Volume 82 u No. 27 u October 15, 2011 2378 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 OFFICERS & BOARD OF GOVERNORS Deborah A. Reheard, President, Eufaula Cathy M. Christensen, President-Elect, Oklahoma City events Calendar Reta Strubhar, Vice President, Piedmont Allen M. Smallwood, Immediate Past President, OCTOBER 2011 Tulsa Martha Rupp Carter, Tulsa 19 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Charles W. Chesnut, Miami Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Renée DeMoss, Tulsa Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 Gerald C. Dennis, Antlers Glenn A. Devoll, Enid OBA Women in Law Committee Meeting; 3:30 p.m.; Oklahoma Bar Steven Dobbs, Oklahoma City Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: O. Chris Meyers II, Lawton Deborah Bruce (405) 528-8625 Lou Ann Moudy, Henryetta D. Scott Pappas, Stillwater 20 OBA Leadership Academy; 8:30 a.m.; Oklahoma Bar Center, Oklahoma David A. Poarch Jr., Norman City; Contact: Heidi McComb (405) 416-7027 Ryland L. Rivas, Chickasha Susan S. Shields, Oklahoma City OBA Budget Public Hearing; 4 p.m.; Oklahoma Bar Center, Oklahoma Roy D. Tucker, Muskogee, City; Contact: Craig Combs (405) 416-7040 Chairperson, OBA/Young Lawyers Division 21 OBA Leadership Academy; 8:30 a.m.; Oklahoma Bar Center, Oklahoma BAR Center Staff City; Contact: Heidi McComb (405) 416-7027 John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; OBA Board of Governors Meeting; 9 a.m.; Oklahoma Bar Center, Donita Bourns Douglas, Director of Educational Oklahoma City; Contact: John Morris Williams (405) 416-7000 Programs; Carol A. Manning, Director of Communications; Craig D. Combs, Director of OBA Lawyers Helping Lawyers Assistance Program Training; Administration; Travis Pickens, Ethics Counsel; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Jim Calloway, Director of Management Assistance Contact: Tom Riesen (405) 843-8444 Program; Beverly Petry Lewis, Administrator MCLE Commission; Jane McConnell, Coordinator 22 OBA Young Lawyers Division Committee Meeting; 10 a.m.; Law-related Education; Loraine Dillinder Farabow, Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Debbie Maddox, Ted Rossier, Assistant General Contact: Roy Tucker (918) 684-6276 Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos 24 OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; and Krystal Willis, Investigators Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Manni Arzola, Debbie Brink, Stephanie Burke, Contact: D. Michael O’Neil Jr. (405) 239-2121 Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Brandon Haynie, 25 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Suzi Hendrix, Misty Hill, Debra Jenkins, Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Amy Kelly, Jeff Kelton, Durrel Lattimore, Barbara Swinton (405) 713-7109 Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Lori OBA Legal Intern Committee Meeting; 3 p.m.; Oklahoma Bar Rasmussen, Tracy Sanders, Mark Schneidewent, Center, Oklahoma City with teleconference; Contact: Candace Blalock Robbin Watson, Laura Willis & Roberta Yarbrough (405) 238-3486 EDITORIAL BOARD OBA Law-related Education Planning Subcommittee Meeting; Editor in Chief, John Morris Williams, News 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: (405) 416-7024 & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: 26 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Dietmar K. Caudle, Lawton; Judge Sheila Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Condren, Claremore; Sandee Coogan, Norman; Patricia Podolec (405) 760-3358 Emily Duensing, Tulsa; Erin L. Means, Enid; Pandee Ramirez, Okmulgee; Leslie D. Taylor, Oklahoma City; Joseph M. Vorndran, Shawnee; For more events go to www.okbar.org/calendar January Windrix, Poteau NOTICE of change of address (which must be The Oklahoma Bar Association’s official website: in writing and signed by the OBA member), www.okbar.org undeliverable copies, orders for subscriptions THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar or ads, news stories, articles and all mail items Association. All rights reserved. Copyright© 20082011 Oklahoma Bar Association. should be sent to the Oklahoma Bar Association, The design of the scales and the “Oklahoma Bar Association” encircling the P.O. Box 53036, Oklahoma City, OK 73152-3036. scales are trademarks of the Oklahoma Bar Association. Legal articles carried Oklahoma Bar Association (405) 416-7000 in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Toll Free (800) 522-8065 FAX (405) 416-7001 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Continuing Legal Education (405) 416-7006 a month in january, February, March, April, May, August, Septem- Ethics Counsel (405) 416-7055 ber, October, November and December and bimonthly in June and General Counsel (405) 416-7007 July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Law-related Education (405) 416-7005 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- Lawyers Helping Lawyers (800) 364-7886 homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Mgmt. Assistance Program (405) 416-7008 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Mandatory CLE (405) 416-7009 tions are $55 per year except for law students registered with the OBJ & Communications (405) 416-7004 Oklahoma Bar Association, who may subscribe for $25. Active mem- Board of Bar Examiners (405) 416-7075 ber subscriptions are included as a portion of annual dues. Any Oklahoma Bar Foundation (405) 416-7070 opinion expressed herein is that of the author and not necessar- ily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2379 2380 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Oklahoma Bar Association

table of contents Oct. 15, 2011 • Vol. 82 • No. 27

page

2379 Events Calendar

2382 Index to Court Opinions

2384 Supreme Court Opinions

2423 OBA Annual Meeting

2441 Supreme Court Notice

2446 Committee Volunteer Sign Up Form

2447 Court of Civil Appeals Opinions

2480 Disposition of Cases Other Than by Publication

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2381 Index To Opinions Of Supreme Court

2011 OK 52 Marvin Gentry May, Appellant, v. The Oklahoma Bank and Trust Company, Trustee of The Homer E. May Testamentary Trust, Appellee. No. 107,707...... 2384

2011 OK 84 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Com- plainant, v. GEORGE L. MOTHERSHED, Respondent. O.B.A.D. No. 1526. S.C.B.D. No. 4687...... 2384

2011 OK 81 EVANS & ASSOCIATES UTILITY SERVICES, and ZURICH AMERICAN INSURANCE COMPANY, Petitioners, vs. RUBEN ESPINOSA and THE WORKERS’ COMPENSATION COURT, Respondents. No. 108,017...... 2405

2011 OK 83 CITY OF TULSA; and KATHY TAYLOR, Mayor of the City of Tulsa, Plaintiffs/ Appellees, BANK OF OKLAHOMA, N.A., Defendant, vs. BANK OF OKLAHOMA, N.A.; MARILYN BLEDSOE; ROBERT P. SUTTON; CHERYL L. SUTTON; CYNTHIA L. SUTTON; NANCY DAVIS; MICHAEL E. STAGGS; REGINA A. STAGGS; ROBERTA L. DAVIS; DOUGLAS W. McLAIN; MICHAEL K. ASHLEY; LAURA MANTOOTH; and ARTHUR ADAMS, Defendant/Appellants. Case No. 109,449...... 2409

2011 OK 82 OKLAHOMA DEPARTMENT OF SECURITIES ex rel. IRVING L. FAUGHT, ADMINISTRATOR and DOUGLAS L. JACKSON, IN HIS CAPACITY AS THE COURT APPOINTED RECEIVER FOR THE INVESTORS AND CREDITORS OF SCHUBERT & ASSOC. AND FOR THE ASSETS OF MARSHA SCHUBERT, Plain- tiffs/Appellees, v. MARVIN LEE WILCOX and PAMELA JEAN WILCOX, Defen- dants/Appellants. No. 109,111...... 2417

Index To Opinions of Court of Civil Appeals

2011 OK CIV APP 72 Scott Sexton, Plaintiff/Appellant, vs. Kipp Reach Academy Charter School, Inc., a Corporation, Defendant/Appellee, and Tracy McDaniel, an Individual, and Does 1-10, inclusive, Defendant. Case No. 109,090...... 2447

2011 OK CIV APP 94 National American Insurance Company, an Oklahoma corporation, Plaintiff/Appellee, vs. Gerlicher Company, LLC, an Oregon limited liability compa- ny; and OK Lakes, LLC, a Washington Limited Liability company, Defendants/ Appellants, and Pinion Construction, Inc., an Oklahoma corporation, Defendant. Case No. 108,114...... 2447

2011 OK CIV APP 99 Richard Brown, Plaintiff/Appellant, vs. Oklahoma Farm Bureau Mutual Insurance Company and AG Security Insurance Company, Defendants/ Appellees. Case No. 108,726...... 2447

2011 OK CIV APP 101 HENRYETTA MEDICAL CENTER, Petitioner, vs. PEGGY L. ROBERTS, and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 107,634...... 2447

2011 OK CIV APP 103 OKMULGEE COUNTY RURAL WATER DISTRICT NO. 2, Plain- tiff/Appellee, vs. THE BEGGS PUBLIC WORKS AUTHORITY, Defendant/Appel- lant, and Bill Wilburn, Yvonne Cox, Tom Newton,and Gerald Bivins, Defendants. Case No. 108,273...... 2450

2382 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 2011 OK CIV APP 102 RANDY M. COMBS and TERESA COMBS, husband and wife, Plaintiffs/Appellees, vs. ETHEL MAXINE SHERMAN a/k/a/ STELLA MAXINE SHERMAN a/k/a ETHEL MAXINE OVERBEY, AGNES MARIE OSBORN a/k/a AGNES MARIE AUSBORN, STEPHANIE D. WILLIS, and RICKY D. SHERMAN, if living, or if they or any of them be deceased, their known and unknown heirs, ben- eficiaries, executors, administrators, devisees, trustees, legatees, successors and assigns, immediate and remote of each such person; LEGACY ROYALTY, LLC, SPAR- TAN RESOURCES, LLC, LAKE HAMILTON MINERALS, LLC, TIM W. MUNSON, LLC, PEBBLESTONE PROPERTIES, LLC, and MOUNTAIN FRONT RESOURCES, LLC, Oklahoma limited liability companies, if in existence, or if dissolved or defunct, the unknown successors, trustees, or assigns of any such defunct or dissolved limited liability companies, Defendants/Appellants. Case No. 108,255...... 2452

2011 OK CIV APP 105 IN RE THE MARRIAGE OF: MELISSA JOHNSON, Petitioner/ Appellee, vs. SCOTT JOHNSON, Respondent/Appellant. Case No. 108,307...... 2455

2011 OK CIV APP 104 CHARTER OAK PRODUCTION CO., L.L.C., Plaintiff/Appellant, vs. ADRIAN O’SHEA MORGAN and BNO ENTERPRISES, L.L.C., Defendants/ Appellees. Case No. 108,289; Comp. w/108,290...... 2458

2011 OK CIV APP 106 MIKE ANDERSON, Plaintiff/Appellant, vs. ACCESS MEDICAL CENTERS; DERRICK FREEMAN, D.O.; LENARD “LENNY” PHILLIPS, D.O.; and BRUCE CORNETT, D.O., Defendants/Appellees. Case No. 108,314...... 2460

2011 OK CIV APP 107 SHERRY LEE SORRELS, Plaintiff/Appellant, vs. GARY FRED TECH, Individually and as Trustee of the AMENDED AND RESTATED FRED TECH TRUST, JANIS TECH and THE UNKNOWN HEIRS, EXECUTORS, DEVISEES, TRUSTEES, PERSONAL REPRESENTATIVES, ASSIGNS AND SUCCESSORS OF JANIS TECH AND FRED TECH, Defendants/Appellees. Case No. 108,624...... 2464

2011 OK CIV APP 108 BURL KENNEDY, BRENDA KENNEDY, CODY SHORES, BURL COLTON KENNEDY and JOY KENNEDY, Plaintiffs/Appellants, vs. CITY OF TALI- HINA, and TALIHINA PUBLIC WORKS AUTHORITY, Defendants/Appellees. Case No. 108,778...... 2469

2011 OK CIV APP 109 TYSON FOODS, INC., OWN RISK #12220, Petitioner, vs. DANNY RAY WATSON and THE WORKERS’ COMPENSATION COURT, Respondents, Case No. 108,896...... 2474

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2383 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)

2011 OK 52 ¶5 CONCUR: TAYLOR, C.J., COLBERT, V.C.J., WATT, WINCHESTER, RIEF, COMBS, GUR- Marvin Gentry May, Appellant, v. The ICH, JJ. Oklahoma Bank and Trust Company, Trustee of The Homer E. May Testamentary Trust, ¶6 DISSENT: KAUGER (BY SEPARATE WRIT- Appellee. ING), EDMONDSON (JOINS KAUGER), JJ. No. 107,707. September 30, 2011 KAUGER, J.,with whom EDMONDSON, J., joins dissenting: ORDER Before rehearing is granted, we should request ¶1 Appellee’s Petition for Rehearing is granted a response to the petition for rehearing. for the limited purpose of correcting the Court’s opinion promulgated June 14, 2011, 2011 OK 52. 2011 OK 84 The opinion is corrected as follows: STATE OF OKLAHOMA ex rel. In Paragraph 16, the second grammatical OKLAHOMA BAR ASSOCIATION, sentence, beginning “Rather the question… Complainant, v. GEORGE L. in the amount of $25,253.10…,” should be MOTHERSHED, Respondent. amended to change the amount of O.B.A.D. No. 1526. S.C.B.D. No. 4687 $25,253.10 to $19,157.80. October 11, 2011 In all other respects the opinion remains PROFESSIONAL DISCIPLINARY unchanged. PROCEEDING ¶2 Appellant’s Motion to Award Counsel Fees for Appeal Related Services is denied. ¶0 Respondent, formerly licensed to Section 940 of Title 12 of the Oklahoma Stat- practice law in the State of Oklahoma, utes, and Section 175.57(D) of Title 60 of the received professional discipline by this Oklahoma Statutes are inapplicable to award- Court in 2003, and he was disbarred from ing attorney fees in this matter. the practice of law in this State. In Decem- ber of 2010 Respondent filed a petition to ¶3 Appellant’s Motion to Tax Costs is grant- vacate his disbarment. Respondent alleges ed in part and denied in part. Costs may be that the Court lacked personal jurisdiction awarded to the plaintiff in error on appeal and subject matter jurisdiction to impose when a judgment or final order is reversed the discipline of disbarment. We hold pro- pursuant to 12 O.S. 2001, § 978. Rule 1.14 of the spectively that the statutory procedure for Supreme Court Rules allows the reasonable vacating judgments in a District Court, 12 cost of a transcript, the cost deposit required by O.S. §§ 1031-1038, inclusive, is not applica- 20 O.S. 2001, § 15, and the filing fee required by ble in a Bar disciplinary proceeding, and 20 O.S. 2001, §30.4, as taxable costs. Appellant we also hold that the face of the record in has asked that costs in the amount of $862.54 Respondent’s former disciplinary proceed- be allowed. Appellant’s costs are allowed in ing has no jurisdictional flaw. the amount of $550.00. All other costs are PETITION TO VACATE DISBARMENT denied. DENIED ¶4 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 29th DAY Gina L. Hendryx, Katherine M. Ogden, for OF SEPTEMBER 2011. Complainant Oklahoma Bar Association, Okla- homa City, OK. /s/ Steven W. Taylor CHIEF JUSTICE George L. Mothershed, Pro Se, Glendale, Arizona. EDMONDSON, J.

2384 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 ¶1 Respondent filed in this Court a petition “each and every allegation of the complaint.” to vacate the opinion of this Court which dis- He also alleged ten enumerated “affirmative barred him from practicing law in Oklahoma. defenses.”4 His answer did not raise any issue We conclude that the arguments offered by relating to personal jurisdiction or issuance of Respondent for vacating the disbarment are summons. without merit and we deny the petition to ¶5 On the same day that the Rule 6.1 formal vacate. complaint was filed with the Clerk of this I. Introduction Court, February 15, 2002, Respondent filed a “Motion to Dismiss” and a “Memorandum In ¶2 George L. Mothershed, Respondent, was Support Respondent’s Motion to Dismiss.” disbarred by this Court in 2003.1 In July 2005, Therein he argued that the Oklahoma Supreme Respondent filed a Motion for Clarification Court lacked subject matter jurisdiction to pro- and on July 22, 2005, the Chief Justice of this fessionally discipline Respondent because the Court issued an order stating that “This Bar claims made in support of discipline involved Disciplinary matter was fully concluded March his conduct in proceedings before the United 18, 2003, upon entry of order disbarring respon- States Bankruptcy Court, District of Arizona. dent.” In December 2010, Respondent filed a He argued that only that Bankruptcy Court petition to vacate which challenges his disbar- had jurisdiction to question and examine his ment, and requests that the Court set aside “all professional conduct therein.5 The motion to findings of fact and conclusions of law, orders, dismiss and accompanying memorandum reports, and final report and/or judgment of made no objection based upon personal juris- the Trial Panel of February 7, 2002.” In April diction of Respondent in the Oklahoma profes- 2011 Respondent filed a document herein for sional disciplinary proceeding. the purpose of making a “reservation of all and any of his Federal claims, rights, defenses, ¶6 Four days later, on February 19, 2002, issues, and questions.” We construe this docu- Respondent filed a Motion to Stay or Continue ment as an amendment to his petition to the disciplinary proceeding. He renewed the vacate. Respondent argues that the Trial Panel argument in his motion to dismiss. He argued in his 2002 disciplinary proceeding lacked sub- that he had appealed the order of a Bankruptcy ject matter jurisdiction and personal jurisdic- Court judge which had prevented him from tion of Respondent. Because Respondent argues practicing law in the Bankruptcy Court, and that the face of the record in his former disci- that the appeal was pending before the United plinary proceedings shows this lack of jurisdic- States Court of Appeals for the Ninth Circuit, tion we must examine that record. Case No. 02-15109. His Motion to Stay also argued that the Bar Association used void II. Respondent’s Allegations and His Former orders of the Bankruptcy Court as evidence to Disciplinary Proceedings support the allegations made against him, and ¶3 Formal proceedings may be initiated with that these allegations would be rendered moot a formal complaint filed with the Supreme by an appellate decision in his favor.6 Respon- Court. Rule 6.1, Rules Governing Disciplinary dent did not address the fact that Counts I and Proceedings.2 An “Affidavit for Proof of Ser- II in the formal complaint did not involve his vice of Complaint” filed of record herein shows conduct in bankruptcy court proceedings. that the Rule 6.1 formal complaint was mailed Respondent’s motion did not raise the issue of to Respondent by certified mail, restricted personal jurisdiction. delivery, with return receipt requested. Addi- ¶7 Respondent’s arguments in his motion to tionally, an Affidavit by a Staff Investigator of dismiss and motion for stay provided numer- the State Bar of Arizona shows that the Rule 6.1 ous citations on the authority of bankruptcy formal complaint was personally served on courts. However, his arguments did not address Respondent.3 The return for the mailing shows Bar licensing and disciplinary jurisdiction in a signature, but apparently not the signature of the context of a lawyer’s conduct before federal Respondent. The affidavit of personal service courts,7 or professional licensing review of a filed of record herein shows that Respondent lawyer’s attorney-client relationship in a con- was personally served with the Rule 6.1 formal troversy before a federal court.8 He did not complaint. address the related issue when licensing courts ¶4 On February 15, 2002, Respondent’s impose discipline for conduct committed by Answer was filed with the Court. He denied the lawyer before another court where recipro-

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2385 cal discipline is used,9 or the type of conduct trial order, and the hearing (or trial) before the licensing courts examine when the conduct of trial panel. The hearing date was set for May a lawyer is questioned.10 20-21, 2002. That order does not memorialize any objections by any party as to the dates ¶8 One day later, on February 20, 2002, he scheduled therein. The scheduling order is filed a Motion in Limine asking the Supreme signed by the Presiding Master of the Trial Court to bar the Complainant from introduc- Panel. ing any evidence against Respondent in the disciplinary proceeding because the Bar Asso- ¶12 In the second order the Presiding Master ciation had not provided a complete list of wit- set forth the arguments of the parties. He nesses it intended to rely upon for Respon- memorialized that the Bar Association request- dent’s Trial Panel Hearing. Rule 6.8 of the ed an extension of the hearing date to allow Rules Governing Disciplinary Proceedings pro- time for the Bar to gather evidence and to take vides for providing a list of witnesses to a depositions in Arizona. The order stated that respondent fifteen (15) days before the hear- Respondent objected to the Presiding Master ing.11 He did not argue that the timing of a Rule conducting a conference call on the grounds 6.8 disclosure would prejudice his ability to that the Respondent had not been provided a defend the disciplinary proceeding brought list of witnesses and exhibits at least fifteen against him. Respondent did not mention Rule days prior to the hearing before the trial panel.13 6.8. Respondent’s motion did not raise the The order has no other objection by Respon- issue of personal jurisdiction. dent to scheduling the hearing in May 2002. That order also granted leave for the Bar Asso- ¶9 A few days later on March 6, 2002, ciation to amend its formal complaint with Respondent filed another motion to dismiss. additional allegations of unprofessional con- He stated that he had not received a witness duct allegedly committed by Respondent. list, and that disclosure was required by the procedure in criminal cases as provided by 22 ¶13 On April 1, 2002, Respondent filed an O.S.2001 § 2002. Respondent did not address amended formal answer to the Complaint and Rule 6.8 or the discovery allowed by that Rule. Amended Complaint. He denied “each and Respondent’s motion did not raise the issue of every allegation of the complaint and amended personal jurisdiction. complaint” and alleged twelve “affirmative defenses.”14 None of his defenses raised the ¶10 On March 11, 2002, Respondent filed a issue of personal jurisdiction or issuance of supplement to his motion to dismiss and summons. In his amended answer he raised a argued that a witness list was required by both claim that under Rule 6.7 of the Rules Govern- 22 O.S.2001 § 2002 and Rule 6.8, and that no ing Disciplinary Proceedings the hearing before witness list had been provided to him. Respon- the trial panel was required to be held within dent’s supplement did not raise the issue of sixty days from the date the trial panel was personal jurisdiction. On the same day, Com- appointed.15 He alleged that noncompliance plainant requested leave to amend the formal with Rule 6.7 caused the trial panel to lose sub- complaint against Respondent. Generally, ject matter jurisdiction. He argued that his amending the formal complaint creates an alleged professional misconduct occurred on extension of time for some deadlines, unless or before 1998, that he was prejudiced by the waived by a respondent, because a respondent Bar not filing the formal complaint until Janu- in a disciplinary proceeding is provided an ary 2002, and that witness W. White “and other opportunity to file an answer to the amended prospective witnesses who would have been complaint. Rule 6.5, Rules Governing Disci- able to testify are now deceased or otherwise plinary Proceedings.12 unavailable.”16 Respondent’s amended answer ¶11 A telephone conference call was held on contained no allegations of prejudice suffered by him as a result of the alleged violation of March 11, 2002, and as a result two orders were Rule 6.717 issued by the Presiding Master and filed on March 14, 2002. The first order, a scheduling ¶14 On April 1, 2002, Respondent filed in his order, was filed on March 14, 2002, and it pro- disciplinary proceeding a Cross-Complaint vided dates for completion of discovery, stipu- against a member of the Oklahoma Bar Asso- lations, trial briefs, exchange of lists of wit- ciation (G.B.) and a Counter-Complaint against nesses and exhibits, proposed findings and the Oklahoma Bar Association. Respondent conclusions, pretrial conference, filing of pre- argued that he had a grievance of alleged

2386 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 unprofessional conduct against a member of the was based upon Respondent’s assertions in the Bar, and that the Bar Association had not pro- writ proceeding that if this Court did not give ceeded against lawyer G.B. with a disciplinary him the relief he sought his next procedural proceeding.18 The Bar Association responded step would be seeking review with the U.S. and challenged Respondent’s authority to make Supreme Court. On May 13, 2002, the Court such claims in Respondent’s disciplinary pro- assumed original jurisdiction and denied relief ceeding. The Bar also challenged the Supreme to Respondent.21 On May 14, 2002, the Presid- Court’s authority to review decisions of the Pro- ing Master of the Trial Panel held a pretrial fessional Responsibility Commission and the conference, continued the date for the trial Office of the General Counsel which determine panel hearing until June 25, 2002, and directed whether an accused lawyer should be investi- the parties to seek clarification from this Court gated or formally charged with professional on the scope of relief denied by this Court’s misconduct. On April 17, 2002, Respondent filed May 13th Order. On May 20, 2002, this Court a reply. Therein he argued that his Cross- issued an order stating that the Court’s assump- Complaint and Counter-Complaint were a “com- tion of jurisdiction in the extraordinary writ mon law qui tam proceeding suing in behalf of proceeding “did not remove the authority or the State of Oklahoma for the Oklahoma Bar jurisdiction of the Professional Responsibility Association having failed, neglected or refused Tribunal, its Chief Master, the Trial Panel, or its for over 10-years to provide Respondent Moth- presiding Master.”22 ershed a . . . [speedy and certain remedy for every wrong as guaranteed by Art. 2 § 6 of the ¶18 On June 13, 2002, Respondent again Oklahoma Constitution.]”19 sought an adjudication of his alleged qui tam claim against lawyer G.B. and his claim against ¶15 On April 17, 2002, Respondent filed in the Oklahoma Bar Association. The Oklahoma this Court an application to assume original Bar Association responded and stated that jurisdiction and he requested a “writ in the Respondent would have the opportunity to nature of mandamus/prohibition.” Respon- address “any collateral issues” before the dent argued that he had been denied a speedy Supreme Court upon conclusion of the trial trial contrary to the requirements of the Fifth panel proceedings.23 and Fourteenth Amendments to the United States Constitution, and that the scheduling of ¶19 On June 25, 2002, the Presiding Master of the Trial Panel hearing caused “a complete lack the Trial Panel held a conference call with the of subject matter jurisdiction.”20 He argued that parties, and one day later he issued a schedul- Rule 6.7 was a requirement for the exercise of ing order that set deadlines for discovery, stip- subject matter jurisdiction by the trial panel, ulations, trial briefs, a procedure and date for and that the disciplinary proceeding should be the exchange of witness and exhibit lists, dismissed with prejudice. Respondent did not deferred disposition of Respondent’s motion in raise the issue of personal jurisdiction or issu- limine until pretrial conference on Sept. 17, ance of summons. 2002, and scheduled the hearing before the trial panel on September 23-24, 2002. ¶16 On April 22, 2002, Respondent filed a motion to have the allegations of his cross- ¶20 On August 12, 2002, the Clerk of this complaint deemed admitted because lawyer Court received from Respondent a proposed G.B. had not entered an appearance in Respon- order which Respondent wanted the Clerk to dent’s disciplinary proceeding and contested file herein. Respondent’s order made findings Respondent’s allegations. On April 26, 2002, of fact and conclusions of law, required lawyer Respondent filed a motion for a separate trial on G.B. to be disbarred and to pay Respondent his cross-complaint and counter-complaint, and twelve million dollars ($12,000,000.00), includ- for issuance of an order requiring the Bar Asso- ed a public reprimand of then current General ciation and lawyer G.B. to show cause why a Counsel for the Bar Association, and included default judgment should not be entered against other relief that Respondent desired. This Court them. On May 3, 2002, the Bar Association issued an Order stating that Respondent’s pro- responded to the motion for separate trials. posed order had been received by the Clerk and was not accepted for filing. ¶17 On May 10, 2002, Respondent’s preroga- tive writ proceeding was pending in this Court, ¶21 On September 9, 2002, the Bar Associa- and the Bar Association filed a motion to strike tion filed a motion to bar Respondent from the hearing date for the trial panel. The motion calling witnesses or submitting exhibits. The

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2387 Bar argued that Respondent had ignored the shed.” Both counsel for the Bar and the Presid- scheduling orders of March 14, 2002, and June ing Master stated that they had no ex parte com- 26, 2002, by failing to provide the Bar Associa- munications, and they expressed a desire to tion with a list of witnesses or exhibits that know what Respondent was relying upon in his Respondent desired to use at the hearing. motion to disqualify. Respondent did not offer any instances of improper ex parte communica- ¶22 On September 13, 2002, Respondent tions, and the Presiding Master denied Respon- countered with a motion to dismiss the disci- dent’s motion to disqualify him. plinary proceeding based upon alleged prose- cutorial misconduct of the Bar Association. He ¶25 The transcript of Respondent’s hearing argued that he had not been provided suffi- includes testimony and argument of the cient notice of the evidence which the Bar Respondent giving his views on when a sum- intended to use at the hearing. The Bar respond- mons is, and is not, necessary for a lawyer ed that it had provided a witness and exhibit disciplinary proceeding. Respondent offered list April 19, 2002. The Bar also argued that, an opinion that the Arizona Bar Association pursuant to the second scheduling order, it was required to serve its complaint against him provided Respondent with a virtually identical with a summons because he was not a member list of witnesses and exhibits on July 8, 2002, of that Association. O.R. Trans. Vol. 2, at p. 313. and that Respondent ignored the requirement Additionally, Respondent explained that in that objections to the list were to be made Oklahoma when a person becomes a member within five days of receiving the list. The Bar of “this Bar,” “you stipulate that you cannot also argued that Respondent could not suffer object to jurisdiction of the court with regard to any prejudice from receiving certain copies of complaints.” Id. In his closing argument before exhibits from the Bar because they were the Trial Panel, Respondent objected to the Respondent’s own work product or already jurisdiction of the trial panel based upon the possessed by Respondent. hearing date being rescheduled, but made no ¶23 The pretrial order of September 17, 2002, claim relating to personal jurisdiction or issu- listed the witnesses and exhibits of the Bar ance of a summons. Id. at pp. 326-332. Both Association, and it stated that Respondent parties rested and the matter was submitted to would not call any witnesses or offer exhibits.24 the trial panel for its report to be submitted to On September 17, 2002, the Presiding Master of this Court. the Bar Association denied Respondent’s ¶26 Upon receipt of the Report of the Trial motion in limine and the motion to dismiss Panel, the Chief Justice of the Supreme Court which was based upon allegations of prosecu- issued an order setting the briefing schedule, torial misconduct. The Presiding Master also the Bar Association filed its brief, and Respon- issued an order which found that Respondent dent failed to file his brief. This Court reviewed had failed to provide a list of witnesses and the trial panel report, evidence, pleadings, sub- exhibits, and was therefore barred from pre- mitted brief, considered Respondent’s prior senting exhibits or witnesses at the hearing. On professional discipline,25 and issued an opinion September 19, 2002, Respondent filed a motion that disbarred Respondent. to disqualify the Presiding Master. Respondent alleged that counsel for the Bar Association III. Respondent’s Allegations and the conducted secretive ex parte telephone fax Petition to Vacate communications with the Presiding Master ¶27 In December 2010 Respondent filed a which denied Respondent due process of law. petition to vacate and sought to vacate all of ¶24 The hearing before the trial panel com- the disciplinary proceedings herein, including menced on September 23, 2002, and the trial this Court’s opinion disbarring him in 2003.26 panel first addressed the motion to disqualify His seventy-eight page petition claims that the the Presiding Master. The transcript of the disciplinary proceedings occurred without per- hearing shows that Respondent’s allegation sonal jurisdiction. His argument centers on the was based upon the fact that in the pretrial con- concept that personal jurisdiction requires a ference on May 14, 2002, the Presiding Master summons and a return to be of record in a pro- directed counsel for the Bar to memorialize his ceeding. He also claims that the trial panel scheduling order. Counsel thereafter sent that lacked subject matter jurisdiction because his order with a cover letter by fax to the Presiding trial panel hearing did not occur within the Master which showed a “Cc:George Mother- sixty days required by Rule 6.7 of the Rules

2388 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Governing Disciplinary Proceedings. He argues Article 2 § 6 of the Oklahoma Constitution, (6) that Rule 6.7 created a “Due Process Property his renewed request for a judgment in the Right” to which he was entitled. He argues that amount of twelve million dollars against G.B., opinions of this Court have held that certain and (7) whether all of his disciplinary records time limits in the procedure for disciplinary should be expunged. proceedings are not jurisdictional, and that IV. Bar Association’s Response and such holdings make the disciplinary procedure Petitioner’s Reply “void for vagueness,” and that all of Oklaho- ma’s lawyer disciplinary proceedings are void. ¶30 The Bar Association responded to He argues that he was denied equal protection Respondent’s petition to vacate, and argued under the law as guaranteed by the Fourteenth that (1) Respondent made the same arguments Amendment to the U. S. Constitution because in his disciplinary proceeding and its contem- (1) Rule 6.4 “prevents challenges to the juris- poraneous extraordinary writ proceeding, (2) diction over the accused, the proceeding, the Respondent did not file a petition for rehearing claims, etc., in Oklahoma attorney disciplinary in his Bar disciplinary proceeding, (3) the Rules proceedings,” (2) that the Code of Civil Proce- of this Court and the Rules Governing Disci- dure in civil cases is not allowed to be followed plinary Proceedings do not provide a proce- in its entirety in disciplinary proceedings, and dure for vacating a disbarment almost eight (3) a strict rule of procedure such as the sixty- years after it is a final adjudication, (4) Respon- day requirements of Rule 6.7 may not be dent made similar claims before other courts “relaxed.” Respondent seeks as additional after his disbarment, and (5) this Court should relief an order expunging all records of his dis- find that Respondent’s filings are frivolous and ciplinary proceedings and to be reinstated on dismiss his petition to vacate. The exhibits the Oklahoma Roll of Attorneys.27 attached to the response include a photocopy of this Court’s opinion disbarring Respondent ¶28 Respondent also argues that his Cross- as well as photocopies of an appellate opinion Complaint against G.B. and his Counter-Com- and orders issued by other courts. plaint against the Oklahoma Bar Association were unadjudicated in his former disciplinary ¶31 Respondent filed a reply to the Bar Associ- proceeding and that they should be revived by ation’s response. Respondent argues that the Bar an order nunc pro tunc. He argues that G.B. and Association’s Response “set forth no admissible the Oklahoma Bar Association did not dispute evidence or relevant applicable law.” Respondent his allegations in his disciplinary proceeding, argues that his filings show “a prima facie case,” and he concludes that they are estopped from and that “they are to be deemed confessed by the denying the merits of his claims. Oklahoma Bar Association.” ¶29 On April 22, 2011, Respondent filed a V. Respondent’s Collateral Attack “Notice of Reservation Federal Claims, Issues, ¶32 The Bar Association argues that no rem- Rights, Questions, and Defenses” wherein he edy to vacate a disbarment is provided by the states that he does not desire this Court to Rules Governing Disciplinary Proceedings or determine his “federal claims and issues” the Rules of this Court, and that such omission which he reserves for subsequent federal court is sufficient to deny Respondent relief. The litigation. He states that he wants the Court to unavailability of a rule-created remedy for address only certain issues which he defines as vacating a Bar disciplinary proceeding is not issues of state law. He defines those issues with dispositive of Respondent’s allegations. numbered paragraphs which appear to be incomplete.28 The issues he does identify are (1) ¶33 This Court has explained that “[t]he whether personal jurisdiction was obtained of regulation of licensure, ethics, and discipline of him in the disciplinary proceeding , (2) wheth- legal practitioners is a nondelegable, constitu- er Rule 6.7 deprived the trial panel of subject tional responsibility solely vested in this Court matter jurisdiction, (3) whether Rule 6.7 creat- in the exercise of our exclusive jurisdiction.”29 ed a “due process property right” to have his Our nondelegable and exclusive jurisdiction in disciplinary hearing at a certain time before the Bar matters has been stated often by this trial panel, (4) whether this Court’s construc- Court,30 and it includes every adjudicative aspect tion of Rule 6.7 is “void for vagueness,” (5) of a disciplinary inquiry involving the author- whether this Court’s construction of Rule 6.7 ity of the Oklahoma Bar Association.31 This denies Respondent his rights guaranteed by Court’s subject matter jurisdiction in lawyer

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2389 disciplinary proceedings is both original and plinary procedure provides an adequate oppor- exclusive.32 This Court is the only court that pos- tunity for a lawyer to raise defenses and chal- sesses original jurisdiction of a proceeding lenge the Court’s final adjudication therein. which attacks a lawyer’s disbarment issued by Because this Court has not unequivocally this Court. addressed the issue whether a respondent may file a post-opinion petition to vacate, we decline ¶34 We have explained that initial judicial to hold that Respondent’s sole opportunity for cognizance of a matter is not based upon the a remedy was during his disciplinary proceed- availability of a particular remedy or form of ing.37 We hold prospectively from the date this action, but whether an alleged circumstance is opinion is filed with the Clerk of this Court a particular “wrong” or a cause of action recog- that the procedure for vacating a judgment in a nized by law; i.e., judicial cognizance is based 33 District Court, 12 O.S.2001 §§ 1031-1038, inclu- upon a justiciable cause of action. Disbarment sive, is not applicable to a Bar disciplinary as a result of a disciplinary proceeding is a proceeding in this Court. form of deprivation requiring due process of law during that proceeding,34 and due process ¶36 Respondent’s disbarment is a final adjudi- is not afforded when a court lacks personal and cation. In his disbarment proceeding Respon- subject matter jurisdiction.35 However, merely dent did not file a petition for rehearing and the concluding that a respondent in a disciplinary Court did not order an immediate implementa- proceeding should have a remedy to challenge tion of discipline. Respondent’s disbarment was this Court’s jurisdiction when subject to dis- thus an effective and final adjudication twenty barment does not answer the question if days after the date the Court’s decision was Respondent’s remedy was during his Bar disci- mailed to the parties.38 The decision was mailed plinary hearing or if he possesses a remedy to to the parties on March 18, 2003, and Respon- attack that proceeding eight years after adjudi- dent’s disbarment was final in 2003. cation of his professional misconduct. ¶37 A challenge to a final adjudication may 39 ¶35 A respondent in a disciplinary proceed- be classified as either direct or collateral. ing has opportunities to raise defenses by Respondent characterizes his request as rasing answer (or as in this case by amended answer), a jurisdictional infirmity that is apparent from to present defenses to the trial panel for the a facial inspection of the trial tribunal’s pro- purpose of making a record of facts necessary ceedings, and that “its decision may be collat- to support those defenses, and to raise legal erally attacked and set aside upon the request 40 issues of any defense by a brief in this Court of either party at any time.” We accordingly prior to this Court’s adjudication of the claims treat the petition to vacate as invoking the rem- made by the Bar and defenses raised by a edy he requests, a collateral attack upon a final respondent. We also note that after this Court adjudication, and we assume for the purpose of issues an opinion imposing discipline a respon- this opinion that he has a remedy to collaterally dent may file a petition for rehearing challeng- attack a Bar discipline adjudication on the basis ing that opinion.36 Further, we explain herein of allegations that such occurred without per- that Respondent’s argument concerning a sonal and subject matter jurisdiction. delay in the trial panel proceedings is the type VI. Personal Jurisdiction of claim which the Court has considered when mitigating discipline and determining the ¶38 A lawyer is initially notified of a griev- effective date of discipline. This type of claim ance or allegation against that lawyer pursuant to Rule 5.2 of the Rules Governing Disciplinary should be resolved during the adjudicatory 41 stage of the disciplinary process with a respon- proceedings, and the Court has explained that this notice must be accomplished by personal dent making a record before the trial panel and 42 submitting legal argument to this Court when delivery or by certified mail. In his disciplinary it determines the proper discipline. The statu- proceedings Respondent made no complaint or objection relating to his Rule 5.2 notice. Subse- tory procedure for vacating judgments in a quent to the Rule 5.2 notice, formal proceedings District Court, 12 O.S.2001 §§ 1031 -1038, inclu- may be initiated with a formal complaint filed sive, involves claims based upon fact, law, or with the Supreme Court. Rule 6.1, Rules Govern- mixed questions of law and fact, and if appli- ing Disciplinary Proceedings. cable in a Bar disciplinary proceeding would require additional trial panel proceedings and ¶39 In Respondent’s petition to vacate he subsequent review by this Court. The disci- argues that he was not served with a summons

2390 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 accompanying the service of the formal com- relating to personal jurisdiction or issuance of plaint, and that the record of the proceeding summons. On April 1, 2002, Respondent filed thus fails to show that the Court had personal an Amended Answer to the Complaint and jurisdiction of him during the proceedings. He Amended Complaint. Therein he did not raise states the following. or preserve the issues of personal jurisdiction, manner of service, or issuance of summons. On February 15, 2002, Mothershed initially Two orders were filed as a result of a telephone in a motion to dismiss for want of personal conference call in March 2002, one of which service, raised the lack of the Court’s per- stated arguments of the parties and does not sonal jurisdiction over him. Exhibit A[.] contain any objection by Respondent based Consequently, the issue of Mothershed’s upon personal jurisdiction. The pretrial order right [to] 14th Amendment due process in September 2002 overruled Respondent’s jurisdiction has not been waived. motion to dismiss which was based upon alle- Respondent’s Petition to Vacate, at pp. 23-24. gations of prosecutorial misconduct. Again, no objection to personal jurisdiction was raised or An examination of Exhibit “A” attached to his preserved. petition to vacate is the “Notice of Selection and Appointment of Trial Panel and Notice of ¶42 No objection relating to personal juris- Setting and Notice of Hearing” filed February diction or issuance of summons appears on the 15, 2002. This document appoints the three face of the record until Respondent’s petition members of the trial panel, sets a hearing date, to vacate filed in December 2010, more than and states that motions for continuance “should eight years after his disbarment. In our sum- be addressed to the Presiding Master [of the trial mary of the proceedings herein we noted panel] appointed above.” This document does Respondent’s testimony at his disciplinary not support Respondent’s statement that he hearing which gave his opinion that issuance made an objection based upon personal jurisdic- of a summons was not necessary for his Okla- tion. None of the exhibits attached to the petition homa disciplinary proceeding. He participated to vacate show that Respondent made an objec- in the trial panel hearing, testified, submitted tion to personal jurisdiction or service of process an exhibit (Respondent’s Exhibit No. 1), and during his disciplinary proceeding.43 rested his case without raising an objection to either personal jurisdiction or issuance of a ¶40 On February 15, 2002, Mothershed did summons. When his answer and amended file a “Respondent’s Motion to Dismiss” and a answer were before this Court during the post- “Memorandum in Support of Respondent’s hearing review, he did not file a brief address- Motion to Dismiss.” The Motion begins with ing personal jurisdiction. The record of his the statement that “Respondent moves this disciplinary proceeding clearly shows his par- Court for an order dismissing this action on ticipation without making an objection to per- grounds there is a lack of subject matter juris- sonal jurisdiction. diction on the following grounds....” The motion does not contain the phrases “personal ¶43 Participation in a trial without preserv- jurisdiction,” “service of process,” “in personam ing an objection to personal jurisdiction is usu- jurisdiction” or the words “personal,” “process,” ally construed as a general appearance and a “service,” “summons,” or any other phrase or waiver of any objection to personal jurisdic- word indicating a challenge to personal jurisdic- tion.44 In a Bar disciplinary proceeding in this tion. The supporting “Memorandum” argues Court where the Bar’s complaint may not be that a United States Bankruptcy Court has sub- challenged by demurrer or motion, a respon- ject matter jurisdiction relating to Respondent’s dent’s answer to the Bar’s formal complaint is professional conduct before a Bankruptcy Court. the first responsive pleading and a respondent The Memorandum contains no argument refer- must raise defenses, including any objection to encing “personal jurisdiction,” “in personam personal jurisdiction or service of process. If jurisdiction,” “process,” “service,” “summons,” the defense or objection is not made at that or any other word or phrase indicating a chal- time then it is waived.45 This requirement is lenge based upon personal jurisdiction. We find consistent with our Pleading Code.46 that this motion does not contain a challenge to ¶44 Because Respondent participated in his personal jurisdiction. Bar disciplinary proceeding without making ¶41 Respondent filed an Answer on Febru- an objection to personal jurisdiction or the ary 15, 2002. His answer did not raise any issue method of process used to procure his partici-

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2391 pation, we need not discuss in this collateral ¶48 Contested jurisdictional facts must be attack the general nature of legal process or the adjudicated by the proper finder of fact for the sufficiency of the specific process used to proceeding.49 The findings of fact and conclu- require Respondent’s personal participation in sions of law made by the trial panel of the his disciplinary proceeding.47 Respondent’s Professional Responsibility Tribunal are not allegations that this Court lacked personal binding on this Court, and this Court adjudicates jurisdiction necessary to impose professional both the facts and law in a lawyer disciplinary discipline upon him and that such is shown on proceeding.50 This Court, and not the trial the face of the record are allegations without panel, adjudicates issues of fact and issues of any support in the record and they are without law that are binding in a disciplinary hearing. legal merit. ¶49 Whether a particular party must plead VII. Jurisdiction, Due Process, and Rule 6.7 and prove a jurisdictional fact will depend upon whether the fact is part of a cause of ¶45 Respondent argues that the trial panel action or part of a defense.51 Respondent’s and this Court in his 2002 disciplinary proceed- argument that a loss of subject matter jurisdic- ing lacked subject matter jurisdiction. He tion occurred by a violation of Rule 6.7 is in the argues that Rule 6.7 of the Rules Governing nature of a defense and he had the burden to Disciplinary Proceedings was violated, and present those facts with supporting legal argu- that a violation of that Rule is also a violation ment to this Court for adjudication. The of a personal right which he possesses, a viola- Respondent’s filings in his disciplinary pro- tion of due process, and a jurisdictional error. ceeding show that he was aware of this Court’s The rule states that the trial panel hearing de novo review of the record.52 However, he “shall not be less than thirty (30) nor more than declined to file a brief in this Court and raise as sixty days from the date of appointment of the error the timeliness of the trial panel hearing Trial Panel.” Rule 6.7 also provides that “[e]x- and the method by which continuances were tensions of this period may be granted by the obtained by the Bar in his case.53 Chief Master (or Vice-Chief Master, in the case of the unavailability of the Chief Master) for ¶50 Respondent’s arguments are based upon good cause shown.” the idea that he raised a “subject matter juris- diction” challenge by his Amended Petition ¶46 Respondent states that his hearing that went unadjudicated by this Court in his occurred after April 8, 2002, and he argues that Bar disciplinary hearing after he failed to raise the disciplinary proceedings after that date are the argument in both the pretrial conference void. Respondent states that the continuances and by a brief in this Court after the trial panel were not granted by either the Chief Master or hearing. Further, that because (1) subject mat- Vice-Chief Master of the Professional Respon- ter jurisdiction was not expressly adjudicated sibility Tribunal upon good cause shown, but by the Court’s opinion, and (2) subject matter by the Presiding Master of Respondent’s trial jurisdiction may not be waived by parties, his panel. The order signed by the Chief Master of failure to brief the issue to this Court did not the Professional Responsibility Tribunal which waive his claims and he is now entitled to his appointed Respondent’s trial panel also express- one attempt to show alleged jurisdictional ly ordered requests for a continuance to “be addressed flaws in the Bar proceeding.54 Respondent’s to the Presiding Master” of Respondent’s trial argument is premised upon the idea that the panel. The Presiding Master thereafter ruled on alleged error in application of Rule 6.7 shows a requests for a continuance. violation of due process, and thus an error of ¶47 Subject matter jurisdiction of a court is jurisdictional magnitude. invoked by pleadings filed with a court which ¶51 This Court possesses nondelegable and show that the court has power to proceed in a exclusive jurisdiction in Bar matters. Subject case of the character presented, or power to matter jurisdiction is not delegated to a trial grant the relief sought.48 Subject matter juris- panel of the Professional Responsibility Tribu- diction in this Court relating to Respondent’s nal. A trial panel does not function as a court of disciplinary proceeding occurred when his dis- original jurisdiction and issue a decision for ciplinary proceeding was commenced in this this Court’s appellate review.55 A trial panel Court by the Bar Association filing a formal functions as this Court’s hearing examiner and complaint pursuant to Rule 6.1 of the Rules a procedural “conduit” for the record and legal Governing Disciplinary proceedings. arguments making the case ready for this

2392 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Court’s original de novo review of the case.56 a court to render the particular judgment.60 The parties raise their claims and defenses in Also generally, a court’s violation of a proce- the pleadings and have an opportunity to pres- dure or a rule of procedure is not usually con- ent facts supporting those claims and defenses sidered as also an act outside the jurisdiction of in a record; and that record is forwarded to this a court unless (1) the violation or performance Court to consider with legal arguments made of the procedure is expressly stated to be juris- by the parties in their briefs. dictional,61 (2) the procedure is itself for the 62 ¶52 Subject matter jurisdiction in this Court purpose of obtaining or invoking jurisdiction, or (3) the procedure is for the purpose of pro- is invoked with the filing of the formal com- 63 plaint by the Bar, and that jurisdiction remains tecting a fundamental right. Respondent’s claims seek to place himself in this last catego- with this Court throughout the trial panel pro- 64 ceedings. Although the Court created rules ry with his claim to a right of a speedy trial requiring parties to present their respective that is allegedly created by Rule 6.7, and pro- claims and defenses to a trial panel of the Pro- tected by the Due Process Clause of the 14th Amendment,65 and the Due Process Clause of fessional Responsibility Tribunal, these rules 66 merely create a method by which those claims Okla. Const. Art. 2 § 7. Respondent also and defenses are submitted to this Court for frames his arguments on two contentions: (1) this Court’s original and exclusive adjudication. that Rule 6.7 is mandatory and jurisdictional, Respondent’s arguments which compare a trial and (2) that a deprivation of due process occurs panel’s “jurisdiction” to that of a court of origi- when the mandatory language is not followed nal jurisdiction, as well as his references to an by the Bar when seeking a continuance. “automatic appeal” from the trial panel to this ¶55 Even if we assume that Rule 6.7 was vio- court with the filing of “appellate briefs,” are lated in Respondent’s proceeding, not every thus incorrect and not applicable. violation of a procedural rule is equated with a ¶53 Respondent relies upon Ashikian v. State denial of due process, and an alleged violation ex rel. Oklahoma Horse Racing Commission57 for of a rule must result in a procedure which itself the proposition that a Chief Master or Vice- falls short of standards derived from the Due Chief Master of the Professional Responsibility Process Clause for a violation of that Clause to Tribunal does not have the “subject matter occur.67 For example, the denial of a continu- jurisdiction” or authority to confer upon a Pre- ance in a criminal trial has been held to not siding Master of a trial panel the power “to violate the Due Process Clause when the defen- assert in-perpetuity jurisdiction over a pending dant received a fair trial.68 In other words, did case” by using a power to grant continuances the assumed erroneous application of Rule 6.7 for trial panel hearings. In Ashikian the rule at in granting continuances for Respondent’s issue was expressly stated to be jurisdictional hearing result in a procedure which itself falls and commenced with the language “[j]uris- short of standards derived from the Due Pro- diction of stewards to suspend or fine....”58 Rule cess Clause?69 6.7 of the Rules Governing Disciplinary Pro- ¶56 In answering this question we note that ceedings does not contain any language indi- a lawyer accused of misconduct in a Bar disci- cating that jurisdiction is involved when a plinary proceeding must be afforded due pro- Chief Master grants a continuance. Further, cess of law prior to suspension or revocation of even if we assumed that a Chief Master may the lawyer’s licence to practice law.70 In a Bar not grant to a Presiding Master the authority to disciplinary matter a respondent receives notice hear a request for a continuance, an erroneous of the grievance, notice of the formal com- application of the rule is not ipso facto an error plaint, and opportunities for filing a written of jurisdiction. The continuances granted in response and obtaining pre-hearing discovery Respondent’s disciplinary proceeding did not as in civil cases.71 A respondent may be repre- create a jurisdictional error, and we thus reject sented by a lawyer.72 A respondent has a public this argument of Respondent. hearing before a Trial Panel and the hearing is ¶54 Generally, once subject matter jurisdic- stenographically recorded unless the facts are tion is acquired it is not lost or divested by stipulated.73 Witnesses may be compelled to subsequent events.59 Although Respondent attend the hearing and production of tangible states that his claim is based upon subject mat- evidence may be compelled by subpoena.74 A ter jurisdiction, it is closer to a claim based upon respondent is not compelled to disclose mat- the third jurisdictional element, jurisdiction of ters which are privileged or answer questions

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2393 that would tend to incriminate or show the Master may extend the time for a disciplinary respondent guilty of any act or offense that hearing in order to comply with disciplinary would be grounds for discipline.75 The recep- procedures.84 The record before us shows that tion of evidence at the hearing before the Trial continuances of Respondent’s hearing were Panel is generally governed by the rules in civil granted, in part, for completion of discovery proceedings.76 At the hearing before the Trial which included depositions counsel for the Panel a respondent has an opportunity to tes- Oklahoma Bar Association took in Arizona. Rule tify, present testimony by witnesses, and pro- 6.8 of the Rules Governing Disciplinary Proceed- duce tangible evidence.77 The charge of disci- ings expressly allows for parties to take deposi- plinary misconduct must be established by tions. This Court has commented in various “clear and convincing evidence.”78 The Trial contexts on the important opportunity to engage Panel’s report containing findings of fact and in discovery so that a party may present a devel- conclusions of law is served on a respondent.79 oped factual record to the trier of fact.85 We also The pleadings, exhibits, and transcript of the stated in Brewer that this Court has a long tradi- hearing are filed with the Supreme Court.80 A tion of refusing to circumscribe lawyer disci- respondent is provided an opportunity to file a plinary proceedings, including reinstatement brief with this Court using facts in the record proceedings, by procedural rulings.86 Granting and any legal issue respondent desires to these continuances that delayed Respondent’s argue.81 This Court reviews the record, including hearing six months does not show an abuse of briefs filed by the parties, and imposes disci- discretion amounting to an arbitrary and capri- pline, or dismisses the proceedings, or takes cious use of power,87 but an effort by the Presid- other action it deems appropriate.82 After issu- ing Master to give the Bar an opportunity to ance of the Court’s opinion or order a respon- obtain all material facts for presentation to the dent has an opportunity to file a petition for trial panel and then to this Court. 83 rehearing. This procedure provides a respon- ¶59 In 1987, in State ex rel. Oklahoma Bar Ass’n dent with an opportunity to appear, to present v. Bradley, the respondent therein argued that evidence and legal argument with review by the jurisdiction was lost when the trial panel report Oklahoma Supreme Court, and then a further was filed with the Supreme Court approxi- opportunity to file a petition for rehearing and mately eighty days after the trial panel hearing object to the Court’s adjudication. instead of within the thirty-day requirement of 88 ¶57 Respondent’s hearing originally sched- Rule 6.13. We stated therein the following. uled for March 19, 2002, occurred on Septem- Although the rules provide guidelines ber 23, 24, 2002. During this delay of six months for conducting disciplinary proceedings, Respondent still possessed his license to prac- failure to follow these to the letter would tice law in Oklahoma, although he was resid- not divest this Court of jurisdiction. We ing in Arizona. During these six months find therefore that although we disapprove Respondent and the Bar filed motions, con- of such delay, the delay in and of itself did ducted discovery, participated in pretrial pro- not divest this court of jurisdiction of this ceedings, and Respondent brought an original matter. jurisdiction proceeding in this Court relating to his disciplinary proceeding. Respondent’s dis- Bradley, 1987 OK 78, 746 at 1133. ciplinary case was not languishing from neglect Well before Respondent’s proceeding we had on the Bar docket. The record shows that all of rejected the theory underlying his argument the trial panel procedures, including notice herein. We plainly stated that a failure to fol- and opportunity to appear, present a record, low a procedural rule of the Rules Governing opportunity to testify and file briefs, etc., were Disciplinary Proceedings does not necessarily provided to Respondent. Respondent received inject a jurisdictional flaw into the proceeding. notice and a meaningful opportunity to appear and be heard. We conclude that the process ¶60 Respondent also seeks to divorce the received by Respondent was fair and no due language of Rule 6.7 from our opinions con- process violation occurred. struing the Rules Governing Disciplinary Pro- ceedings generally, and Rule 6.7 specifically. ¶58 In 1989, years prior to Respondent’s Bar The U.S. Supreme Court has explained that disciplinary proceeding, in State ex rel. Oklaho- “[a] judicial construction of a statute is an ma Bar Ass’n v. Brewer, this Court construed Rule authoritative statement of what the statute 6.7 and stated that a Chief Master or Vice-Chief meant before as well as after the decision of the

2394 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 case giving rise to that construction.”89 Simi- scheduling a trial panel hearing (and continu- larly, this Court’s judicial construction of a ances to comply with the Rules Governing disciplinary procedure rule is an authoritative Disciplinary Procedure), was not to create a statement of what that rule meant several years mandatory jurisdictional requirement is a hold- before Respondent’s Bar disciplinary hearing. ing within this Court’s power to determine That judicial construction stated that a rule in whether a state rule of procedure has directory the Rules Governing Disciplinary Proceedings or mandatory effect. This argument by Respon- does not create a jurisdictional limitation on dent is without merit. the trial panel or this Court. At the time of ¶63 Respondent raises a related argument Respondent’s disciplinary proceeding he could that our judicial construction of Rule 6.7 is void not possess any reasonable expectation that on account of vagueness. A prohibition against Rule 6.7 created a personal and unqualified a vague regulation is based upon the need to right to a mandatory hearing within the 60-day 90 eliminate the impermissible risk of discrimina- limit specified therein. tory enforcement of the regulation and sup- ¶61 We have stated that the Rules Governing pressing (or denying) the exercise of a constitu- Disciplinary Proceedings are generally not tionally protected right; i.e., there should be jurisdictional; i.e., that the rules were not definiteness and certainty of expression in a intended to create jurisdictional obligations. regulation that suppresses or denies an indi- However, this does not mean that each rule of vidual right.96 Respondent’s argument is based those Rules may never be considered as having upon his view that he possesses a personal a jurisdictional effect.91 For example, an oppor- right to a disciplinary hearing within a manda- tunity to be heard for the lawyer subject to tory sixty-day limit, or as otherwise extended discipline is an element of due process and by the Chief Master. Our decisions have clearly thus a jurisdictional requirement for this Court construed the right to a timely hearing based to remove a lawyer’s license to practice law.92 upon the factors in a right-to-speedy-trial anal- Although the Rules Governing Disciplinary ysis and not upon a literal mechanistic applica- Proceedings provide for an opportunity to be tion of Rule 6.7. Respondent’s void-for-vague- heard, the jurisdictional nature of this require- ness argument is without merit. ment springs from the Oklahoma and federal ¶64 The right to a speedy and certain remedy Due Process Clauses and a lawyer’s right in his without delay, in a civil proceeding, is one of or her license to practice law, and not the mere the rights enjoyed by the citizens of this State, codification of that opportunity in the form of including lawyers in Bar disciplinary proceed- a rule by this Court. ings.97 This right is recognized in Oklahoma ¶62 Respondent argues that when every Bar Constitution Art. 2 § 6, which requires that a disciplinary hearing pursuant to Rule 6.7 is not speedy and certain remedy be afforded for every held within its sixty-day requirement or con- wrong and for every injury to person, property, tinued by the Chief Master, a violation of equal or reputation, and that right and justice be administered without sale, denial, delay or prej- protection of the law occurs if this Court 98 “relaxes” the meaning of “shall” as something udice. In civil cases we have explained that four other than a mandatory meaning. We construe factors are considered whether this right has this argument as Respondent arguing that the been infringed: the length of the delay, the rea- equal protection component of Okla. Const. son for the delay, the party’s assertion of the 93 94 right, and the prejudice to the party occasioned Art. 2 § 7 is violated in such circumstances. 99 Respondent’s argument is based upon the by the delay. In a Bar disciplinary matter we premise that this Court’s judicial construction have commented on unreasonable delay and of the word “shall” must in every circumstance imposed less discipline where such a delay have a mandatory effect. While it is correct that occurred; the effect of the delay was similar to a “may” generally denotes permissive or discre- factor mitigating discipline. tional, and “shall” is ordinarily interpreted as ¶65 In State ex rel. Oklahoma Bar Ass’n v. Mad- implying a command or mandate, we have dox, we stated that “We would have agreed to held that a directory rather than mandatory the discipline imposed by the professional tri- construction may be given to the word “shall” bunal panel had this cause been presented in a upon a finding of strongly persuasive contrary timely and orderly manner.”100 In Maddox the legislative intent.95 This Court’s holding that trial panel, “apparently without considering our intent in fashioning a rule governing the the delay in these proceedings, recommended

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2395 that Maddox be suspended for two years and brief in this Court.107 However, this Court does one day and that he be assessed the costs of not act to supply missing legal argument and this proceeding.”101 In Oklahoma a recommen- authority necessary to support a respondent’s dation for suspension in excess of two years “is defense when the Court reviews the allega- tantamount to disbarment in that the suspend- tions of unprofessional conduct. ed lawyer must follow the same procedures for readmittance as would a disbarred counter- ¶70 This Court explained, prior to Respon- part.”102 Instead of agreeing with a suspension dent’s proceeding herein, that a respondent in a disciplinary proceeding has an adversarial pro- that would have been “tantamount to disbar- 108 ment,” we imposed a two year suspension and cedural burden to present his or her defenses we made the suspension retroactive for 21 with the necessary supporting facts and legal months prior to our decision.103 arguments at the procedurally proper time before the procedurally proper tribunal. In ¶66 The face of the record herein does not State ex rel. Oklahoma Bar Ass’n v. Gasaway, show any facts demonstrating prejudice to where a post-hearing brief was not filed by the Respondent by the six-month delay.104 The respondent, we explained that a respondent record does not show that Respondent’s delay was not denied procedural due process con- of six months was unreasonable. Respondent’s cerning an alleged error in the disciplinary claim of a lack of a speedy trial does not show proceeding when he did not avail himself of a jurisdictional flaw on the face of the record. his opportunity to “submit legal arguments by We conclude that Respondent’s claim of a lack brief in this court after the panel report was of a speedy trial due to the granting of the con- filed.”109 A Bar disciplinary proceeding is adver- tinuances is without merit. sarial in nature, and a lawyer subject to disci- VIII. NO REMEDY BY DEMURRER OR pline is provided with a fair and open hearing MOTION TO DISMISS A BAR before a trial panel with notice and opportunity 110 COMPLAINT to present evidence and argument. The adver- sarial nature of disciplinary proceedings is not ¶67 Respondent argues that Oklahoma and a novel concept to Respondent.111 The initial federal Due Process Clauses require a party to adversarial requirement that defenses be raised have a full and fair opportunity to litigate a in a respondent’s answer and not by demurrer claim, and that he did not have this opportu- or motion did not prevent Respondent from nity because Rule 6.4 of the Rules Governing raising any defenses in his Answer or Amend- Disciplinary Proceedings prohibited him “from ed Answer. Rule 6.4 does not prevent a respon- raising jurisdiction or U.S. Constitutional dent from both asserting and preserving 105 issues.” Respondent is mistaken as to what defenses at the procedurally proper times dur- Rule 6.4 prohibits as well as in his view that he ing a disciplinary proceeding. lacked an opportunity to present defenses and jurisdictional claims. ¶71 One of the goals of both the Federal Rules of Civil Procedure and the Oklahoma ¶68 Rule 6.4 prohibits a respondent from Pleading Code is to “eliminate unnecessary challenging the formal complaint “by demur- delay at the pleading stage by avoiding the rer or motion.” Rule 6.4 does not prohibit a time-consuming piecemeal litigation of pretrial respondent from raising jurisdictional and con- motions.” Okla. Stat. Ann. tit. 12, § 2012 (1993), stitutional claims in an answer filed pursuant (Committee Comment to Section 2012). Both to Rule 6.4. An adjudication of the merits of a the Federal Rules of Civil Procedure112 and the disciplinary claim against a lawyer also includes Oklahoma Pleading Code113 require a defen- an examination of affirmative defenses raised dant to raise a defense in the responsive plead- by that lawyer during the course of the disci- 106 ing if one is required, or by a motion prior to plinary proceeding. This adjudication would the responsive pleading. Some federal courts include defenses of a jurisdictional or constitu- have explained that certain defenses that may tional nature. be waived by a defendant, such as the defense ¶69 It is correct that this Court reviews the of lack of personal jurisdiction, must be both trial panel report, evidence submitted to the timely raised and seasonably and appropriate- trial panel, stipulations, and pleadings filed in ly submitted to the trial court.114 Defendants are a disciplinary proceeding as well as a review of thus not denied due process when they are required the merits of the disciplinary charges against a to raise the personal jurisdiction defense by an respondent even though he or she fails to file a answer and seasonable submission. Similarly, a

2396 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 respondent in a Bar disciplinary matter is not ten years.116 He also alleged that an oil and gas denied due process protected by the Oklahoma interest had been fraudulently obtained from Constitution when given the opportunity to him by his divorce lawyer, and that the income submit the defense of a lack of personal juris- the lawyer had received from this interest diction as an affirmative defense in an answer exceeded twelve million dollars. In his disci- to the formal complaint. Nothing prevented plinary proceeding he requested as relief “the Respondent from raising the defense of a lack granting of a disgrogment [sic] order requiring personal jurisdiction in his Answer. the returning of all income to Cross-Complain- ant . . . together with interest . . . [and that the ¶72 It is generally correct that a lack of sub- lawyer] be ordered to make a reconveyance of ject matter jurisdiction may be raised at any 115 all of Cross-Complainant’s right, title and inter- time. The disciplinary rules and opinions of est in and to the McClure Lease.”117 Respondent this Court allow a respondent to raise and pre- alleged that this fraud occurred “[s]hortly after serve defenses in an answer, pretrial confer- the divorce proceeding was concluded.”118 In ence, and brief in this Court. We note that addition to seeking relief against his former Respondent raised defenses in both his Answer lawyer, Respondent also sought an order and Amended Answer. Prior to Respondent’s requiring an investigation of the General Coun- Bar disciplinary proceeding, this Court ex- sel’s office of the Oklahoma Bar Association plained in other cases that a legal error in the with discipline to be imposed as warranted by disciplinary proceeding could be waived when that investigation.119 a respondent failed to make the supporting legal argument by declining the opportunity to ¶75 Respondent argues herein that this brief the issue in this Court. State ex rel. rel. Court’s opinions in State ex rel. Oklahoma Bar Oklahoma Bar Ass’n v. Gasaway, supra. Respon- Ass’n v. Bradley, and Matter of Evinger,120 “con- dent has not shown that requiring him to raise stitutes a denial of Mothershed’s Oklahoma and preserve jurisdictional and constitutional Constitution, Article 2, section 6, particularly defenses by pleading them in an answer, or not having addressed Mothershed’s attorney’s amended answer, pretrial conference, or brief undisputed and undenied claims including in this Court, has in any way caused prejudice damages which he has convincingly and con- to him, or hindered him, in his ability to submit tinues to sustain injuries at the hands of an defenses to this Court. Requiring Respondent Oklahoma attorney. . . fraudulent and conver- 121 to press his subject matter jurisdictional claims sion conduct . . . .” The rights protected by 122 by answer, amended answer, pretrial confer- Oklahoma Constitution Art. 2 § 6 are basic 123 ence, or brief in this Court does not deny Art. 2 and fundamental, and they do not include a § 7 due process to Respondent. right of a respondent to inject into his or her professional disciplinary proceeding in this IX. Civil Claim, Bar Grievance Against Third Court any type of cause of action the respon- Party, and Investigation of the General dent desires. Counsel of the Bar Association ¶76 According to Okla. Const. Art. 7 § 7, a ¶73 In both the disciplinary hearing and his District Court of this State constitutes an omni- petition to vacate Respondent seeks relief competent, single-level, first-instance tribunal against a third party, G.B., the lawyer who rep- with “unlimited” original jurisdiction of all resented him in his divorce proceedings in justiciable matters, except as otherwise pro- Oklahoma allegedly between 1980 and 1984. In vided in Article 7 of the Oklahoma Constitu- his disciplinary proceeding Respondent filed a tion and the Federal Constitution.124 This origi- cross-complaint against the lawyer alleging nal jurisdiction of a District Court extends to all that his lawyer committed acts of unprofes- actions in law and equity, and includes causes sional conduct. He sought three types of relief of action based upon tort and contract princi- against this lawyer: (1) professional discipline ples.125 Respondent’s allegations of fraud and to be imposed against the lawyer, (2) monetary request for relief seeking money damages and damages, and (3) an order requiring convey- a transfer of an oil and gas interest are clearly ance of an interest relating to oil and gas. within the subject matter jurisdiction of a Dis- trict Court of this State.126 ¶74 Respondent alleged that he filed with the Bar Association a professional grievance against ¶77 Respondent has not supplied legal his former lawyer and that his grievance had authority for the proposition that this Court been before the Bar Association for more than may adjudicate causes of action based upon

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2397 allegations of fraud or contract principles in dure is that this Court is primarily a court of the context of a nonsupervisory original juris- appellate jurisdiction.132 Respondent made no diction proceeding between two private par- showing in his disciplinary proceeding why ties. We doubt that such original jurisdiction this Court should exercise jurisdiction over exists due to the original jurisdiction granted to causes of action based upon allegations of District Courts by Article 7. For example, in fraud and contract jurisprudence instead of State ex rel. Cartwright v. Ogden, two District Respondent seeking relief for such alleged Courts were simultaneously adjudicating iden- injuries in a District Court. There was no error tical issues relating to the State and School committed by this Court when it did not exer- Lands Trust.127 The Attorney General sought a cise subject matter jurisdiction over Respon- supervisory extraordinary writ in this Court to dent’s claims against his former lawyer that arrest proceedings in District Courts in one were unrelated to the Bar’s claims of unprofes- district (First Judicial District) so that proceed- sional conduct of the Respondent. ings in another District Court (Seventh Judicial District) could be completed without an issue ¶79 Respondent asserted that he sought of conflicting jurisdiction. We relied upon Okla. relief using a common-law qui tam remedy to Const. Art. 7 § 7 and observed therein that prosecute his former lawyer and compel an while nothing in Oklahoma’s Uniform Trusts investigation of the lawyers employed by the Act prevented a District Court from exercising Bar Association.133 Respondent did not cite any jurisdiction over the Lands Trust, also “Noth- statute creating or recognizing a qui tam reme- ing in the Oklahoma Constitution appears to dy for the cause of action and remedies he confer original jurisdiction of such a trust in sought. the Supreme Court.”128 We looked to the Con- stitution to determine if this Court had original ¶80 In Bass Angler Sportsman Soc. v. U. S. Steel jurisdiction over the cause of action and its Corp., 324 F.Supp.412 (S.D.Ala. 1971), aff’d., 447 subject. There is no authority cited in Respon- F.2d 1304, the court stated the following: dent’s Petition to Vacate or his Notice of Reser- Historically a qui tam action is one brought vation that shows an exclusive original juris- by an informer under a statute which 129 diction in this Court to adjudicate causes of establishes a penalty or forfeiture for the action based upon fraud and contract disputes commission or omission of some act, and between Respondent and his former lawyer. which additionally provides for the recov- ¶78 Even if we were to assume that this ery of the same in a civil action with part of Court had original jurisdiction to adjudicate the recovery to go to the person bringing causes of action of fraud and contract similar to the action. None of the many cases cited in those raised by Respondent, he would still not briefs approved a qui tam action to collect be entitled as a matter of right to relief in this a criminal fine. All involved civil penalties proceeding. Because a District Court possesses or forfeitures. All of the qui tam cases also jurisdiction to adjudicate causes of action based recognize the statutory origin of the right of upon fraud and contract, any potential or action. It arises not from a statutory right to assumed original jurisdiction by this Court share in the penalty but from the express or over these causes of action would be concurrent implied statutory grant of authority to main- with that jurisdiction in a District Court; and tain the action. Confiscation Cases, 74 U.S. (7 the exercise of original jurisdiction over those Wall.) 454, 19 L.Ed. 196 (1868). A corollary causes of action in this Court would thus be to this principle is that even where some discretionary.130 Discretionary original jurisdic- statutory language seems to grant a private tion exercised by this Court is based upon a right of action, if the same or a related stat- petitioner fulfilling specified burdens of proce- ute also clearly places enforcement in the dure and persuasion. For example, one burden hands of governmental authorities the right of procedure is that a petitioner must show of action is exclusively vested in such gov- why the action is brought in the Supreme ernmental authority. Williams v. Wells Fargo Court instead of another court of competent 131 & Express Co., 177 F. 352 (8th Cir. 1910); jurisdiction. A person seeking to invoke this Rosenberg v. Union Iron Works, 109 F. 844 Court’s original and concurrent jurisdiction (N.D.Calif.1901). must explain why he or she bypassed the Dis- trict Courts of this State and sought original Id. 324 F. Supp. at 415 (emphasis added and relief in this Court. One reason for this proce- note omitted).

2398 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 This view that a modern qui tam remedy is Hohfeldian standing to prosecute alleged pub- based upon a statute creating that remedy has lic wrongs.135 also been explained by various authors. One ¶82 This Court has never approved of a gen- example is as follows. eral class of non-Hohfeldian private parties Qui tam proceedings began as avenues for who may bring public actions for the vindica- plaintiffs to get access to royal courts by tion of public rights and the correction of alleging that not only were the plaintiff’s purely public wrongs of whatever nature. private interests involved, but that the Forms of action have long been abolished in interests of the king were at stake as well. this State,136 and Okla. Const. Art. 2 § 6 indi- By the fourteenth century, as royal courts cates that judicially cognizable wrongs are not became generally available to resolve pure- defined by particular remedies.137 This means, ly private disputes, the need for common in part, that for Respondent to use the com- law qui tam fell away. By the period imme- mon-law qui tam remedy, as a remedy, he must diately before and after the framing of the possess, as a private individual, a legal or justi- United States Constitution, common law ciable right to act for the public to prosecute qui tam was dying out altogether, both in public wrongs of the nature that were raised by England and in the Colonies as well. his pleadings in his disciplinary proceeding. A particular remedy available at common law . . . Qui tam became available, if at all, only does not determine a legally cognizable right, through statutes. In an ironic twist, while but rather a legally cognizable right determines common law qui tam had required the that a remedy pursuant to Art. 2 § 6 must be assertion that the king’s interest was at available. For example, in the context of a dis- stake, statutory qui tam instead required cussion of Art. 2 § 6 and fashioning a remedy, the assertion that a private interest was at in Ethics Commission v. Cullison, we explained stake in order to satisfy the requirement of that “... the question of whether a court should standing. grant . . . [a particular remedy] is not a question John Martinez, Getting Back the Public’s Money: of the power or jurisdiction of the court to The Anti-Favoritism Norm in American Property grant the relief, but the appropriateness of that Law, 58 Buff. L.Rev. 619, 628 (2010), (emphasis particular procedure or remedy for the particu- 138 added). lar justiciable controversy.” In other words, the common-law version of qui ¶83 None of Respondent’s filings in his disci- tam died out as the courts in England provided plinary proceeding show a legal argument remedies for purely private wrongs and Parlia- with supporting authority that Respondent ment passed statutes creating statutory qui tam possesses a legally cognizable right to act as a remedies where a public wrong was involved. prosecutor in a Bar disciplinary proceeding or Id. This view is supported by the United States a legally cognizable right to demand an inves- tigation of the General Counsel’s Office of the Supreme Court’s view that “Although there is 139 no evidence that the Colonies allowed com- Bar Association. The face of the record in mon-law qui tam actions (which, as we have Respondent’s disciplinary proceeding fails to noted, were dying out in England by that time), show any deprivation of Okla. Const. Art. 2 § they did pass several informer statutes express- 6. Respondent’s failure to show any Art. 2 § 6 ly authorizing qui tam suits.” Vermont Agency of deprivation also means that no violation of Natural Resources v. United States ex rel. Stevens, Oklahoma’s Due Process Clause occurred 529 U.S. 765, 776, 120 S.Ct. 1858, 146 L.Ed.2d when Respondent failed to obtain relief on 836 (2000). these issues in his disciplinary proceeding. The absence of violations of the Oklahoma Consti- ¶81 Respondent seeks an alleged common- tution also shows that in this vacation proceed- law qui tam remedy to compel a prosecution of ing no jurisdictional issue is presented on these alleged professional misconduct and an inves- grounds. tigation of the Bar Association.134 He thus seeks X. Conclusion to breathe new life into the old common-law qui tam remedy, a nonstatutory remedy, for ¶84 We hold prospectively that the statutory which there is no evidence that the Colonies procedure for vacating judgments in a District ever allowed. In essence, and in more modern Court, 12 O.S. §§ 1031-1038, inclusive, is not language, Respondent claims a right to non- applicable in a Bar disciplinary proceeding. We

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2399 have examined Respondent’s allegations relat- documents from the Bar Association, ( 9) only the United States Bank- ruptcy Court for Arizona had jurisdiction to examine Respondent’s ing to jurisdiction herein. Respondent made a conduct, and (10) his appeal in the United States Court of Appeals for general appearance in this disciplinary pro- the Ninth Circuit would be dispositive of the issues, and thus prevent the Justices of Oklahoma Supreme Court from “becoming embroiled in ceeding and his claim of a lack of personal litigation in Arizona . . . and possible substantial personal civil liability jurisdiction is without merit. Respondent and damages.” 5. Respondent’s Motion to Dismiss, S.C.B.D. No. 4687 (Feb. 15, frames his other claims as violations of consti- 2002) p.1. tutional principles that he then attempts to 6. Nine months after Respondent filed his motion to stay in his characterize as jurisdictional via the Oklahoma disciplinary proceeding the United States Court of Appeals for the Ninth Circuit adjudicated his appellate claims therein to be unpersua- Due Process Clause. These claims are not juris- sive, lacking merit, and failing to demonstrate that the lower court dictional. For example, Respondent’s claim of abused its discretion. The decision of the Ninth Circuit is unofficially reported at Mothershed v. Curley, 51 Fed.Appx. 264, 2002 WL 31650849 noncompliance with the literal language of (9th Cir. , Nov. 18, 2002). Rule 6.7 is a claim of legal error and is not juris- 7. Our recent opinion, In re Reinstatement of Mooreland-Rucker, 2010 OK 43, 237 P.3d 784, we explained that a particular court’s limited dictional. As a nonjurisdictional claim, any power to limit a lawyer’s practice before that court should not be con- legal error in granting the six-month continu- fused with the state’s licensing of that right to practice law generally. ance is not a jurisdictional flaw on the face of Id. at ¶ 13, 237 P.3d at 788. This Court has imposed discipline for a lawyer’s unprofessional the record and is not grounds for vacating conduct before federal courts, including conduct before bankruptcy Respondent’s disbarment. We have also con- courts. See, e.g., State ex rel. Oklahoma Bar Ass’n v. Chappell, 2004 OK 41, 93 P.3d 95; State ex rel. Oklahoma Bar Ass’n v. Burnett, 2004 OK 31, 91 cluded that the claims raised by Respondent P.3d 641; State ex rel. Oklahoma Bar Ass’n v. Stewart, 2003 OK 13, 71 P.3d are without merit, and that his petition to 1; State ex rel. Oklahoma Bar Ass’n v. Jenkins, 2001 OK 54, 27 P.3d 91; State vacate his disbarment and all other requests for ex rel. Oklahoma Bar Ass’n v. Tweedy, 2000 OK 37, 52 P.3d 1003; State ex rel. Oklahoma Bar Ass’n v. Patmon, 1997 OK 62, 1997 OK 64, 939 P.2d relief should be denied. 1155; State ex rel. Oklahoma Bar Ass’n v. Wolfe, 1997 OK 47, 937 P.2d 988; State ex rel. Oklahoma Bar Ass’n v. English, 1993 OK 68, 853 P.2d 173; State ¶85 Respondent’s petition to vacate his dis- ex rel. Oklahoma Bar Ass’n v. Robertson, 1980 OK 176, 620 P.2d 382; State ex rel. Oklahoma Bar Ass’n v. O’Bryan, 1963 OK 151, 385 P.2d 876. barment is denied. Respondent’s request to 8. This Court’s disciplinary jurisdiction includes professional ethi- expunge his Oklahoma professional disciplin- cal issues pertaining to the attorney-client relationship in a controversy ary records is denied. Respondent’s request for before a federal court. State ex rel. Oklahoma Bar Ass’n v. Weeks, 1998 OK 83, 969 P.2d 347. relief against his former lawyer is denied. 9. This Court imposes reciprocal discipline. State ex rel. Oklahoma Respondent’s request for relief against the Bar Ass’n v. Heinen, 2002 OK 81, ¶ 4, 60 P.3d 1018, 1019 (Pursuant to Rule 7.7 of the Rules Governing Disciplinary Proceedings a lawyer Oklahoma Bar Association is denied. All other may be professionally disciplined by this Court because of the law- relief requested by Respondent in his Petition yer’s professional discipline by the highest court of another state or a to Vacate and Notice of Reservation is denied. federal court.); State ex rel. Oklahoma Bar Ass’n v. Patterson, 2001 OK 51, 28 P.3d 551 (same). The United States Supreme Court and the Circuit Courts of United States Court of Appeals also impose reciprocal disci- ¶86 TAYLOR, C.J., COLBERT, V.C.J., and pline. See, for example, In re Roman, 601 F.3d 189 (2d Cir. 2010), where KAUGER, WATT, WINCHESTER, EDMOND- the court discussed both reciprocal discipline in the Circuit Courts as well as application of Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 SON, REIF, COMBS, JJ. , concur. L.Ed. 585 (1917). In re Roman, 601 F.3d at 192-194. Respondent’s disci- pline herein was not imposed as reciprocal discipline, but the nature of ¶87 GURICH, J., recused. his arguments in his motions prior to disbarment are sufficiently broad to challenge the authority of any court imposing any form of profes- 1. State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2003 OK 34, 66 sional discipline other than the court before which the respondent P.3d 420. committed his professional misconduct. 2. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary Pro- 10. Our recent opinion, In re Reinstatement of Mooreland-Rucker, 2010 ceedings, Rule 6.1: OK 43, 237 P.3d 784, stated that “this Court’s disciplinary authority is Formal proceedings in matters involving misconduct by lawyers shall far-reaching and permits this Court to exercise jurisdiction over Okla- be brought by direction of the Professional Responsibility Commission. homa Bar members regardless of where the lawyer’s conduct occurs.” The proceeding shall be initiated by a formal complaint prepared Id. at ¶ 18, 237 P.3d at 790, citing, RGDP Rule 1.1, Okla. Stat. tit. 5, ch. by the General Counsel, approved by the Commission, signed by the 1, app. 1-A (2001) and ORPC Rule 8.5(a), Okla. Stat. tit. 5, ch. 1, app. chairman or vice-chairman of the Commission, and filed with the 3-A (2001). This court has the inherent power to discipline lawyers qua Chief Justice of the Supreme Court. Upon the expiration of the respon- officers of the court, and this power extends to acts outside the scope dent’s time to answer, the complaint and the answer, if any, shall of one’s professional practice where the offending conduct bears on the thereupon be lodged with the Clerk of the Supreme Court and the practitioner’s fitness to practice law. State ex rel. Oklahoma Bar Ass’n v. complaint, as well as all further filings and proceedings with respect Braswell, 1998 OK 49, ¶ 40, 975 P.2d 401. See also State ex rel. Oklahoma thereto, shall be a matter of public record. Nine copies shall be filed Bar Ass’n v. Rogers, 2006 OK 54, ¶ 11, 142 P.3d 428, 433 quoting State ex with each original instrument. rel. Oklahoma Bar Ass’n v. Aston, 2003 OK 101, ¶ 11, 81 P.3d 676, 678 3. Affidavit for Proof of Service of Complaint, filed February 13, (fitness to practice law encompasses more than an absence of detri- 2002, on the Office of the Chief Justice Bar Docket, and on February 15, ment to specific clients.). 2002, in Supreme Court Bar Docket (S.C.B.D.) No. 4687. 11. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary Pro- 4. The allegations of the defenses may be summarized as follows: ceedings, Rule 6.8: (1) estoppel, (2) that Arizona rules of admission to its Bar were uncon- (a) Depositions may be taken and read, and documents and things stitutional, (3) that Respondent possessed rights pursuant to U.S. may be required to be produced for inspection and/or copying, in the Const. Amend. 5, Equal Protection Clause, and the “Privileges and same manner as in civil cases; Immunities Clause” of that Constitution to practice law in Arizona, (4) (b) Upon written request made fifteen (15) days before the trial of laches barred allegations of his unprofessional conduct in 1998, (5) all the cause, the respondent or his attorney shall be given the names and of the orders entered against him by various other courts were void, (6) addresses of witnesses to be used by the prosecution; and statute of limitations (7) the Oklahoma Bar Association’s allegations (c) The General Counsel, with the approval of the Professional were barred by “waiver,” (8) Fifth Amendment privilege against self Responsibility Commission, shall have the authority to enter into incrimination entitled him to refuse all requests for information and stipulations of fact and law concerning a formal complaint against a

2400 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 respondent lawyer, and a recommendation as to discipline to be his records. Respondent does not cite our recent opinion, In re Spilman, imposed. 2010 OK 70, 240 P.3d 702, where we explained that 22 O.S. §§ 18, 19, did 12. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary Pro- not provide authority for expunging Bar disciplinary proceedings in ceedings, Rule 6.5: this Court. Due to the nature of our disposition on the petition to After the complaint has been filed, the General Counsel may vacate we need not address Respondent’s authority relating to the amend the complaint to add or delete allegations as permitted under Court expunging records. the general rules of civil procedure, subject to the respondent’s right to 28. Respondent’s filing in this Court, “Notice of Reservation Fed- file an answer within twenty (20) days after such amendment. eral Claims, Issues, Rights, Questions, and Defenses,” is a document of 13. Order, S.C.B.D. No. 4687 (March 14, 2002) at p. 3. twelve pages with what appears to be a missing page. In the original 14. The twelve numbered defenses may be summarized as present- document and all photocopies filed in this Court page number “-6-” ing allegations that: (1) discipline was barred by estoppel, (2) Arizona appears to be missing. Respondent numbered paragraphs “1” and “2” rules for admission to the bar were unconstitutional, (3) Arizona rules on page “-5 “ are followed by numbered paragraphs “6,” “7,” and “8” for admission were unconstitutional, (4) discipline was barred by of the following page numbered “-7” by Respondent. laches, (5) orders of other courts were void and could not be used as a 29. State ex rel. Oklahoma Bar Ass’n v. Wilburn, 2010 OK 25, ¶ 4, 236 basis for discipline, (6) discipline was barred by a statute of limitations, P.3d 79, 80. (7) the Bar Association waived its right to discipline Respondent, (8) 30. See, e.g., State ex rel. Oklahoma Bar Ass’n v. Albert, 2007 OK 31, Respondent invoked his Fifth Amendment right against self-incrimina- ¶ 11, 163 P.3d 527, 533; In re Reinstatement of Fraley, 2005 OK 39, ¶ 36, tion and argued that he was not required to give any evidence to the Bar 115 P.3d 842, 852; Tweedy v. Oklahoma Bar Ass’n, 1981 OK 12, 624 P.2d Association, (9) only the United States Bankruptcy Court had jurisdiction 1049, 1052; In re Integration of State Bar of Oklahoma, 1939 OK 378, 185 over Respondent’s professional conduct before that court, (10) many of Okla. 505, 95 P.2d 113, 116. See also 12 O.S.2001 Ch. 15, App. 1, Okla. the issue were before the Ninth Circuit appellate court for adjudication, Sup.Ct. R. 1.17 (Court notes its role in adjudicating Bar disciplinary (11) Respondent had a right to a hearing within 60 days of the filing of proceedings and states therein that “[t]he law vests in the Supreme the Complaint and his right to a speedy trial had been violated, and (12) Court alone” this function.). Respondent’s right to a speedy trial had been violated. 31. State ex rel. Oklahoma Bar Ass’n v. Livshee, 1994 OK 12, 870 P.2d 15. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary Pro- 770, 773. ceedings, Rule 6.7: 32. State ex rel. Oklahoma Bar Ass’n v. Erickson, 2001 OK 66, ¶ 14, 29 The Chief Master or Vice-Chief Master of the Professional Respon- P.3d 550, 555. See also State ex rel. Oklahoma Bar Ass’n v. Wallace, 1998 OK sibility Tribunal shall notify the respondent and the General Counsel 65, ¶ 6, 961 P.2d 818, 822 (“In a bar disciplinary proceeding this court of the appointment and membership of the Trial Panel and of the time functions in the role of an adjudicative licensing authority that exercises and place for hearing, which shall not be less than thirty (30) nor more exclusive original cognizance.”); 5 O.S. 2001 Ch. 1, App. 1-A, Rules Gov- than sixty (60) days from the date of appointment of the Trial Panel. erning Disciplinary Proceedings, Rule 1.1 (“This Court declares that it Extension of this period may be granted by the Chief Master (or the possesses original and exclusive jurisdiction in all matters involving Vice-Chief Master, in case of the unavailability of the Chief Master) for admission of persons to practice law in this State, and to discipline for good cause shown. cause, any all persons licensed top practice law in Oklahoma, . . . .”). 16. Respondent’s “First Amended Answer” S.C.B.D. No. 4687 33. Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069, 1072- (April 1, 2002) at p. 4. 1073. See also Rivas v. Parkland Manor, 2000 OK 68, ¶ 18, 12 P.3d 452, 17. Respondent’s “First Amended Answer” S.C.B.D. No. 4687 457-458 (this Court has held that the right to a remedy afforded by (April 1, 2002) at p. 7. Okla. Const. Art. 2, § 6, means that the courts should be open and 18. Rule 6.1 of the Rules Governing Disciplinary Proceedings states afford a remedy for those wrongs that are recognized by the law of the land.); that a formal complaint is brought “by direction of the Professional State ex rel. Oklahoma Bar Ass’n v. Maddox, 2006 OK 95, ¶ 15, 152 P.3d Responsibility Commission,” the complaint is prepared by the General 204, 209-210 (Okla. Const. Art. 2, § 6 is applicable to a Bar disciplinary Counsel for the Bar Association, approved by the Commission, signed by proceeding). the chairman or vice-chairman of the Commission, and then filed with 34. State ex rel. Oklahoma Bar Ass’n v. Lobaugh, 1988 OK 144, 781 P.2d the Chief Justice of the Supreme Court. See Rule 6.1 at note 2 supra. 806, 811. Rule 6.1 does not provide authority for formal complaints of 35. Producers Investment Co. v. Colvert, 1940 OK 175, 100 P.2d 1005, unprofessional misconduct being initiated and filed with the Supreme 1009, quoting Seal et al. v. Banes et al., 1934 OK 299, 35 P.2d 704, 705 (“No Court using a procedural mechanism outside the scope of the Disci- judgment of a court is due process of law, if rendered without jurisdic- plinary Rules. No Rule 6.1 formal complaint against lawyer G.B. was tion in the court or without notice to the party.”). involved in this proceeding. 36. Rule 6.15(c) of the Rules Governing Disciplinary Proceedings 19. “Respondent’s and Counter-Claimant’s Reply . . .” S.C.B.D. No. states that petitions for rehearing on behalf of the respondent or the 4687 (April 17, 2002) at pp. 4-5. Association shall be filed with the Clerk of the Supreme Court within 20. Mothershed v. State of Oklahoma, ex rel. Oklahoma Bar Ass’n, Okla. twenty (20) days from the date of mailing of the action or decision of Sup. Ct. No. 97,616, Application and Petition to Assume Original Juris- the Supreme Court. diction (April 17, 2002) at pg. 1. 37. When called upon to construe the meaning of not-so-readily intel- 21. A summary order assuming jurisdiction and denying manda- ligible or not-so-clearly settled legal norms that are a veritable trap for mus relief has no preclusive effect. Miller Dollarhide, P. C. v. Tal, 2006 the unwary, this Court will ameliorate the effect of its decision to provide OK 27, ¶ 13, 174 P.3d 559, 565. evenhanded fairness. Arrow Trucking Co. v. Lewis, 2004 OK 18, ¶ 7, 90 P.3d 22. Order of Supreme Court, Okla. Sup. Ct. No. 97,616 (May 20, 997, 999-1000; Sisk v. J. B. Hunt Transport, Inc., 2003 OK 69, n. 27, § 14, 81 2002). P.3d 55, 61. We decline to hold that Respondent’s opportunity for a rem- 23. Complainant Oklahoma Bar Association’s Response, S.C.B.D. edy was limited to the time of his disciplinary hearing when the legal No. 4687 (June 20, 2002) at p.2. norm for such remedies was not clearly settled at that time. 24. While being questioned by the Presiding Master of the trial 38. State ex rel. Oklahoma Bar Ass’n v. Giger, 2003 OK 61, ¶¶ 15-17, panel at his disciplinary hearing, Respondent agreed that during a 72 P.3d 27, 34-35. pretrial telephone conference Respondent had stated that he did not 39. A direct attack is an attempt to avoid or correct a judicial pro- have any witnesses to call and he had no exhibits to submit at his dis- ceeding in some manner provided by law, such as by an appeal, or ciplinary hearing. Transcript of Hearing, Vol. 2 at p. 294. The Presiding motion for new trial. House v. Town of Dickson, 2007 OK 57, n. 5, 193 P.3d Master nevertheless allowed Respondent to submit an exhibit at the 964; In re Hess’ Estate, 1962 OK 74, 379 P.2d 851, 855, appeal dismissed, hearing because he wanted “to give Mr. Mothershed the benefit of cert. denied, Hess v. Kriz, 375 U.S. 45 (1963). handing that into evidence.” Id. at pg. 295. The Presiding Master also A collateral attack on a judicial proceeding is an attempt to avoid, asked Respondent if he had any witnesses that he wanted to testify on defeat, or evade it, or to deny its force and effect in some manner not Respondent’s behalf, and upon receiving a negative reply determined provided by law; that is, in some other way than by appeal, writ of that Respondent had rested his case. Id. error, certiorari, or motion for a new trial. In re Hyde, 2011 OK 31, ¶ 11, 25. State ex rel. Oklahoma Bar Ass’n v. Mothershed, 1991 OK 36, 812 255 P.3d 411, 414, quoting State ex rel. Comm’n of Land Office v. Corp. P.2d 382. Comm’n, 1979 OK 16, ¶ 9, 590 P.2d 674, 677. 26. Respondent argues that after April 8, 2002, “all orders and the 40. Respondent’s “Petition to Vacate and Motion for Order Nu[n]c opinion are facially invalid” and “void.” Respondent’s “Petition to Pro Tunc With Affidavit,” S.C.B.D. No. 4687, at pp. 11, 18. (Dec. 2, 2010). Vacate and Motion for Order Nu[n]c Pro Tunc With Affidavit,” S.C.B.D. 41. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary Pro- No. 4687, at p. 19. (Dec. 2, 2010). Similar statements occur throughout ceedings, Rule 5.2: Respondent’s petition. See, e.g., at pp. 35, 41. After making such preliminary investigation as the General Coun- 27. Respondent states that 22 O.S. §§ 18, 19, federal law, and the sel may deem appropriate, the General Counsel shall either (1) notify Court’s inherent authority provide sufficient authority for expunging the person filing the grievance and the lawyer that the allegations of

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2401 the grievance are inadequate, incomplete, or insufficient to warrant the Tribunal’s findings, conclusions of law nor recommendations of disci- further attention of the Commission, provided that such action shall be pline are binding on this Court.”); State ex rel. Oklahoma Bar Ass’n v. reported to the Commission at its next meeting, or (2) file and serve a Todd, 1992 OK 81, 833 P.2d 260, 262 (“neither the findings of fact of a copy of the grievance (or, in the case of an investigation instituted on Professional Responsibility Tribunal (PRT) nor its view of the evidence the part of the General Counsel or the Commission without the filing or credibility of witnesses are binding on us and recommendations of of a signed grievance, a recital of the relevant facts or allegations) upon a PRT are merely advisory”). the lawyer, who shall thereafter make a written response which con- 51. Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, tains a full and fair disclosure of all the facts and circumstances per- 1073; Flick v. Crouch, 1967 OK 131, 434 P.2d 256, 261-262. taining to the respondent lawyer’s alleged misconduct unless the 52. For example, in “Respondent’s Supplement to Motion to Dis- respondent’s refusal to do so is predicated upon expressed constitu- miss” filed March 11, 2002, he stated that a dismissal of the complaint tional grounds. Deliberate misrepresentation in such response shall “will permit the Supreme Court a ‘full scale non-deferential de novo itself be grounds for discipline. The failure of a lawyer to answer examination of all relevant facts.’” Respondent’s Supplement, at p.7. within twenty (20) days after service of the grievance (or recital of facts 53. We note that Respondent placed no facts of record in his disci- or allegations), or such further time as may be granted by the General plinary proceeding concerning whether this alleged violation of Rule Counsel, shall be grounds for discipline. The General Counsel shall 6.7 by a Presiding Master granting a continuance instead of the Chief make such further investigation of the grievance and response as the Master or Vice-Chief Master is anything more than a one-time or single General Counsel may deem appropriate before taking any action. occurrence. Our review herein on Respondent’s petition to vacate is 42. State ex rel. Oklahoma Bar Ass’n v. O’Neal, 1993 OK 61, 852 P.2d limited to the face of the record before us. 713, 716. 54. Read v. Read, 2001 OK 87, ¶¶ 14 -15, 57 P.3d 561, 566-567 (The 43. All of Respondent’s Exhibits attached to his petition to vacate law affords no more than a single opportunity to litigate a disputed were examined: Exhibit A (photocopy of Notice of Selection and question of a tribunal’s jurisdiction.); Stites v. DUIT Constr. Co., 1995 Appointment of Trial Panel, etc., February 7, 2002, S.C.B.D. No. 4687); OK 69, n. 13, 903 P.2d 293, 298 (A litigant who is deemed aggrieved by Exhibit B (photocopy of Supreme Court Clerk’s docket entries, S.C.B.D. a jurisdictionally defective decision is allowed but a single “whack” at No. 4687), Exhibit C (photocopy of First Modified Scheduling Order, any facially void target.). June 26, 2002, S.C.B.D. 4687, followed by an “Affidavit of George L. 55. State ex rel. Oklahoma Bar Ass’n v. Taylor, 2000 OK 35, ¶ 4, 4 P.3d Mothershed’s In Support of his Petition in Independent Action”). Addi- 1242, 1247. tionally, all of Respondent’s motions to dismiss, answer, amended 56. State ex rel. Oklahoma Bar Ass’n v. Busch, 1998 OK 103, ¶¶ 12, 16, answer, and all other filings of Respondent in S.C.B.D. 4687 were exam- 976 P.2d 38, 44, 46. See also State ex rel. Oklahoma Bar Ass’n v. O’Neal, ined and none contain an objection to personal jurisdiction or any 1993 OK 61, 852 P.2d 713, 716 (a party must present facts to the trial attempt to preserve the issue. panel if the party desires the Court to use those facts when rendering 44. Smith v. Smith, 1924 OK 224, 223 P. 658, 659. See also Cherokee its decision). Nation v. Nomura, 2007 OK 40, ¶ 7, 160 P.3d 967, 971 (“When a party 57. Ashikian v. State ex rel. Oklahoma Horse Racing Commission, 2008 makes an appearance and requests affirmative relief, he has waived OK 64, 188 P.3d 148. any challenge to personal jurisdiction.”); Turner v. Big Four Petroleum 58. Ashikian, 2008 OK 64, at n. 16, 188 P.3d 148, 153. Co., 1954 OK 244, 274 P.2d 525, 526-527 (if a defendant makes a general 59. Amarex Inc. v. Sell, 1977 OK 250, 566 P.2d 456, 459; Jones Drilling appearance in an action without properly objecting to personal juris- Company v. Woodson, 1973 OK 14, 509 P.2d 116, 118; Turk v. Coryell, 1966 diction, the defendant waives any lack of personal jurisdiction), citing OK 194, 419 P.2d 555, 558. The exceptions to this general rule are not Summers v. Williams, 1952 OK 91, 242 P.2d 139, overruled in part on before us in this proceeding and we need not list and analyze them. other grounds in Zarrow v. Hughes, 1955 OK 44, 282 P.2d 215. 60. In Oklahoma Dept. of Securities ex rel. Faught v. Blair, 2010 OK 16, 45. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary Pro- n. 22, 231 P.2d 645, 658, we explained that the third element of jurisdic- ceedings, Rule 6.4: tion, jurisdictional power to render the particular judgment, was raised The Respondent shall within twenty (20) days after the mailing of by the arguments in the case which focused on whether the judgment the complaint file an answer with the Chief Justice. The respondent sought or obtained violated mandatory law. See, e.g., Gulfstream Petroleum may not challenge the complaint by demurrer or motion. In the event Corp. v. Layden, 1981 OK 56, 632 P.2d 376 (compulsory statutory require- the respondent fails to answer, the charges shall be deemed admitted, ment antecedent to judgment or final order must be fulfilled to satisfy except that evidence shall be submitted for the purpose of determining third element of jurisdiction); Abraham v. Homer, 1924 OK 393, 102 Okla. the discipline to be imposed. 12, 226 P. 45, 48 (facts showing compliance with a procedural statute 46. 2 O.S.2001 § 2012 (F)(1): mandatorily required for a judgment are material to the existence of the F. WAIVER OR PRESERVATION OF CERTAIN DEFENSES. power of the court to render that judgment). See also Stidham v. Special 1. A defense of lack of jurisdiction over the person, improper Indem. Fund, 2000 OK 33, n. 10, 10 P.3d 880, 884, quoting Windsor v. venue, insufficiency of process, insufficiency of service of process, McVeigh, 93 U.S. (3 Otto) 274, 282, 23 L.Ed. 914 (1876) (“Though the court failure to state a claim upon which relief can be granted, or lack of may possess jurisdiction of a cause, of the subject-matter, and of the par- capacity of a party to be sued is waived: ties, it is still limited in its modes of procedure, and in the extent and a. if omitted from a motion that raises any of the defenses or objec- character of its judgments. It must act judicially in all things, and cannot tions which this section permits to be raised by motion, or then transcend the power conferred by the law.”). b. if it is not made by motion and it is not included in a responsive 61. See, e.g., 12 O.S.Supp.2007 § 696.2 (D) (“The filing with the court pleading or an amendment thereof permitted by subsection A of Sec- clerk of a written judgment, decree or appealable order, prepared in tion 2015 of this title to be made as a matter of course. A motion to conformance with Section 696.3 of this title and signed by the court, strike an insufficient defense is waived if not raised as in subsection D shall be a jurisdictional prerequisite to the commencement of an of this section. appeal....”); 30 O.S.Supp.2010 § 3-307 (“This article provides the exclu- 47. But see, First Nat. Bank & Trust Co. v. Arles, 1991 OK 78, 816 P.2d sive jurisdictional basis for a court of this state to appoint a guardian 537, 541 (Legal process includes proceedings begun by a writ, warrant, or issue a protective order for an adult.”). summons, or order, or which invoke the aid of judicial process.); State 62. See, e.g., Woods v. Woods, 1992 OK 64, 830 P.2d 1372, 1374 (The ex rel. Whitson, v. Bd. of Com’rs of Ellis County, 1917 OK 331, 166 P.423 filing of the petition in error within thirty days of the judgment or order (personal jurisdiction in a mandamus proceeding does not require appealed is a jurisdictional prerequisite to the commencement of an issuance of a summons since alternative writ may take the place of appeal.); Bane v. Anderson, Bryant & Co., 1989 OK 140, 786 P.2d 1230, 1233- petition and summons in a mandamus proceeding). 1234 (Supreme Court’s jurisdiction is invoked by a timely filed petition 48. Oklahoma Dept. of Securities ex rel. Faught v. Blair, 2020 OK 16, in error); 12 O.S.2001 §990A (E) (“Except for the filing of a petition in error ¶ 19, 231 P.3d 645, 657-658; State ex rel. Oklahoma Tax Com’n v. Texaco as provided herein, all steps in perfecting an appeal are not jurisdiction- Exploration, 2005 OK 52, ¶ 14, 131 P.3d 705, 709; State ex rel. Turpen v. A al.”) (emphasis added) (and as amended by Laws 2002, c. 468, § 6, eff. 1977 Chevrolet Pickup Truck, 1988 OK 38, ¶ 10, 753 P.2d 1356, 1359. Nov. 1, 2002, and 2011 Okla. Sess. Law Serv. Ch. 13, S.B. 940). 49. Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 63. See, e.g., Shamblin v. Beasley, 1998 OK 88, ¶ 12, 967 P.2d 1200, 1073; Flick v. Crouch, 1967 OK 131, 434 P.2d 256, 261-262. 1209 (notice and an opportunity to be heard is a fundamental right, a 50. State ex rel. Oklahoma Bar Ass’n v. Vincent, 2002 OK 40, ¶ 22, 48 jurisdictional requirement, and an element of due process). P.3d 797, 801 (“The Tribunal’s findings, conclusions of law, or recom- 64. In Respondent’s “Petition to Vacate and Motion for Order mendations of discipline are not binding on this Court.”); State ex rel. Nu[n]c Pro Tunc With Affidavit,” S.C.B.D. No. 4687, at pp. 33-34 (Dec. Oklahoma Bar Ass’n v. Dershem, 1999 OK 77, ¶ 22, 990 P.2d 864, 868 2, 2010) he argues that his trial panel hearing was required to held (“The Supreme Court’s review is de novo, the tribunal’s findings and before April 8, 2002, and that he was denied a speedy trial when it conclusions of law, as well as any recommendations for discipline are occurred on September 23-24, 2002. not binding on the Court.”); State ex rel. Oklahoma Bar Ass’n v. Weeks, 65. We construe Respondent’s “Notice of Reservation Federal ¶ 12, 969 P.2d 347, 351 (“Neither the parties’ stipulation of fact nor the Claims, Issues, Rights, Questions, and Defenses” as an amendment to

2402 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 his Petition to Vacate. That amendment removes from his request for facts upon which the allegations rest, the trial panel’s deviation from relief his claims based upon the U. S. Constitution to the extent that such the rules governing the transmission of its conclusions — whether of claims may be separated from his claims based upon State law. Oklahoma’s fact or law — is harmless.”). Due Process Clause, Okla. Const. Art. 2, § 7, has a definitional sweep 87. Flandermeyer v. Bonner, 2006 OK 87, ¶ 10, 152 P.3d 195, 198-199 that is coextensive with its federal counterpart, although there may be (“Before a party’s due process rights are violated, it must be shown situations in which the Oklahoma provision affords greater due pro- that the action or error was arbitrary, oppressive and shocking to the cess protections than its federal counterpart. McClure v. ConocoPhillips conscience of the court.”). Company, 2006 OK 42, n. 54, 142 P.3d 390, 399; Black v. Ball Janitorial 88. State ex rel. Oklahoma Bar Ass’n v. Bradley, 1987 OK 78, 746 P.2d Serv., Inc., 1986 OK 75, n. 9, 730 P.2d 510, 513. 1130, 1132. 66. See, e.g., Respondent’s “Petition to Vacate and Motion for Order 89. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-313, 114 S.Ct. Nu[n]c Pro Tunc With Affidavit,” S.C.B.D. No. 4687, at p. 6, n. 9 (Dec. 1510, 128 L.Ed.2d 274 (1994). 2, 2010) (Respondent states that “Mothershed’s Fourteenth Amend- 90. A liberty interest protected by the Due Process Clause may arise ment due process property right entitlement to his attorney disciplin- from the Constitution itself, by reason of guarantees implicit in the ary trial was created by RGPD, Rule 6.7, and created expressly positive word “liberty,” or it may arise from an expectation or interest created state court RGPD, Rule 6.7, and too it is created by the mandatorily by state laws or policies. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. required ‘shall’ consistent, positive action for government officials.”). 2384, 162 L.Ed.2d 174 (2005), citing Vitek v. Jones, 445 U.S. 480, 493-494, 67. Ward v. Anderson, 494 F.3d 929, 935 (10th Cir. 2007); Levitt v. 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) and Wolff v. McDonnell, 418 U.S. Univ. of Tex. at El Paso, 759 F.2d 1224, 1230 (5th Cir.1985). See also Stid- 539, 556-558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Argument of Respon- ham v. Special Indem. Fund, 2000 OK 33, ¶ 10, 10 P.3d 880, 885 (“If a dent is without merit to the extent that it relies upon an expectation or statute provides merely a rule of law to govern the subject matter with interest created by state law (Rule 6.7) to establish a due process viola- which it deals, failure to follow it strictly is but an error of law, not an tion from an alleged erroneous grant of a continuance. act in the absence of the court’s power.”). 91. The fallacy of division occurs when one infers that an attribute 68. Grotto v. Herbert, 316 F.3d198, 206-207 (2d Cir. 2003) (discussing of a “part” of a “whole” must necessarily exist because the “whole” Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921). has that same attribute. Irving M. Copi & Carl Cohen, Introduction to 69. Respondent’s reliance upon Logan v. Zimmerman Brush Co., 455 Logic 168-170 (11th ed. 2001); Harry J. Gensler, Logic: Analyzing and U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) is misplaced. That Court Appraising Arguments 337(1989). The fact that the Rules Governing explained that the Fourteenth Amendment’s Due Process Clause has Disciplinary Proceedings (the “whole”) were not designed to create been interpreted as preventing the States from denying potential liti- jurisdictional obligations does not answer the question whether a par- gants use of established adjudicatory procedures, when such an action ticular rule (a “part”) of those Rules has a jurisdictional element. would be the equivalent of denying them an opportunity to be heard upon 92. State ex rel. Bar Ass’n v. Combs, 2007 OK 65, n. 48, 175 P.3d 340, their claimed rights. Id. 455 U.S. at 429-430, citing Boddie v. Connecticut, 350 (The fundamentals of due process are applicable in lawyer disci- 401 U.S. 371, 380, 91 S.Ct. 780, 787, 28 L.Ed.2d 113 (1971). In Respon- plinary proceedings, including notice of the charges and an opportu- dent’s disciplinary proceeding the continuances of the hearing date nity to defend against them.), citing State ex rel. Oklahoma Bar Ass’n v. granted Respondent and Bar an opportunity to be heard upon their Eakin, 1995 OK 106, ¶ 15, 914 P.2d 644. claims and defenses. 93. Okla. Const. Art. 2 § 7: “No person shall be deprived of life, 70. State ex rel. Oklahoma Bar Ass’n v. Whitebrook, 2010 OK 72, ¶ 21, liberty, or property, without due process of law.” 242 P.3d 517, 522; State ex rel. Okla. Bar Ass’n v. Seratt, 2003 OK 22, ¶ 7, 94. Eastern Oklahoma Bldg. & Constr. Trades Council v. Pitts, 2003 OK 66 P.3d 390, 392; State ex rel. Oklahoma Bar Ass’n v. Minter, 2001 OK 69, 113, ¶ 8, n.2, 82 P.3d 1008, 1012 (While the Oklahoma Constitution can ¶ 23, 37 P.3d 763, 773; State ex rel. Okl. Bar Ass’n v. Minter, 1998 OK 59, afford rights greater than those granted by the United States Constitu- ¶ 19, 961 P.2d 208, 213; State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK tion, we have explained that the same equal protection component 106, 914 P.2d 644, 649; State ex rel. Oklahoma Bar Ass’n v. Lobaugh, 1988 found in the Fourteenth Amendment of the United States Constitution OK 144, 781 P.2d 806, 810-811. is present in the Due Process Clause of Okla. Const. Art. 2 § 7). 71. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary 95. Woods Development Co. v. Meurer Abstract, 1985 OK 106, 712 Proceedings, Rules 5.2, 6.1, 6.2, 6.3, 6.4 and Rule 6.8. P.2d 30, 33. 72. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary 96. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051, 111 S.Ct. 2720, Proceedings, Rule 6.8, Rule 6.12(a). 115 L.Ed.2d 888 (Part III of Court’s Opinion); Kolender v. Lawson, 461 73. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary U.S. 352, 357-358, 361, 103 S.Ct. 1855, 1858-1859, 1860, 75 L.Ed.2d 903 Proceedings, Rule 6.9, Rule 6.10. (1983); Smith v. Goguen, 415 U.S. 566, 572-573, 94 S.Ct. 1242, 1246-1247, 39 74. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary L.Ed.2d 605 (1974). See also Edmondson v. Pearce, 2004 OK 23, ¶ 48, 91 P.3d Proceedings, Rule 6.11 (a), (b), (c). 605, 629 (the void-for-vagueness doctrine requires a statute to define the 75. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary limits on the constitutional right with sufficient definiteness that ordi- Proceedings, Rule 6.11 (d). nary people understand what conduct is prohibited and in a manner that 76. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary does not encourage arbitrary discriminatory enforcement.) Proceedings, Rule 6.12 (a). 97. Flandermeyer v. Bonner, 2006 OK 87, ¶ 11, 152 P.3d 195, 199; 77. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary State ex rel. Oklahoma Bar Ass’n v. Maddox, 2006 OK 95, ¶ 15 , n.11, 152 Proceedings, Rule 6.11, Rule 6.12. P.3d 204, 210. 78. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary 98. Flandermeyer v. Bonner, 2006 OK 87 at ¶ 11, 152 P.3d at 199; State Proceedings, Rule 6.13. ex rel. Oklahoma Bar Ass’n v. Maddox, 2006 OK 95, at n.11, 209-210. 79. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary 99. Flandermeyer v. Bonner, 2006 OK 87 at ¶ 12, 152 P.3d at 199, Proceedings, Rule 6.13. explaining Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 80. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary L.Ed.2d 1010 (1972) and citing Civil Service Commission of the City of Proceedings, Rule 6.13. Tulsa v. Gresham, 1982 OK 125, ¶¶ 38-40, 653 P.2d 920. 81. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary 100. State ex rel. Oklahoma Bar Ass’n v. Maddox, 2006 OK 95, ¶ 17, 152 Proceedings, Rule 6.14. P.3d 204, 210. See also State ex rel. Oklahoma Bar Ass’n v. Lowe, 1982 OK 82. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary 20, 640 P.2d 1361, 1362 (discussion of Barker v. Wingo, 407 U.S. 514, 530, Proceedings, Rule 6.14. 92 S.Ct. 2182, 2192, 33 L.Ed.2d 1010 (1972), in the context of a Bar dis- 83. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary ciplinary proceeding.). Proceedings, Rule 6.14. 101. Maddox, 2006 OK 95, ¶ 5, 152 P.3d at 207. 84. State ex rel. Oklahoma Bar Ass’n v. Brewer, 1989 OK 172, n. 4, 794 102. In re Reinstatement of Munson, 2010 OK 27, ¶ 12, 236 P.3d 96, 101 P.2d 397, 399. (“A suspension from the practice of law for a period in excess of two 85. See, e.g., Fanning v. Brown, 2004 OK 7, ¶ 22, 85 P.3d 841, 848 (“Fan- years is tantamount to disbarment in that the suspended lawyer must ning must be afforded an opportunity to complete discovery so that the follow the same procedures for readmittance as would a disbarred coun- court will have a fully developed factual record to determine the issue.”); terpart.”) See also State ex rel. Oklahoma Bar Ass’n v. Hulett, 2008 OK 38, ¶ Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, 913 P.2d 1318, 1320 (notice 2, 183 P.2d 1014, 1015, citing State ex rel. Oklahoma Bar Ass’n v. Pacenza, pleading is made possible by the liberal opportunity for discovery and 2006 OK 23, n. 71, 136 P.3d 616, 630; Rules Governing Disciplinary Pro- other pretrial procedures to determine the relevant facts.) ceedings, 5 O.S. Supp.2002, Ch. 1, App. 1-A, Rule 11.1 & 11.4. 86. State ex rel. Oklahoma Bar Ass’n v. Brewer, 1989 OK 172, 794 P.2d 103. The Court’s decision was filed December 2006 and the suspen- 397, 399, citing State ex rel. Oklahoma Bar Ass’n v. Samara, 1984 OK 32, sion was retroactive to March 2005 when respondent had voluntarily 683 P.2d 979, 983. See also State ex rel. Oklahoma Bar Ass’n v. Minter, 2001 ceased to practice law. Maddox, 2006 OK 95 at ¶ 19, 152 P.3d at 211. OK 69, ¶ 12, 37 P.3d 763, 770 (“As long as the respondent receives a fair 104. In 1982, well before Respondent’s disciplinary proceeding, we hearing and the record presents a clear and convincing evidence of the explained that an objection to delay in the proceeding should be

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2403 accompanied with a showing of some prejudice. State ex rel. Oklahoma justiciable matters, except as otherwise provided in Article 7 of the Bar Ass’n v. Lowe, 1982 OK 20, 640 P.2d 1361, 1362. Oklahoma Constitution.); Holleyman v. Holleyman, 2003 OK 48, ¶ 17, 78 105. Respondent’s “Petition to Vacate and Motion for Order Nu[n]c P.3d 921, 928 (District Courts have jurisdiction to adjudicate the exis- Pro Tunc With Affidavit,” S.C.B.D. No. 4687, at p. 27 (Dec. 2, 2010). tence and effect of contracts.). 106. State ex rel. Oklahoma Bar Ass’n v. Gasaway, 1993 OK 133, 863 126. Subject matter jurisdiction is invoked by the pleadings filed P.2d 1189, 1192. with the court which show the general nature of the case and request 107. State ex rel. Oklahoma Bar Ass’n v. Bolton, 1995 OK 98, n. 11, 904 relief of the kind the court has power to grant. Oklahoma Dept. of Securi- P.2d 597, 601; State ex rel. Oklahoma Bar Ass’n v. Gasaway, 1993 OK 133, ties ex rel. Faught v. Blair, 2020 OK 16, ¶ 19, 231 P.3d 645, 657-658. 863 P.2d 1189, 1192. 127. State ex rel. Cartwright v. Ogden, 1982 OK 82, 657 P.2d 142. 108. State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK 106, 914 P.2d 128. State ex rel. Cartwright v. Ogden, 1982 OK 82, 657 P.2d 142, 144. 644, 652 (In an adversarial proceeding a lawyer’s function is to present In State ex rel. Cartwright the Court exercised supervisory jurisdiction to proof to the end that the case may be decided according to law.) arrest seven proceedings in four District Courts to avoid the possibility 109. State ex rel. Oklahoma Bar Ass’n v. Gasaway, 1993 OK 133, 863 of conflicting decrees with a fifth District Court exercising jurisdiction P.2d 1189, 1200. over the controversy. Id. 657 P.2d at 144. 110. State ex rel. Oklahoma Bar Ass’n v. Lobaugh, 1988 OK 144, 781 129. In Keating v. Johnson, 1996 OK 61, 918 P.2d 51, we explained P.2d 806, 811. that when a party’s request for relief before this Court failed to show 111. Respondent expressly relied upon the adversarial nature of that it was within the exclusive original jurisdiction of the Court we professional disciplinary proceedings as a reason to support some of analyzed the request on the assumption of the existence of concurrent his arguments in his disciplinary proceeding. See, e.g., “Respondent’s jurisdiction with that of a District Court. Id. 918 P.2d at 55. Motion to Dismiss on Grounds of Prosecutorial Misconduct,” No. 130. Fent v. Contingency Review Board, 2007 OK 27, ¶ 11, 163 P.2d S.C.B.D. 4687, Sept. 13, 2002. 512, 521; Keating v. Johnson, 1996 OK 61, 918 P.2d 51, 55. 112. Fed.R.Civ.P. 12(b): “Every defense to a claim for relief in any 131. 12 O.S.2001 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.191(b)(1). pleading must be asserted in the responsive pleading if one is required. 132. Keating v. Johnson, 1996 OK 61, 918 P.2d 51, 56 (Since the time But a party may assert the following defenses by motion:....” of Statehood this Court has explained that the framers of the Oklaho- 113. The first paragraph of 12 O.S.Supp. 2004 § 2012(B) states that ma Constitution intended the Supreme Court primarily as an appellate :” Every defense, in law or fact, to a claim for relief in any pleading, court.). See also, State ex rel. Cartwright v. Dunbar, 1980 OK 15, 618 P.2d whether a claim, counterclaim, cross-claim, or third-party claim, shall 900, 912 (“In reference to the contention that Koehring is liable for 1978 be asserted in the responsive pleading thereto if one is required, except taxes by reason of its legal and equitable ownership of certain proper- the following defenses may at the option of the pleader be made by ties, we hold the proper forum for litigating such controversy is in the motion:....” District Court and not the Supreme Court in an original proceeding.”). 114. Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990) (Asserting a Accord, 12 O.S.2001 Ch. 15, App. 1, Okla. Sup. Ct. Rule 1.17 (lists the personal jurisdictional defect in the answer did “not preserve the workload of the Court that may be divided into thirteen categories, defense in perpetuity,” and this defense “may be lost by failure to and the citations of authority cited by the Court therein.). assert it seasonably, by formal submission in a cause, or by submission 133. A slight variation on the meaning of the abbreviation “qui tam” through conduct.”), quoting Burton v. Northern Dutchess Hosp., 106 may be found, but the basic meaning has not changed. For example, F.R.D. 477, 481 (S.D.N.Y.1985) and Neirbo Co. v. Bethlehem Shipbuilding some courts state that “qui tam” is an abbreviation for “qui tam pro domino Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 155, 84 L.Ed. 167 (1939). See also rege quam pro seipso,” which literally means “he who as much for the king Peterson v. Highland Music, Inc., 140 F.3d 1313,1318 (9th Cir. 1998) as for himself.” U.S. ex rel. S. Prawer and Co. v. Fleet Bank of Maine, 24 F.3d (“Most defenses, including the defense of lack of personal jurisdiction, 320, n. 7, 324 (1st Cir.1994), citing United States ex rel. Springfield Terminal may be waived as a result of the course of conduct pursued by a party Ry. Co. v. Quinn, 14 F.3d 645, n.1, 647 (D.C.Cir.1994). See also U.S. ex rel. during litigation.”). Falsetti v. Southern Bell Tel. and Tel. Co., 915 F.Supp. 308, 309, n.1, (N.D.Fla. 115. Shaffer v. Jeffrey, 1996 OK 47, 915 P.2d 910, 913. 1996). A similar definition is that “qui tam” is an abbreviation of the Latin 116. See Respondent’s “Cross Complaint and Counter Complaint,” phrase qui tam pro domino rege quam pro si ipso in hac parte sequitur, which No. S.C.B.D. 4687, filed April 1, 2002, and “Respondent’s Cross- means “Who sues on behalf of the King as well as for himself.” U.S. v. Claimant’s and Counter-Claimant’s Application for Emergency Sum- Florida-Vanderbilt Development Corp., 326 F.Supp. 289, 290 (S.D.Fla. 1971) mary and Immediate Disposition Upon Partys’ Complete Failure to citing Osborne’s Concise Law Dictionary (5th ed.). Timely Answer Qui Tam Cross-Complaint and Counter-Complaint,” 134. Qui tam remedy provided for the recovery of funds. Respon- No. S.C.B.D. 4687, filed June 13, 2002. dent’s qui tam request for prosecution of Bar discipline against another 117. Respondent’s “Cross Complaint and Counter Complaint,” lawyer and an order compelling an investigation of the Bar Association S.C.B.D. No. 4687, filed April 1, 2002, at p. 8 (material omitted and are closer to the remedies of injunction and mandamus. See discussion explanation added). in note 135 infra. 118. “Respondent’s Cross-Claimant’s and Counter-Claimant’s 135. A non-Hohfeldian plaintiff sues to secure judicial relief that Application for Emergency Summary and Immediate Disposition would benefit a public entity or the community as a whole. State ex rel. Upon Partys’ Complete Failure to Timely Answer Qui Tam Cross- Macy v. Bd. of County Comr’s of Oklahoma County, 1999 OK 53, n. 28, 986 Complaint and Counter-Complaint,” No. S.C.B.D. 4687, filed June 13, P.2d 1130, 1138; A-Plus Janitorial & Carpet Cleaning v. Employers’ Workers’ 2002, at p. 5. Compensation Ass’n, 1997 OK 37, n. 23, 936 P.2d 916, 924; Flast v. Cohen, 119. Respondent’s “Cross Complaint and Counter Complaint,” 392 U.S. 83, 118-120, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (Harlan, J., S.C.B.D. No. 4687, filed April 1, 2002, at p. 8. dissenting); Jaffe, The Citizen As Litigant In Public Actions: The non- 120. State ex rel. Oklahoma Bar Ass’n v. Bradley, 1987 OK 78, 746 P.2d Hohfeldian or Ideological Plaintiff, 116 U.Pa.L.Rev. 1033 (1968). See also 1130, 1134; Matter of Evinger, 1979 OK 127, 604 P.2d 844-845. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L.Rev. 121. Respondent’s “Notice of Reservation Federal Claims, Issues, 1265, 1269, 1273-1274 (1961) (prototypes for the current public action Rights, Questions, and Defenses,” S.C.B.D. 4687, filed April 22, 2011, at brought by a non-Hohfeldian plaintiff are found in both the historic pp. 7-8 (lawyer’s name and additional material omitted). prerogative writ of mandamus and the bill in equity for an injunction 122. Okla. Const. Art. 2 § 6: “The courts of justice of the State shall which tested the legality of public officials’ conduct). A Hohfeldian be open to every person, and speedy and certain remedy afforded for plaintiff seeks to adjudicate a claimed right, privilege, immunity, or every wrong and for every injury to person, property, or reputation; power with respect to another party. State ex rel. Macy v. Bd. of County and right and justice shall be administered without sale, denial, delay Comr’s of Oklahoma County, 1999 OK 53, n. 28, 986 P.2d at 1138. or prejudice.” 136. Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069, 1073 123. Thayer v. Phillips Petroleum Co., 1980 OK 95, 613 P.2d (“Since 1893 this jurisdiction has recognized that forms of action are 1041,1044-1045. abolished.”). 124. Jernigan v. Jernigan, 2006 OK 22, ¶ 16, 138 P.3d 539, 545. See also 137. Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069, 1073. Colton v. Huntleigh USA Corp., 2005 OK 46, n. 4, 121 P.3d 1070 (An 138. Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069, 1073 Oklahoma District Court possesses unlimited original jurisdiction of (material omitted and explanatory phrase substituted). all justiciable matters, except as otherwise limited by the Oklahoma 139. The issue raised by Respondent is similar to that discussed in and Federal Constitutions.). State ex rel. Turpen v. A 1977 Chevrolet Pickup Truck, 1988 OK 38, 753 P.2d 125. Red Rock Mental Health v. Roberts, 1996 OK 117, 1997 OK 133, 1356, where we explained that the subject matter jurisdiction of the 940 P.2d 486, 491 (The unlimited district court’s range of cognizable court to hear an in rem civil forfeiture proceeding was not invoked by claims extends to all actions in law and equity.); State ex rel. Southwest- the filing of a criminal information charging the unlawful sale of ern Bell Tel. Co. v. Brown, 1974 OK 19, 519 P.2d 491, 495 (where an action marijuana. In the present case the Bar’s invocation of this Court’s is brought in tort the subject matter jurisdiction is properly laid in the exclusive original jurisdiction to adjudicate Bar discipline by the filing District Court since that court has unlimited original jurisdiction of all of the formal complaint did not invoke subject matter original jurisdic-

2404 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 tion to adjudicate tort and contract disputes between Respondent and ¶1 We granted certiorari to resolve a conflict his former lawyer, or any subject matter original jurisdiction to adjudi- cate a public wrong prosecuted by a private party. Respondent’s cross- between the Court of Civil Appeals differing complaint raising these nondisciplinary claims is similarly flawed in interpretations1 of the Workers’ Compensation that the original subject matter jurisdiction of this Court is not created 2 merely by allegations in a pleading, but allegations showing that the statute 85 O.S. 2001 §22(7). This statute pro- Supreme Court has the adjudicative power to proceed in a case of the vides the schedule of compensation for perma- character presented by those allegations. Id. 753 P.2d at 1359. Respondent failed to satisfy this requirement. nent and temporary disability and subsection (7) limits the sum of all cumulative awards for 2011 OK 81 an individual employee’s lifetime. It provides EVANS & ASSOCIATES UTILITY in pertinent part: SERVICES, and ZURICH AMERICAN . . .the sum of all permanent partial disabil- INSURANCE COMPANY, Petitioners, vs. ity awards, excluding awards against the RUBEN ESPINOSA and THE WORKERS’ Multiple Injury Trust Fund and awards for COMPENSATION COURT, Respondents. amputations, and surgeries, shall not No. 108,017. October 4, 2011 exceed one hundred percent (100%) per- manent partial disability for any individu- CERTIORARI TO THE COURT OF CIVIL al. An individual may not receive more APPEALS DIVISION III than five hundred twenty (520) weeks’ Honorable Cherri Farrar, Workers’ compensation for permanent partial dis- Compensation Judge ability, but may receive other benefits under the Workers’ Compensation Act if other- ¶0 The petitioner, Ruben Espinosa, sought wise eligible as provided in the Workers’ permanent partial disability benefits for inju- Compensation Act. ries to his hands, arms, and shoulders. The Workers’ Compensation Court awarded bene- ¶2 One division of the Court of Civil Appeals fits, but a three-judge en banc panel reduced the had interpreted the exclusion of awards against award to account for Espinosa’s previously the Multiple Injury Trust Fund and awards for awarded benefits for injuries to other parts of amputations, and surgeries, to apply to both his body. The Court of Civil Appeals vacated the 100% limitation and the 520 week limita- the panel, determining that both the trial court tion. In this cause, the appellate court deter- and the panel misapplied the applicable stat- mined that the exclusion applies to the 100% ute, 85 O.S. 2001 §22(7). We granted certiorari limitation, but not the 520 week limitation. We to resolve a conflict between two Court of Civil hold that when the Workers’ Compensation Appeals’ opinions with differing interpreta- Court awards compensation for an accidental tions of the limitations provided in §22(7). We personal injury or occupational disease, pursu- hold that when the Workers’ Compensation ant to 85 O.S. 2001 §22(7),3 the sum of all per- Court awards compensation for an accidental manent partial disability awards is limited to a personal injury or occupational disease, pursu- total of 100% or 520 weeks for any individual, ant to 85 O.S. 2001 §22(7), the sum of all perma- but awards against the Multiple Injury Trust nent partial disability awards is limited to a Funds, or awards for amputations and surger- total of 100% or 520 weeks (10 years) for any ies are excluded from both limitations. individual, but awards against the Multiple FACTS Injury Trust Funds, or awards for amputations and surgeries are excluded from both of these ¶3 The petitioner, Evans & Associates Utility limitations. Services (employer) employed the respondent, Ruben Espinosa (Espinosa/employee) as a CERTIORARI PREVIOUSLY GRANTED; manual laborer. During the course of his COURT OF CIVIL APPEALS OPINION employment, Espinosa suffered several inju- VACATED; EN BANC PANEL OVERRULED; ries which resulted in multiple Workers’ Com- TRIAL COURT OVERRULED; CAUSE pensation awards. The first award was in 2006, REMANDED WITH INSTRUCTIONS. in which the employee was awarded perma- Timothy E. Lurtz, Oklahoma City, Oklahoma, nent partial disability benefits for 27% binaural for Petitioners. hearing loss totaling 89.1 weeks of benefits.4 The second award was in July of 2009, in which John C. Forbes, Midwest City, Oklahoma, for the employee’s lungs were determined to be Respondent Espinosa. 6% impaired for which he received 30 weeks of KAUGER, J: compensation.5

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2405 ¶4 The third award, on August 11, 2009, was ¶8 The employer appealed the order to a for injuries Espinosa sustained to his right leg, three-judge panel, contending that the award knee, neck or cervical spine, back, and lumbar exceeded the cumulative 520 week limit on spine. He was determined to be 20% impaired permanent partial disability because the to the right leg and knee, 10% to the neck and employee had previously been awarded per- 40% to the back for a total of 305 weeks of ben- manent partial disability for past injuries. On efits. Apparently the back and knee injuries January 27, 2010, the panel vacated a portion of required surgery.6 The present cause relates to the trial court’s findings and substituted its an alleged cumulative trauma injury to Espino- own findings. It found that Espinosa was enti- sa’s shoulders, arms and hands. tled to 409 weeks of compensation for his inju- ¶5 On January 11, 2005, the employee filed ries, just as the trial court had found. It also his Form 3 with the Workers’ Compensation determined, like the trial court, that prior to this Court alleging cumulative trauma injury to cause, the employee had been awarded 424.1 both hands and arms with January 5, 2005, as weeks of compensation for previous injuries. the last date of exposure. On June 22, 2005, he ¶9 Nevertheless, the panel found that added injury to both shoulders. On April 13, because 200 weeks of compensation was 2005, The employer denied that Espinosa sus- attributable to back surgery and 20 weeks tained any injury in the course and scope of were attributable to the right knee, 220 weeks employment. should be subtracted from the 424.1 weeks ¶6 After several interim orders relating to previously awarded. We note that if 220 weeks medical treatment, medical case management, were subtracted from 424.1 previously award- and temporary disability, a hearing was held ed, the total number would be 204.1, however August 31, 2009.7 At the hearing, the court was the inexplicable number the panel came up notified of the previous 2006 and two 2009 with was 169.1. It made this determination Workers’ Compensation awards for permanent even though the record is unclear as to what partial disability. The court entered its order on portion of the employee’s prior awards were September 8, 2009, awarding permanent par- actually attributable to surgeries. tial disability benefits related to the hands, ¶10 Ultimately, the panel determined that arms and shoulders injuries. the employee was entitled to 350.9 weeks of ¶7 The September 8, 2009, order provides compensation. [The statutory limit of 520 minus that: 1) the employee became aware of his inju- 169.1, but the correct number should have been ries in November of 2003; 2) the last date of 520 minus 204.1 for a total of 315.9 weeks of exposure to injury was January 7, 2005; and 3) benefits.] The employer appealed. the employee was entitled to $264.00 per week ¶11 The Court of Civil Appeals: 1) noted the for permanent partial disability. The court also lack of evidence regarding previous surgeries determined Espinosa to be permanently and the erroneous calculations of the panel; 2) impaired 20% to the left hand, 20% to the right vacated the panel’s decision and held that an hand, 24% to the left arm, 20% to the right arm, employee may receive either a total permanent 20% to the left shoulder and 20% to the right partial disability award of 100%, after exclud- shoulder. The court found that the employee ing Multiple Injury Trust Fund awards and was entitled to be paid for 409 weeks of perma- awards for surgeries and amputations or 520 nent partial disability. The employer noted the weeks of permanent partial disability without fact that the employee had previously been such exclusions; and 3) recognized that its deci- awarded 89.1 weeks in 2006, and 30 and 305.0 sion was contrary another division’s opinion in weeks in 2009 for a total of 424.1 weeks and United General Contractors v. Campbell, 2010 requested that the award be limited to 95.9 OK CIV APP 10, 231 P.3d 703. We granted cer- weeks pursuant to 85 O.S. 2001 §22(7).8 An tiorari on March 28, 2011, to resolve the two award of 95.9 would have met the maximum conflicting statutory constructions. total award of 520 allowed by §22(7). [The 520 statutory limit minus the 424.1 previously ¶12 PURSUANT TO 85 O.S. 2001 §22(7), awarded equals 95.9]. The court denied this AWARDS AGAINST THE MULTIPLE request and also directed the employer to pay INJURY TRUST FUNDS, OR AWARDS FOR medical expenses. AMPUTATIONS AND SURGERIES ARE

2406 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 EXCLUDED FROM BOTH THE 100% AND The Rivas Court held that it could, noting that 520 WEEK LIMITATIONS. the 1997 injury was a totally new injury and not an exacerbation of a continuing injury. ¶13 The employer argues that the clear lan- Even though the Rivas Court recognized that guage of 85 O.S. 2001 §22(7)9 indicates that the claimant had previously been awarded there are two distinct and separate caps on medical treatment and surgery, there was no aggregate permanent partial disability awards exclusion of such awards from the 100% statu- — one lower cap of 100% which allows the tory limitation because the statute did not pro- exclusion of surgeries and one higher as a cap vide for such exclusions. In fact, at the time, the on lifetime awards to 520 weeks without any statute specifically included awards against the exclusions. The employee contends that the Multiple Injury Trust Fund. surgery exclusion must be read in conjunction with both limitations. ¶17 Rivas was decided on September 19, 2000, and the Legislature amended §22(7) dur- ¶14 The Workers Compensation Act was ing the next legislative session in 2001. The designed to provide compensation to covered amended version specifically excluded awards workers for loss of earning capacity, incurred against the Multiple Injury Trust Fund and as a result of work-related accidents.10 It is a awards for amputations and surgeries from the mutual compromise in which the employee 100% limitation. It provided: relinquishes his/her right to sue for damages sustained in job-related injuries; and the The sum of all permanent partial disability employer accepts no-fault liability for a statu- awards, excluding awards against the torily prescribed measure of damages.11 How- Multiple Injury Trust Fund and awards ever, in exchange for the employer’s greater for amputations, and surgeries, shall not and more certain exposure, the Act also pro- exceed one hundred percent (100%) per- vides the employer with certain advantages. It manent partial disability for any individu- offered the employer a maximum loss and pro- al. An individual may not receive more tected employers from excessive judgments.12 than five hundred twenty (520) weeks’ The object of the Act is to compensate, within compensation for permanent partial dis- the limits of the act, for loss of earning power ability, but may receive other benefits under and disability to work occasioned by injuries to the Workers’ Compensation Act if other- the body in the performance of ordinary wise eligible as provided in the Workers’ labor.13 Compensation Act.16 (Emphasis supplied.) ¶15 In Rivas v. Parkland Manor, 2000 OK 48, Clearly the Legislature recognized that an 12 P.3d 452, the Court addressed one of the injured worker such as the Rivas claimant may limitations provided to employers within the have had to endure amputations or surgeries Act. Rivas involved an injured claimant who as a result of on-the-job injuries and it amended had been previously adjudicated 99.85% perma- the statute to exclude compensation from those nent partially disabled who sought additional surgeries when limiting cumulative award benefits for a 1997 shoulder injury which result- totals. This make sense because, were it not for ed in permanent partial disability of 30%. The the injured workers previous on-the-job inju- claimant’s previous awards included medical ries, the worker would not have had any previ- treatment and surgery and had occurred prior to ous amputations or surgeries. the 1997 shoulder injury, when 85 O.S. 1991 ¶18 Nothing in the 2001 statutory change §22(7) contained no limitations of the percentage was added or deleted to the next sentence a worker could be adjudicated permanently par- which also limited the total cumulative weeks tially disabled.14 However, by 1997, the legisla- to 520 weeks. We look to the text of the act, its ture had amended §22(7) to limit a worker’s underlying policies and to the purposes of cumulative permanent partial disability to workers’ compensation generally in applying 100%.15 The legislature did not, at this time, the provisions of the Act.17 The logical interpre- carve out any exceptions for surgeries to be tation of 22(7) is to apply the exceptions to both excluded from the 100% or 520 week limita- the provisions limiting permanent partial dis- tions. ability 100 % and to 520 weeks. This is particu- ¶16 The question the Court addressed in larly true considering that after the 520 week Rivas was whether the 100% limit could consti- limitation, the statute also provides that a tutionally be applied to the injured claimant. claimant “may receive other benefits under the

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2407 Workers’ Compensation Act if otherwise eligi- those awards is not reflected in the record, we ble as provided” in the Act. Other benefits in overrule the three-judge panel and the trial the Act would necessarily include medical court and remand the matter for a determina- treatment and surgeries. tion as to what portion of the previous awards were actually attributable to surgeries so that ¶19 There is no rational reason expressed in they may be excluded from the employee’s the statute or otherwise as to why the Legisla- cumulative limitations as provided by 85 O.S. ture would intend to treat either a claimant or 23 an employer differently when an injured work- 2001 §22(7). er exceeds 520 weeks but not 100% when both CERTIORARI PREVIOUSLY GRANTED; the 100% and 520 week limitations on employ- COURT OF CIVIL APPEALS OPINION er awards are aimed at capping an employer’s VACATED; EN BANC PANEL OVERRULED; liability. Accordingly, we hold that Workers’ TRIAL COURT OVERRULED; CAUSE Compensation Court awards compensation for REMANDED WITH INSTRUCTIONS. an accidental personal injury or occupational disease, pursuant to 85 O.S. 2001 §22(7),18 the COLBERT, V.C.J., KAUGER, WATT, EDMOND- sum of all permanent partial disability awards SON, REIF, COMBS, and GURICH, JJ., concur. is limited to a total of 100% or 520 weeks for TAYLOR, C.J., and WINCHESTER, J., dissent. any individual, but awards against the Multi- ple Injury Trust Funds, or awards for amputa- 1. Oklahoma Supreme Court Rules, 12 O.S. 2001 Ch. 1 App. 1 Rule 1.178 provides in pertinent part: tions and surgeries are excluded from both of (a) Reasons for Certiorari. these limitations. A review of an opinion of the Court of Civil Appeals in the Supreme Court on writ of certiorari as provided in 20 O.S.1991 CONCLUSION § 30.1 is a matter of sound judicial discretion and will be granted only when there are special and important reasons and a major- ¶20 When the Workers’ Compensation Court ity of the justices direct that certiorari be granted. The following, while neither controlling nor fully measuring the Supreme awards compensation for an accidental per- Court’s discretion, indicate the character of reasons which will be sonal injury or occupational disease, pursuant considered: to 85 O.S. 2001 §22(7),19 the sum of all perma- . . .(3) Where a division of the Court of Civil Appeals has ren- dered a decision in conflict with the decision of another division nent partial disability awards is limited to a of that court; . . . total of 100% or 520 weeks for any individual, 2. Title 85 O.S. §22 has been amended 39 times since its inception. but awards against the Multiple Injury Trust However, the general rule is that the law in effect at the time of an employee’s injury controls in workers’ compensation matters. A com- Funds, or awards for amputations and surger- pensation claim is controlled by the laws in existence at the time of ies, are excluded from both of these limitations. injury and not by laws enacted thereafter. King Manufacturing v. Meadows, 2005 OK 78, ¶11, 127 P.3d 584; Beets v. Metropolitan Life Ins. Here, the trial court did not exclude anything Co., 1999 OK 15, ¶2, fn. 2, 995 P.2d 1071. The trial court determined that attributable to the surgeries from the employ- the employee first became award of his injuries in 2003. The law in ee’s cumulative totals. On the other hand, the effect at that time was 85 O.S. 2001 §22(7) and it provides: 7. Previous Disability. The fact that an employee has suffered three-judge panel adjusted the award attribut- previous disability or impairment or received compensation able to surgery, even though the record is therefor shall not preclude the employee from compensation for a later accidental personal injury or occupational disease; but in unclear as to the exact portion attributable to determining compensation for the later accidental personal previous surgeries. injury or occupational disease the employee’s average weekly wages shall be such sum as will reasonably represent the ¶21 When reviewing resolutions of fact on employee’s earning capacity at the time of the later accidental personal injury or occupational disease. In the event there exists non-jurisdictional issues from a three-judge a previous impairment which produced permanent disability panel of the Workers’ Compensation Court and the same is aggravated or accelerated by an accidental per- under the statutory scheme applicable to this sonal injury or occupational disease, compensation for perma- nent disability shall be only for such amount as was caused by cause, we do not re-weigh the evidence, but such accidental personal injury or occupational disease and no instead look for any competent evidence to additional compensation shall be allowed for the pre-existing 20 disability or impairment. The sum of all permanent partial dis- support the trial court’s findings. Competent ability awards, excluding awards against the Multiple Injury evidence supporting the findings of a three- Trust Fund and awards for amputations, and surgeries, shall not judge panel of the Workers’ Compensation exceed one hundred percent (100%) permanent partial disability for any individual. An individual may not receive more than five Court is that which is relevant and material to hundred twenty (520) weeks’ compensation for permanent par- the issues to be determined.21 In the absence of tial disability, but may receive other benefits under the Workers’ competent evidence, the decision of a three- Compensation Act if otherwise eligible as provided in the Work- ers’ Compensation Act. judge panel may be viewed as legally errone- 3. Title 85 O.S. 2001 §22(7), see note 2, supra. ous and subject to appellate vacation.22 Because 4. The 2006 award was mentioned in the August 31, 2009, hearing before the trial judge. The only other details regarding the award were there is evidence that prior awards were attrib- that it was case number 2005-12289-A and the order was filed April 28, utable to surgeries, but the actual portion of 2006. Otherwise no other information is provided.

2408 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 5. The July 2009 award was also mentioned in the August 31, 2009 OKC Refining Co., Inc., v. Gold, 1985 OK 42, ¶12, 701 P.2d 1034; City of hearing before the trial judge. The only other details regarding it were Oklahoma City v. Lindsey, 1976 OK 48, ¶14, 549 P.2d 81. that is was case number 2005-12733-R. 22. In the Matter of Death of Gray v. Ultramar Diamond, see note 6. Again, details about the awards are limited to being mentioned 20, supra; In the Matter of Death of Bryan v. Bryan, see note 20, supra. in the August 30, 2009 hearing before the trial court. The award was Hughes v. Coal Grain Co., see note 20, supra; P.F.L. Life Ins. v. Franklin, made in case number 2005-00305-H on August 11, 2009. The employee 1998 OK 32, ¶26, 958 P.2d 156. also received $400.00 for disfigurement for scarring. 23. Title 85 O.S. 2001 §22(7), see note 2, supra. 7. For example, a June 6, 2005 order was entered allowing Espinosa to be examined by a Doctor. Medical treatment was authorized on 2011 OK 83 November 9, 2005. The matter was referred to Medical Case manage- ment on January 24, 2006 and medical benefits were paid to a doctor CITY OF TULSA; and KATHY TAYLOR, and a rehabilitation facility on March 7, 2006. An order for medical treatment including surgery was entered March 23, 2006. Temporary Mayor of the City of Tulsa, Plaintiffs/ Total Disability was awarded March 3, 2009, with the issue of possible Appellees, BANK OF OKLAHOMA, N.A., over-payment reserved. Finally, the original trial judge recused on July 16, 2009. Defendant, vs. BANK OF OKLAHOMA, 8. Title 85 O.S. 2001 §22(7), see note 2, supra. N.A.; MARILYN BLEDSOE; ROBERT P. 9. Title 85 O.S. 2001 §22(7), see note 2, supra. SUTTON; CHERYL L. SUTTON; CYNTHIA 10. Thomas v. Oklahoma Orthopedic & Arthritis Foundation Inc., 1995 OK 47, ¶15, 903 P.2d 279. L. SUTTON; NANCY DAVIS; MICHAEL E. 11. Weber v. Armco, Inc., 1983 OK 53, ¶4, 663 P.2d 1221. STAGGS; REGINA A. STAGGS; ROBERTA 12. Upton v. State ex. rel. Dept. of Corrections, 2000 OK 46, ¶8, 9 P.3d 84. L. DAVIS; DOUGLAS W. McLAIN; 13. Smalygo v. Green, 2008 OK 34, ¶9, 184 P.3d 554; Strong v. Lau- MICHAEL K. ASHLEY; LAURA bach, 2004 OK 21, ¶10, 89 P.3d 1066; Phillips v. Duke Mfg. 1999 OK 25, MANTOOTH; and ARTHUR ADAMS, ¶6, 980 P.2d 137. 14. Title 85 O.S. 1991 §22(7). Defendant/Appellants. 15. Rivas v. Parkland Manor, 2000 OK 68, 12 P.3d 452 held that the version of the statute in effect when the new 1997 injury occurred Case No. 109,449. October 11, 2011 applied. In King Manufacturing v. Meadows, see note 2, supra the Court held that when the injury is a change in condition rather than a APPEAL FROM THE DISTRICT COURT new injury, the statute in effect at the time of the initial injury governs. OF TULSA COUNTY Title 85 O.S. Supp. 1997 §22(7) provided: 7. Previous Disability. The fact that an employee has suffered HONORABLE DEBORAH C. previous disability or impairment or received compensation SHALLCROSS, DISTRICT JUDGE. therefor shall not preclude him from compensation for a later accidental personal injury or occupational disease; but in deter- ¶0 Qui Tam action was brought against the mining compensation for the later accidental personal injury or occupational disease his average weekly wages shall be such City of Tulsa alleging the settlement of the sum as will reasonably represent his earning capacity at the time Great Plains loan by the City and the Bank of of the later accidental personal injury or occupational disease. In the event there exists a previous impairment which produced Oklahoma, which was approved by the Tulsa permanent disability and the same is aggravated or accelerated County District Court, was improper. Declara- by an accidental personal injury or occupational disease, com- tory action was had that included the Qui Tam pensation for permanent disability shall be only for such amount as was caused by such accidental personal injury or occupational applicants as defendants. The district court disease and no additional compensation shall be allowed for the found a plausible unjust enrichment claim pre-existing disability or impairment. The sum of all permanent partial disability awards, including awards against the Special against the City of Tulsa. This matter was Indemnity Fund, shall not exceed one hundred percent (100%) appealed and retained by this Court. We find permanent partial disability for any individual. An individual the unjust enrichment claim to be unviable, may not receive more than five hundred twenty (520) weeks’ compensation for permanent partial disability, but may receive and the Statute of Limitations would bar the other benefits under the Workers’ Compensation Act if otherwise unjust enrichment claim against the City. eligible as provided in the Workers’ Compensation Act. 16. Title 85 O.S. 2001 §22(7), see note 2, supra. RULING OF TRIAL COURT REVERSED 17. Sizemore v. Continental Cas. Co., 2006 OK 36, ¶24, 142 P.3d 47; Parret v. Unnico Serv. Co., 2005 OK 54, ¶18, 127 P.3d 572. AND CAUSE REMANDED 18. Title 85 O.S. 2001 §22(7), see note 2, supra. 19. Title 85 O.S. 2001 §22(7), see note 2, supra. Anthony P. Sutton, Marlin Ray Davis, SUT- 20. In the Matter of Death of Gray v. Ultramar Diamond, 2004 OK TON, DAVIS & STAGGS, P.A., Tulsa, Oklaho- 63, ¶24, 100 P.3d 691; In the Matter of Death of Bryan v. Bryan, 2003 OK 70, ¶18, 76 P.3d 653; B.E. & K. Construction v. Abbott, 2002 OK 75, ¶1, ma, for Defendants/Appellants. fn. 1, 59 P.3d 38; Hughes v. Coal Grain Co., 1998 OK 76, ¶5, 964 P.2d 206. In 2011, the Legislature changed this standard of review. The new Adam Keith Marshall, Cori D. Powell, Robert statute, 85 O.S. Supp. 2011§340, provides in pertinent part: B. Sartin, BARROW & GRIMM, P.C., Tulsa, . . .The Supreme Court shall have original jurisdiction of such action, and shall prescribe rules for the commencement and trial Oklahoma, for Plaintiffs/Appellees Qui Tam of the same. After the effective date of this act, regardless of the Taxpayers. date of injury, the Supreme Court may modify, reverse, remand for rehearing, or set aside the order or award upon any of the Frederic Griffin Dorwart, Michael J. Medina, following grounds: 1. The Court acted without or in excess of its powers; Tulsa, Oklahoma, for Defendant. 2. The order or award was contrary to law; 3. The order or award was procured by fraud; or COMBS, J. 4. The order or award was against the clear weight of the evi- dence. . . . PROCEDURAL AND FACTUAL 21. In the Matter of Death of Gray v. Ultramar Diamond, see note BACKGROUND 20, supra; In the Matter of Death of Bryan v. Bryan, see note 20, supra.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2409 ¶1 On November 30, 2000, the City Council 2004, BOK declared trigger events, as defined of Tulsa decided to encourage the initiation of by the Support Agreement which would require new direct nonstop airline service to the busi- TAIT to purchase the mortgaged property, ness centers of the East and West coasts, and were actionable. Thereafter, the Federal Avia- voted to approve a Memorandum of Under- tion Administration (FAA) advised TAIT that standing between the Tulsa Industrial Author- TAIT should not use any of TAIT’s funds in ity (TIA) and the City of Tulsa which would violation of the FAA Revenue Use Policy (Poli- convey to the TIA certain real property known cy and Procedures for the Use of Airport Rev- as Air Force Plant Number 3 (Property). The enue, Federal Register February 16, 1999, at purpose of the transfer was to allow TIA to 7696, and following, “Revenue Use Policy”). mortgage the Property to the Bank of Oklaho- TAIT asserted that all TAIT funds were Airport ma (BOK) in support of a non-recourse loan by Revenue per the FAA Revenue Use Policy and the Bank to TIA so that TIA could, in turn, refused to perform its obligation, under the make a $30,000,000.00 aggregate loan (Great Support Agreement, to purchase the Property Plains Loan) to Great Plains Airlines, Inc. and the Great Plains Loan. (Great Plains). This transfer was to allow the ¶4 As a result of TAIT not purchasing the Tulsa Airports Improvement Trust (TAIT) to property and the Great Plains Loan, TIA, by enter into a Support Agreement, pursuant to and through its attorney-in-fact, Bank brought which TIA, in the event of a default would suit against TAIT and its former attorney, J. have the option of selling the Property to TAIT Richard Studenny, and Studenny and Associ- which would be done by direction of the BOK. ates, a Professional Corporation (Studenny) in Upon exercise of such option, the TIA would an action styled Tulsa Industrial Authority v. sell, transfer and convey the property to TAIT, Tulsa Airports Improvement Trust, City of Tulsa, J. to satisfy the outstanding loan balance. Richard Studenny and Studenny and Associates, in ¶2 This transaction contemplated by the City the district court of Tulsa County, Oklahoma, of Tulsa Memorandum and approved by the in case number CJ-2004-06124. TAIT responded City Council, the Board of Trustees of TAIT, to the lawsuit and alleged the Support Agree- and the Board of Trustees of TIA was consum- ment was unlawful and an unenforceable con- mated and publicly announced on December tract because TAIT could not purchase the 21, 2000. The City Council approved a Quit Great Plains Loan and Property by reason that Claim Deed on December 4, 2000, from the all of TAIT’s funds were airport revenues and City of Tulsa to TIA, recorded on December 27, such purchases would violate the FAA Reve- 2000, in the Tulsa County Land Records. BOK nue Use Policy. made a loan of $30,000,000 to TIA, TIA made ¶5 On January 5, 2007, the district court the Great Plains Loan to Great Plains, and TIA entered an Order determining certain TAIT assigned the loan (without recourse) to the assets were not airport revenues as alleged by Bank. TIA mortgaged the Property to BOK to TAIT. Subsequent thereto, the parties entered secure BOK’s loan to TIA but did not file the into an Interim Settlement Agreement dated mortgage in the Land Records of Tulsa County, February 26, 2007, whereby the parties agreed Oklahoma. TIA, TAIT and BOK entered into to make a cooperative effort to determine the the Support Agreement on December 21, 2000, extent to which TAIT had revenues that were pursuant to which TIA was granted the Default not considered airport revenues subject to the Remedies in the event Great Plains failed to FAA Revenue Use Policy or FAA grant restric- achieve certain business development mile- tions which would assist the parties in attempt- stones or defaulted on the Great Plains loan. ing to reach a settlement of the lawsuit. During TIA irrevocably appointed BOK to act as its the course of its investigation, BOK identified attorney-in-fact to enforce the promises made additional revenues and assets that may not be by TAIT in the Support Agreement. airport revenues subject to the restriction ¶3 Great Plains failed to achieve its business imposed by the FAA Revenue Use Policy or development milestones and subsequently, on FAA grant restrictions (Non-Restricted Assets). or about March 21, 2004, defaulted under the However, these Non-Restricted Assets are, in terms of the Great Plains Loan in accordance fact, airport revenues (as determined by the with the terms of the Support Agreement leav- FAA) and, if used to satisfy the obligation to ing a balance of approximately seven million the bank, TAIT could be subject to severe FAA dollars owed to the Bank. On or about June 22, penalties which would result in serious conse-

2410 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 quences to TAIT and Airport operations. Dur- ¶9 On or about July 8, 2008, the City of Tulsa ing the course of this investigation, in 2008, received a Qui Tam Demand from the Taxpay- BOK alleges it identified a claim against the ers asserting that the Settlement Agreement City of Tulsa arising out of the facts and cir- and/or Settlement Payment was not autho- cumstances of the subject transaction. rized by Oklahoma Law. The Taxpayers assert- ed the City of Tulsa had no legal obligation, ¶6 In March of 2008, BOK provided to TAIT and will never have the legal obligation, to pay and the City of Tulsa a second amended peti- the underlying claim in the lawsuit, and that tion BOK intended to file on TIA’s behalf in the the Taxpayers of the City of Tulsa will be sig- Lawsuit. This petition added the City of Tulsa nificantly prejudiced if corrective action was as a defendant in the lawsuit, and alleged the not taken to reverse the course. At the time the City of Tulsa, through the actions of its employ- City received the Taxpayers’ Qui Tam Demand, ees and/or agents, had been unjustly enriched the City of Tulsa had not made the Settlement by the subject transaction. As of March 31, Payment. 2008, the balance due to BOK was the sum of $11,648,294.00. The City of Tulsa, TAIT and ¶10 On July 14, 2008, and July 15, 2008, the their legal counsel evaluated the legal merits of City received what Taxpayers referred to as BOK’s petition and specifically the BOK’s claim Supplements to Taxpayers’ Qui Tam Demand against the City of Tulsa, the City of Tulsa’s from Taxpayers’ counsel. On July 17, 2008, the potential exposure to liability, the costs of City received a letter from Taxpayers’ counsel defending the claim, as well as, the overall risk which added two additional Taxpayers. On to the City of Tulsa and/or airport if an adverse August 4, 2008, the City transferred $7.1 mil- judgment for the full amount owed to BOK lion to BOK pursuant to the Settlement Agree- was entered against the City of Tulsa or TAIT. ment. On August 6, 2008, the City received another letter from the Taxpayers, dated July ¶7 On June 25, 2008, TIA filed the amended 30, 2008, which repeated the Taxpayers’ prior petition as a Second Amended Petition which demands. added the City of Tulsa as a defendant in the ¶11 The City of Tulsa and Kathy Taylor, lawsuit. The Second Amended Petition was Mayor of the City of Tulsa, filed a Declaratory properly served to the City of Tulsa. The City Judgment Action against the Bank of Oklaho- denied TIA’s allegations in its Answer to the ma and multiple individual defendants (Tax- Second Amended Petition filed June 25, 2008, payers) on July 14, 2008. Plaintiffs filed an however, the City sought settlement of the law- Amended Petition for Declaratory Judgment suit because it determined the claim asserted on July 22, 2008. The Defendant Taxpayers by TIA/BOK was a potential colorable claim filed an Answer, Cross-Claim, Counter-Claim, exposing the City to a judgment in excess of and a Third-Party-Petition on August 5, 2008. $11,648,294.00, and significant legal fees in Plaintiffs answered Defendant Taxpayers’ defending the lawsuit. claims on August 18, 2008. Defendant Bank of ¶8 On June 26, 2008, (three days after filing Oklahoma answered Plaintiffs’ petition and their answer) the City, TAIT, TIA and BOK Defendant Taxpayers’ claims on August 25, executed a Settlement Agreement which pro- 2008. Prior to the August 10, 2010, hearing on vided the City of Tulsa would pay BOK the Motions for Summary Judgment at issue, $7,100,000.00 to settle the lawsuit. The Settle- the matter was fully litigated with numerous ment Agreement provided, in the event the City trial court and appellate court proceedings. On of Tulsa received a Qui Tam Demand pursuant October 3, 2008, the City filed a Motion for Par- to 62 O.S. 2001, § 372 et. seq., the City of Tulsa tial Summary Adjudication against Taxpayers. would file a petition seeking a judicial declara- This Motion of Partial Summary Adjudication tion that its actions executing the Settlement was granted on February 26, 2009, and a jour- Agreement and transferring the Settlement Pay- nal entry memorializing the Court’s order was ment were authorized under Oklahoma law. settled on June 12, 2009. Additionally, pursuant to the terms of the Settle- ¶12 As part of the order, the Court made ment Agreement, if the trial court determined Findings of Fact and Conclusion of law that the City of Tulsa’s actions were not authorized were specifically incorporated and made part under Oklahoma law, BOK was required to of the trial court’s final order. The trial court refund the entire Settlement Payment and the ruled as to the limited issue presented in the parties would proceed with the lawsuit. Motion for Partial Summary Judgment, the

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2411 effect of 62 O.S. 2001, § 373, and how it per- granted. Taxpayers’ question six is dispositive tained to the facts of the case. The trial court of all issues in this case and reads1: determined the pertinent facts to be that, on 6. Is an unjust enrichment claim actionable June 26, 2008, the City, the Tulsa Airports against a municipality? If so, is compliance Improvement Trust, the Tulsa Industrial Authority and BOK executed a Settlement with GTCA required as a condition prece- Agreement, which provided that the City dent to recovering on such a claim? would pay BOK $7,100,000.00 to settle the law- STANDARD OF REVIEW suit filed in Tulsa Industrial Authority v. Tulsa Airports Improvement Trust, et al. Id. ¶17 This Court has previously identified, in a case similar to the one at Bar, the standard of ¶13 The trial court concluded, pursuant to 62 review from a summary judgment in a Qui O.S. 2001, § 372, the Declaratory Judgment Tam action: Action filed by the City and the Mayor of the City of Tulsa was a proper response to the Tax- Summary relief issues stand before us for payers’ Qui Tam Demand. The trial court fur- de novo examination. All facts and infer- ther found the Taxpayers’ had no right to ences must be viewed in the light most recover a Qui Tam Penalty. On October 8, 2008, favorable to the non-movant. Just as nisi the trial court granted the City’s Motion for prius courts are called upon to do so, so Partial Summary Adjudication. also appellate tribunals bear an affirmative duty to test all evidentiary material ten- ¶14 The City of Tulsa and Kathy Taylor, dered in summary process for its legal suf- Mayor of the City of Tulsa, asked the trial court ficiency to support the relief sought by the to determine, as a matter of law, the settlement movant. Only if the court should conclude agreement was a lawful contract executed by that there is no material fact in dispute and the City, and the settlement payment made the law favors the movant’s claim or liabil- pursuant to the settlement agreement was a ity-defeating defense is the moving party lawful expenditure of public funds. The tax- entitled to summary judgment in its favor. payers asked the trial court to determine, as a matter of law, the Mayor lacked the legal State ex rel. Fent v. State ex rel. Oklahoma Water authority to enter into the Settlement Agree- Resources Board, 2003 OK 29, ¶14, 66 P.3d 432, ment, and the payment of money to the Bank 440. The appellate standard of review of a trial of Oklahoma pursuant to the settlement agree- court’s grant of summary judgment is de novo. ment was an illegal transfer of public funds Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d made pursuant to an unlawful settlement 1051, 1053. On review, this Court will examine agreement and a fraudulent judgment. The the pleadings and evidentiary materials sub- Taxpayers also argued the City did not pursue mitted by the parties to determine if there is a the Taxpayers’ claim in good faith, and their genuine issue of material fact. Id. All inferences Qui Tam status should be recognized. and conclusions to be drawn from the eviden- tiary materials will be viewed in the light most ¶15 In granting the City’s motion for sum- favorable to the nonmoving party. Id. This mary judgment, the trial court found, first the Court will reverse the grant of summary judg- settlement agreement was a lawful settlement of ment when it appears from the evidentiary a colorable claim against the City, and the set- materials that the material facts concerning tlement payment was a lawful expenditure of issues raised in the case are conflicting or, if the funds. Second, the City properly responded to material facts are disputed, reasonable persons the taxpayers’ Qui Tam demands by initiating in the exercise of fair and impartial judgment the declaratory judgment action and present- might reach a different conclusion from those ing, in good faith, the Taxpayers’ challenges to facts. Buck’s Sporting Goods, Inc. of Tulsa v. First the Settlement Agreement and Settlement Pay- Nat.l Bank & Trust Co. of Tulsa, 1994 OK 14, ¶11, ment. The trial court denied the Taxpayers’ 868 P.2d 693, 697-698. In a summary judgment counter-motion for summary judgment and review an appellate court has the same power denied the Taxpayers’ request to reconsider as the trial court to resolve any disputed issues the February 26, 2009, Order granting partial of law. U.S. Mortgage v. Laubach, 2003 OK 67, summary judgment. ¶31, 73 P.3d 887, 900. Questions three and six ¶16 Taxpayers filed this appeal and a motion presented by the Qui Tam litigants form the to retain by the Supreme Court which was basis of our decision in the instant matter.

2412 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 ¶18 In the present matter TAIT is public trust lost as a result of the failure of Great Plains under 60 O.S. 1991, §§ n176-180.3 created by Airlines. Tulsa is not unjustly enriched, by Trust Indenture dated as of March 7, 1969, as retaining benefits involuntarily acquired, which amended, for the use and benefit of the City of law and equity give it absolutely without any Tulsa under the authority of and pursuant to the obligation on its part to make restitution. An provisions of the Act and other applicable stat- unjust enrichment claim is not a viable cause of utes of the State. 60 O.S. 1991, § 179, Trustee- action in the instant matter as the City of Tulsa Agency of State-Liability for acts reads: was not unjustly enriched by a failed business The trustee, or trustees, under such an venture. To find a valid unjust enrichment claim in such a matter would have a chilling instrument or will shall be an agency of the 4 state and the regularly constituted author- effect on economic development. Cities might ity of the beneficiary for the performance not seek economic development in such actions of the functions for which the trust shall if there is a chance of being sued for unjust have been created. No trustee or beneficia- enrichment should the economic enterprise fail ry shall be charged personally with any for reasons outside the municipality’s control. liability whatsoever by reason of any act or The City of Tulsa had no control over the FAA omission committed or suffered in the per- revenue determination. formance of such trust or in the operation ¶20 Even if a cause of action for unjust of the trust property; but any act, liability enrichment existed the current claim is out-of- for any omission or obligation of a trustee time. The limitation period for the underlying or trustees, in the execution of such trust, proposed unjust enrichment claim in the instant or in the operation of the trust property, case is governed by 12 O.S. Supp. 2002 §95 shall extend to the whole of the trust estate, which provides: or so much thereof as may be necessary to discharge such liability or obligation, and Civil actions other than for the recovery of not otherwise. real property can only be brought within the following periods, after the cause of action This statute shows that the trustor, in this mat- shall have accrued, but not afterwards: ter the City of Tulsa, can be responsible for “any act, liability for any omission or obliga- . . . tion of a trustee or trustees, in the execution of 3. Within two (2) years: An action for trespass 2 such trust.” This generally applies to govern- upon real property; an action for taking, mental functions or proprietary functions of detaining, or injuring personal property, the city. Economic development is not such a including actions for the specific recovery of 3 function. personal property; an action for injury to the UNJUST ENRICHMENT rights of another, not arising on contract, and not hereinafter enumerated; an action for ¶19 The City of Tulsa settled the instant relief on the ground of fraud-the cause of claim on the basis of unjust enrichment. This action in such case shall not be deemed to Court has previously held “unjust enrichment have accrued until the discovery of the arises not only where an expenditure by one fraud. person adds to the property of another, but also where the expenditure saves the other In the present matter, Great Plain defaulted on from expense or loss. One is not unjustly its loans in 2004. BOK sued TAIT that same enriched, however, by retaining benefits invol- year. BOK knew it suffered an identifiable loss untarily acquired which law and equity give or injury on the non-recourse loans on July 22, him absolutely without any obligation on his 2004. Any cause of action against the City of part to make restitution.” McBride v. Bridges, Tulsa would have accrued from the date of the 1950 OK 25¶8, 215 P.2d 830,832, 202 Okl. 508. initial default. The City of Tulsa was not added Before a party will be entitled to recover for as a defendant in the lawsuit until March 2008 unjust enrichment, however, “there must be when it was determined that TAIT’s revenues enrichment to another, coupled with a result- could not be accessed without serious FAA ing injustice.” Teel v. Public Service Co. of Okla- penalties. BOK alleged it did not determine it homa, 1985 OK 112, ¶23, 767 P.2d 391, 398 had a plausible cause of action for unjust (superseded by statute on other grounds). Any enrichment until it was determined it could not enrichment to the City of Tulsa had long been collect monies from TAIT. This occurred

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2413 approximately four years after the initial law- ¶22 BOK was, at all times, fully aware this suit was filed. agreement was for the benefit of the City of Tulsa when it made its non-recourse loan. BOK ¶21 This Court has previously held in Samuel could have, and should have, added the City of Roberts Noble Foundation, Inc. v. Vick, 1992 OK Tulsa as a defendant at the initiation of this 140 ¶22, 840 P.2d 619, 624, regarding the statute lawsuit. The mere fact that TAIT being bound at hand that: by FAA regulations was the event that caused . . . The statute is, however, subject in cer- BOK to consider adding the City of Tulsa as a tain instances to a “discovery rule.” The defendant in this action is illusory. The discov- discovery rule provides that the limitations ery rule provides the limitations period does period does not begin to run until the date not begin to run until the date the plaintiff the plaintiff knew or should have known of knew or should have known of the injury. BOK the injury. (Citations omitted) knew of its injury on July 22, 2004, but did not add the City of Tulsa as a defendant until Furthermore, this Court again held in Stephens March of 2008. According to 12 O.S.Supp. 2002, v. General Motors Corp. 1995 OK 114 ¶8, 905 P.2d § 95, BOK had two years to add the City of 797, 799, that: Tulsa as a defendant in “an action for injury to According to 12 O.S. Supp. 1993 §95, an the rights of another, not arising on contract,” action must be commenced within the rel- as the City of Tulsa was not a party to the Loan evant period “after the cause of action shall Agreement that bound the parties in the instant have accrued” or it is barred. The statute of action. Therefore, the settlement agreement in limitations begins to run when the cause of the instant matter should be set aside as void. action accrues. A cause of action accrues TAXPAYERS ARE NOT ENTITLED TO when a litigant could first maintain an QUI TAM PENALTIES action to a successful conclusion. Sher- wood Forest No. 2 Corp. v. City of Nor- ¶23 The taxpayers in the instant case are not man, 632 P.2d 368, 370 (Okl. 1980); Okla- entitled to recover any Qui Tam penalties as homa Brick Corp. v. McCall, 497 P.2d 215, the City of Tulsa did not fail to respond to the 217 (Okl. 1972). Additionally, this court has Qui Tam action in the instant matter as required held “that for the purposes of 12 O.S. 1981 by 62 O.S. Supp. 2008, § 372 which provides: §95 Third, a negligence claim accrues when Every officer of the state and of any county, any injury to the plaintiff, for which an township, city, town or school district, who action could proceed is certain and not shall hereafter order or direct the payment merely speculative. M.B.A. Constr., Inc. v. of any money or transfer of any property Roy J. Hannaford Co., Inc., 818 P.2d 469, belonging to the state or to such county, 470 (Okl. 1991). city, town or school district, in settlement In the present matter, BOK knew it suffered an of any claim or in pursuance of any unau- identifiable loss or injury on July 22, 2004. It did thorized, unlawful or fraudulent contract not pursue any action on this non-recourse loan or agreement made or attempted to be against the City of Tulsa until March of 2008, made, for the state or any such county, city, almost four years after it knew of its identifiable town or school district, by any officer loss or injury. The Tulsa Airport Improvement thereof, known to such officer to be fraudu- Trust is an Oklahoma Public Trust and is an lent or void, and every person, having agency of the State of Oklahoma and a regularly notice of the facts, with whom such unau- constituted agency of its beneficiary, the City of thorized, unlawful or fraudulent contract Tulsa, Oklahoma. The land on which the mort- shall have been made, or to whom, or for gage was given (Air Force Plant 3) was quit- whose benefit such money shall be paid or claimed by the City of Tulsa to TIA. The Support such transfer of property shall be made, Agreement in the instant case required TAIT, not shall be jointly and severally liable in dam- the City of Tulsa, to purchase the property in age to all innocent person in any manner case of the triggering event. According to the injured thereby, and shall be furthermore support agreement, the loan was to be made to jointly and severally liable to the state, “promote the general public health, safety, and county, city, town or school district affect- welfare of the City, including the economic ben- ed, for triple the amount of all such sums of efits of expanding the tax base and providing money so paid, and triple the value of employment opportunities . . . “ property so transferred, as a penalty, to be

2414 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 recovered at the suit of the proper officers such claims are determined to be frivolous of the state or such county, city town or shall be jointly and severally liable for all school district, or of any resident taxpayer reasonable attorney fees and court costs thereof, pursuant to Section 373 of this title; incurred by any public officer or officers or provided, however, no action for personal any other person alleged in such demand liability shall lie against any such officer for to have paid out, transferred, or received a transaction approved in good-faith reli- any money or property belonging to the ance on advice of legal counsel for the pub- state, or such county, township, city , town lic entity authorizing the transaction or or school district in pursuance of any which has been submitted to a court of alleged unauthorized, unlawful, fraudu- competent jurisdiction for determination of lent, or void claim paid or contract or con- legality. veyance made, or attempted to be made, by such officer or officers. Furthermore 62 O.S. Supp. 2000, §373 provides: ¶24 In the present matter the City acted Upon the refusal, failure, or neglect of the properly in protecting the rights of the Qui proper officers of the state or of any county, Tam petitioners by filing the underlying declar- township, city, town, or school district, atory action. The officers of the City of Tulsa after written demand signed, verified and were acting under the guidance of legal coun- served upon them by ten resident taxpay- sel and properly submitted the settlement ers of the state or such county, township, agreement to the District Court of Tulsa Coun- city, town, or school district, to institute or ty for judicial determination of the legality of diligently prosecute proper proceedings at the settlement. This Court has recently law or in equity for the recovery of any addressed this same issue in Tulsa Industrial money or property belonging to the state, Authority v. City of Tulsa 2011 OK 57, ¶14, ___ or such county, township, city, town or P.3d ____ where we held: school district, paid out or transferred by any officer thereof in pursuance of any In summary, a qui tam taxpayer’s § 373 right unauthorized, unlawful, fraudulent, or to intervene is based upon a public body’s void contract made, or attempted to be failure to seek recovery of the public funds made, by any of its officers for the state or issue as specified in § 373. A public body’s any such county, township, city, town, or right to prevent intervention of the qui tam school district, or for the penalty provided taxpayer in its declaratory judgment pro- in the preceding section, any resident tax- ceeding is based upon its diligent prosecu- payer of the state or such county, township, tion therein of the qui tam taxpayer’s claim city, town, or school district affected by of illegality. . . such payment or transfer after serving the No request had been made as to possible frivo- notice aforesaid and after giving security lous claims and therefore we decline to address for cost, may in the name of the State of any possible issue as to attorney fees under 62 Oklahoma as plaintiff, institute and main- O.S. Supp. 2000, § 373. tain any proper action which the proper officers of the State, county, township, city, ¶25 In the case at Bar, we find that the settle- town, or school district might institute and ment of the unjust enrichment claim was maintain for the recovery of such property, untimely and unviable; however, the City of or for said penalty; and such municipality Tulsa properly responded to the Qui Tam shall in such event be made defendant, and action and therefore the Qui Tam applicants one-half (½) the amount of the money and cannot recover any penalty. The Qui Tam tax- one-half (½) the value of the property payers were included as parties in the instant recovered in any action maintained at the matter and were allowed to brief and argue expense of a resident taxpayer under this their standpoint to the district court. The City section, shall be paid to such resident tax- of Tulsa at no time prevented the Qui Tam par- payer as a reward. If all claims stated by ties from presenting their case, but rather the resident taxpayers in the written added them as party-defendants to the declara- demand are determined in a court of com- tory action. petent jurisdiction to be frivolous, the resi- dent taxpayers who signed such demand and who are parties to the lawsuit in which

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2415 CONCLUSION 3. Board of County Commissioners v. Warram, 1955 OK 198, ¶45 285 OK 1034, 1041, held that debt created by a public trust shall never become an obligation of the beneficiary. ¶26 In the present matter, the settlement was 4. For a review of Oklahoma law concerning economic development not based on a contract, but rather under the using public funds see, Burkardt v. City of Enid, 1989 OK 45, 771 P.2d 608; equitable theory of unjust enrichment to the State ex rel. Brown v. City of Warr Acres, 1997 OK 117, 946 P.2d 1140. City of Tulsa. The City of Tulsa, at all times, REIF, J.: dissenting, with whom Kauger and presented the settlement issues to the District Gurich, JJ., join. Court of Tulsa County. The Judgments Against Municipalities Act does not apply. Therefore, ¶1 This case concerns a claim by the Bank of the sinking funds requirement also does not Oklahoma against the City of Tulsa that arose apply. However, since we find the unjust out of the Bank’s financing of Great Plains air- enrichment claim to be unviable and the Stat- line service at the City’s municipal airport. The controversy over this claim is whether the City ute of Limitations would bar the unjust enrich- of Tulsa had a sufficient stake in the financing ment claim against the City, we remand the of Great Plains that would justify the City’s instant matter back to the District Court of settlement of the Bank’s claim. In my opinion, Tulsa County to direct the repayment of the the undisputed material facts surrounding the settlement funds from BOK back to the City of financing arrangement disclose that the City Tulsa. As this finding disposes of the instant had such a stake and the trial court properly matter, we decline to address the other issues granted summary judgment approving the presented by the Qui Tam applicants. settlement of Bank’s claim. RULING OF TRIAL COURT REVERSED ¶2 Although not a party to the financing con- AND CAUSE REMANDED tracts, the City did transfer title to real property ¶27 CONCUR: TAYLOR, C.J., WATT, WIN- at the airport to the Tulsa Industrial Authority CHESTER, EDMONDSON, COMBS, JJ. for the purpose of securing a loan from the Bank to finance Great Plains’ service. As a con- ¶28 CONCUR IN PART; DISSENT IN tingency for repayment, the Tulsa Airport PART: COLBERT, V.C.J., KAUGER (JOINS Improvement Trust agreed to purchase the col- REIF, J.), GURICH (JOINS REIF, J.), JJ. lateral real property and Great Plains’ loan ¶29 DISSENT: REIF (BY SEPARATE WRIT- from the Bank in the event of default by Great ING - WITH WHOM KAUGER AND GUR- Plains. Great Plains eventually defaulted. The ICH, JJ., JOIN), J. Airport Improvement Trust did not fulfill its purchase agreement because the Federal Avia- 1. The unaddressed questions are as follows: tion Administration advised the Trust it could 1. Must payment of a money judgment entered against a munic- not use “airport revenue” for such a purpose. ipality, upon any theory, utilizing the sinking fund, comply with the Judgments Against Municipalities Act (JAMA) Okla. Stat. tit. Litigation then ensued with the Industrial 62, §§361-363? Authority and Bank of Oklahoma aligned 2. May a city circumvent the sinking fund statutory requirements against the Airport Improvement Trust. The that money judgments against the city be paid only from “sink- ing funds” (Okla. Stat. tit. 62, §§365.5 and 435) by “investing” in Bank would later conclude that the City had a money judgment against itself with city operating (non- been “unjustly enriched” by the Bank’s financ- sinking) funds pursuant to Okla. Stat. tit. 62, §348.1? 3. If municipalities can circumvent sinking fund statutes through ing assistance to Great Plains and the failure of Okla. Stat. tit. 62, §348.1, and pay on asserted claims that are the Airport Improvement Trust to purchase the merely “plausible” and not those determined to be factually and collateral property and outstanding loan. legally owed, and the transfer not tested by compliance with the Governmental Tort Claims Act (GTCA) or JAMA, are citizens Regardless of the merit of the unjust enrich- protected against the unlawful taxation disallowed by the ment aspect of the Bank’s claim, the Bank Supreme Court in Wood v. Phillips, 1923 OK 668, 219 P. 646? nonetheless held a mortgage on the property 4. Where the Bylaws of a municipality do not specifically address a mayor’s express authority to enter into settlement agreements, the City provided to the Industrial Authority does a strong mayoral form of government under Okla. Stat. tit. 11, as collateral for the Bank’s financial commit- §§ 11-101, 106 and 108 require city council approval in order to bind a municipality to a settlement agreement and judgment? ment to the Great Plains financing plan. 5. Does Article X, §§ 14, 15, and 26 of the Oklahoma Constitution require a debt to be, in fact, owed by a municipality before an ¶3 The City of Tulsa had a clear and substan- agreement to pay the claim is required or, as in the present case, tial equitable interest in the collateral property need a claimant only present a “plausible” claim? to protect, despite having transferred legal title 7. Does the City’s action violate binding precedence and render illusory the qui tam statutes? to the Industrial Authority. Preference to 2. McKosy v. Town of Talihina 1977 OK CIV APP 27, ¶¶13-14, 581 P.2d redeem the property from the Bank’s mort- 482, 485-486, applied this Statute to the proprietary functions of a city. In the present matter economic development is not a proprietary func- gage, as well as the release of the mortgage tion of the City of Tulsa and is inapplicable in the instant matter. itself, constituted valuable consideration for

2416 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 the City’s settlement of Bank’s claim. Such and are raised for the first time on appeal. As redemption and release returned the property to the remaining issue, we find that summary as an asset for further development of the air- judgment was proper. The pending appellate port by the City and the Industrial Authority. motions are denied. Bringing complex litigation to an end was fur- AFFIRMED. ther consideration to support the settlement of Bank’s claim. The decision to pursue such ends Bradley E. Davenport, GUNGOLL, JACKSON, in the public interest is a matter that lies pecu- COLLINS, BOX & DEVOLL, P.C., and Okla- liarly within the governing judgment of the homa City, OK, for Appellee Douglas L. Jack- elected officials of the City of Tulsa. The reme- son, Receiver. dy for taxpayers who disagree with the exer- cise of such judgment by their elected officials Amanda Cornmesser, Melanie Hall and Gerri lies at the ballot box, not in the Courts. Kavanaugh, OKLAHOMA DEPARTMENT OF SECURITIES, Oklahoma City, OK, for Appellee ¶5 I would affirm the summary judgment Oklahoma Department of Securities. approving the settlement. Robert N. Sheets, PHILLIPS MURRAH, P.C., 2011 OK 82 Oklahoma City, OK, for Appellants. OKLAHOMA DEPARTMENT OF EDMONDSON, J. SECURITIES ex rel. IRVING L. FAUGHT, ADMINISTRATOR and DOUGLAS L. ¶1 This is a second appeal resulting from a JACKSON, IN HIS CAPACITY AS THE Ponzi scheme perpetrated by Marsha Schubert, COURT APPOINTED RECEIVER FOR THE operating as Schubert and Associates (Schubert). INVESTORS AND CREDITORS OF The facts are set forth in the first appeal, Dept. SCHUBERT & ASSOC. AND FOR THE Of Securities ex rel. Faught v. Blair, 2010 OK 16, ASSETS OF MARSHA SCHUBERT, 231 P.3d 645 (Blair). The defendants herein, Plaintiffs/Appellees, v. MARVIN LEE Marvin and Pamela Wilcox, were among the WILCOX and PAMELA JEAN WILCOX, appellants in Blair appealing from summary Defendants/Appellants. judgments obtained by the plaintiffs on the theory of unjust enrichment against 158 “relief” No. 109,111. October 11, 2011 defendants who had received more money APPEAL FROM THE DISTRICT COURT OF than they invested in the Ponzi scheme.1 Plain- OKLAHOMA COUNTY, OKLAHOMA, HON. tiffs had sought to recover all amounts the PATRICIA G. PARRISH, DISTRICT JUDGE relief defendants had received from the scheme in excess of their original investment. ¶0 On remand after this Court’s opinion in Dept. of Securities ex rel. Faught v. Blair, 2010 OK ¶2 In Blair, the relief defendants had not 16, 231 P.3d 645, the trial court granted partial been charged with violating the Oklahoma summary judgment in favor of the plaintiffs on Securities Act of 2004, 72 O.S. Supp. 2003 §1- the issue of defendants’ liability, finding that 101, et seq., and the preliminary question was there was no question of material fact that the whether the Department could proceed against defendants were not innocent investors enti- non-violators of the Act. We held that the Act tled to retain the reasonable dividend provided provided authority for the Oklahoma Depart- in Blair due to their active participation in the ment of Securities to bring an action against Ponzi check-kiting scheme. The amount of innocent investors in a Ponzi scheme when defendants’ net profits was in dispute and was they received a profit from the Ponzi scheme set for non-jury trial. After further discovery, that was an unreasonable return on their invest- the plaintiffs moved for summary judgment on ment. We held that the court-appointed receiv- the basis that there was no longer any dispute er could bring a proceeding for equitable relief as to the amount of defendants’ net profits. The against innocent investors for recovery of funds trial court entered judgment in favor of the that qualify as an unjust enrichment obtained plaintiffs and against the defendants in the by the investors from the Ponzi scheme. We amount of $509,505.00, plus prejudgment and held that an Oklahoma District Court has sub- post-judgment interest, and ordered that ject matter jurisdiction to adjudicate competing amount to be paid to the receiver. Defendants equitable claims of ownership to funds that raise four issues in their petition in error, three were part of an investment scheme which vio- of which were not presented to the trial court lated the securities laws. We also held that an

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2417 innocent investor in a Ponzi scheme may use ners with Schubert & Associates. Department equitable setoffs in defense against an unjust asserted, based on deposition testimony of enrichment claim brought by the plaintiffs. Marvin Wilcox, that it was undisputed that Wilcox never saw any records relating to a day ¶3 On remand, the Department of Securities trading account and never received any state- and the Receiver (referred to herein as Depart- ments from such an account. Marvin Wilcox ment) moved for summary judgment against was in the banking industry his entire adult the defendants, Marvin and Pam Wilcox (Wil- life, last serving as Vice President of NBC Bank coxes), on grounds that the Wilcoxes were not in Kingfisher. Wilcox gave Schubert physical entitled to the equitable relief provided for control of multiple checks from his bank innocent investors in Blair because they were accounts that were blank except for his signa- partners with Schubert and were actively ture. The Wilcoxes received monthly bank involved in the check-kiting scheme operated 2 account statements for their personal checking by Schubert that supported her Ponzi scheme. accounts, but claimed that they did not review Department argued that more than or reconcile them. $150,000,000.00 ran though the Wilcoxes’ bank accounts, that they saw no statements from a ¶7 In response, the Wilcoxes disputed that day trading account and that they acted with they were partners with Schubert. They stated reckless disregard for the legitimacy of that they did not prepare their tax returns and Schubert’s scheme. Department listed eighteen did not know why they were shown as part- (18) undisputed material facts. ners with Schubert on their 2002 and 2003 tax returns. They claimed that they were never ¶4 Department asserts that it was undisputed partners with Schubert and they never received that Schubert’s Ponzi scheme was supported by any K-1 partnership forms from the partner- a long-running check exchange or check-kiting ship. The Wilcoxes admitted that they did not scheme, primarily between the accounts of three receive statements or anything that specifically individuals, including the defendant Marvin referred to a specific day trading account, but Wilcox, and the accounts of Schubert. The con- stated that they did receive written notes from sistent movement of funds between these Schubert that allegedly contained account bal- accounts created a “float” that Schubert used to ances from day trades. They argued that it was pay purported investment returns. In exchange a fact question whether or not they were inno- for a check drawn on an account of Marvin Wil- cent investors. The Wilcoxes submitted their cox, Schubert would write a check from one of own identical affidavits as evidence in support her bank accounts, usually for a greater dollar of their objections. They stated that they were amount, payable to Marvin Wilcox. not aware of the existence of a Ponzi scheme in ¶5 Between December 12, 2002, and October their dealings with Schubert. 6, 2004, more than 650 transactions took place ¶8 The Wilcoxes also disputed Department’s between Schubert and the Wilcoxes involving calculations of the amount of their net profits the check exchange. The Wilcoxes transferred from the commingled funds. The Wilcoxes $77,739,746.00 to Schubert and Schubert trans- admitted that they received $77,583,050.00 ferred back to the Wilcoxes $78,249,251.56. The from Schubert, and claimed that their net Wilcoxes received $509,505.00 in profits paid to profit from the commingled funds was them by Schubert from Schubert’s commingled $133,945.00, not $509,505.00. They argued that funds. In support of these undisputed facts, whether their $133,945.00 in net profits was Department attached the affidavit of Dan “unreasonable” under the Blair standard pre- Clarke, a certified fraud examiner and supervi- sented a question of fact. The Wilcoxes did not sory investigator for Department, based on his dispute the remainder of plaintiffs’ undisputed analysis of deposits and disbursements from facts regarding the Ponzi and check-kiting the various Schubert accounts. scheme.3 ¶6 In support of the motion, Department ¶9 Department refuted the Wilcoxes’ denial offered evidence the Wilcoxes were in partner- of their partnership with Schubert by attaching ship with Schubert. They attached Schedule E the two K-1 “Partner’s Share of Income” forms forms (Supplemental Income and Loss from for 2002 and 2003 produced by the Wilcoxes Partnerships) from the Wilcoxes’ IRS 1040 during discovery and attached to their signed returns for tax years 2002 and 2003, in which IRS tax returns for those years. Department they reported to the IRS that they were part- also submitted a photocopy of a letter from

2418 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Marvin Wilcox to AXA (where Wilcox had an which they did not provide reasonably equiva- account and for whom Schubert had worked) lent value. The Wilcoxes asserted no claim for dated July 7, 2004, in which Wilcox stated that relief and did not assert any affirmative defens- he was partners with Schubert and had entered es. They maintained only that their net profit the partnership at his own risk, knowing that was $133,945.00, not $509,505.00. the money he invested with Schubert in an options account was not guaranteed in any ¶13 On November 18, 2010, Department form. As to the receipt by Wilcox of any records filed a second motion for summary judgment, pertaining to a day trading account, Depart- asserting that further documentation received ment asserted, based on Wilcox’s deposition from the Wilcoxes demonstrated that no issue testimony, that the “written notes” that Wilcox of material fact remained as to the amount the claimed to have received were nothing more Wilcoxes netted from Schubert’s Ponzi scheme. than “sticky notes” on which Schubert would Department’s evidence reflected that the net write down an account balance when request- profit to the Wilcoxes was at least $625,518.00, ed. Department attached the accounting, pre- instead of the $509,505.00 originally calculated, pared by a CPA firm, on which their calcula- and that five checks, totaling $285,000.00, that tion of $509,505.00 in net profits was based, the Wilcoxes had used as a setoff in their calcu- along with photocopies of the Wilcoxes’ bank lation of net profits were never part of the com- statements reflecting check exchanges with mingled funds used by Schubert. The Wilcoxes Schubert on an almost daily basis. did not respond to the motion. ¶10 At the hearing on the plaintiffs’ motion ¶14 On December 17, 2010, the trial court for summary judgment, the Wilcoxes’ attorney entered judgment in favor of Department and advised the trial judge that they disputed the against the Wilcoxes in the amount of amount of net profit and whether the return on $509,505.00, plus prejudgment and post- investment was reasonable, arguing that these judgment interest and costs. The Wilcoxes were were fact questions not proper for summary ordered to disgorge and/or repay the sums of judgment.4 The Wilcoxes made no further argu- money to the Receiver. ment regarding their status as “innocent inves- ¶15 The Wilcoxes appealed, raising four tors” nor did they seek to offer additional evi- issues: dence on that issue. ¶11 The trial judge granted partial summary 1) that the trial court exceeded the mandate judgment in favor of the plaintiffs on the issue of this Court in Oklahoma Department of of liability, finding that there was no genuine Securities v. Blair, 2010 OK 16; issue of material fact pertaining to the liability (2) that the trial court should have taken of the Wilcoxes on Department’s unjust enrich- into account that the Department of Securi- ment claim. The trial judge found that by vir- ties was judicially estopped from seeking tue of their participation in the Schubert check- judgment against the Wilcoxes concerning kiting scheme, the Wilcoxes were not innocent whether or not they were innocent inves- investors and the standard for recovery from tors, as that issue had been litigated. The investors in Ponzi schemes set forth in Blair did Department of Securities has conceded all not apply. The trial court found that the Wil- 158 investors were innocent investors and coxes were unjustly enriched by all monies had not violated securities laws of the State netted from their association with Schubert’s of Oklahoma; Ponzi and check-kiting schemes. Because there was a genuine issue of material fact pertaining (3) that the decision of the trial court to the amount of money that the Wilcoxes net- exceeds the plaintiffs’ theory of the case set ted from the Ponzi scheme, the trial judge left forth in the pretrial order, which shows the the amount to be determined by jury or non- grounds of recovery to be unjust enrich- jury trial. ment which was the same grounds on which they previously sought judgment ¶12 A pretrial conference order setting the against the Wilcoxes. matter for non-jury trial was filed October 22, 2010. Department set out that it was seeking, (4) that whether the Wilcoxes were not on the basis of unjust enrichment, to recover innocent investors should have been sub- fictitious profits in the amount of $509,505.00, ject to a full trial, as there are material plus interest, that Schubert paid to Wilcoxes for issues of fact as to whether the Wilcoxes

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2419 were anything other than innocent inves- publication by Supreme Court). When evi- tors in Marsha Schubert’s Ponzi scheme. dence is presented showing the existence of uncontroverted material facts, the burden shifts We granted the appellants’ motion to retain the to the opposing party to identify those material appeal. facts he or she alleges remain in dispute and ¶16 The standard of review for summary provide supportive evidentiary materials justi- judgment is de novo. Our review is based on the fying trial on the issue. Reeds v. Walker, 2006 OK actual record presented to the trial court and 43 ¶32, 157 P.3d 100, 116. the issues actually presented to the trial court. ¶19 In attempting to show the existence of a Culpepper v. Loyd, 1978 OK 90 ¶6, 583 P.2d 500, question that must be tried, the party may not 501. An appellate court reviewing a summary rely on bald contentions that facts exist to defeat judgment cannot take notice of any material that the motion. Roberson v. Waltner, 2005 OK CIV was not properly before the trial court at the APP 15¶8, 108 P.3d 567, 569. We said, in Runyon time of its rendition. Frey v. Independence Fire & v. Reid, 1973 OK 25 ¶14, 510 P.2d 943, 951: Casualty Co., 1985 OK 25 ¶6, 698 P.2d 17, 20. “When on the basis of established facts the ¶17 The first three issues in the appellants’ plaintiff is entitled to summary judgment petition in error were not raised in the trial as a matter of law, the defendant contend- court, and will not be heard for the first time by ing and arguing that there is a genuine this Court on appeal.5 The Wilcoxes never argued issue of material fact cannot and will not before the trial court that the Department was make it so,” citing Aktiengesellschaft Der judicially estopped from adjudicating whether Harlander, etc. v. Lawrence Walker Cotton, 288 or not they were innocent investors entitled to P.2d 691 (N.M. 1955). equitable relief, and they never argued that to do so would exceeded the mandate of Blair. In ¶20 Department offered admissible evidence the trial court, the Wilcoxes argued that whether that the Wilcoxes were not “innocent inves- they were innocent investors presented a ques- tors” or “innocent victims” of the Ponzi scheme, tion of fact that should not be determined on but were in fact partners with Schubert whose summary judgment. Likewise, they argued bank accounts were actively used in Schubert’s before the trial court that a question of fact check-kiting scheme. The Wilcoxes did not existed as to whether their net profit calculation deny the existence of or their active participa- was unreasonable under Blair’s standard of tion in Schubert’s check-kiting scheme. The recovery. The Wilcoxes never raised an issue in only evidence submitted by the Wilcoxes in the trial court regarding the plaintiffs’ theory of denial of the partnership was their virtually recovery based on unjust enrichment. Where identical self-serving affidavits.6 Department not properly presented in the trial proceedings refuted Wilcoxes’ denial of partnership by sub- or in motion for new trial, issues not properly mitting the Schedule K-1 partnership returns presented to the trial court cannot be considered they received from Schubert and a letter in by this Court on appeal. Steiger v. City National which Marvin Wilcox admitted the partnership Bank of Tulsa, 1967 OK 41, 424 P.2d 69, 72. with Schubert. The Wilcoxes never sought to offer additional evidence in the trial court on ¶18 We turn to appellants’ remaining issue, the issue of their status as innocent investors. that their status as innocent or non-innocent investors should have been subject to a full ¶21 It stands uncontroverted that the Wilcoxes’ trial because there are material issues of fact. bank accounts were used in furtherance of Our de novo review of the record presented to Schubert’s check-kiting scheme to create the the trial court does not support appellants’ “float” used by Schubert to pay purported assertion that there are material facts remain- investment returns. The Wilcoxes did not dis- ing in dispute regarding their investor status. pute Department’s evidence of the numerous All material facts set forth in the statement of transactions between their accounts, nor the the moving party which are supported by more than seventy-seven million dollars in admissible evidence are deemed admitted for deposits to Schubert from the Wilcoxes. They the purpose of summary judgment unless spe- admitted receiving $77,583.050.00 over the cifically controverted by the statement of the course of their dealings with Schubert. The adverse party which is supported by admissi- Wilcoxes produced no evidence of the exis- ble evidence. Spirgis v. Circle K Stores, Inc., 1987 tence of a legitimate day trading account. The OK CIV APP 45, 743 P.2d 682 (approved for evidence presented by Department placed the

2420 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 burden on the Wilcoxes to come forward with party opposing summary judgment must file a concise written state- ment of the material facts as to which a genuine issue exists and the evidence to demonstrate the existence of a reasons for denying the motion. In the statement, the adverse party question as to whether they were innocent shall set forth and number each specific material fact which is claimed to be in controversy and reference shall be made to the pages and investors entitled to the equitable relief pro- paragraphs or lines of the evidentiary materials. vided by Blair. Their bald assertion that they 4. Counsel for Wilcoxes on appeal is different from their counsel in the trial court. were not aware of the existence of a Ponzi 5. Errors that could have been raised in the trial court may not be scheme is insufficient. The evidentiary material raised for the first time in the appellate court. Arkansas Louisiana Gas provided by the Wilcoxes failed to raise a dis- Co. v. Cable, 1978 OK 133, 585 P.2d 1113, 1116, citing 12 O.S. § 992. 6. Marvin Wilcox’s affidavit provides, in pertinent part: pute on this issue and did not meet their bur- 1. I, Marvin Wilcox, have personal knowledge of the facts and den to overcome the motion for summary matters set forth below. 2. Pam Wilcox is my spouse, and we filed joint tax returns for the judgment. years 2002 and 2003. 3. I am unaware as to why Schubert and Associates was listed in ¶22 Rule 13(e), Rules for the District Courts, our 2002 and 2003 tax returns as a partnership, and I have never provides that if the court finds that there is no received any K-1’s from Schubert and Associates. 4. My spouse and I received $77,583.050.00 over the course of our substantial controversy as to the material facts dealings with Schubert and Associates, for a net profit of and that one of the parties is entitled to judg- $133,945.00. 5. Throughout my dealings with Schubert and Associates, I was ment as a matter of law, the court shall render never aware of the existence of a Ponzi scheme. judgment for that party. In this case, the trial 6. I do not recall whether I contracted with Schubert for a par- court determined that there was no dispute as ticular interest rate. to the material fact that the Wilcoxes were not “innocent” investors entitled to the equitable treatment provided to innocent investors in Blair. In Blair, we held that the district court had jurisdiction to determine equitable claims to ownership of funds that were part of the Ponzi scheme. The trial court in this case deter- mined that it would be inequitable to allow the Wilcoxes to keep any of their profits from the Ponzi scheme. Having reviewed the eviden- tiary materials presented to the trial court, we find that there is no dispute of material fact justifying trial on this issue. Earn 7 MCLE credits (1 Ethics) ¶23 As a final matter, the parties have filed Approved by the Oklahoma Bar motions in the appeal that have not been ruled Association on. Appellants filed a motion for additional Review of the Medical Record for briefing on the issues of judicial estoppel and Merit & Causation exceeding the mandate of Blair. Department filed a motion to dismiss the appeal on the NOVEMBER 11, 2011 FROM 9 TO 5 grounds of waiver because the Wilcoxes failed LOCATION: 1437 South Boulder Avenue to raise or present their issues to the trial court. Tulsa, Oklahoma The Wilcoxes’ response did not address waiver, Presented by: Legal Medical Resource Group but instead argued the merits of the issues. & Tulsa Law Center Department then filed a motion to amend the record on appeal to incorporate three docu- SEMINAR AGENDA: Ethical Considerations — ments that they deemed necessary to rebut How to systematically review a medical record — The admission process and documents generated — The new issues raised in the response. Based on our steps involved in executing a doctor’s order and areas holding in this case, we deny the motion for of potential liability - Identifying the applicable stan- additional briefing, the motion to supplement dards of care and determining compliance — Where the record and the motion to dismiss. to locate the documentation needed to support your ¶24 ALL JUSTICES CONCUR case — Litigation trends & statistics — Case studies & discussion 1. The Wilcoxes were appellants in Supreme Court No. 104,004. COST IS $185. Contact us for additional informa- 2. Department raised other grounds for summary judgment which tion at: (918) 812-4337 we need not consider here due to the trial court’s ruling on the issue of Wilcoxes conduct vis a vis Schubert. Legal Medical Resource Group LLC 8310 South 67th East 3. The Wilcoxes disputed paragraphs 5, 13, 14 and 16, and part of Avenue Tulsa, Oklahoma 74133 paragraph 12 of plaintiffs’ eighteen undisputed facts. Rule 13(b), Rules [email protected] for the District Courts, 12 O.S. 2001, Ch. 2, App., provides that any

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2421 Thursday, Nov. 3, 2011 • Hyatt Regency Tulsa, 100 E. Second St. • Tulsa, OK 74103 Celebrate the 25th Anniversary of the OBA FLS

The OBA Family Law Section is a Presumptive Oklahoma MCLE Provider. This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 5 hours of mandatory CLE Credit, including 0 hours Ethics Credit. Attendance is FREE for all OBA FLS members. PRE-REGISTRATION WITH THE OBA FLS IS NOT REQUIRED for Thursday. Non-OBA FLS members may attend by paying the $25 dues at the door. OBA FLS members who attend the Thursday meeting & CLE will receive a ticket to attend the Thursday night OBA Annual Meeting event Red, White & Blue Reception with free food and the entertainment by the Capitol Steps. Date/Time Event/Topic Location/Speaker Wednesday, 11/02/11 OBA/CLE Family Law Track (Registration for OBA Hyatt Regency, 100 E. 2nd St, Tulsa Multi-Track CLE Required to Attend) 9 a.m. – 4:50 p.m. OBA CLE presentation (Register & pay OBA to Hyatt Regency attend the 4 different CLE tracks) 10 p.m. – midnight OBA FLS Hospitality Suite Open Room #1234 (Regent’s Suite) 7 – 11 p.m. President’s Boots & Bandanas Reception & YLD Hyatt Regency Tombstone Casino Night (Must register for Annual Meeting through OBA to attend) Thursday, 11/03/11 OBA FLS Annual Meeting (Open to all OBA FLS Promenade D 2nd floor OBA FLS ANNUAL Members; No Registration required) MEETING/ CLE DAY Non-Members can pay $25.00 at the door to attend CLE – 5 hours credit 8:15 – 8:45 a.m. Breakfast and Sign In Promenade D 2nd floor 8:45 – 9:15 a.m.  Chair Comments & 25 year Celebration Kimberly Hays, Chair  FLS Annual Business Meeting (Election)  Committee Reports & Door Prizes 9:15 – 10:35 a.m. Recent Developments in Family Law Professor Robert G. Spector 10:35 – 10:45 a.m. Break 10:45 – 11:35 a.m. Keynote Address: “The Impact of Divorce on Keynote Speaker Children: What we think we know, what we Sol R. Rappaport, Ph.D. know, and what we need to do” 11:35 – 11:45 a.m. Grand Prize Drawing 1; OBF Presentation Kimberly Hays and Alan Souter 11:45 a.m. – 2:15 p.m. Lunch OBA Annual Luncheon or your own 2:15 – 3:25 p.m. Hidden Law: Unpublished Family Law Cases Professor Robert G. Spector 3:25 – 3:35 p.m. Break 3:35 – 4:25 p.m. Keynote Address: “Psychological Testing and Keynote Speaker Cross Examination in Custody Evaluations” Sol R. Rappaport, Ph.D.

4:25 – 4:45 p.m.  Award Presentations for Outstanding Law Kimberly Hays and David Tracy Student, Outstanding Family Law Judge, Outstanding GAL Award, Outstanding Mediator and Outstanding Family Law Attorney;  Professor Spector recognition  Practice Manual Update Phil Tucker 4:45 – 5 p.m. Grand Prize Drawing 2, Door Prizes, & 2011 Kimberly Hays Attendance Appreciation Prize Drawing 5 p.m. Adjourn 6 – 7:30 p.m.  Red, White & Blue Reception Hyatt Regency Hotel 8 – 9:45 p.m.  Capitol Steps Performance  Attendance included in Annual Meeting Registration or to OBA FLS Members attending Thursday OBA FLS Meeting & CLE

9:30 p.m. - midnight OBA FLS Hospitality Suite Open Room #1234 (Regent’s Suite) Friday, 11/04/11 9 a.m. OBA General Assembly Hyatt Regency Hotel The presentation by Sol R. Rappaport, Ph.D. includes two areas: • Does divorce really impact children, and if so, how? This presentation will address the impact of divorce on children using current research to dispel common myths. The presentation provides a thorough review of the research on the impact of divorce on children which can guide attorneys in understanding how to best help their clients prevent their children from developing significant problems following divorce. The research on the impact of parenting plans on children will also be addressed. • This presentation will prepare attorneys for how to cross examine psychologists on a variety of psychological tests in custody evaluations, including the MMPI-2, MCMI-III, TAT, Rorschach, and various other tests. Detailed information will be provided regarding the most common mistakes evaluators make and how to successfully challenge them in court. The increased use of computer generated reports by psychologists will also be addressed.

2422 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Annual Meeting

Attention All Servicemembers 5. The name of the artist and the piece must be & Veterans securely fastened to each piece, whether by sticker on the back or bottom or otherwise. The OBA wants to honor you on Thursday at a Veter- 6. The artists receiving the Artist of the Year Award ans Appreciation Recep- and the best military-theme art will be requested to tion, which begins at 2:30 attend the Annual Meeting luncheon on Thursday to p.m. Sgt. Matt Eversmann, receive his/her award. real-life hero portrayed in Questions? Email [email protected]. the film Black Hawk Down, will speak at 3 p.m. All Past Annual Meeting OBA members are invited Problems Fixed to attend. Those being hon- ored will receive a small Parking — Garage would fill up and no valet gift as a token of apprecia- parking was available. Not this year! Hotel promises tion for their service. Spe- unlimited valet parking for $15 per day. Other cial thanks to sponsor McAfee & Taft. options: 1) self park with no hotel stay — $8 per day, 2) self park with hotel stay — free, 3) overflow park- Art Contest Rules ing at 100 West 1st St. (Boulder & 1st) only a half block west of the hotel - $5 per day. Military-themed art is encouraged in all categories but is not a separate category. Registration forms are Nowhere to go for lunch – If you’re not going due Oct. 17; two forms are needed – the main to luncheons on Wednesday and Thursday, eat in the Annual Meeting registration form and the Art Contest hotel’s Daily Grill — or new this year you can catch entry form. Entry fee is included with Annual Meeting an OBA shuttle making a continuous loop around to registration. Printed forms are in this bar journal. Blue Dome Diner, El Guapo’s Cantina, McNellie’s Public House, Joe Mamma’s, Back Alley Blues and 1. Artists may submit entries in each category; how- BBQ and Dilly Deli - and back to the hotel. ever, each artist is limited to two entries per catego- ry. Annual Meeting App 2. Each piece must be the original work of the per- Coming Soon son entering it. Yes, that’s right — it’s a first in the association’s 3. All pieces entered must have been completed 107-year history. In development now is a mobile app within five years of the date of registration (except for that can be downloaded to your iPhone, BlackBerry, military-themed art). Android or iPad. The goal is to launch it two weeks before the meeting. Watch for more details. 4. Pieces that have received an award in any prior OBA Art Contest are not eligible for resubmission.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2423 Sponsors

Commander in Chief Three Star CoreVault Beale Professional Services Annual Meeting Jute Bags GableGotwals President’s Reception President’s Breakfast & a CLE Breakout McAfee & Taft OBA Litigation Section Veterans Appreciation Reception Bench and Bar Breakfast & OBA Energy and Natural Resources Law Section Trial College Hotel/Restaurant Shuttle OBA Family Law Section Four Star Annual Meeting Mobile App OBA Law Office Management and OBA General Practice – Solo and Technology Section Going Geek: Tech Fair Small Firm Section President’s Reception Band, Red Dirt *Sponsorship opportunities are still available. Rangers Contact OBA Executive Director John Morris Wil- liams ([email protected]) at (405) 416-7014, (800) 522-8065.

2424 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 BAR NEWS

2012 OBA Board of Governors Vacancies Nominating Petition Deadline was: 5 p.m. Friday, Sept. 2, 2011 OFFICERS Summary of Nominations Rules President-Elect Not less than 60 days prior to the Annual Meeting, Current: Cathy M. Christensen, Oklahoma City 25 or more voting members of the OBA within the Mrs. Christensen automatically becomes Supreme Court Judicial District from which the OBA president Jan. 1, 2012 member of the Board of Governors is to be elected (One-year term: 2012) that year, shall file with the Executive Director, a Nominee: James T. Stuart, Shawnee signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Vice President Governors for and from such Judicial District, or Current: Reta M. Strubhar, Piedmont one or more County Bar Associations within the (One-year term: 2012) Judicial District may file a nominating resolution Nominee: Peggy Stockwell, Norman nominating such a candidate. BOARD OF GOVERNORS Not less than 60 days prior to the Annual Meeting, 50 or more voting members of the OBA Supreme Court Judicial District One from any or all Judicial Districts shall file with the Current: Charles W. Chesnut, Miami Executive Director, a signed petition nominating a Craig, Grant, Kay, Nowata, Osage, Ottawa, candidate to the office of Member-At-Large on the Pawnee, Rogers and Washington counties Board of Governors, or three or more County Bars (Three-year term: 2012-2014) may file appropriate resolutions nominating a can- Nominee: Linda S. Thomas, Bartlesville didate for this office. Supreme Court Judicial District Six Not less than 60 days before the opening of the Current: Martha Rupp Carter, Tulsa Annual Meeting, 50 or more voting members of Tulsa County the Association may file with the Executive Direc- (Three-year term: 2012-2014) tor a signed petition nominating a candidate for Nominee: Kimberly K. Hays, Tulsa the office of President-Elect or Vice President or Supreme Court Judicial District Seven three or more County Bar Associations may file Current: Lou Ann Moudy, Henryetta appropriate resolutions nominating a candidate Adair, Cherokee, Creek, Delaware, Mayes, for the office. Muskogee, Okmulgee and Wagoner counties If no one has filed for one of the vacancies, (Three-year term: 2011-2014) nominations to any of the above offices shall be Nominee: Bret A. Smith, Muskogee received from the House of Delegates on a petition Gary J. Dean, Pryor signed by not less than 30 delegates certified to Member-At-Large and in attendance at the session at which the elec- Current: Steven Dobbs, Oklahoma City tion is held. (Three-year term: 2011-2014) See Article II and Article III of OBA Bylaws for Nominee: Nancy Parrott, Oklahoma City complete information regarding offices, positions, nominations and election procedure. Vacant positions will be filled at the OBA Annual Meeting Nov. 2-4. Terms of the present OBA offi- cers and governors listed will terminate Dec. 31, 2011. Nomination and resolution forms can be found at www.okbar.org.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2425 2011 House of Delegates Delegate certification should be sent to OBA Executive Director John Morris Williams in order for names to appear in print in the bar journal and to be included in the House of Delegates agenda book.

COUNTY DELEGATE ALTERNATE Adair ...... Jeff Payton...... Barrett Harris Alfalfa ...... Marcus Jungman...... Kyle Hadwiger Atoka ...... Preston Harbuck...... Pethi Hays-Gabbard Beaver ...... Todd Trippet...... Robert J. Kee Beckham...... Avery “Chip” Eeds Blaine ...... Daniel G. Webber...... F. Douglas Shirley Bryan ...... Melissa Middleton...... Matt Mickle Caddo Canadian ...... Suzanne P. Heggy...... Leslie Taylor Nathan Richter...... Morris Galloway Kevin Cunningham...... Jack Dawson Michael Denton Jr...... W. Mark Hixson Carter ...... Dennis Morris...... Thomas Baldwin Mike Mordy...... (Ret.) Judge Thomas Walker Cherokee ...... N. Cheryl Hamby...... Elizabeth Odell Choctaw ...... J. Frank Wolf III...... Gary Brownsworth Cimarron ...... Judge Ronald L. Kincannon...... Stanley Ed Manske Cleveland ...... Michael Johnson...... Ann Harcourt Don Pope...... David Poarch Alissa Hutter...... Tyson Stanek Peggy Stockwell...... Cindee Pichot Richard Stevens...... Amy Pepper Holly Iker...... Ben Odom Judge Lori Walkley...... Buddy Pendarvis Henry Herbst...... Debra Loeffelholz Judge Stephen Bonner...... Rebekah Taylor Blake Virgin...... David Swank Dave Stockwell...... Clint Pratt Micheal Salem...... Cheryl Farnsworth Gary Rife Sandee Coogan Jan Meadows Craig Sutter Golda Long Beth Stanley Coal ...... Kara Bacon ...... Trae Gray

2426 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Comanche...... Mark Stoneman...... Ana Basora-Walker Eric Davis...... Dietmar Caudle Robin Rochelle...... Greg Beben Cotton ...... Judge Michael C. Flanagan...... Kathleen Flanagan Craig ...... Leonard M. Logan IV...... Kent Ryals Creek ...... Charles D. Watson...... Laura Farris Judge Richard Woolery...... J. V. Frazier Custer...... Anthony Seth Adams...... Perry Luther “Luke” Adams Delaware ...... Rogers Hughes...... Dodi Manley Dewey ...... Judge Rick Bozarth ...... Gary Combs Ellis ...... Saundra F. Lapsley...... Laurie E. Hays Garfield ...... Douglas L. Jackson ...... Michael C. Bigheart Tim DeClerck ...... Robert R. Faulk Judge Tom L. Newby ...... Kaleb Hennigh Garvin ...... Daniel Sprouse ...... John A. Blake Grady ...... Ryland Rivas Judge Richard VanDyck Grant...... Judge Jack D. Hammontree Jr...... Steven A. Young Greer...... Judge Danny R. Deaver...... Eric Yarborough Harmon ...... David L. Cummins...... Judge W. Mike Warren Harper ...... Judge G. Wayne Olmstead...... Jim Harkins Haskell ...... Thomas H. Conklin III Hughes ...... Trisha D. Smith...... Harold E. Heath Jackson Jefferson ...... William W. Eakin...... Carrie Hixon Johnston ...... Dustin P. Rowe ...... Laura F. Corbin Kay ...... Christopher W. Landes...... Guy Clark Shawna N. Taylor...... Richard Johnson Kingfisher ...... Matthew Oppel ...... Edd Pritchett Kiowa ...... Thomas W. Talley Latimer LeFlore ...... Ranada Adams...... Dru Waren Lincoln ...... Patrick A. Thompson...... Charles Thompson Logan ...... James Bennett...... Jeff Hirzel Love ...... Kenneth L. Delashaw Jr...... Richard A. Cochran Jr. Major Marshall ...... D. Michael Haggerty II...... Jeff Landgraf Mayes ...... Gary J. Dean...... Larry J. Paden McClain ...... John Mantooth ...... James Dee Graves McCurtain ...... Judge Michael D. DeBerry ...... Jerry L. McCombs McIntosh ...... Steve Barnes...... Deborah A. Reheard Murray ...... Phil S. Hurst...... John H. Scaggs Muskogee ...... Chad Locke ...... Eric Jones Roy D. Tucker ...... Carol Cowan Justin Stout ...... Lowell Howe Noble Nowata Okfuskee ...... Judge David N. Martin...... Maxey Reilly Oklahoma...... Laura H. McConnell-Corbyn ...... LeAnne Burnett Judge Patricia G. Parrish...... Richard Rose John Heatly ...... Amy S. Fischer Judge Bryan C. Dixon...... J. Kelly Work Judge Vicki L. Robertson...... Collin Walker Judge Barbara Swinton...... Jeff Todd

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2427 David B. Donchin...... Janna Dunnagan Gau Judy Hamilton Morse...... Jeffrey Tate Judge Lisa Hammond...... Maurice Woods Reggie N. Whitten...... Daniel Couch G. Calvin Sharpe...... Lance Schneiter Daniel G. Webber Jr...... Cherish Ralls Michael Mullins...... Dawn M. Rahme Don Holladay ...... Gary S. Chilton Judge Lynne McGuire ...... Michael Rubenstein Nancy S. Parrott ...... David Kisner D. Lynn Babb ...... Susan Shields Amy J. Pierce ...... Michael Brewer Leslie Lynch ...... Phillip Whaley Bradley Gungoll ...... Jim Webb Judge Timothy D. DeGiusti...... Kieran D. Maye Mack K. Martin...... Judge E. Bay Mitchell III Judge Geary L. Walke...... Charles Alden Judge Glenn Jones...... David Ogle Howard K. Berry ...... W. Todd Blasdel Larry M. Spears...... Angela Ailles Bahm James Kirk ...... M. Courtney Briggs Robert McCampbell...... Judge Page Morgan Benjamin Butts ...... Timothy Rhodes John S. Oldfield...... Evan Gatewood Okmulgee ...... Luke Gaither...... Lou Ann Moudy Osage Ottawa ...... Charles W. Chesnut ...... John M. Weedn Pawnee...... Lawrence A. Martin...... Billy Joe Ellington Payne ...... David Bryan...... Catherine R. Seagraves Susan Worthington...... Martin High Jill Tontz...... Niles Stuck Pittsburg ...... Ellen Quinton ...... Tim Mills Mindy Beare ...... John Thomas Pontotoc ...... Ash Mayfield Christine Pappas Pottawatomie ...... James T. Stuart...... George Wright Joe Vorndran...... Mat Thomas Pushmataha ...... James T. Branam ...... Charlie Michelle Wolfe Roger Mills ...... E. Pat VerSteeg ...... Thomas B. Goodwin Rogers ...... Justin Greer...... Sean McConnell Noah Sears...... Melinda Wantland Seminole ...... R. Victor Kennemer III...... William D. Huser Sequoyah Stephens Texas ...... Douglas D. Dale ...... Cory B. Hicks Tillman Tulsa ...... Robert S. Farris ...... Robert Redemann Judge Charles R. Hogshead ...... Fred H. DeMier Leonard I. Pataki...... Georgenia (Brown) Van Tuyl Renee DeMoss ...... Gale Allison William G. LaSorsa ...... Michael Scott Ashworth Paul D. Brunton ...... Kenneth G. Miles C. Michael Zacharias...... Kimberly K. Moore Waite Kenneth L. Brune ...... David M. Thornton Jr.

2428 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Bruce A. McKenna ...... James C. Milton Tony W. Haynie ...... Amber Peckio Garrett Paul B. Naylor ...... Shelton Benedict Vivian C. Hale ...... Jeremy K. Ward Jack L. Brown ...... William “Bill” Sanders Catherine M. Cullem ...... Michael “Mike” Esmond Molly A. Aspan ...... Nathan Harley Mayenschein Judge Millie Otey ...... Ken Williams Deirdre Dexter ...... Julie A. Evans Martha Rupp Carter...... E. Zach Smith James R. “Jim” Gotwals ...... Trisha Archer Steven K. Balman...... Moura A. J. Robertson D. Faith Orlowski ...... Tamera A. Childers John R. Woodard III...... Melissa F. Cornell Robert B. Sartin ...... Keith A. Jones Phil Frazier ...... Vijay Madduri Ronald Main Gerald L. Hilsher Mark Barcus Kimberly K. Hays Wagoner ...... Richard L. Gray Jr. Washington...... Remona K. Colson...... Jim Elias P. Scott Buhlinger...... Linda Thomas Washita ...... Judge Christopher S. Kelly ...... Skye D. Shephard-Wood Woods ...... Jeremy Bays...... Jesse Kline Woodward ...... Bryce L. Hodgden ...... Justin P. Eilers

OKLAHOMA JUDICIAL CONFERENCE Judge P. Thomas Thornbrugh...... Judge M. John Kane IV Judge Mickey J. Hadwiger...... Judge Mark Moore

NOTICE OF MEETING FOR CREDENTIALS COMMITTEE The Credentials Committee of the Oklahoma Bar Association will meet Thursday, Nov. 3, 2011, from 9 B 9:30 a.m. in Room 1 of Directors Row at the Hyatt Regency, 100 East Second Street, Tulsa, Oklahoma in conjunction with the 107th Annual Meeting. The committee members are: Chairperson Luke Gaither, Henryetta; Leisa M. Gebetsberger, Tulsa; Reta M. Chaney Strubhar, Piedmont and Linda S. Thomas, Bartlesville. NOTICE OF MEETING FOR RULES & BYLAWS COMMITTEE The Rules & Bylaws Committee of the Oklahoma Bar Association will meet Thursday, Nov. 3, 2011, from 10 B 10:30 a.m. in Room 1 of Directors Row at the Hyatt Regency, 100 East Sec- ond Street, Tulsa, Oklahoma in conjunction with the 107th Annual Meeting. The committee members are: Chairperson Robert S. “Bob” Farris, Tulsa; Jody R. Nathan, Tulsa; Roy D. Tucker, Muskogee; T. Luke Abel, Oklahoma City and Alan Souter, Tulsa. NOTICE OF MEETING FOR RESOLUTIONS COMMITTEE The Resolutions Committee of the Oklahoma Bar Association will meet Thursday, Nov. 3, 2011, from 10:45 B 11:45 a.m. in Room 1 of Directors Row at the Hyatt Regency, 100 East Second Street, Tulsa, Oklahoma in conjunction with the 107th Annual Meeting. The committee members are: Chairperson Peggy Stockwell, Norman; Joe Vorndran, Shawnee; D. Faith Orlowski, Tulsa; Molly A. Aspan, Tulsa; Glenn A. Devoll, Enid and James T. Stuart, Shawnee.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2429 Program of Events Hyatt Regency Hotel, Tulsa F Nov. 2-4, 2011 All events will be held at the Hyatt Regency Hotel unless otherwise specified.

Tuesday, Nov. 1 OBA/CLE Seminar...... 9 a.m. – 5 p.m. See seminar program for speakers and complete agenda OBA Registration...... 4 – 7 p.m. Lobby Lounge Charm School Promenade A Recent Developments Promenade B Family Law Promenade C Oklahoma Fellows of the Criminal Law Promenade D American Bar Foundation...... 7 – 9 p.m. Art of War Oklahoma Room Tulsa Country Club 701 N. Union Ave. OU College of Law Alumni Reception and Luncheon...... 11:15 a.m. – 1:30 p.m. Wednesday, Nov. 2 Tulsa Ballroom South

Outstanding Senior Law School Student OBA Registration...... 8 a.m. – 5 p.m. Award Promenade D Foyer Barbara McHugh Moschovidis, University of Oklahoma College of Law OBA Hospitality...... 8 a.m. – 5 p.m. Lobby Lounge Criminal Law Section Luncheon...... Noon – 1:30 p.m. OBA Art Show Registration...... 8 – 11 a.m. Tulsa Ballroom Central Director’s Row 1 Speaker: Board of Bar Examiners...... 8:30 a.m. – Noon Executive Room Mike Turpen, Riggs, Abney, Neal, Oklahoma Fellows of the American Turpen, Orbison & Lewis Bar Foundation...... 7:30 – 9 a.m. Tulsa Ballroom North

OBA/CLE Seminar Registration...... 8:30 – 9 a.m.

2430 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 TU College of Law Entertainment: Red Dirt Rangers Alumni Reception SPONSOR: OBA General Practice Solo-Small Firm and Luncheon...... Noon – 1:30 p.m. Section Tulsa Ballroom North Celebrate the Annual Meeting Tulsa style with Outstanding Senior Law School Student President Deborah Reheard. Each attendee Award receives two drink tickets. Russell C. Ramzel, University of Tulsa College of Law Tombstone Casino Night ...... 8 – 11 p.m. Tulsa Ballroom OCU School of Law (Free for everyone Alumni Reception with meeting registration) and Luncheon...... Noon – 1:30 p.m. Summit Club Prize drawings at break and end of the event 15 W. 6th St. SPONSOR: OBA Young Lawyers Division Outstanding Senior Law School Student Award Past Presidents’ Dinner...... 8 – 10 p.m. Paige Masters, Oklahoma Room Oklahoma City University School of Law

OBA Board of Governors Meeting...... 2 – 4 p.m. Thursday, Nov. 3 Diplomat Room

CLE Speaker Breakfast...... 7:30 – 9 a.m. Friends of Bill W...... 5 – 6 p.m. Directors Row 3 Directors Row 2

Bench and Bar Breakfast...... 7:30 – 9 a.m. OBF Fellows Reception...... 5:30 – 7 P.M. Tulsa Ballroom South Jones, Gotcher & Bogan 15 E. 5th St. - 38th Floor Featuring: First Place Tower Transportation provided

OBA Health Law Section...... 6 – 8 p.m. Promenade B Walt Coleman, NFL Referee BOG Alumni Reception...... 5:30 – 6:30 p.m. Chairman’s Suite

OBA YLD Board of Directors...... 6 – 7 p.m. Suite 304 TOPIC: Turning Your Boos into Cheers: How Effective Are You? President’s Boots & Bandanas SPONSOR: OBA Litigation Section Reception...... 7 – 11 p.m. Tulsa Ballroom (Free for everyone OBA Hospitality...... 8 a.m. – 5 p.m. with meeting registration) Lobby Lounge SPONSOR: Beale Professional Services

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2431 OBA Registration...... 8 a.m. – 5 p.m. OBA Rules and Promenade D Foyer By-Laws Committee...... 10 – 10:30 a.m. Directors Row 1 Annual Insurance, Tort & Workers’ Compensation OBA Diversity Committee...... 10 a.m. – Noon Update ...... 8:30 a.m. – 4 p.m. Tulsa Ballroom North Promenade C (Program offered by the Oklahoma Association for Justice) MCLE Commission...... 10:30 – 11:45 a.m. Directors Row 3 OBA Family Law Section...... 8:45 a.m. – 5 p.m. Promenade D OBA Resolutions Committee...... 10:45 – 11:45 a.m. Directors Row 1 Credentials Committee...... 9 – 9:30 a.m. Directors Row 1 OBA Annual Luncheon For Members, Spouses OBA Rules of Professional And Guests...... Noon – 1:45 p.m. Conduct Committee...... 9 – 11 a.m. Tulsa Ballroom South Directors Row 4 ($35 with meeting registration) OBA/CLE Plenary Session...... 9 – 11:45 a.m. Promenade A Earl Sneed Award Noel Tucker, Edmond and Phil Tucker, Edmond Speaker: Award of Judicial Excellence Judge Millie Otey, Tulsa Sgt. Matt Eversmann, Liberty Bell Award American military hero Oklahoma County Law Library, Oklahoma City involved in the events that inspired the movie Joe Stamper Distinguished Service Award Black Hawk Down William R. “Bill” Grimm, Tulsa Alma Wilson Award Robert N. Sheets, Oklahoma City Neil E. Bogan Professionalism Award TOPIC: Stepping on the Battlefield: Do the Rules Judge William J. Holloway Jr., Oklahoma City Change? John E. Shipp Award for Ethics MODERATOR: Robert Don Gifford, assistant U.S. Brooke Smith Murphy, Oklahoma City attorney in the Western District of Oklahoma PANEL:  Sgt. Eversmann Featuring: Vicki Behenna, assistant U.S. attorney in the Western District of Oklahoma, mother of Andrew H. Card Jr., Army Ranger Lt. Michael Behenna former White House chief of staff under President David E. Coombs (tentative), Law Office George W. Bush of David E. Coombs, attorney for Private Bradley Manning Michelle Lindo McCluer, executive director of the National Institute of Military Justice, TOPIC: A Conversation with Andrew Card: Washington, D.C. Eyewitness to History

2432 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Sgt. Matt Eversmann OBA Technology Committee...... 4 – 5:30 p.m. Book Signing...... 1:45 – 2:30 p.m. Directors Row 1 (Books available for purchase) Tulsa Ballroom South Foyer Taxation Law Section...... 4:30 – 6:30 p.m. Promenade B OBF Executive Committee...... 2 – 3 p.m. Directors Row 1 Friends of Bill W...... 5 – 6 p.m. Directors Row 2 Law Office Mgmt. and Tech Section...... 2 – 4 p.m. Directors Row 5 OBA YLD Speed Networking...... 6 – 7 p.m. Directors Row 5 Real Property Law Section...... 2 – 4 p.m. Promenade A OBA YLD Fellows Reception...... 7 – 8 p.m. Promenade A County Law Day Chairperson Reception...... 2 – 2:30 p.m. Directors Row 4 Red, White & Blue Reception...... 7 – 8 p.m. Tulsa Ballroom South Foyer

Law Day Committee...... 2:30 – 4 p.m. Directors Row 4 The Capitol Steps...... 8 – 9:45 p.m. Tulsa Ballroom South OBA Bankruptcy and Reorganization Section...... 2 – 4 p.m. Tulsa Ballroom North

Oklahoma Criminal Defense Lawyers Association...... 2 – 4 p.m. Promenade B

OBA Leadership Academy...... 2 – 6 p.m. Diplomat Room Friday, Nov. 4 Trial College...... 2:30 – 6 p.m. Oklahoma Room President’s Breakfast...... 8 – 9 a.m. Promenade A SPONSOR: OBA Litigation Section ($25 with meeting registration)

Veterans Appreciation Reception...... 2:30 – 4 p.m. Featuring: Martin Luther King Jr. Unity Choir, Tulsa Ballroom Central McAlester SPONSOR: McAfee & Taft SPONSOR: GableGotwals

Oklahoma Bar Foundation American College of Board of Trustees...... 3 – 5 p.m. Trust and Estate Counsel...... 8 – 9:30 a.m. Executive Room Executive Room

OBA Board of Editors...... 3:30 – 5 p.m. OBA Registration...... 8 a.m. – Noon Directors Row 3 Promenade D Foyer

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2433 OBA Hospitality...... 8 a.m. – Noon Lobby Lounge

Trial College...... 8 a.m. – 5 p.m. Deborah Reheard, Oklahoma Room President SPONSOR: OBA Litigation Section Oklahoma Bar Association

Oklahoma Bar Association General Assembly...... 9 – 10 a.m. Promenade C OBA CLE Going Geek: Tech Fair...... 9 a.m. – 2:50 p.m. Trailblazer Award Promenade B Donald W. Davis Sr., Oklahoma City SPONSOR: OBA Law Office Management and Outstanding County Bar Association Award Technology Section Canadian County Bar Association Washington County Bar Association Oklahoma Bar Association Hicks Epton Law Day Award House of Delegates...... 10 a.m. – Noon Cherokee County Bar Association Promenade C Golden Gavel Award Election of Officers & Members of OBA Civil Procedure and Evidence the Board of Governors Code Committee Approval of Title Examination Standards Outstanding Young Lawyer Award Resolutions Molly Aspan, Tulsa Outstanding Service to the Public Award Philip F. Horning, Oklahoma City Cathy Christensen, Award for Outstanding Pro Bono Service President-Elect Stanley Evans, Oklahoma City Presiding Maurice Merrill Golden Quill Award Jim Drummond, Norman Robert G. Spector, Norman General Assembly Speakers:

Tellers Committee...... 10:30 a.m. – Noon Directors Row 1 Chief Justice Steven W. Taylor, OBA Estate Planning, Oklahoma Supreme Probate and Trust Court Section Seminar...... 11:30 a.m. – 3 p.m. Promenade A

OBA Professionalism Committee...... 11:30 a.m. – 1:30 p.m. Presiding Judge Diplomat Room Arlene Johnson, Oklahoma Court of Criminal Appeals

2434 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 OBA/CLE

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2435 OBA/CLE presents OBA TRIAL COLLEGE Cosponsored with the OBA Litigation Section November 3-4, 2011 Hyatt Regency Hotel, Tulsa — Oklahoma Room Thursday, November 3 2:30 p.m. Welcome/Introductions/Overview Renée DeMoss, GableGotwals, Tulsa 3 – 4 p.m. Pretrial Matters Judge Mark Moore, Associate District Judge, Blaine County, Watonga Charles “Buddy” Neal, Steidley & Neal, McAlester 4 – 6 p.m. Jury Selection/Voir Dire Plaintiff Attorney: Guy Clark, Northcutt Clark Gardner Horn & Braun, Ponca City Defendant Attorney: Karen Long, Rosenstein Fist & Ringold, Tulsa Judge Daman H. Cantrell, Tulsa County District Judge, Tulsa Judge Dana Kuehn, Tulsa County District Judge, Tulsa Friday, November 4 8 - 9:30 a.m. Opening Statements Plaintiff Attorney: Mike Atkinson, Atkinson Haskins, Tulsa Defendant Attorney: John Kenney, McAfee Taft, Oklahoma City Judge Timothy DeGiusti, U.S. District Court for the Western District of Oklahoma, Oklahoma City 9:30 a.m. - Direct Examination 12 p.m. Plaintiff Attorney: Amy Kempfert, Best & Sharp, Tulsa Defendant Attorney: Oliver Howard, GableGotwals, Tulsa Judge Gregory K. Frizzell, U.S. District Court for the Northern District of Oklahoma, Tulsa 12 – 1 p.m. Lunch (included in registration) 1 - 3:30 p.m. Cross Examination Plaintiff Attorney: Judy Hamilton Morse, Crowe & Dunlevy, Oklahoma City Defendant Attorney: Larry Ottaway, Foliart Huff Ottaway & Bottom PC, Oklahoma City Justice Noma D. Gurich, Oklahoma Supreme Court, Oklahoma City 3:30 - 5 p.m. Closing Plaintiff Attorney: Laura McConnell-Corbyn, Hartzog, Conger, Cason & Neville LLP, Oklahoma City Defendant Attorney: Mack Martin, Mack Martin Law Offices, Oklahoma City Patricia Parrish, Presiding District Judge, Oklahoma County, Oklahoma City To Register: Use the Annual Meeting registration form. Annual Meeting registration is required and available online at http://am.okbar.org.

2436 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2437 2438 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 2011 OBA ATTORNEY ART SHOW REGISTRATION FORM

Pottery Watercolor The following categories of art will be judged: Stained Photography glass H Oil Painting H Acrylic H Watercolor Deadline: Oct. 17, 2011 H Black and White Drawing H Return form with Annual Meeting registration fee to: Color Drawing H Black and White Oklahoma Bar Association • P.O. Box 53036 • Oklahoma City, OK 73152 Attn: Mark Photograph H Color Photograph Name ______H Three Dimensional OBA Number ______(sculptures, woodwork, etc.) *E-mail ______) H Craft (tile work, stained (*Must be submitted to receive additional information and forms glass, needlepoint, etc.) Address ______H Mixed Media (screenprint, enhanced City ______State ______Zip ______photographs, etc.) Phone ______Fax ______Military themed artwork is encouraged I will enter _____ pieces of art, each of which are described below. in all categories Questions? Email [email protected] For each entry, complete in detail all information requested below. If needed, please attach an additional sheet.

Name of Piece Size/Weight Date Category Created

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2439 Mark Your Calendar and Register Today Annual Criminal Law Section Luncheon Hyatt Regency Hotel, Tulsa, Oklahoma November 2, 2011

ichael C. Turpen will speak on professional advocacy and civility at the Criminal Law Section Luncheon during the MOBA Annual Meeting. Mr. Turpen served as Muskogee County District Attorney from 1977 to 1982, and was elected Attor- ney General for the state of Oklahoma in 1982. Since 1987, Mr. Tur- pen has been a partner in the law firm of Riggs, Abney, Neal, Tur- pen, Orbison & Lewis in Oklahoma City. In May 2009, he was appointed as a State Regent by Governor Henry, to serve a nine- year term ending in May 2018. Mr. Turpen is a nationally sought after public speaker, having keynoted conferences of the National Association of Attorneys General, the Fourth Federal Judicial Cir- cuit, and the National and Juvenile Judges’ Association. The luncheon will also recognize the recipients of the Professional Advocacy Awards, unique in that the nominations must be from the opposing side of litigation. The luncheon will feature an Italian Market buffet, with options of Steak Scallopini and Chicken Marsala, as well as a variety of fresh salads and sauteed fresh vegetables. The luncheon is open to all OBA members. Registrations are requested to be submitted no later than October 26, 2011.

Registration Form

First Name (Print) ______Last Name (Print)______

Address ______

City ______State ______Zip ______

E-mail ______

Phone ( _____) ______Fax ( _____) ______

OBA Number: ______

Registration (Check appropriate boxes): [ ] $15 — Criminal Law Section Member attending the luncheon [ ] $20 per guest if accompanied by a member. Guest Name: ______[ ] $30 — Nonmember (includes section membership for 2011) $______Total Enclosed Payment (Select One): Check ___ Visa ___ Master Card ___ Card # ______Exp. Date ______

Signature required: ______Remit form and payment to Tracy Sanders, Membership Coordinator OBA, P.O. Box 53036, Oklahoma City, OK 73152 or fax to (405) 416-7001

2440 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 NOTICE

In an effort to protect personal identifier Every party to an action shall omit, or where information in court documents, the Oklahoma inclusion is necessary shall include, only the Supreme Court is considering the attached following personal identifier information in all proposed order creating Rule 31 of the Rules of pleadings, papers, exhibits or other documents, the District Courts of Oklahoma. The court has whether filed electronically or in paper, unless studied this issue for several years and the otherwise ordered or as otherwise provided by courts will continue to gather personal identi- law (i.e. 22 O.S. 977): fier information for the business needs of the 1. Social Security Numbers: An individu- court. al’s social security number shall include The court invites your written comments on only the last four digits. this matter on or before Nov. 4, 2011. The court 2. Taxpayer Identification Numbers: A tax- will consider your input before it considers a payer identification number shall include final order. only the last four digits of that number. Thank you for taking the time to comment on 3. Names of Minor Children: Only the ini- this important public policy topic. Your written tials of a minor child shall be used. In the comments may be sent to: alternative, the filer may refer to the child Michael D. Evans, Administrative in the manner that shields the identity of Director of the Courts the minor in the context of the proceeding 2100 N. Lincoln Boulevard, Ste. 3 (i.e., by symbol [Child A, Child B]: as Doe Oklahoma City, OK 73105 1, Doe2; or by the child’s status in the liti- Or gation [/Witness, Victim, Ward, Beneficia- ry]). [email protected] 4. Dates of Birth: An individual’s date of Sincerely, birth shall include only the year. Michael D. Evans 5. Financial Account Numbers: Financial Administrative Director of the Courts account records shall include only the last four digits of these numbers. 2011 OK 6. Home addresses: A home address shall IN THE SUPREME COURT OF THE STATE include only the city and state. OF OKLAHOMA 7. Driver’s License: An individual’s driv- In re Amendment to 12 O.S. Ch. 2, App., er’s license shall include only the last four Rules for the District Courts of Oklahoma, digits of that number. Creating New Rule 31. 8. Other Personal Identification Numbers: SCAD NO. 2011- Any other personal identification number FOR OFFICIAL PUBLICATION shall include only the last four digits of that number. ¶0 Order Creating new Rule 31, Rules for the District Courts of Oklahoma. B. Responsibility of Filer ¶1 The Court hereby creates Rule 31, 12 O.S. The responsibility for following the guide- Ch. 2, App., Rules for the Districts Courts lines set forth above rests solely with coun- of Oklahoma. sel, the parties, or any other filer. The Clerk of the Court will not review documents for ¶2 Rules of the District Courts of Oklahoma, compliance with this rule, seal documents or Rule 31, is created to read as follows. redact documents. If a filer includes personal identifier information and other sensitive Rule 31, Personal Identifier Information on information in any document filed with the Court Documents courts, electronically or otherwise, the docu- A. Personal Identifier Information ment becomes a public record as filed.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2441 C. Filing of Documents under Seal A. Any party may request of the court that Biscone & Biscone any pleading, paper, exhibit or other docu- ment be sealed and a redacted version filed Attorneys for the public record. B. Any party may, with leave of court, file a document under seal containing personal identification information. 1. The party seeking to file a document with personal identification information shall file a motion to file the document under seal. 2. If the motion is granted, the filer shall submit the original and one We will gladly accept your referrals copy of the unredacted document to for oklahoma workers’ compensation the Clerk in a clearly identified enve- and social security disability cases. lope. The document shall contain the notation “ Document filed under seal Association/ referral fees paid by Order dated______”. 1-800-426-4563 3. The assigned judge shall require the filer to file a redacted copy for the pub- 405-232-6490 lic record. The redacted pleading or 105 N. Hudson, Suite 100 other paper shall be clearly identified Hightower Building as a redacted version. The redacted Oklahoma City, OK 73102 pleading shall be a public record as filed. ¶3 Rules for the District Courts of the State of Oklahoma, Rule 31, shall be created by this order and shall take effect . This Order shall be published three times in the Oklahoma Bar Journal. ¶4 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS DAY OF 2011. /s/ Steven W. Taylor CHIEF JUSTICE

2442 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Gungoll, Jackson, Collins, Gungoll, Jackson, Collins, Box & Devoll, P.C. Box & Devoll, P.C. Presents Presents Jordan K. Russell Matthew S. Panach

After growing up on a farm in Braman, Oklahoma, Matt Hailing from Freedom, Oklahoma, Jordan graduated continued his interest in agriculture at Oklahoma State summa cum laude from Oklahoma State University with University, majoring in Agricultural Communications a Bachelor of Science in 2006. He continued to excel at the with a minor in Agricultural Economics. He graduated in University of Oklahoma, where he received his Juris 2005, summa cum laude and was awarded the 2005 OSU Doctorate with Honors in 2010. Russell went on to serve Outstanding Seniors Award. Continuing on to the as a legislative assistant for the office of U.S. University of Arkansas, Matt graduated with his J.D. in 2008, summa cum laude and was awarded the W.J. Arnold Congressman Frank D. Lucas in Washington, D.C. Memorial Award for class rank, and won both the Ben J. Russell practices in the areas of civil litigation, bank- Altheimer Moot Court Competition and Best Brief Award. ing law, debtor and creditor law, agricultural and natural Now, as part of the Gungoll Jackson team, Matt prac- resources law, and wind energy law. tices in the areas of agricultural law, oil and gas, civil liti- When he is out of the office, Jordan enjoys attending gation and labor and employment law. football games, spending time on the family farm, and In his spare time, Matt enjoys spending time with his being involved in his hometown community activities. wife, Macey, their friends and family and watching and attending sporting events. Jordan can be reached at the firm's Oklahoma City office. Matt can be reached at the firm's Oklahoma City office. Gungoll, Jackson, Collins, Box and Devoll, P.C. Gungoll, Jackson, Collins, Box and Devoll, P.C. Attorneys and Counselors at Law Attorneys and Counselors at Law 1-800-725-0436 1-800-725-0436 Enid Office Enid Office 323 West Broadway, Enid, OK 73701 • 580-234-0436 323 West Broadway, Enid, OK 73701 • 580-234-0436 Oklahoma City Office Oklahoma City Office 100 N. Broadway, 3030 Chase Tower, Oklahoma City, OK 73102 • 405-272-4710 100 N. Broadway, 3030 Chase Tower, Oklahoma City, OK 73102 • 405-272-4710

www.GungollJackson.com www.GungollJackson.com

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2443

 
 

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during the   
 
Oklahoma Bar Association Annual Meeting 0-1(24/(310/
 
  
  

November 2, 2011 11:30 a.m. The Summit 15 West 6th Street, 30th floor, Tulsa, Oklahoma To RSVP call (405) 208-5381 or e-mail [email protected]

Shuttle service to and from The Summit will be provided.

Hon. Niles Jackson ’75 Justice Marian P. Opala Award for Lifetime Achievement in Law

Cathy Christensen ’86 Beau Patterson ’01 Distinguished Law Alumna Outstanding Young Alumnus

Hall Estill Paige Masters ’12 Law Firm Mark of Distinction Outstanding Law Graduate

OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW law.okcu.edu

2444 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 RULES OF THE OBA HOUSE OF DELEGATES: a. All non-delegates wishing to address the House shall make written request to the Custodian of Records, to be approved by the House. b. In regard to nominations, there will be one nominating speech not to exceed four minutes, one seconding speech not to exceed three minutes, and the candidate may speak not to exceed three minutes. c. Regarding proposals submitted to the House, five minutes will be allowed for explana- tion of a proposal, and speakers for and against the proposal shall alternate with a time limit of three minutes each, with a four minute closing by a speaker on behalf of the proposal. Provided, the total time allowed for all speakers on each side of a proposal shall be limited to fifteen minutes. d. All speakers, whether a delegate or not, shall sign a register maintained by the Custodian of Records. e. Any amendment to any proposal submitted to the House shall be in writing, signed by the author, and submitted to the Custodian of Records. The total time allowed for speakers on an amendment shall be limited to ten minutes for each side. Any new proposal to be submitted to the House which has not been considered by the Resolutions Committee shall be in writing, signed by the author, co-signed by at least twenty other members of the House of Delegates, and submitted to the Custodian of Records. Time limitations on new proposals shall be the same as are provided for resolutions submitted by the Resolutions Committee.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2445 OBA Needs Volunteers for 2012 Committees eamwork makes things happen and that’s very true for all our OBA committees. If you’re not yet a committee member, I urge you to get involved. There’s no better way to network among Tcolleagues — and isn’t that an investment in your career worth the time out of the office? The variety of committees makes it easy to find something you are interested in. Pick one and help me make a difference. I need you on my team. If you work in or around Tulsa, videoconferencing from there with the bar center in Oklahoma City saves travel time. We want your participation. It’s easy to sign up online at www.okbar.org. You can also complete this form and either fax or mail it to the OBA. I need to start working on committee appointments soon, so please respond by Dec. 1, 2011.

Cathy Christensen, President-Elect –––––––––––––––––––––––––––––––– Standing Committees –––––––––––––––––––––––––––––––– • Access to Justice • Group Insurance • Military Assistance • Awards • Law Day • Paralegal • Bar Association Technology • Law-related Education • Professionalism • Bar Center Facilities • Law Schools • Rules of Professional • Bench and Bar • Lawyers Helping Lawyers Conduct • Civil Procedure Assistance Program • Solo and Small Firm • Communications • Lawyers with Physical Conference Planning • Disaster Response Challenges • Strategic Planning and Relief • Legal Intern • Uniform Laws • Diversity • Legislative Monitoring • Women in Law • Evidence Code • Member Services • Work/Life Balance

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Please Type or Print Name ______Telephone ______Address ______OBA # ______City ______State/Zip______FAX ______E-mail ______

Committee Name Have you ever served If so, when? 1st Choice ______on this committee? How long? q q ______2nd Choice ______Yes No q Yes q No ______3rd Choice ______q Yes q No ______q Please assign me to only one committee. q I am willing to serve on (two or three - circle one) committees. Besides committee work, I am interested in the following area(s): ______Mail: Cathy Christensen, c/o OBA, P.O. Box 53036, Oklahoma City, OK 73152 Fax: (405) 416-7001

2446 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Court of Civil Appeals Opinions

2011 OK CIV APP 72 In all other respects, the Opinion shall remain unaffected by this correction order. Scott Sexton, Plaintiff/Appellant, vs. Kipp Reach Academy Charter School, Inc., a DONE BY ORDER OF THE COURT OF Corporation, Defendant/Appellee, and Tracy CIVIL APPEALS this 29th day of September, McDaniel, an Individual, and Does 1-10, 2011. inclusive, Defendant. /s/ Deborah B. Barnes Case No. 109,090. October 4, 2011 Presiding Judge, Division II CORRECTION ORDER 2011 OK CIV APP 99 The Opinion in the above styled cause, filed Richard Brown, Plaintiff/Appellant, vs. April 22, 2011, is hereby corrected in the fol- Oklahoma Farm Bureau Mutual Insurance lowing particular. Company and AG Security Insurance Company, Defendants/Appellees. On page eight (8), the cite at the end of ¶16 shall read as follows: Case No. 108,726. September 28, 2011 Dixon v. Bhuiyan, 2000 OK 56, 10 P.3d 888. CORRECTION ORDER In all other respects, the Opinion shall remain The Opinion in the above styled cause, filed unaffected by this correction order. May 27, 2011, is hereby corrected in the follow- ing particular. On page 10, ¶13, the third sen- DONE BY ORDER OF THE COURT OF tence in the paragraph should read as follows: CIVIL APPEALS this 3rd day of October, 2011. The policy excludes coverage for property /s/ William C. Hetherington, Jr. damage not caused by any occurrence. Presiding Judge In all other respects, the Opinion shall remain 2011 OK CIV APP 94 unaffected by this correction order. National American Insurance Company, an DONE BY ORDER OF THE COURT OF Oklahoma corporation, Plaintiff/Appellee, CIVIL APPEALS this 27th day of September, vs. Gerlicher Company, LLC, an Oregon 2011. limited liability company; and OK Lakes, LLC, a Washington Limited Liability /s/ E. Bay Mitchell, III company, Defendants/Appellants, and Presiding Judge Pinion Construction, Inc., an Oklahoma corporation, Defendant. 2011 OK CIV APP 101 Case No. 108,114. September 30, 2011 HENRYETTA MEDICAL CENTER, Petitioner, vs. PEGGY L. ROBERTS, and CORRECTION ORDER THE WORKERS’ COMPENSATION COURT, Respondents. The Opinion in the above styled cause, filed June 30, 2011, is hereby corrected in the follow- Case No. 107,634. July 7, 2010 ing particular. On page 9, under ¶11, after the indented sentence, PROCEEDING TO REVIEW AN ORDER OF THE WORKERS’ COMPENSATION COURT This endorsement modifies insurance provided under the following: HONORABLE CLARENCE KENT ELDRIDGE, TRIAL JUDGE the all caps and bolded heading after the above SUSTAINED sentence should read as follows: COMMERCIAL GENERAL LIABILITY Richard L. Blanchard, MORREL SAFFA COVERAGE PART CRAIGE, P.C., Tulsa, Oklahoma, for Petitioner

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2447 Richard A. Bell, Heather A. Lehman, THE percent permanent partial impairment (PPI) to BELL LAW FIRM, Norman, Oklahoma, for the whole man due to injuries to her cervical Respondents spine, 36 percent PPI to the whole man from injuries to her lumbar spine, 32 percent PPI to JANE P. WISEMAN, CHIEF JUDGE: her right shoulder, 32 percent PPI to her left ¶1 Henryetta Medical Center (Employer) shoulder, and 10 percent PPI “to the whole man seeks review of an order of the Workers’ Com- from psychological overlay of depression.” pensation Court awarding Peggy L. Roberts (Claimant) permanent partial disability (PPD) ¶5 Dr. Trinidad stated that when he evaluat- benefits. The issue on appeal is whether the ed Claimant for permanent impairment, he trial court improperly considered functional used the 5th edition of the American Medical loss when assessing Claimant’s PPD. After Association’s Guides to the Evaluation of Perma- review of the record and applicable law, we nent Impairment, “except where scheduled find the trial court did not err and sustain its members are considered.” Dr. Trinidad indi- decision. cated that “[r]ange of motion testing of the extremities was performed with a goniometer FACTS AND PROCEDURAL and range of motion testing of the spine was BACKGROUND performed with an inclinometer, as prescribed ¶2 Claimant filed a Form 3 on March 20, in Chapter Fifteen of the AMA Guides.” Dr. 2008, in which she claimed depression and Trinidad found the following impairments due injury to her head, back, neck, and left shoul- to range of motion abnormalities: 13 percent to der as a result of a work-related injury occur- the cervical spine, 19 percent to the lumbar ring on December 16, 2007. Claimant stated she spine, 13 percent to the right shoulder, and 13 was injured when she slipped and fell as she percent to the left shoulder. was carrying boxes of trash to the dumpster. In ¶6 The Workers’ Compensation Court per- its answer, Employer admitted injury to Claim- mitted Claimant to amend her original Form 3 ant’s lower back. Employer, however, claimed to add her right shoulder as an additional the incident was not the major cause of her injured body part. The court found Claimant depression or the injuries to her head, left suffered accidental personal injury to her neck, shoulder, and neck. lumbar back, left shoulder, and right shoulder, ¶3 At a hearing on the issue of PPD, Employ- and consequential psychological overlay, all of er presented the report of Robert E. Paul, MD, which arose out of and in the course of her MPH. Dr. Paul gave the opinion that Claimant employment with Employer. The court addi- “has 10% whole man impairment due to her tionally found Claimant’s employment with lumbar spine problems,” with 5% attributable Employer was the major cause of the above- to “[c]ompression fracture, treated with excel- listed injuries. The court made the following lent results” and the other 5% attributable to findings as to PPD: “[d]ecreased range of motion.” Dr. Paul, how- THAT as a result of said injury [C]laimant ever, went on to state, that “[o]f this 10% whole sustained 5 percent permanent partial dis- man impairment, I do feel as though 6% should ability to the NECK (objective medical be apportioned to her degenerative changes evidence/anatomical abnormality, spasm), including old compression fracture (degenera- 20 percent permanent partial disability to tive changes) and 4% apportioned to the aggra- the LUMBAR BACK (objective medical vation of this old compression fracture (degen- evidence / anatomical abnormality, kyo- erative changes) by virtue of this on-the-job plasty of L5) (over and above pre-existing injury of 12-16-2007.” Dr. Paul found no impair- 6% disability), 7 percent permanent partial ment to Claimant’s head, cervical spine, and disability to the LEFT SHOULDER (objec- shoulders and no ratable condition as a result tive medical evidence/anatomical abnor- of depression. mality, injections), 9 percent permanent ¶4 In support of her claim for PPD benefits, partial disability to the RIGHT SHOUL- Claimant presented the medical report of Ken- DER (objective medical evidence/anatomi- neth R. Trinidad, D.O. After a review of Claim- cal abnormality, injections) and two percent ant’s medical history and a physical examina- permanent partial disability due to PSY- tion, Dr. Trinidad concluded that Claimant as a CHOLOGICAL OVERLAY/DEPRESSION, result of the December 16, 2007, accident has a 19 for which [C]laimant is entitled to compen-

2448 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 sation for 215 weeks at $233.41 per week, definition of permanent impairment, it did not or the total amount of $50,183.15 of which change the requirement that “[e]xcept as other- 93 weeks have accrued and shall be paid in wise provided herein, any examining physi- a lump sum of $21,707.13. cian shall only evaluate impairment in accor- The court overruled Employer’s objection to dance with the latest publication of the Amer- the admission of Dr. Trinidad’s deposition, ican Medical Association’s ‘Guides to the denied Claimant’s request for continuing cov- Evaluation of Permanent Impairment’ in effect erage for her prescription for Xanex, and at the time of the injury.” 85 O.S. Supp. 2005 ordered Employer to provide Claimant with § 3(19). Subsection 3(19) further provides, in medical maintenance with Dr. Scott Anthony. part, the following: ¶7 Employer appeals. The examining physician shall not deviate from said guides or any alternative thereto STANDARD OF REVIEW except as may be specifically provided for ¶8 Employer asserts that after amendments in the guides or modifications to the guides to the Workers’ Compensation laws in 2005, or except as may be specifically provided functional loss is no longer an element of PPD. for in any alternative or modifications “Issues of statutory construction are questions thereto, adopted by the Administrator of of law which [an appellate court] reviews de the Workers’ Compensation Court as pro- novo and over which we exercise plenary, inde- vided for in Section 201.1 of this title. These pendent, and non-deferential authority.” White officially adopted guides or modifications v. Lim, 2009 OK 79, n.5, 224 P.3d 679. thereto or alternative system or method of ANALYSIS evaluating permanent impairment or mod- ifications thereto shall be the exclusive ¶9 On appeal, Employer claims that 85 O.S. § basis for testimony and conclusions with 3, as amended in 2005, no longer provides that a regard to permanent impairment with the functional abnormality can be considered when exception of paragraph 3 of Section 22 of assessing a claimant’s permanent impairment. this title, relating to scheduled member Before 2005, “permanent impairment” as defined injury or loss; and impairment, including in § 3 was “any anatomical or functional abnor- pain or loss of strength, may be awarded mality or loss after maximum medical improve- with respect to those injuries or areas of the ment has been achieved, which abnormality or body not specifically covered by said loss the physician considers to be capable of guides or alternative to said guides. being evaluated at the time the rating is made.” 85 O.S. Supp. 2004 § 3(16). In 2005, the Legisla- ¶12 In evaluating impairment, the American ture amended § 3 to define “permanent impair- Medical Association, Guides to the Evaluation of ment” as “any anatomical abnormality after Permanent Impairment (AMA Press 5th ed. 2001), maximum medical improvement has been provides that functional loss is a component of achieved, which abnormality or loss the physi- rating permanent impairment. The Guides state cian considers to be capable of being evaluated the following: at the time the rating is made.” 85 O.S. Supp. 2005 § 3(19). Guides considers both anatomic and func- tional loss. Some chapters place a greater ¶10 Employer asserts the trial court erred in emphasis on either anatomic or functional using functional loss in assessing Claimant’s loss, depending upon common practice in PPD. Employer claims that the deletion of the that specialty. Anatomic loss refers to dam- phrase “or functional abnormality or loss” by age to the organ system or body structure, the Legislature indicated its intent to remove the while functional loss refers to a change in functional abnormality or loss component from function for the organ or body system. An consideration when determining permanent example of an anatomic deviation is devel- impairment. As a result, Employer asserts, “a opment of heart enlargement; functional rating physician cannot consider a functional loss includes a loss in ejection fraction or abnormality or loss when assessing a claimant’s the ability of the heart to pump adequately. permanent impairment.” We disagree. Anatomic loss receives greater emphasis in ¶11 Although it is clear that the Legislature the musculoskeletal system, as in measure- did remove the term “functional” from the ments such as range of motion. Functional

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2449 considerations receive greater emphasis in THE BEGGS PUBLIC WORKS the mental and behavioral section. AUTHORITY, Defendant/Appellant, and Bill Wilburn, Yvonne Cox, Tom Newton, The impairment criteria outlined in the and Gerald Bivins, Defendants. Guides provide a standardized method for physicians to use to determine medical Case No. 108,273. May 27, 2011 impairment. The impairment criteria APPEAL FROM THE DISTRICT COURT OF include diagnostic criteria, incorporating OKMULGEE COUNTY, OKLAHOMA anatomic and functional measures. The impairment criteria were developed from HONORABLE DUANE WOODLIFF, scientific evidence as cited and from con- TRIAL JUDGE sensus of chapter authors or of medical REVERSED AND REMANDED WITH specialty societies. DIRECTIONS Id. at 4. Steven M. Harris, Michael D. Davis, DOYLE, ¶13 Later on the Guides state that the “impair- HARRIS, DAVIS & HAUGHEY, Tulsa, Okla- ment ratings reflect the severity and limitations homa, for Plaintiff/Appellee, of the organ/body system impairment and James C. Milton, DOERNER, SAUNDERS, resulting functional limitations.” Id. at 9. The DANIEL & ANDERSON L.L.P., Tulsa, Oklaho- Guides’ glossary defines functional limitations ma, for Defendant/Appellant, Beggs Public as “[t]he inability to completely perform a task Works Authority, due to an impairment. In some instances, func- tional limitations may be overcome through David L. Weatherford, BIRMINGHAM, MOR- modifications in the individual’s personal or LEY, WEATHERFORD & PRIORE, P.A., Tulsa, environmental accommodations.” Id. at 601. Oklahoma, for Defendants/Appellants, Bill Wilburn, Yvonne Cox, Tom Newton, and Ger- ¶14 Employer asserts that after the 2005 ald Bivins. amendments to the Workers’ Compensation Act, “a rating physician cannot consider a CAROL M. HANSEN, Judge: functional abnormality or loss when assessing a claimant’s permanent impairment.” We reject ¶1 In 2007, the Okmulgee County Rural Employer’s argument. The Legislature did not Water District No. 2 [District] sued the Beggs change the fact that a rating physician must Public Works Authority [Authority] and indi- rely on, and in fact may not deviate from, the vidual members of Authority’s governing Guides in evaluating impairment. The Guides board, Defendants Wilburn, Cox, Newton, and clearly incorporate both anatomic and func- Bivins, alleging, in part, Authority had breached tional loss in evaluations for impairment. the provisions of a water purchase contract the Therefore, functional abnormality and loss parties signed in 2004. In its motion for partial must still be considered when evaluating a summary judgment, Authority argued the 2004 claimant’s impairment. Accordingly, we find contract was invalid and unenforceable for its the trial court did not err in considering func- own failure to comply with the notice require- tional abnormality or loss in awarding Claim- ments of the Oklahoma Open Meeting Act ant PPD benefits. [OMA]. The trial court granted partial sum- mary judgment in Authority’s favor.1 District CONCLUSION appealed. ¶15 We find that the Workers’ Compensation ¶2 The Oklahoma Court of Civil Appeals Court did not err in considering functional loss affirmed the decision of the trial court. [Okmul- when awarding PPD benefits to Claimant, and gee County Rural Water District No. 2 v. Beggs we sustain its decision. Public Works Authority, 2009 OK CIV APP 51, 211 P.3d 225].2 The Supreme Court denied cer- ¶16 SUSTAINED. tiorari and granted Authority’s motion for FISCHER, P.J., and BARNES, J., concur. appeal-related attorney fees, directing the trial court to determine the amount of fees to be 2011 OK CIV APP 103 assessed against District. OKMULGEE COUNTY RURAL WATER ¶3 On April 5, 2010, the trial court entered an DISTRICT NO. 2, Plaintiff/Appellee, vs. order awarding appeal-related attorney fees in

2450 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 favor of Authority and against District.3 That attorney fees because its conduct had caused same date, the trial court entered an order the dispute.8 Therefore, it could not recover denying Authority’s motion for trial-related under the contract provision that: “The BUYER attorney fees. agrees to pay reasonable attorney fees associ- ated with any dispute which arises from this ¶4 In its order, the trial court found, among agreement.” However, the Court of Civil other things: in lieu of an evidentiary hearing, Appeals held, “While fault can indeed be a the parties jointly filed stipulations for the trial court’s consideration in determining the attor- basis to deny attorney fees under a contract ney fee application; 12 O.S. 2001 §936 applies to provision, it is not a consideration for deter- the 2004 contract as a contract for the sale of mining entitlement as a prevailing party ‘[i]n goods;4 12 O.S. 2001 §936 prevailing-party sta- any civil action to recover on [a] contract relat- tus is available to Authority because it obtained ing to the purchase or sale of goods’ under 12 a 12 O.S. 2001 §994(A) final judgment as to a O.S. 1991 §936. An award of attorney fees to a properly-severed cause of action; and attorney prevailing party under §936 is mandatory.” fees in the amount of $57,198.33 are necessary “The decision to award attorney fees in [a §936 and reasonable and based upon standard rates case] is not discretionary.” Ellis v. Lebowitz, 1990 in the community. OK 107, 799 P.2d 620. ¶5 However, the trial court also found “under ¶8 Citing Tillman v. Shofner, 2004 OK CIV the unique facts of this case” it was “not appro- APP 40, 90 P.3d 582, District argues one who priate to award this fee . . .” to Authority violates the law should not benefit from such against District.5 It emphasized it had found violation. In Tillman, Tillman and her attorney, Authority violated the OMA, the violation was Shofner, conspired to defraud the U.S. Govern- willful, as defined, and the 2004 contract was ment. Both were sentenced in the U.S. District “not valid and enforceable.” In considering Court. Tillman sued Shofner for conversion Authority’s argument that to deny it attorney and professional negligence. Shofner raised the fees would result in the fees being borne by defense of in pari delecto which is the general Authority’s “public,” it found, “[t]he converse and universal rule “that where parties to an is also true: to grant the fees to [Authority] pay- immoral or illegal transaction are in pari delecto able by [District] would result in the fees being with each other, each is estopped, as to the paid by the [District] “public.” The trial court other, to take advantage of is own moral turpi- reasoned, “[t]he Court is persuaded by the tude, illegal act, or criminal conduct for pur- arguments of [District] . . . that ‘one should not poses of recovering damages for injuries sus- benefit from one’s own unlawful acts,’ and that tained as a consequence of their joint wrong . . the ‘law will not aid either party to an illegal . . And as between parties in pari delecto, the law contract, but will leave the parties where it will aid neither but will leave them as it finds finds them.’” Authority appeals this order.6 them.” Bowlan v. Lunsford, 1936 OK 158, 54 P.2d 666. Holding Tillman was in pari delecto with ¶6 The issue is whether Oklahoma law pro- Shofner, the Court of Civil Appeals affirmed vides an exception to §936 which would allow the trial court’s grant of summary judgment in a trial court to withhold attorney fees from a favor of Shofner. prevailing party based on the prevailing party’s conduct. When the reviewing court reviews the ¶9 However, neither Tillman, supra., nor Dis- reasonableness of an attorney fee, it uses the trict’s other citations of authority deal with the abuse of discretion standard. However, when defense of in pari delecto and its application to a the reviewing court reviews the question of request for attorney fees under §936. The com- whether an attorney fee is authorized by law, it mon law theory of in pari delecto may not be uses the de novo standard. Bays Exploration, Inc., viewed as changing the express terms of §936. v. Jones, 2007 OK CIV APP 111, 172 P.3d 217. This 12 O.S. 2001 §2 provides: Court reviews this matter de novo. The common law, as modified by constitu- ¶7 Authority submits it is entitled to a tional and statutory law, judicial decisions mandatory award of reasonable attorney fees and the condition and wants of the people, pursuant to 12 O.S. 2001 §936.7 In American shall remain in force in aid of the general Superior Feeds, Inc., v. Mason Warehouse, Inc., statutes of Oklahoma; but the rule of the 1997 OK CIV APP 43, 943 P.2d 171, the trial common law, that statutes in derogation court ruled the plaintiff was not entitled to thereof, shall be strictly construed, shall

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2451 not be applicable to any general statute of and Defendant/Appellant Beggs related to attorneys fees. The claims involving individual liability against the Trustees of the Beggs Public Oklahoma; but all such statutes shall be Works Authority remain pending in the District Court and the indi- liberally construed to promote their object. vidual Defendants are not directly affected by the results of this appeal and will not file a brief herein.” ¶10 “The common law which in this state 7. Section 936 provides: In any civil action to recover for labor or services rendered, or on remains in full force unless some legislative an open account, a statement of account, account stated, note, enactment explicitly provides otherwise, may bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, unless otherwise provided not be viewed as having been abrogated either by law or the contract which is the subject of the action, the pre- by silence or mere implication.” Watson v. Gib- vailing party shall be allowed a reasonable attorney fee to be set son Capital, L.L.C., 2008 OK 56, 187 P.3d 735. by the court, to be taxed and collected as costs. Although Authority requested both costs and attorney fees, the Here, the express terms of §936 explicitly pro- trial court’s April 5, 2010, order does not address the amount or reason- vide for a mandatory award of attorney fees. ableness of Authority’s costs. Authority seeks only recovery of the attorney fees approved by the trial court as reasonable, in the amount The award of §936 attorney fees is nondiscre- of $57,198.33. tionary. Ellis v. Lebowitz, supra. 8. In American Superior Feeds, the plaintiff sought to recover money owed by the defendant under a firm purchase contract. In ruling the ¶11 Oklahoma law does not provide an plaintiff was not entitled to recover attorney fees under section 936, it found the contract was “confusing and contradictory” with regard to exception to §936 which would allow a trial damages. court to withhold attorney fees from a prevail- ing party based on the prevailing party’s con- 2011 OK CIV APP 102 duct. The trial court erred in denying Authori- RANDY M. COMBS and TERESA COMBS, ties motion for attorney fees. Bays Exploration, husband and wife, Plaintiffs/Appellees, vs. Inc. v. Jones, supra. ETHEL MAXINE SHERMAN a/k/a/ STELLA ¶12 The order of the trial court denying MAXINE SHERMAN a/k/a ETHEL MAXINE Authority its reasonable and necessary attor- OVERBEY, AGNES MARIE OSBORN a/k/a ney fees is REVERSED AND REMANDED AGNES MARIE AUSBORN, STEPHANIE with directions to enter an order awarding D. WILLIS, and RICKY D. SHERMAN, if Authority attorney fees in the amount of living, or if they or any of them be deceased, $57,198.33. their known and unknown heirs, beneficiaries, executors, administrators, HETHERINGTON, P.J., and BELL, C.J., concur. devisees, trustees, legatees, successors and

1. The lawsuit dealt with issues regarding not only the 2004 water assigns, immediate and remote of each such contract, but also a 2001 water contract between the parties. Those person; LEGACY ROYALTY, LLC, SPARTAN issues relating to the 2001 contract and against the individual Defen- dants are wholly separate and distinct from District’s claims based on RESOURCES, LLC, LAKE HAMILTON the 2004 contract. The trial court granted partial summary judgment to MINERALS, LLC, TIM W. MUNSON, LLC, Authority on issues relating solely to the 2004 contract, disposing of all PEBBLESTONE PROPERTIES, LLC, and claims based on the 2004 contract. The order granting partial summary judgment constituted a final order under 12 O.S. 2001 section 994(A). MOUNTAIN FRONT RESOURCES, LLC, 2. The Court of Civil Appeals held the trial court properly granted Oklahoma limited liability companies, if in partial summary judgment to Authority on all claims based on the 2004 contract. existence, or if dissolved or defunct, the 3. The April 5, 2010, order assessing the appeal-related attorney unknown successors, trustees, or assigns of fees is a separate document from the order on appeal here. The amount of appeal-related attorney fees assessed against District is not before any such defunct or dissolved limited the Court in this appeal. liability companies, Defendants/Appellants. 4. The trial court also found, “This case involves claims relating to two (2) water purchase contracts, the 2001 Contract and the 2004 Contract. Case No. 108,255. August 29, 2011 [Authority] was the prevailing party as to claims concerning the 2004 Contract. The issues relating to the 2001 Contract are still pending.” 5. In this order, the trial court included its rationale from its order APPEAL FROM THE DISTRICT COURT OF granting partial summary judgment in favor of Authority: ATOKA COUNTY, OKLAHOMA The irony here has not escaped this Court: that [Authority] is asserting its own error as a defense to avoid certain terms of the HONORABLE NEAL MERRIOTT, 2004 revised contract . . . that it now deems unfavorable, after [District] (relied upon the revised contract) and spent large sums TRIAL JUDGE extending a line to the [Authority’s] system for water. Unfairness is screaming. This Court’s decision could not be sustained in the REVERSED AND REMANDED WITH “private sector” (because of the defense of detrimental reliance, INSTRUCTIONS which defense is not available in the public sector). In the “public sector,” however, the “public” is an innocent third party who David Youngblood, Atoka, Oklahoma, for must have notice and an opportunity to voice its opinion/objec- tion in local government. . . . Under Oklahoma Law, the public Plaintiffs/Appellees right to the protections extended under the Open Meeting Law has priority in this unusual set of circumstances. Laura J. Corbin, LAURA J. CORBIN, PLLC, 6. The counsel for the individual Defendants entered an appear- ance and filed a response to Authority’s petition in error, stating, in Tishomingo, Oklahoma and Barry Squires, Carn- part, “This appeal involves only issues between the Plaintiff District egie, Oklahoma, for Defendants/Appellants

2452 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 KEITH RAPP, JUDGE: ¶5 A disagreement arose over the percent of mineral interests conveyed by Sellers to the ¶1 In this quiet title action, Defendants, Rowtons and then to Buyers. In 2009, Buyers including Ethel Maxine Sherman and Agnes filed a petition, claiming a 1/2 mineral interest Marie Osborn (Sellers), appeal the trial court’s in the property. They asserted the Rowtons had judgment in favor of Plaintiffs, Randy and acquired a 1/4 interest from each sister, which Teresa Combs (Buyers). The trial court ruled added up to a 1/2 interest. Sellers asserted they Sellers had conveyed 1/2 the mineral interest had only conveyed a 1/4 interest. in a tract of land to third parties, who later con- veyed that interest to Buyers. Sellers asserted ¶6 At trial, Kenneth Rowton testified his they had conveyed only a 1/4 interest. For the impression was that he was purchasing half following reasons, we reverse and remand the mineral interest, though he conceded he with instructions to enter judgment in favor of “just had in my head it was about half.” Buyer Defendants. Randy Combs testified Rowton said “he would sell it to me the way that he purchased it.” FACTS ¶7 On the other hand, both Sellers testified ¶2 Sellers are two sisters who held joint own- they had intended to reserve 3/4ths of their ership in a 56-acre tract of land in Atoka County. interests. Their attorney examined Seller Agnes In a 1993 letter, they offered to sell the property Osborn as follows: to neighboring landowner Kenneth Rowton “for $175.00 per acre with one-quarter mineral rights Q. Did it [the deed] state you were keeping going to the buyer.” The letter contained a “P.S.” three fourths of the minerals? stating “Reference to the mineral rights — A. Yes it did. And that he was getting one Agnes and I [Ethel Sherman] will retain 3/4 of fourth. the minerals and sell 1/4 with the 56 acres.” Q. Is it, it’s not possible is it [to] keep three ¶3 Rowton and his son purchased the prop- fourths and convey a half is it, Mrs. erty at that price. No sales contract was execut- Osborn? ed. A law firm handling the closing prepared two identical joint tenancy warranty deeds, A. Not in my math. one for Seller Ethel Maxine Sherman, and the On cross-examination, she was asked: other for Seller Agnes Marie Osborn and her husband. Each contained the same legal Q. Ma’am, if you had a half, we’ve already description and the same reservation: established you had a half, your sister had a half and the deed says that it is your E 1/2 of NE 1/4 of NW 1/4 and SW 1/4 intent to convey a quarter, it is the intent of of NE 1/4 of NW 1/4 of Section 17; and W the grantor to convey a quarter, if you have 1/2 of SE 1/4 of SW 1/4 and all that part of a half and you get rid of a quarter you have SE 1/4 of SW 1/4 of SW 1/4 lying East of a quarter left, don’t you, ma’am? M. K. & T. Railroad right-of-way in Section 8, All in Township 3 South, Range 11 East, A. I guess I would have. containing 56 acres, more or less, as the ¶8 The trial court granted judgment in favor case may be, LESS AND EXCEPT an undi- of Buyers, finding they had a 1/2 mineral inter- vided 3/4ths interest in and to the oil, gas est in the property. In its journal entry of judg- and other minerals lying in and under the ment, the court made the following Conclu- property, which are specifically reserved sions of Law: by Grantor herein, it being the intent of Grantor herein to convey to Grantee here- Oklahoma has been committed to the in, an undivided 1/4th mineral interest. Duhig Rule whereby the conveyance repre- (Emphasis in the original). sents the grantor as the owner of a particular interest in property, and such interest is con- ¶4 In 1999, the Rowtons sold their entire veyed by the deed. The grantor is estopped interest in the property to Buyers, Randy and by his general warranty to claim that the Teresa Combs. Later, Buyers leased their min- deed conveyed a less estate than grantor’s eral interests. In 2007, Sellers sold their mineral complete ownership. Birmingham v. McCoy, interests to Legacy Royalty, LLC, another of the 358 P.2d 824; Duhig et al v. Peavy-Moore Lbr appellants in this case. Co., Inc., 135 Tex. 503, 144 S.W.2d 878.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2453 . . . ¶13 Second, Buyers’ reasoning ignores the essence of the ownership of a joint tenancy The legal effect of the conveyance or war- interest. A joint interest is defined as one ranty language in Ms. Sherman and Ms. owned by several persons in equal shares. 60 Osborn’s deed was their intent to convey to O.S.2001 § 74. In the ancient language of the Mr. Rowton 1/4 mineral interest each. To law, joint tenants were said to hold per my et per hold otherwise, would be in breach of their tout, meaning “by moiety or half and by all.” warranty clause where they warranted the Shackelton v. Sherrard, 1963 OK 193, ¶ 12, 385 title to Kenneth and Roy Rowton. P.2d 898, 901. In other words, a joint tenancy The Court finds from the testimony that allows each owner to hold a particular share Mr. Rowton intended on receiving a 1/2 which he may alienate, while at the same time interest in the minerals. That is exactly he and the other joint tenant hold the entire what the reservation and intention clause property as by a single ownership. Id. A joint of the paragraph does is to pass to him 1/2 tenancy has been variously described as undi- of the minerals — 1/4 from Ms. Sherman vided and concurrent, with a unity of posses- and 1/4 from Ms. Osborn. sion, and with each interest coextensive with

1 the others. 20 Am. Jur. 2d Cotenancy §§ 1-3 ¶9 Sellers appeal. (2011). “In the case of two joint tenants, the STANDARD OF REVIEW concept of joint tenancy with right of survivor- ship permits each owner to alienate and hold ¶10 Actions to quiet title to realty are pro- his share at the same time he and the other or ceedings in equity. We therefore review and others hold the entire property as by a single weigh the evidence, but absent an error of law, ownership. . . . Simply put, a joint tenancy we will set the judgment aside only if it is results in only one interest, created by one con- clearly against the weight of the evidence. veyance, at the same time, and held jointly yet Dawson v. Douglas, 1993 OK CIV APP 32, ¶ 14, undivided by both tenants.” In re Estate of Metz, 849 P.2d 441, 444. 2011 OK 26, ¶ 7, 256 P.3d 45, 49 (quotation ANALYSIS marks omitted). ¶11 Each of the two deeds given by the sis- ¶14 The “one interest” held by the sisters ters of their joint ownership reserves 3/4ths of was owned in “equal shares.” Each could con- the mineral interests to each Seller, and con- vey as much of her share as she liked, but no veys the remaining 1/4 of each Seller’s mineral more than that. Each sister conveyed one quar- interest. Buyers argued that because one quar- ter of her “equal share.” Buyers received one ter plus one quarter equals two quarters, or quarter of each “equal share.” That is not the one half, then one half is what was conveyed to same thing as two quarters of the whole. In them. For several reasons, this reasoning must short, each sister here owned an undivided be rejected. half of the entire estate, and each sold 1/4 of her interest. ¶12 First, Buyers’ math simply does not add up. Under Buyers’ logic, if each sister were to ¶15 Third, the cases relied on by Buyers do have reserved an undivided 3/4ths interest, not support their reasoning. These are the cases then they would have reserved 6/4ths or 150 cited by the trial court, Duhig v. Peavy-Moore percent of what they owned, a mathematical Lumber Co., 144 S.W.2d 878 (Tex. 1940), and impossibility. By the same token, if there were Birmingham v. McCoy, 1960 OK 183, 358 P.2d five sisters, all jointly owning the property, and 824. In their appellate brief, Buyers have cited each conveyed 1/4 interest, then they would them mostly for general legal principles (such have conveyed more than a hundred percent as a grantor cannot assert title in contradiction interest, again, an impossibility. In cross-exam- of his warranty) that are not dispositive of the ining one of Sellers, Buyers’ attorney suggested instant case. In the interest of fairness, we have that she and her sister each conveyed a quarter analyzed the cases fully. of the whole. However, each sister only con- ¶16 Duhig “stands for the proposition that veyed a quarter of her interest in the undivided where a warranty deed is executed by a grantor whole, which is not the same thing, as is next who owned one-half or less of the minerals, and discussed. the same grantor then attempted to convey and retain a one-half mineral interest, the warranty deed conveys to the grantee an absolute fee

2454 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 simple subject only to the reservation of the one- one seller who reserved 3/4ths and conveyed half interest previously retained by the grantor’s 1/4th, no one would seriously contend the seller predecessor in title.” Young v. Vermillion, 1999 was granting the entirety of her interest. OK CIV APP 114, ¶ 8, 992 P.2d 917, 919 (empha- ¶20 Fourth, and finally, there is nothing in sis omitted). The doctrine of estoppel prevents the record, either in the deeds themselves or in the grantor from claiming the one-half interest the other evidence, that indicates Sellers meant he reserved, because “[t]he grantor warrants the to divest themselves of more than a quarter interest he is conveying. He may not claim the interest. We therefore hold that Buyers acquired deed granted less than he owned.” Id.2 a one-quarter (1/4) mineral interest in the ¶17 Duhig was cited in Birmingham v. McCoy, property and that the trial court erred. 1960 OK 183, 358 P.2d 824. In that case, Wilson, CONCLUSION the grantor, had previously conveyed a half interest in mineral rights on land he owned. He ¶21 In an equitable matter, this Court may then executed a deed with Johnson in which he weigh the evidence and enter the judgment the reserved an undivided one-half interest in the trial court should have entered. Price v. Price, mineral rights. Wilson’s heirs claimed he had 1977 OK 205, ¶ 11, 573 P.2d 251, 253-54. Accord- not conveyed any mineral rights, because he ingly, the trial court’s decision is reversed, and had reserved the half interest he owned: “This this cause is hereby remanded with instruc- contention is predicated upon the proposition tions to enter judgment in favor of Defen- that as of date of the conveyance, Wilson, as dants/Appellants. reflected by the records of the county clerk, owned only one-half the minerals; that since he ¶22 REVERSED AND REMANDED WITH reserved one-half of the minerals none were INSTRUCTIONS. conveyed.” Id. at ¶ 20, 358 P.2d at 828. GOODMAN, P.J., and BARNES, J. (sitting by ¶18 The Supreme Court rejected this argu- designation), concur.

ment, relying on Murphy v. Athans, 1953 OK 1. The journal entry of judgment’s caption lists only one of the 373, 265 P.2d 461, for the principle that “where defendants and the notation “et al.” In the caption of this opinion, this a grantor conveys land by warranty deed but Court has included the names of additional parties listed in the peti- tion in error as Defendants/Appellants, including those who have excepts one-half the minerals, he is estopped to acquired Sellers’ mineral interests. For ease of reference, we will refer assert title to said mineral interest where one- to Defendants/Appellants’ arguments as those of Sellers.’ 2. Though it does not affect our analysis, we note that Young distin- half the minerals have been conveyed prior to guished Duhig because the former involved a quitclaim deed. his conveyance.” Birmingham at ¶ 23, 358 P.2d at 829. In the Murphy case, a property owner 2011 OK CIV APP 105 named Shortes conveyed property to Athans IN RE THE MARRIAGE OF: MELISSA but reserved a one-half oil and gas royalty; JOHNSON, Petitioner/Appellee, vs. SCOTT Athans later conveyed the property to Murphy JOHNSON, Respondent/Appellant. but also reserved a one-half oil and gas royalty. The Court held that what Athans had reserved Case No. 108,307. July 7, 2011 was the royalty interest already held by his APPEAL FROM THE DISTRICT COURT OF grantor, Shortes. “The intention of the parties COMANCHE COUNTY, OKLAHOMA as evidenced by the deed from Athans to Mur- phy is perfectly plain: Athans was excepting HONORABLE KEITH BYRON AYCOCK, from his warranty the one-half mineral interest TRIAL JUDGE in the 40 acres theretofore reserved by Shortes AFFIRMED IN PART, REVERSED IN PART and was granting to Murphy the entire tract AND REMANDED WITH DIRECTIONS except that one-half interest.” Murphy at ¶ 11, 265 P.2d at 464. Melissa Johnson-Caro, Elgin, Oklahoma, Pro se, Petitioner/Appellee, ¶19 These cases are distinguishable on their facts. First, unlike those cases, no evidence was Danny C. Williams, Rush Springs, Oklahoma, presented that the 3/4ths interest being for Respondent/Appellant. “reserved” by each sister had been previously CAROL M. HANSEN, Judge: reserved by another grantor. Second, the deeds in the instant case not only made reservations of ¶1 In August 1995, Petitioner, Melissa John- interest; they specifically stated what was being son [Wife], and Respondent, Scott Johnson “conveyed.” Third, if this case involved only [Husband] were married. In January 2009, Wife

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2455 filed a petition for separate maintenance against abused its discretion in ordering the protective Husband [case no. FD 2009-41], and in Febru- order to remain in effect for three years because ary 2009, Wife filed an “amended petition for the protective order, issued by Judge Harris divorce.”1 expired December 18, 2009, before the decree ¶2 On May 21, 2009, Judge Aycock entered a was filed. He also complained the trial court temporary order, which, among other things, abused its discretion in its “...custody and ali- restrained Husband “. . . from going around mony award.” On April 21, 2010, the trial court [Wife] at any place she may be, at home, at entered an order denying Husband’s motion work or anywhere else she might be, except for for new trial. Husband appeals this order. the picking up and delivering of the children ¶7 The denial of a motion for new trial is for visitation.” addressed to the sound discretion of the trial ¶3 Also in May 2009, while the divorce mat- court, and its action will not be disturbed on ter was pending, Wife sought a protective appeal unless it clearly appears the court erred order against Husband [case no. PO 2009-246]. in some pure, simple and unmixed question of Judge Harris issued an emergency protective law, or acted arbitrarily or capriciously. Ingram order against Defendant, ordering him not to v. Ingram, 2005 OK CIV APP 87, 125 P.3d 694. have any contact with Wife, not to stalk her, ¶8 Husband argues Judge Aycock had no injure her nor harass her. In the emergency authority in the decree to order the protective protective order, Judge Harris set a hearing on order, issued by Judge Harris under another the matter for June 12, 2009, the same date for expiration of the terms of the emergency pro- case number, to remain in effect for three years. tective order.2 The protective order expired December 18, 2009. Judge Aycock never issued a protective ¶4 On October 21, 2009, Judge Aycock con- order in the divorce matter. Title 22 O.S. ducted the divorce trial. On November 30, Supp.2008 §60.2A.(1) provides, in part: 2009, Judge Aycock filed a letter ruling, addressed to both parties’ counsel, determin- A. * * * ing custody of the parties’ two sons, the par- 1. . . . If a petition has been filed in an action ties’ separate property, dividing the marital for divorce . . . and either party to the property, and awarding Wife support alimony. action files a petition for protective order in He also determined “’The Protective Order and the same county where the action for Mutual Orders of Restraint’ shall remain in divorce . . . is filed, the petition for the pro- effect.” tective order may be heard by the court ¶5 On February 4, 2010, Judge Aycock entered hearing the divorce . . . if: the decree of divorce. Among other things, he a. there is no established protective order awarded custody of the parties’ two sons to docket in such court, or Wife and awarded Husband standard visita- tion. He also awarded Wife “alimony in lieu of b. the court finds that, in the interest of support... in the amount of $23,400, payable at judicial economy, both actions may be the rate of $1200.00 per month for 12 months, heard together; provided, however, the commencing January 1, 2010 and $750.00 per petition for a protective order, . . . shall month for 12 months, commencing January 1, remain a separate action and a separate 2011.” He determined the 1970 Ford Mustang, order shall be entered in the protective and the 1952 GMC pickup to be jointly owned order action... property and that they should be sold and the proceeds divided equally between the parties. ¶9 Husband states, and Wife does not dis- Further, he ordered “[t]he Protective Order and pute, that “Judge Harris maintains an estab- mutual Orders of Restraint remain in full force lished protective order docket for victims [sic] and effect for the statutory limit of three (3) protective orders.” The docket sheet in case no. years.” PO 2009-246 indicates a separate action and separate orders. ¶6 Husband filed a motion for new trial, arguing the trial court abused its discretion in ¶10 Contrary to §60.2A(1)(a), Judge Aycock its division of marital property and its determi- had no authority in the divorce decree to order nation of the character of certain personal that “[t]he Protective Order and mutual Orders property. He further argued the trial court of Restraint remain in full force and effect for

2456 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 the statutory limit of three (3) years.” Judge cretion in so finding. In re Marriage of Murphy, Aycock abused his discretion in so ordering. 2010 OK CIV APP 1, 225 P.3d 820. ¶11 Husband also submits the trial court ¶13 Next, Husband contends the trial court abused its discretion in finding a 1970 Ford abused its discretion in dividing the martial Mustang and a 1952 GMC pickup marital estate because it awarded Wife an inequitable property, which it ordered sold and the pro- distribution of personal property. Title 43 O.S. ceeds equally divided. Husband testified he §121 provides, in part, “. . . As to such property purchased both vehicles prior to marriage. whether real or personal which has been Wife testified Husband owned the 1970 Mus- acquired by the parties jointly during their tang prior to marriage, but that after marriage marriage, whether the title thereto be in either she and Husband “ . . . spent an extensive or both of said parties, the court shall . . . make amount of money buying items . . .” to restore such division between the parties as may it. She also testified after she and Husband appear just and reasonable. . . .” married, his father “. . . gave [the 1952 pickup] ¶14 Husband does not explain why the divi- to us.” sion of the personal property is inequitable. He ¶12 Wife also testified the titles to both vehi- only notes the trial court awarded Wife posses- cles were registered in both her name and sion of the marital home, even though she can- Husband’s name. Husband did not produce not afford to make payments on it. He further any evidence to the contrary. In fact, the trial explains that during the divorce proceedings, court opined: Wife purposefully damaged his 1935 Chevrolet truck, his separate property. He testified the A discovery request was made in the prop- value of the truck was $3,000.00. He complains er course of this case that has not been the trial court did not award him $3,000.00 for complied with. I’ve heard the testimony damage to the truck. from [Wife] in this case that in her judg- ment that these [vehicles] are all held ¶15 In spite of the above-mentioned com- jointly. And the conclusions that I’m going plaints, Husband does not demonstrate the to make in this case is that the titles on all division of the personal property was not “just of these vehicles show that they’re held as and reasonable.” He has not sustained his bur- joint tenants unless you can show me evi- den of demonstrating the trial court abused its dence to the contrary. discretion in its division of the personal prop- erty in the marital estate.” Teel v. Teel, 1988 OK Now, [Wife’s counsel] has made a proper 151, 766 P.2d 994. request for those titles and apparently they’ve not been forthcoming. That rests in ¶16 Next, Husband argues the trial court the lap of [Husband]. Either you or the erred in entering an award of “alimony that previous attorney. was unclear and unenforceable.” In the decree, the trial court ordered: And I’m not going to have [Wife’s counsel] or his client suffer the consequences of a [Wife] be and she is hereby awarded ali- discovery lapse or a failure to comply with mony in lieu of support in the amount of discovery. $23,400.00 payable at the rate of $1200.00 per month for 12 months, commencing * * * January 1, 2010, and $750.00 per month for If at some point title to these cars was con- 12 months, commencing January 1, 2011. veyed to these parties as joint tenants, then ¶17 Husband suggests the trial court’s award that’s a gift. “is an additional award of property and not So unless you’ve got some documentary support,” and prays the Court of Civil Appeals remand the matter for clarification. evidence to the contrary, I’m going to make a ruling that all of these vehicles are held ¶18 In its November 30, 2009, letter ruling to jointly. the parties’ counsel, the trial court found, in part: The trial court’s finding classifying the 1970 Ford Mustang and the 1952 pickup as marital The Court finds that [Wife] has demonstrat- property is not contrary to the weight of the ed that she has financial needs over and evidence. The trial court did not abuse its dis- above those met by child support and her

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2457 salary, and further finds that she should be ¶21 Finally, Husband contends he cannot awarded support alimony in the total sum of adequately prepare for the present appeal $23,400, payable at the rate of $1200 per because pages 131-138 and pages 230-242 of the month for 12 months and $750 for the sec- trial record are missing. He further complains ond 12 months. Said support alimony shall the “District Clerk of Comanche County” commence on or before January 1, 2010. denied him a requested copy of the trial record. He prays this Court remand the matter to the The trial court’s finding in the November trial court to determine omissions in the record 30th letter ruling clearly indicates because Wife and to order that a copy of the trial record be has financial needs, she should be awarded made available to him. support alimony in a specific amount payable at a designated rate for a certain period of time. ¶22 In spite of Husband’s contention, pages In the decree the trial court awarded Wife the 131-138 and pages 230-242 are contained in the same specific amount, payable at the same des- record. Moreover, Husband does not explain ignated rate and for the same period of time. It how he has been hindered in presenting his is apparent the trial court’s characterization of propositions of error on appeal. This conten- “alimony in lieu of support” is, in fact, “sup- tion is without merit. port alimony,” not an award of property. ¶23 This matter is AFFIRMED IN PART, ¶19 Next, Husband submits the trial court REVERSED IN PART AND REMANDED abused its discretion in awarding physical cus- WITH DIRECTIONS TO VACATE THAT PART tody of the parties’ two sons to Wife. He points OF THE DECREE ORDERING “[t]he Protec- out witnesses testified he is a good father. On tive Order and mutual Orders of Restraint the other hand, he points out Wife’s mother remain in full force and effect for the statutory testified Wife turned off the son’s cell phone limit of three (3) years.” late one night after the son complained to HETHERINGTON, P.J., and BELL, C.J., concur. Father he was tired and did not want to talk. A witness testified, while in Wife’s custody, the 1. The record on appeal does not include a petition for divorce or an amended petition for divorce. sons were locked out of the house when they 2. The trial court docket sheet in case no. PO-2009-246 indicates returned home before Wife returned home. that on June 15, 2009, Judge Harris continued Wife’s application for Also, the sons had been left alone on more than “temporary restraining order” until August 20, 2009: “The ex parte order of restraint to remain in full force and effect; the defendant to one occasion. have no contact with plaintiff.” On August 17, 2009, Judge Harris con- tinued the application for “temporary restraining order” until October ¶20 The party alleging error in the trial 29, 2009: “The ex parte order of emergency protective order to remain court’s determination of custody must set forth in full force and effect. The defendant to have no contact with plaintiff. So ordered.” The docket sheet indicates on October 29, 2009, Judge the evidence upon which he relies and must Harris granted the protective order. On November 19, 2009, Judge Har- affirmatively show how the determination is ris ruled “the emergency protective order shall remain in effect until December 18, 2009, . . . at which time the emergency order of protection contrary to the best interest of the child. Acox v. shall expire. . . .” The same trial court docket sheet also reveals that on Acox, 2000 OK CIV APP 136, 18 P.3d 363. February 11, 2010, Judge Aycock, rather than Judge Harris, issued a court minute stating, “Protective Order, PO-2009-246, and mutual Although Husband points out select testimony orders of restraint remain in full force and effect for the statutory limit favorable to him, several witnesses testified of three (3) years. Per decree of divorce in FD-2009-41 filed 2/4/10. So Wife is an excellent mother. The trial court is ordered.” On February 22, 2010, Judge Aycock issued another court minute stating, “Protective order to remain in full force and effect until entitled to choose which testimony to believe 5/29/2012. So ordered.” as the judge has the advantage over this Court in observing the behavior and demeanor of the 2011 OK CIV APP 104 witnesses. Meuggenborg v. Walling, 1992 OK CHARTER OAK PRODUCTION CO., L.L.C., 121, 836 P.2d 112. The trial court had the parties Plaintiff/Appellant, vs. ADRIAN O’SHEA before it and was in the best position to deter- MORGAN and BNO ENTERPRISES, L.L.C., mine that which will be in the best interest of Defendants/Appellees. the sons. The trial court’s custody decision will Case No. 108,289; Comp. w/108,290 not be reversed unless it was contrary to law or clearly against the weight of the evidence. Gor- March 31, 2011 ham v. Gorham, 1984 OK 90, 692 P.2d 1375. This APPEAL FROM THE DISTRICT COURT OF Court cannot say the custody decision is con- McCLAIN COUNTY, OKLAHOMA trary to the clear weight of the evidence or that it is contrary to law. HONORABLE CHARLES N. GRAY, JUDGE

2458 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 REVERSED AND REMANDED defines a surface owner under the Act as an owner “of record” of the affected surface prop- Alan Agee, GARVIN, AGEE, CARLTON & erty, the Act’s definition of an operator contains MASHBURN, P.C., Pauls Valley, Oklahoma, for no such “of record” requirement. Plaintiff Plaintiff/Appellant, responded to the dismissal motions by produc- James B. Blevins, Jr., Carrie Kopp, Purcell, ing the Commission’s order showing Plaintiff as Oklahoma, for Defendant/Appellee, Adrian the designated unit operator. O’Shea Morgan, ¶4 The trial court ordered the proceedings as Rollin Nash, Jr., Gina D. Knight, NASH, COHE- a companion to another Surface Damages Act NOUR, KELLEY & GIESSMAN, P.C., Oklaho- matter involving Plaintiff and the court’s even- ma City, Oklahoma, for Defendant/Appellee, tual ruling disposed of both cases. The other BNO Enterprises, L.L.C. case, which is the subject of the appeal in Case No. 108,290, was previously a companion case ROBERT DICK BELL, CHIEF JUDGE: with the instant proceedings for appellate ¶1 Plaintiff/Appellant, Charter Oak Produc- review. We decide both appeals today by sepa- tion Co., L.L.C., appeals from the trial court’s rate opinions. order granting the dismissal motions of Defen- ¶5 After conducting a hearing and receiving dants/Appellees, Adrian O’Shea Morgan and evidence, the trial court dismissed Plaintiff’s BNO Enterprises, L.L.C., on the ground Plain- petition. The trial court rejected the Defen- tiff did not have standing to bring this action as dants’ argument that §318.2(1) required Plain- an “operator” under the Surface Damages Act tiff to demonstrate record ownership to estab- (Act), 52 O.S. 2001 §318.2 et seq. For the reasons lish standing as an operator under the Act. set forth below, we reverse and remand for However, the trial court held Plaintiff failed to further proceedings. show it had any interest in the subject property ¶2 The record reveals that by Order No. prior to filing its petition. It is apparent from the 568552, dated June 22, 2009, the Oklahoma dismissal order that the trial court rejected some Corporation Commission (Commission) desig- evidence showing Plaintiff acquired leasehold nated Plaintiff as the operator of an 80 acre interests in the subject property prior to Septem- drilling and spacing unit in McClain County. ber 2, 2009. Plaintiff’s motion for new trial was Thereafter, Plaintiff attempted to negotiate sur- overruled. From said judgment, Plaintiff appeals. face damages with Defendant Morgan, who is This matter stands submitted for accelerated the record surface estate owner of several acres appellate review on the trial court record pursu- of the subject property by virtue of a contract for ant to Rule 4(m), Rules for District Courts, 12 O.S. deed executed by Defendant BNO. When a set- Supp. 2002, Ch. 2, App., and Rule 1.36, Oklahoma tlement could not be reached, Plaintiff filed the Supreme Court Rules, 12 O.S. Supp. 2003, Ch. 15, instant action on September 2, 2009, seeking the App. 1. In reviewing a trial court’s “disposition appointment of appraisers to help settle the by dismissal, this court examines the issues de amount of Defendants’ damages. See 52 O.S. novo.” May v. Mid-Century Ins. Co., 2006 OK 100, Supp. 2002 §318.5(A). The Petition averred ¶10, 151 P.3d 132, 136. Plaintiff had the right to bring the action by vir- ¶6 Notwithstanding the arguments advanced tue of express and implied terms of certain oil by both sides during the course of litigation and gas leases and operational agreements cov- and on appeal, we find Defendants’ assault on ering the mineral rights in the subject property. Plaintiff’s standing as an operator under the ¶3 Both Defendants independently moved to Surface Damages Act amounts to a collateral dismiss on the ground Plaintiff did not have attack on Commission Order No. 568552. Title standing to bring this action when it did. Spe- 52 O.S. 2001 §111 states in relevant part: cifically, both Defendants asserted Plaintiff was No collateral attack shall be allowed required to show under §318.2(1) that it had upon orders, rules and regulations of the record ownership of a mineral or leasehold Commission made hereunder, but the sole interest before it qualified as an “operator” method of reviewing such orders and under the Act. Section 318.2(1) defines an opera- inquiring into and determining their valid- tor as “a mineral owner or lessee who is engaged ity, justness, reasonableness or correctness in drilling or preparing to drill for oil or gas.” As shall be by appeal from such orders, rules Plaintiff correctly notes, unlike §318.2(2) which or regulations to the Supreme Court. On

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2459 appeal every such order, rule or regulation of the judgment roll, a district court has no shall be regarded as prima facie, valid, rea- authority to second guess a Commission order sonable and just. No court of this state designating a unit operator. Nilsen, 1985 OK 104 except the Supreme Court, and it only on at ¶11, 711 P.2d at 101 n.5. appeal, as herein provided, shall have ¶9 In the present case, the Commission pos- jurisdiction to review, reverse, annul, mod- sessed the exclusive authority to decide wheth- ify or correct any order, rule, or regulation er Plaintiff had the right to drill in the subject of the Commission within the general scope property, and we presume the Commission’s of its authority . . . . determination was supported by substantial ¶7 “A collateral attack is an attempt to avoid, evidence. Nothing in the record demonstrates defeat, evade, or deny the force and effect of a the Commission lacked jurisdiction to enter final order or judgment in an incidental pro- Order No. 568552. By attacking Plaintiff’s ceeding other than by appeal, writ of error, standing as an operator, Defendants are certiorari, or motion for new trial.” Nilsen v. attempting to defeat a final, facially invulnera- Ports of Call Oil Co., 1985 OK 104, ¶11, 711 P.2d ble order of the Commission. Such an assault 98, 101 n.5. upon an operator’s standing to bring a pro- ceeding under the Surface Damages Act is a When considering a collateral attack, a prohibited collateral attack on the Corporation court may not go beyond determining Commission’s authority to designate a unit whether the judgment is void on the face of operator. the judgment roll. [Nilsen] at n.6, 711 P.2d at 101. “A collateral attack may not be ¶10 On the basis of the foregoing and after de launched on a Commission order facially novo review, we hold the trial court erred in invulnerable. A district court’s power to holding Plaintiff lacked standing to initiate inquire into the validity of Commission these proceedings. Accordingly, the judgment orders is legally limited to ascertaining if of the trial court is reversed and this matter is [the] Commission had jurisdiction to issue remanded for further proceedings consistent the order.” Pelican [Prod. Corp. v. Wishbone with this opinion. Oil & Gas, Inc.], 1987 OK CIV APP 74at ¶13, 746 P.2d [209] at 212. ¶11 REVERSED AND REMANDED. Harding & Shelton, Inc. v. PITCO, 2005 OK CIV HETHERINGTON, P.J., and HANSEN, J., concur.

APP 88, ¶20, 123 P.3d 56, 63. 1. Section 318.8 of the Surface Damages Act specifically states, “Nothing in this act shall be construed as repealing or limiting the ¶8 We agree with Defendants that the Com- jurisdiction, authority and power of the Oklahoma Corporation Com- mission does not have jurisdiction to determine mission.” Thus, no definition of “operator” under the Act could be interpreted as limiting the Commission’s authority to name a unit title. Samson Resources Co. v. Oklahoma Corp. operator pursuant to §87.1(a). Comm’n, 1993 OK CIV APP 67, ¶9, 859 P.2d 1118, 1121. However, the Commission does 2011 OK CIV APP 106 have under Oklahoma’s Oil and Gas Con- MIKE ANDERSON, Plaintiff/Appellant, vs. servation Act, specifically 52 O.S. Supp. 2007 ACCESS MEDICAL CENTERS; DERRICK §87.1(a), “the power to receive evidence and FREEMAN, D.O.; LENARD “LENNY” determine whether an applicant owns minerals PHILLIPS, D.O.; and BRUCE CORNETT, D. or has the right to drill in the subject unit.” O., Defendants/Appellees. Samson at ¶9, 859 P.2d at 1121. Such a determi- nation “is a finding of fact to be made by the Case No. 108,314. July 28, 2011 Commission, whose findings must be supported APPEAL FROM THE DISTRICT COURT OF by substantial evidence.” Id. at ¶8, 859 P.2d at OKLAHOMA COUNTY, OKLAHOMA 1121. Moreover, in the exercise of its state police powers, the Commission is vested with exclu- HONORABLE TWYLA MASON GRAY, sive jurisdiction to designate the operator of a TRIAL JUDGE drilling and spacing unit. Crest Res. & Exploration DISMISSED Corp. v. Corporation Comm’n, 1980 OK 133, ¶¶5-6, 617 P.2d 215, 217.1 The sole method for seeking Michael L. Bardrick, Oklahoma City, Oklahoma review of such an order is by appeal to the Okla- and Thomas J. Steece, OKLAHOMA LEGAL homa Supreme Court. 52 O.S. 2001 §111. Absent SERVICES, P.L.L.C., Oklahoma City, Oklaho- some jurisdictional defect apparent on the face ma, for Appellant

2460 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 John Wiggins, Erin A. Renegar, WIGGINS case, Attorneys told Plaintiff that if the medical SEWELL & OGLETREE, Oklahoma City, Okla- records from Plaintiff’s most recent visit to the homa, for Defendants/Appellees cardiologist confirmed his return to normal cardiac function, Attorneys “will need to dis- JANE P. WISEMAN, JUDGE: cuss winding up this litigation and closing ¶1 Plaintiff Michael Anderson’s former attor- [Plaintiff’s] file.” neys, Michael L. Bardrick and Thomas J. Steece 1 ¶5 On October 22, 2009, Attorneys sent Plain- (Attorneys) , appeal the trial court’s denial of a tiff a second letter stating that with the improve- motion to vacate. The issues raised in this ment in Plaintiff’s condition, Attorneys did not appeal include whether Attorneys have stand- feel it was in Plaintiff’s best interest to continue ing to appeal independent of Plaintiff, whether the litigation. According to Attorneys’ state- they had standing to file a motion to vacate ment in the letter, Plaintiff had agreed with without Plaintiff’s consent, and whether Attorneys and authorized Attorneys to file a grounds exist pursuant to 12 O.S.2001 §§ 1031 dismissal without prejudice as to all Defen- and 1038 to vacate the trial court’s order dis- dants. Attorneys further stated, “I have caused missing the lawsuit without prejudice. Having a dismissal without prejudice to be filed in reviewed the record and pertinent law, we dis- your case” and told Plaintiff that they were miss this appeal for lack of standing. closing his file and advising him to pick up his FACTS AND PROCEDURAL medical records from their office. BACKGROUND ¶6 In December 2009, Plaintiff retained new ¶2 On February 28, 2007, Plaintiff filed a counsel to pursue a possible legal negligence medical malpractice case against Access Medical claim against Attorneys arising from their han- Centers, Derrick Freeman, D.O., Lenard Phillips, dling of Plaintiff’s medical malpractice case. D.O., and Bruce Cornett, D.O. (Defendants). On December 28, 2009, Plaintiff’s counsel sent Attorneys a letter to that effect asking Attor- ¶3 On September 17, 2007, Defendants issued neys to forward the letter to their liability car- discovery requests to Plaintiff. Plaintiff did not rier. On January 12, 2010, Plaintiff’s counsel respond. After making several attempts to con- sent a letter to Oklahoma Attorneys Mutual tact Plaintiff’s counsel by letter and telephone Insurance Company reciting the history of regarding the overdue responses, Defendants Attorneys’ representation of Plaintiff and mak- filed a motion to compel on January 14, 2008. ing a claim for Attorneys’ legal negligence. Plaintiff’s counsel neither responded to the motion nor appeared for the hearing on the ¶7 On March 11, 2010, Attorneys filed a motion. The trial court granted Defendants’ motion to vacate the May 15, 2008, dismissal motion and ordered Plaintiff to respond to dis- arguing that pursuant to 12 O.S.2001 § 1031(3), covery. The trial court further stated in its order an irregularity in obtaining the order autho- that if Plaintiff continued to resist discovery, rized its vacation. Attorneys argued Defen- “this case may be dismissed without prejudice dants’ lack of compliance with the “Seventh upon application.” When Plaintiff still failed to Judicial District Rules and the Oklahoma respond to discovery, Defendants filed a motion Supreme Court pronouncements requiring to dismiss on March 25, 2008. Plaintiff’s coun- notice and participation of all counsel in the sel again failed to respond to the motion or memorialization process” of the May 15, 2008, appear for the hearing. At the May 15, 2008, dismissal amounted to an irregularity and the hearing on the motion, the trial court granted dismissal should be vacated. Defendants’ motion to dismiss and dismissed ¶8 In their response, Defendants contended the case without prejudice for failure to co- Plaintiff failed to demonstrate any irregularity in operate in discovery. the order in light of Attorneys’ knowledge of Defendants’ discovery motions, including their ¶4 Almost a year and a half later, on October motion to dismiss, and the hearings on those 6, 2009, Attorneys sent Plaintiff a letter inform- motions, and Attorneys’ failure to respond either ing him they had reviewed his current medical in writing or by appearance at the hearings. records which they represented as showing “a marked improvement in [his] cardiac function” ¶9 Defendants shortly thereafter filed a sup- and “[his] apparent return to better health.” plemental response, arguing the motion to Registering concern about the effect of this vacate should be denied because Attorneys news on Plaintiff’s damages in his malpractice had no standing to seek vacation of the dis-

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2461 missal because they no longer represented ¶ 8, 890 P.2d at 910-11. The question to be Plaintiff and had no authorization to file a decided is whether Attorneys have established motion to vacate in Plaintiff’s name. Attached the necessary elements of standing to permit to the supplemental response was Plaintiff’s them to challenge the trial court’s order deny- affidavit in which he testified (1) that he ing the motion to vacate. retained new legal counsel to pursue a possible legal malpractice claim against Attorneys, (2) ¶14 The general rule is “that only parties to a that he had not authorized Attorneys to file a judgment have standing to set it aside.” Craw- motion to vacate on his behalf, and (3) that ford v. Gipson, 1982 OK 31, ¶ 7, 642 P.2d 248, Attorneys did not currently represent him. 250. An appellant must show a legally protect- Defendants argued that because Attorneys had able interest has been injured in fact in order to no standing, “an unauthorized motion request- have standing to appeal. The injury in fact ing relief is improper and substantially preju- must be “direct, substantial and immediate, dices the rights of [D]efendants.” rather than contingent on some possible remote consequence or possibility of some unknown ¶10 On April 14, 2010, after a hearing, the future eventuality.” Toxic Waste Impact Grp., trial court overruled Attorneys’ motion to 1994 OK 148 at ¶ 9, 890 P.2d at 911. vacate. ¶15 To support their claim of a legally pro- ¶11 Attorneys appeal. tected interest that has been injured, Attorneys STANDARD OF REVIEW cite Crawford, 1982 OK 31, 642 P.2d 248. In ¶12 “The burden is on the party invoking a Crawford, the plaintiff filed an action against court’s jurisdiction to establish its standing to the defendant, Gipson, for personal injuries seek relief in the court.” Oklahoma Educ. Ass’n v. arising from an automobile accident. Id. at ¶ 1, State ex rel. Oklahoma Legislature, 2007 OK 30, ¶ 7, 642 P.2d at 249. The defendant was personally 158 P.3d 1058, 1062. “Only if standing exists served with summons, and when he failed to must the case proceed to the merits.” Toxic Waste plead or answer, a default judgment was taken Impact Grp., Inc. v. Leavitt, 1994 OK 148, ¶ 9, 890 against the defendant. Id. Five months later, the P.2d 906, 911. “Whether a party lacks standing to defendant’s insurer, State Farm Insurance appeal is a question of law, which this Court Company, without defendant’s consent, filed a reviews de novo . . . .” In re Baby W., 2009 OK petition to vacate. Id. at ¶ 2, 642 P.2d at 249. CIV APP 21, ¶ 7, 220 P.3d 32, 34. ¶16 The question on appeal was whether ANALYSIS State Farm, who was not a party to the suit below, had standing to pursue vacation of the ¶13 Before reaching the merits of the appeal, judgment. Id. at ¶ 5, 642 P.2d at 249. The we must first address Defendants’ argument Supreme Court noted there are exceptions to that Attorneys lack standing to appeal and that the general rule that only parties have standing the appeal should be dismissed. Standing is the to set aside judgments. Id. at ¶ 7, 642 P.2d at determination of whether the appellant is “the proper party to seek adjudication of the assert- 250. Attorneys in the present case relied on an ed issue.” Cities Serv. Co. v. Gulf Oil Corp., 1999 exception delineated in Crawford which applies OK 16, ¶ 5, 976 P.2d 545, 547. Three elements to those who are “’necessarily affected by the must be met to establish standing: judgment, and who have equities entitled to be protected from its operation.’” Id. (quoted cita- (1) a legally protected interest which must tion omitted). The Court noted that “’[o]ne have been injured in fact — i.e., an injury who is ultimately liable as indemnitor of the which is actual, concrete and not conjec- judgment debtor may seek relief.’” Id. The tural in nature, Court quoted the reasoning from Kollmeyer v. (2) a causal nexus between the injury and Willis, 408 S.W.2d 370 (Mo. Ct. App. 1966), in the complained of conduct, and which the Missouri Court stated “’one not a party to the record, whose rights are injuri- (3) a likelihood, as opposed to mere specu- ously affected by a judgment as the rights of an lation, that the injury will be redressed by a indemnitor may be, will be heard upon his favorable decision. motion to set aside a judgment.’” Crawford, Id. at ¶ 3, 976 P.2d at 547 (emphasis omitted); 1982 OK 31 at ¶ 9, 642 P.2d at 250 (quoting Koll- see also Toxic Waste Impact Grp., 1994 OK 148, meyer, 408 S.W.2d at 378).

2462 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 ¶17 In Crawford, a default judgment for clude Crawford does not support Attorneys’ $25,000 had been entered against the defendant argument that they have standing. for all or some of which State Farm was ulti- ¶21 Although Attorneys cite several cases in mately liable as the defendant’s indemnitor. Id. their reply brief for the proposition that their at ¶¶ 1-2, 642 P.2d at 249. State Farm’s liability attorney lien in Plaintiff’s case gave them an was concrete and particularized, was actual and imminent, and was not conjectural or interest sufficient to establish standing, none hypothetical. of the cited Oklahoma cases involves an issue of standing. We agree with Defendants’ posi- ¶18 The Court in Crawford clearly applied the tion that allowing standing to be established exception to indemnitors having concrete and on the basis of an attorney’s contingent fee actual or imminent injuries. Id. at ¶¶ 7-11, 642 agreement or lien alone would allow any P.2d at 250. The Court explicitly narrowed the attorney with such a fee arrangement to appeal exception’s applicability when it ruled that an adverse rulings without the client’s participa- “insurer not a party to the suit below, who is tion or consent, and perhaps even after the injuriously affected by the judgment, will be client’s termination of the attorney’s represen- heard on his petition to set aside a judgment.” tation. We decline to do so. Id. at ¶ 11, 642 P.2d at 250. The Court empha- sized that it was in no way changing the “gen- ¶22 We also note that in general, “an order eral rule that a stranger to the record has no removing a party’s counsel (upon disqualifica- right to move for vacation.” Id. The Court rea- tion or for other reasons) may be viewed on soned that changing the general rule would appeal [when] brought by the client.” Towne v. “encourage litigation, allowing third persons to Hubbard, 1999 OK 10, ¶ 2, 977 P.2d 1084, 1085 intervene and overturn adjudications to which (emphasis added). It is recognized that “a par- the original parties made no objection.” Id. ty’s legal counsel has standing, separate from his client, to appeal an order which imposes a ¶19 Crawford is factually distinguishable monetary sanction against him/her personally.” from the instant case because Attorneys are not Cities Serv., 1999 OK 16 at ¶ 6, 976 P.2d at 547- indemnitors or insurers of Plaintiff’s case who 48. There are also instances when appellate have sustained direct injury as a result of a standing has been extended to an attorney court adjudication through casualty or misfor- when challenging court-imposed monetary tune not of their making. Attorneys’ alleged sanctions against the attorney, and when chal- “stake” in the outcome of the previous litiga- lenging a trial court’s decision on the amount of tion is speculative and based only on “some attorney fees allowed. See Vickers v. Boyd, 1992 possible remote consequence.” It is not con- OK 42, 836 P.2d 1269 (the attorney was deter- crete, actual, or imminent. mined to have standing after $4,000 in attorney ¶20 We find additional support for distin- fees were imposed upon him as sanctions);2 Tis- guishing the facts in Crawford from those in the dale v. Wheeler Bros. Grain Co., Inc., 1979 OK 94, instant case in the Supreme Court’s discourse 599 P.2d 1104 (attorney had standing to appeal in Crawford that an insurer who suffers a loss trial court’s order reducing the amount of attor- (from a default judgment) caused by its own ney fees agreed to by the parties). In both negligence in defending its insured will not be instances, unlike the Attorneys’ claimed interest granted relief from that loss. “[O]ne who is in the instant case, the injury was concrete, par- negligent will not be allowed relief from a ticularized, actual and imminent. default judgment . . . .” Id. at ¶ 10, 642 P.2d at CONCLUSION 250. The insurer in Crawford was found to have standing to seek relief from a default judgment ¶23 Attorneys fail to meet the first require- because it was directly affected by the judg- ment of standing, that of a legally protected ment and had “’equities entitled to be protect- interest, and therefore lack standing to bring ed from [the judgment’s] operation’” and this appeal. Because Attorneys lack standing, because the judgment as to the insurer’s inter- this Court has no jurisdiction to consider the ests resulted from an “unavoidable casualty or merits of this appeal. Based on the foregoing, misfortune, preventing [one] from prosecuting we will not address whether Attorneys had or defending” as provided in 12 O.S. § 1031(7). standing in the trial court to file a motion to Id. at ¶¶ 7, 16, 642 P.2d at 250-51 (quoted cita- vacate without Plaintiff’s consent, nor will we tion omitted). Neither is the case here. We con- consider whether grounds exist to vacate the

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2463 trial court’s order dismissing the case without against Janis Tech related to that subject, and the prejudice. judgment of the district court is affirmed. ¶24 DISMISSED. BACKGROUND FISCHER, V.C.J., and BARNES, P.J., concur. ¶2 Sorrels is the daughter and one of three children of Fred Tech, who died in 2003. Janis 1. It should be noted at the outset that Attorneys have designated and Fred Tech were married at the time of his Plaintiff as the appellant without Plaintiff’s permission or participation as discussed more fully in this Opinion. Attorneys have not sought death. Pursuant to the Fred Tech Trust, Sorrels status as intervenors to press their claim for relief, nor have they des- is the distributee of approximately 140 acres ignated themselves as appellants in the case caption, the petition in error, or any filing in this appeal. See footnote 2, infra. and improvements thereon previously owned 2. We would note Justice Opala’s dissent in this case in which he by her father, the SW ¼ of Section 8, Township states: “I would dismiss the petition in error as utterly inefficacious for the commencement of [attorney’s] appeal. Neither the caption nor the body of 14 North, Range 9 West, in Canadian County, the petition designates this lawyer as a party appellant herein. The omission Oklahoma (the Property). However, paragraph constitutes a fatal jurisdictional defect. No less authority than our nation’s highest tribunal is unequivocally committed to this mechani- 4.1 of the trust instrument provided that not cal norm of adjective law.” Vickers v. Boyd, 1992 OK 42, 836 P.2d 1269 more than five acres of the Property, including (Opala, J., dissenting). Fred Tech’s former residence, would be subject 2011 OK CIV APP 107 to Janis Tech’s “rights to occupy such residence” and “to continue to reside in such residence so SHERRY LEE SORRELS, Plaintiff/Appellant, long as she desires, provided, she shall be vs. GARY FRED TECH, Individually and as responsible for the expenses of normal upkeep Trustee of the AMENDED AND RESTATED and maintenance of the residence” until her FRED TECH TRUST, JANIS TECH and THE abandonment of the residence or death. The UNKNOWN HEIRS, EXECUTORS, same paragraph allocated payment of the ad DEVISEES, TRUSTEES, PERSONAL valorem taxes on the Property to Sorrels. REPRESENTATIVES, ASSIGNS AND SUCCESSORS OF JANIS TECH AND FRED ¶3 From the record, it appears that there was TECH, Defendants/Appellees. controversy involved in settling Fred Tech’s estate and distributing the property subject to Case No. 108,624. June 3, 2011 the Fred Tech Trust. Primarily, this controversy APPEAL FROM THE DISTRICT COURT OF appears to have involved Sorrels and her two CANADIAN COUNTY, OKLAHOMA brothers, each of whom also received a distri- bution of real property pursuant to the Trust. HONORABLE GARY E. MILLER, During this controversy, the trustee executed a TRIAL JUDGE quit claim deed in favor of Janis Tech convey- AFFIRMED ing her interest in the residence. The parties to the deed were the trustee on behalf of the Trust R. Stephen Haynes, LAW OFFICES OF R. STE- and Janis Tech. That deed provided that on her PHEN HAYNES, P.C., Oklahoma City, Okla- death or abandonment of the residence, all of homa, for Plaintiff/Appellant Janis Tech’s rights in the Property would termi- Robert W. Nelson, Chad E. Ihrig, NELSON, nate and that Sorrels would then “hold and own ROSELIUS, TERRY & MORTON, Oklahoma such property free and clear of any claim to use City, Oklahoma, for Defendants/Appellees or benefit thereof” by Janis Tech. The deed also contains the following language: “Party of the JOHN F. FISCHER, VICE CHIEF JUDGE: Second Part [Janis Tech] during the time she ¶1 Plaintiff Sherry Lee Sorrels appeals the dis- occupies and uses said premises shall be respon- trict court’s order granting defendant Janis sible for the expense of normal upkeep and Tech’s1 motion for summary judgment. The maintenance of the residence, however, the dis- appeal has been assigned to the accelerated tributee [Sorrels] . . . shall be responsible for pay- docket pursuant to Oklahoma Supreme Court ment of ad valorem taxes on the property with Rule 1.36(b), 12 O.S. Supp. 2009, ch. 15, app. 1, the Party of the Second Part and the distributee and the matter stands submitted without appel- to each be responsible for insuring their respec- late briefing. Because it is undisputed that Sor- tive interest in the premises and the improve- rels signed an agreement assuming responsibil- ments thereon.” The deed is dated July 23, 2003, ity for obtaining insurance coverage on certain and was recorded with the Canadian County real property, she cannot maintain an action Clerk two days later.

2464 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 ¶4 Ultimately, the parties were able to resolve 1. Pursuant to the Fred Tech Trust, Sorrels their differences and executed an Agreement became the owner of the Property sub- dated May 19, 2004. The Agreement incorpo- ject to Janis Tech’s right to occupy the rated the terms of the quit claim deed. Sorrels, residence until her death or abandon- her two brothers and Janis Tech are the signa- ment of the residence on the death of tories to the Agreement, which recites that its Fred Tech. purpose is to memorialize these parties’ agree- ment “with respect to distribution of assets of 2. Fred Tech died on March 13, 2003. the Fred Tech Trust and termination (winding 3. On July 23, 2003, the trustee of the Fred up of the affairs) of said Trust.” Ten days later, Tech Trust executed a quit claim deed a tornado destroyed the residence. conveying to Janis Tech her interest in ¶5 During the time that she occupied the the Property pursuant to the terms of the residence, Janis Tech maintained the insurance Trust. policy in effect at Fred Tech’s death. The pro- 4. The quit claim deed was properly record- ceeds of the insurance policy in effect at the ed with the Canadian County Clerk on time the residence was destroyed were paid to July 25, 2003. Janis Tech. Subsequent to the May 29 tornado, Janis Tech abandoned the residence and dis- 5. The quit claim deed provided that Janis claimed any further interest in the Property. Tech and Sorrels would “each be respon- Sorrels maintained a successful action to quiet sible for insuring their respective interest title to the Property distributed to her pursuant in the [Property] and the improvements to the Fred Tech Trust.2 In that action, Sorrels thereon.” also sought to recover the insurance proceeds paid to Janis Tech and the difference between 6. After various disputes regarding distri- that amount and the actual value of the resi- bution of the Trust assets, Janis Tech, Sor- dence and related buildings. As to this claim, rels and the other Trust distributees Janis Tech filed a motion for summary judg- signed an Agreement dated May 19, ment. The order sustaining that motion is the 2004, providing for the distribution of subject of this appeal. Trust assets. STANDARD OF REVIEW 7. The Agreement incorporated the terms and conditions of the quit claim deed. ¶6 Rule 13 of the Rules for District Courts of Oklahoma, 12 O.S. Supp. 2009, ch. 2, app., gov- 8. The Agreement distributed the Property erns the procedure for summary judgment in to Sorrels “subject to the terms and con- the district court. We review the district court’s ditions of Section 4.1 . . . of the Fred Tech grant of summary judgment de novo. Carmichael Trust, and all provisions of the Quit v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Claim Deed” to Janis Tech. On review, we examine the pleadings and evi- 9. One term of the quit claim deed required dentiary materials submitted by the parties to determine whether there exists a genuine issue Sorrels to be responsible for insuring her of material fact. Id. This Court bears “an affir- interest in the “premises and the improve- mative duty to test all evidentiary material ments” covered by the deed. tendered in summary process for its legal suf- 10. Janis Tech maintained an insurance ficiency to support the relief sought by the policy on the residence covered by the movant.” Copeland v. The Lodge Enters., Inc., quit claim deed. 2000 OK 36, ¶ 8, 4 P.3d 695, 699. “Only if the court should conclude that there is no material 11. Sorrels did not insure her interest in the fact in dispute and the law favors the movant’s Property. claim or liability-defeating defense is the mov- 12. The residence and related buildings ing party entitled to summary judgment in its located on the Property were destroyed favor.” Id. by a tornado on May 29, 2004. ANALYSIS 13. Janis Tech did not represent to Sorrels ¶7 The summary judgment pleadings estab- that she had obtained full coverage lish the following undisputed facts material to insurance on the residence and related Janis Tech’s motion for summary judgment: buildings.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2465 I. The Quit Claim Deed Tech’s life estate. “When a future estate, other than a reversion, is dependent on a precedent ¶8 First, Sorrels argues that Janis Tech estate, it may be called a remainder, and may acquired no estate in the Property but only a be created and transferred by that name.” 60 personal right to occupy the Property until she O.S.2001 § 30. The holder of a remainder inter- died or abandoned that right. Kemp v. Turnbull, est does not have a right to possession until 1946 OK 277, 174 P.2d 384, relied on by Sorrels termination of the precedent estate. Beatty v. for this argument, discussed a “probate home- Miley, 1951 OK 184, ¶ 36, 233 P.2d 269, 275. See stead” created by operation of law pursuant to statute. The statute provides: “Upon the death 60 O.S.2001 § 28 (“A future estate may be lim- of either husband or wife, the survivor may ited by the act of the party to commence in continue to possess and occupy the whole possession . . . on the termination . . . of a prec- homestead . . . .” 58 O.S.2001 § 311. The Court edent estate, created at the same time.”). held that a probate homestead was not an However, because Sorrels had a right to imme- estate in land and was not alienable, unlike a diate possession on termination of Janis Tech’s life estate devised to a surviving spouse by life estate, Sorrels did have a vested and insur- will. The Court also distinguished the probate able interest in the Property. estate from the life estate devised to the wife Where a party holds land by deed reserving pursuant to her husband’s will. Here we deal a life estate in grantors, he has an insurable with the latter, and Kemp is not dispositive.3 interest on improvements thereon, and ¶9 As a matter of real property law, Janis Tech insures against loss by fire, paying premium acquired a life estate pursuant to paragraph 4.1 from his own funds, and loss occurs, in the of the Trust. See Lohmann v. Adams, 1975 OK 86, absence of a contrary agreement, he is enti- 540 P.2d 552 (conveyance to father for his natural tled to the proceeds of such insurance . . . . life with the remainder to his sons created a Girdner v. Girdner, 1959 OK 50, ¶ 0, 337 P.2d 741, valid life estate in the father and a valid remain- 742 (Syllabus 1) (holding that the owner of a der interest in the sons). Janis Tech’s life estate remainder subject to a life estate was entitled to was subject to forfeiture if she abandoned or insurance proceeds from a policy for which he chose not to occupy the Property. See Berry v. paid when fire destroyed a building on the Cooley, 1940 OK 473, ¶ 33, 109 P.2d 1081, 1086 property). (finding valid a provision granting wife a life estate so long as she did not remarry). This type ¶11 Sorrels’ argument that she did not have of forfeiture provision was distinguished from a an insurable interest in the property is contrary “disabling restraint” in Lohmann. 1975 OK 86, ¶¶ to law. Further, in this case, not only is there an 22-23, 540 P.2d at 555. There, the Court held that “absence of a contrary agreement,” but also disabling restraints contained in instruments there is an express agreement that Sorrels will creating a life estate and remainder were invalid be responsible for insuring her interest in the as impermissibly preventing alienation of a free- Property. Although Sorrels advances several hold estate. The Court did not decide whether arguments in an attempt to avoid the conse- forfeiture restraints were likewise invalid quences of these facts, it is clear that Sorrels because: “In any given case consideration would undertook the responsibility for insuring her have to be given to the justifications for the interest in the Property. restraint and the nature of the estate restrained.” ¶12 First, even though she was not a party to Id. ¶ 40, 540 P.2d at 557. No Oklahoma case has the quit claim deed, Sorrels was charged with addressed the validity of a conditional limitation knowledge of its contents after it was recorded. on a life estate requiring occupancy of the estate. See 16 O.S.2001 § 15 (Conveyances) (“[N]o However, other jurisdictions have enforced such deed, mortgage, contract, bond, lease, or other provisions. See Bradford v. Culbreth, 18 A.2d 143 instrument relating to real estate . . . shall be (Del. 1941); Conger v. Lowe, 24 N.E. 889 (Ind. valid as against third persons unless acknowl- 1890); Lowe v. Cloud, 45 Ga. 481 (Ga. 1872). We edged and recorded as herein provided.”). find that a provision limiting a life estate to a “Every conveyance of real property acknowl- period of time while occupied by the life tenant edged or approved, certified and recorded as is valid, enforceable and conveys a freehold prescribed by law from the time it is filed with estate.4 the register of deeds for record is constructive ¶10 Sorrels derived from the Trust a remain- notice of the contents thereof to subsequent der interest in the Property subject to Janis purchasers, mortgagees, encumbrancers or

2466 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 creditors.” 16 O.S.2001 § 16. Sorrels acquired II. The Agreement her interest in the Property after the deed to ¶14 Sorrels was required to insure her inter- Janis Tech. “When a remainder on an estate for est in the Property not only by operation of life . . . is not limited on a contingency defeat- law, but also because she specifically agreed to ing or avoiding such precedent estate, it is to be do so. The May 19 Agreement memorializes deemed intended to take effect only on the Sorrels’ agreement with the other three benefi- death of the first taker . . . .” 60 O.S.2001 § 42. ciaries of the Fred Tech Trust regarding distri- Sorrels’ remainder interest may have vested at bution of the Trust assets. Paragraph 4 of the Fred Tech’s death, but she had no right to pos- Agreement states that Janis Tech’s interest in session of the Property until termination of the the Property has already been distributed to life estate. Consequently, Sorrels was charged her pursuant to the quit claim deed, and spe- with constructive knowledge of the terms of cifically incorporates the terms and conditions the quit claim deed. of the quit claim deed. One provision of the ¶13 In this case, not only did Sorrels have quit claim deed states that Janis Tech and Sor- constructive knowledge of the terms of the quit rels will “each be responsible for insuring their claim deed, but also she had actual knowledge respective interest” in the Property. Paragraph as well. In paragraph 4 of the May 19 Agree- 8 of the Agreement distributes to Sorrels her ment, Sorrels acknowledged that she had remainder interest in the Property “subject to received a copy of the quit claim deed. Further, the terms and conditions of Section 4.1 . . . of Janis Tech’s interest, as described in the quit the Fred Tech Trust, and all provisions of said claim deed, was not burdened by the custom- Quit Claim Deed.” Although Sorrels asserted ary obligation of a life tenant to pay taxes on in her summary judgment response that “the the property. See Helm v. Belvin, 1924 OK 628, quit claim deed of July 15, 2003, does not state ¶ 0, 232 P. 382, 382; 60 O.S.2001 § 69 (“The that [Sorrels] will provide insurance on the owner of a life estate must keep the buildings subject property,” that assertion is true only to and fences in repair from ordinary waste, and the extent that the quit claim deed does not must pay the taxes and other annual charges, require Sorrels to insure Janis Tech’s interest, and a just proportion of extraordinary assess- and it leaves to Sorrels the choice of whether to ments benefiting the whole inheritance.”). Pur- insure her own interest. Either interpretation suant to the terms of the Trust, Sorrels was fails to advance Sorrels’ argument that Janis required to pay the ad valorem taxes, and that Tech was required to insure Sorrels’ remainder is reflected in the language of the deed. Like- interest in the Property. Consequently, Sorrels wise, the quit claim deed clearly provides that has failed to establish any material factual dis- Janis Tech was not responsible for insuring Sor- pute regarding the terms of the Agreement or rels’ interest in the Property. Title 16 O.S.2001 § the requirement that she insure her interest in 53(A) provides: the Property. A recorded signed document relating to III. Sorrels’ Arguments title to real estate creates a rebuttable pre- ¶15 To avoid the express language of the sumption with respect to the title that: Agreement and quit claim deed, Sorrels makes . . . . two arguments: (1) the parties agreed Janis Tech would insure Sorrels’ interest in the Prop- 10. Recitals and other statements of fact in a erty; and (2) Sorrels’ acceptance of the terms of conveyance are true if the matter stated was the Agreement was subject to and reserved her relevant to the purpose of the document . . . . claim for insurance and damages. To support There is no evidence in this record to show that these arguments, Sorrels relies on a series of Sorrels objected to the insurance provision or letters between her counsel and attorney James sought a correction deed requiring Janis Tech to Bass.6 Sorrels’ counsel wrote to Bass on Febru- insure Sorrels’ remainder interest.5 Therefore, ary 17, 2004, regarding various issues, includ- Sorrels is bound by the terms of the quit claim ing insurance. deed including the provision requiring her to In regard to the Fred Tech homestead, a insure her separate interest in the Property. surveyed designation should be made of the five acres in which Janis Tech will have a life estate. Further, clarification needs to be made regarding the identification, care,

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2467 maintenance and insuring of the improve- that an adequate policy of replacement insur- ments thereon. No provision is made for ance was in effect on the property with Plaintiff the insuring of the house, barns, grain bins as the designated loss-payee.” We have and other out buildings nor have the reviewed the record and find that it does not improvements been adequately described. support these contentions. We believe that the insuring of the property constitutes normal upkeep and mainte- ¶17 First, material fact number 13 in Janis nance of the property and Sherry Sorrels Tech’s motion for summary judgment states should be made the loss-payee on such she never represented to Sorrels that she policy. If the residence is destroyed or sub- obtained full coverage insurance. This stands stantially damaged, Sherry should be under unrefuted. no obligation to rebuild. In the statement, the adverse party or par- Paragraph 5 of attorney Bass’s response on ties shall set forth and number each spe- February 20, 2004, states: cific material fact which is claimed to be in controversy and reference shall be made to I believe that the general law in Oklahoma the pages and paragraphs or lines of the requires a life tenant (or a term tenant) evidentiary materials. All material facts set maintain the property in a reasonable con- forth in the statement of the movant which dition during the term of such tenancy, and are supported by acceptable evidentiary that in addition the life tenant (or term ten- material shall be deemed admitted for the ant) must during such term of occupancy purpose of summary judgment or summa- and use maintain adequate fire and extend- ry disposition unless specifically contro- ed coverage insurance with respect to the verted by the statement of the adverse improvements, and pay ad valorem taxes party which is supported by acceptable becoming due with respect to such prop- evidentiary material. erty during the term. The remainderman should be named a loss-payee with respect Okla. Dist. Ct. R. 13(b), 12 O.S. Supp. 2009, ch. to the fire and extended coverage insur- 2, app. There is no reference to material fact ance, however, in the event of a loss the number 13 in Sorrels’ summary judgment insurance proceeds shall be applied to response, and Tech supported this statement replacement/rebuilding/repairing, but with “acceptable evidentiary material” as neither the remainderman or term tenant is required by Rule 13(b). Further, the depositions required to contribute additional funds for of Sorrels and her husband Mark Sorrels con- the purpose of rebuilding, replacing or firm that Janis Tech never made any represen- repairing. tations to them regarding insurance. Those depositions also confirm the assertion in attor- In her counsel’s letter dated March 5, 2004, ney Bass’s affidavit that he did not represent Sorrels indicated her agreement with attorney Janis Tech during these proceedings. Bass’s “position and proposal in Paragraph 5” of the February 20 letter. A letter dated June 16, ¶18 Second, attorney Bass’s February 20 let- 2004, from Sorrels’ counsel purports to trans- ter does not provide any basis from which to mit an original of the Agreement signed by conclude that the “parties agreed that Janis Sorrels, but no enclosure is included in the Tech would provide adequate replacement record. The letter states: “Enclosed is the signed value insurance.” It is clear that letter was original of the Agreement resolving the estate intended to summarize Bass’s understanding distribution. As we previously discussed, the of general Oklahoma law. The deposition of agreement to resolve the estate does not effect Mark Sorrels confirms that he understood the [sic] any claim or right that may now exist as a letter to be nothing more than that. result of the storm loss.” Q. And with respect to Jim Bass’ [sic] state- ¶16 On the basis of this correspondence, Sor- ment, he was telling you what he thought rels maintains that the “parties agreed that the law in Oklahoma was; right? Janis Tech would provide adequate replace- A. Right. ment value insurance on the subject property and that Plaintiff [Sorrels] would be the loss- And, as previously discussed, in the absence of payee on such policy.” Sorrels also contends an agreement to the contrary, general Oklaho- that Janis Tech “represented through counsel ma law may have required Janis Tech to pay

2468 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 the ad valorem taxes on the Property, but the 1. The district court’s Journal Entry of Judgment lists “Janis” Tech as a party defendant. We note that other documents of record spell her Trust instrument specifically allocated that name “Janice” Tech. We will use the first name Janis. responsibility to Sorrels. More importantly, 2. That suit also named one of Sorrels’ brothers, who was the trustee of the Fred Tech Trust, and involved other claims not relevant without any authority to represent Janis Tech, to the disposition of this appeal. Bass could not agree to obligate her to provide 3. Further, there is nothing in this record to show that the Property was the homestead of Fred and Janis Tech or, if it was, why Janis Tech insurance on the Property. As a result, there is would be limited to only five acres of the homestead rather than her nothing in this record to contradict the terms of statutory right to occupy the entire 160 acres on which the Property was located. the quit claim deed, as incorporated into the 4. Estates for life are freehold estates. 60 O.S.2001 § 26. 7 Agreement, requiring Sorrels to insure her 5. We recognize, as discussed in Part III of this Opinion, that Sor- rels’ counsel pursued the insurance issue and communicated with interest in the property. counsel for the trustee on several occasions regarding this issue. In none of that correspondence, however, is there any reference to the ¶19 Likewise, Sorrels’ contention that she insurance provision in the quit claim deed or any request to issue a preserved some claim for storm loss despite corrected deed reflecting that Janis Tech was required to insure Sorrels’ interest in the Property. signing the Agreement must fail, at least as to 6. The record does not fully establish the extent of Mr. Bass’s rep- Janis Tech. Assuming Sorrels signed the Agree- resentation other than to show that he did represent the trustee in these ment after the storm damage to the Property matters and did not represent Janis Tech. occurred, she was in a position to provide for 2011 OK CIV APP 108 the distribution of insurance proceeds in that BURL KENNEDY, BRENDA KENNEDY, Agreement. She did not. The Agreement memo- CODY SHORES, BURL COLTON rializes Sorrels’ agreement “with respect to KENNEDY and JOY KENNEDY, Plaintiffs/ distribution of assets of the Fred Tech Trust and Appellants, vs. CITY OF TALIHINA, and termination (winding up of the affairs) of said TALIHINA PUBLIC WORKS AUTHORITY, Trust.” “When a contract is reduced to writing, Defendants/Appellees. the intention of the parties is to be ascertained from the writing alone, if possible, subject, Case No. 108,778. August 10, 2011 however, to the other provisions of this article.” APPEAL FROM THE DISTRICT COURT OF 15 O.S.2001 § 155. Sorrels does not point to any LEFLORE COUNTY, OKLAHOMA other provision of Title 15 that would preserve any claim against Janis Tech not contained in HONORABLE TED A. KNIGHT, the Agreement. Further, even if the letter of TRIAL JUDGE Sorrels’ counsel, dated June 16, 2004, reserves AFFIRMED IN PART, REVERSED IN PART some claim for storm loss, that letter is not AND REMANDED FOR FURTHER addressed to Janis Tech, the letter does not PROCEEDINGS reflect that a copy was sent to Janis Tech, and there is nothing in the record to show that Janis Eric Grantham, STIPE, HARPER LAW FIRM, Tech agreed to any reservation of claims against McAlester, Oklahoma, for Plaintiffs/Appellants her not stated in the terms of the Agreement. Charles B. Sullivan, Sean M. McKelvey, CONCLUSION STEIDLEY & NEAL, P.L.L.C., McAlester, Okla- homa, for Defendants/Appellees ¶20 Sorrels derived from the Trust a remain- der interest in the Property subject to Janis JOHN F. FISCHER, VICE-CHIEF JUDGE: Tech’s life estate, and had a vested and insur- ¶1 Burl Kennedy, Brenda Kennedy, Cody able interest in the Property. Pursuant to the Shores, Burl Colton Kennedy and Joy Kennedy parties’ Agreement and attached quit claim appeal the dismissal of their petition against deed, Sorrels was responsible for insuring her the Town of Talihina and the Talihina Public interest in the Property. There is no record sup- Works Authority (collectively, the Town). The port for Sorrels’ contention that Janis Tech appeal has been assigned to the accelerated would provide replacement value insurance docket pursuant to Oklahoma Supreme Court on the Property, name her as loss-payee, or Rule 1.36(b), 12 O.S. Supp. 2010, ch. 15, app. 1, agreed to a reservation of claim for storm loss. and the matter stands submitted without appel- We affirm the district court’s order granting late briefing. We affirm the district court’s summary judgment to Janis Tech. order dismissing the Kennedys’ property dam- age claim because it was not timely filed. How- ¶21 AFFIRMED. ever, because the petition states a claim for BARNES, P.J., and WISEMAN, J., concur. personal injuries and other damages distinct

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2469 from property damage, we reverse the order of converting the motion to one for summary dismissal in that respect and remand for fur- judgment, if the motion challenges the court’s ther proceedings. jurisdiction. Visteon Corp. v. Yazel, 2004 OK CIV APP 52, ¶¶ 20-21, 91 P.3d 690, 694. The Town’s BACKGROUND motion to dismiss argued that the applicable ¶2 The Kennedys’ amended petition alleges limitation period barred the Kennedys’ claim. that on November 10, 2008, raw sewage backed “[C]ompliance with the written notice of claim into their home through the Town’s sewer line. and denial of claim provisions in §§ 156 and The petition sets forth three theories of recov- 157 [of the Oklahoma Governmental Tort ery: negligence, trespass and nuisance.1 On Claims Act] are prerequisites to the state’s con- November 14, 2008, a Notice of Tort Claim was sent to be sued and to the exercise of judicial filed with the Town clerk claiming damage to power to remedy the alleged tortious wrong by property located at 310 Sequoyah Street in Tali- the government.” Shanbour v. Hollingsworth, hina as a result of the November 10 incident. 1996 OK 67, ¶ 7, 918 P.2d 73, 75. “[J]udicial No dollar amount of alleged damage is pro- power is invoked by the timely filing of the vided. The Notice is signed by Burl Kennedy governmental tort claims action pursuant to and he is the only claimant identified on the § 157, and . . . expiration of the 180-day time form. The Notice utilizes what appears to be a period in § 157(B) operates to bar judicial form provided by Oklahoma Municipal Assur- enforcement of the claim against the govern- ance Group (OMAG). The Town did not ment to which the Legislature waived sover- respond to this Notice. On November 7, 2009, a eign immunity.” Id. Consequently, we review second Notice of Tort Claim on the same the Town’s motion to dismiss de novo to deter- OMAG form was filed related to the Novem- mine whether the petition is legally sufficient. ber 2008 incident and the property located at Indiana Nat’l Bank v. Dep’t of Human Servs., 1994 310 Sequoyah Street This Notice identifies all OK 98, ¶ 2, 880 P.2d 371, 375. The same stan- five Kennedys as claimants and alleges bodily dard of review applies with respect to the con- injury from exposure to gases and sewage. struction of statutes necessary to determine the Although no information is provided in the legal sufficiency of the petition. Wilhoit v. State, “Property Damage” portion of the form, the 2009 OK 83, ¶ 6, 226 P.3d 682, 684-85. form provides: “Continue on another sheet if DISCUSSION needed for any information requested.” Attached to the second Notice is a narrative ¶5 The Kennedys’ petition asserts a tort describing the Kennedys’ efforts to stop the claim against the Town for the property dam- sewage backup, claiming that they were forced age to their home and for personal injuries to vacate their home for ten days and itemizing allegedly received by the five members of the the personal injury and property damage that family. The viability of these claims is deter- allegedly resulted from the November 10, 2008 mined by the provisions of the Oklahoma Gov- incident (house: $141,420.00; carpet: $3,712.34; ernmental Tort Claims Act (GTCA), 51 O.S. duct cleaning: $354.00; construction: $723.05; Supp. 2010 §§ 151 to 172. “The state, its political storage: $200.00; ten days out of house: subdivisions, and all of their employees acting $1,370.00; extra gas and electric: $200.00; labor: within the scope of their employment, whether $2,200.00; medical tests: $5,813.70). The Town performing governmental or proprietary func- did not respond to this Notice either. tions, shall be immune from liability for torts.” 51 O.S.2001 § 152.1(A). However, in certain ¶3 On April 14, 2010, the Kennedys filed suit circumstances, the State has waived its sover- against the Town. The Town filed a motion to eign immunity. dismiss arguing the suit was time barred. The district court granted the Town’s motion and The state or a political subdivision shall be the Kennedys appeal. liable for loss resulting from its torts . . . subject to the limitations and exceptions STANDARD OF REVIEW specified in this act and only where the state or political subdivision, if a private ¶4 The Town’s motion to dismiss and the person or entity, would be liable for money Kennedys’ reply included evidentiary materi- damages under the laws of this state. als beyond the pleadings. This Court has held that a trial court may review evidentiary mate- The liability of the state or political subdi- rial attached to a motion to dismiss, without vision under this act shall be exclusive and

2470 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 in place of all other liability of the state, a tion after demand by the state or political political subdivision or employee at com- subdivision. mon law or otherwise. 51 O.S. Supp. 2010 § 156(E).2 With respect to 51 O.S.2001 § 153(A), (B). The GTCA establishes any information necessary to the evaluation of a notice procedure by which governmental the Kennedys’ property damage claim, the entities are provided the opportunity to inves- Town was entitled but not required to request tigate and resolve claims prior to litigation. A additional information. See Bivins v. State ex rel. person who has a claim against a political sub- Oklahoma Mem’l Hosp., 1996 OK 5, ¶ 13, 917 division shall present the claim to the political P.2d 456, 462. The Town did not request any subdivision “within one (1) year of the date information. Consequently, we find that the the loss occurs. A claim against . . . a political first Notice satisfied the requirements of sec- subdivision shall be forever barred unless tion 156. notice thereof is presented within one (1) year after the loss occurs.” 51 O.S. Supp. 2010 ¶7 The first Notice was filed November 14, § 156(B). “A person may not initiate a suit 2008, and sought recovery for property dam- against the state or a political subdivision age only. That claim was deemed denied ninety unless the claim has been denied in whole or days later on February 12, 2009, when the in part.” 51 O.S.2001 § 157(A). Town did not respond. See 51 O.S.2001 § 157(A) (“A claim is deemed denied if the state or I. The First Notice political subdivision fails to approve the claim ¶6 Section 156 of the GTCA provides that in its entirety within ninety (90) days.”). Suit on persons having a claim against a governmental the first Notice was required to be filed within entity “shall present” the claim to the entity. one hundred and eighty days thereafter. See 51 The claim must be in writing and filed with the O.S.2001 § 157(B) (“No action for any cause appropriate office. The issue in this appeal is arising under [the GTCA] shall be maintained the effect of each of the two notices filed by the unless valid notice has been given and the Kennedys. The only provision of the GTCA action is commenced within one hundred dealing with the form of the notice of a claim is eighty (180) days after denial of the claim as set section 156(E): forth in this section.”). Although filed within one year of the incident as required by section The written notice of claim . . . shall state 156(B), the Kennedys’ suit, filed April 14, 2010, the date, time, place and circumstances of the claim, the identity of the state agency or was filed beyond the time period permitted by agencies involved, the amount of compen- section 157(B) as measured from the date the sation or other relief demanded, the name, first Notice was deemed denied. address and telephone number of the ¶8 The Kennedys argue that their suit is not claimant, the name, address and telephone barred because the first Notice, signed by Burl number of any agent authorized to settle Kennedy alone, did not list the names of all the claim . . . . claimants and did not make a claim for the 51 O.S. Supp. 2010 § 156(E). The first Notice personal injuries they allegedly suffered. The provides all of this information with respect to Town argues that all of the Kennedys were damage to the Kennedys’ property except the “claimants” with respect to the first Notice. amount of the compensation claimed. Howev- The purpose of the statutory definition of er, substantial compliance with the notice ‘claimant’ is clear. It defines the class of requirements of the Act is satisfactory as long persons who may initiate a tort claim as enough information is provided to fulfill the against a governmental agency under the purposes of those requirements. Mansell v. City Act. It is equally clear that a spouse of an of Lawton, 1995 OK 81, ¶ 9, 901 P.2d 826, 830. injured person is not within the class of per- Failure to state either the date, time, place sons authorized to initiate a claim under the and circumstances and amount of compen- Act. Instead, under [§ 152(5)(b)], the claim- sation demanded, or any information ant shall aggregate in his/her claim the requested to comply with the reporting losses of all other persons which are deriva- claims to CMS under MMSEA shall not tive of his/her loss; and, under § 154(C), the invalidate the notice unless the claimant aggregate losses claimed by a claimant are declines or refuses to furnish such informa- subject to the liability limitations upon a

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2471 single claimant arising out of a single personal injury claims. Each Kennedy first occurrence. filed a Notice of personal injury claims on November 7, 2009, and suit was timely filed Walker v. City of Moore, 1992 OK 112, ¶ 8, 836 after these claims were deemed denied. Also P.2d 1289, 1292 (superseded by statute as stated included for the first time in the second Notice in Minie v. Hudson, 1997 OK 26, 934 P.2d 1082). was a claim for other damages not directly Clearly, Burl Kennedy was entitled to file a related to any depreciated value of or cost of claim with respect to the real property damage repairing the Kennedys’ home. For example, to his home and any related personal property the second Notice claims $1,370.00 for the cost damage. That claim was sufficient to include all of living outside the home for ten days. It is property damage incurred by any of the Kenne- “clear that damages for inconvenience, annoy- dys derivative of the property damage claimed ance, and discomfort are injuries to the person by Burl.3 See 51 O.S. Supp. 2010 § 152(5)(a). A and not to property,” and these damages “are claimant is a person or authorized representa- separate, distinct, and independent [from dam- tive of a person: ages for depreciation of rental value of prop- holding an interest in real or personal erty] elements of damage.” Truelock v. City of property which suffers a loss, provided Del City, 1998 OK 64, ¶¶ 10-11, 967 P.2d 1183, that the claim of the person shall be aggre- 1187 (citing Oklahoma City v. Eylar, 1936 OK gated with claims of all other persons hold- 614, ¶ 11, 61 P.2d 649, 651; Oklahoma City v. ing an interest in the property and the Tytenicz, 1935 OK 433, ¶¶ 8-9, 43 P.2d 747, 748- claims of all other persons which are deriv- 49). See City of New Cordell v. Lowe, 1963 OK 265, ative of the loss, and that multiple claim- 389 P.2d 103; Town of Braggs v. Slape, 1952 OK ants shall be considered a single claimant. 396, 250 P.2d 214; City of Holdenville v. Kiser, 1937 OK 29, 64 P.2d 1223. Id. Because the Kennedys did not file suit with respect to their property damage claim prior to ¶10 The text of the GTCA contemplates that August 11, 2009, that is, within one hundred a claimant may have more than one claim for and eighty days after their property damage damages based on a single occurrence. For claim was deemed denied, suit against the example, section 154(A)(1) limits the govern- Town for the Kennedys’ property damage is ment’s liability to twenty-five thousand dollars barred. See Shanbour v. Hollingsworth, 1996 OK “for any claim or to any claimant who has 67, ¶ 7, 918 P.2d 73, 75; Strong v. Oklahoma City more than one claim for loss of property aris- Pub. Schs., 1997 OK CIV APP 21, ¶ 7, 941 P.2d ing out of a single act, accident, or occurrence.” 538, 541; Grider v. Indep. Sch. Dist. No. 89, 1994 Presumably, this provision is intended to limit OK CIV APP 34, ¶ 5, 872 P.2d 951, 952. The a single claimant’s personal property claim district court correctly granted the Town’s and real property claim to the twenty-five motion with respect to the Kennedys’ property thousand dollar maximum authorized by the damage claim and that portion of the order statute. Section 154(A)(2) sets the limits of appealed is affirmed. recovery “for a claim for any other loss.” And, “damages for inconvenience, annoyance, and II. The Second Notice discomfort arising out of a nuisance claim are ¶9 However, suit was timely filed within one not damages for ‘any loss of property,’ but are hundred and eighty days from the date the damages ‘for any other loss’” pursuant to sec- second Notice was deemed denied. The issue tion 154(A)(2). Truelock, 1998 OK 64, ¶ 9, 967 dispositive of this appeal is whether suit based P.2d at 1187. Just as the text of the GTCA “nei- on the second Notice is precluded by failure to ther authorizes the government to seek nor timely file suit after denial of the first Notice. In prohibits it from inviting a needed amendment addition to the property damage to the Ken- of the claim’s notice,” Bivins v. State ex rel. Okla- nedys’ home, the second Notice claims per- homa Mem’l Hosp., 1996 OK 5, ¶ 13, 917 P.2d at sonal injury in the amount of $6,000.00 alleg- 462, it neither authorizes nor prohibits a claim- edly incurred by the five Kennedys from expo- ant from filing separate notices of these claims. sure to raw sewage and sewer gas. As held in Although derivative claims are aggregated, see Walker, the personal injury claims are not deriv- 51 O.S. Supp. 2010 § 154(D), and total claims ative. See 1992 OK 112, ¶ 8, 836 P.2d at 1292. for all claimants are limited, see id. § 152(5)(a), Therefore, each Kennedy is a separate claimant (b), there is nothing in the language of the for purposes of section 156 with respect to the GTCA that prohibits a claimant authorized to

2472 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 file a claim from filing a separate notice of We reach this conclusion with respect to Burl claim for each separate type of compensable Kennedy’s claim for personal injury as well injury subject to these limitations. “It has long because the first Notice filed by him on the been recognized that remedial statutes should form provided by the Town clearly included be construed liberally so as to afford all the space for property damage claims and personal relief within the power of the court which the injury claims. Burl Kennedy did not claim any language of the act indicates the Legislature personal injury on that form. And, as we have intended to grant.” Wilhoit v. State, 2009 OK 83, construed the relevant statutes, he was not ¶ 13, 226 P.3d 682, 686. Therefore, except with required to do so. Like the other Kennedys, respect to a claim previously extinguished for Burl Kennedy’s personal injury claim was first failure to timely file suit,4 all that the GTCA asserted in the second Notice and suit was requires is that a claimant file notice of the timely filed after denial of that claim. claim within one year of the incident and file CONCLUSION suit within one hundred and eighty days after the claim is denied. ¶13 After a sewer backup in their home, the Kennedys filed two separate Notices of Tort ¶11 This construction is consistent with exist- Claim pursuant to the GTCA. The first Notice ing Oklahoma Supreme Court authority inter- claimed property damage only. The Kennedys preting the notice provisions of the Act. “The did not file suit within the time required by the object of the [notice] statute must be kept in GTCA with respect to that claim. However, suit mind, and it should not be given a construction was timely filed after the denial of the second which will defeat the ends of justice.” Reirdon v. Notice that asserted a claim for personal injury Wilburton Bd. of Educ., 1980 OK 67, ¶ 6, 611 P.2d and other non-property damages that were not 239, 241 (interpreting the predecessor statute to claimed in the first Notice. The Town moved to the GTCA). As long as they are timely, allow- dismiss the Kennedys’ suit and the district ing separate notices for the types of claims court granted that motion. With respect to the permitted by the GTCA will not defeat the pur- Kennedys’ claim for property damage, the dis- pose of the notice provisions of the Act. trict court’s order is affirmed. As to the second The purposes of the notice requirement are Notice, the Kennedys’ suit was timely filed and to further legitimate interests by promoting is not precluded by their failure to properly prompt investigation; by providing the pursue the property damage claim. The order opportunity to repair any dangerous con- dismissing the Kennedys’ suit with respect to dition and for speedy and amicable settle- their personal injury and other non-property ment of meritorious claims; and to allow damage claims is reversed and this case is the opportunity to prepare to meet possible remanded for further proceedings. fiscal liabilities. ¶14 AFFIRMED IN PART, REVERSED IN Conway v. Ohio Cas. Ins. Co., 1983 OK 83, ¶ 7, PART AND REMANDED FOR FURTHER 669 P.2d 766, 767. Cf. Vaughan v. City of Broken PROCEEDINGS. Arrow, 1999 OK 47, 981 P.2d 316 (holding that BARNES, P.J., and WISEMAN, J., concur. although the parties had settled the claimant’s property damage claim, they had agreed to 1. Although filed after the Town’s motion to dismiss, the Kenned- extend the section 157 time limits until all of ys’ amended petition was filed as a matter of right and related back to the date of the filing of the original petition. See 12 O.S.2001 § 2015(A), the claimant’s personal injury damages could (C)(2). Therefore, the order appealed dismissed the Kennedys’ amend- be determined). ed petition. 2. The statute was amended by Laws, HB 2890, ch. 365, § 1, eff. ¶12 Therefore, we find that the failure to November 1, 2010, after the Kennedys filed suit against the Town. Because the amendments did not affect the Kennedys’ claim in a mate- timely file suit after denial of the Notice of rial way, we cite to the current version of the statute for clarity. claim for “property damage” did not preclude 3. There is nothing in this record to show that any of the Kennedys had any individual property damage claim that was not derivative of the Kennedys from filing the second Notice the property damage claim filed by Burl Kennedy. claiming personal injuries and “other damag- 4. See Grider v. Indep. Sch. Dist. No. 89, 1994 OK CIV APP 34, 872 P.2d 951. es” not related to the property damage claim. 5. The Kennedys do not argue and we do not decide whether their Because the Kennedys timely filed suit based second Notice filed after the time for filing suit based on denial of the on their second Notice, it was error to grant the first Notice expired would have been effective to amend the first Notice. See Bivins v. State ex rel. Oklahoma Mem’l Hosp., 1996 OK 5, ¶ 13, Town’s motion to dismiss in this respect, except 917 P.2d 456, 462 (holding a governmental entity’s request for informa- to the extent the second Notice sought to reas- tion after filing a GTCA notice extended the time for filing suit and sert the Kennedys’ property damage claim.5 noting that “[p]ublic policy would generally favor amendments”). See

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2473 also 12 O.S.2001 § 2015 (regarding amendment of pleadings and pro- motion”. Claimant filed another settlement viding that leave to amend shall be freely given) (made applicable pursuant to 51 O.S.2001 § 164: “The laws and statutes of the State of conference request on February 25, 2010, fol- Oklahoma and the Rules of Civil Procedure, as promulgated and lowed by the filing on May 10, 2010, of a Form adopted by the Supreme Court of Oklahoma insofar as applicable and to the extent that such rules are not inconsistent with the provisions of 9 motion to set for trial. [the GTCA], shall apply to and govern all actions brought under the provisions of this act”). ¶3 On August 5, 2010, the trial court found Claimant “sustained 3 percent permanent par- 2011 OK CIV APP 109 tial disability to the LEFT LEG (over and above TYSON FOODS, INC., OWN RISK #12220, pre-existing 10%), for which claimant is enti- Petitioner, vs. DANNY RAY WATSON and tled to compensation for 8.25 weeks at $250.33 THE WORKERS’ COMPENSATION per week, or the total amount of $2,065.22 of COURT, Respondents, which 8.25 weeks have accrued and shall be Case No. 108,896. August 29, 2011 paid in a lump sum of $2,065.22.” The trial court also denied Employer’s “§ 43(b) defense.” PROCEEDING TO REVIEW AN ORDER OF Employer sought review of the award, assert- A THREE-JUDGE PANEL OF THE ing error in the denial of his limitations defense, WORKERS’ COMPENSATION COURT but a three-judge panel affirmed in an order HONORABLE KENT ELDRIDGE, entered on October 20, 2010. TRIAL JUDGE ¶4 Employer seeks review. VACATED AND REMANDED STANDARD OF REVIEW Michael Mancillas, MANCILLAS LAW OFFICE, ¶5 The issue presented, whether the Work- Oklahoma City, Oklahoma, for Petitioner ers’ Compensation Court correctly applied 85 Brandon J. Burton, T.R. Banks, BURTON & O.S. Supp. 2010 § 43(B) to these undisputed ASSOCIATES, PC, Oklahoma City, Oklahoma, facts, is a question of law. Arvinmeritor, Inc. v. for Respondents Redd, 2008 OK 72, ¶ 6, 192 P.3d 1261, 1262. Appellate review of questions of law is de novo. JANE P. WISEMAN, JUDGE: K-Mart Corp. v. Herring, 2008 OK 75, ¶ 2, 188 ¶1 Tyson Foods, Inc., Own Risk #12220 P.3d 140, 143. (Employer) seeks review of an order of a three- ANALYSIS judge panel of the Workers’ Compensation Court affirming an order of the trial court ¶6 Employer asserts Claimant did not take denying Employer’s statute of limitations positive action within the statutory three-year defense and awarding disability benefits to limitation period to achieve a final determina- Danny Ray Watson (Claimant). After review of tion of his case. Claimant contends that the the record and applicable law, we vacate the statute of limitations was tolled by a December order of the three-judge panel and remand for 22, 2009, miscellaneous order entered by the dismissal. trial court. Title 85 O.S. Supp. 2010 § 43(B) sets FACTS AND PROCEDURAL out the statute of limitations for prosecuting a BACKGROUND claim for compensation: ¶2 Claimant filed a Form 3 on July 11, 2006, When a claim for compensation has alleging a single-incident work-related injury been filed with the Administrator as herein to his left knee on July 23, 2004. At a hearing on provided, unless the claimant shall in good May 2, 2007, the trial court ruled that there was faith request a hearing and final determina- an intervening injury for which treatment was tion thereon within three (3) years from the sought on June 30, 2006, and denied temporary date of filing thereof or within three (3) total disability and treatment, including sur- years from the date of last payment of com- gery, after June 30, 2006, for the injury. The pensation or wages in lieu thereof, same court reserved the issue of prior periods of shall be barred as the basis of any claim for temporary total disability for a later hearing. compensation under the Workers’ Compen- Claimant filed settlement conference requests sation Act and shall be dismissed by the on June 9, 2008, and November 23, 2009. On Court for want of prosecution, which action December 22, 2009, the trial court issued a mis- shall operate as a final adjudication of the cellaneous order denying Employer’s “§ 43B right to claim compensation thereunder.1

2474 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 ¶7 Reservation of judgment as to a portion of and the record does not reflect that it resulted disability does not permanently toll the statute from any effort on Claimant’s part to have a of limitations for a workers’ compensation final adjudication on the merits of his claim. claim. Ruzika v. Rent City of Altus, 1997 OK CIV Claimant’s only effort “to request a hearing APP 17, ¶ 9, 939 P.2d 23, 25. Additionally, and final determination” as required by § 43(B) repeated filings of forms not intended to request after the May 2, 2007, order was the Form 9 a final hearing and determination are not suf- motion to set for trial filed on May 10, 2010, ficient to toll the statute of limitations. See gener- more than three years after the May 2, 2007, ally Ellington v. Horwitz Enters., 2003 OK 37, 68 order that all parties agree tolled the three-year P.3d 983. In Ellington, based on the rationale that statute of limitations. allowing such a result would thwart the legisla- ¶11 We are not persuaded that the holding in tive purpose of limiting the period of employers’ Key Energy Services, Inc. v. Minyard, 2007 OK 99, potential liability, the Supreme Court cited Mat- 173 P.3d 1198, is applicable as urged by Claim- ter of Death of Hendricks, 1991 OK 52, ¶ 12, 812 ant. In Key Energy Services, the Supreme Court P.2d 1361, 1364, which held that “the bar of the found that an uncontested order of the Work- statute is demonstrated when any five-year ers’ Compensation Court appointing an inde- period passes after filing a claim in which there pendent medical examiner before the statute of has not been a good-faith effort to receive a hear- limitations ran tolled the statutory bar set forth ing and final determination.”2 in § 43(B). ¶8 On May 2, 2007, the trial court entered an ¶12 The claimant in Key Energy Services could order denying temporary total disability ben- not file a Form 9 requesting final determination efits as to treatment, including surgery, of the case without attaching a medical report, received after June 30, 2006, the date of the and he could not attach a medical report with- second injury. However, the trial court reserved out a medical examination. Id. at ¶ 14, 173 P.3d for a later date any adjudication regarding the at 1202. Although the claimant requested the period before this second injury. The trial appointment of an independent medical exam- court later issued an order on December 22, iner, the trial court failed for nearly 8 months, 2009, denying Employer’s request to dismiss until about a month before the statute of limita- the case pursuant to § 43(B), a ruling Employ- tions was to run, to appoint a replacement for er concedes “may have been correct” because the first agreed-upon doctor, who died before December 22, 2009, was within three years of the he could examine the claimant and submit a May 2, 2007, order. report. Id. The Supreme Court held that as a ¶9 Nevertheless, a claimant must take posi- result of the examination which took place a tive action in good faith to achieve a final month after the statute had run, on a date set by determination of his or her case within a three- the court’s order, the examining doctor recom- year period3 as required by both statutory and mended treatment and the employer paid for case law. 85 O.S. Supp. 2010 § 43(B); Ruzika v. the exam. Id. at ¶ 15, 173 P.3d at 1202. “This was Rent City of Altus, 1997 OK CIV APP 17, ¶ 9, 939 not a medical examination procured by the P.2d 23, 25. Form 13 requests for pre-hearing employer, but an uncontested order by the court. settlement conferences do not constitute We find that such circumstances amount to a requests for a final determination. Hennesy v. conscious recognition of liability by the employ- C.R. Anthony, 2003 OK CIV APP 26, ¶ 5, 65 P.3d er in the form of payment for medical treatment, 292, 294. Claimant has cited no authority on and toll the statutory time limit.” Id. (emphasis point to the contrary. omitted). Key Energy Services is clearly distin- guishable from the present case, on both its facts4 ¶10 For much the same reason, the December and the legal basis for the holding. 22, 2009, miscellaneous order does not constitute active pursuit by Claimant of a final determina- ¶13 Our decision today observes the legisla- tion and therefore does not toll the limitation tive intent behind 85 O.S. Supp. 2010 § 43(B). period. According to Claimant’s brief, this Because the Form 9 was not filed until May 10, December 2009 miscellaneous order resulted 2010, we conclude that the three-judge panel from a settlement conference held by the court incorrectly affirmed the trial court’s August 5, during which Employer urged a motion to dis- 2010, order denying Employer’s motion to dis- miss pursuant to § 43(B). The December 2009 miss pursuant to § 43(B). order merely denies that motion to dismiss,

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2475 CONCLUSION ¶14 Claimant’s action was barred by the limi- tations provision of 85 O.S. Supp. 2010 § 43(B). The three-judge panel incorrectly affirmed the trial court’s ruling, and we vacate the panel’s decision and remand with directions to dismiss pursuant to § 43(B). ¶15 VACATED AND REMANDED. FISCHER, V.C.J., and BARNES, P.J., concur.

1. Although we apply the statute as it existed at the time of the Claimant’s injury, Amos v. Spiro Public Schools, 2004 OK 4, ¶ 8, 85 P.3d Want to save some Volume 78 u 813, 816, this section of the statute has not changed since 1997. No. 35 u Dec. 22, 2007 2. The version of § 43(B) in effect at the time of the Hendricks deci- paper? Go online sion provided for a five-year statute of limitations. Ellington applied the three-year period in the 1997 amendment to § 43(B). Ellington, 2003 to my.okbar.org/ OK 37, ¶ 8, 68 P.3d at 985. Login and sign in. 3. Resolution of this case turns on Claimant’s good faith effort to reach final determination of his claim after the May 2, 2007, order Click on “Roster denying in part Claimant’s request for compensation; it is uncontested Info” and switch that there was no payment of compensation or for medical treatment to Claimant for the July 23, 2004, injury that would toll the limitation to electronic to period. receive court 4. See fn. 3, supra. issues.

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2476 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Giving Legal Advice to Your Clients: Grounds for Prosecution?

Earlier this year, Judge Roger Titus of the District of Maryland dismissed the case United States v. Stevens. Lauren Stevens, a former Vice President and Associate General Counsel at GlaxoSmithKline, had been indicted based upon her involvement in responding to an FDA inquiry.

Ms. Stevens’ purported crime? The government alleged that she sent to the FDA six substantive letters that contained false statements and obstructed justice by misleading the FDA concerning GSK’s promotion of one of its prescription drugs. Could this happen to you?

You are invited to come to the OBA Health Law Section Meeting to hear about Ms. Stevens’ experience and “lessons learned” in a discussion moderated by Professor Marguerite Chapman of the TU College of Law: Wednesday, November 2, 2011 Tulsa Hyatt Regency Meeting and Dinner – 6 p.m., Presentation – 6:30 p.m. RSVP to [email protected] by Thursday, October 27, 2011.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2477 Clint Bolick Director of Scharf-Norton Center for Constitutional Litigation Goldwater Institute “State Constitutions as a Bulwark for Freedom”

WEDNESDAY, OCTOBER 19, 2011 5 p.m. Public Lecture Homsey Family Moot Courtroom Sarkeys Law Center N.W. 23rd and Kentucky Okla. City, OK. 73106

law.okcu.edu

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge Fourteenth Judicial District, Office 8 Tulsa County, Oklahoma This vacancy is due to the appointment of the Honorable P. Thomas Thornbrugh to the Court of Civil Appeals.

To be appointed to the office of District Judge, Office 8, Fourteenth Judicial Dis- trict, one must be a registered voter of Tulsa County Electoral Division Five 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 online at www.oscn.net under the link to Judicial Nominat- ing Commission, or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 North Lincoln, Suite 3, Oklahoma City, Oklahoma 73105, (405) 556-9862, and must be submitted to the Chairman of the Commission at the same address no later than 5 p.m., Friday, Oct. 28, 2011. If applications are mailed, they must be postmarked by midnight, Oct. 28, 2011. Jim Loftis, Chairman Oklahoma Judicial Nominating Commission

2478 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2479 Disposition of Cases Other Than by Published Opinion

COURT OF CRIMINAL APPEALS Concurs in Part/Dissents in Part; Smith, J., Friday, September 23, 2011 Concurs. C-2010-1139 — Janice D. Caswell, Appellant, C-2010-1059 — Karen Deborah Smith, Peti- pled no contest to the charge of False Imperson- tioner, was charged in Tulsa County District ation of Another to Create Liability pursuant to Court with two counts of Enabling Sexual a plea agreement in Case No. CF-2010-244, in the Abuse of a Minor Child, in case No. CF-2009- District Court of LeFlore County. In accord with 2614. Petitioner entered a negotiated plea of no the plea agreement, sentencing was deferred contest to the charges and was sentenced to for one (1) year. On October 8, 2010, Caswell five years imprisonment with two years sus- filed an application to withdraw her no-contest pended on each count. The sentences were plea. No hearing was held on this application. ordered to run concurrently. Petitioner filed a Instead, Caswell’s application to withdraw her Motion to Withdraw Guilty Plea. After a hear- plea was denied on November 23, 2010. From ing the request was denied. It is from this rul- this judgment and sentence Janice D. Caswell ing that Petitioner appeals to this Court. The has perfected her Petition for Writ of Certiorari Petition for Writ of Certiorari is GRANTED, appeal. The Petition for a Writ of Certiorari is and the cause REMANDED to the district court GRANTED and this case is REMANDED to the for a proper hearing on the Motion to With- district court FOR AN EVIDENTIARY HEAR- draw Guilty Plea. Opinion by: C. Johnson, J.; A. ING, in accord with this Court’s Rule 4.2(B), on Johnson, P.J., Concurs; Lewis, V.P.J., Concurs; Caswell’s application to withdraw her plea. Lumpkin, J., Dissents; Smith, J., Concurs. Opinion by: Smith, J.; A. Johnson, P.J., concur; Monday, September 26, 2011 Lewis, V.P.J., concur; Lumpkin, J., concur; C. Johnson, J., concur. C-2010-594 — Petitioner, Brandon Wayne F-2010-1123 — Lonnie Sie Chance, Appellant, Brixey, entered a blind plea of guilty to the was tried by jury for the crime of First Degree crimes, counts 1 and 2, first degree rape in viola- Burglary, After Former Conviction of Two or tion of 21 O.S.Supp.2006 § 1111; count 3, lewd More Felonies (Count I) and Unlawful Posses- acts in violation of 21 O.S.Supp.2008 § 1123 sion of Drug Paraphernalia (Count II), in Case (A)(5)(e); count 4, kidnapping in violation of 21 No. CF-2010-207 in the District Court of Gar- O.S.Supp.2007 § 741; count 5, robbery in the first field County. The jury returned a verdict of degree in violation of 21 O.S.Supp.2001, § 791, guilty and recommended as punishment thirty count 6, eluding a police officer in violation of 21 years imprisonment on Count I, and one year O.S.2001, § 540A, all after former conviction of a in the county jail on Count II. The trial court felony, in the district court of Tulsa County case sentenced Appellant accordingly ordering the number CF-2008-3204 before the Honorable Wil- sentences be served concurrently. From this liam C. Kellough, District Judge. Judge Kellough judgment and sentence Lonnie Sie Chance has accepted the pleas and sentenced Brixey to life perfected his appeal. The judgment of the dis- imprisonment on counts 1 and 2, thirty (30) trict court is AFFIRMED. However, the sentence years on count 3, twenty-five (25) years on count imposed on Count I is MODIFIED from thirty 4, twenty (20) years on count 5, and ten (10) years imprisonment to twenty years imprison- years on count 6, all to run consecutively. Brixey, ment and the sentence imposed on Count II is through separate counsel filed two motions to MODIFIED from one year in the county jail to withdraw his pleas. A hearing on the motion thirty days in the county jail. Further, the case is was held, and, at the conclusion of the hearing, REMANDED to the district court for a hearing the trial court denied Brixey’s request. From this to determine the proper restitution amount as is judgment and sentence, Petitioner has perfected required by 22 O.S.2001, § 991a and 22 O.S.2001, his appeal. Brixey’s petition for a writ of certio- § 991f. Opinion by: C. Johnson, J; A. Johnson, P.J., rari is DENIED, and the trial court’s order deny- Concurs; Lewis, V.P.J., Concurs; Lumpkin, J.; ing Brixey’s motion to withdraw plea is AFFIRMED. Opinion by: Lewis, V.P.J.; A. John-

2480 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 son, P.J., recused; Lumpkin, J., concurs; C. John- Merchandise from a Retailer in Tulsa Municipal son, J., concurs; Smith, J., concurs. Court Case No. 5527894. The Honorable Gerald Hofmeister, Municipal Judge, sentenced John- F-2009-537 — Tim Alex Forbes, Appellant, son to seven days in jail and ordered her to pay was tried by jury for the crime of First Degree a $200.00 fine. From this judgment and sentence, Murder in Case No. CF-2007-2379 in the Dis- Appellant appeals. Appellant’s conviction is trict Court of Oklahoma County. The jury AFFIRMED. Opinion by: Smith, J.; A. Johnson, returned a verdict of guilty and recommended P.J., concur; Lewis, V.P.J., concur; Lumpkin, J., as punishment Life Imprisonment Without the concur; C. Johnson, J., concur. Possibility of Parole. The trial court sentenced accordingly. From this judgment and sentence F-2010-132 — Jimmy Lloyd Russell, Appel- Tim Alex Forbes has perfected his appeal. The lant, was tried by jury for the crimes of Assault Judgment and Sentence of the District Court is and Battery with a Dangerous Weapon (Count I) AFFIRMED. Opinion by: A. Johnson, P.J.; and Assault with a Deadly Weapon, Automo- Lewis, V.P.J., concurs; Lumpkin, J., concurs; C. bile (Count 2), both After Former Conviction of Johnson, J., concurs; Smith, J., concurs. Two or More Felonies in Case No. CF-2009- 3747 in the District Court of Tulsa County. The F-2010-323 — Appellant, Samson Deshaun jury returned a verdict of guilty and recom- Guy, was tried by jury and convicted of Kidnap- mended as punishment 25 years imprisonment ping (Count I), Attempted Rape in the First and a $5,000 fine on each count. The trial court Degree (Count II), and Assault and Battery with sentenced accordingly. From this judgment Intent to Kill (Count III), After Former Felony and sentence Jimmy Lloyd Russell has per- Conviction in the District Court of Oklahoma fected his appeal. The Judgment and Sentence County, Case Number CF-2002-1518. The jury of the District Court is AFFIRMED. Opinion recommended as punishment imprisonment for by: A. Johnson, P.J.; Lewis, V.P.J., concurs in ten (10) years in Count I, imprisonment for life results; Lumpkin, J., concurs in results; C. John- in Count II, and imprisonment for thirty (30) son, J., concurs; Smith, J., concurs. years in Count III. The trial court sentenced accordingly and ordered the sentences to run C-2010-1129 — Julius Jerome Walker, Peti- consecutively. It is from this judgment and sen- tioner, was charged in the District Court of tence that Appellant appeals. AFFIRMED. Opin- Muskogee County, in Case No. CF-2008-374, ion by: Lumpkin, J.; A. Johnson, P.J., concur in with Assault and Battery with a Dangerous results; Lewis, V.P.J., concur in results; C. John- Weapon (Counts I, II, III, IV, XI and XIII), Child son, J., concur; Smith, J., concur in results. Abuse (Counts V, VI, VII and VIII), Assault and Battery with a Deadly Weapon (Count IX), F-2010-478 — Appellant Sullivan D. Jackson Aggravated Assault and Battery (Count X) and was tried by jury and convicted of Trafficking in Domestic Assault and Battery by Strangulation Illegal Drugs (Count I); Felony Possession of a (Count XII). Petitioner entered a blind plea of Controlled Substance (Count II); and Driving guilty to the crimes charged. The Honorable with a License Revoked (Count IV), all counts Michael Norman accepted Petitioner’s plea After Former Conviction of Two or More Felo- and sentenced him to life on each count with nies, in the District Court of Garfield County, the sentences to run concurrently. Petitioner Case No. CF-2009-384. The jury recommended subsequently filed a motion to withdraw his as punishment imprisonment for life without guilty plea. The trial court held a hearing on the possibility of parole and a $100,000. fine in Petitioner’s motion to withdraw and the court Count I, sixty (60) years imprisonment in Count denied the application and this appeal fol- II, and one year imprisonment and a $500.00 fine lowed. The Petition for Writ of Certiorari is in Count IV. The trial court sentenced accord- DENIED. Count XIII is REVERSED with ingly ordering the sentences to run concurrently. instructions to DISMISS. Opinion by: C. John- It is from this judgment and sentence that Appel- son, J.; A. Johnson, P.J., Concurs; Lewis, V.P.J., lant appeals. AFFIRMED. Opinion by: Lumpkin, Concurs; Lumpkin, J., Concurs in Part/Dis- J.; A. Johnson, P.J., concur in results; Lewis, V.P.J., sents in Part; Smith, J., Concurs. concur in results; C. Johnson, J., concur in prt/ dissent in part; Smith, J., concur in results. J-2011-435 — J. H. S., Appellant, appealed to this Court from an order of redisposition Wednesday, September 28, 2011 entered by the Honorable Rocky L. Powers, M-2010-411 — On April 27, 2010, Appellant District Judge, in Case No. JDL-2009-51 in the Kindra Johnson was convicted of Larceny of District Court of Bryan County. In that case,

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2481 Appellant was adjudicated delinquent for the sentences ordered to run concurrently and all offense of Reckless Handling of a Firearm, and suspended. On November 23, 2009, the State the order of disposition placed Appellant in the filed a motion to revoke Appellant’s suspended custody of his parents, under rules and condi- sentences alleging that he violated probation tions of probation and supervision by OJA. On by failing to report; failing to refrain from vio- May 24, 2011, Judge Powers entered the order lating city or state law as he was arrested for of redisposition, removed Appellant from the public drunk; failing to refrain from possessing custody of his parents, and ordered that cus- and/or using illegal drugs as he tested positive tody be placed with OJA. The order of redispo- for THC on 1/21/09; and failing to successfully sition entered by the District Court of Bryan complete sex offender counseling. On January County in Case No. JDL-2009-51 is AFFIRMED. 19, 2010, the State filed an amended applica- The matter is remanded to the District Court to tion to revoke Appellant’s suspended sentences correct the order of redisposition nunc pro tunc. adding two violations of probation that he Opinion by: Lumpkin, J.; A. Johnson, P.J., con- failed to refrain from violating city or state law curs; Lewis, V.P.J., concur; C. Johnson, J., con- as he was arrested for Driving While Under the curs; Smith, J., concurs. Influence on 11/25/09, Case No. 09-100942; and failed to refrain from violating city or state S-2011-105 — Appellee Robert Lee Smallen law as he was arrested for public intoxication was charged in the District Court of Cherokee on 11/6/09, Case No. 09-095122. The revoca- County with First Degree Murder, Case No. tion hearing was held on February 16, 2010. CF-2007-321, in the death of Ronnie Hall. On After hearing the evidence and arguments, April 14, 2009, a jury trial began which resulted Judge Smith revoked five years of Appellant’s in a hung jury, and the case was again set for concurrent fifteen year suspended sentences. trial. During the trial, Daniel Thornburg testi- The revocation of five years of Appellant’s con- fied for the State regarding his presence at current fifteen year suspended sentences in Hall’s murder. On October 27, 2009, Thornburg Case No. CF-2006-7454 in the District Court of was charged with First Degree Murder for his Oklahoma County is AFFIRMED. Opinion by: participation in Hall’s murder. On November Smith, J.; A. Johnson, P.J., Concur; Lewis, V.P.J., 19, 2009, Thornburg filed a Notice of Invoca- Concur; Lumpkin, J., Concur; C. Johnson, J., tion of Constitutional Rights invoking his right Concur. against self-incrimination. On November 18, 2010, the Appellee filed a Motion in Limine S-2010-1037 — Jeffrey Nigel Howard was requesting the trial court prohibit the State from charged with Failure to Comply with the Sex introducing Thornburg’s testimony from the Offenders Registration Act in Case No. CF- first trial at the second trial. The State filed its 2008-5149, in the District Court of Oklahoma response to the motion on November 19, 2010. County. Howard’s Motion to Quash and Dis- On January 25, 2011, a hearing was held in front miss was granted. The State of Oklahoma of the Honorable Jeff Payton, District Judge, and appeals this decision. The Order of the District the Appellee’s Motion in Limine was granted. Court of Oklahoma County sustaining How- The State announced its intent to appeal and ard’s Motion to Quash is REVERSED. Opinion lodged this appeal. The ruling of the District by: Smith, J.; A. Johnson, P.J., Concur; Lewis, Court granting the motion in limine is REVERSED V.P.J., Concur; Lumpkin, J., Concur; C. John- and the case is REMANDED to the District son, J., Concur. Court for further proceedings consistent with C-2011-115 — Zachary Lee Alexander Garri- this opinion. Opinion by: Lumpkin, J.; A. John- son, Petitioner, plead to one count of Child son, P.J., concur; Lewis, V.P.J., concur; C. John- Neglect in Case No. CF-2010-203, in the Dis- son, J., concur; Smith, J., concur. trict Court of Garfield County. The jury returned RE-2010-925 — Richard James Cody, Appel- a verdict of guilty and recommended as pun- lant, appeals from the revocation of five years ishment ten (10) years with credit for time of his concurrent fifteen year suspended sen- served. Garrison was also ordered to pay costs, tences, by the Honorable Lisa Tipping Davis, fees, and a Victim Compensation Assessment District Judge, in Case No. CF-2006-7454, in the totaling $7,166.00. After a February 8, 2011 District Court of Oklahoma County. Appellant hearing, Garrison’s Motion to Withdraw Guilty pled guilty to five counts of Sexual Abuse of a Plea was denied. From this judgment and sen- Child and was convicted and sentenced to tence Zachary Lee Alexander Garrison has terms of fifteen years on each count, with the perfected his Petition for Writ of Certiorari.

2482 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 The Petition for Writ of Certiorari is DENIED. Conviction of a Felony (Count 3), in Case No. Opinion by: Smith, J.; A. Johnson, P.J., Concur; CF-2002-46 in the District Court of Oklahoma Lewis, V.P.J., Concur; Lumpkin, J., Concur; C. County. The jury returned a verdict of guilty and Johnson, J., Concur. recommended as punishment the death penalty on Count 1, and life imprisonment on each of Thursday, September 29, 2011 Counts 2 and 3. The trial court sentenced accord- F-2011-168 — Everado Valencia, Appellant, ingly. Since then Wood has challenged his Judg- was tried by jury for the crimes of Count 1: ment and Sentence on direct appeal and in col- Shooting with Intent to Kill; Count 2: Possession lateral proceedings in this Court. Wood pres- of Cocaine; and Count 3: Possession of a Firearm ently has a habeas corpus proceeding pending in in the Commission of a Felony, in Case No. CF- federal court. All of Wood’s previous challenges 2006-5526 in the District Court of Tulsa County. before this Court have proved unsuccessful. The jury returned a verdict of guilty and recom- Tremane Wood’s second application for post- mended as punishment Count 1, life imprison- conviction relief is DENIED. Further, his motions ment; Count 2, two years imprisonment; and for an evidentiary hearing and discovery are Count 3, ten years imprisonment. The trial court DENIED. Opinion by: A. Johnson, P.J.; Lewis, sentenced accordingly ordering all counts were V.P.J., concurs; Lumpkin, J., concurs in results; C. to be served consecutively to one another. From Johnson, J., concurs; Smith, J., concurs. this judgment and sentence EVERADO VALEN- M-2010-1097 — Following a non jury trial CIA has perfected his appeal. AFFIRMED. Opin- October 12, 2010, Appellant, Christopher Lee ion by: C. Johnson, J.; A. Johnson, P.J., Concurs; Tucker, was found guilty in the Municipal Court Lewis, V.P.J., Concurs; Lumpkin, J., Concurs; of Record for the City of Oklahoma City, Case Smith, J., Concurs. No. 098344344, of Interfering with Official Pro- S-2011-208 — The State of Oklahoma, Appel- cess, in violation of Oklahoma City Municipal lant, appeals the order of the Honorable Cliff Code 30-68. The Honorable Page G. Morgan, Smith, Special Judge, sustaining Appellee’s Municipal Judge, fined Appellant $69.00 and motion to suppress evidence in the District assessed costs in the amount of $133.00. Appel- Court of Tulsa County, Case No. CM-2011-600. lant appeals from the Judgment and Sentence This Court has jurisdiction pursuant to 22 O. imposed. Judgment and Sentence AFFIRMED. S.Supp.2009, § 1053(5). The State appeals raising Opinion by: Johnson, C., J. A. Johnson, P.J.; Con- two propositions of error in this appeal. The curs; Lewis, V.P.J.; Concurs; Lumpkin, J.; Con- order of the District Court of Tulsa County is curs in Results; Smith J.; Concurs. AFFIRMED. Opinion by: Lewis, V.P.J.; A. John- Monday, October 3, 2011 son, P.J., Concur; Lumpkin, J., Concur; C. John- son, J., Concur; Smith, J., Concur. RE-2010-1013 — James Henry Taylor, Appel- lant, appeals from the revocation of one year of Friday, September 30, 2011 his concurrent ten year suspended sentences, by F-2010-1100 — Tucker Roger Mendenhall, the Honorable Lisa Tipping Davis, District Judge, Appellant, was tried by jury for the crime of in Case No. CF-2006-8103 in the District Court of Indecent Exposure, after former conviction of Oklahoma County. Appellant pled no contest to two or more felonies in Case No. CF-2009-121, in two counts of Possession of a Stolen Vehicle, the District Court of Okfuskee County. The jury after former conviction of two or more felonies. returned a verdict of guilty and recommended He was convicted and sentenced to terms of ten as punishment twenty-five years imprisonment. years on each count, with the sentences ordered The trial court sentenced accordingly. From this to run concurrently and all suspended. On judgment and sentence Tucker Roger Menden- March 11, 2010, the State filed a motion to revoke hall has perfected his appeal. AFFIRMED. Opin- Appellant’s suspended sentences alleging that ion by: Smith, J.; A. Johnson, P.J., Concur; Lewis, he violated probation by committing the new V.P.J., Concur in Results; Lumpkin, J., Concur; C. crime of Actual Physical Control of a Motor Johnson, J., Concur in Part/Dissent in Part. Vehicle While Under the Influence of Alcohol as charged in Oklahoma County District Court PCD-2011-590 — Tremane Wood, Petitioner, Case No. CF-2010-518. On October 12, 2010, the was tried by jury for the crimes of First Degree revocation hearing was held. After hearing the Murder (Count 1), Robbery with Firearms, After evidence and arguments, Judge Davis revoked Former Conviction of a Felony (Count 2), and one year of Appellant’s concurrent ten year sus- Conspiracy to Commit a Felony, After Former pended sentences. The revocation of one year of

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2483 Appellant’s concurrent ten year suspended sen- Counts 1 through 5 after former conviction of tences in Case No. CF-2006-8103 in the District two (2) or more felonies, and Count 6 after for- Court of Oklahoma County is AFFIRMED. Opin- mer conviction of one (1) felony. The jury sen- ion by: C. Johnson, J.; A. Johnson, P.J.; Concurs; tenced Appellant to life imprisonment and a ten Lewis, V.P.J.; Concurs in Results; Lumpkin, J.; thousand dollar ($10,000) fine on Count 1; twen- Concurs; Smith, J.; Concurs. ty-five (25) years imprisonment and a ten thou- sand dollar ($10,000) fine each on Counts 2 and Tuesday, October 4, 2011 3; thirty (30) years imprisonment and a ten F-2010-15 — Tony Alton Hall was tried by jury thousand dollar ($10,000) fine on Count 4; and convicted of two counts of first degree (mal- twenty (20) years imprisonment and a ten ice) murder in violation of 21 O.S.Supp.2006, thousand dollar ($10,000) fine on Count 5; and § 701.7(A), and two counts of unlawful removal nine (9) years imprisonment and a ten thou- of a dead body in violation of 21 O.S.2001, § sand dollar ($10,000) fine on Count 6. The 1161, after former conviction of two or more fel- Honorable Thomas C. Gillert, District Judge, onies, in Tulsa County District Court case num- pronounced judgment and sentence accord- ber CF-2007-5847, before the Honorable Kurt G. ingly, ordering Counts 1 and 2 served concur- Glassco, District Judge. The jury set punishment rently; Counts 3, 4, and 5 to run consecutively at life imprisonment on each count, and the trial to each other and to Counts 1 and 2; and court set punishment in accordance with the Count 6 to run concurrently with Count 5. jury verdict ordering the sentences to be served From this judgment and sentence, Terry Reon consecutively. Hall has perfected an appeal to Darnell has perfected his appeal. AFFIRMED. this Court. The judgments and sentences of the Opinion by: Lewis, V.P.J.; A. Johnson, P.J., district court are AFFIRMED. Appellant’s motion Concurs; Lumpkin, J., Concurs; C. Johnson, J., for a Rule 3.11 evidentiary hearing is DENIED. Concurs; Smith, J., Concurs. Opinion by: Lewis, V.P.J.; A. Johnson, P.J., Con- Thursday, October 6, 2011 curs in Results; Lumpkin, J., Concurs; C. John- son, J., Concurs; Smith, J., Concurs. F-2010-655 — Quashay S. Waters, Appellant, was tried by jury for the crimes of First Degree F-2010-976 — Appellant Daniel Whelchel was (felony) Murder (Count I), and Robbery tried and convicted in a non-jury trial before the (Count II) in Case No. CF-2008-6085, in the Honorable Thomas S. Landrith, District Judge, District Court of Oklahoma County. The jury of Assault with Intent to Kill (Count I) and First returned a verdict of guilty and recommended Degree Robbery (Count II), in the District Court as punishment life imprisonment on Count I of Pontotoc County, Case No. CF-2009-193. The and six (6) years imprisonment on Count II. trial court sentenced Appellant to imprisonment The trial court sentenced accordingly. From for twenty-two (22) years in Count I and twenty this judgment and sentence Quashay S. Waters (20) years in Count II, ordering the sentences to has perfected his appeal. AFFIRMED. Opin- run concurrently. It is from this judgment and ion by: Smith, J.; A. Johnson, P.J., Concur; sentence that Appellant appeals. The Judgment Lewis, V.P.J., Concur; Lumpkin, J., Concur in and Sentence is AFFIRMED. The Application for Results; C. Johnson, J., Concur. an Evidentiary Hearing on Sixth Amendment Grounds is DENIED. Opinion by: Lumpkin, J.; C-2010-1179 — Petitioner Donnell Devon Smith A. Johnson, P.J., concur; Lewis, V.P.J.: concur; C. was charged by multiple Informations filed on Johnson, J., concur in result; Smith, J., concur. November 6, 2009 and November 24, 2009, in twelve Comanche County District Court Cases, F-2010-452 — Terry Reon Darnell, Appellant, Case No. CF-2009-501 (4 Counts), Case No. CF- was tried by jury and convicted of robbery with 2009-502 (3 Counts), Case No. CF 2009-503 (2 dangerous weapon (Counts 1 and 2), in viola- Counts), Case No. CF-2009-504 (4 Counts), Case tion of 21 O.S.2001, § 801; burglary in the first No. CF-2009-505 (2 Counts), Case No. CF-2009- degree (Counts 3 and 4), in violation of 21 530 (3 Counts), Case No. CF-2009-531 (3 Counts), O.S.2001, § 1431; possession of a firearm after and 1 Count each in Case Nos. CF-2009-532, CF former conviction of a felony (Count 5), in 2009-533, CF-2009-534, CF-2009-535 and CF 2009- violation of 21 O.S.Supp.2007, § 1283; and lar- 536. Petitioner entered negotiated guilty pleas. ceny of an automobile (Count 6), in violation The Honorable Gerald Neuwirth, District Judge, of 21 O.S.Supp.2002, § 1720, in the District accepted the pleas and sentenced Petitioner. Peti- Court of Tulsa County, Case No. CF-2008- tioner filed his Motion to Withdraw on October 6186. The jury found Appellant committed 29, 2010, and at a hearing held on November

2484 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 8 and November 30, 2010, the Motion was Officer), and Counts II and IV are remanded to DENIED. The order of the district court denying the District Court with instructions to dismiss. Petitioner’s motion to withdraw plea of guilty is Opinion by: Lumpkin, J.; A. Johnson, P.J., con- AFFIRMED. The Judgment and Sentences in all cur in result; Lewis, V.P.J., concur; C. Johnson, J., cases are AFFIRMED, except for the following: concur; Smith, C., concur. the sentence in Count 1, CF-2009-505 is MODI- ACCELERATED DOCKET FIED to five (5) years imprisonment. Case No. Tuesday, September 27, 2011 CF-2009-533 is remanded to the District Court for an Order Nunc Pro Tunc reflecting that the J-2011-462 — K.T.L., Appellant, is charged as a sentence is to run concurrent with the sentences Youthful Offender in Cleveland County District in CF-2009-501, 502, 503, 504, and 534. Opinion Court Case No. CF-2011-351 with Robbery by by: Lumpkin, J.; A. Johnson, P.J., concur; Lewis, Force/Fear, Count I, and Kidnapping, Count II. V.P.J., concur in results; C. Johnson, J., concur; The Honorable Michael D. Tupper, Special Judge, Smith, C., concur. denied Appellant’s motion for certification as a juvenile. From that order, K.T.L. has perfected Friday, October 7, 2011 his appeal. The District Court’s order is C-2010-1060 — Petitioner Carlos David Oli- REVERSED and REMANDED with instructions ver was charged in the District Court of Tulsa to certify K.T.L. as a juvenile. Opinion by PER County, Case No. CF-2010-18 with Robbery CURIAM. A. Johnson, .P.J.: Concur; Lewis, J.: with a Firearm (Count I), Assault with a Dan- Dissent; Lumpkin, J.: Concur; C. Johnson, J.: Not gerous Weapon (Count II); Assault with a Participating; Smith, J.: Concur. Dangerous Weapon While Masked or Dis- COURT OF CIVIL APPEALS guised (Count III) and Resisting an Officer (Division No. 1) (Count IV), After Former Conviction of Two Thursday, September 22, 2011 or More Felonies (21 O.S.2001, § 51.1). Trial began on August 17, 2010. After the prosecu- 108,632 — In Re the Marriage of: James A. tion had passed the jury panel for cause, Peti- Couch, Petitioner/Appellee, vs. Cynthia Lynn tioner entered blind pleas of guilty to all Couch, Respondent/Appellant. Appeal from charges. The Honorable Tom C. Gillert, Dis- the District Court of Haskell County, Oklaho- trict Judge, accepted the pleas and ordered a ma. Honorable Danita G. Williams, Trial Judge. pre-sentence investigation. On September 16, In this divorce proceeding, Appellant (Wife) 2010, before the court imposed punishment, seeks review of the trial court’s division of Petitioner sent the judge a letter saying he property and support alimony. The trial court wished to withdraw his guilty pleas arguing awarded Wife support alimony in the amount that he had been coerced into entering the pleas of $1,500.00 per month for twelve months, by counsel. On October 4, 2010, the court sen- property in the amount of $75,206.00 and tenced Petitioner to imprisonment for thirty- ordered Appellee (Husband) to pay Wife seven (37) years in Count I, twenty (20) years in $344.50 for twelve months as alimony in lieu of each of Counts II and III, and one year in Count property division. A divorce action is one of IV. The court ordered all sentences to run con- equitable cognizance. The trial court exercises currently with no credit for time served. The its discretion in dividing the marital estate and court treated Petitioner’s letter of September 16, its decision will not be disturbed unless it is as a motion to withdraw plea and arranged for clearly against the weight of the evidence or is new counsel to represent Petitioner at the hear- an abuse of discretion. Because the value of ing. The hearing on the motion to withdraw was Husband’s separate property on the date of held October 26, 2010. After hearing testimony marriage was not determined, we find the trial and argument, the court denied the motion. It is court did not abuse its discretion in not attrib- that denial which is the subject of this appeal. uting to Wife any enhanced value of Husband’s Accordingly, the Court having granted certio- separate property as a marital asset. As to the rari, we find the order of the district court deny- properties acquired after marriage, the trial ing Petitioner’s motion to withdraw plea of court took into consideration the appraised guilty is AFFIRMED in Count I (Robbery with a values of these properties along with the Firearm) and Count III (Assault with a Danger- accompanying debts and awarded the proper- ous Weapon While Masked). The district court’s ties and debt to Husband. It awarded Wife ali- order is REVERSED in Count II (Assault with a mony in lieu of property division “to effect a Dangerous Weapon) and Count IV (Resisting an fair and just division thereof.” Regarding the

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2485 trust agreement, Husband had the right to uni- 109,327 — Select Medical Corporation/Select laterally revoke the agreement because the Specialty Hospital of OKC and Liberty Mutual only real property transferred to the trust was Insurance Company, Petitioners, vs. Sonya K. his separate property. No property was con- Wellner and The Workers’ Compensation veyed into joint tenancy ownership with Wife, Court, Respondents. Proceeding to Review an creating a gift to the marital estate. The trial Order of a Three-Judge Panel of The Workers’ court did not abuse its discretion in disregard- Compensation Court. Petitioners Select Medi- ing the trust agreement. We find the court’s cal Corporation/Select Specialty Hospital of award of support alimony along with Wife’s OKC and Liberty Mutual Insurance Company monthly income will meet her need. The court’s contend the three-judge panel of the Workers’ judgment is AFFIRMED. Opinion by Hansen, Compensation Court erred in vacating the por- J.; Hetherington, P.J., and Bell, C.J., concur. tion of a December 15, 2010 order awarding Sonya K. Wellner eight weeks of temporary total 108,828 — In the Matter of Children J.L.; E.F.; disability benefits for an infection by Clostridi- and A.F., Alleged Deprived: Marian Lamb, um Difficile acquired at her employment which Appellant, vs. State of Oklahoma, Appellee. caused her to develop colitis and substituting a Appeal from the District Court of Oklahoma finding she was entitled to both accrued and County, Oklahoma. Honorable Stephen Alcorn, additional such benefits for a longer time period. Judge. Appellant, the biological father of J.L., a HELD: Petitioners present a question of the deprived child (Father), appeals from the trial application and interpretation of the term “soft court’s order denying his petition to vacate the tissue”as used in both 85 O.S.Supp.2005 § 22(3)(d) judgment terminating his parental rights to J.L. and, more recently, in 85 O.S.Supp.2011 § 332(K). Based on our review of the record, the parties’ Respondent’s motion to dismiss the appeal is briefs, and applicable law, we cannot find the denied because, pursuant to Okla.Sup.Ct.R. trial court abused its discretion in refusing to 1.103, the petition for review is deemed amend- vacate the termination order. We are further ed. The statutory interpretation suggested by unable to find that Father was denied due pro- Petitioners would require the Court to tortur- cess in this termination proceeding. Accord- ously expand the definition of “soft tissue inju- ingly, both the termination judgment and the ry” to the point of absurdity, which we will not order denying the petition to vacate are do. The definition of “soft tissue injury” pro- AFFIRMED. Opinion by Bell, C.J.; Hethering- vided by the Legislature, when taken in context, ton, P.J., and Hansen, J., concur. clearly contemplates injury to tissues which sur- round bones and joints, not the colon. The Order 108,838 — John Henry May, Plaintiff/Appel- of the Workers’ Compensation Court is neither lant, vs. Oklahoma Department of Corrections, contrary to law nor against the clear weight of Defendant/Appellee. Appeal from the District the evidence, and it is SUSTAINED. Opinion Court of Oklahoma County, Oklahoma. Hon- by Hetherington, P.J.; Bell, C.J., and Hansen, J., orable Vicki L. Robertson, Trial Judge. John concur. Henry May appeals from a district court jour- 109,382 — City of Midwest City, Petitioner, nal entry order dismissing in full his civil vs. James Beller and The Workers’ Compensa- action characterized by the Department of Cor- tion Court, Respondents. Proceeding to Review rections (DOC) and the district court as an an Order of The Workers’ Compensation Court. action brought under Title 57 O.S. § 564.1 for Honorable John McCormick, Judge. Petitioner judicial review of a DOC disciplinary process. (Employer) seeks review of an order of the The Supreme Court denied DOC’s motion to Workers’ Compensation Court granting an dismiss May’s appeal for lack of jurisdiction additional twelve weeks of temporary total under § 564.1 and determined the appeal was disability (TTD) benefits to Respondent, James proper. We conclude the record shows May has Beller (Claimant), and finding light duty work plead a legally cognizable claim when the peti- was not at issue. Claimant had an injury to the tion is read as a whole with all allegations, spine and corrective surgery was performed. including reasonable inferences therefrom, The limits on TTD compensation for soft tissue taken as true. The district court’s order dis- injury do not apply. We sustain the order missing May’s petition is reversed and remand- because Claimant’s injury was not a soft-tissue ed. REVERSED AND REMANDED. Opinion injury, and Claimant was still TTD when he by Hetherington, P.J.; Bell, C.J., and Hansen, J., resigned and had not been released to light concur. duty. Therefore, light duty was not at issue.

2486 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 SUSTAINED. Opinion by Hansen, J.; Hether- (Division No. 2) ington, P.J., and Joplin, J. (sitting by designa- Thursday, September 22, 2011 tion), concur. 108,906 — Stanley L. Abel and Mozaffar Jah- Wednesday, September 28, 2011 anguiri, Plaintiffs/Appellants, v. Barry L. Swit- zer, Defendant/Appellee. Appeal from an 104,717 — Meloni Janzen, Plaintiff/Appellant, order of the District Court of Cleveland Coun- vs. Developing Excellence, Inc., Defendant/ ty, Hon. Tom A. Lucas, Trial Judge. Plaintiffs/ Appellee. Appeal from the District Court of Appellants Abel and Jahanguiri bring this Tulsa County, Oklahoma. Honorable Russell P. accelerated appeal from the trial court’s grant Hass, Trial Judge. Plaintiff Meloni Janzen (Appel- of summary judgment in favor of Defendant/ lant) filed a wage complaint with the Depart- Appellant Switzer. The case involves a claim ment of Labor against her employer, Defendant for the payment of money, which arises out of Developing Excellence, Inc. (Appellee), and the parties being members of, and owners of obtained an administrative order of determina- interests in, a limited liability company operat- tion in her favor in the sum of $25,000 for unpaid ing as an Oklahoma City restaurant business. wages and liquidated damages. Appellant regis- Abel and Jahanguiri sued to recover monies tered the order as a foreign judgment in Tulsa pursuant to theories of “detrimental reliance,” County District Court. Her appeal is from a trial “unjust enrichment,” and “imposition of con- court order entered after a hearing on assets structive trust.” Based upon our review of the which sustained Appellee’s objection to Appel- record on appeal, the uncontroverted material lant’s inquiry concerning its sole shareholder’s facts and the applicable law, we find the trial personal assets. We do not find Appellant’s brief court did not err in granting summary judg- reasonably supportive of her allegation corpo- ment in favor of Switzer and against Abel and rate protection should be pierced in this case and Jahanguiri. We affirm. AFFIRMED. Opinion that the sole shareholder’s personal assets are from Court of Civil Appeals, Division II, by subject to execution. The trial court’s order is Barnes, P.J.; Fischer, V.C.J., and Wiseman, J., affirmed. AFFIRMED. Opinion by Hetherington, concur. P.J.; Bell, C.J., concurs, and Hansen, J., dissents. Friday, September 23, 2011 109,083 — JAK III Corporation, a Texas Corpo- ration, Plaintiff/Appellee, vs. Gordon A. Neff, 108,112 — Donald J. Bierman, Plaintiff/Appel- Defendant/Appellant, Home Rescuers 9601, lant, vs. Aramark Refreshment Services, Inc., LLC, an Oklahoma Limited Liability Company; Defendants/Appellees, and Laura E. Konelick, and John Doe, Whose True Name is Unknown, Defendant. Appeal from the District Court of Defendants. Appeal from the District Court of Oklahoma County, Hon. Barbara G. Swinton, Logan County, Oklahoma. Honorable Donald L. Trial Judge. Plaintiff Bierman appeals a jury ver- Worthington, Trial Judge. Appellant (Neff) seeks dict award of one dollar in punitive damages in review of the trial court’s order granting sum- his automobile negligence action against Defen- mary judgment to Appellee (JAK). Neff contends dant Aramark. The issues primarily involve the the trial court erred in denying him a jury trial trial court’s refusal to admit evidence. The trial because he demanded one. The granting of sum- court did not err in refusing to allow evidence mary judgment ultimately depends upon a regarding Aramark’s alleged negligent hiring determination by the trial court of whether there and supervision of its employee. Bierman’s is a substantial controversy as to any material claim against Aramark was not based on Ara- fact. Although Neff set forth many facts in his mark’s alleged independent negligence, e.g., amended response, he did not attach any evi- negligent hiring, but only on Aramark’s vicari- dentiary materials justifying his opposition to ous and legally imposed liability arising solely JAK’s motion for summary judgment. The rul- from its status as an employer. We are unable to ing on a motion for summary judgment is to be conclude the exclusion of the evidence led to a made on the record the parties have actually miscarriage of justice, a substantial violation of presented and not on a record which is poten- Bierman’s rights, or a different verdict. The evi- tially possible. We find the trial court properly dence regarding the employee’s suspended granted summary judgment. The trial court also driver’s license was remote in time, the event properly ordered the mortgage lien be foreclosed having taken place about seven years before the and the properties ordered sold to satisfy the accident. And the jury heard testimony from judgment. AFFIRMED. Opinion by Hansen, J.; Aramark’s employee that she had been drinking Hetherington, P.J., and Bell, C.J., concur. on the job for months before the accident. Evi-

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2487 dence that she had once had a suspended driv- an Oklahoma Limited Liability Company; er’s license was therefore cumulative and could GLOBAL WEST FINANCIAL LLC, an Oklaho- be excluded under 12 O.S.2001 § 2403. ma Limited Liability Company; SURE LOCK AFFIRMED. Opinion from Court of Civil FINANCIAL, LLC, an Oklahoma Limited Liabil- Appeals, Division II by Fischer, V.C.J.; Barnes, P. ity Company; SURE LOCK LOANS LLC, an J., and Wiseman, J., concur. Oklahoma Limited Liability Company; THE WAVE-GOLDMADE, LTD, an Unincorporated Monday, September 26, 2011 Association; BRIAN McKYE, an individual; JOE 109,178 — Donald Hughes, Plaintiff/Appel- DON JOHNSON, an individual; and JAMES lant, v. Don R. Hughes, individually and as FARNHAM, an individual, STORYBOOK PROP- Trustee of the Ro Ann Maxwell Hughes Irrevo- ERTIES, LLC, a California Limited Liability cable Trust; and Jane Thornton, individually and Company; STORYBOOK INVESTMENTS WA as Trustee of the Ro Ann Maxwell Hughes Irre- LLC, a Washington Limited Liability Company; vocable Trust, Defendants/Appellees. Appeal MATTHEW G. STORY, an individual and Cali- from an order of the District Court of Garfield fornia resident, Defendants, and HERITAGE County, Hon. Ronald G. Franklin, Trial Judge. ESTATE SERVICES LLC, an Oklahoma Limited This is a dispute between family members over Liability Company; STEPHEN J. MORIARTY, several trusts. Facts are in dispute as to whether Court Appointed Special Master for HERITAGE one of the trusts was funded, and as to whether ESTATE SERVICES LLC, an Oklahoma Limited Plaintiff received sufficient notice such that, Liability Company, Counter-Appellant/Appel- with reasonable diligence, he could have discov- lee/Appellant, and JEFF BURKE, Counter- ered the alleged injury more than two years Appellee/Appellant/Interested Party. Appeal before he filed his lawsuit. AFFIRMED IN PART, from an order of the District Court of Oklahoma REVERSED IN PART, AND REMANDED FOR County, Hon. Noma D. Gurich, Trial Judge. Jeff FURTHER PROCEEDINGS. Opinion from Court Burke (Burke) appeals the trial court’s order of Civil Appeals, Division II, by Barnes, P.J.; denying his request for the release of funds Fischer, V.C.J., and Wiseman, J., concur. being held by Stephen J. Moriarty, the Special Master appointed by the Court pursuant to the Tuesday, September 27, 2011 request of the Oklahoma Department of Securi- 107,985 — Danny Paul Lang, Plaintiff/ ties. The Special Master appeals the same order, Appellant, vs. Marie Catherine Herrington, contending the trial court erred in denying its Defendant/Appellee. Appeal from Order of request to compel Burke to return money paid to the District Court of McClain County, Hon. Burke by the Oklahoma Department of Correc- Candace Blalock, Trial Judge, awarding cus- tions which the Special Master claims does not tody of minor child to Mother. Father asserts belong to Burke. We find the portion of the trial that the trial court’s custody award of the court’s order finding Burke is entitled to keep younger child to Mother was against the clear the initial payment is correct, and affirm. The weight of the evidence and was an abuse of dis- portion of the order granting the Special Mas- cretion. Essentially, Father has simply presented ter’s claim to the final payment is reversed. his side of the evidence and asserted that, based AFFIRMED IN PART, REVERSED IN PART, on that evidence, the trial court erred. As the AND REMANDED WITH DIRECTIONS. Opin- appellant, it was Father’s burden of producing a ion from the Court of Civil Appeals, Division II, sufficient record to demonstrate error, because by Goodman, P.J.; Rapp, J., and Barnes, J. (sitting error in the lower court is not presumed. See by designation), concur. Pracht v. Okla. State Bank, 1979 OK 43, ¶ 5, 592 107,926 — Heather D. Stelle, Petitioner/ P.2d 976, 978. In other words, it was not Mother’s Appellant, vs. Jonathan A. Stelle, Respon- burden to produce evidence supporting the trial dent/Appellee. Appeal from Order of the court’s decision, but Father’s burden to show District Court of Ottawa County, Hon. Robert how the trial court erred. AFFIRMED. Opinion E. Reavis II, Trial Judge. Mother appeals the from Court of Civil Appeals, Division II by district court’s order granting Father’s motion Fischer, V.C.J.; Wiseman, J., concurs and Barnes, to modify and awarding custody of the par- P.J., concurs in part and dissents in part. ties two minor children to Father. Mother’s 108,101 — OKLAHOMA DEPARTMENT OF notice of intent to relocate was filed pursuant SECURITIES ex rel. IRVING L. FAUGHT, Admin- to 43 O.S. Supp. 2008 § 112.3. Mother’s right to istrator, Counter-Appellant/Appellee/Appel- relocate is governed by 43 O.S. Supp. 2009 lant, v. GLOBAL WEST FUNDING, LTD, CO., § 112.2A: “A parent entitled to the custody of

2488 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 a child has a right to change his residence, to determine that placing custody with Father subject to the power of the district court to is in the child’s best interests. We further find restrain a removal which would prejudice the that Mother has failed to demonstrate that rights or welfare of the child.” Title 43 O.S. exclusion of the testimony in the district court Supp. 2008 § 112.3(K), governs the determina- proceedings constituted reversible error. We tion of a custodial parent’s right to relocate: therefore affirm the decision of the district “The relocating person has the burden of court. AFFIRMED. Opinion from Court of proof that the proposed relocation is made in Civil Appeals, Division II by Fischer, V.C.J; good faith. If that burden of proof is met, the Barnes, P. J., and Wiseman, J., concur. burden shifts to the nonrelocating person to Friday, September 30, 2011 show that the proposed relocation is not in the best interest of the child.” Mother met her ini- 108,261 — Deloris Renee Banks, Petitioner/ tial burden of proof that the proposed reloca- Appellee, v. Kelly Wayne Banks, Respondent/ tion was in good faith. Consequently, it was Appellant. Appeal from a Decree of the Dis- Father’s burden to show that relocation was trict Court of Washington County, Hon. Kyra not in the best interest of the children. Further, Williams, Trial Judge. Respondent/Appellant the noncustodial parent objecting to reloca- (Husband) appeals the trial court’s Decree of tion “must meet a heavy burden to show that Dissolution of Marriage. On appeal, Husband circumstances justify reopening the question challenges the trial court’s finding that the of custody.” Kaiser v. Kaiser, 2001 OK 30, ¶ 33, lawn care business is marital property, subject 23 P.3d 278, 286. Although relocation can be to equitable division, and the trial court’s considered in determining a change of custo- valuation of that business. Based on our dy request, see 43 O.S. Supp. 2008 112.3(I), that review of the facts and applicable law, we factor alone will not justify a change in custo- affirm in part, reverse in part, and remand this dy. Kaiser, 2001 OK 30, ¶ 33, 23 P.3d at 286. case to the trial court with directions to recon- Father’s evidence failed to establish either sider the equitable division of marital prop- Mother’s unfitness or that the children may erty consistent with the Opinion. We deny suffer real and specific harm from the move. Wife’s request for appeal-related attorney fees. The order changing custody from Mother to AFFIRMED IN PART, REVERSED IN PART Father is reversed. The matter is remanded AND REMANDED WITH DIRECTIONS. with instructions to the district court to Opinion from Court of Civil Appeals, Divi- approve Mother’s proposed relocation of the sion II, by Barnes, P.J.; Fischer, V.C.J., and children and to make appropriate adjustment Wiseman, J., concur. to Father’s visitation as provided by law. 108,189 — Home Rescuers 5209 LLC, Plain- REVERSED AND REMANDED WITH tiff/Counter-Defendant, vs. David Ambrose, INSTRUCTIONS. Opinion from Court of Civil an individual; Wylda Ambrose, an individual; Appeals Division II, by Fischer, V.C.J.; Barnes, David Ambrose and Wylda Ambrose as Trust- P.J., and Wiseman, J., concur. ees of the Ambrose Family Revocable Trust; Thursday, September 29, 2011 and Kassie Box, an individual, Defendants/ Third-PartyPlaintiffs, and Craig A. Hodgens, 107,927 — Patrick Allen Norton, Petitioner/ an individual d/b/a Copperleaf Properties; Appellee, vs. Tori Lorraine Maddox, now Jennifer Hodgens, an individual d/b/a Cop- Gilmore, Respondent/Appellant. Appeal perleaf Properties; Home Rescuers, LLC, a from the District Court of Stephens County, domestic limited liability company; Home Hon. G. Brent Russell, Trial Judge. Tori Lor- Rescuers 9601, LLC, a domestic limited liabil- raine Maddox, now Gilmore (Mother), appeals ity company; Credit Solutions, LLC, a domes- a modification order of the district court ter- tic limited liability company; GMW Invest- minating joint custody and awarding sole ments, LLC a domestic limited liability com- custody of the parties’ minor child to Patrick pany; and Nickel & Dime Properties, LLC, a Allen Norton (Father) with reasonable visita- domestic limited liability company, Third- tion for Mother. Mother contends the district Party Defendants, and David Nichols, Inter- court erred because the order awarding cus- venor/Appellant, vs. Richard K. Holmes, tody to Father is not supported by the evi- Receiver/Appellee. Appeal from Order of the dence, and because it was error to exclude District Court of Tulsa County, Hon. Linda G. testimony of one of the witnesses at trial. We Morrissey, Trial Judge, denying the motion to find there is sufficient evidence in the record intervene filed by Nichols, individual man-

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2489 ager of third-party defendant limited liability action pursuant to the GTCA based on the facts company Nickel & Dime Properties, LLC. In White alleged, and that decision of the district seeking to intervene in this action as a matter court is affirmed. AFFIRMED IN PART, of right pursuant to 12 O.S. Supp. 2004 § 2024, REVERSED IN PART AND REMANDED FOR Nichols has not satisfied his pleading burden. FURTHER PROCEEDINGS. Opinion from His pleadings are silent regarding the “ade- Court of Civil Appeals, Division II by Fischer, quacy of representation” requirement imposed V.C.J.; Barnes, P.J., and Wiseman, J., concur. by Oklahoma law. Neither the record before 107,067 — Home Rescuers 5209 LLC, Plain- us in this appeal, nor the record in the com- tiff/Counter-Defendant, vs. David Ambrose, panion appeal, demonstrates that his counsel, an individual; Wylda Ambrose, an individual; who is currently representing third party David Ambrose and Wylda Ambrose, as Trust- defendants, has not or cannot adequately rep- ees of the Ambrose Family Revocable Trust; resent the interests of his clients. The district and Kassie Box, an individual, Defendants/ court did not err in denying Nichols’s motion Third-Party Plaintiffs/Appellees, and Craig A. to intervene. AFFIRMED. Opinion from Court Hodgens, an individual, Third-Party Defen- of Civil Appeals, Division II by Fischer, V.C.J.; dant/Appellant, and Jennifer H. Hodgens, an Wiseman, J., and Rapp, J. (sitting by designa- individual d/b/a Copperleaf Properties; Home tion), concur. Rescuers LLC, a domestic limited liability com- 107,711 — Todd White, an individual, Plain- pany; Credit Solutions, LLC, a domestic limited tiff/Appellant, vs. City of Del City, an Okla- liability company; GMW Investments, LLC, a homa municipality, Defendant/Appellee. domestic limited liability company; and Nickel Appeal from the District Court of Oklahoma & Dime Properties, LLC, a domestic limited County, Hon. Vicki L. Robertson, Trial Judge. liability company, Third-Party Defendants, and Plaintiff Todd White appeals an order of the dis- Richard K. Holmes, Receiver/Appellee. Appeal trict court partially dismissing his claims against from Order of the District Court of Tulsa Coun- the City. White was employed as a police officer ty, Hon. Linda G. Morrissey, Trial Judge. Third- for the City of Del City from November 2005 party defendant Hodgens appeals the district until August 2006 when his employment was court’s order denying his motion to vacate the terminated. White sought review of his termina- appointment of a receiver. This interlocutory tion pursuant to 11 O.S.2001 § 50-123. The City order is appealable as a matter of right pursu- formed a Board to review White’s termination. ant to Okla. Sup. Ct. R. 1.60(e), 12 O.S.2001, ch. The Board voted to deny White’s de novo appeal 2, app 1. This appeal is related to the appeal in of his termination. White filed a petition in the Case No. 108,189, which the Court also decides district court alleging various theories of recov- on this date. This appeal required the posting ery against the City related to his termination of a bond. Hodgens failed to post bond as and to post-termination events. The City moved required by Supreme Court Rule 1.66, and to partially dismiss White’s claims. The district Receiver has requested this Court to dismiss court granted City’s motion as to White’s the appeal. We have determined that dismissal claims appealing the Board’s decision pursu- is consistent with the purposes underlying ant to section 50-123, the claim that the Board Rule 1.66 and appropriate under the facts and of Review proceedings violated White’s due circumstances of this case. APPEAL DIS- process rights, and White’s claim that the City MISSED. Opinion from Court of Civil Appeals, defamed him. Treating the motion to dismiss Division II by Fischer, V.C.J.; Wiseman, J. and as a motion for summary judgment, we find Goodman, J. (sitting by designation ), concur. that section 50-123 applies to White as a proba- Tuesday, October 4, 2011 tionary officer. Because the City’s civil service system excludes White from its review proce- 105,920 — Sonny Lauren Harmon, Plaintiff/ dure, White is entitled to the protections pro- Appellant, v. Charles Damet, Jayne Yoakum- vided in section 50-123, including appellate Damet, Yoakum/Damet Funeral Home & First review in the district court of the Board’s deci- American Bank of Purcell, Defendants. Appeal sion affirming his termination. The district from an order of the District Court of McClain court order dismissing that appeal is reversed. County, Hon. Gary Barger, Trial Judge, dismiss- On remand, White may raise the due process ing Plaintiff’s case with prejudice. While Plain- issue in his appeal to the district court of the tiff was incarcerated, he filed an action for Board’s decision. However, we find that the replevin to recover property from Defendants. City cannot be held liable in a defamation The trial court dismissed the replevin action

2490 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 with prejudice because Plaintiff failed to comply ing as a surveillance supervisor for Employer with 12 O.S. § 2003.1. The trial court did not which is owned by the Osage Nation. Employer inform Plaintiff of its reason for rejecting the is insured for work-related injuries to its employ- petition. Plaintiff filed an application for writ of ees under a policy issued by Hudson Insurance. mandamus, but the Supreme Court recast his Because Employee worked for a tribe, the thresh- application as an appeal from a final order. We old issue for the court was whether it had juris- conclude the trial court erred in dismissing diction. Employee advances several arguments Plaintiff’s petition. Pursuant to § 2003.1, when a centering on its assertion that Hudson Insur- trial court finds a petition does not comply with ance, as opposed to Tribe, is subject to the Estop- the statute, “it shall be returned together with a pel Act. The Estoppel Act does apply to insurers copy of [§ 2003.1] and a statement of the reason as well as employers, but Oklahoma’s courts or reasons for its return.” Although § 2003.1 is lack jurisdiction unless the insurance policy pro- somewhat unclear, there is nothing in the lan- vides for “the payment of benefits as provided guage of the statute itself, nor have we found by the Workers’ Compensation Act.” The policy any in our review of the case law interpreting in this case does not do so. Based on our review this statute, that limits its requirements only to of the record and relevant law, we sustain the civil lawsuits asserting constitutional claims. We Workers’ Compensation Court’s order. SUS- decline to apply the statute so narrowly, absent TAINED. Opinion from the Court of Civil an indication of legislative intent to that effect. Appeals, Division II, by Wiseman, J.; Fischer, We conclude that § 2003.1, a provision which V.C.J., and Barnes, P.J., concur. specifically applies to an inmate “seeking relief (Division No. 3) in a civil action,” applies to Plaintiff’s petition Monday, September 19, 2011 and that Plaintiff must follow its requirements. However, we conclude that the trial court erred 108,742 — David King, Petitioner, vs. A & A in failing to inform Plaintiff of its reasons for Asphalt, Inc. and Westport Insurance Co., rejecting his petition. Without the court stating Respondents. Proceeding to Review an Order how his petition failed to comply with § 2003.1, of a Three-Judge Panel of The Workers’ Com- Plaintiff was given no opportunity to cure its pensation Court. Petitioner (Claimant) seeks defects. The trial court’s order dismissing Plain- review of an order of the Workers’ Compensa- tiff’s case with prejudice requires reversal. We tion Court three-judge panel (Panel). The trial vacate the dismissal and remand this case to the court denied the motion to suspend benefits trial court to comply with the requirements of pursuant to 85 O.S. Supp. 2005 §44. filed by 12 O.S. § 2003.1(D) as directed in this Opinion Respondent (Employer). The Panel vacated the and to afford Plaintiff an opportunity to meet trial court’s order finding that Employer is not the trial court’s notice of the petition’s defects. responsible for additional benefits to the injured We will not consider Plaintiff’s request for dis- worker “until a deficiency is shown to exist in qualification of the trial judge because he has the amount of settlement the worker received failed to follow the proper procedure for seek- from the third-party tortfeasor.” Claimant ing disqualification of a trial judge. REVERSED argues Employer is estopped from asserting its AND REMANDED WITH DIRECTIONS. Opin- §44 rights because Employer failed to raise/ ion from the Court of Civil Appeals, Division II, preserve the issue at the time of the trial on by Wiseman, J.; Fischer, V.C.J., and Barnes, P.J., permanent total disability (PTD). We find concur. Employer and its insurance carrier are entitled to the protections afforded in §44, specifically a Wednesday, October 5, 2011 suspension of workers’ compensation pay- 109,030 — John A. Waltrip, Petitioner, v. Osage ments to Claimant until a deficiency is shown Million Dollar Elm Casino &/or Osage Tribe, to exist in the amount of settlement he received Hudson Insurance Co., and the Workers’ Com- from the third-party tortfeasor, vis-a-vis what pensation Court, Respondents. Proceeding to he is entitled to under the Workers Compensa- review an order of the Workers’ Compensation tion Act. Claimant also asserts the panel’s Court, Hon. Owen T. Evans, Trial Judge, deny- order is too vague, indefinite and uncertain for ing jurisdiction and dismissing Employee’s judicial interpretation and therefore not subject claim. This is the latest in a series of cases involv- to appellate review because it fails to specifi- ing employees of Indian tribes seeking to invoke cally address the estoppel issue. The record the jurisdiction of Oklahoma’s state workers’ reflects estoppel was the only issue raised compensation court. Employee fell while work- before the trial court and the three-judge panel.

Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2491 Despite the lack of a specific finding on the sole dant/Appellant, Clovis Martins (Father), seeks issue of estoppel, the Panel’s determination review of the trial court’s order issuing the implicitly rejected Claimant’s estoppel argu- decree of divorce and dissolution of marriage, in ment in favor of Employer. The Panel’s order is which Father was ordered to post a visitation subject to judicial interpretation and review. bond with the Pushmataha Court Clerk one No reversible error being shown, the Panel’s week prior to the minor child’s scheduled visita- order is SUSTAINED. Opinion by Mitchell, P.J.; tion with his father in Brazil, the bond to be Joplin, J., and Buettner, J., concur. released upon the return of the child to the cus- todial parent, Shari Reich-Martins (Appellee/ 108,955 — Stacey House, Plaintiff/Appel- Mother) in Oklahoma. Father also objected to lant, vs. Integris Bass Health Center, Inc. and the valuation of the marital home in his petition Baptist Rural Health Systems, Inc., Defendant/ in error, but did not further pursue this allega- Appellee. Appeal from the District Court of tion of error in his brief in chief. On appeal, Garfield County, Oklahoma. Honorable Den- Father alleges the visitation bond is excessive on nis Hladik, Judge. Plaintiff/Appellant Stacey its face, is not supported by evidence in the House (House) sued Defendant/Appellee Inte- record, is arbitrary and not related to Father’s gris Bass Baptist Health Center, Inc. and Bap- ability to pay or the risk of retaining the child in tist Rural Health Systems, Inc. (Hospital) for Brazil, which Father claims does not exist. Father medical negligence. Hospital filed a motion for contends the bond effectively precludes the summary judgment on the ground that it was exercise of his visitation with his son and oper- undisputed House had not produced a medical ates against the child’s best interests. Having expert and therefore could not establish a prima reviewed the record, the order of the district facie case for medical negligence. House sought court is affirmed. Custody and visitation are additional time to supplement discovery. The matters of equitable cognizance and are left to trial court denied House’s request for a con- the sound discretion of the trial court. Kahre v. tinuance and motion to supplement discovery Kahre, 1995 OK 133, 916 P.2d 1355. The hearing at and granted summary judgment in favor of the which the matter of the custody bond was Hospital. We AFFIRM. Opinion by Buettner, J.; addressed was not transcribed and is not avail- Mitchell, P.J., and Joplin, J., concur. able for this court’s review, nor was Father pres- 109,398 — In the Matter of T.W.L. and L.A.Z., ent for the hearing. As a result, the record is Alleged Deprived Children. State of Oklaho- minimal in this case. Oklahoma courts have pre- ma, Petitioner/Appellee, vs. Stacy Williamson, viously permitted the imposition of a bond in Respondent/Appellant. Appeal from the Dis- custody matters to bring about compliance with trict Court of Carter County, Oklahoma. Hon- the court’s orders. See Kenworthy v. Kenworthy, orable Dennis Morris, Judge. Respondent/ 1946 OK 320, 174 P.2d 587; Klutts v. Blackbird, Appellant Stacy Williamson (Mother) appeals 1946 OK 266, 174 P.2d 361; Mattox v. Mattox, 1928 from the trial court’s Order terminating her OK 160, 264 P. 989. The record in this case is parental rights in T.W.L. and L.A.Z. (collec- inadequate to determine if this bond is unrea- tively, Children). Clear and convincing evi- sonable and unwarranted. Father bears the undi- dence supports the trial court’s finding that vided responsibility to provide this court with a Mother failed to correct the conditions leading record that will adequately demonstrate the to the deprived adjudication and that termina- error he alleges in the district court’s decree. tion is in Children’s best interests. We AFFIRM. Marsh v. Marsh, 2007 OK CIV APP 60, 165 P.3d Opinion by Buettner, J.; Mitchell, P.J., and Jop- 358, 360. Absent a complete record, this court lin, J., concur. cannot presume the district court erred. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, 497. Friday, September 23, 2011 Father has failed to demonstrate the district court’s decision is clearly against the weight of 108,006 — Shari Lynn Reich-Martins, Plain- the evidence so as to constitute an abuse of dis- tiff/Appellee, vs. Clovis Augusto Portella Mar- cretion. The decision of the district court is tins, Defendant/Appellant. Appeal from the AFFIRMED. Opinion by Joplin, J.; Mitchell, P.J., District Court of Pushmataha County, Oklaho- and Buettner, J., concur. ma. Honorable Gary L. Brock, Judge. Defen-

2492 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 CLASSIFIED ADS

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CITY LAW FIRM Chubbuck Smith & Duncan seeks Very busy, fast-paced office offering competitive salary, additional lawyer to augment its fast-growing trial medical insurance, dental insurance and 401K. Must be practice. Salary commensurate with experience. Send pleasant and skilled at multi-tasking. Send resume and resume and salary requirements to Law Office Man- cover letter to P.O. Box 1615, Norman, OK 73070. ager, 119 N. Robinson Ave., Ste. 820, Oklahoma City, FENTON FENTON SMITH RENEAU & MOON, an OK 73102. AV-rated defense firm is seeking an associate attorney LONG ESTABLISHED AV-RATED OKLAHOMA CITY with 0-3 years experience to assist in its civil litigation LAW FIRM is seeking an experienced and highly-moti- department. The position requires excellent legal vated claimant’s attorney to assume a significant research and writing skills. Deposition experience a claimant’s workers’ compensation practice. This is an plus. Submit your resume, transcript and writing unusual opportunity for someone who is ambitious sample to Denise Abston, 211 N. Robinson, Ste. 800N, and wants to step into an established practice with an Oklahoma City, OK 73102. extensive client base. Please send confidential resume to “Box P,” Oklahoma Bar Association, P.O. Box 53036, POSITIONS WANTED Oklahoma City, OK 73152. FORMER LICENSED ATTORNEY WITH OVER 30 NELSON ROSELIUS TERRY & MORTON is seeking YEARS civil practice experience seeks position with an attorney with 3-5 years experience in civil trial prac- law firm or corporation. Contact Jim Golden at tice, insurance litigation and insurance coverage. Sub- [email protected] or (405) 209-0110. mit resume, cover letter and writing sample to Derrick DeWitt at P.O. Box 138800, Oklahoma City, OK 73113. CLASSIFIED INFORMATION ASSOCIATE ATTORNEY: AV-rated, downtown Okla- CLASSIFIED RATES: One dollar per word per inser- homa City litigation firm has an immediate position tion. Minimum charge $35. Add $15 surcharge per is- available for an associate attorney. A qualified candi- sue for blind box advertisements to cover forward- date must have solid litigation experience, including a ing of replies. Blind box word count must include “Box proven aptitude for performing legal research, drafting ____ , Oklahoma Bar Association, P.O. Box 53036, Okla- motions and briefs and conducting all phases of pre- homa City, OK 73152.” Display classified ads with bold trial discovery. Salary is commensurate with experi- headline and border are $50 per inch. See www.okbar.org for ence. Please send resume to [email protected]. issue dates and Display Ad sizes and rates. DEADLINE: Tuesday noon before publication. Ads must be SONIC CORP. IS SEEKING A LEGAL ASSISTANT prepaid. Send ad (e-mail preferred) in writing stating number with 3 to 5 years of real estate experience.Primary of times to be published to: responsibilities will include legal support for the Jeff Kelton, Oklahoma Bar Association development of company restaurants and the manage- P.O. Box 53036, Oklahoma City, OK 73152 ment of a large portfolio of properties. Other duties E-mail: [email protected] include stock option administration and general cor- porate matters. Please send your resume by email to Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed [email protected] or by mail to Sonic therein, nor shall the publication of any advertisement Corp., 300 Johnny Bench Dr., OKC, OK 73104, Attn: be considered an endorsement of the procedure or ser- People Dept. Sonic Corp., a public company, operates vice involved. All placement notices must be clearly non- and franchises the largest chain of drive-in restaurants discriminatory. in the United States.

2494 The Oklahoma Bar Journal Vol. 82 — No. 27 — 10/15/2011 Vol. 82 — No. 27 — 10/15/2011 The Oklahoma Bar Journal 2495