Volume 84 u No. 15 u May 25, 2013 1090 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 OFFICER S & BOARD OF GOVERNORS James T. Stuart, President, Shawnee Renée DeMoss, President-Elect, Tulsa events Calendar Dietmar K. Caudle, Vice-President, Lawton Cathy M. Christensen, Immediate Past President, Oklahoma City MAY 2013 Sandee Coogan, Norman 27 OBA Closed – Memorial Day Observed Gerald C. Dennis, Antlers Robert S. Farris, Tulsa 28 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Robert D. Gifford II, Oklahoma City Kimberly Hays, Tulsa Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact ­­­­­ Douglas L. Jackson, Enid Barbara Swinton 405-713-7109 O. Chris Meyers II, Lawton D. Scott Pappas, Stillwater 29 OBA Communications Committee joint meeting with Law Day Nancy S. Parrott, Oklahoma City Committee; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa Bret A. Smith, Muskogee County Bar Center, Tulsa; Contact Dick Pryor 405-740-2944 or Richard D. Stevens, Norman Richard Vreeland 405-360-6631 Linda S. Thomas, Bartlesville Joseph M. Vorndran, Shawnee, Chairperson, OBA/Young Lawyers Division OBA Legal Intern Swearing-In Ceremony; 1:30 p.m.; Judicial Center, Oklahoma City; Contact Wanda Reece-Murray 405-416-7042 BAR Center Staff John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Jim Calloway, JUNE 2013 Director of Management Assistance Program; Craig D. Combs, Director of Administration; 4 OBA Government and Administrative Law Practice Section Susan Damron Krug, Director of Educational meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Gary Payne Programs; Beverly Petry Lewis, Administrator 405-297-2413 MCLE Commission; Carol A. Manning, Director of Communications; Travis Pickens, Ethics Counsel; 5-6 Sovereignty Symposium; 7:30 a.m.; Skirvin Hilton Hotel, 1 Park Ave., Robbin Watson, Director of Information Technology; Oklahoma City; Contact Julie Rorie 405-556-9371 Jane McConnell, Coordinator Law-related Education; Loraine Dillinder Farabow, Tommy Humphries, 6 OBA Member Services Committee meeting; 4 p.m.; Oklahoma Bar Tina Izadi, Katherine Ogden, Steven Sullins, Center, Oklahoma City with teleconference; Contact Sarah Schumacher Assistant General Counsels; Tommy Butler, Tanner 405-752-5565 Condley, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators OBA Lawyers Helping Lawyers discussion group meeting; 6 p.m.; Manni Arzola, Debbie Brink, Emily Buchanan, Office of Tom Cummings, 701 NW 13th St., Oklahoma City; RSVP to Susan Carey, Johnny Marie Floyd, Matt Gayle, Kim Reber [email protected] Dieadra Goss, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Durrel Lattimore, OBA Lawyers Helping Lawyers discussion group meeting; 7 p.m.; Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Larry Quinn, Lori Rasmussen, University of Tulsa College of Law, John Rogers Hall, 3120 E. 4th Pl., Tracy Sanders, Mark Schneidewent, Jan Rm. 206, Tulsa; RSVP to Kim Reber [email protected] Thompson, Laura Willis & Roberta Yarbrough 7 OBA Board of Editors meeting; 10 a.m.; Oklahoma Bar Center, EDITORIAL BOARD Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Carol Manning Editor in Chief, John Morris Williams, News 405-416-7016 & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Dietmar K. Caudle, Lawton; Sandee Coogan, Norman; Emily Duensing, Tulsa; Pandee Bar Center, Oklahoma City with teleconference; Contact Suzanne Heggy Ramirez, Okmulgee; Mark Ramsey, 405-556-9612 Claremore; Judge Megan Simpson, Buffalo; Joseph M. Vorndran, Shawnee; Judge Allen J. For more events go to www.okbar.org/calendar Welch, Oklahoma City; January Windrix, Poteau NOTICE of change of address (which must be The Oklahoma Bar Association’s official website: www.okbar.org in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All rights reserved. Copyright© 20082013 Oklahoma Bar Association. or ads, news stories, articles and all mail items The design of the scales and the “Oklahoma Bar Association” encircling the should be sent to the Oklahoma Bar Association, scales are trademarks of the Oklahoma Bar Association. Legal articles carried P.O. Box 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association 405-416-7000 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Toll Free 800-522-8065 FAX 405-416-7001 a month in january, February, March, April, May, August, Septem- Continuing Legal Education 405-416-7006 ber, October, November and December and bimonthly in June and Ethics Counsel 405-416-7055 July.y bbyy thethe OOklahoma BBar AAssociation,, 19011901 N. Lincoln Boulevard, General Counsel 405-416-7007 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- Law-related Education 405-416-7005 homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Lawyers Helping Lawyers 800-364-7886 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Mgmt. Assistance Program 405-416-7008 tions are $60$55 per year except for law students registered with the Mandatory CLE 405-416-7009 Oklahoma Bar Association, who may subscribe for $25. Active mem- OBJ & Communications 405-416-7004 ber subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessar- Board of Bar Examiners 405-416-7075 ily that of the Oklahoma Bar Association, or the Oklahoma Bar Oklahoma Bar Foundation 405-416-7070 Journal Board of Editors.

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table of contents May 25, 2013 • Vol. 84 • No. 15 page

1091 Events Calendar

1094 Index to Court Opinions

1095 Court of Civil Appeals Opinions

1109 In Memoriam

1111 Judicial Nominating Commission Election Candidates

1114 Sovereignty Symposium 2013

1118 Disposition of Cases Other Than by Publication

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1093 Index to Opinions of Court of Civil Appeals

2013 OK CIV APP 42 THE CITY OF OKLAHOMA CITY, Plaintiff, vs. FIRST AMERICAN TITLE & TRUST COMPANY, Defendant/Cross-Defendant/Appellee, and BURNS PAVING COMPANY, Defendant/Cross-Plaintiff/Appellant, and FIRST AMERICAN TITLE & TRUST COMPANY, Third Party Plaintiff, vs. METHVIN ENTERPRISES, INC., an Oklahoma corporation, and JERL METHVIN, individually, Third Party Defendants, and DPC INVESTMENTS, LLC, Intervenor. Case No. 110,268...... 1095

2013 OK CIV APP 40 HSRE-PEP I, LLC, a Delaware limited liability company, substituted as Plaintiff for FIRST UNITED BANK AND TRUST CO., an Oklahoma banking asso- ciation, Plaintiff/Appellee, vs. HSRE-PEP CRIMSON PARK LLC, a Delaware limited liability company, substitute as Defendant for FIRST UNITED PROPERTY HOLD- ING COMPANY, LLC, SERIES B, a series of First United Property Holding, LLC, an Oklahoma limited liability company; BENEFIT BANK, Frisco Branch; AIRTIME INC., an Oklahoma corporation; MITCHELL GEE, an individual; SAUNDRA DESELMS, Treasurer for Cleveland County, Oklahoma; and the BOARD OF COUN- TY COMMISSIONERS OF CLEVELAND COUNTY, OKLAHOMA, Defendants, and BENEFIT BANK, Plaintiff/Appellant, vs. ADUDDELL DEVELOPMENT GROUP, LLC; ODG-OU, LLC; FIRST UNITED BANK & TRUST CO.; FIRST UNITED PROP- ERTY HOLDING COMPANY, LLC, SERIES B, a series of First United Property Hold- ing Company, LLC; MITCHELL GEE d/b/a AIRTIME, INC.; GARY D. BROOKS; KENNY W. THOMAS; DAVID W. ADUDDELL; and J. GLENN RANKIN, Defen- dants. Case No. 109,777; Comp. w/110,288...... 1098

2013 OK CIV APP 41 Terry B. Noble and Cynthia N. Noble, Plaintiffs, vs. JERRY BOYD NOBLE, Defendant/Appellant, RONALD DEAN DAYTON and COREY WAYNE DAYTON, Appellees. Case No. 110,176...... 1101

2013 OK CIV APP 43 GUSTAVO LOPEZ and VALERIE LOPEZ, Plaintiffs/Appellants, vs. TODD B. ROLLINS; KATHERINE ANN ROLLINS; TODD B. ROLLINS LIVING TRUST; KATHERINE A. ROLLINS LIVING TRUST; NEWPORT APPRAISAL CO., INC.; McGRAW DAVISSON STEWART, LLC; WALTER & ASSOCIATES, INC.; LAURA HAWKINS; and BLAKE LOVELESS, Defendants/Appellees. Case No. 110,755...... 1103

1094 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 Court of Civil Appeals Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2013 OK CIV APP 42 liability by alterations to a subcontract between Principal and Subcontractor. Disputes of mate- THE CITY OF OKLAHOMA CITY, Plaintiff, rial fact as to liability of the various parties are vs. FIRST AMERICAN TITLE & TRUST unresolved. We reverse and remand for further COMPANY, Defendant/Cross-Defendant/ proceedings. Appellee, and BURNS PAVING COMPANY, Defendant/Cross-Plaintiff/Appellant, and ¶2 This case involves a dispute over a sure- FIRST AMERICAN TITLE & TRUST ty’s liability on a subdivision bond. Obligee COMPANY, Third Party Plaintiff, vs. sued Surety and Subcontractor, alleging Obli- METHVIN ENTERPRISES, INC., an gee approved Surety’s subdivision bond for Oklahoma corporation, and JERL construction of paving and storm sewer improve- METHVIN, individually, Third Party ments in Principal’s “Rio De Bella Section Two” Defendants, and DPC INVESTMENTS, LLC, residential subdivision in Oklahoma City. The Intervenor. bond was given to secure Obligee’s approval of the final plat. There is no dispute that Obligee Case No. 110,268. October 11, 2012 acted within its statutory authority in condition- APPEAL FROM THE DISTRICT COURT OF ing approval of Principal’s subdivision plat on a OKLAHOMA COUNTY, OKLAHOMA bond to ensure completion of paving and storm sewers. 11 O.S.2011 §47-114(B).1 Principal con- HONORABLE BARBARA G. SWINTON, tracted with Subcontractor to complete the pav- JUDGE ing and storm sewer improvements. Obligee REVERSED AND REMANDED FOR alleged Subcontractor did not complete the job FURTHER PROCEEDINGS and Principal failed to complete the improve- ments by the bond’s two year deadline. Mark W. Kuehling, KUEHLING SEXSON, P.C., Oklahoma City, Oklahoma, for Defendant/ ¶3 Obligee alleged Surety ignored its demand Cross-Defendant/Appellee, that it pay the amount necessary to complete the improvements, which Obligee asserted was J. Kelly Work, Oklahoma City, Oklahoma, for $254,607.75. Obligee maintained it would not Defendant/Cross-Plaintiff/Appellant. release the bond until all necessary work was Kenneth L. Buettner, Presiding Judge: completed and all bills paid. Obligee asserted a cause of action for breach of contract against ¶1 Defendant/Cross-Plaintiff/Appellant Surety. Burns Paving Company (Subcontractor) ap- peals from summary judgment granted in ¶4 Subcontractor answered and admitted favor of Defendant/Cross-Defendant/Appel- Obligee’s claims, but contended it did not com- lee First American Title & Trust Company plete the work because it was not being paid. (Surety). After Plaintiff, the City of Oklahoma Subcontractor made a cross-claim against Sure- City (Obligee), filed suit to recover on a subdi- ty for payment under the bond. vision bond given by Surety for Third-Party ¶5 Surety answered and denied Obligee’s Defendant Methvin Enterprises, Inc. (Princi- claims. Surety included a Third-Party Petition pal), Subcontractor and Surety litigated wheth- against Principal, in which it alleged Principal er Subcontractor was entitled to payment on had agreed to indemnify it for any funds it the bond from Surety. The summary judgment paid as surety. Surety denied Subcontractor’s record shows Surety claims alterations to a cross-claim, arguing Subcontractor had been subcontract exonerated its bond covering an paid in full and that the bond was exonerated. agreement between Principal and Obligee. The Surety cross-claimed against Subcontractor, rules on exoneration of a bond apply where a alleging Subcontractor failed to complete the contract between a principal and obligee has job in a workmanlike manner. Surety demand- been altered. Surety was not exonerated from

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1095 ed Subcontractor pay to have the defective Surety and certified the decision for immediate paving repaired or replaced. review pursuant to 12 O.S.2001 §994(A). ¶6 Subcontractor denied Surety’s cross-claim. ¶10 Summary judgment proceedings are Subcontractor filed its Motion for Summary governed by Rule 13, Rules for District Courts, Judgment August 11, 2011. Subcontractor 12 O.S.2011, Ch. 2, App.1. Summary judgment included 23 undisputed facts which it argued is appropriate where the record establishes no showed it was entitled to judgment as a matter substantial controversy of material fact and the of law.2 Subcontractor argued that Surety’s prevailing party is entitled to judgment as a bond was not exonerated because of an indem- matter of law. Brown v. Alliance Real Estate nification agreement between Surety and Group, 1999 OK 7, 976 P.2d 1043, 1045. Sum- Principal,3 because Subcontractor did not mary judgment is not proper where reasonable extend the time for payment under its contract minds could draw different inferences or con- with Principal, and because Surety was com- clusions from the undisputed facts. Id. Further, pensated for the bond. Subcontractor addition- we must review the evidence in the light most ally contended that its acceptance of notes and favorable to the party opposing summary mortgages from Principal was not an accord judgment. Vance v. Fed. Natl. Mortg. Assn., 1999 OK 73, 988 P.2d 1275. and satisfaction, that Subcontractor was enti- tled to recover interest from Surety, that Obli- ¶11 The parties agree Principal was unable to gee’s issuing building permits and certificates complete the project after it became insolvent. of occupancy did not impair Surety’s position, Subcontractor alleges it stopped work after and that Surety acted in bad faith towards Sub- Principal stopped paying. The only issue pre- contractor. sented in this appeal is whether Surety’s liabil- ity under the bond was exonerated by altera- ¶7 Surety filed a Cross-Motion for Summary tions to the subcontract between Subcontractor 4 Judgment September 9, 2011. Surety argued and Principal.6 that although there were issues of fact regarding the amount and quality of Subcontractor’s work, A bond to be valid, like any other contract, summary judgment in favor of Surety was nev- requires at least two contracting parties, ertheless required based on its claim the bond one called the “obligor” and the other the was exonerated. Surety contended the bond was “obligee.” More specifically, there must be exonerated because Subcontractor and Principal an obligor, who is bound to do what it is altered their subcontract by extending the date agreed shall be done, and an obligee, who payments were due and Subcontractor accept- must be a natural or artificial person, whom ing partial payments, Subcontractor allowing its the law recognizes as being the subject of mechanic’s and materialmen’s lien to lapse, rights, and who can, if there is a default, enforce the obligation against the obligor. Subcontractor and Principal agreeing to add interest to amounts not paid, Subcontractor 11 C.J.S. Bonds § 7. In this case, Principal is the accepting a note and mortgage from Principal, obligor and the City is the obligee. “A surety- and Subcontractor releasing the mortgage, all ship is the result of a three-party agreement, without Surety’s consent. whereby one party (the surety) becomes liable for the principal’s or obligor’s debt or duty to ¶8 Subcontractor filed its Reply September the third party obligee, Both the obligor-princi- 23, 2011. Subcontractor repeated its arguments pal . . . and the surety are liable to the obligee…, that its actions did not exonerate the bond and and no suretyship exists in the absence of any that its performance was approved (but not of the three parties.” Balboa Ins. Co. v. U.S. 775 accepted) by Obligee. F.2d 1158, 1160 (Fed.Cir.1985). ¶9 Following a hearing, the trial court issued ¶12 Surety contends its liability on the bond its Journal Entry of Summary Judgment Decem- was exonerated by the conduct of Principal ber 12, 2011. The court denied Subcontractor’s and Subcontractor in changing the subcontract. Motion for Summary Judgment and granted A surety is exonerated either by the principal Surety’s Cross-Motion for Summary Judgment. performing the obligation, or by conduct of the The court reserved Surety’s cross-claims against principal which prejudices the surety.7 As Subcontractor and Subcontractor’s defenses shown in the cases on which Surety relies, thereto.5 The court directed that its judgment exoneration may be found where a principal determined all of Subcontractor’s claims against and obligee change their contract.8

1096 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 A surety is ordinarily discharged from surety, to secure to the municipality the actual construction and installation of the improvements or utilities at a time and according to specifications fixed liability after the principal contract or the con- by or in accordance with the regulations of the commission, and further con- tract of suretyship is materially altered, without ditioned that the Principal will pay for all material and labor entering into the construction of the improvements. The municipality is hereby granted the the surety’s knowledge or consent. power to enforce such bond by all appropriate legal and equitable remedies. Since a surety has the right to rely on * * * the terms of the suretyship contract, the 2. Summarized, Subcontractor asserted it was undisputed that Subcontractor furnished labor, equipment, and materials for paving surety is discharged, if, without the sure- and sewer improvements pursuant to a June 4, 2007 contract with ty’s knowledge or consent, any material Principal; the work was approved by Obligee, but $187,087 in principal and $69,911.20 in interest remained due and owing for Subcontractor’s alteration is made in the suretyship con- work. Surety’s subdivision bond, approved by Obligee, required Prin- tract or the principal contract or obliga- cipal to pay all bills incurred in completion of the improvements. The tion. This is because the parties to the $517,297.16 bond gave Principal two years from May 8, 2007 to com- plete the improvements and pay subcontractors. When Principal was underlying contract may not unilaterally unable to make monthly payments, it agreed to pay interest to Subcon- increase the surety’s liability. tractor on the unpaid balance. Subcontractor filed a mechanic’s and materialmen’s lien statement July 31, 2008 and Surety was aware of the lien claim because Surety issued checks for partial payment to Subcon- 72 C.J.S., Principal and Surety, §114 (footnotes tractor. When the lien statement was about to expire, Subcontractor omitted, emphasis added). received a note and mortgage, to secure the debt owed, from Principal July 17, 2009. The note was payable on demand but the note and mort- ¶13 However, in this case, Surety complains gage were subsequently rescinded without being paid. Surety and Principal agreed to the bond March 14, 2007 and Surety received pay- of changes to the subcontract between Princi- ment of $5,172.97 for issuing the bond. Subcontractor made demand pal and Subcontractor and bases its claim for on Obligee to enforce the bond February 8, 2010 and Obligee made exoneration on those changes. Exoneration will demand on Surety October 7, 2010. Surety refused to pay and con- tended obligee issued building permits and certificates of occupancy, be found only where there are material changes which impaired Surety’s position. to the principal contract or the contract of sure- 3. Subcontractor relied on 15 O.S.2011 § 338, which provides: A guarantor is exonerated, except so far as he may be indemnified by tyship. In this case, Surety could claim exoner- the principal, if by any act of the creditor, without the consent of ation only if it showed changes in Principal’s the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the contract with Obligee or changes in the bond principal, in respect thereto, in any way impaired or suspended. agreement. Surety has not asserted either of Nothing in the record indicates Surety was indemnified. Subcontractor these. contends an indemnity agreement is sufficient to satisfy this statute. We find the bond was not exonerated, but for different reasons, explained below. ¶14 While Surety has cited many cases stat- 4. Surety disputed some of Subcontractor’s fact statements. Surety ing the rule that alteration of the underlying asserted Subcontractor’s work was not approved by Obligee and that Obligee required repair and replacement of a substantial part of the agreement will exonerate a surety, it has not work performed by Subcontractor. Surety asserted also that Subcon- cited authority allowing exoneration based on tractor was paid for its work because it accepted a note and mortgage changes to a contract other than the underlying from Principal for the amount due. Surety asserted also that Subcon- tractor is responsible for the cost of correcting the defects in its work, agreement on which the bond was made. The which Surety contended exceeded the amount Subcontractor claimed reason for the rule, to protect a surety from to be owed. Surety later asserted Subcontractor was not entitled to any payment because it altered the original obligation by adding $70,000 in exposure to a different risk than it agreed to, is interest which materially altered Surety’s obligation as surety. Finally, not implicated here. Surety denied it was liable to Subcontractor under the bond. Surety included a statement of additional material facts, including ¶15 The summary judgment record shows that Surety executed the bond for $527,297.16, which represented an engineer’s estimate plus 10%; Surety did not know Principal and Sub- the bond was not exonerated by the acts contractor entered an agreement to do the work for $226,858.80 more alleged. The record nevertheless shows dis- than the engineer’s estimate; Subcontractor agreed to complete all the improvements within 75 days and Surety reasonably expected that all putes of material fact as to the liability of the improvements would be completed by fall 2007, and Surety did not various parties. We therefore REVERSE AND receive notice of any problem until 2010; Subcontractor made no claim REMAND for further proceedings. for payment under the bond until February 8, 2010, after the housing market had deteriorated and Principal was in bankruptcy; in spring 2008, Subcontractor and Principal modified their contract by Subcon- JOPLIN, V.C.J., and GOREE, J., concur. tractor agreeing to accept partial payments upon the sale of lots; Surety did not consent to alteration of the subcontract between Sub- 1. Section 114 provides, in pertinent part (emphasis added): contractor and Principal; Subcontractor accepted a note and mortgage A. Before the commission may exercise jurisdiction over subdivision of from Principal July 17, 2009 as payment of the amount due but Subcon- land, it shall adopt regulations governing the subdivision of land tractor continued to accept partial payment from the sale of lots; within its jurisdiction. . . . Surety did not consent to a release of the mortgage or rescission of the B. The regulations on subdivision of land may include provisions as to note, and Subcontractor did not return the benefits it had received the extent to which streets and other ways shall be graded and under the note; Subcontractor’s work was defective and Obligee improved and to which water and sewer and other utility mains, pip- demanded that Surety remove and replace improvements made by ing or other facilities shall be installed as a condition precedent to the Subcontractor; and Subcontractor is responsible for repairing and approval of the plat. The regulations or practice of the commission replacing the work required by Obligee. may provide for a tentative approval of the plat previous to such 5. Surety dismissed its cross-claim without prejudice January 18, installation; but any such tentative approval shall be revocable for 2012. failure to comply with commitments on which the tentative approval 6. As noted above, Surety’s claim that Subcontractor’s work was was based, and shall not be entered on the plat. In lieu of the completion defective was reserved by the trial court and later dismissed by Surety. of any improvements and utilities prior to the final approval of the plat, the 7. “A surety is one who, at the request of another, and for the pur- commission may accept an adequate bond satisfactory to the commission, with pose of securing to him a benefit, becomes responsible for the perfor-

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1097 mance by the latter of some act in favor of a third person, or hypothe- ADUDDELL; and J. GLENN RANKIN, cates property as security therefor.” 15 O.S.2011 §371. Although the parties have cited authority applicable to sureties and guarantors, First Defendants. American acted as a surety in this case. 15 O.S.2011 §376 provides: Performance of the principal obligation, or an offer of such per- Case No. 109,777; Comp. w/110,288 formance duly made as provided in this chapter exonerates a February 8, 2013 surety. 15 O.S.2011 §377 provides: APPEAL FROM THE DISTRICT COURT OF A surety is exonerated: CLEVELAND COUNTY, OKLAHOMA 1. In like manner with a guarantor. 2. To the extent to which he is prejudiced by any act of the credi- HONORABLE TRACY SCHUMACHER, tor which would naturally prove injurious to the remedies of the surety or inconsistent with his rights, or which lessens his secu- JUDGE rity; or, 3. To the extent to which he is prejudiced by an omission of the AFFIRMED creditor to do anything, whe n required by the surety, which it is his duty to do. Rob F. Robertson, GABLE GOTWALS, Okla- 15 O.S.2011 §338 provides (emphasis added): homa City, Oklahoma, for Plaintiff/Appellee A guarantor is exonerated, except so far as he may be indemni- fied by the principal, if by any act of the creditor, without the consent HSRE-PEP I, LLC, of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the Lyle R. Nelson, ELIAS, BOOKS, BROWN & principal, in respect thereto, in any way impaired or suspended. NELSON, P.C., Oklahoma City, Oklahoma, for 8. For example, in First Enterprise Bank v. Be-Graphic, Inc., 2006 OK Defendant/Appellant Benefit Bank. CIV APP 141, 149 P.3d 1064, the Oklahoma Court of Civil Appeals noted the issue was whether the defendant had waived the statutory Kenneth L. Buettner, Presiding Judge: exoneration provisions (15 O.S.2001 §338 and §377) “which exonerates a surety from liability if the creditor alters the original obligation without ¶1 Appellant/Defendant Benefit Bank the surety’s consent.” (Emphasis added.) Surety also relies on Evatt v. Dulaney, 1915 OK 580, 151 P. 607, 51 Okla. 81, but in that case, the court appeals from the trial court’s order granting explained that the surety was exonerated as a result of changes to the summary judgment in favor of Appellee/ terms of payment included in the surety’s undertaking. In Whale v. Plaintiff HSRE-PEP I, LLC (HSRE). In this com- Rice, 1935 OK 838, 49 P.2d 737, 741, 173 Okla. 530, the court noted “the liability of the surety must be tested by determining whether the mercial mortgage foreclosure action, the trial assignment constituted an alteration of the terms of the surety contract, court determined HSRE’s mortgage lien was ….” (Emphasis added.) superior to Benefit Bank’s mortgage lien. After 2013 OK CIV APP 40 de novo review, we hold HSRE’s mortgage has first priority. Therefore, HSRE is entitled to HSRE-PEP I, LLC, a Delaware limited judgment as a matter of law, and the trial liability company, substituted as Plaintiff for court’s order is AFFIRMED. FIRST UNITED BANK AND TRUST CO., ¶2 On February 4, 2008, First United Bank an Oklahoma banking association, Plaintiff/ and Trust Company (First United) loaned Appellee, vs. HSRE-PEP CRIMSON PARK ODG-OU $25,768,000.00 for an apartment com- LLC, a Delaware limited liability company, plex in Norman, Oklahoma. The loan was substitute as Defendant for FIRST UNITED secured by a first mortgage. On June 8, 2008, PROPERTY HOLDING COMPANY, LLC, ODG-OU borrowed $1,350,000.00 from Benefit SERIES B, a series of First United Property Bank. Benefit Bank’s loan was secured by a sec- Holding, LLC, an Oklahoma limited liability ond mortgage in the apartment complex. ODG- company; BENEFIT BANK, Frisco Branch; OU defaulted on the First United loan. First AIRTIME INC., an Oklahoma corporation; United and ODG-OU entered into a settlement MITCHELL GEE, an individual; SAUNDRA agreement June 3, 2010. The settlement agree- DESELMS, Treasurer for Cleveland County, ment provided that First United or its designee Oklahoma; and the BOARD OF COUNTY would accept a special warranty deed to the COMMISSIONERS OF CLEVELAND apartment complex as full and complete settle- COUNTY, OKLAHOMA, Defendants, and ment for payment of the note, thereby releasing BENEFIT BANK, Plaintiff/Appellant, vs. ODG-OU from any and all in personam liability, ADUDDELL DEVELOPMENT GROUP, and that First United would not pursue any in LLC; ODG-OU, LLC; FIRST UNITED BANK personam liability against ODG-OU in the event & TRUST CO.; FIRST UNITED PROPERTY of a future foreclosure action. HOLDING COMPANY, LLC, SERIES B, a ¶3 Under the terms of the settlement agree- series of First United Property Holding ment, ODG-OU was to concurrently execute Company, LLC; MITCHELL GEE d/b/a and deliver a “Special Warranty Deed convey- AIRTIME, INC.; GARY D. BROOKS; ing fee simple title to the [apartment complex] KENNY W. THOMAS; DAVID W. to [First United] or its designee (the ‘Special

1098 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 Warranty Deed’), subject to those matters listed ¶6 Benefit Bank argues that because First on Exhibit ‘A’ attached hereto and made a part United’s designee FUPHC-B received a deed in hereof (the ‘Permitted Title Exceptions’).” The lieu of foreclosure “subject to” its junior lien, “Permitted Title Exceptions” listed in Exhibit A First United waived its right to foreclose. Ben- included, inter alia, Benefit Bank’s mortgage, a efit Bank relies on comment b and illustration 6 financing statement made by ODG-OU to Ben- of the Restatement (Third) of Property § 8.5 efit Bank, a mechanic’s lien, a right-of-way Mortgages (1997) to support its argument that agreement, and an agreement for a cross-access First United waived its right to foreclose by driveway easement. The issue on appeal sur- accepting the deed in lieu of foreclosure.2 Com- rounds the language “subject to those matters ment b provides, in pertinent part, that “[t]he listed on Exhibit A” in the settlement agree- mortgagee-grantee will also be deemed to have ment between ODG-OU and First United. First waived the right to foreclose when it accepts United designated First United Property Hold- title to the mortgaged real estate with actual ing Company, LLC, Series B (FUPHC-B) to knowledge of the junior lien.” Id. cmt. b, illus. receive the Special Warranty Deed from ODG- 6. Illustration 6 describes the situation where OU. The Special Warranty Deed conveying title Mortgagor borrows money from Mortgagee-1 to the apartment complex to FUPHC-B, subject and gives Mortgagee-1 a promissory note to easements, restrictive covenants, rights-of- secured by a mortgage on Blackacre. The mort- way of record, zoning ordinances, First Unit- gage is immediately recorded. Mortgagor then ed’s mortgage, and a financing statement made borrows money from Mortgagee-2 and gives by ODG-OU to FUPHC-B, was delivered to Mortgagee-2 a promissory note secured by a FUPHC-B. At that point, First United held the mortgage on Blackacre. The latter mortgage is note and mortgage and FUPHC-B owned the immediately recorded. Mortgagor defaults on apartment complex. the obligation secured by Mortgagee-1’s mort- gage. As part of an agreement between Mort- ¶4 First United filed a petition to foreclose gagor and Mortgagee-1, Mortgagor agrees to against FUPHC-B a few weeks later. Benefit deliver to Mortgagee-1 a deed to Blackacre, in Bank filed a foreclosure action against FUPHC-B return for which Mortgagee-1 releases Mort- the same day. The cases were consolidated by gagor from liability for the balance on the the trial court.1 On August 6, 2010, First United mortgage obligation. Pursuant to the agreement, sold the note and mortgage to HSRE. FUPHC-B a deed to Blackacre is delivered to Mortgagee-1. conveyed the property to HSRE-PEP Crimson Prior to Mortgagor’s conveyance to Mortgag- Park LLC (Crimson Park) through a special ee-1, the latter has actual knowledge of the exis- warranty deed the same day. On November 3, tence of Mortgagee-2’s mortgage. Mortgagee-1’s 2010, the trial court filed an order substituting mortgage is ineffective against Mortgagee-2, and parties HSRE for First United and Crimson Mortgagee-1 will not be permitted to foreclose it Park for FUPHC-B. HSRE is currently the to eliminate Mortgagee-2’s lien. Benefit Bank holder of the note and mortgage, and Crimson also relies on the Reporter’s Note that “[e]ach Park owns the apartment complex. time a deed in lieu transaction is negotiated with ¶5 HSRE and Benefit Bank both filed motions the understanding that the mortgagee will for partial summary judgment, each asserting acquire title subject to junior liens, the senior its mortgage had first priority. HSRE asserts mortgagee has waived its right to eliminate that it is undisputed its loan is secured by a those liens.” Id. (quoting Ann M. Burkhart, Free- first mortgage in the apartment complex. HSRE ing Mortgages of Merger, 40 Vand. L. Rev. 238, argues First United did not lose first priority 348-349 (1987)). Benefit Bank suggests that when ODG-OU conveyed title to the apart- because First United had knowledge of Benefit ment complex to First United’s designee, Bank’s junior lien, First United should have initi- FUPHC-B. HSRE claims that under the terms ated foreclosure proceedings rather than accept a deed in lieu of foreclosure. of the settlement agreement, ODG-OU was released from in personam liability, but First ¶7 The trial court determined it was not the United retained its in rem claim against the intent of the parties to the settlement agree- property. HSRE argues the language “subject ment to subordinate First United’s first mort- to those matters listed on Exhibit A” recog- gage to Benefit Bank’s second mortgage. The nized other liens against the property but did trial court entered summary judgment in favor not subordinate the first mortgage. of HSRE. Benefit Bank appeals.

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1099 ¶8 Summary judgment proceedings are gov- ¶10 Based on our reading of the four corners erned by Rule 13, Rules for District Courts, 42 of the settlement agreement, the language O.S.2001, Ch. 2, App.1. Summary judgment is “subject to those matters listed on Exhibit A” appropriate where the record establishes no merely recognizes the existence of liens against substantial controversy of material fact and the the property, including Benefit Bank’s mort- prevailing party is entitled to judgment as a gage. This language does not subordinate First matter of law. Brown v. Alliance Real Estate United’s first mortgage. First United did not Group, 1999 OK 7, ¶ 7, 976 P.2d 1043, 1045. waive its right to foreclose the interests of third Where the facts are not disputed, an appeal parties. Waiver is the voluntary and intentional presents only a question of law. Jones v. Purcell relinquishment of a known right. Barringer v. Investments, LLC, 2010 OK CIV APP 15, ¶ 2, 231 Baptist Healthcare of Oklahoma, 2001 OK 29, ¶ 22, P.3d 706, 708. The parties agree on the facts 22 P.3d 695, 700-701 (citing Faulkenberry v. Kan- material to this dispute; however, the parties sas City Southern Ry. Co., 1979 OK 142, 602 P.2d do not agree on the meaning of the language 203, 206-207). The doctrine is essentially a mat- “subject to those matters listed on Exhibit A” in ter of intention, focusing on the intent of the the settlement agreement between ODG-OU party against whom waiver is asserted. Barrin- and First United. The meaning assigned by the ger, 2001 OK 29, ¶ 22, 22 P.3d at 701 (citing trial court to a contract is a question of law. Archer v. Wedderien, 1968 OK 186, 446 P.2d 43; May v. Mid-Century Ins. Co., 2006 OK 100, ¶ 22, State ex rel. Gaines v. Beaver, 1945 OK 318, 166 151 P.3d 132, 140. Questions of law are reviewed P.2d 776). The settlement agreement contem- de novo. Id. plates the mortgagee bringing a foreclosure action in the future: ¶9 Benefit Bank argues fee simple title “sub- ject to” Benefit Bank’s mortgage means fee 1.01.2 Release and Covenant Not to Sue. Mort- simple title “subordinate to” Benefit Bank’s gagee hereby remises, releases and forever mortgage. HSRE argues “subject to” merely discharges Mortgagor and Guarantors . . . recognizes that there are other liens against the of and from any and all claims, causes of property. According to the Oklahoma Statutes action, suits, controversies, torts and and the Supreme Court of Oklahoma: demands whatsoever involving in person- am liability Mortgagee heretofore had or The intent of the parties at the time of the now has by reason of the Note, the Security contract’s formation, as expressed within Documents, and the Guarantees or other- the four corners of the document, controls wise arising in connection with the Project the meaning of the written contract. Intent . . . or the loan transaction evidenced by the must be discerned from the entire instru- Security Documents. Mortgagee agrees that ment taken as a whole. Where a contract is upon any subsequent determination that it is complete in itself and, as viewed in its necessary, advisable or appropriate to institute entirety, contains clear and explicit lan- a foreclosure action in order to foreclose the guage leaving it free of ambiguity, its lan- interest of any third party, Mortgagee shall not guage is the only legitimate evidence of seek an in personam judgment or deficiency what the parties intended. judgment against Mortgagor or Guarantors. It Bank of Oklahoma, N.A. v. Red Arrow Marina is expressly understood and agreed be- Sales & Service, Inc., 2009 OK 77, ¶ 35, 224 P.3d tween the parties hereto that any such legal 685, 698-699 (footnotes omitted); see 15 O.S. §§ proceeding shall be in rem only and with 151-178. We note that Benefit Bank was not a respect to the Project and the other real and party to the settlement agreement. First United personal property securing payment of the and ODG-OU were the parties to the settle- Note, subject to the provisions of Article VII hereof. ment agreement. The intent of First United and ODG-OU at the time of the contract’s forma- First United did not intentionally relinquish tion, as expressed in the four corners of the its right to foreclose the interests of third par- document, controls the meaning of the settle- ties. As a result, First United’s first mortgage ment agreement. The settlement agreement was not subordinated to Benefit Bank’s sec- contains clear and explicit language free of ond mortgage. ambiguity. Therefore, the language in the set- ¶11 AFFIRMED. tlement agreement is the only legitimate evi- dence of what the parties intended. JOPLIN, C.J., and BELL, J., concur.

1100 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 1. Case No. CJ-2010-1220 and Case No. CJ-2010-1221 were consoli- Confirm and a Notice of Exercise of Right to dated. The trial court order in Case No. CJ-2010-1220 is being appealed. Redemption. 2. The Restatement (Third) of Property § 8.5 Mortgages pro- vides: “The doctrine of merger does not apply to mortgages or affect ¶4 After a hearing, the trial court denied the enforceability of a mortgage obligation.” Defendant’s Objection and asserted Right of 2013 OK CIV APP 41 Redemption, and a sheriff’s deed issued to Appellees. Defendant now appeals, and com- Terry B. Noble and Cynthia N. Noble, plains the trial court erred in denying him his Plaintiffs, vs. JERRY BOYD NOBLE, asserted right of redemption. Defendant/Appellant, RONALD DEAN DAYTON and COREY WAYNE DAYTON, ¶5 Partition of real estate by sheriff’s sale is governed by statute, and an action to partition Appellees. by sale is commenced by filing of a petition Case No. 110,176. January 31, 2013 describing “the property and the respective interests of the owners thereof, if known.” 12 APPEAL FROM THE DISTRICT COURT OF O.S. §1501.1(A). “The answers of the defen- MAJOR COUNTY, OKLAHOMA dants must state, among other things, the HONORABLE TIMOTHY HAWORTH, amount and nature of their respective inter- JUDGE ests[; t]hey may also deny the interests of any of the plaintiffs, or any of the defendants.” 12 AFFIRMED O.S. §1504. “After the interests of all the parties James C. Peck, Judith L. Morgan,Peck & Mor- shall have been ascertained, the court shall gan, Oklahoma City, Oklahoma, for Appellant, make an order specifying the interests of the respective parties, and directing partition to be John W. McCue, II, Fairview, Oklahoma, for made accordingly.” 12 O.S. §1505. “Upon mak- Appellees. ing such order, the court shall appoint three Larry Joplin, Chief Judge: commissioners to make partition into the req- uisite number of shares.” 12 O.S. §1506. “The ¶1 Defendant/Appellant Jerry Boyd Noble commissioners shall make partition of the seeks review of the trial court’s order confirm- property among the parties according to their ing the sheriff’s sale of property to Appellees respective interests, if such partition can be Ronald Dean Dayton and Corey Wayne Dayton made without manifest injury[,] [b]ut if such in the action for partition commenced by Plain- partition cannot be made, the commissioners tiffs Terry B. Noble and Cynthia N. Noble. In this shall make a valuation and appraisement of appeal, Defendant asserts the trial court erred in the property[,] [and] [t]hey shall make a report denying his prayer to redeem the property prior of their proceedings to the court, forthwith.” 12 to confirmation of the sheriff’s sale. O.S. §1509. “If partition be made by the com- missioners, and no exceptions are filed to their ¶2 Plaintiffs and Defendant inherited eight report, the court shall render judgment that hundred eighty acres of real property in Major such partition be and remain firm and effectual County, Oklahoma, from their grandfather. forever.” 12 O.S. §1511. When they could not agree to a partition of the property in kind, Plaintiffs commenced the ¶6 “If partition cannot be made, and the instant action. The trial court appointed com- property shall have been valued and appraised, missioners to appraise the property, directed any one or more of the parties may elect to take sale of the property by the sheriff for not less the same at the appraisement, and the court than two-thirds of the appraised value, and may direct the sheriff to make a deed to the ordered a division of the proceeds among the party or parties so electing, on payment to the Plaintiffs and Defendant. other parties of their proportion of the appraised value.” 12 O.S. §1512. “If none of the parties ¶3 The commissioners returned their report elect to take the property at the valuation, or if valuing the property at $528,000.00, and nei- several of the parties elect to take the same at ther Plaintiffs nor Defendant objected to the the valuation, in opposition to each other, the commissioners’ report. Appellees purchased court shall make an order directing the sheriff the property at sheriff’s sale for $378,400.00. of the county to sell the same, in the same man- Plaintiffs filed a motion to confirm the sale. ner as in sales of real estate on execution; but Prior to hearing on the motion to confirm, no sale shall be made at less than two-thirds Defendant filed his Objection to Motion to (2/3) of the valuation placed upon the property

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1101 by the commissioners.” 12 O.S. §1513. “The ¶10 In a partition action, the right to redemp- sheriff shall make return of his proceedings to tion lies, if at all, only in the presence of statu- the court, and if the sale made by him shall be tory authority and the existence of a debtor- approved by the court, the sheriff shall execute creditor relationship. 30 Am. Jur. 2d Executions, a deed to the purchaser, upon the payment of Etc. §363 (Westlaw 2012)4; 59A Am. Jur. 2d Par- the purchase money, or securing the same to be tition §49 (Westlaw 2012)5; 76 Am. Jur. 2d Trusts paid, in such manner as the court shall direct.” §162 (Westlaw 2012)6; 86 C.J.S. Tenancy in 12 O.S. §1514. “The court making partition shall Common §51 (Westlaw 2012).7 tax the costs, attorney’s fees and expenses which ¶11 In this respect, absent Oklahoma statu- may accrue in the action, and apportion the tory authority granting the right to redemption same among the parties, according to their and the existence of a debtor-creditor relation- respective interests, and may award execution ship between the partitioner and purchaser at therefor, as in other cases.” 12 O.S. §1515. “The sheriff’s sale, we cannot say the trial court court shall have full power to make any order, erred in denying Defendant’s request to not inconsistent with the provisions of this arti- redeem. As a practical matter, one co-owner of cle, that may be necessary to make a just and property to be partitioned by sale has no more equitable partition between the parties, and to superior claim to possession of the whole par- secure their respective interests.” 12 O.S. §1516. cel than any other co-owner, whereas in the ¶7 Although this statutory regime has been case of a mortgage foreclosure or tax sale, one on the books since statehood, the provisions might reasonably argue that the owner of the are entirely silent on the issue of redemption. property sold in satisfaction of a mortgage or Furthermore, the parties neither cite, nor do we tax debt ought to be afforded the right to res- find, any Oklahoma cases addressing the pro- cue his property from loss by satisfying the priety of redemption in an action for partition debt for which sale was ordered. Defendant by sale. clearly does not stand in the same position vis- a-vis the property partitioned by sale as does a ¶8 Defendant nevertheless argues by analogy mortgagor or tax debtor vis-a-vis the property that, in an action for the forced sale of property sold in satisfaction of a debt or tax burden. In in satisfaction of a mortgage, redemption is a short, there is no Oklahoma legal authority favored, substantive legal right which lasts recognizing the right of redemption in a parti- until confirmation of the sale. Sooner Federal Sav. tion action. and Loan Ass’n v. Oklahoma Cent. Credit Union, 1989 OK 170, ¶11, 790 P.2d 526, 529.1 Further- ¶12 As a matter of equity, the legislature more, says Defendant, Oklahoma law also rec- granted the trial court broad discretion “to ognizes the equitable right of redemption. Sooner make any order, not inconsistent with the pro- Federal Sav. and Loan Ass’n, 1989 OK 170, ¶12, 790 visions of this article, that may be necessary to P.2d at 529.2 The Defendant points out that, so, make a just and equitable partition between too, in tax sales is the right of redemption the parties, and to secure their respective inter- assured. 68 O.S. Supp. 2009 §3113.3 ests.” So, while this broad equitable discretion would clearly encompass the power to grant a ¶9 Appellees respond, and first point out claim for redemption by one co-owner of prop- that the Oklahoma legislature made no statu- erty partitioned by sale, this broad equitable tory provision for redemption in partition discretion in no way requires the exercise of actions as it did in actions for foreclosure of a that power when the court is confronted with a security interest or the satisfaction of a tax bur- redemption plea in an action for partition by den, and that the legislature’s choice in this sale. Defendant offers no compelling argument respect evinces the legislature’s intent to treat demonstrating an abuse of this broad discre- actions for partition by sale differently from tion by the trial court in the present case for actions for forced sale in satisfaction of a debt refusing to grant his plea to redeem. or tax. Appellees argue secondly, that the poli- cy underlying redemption in mortgage foreclo- ¶13 Appellees in their brief request an award sures and tax sales, i.e., the loss of real property of appellate attorney’s fees under the frivolous without adequate compensation, is entirely appeal provisions of 20 O.S. §15.1. However, absent in an action for partition where the given the lack of a precedential pronounce- owners of property partitioned by sheriff’s sale ment on the issue of redemption in partition are entitled to a proportionate share of the sale actions, we are hesitant to characterize Defen- proceeds. dant’s appeal as wholly without merit under

1102 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 §15.1 as to warrant an award of appellate attor- 2013 OK CIV APP 43 ney’s fees under that section. GUSTAVO LOPEZ and VALERIE LOPEZ, ¶14 The order of the trial court granting the Plaintiffs/Appellants, vs. TODD B. Plaintiffs’ Motion to Confirm and denying ROLLINS; KATHERINE ANN ROLLINS; Defendant’s plea to redeem is AFFIRMED. TODD B. ROLLINS LIVING TRUST; Appellees’ prayer for an award of attorney’s KATHERINE A. ROLLINS LIVING TRUST; fees under 20 O.S. §15.1 is denied. NEWPORT APPRAISAL CO., INC.; McGRAW DAVISSON STEWART, LLC; BUETTNER, P.J., and BELL, J., concur. WALTER & ASSOCIATES, INC.; LAURA

1. “According to [42 O.S. §18,] ‘[e]very person having an interest in HAWKINS; and BLAKE LOVELESS, property subject to a lien, has a right to redeem it from the lien, at any Defendants/Appellees. time after the claim is due, and before his right of redemption is fore- closed.’ The redemptive right is not extinguished at the time of sale but Case No. 110,755. February 8, 2013 rather when the order of sale is confirmed.” (Footnotes omitted.) 2. “[T]he equitable right of redemption belongs to one who has an APPEAL FROM THE DISTRICT COURT OF interest in the premises that would be lost on foreclosure or to one who owns the mortgagor’s equity of redemption or any subsisting interest TULSA COUNTY, OKLAHOMA therein by privity of title acquired by purchase, inheritance or other- wise. A borrower or any other person (i.e., subordinate lender, owner) HONORABLE DAMON H. CANTRELL, having an interest subject to a lien has a right of redemption that is not extinguished at the time of sale but extends until the order of sale is JUDGE confirmed. This is so because by statute a judicial sale on foreclosure is neither conclusive nor binding in the sense of transferring legal title to AFFIRMED IN PART, REVERSED IN PART the purchaser until it is effectively confirmed.” AND REMANDED 3. “The owner of any real estate, or any person having a legal or equitable interest therein, may redeem the same at any time before the William C. Searcy, Kenneth E. Crump, Jr., BAR- execution of a deed of conveyance therefor by the county treasurer by paying to the county treasurer the sum which was originally delinquent BER & BARTZ, Tulsa, Oklahoma, for Plain- including interest at the lawful rate as provided in Section 2913 of this tiffs/Appellants, title and such additional costs as may have accrued; provided, that minors or incapacitated or partially incapacitated persons may redeem BRIAN T. ASPAN, Tulsa Oklahoma, for Defen- from taxes any real property belonging to them within one (1) year after the expiration of such disability, with interest and penalty at not more dants/Appellees Todd B. Rollins, Katherine than ten percent (10%) per annum. The term incapacitated as used in this Ann Rollins, Todd B. Rollins Living Trust, and section relates to mental incapacitation only, physical disability is not covered under this term or this section.” (Footnotes omitted.) Katherine A. Rollins Living Trust, 4. “Ordinarily, statutory authority to redeem property sold under execution is granted to the judgment debtor or the debtor’s representa- Joseph R. Farris, FELDMAN FRANDEN WOOD- tive or successor in interest. If a party claiming to be the successor in ARD & FARRIS, Tulsa, Oklahoma, for Defen- interest to the judgment debtor’s title can demonstrate to the court that it legally succeeded to the debtor’s title, the successor is entitled to dant/Appellee Newport Appraisal Co., Inc., redeem and the creditor is entitled only to the moneys due a creditor as provided by the applicable redemption statute. Robert R. Peters II, Lauren A. Pierce, HEROUX It has been held that a judgment debtor has standing to seek to & HELTON, PLLC, Tulsa, Oklahoma, for De- redeem property sold at an execution sale after he or she had con- veyed his or her right to redeem to a third party, at least where the fendants/Appellees McGraw Davisson Stew- execution sale did not fully satisfy the judgment against the debtor.” art, LLC and Laura Hawkins, (Footnotes omitted.) 5. “One merely having a judgment lien on the undivided interest of Jennifer L. Struble, SECREST, HILL, BUTLER a tenant in common of real estate is not a joint owner or tenant in com- mon of the property who may seek partition. Instead, there must be an & SECREST, Tulsa, Oklahoma, for Defendants/ execution and sale, and the time given to the judgment debtor to redeem Appellees Walter & Associates, Inc. and Blake his or her property must also expire. The judgment creditor’s right to partition is affected by statutes exempting certain of the debtor’s prop- Loveless. erty interests from execution. However, under a particular statute, a judgment lien creditor may compel joint tenants with the right of survi- Kenneth L. Buettner, Presiding Judge: vorship to partition their property for the purpose of satisfying a judg- ment against one of the co-owners.” (Footnotes omitted.) ¶1 Plaintiffs/Appellants Gustavo Lopez and 6. “A resulting trust may exist in connection with an agreement to bid in or purchase for a person having an interest in or lien on property Valerie Lopez (Buyers) appeal the trial court’s sold at a judicial, partition, or similar sale, or in connection with an agree- order granting summary judgment in favor of ment to redeem and hold property for the owner.” (Footnotes omitted.) Defendants/Appellees Todd B. Rollins and 7. “Under some statutes, a tenant in common who redeems, for the benefit of all, the common property from a tax sale and who also recovers Katherine Ann Rollins, Todd B. Rollins Living the proceeds from a sale of timber taken from the land and rent stands in Trust, Katherine A. Rollins Living Trust (col- the position of a trustee for the co-tenants with respect to the proceeds from the timber and the rent. Under other statutes, a tenant in common lectively, Sellers), Newport Appraisal Co., Inc., who redeems the common property from a mortgage foreclosure sale has McGraw Davisson Stewart, LLC (McGraw been held the owner of the rents and profits from the property until the other co-tenants have taken due and proper steps to participate in the Davisson), Laura Hawkins, Walter & Associ- redemption. Where the other co-tenants take proper steps to avail them- ates, Inc., and Blake Loveless. After de novo selves of the redemption by making, or offering to make, their propor- tionate contribution to the redemption of the property, the tenant who review, we hold that Newport is entitled to redeemed must account to the other co-tenants for the rents and profits judgment as a matter of law as to Buyers’ neg- he or she received from the property.” (Footnotes omitted.) ligence claim. We further hold that Sellers,

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1103 McGraw Davisson, Hawkins, Walter & Associ- registered professional engineer, licensed ates, and Loveless are not entitled to judgment architect, professional craftsman, and/or as a matter of law as to Buyers’ negligent mis- any other person Buyer deems qualified, to representation and fraud claims. There is a conduct any and all investigations, inspec- genuine dispute as to whether the Sellers and tions, and reviews. Buyer’s investigations, Brokers/Realtors represented the square foot- inspections, and reviews may include, but age of the house reasonably, recklessly, or with not be limited to, the following: intentional dishonesty. The order of the trial . . . court is AFFIRMED IN PART, REVERSED IN PART, and REMANDED. 11) Square Footage. Buyer shall not rely on any quoted square footage and shall have ¶2 Prior to listing their house for sale, Sellers the right to measure the Property. hired Suzanne Bloyed to conduct an appraisal. Bloyed determined the house contained 5,053 Buyers’ lending institution required that New- square feet of liveable space. Sellers engaged port Appraisal conduct an exterior-only ap- the services of Laura Hawkins, a real estate praisal of the property. Newport did not enter licensee employed by McGraw Davisson. the home or take its own measurements. Rather, McGraw Davisson was the listing transaction Newport consulted Bloyed and used her square broker for the Sellers, and the house was co- footage calculation of 5,053 square feet. Prior to listed with Blake Loveless, a real estate licensee closing, Buyer Valerie Lopez called the lending employed by Walter & Associates. At the time institution to confirm the appraised value was the house was listed for sale, the Tulsa County satisfactory for the loan, and the lending institu- Assessor reported the house contained 4,614 tion confirmed it was. Buyers closed on the pur- square feet. When Hawkins and Loveless asked chase November 15, 2007. Sellers about the square footage discrepancy ¶4 In April 2009, the Tulsa County Assessor between the appraisal and the county asses- reassessed the value of the house and reported sor’s records, Sellers explained the discrepancy the amount of livable space was 4,130 square was due to an addition they built onto the feet. Buyers had their own appraisal conducted home. Hawkins created the MLS listing using by Larry A. Stotts, who determined the amount the square footage from the Bloyed appraisal. of liveable space was 4,383 square feet. Buyers The MLS listing described the square footage instituted this action against Sellers, McGraw as “5,053 / CH,” meaning 5,053 per courthouse Davisson, Hawkins, Walter & Associates, and records. The MLS listing stated that “[i]nfor- Loveless for fraud and negligent misrepresen- mation is believed to be accurate but not guar- tation. Buyers also sued Sellers for breach of anteed.” Hawkins also created marketing contract and McGraw Davisson, Hawkins, materials for prospective buyers which de- Walter & Associates, and Loveless (collectively, scribed the square footage as “5,053 sq. ft. per Brokers/Realtors) for violations of the Real appraisal” and stated that “[i]nformation Estate License Code. Buyers sued Newport for deemed reliable, but not guaranteed.” Loveless negligence. Buyers contend they relied on the created marketing materials which described the collective representations of all Appellees in square footage as “5,053 square feet per court- deciding to purchase the house, and they house records,” and stated that “[a]lthough the would not have purchased it if they had known information contained herein has been furnished that the square footage was less than 5,053 by sources deemed reliable, none of such infor- square feet. All parties filed motions for sum- mation has been verified and no representation, mary judgment or partial summary judgment. either express or implied, is made as to the accuracy thereof.” The courthouse records did ¶5 The trial court denied summary judgment not indicate the house contained 5,053 square for Buyers and granted summary judgment in feet of liveable space. favor of all Appellees. The trial court deter- mined that the Residential Property Condition ¶3 Buyers entered into a contract to purchase Disclosure Act (RPCDA), 60 O.S.Supp.2003 §§ the house September 8, 2007. The Oklahoma 831-839, applied to representations of square Uniform Contract of Sale of Real Estate entered footage, because the RPCDA was “the exclu- into contained the following provision: sive vehicle for recovery where misinformation Buyer, at Buyer’s expense, shall have the is communicated in the sale of residential right to enter upon the Property, together property.” The trial court found that because with an Oklahoma licensed Home Inspector, Buyers had not asserted claims under the

1104 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 RPCDA, Sellers and Brokers/Realtors were tion or damage, major fire or tornado damage, entitled to judgment as a matter of law. The land use matters, existence of hazardous mate- trial court also granted summary judgment in rials and other conditions of environmental favor of Newport, because there was no evi- impact, existence of prior manufacturing of dence that Buyers relied on the square footage methamphetamine, any other defects known reported in Newport’s appraisal before pur- to the seller, and other matters the Oklahoma chasing the house. Buyers appeal. Real Estate Commission deems appropriate. 60 O.S. § 833(B)(1)(a)-(j). The remedies section of ¶6 We review the trial court’s grant of sum- the RPCDA provides, in pertinent part: mary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. We, like A. The purchaser may recover in a civil the trial court, will examine the pleadings and action only in the event of any of the fol- evidentiary materials submitted by the parties lowing: to determine if there is a genuine issue of mate- rial fact. Id. Summary judgment proceedings are 1. The failure of the seller to provide to the governed by Rule 13, Rules for District Courts, purchaser a disclaimer statement or a dis- 12 O.S.2011, Ch. 2, App. Summary judgment is closure statement and any amendment appropriate where the record establishes no sub- prior to acceptance of an offer to purchase; stantial controversy of material fact and the 2. The failure of the seller to disclose in the prevailing party is entitled to judgment as a mat- disclosure statement or any amendment ter of law. Brown v. Alliance Real Estate Group, provided to the purchaser a defect which 1999 OK 7, ¶ 7, 976 P.2d 1043, 1045. Summary was actually known to the seller prior to judgment is not proper where reasonable minds acceptance of an offer to purchase; or could draw different inferences or conclusions from the undisputed facts. Id. Further, we must 3. The failure of the real estate licensee to review the evidence in the light most favorable disclose to the purchaser any defects in the to the party opposing summary judgment. Vance property actually known to the real estate v. Fed. Nat’l Mortgage Ass’n, 1999 OK 73, ¶ 6, 988 licensee prior to acceptance of an offer to P.2d 1275, 1278. purchase and which were not included in the disclosure statement or any amend- ¶7 The first issue is whether the RPCDA pro- ment provided to the purchaser. vides the sole and exclusive remedy for mis- representations of square footage in the sale of B. The sole and exclusive civil remedy at residential property. Issues of statutory con- common law or otherwise for a failure under struction are questions of law to be reviewed de subsection A of this section by the seller or novo, and appellate courts exercise plenary, the real estate licensee shall be an action for independent, and non-deferential authority. actual damages, including the cost of repair- Welch v. Crow, 2009 OK 20, ¶ 10, 206 P.3d 599, ing the defect, suffered by the purchaser as a 603. In cases requiring statutory construction, result of a defect existing in the property as the cardinal rule is to ascertain and give effect of the date of acceptance by the seller of an to the intent of the Legislature. Id. The words of offer to purchase and shall not include the a statute will be given a plain and ordinary remedy of exemplary damages. meaning, unless it is contrary to the purpose . . . and intent of the statute considered as a whole. Naylor v. Petuskey, 1992 OK 88, ¶ 4, 834 P.2d F. This act applies to, regulates and deter- 439, 440. mines rights, duties, obligations and reme- dies at common law or otherwise of the ¶8 According to the RPCDA, a seller of prop- seller, the real estate licensee and the pur- erty located in Oklahoma shall deliver to the chaser with respect to disclosure of defects purchaser of such property a written property in property and supplants and abrogates disclaimer statement or a written property con- all common law liability, rights, duties, dition disclosure statement. See 60 O.S. § 833(A) obligations and remedies therefore. (1)-(2). The property condition disclosure state- ment shall include a statement of whether the 60 O.S. § 837(A)-(B), (F). Sellers provided to seller has actual knowledge of defects or infor- Buyers a disclosure statement pursuant to § mation related to water and sewer systems, 837(A)(1). The question presented is whether structural systems, plumbing, electric, heating failure to disclose the discrepancy between the and air conditioning systems, termite infesta- square footage in the Bloyed appraisal and the

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1105 Tulsa County Assessor’s records was a defect duced by the Oklahoma Real Estate Commis- which was actually known to the Sellers or sion does not include a disclosure of square Brokers/Realtors prior to the acceptance of the footage. The buyer may bring a civil action offer to purchase. See 60 O.S. § 837(A)(2)-(3). If under the RPCDA only if the seller or real the representation of square footage comes estate licensee fails to disclose in the disclosure within § 837(A), the RPCDA provides the sole statement a defect actually known to the seller and exclusive remedy available to Buyers. See or real estate licensee. See 60 O.S. § 837(A) 60 O.S. § 837(B). (2)-(3). The RPCDA defines “defect” as “a con- dition, malfunction or problem that would ¶9 Sellers and Brokers/Realtors argue and have a materially adverse effect on the mone- the trial court agreed that the RPCDA is a tary value of the property, or that would impair buyer’s exclusive remedy for the misrepresen- the health or safety of future occupants of the tation of square footage. This argument is property.” 60 O.S. § 832(9). According to § 837, based on the Oklahoma Supreme Court’s deci- the sole and exclusive remedy for a failure to sion in White v. Lim, 2009 OK 79, 224 P.3d 679. disclose a defect actually known to the seller or Sellers and Brokers/Realtors rely on the Court’s real estate licensee “shall be an action for actu- broad concluding statement that, “[t]he Legis- al damages, including the cost of repairing the lature’s intent that the [RPCDA] be the exclu- defect.” 60 O.S. § 837(B) (emphasis added). Fail- sive vehicle for recovery where misinformation ure to disclose a discrepancy in square footage is communicated in the sale of residential measurements is not a condition, malfunction property is clearly stated in the amendatory or problem that can be repaired. Square foot- language of [the RPCDA].” Id. ¶ 17, at 685. age is not contemplated as a condition that ¶10 The Court’s statement must be read in requires disclosure under the RPCDA, and context. After the buyers in White discovered inaccurate square footage is not a defect that severe termite damage, they sued the sellers can be repaired. Therefore, we hold (1) that and broker for misrepresentation of the condi- square footage is not a required disclosure tion of the property. See id. ¶ 4, at 682. The under the RPCDA, and (2) that the RPCDA is RPCDA clearly requires that the condition dis- not the sole and exclusive remedy for the mis- closure statement include whether the seller representation of square footage. has actual knowledge of termite infestation or ¶12 The next issue is whether there is a genu- damage. See 60 O.S. § 833(B)(1)(d). The issue in ine dispute of material fact as to the negligent White was not whether termite damage came misrepresentation and fraud claims against within the purview of the RPCDA. The issue Sellers and Brokers/Realtors. Oklahoma has was whether the buyers could bring a common adopted the Restatement (Second) of Torts law action independent of the RPCDA and § 552 for negligent misrepresentation: recover punitive damages. See White, 2009 OK 79, ¶¶ 4, 9, 224 P.3d at 682-683. The Court held One who, in the course of his business, that “the mandatory, clear, and unmistakable profession or employment, or in any other language of Title 60 O.S.Supp.2003 § 837 limits transaction in which he has a pecuniary the right of a purchaser to recover for failure to interest, supplies false information for the disclose known defects in residential property guidance of others in their business transac- to those provided in the [RPCDA]” and, there- tions, is subject to liability for pecuniary loss fore, buyers were limited to actual damages.1 caused to them by their justifiable reliance The RPCDA is the sole and exclusive remedy upon the information, if he fails to exercise where misinformation is communicated in the reasonable care or competence in obtaining sale of residential property, but only when that or communicating the information. misinformation relates to defects or matters See, e.g., Stroud v. Arthur Andersen & Co., 2001 listed in 60 O.S. § 833(B)(1). The RPCDA only OK 76, ¶ 34, 37 P.3d 783, 793-794. The elements provides the sole and exclusive remedy for of fraud are: 1) a false material misrepresenta- misinformation contemplated in the Act. Unlike tion, 2) made as a positive assertion which is White, the issue here is whether a discrepancy either known to be false or is made recklessly in measurements of square footage comes without knowledge of the truth, 3) with the within the purview of the RPCDA. intention that it be acted upon, and 4) which is ¶11 Square footage is not one of the disclo- relied on by the other party to his or her own sures required by 60 O.S. § 833. The Residential detriment. See Bowman v. Presley, 2009 OK 48, ¶ Property Condition Disclosure Statement pro- 13, 212 P.3d 1210, 1217-18. We hold that one

1106 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 could infer negligent misrepresentation and ably, recklessly, or with intentional dishonesty fraud from the Sellers and Brokers/Realtors’ must be resolved by the trier of fact. failure to disclose the square footage discrepan- Id. ¶ 27, at 1221 (emphasis added). The Court cy between the Bloyed appraisal and the county summarized its holding: assessor’s records.2 Sellers admit material facts are in dispute, and whether Brokers/Realtors’ Buyers of real property may rely on posi- representations of square footage were reason- tive representations made by realtors and able, reckless, or made with intentional dishon- sellers about the property’s size. Represen- esty is a question of fact for the jury. Therefore, tations of the size of real property are state- Sellers and Brokers/Realtors are not entitled to ments of material fact, not expressions of judgment as a matter of law. opinion, and a buyer need not conduct a separate investigation to ascertain their ¶13 Sellers admitted in their Response to truth. If the buyer later alleges fraudulent Buyers’ Counter Motion for Partial Summary misrepresentation against the realtor or Judgment that if they were not entitled to sum- seller, questions of whether the buyer was in mary judgment based upon the RPCDA, Buyers fact deceived and suffered detriment because of were not entitled to summary judgment because the misrepresentation must be decided by the the elements of negligent misrepresentation and trier of fact. A real estate licensee is in such fraud were hotly disputed. Brokers/Realtors instances also bound by a professional argued that, based on Rice v. Patterson Realtors, duty to treat all parties with honesty. 1993 OK 103, 857 P.2d 71, and Dawson v. Tindell, 1987 OK 10, 733 P.2d 407, Buyers’ claims were Id. ¶ 31, at 1222 (emphasis added). barred by the disclaimers on the marketing ¶15 Brokers/Realtors in this case have materials and Buyers’ waiver under the sales advanced the same arguments as the broker/ contract and closing acknowledgment. realtor in Bowman. According to Bowman, the ¶14 Nearly identical waivers and disclaimers question of whether a real estate licensee repre- were involved in Bowman v. Presley. See 2009 sented the square footage of the house in a OK 48, ¶ 4, 212 P.3d at 1215 n.6-8. In Bowman, manner that was reasonable, reckless, or inten- the buyers purchased a house that had been tionally dishonest must be resolved by the trier represented as containing 2,890 square feet. Id. of fact. Therefore, Sellers and Brokers/Realtors ¶ 2, at 1214. Shortly after closing, the buyers are not entitled to judgment as a matter of law received a copy of a mortgage appraisal which as to the negligent misrepresentation and fraud found the house was 2,187 square feet. Id. ¶ 3, claims, and we reverse and remand for further at 1215. The buyers brought suit against the proceedings. broker, realtor, and sellers for damages based ¶16 The final issue on appeal is whether on fraud, breach of implied contract, and viola- Newport is entitled to judgment as a matter of tions of the Oklahoma Real Estate License law as to Buyers’ negligence claim. It is undis- Code. Id. The broker, realtor, and sellers moved puted that Newport’s Exterior-Only Inspection for summary judgment and argued that buyers Residential Appraisal Report reflected the prior had a duty to independently determine the appraisal’s measurement of 5,053 square feet. It property’s correct size and that the buyers is also undisputed that Buyers had not seen waived their right to sue by signing the sales Newport’s appraisal report prior to closing. contract and closing agreement. Id. ¶ 4, at 1215. Prior to closing, the lending institution told The Oklahoma Supreme Court held that the Buyers only that the appraised value was satis- sellers and broker/realtor were not entitled to factory for the loan, not that the house mea- summary judgment on the buyer’s fraudulent sured at 5,053 square feet. Because Buyers did misrepresentation claims. The Court noted that not rely on the square footage information con- the buyers’ claims were anchored in fraud and tained in Newport’s appraisal report, Newport determined: could not have been the proximate cause of [T]he relevant duty of a real estate licensee is harm to Buyers. We affirm the part of the trial to treat all parties with honesty. A licensee court’s order granting summary judgment in may incur liability for failure to uphold that favor of Newport. duty when lay persons such as Buyers rely ¶17 AFFIRMED IN PART, REVERSED IN upon their representations made as licensed PART AND REMANDED. professionals. The question of whether Broker and Realtor represented the property size reason- BELL, J., concurs.

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1107 JOPLIN, Chief Judge, concurs in part, dissents in part: Wo r k e r s ’ Co m p e n s a t i o n I would affirm the trial court’s judgment (THE NEW LAW MEANS MAJOR CHANGES) completely. So c i a l Se c u r i t y 1 The Court held that the RPCDA expressly prohibited awards of punitive damages. White, 2009 OK 79, ¶ 15, 224 P.3d at 684. Title 60, § 837 provides: Di s abi l i t y The sole and exclusive civil remedy at common law or otherwise for a failure under subsection A of this section by the seller or the real estate licensee shall be an action for actual damages, including the cost of repairing the defect, suffered by the purchaser as a result of a defect existing in the property as of the date of accep- tance by the seller of an offer to purchase and shall not include the remedy of exemplary damages. 60 O.S. § 837(B) (emphasis added). 2. On the other hand, if Sellers and Brokers/Realtors had only a single measurement for square footage and disclosed the source of the measurement, no inference of negligent misrepresentation or fraud would arise.

Bi s c o n e & Bi s c o n e w i l l g l a d l y a c c e p t y o u r r e f e r r a l s . Association/referral fees paid 1-800-426-4563 405-232-6490 105 N. Hudson, Suite 100 • Hightower Building Oklahoma City, OK 73102

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

1108 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 IN MEMORIAM

OBA 1986 President James “Jim” R. Eagleton Sr.

He received his J.D. in 1951 and began a 60-year career in law. He was proud to be a third generation Tulsa lawyer. He served the legal profession on the Oklahoma Board of Bar Examiners as chairman; on an Oklahoma Temporary Court of Appeals as presiding judge; as president of the Tulsa County Bar Association and president of the OBA. In the community he served as YMCA of Greater Tulsa president, Tulsa Family and Children Services president, Knife and Fork Club president, Tulsa Ozark Club president and Tulsa Scottish Rite ast OBA President James R. Knight Commander of the Court of Eagleton Sr., died May 21, 2013. Honour. He was active in Troop 1 of the PHe was born Oct. 9, 1924. Fol- Boy Scouts of America the years his lowing graduation from Tulsa Central sons were active. He was a life-long High School where he was a three-time Presbyterian and served as Sunday state wrestling champion, he joined the School teacher, elder and trustee and Marine Corps. on the Dwight Mission Board. He served from July 1943 to Christ- He is survived by his wife, Grace, and mas 1945 as a BAR Sharpshooter with four sons: William L. IV; James R. Jr. Edson’s Raiders, 4th Marines, 6th and his wife, Polly; John Mark and his Division on New Caledonia, Emirau, wife, Allison; and T. Paul and his wife, Guadalcanal, Guam, Okinawa and Debbie. He is also survived by eight Japan. His military medals were the grandchildren: Will, Sally Grace, Trey, Presidential Unit Citation, Navy Unit Jenny, Alex, Mark, J.P. and Sydni; as Commendation and Purple Heart. well as his sister, Pauline Eagleton After the war, he entered the Univer- Standifer, and brother, E. John Eagleton, sity of Oklahoma where he was an All and their families. American and Olympic wrestler. He Memorial contributions can be made pledged Sigma Chi Fraternity, was a to Helping Hand at First Presbyterian Life Loyal Sig and in 2009, was award- Church, 709 South Boston, Tulsa, ed the fraternity’s highest honor — OK 74119. the Significant Sig Award.

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1109 IN MEMORIAM

cott L. Graham died dation and the Margaret Hud- Nov. 24, 1941, and graduated SMay 13. He was born on son Program. from Broken Bow High School July 23, 1935. He was a gradu- in 1959. He attended OSU eorge Josef Miskovsky ate of the Oklahoma Military where he studied banking and Jr. died May 17. Born July Academy, earned his under- G finance and went on to earn 28, 1934, in Oklahoma City, he graduate degree from George his J.D. from TU. He was Bro- earned his J.D. from OCU and Washington University and ken Bow city attorney, Broken was admitted to the bar in received his J.D. from OU. He Bow School Board attorney, 1962. He was an Army judge succeeded his father as chair- counsel to several rural water advocate general and was man of the First National districts, counsel for the Choc- stationed in Italy. Through- Bank of Broken Arrow in taw Electric Cooperative, Bro- out his career, he served as 1966, and his son succeeded ken Bow municipal judge and president, vice-president, sec- him in 2012. Mr. Graham president of the Broken Bow retary and treasurer of the found fulfillment working Library Board. He was a Federal Bar Association. He with the bank and believed it member of the First United was a lifelong athlete, an was the duty of a community Methodist Church of Broken outstanding football player, banker to achieve a greater Bow and served as adminis- swimmer and polo player. He good for the community. He trative board chair. He volun- was also an avid sailor and was active in the Tulsa and teered as chairman of the loved racing yachts. He found Broken Arrow chambers of Oklahoma Tourism Commis- his niche serving as legal commerce, served as chair- sion. He also served for many counsel for Schock Marine man of the Tulsa Opera, years as a guardian ad litem and Hobie Industries. He was chaired the Oklahoma Devel- for McCurtain County chil- a Master Mason attending opment Authority, served a dren, McCurtain County Blue Lodge #276 and earned term on the Arts Council and Democratic Party chairman, both Guthrie Scottish Rite was named Broken Bow’s Cit- Broken Bow Chamber of 32nd degree and York Rite at izen of the Year in 1972. He Commerce president and the India Temple Shrine. also played a leading role in Broken Bow Mock Trial team the establishment of the Bro- eorge Paul Walters died mentor and coach. ken Arrow Community Foun- GMay 23. He was born

1110 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 BAR NEWS

Judicial Nominating Commission Election Candidates Ballots will be mailed on June 7, 2013, and must be returned by June 21, 2013, at 5 p.m.

Th o m a s Ma r c u m , Du r a n t Di s t r i c t 3 Thomas Marcum is a 2004 University Mi c h a e l C. Mo r d y , Ar d m o r e of Oklahoma Col- Mike Mordy prac- lege of Law gradu- tices in the areas of oil ate. He resides in and gas law, commer- Durant with his wife, cial litigation and DeAnn, and their general business liti- two children. He is gation. He is admitted an attorney at the to practice before the Burrage Law Firm U.S. District Courts of where he practices Oklahoma and the both civil and crimi- 10th Circuit Court of nal law. Thomas also Appeals. He obtained serves as the munici- his Bachelor of Busi- pal judge in both ness Administration Stringtown and Caddo, and recently complet- degree from the Uni- ed his second term on the Durant City Council versity of Oklahoma where he served as vice mayor. Prior to in 1977 and graduated from Oklahoma City Uni- attending law school, he was employed by the versity School of Law in 1980. He has practiced Oklahoma State Senate as a research and pol- in Ardmore since 1983, with the firm of Mordy icy analyst. & Mordy PC. He is a member of the Carter County, State of Oklahoma and American Bar Associations. He is a benefactor Fellow of the Di s t r i c t 4 Oklahoma Bar Foundation and currently serves on the Oklahoma Bar Foundation Board of Trustees. He served as a member of the OBA Pe gg y St o c k w e l l , No r m a n Board of Governors from 2004 - 2006, and he served as vice-president to Board of Governors Peggy Stockwell lives in Norman, where she President Bill Conger in 2008. He currently practices family law. She is also a mediator, serves on the OBA Strategic Planning Commit- arbitrator and guardian ad litem in family law tee Finance Subcommittee and Client Security cases. She takes cases for pro bono and Legal Fund Committee. He is active in his commu- Aid Services and was awarded the Legal Aid nity where he serves on committees at First Pro Bono Award in 1999 for her service. After United Methodist Church and on the local the tornadoes in 1999 and in 2003, Ms. Stock- YMCA Board. well and her brother arranged for the OBA to have a presence at the FEMA sites to assist those affected with legal issues, and for her efforts, she was awarded the 1999 OBA Out-

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1111 standing Service to the Public award. She Bar exam before graduation. Upon receiving received the Mona Salyer Lambird Spotlight his law degree, Mr. Rivas opened a private Award in 2005. practice and has continued in that capacity to the present time. He Since becoming a lawyer, she has served on married his high several OBA committees including Professional school sweetheart Responsibility Tribunal (two terms), Access to on August 17, 1968. Justice Committee, Budget Committee, Law- They have two chil- yers Helping Lawyers Assistance Program dren, Meredith and Committee, Awards Committee and Clients Ryland II, both of Security Fund Committee. She was the co-chair whom are attorneys. of the Disaster Response and Relief Commit- He is a member of tee, and she is currently a member of the Fam- the Comanche Tribe ily Law Section. She and is an experi- also served as the enced trial lawyer District 5 representa- who has served as tive on the OBA Board first chair in hun- of Governors from dreds of jury and 2007-2009. She served non-jury trials. His experience in jury trial as Oklahoma Bar includes serving as lead counsel in complex Association vice pres- civil cases and cases charging major crimes ident in 2012. including first degree murder. Ms. Stockwell has Mr. Rivas has been involved in the areas of also been an active Indian law and criminal defense throughout member of the Cleve- his career in addition to an extensive civil trial land County Bar As- practice in both state and federal courts. He has sociation and has served as the general counsel for the Oklahoma served on the CCBA Executive Committee for Indian Affairs Commission and was also one of many years. During her tenure as president in the first four magistrates named to the Court of 2000, the CCBA received the OBA President’s Indian Offenses known widely as the CFR Award for Outstanding Participation in OBA court, which was the forerunner of tribal courts Programs and Projects (and for having a “world as we know them today. Mr. Rivas has also class” hospitality suite). She is currently a served on the Chickasha City Council, Grady director of the Cleveland County Bar Founda- County Community Sentencing Council, the tion, and is currently serving as a member on Oklahoma Indian Legal Services Board of the Cleveland County Health Department Directors and the Oklahoma Bar Association Board of Health. Ms. Stockwell has also served Board of Governors. on the board of several charitable organiza- tions including Norman Alcohol and Informa- Mr. Rivas has also served as the Cheyenne tion Center and Health for Friends. and Arapaho Supreme Court Chief Justice and General Counsel for the Kiowa Casino Opera- Ms. Stockwell enjoys spending time with tions Authority. He is a member of the Okla- her boxer, Winston, who has been featured in homa Criminal Defense Lawyer’s Association, the Oklahoma Bar Journal with Past President the Oklahoma Bar Foundation, and the Federal Reheard. Bar Association. He is admitted to practice in the State of Oklahoma, the U.S. District Court Ry l a n d Lo u i s Ri v a s , for the Western District of Oklahoma, the U.S. Ch i c k a s h a 10th Circuit Court of Appeals, Chickasaw Bar Association and the Delaware Nation Bar Asso- Ryland Rivas graduated from the University ciation. Additionally, he serves on the Board of of Oklahoma in 1971 with majors in economics Directors of the Bank of Verden, a small com- and finance. Mr. Rivas received his J.D. from munity bank with branches in Verden and OU College of Law in May 1974 and was one Newcastle, and is a volunteer for the Oklaho- of the last lucky students to take the Oklahoma ma Lawyers for Heroes program.

1112 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 HANDBOOK OF SECTION 1983 LITIGATION, 2013 EDITION David W. Lee ƒ Lee Law Center, P.C. ƒ Oklahoma City

“Essential... a gem for civil litigators who need a quick reference” -The Federal Lawyer, August 2007

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Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1113 A Fair Impartial Independent Judiciary Th e So v e r e i g n t y Sy m p o s i u m XXVI Sk i rv i n Hi l t o n Ho t e l

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

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

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

1114 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 DRUM: SOUTHERN NATION 3:15 – 4:45 THE JUDICIAL NOMINATING COMMISSION AND CAMP CALL: CHIEF GORDON YELLOWMAN, (Cheyenne) JUDICIAL RETENTION INVOCATION: BISHOP ROBERT E. HAYES JR., United CO-MODERATOR: DEBORAH REHEARD, ESQ., Past President Methodist Bishop of Oklahoma (2011), Oklahoma Bar Association, Member, Judicial Nominating WELCOME: HONORABLE MARY FALLIN, Governor of Commission Oklahoma DAVID HILL, Kimray Corporation, Former Member, Oklahoma WELCOME: JAMES T. STUART, President, Oklahoma Bar Judicial Nominating Commission Association BARRY SWITZER, Former Member, Oklahoma Judicial WELCOME AND INTRODUCTION OF JUSTICE Nominating Commission SANDRA DAY O’CONNOR: HONORABLE TOM COLBERT, JENNY DUNNING, Oklahoma Judicial Nominating Chief Justice, Oklahoma Supreme Court Commission KEYNOTE: HONORABLE SANDRA DAY O’CONNOR, HEATHER BURRAGE, ESQ., Chairperson, Oklahoma Judicial Justice, Supreme Court of the United States, Retired Nominating Commission ADDRESS: HONORABLE TOM COLE, (Chickasaw), WILLIAM P. BOWDEN, Major General (ret.), United States United States House of Representatives, Oklahoma District Four Air Force PRESENTATION OF AWARDS, HONORABLE YVONNE KAUGER, Justice, Oklahoma Supreme Court 4:45 – 5:30 CONVERSATION: HONORABLE SANDRA DAY HONOR AND MEMORIAL SONGS: SOUTHERN NATION O’CONNOR, Justice, Supreme Court of the United States, CLOSING PRAYER: BISHOP WILLIAM WANTLAND, Retired (Seminole, Chickasaw, Choctaw), Chief Justice, Seminole Nation ROBERT HENRY, President, Oklahoma City University Supreme Court, former Bishop of the Diocese of Eau Claire 2:45 – 5:30 PANEL D: TRUTH AND RECONCILIATION Wednesday Afternoon MODERATOR: HONORABLE NOMA GURICH, Justice, 4.5 CLE credits / 1 ethics included Oklahoma Supreme Court 2:30 – 2:45 Tea / Cookie Break for all Panels BISHOP ROBERT E. HAYES, JR., Bishop of the United Methodist 2:45 – 5:30 PANEL A : TRIBAL ECONOMIC DEVELOPMENT Conference of Oklahoma (A Continuation of the Morning Panel) Crystal Room REVEREND DR. DAVID WILSON, (Choctaw) United Methodist Conference Superintendent, Oklahoma Indian Missionary TRIBAL AND LOCAL GOVERNMENT COOPERATION Conference MODERATOR: DR. JAMES C. COLLARD, Director of CHIEF GORDON YELLOWMAN, (Cheyenne), Director, Planning and Economic Development, Citizen Potawatomi Cheyenne and Arapaho Tribes Language Program Nation C. BLUE CLARK, (Muscogee Creek), Professor of History, Native HONORABLE JOHN A. BARRETT, (Citizen Potawatomi Nation), American Legal Research Center, Oklahoma City University Chairman, Citizen Potawatomi Nation CHIEF HARVEY PRATT, (Cheyenne), Oklahoma State Bureau HONORABLE WALLACE COFFEY, (Comanche), Chairman, of Investigation Comanche Nation of Oklahoma 6:30 RECEPTION – UNVEILING OF THE PAINTING D. JAY HANNAH, (Cherokee), Executive Vice President, HONORING JUSTICE SANDRA DAY O’CONNOR Financial Services, BancFirst Oklahoma Judicial Center – 2100 North HONORABLE FRED L. FITCH, Mayor, Lawton, Oklahoma Lincoln Boulevard HONORABLE WES MAINORD, Mayor, Shawnee, Oklahoma Thursday Morning CAROLYN STAGER, Executive Director, Oklahoma Municipal 4 CLE credits / 1 ethics included League 7:30 – 4:30 Registration (Honors Lounge) 2:45 – 5:30PANEL B: THE ESSENTIALS OF TRIBAL SELF– 8:00 – 8:30 Complimentary Continental Breakfast GOVERNMENT AND SOVEREIGNTY 10:30 – 10:45 Morning Coffee / Tea Break Grand Ballroom A-B 8:30 – 12:00 PANEL A: GAMING - Grand Ballroom D-E MODERATORS: HONORABLE JERRY GOODMAN, Oklahoma CO-MODERATORS: MATTHEW MORGAN, (Chickasaw), Court of Civil Appeals Gaming Commissioner, Chickasaw Nation ALEXANDER T. SKIBINE, (Osage), S.J. Quinney Professor of NANCY GREEN, ESQ., (Choctaw), Green Law Firm Law, S.J. Quinney College of Law, University of Utah ROBERT J. MILLER, (Eastern Shawnee), Professor of Law, 8:30 – 9:15 REMARKS Lewis and Clark Law School HONORABLE TRACIE STEVENS, (Tulalip), Chair, National ELIZABETH A. KRONK, (Sault Ste. Marie Tribe of Chippewa Indian Gaming Commission Indians), Associate Professor of Law, University of Kansas School ERNEST STEVENS, JR., (Oneida), Chair, National Indian of Law, Director, Tribal Law and Government Center, Affiliated Gaming Association Professor, Indigenous Studies 9:15 – 10:30 COMPACT NEGOTIATIONS AND OKLAHOMA GEORGE T. SKIBINE, ESQ., (Osage), SNR Denton ISSUES UPDATE LINDSAY ROBERTSON, Professor of Law, University of Oklahoma College of Law, Faculty Director, American Indian JACQUE SECONDINE HENSLEY, (Kaw), Native American Law and Policy Center, and Associate Director, Inter–American Liaison, Office of Governor Mary Fallin Center for Law and Culture STEVE MULLINS, ESQ., General Counsel, Office of Governor CHAD SMITH, ESQ., (Cherokee), Chad Smith Consulting Mary Fallin JOSE FRANCISCO CALI TZAY, (Myan Caqchikel), 2013 Fellow JEFFREY CARTMELL, ESQ., Deputy General Counsel, Office of in Comparative and Indigenous Peoples Law, University of Governor Mary Fallin Oklahoma College of Law 10:45 – 12:00 TRIBAL/STATE OF OKLAHOMA RELATIONSHIP – 2:45 – 5:30 PANEL C: A FAIR, IMPARTIAL, AND FEES AND TAXES, PROCEDURES, IMPACT OF GAMING INDEPENDENT JUDICIARY (A Continuation of the DEVELOPMENT Morning Panel) - Centennial Ballroom WILLIAM NORMAN, ESQ., (Muscogee Creek), Hobbs Straus, MODERATOR: HONORABLE PHILLIP LUJAN, (Kiowa/ Dean and Walker Taos–Pueblo), Presiding Judge, Citizen Potawatomi Nation GARY PITCHLYNN, ESQ., (Choctaw), Pitchlynn Law Firm Tribal Court DEAN LUTHEY, ESQ., Gable Gotwals, General Counsel Oklahoma Indian Gaming Association 2:45 – 3:15 ETHICS ADDRESS 10:30 – 11:30 BOOK SIGNING JUSTICE SANDRA DAY HONORABLE JOHN REIF, Vice-Chief Justice, Oklahoma O’CONNOR – OUT OF ORDER: STORIES FROM THE Supreme Court HISTORY OF THE SUPREME COURT

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1115 8:30 – 12:30 PANEL B: CRIMINAL LAW/CROSS DEPUTIZATION SHEILA MORAGO, (Gila River), Executive Director, Oklahoma Grand Ballroom A-B Indian Gaming Association MODERATOR: HONORABLE SANFORD C. COATS, ESQ., ELIZABETH HOMER, ESQ. (Osage), Homer Law United States Attorney, Western District of Oklahoma GARY PITCHLYNN, ESQ. (Choctaw), Pitchlynn Law Firm ARVO MIKKANEN, ESQ., (Kiowa/Comanche), Assistant U.S. WILLIAM NORMAN, ESQ., (Muscogee Creek), Hobbs Straus, Attorney, Western District of Oklahoma Dean and Walker KURT G. GLASSCO, District Judge, District Court of Tulsa 1:30 – 5:00 PANEL B: THE ICWA AND OTHER CHILDREN’S County ISSUES - Crystal Room HONORABLE DAVID LEWIS, Chief Judge, Oklahoma Court of MODERATOR: HONORABLE JOHN FISCHER, Oklahoma Criminal Appeals Court of Civil Appeals 8:30 – 12:00 PANEL C: TRIBAL LANGUAGE PRESERVATION IN STEVEN HAGER, ESQ., Oklahoma Indian Legal Services THE TWENTY-FIRST CENTURY - Crystal Room SUE TATE, Court Improvement Project Coordinator, Oklahoma MODERATOR: HONORABLE CHARLES TATE, (Chickasaw), Administrative Office of The Courts Supreme Court Justice for the Kickapoo Tribe of Oklahoma, SUSAN WORK, ESQ., Assistant Attorney General, Cherokee former Special Judge, District Court of Carter County Nation of Oklahoma BLAKE WADE, Chief Executive Officer, The American Indian ANASTASIA PITTMAN, (Seminole), Oklahoma House of Cultural Center and Museum, President, Oklahoma Business Representatives Roundtable KELLY STONER, (Cherokee), Instructor in Law, Director of JEROD IMPICHCHAACHAAHA’ TATE, (Chickasaw), Composer the Native American Legal Resources Center, Oklahoma City CHIEF GORDON YELLOWMAN, (Cheyenne), Director, University Cheyenne and Arapaho Tribes Language Program RITA HART, (Choctaw and Jicarilla Apache), OKDHS Tribal HONORABLE GREG BIGLER, (Yuchi), District Judge, Program Manager Muscogee-Creek Nation 1:30 – 5:00 PANEL C: THE TRIBAL LAW AND ORDER ACT- HOLLY DAVIS, (Cherokee), Cherokee Immersion Charter School THE HOPI PERSPECTIVE - Grand Ballroom A-B VON ROYAL, Executive Director, One-Net MODERATOR: HONORABLE DAVID LEWIS, Chief Judge, 8:30 – 12:00 PANEL D: THE STATUS OF TRUST ISSUES IN THE Oklahoma Court of Criminal Appeals WAKE OF JUDICIAL DECISIONS - Centennial Ballroom HONORABLE LEROY SHINGOITEWA, (Hopi), Chairman, CO-MODERATORS: HONORABLE JOHN REIF, Vice-Chief Hopi Tribe, Kykotsmovi, Arizona Justice, Oklahoma Supreme Court JILL ENGEL, ESQ., Chief Prosecutor, Hopi Tribe, Kykotsmovi, LEAH HARJO WARE, (Muscogee Creek), ESQ. Arizona STACY LEEDS, (Cherokee), Dean, University of Arkansas School ROBERT J. LYTTLE, ESQ., General Counsel, Hopi Tribe, of Law, Commissioner, United States Trust Commission Kykotsmovi, Arizona MICHAEL SMITH, Deputy Bureau Director, Field Operations, MARILYN TEWA, (Hopi), Mishongnovi Village Representative, United States Department of the Interior, Bureau of Indian Kykotsmovi, Arizona Affairs MERVYN YOYETEWA, (Hopi), Mishongnovi Village JIM JAMES, Deputy Director of Field Operations, United States Representative, Kykotsmovi, Arizona Department of the Interior, Office of Special Trustee for JOHN TUCHI, Chief Assistant United States Attorney, Phoenix, American Indians Arizona DAVID SMITH, ESQ., Kilpatrick, Townsend and Stockton MELODY MCCOY, ESQ., (Cherokee), Native American 1:30 – 5:00 PANEL D: DEPARTMENT OF THE INTERIOR SEC- Rights Fund RETARIAL COMMISSION ON INDIAN TRUST ADMINIS- WILLIAM RICE, (Keetoowah), Associate Professor of Law, TRATION AND REFORM - Centennial Ballroom University of Tulsa College of Law The five-member Secretarial Commission will share its drafts MICHAEL ANDERSON, ESQ., (Muscogee Creek) recommendations regarding trust management and administration, and invite feedback from attendees. Thursday Afternoon 4 CLE credits / 0 ethics included MODERATOR: STACY LEEDS, (Cherokee), Dean, University of 3:30 – 3:45 Tea / Cookie Break for all Panels Arkansas School of Law, Commissioner, United States Trust Commission 1:30 – 3:30 PANEL A: GAMING (A Continuation of the DR. PETERSON ZAH, (Diné/Navajo), Last Chairman of Morning Panel) - Grand Ballroom D-E the Navajo Tribal Council, First Elected President of the CO-MODERATORS: MATTHEW MORGAN, (Chickasaw), Navajo Nation Gaming Commissioner, Chickasaw Nation TEX G. HALL, (Mandan, Hidatsa, and Arikara Nation), Chairman, NANCY GREEN, ESQ., (Choctaw), Green Law Firm Three Affiliated Tribes, Past President of the National Congress 1:30 – 3:30 SOVEREIGNTY ISSUES AND INTERNET GAMING of American Indians, Chairman of the Inter Tribal Economic – JURISDICTION, OFF RESERVATION, ECONOMIC Alliance, Chairman of the Great Plains Tribal Chairmen’s ANALYSIS, SOCIAL GAMING, STRATEGIES Association ROBERT ANDERSON, (Minnesota Chippewa Tribe Bois Forte ERNEST STEVENS, JR., (Oneida), Chair, National Indian Band), Professor of Law and Director of the Native American Gaming Association Law Center at the University of Washington, Oneida Nation JAMIE HUMMINGBIRD, (Cherokee), Cherokee Nation Gaming Visiting Professor of Law, Harvard Law School Commission, Director and Chairman of the National Tribal LIZZIE MARSTERS, Chief of Staff to the Deputy Secretary of Gaming Commission Regulators the Interior ALAN MEISTER, PH.D., Principal Economist, Nathan A MEETING OF THE DEPARTMENT OF THE INTERIOR Associates, Inc. SECRETARIAL COMMISSION ON INDIAN TRUST D. MICHAEL MCBRIDE, III, ESQ., Crowe & Dunlevy ADMINISTRATION AND REFORM WILL BE HELD AT THE DEAN LUTHEY, ESQ., Gable Gotwals, General Counsel OKLAHOMA JUDICIAL CENTER, 2100 NORTH LINCOLN Oklahoma Indian Gaming Association BOULEVARD, OKLAHOMA CITY, OKLAHOMA 3:45 – 5:00 LAND INTO TRUST AND OTHER REGULATORY ON JUNE 7, 2013 AT 8:30 AM ISSUES – CARCIERI, ROLES OF NIGC AND BIA, COMPET- Commission Meetings are open to the public and information ING INTERESTS, TAXATION ISSUES, NIGC UPDATE about meetings is posted to: HONORABLE TRACIE STEVENS, (Tulalip), Chair, National http://www.doi.gov/cobell/commission/index.cfm Indian Gaming Commission

1116 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 A Fair Impartial Independent Judiciary

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1117 Disposition of Cases Other Than by Published Opinion

COURT OF CRIMINAL APPEALS suspended sentence is AFFIRMED. Opinion Wednesday, May 8, 2013 by: Smith, V.P.J.: Lewis, P.J.: Concur; Lumpkin, RE-2012-0332 — Appellant, Coy Ray Cheek, J.: Concur; C. Johnson, J.: Concur; A. Johnson, entered pleas of nolo contendere on April 29, J.: Concur. 1994, in Tulsa County District Court Case No. Friday, May 10, 2013 CF-1993-3257 to Count 1 – Rape, First Degree and Count 2 – Rape by Instrumentation. He F-2012-305 — Appellant Michael Kenebrew was sentenced to concurrent terms of twenty- was tried by jury for First Degree Murder in five years with ten years to serve and the bal- the District Court of Oklahoma County, Case ance suspended, with rules and conditions of No. CF-2010-34. The jury found Appellant probation. Appellant was also fined $500.00 on guilty of the lesser included crime of Second Count 1. The State filed an application to revoke Degree Murder (21 O.S.Supp.2009, § 701.8) and Appellant’s suspended sentence on May 20, recommended as punishment thirty (30) years 2009. A revocation hearing was held on October imprisonment. The trial court sentenced accord- 9, 2009, before the Honorable William C. Kel- ingly. It is from this judgment and sentence lough, District Judge, at which Appellant con- that Appellant appeals. AFFIRMED. Opinion fessed the State’s allegations. Judge Kellough by: Lumpkin, J.; Lewis, P.J., concur in result; continued the matter for sentencing. Following a Smith, V.P.J., concur in result; C. Johnson, J., sentencing hearing on March 19, 2012, Judge concur in result; A. Johnson, J., concur. Kellough sentenced Appellant to fifteen years COURT OF CIVIL APPEALS with the first five years to be served and the last (Division No. 1) ten years suspended, with credit for all time Friday, May 10, 2013 served and earned. The sentences were ordered to run concurrently. Appellant appeals from the 110,199 — Kevin Hedrick, Plaintiff/Appel- revocation of his suspended sentences. The lant, vs. The Commissioner of the Department revocation of Appellant’s suspended sentences of Public Safety, State of Oklahoma, Defen- is AFFIRMED; however, the matter is REMAND- dant/Appellee. Appeal from the District Court ED to the District Court for re-sentencing. Opin- of McClain County, Oklahoma. Honorable ion by: Smith, V.P.J.; Lewis, P.J.: Concur in Gary Barger, Judge. Appellant (Hedrick) Result; Lumpkin, J.: Concur; C. Johnson, J.: appeals from the trial court’s denial of his Concur; A. Johnson, J.: Concur. motion to reconsider the dismissal of his peti- RE-2011-0711 — On June 14, 2010, Appel- tion to set aside the revocation of his drivers lant, Donnivan M. West, pled guilty to Inde- license by Appellee (DPS), or, alternatively, cent or Lewd Acts With a Child Under Sixteen grant a hardship modification of his license. in Oklahoma County District Court Case No. We find the trial court incorrectly concluded it CF-2008-2307. He was given a ten year sus- lacked jurisdiction to hear this case. Notwith- pended sentence, with rules and conditions of standing, we find the court properly ruled in probation. The State filed an application to favor of DPS. The court correctly overruled revoke Appellant’s suspended sentence on Hedrick’s motion for new trial, not because the June 23, 2011, alleging Appellant (1) failed to court lacked jurisdiction, but because Hedrick’s pay supervision fees/court costs, (2) failed to proffered evidence was incompetent to sustain maintain legal/gainful employment, (3) illegal his burden of proof under 47 O.S. Supp. 2006 possession of marijuana or other drugs, and (4) §6-211(F). Therefore, §6-211(F) prohibited the failed to attend sex offender treatment. Follow- trial court from considering the merits of ing a revocation hearing on July 26, 2011, the Hedrick’s appeal. The issue of modification Honorable Glenn Jones, District Judge, revoked was not properly before the trial court. The Appellant’s suspended sentence in full. Appel- judgment of the trial court is AFFIRMED. lant appeals from the revocation of his sus- Opinion by Bell, J.; Buettner, P.J., and Joplin, pended sentence. The revocation of Appellant’s C.J., concur.

1118 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 110,492 — In Re Marriage of Stillwell. Mathew of Claimant’s left ankle conducted in Decem- D. Stillwell, Petitioner/Appellee, vs. Cynthia ber 2011. The record is bereft of any note of A. Stillwell, Respondent/Appellant. Appeal such a mobile piece of bone in the prior MRI from the District Court of Washington County, conducted in December 2010. Although neither Oklahoma. Honorable Carl G. Gibson, Judge. Claimant’s treating physician nor Employer’s Respondent/Appellant Cynthia A. Stillwell examining physician specifically attribute (Mother) appeals from the trial court’s order Claimant’s change of condition to these notable directing her to pay child support arrearage differences in the two MRIs, the difference nev- from the date Petitioner/Appellee Mathew D. ertheless stands as objective medical evidence Stillwell (Father) filed his motion to modify of a change of condition for the worse since the custody. Father had previously waived child last prior order. Based on this evidence, we support, the issue of child support arrearage cannot say the decision of the Workers’ Com- was not addressed in the hearing at which the pensation Court is so contrary to the clear parties announced their agreement, nor did weight of the evidence as to warrant the substi- Father seek arrearage in his motion to settle tution of our judgment on the facts for that of journal entry. Mother was not on notice that the Workers’ Compensation Court. SUS- arrearage was at issue and we reverse that part TAINED. Opinion by Joplin, C.J.; Buettner, P.J., of the order. AFFIRMED IN PART/REVERSED and Bell, J., concur. IN PART. Opinion by Buettner, P.J.; Joplin, C.J., 111,047 — Terri L. Miller, Plaintiff/Appel- and Bell, J., concur. lant, vs. John William McPherson, Defendant/ 110,656 — Sid Vaught and Mary Jane Vaught, Appellee. Appeal from the District Court of as Co-Guardians of A. R-V., a minor child, Plain- Payne County, Oklahoma. Honorable Phillip tiffs/Appellants, vs. Michael J. Tullius, Defen- C. Corley, Judge. Plaintiff/Appellant Terri L. dant/Appellee. Appeal from the District Court Miller appeals summary judgment in favor of of Oklahoma County, Oklahoma. Honorable Defendant/Appellee John William McPherson. Bryan C. Dixon, Judge. Plaintiffs/Appellants Miller sued McPherson for battery and inten- Sid and Mary Jane Vaught (Vaughts) co-guard- tional infliction of emotional distress in 2011. ians of A.R-V. (Ward), appeal the trial court’s Miller alleged that McPherson sexually abused April 6, 2012 order dismissing with prejudice her between 1972 and 1973, when she was six their Second Amended Petition. The order is (6) years old. The trial court granted summary effectively a default judgment entered as sanc- judgment in favor of McPherson based on tion for the Vaughts’ failure to appear at the Oklahoma’s statute of limitations. We hold that pre-trial conference. The Vaughts have not Montana’s statute of limitations applies, and shown that the trial court abused its discretion according to Montana law, Miller’s claim is not and we affirm the default judgment. AFFIRMED. time barred. There is a substantial controversy Opinion by Buettner, P.J.; Joplin, C.J., and Bell, as to when Miller discovered or reasonably J., concur. should have discovered a causal connection between her injuries and the childhood sexual 110,882 — Sears, Roebuck & Company and abuse. The judgment of the trial court is reversed Indemnity Insurance Company of North Amer- and remanded for further proceedings. ica, Petitioners, vs. Bobby Ray Tracy and The REVERSED AND REMANDED. Opinion by Workers’ Compensation Court, Respondents. Buettner, P.J.; Joplin, C.J., and Bell, J., concur. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. 111,158 — Mercy Hospital (Own Risk #17461), Employer seeks review of an order of a three- Petitioner, vs. Sheila D. Humphrey and The judge panel of the Workers’ Compensation Court Workers’ Compensation Court, Respondents. which affirmed the trial court’s order granting Proceeding to Review an Order of The Work- the motion to reopen of Claimant. In this review ers’ Compensation Court. Honorable William proceeding, Employer challenges the lower R. Foster, Judge. Employer seeks review of the court’s judgment as unsupported by objective trial court’s order granting benefits for an acci- medical evidence, and hence, contrary to the dental personal injury arising out of and in the clear weight of the evidence. Claimant’s treat- course of the employment to Claimant. Employ- ing physician, Dr. Blackmon, discerned a er first complains that, to the extent the three- mobile (unattached) “os trigonum,” i.e., a judge panel vacated the trial court’s order small, triangularly-shaped bone normally based on a finding that Employer waived attached to the anklebone, in the second MRI assertion of the affirmative defense of “inter-

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1119 vening injury,” the three-judge panel erred as a Oklahoma County, Hon. Lisa T. Davis, Trial matter of both fact and law, because Employer Judge. ONB Bank and Trust Company appeals claimed as an affirmative defense in at least the decision of the district court granting sum- five Form 10s that Claimant’s “injury occurred mary adjudication to Brewski Construction, outside of [the] employment,” and preserved Inc., and Johnson & Associates, Inc., concern- for adjudication the issue of the defense of ing the validity and priority of mechanic’s and intervening injury, i.e., an injury not causally materialmen’s liens upon certain real property related to the employment. Moreover, says located in Oklahoma County, Oklahoma owned Employer in its second proposition, Claimant by Defendant Clearwater Development Group, did not raise the issue of “waiver” of defenses LLC. Upon review of the evidentiary materials either in her Petition for Review to the three- presented by the parties, this Court finds the judge panel, or in oral argument before the district court committed no error in granting three-judge panel, and hence, waived any right summary adjudication to Brewski for foreclo- to complain, if any she ever had. By five sepa- sure of its original Lien and such judgment is rately filed Form 10s in the present case, Employ- AFFIRMED. The district court erred as a matter er denied that Claimant sustained an accidental of law in granting summary adjudication to personal injury arising out of and in the course Johnson for foreclosure of its July 23, 2008 Lien, of the employment, and asserted as an “affirma- as such lien expired by operation of law pursu- tive defense” that Claimant’s “injury occurred ant to 42 O.S.2001 §§ 172 and 177, and such judg- outside of [the] employment.” Claimant never ment is REVERSED. The district court commit- raised the issue of Employer’s purported waiver ted no error in granting summary adjudication of defenses for consideration, either before the to Johnson for foreclosure of its August 24, 2009 trial court or the three-judge panel. Employer’s Lien and such judgment is AFFIRMED. AF- denial of the occurrence of a compensable injury FIRMED IN PART AND REVERSED IN PART. arising out of and in the course of the employ- Opinion from Court of Civil Appeals, Division II ment, coupled with its asserted “affirmative by Fischer, P.J.; Barnes, V.C.J., and Wiseman, J., defense” that Claimant’s “injury occurred out- concur. side of [the] employment,” constituted a denial of one of the essential elements of Claimant’s 109,320 (Companion to Case No. 110,235) – case, i.e., that she suffered an injury “arising In re the Marriage of: Lizabeth Anne Reetz, out of the and in the course of” her employ- Petitioner/Appellee, v. Jeffrey Rahn Reetz, Re- ment, on which she bore the burden of proof. spondent/Appellant. Appeal from Orders of We further hold Employer thereby sufficiently the District Court of Tulsa County, Oklahoma, raised the issue of non-job-related causation to Hon. Carl Funderburk, Trial Judge. This appeal preserve its right to present evidence refuting arises from the parties’ divorce proceedings. Claimant’s evidence of job-related causation. Respondent/Appellant (Husband) appeals To the extent the three-judge panel held from the trial court’s Orders denying his motion Employer waived its right to present evidence for new trial and awarding Petitioner/Appel- of some other non-job-related cause of Claim- lee (Wife) attorney fees and costs. Husband ant’s injury, and so based its decision to vacate argues the trial court erred by admitting cer- the trial court’s order denying benefits, we tain summary exhibits, by miscalculating his hold the three-judge panel erred as a matter of income, by failing to conduct a hearing on his both law and fact. VACATED AND REMAND- motion for new trial, by ordering him to be ED. Opinion by Joplin, C.J.; Buettner, P.J., and responsible for certain debt in addition to Bell J., concur. ordering him to pay Wife support alimony, and by awarding Wife attorney fees. Having con- (Division No. 2) cluded the findings of the trial court are not Thursday, May 9, 2013 clearly against the weight of the evidence and 110,272 — ONB Bank & Trust Co., Plaintiff/ the trial court did not abuse its discretion, we Appellant, v. Clearwater Development, LLC, affirm the divorce decree and the Orders and an Oklahoma limited liability company; Clear- remand this case to the trial court for a deter- water Development Group, LLC, an Oklahoma mination of the amount of attorney fees and limited liability company; Oklahoma Contrac- costs to be awarded Wife for the reasonable tor’s Supply, LLC; Johnson & Associates, Inc.; expenses incurred on appeal. AFFIRMED AND Brewski Construction, Inc., Defendants/Appel- REMANDED FOR FURTHER PROCEEDINGS. lees. Appeal from Order of the District Court of Opinion from Court of Civil Appeals, Division

1120 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 II, by Barnes, V.C.J.; Fischer, P.J., and Wiseman, 2023(A)(3)) and “commonality” (12 O.S. Supp. J., concur. 2009 § 2023(A)(2)) for class action certification are not satisfied and, therefore, denied certifi- 110,235 (Companion to Case No. 109,320) – cation. Based on our review of the record and In re the Marriage of: Lizabeth A. Reetz, Peti- applicable law, we conclude the trial court did tioner/Appellee, v. Jeffrey R. Reetz, Respon- not err and we summarily affirm the trial dent/Appellant. Appeal from an Order of the court’s Order pursuant to Oklahoma Supreme District Court of Tulsa County, Oklahoma, Court Rule 1.202(d), 12 O.S.2011, ch. 15, app. 1, Hon. Carl Funderburk, Trial Judge. This appeal because the comprehensive and well-reasoned arises from the parties’ divorce proceedings. Order of the trial court adequately explains the Respondent/Appellant (Husband) appeals decision. SUMMARILY AFFIRMED UNDER from the trial court’s Order granting Petition- RULE 1.202(d). Opinion from Court of Civil er/Appellee’s (Wife) motion to dismiss Hus- Appeals, Division II, by Barnes, V.C.J.; Fischer, band’s motion to modify alimony and child P.J., and Wiseman, J., concur. support payments. Husband argues the trial court erred and violated his due process rights 111,205 — David Bowers, Plaintiff/Appel- by failing to hold an evidentiary hearing on his lant, vs. Oklahoma Department of Rehabilita- motion to modify, and he argues that the tion Services, Defendant/Appellee. Appeal appearance of partiality on the part of the trial from an order of the District Court of Oklaho- court is pervasive. Based on our review of the ma County, Hon. Barbara G. Swinton, Trial facts and applicable law, we conclude the trial Judge, sustaining the Department’s motion to court did not abuse its discretion or violate dismiss Bowers’ declaratory judgment action. Husband’s due process rights by deciding the Bowers asked the trial court to declare him a motion without a hearing. We further conclude “career teacher” within the meaning of 70 O.S. there is no appearance of impropriety or par- § 6-101.3(4) thereby entitling him to all benefits tiality in the proceedings. Therefore, we affirm associated therewith. Department sought dis- the Order. We remand this case to the trial missal of the action claiming that the ruling by court for a determination of the amount of the administrative officer that Bowers was a attorney fees and costs to be awarded Wife for probationary teacher, not a career teacher, was the reasonable expenses incurred on appeal. an agency decision “beyond the reach of the AFFIRMED AND REMANDED FOR FUR- district court’s declaratory judicature.” After THER PROCEEDINGS. Opinion from Court of review of the record, we conclude the trial Civil Appeals, Division II, by Barnes, V.C.J.; court did not have jurisdiction to hear the Fischer, P.J., and Wiseman, J., concur. declaratory judgment action pursuant to 12 O.S.2011 § 1651. Although Bowers claims there Friday, May 10, 2013 is no order, judgment, or decree, the absence of 109,967 — El Reno Rod, Gun & Development an order, judgment, or decree stems from his Corporation, and Earl D. Mills, individually attempt to circumvent the administrative pro- and on behalf of all others similarly situated, cess. He must exhaust his administrative rem- Plaintiffs/Appellants, v. Mack Energy Compa- edies before seeking redress in the courts. ny, an Oklahoma corporation, Mack Oil Com- AFFIRMED. Opinion from the Court of Civil pany, an Oklahoma corporation, Enerwest Appeals, Division II, by Wiseman, J.; Barnes, Trading Co., L.C., and Jath Oil Company, an V.C.J., and Fischer, P.J., concur. Oklahoma corporation, f/k/a Fullwood Oil (Division No. 3) Company and Enerwest Trading Company, Friday, May 10, 2013 Defendants/Appellees. Appeal from an Order of the District Court of Canadian County, Okla- 109,437 — State of Oklahoma, ex rel. Depart- homa, Hon. Gary E. Miller, Trial Judge. Plain- ment of Transportation, Plaintiff/Appellant, tiffs/Appellants, who allege they are underpaid vs. Veterans of Foreign War, Post 1320, Defen- royalty owners, appeal the trial court’s Order dant/Appellee, and The Creek County Trea- denying their motion to certify a class action surer, Defendant. Appeal from the District Court against Defendants/Appellees. The trial court, of Creek County, Oklahoma. Honorable Law- upon finding “Plaintiffs’ claims are not typical rence W. Parish, Judge. In this condemnation of the claims of the class as a whole” and “no action Appellant (DOT) appeals from a judg- common issue[s] . . . extend across the entire ment awarding Appellees (Landowners) $26,130 class,” determined that the statutory prerequi- [jury verdict of $175,000 less Commissioners sites of “typicality” (12 O.S. Supp. 2009 § Award of $148,870] with 6% pre-judgment inter-

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1121 est thereon for the taking of the Landowners’ court ordered immediate removal of S.C.H. real property. DOT exercised its right of eminent from a non-relative kinship placement. Foster domain pursuant to 69 O.S. 2011 §1203 to acquire parents and S.C.H. moved for reconsideration Landowners’ property for the purposes of of the removal ruling, and following a hearing, improvements to State Highway 66 in Creek the trial court denied their motions. Based on County. The parties’ central dispute concerns the the record evidence and the absence of any existence of and/or extent of damage caused to legal error or abuse of discretion, both orders the parking lot and ceiling tiles of the meeting are affirmed. AFFIRMED. Opinion by Hether- hall. The record shows the parking lot was dam- ington, P.J.; Mitchell, J., and Goree, J., concur. aged within the temporary easement area as 111,439 — Travis L. Archer, Plaintiff/Appel- well as adjacent thereto in connection with the lant, vs. State of Oklahoma ex rel., Department condemnation construction activity. Insomuch of Public Safety, Defendant/Appellee. Appeal as the applicable constitutional as well as emi- from the District Court of Oklahoma County, nent domain law specifically calls for the inclu- Oklahoma. Honorable Donald L. Easter, Trial sion of any injury to the remaining part of the Judge. In this Oklahoma Department of Public property not taken in the determination of just Safety (DPS) administrative driver’s license compensation due landowners, we find no revocation appeal, the licensee Travis Lynn error in the admission of relevant evidence Archer (Archer) appeals from district court pertaining to damage to the parking lot and the order upholding revocation. Archer argues ille- jury assessment of same in reaching its deter- gal warrantless arrest, resulting in a DUI charge mination of just compensation. The causation following an accident in a public parking lot, of the ceiling tile damage and Landowners’ and improper driver’s license restriction of his mitigation of damages are facts to be found by modified driving privilege by the trial court. the jury in reaching its decision on the damages We affirm the trial court’s order upholding to the remainder for inclusion in its ultimate revocation. AFFIRMED. Opinion by Hether- determination of the total amount of compensa- ington, P.J.; Mitchell, J., and Goree, J., concur. tion due Landowners. We therefore find no error in the admission of evidence pertaining to the (Division No. 4) ceiling tile damages. Further, we discern no Friday, May 10, 2013 error in the trial court’s denial of DOT’s Motion 110,108 — Ryann C. Baumann, Individually for Directed Verdict. The record contains more and as Pesonal Representative of the Estate of than a scintilla of evidence demonstrating the Randy Michael Baumann, Plaintiff/Appellant, causal connection between the construction v. Cactus Drilling Company, L.L.C., an Okla- activities and the damage to the parking lot and homa limited liability company, Defendant, the ceiling of the building and further shows the and Stallion Oilfield Services LTD, a foreign pertinent values and repair costs associated with limited partnership; Stallion Interests, L.L.C.; those areas adjacent to the taken property. In Stallion Heavy Haulers, L.P.; Stallion Acquisi- addition, we find the instructions read to the tion, L.L.C.; and Greg Koch, an individual, jury to be clear, adequately instructive of Okla- Defendants/Appellees. Appeal from an Order homa law, not misleading, and incapable of of the District Court of Beckham County, Hon. being construed as making any impression upon Floyd Douglas Haught, Trial Judge. Plaintiff the jury regarding payments previously made. appeals a judgment entered on a jury verdict We also find no error in the trial court’s award- for the defendants, Stallion Oil Field Services, ing pre-judgment interest at 6%. AFFIRMED. LTD, Stallion Interests, L.L.C., Stallion Heavy Opinion by Mitchell, J.; Hetherington, P.J., and Haulers, L.P., Stallion Acquisition, L.L.C. (col- Goree, J., concur. lectively Stallion) and Greg Koch (Koch). The 111,143 — In the Matter of K.B., T.B., S.H., plaintiff and the remaining defendant, Cactus S.H., N.H. and L.H., alleged deprived children, Drilling Company, L.L.C., (Cactus) settled after State of Oklahoma, Petitioner/Appellee, vs. the trial and Cactus is not a party to this appeal. S.C.H., Minor Child/Appellant. Appeal from Plaintiff’s contention that the Unavoidable the District Court of Oklahoma County, Okla- Accident and Intervening Cause Instructions homa. Honorable Gregory J. Ryan, Trial Judge. are not supported by the evidence is rejected. Appellant S.C. H., one of six allegedly-deprived The Record reflects that Stallion and Koch pre- minor children in this pre-adjudication/ paren- sented evidence to justify the giving of both tal rights termination matter, appeals two trial instructions. Moreover, Plaintiff has not shown court rulings. After an emergency hearing, the that the verdict would have been different had

1122 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 the Unavoidable Accident Instruction or the 110,854 (comp. w/110,853)— Melita Davis, Intervening Cause Instruction been refused. Plaintiff/Appellant, vs. McKinney & Stringer, Therefore, no reversible error exists by virtue P.C., Patrick Kernan, Ronald Walker, Eaton & of having instructed the jury on Unavoidable Sparks, P.L.L.C., Gary A. Eaton, and Robert S. Accident and Intervening Cause. Plaintiff has Post, Defendants/Appellees. Plaintiff/Appel- not overcome 20 O.S.2011, § 3001.1 as to either lant’s Petition for Rehearing, filed April 30, challenged instruction. AFFIRMED. Opinion 2013, is DENIED. from Court of Civil Appeals, Division IV, by 110,853 (comp. w/110,854)— Melita Davis, Rapp, J.; Thornbrugh, P.J., and Goodman, J., Plaintiff/Appellant, vs. McKinney & Stringer, concur. P.C., Patrick Kernan, Ronald Walker, Eaton & ORDERS DENYING REHEARING Sparks, P.L.L.C., Gary A. Eaton, and Robert S. (Division No. 3) Post, Defendants/Appellees. Plaintiff/Appel- Wednesday, May 8, 2013 lant’s Petition for Rehearing, filed April 30, 110,360 — Renaissance Norman Investors, 2013, is DENIED. L.L.C., Plaintiff/Appellee, vs. NS-Norman, L.L.C., Defendant/Appellant. Plaintiff/Appel- lee’s Petition for Rehearing and Supporting Brief, filed April 18, 2013, is DENIED.

Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1123 THE UNIVERSITY OF OKLAHOMA | College of Law ® Atlas Pipeline is seeking qualified candidates for a Senior Corporate Counsel position in our Tulsa office. The Senior Corporate Counsel provides legal services HIRING? and advice regarding a wide range of activities and Get customized projects related to the operations and business of the recruiting services from company, and ensures that the company conducts its Oklahoma’s #1 Law School business in compliance with applicable laws, regulations, and internal policies and procedures. · Post jobs online for OU Law students and alumni The ideal candidate will possess a J.D., be licensed to · Identify qualified applicants practice law in Oklahoma, have 3-5 years of legal experi- specific to your hiring needs ence, and have knowledge or experience in one or more · Schedule interviews on campus, in of the following areas: (i) real estate law; (ii) commercial your office, or via video-conference law; (ii) midstream law; and/or (iii) oil and gas law. For additional details regarding this position, please visit the following web address: http://www.atlaspipeline.com/ To hire the best, go to the best. National Jurist magazine ranked OU Law a top 15 “Best Value” Careers/Sr-Corporate-Counsel,29-040213.aspx law school and one of the top 15 percent law schools overall. Qualified candidates may submit a resume to hr@ (405) 325-4717 | [email protected] atlaspipeline.com or fax to (918) 925-3990. Please e University of Oklahoma is an equal opportunity institution. www.ou.edu/eoo reference job number 29-040213.

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

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Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1125 OFFICE SPACE POSITIONS AVAILABLE ADMINISTRATIVE OFFICER – LEGAL/INSPECTOR EDMOND - Tired of paying rent? Tired of driving GENERAL. Make a difference in people’s lives at the downtown? Invest in a custom designed and built Department of Mental Health and Substance Abuse office at Covell Village (Kelly & Covell Village Services – Central Office. This position performs ad- Drive)! With low interest rates, owning can cost far ministrative, professional and highly technical duties less than renting. David Bohanon, 405-850-0987 or for executive level positions or various management [email protected]. areas; may provide supervision or direction to assigned staff. Duties include the ability to handle the adminis- POSITIONS AVAILABLE tration of legal and investigatory matters, multi-task while arranging for special conferences and/or meet- EXPERIENCED LITIGATION ASSOCIATE (3-7 ings; attend meetings to transcribe proceedings for dis- years) needed by AV-rated Tulsa insurance and trans- tribution to all staff; make travel arrangements; prepare portation defense firm. Very busy, fast-paced office and submit travel claims; prepare administrative, sta- offering competitive salary, health/life insurance, tistical and/or fiscal documents requiring expert level 401k, etc. Candidates with strong academic back- knowledge of Microsoft Office and modern office ground and practical litigation experience, please methods. Salary $34,500+. Requires: Completion of the send a cover letter describing what you consider are curriculum requirements for a bachelor’s degree and the three greatest victories of your legal career, a ré- one (1) year of professional or highly complex clerical sumé and writing sample (10 pg. max) in confidence experience; OR an equivalent combination of educa- via email to [email protected]. tion and experience. ODMHSAS offers excellent benefit & retirement packages; Applicants must submit a ré- SOUTH TULSA LAW FIRM sumé that includes job title and announcement number is seeking an attorney with exceptional research, 2013-18 CO along with a copy of the applicant’s most writing, drafting and discovery skills for a thriving recent performance evaluation to humanresources@ state and federal trial practice. Candidates must be odmhsas.org. Reasonable accommodation to individu- organized, deadline oriented and capable of als with disabilities may be provided upon request. working independently. All replies will be kept Application period: 5/16/13 – 5/30/13. EOE. confidential. Salary commensurate with experience. LEGAL SECRETARY NEEDED for small law firm near Please send résumé to “Box K,” Oklahoma Bar downtown. Minimum 5 years experience in family law, Association, P.O. Box 53036, litigation, corporate and estate planning. Must be detail- Oklahoma City, OK 73152. oriented and have excellent organizational skills. Candi- date will be utilizing secretarial and paralegal skills. THE LAW FIRM OF PIERCE COUCH HENDRICK- Competitive salary based on experience. Send résumé, SON Baysinger & Green LLP, is accepting resumes for references and salary requirements in confidence to “Box an associate position in the Oklahoma City office for M,” Oklahoma Bar Association, P.O. Box 53036, Oklaho- those with 3-5 years experience. Prior experience in ma City, OK 73152. general litigation is preferred and insurance defense experience is a plus. Please submit résumés by email to FIRST AMERICAN TITLE INSURANCE COMPANY [email protected]. seeks attorney for title examination and underwriting counsel in Oklahoma City. 3 to 5 years in real estate AV RATED DOWNTOWN TULSA FIRM seeks associ- law and title examination preferred. All contacts will ate 0-3 years experience. The firm has a diverse prac- be kept confidential. Compensation commensurate tice featuring civil litigation, estate and tax planning, as with experience. Email résumé and references to well as family law. Drafting, brief writing, and some [email protected]. courtroom work can be expected. The successful candi- date will have a positive attitude and the ability to ef- FOR SALE fectively communicate and then follow through with assignments. Salary commensurate with experience SPECTACULAR CLIFF-SIDE HOME on the south end and ability. Please submit a résumé to Savage O’Donnell of Grand Lake for sale. An easy weekday commute Affeldt Weintraub & Johnson, 110 West 7th, Suite 1010, from Tulsa or weekender from OKC. Single-story brick Tulsa, OK 74119, Attn: Adam Scott Weintraub or e-mail traditional with four bedrooms, four baths, three-car to [email protected]. garage, two kitchens, sprinkler system, alarm system. Mature trees, private setting and flawless water view LOOKING FOR 3 HARD WORKING, DEDICATED from main living area and master. Back yard features LAWYERS as partners for a new law firm in Metro/ expansive multi-tiered decking, cabana with brick fire- South OKC/Norman area. Serious inquiries only. All place and flower gardens. Perfect for entertaining on a inquiries kept strictly confidential. Please email inqui- “grand” scale. $569,000. Also available, 30 x 30 adjacent ries to: [email protected]. garage for playthings; small office building in Disney, Okla. Call 918-782-7071. BEACHFRONT CONDO IN GALVESTON: 2/2; Liv- ing and Master face the beach; fully furnished; Riviera I; out-of-state heirs ready to make deal. debrathomas@ cox.net or 405-742-4507.

1126 The Oklahoma Bar Journal Vol. 84 — No. 15 — 5/25/2013 Vol. 84 — No. 15 — 5/25/2013 The Oklahoma Bar Journal 1127