawsuit June 18, 2009 for issue on appeal is whether the trial court erred damages, alleging Morris knew, or should in calculating prejudgment interest from the have known, that Gandara was imbibing alco- date of a Supreme Court mandate issued in the holic beverages at their residence and drove case instead of the date of the commencement away intoxicated. Morris filed a Motion for of the action. We conclude that it was an error Summary Judgment which the trial court treat- of law to calculate prejudgment interest begin- ed as a Motion to Dismiss. It granted the ning on the date the mandate was issued rather Motion to Dismiss and entered judgment in than the date the lawsuit was filed. The trial favor of Morris. AFFIRMED. Opinion by court’s order is therefore reversed and remand- Buettner, P.J.; Hansen, J., and Hetherington, J., ed. On remand, the trial court is directed to concur. calculate prejudgment interest from the filing
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2167 of this lawsuit on October 24, 1995. REVERSED properly granted summary judgment in favor AND REMANDED WITH DIRECTIONS. of the lender, the pledgee of the stock. Opinion from the Court of Civil Appeals, Divi- AFFIRMED. Opinion from Court of Civil sion II, by Wiseman, C.J.; Fischer, P.J., and Appeals, Division II, by Barnes, J.; Wiseman, Barnes, J., concur. C.J., and Fischer, P.J., concur. Monday, September 20, 2010 107,863 — Ruby Standingwater, Plaintiff/ 105,341 – State of Oklahoma, Plaintiff/Appel- Appellant, vs. United Supermarkets of Okla- lee, v. Bill Hunter, Defendant/Appellant. homa, Inc., Defendant/Appellee. Appeal from Appeal from an order of the District Court of the District Court of Beckham County, Okla- Choctaw County, Hon. James R. Wolfe, Trial homa. Honorable Charles L. Goodwin, Judge. In this premises liability action, Appellant Judge. Bill Hunter appeals the trial court’s appeals from the trial court’s order granting order denying his petition for the expunge- summary judgment to Appellee. Appellant’s ment of criminal records in two cases. The pri- injury occurred in the middle of the afternoon mary issue presented on appeal is whether the when she entered the automatic sliding glass trial court erred in failing to hold a hearing doors of Appellee’s grocery store. Appellant pursuant to 22 O.S. Supp. 2002 § 19. Based on was following her son through the entryway our review of the record and applicable law, we doors when she fell on a blue rug over the reverse the trial court’s order and, regarding threshold. As a result of the fall, Appellant sus- Hunter’s petition to expunge the records in tained injuries to her left shoulder, right shoul- Case No. CRF-94-168, we remand this case to der, neck and left knee. We affirm on the basis the trial court to follow the procedure, includ- that the blue rug in the threshold of Appellee’s ing a hearing, set forth in 22 O.S. Supp. 2002 store was an open and obvious hazard; thus, § 19. Regarding Hunter’s petition to expunge Appellee had no duty to protect against or the records in Case No. CRM-95-55, we remand warn Appellant of any danger associated with to the trial court to allow Hunter the opportu- the rug. AFFIRMED. Opinion by Bell, V.C.J.; nity to show that all of his charges were dis- Joplin, P.J., and Mitchell, J., concur. missed on the merits so as to fit within 22 O.S. Supp. 2004 § 18(4). If Hunter establishes this Tuesday, September 21, 2010 prima facie showing of harm, then the proce- 107,672 — Certain Underwriters at Lloyd’s, dure, including a hearing, set forth in § 19 is to London, Garnishee/Appellant, vs. Cantera be followed. REVERSED AND REMANDED Concrete Company, LLC, an Oklahoma Limit- FOR FURTHER PROCEEDINGS. Opinion from ed Liability Company, Plaintiff/Appellee, vs. Court of Civil Appeals, Division II, by Barnes, Buckley Construction, Inc., an Oklahoma cor- J.; Wiseman, C.J., and Fischer, P.J., concur. poration, and Kerr 3 Design Group, Inc., an Thursday, September 23, 2010 Oklahoma corporation, Defendants. Appeal from the District Court of Logan County, Okla- 108,207 — First United Bank & Trust Co., a homa. Honorable Donald L. Worthington, state banking corporation, Plaintiff/Appellee, Judge. Garnishee/Appellant (Lloyd’s) appeals v. Glenn S. Penny, Defendant/Appellant. from the trial court’s grant of summary judg- Appeal from a judgment of the District Court ment in favor of Plaintiff/Appellee (Cantera) of Bryan County, Hon. Mark R. Campbell, Trial in this insurance garnishment action by Can- Judge. A lender filed this action to collect tera. Lloyd’s first contends it is not bound by amounts owed by a debtor on a promissory the underlying judgment against Kerr because note. The debtor asserted the lender was negli- Lloyd’s was neither a party nor privy to the gent in failing to discharge its duty to liquidate suit and no evidence of Kerr’s liability was the collateral – publically traded stock – in a submitted to the trial court. It is undisputed commercially reasonable manner. A pledgee’s that Lloyd’s had notice of Cantera’s lawsuit duty with regard to pledged stock is confined against Kerr, its insured, but chose not to par- to physical care and a pledgee will not be liable ticipate in the proceedings. The material facts for a decline in value. Pursuant to 12A O.S.2001 regarding Kerr’s liability to Cantera were con- § 1-9-627(b), a disposition of collateral is made clusively established in the former proceeding. in a commercially reasonable manner if the Thus, Lloyd’s attack upon the underlying judg- disposition is made at the price current in any ment fails. The second argument raised by recognized market at the time of disposition. Lloyd’s focuses on the exclusionary language There is no dispute that this is exactly what the of the insurance policy. We hold Exclusion VIII lender did. Therefore, we find the trial court does not apply to Cantera’s claims against
2168 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 Kerr. There exists no genuine issue as to any cites no authority, nor do we find any, holding material fact and Cantera is entitled to judg- that an appeal to the district court from an ment as a matter of law. AFFIRMED. Opinion administrative agency pursuant to 75 O.S. §318 by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., requires the issuance and service of summons. concur. The Administrative Procedures Act, with its (Division No. 3) plain and unambiguous express terms, does Friday, September 24, 2010 not contain a summons requirement and the trial court erred in imposing one. The compu- 106,776 — In the Matter of the Guardianship tation method in 12 O.S. §2006(A)(1) applies to of Jake Hoffman, an Incapacitated Person, Ear- the ten-day deadline in 75 O.S. §318(C). Insti- nest Hoffman, Contestant/Appellant, vs. tute complied with §318(C) in its timely filing Melba Hall, Respondent/Appellee. Appeal and service of its Petition and the timely filing from the District Court of LeFlore County, of its proof of service. We hold that under the Oklahoma. Honorable Brian Henderson, Judge. Administrative Procedures Act, the trial court Contestant seeks review of the trial court’s had jurisdiction over the appeal and it erred in orders denying his objection to the final account granting OHCA’s motion to dismiss. REVERSED of Respondent in the Guardianship of Jake AND REMANDED. Opinion by Mitchell, J.; Hoffman, an incapacitated person, now Joplin, P.J., and Bell, V.C.J., concur. deceased (Ward). In this appeal, Contestant asserts the trial court erred in approving the (Division No. 4) final account of Respondent, Ward’s guardian. Wednesday, September 15, 2010 Respondent was appointed as both Ward’s 107,811 — In the Matter of K.R., A.R., and attorney in fact, and the guardian of Ward’s K.R., alleged deprived children, Kelly Rush, estate. There is no allegation or proof that Ward Appellant, v. The State of Oklahoma, Appellee. was mentally incompetent to manage his Appeal from an order of the District Court of affairs. Respondent testified, and the trial court Pawnee County, Hon. Matthew D. Henry, Trial found, that Ward specifically directed Respon- Judge. Kelly Marie Rush (Mother) appeals dent to convey his home to Tom and Lloyd, from a judgment, entered on a jury verdict, and specifically directed Respondent to nomi- terminating her parental rights as to her three nate Tom and Lloyd as Payable on Death ben- children, R.R., A.R. and K.R. On April 20, 2006, eficiaries of his CDs. If, in fact, these transfers the Oklahoma Department of Human Services violate some testamentary right of Contestant, (DHS) took custody of all three children fol- the trial court properly directed resolution of lowing a complaint of physical and sexual that issue in the pending probate of Ward’s abuse by their stepfather. Mother was alleged estate. AFFIRMED. Opinion by Joplin, P.J.; Bell, to have failed to protect the children while V.C.J., and Mitchell, J., concur. knowing of the abuse. She also was involved 107,533 — Choices Institute, Plaintiff/Appel- with drugs and faced possible imprisonment at lant, vs. Oklahoma Health Care Authority and that time. On April 25, 2006, the State of Okla- Mike Fogarty, in his Capacity of Chief Execu- homa filed a petition to adjudicate the children tive Officer of the Oklahoma health Care as deprived based upon these allegations. Sub- Authority, Defendants/Appellees. Appeal sequently, it was determined that R.R. is an from the District Court of Garfield County. Indian child and a member of the Creek Nation. Honorable Ronald G. Franklin, Judge. This is The Creek Nation was notified and intervened. an appeal by Choices Institute (Institute) from The State of Oklahoma filed a petition for ter- an order of the district court dismissing Insti- mination of Mother’s parental rights. Mother tute’s appeal from a decision of the Adminis- appeals. In her appeal, Mother challenges jury trator of the Oklahoma Health Care Authority instructions, sufficiency of the evidence, expert (OHCA). OHCA sought dismissal on the basis qualifications, and the trial court’s response to of Institute’s failure to have summons issued a question from the jury. Because R.R. is an and failure to file proof of service within ten Indian child, the stricter “beyond a reasonable days which, OHCA claims, violates §318(C) of doubt” proof standard contained in the ICWA the Administrative Procedures Act, 75 O.S. became a factor. Thus, Mother asked the trial 2001 §250 et seq. After oral argument, the trial court to instruct the jury that all of the elements court announced it “had no jurisdiction to hear the State had to prove as to R.R. had to be the appeal” due to these alleged deficiencies proven “beyond a reasonable doubt. The trial and granted OHCA’s Motion to Dismiss. Insti- court limited that standard to the issue of tute’s motion to reconsider was denied. OHCA whether continued custody by Mother would
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2169 result in serious emotional or physical harm to ing Appellees summary judgment is therefore R.R. In so doing, the trial court did not use affirmed. The trial court did not, however, OUJI 5.8 or OUJI 5.23. As a result, the State’s make the requisite findings entitling Appellees burden for all of the children to establish termi- to fees and costs, and accordingly that order is nation of parental rights was the clear and reversed. AFFIRMED IN PART, REVERSED IN convincing standard as to all state elements. PART. Opinion from the Court of Civil Appeals, The single federal element then had to be Division IV, by Goodman, J.; Gabbard, P.J., con- established by the beyond a reasonable doubt curs; Rapp, J., not participating. standard as to R.R. The trial court’s instruction 108,334 — David Boswell, individually, and clearly conflicts with the OUJI instruction as as father and next of kin of T.B., a minor, Plain- explained in the commentary. The trial court tiffs/Appellants, v. Edmond School District, a correctly instructed the jury regarding the dual political subdivision, Defendant/Appellee, burdens of proof applicable in the case of R.R., and Joe Guerra, individually, and as custodial an Indian child. The finding that continued parent of K.G., a minor, defendant. Appeal custody of the child by the parent is likely to from the District Court of Oklahoma County, result in serious emotional or physical harm is Hon. Twyla Mason Gray, Trial Judge, granting supported by testimony of a “qualified expert summary judgment to Appellee Edmond witness.” The record satisfies the ICWA require- ment that the State satisfy the court that active School District (School). T.B. suffered perma- efforts were made to reunite Mother with R.R. nent injury when he was hit in the eye by an and that they were unsuccessful. There was no item thrown by another student, K.G. Plaintiff, error based upon the trial court’s response to after giving notice of the claim pursuant to the the jury’s inquiry. AFFIRMED. Opinion from Oklahoma Governmental Tort Claims Act, Court of Civil Appeals, Division IV, by Rapp, J.; (OGTCA) 51 O.S.2001 and Supp. 2009, §§ 151 Goodman, J., concurs, and Gabbard, P.J., con- through 200, sued. School answered and sought curs specially. summary judgment. It claimed the damages were unforeseeable, were the result of the Friday, September 24, 2010 actions of a third-party over whom it exercised 107,722 — Marilyn Sue Goff, Plaintiff/Appel- no control, were not caused by any of its lant, v. Salazar Roofing & Construction, Inc., an employees, and that it was exempt from liabil- Oklahoma Corporation, and Robert Maulpin, ity pursuant to the OGTCA. We agree. We find individually, a/k/a Robert Maupin, Defen- no set of facts which would support the conclu- dants/Appellees, and Salazar Roofing & Con- sion School’s employees acted negligently or struction USA, Inc., an Oklahoma Corporation; deprived School of its immunity pursuant to and/or a/k/a and/or d/b/a Salazar Roofing the OGTCA. The trial court’s grant of summary Corporation, an Oklahoma Corporation; and/ judgment is affirmed. AFFIRMED. Opinion or a/k/a and/or d/b/a Salazar Contracting, from the Court of Civil Appeals, Division IV, Inc., an Oklahoma Corporation, Defendants. by Goodman, J.; Gabbard, P.J., concurs; Rapp, Appeal from orders of the District Court of J., not participating. Canadian County, Hon. Edward C. Cunning- Tuesday, September 28, 2010 ham, Trial Judge, granting summary judgment to Salazar Roofing & Construction, Inc. (Sala- 107,385 — The Bank of New York Trust Com- zar) and Robert Maupin’s (Maupin) (collec- pany, N.A., as Successor to JP Morgan Chase tively “Appellees”) and awarding Appellees Bank, N.A., as Trustee, Plaintiff/Appellee, vs. an attorney’s fee and costs. Goff filed suit Bruce A. Hancock, Jr. a/k/a Bruce Archie Han- against Appellees pursuant to the Americans cock, Jr., Defendant/Appellant. Appeal from with Disabilities Act (ADA). On appeal, Goff Order of the District Court of Oklahoma Coun- contends the trial court erred because the issue ty, Hon. Vicki Robertson, Trial Judge, denying of whether she has a disability and whether Defendant’s motion to set aside an order con- Appellees discriminated against her based on firming sale of Defendant’s property. Defendant this disability is a question of fact. We agree fails to demonstrate in the appellate record that that a jury could conclude Goff has a physical either of his allegations of error were properly impairment that meets the definition of a dis- raised or preserved in the trial court. The trial abled person under the ADA, but she did not court’s decision is therefore affirmed. present sufficient evidence to establish that she AFFIRMED. Opinion from Court of Civil suffered an adverse employment action because Appeals, Division IV, by Gabbard, J.; Goodman, of her disability. The trial court’s order grant- J., concurs, and Rapp, J., not participating.
2170 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 ORDERS DENYING REHEARING (Division No. 1) Friday, September 24, 2010 You are not alone. 108,163 — Douglas Friedman, Plaintiff/ Appellant, vs. Shelter Mutual Insurance Com- pany, Defendant/Appellee. Defendant/Appel- lee’s Petition for Rehearing filed August 26, 2010 is DENIED. (Division No. 3) Monday, September 27, 2010 107,534 — Stephen Burnett, Plaintiff/Appel- lant, vs. John Middleton, Linda Jester, Robin Roof, Defendants/Appellees. Appellant’s Peti- tion for Rehearing and Brief in Support, filed September 7, 2010, is DENIED. 107,875 — Jana D. Vorheis, Petitioner, vs. Nabisco, Inc., and/or Kraft Foods, Inc., (Own Risk #2158), and The Workers’ Compensation Court, Respondents. Appellant’s Application for Rehearing to the Court of Appeals, filed September 16, 2010, is DENIED. 107,151 — Alice M. Estes, Plaintiff/Appel- lant, vs. Kirk R. Boersma, Personal Representa- tive of the Estate of Donaleen B. Jennings, Defendant/Appellee. Appellant’s Petition for Rehearing and Brief in Support Thereof, filed September 13, 2010, is DENIED.
Men Helping Men October 28 The Best Plan for Me Time - 5:30-7 p.m. Location The Oil Center – West Building 1st Floor Conference Room 2601 NW Expressway Daniel Rodriguez Oklahoma City, OK 73112 Minerva House Drysdale Regents Chair in Law * Food and drink will be provided! University of Texas School of Law * Meetings are free and open to male OBA members. “Are State Constitutions Fundamentally * Reservations are preferred. (We want to have enough Progressive Documents (and Why space and food for all.) Should We Care)?” For further information and to reserve your spot, THURSDAY, OCTOBER 21, 2010 please e-mail [email protected]. 5 p.m. Public Lecture OKLAHOMA CITY UNIVERSITY SCHOOL OF L AW Homsey Family Moot Courtroom Sarkeys Law Center LAWYERS HELPING LAWYERS N.W. 23rd and Kentucky For more information call: Okla. City, OK. 73106 (405) 208-5335 | http://law.okcu.edu/ Free and open to the public. ASSISTANCE PROGRAM
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2171 BAR NEWS 2011 OBA Board of Governors Vacancies Nominating Petition Deadline was 5 p.m. Friday, Sept. 17, 2010 OFFICERS Summary of Nominations Rules Not less than 60 days prior to the Annual Meeting, President-Elect Current: Deborah Reheard, Eufaula 25 or more voting members of the OBA within the Ms. Reheard automatically becomes OBA Supreme Court Judicial District from which the president Jan. 1, 2011 member of the Board of Governors is to be elected (One-year term: 2011) that year, shall file with the Executive Director, a Nominee: Cathy Christensen, Oklahoma City 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: Mack K. Martin, Oklahoma City one or more County Bar Associations within the (One-year term: 2011) Judicial District may file a nominating resolution Nominee: Reta M. Strubhar, Piedmont nominating such a candidate. Not less than 60 days prior to the Annual BOARD OF GOVERNORS Meeting, 50 or more voting members of the OBA Supreme Court Judicial District Two from any or all Judicial Districts shall file with the Current: Jerry L. McCombs, Idabel Executive Director, a signed petition nominating a Atoka, Bryan, Choctaw, Haskell, Johnston, candidate to the office of Member-At-Large on Latimer, LeFlore, McCurtain, McIntosh, Marshall, the Board of Governors, or three or more County Pittsburg, Pushmataha and Sequoyah Counties Bars may file appropriate resolutions nominating a (Three-year term: 2011-2013) candidate for this office. Nominee: Gerald C. Dennis, Antlers Not less than 60 days before the opening of the Annual Meeting, 50 or more voting members of Supreme Court Judicial District Eight the Association may file with the Executive Direc- Current: Jim T. Stuart, Shawnee tor a signed petition nominating a candidate for Coal, Hughes, Lincoln, Logan, Noble, the office of President-Elect or Vice President or Okfuskee, Payne, Pontotoc, Pottawatomie three or more County Bar Associations may file and Seminole Counties appropriate resolutions nominating a candidate (Three-year term: 2011-2013) for the office. Nominee: Scott Pappas, Stillwater Nominee: Gregg W. Luther, Shawnee If no one has filed for one of the vacancies, nominations to any of the above offices shall be Supreme Court Judicial District Nine received from the House of Delegates on a peti- Current: W. Mark Hixson, Yukon tion signed by not less than 30 delegates certified Caddo, Canadian, Comanche, Cotton, Greer, to and in attendance at the session at which the Harmon, Jackson, Kiowa and Tillman Counties election is held. (Three-year term: 2011-2013) See Article II and Article III of OBA Bylaws for Nominee: O. Christopher Meyers, Lawton complete information regarding offices, positions, Member-At-Large nominations and election procedure. Current: Jack L. Brown, Tulsa Vacant positions will be filled at the OBA Annual (Three-year term: 2011-2013) Meeting Nov. 17-19. Terms of the present OBA Nominee: Renée DeMoss, Tulsa officers and governors listed will terminate Dec. Nominee: Kimberly K. Hays, Tulsa 31, 2010. Nomination and resolution forms can be Nominee: Mack K. Martin, Oklahoma City found at www.okbar.org.
2172 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 BAR NEWS
OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)
BOARD OF GOVERNORS Member-at-Large Mack K. Martin, Oklahoma City Nominating Petitions have been filed nominat- ing Mack K. Martin for election of Member-at- Large of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2011. A total of 127 signatures appear on the petitions.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA ______NOTICE FOR REAPPOINTMENT OF INCUMBENT UNITED STATES MAGISTRATE JUDGES The current terms of the office of Magistrate Judge Doyle W. Argo, at Oklahoma City, Oklahoma, and Part-Time Magistrate Judge Shon T. Erwin at Lawton, Oklahoma, are due to expire April 16, 2011, and May 31, 2011, respectively. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of each magistrate judge to a new eight-year term and four-year term, respectively. The duties of a magistrate judge in this court include the following: Conduct a wide range of judicial proceedings to expedite the disposition of the civil and criminal caseload of the district court including (1) conduct of most preliminary proceedings in criminal cases; (2) trial and disposition of misdemeanor cases; (3) conduct of various case management, pretrial and evidentiary proceedings as delegated by the district judges of this court; (4) dispositions of consent social security proceedings; and (5) trial and disposition of civil cases upon consent of the litigants. Comments from members of the bar and the public are invited as to whether the incumbent magistrate judges should be recommended by the panel for reappointment by the court and should be directed to: Merit Magistrate Selection Panel c/o U.S. District Clerk of Court United States District Courthouse 200 N.W. 4th Street, Room 1210 Oklahoma City, Oklahoma 73102 You may also e-mail your comments to [email protected]. Comments must be received by October 15, 2010.
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2173 BOARD OF BAR EXAMINERS
New Attorneys Take Oath
oard of Bar Examiners member, Scott E. Williams of Oklahoma City, announces that 307 appli- cants who took the Oklahoma Bar Examination on July 27-28 were admitted to the Oklahoma BBar Association on Thursday, Sept. 23, 2010 or by proxy at a later date. Oklahoma Supreme Court Chief Justice James E. Edmondson administered the Oath of Attorney to the candidates at a swearing-in ceremony at the State Capitol. A total of 371 applicants took the examination. Other members of the Oklahoma Board of Bar Examiners are Tom A. Frailey, Chairperson, Chick- asha; Peggy B. Cunningham, Vice-Chairperson, Yukon; Monte Brown, McAlester; Stephanie C. Jones, Clinton; Bryan Morris, Ada; Loretta F. Radford, Tulsa; Donna L. Smith, Miami and J. Ron Wright, Muskogee. The new admittees are:
Jasper Vaughndale Abbott Elizabeth Wells Burden Coy Dale Coffman, III Anthony Seth Adams Jared Michael Burden Barbara Catherine Coke Joshua Kyle Adams Brian Alan Burget Christina Cabell Cornish James Phillip Albert Meagen Elaine Williams Steven Warren Creager Burrows Steven Michael Albright Michael Cromwell Clark Patrick Bushyhead Everette Chandler Altdoerffer Ross Alan Crutchfield John Edward Cadenhead James Thomas Angel Michalah Rae Davis Laura Ann Calvery Kara Nikole Bacon Sarah Christine Davis Raymond Jason Campbell Virgil R. Barksdale Joshua Brian Deal John Paul Cannon Deidre Lee Neal Barnett Mary Megan Dean Daniel James Card Keith Allen Barrett Laura Beth DeYoung Madison Blaine Carey Heather Lynn Basler Jon Michael Domstead Allyson Susanne Cave Brittany Faye Baucom Megan Courtney Dowd Alexander Chung-Yung Chan Merideth Roberts Bentley John Chandler Lindsay Megan Dowell Kenneth Nollen Bethune Anthony Thomas Childers Cale Aaron Drumright Jonathan Zachary Birdsong Andrew R. Chilson Rickey Ray Dunkin Hunter Kendall Boling George Chiu Jamie K. Dye Donald Christian Bowers John Robert Chubbuck Jessica Rene Earley Kristin D’Ann Box Amanda Lynn Clark Kyle Neil Eastwood Rebecca Elaine Brink Paul Michael Clark Renee Sue Eberhardt Anna Jenson Brooks Clint Aaron Claypole Joshua Allen Edwards Michael Leon Brooks Conor Patrick Cleary Isaac Robertson Ellis Hope Leslie Bryant Joshua Alexander Cline Jared Ray Ellis Brian Nathaniel Buie John Steven Coates Jordan Barrett Ellis
2174 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 Seth Andrew Fellenstein Jeffrey Brian Hubbard Lauren Anne Lindsey Jill Renee Fidelie John William Hubbard Harrison Cole Lujan Isaac Curtis Finkbeiner Sarah Renee Hummel Carlos G. Maldonado Alexander Keith Forbes Jessica V. Hunt Michael K. Manning Heather Lamar Forsyth Deborah Hoover Hupfer Jason Edward Marshall Kristin Foster Allen Lemarr Hutson Jared Wayne Mashaney April Danielle Frago Sara Kristel Jack Jobby Chathanattu Mathew Toby Lee Friesen Mitchell Blaine Janik Michael James Matison Carollann Nichole Gamino Julie Estelle Jansen Erin Ann Maxwell Mary Grace Gannaway Amanda Lynn Janssen Kelsey Marie May Miguel Armando Garcia Bradley Lloyd Johnson Imelda Maynard Alex Douglas Gardine Eliza Beth Johnson Andrew Lee McAlester Grant Chase Garrard Matthew Loren Johnson Lori Elizabeth McConnell Cody Neil Gayer Nicholas Adam Johnson Kimberly Kaye McCullough Angel Nikolaev Gerdzhikov Palmer Christian Johnson Jack Miles McFadden Dearra Godinez Thomas Ryan Johnson Katie Mariah McIntosh Jessica Elizabeth Golden Alex Stuart Kaiser Sean Lawrence McLaughlin Jason Michael Gresham Lindsey Marie Kanaly Daniel Wayne Melnyk Scott Charles Grier Leo Joseph Mendus, II Christy D. Keen Edward Wesley Grimes April Michelle Merrill Kendal Autumn Kelly Corey Brandon Gum Jillian Rae Mershon Pamela Kennedy Lisa Diane Hack Andrea Marie Merten Suzanne Elise Kern Callie Louise Hall Andrew Loar Messer Gregory Carl Ketner Misti Dawn Halverson James Austin Mills Jacob Todd Keyes Holly Marie Hammons Nathan Michael Milner Sabah Salman Khalaf Anna Christine Hanson Lyna Leigh Mitchell Kenneth Lee Kincaid Jennifer Lynn Hawk Robert Mitchener, III Jamie Nicole Kirk Alana Elizabeth Haynes Angela Nicole Monroe Travis James Kirk House Kara Elizabeth Moore Erin Nicole Kee Kirksey Daniel Charles Hays Katherine R. Morelli Peter Joseph Knowles Melissa S. Hedrick Brandi Lynne Morgan Joanne Lafontant-Dooley Christian Diane Helm Scott Van Brunt Morgan Sylvia Ann Lanfair Trevor Ray Henson Kimberly Farabough Nicole Dawn Herron Tyler Kenneth Larsen Mouledoux Megan Rae Hickman Margaret Josephine Laue Gregory Ryan Mulkey Amanda Rene Higgins Sasha Lynn Legere Amanda Renee Mullins Robert Sewell Highsaw Lauren Louise Lembo Amanda Brooke Murphy Megan Harrold Holden John Clark Lennon Todd Anthony Murray Katherine Lee Holey Matthew John Lese Julie Elizabeth Myers Krystina Elizabeth Hollarn Robert Douglas Lewis Sofia Rasik Nagda William Justin Holliday Thomas Winston Liles Anne Welton Nagle
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2175 Elise Schuller Neely Joshua Davis Ritchey Miriam LeeAnn Sweetin Jennifer Lorraine Nelson Mike Chase Ritter John Thomas Synowicki Sean Aaron Nelson Natalia Riveros-Jacobsen Aaron Jason Taber Eric John Nicar Margaret Elizabeth Robertson Eric Lloyd Tabor Brittani Nicole Nichols Raegan Katena Rogers David Matthew Taft John Matthew Nolan Leslie Ann Rountree David Luther Teasdale Paul Michael Northcutt Nedra Georgeann Roye Haylie Denae Treas Brandi Nicole Nowakowski Jordan Ky Russell Robert Andrew Versace George Caleb Overstreet Matthew Christian Russell Matthew David Von Tungeln Amy Elizabeth Pahlka-Sellars Miranda Rachelle Russell Todd Michael Wagner Christine Carol Pappas Nikki Cyter Sack Meredith Ann Walck Aaron Charles Parks Elizabeth Jane Sark James Stuart Wallingford Charles Madison Parrish, III Ryan Todd Scharnell Anthony Neal Walters John Revell Parrish Kirk Reuben Schauer Mary Elizabeth Walters Terra Rae Parten Timothy William Schneidau Leah Michelle Ward Judith Louise Peck Marie Elaine Schuble Amanda Allene Warren Aaron Francis Pembleton James Gregory Brandon Scott Jennifer Marie Warren Kristen Pence Evans Matthew Thomas Sheets Kristen Warren Odin David Perez Grant Denver Sheperd Brandon Michael Watson Kathryn Nicole Perryman Jacob Travis Sherman Melissa Elizabeth Webb Suzanne Reed Phillips Nathan Kirk Shrewsbury Lauren Elizabeth Weber Chad Michael Pinkerton John Daniel Sigman Sarah Elizabeth Weber Daniel Bruce Pond Haley Lynn Simmoneau Matthew Brady Welde Andrew Robert Poole Candice Lynnette Simmons Angela Marie White Zachary Allen Privott Stephanie Anne Singer Trenton Michael White Kelly Carson Pruden Timothy Jared Singleton Andrew John Charles Vanessa Ann Purdom Ashley Lauren Smart Whiteside David Andrew Ragsdale Ryan Houston Smith Chanelle Monique Whittaker Meredith Andrea Rains Liles Valerie Renee Smith John Patrick Wiggins Bartlett Henry Ramsey Joshua Michael Snavely Denielle Nichole Williams Molly Elizabeth Raynor Arlette Srouji Christopher Adam Wills Rebbecca Lyn Redelman Savannah Lynn Stafford Adam Leigh Wilson John Kenneth Reid Christopher Michael Staine Emily Diane Wilson Natalie Krysten Reid Sandra Jean Steffen Bria Deawn Winston Shiloh Renes Tearsa Paige Storms Jeffrey Julian Wolfenbarger Michael Ryan Rennie Dallas Lynn Dale Strimple Steven Chris Wyers Scott A. Reygers Craig Douglas Sundstrom Randall John Yates Max Jackson Rhodes Thomas Arlin Swafford, II Omar Danny Zantout Michael Risley Cullen Dean Sweeney
2176 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 BAR NEWS
OKLAHOMA BAR ASSOCIATION 2011 PROPOSED BUDGET
NOTICE:
Pursuant to Article VII, Section 1 of Claim Form, addressed to the Executive the Rules Creating and Controlling The Director of the OBA, P. O. Box 53036, Oklahoma Bar Association, Deborah Oklahoma City, OK 73152, and post- A. Reheard President-Elect and Budget marked not later than Sixty (60) days Committee Chairperson, has set a Pub- after the approval of the Annual Budget lic Hearing on the 2011 Oklahoma by the Oklahoma Supreme Court or Bar Association budget for Thursday, January 31st of each year, whichever October 14, 2010 at 4:00 p.m. at the shall first occur. Objection Procedure Oklahoma Bar Center, 1901 N. Lin- and form are available at www.okbar. coln Boulevard, Oklahoma City. org/members/budget/htm.
The purpose of the OBA is to engage Upon receipt of a member’s written in those activities enumerated in the objection, the Executive Director shall Rules Creating and Controlling the Okla- promptly review such objection together homa Bar Association (“the Rules”) and with the allocation of dues monies spent the OBA Bylaws (“the Bylaws”). The on the challenged activity and, in con- expenditure of funds by the OBA is lim- sultation with the President, shall have ited both as set forth in the Rules and the discretion to resolve the objection, Bylaws and in Keller v. State Bar of including refunding a pro rata portion California, 496 U.S. 1 (1990). If any of the member’s dues, plus interest or member feels that any actual or pro- schedule a hearing before the Budget posed expenditure is not within such Review Panel. Refund of a pro rata purposes of, or limitations on the OBA, share of the member’s dues shall be for then such member may object thereto the convenience of the OBA, and shall and seek a refund of a pro rata portion not be construed as an admission that of his or her dues expended, plus inter- the challenged activity was or would not est, by filing a written objection with the have been within the purposes of or Executive Director. Each objection must limitations on the OBA. be made in writing on an OBA Dues
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2177 OKLAHOMA BAR ASSOCIATION 2011 PROPOSED BUDGET
REVENUES 2011 PROPOSED BUDGET 2010 BUDGET
ADMINISTRATIVE: Dues and Penalties $ 4,026,450 $ 3,997,000 Investment Income 50,000 80,000 Annual Meeting 70,000 70,000 Commissions and Royalties 30,000 30,000 Mailing Lists and Labels 12,000 10,000 Council on Judicial Complaints - Rent and Services 10,000 10,000 Board of Bar Examiners - Rent and Services 15,000 15,000 Legal Intern Fees 7,000 7,000 Other 17,000 $ 4,237,450 10,000 $ 4,229,000
OKLAHOMA BAR JOURNAL AND PUBLIC INFORMATION: Oklahoma Bar Journal: Advertising Sales 135,000 135,000 Subscription Sales 16,000 16,000 Other Miscellaneous 500 151,500 500 151,500
LAW RELATED EDUCATION: P.A.C.E. Institute Grant - 12,000 Other Grants 114,083 114,083 124,700 136,700
CONTINUING LEGAL EDUCATION: Seminars and Materials 1,140,000 1,090,000
GENERAL COUNSEL: Disciplinary Reinstatements 15,000 15,000 Out of State Attorney Registration 254,000 269,000 250,900 265,900
MANDATORY CONTINUING LEGAL EDUCATION: Filing Penalties 98,000 96,000 Provider fees 77,000 175,000 78,000 174,000
PRACTICE ASSISTANCE Consulting Fees and Material Sales 3,000 6,500 Diversion Program 4,000 7,000 2,000 8,500
COMMITTEES AND SPECIAL PROJECTS: Mock Trial Program Fees 48,000 53,000 Lawyers Helping Lawyers 29,000 27,000 Insurance Committee 53,000 55,000 Women-in -Law Conference 50,000 50,000 Solo-Small Firm Conference 50,000 50,000 Uniform Law Committee - 1,500 Law Student Division - 230,000 1,000 237,500
TOTAL REVENUES $ 6,324,033 $ 6,293,100
2178 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 OKLAHOMA BAR ASSOCIATION 2011 PROPOSED BUDGET
EXPENDITURES 2011 PROPOSED BUDGET 2010 BUDGET
ADMINISTRATIVE: Salaries and Benefits $ 942,332 $ 948,427 Annual Meeting 140,000 130,000 Board of Governors and Officers 138,000 141,000 Conferences and Organizational Development 18,000 18,000 Legislative Monitoring 8,000 10,000 General and Administrative: Utilities 100,000 103,600 Insurance 46,500 46,500 Data Processing 64,800 66,642 Building and Equipment Maintenance 74,000 77,500 Postage 44,000 48,000 Copier 48,000 65,000 Supplies 36,000 25,000 Grounds Maintenance 7,000 7,000 Audit 16,500 15,000 Miscellaneous 71,200 69,600 Overhead Allocated to Departments (472,317)$ 1,282,015 (468,602)$ 1,302,667
OKLAHOMA BAR JOURNAL AND PUBLIC INFORMATION: Salaries and Benefits 229,125 219,902 Oklahoma Bar Journal: Weekly Issue Printing 275,000 295,000 Special Issue Printing 160,000 155,000 Other 3,000 3,000 Public Information Projects 0 0 Newsclip Service 1,600 1,600 Pamphlets 10,000 10,000 Photography 500 500 Supplies 1,000 1,000 Miscellaneous 10,750 10,750 Allocated Overhead 84,913 775,888 85,863 782,615
LAW RELATED EDUCATION: Salaries and Benefits 118,037 116,885 P.A.C.E. Institute Program 0 12,000 Other Grant Projects 116,583 104,950 Training, Development and Travel 25,500 27,000 Newsletter 10,000 10,000 Miscellaneous 9,600 7,600 Allocated Overhead 49,699 329,419 45,585 324,020
CONTINUING LEGAL EDUCATION: Salaries and Benefits 399,238 403,090 Meeting Rooms and Food Service 150,000 150,000 Seminar Materials 60,000 60,000 Co-sponsorship fees 40,000 40,000 Brochures and Bulk Mail 90,000 75,000 Speakers 100,000 100,000 Binders 18,000 23,000 Audio/Visual 12,000 12,000 Department Travel 7,000 7,000 Supplies 3,500 3,500 Miscellaneous 29,900 29,400 Allocated Overhead 124,623 1,034,261 133,988 1,036,978
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2179 OKLAHOMA BAR ASSOCIATION 2011 PROPOSED BUDGET
EXPENDITURES 2011 PROPOSED BUDGET 2010 BUDGET
DISCIPLINARY: Salaries and Benefits $ 990,631 $ 958,373 Investigation and Prosecution 50,500 48,500 PRC Travel and Meetings 8,500 7,500 PRT Travel and Meetings 7,500 7,500 Department Travel 6,250 5,700 Library 7,000 6,000 Supplies 8,000 8,000 Miscellaneous 6,750 7,250 Allocated Overhead 113,967$ 1,199,098 112,300$ 1,161,123
MANDATORY CONTINUING LEGAL EDUCATION: Salaries and Benefits 199,455 191,697 Printing & Compliance Reporting 3,000 3,000 Supplies 1,000 1,000 Commission Travel 1,500 1,500 Miscellaneous 5,050 6,000 Allocated Overhead 49,558 259,563 45,433 248,630
PRACTICE ASSISTANCE Salaries and Benefits 258,536 247,342 OBA-NET Expense 6,000 3,000 Dues & Subscriptions 2,600 2,600 Library 2,450 2,000 Computer Software 1,700 1,600 Supplies 1,150 1,200 Travel and Conferences 19,300 16,550 Miscellaneous 3,650 3,500 Allocated Overhead 49,557 344,943 45,433 323,225
COMMITTEES AND SPECIAL PROJECTS: Law Day 43,000 43,000 Women-in -Law Conference 60,000 60,000 Solo-Small Firm Conference 50,000 50,000 Mock Trial Program 45,000 54,000 FastCase Legal Research 85,000 85,000 General Committees 60,250 63,750 Lawyers Helping Lawyers Program 48,000 52,000 Law Student Division 0 2,000 Young Lawyers Division 85,000 476,250 85,000 494,750
CLIENT SECURITY FUND CONTRIBUTION 100,000 100,000
OKLAHOMA BAR CENTER RENOVATIONS 220,000 242,000
2013 SOUTHERN CONFERENCE OF BAR PRESIDENTS FUND 15,000 0
FURNITURE, FIXTURES AND OTHER CAPITAL IMPROVEMENTS 221,000 95,575
TOTAL EXPENDITURES $ 6,257,437 $ 6,111,583
TOTAL REVENUES OVER (UNDER) EXPENDITURES $ 66,596 $ 181,516
2180 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 CLASSIFIED ADS
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HANDWRITING IDENTIFICATION LUXURY OFFICE SPACE - THREE OFFICES: One ex- POLYGRAPH EXAMINATION ecutive corner suite with fireplace ($1,200/month) and Board Certified Court Qualified two large offices ($850 each/month). All offices have Diplomate — ABFE Former OSBI Agent crown molding and beautiful finishes. A fully furnished Life Fellow — ACFE FBI National Academy reception area, conference room and complete kitchen are included, as well as a receptionist, high-speed inter- Arthur D. Linville (405) 636-1522 net, fax, cable television and free parking. Completely secure. Prestigious location at the entrance of Esperan- INTERESTED IN PURCHASING PRODUCING & za located at 153rd and North May, one mile north of NON-PRODUCING Minerals; ORRI; O & G Interests. the Kilpatrick Turnpike and one mile east of the Hefner Please contact: Patrick Cowan, CPL, CSW Corporation, Parkway. Contact Gregg Renegar at (405) 285-8118. P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) 755-7200; Fax (405) 755-5555; E-mail: [email protected]. DOWNTOWN OKC WITHIN WALKING DISTANCE TO COURTHOUSE. Parking, copier, fax, conference OF COUNSEL LEGAL RESOURCES — SINCE 1992 — room, reception area, kitchen and phone system. Two Exclusive research & writing. Highest quality: trial and offices available. Corner of Reno and Walker. James appellate, state and federal, admitted and practiced Dunn (405) 239-1000. U.S. Supreme Court. Over 20 published opinions with numerous reversals on certiorari. MaryGaye LeBoeuf SOUTH OKC OFFICE SPACE in a building complex (405) 728-9925, [email protected]. surrounding a tranquil park-like setting in the Willow- brook Gardens Professional Building complex located EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL on South Walker Avenue just south of I-240. No long- Fitzgerald Economic and Business Consulting term lease required. Variety of space available from as Economic Damages, Lost Profits, Analysis, Business/ little as one office up to as much as 5,000 square feet. Pension Valuations, Employment, Discrimination, Renovated in 2007. Carpeted floors, offices range from Divorce, Wrongful Discharge, Vocational Assessment, small/moderate to large, large reception area, built-ins, Life Care Plans, Medical Records Review, Oil and Gas kitchen, and offices with a view! Call (405) 239-3800. Law and Damages. National, Experience. Call Patrick Fitzgerald. (405) 919-2312. OFFICE SHARE MIDTOWN OKLAHOMA CITY OFFICE AVAILABLE Appeals and litigation support — Expert for office sharing. We are a small well-established in- research and writing by a veteran generalist who surance defense law firm. We are seeking one to two thrives on wide variety of projects, big or small. additional attorneys with their own client base with Cogent. Concise. Nancy K. Anderson, (405) 682-9554, whom to share office space and staff. All inquiries will [email protected]. be kept in strict confidence. Please send inquiries to “Box L,” Oklahoma Bar Association, P.O. Box 53036, FREELANCE BOOK LAWYER — with highest rating Oklahoma City, OK 73152. and with 25+ years’ experience on both sides of the table is available for strategic planning, legal research and SHARED LUXURY OFFICE SPACE: Luxury all writing in all state and federal trial and appellate courts around...Granite, Wood, Slate Tile. Feel like you are and administrative agencies. Admitted and practiced working out of a beautiful home. Mix and match before the United States Supreme Court. Janice M. offices to suit your needs. We have an extra large Dansby, 405-833-2813, [email protected]. upstairs space ($1,300), large corner office ($1,000), large office ($900), and 2 small offices ($695 each) as LEGAL MALPRACTICE REFERRALS APPRECIATED: well as a reception area available. Included are an ex- Michael Jordan Fairchild, Attorney at Large, 1519 S. quisite conference room, full kitchen and shared ame- Elwood Ave., Tulsa, OK 74119 (918) 584-7277. nities available (phones, fax, cable and copier). Times are tough...we’re willing to work with you! Quail Want To Purchase Minerals AND OTHER Pointe Suites – 13924 Quail Pointe Drive. Just West of OIL/GAS INTERESTS. Send details to: P.O. box 13557, May & Memorial off the Kilpatrick Turnpike. Please Denver, CO 80201. call Gina (405) 826-8188. OFFICE SPACE POSITIONS AVAILABLE MIDWEST CITY LAW FIRM HAS SPACE FOR RENT. LESTER, LOVING & DAVIES PC, an AV-rated law Perfect for new attorney or sole practitioner. Library, firm, seeks an associate with minimum 5-7 years liti- two conference rooms, high speed internet, reception- gation experience. Send resume to Lester, Loving & ist, kitchen. Call Roger 732-6000. Davies PC, 1701 South Kelly Ave., Edmond, OK 73013.
Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2181 POSITIONS AVAILABLE POSITIONS AVAILABLE BUSY TULSA LAW FIRM SEEKS LITIGATION AT- GOVERNMENT AND COMMERCIAL CONTRACT- TORNEY with 2+ years experience to join our growing ING COMPANY seeks paralegal. Paralegal will work practice. Exceptional writing skills a must. Send re- closely with the general counsel. Paralegal certificate sume, writing sample and salary requirements to required. Must possess 3-5 years of experience in legal [email protected]. research and writing. Experience in federal contracts a plus. Full-time position. Please submit a cover letter, SECREST HILL BUTLER & SECREST, an AV-Rated in- resume, writing sample, and salary requirement to surance defense firm, is seeking an associate with 5+ [email protected]. years of experience. Emphasis on legal research, writ- ing and litigation. Experience in employment law an ASSISTANT ATTORNEY GENERAL, PAMFCU. Mini- asset. Salary to be commensurate with experience. All mum 3 years prosecutorial experience. Candidate will applications will remain confidential. Contact Joe Pick- represent the interests of the state of Oklahoma by pros- ard at [email protected] or (918) 494-5905. ecuting provider abuse, neglect, financial exploitation and Medicaid fraud. Candidate should process their TRIAL ATTORNEY — COMMERCIAL/BUSINESS — own pleadings and correspondence using Word/Word- OKLAHOMA CITY: Private firm seeks 10+ years or Perfect. Experience with healthcare fraud or medical more trial attorney; employment or securities litigation issues preferred. See website at www.oag.ok.gov for preferred, other business/commercial experience ac- more details. Send resume and writing sample to W.A. cepted, must have 1st chair jury trial and federal court Drew Edmondson, Attorney General, 313 N.E. 21st experience. Partner/Dir. level and lucrative compensa- Street, Oklahoma City, OK 73105. Salary commensurate tion plan offered. E-mail word resume, trial experience with experience in accordance with office pay scale. and salary requirements to: [email protected]. BUSY AV-RATED OKC/TULSA insurance defense SMALL LAW FIRM HAS A POSITION AVAILABLE for firm seeks associate with 3 to 10 years experience for an attorney with 4-8 years of litigation experience. This OKC office. Excellent opportunity for the right person. position will involve specialized litigation in the field of Personal injury/insurance defense/civil litigation ex- eminent domain. Qualified candidate must have exten- perience helpful. Competitive salary and benefits. Send sive litigation experience. To be considered, candidate resume to Wilson, Cain & Acquaviva, 300 N.W. 13th must also possess experience in drafting motions, briefs Street, Suite 100, Oklahoma City, OK 73103. and conducting all phases of pretrial discovery. Please send resume and salary requirements to “Box K,” Okla- DOBBS & MIDDLETON, Staff Counsel for Farmers homa Bar Association, P.O. Box 53036, Oklahoma City, since 1993, seeks an associate with 2-5 years of litiga- OK 73152. tion experience, including 1st chair trial experience. Candidates must have good written, verbal, people AV-RATED FIRM IN THE TULSA AREA is seeking an and computer skills. Experience in insurance defense attorney with two years experience. Applicants should an asset. The position requires some same day in-state have good communication skills. Please send resumes travel. The ideal candidate will assume an immediate and salary requirements to “Box O,” Oklahoma Bar As- case load with increasing responsibilities. Farmers of- sociation, P.O. Box 53036, Oklahoma City, OK 73152. fers an excellent starting salary and benefits package EMPLOYMENT LAW AND CIVIL RIGHTS FIRM in and is an equal opportunity employer. All applicants Oklahoma City is seeking an associate attorney with must apply, in confidence, and submit a resume via litigation experience (3-5 years preferred) who is www.farmers.com. Potential candidates may contact willing and capable of taking on an active caseload. our firm to discuss the position and expectations. Please e-mail salary requirements and resume to [email protected] or mail resume to Eddy Law FOR SALE Firm PC, 228 Robert S. Kerr Ave., Suite 220, Oklahoma City, OK 73102. QUALITY OFFICE FURNITURE FOR SALE: Beautiful IMMEDIATE OPENING, DISABILITY ATTORNEY: all-wood reception center with built-in drawers (113” x Well-established disability law firm in Northeast Okla- 95” x 42”), leather swivel chairs, area rugs, file cabinets, homa seeking attorney. Knowledge of disability law etc. (405) 286-0251 ext. 25 or 26. not required. Competitive compensation package. Please send resume to [email protected]. THE LAW FIRM OF LOVE, BEAL & NIXON, PC is ac- cepting resumes for a paralegal position for the firm’s Northwest Oklahoma City practice. The practice is pri- marily creditor rights/collection related. Three to five years experience. Degree preferred. Competitive pay and benefits. Please send resumes and salary require- ments to [email protected].
2182 The Oklahoma Bar Journal Vol. 81 — No. 26 — 10/2/2010 Vol. 81 — No. 26 — 10/2/2010 The Oklahoma Bar Journal 2183