Volume 85 u No. 6 u Feb. 22, 2014

OFFICERS & BOARD OF GOVERNORS Renée DeMoss, President, Tulsa David A. Poarch Jr., President-Elect, Norman events Calendar Susan S. Shields, Vice-President, Oklahoma City James T. Stuart, Immediate Past President, Shawnee FEBRUARY 2014 Deirdre O’Neil Dexter, Sand Springs Robert D. Gifford II, Oklahoma City 24 OBA Solo and Small Firm Committee meeting; 3 p.m.; Oklahoma Bar Kimberly Hays, Tulsa Center, Oklahoma City; Contact Charles Chesnut 918-542-1845 Douglas L. Jackson, Enid John W. Kinslow, Lawton 25-28 OBA Bar Examinations; Oklahoma Bar Center, Oklahoma City; Contact James R. Marshall, Shawnee Oklahoma Board of Bar Examiners 405-416-7075 Nancy S. Parrott, Oklahoma City Kevin T. Sain, Idabel 28 OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Bret A. Smith, Muskogee Oklahoma City; Contact John Morris Williams 405-416-7000 Richard D. Stevens, Norman Linda S. Thomas, Bartlesville MARCH 2014 Kaleb Hennigh, Enid Chairperson, OBA/Young Lawyers Division 3 OBA Law Day Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Jennifer Prilliman 405-208-5174 BAR Center Staff John Morris Williams, Executive Director; 4 Government and Administrative Law Practice Section meeting; Gina L. Hendryx, General Counsel; Jim Calloway, 2 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Director of Management Assistance Program; Scott Boughton 405-717-8957 Craig D. Combs, Director of Administration; Susan Damron Krug, Director of Educational 5 OBA Technology Committee meeting; 3 p.m.; Oklahoma Bar Center, Programs; Beverly Petry Lewis, Administrator Oklahoma City; Contact Aaron Arnall 405-733-1683 MCLE Commission; Carol A. Manning, Director of Communications; Travis Pickens, Ethics Counsel; 6 OBA Lawyers Helping Lawyers discussion group meeting; 6 p.m.; Robbin Watson, Director of Information Technology; Office of Tom Cummings, 701 NW 13th St., Oklahoma City; RSVP to Jane McConnell, Coordinator Law-related Education; Kim Reber [email protected] Loraine Dillinder Farabow, Tommy Humphries, Debbie Maddox, Katherine Ogden, Steve Sullins, OBA Lawyers Helping Lawyers discussion group meeting; 7 p.m.; Assistant General Counsels; Tommy Butler, Tanner University of Tulsa College of Law, John Rogers Hall, 3120 E. 4th Pl., Rm. Condley, Sharon Orth, William Thames and Krystal Willis, Investigators 206, Tulsa; RSVP to Kim Reber [email protected] Manni Arzola, Jarrod Houston Beckstrom, 6-7 OBA Leadership Academy class; 11 a.m.; Oklahoma Bar Center, Debbie Brink, Emily Buchanan, Susan Carey, Oklahoma City; Contact OBA CLE 405-416-7000 Nickie Day, Dieadra Florence, Johnny Marie Floyd, Matt Gayle, Brandon Haynie, Suzi 7 OBA Board of Bar Examiners meeting; 9 a.m.; Oklahoma Bar Center, Hendrix, Misty Hill, Debra Jenkins, Durrel Oklahoma City; Contact Oklahoma Board of Bar Examiners 405-416-7075 Lattimore, Heidi McComb, Renee Montgomery, Larry Quinn, Lori Rasmussen, Wanda F. Reece, OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Tracy Sanders, Mark Schneidewent, Jan Oklahoma Bar Center, Oklahoma City; Contact Jeffrey Love 405-286-9191 Thompson, Laura Willis & Roberta Yarbrough 11 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar EDITORIAL BOARD Center, Oklahoma City with OSU Tulsa, Tulsa; Contact Judge David Lewis Editor in Chief, John Morris Williams; News & Layout Editor, Carol A. Manning; Editor, 405-556-9611 Melissa DeLacerda, Stillwater; Associate Editors: OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center, Dietmar K. Caudle, Lawton; Emily Duensing, Tulsa; Erin Means, Moore; Mark Ramsey, Oklahoma City with teleconference; Contact Ruth Addison 918-574-3051 Claremore; Judge Megan Simpson, Buffalo; For more events go to www.okbar.org/calendar Leslie Taylor, Ada; Judge Allen J. Welch, Oklahoma City; January Windrix, Poteau The Oklahoma Bar Association’s official website: www.okbar.org NOTICE of change of address (which must be 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© 20082014 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- ber subscriptions are included as a portion of annual dues. Any OBJ & Communications 405-416-7004 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.

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 403 404 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 Ok l a h o m a Ba r As s o c i a t i o n

table of contents Feb. 22, 2014 • Vol. 85 • No. 6 page

403 Events Calendar

406 Index to Court Opinions

407 Supreme Court Opinions

426 Court of Civil Appeals Opinions

435 Disposition of Cases Other Than by Publication

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 405 Index to Opinions of Supreme Court

2013 OK 102 In the Matter of the Estate of Gerald Laverne Brown, s/p/a Gerald L. Brown, deceased, Appellant, v. Jessie L. Brown, Individually Personal Representative of the Estate of Gerald Laverne Brown, deceased, Appellee. No. 110,323...... 4 0 7

2014 OK 2 IN RE: THE COURT RULES OF THE WORKERS’ COMPENSATION COURT - YEAR 2014 AMENDMENTS SCAD 2014-04...... 407

2014 OK 6 SAMANTHA GUFFEY, individually, Plaintiff/Appellant, v. ODIL OSTON- AKULOV, individually and MOTORCARS OF NASHVILLE INC. a Tennessee corpo- ration, Defendants/Appellees. No. 112,270...... 412

2014 OK 7 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Com- plainant, v. GRANT EVAN CHEADLE, Respondent. SCBD No. 6094...... 418

2014 OK 8 DELILAH CHRISTINE GENTGES, an individual, Plaintiff/Appellant, v. OKLAHOMA STATE ELECTION BOARD, Defendant/Appellee, and SENATOR BRIAN BINGMAN, in his official capacity as President Pro Tempore of the OKLA- HOMA STATE SENATE, REPRESENTATIVE KRIS STEELE in his official capacity as the Speaker of the OKLAHOMA HOUSE OF REPRESENTATIVES, Intervenor Defen- dants/Appellees. No. 111,290...... 419

Index to Opinions of Court of Civil Appeals

2014 OK CIV APP 11 GREGORY M. EGLESTON, derivatively on behalf of CHESAPEAKE ENERGY CORPORATION, Plaintiff/Appellant, vs. AUBREY K. McCLENDON, MERRILL A. MILLER, V. BURNS HARGIS, LOUIS ALLEN SIMPSON, ARCHIE W. DUNHAM, BOB G. ALEXANDER, VINCENT J. INTRIERI, R. BRAD MARTIN, FREDERIC M. POSES, CHARLES T. MAXWELL, RICHARD K. DAVIDSON, KATHLEEN M. EISBRENNER, DONALD L. NICKLES and FRANK A. KEATING, Defendants/Appellees, and CHESAPEAKE ENERGY CORPORATION, Nominal Defendant/Appellee. Case No. 111,833...... 426

2014 OK CIV APP 12 LYNN Z. NULL, Plaintiff/Appellee, vs. ROBIN A. POLIN, Defen- dant/Appellant. Case No. 110,468...... 426

2014 OK CIV APP 13 ANDREW R. BRIGGEMAN, Plaintiff/Appellee, vs. CANDACE L. HARGROVE, Defendant/Appellant. Case No. 110,552...... 430

2014 OK CIV APP 14 RENFRO ELECTRIC and NATIONAL AMERICAN INSURANCE COMPANY, Petitioners, vs. SCOTT SEXTON and THE WORKERS’ COMPENSA- TION COURT, Respondents. Case No. 111,711...... 432

406 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 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 102 /s/ Tom Colbert CHIEF JUSTICE In the Matter of the Estate of Gerald Laverne Brown, s/p/a Gerald L. Brown, deceased, Colbert, C.J., Reif, V.C.J., Watt, Winchester, Appellant, v. Jessie L. Brown, Individually Edmondson, Taylor, Combs and Gurich, JJ., Personal Representative of the Estate of concur; Gerald Laverne Brown, deceased, Appellee. Kauger, J., not participating. No. 110,323. February 5, 2014 WORKERS’ COMPENSATION COURT CORRECTION ORDER RULES Footnote 1 in the above styled and numbered RULE 1. ADMINISTRATOR cause is hereby corrected to strike the reference to “page 9.” In all other respects, the order shall A. The Administrator shall perform such remain unchanged. duties and responsibilities as authorized by law, and as the judges of the Court may pre- DONE BY ORDER OF THE SUPREME scribe. COURT THIS 5th DAY OF FEBRUARY, 2014. B. When the Court Administrator’s position /s/ John F. Reif is vacant, the Presiding Judge of the Workers’ Compensation Court may reassign the Admin- Vice-Chief Justice istrator’s duties and responsibilities to other 2014 OK 2 employees or judges of the Workers’ Compen- sation Court to insure the autonomy and integ- IN RE: THE COURT RULES OF THE rity of the Court’s operation. Whether the posi- WORKERS’ COMPENSATION COURT - tion is vacant or not, the Court retains control YEAR 2014 AMENDMENTS of the Court’s staff and personnel policies, SCAD 2014-04 including, but not limited to, the employment, January 16, 2014. job descriptions and supervision of its staff, As Corrected: January 17, 2014 employee leave, employee evaluations, employee salaries, reimbursement of travel ORDER and related expenses, and other policies ¶ 1 The Court Rules of the Workers’ Com- required to conduct the business of a court of pensation Court as amended and approved by record in this state. that Court on December 20, 2013, having been RULE 2. RULES OF THE COURT submitted to this Court for its consideration, CONTROLLING PROVISIONS are hereby approved. The rules are for official publication and shall become effective on Janu- A. Title 85 of the Oklahoma Statutes and ary 31, 2014. The rules as amended shall be Court rules of workers’ compensation practice published in the Oklahoma Bar Journal three and procedure in effect before February 1, times. By today’s adoption of these rules, sub- 2014, and interpretive case law of such provi- mitted by the Workers’ Compensation Court, sions, are incorporated herein by reference. this Court neither indicates what meaning Single event injuries or deaths are subject to the should be ascribed to them in any given appli- workers’ compensation statutory law and cation nor settles their validity against chal- Court rules of practice and procedure in effect lenges that may be launched on constitutional on the date of injury or death, as applicable. or statutory grounds, federal or state. Cumulative trauma injuries or occupational diseases or illnesses are subject to the workers’ DONE BY ORDER OF THE SUPREME compensation statutory law and Court rules of COURT IN CONFERENCE this 16th day of practice and procedure in effect at the time the January, 2014.

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 407 employee knew or should have known that the Court of their appearance by filing an entry of cumulative trauma injury, occupational disease appearance. An entry of appearance on behalf or illness was related to work activity. of the respondent shall be filed no later than ten (10) days after the respondent’s receipt of a B. Any matter of practice or procedure not file-stamped copy of a Form 3, 3A, 3B or 3F. specifically dealt with either by the Workers’ The entry of appearance for the respondent Compensation Code by Title 85 of the Oklaho- shall contain language stating whether the ma Statutes or by these rules will be guided by employer is an active member of a certified practice or procedure followed in the district workplace medical plan in which the claimant courts of this state. is potentially enrolled, and if so, the name of RULES 3 AND 4 - NO CHANGE the plan. RULE 5. DATE OF FILING - STAMPING - C. The attorney of record for the claimant in TIME COMPUTATION a case shall be the attorney signing the first Form 3, 3A, 3B or 3F filed in the case. Any other A. All forms filed with the Court shall be file- attorney who files an entry of appearance on stamped by the Clerk on the date of receipt. behalf of any party in the case or who is identi- B. The time within which an act is to be done, fied as a substitute attorney pursuant to a as provided in Title 85 of the Oklahoma Stat- notice of substitution of attorney shall also be utes or these rules, shall be computed by considered an attorney of record. The Court excluding the first day and including the last shall send notices to all attorneys of record day. If the last day is a legal holiday as defined until a substitution of attorney has been filed in 25 O.S., §82.1, it shall be excluded, and per- or an Application for Leave to Withdraw as formance of that act shall be required on the Attorney has been filed and granted by the next regular business day. Time limits pre- Court pursuant to Rule 51(B). Various attor- scribed by law or these rules related to filing neys may appear before the Court in a matter, dates shall be computed as provided in this but notice shall be sent only to those attorneys rule from the date of filing as reflected by the who are an “attorney of record” as defined in date of the file stamp on the document. When this subsection. the period of time prescribed or allowed is less RULES 8 THROUGH 38 - NO CHANGE than eleven (11) days, intermediate legal holi- days and any other day when the office of the RULE 39. TRAVEL EXPENSES - MEDICAL court clerk does not remain open for public AND VOCATIONAL REHABILITATION business until the regularly scheduled closing A. Upon reasonable advance notice from the time, shall be excluded from the computation. respondent, the claimant must submit to a RULE 6. CORRESPONDENCE WITH THE medical examination by a physician selected COURT; PROHIBITED COMMUNICATIONS by the respondent. If the claimant refuses to WITH THE COURT AND COURT APPOINT- submit to the examination, the respondent may ED PROFESSIONALS - NO CHANGE file a Form 13 requesting the claimant’s com- pensation and right to prosecute any proceed- RULE 7. APPEARANCE OF PARTIES ing under the Workers’ Compensation Code be A. A party in any proceeding before this suspended during the period of refusal as pro- Court, including agreed settlements, may vided in 85 O.S., Section 326(I). The claimant appear pro se, by an attorney licensed to practice must show cause at the hearing why the law in Oklahoma, by an out-of-state attorney respondent’s request should not be granted. If admitted to practice before the Court pursuant the claimant’s failure to appear for the sched- to rules of the Oklahoma Bar Association, or by uled examination was without good cause, the a licensed legal intern. Provided further, corpo- Court shall order the claimant to reimburse the rate entities, limited liability companies, insur- respondent for payment of the physician’s ance companies and own risk employers may charge for the missed examination, but not in appear only by an attorney. No persons except excess of Two Hundred Dollars ($200.00). licensed attorneys, pro se litigants, and legal B. The respondent shall reimburse the interns knowledgeable of the case may present employee for the actual mileage in excess of documents to the judge for signature. twenty (20) miles round-trip to and from the B. Attorneys who will appear before the claimant’s home to the location of a medical Court on behalf of a party shall notify the service provider for all reasonable and neces-

408 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 sary medical treatment, for vocational rehabili- ions in claims against the last employer for tation or retraining, for an evaluation by an combined disabilities or against the Multiple independent medical examiner and for any Injury Trust Fund; evaluation, including an evaluation for voca- 5. have no felony conviction under federal or tional rehabilitation or vocational retraining, state law within seven (7) years before the date made at the respondent’s request, but in no of the physician’s application to serve as a event in excess of six hundred (600) miles qualified an independent medical examiner; round-trip. Mileage and necessary lodging expenses are limited to the provisions of the 6. have a valid Oklahoma State Bureau of State Travel Reimbursement Act, 74 O.S., Sec- Narcotics and Dangerous Drugs Control tion 500.1 et. seq. Meals will be reimbursed at (BNDD) registration (or comparable registra- the rate of Eight Dollars ($8.00) per meal per tion from the state where the physician is four hours of travel status, not to exceed three licensed and practices if other than Oklahoma) meals per day. and federal Drug Enforcement Agency (DEA) registration, as authorized by law for the phy- C. The respondent shall reimburse the claim- sician’s professional license; and ant for travel expenses as provided in this rule within sixty (60) days from receipt of a request 7. have a valid, unrestricted professional license for reimbursement. If the respondent fails to as a physician which is not probationary. timely reimburse the claimant, the Court shall B. Appointment. Appointment of physicians assess a Five Hundred Dollar ($500.00) penalty to the list of qualified independent medical against the respondent, payable to the claimant. examiners, and maintenance and periodic vali- RULE 40. APPLICATION FOR CHANGE OF dation of such list shall be by a majority vote of PHYSICIAN - NO CHANGE the judges of the Court. Physician appoint- RULE 41. INDEPENDENT MEDICAL ments shall be for a two-year period. EXAMINERS - APPOINTMENTS C. Application for Appointment. To request A. Qualifications. To be eligible for appoint- appointment to the list of qualified indepen- ment by the Court to the list of qualified inde- dent medical examiners, a physician shall: pendent medical examiners and for retention 1. Submit a signed and completed applica- on the list, the physician must: tion Form 463 and a signed and completed 1. be a licensed physician in good standing as physician disclosure Form 17 to the following provided in the Workers’ Compensation address: Oklahoma Workers’ Compensation Code; Court, Attention: Medical, 1915 N. Stiles Ave- nue, Oklahoma City, Oklahoma 73105-4918. 2. be highly experienced and competent in Illegible, incomplete or unsigned applications the physician’s specific field of expertise and in and disclosures will not be considered by the the treatment of work-related injuries; Court and shall be returned. A copy of the application Form 463 and physician disclosure 3. be knowledgeable of workers’ compensa- Form 17 may be obtained from the Court at the tion principles and the workers’ compensation address set forth in this paragraph, or from the system in Oklahoma, as demonstrated by prior Court’s web site; experience and/or education; 2. Submit a current curriculum vitae, togeth- 4. have in force and effect health care pro- er with the application Form 463 and physician vider professional liability insurance from a disclosure Form 17, to the address set forth in domestic, foreign or alien insurer authorized to preceding paragraph; and transact insurance in Oklahoma or in the state where the physician practices, if different from 3. Verify that the physician, if appointed, Oklahoma. The per claim and aggregate limits will: of the insurance must be at least One Million a. provide independent, impartial and objec- Dollars ($1,000,000.00). This insurance require- tive medical findings in all cases that come ment shall not apply to physicians requesting before the physician; their services under the independent medical examiner system to be restricted to providing b. decline a request to serve as an indepen- opinions regarding the nature and extent of dent medical examiner only for good cause permanent impairment, if any, and/or opin- shown;

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 409 c. conduct an examination, if necessary, with- B. The Court may remove a physician from in thirty (30) calendar days from the date of the the list of qualified independent medical exam- order appointing the examiner, unless other- iners for cause, including, but not limited to the wise approved by the Court, when necessary following grounds: to render findings on the questions and issues 1. a material misrepresentation on the Form submitted; 463 application for appointment to the list of d. prepare a written report in accordance qualified independent medical examiners or with Rule 20 which addresses the issues set out on the physician disclosure Form 17; in the order of appointment; 2. refusal or substantial failure to notify the e. submit the report to the parties and the Court of any change affecting the physician’s Court within fourteen (14) calendar days of a qualifications as provided in Rule 41(A); or required examination of the claimant and/or 3. refusal or substantial failure to comply completion of necessary tests, or within four- with the provisions of Rules 41 through 45, 85 teen (14) calendar days after receipt of neces- O.S., Section 329, or other applicable Court sary records and information if no examination rules and statutes. and/or tests are required; C. In arriving at a determination regarding f. accept as payment in full for services ren- whether to remove a physician from the list, the dered as an independent medical examiner the Court may consider the character of the alleged fees established pursuant to Rule 44; violation and all of the attendant circumstances, g. submit to a review pursuant to Rule 42 and and may confer with the Physician Advisory 85 O.S., Section 329(I); Committee (85 O.S., Section 373), or other public or private medical consultants. h. submit annually to the Workers’ Compen- D. A physician whose qualification to serve sation Court written verification of valid health as independent medical examiner has been care provider professional liability insurance revoked by the Court is not eligible to be select- as and if required in subsection A of this rule; ed as an independent medical examiner during i. notify the Workers’ Compensation Court in the period of revocation. writing upon any change affecting the physi- RULE 43. INDEPENDENT MEDICAL EXAM- cian’s qualifications as provided in subsection INERS - REQUESTS FOR ASSIGNMENT A of this rule; and A. Appointment of an independent medical j. comply with all applicable statutes and examiner from the Court’s list of independent Court rules. medical examiners is governed by this rule. D. Disclosure. As part of the application, the Appointments shall take into account the spe- physician shall identify, on the physician dis- cialty, availability and location of the examiner. closure Form 17 any ownership or interest in a B. In order to be eligible for appointment, a healthcare facility, business or diagnostic cen- qualified an independent medical examiner: ter that is not the physician’s primary place of business, including any employee leasing 1. shall not have a financial interest in the arrangement between the physician and any claimant’s award; and health care facility that is not the physician’s 2. in a case involving permanent disability, primary place of business. Failure to do so may shall not be a treating physician of the injured result in disqualification by the Court Admin- employee or have treated the injured employee istrator from providing treatment under the with respect to the injury for which the claim is Workers’ Compensation Code. being made or the benefits are being paid. RULE 42. INDEPENDENT MEDICAL EXAM- C. Requests for the appointment of an inde- INERS - REVOCATION OF APPOINTMENT pendent medical examiner may be set for a A. Removal of a physician from the list of prehearing conference, at the discretion of the Court. qualified independent medical examiners shall be by request of the independent medical D. The parties shall send the employee’s examiner or by a majority vote of the judges of medical records to the independent medical the Court. examiner by regular mail within ten (10) calen-

410 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 dar days of receipt of the Court order assigning RULES 48 THROUGH 50 - NO CHANGE the examiner. If necessary, the independent RULE 51. DISPUTED ATTORNEY FEES - medical examiner may contact persons in WITHDRAWAL OF ATTORNEY - CHANGE whose possession the records or information is OF ADDRESS located solely for the purpose of obtaining such records or information. A. When a dispute arises among several attorneys as to the identity of claimant’s attor- E. An independent medical examiner may ney of record, or when several successive attor- decline to accept the Court’s appointment only neys lay claim to a fee in the same case, the trial for good cause shown. judge shall decide the issues raised and allo- F. Disputes relating to treatment provided or cate the fee allowed in proportion to the ser- to be provided through a certified workplace vices rendered. medical plan, including requests for change of B. 1. Before any attorney may withdraw as an physician within the plan, shall be timely pro- attorney from a Workers’ Compensation Court cessed as provided by 85 O.S. Section 328(D)(1) case, the attorney shall obtain leave of Court to (e), through the internal dispute resolution withdraw, for good cause shown. procedures of the certified workplace medical plan before pursuing remedies in the Workers’ 2. The attorney filing the Application for Compensation Court. Leave to Withdraw as Attorney of Record shall RULES 44 THROUGH 46 - NO CHANGE send a copy of the application to the attorney’s client and to all attorneys of record. All appli- RULE 47. MEDICAL CASE MANAGERS - cations shall be signed by the party on whose REVOCATION OF APPOINTMENT behalf the attorney has previously appeared or A. Removal of a case manager from the list of contain a certificate of the movant attorney qualified independent medical case managers that: shall be at the request of the case manager, or a. the client has knowledge of and has by a majority vote of the judges of the Court. approved or refused to approve the withdraw- B. Grounds for removal include, but are not al; or limited to: b. the attorney has made a good faith effort to 1. a material misrepresentation on the Form notify the client and the client cannot be located. 626 application for appointment to the list of 3. In all cases, the moving attorney shall cer- qualified independent medical case managers; tify whether or not: 2. refusal or substantial failure to notify the a. the case is set for trial or mediation; Court of any change affecting the case manag- er’s qualifications as provided by statute or b. the case is pending for an order; this rule; or c. the case is pending on appeal; 3. refusal or substantial failure to comply d. a permanent total disability order has been with the provisions of Rules 46 through 49, or entered; or other applicable Court rules, statutes or orders in the specific case assigned. e. a death claim order has been entered. C. In arriving at a determination regarding 4. All applications to withdraw shall include whether to remove a case manager from the an order for the Court. list, the Court may consider the character of the 5. A Form 93 has been adopted by the Court alleged violation and all of the attendant cir- that may be used for this purpose. cumstances, and may confer with the Physi- cian Advisory Committee (85 O.S., Section 6. The filing of a Form 93 does not perfect an 373), or other public or private medical or case attorney lien. management consultants. C. Except when an attorney’s representation D. A case manager whose qualification to has been terminated at the client’s initiative, no serve as an independent medical case manager attorney shall be allowed to withdraw as an has been revoked by the Court is not eligible to attorney for a party when that attorney has be selected as an independent medical case signed the pleadings necessary to perfect an manager during the period of revocation. appeal to the Court en banc. This prohibition

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 411 shall apply until the appeal has been fully sub- JUDGMENT OF THE TRIAL COURT IS mitted to the Court en banc for consideration. REVERSED; CAUSE REMANDED FOR This prohibition shall not apply if another PROCEEDINGS CONSISTENT WITH attorney has entered an appearance for the THIS OPINION appealing party before the filing of the applica- Paul E. Quigley, Quigley, Henry & Hill, Okla- tion to withdraw. homa City, Oklahoma, for Plaintiff/Appellant. D. Any attorney of record shall give notice of Craig Edward Brown and Evan A. McCormick, a change of address by mailing to the docket Wheeler, Wheeler, Morgan, Faulkner and office, a copy of the letterhead containing the Brown, Oklahoma City, Oklahoma, for Defen- new address and a list containing the Oklaho- dants/Appellees. ma Bar Association number of each attorney member of the firm who regularly appears in COMBS, J.: Court. A party acting pro se shall mail notice of ¶1 The only question presented on appeal is the change of address to the docket office. whether the district court possesses in personam Attorneys of record who change firms shall jurisdiction over a Tennessee individual and notify the Court of the status of the representa- corporation, who sold a motor vehicle to an tion of their clients, and shall immediately Oklahoma resident. We hold that the district withdraw, when appropriate. court possesses jurisdiction. The totality of RULES 52 THROUGH 65 - NO CHANGE contacts in this cause indicates that the exercise RULE 66. EFFECTIVE DATE of in personam jurisdiction is proper and does not violate the due process rights of Defen- These rules, as amended, shall become effec- dants/Appellees. tive on March 6, 2012 January 31, 2014. Alleged Facts and Procedural History 2014 OK 6 ¶2 Guffey is a resident of Oklahoma County, SAMANTHA GUFFEY, individually, Oklahoma. Ostonakulov is a resident of the Plaintiff/Appellant, v. ODIL State of Tennessee and MNI is a Tennessee cor- OSTONAKULOV, individually and poration with its principal place of business in MOTORCARS OF NASHVILLE INC. a Nashville, Tennessee. MNI operates a used car Tennessee corporation, Defendants/ lot in Nashville, Tennessee. On or about June Appellees. 11, 2012, Guffey was the winning bidder on a No. 112,270. February 11, 2014 used 2009 Volvo XC 90 listed for auction on eBay, Inc. by MNI. Guffey, after receiving the ON APPEAL FROM THE DISTRICT vehicle, determined that the vehicle was not in COURT OF OKLAHOMA COUNTY the condition advertised, and filed a Petition in HONORABLE BRYAN C. DIXON the District Court of Oklahoma County on DISTRICT JUDGE December 19, 2012. In her petition, Guffey alleged Defendants engaged in fraud as well as ¶0 Plaintiff/Appellant Samantha Guffey violations of the Oklahoma Consumer Protec- (Guffey), an Oklahoma resident, filed a lawsuit tion Act, 15 O.S. §751 et seq. against Defendants Odil Ostonakulov (Oston- akulov) and Motorcars of Nashville, Inc. (MNI), ¶3 On May 10, 2013, Defendants moved to a resident of Tennessee and a Tennessee corpo- dismiss for lack of personal jurisdiction pursu- ration, respectively, in the District Court of ant to 12 O.S. 2011 §2012(B)(2), on the grounds Oklahoma County. Guffey alleged fraud and that they did not possess minimum contacts violations of the Oklahoma Consumer Protec- with Oklahoma sufficient for the state to exer- tion Act, 15 O.S. §751 et seq.in connection with cise in personam jurisdiction without implicat- her purchase of a vehicle from Defendants ing due process concerns.1 Guffey filed a using the auction site eBay. On September 20, Response to Defendants’ Motion to Dismiss 2013, the trial court dismissed the action and Motion to Allow Amended Petition on because it determined Oklahoma lacked juris- June 24, 2013, arguing that in personam jurisdic- diction over Defendants. Guffey appealed. We tion was proper because the minimum contacts hold that because Defendants possessed suffi- requirement has been satisfied. Guffey’s cient minimum contacts with the State of Okla- Response also included an affidavit by her homa, the district court possessed in personam attesting to the facts she alleges are sufficient to jurisdiction over Defendants. provide for in personam jurisdiction.

412 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 ¶4 Guffey’s affidavit provides that she bid on ¶8 The trial court held a hearing on Defen- the Volvo that is the subject of the underlying dants’ second Motion to Dismiss on November dispute on eBay in part based on a thirty-day 6, 2013, where the parties argued the issue of in limited warranty after the purchase, included personam jurisdiction. In an order dated Sep- in the record. Guffey’s affidavit indicates that tember 20, 2013, the trial court sustained Defen- after she bid, but several days before the clos- dants’ Motion to Dismiss and dismissed the ing date of the auction, she received an email action for lack of in personam jurisdiction over solicitation from Ostonakulov suggesting she Defendants.2 Guffey appealed, and this cause contact him by phone and negotiate a buy it was retained on the Court’s own motion and now price for the vehicle. She chose not to do assigned to this office on November 20, 2013. so, but only after calling and speaking with Standard of Review him personally about the matter. After she dis- covered that she won the auction with the ¶9 In Oklahoma, a special appearance with a highest bid, she asserts she had her father call motion to dismiss is the proper method for and speak to Ostonakulov about the final challenging in personam jurisdiction. Powers v. details of the matter and payment instructions. District Court of Tulsa County, 2009 OK 91, ¶7, She then signed a purchase agreement that was 227 P.3d 1060; In re Turkey Creek Conservancy mailed to her father’s offices in Oklahoma City District, 2008 OK 8, n. 4, 177 P.3d 558; Southard by Ostonakulov, and returned it to Tennessee. v. Oil Equipment Corp., 1956 OK 74, 296 P.2d Ostonakulov also helped to arrange shipping 780. In Powers, this Court explained that a of the vehicle to Oklahoma, where Guffey took defendant challenging in personam jurisdiction delivery. has an initial procedural burden to raise the facts challenging in personam jurisdiction, usu- ¶5 Guffey further asserts that this eBay sale ally by accompanying a motion to dismiss with is not an isolated transaction for Defendants, an affidavit or a statement from the attorney and that they are an active “power seller” on what proof would be shown at an evidentiary eBay, averaging 12-35 cars for sale every day, hearing, to be followed by a response from the and advertising 942 cars on the site. Guffey party asserting jurisdiction also accompanied also asserts that she knows of at least three cars by affidavits. Powers, 2009 OK 91, ¶7. sold by Defendants in the state of Oklahoma, and believes they have sold more than thirty ¶10 When in personam jurisdiction is chal- cars to residents of the state. lenged, the jurisdiction over a non-resident defendant cannot be inferred, but instead must ¶6 With leave of the trial court, Guffey filed affirmatively appear from the trial court record, an Amended Petition on July 28, 2013, contain- and the burden of proof in the trial court is ing many of the facts she first provided in her upon the party asserting that jurisdiction exists. affidavit, alleging an exercise of in personam Powers, 2009 OK 91, ¶7; Gilbert v. Security Finan- jurisdiction over the Defendants by the trial cial Corp., 2006 OK 58, ¶2, 152 P.3d 165; Conoco, court was proper. Defendants again moved to Inc. v. Agrico Chemical Co., 2004 OK 83, ¶20, 115 dismiss on July 17, 2013, asserting that because P.3d 829. The determination of in personam juri- Guffey’s Amended Petition contained no affi- sidiction is a legal ruling, subject to de novo davit or other written materials, to support its review by this Court, and this Court will can- stated facts, that would support its jurisdic- vass the record for proof3 that the nonresident tional allegations, it was facially deficient and party had sufficient contacts with the state to did not comport with a prima facie showing of assure that traditional notions of fair play and personal jurisdiction over Defendants. substantial justice will not be offended if this ¶7 Guffey filed a response to the Defendants’ state exercises in personam jurisdiction. Conoco, second motion to dismiss on August 2, 2013, Inc., 2004 OK 83, ¶¶9 & 20. asserting that her Amended Petition and the ¶11 In Personam Jurisdiction Requires affidavit accompanying her Response to Defen- Sufficient Minimum Contacts with the State dants’ first motion to dismiss were sufficient to of Oklahoma so that the Exercise of illustrate the existence of minimum contacts so Jurisdiction Does not Offend Traditional as to justify the trial court’s exercise of in per- Notions of Fair Play and Substantial Justice. sonam jurisdiction, and requesting time from the trial court to conduct discovery with regard ¶12 In personam jurisdiction is the power to to Ostonakulov’s contacts with the State of deal with the person of the defendant and ren- Oklahoma. der a binding judgment against that defendant.

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 413 Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, clause to ensure.” International Shoe Co., 326 ¶16, 115 P.3d 829; Gilbert v. Security Finance U.S. at 319. Requiring sufficient minimum con- Corp. of Oklahoma, Inc., 2006 OK 58, ¶16, 152 P.3d tacts protects a person’s liberty interest in not 165; Hobbs v. German-American, 1904 OK 60, ¶5, being subjected to a binding judgment in a 78 P. 356. In personam jurisdiction may be acquired forum where the person has no meaningful either by service of process or by voluntary contacts, ties, or relations. Burger King Corpora- appearance before the court. Conoco, Inc., 2004 tion v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. OK 83, ¶16. Title 12 O.S. Supp. 2012 §2004(F), 2174, 2181, 85 L.Ed.2d 528; Conoco, Inc., 2004 known as the long-arm statute, allows jurisdic- OK 83, ¶18. tion over non-residents in Oklahoma courts by providing for service of process outside of the ¶15 Applying federal jurisprudence, this state. Mastercraft Floor Covering, Inc. v. Charlotte Court has held that when a non-resident delib- Flooring, Inc., 2013 OK 87, ¶10, 313 P.3d 911; erately engages in significant activities in a Conoco, Inc., 2004 OK 83, ¶16. Title 12 O.S. Supp. forum state or creates continuing obligations 2012 §2004(F) provides: “[a] court of this state between the non-resident and the residents of may exercise jurisdiction on any basis consistent the forum, the non-resident submits to the with the Constitution of this state and the Con- jurisdiction of the state. Mastercraft Floor Cover- stitution of the United States.” ing, Inc., 2013 OK 87, ¶12; Hough v. Leonard, 1993 OK 112, ¶7, 867 P.2d 438. Jurisdiction ¶13 This Court has previously stated that the under the long-arm statute is predicated on intent of the long-arm statute is to extend the foreign state activity that results in forum state jurisdiction of Oklahoma courts over non-resi- harm. Mastercraft Floor Covering, Inc., 2013 OK dents to the outer limits permitted by the Okla- 87, ¶12; Hough, 1993 OK 112, ¶7. A non-resident homa Constitution and the due process clause who has purposefully directed activities at of the United States Constitution. Mastercraft forum residents must present a compelling Floor Covering, Inc., 2013 OK 87, ¶10; Conoco, case that jurisdiction would be unreasonable or Inc., 2004 OK 83, ¶17; Fields v. Volkswagen of that the exercise of in personam jurisdiction America Inc., 1976 OK 106, ¶6, 555 P.2d 48. The would offend the traditional notions of sub- outer limits of what constitutes due process in stantial justice and fair play. Mastercraft Floor regard to in personam jurisdiction have been set Covering, Inc., 2013 OK 87, ¶12; Hough, 1993 OK and described in some detail by the Supreme 112, ¶7. Court of the United States. Conoco, Inc., 2004 OK 83, ¶17. ¶16 When a non-resident corporation exer- cises the privilege of conducting activities in a ¶14 In the seminal case of International Shoe state, it also enjoys the benefits and protections Co. v. State of Washington, Office of Unemploy- of the laws of that state and any obligations ment Compensation and Placement et al., 326 U.S. connected with that activity may be enforced 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme in that state’s courts. Mastercraft Floor Covering, Court of the United States created what is col- Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK 83, loquially deemed the minimum contacts test ¶19; International Shoe Co., 326 U.S. at 319. The when it determined: focus is on whether there is some act by which due process requires only that in order to the defendant purposefully avails itself of the subject a defendant to a judgment in person- privilege of conducting activities within the am, if he be not present within the territory forum state, thus invoking the benefits and of the forum, he have certain minimum con- protections of its laws. Mastercraft Floor Cover- tacts with it such that the maintenance of the ing, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK suit does not offend “traditional notions of 83, ¶19; Hanson v. Denckla¸ 357 U.S. 235, 253, 78 fair play and substantial justice.” S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). Due pro- cess requires that the non-resident defendant’s 326 U.S. at 316, 66 S.Ct at 158 (quoting Mil- conduct and connection with the forum state are likin v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, such that the nonresident could have reasonably 343, 85 L.Ed. 278 (1940)). anticipated being haled into court in that state. Whether sufficient minimum contacts exist, Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; and due process is satisfied, depends upon the Conoco, Inc., 2004 OK 83, ¶19; World-Wide Volk- “quality and nature of the activity in relation to swagen Corporation v. Woodson, 444 U.S. 286, 297, the fair and orderly administration of the laws 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). A single which it was the purpose of the due process act can support jurisdiction so long as it creates

414 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 a substantial connection with the forum state. Appeals for the Ninth Circuit was well aware Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; of when it issued its ruling. The court stated: Conoco, Inc., 2004 OK 83, ¶19; McGee v. Interna- [the plaintiff] does not allege that any of tional Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, the Defendants are using eBay to conduct 201, 2 L.Ed.2d 223 (1957). business generally. He does not allege that ¶17 Sufficient Minimum Contacts Exist Defendants conduct regular sales in Cali- between Defendants and the State of fornia (or anywhere else) via eBay.. Oklahoma for the Exercise of In Personam This is a distinction with a difference, as Jurisdiction to be Proper. the cases that have found that jurisdiction ¶18 The question of in personam jurisdiction was proper based on eBay sales relied arising from a transaction on eBay is one of heavily on the fact that the defendant was first impression for this Court. Defendants using the platform as a broader vehicle for focus on the eBay listing and assert that merely commercial activity. See, e.g., Crummey v. placing an item on sale through eBay in all fifty Morgan, 965 So.2d 497, 500 (Ct.App.La.2007) states is insufficient to establish minimum con- (evidence of two prior sales to Louisiana tacts with the state of the winning bidder: residents in prior year); Dedvukaj v. Malo- ney, 447 F.Supp.2d 813, 822-23 (E.D.Mich. [t]he question to be answered is, “Does 2006) (“Although the Court’s research has placing an item for sale on eBay to all 50 not disclosed any personal jurisdiction states subject the seller to the laws of the cases involving the use of eBay auctions as state of the winning bidder at auction?” a commercial seller’s primary marketing Defendants’ Motion to Dismiss for Lack of vehicle, it is clear from the record that Personal Jurisdiction, p. 4. Defendants’ use of eBay is regular and sys- temic.”); Malcolm v. Esposito, 2003 WL The Defendants cite several cases from other 23272406 at *4 (Va.Cir.Ct. Dec. 12, 2003) jurisdictions in support of this proposition.4 In (“Defendants are commercial sellers of one of those cases, Boschetto v. Hansing, 539 F.3d automobiles who, at the time the BMW 1011 (9th Cir. 2008), the Court of Appeals for the was sold, were represented on eBay as Ninth Circuit held that a single transaction for ‘power sellers’ with 213 transactions.”). the sale of a vehicle over eBay did not satisfy the minimum contacts requirement, noting that “on Boschetto, 539 F.3d at 1019. the facts of this case — a one-time transaction Finally, the court concluded that: — the use of eBay as the conduit for that transac- tion does not have any dispositive effect on Where eBay is used as a means for estab- jurisdiction.” Boschetto, 539 F.3d at 1019. lishing regular business with a remote forum such that a finding of personal juris- ¶19 However, this Court agrees with another diction comports with “traditional notions determination made by the Court of Appeals of fair play and substantial justice,” Inter- for the Ninth Circuit in Boschetto, that “[a]t the national Shoe Co., 326 U.S. at 316, 66 S.Ct. bottom, the consummation of the sale via eBay 154, then a defendant’s use of eBay may be here is a distraction from the core issue: This properly taken into account for purposes of was a one-time contract for the sale of a good establishing personal jurisdiction. that involved the foreign state only because that is where the purchaser happened to reside, Boschetto, 539 F.3d at 1019. but otherwise created no ‘substantial connec- From the record, what we have here is not a tion’ or ongoing obligations there.” 539 F.3d at single, isolated transaction on eBay made by a 1019. The question presented here is not whether random seller. Defendants are involved in the a single eBay transaction, in and of itself, pro- commercial enterprise of selling cars. Guffey vides the minimum contacts necessary for the alleges that Defendants use eBay as a central exercise of in personam jurisdiction to be proper,5 and regular aspect of their business, allowing but rather whether the totality of contacts makes them reach out to and sell to potential buyers an exercise of jurisdiction proper. Mastercraft in numerous states, including Oklahoma. Floor Covering, Inc., 2013 OK 87, ¶18. Defendants do not dispute this fact, and instead ¶20 Boschetto is distinguishable from the facts assert that their use of eBay as the medium for of this case, a distinction that the Court of the transactions prevents the establishment of

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 415 minimum contacts with any state where a pur- Plaintiff identifies no continuing relation- chaser resides, simply because Defendants do ship between Defendant and anyone or not choose the buyer or the state where the anything in Michigan, save the craft pat- buyer is located. tern purchases made from Plaintiff itself. The only contact that McCauley is proven ¶21 We do not find that argument persua- to have had with the State of Michigan is sive. The question is whether sufficient mini- fortuitous and de minimus: the results of mum contacts are present such that the mainte- two auction sales underpinning the instant nance of the suit does not offend traditional dispute, and over which Defendant had notions of fair play and substantial justice. little, if any, control. International Shoe Co., 326 U.S. at 316, 66 S.Ct at 158. The Defendants’ use of eBay to make mul- Winfield Collection, Ltd., 105 F. Supp.2d at tiple sales is systemic and appears to be a core 751. part of their business. Guffey’s affidavit alleges Here, Guffey alleges both greater contact than this is not the first sale they have made in Okla- the fortuitous winning of an isolated eBay auc- homa by those means. In this cause, the auc- tion, and further alleges multiple other Okla- tion itself was not the only contact between homa sales and ongoing obligations in Okla- Defendants and Guffey, in Oklahoma, as part homa by the Defendants in the form of a war- of the underlying transaction. Defendants ranty. Cf. Malone v. Berry, 881 N.E.2d 283, ¶14 argue that an exercise of jurisdiction would be (Ohio Ct. App. 2007) (“We further note there unfair because they had no control over the are no facts indicating that the activity at issue winner of the auction, and yet they reached out involved more than a single transaction.”); to Guffey prior to the completion of bidding in Machulsky v. Hall, 210 F. Supp.2d 531 (D.N.J. an attempt to negotiate a sale outside of eBay’s 2002) (Plaintiff failed to show Defendants bidding process. Guffey interacted directly engaged in more than single internet transac- with Ostonakulov, and communications were tions with forum state.) Metcalf v. Lawson, 148 also exchanged between the Defendants and N.H. 35, 40; 802 A.2d 1221, 1227 (N.H. 2002) her father’s office. Further, the vehicle at issue (“what appears to be the isolated nature of this was the subject of a thirty-day limited warran- transaction and the absence of any evidence that ty that created a continuing obligation between the defendant was a commercial seller militate Defendants and a resident of this state, after against a finding of jurisdiction.”) the vehicle was shipped to Guffey here in Oklahoma.6 ¶24 By way of contrast, in situations similar to this, where the defendants were commercial ¶22 Unlike the situation in Boschetto, this was sellers engaged in systematic sales through not a single, isolated transaction that involved eBay, at least one other federal court has found the unilateral activity of Guffey. Mastercraft the exercise of jurisdiction to be appropriate. In Floor Covering, Inc., 2013 OK 87, ¶16. This Court Dedvukaj v. Maloney, 447 F.Supp.2d 813 (E.D. will not focus merely on the eBay listing or sale Mich. 2006), the court determined that an exer- itself, but rather, the totality of contacts between cise of in personam jurisdiction over the defen- the non-resident defendants and Oklahoma. dant eBay sellers was proper, rejecting their Mastercraft Floor Covering, Inc., 2013 OK 87, argument that “so long as an auction is not ¶18; Gregory v. Grove, 1976 OK 5, ¶6, 547 P.2d expressly targeted at a particular forum state, 381. (“Totality of contacts between the parties jurisdiction will only be proper in the seller’s in Oklahoma are to be considered in determin- home state.” Dedvukaj, 447 F.Supp.2d at 820. ing the sufficiency to exercise jurisdiction under Concerning the nature of eBay transactions, the long-arm service.”). court explained: ¶23 Cases in other jurisdictions cited by Internet forums such as eBay expand the Defendants, in the same vein as Boschetto, are seller’s market literally to the world and factually distinguishable for similar reasons. In sellers know that, and avail themselves of Winfield Collection, Ltd. v. McCauley, 105 F. the benefits of this greatly expanded mar- Supp.2d 746 (E.D. Mich. 2000), the court deter- ketplace. It should, in the context of these mined two sales to a Michigan resident through commercial relationships, be no great sur- eBay were insufficient to establish Michigan prise to sellers — and certainly no unfair jurisdiction over a nonresident defendant. The burden to them — if, when a commercial court also held, however, that: transaction formed over and through the

416 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 internet does not meet a buyer’s expecta- pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: tions, they might be called upon to respond 1. Lack of jurisdiction over the subject matter; in a legal forum in the buyer’s home state. 2. Lack of jurisdiction over the person; 3. Improper venue; Sellers cannot expect to avail themselves of 4. Insufficiency of process; the benefits of the internet-created world 5. Insufficiency of service of process; 6. Failure to state a claim upon which relief can be granted; market that they purposefully exploit and 7. Failure to join a party under Section 2019 of this title; profit from without accepting the concomi- 8. Another action pending between the same parties for the tant legal responsibilities that such an same claim; 9. Lack of capacity of a party to be sued; and expanded market may bring with it. 10. Lack of capacity of a party to sue. A motion making any of these defenses shall be made before Dedvukaj, 447 F.Supp.2d at 820.7 pleading if a further pleading is permitted. No defense or objec- tion is waived by being joined with one or more other defenses CONCLUSION or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not ¶25 The Supreme Court of the United States required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. has warned against permitting the march of If, on a motion asserting the defense numbered 6 of this subsec- technological progress to destroy traditional tion to dismiss for failure of the pleading to state a claim upon 8 which relief can be granted, matters outside the pleading are notions of personal jurisdiction. However, the presented to and not excluded by the court, the motion shall be Court has largely left it to lower federal and treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to state courts to work out how to strike the the motion by the rules for summary judgment. A motion to dis- proper balance in an increasingly connected miss for failure to state a claim upon which relief can be granted age. The use of a third-party auction site such shall separately state each omission or defect in the petition, and a motion that does not specify such defects or omissions shall be as eBay as a vehicle for sales cannot serve as a denied without a hearing and the defendant shall answer within shield and absolute bar to the exercise of in twenty (20) days after notice of the court’s action. 2. It appears from the transcript of proceedings before the trial personam jurisdiction by this state, merely court on August 23, 2013, that the court granted Defendants’ Motion to because the seller does not choose the buyer or Dismiss in order to allow for speedy appellate review and guidance concerning this issue of first impression. The trial court stated: the buyer’s state, when otherwise sufficient We’ve got some specific things that happened here in this case minimum contacts exist so that the exercise of that may make a difference as to the jurisdiction or not, but I think an appellate court needs to look at this and resolve this jurisdiction is reasonable and does not offend issue. Jurisdiction is very important and we certainly don’t want traditional notions of fair play and substantial to proceed with something if we don’t have jurisdiction here in justice. Mastercraft Floor Covering, Inc., 2013 OK the State. So I’m going to go ahead and sustain it as per journal entry. Let’s 87, ¶12; Hough, 1993 OK 112, ¶7. get a ruling from the appellate court about this because I’m sure EBay transactions are going to come up more and more often ¶26 Defendants are involved in the commer- around here. cial sale of vehicles to numerous states, and Supplement to Record on Accelerated Appeal, Transcript of Pro- ceedings had on August 23, 2013, Before the Honorable Bryan C. eBay is a primary means through which they Dixon, p. 14. conduct these sales. Defendants negotiated 3. The record indicates that Defendants did not provide an affida- vit with either of their Motions to Dismiss for Lack of Personal Juris- with Guffey directly over the vehicle eventually diction (filed on May 10, 2013 and July 17, 2013). The only affidavit sold to her in Oklahoma, warrantied that vehicle contained within the record is the one attached to Guffey’s two Responses to Defendants’ Motions to Dismiss. While the trial court while it was to be titled and driven in Oklahoma, held a hearing, it made no finding of facts. Journal Entry, Sep. 20, 2013, and have allegedly engaged in more than one Record on Accelerated Appeal, 7. It would appear that Defendants are challenging the facial sufficiency of Guffey’s petition. See, e.g., Powers, such transaction in this state. The totality of 2009 OK 91, ¶8 (“Husband’s motion to dismiss was not accompanied Defendants’ contacts with Oklahoma constitute by affidavit of Husband or counsel showing what proof would show more than sufficient minimum contacts for the at an evidentiary hearing to adjudicate contested facts. The motion was not accompanied by an evidentiary substitute. Husband’s §2012(B)(2) exercise of in personam jurisdiction to be reason- motion to dismiss challenging in personam jurisdiction thus challenges able and comport with traditional notions of fair the facial sufficiency of Wife’s petition.”). 4. While pronouncements of federal law questions by inferior fed- play and substantial justice. eral court are not binding on this Court, they are persuasive. Mehdipour v. State ex rel. Dept. of Corrections, 2004 OK 19, ¶18, 90 P.3d 546; Akin v. JUDGMENT OF THE TRIAL COURT IS Missouri Pacific Railroad Co., 1998 OK 102, ¶ 30, 977 P.2d 1040; Dority v. REVERSED; CAUSE REMANDED FOR Green Country Castings Corp.,1986 OK 67, ¶ 11, n. 24, 727 P.2d 1355). 5. This court has emphasized, however, that a single transaction PROCEEDINGS CONSISTENT WITH can be enough to make an exercise of in personam jurisdiction proper, THIS OPINION so long as it creates a substantial connection with the forum state. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK ALL JUSTICES CONCUR 83, ¶19; McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957). 6. The warranty document provided in the record does not contain COMBS, J.: any choice of law provisions or a venue selection clause that would indicate the exercise of in personam jurisdiction by a court of this state 1. Title 12 O.S. 2011 §2012 provides in pertinent part: would be improper. Plaintiff’s Response to Defendants’ Motion to B. HOW PRESENTED. Every defense, in law or fact, to a claim Dismiss, Exhibit 1. for relief in any pleading, whether a claim, counterclaim, cross- 7. In Dedvukaj the court applied the “sliding scale” analysis of claim, or third-party claim, shall be asserted in the responsive interactivity introduced in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 417 F.Supp. 1119 (W.D. Penn. 1997) as a tool to help determine the appro- 2) Respondent’s affidavit of resignation priateness of exercising in personam jurisdiction. This analysis requires an examination of the interactivity level of websites in order to gauge reflects that he desires to resign and: a) it is whether sufficient contacts are present. However, the test in Zippo was freely and voluntarily rendered; b) he is created to analyze jurisdictional requirements in causes where the defendants were operators of the website in question. This Court not subjected to coercion and/or duress; c) agrees with the Court of Appeals for the Ninth Circuit and other courts he is fully aware of the consequences of that have determined the sliding scale analysis developed in Zippo is inapplicable to a case involving sales over eBay. See, e.g., Boschetto, 539 submitting the resignation; and d) that he F.3d at 1018. Defendants in this cause do not run eBay. The question is aware the resignation is subject to the here is not whether jurisdiction over eBay or its operators is proper, but approval of the Supreme Court. He also whether jurisdiction over Defendents, who are using it as a vehicle for sales, is proper. We have not applied the Zippo “sliding scale” analysis intends the effective date of the resignation in such a fashion before and decline to do so now, but agree with the to be the date and time of its execution and Dedvukaj court that regular and systematic use of a site such as eBay is a valid factor for consideration. Boschetto, 539 F.3d at 1019; Dedvukaj, he will conduct his affairs accordingly. 447 F.Supp2d at 822-23. 8. The Court stated in World-Wide Volkswagen Corp. v. Woodson, 444 3) Respondent states in his affidavit that he U.S. 286, 292-93, 100 S.Ct. 559, 565, 62 L.Ed.2d 490 (1980): is aware the Oklahoma Bar Association [t]he limits imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against inconvenient litigation, has investigated specific allegations of have been substantially relaxed over the years. As we noted in professional misconduct, to wit: McGee v. International Life Ins. Co., supra, 355 U.S., at 222-223, 78 S.Ct., at 201, this trend is largely attributable to a fundamental DC 13-208: Grievance by Gary Crews. transformation in the American economy: “Today many commercial transactions touch two or more On or about May 30, 2013, Respondent States and may involve parties separated by the full conti- was named as the Successor Trustee in the nent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted Revocable Living Trust of Evelyn Baker. by mail across state lines. At the same time modern transpor- Respondent misappropriated a total of tation and communication have made it much less burden- some for a party sued to defend himself in a State where he $185,500.00 from the brokerage and estate engages in economic activity.” accounts of the Revocable Living Trust in The historical developments noted in McGee, of course, have only accelerated in the generation since that case was decided. three separate transactions and converted Nevertheless, we have never accepted the proposition that state the money to his personal use and benefit. lines are irrelevant for jurisdictional purposes, nor could we, and Respondent also transferred mineral in- remain faithful to the principles of interstate federalism embod- ied in the Constitution. terests belonging to the estate to himself. After his misappropriation was discov- 2014 OK 7 ered, Respondent repaid the estate the STATE OF OKLAHOMA ex rel. full amount of $185,500.00 and executed a OKLAHOMA BAR ASSOCIATION, Quit Claim Deed transferring the mineral Complainant, v. GRANT EVAN CHEADLE, interests back to the estate. Respondent Respondent. acknowledges that the allegations, if proven, would constitute violations of SCBD No. 6094. February 10, 2014 Rule 1.3, Rule Governing Disciplinary ORDER APPROVING RESIGNATION Proceedings (RGDP), 5 O.S. 2001, Ch. 1, FROM OKLAHOMA BAR ASSOCIATION App. 1-A, and Rules 1.5, 1.15, and 8.4(a) PENDING DISCIPLINARY PROCEEDINGS and (c) of the Oklahoma Rules of Profes- AND WAIVING COSTS. sional Conduct, 5 O.S. 2001, Ch. 1, App. 3-A, and his oath as an attorney. ¶1 Upon consideration of the complainant’s, Oklahoma Bar Association (Bar Association), 4) Respondent waives any and all right to application for an order approving the Resig- contest the allegations. nation Pending Disciplinary Proceedings exe- 5) Respondent is aware that, pursuant to cuted by Grant Evan Cheadle (Respondent), Rule 8.1, RGDP, either the approval or the application reveals: disapproval of his resignation is within 1) Respondent, Grant Evan Cheadle, OBA the discretion of the Supreme Court of #1634, was admitted to membership in Oklahoma. the Oklahoma Bar Association on Octo- 6) Respondent has agreed to comply with all ber 14, 1982. His official OBA roster provisions of Rule 9.1, RGDP, within address is 4202 East Harvard Avenue, twenty (20) days following the date of his Gilbert, AZ 85234. On January 28, 2014, resignation. he submitted his affidavit regarding res- ignation from membership in the Bar 7) Respondent acknowledges and agrees Association pending investigation of a that he may be reinstated to the practice disciplinary proceeding. of law only upon full compliance with the

418 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 conditions and procedures prescribed by Evan Cheadle is hereby approved. Costs of the Rule 11, RGDP, and that he may make no proceeding are waived. application for reinstatement prior to the ¶4 DONE BY ORDER OF THE SUPREME expiration of five years from the effective COURT IN CONFERENCE THIS 10TH DAY date of this Order Approving Resignation OF FEBRUARY, 2014. Pending Disciplinary Proceedings. /s/ Tom Colbert 8) Respondent acknowledges that, as a result CHIEF JUSTICE of his conduct, the Client Security Fund may receive claims from his former clients. ALL JUSTICES CONCUR He agrees that should the Oklahoma Bar 2014 OK 8 Association approve and pay such Client Security Fund claims, he will reimburse the DELILAH CHRISTINE GENTGES, an fund the principal amounts and the appli- individual, Plaintiff/Appellant, v. cable statutory interest prior to the filing of OKLAHOMA STATE ELECTION BOARD, any application for reinstatement. Defendant/Appellee, and SENATOR BRIAN BINGMAN, in his official capacity as 9) Respondent has surrendered his Bar President Pro Tempore of the OKLAHOMA membership card to the Office of the Gen- STATE SENATE, REPRESENTATIVE KRIS eral Counsel with his resignation. STEELE in his official capacity as the 10) Respondent acknowledges and agrees to Speaker of the OKLAHOMA HOUSE OF cooperate with the Office of the General REPRESENTATIVES, Intervenor Counsel in the task of identifying any Defendants/Appellees. active client cases wherein documents No. 111,290. February 11, 2014 and files need to be returned or forward- ed to new counsel, and in any client case APPEAL FROM THE DISTRICT COURT OF where fees or refunds are owed by OKLAHOMA COUNTY HONORABLE LISA TIPPING DAVIS, Respondent. TRIAL JUDGE 11) Respondent acknowledges that the OBA ¶0 Registered Voter brought an action against has incurred minimal costs in its investi- the State Election Board to prevent implemen- gation of the disciplinary complaint and tation of SB 692, commonly known as the Voter the OBA is not seeking the reimburse- ID Act. Registered Voter contended the Legis- ment of any costs at this time. lature violated the Oklahoma Constitution by ¶2 IT IS THEREFORE ORDERED, AD- submitting the Voter ID Act to a popular vote JUDGED, AND DECREED that the name of without first presenting it to the Governor for Grant Evan Cheadle be stricken from the roll of veto consideration. Registered Voter also con- attorneys. Because resignation pending disci- tended that requiring voters to present certain plinary proceedings is tantamount to disbar- forms of identification in order to vote would ment, Respondent Cheadle may not make appli- “interfere to prevent the free exercise of the cation for reinstatement prior to the expiration right of suffrage.” Such interference is forbid- of five years from the effective date of this order. den by Article 2, section 4 and Article 3, section Pursuant to Rule 9.1, Respondent shall notify all 5 of the Oklahoma Constitution. After review of his clients having legal business pending with of the parties’ summary judgment paperwork, him of his inability to represent them and of the the trial court ruled (1) the Oklahoma Constitu- necessity for promptly retaining new counsel. tion does not require presentment of a legisla- Notification shall be given to these clients within tive referendum to the Governor before the twenty days by certified mail. Repayment to the referendum is placed on the ballot for a vote, Client Security Fund for any money expended and (2) Registered Voter lacked standing. Upon because of the malfeasance or nonfeasance of the appeal by Registered Voter, this Court retained attorney shall be one of the conditions of rein- the appeal. statement. AFFIRMED IN PART; REVERSED IN PART. ¶3 IT IS FURTHER ORDERED, ADJUDGED, James C. Thomas, William D. Thomas, THOM- AND DECREED that the resignation pending AS LAW FIRM PLLC, Tulsa, Oklahoma for disciplinary proceedings of Respondent Grant Plaintiff/Appellant,

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 419 M. Daniel Weitman, Assistant Attorney Gen- 2, Section 43 and Article 3, Section 54 of the eral, Oklahoma City, Oklahoma for Oklahoma Oklahoma Constitution. After review of the State Election Board, Defendant/Appellee, parties’ summary judgment paperwork, the trial court ruled (1) the Oklahoma Constitution Lee Slater, James A. Williamson, Oklahoma did not require presentment of a legislative City, Oklahoma for Brian Bingman, in his referendum to the Governor before the referen- capacity as President Pro Tempore of the Okla- dum is placed on the election ballot for a vote homa State Senate, Intervenor Defendant/ and (2) Ms. Gentges “lacks standing.” Upon Appellee, review, we hold that Ms. Gentges does have Ashley D. Kemp, General Counsel, Oklahoma standing to challenge the constitutionality of House of Representatives, Oklahoma City, the Voter ID Act but find the Act was properly Oklahoma for Kris Steele in his capacity as submitted for a popular vote. We remand for Speaker of the Oklahoma House of Represen- the trial court to determine whether the identi- tative, Intervenor Defendant/Appellee, fication requirements “interfere to prevent the free exercise of the right of suffrage” and to and decide Ms. Gentges’ constitutional challenge to Andrew W. Lester, Carrie L. Vaughn, Lester, the venue requirement in 12 O.S.2011, § 133. Loving & Davies, P.C., Edmond, Oklahoma for ¶3 The parties agree that there are no material Kris Steele in his capacity as Speaker of the issues of fact in dispute on the issues of standing Oklahoma House of Representatives, Interve- and the referendum. They further agree that nor Defendant/Appellee. only questions of law are presented for resolu- REIF, V.C.J.: tion. The issue of Ms. Gentges’ standing is the first question of law to be determined. ¶1 Delilah Christine Gentges sued the Okla- ¶4 The trial court’s summary judgment order homa State Election Board in the district court specifically decided one of the issues raised by of Tulsa County to prevent implementation of Ms. Gentges’ motion for summary judgment SB 692, commonly known as the Voter ID Act.1 — whether the Oklahoma Constitution requires Ms. Gentges alleged she had standing as a tax- the Legislature to present a referendum, like SB payer and as a registered voter in Tulsa County. 692, to the Governor for veto consideration The State Election Board specially appeared in prior to submitting the measure for a popular the district court of Tulsa County and asked the vote. The trial court ruled that “the Constitu- court to dismiss this suit. The State Election tion does not require presentment of a legisla- Board contended Ms. Gentges lacked standing tive referendum to the Governor before the and Tulsa County was not the proper venue for referendum is placed on the election ballot for a suit against a State agency. The district court a vote.” In granting this declaratory relief the of Tulsa County rejected these challenges and trial court must have necessarily concluded the State Election Board asked this Court to that Ms. Gentges had standing to litigate the assume original jurisdiction to prohibit the dis- issue of whether the Voter ID Act was validly trict court of Tulsa County from proceeding enacted. In other words, she was not totally further. This Court granted partial relief by without standing. ordering the district court of Tulsa County to transfer the case to the district court of Okla- ¶5 The part of the trial court’s summary homa County. judgment order that ruled Ms. Gentges “lacks standing” can only be read to apply to her ¶2 Following the transfer of the case to Okla- complaint that the Voter ID Act would “inter- homa County, Ms. Gentges filed a motion for fere to prevent the free exercise of the right of summary judgment. She asked the court to suffrage.” In challenging Ms. Gentges’ stand- declare the Voter ID Act unconstitutional on ing to litigate this issue, the State Election the grounds that (1) the Legislature violated Board argued that Ms. Gentges cannot rely on Article 6, Section 112 of the Oklahoma Constitu- her status as a taxpayer to challenge the Voter tion by not presenting the referendum desig- ID Act, because the Voter ID Act involves no nated SB 692 to the Governor for veto consid- expenditure of public funds. In the absence of eration prior to submitting it for a popular such a circumstance to support standing, the vote, and (2) the identification requirements State Election Board has maintained that Ms. “interfere to prevent the free exercise of the Gentges must show that she suffers injury from right of suffrage” that is prohibited by Article having to present a photo ID to vote. The State

420 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 Election Board’s summary judgment eviden- constitutional provision is “a basic constitu- tiary material established that Ms. Gentges tional right.” Sparks v. State Election Board, 1964 possesses a valid photo Oklahoma drivers OK 114, ¶ 9, 392 P.2d 711, 713. The second pro- license. The State Election Board insists that vision — Article 3, § 5 — expresses a limitation this undisputed fact demonstrates Ms. Gentges on governmental power. The importance of can easily comply with the Act without any this limitation is underscored by the observa- additional burden upon, or injury to, either her tion in Sparks that: “To deprive a qualified elec- right to vote or her act of voting. tor of his [or her] right to vote, by law, would be contrary to the spirit of both Federal . . . and ¶6 The State Election Board is correct that State Constitutions.” Id., 392 P.2d at 713-714. Ms. Gentges’ status as a taxpayer is not suffi- cient to support standing to challenge the Voter ¶10 There can be no doubt that Ms. Gentges, ID Act. However, her possession of a valid as a registered voter, is within the class of photo Oklahoma drivers license is no more “those entitled” to exercise the right of suffrage relevant to her standing to challenge the consti- and has a basic constitutional right protected tutionality of the Voter ID Act than her finan- by Article 2, § 4. Members of this class (i.e., cial means to pay a poll tax would be relevant registered voters) are likewise the most logical to challenge a burden of that nature. parties to contest any conditions on the right to vote imposed by action of the Legislature, ¶7 In cases where “[n]o government expen- because registered voters are “the object of the diture is challenged,” this Court has recog- action at issue.” nized judicial discretion “[to] grant standing to private parties to vindicate the public interest ¶11 Review of the summary judgment record in cases presenting issues of great public impor- also reveals this case involves “competing tance.” State ex rel. Howard v. Oklahoma Corpora- policy considerations” (i.e., preservation of the tion Commission, 1980 OK 96, ¶ 29, ¶ 31, 614 integrity of the election process by verifying P.2d 45, 51 (citation omitted). This discretion is the identity of those voting vs. the free exercise properly exercised to grant standing where of the right of suffrage). Furthermore, the argu- there are “competing policy considerations” ments advanced by Ms. Gentges and the State and “lively conflict between antagonistic Election Board demonstrate “lively conflict demands.” Id. at ¶¶ 37-38, 614 P.2d at 52 (cita- between antagonistic demands.” tions omitted). ¶12 The foregoing considerations lead this ¶8 In addition, this Court has said “a suit Court to conclude that Ms. Gentges has stand- may be brought [by a private party] challeng- ing to vindicate both her personal interest and ing the legality of government action . . . if the the public interest by challenging legislative plaintiff is the object of the action at issue.” action that may arguably “interfere to prevent Oklahoma Public Employees Association v. Okla- the free exercise of the right of suffrage.” homa Department of Central Services, 2002 OK 71, Accordingly, we reverse the trial court ruling ¶ 16, 55 P.3d 1072, 1079. In such cases, “there is that Ms. Gentges “lacks standing” to challenge ordinarily little question that the action . . . has the Voter ID Act on the ground it would “inter- caused . . . injury, and that a judgment prevent- fere to prevent the free exercise of the right of ing or requiring the action will redress it.” Id. suffrage.” ¶9 In the case at hand, the requirement that ¶13 We do not agree, however, with Ms. voters present certain types of identification at Gentges’ contention that the provisions of SB the time of voting is a new condition upon the 692 were not properly enacted as a referen- exercise of the right of suffrage. The question of dum. Ms. Gentges insists that the fatal defect in whether this new condition would “interfere to the enactment of SB 692 lies in the Legislature’s prevent the free exercise of the right of suf- failure to present the measure to the Governor frage” is a matter of “great public importance” for veto consideration prior to its submission given the fact that “free exercise of the right of to a vote of the people. While she acknowl- suffrage” is guaranteed by two provisions in edges that the Governor has no power to veto the Oklahoma Constitution. The first provision a referendum after it is approved by a vote of — Article 2, § 4 — appears in the Bill of Rights the people, she maintains that a bill proposing and is a guarantee extended to “those entitled a referendum must be presented to the Gover- to such right.” This Court has said the right to nor for veto consideration prior to its submis- vote conferred upon a qualified elector by this sion for a popular vote.

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 421 ¶14 Ms. Gentges relies on language in Article interpretation, Ms. Gentges basically argues 5, § 2 of the Oklahoma Constitution that autho- that the enactment of law without the check rizes the Legislature to order a referendum “as and balance of a veto violates the guarantee of other bills are enacted.” Ms. Gentges further a republican form of government set forth in notes that Article 6, § 11 of the Oklahoma Con- Article IV, § 47 of the United States Constitu- stitution requires the Legislature’s presentment tion. Ms. Gentges believes that presentment and the Governor’s veto consideration of and veto consideration prior to submitting a “Every bill which shall have passed the Senate referendum to a vote of the people is the only and House of Representatives.” She points out way for the people to enact law consistent with that this Court has recently interpreted the a republican form of government. “every bill” language in Article 6, § 12 (a relat- ed veto provision) to mean “any” and “all” ¶18 Again, despite the logical appeal of this bills. Coffey v. Henry, 2010 OK 4, ¶ 3, 240 P.3d argument, settled law dictates that the check 1056, 1057. and balance of the veto is very much a part of a referendum ordered by the Legislature. In the ¶15 Despite the logical appeal of this analy- case of In re Initiative Petition No. 348, State sis, its chief problem lies in giving literal mean- Question No. 640, 1991 OK 110, ¶ 29, 820 P.2d ing to the single word “every” and ignoring 772, 780, this Court cited approvingly Kadderly important qualifying language in Article 6, § v. City of Portland, 44 Or. 118, 145-46, 74 P. 710, 11. The complete text of the presentment clause 720, for the principle that the power of the in Article 6, § 11 reads: “Every bill which shall people “[to] veto or defeat bills passed and have passed the Senate and House of Repre- approved by the Legislature” is part of the sentatives, and every resolution requiring the republican form of government. This is partic- assent of both branches of the Legislature, ularly true of a referendum by Legislative shall, before it becomes a law, be presented to order in which the Legislature merely recom- the Governor.” The important qualifying lan- mends the people enact a particular measure. In guage in question is “before it becomes a law.” such cases, the check and balance of the veto is The complete text clearly indicates that pre- preserved; it is simply exercised by the elector- sentment and veto consideration is required ate, not the Governor. for “every bill” that “becomes law” through the Legislature’s exercise of its granted sover- ¶19 The state of the record does not permit eign power. This is not the only sovereign this Court to decide whether the identification power by which law is made, however. requirements of SB 692 “interfere to prevent the free exercise of the right of suffrage.” We 5 ¶16 The first two sections of Article 5 of the note that Ms. Gentges’ motion for summary Oklahoma Constitution reserve sovereign judgment reserves this issue as a “factual ques- power to the people to make law by a process tion.” Also, in their response to Ms. Gentges’ that is different from, and in addition to, the motion for this Court to retain this appeal, the exercise of sovereign power granted to the Leg- State Election Board and the Intervenors have islature. That process is by initiative and refer- argued that this reservation by Ms. Gentges endum. Sections 3 through 8 of Article 5 specify prevents the “the substantive constitutionality how this process is to be fulfilled. Section 3 of 6 of the Voter ID Act . . . from being reviewed for Article 5 prescribes a very different role for the the first time in this accelerated appeal.” Governor to play in this law making process than the role played by the Governor in the ¶20 In remanding this issue to the trial court, Legislature’s law making process. In particular, however, we believe it provident to provide section 3 commands that the Governor “shall guidance to the trial court in resolving this con- submit [petitions and orders for initiatives and troversy. We do so to ensure a complete record referendums] to the people” and expressly pro- is made and because the decision resolving an vides that “The veto power of the Governor alleged constitutional violation is reviewed de shall not extend to measures voted on by the novo. See Fields v. Saunders, 2012 OK 17, ¶ 1, 278 people.” P.3d 577, 579. ¶17 As previously noted, Ms. Gentges ¶21 “When considering the constitutionality acknowledges this limitation on the Gover- of an act of the legislature, all pertinent consti- nor’s veto power, but contends it should be tutional provisions must be considered togeth- interpreted to apply only after a measure has er.” Fent v. State ex rel. Office of State Finance, been approved by the people. To support this 2008 OK 2, ¶ 21, n.11, 184 P.3d 467, 476 (citing

422 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 Tate v. Logan, 1961 OK 136, ¶ 5, 362 P.2d 670, ¶26 KAUGER and COMBS (by separate 672). The free exercise protections of Article 2, writing), JJ., concur in result. § 4 and Article 3, § 5 must be considered with COMBS, J., with whom KAUGER, J., joins, the Legislature’s constitutional power to pro- concurring in result: vide laws for conducting elections and to detect fraud in such elections set forth in Arti- ¶1 I concur in the majority opinion that the cle 3, § 4 of the Oklahoma Constitution. This plaintiff in this case has standing to challenge provision expressly provides that: “The Legis- the constitutionality of the Oklahoma Voter ID lature shall prescribe the time and manner of Act. I further concur in the majority opinion in holding and conducting all elections, and enact that the Oklahoma Constitution does not such laws as may be necessary to detect and pun- require the Legislature to present a referen- ish fraud in such elections.” (emphasis added). dum, like SB 692, to the Governor for veto While the people have made it clear by consti- consideration prior to submitting the measure tutional command that they do not want the for a popular vote. civil or military power of the State to interfere ¶2 I additionally concur that the issue of the to prevent the free exercise of the right of suf- constitutionality of the Voter ID Act is not frage, the people have made it equally clear by properly before this court for review at this a coordinate constitutional command that they time. The trial court’s ruling reflects the only want the right of suffrage protected from fraud. issues addressed were the plaintiff’s lack of Any assessment of the impact of statutory law standing and that the Voter ID statute did not on the exercise of the right of suffrage must have to be presented to the Governor before it accommodate both of these policies. was submitted to a vote of the people. There is nothing in this record to reflect the trial court ¶22 Also, laws governing the right to vote ruled on the issue of the facial constitutionality must “be reasonable and not destructive to of the Voter ID Act. In truth and fact the record some constitutional right.” Swindall v. State is very clear the trial court determined only Election Board, 1934 OK 259, ¶ 0, 32 P.2d 691 two issues: 1) the plaintiff’s standing or lack (syllabus 1). One test is whether the voting law thereof; and 2) a finding that there is no consti- “was designed to protect the purity of the bal- tutional requirement that a referendum be lot and not as a tool or instrument to impair submitted to the Governor for consideration constitutional rights.” Sparks, 1964 OK 114, ¶ prior to a popular vote. 13, 392 P.2d at 714. ¶3 The majority, having determined the ¶23 This guidance in no way limits the issues plaintiff has standing, remands this case to the nor precludes the trial court from considering trial court to address all remaining issues, other law or matters that may bear on the consti- including any issue concerning the merits of tutionality of the Voter ID Act. It simply repre- the Voter ID Act. I disagree, however, with the sents the baseline scrutiny the trial court must majority’s attempt to frame the issues for the give to resolve this constitutional controversy. trial court on remand. The litigants should be allowed to try their case before the lower court ¶24 Based on the foregoing consideration, without any indication what the appellate we affirm the trial court’s ruling that the Voter court would like to be considered. Our case ID Act was validly enacted, but reverse the law is clear: in a public law controversy this trial court’s ruling that Ms. Gentges lacks court is free to change the theory presented by standing to challenge the Voter ID Act on the the parties below and followed by the trial ground that it violates the free exercise of suf- court.1 However this review must be based frage provisions in the Oklahoma Constitution. upon the record brought for review. We remand this case to the trial court to decide Ms. Gentges’ constitutional challenges to the ¶4 As this court stated in Russell v. Board of Voter ID Act and to the venue provision in 12 County Commissioners, 1997 OK 80, ¶ 10, 952 O.S.2011, § 133. P.2d 492, 497: AFFIRMED IN PART; REVERSED IN PART. [w]hen resolving a public-law controversy, the reviewing court is generally free to ¶25 COLBERT, C.J., REIF, V.C.J., WATT, grant corrective relief upon any applicable WINCHESTER, EDMONDSON, TAYLOR, legal theory dispositive of the case. Appel- and GURICH, JJ., concur. late freedom to raise and settle public-law

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 423 issues sua sponte is circumscribed not by 3. Article 2, § 4 states: Interference with right of suffrage. No power, civil or military, shall ever interfere to prevent the free exer- arguments tendered by the parties but cise of the right of suffrage by those entitled to such right. rather by the record brought for review. 4. Article 3, § 5 states: Free and equal elections — Interference by civil or military power — Privilege from arrest. (Emphasis applied.) All elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage, and ¶5 Although I agree with the majority that electors shall, in all cases, except for treason, felony, and breach of the the constitutionality of the Voter ID Act is of peace, be privileged from arrest during their attendance on elections and while going to and from the same. great public interest and any ruling of the trial 5. The first two sections in Article 5, are as follows: court concerning the Act’s constitutionality § 1. Legislature — Authority and composition — Powers reserved to people. will be reviewed by this court using a de novo The Legislative authority of the State shall be vested in a Legislature, standard without deference to the decision of consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the trial court, that review must be based on the Constitution and to enact or reject the same at the polls indepen- the record. Here we have no decision by the dent of the Legislature, and also reserve power at their own option to trial court on this issue. The trial court order is approve or reject at the polls any act of the Legislature. § 2. Designation and definition of reserved powers — Determination silent as to the constitutionality of the Voter ID of percentages. Act. The Attorney General’s position assailing The first power reserved by the people is the initiative, and eight per centum of the legal voters shall have the right to propose any legisla- the deviation of our summary judgment proce- tive measure, and fifteen per centum of the legal voters shall have the dure is well taken. There are only two issues right to propose amendments to the Constitution by petition, and every such petition shall include the full text of the measure so pro- before us at this time. posed. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the ¶6 Addressing the facial constitutionality of public peace, health, or safety), either by petition signed by five per the Voter ID Act without a record, evidentiary centum of the legal voters or by the Legislature as other bills are enacted. The ratio and per centum of legal voters hereinbefore stated materials, or a final order is a precedent we shall be based upon the total number of votes cast at the last general should not set. The litigants should be allowed election for the Office of Governor. 6. Article 5, § 3 states: Petitions — Veto power — Elections — Time to fully litigate their respective positions with- of taking effect — Style of bills — Duty of legislature out prior indication from this court as to what Referendum petitions shall be filed with the Secretary of State not issues we feel are important to the discussion. more than ninety (90) days after the final adjournment of the session of the Legislature which passed the bill on which the referendum is To do otherwise, is to issue an advisory opin- demanded. The veto power of the Governor shall not extend to mea- ion and attempt to limit or at the least empha- sures voted on by the people. All elections on measures referred to the people of the state shall be had at the next election held throughout the size certain constitutional issues in the trial state, except when the Legislature or the Governor shall order a special court. I would let the parties argue their respec- election for the express purpose of making such reference. Any mea- sure referred to the people by the initiative or referendum shall take tive positions and develop their own record effect and be in force when it shall have been approved by a majority without any specific direction as to issues by of the votes cast thereon and not otherwise. this court. The style of all bills shall be: “Be it Enacted By the People of the State of Oklahoma.” Petitions and orders for the initiative and for the referendum shall be REIF, V.C.J.: filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people. The Legislature shall 1. SB 692 was submitted to a vote of the people as State Question make suitable provisions for carrying into effect the provisions of this 746, Legislative Referendum 347. This measure was approved by a article. vote of the people November 2, 2010. Laws 2009, c.31, §§ 1-9. It is 7. U.S.C.A. Const. Art. IV § 4 states: Section 4. Republican Govern- codified as 26 O.S.2011, § 7-114. ment 2. Article 6, § 11 states: Approval or veto of bills — Passage over Section 4. The United States shall guarantee to every State in this veto — Failure to return bill. Union a Republican Form of Government, and shall protect each of Every bill which shall have passed the Senate and House of Represen- them against Invasion; and on Application of the Legislature, or of the tatives, and every resolution requiring the assent of both branches of Executive (when the Legislature cannot be convened) against domestic the Legislature, shall, before it becomes a law, be presented to the Violence. Governor; if he approve, he shall sign it; if not, he shall return it with his objections to the house in which it shall have originated, who shall COMBS, J., with whom KAUGER, J., joins, enter the objections at large in the Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected to that concurring in result: house shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall like- 1. Jackson v. Oklahoma Memorial Hosp., 1995 OK 112, ¶ 5 , 909 P.2d wise be reconsidered; and, if approved by two-thirds of the members 765 , 768; North Side State Bank v. Board of County Comm’rs of Tulsa elected to that house, it shall become a law, notwithstanding the objec- County, 1994 OK 34 , 894 P.2d 1046 , 1050 n. 8; Schulte Oil Co., Inc. v. tions of the Governor. In all such cases, the vote in both houses shall be Oklahoma Tax Com’n, 1994 OK 103 , 882 P.2d 65 , 69 n. 8; Strelecki v. determined by yeas and nays, and the names of the members voting Oklahoma Tax Com’n, 1993 OK 122 , 872 P.2d 910 , 920 n. 66; Simpson v. shall be entered on the Journal of each house respectively. If any bill or Dixon, 1993 OK 71 , 853 P.2d 176 , 187 n. 55; McNeely, Matter of, 1987 OK resolution shall not be returned by the Governor within five days 19, ¶ 4 , 734 P.2d 1294 , 1296; Reynolds v. Special Indem. Fund, 1986 OK (Sundays excepted) after it shall have been presented to him, the same 64, ¶ 14, 725 P.2d 1265 , 1270; Burdick v. Independent Sch. Dist. No. 52 of shall be a law in like manner as if he had signed it, unless the Legisla- Oklahoma County, 1985 OK 49 , 702 P.2d 48 , 54 n. 10; McCracken v. City ture shall, by their adjournment, prevent its return, in which case it of Lawton, 1982 OK 63 , 648 P.2d 18 , 21 n. 11; Application of Goodwin, shall not become a law without the approval of the Governor. No bill 1979 OK 106, ¶ 2, 597 P.2d 762 , 764; Special Indemnity Fund v. Reynolds, shall become a law after the final adjournment of the Legislature, 1948 OK 14, ¶ 6, 188 P.2d 841 , 842. unless approved by the Governor within fifteen days after such adjournment.

424 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014

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Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 425 Court of Civil Appeals Opinions

2014 OK CIV APP 11 ¶1 Defendant, Robin A. Polin, appeals the trial court’s Final Order of Protection finding GREGORY M. EGLESTON, derivatively on plaintiff, Lynn Null, was a victim of stalking as behalf of CHESAPEAKE ENERGY defined in Title 22 O.S.2011, § 60.1(2) and grant- CORPORATION, Plaintiff/Appellant, vs. ing an Order of Protection against Polin for AUBREY K. McCLENDON, MERRILL A. three years. MILLER, V. BURNS HARGIS, LOUIS ALLEN SIMPSON, ARCHIE W. DUNHAM, BACKGROUND BOB G. ALEXANDER, VINCENT J. INTRIERI, R. BRAD MARTIN, FREDERIC ¶2 Null is employed as an independent liv- M. POSES, CHARLES T. MAXWELL, ing coordinator for Tulsa Source for Hearing- RICHARD K. DAVIDSON, KATHLEEN Loss and Access (TSHA), a non-profit agency M. EISBRENNER, DONALD L. NICKLES that provides services to the deaf and hard-of- and FRANK A. KEATING, hearing communities. She is also the liaison Defendants/Appellees, and CHESAPEAKE between TSHA and the National Association of ENERGY CORPORATION, Nominal the Deaf (NAD), Oklahoma Association of the Defendant/Appellee. Deaf (OAD), and Tulsa Association of the Deaf (TAD). Null has provided services to Polin Case No. 111,833. February 13, 2014 through TSHA’s independent living program. CORRECTION ORDER ¶3 On February 2, 2012, Null filed a Petition for Protective Order alleging claims of harass- The Opinion in the above styled cause, filed ment pursuant to Title 22 O.S.2011, § 60.1(3) on December 19, 2013, is hereby corrected in and stalking per Title 22 O.S.2011, § 60.1(2). In the following particular: her Petition, Null alleged that Polin had repeat- The votes on page 13 shall read as follows: edly harassed Null by making at least six com- plaints to Null’s supervisor, Rebecca Renee BELL, Acting P.J., and MITCHELL, J. (sit- Ryan, in an attempt to have Null fired. Ryan ting by designation), concur. investigated each of these complaints and In all other respects, the Opinion shall remain found them to be baseless. Ryan told Polin that unaffected by this correction order. she investigated the complaints and found the complaints did not warrant firing Null. Polin DONE BY ORDER OF THE COURT OF then contacted other agencies dealing with the CIVIL APPEALS this 12th day of February, deaf community, OAD and NAD, to pressure 2014. Ryan into firing Null. 2014 OK CIV APP 12 ¶4 In addition, Null asserted that, in January LYNN Z. NULL, Plaintiff/Appellee, vs. 2012, Ryan and Null each received a letter from ROBIN A. POLIN, Defendant/Appellant. Eric Smith, President of TAD, requesting an investigation of Null and stating that Null’s Case No. 110,468. August 20, 2013 conduct was unethical and inappropriate and APPEAL FROM THE DISTRICT COURT OF that Null was harassing Smith. After investi- TULSA COUNTY, OKLAHOMA gating these letters, Ryan learned that Polin wrote the letters at Smith’s request, but insert- HONORABLE CHARLES R. HOGSHEAD, ed the statements concerning Null without TRIAL JUDGE Smith’s knowledge. AFFIRMED ¶5 Null stated that she is “afraid for my Leslie K. Brier, BRIER LAW FIRM, PLLC, Tulsa, safety because people who disagree with Ms. Oklahoma, for Plaintiff/Appellee Polin end up getting hurt and since I still have my job, I believe she will try to hurt me too.” Donald B. Bolt, III, BOLT LAW FIRM, Tulsa, Null further stated “I have been the target of Oklahoma, for Defendant/Appellant her latest harassment and have seen firsthand KEITH RAPP, JUDGE: her anger and aggression towards anyone who does not accept her position, I am afraid for my

426 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 safety.” Based on these allegations, Null sought ¶11 Finally, Ryan testified that she is con- a protective order against Polin. cerned about Null’s safety because Polin has become more vocally aggressive toward Null, ¶6 In addition, Null filed a police report with and that Polin is explosive and fixated on the Tulsa Police Department on February 2, Null. 2012, before filing the Petition for Protective Order in district court, alleging Polin had ¶12 Eric Smith, President of TAD, also testi- harassed Null over a period of time, the most fied on Null’s behalf. Smith testified that he recent incident being January 10, 2012.1 did not ask anyone, including Polin, to draft letters containing content concerning Null. He ¶7 The trial court entered an Emergency stated that the letters were supposed to discuss Order of Protection against Polin on February certain by-laws and that Polin wrote the let- 2, 2012, and set a hearing on a final order of ters. protection. The trial court initially ordered Polin not to come within three hundred yards ¶13 Defendant Polin testified that she had of Null and not to have any contact with Null not been stalking or harassing Null. ¶8 The trial court conducted a hearing on a ¶14 After hearing evidence, the trial court final protective order on February 16, 2012. At found that Polin’s actions constituted “mali- the hearing, Null testified regarding Polin’s cious harassment, which by definition under numerous attempts to ruin Null’s reputation in the statute is officially stalking.” The trial court the deaf community and to have her fired from stated: her employment at TSHA. Null testified she The Court finds that that type of behavior felt threatened by Polin because Polin becomes where you’re not only filing your own com- “very angry, very aggressive, and it tends to plaints, but drafting something that would 2 just get worse.” Null stated Polin is “very in purport to be an official complaint from your face whenever she becomes upset,” and someone else just to have them sign it has 3 has the ability to hurt others. Null stated that gone beyond what this Court would be con- she no longer feels safe and feels threatened. sidered acceptable in a commercial or busi- 4 ¶9 Null’s supervisor at TSHA, Rebecca Ryan, ness like complaint and into a vendetta. also testified at the hearing on the protective ¶15 The trial court found that Null’s evi- order. Ryan testified she is the executive direc- dence supported her claim and issued a Final tor of TSHA and is responsible for oversight of Order of Protection against Polin for three all services related to the agency. Ryan testified years. The court ordered Polin to keep a dis- concerning the numerous unfounded com- tance of ten feet from Null plaints that Polin asserted against Null in an attempt to have her fired. Ryan determined ¶16 Polin appeals the trial court’s Final Order that Polin would no longer interact with Null, of Protection. but would deal with Ryan. However, Polin STANDARD OF REVIEW continued to bring non-issues concerning Null to Ryan. Ryan testified that Polin asked Ryan to ¶17 This Court is presented with a question fire Null every time that Ryan saw Polin. She of statutory construction, which presents a also testified that Polin escalated her com- question of law. Weeks v. Cessna Aircraft Co., plaints to other agencies in the deaf communi- 1994 OK CIV APP 171, ¶ 5, 895 P.2d 731, 733 ty. (approved for publication by the Oklahoma Supreme Court). This Court’s review of the ¶10 In addition, Ryan testified she received trial court’s legal rulings is plenary, indepen- two certified letters from Eric Smith, the TAD dent and non-deferential. Kluver v. Weatherford President. The letters stated that Null was Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, harassing Smith and had acted unethically. 1084 (citing Salve Regina College v. Russell, 499 Ryan stated she spoke with Smith about the U.S. 225, 231, 111 S. Ct. 1217, 1221, 113 L.Ed.2d letters and he told her that he did not know 190 (1991)). If a statute is unambiguous and its Polin had inserted the information concerning meaning clear and there is no reason to apply Null in the letters and he was very upset. Smith rules of statutory construction, this Court will told Ryan he did not have any issues with Null. apply the meaning expressed by the language Ryan testified that Polin admitted she wrote used. TRW/Reda Pump v. Brewington, 1992 OK the letters. 31, ¶ 5, 829 P.2d 15, 20.

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 427 ¶18 This Court reviews the trial court’s issu- Section 60.1(3) defines harassment as ance of a protective order under the Protection follows: from Domestic Abuse Act, 22 O.S.2011, §§ 3. “Harassment” means a knowing and 60-60.18, under the abuse of discretion stan- willful course or pattern of conduct by a dard. Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d family or household member or an indi- 550, 554. “Under an abuse of discretion stan- vidual who is or has been involved in a dard, the appellate court examines the evi- dating relationship with the person, direct- dence in the record and reverses only if the trial ed at a specific person which seriously court’s decision is clearly against the evidence alarms or annoys the person, and which or is contrary to a governing principle of law. serves no legitimate purpose. The course of To reverse under an abuse of discretion stan- conduct must be such as would cause a dard, an appellate court must find the trial reasonable person to suffer substantial court’s conclusions and judgment were clearly emotional distress, and must actually cause erroneous, against reason and evidence.” Id. substantial distress to the person. “Harass- (citations omitted). ment” shall include, but not be limited to, ANALYSIS harassing or obscene telephone calls in vio- lation of Section 1172 of Title 21 of the ¶19 Polin first argues that the trial court Oklahoma Statutes and fear of death or erred in finding Null was a victim of stalking bodily injury. and issuing a Final Order of Protection against ¶21 The Protection from Domestic Abuse Act Polin. Polin contends that, under the Title 22 (Act) provides immediate relief for victims of O.S.2011, § 60.1(2) definition of stalking, the domestic abuse, stalking, harassment, or rape. trial court must define harassment as applying Curry v. Streater, 2009 OK 5 at ¶ 9, 213 P.3d at to only family or household members or those 554. “A careful balance must be achieved for a in a dating relationship as provided in the statute addressing stalking to be effective. harassment definition of Section 60.1(3). Polin Stalking statutes must be defined as broadly as contends she is not in one of the statutorily- possible to maximize victim protection, but defined relationships with Null and, therefore, narrowly enough to prevent serious abuse.” the trial court erred in finding Polin “mali- State v. Saunders, 1994 OK CR 76, ¶ 7, 886 P.2d ciously harassed” Null, which constituted 496, 497 (interpreting the criminal counterpart “stalking” pursuant to Section 60.1(2). to the Act). ¶20 Null is a victim of stalking because Title ¶22 Polin asks this Court to narrowly con- 22 O.S.2011, § 60.1(2) defines stalking as fol- strue the definition of “stalking” under Section lows: 60.1(2) to provide that a victim of willful, mali- cious, and repeated harassment under the 2. “Stalking” means the willful, mali- stalking definition is limited to a family or cious, and repeated following or harass- household member or a person in a dating ment of a person by an adult, emancipated relationship with the defendant, as required by minor, or minor thirteen (13) years of age the Section 60.1(3) harassment definition. or older, in a manner that would cause a Under Polin’s interpretation of the stalking reasonable person to feel frightened, intim- definition, a victim that was being harassed, idated, threatened, harassed, or molested but not necessarily followed, as in the present and actually causes the person being fol- case, would not have a recourse against the lowed or harassed to feel terrorized, fright- person harassing him or her unless they were ened, intimidated, threatened, harassed or in one of the statutorily-defined relationships. molested. Stalking also means a course of conduct composed of a series of two or ¶23 At first blush, it appears that Polin’s more separate acts over a period of time, argument has merit. However, a closer inspec- however short, evidencing a continuity of tion of the statute reveals otherwise. purpose or unconsented contact with a ¶24 Under the Section 60.1(2) stalking defini- person that is initiated or continued with- tion, the harassment that is referred to is the out the consent of the individual or in dis- “willful, malicious, and repeated . . . harass- regard of the expressed desire of the indi- ment of a person by an adult, emancipated vidual that the contact be avoided or dis- minor, or minor thirteen (13) years of age or continued. older.” In comparison, the harassment as

428 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 defined in Section 60.1(3) is a “knowing and interpretation of a statute which would lead to willful course or pattern of conduct by a family an absurd result provided it does not violate or household member or an individual who is the legislative intent. Id. or has been involved in a dating relationship with the person.” The Section 60.1(2) harass- ¶29 The intent of the Act is to provide protec- ment requires a “malicious” element, while the tion to victims of offensive conduct under the Section 60.1(3) harassment does not have that Act. In 2010, the Legislature amended the defi- requirement. nition of “stalking” under the Act to include malicious harassment.5 If the Legislature had ¶25 In addition, while both the stalking and intended to limit the availability of the stalking harassment definitions have a subjective and remedy to only those in a statutorily-defined an objective component, the standards differ. class, it could have expressly done so. The Under stalking, the questioned action must express language of the Act reflects the Legisla- “cause a reasonable person to feel frightened, ture did not intend to limit protection under intimidated, threatened, harassed, or molest- the Act to such a narrow class. ed” (objective standard) and actually cause the victim to feel “terrorized, frightened, intimi- ¶30 Here, this Court finds that the word dated, threatened, harassed or molested” (sub- “harassment” used in the “stalking” definition jective standard). In contrast, under the harass- is not to be confined to the definition set forth ment definition, the course of conduct must in Section 60.1(3). To hold otherwise would cause a “reasonable person to suffer substantial violate the intent of the Act to provide protec- emotional distress” (objective standard) and tion to a broad class of victims of domestic “must actually cause substantial distress to the violence. Thus, this Court finds Polin’s argu- person” (subjective standard). Thus, the harass- ment that the trial court erred in not applying ment definition requires a more heightened the harassment definition of Section 60.1(3) in effect than the stalking definition. interpreting the Section 60.1(2) definition of stalking to be without merit. ¶26 Furthermore, the “stalking” definition and the “harassment” definition differ on ¶31 Polin next argues that the trial court’s defining the individual who takes the offensive decision to issue a protective order based on action. Under the stalking statute, the “willful, stalking was against the evidence and an abuse malicious and repeated harassment” must be of discretion. This Court disagrees. “by an adult, emancipated minor, or minor ¶32 Null presented evidence that Polin con- thirteen (13) years of age or older.” Under the tinually contacted Null and her supervisor to harassment statute, the offensive conduct must complain about Null’s conduct and to demand be taken “by a family or household member or that Null be fired. In addition, Polin fraudu- an individual who is or has been involved in a lently drafted letters for Mr. Smith’s signature dating relationship with the person.” and inserted information concerning Null and ¶27 Thus, a careful reading of the plain lan- her alleged unethical actions that Mr. Smith guage of the statute distinguishes malicious had not requested be included in the letter. harassment under Section 60.1(2), as correctly ¶33 “Where there is conflicting evidence on found by the decision of the trial court in the an issue of fact, we defer to the judgment of the present case, from harassment as defined in trial court who is in the best position to observe Section 60.1(3). the behavior and demeanor of the witnesses ¶28 “The primary goal of statutory construc- and to gauge their credibility.” Triplett ex rel. tion is to ascertain and follow the intention of K.T. v. Miller, 2008 OK CIV APP 27, ¶ 3, 179 the Legislature.” TRW/Reda Pump v. Brewing- P.3d 1285, 1287. After considering the evidence ton, 1992 OK 31 at ¶ 5, 829 P.2d at 20. If a statute presented at the hearing, this Court finds the is unambiguous and there is no reason to apply trial court did not abuse its discretion in issu- rules of statutory construction, this Court will ing a Final Order of Protection against Polin accord the meaning expressed by the clear lan- based on stalking, Title 22 O.S.2011, § 60.1(2). Id guage of the statute. . Furthermore, this CONCLUSION Court will presume that the Legislature has not done a vain act in drafting legislation. Mar- ¶34 Based on the foregoing, this Court finds quette v. Marquette, 1984 OK CIV APP 25, ¶ 8, the trial court did not err in issuing a Final 686 P.2d 990, 993. This Court will avoid an Order of Protection against Polin and in favor

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 429 of Null. The trial court’s Final Order of Protec- b. approaching or confronting that indi- tion is affirmed. vidual in a public place or on private prop- erty; ¶35 AFFIRMED. c. appearing at the workplace or residence THORNBRUGH, P.J., concurs, and GOOD- of that individual; MAN, J., concurs specially. d. entering onto or remaining on property GOODMAN, J., specially concurring: owned, leased, or occupied by that indi- ¶1 I concur, but wish to write separately to vidual; emphasize the larger problem alluded to in the e. contacting that individual by telephone; majority opinion: that the Protection from Domestic Abuse Act, 22 O.S.2011, §§ 1 through f. sending mail or electronic communica- 19 (Act), reflects a hodgepodge attempt by the tions to that individual; or Legislature to address a growing problem. This g. placing an object on, or delivering an author is of the opinion that the Act has been object to, property owned, leased or occu- repeatedly amended to address problems cre- pied by that individual. ated by the Act itself.1 In the case under review, much is made of the defined-term ¶3 Upon my review of the record and appli- “harassment” as a distinct basis for a protec- cable law, I find sufficient evidence to support tive order, which by definition can only be a finding of stalking under § 60.1(2)’s “alter- sought by a victim against a family or house- nate” definition. I therefore concur with the hold member or one involved in a dating majority opinion. relationship. See 22 O.S.2011, § 60.1(3). The Legislature subsequently uses the term KEITH RAPP, JUDGE:

“harassment” to define the term “stalking,” 1. Title 60 O.S.2011, § 60.2(A)(1) requires a person seeking a protec- which carries with it no re-quirement for a tive order based on stalking, who is not a family or household member victim to prove a family, household, or dating or in a dating relationship with the defendant, to file a complaint with law enforcement prior to filing a petition for an order of protection relationship. See 22 O.S.2011, § 60.1(2). Thus, with the district court. unnecessary ambiguity is introduced into an 2. Transcript of Protective Order Hearing, February 16, 2012, p. 49. 3. Transcript of Protective Order Hearing, February 16, 2012, p. 48. otherwise straightforward statute, requiring 4. Transcript, Protective Order Hearing, February 16, 2012, p. 59. further analysis as to whether or not the plain- 5. Section 60.1(2) previously defined “stalking” as follows: “Stalking” means the willful, malicious, and repeated fol- tiff was entitled to relief under the Act for lowing of a person by an adult, emancipated minor, or minor stalking because there was no proof of these thirteen (13) years of age or older, with the intent of placing the aforementioned relationships. person in reasonable fear of death or great bodily injury. ¶2 Nevertheless, I agree the trial court was GOODMAN, J., specially concurring: correct in its conclusions. Title 22 O.S.2011, § 1. For instance, this Court issued Spielmann v. Hayes, 2000 OK CIV 60.1(2) provides two definitions of “stalking.” APP 44, 3 P.3d 711, in which we held a teacher had standing under the The first was addressed in the majority opinion. Act to obtain a protective order against a student for harassment. That opinion was issued at a time in which the Act did not require a family “Stalking” is further defined in § 60.1(2) as: or personal relationship to exist between the parties. Because of amendments to the Act, were the same facts in Spielmann before this []Stalking also means a course of conduct Court today, the teacher would have no standing to prosecute a claim composed of a series of two or more sepa- of harassment, though she might have a claim for stalking. rate acts over a period of time, however 2014 OK CIV APP 13 short, evidencing a continuity of purpose or unconsented contact with a person that ANDREW R. BRIGGEMAN, Plaintiff/ is initiated or continued without the con- Appellee, vs. CANDACE L. HARGROVE, sent of the individual or in disregard of the Defendant/Appellant. expressed desire of the individual that the Case No. 110,552. August 16, 2013 contact be avoided or discontinued. Uncon- sented contact or course of conduct APPEAL FROM THE DISTRICT COURT OF includes, but is not limited to: TULSA COUNTY, OKLAHOMA a. following or appearing within the sight HONORABLE WILMA PALMER, JUDGE of that individual; REVERSED AND REMANDED James R. Gotwals, Benjamin Aycock, Mary L. Gutierrez, JAMES R. GOTWALS AND ASSO-

430 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 CIATES, INC., Tulsa, Oklahoma, for Plaintiff/ to substantiate his claim of emergency, and Appellee, at the most raised a question as to the rela- tive merit of either himself or Hargrove as Leslie K. Brier, BRIER LAW FIRM, P.L.L.C., the primary custodial parent. Such litiga- Tulsa, Oklahoma, and Robert V. Henson, HEN- tion would be proper before a court in SON LAW FIRM, P.L.L.C., Tulsa, Oklahoma, Montgomery County, Ohio, the home for Defendant/Appellant. county and state of the child, and not ROBERT D. BELL, JUDGE: before a court of this state. Joliff v. Joliff, 1992 OK 38, 829 P.2d 34. The District Court ¶1 In this post-paternity, custody modifica- of Tulsa County lacks jurisdiction of this tion proceeding, Defendant/Appellant, Can- matter and the court is directed to return dace L. Hargrove (Mother), appeals from the the child to mother. trial court’s order dated February 29, 2012, which found the trial court lacked jurisdiction ¶3 Thereafter, Mother filed an application in to consider Mother’s application for attorneys the Tulsa County proceeding requesting attor- fees and costs. The trial court held the Okla- neys fees, costs and expenses. She cited 10 O.S. homa Supreme Court’s order entered in Case 2011 §7700-636 as statutory authority for her No. 109,239 prohibits Mother from bringing application. This statute permits the trial court this action against Plaintiff/Appellee, Andrew to assess fees and costs in a proceeding to adju- R. Briggeman (Father), in Tulsa County District dicate a man’s parentage. Mother also cited City Court. We reverse the dismissal order and National Bank v. Owens, 1977 OK 86, 565 P.2d 4, as remand this matter to the trial court to deter- authority for her claim that the trial court had mine whether under the facts of this case, an inherent equitable power to award attorney fees assessment of attorney fees against Father is and costs on the basis of Father’s alleged oppres- proper. sive behavior in filing the emergency custody ¶2 Mother is an Ohio resident. Mother application. We note, however, that Owens was incurred attorney fees, costs and expenses superseded by 23 O.S. Supp.1986 §103. while defending herself against an emergency ¶4 Father filed a motion to dismiss on the custody and modification of custody applica- grounds that Oklahoma lacked jurisdiction to tion filed by Father in Tulsa County, Oklahoma. hear the matter. The trial court ruled pursuant In April 2010, while Father was exercising visi- to the Oklahoma Supreme Court’s Order in tation with the parties’ minor child in Oklaho- Case No. 109,239 it lacked jurisdiction over this ma, Father filed an application for emergency matter, and granted Father’s motion to dis- custody and modification of custody in Tulsa miss. Mother appeals from the trial court’s County. Father refused to return the child to order dismissing her application for attorneys Mother in Ohio. Mother objected to the trial fees, costs and expenses. court’s assumption of jurisdiction. The emer- gency show cause hearing continued over a ¶5 This matter stands submitted without period of many months without resolution. On appellate briefs on the trial court record. See Rule March 3, 2011, Mother filed an application with 4(m), Rules for District Courts, 12 O.S. 2011 Ch. 2, the Oklahoma Supreme Court, in Appellate App., and Rule 1.36, Oklahoma Supreme Court Case Number 109,239, requesting the Court to Rules, 12 O.S. 2011 Ch. 15, App. 1. In reviewing assume original jurisdiction and consider her the trial court’s disposition by dismissal, the petition for writ of prohibition and mandamus. Court examines the issues de novo. Miller v. On March 28, 2011, the Oklahoma Supreme Miller, 1998 OK 24, ¶15, 956 P.2d 887, 894. Court entered an Order which stated: ¶6 On appeal, Mother contends the trial Original jurisdiction is assumed in that court erred in failing to apply the appropriate cause now pending before the District laws pertaining to subject matter jurisdiction Court in Tulsa County, in which the real and in concluding that the Supreme Court’s party in interest Andrew R. Briggeman is Order in Case No. 109,239 prohibited Mother the petitioner, and Candace Hargrove is from filing her application for attorneys fees, the respondent, Cause No. FD-2004-4877. costs and expenses against Father in Oklaho- The application of Candace Hargrove for a ma. We hold notwithstanding the entry of the writ of prohibition is granted. The Court writ of prohibition, the trial court had the notes that at the hearing on April 19, 2010, inherent equitable supervisory power to assess Briggeman came forward with no evidence Father and award Mother attorney fees in the

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 431 event it finds Father’s conduct was oppressive date in question, the crew under Claimant’s or abusive. Winters By & Through Winters v. City supervision worked on the roof of a two story of Oklahoma City, 1987 OK 63, ¶¶6-10, 740 P.2d structure, and the crew had ascended using 724, 725-26. The trial court’s order dismissing ladders. Instead of using the ladders in place to Mother’s application for attorneys fees, costs reach the second story roof, Claimant directed and expenses is therefore reversed and this that he be lifted to the second story roof by matter is remanded to the trial court to deter- means of a materials lift, akin to a fork lift, mine whether under the facts of this case, such known as a “sky trac.” As he stepped from the an assessment of attorney fees against Father is lift to the roof, his foot slipped, Claimant fell, proper. and sustained significant injury. Claimant admitted that the lift was not intended to lift ¶7 Father filed a special entry of appearance workers, that he knew such a use was danger- and motion to dismiss in the instant appeal. ous, contrary to safety rules and Employer’s Consideration of Father’s motion to dismiss instructions, but averred that, because the lad- was deferred to the decisional stage. Because ders were not rated to bear his 350-pound we reverse and remand the trial court’s dis- weight, the lift was more appropriate. missal of Mother’s application, Father’s motion to dismiss the appeal is denied. ¶3 Employer denied liability for the claim. Employer asserted Claimant’s injury was occa- ¶8 REVERSED AND REMANDED. sioned by Claimant’s intentional disregard of BUETTNER, P.J., and JOPLIN, C.J., concur. the known dangers, safety rules and specific instructions prohibiting use of the lift by work- 2014 OK CIV APP 14 ers, and constituted an “injury occasioned by RENFRO ELECTRIC and NATIONAL the willful intention of the injured employee to AMERICAN INSURANCE COMPANY, bring about injury to himself,” barred by the Petitioners, vs. SCOTT SEXTON and THE express provisions of 85 O.S. §312(1). WORKERS’ COMPENSATION COURT, ¶4 On consideration of the testimony of Respondents. Claimant and other witnesses, the trial court Case No. 111,711. January 10, 2014 held that, although Claimant “used bad judg- ment, ignored instructions from his employer PROCEEDING TO REVIEW AN ORDER OF thereby causing injury to himself . . . [,] there is A THREE-JUDGE PANEL OF THE not evidence [C]laimant intended to harm him- WORKERS’ COMPENSATION COURT self.” The trial court thus held that “his injury SUSTAINED did arise out of and in the course of his employ- ment,” and allowed benefits for temporary D. Wade Christensen, Christensen & Associ- total disability. Employer appealed, and a ates, P.L.L.C., Oklahoma City, Oklahoma, for unanimous three-judge panel affirmed the trial Petitioners, court’s order as neither contrary to law, nor Joe B. Lucas, Oklahoma City, Oklahoma, and R. contrary to the clear weight of the evidence. Jay McAtee, Tulsa, Oklahoma, for Respon- ¶5 Employer now seeks review in this Court. dent. Employer again argues that Claimant’s injury, Larry Joplin, Presiding Judge: occasioned by his admitted disregard of the known dangers, the safety rules and Employ- ¶1 Petitioners Renfro Electric and National er’s specific instructions proscribing use of the American Insurance Company (collectively, lift for workers, constitutes “an injury occa- Employer) seek review of an order of a three- sioned by the willful intention of the injured judge panel affirming the trial court’s award of employee to bring about injury to himself,” benefits to Respondent Scott Sexton (Claim- and as such, the claim was barred by the ant). In this review proceeding, Employer chal- express provisions of §312(1). lenges the award as contrary to the express terms of 85 O.S. §312(1), and contrary to the ¶6 The law in effect at the time of the injury controls both the award of benefits and appel- clear weight of the evidence. late review. Williams Companies, Inc. v. Dunkel- ¶2 Claimant worked for Employer and god, 2012 OK 96, ¶¶14, 18, 295 P.3d 1107, 1111, served as a Field Superintendent or Lead Jour- 1113. On review of the lower court’s interpreta- neyman on a crew of other employees. On the tion and application of the law in effect at the

432 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 time of the injury, we examine the lower court’s forming the work does not justify denying the legal rulings de novo, without deference to the employee compensation where the instructions lower court’s determination. See, e.g., Mays were given for the safety of the employee.” Okla- Plus, Inc. v. Ennis, 2006 OK CIV APP 59, ¶6, 135 homa Ry. Co. v. Cannon, 1946 OK 354, ¶9, 176 P.2d P.3d 839, 841. (Citation omitted.) On issues of 482, 484. (Citation omitted.) And, even if the fact, we apply the standard of review in effect injury results from the employee’s negligent or at the time of the injury, and the law in effect at dangerous failure to follow specific safety rules, the time of Claimant’s injury dictates that we regulations or procedures, where the uncontro- affirm the decision of the Workers’ Compensa- verted testimony shows the claimant had no tion Court unless against the clear weight of intention of injuring himself, the claim is prop- the evidence. Dunkelgod, 2012 OK 96, ¶18, 295 erly allowed: P.3d at 1113; 85 O.S. Supp. 2011 §340(D). In the matter before us, there is no con- ¶7 Since at least 1915, Oklahoma workers’ flict in the evidence. Certainly the claimant compensation law has absolved an employer intended to insert his arm into the access from liability for an injury to an employee door without locking and tagging out the “where the injury is occasioned by the wilful nearby valve. He did so with no intention intention of the injured employee to bring whatsoever of coming into contact with the about injury of himself or of another, or where valve. The claimant’s disregard for his own the injury results directly from the willful fail- safety was negligent, as well as dangerous. ure of the injured employee to use a guard or It was not, however, willful as the Oklahoma protection against accident furnished for his Supreme Court has defined the term in the use . . . , or results directly from the intoxication context of the Workers’ Compensation Act. . of the injured employee while on duty.” Laws . . “Contributory negligence and willful fail- 1915, c. 246, art. 2, sec. 1. Oklahoma workers’ ure to use a safety appliance must not be compensation law has ever since consistently confused. The mere voluntary failure to use so held. See, e.g., 85 O.S. 1981 §11; 85 O.S. 2011 the same would constitute contributory neg- §312(1). ligence and to hold that such failure in itself barred relief would, in effect, preserve a ¶8 Nevertheless, we find few “willful self- defense abrogated by the act.” Wick, [1917 injury” cases. Under the willful failure to use a OK 607, ¶19], 169 P. at 1090. guard provision, the Oklahoma Supreme Court early recognized many different meanings of Ashley v. Monsanto, 2000 OK CIV APP 43, ¶12, the word, “willful,” but noted at least one 4 P.3d 48, 51. meaning of “[t]he word ‘willful’ as applied to ¶10 The question of the occurrence of a “will- the conduct of the injured person signifies ful” injury constitutes one of fact. Ashley, 2000 moral blame, and if there is no moral blame, OK CIV APP 43, ¶11, 4 P.3d at 50; Wick, 1917 the case would not come within the scope of OK 607, ¶¶0(4), 18, 169 P. at 1087, 1088. As we the statutory exception.” Wick v. Gunn, 1917 have previously noted, a determination of fact OK 607, ¶9, 169 P. 1087, 1089. (Citations omit- by the Workers’ Compensation Court must ted.) The Supreme Court also recognized there stand unless against the clear weight of the was no bright-line rule to follow: “’It is not the evidence. province of the court to lay down that the breach of a rule is prima facie evidence of seri- ¶11 In the present case, the Claimant admit- ous and willful misconduct.’” Wick, 1917 OK ted that the lift was not intended to lift work- 607, ¶11, 169 P. at 1089. (Citation omitted.) ers, and that he knew such a use was danger- ous, contrary to safety rules and Employer’s ¶9 Consistent with this approach, the instructions. However, while the Claimant’s Supreme Court later held that “[t]he willful disregard for his own safety may have been failure contemplated carries with it the idea of “negligent, as well as dangerous,” there is premeditation, obstinacy, and intentional absolutely no evidence Claimant, in using the wrongdoing,” but the “mere voluntary and lift to reach the second story of the building, intentional failure of a workman to use [a] safety “willfully” intended to injure himself as that appliance does not necessarily render the omis- term has been defined. Ashley, 2000 OK CIV sion willful.” Gregory v. Oklahoma Operating Co., APP 43, ¶12, 4 P.3d at 51. 1929 OK 477, ¶0(2), 282 P. 139. Indeed, “the fact that an employee violates the instructions of the ¶12 We therefore hold the order of the Work- employer with reference to the manner of per- ers’ Compensation Court is neither contrary to

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 433 the express terms of §312(1), nor contrary to the clear weight of the evidence. The order of the three-judge panel is therefore SUSTAINED. The law firm of HETHERINGTON, V.C.J., and BUETTNER, J., E. TERRILL CORLEY & ASSOCIATES concur. is pleased to announce that attorney SCOTT ALLEN

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434 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 Disposition of Cases Other Than by Published Opinion

COURT OF CRIMINAL APPEALS Honorable Page P. Morgan, Municipal Judge, Tuesday, February 4, 2014 sentenced Easley to six (6) months. From this judgment and sentence, Easley appeals. Appel- RE-2012-0601 — Appellant, Danyale Lamont lant’s misdemeanor Judgment and Sentence is McCollough, pled guilty on September 13, 2006, in Oklahoma County District Court Case AFFIRMED. Opinion by: Smith, V.P.J.; Lews, No. CF-2004-4030 to Possession of a Firearm, P.J., concur; Lumpkin, J., concur in result; C. after former felony conviction, and in Case No. Johnson, J., concur; A. Johnson, J., concur. CF-2004-5039 to Counts 1 and 3 — Assault and Wednesday, February 5, 2014 Battery Upon a Detention Officer, after former felony conviction, and Count 2 — Malicious F-2013-6 — Jeremy Craig Lyday, Appellant, Injury and Destruction of Property. He was was tried by jury for the crimes of Count 1 - sentenced to eight years, suspended except as Rape in the First Degree and Counts II and III - to the first two months with credit for all time Forcible Sodomy in Case No. CF-2011-918 in the served, and with rules and conditions of pro- District Court of Cleveland County. The jury bation, in Case No. CF-2004-4030, and to eight returned a verdict of guilty and recommended years, suspended except as to the first two as punishment 12 years imprisonment on Count months with credit for all time served, and I, five years imprisonment on Count II and nine with rules and conditions of probation, on years on Count III. The trial court sentenced Counts 1 and 3 and one year on Count 2, in accordingly and also ordered the sentences to be Case No. CF-2004-5039. Appellant pled guilty served consecutively to each other. From this on June 2, 2008, in Oklahoma County Case No. judgment and sentence Jeremy Craig Lyday CF-2008-3106 to Larceny from Person at Night, has perfected his appeal. AFFIRMED. Opinion after former conviction of two or more felonies. by: Smith, V.P.J.; Lewis, P.J., concur; Lumpkin, He was sentenced to ten years, suspended J., concur; C. Johnson, J., concur; A. Johnson, J., except as to the first 180 days, with credit for concur. time served, and with rules and conditions of F-2012-1092 — Appellant, Delmeko Lashon probation. He was also fined $50.00. This sen- Stevens, was tried by jury and convicted of tence was ordered to run concurrent with Pointing a Firearm (Counts I and II), Assault CF-2004-4030 and CF-2004-5039. The State filed with a Dangerous Weapon (Count III), Assault an application to revoke Appellant’s suspend- with Intent to Kill (Counts VI and VII), After ed sentences. Following a revocation hearing Former Conviction of Two or More Felonies; on June 27, 2012, the Honorable Cindy H. Possession of Firearm After Felony Conviction Truong, District Judge, revoked Appellant’s (Count VIII); and Breaking and Entering (Count suspended sentences in full. The sentences V), in the District Court of Tulsa County, Case were ordered to run consecutive to Case No. Number CF-2012-340. The jury recommended CF-2011-1683. Appellant appeals from the revo- as punishment imprisonment for twenty (20) cation of his suspended sentences. Revocation years and a $10,000.00 fine in Count I; twenty- of suspended sentences REVERSED and five (25) years and a $10,000.00 fine in Count II; REMANDED to the District Court for further twenty (20) years in Count III; one (1) year and proceedings consistent with this Opinion. a $500.00 fine in Count V; life and a $10,000.00 Opinion by: Smith, V.P.J.; Lewis, P.J., concur in fine in Count VI; life and a $10,000.00 fine in result; Lumpkin, J., concur in result; C. John- Count VII; and ten (10) years in Count VIII. son, J., concur; A. Johnson, J., concur. The trial court sentenced accordingly and M-2012-584 — Appellant Addam Paul Easley ordered the sentences to run consecutively. It is was charged with Interfering with Official Pro- from this judgment and sentence that Appel- cess in Oklahoma City Municipal Court Case lant appeals. AFFIRMED. Opinion by: Lump- No. 11-4397966. On June 14, 2012, after a jury kin, J.; Lewis, P.J., concur; Smith, V.P.J., concur trial, Easley was found guilty of the offense, in result; C. Johnson, J., concur; A. Johnson, J., and the Municipal Court of Oklahoma City, the concur.

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 435 RE-2012-1159 — On November 3, 2010, sentencing was deferred pending completion Appellant Aaron M. Holmes, represented by of the McCurtain County Drug Court Program. counsel, entered a guilty plea to a charge of On March 15, 2012, the State filed an Applica- Knowingly Concealing Stolen Property in tion to Terminate Appellant from Drug Court Craig County Case No. CF-2010-16. Holmes participation. On December 16, 2012, Appel- was sentenced to five years, suspended, sub- lant’s participation in Drug Court was termi- ject to terms and conditions of probation. On nated and he was sentenced according to the July 21, 2011, Holmes entered a guilty plea to terms of his plea agreement. From this judg- a charge of Manufacturing a Controlled Dan- ment and sentence Appellant appeals. Appel- gerous Substance in Craig County Case No. lant’s termination from Drug Court is CF-2011-8. Holmes was sentenced to twenty- AFFIRMED. Opinion by: C. Johnson, J.; Lewis, five years, all suspended, subject to terms and P.J., Concurs; Smith, V.P.J., Concurs; Lumpkin, conditions of probation. On December 6, 2011, J., Concurs; A. Johnson, J., Concurs. the State filed an application to revoke Holm- RE-2013-198 — On August 6, 2007, Appellant es’s suspended sentences alleging Holmes vio- David Lester Jones, represented by counsel, lated his terms and conditions of probation by entered a guilty plea to a charge of Possession committing First Degree Robbery, Assault and of a Controlled Dangerous Substance, in Wash- Battery with a Dangerous Weapon, Use of a ington County Case No. CF-2005-521. Jones Firearm During Commission of a Felony and was sentenced to ten years, with all but the first Possession of a Firearm After Conviction or ninety days suspended, subject to terms and During Probation as alleged in Craig County conditions of probation. On January 31, 2012, Case No. CF-2011-152. On August 3, 2012, the the State filed an application to revoke Jones’s District Court of Craig County, the Honorable suspended sentence alleging Jones violated his Rebecca J. Gore, Special Judge, revoked Holm- terms and conditions of probation by commit- es’s suspended sentences in full. The revoca- ting the offenses of Possession of a Firearm tion of Holmes’s suspended sentences is AF- after Conviction of a Felony, Carrying a Fire- FIRMED. Opinion by: Smith, V.P.J.; Lewis, P.J., arm While Under the Influence and Public concur; Lumpkin, J., concur; C. Johnson, J., Intoxication as charged in Osage County Case concur; A. Johnson, J., concur. No. CF-2012-44. On February 19, 2013, the Dis- Thursday, February 6, 2014 trict Court of Washington County, the Honor- able Paul K. Woodward, Special Judge, revoked RE-2012-564 — On February 8, 2007, Appel- Jones’s suspended sentence in full. The revoca- lant Rueben Vasquez pled guilty to one count tion of Jones’s suspended sentence is AF- of Forgery in the Second Degree in Grady FIRMED. Opinion by: C. Johnson, J.; Lewis, County District Court Case No. CF-2007-27 P.J., Concurs; Smith, V.P.J., Concurs; Lumpkin, and two counts of Forgery in the Second J., Concurs; A. Johnson, J., Concurs. Degree in Grady County District Court Case No. CF-2007-29. He was sentenced to seven F-2013-191 — Troy O’Neal Glover, Appellant, years imprisonment on each count, all sus- was tried by jury and found guilty of embez- pended. On October 5, 2011, the State filed zlement, in violation of 21 O.S.Supp.2004, § amended motions to revoke Appellant’s sus- 1451(B)(2), in the District Court of Bryan Coun- pended sentences in Case Nos. CF-2007-27 and ty, Case No. CF-2011-641. The jury sentenced CF-2007-29. On June 21, 2012, following a revo- Appellant to one (1) year imprisonment and a cation hearing on Appellant’s motions to $5,000.00 fine. The Honorable Mark R. Camp- revoke, the Honorable Timothy A. Brauer, Spe- bell, District Judge, sentenced Appellant ac- cial Judge, revoked Appellant’s suspended cordingly. From this Judgment and Sentence, sentences in full. Appellant appeals. The revo- Mr. Glover has perfected his appeal. AFFIRMED. cation of Appellant’s suspended sentences is Opinion by: Lewis, P.J.; Smith, V.P.J., Concurs AFFIRMED. Opinion by: A. Johnson, J.; Lewis, in Results; Lumpkin, J., Concurs; C. Johnson, J., P.J.: Concur; Smith, V.P.J.: Concur in Results; Concurs; A. Johnson, J., Concurs. Lumpkin, J.: Concur; C. Johnson, J.: Concur. F-2012-1125 — Lamount Cortez Dority, F-2012-1139 — On August 25, 2011, Appel- Appellant, was tried by jury and found guilty lant Jason Travis Wells, represented by counsel, of trafficking in illegal drugs, after former con- entered a guilty plea to a charge of Possession viction of a felony, in violation of 63 O.S. of a Controlled Dangerous Substance in McCur- Supp.2011, § 2-415, in the District Court of Gar- tain County Case No. CF-2010-14. Appellant’s field County, Case No. CF-2011-678. The jury

436 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 sentenced Appellant to twenty-two (22) years RE-2012-620 — Daniel Christopher Shriver, imprisonment and a $50,000.00 fine. The Honor- Appellant, appeals from the revocation in full able Tom L. Newby, Associate District Judge, of his concurrent suspended sentences totaling pronounced judgment and sentence accordingly. twenty years in Case Nos. CF-2010-359 and Mr. Dority appeals. From this Judgment and CF-2010-608 the District Court of Garfield Sentence, Lamount Cortez Dority has perfected County, by the Honorable Dennis W. Hladik, his appeal. AFFIRMED. Opinion by: Lewis, P.J.; District Judge. In Case No. CF-2010-359, Appel- Smith, V.P.J., Concurs; Lumpkin, J., Concurs; C. lant pled guilty and was convicted of Count 1 Johnson, J., Concurs in Results; A. Johnson, J., – Robbery With a Weapon, and Count 2 – Kid- Concurs. napping, and was sentenced to terms of twenty years on Count 1 and ten years on Count 2, C-2013-180 and F-2013-67 — Brandy Lynn with the sentences suspended and ordered to Black, Petitioner, pled guilty in Pontotoc Dis- run concurrently with each other and with his trict Court case number CF-2012-104 to posses- sentences in Case No. CF-2010-608. In Case No. sion of a controlled dangerous substance CF-2010-608, Appellant pled guilty and was (methamphetamine and marijuana) in the pres- convicted of Count 1 – Burglary in the First ence of a minor child under 12 years of age, in Degree, and Count 2 – Robbery With a Weap- violation of 63 O.S.Supp.2009, § 2-402(C). Black on, and was sentenced to terms of twenty years and the State entered into an agreement for her on both counts, with the sentences suspended to participate in the Pontotoc County Mental and ordered to run concurrently with each Health Court program, which was approved other and with his sentences in Case No. by the District Court. Pursuant to the agree- CF-2010-359. On May 11, 2012, the State filed ment Black’s Judgment and Sentence would be applications to revoke Appellant’s suspended deferred until successful completion of the pro- sentences alleging he violated probation by (1) gram then the charges would be dismissed. If, failing to report and keep his probation officer however, she failed to complete the program, informed of his whereabouts; (2) failing to carry out instructions; (3) testing positive for the sentencing would be accelerated and she methamphetamine; (4) associating with a con- would be sentenced to ten (10) years imprison- victed felon; (5) failing to be gainfully employed ment. The State filed a motion to terminate or pursuing full-time study; and (6) willfully Black from mental health court, and the motion failed to pay probation fees. On May 16, 2012, was granted after a hearing before the Honor- the State filed amended applications to revoke able Martha K. Kilgore, Associate District Appellant’s suspended sentences adding a vio- Judge. Per the mental health court agreement, lation of probation that he committed the new Black was sentenced to ten (10) years imprison- crime of Escape From Arrest or Detention, as ment. Black filed a motion to withdraw her charged in Garfield County District Court Case plea within ten days of the termination hearing No. CF-2012-293. On July 2, 2012, the revoca- and sentencing. Black’s motion was denied by tion hearing was held before Judge Hladik. Judge Kilgore. Black is now before this Court After hearing the evidence and arguments, with her certiorari appeal from the denial of Judge Hladik revoked in full Appellant’s sus- the motion to withdraw plea and her direct pended sentences totaling twenty years. appeal from the termination from mental health AFFIRMED. Opinion by: A. Johnson, J.; Lewis, court. Because the two above styled appellate P.J., concurs in results; Smith, V.P.J., concurs; case numbers arise from one criminal proceed- Lumpkin, J., concurs; C. Johnson, J., concurs. ing, this Opinion disposes of both cases. In RE-2012-1042 — In the District Court of Tulsa Case Nos. F-2013-67 and C-2013-180, Brandy County, Clyde Rudy Jackson, Appellant, Lynn Black has perfected her appeals. The trial entered a plea of guilty to Unlawful Possession court’s decision to deny Petitioner’s motion to of Controlled Drug (Marijuana), a second or withdraw plea is AFFIRMED and the Applica- subsequent drug offense, in Case No. CF-2010- tion for Writ of Certiorari is DENIED. Further, 4482. In accord with a plea agreement, the the trial court’s decision to terminate Petitioner Honorable Allen Klein, Special Judge, sen- from the mental health court program, and the tenced Appellant to four (4) years imprison- Judgment and Sentence of the district court is ment, suspended. On November 2, 2012, the also AFFIRMED. Opinion by: Lewis, P.J.; Smith, Honorable Kurt G. Glassco, District Judge, V.P.J., Concurs ; Lumpkin, J., Concurs; C. John- found Appellant violated his probation and son, J., Concurs; A. Johnson, J., Concurs. revoked the suspension order in full. Appellant

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 437 appeals that final order of revocation. Applications to Accelerate, The Honorable Ray AFFIRMED. Opinion by: A. Johnson, J.; Lewis, C. Elliott, District Judge, found Appellant had P.J., concurs; Smith, V.P.J., concurs; Lumpkin, J, violated both of his deferred sentences. Judge concurs; C. Johnson, J., concurs. Elliott accelerated the Appellant’s deferred sentences and sentenced him to consecutive Friday, February 7, 2014 seven year terms of imprisonment. Appellant F-2012-1086 — George Edward Feugate, appeals. The acceleration of Appellant’s de- Appellant, was tried by jury for the crime of ferred sentencing in both cases is AFFIRMED: three counts of Sexual Abuse of a Child Under Lumpkin, J.; Lewis, P.J., concur; Smith, V.P.J., Twelve, in Case No. CF-2012-313, in the Dis- concur; C. Johnson, J., concur; A. Johnson, J., trict Court of Tulsa County. The jury returned a concur. verdict of guilty and recommended as punish- F-2013-106 — Michael Anthony Coley, Appel- ment life imprisonment and a $5,000.00 fine on lant, was tried by jury for the crime of Child each count. The trial court sentenced accord- Abuse, After Conviction of a Felony, in Case ingly and ordered the sentences be served con- No. CF-2012-178, in the District Court of Otta- secutively. From this judgment and sentence wa County. The jury returned a verdict of George Edward Feugate has perfected his guilty and recommended as punishment ten appeal. AFFIRMED.Opinion by: C. Johnson, J.; years imprisonment. The trial court sentenced Lewis, P.J., Concurs; Smith, V.P.J., Concurs; accordingly. From this judgment and sentence Lumpkin, J., Concurs; A. Johnson, J., Concurs. Michael Anthony Coley has perfected his RE-2013-378 — On January 13, 2012, Appel- appeal. AFFIRMED. Opinion by: C. Johnson, J.; lant pled guilty to Domestic Assault and Bat- Lewis, P.J., Concurs; Smith, V.P.J., Concurs; tery in the Presence of Minors in Ottawa Lumpkin, J., Concurs in Results; A. Johnson, J., County District Court Case No. CM-2010-1259, Concurs. Violation of a Protective Order in Ottawa F-2012-812 — Appellant, Terrico Dion Bethel, County District Court Case No. CM-2011-702 was tried by jury and convicted of First Degree and Violation of a Protective Order in Ottawa Murder (Count I) and Conspiracy to Commit County District Court Case No. CM-2011-764. Murder (Count II) in the District Court of Tulsa Appellant was sentenced to one year imprison- County, Case Number CF-2009-2738. The jury ment in each case, all suspended. The sentences recommended as punishment imprisonment were ordered to run consecutively. On June 7, for life without the possibility of parole and a 2012, the State filed motions to revoke Appel- fine in the amount of $10,000.00 in Count I and lant’s suspended sentence. On January 28, recommended imprisonment for ten (10) years 2013, the State filed a Supplemental Motion to and a fine in the amount of $5,000.00 in Count Revoke Suspended Sentence in each of Appel- II. The trial court sentenced accordingly and lant’s cases. On April 5, 2013, Appellant stipu- ordered the sentences to run consecutively. It is lated to the motions to revoke and Appellant from this judgment and sentence that Appel- was revoked in full. Appellant appeals. The lant appeals. AFFIRMED. Opinion by: Lump- revocation of Appellant’s suspended sentences kin, J.; Lewis, P.J., concur in result; Smith, V.P.J., is AFFIRMED. Opinion by: C. Johnson, J.; recuse; C. Johnson, J., concur in result; A. John- Lewis, P.J., Concurs; Smith, V.P.J., Concurs; son, J., concur. Lumpkin, J., Concurs; A. Johnson, J., Concurs. F-2012-1023 — On November 2, 2012, in the Monday, February 10, 2014 District Court of Oklahoma County, the Hon- F-2013-370 — On October 29, 20007 Appel- orable Ray C. Elliott, District Judge, accelerated lant Delvin Dewayne Scroggins pled guilty to the deferred sentencing of Appellant, Derek the reduced charge of Burglary in the Second Deangelo Harris, in Case No. CF-2009-4775. Degree in Case No. 2007-7. On November 29, Judge Elliott thereupon imposed Judgment 2007, Appellant pled guilty to Burglary in the and Sentence finding Appellant guilty of Pos- Second Degree in Case No. 2007-5739. His sen- session of a Firearm After Former Delinquent tencing in both cases was deferred for five Adjudication and sentencing him to ten (10) years with rules and conditions of probation. years imprisonment. Appellant appeals the On March 27, 2013, the State filed Amended final order accelerating sentencing. AFFIRMED. Applications to Accelerate Appellant’s deferred Opinion by: Lumpkin, J.; Lewis, P.J., concur in sentence in both cases. Following an April 2, result; Smith, V.P.J., concur; C. Johnson, J., con- 2013, acceleration hearing on the Amended cur; A. Johnson, J., concur.

438 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 Tuesday, February 11, 2014 Lumpkin, J., Concurs; C. Johnson, J., Concurs; A. Johnson, J., Concurs. RE-2012-1045 — On June 20, 1996, Appellant Frank Louis Hendricks, represented by coun- M-2012-416 — Richard Allen House II, Appel- sel, entered pleas of nolo contendere to charges lant, following a non-jury trial before the Hon- of First Degree Rape in Garfield County Case orable Norman L. Grey, Special Judge, in the Nos. CF-1995-294 and CF-1996-237, and to District Court of Garfield County, Case No. charges of First Degree Rape and Rape by CM-2011-492, was found guilty of Unlawful Instrumentation in Garfield County Case No. Possession of Drug Paraphernalia. On May 4, CF-1996-238. Hendricks was sentenced to forty 2012, Judge Grey imposed a fine of $250.00 and years for each count in each case, with all but a term of one (1) year in the county jail, with all the first twenty years suspended. The sentenc- but the first sixty (60) days of that term condi- es were ordered to be served concurrently. On tionally suspended on written rules of proba- July 20, 2011, the State filed an application to tion. Appellant appeals this judgment and revoke Hendricks’s suspended sentences. On sentence. REVERSED AND REMANDED. November 8, 2012, the District Court of Gar- Opinion by: Lewis, P.J.; Smith, V.P.J. Concurs; field County, the Honorable Tom Newby, Asso- Lumpkin, J.; Concurs; C. Johnson, J., Concurs; ciate District Judge, revoked Hendricks’s sus- A. Johnson, J.; Concurs. pended sentences in full. The revocation of C-2013-417 — Ashley Ann Mitchell, Peti- Hendricks’s suspended sentences is AFFIRMED. tioner, entered a blind plea in the District Court Opinion by: Lewis, P.J.; Smith, V.P.J., Concurs of Washington County, Case No. CF-2012-89, to in Results; Lumpkin, J., Concurs; C. Johnson, J., two counts of Child Neglect (Counts 1 and 2), Concurs; A. Johnson, J., Concurs. one count of Enabling Child Abuse by Injury RE-2012-873 — John Richard Hartness, (Count 2), two counts of Possession of Con- Appellant, appeals from the revocation of the trolled Dangerous Substance (Counts 4 and 5), thirty year remaining balance of his suspended misdemeanor Possession of Marijuana (Count sentence in Case No. CF-1999-230 in the Dis- 6), and misdemeanor Possession of Drug Para- trict Court of Osage County, by the Honorable phernalia (Count 7). The Honorable Curtis L. Stuart L. Tate, Special Judge. On October 12, DeLapp, District Judge, accepted Mitchell’s 2004, Appellant entered a negotiated plea of blind plea and sentenced her to forty-five years guilty to Count 1, Knowingly Concealing Sto- imprisonment on each of Counts 1, 2, and 3, len Property, and Count 2, Possession of Meth- with all but the first thirty years suspended, amphetamine, After Former Conviction of Six and ten years imprisonment on each of Counts Former Felony Convictions. After the District 4 and 5. Judge DeLapp waived the fines on the Attorney waived the prohibition on suspend- misdemeanors in Counts 6 and 7, and assessed ing the sentence, Appellant was convicted and costs and fees. Judge DeLapp ordered all of sentenced in accordance with the agreement to Mitchell’s sentences to run concurrently with a term of forty-five (45) years, with all but the one another. Mitchell filed a timely Motion to first seven years suspended. On March 24, Withdraw Plea which was denied. Mitchell 2006, Appellant stipulated to a first motion to appeals the order denying her motion and peti- revoke eight years of the remaining thirty-eight tions this Court for a Writ of Certiorari. The years of Appellant’s suspended sentence was Petition for Writ of Certiorari is DENIED. The revoked. On January 25, 2012, the State filed Judgment and Sentence of the District Court is the current motion to revoke Appellant’s sus- AFFIRMED. Opinion by: A. Johnson, J.; Lewis, pended sentence alleging he violated proba- P.J., concurs; Smith, V.P.J., concurs; Lumpkin, J., tion by (1) failing to pay court costs; and (2) concurs in results; C. Johnson, J., concurs. committing the new crimes charged in Tulsa C-2013-309 — Joseph Leonard Cox, Jr., Peti- County District Court Case No. CF-2011-2873. tioner, entered a negotiated plea of guilty in On September 5, 2012, the revocation hearing Case No. CF-2011-82 to Possession of Con- was held before Judge Tate. Appellant stipu- trolled Dangerous Substance (Methamphet- lated to the alleged violations of probation, but amine), After Former Conviction of Two or asked for leniency on sentencing. After hearing More Felonies (Count 1), two counts of Posses- the evidence and arguments, Judge Tate sion of Controlled Dangerous Substance (Mis- revoked the thirty year remaining balance of demeanor) (Counts 2 & 3), and Possession of Appellant’s suspended sentence. AFFIRMED. Paraphernalia (Count 4), and in Case No. Opinion by: Lewis, P.J.; Smith, V.P.J., Concurs; CF-2012-454 Cox pled guilty to one count of

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 439 Possession of Contraband (Count 1), in the Dis- sentences. On January 23, 2013, the District trict Court of Osage County. The Honorable M. Court of Kay County, the Honorable D.W. Boyd, John Kane, IV, accepted Cox’s plea and sen- District Judge, revoked three years of each of tenced him according to the plea agreement, Stackhouse’s suspended sentences. The revo- specifically in Case No. CF-2011-82 to ten years cation of Stackhouse’s suspended sentences is imprisonment and a $200 fine on Count 1 and AFFIRMED. Opinion by: A. Johnson, J.; Lewis, a $100 fine on each of Counts 2, 3, and 4, and in P.J., concurs; Smith, V.P.J., concurs; Lumpkin, J., Case No. CF-2012-454 to five years imprison- concurs; C. Johnson, J., concurs. ment. The district court assessed Cox various RE-2012-887 — On October 20, 2005, Appel- court costs in each case, gave him credit for lant Jason Lee Hutton, represented by counsel, time served, and ordered the sentences to run entered a no contest plea in Cotton County concurrently with each other. In addition, the Case No. CF-2005-22 to a charge of First Degree district court accepted Cox’s stipulation to the Burglary. Sentencing was deferred. On October State’s Motion to Revoke Suspended Sentence 25, 2007, Hutton’s deferred sentence was accel- in Case No. CF-2010-51, and sentenced Cox to erated and he was sentenced to ten (10) years twenty years imprisonment, running concur- with all but the first five (5) years suspended, rently with his sentences in CF-2011-82 and subject to terms and conditions of probation. CF-2012-454. Cox wrote a letter to his trial On August 15, 2012, the State filed an applica- attorney that was filed of record and inter- tion to revoke Hutton’s suspended sentence. preted as a motion to withdraw plea. The dis- On September 13 2012, the District Court of trict court appointed conflict counsel, held a Cotton County, the Honorable Michael C. hearing and denied the motion. Cox appeals Flanagan, Associate District Judge, revoked the order denying his motion and petitions this Hutton’s suspended sentence in full. The revo- Court for a Writ of Certiorari allowing him to cation of Hutton’s suspended sentence is withdraw his plea and proceed to trial. The AFFIRMED. Opinion by: Smith, V.P.J.; Lewis, Petition for Writ of Certiorari is DENIED. The P.J.: concur; Lumpkin, J.: concur; C. Johnson, J.: Judgment and Sentence of the District Court is concur; A. Johnson, J.: concur. AFFIRMED. The case is REMANDED to the district court with instructions to amend the C-2012-1151 — Elsa Solis, Petitioner, entered Judgment and Sentence to reflect credit for a blind plea to Child Abuse or in the alterna- time served. Opinion by: A. Johnson, J.; Lewis, tive, Enabling Child Abuse in Case No. CF-2010- P.J., concurs; Smith, V.P.J., concurs; Lumpkin, J., 8077 in the District Court of Oklahoma County. concurs; C. Johnson, J., concurs. After a sentencing hearing, the trial court sen- tenced her to 35 years imprisonment and fined RE-2013-69 — On April 26, 2010, Appellant her $100. Solis’ Application to Withdraw Plea Stackhouse, represented by counsel, entered of Guilty was denied following a December 19, guilty pleas to charges of Conspiracy to Com- 2012, hearing. From this ruling, Elsa Solis has mit a Drug Offense and Unlawful Possession perfected her certiorari appeal. PETITION FOR of Controlled Drug with Intent to Distribute in WRIT OF CERTIORARI DENIED. Opinion by: Kay County Case No. CF-2009-20, Conspiracy Smith, V.P.J.; Lewis, P.J., concur in result; Lump- and Larceny of Merchandise from a Retailer in kin, J., concur; C. Johnson, J., concur; A. John- Kay County Case No. CF-2009-613 and Larceny son, J., concur. of an Automobile in Kay County Case No. CF-2009-718. Stackhouse was sentenced to ten C-2012-1165 — Gabriel Brian Solis, Petitioner years for each count in Case No. CF-2009-20 entered a blind Alford plea to Child Abuse or, with all but the first six months suspended, the in the alternative, Enabling Child Abuse in sentences were to be served concurrently. In Case No. CF-2010-8077 in the District Court of Case No. CF-2009-613 he was sentenced to ten Oklahoma County. After a sentencing hear- years for the conspiracy and five years for the ing, the trial court sentenced him to 80 years larceny, suspended, the sentences to be served imprisonment and fined him $100. The trial concurrently with each other. Stackhouse was court denied Solis’ Application to Withdraw sentenced to ten years with all but the first six Plea of Guilty after a December 19, 2012, hear- months suspended in Case No. CF-2009-718. ing. From this denial, Gabriel Brian Solis has The sentences in each of the three cases were perfected his certiorari appeal. PETITION ordered to be served concurrently with each FOR CERTIORARI GRANTED; CASE RE- other. On November 16, 2012, the State filed an MANDED for evidentiary hearing with con- application to revoke Stackhouse’s suspended flict-free counsel. Opinion by: Smith, V.P.J.;

440 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 Lewis, P.J., concur; Lumpkin, J., concur in hearing concluded on August 24, 2011, the result; C. Johnson, J., concur; A. Johnson, J., Honorable Curtis L. DeLapp, District Judge, concur. revoked Appellant’s suspended sentence and sentenced Appellant to fourteen years, six F-2012-1014 — David Lynn Fleming, Appel- months imprisonment. Appellant appeals from lant, was tried by jury and convicted of Count the revocation of his suspended sentence. The I - Breaking and Entering, Count III - Posses- revocation of Appellant’s suspended sentence sion of a Controlled Dangerous Sub-stance is AFFIRMED. Opinion by: Lewis, P.J.; Smith, (Methamphetamine and Marijuana) AFCF V.P.J.: Concurs; Lumpkin, J.: Concurs; C. John- (two or more) and Count V - Possession of son, J.: Concurs; A. Johnson, J.: Concurs. Drug Paraphernalia in Case No. CF-2011-714 in the District Court of Payne County. The Wednesday, February 12, 2014 jury recommended as punishment one year F-2012-0790 — Appellant, Windell Darlene imprisonment for each of Counts I and V and Thompson, pled guilty on February 28, 2011, in 50 years on Count III. The trial court sentenced Lincoln County District Court Case No. CF-2010- accordingly. From this judgment and sentence 110 to two counts of Uttering Forged Instrument, David Lynn Fleming has perfected his appeal. after two or more felony convictions. Pursuant JUDGMENT AFFIRMED on Counts I, III and to the plea agreement, Appellant entered the V; SENTENCE AFFIRMED on Counts I and V; Lincoln County Drug Court Program. All charg- SENTENCE MODIFIED to 30 years im- prison- es would be dismissed upon successful comple- ment on Count III. Opinion by: Smith, V.P.J.; tion of Drug Court and Appellant agreed that if Lewis, P.J., concur in result; Lumpkin, J., con- she did not successfully complete the Drug cur in part/dissent in part; C. Johnson, J., con- Court program, she would be sentenced to fif- cur; A. Johnson, J., concur. teen years imprisonment on each count. The RE-2012-803 — In the District Court of Grady State filed an application on April 2, 2012, to County, Case No. CF-2003-280, Donald Ray revoke Appellant’s participation in the Drug Gaston, Appellant, was found guilty of Posses- Court Program and to accelerate Appellant’s sion of a Controlled Substance (Cocaine), After sen-tencing date. Following a hearing on Former Conviction of a Felony. On March 24, August 22, 2012, the Honorable Cynthia Ferrell 2004, he was sentenced for that offense to a Ashwood, District Judge, found Appellant had term of ten (10) years imprisonment, with all violated the terms and conditions of the Drug but the first five (5) years thereof conditionally Court contract. Judge Ashwood sentenced suspended under rules of probation. In CF- Appellant to fifteen years imprisonment on 2010-293, Appellant was found guilty of Escape each count. The sentences were ordered to run from Arrest or Detention, After Former Con- concurrently. Appellant appeals from her ter- viction of a Felony, and on May 5, 2011, he was mination from Drug Court. Appellant’s termi- sentenced to five (5) years imprisonment, all nation from Drug Court is AFFIRMED. Opin- suspended under terms of probation. On ion by: A. Johnson, J.; Lewis, P.J.: Concur; August 28, 2012, the Honorable Richard G. Van Smith, V.P.J.: Concur; Lumpkin, J.: Concur; C. Dyck, District Judge, found Appellant violated Johnson, J.: Concur. his probation and revoked these suspension F-2013-328 — Carlton Ozzie Redelk, Appel- orders in full. Appellant appeals that final lant, was tried in a non-jury trial for the crimes order of revocation. AFFIRMED. Opinion by: of Driving a Motor Vehicle While Under the Lewis, P.J.; Smith, V.P.J., Concurs; Lumpkin, J, Influence of Alcohol, Third and Subsequent, a Concurs in Results; C. Johnson, J., Concurs; A. felony (Count 1), and Failure to Carry Insur- Johnson, J., Concurs. ance/Security Verification Form, a misde- RE-2011-0789 — Appellant, Terrance Vohn meanor (Count 2) in Case No. CF-2010-254 in Morrow, pled guilty November 25, 2008, to the District Court of Comanche County. The Distribution of Controlled Substance in Wash- Honorable Allen McCall, who presided at ington County District Court Case No. CF-2007- trial, sentenced Redelk to eight years im- pris- 43. He was sentenced to fifteen years with six onment and a $1,000.00 fine on Count 1, and a months to serve and the balance suspended, $10.00 fine on Count 2. From this judgment with rules and conditions of probation. Appel- and sentence Carlton Ozzie Redelk has per- lant was also fined $500.00. The State filed a fected his appeal. The Judgment and Sentence motion to revoke Appellant’s suspended sen- of the District Court is AFFIRMED. Opinion tence on June 7, 2011. Following a revocation by: A. Johnson, J.; Lewis, P.J., concurs; Smith,

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 441 V.P.J., concurs; Lumpkin, J., concurs; C. John- F-2013-216 — Appellant Dillan Wade Friday son, J., concurs. was tried by jury and convicted of First Degree Rape By Force or Fear (Count I) and Forcible F-2012-141 — Aaron Jerome Jacobs, Appel- Oral Sodomy (Count II), Case No. YO-2011-16, lant, was tried by jury for the crime of First in the District Court of Tulsa County. The jury Degree Felony Murder During the Commis- recommended as punishment five (5) years sion of a Robbery with a Dangerous Weapon, imprisonment in Count I and no punishment or in the alternative, First Degree Malice Afore- in Count II. The trial court sentenced ac- cord- thought Murder in Case No. CF-2010-25 in the ingly. It is from this judgment and sentence District Court of Pushmataha County. The jury that Appellant appeals. AFFIRMED. Opinion returned a verdict of guilty and recommended by: Lumpkin, J.; Lewis, P.J.: concur; Smith, as punishment life im- prisonment with the V.P.J.: concur; C. Johnson, J.: concur; A. John- possibility of parole. The trial court sentenced son, J.: concur. accordingly. From this judgment and sentence Aaron Jerome Jacobs has perfected his appeal. RE-2012-1010 — In the District Court of Grant The Judgment and Sentence of the District County, Jerry Dale Pitts, Appellant, was found Court is AFFIRMED Opinion by: A. Johnson, J.; guilty of Possession of a Firearm During the Lewis, P.J., concurs; Smith, V.P.J., concurs; Commission of a Felony in Case No. CF-2010-22 Lumpkin, J., concurs; C. Johnson, J., concurs. and sentenced to ten (10) years imprisonment. In CF-2010-24, Appellant was convicted of Posses- Thursday, February 13, 2014 sion of Material with the Intent to Manufacture F-2012-1106 — Following pleas of guilty in a Controlled Dangerous Substance (Metham- the District Court of Osage County, Appellant, phetamine) and was sentenced to ten (10) years Lewis Kenneth Randall Carter, was admitted imprisonment. In CF-2010-27, Ap- pellant was to the Osage County Drug Court Program in sentenced to five (5) years im- prisonment for Case No. CF-2008-40 for Possession of a Con- Knowingly Concealing Stolen Property. The trolled Substance (Methamphetamine and Honorable Jack D. Hammontree, Associate Dis- Marijuana) in Presence of a Child or within trict Judge, imposed these sentences on March 1,000 Feet of a School or Park, and in Case No. 13, 2012, and ordered they be served concur- CF-2008-224 for Count 1 – False Personation of rently but conditionally suspended their execu- Another to Create Liability, Count 2 – Posses- tion on written terms of probation. On October sion of a Controlled Substance (Marijuana), 30, 2012, Judge Ham- montree found Appellant and Count 3 - Possession of a Controlled Sub- violated his probation and revoked the suspen- stance (Alprazolam). Pursuant to a plea agree- sion order in full in CF-2010-27 and revoked ment, the Honorable John S. Boggs, Jr., Special seven-(7)-year portions of the suspension orders Judge, on November 12, 2008, delayed sentenc- in CF-2010-22 and CF-2010-24. Appellant appeals ing pending Appellant’s completion of that that final order of revocation. AFFIRMED. Opin- pro-gram. On August 24, 2012, the Honorable ion by: C. Johnson, J.; Lewis, P.J., Concurs; Smith, Stuart L. Tate, Special Judge, terminated Appel- V.P.J., Concurs; Lumpkin, J, Concurs; A. John- lant from Drug Court, and as required by son, J., Concurs. Appellant’s Drug Court admission agreement, RE-2013-457 — On September 20, 2010, Appel- Judge Tate imposed a sentence in CF- 2008-40 lant Marlon Lee Simpkins pled guilty to Posses- of five (5) years imprisonment and imposed sion of a Controlled Dangerous Substance With sentences in CF-2008-224 of five (5) years Intent to Distribute and Possession of Proceeds imprisonment on Count 1, one (1) year in jail Derived From a Violation of the Uniform Con- on Count 2, and one (1) year in on Count 3. As trolled Dangerous Substance Act in Oklahoma further required by Appellant’s Drug Court County District Court Case No. CF-2011-5953. agreement, Judge Tate ordered the terms of Appellant was sentenced to eight years impris- confinement imposed in CF-2008-224 to be onment, all but ninety days suspended. On served concurrently with each other but con- December 27, 2012, the State filed an applica- secutively to that sentence imposed in CF-2008- tion to revoke Appellant’s suspended sentence. 40. Appellant appeals the final order terminat- On March 18, 2013, the State filed an amended ing him from Drug Court. AFFIRMED. Opin- application to revoke Appellant’s Case No. ion by: C. Johnson, J.; Lewis, P.J.,Concurs; CF-2011-5953 suspended sentence. On April Smith, V.P.J., Concurs; Lumpkin, J., Concurs; A. 30, 2013, following a revocation hearing, Judge Johnson, J., Concurs. Elliott revoked Appellant’s sentence in full.

442 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 Appellant appeals. The revocation of Appel- J.; Lewis, P.J., concurs; Smith, V.P.J., concurs; lant’s suspended sentence is AFFIRMED. Opin- Lumpkin, J., concurs; C. Johnson, J., concurs. ion by: A. Johnson, J.; Lewis, P.J.: Concur; PCD-2010-660 — Roderick L. Smith, Peti- Smith, V.P.J.: Concur; Lumpkin, J.: Concur; C. tioner, was convicted by a jury in Oklahoma Johnson, J.: Concur County District Court, Case No. CF-1993-3968, F-2012-1137 — Richard Allen Swanson, of five counts of First Degree Murder. He was Appellant, was tried by jury for the crime of originally sentenced to death on all five counts. Unauthorized Use of a Motor Vehicle, after After various appellate proceedings, the con- former conviction of two or more felonies, in victions were affirmed, but the case was Case No. CF-2012-79 in the District Court of remanded for resentencing. See Smith v. State, Washington County. The jury returned a ver- 1996 OK CR 50, 932 P.2d 521 (convictions and dict of guilty and recommended as punish- sentences affirmed on direct appeal); Smith v. ment ten years imprisonment. The trial court Mullin, 379 F.3d 919 (10th Cir. 2004) (convic- sentenced accordingly. From this judgment tions affirmed on habeas review but case re- and sentence Richard Allen Swanson has per- manded for resentencing). On resentencing, a fected his appeal. The Judgment and Sentence jury recommended sentences of life without of the District Court is AFFIRMED. Opinion parole for Counts 1, 3, and 4, but recommended by: A. Johnson, J.; Lewis, P.J., concurs; Smith, a sentence of death for Counts 2 and 5. We V.P.J., concurs; Lumpkin, J., concurs; C. John- affirmed these sentences on direct appeal. son, J., concurs. Smith v. State, 2013 OK CR 14, 306 P.3d 557. During the pendency of that direct appeal, F-2012-1096 — Jeffery Allen Chavez, Ap- pel- Petitioner timely filed an Application for Post- lant, was tried by jury for the crimes of Aggra- Conviction Relief and related motions. Upon vated Attempt to Elude a Police Officer, and review, we conclude that the Application for Conspiracy to Commit Aggravated Attempt to Post-Conviction Relief, and Petitioner’s re- Elude a Police Officer, both After Conviction of quests for discovery and an evidentiary hear- a Felony, in Case No. CF-2010-7539, in the Dis- ing, should be DENIED. Petitioner’s motion trict Court of Oklahoma County. The jury reserving the right to supplement his Ap- pli- returned a verdict of guilty and recommended cation pending disposition of his direct appeal as punishment ten years and fifteen years is DISMISSED AS MOOT. Opinion by: C. John- imprisonment, respectively. The trial court sen- son, J.; Lewis, P.J., Concurs; Smith, V.P.J., Con- tenced accordingly ordering the sentence to be curs; Lumpkin, J., Concurs; A. John-son, J., served consecutive to each other. From this Concurs. judgment and sentence Jeffery Allen Chavez has perfected his appeal. AFFIRMED. Opinion Friday, February 14, 2014 by: C. Johnson, J.; Lewis, P.J., Concurs; Smith, F-2012-918 — Appellant Robert Roland Yer- V.P.J., Concurs; Lumpkin, J., Concurs; A. John- ton, Jr., was tried by jury and found guilty of son, J., Concurs. Child Sexual Abuse of B.H. (Counts II and III) PCD-2014-71 — Before the Court is Peti- and Lewd Molestation of A.P. (Count IV), Case tioner Marlon Deon Harmon’s second appli- No. CF-2010-1707, in the District Court of Tulsa cation for post-conviction relief and motion County. The jury recommended as punishment for evidentiary hearing. A jury convicted Har- twelve (12) years imprisonment in each of mon of First Degree Felony Murder in Case Counts II and III and three (3) years imprison- No. CF-2004-4956 in the District Court of Okla- ment in Count IV. The trial court sentenced homa County, and sentenced him to death. Appellant as recommended in Count II. In Since then Harmon has challenged his Judg- Count III, the court sentenced Appellant to ment and Sentence on direct appeal and in col- twelve (12) years but suspended the last four lateral proceedings in this Court. These chal- (4) years. In Count IV, the trial court sentenced lenges have proven unsuccessful. After review- Appellant to three (3) years imprisonment, all ing Harmon’s second application for post-con- suspended. The sentences were ordered to run viction relief, we conclude that he is not entitled consecutively. It is from this judgment and sen- to relief. Accordingly, Marlon Deon Harmon’s tence that Appellant appeals. AFFIRMED. second application for post-conviction relief is Opinion by: Lumpkin, J.; Lewis, P.J.: concur; DENIED. Further, his motion for an evidentia- Smith, V.P.J., concur in result; C. Johnson, J.: ry hearing is DENIED. Opinion by: A. Johnson, concur; A. Johnson, J., concur.

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 443 F-2012-170 — Appellant, Darnell Lamar 111,576 — (Comp. w/110,427 and 111,388) Wright, was tried by jury and convicted of Riverview Park Estates, LLC, Plaintiff, vs. Robbery with a Firearm (Count 1); False Per- Imperial Investments, LLC, Defendant/ sonation (Count 3); and Assault while Masked Appellant, Riverside Lots, LLC and Paloma (Count 6), After Former Conviction of Two or Capital, LLC, Additional Third-Party De- fen- More Felonies, in the District Court of Tulsa dants/Appellees, vs. Imperial Invest- ments, County, Case Number CF-2010-599. The jury LLC and Stephen C. Pereff, Defendants on recommended as punishment imprisonment Cross-Claim of Additional Third-Party Defen- for life in Count 1, four (4) years in Count 3, dants/Appellants, Steven R. Hickman and and twenty (20) years in Count 6. The trial Frasier, Frasier & Hickman, LLP, Third-Party court sentenced accordingly and ordered the Defendants on Third-Party Petition of Addi- sentences to run consecutively. It is from this tional Third-Party Defendants. Appeal from judgment and sentence that Appellant appeals. the District Court of Tulsa County, Oklahoma. The Judgment and Sentence of the district Honorable Mary F. Fitzgerald, Judge. Defen- court on Counts 1 and 3 is AFFIRMED. The dants on Cross-Claim/Appellants Imperial Judgment and Sentence of the district on Count Investments, LLC (Imperial) and Steven C. Per- 6 is REVERSED with instructions to DISMISS. eff appeal the trial court’s order granting a Opinion by: Lumpkin, J.; Lewis, P.J.: concur; motion to disqualify Imperial and Pereff’s Smith, V.P.J.: concur; C. Johnson, J.: concur; A. counsel, Steven R. Hickman, George Miles, and Johnson, J., concur. Frasier, Frasier & Hickman, LLP (FFH) filed by Additional Third-Party De- fendants/Plaintiffs COURT OF CIVIL APPEALS on the Cross-Claim of Appellees Riverside (Division No. 1) Lots, LLC (Riverside) and Paloma Capital, LLC Wednesday, February 5, 2014 (Paloma). Hickman, FFH, Imperial, and Pereff 111,067 — HSBC Bank U.S.A., N.A., as Inden- are all defendants in the underlying lawsuit ture Trustee, Plaintiff/Appellee, vs. Willie N. filed by Riverside and Paloma. After de novo Lewis and Cheryl A. Lewis, Defendants/ review, we hold the trial court did not err in Appellants, John Doe, Jane Doe, Mortgage disqualifying Imperial and Pereff’s counsel. Electronic Registration Systems, Inc., As Nomi- We affirm. AFFIRMED. Opin-ion by Buettner, nee for Fieldstone Mortgage Company, Its Suc- J.; Joplin, P.J., and Hetherington, V.C.J., concur. cessors and Assigns, and Alliant Credit Union, 112,051 — In the Matter of W.M., Deprived f/k/a United Airlines Employees’ Credit Child: State of Oklahoma, Petitioner/Appellee, Union, Defendants. Appeal from the District vs. Richard Hyatt, Respondent/Appellant. Court of Tulsa County, Oklahoma. Honorable Appeal from the District Court of Oklahoma Jefferson D. Sellers, Judge. Defendant Debtors County, Oklahoma. Honorable Richard Kirby, seek review of the trial court’s order granting Judge. Respondent/Appellant Richard Hyatt judgment to Plaintiff Bank in Bank’s action to (Father) appeals from judgment on a jury ver- collect a promissory note and foreclose a mort- dict terminating his parental rights to W.M. gage. In this appeal, Debtors assert Bank did based on incarceration. After reviewing the not demonstrate its standing to enforce the record, we hold that clear and convincing evi- note. Bank proved its standing to enforce the dence supports the termination of Father’s note by showing that, on the date of filing of parental rights. We affirm. AFFIRMED. Opin- the original petition, it was the “holder” of the ion by Buettner, J.; Joplin, P.J., and Hethering- note in possession of the note, properly en- ton, V.C.J., concur. dorsed as payable to it, the person in posses- sion of the note. The assignment of mortgage to (Division No. 2) Bank from Mortgage Electronic Registration Friday, February 7, 2014 Systems, Inc., As Nominee for Fieldstone Mort- 111,421 — CACH, LLC, Plaintiff/Appellee, gage Company, the original mortgagee, is of no vs. Karl L. Collins, Defendant/ Appellant. consequence, because proof of ownership of Appeal from Order of the District Court of the note carried with it ownership of the mort- Tulsa County, Hon. E. Mark Barcus, Trial Judge. gage security, and the security interest cannot In this action to recover for breach of a credit be bifurcated from the note. AFFIRMED. Opin- card agreement and upon an indebtedness, ion by Joplin, P.J.; Hetherington, V.C.J., and Defendant Karl L. Collins appeals from the Buettner, J., concur. district court’s order granting summary judg- ment in favor of Plaintiff CACH, LLC. CACH’s

444 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 motion for summary judgment was properly argues the trial court erred by awarding partial supported by evidentiary materials, and op- summary adjudication in favor of Magnum on posed by none. At the summary judgment the negligence theories, but does not challenge hearing, the district court questioned Collins the jury verdict. Based on our review of the and afforded him the opportunity to explain facts and applicable law, we affirm the Order why he objected to the motion. It is apparent because we conclude Magnum is the principal from Collins’s filings in the district court and employer under the circumstances, and Blake- his arguments at the hearing that Collins incor- more is therefore precluded from pursuing his rectly focused on article 3 of the UCC, which negligence theories against Magnum by the deals with notes. CACH did not allege that any exclusive remedy provisions of the Workers’ note was involved but alleged that Collins’s Com-pensation Act in effect at the time of use of the Bank of America credit card created Blakemore’s injuries. See 85 O.S. Supp. 2005 § 12. a debt. Collins’s reliance on the Deutsche Bank However, we reverse the trial court’s award of line of cases in support of his arguments on costs with directions to set forth the specific standing and jurisdiction is also misplaced. amounts awarded under each category of 12 This is not a foreclosure action and CACH is O.S.2011 § 942. AFFIRMED IN PART, REVERSED not trying to establish it is a “holder” of a note. IN PART, AND REMANDED WITH DIREC- See Deutsche Bank v. Matthews, 2012 OK 14, ¶¶ TIONS. Opinion from Court of Civil Appeals, 9-10, 273 P.3d at 47 (holding that a plaintiff Division II, by Barnes, C.J.; Wiseman, P.J., and must show it became a “person entitled to Goodman, J., concur. enforce” the note prior to the filing of a foreclo- (Division No. 3) sure proceeding). AFFIRMED. Opinion from Thursday, January 30, 2014 Court of Civil Appeals, Division II by Fischer, P.J.; Rapp, J., and Wiseman, J. (sitting by desig- 110,855 — John D. Son, as Executor of the nation), concur. Estate of June King Son, Deceased, Plaintiff/ Appellant, vs. Tim Robison, M.D., John Rice, Monday, February 10, 2014 D.O., and the Payne and Rice Clinic, Inc., 110,603 — Kevin D. Blakemore, Plaintiff/ Defendants/Appellees. Appeal from the Dis- Appellant, v. Magnum Construction, Inc., an trict Court of Muskogee County, Oklahoma. Oklahoma corporation, Defendant/Appellee, Honorable Norman D. Thygesen, Judge. In this and American Crane and Erection Service, Inc., wrongful death action, Appellant appeals from an Oklahoma corporation, Defendant. Appeal the trial court’s summary judgment in favor of from an Order of the District Court of Tulsa Appellee, Tim Robison, M.D. He also appeals County, Hon. Dana Lynn Kuehn, Trial Judge. from the trial court’s judgment denying his Plaintiff/Appellant (Blakemore) sustained inju- motion to reconsider the granting of summary ries when he fell from a roof while working for judgment in favor of Appellees, John Rice, his employer, a subcontractor at a construction D.O. and Payne and Rice Clinic, Inc. The crux site. After receiving workers’ com-pensation of Appellant’s wrongful death claim is that the benefits from his employer, Blakemore filed suit drug Protonix was given to his mother and that in the district court asserting the following theo- said drug caused her pancreatitis which led to ries of recovery against the general contractor, her death. That alleged connection between the Defendant/Appellee (Magnum): negligence, medication and Mrs. Son’s injury was not read- negligence per se, and acting with knowledge ily apparent to a layman, but required a degree that Blakemore’s injuries were “substantially of knowledge or skill not possessed by the certain” to occur. The trial court granted sum- average person to ascertain. For this reason, mary adjudication in favor of Magnum as to expert testimony was necessary to establish Dr. the theories of negligence and negligence per Robison breached a duty and that this breach se, but denied summary adjudication as to the caused Mrs. Son’s injury. Appellant failed to “substantially certain” theory (also known as a endorse an expert witness to testify as to Dr. “Parret tort”). The trial court declined to certify Robison’s surgical standard of care or his its Order for immediate appeal, and the case involvement in the dispensing of Protonix. proceeded to a jury trial on the “substantially Appellant also failed to present a record suffi- certain” theory. Following entry of judgment cient to support his challenge to the trial court’s memorializing the jury’s verdict in favor of entry of summary judgment in favor of Dr. Magnum on the “substantially certain” theory, Robison. Under Rule 1.36, where briefs are Blakemore appealed. On appeal, Blakemore absent, the petition in error plays a critical role

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 445 in determining what issues the appellant has the lease expired due to cessation of produc- preserved for consideration on appeal. Here, tion, Appellants (Lessors) appeal the trial we cannot ascertain the reasons or the alleged court’s order granting summary judgment to evidence either from Appellant’s first allega- Appellees (Lessees). The issue here is not tion of error or the summary of the case that whether Appellees timely commenced their would overcome the presumption of the cor- reworking operations pursuant to the cessation rectness of the trial court’s findings. We hold of production clause. Rather, the issue is wheth- Appellant’s first assignment of error is not suf- er the efforts and timing of Appellees’ rework- ficient to preserve any legal error. Next, we ing, and later drilling, operations were suffi- disagree with Appellant’s characterization of cient to extend the lease. The instant record Dr. Ro- bison’s statement as an “admission” might, indeed, support a conclusion that Appel- creating a question of fact regarding his surgi- lees’ actions under the circumstances consti- cal standard of care. If anything, that language tuted a bona fide effort to restore Ap- pellants’ exonerates Dr. Robison from any negligence mineral estate to production. However, this claim related to the administration of Protonix Court cannot make such a finding as a matter to Mrs. Son. Lastly, Appellant argues his motion of law. There exists a disputed issue of material to re- consider created an issue of material fact fact regarding whether Appellees’ reworking for jury determination. Appellant waited until and drilling operations constituted reasonable, the eleventh hour, after the discovery cutoff diligent and good faith efforts sufficient to date and after judgment was granted against extend the Lease. Such a conclusion must be him, to produce his expert witness’ opinion in made by a fact-finder and is not subject to sum- an attempt to reverse the summary judgment mary adjudication under the record presented. granted in favor of Dr. Rice and Clinic. Such Accordingly, the judgment of the trial court is dilatory trial tactics will not be condoned by REVERSED AND REMANDED FOR FUR- this Court. Also, Appellant’s motion to re- con- THER PROCEEDINGS. Opinion by Bell, P.J.; sider failed to explain how Dr. Lambrecht’s Goree, J., and Joplin, J. (sitting by designation), report was newly discovered evidence that concur. could not have been discovered and produced Friday, February 14, 2014 prior to the discovery deadline date and the hearing on summary judgment with reason- 109,674 — Jimmy H. Campbell and Janice K. able diligence. After reviewing the record, the Campbell, Plaintiffs/Appellees, vs. Concept argu-ments of the parties, and the evidentiary Builders, Inc., Defendant/Appellant. Appeal materials, we cannot find the trial court erred from the District Court of Tulsa County, Okla- in granting judgment in favor of Dr. Robison homa. Honorable Rebecca Brett Night- ingale, and in denying Appellant’s motion to re- con- Judge. Appellant (Concept Builders) seeks sider. Defendants’ motion to strike the discov- review of an Order Denying Arbitration of ery documents that Plaintiff improperly includ- Appellees (Campbells) claims for breach of ed in the appellate record is granted. These both oral and written contract, breach of war- documents were improperly filed in the trial ranty, gross negligence, and misrepre- senta- court proceeding. The judgment of the trial tion. We find the parties executed a Limited court is AFFIRMED. Opinion by Bell, P.J.; Warranty Agreement, which construed with Mitchell, J., and Goree, J., concur. the “New Home Limited Warranty” to which the Agreement refers, evidences the parties’ Monday, February 5, 2014 agreement to arbitrate warranty claims. We 111,082 — Melvin L. Stone and Mary Eliza- reverse the trial court’s order denying arbitra- beth Stone, Co-Trustees of the Stone Family tion of the warranty claims. Insomuch as the Trust, Blanche M. Flowers, Bruce E. Honeycutt record fails to disclose a valid agreement to and Leola K. Honeycutt, Co-Trustees of the arbitrate the remaining claims, we affirm. Bruce and Leola Honeycutt Trust, Plaintiffs/ AFFIRMED IN PART, REVERSED IN PART Appellants, vs. Payne Exploration Company, AND REMANDED. Opinion by Mitchell, J.; W.C. Payne Energy, LLC, and The Bank of Bell, P.J., and Goree, J., concur. Oklahoma, Successor Trustee of the Robert S. Bowers Residuary Trust, Defendants/Appel- lees. Appeal from the District Court of Logan County, Oklahoma. Honorable Phillip C. Cor- ley, Judge. In this action to determine whether

446 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 (Division No. 4) Monday, February 10, 2014 Wednesday, January 29, 2014 111,041 (Comp. to 110,409) — BancFirst, 111,361 — Derrick Howard, Plaintiff/Appel- Oklahoma City, Plaintiff/Appellant, vs. Con- lant, vs. Varangon Academy, Defendant/ cessions Manufacturing Co., LLC, an Oklaho- Appellee. Appeal from an order of the District ma Limited Liability Company, Hart’s Cove, Court of Cleveland County, Hon. Tracy Schu- Inc., an Oklahoma Corporation, Howard E. Tur- macher, Trial Judge, granting Defendant Var- rel and Susan E. Turrel, Husband and Wife, angon Academy’s motion for summary judg- Occupants of the Premises, GE Commercial Dis- ment. Varangon’s motion for summary judg- tribution Finance Corporation, Okla-homa State ment argues Howard could not state a prima Bank Langley Branch, Delaware County Board facie case of retaliatory discharge from employ- of County Commissioners, ex rel. Delaware ment, and even if he could, Varangon had a County Treasurer, and Concessions Manufac- legitimate, non-discriminatory reason for dis- turing Ltd Co., Defendants/Appellees. Appeal charging him. Varangon also contends that from Order of the District Court of Delaware Howard cannot state a public policy claim County, Hon. Robert G. Haney, Trial Judge, because there is a statutory remedy to protect awarding attorney fees to Defendant Hart’s the applicable public policy goal. Howard Cove, Inc., as prevailing party in its defense of a argues that questions of material fact exist pre- foreclosure action. BancFirst sought foreclosure cluding summary judgment in Varangon’s of a mortgage allegedly made by Hart’s Cove, favor and that summary judgment is improper which defended on grounds that the mortgage as a matter of law. Based on Oklahoma law, we was neither authorized nor properly executed. conclude Howard cannot establish retaliatory The district court granted summary judgment to discharge pursuant to 85 O.S. § 5(B). We further Hart’s Cove, and then awarded it fees based 15 conclude Varangon was entitled to summary O.S.2011 § 276. We reject BancFirst’s argument judgment as a matter of law on Howard’s retal- that a party who is sued in a foreclosure action iatory discharge claim pursuant to 85 O.S. § and who obtains a judgment that ends any 5(A) and on his claim resting on public policy. possibility of that foreclosure does not “pre- We therefore affirm the trial court’s decision. vail” or obtain a judgment against the foreclo- AFFIRMED. Opinion from the Court of Civil sure claim. We therefore affirm the award of fees Appeals, Division IV, by Wiseman, P.J.; Barnes, to Hart’s Cove, but do so pursuant to 42 O.S.2011 C.J., and Goodman, J., concur. § 176, which has been held to provide fees for the successful defense of a foreclosure action, Monday, February 3, 2014 and which Hart’s Cove also relied upon in its fee 110,947 — Ricky L. Sheppard, Plaintiff/ application in the trial court. AFFIRMED. Opin- Appellant, v. Justin Jones, Randall Workman, ion from the Court of Civil Appeals, Division IV, Harry Reedin, Sgt. Apala, Sgt. Williams, Sgt. by Thornbrugh, P.J.; Rapp, J., and Goodman, J., Summers, Sgt. Majors, C. Brown, Jimmy Mar- concur. tin, Chief Bryant, Chief Cotton, Sada Jones, 109,911 — Leslie Elms, Plaintiff/Appellee, Ron Parker, and Sgt. Horbat, Defendants/ vs. Richard Keck, Defendant/ Appellant. Appellees. Appeal from the District Court of Appeal from an order of the District Court of Pittsburg County, Hon. Jim D. Bland, Trial Delaware County, Hon. Robert G. Haney, Trial Judge. Plaintiff/Appellant (Inmate) appeals Judge, on a jury verdict and a decree of lien fore- the trial court’s Order awarding summary closure in favor of Plaintiff Leslie Elms. Elms judgment to Defendants/Appellees (Defen- filed the present lawsuit against Defendant Rich- dants). Full and complete exhaustion of all ard Keck to recover damages for breach of a administrative and statutory remedies on all contract to store Keck’s three watercraft at her potential claims against Defendants is a juris- Grand Lake waterfront home. Elms requested a dictional re- quirement which Inmate has failed money judgment. Stating that she had perfected to satisfy. After review of the record on appeal a notice of possessory lien on each of the water and pertinent law, we affirm the Order grant- vessels, she also requested an order from the ing summary judgment to Defendants. trial court foreclosing her possessory lien on AFFIRMED. Opinion from Court of Civil them. The jury returned a verdict in favor of Appeals, Division IV, by Barnes, C.J.; Wiseman, Elms on her claims and against Keck on his P.J., and Goodman, J., concur. counterclaims. The trial court also granted the motion to foreclose. On appeal, Keck asserts

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 447 Elms did not follow Title 42 lien procedures. the property. Bank also appeals from bench Elms asserts she held a common law posses- trial verdict finding Defendant Howard Turrel sory lien. We find that Elms’ possessory lien did not commit fraud against Bank. Defen- against Keck’s property “attached” when she, dants Concessions Manufacturing Co., LLC, while in possession of the watercraft, provided and the Turrels appeal orders that those Defen- the service of storing them on her property in dants were not entitled to damages for fraud or exchange for compensation. Keck’s watercraft for setoff against mortgages held by Bank were “properly attached at the beginning of against their respective tracts of land. As to the the case” pursuant to 42 O.S.2011 § 91A. Fur- Hart’s Cove property, the evidence is undis- ther, this statute does not require the lienor to puted that the mortgage as executed was not in file a “Notice of Possessory Lien” as one is compliance with corporate by-laws of Hart’s required to do in 42 O.S.2011 § 91. For this rea- Cove requiring board approval and signature son, any argument by Keck relating to the by two officers, and Bank’s various equitable improper filing of a notice of possessory lien arguments are unavailing under the evidence lacks merit. Keck asks us to determine whether presented. Competent evidence also supports sufficient evidence was presented to the jury to the court’s verdict in favor of Howard Turrel allow them to find an oral contract between the on Bank’s fraud claim. Defendants Conces- parties entitling Elms to storage fees. Without sions and the Turrels failed to dem-onstrate trial transcripts showing the evidence present- they suffered any detriment due to the alleged ed to the jury, we are unable to determine fraud or misrepresentation by Bank in obtain- whether the jury’s verdict was based on suffi- ing its mortgage or failing to complete all con- cient competent evidence. Because the record tingencies prior to closing the loan; therefore, before us contains no trial transcript or other summary judgment granting Bank judgment record evidence considered by the jury to review, and foreclosure on those parties’ mortgages and there is no citation to the record to support and guarantees was correct. Finding no revers- the contention of lack of evidence, we reject ible error, we affirm all of the lower court’s Keck’s argument on this issue. We reject Keck’s decisions. AFFIRMED. Opinion from the Court argument on the reasonableness of the storage of Civil Appeals, Division IV, by Thornbrugh, fees for this same reason. We cannot consider the P.J.; Rapp, J., and Goodman, J., concur. remaining issues raised in Keck’s amended petition in error but not raised or argued in his Tuesday, February 11, 2014 appellate brief, including the issue regarding 110,872 — Richard Holman, Plaintiff/Appel- the reasonableness of the trial court’s award of lee, vs. RV Rental Country, Incorporated, d/b/a attorney fees and costs. AFFIRMED. Opinion Rent-A-RV Now Nationwide, d/b/a RV Rent- from the Court of Civil Appeals, Division IV, als of Oklahoma and Rent-A-RV, LLC, and by Wiseman, P.J.; Barnes, C.J., and Goodman, Samuel Sibala, Defendant/Appellants. Pro- J., concur. ceeding to review a decision of the District 110,409 (cons. w/110,423, comp. w/111,041) Court of Tulsa County, The Hon. Dana Kuehn, — BancFirst, Oklahoma City, Plaintiff/Appel- Trial Judge. Defendant Samuel Sibala, and sev- lant/Counter-Appellee, vs. Concessions Man- eral entities with which Mr. Sibala may be ufacturing Co., LLC, an Oklahoma Limited associated, appeal the decision of the district Liability Company, Hart’s Cove, Inc., an Okla- court declaring default as a sanction for failure homa Corporation, Howard E. Turrel and to appear at a scheduling conference, and Susan E. Turrel, Husband and Wife, Occupants awarding damages, fees and costs. Sibala also of the Premises, GE Commercial Distribution appeals the court’s denial of his motion to Finance Corporation, Oklahoma State Bank Lan- vacate the judgment. On review, we find no gley Branch, Delaware County Board of County abuse of discretion in the court’s grant of default Commissioners ex rel. Delaware County Trea- judgment as a sanction pursuant to Rule 5(J). surer, Concessions Manufacturing LTD Co., However, we find that the question of whether Defendants/Appellees/Counter-Appellants. the alleged tort debt was discharged in Sibala’s Appeal from Order of the District Court of Dela- prior bankruptcy remains undecided, and the ware County, Hon. Robert G. Haney, Trial Judge. default judgment may therefore be void as to Plaintiff Bank appeals from summary judgment Sibala personally, and the associated business finding Bank’s mortgage was not valid on prop- entities involved in the bankruptcy, pursuant to erty owned by Defendant Hart’s Cove, Inc., 11 U.S.C. § 524. We further find that, if the and refusing to grant an equitable mortgage on judgment is not void due to bankruptcy, Sibala

448 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 is still entitled to a hearing on the amount of Court of Civil Appeals, Division IV, by Thorn- damages and a proper Burk determination of brugh, P.J.; Goodman, J., and Rapp, J., concur. fees. We therefore remand this case for a deter- 110,946 — The Bank of New York Trust Com- mination of these matters in the district court. pany, N.A. as Successor to JPMorgan Chase The decision of the district court is AFFIRMED Bank N.A., as Trustee, Plaintiff/Appellee, vs. IN PART, REVERSED IN PART AND REMAND- Bruce A. Hancock, Jr., a/k/a Bruce Archie ED FOR FURTHER PROCEEDINGS. Opinion Hancock, Jr., et al., Defendant/Appellant. Ap- from the Court of Civil Appeals, Division IV, peal from a decision of the District Court of by Thornbrugh, P.J.; Goodman, J., and Rapp, J., Oklahoma County, Hon. Bill Graves, Trial concur. Judge. Bruce Hancock Jr. appeals a foreclosure 110,826 — Edgar Eugene Mitchell, Plaintiff/ decision of the district court on the grounds Appellant, vs. Dawn Marie Mitchell, Defen- that Bank failed to make the required showing dant/Appellee. Appeal from a decision of the of a right to enforce the note at the time of fil- District Court of Oklahoma County, Hon. Geary ing. Hancock contends that Bank could not L. Walke, Trial Judge. Attorney Jerry Kite appeals enforce the note because: 1) it had a blank payee; the district court’s imposition of liability upon 2) it was endorsed via a “rubber stamp” rather him for funds disbursed to a client after Mr. Kite than a written signature; and 3) the person was served with a garnishment. In this case, endorsing the note was not identified as a corpo- appellee Dawn Mitchell garnished the bank rate officer. We reject the argument that these account of Edgar Mitchell to satisfy a judgment, facts divested the district court of jurisdiction. receiving approximately $13,611 from the bank. We further find that the alleged irregularity in The district court found that the bank had not the assignment of the mortgage accompanying given Edgar Mitchell the required notice and the note did not raise a jurisdictional issue, and ordered the garnished funds be reimbursed. that Hancock’s numerous bankruptcy filings did Dawn Mitchell’s counsel, Tom Cummings, not affect the court’s jurisdiction in this matter. then handed Edgar Mitchell’s counsel, Jerry The decision of the district court is AFFIRMED. Kite, a check for the garnished amount, made Opinion from the Court of Civil Appeals, Divi- out to both Edgar Mitchell and Jerry Kite. sion IV, by Thornbrugh, P.J.; Goodman, J., and Cummings also handed Kite a garnishment Rapp, J., concur. summons seeking any funds under Kite’s con- Thursday, February 13, 2014 trol that belonged to Edgar Mitchell. Kite paid the check into his trust account and disbursed 111,417 — In Re the Marriage of: Leah Hamp- the funds to his client. The court later ordered ton, Petitioner/Appellant, vs. Michael Hamp- Kite to pay the garnished funds into the court ton, Jr., Respondent/Appellee. Appeal from while a decision on Edgar Mitchell’s claim of the District Court of Oklahoma County, Hon. exemption was pending. Kite was only able to Lynn E. McGuire, Trial Judge. Leah Hampton recover $5,000 of the funds from Edgar Mitch- (Mother) appeals the trial court’s order finding ell. After the court found the funds were not her unfit and awarding custody of the minor exempt, Dawn Mitchell attempted to recover child to paternal grandparents, Michael and the missing balance from both Edgar Mitchell Pamela Hampton (collectively “Grandpar- and Mr. Kite. The court awarded Dawn Mitch- ents”). Based on our review of the record, ell a judgment of $8,068 against Kite and Mother has not demonstrated that the trial Mitchell. Kite appeals, arguing that the gar- court’s decision is contrary to law or clearly nishment addressed to him was not valid. We against the weight of the evidence. However, the find that, by paying the check into his trust court’s order impermissibly restricts Mother’s account, Mr. Kite took the possession and con- access to the courts contingent on her ability to trol of the funds necessary to support a gar- pay her own fees. The court may not create an nishment. We reject Kite’s argument that the impermissible hurdle unconstitutionally restrict- garnishment summons was invalid because ing the right of citizens to access the courts in Edgar Mitchell’s claim of exemption was pend- violation of Art. 2, § 6 of the Oklahoma Constitu- ing. We also reject the argument that Cum- tion. Accordingly, this condition is stricken from mings’ garnishment affi-davit was invalid the order. The order is affirmed in all other because Cummings knew that Edgar Mitchell respects. AFFIRMED AS MODIFIED. Opinion had claimed exemption. The decision of the from the Court of Civil Appeals, Division IV, by district court is AFFIRMED. Opinion from the Goodman, J.; Barnes, C.J., and Wiseman, P.J., concur.

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 449 Friday, February 14, 2014 pensation Court, Respondents. Petitioner’s Petition for Rehearing filed December 4, 2013 is 110,692 — Republic Fire & Casualty, Plain- DENIED. tiff/Appellant, v. Sharp Electronic Corpora- tion, Defendant/Appellee. Appeal from an Thursday, January 23, 2014 Order of the District Court of Tulsa County, Hon. Dana L. Kuehn, Trial Judge. This case 110,784 — Sharp Mortgage Company, a Lim- arises from a fire that caused damage to a ited Partnership, Petitioner/Appellant, vs. home insured by Plaintiff/Appellant (Repub- Board of Adjustment of the County of Tulsa, lic). Republic filed this subrogation action Oklahoma, Respondent/Appellee, and Holy against Defendant/Appellee (Sharp), alleg- Apostles Orthodox Christian Church, Inc., ing that a defect in a microwave oven manu- Intervening Defendant/Appellee. Appellant’s factured by Sharp caused the fire. Following a Petition for Rehearing filed December 12, 2013 jury trial, the jury rendered a unanimous ver- is DENIED. dict in favor of Sharp, and the trial court Tuesday, January 28, 2014 memorialized the jury’s verdict in its judg- ment. Republic timely filed a motion for new 110,798 — Lasalle National Bank, as Trustee trial which was denied by the trial court in for the Certificate Holders of the Mortgage the Order from which Republic appeals. Pass-Through Certificates 1998-R1, Plaintiff/ Republic requests that this Court reverse the Appellant, vs. Richard Theodore Scott, a/k/a Order and remand for new trial. However, Richard Scott and Helen Harlene Scott, a/k/a Republic chose not to provide this Court with Helen Scott, Defendants/Third-Party Plain- the transcripts or a narrative statement of the tiffs/Appellees, and Occupants of the Premis- jury trial, and we deny its request after the es, Wedgewood Homeowners Association, Inc., appellate briefing period, and four months Defendants, vs. Bank of Oklahoma, Third- after Notice of Completion of Record, that Party Defendant. Appellees’ Petition for Re- this Court order the transcripts pursuant to hearing filed December 23, 2013 is DENIED. Oklahoma Supreme Court Rule 1.28(h). We (Division No. 2) further conclude that oral argument will not Monday, November 4, 2013 materially assist our review, and we deny Republic’s motion for oral argument. As to 109,601 — City National Bank and Trust the remaining issue not voluntarily with- Company, Norman, Oklahoma, a Corporation, drawn by Republic — regarding the exclu- Plaintiff, v. Kris K. Agrawal, General Mining sion of the testimony of a purported expert Corp., Vimala Agrawal — Trustee, Agrawal witness — this Court will not presume error Minors Trust, Defendants/Appellants, and on appeal, and the appellant must affirma- Vimala S. Agrawal, Security National Bank and tively show the alleged error from the record Trust Company of Norman, Oklahoma, Trustee; on appeal. In particular, error in the admis- State of Oklahoma ex rel. Department of Trans- sion or exclusion of evidence is committed, if portation of the State of Oklahoma; Betty Car- at all, when in the course of the trial the court son, County Treasurer and Board of County rules on the matter, and the appellant must Commissioners of Cleveland County, Okla-ho- clearly point out the error in the trial court ma, Defendants, Oklahoma Department of proceedings. Because this was not accom- Mines, Defendant/Appellee, and Eric R. Dimal- plished, we must conclude the trial court did lo, as Superintendent of Insurance of the State of not abuse its discretion in denying Republic’s New York, acting as liquidator of Union Indem- motion for new trial, and we affirm the Order. nity Insurance Company, Inter-vervenor and AFFIRMED. Opinion from Court of Civil Third Party Plaintiff, v. Richard Coal Company, Appeals, Division IV, by Barnes, C.J.; Wise- Third-Party Defendant. Defendants’ Petition for man, P.J., and Goodman, J., concur. Rehearing is hereby DENIED. ORDERS DENYING REHEARING Thursday, November 14, 2013 (Division No. 1) 110,666 — Gladys Erbar and Tom Erbar, Wednesday, December 11, 2013 Plaintiffs/Appellees, vs. Rare Hospitality Inter- 111,525 — Jeremy R. Younger, Petitioner, vs. national, Inc., Bruce Sternad, Gages Steak- Reese Trailer Repair, Inc., Sentinel Insurance house, LLC, Hospitality Ventures Manage- Company, and/or Hartford Underwriters ment, LLC, Bonefish/Colorado Limited Part- Insurance Company, and the Workers’ Com- nership, Carrabba’s Broken Arrow Limited

450 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 Partnership, Carrabba’s Colorado-I Limited nette Mashunkashey-McBride, Ebony Osage Partnership, Flemings/Southmidwest I Limit- McBride, and Anthony Michael Mashunkashey, ed Partnership, and Capstar Oklahoma Bever- Appellants, vs. Sherri Berrong, Appellee. age Corporation, Defendants/Appellants, and Appellee’s Petition for Rehearing is hereby A. Aguirre LLC, et al., Additional Defendants. DENIED. Appellees’ Petition for Rehearing is hereby DENIED. 111,128 — Rodney and Lori Moss, individu- ally and as parents and next friends of M.M.M., Thursday, November 21, 2013 a minor, Plaintiffs/Appellants, vs. Douglas 111,128 — Rodney and Lori Moss, individu- Dwayne Davis, Defendant, and First Baptist ally and as parents and next friends of M.M.M., Church of Cache, First Baptist Church of Vinita, a minor, Plaintiffs/Appellants, vs. Douglas and Village Baptist Church, Defendants/ Dwayne Davis, Defendant, and First Baptist Appellees. Appellee Village Baptist Church’s Church of Cache, First Baptist Church of Vinita, Petition for Rehearing is hereby DENIED. and Village Baptist Church, Defendants/ (Division No. 3) Appellees. The Joint Motion of Appellees/ Tuesday, November 19, 2013 Defendants First Baptist Church of Vinita and First Baptist Church of Cache to Join/Adopt 109,316 — In the Matter of the Estate of Nor- Appellee/Defendant Village Baptist’s Petition magene Sellers, Deceased; John Daniel Sellers, for Rehearing is DENIED. III and Leo Gates Sellers, Appellants, vs. Jill Dew, Personal Representative of the Estate of Monday, November 25, 2013 Normagene Sellers, and Misty Michelle Davis, 111,076 — Beachner Construction Company, Personal Representative of the Estate of Terry Inc., Plaintiff/Appellant, vs. The State of Okla- Turner Sellers, Deceased, and Alysia Lu McK- homa ex rel. Office of State Finance, as successor indles, Appellees, and Sherry Paige Holuby through reorganization of Department of Cen- and Antoinette Hilton, Heirs-at-Law. Appel- tral Services, Defendant/Appellee. Appellee lants’ Motion for Rehearing and Brief in Sup- State of Oklahoma ex rel. Office of State port, filed October 14, 2013, is DENIED. Finance, as successor through reorganization Wednesday, December 18, 2013 of the Department of Central Services’ Petition for Rehearing is DENIED. 110,169 — (Comp. w/110,441 and 110,968) Paul Pemberton, Petitioner/Appellant, vs. Jus- Monday, December 16, 2013 tin Jones, James Rudek, Carl Bear, Jo Beth Har- 111,626 — International Paper Own Risk, vey, Oklahoma State Reformatory, Greer County, Petitioner, v. Galen G. Grimmett and the Work- State of Oklahoma, Respondents/Appellees. ers’ Compensation Court, Respondents. Peti- Appellant’s Petition for Rehearing and Memo- tioner’s Petition for Rehearing is hereby randum of Law, filed December 12, 2013, is DENIED. DENIED. Wednesday, January 15, 2014 110,441 — (Comp. w/110,169 and 110,968) Paul Pemberton, Petitioner/Appellant, vs. 111,444 — Carrie Oyama, Petitioner, vs. Melissa DeLacerda, Chairperson, Professional American Airlines, Respondent, and New Responsibility Commission, and Oklahoma Bar Hampshire Insurance Co., Insurance Carrier. Association, Respondents/Appellees. Appel- Petitioner’s Petition for Rehearing is hereby lant’s Petition for Rehearing and Memorandum DENIED. of Law, filed December 10, 2013, is DENIED. 111,287 — Jonell McClish, Petitioner, vs. 110,968 — (Comp. w/110,169 and 110,441) Woodarts Inc. &/or TTC Illinois, Inc., CAN Paul Pemberton, Plaintiff/Appellant, vs. Pam Insurance Group &/or Continental Casualty Dunn, Individually and in her Official Capacity Co., and The Workers’ Compensation Court, as Deputy Clerk Defendant/Appellee. Appel- Respondents. Respondents’ Petition for lant’s Petition for Rehearing and Memorandum DENIED Rehearing is hereby . of Law, filed December 12, 2013, is DENIED. 110,533 — In the Matter of the Estate of Thursday, January 23, 2014 Johnia J. Mashunkashey Jaggers, Deceased, Elizabeth Eloriee Sparks-Hamm, Malaysha 110,925 — Charles Weaver and Connie Weav- Marie Mashunkashey-Hamm, Breanna Antoi- er; John Riemer and Bonnie Riemer; Eugene E.

Vol. 85 — No. 6 — 2/22/2014 The Oklahoma Bar Journal 451 Sellmeyer and Helena L. Sellmeyer, Plaintiffs/ Miller, Respondent/Appellant. Appellee’s Peti- Appellees, vs. John Nys and Lottie Nys, Defen- tion for Rehearing is hereby DENIED. dants/Appellants. Appellants’ Combined Peti- Friday, December 13, 2013 tion for Rehearing and Brief in Support, filed January 9, 2014, is DENIED. 110,063 — Coastal Strategies Income Fund-C, a California Limited Partnership, Plaintiff/ Thursday, January 30, 2014 Appellant, v. Mewbourne Oil Company, a Del- 109,685 — Terry Moore, individually and as aware Corporation, Defendant/Appellee. Ap- next friend of Jerrit Moore, a minor, Plaintiff/ pellant’s Petition for Rehearing is hereby Appellant, vs. Robert Blackwell and Farmers DENIED. Insurance Company, Inc., Defendants/Appel- 111,728 — Sarkeys Foundation, an Oklahoma lees. Appellee’s Petition for Rehearing is here- Foundation and Corporation, Plaintiff/Appel- by DENIED. lee, v. PEC Minerals LP, Defendant/Appellant, Friday, January 31, 2014 and Chesapeake Operating, Inc., R.D. Davis & Associates, Inc., Newfield Exploration Mid- 110,608 — Gary Gray, on Oklahoma resident, Continent, Inc., and JMA Energy Company, d/b/a Gray Farms, Inc., Plaintiff/Appellant, L.L.C., Defendants. Appellant’s Petition for Re- vs. Plains Cotton Cooperative Association, a hearing is hereby DENIED. Texas corporation, Defendant/Appellee. Ap- pellant’s Petition for Rehearing and Memoran- 111,418 — Phillip Ryan Pierce, Plaintiff/Appel- dum of Law, filed December 11, 2013, is lee, vs. State of Oklahoma, Ex Rel. Department DENIED. of Public Safety, Defendant/Appellant. Appel- lee’s Petition for Rehearing is hereby DENIED. Monday, February 3, 2014 Wednesday, January 8, 2014 109,879 — Eve Cushing-Beyer, Plaintiff/ Appellant, vs. Carl W. Beyer, individually and 108,619 — Anthony Parker and Kenneth as Manager of the Beyer Family, LLC, and as Parker, Plaintiffs/Appellees, vs. Michael Gen- Trustee of the Carl W. Beyer Living Trust, Max- son, Individually and d/b/a J3 Energy, Defen- ine Helen Beyer, individually and as Trustee of dant/Appellant, and Robert E. Genson, Sr.; the Maxine Helen Beyer Living Trust and as GOG Production, LLC; Genson Family Trust Trustee of the Walter G. Beyer Living Trust, and McClain Bank, Defendants. Appellees’ Defendants/Appellees. Appellant’s Petition Petition for Rehearing is DENIED. for Rehearing and Brief, filed January 21, 2014, Friday, January 10, 2014 is DENIED. 111,327 — George Eckles and Sue Anderson, (Division No. 4) Plaintiffs/Appellees, vs. XTO Energy, Inc., a Thursday, November 14, 2013 Delaware corporation, Defendant/Appellant, 110,180 — Polaris Outdoors, Inc., DBA Road- and CGZ, LLC, an Oklahoma limited liability house Motorsports, MM & MK, LLC, Kathleen company dba Adair Land and Leasing, Defen- King, L. Morris Mauney, Plaintiffs/Appellees, dants. Appellant’s Petition for Rehearing is vs. Wendell E. Drake, Joyce Drake, Defen- hereby DENIED. dants/Appellants. Appellants’ Petition for Re- 108,538 — Sharla Helton, Plaintiff/Appellee, hearing is DENIED. vs. Allergan, Inc., Defendant/Appellant. Ap- Wednesday, November 27, 2013 pellant’s Petition for Rehearing is hereby DENIED. 111,117 — Gail Avery and John Avery, Indi- vidually and as husband and wife, Plaintiffs/ Monday, January 13, 2014 Appellants, vs. Outdoor Escapes, L.L.C., De- 110,744 — Northern Therapy and Rehabilita- fendant, and Marketplace Events, L.L.C., tion, Inc., Plaintiff/Appellant, vs. Mays House- Defendant/Appellee. Appellee’s Petition for call Home Health, Inc., d/b/a Homecall of Rehearing is DENIED. Stillwater, Inc., Defendant/Appellee. Appel- Thursday, December 12, 2013 lee’s Petition for Rehearing is hereby DENIED. 110,741 — In re the Marriage of Cindy Ann Miller, Petitioner/Appellee, and Mark Douglas

452 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 CLASSIFIED ADS

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454 The Oklahoma Bar Journal Vol. 85 — No. 6 — 2/22/2014 Patient. Understanding. Experienced.

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