Volume 76 N No. 8 N Mar. 5, 2005

Court Material 578 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005

OFFICERS & BOARD OF GOVERNORS Michael D. Evans, President, Frederick William R. Grimm, President-Elect, Tulsa EVENTS CALENDAR Rick Bozarth, Vice President, Taloga Harry A. Woods Jr., Immediate MARCH Past President, Oklahoma City Stephen D. Beam, Weatherford 7 OBA Work, Life Balance Task Force Meeting; 12 p.m.; A. Camp Bonds Jr., Muskogee Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Dietmar K. Caudle, Lawton Center, Tulsa; Contact: Melody Jester (405) 231-5484 J. William Conger, Oklahoma City OBA Alternative Dispute Resolution Section Meeting; 3 p.m.; Michael W. Hogan, McAlester Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Jerome A. Holmes, Oklahoma City R. Victor Kennemer III, Wewoka Center, Tulsa; Contact: Daniel Woska (405) 235-1401 Steven R. Mackey, Tulsa 8 OBA Civil Procedure Committee Meeting; 3 p.m.; Oklahoma Bar Mike Mordy, Ardmore Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Jon K. Parsley, Guymon Contact: Alison Cave (405) 272-9700 Robert B. Sartin, Tulsa Linda S. Thomas, Bartlesville Hudson-Hall-Wheaton Chapter of American Inns of Court; Luke Gaither, Henryetta, Chairperson, 5:30 p.m.; Fed. Bldg., 333 W. 4th Street, Tulsa; Contact: Leigh OBA/Young Lawyers Division Reaves at [email protected] or visit our Web site at www.hudsonhallwheaton.com BAR CENTER STAFF John Morris Williams, Executive Director; Robert J. Turner Inn of Court; 5:30 p.m.; Oklahoma Bar Center, Dan Murdock, General Counsel; Donita Bourns Oklahoma City; Contact: Lori Fagan (405) 609-5400 Douglas, Director of Educational Programs; 10 OBA Strategic Planning Committee Meeting; 1 p.m.; Oklahoma Carol A. Manning, Director of Public Information; Bar Center, Oklahoma City; Contact: Bill Grimm (918) 584-1600 Craig D. Combs, Director of Administration; Gina L. Hendryx, Ethics Counsel; Jim Calloway, OBA Mentor Committee Meeting; 3 p.m.; Oklahoma Bar Center, Director of Management Assistance Program; Rick Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Loomis, Director of Information Systems; Beverly S. David Poarch (405) 325-0702 Petry, Administrator MCLE Commission; Elizabeth K. 11 OBA Evidence Code Committee Meeting; 2 p.m.; Oklahoma Bar Davis, Coordinator Law-related Education; Loraine Center, Oklahoma City; Contact: Leo Whinery (405) 325-4819 Dillinder Farabow, Nathan Lockhart and Mike Speegle, Assistant General Counsels; Tony R. Blasier, OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Chief Investigator; Robert D. Hanks, Ray Page and Center, Oklahoma City and OSU Tulsa; Contact: Keith Jones Jim Yandell, Investigators (918) 747-4600 Nina Anderson, Manni Arzola, Jenn Barrett, Jo 16 OBA Volunteer Night at OETA; 5:45 p.m.; OETA Studio, Beall, Cheryl Beatty, Melissa Brown, Brenda Card, Oklahoma City; Contact: Carol Manning (405) 416-7016 Sandy Cowden, Sharon Dotson, Johnny Marie 18 OBA Bench and Bar Committee Meeting; 2 p.m.; Oklahoma Bar Floyd, Matt Gayle, Susan Hall, Suzi Hendrix, Adrian March, Heidi McComb, Jeanne Minson, Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Misty Mitchell, Wanda Reece-Murray, Sandy Neal, Contact: Jack Brown (918) 581-8211 Patti Ownbey, Tim Priebe, Lori Rasmussen, Mark 19 OBA Title Examination Standards Committee Meeting; Schneidewent, Tiffany Toole & Roberta Yarbrough 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Kraettli EDITORIAL BOARD Epperson (405) 840-2470 Editor in Chief, John Morris Williams 23 Luther Bohanon Inn of Court; 5:30 p.m.; Oklahoma Bar Center, News & Layout Editor, Carol A. Manning Oklahoma City; Contact: Theodore Roberts (405) 325-4699 Editor, Ronald Main, Tulsa Associate Editors: Steve Barnes, Poteau; Martha 24 OBA Legal Intern Committee Meeting; 3 p.m.; Oklahoma Bar Rupp Carter, Tulsa; Luke Gaither, Henryetta; Center, Oklahoma City and Tulsa County Bar Center, Tulsa; D. Renee Hildebrant, Oklahoma City; O.B. Contact: H. Terrell Monks (405) 733-8686 Johnston III, Vinita; John Munkacsy, Lawton; 25 OBA Board of Governors Meeting; Tulsa; Contact: John Morris Julia Rieman, Enid; James Stuart, Shawnee Williams (405) 416-7000 and Judge Lori M. Walkley, Norman NOTICE of change of address (which must be in writing and signed by the OBA member), undeliv- erable copies, orders for subscriptions or ads, news The Oklahoma Bar Association’s official Web site: www.okbar.org stories, articles and all mail items should be sent to THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar the Oklahoma Bar Association, P.O. Box 53036, Association. All rights reserved. Copyright© 2005 Oklahoma Bar Association. Oklahoma City, OK 73152-3036. The design of the scales and the “Oklahoma Bar Association” encircling the 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 FOUR TIMES A Continuing Legal Education (405) 416-7006 MONTH IN JANUARY, THREE TIMES A MONTH IN FEBRUARY, MARCH, APRIL, Ethics Counsel (405) 416-7083 MAY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER AND DECEMBER AND General Counsel (405) 416-7007 BIMONTHLY IN JUNE AND JULY EFFECTIVE JAN. 1, 2003. BY THE OKLAHOMA BAR Law-related Education (405) 416-7005 ASSOCIATION, 1901 N. LINCOLN BOULEVARD, OKLAHOMA CITY, OKLAHOMA Lawyers Helping Lawyers (800) 364-7886 73105. PERIODICALS POSTAGE PAID AT OKLAHOMA CITY, OK. POSTMASTER: Mgmt. Assistance Program (405) 416-7008 SEND ADDRESS CHANGES TO THE OKLAHOMA BAR ASSOCIATION, P.O. BOX Mandatory CLE (405) 416-7009 53036, OKLAHOMA CITY, OK 73152-3036. SUBSCRIPTIONS ARE $55 PER YEAR EXCEPT FOR LAW STUDENTS REGISTERED WITH THE OKLAHOMA BAR ASSOCI- OBJ & Public Information (405) 416-7004 ATION, WHO MAY SUBSCRIBE FOR $25. ACTIVE MEMBER SUBSCRIPTIONS ARE Board of Bar Examiners (405) 416-7075 INCLUDED AS A PORTION OF ANNUAL DUES. ANY OPINION EXPRESSED HEREIN Oklahoma Bar Foundation (405) 416-7070 IS THAT OF THE AUTHOR AND NOT NECESSARILY THAT OF THE OKLAHOMA BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS.

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 579 580 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 OKLAHOMA BAR ASSOCIATION

table of contents Mar. 5, 2005 • Vol. 76 • No. 8 page

579 EVENTS CALENDAR

582 BAR NEWS: OBA NOMINATING PETITIONS

583 INDEX TO COURT OPINIONS

585 SUPREME COURT OPINIONS

599 COURT OF CRIMINAL APPEALS

603 COURT OF CIVIL APPEALS

607 PROFESSIONAL RESPONSIBILITY COMMISSION AND PROFESSIONAL RESPONSIBILITY TRIBUNAL ANNUAL REPORT

615 MANDATES

619 DISPOSITION OF CASES OTHER THAN BY PUBLICATION

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 581 BAR NEWS

OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)

OFFICERS VICE PRESIDENT

JEROME A. HOLMES, OKLAHOMA CITY Petitions have been filed nominating Jerome A. Holmes for election of Vice President of the Board of Governors of the Oklahoma Bar Asso- ciation for a one-year term beginning January 1, 2006. A total of 361 signatures appear on the petitions. County Bar Resolutions Endorsing Nominee: Custer County, McCurtain County, Payne County, Washington County

582 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 Index To Opinions Of Supreme Court

2004 OK 94 OKLAHOMA STATE BOARD OF EXAMINERS OF CERTIFIED SHORTHAND REPORTERS, Petitioner, v. D.J. THOMPSON, Respondent. No. 99,944...... 585 2005 OK 8 B-STAR, INC., an Oklahoma corporation, Appellee, v. POLYONE CORPORA- TION, formerly M.A. HANNA COMPANY, a Delaware corporation, Appellant. No. 97,148...... 585 2005 OK 9 STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Phillip John Anderson, Respondent. SCBD No. 4775 ...... 585 2005 OK 10 NAOMI LEE THOMASON, Plaintiff/Appellant, v. RONALD M. PILGER, ALTERNATIVE TRANSPORT, INC., and GREAT WEST CASUALTY COMPANY, Defendants/Appellees. No. 98,281 ...... 590 2005 OK 11 HOWARD LEE HILL, JR., Appellant, v. HEATHER DIANE BLEVINS, and D.S., Infant, Appellees. No. 100,504 ...... 593 Index To Opinions Of Court Of Criminal Appeals

2005 OK CR 1 NATALIE DAWN BLADES, Appellant, vs. STATE OF OKLAHOMA, Appellee. No. RE-2004-363 ...... 599 Index To Opinions Of Court Of Civil Appeals

CASES ASSIGNED TO DIVISIONS 1 AND 3 OF THE COURT OF CIVIL APPEALS ...... 603 CASES ASSIGNED TO DIVISIONS 2 AND 4 OF THE COURT OF CIVIL APPEALS ...... 604 CHRIS JOHNSON and SUZETTE JOHNSON, Husband and Wife; GILBERT L. DuPERTUIS and PATRICIA A. DuPERTIUS, Husband and Wife; and CHAD MILLER, Plaintiffs/Appellants, vs. JULIA AUGUST and JULIA AUGUST d/b/a TNT ENTERPRISES, Defendants/Appellees. No. 99,884 ...... 605

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 583 584 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 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)

2004 OK 94 which reads “A video deposition contain- ing an exhibit relating to B-Star’s damages OKLAHOMA STATE BOARD OF was presented as part of the evidence in EXAMINERS OF CERTIFIED this case.” SHORTHAND REPORTERS, Petitioner, v. D.J. THOMPSON, Respondent. DONE BY ORDER OF THE SUPREME COURT THIS 18th day of February, 2005. No. 99,944. February 24, 2004 /s/ Joseph M. Watt CORRECTION ORDER JOSEPH M. WATT It is hereby ordered that the opinion in the Chief Justice above styled and numbered cause which was 2005 OK 9 adopted for publication on December 14, 2004, is corrected to include the following addition STATE OF OKLAHOMA, ex rel. to page one, between “LICENSE OKLAHOMA BAR ASSOCIATION, REVOKED”and “OPINION”: Complainant, v. Phillip John Anderson, Respondent. David L. Kinney, ASSISTANT ATTORNEY GENERAL, Oklahoma City, Oklahoma, for SCBD No. 4775. February 22, 2005 Oklahoma State Board of Examiners of As Corrected: February 24, 2005; Certified Shorthand Reporters, Petitioner; As Corrected: February 28, 2005 D. J. Thompson, Pro Se, Tallahassee, Flori- ORIGINAL PROCEEDING FOR ATTORNEY da, for Respondent. DISCIPLINE In all other respects, the opinion of Decem- ¶0 Complainant filed a Complaint alleging ber 14, 2004, shall remain unaffected by this three counts of attorney misconduct by correction order. Respondent warranting discipline for having sexual relations with a client. The Trial Panel of DONE BY ORDER OF THE SUPREME the Professional Responsibility Tribunal rec- COURT THIS 24th DAY OF FEBRUARY, 2005. ommended a suspension of Respondent’s /s/ Joseph M. Watt license for one year, in addition to the costs of JOSEPH M. WATT this proceeding. Chief Justice SUSPENSION OF ONE YEAR AND COSTS 2005 OK 8 OF THIS PROCEEDING. B-STAR, INC., an Oklahoma corporation, Mike Speegle, Assistant General Counsel, Appellee, v. POLYONE CORPORATION, OKLAHOMA BAR ASSOCIATION, Okla- formerly M.A. HANNA COMPANY, a homa City, Oklahoma, for Complainant; Delaware corporation, Appellant. Phillip John Anderson, Pro Se, Nixa, Missouri, No. 97,148. February 18, 2005 for Respondent. CORRECTION ORDER OPINION The opinion filed in this matter on February WATT, Chief Justice: 15, 2005, is corrected as follows: ¶1 The Complainant, Oklahoma Bar Associ- The first sentence in ¶17 of the opinion ation (the Bar), filed a complaint against which reads “A video deposition was con- Respondent, Phillip John Anderson, a licensed taining an exhibit relating to B-Star’s dam- attorney in Oklahoma, pursuant to Rule 6, ages presented as part of the evidence in Rules Governing Disciplinary Proceedings this case.” is replaced by a new sentence (RGDP), 5 O.S. 2001, Ch. 1, App. 1-A., for vio-

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 585 lations of the Oklahoma Rules of Professional FACTS Conduct (ORPC), 5 O.S. 2001, Ch. 1, App. 3-A. ¶6 Stroud testified about her medical condi- ¶2 The Bar alleged Respondent committed tion at the time Anderson arrived at her house, specific acts of professional misconduct in purportedly to have her sign some papers for three counts of the complaint. In each count, her divorce. She testified she was on strong the Bar alleged Respondent violated Rule 1.3, pain medication, OxyContin, following facial RGDP,1 and Rule 8.4, ORPC.2 In the complaint, surgery at the time, and that the medication the Bar alleged the complaining witness, Lee clouded her judgment. She stated she also took Ann Stroud, accused Respondent of sexual Ritalin for Attention Deficit Disorder, but did assault against her in her home (Count I); of not mix the medications if she was going out. committing the crime of rape against her in her She testified he asked her to rub his back and home (Count II); and of committing the crime suggested, crudely, that she needed to have sex of forcible oral sodomy against her in her with him. She stated he pushed her down on home (Count III). the couch and that they struggled while he held her down. TRIAL PANEL REPORT ¶7 Stroud testified she told him about the ¶3 The Trial Panel notes in its report that the Tulsa lawsuit she had filed against a psychi- rape charges filed against Respondent were atric hospital, Laureate, and a psychiatrist subsequently dismissed. The Trial Panel there, Dr. Vantine, who treated her for an eat- included in its report the facts that Respondent ing disorder. She alleged Dr. Vantine had initi- admitted having a sexual relationship with ated a sexual relationship with her during her Stroud, and that he had had sex with her for therapy, at a time when she was extremely vul- the purpose of being hired to handle a medical nerable. She alleged the relationship had 3 malpractice case for her. resulted in the destruction of her marriage. At ¶4 The Trial Panel heard the live testimony the time she hired the Respondent for filing of Stroud and found that Respondent violated post-divorce contempt proceedings against her the ORPC by taking advantage of his position former husband, she was looking for another of trust and power over a client in those cir- lawyer to handle the Tulsa lawsuit. cumstances. The Panel also heard evidence of ¶8 Stroud testified there were three to four prior complaints of a sexual nature brought by sexual encounters with Respondent. She others against Respondent, but which were not explained that she felt she had no choice pursued. The Panel cited State ex rel OBA v. because her parents were paying her legal fees, Robert F. Groshon, 2003 OK 112, 82 P.3d 99, in and she needed the child support and alimony. which a public censure and costs of the pro- She did not hire another attorney following the ceedings were imposed, finding it similar to alleged sexual assaults because she felt there the instant case. However, the Panel is of the was nothing she could do about it, again stat- opinion that Respondent’s misconduct in the ing her parents were paying her legal fees. instant case exceeded that of Groshon. It rec- Moreover, she had already had two previous ommends a suspension of two years and one lawyers. Because of the nature of the Tulsa day and the imposition of the costs of this pro- lawsuit, she said it would be “totally unbeliev- ceeding. able” that Respondent attacked her. She was ¶5 In Complainant’s Brief-in Chief, the Bar embarrassed and humiliated and felt she had requests “that an appropriate period of sus- no options. She also cited her medical condi- pension be imposed on the Respondent for the tion at the time, stating she was trying to protection of the public and the purification of recover from surgery and was taking medica- the Bar.” The Bar contends that there were tion. She blamed her delay in reporting the sexual assaults on her state of mind at the time. “clear and convincing violations of every ethics rule mentioned in Oklahoma Ethics ¶9 Stroud stated she thinks the criminal Opinion No. 311”, adopted October 16, 1998, charges against the Respondent were reduced which is attached to its brief.4 The Bar also con- and/or dropped because his attorney obtained tends Stroud was very vulnerable during the her medical records, and the police thought time Respondent represented her and that she would be humiliated and embarrassed if Respondent was engaging in the same conduct they were made public. She also testified that as Dr. Vantine. the medical records were obtained without her

586 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 permission or authorization. When she fired admitted that you’ve done wrong. You’ve him, she alleged he told her he would insure admitted that you should be disciplined, and she lost the Laureate case. He also told her that you’ve admitted that or you’ve conceded that his wife would leave him, and that it would you’ve lost so much, but you keep saying her destroy his family and his work. allegations cost me and what she’s done cost ¶10 Anderson testified he currently lives in you, but you’ve also said that after you Missouri at his parents’ house. He is not secured the Tulsa case, you continued to have licensed in Missouri, but intends to become sex with her on occasion. Truly, what I would licensed, pending the resolution of this case. like to hear is “my actions caused me to lose He stated he learned from firsthand experience everything,” - - the reason for the discipline. that it is a bad idea to become involved with Do you take responsibility in that way - - or do clients. He testified as to two previous clients you still - - with whom he had had a relationship. He began dating his wife while she was a client, A. In this room, no. and then she was hired as a legal assistant. He Q. Do you still believe it’s her allegations stated many female clients had approached that cost you everything? him about having a sexual relationship. A. Her false allegations got rape charges ¶11 He testified he thought there was a spe- filed against me, got me on the front cific ethics rule against having a personal rela- tionship with clients, although he did not page of the paper and got me in the know which rule it was. He stated he learned newspaper, and that’s outside of this he should not engage in personal relationships room. Inside of this room is my law with clients because of the toll it takes on him license and my practice of law, and her as the attorney and as a person. false allegations of this room hurt a lot of people other than me, and I’m very ¶12 Although Respondent admitted having angry about that. As far as my law sex with Stroud, he denied the facts as she tes- license is concerned, as far as me having tified regarding the first sexual encounter. He sex with her, which as far as I’m con- testified Stroud went after him for sex, but that he did not pressure her. He admitted he had cerned isn’t really what this needs to be sex with her in order to become hired to repre- about. I didn’t rape her. I didn’t assault sent her in the Vantine case. He testified that he her. I had consensual sex with some- previously thought Dr. Vantine drugged her body who read the contract, was my and took advantage of her, but that he changed client, and that was wrong, and that’s his opinion after talking to her opponent. He what I should be disciplined for. explained why it was different for Dr. Vantine . . . to have sex with Stroud while treating her, than for Respondent to have sex with her Q. And I think we’ve been along this path while representing her. He indicated the differ- for a while, so let me go back and try ence was in the length of time of the profes- and rephrase it. Initially I was trying to sional relationship, i.e., Vantine treated her for determine what your level of remorse five years, and the fact that Stroud did not was. That’s what started this line of depend on Respondent. However, he acknowl- questioning, and this question actually edged both he and Dr. Vantine were wrong is these rules that you violated were because they were both professionals and had designed to protect clients such as Ms. sex with her during their professional relation- ships. In that sense, he admits it is similar. Stroud. The fact that you violated them means that she is a victim. Do you agree ¶13 During Respondent’s testimony, he was with that? asked questions by Ms. Bates of the PRT to determine the level of Respondent’s remorse A. Yes. involved in his actions with Stroud. Ms. Bates Q. And having said that, I do understand asked him: that you see yourself as a victim as well, Q. But, Mr. Anderson, I would like to deter- and you undoubtedly have lost a lot. mine what your level of remorse is. You’ve Okay, I think that’s all. Thank you.

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 587 DISCUSSION ¶17 Comparing Groshon to the instant case, however, we have no similar evidence of miti- ¶14 In accordance with determining Respon- gation. The remorse Respondent acknowl- dent’s level of remorse, the PRT also asked edged was expressed only in terms of what Respondent questions to consider whether he Stroud’s accusations cost him. He also testified took responsibility for his actions. Initially, that his motive in having sex with Stroud was Respondent’s version of his first sexual to get the Vantine case, claiming it was pretty encounter with Stroud was diametrically clear she would hire him if they had sex. This opposed to her testimony. He stated she asked was not an isolated event, as there was evi- him over; that she told him she wanted to have dence that other female divorce clients made sex with him because she had not been with a similar accusations against him. man for over a year; and that she was wearing a Victoria’s Secret outfit when he arrived. He ¶18 Respondent testified he believed at the stated she had consensual sex with him and time that a rule did exist in the ORPC which that she was not sad that her marriage had prohibited a lawyer from engaging in a sexual ended. Also, he alleged she told him she had relationship with a client, although he did not sex with a friend of her son’s and that she know which rule. He acknowledged such a smoked marijuana with her son. He stated he relationship was wrong because it is not in the did not know she was taking OxyContin until client’s best interest to have sex with the his preliminary hearing. He blamed the failure lawyer representing her. Having so acknowl- of his marriage and the loss of his practice on edged this, however, this Court notes that the fact Stroud accused him of rape which led Respondent blames Stroud for the sexual rela- to his arrest and negative publicity. tionship. However, it is not this Court’s duty to oversee the conduct of Respondent’s clients. ¶15 In bar disciplinary cases, this Court exer- cises exclusive original jurisdiction as a licens- ¶19 We also note Respondent acknowledges ing agent. State ex rel. OBA v. Gassaway, 1991 his behavior was wrong. However, the evi- OK 33, 810 P.2d 826, 830 (Okla. 1991). The ulti- dence overwhelmingly supports the PRT’s mate responsibility for deciding whether mis- finding that Respondent used sex in an attor- conduct has occurred and what discipline is ney-client representation to advance his own appropriate rests with this Court. State ex rel. cause with a particularly vulnerable client. He Oklahoma Bar Association v. Giessmann, testified that he feels remorse for having sex 1997 OK 146, ¶¶ 11, 948 P.2d 1227, 1229. Our with a client and takes responsibility for his duty to review the facts to determine if an eth- actions. In contrast, however, he also testified ical violation occurred is non-delegable. State that Stroud’s accusations caused him to lose ex rel. Oklahoma Bar Association v. Taylor, everything, which caused him remorse. We 2000 OK 35, ¶¶ 4, 4 P.3d 1242, 1247. Our review find his testimony about how Stroud ruined of the record is de novo, State ex rel. OBA v. his life belies his professed remorse. He sees Patmon, 1998 OK 91, 975 P.2d 860, State ex rel. himself as the victim. OBA v. Wolfe, 1996 OK 75, ¶¶ 26, 919 P.2d 427, CONCLUSION 432, in which we conduct a non-deferential, full-scale examination of all relevant facts; the ¶20 We find the Respondent violated ORPC recommendations of the trial panel are neither 8.4, as conduct prejudicial to the admission of justice. See OBA v. Sopher, 1993 OK 55, 852 binding nor persuasive. State ex rel. Okla- 5 homa Bar Association v. Taylor, supra. P.2d 707. Under Rule 1.3, RGDP, it is not required that Respondent be convicted of a ¶16 In State ex rel. Oklahoma Bar Associa- crime before discipline is imposed. The Acts of tion v. Groshon, supra, an attorney attempted Respondent in pursuing this sexual relation- to flirt with, hug, kiss and touch in a sexual ship with Stroud is “contrary to prescribed manner, his divorce client. His actions were standards of conduct” which “would reason- unwelcome acts toward a client in a vulnerable ably be found to bring discredit upon the legal position. This Court ordered the Respondent profession.” See Rule 1.3, RGDP. In addition, to be disciplined by a public censure, in addi- although the Bar did not specifically allege in tion to the costs of the proceeding. That disci- its complaint a violation of ORPC 2.1, requir- pline was imposed because the Respondent ing independent professional judgment in rep- showed remorse and because the incident resenting a client, the Legal Ethics Committee appeared to be an isolated event. gave the following advice in Ethics Opinion

588 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 311 regarding Rule 2.1 which is particularly 3. The medical malpractice case was brought by Stroud against Dr. Jerry Vantine, a psychologist at Laureate Psychiatric Hospital in Tulsa, applicable to this case. It stated: with whom she had a sexual relationship during her treatment. 4. The Ethics Opinion answered the inquiry: If a lawyers (sic) advice to a client is based, Will a lawyer who engages in sexual relations with a client violate in part, upon an effort to initiate or to pro- the Rules of Professional Conduct “Rules” if the lawyer has no pre- existing consensual sexual relationship with the client? mote sexual relations with a client, the While recognizing the Rules provide no express prohibition lawyer violates the Rules. Sexual relations against sexual relationships with a client with whom no previous con- sensual sexual relationship existed, the OBA Ethics Committee opined with a client may undermine the objective there is a “significant probability” that such conduct will result in a detachment which is a normal incident of violation of one or more of the rules. The Committee cited ORPC 1.1, 1.7, 1.8, 2.1 and 8.4(d). independent professional advice. This is 5. In Sopher, this Court considered appropriate discipline for sex- particularly true in situations where the ual misconduct by an attorney. The offense there was the unwelcome offensive touching of a client and her mother. This Court examined lawyer, in attempting to initiate or to pro- other jurisdictions because of a lack of case authority in Oklahoma. mote sexual relations, takes action or ren- This Court cited numerous cases and the level of punishment for a ders advice which is not in the clients (sic) particular offense. We noted a two-year suspension was deemed appropriate discipline in a case from New Hampshire for which the best interests. attorney had engaged in sexual relations with a client under the care of a psychiatrist who was emotionally fragile. See Drucker’s Case, 133 ¶21 This Court accepts the findings in the N.H. 326, 577 A.2d 1198 (1990). Sopher was disciplined with a public Trial Panel Report that Respondent violated reprimand. the ORPC “by taking advantage of his position OPALA, J., dissenting in part. of trust and the position of power over a client under the circumstances.” We further agree ¶1 This case is neither about rape nor about with the Trial Panel that Respondent’s conduct remorse. It is all about a dispassionate assess- exceeded that shown in Groshon, where a pub- ment of appropriate discipline to be imposed lic reprimand was imposed as discipline. We upon a lawyer who admits to having had a impose a suspension of one year, plus costs of short-lived affair with a client, a then-vulnera- this proceeding. ble adult female with questionable capacity for consenting to sexual intimacy. ¶22 Respondent is suspended from the prac- tice of law for one year from the date this opin- ¶2 I join and enthusiastically welcome the ion is filed. Respondent is further assessed the Bar’s increased protection of the lawyers’ sum of $1913.72 as costs of this proceeding to clientele from sexual predators in the profes- be paid within ninety (90) days after this opin- sion. Administering excessive discipline in a ion is filed. few cases is not the way to accomplish the Bar’s desired goal. Consistent and evenhanded ¶23 SUSPENSION OF ONE YEAR AND enforcement of discipline is to be preferred COSTS OF THIS PROCEEDING. over an occasional splash of overpowering fer- 1 WATT, C.J., WINCHESTER, V.C.J., LAVEN- vor. Law is not a moral discipline that meas- DER, HARGRAVE, KAUGER, EDMONDSON, ures the degree of one’s civil culpability by the COLBERT, JJ. - concur. ecclesiastical standards for gauging the gravity of man’s sin.2 Viewed in realistic terms, law is OPALA, J. - dissents in part. an instrument of social control with its own 3 TAYLOR, J. - dissents. norms of fairness and propriety. “I would impose a suspension of two years ¶3 I concur in today’s pronouncement that and one day.” subjects the respondent to professional disci- pline but dissent from imposition of the 1. Rule 1.3, Discipline for Acts Contrary to Prescribed Standards of lengthy suspension. Respondent’s license Conduct, provides: should be suspended for a shorter period. The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capac- ity, or otherwise, which act would reasonably be found to bring dis- 1. State ex rel. Oklahoma Bar Ass’n v. Sopher, 1993 OK 55, 852 P.2d credit upon the legal profession, shall be grounds for disciplinary 707, 711 (Opala, J., dissenting). action, whether or not the act is a felony or misdemeanor, or a crime at 2. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 506, 72 S.Ct. 777, all. Conviction in a criminal proceeding is not a condition precedent to 783, 96 L.Ed. 1098 (1952); Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. the imposition of discipline. 1680, 6 L.Ed.2d 982 (1961); Guinn v. Church of Christ of Collinsville, 2. Rule 8.4, Misconduct, provides at subsection (d): 1989 OK 8, 775 P.2d 766, 770. It is professional misconduct for a lawyer to: 3. Hans Kelsen, WHAT IS JUSTICE?: JUSTICE, LAW, AND POLITICS IN THE . . . MIRROR OF SCIENCE 1, 1, 4 (1957); Hans Kelsen, GENERAL THEORY OF LAW (d) engage in conduct that is prejudicial to the administration of AND STATE 8-9 (Harvard University Press, 1945); Lon L. Fuller, THE justice. . . . MORALITY OF LAW 9 (2d ed. 1969).

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 589 2005 OK 10 I. Facts and Proceedings Below NAOMI LEE THOMASON, ¶2 This cause arises out of a collision Plaintiff/Appellant, v. RONALD M. between an automobile operated by Delmar PILGER, ALTERNATIVE TRANSPORT, Thomason and a heavy truck, a truck-tractor INC., and GREAT WEST CASUALTY and semi-trailer (semi), operated by Ronald M. COMPANY, Defendants/Appellees. Pilger, defendant/appellee. Naomi Thomason, plaintiff/appellant, was a passenger in the No. 98,281. March 1, 2005 automobile driven by her husband, Delmar ON WRIT OF CERTIORARI TO THE Thomason. Pilger was driving the semi in the COURT OF CIVIL APPEALS, DIVISION II course of his employment with Alternative Transport, Inc., defendant/appellee. At the ¶0 Plaintiff filed this negligence action in time of the collision, the semi was insured by the District Court of Mayes County, Okla- Great West Casualty Company, defendant/ homa, against Ronald M. Pilger, Alterna- appellee. tive Transport, Inc. and the estate of Del- mar Thomason, deceased, to recover dam- ¶3 The collision occurred in rainy weather ages for personal injuries suffered when around 11:30 a.m. on April 25, 1999, in Pryor, the automobile in which she was riding Oklahoma. The following facts lead up to the collided with a semi truck. Plaintiff settled collision. Delmar Thomason was driving west her claim against the estate of her late hus- on S.E. 9th Street. He stopped at the red light at band, Delmar Thomason. The other defen- the intersection with U.S. Highway 69. While dants raised affirmative defenses of Del- the light was still red, he entered the intersec- mar Thomason’s negligence and plaintiff’s tion, crossing the northbound lanes to turn left contributory negligence. The Honorable into a southbound lane of U.S. Highway 69. Jess Clanton, Jr., presided over the jury Pilger was driving north on U.S. Highway 69. trial. The trial judge submitted the negli- He had the green light at the intersection with gence and contributory negligence issues S.E. 9th Street. Pilger approached the S.E. 9th to the jury. The jury returned a verdict in Street intersection as Delmar Thomason favor of Pilger and Alternative Transport, started across the northbound lanes of U.S. Inc. and the trial court entered judgment Highway 69 against the red light. Pilger’s semi thereon. Plaintiff appealed. The Court of collided with Thomason’s automobile in the Civil Appeals determined that the trial intersection. Delmar Thomason was fatally court erred in submitting the contributory injured and Naomi Thomason was severely negligence issue to the jury and reversed injured. and remanded the cause to the district ¶4 Naomi Thomason sued Pilger, Alterna- court. Defendants/appellees petitioned for tive Transport, Inc. and the estate of Delmar a writ of certiorari. We previously granted Thomason, alleging that the negligence of each certiorari review. defendant caused her injuries. Subsequently, OPINION OF THE COURT OF CIVIL she added Great West Casualty Company as a APPEALS VACATED IN PART; party defendant. Naomi Thomason settled and JUDGMENT OF THE DISTRICT COURT dismissed with prejudice all claims against her AFFIRMED. late husband’s estate. The other defendants answered, alleging, among other defenses, that James E. Frasier, Frank W. Frasier, John the collision was caused by Delmar Thoma- Bogatko, Frasier, Frasier & Hickman, Tulsa, son’s negligence and Naomi Thomason’s con- Oklahoma, for plaintiff/appellant. tributory negligence. The negligence claims Robert B. Mills, Dan K. Jones, The Mills Law against Pilger and Alternative Transport, Inc. Firm, Oklahoma City, Oklahoma, for defen- were tried to a jury. At the conclusion of all the dants/appellees. evidence, Naomi Thomason moved for a directed verdict on the issue of her contributo- TAYLOR, J. ry negligence. The trial court denied the ¶1 The question presented on certiorari is motion and submitted all negligence issues to whether the trial judge erred in submitting the the jury. Without a specific finding of negli- issue of plaintiff’s contributory negligence to gence of Naomi Thomason or Pilger, the jury the jury? We answer in the negative. returned an unanimous verdict in favor of Pil-

590 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 ger and Alternative Transport, Inc. The trial Trailer Corp., 1988 OK 105, ¶8, 765 P.2d 770, 772. court entered judgment on the verdict in favor However, in light of art. 23, § 6 of the Okla- of Pilger, Alternative Transport, Inc. and Great homa Constitution, this Court has fashioned a West Casualty Company.1 different evidentiary test for ruling on a motion for directed verdict on the issue of con- ¶5 Naomi Thomason appealed, raising error tributory negligence and standard for review in two of the court’s mid-trial rulings: 1) the of that ruling. overruling of an objection to the inquiry of the fact of the settlement with Delmar Thomason’s ¶8 The Oklahoma Constitution, art. 23, § 6 estate; and 2) the overruling of the motion for provides that the “defense of contributory neg- a directed verdict on the issue of Naomi ligence . . . shall, in all cases whatsoever, be a Thomason’s contributory negligence. On the question of fact, and shall, at all times, be left to first error, the Court of Civil Appeals conclud- the jury.”2 Early jurisprudence construed this ed that the trial court correctly exercised its constitutional language to require the trial discretion in allowing Naomi Thomason, on court to instruct the jury on contributory negli- the witness stand, to answer whether she had gence whenever it is pleaded even in the settled her claim against her late husband’s absence of any supporting evidence. Miller v. estate. Naomi Thomason did not seek certio- Price, 1934 OK 332, ¶¶14-21, 33 P.2d 624, 627- rari review of the Court of Civil Appeals’ deci- 28. Finding this early construction to be overly sion on this issue. This issue is not before us. broad and to be potentially confusing to juries, On the second error, the Court of Civil Appeals Miller v. Price announced a minimal evidence determined there was no evidence reasonably test. Miller v. Price concluded that the constitu- tending to show Naomi Thomason’s contribu- tion requires the contributory negligence tory negligence and the issue should not have defense be submitted to the jury if there is any been submitted to the jury. The Court of Civil evidence of an act, omission, or circumstance Appeals reversed the judgment of the trial tending to prove contributory negligence or court and remanded the cause for a new trial. from which an inference of contributory negli- gence might be drawn. Id., 1934 OK 332, ¶6 Defendants/appellees sought certiorari at¶¶22-23, 33 P.2d at 628. Pleading the defense review. The certiorari petition urged review of contributory negligence alone will not war- only of the question as to whether the trial rant instructing the jury on the issue under court committed reversible error by submit- Miller v. Price. However, it is only when there is ting the issue of Naomi Thomason’s contribu- no dispute of the facts and only one conclusion tory negligence to the jury. We previously can be drawn therefrom that the trial court granted the petition for writ of certiorari. We may decide the issue of contributory negli- vacate that part of the opinion of the Court of gence as a matter of law. Kansas, O.&G.Ry.Co. v. Civil Appeals which decided the trial court Clark, 1953 OK 276, ¶17, 262 P.2d 426, 429. erred in submitting the contributory negli- Under Miller v. Price, the issue of contributory gence issue to the jury and leave the remainder negligence must be submitted to the jury if undisturbed. there is any evidence produced at trial, either II. Standard of Review by plaintiff or defendant, from which contrib- utory negligence might be inferred. Denco Bus ¶7 The Court of Civil Appeals applied the Lines, Inc. v. Rose, 1950 OK 241, ¶3, 224 P.2d standard for review of a denial of a motion for 260, 260-61. directed verdict, citing Myers v. Maxey, 1995 OK CIV APP 148, 915 P.2d 940, in deciding that ¶9 On appeal, consistent with the minimal the trial court erred in submitting the issue of evidence test announced in Miller v. Price, we Naomi Thomason’s contributory negligence to review all the evidence presented to the jury the jury. Myers v. Maxey correctly stated the and consider all inferences which may be rea- general standard of review of a denial of a sonably drawn therefrom to determine motion for directed verdict whereby we exam- whether the trial court should have submitted ine the record for any evidence that reasonably the question of contributory negligence to the tends to support a judgment for the party jury. Clanton v. Mundell, 1935 OK 974, ¶5, 51 against whom the motion was made, Trent v. P.2d 760, 761. The withholding of the issue of Oklahoma Gas & Electric Co., 1989 OK 54, ¶6, contributory negligence from the jury will be 775 P.2d 275, 277, disregarding all evidence in affirmed only if there is a complete absence of favor of the moving party, Woods v. Fruehauf proof of contributory negligence or circum-

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 591 stances from which contributory negligence IV. The Facts and Circumstances in This may be inferred. Graham v. Keuchel, 1993 OK 6, Case ¶38, 847 P.2d 342, 358. ¶12 The evidence relating to the facts and III. Contributory Negligence of a Passenger circumstances of the collision in this case included the testimony of Naomi Thomason, ¶10 Negligence is the want of ordinary care. Pilger, two eye witnesses, the investigating 76 O.S.2001, § 5. Contributory negligence is an officer and expert witnesses. Naomi Thomason act or omission on the part of a plaintiff testified that she had no memory of the color of amounting to want of ordinary care which, the light, she did not see the semi, and she can- together with the negligence of the defendant, not recall the events leading up to the collision. is the proximate cause of the plaintiff’s injury. The two eye witnesses testified they saw the Sloan v. Anderson, 1932 OK 782, 18 P.2d 274. Thomason vehicle stop at the red light, then While a passenger stands in a different posi- proceed into the intersection while the light was still red, and almost immediately there- tion than a driver, a passenger must use ordi- after, Pilger’s semi collide with the Thomason nary care for his or her safety or “be open to vehicle. Pilger testified he was traveling on the charge of contributory negligence”. Stillwa- U.S. Highway 69 at a speed of about forty- ter Milling Co. v. Templin, 1938 OK 203, ¶13, 77 three miles per hour, he saw the Thomason P.2d 309, 735. The settled rule in this jurisdic- vehicle stopped at the intersection, then the tion is that a passenger in a moving vehicle Thomason vehicle was in front of him and his must use ordinary care for his or her own safe- semi collided with it. The investigating officer ty, Matchen v. McGahey, 1969 OK 48, ¶25, 455 testified that he arrived at the scene of the acci- P.2d 52, 58; and in order to exercise ordinary dent within two or so minutes and it was pour- care, the passenger may be required, by reason ing down rain at that time. He also testified the of all the circumstances involved, to caution accident was a T-bone impact, the pavement the driver against the manner of the vehicle’s was slick from the rain and the semi pushed the Thomason vehicle some 267 feet before operation or warn the driver of a dangerous coming to a stop. The expert witnesses gave condition. Id. conflicting testimony regarding the rate of ¶11 What act or omission of a passenger con- speed the semi was traveling, the import of the stitutes contributory negligence depends upon skid marks and the visibility of vehicles at the the facts and circumstances established in each time of the collision. case, and generally it is a question of fact to be ¶13 Plaintiff took the position that there was decided by the jury under appropriate instruc- no evidence tending to prove her contributory tion. Id. 1969 OK 48 at ¶0, Syllabus by the negligence in any degree. On appeal, she Court, No.2; Hasty v. Pittsburg County Ry. Co., urged that her presence in the vehicle, in and 1925 OK 576, 240 P. 1056, 1059. For instance, of itself, was insufficient to submit the issue of contributory negligence of the passenger was a contributory negligence to the jury. She argued question of fact to be determined by the jury there must be evidence as to whether she, the passenger, had the same opportunity as the where the passenger went to sleep, Rader v. driver to observe dangerous conditions and Fleming, 1967 OK 104, ¶13, 429 P.2d 750, 752, whether she, the passenger, failed to remon- when the passenger failed to caution about strate the driver about the observed dangerous dangerous driving or watch for road hazards, conditions. Bradshaw v. Fields, 1977 OK 240, ¶10, 572 P.2d 552, 553-54, or when the vehicle was struck ¶14 Defendants took the position that the while crossing a railroad track, Kansas O.& G. evidence tended to prove that Naomi Thoma- son failed to keep a proper lookout and failed Ry. v. Clark, 1953 OK 276, ¶17, 262 P.2d 426, 429. to warn her husband about the red light. On We have carefully reviewed the record, and appeal, they argued that the evidence clearly although no witness testified about Naomi proved Delmar Thomason ran a red light Thomason’s acts or omissions, we cannot say when he entered the intersection in front of Pil- there is a complete absence of proof of circum- ger’s semi and that the jury could have reason- stances from which an inference of her contrib- ably inferred from the evidence that Naomi utory negligence might have been drawn. Thomason failed to warn her husband of the

592 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 impending dangers. Accordingly, defendants ¶18 Watt, C.J., Winchester, V.C.J., Lavender, urged that the trial court did not err in submit- Hargrave, Opala, Edmondson, Taylor and Col- ting the contributory negligence issue to the bert, JJ., concur. jury. ¶19 Kauger, J. concurs in part and dissents in ¶15 We agree with plaintiff, Naomi Thoma- part. son, that the basic fact of being a passenger in I would deny certiorari as improvidently a vehicle involved in an accident does not cre- granted. ate a contributory negligence fact issue that must be submitted to the jury. We also agree 1. The trial court ruled that Great West Casualty Company, the with defendants, Pilger and Alternative Trans- insurer for Alternative Transport, Inc., would not be disclosed to the jury as a party defendant until after the jury made findings of liability. port, Inc., that an inference could be drawn Accordingly, the jury rendered its verdict in favor of defendants Pilger from the proof of the circumstances of the acci- and Alternative Transport, Inc. only. The trial court, however, entered judgment in favor of all three defendants. dent that Naomi Thomason did not exercise 2. The provisions of Okla. Const., art. 23, § 6 are codified in 23 ordinary care for her own safety to avoid the O.S.2001, §12. accident and did not adequately caution and 2005 OK 11 warn the driver of the dangers and hazards. HOWARD LEE HILL, JR., Appellant, v. ¶16 The record reflects that the trial judge HEATHER DIANE BLEVINS, and D.S., thoroughly considered the motion for directed Infant, Appellees. verdict on the contributory negligence issue. In denying Naomi Thomason’s motion, the trial No. 100,504. March 1, 2005 judge correctly found there was “a scintilla of ON CERTIORARI TO THE COURT OF CIVIL evidence in the record from which a jury might APPEALS, DIVISION III consider the question of contributory negli- gence”. The trial judge properly submitted the ¶0 Howard Lee Hill, Jr., the appellant, peti- contributory negligence issue to the jury. tioned the district court to be recognized as the biological father of D.S. and to set aside V. Conclusion as fraudulent, the affidavit establishing paternity in a non-party. Because almost ¶17 In a jury trial, the issue of contributory six years had passed since the birth of D.S., negligence must be submitted to the jury if the appellees filed motions to dismiss there is any evidence of an act, omission, or cir- asserting that the actions were barred by cumstance tending to prove contributory neg- the statute of limitations. The district court ligence or from which an inference of contrib- granted the motions. On appeal, the Court utory negligence might be drawn. To withhold of Civil Appeals reversed. the issue of contributory negligence from the jury, there must be a complete absence of proof CERTIORARI PREVIOUSLY GRANTED; of contributory negligence or circumstances OPINION OF THE COURT OF CIVIL from which contributory negligence may be APPEALS VACATED; inferred. The appellate court will examine all JUDGMENT OF THE DISTRICT COURT the evidence presented to the jury and consid- AFFIRMED. er all inferences which may be reasonably Howard Lee Hill, Jr., Tulsa, Oklahoma, pro se drawn therefrom to determine whether the appellant. question of contributory negligence should have been submitted to the jury. Accordingly, Kenneth E. Holmes, Grace K. Yates, HOLMES that part of the opinion of the Court of Civil AND YATES, Ponca City, Oklahoma, for Appeals relating to the issue of Naomi Thoma- appellees. son’s contributory negligence must be vacated, WINCHESTER, J. leaving the remainder undisturbed, and the judgment of the district court must be ¶1 The issue before us is whether the appel- affirmed. lant, Howard Lee Hill, Jr., is barred by the statute of limitations from pursuing his pater- OPINION OF THE COURT OF CIVIL nity claims against the appellees, Heather APPEALS VACATED IN PART; Diane Blevins and D.S., an infant. We hold that JUDGMENT OF THE DISTRICT COURT his two causes, combined in the trial court, are AFFIRMED. barred by the statute of limitations.

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 593 ¶2 Appellant filed two petitions in the Dis- Blevins alleged that David Sawyer was the trict Court of Kay County. The first, titled father. “Petition to Establish Paternity,” asks that the ¶7 Hill asserts he has made numerous court require genetic testing of the parties to unsuccessful attempts to contact Blevins con- determine paternity of D.S., who was born out cerning the child. In January 2002, he was of wedlock. The second petition, titled “Peti- referred to the Department of Human Services tion to Vacate and Set Aside Judgment or Child Support Enforcement Division of Kay Order,” asks that the court vacate the affidavit County to request services for genetic testing. declaring David A. Sawyer to be the father of On June 12, 2002, they told him that paternity D.S. The court docket sheet reveals the cases for the child had already been established. were combined on February 13, 2004. The When Hill phoned the DHS Child Support appellees moved to dismiss and the court Enforcement Division centralized support reg- granted the motions on February 24, 2004. istry in Oklahoma City, he learned paternity of Because the cases were consolidated by the D.S. was established by an affidavit signed by trial court, this Court docketed the cases as one Blevins and declaring another man to be the appeal. The Court of Civil Appeals reversed father of D.S. and remanded the cases to the trial court. This Court granted certiorari. ¶8 Title 63 O.S.2001, §1-311(D)(2) requires that if the mother is not married at the time of ¶3 We will treat the motions to dismiss as conception and birth, the name of the father motions for summary judgment as the parties shall be entered on the certificate of birth only presented evidentiary material before the trial if a determination of paternity has been made court. 12 O.S.Supp.2004, §2012(B).1 Although a by an administrative action through the trial court considers factual matters in its Department of Human Services or a court of determination of whether summary judgment competent jurisdiction, or if the mother and is appropriate, the ultimate decision involves father have signed an affidavit acknowledging purely legal determinations, that is, whether a paternity and filed with the State Registrar of party is entitled to judgment as a matter of law Vital Statistics. A statement acknowledging because there are no material disputed factual paternity has the same legal effect as an order questions. Since the decision involves purely of paternity entered in a court or administra- legal determinations, the appellate standard of tive proceeding. 10 O.S.2004, §70(B)(1)2 review is de novo. All inferences and conclu- sions to be drawn from the evidentiary materi- ¶9 In Matter of C.J.S., 1995 OK 70, 903 P.2d als must be viewed in the light most favorable 304, the appellant, claiming to be the biological to the non-moving party. Carmichael v. Beller, father of the children being adopted, sought to 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. vacate the adoption based on fraud and lack of notice. Matter of C.J.S. is similar to the case ¶4 The facts are taken from the allegations in before this Court because both establish the the two petitions filed in district court. They legal parentage of the children involved and allege that Hill and Blevins were living togeth- both allege fraud and a lack of notice by one er and were engaged. In December of 1996, claiming to be the natural father. In Matter of they “agreed to conceive a child within the C.J.S. the Court held that a stranger to the relationship.” Around December 25, 1996, judgment roll of an adoption proceeding may Blevins used a home pregnancy test that con- bring an action to vacate the adoption decree if firmed conception. Hill alleged that Blevins he or she possesses an interest entitled to legal told friends and family that Hill was the father. protection that is impaired by the decree. Mat- ¶5 In February 1997, Blevins moved from ter of C.J.S., 1995 OK 70, ¶ 10, 903 P.2d at 306. Ponca City to Mangum where she received a Hill may move for vacation of the statement doctor’s care and lived with Hill’s father and acknowledging paternity, which is treated as a brother. In mid June of 1997, when she was legal order, because he also claims to be the about six months pregnant, Blevins ended the father of D.S. relationship with Hill and moved back to ¶10 Because a statement acknowledging Ponca City. On September 23, 1997, Blevins paternity has the same legal effect as an order gave birth to D.S. in Ponca City. entered in a court, the district court has the ¶6 At the time of birth, Hill was incarcerated power to vacate such an order for fraud prac- in the Garfield county jail. After D.S. was born, ticed by the successful party. 12 O.S.2001,

594 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 §1031(4).3 In his Petition to Vacate and Set ¶12 The significance of the biological con- Aside Judgment or Order, Hill requests that nection of a father to a child is that it gives the the district court vacate the order in the form of father an opportunity to develop a relationship the affidavit acknowledging paternity declar- with the child. A trial judge or a litigant is not ing David A. Sawyer to be the father of D.S. required to give special notice to a nonparty The ground for vacation of the order is 12 who is presumptively capable of asserting and O.S.2001, §1031(4). Section 10384 is a general protecting his own rights. Matter of C.J.S., 1995 statute of limitation applicable to proceedings OK 70, ¶¶ 16, 17, 903 P.2d at 307-308. brought under §1031. With regards to subsec- ¶13 In this appeal Hill filed a motion to tion 4, where the complaining party alleges strike two documents filed in the district court that an order has been obtained by fraud, pro- before judgment was pronounced. This assert- ceedings to vacate that order must be com- ed error is not preserved in Hill’s Amended menced within two years after the order was Petition in Error. It is therefore waived. Mar- made. The complaining party need not have shall v. Fenton, Fenton, Smith, Reneau and Moon, actual notice of the fraud. Constructive notice P.C., 1995 OK 66, ¶ 5, n. 3, 899 P.2d 621, 623, n. of fraud from public records, required by law 3. to be kept, is sufficient to set the statute of lim- itations in motion. Gearhart Industries, Inc. v. ¶14 Hill also filed a motion for recovery of Grayfox Operating Co., 1992 OK CIV APP 44, ¶ costs in the amount of $200.00 against the 5, 829 P.2d 1005, 1006.5 appellees. The ultimate outcome of this appeal is that the trial court’s judgment is affirmed. “Where the means of discovering fraud are “Where the trial court’s rulings challenged on in the hands of the party defrauded and appeal by appellant have been affirmed he is the defrauding party has not covered up not entitled to recover any of his costs associ- his fraud to the extent that it would be dif- ated with this appeal from appellee.” Jackson v. ficult or impossible to discover, the party Jackson, 2002 OK 25, ¶ 22, 45 P.3d 418, 429. defrauded will be deemed to have had notice of the fraud from the date the means CERTIORARI PREVIOUSLY GRANTED; of discovering such fraud came into his OPINION OF THE COURT OF CIVIL hands, and the fraud will be deemed to APPEALS VACATED; have been discovered upon that date.” JUDGMENT OF THE DISTRICT COURT AFFIRMED. Smith v. Kimsey, 1943 OK 121, ¶ 5, 138 P.2d 94, 94-95.6 CONCUR: WATT, C.J., WINCHESTER, V.C.J, LAVENDER, HARGRAVE, KAUGER, ¶11 Hill is chargeable with knowledge that a EDMONDSON, TAYLOR, COLBERT, JJ. positive pregnancy test administered on December 25, 1996, is likely to be followed by DISSENTS: OPALA, J. the birth of a child approximately forty weeks later, that is, around September 30, 1997. D.S. 1. The statute provides in pertinent part: “If, on a motion asserting the defense numbered 6 of this subsection to dismiss for failure of the was born September 23, 1997. Instead of mak- pleading to state a claim upon which relief can be granted, matters ing inquiry about the birth, the issuance of a outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . .” This birth certificate, or matters of support and vis- provision has remained unchanged since enacted in 1984. itation, Hill waited until the child was almost 2. 2002, Okla. Sess. Laws, ch. 314, §1, eff. November 1, 2002. 3. Title 12 O.S.2001, §1031(4) provides: “The district court shall six years old before he filed suit. The means of have power to vacate or modify its own judgments or orders within discovery of the alleged fraud were no less the times prescribed hereafter: . . . (4) For fraud, practiced by the suc- available to Hill in the fall of 1997 than they cessful party, in obtaining a judgment or order . . . .” 4. Title 12 O.S.2001, §1038 provides in pertinent part: “Proceedings were five years later in June of 2002. So, even if to vacate or modify a judgment, decree or order, for the causes men- Blevins’ naming of Sawyer as the father was tioned in paragraphs 4, 5 and 7 of Section 1031 of this title must be commenced within two (2) years after the filing of the judgment, false, means of discovering the alleged fraud decree or order, unless the party entitled thereto be an infant, or a per- were readily available to Hill any time from son of unsound mind and then within two (2) years after removal of such disability. . . .” and after the issuance of the birth certificate on 5. Citing Mattheuson v. Hilton, 321 P.2d 396, 397 (Okla. 1958) and In October 17, 1997, expiring two years later in re Woodward, 549 P.2d 1207 (Okla. 1976). October of 1999. This suit, filed nearly four 6. Citing Bankers Mtg. Co. v. Leisure, 172 Okla. 170, 42 P.2d 863. years subsequent, July 2003, was correctly found to be time-barred by the trial court.

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 595 THE MUSCOGEE (CREEK) NATION presents THE THIRD ANNUAL “DOING BUSINESS IN INDIAN COUNTRY” Co-Sponsored by the American Bar Association Judicial Division Tribal Courts Council Sam Viersen Family Foundation Muscogee(Creek) Nation Supreme Court

March 10th and 11th, 2005 Oklahoma State University Covelle Hall Okmulgee Campus

Moderators: Michelle Grunsted, BA, JD, LL.M, Professor - University of Oklahoma Judge Patrick E. Moore, BBA, JD, LL.M, Muscogee (Creek) Nation District Court Judge General Counsel – City of Okmulgee

Faculty: Geoffrey Blackwell, BS, JD, Federal Communications Commission Richard Young, LL.B., Partner - Luebben Johnson & Young LLP, Past Professor Karl Johnson, JD, Partner - Luebben Johnson & Young LLP, Past Professor Dan Murdock, JD, General Counsel -Oklahoma Bar Association, Judge Kickapoo Tribe of Oklahoma Cherokee Principal Chief Chad Smith, BS, MS, JD Judith V. Royster, BA, MA, JD, Professor of Law, University of Tulsa Vicki J. Limas, BA, MA, JD, Professor of Law, University of Tulsa Lindsay G. Robertson, AB, MA, Ph.D., JD, Professor of Law, University of Oklahoma Kirke Kickingbird, BA, JD, Lawyer, Educator, Past Tribal Justice Tai Helton, BS, JD, LL.M. Professor of Law, University of Oklahoma John Williams, BS, JD, LL.M. Candidate, University of Tulsa, Supervising Attorney- Boesche Legal Clinic Shannon Prescott, BS, JD, Assistant District Attorney, Muscogee (Creek) Nation COURSE OUTLINE DAY ONE March 10th , 2005 8:30 - Registration and Continental Breakfast 8:50 - Welcome and Introduction by Patrick Moore of Dr. Bob Klabenes, President, Oklahoma State University in Okmulgee andPrincipal Chief A.D. Ellis and Principal Chief Chad Smith 9:00 - Water Resources and Issues in Indian Country - Judith Royster 10:00 - Break 10:10 - Employment Issues in Indian Country – Vicki Limas 11:00 - Impact of State Question 712 and other Oklahoma Developments- Kirke Kickingbird 12:00 - Lunch - Culinary Arts Chefs OSU 1:20 - Resume at Muscogee (Creek) Nation Tribal Complex Tribes, Individual Indians, and non-Indians

596 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 – How to Do Business in Indian Country - Karl Johnson & Richard Young 2:20 - Break 2:30 - Doing Business - Continued - Johnson and Young 3:30 - Core Values – Where Do You Stand? (1 hour of Ethics) – Dan Murdock 4:30 - Question and Answer Session – All Faculty and Speakers 5:00 - Supreme Court Swearing in Ceremony 5:30 - Barbeque Dinner Provided at the Okmulgee Casino

March 11th, 2005 COURSE OUTLINE DAY TWO 8:50 - Opening Remarks - Judge Patrick E. Moore 9:00 - FCC Issues within Indian Country - Geoffrey Blackwell 10:00 - Break 10:05 - Geneva Conference- an Insider’s Perspective – Lindsay Robertson 10:55 - Break 11:00 - Tax Issues in Indian Country - Tai Helton 12:00 - Lunch - Culinary Arts Chefs OSU 1:30 - Investing in Indian Country – John Williams 2:20 - Break 2:30 - Investing in Indian Country Continued 3:20 - Recent Supreme Court Developments and National News Affecting Tribes – Shannon Prescott 4:30 - Closing Comments and Evaluations Adjourn

Tuition: $100.00 for ATTORNEYS and LAYMAN who preregister two weeks prior to seminar date; $150.00 for walk-in registrations - space available.

Cancellations: Cancellations will be accepted at any time prior to seminar date, however, a cancellation fee of $50.00 will be charged.

13 Hours of CLE Credit with 1 hour of Ethics (14 hours)

REGISTRATION FORM DOING BUSINESS IN INDIAN COUNTRY Name______Firm/Organization______Address______City______State______Zip______OBA Member ___Yes ___No OBA Bar # ______E-Mail______Make Check payable to Muscogee (Creek) District Court - CLE Program and mail entire page to: Muscogee (Creek) District Court, P.O. Box 652, Okmulgee, Oklahoma 74447

Questions contact the District Court @ 918.758.1400 or [email protected]

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 597 OETA Festival Volunteers Needed OBA members are asked again this year to Attention help take pledge calls during the OETA Festival to raise funds for continued OETA quality public television. I Wednesday, March 16 Donors I 5:45 - 11 p.m. I OETA studio at Wilshire & Don’t forget to call N. Kelley, Oklahoma City in your pledge on I dinner & training session Wednesday, March 16 from I recruit other OBA members 7 — 11 p.m. to work with you All pledges collected For 26 years OETA has provided television time as a public service for the OBA’s Law Day during this time help the “Ask A Lawyer” program. By assisting OETA, we OBA maintain its status show our appreciation. It is also a highly visible as a “Senior Executive volunteer service project. Producer” donor, mean- I Contact Carol Manning to sign up. ing at least $2,500 in Phone: (405) 416-7016 pledges must be raised. E-mail: [email protected] Fax: (405) 416-7001 For 26 years, OETA has provided television time as Name ______a public service for the Address OBA’s Law Day “Ask A ______City/Zip Lawyer” program. By ______assisting OETA, we show Phone ______our appreciation. E-mail ______

Mail to OBA, P.O. Box 53036 Oklahoma City, OK 73152

598 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 Court of Criminal Appeals Opinions

2005 OK CR 1 application for post-conviction relief pursuant to Smith, is to conduct an evidentiary hearing and NATALIE DAWN BLADES, Appellant, vs. provide findings of fact and conclusions of law STATE OF OKLAHOMA, Appellee. upon which this Court will then determine if an No. RE-2004-363. February 17, 2005 appeal out of time should be granted. ORDER GRANTING MOTION TO DISMISS ¶5 This rule of procedure is true for both the APPEAL seeking of an out of time appeal from either an original sentencing or a revocation of sentences. ¶1 Appellant initiated the above-styled and In other words, regardless of the type of case, the numbered appeal from the revocation of her sus- District Court serves the function of fact finding pended sentences in Jackson County District only, and this Court will determine whether to Court Case Nos. CF-2000-166 and CF-2001-323. grant an appeal out of time. To the extent any Appellee has filed a Motion to Dismiss pursuant language in Houghton v. City of Wewoka, 1988 OK to Rule 2.1(E)(1), Rules of the Oklahoma Court of CR 86, 753 P.2d 933, Ellison v. State, 1985 OK CR Criminal Appeals, Title 22, Ch.18, App. (2004). 148, 709 P.2d 1064 and Smith v. State, 1980 OK CR Specifically, Appellee avers Appellant has 43, 611 P.2d 276 is inconsistent with this opinion, attempted to circumvent the Rules of this Court such language is expressly modified and/or by filing a Motion for Re-Sentencing with the overruled. Based on the foregoing, the District District Court, which the District Court granted, Court did not have jurisdiction to entertain rather than filing a petition for an out-of-time Appellant’s motion for re-sentencing. appeal with this Court. ¶6 IT IS SO ORDERED. ¶2 Appellant has filed an Objection to Appellee’s motion. Appellant avers she is prop- ¶7 WITNESS OUR HANDS AND THE SEAL erly before this Court pursuant to Rule 2.1(E)(1), OF THIS COURT this 17th day of February, 2005. Rules of the Oklahoma Court of Criminal Appeals, /s/ Charles S. Chapel Title 22, Ch.18, App. (2004) and 22 O.S.2001, Sec- CHARLES S. CHAPEL tion 1085. Presiding Judge ¶3 After a review of the pleadings filed in this /s/ Gary L. Lumpkin, matter, this Court finds the Motion to Dismiss GARY L. LUMPKIN the above-styled and numbered appeal should Vice-Presiding Judge be GRANTED. Once a defendant has been sen- tenced by a District Court, the District Court /s/ Charles A. Johnson loses jurisdiction over the case.1 Rule 2.1(E)(1) CHARLES A. JOHNSON allows the District Court to re-sentence a defen- Judge dant, pursuant to 22 O.S.2001, /s/ Steve Lile § 1985, provided an application for post-convic- STEVE LILE tion relief has been filed in the District Court and Judge the District Court finds one of the enumerated, limited allegations pursuant to 22 O.S.2001, § ATTEST: 1080 is established by the defendant. Thus, re- /s/Michael S. Richie sentencing is a part of that adjudication. Clerk ¶4 However, an Appellant being granted 1. See LeMay v. Rahhal, 1996 OK CR 21, ¶24, 917 P.2d 18, 23. 2. In Smith v. State, 1980 OK CR 43, ¶2, 611 P.2d 276, 277, this Court and/or denied an appeal through no fault of established a vehicle by which an Appellant could seek an out-of-time his/her own is not one of the enumerated provi- appeal. Under that procedure, the defendant files an application for post- conviction relief seeking an appeal out of time. If District Court finds the sions of Section 1080, which allows the District defendant has met his/her burden of proof that an appeal was denied Court to apply the provisions of Section 1085.2 though no fault of the defendant, the District Court can make a recom- The role of the District Court in addressing a mendation to this Court that an out-of-time appeal be granted. However, it is this Court that makes the ultimate decision of whether or not an out- request for an appeal out of time through the of-time appeal should be granted.

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 599 NOTICE OF INVITATION TO SUBMIT OFFERS TO CONTRACT

THE OKLAHOMA INDIGENT DEFENSE SYSTEM BOARD OF DIRECTORS gives notice that it will entertain sealed Offers to Contract (“Offers”) to provide non-capital trial level defense representation during Fiscal Year 2006 pursuant to 22 O.S. 2001, §1355.8. The Board invites Offers from attorneys interested in providing such legal services to indigent persons during Fiscal Year 2006 (July 1, 2005 through June 30, 2006) in the following counties: 100% of the Indigent Defense System caseload in Carter, Johnston, Love, Marshall, Murray, Wag- oner and Woods Counties; 33.33% of the System’s caseload in Payne County; 25% of the System’s caseload in Canadian and Kingfisher Counties; and 25% of the Felony caseload in Blaine County.

Offer-to-Contract packets will contain the forms and instructions for submitting Offers for the Board's consideration. Contracts awarded will cover the defense representation in the OIDS non-capital felony, juvenile, misdemeanor and traffic cases in the above counties during FY-2006 (July 1, 2005 through June 30, 2006). Offers may be submitted for partial or complete coverage of the open caseload in any one or more of the above counties. Sealed Offers will be accepted at the OIDS offices Monday through Friday, between 8:00 a.m. and 5:00 p.m. The deadline for submitting sealed Offers is 5:00 p.m., Thursday, March 10, 2005.

Each Offer must be submitted separately in a sealed envelope or box containing one (1) com- plete original Offer and two (2) complete copies. The sealed envelope or box must be clearly marked as follows: FY-2006 OFFER TO CONTRACT TIME RECEIVED: ______COUNTY / COUNTIES DATE RECEIVED: ______

The Offeror shall clearly indicate the county or counties covered by the sealed Offer; how- ever, the Offeror shall leave the areas for noting the time and date received blank. Sealed Offers may be delivered by hand, by mail or by courier. Offers sent via facsimile or in unmarked or unsealed envelopes will be rejected. Sealed Offers may be placed in a protective cover envelope (or box) and, if mailed, addressed to OIDS, FY-2006 OFFER TO CONTRACT, Box 926, Norman, OK 73070-0926. Sealed Offers delivered by hand or courier may likewise be placed in a protective cover envelope (or box) and delivered during the above-stated hours to OIDS, at 1070 Griffin Drive, Norman, OK 73071. Please note that the Griffin Drive address is NOT a mailing address; it is a parcel delivery address only. Protective cover envelopes (or boxes) are recommended for sealed Offers that are mailed to avoid damage to the sealed Offer envelope. ALL OFFERS, INCLUDING THOSE SENT BY MAIL, MUST BE PHYSICALLY RECEIVED BY OIDS NO LATER THAN 5:00 P.M., THURSDAY, MARCH 10, 2005, TO BE CONSIDERED TIMELY SUBMITTED.

Sealed Offers will be opened at the OIDS Norman Offices on Friday, March 11, 2005, begin- ning at 9:30 a.m., and reviewed by the Executive Director or his designee for conformity with the instructions and statutory qualifications set forth in this notice. Nonconforming Offers will be rejected on Friday, March 11, 2005, with notification forwarded to the Offeror. Each rejected Offer shall be maintained by OIDS with a copy of the rejection statement.

600 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 NOTICE OF INVITATION TO SUBMIT OFFERS TO CONTRACT

Copies of qualified Offers will be presented for the Board's consideration at its meeting on Friday, March 18, 2005, at Griffin Memorial Hospital, Patient Activity Center (Building 40), 900 East Main, Norman, Oklahoma 73071.

In each Offer, the attorney must include a résumé and affirm under oath his or her compliance with the following statutory qualifications: presently a member in good standing of the Oklahoma Bar Association; the existence of, or eligibility for, professional liability insurance during the term of the contract; and affirmation of the accuracy of the information provided regarding other factors to be considered by the Board. These factors, as addressed in the provided forms, will include an agreement to maintain or obtain professional liability insurance coverage; level of prior representation experience, including experience in criminal and juvenile delinquency proceedings; location of offices; staff size; number of independent and affiliated attorneys involved in the Offer; professional affiliations; familiarity with substantive and procedural law; willingness to pursue continuing legal education focused on criminal defense representation, including any training required by OIDS or state statute; willingness to place such restrictions on one's law practice outside the contract as are reasonable and necessary to perform the required contract services, and other relevant information provided by attorney in the Offer.

The Board may accept or reject any or all Offers submitted, make counter-offers, and/or provide for representation in any manner permitted by the Indigent Defense Act to meet the State's obligation to indigent criminal defendants entitled to the appointment of competent counsel.

FY-2006 Offer-to-Contract packets may be requested by facsimile, by mail, or in person, using the form below. Offer-to-Contract packets will include a copy of this Notice, required forms, a checklist, sample contract, and OIDS appointment statistics for FY-2001, FY-2002, FY-2003, FY-2004, and FY-2005, together with a 5-year contract history for each county listed above. The request form below may be mailed to OIDS OFFER-TO-CONTRACT PACKET REQUEST, Box 926, Norman, OK 73070-0926, or hand delivered to OIDS at 1070 Griffin Drive, Norman, OK 73071 or submitted by facsimile to OIDS at (405) 801-2661. * * * * * * * * * * * * REQUEST FOR OIDS FY-2006 OFFER-TO-CONTRACT PACKET Name:______OBA #: ______

Street Address: ______Phone: ______

City, State, Zip: ______Fax: ______

County / Counties of Interest: ______

______

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 601 ALASKA 7-DAY SAWYER GLACIER on Norwegian Spirit

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602 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 Court of Civil Appeals Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

IN THE SUPREME COURT OF THE STATE /s/ OF OKLAHOMA Joseph M. Watt Tuesday, February 15, 2005 CHIEF JUSTICE The following cases are assigned to the Court Friday, February 18, 2005 of Civil Appeals Oklahoma City, Divisions 1 and 100,222 Humble, et al. v. Kieffer, et al. 3. The judges serving in the Oklahoma City Divi- 100,710 Deaconess Health Care Corp. v. E.D. sions are Carol M. Hansen, Glenn D. Adams, Hill Surveying, etc., et al. Larry E. Joplin, Kenneth L. Buettner and E. Bay 100,736 NcNickle v. Neundorf. Mitchell, III. The judges sit in three-judge panels which rotate periodically, but all assigned cases 101,327 Juby v. Parkside, Inc., et al. will be decided by three of the above named 101,393 Thornton Drilling Company, et al. v. judges. Any party may seek disqualification of Dietz, et al. any judge pursuant to Okla.Sup.Ct.R. 1.175, 12 The proceedings are to be governed by Okla- O.S.2001, Ch. 15, App. 1 and 20 O.S. 2001 §§ 30.3, homa Supreme Court Rules, Part V, Appeals 1401 and 1402. Assigned to Court of Civil Appeals. 12 O.S. 2001 101,032 Fesler v. Fesler. Ch. 15, App. 1. Until the Court of Civil Appeals has made its final disposition, all motions, peti- 101,077 Kyler v. Jones, et al. tions and other paperwork shall be filed with 101,263 Principal Life Ins. Co. v. Mega Life and the Clerk of the Supreme Court who serves ex Health Ins. Co. officio as the clerk of the Court of Civil Appeals room B-2, State Capitol, Oklahoma City, Okla- 101,428 Riggs, et al. v. City of Tulsa. homa, 73105. 101,492 Scott v. State, ex rel., Department of DONE BY ORDER OF THE SUPREME Public Safety. COURT this 18th day of February, 2005. 101,615 Jack v. Housing Auth. of the Creek /s/ Nation of Oklahoma, et al. Joseph M. Watt 101,651 Smith v. State, ex rel., Department of CHIEF JUSTICE Public Safety. Friday, February 25, 2005 101,678 National American Ins. Co. v. Reeds, et 101,490 In the Matter of A.R., alleged deprived al. child. 101,683 Shetters, etc. v. AG Security Insurance 101,726 Haworth, etc. v. Jantzen, et al. Co. 101,742 Forcum v. Via Christi Health System, 101,711 Easton, etc. v. Ark Wrecking Co. of Inc., et al. Oklahoma. 101,748 Hitchcock v. City of Oklahoma City. The proceedings are to be governed by Okla- 101,804 Sundance Aviation, Inc. v. Okla Execu- homa Supreme Court Rules, Part V, Appeals tive Jet Charter, Inc. Assigned to Court of Civil Appeals. 12 O.S. 2001 The proceedings are to be governed by Okla- Ch. 15, App. 1. Until the Court of Civil Appeals homa Supreme Court Rules, Part V, Appeals has made its final disposition, all motions, peti- Assigned to Court of Civil Appeals. 12 O.S. 2001 tions and other paperwork shall be filed with Ch. 15, App. 1. Until the Court of Civil Appeals the Clerk of the Supreme Court who serves ex has made its final disposition, all motions, peti- officio as the clerk of the Court of Civil Appeals tions and other paperwork shall be filed with room B-2, State Capitol, Oklahoma City, Okla- the Clerk of the Supreme Court who serves ex homa, 73105. officio as the clerk of the Court of Civil Appeals DONE BY ORDER OF THE SUPREME room B-2, State Capitol, Oklahoma City, Okla- COURT this 15th day of February, 2005. homa, 73105.

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 603 DONE BY ORDER OF THE SUPREME Friday, February 18, 2005 COURT this 25th day of February, 2005. 101,400 In matter of the Adoption of LNL & /s/ HPL. Joseph M. Watt 101,430 In Re Claim Of: Death of John Qualls. CHIEF JUSTICE 101,456 Bixby Manor, et al. v. Jones. Tuesday, February 15, 2005 101,458 Bronson Trailers & Trucks, et al. New- The following cases are assigned to the Court man., et al. of Civil Appeals Tulsa, Divisions 2 and 4. The judges serving in the Tulsa Divisions are Ronald 101,551 Lind, et al. v. City of Broken Arrow, et J. Stubblefield, John F. Reif, Keith Rapp, Joe C. et al. Taylor, Jerry L. Goodman. The judges sit in three- 101,721 Nicholas v. Myriad Systems. judge panels which rotate periodically, but all The proceedings are to be governed by Okla- assigned cases will be decided by three of the homa Supreme Court Rules, Part V, Appeals above named judges. Any party may seek dis- Assigned to Court of Civil Appeals. 12 O.S. 2001 qualification of any judge pursuant to Ch. 15, App. 1. Until the Court of Civil Appeals Okla.Sup.Ct.R. 1.175, 12 O.S. 2001, Ch. 15, App. 1 has made its final disposition, all motions, peti- and 20 O.S. 2001 §§ 30.3, 1401 and 1402. tions and other paperwork shall be filed with 98,109 Stoldt Stotts, Inc., et al. v. Kelley, et al. the Clerk of the Supreme Court who serves ex officio as the clerk of the Court of Civil Appeals 99,634 Lefler v. Meier, et al. room B-2, State Capitol, Oklahoma City, Okla- 100,359 Pearce, et al. v. Burr, et al. homa, 73105. 100,397 Arehart v. Arehart. DONE BY ORDER OF THE SUPREME 100,513 Witt, et al. v. Turkey Creek Conservan- COURT this 18th day of February, 2005. cy Dist., etc. /s/ 100,646 Rose v. Rose. Joseph M. Watt CHIEF JUSTICE 100,684 Sherman v. Ladner. Friday, February 25, 2005 100,708 Blythe v. Blythe. 97,859 Brown v. Grede Pryor Foundry, Inc., et 100,844 Lierly, et al. v. Tidewater Petroleum al. Corporation. 99,550 Wal-Mart Stores, Inc., et al. v. Roller, et 100,884 Taylor v. Timmons Oil Co., Inc. al. The proceedings are to be governed by Okla- homa Supreme Court Rules, Part V, Appeals 100,915 Bauer, et al. v. Brakefield, et al. Assigned to Court of Civil Appeals. 12 O.S. 2001 100,223 In re. Tax Protest of the Estate of Clara Ch. 15, App. 1. Until the Court of Civil Appeals Mae Muldrow. has made its final disposition, all motions, peti- 101,312 Washington v. Mullins. tions and other paperwork shall be filed with The proceedings are to be governed by Okla- the Clerk of the Supreme Court who serves ex homa Supreme Court Rules, Part V, Appeals officio as the clerk of the Court of Civil Appeals Assigned to Court of Civil Appeals. 12 O.S. 2001 room B-2, State Capitol, Oklahoma City, Ch. 15, App. 1. Until the Court of Civil Appeals Oklahoma, 73105. has made its final disposition, all motions, peti- DONE BY ORDER OF THE SUPREME tions and other paperwork shall be filed with COURT this 15th day of February, 2005. the Clerk of the Supreme Court who serves ex /s/ officio as the clerk of the Court of Civil Appeals Joseph M. Watt room B-2, State Capitol, Oklahoma City, Okla- CHIEF JUSTICE homa, 73105. DONE BY ORDER OF THE SUPREME COURT this 25th day of February, 2005. /s/ Joseph M. Watt CHIEF JUSTICE

604 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 CHRIS JOHNSON and SUZETTE ORDER JOHNSON, Husband and Wife; GILBERT L. The Petition for Rehearing of Appellees is DuPERTUIS and PATRICIA A. DuPERTIUS, GRANTED. Husband and Wife; and CHAD MILLER, Plaintiffs/Appellants, vs. JULIA AUGUST All judges concur. and JULIA AUGUST d/b/a TNT ENTERPRISES, Defendants/Appellees. Done this 15th day of February, 2005. No. 99,884. February 16, 2005 /s/ Ronald J. Stubblefield RONALD J. STUBBLEFIELD Acting Presiding Judge, Division IV Court of Civil Appeals

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Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 605 Once Upon a CLE

Dan Murdock: Man in Tights

f you missed Dan Murdock starring in the IOBA Legal Ethics Dinner: “Once Upon a CLE,” it’s not too late. We’ve got the EVI- a magical, DENCE! The program and materials are available as an online OBA/CLE program. mythical, Take a look at the demo at http://legalspan.com/okbar/ Here you can find your and musical favorite fairy tale and nursery rhyme characters, portrayed by OBA members and staff, as journey they guide you through a magical, mythical, and musi- cal journey of legal ethics. http://legalspan.com/okbar/

606 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 ANNUAL REPORT OF THE PROFESSIONAL RESPONSIBILITY COMMISSION AND PROFESSIONAL RESPONSIBILITY TRIBUNAL January 1, 2004, through December 31, 2004 SCBD No. 4996

Pursuant to the provisions of Rule 14.1, Oklahoma City; Bernice Shedrick, Stillwater; Rules Governing Disciplinary Proceedings, 5 and Douglas W. Sanders, Jr., Poteau. Non- O.S. ch. 1, app. 1-A (2003), this is the Annual Lawyer members were Richard Lundy, Clare- Report of complaints received and processed more; and Thomas Walbert, Oklahoma City. for 2004 by the Professional Responsibility Norma Eagleton served as Chairperson and Commission and the Professional Responsibil- Richard Lundy served as Vice-Chairperson. ity Tribunal. Commission members serve without compen- The Oklahoma Rules of Professional Con- sation but are reimbursed for actual travel duct, 5 O.S. ch. 1, app. 3-A (2003), is the stan- expenses. dard of conduct adopted and enforced by the Responsibilities: Supreme Court of the State of Oklahoma, and provide guidelines by which all attorneys are The Professional Responsibility Commission to practice law in Oklahoma. The Rules Gov- considers and investigates any alleged ground erning Disciplinary Proceedings provide the for discipline, or alleged incapacity, of any rules and procedures governing disciplinary lawyer called to its attention, or upon its own proceedings. motion, and takes such action as deemed appropriate, including holding hearings, THE PROFESSIONAL RESPONSIBILITY receiving testimony, and issuing and serving COMMISSION: subpoenas. The Commission is composed of seven per- Under the supervision of the Professional sons — five lawyer and two non-lawyer mem- Responsibility Commission, the Office of the bers. The attorneys are selected on rotating General Counsel investigates all matters three-year terms by the President of the Asso- involving alleged misconduct or incapacity of ciation, subject to the approval of the Board of any lawyer called to the attention of the Gen- Governors. The non-lawyers are appointed, eral Counsel by grievance or otherwise, and one each, by the Speaker of the Oklahoma reports to the Professional Responsibility House of Representatives and the President Commission the results of investigations made Pro Tempore of the Oklahoma Senate. No by or at the direction of the General Counsel. member can serve more than two consecutive The Professional Responsibility Commission terms. Terms expire on December 31st at the then determines the disposition of grievances conclusion of the three-year term. or directs the instituting of a formal complaint Lawyer members serving on the Profession- for alleged misconduct or personal incapacity al Responsibility Commission during 2003 of an attorney with the Oklahoma Supreme were B. Wayne Dabney, Oklahoma City; Court. The attorneys in the Office of the Norma Eagleton, Tulsa; Thomas C. Riesen, General Counsel prosecute all proceedings

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 607 under the Rules Governing Disciplinary Pro- Dale Cabbiness and Renee Warning whose ceedings, supervise the investigative process, terms expired June 30, 2004. and appear at all reinstatement proceedings. At their annual meeting on July 1, 2004, the PROFESSIONAL RESPONSIBILITY Professional Responsibility Tribunal voted to TRIBUNAL: appoint Sidney K. Swinson to serve a one-year The Tribunal is composed of twenty-one per- term as Chief Master and Julie Bates was sons — fourteen lawyers and seven non- appointed to serve a one-year term as Vice lawyers. The attorneys are selected on rotating Chief Master. three-year terms by the President of the Asso- VOLUME OF GRIEVANCES: ciation, subject to the approval of the Board of Governors. The non-lawyers are appointed by The Office of the General Counsel received the Governor of the State of Oklahoma. Terms 433 formal grievances involving 329 attorneys, expire on June 30th at the conclusion of the and 1,215 informal grievances involving 878 three-year term. attorneys, totaling 1,648 grievances received against 1,070 attorneys for 2004. The total The Supreme Court has established a panel number of attorneys differs because some of Masters designated to preside over and con- attorneys received both formal and informal duct hearings on formal disciplinary and inca- grievances. In addition, the Office handled 215 pacity hearings, as well as applications for items of general correspondence, which is mail reinstatement to the practice of law. Following not considered to be a grievance against an the filing of a formal disciplinary complaint attorney. with the Supreme Court, a three-member panel of the Professional Responsibility Tri- The Oklahoma, Tulsa and LeFlore County bunal is appointed by the Chief Master, and is Bar Associations assist in the investigation of composed of two attorney and one non-lawyer grievances against attorneys practicing in members. The Trial Panel presides at the hear- those counties and assist in arbitration of fee ing and prepares a report including findings of disputes. Those grievances thought to be in fact, conclusions of law, and a recommenda- violation of the Oklahoma Rules of Profession- tion to the Supreme Court as to discipline, if al Conduct are forwarded to the Office of the such is indicated. General Counsel for further investigation. The lawyer members of the Professional On January 1, 2004, 176 formal grievances Responsibility Tribunal who served during were carried over from the previous year. Dur- 2003 were: Julie Bates, Oklahoma City; ing 2004, 433 formal grievances were opened Stephen Beam, Weatherford; David Cummins, for investigation. The carryover accounted for Hollis; Kenneth L. Delashaw Jr., Marietta; John a total caseload of 609 formal investigations J. Gardner II, Ponca City; Pat Kent, Frederick; pending throughout 2004. Of those grievances, Jan Grant Johnson, Norman; Ronald Main, 412 investigations were completed by the Tulsa; J. Daniel Morgan, Tulsa; Nancy Pruitt, Office of the General Counsel and presented Tulsa; Cheryl Ramsey, Stillwater; Cynthia for review to the Professional Responsibility Sparling, Oklahoma City; Peggy Stockwell, Commission. Therefore, 197 investigations Norman; and Sidney K. Swinson, Tulsa. were pending on December 31, 2004. Steve Dobbs, Oklahoma City, and Fanne Lu The time required for investigating and con- Yaffee, Muskogee, were appointed to replace J. cluding each grievance varies depending on Daniel Morgan and Cynthia Sparling whose the seriousness and complexity of the allega- terms expired June 30, 2004. tions and the availability of witnesses and doc- The non-lawyer members were: Jim uments. The Professional Responsibility Com- Ambrose, Mangum; Dale Cabbiness, Edmond; mission requires the Office of the General Mike Gragg, Muskogee; Neil McElderry, Pur- Counsel to report monthly on all informal and cell; Rick Nagel, Norman; William J. Pettit, formal grievances received and all investiga- Broken Arrow; and Renee Warning, Edmond. tions completed and ready for disposition by Gray Blevins, Oklahoma City; Kimberly the Commission. In addition, the Commission Hawkins, Oklahoma City; and Robert Lemons, receives a monthly statistical report on the Tulsa, were appointed to replace Jim Ambrose, pending caseload.

608 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 DISCIPLINE BY THE PROFESSIONAL Sheridan, John H.T.; RESPONSIBILITY COMMISSION: Coweta May 17, 2004 During 2004, the Commission voted the fil- Jung, Steven Randall; ing of formal disciplinary charges against 12 OKC September 14, 2004 lawyers involving 20 grievances. Autrey, Allen Jude; Tulsa September 21, 2004 Pursuant to Rule 5.3(c) of the Rules Govern- ing Disciplinary Proceedings, the Professional Stephenson, Walter G; Responsibility Commission has the authority Tulsa November 15, 2004 to impose private reprimands, with the con- Cowley (Crabtree), Gina; sent of the attorney, in matters of less serious Tulsa December 14, 2004 misconduct or if mitigating factors reduce the Disciplinary Suspensions: sanction to be imposed. During 2004, the Com- mission issued private reprimands to 14 attor- Respondent Length neys involving 17 grievances. Effective Date In addition, 36 grievances were dismissed Sheridan, John H.T.; Coweta 6 mo. with a letter of caution that the conduct of the February 18, 2004 attorney was dangerously close to a violation Hummel, Catheryn; Tulsa 1 yr. of a disciplinary rule which the Commission April 20, 2004 believed warranted a warning rather than dis- Chappell, Cherie Marie; OKC 1 yr. cipline. The Commission dismissed 339 griev- June 8, 2004 ances due to lack of merit or loss of jurisdiction of the respondent. Loss of jurisdiction includes Dobbs, James Mark; Eufaula 2 yr/1day the death of the attorney, resignation pending June 15, 2004 disciplinary proceedings, lengthy suspension Public Censure: or disbarment or due to the attorney being stricken from membership for non-compliance Respondent Effective Date with MCLE requirements or non-payment of Burnett, Dochele; Austin, TX May 11, 2004 dues. Giger, Cordes; Norman June 8, 2004 DISCIPLINE IMPOSED BY SUPREME There were 37 cases pending before the COURT: Supreme Court on January 1, 2004. There were In 2004, 25 cases were acted upon by the 12 new formal complaints filed, two Rule 7 Supreme Court. There were two private repri- criminal judgments and six resignations pend- mands and six orders of dismissal issued by ing disciplinary proceedings filed for a total of the Supreme Court, one of which was due to 57 cases before the Court during 2004. There the disbarment of the attorney in another mat- were 12 reinstatements pending on January 1, ter. The public sanctions are as follows: 2004, and 10 petitions for reinstatement were filed in 2004. The Supreme Court approved Disbarment: five reinstatements, denied three, and two Respondent Effective Date were withdrawn by the petitioner. On Decem- ber 31, 2004, there were 12 petitions for rein- Wagnon, Jeffery Dane; statement and 32 formal complaints pending Pawhuska October 14, 2004 with the Supreme Court. (2 separate cases) SURVEY OF GRIEVANCES: Resignations Pending Disciplinary Proceedings Approved by Court: In order to better inform the Supreme Court, the bar and the public of the nature of the Respondent Effective Date grievances received, the numbers of attorneys Angel, Steven; Edmond January 27, 2004 complained against, and the areas of attorney Watson, John; Tulsa February 24, 2004 misconduct involved, the following informa- Martinez, Jason; tion is presented. Van Buren, AR March 2, 2004 Total membership of the Oklahoma Bar Robison, Benny H.; Association as of December 31, 2004, was Durant March 2, 2004 15,269 attorneys. Considering the total mem-

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 609 bership, the receipt of 1,648 formal and infor- The number of years in practice of the 329 mal grievances during 2004, involving 1,070 attorneys receiving formal grievances is as attorneys, constituted seven percent of the follows: attorneys licensed to practice law by the Okla- homa Supreme Court. 5 years or less 8% A breakdown of the type of attorney miscon- 26 years or more 28% duct alleged in the 433 formal grievances 6 - 10 years 15% received by the Office of the General Counsel is as follows:

Improper Advertising 1% Conflict of Interest Criminal Conviction 10% 0% Excessive Fee 3% 11 - 15 years 18%

21 - 25 years 18% Incompetence Neglect 11% 44% 16 - 20 years 13%

Personal Behavior The largest number of grievances received 9% were against attorneys who have been in prac- tice for 25 years or more. Considering the num- Trust Violations ber of practicing in-state attorneys, the largest Other 9% number have been in practice 25 years or more. 1% Misrepresentation Of the 433 formal grievances filed against 11% UPL 1% 329 attorneys in 2004, 190 are attorneys in urban areas and 134 attorneys live and practice in rural areas. Five of the grievances were filed against attorneys licensed in Oklahoma but Of the 433 grievances registered, the area of living out of state. practice is as follows: ACTION TAKEN BY THE PROFESSIONAL Workers’ Comp 2% RESPONSIBILITY TRIBUNAL: Administrative 3% Real Property 3% Personal Injury 8% Bankruptcy 5% The Professional Responsibility Tribunal hears disciplinary cases filed by the General Other 4% Counsel. The Tribunal also hears petitions for reinstatement filed by attorneys seeking rein- statement to the Bar Association. Both of these Criminal 25% proceedings are filed with the Clerk of the Litigation 18% Supreme Court. As of January 1, 2004, 25 cases were pending Corporate 1% before the Tribunal. In 2004, 12 cases were pre- sented to the Tribunal by the Supreme Court Commericial 1% for a total of 37 cases pending throughout the Estate Probate 8% year. Of those, the Tribunal heard and filed reports on 12 cases and in four cases the Family 22% respondent resigned pending disciplinary pro- ceedings or the matter was dismissed. On December 31, 2004, 21 cases were pending before the Tribunal. On January 1, 2004, six petitions for rein- statement were pending with the Tribunal and 10 new petitions were filed throughout the year. Of these 16 petitions for reinstatement,

610 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 eight cases were heard or reports were filed by law, and ethical standards within the profes- the Tribunal and one was withdrawn by the sion were discussed. This effort directs lawyers petitioner, leaving seven cases pending before to a better understanding of their ethical the Tribunal on December 31, 2004. requirements and the disciplinary process, and informs the public of the efforts of the Okla- ETHICS AND EDUCATION: homa Bar Association to regulate the conduct At the direction of the Professional Responsi- of its members. In addition, the General Coun- bility Commission, the attorneys in the Office sel and assistants were regular contributors to of the General Counsel provided informal the Oklahoma Bar Journal. ethics counseling to members of the Oklahoma Respectfully submitted this 17th day of Feb- Bar Association. This service assisted attorneys ruary, 2005, on behalf of the Professional in considering the ethical rules prior to the Responsibility Tribunal, the Professional occurrence of any potential misconduct. This Responsibility Commission, and the Office of task will now be handled by the newly created the General Counsel of the Oklahoma Bar position of Ethics Counsel. Association. During 2004, the General Counsel, his staff, /s/ Dan Murdock and the Professional Responsibility Tribunal DAN MURDOCK and Commission members spoke to county General Counsel bar association meetings, Continuing Legal Oklahoma Bar Education classes, law schools classes and var- Association ious civic organizations. In these sessions, dis- ciplinary and investigative procedures, case

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 611 IMMEDIATE RESERVATION REQUIRED: THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT And the Oklahoma City Chapter of the Federal Bar Association Invite you to attend a FREE CLE, to be held from 2:00 – 5:00 in the afternoon, Thursday, March 10, 2005, at the United States Courthouse, 200 N.W. 4th Street, Oklahoma City Highlights: • Panel Discussion with judges Stephanie Seymour, David Ebel and Robert Henry • Overview of 10th Circuit practice, procedure and common pitfalls • Important information about electronic case filing and CJA appointments RESERVE YOUR SPACE FOR THIS FREE CLE BY MARCH 7, 2005, by calling Gail McCuistion at (405) 228-7621 or e-mailing her at [email protected]. All attendees will be required to present a photo ID for admission to the U.S. Courthouse.

OBA member discount: Get a $100 discount by using the OBA Program Promotor Discount Code of PP01.

612 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 Pawnee Nation of Oklahoma UNITED STATES DISTRICT COURT Code Development FOR THE WESTERN DISTRICT The Pawnee Nation of Oklahoma and the Pawnee OF OKLAHOMA Tribal Development Corporation are seeking bids for the development of codes to support and enhance NOTICE OF PROPOSED LOCAL business development and gaming. The project must COURT RULE CHANGES be completed by July 2005 including final review by the tribal attorney. Some anticipated activities are: Pursuant to Rule 83, Fed. R. Civ. P., the Court 1. Complete review of existing legal authorities by hereby gives notice and opportunity for comment determining if there are: written Attorney General on proposed changes to its local civil and criminal Opinions; tribal regulations; resolutions which rules. Most revisions involve minor clerical enact, rescind or affect legislation. changes, e.g., deleting the word “application”from 2. Outline the roles of the staff, elected officials and various rules and making other modifications attorneys in writing laws and regulations. This consistent with the Court’s transition to electronic may include on-going training for staff and filing and revised privacy rules. The substantive elected officials on the difference between laws revisions are found in: and regulations. The attorney will also work closely with the Pawnee Tribal Development Civil Rules: Corporation director. LCvR7.2 (c) and (l) adding new language 3. Establish a list of priorities for development of a commercial code and a gaming code. An prohibiting multiple important starting point will be to have staff requests in one motion members identify a problem which the legislation LCvR16.1 new Joint Status Report will solve and consider tribal resources needed Form to implement the law. 4. Update the tribal tax act. LCvR16.3(c) deleting subsections 5. Coordinate with all attorneys or other consultants LCvR26.1 adding the Discovery Plan working on any legislation for Pawnee Nation. to the Joint Status Report 6. Conduct or attend community meetings as needed to gather or present information and LCvR67.1 deleting all except the first answer questions about the legal aspects of paragraph business development or related issues. LCvR83.2(g) requiring counsel admitted 7. Development of needed commericial and gaming pro hac vice to file an entry codes for the Pawnee Nation of Oklahoma. of appearance form and Those interested legal firms having the capabilities register for electronic filing and qualifications to perform the services described in this announcement, are invited to respond by Criminal Rules: submitting RFP’s by 5:00 p.m., March 16, 2005 to: LCrR57.2(c) requiring counsel admitted Pawnee Nation of Oklahoma pro hac vice to file an entry Attn: Dawna Hare, Exe. Director of appearance form and PO Box 470 Pawnee OK 74058 register for electronic filing The requests for proposals will be evaluated on LCrR30.1 deleting diskette for jury the following criteria: instructions Past performance on contracts with Tribal LCrR32.2 new rule regarding governments, government agencies, and private Sentencing Memoranda industries in terms of cost control, quality of work, and Motions compliance with performance schedules. Copies of the proposed revised rules are available Proposed plan for the executed scope of work. on the Court’s website (www.okwd.uscourts.gov) Experience with projects of similar size and scope and at the District Court Clerk’s Office. The Court in the development of commercial, gaming and civil invites written comments from any interested codes. person. Send comments to the Court Clerk, Attention: Proposed Rule Change, Room 1210, For more information contact the Pawnee Nation of Oklahoma at (918) 762-3621 200 N.W. 4th Street, Oklahoma City, OK 73102. or e-mail [email protected] The Court will accept comments until or [email protected]. April 1, 2005.

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 613 Do You Need the Latest Information on a Particular Area of Law?

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614 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 Mandates Issued

THE SUPREME COURT 100,027 Allstate Insurance and Hartford v. Friday, February 18, 2005 Tahmoores Tim Missaghi and the Workers’ Compensation Court. 97,663 H & S Rehabilitative Treatment Services, Inc. v. Da Vinci Motion 100,113 Service Collection Association, Graphics, L.L.C. Inc. v. David E. Buckmaster and Valentina K. Buckmaster. 98,053 Roger McGill and Bonnie McGill v. Donald Alexander, Jr and Air- 100,195 Carla D. Shiles, individually and gus Midsouth, Inc. as Personal Representative for Larry T. Shiles, deceased v. Cathy 98,090 Laura L. Barnes, now Hendrix v. S. Ray and Farmers Insurance Jason L. Barnes. Company, Inc. 98,701 Peggy K. Pappas v. Waggoner’s 100,250 Suoc Pham and Tia Nguyen v. Heating & Air, Inc., John Brum- State Farm Mutual Automobile field, Pamela B. Long and Cather- Insurance Company and Amanda ine M. Webb. Kemmerly. 98,703 Bird Construction Company, Inc. 100,465 Charles Dennis and Toni Dennis, v. Oklahoma City Housing husband and wife v. Lance Ruffel Authority. Oil & Gas Corporation. 98,806 Vernon D. Keys v. Ruth Ellan 100,486 In the Matter of the Adoption of Talavera and Zurich American Baby Boy Fletcher/Chosen Child Insurance Company. Adoption Agency, Inc. 99,553 In the Matter of the Estate of Frie- 100,557 Roy Taylor Martin and Catherine da I. Moore, Deceased Mildred L. Irene Martin v. Chubb National Ward, Personal Representative of Insurance; Northwestern Pacific the Estate of Martin J. Ward, Indemnity Company; and The Deceased v. Dru Warren, Personal Quarles Agency, Inc. Representative. 100,608 Laser Engineering & Fabrication, 99,569 In the Matter of Temporary Inc. and Commerce & Industry Guardianship of John Stamm, an Insurance v. Carl D. Smith, incapacitated person. John National American Insurance, Stamm, Elizabeth Esmen, Edwin Mega Life & Health Insurance Kessler, State of Oklahoma, ex rel., Company and the Workers’ Com- Department of Human Service pensation Court. Division v. Jack I. Pryor. 100,623 Walker B. Nelson v. Lynda J. Nel- 99,704 Robert Olson v. Continental son. Resources, Inc., Harold Hamm, Tom Luttrell, Davis Operating 100,794 Carla Jennings v. Jimmy W. Jen- Company and William H. Davis. nings. 99,902 Multiple Injury Trust Fund v. Don- 100,885 State of Oklahoma, ex rel., The ald Richard Manning and the Board of Regents of the University Workers’ Compensation Court. of Oklahoma v. William D. Tiffee. 99,997 Burlington Resources Oil and Gas 101,001 Bayway Refining Company and Company v. State of Oklahoma, ex Tosco Corporation v. Helm Inspec- rel., Oklahoma Tax Commission. tion Service, Inc., Shelter Mutual Insurance.

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 615 101,050 Estate of Mathenia, Deceased, 101,463 Deborah East v. Park Medearis Net-Hetep A.A Ta’Nesert v. Carl and Medearis & Medearis Law D. Mathenia, Roxanne Hill-Mathe- Firm. nia, Timothy C. Edwards, Paul A. 101,468 Rick Akerman and Tammy Aker- Scott, Melissa G. Thomas, Shirley man v. Mid-Sourth Air, Inc., A. Thomas, Personal Representa- d/b/a MSA Construction, Inc., tive of Estate of Mathenia, etc., et al. Deceased. 101,469 Rick Akerman and Tammy Aker- 101,142 Ottawa Tribe of Oklahoma v. man v. Mid-South Air, Inc., d/b/a Michael “Mike” Stuart d/b/a MSA Construction, Inc., etc., et al. American Ice Machines. 101,475 W. M. Miller v. J. L. Miller. 101,159 City of Muskogee, Oklahoma, a Municipal Corporation v. Paul 101,519 In Re: The Marriage of Donna K. Hughes & Holly Hughes. Kahl v. Kristopher D. Kahl. 101,319 Terrace Garrett v. Cindy Giles, 101,529 John Mosier v. Court of Criminal Jamey Hughes, Dale Carroll, Den- Appeals, The Honorable Charles nis Cunningham and Nancy Stan- A. Johnson. drige. 101,564 Stephen Grider and Beverly L. 101,339 Louise T. Jackson v. Johnie Bright Grider, individually and on behalf Jackson. of those similarly situated v. Com- paq Computer Corporation. 101,349 Ralph Brewer and Karen Brewer, husband and wife, d/b/a Brewer Friday, February 25, 2005 Farmer v. Tyson Foods, Inc., and The Pork Group, Inc., Daniel 98,634 Worldlogics Corporation v. Yount, d/b/a Daniel Yount Chatham Reinsurance Corpora- Construction. tion and Mapfre Reinsurance Cor- poration. 101,366 Manuel Alvarez v. Sequoyah Fuels Corporation; Sequoyah Fuels 99,248 Barbara King v. Anthony King. International; General Atomics 100,021 Lewis Harris v. Farmers Insurance and Sequoyah Fuels Holding Co. Company, Inc., a Kansas 101,381 Wilson Lynn McCrimmon v. Carla Corporation. Louise Rountree McCrimmon. 100,485 Anna R. Lambert v. Hibernia 101,413 Rita Miller a/k/a Rita Ballentine National Bank. v. Safeco Insurance Co of America, 100,582 Ira Williams v. Nova Store Sys- a foreign corporation. tems, L. L. C. and Compsource 101,414 Paul Dan Droke, Jr. v. Karen J. Oklahoma and the Workers’ Com- Morrison. pensation Court. 101,450 Eric Statueville v. Poteau Ford 100,813 Timothy Brian O’Neal v. Kristy D. Mercury Inc., formerly Poteau O’Neal and Lonney Gene Baxter Motor Company, Inc. and Vernon aka Lonnie Gene Baxter. Roberts. 100,911 Meridith R. Brown v. Lucien 101,460 Linda Sue Nix v. Wal-Mart Stores, (Luke) B. Crosland. Inc., American Home Assurance 100,964 Mary Malone, mother and next Company and the Workers’ Com- friend to David W. Griggs, pensation Court. Deceased v. Arcon, Inc. and Sar- 101,462 Lahoma R. Edwards v. state of tain Structures. Oklahoma, ex rel., Department of Public Safety.

616 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 101,305 Chris Edgmon d/b/a Edgmon 100,140 Wow LLC and American Home Farms v. Midwest Cattle Compa- Assurance Company v. Mike Mes- ny, Inc., Randy Heflin and Rusty sel, Phoenix Industries, Inc. and Reyher. Credit General Insurance Compa- ny &/or Oklahoma Property & 101,538 Sonny Lauren Harmon, Sr., on Casualty Guaranty Fund (NLC) behalf of the Harmon Family, their and the Workers’ Compensation Personal Belongings and Damages Court. to the Structures at 302 N. Elm and 609 E. Bradley Streets in Pauls Val- 100,181 Gerald D. Daniels v. Cornell Cor- ley, Oklahoma, Garvin County v. rections Corporation, David Cor- Pauls Valley Police Department, nell, Sam Calborne, J. McCormick, Agents Lydia Williams and David M. Haider and D. Brannan. Cathey, The Oklahoma Bureau of 100,193 Sinclair Communications, Inc., Investigation, ex rel., State of d/b/a KOCB-TV v. Computer Oklahoma. Connections, Inc. and Kevin 101,561 Patrick O’Brien and Theara Henry. O’Brien v. Brass Brick Homes, Inc. 100,483 In the Matter of the State of Okla- 101,600 Garfield County Court Clerk v. homa in the interest of N.R.H., Douglas A. Spitznas, Pro Se. S.R.H. & C.R.H., Alleged Deprived Children. Christy Har- COURT OF CIVIL APPEALS well v. State of Oklahoma. Wednesday, January 12, 2005 100,613 Robert E. Renbarger and Eleanor 99,441 Jesse R. Camp, Jr., a/k/a Rudy Renbarger v. Chaparral Energy L. Camp v. Kathleen C. Camp d/b/a L. C. Camp Oil Company. 100,641 ABC Supply Company, Inc. and 99,503 In the Matter of the Guardianship American Manufacturers Mutual of K. M. & A. M., minor children Insurance Companies v. City Dry- Bonnie Agee v. Oklahoma Depart- wall Supply Co., Inc., a/k/a ment of Human Services. Stockers and American Interstate 99,624 Judith K. Holsted v. Willard D. Insurance Company. Holsted. 100,667 Brandi Christian, Ronald Hard- 99,871 In the Matter of K.D., T.D., & D.D., zog, Ryshell Schrader, Debra Alleged Deprived Juveniles as Mabry, John Delk, Amy Delk, and defined by the laws of the State of Cody Delk, as beneficiaries of the Oklahoma. Dale & Mary Dry v. W. A. and Irene Hollarn Revocable State of Oklahoma. Trust and on behalf of T.M., a minor and J. H., a minor and oth- 99,934 Elizabeth Martin n/k/a Elizabeth ers similarly situated. Jimmy Hol- Koontz v. Todd Lavell Martin. larn, John Hollarn and Kathy 100,030 Karen Szymanski v. Sharon Ann Dirickson, also as beneficiaries of Socia, as Personal Representative the W. A. and Irene Hollarn Revo- of the Estate of James Jay Socia, cable Trust v. Adrienne Jeannette Deceased and as Parent and Next Smith and Sherry McElfresh and Friend of Sarah Ann Socia, a Communication Federal Credit minor. Union. 100,698 Holly Higgins v. Morequity Inc. and Tulsa Abstract and Title Com- pany, LLC.

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 617 100,818 J. W. Doolin v. The State of Okla- 98,875 Patti Favell, now Phaneuf v. John homa, ex rel., Oklahoma Employ- Favell and Key Temporary Per- ment Security Commission; State sonnel, Inc. of Oklahoma, ex rel, Board of 99,643 Muthana Al-Nasseri v. Memorex- Review of the Oklahoma Employ- telex, Home Insurance Company ment Security Commission and and the Workers’ Compensation Demetris G. Matthews. Court. 100,864 Metro Wrecking & Recovery, Inc. 100,442 Ladonna R. Fuller v. Dollar Gener- v. City of Oklahoma City. al Corporatrion and the Workers’ 100,902 M. Eddie Dillon v. Sutton Tractor, Compensation Court. Inc. and the Workers’ Compensa- 100,445 Webco Industries, Inc. v. Thermo- tion Court. dyne Industries, Inc. 100,984 James Waller v. Multiple Injury 100,851 Leonard Mays v. Tony Stidley, an Trust Fund and the Workers’ individual and Emery Worldwide, Compensation Court. Inc., a/k/a Emery Air Frieght, a 101,266 Steve and Ronald Shanks v. Delaware Corporation and CNF George Grayson. Properties, Inc. 101,368 Letha Roberson v. Jeffrey M. 100,914 Farm Properties, Inc. v. Country- Waltner, M.D., Inc., Jeffrey M. wide Home Loans, Inc. Waltner, M.D. and Orthopaedic 101,076 Earline Mitchell v. El Chico and Sports Medicine Center-Nor- Restaurants of American, Inc. man, P.C. 101,145 Brooks Power, LLC, an Oklahoma 101,378 Bobbie Joe Wellner, for herself and limited liability company v. all others similarly situated v. City Williams Distributed Power of Norman, Oklahoma, a munici- Services, Inc., a Delaware corpora- pal corporation. tion. 101,523 John W. Shawver, III and Carrie 101,257 Beavers Bend Management d/b/a Shawver, husband and wife v. Jack Beavers Bend Marina v. John Turner and Kelly Turner, individu- Migliaccio and Vickie Cotton. ally and as trustees of the KDT revocable trust. 101,285 The Law Office of Rob L. Pyron and Rob L. Pyron, an individual v. Friday, February 25, 2005 Chris Heinzig, Personal Represen- 98,514 The Meadows Association, Inc. v. tative of the Estate of Leon Sis-Bro Enterprises. Heinzig, an individual. 98,625 James Ernest Lane v. University Hospital, et al.

618 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 Disposition of Cases Other Than by Published Opinion

COURT OF CRIMINAL APPEALS F-03-1291 — William Vanderver Prahm, SUMMARY OPINIONS Appellant, was tried by jury for the crime of Wednesday, February 16, 2005 Lewd Molestation in case No. CF-03-183 in the District Court of Canadian County. The jury F-2004-237 — Coralynn Clarise Herring, returned a verdict of guilty and recommended Appellant, was tried by jury for the crime of as punishment five (5) years imprisonment. count one, possession of a controlled danger- The trial court sentenced accordingly. From ous substance and count three, obstructing an this judgment and sentence William Vanderver officer in case No. CF-2003-181 in the District Prahm has perfected his appeal. AFFIRMED. Court of Grady County. The jury returned a Opinion by Chapel, P.J.; Lumpkin, V.P.J., verdict of guilty and recommended as punish- concur; Johnson, J., concur; Lile, J.,concur. ment fifteen years imprisonment and one year in county jail, respectively. The trial court sen- Friday, February 18, 2005 tenced accordingly. From this judgment and F-2003-1383 — Appellant, Samuel W. Weicht, sentence Coralynn Clarise Herring has perfect- was convicted by a jury in Sequoyah County ed her appeal. AFFIRMED. Opinion by Lile, J.; District Court, Case No. CF-2001-367, of Count Chapel, P.J., concurs in results; Lumpkin, V.P.J., 1: Second Degree Arson; Count 2: Larceny of concurs; Johnson, J., concurs. an Automobile; Count 3: Third Degree Arson; Thursday, February 17, 2005 and Count 4: Second Degree Burglary. The jury returned a verdict of guilty and recommended F-2003-1313 — Roberto Antonio Jackson, punishment as follows: Count 1, twenty years Appellant, was convicted by a non- jury trial of imprisonment and a $10,000 fine; Count 2, Possession of Cocaine with Intent to Distribute three years imprisonment; Count 3, three years (Count I), and Possession of Marijuana with imprisonment; and Count 4, five years impris- Intent to Distribute (Count II) after former con- onment. The trial court sentenced in accor- viction of a felony in case No. CF-2003-10 in dance with the jury’s recommendation, order- the District Court of Texas County. The trial ing the sentences to be served consecutively. court sentenced Jackson to thirty (30) years From this judgment and sentence Samuel W. imprisonment on each count to be served con- Weight has perfected his appeal. AFFIRMED currently. From this judgment and sentence Opinion by Johnson, J.; Chapel, P.J., concurs in Roberto Antonio Jackson has perfected his part/dissents in part; Lumpkin, V.P.J., concurs; appeal. AFFIRMED. Opinion by Chapel, P.J.; Lile, J., concurs. Lumpkin, V.P.J., concur; Johnson, J., concur; Lile, J., concur. PCD-2002-627 — Petitioner Wayne Garrison was convicted of First Degree Murder in the F-2003-1315 — Fredrick Norman Scott, District Court of Tulsa County, Case Number Appellant, was convicted by a non-jury trial of CF-1999-5129, and sentenced to death. He Possession of Cocaine with Intent to Distribute appealed his conviction to this Court in Case (Count I), Possession of Marijuana with Intent No. D-2001-1513. We affirmed his conviction, to Distribute (Count II) after former conviction but remanded his case for resentencing. Garri- of a felony in case No. CF-2003-10, in the son v. State, 2004 OK CR ___, ___ P.3d ___. District Court of Texas County. The trial court While our Opinion in his regular appeal was sentenced Scott to thirty (30) years imprison- pending, Petitioner filed this, his first applica- ment on each count to be served concurrently. tion for post-conviction relief, on June 14, 2004. From this judgment and sentence Fredrick After carefully reviewing Petitioner’s Applica- Norman Scott has perfected his appeal. tion for Post-Conviction Relief and Motion for AFFIRMED. Opinion by Chapel, P.J.; Lump- Evidentiary Hearing, we find the same are kin, V.P.J., concur in results; Johnson, J., concur; hereby DENIED. The adjudication of this Lile, J., concur. Application for Post-Conviction Relief applies only to the guilt stage issues in this case due to

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 619 the fact the decision on direct appeal affirmed Chapel, P.J., concurs; Lumpkin, V.P.J., concurs; the judgment of guilt but remanded for resen- Johnson, J., concurs; Lile, J., concurs. tencing due to ineffective assistance of appel- Friday, February 25, 2005 late counsel. This decision shall not serve as a bar to Petitioner filing an original Application F-2004-319 — Appellant Torrin Lonzell for Post-Conviction Relief as a part of any Smith was tried by jury and found guilty of future appeal of the verdict rendered on resen- First Degree Rape (Count II), and Indecent or tencing. Opinion by Lumpkin, V.P.J., Chapel, Lewd Acts With a Child Under Sixteen (Count P.J., dissent; Johnson, J. concur in result;, Lile, III), both counts After Former Conviction of J., concur. Two or More Felonies, Case No. CF-2003-4622, in the District Court of Oklahoma County. The Wednesday, February 23, 2005 jury recommended as punishment sixty (60) J 2004-1092 — The order of the District Court years imprisonment in Count II and thirty (30) of Seminole County, District Court Case No. years imprisonment in Count III. The trial CF-2002-82, granting the State’s motion to court sentenced accordingly, ordering the sen- bridge Appellant, M.C.D., a Youthful Offender, tences to run consecutively. It is from this judg- to the Department of Corrections, is ment and sentence that Appellant appeals. AFFIRMED. Opinion by Lumpkin, V.P.J.; AFFIRMED. Chapel, P.J., concurs; Lumpkin, Chapel, P.J., recuse; Johnson, J., concur; Lile, J., V.P.J., concurs; Johnson, J., concurs. concur. RE-2004-779 — Bryan Cornell Steele, Appel- Monday, February 28, 2005 lant, appealed to this Court from an order issued by the Honorable Bruce Sewell, District F-2004-159 — Clonnie A. Layman, Appel- Judge, revoking Appellant’s three (3) year sus- lant, was tried by jury for the crime of Count I, pended sentence in Case No. CF-2002-45 in the Trafficking in Illegal Drugs (Methampheta- District Court of Wagoner County. mine) after former conviction of a felony , and AFFIRMED. Chapel, P.J., concurs; Lumpkin, Count II, Driving Under the Influence of Alco- V.P.J., concurs in part and dissents in part; hol in case No. CF-2004-198 in the District Johnson, J., concurs; and Lile, J., concurs. Court of McIntosh County. The jury returned a verdict of guilty and recommended as punish- RE-2004-267 — Clyde Harold Boswell, ment life imprisonment and a $200,000.00 fine Appellant, was convicted of Assault and Bat- for Count I, and one (1) year imprisonment tery with a Dangerous Weapon in Case No. and a $1,000.00 fine for Count II to be served CF-2000-176 in the District Court of Stephens concurrently. The trial court sentenced accord- County. Appellant was sentenced to five (5) ingly. From this judgment and sentence Clon- years with all but six (6) months suspended. nie A. Layman has perfected his appeal. The On March 10, 2003, Appellant’s suspended Judgments and Sentences of the District Court sentence was revoked in full. From this judg- are REVERSED and REMANDED for a new ment and sentence, Appellant appeals. Appel- trial. Opinion by Chapel, P.J.; Lumpkin, V.P.J., lant’s judgment and sentence is AFFIRMED. concurs in results; Johnson, J., concurs; Lile, J., Chapel, P.J., concurs; Lumpkin, V.P.J., concurs; dissents. Johnson, .J., concurs; Lile, J. concurs. Tuesday, March 1, 2005 Thursday, February 24, 2005 F-2003-1387 — Richard W. Sipe, III, Appel- RE 2004-0761 — The revocation of Appel- lant, was tried by jury for the crime of Count 1 lant, Walter Pofahl’s, suspended sentence in — Aggravated Manufacture of Controlled the District Court of Muskogee County, Dis- Drug; Count 2 — Possession of a Firearm in trict Court Case No. CF-2002-0813, is Commission of a Felony; Count 3 — Failure to AFFIRMED. Chapel, P.J., dissents; Lumpkin, Affix Oklahoma Tax Stamp to Controlled V.P.J., concurs; Johnson, J., concurs; Lile, J., con- Drug; Count 4 — Unlawful Possession of Para- curs. phernalia in Case No. CF-2002-542 in the Dis- trict Court of Rogers County. The jury returned RE 2004-0490 — The revocation of Appel- a verdict of guilty and recommended as pun- lant, Steven Bill Wolfes’, suspended sentence ishment sixty (60) years imprisonment and a in the District Court of Creek County, District fifty thousand dollar ($50,000) fine on Count 1; Court Case No. CF-2001-0086, is AFFIRMED. ten (10) years imprisonment on Count 2; one

620 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 (1) year imprisonment on Count 3; and one (1) ACCELERATED DOCKET year imprisonment on Count 4. The trial court Wednesday, February 16, 2005 sentenced accordingly and ordered Appellant J-2004-1013 — The Appellant, C. B. M., to serve the sentence on Counts 1 and 2 con- appealed to this Court from an order of the Dis- secutively; Count 3 suspended, but consecu- trict Court of Tulsa County, entered by the Hon- tive to Counts 1 and 2; and Count 4 consecu- orable P. Thomas Thornbrugh, District Judge, tively with credit for time served. From this granting the State’s motion to bridge Appellant judgment and sentence Richard W. Sipe, III has to the Department of Corrections in Case No. CF- perfected his appeal. AFFIRMED. Opinion by 2002-1791. AFFIRMED. Chapel, P.J., concurs; Johnson, J.; Chapel, P.J., concur in results; Lumpkin, V.P.J., concurs; Johnson, J., concurs; Lumpkin, V.P.J., concur; Lile, J., concur. and Lile, J., not participating. F-2003-1297 — Thomas Edward Gale, COURT OF CIVIL APPEALS Appellant, was tried by jury for the crimes of: (Division No. 1) Count 1 — Manufacturing Methamphetamine; Thursday, February 17, 2005 Count 2 — Possession of a Controlled Danger- ous Substance (Methamphetamine); Count 3 99,484 — William C. Porter & Mary June — Possession of the Precursor Red Phospho- Swickard, Plaintiffs/Appellees, vs. Manville rus Without a Permit; Count 4 — Possession of Redman, individually & as Personal representa- the Precursor Ephedrine Without a Permit; and tive of the Estate of Marjorie H. Bullard, Count 5 — Maintaining a Dwelling Where Deceased and as Personal Representative of the Drugs are Used or Sold in Case No. CF-2002- Estate of Deanna K. Redman, Deceased, Defen- 162 in the District Court of Okmulgee County. dant/Appellant. Appeal from the District Court The jury returned a verdict of guilty and of Stephens County, Oklahoma. Honorable Joe recommended as punishment twenty (20) H. Enos, Judge. The main issue on appeal is years imprisonment on Count 1; ten (10) years whether Marjorie Bullard, now deceased, intend- imprisonment on Count 2; seven (7) years ed to create joint tenancies with rights of sur- imprisonment on Counts 3 & 4; and five (5) vivorship when she added her niece, Deanna years imprisonment on Count 5. The trial court Redman, to a “joint” savings account and certifi- sentenced accordingly and imposed a cate of deposit at Local Federal Bank in 1992. Sig- $50,000.00 fine on Count 1 and ordered the nature cards stated the accounts were “joint” and sentences to run concurrently and suspended listed the names on the accounts as Marjorie or all but the first ten years of Appellant’s sen- Deanna. However, the signature cards did not tence in Count 1, as well as, $30,000.00 of the contain any language of survivorship or tenancy. fine imposed. From this judgment and sen- In our view, this is ambiguous due to the lack of tence Thomas Edward Gale has perfected his the express language of a joint tenancy necessary appeal. Counts 1, 2, 3 and 5 AFFIRMED. Count under 60 O.S. 2001 §74. To determine whether a 4 is REVERSED with Instructions to DISMISS. joint tenancy has been created when the express Opinion by C. Johnson, J.; Chapel, P.J., language is absent, five factors are considered. concur; Lumpkin, V.P.J., concur; Lile, J., not No single factor is determinative. The evidence participating. regarding Marjorie’s intent was conflicting. In addition, the bank representative could not C-2004-1187 — Kevin Walter Gray, Petitioner remember the transaction, so there was no testi- pled nolo contendere to three counts of Cruelty mony regarding whether Marjorie inquired to Animals in Case Nos. CF-2003-44, 2003-45 & about setting up a joint tenancy. Further, there 2003-46 in the District Court of Nowata Coun- was no evidence Deanna ever used these ty. He was sentenced to five years imprison- accounts for her personal use, contributed any ment and a $500 fine in each case, plus various funds or took possession of the accounts during costs and assessments. Petitioner’s motion to Marjorie’s lifetime. After reviewing the entire withdraw plea was denied. Petitioner filed his record, we cannot say the trial court’s decision Application for Writ of Certiorari. DENIED. that the Local Federal Bank accounts were not Opinion by C. Johnson, J.; Chapel, P.J., concurs; joint tenancy was against the clear weight of the Lumpkin, V.P.J., concurs; Lile, J., concurs. evidence. We also find no error in applying a constructive trust against Manville Redman, Deanna’s spouse. The money in these accounts should have been distributed through the resid-

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 621 ual clause in Marjorie’s will instead of going to vidual guarantor of completion on a major con- Deanna and then to Manville upon Deanna’s struction project and the other sought thousands death. Manville was the personal representative of dollars in liquidated damages on his behalf. of Marjorie’s estate and is holding money that There is no dispute Dill knowingly accepted the rightfully belongs to the probate estate. benefits of the Law Firm’s work. Indemnity aris- Although Manville’s actions were not fraudu- es out of an independent legal relationship under lent, it would be inequitable for Manville to which the indemnitor owes a duty either in con- retain this money. Marjorie’s will beneficiaries tract or in tort to the indemnitee “apart from the were entitled to the funds, and Manville would joint duty they owe to the injured party.” Com- be unjustly enriched at the expense of the benefi- petent evidence exists to support the trial court’s ciaries if the constructive trust were not implied. finding that Dill and Law Firm mutually agreed AFFIRMED. Opinion by Mitchell, J.; Adams, P.J., to enter a contract for legal services. The court’s and Hansen, J. (sitting by designation), concur. award of $168,178.43 to Law Firm for attorney fees and costs is AFFIRMED. Opinion by 99,552 — Atkinson, Haskins, Nellis, Holeman, Mitchell, J.; Adams, P.J., and Hansen, J. (sitting by Phipps, Brittingham and Gladd, an Oklahoma designation), concur. Professional Corporation, Plaintiff/Appellee, vs. James W. Dill, an individual, Defendant/Appel- Thursday, February 24, 2004 lant. Appeal from the District Court of Tulsa, 99,537 — City of Sulphur, A Municipal Corpo- Oklahoma. Honorable J. Michael Gassett, Judge. ration, Plaintiff/Appellee, vs. Melvin Earl Appellant (Dill) is a Tulsa businessman and real- Braden, Defendant/Appellant. Appeal from the estate developer. Appellee (Law Firm), which District Court of Murray County, Oklahoma. served as counsel for Dill and his business enti- Honorable John H. Scaggs, Judge. The trial court ties, filed the present action against Dill for treated this case as a quiet title action and refused unpaid legal services. After a bench trial, the trial to grant Braden a jury trial. The court quieted court found the parties had an enforceable agree- title to 38.96 acres of land and several adjoining ment under which the Law Firm provided legal street right-of-ways in favor of the City of Sul- services to Dill personally, and Dill breached the phur. Braden appeals and argues the trial court agreement by failing to pay. The court entered erred by (1) denying him a jury trial; (2) quieting judgment against Dill in the amount of title in the subject proper; (3) failing to consider $168,178.43. On appeal, Dill contends he is not his claim as an occupying claimant; and (4) refus- obligated, individually, to pay legal fees incurred ing to grant a trial continuance. The City’s action by two of his limited partnerships; he did not was filed as a common law ejectment, which is have an express contract with Law Firm for per- an action to recover specific real property. 12 O.S. sonal legal services; evidence does not support 2001 §556. The right to a jury trial is determined the existence of an implied contract for personal by the character of the pleadings. Based on the legal services; even if an implied contract did record before us, we find this action was an eject- exist, it cannot exceed the value of the services ment proceeding, and not a quiet title action. The provided; any benefits he received as a result of trial court erroneously refused Braden’s request the lawsuits were incidental; and both limited for a jury trial in violation of 12 O.S. 2001 §556 partnerships indemnified him from liability, and Art. 2, §19 of the Oklahoma Constitution. including legal fees. Evidence shows the Law REVERSED AND REMANDED FOR JURY Firm represented Dill concerning obligations for TRIAL. Opinion by Mitchell, J.; Adams, P.J., and which he was personally liable. It is indisputable Hansen, J. (sitting by designation), concur. that Dill, individually, was a named party in both the lawsuits in question. There is competent evi- (Division No. 2) dence Dill is personally responsible for the legal Tuesday, February 22, 2004 fees Law Firm seeks. We also find competent evi- dence of mutual intent to enter an on-going 98,465 — James D. Sill, Plaintiff/Appellant, v. agreement for personal legal services, either Focus Energy, Inc., formerly SMR Natural Gas express or implied. Regarding the services pro- Ventures, Inc., Defendant/Appellee. Appeal vided, Dill disputes neither the Law Firm’s from the District Court of Blaine County, Hon. hourly rate nor the total hours it billed. The Mark A. Moore, Trial Judge. After a non-jury record shows the lawsuits were of substantial trial, James D. Sill was determined to have for- benefit to Dill because one relieved him of mil- feited his rights to production by failing to time- lions in potential personal liability as the indi- ly consent to a sidetracking operation. The trial court entered its findings of fact and conclusions

622 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 of law finding that both parties had breached the resulted in a material increase in disability of 5%. contract. The remedy fashioned by the court was In making an award of this 5% material increase, that instead of forfeiting his entire interest in the the court directed employer to pay 20 weeks of leasehold, Sill would retain his interest in the Jor- compensation. Dr. Young’s evaluation and dan #1 Well and leases, except that Sill forfeited expert opinion are clearly competent evidence to his interest in the producing interval and forma- support the trial court’s finding that Claimant tion arising from the sidetracking operation. Sill was not permanently and totally disabled. appeals. The trial court’s decision will not be Unlike the issue of permanent total disability, the reversed unless we find that it is clearly against issue of determining the proper number of the weight of the evidence. The trial court’s find- weeks of compensation for the 5% material ings of fact and conclusions of law are supported increase involves a question of law. The order by sufficient competent evidence and adequate- determining compensation for the 15% ly explain the decision. Accordingly, this matter permanent partial disability to the body as a is summarily affirmed under Rule 1.202(b) and whole from the last injury properly awarded (d), 12 O.S.2001, ch. 15, app. 1. SUMMARILY Claimant 66 weeks of compensation (36 weeks AFFIRMED. Opinion from Court of Civil and 30 weeks). The order determining compen- Appeals, Division II, by Reif, P.J.; Stubblefield, J. sation for the 5% material increase should have (sitting by designation), concurs, and Rapp, J., awarded Claimant 25 weeks. In awarding 20 dissents. weeks instead of 25 weeks, the trial court erred as a matter of law. Accordingly, we modify that 99,170 — Susan Wynne Schiller, Plaintiff/ portion of the trial court’s order to reflect 25 Appellee, v. Tom David Schiller, Defendant/ weeks of compensation are due for the material Appellant. Appeal from the District Court of increase. AWARD SUSTAINED AS MODIFIED. Tulsa County, Hon. J.R. Pearman, Trial Judge. Opinion from Court of Civil Appeals, Division II, This appeal arises from proceedings on remand by Reif, P.J.; Taylor, J., and Stubblefield, J. (sitting for the trial court to redetermine Wife’s post- by designation), concur. decree motion to tax attorney fees, costs, and sanctions. Husband asserts that the award, as (Division No. 3) redetermined on remand, was inequitable and Friday, February 18, 2005 that a full adversarial hearing should have been 99,501 — Sonja Dee Rose, Plaintiff/Appellee, held. The record fully supports the trial court’s v. City of Tulsa, a municipal corporation, Defen- findings of unreasonable litigation conduct on dant/Appellant. Appeal from the District Court the part of Husband that exacerbated the litiga- of Tulsa County, Oklahoma. Honorable Jane P. tion. Our review of the record on appeal fails to Wiseman, Judge. Defendant/Appellant City of show an abuse of discretion on the part of the Tulsa (City) seeks review of the trial court’s trial court in ordering Husband to pay attorney granting a directed verdict on liability in favor of fees for his part in what the trial court referred to Plaintiff/Sonja Dee Rose (Rose). City’s pickup as “intentionally go[ing] to some great lengths to truck while traveling on business rear-ended thwart the process.” AFFIRMED. Opinion from Rose’s car after it stopped at a stop sign. City Court of Civil Appeals, Division II, by Reif, P.J.; contends the trial court should have submitted Taylor, J., and Stubblefield, J. (sitting by the case to a jury under an unavoidable accident designation), concur. instruction. The uncontradicted evidence is that Tuesday, March 1, 2005 City’s driver knew it rained just prior to his driv- ing the route and knew that the route included a 100,226 — Barbara Jane Ehrman, Petitioner, v. stop sign at the bottom of a steep hill and yet, did Glenpool Healthcare Center, Pacific Employers not reduce his speed below the posted speed Insurance Company, and Workers’ Compensa- limit as legally bound to do. As the only reason- tion Court, Respondents. Proceeding to Review able conclusion is that the slick road condition an Order of the Workers’ Compensation Court, and a vehicle stopped at the stop sign were fore- Hon. Kenton W. Fulton, Trial Judge. This case seeable and that City’s driver was not driving in concerns a claim filed by Barbara Jane Ehrman a prudent manner that would allow his vehicle alleging she was permanently totally disabled to stop without colliding with another vehicle from the combined disability of two adjudicated legally on the roadway, the evidence supports injuries to her back and an unadjudicated injury granting a directed verdict on liability. The trial to her right leg. The trial court ruled that the court’s order granting a directed verdict on lia- combination of the injuries and disabilities bility is AFFIRMED. Opinion by Joplin, P.J.;

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 623 Hansen, J., concurs, and Buettner, C.J., dissents this distribution to be against the clear weight of with separate opinion. the evidence or an abuse of discretion. The trial court’s divorce decree is AFFIRMED. Opinion by 100,145 — Earl Tillery, Plaintiff/Appellant/ Hansen, J.; Joplin, P.J., concurs, and Buettner, C.J., Counter-Appellee, v. TransAmerica Assurance dissents. Company, a corporation; and Future Planning Associates, a corporation, Defendant/ 101,536 — Thomas Ernest Brown, Plaintiff/ Appellees/Counter-Appellants. Appeal from the Appellant, v. Rocky Farmers Co-op, Inc., Defen- District Court of Tulsa County, Oklahoma. Hon- dant/Appellee. Appeal from the District Court orable Ronald L. Shaffer, Judge. On March 19, of Washita County, Oklahoma. Honorable 1999, Earl Tillery, a Tulsa County resident, sued Charles L. Goodwin, Trial Judge. On January 29, Defendants TransAmerica Assurance Company 2002, Appellee applied a herbicide to Appellant’s and Future Planning Associates, Inc., along with alfalfa field. Sometime in April Appellant 469 other plaintiffs, a list of whose names he noticed herbicide damage to his field. On May 6, attached to his petition, and sought to certify his 2002, Appellant filed a complaint with the claim as a class action. Eventually, class certifica- Department of Agriculture. On May 5, 2004, tion was denied, so Tillery filed an application to Appellant filed a petition in district court alleg- join an additional 153 plaintiffs. Defendants ing negligence by Appellee, claiming Appellee moved to dismiss the non-resident plaintiffs’ did not properly clean its tanks before filing claims. The trial court overruled Plaintiffs’ them with herbicide to apply to his alfalfa field. Application to Join Additional Plaintiffs and He sought damages in excess of $10,000.00. sustained Defendants’ Motions to Dismiss Appellee filed a motion for summary judgment Non-residents Plaintiffs’ claims under the contending that under 12 O.S. 2001 §95(3), an doctrine of forum non conveniens. It also sustained action for injury to personal property is two Defendants’ Motion to Dismiss Misjoined Party years, therefore the statute of limitations had run Plaintiffs except Tillery. We affirm. AFFIRMED. on Appellant’s cause of action. The trial court Opinion by Buettner, C.J.; Hansen, J., concurs, granted summary judgment to Appellee. Appel- and Joplin, P.J., concurs in result. lant appeals. Even under the “discovery rule” 100,213 — Dorothy Anna McCollom, Plain- the statute of limitations in tort actions begins to tiff/Appellee, v. Kevin Eugene McCollom, run at the time a plaintiff knew or with reason- Defendant/Appellant. Appeal from the District able diligence should have known of the damage Court of Oklahoma County, Oklahoma. Honor- and the cause of the damage. Appellant admits able Geary L. Walke, Trial Judge. In this divorce he recognized possible damages in April 2002, action, Husband contends the support alimony more than two years before he filed his petition. award was contrary to the weight of the evi- Appellant contended his action did not accrue dence and an abuse of discretion. He argues he until his filing of a written statement with the does not have the ability to pay the support Department of Agriculture of the alleged dam- alimony ordered because the total of the ages under the Oklahoma Combined Pesticide amounts he was ordered to pay per month for Law, 2 O.S. 2001 §3-82(H) in that he could not child support, support alimony, and marital debt have maintained the action to a successful con- exceed his net monthly income. Evidence clusion until then. The statute of limitations showed the marital estate had a positive net began to run as soon as Appellant could legally worth and that Husband’s gross monthly give notice under §3-82(H), rather than on the income was $5,592.00, while Wife’s income was day he actually did so. The trial court correctly $2,325.00. Given the availability of Husband’s concluded Appellant’s suit is barred by the net assets as well as current income to meet his two-year statute of limitations. AFFIRMED. financial obligations, we are unable to find the Opinion by Hansen, J.; Joplin, P.J., and Buettner, court’s award of support alimony to Wife is C.J., concur. against the weight of the evidence or an abuse of (Division No. 4) discretion. Husband also contends the property Tuesday, February 22, 2005 division is inequitable. The record supports the trial court’s treatment of a loan from Husband’s 100,264 — Leesa Fran Williams, and James parents as not requiring payment. If this loan is Williams, husband and wife, Plaintiff/Appellee/ disregarded, the property division results in Counter-Appellant, v. Lacy Lynn Sears, an Wife receiving 52.46% of the marital estate and individual, Defendant/Appellant/Counter- Husband receiving 47.53%. We are unable to find Appellee. Appeal from the District Court of

624 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 Canadian County, Hon. Gary E. Miller, Trial Tuesday, March 1, 2005 Judge. This is an appeal and counter-appeal from 100,552 — Larry Washington, Plaintiff/Appel- the trial court’s judgment of December 22, 2003, lant, v. Kimberly S. Singletary, C.O., Martin entered on a jury verdict in an automobile McDaniel, Major, Lawton Correctional Facility, negligence action. Defendant Lacy Lynn Sears Wackenhut Corrections Corporation, Defen- appeals the trial court’s denial of an attorney’s dants/Appellees. Appeal from the District Court fee requested pursuant to 12 O.S.2001 & Supp. of Comanche County, Hon. C. Allen McCall, 2002, § 1101.1. Plaintiff Leesa Fran Williams Trial Judge. Larry Washington appeals the trial counter-appeals, asserting the trial court erred in court’s March 5, 2004, order denying his motion instructing the jury on comparative negligence to vacate an earlier order, filed July 26, 2000, and in refusing to grant her motion for judgment which granted summary judgment to various notwithstanding the verdict. Based upon our prison entities and employees on his claim for review of the record on appeal and applicable negligence. Based upon our review of the facts law, we affirm the trial court in both appeals. and applicable law, we affirm. AFFIRMED. AFFIRMED. Opinion from Court of Civil Opinion from Court of Civil Appeals, Division Appeals, Division IV, by Goodman, P.J.; Rapp, IV, by Goodman, P.J.; Rapp, V.C.J., concurs, and V.C.J., and Stubblefield, J., concur. Stubblefield, J., concurs in result. 100,805 — Moshe Tal, individually and as 100,589 — Shirley J. Kirkpatrick, as Trustee of assignee of the Bricktown Grain Elevator Com- the Shirley J. Kirkpatrick Revocable Trust, Plain- pany; and Bricktown Grain Elevator Company, tiff/Appellant, v. Arvest Bank, Defendant/ Plaintiffs/Appellants, v. Frederick K. Harth, Appellee, and Employers Mutual Casualty Com- Defendant/Appellee, and OKC Rocks, LLC, and pany, Defendant. Appeal from the District Court John Does 1-5, Defendants. Appeal from Orders of Oklahoma County, Hon. Daniel L. Owens, of the District Court of Oklahoma County, Trial Judge. Shirley J. Kirkpatrick, as Trustee of Hon. Vicki L. Robertson, Trial Judge, granting the Shirley J. Kirkpatrick Revocable Trust, summary judgment in favor of defendant Harth appeals the trial court’s March 26, 2004, order in an action seeking recovery of unpaid rents and which denied her motion for partial summary awarding prevailing party attorney fees. Issues judgment and granted summary judgment to of fact remain regarding individual liability of Arvest Bank. The matter was assigned to the Harth, the principal owner and manager of the accelerated docket pursuant to Oklahoma defendant limited liability company, and Supreme Court Rule 1.36(a)(1), 12 O.S.2001, ch. whether he is shielded by the “veil” of the 15, app. 1. Based upon the facts and applicable business entity. Plaintiff must be given the law, we reverse and remand for further proceed- opportunity to complete discovery on this issue. ings. REVERSED AND REMANDED FOR Prevailing party attorney fees are not authorized FURTHER PROCEEDINGS. Opinion from Court in cases of this nature. REVERSED AND of Civil Appeals, Division IV, by Goodman, REMANDED. Opinion from Court of Civil P.J.; Rapp, V.C.J., concurs, and Stubblefield, J., Appeals, Division IV, by Stubblefield, J.; Rapp, dissents. V.C.J., and Goodman, P.J., concur.

Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 625 6 Hour CLE APPROVED BY MCLE, OBA Traffic Accident Investigation by Physical Evidence • CASE STUDIES — Six case studies, Litigated Center Line Case, Driver Identity, Successful defense of Rear-ender. • CRASH TEST FILMS — Rear-Ender, “T-Bone,” Oblique Angle Collision, Belted & un-belted dummies with & without air bags, motorcyles & cars, Roll-Over w/Interior view of occupants movement, Ejection. • Speed Calculation & Accident Analysis by computer of “T-Bone” crash test. “Drag Factor” explained & demonstrated in speed calculations. • Ten computer simulations of two-vehicle collisions which demonstrate results with various combinations of vehicle speed, weight & impact configuration. • Suggestions for investigation of accident scene & vehicles supported with many photos from past cases, including Investigation Outline. • You receive 150 pg book Traffic Accident Investigation by Physical Evidence & CD of Power Point presentation given in class, which includes all Crash Tests and Computer Simulations. PRESENTER: Tom Curtis, Nationally Accreditied Reconstructionist. Taught Crush measurement & Speed Calculation at WORLD RECONSTRUCTION EXPO Sept 2000, Texas A & M TULSA: March 18th, HAMPTON INN, 918-663-1000 OKLA CITY: April 1st, METRO TECH, 1900 Springlake Drive, 405-424-8324 Coffee & Danish 8:30AM, Class 9:00AM, REGISTRATION: Call 800-266-6142, Cost $175 Mail check to Curtis Company, PO Box 549, McAlester, OK 74502, Specify Class Date & Location Materials for Sale: Book & CD from this class — $75, Includes Shipping Book: “Deposing Expert” by Tom Curtis — $55, Includes Shipping

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626 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 CLASSIFIED ADS

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Vol. 76 — No. 8 — 3/5/2005 The Oklahoma Bar Journal 627 OFFICE SPACE POSITIONS AVAILABLE

OFFICE BLDG. FOR SALE — 2100 S.F., N.W. Highway AV RATED PONCA CITY LAW FIRM specializing in & May Ave. in OKC. 5609 Mosteller Dr. Info sheet on plaintiffs’ personal injury cases is seeking a litigation front of building. Newly Remodeled. attorney with experience handling personal injury cases. Must have strong academic record, research and writing skills. Compensation package commensurate POSITIONS AVAILABLE with experience and performance. Send resume to Box “P,” Oklahoma Bar Association, P.O. Box 53036, Okla- SMALL AV RATED SOUTH TULSA LAW FIRM is homa City, OK 73152. seeking an associate attorney with 3 to 5 years civil litigation experience to compliment local and national LAW FIRM IN NEED OF PARALEGAL/LEGAL practice. Environmental background preferred. Strong ASSISTANT. Must have at least two years experience in academic, research, and writing background required. Employment Law, Bankruptcy/EZfiling, Personal Send resume and writing sample to Box “I,” Oklahoma Injury. Office includes: ECF, Windows XP, Notary, Bar Association, P.O. Box 53036, Oklahoma City, OK dictation, client contact. Salary commensurate with 73152. experience. Send resume to Box “J,” Oklahoma Bar Association, P.O Box 53036, Oklahoma City, OK 73152. FULL TIME POSITION AS ASSOCIATE ATTORNEY FOR LAW FIRM providing services for major legal OKC A. V. FIRM OF MEE MEE & HOGE seeks associ- plan. Requires excellent telephone manner and people ate with 2 to 10 years experience; excellent salary and skills, as well as broad knowledge of the law. Great benefits; practice includes creditor representation opportunity for attorneys who want to keep active (including bankruptcy) and civil litigation (mortgage while parenting or approaching retirement. Those foreclosure experience a plus, but not required). with independent practices need not apply. Send Email resume, references and writing sample to resumes to Human Resources Dept., P.O. Box 1046, [email protected]. Tulsa, OK 74101. STAFF ATTORNEY needed for a large Tulsa-based SMALL SOUTH TULSA LAW FIRM is seeking a recep- independent oil and gas exploration and production tionist. Qualifications required include answering company. The successful candidate will, in addition to multi-line phones, typing and transcription, computer other duties, draft, review and revise Oil & Gas Leases skills in MS Word and Outlook, filing, copying and and other contractual agreements, assist in researching clerical duties. Must have reliable work history and various legal issues, and assist in evaluation of the the ability to retain a positive attitude in a fast paced company’s legal positions on a broad range of opera- team-oriented environment. Send replies with resume tional issues. Qualifications must include: J.D./L.L.B. to Box ”F,” Oklahoma Bar Association, P.O. Box 53036, Degree from an accredited law school; 3 - 5 years legal Oklahoma City, OK 73152. experience, either in-house or with a recognized law firm; current member of the Oklahoma, Texas, EDMOND LAW FIRM seeking Receptionist/Legal Arkansas, Louisiana or Colorado Bar Association; Secretary — Job requires excellent telephone etiquette, excellent oral and written communication skills; Oil grammar, customer service, and organizational skills; and Gas experience preferred. Send resume to proficient in Word Perfect and Word. Fax resume to SAMSON, Dept. HR - SS 2/05. Two West Second (405) 340-1001. Street, Tulsa, OK 74103-3103. Fax (918) 591-1704. ASSISTANT ATTORNEY GENERAL, WORKERS’ Email: [email protected]. COMPENSATION FRAUD UNIT- A minimum of three years in the practice of law and two years trial and EDMOND — AV LAW FIRM seeks entry level attor- prosecution experience. Applicants must be licensed in ney. Attorney will participate in and handle Trial Prep, the State of Oklahoma. Strong emphasis will be placed case management, and trials. Practice is general civil on oral advocacy skills. Some travel will be required. litigation, trusts, contracts and family law. Fax resume Position requires some knowledge and use of Word- and salary requirement to John Gile (405) 340-5910. Perfect. See web site at www.oag.state.ok.us for more details. Send resumes to Drew Edmondson, Attorney MID-SIZED AV-RATED FIRM IN TULSA is seeking General, Rm. 112, State Capitol Bldg., 2300 N. Lincoln associates with 2-5 years experience to work in the area Blvd., OKC, OK 73105. Salary range $41,500 to $55,000, of business litigation. Firm has strong client base and commensurate with experience. offers excellent opportunities for advancement to lawyers committed to the highest levels of work ANCHORAGE, AK — Law firm seeks experienced product and client service. Superior academic utilities/energy attorney. Relocation necessary. Please performance (top 10% of class), proven writing skills visit our website at www.hartig.com for more informa- and litigation experience are required. Please send tion and firm history. Send cover letter, resume, and resume, transcript, list of references and writing references to Hartig Rhodes Hoge & Lekisch, P.C., 717 sample to Box “Z,” Oklahoma Bar Association, K Street, Anchorage, AK 99501 or fax (907) 277-4352. P.O. Box 53036, Oklahoma City, OK 73152.

628 The Oklahoma Bar Journal Vol. 76 — No. 8 — 3/5/2005 POSITIONS AVAILABLE POSITIONS AVAILABLE

AV-RATED MID-SIZED TULSA FIRM with strong REGIONAL AV RATED FIRM seeks associate with 2-5 client base seeks an associate to work in the areas of years experience to work in Enid office. Send resume real estate, creditor representation and business litiga- and references to Box “K,” Oklahoma Bar Association, tion. Excellent benefits include health, dental and life P.O. Box 53036, Oklahoma City, OK 73152. insurance, cafeteria benefits plan and 401K program. Submit resume and salary requirements in confidence. Send replies to Box “L,” Oklahoma Bar Association, FOR SALE P.O. Box 53036, Oklahoma City, OK 73152. SOLID WALNUT (inside and out) Ornate, full size desk with matching phone stand, trash can holder LEGAL ASSISTANT The U. S. Attorney’s Office is and 3 chairs. Ex. Cond. Antique Circa 1920s. Phone seeking experienced individuals to fill a Legal (580) 421-2322. Assistant position. The starting salary is $34,149 per year. Three years of substantive specialized legal assistant experience is required, criminal experience CLASSIFIED INFORMATION preferred. Applicant MUST provide specific application information which may be obtained by CLASSIFIED RATES: One dollar per word per contacting Mrs. Engelke, 210 Park Avenue, Suite 400, insertion. Minimum charge $35. Add $15 Oklahoma City, OK 73102 or phone (405) 553-8777. The surcharge per issue for blind box advertisements complete vacancy announcement can be viewed at to cover forwarding of replies. Blind box word www.usajobs.opm.gov (Exec Office for US Attorneys). count must include “Box ____ , Oklahoma Bar Failure to provide required information may result in Association, P.O. Box 53036, Oklahoma City, OK a lower rating. Application must be postmarked no 73152.” Display classified ads with bold headline later than March 9, 2005. and border are $50 per inch. See www.okbar.org for issue dates and Display Ad sizes and rates. COMPLIANCE POSITION — Progressive Healthcare DEADLINE: Tuesday noon before publication. Company seeks leader for compliance position. In this Ads must be prepaid. Send ad in writing stating function, you will take a conscientious approach to the number of times to be published to: delivery of compliance assessment and management, Melissa Brown focusing on State and Federal regulation as well as Oklahoma Bar Association internal policy and procedures. Represent Company P.O. Box 53036 with external parties as necessary to facilitate stated Oklahoma City, OK 73152 goals and objectives. Position may call for various Publication and contents of any advertisement is not in-house counsel duties. Governmental affairs interest to be deemed an endorsement of the views expressed and experience helpful. Previous experience in therein, nor shall the publication of any advertise- healthplan operations valuable. JD preferred. If ment be considered an endorsement of the procedure interested in this position, please e-mail your or service involved. All placement notices must be resume/vitae to [email protected] clearly non-discriminatory. or fax your application information to (405) 280-5200.

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