Volume 84 u No. 13 u May 11, 2013 You are not alone. Topic: The Challenges of Work, Relationships and Parenting Thursday, June 6

Oklahoma City Location - 6 p.m. Office of Tom Cummings 701 N.W. 13th St. Oklahoma City, OK Tulsa Location - 7 p.m. University of Tulsa College of Law John Rogers Hall 3120 E. 4th Pl. Rm. 206, Tulsa

Contact Kim Reber @ 405-840-0231 • [email protected] LAWYERS HELPING LAWYERS DISCUSSION GROUP

914 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 OFFICER S & BOARD OF GOVERNORS James T. Stuart, President, Shawnee Renée DeMoss, President-Elect, Tulsa events Calendar Dietmar K. Caudle, Vice-President, Lawton Cathy M. Christensen, Immediate Past President, Oklahoma City MAY 2013 Sandee Coogan, Norman Gerald C. Dennis, Antlers 14 OBA Law Day Committee meeting; 12 p.m.; Oklahoma Bar Center, Robert S. Farris, Tulsa Oklahoma City; Contact Richard Vreeland 405-360-6631 Robert D. Gifford II, Oklahoma City Kimberly Hays, Tulsa OBA Legal Intern Committee meeting; 3 p.m.; Oklahoma Bar Center, Douglas L. Jackson, Enid Oklahoma City with teleconference; Contact Candace Blalock 405-238-0143 O. Chris Meyers II, Lawton D. Scott Pappas, Stillwater 15 OBA Women in Law Committee meeting; 4 p.m.; Oklahoma Bar Nancy S. Parrott, Oklahoma City Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Kim Hays Bret A. Smith, Muskogee 918-592-2800 Richard D. Stevens, Norman Linda S. Thomas, Bartlesville Joseph M. Vorndran, Shawnee, 15-16 Legal Aid Services of Oklahoma seminar; 8:30 a.m.; Oklahoma Bar Chairperson, OBA/Young Lawyers Division Center, Oklahoma City; Contact Cindy Goble 405-488-6823 BAR Center Staff 16 OBA Technology Committee meeting; 3 p.m.; Oklahoma Bar Center, John Morris Williams, Executive Director; Oklahoma City with teleconference; Contact Gary Clark 405-744-1601 Gina L. Hendryx, General Counsel; Jim Calloway, Director of Management Assistance Program; OBA Professionalism Committee meeting; 3:30 p.m.; Oklahoma Bar Craig D. Combs, Director of Administration; Center, Oklahoma City with teleconference; Contact Richard Woolery Susan Damron Krug, Director of Educational Programs; Beverly Petry Lewis, Administrator 918-227-4080 MCLE Commission; Carol A. Manning, Director of Communications; Travis Pickens, Ethics Counsel; 17 OBA Board of Governors meeting; 8:30 a.m.; Oklahoma Bar Center, Robbin Watson, Director of Information Technology; Oklahoma City; Contact John Morris Williams 405-416-7000 Jane McConnell, Coordinator Law-related Education; Loraine Dillinder Farabow, Tommy Humphries, Oklahoma Bar Foundation Trustee meeting; 1 p.m.; Oklahoma Bar Tina Izadi, Katherine Ogden, Steven Sullins, Center, Oklahoma City; Contact Nancy Norsworthy 405-416-7070 Assistant General Counsels; Tommy Butler, Tanner Condley, Sharon Orth, Dorothy Walos and OBA Rules of Professional Conduct Committee meeting; 3 p.m.; Krystal Willis, Investigators Oklahoma Bar Center, Oklahoma City; Contact Paul Middleton Manni Arzola, Debbie Brink, Emily Buchanan, 405-235-7600 Susan Carey, Johnny Marie Floyd, Matt Gayle, Dieadra Goss, Brandon Haynie, Suzi Hendrix, 18 OBA Title Exam Standards Committee meeting; 9 a.m.; Tulsa County Misty Hill, Debra Jenkins, Durrel Lattimore, Bar Center, Tulsa; Contact Jeff Noble 405-942-4848 Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Larry Quinn, Lori Rasmussen, Tracy Sanders, Mark Schneidewent, Jan 20 OBA Litigation Section meeting; 12 p.m.; Oklahoma Bar Center, Thompson, Laura Willis & Roberta Yarbrough Oklahoma City and OSU Tulsa, Tulsa; Contact Renée DeMoss 918-595-4800 EDITORIAL BOARD OBA Solo and Small Firm Conference Planning Committee Editor in Chief, John Morris Williams, News meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact & Layout Editor, Carol A. Manning, Editor, Collin Walke 405-235-1333 Melissa DeLacerda, Stillwater, Associate Editors: Dietmar K. Caudle, Lawton; Sandee Coogan, OBA Alternative Dispute Resolution Section meeting; 4 p.m.; Norman; Emily Duensing, Tulsa; Pandee Ramirez, Okmulgee; Mark Ramsey, Oklahoma Bar Center, Oklahoma City; Contact Michael O’Neil 405-232-2020 Claremore; Judge Megan Simpson, Buffalo; Joseph M. Vorndran, Shawnee; Judge Allen J. For more events go to www.okbar.org/calendar Welch, Oklahoma City; January Windrix, Poteau NOTICE of change of address (which must be The Oklahoma Bar Association’s official website: www.okbar.org in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All rights reserved. Copyright© 20082013 Oklahoma Bar Association. or ads, news stories, articles and all mail items The design of the scales and the “Oklahoma Bar Association” encircling the should be sent to the Oklahoma Bar Association, scales are trademarks of the Oklahoma Bar Association. Legal articles carried P.O. Box 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association 405-416-7000 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Toll Free 800-522-8065 FAX 405-416-7001 a month in january, February, March, April, May, August, Septem- Continuing Legal Education 405-416-7006 ber, October, November and December and bimonthly in June and Ethics Counsel 405-416-7055 July.y bbyy thethe OOklahoma BBar AAssociation,, 19011901 N. Lincoln Boulevard, General Counsel 405-416-7007 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- Law-related Education 405-416-7005 homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Lawyers Helping Lawyers 800-364-7886 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Mgmt. Assistance Program 405-416-7008 tions are $60$55 per year except for law students registered with the Mandatory CLE 405-416-7009 Oklahoma Bar Association, who may subscribe for $25. Active mem- OBJ & Communications 405-416-7004 ber subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessar- Board of Bar Examiners 405-416-7075 ily that of the Oklahoma Bar Association, or the Oklahoma Bar Oklahoma Bar Foundation 405-416-7070 Journal Board of Editors.

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table of contents May 11, 2013 • Vol. 84 • No. 13 page

915 Events Calendar

918 Index to Court Opinions

919 Supreme Court Opinions

924 Sovereignty Symposium 2013

928 Court of Criminal Appeals Opinions

936 Judicial Nominating Commission Elections

940 Court of Civil Appeals Opinions

958 Disposition of Cases Other Than by Publication

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 917 Index to Opinions of Supreme Court

2013 OK 33 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Com- plainant, v. WILLIAM G. BERNHARDT, Respondent. SCBD-6001...... 919

2013 OK 32 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION Com- plainant, v. CRAIG STEVEN KEY, Respondent. SCBD-6000...... 919

Index to Opinions of Court of Criminal Appeals

2013 OK CR 7 THE STATE OF OKLAHOMA, Appellant, v. ROBERT HARRELL BASS, JR., Appellee. Case No. S-2012-363...... 928

Index to Opinions of Court of Civil Appeals

2013 OK CIV APP 35 IN THE MATTER OF THE ESTATE OF DONALD R. ROZELL: Plaintiff/Appellant, vs. THE BETTY ROZELL REVOCABLE TRUST AND EARL ROZELL, TRUSTEE, Defendants/Appellees. Case No. 109,331...... 940

2013 OK CIV APP 36 IN RE THE MARRIAGE OF: DIANA HILLHOUSE, Petitioner/ Appellant, vs. JEFFREY MICHAEL FITZPATRICK, Respondent, and MIKE FITZPAT RICK and JANIE FITZPATRICK, Intervenors/Appellees. Case No. 109,565...... 944

2013 OK CIV APP 37 EOR DOMESTIC, LLC, a Delaware limited liability company, Plain- tiff/Appellee, vs. DAVID SHROFF, d/b/a EXCALIBUR, INC.; AVONDALE OPER- ATING CO., an Oklahoma corporation; and EXCALIBUR XYZ, INC., Defendants Appellants. Case No. 110,100...... 947

2013 OK CIV APP 38 HSRE-PEP I, LLC, a Delaware limited liability company, substituted as Plaintiff for FIRST UNITED BANK AND TRUST CO., an Oklahoma banking asso- ciation, Plaintiff/Appellant, vs. HSRE-PEP CRIMSON PARK LLC, a Delaware limit- ed liability company, substitute as Defendant for FIRST UNITED PROPERTY HOLD- ING COMPANY, LLC, SERIES B, a series of First United Property Holding, LLC, an Oklahoma limited liability company; BENEFIT BANK, Frisco Branch; AIRTIME INC., an Oklahoma corporation; MITCHELL GEE, an individual; SAUNDRA DE- SELMS, Treasurer for Cleveland County, Oklahoma; and the BOARD OF COUNTY COMMISSIONERS OF CLEVELAND COUNTY, OKLAHOMA, Defendants, and BENEFIT BANK, Plaintiff/Appellee, vs. ADUDDELL DEVELOPMENT GROUP, LLC; ODG-OU, LLC; FIRST UNITED BANK & TRUST CO.; FIRST UNITED PROP- ERTY HOLDING COMPANY, LLC, SERIES B, a series of First United Property Hold- ing Company, LLC; MITCHELL GEE d/b/a AIRTIME, INC.; GARY D. BROOKS; KENNY W. THOMAS; DAVID W. ADUDDELL; and J. GLENN RANKIN, Defen- dants. Case No. 110,288; (Comp. w/109,777)...... 952

2013 OK CIV APP 39 IN RE GUARDIANSHIP OF KANDEE ANN MARY CATHERINE BOROVETZ. KANDEE ANN MARY CATHERINE BOROVETZ, Ward, Applicant/ Appellant, vs. FRANK BOROVETZ, JR., Limited Co-Guardian, Respondent/Appel- lee. Case No. 110,304...... 955

918 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2013 OK 33 show cause in writing why a final order of disci- pline should not be imposed, to request a hear- STATE OF OKLAHOMA ex rel. ing, or to file a brief and any evidence tending to OKLAHOMA BAR ASSOCIATION, mitigate the severity of discipline. The OBA has Complainant, v. WILLIAM G. BERNHARDT, until June 11, 2013, to respond. Respondent. DONE BY ORDER OF THE SUPREME SCBD-6001. May 6, 2013 COURT this 6th day of May, 2013. ORDER OF IMMEDIATE INTERIM /s/ Tom Colbert SUSPENSION CHIEF JUSTICE The Oklahoma Bar Association (OBA), in com- Colbert, C.J., Reif, V.C.J., Watt, Winchester, pliance with Rule 7.1 and 7.2 of the Rules Gov- Edmondson, Taylor, Combs and Gurich, JJ., erning Disciplinary Proceedings (RGDP), has Concur. forwarded to this Court certified copies of the Information, Order deferring judgment and sen- Kauger, J., Not Participating. tence on a plea of guilty in which William G. 2013 OK 32 Bernhardt, pled guilty to the felony charges of (1) Driving Under the Influence of Alcohol, STATE OF OKLAHOMA ex rel. under 47 O.S. 11-902; and (2) Attempting to OKLAHOMA BAR ASSOCIATION Elude a Police Officer, under 21 O.S. 540A(B); Complainant, v. CRAIG STEVEN KEY, and (3) one misdemeanor count of Transporting Respondent. an Open Container of Alcohol, a violation of 21 O.S. 1220. Rule 7.3 of the RGDP provides: “Upon SCBD-6000. May 6, 2013 receipt of the certified copies of Judgment and ORDER APPROVING RESIGNATION Sentence on a plea of guilty, order deferring judgment and sentence, indictment or informa- ¶1 On April 25, 2013, the Oklahoma Bar tion and the judgment and sentence, the Supreme Association (Bar Association), notified the Court shall by order immediately suspend the Court that the respondent, Craig Steven Key lawyer from the practice of law until further (Attorney/respondent), resigned from the order of the Court.” Oklahoma Bar Association pending disciplin- ary proceedings. The disciplinary proceedings Having received certified copies of the required relate to: misappropriation of client funds; fail- paperwork, this Court orders that William G. ure to provide accounting of settlement funds, Bernhardt is immediately suspended from the failure to communicate with clients, conflict of practice of law. William G. Bernhardt is directed interest, and committed forgery and embezzle- to show cause, if any, no later than May 17, 2013, ment. why this order of interim suspension should be set aside. See RGDP Rule 7.3. The OBA has until ¶2 THE COURT FINDS: May 28, 2013, to respond. 1. The respondent has voluntarily resigned Rule 7.2 of the RGDP provides that a certified from the Oklahoma Bar Association by copy of a plea of guilty, an order deferring judg- complying with Rule 8.1 and Rule 8.2, ment and sentence, or information and judg- Rules Governing Disciplinary Proceedings, ment and sentence of conviction “shall consti- 5 O.S. Supp. 2008 Ch. 1, App. 1-A. tute the charge and be conclusive evidence of the The respondent’s affidavit of resignation commission of the crime upon which the judg- reflects that: a) it was freely and voluntarily ment and sentence is based and shall suffice as rendered; b) he was not subject to coercion the basis for discipline in accordance with these or duress; and c) he was fully aware of the rules.” Pursuant to Rule 7.4 of the RGDP, Wil- consequences of submitting the resignation. liam G. Bernhardt has until May 27, 2013, to

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 919 2. The respondent states that he is aware of title suit, failed to communicate with requests the following grievances against him: for information as to the status of the matter, made repeated misrepresentations about DC 12-056: Grievance by James Dale Morn- refunding the unearned fee of $1,000.00 ingstar: regarding allegations that despite retainer and that he may have converted repeated requests, he failed to provide his said funds to his own personal use. client with an accounting of $57,238.00 in settlement funds he received on the client’s DC 13-064: Grievance by Michelle Roux: behalf since September of 2010. Said griev- regarding allegations he neglected her fam- ance further alleges he may have misap- ily law matter and failed to earn a $2,500.00 propriated said funds for personal use. retainer fee. DC 12-068: Grievance by Tara Johnson: DC 13-065 Grievance by Steve and Wendy regarding allegations that he neglected cli- Mays: regarding allegations he missed the ent’s case and failed to earn or refund a statute of limitations on their personal $3,500.00 retainer fee she paid on or about injury claim, lied about settling their case, November 30, 2011. The grievance further and that he gave his clients a check from alleges he failed to diligently communicate his client trust account at the First Bank of with client despite repeated requests for Chandler (Account #143477, Check #1146) action or information regarding the status in the amount of $3,990.30 on October 11, of case or refund of the retainer. 2011 and a cashier’s check from First Bank of Chandler (No. B 09276 in the amount of DC 12-246: Grievance by the Office of the $8,642.00) on June 12, 2012 in an effort to General Counsel: regarding a report from hide his neglect of their legal matter. First Bank of Chandler, received by the Oklahoma Bar Association on November 19, DC 13-066: Grievance by the Office of the 2012, that client trust account had been over- General Counsel: regarding criminal charg- drawn since October 15, 2012 in the amount es filed against him in Lincoln County of $5,482.24. Said grievance further alleges District Court Case No. CF-2013-137 alleg- he failed to provide a written response to the ing he committed the felony crimes of (I) inquiry to the Office of the General Counsel Delivery of a Forged Instrument and (II) as required by Rule 5.2, RGDP. Embezzlement (See also DC 12-56, supra.) DC 13-0009: Grievance by Jennifer Savage: DC 13-067: Grievance by the Office of the regarding allegations he failed to promptly General Counsel: regarding criminal charg- handle, account for, and safe keep settle- es filed against him in Lincoln County ment funds in which Accident Care & District Court Case No. CF-2013-138 alleg- Treatment Center of Oklahoma City, OK ing he committed the felony crimes of (I) claimed an interest. Said grievance further Conspiracy to Commit Larceny of Domes- alleged his trust account check written to tic Animals & Implements of Husbandry Accident Care & Treatment Center in the and (II) Larceny of Domestic Animals & amount of $8,391.28 was returned for insuf- Implements of Husbandry. ficient funds on January 7, 2013. DC 13-068: Grievances by the Office of the DC 13-014 Grievance by Steven Lemar General Counsel: regarding criminal charg- Mitchell: regarding allegations he neglect- es filed against him in Lincoln County ed client’s lawsuit which resulted in its District Court Case No. CF-2013-138 alleg- dismissal and that he failed to communi- ing he committed the felony crimes of (I) cate with client regarding concerns about Delivery of a Forged Instrument and (II) the case. Said grievance further alleges he Embezzlement. had a conflict of interest in representing 3. The respondent states in his affidavit of Mr. Mitchell’s wife in a divorce proceeding resignation that he is aware that the allega- because he had previously had a conversa- tions of conduct, if proven, would be a tion with Mr. Mitchell about the possibility violation of Rules 1.1, 1.3, 1.4, 1.5, 1.6, 1.7, of representing him in the divorce wherein 1.15, 1.16(d), 3.2, 8.1(b), and 8.4 of the Okla- he divulged confidential information. homa Rules of Professional Conduct, 5 O.S. DC 13-052: Grievance by Joseph T. Wood: Supp. 2008, Ch. 1, App. 3-A and Rules 1.3 regarding allegations he neglected a quiet and 5.2 of the Rules Governing Disciplin-

920 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 ary Proceedings, 5 O.S. Supp. 2008, Ch. 1, be stricken from the roll of attorneys. Because App. 1-A and of his oath as an attorney. resignation pending disciplinary proceedings is tantamount to disbarment, the respondent 4. The respondent’s resignation pending may not make an application for reinstatement disciplinary proceedings is in compliance prior to the expiration of 5 years from the date with all of the requirements set forth in of this order. Pursuant to Rule 9.1, Rules Gov- Rule 8.1, Rules Governing Disciplinary erning Disciplinary Proceedings, 5 O.S. Supp. Proceedings, 5 O.S. Supp. 2008, Ch. 1, App. 2008, Ch. 1, App. 1-A, the respondent shall 1-A and it should be approved. notify all of his clients, if any, having legal busi- 5. The official roster address of the respon- ness pending with him within 20 days, by cer- dent as shown by the Oklahoma Bar Asso- tified mail, of his inability to represent them ciation is: Craig Steven Key, 910 East 1st and of the necessity for promptly retaining Street, Chandler, OK 74834. new counsel. The Bar Association has waived the imposition of costs in this proceeding. 6. The Bar Association has waived the imposition of minimal costs and the respon- DONE BY ORDER OF THE SUPREME dent asks that any costs incurred be waived COURT THIS 6th DAY OF MAY 2013. in this proceeding. /s/ Tom Colbert IT IS THEREFORE ORDERED, ADJUDGED, CHIEF JUSTICE AND DECREED that Craig Steven Key resig- Colbert, C.J., Reif, V.C.J., Kauger, Watt, Win- nation pending discipline be approved. chester, Edmondson, Taylor, Gurich, JJ., concur. IT IS FURTHER ORDERED, ADJUDGED, Combs, J., recused. AND DECREED that Craig Steven Key’s name

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Associate District Judge Fourteenth Judicial District Pawnee County, Oklahoma This vacancy is created by the retirement of the Honorable Matthew D. Henry effective August 1, 2013. To be appointed an Associate District Judge, an individual must be a registered voter of the applicable judicial district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, the appointee must have had a minimum of two years experience as a licensed practicing attorney, or as a judge of a court of record, or combination thereof, within the State of Oklahoma. Application forms can be obtained on line at www.oscn.net by following the link to the Oklahoma Judicial Nominating Commission or by contacting Tammy Reaves, Admin- istrative Office of the Courts, 2100 North Lincoln, Suite 3, Oklahoma City, OK 73105, (405) 556-9300, and should be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, May 31, 2013. If applications are mailed, they must be postmarked by midnight, May 31, 2013. Heather Burrage, Chairman Oklahoma Judicial Nominating Commission

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 921 The Oklahoma Criminal Defense Lawyers Association Presents The 21th Annual Patrick A. Williams Criminal Defense Institute

June 27 & 28, 2013 The Skirvin Hilton Hotel Oklahoma City, OK MCLE Credit x OK - 12 Hours, includes 6 hours of Mandated Juvenile Law training* and 1 hour ethics**

Location The Skirvin Hilton Hotel has a room rate of $129.00 for the CDI. This rate is good until May 28th. For room reservations call 405-272-3040 or online. Reference Group Code: OCDLA

Registration Fees -OIDS Contractors/ OCDLA Member _____ $150.00 -Non Member/Non OIDS _____ $200.00 -Registration after June 18th _____ $175.00 OCDLA/OIDS _____ $225.00 Non OCDLA/OIDS

Full Name: ______OBA#:______

Address: ______

City: ______State______Zip: ______

Phone: ______Email: ______

Visit www.OCDLAOKLAHOMA.com to register or mail this ad with payment to: OCDLA, PO BOX 2272, OKC, OK 73101

922 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 2013 CRIMINAL DEFENSE INSTITUTE SCHEDULE

Thursday, June 27, 2012 Main Session

8:30 - 9:00 am Welcome Michael Haggerty II, OCDLA President, Bob Ravitz, Chief Public Defender OK County Jack Zanerhaft, Chief Public Defender Tulsa County, Joe Robertson, OIDS 9:00 - 10:40 am Voir Dire: The Marriage of Colorado and Wyoming Cindy Viol, OIDS & David Smith, Norman 10:50 - 11:40 am Ethically Addressing Issues of Prosecutorial Misconduct** David Autry, OKC 11:40 - 12:30 pm Interviewing and Cross Examining the Child Complainant* William Korman, Boston, MA.

BREAKOUT SESSIONS

Track 1 1:30 - 2:20pm Identifying and Litigating Brady Violations* David Autry, OKC 2:30 - 3:20pm SORA & Convictions Triggering The Act- Jack Dempsey Pointer, OKC 3:30 - 4:20pm Issues in Drug Dog Cases - Doug Parr, OKC 4:30 - -5:20pm Search and Seizure*- Larry Edwards, Tulsa

Track 2 1:30 - 2:20pm Your Military Client’s Records: Getting Them All & Decoding the Military Language Robert Don Gifford, United States Attorneys Office 2:30 - 3:20pm Veterans Justice Outreach- How The Program Can Help Your Client Joseph Dudley, MSW, VA Hospital, OKC 3:30 - 4:20pm Writing Tips for Appellate Attorneys-Rob Ramana, OKC 4:30 - -5:20pm Case Update: State and Federal Barry Derryberry, Federal Defender, Stuart Southerland, Tulsa Public Defender

Track 3 1:30 - 2:20pm DUI: John Hunsucker, OKC & Bruce Edge, Tulsa 2:30 - 3:20pm DUI: John Hunsucker, OKC & Bruce Edge, Tulsa 3:30 - 4:20pm DUI-Drugs/DRE-John Hunsucker, OKC & Bruce Edge, Tulsa 4:30 - -5:20pm Designer Drugs- Dr. John Duncan, PhD, OUHSC

Friday, June 28th

8:30 - 9:00am Welcome & Presentation of the 2013 Patrick A Williams Award 9:00 - 9:50am Assessing Trauma: Integrating It Into Your Adult and Juvenile Defense Strategy* Cathy Olberding, LPC, OKC 9:50 - 10:40am The Youthful Brain- Using the Science to Benefit Child & Young Adult Clients* Rick Wardroup, Lubbock, TX 10:50 - 11:40pm Enforcing the Personal and Fundamental Right to a Meaningful Preliminary Hearing John Echols, Tulsa 11:40 -12:30pm How to Represent the Sex Crimes Defendant & Still Get Invited to Cocktail Parties* William Korman, Boston, MA

FOR MORE INFO: Email: [email protected] or call the OCDLA: 405-212-5024 Or visit www.ocdlaoklahoma.com

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 923 A Fair Impartial Independent Judiciary Th e So v e r e i g n t y Sy m p o s i u m XXVI Sk i rv i n Hi l t o n Ho t e l

Ju n e 5 - 6, 2013 u Ok l a h o m a Ci t y , Ok l a h o m a

Stephen Mopope (Kiowa) Flute Dance Oklahoma Art in Public Places – The Oklahoma Judicial Center Permanent Collection

The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal issues could be exchanged in a scholarly, non-adversarial environment. The Supreme Court espouses no view on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court. THE SOVEREIGNTY SYMPOSIUM AGENDA Wednesday Morning COLONEL CURTIS ARNOLD, Construction Facilities Manager, 4.5 CLE credits / 1 ethics included Oklahoma National Guard 7:30 – 4:30 Registration (Honors Lounge) 10:45 – 12:30 VETERANS AND DIVERSION COURT 8:00 – 8:30 Complimentary Continental Breakfast PROGRAMS – UNITED STATES DEPARTMENT OF 10:30 – 10:45 Morning Coffee / Tea Break VETERANS AFFAIRS 12:00 – 1:00 Lunch on your own MODERATOR: HONORABLE DOUGLAS COMBS, (Muscogee 8:30 – 5:30 PANEL A: TRIBAL ECONOMIC DEVELOPMENT Creek), Justice, Oklahoma Supreme Court Crystal Room JOSEPH DUDLEY, Veterans Justice Outreach Specialist, 8:30 – 12:30 INITIATIVES FOR ECONOMIC DEVELOPMENT Oklahoma City Veterans Administration Medical Center MODERATOR: DR. JAMES C. COLLARD, Director of Planning DEVAN BROTHERTON, Tulsa County Veterans and Economic Development, Citizen Potawatomi Nation Treatment Court Liaison/Readjustment Counselor, Jack C. HONORABLE DAVID WALTERS, President, Walters Power Montgomery Veterans Administration Medical Center International, Governor of Oklahoma, 1990-1994 CATHERINE BURTON, ESQ., Assistant District Attorney, DEE ALEXANDER, Senior Advisor on Native American Affairs, Oklahoma County, United States Department of Commerce PAULA WILLCOX, Veterans Justice Outreach Specialist JONNA KIRSCHNER, ESQ., Executive Director and General 8:30 – 5:30 PANEL C: A FAIR, IMPARTIAL, AND Counsel, Oklahoma Department of Commerce INDEPENDENT JUDICIARY ROY H. WILLIAMS, President and CEO, Greater Oklahoma City Centennial Ballroom Chamber of Commerce 8:30 – 12:30 HISTORICAL ANALYSIS GEORGE LEE, Vice-President, Red Devil, Inc., Chair, Oklahoma Governor’s International Team MODERATOR: HONORABLE PHILLIP LUJAN, (Kiowa/ JANIE HIPP, ESQ., Director, Indigenous Food and Agriculture Taos-Pueblo), Presiding Judge, Citizen Potawatomi Nation Initiative, University of Arkansas School of Law Tribal Court TIM GATZ, Director of Capital Programs, Oklahoma BRUCE FISHER, Administrative Programs Officer, Oklahoma Department of Transportation Historical Society JAY ADAMS, Tribal Liaison, Oklahoma Department of TERRY WEST, ESQ., General Counsel, Oklahoma Council on Transportation Judicial Complaints MICKEY EDWARDS, Director, Aspen Institute-Rodel 8:30 – 12:30 PANEL B: VETERANS Fellowships in Public Leadership Grand Ballroom B THOMAS S. WALKER, (Wyandotte/Cherokee), Appellate 8:30 – 10:45 ISSUES FACING MILITARY MEMBERS PAST Magistrate of the Court of Indian Offenses for the AND PRESENT Southern Plains Region of Tribes, District Judge, (ret.), CO-MODERATORS: HONORABLE W. KEITH RAPP, Brigadier General (ret.), Oklahoma National Guard Oklahoma Court of Civil Appeals CATHY CHRISTENSEN, ESQ., Past President (2012), MAJOR GENERAL RITA ARAGON (ret.), (Choctaw/Cherokee), Oklahoma Bar Association Oklahoma Secretary of Veterans Affairs 1:15 – 2:30 OPENING CEREMONY AND KEYNOTE ADDRESS DEBORAH ANN REHEARD, ESQ., Past President (2011), Grand Ballroom D-F Oklahoma Bar Association, Member, Judicial Nominating MASTER OF CEREMONIES – HONORABLE RUDOLPH Commission HARGRAVE, Justice, Oklahoma Supreme Court, Retired COLONEL BRENT WRIGHT ESQ. (Cherokee Nation) PRESENTATION OF FLAGS Staff Judge Advocate, Oklahoma National Guard, HONOR GUARDS: 138th Fighter Wing [ANG] [ACC] Absentee Shawnee Veterans Association Kiowa Black Leggings

924 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 DRUM: SOUTHERN NATION 3:15 – 4:45 THE JUDICIAL NOMINATING COMMISSION AND CAMP CALL: CHIEF GORDON YELLOWMAN, (Cheyenne) JUDICIAL RETENTION INVOCATION: BISHOP ROBERT E. HAYES JR., United CO-MODERATOR: DEBORAH REHEARD, ESQ., Past President Methodist Bishop of Oklahoma (2011), Oklahoma Bar Association, Member, Judicial Nominating WELCOME: HONORABLE MARY FALLIN, Governor of Commission Oklahoma DAVID HILL, Kimray Corporation, Former Member, Oklahoma WELCOME: JAMES T. STUART, President, Oklahoma Bar Judicial Nominating Commission Association BARRY SWITZER, Former Member, Oklahoma Judicial WELCOME AND INTRODUCTION OF JUSTICE Nominating Commission SANDRA DAY O’CONNOR: HONORABLE TOM COLBERT, JENNY DUNNING, Oklahoma Judicial Nominating Chief Justice, Oklahoma Supreme Court Commission KEYNOTE: HONORABLE SANDRA DAY O’CONNOR, HEATHER BURRAGE, ESQ., Chairperson, Oklahoma Judicial Justice, Supreme Court of the United States, Retired Nominating Commission ADDRESS: HONORABLE TOM COLE, (Chickasaw), WILLIAM P. BOWDEN, Major General (ret.), United States United States House of Representatives, Oklahoma District Four Air Force PRESENTATION OF AWARDS, HONORABLE YVONNE KAUGER, Justice, Oklahoma Supreme Court 4:45 – 5:30 CONVERSATION: HONORABLE SANDRA DAY HONOR AND MEMORIAL SONGS: SOUTHERN NATION O’CONNOR, Justice, Supreme Court of the United States, CLOSING PRAYER: BISHOP WILLIAM WANTLAND, Retired (Seminole, Chickasaw, Choctaw), Chief Justice, Seminole Nation ROBERT HENRY, President, Oklahoma City University Supreme Court, former Bishop of the Diocese of Eau Claire 2:45 – 5:30 PANEL D: TRUTH AND RECONCILIATION Wednesday Afternoon MODERATOR: HONORABLE NOMA GURICH, Justice, 4.5 CLE credits / 1 ethics included Oklahoma Supreme Court 2:30 – 2:45 Tea / Cookie Break for all Panels BISHOP ROBERT E. HAYES, JR., Bishop of the United Methodist 2:45 – 5:30 PANEL A : TRIBAL ECONOMIC DEVELOPMENT Conference of Oklahoma (A Continuation of the Morning Panel) Crystal Room REVEREND DR. DAVID WILSON, (Choctaw) United Methodist Conference Superintendent, Oklahoma Indian Missionary TRIBAL AND LOCAL GOVERNMENT COOPERATION Conference MODERATOR: DR. JAMES C. COLLARD, Director of CHIEF GORDON YELLOWMAN, (Cheyenne), Director, Planning and Economic Development, Citizen Potawatomi Cheyenne and Arapaho Tribes Language Program Nation C. BLUE CLARK, (Muscogee Creek), Professor of History, Native HONORABLE JOHN A. BARRETT, (Citizen Potawatomi Nation), American Legal Research Center, Oklahoma City University Chairman, Citizen Potawatomi Nation CHIEF HARVEY PRATT, (Cheyenne), Oklahoma State Bureau HONORABLE WALLACE COFFEY, (Comanche), Chairman, of Investigation Comanche Nation of Oklahoma 6:30 RECEPTION – UNVEILING OF THE PAINTING D. JAY HANNAH, (Cherokee), Executive Vice President, HONORING JUSTICE SANDRA DAY O’CONNOR Financial Services, BancFirst Oklahoma Judicial Center – 2100 North HONORABLE FRED L. FITCH, Mayor, Lawton, Oklahoma Lincoln Boulevard HONORABLE WES MAINORD, Mayor, Shawnee, Oklahoma Thursday Morning CAROLYN STAGER, Executive Director, Oklahoma Municipal 4 CLE credits / 1 ethics included League 7:30 – 4:30 Registration (Honors Lounge) 2:45 – 5:30PANEL B: THE ESSENTIALS OF TRIBAL SELF– 8:00 – 8:30 Complimentary Continental Breakfast GOVERNMENT AND SOVEREIGNTY 10:30 – 10:45 Morning Coffee / Tea Break Grand Ballroom A-B 8:30 – 12:00 PANEL A: GAMING - Grand Ballroom D-E MODERATORS: HONORABLE JERRY GOODMAN, Oklahoma CO-MODERATORS: MATTHEW MORGAN, (Chickasaw), Court of Civil Appeals Gaming Commissioner, Chickasaw Nation ALEXANDER T. SKIBINE, (Osage), S.J. Quinney Professor of NANCY GREEN, ESQ., (Choctaw), Green Law Firm Law, S.J. Quinney College of Law, University of Utah ROBERT J. MILLER, (Eastern Shawnee), Professor of Law, 8:30 – 9:15 REMARKS Lewis and Clark Law School HONORABLE TRACIE STEVENS, (Tulalip), Chair, National ELIZABETH A. KRONK, (Sault Ste. Marie Tribe of Chippewa Indian Gaming Commission Indians), Associate Professor of Law, University of Kansas School ERNEST STEVENS, JR., (Oneida), Chair, National Indian of Law, Director, Tribal Law and Government Center, Affiliated Gaming Association Professor, Indigenous Studies 9:15 – 10:30 COMPACT NEGOTIATIONS AND OKLAHOMA GEORGE T. SKIBINE, ESQ., (Osage), SNR Denton ISSUES UPDATE LINDSAY ROBERTSON, Professor of Law, University of Oklahoma College of Law, Faculty Director, American Indian JACQUE SECONDINE HENSLEY, (Kaw), Native American Law and Policy Center, and Associate Director, Inter–American Liaison, Office of Governor Mary Fallin Center for Law and Culture STEVE MULLINS, ESQ., General Counsel, Office of Governor CHAD SMITH, ESQ., (Cherokee), Chad Smith Consulting Mary Fallin JOSE FRANCISCO CALI TZAY, (Myan Caqchikel), 2013 Fellow JEFFREY CARTMELL, ESQ., Deputy General Counsel, Office of in Comparative and Indigenous Peoples Law, University of Governor Mary Fallin Oklahoma College of Law 10:45 – 12:00 TRIBAL/STATE OF OKLAHOMA RELATIONSHIP – 2:45 – 5:30 PANEL C: A FAIR, IMPARTIAL, AND FEES AND TAXES, PROCEDURES, IMPACT OF GAMING INDEPENDENT JUDICIARY (A Continuation of the DEVELOPMENT Morning Panel) - Centennial Ballroom WILLIAM NORMAN, ESQ., (Muscogee Creek), Hobbs Straus, MODERATOR: HONORABLE PHILLIP LUJAN, (Kiowa/ Dean and Walker Taos–Pueblo), Presiding Judge, Citizen Potawatomi Nation GARY PITCHLYNN, ESQ., (Choctaw), Pitchlynn Law Firm Tribal Court DEAN LUTHEY, ESQ., Gable Gotwals, General Counsel Oklahoma Indian Gaming Association 2:45 – 3:15 ETHICS ADDRESS 10:30 – 11:30 BOOK SIGNING JUSTICE SANDRA DAY HONORABLE JOHN REIF, Vice-Chief Justice, Oklahoma O’CONNOR – OUT OF ORDER: STORIES FROM THE Supreme Court HISTORY OF THE SUPREME COURT

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 925 8:30 – 12:30 PANEL B: CRIMINAL LAW/CROSS DEPUTIZATION SHEILA MORAGO, (Gila River), Executive Director, Oklahoma Grand Ballroom A-B Indian Gaming Association MODERATOR: HONORABLE SANFORD C. COATS, ESQ., ELIZABETH HOMER, ESQ. (Osage), Homer Law United States Attorney, Western District of Oklahoma GARY PITCHLYNN, ESQ. (Choctaw), Pitchlynn Law Firm ARVO MIKKANEN, ESQ., (Kiowa/Comanche), Assistant U.S. WILLIAM NORMAN, ESQ., (Muscogee Creek), Hobbs Straus, Attorney, Western District of Oklahoma Dean and Walker KURT G. GLASSCO, District Judge, District Court of Tulsa 1:30 – 5:00 PANEL B: THE ICWA AND OTHER CHILDREN’S County ISSUES - Crystal Room HONORABLE DAVID LEWIS, Chief Judge, Oklahoma Court of MODERATOR: HONORABLE JOHN FISCHER, Oklahoma Criminal Appeals Court of Civil Appeals 8:30 – 12:00 PANEL C: TRIBAL LANGUAGE PRESERVATION IN STEVEN HAGER, ESQ., Oklahoma Indian Legal Services THE TWENTY-FIRST CENTURY - Crystal Room SUE TATE, Court Improvement Project Coordinator, Oklahoma MODERATOR: HONORABLE CHARLES TATE, (Chickasaw), Administrative Office of The Courts Supreme Court Justice for the Kickapoo Tribe of Oklahoma, SUSAN WORK, ESQ., Assistant Attorney General, Cherokee former Special Judge, District Court of Carter County Nation of Oklahoma BLAKE WADE, Chief Executive Officer, The American Indian ANASTASIA PITTMAN, (Seminole), Oklahoma House of Cultural Center and Museum, President, Oklahoma Business Representatives Roundtable KELLY STONER, (Cherokee), Instructor in Law, Director of JEROD IMPICHCHAACHAAHA’ TATE, (Chickasaw), Composer the Native American Legal Resources Center, Oklahoma City CHIEF GORDON YELLOWMAN, (Cheyenne), Director, University Cheyenne and Arapaho Tribes Language Program RITA HART, (Choctaw and Jicarilla Apache), OKDHS Tribal HONORABLE GREG BIGLER, (Yuchi), District Judge, Program Manager Muscogee-Creek Nation HOLLY DAVIS, (Cherokee), Cherokee Immersion Charter School 1:30 – 5:00 PANEL C: THE TRIBAL LAW AND ORDER ACT- VON ROYAL, Executive Director, One-Net THE HOPI PERSPECTIVE - Grand Ballroom A-B 8:30 – 12:00 PANEL D: THE STATUS OF TRUST ISSUES IN THE MODERATOR: HONORABLE DAVID LEWIS, Chief Judge, WAKE OF JUDICIAL DECISIONS - Centennial Ballroom Oklahoma Court of Criminal Appeals CO-MODERATORS: HONORABLE JOHN REIF, Vice-Chief HONORABLE LEROY SHINGOITEWA, (Hopi), Chairman, Justice, Oklahoma Supreme Court Hopi Tribe, Kykotsmovi, Arizona LEAH HARJO WARE, (Muscogee Creek), ESQ. JILL ENGEL, ESQ., Chief Prosecutor, Hopi Tribe, Kykotsmovi, STACY LEEDS, (Cherokee), Dean, University of Arkansas School Arizona of Law, Commissioner, United States Trust Commission ROBERT J. LYTTLE, ESQ., General Counsel, Hopi Tribe, MICHAEL SMITH, Deputy Bureau Director, Field Operations, Kykotsmovi, Arizona United States Department of the Interior, Bureau of Indian MARILYN TEWA, (Hopi), Mishongnovi Village Representative, Affairs Kykotsmovi, Arizona JIM JAMES, Deputy Director of Field Operations, United States MERVYN YOYETEWA, (Hopi), Mishongnovi Village Department of the Interior, Office of Special Trustee for Representative, Kykotsmovi, Arizona American Indians JOHN TUCHI, Chief Assistant United States Attorney, Phoenix, DAVID SMITH, ESQ., Kilpatrick, Townsend and Stockton Arizona MELODY MCCOY, ESQ., (Cherokee), Native American 1:30 – 5:00 PANEL D: DEPARTMENT OF THE INTERIOR Rights Fund SECRETARIAL COMMISSION ON INDIAN TRUST WILLIAM RICE, (Keetoowah), Associate Professor of Law, ADMINISTRATION AND REFORM - Centennial Ballroom University of Tulsa College of Law The five-member Secretarial Commission will share its drafts Muscogee Creek MICHAEL ANDERSON, ESQ., ( ) recommendations regarding trust management and Thursday Afternoon administration, and invite feedback from attendees. 4 CLE credits / 0 ethics included MODERATOR: STACY LEEDS, (Cherokee), Dean, University of 3:30 – 3:45 Tea / Cookie Break for all Panels Arkansas School of Law, Commissioner, United States Trust 1:30 – 3:30 PANEL A: GAMING (A Continuation of the Commission Morning Panel) - Grand Ballroom D-E DR. PETERSON ZAH, (Diné/Navajo), Last Chairman of the Navajo Tribal Council, First Elected President of the CO-MODERATORS: MATTHEW MORGAN, (Chickasaw), Navajo Nation Gaming Commissioner, Chickasaw Nation TEX G. HALL, (Mandan, Hidatsa, and Arikara Nation), Chairman, NANCY GREEN, ESQ., (Choctaw), Green Law Firm Three Affiliated Tribes, Past President of the National Congress 1:30 – 3:30 SOVEREIGNTY ISSUES AND INTERNET GAMING of American Indians, Chairman of the Inter Tribal Economic – JURISDICTION, OFF RESERVATION, ECONOMIC Alliance, Chairman of the Great Plains Tribal Chairmen’s ANALYSIS, SOCIAL GAMING, STRATEGIES Association ERNEST STEVENS, JR., (Oneida), Chair, National Indian ROBERT ANDERSON, (Minnesota Chippewa Tribe Bois Forte Gaming Association Band), Professor of Law and Director of the Native American JAMIE HUMMINGBIRD, (Cherokee), Cherokee Nation Gaming Law Center at the University of Washington, Oneida Nation Commission, Director and Chairman of the National Tribal Visiting Professor of Law, Harvard Law School Gaming Commission Regulators LIZZIE MARSTERS, Chief of Staff to the Deputy Secretary of ALAN MEISTER, PH.D., Principal Economist, Nathan the Interior Associates, Inc. A MEETING OF THE DEPARTMENT OF THE INTERIOR D. MICHAEL MCBRIDE, III, ESQ., Crowe & Dunlevy SECRETARIAL COMMISSION ON INDIAN TRUST DEAN LUTHEY, ESQ., Gable Gotwals, General Counsel ADMINISTRATION AND REFORM WILL BE HELD AT THE Oklahoma Indian Gaming Association OKLAHOMA JUDICIAL CENTER, 2100 NORTH LINCOLN 3:45 – 5:00 LAND INTO TRUST AND OTHER REGULATORY BOULEVARD, OKLAHOMA CITY, OKLAHOMA ISSUES – CARCIERI, ROLES OF NIGC AND BIA, COMPET- ON JUNE 7, 2013 AT 8:30 AM ING INTERESTS, TAXATION ISSUES, NIGC UPDATE Commission Meetings are open to the public and information HONORABLE TRACIE STEVENS, (Tulalip), Chair, National about meetings is posted to: Indian Gaming Commission http://www.doi.gov/cobell/commission/index.cfm

926 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 A Fair Impartial Independent Judiciary

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 927 Court of Criminal Appeals Opinions

2013 OK CR 7 II. The appellee’s rights were not violated because his detention and subsequent THE STATE OF OKLAHOMA, Appellant, v. search of the vehicle were reasonable ROBERT HARRELL BASS, JR., Appellee. under the law and Mi r a n d a does not Case No. S-2012-363. May 1, 2013 apply. SUMMARY OPINION ¶4 In Proposition I, the State argues that Bass does not even have standing to challenge the SMITH, VICE PRESIDING JUDGE: search of the van, because he was not an autho- ¶1 On January 17, 2011, Robert Harrell Bass, rized driver of the van. The State cites both Jr. was charged by Information in the District Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, Court of Sequoyah County, Case No. CF-2011- 142 L.Ed.2d 373 (1998), and Rakas v. Illinois, 439 26, with Trafficking in Illegal Drugs (marijua- U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), in na), under 63 O.S.Supp.2007, § 2-415 (Count I), support of its “standing” argument. Yet in and Misdemeanor Possession of Drug Para- Carter, the Supreme Court described the “stand- phernalia, under 63 O.S.2011, § 2-405 (Count II).1 ing” approach to the question of who can prop- On February 3, 2011, Bass filed a Motion to erly assert a Fourth Amendment challenge to a Quash, Suppress, and Dismiss.2 On February 15, search or seizure as “an analysis that this Court 2011, a preliminary hearing was held before the expressly rejected 20 years ago in Rakas.” 525 Honorable L. Elizabeth Brown, Associate Dis- U.S. at 87, 119 S.Ct. at 472 (citing Rakas); see trict Judge. The State announced at the hearing Rakas, 439 U.S. at 139, 99 S.Ct. at 428 (“[W]e that it would amend Count I to “Possession think the better analysis forthrightly focuses on with Intent.” At the conclusion of the hearing, the extent of a particular defendant’s rights the Honorable L. Elizabeth Brown denied Bass’ under the Fourth Amendment, rather than on motion to suppress, overruled his demurrer, any theoretically separate, but invariably inter- and bound Bass over for trial on the Count I twined concept of standing.”). charge of Possession with Intent to Distribute. ¶5 Nevertheless, the State is raising a plau- On February 16, 2011, the State filed an Amend- sible claim that because Bass was not listed as ed Information, amending Count I to Posses- an authorized driver on the rental contract for sion of Controlled Drug with Intent to Distrib- the van, he did not have a reasonable expecta- ute (marijuana), under 63 O.S.2011, § 2-401. tion of privacy regarding the contents of that ¶2 On March 24, 2011, Bass filed a new van. In Carter, the Supreme Court recognized Motion to Quash, Suppress and Dismiss.3 On as follows: April 19, 2012, a hearing was held on this [I]n order to claim the protection of the motion before the Honorable J. Jeffrey Payton, Fourth Amendment, a defendant must District Judge. The court noted that it had demonstrate that he personally has an reviewed the transcript of the preliminary expectation of privacy in the place searched, hearing, a video of the stop, and the filings of and that his expectation is reasonable; i.e., the parties and then announced that it was one that has “a source outside of the Fourth granting Bass’ motion to suppress, without Amendment, either by reference to con- allowing any argument from the parties.4 The cepts of real or personal property law or to court did not, however, dismiss the case against understandings that are recognized and Bass. The State now appeals the district court’s permitted by society.” grant of Bass’ motion to suppress, under 22 O.S.Supp.2011, § 1053(5), and the matter is 525 U.S. at 88, 119 S.Ct. at 472 (quoting Rakas, 6 properly before this Court.5 439 U.S. at 143 n.12, 99 S.Ct. at 430 n.12). ¶3 The State raises the following proposi- ¶6 The State argues that Bass was “commit- ting the felony of unauthorized use of a vehi- tions of error in its appeal: cle.” The record, however, does not establish I. The Appellee does not have standing to this claim. The record establishes only that Bass challenge the search of the vehicle. was not the named renter of the van, nor was he

928 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 listed as an authorized driver, and that the van the renter to allow others to drive the vehicle.10 was not reported stolen. The only evidence in The court then concluded that under the factual the record regarding whether the person listed circumstances of that case, “society would rec- on the rental contract authorized Bass to drive ognize as reasonable Appellee’s expectation of the van is Bass’ statement to Officer Cody Hyde privacy in the use of his girlfriend’s rental car that the named renter did authorize him to with her permission even though he was not drive the van. Hence the question before this listed as an authorized driver on the rental Court is whether the driver of a rental vehicle, agreement.” Id. at 927. who is not listed on the rental contract for that ¶9 Given these authorities and the analysis vehicle, but who claims to have been given per- therein, this Court declines to find that Bass, mission to drive the vehicle by the person listed who was in sole possession of the van he was on the contract, has a reasonable expectation of driving, did not have a reasonable expectation privacy in the contents of that vehicle. Thus this of privacy in the contents of the van. Although is not a case where the vehicle stopped is deter- Bass was not listed on the rental contract for mined to be stolen or where the driver admits the van, he told Officer Hyde that the person that he or she had no legal right to be driving listed on the contract gave him permission to the vehicle at issue. drive the van; and the record contains no evi- ¶7 In United States v. Soto, 988 F.2d 1548 (10th dence to the contrary. Furthermore, the rental Cir. 1993), the court considered whether a agency confirmed that the van had not been driver who asserted that the car he was driving reported stolen. Under these circumstances, we had been loaned to him by his uncle, whose find that Bass had a right to challenge the name was on the car’s registration, had a pro- search of the van, which led to the discovery of tected Fourth Amendment privacy interest in the marijuana that Bass was then charged with the car.7 The Soto court found that “[w]here the possessing.11 defendant offers sufficient evidence indicating ¶10 In Proposition II, the State argues that that he has permission of the owner to use the the district court abused its discretion in grant- vehicle, the defendant plainly has a reasonable ing Bass’ motion to suppress, because the stop expectation of privacy in the vehicle.” Id. at of the van, detention of Bass, and subsequent 1552 (quoting United States v. Rubio-Rivera, 917 search of the van were all reasonable and F.2d 1271, 1275 (10th Cir. 1990)). The Soto court proper. This Court reviews the district court’s then concluded that because the defendant had grant of Bass’ motion to suppress for abuse of produced a registration bearing the name “Cor- discretion. See State v. Love, 1998 OK CR 32, ¶ 2, ral” and stated that Mr. Corral had loaned him 960 P.2d 368, 369 (“In appeals prosecuted pur- the car, in combination with the fact that the car suant to 22 O.S.1991, § 1053, this Court reviews had not been reported stolen, the defendant the trial court’s decision to determine if the had a sufficient expectation of privacy in the trial court abused its discretion.”). vehicle to challenge a search of that vehicle in a motion to suppress.8 ¶11 Officer Hyde’s original stop of the white van was clearly a valid traffic stop. Bass does ¶8 In Parker v. State, 182 S.W.3d 923, 924 (Tex. not challenge the validity of the original stop, Crim. App. 2006), the Texas Court of Criminal which was based upon Hyde’s observation Appeals recently addressed a situation where that the van was following another vehicle too the driver of a car stopped for “following closely and that it had crossed over the “fog another car at an unsafe distance” was driving line” onto the shoulder. This valid traffic stop a rental car that had been leased by his girl- ended, however, when Hyde gave Bass the friend. The driver was not on the rental agree- warnings that he had written up for him, ment.9 The court stated, “The question in the handed Bass his license, and told him to “be case before us is whether someone driving a careful.” rental car with permission only from the per- son who rented the car has an expectation of ¶12 In State v. Goins, 2004 OK CR 5, 84 P.3d privacy that society is prepared to recognize as 767, this Court addressed the question of when reasonable.” Id. at 926. The Parker court reviewed an officer may continue to question a person authority from the United States Supreme Court, originally detained for a valid traffic stop, after other Texas cases, and other jurisdictions, id. at the initial traffic stop has concluded. We found 925-26, and rejected the approach of focusing that an officer can continue to question a driver upon whether the car rental contract allowed after a valid traffic stop has concluded in two

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 929 specific situations: “First, the officer may detain court appears troubled (and even offended) by the driver for questioning unrelated to the ini- the fact that Officer Hyde “released” Bass to go tial stop if he has an objectively reasonable and and then, just moments later, detained him — articulable suspicion illegal activity has oc- without any new suspicious behavior on the curred or is occurring. Second, further ques- part of Bass. This Court emphasizes that the tioning unrelated to the initial stop is permis- legal question remains whether, at the point sible if the initial detention has become a con- Hyde detained Bass, the totality of the circum- sensual encounter.” Id. at ¶ 13, 84 P.3d at 770 stances provided Hyde with an adequate, par- (quoting United States v. Hunnicutt, 135 F.3d ticularized, and objective basis for doing so. 1345, 1349 (10th Cir. 1998)). The Supreme Court This Court does not hesitate to find that Officer has recognized that the issue of whether a Hyde had an adequate reasonable suspicion of detaining officer has an adequate and objective Bass under this standard. basis for detaining an individual suspected of wrongdoing is based upon “the totality of the ¶16 Bass originally told Officer Hyde that he circumstances.” See United States v. Arvizu, 534 himself rented the white van, yet he was unable U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d to produce the rental contract. A short time 740 (2002). later, Hyde learned from the rental company that it was not Bass who actually rented the ¶13 After the traffic stop was over and Bass van, but someone else — and that the van was had just exited Hyde’s OHP vehicle, Hyde supposed to be returned in San Francisco in asked Bass if he would mind answering a few four days, even though Bass was going east more questions. When Bass then voluntarily and had stated that he was headed home to got back in Hyde’s car, a consensual encounter North Carolina. The fact that Bass then changed began. During this encounter, Bass voluntarily his story and said that yes, the other person did answered Hyde’s question about whether he actually rent the van—and that they had actu- had any weapons or anything illegal in the van. ally been together in San Francisco, though (Bass said “no.”) Hyde then asked Bass for per- Bass had earlier stated he was traveling alone mission to search the van, but Bass said “no” — but that the other person rented the van for and asked if he could leave. Hyde then told Bass Bass, only increased the suspiciousness of Bass’ that he was not free to leave and that he needed situation. The State emphasizes Hyde’s testi- to stay in the patrol car. The consensual encoun- mony about how nervous Bass appeared dur- ter ended at this time; and the question for this ing the stop — that his hands were shaking; his Court is whether, at this point, Hyde had ade- voice was cracking; he had visible sweat beads quate, articulable “reasonable suspicion” that on his face, etc. This Court finds that Hyde’s illegal activity had occurred or was occurring, testimony in this regard supports our conclu- in order to detain Bass any longer. sion herein, but that Bass’ lies and shifting ¶14 This Court notes that it is irrelevant to stories are the most important factors in this the legality of the ensuing detention that Offi- Court’s determination that Hyde did have cer Hyde originally attempted to get Bass to adequate reasonable suspicion to detain Bass. engage in a consensual encounter and to vol- See State v. Paul, 2003 OK CR 1, ¶ 3, 62 P.3d 389, untarily agree to a search of his van. There is 390 (inconsistent statements about destination nothing improper in an officer — who may also and questionable proof of authority to operate have adequate reasonable suspicion to detain a vehicle provide reasonable suspicion). particular individual — initially attempting to ¶17 In its 7/26/12 “Findings of Fact and prolong his interaction with that person (whom Conclusions of Law,” the district court found he suspects of illegal activity) through the vol- that “Bass’s actions in the patrol vehicle as testi- untary consent of that person. This is what fied to by Trooper Hyde did not establish an Hyde attempted to do in the current case. An objectively reasonable and articulable suspicion officer who has both adequate reasonable sus- that the vehicle contained illegal contraband.” picion and voluntary consent can feel quite This approach, however, misunderstands the comfortable that his continuing encounter with analysis at issue. First, neither Hyde nor this the stopped individual is lawful and is unlikely Court is limited to considering the “actions” of to be found improper at a later time. Bass while he was “in the patrol vehicle” in mak- ¶15 In the district court’s brief comments at ing the determination of whether Hyde had an the time it granted Bass’ motion to suppress adequate and objective “reasonable suspicion” and in the court’s later written findings, the at the time he told Bass that he was not free to

930 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 leave. The dishonest and shifting words of Bass, ATTORNEYS IN TRIAL COURT from the time Hyde first interacted with him, Matthew R. Orendorff, Attorney at Law, 206 N. while Bass was still in the van, and throughout Oak, P.O. Box 129, Sallisaw, OK 74955, Attor- the encounter, were all part of the reasonable ney for Defendant suspicion that developed in this case. Hence the district court unreasonably limited the Anthony J. Evans, Assistant District Attorney, basis for its reasonable suspicion analysis. In Sequoyah County D.A.’s Office, 120 E. Chicka- addition, the law only requires that Hyde have saw, Suite 204, Sequoyah County Courthouse, a reasonable suspicion that some kind of illegal Sallisaw, OK 74955, Attorney for State activity has occurred or is occurring at the time ATTORNEYS ON APPEAL he begins detaining Bass. The State is not required to establish a reasonable suspicion Anthony J. Evans, Assistant District Attorney, that the van “contained illegal contraband” to Sequoyah County D.A.’s Office, 120 E. Chicka- justify the short detention of Bass that occurred saw, Suite 204, Sequoyah County Courthouse, while Hyde was getting out his drug dog and Sallisaw, OK 74955, Attorney for Appellant taking him around the van. Donn F. Baker, Attorney at Law, 319 E. Dela- ¶18 This Court finds that Hyde had adequate ware, Tahlequah, OK 74464, Attorney for reasonable suspicion to detain Bass for the few Appellee minutes that passed while Hyde got his trained drug detection dog out of the backseat of his OPINION BY: SMITH, V.P.J. OHP vehicle and then took the dog around the LEWIS, P.J.: CONCUR white van.12 When the dog then visibly “alert- LUMPKIN, J.: CONCUR IN PART/DISSENT ed” on the back of the van, Hyde was justified IN PART in allowing the dog to enter the van, i.e., Hyde C. JOHNSON, J.: SPECIALLY CONCUR had probable cause to search the van, at which A. JOHNSON, J.: CONCUR time the dog further alerted on certain large bags in the rear of the van.13 At that point, Hyde 1. Count II, which alleged possession of “plastic bags,” is not involved in the current appeal. had probable cause to open and search these 2. The State filed a response to this motion on February 14, 2011. bags, which contained multiple, separate bags 3. The State filed a response to this motion on May 12, 2011; and Bass filed a reply to this response on June 15, 2011. of marijuana. Hyde was then authorized to 4. After the State noted its intent to appeal this ruling, the prosecu- arrest Bass, which he did. See Paul, 2003 OK CR tor asked, “I would just ask [] what in particular did you find wrong 1, ¶ 3, 62 P.3d 389 (finding search of vehicle with the stop?” The court responded: “He released the guy to go and then turned him around and brought him back into the vehicle and proper after drug-dog-sniff “hit” established started questioning him again after about 30 minutes.” The court then probable cause, in factually parallel case). added, “And it was just unreasonable.” 5. On July 26, 2012, over three months after granting Bass’ motion ¶19 The district court abused its discretion in to suppress, the district court filed “Findings of Fact and Conclusions of Law” regarding its grant of Bass’ motion to suppress. This filing, granting Bass’ motion to dismiss. Hence the which occurred after the record on appeal had been ordered from the grant of Bass’ motion to suppress must be district court, has been added to the record in this case pursuant to the State’s motion to amend and supplement the record on appeal. reversed, and this matter must be remanded to 6. In Rakas, the Supreme Court noted that this inquiry “requires a the district court. determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was Decision designed to protect.” See Rakas, 439 U.S. at 140, 99 S.Ct. at 429. 7. The driver of the car (i.e., Soto) was an illegal alien and initially ¶20 The decision of the district court grant- gave a false name and a false driver’s license. When he produced the registration for the car, it showed the owner to be a person whose last ing Bass’ motion to suppress is REVERSED, name was “Corral.” Soto then stated that Mr. Corral was his uncle and and this case is REMANDED to the district that he had loaned him the car for a trip from Chicago to Los Angeles and back. Soto was not able to provide Mr. Corral’s home address. However, court for further proceedings consistent with when the stopping officer performed an NCIC check on the car, he this opinion. Pursuant to Rule 3.15, Rules of the learned that it had not been reported stolen. See Soto, 988 F.2d at 1550. 8. The Soto court wrote: Oklahoma Court of Criminal Appeals, Title 22, [D]efendant here claimed to have borrowed the car from the Ch.18, App. (2013), the MANDATE is OR- rightful owner, and produced a registration bearing that indi- DERED issued upon the delivery and filing of vidual’s name. Although this evidence is not determinative of defendant’s right to possess the vehicle, absent evidence that this decision. defendant wrongfully possessed the vehicle[,] it is sufficient to confer standing on him to challenge the subsequent search of the AN APPEAL FROM THE DISTRICT car. COURT OF SEQUOYAH COUNTY See id. at 1553. 9. In fact, the rental agreement expressly stated that the car’s renter was not allowed to permit anyone else to drive the car without the THE HONORABLE J. JEFFREY PAYTON, permission of the rental agency; and the defendant’s girlfriend DISTRICT JUDGE acknowledged at the hearing on his motion to suppress that she knew

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 931 she was violating her rental contract when she loaned her boyfriend was a mechanical issue with his plane. (P.H. the car. See Parker, 182 S.W.3d at 924. 10. Id. at 927 (“Rather than continuing to allow the terms of a con- 17-19). Appellee was unable to provide Hyde tract to determine whether an individual may assert his constitutional with a copy of the rental agreement. (P.H. 15, rights, we instead return to a Smith v. Maryland analysis of whether the defendant’s expectation of privacy is one that society recognizes as 29). Trooper Hyde checked and determined reasonable or justifiable under the circumstances.”); see Smith v. Mary- that the van had not been reported stolen. (P.H. land, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (outlin- ing reasonable expectation of privacy test in this context). 30). Hyde then contacted the rental company. 11. In its 7/26/12 Findings of Fact and Conclusions of Law, the He discovered that Appellee was not on the district court found that Bass had standing to challenge the search of rental agreement, the van had been rented by a the van he was driving, citing Soto and Smith v. Maryland. 12. This Court has reviewed the video of this traffic stop and notes third party that was not present, there were no that there was no significant delay in this process — and certainly no additional drivers listed with the rental agency, 30-minute delay — since Hyde’s dog was in his backseat. 13. In Florida v. Harris, __ U.S. __, 133 S.Ct. 1050, 1053-54 (2013), the and the van was supposed to be returned to the Supreme Court recently addressed the issue of whether a particular airport in San Francisco. (P.H. 14-16, 18, 32-33). drug-dog’s “alert” adequately established probable cause to search a vehicle, even if on two occasions a post-sniff-search (of the same defen- Appellee overheard Hyde’s conversation with dant’s truck) did not turn up any of the drugs for which the dog had the rental company and changed his story. been trained to alert. The Court noted that the question of “probable Appellee informed Hyde that he had met a cause” in this context is simply whether the facts available to the offi- cer warranted a reasonable belief that contraband or evidence of a friend in Chicago; they had flown to California, crime would be present in the area to be searched. See id. at 1055 (all and stayed together for the duration of their citations omitted). The Harris Court emphasized that this determina- tion involves a “practical and common-sensical standard,” based upon trip. He claimed that this friend had rented the “the totality of the circumstances.” Id. (citations omitted); see also id. vehicle for him and provided Trooper Hyde (rejecting “rigid rules, bright-line tests, and mechanistic inquiries in with the name under which he thought the favor of a more flexible, all-things-considered approach”). The Harris Court unanimously found that the Florida drug-dog’s alert in that case vehicle was rented. (P.H. 18-19). Based upon established probable cause to search the defendant’s truck, id. at 1059, Appellee’s inconsistent statements and his and struck down a contrary decision by the Florida Supreme Court as being too rigid, too strict, and as mistakenly assuming that an officer’s physical behavior, Trooper Hyde did not failure to discover particular drugs after a drug dog alerted on a believe that Appellee was being truthful when vehicle necessarily established that that the dog’s alert was erroneous (i.e., “a false positive”). Id. at 1056-57. he claimed that a friend had rented the vehicle for him. (P.H. 35). LUMPKIN, JUDGE: CONCURING IN PART/ DISSENTING IN PART ¶4 As Soto did not involve a non-authorized driver operating a rental car, it is clearly distin- ¶1 I concur in the result reached, however, I guishable from the present case. Soto may also do not agree with the Opinion’s analysis and be distinguished from the present case based determination of Proposition One. Instead, I upon the fact that Appellee provided conflict- find that Appellee did not have the capacity to ing stories as to how he acquired possession of claim protection of the Fourth Amendment in the van and the Trooper’s belief that Appellee the present case.1 was not being truthful. ¶2 In reaching the contrary conclusion, the ¶5 Instead, the present case is nearly identi- Opinion overlooks more persuasive authority cal to the Tenth Circuit’s opinion in United and mistakenly applies the wrong analysis. States v. Roper, 918 F.2d 885 (10th Cir. 1990). In The Opinion relies upon United States v. Soto, Roper, the defendant was driving a vehicle 988 F.2d 1548 (10th Cir. 1993). However, Soto is through Oklahoma that the backseat passen- distinguishable from the present case. In Soto, ger’s common-law wife had rented. Id., 918 the defendant indicated that the car had been F.2d at 886. The rental agreement stated that loaned to him by his uncle, produced a regis- the car could only be driven by the lessee and tration bearing that name, and a computer could not be driven outside the State of Califor- check revealed that the vehicle had not been nia without written permission. Id. Neither the reported stolen. Soto, 988 F.2d at 1550, 1553. defendant nor the backseat passenger was list- ed as an additional driver on the rental con- ¶3 In the present case, Appellee was driving tract. Id., 918 F.2d at 888. The Tenth Circuit a van eastbound on Interstate 40 in Eastern determined that the defendant did not have Oklahoma when Trooper Hyde stopped him standing to challenge the search of the vehicle for two traffic violations. (P.H. 13-14). Appellee he was driving because he was not the owner informed Hyde that he had rented the van in nor was he in lawful possession or custody of California and intended to drop the vehicle off the vehicle at the time of the stop. Id., 912 F.2d in his home state of North Carolina. (P.H. 14-15, at 887-88. 17, 33). He further explained that he had flown to California by himself to look around. He ¶6 Roper cited and followed the opinion in rented the vehicle to drive home because there United States v. Obregon, 748 F.2d 1371 (10th Cir.

932 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 1984). Id., 912 F.2d at 887-88. In Obregon, the the rental agreement or that he was not listed defendant was driving a rented vehicle and as an authorized driver, the court found that was not named on the rental agreement or any the defendant had a reasonable expectation of other documents, either as the renter or as an privacy in the vehicle. Id., 182 S.W.3d at 927. authorized driver. Obregon, 748 F.2d at 1374. ¶10 The Texas Court of Criminal Appeals is The Tenth Circuit determined that the district not the only court to reject a bright-line rule. In court’s holding that the defendant did not have United States v. Kennedy, 638 F.3d 159 (3rd Cir. a legitimate expectation of privacy in the car he 2011), the Third Circuit Court of Appeals deter- was driving and therefore did not have stand- mined whether the driver of a rental car that ing to challenge the stop and subsequent search had been lent the car by the renter, but who of the car by police was not clearly erroneous. had not been listed on the rental agreement as Id., 748 F.2d at 1375. an authorized driver, had a legitimate expecta- ¶7 Although none of these cases are control- tion of privacy in the car. Id., 638 F.3d at 161. ling on this Court, I find that Roper and Obregon [W]e concur with the majority of circuits are much more persuasive as the facts in those that have considered this factual scenario two cases are nearly identical to the present and conclude that, as a general rule, the case. The opinion in Soto is simply too far driver of a rental car who has been lent the afield. car by the renter, but who is not listed on ¶8 The Opinion also relies upon Parker v. the rental agreement as an authorized driv- State, 182 S.W.3d 923 (Tex. Crim. 2006), how- er, lacks a legitimate expectation of privacy ever, the Texas Court of Criminal Appeals did in the car unless there exist extraordinary not find that an unauthorized operator of a circumstances suggesting an expectation of rental car has a legitimate expectation of pri- privacy. See, e.g., United States v. Seeley, 331 vacy in the vehicle. Id., 182 S.W.3d at 926-27. F.3d 471, 472 n. 1 (5th Cir.2003) (per curiam) Instead, Parker held that: (finding that driver of rental car lacked standing where he was not the renter or We disagree with the court of appeals’ authorized driver); United States v. Wellons, use of a bright-line rule stating that only 32 F.3d 117, 119 (4th Cir.1994) (holding that those listed on a rental agreement as autho- unauthorized driver of rental car who had rized drivers have an expectation of priva- been given permission to drive by co- cy in the vehicle and standing to contest a defendant, an authorized driver, lacked search. Instead, the court should have con- standing); United States v. Roper, 918 F.2d sidered the circumstances surrounding the 885, 887–88 (10th Cir.1990) (defendant use of the vehicle, as well as the nature of lacked standing where car he was driving the relationship between the driver and the was rented by co-defendant’s common law lessee, to determine whether the driver had wife and he was not listed as additional a legitimate expectation of privacy that driver in rental contract); cf. United States v. society would recognize as reasonable as Smith, 263 F.3d 571, 586 (6th Cir.2001) (not- outlined in Smith v. Maryland. . . . ing that “as a general rule, an unauthorized Id., 182 S.W.3d at 927, citing Smith v. Maryland, driver of a rental vehicle does not have a 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 legitimate expectation of privacy in the (1979). vehicle” but nevertheless finding that the defendant had standing in light of the ¶9 In Parker, the defendant’s girlfriend, the “truly unique” facts of that case). renter of the vehicle, testified at the suppres- sion hearing that she rented the car because her Id., 638 F.3d at 165. personal vehicle was being repaired. Id., 182 ¶11 In United States v. Smith, 263 F.3d 571 (6th S.W.3d at 924, 927. Although the defendant Cir. 2001), the Sixth Circuit Court of Appeals was not listed on the rental agreement as an stated: authorized driver, the girlfriend intended to share the rental car with the defendant in the We acknowledge that as a general rule, same way they normally shared her car. Id., 182 an unauthorized driver of a rental vehicle S.W.3d at 924. Because the record reflected that does not have a legitimate expectation of the defendant had the renter’s express permis- privacy in the vehicle, and therefore does sion to drive the car and there was nothing to not have standing to contest the legality of suggest that the defendant knew the terms of a search of the vehicle. However, we refuse

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 933 to adopt a bright line test, as the govern- Fourth Amendment jurisprudence. The core of ment seems to advocate, based solely on the Fourth Amendment is “‘[t[he right of the whether the driver of a rental vehicle is people to be secure in their persons, houses, listed on the rental agreement as an autho- papers, and effects, against unreasonable rized driver. Such a rigid test is inappropri- searches and seizures.’” Kyllo v. United States, ate, given that we must determine whether 533 U.S. 27, 31, 121 S.Ct. 2038, 2041, 150 L. Smith had a legitimate expectation of pri- Ed.2d 94 (2001). To claim the protection of the vacy which was reasonable in light of all Fourth Amendment an individual must have a the surrounding circumstances. See Rakas, “legitimate expectation of privacy” that has 439 U.S. at 152, 99 S.Ct. 421 (Powell, J., con- been invaded by the government. Smith v. Mary- curring). “In considering the reasonable- land, 442 U.S. at 740, 99 S.Ct. at 2580, quoting ness of asserted privacy expectations, the Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, [Supreme] Court has recognized that no 430, 58 L.Ed.2d 387 (1978). The inquiry as to single factor invariably will be determina- whether an individual has a legitimate expecta- tive.” Id. tion of privacy embraces two questions. Id. First, whether the individual, by his conduct has Id., 263 F.3d at 586. In Smith, the Sixth Circuit exhibited an actual (subjective) expectation of distinguished Obregon and related cases: privacy, that is to say that, the individual has Smith is unlike any of the drivers in any of shown that he seeks to preserve something as these cases, because he personally had a private. Id. Second, whether the individual’s business relationship with the rental com- subjective expectation of privacy, viewed objec- pany. Smith called the rental company to tively, is justifiable under the circumstances, reserve the vehicle and was given a reser- namely, one that society is prepared to recog- vation number. He provided the company nize as reasonable. Id. This Court is not free to with his credit card number, and that cred- adopt a bright-line rule but must consider the it card was subsequently billed for the individual’s conduct as well as the surround- rental of the vehicle. His wife, Tracy Smith, ing circumstances. picked up the vehicle using the confirma- ¶13 I further note that the individual assert- tion number given to Smith by the compa- ing the right bears the burden of proving that ny. Smith had an intimate relationship with he had a legitimate expectation of privacy in Tracy Smith, the authorized driver of the the area searched. Anderson v. State, 1999 OK vehicle who gave him permission to drive CR 44, ¶ 18, 992 P.2d 409, 417, citing Rawlings v. it. This is not a case in which a driver was Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2561, simply granted permission by the “renter” 65 L.Ed.2d 633 (1980). The Supreme Court has of the vehicle, because in this case Smith further delineated what must be shown to was the de facto renter of the vehicle. His establish that a subjective expectation of pri- relationships to the vehicle and its autho- vacy is justifiable under the circumstances. rized driver were not “attenuated” as were the relationships in Obregon, Sanchez, Wel- [I]n order to claim the protection of the lons and Muhammad. Although Smith was Fourth Amendment, a defendant must not technically in privity of contract with demonstrate that he personally has an the rental company as was the driver in expectation of privacy in the place searched, Cooper, he did have a business relationship and that his expectation is reasonable; i.e., with the company. His business relation- one that has “a source outside of the Fourth ship with the rental company and his inti- Amendment, either by reference to con- mate relationship with his wife, the autho- cepts of real or personal property law or to rized driver of the vehicle, are relationships understandings that are recognized and which are recognized by law and society. permitted by society.” Based on these relationships, as well as the Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. fact that he personally paid for the vehicle, 469, 472, 142 L.Ed.2d 373 (1998), quoting Rakas, Smith had both a subjective and an objec- 439 U.S. at 143-44 n.12, 99 S.Ct. at 430 n.12. tive legitimate expectation of privacy. ¶14 Applying the proper analysis to the pres- Id., 263 F.3d at 586-87. ent case, Appellee did not prove that he had a ¶12 I, too, find that a bright-line rule is incon- legitimate expectation of privacy in the rental sistent with the Supreme Court’s established van. Appellee’s subjective expectation of pri-

934 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 vacy, if any, in the van was not justifiable under another day. In my view, the officer had plenty the circumstances. Appellee never established of reasonable suspicion to detain the motorist a source for the expectation in either property for additional investigation before that point in law or as recognized by society. their encounter. The details of the motorist’s trip, as initially related by him, were at odds ¶15 As to property law, Appellee never with information the officer obtained from the established that he was lawfully in possession car-rental company. The motorist then changed of the van. The record reveals that Appellee did his story to accommodate these new facts. The not rent the van. He was not listed as an autho- motorist’s story simply did not add up, and rized driver on the rental agreement. Appellee warranted additional investigation. There was did not present any testimony or evidence in no unreasonable delay in that effort, as a drug- support of his motion to suppress. He simply sniffing dog was already on the scene, and its relied upon the Trooper’s testimony from the reaction to the vehicle quickly provided prob- preliminary hearing. As such, the present case able cause for a full-blown arrest. is distinguishable from Parker. The Trooper’s testimony as to Appellee’s contradictory state- ments as to how he came into possession of the van are simply insufficient to prove that the renter had permitted Appellee to drive the van. This is particularly the circumstance where the Trooper has validly testified that he suspected Appellee was not being truthful. ¶16 As to societal recognition, Appellee’s relationships to the vehicle and its authorized driver were attenuated. There is no evidence of a prior vehicle sharing arrangement between boyfriend and girlfriend as shown in Parker. There is no indication of a close relationship with the rental company and the renter as shown in Smith. ¶17 Reviewing the surrounding circumstanc- es, Appellee failed to establish that he had the capacity to claim protection of the Fourth Amendment as to the search of the rental van. Therefore, I would reverse and remand the Atlas Pipeline is seeking qualified candidates for a case on this basis. Senior Corporate Counsel position in our Tulsa office.

1. In Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d The Senior Corporate Counsel provides legal services 387 (1978), the Supreme Court distinguished between the traditional and advice regarding a wide range of activities and concept of “standing” and the “capacity to claim the protection of the Fourth Amendment.” However, I note that the term “standing” is projects related to the operations and business of the sometimes still used. See Davis v. United States, --- U.S. ---, 131 S.Ct. company, and ensures that the company conducts its 2419, 2431, 180 L.Ed.2d 285 (2011); Kentucky v. King, --- U.S. ---, 131 S.Ct. 1849, 1854 n.1, 179 L.Ed.2d 865 (2011); Brendlin v. California, 551 U.S. business in compliance with applicable laws, regulations, 249, 259, 127 S.Ct. 2400, 2408, 168 L.Ed.2d 132 (2007); Georgia v. Ran- and internal policies and procedures. dolph, 547 U.S. 103, 126 S.Ct. 1515, 1532, 164 L.Ed.2d 208 (2006) (Rob- erts, C.J., and Scalia, J., dissenting). The ideal candidate will possess a J.D., be licensed to C. JOHNSON, JUDGE, SPECIALLY CONCUR: practice law in Oklahoma, have 3-5 years of legal experi- ence, and have knowledge or experience in one or more ¶1 I concur in the Court’s disposition of this of the following areas: (i) real estate law; (ii) commercial case. The trial court seemed disturbed by the law; (ii) midstream law; and/or (iii) oil and gas law. fact that the officer either had changed his mind about letting the motorist go about his For additional details regarding this position, please visit business, or had never really intended to let the the following web address: http://www.atlaspipeline.com/ motorist leave, and was simply hoping the Careers/Sr-Corporate-Counsel,29-040213.aspx motorist would consent to a vehicle search. Qualified candidates may submit a resume to hr@ Whether such conduct on the part of police atlaspipeline.com or fax to (918) 925-3990. Please might be unreasonable, under some other fact reference job number 29-040213. pattern, is an issue this Court can leave for

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 935 BAR NEWS

Judicial Nominating Commission Elections: Nomination Period Opens

The selection of qualified terms. Members may not persons for appointment to succeed themselves on the DISTRICT 3 COUNTIES the judiciary is of the utmost commission. • Atoka importance to the administra- The lawyers of this state • Bryan tion of justice in this state. play a very important role in Since the adoption of Article • Carter the selection of judges since 7-B to the Oklahoma Constitu- • Choctaw six of the members of the tion in 1967, there has been • Coal commission are lawyers elect- significant improvement in ed by lawyers. The lawyer • Cotton the quality of the appoint- members are elected from • Garvin ments to the bench. Originally, each of the six congressional the Judicial Nominating Com- • Haskell districts as they existed in mission was involved in the • Hughes 1967. (As you know, the con- nomination of justices of the • Jefferson gressional districts were Supreme Court and judges redrawn in 2011.) Elections • Johnston of the Court of Criminal are held each odd numbered • Latimer Appeals. Since the adoption year for members from two • LeFlore of the amendment, the Legis- districts. lature added the requirement • Love that vacancies in all judge- 2013 ELECTIONS • Marshall ships, appellate and trial, • McCurtain be filled by appointment of This year there will be elec- tions for members in Districts • Murray the governor from nominees • Pittsburg submitted by the Judicial 3 and 4. District 3 is composed • Pontotoc Nominating Commission. of 22 south central and south- eastern counties. District 4 is • Pushmataha The commission is com- composed of 13 counties in • Seminole posed of 15 members. There the central and southwestern • Stephens are six non-lawyers appointed part of the state. (See the side- by the governor, six lawyers bar for the complete list.) DISTRICT 4 COUNTIES elected by members of the bar, and three at-large members, Lawyers desiring to be • Caddo one selected by the Speaker of candidates for the Judicial • Cleveland the House of Representatives; Nominating Commission • Comanche positions have until Friday, one selected by the President • Grady Pro Tempore of the Senate; May 17, 2013, at 5 p.m. to submit their Nominating • Greer and one selected by not less • Harmon than eight members of the Petitions. Ballots will be commission. All serve six-year mailed on June 7, 2013, and • Jackson terms, except the members at must be returned by June 21, • Kiowa 2013, at 5 p.m. large who serve three-year continued on next page

936 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 requires elections be held in 5 p.m. on the third Friday in each odd numbered year by June. • McClain active members of the Okla- 7. Under the supervision of • Oklahoma (part)* homa Bar Association to elect the Executive Director, or his two members of the Judicial • Pottawatomie designee, the ballots shall be Nominating Commission for • Tillman opened, tabulated and certi- six-year terms from Congres- • Washita fied at 9 a.m. on the Monday sional Districts as such dis- following the third Friday of tricts existed at the date of June. *Oklahoma County only adoption of Article 7-B of the includes selected cities: Oklahoma Constitution 8. Unless one candidate Choctaw, Harrah, Luther, (1967). receives at least 40 percent of Midwest City, Newalla, the votes cast, there shall be a 2. Ten (10) active members Nicoma Park and Spencer. runoff election between the of the association, within the District Number 4 shall two candidates receiving the Congressional District from include that portion highest number of votes. of Oklahoma County which a member of the com- described as State Senate mission is to be elected, shall 9. In case a runoff election is District Number 42 and file with the Executive Direc- necessary in any Congressio- that portion of House tor a signed petition (which nal District, runoff ballots District Number 96 not may be in parts) nominating a shall be mailed, under the otherwise included in State candidate for the commission; supervision of the Executive Senate District Number or, one or more County Bar Director, or his designee, to 42, as now defined and Associations within said Con- every active member of the described in Title 14, Okla- gressional District may file association therein on the homa Statutes, Section 79 with the Executive Director a fourth Friday in June, and (as they existed in 1967). nominating resolution nomi- all runoff ballots must be nating such a candidate for received at the Bar Center the commission. by 5 p.m. on the third Friday in July. It is important to the admin- 3. Nominating petitions istration of justice that the must be received at the Bar 10. Under the supervision of OBA members in the Third Center by 5 p.m. on the third the Executive Director, or his and Fourth Congressional Friday in May. designee, the runoff ballots shall be opened, tabulated Districts become informed on 4. All candidates shall be and certified at 9 a.m. on the the candidates for the Judicial advised of their nominations, Monday following the third Nominating Commission and and unless they indicate they Friday in July. cast their vote. The framers of do not desire to serve on the the constitutional amendment commission, their name shall 11. Those elected shall be entrusted to the lawyers the be placed on the ballot. immediately notified, and responsibility of electing qual- their function certified to the 5. If no candidates are nomi- ified people to serve on the Secretary of State by the Presi- nated for any Congressional commission. Hopefully, the dent of the Oklahoma Bar District, the Board of Gover- lawyers in the Third and Association, attested by the nors shall select at least two Fourth Congressional Districts Executive Director. will fulfill their responsibility candidates to stand for elec- by voting in the election for tion to such office. 12. The Executive Director, or his designee, shall take members of the Judicial 6. Under the supervision possession of and destroy any Nominating Commission. of the Executive Director, or ballots printed and unused. OBA PROCEDURES his designee, ballots shall be GOVERNING THE mailed to every active mem- 13. The election procedures, ELECTION OF LAWYER ber of the association in the with the specific dates includ- MEMBERS TO THE respective Congressional ed, shall be published in the JUDICIAL NOMINATING District on the first Friday in Oklahoma Bar Journal in the COMMISSION June, and all ballots must be three issues immediately pre- 1. Article 7-B, Section 3, of received at the Bar Center by ceding the date for filing the Oklahoma Constitution nominating resolutions.

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 937 NOTICE JUDICIAL NOMINATING COMMISSION ELECTIONS CONGRESSIONAL DISTRICTS 3 AND 4

CIMARRON HARPER ON WOODS ALFALFA GRANT KAY OSAGE NOWATA CRAIG OTTAWA TEXAS BEAVER SHINGT WA

ROGERS WOODWARD GARFIELD NOBLE MAYES MAJOR PAWNEE DELAWARE

Nominations for elections as members of TULSA ELLIS 6 6 PAYNE 2 WAGONER the Judicial Nominating Commission from DEWEY CHEROKEE KINGFISHER CREEK BLAINE LOGAN 1 Congressional Districts 3 and 4 (as they ADAIR LINCOLN MUSKOGEE ROGER MILLS CUSTER OKLAHOMA OKMULGEE existed in 1967) will be accepted by the CANADIAN SEQUOYA H OKFUSKEE 5 McINTOSH WASHITA 5 Executive Director until 5 p.m. Friday, BECKHAM CLEVELAND OMIE HASKELL CADDO AT

May 17, 2013. Ballots will be mailed on GRADY AW TT HUGHES McCLAIN SEIMINOLE GREER KIOWA PO PITTSBURG LATIMER June 7, 2013, and must be returned by 4 LEFLORE GARVIN PONTOTOC COMANCHE 5 p.m. on June 21, 2013. HARMON JACKSON COAL MURRAY STEPHENS PUSHMATAHA TILLMAN 3 ATOKA COTTON JOHNSTON CARTER McCURTAIN Note: The Congressional Districts are those existing JEFFERSON CHOCTAW MARSHALL at the date of the adoption of Article 7-B of LOVE BRYA N the Oklahoma Constitution.

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF JAMES E. GOLDEN, SCBD #5990 TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION

Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if James E. Golden should be reinstated to active membership in the Oklahoma Bar Association. Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Okla- homa City, Oklahoma, at 9:30 a.m. on Thursday, June 27, 2013. Any person wishing to appear should contact Gina Hendryx, General Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007. PROFESSIONAL RESPONSIBILITY TRIBUNAL

938 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 HANDBOOK OF SECTION 1983 LITIGATION, 2013 EDITION David W. Lee ƒ Lee Law Center, P.C. ƒ Oklahoma City

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Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 939 Court of Civil Appeals Opinions

2013 OK CIV APP 35 tinct trust. The person for whose benefit a share is created ... is the primary beneficia- IN THE MATTER OF THE ESTATE OF ry of that share. DONALD R. ROZELL: Plaintiff/Appellant, vs. THE BETTY ROZELL REVOCABLE 2.05 Distribution of Income and Princi- TRUST AND EARL ROZELL, TRUSTEE, pal to My Descendants After the Division Defendants/Appellees. Date: After the Division Date, the Co-Trust- ee shall have the discretionary power to Case No. 109,331. November 30, 2012 pay all or any portion of the income and APPEAL FROM THE DISTRICT COURT OF principal of each share of each indepen- LINCOLN COUNTY, OKLAHOMA dent trust to or for the benefit of Watts Rozell, Jr., Ann Rozell Day, Don Rozell, HONORABLE PAUL VASSAR, TRIAL JUDGE Roger Rozell, John Rozell, Nancy Orr and REVERSED AND REMANDED Earl Rozell, per stirpes. If any beneficiary shall be deceased at the time of distribu- Sherri K. Anderson, ANDERSON LAW FIRM, tion, their share shall be distributed to their P.L.L.C., Tulsa, Oklahoma, for Plaintiff/ children so long as they have obtained the Appellant, age of 25 years or older. Any heir not of the Craig S. Key, Chandler, Oklahoma, for Defen- age of 25 years shall have their share held dants/Appellees. in trust until such time as they reach the age of 25 years. BRIAN JACK GOREE, Judge: 2.06 Termination of Trust: The share or ¶1 Plaintiff/Appellant, Estate of Donald R. proportionate part thereof of the trust prin- Rozell by its personal representative, Sharon K. cipal set aside for each primary beneficiary Hudgins-Rozell, sued Defendant/Appellee, shall be held and eventually distributed The Betty Rozell Revocable Trust by its trustee, and paid over free and clear of trust ... Earl Rozell, to recover Donald’s share of the within three years of the death of Betty distribution from the trust of his late mother, Rozell. Betty Rozell. The trial court granted judgment in favor of Earl. We hold that pursuant to the ¶3 Betty died on December 25, 2008. Donald language of the trust agreement, Donald’s died on February 14, 2009, leaving a surviving share vested upon the division date and did spouse but no children. Sharon brought the not divest upon Donald’s death. His interest action below seeking to recover Donald’s share passed to his estate. We reverse and remand of the trust for his estate. The parties tried the with instructions to grant judgment in favor of matter to the court on November 4, 2010. On Sharon as the personal representative of Don- December 16, 2010, the trial court entered its ald’s estate. judgment against Sharon and in favor of Earl, ruling the trust agreement provided that in ¶2 On October 1, 2002, Betty executed a revo- order for Donald to benefit under the trust, he cable trust agreement, which provided in part: not only had to be alive at his mother’s death, 2.04 Division of Trust and to Shares but also when the distribution was made. The upon My Death, Division Date Defined: trial court ruled Donald was not alive when Upon my death, the Co-Trustee, Earl Rozell, distribution was made, and because he had no shall immediately divide the trust princi- children, the bequest to him lapsed. pal into separate shares for the benefit in ¶4 Sharon moved for new trial. After the trial equal seven (7) shares for [sic] Watts Rozell, court denied her motion, she filed this appeal Jr., Ann Rozell Day, Don Rozell, Roger from both orders. Rozell, John Rozell, Nancy Orr and Earl Rozell, per stirpes. This date shall be called ¶5 Sharon contends the trial court erred in the “Division Date”. Each share set aside holding Donald had to survive until final dis- for a child or more remote descendant of tribution of the Trust property in order to mine shall constitute a separate and dis- receive his share. She argues Donald’s share

940 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 vested upon Betty’s death based upon the of that date, the contingency was removed and Trust provision directing Earl to divide the the beneficiaries’ interests vested. Trust into seven separate shares, each of which ¶10 A trust’s terms may postpone vesting of would constitute a new and separate trust as of a beneficiary’s interest to the happening of the division date. Sharon argues the Trust con- tained no survivorship, contingency, or residu- some future event, such as survival to a distri- ary disposition clauses requiring Donald to bution date. Hulett v. First Nat. Bank and Trust survive Betty for a specific period of time. She Co. in Clinton, 1998 OK 21, 956 P.2d 879, 884- contends Donald possessed the vested right to 885. See also Sivia v. Snyder, 1973 OK CIV APP the one-seventh share held in trust for him, and 8, 517 P.2d 812, 814 (approved for publication that right passed to his estate when he died. by the Oklahoma Supreme Court) (the trust language provided that if any beneficiary was ¶6 Sharon contends the trial court erred in not living on the distribution date, then that finding the bequest to Donald lapsed when he person’s share would go to her issue per stirp- died without issue. She argues the trust provid- es, or if she had no surviving issue, it would be ed that the beneficiaries’ share would pass to divided among the other beneficiaries.) Trust their children under certain conditions, but language may also provide for the interest of made no provision for a beneficiary who dies the beneficiary to be divested upon the hap- without issue. She points out the Trust acknowl- pening of a condition subsequent. Restate- edged a beneficiary’s estate could receive distri- ment (Second) of Trusts §129 cmt. e. butions from the Trust in Paragraph 5.03, which provided for income due to a deceased benefi- ¶11 Betty’s trust is an example of the latter ciary to be paid to the beneficiary’s estate. rather than the former. The trust agreement did not use any language establishing a distribu- ¶7 In response, Earl argues the Trust contains tion date. Paragraph 2.06 sets a three-year a specific requirement of survival to the date of deadline for distributions so that the trust can distribution in the language stating, “If any be terminated, but it does not specify a distri- beneficiary shall be deceased at the time of dis- bution date. Paragraph 2.05 provides for a tribution, their share shall be distributed to beneficiary’s share to be divested upon the their children so long as they have obtained the conditions subsequent that the beneficiary is age of 25 years or older.” Earl argues the lan- deceased and has living children. With respect guage of the Trust establishes that a deceased to Donald’s share, both conditions were not beneficiary’s portion could be distributed only met. Donald was deceased but he had no chil- to the children upon reaching the age of twen- dren. Therefore, his interest, which vested ty-five years, and because Donald did not have upon Betty’s death, was never divested. It children, his interest lapsed when he died. passed to his estate upon his death.1 ¶8 The interpretation of an unambiguous ¶12 The trial court erred in granting judg- trust agreement is a question of law which we ment in favor of Earl as the trustee of Betty’s will review de novo. Corr v. Corr, 2001 OK CIV trust. The judgment is REVERSED and this APP 31, 21 P.3d 642, 644. In construing a trust matter is REMANDED with instructions to agreement, our primary purpose is to ascertain grant judgment in favor of Sharon as the per- and give effect to the trustor’s intent. If the sonal representative of Donald’s estate and to language of the agreement is unambiguous, we direct Earl to distribute Donald’s share of the must ascertain the intent of the trustor from the trust to his estate. terms of the agreement as a whole. Id. JOPLIN, V.C.J., concurs. ¶9 We find no ambiguity in the language of the trust agreement in this case. Contingent BUETTNER, P.J., dissenting with opinion: rights vest when the contingency is removed. ¶13 The majority’s holding, that a gift in trust Randolph v. Board of Regents of Oklahoma Colleg- vested at the time of the trustor’s death and es, 1982 OK 75, 648 P.2d 825, 827. Pursuant to could not lapse when the beneficiary died the trust agreement, the contingent beneficia- before the distribution date, is incorrect pursu- ries’ rights in the trust vested upon the trustor’s ant to Oklahoma law and the unambiguous death. The trustor directed the co-trustee to intent shown in the trust document. establish separate and distinct trusts for the benefit of each beneficiary upon her death, ¶14 In her revocable inter vivos trust, the establishing that date as the Division Date. As trustor expressed her intent that her seven chil-

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 941 dren be the beneficiaries of the trust and, at would continue for ten years, at which time clause 2.04, the trustor indicated that upon her half the assets would be divided between the death, the co-trustee “shall immediately divide testator’s two daughters and the other half the trust principal into separate shares for the would remain in the trust for the care of his benefit in equal seven (7) shares for” her seven wife until her death, at which time the remain- children. The trust provided that the date of the ing funds would be divided between the two trustor’s death and the date the trust principal daughters. At the end of the ten years, the trust was to be divided would be known as the “divi- was in debt so the trustees did not distribute sion date.” The title of the following clause any assets. One daughter survived the ten year plainly shows the distribution date would be period but died before the assets were distrib- after the division date. The following two claus- uted. The trial court held that her quarter share es show the trustor’s intent regarding distribu- of the trust was a vested right and the court tion of the trust assets (emphasis added): directed the trustee to distribute that share to her estate. The appellate court framed the issue 2.05 Distribution of Income and Principal as whether at the end of the ten year period, to My Descendants After the Division the then-surviving daughter acquired a vested Date: After the Division Date, the co-trust- interest in her share of the trust, which was not ee shall have the discretionary power to divested by her subsequent death before the pay all or any portion of the income and actual distribution of the trust corpus. The principal of each share of each indepen- court noted that if an instrument provides a dent trust to or for the benefit of [seven definite time when the right to receive the leg- named children], per stirpes. If any benefi- acy accrues, then the gift vests at that time, ciary shall be deceased at the time of distribu- even though actual distribution may occur tion, their share shall be distributed to their later. Id. at 1030. The Oklahoma Supreme Court children so long as they have obtained the found that the trust showed the testator’s age of 25 years or older. Any heir not of the intent that half the trust property should be age of 25 years shall have their share held vested in and distributed to his daughters alive in trust until such time as they reach the at the end of the ten years, or if either was dead age of 25 years. on that date then to her children. Id. at 1031. 2.06 Termination of Trust: The share or pro- The court held that the daughter who survived portionate part thereof of the trust principal set the ten years had a vested interest at that time, aside for each primary beneficiary shall be held even though distribution occurred later. Id. and eventually distributed and paid over free ¶17 In Sivia v. Snyder, 1973 OK CIV APP 8, and clear of trust only after the death of 517 P.2d 813 (cert. denied), the trustor created a (trustor) subject to Article §205 to [seven living trust which provided that on his death, named children] per stirpes, within three the trustee should pay various last expenses years of the death of [trustor]. and after all of the preceding parts of the trust The trustor died December 25, 2008. Her son had been complied with, pay the residue to Donald died February 14, 2009, leaving no chil- four named persons. The trust provided that if dren. The parties agree Donald died before any of those persons were deceased but had distribution occurred. living issue at the distribution date, then the trustee should distribute their share to their ¶15 With no authority, the majority declares issue, but if the deceased left no living issue, “the contingent beneficiaries’ rights in the trust then that share would be divided between the vested upon the trustor’s death.” The majority surviving named residuary beneficiaries. After finds that the death of the trustor was the con- the trustor died, the trustee paid the expenses tingency, then notes authority that a later event as required by the trust, but the IRS proposed may divest the beneficiary’s rights, but that it additional taxes. The trustee then planned to did not in this case. Oklahoma authority shows distribute the trust to the four beneficiaries but that a trust gift vests on the distribution date, retain the amount of the proposed additional absent an express declaration to the contrary. taxes. After the partial distribution commenced ¶16 In construing a trust instrument, the but before it was complete, one of the benefi- intention of the trustor controls. In re Dimick’s ciaries died without issue. The trustee asked Will, 1975 OK 10, 531 P.2d 1027, 1030. In Dimick, the court to construe the trust to determine the testamentary trust directed that after the whether the deceased beneficiary survived corpus was delivered to the trustee, the trust until the “distribution date” so that her share

942 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 of the trust would be paid to her estate. The The distribution date cannot be more than trial court found that the deceased beneficia- three years after her date of death. But as in ry’s interest vested at the time of the testator’s Sivia, the interest of the beneficiaries does not death. The appellate court was unable to see vest on the date of the trustor’s death. Because how the trustor could have intended “distribu- Donald did not survive until the distribution tion date” to be his date of death because the date and because he did not leave children, his trust directed certain payments to be paid share lapsed under the plain language of the upon the trustor’s death, but payment of the trust instrument. residuary was not among those. Id. at 815. Indeed, the court noted that the trust provided ¶19 This outcome is also supported by the the residuary beneficiaries were to be paid after Restatement. The trust instrument here shows all the other trust provisions were complied the trustor’s intent to provide for her seven with, which necessarily indicated some later children. Restatement (Second) of Property, date. The court noted an estate is never distrib- Don. Trans. § 27.3 (1988), provides: uted on the date of death and to find otherwise If a gift is made in favor of a class described would be to give the phrase “distribution date” as “children,” “grandchildren,” “brothers,” an “interpretation contrary to its ordinary mean- “sisters,” “nephews,” “nieces,” “cousins,” ing.” Id. at 815-816. The appellate court noted or by similar class gift terms that describe a there were two remaining possibilities for the one-generation class, “distribution date” — either the date of actual distribution, or the date the trustee could first (1) a person within the primary meaning of have made distribution. The court concluded the the class gift term who dies after the dis- second option “seems to comport more nearly positive instrument takes effect but before with what the settlor most likely intended.” The such class member is entitled to distribution court found that the settlor would not have of his or her share is not excluded from the desired the beneficiaries’ enjoyment of the gift to class by reason of such death, if such death depend on accident, delay, or inconvenience. does not make impossible the fulfillment of The court held it chose: a condition, unless additional language or circumstances indicate otherwise, or an to follow the majority view, and the more applicable statute provides otherwise. practical one, that vesting in these circum- stances takes place on the first date the (2) If additional language or circumstances legacy could reasonably be paid by the indicate otherwise or an applicable statute trustee, which was when all the provisions provides otherwise, the share in the class of the trust had been complied with, with gift that such deceased class member would the exception of payment of the additional have taken had he or she lived, when the tax, for which a fund was set aside. This share of each class member is not a speci- date of course was prior to the death of fied amount, goes to enlarge the shares of Miss Sivia. To hold otherwise would be to the class members not excluded, except to find that the settlor, by using ‘distribution the extent that substitute takers are pro- date’ in the trust, provided for such unpre- vided to take in place of the deceased class dictable occurrences and delays to defeat member by additional language or circum- the gift. Such occurrences and delays would stances or by a statute. then replace the settlor’s manifest intent to give to certain named beneficiaries. We Here, distribution was conditioned upon the find such an interpretation would be com- class member or his living issue surviving until pletely contrary not only to settlor’s inten- the distribution date. Donald’s death without tions, but also contrary to the very purpose issue prevented fulfillment of that condition. for which the trust instrument was pre- ¶20 The trust instrument at issue here shows pared in the first place. the trustor’s intent that to receive a share, a Id. at 816. beneficiary must survive (or have surviving issue) by the time of distribution, which was to ¶18 In this case, the trustor clearly showed be no more than three years after the death of an intent that the distribution date differed the trustor. from the date of death and she provided for an outside limit to the distribution date, to guard ¶21 The trustee has complete discretion when against unforeseen delays as shown in Sivia. to distribute during that time frame. It also

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 943 seems clear that the trustor’s intent was to pro- in the divorce proceeding, which granted sole vide for her seven children. If any child died custody to Mother and suspended Father’s before the distribution date, without children, visitation with CF. Mother also obtained a pro- that child’s share would necessarily go to the tective order preventing Father’s contact with remaining living children. That comports with her or CF. the trust language and the trustor’s intent. ¶3 On November 23, 2010, Paternal Grand- Donald died before his interest vested and the parents filed a “Motion for Permissive Inter- trial court correctly found that his interest vention” in the divorce proceeding and sought lapsed. an order allowing visitation with their grand-

1. The trusts construed in the Dimick and Sivia cases, cited by the children. They alleged that they had estab- dissent, contained language providing for an alternative distribution lished a loving and close relationship with of the share of a beneficiary who died without issue prior to distribu- their two-year-old grandson, CF, prior to Moth- tion. Betty omitted this language from her trust. The language she included providing for the establishment of separate and distinct er’s separation from Father and that Mother trusts for the benefit of each beneficiary upon her death is absent from had recently given birth to a daughter, who the Dimick and Sivia trusts. Therefore, we are unable to conclude that Betty intended the same result reached in those cases. they had not been allowed to see. Paternal Grandparents claimed that they had a “condi- 2013 OK CIV APP 36 tional right to intervene” in the divorce pro- ceeding pursuant to “12 O.S. § 2024(B)(1)” and IN RE THE MARRIAGE OF: DIANA 1 HILLHOUSE, Petitioner/Appellant, vs. “10 O.S. § 5.” Mother objected to Paternal JEFFREY MICHAEL FITZPATRICK, Grandparents’ motion and sought its dismiss- Respondent, and MIKE FITZPATRICK and al, arguing that they had failed to allege suffi- JANIE FITZPATRICK, Intervenors/ cient grounds for the district court to interfere Appellees. with her right to make decisions regarding her children. Paternal Grandparents amended their Case No. 109,565. March 29, 2013 motion to include allegations regarding “the seriousness of the situation between [Mother APPEAL FROM THE DISTRICT COURT OF and Father] at separation including allegations OKLAHOMA COUNTY, OKLAHOMA of parental fitness, drugs, alcohol, and domes- HONORABLE CINDY H. TRUONG, tic abuse.” TRIAL JUDGE ¶4 An evidentiary hearing on Paternal REVERSED Grandparents’ motion was held on January 26, 2011, at which time CF had just had his third Aubrie E. Comp, Gary Briggs, LEGAL AID birthday. Paternal Grandparents had not seen SERVICES OF OKLAHOMA, INC., Oklahoma him since the previous May, just prior to Moth- City, Oklahoma, for Petitioner/Appellant er’s separation from Father. Paternal Grand- Roger Reneau, Bridget M. Childers, RENEAU parents testified about the close relationship & CHILDERS, Midwest City, Oklahoma, for they had developed with CF since his birth. Intervenors/Appellees Neither one of them claimed Mother was an unfit parent, and both agreed that she was JOHN F. FISCHER, PRESIDING JUDGE: good mother, who had been very protective of ¶1 Diana Hillhouse (Mother) appeals the CF. They did not believe that she had ever district court’s order granting Mike Fitzpatrick harmed, nor would she ever harm her children. and Janie Fitzpatrick (Paternal Grandparents) They did believe, however, that CF would suf- visitation with the minor child CF. Mother fer emotional harm if they were denied contin- argues that the district court lacked jurisdiction ued involvement with him. or, if it had jurisdiction, it incorrectly applied ¶5 Mother testified regarding her separation the law. from Father and how she had to seek refuge BACKGROUND from him at a domestic abuse shelter. She testi- fied regarding the times Paternal Grandparents ¶2 CF was born to Mother and Jeffrey Michael had bailed Father out of jail for various crimes. Fitzpatrick (Father) during their marriage. On She described one instance, when she observed July 7, 2010, Mother filed a petition seeking a Father in a physical altercation with his mother, divorce from Fitzpatrick. Mother requested which resulted in Father’s arrest. For those rea- sole custody of CF due to domestic abuse. On sons, she was afraid that, if granted visitation, August 19, 2010, a temporary order was entered Paternal Grandparents would either allow Father

944 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 to visit to the children or be incapable of protect- is apparent on the face of the pleadings. There- ing them and preventing his access to them, fore, we do not address the merits of Mother’s despite their assurances to the contrary. Mother evidentiary challenge. testified that she allowed her parents to visit CF STANDARD OF REVIEW because she felt safe doing so. She was provid- ing appropriate care for both of her children. ¶8 “Questions of jurisdiction may be raised at any time, either in the trial court or on ¶6 The district court granted Paternal Grand- appeal; and even in the absence of an inquiry by parents’ visitation with CF. In doing so, the the litigants, [this] court may examine jurisdic- court expressed these concerns: tion.” Woods Petroleum Corp. v. Sledge, 1981 OK What I find disturbing is when I sug- 89, ¶ 1, 632 P.2d 393, 394. Questions concerning gested that [Mother] would allow the a district court’s jurisdictional power invoke the grandparents to visit with the child with a de novo standard of review. Jackson v. Jackson, court-approved supervisor she denied that 2002 OK 25, ¶ 2, 45 P.3d 418, 422. See Stidham v. — she would not take that recommenda- Special Indemnity Fund, 2000 OK 33, ¶ 10, 10 P.3d tion. And she keeps stating that she fear[s] 880, 885 (“Once an issue is identified as jurisdic- that [Father] would show up, he would tional, it calls for a de novo review.”). show up. ¶9 This case also implicates statutory inter- I don’t believe that she’s acting in the pretation, because grandparents’ rights to best interest of her children. For that rea- court-compelled visitation with a grandchild son, and for me, I find that it’s harmful to are strictly statutory. Murrell v. Cox, 2009 OK the child if you deny the grandparents’ 93, ¶ 25, 226 P.3d 692, 698. Statutory interpreta- visitation because, for one thing, every tion, involving a question of law, also demands child want[s] to know where they come a de novo review standard. Stump v. Cheek, 2007 from. They want to know who their grand- OK 97, ¶ 9, 179 P.3d 606, 609. parents are. They want to know who their ANALYSIS father is, who their mother is, no matter how bad they are. I. Paternal Grandparents’ Rights Are Strictly Statutory And just because you have one rotten apple in the basket doesn’t mean you have ¶10 Paternal Grandparents’ right to visita- to throw the whole basket away. I mean, tion with CF exists under limited circumstanc- you can make surely [sic] there’s good es. Title 43 O.S.2011 § 109.4 provides, in perti- apples left in that basket that you can make nent part: applesauce. You can make apple pie, you A. 1. Pursuant to the provisions of this know. So for me, I believe it’s harmful. section, any grandparent of an unmarried The district court allowed Paternal Grandpar- minor child may seek and be granted rea- ents visitation with CF every other weekend sonable visitation rights to the child which based on its conclusion that without court- visitation rights may be independent of ordered visitation there would be harm to CF’s either parent of the child if: “emotional state of mind.” a. the district court deems it to be in the ¶7 Mother appeals. Her brief in chief con- best interest of the child pursuant to sub- tains two propositions of error. The first is that section E of this section, and the district court did not properly apply sec- b. there is a showing of parental unfit- tion 109.4 and Paternal Grandparents failed to ness, or the grandparent has rebutted, by overcome the presumption that, as a fit parent, clear and convincing evidence, the pre- she was acting in CF’s best interest. Mother sumption that the fit parent is acting in the emphasizes that the only evidence of harm or best interests of the child by showing that potential harm to CF was that “he would not the child would suffer harm or potential know the paternal side of the family.” In her harm without the granting of visitation second proposition of error, Mother asserts rights to the grandparent of the child, and that the district court lacked jurisdiction to enter the order for visitation in the divorce pro- c. the intact nuclear family has been dis- ceeding. We find this second proposition dis- rupted in that one or more of the following positive. The district court’s lack of jurisdiction conditions has occurred:

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 945 (1) an action for divorce, separate main- ments necessary to the validity of a court tenance or annulment involving the grand- order are jurisdiction of the person, juris- child’s parents is pending before the court, diction of the subject matter and the power and the grandparent had a preexisting rela- of the court to decide the particular matter tionship with the child that predates the and render the particular judgment at issue. filing of the action for divorce, separate Subject matter jurisdiction is essential. It is maintenance or annulment . . . . the power and authority of a court to hear and determine causes of the kind in ques- . . . . tion. Thus, a court has the jurisdiction to F. 1. The district courts are vested with try an action when it has jurisdiction of the jurisdiction to issue orders granting grand- persons and the cause is the kind of a cause parental visitation rights and to enforce triable in such court, and the power to ren- visitation rights, upon the filing of a veri- der any rightful judgment therein. Since fied petition for visitation rights or enforce- subject matter jurisdiction concerns the ment thereof. Notice as ordered by the competency of the court to determine the court shall be given to the person or parent particular matter, it cannot be waived by having custody of the child. The venue of the parties or conferred upon the court by such action shall be in the court where their consent and it may be challenged at there is an ongoing proceeding that involves any time in the course of the proceedings. the child, or if there is no ongoing proceed- Subject matter jurisdiction is invoked by ing, in the county of the residence of the the pleadings filed with the court. child or parent . . . . In re A.N.O., 2004 OK 33, ¶ 9, 91 P.3d 646, 649 “When grandparents seek a court order to (internal citations omitted). The Supreme Court compel visitation with their grandchild against found that where there was no action brought the consent of a sole custodial parent, a District pursuant to the provisions of the grandparent Court must follow the grandparent visitation visitation statute, which at that time was 10 statute.” Craig v. Craig, 2011 OK 27, ¶ 1, 253 O.S. Supp. 2000 § 52, the subject matter jurisdic- P.3d 57, 58. Grandparents’ rights to visitation tion of the district court had not been invoked are “not co-equal with that of a parent.” Mur- by proper pleadings to hear and determine the rell v. Cox, 2009 OK 93, ¶ 25, 226 P.3d 692, 698 cause, and therefore the district court had no (citing McGuire v. Morrison, 1998 OK CIV APP jurisdiction to issue an order compelling the 128, ¶ 9, 964 P.2d 966, 969). This is because parents to allow visitation. Id. ¶ 12, 91 P.3d at unlike parents, grandparents “have no consti- 650. The Supreme Court concluded that absent tutional right to custody of or visitation with compliance with the statutory provisions the their grandchildren.” Murrell v. Cox, 2009 OK district court “was not competent to pass on 93, ¶ 25, 226 P.3d at 698 (quoting Application of [the] issues” and the grandparents’ efforts to Grover, 1984 OK 20, ¶ 12, 681 P.2d 81, 83). The obtain visitation “should have been dismissed Oklahoma Supreme Court has reiterated that by the trial court for lack of subject matter the judicial power to grant grandparents visita- jurisdiction.” Id. tion is circumscribed by the terms of section ¶12 It is clear from A.N.O. that a district court 109.4, leaving the district court with no excess has no subject matter jurisdiction to consider a authority. See Craig, 2011 OK 27, ¶ 28, 253 P.3d grandparent visitation request unless the terms 57, 64 (“Consistent with our opinions from of the statute have been followed. When A.N.O. 1980 through 2009, we again hold that a grand- was decided, the district court’s jurisdiction parent’s rights to court-compelled visitation was invoked “upon filing of a verified applica- with a grandchild are statutory.”). tion for such visitation rights . . . .” 10 O.S. II. District Court Jurisdiction Supp. 2000 § 5(E) (emphasis added). That lan- guage was superseded effective May 7, 2007, ¶11 In a case involving a district court’s grant by the following language: “The district courts of visitation rights to a child’s grandparents, are vested with jurisdiction to issue orders over the parent’s objection, the Oklahoma Su- granting grandparental visitation rights and to preme Court noted: enforce visitation rights, upon the filing of a It is fundamental that jurisdiction is the verified petition for visitation rights . . . .” 10 authority by which courts take cognizance O.S. Supp. 2007 § 5 (F)(1) (emphasis added). of and decide cases, and that the three ele- We conclude that subject matter jurisdiction of

946 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 the district court to compel Mother to permit grandparent may not obtain an order compel- CF to visit Paternal Grandparents was not ling visitation from the district court “without invoked by the filing of a “Motion for Permis- either the consent of the custodial parent or sive Intervention” in Mother’s divorce pro- application of Oklahoma’s grandparent-visita- ceeding. Our conclusion is dictated by clear tion statute, 43 O.S. Supp. 2010 § 109.4.” Id. The precedent and the plain language of section Supreme Court did not address the jurisdictional 109.4. In reaching this conclusion, we are mind- issue we face in this case, because the grandpar- ful that with the most recent amendment “the ents in Craig sought transfer of their son’s paren- legislature may have intended either (a) to tal visitation rights rather than an independent effect a change in the existing law, or (b) to right of visitation pursuant to section 109.4. Our clarify that which previously appeared doubt- holding in this case is consistent with Craig. ful.” Blitz U.S.A., Inc. v. Okla. Tax Comm’n, 2003 Absent consent, a grandparent may only obtain OK 50, ¶ 19, 75 P.3d 883, 889. Nevertheless, “[t] visitation by filing a petition in a separate action he goal of any inquiry into the meaning of a pursuant to 43 O.S.2011 § 109.4. legislative act is to ascertain and give effect to the intent of the legislature.” Id. ¶ 14, 75 P.3d at CONCLUSION 888 (footnote omitted). The legislature “is pre- ¶14 Title 43 O.S.2011 § 109.4(F) provides that sumed to have expressed its intent in a stat- the district courts “are vested with jurisdiction ute’s language and to have intended what the to issue orders granting grandparental visitation text expresses.” Id. (footnote omitted). Further, rights . . . upon the filing of a verified petition.” the words of a statute are given their plain and The district court did not have jurisdiction to ordinary meaning, unless a contrary intention compel Mother to allow Parental Grandparents plainly appears. Samman v. Multiple Injury Trust visitation with CF absent strict compliance with Fund, 2001 OK 71, ¶ 11, 33 P.3d 302, 306. In Okla- the statute. The motion to intervene, filed by homa procedural practice, an application or Paternal Grandparents in the divorce proceed- motion is not the equivalent of a “petition.” See ing, did not confer jurisdiction. Therefore, we 12 O.S.2011 §§ 1031-1033 (directing when pro- reverse the district court’s order granting visita- ceedings to vacate a judgment are to proceed by tion to Paternal Grandparents. motion and when they are to proceed by petition).3 Because the words “application” and ¶15 REVERSED. “petition” have clearly different meanings in BARNES, V.C.J., and WISEMAN, J., concur. Oklahoma jurisprudence, we conclude the Leg- islature intended to clarify 10 O.S. § 5 with the 1. Title 10 O.S.2001 § 5 was renumbered as Title 43 O.S. § 109.4, effec- 2007 amendment. tive May 21, 2009. Grandparents corrected this error when they filed their amended motion for permissive intervention on January 25, 2011. ¶13 We reach this conclusion nothwithstand- 2. The original grandparental visitation statute was enacted in 1971. See 10 O.S.1971 § 5. It was subsequently amended several times, appar- ing the fact that Craig v. Craig was decided after ently in response to judicial interpretations of the statute. See In re Appli- the 2007 amendment and, therefore, the appli- cation of Herbst, 1998 OK 100, ¶ 7, 971 P.2d 395, 397 (noting that”[e]ach cable version of the statute required the filing subsequent amendment to the statute appears primarily to have been a reaction to decisions of this Court”). As previously noted, Title 10 O.S. § of a “petition” to invoke the district court’s 5 was renumbered as 43 O.S. § 109.4 effective May 21, 2009. jurisdiction. The Craig opinion recites that the 3. The district court rules contain a specific waiver provision ad- dressing the petition requirement in vacation proceedings. “In any paternal grandparents had filed a “motion” in proceeding to vacate, modify or reopen a final judgment that is com- the parents’ divorce proceeding seeking visita- menced more than thirty days after its rendition, (1) proceeding by tion with their grandchild, contrary to the moth- motion instead of by petition or by petition instead of by motion, or (2) failure to verify the petition, or (3) incorrect service of process or the er’s wishes. Craig v. Craig, 2011 OK 27, ¶ 0, 253 required notice is waived if the opposing party appears in the proceed- P.3d 57, 58. The grandparents in Craig sought a ing but does not immediately object thereto . . . .” Okla. Dist. Ct. R. 19(a), 12 O.S.2011, ch. 2, app. There is no similar expression of intent court order vesting them with their son’s visita- directed to grandparent visitation proceedings. tion rights, which he chose not to exercise. Their son, the non-custodial parent, had no objection 2013 OK CIV APP 37 to their visitation, and so the grandparents EOR DOMESTIC, LLC, a Delaware limited claimed that he could simply transfer his visita- liability company, Plaintiff/Appellee, vs. tion rights to them. The grandparents argued DAVID SHROFF, d/b/a EXCALIBUR, INC.; that they had to show only that visitation was in AVONDALE OPERATING CO., an Oklaho- the best interests of the child, and that the dis- ma corporation; and EXCALIBUR XYZ, INC., trict court could determine the visitation issue Defendants/Appellants. without application of the grandparent visita- tion statute. The Supreme Court held that a Case No. 110,100. February 22, 2013

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 947 APPEAL FROM THE DISTRICT COURT OF complained that Hull had violated its duty of TULSA COUNTY, OKLAHOMA candor by stating that Excalibur would pay franchise taxes to be reinstated,5 that Excalibur HONORABLE REBECCA BRETT owned the majority working interest in the NIGHTINGALE, JUDGE Unit, and that EOR had breached a contract REVERSED with Excalibur.6 Patrick O. Waddel, Steven K. Balman, SNEED ¶4 In response, Appellants contended that LANG HERROLD, PC, Tulsa, Oklahoma, for only after an investigation, following the April Plaintiffs/Appellees, 5, 2011 hearing, did Shroff learn that his previ- ous counsel had never filed documents to form Joseph L. Hull, III, Tulsa, Oklahoma, for Defen- Excalibur. Appellants averred that after that dants/Appellants. discovery, Shroff sought to have rights purport- Kenneth L. Buettner, Presiding Judge: edly owned by Excalibur assigned to XYZ, which Shroff knew was a corporation in good ¶1 Defendants/Appellants David Shroff, 1 standing. Appellants argued that the fact Shroff d/b/a Excalibur, Inc. (Shroff), Avondale Oper- was mistaken about the existence of Excalibur ating Co. (Avondale), and Excalibur XYZ, Inc. showed Shroff and Hull never made intentional (XYZ) (collectively, Appellants) appeal the trial misrepresentations. Appellants denied there court’s order granting a motion to disqualify was a conflict and attached waivers of any con- Appellants’ counsel, Joseph L. Hull, III, filed flict signed by Shroff and Abercrombie. by Plaintiff/Appellee EOR Domestic, LLC (EOR). On de novo review, we find the trial ¶5 Following a hearing held September 7, court erred as a matter of law in disqualifying 2011, the trial court issued its Order on Motion Appellants’ counsel. We reverse. to Disqualify October 25, 2011. In its order, the trial court included 31 findings of fact. The ¶2 EOR filed its Petition against Avondale court found EOR is a Delaware LLC; Avondale March 31, 2011.2 Hull filed an Entry of Special is Operator of the Unit; Excalibur was a corpo- Appearance in Intervention for Purposes of ration formed in 1973 which had no connection Response to Temporary Restraining Order April to Shroff and is not in good standing under the 4, 2011.3 Over the next several weeks, the parties laws of Oklahoma; Shroff is President of XYZ, filed increasingly acrimonious pleadings,4 cul- an Oklahoma corporation formed in 2008 and minating in EOR’s Motion to Disqualify Hull as currently in good standing with the Oklahoma counsel for Avondale, Shroff, and XYZ, or in the Secretary of State; EOR filed this action to oust alternative, for sanctions, filed May 25, 2011. Avondale as Operator; Hull filed a special ¶3 In its Motion to Disqualify, EOR argued appearance on behalf of Excalibur in which he that Excalibur and XYZ both claimed to be the sought to intervene to enforce the PSA; EOR owners of the majority working interest in the filed an Amended Petition May 13, 2011, in Unit. EOR asserted Hull had violated Rule which it added Shroff (d/b/a Excalibur) and 1.7(a) of the Oklahoma Rules of Professional XYZ as parties; and Hull represents Avondale, Conduct in three ways: first, by stating that Shroff, and XYZ. The court further found that both Excalibur and XYZ own the majority Shroff executed the PSA, as president of Excal- working interest in the Unit; second, by letting ibur, December 21, 2010, in which he sold an the interests of Shroff predominate over the interest in the Unit; the PSA included a repre- interests of XYZ and Avondale (by making sentation that the seller was a valid corporation arguments on behalf of XYZ and Avondale in good standing and had marketable title to designed to protect Shroff from liability for the property; Hull learned at an April 2011 executing agreements on behalf of the non-ex- hearing that Excalibur was not in good stand- istent Excalibur; and third, by refusing to say ing with the Oklahoma Secretary of State; whether he represented Excalibur to avoid per- Shroff sought to correct the misuse of the Ex- sonal exposure to a misdemeanor charge of calibur corporate name by a corrective assign- violating 68 O.S.2011 §1212. EOR additionally ment from EIG; XYZ now claims the right to claimed that Hull sought to represent Excali- receive proceeds from the sale of oil from the bur by filing a notice of default under the PSA Unit; Hull caused documents (including a on behalf of XYZ, which was not a party to the “correctional assignment” from EIG to XYZ PSA. EOR contended such conduct is subter- dated April 15, 2011) purporting to vest title to fuge requiring disqualification. EOR finally a working interest in the Unit in XYZ to be filed

948 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 in Creek County May 10, 2011; the interest XYZ loose with corporate formalities by arguing that claims in the Unit is the same as the interest Shroff (d/b/a Excalibur) and XYZ were all the claimed by Excalibur and subject to the PSA same client; and the court’s last finding of fact with EOR; Hull attempted to exercise XYZ’s was that Hull blurred the lines of corporate for- purported rights in the PSA May 16, 2011, mality and thereby potentially exposed Shroff when he sent a notice to EOR asserting default (d/b/a Excalibur) and XYZ to liability. under the PSA, which he signed as counsel for ¶6 In making conclusions of law, the trial XYZ; XYZ also contended EOR was clouding court first noted that a lawyer shall not repre- its title by claiming an interest under the PSA; sent a client if the representation involves a Hull urged contradictory positions on behalf of concurrent conflict of interest, citing Rule 1.7(a) two different clients by claiming EOR was in of the Oklahoma Rules of Professional Con- default under the PSA, which was executed by duct. The court concluded that Hull represent- a defunct corporation, Excalibur, and by claim- ed two clients with competing substantive ing that XYZ owned the property interest positions asserted in the same case, namely, because of the corrective assignment; there was that Shroff sought to enforce the PSA he exe- a direct conflict between Shroff (d/b/a Excali- cuted while doing business as Excalibur, while bur) and XYZ because both are asserting, XYZ claimed the right to receive proceeds from through Hull, that they hold rights under the the sale of oil from the same interest in the Unit PSA (Shroff and XYZ both claim an interest in and also attempted to enforce the PSA, in con- EOR’s alleged default); whether Shroff (d/b/a tending that EOR was clouding XYZ’s title. Excalibur) or XYZ exercises rights under the The court found a direct conflict in Hull’s PSA are substantive issues in direct conflict attempts to enforce the PSA for both Shroff with each other; whether the PSA may be (d/b/a Excalibur) and XYZ. The trial court enforced by Shroff (d/b/a Excalibur) or XYZ is further found that the conflict caused actual an issue to be resolved by litigation, but one harm. The court concluded that “Hull’s repre- attorney is arguing both positions on behalf of sentation of multiple clients asserting conflict- two clients; and Hull argued the positions of ing legal positions and exercising conflicting both Shroff (d/b/a Excalibur) and XYZ in a legal rights in the same case as well as disre- June 9, 2011 letter. The court noted that Hull had garding the corporate formalities warrants averred that if there was a conflict, Shroff and disqualification of Hull as counsel for Avon- XYZ had waived it. The court found that Hull dale, Shroff and XYZ.” spoke to Shroff for twenty minutes about poten- tial conflicts, but that only two minutes were ¶7 Appellants now appeal the order disqual- 7 devoted to a possible conflict between Shroff ifying Hull from representing any of them. We and XYZ, and that Shroff gave informed consent review the order de novo, to determine whether on behalf of XYZ in the same document in which real harm to the judicial process is likely to he gave his personal consent to Hull’s represen- result if Hull is not disqualified. Arkansas Valley tation. The court noted Abercrombie had signed State Bank v. Phillips, 2007 OK 78, 171 P.3d 899. an affidavit stating his consent to Hull’s possible An order granting a motion to disqualify conflict, but the court found no testimony or counsel is a final order subject to appellate evidence about the information Hull gave Aber- review…. When reviewing the order, we crombie to obtain his consent. The trial court review the trial court’s findings of fact for next found that Hull failed to explain 68 O.S.2011 clear error and carefully examine de novo §1212 to Shroff before the hearing on the motion the trial court’s application of ethical stan- to disqualify and Shroff was unaware of the pos- dards…. A litigant’s choice of counsel may sible consequences of operating a business that be set aside under limited circumstances, has been suspended by the Oklahoma Secretary where honoring the litigant’s choice would of State, and Hull did not advise Shroff on the threaten the integrity of the judicial pro- potential impact §1212 could have on enforce- cess. This most often arises where an ment of the PSA. The court next noted that Hull attorney’s compliance with ethical stan- argued it did not matter whether the interest in dards of professional responsibility are the Unit was held by Shroff (d/b/a Excalibur) or challenged…. However, motions to dis- XYZ because they were one party, which the qualify counsel for failure to comply with court held completely ignored the corporate the Rules of Professional Conduct are not structure of XYZ and Oklahoma corporations to be used as procedural weapons. Dis- law; the court concluded Hull played fast and qualification is such a drastic measure that it

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 949 should be invoked if, and only if, the Court is ¶9 Appellants contend the trial court erred in satisfied that real harm is likely to result. finding a conflict, asserting Shroff and XYZ both seek to enforce the PSA as against EOR, Id. at ¶8 and ¶13 (emphasis added; footnotes but not as against each other. Appellants argue omitted). that whether Shroff’s assignments from Excali- ¶8 EOR contended, and the trial court agreed, bur to XYZ were effective, and therefore wheth- that Hull’s representation of Appellants vio- er the PSA is enforceable against EOR generally lates Rule 1.7 of the Oklahoma Rules of Profes- and whether by Shroff or by XYZ, are ques- sional Conduct. That rule provides: tions for litigation, rather than a conflict requir- ing disqualification of their counsel. Appellants (a) Except as provided in paragraph (b), a suggest there can be no conflict after the assign- lawyer shall not represent a client if the ment, noting that Hull’s clients claim only one representation involves a concurrent con- interest under the PSA: the interest Shroff or flict of interest. A concurrent conflict of Excalibur originally contracted for is the same interest exists if: interest purportedly assigned to XYZ. Appel- (1) the representation of one client will be lants also contend that because Excalibur, as directly adverse to another client; or Shroff believed it to be, never existed, the Okla- homa Franchise Tax Code, 68 O.S.2011 §§1201 (2) there is a significant risk that the repre- et seq., cannot apply to Shroff or Excalibur and sentation of one or more clients will be the trial court erred in finding Shroff or Hull materially limited by the lawyer’s respon- violated §1212. Appellants further assert the sibilities to another client, a former client or trial court erred in finding Hull failed to prop- a third person or by a personal interest of erly explain that section to Shroff because it the lawyer. would not apply to what Shroff believed was Excalibur, which in fact never existed. (b) Notwithstanding the existence of a con- current conflict of interest under paragraph ¶10 EOR contends that because Excalibur (a), a lawyer may represent a client if: does not exist, it could not consent to a conflict, and that Shroff and XYZ each claimed the right (1) the lawyer reasonably believes that the to payment under the PSA so that their inter- lawyer will be able to provide competent ests were in conflict and Hull could not repre- and diligent representation to each affected sent both of them. We note that EOR and the client; trial court viewed the PSA as voidable because (2) the representation is not prohibited by it was executed on behalf of a suspended cor- law; poration. Under Oklahoma law, however, the effect of that fact is that Shroff may be held (3) the representation does not involve the personally liable under the agreement.8 Con- assertion of a claim by one client against versely, Shroff has no standing to seek to another client represented by the lawyer in enforce the PSA on behalf of Excalibur.9 Accord- the same litigation or other proceeding ingly, it is difficult to see any conflict between before a tribunal; and Shroff and XYZ. If Shroff and XYZ were trying to pin liability on each other, a conflict could be (4) each affected client gives informed con- shown, but at this stage, neither has filed an sent, confirmed in writing. Answer or made any claim against the other. Under Rule 1.7, an actual concurrent conflict of ¶11 EOR does not dispute Shroff’s conten- interest will be found where the representation tion that he mistakenly believed he had incor- of one client is directly adverse to another cli- porated Excalibur and believed it was in good ent, or where there is a significant risk the rep- standing at the time he executed the PSA as resentation of one client will be materially lim- president of Excalibur. EOR argues that Shroff ited by the lawyer’s responsibilities to another (individually or d/b/a Excalibur, Inc.) was not client. EOR has not articulated a conflict as to a party to the PSA and could not assign it nor Avondale, nor explained how Hull’s represen- enforce it. Because Shroff or Excalibur could tation of Avondale impacts his representation not act in this way, we find no conflict of inter- of Shroff or Excalibur. We therefore only con- est presented by any purported representation sider EOR’s claims of a conflict in the positions of Excalibur. EOR also contends that because of Excalibur and XYZ. Excalibur could not assign the PSA to XYZ,

950 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 then XYZ may not enforce the PSA. This state- the parties in litigation (by removing any corpo- ment additionally shows no conflict between rate shield, for example), but that conduct is not Shroff and XYZ. a basis for disqualification so long as the parties have consented. Similarly, the fact that the PSA ¶12 The trial court’s questioning of Hull also erroneously stated that Excalibur was a valid shows there is no actual conflict. The trial court corporate entity which owned the rights in the had determined that because Excalibur did not Unit may indicate a breach of the contract or exist at the time the PSA was entered, there was no contract for Shroff to either enforce as Excali- material misrepresentation, but it does not show bur or assign to XYZ. Hull noted at the hearing a concurrent conflict of interest to provide a that the issue of the validity of the contract and basis for disqualifying Hull. As to Rule 1.7(b)(3), its enforceability (either by Shroff or by XYZ) as we have noted above, Shroff and XYZ have were matters for litigation, but there could be no not made claims against each other. conflict where Excalibur did not exist. ¶15 On the question presented by Rule 1.7(b) ¶13 The record shows that Hull represented (4), the trial court found insufficient proof that Shroff when he executed the PSA mistakenly Shroff and XYZ had knowingly waived the on behalf of Excalibur. The interest in the Unit conflict, despite their signed waivers. Specifi- which Excalibur purported to own in the PSA cally, the court found that Hull failed to explain had been conveyed by EIG Petroleum, LLC.10 the implications of §1212 to Shroff. However, After Hull and Shroff learned, at the April 5, because there is no dispute that Excalibur (as 2011 hearing that Excalibur did not exist, they related to Shroff) never existed, we question caused EIG to file a “Correctional Assignment, what Hull would have explained about §1212 Bill of Sale and Conveyance” May 10, 2011. to Shroff. We disagree with EOR that if a con- That document provided that any reference to flict existed here it was so egregious that it was Excalibur in the original Assignment, Bill of non-waivable. Sale and Conveyance was corrected to reflect ¶16 Our review of the record shows no true XYZ. If that document was effective, then nec- conflict between Shroff and XYZ. Although it is essarily, any interest purportedly owned by possible that once Appellants have filed an Excalibur could not be enforced, by it if it answer a true conflict may be revealed, we cau- existed or by Shroff, after the correctional tion the parties that motions to disqualify are assignment. Hull sought to enforce the PSA on not to be used as procedural weapons. The behalf of either Shroff or XYZ, by serving question of whether any one of the Appellants notices of default on EOR, but because the PSA may enforce the PSA is a proper subject for liti- involves one interest, there is no way he could gation, but the record shows Shroff and XYZ enforce the PSA for both of them. While Shroff are not in conflict even though each has accused and XYZ are legally distinct parties, Hull cor- EOR of being in default under the PSA. rectly avers there is no real distinction nor adversity between them for purposes of the . . . a party litigant in a civil proceeding still litigation. has a fundamental right to employ and be heard by counsel of his or her own choos- ¶14 Even if we considered those two positions ing. The right to select counsel without to be directly adverse and thereby showing a state interference is implied from the nature concurrent conflict, the inquiry does not end of the attorney-client relationship in our there. A concurrent conflict of interest may be adversarial system of justice, where an waived under Rule 1.7(b). Hull has averred that attorney acts as the personal agent of the he reasonably believes he will be able to dili- client and not the state. It is also grounded gently represent the interests of each client. As to in the due process right of an individual to Rule 1.7(b)(2), the representation is not illegal, make decisions affecting litigation placing despite EOR’s claim that Hull has violated 68 his or her property at risk. An individual’s O.S.2011 §1212 by seeking to enforce the PSA on decision to employ a particular attorney behalf of Excalibur. Because Excalibur cannot can have profound effects on the ultimate sue or be sued, any such pleadings filed on outcome of litigation. Legal practitioners behalf of Excalibur may be dismissed, but they are not interchangeable commodities. do not amount to illegal representation. Indeed, EOR’s contention that Hull has “played fast and Arkansas Valley, supra, at ¶12. We have reviewed loose with corporate formalities” indicates Hull the record de novo, and find clear error in the trial may have engaged in conduct which could bind court’s finding of a concurrent conflict of interest

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 951 and that real harm is likely to result from Hull’s they were entered by Excalibur while it was suspended. EOR also made a claim for fraud against Shroff for inducing EOR to enter the representation of Appellants. REVERSED. PSA with a suspended corporation and for inducing EOR to pay over $1.2 million based on Shroff’s fraudulent representations. EOR assert- JOPLIN, C.J., and BELL, J., concur. ed it was entitled to rescind the PSA. EOR additionally made a claim for breach of contract against Shroff. EOR made similar claims against Avondale and Shroff for fraudulent representation, recission, and 1. A key fact in this case is that during the litigation, Shroff learned breach of the Operating Agreement, the Working Agreement, and the from EOR that Excalibur, Inc. was not a corporation in good standing Farmout Agreement. Lastly, EOR sought a constructive trust or equi- with the Secretary of State, and indeed had not been a corporation filed table lien on Shroff’s and Avondale’s interests in the Unit. on behalf of Shroff (Excalibur, Inc. was an unrelated corporation that EOR filed May 17, 2011 its objection to Avondale’s motion for pro- had not been in good standing since 1997). In this decision, we refer to tective order quashing deposition and seeking an order to mediate. A the entity which Shroff mistakenly believed existed and he was the week later, EOR filed two applications seeking the immediate appoint- principal of as “Excalibur”. Because that corporation was defunct and ment of receivers for Excalibur and XYZ. At the same time, Avondale the corporate name was not related to Shroff, the parties later referred sought an order that its motion to dismiss was deemed confessed. to Shroff, d/b/a Excalibur, Inc. to indicate acts and agreements made 5. EOR has acknowledged that Shroff discovered Excalibur was by Shroff purportedly as principal of Excalibur, Inc. never a corporation he was a part of and Shroff could not have Excali- 2. EOR alleged it had entered an Operating Agreement December bur reinstated. 21, 2010, in which Avondale was the operator and EOR was the non- 6. EOR also argued below and in its appellate brief that Hull acted operator of the Cottonwood Redfork Sand Unit (“the Unit”). EOR in bad faith generally by arbitrarily canceling mediation, ignoring the asserted Avondale worked through agents, including its principal, R.J. trial court’s order to place disputed funds in escrow, and other similar Abercrombie, and “Consulting Chief (of) Petroleum and Mechanical acts. We do not approve of the conduct and tactics alleged, and they Engineering, Dave Shroff, d/b/a Excalibur, Inc. and Excalibur XYZ, may be the proper subject of sanctions, but those allegations are not Inc.” EOR claimed it was exercising its right under the agreement to relevant to the question of a conflict of interest requiring disqualifica- remove Avondale as the operator, because Avondale had breached its tion of a party’s chosen counsel. The trial court did not reach EOR’s fiduciary duty to EOR to account for funds and was not capable of alternative request for sanctions and we do not consider those allega- operating the unit in the manner required by the Oklahoma Corpora- tions in this appeal. tion Commission’s rules. EOR averred the OCC had issued a contempt 7. In an order filed February 13, 2012, the Oklahoma Supreme Court citation against Avondale, and Abercrombie had threatened the life of stayed further proceedings in this case while this appeal is pending. EOR’s principal, Jim Somers, on three occasions. EOR also alleged 8. In McNitt Const., Inc. v. Economopoulos, 2001 OK CIV APP 45, ¶4, Avondale had ignored agreements requiring EOR’s consent before 23 P.3d 983, the Oklahoma Court of Civil Appeals explained: major decisions involving the unit. EOR asserted these actions showed When a corporation’s charter is suspended for failure to pay its a threat of irreparable harm if Avondale continued as Operator. EOR franchise tax, its officers are liable as though they were partners asked for a temporary restraining order and preliminary injunction, an for any corporate debts “created or incurred” during suspension order removing Avondale as Operator, and an accounting. EOR addi- with the officer’s “knowledge, approval, or consent.” 68 O.S.1991 tionally sought judgment and damages for breach of fiduciary duty. § 1212(c). The legislative intent of this section is to prevent a 3. Hull asserted he was appearing on behalf of Excalibur, which he suspended corporation from performing any act. Kearney v. Wil- claimed owned 89.6875% working interest in the unit and was the only liams, 1997 OK CIV APP 56, 946 P.2d 273, 275. Because the corpo- party capable of voting to remove the Operator. Hull averred that ration has ceased to have the capacity to do business in the State Excalibur did not agree with EOR’s allegations against Avondale, and of Oklahoma, corporate officers have only the power to create denied that Avondale had breached the operating agreement as personal liability and cannot legally act for the corporation. Id. alleged in EOR’s Petition. Hull asserted Excalibur sought an order 9. State ex rel. Christian v. McCauley, 2008 OK CIV APP 77, ¶¶11-12, allowing it to intervene to object to EOR’s request for temporary 193 P.3d 615; 68 O.S.2011 §1212. restraining order, as well as an order denying the TRO and for attorney 10. The original Assignment, Bill of Sale and Conveyance, which fees and other relief. Hull attached the affidavit of Shroff, and other conveyed 100% working interest and 75% net revenue interest in the materials, in support of his pleading. Unit from EIG to Excalibur, was filed December 22, 2010. On the same 4. Briefly summarized, EOR filed its Response to Request of date, an Assignment, Bill of Sale and Conveyance was filed by which Excalibur to Intervene April 20, 2011. EOR asserted Excalibur had been Excalibur purported to convey an undivided 13.75% of 75% of all right suspended January 10, 1997 for failure to pay franchise taxes and title and interest held by Excalibur to EOR. A Correctional Assignment, accordingly was not an existing Oklahoma corporation. EOR con- Bill of Sale and Conveyance purporting to correct the name of the tended that at the April 5, 2011 hearing on EOR’s application for tem- grantor in that conveyance, from Excalibur to XYZ, was filed and porary restraining order, Hull promised that Excalibur would pay the signed by Shroff as President of XYZ. franchise taxes due and become a corporation in good standing by April 6, 2011, but that it had not done so by April 20, 2011. EOR asserted that because Excalibur was not in good standing, it could not 2013 OK CIV APP 38 intervene. Also on April 20, 2011, Avondale filed its Motion to Dismiss, for HSRE-PEP I, LLC, a Delaware limited failure to state a claim, in which it also sought to have the temporary liability company, substituted as Plaintiff for restraining order dissolved, and EOR filed its Motion to Settle Form of Order (for temporary restraining order). In the next days, Avondale FIRST UNITED BANK AND TRUST CO., responded to EOR’s motion to settle form, and EOR objected to the an Oklahoma banking association, Plaintiff/ response. Appellant, vs. HSRE-PEP CRIMSON PARK EOR filed its Motion for Immediate Status Conference May 2, 2011, in which it claimed Avondale was acting in bad faith in the litigation. LLC, a Delaware limited liability company, Avondale filed the same day its motion seeking a protective order substitute as Defendant for FIRST UNITED quashing the notice of deposition of Abercrombie and seeking an order to mediate. These pleadings and the email messages attached reveal PROPERTY HOLDING COMPANY, LLC, the parties had reached an impasse over whether EOR’s responses to SERIES B, a series of First United Property requests for documents were due April 28 or April 29, 2011. EOR con- tended Avondale refused to attend the May 2 mediation because the Holding, LLC, an Oklahoma limited liability answers were delivered April 29. EOR claimed it provided the company; BENEFIT BANK, Frisco Branch; responses within ten days of the date the requests were received. AIRTIME INC., an Oklahoma corporation; Avondale filed a response to EOR’s request for immediate status con- ference May 5, 2011, in which it denied acting in bad faith but agreed MITCHELL GEE, an individual; SAUNDRA a status conference was necessary. DESELMS, Treasurer for Cleveland County, EOR responded to Avondale’s Motion to Dismiss May 13, 2011. EOR filed an Amended Petition the same day, in which it added Shroff Oklahoma; and the BOARD OF COUNTY and XYZ as defendants. EOR sought a judgment declaring that Shroff COMMISSIONERS OF CLEVELAND was responsible for the acts, omissions and liabilities of Excalibur dur- ing the period it was suspended as a corporation and that the PSA, COUNTY, OKLAHOMA, Defendants, and Workover Agreement, and Farmout Agreement were void because BENEFIT BANK, Plaintiff/Appellee, vs.

952 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 ADUDDELL DEVELOPMENT GROUP, costs under 42 O.S. § 176. In No. 109,777, this LLC; ODG-OU, LLC; FIRST UNITED BANK Court affirmed the trial court’s order finding & TRUST CO.; FIRST UNITED PROPERTY HSRE’s mortgage lien had first priority and HOLDING COMPANY, LLC, SERIES B, a granting summary judgment in favor of HSRE. series of First United Property Holding ¶3 The issue on appeal is whether HSRE is Company, LLC; MITCHELL GEE d/b/a entitled to recover attorney fees and costs from AIRTIME, INC.; GARY D. BROOKS; Benefit Bank under 42 O.S. § 176. Title 42, § 176 KENNY W. THOMAS; DAVID W. provides that “[i]n an action brought to enforce ADUDDELL; and J. GLENN RANKIN, any lien the party for whom judgment is ren- Defendants. dered shall be entitled to recover a reasonable Case No. 110,288; (Comp. w/109,777) attorney’s fee, to be fixed by the court, which February 8, 2013 shall be taxed as costs in the action.” Oklaho- ma follows the American Rule as to the recov- APPEAL FROM THE DISTRICT COURT OF ery of attorney fees. The Rule is generally that CLEVELAND COUNTY, OKLAHOMA each litigant pays for their own legal represen- HONORABLE TRACY SCHUMACHER, tation, and our courts are without authority to JUDGE assess attorney fees in the absence of a specific statute or contract allowing for their recovery. AFFIRMED State ex rel. Tal v. City of Okla. City, 2002 OK 97, Rob F. Robertson, John M. Krattiger, GABLE ¶ 16, 61 P.3d 234, 243. Whether HSRE is enti- GOTWALS, Oklahoma City, Oklahoma, for tled to an award of attorney fees is a question Plaintiff/Appellant HSRE-PEP I, LLC, of law subject to de novo review. Finnell v. Seis- mic, 2003 OK 35, ¶ 7, 67 P.3d 339, 342. The Lyle R. Nelson, Nicholas A. Johnson, ELIAS, appellate court has the plenary, independent BOOKS, BROWN & NELSON, P.C., Oklahoma and nondeferential authority to reexamine a City, Oklahoma, for Defendant/Appellee Ben- trial court’s legal rulings. Id. efit Bank. ¶4 HSRE argues the trial court erroneously Kenneth L. Buettner, Presiding Judge: interpreted 42 O.S. § 176 to mean that a mort- gagee can only recover its fees and costs from ¶1 Plaintiff/Appellant HSRE-PEP I, LLC the borrower in a foreclosure action. HSRE (HSRE) appeals the trial court’s order denying relies on Ivey v. Henry’s Diesel Serv., Inc., 1966 its application for attorney fees and costs based OK 170, 418 P.2d 634, for the proposition that § on 42 O.S.2011 § 176. After de novo review, we 176 allows prevailing parties to recover fees hold that HSRE is not entitled to an award of and costs from the principal adverse party, attorney fees against Defendant/Appellee Ben- even when that party is a competing lienholder efit Bank, because Benefit Bank is an incidental and not the borrower. HSRE contends that Ben- defendant, not the principal defendant. The efit Bank was its principal adverse party because trial court’s order is AFFIRMED. it was the only contesting party in the foreclo- ¶2 This appeal arises from two commercial sure action. HSRE argues that Benefit Bank’s mortgage foreclosure actions involving an opposition to a non-judicial foreclosure settle- 2 apartment complex in Norman, Oklahoma.1 ment between First United and mortgagor Two mortgagees, HSRE and Benefit Bank, ODG-OU caused HSRE to file the foreclosure sought judicial determination that their respec- action and incur attorney fees and costs. tive mortgage liens were prior and superior to ¶5 Benefit Bank argues that the mortgagor is all other liens against the apartment complex. always the principal adverse party in a foreclo- The trial court determined HSRE’s mortgage sure action, and clearing junior liens is simply lien had first priority and granted summary a part of any foreclosure. Benefit Bank explains judgment in favor of HSRE. Benefit Bank that competing liens are the result of the bor- appealed the trial court’s order granting sum- rower’s actions and, therefore, the borrower is mary judgment in favor of HSRE (No. 109,777). ultimately responsible for attorney fees and Meanwhile, HSRE filed an application to recover costs associated with clearing title in the event attorney fees and costs from Benefit Bank. The of a foreclosure. Benefit Bank relies on Voelkle v. trial court denied the application for attorney Sisemore, 1959 OK 51, 338 P.2d 1080, and Fourth fees and costs, and HSRE appeals. HSRE argues National Bank of Tulsa v. Appleby, 1993 OK 153, it is entitled to an award of attorney fees and 864 P.2d 827.

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 953 ¶6 In Voelkle, the plaintiffs/mortgagees filed change the general rule. The plaintiff’s pur- a foreclosure action against the principal defen- pose in coming into court was to foreclose dant/mortgagor. See 1959 OK 51, 338 P.2d at its mortgage and convert its lien or condi- 1081. The plaintiffs/mortgagees also named tional estate into an absolute estate. The incidental defendants who claimed some right, clearing off of junior liens, claims, and title or interest in the mortgaged property. Id. equities is a part of its task, and under the Two incidental defendants filed answers and statute in question plaintiff is allowed a cross-petitions asserting lien claims against the reasonable attorney’s fee, we think, against property and “praying that their claimed liens the principal defendant and the res, whether be adjudged paramount to all others, including that defendant defends or defaults, and we do the mortgage lien of the plaintiffs.” Id. The trial not understand such reasonable fee to be mea- court determined the plaintiffs/mortgagees’ sured alone by the services necessary to bring- lien had first priority and the incidental defen- ing the suit and the prosecution of the matter dants’ liens had lesser priority. Id. Judgment against the principal defendant. was entered against the mortgagor, which Id. (quoting Continental & Commercial Trust & included an award of attorney fees. Id. In addi- Savings Bank v. Continental Supply Co., 32 F.2d tion to the attorney fees recovered from the 740, 742 (8th Cir. 1929)) (emphasis original to principal defendant/mortgagor, plaintiffs/ Voelkle). The Supreme Court rejected the plain- mortgagees filed an application for attorney tiffs/mortgagees’ argument “that [the compet- fees against the two incidental defendants ing lienholders] cannot be considered ‘incidental based on 42 O.S.1951 § 176. Id. at 1081-82. The defendants’ within the general rule, because of application for attorney fees against the inci- the force and means they used in establishing dental defendants was denied, and the plain- and enforcing their claimed liens.” Id. tiffs/mortgagees appealed. ¶8 HSRE has raised the same issue and is ¶7 The issue on appeal in Voelkle was wheth- essentially making the same argument as the er “[i]ncidental defendants in mortgage fore- plaintiffs/mortgagees in Voelkle. The only dis- closure who do more than defend their lien, tinguishable fact between this case and Voelkle but affirmatively seek by cross-petition and is that the plaintiffs/mortgagees in Voelkle had evidence to establish their lien against the previously obtained a judgment against the plaintiff’s interest in the land have subjected principal defendant/mortgagor that included themselves to attorney’s fees assessed as costs an award of attorney fees. This fact does not if unsuccessful as against such plaintiffs on alter our analysis. The general rule that the such issue.” Id. at 1082. The Supreme Court of mortgagee is not entitled to an award of attorney Oklahoma set forth the general rule that attor- fees against incidental defendants is not depen- ney fees are not allowed against incidental dent on the mortgagee having previously recov- defendants: ered attorney fees from the principal defendant/ Statutes of this character are primarily mortgagor. HSRE may have had a contractual or intended to reimburse the principal parties statutory right to an award of attorney fees from the principal defendant/mortgagor Crimson to the cause, when forced to resort to the 3 courts to enforce or defend their rights. In Park. Attorney fees awarded to the mortgagee foreclosure cases, it is common knowledge and against the mortgagor in the principal action that there are usually numerous defen- should include a fee for the time and effort dants, brought in with the principal one, in expended in clearing junior liens. HSRE elected order to clear the title of outstanding equi- not to pursue an award of attorney fees against ties, liens, and claims. However, we think mortgagor Crimson Park. the practice observed by the courts gener- ¶9 The Supreme Court reiterated the Voelkle ally, if not universally, is to allow attorney’s holding in Fourth National Bank of Tulsa v. Appleby, fees under such statutes against the principal 1993 OK 153, 864 P.2d 827. In Appleby, the plain- defendant debtor, and against the particular res, tiff/mortgagee filed a foreclosure action against the subject of the litigation, and not against the principal defendant/mortgagor, named an other incidental defendants, brought in for incidental defendant with mechanic’s and mate- the purposes above suggested. We do not rialman’s liens against the property, and alleged think the fact that some of these incidental its mortgage lien was superior to the liens of the defendants may resist in good faith should, in incidental defendant. Id. at 829-830. The inciden- the absence of some clear statutory provision, tal defendant filed a counterclaim against the

954 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 plaintiff/mortgagee and asserted its mechanic’s ¶11 Additionally, Benefit Bank argues HSRE’s and materialman’s liens had priority over plain- appeal is frivolous and seeks appeal-related tiff’s mortgage lien. Id. at 830. The Supreme attorney fees. Benefit Bank’s request for appeal- Court determined that the plaintiff/mortgagee’s related attorney fees is denied. mortgage lien had priority over the mechanic’s ¶12 AFFIRMED. and materialman’s liens of the incidental defen- dant. Id. at 834. The Court also held that the JOPLIN, C.J., and BELL, J., concur. plaintiff/mortgagee, as prevailing party on the 1. Case No. CJ-2010-1220 and Case No. CJ-2010-1221 were consoli- incidental defendant’s counterclaim, was not dated by the trial court. entitled to a fee against the incidental defendant 2. The trial court substituted Plaintiff HSRE for First United Bank Id Voelkle & Trust Co November 3, 2010. under 42 O.S. § 176. . at 834-835 (citing , 3. The trial court substituted Defendant HSRE-PEP Crimson Park 4 1959 OK 51, 338 P.2d 1080). The Court held: LLC for ODG-OU November 3, 2010. 4. The Appleby court noted that “[t]here is, of course, no question [In Voelkle], as here, the mortgagee pre- about [plaintiff/mortgagee’s] right to an attorney’s fee against [princi- pal defendant/mortgagor] under its notes and mortgages.” 1993 OK vailed against a lien claimant who had 153, 864 P.2d at 834. However, the plaintiff/mortgagee was not entitled filed a counterclaim in which he asserted to an additional fee against the incidental defendant. See id. that his lien was superior to the mortgag- 2013 OK CIV APP 39 ee’s mortgage. We held that the mortgagee was not entitled to an attorney’s fee against the IN RE GUARDIANSHIP OF KANDEE ANN other lien claimant besides the fee to which he MARY CATHERINE BOROVETZ. KANDEE was entitled from the principal defendant as ANN MARY CATHERINE BOROVETZ, part of his judgment on the note and mortgage. Ward, Applicant/Appellant, vs. FRANK We based our holding on the fact that the BOROVETZ, JR., Limited Co-Guardian, primary subject of a foreclosure action is Respondent/Appellee. against the mortgagor and the property Case No. 110,304. March 29, 2013 securing the debt, and that clearing junior liens is a part of the task of foreclosure. A APPEAL FROM THE DISTRICT COURT OF lien claimant in a mortgage foreclosure action MUSKOGEE COUNTY, OKLAHOMA is an “incidental defendant,” although he files a HONORABLE A. CARL ROBINSON, JUDGE counterclaim. The attorney’s fee awarded the mortgagee in the principal action, there- REVERSED AND REMANDED fore, should include a fee for the time and D.E. Dismukes, Tulsa, Oklahoma, for Appli- effort expended in clearing junior liens. cant/Appellant, Id. at 835 (emphasis added). D.D. Hayes, Muskogee, Oklahoma, for Respon- ¶10 Benefit Bank is a lien claimant. Accord- dent/Appellee. ing to Appleby, a lien claimant in a mortgage Kenneth L. Buettner, Presiding Judge: foreclosure action is an incidental defendant even if it claims that its lien is prior and supe- ¶1 Kandee Ann Mary Catherine Borovetz rior to all other liens. The primary subject of (Ward) appeals the trial court’s denial of her the foreclosure was against mortgagor Crim- Application to Terminate or Modify Limited son Park and the property securing the debt. Co-Guardianship, in which Ward sought to Clearing junior liens, including Benefit Bank’s have Respondent Frank Borovetz, Jr. (Father) mortgage, was part of the task of foreclosure. removed as a limited co-guardian of Ward. Based on the Supreme Court’s decisions in The trial court’s order requiring Ward to con- Voelkle and Appleby, we hold that HSRE is not tinue visitation with Father is contrary to law entitled to an award of attorney fees against and we reverse that part of the order. The par- Benefit Bank based on 42 O.S. § 176 and affirm ties have informed the court that during the the order of the trial court. But cf. Ivey v. Henry’s pendency of the appeal, Ward’s other limited Diesel Serv. Inc., 1966 OK 170, 418 P.2d 634 co-guardian, Marvelene Borovetz (Mother), (rejecting Voelkle and relying on Commercial has died. We reverse and remand for a new hearing to consider the appointment of a lim- Discount Co. v. Midwest Chevrolet Co., 1956 OK ited guardian for Ward.1 172, 301 P.2d 356, in which the lien claimant was the principal and only defendant). We also ¶2 Ward is the adult daughter of Mother and affirm the trial court’s order with respect to the Father. In 1998, the trial court found Ward was denial of costs. a partially incapacitated person and appointed

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 955 Mother and Father as her limited co-guardians. ¶6 We review an order on a motion to termi- The 1998 order made Mother the primary lim- nate a guardianship to determine whether it is ited co-guardian, authorized to oversee Ward’s against the clear weight of the evidence or con- basic needs and to assist her in decisions on her trary to law. In re Guardianship of C.D.A., 2009 residence, health, safety, and financial resourc- OK 47, 212 P.3d 1207. es. The 1998 order authorized Father to oversee ¶7 “A guardian is a person appointed by the and assist Ward in decisions regarding quality court to take care of the person or property of of life, education, and socialization, as well as another.” 30 O.S.2011 §1-105. Under the Okla- to make arrangements for counseling, voca- homa Guardianship and Conservatorship Act, tional and rehabilitation services, and social guardians may be general, limited, or special. activities. Ward lived with Mother, and the 30 O.S.2011 §1-108. In this case, Ward has been Order Approving Guardianship Plan directed judicially determined to be partially incapaci- that Father “have access to” Ward every other tated, and she is therefore subject to a limited weekend in order to carry out his duties as co- guardianship.2 A limited guardian is autho- guardian, which the parties and the trial court rized to exercise limited powers over the per- treated as a visitation order. son and/or property of the ward within the state. 30 O.S.2011 §1-109(B). ¶3 Ward filed her Application to Terminate or Modify Limited Co-Guardianship in July ¶8 In her appeal, Ward first contends the trial 2011. Ward asserted that her relationship with court erred in forcing her to continue visitation Father had deteriorated to the point that the with Father. Ward notes that the Act provides, twice-monthly visitation had begun to adverse- in two sections, that a limited guardian shall 3 ly affect Ward’s health. Ward asked the court to not have custody of a ward. Additionally, the either terminate Father’s limited co-guardian- Act provides that a limited guardian of a par- ship or terminate the requirement that Ward tially incapacitated person shall assure that the have visitation with Father. ward resides “in the least restrictive, most nor- mal setting consistent with the requirements for ¶4 Following a hearing, the trial court issued his health or safety.” 30 O.S.2011 §3-118(B)(1)(b). its Order November 30, 2011, in which it Ward presented medical evidence to support her denied Ward’s application to terminate Father contention that the visitation causes stress and as a co-guardian. The order further directed anxiety and is therefore detrimental to her health. that Ward’s visitation with Father “should Father responds that visitation is necessary for resume as soon as possible . . .” The trial court him to fulfill his duties under the Guardianship denied Ward’s motion to vacate its order Janu- Plan. Father has not presented authority sup- ary 5, 2012 and she now appeals. porting enforced overnight visitation between a ward and her limited co-guardian.4 We agree ¶5 During the pendency of the appeal, Ward that if Father remains as a limited co-guardian, sought to have the visitation order stayed, he may require reasonable access to Ward to ful- which the Oklahoma Supreme Court granted fill his duties, but forcing Ward to submit to June 18, 2012. The appeal was assigned to this twice monthly weekend visitation at Father’s court January 10, 2013. Father filed his Emer- house against her will is contrary to the Act and gency Motion to Lift or Vacate Stay February is detrimental to Ward’s health. We therefore 19, 2013. Father asserted that Mother died in reverse the denial of Ward’s request to terminate February 2013, leaving him as the remaining visitation with Father. limited co-guardian. He alleged he had filed ¶9 Ward’s other claim on appeal is that the petitions to be named sole limited guardian or trial court erred in denying her request to ter- sole guardian, and he was concerned that those minate Father’s status as limited co-guardian. petitions violated the June 18, 2012 stay of the As noted above, the parties have informed this proceedings. Ward responded, agreeing Moth- court that Mother has died during the pen- er had died, but contending Ward was in a safe dency of the appeal. The Act provides that on home and her sister was managing her finan- the death of one joint guardian, the power con- cial affairs, so that no emergency existed requir- tinues in the survivor until a further appoint- ing lifting the stay. Because we reverse and ment is made by the court. 30 O.S.2011 §4-503. remand for further proceedings, we find In this case there is currently no limited guard- Father’s Emergency Motion to Lift or Vacate ian with the authority granted to Mother in the Stay is moot. Guardianship Plan. We therefore reverse and

956 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 remand for a new hearing to consider appoint- b. certain powers as guardian of the property over the estate or financial resources of the ward, or whose powers as guardian of ment of a limited guardian for Ward pursuant the property extend only to some portion of the estate or finan- to the terms and purpose of the Act. cial resources of the ward. 30 O.S.2011 §1-111. ¶10 REVERSED AND REMANDED. 3. 30 O.S.2011 §1-120 provides (emphasis added): A. A guardian, including a special guardian, of the person is charged with the custody of the ward, and must look to the sup- JOPLIN, C.J., and BELL, J., concur. port, health and education of the ward. Except as provided by Section 3-113 of this title, he may fix the place of abode of the 1. While Ward has appealed the trial court’s denial of her motion ward at any place within the county, but not elsewhere, without to terminate Father as co-guardian, she admits she is a partially inca- permission of the court and any change in the place of abode of pacitated person and has not sought to terminate the limited guardian- a ward within the county shall be reported to the court. ship in toto. Therefore, we have not considered the legal propriety of B. Limited guardians of partially incapacitated persons shall not have the limited guardianship. custody of the person of the ward and shall have only those powers 2. The Act defines “partially incapacitated person” as: or controls over the person of the ward specifically ordered in a an incapacitated person whose impairment is only to the extent dispositional order or other order of the court. that without the assistance of a limited guardian said person is 30 O.S.2011 §3-114 provides (emphasis added): unable to: A. The court may assign to a limited guardian of the person any a. meet the essential requirements for his physical health or portion of the powers and duties of a general guardian of the safety, or person except the power to take custody of the person of the ward. The b. manage all of his financial resources or to engage in all of the court may also assign to the limited guardian the duty to assist activities necessary for the effective management of his financial the ward in those particular areas in which the capacity of the resources. ward is impaired including, but not limited to, the duty to assist A finding that an individual is a partially incapacitated person the ward in: shall not constitute a finding of legal incompetence. A partially 1. meeting the requirements for his health or safety; incapacitated person shall be legally competent in all areas other 2. protecting his rights; than the area or areas specified by the court in its dispositional or 3. obtaining necessary services; subsequent orders. Such person shall retain all legal rights and 4. fulfilling his civic duties; and abilities other than those expressly limited or curtailed in said 5. any other areas as determined necessary by the court and orders; . . . . which are not specifically prohibited by Section 56 of this act. The Act defines “limited guardian” as: * * * a person appointed by the court to serve as the guardian of a 4. While very few state courts appear to have addressed this ques- partially incapacitated person and who is authorized by the tion, the Pennsylvania Superior Court has held that a mentally handi- court to exercise only: capped adult should not be deprived of the freedom to choose with a. some of the powers of a guardian of the person or whose whom she associates. See Schmidt v. Schmidt, 313 Pa.Super. 83, 459 A.2d power as guardian of the person extends only to certain matters 421 (1983). In Schmidt, the court held that an adult with Down’s Syn- pertaining to the care or control of the ward as specified by the drome could not be compelled to visit her father. The court there noted court, or the Appellant had not been adjudicated incompetent, but the Appel- lant’s mental age in Schmidt was similar to Ward’s in this case.

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission has reopened the application process and seeks applicants to fill the following judicial office: Associate District Judge Eighth Judicial District Noble County, Oklahoma This vacancy is created by the retirement of the Honorable Dan Allen effective Decem- ber 31, 2012. To be appointed an Associate District Judge, an individual must be a registered voter of the applicable judicial district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, the appointee must have had a minimum of two years experience as a licensed practicing attorney, or as a judge of a court of record, or combination thereof, within the State of Oklahoma. Application forms can be obtained on line at www.oscn.net by following the link to the Oklahoma Judicial Nominating Commission or by contacting Tammy Reaves, Admin- istrative Office of the Courts, 2100 North Lincoln, Suite 3, Oklahoma City, OK 73105, (405) 556-9300, and should be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, May 31, 2013. If applications are mailed, they must be postmarked by midnight, May 31, 2013. Heather Burrage, Chairman Oklahoma Judicial Nominating Commission

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 957 Disposition of Cases Other Than by Published Opinion

COURT OF CRIMINAL APPEALS F-2011-1098 — Kent G. Savage, Appellant, Wednesday, April 24, 2013 was tried by jury in Case No. CF-2010-750 in the District Court of Oklahoma County for the F-2011-1019 — Timmy Howard Dickey, following crimes: Counts I, II, III, IV, V, VI, VII, Appellant, was tried by jury for the crime of VIII, IX and X - Indecent or Lewd Acts with a Child Sexual Abuse in Case No. CF-2010-279 in Child Under Sixteen, Counts XI and XII - First the District Court of Caddo County. The jury Degree Rape by Instrumentation, Counts XIII returned a verdict of guilty and recommended and XIV - Exhibition of Obscene Materials to a as punishment five years imprisonment. The Minor Child. The jury returned a verdict of trial court sentenced accordingly. From this guilty and recommended as punishment 20 judgment and sentence Timmy Howard Dickey years imprisonment for each of Counts I, II, III, has perfected his appeal. CONVICTION MOD- IV, V and VI, 15 years imprisonment for each of IFIED TO CONVICTION FOR INCEST, SEN- Counts VII, VIII, IX and X, life imprisonment TENCE AFFIRMED. Opinion by: Smith, V.P.J.; for each of Counts XI and XII and three years Lewis, P.J., Dissent; Lumpkin, J., Dissent; C. imprisonment for each of Counts XIII and XIV, Johnson, J., Concur; A. Johnson, J., Concur. all to run consecutively. The trial court sen- F-2012-73 — Vincent Latrell Stewart, Appel- tenced accordingly. From this judgment and lant, was tried by jury for the crime of Child sentence Kent G. Savage has perfected his Abuse by Injury, Counts I and II in Case No. appeal. AFFIRMED. Appellant’s Application CF-2010-4089 in the District Court of Tulsa for Evidentiary Hearing is DENIED. Opinion County. The jury returned a verdict of guilty by: Smith, V.P.J.; Lewis, P.J., Concur; Lumpkin, and recommended as punishment 35 years J., Concur; C. Johnson, J., Concur; A. Johnson, J., Concur. imprisonment on Count I and five years on Count II, to run consecutively. The trial court RE-2011-995 — On a plea of guilty entered in sentenced accordingly. From this judgment the District Court of Garfield County, Case No. and sentence Vincent Latrell Stewart has per- CF-2004-259, David Patrick Yirka, Appellant, fected his appeal. AFFIRMED. Opinion by: was found guilty of Driving under the Influ- Smith, V.P.J.; Lewis, P.J., Concur; Lumpkin, J., ence, a Subsequent Offense, and on January 28, Concur; C. Johnson, J., Concur; A. Johnson, J., 2010, was sentenced to five (5) years imprison- Concur. ment with all of that tem suspended except for fifteen (15) weekends in the county jail. This RE-2011-562 — In the District Court of Wash- suspension order was made subject to written ita County, Case No. CF-2001-38, the Honor- conditions of probation. On October 11, 2011, able Joe Burch, Associate District Judge, on the Honorable Dennis W. Hladik, District July 17, 2001, sentenced Appellant, Jack Joseph Judge, found Appellant violated that probation Taylor, to concurrent terms of ten (10) years and revoked the unexecuted remainder of imprisonment for Count 1, Arson in the Second Appellant’s suspended sentence in full. Appel- Degree, and Count 2, Conspiracy to Commit lant appeals this final order of revocation. Arson in the Second Degree, with all but the AFFIRMED. Opinion by: Smith, V.P.J.; Lewis, first ninety (90) days thereof suspended condi- P.J., Concur; Lumpkin, J., Concur; C. Johnson, tioned on written rules of probation. On June J., Concur; A. Johnson, J., Concur. 13, 2011, the Honorable Christopher S. Kelly, Associate District Judge, revoked the suspen- Thursday, April 25, 2013 sion orders in full. Appellant appeals the final F-2011-1066 — Jon Paul Robert Owens, order of revocation. REVERSED AND RE- Appellant, was tried by jury for the crime of MANDED for further proceedings. Opinion Felonious Possession of a Firearm, After For- by: Smith, V.P.J.; Lewis, P.J., Concur; Lumpkin, mer Conviction of Two or More Felonies in J., Concur in Results; C. Johnson, J., Concur; A. Case No. CF-09-659 in the District Court of Johnson, J., Concur. Canadian County. The jury returned a verdict

958 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 of guilty and recommended as punishment FIRMED. This matter is REMANDED to the eight years imprisonment. The trial court sen- trial court with instructions to enter an order tenced accordingly. From this judgment and nunc pro tunc correcting the Judgment and Sen- sentence Jon Paul Robert Owens has perfected tences to accurately reflect that Appellant’s his appeal. AFFIRMED. Opinion by: Smith, convictions followed a non-jury trial. Opinion V.P.J.; Lewis, P.J., Concur; Lumpkin, J., Concur; by: Lumpkin, J.; Lewis, P.J., concur; Smith, J., C. Johnson, J., Concur; A. Johnson, J., Concur. concur; C. Johnson, J., concur; A. Johnson, J., concur. C-2012-401 — Eddie Jo Dean Spears, Peti- tioner, entered pleas of nolo contendere to two Monday, April 29, 2013 counts of First Degree Rape in Case Nos. F-2011-558 — Tye Nichole Shafer, Appellant, CF-2011-49 & CF-2011-67, in the District Court was tried by jury for the crimes of First Degree of Coal County. After hearing testimony and Murder (Count 4), Child Neglect (Count 5), argument the court sentenced Petitioner to life and two counts of Enabling Child Abuse imprisonment on each charge, and ordered the (Counts 6 and 7) in Case No. CF-2009-5643 in sentences to be served concurrently. Petitioner the District Court of Oklahoma County. The filed a request to withdraw his pleas, which jury returned a verdict of guilty and recom- was denied. This appeal followed. The Petition mended as punishment life imprisonment on for Writ of Certiorari is DENIED and the Judg- Count 4, seven years imprisonment on Count 5, ment and Sentence of the trial court is three years imprisonment on Count 6, and one AFFIRMED. Opinion by: C. Johnson, J.; Lewis, year imprisonment on Count 7. The trial court P.J., Concurs; Smith, V.P.J., Concurs; Lumpkin, sentenced accordingly and ordered the sen- J., Concurs; A. Johnson, J., Concurs. tences in Counts 5, 6, and 7 to run concurrently F-2011-1061 — Paul Troy Roppolo, Appel- with each other but consecutively to the sen- lant, was tried by jury for the crimes of Count tence in Count 4. From this judgment and sen- 1: Kidnapping and Count 2: Assault and Bat- tence Tye Nichole Shafer has perfected her tery with a Dangerous Weapon, both After appeal. The Judgment and Sentence of the Dis- Conviction of Two or More Felonies, in Case trict Court is AFFIRMED. Opinion by: A. John- No. CF-2010-4733, in the District Court of Tulsa son, J.; Lewis, P.J., concurs; Smith, V.P.J., concurs; County. The jury returned a verdict of guilty Lumpkin, J., concurs; C. Johnson, J., concurs. and recommended as punishment four years RE-2011-669 — In the District Court of Okla- imprisonment on Count 1 and twenty years homa County, Case No. CF-2008-1410, Timothy imprisonment on Count 2. The trial court sen- Tyrone Tippett, Appellant, entered a plea of tenced accordingly ordering the sentences to guilty to Driving Under the Influence of Alco- be served consecutively. From this judgment hol, a second or subsequent offense. On July and sentence Paul Troy Roppolo has perfected 23, 2008, pursuant to a plea agreement, the his appeal. AFFIRMED. Opinion by: C. John- Honorable D. Fred Doak, Special Judge, sen- son, J.; Lewis, P.J., Concurs in Results; Smith, tenced Appellant to five (5) years imprison- V.P.J., Concurs; Lumpkin, J., Concurs in Results; ment, all suspended except for the first six (6) A. Johnson, J., Concurs. months conditioned on written rules of proba- Friday, April 26, 2013 tion. On July 12, 2011, the Honorable Ray C. Elliott, District Judge, revoked the suspension F-2012-408 — Appellant, Tara Natel Richard- order in full. Appellant appeals the final order son, was tried in a non-jury trial before the of revocation. AFFIRMED. Opinion by: A. Honorable Lee Card, Associate District Judge, Johnson, J.; Lewis, P.J., concurs; Smith, V.P.J., District Court of Carter County, Case Number concurs; Lumpkin, J., concurs; C. Johnson, J., CF-2011-75, and convicted of Attempted First concurs in results. Degree Robbery (Count I), and Unauthorized Use of Vehicle (Count II). The Court sentenced F-2011-407 — Kevin Maurice Brown, Appel- Appellant to imprisonment for ten (10) years, lant, was tried by jury for five counts of Rob- with all but the first four (4) years suspended bery with a Firearm (Counts 1, 2, 6, 7 and 8), in Count I and imprisonment for four (4) years two counts of Possession of a Firearm, after in Count II. The trial court ordered the sen- former conviction of a felony (Counts 3 and 9), tences to run concurrently. It is from these one count of First Degree Robbery (Count 4), judgment and sentences that Appellant appeals. and one count of Attempting to Elude a Police The Judgment and Sentences are hereby AF- Officer (Count 10) in Case No. CF-2010-1191

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 959 in the District Court of Tulsa County. The jury son, J., concur in result; A. Johnson, J., concur returned a verdict of guilty and recommend- in result. ed as punishment life imprisonment and a Tuesday, April 30, 2013 $10,000.00 fine on Counts 1, 2, 4, 6, 7 and 8, life imprisonment and a $5,000.00 fine on F-2011-696 — Donald Michael Reeser, Appel- Counts 3 and 9, and one year imprisonment lant, was tried by jury for the crime of First and a $2,000.00 fine on Count 10. The trial Degree Murder, in Case No. CF-2009-893, in court sentenced accordingly and ordered the the District Court of Cleveland County. The sentences to be served consecutively. From jury returned a verdict of guilty and recom- this judgment and sentence Kevin Maurice mended as punishment life imprisonment. The Brown has perfected his appeal. The Judgment trial court sentenced accordingly. From this and Sentence of the District Court is AFFIRMED judgment and sentence Donald Michael Reeser on Counts 1, 2, 3, 4, 6, 7, 8, and 10. The Judgment has perfected his appeal. AFFIRMED. Opinion and Sentence on Count 9 is REVERSED. This by: C. Johnson, J.; Lewis, P.J., Concurs in Court’s order of January 18, 2012, granting Results; Smith, V.P.J., Concurs; Lumpkin, J., Brown’s Request to File Pro Se Supplemental Concurs in Results; A. Johnson, J., Concurs. Brief is VACATED as improvidently granted RE-2011-1086 — In the District Court of Tulsa and the request is now DENIED. Opinion by: A. County, Case No. CF-2009-4600, Marcus Lee Johnson, J.; Lewis, P.J., concurs; Smith, V.P.J., Thomas, Appellant, entered a plea of guilty to concurs; Lumpkin, J., concurs in results; C. John- Unlawful Possession of Controlled Drug (Co- son, J., concurs. caine). On November 25, 2009, pursuant to a F-2011-951 — Appellant Roscoe L. Morris plea agreement, the Honorable Clifford Smith, was tried by jury and convicted of Assault and Special Judge, sentenced Appellant to four (4) Battery with a Dangerous Weapon, After For- years imprisonment and a fine of $500.00, but mer Conviction of a Felony (Counts I, II, and he suspended execution of the sentence of III) and Eluding a Police Officer (Count IV) in imprisonment conditioned on written rules of the District Court of Tulsa County, Case No. probation. On November 28, 2011, the Honor- CF-2011-2237. The jury recommended as pun- able Kurt G. Glassco, District Judge, revoked ishment twenty (20) years imprisonment in the suspension order in full. Appellant appeals each of Counts I, II and III, and one year the final order of revocation. AFFIRMED. Opin- imprisonment and a two thousand dollar ion by: A. Johnson, J.; Lewis, P.J., concurs; ($2,000.00) fine in Count IV. The trial court sen- Smith, V.P.J., concurs; Lumpkin, J., concurs; C. tenced accordingly, ordering the sentences to Johnson, J., concurs. run consecutively. It is from this judgment and F-2011-628 — On May 25, 2006, in the District sentence that Appellant appeals. The Judg- Court of Kay County, Case No. CF-2008-558, ments and Sentences are AFFIRMED. The Joseph Cornelius Jackson, Appellant, entered a Motion for Supplementation of Record and Request plea of guilty to Unlawful Possession of Con- to Remand for Evidentiary Hearing is DENIED. trolled Drug (Marijuana) with Intent to Distrib- Opinion by: Lumpkin, J.; Lewis, P.J., concur; ute, After Former Conviction of Two or More Smith, V.P.J., concur in result; C. Johnson, J., Felonies. Pursuant to a plea agreement, the concur in result; A. Johnson, J., concur in Honorable D.W. Boyd, District Judge, deferred result. sentencing pending Appellant’s completion of F-2011-1140 — Appellant, Jeffery Duane the Kay County Drug Court Program. On July Maynard, was tried by jury and convicted of 5, 2011, Judge Boyd terminated Appellant from Manufacturing a Controlled Dangerous Sub- Drug Court and sentenced Appellant to fifteen stance (Methamphetamine), After Former Con- (15) years imprisonment. Appellant appeals viction of Two or More Felonies, in the District the final order of termination. AFFIRMED. Court of Tulsa County, Case Number CF-2010- Opinion by: A. Johnson, J.; Lewis, P.J., concurs; Smith, V.P.J., concurs; Lumpkin, J., concurs in 4103. The jury recommended as punishment part and dissents in part; C. Johnson, J., con- imprisonment for fifty (50) years and a fine in curs. the amount of $100,000.00. The trial court sen- tenced accordingly. It is from this judgment F-2012-0444 — Appellant, Tommy Jay Ste- and sentence that Appellant appeals. AF- vens, pled guilty July 18, 2005, to Unlawful FIRMED. Opinion by: Lumpkin, J.; Lewis, P.J., Possession of Marijuana in Cleveland County concur; Smith, V.P.J., concur in result; C. John- District Court Case No. CF-2005-66. Following

960 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 successful completion of the Delayed Sentenc- Following a bench trial before the Honorable ing Program, Appellant was given a five year Ronald Kincannon, Associate District Judge, deferred sentence on February 6, 2006, with on September 2, 2011, Appellant was found rules and conditions of probation. The State guilty. He was sentenced on November 28, filed a motion to accelerate the Judgment and 2011, to one year with credit for time served Sentence on August 13, 2007. Following an and with all but fifteen days suspended, with acceleration hearing on January 13, 2010, rules and conditions of probation, and a $700.00 Appellant’s deferred sentence was accelerated. fine. Appellant appeals from the Judgment and Appellant was sentenced to three years in the Sentence imposed. Judgment and Sentence Department of Corrections, all suspended, AFFIRMED. Opinion by: C. Johnson, J.; Lewis, except for forty-five days at the Cleveland P.J., Concurs; Smith, V.P.J., Dissents; Lumpkin, County Detention Center, with credit for time J., Concurs; A. Johnson, J., Concurs. served and with supervision for two years. On November 24, 2010, Appellant was charged F-2012-315 — Gary Wayne Bales, Appellant, with Knowingly Concealing Stolen Property in was tried by jury in the District Court of Osage Cleveland County District Court Case No. County, in Case No. CF-2010-241, for the crimes CF-2010-1689. The State filed a motion to of First Degree Manslaughter (Count I), Pos- revoke Appellant’s suspended sentence in Case session of Controlled Substance – Marijuana No.CF-2005-66 on February 11, 2011. In Cleve- (Count II), Unlawful Possession of Drug Para- land County District Court Case No. CF-2011- phernalia (Count III), Consumption by Person 361, Appellant was charged on March 16, 2011, Under Twenty-One in Public Place (Count IV) with Count 1 – Falsely Personate Another to and Transporting Opened Container of Beer Create Liability, Count 2 – Obstructing Officer, (Count V). The jury found Bales guilty on Counts Count 3 – Intersection Violation – Stop or Yield, I, III and IV and acquitted him on Counts II and a misdemeanor, and Count 4 – Driving with V. The jury assessed punishment at eight years License Cancelled, Suspended, Revoked, a mis- imprisonment on Count I; six months and a demeanor. On July 13, 2011, Appellant con- $500.00 fine on Count III and thirty hours of fessed the probation violations alleged in Case community service and a $300.00 fine on Count No. CF-2005-66, and entered pleas of guilty in IV. The trial court sentenced Bales accordingly Cleveland County Case Nos. CF-2010-1689 and ordering the sentences imposed on Counts I CF-2011-361. The misdemeanor counts in and III be served concurrently and that the CF-2011-361 were dismissed. Appellant was sentence imposed on Count IV be served with- admitted to the Cleveland County Drug Court in six months from his release from confine- Program, Drug Court Case No. DC-2011-37. ment. From this judgment and sentence Gary On March 16, 2012, the State filed a motion to Wayne Bales has perfected his appeal. terminate Appellant from Drug Court. Follow- AFFIRMED. Opinion by: C. Johnson, J.; Lewis, ing a hearing on May 7, 2012, the Honorable P.J., Concurs; Smith, V.P.J., Concurs; Lumpkin, Tracy Schumacher, District Judge, terminated J., Concurs; A. Johnson, J., Concurs. Appellant from Drug Court. Appellant was Wednesday, May 1, 2013 sentenced to three years in Case No. CF-2005- 66, five years in Case No. CF 2010-1689, and F-2012-180 — Sean Jason Durham, Appel- five years in Case No. CF-2011-361. The sen- lant, was tried by jury for the crime of Lewd tences were ordered to run concurrently. Appel- Molestation of a Child Under the Age of 16 in lant appeals from the termination from Drug Case No. CF-2010-1050 in the District Court of Court. The termination of Appellant from Drug Tulsa County. The jury returned a verdict of Court in Cleveland County District Court Case guilty and recommended as punishment 20 Nos. CF-2005-66, CF-2010-1689, and CF-2011- years imprisonment and a fine of $10,000. The 361, Drug Court Case No. DC-2011-37, is trial court sentenced accordingly. From this AFFIRMED. Opinion by: Lumpkin, J.; Lewis, judgment and sentence Sean Jason Durham P.J., concur; Smith, V.P.J., concur; C. Johnson, J., has perfected his appeal. AFFIRMED. Opinion concur; A.Johnson, J., concur. by: Smith, V.P.J.; Lewis, P.J., Concur; Lumpkin, J., Concur; C. Johnson, J., Concur; A. Johnson, M-2011-1088 — Appellant, Philip Hiner, was J., Concur. charged in the District Court of Cimarron County, Case No. CM-2010-39, with Driving a F-2011-756 — In the District Court of Dela- Motor Vehicle While Under the Influence of ware County, Case No. CF-2010-325, Steven Alcohol, 47 O.S. § 11-902(A)(2), a misdemeanor. Brad Potter, Appellant, entered a plea of nolo

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 961 contendere to Maiming, After Former Convic- certiorari appeal. Petition for Writ of Certiorari tion of a Felony. On January 25, 2011, the Hon- and Application for an Evidentiary Hearing orable Robert G. Haney, District Judge, deferred DENIED; case REMANDED for correction of Appellant’s sentencing for three (3) years under the Judgment and Sentence through an order written conditions of probation. Thereafter, the nunc pro tunc by the district court to accurately State alleged that Appellant had violated his reflect that the sentencing court ordered that probation by committing new offenses, and Petitioner be given credit for time served. following a hearing on the State’s motion, Opinion by: Smith, V.P.J.; Lewis, P.J., Concur; Judge Haney sustained the motion, accelerated Lumpkin, J., Concur in Result; C. Johnson, J., sentencing, pronounced a judgment of guilt, Concur; A. Johnson, J., Concur. and on June 1, 2011, sentenced Appellant to ten RE-2011-0850 — On January 26, 2004, Appel- (10) years imprisonment with all but the first lant, Jeremiah Dewayne Johnson, entered a seven (7) years of that term suspended. Appel- blind plea of guilty in Washington County Dis- lant appeals the final order of acceleration. trict Court Case No. CF-2003-34, to Count 2 – AFFIRMED. Opinion by: Smith, V.P.J.; Lewis, Lewd Molestation. Count 1 – Rape, First Degree P.J., Concur; Lumpkin, J., Concur; C. Johnson, (Under 14) was dismissed. Appellant was sen- J., Concur; A. Johnson, J., Concur. tenced to ten years, with three years to serve RE-2011-0795 — Appellant, Jesse Hopkins, and the balance suspended, with rules and III, pled guilty on February 23, 2004, in Okla- conditions of probation. Appellant was also homa County District Court Case No. CF-2003- fined $400.00. The State filed a motion to 4037 to two counts of Using a Vehicle to Facili- revoke Appellant’s suspended sentence on July tate the Intentional Discharge of a Firearm 29, 2011. Following a revocation hearing on (Drive by Shooting). He was given a ten year September 9, 2011, the Honorable Curtis L. suspended sentence on each count, with rules DeLapp, District Judge, revoked Appellant’s and conditions of probation. The sentences suspended sentence in full. Appellant appeals were ordered to run concurrently with each the revocation of his suspended sentence. The other and with Oklahoma County Case No. revocation of Appellant’s suspended sentence CF-2003-4588. On June 29, 2011, the State filed is AFFIRMED. Opinion by: Smith, V.P.J.: Lewis, an application to revoke Appellant’s suspend- P.J., Concur; Lumpkin, J., Concur; C. Johnson, ed sentences alleging Appellant committed a J., Concur; A. Johnson, J., Concur. new violation of the law: “in Del City, State of RE-2011-0914 — Appellant, Joel Allen Blevins, Oklahoma, police incident number 2011004923, pled guilty on December 16, 2003, in Ottawa Count 1: Assault and Battery with a Deadly County District Court Case No. CF-2003-386 to Weapon, Count 2: Assault and Battery with a Count 1 – Manufacture of CDS within 2000 Feet Deadly Weapon, Count 3: Assault and Battery of School, a felony, Count 2 – Possession of CDS with a Deadly Weapon, Count 4: Possession of within 2000 Feet of School, a felony, and Count 3 a Firearm, AFCF.” Following a revocation hear- – Unlawful Possession of Drug Paraphernalia, a ing on August 18, 2011, the Honorable Ray C. misdemeanor. The Honorable William Culver, Elliott, District Judge, revoked Appellant’s sus- Special Judge, sentenced Appellant to twenty pended sentences in full. Appellant appeals. years with all but the first ten years suspended The revocation of Appellant’s suspended sen- on Counts 1 and 2, with rules and conditions of tences is AFFIRMED. Opinion by: Smith, V.P.J.: probation. The counts were ordered to run con- Lewis, P.J., Concur; Lumpkin, J., Concur; C. currently. Appellant was fined a total of Johnson, J, Concur; A. Johnson, J., Concur. $100,100.00: $49,000.00 of $50,000.00 was sus- C-2012-432 — Terry Lee Ledbetter, Petitioner, pended on Counts 1 and 2 and he was fined entered an Alford plea to an amended charge of $100.00 on Count 3. In Ottawa County District First-Degree Manslaughter in Case No. CF- Court Case No. CF-2003-540, Appellant pled 2009-515 in the District Court of Garfield Coun- no contest on April 7, 2004, to Child Sexual ty. He was sentenced to 45 years imprisonment Abuse. Judge Culver sentenced Appellant to with all but the first 30 years suspended. Led- fifteen years, suspended except for five years, better timely filed a motion to withdraw his with rules and conditions of probation, and a plea, and at the conclusion of a hearing held $1,000.00 fine. On August 3, 2011, the State filed May 15, 2012, Ledbetter’s motion to withdraw a motion to revoke Appellant’s suspended sen- plea was denied. From this judgment and sen- tence in each of the above cases. Following a tence Terry Lee Ledbetter has perfected his revocation hearing on October 5, 2011, Judge

962 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 Culver revoked Appellant’s suspended sentenc- omie County, Case No. CF-2012-47. The Hon- es in full. Appellant appeals from the revocation orable John G. Canavan, Jr., District Judge, of his suspended sentences. The revocation of accepted the plea and found Petitioner guilty, Appellant’s suspended sentences is AFFIRMED. and sentenced Petitioner to three (3) years Opinion by: C. Johnson, J.; Lewis, P.J., Concurs; imprisonment, with all but six (6) months sus- Smith, V.P.J., Concurs; Lumpkin, J., Concur; A. pended, and a $250 fine. Petitioner timely Johnson, J., Concurs. moved to withdraw his plea by filing a formal F-2012-0367 — On July 29, 2009, Appellant, motion to withdraw. Following an evidentiary Timothy Lee Gray, pled guilty in Pottawatomie hearing, the district court denied the motion to County District Court, Case No. CF-2009-64, to withdraw. Petitioner has perfected his appeal. Possession of a Stolen Vehicle. He was sen- The Petition for the Writ of Certiorari is tenced to seven years in the Department of DENIED. The Judgment and Sentence of the Corrections but sentencing was delayed pend- District Court of Pottawatomie County is ing successful completion of Drug Court. In AFFIRMED. Opinion by: Lewis, P.J.; Smith, Pottawatomie County District Court, Case No. V.P.J., Concurs; Lumpkin, J., Concurs; C. John- CM-2011-291, Appellant pled guilty to Obtain- son, J., Concurs; A. Johnson, J., Concurs. ing Cash or Merchandise by Bogus Check/ F-2012-274 — Roger Paul McMullen, Appel- False Pretenses. He was sentenced to a one lant, appeals from an order, entered by the year deferred sentence with rules and condi- Honorable B. Gordon Allen, Associate District tions of probation. The State filed an applica- Judge, terminating Appellant from the Drug tion to accelerate Appellant’s deferred sentence Court program and imposing the ten year sen- in Case No. CM-2011-291 on November 15, tence in Case No. CF-2010-52 in the District 2011. In Case No. CF-2009-64, the State filed an Court of Hughes County. On July 20, 2010, application to terminate Appellant from par- Appellant entered an Alford plea to Burglary in ticipation in the Pottawatomie County Drug the Second Degree, After Former Conviction of Court Program and to accelerate Appellant’s Two or More Felonies, and sentencing was sentencing on December 13, 2011. Following a delayed until completion of or termination combined hearing for Case Nos. CF-2009-64 from Drug Court. On February 9, 2012, the and CM-2011-291, on April 10, 2012, the Hon- State filed an application to terminate or revoke orable Dawson Engle, Special Judge, granted Appellant from Drug Court. On March 6, 2012, the State’s motion to terminate Appellant from Judge Allen heard evidence and terminated the Pottawatomie County Drug Program in Appellant from Drug Court, imposing the ten Case No. CF-2009-64 and granted the State’s year sentence. The order of the District Court motion to accelerate Appellant’s deferred sen- of Hughes County terminating Appellant from tence in CM-2011-291. Appellant was sentenced Drug Court and imposing the ten year sen- to seven years in the Department of Correc- tence in Case No. CF-2010-52 is AFFIRMED. tions in Case No. CF-2009-64 and to one year in Opinion by: Lewis, P.J.; Smith, J., V.P.J., Con- the County Jail in Case No. CM-2011-291. The curs; Lumpkin, J., Concurs; C. Johnson, J., Con- sentences were ordered to run concurrently. curs; A. Johnson, J., Concurs. Appellant appeals from the termination from Drug Court in Case No. CF-2009-64 and from RE-2011-1105 — Derry Lynn Whitecrow, the acceleration of his deferred sentence in Appellant, appeals from the revocation of Case No. CM-2011-291. Appellant’s termina- twelve years of his suspended sentence in Case tion from Drug Court in Case No. CF-2009-64 No. CF-2000-355 in the District Court of Texas and the acceleration of his deferred sentence in County, by the Honorable Ryan D. Reddick, CM-2011-291 are AFFIRMED. Opinion by: C. Associate District Judge. On March 29, 2001, Johnson, J. Lewis, P.J.: Concurs; Smith, V.P.J.: Appellant entered a plea of guilty to Count 13: Concurs; Lumpkin, J.: Concurs; A. Johnson, J.: Lewd Act - Molestation, and was sentenced to Concurs. a term of twenty years, with the sentence sus- pended upon successful completion of the Sex Thursday, May 2, 2013 Offender Treatment Program and pursuant to C-2012-827 — Petitioner, William Clyde rules and conditions of probation. On August Cossey, entered a plea of guilty to failure to 11, 2009, the State filed an application to revoke register as a sex offender, after former convic- Appellant’s suspended sentence alleging mul- tion of a felony, in violation of 57 O.S.2011, § tiple violations of probation. On September 16, 581 et seq.; in the District Court of Pottawat- 2010, the State filed an amended application to

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 963 revoke Appellant’s suspended sentence alleg- Sentence of the District Court is AFFIRMED. ing an additional violation of probation. The Opinion by: A. Johnson, J.; Lewis, P.J., concurs; hearing on the application to revoke was held Smith, V.P.J., concurs; Lumpkin, J., concurs in before Judge Reddick on November 30, 2011. results; C. Johnson, J., concurs. Judge Reddick revoked twelve years of Appel- F-2012-207 — Scott E. Thacker, Appellant, lant’s suspended sentence. AFFIRMED. Opin- was tried by jury and found guilty of assault ion by: Lewis, P.J.; Smith, V.P.J., Concurs in and battery with a deadly weapon, in violation Results; Lumpkin, J., Concurs ; C. Johnson, J., of 21 O.S.Supp.2007, § 652; in the District Court Concurs; A. Johnson, Concurs. of Sequoyah County, Case No. CF-2011-374. F-2012-111 — Jeremy Franklin Archer, Appel- The jury sentenced Appellant to fifteen (15) lant, appeals from an order, entered by the years imprisonment. The Honorable Dennis M. Honorable Richard E. Branam, District Judge, Sprouse, Associate District Judge, pronounced terminating Appellant from the Drug Court judgment and sentence accordingly. From this program and imposing the ten year sentences judgment and sentence, Scott E. Thacker has in Case Nos. CF-2008-43 and CF-2010-4 in the perfected his appeal. AFFIRMED. Opinion by: District Court of Coal County. In both cases, Lewis, P.J.; Smith, V.P.J., Concurs; Lumpkin, J., Appellant entered a plea of guilty to Posses- Concurs; C. Johnson, J., Concurs; A. Johnson, J., sion of Controlled Substance (Methamphet- Concurs. amine). Sentencing was delayed until comple- F-2012-98 — Donald Vernon Gregg, Appel- tion of or termination from Drug Court. On lant, was convicted of one count of assault and December 8, 2011, the State filed an application battery with a dangerous weapon in violation to terminate Appellant from the Drug Court of 21 O.S.Supp.2006, § 645, after former convic- program, which listed several current viola- tion of two or more felonies, in the District tions and several past violations and sanctions. Court of Pottawatomie County, case number On January 26, 2012, Appellant stipulated to CF-2011-219, before the Honorable John Gard- the application to terminate. Judge Branam ner, Associate District Judge. Appellant waived terminated Appellant from Drug Court and his right to a jury trial and stipulated to the imposed the ten year sentences. The order of facts of the charge against him as presented in the District Court of Coal County terminating the police report. Judge Gardner sentenced Appellant from Drug Court and imposing the Appellant to serve twenty (20) years imprison- ten year sentences in Case Nos. CF-2008-43 and ment. The trial court sentenced accordingly. CF-2010-4 is AFFIRMED. Opinion by: Lewis, Appellant perfected his appeal before this P.J.; Smith, J., V.P.J., Concurs; Lumpkin, J., Con- Court. AFFIRMED. Opinion by: Lewis, P.J.; curs; C. Johnson, J., Concurs; A. Johnson, J., Smith, V.P.J., Concurs; Lumpkin, J., Concurs; C. Concurs. Johnson, J., Concurs; A. Johnson, J., Concurs. F-2011-440 — Orlando James Evitt, Appel- F-2012-368 — Cody Keith Sartin, Appellant, lant, was tried by jury for the crimes of First was tried by jury and found guilty of first Degree Burglary (Count 1) and Possession of a degree (child abuse) murder, in violation of 21 Firearm, After Former Conviction (Count 2) in O.S.Supp.2009, § 701.7(C); in the District Court CF-2010-191, and Reckless Conduct with a of Tulsa County, Case No. CF-2010-2330. The Firearm in CM-2010-349 in the District Court of jury sentenced Appellant to life imprisonment. Washington County. The jury returned a ver- The Honorable William C. Kellough, District dict of guilty and recommended as punish- Judge, pronounced judgment and sentence ment seven years imprisonment on Count 1 accordingly. From this judgment and and sen- and four years imprisonment on Count 2 in tence, Cody Keith Sartin has perfected his Case No. CF-2010-191, and in Case No. appeal. AFFIRMED. Opinion by: Lewis, P.J.; CM-2010-349 six months in jail and a $500.00 Smith, V.P.J., Concurs; Lumpkin, J., Concurs; C. fine. The trial court sentenced accordingly and Johnson, J., Concurs; A. Johnson, J., Concurs. ordered the sentences in Counts 1 and 2 of the Friday, May 3, 2013 felony case to run consecutively to one another and the jail time in the misdemeanor case to M-2011-909 — On June 18, 2010, Appellant run consecutively to the sentences in Counts 1 Edwin Hardee Turlington was charged with and 2, with credit for time served. From this the misdemeanor offense of Threatening to judgment and sentence Orlando James Evitt Perform an Act of Violence in Texas County has perfected his appeal. The Judgment and Case No. CM-2010-184. On April 7, 2011, after

964 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 a jury trial, Turlington was found guilty of the results; C. Johnson, J., concurs; A. Johnson, J., charged offense. The District Court of Texas concurs. County, the Honorable Ryan Reddick, Associ- F-2012-168 — Tommie Joe Moore, Appellant, ate District Judge imposed a fine of $1000.00 in was convicted after jury trial in the District accordance with the jury’s recommendation. Court of Stephens County, of Distribution of From this Judgment and Sentence, Turlington Controlled Dangerous Substance (Count I) and appeals. Appellant’s misdemeanor Judgment Possession of Controlled Dangerous Substance and Sentence is AFFIRMED. Opinion by: (Count II), in Case No. CF-2011-46 and Traffick- Lumpkin, J.; Lewis, P.J., concur; Smith, V.P.J., ing in Illegal Drugs, in Case No. CF-2011-59. concur; C. Johnson, J., concur; A. Johnson, J., Moore waived jury trial on the second stage concur. and jury sentencing in both cases. The trial F-2012-101 — Christopher Wayne Webb, court found Moore guilty after one prior felony Appellant, was tried by jury for the crime of conviction on each count in Case No. CF-2011- Rape by Instrumentation, After Former Con- 46 and in Case No. CF-2011-59. The court sen- viction of Two Prior Felonies, in Case No. tenced Moore to twenty years imprisonment CF-2009-387, in the District Court of Bryan and a $25,000.00 fine on the distribution con- viction, ten years imprisonment and a $7,500.00 County. The jury returned a verdict of guilty fine on the possession conviction and twenty- and recommended as punishment thirty years five years imprisonment and a $25,000.00 fine imprisonment. The trial court sentenced accord- on the trafficking conviction. The court ordered ingly. From this judgment and sentence Chris- the convictions in Case No. CF-2011-46 to be topher Wayne Webb has perfected his appeal. served concurrently with each other and con- AFFIRMED. Opinion by: C. Johnson, J.; Lewis, secutively to the conviction in Case No. P.J., Concurs; Smith, V.P.J., Concurs; Lumpkin, CF-2011-59. From this judgment and sentence J., Concurs; A. Johnson, J., Concurs. Tommie Joe Moore has perfected his appeal. S-2012-552 — Appellee, Linda Parenti, was The Judgment and Sentence of the district charged in Okmulgee County District Court, court is AFFIRMED except that Appellant’s Case No. CF-2011-408, with Accessory After fine on Count I of Case No. CF-2011-46 is the Fact. A Preliminary Hearing was held and MODIFIED to $10,000.00. Opinion by: C. John- Parenti was bound over for trial. Parenti filed son, J.; Lewis, P.J., Concurs; Smith, V.P.J., Con- a motion to quash and dismiss and at the con- curs; Lumpkin, J., Concurs; A. Johnson, J., clusion of this hearing the district judge sus- Concurs. tained the motion to quash and dismissed the COURT OF CIVIL APPEALS case. The State now appeals from this deci- (Division No. 1) sion. The District Court’s ruling granting the Friday, April 26, 2013 Motion to Quash is AFFIRMED. Opinion by: 110,080 — David W. Miller, Plaintiff/Appel- C. Johnson, J.; Lewis, P.J., concurs; Smith, lee, vs. Frankie A. Duckworth, Defendant/ V.P.J., concurs; Lumpkin, J., concurs in results; Appellant. Appeal from the District Court of A. Johnson, J., concurs. Pittsburg County, Oklahoma. Honorable James Monday, May 6, 2013 Bland, Judge. Defendant/Appellant Frankie A. Duckworth appeals the judgment entered F-2012-437 — Mark J. Lawler, Appellant, was against her following a bench trial in Miller’s tried by jury and found guilty of rape in the suit for breach of contract and conversion. first degree, in violation of 21 O.S.Supp.2008, § Competent evidence supports the finding that 1114(A)(5); in the District Court of Hughes Duckworth breached the parties’ lease and County, Case No. CF-2010-85. The jury sen- sales contract and converted Miller’s cattle by tenced Appellant to thirty-five (35) years ratifying conduct of her grandson. We AFFIRM imprisonment. The Honorable Timothy L. the judgment. Opinion by Buettner, P.J.; Joplin, Olsen, Associate District Judge, pronounced C.J., and Bell, J., concur. judgment and sentence accordingly. Mark J. Lawler has perfected his appeal. The Judgment Tuesday, May 7, 2013 and Sentence of the District Court of Hughes 109,456 — Opitz Inc., d/b/a 5 Star Storage, County is hereby REVERSED AND REMAND- an Oklahoma Corporation, Plaintiff/Appellee, ED for a new trial. Opinion by: Lewis, P.J.; vs. Le Mars Insurance Company, a Foreign Smith, V.P.J., concurs; Lumpkin, J., concurs in Corporation, Defendant/Appellant. Appeal

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 965 from the District Court of Canadian County, er failed to protect the children from heinous Oklahoma. Honorable Gary E. Miller, Judge. In and shocking sexual abuse by their biological this action for breach of an insurance contract father. The trial court found termination of and tortious bad faith in handling a claim, Mother’s parental rights was in the children’s Appellant (Insurance Company) appeals from best interests. The overwhelming, clear and con- the trial court’s judgment entered upon a jury’s vincing evidence demonstrates Mother knew award of $225,000.00 in punitive damages to about Father’s deviant sexual propensities, and Appellee (5 Star). Insurance Company does not she knew he was capable of sexual abuse and appeal from the actual damage award. Under had been convicted of that very crime. Mother the applicable standard of review and based on chose to ignore the overt warning signs and the record, we find the jury’s punitive damage expose her children to a real threat of harm. Her award was supported by sufficient evidence actions and behavior meet the very definition of demonstrating Insurance Company unreason- a failure to protect. Mother showed a complete ably and in bad faith underpaid the instant lack of interest in protecting her children from claim. Even though there was conflicting evi- abuse that was heinous and shocking. The trial dence with regard to the reasonableness of court’s order terminating Mother’s parental Insurance Company’s conduct, that issue was a rights is AFFIRMED. Opinion by Bell, J.; Buett- question to be determined by the trier of fact ner, P.J., and Joplin, C.J., concur. after consideration of the circumstances of the (Division No. 2) case. We recognize a defendant’s wealth is a con- Thursday, April 25, 2013 sideration when a jury is deciding the amount of punitive damages. However, we reject Insurance 106,979 — Jeffrey P. and Kathy L. Nees, Mark Company’s argument that the record must con- A. Camp, Trustee of the Mark A. Camp 2005 tain evidence of a defendant’s net worth before Trust, Camille L. Camp, Trustee of the Camille the jury’s punitive damage award may be af- L. Camp 2005 Trust, Samuel Edward, II, Jenny firmed. The purpose of determining the defen- C. Dakil, Charles W. and Connie J. Hollen, G. dant’s net worth is to ascertain whether the Mike Jolley and Jennie L. Jolley, Trustee of the amount of the punitive damages award is suffi- Jennie L. Jolley Family Trust, P. Mark and P. cient to restrain and serve as a warning to the Megan Moore, Jamshid and Cheryl F. Motiei, wrongdoer. We also review the size of the puni- Stanton M. and Kerry S. Nelson, Michael D. tive damages award in relation to the defen- and Gail M. Sellers, Robert A. and Carol L. dant’s financial condition to safeguard against Stoops, William D. and Angela L. Wright, Indi- an excessive verdict. The punitive damage award vidually and on behalf of others similarly situ- was sufficiently large enough to punish Insur- ated, Plaintiffs/Appellees, vs. Ashton Grove, ance Company, but was not so disproportion- L.C., W. Dow Hamm III Corporation, Ashton ately large compared to the amount already Grove Master Association, Inc., Ashton Grove paid by Insurance Company to its insured or Estates Section 1 Community Association, Inc., the amount guaranteed under the $1,793,300.00 William Dow Hamm, III, William Dow Hamm, policy limits. We hold the amount of punitive Jr., and Jonathan H. Brinsden, Defendants/ damages was reasonably related to the breach Appellants, and City of Norman, Appellee. of contract claim and Insurance Company’s Appeal from orders of the District Court of financial condition. AFFIRMED. Opinion by Cleveland County, Hon. Tom A. Lucas, Trial Bell, J.; Joplin, C.J., concurs, and Buettner, J., Judge, granting partial summary judgment in dissents. favor of Plaintiffs, granting summary judgment in favor of the City, and awarding specific per- 110,502 — In the Matter of N.L.R. and L.D.R., formance to Plaintiffs after a bench trial. This Alleged Deprived Children: Theresa Reynolds, case involves a residential planned unit devel- Appellant, vs. State of Oklahoma, Appellee. opment located in the City of Norman. Plaintiffs Appeal from the District Court of Garvin brought suit against Defendants for numerous County, Oklahoma. Honorable Trisha A. Misak, claims and Defendants filed several counter- Judge. Appellant (Mother) seeks review of the claims and cross-claims. Numerous summary trial court’s order entered upon a jury verdict judgment motions were filed and decided by the terminating her parental rights to her minor trial court and the remaining issues were tried to children. The court terminated Mother’s paren- the court. In summary, because material issues tal rights pursuant to 10A O.S. Supp. 2009 §1-4- of fact remain precluding summary judgment on 904(b)(9) on the ground Appellee (State) proved with clear and convincing evidence that Moth-

966 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 these related questions, we conclude it was error on the evidence in the record, however, we for the trial court: reverse the trial court’s determination that the 1. To grant summary adjudication to perimeter fence on the south and west must be Plaintiffs on the issues of whether the constructed of “true wrought iron.” The decree First Amendment is valid and whether of specific performance in this regard is affirmed the increase in assessments was valid but modified to require reconstruction of this under either the Declaration or the First fence using materials and of a quality in line Amendment; with the heavy gauge steel described by Plain- tiffs’ witness in his estimate. We conclude it 2. To grant summary adjudication on the was error to extend a fiduciary duty to Devel- questions of shortfalls in funding com- oper or to Hamm Jr., and Hamm III individu- mon area maintenance and whether ally, and the trial court’s decision in this regard Developer is required to pay unfunded is reversed. Finally, because it was error to dis- common expenses; regard the corporate entity of Developer and 3. To grant summary judgment to Plaintiffs hold Hamm Jr., Hamm III, and Hamm Corpo- on Defendants’ affirmative defenses which ration liable to Plaintiffs, we also reverse this must be addressed on remand in conjunc- decision. Based on these determinations, the tion with the issues of whether the First trial court’s decisions are affirmed in part and Amendment is valid and whether Defen- reversed in part and remanded for further pro- dants properly determined the amount of ceedings in accordance with this Opinion. assessments to be paid by Plaintiffs; AFFIRMED IN PART, REVERSED IN PART, 4. To deny Defendants a jury trial on Plain- AND REMANDED FOR FURTHER PRO- tiffs’ claims for damages for breach of con- CEEDINGS. Opinion from the Court of Civil tract relating to the First Amendment and Appeals, Division II, by Wiseman, J.; Barnes, the assessments made by Defendants. V.C.J., and Goodman, J., (sitting by designa- tion) concur. As to Defendants’ counterclaims, we con- clude the record and applicable law do not 110,985 — In the Matter of K.B. and K.B., support Defendants’ assertion of trial court Deprived Children. Brandon Hollingshad, Ap- error in granting summary adjudication on pellant, v. State of Oklahoma, Appellee. Appeal Defendants’ counterclaims, and we affirm these from an Order of the District Court of Garfield decisions. We also affirm the decision of the County, Oklahoma, Hon. Tom L. Newby, Trial trial court finding that an implied dedication of Judge. Appellant (Father) appeals from a trial the Lift Station has been proven by City. How- court Order terminating his parental rights to ever, the trial court’s conclusion that City K.B. and K.B. (Children) following a non-jury obtained a fee interest in the property must be trial. Children’s mother, whose rights also were reversed with directions to hold that City’s terminated in the proceeding, does not appeal. interest as a result of this dedication is an ease- Father’s claim that he was denied due process ment. On the equitable issues under review, of law is not supported by the law or by the although summary judgment was not appro- evidence. His argument that there was insuffi- priate on the issue of fencing on the north and cient evidence for the trial court to find termi- east boundaries of Ashton Grove, this issue nation was in Children’s best interests also is was later addressed on the merits and appro- unfounded. We conclude clear and convincing priately resolved at trial. Finding no reversible evidence supports the trial court’s decision to error, we affirm the trial court’s decision on terminate Father’s parental rights to Children, this claim. We also find no trial court error in and we conclude the decision is in accord with determining that the perimeter fencing and the law. Accordingly, the Order is affirmed. gates with turnaround as constructed for Ash- The Order, however, does not contain the ton Grove did not comply with contractual needed findings regarding Father’s continuing requirements. We will not disturb the trial duty to support Children, nor does it incorpo- court’s conclusion that Developer breached its rate the specific findings made by the trial promises to provide security and limited access court at the end of the termination proceed- by means of a perimeter fence and entry gates ings. Accordingly, we remand the case with with sufficient turnaround. The trial court’s instructions to the trial court to take such decision to grant equitable relief by specific actions as are necessary to correct these defi- performance was not an abuse of discretion or ciencies in its Order. The trial court’s Order is against the clear weight of the evidence. Based in all other respects affirmed. AFFIRMED AND

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 967 REMANDED. Opinion from Court of Civil ing the record and considering well-established Appeals, Division II, by Barnes, V.C.J.; Fischer, precedent governing the issues presented, we P.J., and Wiseman, J., concur. conclude the trial court decisions under review were not contrary to the weight of the evidence Friday, April 26, 2013 nor do they show an abuse of discretion. AF- 110,021 — S.L. Shipman, Petitioner/Appel- FIRMED. Opinion from the Court of Civil lee, vs. G.D. Shipman, Respondent/ Appellant. Appeals, Division II, by Wiseman, J.; Barnes, Appeal from an order of the District Court of V.C.J., and Fischer, P.J., concur. Tulsa County, Hon. Martha Rupp Carter, Trial Monday, May 6, 2013 Judge, denying Father’s motion to remove a parenting coordinator. As part of her recom- 110,232 — Annette C. Watson, Plaintiff/ mendations, the parenting coordinator stated Appellee, vs. William Wilson, Jr., in his official that she advised Mother that Mother needed to capacity and in his individual, personal capac- move forward on a contempt action for the ity, Defendant, and Oklahoma Department of alleged violations of a joint custody plan. Human Services, Defendant/Appellant. Father filed a motion to remove the parenting Appeal from Order of the District Court of coordinator, which the trial court denied. We Atoka County, Hon. Mark R. Campbell, Trial conclude the language used by the parenting Judge. DHS appeals from orders of the district coordinator constitutes advice to take legal court granting Plaintiff Annette Watson’s action. Use of the language regarding the con- request for discovery-related sanctions and an tempt action increased the parties’ misunder- award of attorney fees. This appeal arises from standings rather than reducing them as the a discovery dispute and several hearings Parenting Coordinator Act intends. Giving regarding Watson’s requests for the production such advice to Mother in a recommendation to of documents from DHS. The district court’s the court appears to be “advocating for one order which imposed a $500 discovery sanc- party,” which undermines the “neutrality and tion against DHS and awarded Watson $324.04 impartiality necessary to mediate disputes in costs, does not constitute an abuse of discre- between the parties.” See Dilbeck v. Dilbeck, tion. It is therefore affirmed. Further, we find 2010 OK CIV APP 142, ¶ 22, 245 P.3d 630, 636. no abuse of discretion in the district court’s Because the parenting coordinator’s “neutrali- determination that Watson was entitled to ty and impartiality” have been compromised, recover attorney fees against DHS. However, it was error to find Father has failed to show the record does not contain the necessary find- good cause to remove her. We direct the trial ings to support the district court’s subsequent court to remove the parenting coordinator. order awarding Watson attorney fees in the REVERSED AND REMANDED FOR FUR- amount of $11,660. We reverse that order and THER PROCEEDINGS. Opinion from the remand the case for the district court to enter Court of Civil Appeals, Division II, by Wise- an attorney fee award consistent with the pro- man, J.; Barnes, V.C.J., and Fischer, P.J., concur. nouncements of Burk. See State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, ¶ 22, 598 Thursday, May 2, 2013 P.2d 659, 663. AFFIRMED IN PART, REVERSED 110,232 — In re the Marriage of: Rhonda IN PART AND REMANDED FOR FUTHER Downing, Petitioner/Appellant, vs. Troy O. PROCEEDINGS AS DIRECTED. Opinion from Downing, Respondent/Appellee. Appeal from Court of Civil Appeals, Division II by Fischer, an order of the District Court of Oklahoma P.J.; Barnes, V.C.J., and Wiseman, J., concur. County, Hon. Cindy H. Truong, Trial Judge, (Division No. 3) entering a decree of dissolution of marriage Friday, April 26, 2013 granting custody of the parties’ minor child to Father, awarding Mother visitation, ordering 109,319 — Christopher E. Fulton, Plaintiff/ Mother to pay child support, and dividing the Appellee, vs. The Board of Adjustment of the marital estate. The issues on appeal are wheth- City of Muskogee, Oklahoma, Defendant/ er the trial court abused its discretion or ren- Appellant. Appeal from the District Court of dered decisions contrary to the weight of the Muskogee County, Oklahoma. Honorable Jef- evidence on the issues of custody, visitation, frey Payton, Trial Judge. Appellant (Board) child support, and attorney fees and whether appeals a decision of the district court finding failing to rule on Mother’s pending application Appellee (Fulton) entitled to a “judicial vari- for indirect contempt was error. After review- ance” allowing him to operate a towing service

968 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 on his property, after the Board determined the LeFlore County, Oklahoma. Honorable Jona- business was not a permissible use in Fulton’s than K. Sullivan, Judge. Appellants, as trustees zoning district. When Fulton began moving his for various trusts, appeal from the trial court’s towing business (Bargain Wrecker) onto the dismissal of their negligence and reformation property he purchased, the City received a action against Appellees. The trial court ruled complaint from the owner of a neighboring lot Appellants’ petition is barred by the statute of and investigated the matter. The Director of the limitations. The limitations period began to Planning Department of the City of Muskogee run on Appellants’ claims when they should made an administrative determination that the have discovered the mistake in the deeds. They E-1 district was not the proper zoning classifi- had constructive notice of the omitted mineral cation for a towing service, but rather, the F-1 reservations when the warranty deeds were General Commercial or a higher classification filed of record in March and August of 1995. was appropriate. Fulton appealed this determi- Appellants’ claims for negligence expired in nation to the Board, which affirmed the deci- March and August of 1997, and their claim for sion. The district court affirmed the Board’s reformation expired in March and August of finding that the E-1 district was not the appro- 2000. Thus, Plaintiffs’ instant petition, filed priate zoning for Fulton’s business, but never- more than ten years later on December 10, theless granted Fulton a “judicial variance” to 2010, was time-barred. The trial court correctly continue to operate. Board contends it (and the dismissed Appellants’ claims as untimely. The district court as well) lacks authority to grant trial court did not abuse its discretion by deny- Fulton a variance, and the relief granted by the ing Appellants’ motion for new trial. AF- district court was not available to Fulton at law. FIRMED. Opinion by Goree, J.; Hetherington, Fulton made no request for a variance, and the P.J., and Mitchell, J., concur. arguments presented on appeal were not pre- Friday, May 3, 2013 sented to the Board or the district court at the time of trial. We are unable to decide these 111,084 — In the Matter of the Estate of first-instance issues on appeal. Although we Wayne Luellen, Deceased: Gary Leon Luellen, vacate the portion of the district court’s order Appellant, vs. Callie Lynn Luellen McDaniel, granting a variance, this does not preclude Ful- Appellee, and Sherri Lee Barrett, Personal Rep- ton from seeking any relief available at law resentative. Appeal from the District Court of from the appropriate authority. The order of Tulsa County, Oklahoma. Honorable Jesse S. the district court is affirmed insofar as it Harris, Trial Judge. Gary Luellen appeals the affirmed the Board’s finding that the E-1 zon- probate court’s order determining his sister, ing district is not an appropriate classification Callie Luellen McDaniel, was entitled to share for a towing service. We vacate the portion of in their father’s estate. We reverse because the the order granting Fulton a variance to operate decision is contrary to the weight of the evi- his business, finding no basis in the law or the dence. The intent to disinherit is clear when an record in this case to support that portion of heir is specifically named in a will but its provi- the order. AFFIRMED IN PART, VACATED IN sions leave her nothing. Matter of Estate of PART. Opinion by Mitchell, J.; Hetherington, Hester, 1983 OK 93, ¶10, 671 P.2d 54, 55; Pease v. P.J., and Goree, J., concur. Whitlatch, 1964 OK 264, 397 P.2d 894; In re Adams’ Estate v. Adams, 1950 OK 201, ¶9, 222 110,102 — Roscoe Pardue, Trustee of the P.2d 366, 369. REVERSED. Opinion by Goree, Suzzina Hoffman Trust, the Denae Hoffman J.; Hetherington, P.J., and Mitchell, J., concur. Trust, and the Nancy Sue Hoffman Trust and Ed Wesley Badgett, Trustee of the Roscoe Par- (Division No. 4) due, Ruby Badgett and Hazel Reeves Trust, Wednesday, April 24, 2013 Plaintiffs/Appellants, vs. Clyde Bradshaw and 111,072 — Michelin North America, Inc., Marjorie Bradshaw, Donna Brown, Dennis P. Petitioner, v. Own Risk, Insurance Carrier, Waren and Drucilla Waren, Rick Meeks and Larry W. Moody and The Workers’ Compensa- Kristy Meeks, Bob Johnson d/b/a Country- tion Court, Respondents. Proceeding to Review wide Real Estate, J2 Investments, LLC, and an Order of a Three-Judge Panel of The Work- Somerset Development, Inc., Defendants, and ers’ Compensation Court, Hon. Bob Lake Larry D. Brown and Phyllis Brown, Larry G. Grove, Trial Judge, finding that the Claimant, Brown, Jerry Angel and Gloria Angel, and Larry W. Moody, sustained a cumulative trau- Adams Abstract Company, Inc., Defendants/ ma injury to his hands and ordering Employer Appellees. Appeal from the District Court of to provide reasonable and necessary medical

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 969 treatment. This Court finds the three-judge judgment in favor of Pryority Bank. The Okla- panel correctly determined that Claimant’s homa Supreme Court assigned the appeal in claim for a cumulative trauma injury to his First Pryority Bank v Deborah Fisher Dunn, a/k/a hands was not barred by the doctrine of claim Deborah Fisher Irwin (Dunn) and New Tulsa Prop- preclusion or res judicata. This Court also finds erties, L.L.C., Appeal Number 111,329, as a com- there is competent evidence to support the panion appeal. The Standard of Review and decision that Claimant rebutted the Section Analysis in the companion appeal apply in this 24.2 presumption and that he sustained a appeal. The trial court erred in entering a final cumulative trauma injury to his hands. Based judgment on the basis of the summary judg- on the foregoing, this Court sustains the Order ment. Dunn and New Tulsa did raise an affir- on Appeal Vacating the Decision of the Trial mative defense and a claim of bad faith. One Court entered by a three-judge panel. SUS- result is to place in controversy the element of TAINED. Opinion from Court of Civil Appeals, the Note being due. Questions of fact exist Division IV, by Rapp J.; Thornbrugh, P.J., and under the summary judgment record regard- Goodman, J., concur. ing their defense and claim. Therefore, the trial court erred in granting a final judgment in this 109,544 — Laquita Hopkins, Plaintiff/Appel- action. The cause is reversed and remanded for lant, vs. Christopher Jordan, M.D., Defendant/ further proceedings. REVERSED AND RE- Appellee. Appeal from the District Court of MANDED FOR FURTHER PROCEEDINGS. Oklahoma County, Hon. W. Mike Warren, Trial Opinion from Court of Civil Appeals, Division Judge. Laquita Hopkins (Hopkins) appeals an IV, by Rapp, J.; Barnes, V.C.J. (sitting by desig- order denying her motion for new trial. After nation), concurs, and Goodman, J., concurs in falling and severely injuring her wrist, Hop- result. kins underwent corrective surgery. She was referred to Dr. Christopher Jordan (Dr. Jordan) 111,329 (companion to Case No. 111,328) — for postoperative follow-up care. After her fin- First Pryority Bank, an Oklahoma Banking gers began to stiffen and curve over, Dr. Jordan Corporation, Plaintiff/Appellee, v. Deborah referred Hopkins to a regimen of hand therapy, Fisher Dunn, an Individual, New Tulsa Proper- which Hopkins failed to attend as directed and ties, LLC, Defendants/Appellants, Board of ultimately elected to quit. Hopkins filed suit County Commissioners of Wagoner County against Dr. Jordan for medical negligence. and the Wagoner County Treasurer, Defen- After a jury trial, a verdict was returned for Dr. dants. Appeal from an Order of the District Jordan. Hopkins filed a motion for new trial. Court of Wagoner County, Hon. Sandy Cross- After additional briefing and a hearing, the lin, Trial Judge. The trial court defendants trial court denied Hopkins’ motion for new Deborah Fisher Dunn, a/k/a Deborah Fisher trial. We find no reversible error. AFFIRMED. Irwin (Dunn) and New Tulsa Properties, L.L.C. Substitute opinion from the Court of Civil (New Tulsa) appeal an Order denying their Appeals, Division IV, by Goodman, J.; Thorn- Motion to Reconsider Final Journal Entry of brugh, P.J., and Rapp, J., concur. Judgment and Decree of Foreclosure entered in favor of the plaintiff, First Pryority Bank (Pry- 111,328 (companion to Case No. 111,329) — ority Bank), following entry of a summary First Pryority Bank, an Oklahoma Banking judgment in favor of Pryority Bank. The Okla- Corporation, Plaintiff/Appellee, v. Deborah homa Supreme Court assigned the appeal in Fisher Dunn, an Individual, New Tulsa Proper- First Pryority Bank v Deborah Fisher Dunn, a/k/a ties, LLC, Defendants/Appellants, Board of Deborah Fisher Irwin (Dunn) and New Tulsa Prop- County Commissioners of Wagoner County erties, L.L.C., Appeal Number 111,328, as a com- and the Wagoner County Treasurer, Defen- panion appeal. This case has three parts. Part dants. Appeal from an Order of the District one is the claim of Pryority Bank that it is Court of Wagoner County, Hon. Sandy Cross- entitled to judgment on a promissory note and lin, Trial Judge. The trial court defendants foreclosure of the mortgage securing that note. Deborah Fisher Dunn, a/k/a Deborah Fisher Part two is the affirmative defense of estoppel. Irwin (Dunn) and New Tulsa Properties, L.L.C. Part three is the claim of Dunn and New Tulsa (New Tulsa) appeal an Order denying their that Pryority Bank breached an agreement and Motion to Reconsider Final Journal Entry of acted in bad faith. Both of these last two parts Judgment and Decree of Foreclosure entered in flow from the same set of alleged facts, which favor of the plaintiff, First Pryority Bank (Pry- are independent of the elements of Pryority ority Bank), following entry of a summary Bank’s claim. Priority Bank has proposed what

970 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 may be termed a hybrid form of offensive col- notice of the final adoption proceedings. The lateral estoppel because it seeks here to use a Final Decree of Adoption on appeal is reversed, judicial determination of an issue raised by a and the matter is remanded with directions to separate and different defendant in a separate appoint counsel to represent Father, and to case. This Court holds that offensive collateral conduct a new trial in this matter. REVERSED estoppel is not available under the Record here AND REMANDED WITH INSTRUCTIONS. because Dunn and New Tulsa have not been Opinion from Court of Civil Appeals, Division shown as defendants in the court cases relied IV, by Rapp, J.; Thornbrugh, P.J., and Good- upon by Pryority Bank. The trial court erred in man, J., concur. entering a final judgment on the basis of the Monday, May 6, 2013 summary judgment. Dunn and New Tulsa did raise an affirmative defense and a claim of bad 109,841 — Chesapeake Operating, Inc., Plain- faith. One result is to place in controversy the tiff/Appellee, v. Coal Gas Mart, LLC, Defen- element of the Note being due. Questions of fact dant/Appellant, and Kris K. Agrawal, Appel- exist under the summary judgment record lant. Appeal from an Order of the District regarding their defense and claim. Therefore, the Court of Oklahoma County, Hon. James B. trial court erred in granting a final judgment in Croy. This appeal comes to this Court as an this action. The cause is reversed and remanded appeal of an Order denying vacation of a for further proceedings. REVERSED AND RE- default judgment entered in Small Claims MANDED FOR FURTHER PROCEEDINGS. Court in favor of the plaintiff, Chesapeake Opinion from Court of Civil Appeals, Division Operating, Inc. (Chesapeake) and against the IV, by Rapp J.; Barnes, V.C.J. (sitting by desig- defendant, Coal Gas Mart, L.L.C. (Coal Gas). nation), concurs, and Goodman, J., concurs in Chesapeake has moved to dismiss the appeal result. and the Supreme Court has deferred that motion to this Court for decision and disposi- Friday, April 26, 2013 tion. The motion to dismiss is denied and the 110,050 — In the Matter of the Adoption of cause is remanded to the District Court for fur- O.N.B-D, Roger J. and Mary Ann Huey, Peti- ther proceedings. DEFAULT JUDGMENT tioners/Appellees, v. Christopher Lee Dickey, VACATED, ORDER TO WITHDRAW AMEND- Respondent/Appellant. Appeal from a Final ED PETITION VACATED AND CAUSE RE- Decree of Adoption entered by the District MANDED TO DISTRICT COURT FOR FUR- Court of Garvin County, Hon. John A. Blake, THER PROCEEDINGS. Opinion from Court of Trial Judge. This Court first addresses the issue Civil Appeals, Division IV, by Rapp, J.; Thorn- of whether the trial court erred when it denied brugh, P.J., and Goodman, J., concur. Father’s request for court-appointed legal ORDERS DENYING REHEARING counsel. Title 10 O.S.2011 § 7505-4.1 mandates (Division No. 1) that the trial court provide counsel if the parent Tuesday, May 7, 2013 is indigent and cannot employ counsel. The failure to provide legal counsel and to deprive 109,496 — The Town of Bernice, Oklahoma, a a parent of these rights may result in the depri- Municipal Corporation, Plaintiff/Appellee, vs. vation of due process. In re D.D.F., 1990 OK 89, Kay Zapf, Defendant/Appellant. Defendant/ ¶ 13, 801 P.2d 703, 706. Here, the trial court’s Appellant’s Petition for Rehearing filed April failure to provide counsel during the consent 5, 2013 is DENIED. hearing and termination proceedings is revers- (Division No. 4) ible error and the adoption is reversed and Thursday, April 25, 2013 remanded This Court next addresses the issue of whether Father was entitled to notice of the 110,789 — Colonial Lodge Nursing Home, hearing on the Final Decree of Adoption. A Own Risk, Petitioner, v. Jo Etta Stachmus and parent whose consent has been determined the Workers’ Compensation Court, Respon- unnecessary for the adoption of a child must be dents. Petitioners’s Petition for Rehearing is afforded due process of law by giving the par- hereby DENIED. ent notice of the adoption proceedings. In re Friday, May 3, 2013 Adoption of J.R.M., 1995 OK 79, 899 P.2d 1155. Father was entitled to notice and an opportu- 110,308 — Callie Lynn Brown, Petitioner/ nity to appear at the termination hearing. This Appellee, v. Scott Ryan Brown, Respondent/ Court finds the trial court erred in failing to Appellant. Appellant’s Petition for Rehearing ensure Father received adequate and timely is hereby DENIED.

Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 971 CLASSIFIED ADS

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972 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 OFFICE SPACE POSITIONS AVAILABLE DOWNTOWN OKC. Need a conference room for a De- FULL TIME POSITION AS ASSOCIATE ATTORNEY position, Arbitration or client meeting? Coming to OKC for large Tulsa law firm. Must have excellent consulta- for a trial that will last only a week or a month (or two) tion skills and a broad knowledge of the law. Experi- and need a short term arrangement? Permanent physi- ence in employment or business law a plus. Send résu- cal office space needed? Virtual office wanted? Execu- més to: Human Resources Dept. P.O. Box 1046, Tulsa, tive Suites offers an elegant alternative to traditional OK 74101. office space. Located in the historic 100 Park Avenue Building, EXS are minutes from the Capitol and the NW OKLAHOMA CITY AV-RATED FIRM seeks 2 asso- Court House. 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Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 973 POSITION WANTED CLASSIFIED INFORMATION

UPCOMING LAW SCHOOL GRADUATE SEEKING CLASSIFIED RATES: $1 per word with $35 minimum per in- LEGAL POSITION with firm or company. Top 10 per- sertion. Additional $15 for blind box. Blind box word count cent, law review editor, moot court, substantive legal must include “Box ___, Oklahoma Bar Association, P.O. Box internship experience in both private and public sec- 53036, Oklahoma City, OK 73152.” Display classified ads with tors. Excellent references. For résumé, please contact bold headline and border are $50 per inch. See www.okbar.org [email protected]. for issue dates and display rates. NON-OKLAHOMA ATTORNEY SEEKS FULL- OR DEADLINE: Theme issues 5 p.m. Monday before publication; PART-TIME POSITION as legal assistant or paralegal. Court issues 11 a.m. Tuesday before publication. All ads must Was law journal research editor, former staff attorney be prepaid. for U.S. 10th Circuit Court of Appeals. Extensive real SEND AD (email preferred) stating number of times to be pub- estate, title insurance, hard-rock mineral, oil & gas, di- lished to: vision order and water law experience. Qualified ex- [email protected], or pert witness at OCC. Happy to do field work in or out Emily Buchanan, Oklahoma Bar Association, P.O. Box 53036, of state. Can operate in my office or yours. Résumé and Oklahoma City, OK 73152. professional references available on request. Contract Publication and contents of any advertisement is not to be preferred. OKC office phone: 808-3530. deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an en- FOR SALE dorsement of the procedure or service involved. All placement notices must be clearly non-discriminatory. SPECTACULAR CLIFF-SIDE HOME on the south end of Grand Lake for sale. An easy weekday commute from Tulsa or weekender from OKC. Single-story brick traditional with four bedrooms, four baths, three-car garage, two kitchens, sprinkler system, alarm system. Mature trees, private setting and flawless water view from main living area and master. Back yard features expansive multi-tiered decking, cabana with brick fire- place and flower gardens. Perfect for entertaining on a “grand” scale. $569,000. Also available, 30 x 30 adjacent garage for playthings; small office building in Disney, Okla. Call 918-782-7071.

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974 The Oklahoma Bar Journal Vol. 84 — No. 13 — 5/11/2013 Vol. 84 — No. 13 — 5/11/2013 The Oklahoma Bar Journal 975