Volume 86 No. 1 Jan. 10, 2015

Volume 86 u No. 1 u Jan. 10, 2015 WEBCAST ENCORE CLE PROGRAMS January 16, 2015

Where the Wind Comes Sweepin’ Down the Plain: An Oklahoma Environmental Melody

Program Planner/Moderator: LeAnne Burnett, Crowe & Dunlevy, P.C., Oklahoma City Topics Covered 1 The Air That I Breathe (The Hollies, 1974) ODEQ v. USEPA: A Look at Oklahoma’s Challenge to EPA’s Tribal New Source Review Rule and Jurisdictional Implications 2 Shake Rattle and Roll (Haley & The Comets, 1954) Hydraulic Fracturing - Rockin’ the House? 3 Bad to the Bone (George Thorogood & The Destroyers, 1974) Aguinda v. Chevron and the Amazon Crusader, Steven Donziger (The continuing saga of the World’s largest environmental judgment) 4 Last Dance, Last Chance? (Donna Summer, 1978) The Tale of the Lesser Prairie Chicken 5 Hit Me With Your Best Shot (Pat Benatar, 1980) Using “Sue and Settle” to Affect Agency Action 6 Spiders and Snakes (Jim Stafford, 1974) Rare Topics in Endangered Species

This webcast encore must be viewed on 1/16/2015 starting at 9 a.m. Approved for 6 hours MCLE / 0 Ethics. 5 hours TXMCLE/ 0 For program details, log on to: ethics. $200 www.okbar.org/members/cle Because this program is being rebroadcast on a and click on live wecast encores specific date and time, the credit is considered unlimited "live" credit.

2 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Associa- tion. All rights reserved. Copyright© 2015 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, u u Board of Governors, Board of Editors or Volume 86 No. 1 Jan 10, 2015 staff. Although advertising copy is reviewed, no endorsement of any product or service JOURNAL STAFF BOARD OF EDITORS offered by any advertisement is intended or implied by publication. Advertisers are solely JOHN MORRIS WILLIAMS, MELISSA DELACERDA, responsible for the content of their ads, and Editor-in-Chief Stillwater, Chair the OBA reserves the right to edit or reject any advertising copy for any reason. [email protected] DIETMAR K. CAUDLE, Lawton Legal articles carried in THE OKLAHOMA CAROL A. MANNING, Editor RENÉE DEMOSS, Tulsa BAR JOURNAL are selected by the Board of [email protected] Editors. Information about submissions can AMANDA GRANT, Spiro be found at www.okbar.org. LORI RASMUSSEN, ERIN MEANS, Moore Assistant Editor BAR Center Staff SHANNON L. PRESCOTT, [email protected] John Morris Williams, Executive Director; Okmulgee Gina L. Hendryx, General Counsel; Jim EMILY BUCHANAN, MARK RAMSEY, Claremore Calloway, Director of Management Assistance Advertising Manager Program; Craig D. Combs, Director of Admin- [email protected] MEGAN L. SIMPSON, istration; Susan Damron Krug, Director of Buffalo Educational Programs; Beverly Petry Lewis, Administrator MCLE Commission; Carol A. LESLIE TAYLOR, Ada Manning, Director of Communications; Travis Pickens, Ethics Counsel; Robbin Watson, Direc- JUDGE ALLEN J. WELCH, tor of Information Technology; Jane McConnell, Oklahoma City Coordinator Law-related Education; Loraine Dillinder Farabow, Tommy Humphries, OFFICERS & Debbie Maddox, Katherine Ogden, Steve Sullins, Assistant General Counsels BOARD OF GOVERNORS Manni Arzola, Debbie Brink, Laura Brown, DAVID A. POARCH JR., President, Norman; Emily Buchanan, Susan Carey, Tanner GLENN A. DEVOLL, Vice President, Oklaho- Condley, Nickie Day, Dieadra Florence, ma City; GARVIN ISAACS JR., President-Elect, Oklahoma City; Johnny Marie Floyd, Matt Gayle, Brandon RENÉE DEMOSS, Immediate Past President, Tulsa; DEIRDRE Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Durrel Lattimore, Renee Mont- O’NEIL DEXTER, Sand Springs; JAMES R. GOTWALS, Tulsa; gomery, Sharon Orth, Larry Quinn, Lori ROBERT D. GIFFORD II, Oklahoma City; DOUGLAS L. JACKSON, Rasmussen, Wanda F. Reece, Tracy Sanders, Enid; JOHN W. KINSLOW, Lawton; RICKEY J. KNIGHTON II, Mark Schneidewent, William Thames, Norman; JAMES R. MARSHALL, Shawnee; SONJA R. PORTER, Jan Thompson, Krystal Willis & Oklahoma City; KEVIN T. SAIN, Idabel; RICHARD D. STEVENS, Roberta Yarbrough Norman; ROY D. TUCKER, Muskogee; JOHN M. WEEDN, Oklahoma Bar Association 405-416-7000 Miami; LEANNE MCGILL, Edmond, Chairperson, OBA Toll Free 800-522-8065 Young Lawyers Division FAX 405-416-7001 Continuing Legal Education 405-416-7029 The Oklahoma Bar Journal (ISSN 0030-1655) is published three Ethics Counsel 405-416-7055 times a month in January, February, March, April, May, August, General Counsel 405-416-7007 September, October November and December and bimonthly in Law-related Education 405-416-7005 June and July by the Oklahoma Bar Association, 1901 N. Lincoln Lawyers Helping Lawyers 800-364-7886 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage Mgmt. Assistance Program 405-416-7008 paid at Oklahoma City, Okla. Mandatory CLE 405-416-7009 OBJ & Communications 405-416-7004 Subscriptions $60 per year except for law students registered with Board of Bar Examiners 405-416-7075 the OBA and senior members who may subscribe for $25; all active Oklahoma Bar Foundation 405-416-7070 members included in dues. Single copies: $3 Postmaster Send address changes to the Oklahoma Bar Association, www.okbar.org P.O. Box 53036, Oklahoma City, OK 73152-3036.

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 3 4 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 Oklahoma Bar Association

table of contents Jan. 10, 2015 • Vol. 86 • No. 1 page

6 Index to Court Opinions

7 Supreme Court Opinions

55 Court of Civil Appeals Opinions

65 Calendar of Events

66 Disposition of Cases Other Than by Publication

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 5 Index to Opinions of Supreme Court

2014 OK 100 IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUC- TIONS - CIVIL S.C.A.D. No. 2014-79...... 7 2014 OK 106 TRINITY BAPTIST CHURCH, Plaintiff/Appellant, v. BROTHERHOOD MUTUAL INSURANCE SERVICES, LLC, Defendant, and SOONER CLAIMS SER- VICES, INC., Defendant/Appellee. No. 113,072...... 12 2014 OK 109 VANDELAY ENTERTAINMENT, LLC d.b.a. THE LOST OGLE, Appellant, v. MARY FALLIN, in her official Capacity as GOVERNOR OF THE STATE OF OKLA- HOMA; STATE OF OKLAHOMA, ex rel. OFFICE OF THE GOVERNOR, Appellees. No. 113,187...... 12 2014 OK 110 IN THE MATTER OF THE REINSTATEMENT OF KENNETH LLOYD MORGAN TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS SCBD No. 6089...... 19 2014 OK 111 RAJINE HESS & KELLY PARSONS, Individually and on behalf of persons similarly situated, Plaintiffs/Appellees, v. VOLKSWAGEN OF AMERICA, INC., Defendant/Appellant. No. 111,978...... 23 2014 OK 112 CHRISTOPHER L. TUCKER, Plaintiff/Appellant, v. THE COCHRAN FIRM-CRIMINAL DEFENSE BIRMINGHAM L.L.C., a foreign limited liability company, Defendant/Appellee. No. 111,181...... 31 2014 OK 113 State of Oklahoma ex rel. Oklahoma Bar Association, Petitioner, v. Richard M. Wintory, Respondent. SCBD 6119...... 4 1 2014 OK 114 IN RE: PROPOSED NEW RULE GRANTING SPECIAL TEMPORARY PER- MIT TO CURRENT MILITARY SPOUSE PURSUANT TO RULE TWO AND PRO- POSED AMENDMENT TO RULE SEVEN, SECTION (F) SCBD 6167...... 45 2014 OK 115 IN RE: PROPOSED RULE AMENDING THE RULES GOVERNING ADMIS- SION TO THE PRACTICE OF LAW IN THE STATE OF OKLAHOMA SCBD 6193...... 47 2014 OK 116 In the Matter of the Reinstatement of Patrick Ryan Busby to Membership in the Oklahoma Bar Association and to the Roll of Attorneys. SCBD No. 6126...... 48 2014 OK 117 IN THE MATTER OF THE APPLICATION OF THE OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY FOR APPROVAL OF $120 MILLION OKLAHOMA CAPITOL IMPROVEMENT AUTHORITY STATE FACILITIES REVENUE BONDS, SERIES 2014 (SERIES 2014 BONDS) No. 113,303...... 48 2014 OK 118 RACHAEL MONTGOMERY, individually, Plaintiff/Respondent, RACHAEL MONTGOMERY, as natural mother of Noah Orcutt, and NOAH ORCUTT, Plaintiffs, v. MORGAN POTTER, Defendant/Petitioner. No. 111,928...... 48 2014 OK 119 ROBERT RILEY PERRY, Plaintiff/Appellant, v. THE CITY OF NORMAN, a municipal corporation, Defendant/Appellee. No. 113,109...... 50

Index to Opinions of Court of Civil Appeals

2014 OK CIV APP 94 IN RE: CITY OF McLOUD INITIATIVE PETITION 2010-2 DE- ANNEXATION, THOMAS MORRIS, Appellant, vs. A. KAY HEINZ, CITY CLERK OF McLOUD, OKLAHOMA, Appellee. Case No. 110,204...... 55 2014 OK CIV APP 95 BRENDA LINAM, Plaintiff/Appellant, vs. WALMART STORES, INC., Defendant/Appellee. Case No. 112,299...... 59 2014 OK CIV APP 97 MICHAEL CARL DOLINA, Petitioner, vs. FABRICUT, INC., WAUSAU INSURANCE GROUP, and the WORKERS’ COMPENSATION COURT, Respondents. Case No. 112,595...... 60

6 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2014 OK 100 ¶ 6 These amended Instructions shall be effective thirty (30) days from the date this IN RE: AMENDMENTS TO THE Order is filed with the Clerk of this Court. OKLAHOMA UNIFORM JURY INSTRUCTIONS - CIVIL DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THE 24th DAY S.C.A.D. No. 2014-79. November 24, 2014 OF NOVEMBER, 2014. ORDER ADOPTING SUPPLEMENTAL /s/ Tom Colbert OKLAHOMA UNIFORM JURY CHIEF JUSTICE INSTRUCTIONS - CIVIL ALL JUSTICES CONCUR ¶1 The Court has reviewed the recommendations of the Oklahoma Supreme Court Com- Instruction No. 1.0 mittee for Uniform Civil Jury Instructions to Use of Electronic Devices and Research adopt several new proposed jury instructions. Prohibited The Court finds that the instructions should be adopted as modified by the Court. At this time, turn off all cell phones and other electronic devices. Do not use any electronic ¶2 It is therefore ordered, adjudged and devices while court is in session in this case. decreed that the revisions to the Instructions shall be available for access via internet from Do not use any electronic device or media, the Court website at www.oscn.net and pro- such as the telephone, a cell or smart phone, vided to West Publishing Company for publi- camera, recording device, Blackberry, PDA, cation. The Administrative Office of the Courts computer, the Internet, any Internet service, is requested to notify the judges of the District any text or instant messaging service, any Courts of the supplemental instructions set Internet chat room, blog, or website such as forth herein. Further, the District Courts of the Facebook, MySpace, YouTube, or Twitter, or State of Oklahoma are directed to implement any other way to find out any information these supplemental instructions effective thirty about this case or the parties or attorneys. (30) days from the date of this Order. It is very important that you abide by these ¶ 3 It is therefore ordered, adjudged and instructions because it is essential that you keep decreed that the adoption of proposed new your minds free and open at all times through- Instructions, as set out and attached to this out this trial and that you not be influenced by Order, are hereby adopted: Instruction Nos. 1, anything except the evidence you hear and see 28.11, 28.12, 28.13, 28.14, 28.15, 28.16, 30.1, 30.2, in the courtroom. Failure to follow these instruc- 30.3, 30.4. tions could result in the case having to be retried, and you will be in violation of your oath and the ¶ 4 The Court also accepts and authorizes the court’s order, which may result in your being updated Committee’s comments, as modified fined, put in jail, or both. by the Court, to be published, together with the above-referenced revisions and each Notes on Use amended page in the revisions to be noted at the bottom thereof as follows (Nov. 2014 Supp.). This Instruction should be given as soon as the case is called in the presence of the ¶ 5 As it did so previously, the Court today jury. The trial judge may also distribute declines to relinquish its constitutional or stat- hard copies of this Instruction to the jurors. utory authority to review the legal correctness of these authorized Instructions when it is called upon to afford corrective relief in any adjudicative context.

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 7 CHAPTER TWENTY EIGHT Notes on Use Defamation and Invasion of Privacy This instruction should be used to introduce the remaining instructions on inva- List Of Contents sion of privacy in this Chapter. Instruction No. 28.1 Defamation - Introduc- tory Instruction Comments Instruction No. 28.2 Defamation - Elements In McCormack v Oklahoma Pub. Co., 1980 (Public Figure Plaintiff) OK 98, ¶ 8, 613 P.2d 737, 740, the Oklahoma Supreme Court recognized the tort of inva- Instruction No. 28.3 Defamation - Elements sion of privacy in the four categories set (Private Figure Plaintiff) out in Restatement (Second) of Torts § Instruction No. 28.4 Defamation - Affirma- 652A (1977). tive Defense of Fair Comment Restatement (Second) of Torts § 652A Instruction No. 28.5 Defamation - Affirma- (1977) provides: tive Defense of Fair Reporting (1) One who invades the right of privacy of Instruction No. 28.6 Defamation - Affirma- another is subject to liability for the result- tive Defense of Good Faith ing harm to the interests of the other. Instruction No. 28.7 Defamation - Affirma- (2) The right of privacy is invaded by tive Defense for Statement Made by Another Person (a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or Instruction No. 28.8 Defamation - Affirma- tive Defense of Qualified Privilege (b) appropriation of the other’s name or likeness, as stated in § 652C; or Instruction No. 28.9 Defamation -Measure of Damages (c) unreasonable publicity given to the other’s private life, as stated in § 652D; or Instruction No. 28.11 Invasion of Privacy - Introductory Instruction (d) publicity that unreasonably places the other in a false light before the public, Instruction No. 28.12 Invasion of Privacy - as stated in § 652E. Elements (Intrusion Upon Seclusion) Both absolute and conditional privileges Instruction No. 28.13 Invasion of Privacy - Ele- ments (Appropriation of Right of Publicity) from the law of defamation may apply to claims for invasion of privacy that involve Instruction No. 28.14 Invasion of Privacy - publication. Elements (Publication of Private Facts) Restatement (Second) of Torts § 652F Instruction No. 28.15 Invasion of Privacy - (1977) provides: Elements (False Light) The rules on absolute privileges to pub- Instruction No. 28.16 Invasion of Privacy - lish defamatory matter stated in §§ 583 to Measure of Damages 592A apply to the publication of any matter Instruction 28.11 that is an invasion of privacy. Invasion of Privacy - Introductory Restatement (Second) of Torts § 652G Instruction (1977) provides: This is an action to recover damages for inva- The rules on conditional privileges to sion of privacy. [Plaintiff] claims that [specify publish defamatory matter stated in §§ 594 the facts that the plaintiff alleges constituted to 598A, and on the special privileges stat- the invasion of privacy: e.g., [Defendant] ed in §§ 611 and 612, apply to the publica- unreasonably placed [Plaintiff] in a false light tion of any matter that is an invasion of before the public]]. privacy.

8 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 Instruction 28.12 or services, without such person’s prior consent, or, in the case of a minor, the prior Invasion of Privacy - Elements (Intrusion consent of his parent or legal guardian, Upon Seclusion) shall be liable for any damages sustained In order to recover for invasion of privacy, by the person or persons injured as a result [Plaintiff] has the burden of proving the fol- thereof, and any profits from the unauthor- lowing elements by the greater weight of the ized use that are attributable to the use evidence: shall be taken into account in computing the actual damages. In establishing such 1. [Defendant] intentionally intruded upon profits, the injured party or parties are the privacy/(private affairs)/ (private con- required to present proof only of the gross cerns) of [Plaintiff]; revenue attributable to such use, and the 2. Without the consent of [Plaintiff]; and person who violated this section is required to prove his or her deductible expenses. 3. The intrusion was highly offensive to a Punitive damages may also be awarded to reasonable person. the injured party or parties. The prevailing Comments party in any action under this section shall also be entitled to attorney’s fees and costs. The Oklahoma Supreme Court stated in Gilmore v. Enogex, Inc., 1994 OK 76, ¶ 16, 878 The Oklahoma Court of Civil Appeals sum- P.2d 360, 366: marized the elements of a statutory right of publicity claim in Brill v. the Walt Disney Co., Oklahoma recognizes the common-law 2010 OK CIV APP 132, ¶ 10, 246 P.3d 1099, tort of invasion of privacy by intrusion 1103-04 (footnote omitted), as follows: upon one’s seclusion. In order to prevail on this claim, Gilmore had to prove the two In order to establish a prima facie case of elements of that tort: (a) a nonconsensual statutory violation of the right of publicity, intrusion (b) which was highly offensive to a plaintiff must plead facts establishing the a reasonable person. three elements of the claim: (1) Defendants knowingly used Brill’s name or likeness, Instruction 28.13 (2) on products, merchandise or goods, (3) Invasion of Privacy - Elements without Brill’s prior consent. Just as under (Appropriation of Right of Publicity) the Restatement, the statute only concerns the use of another person’s name, voice, In order to recover for invasion of privacy, signature, photograph or likeness, not the [Plaintiff] has the burden of proving the fol- name, photograph or likeness of another lowing elements by the greater weight of the person’s car. evidence: Instruction 28.14 1. [Defendant] knowingly used the name/ voice/signature/photograph/ likeness; Invasion of Privacy - Elements (Publication of Private Facts) 2. On/In products/merchandise/goods; In order to recover for invasion of privacy, 3. Without the consent of [Plaintiff]. [Plaintiff] has the burden of proving the fol- Comments lowing elements by the greater weight of the evidence: The right of publicity is protected both by the tort of invasion of privacy recognized in McCor- 1. [Defendant] made a public statement/dis- mack v Oklahoma Pub. Co., 1980 OK 98, ¶ 3, 613 closure/announcement/ declaration; P.2d 737, 739, and 12 O.S. 2011, § 1449(A), 2. Of private facts; which provides: 3. That were highly offensive to a reasonable Any person who knowingly uses anoth- person; and er’s name, voice, signature, photograph, or likeness, in any manner, on or in products, 4. Were not of legitimate concern to the public. merchandise, or goods, or for purposes of advertising or selling, or soliciting pur- chases of, products, merchandise, goods,

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 9 Comments 4. [Defendant] either knew the public [statement/disclosure/ announcement/declaration] Restatement (Second) of Torts § 652D was false and would place [Plaintiff] in a false (1977) provides: light, or [Defendant] had serious doubt as to One who gives publicity to a matter con- whether the public [statement/disclosure/ cerning the private life of another is subject announcement/declaration] was true or false to liability to the other for invasion of his and would place [Plaintiff] in a false light. privacy, if the matter publicized is of a kind Comments that Restatement (Second) of Torts § 652E (a) would be highly offensive to a reason- (1977) provides: able person, and One who gives publicity to a matter con- (b) is not of legitimate concern to the cerning another that places the other before public. the public in a false light is subject to liability The Oklahoma Supreme Court specified the to the other for invasion of his privacy, if elements of a claim for invasion of privacy by (a) the false light in which the other was publication of private facts in Guinn v. Church placed would be highly offensive to a rea- of Christ of Collinsville, 1989 OK 8, ¶ 41, 775 P.2d sonable person, and 766, 781, as follows: (b) the actor had knowledge of or acted In order to prevail on her claim for inva- in reckless disregard as to the falsity of the sion of privacy by publication of private publicized matter and the false light in facts, Parishioner had to prove the four ele- which the other would be placed. ments of that tort. She had the burden of showing that the Elders’ statements (1) In Colbert v. World Pub. Co., 1987 OK 116, ¶ 15, were highly offensive to a reasonable per- 747 P.2d 286, 292, the Oklahoma Supreme son, (2) contained private facts about Court decided that a standard of knowing or Parishioner’s life, (3) were a public disclo- reckless conduct was required for false light sure of private facts and (4) were not of invasion of privacy. legitimate concern to the Church of Christ Instruction 28.16 congregation. Invasion of Privacy - Measure of Damages Similarly, the Oklahoma Supreme Court set out the elements in Eddy v. Brown, 1986 OK 3, ¶ If you decide for Plaintiff [name], you must 11, 715 P.2d 74, 77, as follows: “Unreasonable then fix the amount of his/her damages. This is publicity of the private life of another is a tort the amount of money that will reasonably and with three constituent elements: [1] publicity fairly compensate him/her for the injury sus- [2] which is unreasonable and [3] is given as tained as a result of the invasion of privacy by private fact.” Defendant [name]. Instruction 28.15 In fixing the amount you will award him/her you may consider the following elements: Invasion of Privacy - Elements (False Light) 1. Financial losses, such as loss of earnings/ In order to recover for invasion of privacy, profits; [Plaintiff] has the burden of proving the following elements by the greater weight of the 2. The harm caused by the intrusion to pri- evidence: vacy; 1. [Defendant] made a public [statement/ 3. Personal humiliation; and disclosure/announcement/ declaration] about [Plaintiff]; 4. Mental anguish and suffering. 2. That placed [Plaintiff] in a false light OR before the public; 1. Financial losses, such as loss of earnings/ 3. The false light was highly offensive to a profits; and reasonable person; and

10 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 2. The value of the loss of the exclusive use of recover for the harm resulting to his repu- the name/voice/signature/photograph/like- tation from the publicity. One who is pub- ness of Plaintiff, [name]); licly placed in a false light, under § 652E, may recover damages for the harm to his OR reputation from the position in which he is 1. Financial losses, such as loss of earnings/ placed. profits; Accordingly, the damages instruction in 2. Injury to standing and reputation in the Instruction 28.16 should be tailored to fit the community; appropriate type of invasion of privacy. 3. Personal humiliation; and CHAPTER THIRTY 4. Mental anguish and suffering. Residential Real Property Condition Disclosure Act Note on Use List Of Contents The court should select the appropriate measure for damages based upon the nature of the Instruction No. 30.1 Residential Real Proper- invasion of privacy. The first alternative should ty - Introduction be used for intrusion upon solitude along with Instruction No. 30.2 Residential Real Proper- Instruction 28.12, supra. The second alternative ty - Definition of Defect should be used for appropriation of a right of publicity claim along with Instruction 28.13, Instruction No. 30.3 Residential Real Proper- supra. The third alternative should be used for ty - Elements publication of private facts or a false light claim Instruction No. 30.4 Residential Real Proper- along with Instruction 28.14 or 28.15, supra. ty- Measure of Damages Committee Comments Instruction No. 30.1 Restatement (Second) of Torts § 652H Residential Real Property — Introduction (1977) provides: Before making the contract for the sale of One who has established a cause of action residential real estate in this case, the seller was for invasion of his privacy is entitled to required to deliver to the buyer a property con- recover damages for dition disclosure statement as to whether the (a) the harm to his interest in privacy seller had actual knowledge of defects or infor- resulting from the invasion; mation in relation to [specify nature of property defects the Plaintiff alleges were not (b) his mental distress proved to have identified]. been suffered if it is of a kind that normally results from such an invasion; and Committee Comments (c) special damage of which the invasion Under 60 O.S. 2011, § 833, a seller (as is a legal cause. defined in id., § 832(2)) of residential real estate is required to deliver to a purchaser Comment a to § 652H states: either a written property disclaimer state- A cause of action for invasion of privacy, ment or written property disclosure state- in any of its four forms, entitles the plaintiff ment of whether the seller has actual to recover damages for the harm to the knowledge of defects or information in particular element of his privacy that is relating to the real estate as well as various invaded. Thus one who suffers an intru- notices. The property disclaimer statement sion upon his solitude or seclusion, under or property disclosure is required before § 652B, may recover damages for the depri- acceptance of an offer to purchase the vation of his seclusion. One whose name, property. Id. § 834. likeness or identity is appropriated to the Instruction No. 30.2 use of another, under § 652C, may recover for the loss of the exclusive use of the value Residential Real Property — Definition so appropriated. One to whose private life of Defect publicity is given, under § 652D, may

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 11 A “defect” is a condition, malfunction or Committee Comments problem that would have a materially adverse Under 60 O.S. 2011 § 837(B), the exclu- effect on the monetary value of the property, or sive remedy for failure to disclose a defect that would impair the health or safety of future in a property disclosure statement is the occupants of the property. “actual damages, including the cost of Committee Comments repairing the defect, suffered by the purchaser as a result of a defect existing in the See 60 O.S. 2011 § 832(9). A disclosure of a property as of the date of acceptance by the property’s square footage is not required seller of an offer to purchase.” White v. Lim, under the Residential Property Condition 2009 OK 79, ¶ 17, 224 P.3d 679, 685 Disclosure Act, because it is not a “defect” as (“Instructed by the Legislature’s declared defined in § 832(9). Lopez v. Rollins, 2013 OK intent, we hold that the mandatory, clear, CIV APP 43, ¶ 11, 303 P.3d 911, 916. and unmistakable language of 60 O.S. Instruction No. 30.3 Supp. 2003 §837 limits the right of a purchaser to recover for failure to disclose Residential Real Property — Elements known defects in residential property to Plaintiff [name] claims that Defendant those provided in the Disclosure Act.”). [name] has failed to disclose a defect or defects 2014 OK 106 in the residence that was actually known to Defendant [name] before the acceptance of the TRINITY BAPTIST CHURCH, Plaintiff/ offer of Plaintiff [name] to purchase the resi- Appellant, v. BROTHERHOOD MUTUAL dence. In order to recover on the claim for failure INSURANCE SERVICES, LLC, Defendant, to disclose a defect or defects in the residence, and SOONER CLAIMS SERVICES, INC., Plaintiff [name] has the burden of proving the Defendant/Appellee. following elements by the greater weight of the No. 113,072. December 11, 2014 evidence: CORRECTION ORDER 1. A material defect or defects existed in the residence; The Court’s opinion, filed herein on Decem- ber 9, 2014, is hereby corrected in the following 2. Defendant [name] failed to disclose the manner: defect or defects in the residence to Plaintiff [name] in a written disclosure statement [or an ¶4 — the next-to-last word is corrected from amended disclosure statement]; “tis” to “its” 3. Defendant [name] had actual knowledge ¶7 — in the second sentence, “Sooners” is of the defect or defects before the acceptance of corrected to “Sooner’s” and “Judgmet” is cor- the offer to purchase the residence; and rected to “Judgment” 4. Plaintiff [name] suffered damages. ¶21 — “Mercedez-Benz” is corrected to “Mer- Instruction No. 30.4 cedes-Benz” Residential Real Property — Measure of Footnote 7 — in the explanatory parentheti- Damages cal for the second citation, “indepenant” is corrected to “independent” A seller who fails to disclose a defect or defects in a property disclosure statement is Except as corrected by this order, the Decem- liable for damages to the purchaser. If you ber 9, 2014 opinion shall remain unchanged. decide that Defendant [name] failed to disclose DONE BY ORDER OF THE SUPREME a defect or defects in a property disclosure COURT THIS 11th DAY OF DECEMBER, 2014. statement, you must then fix the amount of damages that Plaintiff [name] may recover. /s/ John F. Reif This is the amount of money that will reason- ACTING CHIEF JUSTICE ably and fairly compensate [him/her] for the 2014 OK 109 actual damages sustained as a result of the defect or defects, including the cost of repair- VANDELAY ENTERTAINMENT, LLC d.b.a. ing the defect or defects. THE LOST OGLE, Appellant, v. MARY FALLIN, in her official Capacity as

12 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 GOVERNOR OF THE STATE OF ¶3 Vandelay filed suit in district court pursu- OKLAHOMA; STATE OF OKLAHOMA, ant to § 24A.17(B)(1)2 of the Oklahoma Open ex rel. OFFICE OF THE GOVERNOR, Records Act, to compel the Governor to release Appellees. the records that were withheld. A copy of the March 29 letter from the Governor’s general No. 113,187. December 16, 2014 counsel was attached to Vandelay’s petition. ON APPEAL FROM THE DISTRICT Vandelay disputed the Governor’s claim of COURT FOR OKLAHOMA COUNTY privilege, contending the withheld material was not specifically exempted from release by HONORABLE BARBARA SWINTON, the Open Records Act, nor was it required to be TRIAL JUDGE kept confidential by any constitutional provi- ¶0 Vandelay Entertainment, LLC d.b.a. The sion, statute, court decision or common law. In Lost Ogle filed suit in district court to obtain her answer, Governor Fallin acknowledged the records that the Governor withheld when March 29 letter and formally “invoked the doc- responding to Vandelay’s Open Records Act trine of executive privilege with its deliberative request. The district court ruled the Governor process component” as a legal basis to with- had a common law privilege to withhold the hold the material in question. records in question. Vandelay appealed and ¶4 The parties presented the case for decision this Court retained the appeal. Upon review, on cross motions for summary judgment. Cit- we affirm on different grounds. ing 12 O.S.2011, § 2,3 the district court ruled AFFIRMED. that Oklahoma had preserved common law to govern matters not otherwise addressed by the Brady Henderson, ACLU of OKLAHOMA Oklahoma Constitution, statute or court deci- FOUNDATION, Oklahoma City, Oklahoma, sions. The district court further ruled common Attorneys for Plaintiff/Appellant, law recognized a deliberative process privi- Neal Leader, Senior Assistant Attorney Gener- lege, but directed the Governor to submit a al, Oklahoma City, Oklahoma, Attorney for privilege log for judicial review to ensure the Appellee. withheld material fell within the privilege. REIF, V.C.J.: ¶5 Satisfied with the trial court’s summary judgment recognizing her claim of privilege, ¶1 The legal controversy between Vandelay Governor Fallin waived the privilege and Entertainment, LLC d.b.a. The Lost Ogle and released the 100 pages previously withheld. In Governor Mary Fallin stems from the Gover- doing so, the Governor filed a notice informing nor’s refusal to release certain records in 1 the court of the waiver and documents release. response to a request by Vandelay pursuant to Copies of the particular documents were not the Open Records Act, 51 O.S.2011 and filed in the record. Supp.2013, §§ 24A.1 - 24A.29. The material facts underlying this controversy are not in ¶6 Attached to this notice was a letter from dispute. the Governor’s general counsel to Vandelay explaining the Governor’s decision. This letter ¶2 Vandelay asked Governor Fallin to release stated that the Governor’s had theretofore all records relating to her decisions regarding acted (1) “To ensure that the Executive Privi- funding and programs under the Affordable lege/Deliberative Process Privilege continue to Care Act. In responding to this request, Gover- be recognized in Oklahoma” and (2) “To ensure nor Fallin released over 51,000 pages of written frank, candid and confidential discussions material, but withheld 100 pages under a claim essential to the Governor’s decision making of “executive privilege.” In a letter to Vandelay remain confidential, because senior advisors dated March 29, 2012, the Governor’s general need to present the Governor with conflicting counsel explained: “In this document produc- ideas, thoughts and opinions without concern tion, the Governor has invoked several legal over the consequences that would follow from privileges, including ones involving senior compelled public dissemination of their ad- executive branch officials who are offering vice.” (Emphasis added). advice and counsel to the governor.” (Empha- sis added). ¶7 This letter further explained that “the passage of time since the deliberations took place has resulted in the deliberative advice becom-

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 13 ing far less sensitive.” The letter also related Oklahoma Constitution. In using the word that the Governor released the withheld docu- “supreme” to modify the term “executive ments out of concern for “transparency and power,” we believe the people intended to vest openness in government” and “in consultation the Governor with the complete or full-range with many of those who provided the advice in of executive powers that were recognized at the documents.” the time the Oklahoma Constitution was adopted. In other words, executive privilege is ¶8 Despite the release of the withheld mate- not just a vestige of common law, but is an rial, Vandelay brought this appeal, contending inherent power of the Governor. the district court erred in recognizing a common law privilege exempting the Governor ¶13 In Ford v. Board of Tax-Roll Corrections, from complying with Vandelay’s Open Records 1967 OK 90, ¶ 21, 431 P.2d 423, 428, this Court Act request. Because this issue is a matter of recognized that inherent powers are reflected broad public interest and there is a likelihood in the separation of powers clause in Article 4, of future repeated conflict between the Gover- § 1 of the Oklahoma Constitution. This clause nor’s claim of privilege and the Open Records states “the Legislative, Executive and Judicial Act, this Court finds Vandelay’s appeal is not departments of government shall be separate moot. Firefighters Pension v. City of Spencer, 2009 and distinct, and neither shall exercise the pow- OK 73, ¶¶ 4-5, 237 P.3d 125,129-130. ers properly belonging to either of the others.” (Emphasis supplied by the Ford opinion). Id. at ¶9 These same considerations dictate that ¶ 15, 431 P.2d at 427. While the Ford case dealt this Court should retain this appeal for deci- with a question concerning the inherent power sion. Upon de novo review,4 we agree with the of the judicial branch, the principles and analy- trial court that Oklahoma Governors have a sis this Court applied in recognizing the inher- privilege to refuse to disclose advice they ent power of the judiciary are the same for receive in confidence from “senior executive recognizing and protecting the inherent pow- branch officials” when deliberating discretion- ers of the other coequal branches. ary decisions and shaping policy. We do so, however, on grounds different than those artic- ¶14 In Ford, this Court concluded the “pow- ulated by the trial court. ers properly belonging” to a branch of government were those “which [are] essential to the ¶10 In looking to common law, the trial court existence, dignity and functions [of the branch]” was no doubt persuaded by City of Colorado and include inherent powers. Id. at ¶ 21, 431 Springs v. White, 967 P.2d 1042 (Colo. 1998), P.2d at 428 (citation omitted). One test for cited in the Governor’s summary judgment inherent power is whether the subject matter is briefing. This Colorado case sets forth a thor- “so ultimately connected and bound up with [a ough discussion of the common law origin and branch’s function] that the right to define and evolution of executive privilege in general and regulate [the subject matter] naturally and logi- the deliberative process component in particu- cally belongs to the [branch of government].” Id. lar. Id. at 1047-58. Governor Fallin’s claim of executive privilege to ¶11 The Colorado opinion points out that protect confidential advice from “senior execu- executive privilege originated in the eighteenth tive branch officials” meets this test. and nineteenth centuries within the concept of ¶15 Several provisions in the Constitution the English “crown privilege.” Id. at 1047. The addressing the express powers of the Governor opinion also notes that the deliberative process reflect that the Governor has discretion in exer- component of executive privilege is often cising those powers. Article 6, § 6 provides referred to as “the common sense-common law “The Governor [as] Commander-in Chief of privilege.” Id. at 1048. the militia of the State . . . may call out the same ¶12 Having existed as an aspect of executive to execute the laws, protect the public health, office prior to the adoption of the Oklahoma suppress insurrection, and repel invasion.” Constitution, we must conclude that the people (Emphasis added). Article 6, § 7 states “The at Statehood intended to preserve this common Governor shall have power to convoke the law privilege for the office of the Governor by Legislature . . . on extraordinary sessions [to the constitutional declaration, “The Supreme consider subjects] as the Governor may recom- Executive power shall be vested in a Chief mend for consideration.” (Emphasis added). Magistrate, who shall be styled ‘The Governor Article 6, § 9 declares “At every session of the of the State of Oklahoma.’” Article 6, § 2 of the Legislature . . . the Governor shall communi-

14 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 cate by message . . . and shall recommend such candid, objective, and even blunt or harsh matters to the Legislature as he [or she] shall opinions in [executive] decisionmaking.” Id. judge expedient [and] communicate . . . such ¶18 The United States Supreme Court con- matters as he [or she] may elect . . . .” (Empha- cluded these “considerations justif[y] a presump- sis added). Article 6, § 10 provides “The Gover- tive privilege.” Id. The Court also concluded that nor shall have power to grant . . . commuta- such a privilege “is fundamental to the operation tions, pardons and paroles . . . upon such con- of Government and inextricably rooted in the ditions and with such restrictions and limita- separation of powers under the Constitution.” Id; tions as [the Governor] may deem proper . . . .” accord, Freedom Foundation v. Gregoire, 310 P.3d (Emphasis added). Furthermore, the exercise 1252, 1258 (Wash. 2013) (“Refusal to recognize of discretion is clearly implied in the general the gubernatorial communications privilege veto power, Article 6, § 11; the line item veto for [to deny a legislatively authorized records appropriation bills, Article 6, § 12; and the request] would subvert the integrity of the appointment power, Article 6, § 13. governor’s decision making process [thereby] ¶16 In addition, statutory law also gives the damaging the functionality of the executive Governor discretion to do certain acts. For branch and transgressing the boundaries set by example, 74 O.S.2011, § 2 provides “The Gover- . . . separation of powers.”) nor shall have the power to remove any offi- ¶19 In considering Governor Fallin’s claim of cers appointed by him [or her] . . . and may privilege in the case at hand, we agree with the then fill the same as provided in cases of United States Supreme Court’s view that “com- vacancy.” (Emphasis added). 74 O.S.2011, § 5 plete candor and objectivity from advisers calls states “Whenever the Governor is satisfied that for great deference from the courts” in deter- any crime has been committed within the state, mining the scope of executive privilege. 418 and that the person charged therewith has not U.S. at 706. An Oklahoma Governor has no less been arrested, or has escaped therefrom, in his need than the President of the United States to [or her] discretion he [or she] may offer a receive “candid, objective, and even blunt or reward . . . for the arrest and delivery . . . of the harsh opinions” provided by “senior executive person so charged . . . .” (Emphasis added). 74 branch officials” as well as the need to refuse to O.S.2011, § 7 declares “The Governor of the disclose such advice that was solicited or State of Oklahoma is hereby authorized, at the received confidentially. expense of the state, and within the limitations ¶20 This subject matter is so ultimately con- maintain in such of the appropriation . . . to nected and bound up in the Governor’s execu- manner as the governor deems necessary and tive branch function that the right to regulate appropriate, the mansion provided for his [or receipt and disclosure of such advice by way of her] occupancy by the State of Oklahoma and a privilege naturally and logically belongs to to pay all expenses connected with said occu- the executive branch. Ford, ¶ 21, 431 P.2d at pancy.” (Emphasis added). 428. Stated another way, a privilege to protect ¶17 The sheer number, diversity and magni- confidential advice provided by “senior execu- tude of discretionary decisions entrusted to the tive branch officials” is essential to the exis- Governor demonstrate the public interest is tence, dignity and functions of the Governor as best served by the Governor seeking and chief executive and lies within the Governor’s receiving advice to aid in deliberations and inherent power. Id. The principle of separation decision-making. The United States Supreme of powers expressly declared in Article 4, § 1 Court has observed “[T]hose who assist [exec- protects this privilege from encroachment by utive decision-makers] must be free to explore Legislative acts, such as the Open Records Act. alternatives in the process of shaping policies ¶21 Unlike the claim of absolute privilege and making decisions and to do so in a way considered in United States v. Nixon, Governor many would be unwilling to express except Fallin has recognized that the deliberative pro- privately.” United States v. Nixon, 418 U.S. 683, cess component of executive privilege that she 708 (1974)(superseded by statute on other claims in this case provides a qualified privi- grounds). The Court further observed that “[T] lege. A qualified privilege is one that “applies he confidentiality of [advisory] conversations in a particular instance if the purpose of the and correspondence [is grounded in] the neces- privilege is thereby served.” City of Colorado sity for the protection of the public interest in Springs v. White, 967 P.2d at 1051. “The primary

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 15 purpose of the [deliberative process] privilege deliberative process privilege may even yield, is to protect the frank exchange of ideas and when a substantial or compelling need for dis- opinions critical to the government’s decision- closure is shown. Once the Governor estab- making [sic] processes where disclosure would lishes that a document satisfies the criteria discourage such discussion in the future[.]” Id. above, the burden shifts to the party requesting a document to show (1) a substantial or com- ¶22 A qualified privilege is also one in which pelling need for disclosure, and (2) this need the burden falls upon the government entity for disclosure outweighs the public interest in asserting the privilege. Id. at 1053. Had Gover- maintaining the confidentiality of the execu- nor Fallin not waived the privilege, she would tive communication. Id. at 1051. A case in have had the burden, upon in camera review, which there is reason to believe that docu- to demonstrate that the withheld documents ments may shed light on government wrong- fell within the privilege. Significantly, Gover- doing may present a substantial or compelling nor Fallin’s brief in support of her motion for need for disclosure that would outweigh the summary judgment recognized this burden need for confidentiality. Id. and requested the opportunity to demonstrate that the retained documents are protected by ¶26 In recognizing the deliberative process the deliberative process privilege. component of executive privilege, we are mindful that the Legislature enacted the Open ¶23 Based on the limited summary judgment Records Act to assist the people in their over- record presented for review, we need not deter- sight of State government and to aid the people mine the full scope of the deliberative process in the exercise of their inherent power to alter component of executive privilege, but must or reform their government. Article 2, § 1 of the only delineate the burden in cases of advice Oklahoma Constitution. This Court has said solicited or received from “senior executive that public access to government files (1) “per- branch officials.” We leave for a more appro- mits checks against the arbitrary exercise of priate case the issue of whether the privilege official power and secrecy in the political pro- extends to advice solicited from parties outside cess,” (2) “gives private citizens the ability to of state government. monitor the manner in which public officials ¶24 The burden in cases involving advice discharge their public duties,” and (3) “ensures from “senior executive branch officials” [performance] in an honest, efficient, faithful, includes a showing that the advice was (1) pre- and competent manner.” Oklahoma Public decisional, and (2) deliberative (i.e., involved Employees Association v. State ex rel. Oklahoma personal opinions, as opposed to purely factu- Office of Personnel Management, 2011 OK 68, ¶ al, investigative material). Id. at 1052. In addi- 36, 267 P.3d 838, 851. tion, the burden in the case at hand would also ¶27 However, the deliberative process com- include a showing that (1) the Governor solic- ponent of executive privilege is also grounded ited or received advice from a “senior execu- in a strong public interest. The Governor’s tive branch official” for use in deliberating need for confidential advice in deliberation of policy or making a discretionary decision, (2) policy and decision-making is just as impor- the Governor and the “senior executive branch tant to “[the people’s] protection, security, and official” knew or had a reasonable expectation benefit, and to promote their general welfare,” that the advice was to remain confidential at as the people’s access to information. Article 2, the time it was provided to the Governor, and § 1 of the Oklahoma Constitution. (3) the confidentiality of the advice was maintained by the Governor and the “senior execu- ¶28 By vesting the Governor with supreme tive branch official.” While Governor Fallin did executive power and delegating discretionary not define or specify whom she considers to be decision-making authority to the Governor, we “senior executive branch officials,” this group believe the people placed checks on their would reasonably include the Governor’s gen- access to certain types of confidential advice eral counsel and staff, the members of the Gov- the Governor considers, and on legislative ernor’s cabinet, executive branch officers elect- power to mandate disclosure of such advice. In ed statewide, and executive branch agency place of on demand disclosure, in camera review and judicial balancing of competing heads appointed by the Governor. public interests provide a middle ground ¶25 Governor Fallin’s answer and summary accommodation when there is a question over judgment briefing also acknowledged that the whether the privilege exists or should be

16 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 enforced. These safeguards fully protect the Constitution, I write separately to specify the public from abuse of the privilege, while shield- nature of the privilege and to more clearly ing communications ultimately found to war- highlight its boundaries. The majority’s use of rant protection from public disclosure. the label “deliberative process privilege” to describe the constitutional privilege that ¶29 In conclusion, we hold that the trial court shields the Governor’s communications with correctly ruled that the Governor has a privi- her advisors blurs the line between distinct lege to protect confidential advice solicited or facets of executive privilege in a manner likely received from “senior executive branch offi- to cause confusion in the future. cials” for use in deliberating policy and making discretionary decisions. We disagree, how- ¶2 The majority describes in detail the unique ever, with the trial court’s conclusion that this constitutional role of the Governor and the privilege rests solely upon common law. We importance of candor in her communications hold that this privilege is a “power properly with her advisors. The executive privilege that belonging” to the Governor’s constitutional protects such candor is built in part upon the office as head of the executive branch and is decision of the Supreme Court of the United protected by the separation of powers clause in States in United States v. Nixon, 418 U.S. 683, 94 Article 4, § 1. The need for confidential advice S.Ct. 3090, 41 L.ED.2d 1039 (1974) (superseded from “senior executive branch officials” for use by statute on other grounds), which the major- in the Governor’s deliberations and decision- ity favorably quotes at several points when it making is “essential to the existence, dignity compares the duties and powers of the Gover- and functions” of the executive branch. Also, nor to those of the President. The qualified the need to protect such confidential advice is executive privilege described by the Court in so ultimately connected and bound up with the Nixon has also been labeled the “chief execu- executive function that the right to regulate tive communications privilege” in order to disclosure of such confidential advice by way distinguish it from the larger category of privi- of a privilege naturally and logically belongs to leges that may fall under the umbrella of exec- the executive branch. utive privilege. See Matthew W. Warnock, Sti- fling Gubernatorial Secrecy: Application of Execu- ¶30 This privilege is not absolute, however, tive Privilege to State Executive Officials, 35 Cap. and is subject to the check and balance of in U. L. Rev. 983, 984-85 (2007). camera judicial review, in lieu of legislatively- mandated public disclosure. The Governor has ¶3 Such specificity is necessary in order to the burden upon in camera judicial review to distinguish the chief executive communica- demonstrate that any material relating to such tions privilege from the common-law-based confidential advice satisfies the criteria set deliberative process privilege theory relied forth in this opinion. Even confidential advice upon by the trial court in this cause and adopt- that satisfies this criteria can be subject to dis- ed by the majority. The former is specific to the closure where (1) the requesting party can chief executive and rooted in the Constitution show a substantial or compelling need for dis- while the latter applies more generally to gov- closure and (2) the need for disclosure out- ernment actors in the executive branch and weighs the public interest in maintaining the originated at common law. Both were origi- confidentiality of the advice. nally federal doctrines that have been adopted to varying degrees by the states. The difference AFFIRMED. was thoughtfully set out by the United States ¶31 COLBERT, C.J., REIF, V.C.J., KAUGER, Court of Appeals for the D.C. Circuit in In re WATT, WINCHESTER, EDMONDSON, TAY- Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), where LOR, and GURICH, JJ., concur. the court stated: ¶32 COMBS, J., concurs in part; dissents in [w]hile the presidential communications part (by separate writing). privilege and the deliberative process privilege are closely affiliated, the two privi- COMBS, J., concurring in part, dissenting in leges are distinct and have different scopes. part: Both are executive privileges designed to ¶1 While I concur with the majority’s deter- protect executive branch decisionmaking, mination that the Governor possesses a quali- but one applies to decisionmaking of exec- fied executive privilege based upon her inher- utive officials generally, the other specifi- ent powers as Governor under the Oklahoma cally to decisionmaking of the President.

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 17 The presidential privilege is rooted in con- status to all communications that may be made stitutional separation of powers principles to the Governor. The court in In re Sealed Case and the President’s unique constitutional considered this issue as well, and reached the role; the deliberative process privilege is following conclusion: primarily a common law privilege. [w]e believe therefore that the public inter- ¶4 By relying heavily upon Nixon and the est is best served by holding that commu- Governor’s unique constitutional role and nications made by presidential advisers in powers, while at the same time determining the course of preparing advice for the that it is the common-law-based deliberative President come under the presidential process component of executive privilege that communications privilege, even when controls here, the majority engages in a blend- these communications are not made directing of two distinct legal theories of executive ly to the President. Given the need to pro- privilege. The Supreme Court of Alaska, in vide sufficient elbow room for advisers to Gwich’in Steering Committee v. State, Office of the obtain information from all knowledgeable Governor, succinctly described the difference: sources, the privilege must apply both to [w]e stated in Capital Information Group v. communications which these advisers State, Office of the Governor that we consid- solicited and received from others as well ered the terms “executive privilege” and as those they authored themselves. The “deliberative process privilege” to be syn- privilege must also extend to communica- onymous for purposes of that discussion. tions authored or received in response to a But the two terms are not identical. Instead, solicitation by members of a presidential the deliberative process privilege is a adviser’s staff, since in many instances “branch” of a broader group of govern- advisers must rely on their staff to investi- mental privileges. The roots of the delib- gate an issue and formulate the advice to erative process privilege lie in the com- be given to the President. We are aware mon law; it protects the mental processes that such an extension, unless carefully of government decisionmakers from circumscribed to accomplish the purposes interference, not constitutional notions of of the privilege, could pose a significant separation of powers. risk of expanding to a large swath of the executive branch a privilege that is bot- 10 P.3d 572, 579 (Alaska 2000) (emphasis added) tomed on a recognition of the unique role (footnotes omitted). The majority opinion appears to supply a constitutional basis for the of the President. In order to limit this risk, deliberative process privilege stemming from the presidential communications privi- the separation of powers doctrine, which is a lege should be construed as narrowly as is significant departure from the federal prece- consistent with ensuring that the confi- dent responsible for both distinct branches of dentiality of the President’s decisionmak- executive privilege. Further, the deliberative ing process is adequately protected. Not process privilege, as the In Re Sealed Case court every person who plays a role in the noted, can apply to other executive branch development of presidential advice, no entities besides the chief executive, and the matter how remote and removed from the majority’s blending of the two ideas makes it President, can qualify for the privilege. In difficult to distinguish where the Governor’s particular, the privilege should not extend constitution-based executive privilege ends to staff outside the White House in execu- and the deliberative process privilege begins. tive branch agencies. Instead, the privilege should apply only to communications ¶5 Recognizing a clear distinction between authored or solicited and received by the two doctrines helps prevent such confu- those members of an immediate White sion. While the chief executive communica- House adviser’s staff who have broad and tions privilege may be more all-encompassing significant responsibility for investigat- with regards to documents and more difficult ing and formulating the advice to be to surmount, it is also limited in nature and less given the President on the particular mat- broadly applicable than the deliberative pro- ter to which the communications relate. cess privilege. Most importantly, the chief executive communications privilege should 121 F.3d at 751-52 (emphasis added) (internal not be construed so as to extend privileged citations omitted).

18 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 ¶6 Complete candid objectivity from advi- OKLAHOMA BAR ASSOCIATION AND sors may call for great deference from the TO THE ROLL OF ATTORNEYS courts, Nixon, 418 U.S. at 706, but the same can- SCBD No. 6089. December 16, 2014 not be said for potentially unsolicited advice and lobbying directed at the Governor that PETITION FOR REINSTATEMENT comes from outside the office of the chief ¶0 Petitioner Kenneth Lloyd Morgan filed a executive, even if such advice factored into the petition for reinstatement to membership in decisional process on an issue. To allow other- the Oklahoma Bar Association. The Oklahoma wise would make the privilege overbroad and Bar Association does not oppose his reinstate- allow it to grow beyond its role in protecting ment. The Trial Panel of the Professional Respon- the unique role of the chief executive. sibility Tribunal unanimously recommended ¶7 In conclusion, I agree that the Governor’s reinstatement. After our de novo review, we find communications with her advisors are subject the Petitioner should be reinstated. to a qualified executive privilege that has its PETITION FOR REINSTATEMENT IS basis in the Governor’s inherent powers and GRANTED; PETITIONER IS ORDERED the Constitution. However, that privilege is TO PAY COSTS distinct from the common-law-based deliberative process privilege and I write separately to Allen M. Smallwood, Tulsa, Oklahoma, for stress that I disagree with the majority’s deci- Petitioner. sion to blend these two branches of executive Gina L. Hendryx, General Counsel, Oklahoma privilege into a hybrid entity. Bar Association, Oklahoma City, Oklahoma, REIF, V.C.J.: for Respondent. COMBS, J. 1. Section 24A.5 of the Open Records Act provides in pertinent part: All records of public bodies and public officials shall be open to any ¶1 This case was commenced by the Peti- person for inspection, copying, or mechanical reproduction during tioner, Kenneth Lloyd Morgan (“Morgan”), for regular business hours; provided: reinstatement to membership in the Oklahoma 1. The Oklahoma Open Records Act, Sections 24A.1 through 24A.28 of this title, does not apply to records specifically required by law to be Bar Association (“OBA”), following his resig- kept confidential[;] nation pending disciplinary proceedings. Rule . . . . 5. A public body must provide prompt, reasonable access to its records 11, Rules Governing Disciplinary Proceedings but may establish reasonable procedures which protect the integrity (“RGDP”), 5 O.S. 2011, Ch. 1, App. 1-A. and organization of its records and to prevent excessive disruptions of its essential functions. FACTUAL AND PROCEDURAL . . . . 51 O.S.2011 § 24A.5. BACKGROUND 2. This section provides in pertinent part: B. Any person denied access to records of a public body or public ¶2 On December 22, 2007, Morgan and his official: best friend and law partner, Andre Carolina, 1. May bring a civil suit for declarative or injunctive relief, or both, but were having a few drinks after work. At one such civil suit shall be limited to records requested and denied prior to filing of the civil suit; point in the evening the two decided to go to a . . . . different location. Morgan drove. The record 12 O.S.2011, § 24A.17(B)(1). 3. This section states: indicates Morgan engaged in drag racing with The common law, as modified by constitutional and statutory law, another vehicle. It is alleged the other vehicle judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule swerved into Morgan’s lane causing him to of the common law, that statutes in derogation thereof, shall be strictly swerve into oncoming traffic. A wreck ensued, construed, shall not be applicable to any general statute of Oklahoma; injuring Morgan, some occupants of the oncom- but all such statutes shall be liberally construed to promote their object. 12 O.S.2011, §2. ing vehicle and fatally wounding Mr. Carolina. 4. An order that grants summary relief disposes solely of law ques- The record reflects Morgan’s blood alcohol tions and is reviewable by a de novo standard of review. Under this 1 standard, an appellate court claims for itself plenary, independent and level was right at the threshold of .08. non-deferential authority to re-examine a trial court’s legal rulings. Manley v. Brown, 1999 OK 79, § 22 n.30, 989 P.2d 448, 455 n.30 (citations ¶3 On August 11, 2008, Morgan pled nolo omitted). contendere to a felony count of manslaughter in the first degree-automobile (21 O.S. § 711) 2014 OK 110 and a misdemeanor count of driving under the IN THE MATTER OF THE influence-personal injury accident-first offense REINSTATEMENT OF KENNETH LLOYD (47 O.S. § 11-904 (A) (1)).2 Morgan received a 5 MORGAN TO MEMBERSHIP IN THE year deferred sentence on the felony charge

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 19 and a one year suspended sentence on the mis- novo standard of review. In the Matter of the demeanor charge. Reinstatement of Otis, 2007 OK 82, ¶7, 175 P.3d 357, 361. The applicant for reinstatement bears ¶4 In September 2008, a summary disciplin- the heavy burden of showing, by clear and ary grievance was lodged by the General convincing evidence, that reinstatement is war- Counsel’s Office of the OBA against Morgan ranted. In the Matter of the Reinstatement of pursuant to Rule 7, RGDP.3 On November 10, Blevins, 2002 OK 78, ¶4, 59 P.3d 510, 511. In our 2008, this Court entered an Order of Interim Suspension (Case No. SCBD 5449). Morgan determination whether to grant reinstatement requested a stay of suspension which was we will consider the applicant’s compliance denied by this Court. A hearing was set before with any relevant orders or opinions of this the Professional Responsibility Tribunal. On Court in the disciplinary matter as well as com- February 19, 2009, and prior to the hearing, pliance with Rule 11, RGDP. We give the Trial Morgan filed an affidavit seeking to resign his Panel’s recommendations considerable weight, membership in the OBA. The OBA filed an but this Court is not bound by them. In Matter application for an order approving Morgan’s of Reinstatement of Pacenza, 2009 OK 9, ¶7, 204 resignation. This Court granted the request P.3d 58, 61. This Court has also adopted other and issued an order on April 14, 2009,4 setting factors to consider. Each reinstatement decision the effective date of Morgan’s resignation at is determined on a case-by-case basis, carefully November 10, 2008. This Court’s April 14, weighing all factors. Munson, 2010 OK 27, ¶13. 2009, Order prohibited Morgan from applying I. PAST ORDERS OF THIS COURT for reinstatement prior to the expiration of five years from November 10, 2008.5 It further ¶7 Our April 14, 2009, Order in State ex rel. required him to comply with Rule 9.1,6 RGDP Oklahoma Bar Association v. Morgan, 2009 OK 23, and to pay costs in the amount of $90.00 to the 213 P.3d 559 (SCBD 5449), prohibited Morgan OBA within ninety days of the Order. from applying for reinstatement prior to the expiration of five years from November 10, ¶5 Morgan filed his Petition for Reinstate- 2008. The Order also required him to comply ment on December 9, 2013, five years and one with Rule 9.1, RGDP and to pay costs in the month from the date of his resignation. A hear- amount of $90.00 to the OBA within ninety ing was held before the Trial Panel of the Pro- days of the Order. As mentioned, Morgan filed fessional Responsibility Tribunal on March 6, his petition after five years from the effective 2014. In addition to Morgan, eleven other per- date of his resignation. Rule 9.1, RGDP requires sons testified before the Trial Panel. They a lawyer who resigns membership pending included partners of the law firm where Mor- disciplinary proceedings to notify all of the gan works as a legal assistant, the prosecutor lawyer’s clients having legal business then on Morgan’s criminal case, other members of pending within 20 days of the inability of the the Bar, a judge, the OBA Investigator and Mrs. lawyer to represent his or her clients and the Carolina, the widow of Andre Carolina. All necessity to seek other counsel. The lawyer is provided testimony which favored Morgan’s also required to file an affidavit that he or she reinstatement. The Report of the Trial Panel has complied with the rule. Substantial compli- was filed on May 12, 2014. By unanimous vote, ance is a requisite for reinstatement. The record the Trial Panel found Morgan should be rein- in SCBD 5449 shows Morgan filed his Rule 9.1 stated to the OBA upon completion of any affidavit on December 2, 2008, after his interim continuing legal education requirements and suspension on November 10, 2008. We find payment of costs. Morgan filed his Brief in Morgan substantially complied with Rule 9.1, Chief on May 27, 2014, and the General Coun- RGDP as ordered. The record also reflects Mor- sel for the OBA filed a Waiver of Answer Brief gan paid $90.00 to the OBA for costs related to on May 29, 2014. his SCBD 5449 case as required by this Court. STANDARD OF REVIEW II. RULE 11 OF THE RULES GOVERNING ¶6 It is the nondelegable responsibility of DISCIPLINARY PROCEEDINGS this Court to regulate the practice, ethics, licen- ¶7 Rules 11.1, 11.4 and 11.5, RGDP, 5 O.S. sure, and discipline of practitioners of the law 2011, Ch. 1, App. 1-A, provide specific require- in this state. In the Matter of the Reinstatement of ments for reinstatement. Munson, 2010 OK 27, ¶11, 236 P.3d 96, 100. We consider a petition for reinstatement by a de A. Rule 11.1, RGDP

20 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 ¶8 Rule 11.1, RGDP requires an applicant for must be satisfied the applicant complied with reinstatement to attach to the petition an affi- Rule 9.1, RGDP. davit concerning the applicant’s activities since termination and place(s) of residence since that ¶11 The Trial Panel unanimously found Mor- date. The affidavit shall also establish the gan should be reinstated. Specifically, it found applicant has not practiced law since termina- Morgan established by clear and convincing tion and he or she shall attach an affidavit of evidence he possessed good moral character the court clerks of the several counties where sufficient to entitle him to be admitted to the the applicant resided during termination estab- OBA. This decision having come after its con- lishing the applicant has not practiced law in sideration of the severity and circumstances their respective courts. Additionally, the appli- surrounding the offense shows the impact the cant must reimburse any monies paid out of evidence and testimony made on the Trial the Client’s Security Fund, pay a fee to cover Panel. Testimony presented showed how re- the expenses of an investigation and the cost of morseful Morgan was for the death of his an original and one copy of a transcript of the friend and partner, Andre Carolina. After hearing in connection with his or her applica- release from the hospital Morgan immediately tion, if one is held. The applicant is also prohib- went to Andre’s widow who forgave him for ited from petitioning for reinstatement prior to the incident. The testimony shows Morgan has the elapsing of 5 years from the date of resigna- tried to look after and help the Carolina family tion pending disciplinary proceedings. and continues to financially help Andre’s young daughter. He has kept in contact with ¶9 The record reflects Morgan attached an affidavit to his Petition for Reinstatement the family members who also look after him which substantially complied with Rule 11.1, when he frequently becomes depressed about RGDP. He provided detailed information con- the loss of Andre. Morgan and others testified cerning his residences and activities since his he has refused to drink since the accident. After resignation, which included working as a legal the accident, Morgan has many times volun- assistant. His affidavit did not specifically state tarily participated in speaking for the Victims he had not practiced law since his resignation, Impact Panel. Testimony reflects he has done however, he provided the required court clerk’s this since September 2008 and will whole affidavit showing he had not practiced law in heartedly continue to do so. Also, since Sep- the county where he resided. Testimony during tember 2008, he has spoken on behalf of the the March 6, 2014, hearing established he had Tulsa County Crash Court Program which not practiced law since his resignation and he holds sessions at high schools. Additionally, he had vigilantly taken steps to inform people he has attended counseling sessions through Law- was not an attorney. The record also reflects no yers Helping Lawyers. money was paid out of the Client’s Security ¶12 The Trial Panel found Morgan had not Fund therefore there was nothing for Morgan practiced law since his resignation. Although to reimburse. As previously shown, Morgan the Report of the Trial Panel did not make a waited over 5 years to apply for reinstatement and the payment of the costs of the investiga- specific finding concerning Morgan’s qualifications, it determined Morgan had complied tion and transcript will be made part of this 7 opinion. with “Rules 11, 1-11.4.” The evidence and testimony reflects the extent of Morgan’s qualifi- B. Rule 11.4, RGDP cations. Since 2009, Morgan has been a legal ¶10 Rule 11.4, RGDP requires an applicant assistant for the law firm of Carpenter, Stanley for reinstatement to affirmatively establish, by and Myers, now Stanley and Myers. His work clear and convincing evidence, that if readmit- there involves legal research and general para- ted the applicant’s conduct will conform to the legal duties. Mark Stanley, of Stanley and high standards of a member of the Bar. The Myers, testified if Morgan is reinstated he will applicant must also provide stronger proof of hire him as an attorney for his firm. Patrick his or her qualifications than one seeking Adams, a member of the Bar, also testified that admission for the first time. The severity of the Morgan has “more legal competence than a lot offense and the circumstances surrounding it of lawyers” he knew. Morgan’s affidavit also will also be taken into consideration, as well as, reflects the extent of his efforts to keep abreast whether restitution, if applicable, was made to of current legal matters. In addition to his work an injured party. Additionally, the Trial Panel at Stanley and Myers, since his resignation he

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 21 has taken many hours of continuing legal edu- the disrepute it has brought upon the legal cation courses and has read the bar journal. profession; 3) the extent of rehabilitation; 4) the original misconduct’s seriousness; 5) conduct ¶13 In the August 11, 2008, Order of Deferred after resignation; 6) time elapsed since the res- Sentence, a restitution hearing was set for Febru- ignation; 7) the applicant’s character, maturity, ary 9, 2009. However, the restitution hearing was and experience when suspended; and 8) the not held. Testimony reflects that all those who applicant’s present legal competence. In the had a right to restitution payments had been Matter of the Reinstatement of Munson, 2010 OK made whole outside of the criminal process. 27, ¶13, 236 P.3d 96, 101. ¶14 As mentioned previously, the record ¶19 Ms. Carolina testified she believed Mor- reflects Morgan complied with Rule 9.1, RGDP. gan was one of the most loyal and trustworthy In addition, testimony showed not only did people she knew and it was her desire for him Morgan handle his own client matters but he to be reinstated to practice law. She testified diligently made sure Andre’s clients found Morgan was always there for her family and new representation. she did not foresee that this would change. C. Rule 11.5, RGDP Steve Kunzweiler, the prosecutor on Morgan’s criminal case, also testified that Morgan dem- ¶15 Rule 11.5, RGDP, requires the Trial Panel onstrated the requisite moral fitness to be an to make specific findings concerning the appli- attorney. Since his resignation Morgan has cant’s moral character, whether the applicant repeatedly volunteered with the Victims Im- practiced law after resignation, and whether pact Panel and other organizations to help the applicant possesses the competency and prevent others from drinking and driving. He learning for admission to practice law. In addi- has completely refrained from drinking and tion, if the applicant had been suspended or has sought counseling. In his testimony Morgan terminated from the practice of law for 5 years expressed his understanding of the seriousness or longer, he or she will be required to pass the of his crime and the disrepute it has brought regular examination of the Board of Bar Exam- upon the legal profession. He has also continued iners unless the applicant can show by clear to keep abreast of current legal matters through and convincing evidence he or she has main- his work, reading the bar journal and continuing tained competency. legal education courses. Morgan further exhib- ¶16 The report of the Trial Panel made a spe- ited maturity in not only how he handled his cific finding that Morgan possessed good moral case load after his suspension but how he took character sufficient to be admitted to the OBA. care of Andre’s case load to ensure Andre’s cli- The Trial Panel also specifically found Morgan ents would have representation. had not engaged in the practice of law since his ¶20 There has been no negative testimony or resignation. Again, although the report did not evidence presented against Morgan’s reinstate- make a specific finding as to Morgan’s qualifi- ment. Although the crime was extremely seri- cations to practice law, the Trial Panel recom- ous, the record reflects it was a one-time incident mended his reinstatement.8 Further, the Trial made without malice and did not involve cli- Panel did not make a finding that it was neces- ents. Additionally, there is no evidence of Mor- sary for Morgan to again take and pass the bar gan having any previous disciplinary infrac- examination. The record supports Morgan has tions. We find Morgan has satisfied our inquiry kept himself informed as to current develop- into the other factors we consider on a petition ments in the law sufficient to maintain his for reinstatement. competency. APPLICATION FOR COSTS ¶17 It appears from the record Morgan has complied with the requirements of Rule 11, ¶21 The OBA filed an Application to Assess RGDP. Costs in the prosecution of this matter pursuant to Rule 11.1 (c), RGDP in the amount of III. OTHER FACTORS $1,229.66. The application is granted. ¶18 We have additionally adopted consider- CONCLUSION ation of the following factors when reviewing a petition for reinstatement: 1) the applicant’s ¶22 Based on our review of this matter, we present moral fitness; 2) demonstrated con- find the record shows by clear and convincing sciousness of the conduct’s wrongfulness and evidence Kenneth Lloyd Morgan has met the

22 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 prerequisites for reinstatement. Kenneth Lloyd lawyer with this Rule 9.1 shall be a condition precedent to any petition for reinstatement. Morgan is hereby reinstated to membership in 7. See infra n.8. the Oklahoma Bar Association and his name 8. The Trial Panel’s Report found Morgan convinced the Trial Panel by clear and convincing evidence that he has complied with “Rules 11, shall be placed on the Roll of Attorneys licensed 1-11.4” RGDP. One of the requirements under Rule 11.4, RGDP, is for to practice law in the State of Oklahoma. He the applicant to provide stronger proof of his or her qualifications than one seeking admission to the OBA for the first time. However, Rule shall further pay to the OBA the amount of 11.5, RGDP, requires the Trial Panel to make a specific finding on $1,229.66 for costs incurred in the prosecution “[w]hether or not the applicant possesses the competency and learning of this case within ninety (90) days from the in the law required for admission to practice law in the State of Okla- homa, . . .” We remind the Trial Panel of the need to make this specific date of this opinion. In addition, because this finding on competency and learning in any future reports. opinion was decided so late in the calendar year, Morgan shall not be required to pay bar 2014 OK 111 dues for 2014 or be required to take further RAJINE HESS & KELLY PARSONS, CLE for 2014. Individually and on behalf of persons PETITION FOR REINSTATEMENT IS similarly situated, Plaintiffs/Appellees, v. GRANTED; PETITIONER IS ORDERED VOLKSWAGEN OF AMERICA, INC., TO PAY COSTS Defendant/Appellant. ¶23 COLBERT, C.J., REIF, V.C.J, KAUGER, No. 111,978. December 16, 2014 WATT, WINCHESTER, EDMONDSON, COMBS APPEAL FROM THE DISTRICT COURT OF and GURICH, JJ., concur. POTTAWATOMIE COUNTY ¶24 TAYLOR, J., dissents. ¶0 The defendant/appellant, Volkswagen of COMBS, J. America, Inc. (Volkswagen) appealed the award of $7 million in attorney fees in a class 1. The record does not include police reports, however, it con- action suit. The appellees/plaintiffs, Rajine tains a June 4, 2008, Substance Abuse Assessment report wherein Hess & Kelly Parsons (collectively, Hess/claim- Morgan claimed he had a BAC of .08. The record does not contradict this statement. ants), represented the class. The fee amount 2. Case No. CF-2008-1108, Tulsa County District Court, Tulsa, Okla- was determined by the trial court pursuant to homa. 3. Rule 7.4, RGDP, provides: a settlement agreement making Volkswagen If the conviction becomes final without appeal, the General Counsel of responsible for “reasonable” attorney fees and the Oklahoma Bar Association shall inform the Chief Justice and the Court shall order the lawyer, within such time as the Court shall fix in costs associated with the litigation. Initially, the the order, to show cause in writing why a final order of discipline trial court awarded a fee of $3,610,719.15, an should not be made. The written return of the lawyer shall be verified amount representing the lodestar less 5 per- and expressly state whether a hearing is desired. The lawyer may in the interest of explaining his conduct or by way of mitigating the dis- cent. Thereafter, Hess filed a motion to recon- cipline to be imposed upon him, submit a brief and/or any evidence sider relying on a Missouri Supreme Court tending to mitigate the severity of discipline. The General Counsel may respond by submission of a brief and/or any evidence supporting decision in a class action against Volkswagen his recommendation of discipline. involving claims of defective window regula- 4. State ex rel. Oklahoma Bar Ass’n v. Morgan, 2009 OK 23, 213 P.3d 559. 5. Rule 11.1 (e), RGDP, provides: tors. The Missouri Court determined that the (e) The applicant shall not be permitted to file an application for rein- appropriate lodestar was $3,070,320.00 and statement, after disbarment or resignation pending investigation or disciplinary proceedings, within five (5) years of the effective date of that the trial court did not abuse its discretion the order of the Court disbarring the applicant or accepting the resig- when it applied a multiplier of 2.0 to the lode- nation, nor shall any applicant be permitted to file an application for star, imposing a final fee of $6,174.640. Relying reinstatement within one (1) year after the Supreme Court has denied an earlier application. on the Missouri decision, the trial court adopt- 6. Rule 9.1, RGDP, provides: ed its original lodestar and amended its order When the action of the Supreme Court becomes final, a lawyer who is disbarred or suspended, or who has resigned membership pending to reflect a multiplier of 1.9 for an adjusted disciplinary proceedings, must notify all of the lawyer’s clients having award of $7,221.438.30. We hold that the trial legal business then pending within twenty (20) days, by certified mail, of the lawyer’s inability to represent them and the necessity for court abused its discretion: by including hours promptly retaining new counsel. If such lawyer is a member of, or in failed, out-of-state litigation in the lodestar associated with, a law firm or professional corporation, such notice calculation; when it utilized, unchanged, the shall be given to all clients of the firm or professional corporation, which have legal business then pending with respect to which the same analysis to sustain the award of over $7 disbarred, suspended or resigned lawyer had substantial responsibili- million in attorney fees that it applied in sup- ty. The lawyer shall also file a formal withdrawal as counsel in all cases pending in any tribunal. The lawyer must file, within twenty (20) days, port of a $3.6 million award; by placing undue an affidavit with the Commission and with the Clerk of the Supreme reliance on non-binding, persuasive only, out- Court stating that the lawyer has complied with the provisions of this Rule, together with a list of the clients so notified and a list of all other of-state jurisprudence in awarding $7 million State and Federal courts and administrative agencies before which the in attorney fees where the class recovery was lawyer is admitted to practice. Proof of substantial compliance by the less than $50,000.00.

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 23 REVERSED AND REMANDED. RELEVANT FACTS AND PROCEDURAL HISTORY John H. Tucker, Colin H. Tucker, Kerry R. Lewis, Rhodes Hieronymus Jones & Tucker, ¶3 In 2005, Hess filed a class action suit Tulsa, Oklahoma, for Defendant/Appellant, against Volkswagen for breach of express and implied warranties relating to an improperly Daniel V. Gsovski, Herzfel & Rubin, PC, New designed front spoiler. The claimants argued York, New York, that there were design defects which caused Terry W. West, Bradley C. West, The West Law the Jetta’s4 front spoiler cover to catch on curbs Firm, Shawnee, Oklahoma, for Plaintiffs/ or wheel-stops resulting in damage to the front Appellees, spoiler. Certification of the class was upheld by the Court of Civil Appeals in 2009.5 Plaintiffs in T. Christopher Tuck (pro hac vice), A Hoyt Row- Ohio filed a similar action in 2004. Volkswagen ell, III (pro hac vice), Richardson, Patrick, West- successfully decertified a Florida cause in July brook & Brickman, LLC, Mt. Pleasant, South of 2005.6 Carolina ¶4 The parties entered a settlement agree- Dennis E. Murray Sr. (pro hac vice), Donna ment in December of 2011. Ohio residents filed Evans (pro hac vice), Murray & Murray, San- an application to intervene on July 31, 2012. dusky, Ohio, The Amended Order of Final Judgment Grant- John Bauta (pro hac vice), The Ferraro Law Firm, ing Final Approval of Settlement and Certifica- Miami, Florida tion of Class was entered in November of the same year. Clyde A. Muchmore, Melanie Wilson Rughani, Crowe & Dunlevy, Oklahoma City, Oklahoma, ¶5 In conformance with the settlement, Volk- for amicus curiae, State Chamber of Oklahoma. swagen notified in excess of two million owners and lessees of class vehicles nationwide. WATT, J.: The parties agree that the average pay-out to ¶1 To dispose of the appeal, we must deter- each successful applicant for repair costs con- mine a single issue:1 whether granting attorney stituted a full recovery. No Oklahoma citizens fees exceeding $7 million in a multi-jurisdic- received any settlement pay-out. Claims from tional, class action law suit constitutes an other states totaled 310 for a distribution by abuse of discretion where $45,780 was award- Volkswagen of $45,780 or approximately ed to the class as a whole. Here, the trial court $140.00 per claimant.7 originally determined the appropriate attorney ¶6 As a part of the settlement, Volkswagen fees to be $3,610,719.15 based on State ex rel. agreed to pay the claimants’ reasonable attor- Burk v. City of Oklahoma City, 1979 OK 115, ney fees and costs.8 Hess filed its Brief in Sup- 598 P.2d 659 and the directives of 12 O.S. Supp. 2 port of an Award of Attorneys’ Fees, Expenses 2009 §2023. Hess filed a motion to reconsider and Class Representative Incentive Awards on based on the fees awarded in Berry v. Volkswa- October 2, 2012 seeking a combined fee and gen Group of America, 397 S.W.3d 425 (Mo. expense request of $15,000,000.00.9 On April 10, 2013), a Missouri Supreme Court case involv- 2013, the trial court entered an order granting ing a class action against Volkswagen related to Hess attorney fees of $3,610,719.15 and expens- defective window regulator claims. The trial es of $146,133.06. The attorney fee award adopt- court considered the Missouri case; and, included a downward adjustment10 of 5% to ing the identical analysis utilized in reaching accommodate for fees incurred in the failed a determination that the appropriate fee Florida litigation. In support of the award, the award was approximately $3.6 million, the trial court provided detailed analysis of the trial court amended its order to reflect a mul- legislatively enacted factors found in 12 O.S. tiplier of 1.9 for an adjusted award of Supp. 2013 §2023. $7,221.438.30.3 ¶7 The day before the order awarding attor- ¶2 In calculating the lodestar, the trial court ney fees issued, the Missouri Supreme Court included hours in failed, out-of-state litigation decided Berry v. Volkswagen Group of Ameri- concerning similar issues to those presented ca, 397 S.W.3d 425 (Mo. 2013). In Berry, the Mis- here. Based on these facts, we hold that the $7 souri court determined that no abuse of discre- million attorneys’ fee award constituted an tion occurred by the trial court’s application of abuse of discretion. a 2.0 multiplier to the lodestar. Relying on the

24 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 Missouri case, Hess filed a Motion for Recon- ¶12 Hess originally sought $15 million in sideration of the Order Granting an Award of attorney fees. Here, the claimants assert that Fees and Expenses on April 19, 2013. the trial court did not abuse its discretion in granting the motion for reconsideration and ¶8 The trial court considered Berry and, ulti- applying an incentive fee of 1.9 to its originally mately, applied a multiplier of 1.9 to its earlier calculated lodestar, which included fees from determined lodestar of $3,800,757.00 resulting the Florida failed certification proceeding. It in an adjusted fee award of $7,367,571.36. Volk- argues no error resulted from the trial court’s swagen appealed, filing a timely Petition In reliance on a single out-of-state opinion in Error on July 12, 2013. On February 25, 2014, making its incentive decision, noting that Okla- the claimants’ motion to retain was granted. homa law compels consideration of awards in The State Chamber filed an amicus brief April similar causes. 1st. After defects in the record were corrected, we received the same from the trial court on ¶13 Volkswagen argues that including the June 20, 2014. hours attributable to the failed Florida litigation in determining the lodestar was inappro- STANDARD OF REVIEW priate and that application of an incentive fee ¶9 The reasonableness of attorney fees of 1.9 to the calculated fee was unwarranted. depends on the facts and circumstances of each The claimants contend that the Missouri case individual case and is a question for the trier of upon which the court relied is contrary to fact.11 The standard of review for considering the Oklahoma law and distinguishable. We agree trial court’s award of an attorney fee is abuse of with Volkswagen’s assertions. discretion.12 Reversal for an abuse of discretion ¶14 a. Including attorney fees incurred occurs where the lower court ruling is without in the failed Florida litigation in computing rational basis in the evidence or where it is based the fee award was a clear abuse of discretion. upon erroneous legal conclusions.13 ¶15 Juan B. Bauta represented Florida class ¶10 Appropriate steps to determine attorney members in Volkswagen of America, Inc. v. fees begin with perusal of detailed time records Sugarman, 909 So.2d 923 (Fla.App. 2005) for to determine a lodestar fee arrived at by multi- relief identical to that sought in the instant plying the attorney’s hourly rate by the time cause. The Florida claimants alleged that, as a expended. Next, in class action suits, the fee result of a design defect, the class suffered may be enhanced by application of certain fac- repeated damage to the front spoiler assembly tors to be considered in arriving at a fair and of their Volkswagen Jettas. reasonable fee for class counsel. The considerations are delineated by the Legislature in 12 ¶16 The trial court certified the class. The O.S. Supp. 2013 §2023 and include: time and Florida Appellate Court determined that the labor required; novelty and difficulty of the trial court abused its discretion in reaching the questions; skill required to perform the legal certification ruling. It reasoned that the ele- services; preclusion of other employment; cus- ment of causation would require an individual tomary fee; whether the fee is fixed or contin- inquiry into each plaintiff’s claim. Therefore, gent; time limitations; amount involved and the cause was reversed and remanded for results obtained; experience, reputation, and decertification. Rehearing was denied. abilities of attorneys involved; undesirability ¶17 Volkswagon asserts that Juan B. Bauta of the case; nature and length of the profes- (Bauta) billed some 803.13 hours in the failed sional relationship with the client; awards in Florida litigation. It asserts that including these similar causes; risk of recovery; and whether hours in the raw lodestar total in the instant any benefits of the recovery take a non-cash cause constituted an abuse of discretion. Hess form.14 In all cases, the attorney fees must bear argues that inclusion of the hours was appro- some reasonable relationship to the amount priate as Bauta’s experience in Florida contrib- in controversy.15 uted to the successful settlement of the instant ¶11 UNDER THE FACTS PRESENTED, cause and allowed Florida residents to be THE TRIAL COURT ABUSED ITS DISCRE- included within the settlement class for pay- TION IN COMPUTING THE LODESTAR ment of damages. We disagree with the claim- AND IN APPLYING A MULTIPLIER OF 1.9 ant’s arguments. TO THE SAME.

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 25 ¶18 Here, this Court had no opportunity to Court to conceive how Bauta’s experience in review the certification decision. Volkswagen Florida was of assistance to Hess here, especially failed to timely file its certiorari petition, requir- where the attorney was unsuccessful at the cer- ing this Court to dismiss the cause on Septem- tification stage in Florida. Therefore, we hold ber 21, 2009. Therefore, the Court of Civil that the inclusion of Bauta’s legal fees attribut- Appeals ruling on certification is the law of the able solely to the Florida litigation in the lode- case. star calculation was an abuse of discretion. ¶19 In Hess v. Volkswagen of America, Inc. ¶23 b. The trial court abused its discretion [Hess I], 2009 OK CIV APP 84, 221 P.3d 132, the by applying a 1.9 incentive to the lodestar Court of Civil Appeals stated: fee based on the identical analysis utilized to support an award of less than half such VW relies on a Florida case, Volkswagen of an award. America, Inc. v. Sugarman, 909 So.2d 923 (Fla.Ct.App. 2005), which, like the instant ¶24 The trial court originally awarded case, concerns a class composed of Jetta $3,610,719.15 in attorneys’ fees. In so doing, the owners whose front bumper assemblies court found “that the results obtained by Class had been damaged as a result of contact Counsel do not mandate an increase in the fee with a wheel stop or curb. The Florida award.” It determined further that “a slight appellate court noted that, under Florida reduction in the lodestar is warranted based on law, the “predominance requirement is not the inclusion of attorney fees from the Sugar- satisfied when the claims involve factual man litigation.” Taking in consideration the determinations which are unique to each monetary outcome of the case and balancing plaintiff.” Id. at 924. It reversed class certi- that with the fees awarded, the trial court fication because “the key element of causa- determined that “a 5% reduction in the lode- tion mandates individual inquiry into each star is justified.”16 plaintiff’s claim,” including such factors as ¶25 On reconsideration, the trial court vehicle condition, type of damage, and adopted, straight out of its prior order and actions of the driver. without change, its analysis based on Burk v. The Sugarman holding is clearly inconsis- City of Oklahoma City, 1979 OK 115, 598 P.2d tent with Oklahoma law. [Italics in origi- 659 and 12 O.S. Supp. 2009 §2013(G)(4)(e) that nal. Bold supplied. Footnotes omitted.] it had originally utilized to determine that the reasonable attorneys’ fee would be $3.6 mil- ¶20 Most certainly, in arguments before the lion.17 It then looked to Berry v. Volkswagen Court of Civil Appeals, Hess opposed applica- Group of Oklahoma, Inc., 397 S.W.3d 425 (Mo tion of Sugarman to the certification decision. 2013). Such opposition leads to the conclusion that Hess asserted either that Florida law was sub- ¶26 The trial court noted that: the facts of stantially different from that of Oklahoma’s for Berry and those here were similar; the instant certification purposes or that Bauta’s represen- litigation seemed to be the more intense of the tation may have been inadequate. Neverthe- two; although Missouri law was fundamental- less, whether either, both, or none of these ly different from Oklahoma, it appeared that deductions are correct, arguments that Mr. the Missouri standards were the more restric- Bauta’s experience in the failed Florida litiga- tive; the uncertainty of recovery here would tion was beneficial to the conclusion of the have convinced most attorneys to abandon the instant cause is unconvincing. litigation; the Florida litigation was necessary to the successful prosecution of this case; and ¶21 There was no issue of settlement ad- noted the possible chilling effect its original dressed in Sugarman and the Court of Appeals ruling might have on future litigants facing concluded that the Florida law on certification complex class action cases. On consideration of did not comport with Oklahoma’s on the same these factors, the trial court readopted its origi- subject. Furthermore, Hess provides no cita- nal lodestar of $3,800,757.00, an amount not tion of authority for the proposition that fees representing the 5% reduction in consideration incurred in a cause independent of another of the Sugarman case. It then applied a multi- may be collected in related litigation. plier of 1.9 for an adjusted fee of $7,221,438.30. ¶22 Under the facts presented and without ¶27 Before discussing Berry, we note our supporting jurisprudence , it is difficult for this determination, supra, that inclusion of attor-

26 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 ney fees in the lodestar calculation for Bauta’s sion or reimbursement program as it related to time associated with the failed Sugarman liti- engine defects in certain Volkswagen and Audi gation was unwarranted and an abuse of dis- vehicles. As is the case here, protracted litiga- cretion. Furthermore, we disagree with the tion resulted in a settlement agreement provid- trial court’s conclusion that Missouri’s stan- ing that Volkswagen would pay “reasonable dards for the award of attorneys’ fees in class attorneys’ fees and expenses.” action litigation are more restrictive than Oklahoma’s. While Missouri courts need only ¶32 The claimants’ attorneys in Audi argued consider eight factors in making an enhance- that they should receive $37.5 million in attor- ment decision,18 the Oklahoma trial bench neys’ fees from what they anticipated would be must consider the thirteen factors outlined in a $414 million recovery. A special master recommended an award of $30 million. Applying 12 O.S. Supp. 2013 §2023.19 a lodestar calculation, the district court calcu- ¶28 Berry brought a class action against lated fees at $500.00 per hour to produce a base Volkswagen related to defective window regu- lodestar value of $7,734,000. It applied a multi- lators installed in some of its vehicles. On plier of 2.5, resulting in a fee of $19,335,000. It appeal from the trial court’s award of attorney utilized these figures to support a $30 million fees, the Missouri court determined that the fee award. trial court did not abuse its discretion in determining the lodestar amount of $3,087,320 or in ¶33 On appeal, the appellate court first applying a multiplier of 2.0 for a total award of determined that state rather than federal law $6,174.650 in attorneys’ fees. In concluding was applicable to attorney fee calculations. The that the trial court did not abuse its discre- cause was remanded for application of Massa- tion, the court in Berry focused on three fac- chusetts law. As to the enhancement figure, the tors considered by the trial court: any award Court of Appeals for the First Circuit noted: to class counsel was contingent; taking the [A] question remaining on remand is the case precluded class counsel from accepting question of the appropriate contingency other employment; and the time required for enhancement, if any. The district court’s trial delayed work on class counsel’s other choice of a multiplier figure was not work. The Berry court stated: based on Massachusetts law nor justified by the record, and it is therefore vacated… These findings support a finding that a the actual claims multiplier was necessary to ensure a mar- As to the last question, data collected by the settlement adminis- ket fee that compensated class counsel for trator is relevant to the enhancement taking this case in lieu of working less risky question and in determining the appro- cases on an hourly basis. priate fee. [Emphasis provided.] ¶29 Like the fees in Berry, fees here were contingent in nature. Nevertheless, the trial court Although the settlement value in Audi was noted that there was “no evidence of any lost estimated to be $414 million, Volkswagen con- tended that the actual number would be in the opportunity by any Class Counsel” to take on 21 other clients or cases. Rather, it appears that $50 million range. there is evidence that counsel had every oppor- ¶34 A nationwide class of 2,103,229 owners tunity to participate in other litigation and was certified here. At certification, Volkswagen nationwide class actions.20 This indicates that at admitted having received complaints from 663 least two of the factors relied upon in Berry to persons involving the Jetta front spoilers being support the 2.0 multiplier are absent here. damaged from contact with a parking block or ¶30 Perhaps more instructive here than Berry wheel stop. If all of the class had been awarded is In re Volkswagen & Audi Warranty Exten- the $140 in damages provided to claimants, the sion Litigation, 692 F.3d 4 (1st Cir. 2012). total settlement amount would have ap- Although Audi concerned the primary issue of proached $295 million. History has shown that only 310 valid claims have been filed and whether federal or state law would govern the there has been a pay-out for damages for the settlement of a class action, its analysis of the minimal amount of $45,780 application of a multiplier provides guidance . No payments here. went to Oklahoma residents. ¶31 Audi involved a class action alleging ¶35 This Court has long recognized the improprieties in Volkswagen’s warranty exten- importance of the relationship between the

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 27 amount sued for in a case seeking only money enhancement to the lodestar constituted an damages and the results obtained.22 As defined abuse of discretion. by Hess, the “class” included in excess of two ¶40 The cause is reversed and remanded. million Jetta owners. Although in excess of 300 The attorney fees, as herein modified, are to be members have received full recovery for dam- assessed against Volkswagen and awarded to age repairs and the warranty period has been Hess in a manner consistent with this opinion expanded by twelve months through the settle- and as ordered by the trial court. ment, if the pay-out is spread across the entirety of the defined class, recovery is minuscule. REVERSED AND REMANDED. ¶36 When we consider the award to the class, COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, as did the federal court in Audi, we have little WINCHESTER, EDMONDSON, TAYLOR (by difficulty in concluding that application of a 1.9 separate writing), GURICH, JJ. - CONCUR enhancement figure to the lodestar amount COMBS, J. - DISQUALIFIED constituted an abuse of discretion. Neverthe- less, we are loath to go so far as did the federal TAYLOR, J., concurring (joined by Winches- court and to instruct the district court that the ter, J.): record will not support application of a per- ¶1 I concur in today’s opinion finding that centage amount to the lodestar figure. Our the trial court abused its discretion, vacating hesitancy lies in the fact that we are aware that the attorney-fee award, and requiring the trial the trial court is cognizant that multipliers may court to start anew in determining the reason- adjust a lodestar upwards or may diminish the able amount of attorney fees, but write sepa- award.23 rately to provide guidance in determining rea- CONCLUSION sonable attorney fees on remand. In reviewing the attorney-fee award, it is important to ¶37 The decision to file a nationwide class understand what this case is about and what it action can be the cause of massive amounts of is not about. It is about a $140.00 replacement, work. The class counsel, being the masters of including parts and labor, of a piece of decora- their complaints and all attorneys and their tive plastic on a Volkswagen Jetta. It is not clients being servants to them, must consider about attorneys acting as private attorneys the decision to file in that light.24 Nevertheless, generally protecting the social good; it is about the use of class-action procedures for litigation attorneys acting with a business plan.1 It is not of individual claims may offer substantial about righting a constitutional wrong, it is not advantages for named plaintiffs. It may moti- about protecting Jetta owners from bodily vate them to bring cases that, for economic injury or death, and it is not about protecting reasons, might not be brought otherwise.25 the public policy of this state. It is about 310 pieces of decorative plastic. ¶38 Trial judges have wide discretion in making reductions based on estimates of time ¶2 Rule 1.5(a) of the Oklahoma Rules of Pro- spent on activities that are non-compensable in fessional Conduct (ORPC), 5 O.S.2011, ch. 1, whole or in part.26 Here, the trial court abused app. 3-A, requires attorneys to charge a reason- its discretion in not deducting the entirety of able fee. Rule 1.5(a) is the basis for the require- the fees claimed in the failed Florida litigation ment that all fees, even those awarded in a when calculating the lodestar. class action, be reasonable. The considerations for determining reasonable attorney fees were ¶39 There is a strong presumption that the set out in Rule 1.5(a) well before State ex rel. lodestar method, alone, will reflect a reason- Burk v. City of Oklahoma City, 1979 OK 115, 598 able attorney fee.27 On reconsideration, the trial P.2d 659, see 5 O.S.1961, ch. 1, app. 3, § 12, and court applied a 1.9 increase of attorney fees are substantially identical to those in Title 12, based largely on the Missouri Supreme Court Section 2023(G) of the Oklahoma Statutes with case, Berry, supra, a non-binding pronounce- the exception that Section 2023(G) also includes ment on Missouri law, and factors not existing as considerations whether the case is undesir- in the instant cause. No rational basis for the able, awards in similar causes, and the risk of trial court’s adjustment of the attorney fees recovery in the litigation.2 Rule 1.5(a)’s consid- based on the same factors which it determined erations for determining whether a requested did not warrant enhancement in its original or collected fee is reasonable apply equally to order exists. Therefore, application of a 1.9 fixed fees and contingency fees. In re Adoption

28 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 of Baby Boy A, 2010 OK 39, 236 P.3d 116; Oliver’s and only 310 were able to secure any recovery.5 Sports Ctr., Inc. v. Nat’l Standard Ins. Co., 1980 In fact, the plaintiffs’ attorneys expressly OK 120, 615 P.2d 291. acknowledged that a majority of the 2.1 million class members suffered no injury from the ¶3 There are two primary methods of calcu- alleged defect and would not be entitled to any lating attorney fees in class actions: the lode- recovery. star method and the contingency fee method.3 The contingency fee method assures that the ¶6 This case was brought on a contingency fee has a reasonable relationship to the recov- fee basis, meaning that the attorneys would ery. Even though this Court adopted the lode- have recovered at most $25,000.00 in fees from star method in Burk, 1979 OK 115 at ¶ 10, 598 their clients. The trial court took into account P.2d at 661, the contingency fee method is that “much of the litigation occurred follow[ing] incorporated into any calculation of attorney the reversal of certification” in the Florida case. fees because the amount in controversy and the Contingency fees are generally based on the results obtained must be considered in deter- final recovery in a case. Here, the trial court mining reasonable attorney fees. 12 O.S.Supp. should give no consideration to resources 2013, § 2023(G)(8). In fact, the relationship of expended in a failed certification attempt in the attorney fees to the recovery is “the most Florida. critical factor” in determining reasonable attorney fees. Tibbetts v. Sight ‘n Sound Appliance ¶7 In considering the nature and length of Ctrs., Inc., 2003 OK 72, ¶ 13, 77 P.3d 1042, 1049. the professional relationship between the attor- Attorney fees that are out of proportion with or neys and the clients, the trial court mistakenly have no relation to the recovery may be indica- considered the length of this litigation, includ- tive of a case being overworked, of fee churn- ing the litigation in Florida which did not ing, and of unnecessarily protracted litigation.4 involve most of the attorneys in this case. Rather, the trial court should have considered ¶4 In addition to failing to give proper the length and nature of the relationship before weight to the most important consideration the litigation began. The situation here is not (the relationship between the attorney fees and like that of an attorney on retainer, employed the recovery), the trial court also misconstrued by a business, or who represents a client in all the nature of the claims and erred in its appli- legal matters. There is no evidence that the cation of a number of the considerations in attorneys here had a relationship with any of determining the reasonable attorney fees. For the class representatives before the litigation example, the district court’s finding that the began. litigation was “arduous and complicated” and that the attorneys showed a particular level of ¶8 The trial court considered several factors “expertise and courage” is unfounded and an improperly in rationalizing that the attorney- abuse of discretion. When one thinks of cour- fee award is reasonable, such as recovery of age, Clarence Darrow and the fictional Atticus future claims. The class recovery at the relevant Finch come to mind. It is hard to imagine pro- time, i.e., when the attorney fees were award- moting the cause of decorative plastic spoilers ed, was at most $47,040.00. In trying to justify on a Volkswagen Jetta as courageous. “Cour- the attorney fees, the trial court improperly age” and decorative plastic parts which cause considered future claims. Still, the trial court’s no danger to any person are concepts that do most egregious error by far was failing to give not go together. This case involves two juris- proper consideration to the relationship of the dictions, Oklahoma and Ohio, as the Florida attorney fees to the recovery. case was dismissed, not numerous jurisdic- ¶9 The attorneys’ requested fees of over tions making coordination unduly complex. $14,000,000.00 is 317 times the recovery. The The fact that the case was not certified in Flor- trial court’s attorney-fee award of $7,221,438.30 ida does not make this a complex case or an is 154 times the recovery. The initial trial court unpopular cause which would make it difficult award of $3,610,719.15 in attorney fees is 77 to obtain counsel or require courage to litigate. times the recovery. Lastly, if the trial court on ¶5 This is a very simple case which does not remand omits only the fees charged in the involve death, traffic safety, or bodily harm. Florida litigation and caps attorney fees at This case involves a cosmetic defect so insig- $650.00 an hour, the attorney-fee award will nificant that the vast majority of the 2.1 million still be 64 times the claimants’ recovery. Such a class members did not bother to file a claim, disproportional benefit to the lawyers relative to

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 29 the claimants’ recovery is repugnant to the pur- approximately 7,600, the average rate per hour billed equals $500 per hour. In addition, ¶¶31 through 35 of the trial court’s Order, filed on poses of our judicial system and to the purposes April 10, 2013, make it clear that rates of $650 to $700 were utilized in of class actions and erodes confidence in the calculation of the lodestar. 2. Title 12 O.S. Supp. 2013 §2023 providing in pertinent part: courts. See Pearson v. NBTY, Inc., ___ F.3d ___, “. . . G. ATTORNEY FEES AND NONTAXABLE COSTS. 1. In a 2014 WL 6466128 *3 (7th Cir. 2014) (calling “out- certified class action, the court may award reasonable attorney fees and nontaxable costs that are authorized by law or by the landish” attorney fees amounting to sixty-nine parties agreement. . . . percent of the aggregate value of the settlement). 4. In considering a motion for attorney fees filed after the effective date of this act: ¶10 Justice O’Connor warned against anoth- a. the court shall conduct an evidentiary hearing to determine a fair and reasonable fee for class counsel . . . er “troubling [consequence]” of approving fee e. in arriving at a fair and reasonable fee for class counsel, the agreements without inquiring into any rational court shall consider the following factors: relationship between the fee and the recovery. (1) time and labor required, (2) the novelty and difficulty of the questions presented by the Int’l Precious Metals Corp. v. Waters, 530 U.S. litigation, 1223, 1223 (2000) (O’Connor, J., statement (3) the skill required to perform the legal service properly, (4) the preclusion of other employment by the attorney due to respecting the denial of the petition for a writ acceptance of the case, of certiorari). Such fee agreements would (5) the customary fee, (6) whether the fee is fixed or contingent, “encourage the filing of needless lawsuits (7) time limitations imposed by the client or the circumstances, where, because the value of each class mem- (8) the amount in controversy and the results obtained, (9) the experience, reputation and ability of the attorney, ber’s individual claim is small compared to the (10) whether or not the case is an undesirable case, transaction costs in obtaining recovery, the (11) the nature and length of the professional relationship with actual distribution to the class will inevitably the client, (12) awards in similar cases, be minimal.” Id. Justice O’Connor’s concerns (13) the risk of recovery in the litigation, and are relevant when class attorneys are awarded f. if any portion of the benefits recovered for the class in an action maintained pursuant to paragraph 3 of subsection B of this sec- fees based on a settlement agreement. The tion are in the form of coupons, discounts on future goods or claimed transaction costs for this simple litiga- services or other similar types of noncash common benefits, the attorney fees awarded in the class action shall be in cash and tion are curiously high — eight attorneys and noncash amunts in the same proportion as the recovery for the two paralegals from four firms in four different class.” states racked up over 7,100 hours to secure a A prior version of the statute was in effect when the settlement agreement was signed. Nevertheless, the quoted portion of §2023 remains $140.00 recovery for about 310 class members. virtually the same in the revised version which became effective on The trial court’s attorney-fee award reflected a September 1, 2013. 3. Trial court’s order, filed June 14, 2013, providing in pertinent preposterous number of attorney and parale- part: gal hours given the minimal and paltry recov- “. . . 1. In determining whether to reconsider and amend the Court’s previous ruling regarding the award of fees and costs to ery. On remand, the trial court must act with a the Plaintiff, the Court must first conduct an analysis of whether wise and courageous sword to sever the unrea- or not the 13 factors contained in the Oklahoma statutory scheme (12 O.S. §2023(G)(4)(e)) for determining the amount to award in sonable attorney fees and bring them in line a particular class action case are consistent with due process. The with the recovery by about 310 class members Court adopts its previous findings in paragraphs 24-51 of its of at most $47,040.00 in benefits. Order of April 10, 2013 as to the litigation process and the application of the 13 statutory factors to that effort. . . . [Empha- WATT, J.: sis supplied.] 4. Originally, the class was intended to include model years 1994- 2003. However, the certified class included “owners in the United 1. Volkswagen argues that both the initial and the enhanced fee States who purchased or leased a 1999-2003 Jetta.” Miller v. Volkswa- awards violate due process. Our determination that the trial court gen of America, 889 F.Supp.2d 980 (N.D.Ohio 2012). abused its discretion both in including attorney fees in the failed Flor- 5. A more detailed account of the underlying certification process ida litigation in calculating the lodestar and in enhancing its award on can be found in Hess v. Volkswagen of America, Inc., 2009 OK CIV APP reconsideration by a factor of 1.9 negate the need to address the due 84, 221 P.3d 132. Although Volkswagen sought certiorari of the certifi- process challenge, as attorney fees must be recalculated on remand. cation decision, it was dismissed as untimely on September 21, 2009. For the same reason, it is premature to consider issues raised concern- 6. This is the failed Sugarman litigation for which Mr. Bauta seeks ing the amount of the fee to be awarded and the manner in which it reimbursement for attorney fees and costs in the instant cause. See, should be calculated as articulated in the Brief of Amicus Curiae, The Volkswagen of America, Inc. v. Sugarman, 909 So.2d 923 (Fla.App. State Chamber of Oklahoma, filed on April 1, 2014. Arguments that 2005). Nevertheless, the Florida claimants are a part of the negotiated Professor Charles Silver’s testimony should have been excluded nationwide settlement here. because of admissions that he was unaware of Oklahoma law as it 7. The settlement also extended the warranty period for repairs for related to the award of attorney fees appears unwarranted. Although an additional year. Volkswagen argues that Silver’s testimony was key in the trial court’s 8. The Settlement Agreement (Amended), filed on June 29, 2012 determination of the hourly rates to approve and for approval of the providing in pertinent part at ¶¶17 and 21: lodestar, it appears that assertions that fees as high as $800 per hour “COSTS AND ATTORNEY FEES were included in calculation of the lodestar are unfounded. Volkswa- 17. Plaintiff’s Counsel and VWGoA shall confer on a reasonable gen’s own witness testified that rates of $650 per hour were reasonable. attorneys’ fee and expense reimbursement to determine if the [Where testimony is cumulative to other admissible evidence admis- parties can reach agreement. Plaintiff’s Counsel shall then apply sion is harmless error. See, Cuesta-Rodriguez v. State of Oklahoma, to the Court, on or before forty-five days prior to the final fair- 2010 OK CR 23, ¶40, 241 P.3d 214, reh’g denied, 247 P.3d 1192 (2011), cert. ness hearing, for an award of reasonable attorneys’ fees and denied, ___ U.S. ___, 132 S.Ct. 259, 181 L.Ed.2nd 151 (2011); Simpson v. expenses for all professional services rendered and to be ren- State of Oklahoma, 2010 OK CR 6, ¶23, 230 P.3d 888, cert. denied, ___ dered in connection with the prosecution of this action and the U.S. ___, 131 S.Ct. 1009, 178 L.Ed.2d 838 (2011).] When the original consummation of this Settlement in an amount which shall be lodestar figure of $3.8 million is divided by the number of hours billed, determined by the Court under applicable law, separate and

30 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 apart from any payments or benefits provided to any member of TAYLOR, J., concurring (joined by Winches- the Settlement Class or the Settlement Class as a whole pursuant to the terms of this Settlement Agreement. The district court shall ter, J.): set the award of attorneys’ fee and expenses in the absence of any agreement by the parties, subject to any and all rights of appeal 1. It would be interesting to know how these class representatives by an aggrieved party or objecting class member, which are came to be plaintiffs since no Oklahoma plaintiffs benefitted from the expressly reserved. The amount of Plaintiffs’ application, and the recovery. Did they seek out counsel? material terms of any agreement by the defense not to oppose 2. Title 12, Section 2023(G) of the Oklahoma Statutes is quoted at such application, if applicable, shall be disclosed in the Summary footnote 2 of this Court’s opinion and does not need to be restated and Full Notices of Settlement . . . here. 21. This Settlement Agreement, and all terms and provisions 3. In the lodestar method of calculating fees, the court multiplies thereof, shall be construed under and governed exclusively by the reasonable number of hours worked times a reasonable hourly the laws of the State of Oklahoma, including but not limited to rate. The court may then use an up or down multiplier based on Burk 12 Okla. Stat. §2023, without application of any choice of law criteria to determine reasonable attorney fees. In the contingency fee principles. . . .” method, the attorney-fee award is based on a percentage of the plain- 9. Mr. Juan Bauta sought lodestar fees of 1,361.18 hours at a rate of tiffs’ recovery. $650.00 per hour for a total of $884,767.00. Declaration of Juan Bauta in 4. Rule 3.2 of the ORPC provides: “A lawyer shall make reasonable Support of Plaintiffs’ Motion for an Award of Attorneys’ Fees, Expens- efforts to expedite litigation consistent with the interests of the client.” es and Class Representative Incentive Awards, p.2. Volkswagen alleges 5. This does not include nine pending claims with the potential that some 784.75 hours were billed to the class action attributable to the recovery of $1,260.00. failed Sugarman litigation in Florida for a total lodestar amount of $510,087.50. 2014 OK 112 10. Arkoma Gas Co. v. Otis Engineering Corp., 1993 OK 27, ¶6, 849 P.2d 392. 11. Id. at ¶8. CHRISTOPHER L. TUCKER, Plaintiff/ 12. Matter of Adoption of Baby Boy A, 2010 OK 39, ¶19, 236 P.2d Appellant, v. THE COCHRAN FIRM- 116; Tibbets v. Sight ‘N Sound Appliance Ctrs., 2003 OK 72, ¶3, 77 P.3d CRIMINAL DEFENSE BIRMINGHAM 1042; Burk v. Oklahoma City, 1979 OK 115, ¶19, 598 P.2d 659. 13. Thomas v. E-Z Mart Stores, Inc., 2004 OK 82, ¶7, 102 P.3d 133. L.L.C., a foreign limited liability company, 14. Title 12 O.S. Supp. 2013 §2023, see note 2, supra. The first twelve Defendant/Appellee. of the.se factors are the traditional factors set out in Burk v. City of Oklahoma City, see note 12, supra. 15. Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, ¶13, 171 P.3d No. 111,181. December 16, 2014 890; Arkoma Gas Co. v. Otis Engineering Corp., see note 10, supra.. 16. Trial court’s Order, filed April 10, 2013, providing in pertinent CERTIORARI TO THE OKLAHOMA part at ¶52. COURT OF CIVIL APPEALS, 17. Trial court’s Order on Reconsideration of Fees and Expenses, filed June 14, 2013, see note 3, supra. DIVISION NO. IV 18. Berry v. Volkswagen Group of America, Inc., 397 S.W.3d 425 (Mo. 2013), providing in pertinent part at p. 431: ¶0 A client brought an action in the District “. . . [T]here are factors that may be considered to determine the Court of Oklahoma County against the law amount of attorneys’ fees to award. . . . One consideration in determining the amount of attorneys’ fees is the result achieved. firm which he had hired to represent him . . . Other relevant factors in determining the reasonable value in a criminal case. The Honorable Lisa and amount of statutorily authorized fees include: 1) the rates customarily charged by the attorneys in the community for simi- Davis, District Judge, granted the law lar services; 2) the number of hours reasonably expended on the firm’s amended motion to dismiss because litigation; 3) the nature and character of the services rendered; 4) of a forum-selection clause in the parties’ the degree of professional ability required; 5) the nature and importance of the subject matter; 6) the amount involved or the agreement which provided that venue result obtained; and 7) the vigor of opposition. . . .” shall be in Los Angeles, California. Client 19. Title 12 O.S. Supp. 2013 §2023, see note 2, supra. 20. Trial court’s Order, filed April 10th, providing in pertinent part appealed and the Court of Civil Appeals at ¶38. concluded that the forum-selection clause 21. No decision on attorney fees has been issued by the Massachu- setts court. On Oct. 10, 2012, the United States District Court of Mas- should not be enforced, reversed the trial sachusetts held that reassignment of the case to another district judge court’s order dismissing his claims, and was required to hear the attorneys’ fees issue. In re Volkswagen & Audi remanded the matter for further proceed- Warranty Extension Litigation, 898 F.Supp.2d 346 (D.Mass. 2012). 22. Tibbets v. Sight ‘N Sound Appliance Ctrs., 2003 OK 72, ¶11, 77 ings in the District Court. The law firm P.3d 1.042; Southwestern Bell Telephone Co. v. Parker Pest Control, filed a petition for certiorari in this Court 1987 OK 16, ¶13, 737 P.2d 1186. See also, Arkoma Gas Co. v. Otis Engi- neering Corp., see note 10,supra. for our review of the opinion by the Court 23. The trial court’s Order, filed on April 10, 2013, providing in of Civil Appeals. We hold: (1) When a par- pertinent part at ¶52: “A lodestar adjustment based on results obtained, can be down- ties’ agreement has an interstate forum- ward as well as upward, and substantial in amount. Arkoma Gas selection clause and a party seeks its judi- Co. v. Otis Eng’g Corp., 1993 OK 27, 849 P.2d 92.” [Italics in original.] cial enforcement in an Oklahoma District 24. Dewey v. Volkswagen of America, 728 F.Supp.2d 546 (D.N.J. Court by seeking dismissal of the Oklaho- 2010) [Overruled on other grounds.]. ma proceeding, then the procedure for its 25. Anchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.C. 2231, 138 L.Ed.2d 689 (1997); Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. enforcement is by a motion pursuant to 12 326, 100 S.Ct. 1166, 1174, 63 L.Ed.2d 427 (1980). O.S. § 2012(B)(6), or Rule 13 motion for 26. Chavex v. Netflix, Inc., 162 Cal.App.4th 43, 75 Cal.Rptr.3d 4l3 (Ct.App. 2008). summary judgment; and (2) An interstate 27. Perdue v. Kenny A. ex rel. Winn, 559 US. 542, 130 S.Ct. 1662, forum-selection clause is separable from 1673, 176 L.Ed.2d 494 (2010); In re Enron Corp. Securities, 586 F. Supp.2d 732 (S.D. Tex. 2008). the contract in which it appears, and its validity like any other provision in a con-

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 31 tract is subject to the requirements of a ¶4 Tucker alleged that the Case Manager valid contract. informed him that the law firm would engage in a four to five-day trial to defend Tucker, the CERTIORARI PREVIOUSLY GRANTED; law firm would provide an experienced trial OPINION OF THE COURT OF CIVIL lawyer with twenty to thirty years of experi- APPEALS VACATED; JUDGMENT OF THE ence to represent him at trial, and that the law DISTRICT COURT IS REVERSED; CAUSE firm “had attorneys who were licensed to prac- IS REMANDED FOR FURTHER tice in Oklahoma and who would in fact PROCEEDINGS CONSISTENT WITH defend the Plaintiff in trial . . . .” He alleged THIS OPINION that these statements were untrue and were Blake Sonne, Sonne Law Firm, P.L.C., Norman, made to fraudulently induce him to enter into Oklahoma, for Plaintiff/Appellant. an agreement for legal services and to pay “outrageous fees.” The law firm required Tuck- A. Scott McDaniel, McDaniel Acord, P.L.L.C., er to pay a non-refundable retainer of $13,690.00 Tulsa, Oklahoma, for Defendant/Appellee. for legal representation for the trial. Tucker had EDMONDSON, J. paid to the law firm $12,200.00 in installments by the time his trial occurred. ¶1 This case involves a trial court’s dismissal of an action based upon its determination that ¶5 He also alleged that a few days after he the action was not brought in the forum that signed the agreement, the Cochran Firm was specified in the attorney-client written informed him that Josh McKeown, an attorney agreement. We hold that a party should utilize with the firm, would represent him at the trial. the 12 O.S. § 2012(B)(6)/summary judgment He further alleged that on the morning of his procedure when that party seeks to dismiss an trial he met for the first time the attorney who Oklahoma proceeding based upon an alleged actually represented him at his trial, an Okla- contractual right of interstate venue selection. homa lawyer, E.W. Childers. Tucker alleged The matter is remanded to the District Court that during the trial McKeown was in the for the parties to adjudicate their respective courtroom seated in the area for the public and claims by the proper procedure. “whispered a couple of times to Childers.” He also alleged that the Cochran Firm paid I. Childers $500.00 to represent him at his trial ¶2 The City of Oklahoma City charged Chris- which lasted approximately forty minutes. topher Tucker (Tucker) with municipal misde- ¶6 Tucker alleged that McKeown had not meanor offenses of interfering with official sought to be admitted pro hac vice for the trial. process, obstructing an officer, and failing to He also alleged that the Cochran Firm had (1) obey lawful commands of an officer. On failed to request a court reporter for prepara- August 9, 2010, Tucker signed an agreement tion of a trial transcript for an appeal, (2) failed for the Cochran Firm-Criminal Defense, Bir- to conduct any discovery or otherwise request mingham, L.L.C., (Cochran Firm), to provide documents and evidence from the City of him with legal representation for his sched- Oklahoma City, (3) failed to secure and sub- uled trial in October of 2010. Tucker was poena the police vehicle videos and videos found guilty of a municipal charge as a result from nearby businesses, (4) failed to obtain of the trial proceedings. information concerning complaints and disci- ¶3 Tucker filed an action in the District Court plinary actions concerning the police officers of Oklahoma County against the Cochran Firm involved, (5) failed to obtain character witnesses alleging that the Case Manager for the law for Tucker, (6) failed to prepare witnesses for the firm, John Pride, had misrepresented the nature trial, (7) failed to obtain an expert witness for of the services that the law firm would provide Tucker as promised by the Cochran Firm, (8) and that the Cochran Firm had (1) committed failed to submit a trial brief on a specific issue, actual and constructive fraud, (2) committed (9) failed to object to the identification of evi- acts of legal malpractice and negligence, (3) dence, (10) failed to move to suppress evidence violated the Oklahoma Consumer Protection based on an officer’s lack of probable cause or Act (15 O.S. §§ 751- 764.1), (4) committed the reasonable suspicion to stop, (11) failed to seek tort of outrage, and (5) breached the parties’ admission pro hac vice, and (12) failed to ade- agreement. quately prepare with local counsel.

32 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 ¶7 The Cochran Firm filed a motion to dis- gations created by a lawyer-client relationship miss Tucker’s petition. The law firm’s motion in an Oklahoma legal proceeding to be gov- relied on 12 O.S. § 19;1 a forum-selection clause erned by the law of another state. in the contract; and Bakhsh v. JACRRC Enter- ¶11 The Cochran Firm filed a petition for prises, Inc., 1995 OK CIV APP 40, 895 P.2d 746, certiorari in this Court and argued that (1) the where in an opinion released for publication by appellate court should have applied an abuse- order of the Court of Civil Appeals, the court of-discretion standard instead of using a de stated that parties to a contract may select the novo review, (2) the burden of persuasion is on jurisdiction in which all actions arising from one attacking a forum-selection clause and the their transaction shall be heard, and a selected record shows that Tucker failed this burden, (3) forum in Dallas, Texas, was held to be reason- a client-attorney fiduciary relationship does able in the circumstances. The forum-selection not apply when fees are negotiated, (4) the clause at issue in this case states that: “This appellate court improperly adjudicated disagreement shall be interpreted under the laws puted questions of fact, and (5) the appellate of the state of California and jurisdiction and court improperly based public policy consider- venue shall be exclusively in the county of Los ations on allegations of fact where those facts Angeles, in the state of California.”2 occurred after the contract negotiation. ¶8 This initial motion to dismiss was denied ¶12 The Cochran Firm relies upon various by the trial court because it was signed by an opinions of the Court of Civil Appeals for the attorney not admitted to practice before the proposition that a forum-selection clause court. Lawyers for the Cochran Firm subse- should be enforced and its argument on the quently sought to vacate the trial court’s ruling nature of Tucker’s burden in the trial court. pursuant to 12 O.S. § 1031.1 with an argument Tucker relies on an opinion from the Court of that the person who signed the initial motion Civil Appeals for the concept that a “reason- to dismiss was “a member” of the Cochran ableness test” should be used when a court Firm acting as a “pro se defendant.” The trial decides whether to enforce a forum-selection court vacated its order denying the motion to clause. Our Court of Civil Appeals has dismiss; directed the Cochran Firm to file an addressed whether forum-selection clauses in amended motion to dismiss; and ordered that written agreements are enforceable in various the amended motion to dismiss, when filed, circumstances.4 Although they constitute per- would relate back to the date the initial motion suasive authority only and are not precedential to dismiss was filed. because their publication was not pursuant to ¶9 After filing the amended motion to dis- orders of the Supreme Court, they do serve as miss, the trial court determined that the forum- examples of courts in Oklahoma enforcing selection clause in the retainer agreement forum-selection clauses in Oklahoma since should be judicially enforced. The trial court 1989.5 This Court has examined forum-selec- also determined that enforcement of the forum- tion clauses in the contexts of arbitration and selection clause would not be unfair or unrea- issue preclusion,6 but the issues before us today sonable under the circumstances. The trial have not been previously addressed by this court dismissed the action for improper venue. Court. ¶10 Tucker appealed and the Court of Civil ¶13 Certiorari was previously granted by Appeals, in an opinion released for publica- this Court, and we vacate the opinion of the tion, reversed the trial court and remanded the Court of Civil Appeals. We have not previously cause for further proceedings. The appellate addressed the procedure employed in the Dis- court concluded that the Retention Agreement trict Court and the respective burdens of the specified who must sign the agreement on parties when a court adjudicates the enforce- behalf of the law firm, and that this was not ment of a forum-selection clause. We remand done. The court concluded that in the absence the case to the District Court for the purpose of of a written retention agreement, the parties providing the parties an opportunity to litigate had an oral retention agreement, and that the the issue of the enforceability of the clause in trial court had failed to determine whether this proceeding. there existed a valid forum-selection agreement II. between the parties.3 The court appears to have concluded that a forum-selection clause would ¶14 The first issue raised on certiorari violate public policy if the clause required obli- involves the allocation of the burdens of plead-

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 33 ing, persuasion, and proof; and this necessarily ¶17 The Oklahoma Supreme Court set forth raises the proper procedure for a party invok- the procedural requirements for the forum non ing a forum-selection clause. In the last twenty conveniens motion requesting change of venue, years, when a mandatory7 forum-selection noting that the procedural requirements and clause specified an exclusive forum for both timing were not controlled by statute. We did jurisdiction and venue8 the United States Court not view this motion as one raising “improper of Appeals for the Tenth Circuit allowed a venue” within the scope of the venue statutes. defendant to judicially enforce that clause by a Just as 12 O.S. § 2012(B)(3) does not apply to a motion to dismiss for improper venue pursu- motion raising the judicial doctrine of forum ant to Fed.R.Civ.P. 12(b)(3).9 On the other hand, non conveniens, neither does § 2012(B)(3) apply the First Circuit Court of Appeals has treated a to a motion alleging a contractual agreement for motion to dismiss based upon a forum-selec- a different venue.16 tion clause as a motion alleging the failure to ¶18 In Atlantic Marine Construction Co., supra, state a claim for which relief can be granted 10 the U. S. Supreme Court noted that it need not pursuant to Fed.R.Civ.P. 12(b)(6). However, in consider application of Fed.R.Civ.P. 12(b)(6), its 2013 opinion in Atlantic Marine Construction and stated that “[e]ven if a defendant could use Co. v. United States District Court for the Western Rule 12(b)(6) to enforce a forum-selection District of Texas, the United States Supreme clause, that would not change our conclusions Court determined that the proper procedural that § 1406(a) and Rule 12(b)(3) are not proper method for enforcing a forum-selection clause mechanisms to enforce a forum-selection in federal courts was through the doctrine of clause.”17 The United States Court of Appeals forum non conveniens and a statute allowing for the Second Circuit has appeared to have con- 11 transfer of an action to another federal court. strued this language to mean that a Federal ¶15 The Court indicated that federal venue Rule 12(b) motion is not a proper mechanism provisions “alone define whether venue exists for enforcement of a valid forum-selection in a given forum” and a parties’ agreement may clause.18 Prior to Atlantic Marine Construction not make venue improper in a forum where a Co., supra, authors noted that the First, Second, federal venue statute makes venue proper.12 For Third, and Sixth Circuit Courts allowed forum- this reason a Rule 12(b)(3) motion to dismiss for selection clauses to be enforced by Rule 12(b) improper venue would not be available where (6) motion alleging “failure to state a claim,” venue was proper pursuant to federal statute while the Fourth, Seventh, Ninth, Eleventh, even though the parties had previously agreed and D.C. Circuit Courts allowed enforcement to a different forum: “ . . . a forum-selection by a Rule 12(b)(3) motion alleging “improper 19 clause does not render venue in a court ‘wrong’ venue.” One author has noted: “But the or ‘improper’ within the meaning of [28 U.S.C.] [Supreme] Court has explicitly left open the § 1406(a) or Rule 12(b)(3) . . . .”13 possibility that using Rule 12(b)(6), and other means of raising forum clauses as an affirma- ¶16 Oklahoma’s 12 O.S.2011 § 2012 (B)(3) tive defense, may be ‘ultimately correct.’”20 states that a motion to dismiss may be filed where “improper venue” is asserted.14 This ¶19 Oklahoma currently has a statute addressing forum non conveniens. 12 O.S. § Court, like the United States Supreme Court, 21 has long-recognized that forum non conveniens 140.3. However, no party to the present con- does not present the issue of an “improper troversy argues that any language in § 140.3 forum,” but may apply when more than one requires its application to a forum-selection clause in a contract. We decline to make any forum is proper. We noted in Stevens v. Blevins 22 that two proper venues must exist, and we holding on the application of the statute. explained that “this Court set forth procedural ¶20 The forum-selection clause in the case requirements including an application for a before us was not created by a statute, but by a change of venue by the parties stating the facts contract made by these parties. Obligations on which the transfer is based . . . [and] we created by parties in a contract are enforced as found that an application for a change of venue contractual rights in a legal proceeding that under the doctrine of intrastate forum non con- adjudicates a contract cause of action (and veniens must be filed by a party before the date defenses thereto).23 Contractual obligations fixed for filing an answer.”15 The procedure may be used by a defendant to avoid liability was established by our opinion and not by in a legal action on the contract, and they are pleading statutes. usually presented in the legal contest in forms

34 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 such as contesting plaintiff’s alleged meaning ¶23 The High Court identified the parties’ of the language of the contract, disputes over private interests as those including “relative contract formation, performance, or execution, ease of access to sources of proof; availability of as well as affirmative defenses and compulsory compulsory process for attendance of unwill- counterclaims. The dispute before us concerns ing, and the cost of obtaining attendance of the language in the contract and its judicial willing, witnesses; possibility of view of prem- enforcement. We have indicated that judicial ises, if view would be appropriate to the action; enforcement of the contract-based claims in a and all other practical problems that make trial retainer agreement include enforcing contractu- of a case easy, expeditious and inexpensive.”29 ally specified arbitration and venue selection.24 The Court identified the public-interest factors What we have before us is a dispute concern- as including “the administrative difficulties ing the judicial enforcement of a contract-based flowing from court congestion; the local inter- obligation specifying venue selection, a merits- est in having localized controversies decided at based issue on the meaning of a specific provi- home; [and] the interest in having the trial of a sion of a contract. diversity case in a forum that is at home with the law.”30 ¶21 The Cochran Firm sought dismissal in the trial court. Because this is a dispute on the ¶24 In Conoco, Inc. v. Agrico Chemical Co., we merits of the cause of action, it may be proce- cited a 1947 U. S. Supreme Court opinion and a durally presented by either an appropriate § 1954 opinion from this Court, and we explained 2012(B)(6) motion challenging the sufficiency of that we also examine the public and private the face of the petition,25 or by a motion for sum- interests involved in a forum non conveniens mary judgment seeking a judgment on the dispute.31 26 merits of a contract-based claim. The party The forum non conveniens criteria consider that sought to invoke judicial relief based upon private and public interests. Gulf Oil Corpo- an alleged contractual agreement for venue ration v. Gilbert, 330 U.S. at 508, 67 S.Ct. at selection is the defendant, the Cochran Firm, 843. The private interests to be considered when it sought dismissal in the trial court. A include whether the forum 1) is convenient burden to present facts, claims and legal argu- for witnesses, 2) may reach unwilling wit- ments falls on the party who asserts an entitle- nesses by compulsory process, 3) allows a ment to the judicial relief sought.27 The Cochran view of the premises, 4) is near the sources Firm has the burden to file the appropriate § of proof, and 5) serves to make trial of the 2012(B)(6) motion to dismiss attacking facial case less burdensome and more conve- sufficiency of the petition or a motion for sum- nient. Id. The public interests include the mary judgment. Once Cochran’s initial burden burden of jury duty on the community and is satisfied, a burden is placed on Tucker to the community interest in having local con- make the appropriate procedural and substan- troversies decided at home. Id. Except where tive response, as we now explain. the balance of these interests tilts strongly in III. favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. Id. ¶22 A typical dispute involving the judicial Oklahoma adopted these criteria in apply- doctrine of interstate forum non conveniens is not ing the doctrine of interstate forum non con- based upon the parties’ agreement or the mer- veniens. St. Louis-San Francisco Ry. Co. v. its of a contract and does not involve a 12 O.S. Superior Court, at ¶ 23, 276 P.2d at 778. § 2012(B)(6) procedure. Rather, the doctrine Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, involves specific private and public interests. 32 The U.S. Supreme Court stated that when a at ¶ 11, 115 P.3d at 833. federal district court adjudicates a typical forum ¶25 In Atlantic Marine Construction Co., supra, non conveniens motion the trial court must the Court stated that a plaintiff’s choice of evaluate both the convenience of the parties venue should be considered when a court adju- and various public-interest considerations; and dicates a forum non conveniens motion.33 The upon weighing the relevant factors the court doctrine of forum non conveniens recognizes the should decide whether, on balance, a transfer convenience of the parties and their interests in would serve the convenience of parties and selecting and litigating in a particular judicial witnesses and otherwise promote the interest forum. 34 However, in a circumstance of contract- of justice.28 based venue this interest has been expressed by

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 35 them when they created an agreement stating their nor so intended by the parties, in respect to mat- preference for a forum. As noted in Atlantic Marine, ters and things contemplated and embraced in “The enforcement of valid forum-selection the contract; and whether a contract is entire or clauses, bargained for by the parties, protects severable is primarily a question of intention be their legitimate expectations and furthers vital determined from language used by the parties interests of the justice system.”35 and the subject matter of agreement.42 A contract with a forum-selection clause is separable in that ¶26 In Conoco, Inc. v. Agrico Chemical Co., supra, this Court relied upon the U.\S. Supreme the clause involves judicial enforcement of the Court’s opinion in Gulf Oil Corporation v. Gil- contract instead of the usual contractual provi- bert, supra, and stated that “Except where the sions concerning performance and the parties’ balance of these [public and private] interests obligations. tilts strongly in favor of the defendant, the ¶29 One example of separable clauses in a plaintiff’s choice of forum should rarely be dis- contract has occurred where courts examine turbed.”36 A valid forum-selection clause is one arbitration clauses in a contract to determine if of those instances where a plaintiff’s choice of the clause itself is valid. In this sense and para- a forum at the time of litigation may be dis- phrasing from the U.S. Supreme Court, when turbed by plaintiff’s previous contractual parties contractually commit to a particular choice of a different forum for litigation. In venue to hear disputes arising from a contract, Atlantic Marine Construction Co., supra, the attacks on the validity of the contract, as distinct Court stated that when a valid forum-selection from attacks on the validity of the venue-selection clause is present, “ . . . the plaintiff’s choice of clause itself, are to be resolved in the venue con- forum merits no weight. Rather, as the party tractually agreed upon by the parties unless defying the forum-selection clause, the plaintiff the venue-selection clause is invalid.43 bears the burden of establishing that transfer to the forum for which the parties bargained is ¶30 We decline to decide whether the amend- unwarranted.”37 One reason for this is “the ed motion to dismiss filed by the Cochran Firm plaintiff has effectively exercised its ‘venue properly raised the issue of forum-clause valid- privilege’ before a dispute arises” when the ity, or was a request for summary judgment or plaintiff and defendant made a valid agreement a § 2012(B)(6) motion. Because of apparent on the judicial venue of their dispute.38 Because confusion on the issue of § 2012(B)(6) conver- the private interests in selecting a forum for sion to a motion to summary judgment as such disputes have been determined contractually relates to the standard of review raised by the between the parties, a party challenging the parties on certiorari, we note the following. selection is usually left only two choices, chal- This Court “has consistently stated that a lenging the validity of the forum-selection motion to dismiss for failure to state a claim clause or showing that public interest or public upon which relief may be granted, as provided policy requires non-enforcement of the clause. by 12 O.S.2001 § 2012(B)(6), is to be treated as a motion for summary judgment when matters ¶27 Some courts have treated the validity of outside of the pleadings are presented in sup- a forum-selection clause as an issue separable port of the motion and those extra-pled matters from the validity of the rest of the contract in are not excluded by the trial court when the which the clause appears; i.e., similar to the motion is considered.”44 Further, a copy of any issue presented by the validity of an arbitration 39 written instrument which is an exhibit to a clause, a forum-selection clause’s validity is pleading is a part thereof for all purposes.45 considered separately from the validity of the 40 When a defendant files a § 2012(B)(6) motion rest of the contract in which it appears. Histori- with an incorporated exhibit which is relied on cally, this Court has recognized that a contract by plaintiff in the petition, or is integral to may possess severable parts and severability is plaintiff’s petition, the motion is not converted determined by the particular circumstances in into one for summary judgment.46 The Cochran each case, “each case must depend very large on Firm filed an amended motion to dismiss with the terms and circumstances of the contract six attached exhibits, Tucker’s Petition, an affi- involved.”41 davit of a person employed by the Cochran ¶28 Generally, a severable contract is suscep- Firm, the written contract, and three opinions tible of division and apportionment in its from the U. S. District Court for the Northern nature and purpose, and having two or more District of Oklahoma. Whether the incorporat- parts, not necessarily dependent on each other, ed written contract is integral to Tucker’s peti-

36 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 tion and therefore not used as a basis for con- a summary judgment request. We decline to version to summary judgment was not briefed decide these issues raised by the parties in by the parties. Additionally, a valid contract advance of them litigating their claims in the requires that there should be (1) parties capable District Court utilizing a procedure that is of contracting, (2) their consent, (3) a lawful proper for the nature of the claims they desire object, and (4) sufficient cause or consider- to litigate.52 We recognize that this Court has ation.47 When the Cochran Firm attached an not previously given express guidance for the affidavit of one of its employees to the motion procedure counsel should use for litigating a to dismiss, the issue arises whether the lan- forum-selection clause, but litigation of a con- guage used by the defendant in its motion/ tract-based claim of forum selection should be affidavit was for the purpose of showing Tuck- litigated as all legal claims, in the context of er’s contractual intent, knowledge, and con- procedural rules guaranteeing that a legal sent and whether a prima facie valid forum- claim may be “carried to an adjudication on the selection clause existed. In other words, was merits.”53 the Cochran Firm making an effort to show ¶31 No one may contract requiring conduct that (1) a written agreement on forum-selection that is against public policy. 15 O.S. 2011 § 211.54 satisfied these four necessary elements to a In Groendyke Transport, Inc. v. Cook, we explained contract, (2) a prima facie forum-selection that the judicial doctrine of forum non conveni- clause existed, and (3) the Cochran Firm was ens springs from the court’s equitable powers entitled to a dismissal on the issue of forum- and exercised when the interests of justice, selection because of this affidavit? Was the including public policy, require.55 In the matter quest for dismissal converted to summary before us, Tucker’s necessarily implied argu- judgment by the Cochran Firm’s use of the ment is that public policy requires negation of 48 employee’s affidavit? Tucker filed a response the forum-selection clause in this case and the with an affidavit attached which included substance of that public policy is found in (1) statements that he was not informed by the the “public interests” recognized by the doc- Defendant of the forum-selection clause in the trine of forum non conveniens, (2) the duties and Agreement, and that he did not negotiate or responsibilities of a lawyer licensed to practice discuss the clause. Plaintiff attached a copy of law in this state that were allegedly breached the written agreement to his response for the by the Cochran Firm, (3) general principles of purpose of showing that he did not place his contract law that were allegedly violated by initials next to the forum-selection clause. Was the defendant, and (4) other allegations of this filing sufficient to raise a factual issue in wrongful conduct by the defendant. the context of summary judgment relating to the four elements to a contract as a necessary ¶32 As we previously noted, in Atlantic predicate for a valid forum-selection clause Marine Construction Co., supra, the Court stated and thus making the issue one for a jury?49 that when a valid forum-selection clause is Plaintiff’s response, like Defendant’s motion, present, “as the party defying the forum-selec- did not provide the trial court with any discus- tion clause, the plaintiff bears the burden of sion, guidance, or request that the issues establishing that transfer to the forum for framed by the parties be reviewed by the trial which the parties bargained is unwarranted.” court using procedure for a § 2012(B) motion, The Court further explained that since the pri- motion for summary judgment, or some other vate interests were expressed by the forum- standard. The motion and response do not selection clause, a court should not consider comply with the requirements of Rule 13 of the arguments about the parties’ private interests, Uniform Rules for District Courts. Summary but consider only the public interests: “As a consequence, a district court may consider judgment proceedings are governed by Rule 56 13.50 The trial court granted the motion to dis- arguments about public-interest factors only.” miss, apparently convinced by Defendant’s ¶33 We agree with placing this burden on the brief that Tucker was required to show that party challenging a forum-selection clause after enforcement was mandatory unless Tucker a prima facie validity of the clause is shown by a showed that enforcement of the forum-selec- party relying upon such a clause, if a party chal- tion clause was “unfair and unreasonable lenging this validity is unsuccessful on that under the circumstances.”51 The judgment of challenge. This burden is consistent with our the District Court appears to show that its deci- opinions explaining that only those contracts sion was not based upon either § 2012(B)(6) or that are invalid on their faces or clearly tend

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 37 against public policy are void, that a contract ¶36 The procedure when a contract-speci- should receive such an interpretation as will fied venue is the subject of litigation is not the make it lawful if such result is not clearly viola- same as when a motion is filed seeking the tive of the intent of the parties, and that one application of the judicial doctrine of forum who asserts the invalidity of a contract has the non conveniens. For example, in the usual dis- burden of proof.57 The Cochran Firm argued in pute involving the judicial doctrine of forum its reply to Tucker’s response that his “burden non conveniens, if a trial court grants a motion of proof” required him to show that litigating in to dismiss then the order is appealed as a final California was “unfair or unreasonable.” While order as defined by 12 O.S. § 953.61 In the pres- Tucker’s public policy claim may include the ent appeal, the Court directed the parties to traditional “unfair and unreasonable” claim as comply with the procedure provided by Okla. such relates to a public-interest recognized in Sup. Ct. R. 1.36. This Rule provides a proce- traditional forum non conveniens doctrine; dure for summary judgments and dismissals because the Cochran Firm is asserting a con- for failure to state a claim or lack of jurisdiction tractual right, Tucker may raise any cognizable of a person or subject matter.62 While the sub- contract-based claim, including a claim based stance of this appeal should be one from a § on public policy, when that claim relates to the 2012(B)(6)motion/summary judgment, the forum-selection clause itself as opposed to the parties had no notice that their trial court briefs contract as a whole. would serve as briefs on appeal or that a forum-selection litigation contest was one sub- ¶34 In response to the Cochran Firm’s ject to 12 O.S. § 2012(B)(6) and the require- motion, Tucker argued that the forum-selection ments for a Rule 13 summary judgment. While clause was never negotiated, bargained for, or the lack of notice concerning the function of discussed by the parties, and that while several Rule 1.36 and certain trial briefs serving as of the contractual provisions required a show- appellate briefs may be corrected by an appel- ing of Tucker’s agreement by the placement of late court within an appeal, the parties must be his initials in various places in the contract, afforded notice with an opportunity to be there was no place for his initials to show heard on their litigable interests when an agreement with the forum-selection clause. He appellate court requires a judicial procedure in also argued “Defendant has made no allega- the trial court and that procedure allocates bur- tion that the Agreement was a negotiated con- dens of persuasion and proof.63 If the Cochran tract.” Tucker challenged whether his consent Firm’s exhibits to its motion served to show had been given to the forum-selection clause.58 prima facie validity of the forum-selection Tucker also alleged fraud in his petition, and if clause in support of the motion for § 2012(B)(6) fraud was present then a forum-selection relief or summary judgment, then Tucker had a clause should not be enforced since it would burden to respond to the motion and argue the violate public policy. Of course, a forum-selec- proper response to a § 2012(B)(6) motion or tion clause obtained by fraud is voidable.59 respond to a motion for summary judgment Tucker also alleged public policy was violated and present any material facts that were dis- by a lack of professional ethics by the Cochran puted, and argue that Cochran Firm’s claim Firm. We decline to decide these issues prior to concerning the venue selection should not be their litigation in the trial court using a proper granted as a matter of law.64 Remand will pro- procedure. vide the parties the opportunity to litigate the ¶35 We need not address Tucker’s and the issues within a proper procedure and with Cochran Firm’s additional arguments because notice of that procedure. we must remand this proceeding to the District IV. Court to provide an opportunity for the parties to present their claims within the proper proce- ¶37 We hold: (1) When a parties’ agreement dural framework. In Rogers v. Dell Computer has an interstate forum-selection clause and a Corp., we remanded the matter to the District party seeks its judicial enforcement in an Okla- Court for additional proceedings “[b]ecause homa District Court by seeking dismissal of we have not before addressed the procedure to the Oklahoma proceeding, then the procedure be employed on applications to compel arbitra- for its enforcement is by a motion pursuant to tion.”60 We have not before addressed the pro- 12 O.S. § 2012(B)(6), or Rule 13 motion for sum- cedure to be employed on a motion to enforce mary judgment; and (2) An interstate forum- a venue-selection clause. selection clause is separable from the contract

38 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 in which it appears, and its validity like any Ch. 15, App. 1, (“No opinion [of the Court of Appeals] so published shall have precedential effect but may be considered persuasive.”). other provision in a contract is subject to the 6. Coulter v. First American Resources, L.L.C., 2009 OK 53, ¶ 1, 214 requirements of a valid contract. P.3d 807, 808 (trial court committed error when it declined to enforce parties’ contractual choice of arbitration venue); National Diversified ¶38 The opinion by the Court of Civil Appeals Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, 946 P.2d 662, 667-668 (in the absence of an appeal from a dismissal is vacated. The judgment of the District Court for improper venue based upon a forum-selection clause, the ruling is reversed, and the matter is remanded to that became final in the issue-preclusion sense). 7. See, e.g., Excell, Inc. v. Sterling Boiler & Mechanical, Inc., 106 F.3d court for further proceedings consistent with 318, 321 (10th Cir. 1997) (Forum-selection clauses “are frequently clas- this opinion. sified as either mandatory or permissive,” where mandatory clauses contain clear language showing that jurisdiction is appropriate only in ¶39 CONCUR: REIF, V.C.J., WATT, WIN- the designated forum, and permissive clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere.). Cf. Phil- CHESTER, EDMONDSON, TAYLOR, COMBS, ips v. Audio Active Ltd., 494 F.3d 378, 383 (2d Cir. 2007) (classifying a GURICH, JJ. forum-selection clause as mandatory or permissive is one step in deciding whether the parties are required to bring a dispute to the ¶40 CONCUR IN RESULT: KAUGER, J. designated forum or simply permitted to do so). 8. Some courts have recognized a distinction between a forum- ¶41 NOT PARTICIPATING: COLBERT, C.J. selection clause and a mere venue-selection clause. Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.1982) (“The existence of EDMONDSON, J. a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum.”); SBKC Serv. Corp. v. 1111 1. 12 O.S. § 19 was created by Laws 2009, c. 228, § 2, and held to be Prospect Partners, L.P., 105 F.3d 578, 582 (10th Cir.1997) (“Our interpre- unconstitutional in Douglas v. Cox Retirement Properties, Inc., 2013 OK tation of the myriad cases involving the issue leads us to the conclu- 37, 302 P.3d 789. No issue relating to § 19 is before this Court in this sion that term [forum selection clause] should be applied only to certiorari proceeding. agreements which clearly confine litigation to specific tribunals to the 2. Record on Accelerated Appeal (Okla. Sup. Ct. No. 111,181, filed exclusion of all others.”) (explanatory phrase added). Oct. 25, 2012), No. 10, Defendant’s Amended Motion to Dismiss, 9. K & V Scientific Co., Inc. v. Bayerische Motoren Werke Aktiengesell- Exhibit 3A, agreement between “The Cochran Firm-Criminal Defense” schaft, 314 F.3d 494, 497 (10th Cir.2002), (“A motion to dismiss based on and Christopher Tucker, with a payor in addition to Tucker, and dated a forum selection clause frequently is analyzed as a motion to dismiss August 9, 2010. for improper venue under Fed.R.Civ.P. 12(b)(3).”), quoting Riley v. 3. While the Court of Civil Appeals concluded that the written Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 956 (10th Cir.1992). agreement was not properly executed by the defendant, that issue is 10. Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. not properly before us on certiorari. 2009). 4. See, e.g., Victory Energy Operations, L.L.C. v. Rain CII Carbon, 11. Atlantic Marine Construction Co. v. United States District Court for L.L.C., 2014 OK CIV APP 83, 335 P.3d 809 (released for publication by the Western District of Texas, ___ U.S. ___ , 134 S.Ct. 568, 579, 580, 187 order of the Court of Civil Appeals) (Louisiana choice-of-law clause in L.Ed.2d 487 (2013) (“[28 U.S.C.] Section 1404(a) therefore provides a parties’ agreement applied); Beverly Enterprises-Texas. Inc. v. Devine mechanism for enforcement of forum-selection clauses that point to a Convalescent Care Center, 2012 OK CIV APP 16, 273 P.3d 890 (released particular federal district.” and “the appropriate way to enforce a for publication by order of the Court of Civil Appeals)(discussed man- forum-selection clause pointing to a state or foreign forum is through datory and permissive forum-selection clauses); Howard Family Chari- the doctrine of forum non conveniens”). table Foundation, Inc. v. Trimble , 2011 OK CIV APP 85, 259 P.3d 850 12. Atlantic Marine Construction Co., ___ U.S. ___, 134 S.Ct. at 578 (released for publication by order of the Court of Civil Appeals) (rejecting “petitioner’s approach” that a forum-selection clause could (whether the forum selection clause comports with constitutional stan- make proper venue improper, and stating that: “The conclusion that dards and public policy is one for determination by the trial court venue is proper so long as the requirements of § 1391(b) are met, irre- upon remand); Lively v. IJAM, Inc., 2005 OK CIV APP 29, 114 P.3d 487 spective of any forum-selection clause, also follows from our prior (released for publication by order of the Court of Civil Appeals) (no decisions construing the federal venue statutes.”). evidence showed that a party agreed to a forum-selection clause in a 13. Atlantic Marine Construction Co., ___ U.S. ___, 134 S.Ct. at 579. post-contract invoice accompanying delivery of product where the 14. A-Plus Janitorial & Carpet Cleaning v. Employers’ Workers’ Com- clause materially altered the contract); Adams v. Bay, Ltd., 2002 OK CIV pensation Ass’n, 1997 OK 37, n. 52, 936 P.2d 916, 929 citing 12 O.S.1991 APP 117, 60 P.3d 509 (released for publication by order of the Court of Civil Appeals) (forum selection clause designating Nueces County, § 2012(B)(3). Texas, was not shown to be either unfair or unreasonable, and the 12 O.S.2011 § 2012 provides in pertinent part: . . . order of dismissal in McClain County, Oklahoma, was affirmed); State “ . . . B. HOW PRESENTED. Every defense, in law or fact, to a claim ex rel. Fisher v. South Atlantic Dredging Co., Inc., 2000 OK CIV APP 123, for relief in any pleading, whether a claim, counterclaim, cross-claim, 15 P.3d 523 (released for publication by order of the Court of Civil or third-party claim, shall be asserted in the responsive pleading Appeals) (Oklahoma County action dismissed and order affirmed by thereto if one is required, except that the following defenses may at the appellate court when forum-selection clause designating “any other option of the pleader be made by motion: . . . court in which such action might properly be brought” was construed 3. Improper venue; . . . .” as meaning a court with jurisdiction of both the subject matter and the 15. Stevens v. Blevins, 1995 OK 6, 890 P.2d 936, 939 (emphasis and parties; and defendants did not have sufficient minimum contacts for citation omitted). personal jurisdiction in Oklahoma); Barker Leasing, Inc. v. State Ins. 16. Just as we do not view the forum-selection clause as defeating Fund, 1995 OK CIV APP, 158, 910 P.2d 1102 (released for publication by the reach of Oklahoma venue statutes, we do not view the clause as order of the Court of Civil Appeals) (contractual venue choice of Okla- defeating the jurisdiction of Oklahoma Courts. While personal and homa County for the State Insurance Fund and its Commissioner was private rights may be waived, the law involving the power or structure not clearly unreasonable); Bakhsh v. JACRRC Enterprises, Inc., 1995 OK of government may not be waived and subject matter jurisdiction may CIV APP 40, 895 P.2d 746 (released for publication by order of the not be established by waiver, consent, or stipulation. State Insurance Court of Civil Appeals) (parties to a contract may choose the jurisdic- Fund v. JOA, Inc., 2003 OK 82, ¶ 7, 78 P.3d 534, 536. One author has tion in which all actions arising from their transaction shall be heard, stated that a contractual forum-selection clause is “a type of contrac- and a selected forum in Dallas, Texas, was reasonable in the circum- tual waiver.” Matthew J. Sorensen, Enforcement of Forum-Selection stances); Eads v. Woodmen of The World Life Insurance Society, 1989 OK Clauses in Federal Court After Atlantic Marine, 82 Fordham L. Rev. 2521, CIV APP 19, 785 P.2d 328 (released for publication by order of the 2550 (2014) (contending that: “The exclusive nature of the clause Court of Civil Appeals) (enforcement of the forum-selection clause was makes it a form of waiver, the intentional relinquishment or abandon- unfair and unreasonable in the particular circumstances). ment of a known right.”). Thus, we do not view the matter presented 5. Carbajal v. Precision Builders, Inc., 2014 OK 62, n. 10. 333 P.3d 258, by the Cochran Firm as one presenting a jurisdictional issue. See, e.g., citing 12 O.S.Supp.2012 Ch. 15, App. Okla. Sup. Ct. R. 1.200(c)(2); Shaffer Powertech Technology Inc. v. Tessera, Inc., 660 F.3d 1301, 1309-1310 (Fed. v. Jeffery, 1996 OK 47, n. 11, 915 P.2d 910, citing former 12 O.S.1991 Ch. 15, Cir. 2011), (explaining that in MedImmune, Inc. v. Genentech, Inc., 549 App. 2, Rule 1.203. See also former Supreme Court Rule 27, 12 O.S.1981 U.S. 118, 135-136, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007), the Court stated

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 39 that the issue of contract interpretation is a merits issue, and not appro- based solely upon a jurisdictional ground is not converted to one for priate for a decision on a motion to dismiss under Rule 12(b)(1)). summary judgment by reliance upon matters outside the pleadings, 17. Atlantic Marine Construction Co. v. United States District Court for but a § 2012(B)(6) motion is so converted when reliance is made upon the Western District of Texas, ___ U.S. ___ , 134 S.Ct. 568, 580, 187 L.Ed.2d matters outside the pleadings). 487 (2013). 27. In re Initiative Petition No. 397, State Question No. 767, 2014 OK 18. Martinez v. Bloomberg LP, 740 F.3d 211, 216 (2d Cir. 2014) (“’nei- 23, ¶ 39, 326 P.3d 496, 511. See Colton v. Huntleigh USA Corp., 2005 OK ther the Supreme Court, nor this Court, has specifically designated a 46, ¶ 10, 121 P.3d 1070, 1073 (The burden to show any particular fact or single clause of Rule 12(b) ... as the proper procedural mechanism’ for claim rests upon the party asserting such fact or claim as part of that enforcing a forum selection clause through a motion to dismiss. . . . The party’s action or defense). Supreme Court recently resolved this uncertainty in Atlantic Marine … 28. Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, 581. [where] the Court held that generally ‘the appropriate way to enforce 29. Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, 581, a forum-selection clause pointing to a state or foreign forum is through n.6, quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, n. 6, 102 S.Ct. the doctrine of forum non conveniens,’ rather than Rule 12(b).”) (mate- 252, 70 L.Ed.2d 419 (1981) . rial omitted and quoting Trade Comet.com LLC v. Google, Inc., 647 F.3d 30. Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, 581, 472, 475 (2d Cir. 2011) and citing Atlantic Marine, 134 S.Ct. at 580. His- n.6, quoting Piper Aircraft Co. 454 U.S. 235, 241, n. 6.. torically, the Second Circuit has allowed enforcement of forum-selec- 31. Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, ¶ 11, 115 P.3d tion clauses by Rule 12(b) (1), (3) or (6) motions. Claire M. Specht, 12(b) 829, 833, citing Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. What? Slater and Enforcing Forum Selection Clauses Through Dismissal, 53 839, 843, 91 L.Ed. 1055 (1947), and St. Louis-San Francisco Ry. Co. v. B.C. L. Rev. E-Supplement 111, 117-118 (2012) (stating in 2012 that Superior Court, 1954 OK 223, ¶ 23, 276 P.2d 773, 778. “Currently, the Second Circuit enforces forum selection clauses After Gulf Oil, Congress enacted § 1404(a) to permit a change of through Rule 12(b)(1), 12(b)(3), and 12(b)(6).”). venue between federal courts and these courts “were given more dis- 19. Maxwell J. Wright, Note, Enforcing Forum-Selection Clauses: cretion to transfer under § 1404(a) than they had to dismiss on grounds An Examination of the Current Disarray of Federal Forum-Selection of forum non conveniens.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, Clause Jurisprudence and a Proposal for Judicial Reform, 44 Loy. L.A. 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). L. Rev. 1625, 1639-1642 (2011); Claire M. Specht, 12(b) What? Slater and 32. After our opinion in Conoco, Inc. v. Agrico Chemical Co., supra, Enforcing Forum Selection Clauses Through Dismissal, 53 B.C. L. Rev. our Legislature provided authority for a stay, transfer, or dismissal E-Supplement 111, 115-118 (2012). based upon forum non conveniens, now codified at 12 O.S. § 140.3. 20. Matthew J. Sorensen, Enforcement of Forum-Selection Clauses in Application of that statute is not before us in this controversy. Federal Court After Atlantic Marine, 82 Fordham L. Rev. 2521, 2549 33. Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, (2014), citing Atlantic Marine Construction Co. v. United States District 581,n.6, citing Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 Court for the Western District of Texas, 134 S.Ct. 568, at n.4, 580. L.Ed. 789 (1955). In Atlantic Marine Construction Co., supra, the Court also noted that 34. Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, at ¶ 11, 115 P.3d if the issue is proper for a 12(b)(6) motion then the dispute “may lead at 833 (“The forum non conveniens criteria consider private and public to a jury trial on venue if issues of material fact relating to the validity interests.”). of the forum-selection clause arise” 134 S.Ct. 568, at n.4, 580. 35. Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, 581 21. Current § 140.3 of Title 12 is derived from Laws 2013, 1st Ex. (internal quotation marks deleted). Sess., c. 1 § 2 (eff. Sept.10, 2013, pursuant to § 3), and provides: 36. Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, ¶ 11, 115 P.3d at A. If the court, upon motion by a party or on the court’s own 833, citing Gulf Oil Corporation v. Gilbert, 330 U.S. at 508. motion, finds that, in the interest of justice and for the convenience of 37. Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, 581. the parties, an action would be more properly heard in another forum 38. Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, either in this state or outside this state, the court shall decline to exer- 581-582. cise jurisdiction under the doctrine of forum non conveniens and shall 39. See, e.g., Kelly A. Blair, A Judicial Solution to the Forum-Selection stay, transfer or dismiss the action. Clause Enforcement Circuit Split: Giving Erie a Second Chance, 46 Ga. L. B. In determining whether to grant a motion to stay, transfer or Rev. 799, 830 (2012), quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, dismiss an action pursuant to this section, the court shall consider: 519 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974) (“ . . . the Court found that an 1. Whether an alternate forum exists in which the action may be arbitration agreement contained within a larger contract is actually “a tried; specialized kind of forum-selection clause that posits not only the situs 2. Whether the alternate forum provides an adequate remedy; of suit but also the procedure to be used in resolving the dispute.”). 3. Whether maintenance of the action in the court in which the case 40. See, e.g., Intercall Telecommunications, Inc. v. Instant Impact, Inc., is filed would work a substantial injustice to the moving party; 376 F.Supp.2d 155 (D.P.R.2005) (“Courts must distinguish between 4. Whether the alternate forum can exercise jurisdiction over all the challenges to the validity of the underlying contract on the one hand, defendants properly joined in the action of the plaintiff; and to the validity of the forum selection clause in particular, on the 5. Whether the balance of the private interests of the parties and other. Under the purview of this separability doctrine, a forum selec- the public interest of the state predominate in favor of the action being tion clause is deemed to be separate from, and independent of, the brought in an alternate forum; and contract containing it.”) 6. Whether the stay, transfer or dismissal would prevent unreason- 41. Greater Oklahoma City Amusements, Inc. v. Moyer, 1970 OK 213, able duplication or proliferation of litigation. 477 P.2d 73, 75 (quoting a legal encyclopedia). 22. Current 12 O.S. §140.3 was previously codified at 12 O.S.2011 § 42. Greater Oklahoma City Amusements, Inc. v. Moyer, 1970 OK 213, 140.2. The dismissal in the trial court was filed on June 18, 2012. In 477 P.2d at 75-76. Douglas v. Cox Ret. Props., Inc., 2013 OK 37, 302 P.3d 789) (No. 110,270, 43. In Preston v. Ferrer, 552 U.S. 346, 349, 128 S.Ct. 978, 169 L.Ed.2d Court’s decision June 4, 2013), mandate was issued July 1, 2013, and 917 (2008), the Court stated that “when parties agree to arbitrate all the Court held unconstitutional several statutes, one of which was § disputes arising under their contract, questions concerning the validity 140.2. We expressly decline to address whether a motion seeking relief of the entire contract are to be resolved by the arbitrator in the first pursuant to § 140.3 is similar to a motion seeking relief pursuant to the instance, . . . .” and this is “distinct from attacks on the validity of the judicial doctrine of forum non conveniens or whether the § 140.3 motion arbitration clause itself . . . .” Nitro-Lift Technologies, L.L.C. v. Howard,133 is a 12 O.S. § 2012(B) motion. U.S. 500, 133 S.Ct. 500, 503, 184 L.Ed.2d 328 (2012). See also Rent-A- 23. Federal Deposit Ins. Corp. v. Tidwell, 1991 OK 119, 820 P.2d 1338, Center, West, Inc. v. Jackson, 561 U.S. 63, 70, 130 S.Ct. 2772, 177 L.Ed.2d 1341 (an adjudication of a plaintiff’s cause of action must also adjudi- 403 (2010) (noting two types of “validity challenges,” one on the valid- cate all defenses and interrelated counterclaims to that particular cause ity of an agreement to arbitrate and one challenging the contract as a of action that were properly raised by the defendant). whole). 24. Coulter v. First American Resources, L.L.C., 2009 OK 53, 214 P.3d 44. State ex rel. Wright v. Oklahoma Corp. Comm’n, 2007 OK 73, ¶ 48, 807. 170 P.3d 1024, 1039. 25. Smith v. City of Stillwater, 2014 OK 42, § 13, 328 P.3d 1192, 1197- 45. 12 O.S.2011 § 2010(C): “ A copy of any written instrument 1198 (“Where not all claims appear to be frivolous on their face or with- which is an exhibit to a pleading is a part thereof for all purposes.” out merit, dismissals for failure to state a claim upon which relief may be 46. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 4, n. 10, granted are premature.”). See also Moneypenney v. Dawson, 2006 OK 53, ¶ 958 P.2d 128, 136. 2, 141 P.3d 549, 551 (a motion to dismiss pursuant to § 2012 raising affir- 47. 15 O.S.2011 § 2: “It is essential to the existence of a contract that mative defense of statute of limitations should not be granted unless the there should be: 1. Parties capable of contracting. 2. Their consent. 3. A face of the petition shows that the action time-barred). lawful object; and, 4. Sufficient cause or consideration.” 26. State ex rel. Bd. of Regents of University of Oklahoma v. Lucas, 2013 48. Sides v. John Cordes, Inc., 1999 OK 36, ¶ 14, 981 P.2d 301, 306 (“A OK 14, nn.9 -10, 297 P.3d 378, 384 (explaining that a motion to dismiss prima facie case is made out by that quantum of proof which, if unex-

40 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 plained or uncontradicted, is sufficient to establish a given fact and to would not constitute a final order within the terms of the statute and uphold a judgment in favor of the issue which it supports, but which would not be an appealable order.”). may be refuted by other evidence.”); Beville v. Curry, 2001 OK 1, ¶ 1, 39 62. 12 O.S.2011 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.36 states in part: P.3d 754 (trial court’s order granting defendants’ motion for summary “The Rule 1.36 accelerated procedure will govern appeals from: 1. judgment was affirmed on appeal because plaintiff failed to refute summary judgments in cases in which the motions were filed under defendants’ prima facie showing that they were entitled to judgment). District Court Rule 13 after October 1, 1993; and 2. final orders in cases 49. Cf. Gomes v. Hameed, 2008 OK 3, ¶ 18, 184 P.3d 479, 485 (gener- in which motions to dismiss for failure to state a claim or lack of juris- ally, the question of whether the minds of parties ever met in complete diction (of a person or subject matter) under District Court Rule 4 were agreement is a question of fact for the finder of fact). filed after October 1, 1993.” 50. Kordis v. Kordis, 2001 OK 9, ¶ 13, 37 P.3d 866, 871 (“... the right 63. Brooks v. Baltz, 2000 OK 73, ¶ 6, 12 P.3d 467, 469 (“Fundamental to a hearing on a motion for summary judgment is governed by Rule fairness cannot be afforded except within a framework of orderly pro- 13 and not Rule 4(h)”). See Rule 13, 12 O.S.2011, Ch. 2, App.1. (amend- cedure, and that fairness includes giving notice of certain judicial ed by In re Amendments to Oklahoma Supreme Court Rules, 2013 OK 68, events altering legally cognizable rights.” ). June 14, 2013; eff. August 1, 2013) (amending both the Uniform Rules 64. See, e.g., Wood v. Mercedes-Benz of Oklahoma City, 2014 OK 68, ¶ 4, for District Courts, 2013 WL 3289131, and the Oklahoma Supreme 336 P.3d 457, 459 (When examining an order sustaining summary judg- Court Rules, 2013 WL 3729211). ment, this Court determines whether the record reveals disputed mate- 51. The judgment granting dismissal states that “The Court further rial facts; and even when basic facts are undisputed, whether motions finds that enforcement of the mandatory forum selection provision for summary judgment should be denied, if from the evidence, reason- would not be unfair or unreasonable under the circumstances.” Jour- able persons might reach different inferences or conclusions.) nal Entry of Judgment, at p.2. 52. Tulsa Indus. Authority v. City of Tulsa, 2014 OK 81, ¶ 13, 336 P.3d 2014 OK 113 1016, 1019 (“This Court, as an appellate tribunal, does not make first- instance rulings.”). State of Oklahoma ex rel. Oklahoma Bar 53. Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, 861 P.2d 295, n. 6, 298-299 (“If rules of procedure work as they should in an honest and Association, Petitioner, v. Richard M. fair judicial system, they not only permit, but should as nearly as pos- Wintory, Respondent. sible guarantee that bona fide complaints be carried to an adjudication on the merits.”). SCBD 6119. December 16, 2014 54. Title 15, Section 211 of the Oklahoma Statutes makes unlawful, and thus unenforceable, contracts which are (1) “[c]ontrary to an express provision of law;” (2) “[c]ontrary to the policy of express law, ORIGINAL PROCEEDING FOR though not expressly prohibited; or” (3) “[o]therwise contrary to good ATTORNEY DISCIPLINE morals.” See Hamilton v. Cash, 1939 OK 255, 91 P.2d 80, 81 (a contract will not be enforced when contrary to the public policy of the State). ¶0 Complainant, Oklahoma Bar Association 55. Groendyke Transport, Inc.v. Cook, 1979 OK 59, 594 P.2d 369, 372. 56. Atlantic Marine Construction Co., ___ U.S. ___ , 134 S.Ct. 568, 582. (Bar Association) brought a disciplinary pro- 57. Norris v. Van Hendel, 1945 OK 249, 63 P.2d 217, 220. See also In re ceeding pursuant to Rule 7.7, Rules Governing Kaufman, 2001 OK 88, ¶ 18, 37 P.3d 845, 854; (Our power to void a contract as being in contravention of public policy is delicate and Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, undefined. We exercise it only in cases free from doubt.); Horn v. Gib- App. 1-A, following notification that the son, 1909 OK 174, ¶ 0, 103 P. 563, 563 (Syllabus by the Court) (The party respondent, Richard M. Wintory (attorney/ seeking to void a contract bears the burden of proving that the contract violates public policy.). Wintory), had been suspended in Arizona for 58. We decline to address whether Tucker’s allegations of fact are ninety (90) days and ordered to pay costs. The sufficient to put at issue his consent to the forum-selection clause. The issue appears to have been raised by Defendant in its reply to Tucker’s agreed discipline imposed arose from Winto- response when it cited Allis Chalmers Mfg. Co. v. Byers, 1939 OK 115, 88 ry’s communication, as a prosecutorial officer, P.2d 368, for the proposition that one who executes a contract is presumed to have understood its contents. However, because we remand with a confidential intermediary for the the proceeding we need not address whether any law or facts are a defense in a murder trial and his lack of can- required predicate to apply Allis in a controversy, or its exceptions, or other principles of contract law on this issue. dor concerning the extent, content, and tenor 59. First Nat’l Bank in Durant v. Honey Creek Entertainment Corp., of those discussions. The attorney did not 2002 OK 11, ¶ 12, 54 P.3d 100, 104 (“Fraud vitiates everything it notify timely the General Counsel of the disci- touches, and a contract obtained thereby is voidable. And evidence is always admissible to show that contracts have been fraudulently pline imposed. Although the attorney was obtained.”) Cf. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, n.7, 108 given notice of the instant proceedings, Win- S.Ct. 2239, 101 L.Ed.2d 22 (1988) (federal courts sitting in admiralty generally should enforce forum-selection clauses absent a showing tory has not responded or challenged the that to do so would be unreasonable and unjust, or that the clause was imposition of discipline by this Court. There- invalid for such reasons as fraud or overreaching). In Scherk v. Alberto-Culver Co., 417 U.S. 506, n. 14, 519, 94 S.Ct. 2449, fore, pursuant to Rule 7, the documents pro- 41 L.Ed.2d 270 (1974), the Court distinguished between fraud relating to vided by the Arizona Court constitute the a contract as a whole and fraud relating to a forum-selection clause: “...a charge and prima facie evidence that the attor- forum-selection clause in a contract is not enforceable if the inclusion of that clause in the contract was the product of fraud or coercion.” ney committed the acts described therein. The 60. Rogers v. Dell Computer Corp., 2005 OK 51, ¶ 31, 138 P.3d 826, 833. uncontroverted evidence demonstrates that 61. St. Louis-San Francisco Ry. Co. v. Superior Court of Creek County, 290 P.2d 118, 120 (“It is apparent that if a trial court should sustain a motion the respondent: on multiple occasions had to dismiss on the grounds of forum non conveniens and dismiss the contact with an individual recommended as action, the plaintiff could appeal therefrom and thus obtain a review of the trial court’s action, since such order on the part of the trial court an aide to the defense in a capital murder case; would constitute a final order as defined by 12 O.S.1951 § 953.”). misled the defense, his supervisor, his co- The Court has stated that it may exercise original jurisdiction to review an order denying a motion to dismiss based upon the judicial counsel, and the trial court concerning the doctrine of forum non conveniens because the defendant has no ade- extent of his contact with the individual; “conve- quate remedy at law by which to obtain review because such an order niently” remembered there had been a witness does not constitute a final order and is not appealable as a matter of right. Groendyke Transport, Inc. v. Cook, 1979 OK 59, 594 P.2d 369, 372. See to the one reported conversation only after affi- also St. Louis-San Francisco Ry. Co., 290 P.2d at 118, 120 (“... an order over- davits were filed with the trial court which did ruling a motion to dismiss on the grounds of forum non conveniens

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 41 not mention this development; and did not respondent, an Assistant Attorney General, timely report the discipline imposed in the recip- was acting as prosecutor. The trial judge rocal jurisdiction to this Court. Upon de novo ordered the appointment of a confidential review, we hold that, under the facts presented intermediary for the purpose of uncovering along with discipline imposed for similar acts evidence that might serve as mitigation of any both in Oklahoma and in other jurisdictions, the sentence imposed. Following a disagreement attorney’s misconduct warrants a suspension of between the confidential intermediary and the two years and one day from the practice of law defense attorney, the intermediary contacted in the State of Oklahoma. Wintory. After becoming aware of what even- RESPONDENT SUSPENDED FOR TWO tually revealed multiple conversations between YEARS AND ONE DAY FROM THE Wintory and the confidential intermediary, the EFFECTIVE DATE OF THIS OPINION. defense filed a motion to recuse both Wintory, an Assistant Attorney General, and the Attor- WATT, J.: ney General’s Office from prosecuting the case. ¶1 The attorney is before this Court for disci- ¶5 Wintory was not candid with his co-coun- plinary proceedings arising under Rule 7.2, sel in the Attorney General’s Office charged Rules Governing Disciplinary Proceedings, 5 with responding to the motion to recuse. O.S. 2011, Ch. 1, App. 1-A governing imposi- Believing that the only pertinent issue should tion of reciprocal discipline for professional be whether any confidential information was misconduct occurring in another state.1 The exchanged, the respondent led his co-counsel State Bar of Arizona and Wintory entered an to believe that only one conversation had taken agreement for discipline by consent by which place when there had been multiple conversa- the attorney was suspended from the practice tions, some of which were of considerable of law for ninety (90) days and ordered to pay length, i.e. approximately twenty (20) minutes. the costs of the proceeding. ¶6 Initially, Wintory did not recall that there ¶2 There is no question that the attorney mis- had been a witness to the first telephone con- led the defense, his co-counsel, his supervisor versation. On September 22, 2011, a joint in the Arizona Attorney General’s Office, and response was filed with the trial court, signed the trial court when he failed to reveal multiple by Wintory and his co-counsel, providing that conversations with a confidential intermediary only one conversation had taken place. The appointed for the purpose of aiding defense next day, Wintory met with his supervisor. counsel in uncovering evidence of mitigation. Wintory prepared and signed an affidavit in Those representations were not merely oral but which he did not mention that there had been extended to the filing of false and misleading multiple conversations with the confidential affidavits in the trial court and causing his intermediary. supervisor and co-worker to do the same with the end result being the filing of a motion to ¶7 On October 3, 2011, Wintory “recalled” disqualify the Attorney General’s office in its that there actually had been a witness, his para- entirety from participating in the capital mur- legal, to the one conversation he revealed to the der prosecution. Finally, Wintory did not time- trial court and to his colleagues. This resulted ly notify the Bar Association of the discipline in the paralegal, the alleged witness, preparing imposed by the Arizona Supreme Court. an affidavit averring to the same. Evidently, the

2 paralegal believed that she witnessed the con- ¶3 Upon de novo review, we determine that versation because Wintory specifically asked the respondent’s misconduct warrants a sus- that she do so. pension of two years and one day from the practice of law in the State of Oklahoma. In ¶8 Wintory was removed from the criminal considering the appropriate discipline, this case by his supervisor after the supervisor and Court considers the facts presented along with the co-counsel realized it was necessary for discipline imposed for similar acts3 both in them to advise the trial court that their fact pre- Oklahoma and in other jurisdictions. sentations had not been accurate because of inadequate disclosures from the respondent. UNCONTROVERTED FACTS AND This resulted in a joint affidavit being filed by PROCEDURE the supervisor and the co-counsel with the trial ¶4 The facts surrounding the Arizona disci- court, in which they averred that Wintory did pline arose from a murder trial in which the not discuss having a witness to the single con-

42 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 versation revealed at any time prior to executing ¶13 We review the evidence de novo11 to deter- the affidavit. Wintory did eventually provide the mine if the allegations of misconduct are estab- trial court with details of a second conversation lished by clear and convincing evidence.12 In a but did not inform his superiors, colleagues, or reciprocal disciplinary proceeding, it is within the trial court of his two longest phone conversa- this Court’s discretion to impose the same dis- tions with the confidential intermediary. cipline as that in the other jurisdiction or one of greater or lesser severity.13 ¶9 The Attorney General’s Office withdrew the allegation of capital murder. In January of ¶14 THE UNCONTROVERTED EVIDENCE 2013, the defendant pled guilty to second IS THAT THE ATTORNEY: ON MULTIPLE degree murder. The trial court accepted the OCCASIONS HAD CONTACT WITH AN plea specifically referencing “the apparent mis- INDIVIDUAL RECOMMENDED AS AN conduct allegedly engaged in by the prior AIDE TO THE DEFENSE IN A MURDER prosecutor in this matter.”4 The sentence was TRIAL WHERE THE DEATH PENALTY mitigated to eleven years in the penitentiary. WAS SOUGHT; MISLED THE DEFENSE, HIS SUPERVISOR, HIS CO-COUNSEL, ¶10 Wintory has not responsed to the notice AND THE TRIAL COURT CONCERNING that this matter was filed with the Office of the THE EXTENT OF HIS CONTACT WITH Chief Justice. The cause was assigned to these THE INDIVIDUAL; “CONVENIENTLY” chambers on November 13, 2014. REMEMBERED THERE HAD BEEN A JURISDICTION AND STANDARD OF WITNESS TO THE ONE REPORTED REVIEW CONVERSATION ONLY AFTER AFFIDAVITS WERE FILED WITH THE ¶11 Reciprocal discipline is controlled by TRIAL COURT WHICH DID NOT Rule 7.7 of the Rules Governing Disciplinary 5 MENTION THIS DEVELOPMENT; AND Proceedings. It directs the General Counsel for DID NOT TIMELY REPORT THE the Bar Association to submit to this Court a DISCIPLINE IMPOSED IN THE certified copy of a lawyer’s adjudication of mis- RECIPROCAL JURISDICTION TO THIS conduct in the highest court of another state or COURT. THESE ACTIONS SUPPORT THE federal court. The certified copy of the adjudica- IMPOSITION OF A TWO-YEAR tion constitutes the charge against the lawyer in SUSPENSION FROM THE PRACTICE OF this Court and is prima facie evidence that the LAW IN OKLAHOMA. lawyer committed the acts of misconduct. ¶15 It is unquestioned that Wintory had mul- ¶12 We stress that it is this Court’s nondelega- tiple conversations with an individual appoint- ble, constitutional responsibility to regulate both ed by the trial court for the purpose of aiding the practice and the ethics, licensure, and disci- the defense in uncovering mitigating evidence pline of the practitioners of the law. The duty is which might be appropriate for consideration vested solely in this department of government.6 if the defendant was convicted. Those actions, Discipline is administered to preserve public in and of themselves, are questionable. Further, confidence in the bar. Our responsibility is not to the respondent misled the defense, the trial punish but to inquire into and gauge a lawyer’s court, his co-counsel, and supervisor as to continued fitness to practice law, with a view to whether there was a witness to the one conver- safeguarding the interest of the public, of the sation he admitted having and concerning the courts, and of the legal profession. Discipline is number of conversations actually occurring. imposed to maintain these goals rather than as His misrepresentations led to the filing of false punishment for the lawyer’s misconduct.7 Disci- affidavits with the trial court. We must now plinary action is also administered to deter the determine what discipline is appropriate for attorney from similar future conduct and to act Wintory’s actions. as a restraining vehicle on others who might consider committing similar acts.8 Discipline is ¶16 In State of Oklahoma ex rel. Oklahoma fashioned to coincide with the discipline im- Bar Ass’n v. Moss, 1983 OK 104, 682 P.2d 205, posed upon other lawyers for similar acts of this Court imposed the extreme sanction of professional misconduct.9 Although this Court disbarment on an attorney for submitting a strives to be evenhanded and fair in disciplinary false affidavit to the Bar Association knowing matters, discipline must be decided on a case- of its falsity. Moss attempted to avoid disci- by-case basis because each situation involves pline by paying money to a complaining client unique transgressions and mitigating factors.10 in exchange for the execution of a false affida-

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 43 vit intended to exonerate him in a disciplinary appropriate for Wintory’s actions in the Arizo- proceeding. na criminal proceeding. ¶17 We addressed the appropriate discipline CONCLUSION to be imposed in State ex rel. Oklahoma Bar Ass’n v. Askins, 1993 OK 78, 882 P.2d 1054 for ¶21 The respondent is a seasoned prosecutor. an attorney having prepared and filed false Not only does he serve in the Attorney Gener- documents in an attempt to aide the defense of al’s Office in the State of Arizona, Wintory had his client. In that case, this Court found the a long-stint of service under Oklahoma Coun- appropriate discipline to be a two-year suspen- ty’s District Attorney, Bob Macy. He teaches sion from the practice of law. In so doing, we seminars on the duties of prosecutors, defense considered discipline imposed in other Okla- counsel, law enforcement, and judges on issues 18 homa causes where misrepresentation and related to constitutional law. There simply is presentation of false statements to a court were no excuse for the respondent’s failure to be at issue. In those cases, discipline ranged from completely honest in regard to his conversa- suspensions of thirty (30) days to disbarment.14 tions with the confidential intermediary in the underlying criminal proceeding. His actions in ¶18 Most recently, the majority of this Court this matter compromised the ability of the Ari- determined that there had been no active or zona Attorney General’s Office to prosecute an intentional deceit by a prosecuting attorney in alleged murderer. not revealing discussions between herself and a defense witness. However, there is absolutely ¶22 The respondent, Richard M. Wintory, is nothing in the documents submitted in this suspended from the practice of law in Okla- cause to indicate that Wintory was presented homa for two (2) years and one day. Such sus- with the same pressures as was the respondent pensions are tantamount to disbarment in that in State ex rel. Oklahoma Bar Ass’n v. Layton, the suspended lawyer must follow the same 2014 OK 21, 324 P.3d 1244. In that case, the con- procedures for readmittance as would a dis- versation took place within the chaos of a vic- barred attorney.19 No costs having been request- tim-witness center, the trial was very conten- ed by the Bar Association, no reimbursement is tious and intense, the prosecutor was being imposed. verbally attacked by defense counsel in open RESPONDENT SUSPENDED FOR TWO court, and the defense counsel’s staff was dis- YEARS AND ONE DAY FROM THE paraging to the alleged victim. Here, Wintory’s EFFECTIVE DATE OF THIS OPINION. conversations with the confidential intermediary took place in the privacy of his office or in REIF, V.C.J., KAUGER, WATT, WINCHESTER, the comfort of his vehicle. COMBS, JJ. - CONCUR ¶19 Discipline for actions similar to those of TAYLOR, J. - DISSENT Wintory in this cause have received a wide range of discipline in other jurisdictions. Our “I would disbar the Respondent.” sister courts have found that public censures COLBERT, C.J., EDMONDSON, GURICH, JJ. - were appropriate in some causes, moderate NOT PARTICIPATING and lengthy suspensions in others, and the death knell of disbarment in the most serious WATT, J.: 15 causes. 1. Rule 7.7, Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A providing in pertinent part: ¶20 In determining the appropriate disci- “(a) It is the duty of a lawyer licensed in Oklahoma to notify the pline to be imposed by this Court, we must General Counsel whenever discipline for lawyer misconduct has also keep in mind that Wintory did not timely been imposed upon him/her in another jurisdiction, within twenty (20) days of the final order of discipline, and failure to provide notice of the discipline imposed by the report shall itself be grounds for discipline. Arizona court16 nor did he respond to notice of (b) When a lawyer has been adjudged guilty of misconduct in a disciplinary proceeding, except contempt proceedings, by the the filing of this matter for reciprocal disci- highest court of another State or by a Federal Court, the General pline. Failure to provide the Bar Association Counsel of the Oklahoma Bar Association may cause to be trans- with the proper notice may, in and of itself, mitted to the Chief Justice a certified copy of such adjudication and the Chief Justice shall direct the lawyer to appear before the 17 warrant imposition of discipline. Therefore, Supreme Court at a time certain, not less than ten (10) days after our de novo review of the matters presented, mailing of notice, and show cause, if any he/she has, why he/ she should not be disciplined. The documents shall constitute the leads us to conclude that a two-year suspen- charge and shall be prima facie evidence the lawyer committed sion from the practice of law in Oklahoma is the acts therein described. . . .”

44 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 2. State ex rel. Oklahoma Bar Ass’n v. Kleinsmith, see note 17, infra; for forging documents or submitting false affidavits.]; Matter of Olsen, State ex rel. Oklahoma Bar Ass’n v. Wagnon, 2004 OK 78, ¶2, 104 P.3d 180 Ariz. 5, 881 P.2d 337 (1994) [Disbarment imposed for submitting 571; State ex rel. Oklahoma Bar Ass’n v. Patterson, see note 9, infra. false affidavits.]; In re Karpin, 162 Vt. 163, 647 A.2d 700 (1993) [Attor- 3. State ex rel. Oklahoma Bar Ass’n v. Patterson, see note 9, infra; ney disbarred for submitting false affadivit in effort to shift blame to State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK 106, ¶0, 914 P.2d others while taking a case with considerable conflicts.]; Florida Bar v. 644; State ex rel. Oklahoma Bar Ass’n v. Bolton, 1994 OK 53, ¶16, 880 Kleinfeld, 648 So.2d 698 (Fla. 1994) [Imposing 3-year suspension for P.2d 339. making false statement in affidavit seeking disqualification of judge.]; 4. Agreement for Discipline By Consent, PDJ-2013-9089, ¶41 at p 11. Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La. 1992) [Attor- 5. Rule 7.7, Rules Governing Disciplinary Proceedings, see note 1, ney’s executing false affidavit warrants 18-month suspension.]; In re supra. Hawkins, 305 Or. 319, 751 P.2d 780 (1988) [Two-year suspension for 6. State ex rel. Oklahoma Bar Ass’n v. Farrant, 1994 OK 13, 867 P.2d preparing and filing false documents with court, using false evidence, 1279; Tweedy v. Oklahoma Bar Ass’n, 1981 OK 12, ¶4, 624 P.2d 1049. and filing false affidavit.]; Matter of Reiss, 101 N.J. 475, 502 A.2d 560 7. State ex rel. Oklahoma Bar Ass’n v. Phillips, 2002 OK 86, ¶21, 60 (1986) [Self-serving actions in business venture and filing a false affida- P.3d 1030; State ex rel. Oklahoma Bar Ass’n v. Bedford, see note 8, infra; vit with the court resulted in a one-year suspension.]. See, especially, State ex rel. Oklahoma Bar Ass’n v. English, 1993 OK 68, ¶12, 853 P.2d Chicago Bar Ass’n v. Martin, 288 Ill. 615, 124 N.E. 340, 14 A.L.R. 854 173; State ex rel. Oklahoma Bar Ass’n v. Raskin, 1982 OK 39, ¶17, 642 P.2d 262. (1919) [Attorney disbarred for having knowingly made a false affida- 8. State ex rel. Oklahoma Bar Ass’n v. Bedford, 1997 ok 83, ¶18, 956 vit.] This case was cited as instructive in State ex rel. Oklahoma Bar P.2d 148; State ex rel. Oklahoma Bar Ass’n v. Badger, 1995 OK 113, ¶13, Ass’n v. O’Bryan, 1963 OK 151, 385 P.2d 876, appeal dismissed, cert. 912 P.2d 312; State ex rel. Oklahoma Bar Ass’n v. Hall, 1977 OK 117, ¶12, denied, 376 U.S. 649, 84 S.Ct. 983, 11 L.Ed.2d 980 (1964), in which this 567 P.2d 975. Court disbarred the attorney for dishonest behavior. 9. State ex rel. Oklahoma Bar Ass’n v. Patterson, 2001 OK 51, ¶29, 16. Rule 7.7(a), Rules Governing Disciplinary Proceedings, see note 28 P.3d 551; State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK 106, ¶0, 1, supra, required Wintory to notify the Bar Association of his disci- 914 P.2d 644; State ex rel. Oklahoma Bar Ass’n v. Bolton, 1994 OK 53, pline in Mexico within twenty (20) days of entry of the final order of ¶16, 880 P.2d 339. discipline. The Final Judgment and Order for discipline was entered 10. State ex rel. Oklahoma Bar Ass’n v. Doris, 1999 OK 94, ¶38, 991 on February 28, 2014. The Amended Final Judgment and Order was P.2d 1015; State ex rel. Oklahoma Bar Ass’n v. Rozin, 1991 OK 132, ¶10, entered on March 5, 2014. Giving the attorney every benefit of the 824 P.2d 1127. doubt, notice from Wintory was due in the Bar Association’s Office, at 11. State ex rel. Oklahoma Bar Ass’n v. Garrett, 2005 OK 91, ¶3, 127 the latest, on March 25th. No notification was given until March 31st. P.3d 600; State ex rel. Oklahoma Bar Ass’n v. Anderson, 2005 OK 9, ¶15, 17. State ex rel. Oklahoma Bar Ass’n v. Kleinsmith, see note 13, 109 P.3d 326; State ex rel. Oklahoma Bar Ass’n v. Hummel, 2004 OK 30, supra; State of Oklahoma ex rel. Oklahoma Bar Ass’n v. Patterson, see ¶16, 89 P.3d 1105. note 9, supra. 12. State ex rel. Oklahoma Bar Ass’n v. Funk, 2005 OK 26, ¶3, 114 18. Agreement for Discipline by Consent, PDJ-2013-9089, at p. 17. P.3d 427; State ex rel. Oklahoma Bar Ass’n v. Kessler, 1995 OK 32, ¶23, 19. State ex rel. Oklahoma Bar Ass’n v. Townsend, 2012 OK 44, ¶32, 895 P.2d 713; State ex rel. Oklahoma Bar Ass’n v. Downing, 1993 OK 44, 277 P.3d 1269. ¶15, 863 P.2d 1111. 13. State ex rel. Oklahoma Bar Ass’n v. Kleinsmith, 2013 OK 16, ¶4, 297 P.3d 1248; State ex rel. Oklahoma Bar Ass’n v. Patterson, see note 9, 2014 OK 114 supra. 14. State ex rel. Oklahoma Bar Ass’n v. Herlihy, 1991 OK 123, 827 IN RE: PROPOSED NEW RULE P.2d 164 [Disbarment.]; State ex rel. Oklahoma Bar Ass’n v. Downing, GRANTING SPECIAL TEMPORARY see note 12, supra [Four-year suspension.]; State ex rel. Oklahoma Bar Ass’n v. Hall, see note 8, supra [Suspended for one year.]; State ex rel. PERMIT TO CURRENT MILITARY Oklahoma Bar Ass’n v. Stubblefield, 1988 OK 141, 766 P.2d 979; State ex SPOUSE PURSUANT TO RULE TWO AND rel. Oklahoma Bar Ass’n v. Moore, 1987 OK 21, 741 P.2d 445 [Disbar- ment.]; State ex rel. Oklahoma Bar Ass’n v. Hensley, 1983 OK 32, 661 PROPOSED AMENDMENT TO RULE P.2d 527 [Disbarment.]; State ex rel. Oklahoma Bar Ass’n v. Peveto, 1980 SEVEN, SECTION (F) OK 182, 620 P.2d 392 [One-year suspension.]. 15. Matter of Colvin, 336 P.3d 823 (Kan. 2014), 2014 WL 5304963 SCBD 6167. December 15, 2014 [Filing frivolous appearance and failing to correct false statement in affidavit warranted 45-day suspension]; Board of Professional Respon- As Corrected December 19, 2014 sibility, Wyoming State Bar v. Richard, 2014 WY 98, 335 P.3d 1036 [Multiple count disciplinary proceeding including false assertions in ORDER GRANTING AMENDMENT TO attorney-affidavit warranted 3-year suspension.]; Attorney Grievance RULE TWO AND RULE SEVEN OF THE Comm’n of Maryland v. Sperling, 432 Md. 471, 69 A.3d 478 (2013) [Affidavit submitted by attorney containing false statements along RULES GOVERNING ADMISSION TO with other misconduct warranted indefinite suspension from the prac- THE PRACTICE OF LAW IN THE STATE tice of law.]; Matter of Chavez, 2013 NMSC 008, 299 P.3d 403 [Failing to correct statements known to be false in an affidavit and to represent OF OKLAHOMA clients competently warranted suspension from the practice of law for one year.]; Disciplinary Action against Ulanowski, 800 N.W.2d 785 ¶1 This matter comes before this Court upon (Minn. 2011) [Indefinite suspension from practice of law with no right to petition for reinstatement for minimum of one year appropriate an Application to Amend Rule Two and Rule sanction for filing false affidavits in district court.]; Iowa Supreme Seven of the Rules Governing Admission to the Court Disciplinary Board v. Bowles, 794 N.W.2d 1 (Iowa 2011) [ Know- ingly facilitating preparation of false affidavit and then relying on Practice of Law in the State of Oklahoma, 5 same warranted 18-month suspension.]; Disciplinary Action against O.S. Supp. 2014, Ch. 1, App. 5, to add new sec- Garcia, 792 N.W.2d 434 (Minn. 2010) [Attorney committing multiple tion 7 of Rule Two and new section (f) of Rule acts of misconduct, including coercing a client to sign a false affidavit warranted disbarment.]; Matter of Sniadecki, 924 N.E.2d 109 (Ind. Seven as proposed and set out in its entirety in 2010) (Ind. 2010) [Multiple shortcomings in application for reinstate- Exhibits “A” and “B,” attached hereto. ment, including filing of a false compliance affidavit with the Supreme Court warranted disbarment.]; Lawyer Disciplinary Board v. Smoot, 228 W.Va. 1, 716 S.E.2d 491 (2010), cert. denied, ___ U.S. ___, 132 S.Ct. 94, ¶2 IT IS THEREFORE ORDERED, AD- 181 L.Ed.2d 23 (2011) [Attempt to deceive an administrative tribunal JUDGED, AND DECREED by this Court that resulted in one-year suspension.]; In re Budnick, 67 A.D.3d 99, 886 N.Y.S.2d 700 (2009) [Knowingly filing false instrument with county Section 7 of Rule Two and section (f) of Rule clerk warranted two-year suspension.]; Matter of Shaw, 427 Mass. 764, Seven, Rules Governing Admission to the Prac- 696 N.E.2d 126 (1998) [Two-year suspension imposed for knowingly testifying falsely and filing a false affidavit.]; Matter of Goffe, 209 tice of Law in the State of Oklahoma, 5 O.S. A.D.2d 124, 624 N.Y.S.2d 592 (1995) [Recognizing attorney disbarred Supp. 2014, Ch. 1, App. 5, are hereby added as

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 45 set out in its entirety in Exhibits “A” and “B” i. Take the oath of attorneys which is set attached hereto, effective January 1, 2015. forth in Rule One, Section 4, of the Rules Governing Admission to the Practice of DONE BY ORDER OF THE SUPREME COURT Law in the State of Oklahoma and file the IN CONFERENCE THIS 15TH DAY OF DE- same with the Clerk of the Supreme Court; CEMBER, 2014. j. Sign the Roll of Attorneys; provided, /s/ Tom Colbert however, that if the applicant is unable, by CHIEF JUSTICE reason of absence, to sign the Roll, appli- ALL JUSTICES CONCUR cant may grant the power of attorney to the Administrative Director of the Board of Bar Exhibit A Examiners to sign said Roll of Attorneys It is hereby proposed by the members of the for applicant; Board of Bar Examiners for the State of Okla- k. Submit evidence which is satisfactory to homa that Rule Two of the Rules Governing the Supreme Court of the State of Oklaho- Admission to the Practice of Law in the State of ma that the applicant is the current spouse Oklahoma be amended to add the following of a service member in the United States section: Uniformed Services. This provision shall Section 7. A person who is the current spouse not be construed to apply to former mili- of a service member in the United States Uni- tary spouses; and formed Services and who meets the following l. Submit evidence that the service member requirements may, upon motion, apply to the is on military orders within the State of Supreme Court for a Special Temporary Permit Oklahoma. to be admitted to the practice of law in the State of Oklahoma, without the requirement of tak- No applicant for admission without exami- ing an examination, if the applicant would nation under this section shall be admitted if otherwise be fully qualified to take the bar the applicant has taken and failed an Oklaho- examination in Oklahoma under the rules of ma bar examination within the last five years the Supreme Court. An applicant shall: without having later passed the examination. a. Apply under this rule upon forms pre- Upon termination of the military status of scribed by the Board of Bar Examiners; either the dependent or the service member; or, in the event of a military transfer outside the b. Be at least 18 years of age; State of Oklahoma, the right of such person to c. Hold a Juris Doctorate degree from an practice law in the State of Oklahoma shall ter- American Bar Association approved law minate unless such person shall have been school; admitted to practice law in the State of Okla- homa pursuant to some other rule. d. Be lawfully admitted to practice law in any other state, territory or commonwealth A person admitted under this section will not of the United States or in the District of incur an application fee pursuant to Rule Columbia; Seven (f) of these rules. e. Submit evidence of a passing score on Any person admitted under this section the Multistate Professional Responsibility must comply with the Rules Creating and Con- Examination; trolling the Oklahoma Bar Association as set forth in Title 5, Chapter 1, Appendix 1, Article f. Establish that the applicant is a member 2, Section 5. in good standing in all jurisdictions where the applicant was previously admitted; Any person admitted under this section will be subject to the provisions of Rule Ten of these g. Have good moral character, due respect rules. for the law, and fitness to practice law; Exhibit B h. Provide at his or her expense a background investigation to determine character It is hereby proposed by the members of the and fitness from the National Conference of Board of Bar Examiners for the State of Okla- Bar Examiners, pursuant to Rule Four, Sec- homa that RULE SEVEN, section (f) of the tion 2(e); Rules Governing Admission to the Practice of

46 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 Law in the State of Oklahoma be amended and JULY BAR EXAM the following sections renumbered to read: Application filed on or before: RULE SEVEN 1 February …...... … $300 Fees 1 March ……...... $350 non-refundable The following fees shall be 1 April …...... ….... $450 paid to the Board of Bar Examiners at the time of filing of the application: 2014 OK 115 (a) Registration: IN RE: PROPOSED RULE AMENDING THE RULES GOVERNING ADMISSION Regular ……….……. $125.00 TO THE PRACTICE OF LAW IN THE Nunc Pro Tunc ……. $500.00 STATE OF OKLAHOMA (b) By each applicant for admission upon SCBD 6193. December 15, 2014 motion: the sum of $1,500. ORDER (c) By each applicant for admission by exam- ¶1 The Court hereby adopts as set forth and ination under Rule Four, §1: attached hereto the amendment to the Rules FEBRUARY BAR EXAM Governing Admission to the Practice of Law in the State of Oklahoma, 5 O.S. Supp. 2014, Ch. 1, Application filed on or before: App. 5, by adding a new rule, Rule Fifteen, and 1 September …… $1,000 renumbering the previous Rule Fifteen as Rule Sixteen. 1 October ……..... $1,050 ¶2 IT IS THEREFORE ORDERED, AD- 1 November ….... $1,150 JUDGED, AND DECREED that the Rules Gov- JULY BAR EXAM erning Admission to the Practice of Law in the State of Oklahoma, 5 O.S. Supp. 2014, Ch. 1, Application filed on or before: App. 5, is amended by adding a new rule, Rule Fifteen, and renumbering the previous Rule 1 February …...… $1,000 Fifteen as Rule Sixteen. The amendment shall 1 March ……...... $1,050 be for official publication and published in three (3) consecutive issues of the Oklahoma 1 April …..…...... $1,150 Bar Journal and that it shall be effective Janu- (d) By each applicant for a Special Temporary ary 1, 2015. Permit under Rule Two, §5: the sum of $750. DONE BY THE ORDER OF THE SUPREME (e) By each applicant for a Special Temporary COURT THIS 15TH DAY OF DECEMBER, Permit under Rule Two, §6: the sum of $100. 2014. (f) For each applicant for a Special Tempo- /s/ Tom Colbert rary Permit under Rule Two, §7: there will CHIEF JUSTICE not be any fee charged to the applicant. ALL JUSTICES CONCUR (g) By each applicant for a Temporary Permit Rules Governing Admission to the Practice of Law under Rule Nine: $150. in the State of Oklahoma (h) By each applicant for admission by exam- Rule Fifteen ination other than those under subparagraph (c) hereof: (a) The Board of Bar Examiners and its members, employees and agents are immune from FEBRUARY BAR EXAM all civil liability for damages for conduct and Application filed on or before: communications occurring in the performance of and within the scope of their official duties 1 September …...… $300 relating to the examination, character and fitness qualification, and licensing of persons 1 October …....….... $350 seeking to be admitted to the practice of law or 1 November …...... $450 seeking to be registered as a law student.

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 47 (b) Records, statements of opinion and other 4) The attorney has established by clear and information regarding an applicant for admis- convincing evidence that he possesses the sion to the bar or for registration as a law stu- good moral character which would entitle dent communicated by any entity, including him to be reinstated to the Oklahoma Bar any person, firm or institution, without malice, Association. to the Board of Bar Examiners, or its members, IT IS THEREFORE ORDERED that the peti- employees or agents, are privileged and civil tion of Patrick Ryan Busby for reinstatement suits for damages predicated thereon may not be granted effective January 1, 2015. The costs be instituted. associated with these proceedings, in the Rule Sixteen amount of $1087.14 shall be paid prior to reinstatement. All rules or regulations governing the subject matter herein covered previously in effect are DONE BY ORDER OF THE SUPREME hereby cancelled, annulled, revoked, and here- COURT THE 15TH DAY OF DECEMBER, 2014. after to be of no force or effect. /s/ John F. Reif 2014 OK 116 VICE CHIEF JUSTICE In the Matter of the Reinstatement of ALL JUSTICES CONCUR. Patrick Ryan Busby to Membership in the 2014 OK 117 Oklahoma Bar Association and to the Roll of Attorneys. IN THE MATTER OF THE APPLICATION OF THE OKLAHOMA CAPITOL SCBD No. 6126. December 16, 2014 IMPROVEMENT AUTHORITY FOR ORDER APPROVAL OF $120 MILLION OKLAHOMA CAPITOL IMPROVEMENT The petitioner, Patrick Ryan Busby (Busby/ AUTHORITY STATE FACILITIES attorney) was stricken from the roll of attor- REVENUE BONDS, SERIES 2014 neys from the Oklahoma Bar Association on (SERIES 2014 BONDS) June 7, 2012, after he voluntarily resigned for non payment of dues. Petitioner moved to No. 113,303. December 15, 2014 Louisiana and is now licensed to practice law ORDER in Alabama and Louisiana. On October 15, 2014, he petitioned this Court for reinstatement Original jurisdiction is assumed. Pursuant to as a member of the Oklahoma Bar Association. 73 O.S. 2011 § 160, the Court finds the proposed bond issue, submitted by The Oklahoma Capi- On July 23, 2014, a hearing was held before tol Improvement Authority cannot reasonably the Trial Panel of the Professional Responsibil- be considered a special law, nor otherwise con- ity Tribunal and the tribunal recommended trary to law. Coyle v. Smith, 1911 OK 64, ¶22, 113 that the attorney be reinstated. Upon consider- P. 944. ation of the matter, we find: A petition for rehearing may be filed within 1) The attorney has met all the procedural five (5) days of the date of this order. requirements necessary for reinstatement in the Oklahoma Bar Association as set out DONE BY ORDER OF THE SUPREME in Rule 11, Rules Governing Disciplinary COURT IN CONFERENCE THIS 15th DAY OF Proceedings, 5 O.S. 2011, ch.1, app. 1-A. DECEMBER, 2014. 2) The attorney has established by clear and /s/ Tom Colbert convincing evidence that he has not CHIEF JUSTICE engaged in the unauthorized practice of law in the State of Oklahoma. ALL JUSTICES CONCUR. 3) The attorney has established by clear and 2014 OK 118 convincing evidence that he possesses the RACHAEL MONTGOMERY, individually, competency and learning in the law Plaintiff/Respondent, RACHAEL MONT- required for reinstatement to the Oklaho- GOMERY, as natural mother of Noah Orcutt, ma Bar Association. and NOAH ORCUTT, Plaintiffs, v. MORGAN POTTER, Defendant/Petitioner.

48 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 No. 111,928. December 16, 2014 § 7-116, Defendant alleges that Montgomery is precluded from seeking pain and suffering CERTIORARI TO REVIEW damages due to her status as an uninsured INTERLOCUTORY ORDER driver. Plaintiffs challenge the constitutionality ¶0 Plaintiffs filed a negligence action against of § 7-116, asserting that the statute is a special Defendant arising out of an automobile acci- law violative of art. 5, § 46 of the Oklahoma dent. Plaintiffs were rear-ended by Defendant Constitution. Montgomery filed a motion for and seek damages for medical expenses, per- declaratory relief asking the trial court to find § sonal injury, and pain and suffering. Plaintiff, 7-116 unconstitutional. The trial court agreed Rachael Montgomery, was an uninsured driver and declared the statute an unconstitutional at the time of the accident. Citing 47 O.S. Supp. special law. Defendant appeals by certified 2011, § 7-116, which prevents uninsured motor- interlocutory order and we previously granted ists from recovering certain non-economic certiorari. damages such as pain and suffering, Defen- DISCUSSION dant denies that Montgomery is entitled to damages for pain and suffering. Plaintiffs ¶3 The sole issue before the Court is whether argue that § 7-116 is a special law in violation 47 O.S.2011, § 7-116 is a constitutional law. Sec- of art. 5, § 46 of the Oklahoma Constitution and tion 7-116, known as the No Pay, No Play law, filed a motion for declaratory relief declaring prohibits uninsured drivers from the recovery the statute unconstitutional. The trial court of damages for pain and suffering in automo- ruled in Plaintiffs’ favor, striking down § 7-116 bile accident cases with the exception of cer- as an improper, special law. Defendant ap- tain circumstances, none of which applies to pealed and the trial court certified its ruling for Montgomery.1 interlocutory review. We previously granted the writ of certiorari. ¶4 Among other arguments, Plaintiffs assert § 7-116 violates the special law proscription of PETITION FOR CERTIORARI TO REVIEW art. 5, § 46 of the Oklahoma Constitution which A CERTIFIED INTERLOCUTORY ORDER provides that the Legislature may not create a PREVIOUSLY GRANTED; AFFIRMED. local or special law involving specific activities enumerated therein. Among the prohibited Joseph M. Norwood, Norwood Law Firm, activities, the constitutional provision forbids a Tulsa, Oklahoma, for Plaintiff/Respondent. special law “[r]egulating the practice or juris- Reid E. Robison, Philip D. Hart and Michael K. diction of, or changing the rules of evidence in Avery, McAfee & Taft, Oklahoma City, Okla- judicial proceedings or inquiry before the homa, and J. Craig Buchan and Jennifer Ary- courts.” Okla. Const. art. 5, § 46. Hogue, Atkinson, Haskins, Nellis, Brittingham, ¶5 Plaintiffs contend the statute is an imper- Gladd & Fiasco, Tulsa, Oklahoma, for Defen- missible special law which affects only victims dant/Petitioner. of auto accidents who are uninsured, carving Winchester, J. out this special class from the more general class of all victims of auto accidents. Defendant ¶1 This appeal involves an action for auto insists that the statute applies to all uninsured negligence arising out of injuries sustained by drivers equally and is general in its applica- Plaintiffs, Rachael Montgomery (“Montgom- tion. We disagree with Defendant’s character- ery”), and her three year old son, Noah Orcutt, ization of the class and find § 7-116 to be an on December 13, 2011. Montgomery was rear- unconstitutional, special law. ended by Defendant, Morgan Potter, who claims that her car brakes failed. As a result of ¶6 This Court faced a similar special law Defendant’s negligence, Montgomery alleges challenge in Zeier v. Zimmer, 2006 OK 98, 152 she sustained a severe back injury that requires P.3d 861, where we struck down a statute as an surgery. Among other damages sought by unconstitutional special law where it required Plaintiffs, Montgomery seeks damages for her claimants in medical malpractice actions, as pain and suffering. opposed to the more general class of all negligence claimants, to attach an affidavit of merit ¶2 At the time of the accident, Montgomery upon the filing of an action. In Zeier, the Court admits that she was driving uninsured as her held: automobile insurance had lapsed approximately sixty days prior. Pursuant to 47 O.S.2011

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 49 The terms of art. 5, § 46 command that PETITION FOR CERTIORARI TO REVIEW court procedure be symmetrical and apply A CERTIFIED INTERLOCUTORY ORDER equally across the board for an entire class PREVIOUSLY GRANTED; AFFIRMED. of similarly situated persons or things. In a ALL JUSTICES CONCUR special laws attack under art. 5, § 46, the only issue to be resolved is whether a stat- Winchester, J.

ute upon a subject enumerated in the 1. Specifically, the statute provides that “in any civil action to constitutional provision targets for differ- recover damages arising out of an accident involving the operation of a motor vehicle or for any claim against the motor vehicle liability ent treatment less than an entire class of insurance coverage of another party, the maximum amount that a similarly situated persons or things. The plaintiff or claimant may receive, if the plaintiff or claimant is not in compliance with the Compulsory Insurance Law, shall be limited to test is whether the provision fits into the the amount of medical costs, property damage, and lost income and structured regime of established procedure shall not include any award for pain and suffering.” 47 O.S.2011, § 7-116 (A). as part of a symmetrical whole. If an enact- Section 7-116 does not apply: (1) where the claimant was injured by ment injects asymmetry, the § 46 interdic- another driver operating under the influence of drugs or alcohol, (2) to passengers in the vehicle who were not the owner of the vehicle, (3) to tion of special law has been offended. claims for wrongful death, (4) if the claimant was not in the vehicle involved in the accident, (5) to accidents intentionally caused by Zeier, 2006 OK 98, ¶ 13, 152 P.3d at 867. (Foot- another, by one who left the scene of the accident or by one who was notes omitted.) (Emphasis original.) acting feloniously at the time, (6) if the claimant is a dependent whose parents were not in compliance, or (7) the claimant had previously been validly covered, unless the claimant had received notice of termi- ¶7 A statute is a special law where a part of nation at least 30 days before the accident. 47 O.S.2011, § 7-116 (B). an entire class of similarly affected persons is 2. Title 23 O.S.2011, § 61.2 provides that “in any civil action arising from a claimed bodily injury, the amount of compensation which a separated for different treatment. Reynolds v. trier of fact may award a plaintiff for noneconomic loss shall not Porter, 1988 OK 88, ¶ 14, 760 P.2d 816, 822. In exceed” $350,000. 3. The Compulsory Liability Insurance Law is codified as Article this case, the class of similarly affected persons VI of Chapter 7 of Title 47. It begins at 47 O.S. 2011 §§ 7-600 et seq. is plaintiffs in cases of automobile negligence. A general class has been identified in 23 2014 OK 119 O.S.2011, § 61.2 which allows for all plaintiffs ROBERT RILEY PERRY, Plaintiff/Appellant, with bodily injury the ability to recover pain v. THE CITY OF NORMAN, a municipal and suffering.2 Section 7-116 has targeted spe- corporation, Defendant/Appellee. cific individuals within that class, those not in No. 113,109. December 16, 2014 compliance with Oklahoma’s Compulsory Insurance Law, to receive special treatment in APPEAL FROM THE DISTRICT COURT OF the form of limited remedies, regardless of CLEVELAND COUNTY whether the plaintiff was at fault in causing the Honorable Tracy Schumacher, Trial Judge accident or not.3 The statute holds uninsured drivers to different and much stricter stan- ¶0 The plaintiff/appellant, Robert Perry, filed a lawsuit against the defendant/ dards than other plaintiffs in automobile negli- appellee, City of Norman, alleging that, gence cases. after Norman police officers beat Perry, he ¶8 Like the claimants in Zeier, it is clear that required several surgeries. Perry alleged § 7-116 “sets aside a subset of negligence plain- the City was liable for the police officer’s tiffs for different” treatment based on the status use of excessive force in violation of art. 2, of a plaintiff’s automobile insurance coverage. §30 of the Okla. Const. pursuant to our Zeier, 2006 OK 98, ¶ 17, 152 P.3d at 868. Section pronouncement in Bosh v. Cherokee Build- 7-116 creates an impermissible special class by ing Authority, 2013 OK 9, 305 P.3d 994. The City sought to dismiss the lawsuit arguing restricting damages in civil negligence actions that: 1) a Bosh claim is inapplicable to for victims who also happen to be uninsured police officers, but even if it were applica- drivers while the general class of automobile ble, such a claim is only available when a accident victims is not prevented from the plaintiff otherwise has no recourse; and 2) recovery of damages for pain and suffering. Perry should have sought to recover pur- Because 47 O.S.2011, § 7-116 impacts less than suant to the Oklahoma Governmental Tort an entire class of similarly situated claimants it Claims Act, (OGTCA) 51 O.S. 2011 §§151 et is under-inclusive and, therefore, we find it to seq. The trial court dismissed the action. be an unconstitutional special law prohibited Perry appealed and we retained the cause. by art. 5, § 46 of the Oklahoma Constitution. We hold that a Bosh v. Cherokee Building

50 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 Authority, 2013 OK 9, 305 P.3d 994, claim ach with several officers’ knees and elbows for excessive force against a municipality, pressed into his back and limbs, forcing him to as applied to police officers and other law the ground. Perry had committed no crime and enforcement personnel, may not be brought was not resisting arrest. While on the ground, against a municipality when a cause of an officer grabbed Perry’s arm and violently action under the OGTCA is available. and quickly twisted it back causing the bone behind his elbow to sustain a large fracture. TRIAL COURT AFFIRMED. Perry experienced extreme pain and tunnel Rand C. Eddy, Riley W. Mulinix, Oklahoma vision and eventually became unconscious City, Oklahoma, for Appellant. from the shock of the fracture and the lack of air due to the choke hold. Rickey J. Knighton II, Kristina Bell, Norman, Oklahoma, for Appellee. ¶5 As a result of the attack, Perry has under- gone several medical procedures including KAUGER, J.: two surgeries due to the arm fracture. On ¶1 The dispositive question presented is March 20, 2014, Perry filed a lawsuit in the Dis- whether a Bosh v.Cherokee Building Authority, trict Court of Cleveland County against the 2013 OK 9, 305 P.3d 994, claim for excessive City of Norman (the City), which was the force against a municipality, as applied to police officers’ employer. He did not name any police officers and other law enforcement per- of the individual police officers involved as sonnel, exists if an alternative cause of action defendants. Perry alleged that the police offi- may be pursued under the Oklahoma Govern- cers, acting within the scope and course of their mental Tort Claims Act, 51 O.S. 2011 §§151 et employment with the City, acted with the seq. (OGTCA). We hold that a Bosh v. Cherokee intent to use excessive force in violation of art. Building Authority, 2013 OK 9, 305 P.3d 994, 2, §30 of the Oklahoma Constitution.1 He also claim for excessive force, as applied to police alleged that the City was liable for the police officers and other law enforcement personnel, officers’ use of excessive force under the doc- may not be brought against a municipality trine of respondeat superior because the officers when a cause of action under the OGTCA is were acting within the scope of their employ- available. ment when the incident occurred. ALLEGED FACTS ¶6 On April 15, 2014, the City filed a motion to dismiss, arguing that: 1) Bosh v. Cherokee ¶2 According to the appellant, Robert Riley Building Authority, 2013 OK 9, 305 P.3d 994, Perry (Perry), he and his friends attended the our most recent constitutional excessive force Norman Music Festival (Festival) in Norman, case, was inapplicable to police officers; 2) the Oklahoma, on April 26, 2013. At approximately relief sought was available on non-constitu- 2:00 a.m. on the early morning of April 27, tional grounds; and 3) Perry did not allege any 2013, Perry and his friends left the Festival on facts which would support a cognizable legal bicycles to go home. On the way home, a Nor- theory to recover from the City. man police officer, also on a bicycle, approached Perry’s friends. The officer began issuing cita- ¶7 In an order filed July 9, 2014, the trial tions to Perry’s friends for running a stop sign court granted the City’s motion to dismiss. It on their bicycles. determined that: 1) although the rationale of Bosh v. Cherokee County Governmental Build- ¶3 The officer also asked Perry if he was ing Authority, 2013 OK 9, 305 P.3d 994 applies interfering with the traffic stop. Perry respond- to police officers, Bosh only recognized a cause ed that he was just waiting for his friends so of action for those who would otherwise not they could continue home. The officer then have one; and 2) because Perry has an alterna- rapidly approached Perry and threw his arm, tive cause of action under the OGTCA, he had with nightstick in hand, around Perry’s throat failed to state a Bosh claim. Perry appealed and placed him in a choke hold with extreme the trial court’s dismissal on August 6, 2014, force to his neck. Perry, frightened, began fight- and requested that we retain this public inter- ing for air and struggled to get out of the choke est cause. We retained the appeal on Septem- hold in order to breathe. ber 5, 2014. ¶4 As more police officers arrived at the A Bosh v. Cherokee Building Authority, scene, they slammed Perry over onto his stom- 2013 OK 9, 305 P.3d 994, CLAIM FOR

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 51 EXCESSIVE FORCE AGAINST A MU- 2) employer liability extends when an em- NICIPALITY, AS APPLIED TO POLICE ployee’s conduct is an assault of excessive OFFICERS AND OTHER LAW EN- force if the conduct also occurs within FORCEMENT PERSONNEL, MAY NOT one’s scope of employment;6 and BE BROUGHT WHEN A CAUSE OF ACTION UNDER THE OKLAHOMA 3) one acts within the scope of employment GOVERNMENTAL TORT CLAIMS ACT, if engaged in work assigned, or if doing 51 O.S. 2011 §§151 et seq. (OGTCA) IS what is proper, necessary and usual to AVAILABLE. accomplish the work assigned or doing that which is customary within the par- ¶8 Perry argues that our holding last year in ticular trade or business.7 Bosh v. Cherokee County Governmental Build- ¶12 For most occupations, committing an ing Authority, 2013 OK 9, 305 P.3d 994, applies assault of excessive force on a third person to this cause and the trial court erred in dis- would not be within the scope of an employ- missing his lawsuit. The City contends that ee’s employment, but there are certain occupa- Bosh, supra, is inapplicable because Perry has tions in which an employee’s act is within the a remedy available pursuant to the OGTCA. scope of employment if it is incidental to some ¶9 In Bosh, supra, the United States District service being performed for the employer or it Court for the Eastern District of Oklahoma cer- arises out of an emotional response to actions tified four questions to this Court which we being taken for the employer. Some examples reformulated into three. All three questions of such occupations are police officers (wheth- concerned the right of a detention center er on or off duty),8 daycare givers,9 nursing detainee to bring a cause of action for excessive home caregivers,10 repossessors,11 and jailers,12 force against jailers for injuries sustained when among others. the jailers attacked the detainee. Bosh was the ¶13 The complexity arises when the employ- progeny of Washington v. Barry, 2002 OK 45, 55 er is a governmental entity or municipality P.2d 1036. Although the plaintiff in Washington such as the City in this cause because different failed to successfully state an actionable claim, rules apply. In Oklahoma, governmental enti- we recognized that a private constitutional ties who were once protected from tort liability excessive force action may exist for prison through the doctrine of governmental immu- inmates against prison officials. nity, were allowed to be sued when the Court, ¶10 As a result of the attack, the Bosh detain- in Vanderpool v. State, 1983 OK 82, 672 P.2d ee filed a lawsuit against the detention center. 1153, abrogated the doctrine and acknowl- The detention center asserted that it was edged the Legislature’s right to enact sovereign immune from state tort claims based on exemp- immunity by statute. tions from liability provided by the OGTCA, ¶14 The Legislature’s Political Subdivision specifically, for the operation of any prison, jail Tort Claims Act, now known as the OGTCA, or correctional facility.2 The detainee argued became the exclusive remedy for an injured that regardless of what the OGTCA immuniz- plaintiff to recover against a governmental es, the Okla. Const. art. 2, §303 protects citizens entity in tort. Subject to specific limitations and from being physically abused by the employ- exceptions, governmental immunity was ees of state and local entities that operate jails waived under the OGTCA and governmental and correctional facilities, and such protection accountability was extended to torts for which includes legal liability for such conduct. a private person would be liable, unless they ¶11 We held that the Oklahoma Constitution, were committed in bad faith or in a malicious art. 2, §304 provides a detainee a private cause manner. of action for excessive force notwithstanding ¶15 Under the OGTCA, the question for gov- the OGTCA. In doing so, we recognized the ernmental employer liability also hinges on common law doctrine of respondeat superior whether one acted within the scope of employ- which holds that: ment by engaging in work assigned, or if doing 1) a principal or employer is generally held what was proper, necessary and usual to liable for the wilful acts of an agent or accomplish the work assigned, or doing that employee acting within the scope of the which was customary within the particular employment in furtherance of assigned trade or business. Consequently, governmental duties;5 employees such as police officers, whether on

52 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 duty or off duty, have been held to the possibil- plaintiff would have had no avenue for recov- ity their conduct and use of excessive force ery for his injuries whatsoever. may have occurred within the scope of employ- ¶19 Here, employer liability for police offi- ment subjecting their employers to liability. cer’s alleged excessive force conduct under the ¶16 In paragraphs 22 and 23 of Bosh, supra, OGTCA is well settled.14 Because the plaintiff we said: could have brought a claim for excessive force against the City under the OGTCA and poten- The Okla. Const. art. 2, §30 applies to citi- tially recovered for that claim, he was not left zens who are seized — arrestees and pre- without a remedy. There is no rationale requir- incarcerated detainees. In Washington, we ing the extension of a Bosh excessive force declared that, not withstanding the provi- action brought under the Okla. Const. art. 2, sion of the OGTCA, a private action for §30 to this cause. Rather, the plaintiff’s remedy excessive force exists pursuant to the Okla. belongs exclusively within the confines of the Const. art 2, §9 for incarcerated persons. OGTCA and a jury’s determination concerning Having done so, and having explained that whether the police officers were acting within those not yet convicted are assured of even the scope of their employment under the greater rights, it would defy reason to hold OGTCA, 51 O.S. 2011 §§151 et. seq. that pre-incarcerated detainees and arrestees are not provided at least the same pro- CONCLUSION tections of their rights, the same cause of ¶20 The OGTCA cannot be construed as action for excessive force under the Okla. immunizing the state completely from all lia- Const. art. 2, §30. bility for violations of the constitutional rights The OGTCA cannot be construed as of its citizens. To do so, would not only fail to immunizing the state completely from all conform to established precedent which re- liability for violations of the constitu- fused to construe the OGTCA as providing tional rights of its citizens. To do so blanket immunity, but would also render the would not only fail to conform to estab- Constitutional protections afforded the citizens lished precedent which refused to con- of this State as ineffective. This is a harsh result; strue the OGTCA as providing blanket however, pursuant to our previous pronounce- immunity, but would also render the Con- ment in Bosh v. Cherokee Building Authority, stitutional protections afforded the citizens 2013 OK 9, 305 P.3d 994, claims for excessive of this State as ineffective, and a nullity. force against a municipality may not be brought Therefore we answer the reformulated ques- against a governmental entity when a cause of tion and hold that the Okla. Const. art 2, §30 action under the OGTCA is available. Because provides a private cause of action for exces- the plaintiff did not seek retribution for his sive force, notwithstanding the requirements injuries under the OGTCA, the trial court did and limitations of the OGTCA. (Citations not err in dismissing the cause. omitted, emphasis supplied.) TRIAL COURT AFFIRMED. ¶17 Under this rationale, our holding in Bosh REIF, V.C.J., KAUGER, EDMONDSON, COMBS, v. Cherokee Building Authority, 2013 OK 9, 305 JJ., concur. P.3d 994, is applicable to police officers and any other law enforcement personnel applying WINCHESTER, TAYLOR, JJ., concur by reason excessive force against a citizen. The distin- of stare decisis. guishing fact here is that the Bosh plaintiff was barred from bringing an action under the pro- COLBERT, C.J., WATT, GURICH, JJ., dissent. visions of the OGTCA, and the plaintiff in this KAUGER, J.: cause is not. 1. The Okla. Const. art. 2, §30 provides: ¶18 In Bosh, the applicable provisions of the The right of the people to be secure in their persons, houses, OGTCA expressly immunized the state and papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon prob- political subdivisions such as counties and able cause supported by oath or affirmation, describing as par- municipalities from liability arising out of the ticularly as may be the place to be searched and the person or 13 thing to be seized. operation of prison facilities. Consequently, 2. Title 51 O.S. Supp. 2012 §155 provides in pertinent part: without the excessive force action brought The state or a political subdivision shall not be liable if a loss or claim results from: under the Oklahoma Constitution, the Bosh ...

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 53 24. Provision, equipping, operation or maintenance of any pris- 9. Baker v. Saint Francis Hospital, 2005 OK 36, ¶18, 126 P.3d 602, [A on, jail or correctional facility, or injuries resulting from the jury question was presented as to whether a day care caregiver was parole or escape of a prisoner or injuries by a prisoner to any acting within the scope of employment so as to hold her employer other prisoner; provided, however, this provision shall not apply liable for intentionally striking a child’s head on a corner of shelf.] to claims from individuals not in the custody of the Department 10. Rodebush v. Oklahoma Nursing Home, Ltd., 1193 OK 160, 867 of Corrections based on accidents involving motor vehicles P.2d 1241 [Nursing home employee forcefully slapped combative owned or operated by the Department of Corrections;... Alzheimer’s patient]. 3. The Okla. Const. art.2, §30, see note 1, supra. 11. Russell-Locke Super-Service v. Vaughn, 1935 OK 90, 40 P.2d 4. The Okla. Const. art.2, §30, see note 1, supra. 1090 [Employee fought with customer while attempting to repossess 5. Bosh v. Cherokee County Governmental Building Authority, an automobile battery]. 2013 OK 9, ¶9, 305 P.3d 994; Schovanec v. Archdiocese of Oklahoma 12. Bosh v. Cherokee County Governmental Building Authority, City, 2008 OK 70, ¶5, 188 P.3d 158; N.H. Presbyterian Church, 1999 OK see note 5, supra at ¶10; Washington v. Barry, 2002 OK 45, 55 P.3d 1036. 88, ¶14, 998 P.2d 592. 13. Title 51 O.S. Supp. 2012 §155, see note 3, supra. 6. Bosh v. Cherokee County Governmental Building Authority, see 14. See 51 O.S. 2011 §§155(4), 155(6), 155(16) and the cases which note 5, supra; N.H. v. Presbyterian Church, see note 5, supra. have determined that the OGTCA cannot be construed as providing 7. Bosh v. Cherokee County Governmental Building Authority, see blanket immunity for police officers acting within the scope of their note 5, supra at ¶10; Tuffy’s Inc. v. City of Oklahoma City, 2009 OK ¶7, employment. Nail v. City of Henryetta, see note 7, supra wherein a police 212 P.3d 1158; DeCorte v. Robinson, 1998 OK 87, ¶12, 969 P.2d 358; Nail officer shoved an intoxicated 15-year-old who was handcuffed and not v. City of Henryetta, 1996 OK 12, ¶11, 911 P.2d 914. resisting arrest; DeCorte v. Robinson, see note 7, supra [off duty police 8. Nail v. City of Henryetta, see note 7, supra, wherein a police officer who helped arrest a civilian struck and injured civilian resulting officer shoved an intoxicated 15-year-old who was handcuffed and not in herniated disk]; Tuffy’s Inc. v. City of Oklahoma City, see note 7, supra resisting arrest; DeCorte v. Robinson, see note 7, supra [off duty police [Officers allegedly attacked, harassed and assaulted customers at night officer who helped arrest a civilian struck and injured civilian resulting club]; Fuller v. Odom, see note 8, supra [Officer causing a car accident]; in herniated disk]; Tuffy’s Inc. v. City of Oklahoma City, see note 7, Morales v. City of Oklahoma City ex rel. Oklahoma City Police Dept., see supra [Officers allegedly attacked, harassed and assaulted customers note 8 supra [Officer injured girl during arrest]. at night club]; Fuller v. Odom, 1987 OK 64, ¶3, 741 P.2d 449 [Officer causing a car accident]; Morales v. City of Oklahoma City ex rel. Okla- homa City Police Dept., 2010 OK 9, ¶29, 230 P.3d 869 [Officer injured girl during arrest].

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54 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 Court of Civil Appeals Opinions

2014 OK CIV APP 94 restore the city to include only the geo- graphical area that was originally platted IN RE: CITY OF McLOUD INITIATIVE as the Town of McLoud. [sic] with the outer PETITION 2010-2 DE-ANNEXATION, boundaries being Pittman Ave. on the THOMAS MORRIS, Appellant, vs. A. KAY north, C. R. I. & P. R. R. on the east except HEINZ, CITY CLERK OF McLOUD, that Block 1 is east of the railroad at the OKLAHOMA, Appellee. intersection of Pittman Ave. and Third St., Case No. 110,204. June 20, 2014 the south line of Section 9 T11N R2E on the south, and Ninth St. on the west. APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY, OKLAHOMA ¶4 The Petition and signatures of those supporting the measure were filed with Clerk on HONORABLE JOHN D. GARDNER, October 19, 2010. The proposed ballot title for TRIAL JUDGE the Petition was reviewed by City’s attorney, AFFIRMED who drafted a new ballot title. This new ballot title, published in a legal notice on October 29, J. Kelly Work, Oklahoma City, Oklahoma, for 2010, states: Appellant, This measure de-annexes all land annexed Michael Phelan Warwick, MICHAEL P. WAR- by the City of McLoud since its founding, WICK, INC., Shawnee, Oklahoma, for Appellee. including all McLoud Public Schools, all Wm. C. Hetherington, Jr., Vice-Chief Judge: City water wells, Waste Water Treatment Plant, McLoud Cemetery, Mabel Bassett ¶1 Thomas Morris (Morris) appeals an order Prison, Wes Watkins Reservoir, and all of the trial court sustaining the finding of homes and land South of Oklahoma Street McLoud’s city clerk, A. Kay Heinz (Clerk), that or West of Ninth Street. This measure pro- McLoud Initiative Petition #2010-2 (the Peti- posed de-annexation without the consent tion) was insufficient. We conclude the Petition of the owners of such property, without is an untimely referendum, it violates constitu- notice to the owners of such property, and tional due process of the landowners in the without following the statutory procedures area proposed for de-annexation, and is not the designed to protect the rights of property proper method to achieve the de-annexation owners. De-annexation will deny the own- sought. The order sustaining Clerk’s finding of ers of such property the right to vote in insufficiency is AFFIRMED. municipal elections, and the right to receive FACTS city services such as police protection, fire,

1 water, sewer and street maintenance. Own- ¶2 A number of initiative petitions, includ- ers of de-annexed property are liable to the ing Initiative Petition #2010-2 (the Petition), City for the cost of public improvements on which is the subject of this appeal, were pre- their property. filed with the City Clerk (Clerk) of McLoud (City) on July 28, 2010. The Petition seeks de- ¶5 The notice advises “that on October 20, annexation of thirty tracts comprising approxi- 2010 the City Attorney determined that the bal- mately 15 square miles of City and contains lot title in the above referenced Initiative Peti- legal descriptions of the tracts, a map, and a tion was not in legal form and in harmony with copy of a platted area. The proposed change the law,” and that City’s attorney had prepared would result in City reverting to the area origi- the ballot title published in the October 29, nally platted in 1895 as a town. 2010 notice. The October 29, 2010 Notice advises that “[a]ny qualified elector” of City may ¶3 The original ballot title filed by the propo- appeal the ballot title within ten days of the nents of the Petition states: notice by filing an objection with the District This measure de-annexes all that land area Court of Pottawatomie County, Oklahoma and currently in the City of McLoud that was serving notice of the appeal upon Clerk “and previously annexed to the Town, now City, the persons that prepared the ballot title.” The of McLoud. Passage of this measure will October 20, 2010 notice also contains the fol-

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 55 lowing statement: “The City Clerk has not yet Morris’s Protest and to his motion to find the determined the sufficiency or insufficiency of Petition sufficient, both parties filed trial briefs, McLoud Initiative and Referendum Petition and the trial court conducted a hearing on #2010-2.” October 25, 2011. The trial court entered an order recounting how sworn testimony, stipu- ¶6 Clerk published notice in the November lations, and arguments of counsel were received 20, 2010 edition of the Shawnee News-Star news- and sustaining Clerk’s finding the Petition was paper stating the Petition has sufficient signa- insufficient. tures, and “[t]he time for objecting to the City Attorney’s proposed Ballot Title has expired.” THE APPEAL However, she determined the Petition is “insuf- ¶8 At the outset, we note there is no dispute ficient” for the following reasons: concerning the number of signatures necessary a. Although denominated as a Petition for for the Petition. Clerk has stated the total Initiative, the Petition is in reality an imper- obtained is sufficient. The challenge to Clerk’s missible attempt to dissolve the City of finding of insufficiency, on grounds other than McLoud without complying with statutory the number of signatures, was timely filed requirements. within ten days of the November 20, 2010 notice. Although several cases have addressed b. The Petition for Initiative creates a use of the referendum process in the context of default regarding contracts of the City of de-annexation of municipal territory, we agree McLoud and violates Article 2, Section 152 with Clerk that this controversy presents a of the Oklahoma Constitution. matter of first impression whether the initia- c. The proposed Petition for Initiative vio- tive process also may be used to de-annex the lates the due process and property rights of subject territory. the persons owning property within the ¶9 Morris argues the trial court’s order areas to be de-annexed, and violates Article improperly deprives the people of McLoud of 2, Section 73 of the Oklahoma Constitution. the power of initiative in violation of Okla. d. Although denominated as a Petition for Const. art. 18, § 4(a) and 11 O.S.2011§ 15-101, Initiative, the Petition is in reality an imper- improperly considers the wisdom rather than missible attempt to hold a Referendum on the legality of the Petition, and applies “an previous annexation ordinances long after overly technical construction to deny the Peti- the 30 day time limit to petition for referen- tion.” Morris claims the trial court failed to dum has expired. enter a finding the Petition “clearly and manifestly” violates either the Oklahoma Constitu- e. Although a timely filed referendum on tion or United States Constitution and, in the the de-annexation of certain discrete prop- absence of such a finding, improperly declares erty by a municipality has been approved the Petition invalid in advance of a vote of the by the courts, the attempt to destroy a city people. by “de-annexation” is not a power reserved to the people by way of initiative petition. ¶10 The trial court’s order sustaining Clerk’s determination does not contain specific find- (Footnotes added.) ings of fact or conclusions of law, and there is ¶7 Morris filed a Protest to Clerk’s Finding of no allegation such were requested. Morris Insufficiency in the District Court of Pottawat- alleges the trial court “may have improperly omie County on November 30, 2010, claiming determined” the de-annexation was not a the City Attorney’s ballot title published on proper subject for an initiative petition, as it October 29, 2010, “is slanted to the point it does “would result in the impairment of a contract not now meet the requirements of statutes,” without a clear showing thereof” and it would and it “appears to contain erroneous informa- violate due process rights of the persons in the tion.” Morris’s Protest notes Clerk published areas de-annexed. Morris also contends the findings of insufficiency on November 20, trial court “may have improperly determined” 2010, and asks the trial court to determine if the the Petition was “an impermissible attempt to Petition “is in form required by law,” citing 11 dissolve the City of McLoud” and was “an O.S.2011 § 15-104.4 Morris filed a Motion to impermissible attempt to hold a referendum Find Initiative Petition 2010-2 Sufficient on on previous annexation ordinances.” December 8, 2010. Clerk filed a response to

56 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 ¶11 The duty of a city clerk is to determine, ¶ 11, 251 P.3d 183, 185. We review the trial in the first instance, if a petition “is sufficient in court’s decisions on questions of law de novo and form.” See, In re Initiative Petition No. 2 of Cush- without deference to the trial court’s decision. ing, 1932 OK 124, ¶ 37, 10 P.2d 271, 281. “Those Lee v. Bates, 2005 OK 89, ¶ 4, 130 P.3d 226, 228. who challenge the validity of actions of public officials apparently within their statutory pow- ¶15 In In Re: De-annexation of Certain Real ers, must carry the burden of demonstrating Property from the City of Seminole, 2004 OK 60, ¶ such invalidity.” U.C. Leasing, Inc. v. State ex rel. 10 - ¶ 11, 102 P.3d 120, 125-126, in a subsection State Bd. of Public Affairs, 1987 OK 43, ¶ 24, 737 entitled “An Alteration of Municipal Boundar- P.2d 1191, 1196. ies Is Accomplished By The Exercise Of A State Sovereign Power That Has Been Delegated to ¶12 Morris contends some of Clerk’s given Municipalities,” the Oklahoma Supreme Court reasons for the determination the Petition is explains insufficient are premised on speculation regarding practical problems the City of McLoud There is only one sovereign power in state might face if the areas described were de- government. The exercise of that power in annexed and contends these speculations are Oklahoma is through the State Legislature. not support for a finding the Petition is legally Municipalities are political subdivisions of insufficient, i.e., Clerk’s claim the Petition is the State. Their governmental activities — insufficient because it seeks to “dissolve” or executive, legislative and judicial — must “destroy” the City of McLoud. Morris argues conform to both the mandates of the State’s these claims are not borne out on the face of the constitution and to the general laws upon Petition, which indicates the de-annexation matters of statewide interest. The power to sought includes only areas added since the alter local governmental boundaries falls municipality’s founding and the original area of solely within the State’s plenary authority. the City of McLoud, which was formerly a town, The State Legislature has conferred the will be preserved. While it is true a reduced land annexation power upon municipalities to area might pose political and economic difficul- be exercised in conformity to the Oklahoma ties for a municipality if the initiative were Municipal Code. adopted by voters, the issue for resolution at this juncture is whether the Petition clearly and (Footnotes omitted; emphasis added.) manifestly contains legal insufficiencies. ¶16 In the Oklahoma Municipal Code, the ¶13 As the Court explains in In re Initiative Legislature has provided the procedure for Petition 362, State Question No. 699, 1995 OK 77, detachment of municipal territories in 11 ¶12, 899 P.2d 1145, 1151: O.S.2011 § 21-110: The right to pass legislation and change the A. Territory may be detached from the cor- Constitution through the initiative process porate limits of a municipality by the gov- is a fundamental right of the people and erning body when: must be jealously guarded. Our Constitu- tion provides, “the people reserve to them- 1. An ordinance of the governing body so selves the power to propose laws and directs; or amendments to the Constitution and to 2. A petition requesting detachment, signed by enact or reject the same at the polls inde- at least three-fourths ( 3/4 ) of the registered pendent of the Legislature.” Okla. Const. voters and by the owners of at least three- Art. V. § 1. All doubt as to the construction fourths ( 3/4 ), in value, of the property to be of a proposed initiative “is to be resolved in detached, is filed with the governing body. favor of the initiative.” In re Initiative Peti- tion No. 348, State Question No. 640, [1991 Only land which is within the limits of the OK 110, ¶ 5,] 820 P.2d 772 (Okla. 1991). municipality and upon its border and not Thus, unless Protestants can show that this laid out in lots and blocks, or land which Initiative clearly and manifestly violates had been annexed to a municipality, may either the Oklahoma or United States Con- be detached by petition. stitution, the Initiative is legally sufficient. B. Petitioners for detachment of municipal ¶14 Constitutional issues present questions territory shall comply with the following of law. Malloy v. Caldwell, 2010 OK CIV APP 26, procedures:

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 57 1. A true and complete unsigned copy of the constitutional duty to ensure that in the exer- petition requesting detachment shall be filed cise of the right of initiative, the provisions of with the clerk of the municipality before it is the Constitution are adhered to.” (Footnote circulated and signed by at least three-fourths omitted.) However, the Court also has deter- (3/4) of the registered voters and by the owners mined, in Initiative Petition In re No. 349, State of at least three-fourths (3/4), in value, of the Question No. 642, 1992 OK 122,5 838 P.2d 1, 8, property to be detached, as required by subsec- that “A PRE-SUBMISSION DETERMINATION tion A of this section; OF THE CONSTITUTIONALITY OF THE INI- TIATIVE PETITION IS APPROPRIATE AND 2. Signed copies of the petition requesting NECESSARY WHERE THE PROPOSAL IS detachment shall be filed with the clerk of FACIALLY UNCONSTITUTIONAL AND IS the municipality within ninety (90) days JUSTIFIED WHEN A COSTLY AND FUTILE after the initial filing of the unsigned copy ELECTION MAY BE AVOIDED.” (Capitaliza- with the clerk; and tion in original.) Indeed, the Court goes on to 3. Notice of the filing of the signed petition comment that “if a properly preserved consti- requesting detachment with the clerk of tutional challenge is leveled at a proposed law the municipality shall be given in the same and a ruling on the issue would prevent a use- manner provided for petitions requesting less election resulting in the enactment of an annexation. unconstitutional statute, this Court has the authority, as well as the responsibility, to decide Failure to comply with the notice require- the matter.” Id. ¶ 18, p. 8.6 ment or the other procedures set forth in this subsection shall render the petition for ¶17 The Legislature has adopted a statutory detachment insufficient and no action process for removing territory from munici- thereon shall be required by the clerk or palities which is limited to “[o]nly land which governing body of the municipality. is within the limits of the municipality and upon its border and not laid out in lots and C. When signed copies of the petition request- blocks, or land which had been annexed to a ing detachment are timely filed with the clerk of municipality” and which requires “[a] petition the municipality, the clerk shall determine the requesting detachment, signed by at least three- sufficiency of the signatures appearing on the fourths (3/4) of the registered voters and by the petition. The clerk shall then publish, in at owners of at least three-fourths (3/4), in value, of least one newspaper of general circulation the property to be detached.” (Emphasis in the municipality, a notice of the filing added.) This is not the initiative petition pro- and the apparent sufficiency or insuffi- cess, under which fifty percent plus one voter ciency of the petition. Within ten (10) days of a municipality at large, i.e., not limited to following the publication, the governing those residents of the territory proposed for body of the municipality shall hold a pub- detachment, could detach territory from a lic hearing on the petition requesting municipality via use of the initiative. Use of an detachment and take such action thereon initiative petition under the circumstances here as the governing body deems appropriate, is inconsistent with the legislative intent em- which may include approval, denial, or bodied in the Oklahoma Municipal Code and deferral. fails to protect due process rights of the affect- D. Appeal to the district court concerning ed property owners. The statutory process, not any action by the clerk or governing body of the initiative process, is the de-annexation the municipality on a petition requesting method consistent with protection of constitu- detachment shall be in the same manner tional rights. Morris has failed to comply with provided for petitions requesting annexa- this applicable statutory process. tion. ¶18 Further, the process advocated by Morris (Emphasis added.) is, effectively, an end run against longstanding prior annexations and, effectively, not an initia- As the Oklahoma Supreme Court states in In tive petition but instead is an untimely referen- Re: Initiative Petition No. 382, State Question No. dum. Any referendum regarding an ordinance 729, 2006 OK 45, ¶ 16, 142 P.3d 400, “We cannot or resolution is due within thirty days of pas- undervalue the Oklahoma Constitutional right sage of the ordinance or resolution. 11 O.S.2011 of initiative, but we also may not ignore our § 15-103C. We agree with Clerk that the Peti-

58 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 tion seeks to undo previously passed ordi- 3. Which section provides: “No person shall be deprived of life, liberty, or property, without due process of law.” nances or resolutions and is, effectively, an 4. This section provides: untimely referendum. A. When signed copies of a petition are timely filed with the clerk, the clerk shall make a physical count of the number of signatures CONCLUSION appearing on the petitions. He shall then publish, in at least one (1) newspaper of general circulation in the municipality, a notice of the filing and the apparent sufficiency or insufficiency of the petition. ¶19 The Legislature has provided a statutory The notice shall also state that any qualified elector of the munici- method for the detachment of municipal terri- pality may file a protest to the petition or an objection to the count made by the clerk. tories. Although only one reason is enough for B. A protest to the petition or the count of signatures shall be filed a determination of insufficiency, Clerk has in the district court in the county in which the situs of the identified two proper grounds for finding the municipality is located within ten (10) days after the publication. Written notice of the protest shall be served upon the clerk and Petition insufficient: (1) it is a clear and mani- the parties who filed the petition. In the case of the filing of an fest violation of constitutional rights, and (2) it objection to the count, notice shall also be served upon any party filing a protest. The district court shall fix a day, not less than ten proposes what is effectively an untimely refer- (10) days after the filing of a protest, to hear testimony and argu- endum. The order sustaining Clerk’s finding of ments for and against the sufficiency of the petition. A protest filed by anyone, if abandoned by the party filing it, may be insufficiency is AFFIRMED. revived within five (5) days by any other qualified elector. After the hearing, the district court shall decide whether such petition JOPLIN, P.J., concurs. is in form required by law. 5. Cited text is the subheading preceding paragraph 16 of the opinion. KENNETH L. BUETTNER, JUDGE, dissenting: 6. Citing this authority, this legal tenet was, more recently, made a part of the holdings listed in the Order found at In re Initiative Petition ¶20 Article 18, §4(a) provides that the powers No. 395, State Question No. 761, 2012 OK 42, ¶ 1, 286 P.3d 637. of initiative on referendum are reserved to the 2014 OK CIV APP 95 people of every municipal corporation with reference to all legislative authority which the BRENDA LINAM, Plaintiff/Appellant, vs. municipality may exercise. WALMART STORES, INC., Defendant/ Appellee. ¶21 The Legislature has authorized the process by which territory of a municipality may Case No. 112,299. July 24, 2014 be de-annexed. While the focus is on 11 O.S.2011 APPEAL FROM THE DISTRICT COURT OF §21-110(A)(2), which provides a petition pro- TULSA COUNTY, OKLAHOMA cess by persons living in the property sought to be de-annexed, the majority ignores §21-110(A) HONORABLE DAMAN H. CANTRELL, (1) which allows for de-annexation by an ordi- TRIAL JUDGE nance of the governing body. It would appear VACATED AND REMANDED to me that if a city council may by ordinance, de-annex territory, then the people of the city, Richard Carpenter, JAMES, POTTS & WUL- under their constitutionally reserved power of FERS, INC., Tulsa, Oklahoma, for Plaintiff/ Article 18, §4(a), may seek enactment of such Appellant an ordinance by initiative petition. Mark T. Steele, Brandy L. Wandres, Lindsey E. ¶22 In addition, it is not clear the initiative Albers, LATHAM, WAGNER, STEELE AND petition was facially unconstitutional. If it was, LEHMAN, P.C., Tulsa, Oklahoma, for Defen- then all efforts to de-annex territory would suf- dant/Appellee fer the same “insufficiency.” Rather, the objec- P. THOMAS THORNBRUGH, JUDGE: tions are more properly raised when and if the initiative petition becomes law and is applied. ¶1 Plaintiff, Brenda Linam, appeals the decision of the district court that it has no jurisdic- ¶23 I respectfully dissent. tion to “vacate” a prior dismissal with prejudice Wm. C. Hetherington, Jr., Vice-Chief Judge: filed by her counsel. We vacate the decision of the district court, finding that the question of the 1. Appeals relating to this group of initiative petitions were filed in court’s jurisdiction has not yet been decided. cases docketed as Case Numbers CIV-2010-104 and CIV-2010-107, which were consolidated for hearing. Case No. CIV-2010-7, in which the parties raised issues regarding McLoud Initiative Petitions 2010-4 ¶2 In September 2011, Plaintiff filed suit though McLoud Initiative Petition 2010-8, later was partially dis- against Defendant, Walmart, alleging an injury missed. The issues presented in this appeal arise solely from determi- on Defendant’s premises. On August 13, 2012, nations regarding McLoud Initiative Petition 2010-2. 2. In toto, this section provides: “No bill of attainder, ex post facto the court noted in a minute order that the case law, nor any law impairing the obligation of contracts, shall ever be had settled. The same day, Plaintiff’s then- passed. No conviction shall work a corruption of blood or forfeiture of estate: Provided, that this provision shall not prohibit the imposition of counsel filed a dismissal with prejudice. On pecuniary penalties.” December 7, 2012, Defendant filed a motion to

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 59 enforce settlement, stating that it had agreed to ¶7 Recently, Division I of this Court held that settle the case for a cash amount, but had yet to § 1031 did not permit a trial court to allow a receive an agreed release from Plaintiff. On plaintiff to amend his voluntary dismissal with January 25, 2013, Defendant “withdrew” its prejudice of a slander lawsuit to a dismissal motion to enforce settlement, stating that it without prejudice, as the plaintiff’s dismissal believed the court lacked jurisdiction to enforce was voluntary and not by court order. See Ritter the settlement after the dismissal with preju- v. Ritter, 2008 OK CIV APP 9, ¶ 6, 177 P.3d 1110. dice had been filed. In Ritter, the plaintiff voluntarily dismissed his action with prejudice and subsequently sought ¶3 On January 31, 2013, Plaintiff, represented to vacate the dismissal on the basis of a mistake by new counsel, filed a motion to “set aside” or or scrivener’s error, claiming that he intended vacate the voluntary dismissal with prejudice to dismiss without prejudice. Division I held pursuant to 12 O.S.2011 § 1031, or pursuant to that the trial court had no jurisdiction to exer- other powers of the court, arguing that Plaintiff cise any authority in the case because of the had not approved any settlement or dismissal dismissal. The Supreme Court denied certio- of the case,1 and had received no funds. On rari. The district court in the instant case relied February 6, 2013, Plaintiff filed a similar plead- on Ritter. ing as a “petition to set aside.” ¶8 Nonetheless, we respectfully disagree that ¶4 Defendant responded that the court had either the Ritter opinion, or the case of Firestone no jurisdiction to re-open the case to set aside a Tire & Rubber Co. v. Barnett, 1970 OK 93, 475 voluntary dismissal with prejudice. The dis- P.2d 167 on which Ritter relies, supports the trict court agreed, holding that pursuant to result reached by the district court here. The Ritter v. Ritter, 2008 OK CIV APP 9, 177 P.3d closing paragraph of Firestone Tire is often cited 1110, it lost jurisdiction over the case when the in Oklahoma jurisprudence: dismissal was filed. Plaintiff filed a motion for We hold that the dismissal was effective new trial, which was denied. Plaintiff now and complete and that the jurisdiction of appeals. the court was thereupon terminated; that the STANDARD OF REVIEW trial court was without jurisdiction to vacate said dismissal . . . and such action by the trial ¶5 The question before us concerns the juris- court constituted an attempt to make unau- diction of the district court to “vacate” a volun- thorized application of judicial force and tary dismissal with prejudice pursuant to 12 should be prohibited by this court. O.S.2011 § 1031 or the court’s equitable powers. The standard of review for questions of law Id. concerning the jurisdictional power of the trial ¶9 This paragraph was interpreted in Ritter court to act is de novo. Dilliner v. Seneca-Cayuga as holding that a voluntary dismissal with Tribe of Okla., 2011 OK 61, ¶ 12, 258 P.3d 516. De prejudice ended the jurisdiction of the district novo review involves a plenary, independent, court to inquire into any matter, including the and non-deferential examination of the trial validity or legal effectiveness of the dismissal. court’s rulings of law. In re Estate of Bell-Levine, However, Firestone conducts that exact inquiry 2012 OK 112, ¶ 5, 293 P.3d 964. before finding in its final paragraph that the court was without jurisdiction. Put succinctly, ANALYSIS Firestone found that the district court was with- ¶6 We note that the record contains no testi- out jurisdiction because the dismissal was valid mony from Plaintiff’s former counsel, and the and legally effective, not simply because the dis- factual question of whether Plaintiff autho- missal had been filed. rized a settlement and dismissal is not before ¶10 In Firestone, the plaintiff dismissed with us. This appeal involves a single question of prejudice voluntarily after the defendant filed law — what options does the law provide to a motion for summary judgment. The defen- parties who claim that counsel voluntarily dis- dant objected to the dismissal, arguing that the missed their case with prejudice, without plaintiff could not dismiss voluntarily because authority to do so? On review, we find that a 12 O.S.1961 § 684 forbade voluntary dismissal court has jurisdiction to enquire into the legal after “trial is commenced.” The defendant also effectiveness of a dismissal, and thus into its argued that the dismissal did not end the case own jurisdiction. because he had raised claims for affirmative

60 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 relief in his answer. The trial court agreed, and VACATED AND REMANDED. vacated the dismissal. FISCHER, P.J., and RAPP, J., concur. ¶11 We find it of the utmost significance that P. THOMAS THORNBRUGH, JUDGE: the Court in Firestone did not immediately hold that the trial court had no jurisdiction to con- 1. The record indicates that Defendant never paid the settlement sider vacating the dismissal. Instead, it devot- amount because of Plaintiff’s failure to provide a release. ed a substantial part of its opinion to an analy- 2014 OK CIV APP 97 sis of whether the dismissal had been proper, i.e., whether “trial had been commenced” and MICHAEL CARL DOLINA, Petitioner, vs. whether the defendant had pled for affirmative FABRICUT, INC., WAUSAU INSURANCE relief. Only after the Court found that neither GROUP, and the WORKERS’ factor was present, and hence that the dismiss- COMPENSATION COURT, Respondents. al was legally effective, did it state that the trial Case No. 112,595. November 7, 2014 court was without “further jurisdiction.” We find Firestone clear that a court should make PROCEEDING TO REVIEW AN ORDER OF inquiry into the legal effectiveness of a dismissal A THREE-JUDGE PANEL OF THE before holding that the dismissal has divested the WORKERS’ COMPENSATION COURT court of jurisdiction. HONORABLE OWEN T. EVANS, ¶12 This conclusion is supported by the dis- TRIAL JUDGE missal statute, 12 O.S.2011 § 684, which states SUSTAINED that “an action may be dismissed by the plaintiff,” inherently limiting the right of dismissal Richard A. Shallcross, SHALLCROSS LAW to the plaintiff or a person properly exercising this FIRM, Tulsa, Oklahoma, for Petitioner right on behalf of the plaintiff by agency. Pursuant Catherine C. Taylor, PERRINE, REDEMANN, to § 684, Ritter can be distinguished from the BERRY, TAYLOR & SLOAN, PLLC, Tulsa, current case, in that the dismissal in Ritter was Oklahoma, for Respondents indisputably filed by a person who had authority to dismiss pursuant to the statute. In this KEITH RAPP, JUDGE: case, there remains an open question as to ¶1 Claimant, Michael Carl Dolina, appeals whether the dismissal was filed by a person the Order on Appeal Affirming the Decision of delegated to exercise that right on behalf of the Trial Court entered by a three-judge panel Plaintiff. Hence, a question of law and fact of the Workers’ Compensation Court denying remains as to whether the trial court has lost Claimant’s request for a finding of a cumula- jurisdiction. tive trauma injury to his right shoulder.1 ¶13 This result also is consistent with the BACKGROUND holding of Watson v. Gibson Capital, L.L.C., 2008 OK 56, 187 P.3d 735. The current case differs ¶2 Claimant worked for Employer, Fabricut, from Watson only in that the voluntary dis- Inc., a producer of home-furnishing textiles, for missal in Watson was defective on its face forty-three years, most recently as an export (because it was signed by the plaintiff, not his sales manager. Claimant’s employment re- attorney) while in this case it is not. Id. ¶¶ quires him to travel extensively and carry a 13-14. Watson further shows that a motion to heavy sample case filled with fabric when he vacate pursuant to 12 O.S.2011 § 1031, the pro- travels. cedure employed by Plaintiff in this case, is the ¶3 On April 24, 2007, Claimant experienced a correct means to seek review when the validity popping in his right shoulder while lifting a of a dismissal is challenged. box at work for Employer. Claimant reported CONCLUSION the injury to Employer and Employer sent Claimant to an occupational medical clinic, ¶14 We find that the district court incorrectly One Source, in Tulsa on April 27. The doctor at held that it had no jurisdiction to consider One Source diagnosed Claimant with a right whether the dismissal in the case was legally shoulder sprain. Claimant returned to One effective. We remand this matter for further Source on May 1, 2007, and September 20, consideration as to whether a legally effective 2007. The diagnosis each time was right shoul- dismissal has divested the court of jurisdiction. der sprain and right shoulder bursitis and ten-

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 61 donitis. Claimant was also scheduled to be right shoulder from September 2007 to Decem- seen at One Source on September 27, 2007, but ber 2012. He also never told Employer he did not appear for his appointment. needed additional treatment during this time. ¶4 Claimant did not seek any additional ¶9 Claimant offered medical evidence in treatment for his right shoulder until Novem- support of his claim for a work-related cumu- ber 2012, when he saw his primary care physi- lative trauma injury. Employer offered medical cian, James Bailey, M.D., for an annual exami- evidence in support of denying the claim. nation and discussed his right shoulder issues. Dr. Bailey referred Claimant to Jay Lorton, ¶10 After the hearing, the workers’ compen- M.D., an orthopedic doctor. Dr. Lorton exam- sation trial court entered an Order Denying ined Claimant on November 27, 2012. Claim- Compensability, filed on November 12, 2013. ant told Dr. Lorton that “a few months ago he The court made the following findings: was trying to trim the hedges with handheld -1- manual clippers when he had some pain in his right shoulder. [Claimant] did notice some THAT claimant sustained admitted single bruising in his shoulder about a year ago as event injury to the RIGHT SHOULDER on well.” Dr. Lorton diagnosed Claimant with a April 24, 2007. [Employer] provided medical “[r]ight shoulder rotator cuff impingement treatment through September 27, 2007 (no- with probable chronic tear.” Dr. Lorton ordered show to medical appointment by claimant). an MRI for Claimant. -2- ¶5 After seeing Dr. Lorton, Claimant Claimant now couches his claim as injury approached Employer with his paperwork via cumulative trauma, rather than single from One Source and Dr. Lorton. Employer event, with date of awareness April 24, gave Claimant the necessary paperwork for a 2007 and last date of exposure in April 3013 workers’ compensation claim. Employer sub- [sic]. sequently notified Claimant that his claim for benefits was denied. -3- ¶6 On February 19, 2013, Claimant filed a The court finds that the major cause of Form 3 alleging he sustained a rotator cuff tear claimant’s condition is the single event to his right shoulder as the result of an employ- injury of April 24, 2007. ment-related cumulative trauma injury. He listed his date of accident as April 24, 2007, on -4- his Amended Form 3. THAT, finally, the court finds that cumula- ¶7 Employer filed a Form 10 Answer and tive trauma, if any, sustained by claimant Pretrial Stipulation on May 23, 2013. Employer from April 24, 2007 to April, 2013, does not denied Claimant sustained an accidental injury rise to the level of a compensable cumula- arising out of and in the course of his employ- tive trauma injury. ment and asserted that Claimant had failed to The workers’ compensation trial court denied timely file his claim or give notice of the injury Claimant’s request for compensation. to Employer. Employer specifically asserted the statute of limitations as an affirmative defense. ¶11 Claimant appealed to a three-judge panel. After conducting oral arguments, the three- ¶8 The workers’ compensation trial court judge panel entered an Order on Appeal conducted a hearing on the issue of compensa- Affirming the Decision of the Trial Court, filed bility of Claimant’s claim of a cumulative on February 7, 2014. The three-judge panel trauma injury to his right shoulder. At trial, found the trial court’s Order Denying Com- Claimant testified that he felt a popping and pensability was not against the clear weight of discomfort in his right shoulder on April 24, the evidence nor contrary to law and unani- 2007, while lifting a box at work. He said that mously affirmed the trial court’s decision. his shoulder had progressively gotten worse and that any type of exertion made the right ¶12 Claimant appeals. shoulder worse. Claimant testified he does gar- STANDARD OF REVIEW dening, boating, and fishing and suffers discomfort when he does anything. He stated that ¶13 The appellate standard of review in a he did not receive any medical treatment to his workers’ compensation case is determined by

62 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 the law in effect on the date of injury. Williams Lifting as described by the claimant in his Companies, Inc. v Dunkelgod, 2012 OK 96, ¶ 18, deposition would not have caused an exac- 295 P.3d 1107, 1113. The date of injury in a erbation of the 2007 incident injury. If it cumulative trauma case is the date the claim- had, he would have experienced an imme- ant first becomes aware of the job-related inju- diate exacerbation of his pain. ry. American Airlines, Inc. v. Crabb, 2009 OK 68, ¶ ¶18 Claimant’s medical expert, Kenneth R. 8, 221 P.3d 1289, 1291. The Workers’ Compensa- Trinidad, D.O., also noted that Claimant stated tion Court found, and Claimant agrees, that at the examination that he sustained a specific Claimant’s date of awareness was April 24, 2007. injury to his right shoulder while working in This Court must apply the any competent evi- April 2007. Dr. Trinidad concluded that Claim- dence standard on review because the injury ant sustained a cumulative trauma injury due occurred prior to enactment of Section 3.6(C).2 to his “lifting a 70 pound sample bag working ANALYSIS as a salesman.” ¶14 On appeal, Claimant argues the Workers’ ¶19 At trial, Claimant testified he injured his Compensation Court erred because it misap- right shoulder while lifting a box at work on plied and misinterpreted the law on cumulative April 24, 2007. At that time, he felt a popping trauma by focusing on Claimant’s single-event sound and felt discomfort. Claimant did not injury rather than the aggravation of the April seek additional medical treatment from Sep- 24, 2007, injury. Although Claimant argues this tember 20, 2007, until he saw his primary care appeal presents a question of law, the issue on physician for his annual examination on appeal is whether the Workers’ Compensation November 20, 2012. Nor did Claimant notify Court’s finding that Claimant’s injury did not Employer of any problems to his right shoul- rise to the level of a compensable work-related der during this period. cumulative trauma injury and denying bene- ¶20 Although Claimant presented lay testi- fits is supported by competent evidence. mony and medical evidence in support of his ¶15 At trial, Employer presented expert med- contention that he sustained a work-related ical testimony in support of its contention that cumulative trauma injury, “it is not this court’s Claimant did not sustain a work-related cumu- duty to weigh the adduced evidence but sim- lative trauma injury. The report of Employer’s ply to canvass the facts to determine if the tri- medical expert, William R. Gillock, M.D., dated bunal’s decision is supported by competent June 26, 2013, notes that Dr. Gillock examined proof.” Yocum v. Greenbriar Nursing Home, 2005 Claimant and that Claimant stated he sus- OK 27, ¶ 8, n.11, 130 P.3d 213, 218, n.11. tained a specific injury at work in April 2007 ¶21 Based on the foregoing, this Court finds and that his right shoulder “popped and began the Workers’ Compensation Court’s denial of hurting.” Claimant also stated he did not Claimant’s cumulative trauma claim is sup- receive any additional medical treatment until ported by competent evidence and, therefore, he saw his primary care physician for his must be sustained. annual examination in 2012. Claimant was subsequently diagnosed with an unrepairable CONCLUSION rotator cuff tear. ¶22 The Order on Appeal Affirming the ¶16 Dr. Gillock determined that the major Decision of the Trial Court is sustained. cause of Claimant’s condition or injury is unre- lated to his employment because there is no ¶23 SUSTAINED. medical evidence of a work-related cumulative FISCHER, P.J., and THORNBRUGH, J., concur. trauma injury. Dr. Gillock further determined Claimant was not in need of any additional KEITH RAPP, JUDGE:

medical treatment. 1. As of February 1, 2014, the Workers’ Compensation Court shall be known as the Workers’ Compensation Court of Existing Claims for ¶17 In his supplemental August 4, 2013, the purpose of hearing claims that arise before February 1, 2014. 85A medical report, Dr. Gillock opined that Claim- O.S. Supp. 2013 § 400. 2. The amendment authorizing review of an order or award to ant’s employment since the 2007 injury had not determine whether it was against the clear weight of the evidence aggravated or caused a worsening of his origi- applies to claims for injuries that occur after the effective date of the nal injury. He further determined: amendment, 85 O.S. Supp. 2010 § 3.6(C), effective November 1, 2010. Section 3.6(C) was repealed and renumbered effective August 26, 2011 as 85 O.S. Supp. 2011, § 340(D). Both of these statutes require this Court to apply a clear weight of the evidence standard of review.

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 63 NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge Twenty-first Judicial District, Office 2 Cleveland Garvin and McClain Counties This vacancy is due to the resignation of the Honorable Greg Dixon, effective January 18, 2015. To be appointed to the office of District Judge one must be a registered voter of the respective judicial district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointee shall have had a minimum of four years experience as a licensed practicing attorney, or as a judge of a court of record, or both, within the State of Oklahoma. Application forms can be obtained on line at www.oscn.net under the link to Judicial Nominating Commission, or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 N. Lincoln, Suite 3, Oklahoma City, Oklahoma 73105, (405) 556-9862. Applica- tions must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, January 30, 2015. If applications are mailed, they must be postmarked by midnight, January 30, 2015. Stephen Beam, Chairman Oklahoma Judicial Nominating Commission

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF D’ARWYN KEITH DANIELS, SCBD #6200 TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if D’Arwyn Keith Daniels should be reinstated to active membership in the Oklahoma Bar Association. Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Okla- homa City, Oklahoma, at 9:30 a.m. on Friday, February 27, 2015. Any person wishing to appear should contact Gina Hendryx, Gen- eral Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007. PROFESSIONAL RESPONSIBILITY TRIBUNAL

64 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 CALENDAR OF EVENTS

January

14 OBA Indian Law Section; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Susan Arkeketa 918-295-9720 15 Supreme Court Swearing In Ceremony; 1:30 p.m.; Supreme Court Courtroom, State Capitol, Oklahoma City; Contact Office of the Chief Justice 405-558-9100 OBA Board of Governors meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact John Morris Williams 405-416-7000 OBA Young Lawyers Division Kick it Forward meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Kaleb Hennigh 580-234-4334 28 Ruth Bader Ginsburg Inn of Court; 5:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Donald Lynn Babb 405-235-1611 February

3 OBA Licensed Legal Intern Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Candace Blalock 405-238-0143 OBA Government and Administrative Law Practice Section; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact John Miley 405-557-7146 16 OBA Board of Bar Examiners meeting; 9 a.m.; 5 OBA Mock Trial Committee meeting; 5:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Oklahoma Oklahoma Bar Center, Oklahoma City; Contact Board of Bar Examiners 405-416-7075 Judy Spencer 405-755-1066 OBA Alternative Dispute Resolution Section 6 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Ken Stoner 405-705-2910 City; Contact Ken Stoner 405-705-2910 19 OBA Closed-Martin Luther King, Jr. Day Observed OBA Board of Editors meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Carol Manning 21-22 OBA Law-related Education Legislators Law 405-416-7016 School; 9:30 a.m.; Oklahoma Bar Association; Contact Wanda Reece 405-416-7000 13 OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact 23 Oklahoma Bar Foundation Executive Committee Suzanne Heggy 405-556-9612 meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Nancy Norsworthy 405-416-7070 OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with OSU Tulsa, Oklahoma Bar Foundation Trustee orientation, Tulsa; Contact Michelle Smith 405-759-2333 lunch and meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Nancy Norsworthy 16 OBA Closed – Presidents Day observed 405-416-7070

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 65 Disposition of Cases Other Than by Published Opinion

COURT OF CRIMINAL APPEALS (3). After extensive pre-trial hearings, the district Thursday, December 11, 2014 court ruled that Appellee could cross-examine the complaining witness or otherwise introduce F-2012-1017 — Erika Leann Voorhees, Appel- evidence concerning his prior statements regard- lant, was tried by jury for the crimes of Count ing sexual molestation committed by another I - Trafficking in Illegal Drugs, Count II - Pos- perpetrator. The State objected that this evidence session of a Firearm During Commission of a was inadmissible under the Rape Shield stat- Felony, Count III - Public Intoxication (misde- ute, 12 O.S.2011, § 2412. The trial court appar- ameanor), and Count IV - Unlawful Possession ently al-lowed the defense inquiry at trial. The of Drug Paraphernalia (misdemeanor) in Case State appeals the following question reserved: No. CF-2011-244 in the District Court of Wash- THE DISTRICT COURT ERRED WHEN FIND- ington County. The jury returned a verdict of ING THAT THE RAPE SHIELD STATUTE guilty and recommended as punishment 20 WAS NOT APPLICABLE AND WHEN years imprisonment and a $50,000 fine on ALLOWING EVIDENCE TO BE PRESENTED Count I, 10 years and a $10,000 fine on Count TO THE JURY REGARDING THE VICTIM’S II, 30 days and a $100 fine on Count III and one ABUSE BY A DIFFERENT PERPETRATOR year and a $1,000 fine on Count IV. The trial OTHER THAN THE ACCUSED. The State has court sentenced accordingly and ordered perfected its appeal. The reserved question is Count II to run consecutively to Count I, and DENIED. Opinion by: Lewis, P.J.; Clancy Counts III and IV to run concurrently with Smith, V.P.J., Concurs in Results; Lumpkin, J., Count I. From this judgment and sentence Concurs; A. Johnson, J., Concurs. Erika Leann Voorhees has perfected her appeal. AFFIRMED. Opinion by: Smith, V.P.J.; Lewis, M-2013-918 — Appellant, Robert Dewayne P.J., concur; Lumpkin, J., concur in results; A. Cox, appeals to this Court from an order of the Johnson, J., concur. District Court of Bryan County, entered by the Honorable Mark R. Campbell, District Judge, F-2013-714 — Rebecca Louise Bryan, Appel- adjudging Appellant to be in direct contempt lant, was tried by jury for the crime of First of court and sentencing him to six months in Degree Murder in Case No. CF-2011-431 in the the Bryan County Jail, during proceedings in District Court of Canadian County. The jury Case No. CF-2012-522. REVERSED and RE- returned a verdict of guilty and recommended MANDED to the District Court for further as punishment life imprisonment without the proceedings to provide Appellant an opportu- possibility of parole. The trial court sentenced nity to adduce evidence or argument relevant accordingly. From this judgment and sentence to guilt or punishment. Opinion by: Lewis, P.J.; Rebecca Louise Bryan has perfected her appeal. Smith, V.P.J., Dissents; Lumpkin, J., Concurs; AFFIRMED. Opinion by: Smith, V.P.J.; Lewis, Johnson, J., Concurs. P.J., concur; Lumpkin, J., concur; A. Johnson, J., concur. F-2013-1144 — Larin Skyler Maxwell, Appel- lant, was tried by jury and found guilty of Friday, December 12, 2014 Counts 1 and 3, forcible sodomy, in violation of SR-2013-1187 — Appellant, State of Oklaho- 21 O.S.2011, § 888, in the District Court of ma, appeals a question of law reserved in con- Hughes County, Case No. CRF-2012-2. The nection with evidentiary rulings of the district jury sentenced Appellant to seven (7) years court in State v. Carson, Tulsa County Case No. imprisonment in each count. The Honorable CF-2010-2777. Appellee Curt Edward Carson Timothy L. Olsen, Associate District Judge, was charged with six counts of lewd molesta- pronounced the judgment according to the tion. The jury acquitted Appellee on three verdicts, ordered the sentences served consec- counts and failed to reach a verdict on three utively, and imposed a five (5) year period of others, which remain pending. The Court has post-imprisonment community supervision. jurisdiction of the question reserved following The trial court sentenced accordingly. From the judgments of acquittal. 22 O.S.2011, § 1053 this Judgment and Sentence, Larin Skyler Max-

66 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 well has perfected his appeal. AFFIRMED. The Petition for Writ of Certiorari is DENIED, Opinion by: Lewis, P.J.; Clancy Smith, V.P.J., and the Judgment and Sentence of the trial court Concurs; Lumpkin, J., Concurs; A. Johnson, J., is AFFIRMED. Opinion by: Per Curiam; Lewis, Concurs. P.J., Concurs; Smith, V.P.J., Concurs; Lumpkin, J., Concurs; A. Johnson, J., Concurs. F-2013-766 — Garry R. West, Appellant, was convicted, after a bench trial, of (count one) F-2013-1104 — Jeremy Alan Pendleton, aggravated possession of child pornography in Appellant, was tried by jury for the crimes of violation of 21 O.S.2011, § 1040.12a, and (count Second Degree Murder (Count 2) and Assault two) unlawfully accessing a computer system and Battery with a Dangerous Weapon (Count or network to violate the Oklahoma statutes in 3), both After Former Conviction of Two or violation of 21 O.S.2011, § 1958, in Payne Coun- More Felonies, in Case No. CF-2010-149 in the ty district court case number CF-2012-104, District Court of Canadian County. The jury before the Honorable Stephen R. Kistler, Asso- returned a verdict of guilty and set punishment ciate District Judge. The trial court sentenced at ninety-nine years imprisonment on Count 2 West to twenty-three (23) years on count one and thirty years imprisonment on Count 3. The and five (5) years on count two, and ordered trial court sentenced accordingly and ordered that the sentences be served concurrently. From the sentences to be served consecutively. From this Judgment and Sentence, Garry R. West has this judgment and sentence Jeremy Alan Pendle- perfected his appeal. AFFIRMED. Opinion by: ton has perfected his appeal. The Judgment and Lewis, P.J.; Clancy Smith, V.P.J., Concurs in Sentence of the District Court is AFFIRMED. Results; Lumpkin, J., Concurs; A. Johnson, J., Opinion by: Johnson, J.; Lewis, P.J., concurs; Concurs in Results. Smith, V.P.J., concurs; Lumpkin, J., concurs. F-2014-26 — Christopher Aaron Charlton, Monday, December 15, 2014 Appellant, was tried by jury for the crimes of F-2013-1128 — Carlos G. Sanchez, Appellant, Assault and Battery with a Deadly Weapon was tried by jury for the crimes of Aggravated (Count 1), Feloniously Pointing a Firearm Trafficking in Illegal Drugs (Count 1) and Pos- (Count 2), both After Former Conviction of sessing a Firearm While Committing a Felony Two or More Felonies, and Assault and Battery (Count 2) in Case No. CF-2012-739 in the Dis- (Count 3) in Case No. CF-2012-3026 in the Dis- trict Court of Canadian County. The jury re- trict Court of Tulsa County. The jury returned a turned a verdict of guilty and recommended as verdict of guilty and recommended as punish- punishment thirty years imprisonment and a ment life imprisonment on Count 1, twenty $50,000.00 fine on Count 1 and two years years imprisonment on Count 2, and ninety imprisonment on Count 2. The trial court sen- days imprisonment on Count 3. The trial court tenced accordingly and ordered the sentences sentenced accordingly and ordered the sen- to be served concurrently. From this judgment tences to be served concurrently. From this and sentence Carlos G. Sanchez has perfected judgment and sentence Christopher Aaron his appeal. The Judgment and Sentence of the Charlton has perfected his appeal. The Judg- District Court is AFFIRMED. Opinion by: John- ment and Sentence of the District Court is son, J.; Lewis, P.J., concurs; Smith, V.P.J., con- AFFIRMED. Opinion by: A. Johnson, J.; Lewis, curs; Lumpkin, J., concurs. P.J., concurs; Smith, V.P.J., concurs; Lumpkin, J., concurs. Wednesday, December 17, 2014 C-2014-247 — Mark Wayne Cordell, Peti- F-2013-812 — Appellant Alphie Phillip Mc- tioner, entered a negotiated plea of nolo conten- Kinney was tried by jury and convicted of Traf- dere to Distribution of Methamphetamine ficking in Illegal Drugs (Cocaine), After Former Within 2000 Feet of a School, After Conviction Conviction of A Felony (Count I); Possession of of Three Felonies, in Pontotoc County District a Controlled Dangerous Substance (Methy- Court Case No. CF-2013-417. The Honorable C. lone), After Former Conviction of a Felony Steven Kessinger, Special Judge, accepted the (Count II); Possession of a Controlled Danger- plea agreement and sentenced Petitioner to ous Substance (Marijuana) (Count III); Posses- twenty-two years imprisonment, with all but the sion of a Controlled Dangerous Substance first eight years suspended, and with credit for without a Tax Stamp, After Former Conviction time served. Petitioner filed a pro se request to of a Felony (Count IV); Possession of a Con- withdraw his plea. After a hearing the district trolled Dangerous Substance (Alprazolam), court denied the motion. This appeal followed. After Former Conviction of a Felony (Count

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 67 V); and Possession of Drug Paraphernalia guilty and was convicted of Count 1: Posses- (Count VI), Case No. CF-2012-791, in the Dis- sion of a Controlled Dangerous Substance trict Court of Tulsa County. The jury recom- (PCP), after former conviction of two or more mended as punishment twenty (20) years felonies; Count 2: Escape from a Peace Officer, imprisonment and a $25,000.00 fine in Count I; misdemeanor; and Count 3: Driving While five (5) years imprisonment and a $1,000.00 Under the Influence of Drugs, misdemeanor. fine in Count II; four (4) years imprisonment He was sentenced to twenty-five years on and a $1,000.00 fine in Count III; one (1) year Count 1, and to six months on Counts 2 and 3, imprisonment and a $1,000.00 fine in Count IV; with all of the sentences suspended and or- two (2) years imprisonment and a $1,000.00 dered to run concurrently with each other and fine in Count V; and a $1,000.00 fine in Count with the sentences in Case Nos. CF-2009-4159 VI. The trial court sentenced accordingly, order- and CF-2010-4059. On January 16, 2013, the ing the sentences to run consecutive except for State filed applications to revoke Appellant’s Count IV which was ordered to run concurrent suspended sentences. On June 11, 2013, the to Count III. It is from this judgment and sen- State filed amended applications to revoke tence that Appellant appeals. The Judgments Appellant’s suspended sentences. On July 30, and Sentences in Counts I, II, IV, and VI are 2013, the revocation hearing was held before AFFIRMED. The Judgments and Sentences in Judge Elliott and Appellant’s four concurrent Counts III and V are REVERSED AND RE- twenty-five year suspended sentences were MANDED WITH INSTRUCTIONS TO DIS- revoked in full. AFFIRMED. Opinion by: Smith, MISS. Appellant’s Motion for Oral Argument V.P.J.; Lewis, P.J., Concurs; Lumpkin, J., Con- is DENIED. Pursuant to Rule 3.15, Rules of the curs; Johnson, J., Concurs. Oklahoma Court of Criminal Appeals, Title 22, Thursday, December 18, 2014 Ch.18, App. (2014), the MANDATE is OR- DERED issued upon the delivery and filing of F-2013-788 — Appellant, Travis Lenard Mi- this decision. Opinion by: Lumpkin, J.; Lewis, kado, was tried by jury and convicted of P.J., concur; Smith, V.P.J., concur in part/dis- Attempting to Elude a Police Officer (Count 1), sent in part; A. Johnson, J., concur in results. Possession of a Controlled Dangerous Sub- stance (misdemeanor - Marijuana ) (Count 2), RE-2013-753 — James Anderson Shelton, and Possession of a Controlled Dangerous Sub- Appellant, appeals from the revocation in full stance (Methamphetamine) (Count 3), after of his four concurrent twenty-five year sus- Former Conviction of Two or More Felonies, in pended sentences in Case Nos. CF-2009-4159, District Court of Oklahoma County Case No. CF-2010-4059 and CF-2010-4620 in the District CF-2010-2395. The jury recommended as pun- Court of Oklahoma County, by the Honorable ishment imprisonment for one (1) year and a Ray C. Elliott, District Judge. In Case No. $1,000.00 fine in Count 1, a $500.00 fine in CF-2009-4159, Appellant pled guilty and was Count 2, and imprisonment for nine (9) years convicted of Count 1: Distribution of a Con- in Count 3. The trial court sentenced accord- trolled Dangerous Substance (Cocaine base), ingly and ordered the sentences on Counts 1 after former conviction of two or more felonies; and 3 to run concurrently with each other. It is Count 2: Possession of Proceeds, after former from this Judgment and Sentence that Appel- conviction of two or more felonies; and Count lant appeals. The Judgment and Sentences of 3: Obstructing an Officer, misdemeanor. He the District Court as to Counts 1 and 3 are was sentenced to twenty-five years on Counts affirmed. Appellant’s Conviction for misde- 1 and 2, and to six months on Count 3, with all meanor Possession of a Controlled Dangerous of the sentences suspended and ordered to run Substance in Count 2 REVERSED with instruc- concurrently with each other and with the sen- tions to dismiss. This matter is remanded to the tences in Case Nos. CF-2010-4620 and CF-2010- District Court for entry of Judgment and Sen- 4059. In Case No. CF-2010-4059, Appellant tence consistent with this Opinion. Opinion by: pled guilty and was convicted of one count of Lumpkin, J.; Lewis, P.J., concur; Smith, V.P.J., Distribution of a Controlled Dangerous Sub- concur in results; A. Johnson, J.:, concur in stance (Cocaine base), after former conviction results. of two or more felonies. He was sentenced to a term of twenty-five years, all suspended and RE-2014-204 — On January 27, 2010, Keith D. ordered to run concurrently with the sentences McBride, represented by counsel, entered a in Case Nos. CF-2009-4159 and CF-2010-4620. guilty plea to Driving Under the Influence of In Case No. CF-2010-4620, Appellant pled Alcohol (DUI), second offense; Eluding a Police

68 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 Officer; Transporting an Open Container of Brian Henderson, Associate District Judge, Beer; Driving Without a Driver’s License; Fail- sentenced accordingly and ordered Appel- ure to Carry Insurance; Failure to Stop at a Stop lant’s sentences to run consecutively. Appellant Sign; Unsafe Lane Use; and Failure to Signal, must serve 85% of his sentences before being all in Tulsa County Case No. CF-2009-5914. eligible for parole consideration. 21 O.S.Supp. McBride was sentenced to four years, all sus- 2007, § 13.1. It is from these judgments and pended, for the DUI, one year, suspended, for sentences that Appellant appeals. AFFIRMED. the eluding offense and assessed fines and Opinion by: Lumpkin, J.; Lewis, P.J., concur; costs for the remaining offenses. On August 24, Smith, V.P.J.:, concur in part/dissent in part; A. 2012, the State filed a second application to Johnson, J., concur. revoke McBride’s remaining suspended sen- COURT OF CIVIL APPEALS tence alleging various violations of his terms (Division No. 1) and conditions of probation, including failure Friday, December 5, 2014 to report to his probation officer, failure to notify his probation officer of a change of ad- 110,736 — Matthew Lacy and Staci Christine dress, and becoming delinquent on probation Lacy, Plaintiffs/Appellees, vs. S&L Paving, supervision fees. On January 12, 2014, the State Inc., Defendant/Appellant. Appeal from the filed its second amended application to revoke District Court of Murray County, Oklahoma. alleging McBride committed the new offense of Honorable Aaron Duck, Trial Judge. Appellant First Degree Burglary and Domestic Assault S & L, Inc. Paving (S & L) contends the trial and Battery as alleged in Tulsa County Case court erred by construing too narrowly a term No. CF-2014-55. On February 19, 2014, the Dis- in its contract for paving a parking lot which trict Court of Tulsa County, the Honorable Wil- imposed a limitation on a ten-year warranty. liam C. Kellough, District Judge, revoked Mc- S&L was sued for breach of that warranty Bride’s suspended sentence in full. The revoca- when portions of the re-paved parking lot tion of McBride’s suspended sentence is AF- failed. After review of the record, we conclude FIRMED. Opinion by: A. Johnson, J.; Lewis, the findings of fact and conclusions of law of P.J., concurs; Smith, V.P.J., concurs; Lumpkin, J., the trial court adequately explain the trial concurs. court’s decision. AFFIRMED. Opinion by Heth- erington, V.C.J.; Joplin, P.J., and Buettner, J., Friday, December 19, 2014 concur. RE-2013-848 — Appellant, Robert Dewayne 112,025 — B.L. Cozad, Personal Representa- Cox, appeals to this Court from an order of the tive of the Estate of Irma Nell Rogers, Deceased, District Court of Bryan County, entered by the Plaintiff/Appellant, vs. Jimmie Cozad, Defen- Honorable Mark R. Campbell, District Judge, dant/Appellee. Appeal from the District Court adjudging Appellant to be in direct contempt of Pittsburg County, Oklahoma. Honorable of court and sentencing him to six months in James D. Bland, Judge. Appellant, B.L. Cozad, the Bryan County Jail, during proceedings in Personal Representative of the Estate of Irma Case No. CF-2012-522. REVERSED and RE- Rogers, seeks review of the trial court’s order MANDED to the District Court for further denying Appellant’s request for cancellation of proceedings to provide Appellant an opportu- the deed conveyed from the deceased, Irma nity to adduce evidence or argument relevant Rogers, to Jimmie Cozad, as well as the trial to guilt or punishment. Opinion by: Lewis, P.J.; court’s denial of Appellant’s request for attor- Smith, V.P.J., Dissents; Lumpkin, J., Concurs; ney fees pursuant to 12 O.S. §936. Ms. Rogers Johnson, J., Concurs. conveyed 110 acres of real property to Jimmie Monday, December 22, 2014 Cozad by means of a joint tenancy deed on February 18, 2005. The record indicates Jimmie F-2013-203 — Appellant, Jeffery Dale Bing- Cozad offered no financial consideration for ley, was tried by jury and convicted of Child the property conveyance. Shortly before her Sexual Abuse (Count I), and Possession of death in 2011, Ms. Rogers filed suit to cancel Child Pornography (Count II), in the District the deed, her estate was substituted in the Court of LeFlore County, Case No. CF-2010-21. cause after her death. The court found Ms. The jury recommended as punishment impris- Rogers’ competency was not challenged at trial onment for forty (40) years in Count I and and all evidence demonstrated she was both imprisonment for twenty (20) years and a capable and willing to manage her own affairs $25,000.00 fine in Count II. The Honorable as she saw fit. As a result, the trial court

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 69 declined to shift the burden of proof to Jimmie fees under §936. The order of the trial court is Cozad to prove the deed conveyance was com- AFFIRMED. Opinion by Joplin, P.J.; Hethering- pletely devoid of undue influence, and the ton, V.C.J., and Buettner, J., concur. burden remained on the estate to prove the 112,046 — In the Matter of the Estate of Bruce conveyance was the result of undue influence. Howard Martin, Deceased: Sean Michael Bran- In re Estate of Holcomb, 2002 OK 90, ¶32, 63 P.3d non, Claimant/Appellee, vs. James Patterson, 9, 19. Appellant raised two propositions of Personal Representative of the Estate of Bruce error on appeal. First, Appellant argued the Howard Martin, Deceased, Respondent/ trial court abused its discretion when it failed Appellant. Appeal from the District Court of to shift the burden of proof. Second, Appellant Caddo County, Oklahoma. Honorable S. Wyatt argued the trial court abused its discretion Hill, Judge. Respondent/Appellant James Pat- when the court denied Appellant’s request for terson, as Personal Representative of the Estate attorney fees based on the trial court’s award of Bruce Howard Martin, Deceased (Represen- on the indebtedness, arguing the debt was on tative of Estate) appeals the trial court’s order an open account, and attorney fees were war- directing Representative to pay a claim made ranted pursuant to 12 O.S. §936. It appears against the Estate by Claimant/Appellee Sean from the record the trial court’s most signifi- Michael Brannon. The record supports the trial cant finding with respect to Ms. Rogers was court’s finding that Decedent had asked for a that she was lucid, intelligent and competent in loan, Brannon had sent checks to Decedent and her own affairs prior to her death, including paid off Decedent’s mortgage, and Brannon four years before her death when she conveyed was entitled to reimbursement from Estate. the 110 acres to Jimmie Cozad. “The courts The trial court’s finding that the claim was before declaring the relationship confidential valid and directing Representative to pay it is will require a relation where there is weakness not clearly against the weight of the evidence on one side and strength on the other resulting or contrary to law and we affirm. AFFIRMED. in dependence or trust justifiably reposed in Opinion by Buettner, J.; Hetherington, V.C.J., the stronger. Thus the condition of the testator concurs, and Joplin, P.J., dissents. is always of critical importance.” In the Matter of Estate of Beal, 1989 OK 23, 769 P.2d 150, 155. 112,085 — Wells Fargo Bank, N.A., Plaintiff/ The trial court was faced with conflicting evi- Appellee, vs. Gloria M. Hood, Defendant/ dence and found no confidential relationship Appellant, Spouse, if any, of Gloria M. Hood, existed. The appellate court gives deference to John Doe and Jane Doe, Defendants. Appeal the trial court’s evaluation of the witnesses and from the District Court of Ottawa County, testimony. Beale v. Beale, 2003 OK CIV APP 90, Oklahoma. Honorable Robert G. Haney, Judge. ¶6, 78 P.3d 973, 975. In light of the strong evi- Defendant/Appellant Hood seeks review of dence showing Ms. Rogers was a competent the trial court’s order denying her motion to and able woman with a firm understanding of vacate the prior order granting the motion for her finances and affairs, we do not find the trial summary judgment of Plaintiff/Appellee Bank court’s determination that no confidential rela- on Bank’s claims to collect a promissory note tionship existed to be against the clear weight and foreclose a mortgage. In this appeal, Hood of the evidence. Appellant’s second proposi- asserts Bank lacked standing to enforce the tion of error alleged the trial court abused its note and mortgage, the mortgage was invalid discretion when it denied the estate’s motion and unenforceable, and the trial court conse- for attorney fees under 12 O.S. §936. Appellant quently abused its discretion in denying her admits there was no promissory note or nego- motion to vacate. Hood raised no issue con- tiable instrument, but asserts the borrowing cerning Bank’s production of the original note between Jimmie Cozad and Ms. Rogers was an bearing endorsements to it, rather challenging open account, as contemplated in §936(A) and only the validity of the endorsements. Conse- warrants the award of attorney fees under the quently, if the endorsements are valid, Bank statute. We have not found Oklahoma law in adequately demonstrated its standing to support of Appellant’s position that the casual enforce the note. Hood admitted in her answer borrowing and repayment of the debt between the copy of the endorsed note was a true and Ms. Rogers and her nephew was contemplated correct copy of the note she executed. Beyond as an open account for purposes of awarding her bald allegations, Hood offered no eviden- attorney fees under §936. The trial court did tiary materials of any kind at any time casting not abuse its discretion in denying attorney the authority of MortgageIt, Inc., as attorney in

70 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 fact for Estate Financial Services, Inc. to execute the clear weight of the evidence. AFFIRMED. the assignment from Estate Financial Services, Opinion by Joplin, P.J.; Hetherington, V.C.J., Inc. to MortgageIt, Inc. The authority of Mort- and Buettner, J., concur. gageIt, Inc. as attorney in fact for Estate Finan- 112,274 cial Services, Inc. was therefore presumed, and — In Re Marriage of: Angela Reed, the endorsement by Estate Financial Services, Petitioner/Appellant, vs. Kerry Reed, Respon- Inc. to MortgageIt, Inc. by MortgageIt, Inc. as dent/Appellee, vs. Reed Power Tongs Inc., attorney in fact for Estate Financial Services, Reed Land and Cattle, L.L.C., K & H Well Ser- Inc. was valid on its face. Bank, as assignee of vice, Inc., JKJ Oil and Gas, L.L.C., Gerald Reed, the note, also owned the mortgage, and, not- Heath Reed, and Betty Reed, Defendants/ withstanding the mortgage to MERS as “nomi- Appellees. Appeal from the District Court of nee” of the original lender, Bank possessed the Seminole County, Oklahoma Honorable Mar- right to enforce both the note and mortgage as tha Kilgore, Judge. Wife seeks review of the assignee of MortgageIt, Inc. AFFIRMED. Opin- trial court’s order denying her motion for new ion by Joplin, P.J.; Hetherington, V.C.J., and trial after the trial court granted the motion to Buettner, J., concur. dismiss of Defendants in her action for dissolution of the marriage and a division of marital 112,140 — Kenneth Limore and Reta Limore, assets against Husband. In this appeal, Wife Husband and Wife, Plaintiffs/Appellants, vs. asserts the trial court erred in dismissing Defen- The Unknown Heirs, Executor, Administra- dants based on the consent judgment in related tors, Devisees, Trustees, Assigns, and Unknown litigation between Husband and Defendants to Successors of Charles Vann, Deceased, Chero- which she was not a party. The record before us kee Indian Roll No. 19827, Defendants/Appel- does not contain the settlement agreement, pur- lees, The foregoing, if living, and if deceased, portedly approved by the trial court in the their unknown heirs, executors, administra- related litigation. But, given Defendants’ conces- tors, devisees and assigns, Defendants. Appeal sion of Husband’s proposed settlement of the from the District Court of Adair County, Okla- related litigation “on paper” in consideration of homa. Honorable Elizabeth Brown, Judge. the payment to him of some undisclosed Plaintiffs seek review of the trial court’s order amount “under the table,” the facts surround- granting judgment to the Defendants on Plain- ing the purported settlement of the related liti- tiffs’ claim to quiet title by adverse possession. gation cannot be considered as “undisputed.” In this appeal, Plaintiffs assert the trial court Moreover, unless expressly so denominated by erred as a matter of both law and fact in grant- the parties, a consent judgment is not ordinar- ing judgment to Defendants, and abused its ily entitled to preclusive effect. The evidence discretion in the admission of testimony. Plain- raises some question of the extent to which tiffs claim the trial court abused its discretion Husband, in the related litigation, adequately in admitting the testimony of the employee of represented the common interest of him and the Cherokee Nation Office of Real Estate Ser- Wife to establish his ownership in the Reed vices in spite of their invocation of the rule of family businesses. We therefore hold the trial sequestration. Under the circumstances of this court erred in granting the demurrer to the case, we cannot say the trial court abused its evidence and motion to dismiss of Defendants, discretion in permitting the designation of the and in denying Wife’s motion for new trial. tribal employee as representative of the Secre- The orders of the trial court are accordingly tary of the Interior, or in excluding him from reversed, and the cause remanded for further operation of the rule of sequestration, or in proceedings. REVERSED AND REMANDED. admitting his testimony. Plaintiffs concede Opinion by Joplin, P.J.; Hetherington, V.C.J., that, notwithstanding their erection of the and Buettner, J., concur. fence to enclose the Vann property with theirs, numerous people, including the remote heirs 112,857 — University of Oklahoma, Own of Charles Vann, entered upon and used the Risk Employer, Petitioner, vs. James Henson Vann property for the same recreational and and The Workers’ Compensation Court of hunting purposes as did the Plaintiffs. We Existing Claims, Respondents. Proceeding to believe this circumstance alone precludes a Review an Order of a Three-Judge Panel of The finding of clear and convincing evidence of Workers’ Compensation Court of Existing their “hostile” and “exclusive” possession of Claims. Employer seeks review of an order of a the property. We have reviewed the record, and three-judge panel of the Workers’ Compensa- hold the trial court’s judgment is not against tion Court of Existing Claims modifying an

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 71 order of the trial court awarding benefits for Appellees, and Pravin C. Aneja Trust, Plaintiff/ permanent partial disability to Claimant. In Appellee, vs. Great Plains Regional Medical this review proceeding, Employer challenges Center, Defendant/Appellant. Appeal from the the order of the three-judge panel as unsup- District Court of Beckham County, Oklahoma. ported by, and contrary to, the clear weight of Honorable Floyd Douglas Haught, Trial Judge. the evidence. Employer asserts the order of the Appeal by Great Plains Regional Medical Cen- three-judge panel is unsupported by the report ter (Hospital) of a judgment entered following of Claimant’s physician, Dr. Wilson, and Dr. a jury verdict in favor of Raji Aneja, as Trustee Wilson’s report is neither competent nor pro- and Personal Representative of the Pravin C. bative of any compensable injuries, because (1) Aneja Trust and Wife of the Deceased Pravin C. it is based on an inaccurate history omitting Aneja (Plaintiffs) on claims arising out of Hos- Claimant’s admitted previous injuries to his pital’s employment of gastroenterologist Pra- left knee in 1982 and 2008, and (2) Dr. Wilson vin C. Aneja (Decedent). HELD: Hospital did discerned no pre-existing permanent partial not object to either the jury instruction or to the impairment to Claimant’s left knee. The fact that general verdict forms used by the jury. Hospi- Dr. Wilson rated Claimant’s disability “over and tal’s motion objecting to Plaintiffs’ post-trial above any pre-existing disability” supports a motions to settle journal entry, for attorney fees conclusion that Dr. Wilson would not have and costs, and for a determination of interest, changed his rating if informed of Claimant’s with brief in support was untimely and these previous injuries. Further, the three-judge panel post-trial motions are not in the appellate was not required to totally reject Dr. Wilson’s record. Hospital failed to include a transcript opinion for lack of an accurate history, but rath- of any evidentiary hearing on attorney fees and er, because Dr. Porterfield discerned ten percent costs. The challenge to the award of attorney (10%) non-job-related pre-existing disability to fees is not preserved for appellate review and Claimant’s left knee, the three-judge panel was is not supported by evidence in the appellate free, in the exercise of its evidence weighing record. Any error in the jury instructions is not authority, to discount Dr. Wilson’s rating by the fundamental and other alleged errors are not ten percent (10%) non-job-related pre-existing properly preserved for review. The judgment disability discerned by Dr. Porterfield. SUS- entered on the jury’s verdicts is AFFIRMED. TAINED. Opinion by Joplin, P.J.; Hetherington, Opinion by Hetherington, V.C.J.; Joplin, P.J., V.C.J., and Buettner, J., concur. and Buettner, J., concur. 112,929 — In Re H.C. and H.C., Deprived 112,784 — Multiple Injury Trust Fund, Peti- Children: State of Oklahoma, Petitioner/Ap- tioner, vs. Leanna Sue Slaybaugh and The pellee, vs. James Covey, Respondent/Ap-pel- Workers’ Compensation Court of Existing lant. Appeal from the District Court of Musk- Claims, Respondents. Proceeding to Review an ogee County, Oklahoma. Honorable Thomas Order of The Workers’ Compensation Court of Alford, Judge. Respondent/Appellant James Existing Claims. Petitioner Multiple Injury Covey (Father) appeals an Order Terminating Trust Fund (MITF) seeks review of an order of Parental Rights. We hold the Order is funda- the Workers’ Compensation Court of Existing mentally deficient because it does not contain Claims, which found Respondent Leanna Sue the specific statutory provision upon which ter- Slaybaugh was PTD as a result of a combina- mination is based. We reverse the trial court’s tion of previous disability and her most recent Order and remand this matter to the trial court work-related injury. The undisputed evidence for the sole purpose of securing a proper order. shows Slaybaugh was previously physically On remand, the trial court is instructed to enter impaired at the time of her most recent injury an order identifying the statutory ground for based on the 1994 adjudication of PPD to the terminating Father’s parental rights. REVERSED back, and therefore was entitled to have her AND REMANDED WITH INSTRUCTIONS. injuries combined in order to proceed against Opinion by Buettner, J.; Joplin, P.J., concurs, and MITF. We sustain. SUSTAINED. Opinion by Hetherington, V.C.J., specially concurring with Buettner, J.; Joplin, P.J., and Hetherington, opinion. V.C.J., concur. Friday, December 12, 2014 112,878 — Michael Goddard, Plaintiff/Ap- 110,705 — Raji Aneja, as Trustee and Personal pellant, vs. State of Oklahoma, ex rel., Depart- Representative of The Pravin C. Aneja Trust and ment of Public Safety, Defendant/Appellee. Wife of the Deceased Pravin C. Aneja, Plaintiffs/ Appeal from the District Court of Garfield

72 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 County, Oklahoma. Honorable Paul K. Wood- prejudice to refiling pursuant to Okla.Sup. ward, Judge. Plaintiff/Appellant Michael L. Ct.R. 1.14. The judgment is AFFIRMED. Opin- Goddard appeals the trial court’s order deny- ion by Hetherington, V.C.J.; Joplin, P.J., and ing Goddard’s Motion to Vacate, or in the Buettner, J., concur. alternative, for New Trial, in which Goddard challenged a final judgment of revocation of 111,028 — Janet Waver, Plaintiff/Appellant, his driver’s license. Goddard’s Motion to vs. Sylvia Galberth, Defendant/Appellee. Vacate was a collateral attack on a final judg- Appeal from the District Court of Oklahoma ment and he has failed to show that the judg- County, Oklahoma. Honorable Barbara G. ment was void. The trial court did not abuse its Swinton, Trial Judge. This appeal brought by discretion in denying the motion and we affirm. Appellant Janet Weaver (Weaver), follows non- AFFIRMED. Opinion by Buettner, J.; Joplin, jury trial on issues raised in Weaver’s Petition P.J., and Hetherington, V.C.J., concur. To Partition Real Property and counter-claim of Appellee Sylvia Galberth (Galberth) regarding 112,979 — University of Oklahoma, Own her cost of improvements and valuation. The Risk #14839, Petitioner, vs. John W. Lloyd, Jr. trial court’s Journal Entry judgment was and The Workers’ Compensation Court of Exist- entered at the request of the parties, and set the ing Claims, Respondents. Proceeding to Review value of the partitioned home at $24,000. Fol- an Order of a Three-Judge Panel of The Workers’ lowing judgment and pursuant to journal entry Compensation Court of Existing Claims. Peti- order, Galberth tendered $12,000 to Weaver’s tioner University of Oklahoma (Employer), Own attorney in order to maintain possession of the Risk #14839, seeks review of an order of a home and buy out Weaver’s interest. Our three-judge panel of the Workers’ Compensa- review of the evidence presented at trial and tion Court of Existing Claims finding John W. consideration of issues raised on appeal reveals Lloyd, Jr. (Claimant) timely presented to a no legal error, the trial court ruling is not clear- licensed physician for treatment of his right ly contrary to the weight of the evidence pre- knee, as required by 85 O.S.2011 § 323(A). We sented at trial and we affirm. AFFIRMED. hold the part of 85 O.S. § 323(A) providing “or Opinion by Hetherington, V.C.J.; Joplin, P.J., the employee receives medical attention from a and Buettner, J., concur. licensed physician during the thirty-day period from the date a single event injury occurred” 111,536 — Revolutions Medical Corporation, does not apply to cumulative trauma injuries. f/k/a Maxxon, Inc., Plaintiff/Counter-Claim- Therefore, the panel’s order is contrary to law. ant/Defendant/Appellee, vs. Globe Medical The order of the three-judge panel is VACAT- Tech, Inc., Defendant/Counter-Claimant/ ED and the matter REMANDED for further Third-Party Plaintiff/Appellant, vs. Ronald L. proceedings. VACATED AND REMANDED. Wheet, an Individual, Third-Party Defendant/ Opinion by Buettner, J.; Joplin, P.J., and Hether- Appellee. Appeal from the District Court of ington, V.C.J., concur. Tulsa County, Oklahoma. Honorable Daman H. Cantrell, Trial Judge. Appeal of a judgment Friday, December 19, 2014 in favor of Appellee Revolutions Medical Cor- 111,007 — In Re the Marriage of Delores poration, formerly known as Maxxon, Inc., fol- Renee Banks and Kelly Wayne Banks: Delores lowing summary proceedings in a lawsuit alleg- Renee Banks, Petitioner/Appellee, vs. Kelly ing fraud, misrepresentation, and duress and Wayne Banks, Respondent/Appellant. Appeal seeking an accounting and rescission of the par- from the District Court of Washington County, ties’ agreements, side agreements, amendments Oklahoma. Honorable Kyra K. Williams, Trial to agreements, and joint ventures regarding the Judge. Appeal of the trial court’s division of development of medical devices. The trial court marital property made following a prior appeal granted rescission and ordered the return and/ in Case No. 108,261. HELD: The trial court’s or re-assignment of devices, designs, patent duty upon remand was to follow the appellate rights, and stock. HELD: Taking all inferences court’s opinion directing it to re-examine the in favor of Appellant Global Medical Tech, Inc., division of property according to law and the party opposing the motion for summary equity. Contrary to Respondent/Appellant’s judgment, and following review of the record contentions, we conclude the trial court pre- actually presented, we agree summary judg- cisely complied with the appellate court’s ment was inappropriate in this case. Reason- instructions on remand. Appellee’s request for able people could reach different conclusions appeal related attorney’s fee is denied without as to the undisputed facts, resulting in material

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 73 facts remaining in dispute for trial. The judg- appear was the result of unavoidable misfor- ment in favor of Appellee entered following tune. Finally, Parents allege the court erred in summary proceedings is reversed and the case terminating parental rights during a discovery is remanded for further proceedings. RE- hearing, when Parents’ termination hearing VERSED AND REMANDED. Opinion by was not scheduled to occur until three weeks Hetherington, V.C.J.; Joplin, P.J., and Buettner, later. “Because parents have a constitutionally J., concur. protected liberty interest in the legal bond with their children, we analyze a due process chal- 111,679 — Max R. Grunhof, Plaintiff/Appel- lenge to determine the procedural protections lant, vs. Mike Jacobs and First Pryority, Defen- required before that bond can be broken. See In dants/Appellees, and Gary Shamel, Defendant. re the Matter of A.M. & R.W., 2000 OK 82, ¶¶ Appeal from the District Court of Mayes County, 8-9, 13 P.3d 484, 487. The question in this case Oklahoma. Honorable Terry H. McBride, Trial is whether the Parents’ failure to appear at the Judge. After review of the appellate record, we January 7th pretrial proceeding provided the find no reversible error of law and the findings trial court with adequate grounds to grant the of facts and conclusions of law of the trial court default termination order. We find the default adequately explain the decision. The trial order terminating parental rights violated Par- court’s judgment filed April 29, 2013 is ents’ due process. This case presents issues AFFIRMED UNDER OK.SUP.CT.R. 1.202(d). similar to those presented in In the Matter of AFFIRMED. Opinion by HHetherington, V.C.J.; H.R.T., 2013 OK CIV APP 114, in which the Joplin, P.J., and Buettner, J., concur. court examined whether the parents’ appear- 111,723 — Ocean Burley, Petitioner/Appel- ance at several previous hearings, with an lant, vs. Bryson Burley, Respondent/Appellee. absence from a pretrial hearing date, provided Appeal from the District Court of McCurtain adequate grounds for a default termination of County, Oklahoma. Honorable Michael D. De- the parents’ parental rights. The H.R.T. court Berry, Judge. Petitioner/Appellant Ocean Bur- found the pretrial absence did not provide ley (Mother) appeals the Decree of Dissolution grounds for termination, due in large part to of Marriage awarding Respondent/Appellee the fact the parents’ attorney was present and Bryson Burley (Father) unsupervised stan- could have conducted the pretrial hearing to dard visitation with their two minor children. adequately represent the parents’ interests and We hold the trial court did not abuse its dis- proceed to trial without delay. The present case cretion by awarding Father unsupervised visi- also had Parents’ attorneys present to ade- tation. AFFIRMED. Opinion by Buettner, J.; quately conduct the issues presented at pretrial Joplin, P.J., and Hetherington, V.C.J., concur. and proceed to trial without delay. The pretrial should not have been summarily converted 112,807 — In the Matter of E.D.J. and D.J.H., into a termination hearing. As recounted in Deprived Children: James Hubbard and Misty H.R.T., “The integrity of the family unit and Johnson, Appellants, vs. State of Oklahoma, preservation of the parent-child relationship Appellee. Appeal from the District Court of command the highest protection in our soci- Grady County, Oklahoma. Honorable John ety...Termination of a parent’s ‘parental rights Herndon, Judge. Appellants, Mother and Fa- is too serious to permit procedural shortcuts.’” ther of the alleged deprived children, seek In the Matter of H.R.T., 2013 OK CIV APP 114, ¶ review of the trial court’s order granting the 22. The trial court’s denial of Parents’ motion to default, consent termination of their parental vacate the default judgment terminating their rights. Mother and Father raise four proposi- parental rights constituted an abuse of discre- tions of error in their appeal. First, Parents tion. The order of the trial court is reversed and allege the court erred in granting the State’s this cause remanded. REVERSED AND RE- requested default termination for Parents’ fail- MANDED. Opinion by Joplin, P.J.; Hethering- ure to appear at a pretrial hearing that had al- ton, V.C.J., and Buettner, J., concur. ready been conducted and completed in absen- tia of the parents. Second, Parents allege the 112,932 — Beacon Sales Acquisition, Inc. trial court erred granting a default termination d/b/a Shelter Distribution, Plaintiff/Counter- without a hearing to determine if there was Defendant/Appellee, vs. Statewide Exteriors, clear and convincing evidence that termination Inc., Defendant, and Darrel Christian a/k/a was in the children’s best interests. Third, Par- Darrel G. Christian a/k/a Darrel Gene Chris- ents allege the trial court erred in terminating tian, Defendant/Counter-Claimant/Appel- parental rights, because Parents’ failure to lant. Appeal from the District Court of Tulsa

74 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 County, Oklahoma. Honorable Daman H. decision of the district court granting summary Cantrell, Judge. Defendant/Counter-Claim- judgment and quieting title to certain real ant/Appellant Darrel Gene Christian appeals property in favor of Plaintiff/Appellee Harold from summary judgment granted to Plaintiff/ Nunn (Nunn). We find the district court com- Counter-Defendant/Appellee Beacon Sales mitted no error in granting summary judgment Acquisition, Inc., d/b/a Shelter Distribution in favor of Nunn in his action to quiet title to (Shelter). Shelter sought judgment for breach the Property against the Miners. The Miners’ of contract against Defendant Statewide Exteri- primary defense to Nunn’s action constituted ors, Inc., and for breach of guaranty against an impermissible collateral attack upon the Christian. Statewide failed to answer and the prior judgment rendered in favor of Nunn and trial court entered default judgment against it. against the Miners. In accordance with 12 The court then granted Shelter’s Motion for O.S.Supp.2002 § 735(A)(2) and 12 O.S.2001 § Summary Judgment against Christian. It is 759(C)(2), Nunn filed a notice of renewal of undisputed that Christian did not personally judgment in Pontotoc County case number C- sign the guaranty and that the guaranty was 2001-611 in both 2006 and 2011, which extend- signed by an agent of Statewide. The record ed his time in which to execute upon such shows a dispute of material fact of whether judgment. Because the Miners’ right, title and Statewide’s agent was authorized to bind interest in the Property was conveyed to Nunn Christian individually. It is also unclear wheth- by the Pontotoc Co. Journal Entry, the Miners er the judgment disposed of Christian’s coun- could not claim the Property as their home- terclaims. We reverse and remand for further stead in accordance with 31 O.S.2001 §1. proceedings. REVERSED AND REMANDED. Accordingly, the decision of the district court is Opinion by Buettner, J.; Joplin, P.J., and Hether- hereby affirmed. AFFIRMED. Opinion from ington, V.C.J., concur. Court of Civil Appeals, Division II by Fischer, P.J.; Rapp, J., and Thornbrugh, J., concur. (Division No. 2) Wednesday, December 10, 2014 110,804 — Scott Sawyer, Plaintiff/Appel- lant/Counter-Appellee, vs. Glenn D. Sawyer, 111,945 — Gwendolyn Plante, Appellant, vs. Kenneth L. Sawyer and Joy Wise a/k/a Saw- Summer Eakin, Appellee. Appeal from Order yer, jointly and severally, Defendants/Appel- of the District Court of Tulsa County, Hon. Mil- lees, and Kenneth L. Sawyer and Joy Wise, lie Otey, Trial Judge. Plaintiff/Appellant Gwen- individually and as Co-Power of Attorneys for dolyn Plante appeals the dismissal of her cause their mother, Janice Sawyer; Glenn D. Sawyer; of action against Summer Eakin for breach of Gladys Sawyer Box; Don R. Sawyer; Diana contract. As Hamid v. Sew Original, 1982 OK 46, Sawyer Hash and Roger L. Sawyer, all indi- 645 P.2d 496 makes clear, Plante must file a viduals, Counterclaim Plaintiffs/Appellees/ record on appeal showing that the district Counter-Appellants. Appeal from Order of the court committed some error. By failing to District Court of Tulsa County, Hon. Carlos J. include the contract in the record, Plante has Chappellee, Trial Judge. This appeal and coun- failed to provide this Court with a record ter-appeal involve conflicting claims between showing that the district court erred in dis- family members to a tract of land and funds missing her case. Consequently, we must pre- deposited in six separate bank accounts, all sume that the district court did not err. The held in joint tenancy. The appealed order is not dismissal of the district court is affirmed. within that class of orders we may review. It is AFFIRMED. Opinion from Court of Civil not a final order or judgment. Jones v. Tubbs, Appeals, Division II by Fischer, P.J.; Rapp, J., 1993 OK 118, ¶ 0, 860 P.2d 234. The order is not and Thornbrugh, J., concur. an interlocutory order appealable by right, nor 111,795 — Larry Miner and Cindy Miner, as has it been certified by the district court as Individuals, and Larry Miner and Cindy Miner such. Consequently, this Court lacks appellate d/b/a The Floorstore, and the Occupants, jurisdiction to review the order appealed. Appellants, vs. Harold David Nunn, Appellee. APPEAL DISMISSED. Opinion from Court of Appeal from Order of the District Court of Civil Appeals, Division II by Fischer, P.J.; Rapp, McClain County, Hon. Charles Gray, Trial J., and Thornbrugh, J., concur. Judge. Defendants/Appellants Larry Miner Tuesday, December 16, 2014 and Cindy Miner, as individuals and Larry Miner and Cindy Miner d/b/a The Floor Store, 112,419 — Bedford Energy, Inc., Plaintiff/ and the Occupants (the Miners) appeal the Appellant, vs. Universal Energy Plus, LLC,

Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 75 Defendant/Appellee. Appeal from Order of 111,353 — In re the Marriage of: Michael the District Court of Logan County, Hon. Louis Washburn, Petitioner/Appellant, vs. Sunny A. Duel, Trial Judge. Plaintiff appeals from an Washburn, Respondent/Appellee. Proceeding order dismissing with prejudice its action to to review a judgment of the District Court of foreclose two mortgages on grounds that the Tulsa County, Oklahoma, Hon. Martha Rupp action is barred by the statute of limitations. A Carter, Trial Judge. Petitioner Michael Wash- review of the record reveals that Plaintiff lacked burn (Father) appeals the district court’s deci- standing to bring this action. While dismissal sion that his relocation to Texas would not be was proper under the facts presented, the in the best interests of his minor child J.W. Supreme Court has indicated that foreclosure Mother did not respond to Father’s appeal. actions dismissed on grounds that the foreclos- While conducting a routine jurisdictional check ing plaintiff lacked standing should be dis- for valid service of the petition on the non- missed without prejudice in order to afford an responding Mother, this Court found that the opportunity for the action to be re-filed in the parties had entered into an agreed modifica- name of the proper party. We therefore affirm tion of their divorce decree in November 2013, dismissal of the action but reverse the determi- which appears to allow Father to relocate to nation that the dismissal is with prejudice. We Texas with J.W. No notice of this modified remand with instructions to enter an order decree appears in the appellate record, and the dismissing the case without prejudice. We parties sent no notice to this Court. On Septem- express no opinion as to whether the statute of ber 12, 2014, this Court issued an order request- limitations has run on an action to enforce the ing Father show, within 30 days of receipt of notes, and Defendant may again raise this our order, why this appeal was not now moot. defense in any action which may be filed against We received no response. The Appeal is there- it. AFFIRMED IN PART, REVERSED IN PART, fore dismissed. DISMISSED. Opinion from the AND REMANDED WITH INSTRUCTIONS. Court of Civil Appeals, Division II, by Thorn- Opinion from Court of Civil Appeals, Division brugh, J.; Fischer, P.J., and Rapp, J., concur. II, by Thornbrugh, J.; Fischer, P.J., and Rapp, J., concur.

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF BRIAN EDWARD DUKE, SCBD #6200 TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if Brian Edward Duke should be reinstated to active membership in the Oklahoma Bar Association. Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Okla- homa City, Oklahoma, at 9:30 a.m. on Thursday, February 12, 2015. Any person wishing to appear should contact Gina Hendryx, Gen- eral Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007. PROFESSIONAL RESPONSIBILITY TRIBUNAL

76 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 CLASSIFIED ADS

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COMMISSION has an opening for an attorney to the must possess the ability to manage large numbers of Commissioners. Excellent benefits. You may download projects simultaneously in a variety of legal areas. The an application from the website: http://www.ok.gov/ candidate must be able to work under pressure and wcc/About_the_Commission/index.html. Please send have good judgment and the ability to identify poten- your completed application along with a résumé and tial legal issues. Good writing, research and communi- writing sample to: WCC Human Resources, 1915 N. cation skills are required. Stiles, Suite 231, Oklahoma City, OK 73105 or email: If you are interested in this position, please visit our [email protected]. website to complete an on-line application: www.midfirst.jobs JOB ID 7467. AV RATED TULSA COMMERCIAL LITIGATION/ Equal Opportunity Employer- M/F/Disability/Vets

BUSINESS LAW FIRM seeks associate attorney with 0-3 years’ experience. The position requires a person NORMAN LAW FIRM IS SEEKING sharp, motivated who is organized and can handle multiple cases at any

attorneys for fast-paced transactional work. Members given time. The candidate will be responsible for tak- of our growing firm enjoy a team atmosphere and an ing and defending depositions, research, and brief energetic environment. Attorneys will be part of a cre- writing. This candidate will also handle business trans- ative process in solving tax cases, handle an assigned actional matters. Compensation commensurate with caseload, and will be assisted by an experienced support experience and skills. Submit résumé and references to staff. Our firm offers health insurance benefits, paid va- “Box U,” Oklahoma Bar Association, PO Box 53036, cation, paid personal days, and a 401K matching pro- Oklahoma City, OK 73152. gram. Applicants need to be admitted to practice law in EXPERIENCED LITIGATION/COLLECTION/BANK- Oklahoma. No tax experience necessary. Submit cover letter and résumé to [email protected]. RUPTCY ASSOCIATE (2-5 years). AV rated NW OKC law firm seeks associate with such experience. Salary commensurate with experience. Please send résumé COFFEY, SENGER & McDANIEL PLLC seeks a litiga- and cover letter to “Box N,” Oklahoma Bar Associa- tion attorney with 3 to 7 years of experience for their tion, PO Box 53036, Oklahoma City, OK 73152. South Tulsa and/or Oklahoma City office. Trucking litigation experience is preferred. Please submit résu- mé and writing sample to [email protected].

78 The Oklahoma Bar Journal Vol. 86 — No. 1 — 1/10/2015 Vol. 86 — No. 1 — 1/10/2015 The Oklahoma Bar Journal 79