Vol 87 No 13 (May 14) - Oklahoma Bar Association

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Volume 87 u No. 13 u May 14, 2016
6/0
A GUIDE TO
42 U.S.C.
§ 1983
PRINCIPLES AND LITIGATION
Program Planner/Moderator:
David W. Lee,
Collins, Zorn & Wagner, P.C.
AVA IL
A B LE
May 19, 2016 9 a.m. - 3 p.m.
OKLAHOMA BAR CENTER, OKC
$150 for early-bird registrations received with payment at least four, full business
days prior to the first seminar date; $175 for registrations received with payment
within four, full business days of the first seminar date. Walk-ins $200. To receive
a $10 discount for the live onsite program, register online at http://www.okbar.org/members/CLE. Continental breakfast and networking lunch included in
registration. You may also register for the live webcast (pricing varies).
Program approved for 6 hours MCLE credits including 0 ethics.
semina the most
During this seminar,
recent cases and principles involving 42 U.S.C. Section 1983 and the
litigation of these issues in federal
and state court will be discussed.
This seminar will be useful for those
who are presently Section 1983 litigators as well as those who are interested in getting involved with
1983 cases on both the plaintiff and
defense side. The presenters are
experts on federal constitutional
For more information go to: www.okbar.org/members/CLE
906
The Oklahoma Bar Journal
Vol. 87 — No. 13 — 5/14/2016
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Vol. 87 — No. 13 — 5/14/2016
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Vol. 87 — No. 13 — 5/14/2016
Oklahoma Bar Association
table of
contents
May 14, 2016 • Vol. 87 • No. 13
page
910
Index to Court Opinions
912
Opinions of Supreme Court
938
Opinions of Court of Criminal Appeals
944
Sovereignty Symposium Agenda
948
Calendar of Events
949
Opinions of Court of Civil Appeals
988
Disposition of Cases Other Than by Publication
Vol. 87 — No. 13 — 5/14/2016
909
Index to Opinions of Supreme Court
2016 OK 42 CYNTHIA ROBINSON, Petitioner, v. FAIRVIEW FELLOWSHIP HOME FOR
SENIOR CITIZENS, INC. and STONETRUST COMMERCIAL INSURANCE CO. and
THE WORKERS’ COMPENSATION COMMISSION, Respondents. Case No. 113,735........... 9 1 2
2016 OK 43 DEPARTMENT OF HUMAN SERVICES and COMPSOURCE OKLAHOMA,
Petitioners, v. NANCY V. BRUCE and THE WORKERS’ COMPENSATION COURT,
Respondents. Case No. 112,070.......................................................................................................... 9 1 6
2016 OK 44 Teresa Lynn Allen, Appellant, v. John J. Harrison, D.O. Appellee. No. 111,877.......... 9 1 9
2016 OK 45 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. KYLE EDWARD GOERKE, Respondent. SCBD 6382................................................ 9 2 3
2016 OK 46 JAMES LOYD, Petitioner, v. MICHELIN NORTH AMERICA, INC., and THE
WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS, Respondents. Case
No. 112,754............................................................................................................................................ 9 2 5
2016 OK 47 JACQUELYN TESS MURLIN, Plaintiff/Appellee, v. JIMMY LEE DIAL
PEARMAN, JR., Defendant/Appellant. No. 113,193..................................................................... 9 2 9
2016 OK 48 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. GEORGE MICHAEL LEWIS, Respondent. SCBD No. 6384..................................... 9 3 3
2016 OK 49 REVOCATION OF CERTIFICATES OF CERTIFIED SHORTHAND REPORTERS SCAD-2016-36............................................................................................................................... 9 3 4
2016 OK 50 REINSTATEMENT OF CERTIFICATES OF CERTIFIED SHORTHAND
REPORTERS SCAD-2016-37............................................................................................................... 9 3 5
2016 OK 51 IN RE INITIATIVE PETITION NO. 409, STATE QUESTION NO. 785, OKLAHOMA GROCERS ASSOCIATION and RON EDGMON, Petitioners, v. RETAIL
LIQUOR ASSOCIATION OF OKLAHOMA and BRYAN KERR, Respondents. Case
No. 114,792............................................................................................................................................ 9 3 5
Index to Opinions of Court of Criminal Appeals
2016 OK CR 9 BRUCE CONWAY STEWART, JR., Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. F-2015-282........................................................................................... 9 3 8
Index to Opinions of Court of Civil Appeals
2016 OK CIV APP 20 JULIE GWEN SANFORD and S.D., Petitioners/Appellees, vs.
BLAISE ALLYN SANFORD, Respondent/Appellant. Case No. 113,669.................................... 9 4 9
2016 OK CIV APP 21 IN THE MATTER OF THE ADOPTION OF B.T.S., a Minor Child:
TAMERA N. SMITH, Appellant, vs. TERESA NIXON and QUAHANA NIXON,
Appellees. Case No. 113,714............................................................................................................... 9 5 1
2016 OK CIV APP 22 FIRST NATIONAL BANK IN MARLOW, OKLAHOMA, Plaintiff/
Appellee vs. DAVID W. BICKING and TAMMY M. BICKING, Defendants/Appellants. Case No. 113,741........................................................................................................................ 9 6 1
910
Vol. 87 — No. 13 — 5/14/2016
2016 OK CIV APP 23 ROGER DAVIS, Plaintiff/Appellant, vs. THE OKLAHOMA
DEPARTMENT OF CORRECTIONS and ROBERT PATTON, as director, Defendants/
Appellees. Case No. 113,773............................................................................................................... 9 6 5
2016 OK CIV APP 24 ROBERT JUDSON RADFORD, Petitioner/Appellant, vs. MELISSA
JENNINGS RADFORD, Respondent/Appellee. Case No. 113,908.............................................. 9 7 1
2016 OK CIV APP 25 KENNETH E. SOULE, Petitioner, vs. CRANE LOGISTICS &/or
JAMES CRANE &/or CRANE CARTAGE FREIGHT SYSTEMS &/or WILLIAM &
BARBARA O’CONNELL &/or ASHTON LEASING and THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS, Respondents, and WILDCAT
FREIGHT INC., Respondent, and UNKNOWN OR NOT SPECIFIED &/or TRAVELERS INDEMNITY CO. OF CONNECTICUT &/or NO INSURANCE, Insurance Carrier. Case No. 113,996........................................................................................................................... 9 7 4
2016 OK CIV APP 26 IN THE MATTER OF THE ADOPTION OF K.L.C., A MINOR
CHILD: TIMOTHY JAMES METROVICH, Petitioner/Appellant, vs. VINCENT LEE
COUGHRAN, Respondent/Appellee. Case No. 114,212.............................................................. 9 7 9
2016 OK CIV APP 27 THE KEY FINANCE, INC., Plaintiff/Counter-Defendant/Appellee,
vs. DJ KOON, Defendant/Counter-Plaintiff/Appellant. Case No. 112,853............................... 9 8 0
2016 OK CIV APP 28 SHERRINE LYNN O’BRIEN, Petitioner/Appellee, vs. CHRIS
ALLEN BERRY, Defendant/Appellant. Case No. 113,216............................................................ 9 8 3
Vol. 87 — No. 13 — 5/14/2016
911
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)
2016 OK 42
CYNTHIA ROBINSON, Petitioner, v.
FAIRVIEW FELLOWSHIP HOME FOR
SENIOR CITIZENS, INC. and
STONETRUST COMMERCIAL
INSURANCE CO. and THE WORKERS’
COMPENSATION COMMISSION,
Respondents.
Case No. 113,735. April 19, 2016
ON APPEAL FROM THE WORKERS’
COMPENSATION COMMISSION
¶0 Petitioner Cynthia Robinson was denied
workers’ compensation benefits after an
administrative law judge of the Workers’ Compensation Commission found that her injury
was not in the course and scope of employment under 85A O.S. Supp. 2013 § 2(13). Petitioner argued that § 2(13) was an unconstitutional special law and unconstitutionally
denied her a remedy for her injury. The ALJ
declined to address Petitioner’s constitutional
arguments, and the Workers’ Compensation
Commission affirmed. Petitioner appealed,
and in an unpublished decision, the Court of
Civil Appeals affirmed, declining to address
Petitioner’s constitutional arguments and suggesting she seek a declaration in the district
court regarding the statute’s constitutionality.
We granted certiorari review in the case. Upon
consideration, we hold that the Workers’ Compensation Commission has the power to determine whether a provision of Title 85A is being
unconstitutionally applied to a particular party
in a proceeding before the Commission, and
the Commission’s decision is subject to review
by this Court.
COURT OF CIVIL APPEALS’ OPINION
VACATED; WORKERS’ COMPENSATION
COMMISSION ORDER VACATED; CAUSE
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS
Bob Burke, Oklahoma City, Oklahoma, for
Petitioner.
James G. Devinney, Ponca City, Oklahoma, for
Petitioner.
912
W. Jeffrey Dasovich, Oklahoma City, Oklahoma, for Respondents.
Patrick R. Wyrick, Mithun S. Mansinghani,
Office of the Attorney General, Oklahoma City,
Oklahoma.
V. Glenn Coffee, Denise K. Davick, Glenn Coffee & Associates, Oklahoma City, Oklahoma, for
Amicus Curiae State Chamber of Oklahoma.
PER CURIAM
Facts & Procedural History
¶1 Petitioner Cynthia Robinson worked as a
Nurse’s Aide for Employer Fairview Fellowship Home for Senior Citizens, and was injured
on February 6, 2014.1 Petitioner requested a
finding of injury to her neck, left shoulder, and
left knee, as well as temporary total disability.
Employer admitted that she was an employee
on the date of the accident but denied that her
injury arose out of and in the course of her
employment under 85A O.S. Supp. 2013 §
2(13). Petitioner argued that if her injury was
not compensable, then § 2(13) was an unconstitutional special law and unconstitutionally
denied her a remedy for her injury.
¶2 The ALJ found Petitioner’s injury was not
in the course and scope of employment, and
thus, not compensable. The ALJ declined to
address Petitioner’s constitutional arguments
stating: “The Workers’ Compensation Commission is an administrative agency rather
than a court and is without power to decide the
Claimant’s Constitutional arguments that this
statute does not provide an adequate remedy
under the Administrative Workers’ Compensation Act.”2 The ALJ cited as authority Dow
Jones & Co., Inc. v. State ex rel. Oklahoma Tax
Commission, 1990 OK 6, 787 P.2d 843.
¶3 Petitioner appealed to the Workers’ Compensation Commission, and the Commission
affirmed the decision of the ALJ, stating that
“claims that legislation is unconstitutional cannot be determined by law or this Commission
en Banc. Those claims can only be decided by
a court of competent jurisdiction.”3 Petitioner
again appealed, and in an unpublished decision, the Court of Civil Appeals affirmed.
Vol. 87 — No. 13 — 5/14/2016
Although the court found that Petitioner had
“preserved [her] constitutionality argument
before the [Workers’ Compensation Commission],” the court declined to address such constitutional arguments and suggested Petitioner
“seek a declaration in district court regarding
the statute’s constitutionality.” Petitioner Robinson petitioned this Court for certiorari review
of the COCA opinion, specifically on the issue
of whether this Court and COCA have the
jurisdiction to decide the constitutionality of
the provisions of Title 85A “even though the
Workers’ Compensation Commission, as an
executive administrative agency, does not have
such authority.”4
¶4 After Petitioner filed her Petition for Certiorari in this Court, the Attorney General filed
notice of his intent to provide his views concerning the authority of the Workers’ Compensation Commission to address constitutional
issues and the ability of the courts to review
those decisions. On January 13, 2016, this
Court invited the Attorney General to file his
brief on such issues, and the parties were given
ten days to respond to the Attorney General’s
filing. The Attorney General filed his brief on
the issues on February 10, 2016, arguing that
the Workers’ Compensation Commission has
the authority to address the constitutionality of
a statute as it is being applied in an individual
proceeding, subject to judicial review by this
Court. Neither party tendered a response to the
Attorney General’s brief. On February 29, 2016,
this Court granted Petitioner Robinson’s Petition for Certiorari.
The Workers’ Compensation Commission Has
the Power to Determine Whether a Provision
of Title 85A is Being Unconstitutionally
Applied to a Particular Party in a
Commission Proceeding
¶ 5 The Oklahoma Administrative Workers’
Compensation Act creates the Workers’ Compensation Commission, which is “an executive
agency of the State of Oklahoma . . . .” 85A O.S.
Supp. 2013 § 19(A). Limits on the authority of
an executive administrative agency to resolve
constitutional questions — the question before
us in this case — are based upon the constitutional principle of separation of powers. Article
4, § 1 of the Oklahoma Constitution provides:
The powers of the government of the State
of Oklahoma shall be divided into three
separate departments: The Legislative,
Executive, and Judicial; and except as proVol. 87 — No. 13 — 5/14/2016
vided in this Constitution, the Legislative,
Executive, and Judicial departments of
government shall be separate and distinct,
and neither shall exercise the powers properly belonging to either of the others.5
Article 7, §1 goes on to provide:
§ 1. Courts in which judicial power vested.
The judicial power of this State shall be vested
in the Senate, sitting as a Court of Impeachment, a Supreme Court, the Court of Criminal Appeals, the Court on the Judiciary,
the State Industrial Court, the Court of
Bank Review, the Court of Tax Review, and
such intermediate appellate courts as may
be provided by statute, District Courts, and
such Boards, Agencies and Commissions created by the Constitution or established by statute as exercise adjudicative authority or render
decisions in individual proceedings. . . .6
¶6 Adjudicative authority — the “authority
to hear and determine forensic disputes” — ”is
the exclusive domain of the judiciary.”7 Consistent with Art. 7, § 1, this Court has on numerous occasions held that “[w]hen an administrative board acts in an adjudicative capacity, it
functions much like a court.”8 Such proceedings are quasi-judicial in nature — a “term
applied to the action of public administrative
officers or boards which investigate facts or
ascertain the existence of facts; draw conclusions from them as a basis for official action;
and exercise discretion of a judicial nature in connection with and incidental to the administration of
matters entrusted to or assigned to the officers or
board.”9
¶7 Under Art. 7, § 1, the Commission, as a
Commission “established by statute,” may
“exercise adjudicative authority or render decisions in individual proceedings.”10 Pursuant to
such, under the AWCA, the Commission and
its ALJs have the power “to hear and determine claims for compensation and to conduct
hearings and investigations and to make such
judgments, decisions, and determinations as
may be required by any rule or judgment of the
Commission” or as “authorized by law.” 85A
O.S. Supp. 2013 § 22(C-D). Section 72(A)(4)
provides that “[a]dministrative law judges are
required to make specific, on-the-record findings of ultimate facts responsive to the issues
shaped by the evidence as well as conclusions
of law on which its judgment is to be rested.”
85A O.S. Supp. 2013 § 72(A)(4) (emphasis
added). Section 27(A) of Title 85A provides:
913
A. The Workers’ Compensation Commission shall be vested with jurisdiction over
all claims filed pursuant to the Administrative Workers’ Compensation Act. All claims
so filed shall be heard by the administrative law judge sitting without a jury. The
Commission shall have full power and
authority to determine all questions in
relation to claims for compensation under
the provisions of the Administrative Workers’ Compensation Act. The Commission,
upon application of either party, shall order
a hearing. Upon a hearing, either party
may present evidence and be represented
by counsel. Except as provided in this act,
the decision of the administrative law
judge shall be final as to all questions of
fact and law. The decision of the administrative law judge shall be issued within
thirty (30) days following the submission
of the case by the parties. The power and
jurisdiction of the Commission over each
case shall be continuing and it may, from
time to time, make such modifications or
changes with respect to former findings or
orders relating thereto if, in its opinion, it
may be justified.11
¶8 The above-highlighted language mirrors
statutory language contained in Oklahoma’s
first “Workmens Compensation Law” enacted
in 1915 and administered by the State Industrial Commission. The State Industrial Commission was also given “full power and authority to determine all questions in relation to the
payment of claims for compensation under the
provisions of this Act,”12 and an award or order
of the Commission was final as to questions of
fact and all questions of law not appealed to
the Oklahoma Supreme Court.13 Although not
a court of record,14 the State Industrial Commission was an “administrative fact finding
board with certain judicial powers [and] a
quasi judicial body”15 “clothed with certain
judicial authority.”16
¶9 The “full power and authority to determine all questions in relation to claims for
compensation” necessarily includes questions
of law.17 A question of law includes a constitutional question raised by the interpretation and
application of a particular workers’ compensation statute to a particular party.18 Thus, the
Commission or its ALJs when exercising adjudicative authority may properly refuse to apply
a statute to a particular party before it, if the
Commission or its ALJs find that such applica914
tion would be repugnant to the Constitution.
To hold otherwise would force parties before
the Commission to immediately appeal a decision of the Commission before a final adjudication of the claim on the merits.19 In addition,
Petitioners are forced to carry the additional
financial burden of filing fees, costs of transcripts, preparation of the record, attorney fees,
and the costs of legal representation, only to
have this Court remand the case to the Commission to decide a question it could have
decided in the first instance. This is not the
“’prompt, certain, and inexpensive’” remedy
envisioned by the adoption of the workers’
compensation system as a result of the industrial bargain. Adams v. Iten Biscuit Co., 1917
OK 47, ¶ 16, 162 P. 938, 944 (quoting Jensen v.
S. Pac. Co., 109 N.E. 600, 603 (N.Y. 1915)).
¶10 “The benefit from having the administrative process initially address a constitutional
issue among other issues within the agency’s
purview is that the process may result in factfinding or interpretation and application of
statutory processes that may obviate the need
to adjudicate a constitutional question.” N.J.
Dep’t of Envtl. Prot. v. Huber, 63 A.3d 197, 218
(N.J. 2013). This Court does not generally, in
the exercise of our appellate jurisdiction, “make
first instance determinations on disputed questions of fact or law.”20 “’A constitutional claim
that hinges upon factual issues reviewable at
the administrative level must first be addressed
to the agency so that a necessary factual record can
be established.’” In re Fichera v. City of New
York, 145 A.D.2d 482, 484 (N.Y. App. Div. 2d
1988) (emphasis added) (citing Matter of Dozier v. New York City, 130 A.D.2d 128, 135 (N.Y.
App. Div. 2d 1987)).
¶11 The Court of Civil Appeals’ suggestion
that Petitioner file a declaratory judgment
action in the district court is contrary to the
AWCA, which specifically provides that “[a]ll
appeals or disputes arising from actions of the
Commission shall be governed by provisions
of this act and the Commission shall not be
subject to the provisions of the Oklahoma
Administrative Procedures Act, except as provided in this act.” 85A O.S. Supp. 2013 § 19(F).
Thus, 75 O.S. 2011 § 307, which allows for the
filing a Petition for Declaratory Review in the
district court under the Administrative Procedures Act, does not apply to cases pending
before the Workers’ Compensation Commission. In fact, the exclusive remedy provision
of 85A O.S. Supp. 2013 § 5 specifically bars
Vol. 87 — No. 13 — 5/14/2016
injured workers from pursuing relief in the
district court. Thus, we conclude that the
Workers’ Compensation Commission has the
power to determine whether a provision of
Title 85A is being unconstitutionally applied
to a particular party in a proceeding before the
Commission.21
A Decision of the Workers’ Compensation
Commission is Subject to Review by
this Court
¶12 Of course, the power of the Commission
and its ALJs to determine the constitutionality
of a provision of Title 85A is limited. Although
the Commission, when acting in an adjudicative capacity functions much like a court, the
Commission is an executive branch agency
lacking the full power of the judiciary.22 Article
7, § 1 grants the Commission only that judicial
power necessary to “render decisions in individual proceedings,” meaning the Commission
only has the power to resolve, on a case-bycase basis, questions regarding the constitutional or unconstitutional application of a statute to a particular party in a proceeding before
it, and the Commission’s decision is binding
only on the parties in that case.23 The Legislature may not confer upon the Commission the
power to determine the facial constitutionality
of a statute, and the Commission may not
assume that power — such power resides in
the judiciary alone.24
¶13 The Commission may not issue decisions that conflict with the rulings of this
Court, and the Commission’s decisions are
subject to review by this Court. This Court is
the ultimate authority on the interpretation of
the laws of this State,25 and in addition to our
constitutional authority to review a decision of
the Commission, we are also statutorily tasked
with reviewing a “judgment, decision or award
of the Commission.” 85A O.S. Supp. 2013 §
78(C). Finally, the Workers’ Compensation
Commission may only address issues that arise
in claims within their jurisdiction and that
involve the application of the Workers’ Compensation Act. Under Title 85A, the Commission has the “exclusive responsibility and duty
to carry out the provisions of this act.” 85A O.S.
Supp. 2013 § 19(A) (emphasis added).
¶14 The Court of Civil Appeals clearly has
the power to review a decision of the Commission when such a case has been properly and
timely appealed to this Court and assigned to
the Court of Civil Appeals by this Court.26 In
Vol. 87 — No. 13 — 5/14/2016
addition, just as this Court has a duty to review
the constitutionality of a challenged legislative
enactment when presented with a justiciable
case or controversy, so too does the Court of
Civil Appeals.27
Conclusion
¶15 We conclude that the Workers’ Compensation Commission has the power to determine
whether a provision of Title 85A is being
unconstitutionally applied to a particular party
in a proceeding before the Commission.28 The
Court of Civil Appeals’ opinion in this case is
vacated. The Commission’s decision in this case
is vacated and the cause is reversed and remanded for a new hearing before the assigned ALJ.
VACATED; WORKERS’ COMPENSATION
COMMISSION ORDER VACATED; CAUSE
FURTHER PROCEEDINGS
¶16 Reif, C.J., Combs, V.C.J., Kauger, Watt,
Edmondson, Colbert and Gurich, JJ., concur.
¶17 Winchester and Taylor, JJ., concur in
result.
PER CURIAM
1. Petitioner Robinson was on her lunch break when she slipped
and fell on an icy sidewalk located approximately five feet from the
exit of her Employer’s business. She injured her neck, left shoulder,
and left knee in the accident. Transcript of Hearing at 6-7. We do not
address in this opinion whether the ALJ correctly interpreted 85A O.S.
Supp. 2013 § 2(13) in determining that Petitioner was not in the course
and scope of her employment when she fell.
2. Record on Appeal at 11.
3. Transcript of Appeal Before the Commissioners at 3.
4. Petition for Certiorari at 3.
5. Okla. Const. art. 4, § 1 (emphasis added).
6. Okla. Const. art. 7, § 1 (emphasis added).
7. Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 13 & n.30,
130 P.3d 213, 220 & n.30.
8. Bowen v. State ex rel. Okla. Real Estate Appraiser Bd., 2011 OK
86, ¶ 15, 270 P.3d 133, 137; see also Harry R. Carlile Trust v. Cotton
Petroleum Corp., 1986 OK 16, ¶¶ 7-8, 732 P.2d 438, 441-42. Although
the Oklahoma Constitution forbids encroachment by one department
upon the powers or functions of another, this Court has also recognized that there “can be blending of the three powers of government
and that it is not always possible to contain the three branches of
government into ‘water tight compartments’. This blending of powers is
especially prevalent in the area of administrative law where administrative
agencies and officials, in exercising the powers delegated to them, typically
exercise all three types of powers and are responsive to some degree of control
by each of the constitutional departments.” In re Okla. Dep’t of Trans. for
Apprvoal of Not to Exceed $100 Million Okla. Dep’t of Trans. Grant
Anticipation Notes, Series 2002, 2002 OK 74, ¶ 10, 64 P.3d 546, 550
(emphasis added) (internal citations omitted).
9. Jackson v. Indep. Sch. Dist. No. 16 of Payne Cnty., 1982 OK 74,
n.20, 648 P.2d 26, 31 n.20 (emphasis added).
10. Okla. Const. art. 7, § 1.
11. 85A O.S. Supp. 2013 § 27(A) (emphasis added).
12. 1915 Okla. Sess. Laws 480.
13. 1915 Okla. Sess. Laws at 481. Such statutory language has
remained in the workers’ compensation statutes since 1915. See 85 O.S.
2011 § 303(J) (“The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation
under the provisions of the Workers’ Compensation Code. . . . Except
915
as provided in Section 340 of this title, the decision of the Court shall
be final as to all questions of fact and law.”); 85 O.S. Supp. 2010 § 26(B)
(“The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the
provisions of the Workers’ Compensation Act. . . . The decision of the
Court shall be final as to all questions of fact, and except as provided
in Section 3.6 of this title, as to all questions of law.”); 85 O.S. 2001 §
26(B) (“The Court shall have full power and authority to determine all
questions in relation to payment of claims for compensation under the
provisions of the Workers’ Compensation Act. . . . The decision of the
Court shall be final as to all questions of fact, and except as provided
in Section 3.6 of this title, as to all questions of law.”); 85 O.S. Supp.
1994 § 26(B) (“The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation
under the provisions of the Workers’ Compensation Act. . . . The decisions of the Court shall be final as to all questions of fact, and except as
provided in Section 3.6 of this title, as to all questions of law.”); 85 O.S.
Supp. 1986 § 26(B) (“The Court shall have full power and authority to
determine all questions in relation to payment of claims for compensation under the provisions of the Workers’ Compensation Act. . . . The
decision of the Court shall be final as to all question of fact, and except
as provided in Section 3.6 of this title, as to all questions of law.”); 85
O.S. Supp. 1977 § 26 (“The Court shall have full power and authority
to determine all questions in relation to payment of claims for compensation under the provisions of the Workers’ Compensation Act. . . . The
decision of the Court shall be final as to all questions of fact, and except
as provided in Section 10 of the Workers’ Compensation Act, as to all
questions of law.”); 1923 Okla. Sess. Laws 125 (“The Commission shall
have full power and authority to determine all question in relation to
payment of claims for compensation under the provisions of this Act.
. . . The decision of the Commission shall be final as to all question of
fact, and except as provided in Section 7297, of this Article, as to all
questions of law.”); 1919 Okla. Sess. Laws 21 (“The commission shall
have full power and authority to determine all question in relation to
the payment of claims for compensation under the provisions of this
Act. . . . The decision of the Commission shall be final as to all questions of fact, and except as provided in Section 13 of this Article as to
all questions of law.”).
14. In 1959, the State Industrial Commission was “officially named
and designated the State Industrial Court” and “designated and confirmed as a court of record, with respect to any matter within the limits
of its jurisdiction” and judges of the States Industrial Court were given
“the powers and prerogatives of the judges of the other courts of
record of this state.” 1959 Okla. Sess. Laws 397-98. The State Industrial
Court was renamed the Workers’ Compensation Court in 1977. 85 O.S.
Supp. 1977 § 2. It remained so named until it was again renamed the
Court of Existing Claims with the passage of the AWCA in 2013. 85A
O.S. Supp. 2013 § 400.
15. Special Indem. Fund v. Quinalty, 1949 OK 17, ¶ 5, 203 P.2d 713,
714.
16. Special Indem. Fund v. Prewitt, 1948 OK 104, ¶ 10, 205 P.2d 306,
311.
17. See 85A O.S. Supp. 2013 § 27(A) (emphasis added).
18. The State Industrial Commission frequently determined questions of law including, for example, whether it had jurisdiction to enter
a decision in a particular proceeding. See, e.g., M.V. Stilwell Trucking
Contractor v. Patterson, 1939 OK 217, ¶ 13, 89 P.2d 766, 768 (determining whether employment was hazardous was a jurisdictional question
to be “inquired into by the Industrial Commission”); J.E. Mabee, Inc. v.
Singleton, 1932 OK 802, 17 P.2d 438 (determining whether a settlement
award could be set aside for fraud was properly within the Commission’s jurisdiction to reopen a case).
19. “Settled case law defines a reviewable decision in a compensation case as one which ‘makes or denies an award’ or otherwise constitutes ‘a final determination of the rights of the parties.’” Hermetics
Switch, Inc. v. Sales, 1982 OK 12, ¶ 3, 640 P.2d 963, 965. Although the
award in this case was technically appealable because the ALJ denied
compensation after he determined Petitioner’s injury did not fall
within the statutorily defined “course and scope of employment,” such
a determination did not end the inquiry. The ALJ’s analysis should
have included a determination of whether the application of such
statute unconstitutionally denied Petitioner benefits — a determination specifically requested by Petitioner. Only after such a determination was the decision a “final determination of the rights of the parties”
and subject to appellate review.
20. Okla. Pub. Emps. Ass’n v. Okla. Dep’t of Cent. Servs., 2002 OK
71, ¶ 21, 55 P.3d 1072, 1081.
21. As the Attorney General points out, the “Oklahoma Constitution requires all state officials ‘to solemnly swear (or affirm) that I will
support, obey, and defend the Constitution of the United States, and
the Constitution of the State of Oklahoma.’” Brief of the Attorney Gen-
916
eral at 11. Requiring the Commission or its ALJs to administer a statute
even when, as a matter of law, the statute is being unconstitutionally
applied requires the Commissioners and the ALJs to knowingly violate
their oath of office as well as the rights of at least one of the parties. Id.
at 12.
22. See Okla. Const. art. 4, § 1. The executive branch is “invested
primarily with the function of executing the law,” enforcing the law,
or appointing agents charged with the duty of enforcing the law.
Fent v. Contingency Review Bd., 2007 OK 27, ¶ 12 & n.34, 163 P.3d
512, 521 & n.34.
23. Okla. Const. art. 7, § 1. In addition, “finding a statute or regulation unconstitutional as applied to a specific party does not affect the
facial validity of that provision.” Travelscape, L.L.C. v. S.C. Dep’t of
Revenue, 705 S.E. 2d 28, 39 (S.C. 2011). See also Tulsa Cnty. Deputy
Sheriff’s Fraternal Order of Police, Lodge No. 188 v. Bd. of Cnty.
Comm’r of Tulsa Cnty, 2000 OK 2, 995 P.2d 1124 (Opala, J., dissenting
¶¶ 9-10 (citing St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989
OK 139, ¶ 10, 782 P.2d 915, 917; State ex rel. Tharel v. Bd. of Comm’rs
of Creek Cnty., 1940 OK 468, syl. 1, 107 P.2d 542, 544 syl. 1; Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995)).
24. See Okla. Const. art. 4, § 1.
25. Okla. Const. art. 7, § 4. Cline v. Okla. Coal. for Reprod. Justice,
2013 OK 93, n.7, 313 P.3d 253, 257 n.7 (“The Supreme Court of Oklahoma ‘alone has the power to authoritatively determine the validity or
invalidity of a statute.’”) (quoting State ex rel. York v. Turpen, 1984 OK
26, ¶ 10, 681 P.2d 763, 767); see also Thrarel, 1940 OK 468, ¶ 8, 107 P.2d
at 547.
26. Article 7, § 5 provides that “[t]he jurisdiction, powers, duties
and procedures of intermediate appellate courts shall be as provided
by rules of the Supreme Court until otherwise provided by statute.”
Okla. Const. art. 7, § 5. Section 30.1 of Title 20 provides that the Court
of Civil Appeals “shall have the power to determine or otherwise dispose of any cases that are assigned to it by the Supreme Court. Its
decisions, when final, shall neither be appealable to the Supreme Court
nor be subject to reexamination by another division of the Court of
Civil Appeals or by the Judges of that Court sitting en banc” except
that “[a] decision of the Court of Civil Appeals may be reviewed by the
Supreme Court if a majority of its Justices direct that a writ of certiorari be granted, and the Supreme Court may, by order, recall a case
from the Court of Civil Appeals.” 20 O.S. 2011 § 30.1.
27. See Coates v. Fallin, 2013 OK 108, ¶ 3, 316 P.3d 924, 925. The
Court of Civil Appeals’ determination in this case that it could not
“address the constitutionality issued raised by Claimant” was error.
We note that at least two other divisions of the Court of Civil Appeals
have addressed the constitutionality of 85A O.S. Supp. 2013 § 2(13), the
same provision of Title 85A at issue in this case. See Morse v. Custom
Facility Servs. et al., Case No. 113,759 (Sept. 11, 2015) (Division I) (unpublished) (holding that 85A O.S. Supp. 2013 § 2(13) was not an unconstitutional special law within the meaning of Art. 5, § 46 of the Oklahoma
Constitution); Pina v. Am. Piping Inspection Inc. et al., Case No. 113,899
(Sept. 17, 2015) (Division IV) (unpublished) (holding that 85A O.S. Supp.
2013 § 2(13) did not violate Art. 2, § 6 of the Oklahoma Constitution).
Certiorari review was granted in Pina, Case No. 113,899, on February 22,
2016, and the case is now pending before this Court.
28. The Attorney General asks us to overrule Dow Jones, 1990 OK
6, 787 P.2d 843. We need not reach that issue today as that case specifically involved the power of the Oklahoma Tax Commission to declare
a statute unconstitutional, and that issue is not before us.
2016 OK 43
DEPARTMENT OF HUMAN SERVICES and
COMPSOURCE OKLAHOMA, Petitioners,
v. NANCY V. BRUCE and THE WORKERS’
COMPENSATION COURT, Respondents.
Case No. 112,070. April 19, 2016
COMPENSATION COURT
¶0 Claimant Nancy Bruce injured her neck
on the job on May 14, 2012, and sought workers’ compensation benefits. Although her
Employer admitted the injury, the trial court
denied compensability finding Claimant’s
Vol. 87 — No. 13 — 5/14/2016
employment was not the major cause of her
injury. Claimant appealed, and a three-judge
panel reversed and found that Claimant’s
employment was the major cause of the injury
to her neck. Employer appealed, and the Court
of Civil Appeals reversed the order of the
three-judge panel. Upon review, we hold that
the three-judge panel’s decision finding Claimant’s work-related injury on May 14, 2012, was
the major cause of Claimant’s neck injury is not
against the clear weight of the evidence.
VACATED; CAUSE REVERSED AND
REMANDED WITH INSTRUCTIONS TO
REINSTATE THE ORDER OF THE THREEJUDGE PANEL FILED JULY 29, 2013
E.W. Keller, Keller, Keller & Dalton P.C., Oklahoma City, Oklahoma, for Respondent Nancy
V. Bruce.
Heather A. Lehman Fagan, Fellers, Snider,
Blankenship, Bailey & Tippens, P.C., Oklahoma
City, Oklahoma, for Petitioners Department of
Human Services and Compsource Oklahoma.
GURICH, J.
¶1 Claimant Nancy Bruce worked as a Certified Nurse’s Assistant, or “residential life staff
aide,” for the Oklahoma Department of Human
Services for twenty-six years where her duties
consisted primarily of lifting clients, cleaning
them up, feeding them, and daily care. On May
14, 2012, Claimant was injured while lifting
one such client. Upon attempting to lift the client, Claimant stated she felt immediate pain in
her neck and a shocking and tearing sensation
which shot down her left arm and into her
thumb. Claimant reported the injury to her
supervisor and went to the emergency room
where it was recommended she follow up with
a pain management doctor. Claimant then
went to Dr. Cheng, who performed an examination and x-rays. Dr. Cheng also ordered an
MRI of Claimant’s cervical spine. The MRI
indicated “severe left neuroforaminal narrowing from disc herniations at C5-6 and C6-7.”1
Dr. Cheng referred her to a neurosurgeon, Dr.
Pollard, who saw Claimant on June 11, 2012.
Around this time, Employer’s insurance carrier appointed a case manager, D.J. Smith, to
Claimant’s case. Although Dr. Pollard recommended a two-level anterior cervical fusion,
and scheduled Claimant’s surgery on four
separate occasions, the case manager for
Employer’s insurance company refused to
authorize any further treatment.
Vol. 87 — No. 13 — 5/14/2016
¶2 The case manager then sent Claimant to
Dr. Snell of Neuroscience Specialists, who
evaluated Claimant on November 1, 2012. Dr.
Snell found Claimant was temporarily totally
disabled and recommended a “C5-6, C6-7
ACDF with allograft bone and plating.”2 Apparently still unhappy with the surgical recommendation of Dr. Snell, the insurance company then
deposed Dr. Snell, wherein the attorney for the
insurance company presented Dr. Snell with
Claimant’s testimony from a prior trial in 2006
wherein Claimant testified to having pain and
numbness in her left arm. Although Dr. Snell
was fully aware of Claimant’s previous injuries, as reported in his evaluation of November
1, 2012, Dr. Snell stated that unless he was able
to reexamine Claimant, he could no longer say
with a reasonable degree of medical certainty
that the major cause of Claimant’s injury was
the May 14, 2012 injury.
¶3 On February 7, 2013, Dr. Snell reevaluated
Claimant. Dr. Snell specifically asked Claimant
about her previous testimony regarding her
left arm pain. Dr. Snell’s report from the February 7, 2013 evaluation provides:
HISTORY OF PRESENT ILLNESS
During the deposition there were some
questions about sworn testimony that she
had. I questioned her about this today. She
tells me that the pain that she was having
at the time that she was giving sworn testimony was more of kind of an achy kind of
tension pain in the arm and it was not an
electric shock kind of pain, which is the
kind of pain she had after her work related
injury. She also said that the chiropractic
had given her significant improvement,
and although she did not have complete
resolution [sic] there were definitely times
between 2009 and her work injury in 2012
where she had potentially months of
improvement to the point where she was
not really having much arm pain. She said
that her chiropractic visit frequency
decreased significantly because of that
associated improvement.
....
CAUSATION
She reports to me she had problems with
her neck really ever since 9-10 years ago.
She also reports that she had some problems with some pain in the left arm which
was more kind of a stretching tension kind
917
of pain and that the chiropractic had significantly helped her with this to the point
where she had several periods where she
had months where she was not really having any arm pain prior to her work-related
injury. She reports that after the 05/14/12
work related injury she started having electric shock type pain in the left arm, which
was a new pain she had not experienced
before. As such, it would appear that her
work-related injury resulted in her symptomatic onset of this electric shock type
pain going down the left arm. Certainly, it
appears that she has had problems with
left arm pain in the past, as noted above.
Per her report today, the quality of her left
arm pain changed significantly to a neuropathic kind of shocking type pain. It would
appear that the onset of the shocking type
neuropathic pain was related to her workrelated injury, per her report.
The above opinions are based on a reasonable degree of medical certainty.3
Notably, Dr. Snell’s February 7, 2013 evaluation also states: “I had recommended a C5-6,
C6-7 ACDF with allograft bone and plating for
her at the 11/01/12 visit and I continue to recommend this. . . . She is currently TTD and I
will keep her at TTD.”4
¶4 In addition to Dr. Snell’s evaluation,
Claimant was also evaluated by Dr. Wolf on
July 30, 2012. Dr. Wolf, who was also aware of
Claimant’s previous complaints of pain in her
neck, found as follows:
The patient was involved in an on-the-job
accident on May 14, 2012, while employed
by Norce (Oklahoma Department of
Human Services). It is my opinion that as
a result of this on-the-job accident, the
patient has sustained injury to her cervical
spine. She continues to have ongoing pain
and upper extremity radicular symptoms
primarily on the left side, to include weakness of the left arm and weakness in grip
strength along with numbness in the
thumb. The patient does have significant
MRI findings of internal derangement of
the cervical spine. She is in need of further
neurosurgical consultation.
In my medical opinion, the major cause of
her injury and ongoing complaints and
symptomatology is the accident on May
14, 2012, while employed by Norce (Oklahoma Department of Human Services). She
918
does have objective medical evidence as
well as permanent anatomical abnormalities as previously set forth.
After taking a history, reviewing the available medical records, and performing a
physical examination I find that this patient
is temporarily totally disabled from her
usual occupation, secondary to this jobrelated injury, from May 14, 2012, and she
will continue to be temporarily totally disabled until there is a resolution of her symptoms by additional testing and/or treatment
or until in my medical opinion she has
reached maximum medical improvement.5
¶5 On November 19, 2012, Claimant was
evaluated, at the insurance carrier’s request, by
Dr. Munneke. Although Dr. Munneke opined
that the “patient did sustain a strain injury to
her cervical spine as a result of her accident on
the aforementioned date [May 14, 2012],” he
concluded that the “patient’s need for surgery
is unrelated to her accident that occurred on
the 14th of May 2012.”6 Dr. Munneke found
that the surgical recommendation of Dr. Snell
was “related to her two prior injuries that
occurred in 2003 and 2004.”7
¶6 Claimant filed a Form 3 with the Worker’s
Compensation Court on July 26, 2012. The trial
court held a hearing on April 23, 2013, and the
Employer stipulated at the hearing that Claimant was involved in a work-related “incident”
on May 14, 2012, but argued that such was not
the major cause of Claimant’s injuries or need
for surgical treatment. Employer contended
that all of Claimant’s complaints stemmed
from work-related injuries in 2003 and 2004.8
Claimant testified at the hearing and did not
deny that she had prior pain in her neck and left
arm due to her earlier work-related injuries.
¶7 However, Claimant also testified, consistent with the medical reports introduced, that
after the May 14, 2012 injury, the pain in the left
side of her neck and down her arm consisted of
a “zapping” and “electrical” sensation, which
was not a symptom she experienced before the
May 2012 injury. In spite of her Employer’s
admission of injury, the trial court, in an order
filed May 6, 2013, denied compensability.
Claimant appealed to a three-judge panel. The
panel reversed, in an order filed July 29, 2013,
and found that Claimant sustained an on-thejob injury “to the NECK (aggravation of preexisting condition),” and that Claimant’s
employment was “the major cause of injury to
Vol. 87 — No. 13 — 5/14/2016
the NECK and need for surgery.”9 The threejudge panel awarded Claimant temporary total
disability benefits and ordered Employer to provide Claimant with reasonable and necessary
medical treatment, including surgery. Employer
appealed, and the Court of Civil Appeals vacated the order of the three-judge panel and directed the Workers’ Compensation Court to enter an
order denying compensability. Claimant petitioned this Court for certiorari review, and we
granted review on November 24, 2014.
¶8 A compensable injury under the Workers’
Compensation Code means “any injury or
occupational illness, causing internal or external harm to the body, which arises out of and
in the course of employment if such employment was the major cause of the specific injury
or illness. . . .” 85 O.S. 2011 § 308(10)(a). “Major
cause” is defined as “more than fifty percent
(50%) of the resulting injury, disease or illness.”
85 O.S. 2011 § 308(28).
¶9 Although COCA cited to Dr. Snell’s
November 1, 2012 evaluation, and Dr. Snell’s
deposition testimony, COCA failed to mention
the reevaluation of Claimant by Dr. Snell on
February 7, 2013, wherein Dr. Snell continued
to assert that Claimant’s work-related injury of
May 14, 2012, was the major cause of her injury
and continued to recommend that Claimant
have surgery. Based upon Dr. Snell’s unshakable opinion, together with other credible medical evidence from treating physicians who
saw Claimant on referral from Dr. Snell and
objective test findings supporting Claimant’s
need for surgery as a result of her most recent
on-the-job injury, we conclude that the threejudge panel’s decision finding Claimant’s
work-related injury on May 14, 2012, was the
major cause of Claimant’s neck injury is not
against the clear weight of the evidence. See 85
O.S. 2011 § 340(D); Williams Cos. v. Dunkelgod, 2012 OK 96, ¶ 18, 295 P.3d 1107, 1113.
VACATED; CAUSE REVERSED AND
REMANDED WITH INSTRUCTIONS TO
REINSTATE THE ORDER OF THE THREEJUDGE PANEL FILED JULY 29, 2013
Edmondson, Colbert and Gurich, JJ., concur.
¶11 Winchester and Taylor, JJ., dissent.
GURICH, J.
Vol. 87 — No. 13 — 5/14/2016
3. Record on Appeal at 37-38.
4. Record on Appeal at 37 (emphasis added).
5. Record on Appeal at 40-41 (emphasis added).
6. Resp. Ex. 1, at 4.
7. Id. Dr. Munneke never treated the Claimant, and he was not
deposed in this case. His report references certain tests conducted in
2012, the finding of disc herniations at two levels, and evidence of left
median nerve entrapment at the wrist. Dr. Munneke agreed that
Claimant sustained an injury on May 14, 2012, and needed surgery. He
acknowledged a significant amount of treatment and objective testing
after the May 14, 2012 injury. His report contains no estimate of when
her two discs were herniated. There is no explanation of how she continued to work in the same job between 2004 and 2012 with disc herniations. He then states that she had a nearly normal exam in his office.
Yet he paradoxically opines that her current need for surgery is related
to her two prior injuries. The opinion of Dr. Snell has considerably
more credibility than the opinion of Dr. Munneke. Resp. Ex. 1, at 2-4.
8. Claimant was injured on-the-job in 2003 after being hit in the
head by a patient. The injury resulted in three cracked teeth and headaches due to cervical sprain/strain. Claimant filed a workers’ compensation claim — WCC# 2005-00951-R — and sought dental treatment
and medical treatment to her neck. The Employer conceded Claimant’s
compensability for dental treatment but denied her request for medical
treatment to her neck due to an intervening work-related automobile
accident on March 1, 2004. The court denied Claimant’s request for
medical treatment to her neck due to the intervening automobile accident on April 3, 2006. Claimant did not appeal that order.
With regard to the work-related automobile accident on March 1,
2004, Claimant filed a separate workers’ compensation case — WCC#
2004-3458-Y. The case was settled by Joint Petition on December 22,
2004. The Joint Petition found Claimant sustained accidental personal
injury arising out of and in the course of her employment to her right
leg, left leg, and all body parts known or unknown.
In June of 2010, Claimant sought to reopen the WCC# 2005-00951R (the 2003 injury) based on change of condition for the worse to her
neck. The Workers’ Compensation Court reopened the case and authorized medical treatment to Claimant’s neck. However, the Court of
Civil Appeals reversed and found that the trial court had previously
determined that the automobile accident was the intervening cause of
the neck injury. Thus, COCA held that “because the second workrelated accident broke the causal nexus to the original injury, any/all
necessary treatment to Claimant’s neck is attributable to that second
accident alone. A finding that the motor vehicle accident constitutes
the intervening cause of the neck injury is tantamount to a finding that
the neck injury is not connected to the original 2003 workplace injury.”
Okla. Dep’t of Human Servs. v. Nancy Bruce et al., Case No. 109,804,
at 7 (Nov. 30, 2012) (unpublished).
Claimant did not petition this Court for certiorari review of that
opinion, and mandate issued on January 15, 2013.
9. Record on Appeal at 48-49.
2016 OK 44
Teresa Lynn Allen, Appellant, v. John J.
Harrison, D.O. Appellee.
No. 111,877. April 19, 2016
CERTIORARI TO THE COURT OF CIVIL
APPEALS, DIVISION I
¶0 Patient, who accidentally swallowed a
nail, brought a medical malpractice action
based, inter alia, upon a claim of lack of
informed consent against the hospital’s
emergency room physician after the physician advised patient to “eat fiber and let the
nail pass.” The physician did not, however,
disclose the alternative medical options
which included endoscopic and surgical
removal of the ingested nail. Following
severe vomiting, the patient proceeded to a
different emergency room. Emergency surgery was performed to remove the nail, and
919
the patient was treated for a perforated and
infected bowel. The trial court, Honorable
Brent Russell, granted partial summary
judgment in favor of the physician on the
issue of informed consent, and the Court of
Civil Appeals affirmed.
CERTIORARI PREVIOUSLY GRANTED;
OPINION OF COURT OF CIVIL APPEALS
VACATED; TRIAL COURT REVERSED;
CAUSE REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION
Jon Williford, Griffin, Reynolds, and Associates, Oklahoma City, for Appellant.
Lane O. Krieger, Wiggins Sewell & Ogletree,
Oklahoma City, for Appellee.
COLBERT, J.
¶1 This is a medical malpractice case premised in part on the doctrine of informed consent. The issue presented on certiorari review
is whether the doctrine of informed consent
requires a physician to obtain the patient’s consent before implementing a nonsurgical or
noninvasive course of treatment. Inherent in
the question presented, is whether a physician
— in addition to discussing with the patient
treatment alternatives that the physician recommends — should discuss medically reasonable alternatives that the physician does not
recommend. Based on the following, this Court
answers both questions in the affirmative.
BACKGROUND AND PROCEDURAL
HISTORY
¶2 Appellant, Teresa Lynn Allen (Allen),
swallowed a small nail on June 1, 2009. She
went to Duncan Regional Hospital’s emergency room in Duncan, Oklahoma. Appellee, John
J. Harrison, D.O., emergency room physician
(Physician), examined Allen. Physician ordered
an X-ray of Allen’s stomach. The X-ray confirmed the presence of a foreign body in Allen’s
stomach, just below the diaphragm. Based on
Physician’s assessment and clinical judgment,
Physician discharged Allen prescribing: (1) “a
high-fiber diet to let the nail pass;” (2) return to
the hospital if she had any problems; and (3)
follow up with her family doctor in three
days. On June 2, 2009, following severe vomiting, Allen went to the emergency room at
Southwestern Hospital in Lawton, Oklahoma. That same day, the hospital performed
emergency surgery to remove the ingested
nail from Allen’s intestines. At that time, Al920
len was treated for a perforated and infected
bowel. In addition, Allen endured two additional surgeries to treat the complications that
arose from the emergent surgery of June 2, 2009.
¶3 Allen sued Duncan Regional Hospital and
Physician for the defendants’ alleged medical
negligence and failure to obtain Allen’s informed consent.1 Specifically, Allen contended
that Physician failed to disclose the potential
risk in letting the nail pass through her digestive system as well as the alternatives to his
recommended course of treatment. Had Physician effectively discharged his duty to disclose,
Allen would have “chosen the option of no
treatment or a different course of treatment.”
¶4 During discovery, Physician admitted
that he neither advised Allen of the alternative
treatment options — namely, endoscopic or
surgical intervention — nor consulted with a
surgeon prior to Allen’s discharge. However,
Physician testified that he was not qualified to
perform an endoscopic or other surgical procedure to extract the nail. Those alternative treatment options, according to Physician, were
beyond his field of practice. And, therefore,
Physician was not required to advise Allen of
those alternatives.
¶5 Physician filed a Motion for Partial Summary Judgment asserting that he was entitled
to judgment as a matter of law on Allen’s
informed consent claim. Physician contended
that under Oklahoma law, a valid informed
consent claim is only recognized in cases
involving the performance of an affirmative
treatment by a defendant physician. But where,
as here, Physician relied on his clinical judgment and did not affirmatively treat and cause
Allen’s injuries, the elements of informed consent cannot be satisfied. Physician also alleged
that Oklahoma law does not require an emergency physician to offer “options” of surgical/
endoscopic treatment outside the emergency
department and outside the expertise of an
emergency physician. The trial court agreed and
granted Physician’s motion, reasoning that,
the Court can find no case supporting the
doctrine of informed consent where no
action was taken by the attending physician. Rather, such doctrine applies when
the treatment received causes injury, and
alternative procedures were not explained.
Plaintiff’s claim is one of negligence based
upon Defendant’s failure to appropriately
Vol. 87 — No. 13 — 5/14/2016
recognize and treat the symptoms presented by Plaintiff.
(Emphasis added). Allen unsuccessfully
sought reconsideration of the trial court’s ruling granting Physician’s summary judgment
request. Allen’s medical negligence claim
against Physician, however, proceeded to trial.
The jury returned a verdict in favor of Physician and Allen appealed.
¶6 The Court of Civil Appeals affirmed on
slightly different grounds. Relying on Smith v.
Reisig, M.D., Inc., 1984 OK 56, 686 P.2d 285, the
appellate court concluded the doctrine of
informed consent is triggered only when a
physician provides surgical treatment resulting
in the patient’s injury but failed to disclose the
viable alternatives to surgery. Allen filed this
petition for certiorari review, which this Court
granted.
STANDARD OF REVIEW
¶7 Upon appellate review, summary judgment will be affirmed only if this Court determines the moving party presented evidentiary
materials establishing that uncontroverted
facts and all inferences that can be drawn
therefrom support only one conclusion — that
the moving party is entitled to judgment as a
matter of law. See Wathor v. Mut. Assurance
Adm’rs, Inc., 2004 OK 2, ¶ 4, 87 P.3d 559, 561;
Hadnot v. Shaw, 1992 OK 21, ¶ 25, 826 P.2d 978,
987. However, where a de novo review of the
record in the light most favorable to the nonmoving party confirms that no material issues
of fact exist, but rather reveals that the trial
court misinterpreted the applicable law, summary judgement will be reversed. See, Kluver
v. Weatherford Hospital Authority, 1993 OK 85,
¶ 14, 859 P.2d 1081, 1083 (issues of law are
reviewed de novo).
DISCUSSION
¶8 This Court begins with the premise that
“each man [is] considered to be his own master.” Scott v. Bradford, 1979 OK 165, ¶ 9, 606
P.2d 554, 556. A patient’s right of self-decision
is only exercised effectively if the patient possesses enough information to enable an informed choice. Id.,¶ 10, 606 P.2d at 557. That is,
a patient has the right to make his or her own
determination about treatment. With that
premise in mind, Oklahoma law forbids a physician to substitute one’s judgment for that of
the patient by any form of artifice. Id.,¶ 9, 606
P.2d at 556. This Court’s decision in Scott v.
Vol. 87 — No. 13 — 5/14/2016
Bradford rendered almost thirty-six years ago,
anchored the doctrine of informed consent in
that premise. Id.
¶9 Informed consent is a basic principle
sounding in ethics and law that physicians
must honor unless the patient is unconscious
or otherwise incapable of consenting and harm
from failure to treat is imminent. American
Medical Association, Code of Medical Ethics:
Opinion 8.08 (2006). The linchpin of informed
consent is a physician’s duty to inform a
patient of the medically reasonable treatment
options and their attendant risks. Id. A physician is charged with the obligation to present
the medical facts accurately to the patient or
his proxy and to make recommendations for
management in accordance with good medical
practice. In so doing, a physician should disclose all courses of treatment that are medically
reasonable under the circumstances. But, a
physician is not permitted to “withhold[] any
facts which are necessary to form an intelligent
consent by the patient to the proposed treatment.” Parris v. Limes, 2012 OK 18, ¶ 7, 277
P.3d 1259, 1263. In fact, to effectively discharge
“this duty, a physician is obligated not only to
disclose what he intends to do, but to supply
information which addresses the question of
whether he should do it.” Id. So, “[i]f a physician breaches this duty, [a] patient’s consent is
defective, and [the] physician is responsible for
the consequences.” Scott, 1979 OK 165, ¶ 10,
606 P.2d at 557.
¶10 A cause of action premised on the lack of
informed consent is comprised of three essential elements: (1) non-disclosure, (2) causation,
and (3) injury. Scott v. Bradford, 1979 OK 165, ¶
18, 606 P.2d 554, 558. The full disclosure rule
announced in Scott is not without exceptions.
Although a physician’s failure to disclose is the
first element in maintaining this cause of action,
such a duty may be excused when the circumstances so warrant. For instance, disclosure is
not required when the risks are common
knowledge or known by the patient; “where
full disclosure would be detrimental to a
patient’s total care and best interest …;” or in
cases of an emergency in which the patient or
his proxy is unable to determine for himself
“whether treatment should be administered
…”. Id., ¶ 16, 606 P.2d at 558.
¶11 On appeal, the parties disagree about the
interpretation of Scott, and its progeny. The differences between these interpretations come to
the fore when a court, as here, must consider a
921
physician’s duty to obtain a patient’s informed
consent regardless of whether the physician is
implementing an invasive or noninvasive
course of treatment. Allen argues that the doctrine of informed consent is not limited to
surgical intervention. Rather, the doctrine applies to a physician’s recommenced course of
treatment whether invasive or noninvasive.
Physician, however, contends the doctrine
does not apply to emergency room physicians. Therefore, to require an emergency room
physician to provide surgical/invasive options
outside his scope of practice and contrary to his
medical judgment would be an expansion of
Oklahoma’s informed consent laws. Physician is
mistaken.
¶12 The problem with the Physician’s interpretation and the application of the courts
below are twofold: (1) it falsely advances the
position that a physician must secure a patient’s
informed consent only for surgical procedures,
not for those that are noninvasive; and (2) it
ignores this Court’s expressed pronouncement
in Scott, that the scope of a physician’s communication is measured by the “patient’s need
to know enough to enable him to make an
intelligent choice,” not the physician’s professional standard. See Scott, 1979 OK 165, ¶ 15,
606 P.2d at 558.
¶13 Pursuant to Scott, the informed consent
doctrine is predicated on a physician’s duty to
disclose. The decisive factor is not the invasiveness of the treatment, but whether the physician
provided the patient with enough information
that would enable the patient to make an
informed choice before subjecting the patient to
a recommended course of treatment. As a practical matter, a physician will recommend a course
of treatment and a patient generally chooses to
adopt the physician’s recommendation. It is
well-settled that the ultimate decision rests
with the patient. Therefore, physicians do not
adequately discharge their obligations by limiting their disclosures to the treatments they
recommend or treatments within their scope of
practice.
¶14 In Smith v. Reisig, M.D., Inc., a patient
filed suit against her physician for lack of
informed consent after undergoing a hysterectomy that resulted in injury to her bladder.
1984 OK 56, 686 P.2d 285. The physician’s testimony and other evidence established that hormonal therapy was a viable alternative to the
hysterectomy and possibly preferable to the
surgery. Id., ¶ 11, 686 P.2d at 288. But, that alter922
native was not disclosed to the patient. This
Court found the physician failed to disclose the
viable alternatives to the patient and, “that
single failure to inform” was a violation of the
physician’s obligation to disclose. Id. “If the
remaining elements are satisfied such violation
gives rise to liability for the results of the treatment.” Id.
¶15 Most recently, in Parris v. Limes, this
Court held that an informed consent claim
could withstand summary judgment when the
patient claimed he would not have undergone
multiple invasive tests after the surgical removal of his prostate, had the physician ordering
the tests disclosed that the surgical pathology
revealed no cancerous cells. 2012 OK 18, 277
P.3d 1259.
¶16 In examining the seminal cases shaping
the informed consent doctrine, it is patently
clear — a physician has a duty to inform the
patient not only of the medically reasonable
alternatives the physician recommends, but of
medically reasonable alternatives that the physician does not recommend to the patient or
disclose. However, here, Physician would have
this Court believe that because the factual scenarios out of which the doctrine arose involved
some affirmative violation of the patient’s
physical integrity, such as the surgical procedures performed in Scott and Smith or the
invasive diagnostic tests administered in Parris, a physician’s duty to disclose is somehow
limited to only those situations. This Court
never intended to restrict a physician’s duty to
disclose to only invasive treatments. The doctrine applies equally to invasive, as well as noninvasive, procedures. And, any other interpretation belies the fundamental premise that “each
man [is] considered to be his own master.” Scott,
1979 OK 165, ¶ 9, 606 P.2d at 556. At a minimum,
Physician should have explained to Allen the
associated risks and the alternatives to letting
the nail pass through her digestive system along
with his reasons for the recommended course of
treatment.
¶17 Likewise, Physician’s sole reliance on his
clinical judgment as a basis for excusing his
obligation to disclose is without merit. As discussed and expressly rejected in Scott, the general rule of the “professional standard of care”
in determining what must be disclosed “perpetuate[d] medical paternalism by giving the
[medical] profession sweeping authority to
decide unilaterally what [was] in the patient’s
best interests.” 1979 OK 165, ¶ 13, 606 P.2d at
Vol. 87 — No. 13 — 5/14/2016
557. That is, a patient was provided information on a need-to-know basis in conformance
with the community’s prevailing medical practice. Id. In application, the professional standard would severely limit the protections
granted to an injured patient and jeopardize a
patient’s right of self-determination. Accordingly, this Court declined to impose the professional standard. Id. The basic right to know
and decide is the foundation of the full-disclosure rule. Therefore, a physician’s duty of disclosure must be measured by his patient’s need
to know enough information to enable the
patient to make an intelligent choice. Id. This
duty exists regardless of whether the prescribed treatment is invasive or noninvasive.
¶18 Moreover, Physician’s erroneous assertion that he did not “affirmatively treat” Allen is
unavailing. Physician disingenuously attempts
to distinguish this case from Scott, Smith, and
Parris as those cases involved an “affirmative
treatment.” Although the surgeons in Scott and
Smith performed hysterectomies; and the physician in Parris administered multiple cancer
screenings — here, Physician prescribed a highfiber diet which is an affirmative treatment.
Under Oklahoma law, treatment is “the use of
drugs, surgery, including appliances, manual
or mechanical means, or any other means of
any nature whatsoever, for the cure, relief, palliation, adjustment or correction of any human
ill . . ..” Okla. Stat. tit. 59, § 731.1(4). Clearly,
Physician’s recommended course of treatment
to “eat fiber and let the nail pass” falls under
the “any other means of any nature whatsoever, for the cure, relief, palliation, adjustment or
correction of any human ill ….” Id.
¶19 Physician testified that he made the decision to prescribe a high-fiber diet after reviewing
Allen’s X-ray and determining the nail had
cleared her diaphragm. Although Physician
acknowledged that endoscopic or surgical intervention was a medically reasonable alternative,
he withheld this information from Allen as it
was beyond his scope of practice and experience. Further, Physician had a duty to disclose
the alternative invasive interventions even to the
extent that it may have required consultation
with another medical professional to facilitate
the disclosure. Based on his clinical judgment
Physician, not Allen, made the decision to let the
nail pass through her digestive system. But, that
was not solely within Physician’s purview.
Vol. 87 — No. 13 — 5/14/2016
CONCLUSION
¶20 Today, this Court emphasizes the doctrine of informed consent applies equally to
invasive as well as noninvasive medical treatments and treatment alternatives regardless of
a physician’s scope of practice. To effectively
discharge a physician’s duty to disclose, a physician must disclose the medically reasonable
alternatives regardless of whether it is the physician’s preferred method of treatment. The
ultimate decision of what treatment a patient
receives rests with the patient, not the physician. The trial court erred in holding that
Allen’s claim of informed consent was not
actionable. Resultantly, this matter is remanded for further proceedings consistent with this
opinion.
CERTIORARI PREVIOUSLY GRANTED;
OPINION OF COURT OF CIVIL APPEALS
VACATED; TRIAL COURT REVERSED;
CAUSE REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION
CONCUR: Reif, C.J., Combs, V.C.J., Kauger,
Watt, Edmondson, Colbert, and Gurich, JJ.
DISSENT: Winchester and Taylor, JJ.
COLBERT, J.
1. Allen and Duncan Regional Hospital entered into a settlement
agreement prior to trial. The case against Physician, however, proceeded to trial.
2016 OK 45
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. KYLE EDWARD GOERKE,
Respondent.
SCBD 6382. April 25, 2016
¶0 ORDER APPROVING RESIGNATION
PENDING DISCIPLINARY PROCEEDINGS
¶1 Complainant, Oklahoma Bar Association
(Bar Association), has applied pursuant to Rule
8.2 of the Rules Governing Disciplinary Proceedings (5 O.S.2011 Ch. 1, App. 1-A) for an
order approving the resignation of the respondent, Kyle Edward Goerke, pending disciplinary proceedings. The Bar’s application and the
respondent’s affidavit of resignation reveal the
following.
¶2 On April 8, 2016, the respondent both
executed and filed with this Court his affidavit
of resignation from membership in the Bar
Association pending disciplinary proceedings.
923
¶3 The respondent’s affidavit of resignation
reflects that: (a) it was freely and voluntarily
rendered; (b) he was not subject to coercion or
duress; and (c) he was fully aware of the consequences of submitting the resignation.
¶4 The affidavit of resignation states respondent’s awareness of a grievance received and
investigated by the Bar Association, and the
Professional Responsibility Commission’s
approval of commencing a formal disciplinary
proceeding against respondent on the allegations that respondent failed to safekeep in his
client trust account a client’s retainer until
earned by respondent.
¶5 The resignation states the respondent is
aware the allegations against him, if proven,
would constitute violations of Rules 1.1, 1.3,
1.4, 1.5, 1.15, and 8.4 (a) & (c) of the Oklahoma
Rules of Professional Conduct, 5 O.S.2011,
Ch.1, App. 3-A, and Rules 1.3 and 5.2 of the
Rules Governing Disciplinary Proceedings, 5
O.S.2011, Ch. 1, App. 1-A, and his oath as an
attorney.
¶6 The respondent states he is aware the burden of proof regarding the allegations against
him rests upon the Oklahoma Bar Association,
and he waives any and all rights to contest the
allegations
¶7 The respondent states his awareness of
the requirements of Rule 9.1, of the Rules Governing Disciplinary Proceedings, and he states
he shall comply with that Rule within twenty
(20) days following the date of his resignation.
¶8 The respondent states his intent that his
resignation be effective from the date and time
of its execution and that he will conduct his
affairs accordingly. The Bar Association requests the Court make the resignation effective
on the date of its execution by respondent. We
note the resignation was executed by respondent, submitted to the Bar Association, and
filed in this Court on the same day. See State ex
rel. Oklahoma Bar Ass’n v. Demopolos, 2015 OK
50, ¶ 36 & n. 56, 352 P.3d 1210, 1221 (a proper
resignation may be made effective on the date
of submission to the Court); State ex rel. Oklahoma Bar Ass’n v. Bourland, 2001 OK 12, ¶¶
14-17, 19 P.3d 289, 291-292 (a proper resignation
may be made effective on the date filed with the
Court when the lawyer’s conduct has treated the
resignation as effective upon that date).
¶9 The respondent states his awareness that
a Rule 8.2 resignation pending disciplinary
924
proceedings may be either approved or disapproved by the Oklahoma Supreme Court.
¶10 The respondent states he is aware he
may make no application for reinstatement
prior to the expiration of five years from the
effective date of the order approving his resignation, and that reinstatement requires compliance with Rule 11 of the Rules Governing Disciplinary Proceedings. See 5 O.S.2011 Ch. 1,
App. 1-A, Rule 8.2, Rules Governing Disciplinary Proceedings; State ex rel. Oklahoma Bar Association v. Bourland, 2001 OK 12, 19 P.3d 289; In re
Reinstatement of Hird, 2001 OK 28, 21 P.3d 1043.
¶11 The respondent states he is aware the
Client’s Security Fund may receive claims from
his former clients, and he shall pay to the Oklahoma Bar Association, prior to reinstatement,
those funds, including principal and interest,
expended by the Client’s Security Fund for
claims against him. See 5 O.S.2011 Ch. 1, App.
1-A, Rule 11.1(b), Rules Governing Disciplinary
Proceedings; State ex rel. Oklahoma Bar Association v. Heinen, 2003 OK 36, ¶ 9, 84 P.3d 708, 709.
¶12 The respondent states he surrendered his
Oklahoma Bar Association membership card to
the Office of the General Counsel.
¶13 The respondent acknowledges he must
cooperate with the Office of the General Counsel by providing current contact information
and identifying active cases wherein client
documents and files should be returned to the
client or forwarded to new counsel, and cases
where fees or refunds are owed by respondent.
¶14 The application for approval of respondent’s resignation filed by the Bar Association
states no costs were incurred in the investigation of respondent.
¶15 The official roster name and address of
the respondent is Kyle Edward Goerke, O.B.A.
No. 12108, 1097 N. Wiegle, P.O. Box 305, Watonga, OK 73772.
¶16 IT IS THEREFORE ORDERED that the
application by the Bar Association for an order
approving Kyle Edward Goerke’s resignation
be approved, and the resignation is deemed
effective on the date it was executed and filed
in this Court, April 8, 2016.
¶17 IT IS FURTHER ORDERED that respondent’s name be stricken from the Roll of Attorneys and that he make no application for
reinstatement to membership in the Oklaho-
Vol. 87 — No. 13 — 5/14/2016
ma Bar Association prior to five years from
the effective date of his resignation.
¶18 IT IS FURTHER ORDERED that costs are
not awarded due to the express statement by
the Oklahoma Bar Association that no costs
were incurred.
¶19 IT IS FURTHER ORDERED that if any
funds of the Client’s Security Fund of the Oklahoma Bar Association are expended on behalf
of respondent, he must show the amount paid
and that the same has been repaid, with interest, to the Oklahoma Bar Association to reimburse such Fund prior to reinstatement.
¶20 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 25th DAY OF
APRIL, 2016.
/s/ Douglas L. Combs
VICE CHIEF JUSTICE
¶21 ALL JUSTICES CONCUR.
2016 OK 46
JAMES LOYD, Petitioner, v. MICHELIN
NORTH AMERICA, INC., and THE
WORKERS’ COMPENSATION COURT OF
EXISTING CLAIMS, Respondents.
Case No. 112,754. April 26, 2016
COMPENSATION COURT OF EXISTING
CLAIMS
¶0 Claimant James Loyd was awarded permanent partial disability benefits after being
injured on the job. Loyd did not appeal, and
the order became final. Less than a month after
such order was issued, Loyd filed a Form 9
requesting continuing medical maintenance
and requesting a portion of his permanent partial disability award be commuted to a lump
sum payment. Upon consideration, we hold
that a claimant may seek to commute his or her
permanent partial disability award after the
hearing on permanent partial disability under
85 O.S. 2001 § 41(A). Additionally, we conclude
that because Loyd did not request reservation
of continuing medical maintenance and the
trial court’s order awarding permanent partial
disability did not address or reserve the issue
of continuing medical maintenance, Loyd’s
only recourse was to seek continuing medical
maintenance through a reopening proceeding
under 85 O.S. 2001 § 28.
Vol. 87 — No. 13 — 5/14/2016
EXISTING CLAIMS’ ORDER VACATED;
CAUSE REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS
David Custar, Richard A. Bell, The Bell Law
Firm, Norman, Oklahoma, for Petitioner
Connie M. Wolfe, Connie M. Wolfe & Associates, PLLC, Oklahoma City, Oklahoma, for
Respondents
GURICH, J.
Facts & Procedural History
¶1 Loyd was employed by Michelin North
America for thirty years. On November 10,
2009, Loyd suffered injuries to his head, neck,
back, right shoulder, right hip, and right knee
after being thrown into a steel cage by a 500800 pound roll of fabric. At the time of his
injury, he was working as a wind-up operator
for a “fabric calender”1 and was attempting to
repair a broken bolt of fabric. Loyd reported
the incident to his Employer.
¶2 On November 20, 2009, Loyd was again
attempting to repair a broken bolt of fabric
when his left ankle gave out and he injured his
left hand, left knee, left shoulder, and left
ankle.2 On December 21, 2009, Loyd filed a
Form 3 for his injuries from the November 10,
2009 incident, and he filed an amended Form 3
on January 20, 2010, to add the injuries suffered
in the November 20, 2009 incident. An Order
Determining Compensability and Awarding
Temporary Total Disability Benefits was
entered on May 20, 2010. From December of
2010 to October of 2012, Loyd had surgery on
both shoulders, his back, both knees, and left
ankle.
¶3 On May 16, 2013, Loyd filed a Form 9,
requesting the following issues be set for trial:
“Temporary disability from 11-24-09 to 5-6-13;
Medical Treatment from 11-9-09 to Indefinite;
Permanent Partial Disability/Permanent Partial
Impairment; Cont. Medical Treatment; Disfigurement; Pain Management Specialist; Prescriptions; Should be allowed to remain under the
care of Dr. Johnsen and Pam Holt for depression; Commute.”3 A hearing was held on
November 26, 2013. The transcript from such
hearing was not included in the record on
appeal. On December 20, 2013, the trial court
entered an Order Awarding the Nature and
Extent of Permanent Partial Disability Benefits
and Disfigurement. The order did not reserve
any issues for future hearing and made no
925
mention of continuing medical treatment, prescriptions, or commutation. Loyd did not appeal the order.
¶4 On January 15, 2014, just twenty-six days
later, Loyd filed a Form 9, seeking to set for
trial the issues of continuing medical maintenance and commuting a portion of his permanent partial disability award to a lump sum.
Employer filed an Answer, alleging res judicata
and claim preclusion as an affirmative defense.
The court held a hearing on March 24, 2014,
and filed an Order on March 25, 2014, denying
Loyd’s request for continuing medical maintenance and Loyd’s request to commute.4 The
court found that the prior permanent partial disability order of December 20, 2013, had become
final, and thus, the court lacked jurisdiction to
grant Loyd’s requests. Loyd appealed, and the
Court of Civil Appeals affirmed. Loyd petitioned this Court for certiorari review, and we
granted review on March 30, 2015.
Standard of Review
¶5 The issues presented in this case concern
the jurisdiction of the Workers’ Compensation
Court to hear and determine Loyd’s request for
continuing medical maintenance as well as
Loyd’s request to commute a portion of his
permanent partial disability award to a lump
sum payment. Such jurisdictional issues are
reviewed de novo. See Triad Transport, Inc. v.
Wynne, 2012 OK 30, ¶ 7, 276 P.3d 1013, 1016.
Under a de novo standard of review, this Court
is afforded “plenary, independent, and non-deferential authority to examine the issues presented.” Benefiel v. Boulton, 2015 OK 32, ¶ 10, 350
P.3d 138, 142 (internal quotation omitted).
Loyd’s Request to Commute a Portion of His
Permanent Partial Disability Award to a
Lump Sum
¶6 Section 41(A) of Title 85 provides:
A. Awards for permanent partial disability
under Section 22 of this title shall be made
for the total number of weeks of compensation which the Court shall find the claimant will be entitled to receive, less any
sums previously paid which the Court may
find to be a proper credit thereon. When
the award becomes final, the whole sum or
any unpaid portion thereof shall operate as
a final adjudicated obligation and payment
thereof may be enforced by the claimant or
in case of his death, by the surviving beneficiary entitled to the proceeds as provid926
ed in Section 48 of this title. All awards
shall be paid by periodic installments as
determined by the Court. Whenever an
injured person receives an award for permanent partial disability, permanent total
disability or death benefits, the injured
employee or claimant, for good cause
shown, may have the award commuted to
a lump-sum payment by permission of the
Court. This authorization for commutation
shall not be applicable to attorney fees in
permanent total disability cases. The lumpsum payment shall not exceed Four Thousand Dollars ($4,000.00) or twenty-five percent (25%) of the total award, whichever is
the larger sum. . . .5
¶7 This Court has not previously addressed
whether a claimant must seek to commute a
permanent partial disability award at the hearing on permanent partial disability, as the
Employer in this case argues, or whether the
claimant may seek to commute the award at a
later date. In Lee Way Motor Freight, Inc. v. Wilson, 1980 OK 48, 609 P.2d 777, the claimant was
awarded permanent partial disability benefits
in September of 1978. In January of 1979, claimant sought to commute the balance of his
award to a lump sum. Although the issue on
appeal in Wilson was whether a later-enacted
statute limited the amount of the award that
could be commuted, the Court did not express
concern or even mention that claimant’s motion
was pressed after the hearing on permanent
partial disability. Similarly, in Bagley v. Big “E”
Industries, 1989 OK CIV APP 34, 776 P.2d 569,
the claimant was awarded permanent partial
disability benefits in August of 1987. In September of 1987 he moved to commute his
award to lump sum payment. Again, although
the issue on appeal was whether the trial court
could direct payment of the lump sum to
claimant’s ex-wife to satisfy back child support, the Court of Civil Appeals did not express
concern that claimant’s motion was filed after
the hearing on permanent partial disability.
¶8 Although Wilson and Bagley do not directly address the issue in the case before us, we
find such cases consistent with the language of
§ 41(A) and conclude that a claimant may seek
to commute his or her permanent partial disability award after the hearing on permanent
partial disability. Section 41(A) provides that
“[w]henever an injured person receives an award
for permanent partial disability . . . the injured
employee or claimant, for good cause shown,
Vol. 87 — No. 13 — 5/14/2016
may have the award commuted to a lump-sum
payment by permission of the Court.”6 Such
emphasized language implies that the court
has already issued an order awarding permanent partial disability benefits. Thus, a claimant would necessarily have to seek to commute
the award after receiving the order awarding
permanent partial disability benefits. In addition, the statutory language only allows the
court to commute a portion of the award “for
good cause shown.”7 A claimant, at the time of
the hearing on permanent partial disability,
may or may not have a specific financial hardship or “good cause” to seek payment of the
award in a lump sum. However, such financial
need could arise at a later date, requiring the
claimant to seek to commute the award after
such award has been made.
reopen the case based on change of condition,
and the trial court found that claimant had
sustained a change of condition for the worse
and awarded additional permanent partial disability benefits. At the hearing that resulted in the
awarding of additional permanent partial disability benefits, claimant did not request reservation of continuing medical maintenance, and
the order of the court did not address or reserve for future hearing the issue of continuing
medical maintenance. Claimant did not appeal
the order. Two years later, claimant sought
reimbursement for prescription medications
purchased after the order awarding additional
permanent partial disability benefits. Claimant
argued that the prescriptions were specifically
for the maintenance of the previously adjudicated change in condition.
¶9 In the case before us, although Loyd testified to his financial situation regarding his
request to commute a portion of his award to a
lump sum payment, the trial court made no
ruling on the issue. Instead, the trial court
found it lacked jurisdiction to even hear the
issue. On remand, the court shall determine
whether Loyd has shown good cause, entitling
him to have a portion of his permanent partial
disability award commuted to a lump-sum
payment.
¶12 The Court, quoting Bill Hodges Truck Co.
v. Gillum, 1989 OK 86, 774 P.2d 1063, stated:
Loyd’s Request for Continuing Medical
Maintenance
¶10 In the case before us, although continuing medical maintenance was listed on Loyd’s
Form 9, the transcript of the hearing on permanent partial disability held on November 26,
2013, is not part of the appellate record.
Employer’s brief states that “Claimant did not
‘expressly ask’ for Continued Medical Maintenance at the November 23, 2013 hearing,”8 and
Loyd specifically states in his brief that the
“trial court was not called upon in the [November] 2013 hearing to address [his] need for
continuing medical maintenance.”9 The court’s
order awarding permanent partial disability
did not address continuing medical maintenance. Although Loyd had the opportunity to
appeal the order to seek a correction or ruling
on the issue, he did not appeal and the order
became final.
¶11 In Pitchford v. Jim Powell Dozer, Inc.,
2000 OK 12, 996 P.2d 935, the claimant was
injured on the job and received an award of
permanent partial disability benefits. Approximately four years later, claimant sought to
Vol. 87 — No. 13 — 5/14/2016
A permanent disability award constitutes a
solemn adjudication that the worker’s
healing period has come to an end and his
condition or state of health has reached the
very optimum that is then medically obtainable. The law assumes that a condition of
health, once adjudged to be permanent, is
stationary. Stationary conditions generally
require no medical care or maintenance.
The moment permanent disability begins,
the right to receive medical treatment ceases by operation of law except, of course, for
certain limited tightly structured and explicitly authorized situations. Permanent disability, partial or total is presumed to continue
until recurrence of temporary disability is
established.... Once adjudged to have permanent disability, a worker is entitled to medical attention only upon establishing recurrence
of the postaward healing period in a reopening
proceeding under 85 O.S.1981 § 28.10
The Court held that the order awarding
claimant additional permanent partial disability benefits “caused claimant’s right to receive
medical treatment to end unless the claimant
could demonstrate that under the facts in his
situation he could fall within ‘certain limited
tightly structured and explicitly authorized
situations.’”11 The Court found that such situations included situations where the original
order awarding permanent disability benefits authorized future medical treatments or continuing medical care.12
927
¶13 The Court also found that because the
claimant did not request reservation of continuing medical maintenance and the trial
court’s order did not address or reserve the
issue of continuing medical maintenance, the
claimant could not be “reimbursed for prescription medications purchased after the order
determining permanent partial disability.”13
The Court held: “For the prescriptions to be
considered for maintenance purposes, they
must be included in the order granting permanent partial disability. Failing to show that he
falls within the exception, claimant must show
a change of condition for the worse before continuing medical maintenance benefits may be
awarded.”14
¶14 In the case before us, Loyd asks us to rely
on Armstrong v. Unit Drilling, 2002 OK 17, 43
P.3d 383. We find Armstrong is distinguishable.
In that case, it was undisputed that the claimant
had sought continued medical maintenance at the
hearing on his claim for permanent disability
but that the trial court failed to include such in
its order.15 Additionally, Armstrong is distinguishable because in that case the Court found
it was clear that the parties had interpreted the
trial court’s original order to require employer
to pay for prescription costs because the
employer had continued to pay for those prescriptions for six years after the order was
entered.16
¶15 Here, the order was entered on December 20, 2013, and by the time the hearing
occurred on Loyd’s request for continuing
medical maintenance on March 24, 2014,
Employer had already ceased paying for
Loyd’s doctor visits to Dr. Moorad and Dr.
Kaplan and stopped paying for the prescriptions prescribed by those doctors.17 Employer
in this case clearly interpreted the trial court’s
order to not include continuing medical maintenance in the form of continued prescription
costs and doctor visits.
¶16 Finally, although Loyd’s failure to request
continuing medical maintenance at the hearing
on permanent partial disability precludes the
application of Armstrong, such also precludes
Employer’s res judicata defense. Under principles of res judicata, or claim preclusion, “a
final judgment on the merits of an action precludes the parties from relitigating not only the
adjudicated claim, but also any theories or
issues that were actually decided, or could have
been decided, in that action.” Miller v. Miller,
1998 OK 24, ¶ 23, 956 P.2d 887, 896 (emphasis
928
added). The Employer has the burden to show
the issue to be precluded was actually litigated
or decided. Okla. Nat. Gas, Inc. v. Messer, 2011
OK CIV APP 20, ¶ 19, 249 P.3d 99, 104. Employer has specifically admitted that Loyd did not
ask for continuing medical maintenance at the
hearing on permanent partial disability in
November of 2013. Thus, we conclude that
Employer has failed to meet its burden to show
the issue of continuing medical maintenance
was actually litigated at the November 2013
hearing.
¶17 Because Loyd did not request reservation of continuing medical maintenance and
the trial court’s order awarding permanent
partial disability did not address or reserve the
issue of continuing medical maintenance, and
the award became final after Loyd did not
appeal, as in Pitchford, Loyd’s only recourse is
to seek continuing medical maintenance
through a reopening proceeding under § 28.18
¶18 This Court has long held that “[t]he
Workers’ Compensation Court has exclusive
original jurisdiction over all proceedings for
compensation which is legally due for an onthe-job injury. This statutory cognizance includes
all conceivable § 28 proceedings. The trial tribunal’s power to reopen a claim over which it
already has acquired jurisdiction cannot be drawn
into question.”19 Thus, the trial court’s conclusion that it lacked the jurisdictional power to
hear Loyd’s request was error. On remand, the
trial court is directed to treat Loyd’s request for
continuing medical maintenance as a reopening claim under 85 O.S. 2001 § 28.20
Conclusion
¶19 We hold that Loyd may seek to commute
his permanent partial disability award after the
hearing on permanent partial disability under
85 O.S. 2001 § 41(A). On remand, the court
shall determine whether Loyd has shown good
cause, entitling him to have a portion of his
permanent partial disability award commuted
to a lump-sum payment. Additionally, because
Loyd did not request reservation of continuing
medical maintenance and the trial court’s order
awarding permanent partial disability did not
address or reserve the issue of continuing
medical maintenance, we hold that Loyd’s
only recourse was to seek continuing medical
maintenance through a reopening proceeding
under 85 O.S. 2001 § 28. On remand, the trial
court is directed to treat Loyd’s request for continuing medical maintenance as a § 28 reopen-
Vol. 87 — No. 13 — 5/14/2016
ing claim and permit the introduction of additional medical and testimonial evidence.
EXISTING CLAIMS’ ORDER VACATED;
CAUSE REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS
Edmondson, Gurich, JJ., concur.
¶21 Winchester, Taylor, JJ., dissent.
¶22 Colbert, J., not participating.
GURICH, J.
2. Loyd attempted to report the injury to his Employer on that
same day. However, soon after the incident on November 20, 2009, he
was called into his supervisor’s office to discuss the incident that
occurred on November 10, 2009. Loyd was again called into his supervisor’s office on November 23, 2009, and was terminated for the incident occurring on November 10, 2009. It appears from the record, that
Loyd reported the later injury of November 20, 2009, to his Employer
soon after he was terminated. Transcript of Proceedings at 17-21 (May
20, 2010).
4. We note that Loyd’s original claim was filed in the Workers’
Compensation Court. However, by the time the trial court issued the
order now on appeal on March 25, 2014, the Workers’ Compensation
Court had been renamed the Workers’ Compensation Court of Existing Claims pursuant to 85A O.S. Supp. 2013 § 400.
5. 85 O.S. 2001 § 41(A) (emphasis added).
6. 85 O.S. 2001 § 41(A) (emphasis added).
7. 85 O.S. 2001 § 41(A).
8. Respondent’s Answer Brief at 7.
9. Brief of Petitioner at 5.
10. Pitchford, 2000 OK 12, ¶ 5, 996 P.2d at 936-37 (quoting Bill
Hodges Trucking Co. v. Gillum, 1989 OK 86, 774 P.2d 1063).
In Gillum, the Claimant was awarded permanent total disability
benefits after suffering two heart attacks while on the job. The order
awarding permanent total disability benefits included a clause requiring the employer to pay “’all reasonable and necessary medical
expenses incurred by claimant as a result of said injury.’” Id., ¶ 2, 774
P.2d at 1064. The order became final after neither party appealed.
Approximately three years later, the claimant filed a Form 9 seeking
approval of a heart transplant, arguing that such transplant constituted
a “reasonable and necessary expense” under the court’s previous permanent total disability order. The Court held that the order awarding
permanent total disability benefits to the claimant could not “serve as
authority for medical treatment beyond its date. The worker’s postaward quest for additional medical care . . . [was] in law but a § 28
reopening claim, which must be based on a changed condition that
necessitates heart transplant surgery. . . . The worker was required to
establish an after-occurring (postaward) need for the requested medical
procedure.” Id., ¶ 7, 774 P.2d at 1066.
11. Pitchford, 2000 OK 12, ¶ 6, 996 P.2d at 937.
12. Id., ¶ 7-8, 996 P.2d at 937 (citing Orrick Stone Co. v. Jeffries, 1971
OK 116, 488 P.2d 1243; Depue v. Barsh Truck Lines, 1972 OK 5, 493 P.2d
80; City of Frederick v. Elmore, 1978 OK 160, 587 P.2d 1365; Zebco
Motorguide v. Briggs, 1994 OK CIV APP 60, 881 P.2d 103).
13. Id., ¶ 9, 996 P.2d at 937.
14. Id.
15. Armstrong, 2002 OK 17, ¶¶ 2-3, 43 P.3d at 384.
16. Id., ¶ 11, 43 P.3d at 385-86.
17. Transcript of Proceedings at 6-7 (Mar. 24, 2014). Loyd testified
at the hearing on March 24, 2014, that Dr. Moorad informed him sometime in February of 2014 that Employer was no longer paying for
Loyd’s visits, so he would no longer be able to treat him. Id.
18. See 85 O.S. 2001 § 28.
19. Gillum, 1989 OK 86, ¶ 10, 774 P.2d at 1067 (citing 85 O.S. 1981 §
28).
20. See Id., ¶ 19, 774 P.2d at 1069.
Vol. 87 — No. 13 — 5/14/2016
2016 OK 47
JACQUELYN TESS MURLIN, Plaintiff/
Appellee, v. JIMMY LEE DIAL PEARMAN,
JR., Defendant/Appellant.
No. 113,193. April 26, 2016
CERTIORARI TO COURT OF CIVIL
APPEALS, DIVISION II
Honorable Jequita Napoli, Trial Judge
¶0 The Plaintiff/Appellee, Jacquelyn Tess
Murlin (Tess), filed a petition for a victim
protection order (VPO) against her exboyfriend, the Defendant/Appellant, Jimmy Lee Dial Pearman, Jr. (Pearman). After
text messages between the alleged victim
and Pearman’s ex-wife, Theresa Marie
Pearman (Theresa) revealed that the VPO
filing was a collaboration between Tess and
Theresa to obtain custody in a child custody
dispute against Pearman, Tess withdrew the
petition. Pearman sought to have the VPO
filing declared frivolous, and to recover
attorney fees and costs, pursuant to 22 O.S.
Supp. 2013 §60.2. The trial judge denied his
request. The Court of Civil Appeals affirmed.
We hold that, pursuant to 22 O. S. 2013 §60.2,
the matter was frivolously filed and victimless, and that attorney fees and costs should
have been awarded.
VACATED; TRIAL COURT REVERSED
AND REMANDED WITH INSTRUCTIONS
TO AWARD ATTORNEY FEES AND
COSTS.
Jeffrey D. Nachimson, Oklahoma City, Oklahoma, for Plaintiff/Appellee.
Christian M. Zeaman, Edmond, Oklahoma, for
Defendant/Appellant.
KAUGER, J.
¶1 The dispositive questions before this court
are whether the plaintiff’s petition for protective order, filed pursuant to 22 O.S. Supp. 2013
§60.2,1 was frivolous and victimless, and
whether attorney fees and costs should have
been awarded. We hold that the matter was
frivolously filed and victimless, and that attorney fees and costs should have been awarded.
FACTS
¶2 Jimmy Lee Pearman, Jr. and Theresa
Marie Pearman filed for divorce on July 9,
2012, in the District Court of Cleveland County,
929
Oklahoma. The decree dissolving the marriage
was memorialized on June 24, 2013, however,
the parties continued their litigation over matters of child custody and support of their two
children. On September 12, 2014, Pearman was
awarded exclusive custody of the children and
Theresa was granted standard visitation.
¶3 The record reflects that Theresa met Tess,
a 22 year-old college student, in early 2012,
while getting a facial at a salon. The two
women became friends. Theresa introduced
Tess to Pearman when he helped Theresa after
her car had broken down. Tess and Pearman
began dating by mid-July of 2013. Tess
described their relationship as one of “exclusively dating” beginning in August of 2013.
According to her, this relationship caused a
serious rupture in her relationship with Theresa. Text messages reflect that she had “been”
with both of them. Tess and Theresa had an
altercation over Tess’s relationship with Pearman that was so violent that the police were
called. The incident occurred in front of the
children, while Tess was living with Theresa
and dating Pearman.
¶4 On April 29, 2014, another event occurred
at Pearman’s home which is the nucleus of this
appeal. The course of the evening has been
described in very different terms by Pearman
and Tess, although there is no testimony by
him in the record. According to Tess, she was
dropped off at his home by a friend after a
night of drinking. The record reflects that Tess
had a DUI, and a history with alcohol abuse.
¶5 According to Tess, she went into the home
using a garage door opener Pearman had
given her, unlocked the security system, took
off her clothes except for a t-shirt and underwear, and went to sleep in one of the children’s
rooms. When she woke up, she went to his
locked bedroom, unlocked the door with a
screwdriver and walked in on him and another
woman, Taylor. She says they exchanged
words, that he attacked her, pushed her into
the wall, shoved her face into the front door
and punched her in the eye. After the incident,
she stayed in his house until he took her home
the next morning. The next day, she went to the
Moore, Oklahoma police station and filed a
report.
¶6 Text messages from Tess, and Theresa, as
well as testimony from both the child custody
case and this cause, suggest a different story.
According to testimony and text messages,
930
Tess was drinking in Edmond on the night in
question. Throughout the entire evening she
was texting Pearman, calling him over and
over, wanting to come over, until it reached the
point where he threatened to block her number
if she did not stop. She admitted that she was
intoxicated and that he never agreed for her to
come to his house. According to Taylor, she and
Pearman arrived at his home to find the garage
open, all the lights on, a half empty bottle of
vodka on the counter with a soda next to it, and
Tess passed out naked in Pearman’s bed.
¶7 Pearman and Taylor moved her into
another bedroom to let her “sleep it off.” However, she came into Pearman’s bedroom twice
during the night and he walked her back to
the other bedroom. The third time she picked
the locked door with a screwdriver, jumped
on the bed, and started calling Taylor names.
Tess followed Taylor into the kitchen, threw
an unopened soda can at her head and then
charged her. Taylor punched Tess in the face
in self defense. At the trial she testified that
Pearman did not hit Tess.
¶8 The record contains an extensive series of
text messages between Tess and Theresa, beginning on May 3, 2014, just four days after the
alleged attack in Pearman’s home. Tess filed a
police report complaining about his alleged
assault which is not included in the record. A
text message sent by Tess to Theresa states that
she would not have filed a police report if it
were not for the ongoing custody fight. The
record does not indicate that criminal charges
were ever actually filed against Pearman.
¶9 The messages imply that Theresa directed
Tess to file the police report in Cleveland
County, the site of the custody appeal. The
messages also show that Theresa spoke with
her attorney in her custody case about the filing of the Petition for Protective Order/VPO.
Theresa advised Tess that the key points in filing the petition for VPO were Pearman’s felony
record, previous acts of domestic violence, possession of an illegal weapon and her fear. Several of the texts referenced the police report
that she filed, noting that she was very intoxicated, and that she did not fully remember the
incident.
¶10 The texts indicate that Tess and Theresa
had rekindled their friendship with a shared
goal of assisting Theresa in her custody battle
against Pearman through the filing of a peti-
Vol. 87 — No. 13 — 5/14/2016
tion for VPO. Examples of some of the messages include:
[From Tess to Theresa]
“Just trying to help you. If I’m not creating
anything but trouble, then it’s you-all’s
thing and had no affect on me. Just trying
to help you Theresa Marie.”
[From Theresa to Tess]
“Custody will not include you at this point.
I don’t want to call you as a witness, which
is why I need the VPO.”
Other texts show that: 1) Theresa believed that
filing the VPO would be good for the custody
case and that it would be good for Theresa and
her girls; and 2) the VPO would be a huge
break for Theresa.
¶11 On May 5, 2014, Tess filed a petition for
a protective order in the District Court of
Cleveland County against Pearman. She alleged that: 1) she was physically assaulted at
his residence on April 29, 2014; 2) she had filed
a police report with the Moore Police Department regarding the assault; 3) Pearman was a
felon because of possession of an illegal firearm; and 4) he had a violent past with previous
domestic abuse.
¶12 The hearing on Tess’s VPO was held on
May 19, 2014. At the hearing, Theresa’s attorney also represented Tess without charge. Most
of the hearing concerned many text messages
between Theresa and Tess regarding the VPO
and their friendship and sex lives. Because of
concerns about attorney-client privilege, the
text messages were examined by both attorneys during a recess. Pearman’s attorney used
the text messages to establish the motive for
filing VPO as merely an attempt to affect the
ex-wife’s child custody case. The court recessed
so that the lawyers could review the text messages together. After recess and review of the
messages, the attorney for Tess stated that:
You know, we could go and have a full
hearing and you can decide whether a protective order is warranted. But the bottom
line is there were texts from my client
admitting, look, this happened, so on and
so forth, but if it weren’t for your custody
case and your kids, I wouldn’t even bother
with a VPO.
So, you know, with that in mind, regardless, it shows that, hey, I don’t need a proVol. 87 — No. 13 — 5/14/2016
tective order. So I advised my client to dismiss and that’s what we’re going to ask the
Court for.
¶13 Subsequently, the trial court granted the
motion to withdraw and dismissed the case.
When asked to determine the matter frivolous
and award attorney fees and costs, the trial
court, remarked that, while the whole matter
was a soap opera, embarrassing, and absurd,
the ex-husband did not show that it was frivolously filed. Consequently, the trial court
refused to award attorney fees and costs. A
journal entry was filed on July 18, 2014.
¶14 Theresa and Tess arrived together for the
May 21, 2014, custody hearing. During the
hearing, Tess was called to testify and she
claimed that she had not filed the VPO so that
it could be used in the custody matter. However, she also testified that she wanted to dismiss the VPO and Theresa did not want her to
do so because it would be detrimental to Pearman in the custody case. She also testified that
she had contacted Pearman on multiple occasions after the April 29th incident because she
still loved him.
¶15 On July 18, 2014, Pearman filed a motion
for new trial or a motion to vacate judgment of
the decision by the trial court, or in the alternative a finding that Tess’s actions were frivolous
and award attorney fees and costs to him. The
motion for new trial was granted, and a hearing was held on August 18, 2014. At the hearing, Pearman’s attorney argued that there was
a conspiracy between the two women.
¶16 After the hearing, the trial court held
that, although the evidence was conflicting,
there was a failure to show that the filing for a
protective order was frivolous or in bad faith
and victimless, indicating that a finding of each
was required in order to award attorney fees
and costs. No costs or attorney fees were
assessed against Tess. We granted certiorari to
address whether the filing was frivolous, and
victimless, and whether attorney fees and costs
should have been awarded pursuant to 22 O.S.
2013 §60.2.2
STANDARD OF REVIEW
¶17 In Curry v. Streater, 2009 OK 5, ¶8, 213
P.3d 550, we addressed the first impression
question of the proper standard of review of a
protective order. We analogized a protective
order, under the Protection from Domestic
Abuse Act, 22 O.S. 2001 §§60-60.20 et seq., in
931
the same manner as an injunction.3 The standard of review for the grant or denial of an
injunction is whether there was an abuse of
discretion by the trial judge.4 Under an abuse
of discretion standard, the appellate court examines the evidence in the record and reverses only
if the trial court’s decision is clearly against the
evidence or is contrary to a governing principle
of law.5 To reverse under an abuse of discretion
standard, an appellate court must find the trial
court’s conclusions and judgment were clearly
erroneous, against reason and evidence.6
PURSUANT TO 22 O.S. § 60.2 THE
MATTER WAS FRIVOLOUSLY FILED AND
VICTIMLESS, AND ATTORNEY FEES AND
COSTS SHOULD HAVE BEEN AWARDED.
¶18 Tess argues that nothing in the record
indicates that the purpose for filing the VPO
was for Theresa to gain an advantage in the
custody case and that the trial court acted
within its discretion in refusing to award costs
and attorney fees against her. Pearman argues
that repercussions should be administered for
misuse of VPOs and that the statute provides
the remedy of awarding attorney fees and
assessing costs, but the trial court neglected to
apply this remedy.
¶19 Title 22 O.S. Supp. 1982 §60.2 is part of an
Act known as the Protection from Domestic
Abuse Act (the Act) and it was codified in
1982.7 At the time of codification the statutory
provisions of 22 O.S. Supp. 1982 §60.2 did not
require filing fees, but it did provide for the
assessment of attorney fees to either party.8
One obvious purpose of the statute was to
encourage victims to pursue their legal remedies in court without regard to economic means
for filing fees, yet to discourage unnecessary or
frivolous filings by allowing the award of
attorney fees and costs against either party.
¶20 In 2000, the statute added the term “victim” to provide “victims” of domestic abuse
the opportunity for protection,9 but nowhere in
the Act was the term “victim” or frivolous
defined.10 The current provisions of 22 O.S.
2013 §60.2, provide that when a protective
order has been filed frivolously and no victim
exists, the court may assess attorney fees and
court costs against the plaintiff.11 The Act still
did not define “victim” or “frivolous.” When a
statute does not define a word or words contained therein, the courts will interpret the
words in their common, ordinary sense.12 The
term victim is generally defined as a person
harmed by a crime, tort, or other wrong.13
932
Whenever the meaning of a word or phrase
is defined in any statute, such definition is
applicable to the same word or phrase whenever it occurs, except where a contrary intention plainly appears.14 Another definition of
victim is found in provisions of 21 O.S. 2011 §
142.3, the Crime Victims Compensation Act as:
a person who suffers personal injury or
death as a result of criminally injurious
conduct. . . .
¶21 There was no evidence of stalking,
harassment, or rape and even if Tess did sustain physical injuries, the record is disparate as
to who caused any injuries that she sustained.
Nevertheless, the weight of the evidence in the
record regarding the purpose and/or reason
she filed the petition for the VPO against Pearman shows that it was to help Theresa in her
custody battle, not to actually seek protection
from Pearman. Furthermore, it appears that no
court ever ruled on who caused the alleged
injuries. Criminal charges were not pursued
against Pearman or anyone else as a result of
this incident.
¶22 No protective order issued. Rather, Tess
withdrew the application and the court granted the request, with her attorney stating that
her texts indicated that if it were not for Theresa’s custody case, she would not have filed a
petition for protective order. He also characterizes her request to withdraw the petition as a
tacit statement that she did not need the protective order.
¶23 Because Tess was not legally determined
to be Pearman’s victim, and she withdrew her
petition for protective order under the factual
circumstances in this cause, the trial court
could not have reached any other conclusion
but to determine the cause victimless. The
other provisions of the civil pleading code, 12
O.S. 2011 §2011.1 specifically defines frivolous
as “the claim or defense was knowingly asserted in bad faith or without any rational argument based in law or facts to support the position of the litigant or to change existing law.”
¶24 The statements by Tess in the text messages and the statement of her attorney in
withdrawing the petition for protective order
clearly show that she did not seek the petition
for protective order to save herself from bodily
injury at the hands of Pearman, but rather to
assist his former wife in her custody case. The
trial court’s determination that the proceeding
was not frivolous was clearly against the weight
of the evidence and an abuse of direction.
Vol. 87 — No. 13 — 5/14/2016
¶25 The trial court also refused to award
attorney fees and costs against Tess for seeking
a frivolous and victimless protective order.
Because the obvious purpose of the attorney
fee and costs provisions in 22 O.S. 2011 §60.2 is
to preclude the filing of frivolous and victimless applications, the trial court also abused its
discretion in neglecting to award costs and
attorney fees under the facts of this cause.
CONCLUSION
¶26 The clear weight of the evidence was
that the petition for protective order was filed
for the purpose of harming Pearman in his custody litigation with his former wife. The trial
court abused its discretion in failing to find
that the filing by Tess was frivolous. Because
the petition for protective order was withdrawn, the matter, pursuant to 22 O. S. 2013 §
60.2, had no victim as a matter of law. Because
this cause was both frivolous and victimless,
the trial court should have awarded attorney
fees and costs against Tess.
¶27 We recognize the importance of a VPO
and that its purpose is obviously aimed at
helping to stop violent and harassing behavior
and to protect a person or their family from the
person causing harm. The Legislature also recognizes this purpose by waiving filing fees so
that anyone who feels threatened can legally
pursue a VPO without regard to monetary
resources. At the same time, VPOs are not to be
used to harass or for other reason than their
intended purpose. The Legislature also recognizes this by allowing court costs and attorney
fees to be recovered by either party in the event
the VPO was sought for an unsavory or frivolous purpose. Under the facts of this cause, the
purpose of helping to stop violent and harassing behavior was not the purpose for which
this VPO was primarily sought. Accordingly,
the cause is reversed and remanded to the trial
court to make that award and determine the
appropriate amount of attorney fees, court
costs and filing fees to award.
VACATED; TRIAL COURT REVERSED
AND REMANDED WITH INSTRUCTIONS
TO AWARD ATTORNEY FEES AND
COSTS.
REIF, C.J. COMBS, V.C.J., KAUGER, WATT,
COLBERT, GURICH, JJ., concur.
TAYLOR, J., concurs in result.
Vol. 87 — No. 13 — 5/14/2016
WINCHESTER, EDMONDSON, JJ., dissent.
KAUGER, J.
1. Title 22 O.S. Supp. 2013 §60.2 provides in pertinent part:
A. A victim of domestic abuse, a victim of stalking, a victim of
harassment, a victim of rape, any adult or emancipated minor
household member on behalf of any other family or household
member who is a minor or incompetent, or any minor age sixteen (16) or seventeen (17) years may seek relief under the provisions of the Protection from Domestic Abuse Act. . . .
C. 1. Except as otherwise provided by this section, no filing fee,
service of process fee, attorney fees or any other fee or costs shall
be charged the plaintiff or victim at any time for filing a petition
for a protective order whether a protective order is granted or
not granted. The court may assess court costs, service of process
fees, attorney fees, other fees and filing fees against the defendant at the hearing on the petition, if a protective order is granted against the defendant; provided, the court shall have authority to waive the costs and fees if the court finds that the party
does not have the ability to pay the costs and fees.
2. If the court makes specific findings that a petition for a protective order has been filed frivolously and no victim exists, the court
may assess attorney fees and court costs against the plaintiff….
F. A court may not require the victim to seek legal sanctions
against the defendant including, but not limited to, divorce,
separation, paternity or criminal proceedings prior to hearing a
petition for protective order.
2. Title 22 O.S. 2013 §60.2, see note 1, supra.
3. Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550.
4. Scott v. Oklahoma Secondary Sch. Activities Ass’n, 2013 OK 84,
¶16, 313 P.3d 891; Curry v. Streater, see note 3, supra; Johnson v. Ward,
1975 OK 129, ¶42, 541 P.2d 182, 188.
5. Curry v. Streater, see note 3, supra; State ex rel. Tal v. Oklahoma
City, 2002 OK 97, ¶3, 61 P.3d 234, 240; Abel v. Tisdale, 1980 OK 161, ¶
29, 619 P.2d 608.
6. Curry v. Streater, see note 3, supra; Parsons v. Volkswagen of
Am., Inc., 2014 OK 111, ¶9, 341 P.3d 662; Oklahoma Tpk. Auth. v. Little,
1993 OK 116, ¶6, 860 P.2d 226, 228.
7. Title 22 O.S. 2011 §§60-60.20.
8. Title 22 O.S. Supp. 1982 §60.2 provides in pertinent part:
. . .c. No filing fee shall be charged the plaintiff at the time the
petition is filed. The court may assess court costs and filing fees
to either party at the hearing on the petition.
9. Title 22 O.S. Supp. 2000 §60.2; Okla. Ag. Opin. No. 04-4.
10. Other definitions are found at 22 O.S. 2011 §60.1 where such
terms as domestic abuse, stalking, harassment, dating relationship and
victim support person are defined. However, the term “victim” is not
defined.
11. Title 22 O.S. 2013 §60.2, see note 1, supra.
12. American First Abstract Co. v. Western Information Systems,
Inc., 1987 OK 24, ¶5, 735 P.2d 1187; Loffland Bros. Equipment v. White,
1984 OK 69, ¶7, 689 P.2d 311.
13. Black ‘s Law Dictionary (10th ed. 2014).
14. Oliver v. City of Tulsa, 1982 OK 121, ¶18, 654 P.2d 607.
2016 OK 48
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. GEORGE MICHAEL
LEWIS, Respondent.
SCBD No. 6384. May 2, 2016
ORDER APPROVING RESIGNATION
FROM OKLAHOMA BAR ASSOCIATION
PENDING DISCIPLINARY PROCEEDINGS
¶1 On April 25, 2016, George Michael Lewis’s affidavit regarding his resignation pending
disciplinary proceedings was filed with this
Court. See Rule 8.1, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, ch. 1, app.
933
1-A. Lewis requests that he be allowed to
resign his membership in the Oklahoma Bar
Association (OBA) and relinquish his right to
practice law in Oklahoma pending disciplinary
proceedings. The OBA filed its application for
an order approving the resignation.
¶2 In the affidavit, Lewis acknowledges that
the OBA has opened grievance DC 16-054
against him and that the grievance alleges that
he committed criminal acts involving sexual
abuse of his minor daughter and such acts
reflect adversely on his honesty, trustworthiness or fitness as a lawyer. He states that he is
aware, if proven, the acts constitute violations
of Rule 8.4(b) of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch. 1, app. 3-A, and
Rule 1.3 of the RGDP.
¶3 This Court finds that Lewis has complied
with the requirements of Rule 8.1 of the RGDP.
Consistent with Rule 8.1’s requirements, Lewis’s affidavit reflects that his tendered resignation is freely and voluntarily rendered, that he is
not subject to coercion or duress, that he is aware
of the consequences of submitting the resignation, and that he is waiving his rights to contest
the allegations in the pending grievance.
¶4 Lewis acknowledges that he may not
make application for reinstatement for five
years after the effective date of this order and
that he must comply with Rule 11 of the RGDP
when seeking reinstatement. Lewis agrees to
reimburse the Client Security Fund for claims
approved and paid, together with statutory
interest, as a result of these proceedings and
before seeking reinstatement.
¶5 Lewis avers that he cannot locate his OBA
membership card, but, if he does locate it, he
will submit it to the OBA’s General Counsel.
Lewis has consulted legal counsel “regarding
the matters contained within the affidavit.”
The OBA states that it has not incurred any
costs related to these proceedings.
¶6 This Court finds that Lewis’s resignation
complies with the requirements set forth in
Rule 8.1 of the RGDP and should be approved.
Therefore, it is ordered that George Michael
Lewis’s name be stricken from the roll of attorneys. Because resignation pending discipline is
tantamount to disbarment, Lewis may not
make an application for reinstatement prior to
the expiration of five years from the date this
order becomes final. Rules 8.1(c), 8.2, RGDP.
Further, Lewis shall reimburse the Client Security Fund any amounts paid out as a result of
934
these proceedings before seeking reinstatement. Rule 11.1(b), RGDP. Pursuant to Rule 9.1
of the RGDP, Lewis shall notify all of his clients, if any, having legal business pending with
him within 20 days, by certified mail, of his
inability to represent them and of the necessity
for promptly retaining new counsel.
¶7 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE this 2nd day of
May 2016.
/s/ John F. Reif
CHIEF JUSTICE
Concur: Reif, C.J.; Combs, V.C.J.; and Kauger,
Watt, Winchester, Edmondson, Taylor, and Colbert, JJ.
Not Participating: Gurich, J.
2016 OK 49
REVOCATION OF CERTIFICATES OF
CERTIFIED SHORTHAND REPORTERS
SCAD-2016-36. May 2, 2016
ORDER
On February 15, 2016, this Court suspended
the certificates of several certified shorthand
reporters for failure to comply with the continuing education requirements for calendar
year 2015 and/or with the annual certificate
renewal requirements for 2016. See 2016 OK 21
(SCAD 2016-13).
The Oklahoma Board of Examiners of Certified Shorthand Reporters has advised that the
court reporters listed below continue to be
delinquent in complying with the continuing
education and/or annual certificate renewal
requirements, and the Board has recommended
to the Supreme Court of the State of Oklahoma
the revocation of the certificate of each of these
reporters, effective April 15, 2016, pursuant to 20
O.S., Chapter 20, App. 1, Rules 20 and 23.
IT IS THEREFORE ORDERED that the certificate of each of the certified shorthand reporters named below is hereby revoked effective
April 15, 2016.
Christina Ogle
Norma Rico
Lisa Stockwell
Nikki Tate
Amy Taylor
CSR # 1088
CSR # 1992
CSR # 1969
CSR # 1608
CSR # 1993
Vol. 87 — No. 13 — 5/14/2016
DONE BY ORDER OF THE SUPREME
MAY, 2016.
ORIGINAL PROCEEDING TO DETERMINE THE VALIDITY OF INITIATIVE
PETITION NO. 409
/s/ John F. Reif
CHIEF JUSTICE
¶0 This is an original proceeding to determine the legal sufficiency of Initiative Petition
No. 409. The petition seeks to amend the Oklahoma Constitution by repealing Article 28 and
adopting Article 28A. Article 28A would allow
wine to be sold in grocery stores. Opponents
filed this protest alleging the petition unconstitutionally delegates legislative authority. Opponents also allege the gist of the petition is
insufficient and misleading. Upon review, we
hold that the gist of the petition does not fairly
describe the proposed constitutional amendment and is invalid.
ALL JUSTICES CONCUR.
2016 OK 50
REINSTATEMENT OF CERTIFICATES OF
CERTIFIED SHORTHAND REPORTERS
SCAD-2016-37. May 2, 2016
ORDER
The Oklahoma Board of Examiners of Certified Shorthand Reporters has recommended to
the Supreme Court of the State of Oklahoma
that the certificate of each of the Oklahoma
Certified Shorthand Court Reporters named
below be reinstated as these reporters have
complied with the continuing education requirements for calendar year 2015 and/or with
the annual certificate renewal requirements for
2016, and have paid all applicable penalty fees.
IT IS HEREBY ORDERED that, pursuant to
20 O.S., Chapter 20, App. 1, Rules 20 and 23,
the certificates of the following court reporters
are reinstated from the suspension earlier imposed by this Court:
Name & CSR #
Effective Date
of Reinstatement
Lori Byrd,
CSR #1981
April 15, 2016
Renatta Thompson,
CSR #606
April 13, 2016
DONE BY ORDER OF THE SUPREME
May, 2016.
/s/ John F. Reif
CHIEF JUSTICE
ALL JUSTICES CONCUR.
2016 OK 51
IN RE INITIATIVE PETITION NO. 409,
STATE QUESTION NO. 785, OKLAHOMA
GROCERS ASSOCIATION and RON EDGMON, Petitioners, v. RETAIL LIQUOR
ASSOCIATION OF OKLAHOMA and
BRYAN KERR, Respondents.
Case No. 114,792. May 3, 2016
Vol. 87 — No. 13 — 5/14/2016
INITIATIVE PETITION NO. 409, STATE
QUESTION NO. 785, IS DECLARED
INVALID AND ORDERED STRICKEN
FROM THE BALLOT
V. Glenn Coffee, Denise Davick, Glenn Coffee
& Associates, PLLC, Oklahoma City, OK, for
Petitioners
Ann G. Richards-Farinha, Hartsfield & Egbert,
PLLC, Oklahoma City, OK, for Respondents
Randy J. Malone, Oklahoma City, OK, for
Respondents
GURICH, J.
¶1 On February 23, 2016, Respondents Retail
Liquor Association of Oklahoma and Bryan
Kerr (Proponents) filed Initiative Petition No.
409 with the Oklahoma Secretary of State. The
petition seeks to amend the Oklahoma Constitution by repealing Article 28 and adopting
Article 28A. In short, the proposed Article 28A
would allow wine to be sold in grocery stores.
Grocery stores would be limited to only one
Retail Grocery Wine Store license. Grocery
stores with multiple locations could procure
up to three more licenses by purchasing qualified Retail Package Store licenses from a retail
package store for conversion to a Retail Grocery Wine Store license. Under the proposed
Article 28A, retail package stores could now
sell any and all items that are sold in convenience stores and grocery stores. Small brewers
could sell their products at a brewery or festival or trade show and could sell alcoholic beverages by the drink at a restaurant co-located
on the premises of the brewery. On March 11,
2016, Petitioners Oklahoma Grocers Association and Ron Edgmon (Opponents) timely
filed an Application to Assume Original Juris-
935
diction in this Court protesting: 1) the constitutionality of the petition; and 2) the statutory
sufficiency of the gist of the petition.
¶2 “’The first power reserved by the people
is the initiative . . . .’ With that, comes ‘the
power to propose laws and amendments to the
Constitution and to enact or reject the same at
the polls independent of the Legislature, and
also reserve power at their own option to
approve or reject at the polls any act of the Legislature.’” In re Initiative Petition No. 403, 2016
OK 1, ¶ 3, 367 P.3d 472, 474 (citing Okla. Const.
Art. 5, § 1). “While this fundamental and precious right is zealously protected by this Court,
it is not absolute. Any citizen can protest the
sufficiency and legality of an initiative petition.” In re Initiative Petition No. 384, 2007 OK
48, ¶ 2, 164 P.3d 125 (internal citation omitted).
When a protest is filed in this Court, we are
“vested with original jurisdiction to evaluate
and determine the sufficiency of the proposed
initiative petition pursuant to 34 O.S. Supp.
2015 § 8.” In re Initiative Petition No. 403, 2016
OK 1, ¶ 3, 367 P.3d at 474.
¶3 The procedures for presenting an initiative petition are outlined in 34 O.S. Supp. 2015
§§ 1-27. Section 3 of Title 34 provides in part:
“A simple statement of the gist of the proposition shall be printed on the top margin of each
signature sheet.”1 This Court has long held that
the purpose of the gist, along with the ballot
title, is to “prevent fraud, deceit, or corruption in
the initiative process.”2 The gist “’should be
sufficient that the signatories are at least put on
notice of the changes being made,’” and the
gist must explain the proposal’s effect.3 The
explanation of the effect on existing law “does
not extend to describing policy arguments for
or against the proposal.”4 The gist “need only
convey the practical, not the theoretical, effect
of the proposed legislation,” and it is “’not
required to contain every regulatory detail so
long as its outline is not incorrect.’”5 “We will
approve the text of a challenged gist if it is ‘free
from the taint of misleading terms or deceitful
language.’”6
¶4 From 1985 until 2015,7 the “pamphlet”
circulated to potential signatories included an
exact copy of the ballot title, the text of the
measure itself, and signature sheets, which
included the gist of the measure on each signature page.8 “[B]oth the gist and the ballot title
work[ed] together to prevent fraud in the initiative process.”9 However, as we noted in In re
Initiative Petition No. 403, 2016 OK 1, 367 P.3d
936
472, pursuant to the amendments to Title 34
effective April 28, 2015, the ballot title is now to
be filed separately from the petition and is no
longer “part of or printed on the petition.”10
Thus, the more-detailed ballot title is no longer
circulated to potential signatories as part of the
pamphlet, and the gist is now the only shorthand explanation of the proposal’s effect. The
gist alone must now work to prevent fraud, corruption, and deceit in the initiative process.11
¶5 In the petition we consider today, the gist
provides:
This measure amends the entirety of Article XXVIII of the Oklahoma Constitution,
as an amendment by Article repealing
Article XXVIII and adopting Article XXVIIIA. It provides equal opportunity guarantees for Oklahoma businesses. It permits
licensees that currently hold licenses to sell
low-point beer to sell all beer and malt beverages regardless of percent alcohol by
volume. It allows certain business entities,
including grocery stores, to qualify for a
license to sell wine for off-premises consumption. It allows small brewers as
defined by law to sell their products at a
brewery or festival or trade show and
allows them to sell alcoholic beverage by
the drink at a restaurant co-located on the
premises of the brewery. It provides that all
employees who handle or sell alcoholic
beverages must obtain an employee license
from the Alcoholic Beverage Laws Enforcement (ABLE) Commission. It permits Retail
Package Store licensees to sell any and all
items that are sold in convenience and grocery stores. It permits Retail Package Stores
to offer services associated with the promotion of or education in their products. It
permits Retail Package Store licensees and
Retail Wine Grocery Store licensees to sell
their products on any day of the year
except for Thanksgiving Day and Christmas Day. It eliminates the prohibition of
advertising of alcoholic beverages. It provides funding for the Department of Mental Health for treatment and prevention of
mental health disease. The Amendments
take effect on July 1, 2017.12
¶6 The petition makes significant changes to
the liquor laws of this state; however, certain
changes are recognizably absent from the gist.
Pursuant to the petition, no Retail Package
Store license or Retail Grocery Wine Store
license can be issued to any grocery store,
Vol. 87 — No. 13 — 5/14/2016
warehouse club, or supercenter located within
2,500 feet of an existing Retail Package Store or
Retail Grocery Wine Store, making many grocery stores ineligible for a Retail Grocery Wine
Store license.13 Only one Retail Grocery Wine
Store license will be issued by ABLE to entities
with multiple stores, again limiting a grocery
store’s eligibility for a Retail Grocery Wine
Store license.14 Finally, only Retail Package
Store licenses that have been in existence for
more than two years from the date the ABLE
Commission issues the first Retail Grocery
Wine Store license shall be eligible for purchase
for the purpose of converting to a Retail Grocery Wine Store license, again restricting the
number of grocery store wine retailers.15
¶7 The gist fails to alert potential signatories
of the changes being made to the law and does
not provide a potential signatory with sufficient information to make an informed decision about the true nature of the proposed
constitutional amendment. See In re Initiative
Petition No. 384, 2007 OK 48, ¶¶ 11-12, 164 P.3d
at 129-30. We hold that the gist of the petition
does not fairly describe the proposed constitutional amendment and is invalid. The gist is
not subject to amendment by this Court, and as
a result, the only remedy is to strike the petition from the ballot.16
INITIATIVE PETITION NO. 409, STATE
QUESTION NO. 785, IS DECLARED
INVALID AND ORDERED STRICKEN
FROM THE BALLOT
¶8 Combs, V.C.J., Kauger, Winchester,
Edmondson, Taylor (by separate writing), Colbert, Gurich, JJ., concur;
Taylor, J., with whom Kauger, J., joins, concurring:
The problem with this gist is exactly the
same problem that I pointed out in my dissent in In re Initiative Petition No. 403, 2016
OK 1, wherein I stated, “The gist is dead on
Vol. 87 — No. 13 — 5/14/2016
arrival. Along with the unconstitutionality
of Initiative Petition No. 403, the gist or
proposed ballot title deceives potential signatories and potential voters. I would send
Initiative Petition No. 403 back to the
Respondents as the gist does not satisfy the
statutory requirements set out by the Legislature.” The exact same problem exists in
this case and therefore I concur.
¶9 Reif, C.J., dissent.
¶10 Watt, J., not participating.
GURICH, J.
1. 34 O.S. 2011 § 3.
2. In re Initiative Petition No. 363, 1996 OK 122, ¶ 18, 927 P.2d 558,
567 (citing Cmty. Gas and Serv. Co. v. Walbaum, 1965 OK 118, 404 P.2d
1014).
3. In re Initiative Petition No. 384, 2007 OK 48, ¶ 7, 164 P.3d at 129
(quoting In re Initiative Petition No. 342, 1990 OK 776, 797 P.2d 331).
4. Id., ¶ 8, 164 P.3d at 129.
5. Id., ¶¶ 8-9, 164 P.3d at 129 (quoting In re Initiative Petition No.
363, 1996 OK 122, 927 P.2d 558).
6. Id., ¶ 9, 164 P.3d at 129 (quoting In re Initiative Petition No. 363,
1996 OK 122, 927 P.2d 558).
7. In 1985, the Legislature created the gist requirement. See 34 O.S.
Supp. 1985 § 3.
8. 34 O.S. 2011 § 2.
9. In re Initiative Petition No. 397, 2014 OK 23, ¶ 64, 326 P.3d 496,
518.
10. 34 O.S. Supp. 2015 § 8(A). Compare 34 O.S. Supp. 2015 § 2 (“Insert
here an exact copy of the text of the measure.”) with 34 O.S. 2011 § 2
(“Insert here an exact copy of the title and text of the measure.”).
Although the ballot title review process, and any challenge to
the ballot title, must now statutorily come after the circulation
period pursuant to § 8, the statute remains silent with regard to
when a challenge to the gist of the petition must be made. We
find that a pre-circulation challenge to the gist of the petition is
appropriate as the gist remains a necessary part of the pamphlet
circulated to potential signatories. We need not decide today
whether a post-circulation challenge to the gist of the petition
would also be appropriate as those are not the circumstances
before us in this case.
11. No changes were made to Section 3 — the gist requirement —
in the 2015 amendments to Title 34.
12. See Petitioners’ Appendix to Application to Assume Original
Jurisdiction.
13. Initiative Petition No. 409, § 10.
14. Initiative Petition No. 409, § 10.
15. Initiative Petition No. 409, § 10; § 12. Opponents’ argument that
all beer, including 3.2% beer, will now be taxed as alcohol, effectively
raising taxes on beer sold at grocery stores and convenience stores, is
speculation at this point. We decline to engage in speculation in our
consideration of the validity of the gist. See In re Initiative Petition No.
358, 1994 OK 27, ¶ 12, 870 P.2d 782, 787.
16. Because we conclude that the gist is legally insufficient, we
need not address Opponents’ constitutional arguments.
937
Court of Criminal Appeals Opinions
2016 OK CR 9
FACTS
BRUCE CONWAY STEWART, JR.,
Appellant, v. THE STATE OF OKLAHOMA,
Appellee.
¶4 On August 16, 2014, at approximately
11:45 p.m., Oklahoma Highway Patrol Trooper
Aaron Hunter observed Appellant make an
improper turn from U.S. Highway 183 onto
Gary Boulevard, in Clinton, Oklahoma. Appellant deviated from the direct course and travelled into the outside lane during his turn. The
windshield on the vehicle that Appellant was
driving was cracked in the critical area within
the span of the driver’s side windshield wiper
area. Trooper Hunter initiated his emergency
lights and stopped Appellant’s vehicle. As
Appellant exited the car, Hunter observed a
small package fall onto the pavement. Appellant
picked up the package and leaned back into the
car for several seconds. When Appellant finally
made his way back to Hunter’s patrol car, he
informed the Trooper that he did not have a
driver’s license because it was suspended.
Case No. F-2015-282. April 26, 2016
OPINION
LUMPKIN, VICE PRESIDING JUDGE:
¶1 Appellant, Bruce Conway Stewart, Jr.,
was tried by jury and convicted of Driving a
Motor Vehicle While Under the Influence of
Drugs (Count 1) (47 O.S.Supp.2013, § 11-902(A)
(4)), After Two or More Felony Convictions,
and Driving With License Suspended (Count
4) (47 O.S.2011, § 6-303), in the District Court of
Custer County, Case Number CF-2014-256.1
The jury recommended as punishment imprisonment for twenty (20) years and a $5,000.00
fine in Count 1 and incarceration in the county
jail for one (1) year and a $500.00 fine in Count
4. The trial court sentenced Appellant accordingly but reduced the fine in Count 1 to
$500.00. The trial court further ordered the
sentences to run concurrently. It is from this
judgment and sentence that Appellant appeals.
¶2 Appellant raises the following propositions of error in this appeal:
I. Improper evidence led to an excessive sentence.
II. The evidence was insufficient to convict
Mr. Stewart of Driving Under the Influence of Drugs.
III. The trial court failed to instruct the jury
on the definitions of “under the influence” and “impaired ability.”
IV. Ineffective assistance of counsel denied
Mr. Stewart a fair trial.
¶3 After a thorough consideration of these
propositions and the entire record before us
on appeal including the original records, transcripts, and briefs of the parties, we have
determined the case should be remanded for
resentencing.
938
¶5 Hunter had Appellant take a seat inside
the passenger seat in his patrol car. He observed
that Appellant’s speech was very thick and
slurred. His movements were abnormal and
very exaggerated. Appellant used his hands a
lot and made brisk movements. Appellant’s
mouth was very dry and he smacked his lips a
lot while talking. Hunter recognized all of
these as indicators of methamphetamine or
stimulant use. When Hunter asked Appellant
if he had used methamphetamine or any stimulants, Appellant advised that he had done so
in the past.
¶6 Appellant remained nervous throughout
the encounter. Hunter could see Appellant’s
pulse beating in the side of his neck. He also
observed Appellant’s pulse beat through his
stomach area. Five minutes after Hunter had
Appellant take a seat in the patrol car, Hunter
checked Appellant’s pulse and observed that it
was outside the normal range of 60 to 72 beats
per minute. Hunter determined that Appellant’s pulse was elevated to 110 beats per minute. Appellant’s elevated heart rate was also a
sign of methamphetamine or stimulant use.
¶7 When Lieutenant Paul Christian arrived
to assist Hunter with the passenger in the
vehicle, Hunter had Appellant step out of the
patrol car. Hunter performed the Romberg
Vol. 87 — No. 13 — 5/14/2016
sobriety test on Appellant and had him estimate the passage of 30 seconds. Appellant’s
perception of time was sped up. Appellant
estimated that 30 seconds had passed after
only 11 seconds. A normal response on this test
is between 27 and 33 seconds. Because stimulant use speeds up the processes and causes the
user to think that time is passing faster than it
actually is, Appellant’s test result suggested to
Hunter that Appellant was under the influence
of intoxicants. Based upon his training and
experience, Hunter believed that Appellant
was extremely intoxicated.
¶8 Lieutenant Christian observed Appellant
during the time that Hunter gave him the
Romberg test. He noticed that Appellant was
unsteady on his feet, very animated, and fidgety. Appellant was sweating profusely and his
shirt was wet with sweat. Christian believed
that Appellant was under the influence of
methamphetamine.
¶9 The Troopers placed Appellant under
arrest and searched the vehicle which Appellant had been driving. Hunter found a Crown
Royal bag between the driver’s seat and the
center console. Inside the bag were 4 plastic
baggies containing marijuana, a single plastic
baggy containing methamphetamine, and a
marijuana smoking pipe.
¶10 The Troopers took Appellant to the
Custer County Jail. They offered him a blood
test but Appellant refused to take the test.
Detention Officer Audrey Mejia booked Appellant into the jail. She noticed that Appellant
was sweating, jittery, dramatic and kind of
agitated looking. Based upon her training and
experience she believed that Appellant was
intoxicated on methamphetamine.
ANALYSIS
¶11 In Proposition One, Appellant contends
that the trial court committed error when it
admitted prejudicial evidence during the second stage of the trial. He argues that this
improper evidence caused the jury to recommend an excessive sentence in Count 1.
¶12 Appellant concedes that he waived
appellate review of this issue when he failed to
raise this challenge before the trial court. Simpson v. State, 1994 OK CR 40, ¶¶ 2, 23, 876 P.2d
690, 692-93, 698. Therefore, we review Appellant’s claim pursuant to the test set forth in
Simpson. Under this test, an appellant must
show an actual error, which is plain or obvious,
Vol. 87 — No. 13 — 5/14/2016
and which affects his substantial rights. Malone
v State, 2013 OK CR 1, ¶ 41, 293 P.3d 198, 211212; Levering v. State, 2013 OK CR 19, ¶ 6, 315
P.3d 392, 395; Simpson, 1994 OK CR 40, ¶¶ 10,
26, 30, 876 P.2d at 694, 699, 701. We will correct
plain error only if the error seriously affects the
fairness, integrity or public reputation of the
judicial proceedings or otherwise represents a
miscarriage of justice. Id.
¶13 Appellant, first, argues that the State
improperly introduced judgment and sentence
documents which referenced suspended sentences, supervised probation and rules of probation. We find that Appellant has not shown
that error occurred within this claim.
¶14 The longstanding rule is that the parties
are not to encourage jurors to speculate about
probation, pardon or parole policies. Florez v.
State, 2010 OK CR 21, ¶ 4, 239 P.3d 156, 157;
Hunter v. State, 2009 OK CR 17, ¶ 10, 208 P.3d
931, 933; Anderson v. State, 2006 OK CR 6, ¶ 11,
130 P.3d 273, 278. We determine whether, in
light of the totality of the circumstances, the
prosecution made such an unmistakable reference to the pardon and parole system of Oklahoma to result in prejudice to the defendant.
Harney v. State, 2011 OK CR 10, ¶ 24, 256 P.3d
1002, 1007.
¶15 In the present case, the State introduced
four separate judgment and sentence documents to prove Appellant’s prior felony convictions in the present case. State’s Exhibit
Number 4 was a certified copy of Appellant’s
Judgment and Sentence in the District Court of
Custer County Case No. CF-2003-161, which
reflected his conviction for the felony of Possession of Marijuana. State’s Exhibit Number 5
was a certified copy of Appellant’s Judgment
and Sentence in Custer County District Court
Case No. CF-2005-414, which reflected his conviction for the felony of Driving a Motor Vehicle While Under the Influence of Alcohol.
State’s Exhibit Number 6 was a certified copy
of Appellant’s Judgment and Sentence in the
District Court of Woodward County Case No.
CF-2009-51, which reflected Appellant’s conviction for Distribution of Controlled Substance (Marijuana). State’s Exhibit Number 7
was a certified copy of Appellant’s Judgment
and Sentence in the District Court of Ellis
County Case No. CF-2011-38 which reflected
Appellant’s conviction for the felony of Driving a Motor Vehicle While Under the Influence
of Alcohol. (Tr. 238-39).
939
¶16 Exhibit Numbers 5, 6, and 7 all referenced
the fact that Appellant had received suspended
sentences. Exhibit Numbers 6 and 7 both contained Rules and Conditions of Probation.
¶17 This Court has distinguished between
the circumstance where a prosecutor makes an
unmistakable comment upon probation or
parole and the instance where the judgment
and sentence documents reference probation
or parole. See Darks v. State, 1998 OK CR 15, ¶
59, 954 P.2d 152, 167 (citing Richardson v. State,
1979 OK CR 100, ¶ 19, 600 P.2d 361, 367). The
introduction of the judgment and sentence is a
proper part of the proof of a former felony conviction. Camp v. State, 1983 OK CR 74, ¶¶ 2-3,
664 P.2d 1052, 1053-54. A judgment and sentence which indicates that the defendant
received a suspended sentence, standing alone,
does not constitute plain error. Id.; Honeycutt v.
State, 1967 OK CR 154, ¶¶ 18-20, 432 P.2d 124,
128. In contrast, this Court has found that it is
error for the prosecutor to explicitly inform the
jury that the defendant has received a suspended sentence through reading this fact off of the
Information during the State’s opening statement and calling the jury’s attention to this fact
during closing argument. Hunter, 2009 OK CR
17, ¶ 9-10, 239 P.3d at 933-34.
¶18 Reviewing the totality of the circumstances in the present case, we find that the
prosecutor did not make an unmistakable comment upon probation or parole in the present
case. The prosecutor did not explicitly inform
the jurors that Appellant had received suspended sentences. Instead, the prosecutor
argued during closing argument that Appellant kept breaking the law and had averaged
one felony every three years over the last
twelve years. The prosecutor then asked the
jurors to look at the judgment and sentence
documents to see what had happened. He
asked the jurors to look at the dates on them.
As such, we find that error, much less plain
error, did not occur.
¶19 Appellant further argues that the judgment and sentence documents included extraneous information which was unfairly prejudicial
to him. We note that relevant evidence is generally admissible. Andrew v. State, 2007 OK CR 23,
¶ 61, 164 P.3d 176, 193; see also Postelle v. State,
2011 OK CR 30, ¶ 31, 267 P.3d 114, 131 (“Relevant evidence is evidence having any tendency
to make the existence of a fact that is of consequence to the determination of the action more
probable or less probable than it would be
940
without the evidence.”). However, the Oklahoma Evidence Code provides that relevant
evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and
harmful surprise. 12 O.S.2011, § 2403. “When
measuring the relevancy of evidence against its
prejudicial effect, the court should give the evidence its maximum reasonable probative force
and its minimum reasonable prejudicial value.”
Mayes v. State, 1994 OK CR 44, ¶ 77, 887 P.2d
1288, 1310.
¶20 Reviewing the record, we find that
Appellant has shown an error that is plain or
obvious in the absence of any objection at trial.
It appears that the prosecutor failed to redact
unfairly prejudicial materials from the judgment and sentence documents. Exhibit Numbers 4 and 5 both contained the Form 13.8(A),
Additional Findings at Time of Sentencing,
which had been filed of record in those cases
after the district court sentenced Appellant.2
Each of the forms was attached to the last page
of the judgment and sentence document. It
appears that the individual who prepared the
Form 13.8(a) forms did not complete the documents but instead attached copies of Appellant’s criminal histories to those forms. The
form attached to Exhibit Number 4 states: “See
OSBI Rap Sheet.” Criminal history records follow both of the Form 13.8(A) documents. The
criminal histories are dated at or around the
time of the arrests which led to Appellant’s prior
convictions. The last page of Exhibit Number 4 is
the Bench Warrant issued for Appellant’s failure
to appear at preliminary hearing in that case. It
contains the Custer County Court Clerk’s certification stamp. The last page of Exhibit Number 5
is the last page of the criminal history document
and contains the Custer County Court Clerk’s
certification stamp.
¶21 These additional pages were irrelevant
and prejudicial. Our Rules explicitly provide
that Form 13.8(A) “shall not be admitted into
evidence in any future prosecutions.” Section
XIII, Form 13.8(A), Rules of the Oklahoma Court
of Criminal Appeals, Title 22, Ch. 18, App. (2015).
¶22 The Oklahoma State Bureau of Investigation criminal history which was attached to
Exhibit Number 4 indicated that Appellant had
a prior felony conviction for Second Degree
Burglary in the District Court of Bryan County.
The NCIC Interstate Identification Index which
Vol. 87 — No. 13 — 5/14/2016
was attached to Exhibit Number 5 listed both
the Bryan County conviction and a conviction
for Second Degree Burglary in New Madrid
County, New Mexico. The State had not alleged
either of these convictions in the second page
of the Information. (O.R. 69-70). The Driver’s
License Master Record which was attached to
Exhibit Number 5 reflected Appellant’s commission of other drug and alcohol offenses and
administrative actions. The State was required
to redact this other crimes and bad acts evidence from the judgment and sentence exhibits. Harney, 2011 OK CR 10, ¶¶ 16-17, 256 P.3d
at 1006.
¶23 As this evidence was introduced during
the second stage of the trial, the jury’s determination of Appellant’s guilt was not affected.
However, we find that this improper evidence
affected Appellant’s substantial rights and seriously affected the fairness of the sentencing
proceeding. Because the jury recommended
the maximum punishment under the statutory
range of punishment for the offense, we cannot
find that this error was harmless. Harney, 2011
OK CR 10, ¶ 19, 256 P.3d at 1006. Therefore, we
find that the case should be remanded to the
district court for resentencing. Id., citing 22
O.S.2011, § 929.
¶24 In Proposition Two, Appellant challenges the sufficiency of the evidence supporting
his conviction for Driving a Motor Vehicle
While Under the Influence of Drugs. Reviewing the evidence in the light most favorable to
the prosecution, we find that any rational trier
of fact could have found the essential elements
of the offense beyond a reasonable doubt.
Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d
556, 559; Plantz v. State, 1994 OK CR 33, ¶ 43,
876 P.2d 268, 281; Spuehler v. State, 1985 OK CR
132, ¶ 7, 709 P.2d 202, 203-204. Any rational
trier of fact could have found that Appellant
was under the influence. Trooper Hunter, Lieutenant Christian, and Officer Mejia all testified
that based upon their experience and training
they believed that Appellant was under the
influence of methamphetamine. The description of Appellant’s physical condition coupled
with the traffic violation that Appellant committed tended to establish that an intoxicating
substance had so far affected Appellant as to
hinder, to an appreciable degree, his ability to
operate a motor vehicle in a manner that an
ordinary prudent and cautious person, if in full
possession of his faculties, using reasonable
care, would operate or drive under like condiVol. 87 — No. 13 — 5/14/2016
tions. Stanfield v. State, 1978 OK CR 34, ¶ 8, 576
P.2d 772, 774. Proposition Two is denied.
¶25 In his third proposition of error, Appellant contends that the trial court committed
reversible error by failing to instruct the jury
on the definitions of “under the influence” and
“with impaired ability.” See Inst. Nos. 6-24,
6-35, OUJI-CR(2d) (Supp.2005). He concedes
that he waived appellate review of this issue
when he failed to raise this challenge before the
trial court. Romano v. State, 1995 OK CR 74, ¶
80, 909 P.2d 92, 120; Simpson, 1994 OK CR 40, ¶
2, 23, 876 P.2d at 692-93, 698. Therefore, we
review Appellant’s claim pursuant to the test
set forth in Simpson and determine whether
Appellant has shown an actual error, which is
plain or obvious, and which affects his substantial rights. Malone, 2013 OK CR 1, ¶ 41, 293
P.3d at 211-12; Levering, 2013 OK CR 19, ¶ 6, 315
P.3d at 395; Simpson, 1994 OK CR 40, ¶¶ 10, 26,
30, 876 P.2d at 694, 699, 701. This Court will
only correct plain error if the error seriously
affects the fairness, integrity or public reputation of the judicial proceedings or otherwise
represents a miscarriage of justice. Id.
¶26 In Slusher v. State, 1991 OK CR 83, ¶ 5,
814 P.2d 504, 505, this Court held “unequivocally that the terms ‘under the influence’ and
‘with impaired ability’ when such constitute an
element of the offense, must always be defined
in the instructions, whether requested or not,
and the failure to so define is fundamental
error which will result in reversible error.” The
State concedes that the trial court failed to
instruct the jury concerning the requisite definitions but argues that Slusher conflicts with
more recent cases holding that the omission of
jury instructions, even those defining elements
of an offense, can be harmless. We agree.
¶27 After Slusher was decided, this Court
determined in Simpson, that the concept of fundamental error had been codified by the Oklahoma Evidence Code as plain error. Simpson,
1994 OK CR 40, ¶ 2, 876 P.2d at 692-93. We
explicitly found that fundamental error, i.e.,
plain error, is subject to harmless error analysis
and overruled Spears v. State, 1991 OK CR 13,
805 P.2d 681, which had held to the contrary.
Simpson, 1994 OK CR 40, ¶¶ 2, 8-9, 20, 876 P.2d
at 693, 694, 698. If an appellant meets the heavy
burden of demonstrating plain error, then “that
plain error is subject to harmless error analysis.” Id., 1994 OK CR 40, ¶¶ 20, 34, 876 P.2d at
698, 701. If the error is a constitutional violation, we review to determine whether the error
941
was harmless beyond a reasonable doubt. Id.,
1994 OK CR 40, ¶¶ 34-35, 876 P.2d at 701-02. If
the error is the result of the failure to adhere to
state law, it is considered harmless unless the
error had a substantial influence on the outcome of the case or leaves the Court in grave
doubt as to whether it had such an effect. Id.,
1994 OK CR 40, ¶¶ 34-35, 876 P.2d at 701-02.
¶28 Thereafter, the United States Supreme
Court in Neder v. United States, 527 U.S. 1, 7-9,
119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999), held
that an instruction that omits an element of an
offense can be subject to the harmless error
doctrine. In Primeaux v. State, 2004 OK CR 16,
88 P.3d 893, this Court recognized the Supreme
Court’s holding in Neder and determined that
only those errors which have been previously
identified as structural errors, require reversal
regardless of the effect on the outcome. Id.,
2004 OK CR 16, ¶¶ 77, 81, 88 P.3d at 907-08 (citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct.
1246, 113 L.Ed.2d 302 (1991)). If an instruction
omits an element of the offense or relieves the
State of its burden of persuasion, the inquiry is
whether it is clear beyond a reasonable doubt
that a rational jury would have found the defendant guilty absent the error. Primeaux, 2004
OK CR 16, ¶ 82, 88 P.3d at 908; Burgess v. State,
2010 OK CR 25, ¶ 21, 243 P.3d 461, 465.
¶29 Therefore, Slusher is in conflict with this
Court’s plain error and harmless error jurisprudence. To the extent that Slusher predetermines that instructional error requires reversal,
it is overruled.
¶30 Turning to the present case, we find that
plain error occurred. The trial court failed to
instruct the jury concerning the definitions of
“under the influence” and “with impaired ability.”3 However, it is clear beyond a reasonable
doubt that a rational jury would have found
Appellant guilty absent this error. Primeaux,
2004 OK CR 16, ¶ 82, 88 P.3d at 908. The trial
court properly instructed the jury concerning
all of the necessary elements of the charged
offense. Inst. No. 6-19, OUJI-CR(2d) (Supp.
2012)). This instruction required the jury to
determine that Appellant was under the influence of an intoxicating substance which was
capable of rendering him incapable of safely
driving a motor vehicle.
¶31 The evidence of Appellant’s guilt was
uncontroverted. All of the witnesses believed
that he was intoxicated on methamphetamine.
The witnesses all agreed that Appellant was
942
very animated, fidgety, dramatic, and was
sweating profusely. Trooper Hunter observed
additional signs of methamphetamine intoxication. He noted that Appellant’s speech was
very thick and slurred. His mouth was very
dry and he smacked his lips a lot while talking.
Appellant’s pulse was readily observable
through his neck and stomach areas. Hunter
determined that Appellant’s pulse rate was
elevated.
¶32 The evidence clearly established that
Appellant’s intoxicated state hindered his ability to safely operate a motor vehicle. Stanfield,
1978 OK CR 34, ¶ 8, 576 P.2d at 774. Appellant
deviated from the direct course and allowed
his vehicle to travel into the outside lane. He
dropped a package on the ground when he
exited his car and then leaned into the car for
several seconds. Trooper Christian observed that
Appellant was unsteady on his feet. Trooper
Hunter observed that Appellant’s movements
were exaggerated and abnormal. His perception
of time was inaccurate as it was sped up.
Accordingly, we find that the trial court’s error
did not seriously affect the fairness, integrity or
public reputation of the judicial proceedings or
otherwise represent a miscarriage of justice.
Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907,
923; Simpson, 1994 OK CR 40, ¶¶ 27-30, 876 P.2d
at 700-01. Proposition Three is denied.
¶33 In Proposition Four, Appellant challenges the effectiveness of his counsel at trial. We
find that he has not shown ineffective assistance of counsel pursuant to the two-part test
mandated by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984);
Mitchell v. State, 2011 OK CR 26, ¶ 139, 270 P.3d
160, 190.
¶34 Appellant asserts that defense counsel
was ineffective when he failed to object to the
admission of the documents which he challenged in Proposition One. We determined that
Appellant had shown plain error and was
entitled to relief in this proposition. As such,
we find Appellant’s ineffective assistance of
counsel claim moot.
¶35 Appellant further asserts that defense
counsel was ineffective when he failed to
request the instructions which he asserts the
omission of which constituted error in Proposition Three. We determined in Proposition
Three that the trial court’s error was harmless.
As such, we find that Appellant has not shown
Vol. 87 — No. 13 — 5/14/2016
a reasonable probability that the outcome of
the trial would have been different but for
counsel’s failure to raise the challenge that he
now raises on appeal. Andrew, 2007 OK CR 23,
¶ 99, 164 P.3d at 198; Glossip v. State, 2007 OK
CR 12, ¶¶ 110-12, 157 P.3d 143, 161. Proposition
Four is denied.
DECISION
¶36 The Judgment and Sentence of the District Court on Count 4 is AFFIRMED. Appellant’s conviction for Driving a Motor Vehicle
While Under the Influence of Drugs in Count 1
is AFFIRMED but the case is REMANDED TO
THE DISTRICT COURT FOR RESENTENCING CONSISTENT WITH THIS OPINION.
Pursuant to Rule 3.15, Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch. 18, App.
(2016), the MANDATE is ORDERED issued
upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT
OF CUSTER COUNTY
THE HONORABLE JILL C. WEEDON,
ASSOCIATE DISTRICT JUDGE
APPEARANCES AT TRIAL
Micah Sielert, Michael Housely, Oklahoma
Indigent Defense System, P.O. Box 1494, Clinton, OK 73601, Counsel for Defendant
Ricky A. McPhearson, Assistant District Attorney, P.O. Box 36, Arapaho, OK 73620, Counsel
for the State
APPEARANCES ON APPEAL
Rana Hill, Appellate Defense Counsel, P.O. Box
926, Norman, OK 73070, Counsel for Appellant
E. Scott Pruitt, Attorney General of Oklahoma,
Timothy J. Downing, Assistant Attorney General, 313 N.E. 21st St., Oklahoma City, OK
73105, Counsel for the State
Vol. 87 — No. 13 — 5/14/2016
OPINION BY: LUMPKIN, V.P.J.
SMITH, P.J.: Concur in Result
JOHNSON, J.: Concur in Result
LEWIS, J.: Concur
HUDSON, J.: Concur
JOHNSON, JUDGE, CONCURRING IN
RESULT:
¶1 I concur in the decision to affirm the Judgment and Sentence on Count 4. I further agree
with the decision to affirm Stewart’s conviction
on Count 1 as well as with the decision to
remand the matter for resentencing because of
the admission of prejudicial material (Form
13.8(A)) submitted with the Judgment and Sentence documents offered for sentence enhancement. I cannot join, however, in the majority’s
plain error analysis in Proposition I because I
find the prosecutor erred by exhorting the
jurors to review Judgment and Sentence documents, including the dates, that clearly showed
Stewart had received suspended sentences. See
Hunter v. State, 2009 OK CR 17, ¶ 10, 208 P.3d
931, 933-34. Furthermore, I continue to adhere
to the plain error review discussed in Hogan v.
State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923
that is based on the federal statutory plain
error review explained in United States v. Olano,
507 U.S. 725, 734-35, 113 S.Ct. 1770, 1777-78, 123
L.Ed.2d 508 (1993).
¶2 I am authorized to state that Judge Smith
joins in this opinion concurring in result.
1. The jury acquitted Appellant as to the offenses of Possession of
Controlled Dangerous Substance (methamphetamine and marijuana)
(Count 2) (63 O.S.Supp.2012, § 2-402), and Unlawful Possession of
Drug Paraphernalia (Count 3) (63 O.S.2011, § 2-405).
2. This Court adopted Form 13.8(A), at the request of the Oklahoma Legislature, to document the past criminal record of a defendant
prior to sentencing.
3. An instruction on the definition of “with impaired ability” was
necessary because the trial court instructed the jury concerning the
lesser offense of Driving While Impaired. (47 O.S.2011, § 761).
943
The Sovereignty Symposium 2016
EVERYTHING CHANGES
Skirvin
The
June 8 - 9, 2016
Hotel u Oklahoma City, Oklahoma
Presented by
The Oklahoma Supreme Court
Indian Law Section of the Oklahoma Bar Association
The University of Tulsa College of Law
The University of Oklahoma College of Law
Oklahoma City University School of Law
and
The Sovereignty Symposium, Inc.
17 hours of CLE credit for lawyers will be awarded, including 3.5 hours of ethics.
NOTE: Please be aware that each state has its own rules and regulations, including the definition of “CLE”; therefore, certain portions of the program may not receive credit in some states.
The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal issues could be exchanged in a scholarly, non-adversarial
environment. The Supreme Court espouses no view on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court.
THE SOVEREIGNTY SYMPOSIUM AGENDA
Wednesday, June 8, 2016
a.m. 4 CLE credits / 0 ethics included
p.m. 5.5 CLE credits / 3.5 ethics included
Wednesday Morning
7:30 – 4:30 Registration (Honors Lounge)
8:00 – 8:30 Complimentary Continental Breakfast
10:30 – 10:45 Morning Coffee / Tea Break
12:00 – 1:15 Lunch on your own
8:30 – 12:00 PANEL A: ECONOMIC DEVELOPMENT
(THIS PANEL CONTINUES FROM 2:45- 5:30)
CRYSTAL ROOM
MODERATOR: JAMES C. COLLARD, Director of Planning
and Economic Development, Citizen Potawatomi Nation
KAREN BELL, Her Britannic Majesty’s Consul-General
CHRIS BENGE, (Cherokee) Oklahoma Secretary of State
BOBBY CLEVELAND, Representative for District Twenty,
Oklahoma House of Representatives
DAVID NIMMO, Chief Executive Officer/President,
Chickasaw Nation Industries
DEREK OSBORN, Legislative Assistant to
Senator James Lankford
MICHAEL S. NEAL, President and CEO, Tulsa Regional Chamber
8:30 – 12:00 PANEL B: SIGNS, SYMBOLS AND PHOTOGRAPHS:
A CULTURAL VISUAL LANGUAGE
MODERATOR: KEITH RAPP, Judge, Oklahoma Court of
Civil Appeals
CO-MODERATOR: NEIL CHAPMAN, Photographer, former
Mt. San Antonio College Photography Department Co-Chair and
Professor of Photography
944
KELLY HANEY, (Seminole), Artist, former Oklahoma State Senator,
former Chief of the Seminole Nation
STU OSTLER, Oklahoma State Capitol Photographer
CHESTER COWEN, Oklahoma Historical Society,
Still Photo Archivist
DANIEL BRACKETT, Oklahoma Native American Art
Collection; Chair, Board of Trustees, Oscar Jacobson Foundation
WINSTON SCAMBLER, Student of Native American Art
ERIC TIPPECONNIC, (Comanche), Artist and Professor,
California State University, Fullerton
LES BERRYHILL, (Yuchi/Muscogee), Artist
KENNETH JOHNSON, (Muscogee (Creek)/Seminole),
Contemporary Jewelry Designer
and Metalsmith
8:30 – 12:00 PANEL C: TRUTH AND RECONCILLIATION:
GENERATIONAL/HISTORICAL TRAUMA AND HEALING
MODERATOR: NOMA GURICH, Justice, Oklahoma
Supreme Court
BRETT LEE SHELTON, (Oglala Sioux), Attorney, Native American
Rights Fund
KATHRYN ENGLAND-AYTES, (Cherokee descendant) Professor,
California State University, Monterey Bay
ETHLEEN IRON CLOUD-TWO DOGS, (Oglala Lakota),
Tiyospaye Sakowin Education and Healing Center (via Webcam)
ROBERT E. HAYES, JR., Methodist Bishop of Oklahoma
DAVID WILSON, (Choctaw) Conference Superintendent,
Oklahoma Indian Missionary Conference
GORDON YELLOWMAN, (Cheyenne), Peace Chief, Assistant
Executive Director of Education, Cheyenne and Arapaho Tribes
KRIS LADUSAU, Reverend, Dharma Center of Oklahoma
Vol. 87 — No. 13 — 5/14/2016
1:15 – 2:30 OPENING CEREMONY AND KEYNOTE ADDRESS
GRAND BALLROOMS D-F
MASTER OF CEREMONIES – STEVEN TAYLOR, Justice,
Oklahoma Supreme Court
PRESENTATION OF FLAGS
HONOR GUARDS: Kiowa Black Leggings
SINGERS: SOUTHERN NATION
CAMP CALL: GORDON YELLOWMAN
INVOCATION: KRIS LADUSAU, Reverend, Dharma Center
of Oklahoma
WELCOME: MARY FALLIN, Governor of Oklahoma
WELCOME: GARVIN ISAACS, President, Oklahoma
Bar Association
WELCOME: JAY WILLIAMS, United States Assistant Secretary
of Commerce for Economic Development
WELCOME AND INTRODUCTION OF KEYNOTE SPEAKERS:
JOHN REIF, Chief Justice, Oklahoma Supreme Court
SPEAKERS:
SUZAN SHOWN HARJO, (Cheyenne and Hodulgee Muscogee),
Morning Star Institute
KAREN BELL, Her Brittanic Majesty’s Consul-General
PRESENTATION OF AWARDS, YVONNE KAUGER, Justice,
Oklahoma Supreme Court
HONOR AND MEMORIAL SONGS: SOUTHERN NATION
CLOSING PRAYER: ROBERT E. HAYES, Jr.,
Methodist Bishop of Oklahoma
2:30 – 2:45 Tea / Cookie Break for all Panels
2:45 – 5:30 PANEL A: ECONOMIC DEVELOPMENT
A CONTINUATION OF THE MORNING PANEL
CRYSTAL ROOM
MODERATOR: JAMES C. COLLARD, Director of Planning and
Economic Development, Citizen Potawatomi Nation
DAVID WALTERS, President, Walters Power International,
former Governor of Oklahoma
ROBERT ANDREW, United States Department Diplomat in
Residence, University of Oklahoma
GAVIN CLARKSON, Associate Professor, College of Business,
New Mexico State University
MICHAEL DAVIS, President, Oklahoma Finance Authority
BRYAN MITCHELL, CH2M
LAUREN KING, (Muscogee (Creek), Foster Pepper PLLC,
Appellate Judge – Northwest Intertribal Court System
2:45 – 5:30 PANEL B: ETHICS
JOHN REIF, Chief Justice, Oklahoma Supreme Court
2:45 – 5:30 PANEL C: EDUCATION
MODERATOR: DEBORAH BARNES, Judge, Oklahoma Court
of Civil Appeals
CO-MODERATOR: QUINTON ROMAN NOSE, (Cheyenne),
Executive Director, Tribal Education Departments
National Assembly
JOY HOFMEISTER, State Superintendent of Public Instruction
WILLIAM MENDOZA, United States Department of Education
MATT CAMPBELL, Native America Rights Fund
PHILIP GOVER, Managing Director, Sovereign Schools Project,
TEDNA
ALEX RED CORN, Special Coordinator for Indigenous
Partnerships, College of Education, Kansas State University
DWIGHT PICKERING, Director, American Indian Education
for Oklahoma
ROBERT COOK, Director, Native American Alliance,
Teach for America
JOHN HARGRAVE, President, East Central University
DAN LITTLE, Little Law Firm
Vol. 87 — No. 13 — 5/14/2016
FRANK WANG, President, Oklahoma School of Science
and Mathematics
2:45 – 5:30 PANEL C: CRIMINAL LAW
MODERATOR: CLANCY SMITH, Presiding Judge,
Oklahoma Court of Criminal Appeals
CO-MODERATOR: ARVO MIKKANEN, (Kiowa/Comanche),
Assistant United States Attorney and tribal liaison, Western
District of Oklahoma
MARK YANCEY, Acting United States Attorney for the Western
ED SNOW, Assistant United States Attorney for the Eastern
ROBERT DON GIFFORD, (Cherokee), Assistant United States
Attorney and tribal liaison, Western District of Oklahoma
RANDY WESLEY, (Chickasaw), Chief, Chickasaw Nation
Lighthorse Police
JIM COY, (Comanche), Former Executive Director, Oklahoma
Association of Chiefs of Police
6:15 OKLAHOMA JUDICIAL CENTER SHOWING OF THE
RESTORED SILENT FILM – DAUGHTER OF THE DAWN
BOB BLACKBURN, Executive Director, Oklahoma
Historical Society
7:00 RECEPTION-OKLAHOMA JUDICIAL CENTER
Thursday, June 9, 2016
a.m. 3.5 CLE credits / 0 ethics included
p.m. 4 CLE credits / 0 ethics included
Thursday Morning
7:30 – 4:30 Registration
8:00 – 8:30 Complimentary Continental Breakfast
10:30 – 10:45 Morning Coffee / Tea Break
12:00 – 1:30 Lunch on your own
8:30 – 11:00 JOINT PANELS A AND B
MODERATOR: WILLIAM HETHERINGTON, JR., Judge,
Oklahoma Court of Civil Appeals, past District Judge,
Cleveland County, Oklahoma
CO - MODERATOR: SUE TATE, Court Improvement Project
Coordinator, Oklahoma Administrative Office of the Courts
JUVENILE LAW AND CHILDREN’S ISSUES: CONCERNS OF
THE JUDICIARY
In order to engage in a meaningful discussion of issues relating
to children, the traditional Symposium panels dealing with
Juvenile Law and the Concerns of the Judiciary will be a joint
panel for this time period. The panel will deal with the
ICWA and P.L., 113-183, preventing the sex trafficking of
foster children.
JOHN ROMERO, JR., District Judge Children’s Court Division,
Albuquerque, New Mexico
WHITNEY ANDERSON, (Chickasaw), Beautiful Dreams Society
BLAINE PHILLIPS or MIKE SNOWDEN, Oklahoma State Bureau
of Narcotics
JESSICA CADENAS JARVIS, United States Attorney and Tribal
Liaison for the U.S. Attorney’s Office for the Western District
of Oklahoma
10:45 – 12:00 C. STEVEN HAGER, Director of Litigation,
Oklahoma Indian Legal Services
11:00 – 12:00 STATE-TRIBAL-FEDERAL JUDGE MEETING
8:30 – 12:00 PANEL C: DEFENSE
MODERATOR: JERRY GOODMAN, Judge, Oklahoma Court of
Civil Appeals
945
CO - MODERATOR: CHRISTOPHER C. STRAUB, Vice President,
AMAR U.S
JEFF KEEL, (Chickasaw), CNI Advantage, LLC
STEVEN BILBY, Cherokee Nation
STEVEN BENEFIELD, CEO, Choctaw Defense Manufacturing
Representative, Contracting, Tinker Air Force Base
WILLIAM P. BOWDEN, Major General (Retired), United States
Air Force
LINDY RITZ, The Ritz Group, retired Director, Mike Monroney
Aeronautical Center
CHAD KNAPP, Special Agent, Federal Bureau of Investigation
D.G. SMALLING, (Choctaw)
DAVID CID, former agent, Federal Bureau of Investigation,
former Deputy Director, Memorial Institute for the Prevention
of Terrorism
DAVID N. EDGAR, Senior Fellow, University of Oklahoma Center
for Intelligence and National Security
8:30 – 12:00 PANEL D: SACRED SPACES
MODERATOR: NOMA GURICH, Justice, Oklahoma
Supreme Court
CO-MODERATOR: C. BLUE CLARK, Muskogee (Creek),
Professor and David Pendleton Chair of American Indian Law,
History, and Religion, Oklahoma City University School of Law
GEORGE THOMPSON, Chief of the Hickory Ground of
Oklahoma, Vice-Chief Justice, Supreme Court of the
Muscogee Nation
JAMES FLOYD, Principal Chief of the Muscogee Nation
JEFFERSON KEEL, Lieutenant Governor of the
Chickasaw Nation
Thursday Afternoon
12:00 – 1:30 WORKING LUNCH FOR FEDERAL, STATE AND
TRIBAL JUDICIARY AND SOVEREIGNTY SYMPOSIUM FACULTY
3:30 – 3:45 Tea / Cookie Break for all Panels
1:30 – 5:00 PANEL A: THE CONCERNS OF THE JUDICIARY —
A FOCUS ON MUTUAL CONCERNS OF THE TRIBAL —
STATE AND FEDERAL BENCH
The panel will consider how to accord full faith and credit to
judicial decisions.
MODERATOR: THOMAS S. WALKER, (Wyandotte/Cherokee),
Appellate Magistrate for the CFR Court, District Judge (retired),
Brigadier General, (retired)
WILLIAM HETHERINGTON, JR., Judge, Oklahoma Court
of Civil Appeals, past District Judge,
Cleveland County, Oklahoma
CASEY ROSS PETHERICK, Professor, Oklahoma City University
School of Law
TRICIA A. TINGLE, (Choctaw) Associate Director –
Tribal Justice Support, Office of Justice Services, Bureau of
Indian Affairs
DIANNE BARKER HAROLD, (Cherokee), Tribal Judge
GREGORY BIGLER, (Euchee, enrolled Muscogee (Creek)),
District Judge, Muskogee (Creek) Nation Tribal Court
LAUREN KING, (Muscogee (Creek)), Attorney – Foster Pepper
PLLC, Appellate Judge – Northwest Intertribal Court System
PATRICK B. MCGUIGAN, Editor, CapitolBeatOK,
Senior Editor, The City Sentinel
1:30 – 5:00 PANEL B: JUVENILE LAW
MODERATOR: BRIAN GOREE, Judge, Oklahoma Court of
Civil Appeals
CO – MODERATOR: JACQUE HENSLEY, (Kaw), Indian Affairs
Liaison, Oklahoma Department of Human Services
BRIAN HENDRYX, Deputy Assistant for Native American Affairs
at OK Secretary of State
SETH MCINTOSH, Muscogee (Creek) Nation Tribal Juvenile
Justice Officer
C. STEVEN HAGER, Director of Litigation, Oklahoma Indian
Legal Services
ELIZABETH BROWN, Associate District Judge, Adair County
MARK MOORE, Associate District Judge, Blaine County
1:30 – 5:00 PANEL C: NEW VOICES IN NATIVE AMERICAN
LITERATURE
MODERATOR: JAMES EDMONDSON, Justice, Oklahoma
Supreme Court
CO-MODERATOR: GAYLEEN RABAKUKK, Author, Art of the
Oklahoma Judicial Center
WILEY BARNES, Editor, Chickasaw Press
JEANNE DEVLIN, Publisher, Roadrunner Press
TIM TINGLE, (Choctaw), Author
SANDY THARP-THEE, (Cherokee), Author and Library Director
of Iowa Tribe
JOSHUA HINSON, (Chickasaw), Director of Chickasaw
Language Program
1:30 – 5:00 PANEL D: GAMING
CO-MODERATORS:
MATTHEW MORGAN, Chickasaw Nation
NANCY GREEN, ESQ., Green Law Firm, P.C., Ada, Oklahoma
Opening Remarks:
JONODEV CHAUDHURI, (Muscogee (Creek)), Chairman,
National Indian Gaming Commission
ERNIE L. STEVENS, JR., (Oneida), Chairman, National Indian
Gaming Association
MICHAEL HOENIG, NIGC, Office of General Counsel
KYLE DEAN, Director, Center for Native American and
Urban Studies, Oklahoma City University, Meinders School
of Business
SHEILA MORAGO, Oklahoma Indian Gaming Association
G. DEAN LUTHEY, JR., Gable Gotwals
MICHAEL D. MCBRIDE, III, Crowe & Dunlevy
ELIZABETH HOMER, (Osage), Homer Law Chartered
WILLIAM NORMAN, Hobbs, Strauss, Dean & Walker
RICHARD GRELLNER, RJG Law, PLLC
NOTICE
Oklahoma State, Tribal and Federal Judges, will meet at the Sovereignty Symposium on
June 9, 2016, at 11:00 a.m. The meeting will be held at the Skirvin Hotel, 1 Park Ave,
Oklahoma City, Oklahoma.
946
Vol. 87 — No. 13 — 5/14/2016
Everything Changes
THE SOVEREIGNTY SYMPOSIUM XXIX
June 8-9, 2016
Oklahoma City, Oklahoma
Registration Form
Name:______________________________________________ Occupation:___________________________________________
Address:___________________________________________________________________________________________________
City_______________________________________________________________________State________ Zip Code__________
Billing Address if different from above:
City_______________________________________________________________________State________ Zip Code__________
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Email Address and/or website:_________________________________________________________________________________
Telephone:Office:__________________________ Cell:___________________________ Fax:___________________________
Tribal Affiliation (if applicable)__________________________________________________________________________________
If Bar Association Member:
Bar#_______________________________________State____________
17 hours of CLE credit for lawyers will be awarded, including 3.5 hours of ethics.
# of Persons
Registration Fee
$275.00
Amount Enclosed
June 8 & 9 ($300 if postmarked after May 23, 2016)
$175.00
June 9, 2016 Only ($200 if postmarked after May 23, 2016)
Total Amount
We ask that you register online at www.thesovereigntysymposium.com. This site also provides hotel registration information and a
detailed agenda. For hotel registration please contact the Skirvin-Hilton Hotel at 1-405-272-3040. If you wish to register by paper, please
mail this form to:
THE SOVEREIGNTY SYMPOSIUM, INC.
The Oklahoma Judicial Center Suite 1
2100 North Lincoln Boulevard
Oklahoma City, Oklahoma 73105-4914
www.thesovereigntysymposium.com
Presented by
The Oklahoma Supreme Court
The Oklahoma Bar Association
Indian Law Section
The University of Tulsa College of Law
Vol. 87 — No. 13 — 5/14/2016
The University of Oklahoma College of Law
Oklahoma City University School of Law
The Sovereignty Symposium, Inc.
947
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Vol. 87 — No. 13 — 5/14/2016
Court of Civil Appeals Opinions
2016 OK CIV APP 20
JULIE GWEN SANFORD and S.D.,
Petitioners/Appellees, vs. BLAISE ALLYN
SANFORD, Respondent/Appellant.
Case No. 113,669. April 14, 2016
APPEAL FROM THE DISTRICT COURT OF
COAL COUNTY, OKLAHOMA
HONORABLE D. CLAY MOWDY,
TRIAL JUDGE
AFFIRMED
Ellen Quinton, GOTCHER, BEAVER & QUINTON, McAlester, Oklahoma, for Petitioners/
Appellees
Joshua A. Edwards, LAW OFFICES OF JAMES
R. NEAL, PLLC, Ada, Oklahoma, for Respondent/Appellant
KEITH RAPP, PRESIDING JUDGE:
¶1 The defendant, Blaise Allyn Sanford (Husband), appeals an Order granting a continuous
protective order against him and in favor of the
plaintiffs, Julie Gwen Sanford (Wife) and her
minor child, S.D.
BACKGROUND
¶2 As presented here, this appeal presents a
single issue. Husband argues that the trial
court erred by making the protective order
continuous.1 Specifically, Husband argues that
Title 22 O.S. Supp. 2014, § 60.4(G)(1)(b) specifies four grounds for a continuous order and
that no evidence or finding exists to support
any of those four listed grounds.2
¶3 Wife testified to a series of physical and
emotional abuse directed against her by Husband. The abuse included verbal abuse, assault,
battery, and placing a gun to her head.3 Wife
testified that the abuse was ongoing for over
two years. She also told of an incident where
Husband battered S.D.4 Wife stated that S.D.
had observed incidents of abuse and was also
the victim of Husband’s abuse.
¶4 On cross-examination, Wife acknowledged that she had requested and received a
dismissal of a prior protective order.5 She
explained that Husband had “conned” her into
Vol. 87 — No. 13 — 5/14/2016
believing he had reformed, but soon afterward
his abusive actions resumed. She stated that
she did not know of any instance where Husband had violated the present protective order
by contacting her or S.D., but she believed he
had come to the residence when she was away.
¶5 S.D. testified about an incident when
Husband beat and choked him. He related he
observed Husband abusing his mother.
¶6 A friend of Wife’s testified about an event
at a local drive-in when Husband attacked
Wife. Husband attempted to strike Wife while
Wife and the witness were seated in Wife’s
vehicle.
¶7 Husband did not testify. Husband did not
make any closing motions. The Record does
not contain any request for findings of fact or
conclusions of law. See 12 O.S.2011, § 611.
¶8 At the close of the evidence, the trial court
entered a protective order and made it permanent. The trial court referenced the evidence
generally and did not make any specific findings of fact or conclusions of law.6 The protective order is written on an Administrator of the
Courts Form (AOC form), with checks on pertinent paragraphs. One paragraph, checked by
the trial court, provides:
3) Duration:
....
OR:
3b) The Court finds that one or more of the
conditions set forth in 22 O.S. 60.4(G)(1)(b)
exists in the present matter, and therefore
this Final Protective Order shall be continuous without expiration until modified,
vacated or rescinded.
Husband appeals.
STANDARD OF REVIEW
¶9 Proceedings under the Protection from
Domestic Abuse Act are reviewed for an abuse
of discretion. Curry v. Streater, 2009 OK 5, ¶ 8,
213 P.3d 550, 554. The Court explained:
Under an abuse of discretion standard, the
appellate court examines the evidence in
949
the record and reverses only if the trial
court’s decision is clearly against the evidence or is contrary to a governing principle of law. To reverse under an abuse of
discretion standard, an appellate court
must find the trial court’s conclusions and
judgment were clearly erroneous, against
reason and evidence.
Id. (Citations omitted.)
¶10 Husband’s appeal, in part, calls for an
interpretation of Section 60.4(G)(1)(b). Statutory interpretation presents a question of law,
reviewed de novo. Fulsom v. Fulsom, 2003 OK 96,
¶ 2, 81 P.3d 652, 654.
ANALYSIS AND REVIEW
A. Requirement for Specific Findings
and Conclusions
¶11 Final protective orders “shall be on a
standard form developed by the Administrative Office of the Courts.” 22 O.S. Supp. 2014, §
60.4(D). The trial court used the prescribed
AOC form. The form does not set out the individual, specific findings of Section 60.4(G)(1)
(b), but only makes a general reference to the
Section. Husband does not dispute that the
trial court used the AOC form.
¶12 Husband did not provide this Court any
legal authority to demonstrate that the trial
court erred by following the statute’s directive
to use the AOC form. Husband also has not
shown that the AOC form fails to conform to
any legal requirement for such forms or the use
of the form in this instance. Moreover, Husband did not request specific findings or conclusions at trial and did not object to the use of
the AOC form or offer a different format.
¶13 Arguments not supported by legal
authority are not considered. Okla.Sup.Ct.R.
1.11(k), 12 O.S. Supp. 2014, ch. 15, app 1. Judgments ordinarily may not be set aside on procedural grounds. 20 O.S.2011, § 3001.1. No
exception to Section 3001.1 has been provided
by Husband.
¶14 Last, when a trial court finding is general, it is a finding of every specific thing necessary to be found to sustain a general judgment.
“[S]uch judgment will not be disturbed on
appeal in the absence of legal errors, if there is
any competent evidence reasonably tending to
support the trial court’s conclusion.” Givens v.
Western Paving Co., 1953 OK 242, ¶ 4, 261 P.2d
450, 451.7
950
¶15 Therefore, this Court holds that there is
no reversible error shown by Husband due to
the procedural use by the trial court of the
AOC form for the protective order, including
the AOC form’s general provision regarding
the finding under Section 60.4(G)(1)(b).
B. Sufficiency of Evidence
¶16 Section 60.4(G)(1)(b) limits the reasons
why a protective order may be made continuous. The problem of interpretation arises because
Section 60.4(G)(1)(b) begins by limiting the
court’s authority to a “specific finding” of “one
of the following” and thereafter enumerates four
circumstances. However, the statute continues,
after the list of four, to say “Further” the court
may consider a history of domestic violence.
¶17 Here, the first three enumerated conditions are not present. Wife’s evidence did not
show that Husband had violated orders, or had
been convicted of a felony or felony stalking.
¶18 Also, Wife’s evidence did not show that,
previously, a final victim protective order had
been issued against Husband. The nature of
the previous order against Husband is not
shown in this Record. Therefore, the evidence
does not support a finding that the fourth enumerated circumstance applies to this case.
¶19 However, the evidence is absolutely
clear that Husband has a history of domestic
violence.8 “The Protection from Domestic
Abuse Act serves a vital purpose, to prevent
violence.” Holeman v. White, 2012 OK CIV APP
107, ¶ 15, 292 P.3d 65, 68.
¶20 “The primary goal of statutory construction is to ascertain and follow the intention of
the Legislature.” TRW/Reda Pump v. Brewington,
1992 OK 31, ¶ 5, 829 P.2d 15, 20. If a statute is
unambiguous and there is no reason to apply
rules of statutory construction, this Court will
accord the meaning expressed by the clear language of the statute. Id. Furthermore, this
Court will presume that the Legislature has not
done a vain act in drafting legislation. Marquette v. Marquette, 1984 OK CIV APP 25, ¶ 8,
686 P.2d 990, 993. This Court will avoid an
interpretation of a statute which would lead to
an absurd result provided it does not violate
the legislative intent. Id.
¶21 Therefore, this Court construes the “one
of the following” phrase to include the “Further” consideration of a domestic violence history. If the Legislature had desired to limit the
Vol. 87 — No. 13 — 5/14/2016
issuance of a continuous order to the enumerated provisions it would have said “one or
more of the following four enumerated” provisions. The Legislature did not do so.
¶22 Moreover, if the “Further” consideration
did not constitute an additional basis for a continuous order, then it would have virtually no
purpose, other than to provide an aggravating
factor to one of the four enumerated circumstances. There is no need or role for an aggravating factor because the issuance of the continuous order is the ultimate sanction.
¶23 Last, the intent of the legislation is to
prevent and protect from violence. The egregious circumstance of a history of domestic
violence merits special attention in the form of
a continuous order. There may be no doubt
that the trial court had Husband’s history in
mind when it made the decision to make this a
continuous protective order. That decision is
supported by the evidence and is affirmed.
CONCLUSION AND SUMMARY
¶24 The trial court issued a continuous protective order. The trial court used a form provided by the Administrator of the Courts
which made general reference to findings
under 22 O.S. Supp. 2014, § 60.4(G)(1)(b). Husband has not demonstrated in this appeal how
or why the use of the form is error. Moreover,
Husband did not object to its use at trial or
offer an alternative.
¶25 The findings required under Section
60.4(G)(1)(b) as a basis for a continuous protective order are not limited to the four enumerated findings, but also include the “history of
domestic violence” finding. Inclusion of the
“history of domestic violence” criterion is consistent with the overall purpose of the Act to
prevent and protect from violence. Inclusion
also is consistent with a reasonable reading of
the language of Section 60.4(G)(1)(b).
¶26 Therefore, the judgment of the trial court
entering a continuous protective order against
Blaise Allyn Sanford is affirmed.
¶27 AFFIRMED.
BARNES, J., and THORNBRUGH, J., concur.
KEITH RAPP, PRESIDING JUDGE:
1. The parties presented the case to the trial court without a jury.
2. Section 60.4(G)(1) provides:
G. 1. Any protective order issued on or after November 1, 2012,
pursuant to subsection C of this section shall be:
Vol. 87 — No. 13 — 5/14/2016
a. for a fixed period not to exceed a period of five (5) years unless
extended, modified, vacated or rescinded upon motion by either
party or if the court approves any consent agreement entered
into by the plaintiff and defendant; provided, if the defendant is
incarcerated, the protective order shall remain in full force and
effect during the period of incarceration. The period of incarceration, in any jurisdiction, shall not be included in the calculation
of the five-year time limitation, or
b. continuous upon a specific finding by the court of one of the
following:
(1) the person has a history of violating the orders of any court or
governmental entity,
(2) the person has previously been convicted of a violent felony
offense,
(3) the person has a previous felony conviction for stalking as
provided in Section 1173 of Title 21 of the Oklahoma Statutes, or
(4) a court order for a final Victim Protection Order has previously been issued against the person in this state or another state.
Further, the court may take into consideration whether the person has a history of domestic violence or a history of other violent acts. The protective order shall remain in effect until modified, vacated or rescinded upon motion by either party or if the
court approves any consent agreement entered into by the
plaintiff and defendant. If the defendant is incarcerated, the
protective order shall remain in full force and effect during the
period of incarceration.
3. All of the parties owned guns because they compete in shooting
contests. Apparently, the family has a substantial number of guns, all
of which had been impounded. The trial court did not decide ownership in this case and reserved the ownership issue for decision in the
divorce case.
4. S.D. is Wife’s son and Husband’s stepson.
5. This protective order was not entered into evidence as a document or by judicial notice.
6. Tr. p. 75; Journal Entry, Record, p. 21.
7. See Marquette v. Marquette, 1984 OK CIV APP 25, 686 P.2d 990,
where the Court ruled that the remedy under the Protection From
Domestic Abuse Act was civil, not criminal, in nature.
8. Domestic violence is defined in the statute.
1. “Domestic abuse” means any act of physical harm, or the
threat of imminent physical harm which is committed by an
adult, emancipated minor, or minor child thirteen (13) years of
age or older against another adult, emancipated minor or minor
child who are family or household members or who are or were
in a dating relationship.
22 O.S.2011, § 60.1(1).
2016 OK CIV APP 21
IN THE MATTER OF THE ADOPTION OF
B.T.S., a Minor Child: TAMERA N. SMITH,
Appellant, vs. TERESA NIXON and
QUAHANA NIXON, Appellees.
Case No. 113,714. March 7, 2016
CHEROKEE COUNTY, OKLAHOMA
HONORABLE SANDY CROSSLIN,
TRIAL JUDGE
AFFIRMED AS CORRECTED
Maria Tasi Blakely, Hugo, Oklahoma and Charlie Rowland, ROWLAND LAW FIRM, PLLC,
Antlers, Oklahoma, for Appellant
Tim K. Baker, Kimberly N. Clark, TIM K.
BAKER & ASSOCIATES, Tahlequah, Oklahoma, for Appellees
DEBORAH B. BARNES, JUDGE:
951
¶1 Appellant Tamera N. Smith (Mother)
appeals from an Order of the trial court determining B.T.S. eligible for adoption without her
consent. Mother’s appeal raises questions of
law concerning deficiencies in the notice she
received from Appellees Teresa Nixon and
Quahana Nixon (collectively, Adoptive Parents) regarding their application for an order
determining B.T.S. eligible for adoption without her consent; the burden of proof applied by
the trial court in reaching its determination of
such eligibility; and the court’s lack of subject
matter jurisdiction to render a decision about
B.T.S.’s eligibility for adoption because another
Oklahoma district court in a different county
previously granted guardianship over B.T.S., a
guardianship that was ongoing at the time the
present proceedings were filed. We affirm the
Order as corrected.
BACKGROUND
¶2 B.T.S. was born on November 19, 2005, to
Mother and Jerrett Shields (Father), who were
unwed. Father is a member of the Chickasaw
Nation and all parties agree B.T.S. is an Indian
child as defined by state and federal law.
Tammy Smith is Mother’s mother and B.T.S.’s
maternal grandmother. On April 12, 2007,
Smith and Teresa Nixon, Mother’s aunt, were
appointed, with Mother’s consent, as B.T.S.’s
co-guardians in McCurtain County.
¶3 B.T.S. has lived with Adoptive Parents for
about eight years. On July 2, 2014, Adoptive
Parents filed a petition for adoption of B.T.S. in
Cherokee County, as well as an application for
an order terminating Mother’s and Father’s
parental rights, and an order determining
B.T.S. eligible for adoption without Mother’s
and Father’s consent. Adoptive Parents alleged,
pursuant to 10 O.S. 2011 § 7505-4.2(B) and (H)1
that Mother and Father failed to pay child support for twelve consecutive months out of the
last fourteen months preceding their petition
and failed to maintain a significant relationship
with B.T.S. for twelve consecutive months out
of the last fourteen months preceding the filing
of their petition for adoption. On that same
date, Adoptive Parents also filed a “Notice of
Hearing” to Mother, Father, and the Chickasaw
Nation. Return of summons was filed July 14,
2014, as to Mother, and August 4, 2014, as to
Father. The return of service to the Chickasaw
Nation was filed of record on April 15, 2015;
however, the return of service shows it was
served on July 7, 2014.
952
¶4 The trial court ordered a court-appointed
attorney for Mother. On October 23, 2014,
Mother filed her response to the applications
denying most of the allegations in the applications. Mother alleged as a “counterclaim” that
she filed a motion to have the co-guardianship
dismissed because she has rectified the conditions that led to the co-guardianship. She also
alleged she has maintained a relationship with
B.T.S. to the best of her ability and to the extent
allowed by the co-guardians, and that she has
contributed and continues to contribute to the
support of B.T.S. She also alleged the petition
contained a material misrepresentation; that is,
Quahana Nixon has never had legal custody of
B.T.S., only physical custody, because Ms.
Smith is the other co-guardian. Mother asked
the court not to terminate her parental rights
nor deem B.T.S. eligible for adoption without
her consent.
¶5 The court also appointed a guardian ad
litem who filed a report on September 10, 2014,
and filed a supplemental report on November
17, 2014, after interviewing Mother. The GAL
found, among other things, that B.T.S. was
thriving in the care of Adoptive Parents. The
supplemental report did not alter the GAL’s
original report that it would be in B.T.S.’s best
interests to determine B.T.S. eligible for adoption without Mother’s consent. According to
the supplemental report, Mother told the GAL
she suffered post-traumatic stress disorder, has
been diagnosed as bi-polar and schizophrenic,
and has had sporadic contact with B.T.S. during the guardianship period and had last seen
B.T.S. in June of 2014. The GAL also reported
Mother said she is engaged to a James Voss
who has been employed for twelve years. The
report states Mother and Voss live on his salary, her disability payments of $721 per month,
and food stamps.
¶6 A hearing was held on November 17,
2014, on the application to determine B.T.S.
eligible for adoption without Mother’s and
Father’s consent. Mother asserted a jurisdictional issue was presented because the guardianship was in place in a different county.
Mother argued Ms. Smith, the co-guardian,
was a necessary party in these proceedings
though she referred to no statutory or decisional law for the argument. Mother also
admitted the guardianship court was aware of
the present proceedings and was waiting to
rule on her petition to vacate the guardianship
pending the outcome of these proceedings. The
Vol. 87 — No. 13 — 5/14/2016
court found the co-guardian was not a necessary party in an adoption matter and overruled
Mother’s objection.
¶7 During the hearing, Father admitted he
had not maintained a relationship with B.T.S.
during the relevant period nor had he paid
child support in seven years. Father testified he
believed adoption was in B.T.S.’s best interests.
The court also heard the testimony of Mother
and Voss. Mother maintained she had given
money and purchased clothes and school supplies for B.T.S. during the relevant period, but
that these sums were given to her mother to
give to B.T.S. and Adoptive Parents. Mother,
however, failed to produce any records except
for one $100 check given during the relevant
period although she claimed to have the
records documenting other payments. Mother
and Voss also claimed Mother maintained a
relationship with B.T.S. during the two-week
period each summer that Ms. Smith had physical custody of B.T.S. though Mother was also
unable to produce more than a few pictures
that she testified showed B.T.S. at a swimming
pool in June 2014, three pictures of an Easter
2014 visit, and three pictures of a September
2013 get together. The court also heard the testimony of Adoptive Parents who disputed
Mother paid child support or otherwise provided gifts or clothing to B.T.S. during the relevant period and disputed Mother maintained
any meaningful relationship with B.T.S.
¶8 At the conclusion of the hearing, the trial
court announced Adoptive Parents had met
their burden as to Father and determined B.T.S.
eligible for adoption without Father’s consent.
As to Mother, the trial court noted “conflicting
evidence” was presented, but that it was presented with no evidence “that would rebut the
proof provided by” Adoptive Parents who by
clear and convincing evidence met their burden of proof.
¶9 The court filed its Order on March 27,
2015, in which the court found notice had been
provided pursuant to the provisions “of 10 O.S.
§ 29.1 and 10 O.S. § 7505-4.1 et seq.” and that it
had jurisdiction pursuant to 10 O.S. 2011 §
7502-1.1. The court further found Adoptive
Parents had had “physical custody” of B.T.S.
since April 12, 2007, by way of the guardianship order in McCurtain County. The court
found by clear and convincing evidence that
Mother’s and Father’s consent to the adoption
of B.T.S. was not required because they failed
to provide support for B.T.S or to maintain a
Vol. 87 — No. 13 — 5/14/2016
meaningful parental relationship with B.T.S.
during the relevant period and ordered B.T.S.
eligible for adoption without their consent.
¶10 Mother filed this appeal.2
STANDARD OF REVIEW
¶11 Questions of law are reviewed under a de
novo standard of review, without deference to
the trial court’s conclusion. In re A.N.O., 2004
OK 33, ¶ 3, 91 P.3d 646; Kluver v. Weatherford
Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081.
Statutory interpretation presents a question of
law. State v. Tate, 2012 OK 31, ¶ 7, 276 P.3d 1017.
“When making a determination of a child’s
eligibility for adoption without consent, an
appellate court will review issues of fact under
a clear and convincing standard.” In re Adoption of G.D.J., 2011 OK 77, ¶ 17, 261 P.3d 1159
(citation omitted). Additionally, “[t]he burden
is on the party seeking to adopt without consent to prove such adoption is warranted by
clear and convincing evidence. ‘Accordingly,
the decision of the trial court will not be disturbed unless it fails to rest on clear and convincing evidence.’” Id. (citation omitted).
ANALYSIS
I. Noncompliance with Oklahoma Indian Child
Welfare Act
¶12 Father is a member of the Chickasaw
Nation. Mother is non-Indian. However, it is
uncontested that B.T.S. is an Indian child and
that the provisions of the Federal Indian Child
Welfare Act, 25 U.S.C. §§ 1901-1963 (2012)
(ICWA), and the Oklahoma Indian Child Welfare Act, 10 O.S. 2011 §§ 40-40.9 (OICWA)
apply in this case. Pursuant to OICWA §
40.3(A), except in circumstances not herein relevant, “[OICWA], in accordance with [ICWA],
applies to all child custody proceedings involving any Indian child ….” Mother argues Adoptive Parents’ failure to comply with certain
notice provisions of OICWA deprived the trial
court of jurisdiction to determine B.T.S. eligible
for adoption without Mother’s consent.
¶13 Mother argues Adoptive Parents never
notified the United States Bureau of Indian
Affairs of their applications to determine B.T.S.
eligible for adoption and termination of Mother’s parental rights, as required by 10 O.S. 2011 §
40.4.3 Further, Mother argues the required
“notice” is something other than the “petitions”
and that notice requires particular information
including “[t]he child’s tribal affiliation[,] . . . [a]
953
statement that the appropriate tribe, as well as
the biological parents or ‘Indian custodians’
have the right to intervene in the proceedings,”
and a “statement that any biological parent, the
tribe, or the Indian custodians have the right to
transfer the proceeding to the tribal court of the
Indian child.”4 Mother claims that, on its face,
the “Notice of Hearing” sent to her was fatally
defective because, among other errors, it did not
notify her that the Chickasaw Nation had a right
to intervene, and she was not notified she had a
right to have the proceedings transferred to the
Chickasaw Nation tribal court.5 Mother asserts
lack of proper notice deprives the trial court of
subject matter jurisdiction and is an issue properly raised for the first time on appeal, citing
Halliburton v. Grothaus, 1998 OK 110, ¶ 10, 981
P.2d 1244.
¶14 Adoptive Parents do not contest Mother’s factual allegations and the record on appeal
reveals no notice was sent to the BIA nor did
Mother’s Notice of Hearing inform her that the
Chickasaw Nation could intervene or that she
could seek transfer of the proceedings to the
Chickasaw Nation tribal courts. The service of
process, however, states Mother was served
with the petition for adoption in which B.T.S.’s
tribal affiliation was asserted to be the Chickasaw Nation. The Notice of Hearing sent to the
Chickasaw Nation does contain the information required by § 40.4, including the language
pertinent to the biological parent. That notice
was filed of record on July 2, 2014, the same
day Mother’s Notice of Hearing was filed.
Mother has been represented by counsel
throughout these proceedings.
¶15 In Halliburton, the Oklahoma Supreme
Court stated the well-recognized rule that,
A district court judgment or order is facially void if, on an inspection of the judgment
roll, it is apparent that one or more of the
requisite jurisdictional elements — that of
the subject matter, in personam cognizance,
or the court’s power to render a particular
decision — is shown to have been absent.
Whenever absence of cognizance appears
on the face of the judgment roll, the judicial
act is void and subject to attack at any time.
Id. ¶ 10 (footnotes omitted). Mother, however,
offers no other decisional authority for her
position that the Order must be reversed
because the trial court had “no subject matter
jurisdiction.” Nevertheless, because fundamental parental interests are at stake in this
954
matter, we have undertaken our own review of
persuasive authority pertinent to the claims
raised by Mother.6
¶16 Mother bases her argument for reversal
on Adoptive Parents’ failure to follow the
notice requirements of OICWA, not ICWA. In
addressing her arguments, however, we find
instructive decisional law discussing the effect
of inadequate notice in cases involving ICWA
notice requirements as well as state notice
requirements.
¶17 In In re Adoption of Baby Girl B, 2003 OK
CIV APP 24, 67 P.3d 359, another Division of
this Court addressed, among other issues, the
effect of inadequate notice to both the father of
the child and the tribal nation pursuant to both
§ 1912 and § 40.4. The Court noted the language in § 1914 authorizing “any parent from
whose custody such child was removed” to
petition the court to vacate its decision upon a
showing of a violation of § 1912, among other
sections, and noted that the challenge before it
was to the notice given to the father and to the
nation. Father never had custody of the child,
but he also had had no notice of the child’s
birth or that he was the child’s father; once he
was so notified, he took steps to establish
paternity and provide support. The Court
determined ICWA and OICWA applied and
father was a parent for purposes of those acts.
The Court went on to determine the adequacy
of the notice provided to father and the nation,
and the effect of any inadequacies in the notice
provided on the trial court’s ruling.
¶18 In Baby Girl B, the father and the nation
argued the notice served upon father did not
comply with the provisions of § 40.4 because
the notice lacked the child’s tribal identification, a statement of rights, and advice regarding his right to counsel. Although father did
receive notice of the hearing on termination of
his parental rights — a hearing he ultimately
missed because he was lost and arrived after
the hearing had already concluded — the
Court found
the notice elements missing here clearly go
to more than the notice of time and date of
a hearing. Obviously, Father was not represented by chosen or appointed counsel at a
critical stage of these proceedings. No evidence
exists showing he had waived a right to
counsel. In fact, he testified that he believed
he was represented by Nation’s counsel, but
that was not the case at that time.
Vol. 87 — No. 13 — 5/14/2016
Id. ¶ 45 (emphasis added). Further, the Court
concluded: “Adoptive Parents . . . were under
an obligation to furnish adequate notice and
wholly failed to do so. They have not shown
any excuse for the failure to give adequate and
correct notice, nor any basis to excuse the failure
such as lack of prejudice.” Id. ¶ 46 (emphasis
added).
¶19 Under the facts presented, the Baby Girl B
Court found the inadequate notice as to father
required reversal of the termination order, but
also found that while notice to the nation was
defective, “the trial court’s decision not to
invalidate on this ground is not clearly error
because of the absence of prejudice to Nation.” Id.
¶ 54 (emphasis added).
¶20 Other jurisdictions have also considered
the effect of an absence of prejudice or lack of
harmful error in circumstances where notice
has been deficient as to a parent or a tribe pursuant to the notice requirements of ICWA and
state law requirements. For example, the Alaska Supreme Court discussed the effect of defective notice to an Indian parent in a termination
of parental rights case though the issue had
been raised for the first time on appeal. In In re
L.A.M., 727 P.2d 1057 (Alaska 1986), the Alaska
Supreme Court addressed the mother’s assertion that the mere publication of notice of the
parental rights termination proceeding failed
to comply with the notice requirements of the
ICWA § 1912(a), and Alaska’s Indian child welfare provisions. The court explained:
Unless it constitutes plain error, we ordinarily will not consider a claim of error if it
was not both argued in the trial court and
properly raised on appeal. In order for this
court to find plain error, the error must
affect substantive rights and be obviously
prejudicial. . . . “[P]lain error exists where
an obvious mistake has been made which
creates a high likelihood that injustice has
resulted.”
In re L.A.M., 727 P.2d at 1059 (citations omitted).
¶21 The Alaska Supreme Court found the
case before it to be such a case. The court reasoned:
The due process right to proper notice in a
parental rights termination proceeding is
so fundamental that justice requires us to
consider [mother’s] claim of defective
notice. Furthermore, the ICWA specifically
Vol. 87 — No. 13 — 5/14/2016
authorizes a parent to “petition any court
of competent jurisdiction to invalidate [a
termination of parental rights] upon a
showing that such action violated” certain
ICWA provisions, including the act’s notice
requirements. 25 U.S.C. § 1914. The guardian ad litem relies on this provision to argue
that [mother] has a right under federal law
to be heard on the defective notice issue
even though it was not raised below.
In re L.A.M., 727 P.2d at 1059 (footnote omitted). Although the Alaska court noted there
was little case law interpreting § 1914, the court
found the guardian ad litem’s interpretation to
be consistent with the broad purposes of ICWA
in promoting stability among Indian tribes and
families and with the section’s legislative history. Thus, the Alaska court concluded, because
the state failed to satisfy ICWA’s requirement
of notice by registered mail, the order terminating the mother’s parental rights required reversal “unless the procedural violation was harmless
because the mother had actual notice of the
termination hearing.” Id. at 1061 (emphasis
added). The court found on the record before it
that mother had no actual notice; therefore, the
court reversed the order of termination.
¶22 Though not addressing state law notice
requirements, other courts have similarly
addressed ICWA’s notice requirements with
reference to the parents or tribe’s actual notice
and participation in the proceedings. For
example, in In re H.A.M., 961 P.2d 716 (Kan.
App. 1998), the appellate court held the trial
court’s failure to give notice to the Chickasaw
Nation regarding a termination of parental
rights proceeding and to foster care placement
proceedings commenced prior to the termination proceedings did not require reversal of the
case where the tribe ultimately became involved
in the proceedings. In response to the parents’
argument on appeal that the failed notice
requirements required reversal of the termination order, the In re H.A.M. court held:
Considering the Chickasaw Nation’s
involvement in this case, albeit belated,
there was substantial compliance with the
ICWA purpose of involving the tribe in the
child care proceedings. Of great importance is the apparent belief by the Chickasaw Nation that the trial court remedied
the initial failure to give notice with its
subsequent actions.
955
Id. at 720. See also In re J.J.G., 83 P.3d 1264 (Kan.
App. 2004), disapproved on other grounds in
In re B.D-Y., 187 P.3d 594, 606 (Kan. 2008)
(Appellate court found the tribe’s actual participation in all custody proceedings regarding
the child, including scheduling for the termination proceedings, rendered father’s notice
argument unpersuasive.).
¶23 In none of these decisions were inadequacies in the notice requirements of § 1912 or
§ 40.4 determined to be jurisdictional deficiencies as argued by Mother, but rather procedural deficiencies which could be raised for the
first time on appeal; however, we review errors
in notice deficiencies for prejudice. “Absent a
showing of prejudice, any error is harmless
and an insufficient basis for reversal.” E&F Cox
Family Trust v. City of Tulsa, 2013 OK CIV APP
45, ¶ 34, 302 P.3d 1168 (citations omitted).
As to alleged errors, not inherently prejudicial, the test of prejudice is: “The likelihood
that the verdict would have been different
had they not occurred as measured by the
usual criterion of the verdict’s support in
the evidence.” Karriman v. Orthopedic Clinic, 1973 OK 141, ¶ 21, 516 P.2d 534, 540.
Error does not require reversal unless
examination of the entire record discloses
that miscarriage of justice probably has
resulted, or that there was a violation of
statutory or constitutional rights. Falletti v.
Brown, 1971 OK 18, ¶ 8, 481 P.2d 744, 746.
Malloy v. Caldwell, 2011 OK CIV APP 26, ¶ 18,
251 P.3d 183.
¶24 The record indicates Mother had notice
of her rights to intervene and to seek removal
of the proceeding to the Chickasaw Nation
tribal courts. She did not receive this notice
from Adoptive Parents as required under §
40.4, but the notice of hearing sent to the Chickasaw Nation is in the record and was filed the
same day Mother’s defective notice was filed.
Unlike the father in Baby Girl B, Mother was
represented by counsel at all critical stages of
this proceeding and Mother has fully participated in these proceedings. The contents of the
record were plainly available to her. Mother
has thus failed to explain how she was prejudiced by the defective notice.
¶25 Further, as argued by Adoptive Parents,
Mother has failed to demonstrate how the outcome of the proceeding would have been different had she received proper notice from
them, although she poses rhetorical questions
956
about whether she would have asked the
Chickasaw Nation to intervene or whether she
would have sought transfer to its tribal courts.
Although the July 17, 2014 return receipt of
service from the Chickasaw Nation was belatedly entered of record, Mother does not dispute that the Chickasaw Nation had proper
notice prior to the originally scheduled September 11, 2014 hearing. That hearing was then
continued to November 17, 2014. The Chickasaw Nation declined to intervene in the matter
or seek transfer of the proceedings to its tribal
courts.7 Thus, Mother offers nothing to demonstrate that removal could or would have
occurred even if she sought it.
¶26 Moreover, as previously noted, Mother
was represented by court-appointed counsel.
On July 2, 2014, Adoptive Parents filed their
petition for adoption and their applications for
an order determining B.T.S. eligible for adoption without the consent of his natural parents
and order terminating the parental rights of the
natural parents. According to the trial court’s
docket, on July 14, 2014, affidavit of service
was filed showing Mother had been served,
and, according to the trial court’s docket,
Mother was appointed legal counsel on August
4. Also according to the docket, on September
22, a motion was made to continue the hearing
and the court entered its order and notice of
hearing on November 17, 2014. On October 23,
2014, Mother, through her legal counsel, filed
her response to Adoptive Parents’ petition and
applications, and was represented by counsel
at the November 11 hearing on Adoptive Parents’ application to determine B.T.S. eligible for
adoption without Mother’s consent. Thus, our
review of the record fails to disclose any prejudice or miscarriage of justice to Mother.
¶27 We also agree with Adoptive Parents
that their failure to notify the BIA as required
by § 40.4 was likewise without prejudice to
Mother. It is unquestioned B.T.S. is an Indian
child and member of the Chickasaw Nation.
See 10 O.S. 2011 § 40.3(D)(E). No question is
thus presented here about B.T.S.’s status that
would require some determination by the BIA.
No other tribal affiliation for B.T.S. has been
asserted that would require some action in
these proceedings by the BIA. Moreover, the §
40.4 notice to the BIA only states the parents,
Indian custodian, and tribe have a right to
intervene, not that the BIA has a right to intervene in voluntary or involuntary child custody
proceedings.
Vol. 87 — No. 13 — 5/14/2016
¶28 We do not condone Adoptive Parents’
failure to follow the notice requirements of
OICWA particularly because that failure calls
into question the rights of parents and Indian
tribes and protracts the proceedings involving
their rights and the custody and placement of
children. It is in the interests of all to get it right
the first time. However, where, as here, the
record does not demonstrate the deficiencies
resulted in prejudice to Mother, we will not
reverse the trial court’s judgment.
II. Required Burden of Proof
¶29 Mother does not argue the trial court
erred in finding by clear and convincing evidence that B.T.S. is eligible for adoption without her consent. Instead, she argues the trial
court applied the wrong standard of proof for
the evidentiary requirements of ICWA and
OICWA, in particular ICWA § 1912(f) which
provides:
Parental rights termination orders; evidence; determination of damage to child
No termination of parental rights may be
ordered in such proceeding in the absence
of a determination, supported by evidence
beyond a reasonable doubt, including testimony of qualified expert witnesses, that
the continued custody of the child by the
parent or Indian custodian is likely to
result in serious emotional or physical
damage to the child.
Thus, Mother argues the heightened burden of
proof beyond a reasonable doubt should have
been applied. Moreover, Mother argues no
“qualified expert witness” testified and “[n]
owhere in the transcript is B.T.S.’s emotional
and/or physical well-being discussed in the
manner envisioned by § 1912(f).” We disagree
with Mother’s arguments.
¶30 As argued by Adoptive Parents, the present case does not involve a circumstance in
which the child was in the custody of the parent. B.T.S. has not been in Mother’s custody for
eight years. Moreover, the present appeal concerns B.T.S.’s eligibility for adoption without
Mother’s consent, not termination of her parental rights. Section 1912(f) does not apply; thus,
the heightened standard it requires does not
apply.8 “When making a determination of a
child’s eligibility for adoption without consent,
an appellate court will review issues of fact
under a clear and convincing standard.” In re
Adoption of G.D.J., 2011 OK 77, ¶ 17, 261 P.3d
Vol. 87 — No. 13 — 5/14/2016
1159 (citation omitted). In G.D.J., the Oklahoma
Supreme Court explained:
[O]nly in a termination case of a putative
father’s parental rights, can a trial court
simultaneously find consent is unnecessary, and terminate such rights. This is
distinguished from a determination that a
child is eligible for adoption without consent, which does not terminate parental
rights.
Section 1912 of the ICWA requires the use
of a “beyond a reasonable doubt” standard
of proof, for certain purposes, in a proceeding to terminate parental rights. As discussed above, our statutes prohibit a trial
court from taking any action that results in
a termination of the parent-child relationship in a proceeding to determine a minor
child eligible for adoption without the consent of a natural parent. Therefore, a “clear
and convincing” standard of proof is all
that is necessary in such a proceeding. The
higher standard of proof is relevant to the
specific determination, the continued custody of the child by the parent or Indian
custodian, is likely to result in serious emotional or physical damage to the child. The
hearing on the petition for adoption, which
has not occurred in the present case, will be
a proceeding which may result in the termination of a parent-child relationship, and is
the only proceeding in which the court may
grant a final decree of adoption. At the hearing on the petition for adoption, evidence
relevant to matters included in subsection (f)
of Section 1912 must be proven “beyond a
reasonable doubt” in order to support a
determination that parental rights should be
terminated, including the testimony of an
expert witness.
In re G.D.J., ¶¶ 35-36. See also In re J.S., 2008 OK
CIV APP 15, ¶ 4, 177 P.3d 590 (heightened
beyond a reasonable doubt standard of proof
absent from the language of § 1912(d) and
applies only to factual determination required
by 1912(f) to be made in ICWA termination
cases; lesser standard of clear and convincing
evidence applicable to all other state law
requirements for termination).
¶31 Similarly, because § 1912(f) does not apply
under the facts of this case, expert testimony
that the continued custody of B.T.S. by Mother is
likely to result in serious emotional or physical
damage to B.T.S. was not required.9
957
¶32 We therefore conclude the trial court did
not err in applying a clear and convincing standard of proof.
in dealing with similar intra-state problems,”
and cites, by way of example, to 43 O.S. 2011 §
103(D).11
III. Applicability of Oklahoma’s Uniform Child
Custody Jurisdiction and Enforcement Act
¶35 Mother concedes the purpose of UCCJEA
“is to avoid jurisdictional conflict between
courts of different states,” citing Barnett v. Klein,
1988 OK 132, ¶ 12, 765 P.2d 777 (discussing
predecessor Uniform Child Custody Jurisdiction Act (UCCJA), 43 O.S. §§ 501-527, repealed
effective November 1, 1998) (emphasis added)).12
See also Wood v. Redwine, 2001 OK CIV APP 115,
¶ 14, 33 P.3d 53 (“The jurisdictional provisions
of [UCCJA] and, by implication, the successor
provisions of [UCCJEA] seek to assure that litigation regarding custody of a child take place
in the state with which the child and his family
have the closest connection and where significant evidence concerning care and protection is
readily available in order to provide a continuing stable environment for children.”) (emphasis omitted) (citation omitted); and 43 O.S. 2011
§ 551-401 (“In applying and construing
[UCCJEA], consideration must be given to the
need to promote uniformity of the law with
respect to its subject matter among states that
enact it.”). Nonetheless, Mother contends
UCCJEA should be interpreted to have an
intrastate purpose.
¶33 Mother argues the trial court was without subject matter jurisdiction to determine
whether B.T.S. was eligible for adoption without her consent because at the time the application was made, guardianship over B.T.S. had
been granted in 2007 in another county and
was continuing. She argues the trial court erred
in overruling her “position that the proper
jurisdiction for the adoption would be in” the
county where the guardianship was granted.
Mother’s argument is based on what she contends is the proper interpretation of Oklahoma’s Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), 43 O.S. 2011 §§
551-101 through 551-402 as it relates to 10 O.S.
2011 § 7502-1.1. Section 7502-1.1 provides:
Jurisdiction over proceedings to terminate
parental rights and proceedings for the
adoption of a minor commenced pursuant
to the Oklahoma Adoption Code shall be
governed by the Uniform Child Custody
Jurisdiction and Enforcement Act as provided in Sections 551-101 through 551-402
of Title 43 of the Oklahoma Statutes.
Pursuant to UCCJEA § 551-202,10 Mother
argues, the court with exclusive jurisdiction
over the custody of B.T.S. is the guardianship
court.
¶34 Mother does not argue there is ambiguity in some provision of UCCJEA or § 7502-1.1;
rather, she argues the plain language of § 75021.1 requires the conclusion that the jurisdiction
requirements of UCCJEA apply to proceedings
for the termination of parental rights and
adoption of a minor child filed under the Oklahoma Adoption Act, and that it would be nonsensical to interpret UCCJEA in such cases to
apply only to interstate adoption jurisdiction
disputes. Because, she argues, UCCJEA vests
the court in the guardianship proceeding with
exclusive jurisdiction and UCCJEA applies to
termination of parental rights and adoption
proceedings, Mother argues this Court must
interpret UCCJEA such that wherever the word
“state” appears, the word “county” must be
inserted. She contends, “Even though [UCCJEA] was meant to deal with interstate issues,
many states, including Oklahoma, have decided that its guidelines would also be effective
958
¶36 Mother’s policy argument may not be
wholly without merit. She argues the effective
administration of justice and use of court
resources, the use of litigant resources, and the
best interests of a child might be served in
adoption proceedings by rewriting UCCJEA
such that wherever the word state appears,
county should be inserted.13 However, those
and any other policy considerations and any
revision of UCCJEA that might ensue are considerations and actions properly exercised by
the Legislature and not this Court.
¶37 In Oklahoma, the judiciary lacks the
power to rewrite a statute merely because the
legislation does not comport with our or with
an appealing party’s concept of prudent public
policy.
The powers of the government of the State
of Oklahoma shall be divided into three
separate departments: The Legislative,
Executive, and Judicial; and except as provided in this Constitution, the Legislative,
Executive, and Judicial departments of
government shall be separate and distinct,
and neither shall exercise the powers properly belonging to either of the others.
Vol. 87 — No. 13 — 5/14/2016
Okla. Const. Art. 4, § 1. The Oklahoma Supreme
Court has stated: “In absence of a constitutional defect, we are duty bound to give effect
to legislative acts, not to amend, repeal, or circumvent them. We will not exercise authority
not vested in this Court by rewriting statutes
merely because the legislation does not comport with our concept of prudent public policy.” Coates v. Fallin, 2013 OK 108, ¶ 2, 316 P.3d
924 (citations omitted). The Supreme Court has
further stated: “[T]he wisdom of choices made
within the Legislature’s law-making sphere are
not our concern, because those choices —
absent constitutional or other recognized infirmity — rightly lie within the legislative
domain.” Duncan v. Okla. Dep’t of Corr., 2004
OK 58, ¶ 5, 95 P.3d 1076 (citation omitted).
¶38 Adoptions are not subject to UCCJEA §
551-103 and we agree with Mother that § 75021.1 specifically states adoption proceedings
commenced pursuant to The Oklahoma Adoption Code are.14 But, nothing in § 7502-1.1 states
that UCCJEA, in such proceedings, applies to
intrastate adoption proceedings. Clearly, as
Mother herself points out, the Legislature is
fully aware of the provisions of UCCJEA it has
determined that courts should consider for
venue matters in intrastate divorce actions. See,
e.g., 43 O.S. 2011 § 103(D). It did not include
similar language in § 7502-1.1 and nothing
stated in that statute evinces a legislative intent
to expand UCCJEA to purely intrastate adoption proceedings.
¶39 Consequently, we decline to usurp the
Legislature’s power to rewrite statutes and we
find no legislative intent on the face of § 75021.1 or the provisions of UCCJEA to conclude
the Legislature intended UCCJEA to apply to
intrastate adoption proceedings. Therefore, we
conclude the trial court was not without jurisdiction to determine B.T.S. eligible for adoption
without Mother’s consent and did not err in
entering its Order.
IV. Correction of Order
¶40 Although she has failed to assert the
issue in her appellate brief, in her application
to the Supreme Court to convert her petition to
assume original jurisdiction to a direct appeal,
Mother asserts the Order is “fatally defective”
on its face because it fails to “address the
requirements of [ICWA and OICWA] in its
findings of fact and conclusions of law.” Mother had been directed by the Supreme Court to
file a petition in error, and while she did so, she
Vol. 87 — No. 13 — 5/14/2016
did not attach to it a statement of the issues to
be raised on appeal. Her original petition in
error did contain such a statement, but that
statement did not include an issue about a
“fatal defect” in the Order. Mother did not reference any authority for her assertion that the
absence of any reference to ICWA and OICWA
in the Order renders it fatally defective. Because
no one contests B.T.S.’s status as an Indian
child, the trial court’s failure to make a finding
of his status in the Order and, thus, that the
provisions of ICWA and OICWA apply to these
proceedings, while an error, is correctable.
Thus, we modify and correct the Order to
include the following: “B.T.S. is a member of
the Chickasaw Nation and as such the provisions of the Federal Indian Child Welfare Act,
25 U.S.C. §§ 1901-1963 (2012), and the Oklahoma Indian Child Welfare Act, 10 O.S. 2011 §§
40-40.9, apply in this case.”
V. Request for Appeal-related Attorney Fees
¶41 Mother has requested in her appellate
brief appeal-related attorney fees and costs.
Her request does not comply with the requirements of Oklahoma Supreme Court Rule 1.14,
12 O.S. Supp. 2013, ch. 15, app. 1, and is denied.
CONCLUSION
¶42 Based on the applicable law and facts,
we conclude the trial court properly exercised
jurisdiction over this adoption proceeding, and
although Adoptive Parents did not fully comply with the notice provisions of OICWA,
Mother — who raised these notice deficiencies
for the first time on appeal — had notice of her
rights, fully participated in the proceedings,
and was represented by counsel at all critical
stages of the proceedings. We therefore conclude the error was harmless and the trial court
properly determined the issue of whether
B.T.S. was eligible for adoption without the
consent of Mother. We further conclude the
trial court applied the correct clear and convincing evidentiary standard in reaching the
determination that B.T.S. was eligible for adoption without Mother’s consent. Further, we
decline Mother’s request that we exercise the
Legislature’s power to rewrite statutes and we
find no legislative intent on the face of § 75021.1 or the provisions of UCCJEA to conclude
the Legislature intended UCCJEA to apply to
intrastate adoption proceedings. We further
conclude, however, because B.T.S. is an Indian
child and the trial court properly applied the
applicable provisions of ICWA and OICWA, the
959
Order should be corrected to identify B.T.S. as a
member of the Chickasaw Nation and to state
that the provisions of ICWA and OICWA apply
to this case. Finally, we deny Mother’s request
for appeal-related attorney fees and costs.
Accordingly, we affirm the Order as corrected.
¶43 AFFIRMED AS CORRECTED.
THORNBRUGH, P.J., and RAPP, J., concur.
1. Section 7505-4.2 provides, in part, as follows:
B. Consent to adoption is not required from a parent who, for a
period of twelve (12) consecutive months out of the last fourteen
(14) months immediately preceding the filing of a petition for
adoption of a child . . . has willfully failed, refused, or neglected
to contribute to the support of such minor:
....
2. According to such parent’s financial ability to contribute to
such minor’s support if no provision for support is provided in
an order. . . .
....
H. 1. Consent to adoption is not required from a parent who fails
to establish and/or maintain a substantial and positive relationship with a minor for a period of twelve (12) consecutive months
out of the last fourteen (14) months immediately preceding the
filing of a petition for adoption of the child.
2. Father has not appealed. Mother filed an Application to Assume
Original Jurisdiction, Application for Stay, Petition for Writ of Prohibition, and Petition for Writ of Mandamus with the Oklahoma Supreme
Court and a brief in support. A hearing had been scheduled, but at
Mother’s request, the hearing was stricken and Mother was ordered to
inform the Supreme Court whether she intended to pursue the appeal
or be dismissed. Mother then filed a petition to convert the case to a
direct appeal pursuant to Oklahoma Supreme Court Rule 1.23(d). The
Supreme Court granted her application to convert in part by allowing
the cause to be recast as an appeal from a final order pursuant to Rules
1.23(d), 1.10(c)(3) and 1.34(e), but denied Mother’s request to excuse
her from filing a petition in error and designation of record. She was
also directed to seek in the district court her request for waiver of district court fees.
3. That section provides as follows:
In all Indian child custody proceedings of [OICWA], including
voluntary court proceedings and review hearings, the court shall
ensure that the . . . person initiating the proceeding shall send
notice to the parents or to the Indian custodians, if any, and to the
tribe that is or may be the tribe of the Indian child, and to the
appropriate Bureau of Indian Affairs area office, by certified mail
return receipt requested. The notice shall be written in clear and
understandable language and include the following information:
1. The name and tribal affiliation of the Indian child;
2. A copy of the petition by which the proceeding was initiated;
3. A statement of the rights of the biological parents or Indian
custodians, and the Indian tribe:
a. to intervene in the proceeding,
b. to petition the court to transfer the proceeding to the tribal
court of the Indian child, and
c. to request an additional twenty (20) days from receipt of notice
to prepare for the proceeding; further extensions of time may be
granted with court approval;
4. A statement of the potential legal consequences of an adjudication on the future custodial rights of the parents or Indian custodians;
5. A statement that if the parents or Indian custodians are unable
to afford counsel, counsel will be appointed to represent them;
and
6. A statement that tribal officials should keep confidential the
information contained in the notice.
(Emphasis added.)
4. Br-in-chief at 5.
5. Although Mother asserts the OICWA notice requirements were
not followed, she also references the ICWA notice requirement found
in § 1912, which provides, in part, as follows:
(a) Notice; time for commencement of proceedings; additional
time for preparation
960
In any involuntary proceeding in a State court, where the court
knows or has reason to know that an Indian child is involved, the
party seeking the . . . termination of parental rights to an Indian
child shall notify the parent or Indian custodian and the Indian
child’s tribe, by registered mail with return receipt requested, of
the pending proceedings and of their right of intervention. If the
identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the
Interior] in like manner, who shall have fifteen days after receipt to
provide the requisite notice to the parent or Indian custodian and
the tribe. No foster care placement or termination of parental
rights proceeding shall be held until at least ten days after receipt
of notice by the parent or Indian custodian and the tribe or the
Secretary[.]
(Emphasis added.)
6. While we have found no Oklahoma Supreme Court cases
addressing the precise issue here raised concerning § 1912 and OICWA
§ 40.4, in Cherokee Nation v. Nomura, 2007 OK 40, 160 P.3d 967, the Oklahoma Supreme Court discussed the required § 40.4 notice to Indian
tribes regardless of whether the child custody proceedings are voluntary or involuntary. Having determined notice had not been given to
the tribe, the Supreme Court observed: “Under the circumstances of
this case, no attempt whatsoever was made to involve the Tribe in the
placement of the child. Agency’s allegations that the Tribe was given
notice and intervened in Florida are hollow attempts to justify the
actions taken after the judgment was entered.” Id. ¶ 29 (emphasis added).
While we do not construe this statement as a holding by the Supreme
Court that defective notice under § 40.4 can be cured by actual involvement or notice prior to entry of judgment, the Court’s statement indicates it has not precluded that conclusion.
This conclusion finds further support from the Supreme Court’s
reasoning in In re Adoption of R.R.R., 1988 OK 109, 763 P.2d 94. There a
grandmother sought to adopt the minor child because the child was
living with her and the parents had not supported the child in over a
year. The mother could not be located and was served by publication,
but the father had actual notice and filed a motion for summary judgment on grounds not here pertinent, which the trial court granted. The
Supreme Court reversed the grant of summary judgment and remanded the case for new trial. The child was a member of the Kiowa Tribe
and the tribe, along with the BIA, had been notified of the adoption
proceeding. The tribe filed a motion to intervene; however, the record
revealed it did not have notice of the summary judgment hearing. In
determining that the tribe on remand for a new trial was not precluded
from seeking transfer to its tribal courts, the Oklahoma Supreme Court
reasoned:
In compliance with [OICWA] § 40.4, the Kiowa Tribal Office and
the area office of the Bureau of Indian Affairs were notified. The
Kiowa Tribe filed a motion to intervene, but it did not request
removal to a tribal court nor did it participate in any subsequent
proceedings. (Neither the Tribe nor the Bureau of Indian Affairs
were given notice of the November 1, 1985 hearing. This would
invalidate those proceedings in so far as the Tribe’s interest is
concerned.)
1988 OK 109, ¶ 17 (footnotes omitted). The Supreme Court specifically noted the trial court’s minute stated the Kiowa Tribe was not
present for the hearing and had received no notice of the hearing. In
the present case, Mother had notice — albeit not in full conformity
with OICWA § 40.4 — of the pre-adjudicatory proceedings, was represented by counsel, fully participated in the hearing, and had access to
the filings in the record.
In fact, the circumstances here — where the issue is for the first
time presented on appeal — are not unlike those addressed by the
Supreme Court in In re N.L., 1988 OK 39, 754 P.2d 863, where a mother
challenged the sufficiency of the notice under OICWA of a pre-adjudication order because the emergency custody order did not contain the
requisite affidavits required by § 40.5. Because the mother had not
raised those issues at the trial level, the Supreme Court said it could
not review those issues on appeal. In re N.L., ¶ 8. The Supreme Court
reasoned:
No motion or argument appears in the trial court record questioning the statutory sufficiency of the amended petition. Similarly, no motion or argument was addressed to the trial court
attacking the temporary custody orders for lack of a hearing
pursuant to 10 O.S. Supp. 1984 § 1104.1. No reference to 25 U.S.C.
§ 1922 appears in the trial court record before us.
A party may not assign errors on appeal which were not presented
to the trial court.
The misapplication of 10 O.S. Supp. 1984 § 1104.1, 10 O.S. Supp.
1982 § 40.5, 25 U.S.C. § 1922 does not defeat the jurisdiction of the trial
court.
Vol. 87 — No. 13 — 5/14/2016
In re N.L., ¶¶ 9-11 (citations omitted) (footnote omitted). As to the
jurisdictional issue, the Court stated:
The trial court’s jurisdiction includes the jurisdiction over the
parties, jurisdiction over the subject matter, and jurisdictional
power to pronounce the particular judgment rendered. Jurisdiction over the subject matter occurs upon the filing of the petition.
10 O.S. 1981 § 1102. The mother appeared with counsel in the
proceedings. The trial court has jurisdictional power to specify
the appropriate conduct for a parent. 10 O.S. Supp. 1982 § 1116.
In re N.L., ¶ 11 n.2 (citation omitted). The Court concluded:
The mother’s allegations of error that the trial court failed to follow 25 U.S.C. § 1922, 10 O.S. Supp. 1982 § 40.5, and 10 O.S. Supp.
1984 § 1104.1, do not come within exceptions to the general rule
that allegations of error must be presented to the trial court.
Therefore, they are beyond the scope of our review on appeal.
In re N.L., ¶ 13.
7. Adoptive Parents assert in their appellate brief that on July 28,
2014, the Chickasaw Nation responded “via letter, confirming
[Father’s] Certificate of Degree of Indian Blood (CDIB), and indicating
it was the practice of the Chickasaw Nation not to intervene in family
matters, such as family adoption. To date, the Chickasaw Nation has
never sought to intervene in this matter.” The referenced letter is not
part of the record and, thus, no evidence has been presented about
what the Chickasaw Nation’s “practice” is or is not in family adoptions. However, the record on appeal confirms Adoptive Parents’
assertion that the Chickasaw Nation has not intervened in this matter.
8. See e.g., In re Adoption Couple v. Baby Girl, 133 S. Ct. 2552 (2013),
wherein the Supreme Court of the United States observed:
Section 1912(f) addresses the involuntary termination of parental
rights with respect to an Indian child. Specifically, § 1912(f) provides that “[n]o termination of parental rights may be ordered in
such proceeding in the absence of a determination, supported by
evidence beyond a reasonable doubt, . . . that the continued custody of the child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child.”
Id. at 2560.
9. Mother does not argue on appeal that clear and convincing evidence failed to support the trial court’s determination; however, our
review of the record and the transcript reveals the Order is supported
by clear and convincing evidence. “Clear and convincing evidence” is
defined as “that measure or degree of proof which will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the
allegation sought to be established.” In re C.G., 1981 OK 131, ¶ 17 n.12,
637 P.2d 66 (citations omitted). We further note, as stated by the Oklahoma Supreme Court in White v. Adoption of Baby Boy D, 2000 OK 44,
10 P.3d 212: “Although the veracity of the parties’ testimony before the
trial judge was called into question and conflicting testimony abounded, we are confident in the advantage given the trial judge to determine witnesses’ credibility.” Id. ¶ 36 (citation omitted). The Supreme
Court further explained: “The trial judge, by being confronted with the
parties and the witnesses, was in a much better position to assess the
credibility of those witnesses than is this Court from ‘the dry, printed
words in the record.’” Id. (citation omitted).
10. Section 551-202 provides:
A. Except as otherwise provided in [§ 551-204 temporary emergency custody] of this act, a court of this state which has made a
child custody determination consistent with [§ 551-201initial
child custody jurisdiction] or [§ 551-203 jurisdiction to modify
determination] of this act has exclusive, continuing jurisdiction
over the determination until:
1. A court of this state determines that neither the child, the child
and one parent, nor the child and a person acting as a parent
have a significant connection with this state and that substantial
evidence is no longer available in this state concerning the child’s
care, protection, training, and personal relationships; or
2. A court of this state or a court of another state determines that
the child, the child’s parents, and any person acting as a parent
do not presently reside in this state.
11. Section 103, entitled “Venue for any action for divorce, annulment of a marriage, or legal separation,” provides, in part, as follows:
D. The court shall grant a party’s application for change of venue
when the court determines that it is an inconvenient forum
under the circumstances and the court in another county is a
more appropriate forum consistent with the factors in subsection B
of Section 551-207 of the Uniform Child Custody Jurisdiction and
Enforcement Act after substitution of the word “county” for the
word “state” in such section of the act, and transfer is requested
to the county where the applying party resides in the state.
(Emphasis added.)
12. The Barnett Court further stated, “Language involving intrastate jurisdictional and venue disputes is conspicuously absent [from
Vol. 87 — No. 13 — 5/14/2016
the statute]. The legislature having not seen fit to make the Act apply
in purely intrastate controversies, we acknowledge that it does not
apply in this case.” Id.
13. We note, however, in the present case, Mother concedes the
guardianship court was aware of this proceeding and determined to
wait to rule on Mother’s petition to vacate the guardianship pending
the decision in this proceeding. Thus, judicial economy has been
served in this case.
14. In fact, § 7502-1.1 is consistent with the Official Comment to §
551-103, which states:
Two proceedings are governed by other acts. Adoption cases are
excluded from this Act because adoption is a specialized area
which is thoroughly covered by the Uniform Adoption Act
(UAA) (1994). Most States either will adopt that Act or will adopt
the jurisdictional provisions of that Act. Therefore the jurisdictional provisions governing adoption proceeding are generally
found elsewhere.
2016 OK CIV APP 22
FIRST NATIONAL BANK IN MARLOW,
OKLAHOMA, Plaintiff/Appellee vs. DAVID
W. BICKING and TAMMY M. BICKING,
Defendants/Appellants.
Case No. 113,741. December 30, 2015
STEPHENS COUNTY, OKLAHOMA
HONORABLE DENNIS GAY, TRIAL JUDGE
FURTHER PROCEEDINGS
Jeffery K. Archer, HAMMOND, ARCHER &
KEE, PLLC, Duncan, Oklahoma, for Plaintiff/
Appellant
Tyler C. Johnson, LEGAL AID SERVICES OF
OKLAHOMA, INC., Lawton, Oklahoma, for
Defendants/Appellants
JERRY L. GOODMAN, VICE-CHIEF
JUDGE:
¶1 In this foreclosure action, David W. Bicking and Tammy M. Bicking (Homeowners)
appeal a February 17, 2015, order denying their
motion for new trial seeking reconsideration of
a December 9, 2014, journal entry which denied
their motion for summary judgment and granted The First National Bank in Marlow, Oklahoma’s (Bank) counter-motion for summary
judgment. This appeal proceeds under Oklahoma Supreme Court Rule 1.36, 12 O.S.2011,
ch. 15, app.1, without appellate briefing. After
review of the record on appeal, we reverse the
trial court’s order denying reconsideration of
the December 9, 2014, journal entry and remand
for further proceedings consistent with this
opinion.
BACKGROUND
¶2 On March 1, 2011, Homeowners executed
a promissory note secured by a mortgage in
961
favor of Bank with a principal amount of
$47,516.00, at an interest rate of 8.380% per
annum with a one (1) year repayment term.
The promissory note had repayment terms of
eleven (11) regular payments of $586.40 per
month, and a final, irregular balloon payment
of $44,939.28. Tammy Bicking signed her and
her husband’s, David Bicking, name on an
amended note on March 20, 2012. The amended note extended the original loan for one (1)
year with similar repayment terms and reduced
the interest rate to 7.5%.
¶3 Homeowners defaulted on the loan and
Bank filed suit to foreclose the note and mortgage on April 17, 2013. Homeowners answered,
disputing the issue of default. Homeowners
further filed a counterclaim, asserting violations of the Truth in Lending Act (TILA), the
Homeownership and Equity Protection Act
(HOEPA), the Oklahoma Consumer Credit
Code (OCCC), the Oklahoma Consumer Protection Act (OCPA), as well as fraud.
¶4 On June 17, 2014, Homeowners filed a
motion for summary judgment, asserting the
note and mortgage were in violation of the
TILA, HOEPA, that Bank failed to provide
material disclosures as required by the TILA
and the OCCC, and that Bank acted unethically
and contrary to public policy. More specifically,
Homeowners asserted Bank issued them a
“high cost” mortgage loan that contained terms
contrary to the substantive prohibitions contained in the HOEPA; that Bank failed to provide required disclosures under the TILA and
the OCCC in a timely manner; and Bank’s
actions were unethical, contrary to public policy, and substantially injurious to consumers in
violation of the OCPA.
¶5 Bank responded, generally asserting
Homeowners’ assertions were barred by the
statute of repose proscribed by HOEPA, 15
U.S.C. §§ 1629, 1640(e). In addition, although
Bank acknowledged that the initial mortgage
loan was a “high cost” loan, it asserted the
amended note’s interest rate was in full compliance with federal and state law. Bank further
maintained all required disclosures were timely
given to Homeowners. Finally, Bank asserted
Homeowners’ loan was for a business purpose
and therefore it was exempt from the requirements of the TILA. Bank also filed a countermotion for summary judgment, seeking foreclosure and judgment on Homeowners’ fraud
counterclaim.
962
¶6 After additional briefing and a hearing
before the trial court on November 12, 2014,
the trial court denied Homeowners’ motion for
summary judgment, finding Homeowners’
note was exempt under the TILA, HOEPA,
OCCC, and OCPA because the primary purpose of the loan was for a business purpose. In
the alternative, the court found the note, as
amended in March of 2012, did not qualify as a
“high cost” mortgage. Thus, the TILA, HOEPA,
OCCC, and OCPA provisions were not triggered and Homeowners had no claims under
these Acts. With respect to the fraud claim, the
trial court found there was no basis in fact for
a fraud claim. With regard to the foreclosure
action, the trial court granted Bank’s countermotion for summary judgment, granting Bank
a judgment against Homeowners in the amount
of $45,086.03 with interest, expenses, and an
attorney’s fee.
¶7 On December 18, 2014, Homeowners filed
a motion for new trial, asserting the trial court
erred: 1) in finding the primary purpose of the
mortgage loan was for a business purpose; 2)
in finding the amended note was valid and
binding on the parties; and 3) in finding, even
if the amended note was valid, that the violations of the TILA and HOEPA were remedied
by the amended note. By order filed on February 17, 2015, the trial court denied Homeowners’ motion for new trial. Homeowners appeal.
STANDARD OF REVIEW
¶8 A motion to reconsider, if filed within ten
(10) days of the order, is the functional equivalent of a motion for new trial. Strubhart v. Perry
Mem’l Hosp. Trust Auth., 1995 OK 10, ¶ 16, 903
P.2d 263, 269. A new trial may be granted for
the reasons set out in 12 O.S.2011, § 651. The
trial court’s decision to deny a motion for new
trial will not be disturbed absent an abuse of
discretion. Evers v. FSF Overlake Assoc., 2003
OK 53, ¶ 6, 77 P.3d 581, 585.
¶9 The propriety of the trial court’s denial of
the motion for new trial rests on the correctness
of the court’s grant of summary judgment.
Therefore we must examine by de novo review
the trial court’s decision on summary judgment in order to determine whether the trial
court abused its discretion in denying the
motion for reconsideration. Evers, 2003 OK 53,
at ¶ 6, 77 P.3d at 583. “Summary judgment is
appropriate where it appears there is no substantial controversy as to any material fact and
one party is entitled to judgment as a matter of
Vol. 87 — No. 13 — 5/14/2016
law.” City of Enid v. Public Employees Rel. Bd.,
2006 OK 16, ¶ 5, 133 P.3d 281, 284-85; see also
Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d
463, 464; Daugherty v. Farmers Coop. Ass’n, 1984
OK 72, ¶ 5, 689 P.2d 947, 949.
ANALYSIS
1. Primary Purpose of the Loan
¶10 Homeowners contend the trial court
erred in finding the primary purpose of Homeowners’ loan was for business purposes and
that the loan was therefore exempt under the
TILA and OCCC.
¶11 The TILA1 and OCCC apply only to consumer credit transactions. The TILA does not
apply to an extension of credit “primarily for
business, commercial, or agricultural purposes
….” 15 U.S.C. § 1603(1). Rather, the TILA’s
scope is limited to “consumer” credit transactions, which are defined as transactions in
which “the money, property, or services which
are the subject of the transaction are primarily
for personal, family, or household purposes.”
15 U.S.C. § 1602(h); 12 C.F.R. § 226.2(p). Similarly, the OCCC applies only when the “debt is
incurred primarily for a personal, family or
household purpose.” 14A O.S.2011, § 3-104(b).
¶12 In determining whether a transaction is
primarily consumer or commercial in nature
for purposes of the TILA exemption, the trial
court must examine the transaction as a whole
and the purpose for which the credit was
extended. See Tower v. Moss, 625 F.2d 1161, 1166
(5th Cir.1980) (home improvement transaction
primarily for consumer purpose although
home had been leased for nominal rent); Gallegos v. Stokes, 593 F.2d 372 (10th Cir. 1979)
(credit purchase of truck primarily for personal
use where Plaintiff also intended to use it for
business but did not have an on-going business
nor the prospect of establishing one); Semar v.
Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699,
704 fn.11 (9th Cir. 2002) (mortgage loan “primarily” for personal use if only 10% of proceeds used for business purposes and primary
purpose of loan was to pay off a second trust
deed loan on the consumer’s house). Where
credit is extended for both personal and business reasons, the mere fact that the transaction
has some personal purpose does not automatically render it subject to the provisions of the
TILA. See Gombosi v. Carteret Mortgage Corp.,
894 F. Supp. 176, 180 (E.D. Pa. 1995). Rather, the
court must determine whether the transaction
is primarily for personal, family or household
Vol. 87 — No. 13 — 5/14/2016
purposes. Id. A loan has a consumer purpose if
the loan was “primarily for personal, family or
household purposes.” 15 U.S.C. § 1602(h). The
plaintiff bears the burden of showing that a
disputed transaction is “a consumer credit
transaction, not a business transaction.” Katz v.
Carte Blanche Corp., 496 F.2d 747, 751 (3d Cir.),
cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.
Ed.2d 125 (1974); Quinn v. A.I. Credit Corp., 615
F.Supp. at 151, 153.
¶13 In the present case, Homeowners assert
they applied for credit secured by a mortgage
on their primary residence. The proceeds of the
loan were used to pay off an existing mortgage
on their residence, the existing debt on their
personal automobile, credit card debt, and to
purchase a truck that was used mostly for business.2 Homeowners contend less than one half
of the loan proceeds were used to purchase the
truck, i.e., for a business purpose. Finally, Homeowners cite Bank’s own records, a Disbursement Request, which provides the purpose of
the loan was for “Personal, Family or Household Purposes or Personal Investment.” Thus,
Homeowners contend the purpose of the loan
was primarily for personal purposes and the
loan is therefore not exempted from the TILA
and OCCC.
¶14 Bank disagrees, asserting Homeowners
approached Bank to restructure their debt after
being discharged from Chapter 7 bankruptcy
and that the loan at issue was used to pay off
their original home mortgage, two (2) motor
vehicles, one of which was a business vehicle,
and credit card debt. Finally, Bank asserts it
characterized the note as an agricultural loan
secured by farmland. Thus, Bank contends the
primary purpose of the loan was business.
¶15 The trial court found the undisputed
facts indicated that the primary purpose of the
loan was business and therefore Homeowners
had no claim under the Acts. We disagree.
Homeowners have presented evidentiary
material sufficient to tender a disputed issue of
fact concerning the purpose of the loan and
whether it was primarily for a personal or business purpose. A court may grant summary
judgment only when neither genuine issues of
material fact nor any conflicting inferences that
may be drawn from uncontested facts are in
dispute and the law favors the moving party’s
claim or liability-defeating defense as a result
of which the moving party becomes entitled to
judgment as a matter of law. Bowman v. Presley,
2009 OK 48, ¶ 6, 212 P.3d 1210, 1216. No single,
963
clear, and undisputed answer to this question
can be drawn from the parties’ evidentiary
substitutes found in the record. Resolution of
this uncertainty is a task that must fall upon
the trier of fact. Id. at ¶ 15, at 1218. Accordingly,
the trial court erred in denying Homeowners’
motion for new trial, seeking reconsideration
of the December 9, 2014, journal entry finding
their loan was for a business purpose and as a
result, the TILA, HOEPA, and OCCC did not
apply. The matter is remanded to the trial court
for further proceedings consistent with this
opinion.
2. Amended Note and Violations of Acts
¶16 Homeowners further contend the trial
court erred in finding the amended note cured
Bank’s violations of the Acts. Homeowners
assert they were obligated and paid under the
original note’s terms for one (1) year and that
violations under the Acts occurred under the
original note notwithstanding a subsequent
amendment of the note. Homeowners note the
TILA provides a procedure for a lender to correct errors made that violate the disclosure
requirements of the Act, citing 15 U.S.C. §
1640(b), and that Bank failed to follow these
procedures.3
¶17 Bank disagrees, asserting the original
note was extinguished and amended on March
20, 2012. Thus, the Act’s provisions regarding
“high cost” mortgages no longer apply. Alternatively, Bank asserts Homeowners received
adequate disclosures prior to the time that the
proceeds were disbursed and were advised
that the mortgage covered their home and that
they had the right to rescind the transaction.
Finally, Bank contends any mistakes it made
were the result of a bona fide error, thereby
relieving it from any liability under the Act.4
¶18 The trial court found the note as amended in March of 2012 did not qualify as a “high
cost” mortgage. Thus, the TILA, HOEPA,
OCCC, and OCPA provisions were not triggered and Homeowners had no claim under
these Acts. This was error. The original note
was executed by Homeowners on March 1,
2011. Bank acknowledges the original note was
a “high cost” mortgage and therefore subject to
the provisions of the Acts. Homeowners have
alleged various violations of the Acts, including Bank’s failure to timely provide certain
disclosures, the inclusion of a due-on-demand
clause as well as a balloon payment, inter alia.
These purported violations occurred prior to or
964
simultaneous with the execution of the original
note and were not extinguished or cured by the
March 12, 2012, amendment of the note. The trial
court erred in holding otherwise. Accordingly,
the trial court erred in denying Homeowners’
motion for new trial, seeking to reconsider the
December 9, 2014, journal entry finding the
TILA, HOEPA, OCCC, and OCPA provisions
were not triggered and Homeowners had no
claim under these Acts. The matter is remanded
to the trial court for further proceedings consistent with this opinion.
¶19 REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
FISCHER, P.J., and WISEMAN, J., concur.
JERRY L. GOODMAN, VICE-CHIEF JUDGE:
1. In 1968, Congress enacted the TILA, a federal statute that governs the terms and conditions of consumer credit by, inter alia, requiring lenders to disclose certain details about loans and loan fees and
costs. 15 U.S.C. § 1601 et seq. The purpose of the TILA “is to promote
the ‘informed use of credit’ by consumers.” Anderson Bros. Ford v.
Valencia, 452 U.S. 205, 219 (1981) (quoting 15 U.S.C. § 1601). Through its
enactment of the TILA, Congress sought “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare
more readily the various credit terms available to him and avoid the
uninformed use of credit[.]” 15 U.S.C. § 1601(a).
Congress enacted HOEPA in 1994 as an amendment to the TILA
after abusive practices in home mortgage lending continued. See
Pub.L. 103-325 (amending the TILA at 15 U.S.C. §§ 1601-02, 1604, 1610,
1639-41, 1648). HOEPA requires lenders to provide borrowers with
additional disclosures with respect to certain home mortgages, including high cost loans. 15 U.S.C. § 1639(a)(1). To implement the TILA and
HOEPA, the Board of Governors of the Federal Reserve System introduced Regulation Z. See 12 C.F.R. § 226.1 et seq.
2. Homeowners assert they borrowed $47,516.00: $11,868.83 was
paid on an existing mortgage, $10,834.95 on an existing vehicle,
$3,871.95 in cash, and $16,660.57 to purchase a service vehicle for a
business and the remaining $4,279.70 in fees and closing costs. Thus,
they contend 65% of the loan was for personal purposes.
3. 15 U.S.C. § 1640 provides:
(b) Correction of errors
A creditor or assignee has no liability under this section or section 1607 of this title or section 1611 of this title for any failure to
comply with any requirement imposed under this part or part E
of this subchapter, if within sixty days after discovering an error,
whether pursuant to a final written examination report or notice
issued under section 1607(e)(1) of this title or through the creditor’s or assignee’s own procedures, and prior to the institution of
an action under this section or the receipt of written notice of the
error from the obligor, the creditor or assignee notifies the person
concerned of the error and makes whatever adjustments in the
appropriate account are necessary to assure that the person will
not be required to pay an amount in excess of the charge actually
disclosed, or the dollar equivalent of the annual percentage rate
actually disclosed, whichever is lower.
4. 15 U.S.C.A. § 1640 provides:
(c) Unintentional violations; bona fide errors
A creditor or assignee may not be held liable in any action
brought under this section or section 1635 of this title for a violation of this subchapter if the creditor or assignee shows by a
preponderance of evidence that the violation was not intentional
and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
Examples of a bona fide error include, but are not limited to,
clerical, calculation, computer malfunction and programing, and
printing errors, except that an error of legal judgment with
respect to a person’s obligations under this subchapter is not a
bona fide error.
Vol. 87 — No. 13 — 5/14/2016
2016 OK CIV APP 23
ROGER DAVIS, Plaintiff/Appellant, vs. THE
OKLAHOMA DEPARTMENT OF
CORRECTIONS and ROBERT PATTON, as
director, Defendants/Appellees.
Case No. 113,773. March 14, 2016
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE ROGER H. STUART,
TRIAL JUDGE
AFFIRMED AS MODIFIED AND
REMANDED FOR FURTHER
PROCEEDINGS
John M. Dunn, THE LAW OFFICES OF JOHN
M. DUNN, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellant
E. Scott Pruitt, ATTORNEY GENERAL, Justin
P. Grose, ASSISTANT ATTORNEY GENERAL,
OKLAHOMA OFFICE OF THE ATTORNEY
GENERAL LITIGATION SECTION, Oklahoma
City, Oklahoma, for Defendants/Appellees
JOHN F. FISCHER, JUDGE:
¶1 Roger Davis appeals the order granting
the Oklahoma Department of Corrections’
motion to dismiss his petition seeking declaratory and injunctive relief regarding the Oklahoma Sex Offenders Registration Act, 57
O.S.2011 §§ 581 through 590.2 (Registration
Act). Davis’s petition alleges that the application of the Registration Act in his case violates
his constitutional rights. The appeal has been
assigned to the accelerated docket pursuant to
Oklahoma Supreme Court Rule 1.36, 12 O.S.
Supp. 2013, ch. 15, app. 1, and the matter
stands submitted without appellate briefing.1
We find no violation of the Ex Post Facto
Clause or the Equal Protection Clause as asserted by Davis and affirm the district court’s
order dismissing his petition in that regard.
However, because the district court did not
address the validity of Davis’s due process
claim, the case must be remanded for that
determination.
BACKGROUND
¶2 Davis was convicted in Indiana on October 8, 1997, and sentenced to five years in
prison for the crime of “Lewd or Indecent Proposals/Acts to a Child.” That crime is one
requiring registration with the Department of
Corrections by any person subject to the RegisVol. 87 — No. 13 — 5/14/2016
tration Act. 57 O.S. Supp. 2010 § 582.2 After
serving less than two years of his Indiana sentence, Davis was released from prison. He
entered a plea of nolo contendere and received
a deferred sentence in October of 1998. Davis
completed all requirements of his sentence and
probation in 2002. Davis moved to Oklahoma
in October of 2013 and registered with the
Department as a sex offender. He was assigned
risk level three: “a designation that the person
poses a serious danger to the community and
will continue to engage in criminal sexual conduct.” 57 O.S.2011 § 582.5(C)(3).
¶3 Davis filed his petition seeking declaratory and injunctive relief. He alleged that the
Registration Act constituted an ex post facto
law and denied him the equal protection of the
laws in violation of the Oklahoma and United
States Constitutions. The Department removed
the case to the United States District Court for
the Western District of Oklahoma and filed a
motion to dismiss, arguing that the petition
failed to state a claim on which relief could be
granted. The federal court granted the motion in
part, ruling that Davis had not stated a claim
regarding federal ex post facto law. The federal
court determined that factual issues precluded
resolution of the Department’s motion concerning Davis’s other claims and remanded the case
back to the Oklahoma County district court.
¶4 Davis filed an amended petition in district
court, asserting only Oklahoma constitutional
theories of recovery. The Department renewed
its motion to dismiss. Davis appeals the district
court’s order, which granted the Department’s
motion to dismiss and found that the petition
“failed to state a claim on which relief can be
granted with respect to his ex post facto and
equal protection claims under the Oklahoma
Constitution.”
STANDARD OF REVIEW
¶5 The purpose of a motion to dismiss a petition for failure to state a claim is to test the law
that governs the claim rather than the facts
asserted in support of that claim. Kirby v. Jean’s
Plumbing Heat & Air, 2009 OK 65, ¶ 5, 222 P.3d
21 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78
S. Ct. 99, 102 (1957)). On review of an order
dismissing a petition all allegations in the petition are taken as true. Gens v. Casady Sch., 2008
OK 5, ¶ 8, 177 P.3d 565. Appellate review of a
motion to dismiss involves de novo consideration of whether the petition is legally sufficient. Indiana Nat’l Bank v. Dep’t of Human Servs.,
965
1994 OK 98, ¶ 2, 880 P.2d 371. De novo review
requires plenary, independent, and non-deferential examination of the trial court’s rulings of
law. In re Estate of Bell-Levine, 2012 OK 112, ¶ 5,
293 P.3d 964.
ANALYSIS
¶6 Davis’s petition alleges the facts of his
conviction and incarceration in Indiana, his
move to Oklahoma, registration with the Department pursuant to the Registration Act and
his classification as a level three risk. He asserts
that because of his risk assignment, he is
required to register “for life,” although had he
been convicted in Oklahoma on October 8,
1997, rather than in Indiana, he would have
been required to register for only ten years. He
contends that application of the Registration
Act by the Department violates the prohibition
against ex post facto laws and denies him the
equal protection of the law. Both theories of
recovery assert violations of the Oklahoma
Constitution.
I. The Ex Post Facto Argument
¶7 As the parties recognize, the Oklahoma
Supreme Court’s decision in Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305
P.3d 1004, is the leading case regarding Davis’s
ex post facto argument. In 1998, Starkey pled
nolo contendere and received a deferred sentence in Texas. The crime would have required
registration for a period of ten years had it
been committed in Oklahoma. Starkey moved
to Oklahoma sometime in 1998 and registered
with the Department as a sex offender. In 2004,
the Registration Act was amended to begin the
registration period from the date of completion
of the sex offender’s sentence or probation
rather than from the date of conviction. In
2007, the Act was amended again to implement
a three-level classification system and lengthen
the registration period. After the 2007 amendment, the Department notified Starkey that he
had been assigned a level three classification,
requiring him to register for life. Starkey challenged the Department’s classification.
¶8 The Starkey Court held that the Registration Act was penal in nature, and the registration period could not be extended pursuant to
a subsequent amendment without violating
“the prohibition on ex post facto laws provided
in Article 2, § 15 of the Oklahoma Constitution.” Id. ¶ 79. The Court rejected Starkey’s
argument that he should be subject to the version of the Registration Act in effect on the date
966
he was convicted in Texas. “The correct date to
apply is when Starkey became subject to [the
Registration Act] by entering and intending
to be in Oklahoma after his conviction.” Id. ¶
82 (emphasis in original) (footnote omitted).
The Court found that neither the 2004 nor the
2007 amendments to the Registration Act could
be applied to Starkey, because he first became
subject to registration when he moved to Oklahoma in 1998, prior to the effective date of
either amendment.
¶9 In its ex post facto analysis in subsequent
cases, the Oklahoma Supreme Court has consistently applied the version of the Registration
Act in effect when a person convicted in another state first becomes subject to the Registration
Act by moving to Oklahoma. See Bollin v. Jones,
2013 OK 72, 349 P.3d 537; Burk v. State ex rel.
Dep’t of Corr., 2013 OK 80, 349 P.3d 545; Ransdell
v. State ex rel. Oklahoma Dep’t of Corr., 2013 OK
106, 322 P.3d 1064. Starkey and these cases are
dispositive of Davis’s argument that the Ex
Post Facto Clause requires application of the
version of the Registration Act in effect on the
date of his Indiana conviction. It does not. The
district court’s order dismissing Davis’s petition for failure to state a claim for violation of
the Ex Post Facto Clause of the Oklahoma Constitution is affirmed.
II. The Equal Protection Argument
¶10 Davis also argues that the Department’s
application of the Registration Act denies him
the equal protection of the law. His argument
takes two forms. First, Davis argues that he is
being treated differently than persons convicted
in Oklahoma on the date he was convicted in
Indiana. Second, he contends that the Registration Act infringes on his fundamental right to
travel, have custody of his children, choose with
whom he can live and whom he can marry.
¶11 At the oral argument in this case, Davis
confirmed that his intent, in filing his amended
petition, was to assert an equal protection
claim based only on the Oklahoma Constitution. Oklahoma does not have a separate Equal
Protection Clause like that contained in the
Fourteenth Amendment to the United States
Constitution. Fair Sch. Fin. Council of Okla., Inc.
v. State, 1987 OK 114, ¶ 54, 746 P.2d 1135. Nonetheless, the Oklahoma Supreme Court has
identified “a functional equivalent of that
clause in the anti-discrimination component of
our state constitution’s due process section,
Art. 2, § 7, Okla. Const.” Ross v. Peters, 1993 OK
Vol. 87 — No. 13 — 5/14/2016
8, n.29, 846 P.2d 1107. See also Torres v. Seaboard
Foods, LLC, 2016 OK 20, ¶ 31, ___ P.3d ___.
Oklahoma’s constitution “contains a built-in
anti-discrimination component which affords
protection against unreasonable or unreasoned
classifications serving no ‘important governmental objectives.’” Fair School Finance, 1987
OK 114, n.48 (quoting Davis v. Passman, 442
U.S. 228, 234, 99 S. Ct. 2264, 2271 (1979)). “A
classification is not to be measured by whether
it discriminates, but rather by whether it discriminates impermissibly or invidiously.” Ross,
1993 OK 8, ¶ 20.
A. The Discriminatory Classification
Argument
¶12 The first component of Davis’s equal
protection argument relies on Hendricks v. Jones,
2013 OK 71, 349 P.3d 531. Citing Hendricks,
Davis asserts that “discrimination based on the
jurisdiction in which the conviction occurred
has no rational basis for protecting the public.”
Id. ¶ 14. Hendricks was convicted of a sex
crime in California in 1982. He moved to Oklahoma in 2009. The Registration Act was adopted effective November 1, 1989, and did not
require registration by persons convicted in
Oklahoma prior to that date or persons who
moved to Oklahoma after being convicted in
another jurisdiction prior to that date. However, when Hendricks moved to Oklahoma, the
version of the Registration Act in effect required
registration by any person who moved to
Oklahoma after November 1, 1989, after being
convicted in another jurisdiction, regardless of
the date of conviction. Hendricks argued that
requiring him to register, when those convicted
in Oklahoma on the same date were not,
denied him the equal protection of the law. The
Court agreed.
Applying [the Registration Act’s] requirements to sex offenders who now reside in
Oklahoma and were convicted in another
jurisdiction prior to [the Registration Act’s]
enactment when an Oklahoman convicted
in Oklahoma of a similar offense prior to
[the Registration Act’s] enactment is not
required to register, violates a person’s
equal protection guarantees.
Id. ¶ 17.
¶13 Davis argues that he is being denied
“equal protection guarantees” because he is
being treated differently than those who were
convicted of a sex crime in Oklahoma on the
date of his Indiana conviction. He claims the
Vol. 87 — No. 13 — 5/14/2016
holding in Hendricks prohibits this type of discrimination based solely on the jurisdiction of
his conviction. As Davis correctly points out,
the Registration Act in effect in October 1997,
when he was convicted, required a maximum
registration period of ten years. However,
when he moved to Oklahoma in October 2013
the version in effect required a fifteen-year
minimum registration period and employed a
classification system that, in Davis’s case,
resulted in a lifetime registration requirement.
Compare 57 O.S. Supp. 2009 §§ 582.5 and 583,
with 57 O.S. Supp. 1995 § 583. Unlike the circumstances in Hendricks, however, Davis’s conviction did not occur prior to adoption of the
Registration Act in 1989. The class at issue in
Hendricks was “persons residing in Oklahoma
after November 1, 1989, who were convicted of
a sex crime in another jurisdiction prior to . . .
November 1, 1989.” Hendricks, 2013 OK 71, ¶
10. Nonetheless, Davis asks us to extend the
holding in Hendricks and apply the version of
the Registration Act in effect on the date of his
Indiana conviction, even though that was long
before his move to Oklahoma. Equal protection
of the law does not mandate that result.
¶14 The initial question in equal protection
cases is to “identify the population and whether a distinction or classification has been drawn
within that population.” Rivas v. Parkland
Manor, 2000 OK 68, ¶ 9, 12 P.3d 452. Classification based on the date of conviction, for those
convicted after adoption of the Registration
Act, is not the relevant “class.” “[T]he controlling registration requirements are those which
were in effect when an individual meeting the
criteria of a sex offender, convicted in another
jurisdiction, enters Oklahoma and becomes
subject to [the Registration Act].” Burk v. State
ex rel. Dep’t of Corr., 2013 OK 80, ¶ 11, 349 P.3d
545 (citing Starkey, 2013 OK 43, 305 P.3d 1004).
Accord Bollin v. Jones, 2013 OK 72, 349 P.3d 537
(enjoining application of a version of the Registration Act amended after a person convicted
in another jurisdiction moved to Oklahoma);
Ransdell v. State ex rel. Okla. Dep’t of Corr., 2013
OK 106, 322 P.3d 1064 (holding unconstitutional application of the 2007 level-assignment
system to a person who moved to Oklahoma in
1999). In each of the Supreme Court’s postStarkey cases, except Hendricks, some version of
the Registration Act was applied. The terms of
the applicable registration requirements were
determined pursuant to the version of the Registration Act in effect when the sex offender
moved to Oklahoma.
967
¶15 Davis does not argue that he is a member
of a suspect class. Cf. Butler v. Jones ex rel. State
ex rel. Dep’t of Corr., 2013 OK 105, ¶ 12, 321 P.3d
161 (eliminating registration requirement for
persons with expunged out-of-state conviction
satisfies the rational basis test for equal protection purposes). Nor does Davis argue that he is
being treated differently than any other person
who became subject to the Registration Act on
the date he moved to Oklahoma. That is, however, the relevant classification required by the
Oklahoma Supreme Court in Starkey. Burk is
dispositive of Davis’s equal protection argument based on discriminatory classification.
The Burk Court held it was unconstitutional to
apply the 2007 level-assignment system to a
resident convicted in another jurisdiction, who
moved to Oklahoma in 2004. But the Court
remanded the case for determination of whether Burk moved to Oklahoma before, or after,
the effective date of the 2004 amendment to the
Registration Act and, therefore, whether his
required registration period was for ten years
from his conviction or for ten years from the
completion of his sentence. Equal application
of the Registration Act to all those who become
subject to the Act at the same time is a “sufficient safeguard against arbitrary discrimination.” Butler, 2013 OK 105, ¶ 11. “The equal
protection clause is satisfied if the statute
applies alike or in reasonable degree to all parties in the same class.” Daube v. Okla. Tax
Comm’n, 1944 OK 218, ¶ 29, 152 P.2d 687. Davis
has failed to show that application of the version of the Registration Act in effect when he
moved to Oklahoma draws a “distinction or
classification” within the population of which
he is a member. Rivas, 2000 OK 68, ¶ 9.
B. The Fundamental Rights Argument
¶16 Davis’s second equal protection argument is that the Registration Act unconstitutionally infringes on his fundamental rights to
travel, have custody of his children, choose
with whom to live and whom to marry.3 Davis’s
argument focuses on his right to travel. The
United States Supreme Court “long ago recognized that . . . our constitutional concepts of
personal liberty unite to require that all citizens
be free to travel . . . uninhibited by statutes,
rules, or regulations which unreasonably burden or restrict this movement.” Shapiro v.
Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322, 1329
(1969). A constitutional right to travel is “fundamental,” and one that has been “firmly
established and repeatedly recognized.” United
968
States v. Guest, 383 U.S. 745, 757-58, 86 S. Ct.
1170, 1178 (1966). It is generally recognized that
the right to travel is protected by the Privileges
and Immunities Clause of the United States
Constitution found in Article IV, § 2, and the
Fourteenth Amendment to that Constitution.
Saenz v. Roe, 526 U.S. 489, 498, 119 S. Ct. 1518,
1524 (1999). As it relates to this case, the right
to travel ensures that once Davis relocated to
Oklahoma, he was entitled to the same privileges and immunities enjoyed by the citizens of
this State. As the Saenz Court observed, citizens may select the state in which they choose
to reside; “States, however, do not have any
right to select their citizens.” Id. at 511, 119 S.
Ct. at 1520.
¶17 Davis argues that equal protection of the
law means that he is entitled to be treated for
registration purposes like all others subject to
the Registration Act on the date of his Indiana
conviction. We find this argument unpersuasive.
First, Saenz and Shapiro are distinguishable. Both
decisions declared residency requirements
imposed on the receipt of welfare benefits provided by the state to be unconstitutional on the
basis that denying benefits available to state
citizens until new citizens of the state had
resided therein for one year impermissibly
infringed on the right to travel. The problem in
Shapiro and Saenz is not present here. Davis
will not be entitled to the “benefits” of the version of the Registration Act in effect when he
was convicted in Indiana no matter how long
he resides in Oklahoma.
¶18 Second, Davis is not asserting an equal
protection claim based on federal law; he relies
solely on the equal protection provision of the
Oklahoma Constitution. He finds recognition
of a State right to travel in Edmondson v. Pearce,
2004 OK 23, 91 P.3d 605, cert. denied, Tally v.
Edmondson, 543 U.S. 987, 125 S. Ct. 495 (2004),
and Hendricks v. Jones, 2013 OK 71, 349 P.3d 531.
Edmondson was decided based on the right to
travel protected by the United States Constitution, and Hendricks was decided on the basis of
a discriminatory classification not the infringement of a fundamental right. Likewise, Butler v.
Jones ex rel. State ex rel. Dep’t of Corr., 2013 OK
105, 321 P.3d 161, is not a “fundamental rights
case.” In Butler, the Court found that eliminating the registration requirement for Oklahoma
residents whose out-of-state convictions were
expunged did not implicate the fundamental
rights of persons convicted in Oklahoma and
required to register even though their convic-
Vol. 87 — No. 13 — 5/14/2016
tions were subsequently expunged. The relationship between this holding and the right to
travel is, at best, tangential. Davis has not
pointed to any Oklahoma authority recognizing a right to travel pursuant to State law independent of his privileges and immunities as a
United States citizen.
¶19 However, the Department concedes that
the Registration Act could impact some of
Davis’s fundamental rights. Because those convicted in Oklahoma are subject to the version
of the Registration Act in effect on the date of
their conviction, Davis contends that, to be
treated the same, the Department is required to
apply the version of the Registration Act in
effect when he was convicted. But, when Davis
was convicted in Indiana, the Oklahoma Registration Act did not apply to him, nor was it
part of his Indiana sentence. The same is true
regarding the sex offender registration laws of
any state other than Indiana. Some version of a
sex offender registration law was in effect in
every state when Davis chose to move from
Indiana. See Hendricks, 2013 OK 71, n.11. Consequently, Davis’s fundamental rights were
affected regardless of where he chose to move.
Nonetheless, with respect to these fundamental rights, once Davis moved to Oklahoma he
was treated no differently than any other person convicted of a sex crime in Oklahoma on
that date. The restrictions on Davis’s child
custody, housing and so forth apply with equal
force to every other convicted sex offender living in Oklahoma. Oklahoma’s Constitution
does not require the state to treat Davis like
something he is not, a person subject to the
Registration Act on the date he was convicted
in Indiana. “[T]hings which are different in fact
or opinion [are not required] to be treated in
law as though they were the same.” Kirk v. Bd.
of Cnty. Comm’rs, Muskogee Cnty., 1979 OK 80, ¶
6, 595 P.2d 1334. Accord Brown v. Lillard, 1991
OK 74, 814 P.2d 1040.
¶20 Nonetheless, Davis argues that application of the version of the Registration Act in
effect when he moved to Oklahoma, rather
than the version in effect when he was convicted in Indiana, fails the strict scrutiny test.
Both Hendricks and Butler were decided on the
basis of the rational-basis test, the lowest
threshold of analysis in equal protection cases.
Butler, 2013 OK 15, ¶ 12. Davis claims “strict
scrutiny” is the appropriate test in this case
because his fundamental rights are at issue.
Davis is correct. As the Hendricks court recogVol. 87 — No. 13 — 5/14/2016
nized, equal protection analysis requires strict
scrutiny of legislative classifications affecting
the exercise of fundamental rights. Hendricks,
2013 OK 71, ¶ 9. This heightened standard of
review is satisfied if the law is “substantially
related to an important governmental interest.”
Anderson v. Eichner, 1994 OK 136, n.35, 890 P.2d
1329. See also Shapiro v. Thompson, 394 U.S. at 634,
89 S. Ct. at 1322 (no equal protection violation if
the law is “necessary to promote a compelling
governmental interest”). The Oklahoma Supreme Court has previously addressed this
issue. “[N]otifying citizens of the presence of
convicted sex offenders is a legitimate governmental objective and protecting Oklahoma
citizens from sex offenders is a compelling
state interest. Hendricks, 2013 OK 71, ¶ 17. “A
sex offender registry is a valid tool for the
state to use for public safety. The State may
impose registration duties and may publish
registration information as part of its punishment of this category of defendants.” Starkey,
2013 OK 43, ¶ 78.
¶21 Davis has not shown that application of
the Registration Act in effect when he moved
to Oklahoma fails the strict scrutiny test. The
district court’s order dismissing Davis’s equal
protection claim is affirmed.
III. The Due Process Argument
¶22 Davis’s final argument, assuming the
2013 version of the Registration Act applies,
asserts a due process violation by the manner
in which he was classified. Davis’s Amended
Petition does not articulate this theory. However, there is a general reference to constitutionally protected liberty interests, and Davis
clearly asserted a due process claim in his
Response to the Department’s motion to dismiss. In addition, Davis was not given the
opportunity to amend his petition to more
clearly assert this claim. “On granting a motion
to dismiss a claim for relief, the court shall
grant leave to amend if the defect can be remedied . . . .” 12 O.S.2011 § 2012(G). “Interests
protected by due process are not always ‘created by the [Federal] Constitution. Rather, they
are [often] created and their dimensions are
defined’ by some independent source, which
consists quite frequently of a state statute or
rule entitling the person to certain benefits.”
Phillips v. Williams, 1980 OK 25, ¶ 5, 608 P.2d
1131 (quoting Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709
(1972)). Consequently, to the extent that Davis
969
can state a claim based on a violation of due
process, he must be permitted to do so.
2. Documents the reason for the override in
the case file of the offender.
¶23 Davis alleged in his petition that he was
not convicted of an “aggravated” sex offense
and that he is not a “habitual” sex offender. He
now argues, therefore, that there was no basis
on which to classify him as a “Level three”
offender. At the time Davis received his level
assignment, the statute provided:
Provided, in no event shall the sex offender
level assignment committee, the Department of Corrections, or a court override
and reduce a level assigned to an offender
as provided in subsection C of this section.
C. The offense for which the person is convicted shall serve as the basis for the level
assigned to the person. In selecting the
level assignment, the sex offender level
assignment committee shall use the following general guidelines:
1. Level one (low): a designation that the
person poses a low danger to the community and will not likely engage in criminal
sexual conduct;
2. Level two (moderate): a designation that
the person poses a moderate danger to the
community and may continue to engage in
criminal sexual conduct; and
3. Level three (high): a designation that the
person poses a serious danger to the community and will continue to engage in
criminal sexual conduct.
57 O.S.2011 § 582.5. For purposes of the Department’s motion to dismiss, we must take as true
Davis’s allegation that he is not a habitual sexual offender. See Great Plains Fed. Sav. and Loan
Ass’n v. Dabney, 1993 OK 4, n.3, 846 P.2d 1088.
Consequently, the basis for classifying Davis as
a “Level three” offender is not supported by
this record.
¶24 Further, Davis contends that not only
was there no evidentiary basis for his “Level
three” assignment, but also that he was not
afforded a hearing to bring this fact to the
Department’s attention or provided a procedural mechanism to challenge the classification
decision. The applicable version of the statute
provides:
D. The sex offender level assignment committee, the Department of Corrections, or a
court may override and increase the level
assignment only if the entity:
1. Believes that the level assignment
assessed is not an accurate prediction of
the risk the offender poses to the community; and
970
57 O.S.2011 § 582.5. Due process analysis indicates that:
[I]dentification of the specific dictates of
due process generally requires consideration of three distinct factors: First, the
private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable
value, if any, of additional or substitute
procedural safeguards; and finally, the
Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.
State ex rel. Bd. of Regents of The Univ. of Okla. v.
Lucas, 2013 OK 14, ¶ 29, 297 P.3d 378, (quoting
Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.
Ct. 893, 903 (1976)). It is apparent from the
order appealed that the district court did not
perform the due process balancing test required
by Lucas, no doubt because that claim was not
articulated in the text of Davis’s petition. Nonetheless, Davis’s petition “must not be dismissed for failure to state a legally cognizable
claim unless the allegations indicate beyond any
doubt that the litigant can prove no set of facts
which would entitle the plaintiff to relief.”
Tuffy’s, Inc. v. City of Oklahoma City, 2009 OK 4, ¶
6, 212 P.3d 1158. We cannot make that determination in the “first-instance” on appeal. Evers v.
FSF Overlake Assocs., 2003 OK 53, ¶ 18, 77 P.3d
581. Therefore, this case must be remanded to
the district court for that determination.
CONCLUSION
¶25 The district court’s order dismissing
Davis’s petition with respect to his theories of
recovery based on alleged violations of the
prohibition against ex post facto laws and the
functional equivalent of the federal Equal Protection Clause found in the Oklahoma Constitution is affirmed. That order is modified to
grant Davis leave to amend his petition to
assert a theory of recovery based on an alleged
due process violation pursuant to the procedure deemed appropriate by the district court
after remand.
Vol. 87 — No. 13 — 5/14/2016
¶26 AFFIRMED AS MODIFIED AND
REMANDED FOR FURTHER PROCEEDINGS.
GOODMAN, C.J., and WISEMAN, P.J., concur.
1. Davis’s motion to file supplemental briefing in the appellate
court is denied. After oral argument in this case, we find additional
briefing is unnecessary.
2. Unless otherwise noted, citations will be to the version of the
Registration Act in effect in October 2013 when Davis moved to Oklahoma.
3. Davis misstates the effect of section 590.1 of the Registration Act
on his right to marry. The statute provides: “Nothing in this subsection
shall prohibit married persons, both of whom are required to register
as sex offenders, or two or more blood relatives who are required to
register as sex offenders, from residing in any individual dwelling during the term of registration as a sex offender.” Further, as the parties
conceded during oral argument, the record does not disclose either
Davis’s marital or familial status.
2016 OK CIV APP 24
ROBERT JUDSON RADFORD, Petitioner/
Appellant, vs. MELISSA JENNINGS
RADFORD, Respondent/Appellee.
Case No. 113,908. March 11, 2016
TULSA COUNTY, OKLAHOMA
HONORABLE THERESA DREILING, JUDGE
AFFIRMED
James R. Hicks, Caitlin J. Murphy, Joseph V.
Allen, BARROW & GRIMM, P.C., Tulsa, Oklahoma, for Husband/Appellant,
Melissa F. Cornell, ROBERTSON CORNELL,
Tulsa, Oklahoma, for Respondent/Appellee.
Bay Mitchell, Judge:
¶1 Petitioner/Appellant Robert Judson Radford (“Husband”) seeks interlocutory review
of the trial court’s denial of his request to disqualify counsel representing Respondent/
Appellee Melissa Jennings Radford (“Wife”)
when such counsel employed a paralegal who
formerly worked for the guardian ad litem in the
case. Because we find the paralegal was effectively screened from the case, the decision of
the trial court is AFFIRMED.
¶2 Husband filed a petition seeking dissolution of his marriage to Wife in 2007. The divorce decree was entered December 12, 2008,
but both parties agree intense litigation between
them has continued nearly constantly since
that time. In an attempt to resolve some of
those issues, the court appointed Todd Alexander as guardian ad litem (“GAL”) on May 1, 2012
for the parties’ minor children. At that time,
Vol. 87 — No. 13 — 5/14/2016
Toni Reed (“Ms. Reed”) worked for the GAL as
a paralegal. Ms. Reed’s duties included working on the Radford case. She attended the
GAL’s meetings with the minor children but
did not sit in on any of the GAL’s meetings
with the parties. Her interactions with the parties mainly consisted of scheduling appointments and taking messages. Her employment
continued until September 2014 when she took
a position at the law firm of Wife’s counsel,
Robertson Cornell.
¶3 Robertson Cornell is a small firm which
employs, in addition to its two lawyers, two
paralegals and one other secretary. Melissa
Cornell (“Ms. Cornell”) began representing
Wife July 18, 2013.1 When Ms. Reed began her
employment at Robertson Cornell in October
2014, Ms. Cornell instructed Ms. Reed that she
was not to work on the Radford case. Ms. Cornell further instructed Ms. Reed not to share
any confidential information regarding the
Radford case she may have learned while
working for the GAL. Even with these instructions, Ms. Reed notarized Ms. Cornell’s signature on some pleadings filed in the Radford
case and received an email from an assistant at
the law firm of Wife’s counsel, Barrow &
Grimm, with a proposed pre-trial order attached. Ms. Reed testified she did not review
any of the documents she notarized except for
the signature page and that she was the only
notary present in the office at the time notarization was needed. Ms. Cornell conceded to the
trial court she failed to provide written notice
to Husband’s counsel or the court of Ms.
Reed’s employment. Wife testified that having
to retain new counsel in this matter would
cause significant harm to her mainly due to the
cost of having a new lawyer become familiar
with the case.
¶4 The pleadings Ms. Reed notarized were
filed in the case beginning November 2014.
Husband filed his disqualification motion February 5, 2015, which was a little over two
weeks before the parties were scheduled for
trial on Wife’s motion to modify physical custody of the parties’ minor children. Husband
and his counsel concede Wife’s counsel
attempted to establish a “Chinese wall” to
screen Ms. Reed from having any access to the
Radford case but claim the attempt was not
successful as evidenced by Ms. Reed’s notarization of documents filed in the case and by
her receipt of the email.2 Husband further
argues that the failure of Wife’s counsel to give
971
them or the court written notice of Ms. Reed’s
employment requires automatic disqualification regardless of whether the screening was
satisfactory. At the evidentiary hearing following the parties’ unsurprising inability to agree
to stipulated facts, Husband testified Ms.
Reed’s employment with Robertson Cornell
made him worried Wife would somehow gain
access to confidential information shared with
the GAL which he did not have access to. The
GAL did not file a written report in this case
but testified he revealed all of the information
he had in the case at an earlier hearing in open
court where both parties were present.3 The
GAL testified at the hearing on Husband’s
motion to disqualify and stated Ms. Reed
would not have had access to any additional
information following his prior testimony
because she no longer worked for him.
¶5 Following testimony presented on behalf
of both parties, the trial court ruled from the
bench where she decided the case under Rule
1.12 of the Rules of Professional Conduct. The
trial court stated it applied that rule because
the GAL, Ms. Reed’s former employer, was acting as a third-party neutral. The court went on
to state that it found the screen set up by Robertson Cornell was sufficient even though Ms.
Reed notarized some documents filed in the
case because notarization did not require her to
actually review the substance of the documents, just the signatures pages. The court also
refused to find that Robertson Cornell’s failure
to inform Husband or the court in writing
about Ms. Reed’s employment resulted in
automatic disqualification of Ms. Cornell as
counsel for Wife. The court relied on Oklahoma case law which sets the burden for disqualification very high. E.g. Hayes v. Central
States Orthopedic Specialists, Inc., 2002 OK 30, 51
P.3d 562. The trial court’s ruling from the bench
was followed by a written order which simply
stated the court denied Husband’s motion to
disqualify Wife’s counsel “for the reasons specifically set forth in open Court and contained
within the record.”
¶6 On appeal Husband questions whether
the trial court’s order contains requisite findings sufficient to support its order; whether the
trial court abused its discretion in determining
whether Wife’s counsel effectively screened
Ms. Reed; whether there was sufficient evidence to support the trial court’s finding that
Ms. Reed was effectively screened; and whether the trial court abused its discretion in deny972
ing the disqualification motion despite the
failure of Wife’s counsel to give written notice
of Ms. Reed’s employment.
STANDARD OF REVIEW
¶7 An order granting or denying a motion to
disqualify counsel is a final order subject to
appellate review under 12 O.S. §953. Miami
Business Services, LLC v. Davis, 2013 OK 20, ¶10,
299 P.3d 477. “When reviewing the order, we
review the trial court’s findings of fact for clear
error and carefully examine de novo the trial
court’s application of ethical standards.” Id.
ANALYSIS
¶8 “[T]he barrier a party must surmount to
secure the disqualification of his opponent’s
counsel is high.” Hayes, 2002 OK 30, ¶9. “While
a party’s right to choose his own counsel may
be set aside under limited circumstances, a
showing must first be made that declining to
do so would threaten the integrity of the judicial process.” Id. (Internal quotations and citations omitted.) The Rules of Professional Conduct recognize conflicts of interest may arise
from a third-party neutral’s work in a matter
resulting in the third-party neutral being prohibited from representing parties in the same
matter. 5 O.S. Ch.1 Appx. 3-A, Rule 1.12.
¶9 Here, the GAL, Ms. Reed’s former employer, acted as a third-party neutral. See Rowe v.
Rowe, 2009 OK 66, ¶5, 218 P.3d 887 (“The role of
a guardian ad litem in a custody dispute is to act
as an arm of the court and to see to the best
interest of the child. In custody matters [the
GAL] has almost universally been seen as
owing his primary duty to the court. . . not
strictly to the child client.”). As such, he would
be prohibited from personally representing
another party in this case unless all the parties
consented in writing, but the disqualification
would not necessarily extend to other lawyers
in his firm. Rule 1.12 provides in pertinent part:
(a) [A] lawyer shall not represent anyone in
connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer,
arbitrator, or law clerk to such a person, or
as a mediator or other third-party neutral,
unless all parties to the proceeding give
informed consent, confirmed in writing.
(c) If a lawyer is disqualified by paragraph
(a), no lawyer in a firm with which that
lawyer is associated may knowingly under-
Vol. 87 — No. 13 — 5/14/2016
take or continue representation in the matter unless:
(1) the disqualified lawyer is timely
screened from any participation in the
matter and is apportioned no part of the
fee therefrom; and
(2) written notice is promptly given to the
parties and any appropriate tribunal to
enable them to ascertain compliance with
the provisions of this rule.
Ms. Reed is not a lawyer, but the Rules of Professional Conduct extend to nonlawyer assistants. 5 O.S. Ch.1 Appx. 3-A, Rule 5.3; See also
Hayes, 2002 OK 30, ¶16. Accordingly, her
employment at Robertson Cornell could result
in Ms. Cornell’s disqualification unless Ms.
Reed was screened and written notice was
given as required in subsection (c)(2).
had previously testified about his observations of the case and testified at the hearing in
this matter that Ms. Reed did not have access
to any additional information not already disclosed in open court.
¶12 Further, we find no support in Oklahoma case law for the rebuttable presumption
that client confidences were shared. Such a
position would be contrary to our Supreme
Court’s admonition against a per se rule prohibiting a court’s examination of the effectiveness
of a screening device for nonlawyer assistants.
[B]efore being disqualified for having hired
a non-lawyer employee from its opponent,
the hiring firm should be given the opportunity to prove that the non-lawyer has not
revealed client confidences to the new
employer and has been effectively counseled and screened from doing so. If such
proof is made to the court’s satisfaction, the
court should deny the motion to disqualify
the non-lawyer’s new firm. Hayes, 2002 OK
30, ¶25.
¶10 It is undisputed Ms. Cornell attempted
to screen Ms. Reed from involvement in the
Radford case, but Husband contends the
screening was insufficient because Ms. Reed
notarized documents filed in the case and
received an email with a pretrial conference
order attached. We are not persuaded by this
argument. As noted by the trial court and as
testified to by Ms. Reed, her role as a notary
did not require her to review the substance of
the documents she was notarizing. She merely
attested that the signature was made by Ms.
Cornell. Further, Ms. Reed’s undisputed testimony revealed she forwarded the email to the
assistant responsible for the Radford case and
did not perform any work on it.
The rule set forth in Hayes simply requires the
new firm to demonstrate the nonlawyer assistant has not shared any confidences. There is
no instruction the new firm must rebut the
presumption the nonlawyer assistant has in
fact shared such confidences. We agree with
the trial court’s conclusion that Ms. Reed was
effectively screened, she did not share with her
new employer any confidential information
learned through her employment by the GAL,
and her time was not billed to Wife.
¶11 We are similarly unpersuaded by Husband’s reliance on Texas case law to support his
argument that there is a rebuttable presumption
the nonlawyer assistant shared confidential
information learned from prior employment.
Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831,
834-35 (Tex. 1994). We must first note that all of
the cases cited by Husband involved situations
where a nonlawyer assistant went to work for
a law firm representing the opposing party.
That is not the situation we are faced with
here. Ms. Reed did not work for Barrow &
Grimm before her employment at Robertson
Cornell. Rather, she was employed by the
GAL’s law firm. There was no attorney-client
relationship between the GAL and Husband
to protect. See Rowe, supra. While GALs and
other third-party neutrals may owe a duty of
confidentiality, that duty is not the same as the
attorney-client privilege. The GAL in this case
¶13 Ms. Cornell conceded she did not present written notice to Husband or the court
regarding Ms. Reed’s employment as required
by Rule 1.12(c)(2). Husband argues this failure
results in automatic disqualification regardless
of whether the screening was effective. We cannot agree. As set forth in Hayes, Oklahoma law
rejects a per se rule prohibiting a trial court from
examining the effectiveness of the screen. Hayes,
2002 OK 30, ¶25. Following a thorough evidentiary hearing, the trial court found, and we
agree, the screen established by Robertson Cornell was sufficient. Further, we note Husband
testified it was his review of the pleadings
notarized by Ms. Reed which put him on notice
of her change of employment. Such pleadings
began to be filed in November 2014, some three
months before the motion to disqualify was
filed. Ms. Cornell was not attempting to hide
the fact Ms. Reed worked for her. While we do
Vol. 87 — No. 13 — 5/14/2016
973
not find Husband waived his right to file such
a motion, the timing is certainly suspicious
given the looming trial date. See Hayes, 2002
OK 30, ¶10 (noting cases “that have recognized
waiver as a basis for denying motions to disqualify is the need to insure that such motions
are not used for strategic purposes); 5 O.S. Ch.1
Appx. 3-A, Scope, ¶20 (“[T]he purpose of the
Rules can be subverted when they are invoked
by opposing parties as procedural weapons.”).
Under the facts and circumstances of this case,
including the finding an effective screen was
established, failure to give written notice of the
non-lawyer assistant’s new employment does
not result in automatic disqualification.
¶14 The trial court’s decision to deny Husband’s motion to disqualify Wife’s counsel was
supported by sufficient evidence. The trial
court correctly applied Rule 1.12 of the Rules of
Professional Conduct in an articulate ruling
from the bench, which was specifically referenced in a later-filed written order. Accordingly, the decision of the trial court is AFFIRMED.
BUETTNER, V.C.J., P.J., and GOREE, J., concur.
1. Wife previously employed two other attorneys during the
course of the litigation.
2. The parties presented conflicting testimony whether Ms. Reed
solicited the email with the pre-trial conference order attached. Ms. Reed
testified she simply received it without any prior notice or request and
forwarded it to the other paralegal at Robertson Cornell responsible for
the Radford case. Vicki Robertson, a paralegal at Barrow & Grimm, testified she called the main line at Robertson Cornell and was instructed by
an unnamed individual to send the email to Ms. Reed.
3. The transcript reveals Husband’s counsel issued a subpoena
requesting that the GAL and Ms. Reed turn over any notes they had
from their meetings with the children. The GAL filed a motion to quash
and was apparently successful in his attempt.
HONORABLE OWEN T. EVANS,
TRIAL JUDGE
SUSTAINED
Phillip P. Owens II, OWENS LAW OFFICE, PC,
Oklahoma City, Oklahoma, for Petitioner
James Leo Gaston Jr., ADELSON, TESTAN,
BRUNDO, NOVELL & JIMENEZ, Oklahoma
City, Oklahoma, for Travelers Indemnity Company of Connecticut and Respondent Crane
Cartage, LLC
Mark T. Hamby, Kymberly J. Watt, WIDDOWS
LAW FIRM, P.C., Tulsa, Oklahoma, for Respondents William and Barbara O’Connell
¶1 Petitioner Kenneth E. Soule (Claimant)
appeals an Order of a three-judge panel of the
Workers’ Compensation Court of Existing
Claims affirming the trial court’s “Miscellaneous Order” denying Claimant’s motion to
join additional parties as employers. Based on
our review, we sustain.
BACKGROUND
¶2 Claimant filed a Form 3 in June 2011 alleging he sustained a compensable injury “on or
about” February 5, 2011, when he entered a gas
station and “caught [his] leg on rack,” causing
him to cut his left leg and twist his left knee.
Claimant alleged this injury was suffered while
he was employed as a truck driver for Wildcat
Freight Inc. (Wildcat). Wildcat filed a Form 10
contesting the compensability of Claimant’s
alleged injuries.
Case No. 113,996. March 11, 2016
¶3 Trial was held on July 18, 2012, on the
issue of the compensability of the alleged injuries to Claimant’s left leg and knee. In addition,
if the trial court found the alleged injuries to be
compensable, Claimant was also requesting
temporary total disability (TTD) benefits, as
well as medical care and expenses. In response,
Wildcat asserted at trial that “any problems in
[Claimant’s] left leg or left knee are due to
radiculopathy from his back or diabetic neuropathy, as well as osteoarthritis and medical
to that affect.” Claimant’s counsel called two
witnesses to the stand to testify: Claimant, and
one of Claimant’s coworkers. Wildcat did not
call any witnesses to testify.
PROCEEDING TO REVIEW AN ORDER
OF A THREE-JUDGE PANEL OF THE
EXISTING CLAIMS
¶4 In its order filed in July 2012, the trial
court rejected Wildcat’s “defense of preexisting
condition which is significant enough to extinguish liability for this injury . . . .” Instead, the
2016 OK CIV APP 25
KENNETH E. SOULE, Petitioner, vs. CRANE
LOGISTICS &/or JAMES CRANE &/or
CRANE CARTAGE FREIGHT SYSTEMS &/
or WILLIAM & BARBARA O’CONNELL &/
or ASHTON LEASING and THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS, Respondents, and WILDCAT
FREIGHT INC., Respondent, and
UNKNOWN OR NOT SPECIFIED &/or
TRAVELERS INDEMNITY CO. OF
CONNECTICUT &/or NO INSURANCE,
Insurance Carrier.
974
Vol. 87 — No. 13 — 5/14/2016
trial court found that Claimant suffered compensable injuries to “the LEFT LEG (KNEE)
arising out of and in the course of [his] employment,” specifically finding that Claimant’s “fall
to a floor resulting in aggravation of a preexisting condition constitutes the major cause of [C]
laimant’s injury.” Consequently, the trial court
awarded Claimant “14 weeks and 1 day” of
TTD benefits, from February 5, 2011, to May 15,
2011, in the total amount of $10,167.20. The
court reserved the issue of additional TTD, as
well as a determination of permanent disability, if any, for future hearing. The court also
ordered, among other things, that Wildcat
“and/or insurance carrier shall provide [Claimant] with reasonable and necessary medical
care with a physician selected by [Wildcat],”
and that Wildcat “and/or insurance carrier
shall pay all reasonable and necessary medical
expenses incurred by [C]laimant as a result of
said injury.”
¶5 In August 2012, as a result of Wildcat failing to pay Claimant pursuant to the July 2012
Order, Claimant filed a Form 13 “request[ing]
certification of [the] TTD Order.” In the “Judgment and Certification of Unpaid Award,”
filed in October 2012, the trial court stated that
“since entering [the July 2012 Order], [Wildcat]
has failed to comply herewith in accordance
with said Order, and defaulted in the payment
of said Order . . . .” The court stated that Claimant “is hereby authorized to file certified copies
of the [July 2012] Order . . . with the Court
Clerk and County Clerk of any county in the
State of Oklahoma, pursuant to 12 O.S. § 706,”
and stated that the “Certification of Unpaid
Award shall have the same force and effect as
judgments of the District Court.”
¶6 Although previously represented by
counsel, Claimant, in November 2012, filed pro
se another Form 13, seeking to join additional
parties as employers. In March 2014, after
retaining new counsel, Claimant filed a brief in
support of his Form 13 motion to join additional parties, asserting that although Wildcat
was Claimant’s “nominal” employer, Crane
Logistics and/or Crane Cartage Freight Systems (Crane Freight), rather than Wildcat,
“fully directed and controlled Claimant’s
employment.” He asserted that he interacted
with Crane Freight’s employees throughout
the relevant period, and “[t]he only thing . . .
[Wildcat] appeared to have to do with his
employment was issuing his paychecks.”
Claimant admitted in his brief that he “brought
Vol. 87 — No. 13 — 5/14/2016
this action solely against [Wildcat] and an
Order was entered.” He stated: “However,
[Wildcat] had no workers’ compensation coverage, and the Order has not been paid. Claimant has been forced to utilize his own medical
insurance to obtain the treatment needed for
his injuries.” Claimant asserted that under the
applicable Workers’ Compensation statutes,
Crane Freight was his “direct employer” and,
on this basis, should be responsible for making
benefit payments to Claimant. He further
argued that Crane Freight should, at the very
least, be found “secondarily liable for compensation benefits to Claimant” because Claimant’s services were a “necessary and integral”
part of Crane Freight’s business. Claimant
concluded his brief by stating: “Wildcat was
Claimant’s immediate employer and [Crane
Freight] was his primary employer. Wildcat is
apparently out of business and has no workers’
compensation coverage. [Crane Freight] is secondarily liable for compensation to Claimant,
and should be joined in this case.” In addition,
on October 2, 2014, Claimant filed a Form 3
attempting to amend his original Form 3 to
add “Crane Cartage, LLC/Crane Logistics,
William and Barbara O’Connell” as employers,
despite the fact that trial had occurred, and the
trial court’s order awarding TTD benefits had
issued, more than two years prior.
¶7 In its “Miscellaneous Order” filed on
October 20, 2014, the trial court stated as follows:
-1THE [C]laimant testified at JULY 18,
2012 hearing that his employer on date of
injury was [Wildcat]. Claimant made no
mention of any employment relationship
of any type or description with the parties
that he now seeks to join to this claim.
-2THAT the order filed JULY 18, 2012,
found [C]laimant to have been employed
by [Wildcat] on date of injury of FEBRUARY 5, 2011. That order, unappealed, is
final. [Wildcat] (and no other entity) has
been fully and finally determined to be [C]
laimant’s employer.
-3THAT upon non-compliance of the
order, [C]laimant secured certification of
975
same to District Court by order filed OCTOBER 9, 2012.
-4THAT [C]laimant’s NOVEMBER 30,
2012 motion to join came long after the
JULY 18, 2012 and OCTOBER 9, 2012 orders
were final.
-5THAT this Court will not litigate issues
which were not reserved at time of trial
and which were completely and fully within the knowledge of the parties at time of
trial.
¶8 The trial court, therefore, denied Claimant’s motion to join additional parties, after
which Claimant sought review by a threejudge panel. In its Order filed on May 14, 2015,
the three-judge panel affirmed the trial court’s
order denying Claimant’s motion to join additional parties.
¶9 From the Order of the three-judge panel,
Claimant appeals.
STANDARD OF REVIEW
¶10 The issue presented on appeal — whether the trial court erred in denying Claimant’s
request to join additional parties — presents a
question of law. “Questions of law are reviewed
by a de novo standard under which this Court
has plenary, non-deferential and independent
authority to determine whether lower courts
have erred in their legal rulings.” Graham Pub.
Sch. v. Priddy, 2014 OK 30, ¶ 8, 328 P.3d 1190
(citation omitted).
ANALYSIS
¶11 The Oklahoma Supreme Court has made
it clear that the “long-standing district court
axiom that a single cause of action cannot be
split” applies in the Workers’ Compensation
Court (now, Court of Existing Claims). PFL Life
Ins. Co. v. Franklin, 1998 OK 32, ¶ 20, 958 P.2d
156 (footnote omitted). In Franklin, confronted
with circumstances analogous to the present
case, the Supreme Court concluded that “an
absent insurer’s liability, in toto or pro tanto,
must be raised and litigated as a part of the
same claim.” Id. The Supreme Court also stated
as follows:
Because Fund was not a party, and there
is competent evidence to support the trial
judge’s finding of PFL’s liability for tempo976
rary total disability (with medical expenses), the panel was utterly without authority
gratuitously to inject into the case the allocation of liability (between PFL and a stranger to the claim). In compensation cases the
issues are formed by the evidence. None of the
parties raised the earlier carrier’s allocable
liability. Nor could it be implied. Only one
carrier stood before the court. That carrier
pressed solely for imposition of the entire
award against the earlier insurer. With only
one carrier before it, the WCC could neither forecast, assess nor allocate the absent
insurer’s responsibility. Due process prohibits a judicial tribunal from engaging in
sheer liability speculations and from forecasting them to affected entities who are
absent from the process whence these speculations were drawn.
Id. ¶ 24 (footnotes omitted) (emphasis in original).
¶12 Similarly, in the present case, only one
employer — Wildcat — was named by Claimant and present at the trial where the compensability of Claimant’s alleged injuries, and the
liability for TTD benefits (and medical expenses), were determined. Neither party raised the
proposed additional employers’ allocable liability at the time of trial (nor within almost
two-and-a-half years after trial), and in the
proceedings below Claimant pressed for relief
solely against Wildcat. Thus, the trial court
properly denied Claimant’s attempt to join
additional employers post-judgment because
the trial court is prevented from speculating as
to the liability of the proposed additional
employers, parties that were not present to
defend themselves at trial and that were absent
from the process whence such speculations
might be drawn.
¶13 Further guidance is found in Retherford v.
Halliburton Co., 1977 OK 178, 572 P.2d 966,1
where the appellants attempted to “characterize appellee’s two new suits as merely a subsequent attempt to recover items or elements of
her damage not sought in her prior action.” Id.
¶ 5. The Supreme Court stated that Oklahoma
follows “the general rule against splitting
causes of action,” meaning “that a single wrong
gives rise to one cause of action . . . for which
only one suit may be maintained to recover all
damage because of the commission of such
wrong, however numerous the elements or
items of damage resulting therefrom.” Id. ¶ 4.
Therefore, the Supreme Court stated that “[t]he
Vol. 87 — No. 13 — 5/14/2016
pivotal issue before the Court becomes, quite
simply, what is a ‘cause of action’?” Id. ¶ 9.
¶14 In the present case, it is not in dispute
that the theories which Claimant is attempting
to assert against the additional employers (by
joinder) arise from the same cause of action
already litigated at the July 2012 trial. See
Black’s Law Dictionary (10th ed. 2014) (A
“cause of action” is defined, in relevant part, as
the underlying “group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain
a remedy in court from another person[.]”). In
Oklahoma, a cause of action
exists to satisfy the needs of plaintiffs for a
means of redress, of defendants for a conceptual context within which to defend an
accusation, and of the courts for a framework within which to administer justice.
....
. . . [T]his jurisdiction is committed to the
wrongful act or transactional definition of
a “cause of action.” Thus, no matter how
many “rights” of a potential plaintiff are
violated in the course of a single wrong or
occurrence, damages flowing therefrom must
be sought in one suit or stand barred by the
prior adjudication.
Resolution Trust Corp. v. Greer, 1995 OK 126, ¶ 11
n.5, 911 P.2d 257 (emphasis added) (citation
omitted) (quoting Retherford, ¶¶ 9, 13).
¶15 “[C]ourts favor intervention and joinder
of party defendants as a convenient or pragmatic method of settling controversies relating
to the same subject matter,” Brown v. Patel, 2007
OK 16, ¶ 28, 157 P.3d 117, but “the addition of
parties” must be “during the pendency of that
action,” Liberty Nat’l Bank and Trust Co. of Okla.
City v. Garcia, 1989 OK 96, ¶ 15, 776 P.2d 1265.
Joinder of a defendant “after judgment denies
him the right to defend in the original action.”
Id. ¶ 18 (emphasis added). “Only in extraordinary circumstances will parties be added after
judgment.” Id. ¶ 20.
¶16 In Garcia, the Supreme Court concluded
that “[n]o extraordinary circumstances are
present in the case at bar” because the party
attempting to add the additional defendant,
post-judgment, “at all times knew of the existence of [the additional defendant’s] interest in
the outcome, but waited until the trial court
entered judgment . . . before” attempting to
Vol. 87 — No. 13 — 5/14/2016
add that defendant, and, moreover, the Court
determined the proposed additional defendant
would be prejudiced by being added postjudgment because the addition of a party after
judgment “undoubtedly” results in prejudice if
that party “is unable to defend against the
original plaintiff’s claim upon which his liability may depend.” Id. ¶¶ 21, 22 & 25.
¶17 In accordance with the case law discussed above, Rule 34 of the Rules of the Workers’ Compensation Court, 85 O.S. Supp. 2006,
ch. 4, app., states, in pertinent part, that “[a]
claimant who desires to add additional
respondent(s), shall promptly amend the Form 3,
and mail a copy to all parties, including the
additional respondent(s) and insurance carrier(s)
named.” (Emphasis added.) Here, Claimant did
not attempt to amend the Form 3 to add the
additional employers until October 2, 2014,
more than two years after the July 2012 trial and
order determining, among other things, the
compensability of Claimant’s injuries.
¶18 Furthermore, Claimant does not assert
he was unaware of the existence of the additional employers at the time of the July 2012
hearing or even at the time of the filing of the
original Form 3 in June 2011. For example,
Claimant states in his brief filed below in support of his motion to join the additional parties
that he
came into contact with [Wildcat] and the proposed new Respondents through answering an
internet advertisement. He spoke by telephone with a person named Callie, who
advised that she was an employee of Ashton Leasing, owned by William O’Connell.
Claimant was told that Mr. O’Connell had
created a new company called [Wildcat].
They were looking for drivers to haul …
motorcycles from the Crane Freight … warehouse in Kansas City, Missouri to various
dealers around the country.2
Claimant further admits he was “told [at that
time] that [Crane Freight] would take the
application, do the background checks, and
qualify the drivers. The [Crane Freight] supervisors would make the hiring decision and
complete the hiring process.” In sum, Claimant
admits that he was aware that Crane Freight,
rather than Wildcat, “fully directed and controlled Claimant’s employment,” and Claimant
essentially argues that he should have added
Crane Freight (and the other proposed employers other than Wildcat) in his original Form 3.
977
¶19 Claimant does assert that at the time of
his hiring, he “personally asked about workers’ compensation coverage” and was “assured
by the [Crane Freight] employees that workers’
compensation coverage was in place along with
all other required coverages.”3 Apparently for
this reason Claimant, as he admits, “brought this
action solely against [Wildcat],” only to discover,
apparently after trial, that “[Wildcat] had no
workers’ compensation coverage . . . .”
¶20 We conclude that such circumstances, if
taken as true, fail to constitute “extraordinary
circumstances” necessary to add the proposed
parties after judgment because the factors
stressed by the Supreme Court in Garcia are
still present in this case: (1) that Claimant at all
times knew of the existence of the proposed
employers and their potential liability, and (2)
the proposed employers would be prejudiced
by being added post-judgment for the same
reasons set forth in Garcia.
¶21 Furthermore, even if Claimant is asserting that Wildcat, or the proposed employers,
fraudulently misrepresented to Claimant that
Wildcat had workers’ compensation insurance
in place and that he should therefore only
name Wildcat as an employer, “[a] final order
by the Workers’ Compensation Court can be
vacated or modified only (a) in a proceeding instituted in this court within the prescribed time
interval [i.e., by a timely appeal] or (b) in a
district court action where relief is sought from
an award procured by extrinsic fraud.” Stidham
v. Special Indem. Fund, 2000 OK 33, ¶ 7, 10 P.3d
880 (footnote omitted).4 As accurately stated by
the trial court, the July 2012 Order was never
appealed and became a final order. Furthermore,
Claimant has not attempted to pursue an action
in the district court seeking to vacate or modify
the July 2012 Order on the basis that it was procured by extrinsic fraud. Therefore, even if that
order was somehow “irregular or erroneous,” it
cannot be treated as void because its terms were
within the court’s jurisdiction. Id. ¶ 9.
¶22 Finally, because the July 2012 Order is a
final order, the doctrine of claim preclusion is
pertinent to our analysis. Claim preclusion
“operates to bar relitigation by the parties or
their privies of issues which either were or
could have been litigated in a prior action which
resulted in a final judgment on the merits.” Sill
v. Hydrohoist Int’l, 2011 OK CIV APP 80, ¶ 12,
262 P.3d 377 (citation omitted) (footnote omitted). Pursuant to this doctrine, “a final judgment on the merits of an action precludes the
978
parties from relitigating not only the adjudicated claim but also any theories or issues that
were actually decided, or could have been
decided, in that action.” Id. (citation omitted).
The liability of the proposed employers, whose
connection to the case was known throughout
the proceedings below, is clearly an issue that
could have been litigated in the proceedings
that resulted in the trial court’s final order of
July 2012. Therefore, Claimant’s attempt to add
the proposed employers — whether connected
to an attempt to relitigate the issues already
determined at the July 2012 trial, or whether
part of an attempt to retrospectively determine
the issues as they relate to the proposed
employers based on liability speculation drawn
from the proceedings at which the proposed
employers were absent — is barred by claim
preclusion.
¶23 Claimant chose to name only Wildcat as
an employer, and, in violation of Workers’
Compensation Rule 34, he did not attempt to
amend his Form 3 to add the additional
employers until over two years after the trial
and compensation order. Because the proposed
employers were not parties to those proceedings, proceedings which resulted in a final
order, the trial court properly determined it is
without authority to join those parties — parties whose potential liability was not raised or
reserved by either party at trial.5 For these and
the additional reasons discussed above, we
sustain the Order.
CONCLUSION
¶24 Based on our review, we sustain the
Order of the three-judge panel affirming the
trial court’s “Miscellaneous Order” denying
Claimant’s motion to join additional parties as
employers.
¶25 SUSTAINED.
THORNBRUGH, P.J., and RAPP, J., concur.
1. Although Retherford is not a compensation case, the Supreme
Court, as quoted above in Franklin, has stated that the “long-standing
district court axiom that a single cause of action cannot be split”
applies in the Workers’ Compensation Court (now, Court of Existing
Claims). Therefore, Supreme Court cases applying this axiom in other
circumstances are instructive.
2. R. at 88 (emphasis added).
3. Although not clearly stated by Claimant, we will assume for
purposes of this discussion that Claimant is asserting he was told that
Wildcat had adequate workers’ compensation coverage in place.
4. Although not pertinent to this case, we note that a final order
may also be collaterally attacked as void based on a jurisdictional
infirmity present on the face of the record. Id.
5. We note that Claimant cites to Dean’s Well Service v. Lane, 1992 OK
CIV APP 126, 842 P.2d 765 (memorandum opinion), where a separate
Vol. 87 — No. 13 — 5/14/2016
Division of this Court determined that, under certain circumstances, a
previously dismissed party may become liable as a secondarily liable
employer to pay workers’ compensation benefits to a claimant when the
primarily liable employer files for bankruptcy and the first insurance
carrier proves to be non-existent. Unlike in the present case, however,
in Lane the claimant timely set forth the secondarily liable employer in his
Form 3 prior to trial. On appeal, this Court essentially concluded that the
trial court erred as a matter of law by granting the motions of the other
respondents to dismiss the secondarily liable employer from the case.
Hence, the circumstances presented in Lane are entirely distinguishable from the circumstances of the present case, and the basis of the
addition of the secondarily liable employer in Lane — that that party
was timely added in the Form 3 as an employer but was improperly
dismissed by the trial court — is absent from the present case.
2016 OK CIV APP 26
IN THE MATTER OF THE ADOPTION OF
K.L.C., A MINOR CHILD: TIMOTHY
JAMES METROVICH, Petitioner/Appellant,
vs. VINCENT LEE COUGHRAN,
Respondent/Appellee.
or maintain a substantial positive relationship
with K.L.C., both for a period of twelve consecutive months out of the fourteen months
preceding the filing of the petition for adoption. After a hearing, the court found that Stepfather failed to meet his burden on both
grounds and that K.L.C. was not eligible for
adoption without Father’s consent.
¶3 Stepfather’s sole proposition of error on
appeal is that he presented clear and convincing evidence showing Father willfully failed to
support K.L.C.1 Title 10 O.S. 2011 §7505-4.2
provides, in pertinent part:
TULSA COUNTY, OKLAHOMA
B. Consent to adoption is not required from
a parent who, for a period of twelve (12)
consecutive months out of the last fourteen
(14) months immediately preceding the filing of a petition for adoption of a child . . .
has willfully failed, refused, or neglected to
contribute to the support of such minor:
HONORABLE KURT G. GLASSCO, JUDGE
...
Case No. 114,212. March 18, 2016
AFFIRMED
Catherine Welsh, Jim C. McGough, WELSH &
MCGOUGH, PLLC, Tulsa, Oklahoma, for Petitioner/Appellant,
Brian Melton, THE LAW OFFICES OF JOHN
M. DUNN, PLLC, Tulsa, Oklahoma, for Respondent/Appellee,
Angela N. Monroe, OFFICE OF THE PUBLIC
DEFENDER, Tulsa, Oklahoma, for the Minor
Child.
¶1 Petitioner/Appellant Timothy James
Metrovich (Stepfather) appeals from an order
denying his petition to adopt minor child
K.L.C. without the consent of K.L.C.’s natural
father, Respondent/Appellee Vincent Lee
Coughran (Father). We find Stepfather failed to
present clear and convincing evidence that
Father willfully failed to contribute to K.L.C.’s
support for twelve consecutive months out of
the last fourteen months immediately preceding the filing of the petition for adoption.
¶2 Stepfather filed a petition to adopt his
stepdaughter, K.L.C., and an application for an
order determining K.L.C. eligible for adoption
without Father’s consent on January 13, 2015.
The application alleged Father’s consent was
not needed for the adoption because he had (1)
willfully failed to contribute to the support of
K.L.C. and (2) willfully failed to establish and/
Vol. 87 — No. 13 — 5/14/2016
2. According to such parent’s financial ability to contribute to such minor’s support if
no provision for support is provided in an
order.
The issue of willfulness is a question of fact. In
re Adoption of D.L.A., 2003 OK CIV APP 7, ¶4,
62 P.3d 796, 798 (citation omitted). The burden
was on Stepfather to present clear and convincing evidence to prove Father willfully failed to
support K.L.C. In re Adoption of C.D.M., 2001
OK 103, ¶13, 39 P.3d 802, 807. On appeal, we
review the record to determine whether Stepfather presented clear and convincing evidence
and whether the trial court’s findings are contrary to such clear and convincing evidence.2
¶4 Stepfather notes that Father was gainfully
employed during the relevant time period and
that Father knew where Natural Mother
worked and where her parents lived, yet Father
never sent Mother any money. Despite these
facts, we find the trial court did not err when it
found Stepfather failed to meet his burden.
Father filed a petition to establish paternity,
asking the court to determine paternity, set
visitation, and establish child support payments, two and a half months prior to the filing of Stepfather’s petition for adoption.3 This
demonstrates Father’s willingness to provide
support. See In re Adoption of D.L.A., 2003 OK
CIV APP 7, ¶16, 62 P.3d at 800. Father also testified he purchased gifts for K.L.C. and set aside
money for her support, but when he contacted
979
Mother to discuss visitation and support, he
received no response. Although Stepfather and
Mother testified that Father did not contact her
regarding support, “[t]he trial court is entitled
to choose which testimony to believe as the
judge has the advantage over this Court in
observing the behavior and demeanor of the
witnesses.” Mueggenborg v. Walling, 1992 OK
121, ¶7, 836 P.2d 112, 114.
¶5 Upon review of the record, we find the
trial court properly determined that Stepfather
failed to show, by clear and convincing evidence, that Father had willfully failed to support K.L.C. The order denying Stepfather’s
petition to adopt without Father’s consent is
AFFIRMED.
BUETTNER, V.C.J., P.J., and GOREE, J., concur.
1. Stepfather did not appeal the court’s finding that he failed to
show Father willfully failed to establish or maintain a relationship
with K.L.C.
2. Appeals in these types of cases typically stem from the court’s
ordering an adoption without consent. In those cases, the standard of
review has been clearly articulated: “The decision of the trial court will
not be disturbed unless it fails to rest on clear and convincing evidence.” In re Adoption of C.D.M., 2001 OK 103, ¶13, 39 P.3d at 807
(footnote omitted). In cases like the one at hand, in which the trial
court denies the application to adopt without consent, application of
that review standard is illogical, if not nonsensical. Applying that
standard here would require a determination that there was clear and
convincing evidence that there was no clear and convincing evidence
establishing the statutory ground for finding the child eligible for
adoption without Father’s consent.
3. The paternity action, filed in Wagoner County, was transferred
to Tulsa County upon Stepfather’s motion to intervene and Stepfather
and Mother’s joint motion to transfer and was consolidated with the
adoption proceedings.
2016 OK CIV APP 27
THE KEY FINANCE, INC., Plaintiff/
Counter-Defendant/Appellee, vs. DJ KOON,
Defendant/Counter-Plaintiff/Appellant.
Case No. 112,853. October 6, 2015
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE THOMAS E. PRINCE,
TRIAL JUDGE
FURTHER PROCEEDINGS
Mark K. Stonecipher, FELLERS, SNIDER,
BLANKENSHIP, BAILEY & TIPPENS, P.C.,
Oklahoma City, Oklahoma, for Plaintiff/Counter-Defendant/Appellee
M. Kathi Rawls, Minal Gahlot, RAWLS LAW
OFFICE, PLLC, Moore, Oklahoma, for Defendant/Counter-Plaintiff/Appellant
980
JERRY L. GOODMAN, VICE-CHIEF
JUDGE:
¶1 DJ Koon (Koon) appeals an April 16, 2014,
order granting Key Finance, Inc.’s (Key) motion
for directed verdict and motion to compel arbitration. Based upon our review of the record and
applicable law, we reverse and remand for further proceedings consistent with this opinion.
BACKGROUND
¶2 Koon purchased a 2005 Nissan Sentra
from The Key, Inc. d/b/a The Key Cars (Key
Cars) on July 14, 2012. To purchase the vehicle,
Koon executed a Purchase Agreement, a Motor
Vehicle Retail Installment Sales Contract, and
an Arbitration Agreement as well as financing
with Key. The Arbitration Agreement provides
“ARBITRATION AGREEMENT,” and “This
Arbitration Agreement significantly affects
your rights in any dispute with us. Please
read this Arbitration Agreement carefully
before you sign it.”
¶3 Koon subsequently defaulted on his loan
with Key. Key repossessed the vehicle, sold it,
and on June 28, 2013, filed suit to collect on the
deficiency owed. Koon answered and counterclaimed for violation of the Uniform Commercial Code, Oklahoma Consumer Protection
Act, Federal Odometer Act, Oklahoma Vehicle
License and Registration Act, inter alia, and
seeking to certify a class action.
¶4 On October 11, 2013, Key filed a motion to
dismiss and motion to compel arbitration.
Koon objected, requesting a hearing on the
motion to compel arbitration, asserting lack of
assent, fraud, waiver, and unconscionability.
Koon contended, inter alia, Key’s agent falsely
explained the Arbitration Agreement to him,
stating it awarded an attorney’s fee to Key if
Koon defaulted on payments and litigation
was necessary. In addition, Koon asserted that
neither the Purchase Agreement nor Retail
Installment Sales Contract contained an arbitration agreement. The Retail Installment Sales
Contract did, however, contain an acknowledgement that provides: “If checked, I acknowledge that you and I have signed a separate
arbitration agreement. That agreement is hereby attached and the terms are incorporated
into the terms of this contract.” Koon noted the
box was not checked. Thus, Koon maintained
assent was lacking.
¶5 The trial court ultimately granted Key’s
motion to compel arbitration by order entered
Vol. 87 — No. 13 — 5/14/2016
on January 22, 2014, stating “[a]ll claims asserted in this action by the parties are hereby compelled to be pursued in a binding arbitration….”
On February 3, 2014, Koon filed a motion to
reconsider, asserting fraud, lack of assent, and
waiver. The trial court granted the motion and
ordered the parties to appear for an evidentiary
hearing on the “limited issue of whether [Key’s]
agent conveyed a false impression to [Koon]
with respect to the arbitration agreement….”
submit a particular dispute to arbitration.”
KWD River City Invs., L.P. v. Ross Dress for Less,
Inc., 2012 OK 76, ¶ 3, 288 P.3d 929, 930. “Generally, the existence of an agreement to arbitrate is
a question of law to be reviewed by a de novo
standard.” Bruner v. Timberlane Manor Ltd. P’ship,
2006 OK 90, ¶ 8, 155 P.3d 16, 20. We also review
de novo “an order granting or denying a motion
to compel arbitration.” Thompson v. Bar-S Foods
Co., 2007 OK 75, ¶ 9, 174 P.3d 567, 572.
¶6 A hearing was held on April 10, 2014.
Koon testified Key’s agent explained the Arbitration Agreement to him by stating that if
Koon took legal action and lost or Key was
required to undertake legal action, Koon would
be responsible for its attorney’s fee. Koon stated the agent never mentioned it was an arbitration agreement or that the document limited
his rights to court. After Koon testified, the trial
court granted Key’s motion for directed verdict, finding Key’s agent did not convey a false
impression to Koon regarding the Arbitration
Agreement. By order entered on April 16, 2014,
the trial court stayed the action pending the
completion of binding arbitration. Koon
appeals.
ANALYSIS
STANDARD OF REVIEW
¶7 A motion for directed verdict presents
“the question of whether there is any evidence
to support a judgment for the party against
whom the motion is made.” Woods v. Fruehauf
Trailer Corp., 1988 OK 105, ¶ 8, 765 P.2d 770,
773. In ruling on such a motion, a trial court
must consider as true all the evidence and all
the inferences reasonably drawn therefrom
that are favorable to the party opposing the
motion. Id. “[A]ny conflicting evidence favorable to the movant must be disregarded.” Id.
[A] motion for a directed verdict should be
denied when there is a controverted question of fact as to which reasonable minds
could differ. The motion should be granted,
however, if the party opposing the motion
has failed to demonstrate a prima facie case
for recovery.
Guthrie v. Independent Sch. Dist. No. I-30 of Adair
Cty., 1998 OK CIV APP 47, ¶ 10, 958 P.2d 802,
804 (citations omitted). This Court’s standard
of review of a trial court’s grant of a directed
verdict is de novo. Computer Pub’s, Inc. v. Welton,
2002 OK 50, ¶ 6, 49 P.3d 732, 735.
¶8 With respect to arbitration, “[t]he court
must determine whether the parties agreed to
Vol. 87 — No. 13 — 5/14/2016
¶9 Koon asserts several propositions of error
on appeal. However, Koon has only appealed
the April 16, 2014, order. Accordingly, this
appeal is limited to: 1) whether the trial court
properly granted Key’s motion for directed
verdict, finding there was no fraud in the
inducement of the Arbitration Agreement; and
2) whether the trial court therefore properly
granted Key’s motion to compel arbitration.
¶10 “The [Federal Arbitration Act] [“FAA”]
applies to contracts affecting interstate commerce. 9 U.S.C.A. § 1 (2000).” Rogers, 2005 OK
51, ¶ 11, 138 P.3d 826, 829. “The FAA reflects
the fundamental principle that arbitration is a
matter of contract.” Rent-A-Center, W, Inc. v.
Jackson, 561 U.S. 63, 67 (2010). “The FAA thereby places arbitration agreements on an equal
footing with other contracts … and requires
courts to enforce them according to their
terms.” Id. (citations omitted). “Like other contracts, however, they may be invalidated by
‘generally applicable contract defenses, such as
fraud, duress, or unconscionability.’” Id. at 68
(quoting Doctor’s Associates, Inc. v. Casarotto,
517 U.S. 681, 687 (1996)). The FAA “is a congressional declaration of a liberal federal policy
favoring arbitration agreements.” Continental
Cas. Co. v. Am. Nat’l Ins. Co., 417 F.3d 727, 73031 (7th Cir. 2005) (quoting Moses H. Cone Mem’l
Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24
(1983)). “[A]ny doubts concerning the scope of
arbitrable issues should be resolved in favor of
arbitration.” Id.
¶11 Title 9 U.S.C.A. § 2 provides:
A written provision in any maritime transaction or a contract evidencing a transaction
involving commerce to settle by arbitration
a controversy thereafter arising out of such
contract or transaction, or the refusal to perform the whole or any part thereof, or an
agreement in writing to submit to arbitration an existing controversy arising out of
such a contract, transaction, or refusal,
981
shall be valid, irrevocable, and enforceable,
save upon such grounds as exist at law or
in equity for the revocation of any contract.
¶12 In Rent-A-Center, the United States Supreme Court explained:
There are two types of validity challenges
under § 2. “One type challenges specifically
the validity of the agreement to arbitrate,”
and “[t]he other challenges the contract as a
whole, either on a ground that directly
affects the entire agreement (e.g., the agreement was fraudulently induced), or on the
ground that the illegality of one of the contract’s provisions renders the whole contract invalid.” Buckeye, 546 U.S., at 444, 126
S.Ct. 1204. In a line of cases neither party
has asked us to overrule, we held that only
the first type of challenge is relevant to a
court’s determination whether the arbitration agreement at issue is enforceable. See
Prima Paint Corp. v. Flood & Conklin Mfg.
Co., 388 U.S. 395, 403-404, 87 S.Ct. 1801, 18
L.Ed.2d 1270 (1967); Buckeye, supra, at 444446, 126 S.Ct. 1204; Preston v. Ferrer, 552
U.S. 346, 353-354, 128 S.Ct. 978, 169 L.Ed.2d
917 (2008). That is because 9 U.S.C.A. 2
states that a “written provision” “to settle
by arbitration a controversy” is “valid, irrevocable, and enforceable” without mention
of the validity of the contract in which it is
contained. Thus, a party’s challenge to
another provision of the contract, or to the
contract as a whole, does not prevent a
court from enforcing a specific agreement
to arbitrate. “[A]s a matter of substantive
federal arbitration law, an arbitration provision is severable from the remainder of the
contract.” Buckeye, 546 U.S., at 445, 126 S.Ct.
1204; see also id., at 447, 126 S.Ct. 1204 (the
severability rule is based on 9 U.S.C.A. 2).
Id. at 70-71.
¶13 The elements of actionable fraud are: (1)
a material misrepresentation; (2) known to be
false at the time made; (3) made with specific
intent that a party would rely on it; and (4) reliance and resulting damage. Bowman v. Presley,
2009 OK 48, ¶ 13, 212 P.3d 1210, 1218. Fraud is
divided into actual fraud and constructive
fraud. Patel v. OMH Med. Ctr., Inc., 1999 OK 33,
¶ 34, 987 P.2d 1185, 1199 (citations omitted).
Actual fraud requires the intentional misrepresentation or concealment of a material fact
which substantially affects another person.
Faulkenberry v. Kansas City Southern Railway Co.,
982
1979 OK 142, ¶ 4, 602 P.2d 203, 206. Constructive fraud is a breach of either a legal or equitable duty that does not necessarily involve
any moral guilt, intent to deceive, or actual
dishonesty of purpose. Id. It may be defined as
any breach of a duty which, regardless of the
actor’s intent, gains an advantage for the actor
by misleading another to his prejudice. Patel, at
¶ 34, 987 P.2d at 1199. Where a party has a duty
to speak, but remains silent, there may be constructive fraud. Evers v. FSF Overlake Assocs.,
2003 OK 53, ¶ 16 fn.3, 77 P.3d 581, 587 fn.3 (citations omitted).
¶14 In Deardorf v. Rosenbusch, 1949 OK 117, ¶
8, 206 P.2d 996, 998, the Oklahoma Supreme
Court held:
A duty to speak may arise from partial disclosure, the speaker being under a duty to
say nothing or to tell the whole truth. One
conveying a false impression by the disclosure of some facts and the concealment
of others is guilty of fraud, even though
his statement is true as far as it goes, since
such concealment is in effect a false representation that what is disclosed is the
whole truth.
“In determining whether there is a duty to
speak, consideration must be given to the situation of the parties and matters with which
they are dealing.” Silk v. Phillips Pet. Co., 1988
OK 93, ¶33, 760 P.2d 174, 179. “If on account of
peculiar circumstances there is a positive duty
on the part of one of the parties to a contract to
speak, and he remains silent to his benefit and
to the detriment of the other party, the failure
to speak constitutes fraud.” Id.
¶15 In the present case, Koon asserted that
Key’s agent affirmatively represented the following about the document he was signing: 1)
if they had to sue, Koon would be responsible
for their attorney’s fee and all costs of their
attorney; 2) that “if I took legal action against
them and lost, I’d have to pay their attorneys[‘]
fees;” 3) after Koon hesitated in signing the
document, Key’s agent told him he had to sign
the document if he wanted to buy the car; and
4) that Key’s agent never told him that the
Arbitration Agreement meant he was giving
up his rights to court.
¶16 Viewing as true “all evidence favorable
to [Koon] and all reasonable inferences drawn
therefrom, and disregarding all evidence favorable to [Key],” we must reverse the trial court’s
grant of Key’s motion for directed verdict.
Vol. 87 — No. 13 — 5/14/2016
Computer Pub’s, Inc. v. Welton, 2002 OK 50, ¶ 6,
49 P.3d 732, 735. Koon has presented evidence
that Key’s agent owed him a duty of full disclosure because the agent chose to speak regarding the Arbitration Agreement. The fact that
this is an arbitration agreement is clearly a
material fact. However, silence as to a material
fact is not necessarily, as a matter of law, equivalent to a false representation; there must have
been an obligation to speak. Key’s agent’s partial disclosure or representation to Koon conveyed a false impression of the purpose and
content of the document he signed, i.e., stating
the document awarded an attorney’s fee to Key
if Koon defaulted on payments and litigation
was necessary. As a result, a duty to speak
arose, “the speaker being under a duty to say
nothing or to tell the whole truth.” Deardorf,
1949 OK 117, at ¶ 8, 206 P.2d at 998. Although
there is no evidence Koon is illiterate, that he
was prevented from reading the document, or
that the agent’s statements were necessarily
untrue, “one conveying a false impression by
the disclosures of some facts and the concealment of others is guilty of fraud . . . since concealment is in effect a false representation that
what is disclosed is the whole truth.” Uptegraft
v. Dome Pet. Corp., 1988 OK 129, ¶ 10, 764 P.2d
1350, 1353. Accordingly, the trial court erred in
granting Key’s motion for directed verdict.
CONCLUSION
¶17 The trial court’s April 16, 2014, order
compelling arbitration upon the granting of a
directed verdict finding no fraud in the inducement of the Arbitration Agreement is therefore
in error and is reversed. The matter is remanded to the trial court for further proceedings
consistent with this opinion.
¶18 REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
FISCHER, P.J., and WISEMAN, J., concur.
2016 OK CIV APP 28
SHERRINE LYNN O’BRIEN, Petitioner/
Appellee, vs. CHRIS ALLEN BERRY,
Defendant/Appellant.
Case No. 113,216. March 28, 2016
LINCOLN COUNTY, OKLAHOMA
HONORABLE DAWSON ENGLE,
TRIAL JUDGE
Vol. 87 — No. 13 — 5/14/2016
AFFIRMED
James J. Hodgens, JAMES J. HODGENS, PC,
Stroud, Oklahoma, for Petitioner/Appellee
Joseph M. Vorndran, George Wright, STUART
& CLOVER, PLLC, Shawnee, Oklahoma, for
Defendant/Appellant
¶1 Chris Allen Berry appeals an order of protection issued pursuant to the Protection from
Domestic Abuse Act, 22 O.S.2011 & Supp. 2013
§§ 60 to 60.20, in favor of Sherrine Lynn
O’Brien. Berry argues that O’Brien failed to
prove an act of domestic abuse required to
obtain an order of protection, that the district
court erred in refusing to admit certain exhibits
he offered during the trial and the district
court’s order is precluded by a ruling in his
favor on the same matter issued by the tribal
court in which O’Brien first filed for a protective order. Berry has failed to show an abuse of
discretion by the district court, and we affirm.
BACKGROUND
¶2 O’Brien and Berry had been living together for approximately fourteen months in what
the district court described as a “domestic intimate relationship.” On the morning of July 20,
2014, the parties were involved in a physical
altercation, one of several during the time the
parties were together. O’Brien left Berry’s home
after the altercation and stayed in lodging provided by the House of Hope. She moved out of
Berry’s home the following day.
¶3 O’Brien filed an application for a protective order in the District Court of the Citizen
Potawatomi Nation on July 25, 2014. A “show
cause” hearing was held four days later. At the
conclusion of that hearing, the tribal judge
declined to issue an emergency protective
order and set the matter for trial on August 26,
2014. O’Brien voluntarily dismissed her tribal
court action on August 5, 2014.
¶4 On August 11, 2014, O’Brien filed this
action. The matter was tried and district court
found that O’Brien had met her burden of
proof. Berry appeals the protective order issued
on that date.1
STANDARD OF REVIEW
¶5 Orders issued pursuant to proceedings
invoking the Protection from Domestic Abuse
Act are reviewed for an abuse of discretion.
Curry v. Streater, 2009 OK 5, 213 P.3d 550.
983
Under an abuse of discretion standard, the
appellate court examines the evidence in
the record and reverses only if the trial
court’s decision is clearly against the evidence or is contrary to a governing principle of law. State ex rel. Tal v. Oklahoma City,
2002 OK 97, ¶ 3, 61 P.3d 234, 240. To reverse
under an abuse of discretion standard, an
appellate court must find the trial court’s
conclusions and judgment were clearly
erroneous, against reason and evidence.
Oklahoma Tpk. Auth. v. Little, 1993 OK 116, ¶
6, 860 P.2d 226, 228.
Id. ¶ 8.
ANALYSIS
¶6 The evidence produced at trial was conflicting. O’Brien testified that on the morning
of July 20, she was at home after working the
night shift at the casino where she was employed as a security guard. She had a couple of
drinks before Berry returned home from the
night shift he worked as a police officer for the
Citizen Potawatomi Nation. They had one
drink together, and then O’Brien went to bed.
She testified that she woke up because Berry
was screaming her name. She realized he was
very angry, so she pretended she was still
asleep. According to O’Brien, Berry threw her
out of the bed, dragged her to the bathroom
skinning her knees, stood on her foot cutting
her ankle, put her in the shower and turned on
the cold water. When she attempted to leave the
house, Berry blocked her path and choked her,
causing bruising to her throat and chest. Eventually, Berry called neighbors, who took O’Brien,
at her request, to the casino where she worked.
O’Brien also testified that she filed a police
report regarding the incident and, after she
moved out, Berry had come to her place of work
and stood nearby trying to intimidate her.
¶7 Berry appeared pro se at the hearing. He
testified that after he and O’Brien had one
drink together, she went to the bedroom, where
he found her lying on the floor next to the bed
and unresponsive. Berry testified that he
believed O’Brien was having a reaction to the
antidepressant medication she was taking,
which was brought on by her “heavy drinking,” and that she might have “poisoned herself.” He claimed he tried to revive her, and
when he was not successful he put her in the
shower and then phoned the sheriff’s department, but the department would not send over
a deputy. However, Berry’s testimony also re984
vealed that he informed the sheriff’s department that he “had a domestic situation,” and
did not mention any medical emergency
involving O’Brien. Based on the information
Berry provided during that phone call, the
sheriff’s department advised him “to go get an
eviction notice.” On cross-examination, Berry
testified that he did not call 911, contrary to his
training as a “first responder.” He testified that
when O’Brien “finally came to” she started
screaming that she wanted to leave. He called
the next door neighbors, who came to his home
and took O’Brien with them.
¶8 Both neighbors and Berry’s son also testified. These witnesses generally supported
some aspects of Berry’s version of the incident.
They also supported aspects of O’Brien’s testimony, including the injury to her knees. However, because none of these witnesses had any
personal knowledge of the actual altercation
between O’Brien and Berry, they were not able
to testify regarding any details of the incident.
The district court found that O’Brien had “met
her burden of proof” and granted her request
for a protective order.
I. What Constitutes Domestic Abuse
¶9 Berry’s appeal raises various arguments.
He argues that O’Brien failed to prove by
“clear and convincing evidence” that she was
physically harmed. Berry has not cited any
authority supporting his contention that
O’Brien was required to prove domestic abuse
by clear and convincing evidence. We find
nothing in the Protection from Domestic Abuse
Act, or any case interpreting the Act, imposing
this heightened burden of proof on O’Brien.
The focus of Berry’s argument, however, is on
the evidence required to prove “domestic
abuse,” and raises an issue not previously
decided: What constitutes domestic abuse
resulting from physical harm for purposes of
the Protection from Domestic Abuse Act?2 As
relevant to this case, “domestic abuse” is defined as “any act of physical harm . . . which is
committed by an adult . . . against another
adult . . . who are or were in a dating relationship.” 22 O.S.2011 § 60.1(1). “A victim of
domestic abuse . . . may seek relief under the
provisions of the Protection from Domestic
Abuse Act.” 22 O.S. Supp. 2013 § 60.2.
A. Evidence Necessary to Prove
Physical Harm
¶10 Berry argues that this Court has previously declined to define “physical harm” as
Vol. 87 — No. 13 — 5/14/2016
that term is used in the Act. See Marquette v.
Marquette, 1984 OK CIV APP 25, 686 P.2d 990
(holding the Act is civil, not criminal in nature
and refusing to adopt the beyond-a-reasonable-doubt burden of proof applicable in criminal cases). Berry’s reliance on Marquette is
misplaced for two reasons. First, the Marquette
Court did not refuse to define “physical harm.”
It merely refused to adopt a “’blood and guts’
interpretation” of the statutory language. Id. ¶
12. Second, the version of the statute at issue in
Marquette differs from the version of the statute
applicable in this case. No longer is a plaintiff
required to prove “serious physical harm” in
order to obtain an order of protection, as was
required when Marquette was decided. See 22
O.S. Supp. 1983 § 60.1. An order of protection is
now authorized on proof of “any act of physical harm.” 22 O.S.2011 § 60.1(1).
¶11 Berry relies on photographs taken of
O’Brien the day of the incident.3 He contends
these photographs show minimal injuries to
O’Brien. It does not matter that O’Brien
received only “minor injuries” as Berry contends. Berry engaged in domestic abuse if he
caused “any act of physical harm.” The fact that
the Legislature amended the Protection from
Domestic Abuse Act to delete the requirement
for proof of “serious injury” fully addresses
Berry’s argument. Where, as here, the Legislature amends a statute that “expresses a clear and
unambiguous intent . . . [the] legislative amendment is presumed to change the existing law.”
Samman v. Multiple Injury Trust Fund, 2001 OK
71, ¶ 13, 33 P.3d 302. Pursuant to the applicable
statute in this case, domestic abuse is shown by
evidence of “any act of physical harm” whether
or not the perpetrator deems the harm serious.
B. Intent to Harm
¶12 Next, Berry argues that even though
O’Brien might have suffered some physical
harm, he did not intend to harm her, and any
harm she sustained was either self-inflicted or
incidental to his efforts to revive her when he
found her unresponsive. He contends we
should adopt the tort of battery definition of
intent or the “willful” and “unlawful” use of
force or violence elements required to prove
the crime of domestic abuse. See 21 O.S.2011 §
644(C) and Oklahoma Uniform Jury Instructions - [OUJI] Criminal No. 4-26A. The Protection from Domestic Abuse Act authorizes an
order of protection on proof of: (1) domestic
abuse, (2) stalking or (3) harassment. “Stalking” and “harassment” are both defined in the
Vol. 87 — No. 13 — 5/14/2016
Act in terms of willful, malicious and knowing
conduct. 22 O.S.2011 § 60.1(2) and (3). No similar language appears in the definition of
domestic abuse. Nonetheless, we find that the
Act requires some element of intent.
¶13 First, we note that the Supreme Court
reached this conclusion in determining “the
elements of domestic abuse by threat of imminent harm under the Act.” Curry v. Streater,
2009 OK 5, ¶ 14. The Court found that “[a]
threat is ‘[a]n expression of an intention to
inflict’ . . . imminent physical harm” or a ‘communicated intent to inflict physical or other
harm on any person or on property.’” Id. ¶ 15
(quoting American Heritage Dictionary 1265
(2nd coll. ed. 1976), and Black’s Law Dictionary
1327 (5th ed. 1979)). It would be absurd to
require proof of intent to threaten harm but not
proof of intent to actually physically harm,
particularly when those two actions appear in
the same definition of domestic abuse. See Ledbetter v. Okla. Alcoholic Beverage Laws Enforcement Comm’n, 1988 OK 117, ¶ 7, 764 P.2d 172
(statutory construction that would lead to an
absurdity must be avoided). Further, exempting acts of physical harm from the intent
required to prove all other acts authorizing an
order of protection (i.e., threats of harm, stalking and harassment) is antithetical to a consistent construction of the Act. See Okla. Ass’n for
Equitable Taxation v. City of Oklahoma City, 1995
OK 62, ¶ 5, 901 P.2d 800 (legislative intent is
ascertained from the whole act based on its
general purpose and objective and construing
relevant provisions together to give full force
and effect to each).
¶14 In the absence of a statutory definition,
we look to the ordinary meaning of the phrase
“any act of physical harm” as did the Supreme
Court in Curry. As relevant here, an “act” is
“the process of doing or performing” or “the
external manifestation of [a person’s] will.”
Black’s Law Dictionary 24-25 (7th ed. 1999).
For context, we look to the meaning of “abuse,”
which is also defined as an intentional act, e.g.,
“[p]hysical or mental maltreatment.” Id. at 10.
We find that the element of intent required in
cases of civil battery best defines the level of
intent required to prove an act of domestic
abuse. “A person intends to commit a battery if
[he/she] acts for the purpose of making a
[harmful/offensive] contact with another.”
OUJI-Civil No. 19.8.
C. O’Brien’s Physical Harm
985
¶15 Berry did not object when O’Brien introduced photographs of her injuries taken three
days after the incident. Berry did not include
the photographs O’Brien introduced in this
appellate record. However, the transcript of
O’Brien’s trial testimony reflects her description of injuries to her arm, chest, throat, ankle
and knees as depicted by those photographs.
Therefore, we must assume O’Brien’s photographic exhibits are representative of the injuries
O’Brien described during her trial testimony.
“The appellant bears the total responsibility for
including in the appellate record all materials
necessary to secure corrective relief.” Hamid v.
Sew Original, 1982 OK 46, ¶ 6, 645 P.2d 496. The
injuries O’Brien described are consistent with
her version of the altercation and the physical
harm Berry inflicted. Even the photographs
that Berry claims the district court erroneously
excluded confirm injury to O’Brien’s knees,
ankle and throat.
¶16 Nonetheless, Berry argues that the injuries O’Brien described are consistent with his
claim that her injuries resulted from an accidental slip and fall on the linoleum floor as she
was running from the shower, or were incidental to his efforts to revive her. Berry argues that
the “question before this Court is whether
[O’Brien] established that she was subjected to
domestic abuse through physical harm by
Berry.” That is not the question. We may not
re-weigh the evidence or substitute our findings for those of the district court. Curry v.
Streater, 2009 OK 5, ¶ 17. The issue of Berry’s
intent regarding his physical contact with
O’Brien on July 20, 2014, was squarely before
the district court. Although the testimony of
O’Brien and Berry differed regarding how
O’Brien’s injuries occurred, the rule is “well
established” that the district court was in the
best position to determine their credibility. Taylor v. Taylor, 1963 OK 263, ¶ 15, 387 P.2d 648.
After hearing the testimony of all the witnesses
and viewing all of the evidence, the district
court granted O’Brien’s request for a protective
order. We have reviewed the evidence in the
appellate record and find that the district
court’s conclusion that Berry committed
domestic abuse is not “clearly erroneous, [or]
against reason and evidence.” Oklahoma Tpk.
Auth. v. Little, 1993 OK 116, ¶ 6.4
II. The Preclusion Argument
¶17 Berry asserts in his final argument that
the district court’s order is precluded by the
favorable ruling he obtained in the Citizen
986
Potawatomi Nation District Court. Relying on
the doctrine of issue preclusion, he contends
that O’Brien actually litigated her entitlement
to a protective order in tribal court and therefore was barred from relitigating that issue
here. “[O]nce a court has decided an issue of
fact or law necessary to its judgment, the same
parties or their privies may not relitigate that
issue in a suit brought upon a different claim.”
State ex rel. Oklahoma Bar Ass’n v. Giger, 2004 OK
43, ¶ 13, 93 P.3d 32 (footnote omitted). Clearly,
the injuries O’Brien received on July 20, 2014,
were the subject of her Petition for Protective
Order filed in the tribal court. However, that
petition sought to invoke the protection of the
Violence Against Women Act, 18 U.S.C. § 2265.
Berry has not shown that the federal law and
Oklahoma’s Protection from Domestic Abuse
Act are sufficiently identical, requiring a finding that the legal issues O’Brien raised in the
district court were “actually adjudicated” in
tribal court. Carris v. John R. Thomas and Assocs.,
P.C., 1995 OK 33, ¶ 11, 896 P.2d 522.
¶18 Further, Berry mischaracterizes the effect
of the tribal court’s ruling as declining to grant
O’Brien a protective order “on the merits.” The
tribal court heard evidence at a “show cause”
hearing conducted on July 29, 2014. At the conclusion of that hearing, the tribal court denied
what Berry described as O’Brien’s request for
an emergency protective order, and then set the
matter for “an evidentiary hearing” on August
26, 2014. Although there need not be a final
judgment on the merits of the case for issue
preclusion to apply, there must be “a final
determination of a material issue common to
both cases.” Giger, 2004 OK 43, ¶ 13 (footnote
omitted). Berry has not shown, as is his burden, that the tribal court’s ruling determined
the action, prevented a judgment in favor of
O’Brien or possessed the finality required to
invoke issue preclusion. Cf., Nat’l Diversified
Bus. Servs., Inc. v. Corporate Fin. Opportunities,
Inc., 1997 OK 36, ¶ 13, 946 P.2d 662 (final order
as defined in 12 O.S.2011 § 953 will preclude
relitigation of issues encompassed in that
order). In fact, it is apparent from this limited
record that, at the show cause hearing in the
tribal court proceeding, no final determination
was made on O’Brien’s ultimate entitlement to
a protective order. And it is undisputed that
O’Brien dismissed her tribal court action before
that final determination could be made at the
later scheduled evidentiary hearing. Absent a
final determination of the right to a protective
order, O’Brien was “free to abandon the course
Vol. 87 — No. 13 — 5/14/2016
then in pursuit [and] to relaunch or press the
same claim along a different remedial track.”
Id. That is the course of action she chose.
Appellate Practice
CONCLUSION
¶19 The applicable version of the Protection
from Domestic Abuse Act requires proof of
“any act of physical harm” to establish domestic abuse. The seriousness of the injury or harm
is not the determining factor. However, the
defendant must act for the purpose of making
the harmful contact. The district court’s conclusion that Berry did so in this case is not against
the clear weight of evidence in this record and
does not constitute an abuse of discretion. Further, Berry has not demonstrated that the district court’s protective order was precluded by
the proceedings in the Citizen Potawatomi
Nation District Court. The district court’s
August 21, 2014 Order of Protection is affirmed.
Upcoming speakers:
May 16th
D. Kent Meyers, Esq.
June 6th
Darla Jackson, Esq.
July 18th
Gina Hendryx, General Counsel
August 15th
Michael Richie, Clerk
¶20 AFFIRMED.
GOODMAN, C.J., and WISEMAN, P.J., concur.
Regarding the Initiative Petition in 2016
OK 1. (1/0)
Digital legal research update, with Jim
Calloway. (1/0)
Ethics in appeals. (1/1)
How to designate a civil appellate
record. (1/0)
September 19th Ricki Waltersheid, OIDS
Procedural anomalies in Criminal
Appeals. (1/0)
1. O’Brien did not appear or file an answer brief in this appeal.
“Where there is an unexcused failure to file an answer brief, this Court
is under no duty to search the record for some theory to sustain the
trial court judgment; and where the brief in chief is reasonably supportive of the allegations of error, this Court will ordinarily reverse the
appealed judgment with appropriate directions.” Cooper v. Cooper, 1980
OK 128, ¶ 6, 616 P.2d 1154; Okla. Sup. Ct. R. 1.10, 12 O.S. Supp. 2013,
ch. 15, app. 1. However, “[r]eversal is never automatic on a party’s
failure to file an answer brief.” Enochs v. Martin Props., Inc., 1997 OK
132, ¶ 6, 954 P.2d 124 (footnote omitted). If “the record presented fails
to support the error alleged in the brief of the party who lost below, the
decision to be reviewed cannot be disturbed. It is presumed correct
until the contrary is shown by the record.” Id. For the reasons stated in
this Opinion, we find that Berry has failed to show that the district
court’s order of protection was incorrect.
2. In Curry v. Streater, 2009 OK 5, 213 P.3d 550, the Supreme Court
construed the provision of the Protection from Domestic Abuse Act
concerned with the aspect of the definition of domestic abuse resulting
from “threats of imminent physical harm.” 22 O.S.2011 § 60.1(1). The
basis of the district court’s order of protection in this case was the finding of actual “physical harm,” the second aspect of the definition of
domestic abuse. Id.
3. Berry offered these exhibits during his case in chief but did not
lay the foundation necessary to authenticate the photographs, and the
district court sustained O’Brien’s objection “at this time.” Berry also
offered a copy of what he claimed to be the “warning label” on medication O’Brien had been prescribed. Admission of this exhibit was also
denied for lack of a foundation. Berry made no effort thereafter to
correct the lack-of-foundation issue regarding these exhibits or properly authenticate either exhibit. The district court admitted all the other
exhibits Berry offered at the hearing. Berry now argues that the district
court erred in refusing to admit his warning label and photograph
exhibits. Absent a showing that the exclusion of these exhibits affected
a “substantial right” or was so prejudicial that it resulted in a “different” outcome, Berry cannot prevail on this issue. See State ex rel. Dep’t
of Transp. v. Caliber Dev. Co., LLC, 2016 OK CIV APP 1, ¶¶ 23; 24, ___
P.3d ___ (approved for publication by the Supreme Court). Berry has
made no such showing. See Funnell v. Jones, 1985 OK 73, ¶ 4, 737 P.2d
105 (pro se litigants are generally held to the same standards as an
attorney).
4. For this reason, we also find that Berry is not entitled to a “good
Samaritan” or “rescue doctrine” defense.
Vol. 87 — No. 13 — 5/14/2016
11:30 AM
October 17th
Judge Gary Lumpkin
Appellate procedure and the Court of
Criminal Appeals. (1/0)
November 3rd Annual Meeting in OKC
Harvey Ellis, Mark Grossman,
Clyde Muchmore and paralegal
Cathy Johnson. The authors of West’s
Appellate Procedure treatise will
address the nuts and bolts of making an
appeal, for the novice. (3/0)
December 12th Justice John Reif, Judge Brian
Goree, Referee Barbara Swimley,
and Rex Travis. An amicus curiae
panel discussion: how are they prepared,
reviewed and received. (1/0)
Our monthly meetings are held in both OBA’s
Room 131, and in the Room 2205 of the Main
Classroom Building, OSU/Tulsa, by simulcast.
Lunch provided to Section Members.
Non-members are charged $10 for lunch.
RSVP
Mark Koss, chair
[email protected]
987
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Wednesday, April 13, 2016
F-2015-482 — On January 9, 2013 Terri Lee
Frasier, Appellant, entered pleas of guilty in
the District Court of Carter County, Case Nos.
CF-2012-292 and CF-2012-329, to Driving a
Motor Vehicle While Under the Influence of
Alcohol and/or Drugs. Frazier was sentenced
to concurrent terms of five years imprisonment
on each case with all but he first year suspended, and a $1,500.00 fine. On August 25, 2014,
Frasier was charged in the District Court of
Carter County, Case No. CF-2014-484, with
Actual Physical Control of a Vehicle While
Under the Influence. That same day the State
filed a Motion to Vacate Frazier’s suspended
sentences. On March 31, 2015, Frasier’s nonjury trial in CF-2014-484 was combined with
her hearing on the motions to revoke in CF2012-292 and CF-2012-329. The Honorable
Thomas K. Baldwin, who presided at trial,
found Frasier guilty in CF-2014-484, and found
the evidence sufficient to prove she violated
the terms of her probation in the other two
cases. Judge Baldwin sentenced her to seven
years imprisonment and a $1,500.00 fine in
CF-2014-484, and her suspended sentences in
the other two cases were revoked in full. Judge
Baldwin further ordered the sentence in CF-2014484 to be served consecutively to the sentences
in CF-2012-292 and CF-2012-329. Frazier appeals
both the revocation of her suspended sentences
in CF-2012-292 and CF-2012-329 and the Judgment and Sentence in CF-2014-484. The Orders
Nunc Pro Tunc Vacating Order Suspending
Imposition of Judgment and Sentence in Case
Nos. CF-2012-292 and CF-2012-329 and the
Judgment and Sentence of the district court in
Case No. CF-2014-484 are AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson,
J., concurs.
F-2014-1036 — Mario Sylvester Meadows,
Appellant, was tried by jury for the crime of
one count of Using a Vehicle to Facilitate the
Intentional Discharge of a Firearm, After Former Conviction of Two or More Felonies, in
Case No. CF-2013-2484, in the District Court of
988
Oklahoma County. The jury returned a verdict
of guilty and recommended as punishment
forty years imprisonment. The trial court sentenced accordingly. From this judgment and
sentence Mario Sylvester Meadows has perfected his appeal. The Judgment and Sentence
of the district court is AFFIRMED. Appellant’s
application for evidentiary hearing is DENIED.
Opinion by: Hudson, J.; Smith, P.J., Concurs;
Lumpkin, V.P.J., Concurs; Johnson, J., Concurs;
Lewis, J., Concurs in Results.
F-2015-501 — Polly Anne Sanders, Appellant, was tried by jury for the crime of Child
Endangerment by Driving Under the Influence
(Count 1); Driving a Motor Vehicle While Under the Influence of Drugs (Count 2); and Driving with a Suspended License (Count 3) in
Case No. CF-2014-323 in the District Court of
Okmulgee County. The jury returned a verdict
of guilty and recommended as punishment
imprisonment for three (3) years in Count 1,
one year in each of Count 2 and 3. The trial
court sentenced accordingly and ordered the
sentences to run consecutively. From this judgment and sentence Polly Anne Sanders has
perfected her appeal. Opinion by: Lumpkin,
V.P.J.; Smith, P.J., Concur in Results; Johnson, J.,
Concur; Lewis, J., Concur; Hudson, J., Concur.
Thursday, April 14, 2016
F-2015-139 — Brandon Palmer, Appellant,
was tried by jury in Case No. CF-2014-20, in
the District Court of Tulsa County, with the
crimes of Robbery with a Firearm, After Former Conviction of Two or More Felonies
(Count 3), and Assault While Masked or Disguised, After Former Conviction of Two or
More Felonies (Count 10). The jury returned a
verdict of guilty and recommended as punishment life imprisonment on each count. The
Honorable Doug Drummond, District Judge,
merged Counts 3 and 10 at sentencing and sentenced Palmer to life imprisonment on Count 3
with credit for time served. From this judgment and sentence Brandon Palmer has perfected his appeal. AFFIRMED. Opinion by:
Hudson, J.; Smith, P.J., Concurs; Lumpkin,
V.P.J., Concurs; Johnson, J., Concurs; Lewis, J.,
Concurs.
Vol. 87 — No. 13 — 5/14/2016
Friday, April 15, 2016
F-2014-1029 — Delila Pacheco, Appellant,
was tried by jury for the crime of First-Degree
Child-Abuse Murder in Case No. CF-2013-535
in the District Court of Cherokee County. The
jury returned a verdict of guilty and recommended as punishment life imprisonment. The
trial court sentenced accordingly. From this
judgment and sentence Delila Pacheco has perfected her appeal. Judgment and Sentence
AFFIRMED; request for evidentiary hearing
DENIED. Opinion by: Smith, P.J.; Lumpkin,
V.P.J., concur; Johnson, J., concur; Lewis, J.,
concur in result; Hudson, J., concur.
Tuesday, April 19, 2016
F-2014-1064 — William Leon Bauders, Appellant, was tried by jury for the crime of Count I
- Second Degree Felony Murder, Count II - Possession of a Stolen Vehicle, Count IV - Leaving
the Scene of a Fatality Accident and Count V Driving With a Suspended/Revoked License
in Case No. CF-2014-78 in the District Court of
Tulsa County. The jury returned a verdict of
guilty and recommended as punishment life
imprisonment on Count I, five years in Count
II, 10 years on Count IV and a $500 fine in
Count V, with sentences to run consecutively.
The trial court sentenced accordingly. From
this judgment and sentence William Leon
Bauders has perfected his appeal. AFFIRMED.
Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; Johnson, J., concur; Lewis, J., concur; Hudson, J., concur.
RE-2015-0381 — Appellant, Christopher
Aaron Blankenship, pled guilty July 26, 2010,
in Ottawa County District Court Case No.
CF-2010-206 to Count 1 – Attempted Robbery
First Degree, Count 2 – Burglary of an Auto,
and Count 3 – Assault and Battery. He was
given a ten year sentence with five years suspended, with rules and conditions of probation, credit for time served, and a $1,000.00 fine
on Count 1; five years and a $500.00 fine on
Count 2; and a $500.00 fine on Count 3. The
sentences were ordered to run concurrently.
The State filed a motion to revoke Appellant’s
suspended sentence on August 12, 2014. Following a revocation hearing on April 15, 2015,
the Honorable William Culver, Special Judge,
found Appellant violated the terms and conditions of his probation and revoked Appellant’s
suspended sentence in full. Appellant appeals
the revocation of his suspended sentence. The
revocation of Appellant’s suspended sentence
Vol. 87 — No. 13 — 5/14/2016
is AFFIRMED. Opinion by: Lewis, J.; Smith,
P.J.: Concurs; Lumpkin, V.P.J.: Concurs; Johnson, J.: Concurs; Hudson, J.: Concurs.
F-2015-121 — Erica Lashon Harrison, Appellant, was charged and tried by jury for the
crime of first degree malice murder, in violation of 21 O.S.2011, § 701.7, in the district court
of Tulsa County, case number CF-2013-1446,
before the Honorable William C. Kellough, District Judge. The jury found Harrison guilty of
the lesser offense of first degree manslaughter, in
violation of 21 O.S.2011, § 715, and set punishment at twenty-five (25) years imprisonment
and a $10,000.00 fine. The trial court sentenced
Appellant in accordance with the jury verdict.
Appellant perfected an appeal to this Court.
Judgment AFFIRMED. Sentence REVERSED
and REMANDED for resentencing. Opinion by:
Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin,
V.P.J., Concurs in Part and Dissents in Part;
Johnson, J., Concurs; Hudson, J., Concurs in
Part and Dissents in Part.
C-2015-980 — Gary Thomas Schofield, Petitioner, entered a plea of nolo contendere for the
crime of Driving Under the Influence of Intoxicants (Count 1); Driving Under Suspension
(Count 2) and Failure to Use Child Restraint
(Count 3) in Case No. CM-2000-798 in the District Court of Rogers County. On September 21,
2015, Petitioner entered his pleas to each count
before the Honorable Terrell Crosson, Special
Judge. The pleas were acccepted and Petitioner
was sentenced in Counts 1 and 2 to concurrent
sentences of ninety days in county jail, with
credit for time served only in Rogers County
Jail, and costs. In Count 3, a fifty ($50.00) fine
was imposed and costs. On September 29,
2015, Petitioner filed an Application to Withdraw
Cold Plea of Nolo Contest and Reinstate Trial
Rights. At a hearing held on October 26, 2015,
with Petitioner represented by counsel, the
motion to withdraw was denied. It is that
denial which is the subject of this appeal. Opinion by: Lumpkin, V.P.J.; Smith, P.J., concur;
Johnson, J., concur; Lewis, J., concur; Hudson,
J., concur.
F-2015-571 — Jemaine Rashad Lovejoy,
Appellant, was tried by jury for the crime of
Child Neglect in Case No. CF-2014-3779 in the
District Court of Tulsa County. The jury returned a verdict of guilty and assessed punishment at twenty years imprisonment. The trial
989
court sentenced accordingly. From this judgment and sentence Jemaine Rashad Lovejoy
has perfected his appeal. The Judgment and
sentence of the District Court is AFFIRMED.
Opinion by: Johnson, J.; Smith, P.J., concurs;
Lumpkin, V.P.J., concurs; Lewis, J., concurs;
Hudson, J., concurs.
RE-2014-1089 — On September 13, 2010,
Appellant Richard Frazier, represented by
counsel Ron Berry, pled no contest in Craig
County District Court Case No. CF-2009-128.
Counts 2 and 3 were dismissed and Appellant
was convicted on Count 1 and sentenced to
fifteen years imprisonment, with all but the
first five years suspended. On August 29, 2014,
the State filed a First Amended Application to
Revoke Appellant’s suspended sentence in
Case No. CF-2009-128. Following a revocation
hearing, the Honorable J. Dwayne Steidley,
District Judge, found Appellant had violated
the rules and conditions of his probation and
revoked five years and six months of Appellant’s remaining suspended sentence. Appellant appeals. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by:
Johnson, J.; Smith, P.J., Concur; Lumpkin, V.P.J.,
Concur; Lewis, J., Concur; Hudson, J., Concur.
F-2014-1035 — Elbryan Deambre Neal, Appellant, was tried by jury in Case No. CF-2013-1319,
in the District Court of Oklahoma County, for
the crimes of Count 1: Conspiracy to Commit a
Felony; Count 2: Attempted Robbery with a Firearm; Count 5: Kidnapping; Count 8: Burglary in
the First Degree and Count 9: Assault with a
Dangerous Weapon. The jury returned a verdict of guilty and recommended as punishment on Count 1: Ten years imprisonment;
Count 2: Life Imprisonment; Count 5: Twenty
years imprisonment; Count 8: Twenty years
imprisonment; and Count 9: Ten (10) years
imprisonment. The trial court sentenced accordingly ordering the sentences to run consecutively. From this judgment and sentence Elbryan
Deambre Neal has perfected his appeal. AFFIRMED. Opinion by: Hudson, J.; Smith, P.J.,
Concurs in Results; Lumpkin, V.P.J., Concurs;
Johnson, J., Concurs; Lewis, J., Concurs.
Tuesday, May 3, 2016
RE-2015-0395 — Appellant, Jesus Calvillo,
was charged in the District Court of Garfield
County, Case No. CF-2012-471, on August 9,
2012, with Count 1 – Assault and Battery with
a Dangerous Weapon, a felony, and Count 2 –
Failure to Stop for Accident Resulting in Non990
fatal Injury. On December 3, 2013, he was
charged in Garfield County Case No. CM-20131161 with Possession of Controlled Dangerous
Substance, a misdemeanor. Appellant entered
a plea of no contest, after two or more felony
convictions, in both cases on February 18, 2014.
In Case No. CF-2012-471 he was sentenced to
twenty years suspended except for twenty-six
weekends in the Garfield County Jail (to be
completed within one year) on Count 1, and
ten years suspended on Count 2, with rules
and conditions of probation. In Case No.
CM-2013-1161 Appellant was given a one year
suspended sentence. The sentences were all
ordered to run concurrently. The State filed a
motion to revoke the suspended sentence in
each case on January 6, 2015. An amended
application to revoke was filed by the State on
February 23, 2015. Following a revocation
hearing before the Honorable Dennis W. Hladik, District Judge, on April 13, 2015, Appellant’s suspended sentences were revoked in
full, to all run concurrently, and with credit for
time served. Appellant appeals from the revocation of his suspended sentences. The revocation is AFFIRMED. Opinion by: Smith, P.J.:
Lumpkin, V.P.J., concur; Johnson, J., concur;
Lewis, J., concur; Hudson, J., concur.
F-2015-199 — Robert Jerry Phillip Lawrence,
Appellant, appeals from the acceleration of his
deferred judgment and sentencing in Case No.
CF-2014-259 and the revocation of his suspended sentence in Case No. CM-2014-673 in the
District Court of Ottawa County, by the Honorable William Culver, Special Judge. AFFIRMED.
Opinion by: Hudson, J.; Smith, P.J.: Concurs;
Lumpkin, V.P.J.: Concurs; Johnson, J.: Concurs;
Lewis, J.: Concurs.
F-2015-516 — Michael Wayne Eckfeldt,
Appellant, was tried by jury for the crimes of
Count I - Child Sexual Abuse and Counts II
and III - Sexual Abuse of a Child Under 12 in
Case No. CF-2013-3445 in the District Court of
Tulsa County. The jury returned a verdict of
guilty and recommended as punishment life
imprisonment on each of Count I and II and 35
years on Count III, to run consecutively. The
trial court sentenced accordingly. From this
judgment and sentence Michael Wayne Eckfeldt has perfected his appeal. AFFIRMED.
Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; Johnson, J., concur; Lewis, J., concur; Hudson, J., concur.
Vol. 87 — No. 13 — 5/14/2016
COURT OF CIVIL APPEALS
(Division No. 1)
113,425 — Susan Shelley, Petitioner/Appellee, vs. Kirk Shelley, Respondent/Appellant.
Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Lisa K. Hammond, Judge. Respondent/Appellant Kirk
Shelley appeals from the trial court’s order
awarding Petitioner/Appellee Susan Shelley
(Wife) attorney fees and costs for an application for contempt citation. We hold the trial
court did not abuse its discretion by awarding
Wife attorney fees in the amount of $4,275.00
and costs in the amount of $130.39. Evidence
supports the trial court’s award based on the
hours expended and the hourly rate. AFFIRMED. Opinion by Buettner, V.C.J., P.J.;
Mitchell, J., and Goree, J., concur.
113,524 — In the Matter of the Estate of Leo
F. York, Deceased: Gina D. Park and Demetria
Tricomi, Appellants, vs. Delores Landrum
York, Caroline Wells, Jennifer Barnard, and
Winton Landrum, II, Appellees, and Michael
Tullius, Appellant. Appeal from the District
Court of Oklahoma County, Oklahoma. Honorable Allen J. Welch, Jr., Judge. In this probate
proceeding, Appellant Tullius, an attorney,
appeals the trial court’s award of attorney fees
and costs. Tullius represented Appellants Park
and Tricomi, as personal representatives (PR)
of the Estate of Leo F. York. Park was the only
surviving child of Mr. York, and Tricomi is
Park’s daughter. Park served as PR from
August 2003 until her death in 2009. Tricomi
served for a ten-month period in 2010 before
resigning. Appellee Delores Landrum York
was the surviving spouse of Mr. York and the
original PR of the Estate before being removed.
Delores York died during the pendency of the
probate. Appellee Caroline Wells currently
serves as PR. Wells and Appellees Jennifer Barnard and Winton Landrum, II are the heirs of
the Estate of Dolores York. Thus, Wells, Barnard, and Landrum are heirs to the Estate. Tullius filed his Motion to Tax Costs and Attorney
Fees requesting $45,062.50 in attorney fees and
$219.59 in costs. The trial court entered a written order which incorporated by reference an
18-page letter ruling filed earlier setting forth
the court’s analysis. The court awarded $13,715
in attorney fees and $220 in costs to Tullius.
Tullius argues (1) the court erred by refusing to
award attorney fees for work performed prior
to either Park or Tricomi’s appointment as PR,
Vol. 87 — No. 13 — 5/14/2016
(2) for refusing to award attorney fees for the
drafting of a Petition filed within the probate
on behalf of Park which benefitted the Estate,
(3) refusing to award attorney fees for time
spent on two earlier appeals in the probate, (4)
that the court erred by failing to award fees for
time spent at trial, and (5) reducing his fee
award for payments the Estate made to a court
reporter and not to him. Tullius failed to demonstrate how his service prior to either of his
clients’ appointments as PR was incurred in
the administration of the Estate or benefitted
the Estate as a whole. The court’s decision not
to award attorney fees for work performed
during this time period was within its sound
discretion. The denial of attorney fees for drafting the Petition was not an abuse of discretion
as neither property nor a money judgment
were recovered. The denial of appellate attorney fees on earlier appeals was within the
court’s discretion because such work was not
necessary for the administration of the estate
nor did it benefit the Estate. Tullius provided
no independent proof that he spent eight hours
on each of two days at trial. The trial court was
again within its discretion to deny attorney
fees. However, we hold the trial court abused
its discretion when it reduced the attorney fee
award to Tullius for payments made to the
court reporter. AFFIRMED IN PART, and REVERSED IN PART, in a manner consistent with
the opinion. Opinion by Mitchell, J.; Buettner,
V.C.J., P.J., and Goree, J., concur.
113,567 — City of Tulsa, Plaintiff/Appellee,
vs. C.J. Morony, Defendant/Appellant, Wiggin
Properties, Inc., Central Park Owners Association, Inc., J. Dennis Semler, Treasurer of Tulsa
County, Oklahoma, Board of County Commissioners of Tulsa County, Oklahoma, Defendants. Appeal from the District Court of Tulsa
County, Oklahoma. Honorable Carlos Chappelle, Judge. Defendant/Appellant C.J. Morony appeals the trial court’s order denying his
claim of a homestead exemption for real property. Plaintiff/Appellee City of Tulsa filed a
motion to dismiss the appeal as moot. We find
the issue on appeal is moot. DISMISSED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and
Goree, J., concur.
113,750 — Rachel M. Taylor, Petitioner/
Appellee, vs. Kevin L. Taylor, Respondent/Appellant. Appeal from the District Court of Comanche County, Oklahoma. Honorable Gerald
Neuwirth, Judge. Appellant (Father) appeals
from several orders in the Decree of Dissolu-
991
tion of Marriage from Appellee (Mother).
Father challenges the child support calculation,
support alimony award and award of primary
custody to Mother. Father contends his income
was less than that used to calculate child support because he reduced his overtime when the
parties separated. He also claims his child support should be reduced based on the number
of overnights he was awarded with the children and that the court failed to credit his child
support obligation with Mother’s share of the
children’s health insurance premium. Father
never argued the evidence he presented was
not an accurate representation of his income,
and he failed to introduce evidence of the
health insurance premium to allow its inclusion in the child support computation. Father
has also not shown he was entitled to a reduction in child support based on the number of
overnight visits. The record does not support
Father’s contention that the factual basis used
by the court to support its award of support
alimony was moot by the time of trial. Father
has not shown any error in the trial court’s support alimony award and this Court will not
presume error. Although Father presented a
different version of the events involving domestic abuse and alcohol, there was evidence
that Mother suffered domestic abuse by Father
and that Father abused alcohol. The trial court
is entitled to choose which testimony to believe
as it has the advantage over this Court in
observing the behavior and demeanor of the
witnesses. We see no error in the court’s decision to award primary custody of the children
to Mother. AFFIRMED. Opinion by Mitchell, J.;
Buettner, V.C.J., P.J., and Goree, J., concur.
113,872 — In Re the Marriage of Brooke A.
Martin and Marty D. Martin: Brooke A. Martin,
Petitioner/Appellee, vs. Marty D. Martin, Respondent/Appellant. Appeal from the District
Court of Oklahoma County, Oklahoma. Honorable Barry L. Hafar, Trial Judge. Father contends the trial court abused its discretion in not
awarding the parties joint custody of Child.
The best interest of the child is the primary
concern in deciding a custody contest. Bilyeu v.
Bilyeu, 2015 OK CIV APP 58, ¶8, 352 P.3d 56.
Joint custody requires parents who (1) have an
ability to communicate with each other; (2) are
mature enough to set aside their own differences; and (3) can work together and engage in
joint discussions with each other and make
joint decisions regarding the best interest of
their child. Foshee v. Foshee, 2010 OK 85, ¶16,
247 P.3d 1162. Evidence at trial demonstrated
992
that the parties have not communicated with
each other and cannot set aside their own differences. There is no evidence they can work
together and engage in joint discussion with
each other and make joint decisions regarding
Child’s best interest. The trial court’s decision
awarding Mother sole custody of Child was
not clearly contrary to the weight of the evidence and was not an abuse of discretion. Manhart v. Manhart, 1986 OK 12 ¶14. Father urges
the trial court abused its discretion in awarding
him only standard visitation, eliminating the
Wednesday nights with Child he had during
the pendency of the case. Based on the testimony and the demeanor and behavior of the
witnesses, the trial court’s decision to award
Father standard visitation without Wednesday
night visitation was not an abuse of discretion.
AFFIRMED. Opinion by Goree, J.; Buettner,
V.C.J., P.J., and Mitchell, J., concur.
114,093 — Burt Witaschek, Petitioner, vs.
American Airlines, Inc., New Hampshire Insurance Company, and The Workers’ Compensation Court of Existing Claims, Respondents.
Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation
Court of Existing Claims. Petitioner Burt Witaschek (Claimant) seeks review of an order of a
three-judge panel of the Workers’ Compensation Court of Existing Claims finding employment activities were not the major cause of his
injuries and denying compensability. We hold
the panel’s order is not against the clear weight
of the evidence. SUSTAINED. Opinion by
Buettner, V.C.J., P.J.; Mitchell, J., and Joplin, J.
(sitting by designation), concur.
114,226 — (Comp. w/114,234) Joanne Lowe,
individually and as surviving spouse of Ty
Dwayne Lowe, deceased, and on behalf of
minor children G.L. and A.L., Plaintiff/Appellant, vs. Akerman Drilling, Inc., and Paul Gillham Oil Co., Defendants/Appellees, and
Twister Drilling Company, Inc., and the Estate
of John H. Gilbert, deceased, Defendants. Appeal from the District Court of Seminole County, Oklahoma. Honorable George W. Butner,
Judge. Plaintiff/Appellant Joanne Lowe, individually and as surviving spouse of Ty Dwayne
Lowe and on behalf of minor children G.L. and
A.L, appeals from summary judgment granted
in favor of Defendants/Appellees Akerman
Drilling, Inc. and Paul Gillham Oil Co. (PGOC).
Lowe filed this wrongful death action against
Defendants Twister Drilling Co. and the Estate
of John H. Gilbert, alleging their negligence
Vol. 87 — No. 13 — 5/14/2016
resulted in the death of Lowe’s husband, Ty
Dwayne Lowe, and alleging that Akerman was
liable as the alter ego of Twister and that PGOC
was contractually liable for Twister’s torts. The
trial court granted summary judgment to Akerman and PGOC and certified the judgment for
immediate review. The record on appeal shows
no dispute of material fact on Lowe’s claim
that Akerman was the alter ego of Twister. The
record also shows that it is undisputed that
Twister was an independent contractor and
under the contract, PGOC was not liable for
injuries occurring during Twister’s employees’
trip home from work on PGOC’s well. Akerman and PGOC were entitled to judgment as a
matter of law and we affirm. AFFIRMED.
Opinion by Buettner, V.C.J., P.J.; Mitchell, J.,
and Goree, J., concur.
114,234 — (Comp. w/114,226) A. Todd Holliman, Plaintiff/appellant, vs. Akerman Drilling,
Inc., and Paul Gillham Oil Co., Defendants/
Appellees, and Twister Drilling Company, Inc.,
the Estate of John H. Gilbert, deceased, and the
Estate of Ty Dwayne Lowe, Deceased, Defendants. Appeal from the District Court of Seminole County, Oklahoma. Honorable George W.
Butner, Judge. Plaintiff/Appellant E. Todd Holliman appeals from summary judgment granted in favor of Defendants/Appellees Akerman
Drilling, Inc. and Paul Gillham Oil Co. (PGOC).
Holliman was the passenger in a vehicle driven
by his co-worker John H. Gilbert which collided head-on with a vehicle driven by Ty Dwayne
Lowe. Gilbert and Lowe died in the accident
and Holliman was injured. Holliman sued his
employer, Twister Drilling Co., the Estate of
John H. Gilbert, and the Estate of Ty Dwayne
Lowe, alleging their negligence resulted in
Holliman’s injuries; Akerman, alleging it was
liable as the alter ego of Twister; and PGOC,
alleging it was contractually liable for Twister’s
negligence. The trial court granted summary
judgment to Akerman and PGOC and certified
the judgment for immediate review. The record
on appeal shows no dispute of material fact on
Holliman’s claim that Akerman was the alter
ego of Twister and Akerman was entitled to
judgment as a matter of law. The record also
shows that it is undisputed that Twister was an
independent contractor and PGOC was not
liable for injuries occurring during Twister
employees’ trip home from work on PGOC’s
well. We affirm. AFFIRMED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur.
Vol. 87 — No. 13 — 5/14/2016
114,275 — Ralph W. Emerson, III and Alice F.
Emerson, Husband and Wife, Petitioners/
Appellants, vs. McIntosh County Assessor and
Board of County Commissioners, Respondents,
and Trina Williams, County Assessor of McIntosh County, Oklahoma; Jack Pugh; Douglas
Howell and Trina Williams, Acting as the McIntosh County Board of Equalization, Appellees.
Appeal from the District Court of McIntosh
County, Oklahoma. Honorable Jim Pratt, Trial
Judge. Plaintiff/Appellants, Ralph W. Emerson,
III, and Alice F. Emerson (Homeowners), seek
review of the trial court’s order affirming the tax
assessment on their lakefront property. At issue
is whether the assessment should have been
reduced pursuant to 68 O.S. 2011 §2817(F) to
the extent the property was subject to a flowage easement. We hold that subsection F does
not apply to the valuation of Homeowners’
property because the property has been developed and must be valued based upon its current use. AFFIRMED. Opinion by Goree, J.;
Buettner, V.C.J., P.J., and Mitchell, J., concur.
114,308 — Tammy Jackson, Plaintiff/Appellant, vs. Kum & Go, L.C., Defendant/Appellee.
Appeal from the District Court of Tulsa County, Oklahoma. Honorable Mary F. Fitzgerald,
Judge. Plaintiff/Appellant Tammy Jackson appeals from summary judgment granted to
Defendant/Appellee Kum & Go, L.C. (Store) in
Jackson’s suit for damages resulting from a slip
and fall at Store’s premises. The summary
judgment record shows no dispute of fact that
the hazard was open and obvious and therefore
Store had no duty to warn Jackson of the hazard
and was entitled to judgment as a matter of law.
We affirm. AFFIRMED. Opinion by Buettner,
V.C.J., P.J.; Mitchell, J., and Goree, J., concur.
(Division No. 2)
114,152 — Thermal Seal Duct Systems, Inc.,
Petitioner, v. Brady Fagg, National Trust Ins.
and the Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to review
an Order of a three-judge panel of the Workers’
Compensation Court of Existing Claims, Hon.
Michael W. McGivern, Trial Judge. Petitioner
(Thermal) seeks review of the panel’s Order
affirming the order of the trial court finding
that American Metal Fabrication, Inc. (AMF)
was the employer of Respondent Brady Fagg
(Claimant) on the date of Claimant’s injury and
dismissing Thermal and Respondent National
Trust Ins. (National) as parties in this matter.
According to National, which filed an Answer
993
Brief on appeal, Thermal challenges the panel’s
Order dismissing Thermal and National from
this case because AMF was uninsured at the
time of Claimant’s injury and Thermal and AMF
have common ownership. Thus, Thermal, who
was insured by National at the time of the
alleged injury, asserts it should be found to be
Claimant’s employer and that, regardless, National should be ordered to provide benefits
coverage to Claimant. However, National contests Thermal’s standing to appeal this matter.
Indeed, a party invoking this Court’s jurisdiction has the burden of establishing its standing,
when contested, to pursue the action in court.
In order to meet this burden on appeal a party
must show, inter alia, that it has been aggrieved
by the lower court’s decision in order to appeal
from it. Thermal, who was found below to not
be Claimant’s employer at the time of the
work-related injury and, therefore, not responsible for payment of compensation benefits,
has plainly failed to meet this burden. It is only
National that has supplied this Court with any
indication as to how Thermal may have been
aggrieved. Because it is Thermal’s burden to
establish its standing to appeal the panel’s
Order, and because Thermal has failed to meet
this burden, we dismiss this appeal for lack of
standing. APPEAL DISMISSED. Opinion from
Court of Civil Appeals, Division II, by Barnes,
J.; Thornbrugh, P.J., and Rapp, J., concur.
tion VI is not in compliance with Oklahoma
Supreme Court Rule 1.14(A) and (B); therefore,
Mother’s request for appeal-related attorney
fees and costs is denied. Proposition VI, to the
extent Mother asks for trial-related attorney
fees — fees the trial court denied — provides
no argument about how or why the trial court’s
order denying either party attorney fees was
an abuse of discretion; consequently, in the
absence of a sufficient record to show the trial
court committed error, we will not consider her
request for trial-related attorney fees. As to
Mother’s remaining proposition concerning
the award of sole custody of the parties’ minor
child to Father, we conclude the trial court’s
decision was not against the clear weight of the
evidence. Consequently, based on our review
of the record and applicable law, we conclude
the trial court did not abuse its discretion in
awarding sole custody of the minor child to
Father and affirm the Decree. We grant Father’s
motion for appeal-related attorney fees for the
reasonable amount of attorney fees he incurred
with respect to Mother’s Propositions I, II, III,
and IV, and remand the case to the trial court to
determine that amount. Accordingly, we affirm
the Decree and remand the case for further proceedings. AFFIRMED AND REMANDED FOR
FURTHER PROCEEDINGS. Opinion from Court
of Civil Appeals, Division II, by Barnes, J.;
Thornbrugh, P.J., and Rapp, J., concur.
112,9 95 — In re the Marriage of: Darrell W.
Dyer, Petitioner/Appellee, v. Robyn L. Dyer,
Respondent/Appellant. Appeal from the District Court of Creek County, Hon. Mark A.
Ihrig, Trial Judge. In this divorce action,
Respondent/Appellant (Mother) appeals from
a Decree of Dissolution of Marriage (Decree) in
which she and Petitioner/Appellee (Father)
were granted a divorce on the ground of incompatibility. Mother asserts on appeal the
trial court abused its discretion regarding child
custody, division of marital assets, identification and award of personal property, and restoration of her maiden name. Mother also argues
the trial court was unfair and inequitable to her
because it found her to be in contempt of one
of its orders. On appeal, Father filed a motion
to dismiss Mother’s Brief-in-chief. By Order of
the Oklahoma Supreme Court, the motion was
deferred to the decisional stage. While we deny
the motion, we agree with Father that Mother’s
appellate brief is deficient, a deficiency that
severely restricts the review we can make or
will make in this appeal. Propositions I, II, III,
and IV are devoid of legal authority. Proposi-
994
113,723 — (Consolidated with Case No.
113,725 and Companion with Case No. 112,411)
– James W. Trenz, individual, and Terrane
Associates, Inc., Plaintiffs, v. Glen Rupe, individual and Rupe Oil Company, Inc., Defendants/Appellants, and Peter Paul Petroleum
Company, Defendant, and Bradley D. Brickell
& Associates, and Ted W. Haxel, Attorney Lien
Claimants/Appellees, and Mahaffey & Gore,
P.C., Attorney Lien Claimant. Appeal from an
Order of the District Court of McClain County,
Hon. Tracy Schumacher, Trial Judge. The plaintiffs, James Trenz and Terrane Associates, Inc.
(together “Trenz”) appeal a judgment awarding attorney fees and costs to the attorney fee
and lien claimants Brickell and Associates P.C.
(Brickell) and Ted W. Haxel (Haxel), for foreclosing their attorneys’ liens. The defendants,
Glen Rupe and Rupe Oil Company (collectively “Rupe”) also separately appeal the same
Order, as amended, insofar as it taxed costs
against Rupe. These two appeals have been
consolidated by Order of the Oklahoma Su-
Vol. 87 — No. 13 — 5/14/2016
preme Court. Brickell and Haxel had attorneys’
liens for their services for representation of
Trenz. A hearing was held to determine the fee.
The hearing resulted in a lodestar fee and an
enhancement of the lodestar fee for both attorneys. This decision was appealed and this
Court reversed the enhanced portions of both
fees and slightly modified Haxel’s lodestar fee.
The Supreme Court denied certiorari on Brickell’s and Haxel’s petition for certiorari. Brickell
and Haxel were represented by retained counsel in that proceeding. Thereafter, Brickell and
Haxel, requested fees for prevailing on their
attorneys’ liens matter. Again they were represented by retained counsel. The trial court
awarded fees to each and to retained counsel
for the legal work in foreclosing the attorneys’
liens. Trenz appeals the fees and costs award.
Rupe appeals the costs award and is not responsible for the fee awards. These two appeals
have been consolidated. With certain safeguards, attorneys who represent themselves
may recover attorney fees, when recovery of
attorney fees is authorized. However, here
Brickell and Haxel are the clients. There is no
authority given under the American Rule, as
strictly applied in Oklahoma, whereby an
attorney who is represented by independent
counsel may recover attorney fees in his or her
own right. Therefore, the judgment for the
attorney fees for Brickell and Haxel is vacated
and reversed. The judgment awarding retained
counsel’s attorney fee is affirmed. The trial
court’s denial of attorney fees for additional
retained counsel is affirmed. In their appellate
Brief, Brickell and Haxel withdrew the claim
for expert witness fees. The trial court’s award
of expert witness fees as costs is vacated. The
trial court awarded several itemized sums as
costs. These costs, with one exception, are not
shown to qualify as costs that may be recovered. With the exception, costs award is modified to award costs of $565.42. AFFIRMED IN
PART, REVERSED IN PART AND MODIFIED
IN PART. Opinion from Court of Civil Appeals,
Division II by Rapp, J.; Thornbrugh, P.J., and
Barnes, J., concur.
112,529 — Bobby Riley and Laura ChrismanRiley, Individually, and Husband and Wife,
Plaintiffs/Appellees, v. Gary Chrisman, Jr., Individually, Defendant/Appellant, and Martin
Ramos, Individually, Defendant. Appeal from
the District Court of Oklahoma County, Hon.
Barbara Swinton, Trial Judge. In this forecloVol. 87 — No. 13 — 5/14/2016
sure action, Plaintiffs/Appellees (the Rileys)
sought to foreclose a Contract for Deed for
certain real property against Defendant/Appellant (Chrisman), and Defendant Martin
Ramos, the person to whom Chrisman executed
a lease with option to purchase the real property.
After a non-jury trial, the trial court issued its
Order finding Chrisman was in default under
the Contract for Deed and further finding the
forfeiture clause in the Contract for Deed is valid
and the Rileys are entitled to retain all equity
resulting from Chrisman’s purchase and payments made under the Contract for Deed. We
conclude the trial court’s determination that
Chrisman defaulted under the terms of the Contract for Deed is not against the clear weight of
the evidence. The case is remanded to the trial
court, however, to determine the amount of the
principal and interest Chrisman owes to the
Rileys given his default and costs and fees
related to the default as set out in the Contract
for Deed. We further conclude the trial court’s
determination that the forfeiture clause is valid
and enforceable is contrary to law and Chrisman is entitled to a judgment for whatever
equity, if any, he may have in the subject property after the court determines what his equity
interest in the sale proceeds is and after the
trial court determines the costs and fees attributable to Chrisman for his default pursuant to
the Contract for Deed. Accordingly, the Order is
affirmed in part, reversed in part, and re-manded for further proceedings. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED FOR
FURTHER PROCEEDINGS. Opinion from Court
113,053 — In the Matter of the Estate of Virgil
J. Bricker s/p/a Virgil Bricker, Deceased. Paula
Jo Lane, Linda Susan Kader and Virgil Dean
Bricker, Appellants, v. Rosa Goforth, Appellee.
Appeal from the District Court of Seminole
County, Hon. Timothy Olsen, Trial Judge. Appellants appeal from an Order of the trial court
determining, among other matters, that Appellee is the common law wife of Appellants’
deceased father. We conclude the trial court’s
determination that Appellee is the deceased’s
common law wife is not clearly against the
weight of the evidence. Accordingly, we affirm
the Order. AFFIRMED. Opinion from Court of
Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur.
995
113,470 — State of Oklahoma ex rel. W.A.
“Drew” Edmondson, Attorney General of Oklahoma, Plaintiff/Appellant, v. Grand River
Enterprises Six Nations, Ltd., Defendant/Appellee, and Grand River Enterprises Six
Nations, Ltd., a Canadian corporation and Tobaccoville USA, Inc., a South Carolina corporation, Plaintiff, vs. State of Oklahoma ex rel.
Oklahoma Tax Commission and State of Oklahoma ex rel. Office of the Attorney General of
Oklahoma, Defendants. Appeal from the District Court of Oklahoma County, Hon. Patricia
G. Parrish, Trial Judge. This case was the subject of two prior appeals. A detailed recitation
of the facts and background of this case can be
found in State ex rel. Edmondson v. Grand River
Enterprises Six Nations, Ltd., 2013 OK CIV APP
58, 308 P.3d 1057. The present appeal arises
from post-judgment proceedings and Plaintiff/
Appellant’s (State) efforts to collect on a multimillion dollar judgment affirmed by this Court
in the second appeal. In particular, State appeals, and Defendant/Appellee (GRE) counter-appeals, from the trial court’s Order filed in
November 2014 granting in part and denying
in part GRE’s Motion to Reconsider the trial
court’s prior order directing GRE to attend an
asset hearing and enjoining GRE from transferring property. In its November 2014 Order, the
trial court granted one proposition set forth in
GRE’s Motion to Reconsider by finding it “lacks
the territorial jurisdiction to compel the attendance of GRE from outside the borders of Oklahoma.” However, the trial court found that
“State is permitted to issue interrogatories or
request for production of documents concerning [GRE’s] property, income, or liabilities,”
and the trial court rejected GRE’s arguments
that the underlying judgment has become dormant and unenforceable and that GRE should
be granted a discretionary stay pending appeal.
Based on our review, we affirm the trial court’s
determination that the underlying judgment
did not become dormant and unenforceable.
We also affirm the trial court’s denial of GRE’s
request for a discretionary stay. However, we
reverse the trial court’s finding that it lacked
jurisdiction to order GRE to appear at an asset
hearing related to the enforcement of the underlying judgment, and we remand this case to the
trial court. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED. Opinion from Court
112,811 — John D. Sikes, Tamara J. Sikes,
Husband and Wife, The Estate of Johnny F.
996
Sikes, Connie Sikes, William Brunk, Kathryn
Brunk, Husband and Wife, Phil Converse, Ava
Converse, Paula Rush, The Janice Earline Converse Family Revocable Trust, Shannon Shirley
and Reginald Robbins, Husband and Wife,
Plaintiffs/Appellees, v. Mehlburger Brawley,
Inc., as Successor in Interest to NRS, Inc., d/b/a
NRS Consulting Engineers, Defendant/Appellant, and B3, INC., Defendant. Appeal from the
District Court of Johnston County, Hon. Charles
Migliorino, Trial Judge. Defendant/Appellant
(MBI) appeals from the trial court’s Order refusing to vacate its order imposing a constructive
trust for the benefit of Plaintiffs/Appellants
(Plaintiffs). MBI also appeals from the trial
court’s reappointment of Receiver. Based on
the appellate record and applicable law, we
conclude the trial did not abuse its discretion in
refusing to vacate its order imposing a constructive trust on MBI’s assets. We further conclude MBI’s petition in error is premature as to
its assertion that the trial court abused its discretion in reappointing the Receiver because
there is no order in the record on the date the
petition in error was filed reappointing the
Receiver and no amended petition in error has
been filed by MBI that includes such an order.
ORDER AFFIRMED DENYING MOTION TO
VACATE; PETITION IN ERROR DISMISSED
IN PART AS PREMATURE REGARDING
REAPPOINTMENT OF RECEIVER PURSUANT TO OKLAHOMA SUPREME COURT
RULE 1.26(c). Opinion from Court of Civil
Appeals, Division II, by Barnes, J.; Thornbrugh,
P.J., and Rapp, J., concur.
113,667 (Companion with Case No. 113,668)
— State of Oklahoma ex rel. Department of
Human Services, Petitioner/Appellant, v. Steven Dewayne Sapp, Respondent/Appellee.
County, Hon. Geary L. Walke, Trial Judge. Petitioner/Appellant (State) appeals from a Judgment in which the trial court dismissed its
Application for Contempt Citation and Citation for Indirect Contempt of Court against
Respondent/Appellee (Sapp) for failure to pay
child support. Sapp has entered no appearance
on appeal and has filed no appellate brief. State
sought enforcement of the child support order
by filing an application for contempt because,
although current support was no longer due,
Sapp owed a considerable child support arrearage and failed to make court ordered payments
for past due child support for a specified period.
Vol. 87 — No. 13 — 5/14/2016
The trial court, sua sponte, dismissed State’s application because “the children in this case have
reached the age of majority and current support is no longer due.” The trial court found
“once current support is no longer due, the
collection of the back child support arrears
become a debt like any other civil debt and the
collection of the debt should not be brought
under indirect civil contempt but collected by
other civil means.” Based on the controlling
law found in 21 O.S. 2011 § 566 and the reasoning in Roca v. Roca, 2014 OK 55, ¶ 10, § 337 P.3d
97, we conclude the trial court erred as a matter
of law in concluding that enforcement of past
child support payments once current child
support is no longer due must be collected by
civil means other than indirect civil contempt.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of
Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur.
113,668 (Companion with Case No. 113,667)
— State of Oklahoma ex rel. Department of
Human Services, Petitioner/Appellant, v. Steven Dewayne Sapp, Respondent/Appellee.
County, Hon. Geary L. Walke, Trial Judge. This
appeal and Case No. 113,667 were made companion appeals by Order of the Oklahoma
Supreme Court. As set forth in more detail in
the companion appeal, Petitioner/Appellant
(State) appeals from the Judgment in which the
trial court dismissed its application for contempt citation for failure to pay child support
against Respondent/Appellee (Sapp). In the
companion appeal, we concluded, based on
the controlling law found in 21 O.S. 2011 § 566
and the reasoning in Roca v. Roca, 2014 OK 55,
¶ 10, 337 P.3d 97, the trial court erred as a matter of law in concluding enforcement of past
child support payments after a child reaches
majority must be collected by civil means other
than indirect civil contempt. Consequently, in
light of the Opinion issued in the companion
case, we summarily reverse the Judgment pursuant to Oklahoma Supreme Court Rule 1.201,
12 O.S. 2011, ch. 15, app. 1, and remand the case
for further proceedings. SUMMARILY REVERSED UNDER RULE 1.201 AND REMANDED FOR FURTHER PROCEEDINGS. Opinion
from Court of Civil Appeals, Division II, by
Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur.
113,433 — In re the Marriage of: Shelly Jo
Coker, Petitioner/Appellee, vs. James Robert
Coker, Respondent/Appellant. Proceeding to
Vol. 87 — No. 13 — 5/14/2016
review a judgment of the District Court of Stephens County, Hon. G. Brent Russell, Trial
Judge. James Coker (Husband) appeals the
decision of the district court that Shelly Coker
(Wife) has an interest in the previously separate
real property of Husband after he deeded the
property to himself and Wife as joint tenants
with right of survivorship. Husband testified
that he did not intend a gift. At trial Husband
testified that he put the property into joint tenancy with right of survivorship “to avoid probate” and did not elaborate. We find few other
significant facts that may influence the issue in
one direction or another. This question is a
question of fact subject to the discretion of the
district court, which must untangle these questions of intent and motivation by an assessment of the facts and testimony. We review this
decision only to determine if no rational basis
exists on which the trial court could find Husband failed to overcome the presumption of an
inter-spousal gift stated by Larman v. Larman,
1999 OK 83, 991 P.2d 536. We find the trial
court’s decision was within its discretion in
this matter. AFFIRMED. Opinion from Court of
Civil Appeals, Division II by Thornbrugh, P.J.;
Rapp, J., and Barnes, J., concur.
113,282 — Eugene M. Jardot, Vivian McFarland Atwood, Larry T. Jardot, Lee Roy “Tommy” Jardot and Tamela Jardot Cummings,
Plaintiffs/Appellees, vs. Esther L. Jardot, aka
Esther L. Niimi, individually, and Esther L.
Jardot, Successor Trustee of The Eugene K. and
Vada M. Jardot Revocable Living Trust, Dated
May 13, 1999, a revocable trust, Defendants/
Appellants. Proceeding to review a judgment
of the District Court of Payne County, Hon.
Phillip Corley, Trial Judge. Esther Jardot,
appearing pro se, appeals the decisions of the
district court in a trust administration and
accounting case. The district court found that
Jardot, acting as Trustee, cashed in CDs belonging to the Trust in the amount of $83,000.00, but
did not use this money for Trust purposes, and
made other improper distributions of trust
money and property. The court found the beneficiaries entitled to a judgment against Jardot
in the amount of $124,123. Pursuant to the deferential standard of review assigned, we find
no merit in the allegations of factual error
raised in Ms. Jardot’s brief. As such, we affirm
the decisions of the district court. AFFIRMED.
Opinion from Court of Civil Appeals, Division
II by Thornbrugh, P.J.; Rapp, J., and Barnes, J.,
concur.
997
113,833 — Thomas Saicheck, an individual,
and Marilyn Tahl, an individual, Plaintiffs/
Appellants, vs. Taber Leblanc, an individual
and d/b/a Homes by Taber and Taber Built
Homes, LLC, Defendant/Appellee. Proceeding to review a judgment of the District Court
of Canadian County, Hon. Gary Miller, Trial
Judge. Thomas Saicheck, and Marilyn Tahl
(Homeowners) appeal the decision of the district court vacating a default judgment against
Taber Leblanc, d/b/a Homes by Taber and
Taber Built Homes (Builders). This matter was
originally sent to contractual arbitration by
order of the court in February 2012, but somehow returned to the district court without resolution in 2013. Exactly how is uncertain from
the record. In August 2014, the court granted
default against Builders for failure to appear at
a pre-trial conference. A damage hearing was
evidently set for September 22, 2014. An order
from that date indicates that Builders had
again failed to appear, and awards a total of
$204,396 in damages. In December, 2014, Builders filed a motion to vacate, alleging that their
counsel had been suspended from the practice
of law and had been arrested and charged in a
criminal matter. Builders denied any knowledge of, or notice from, their counsel regarding
his suspension, or any knowledge or actual
notice of the hearings set for August and September 2014. Homeowners argue that any
default was due to negligence of counsel; that
this negligence is attributed by law to Builders;
and this was not an “unavoidable casualty.”
We find that, in these circumstances, the negligence of counsel in allowing default should not
be attributed to Builders. We note, and share,
the district court’s concern that this matter has
been in litigation since late 2009, and that Homeowners have waited a long time for relief. We
affirm the district court’s vacation of the default
judgment, and remand this mater for a timely
resolution. AFFIRMED. Opinion from Court of
Civil Appeals, Division II by Thornbrugh, P.J.;
Rapp, J., and Barnes, J., concur.
(Division No. 3)
113,576 — Richard Spaulding, Petitioner/
Appellant, vs. Debra Morgan, Respondent/
Appellee. Appeal from the District Court of
Tulsa County, Oklahoma. Honorable Stephen
R. Clark, Judge. Appellant (Father) appeals
from the trial court’s order dismissing his petition to vacate a consent order modifying decree
of paternity entered March 27, 2013 (2013 Con998
sent Order). The 2013 Consent Order granted
Appellee (Mother) legal custody of the parties’
minor child and awarded Father visitation.
Father sought to vacate the 2013 Consent
Order on the basis that Mother and her counsel
made a “fraudulent suggestion” and obtained
an earlier court order (2012 Order) placing the
child’s custody with non-party, maternal grandparents. Later, the 2012 Order was vacated
because the trial court found it lacked jurisdiction to grant the non-party maternal grandparents custody of the child. The court dismissed
Father’s petition to vacate the 2013 Consent
Order for failing to state a cognizable legal claim
because it could not find the “suggestion,” that
precipitated the 2012 Order, was fraudulent or
that there was a sufficient nexus between the
“suggestion,” the court’s earlier jurisdictional
error, and the 2013 Consent Order. Father also
appeals from the court’s order granting attorney fees and costs to Mother. Throughout this
proceeding, Father has been represented by
counsel. Father’s signature on both orders
evinces he exercised his own free will in
approving and signing same. There are no facts
showing that Mother exerted fraud, duress, or
undue influence upon Father in obtaining his
agreement to the 2013 Consent Order. The 2013
Consent Order also appears to be fair on its face
as it provides Father with liberal visitation.
Because we affirm the trial court’s dismissal
order, we find the court acted within its statutory authority in awarding Mother her attorney
fees and costs under 43 O.S. Supp. 2015 §109.2(B).
AFFIRMED. Opinion by Bell, P.J.; Joplin, J., and
Hetherington, J., concur.
113,613 — In the Matter of the Estate of Ruth
Hewitt, Deceased. Lori Lee Hewitt Chelenza
and Treena Marie Hewitt Hassell, Petitioners/
Appellants, vs. Mary J. Bradford now Brown,
Rene Coulson, Amy Marie Rea, Glenda Hewitt
a/k/a Gwen Hewitt, Imogene Hewitt and Jana
Hewitt Smith, Respondents/Appellees. Appeal
from the District Court of Dewey County, Oklahoma. Honorable Ray Dean Linder, Judge.
Petitioners seek review of the trial court’s order
denying their Petition to Vacate the final decree
of distribution in the Matter of the Estate of
Ruth Hewitt, Deceased, some thirteen years
after its entry. In this appeal, as they did below,
Petitioners assert the decree of distribution
entered in the probate of Decedent’s estate is
void on its face for its failure to direct the distribution of a share of Decedent’s estate to their
ancestor, a specifically named devisee in the
Last Will and Testament of Decedent, and here
Vol. 87 — No. 13 — 5/14/2016
complain the trial court erred as a matter of
law and fact in refusing to vacate that void
final decree of distribution. The courts of this
state are courts of general jurisdiction in probate matters, and an order entered in the exercise of the general probate jurisdiction, even if
based on some error of law, is nevertheless
valid, not void, and subject to correction only
by direct appeal. The final decree in the Decedent’s estate was entered in the general jurisdiction of the probate court, within its power to
determine matters concerning the division and
distribution of a decedent’s estate. At best, the
omission of Forrest from the division and distribution of the Decedent’s residuary estate
constituted an error of law, not an invalid exercise of the probate court’s general probate
jurisdiction. As an error of law, correction
could be had only by timely direct attack in an
appeal. The probate court’s final decree was
not void. AFFIRMED. Opinion by Joplin, J.;
Bell, P.J., and Hetherington, J., concur.
(Division No. 4)
Wednesday, March 16, 2016
114,321 — Steven Wade Jameson, Plaintiff/
Appellee, vs. State of Oklahoma ex rel., Department of Public Safety, Defendant/Appellant.
Appeal from an order of the District Court of
Payne County, Hon. Steven R. Kistler, Trial
Judge, vacating Department of Public Safety’s
(DPS) cancellation of Steven Wade Jameson’s
(Jameson) driver’s license. We affirm the trial
court’s findings: 1) that the municipal court
was without jurisdiction to cancel Jameson’s
driver’s license pursuant to 47 O.S.2011, §
6-107.1; 2) that Jameson’s petition for relief was
not a collateral attack on a conviction or final
determination in violation of 47 O.S.2011, §
6-107(c)(2); 3) that DPS failed to give Jameson
proper notice as required by 47 O.S.2011, §§
6-107.1 and 2-116; 4) that Jameson’s petition for
relief was not time-barred pursuant to 47 O.S.
2011, § 6-211. However, we remand for a determination whether Jameson’s action is barred
by the statute of limitations. AFFIRMED IN
PART AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. Opinion from the Court of
Civil Appeals, Division IV, by Goodman, C.J.;
Wiseman, P.J., and Fischer, J., concur.
Tuesday, March 22, 2016
113,171 — Darren B. Janes, Petitioner/Appellant, v. Cody D. Janes, Respondent/Appellee.
Appeal from an Order of the District Court of
Vol. 87 — No. 13 — 5/14/2016
Garfield County, Hon. Paul K. Woodward, Trial Judge. Darren B. Janes (Father) appeals a
July 31, 2014, order denying his motion for new
trial. Father contends the trial court erred in
granting, by order entered on April 25, 2014,
Cody D. Janes’ (Mother) motion to modify custody as well as awarding Mother an attorney’s
fee. We find no error. However, we hold the
trial court’s September 9, 2015, order granting
Mother an attorney’s fee pursuant to 43 O.S.
2011, § 112(D)(2) is without a basis in law, and
is reversed. Accordingly, based upon our review of the record and applicable law, we affirm in part and reverse in part. AFFIRMED IN
PART, REVERSED IN PART. Opinion from
Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur.
113,635 — Terry Murphy, d/b/a Environmental Products and Roger Lackey, Plaintiffs/
Appellants, v. The Kickapoo Tribe of Oklahoma and The Kickapoo Casino, a Separate Oklahoma Entity, Defendants/Appellees. Appeal
from an Order of the District Court of Lincoln
County, Hon. Cynthia Ferrell Ashwood, Trial
Judge. Plaintiffs appeal the trial court’s order
granting summary judgment to Defendants
Kickapoo Tribe of Oklahoma (Tribe) and the
Kickapoo Casino, a Separate Oklahoma Entity
(Casino). Plaintiff Murphy entered into a contract with Tribe, while Plaintiff Lackey was
employed by Casino. Murphy alleged Tribe
breached the contract, and Lackey alleged Casino wrongfully terminated him following the
conclusion of a workers’ compensation claim.
Plaintiffs’ claims against Casino were first filed
and dismissed in the Tribal Court. That order
was a final, appealable order. The Lincoln
County District Court found, and the record
supports the finding, that an appellate procedure, open to non-tribal members, was in existence at the time the final order was issued. We
conclude the trial court’s order correctly held
that the Tribal Court order dismissing Casino
and Tribe was an appealable order. For whatever reason, it was never appealed, and became
final. Tribal court orders are entitled to full
faith and credit in Oklahoma district courts.
The issues raised and resolved in those orders
between these same parties became res judicata in the Lincoln County action. Casino/Tribe
is entitled to judgment as a matter of law. The
trial court’s order is affirmed. AFFIRMED.
Opinion from Court of Civil Appeals, Division
IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur.
999
113,422 — St. John Health System, Inc., Plaintiff/Appellee, v. Kenneth L. Smith, Defendant,
and Rita Marie Smith, Defendant/Appellant.
Appeal from an Order of the District Court of
Tulsa County, Hon. Carlos Chappelle, Trial
Judge. Defendant Rita Smith appeals the trial
court’s order denying her an attorney’s fee
against St. John Health System, Inc. (Hospital),
contending she was the prevailing party on
Hospital’s action to recover for labor or services rendered and is therefore entitled to an
attorney’s fee pursuant to 12 O.S.2011, § 936, or
in the alternative, she should be awarded an
attorney’s fee based on the trial court’s inherent power to award a fee pursuant to City Nat.
Bank & Trust Co. of Oklahoma City v. Owens, 1977
OK 86, 565 P.2d 4, and because of public policy
arguments. We hold Defendant is the prevailing party in Hospital’s action to recover for
labor or services. This is so because the applicable statute, 12 O.S.2001 and Supp.2004, § 684,
allows Hospital to escape the fee-shifting provisions of § 936 only when it dismisses its claim
before Defendant sought affirmative relief.
Because Defendant successfully overturned two
judgments against her before Hospital dismissed
its claim, Defendant successfully obtained affirmative relief and is therefore by definition the
prevailing party under 12 O.S.2001 and Supp.
2004, § 684 and § 936. As prevailing party, Defendant has shown she is entitled to an attorney’s
fee pursuant to the mandatory award provisions of § 936. The trial court’s order holding
otherwise is erroneous and is reversed. The
matter is remanded with directions to enter
judgment in favor of Defendant on her § 936
fee claim. The judgment shall be consistent
with the evidence produced at the December 9,
2013, Burk hearing. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from
Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur.
113,787 — In the Matter of T.J., Deprived
Child, Chester Williams, Appellant, v. State of
Oklahoma, Appellee. Appeal from an order of
the District Court of Oklahoma County, Hon.
Gregory J. Ryan, Trial Judge. Chester Williams
(Father) appeals a trial court order upon jury
verdict terminating his parental rights to his
minor son, TJ. We are asked to review whether
the State of Oklahoma proved by clear and
convincing evidence that Father failed to correct the conditions leading to the adjudication
of TJ as deprived and whether termination of
Father’s parental rights was in TJ’s best interests. We conclude State has shown by clear and
1000
convincing evidence that Father’s parental
rights should be terminated pursuant 10A O.S.
Supp. 2013 § 1-4-904(B)(5). We also see no
abuse of discretion by the trial court in admitting or excluding evidence. Accordingly, we
affirm the trial court’s order terminating Father’s parental rights. AFFIRMED. Opinion
from Court of Civil Appeals, Division IV, by
Wiseman, P.J.; Goodman, C.J., and Fischer, J.,
concur.
114,055 — In the Matter of M.E.C., A.C., S.C.,
E.C., and K.C., Deprived Children, Victor Colungo and Vanessa Colungo, Appellants, v.
State of Oklahoma, Appellee. Appeal from an
Order of the District Court of Oklahoma County, Hon. Lisa Tipping Davis, Trial Judge. Vanessa Colungo (Mother) and Victor Colungo
(Father) (collectively “Parents”) appeal from
the trial court’s orders terminating their parental rights in their minor children following a
jury trial. Parents contend the jury’s verdict
was not supported by clear and convincing
evidence or in the best interest of the minor
children and that the evidence presented at
trial indicated they were in substantial compliance with their ISP. The record provides Parents have refused to acknowledge or accept
any responsibility for why the minor children
were removed and placed in DHS custody or
that they could implement any of the training
they had been taught in their various classes.
Accordingly, we agree that the jury’s findings
that Parents have failed to correct the conditions which led to the deprived adjudication
are supported by clear and convincing evidence and that it is in the minor children’s best
interest that Parents’ parental rights be terminated. Parents further contend they were not
reasonably informed of the expected conduct
required to correct the conditions that caused
the minor children to be deprived. We find
Parents had sufficient notice of the conditions
that needed correcting to prevent termination.
The evidence introduced at trial, including testimony of State’s witnesses, as well as the DHS,
tribal, and CASA reports filed in this case,
demonstrates Parents were given notice of the
conditions that needed correcting as well as
extensive time to correct these conditions.
Therefore, we reject Parents’ due process argument. Finally, our review of the orders terminating Parents’ parental rights reveal two (2)
scrivener’s errors. Accordingly, upon remand
the trial court is directed to enter orders nunc
Vol. 87 — No. 13 — 5/14/2016
pro tunc correcting the scrivener’s errors.
AFFIRMED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals,
Division IV, by Goodman, C.J.; Wiseman, P.J.,
and Fischer, J., concur.
112,924 — In the Matter of J.B., a child under
18 years of age. Bryan Byers, Appellant, vs.
State of Oklahoma, Appellee. Appeal from the
District Court of Tulsa County, Oklahoma,
Hon. Kirsten Pace, Trial Judge. Bryan Byers
(Father) appeals the order terminating his
parental rights for failure to correct the conditions which led to the adjudication that his
child was deprived. Father argues that he was
denied procedural due process because the
child’s attorney adopted the State’s case in
chief. “The essence of procedural due process
in the context of a proceeding to terminate
parental rights is a fair opportunity to be heard
and present a defense. This includes a reasonable opportunity to confront and cross-examine witnesses.” In re A.M. & R.W., 2000 OK 82,
¶ 16, 13 P.3d 484. Father was permitted to
attend the trial and present testimony before
the jury. He was also permitted to cross-examine witnesses called by the State. Father called
the child as a witness and engaged her in direct
and redirect examination. Father has failed to
show that he was denied any opportunity to
make his case and present a defense. Therefore,
we find no denial of procedural due process in
this case. AFFIRMED. Opinion from the Court
of Civil Appeals, Division IV by Fischer, J.,
Goodman, C.J. and Wiseman, P.J., concur.
113,045 — In re the Marriage of: Paul Tremoulet Rivers, Petitioner/Appellant, v. Catharine S. Taylor, Respondent/Appellee. Paul
Tremoulet Rivers (Father) appeals from a
Decree of Dissolution of Marriage of the District Court of Oklahoma County, Hon. Barry L.
Hafar, Trial Judge, alleging the trial court erred
in (1) awarding Catharine S. Taylor (Mother)
sole custody of the couple’s daughter, allowing
Mother to relocate the child to Michigan, and
limiting Father’s visitation, (2) calculating child
support and allocating child-related expenses,
(3) awarding Mother her separate property,
and (4) failing to award Father “equitable restitution” for monies invested in Mother’s home.
Regarding Father’s objections to custody and
relocation of the minor child, we find no error
and affirm the trial court’s award of sole custody to Mother and its finding that Mother
may relocate with the child outside Oklahoma.
Vol. 87 — No. 13 — 5/14/2016
As to Father’s visitation, we reverse the summer visitation schedule after the child begins
kindergarten and remand this issue to the trial
court to modify the visitation schedule to reflect the same summer visitation schedule provided before the child begins kindergarten. As
to child support and child-related expenses,
we agree that the trial court failed to specify
the incomes of the parties it used to determine
child support. We cannot determine how the
trial court arrived at the child support amount
because no child support computation form
was included in the appellate record. Without
the court’s child support computation form,
we cannot review the propriety of the trial
court’s decision on child support and the allocation of child-related expenses. We reverse the
portions of the decree regarding child support
and child-related expenses and remand for
compliance with the statutory requirements set
forth in 43 O.S.2011 § 120. As to the award of
separate property to Mother, we conclude the
evidence supports the trial court’s decision, and
we affirm. As to Father’s claim for “equitable
restitution,” regarding Mother’s home, we find
nothing in the appellate record establishes the
value of the home at the time of marriage. Without this evidence, we cannot determine the
amount of any increase in the value of the home
attributable to Father’s skill or efforts. The trial
court’s decision on this issue is affirmed. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals,
Division IV, by Wiseman, P.J.; Goodman, C.J.,
Monday, April 11, 2016
113,860 — Teresa Saunders and Michael
Lowell, Individuals and Next of Kin of Betty
Lowell, Deceased, Plaintiffs/Appellants, vs.
Mangum Nursing Center, LLC, d/b/a Grace
Living Center – Mangum; Don Greiner, Individually, Amity Care, LLC, Defendants/Appellees. Appeal from an order of the District Court
of Oklahoma County, Hon. Thomas E. Prince,
Trial Judge, granting Don Greiner’s motion to
dismiss and certifying the dismissal for appeal.
Betty Lowell was a nursing home resident at
Grace Living Center in Mangum, Oklahoma,
and Plaintiffs allege she died as a result of the
Defendants’ wrongful conduct. Don Greiner
was sued in his individual capacity as an Officer and President/Manager of the facility.
Greiner filed a motion to dismiss, contending
Plaintiffs cannot sue an officer except in compliance with 12 O.S. Supp. 2013 § 682. The trial
1001
court granted the motion and certified its order
for immediate appeal pursuant to 12 O.S. § 994.
We conclude it was error to apply the 2013
amendments to these claims and to grant
Greiner’s motion to dismiss. And from the face
of the amended petition, Plaintiffs claim relief
against Greiner based on his own conduct.
Whether the evidence supports this claim is
not before us. Plaintiffs have stated a legally
cognizable claim based on their assertion that
Greiner’s own participation in the affairs of the
nursing home directly caused Plaintiffs’ damages. We reverse the trial court’s order granting
Greiner’s motion to dismiss and remand for
further proceedings consistent with the Opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the
Court of Civil Appeals, Division IV, by Wiseman, P.J.; Fischer, J., and Thornbrugh, J. (sitting
by designation), concur.
112,640 — Joe Harwood, Petitioner/Appellee,
v. Deborah Ann Harwood, Respondent/ Appellant. Appeal from an order the District Court of
Delaware County, Hon. Barry V. Denney, Trial
Judge, denying Deborah Ann Harwood’s (Wife)
motion to vacate Decree of Dissolution of Marriage. Wife filed a motion to vacate within 30
days of the trial court’s order declaring the parties divorced, thus invoking the court’s termtime authority. In denying Wife’s term-time
motion, the trial court abused its discretion by
requiring Wife to prove a 12 O.S.2011, § 651
ground in support of her motion. The order
denying Wife’s motion to vacate the Decree of
Dissolution of Marriage and Property Settlement Agreement is therefore reversed and the
matter remanded for further proceedings consistent with this opinion. REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals,
Division IV, by Goodman, C.J.; Wiseman, P.J.,
113,720 — Carol K. Rooney, on behalf of herself and those similarly situated, Plaintiff/Appellant, vs. City of Oklahoma City, Oklahoma,
a Municipal Corporation, Defendant, and CoxCom, LLC, a Delaware limited liability company, f/k/a CoxCom, Inc., f/k/a Cox Cable
Oklahoma City, Inc., Defendants/Appellees.
Appeal from an order of the District Court of
Oklahoma County, Hon. Tracy Schumacher,
Trial Judge, denying Plaintiff’s motion for class
certification. Rooney, a Cox cable subscriber,
1002
filed suit individually and on behalf of all other
persons similarly situated against the City of
Oklahoma City and Cox claiming they violated
Oklahoma law in their assessment and collection of a franchise fee because it emanates from
the City’s police power to regulate the operation of cable television systems, the fee bears
no relationship to the cost of regulating the
franchise, the City has not even calculated that
cost, and the fee is therefore no more than a
prohibited indirect tax. Rooney moved to certify a class of plaintiffs pursuant to 12 O.S.2011
§ 2023. After substantial briefing by all parties
and a hearing on the issue, the trial court denied Rooney’s motion to certify. We conclude
the trial court’s findings of fact and conclusions
of law as contained in its order more than
adequately explain the basis for its decision.
After a thorough review of the record and
applicable law, we see no error in the decision
reached by the trial court and affirm pursuant
to Oklahoma Supreme Court Rule 1.202(d), 12
O.S.2011, ch. 15, app. 1. SUMMARILY AFFIRMED UNDER RULE 1.202(d). Opinion
from the Court of Civil Appeals, Division IV,
by Wiseman, P.J.; Goodman, C.J., and Fischer,
J., concur.
ORDERS DENYING REHEARING
(Division No. 1)
Tuesday, March 22, 2016
113,361 — Susan Manchester, Trustee of
Bankruptcy Estate of Marissa Barker, Plaintiff/
Appellee, vs. Southern Hills Residences, LLC
d.b.a Seminole Ridge Apartments; D&S Management, Inc.; and Jason Lynne Hoover, Defendants/Appellants. Defendants/Appellants’
Petitions for Rehearing filed March 3, 2016 are
DENIED.
113,742 — Charlene Burris and David Houck,
Plaintiffs/Appellees, vs. Jennifer A. Kelley and
Rickey D. Kelley, wife and husband, Defendants/Appellants, and Treasurer of Murray
County, Oklahoma and Board of County Commissioners of Murray County, Oklahoma,
Defendants. Defendants/Appellants’ Petition
for Rehearing filed February 25, 2016 is
DENIED.
113,163 — In Re the Marriage of Jeanett Lupton Leibold and William Leibold: Jeanett Lupton Leibold, Petitioner/Appellant, vs. William
Leibold, Respondent/Appellee. Petitioner/
Appellant’s Petition for Rehearing filed March
17, 2016 is DENIED.
Vol. 87 — No. 13 — 5/14/2016
ORDERS DENYING REHEARING
(Division No. 1)
112,476 (comp. w/113,472) — In Re: the Marriage of Melissa Beth Fell and Travis Knight
Anderson, Melissa Beth Fell, Petitioner/Appellee, vs. Travis Knight An-derson, Respondent/
Appellant. Respondent/Appellant’s Petition
for Rehearing filed March 31, 2016 is DENIED.
113,472 (comp. w/112,476) — In Re: the Marriage of Melissa Beth Fell and Travis Knight
Anderson, Melissa Beth Fell, Petitioner/Appellee, vs. Travis Knight An-derson, Respondent/
Appellant. Respondent/Appellant’s Petition
for Rehearing filed March 31, 2016 is DENIED.
114,037 — Cobblestone Creek Management
Company, LLC, Plaintiff, vs. Kenneth Komiske
and Teri Komiske, Defendants, and City of
Norman, a municipal corporation, Plaintiff, vs.
Kenneth Komiske, Teri Komiske, Kelly J. Henderson, Cobblestone Creek Management Company, and Cobblestone Event Center, LLC,
Defendants, and Roy Donovan, Petra Klein,
Evgeny Fedorovich, Darrel E. Schreiner, Evelyn F. Schreiner, Theunis Frederick Steyn, Elizabeth Steyn, Sinyu Dai and Xuguang Wang,
Plaintiffs/Counter-Defendants, and Ernest B.
Helin, Karen J. Helin, Ronald H. James, Barbara Ann James, Kenneth Komiske, Teri Komiske,
Larry L. McHughes, Trustee of the Larry L.
McHughes Revocable Trust, Jesse Smith, Abby
Smith, Chad T. Thrailkill and April A. Thrailkill,
Plaintiffs/Counter-Defendants/Appellants,
vs. Cobblestone Creek Management Company,
LLC, Larry Denny and Michael C. Rainer, Defendants/Counter-Claimants/Appellees, and
Cobblestone Creek Golf Club, LLC, Cobblestone Creek Homeowners Association, Cobblestone Event Center, Wayne Veal, Tracy Veal,
Anna Moore and Thad Moore, Defendants.
Appellee Cobblestone Creek Management
Company, LLC’s Petition for Rehearing filed
March 31, 2016, is DENIED.
Vol. 87 — No. 13 — 5/14/2016
(Division No. 2)
113,626 — Gerlad Williams, Plaintiff/Appellee, vs. Johnny Manos, Defendant/Appellant.
Appellant’s Petition for Rehearing is hereby
DENIED.
114,579 — Stacy Caffey, an individual, Plaintiff/Appellant, vs. BH Media Holdings, Inc.,
d/b/a Tulsa World, a Foreign for Profit Business Corporation, Defendant/Appellee and
Kum & Go, L.C., d/b/a Kum & Go #0867, a
Foreign Limited Liability Corporation; and The
City of Tulsa, Defendants. Appellee’s Petition
for Rehearing is hereby DENIED.
(Division No. 3)
113,234 — In re the Marriage of Roy Paul
Dorsey and Betty Lillian Dorsey: Roy Paul
Dorsey, Petitioner/Appellant, vs. Betty Lillian
Dorsey, Respondent/Appellee. Appellee’s Petition for Rehearing and Brief in Support, filed
April 13, 2016, is DENIED.
(Division No. 4)
Monday, April 25, 2016
113,047 — The Bank of New York Mellon
f/k/a The Bank of New York, not in its individual capacity but solely as Trustee for the
Benefit of the Certificate-holders of the CWABS,
Inc., Asset-backed Certificates, Series 2005BCS, Plaintiff/Appellee, vs. William L. Howard a/k/a William Lee Howard, Defendant/
Appellant, and Jane Doe, Spouse of William
Howard, a/k/a William Lee Howard, if married and Occupants of the Premises, Defendants. Appellant’s Petition for Rehearing is
hereby DENIED.
112,988 — Wells Fargo Bank, National Association, Plaintiff/Appellee, vs. Apache Tribe of
Oklahoma, Defendant/Appellant. Appellant’s
Petition for Rehearing is hereby DENIED.
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NW Classen, OKC. Telephone, library, waiting area, receptionist, telephone answering service, desk, chair,
file cabinet, included in rent one for $290 and two for
$390 per month. No lease required. Contact Gene or
Charles 405-525-6671.
SOUTH OKC OFFICE SPACE in a building complex
surrounding a tranquil park-like setting in the Willowbrook Gardens Professional Building located on South
Walker Avenue just south of I-240. Variety of space
available from as little as one office up to 3,500 square
feet. Large reception area, kitchen and offices with a
view! Call 405-570-4550.
LUXURY OFFICE SPACE FOR LEASE – One or two
offices for lease in S. OKC, 9905 S. Pennsylvania. Lease
includes use of reception area, conference rooms,
receptionist, kitchen, copier, fax and high speed Internet. One office is $900, two offices is $1600. If interested, please contact Courtney at 405-692-7676 or kyle@
bmclawok.com.
OFFICE SHARE
ENID ATTORNEY SEEKS ATTORNEY FOR OFFICE
SHARING, case overflow or associate position. Salary
is an option. No experience required. Negotiable rent.
Copier/fax machine, Internet, supplies and office staff
are included in rent. Experienced attorney available
for assistance. Submit resumes or questions to clerk@
rnsingletonlaw.com or P.O. Box 1587 Enid, OK 73702.
POSITIONS AVAILABLE
ATTORNEY POSITION AVAILABLE IN NORTH/
CENTRAL OKLAHOMA. Large criminal defense caseload. 1-5 years of criminal defense experience required.
Base pay of $3,500 per month with paid vacation. Opportunities for additional income available. Please
send a writing sample and resume to “Box EE,” Oklahoma Bar Association, P.O Box 53036, Oklahoma City,
OK 73152.
Vol. 87 — No. 13 — 5/14/2016
POSITIONS AVAILABLE
POSITIONS AVAILABLE
NORMAN LAW FIRM IS SEEKING sharp, motivated
attorneys for fast-paced transactional work. Members
of our growing firm enjoy a team atmosphere and an
energetic environment. Attorneys will be part of a creative process in solving tax cases, handle an assigned
caseload, and will be assisted by an experienced support
staff. Our firm offers health insurance benefits, paid vacation, paid personal days, and a 401K matching program. Applicants need to be admitted to practice law in
Oklahoma. No tax experience necessary. Submit cover
letter and résumé to [email protected].
SOUTH TULSA LAW FIRM HAS AN OPENING FOR
A PARALEGAL. We are looking for a candidate that
has background experience in insurance defense;
trucking experience would be a plus. The duties involve the management of all of the documents related
to the defense of personal injury cases. The ability to
request, organize and review medical records is a must.
The duties also include preparing matters for significant events such as a deposition, mediation or trial.
Candidate should have excellent organization skills.
Please send your resume to [email protected].
DOWNTOWN LITIGATION FIRM SEEKING ATTORNEY with 3-7 years’ experience. Excellent research and
writing skills required. Salary competitive and commensurate with experience. Send resume, writing sample and references to Brown & Gould, 136 NW 10th,
Ste. 200, Oklahoma City, OK 73103.
THE OKLAHOMA BAR ASSOCIATION HEROES program is looking for several volunteer attorneys. The
need for FAMILY LAW ATTORNEYS is critical, but attorneys from all practice areas are needed. All ages, all
counties. Gain invaluable experience, or mentor a
young attorney, while helping someone in need. For
more information or to sign up, contact Gisele Perryman, 405-416-7086 or [email protected].
SEEKING ASSISTANT DISTRICT ATTORNEY FOR
LOGAN COUNTY DISTRICT ATTORNEY’S OFFICE located in Guthrie. Minimum 5 years major crimes jury
trial experience required. Prosecution experience preferred. Must have strong work ethic and ability to professionally work with partner agencies, law enforcement
and the bar. Send resume and contact information to
[email protected].
CONNER & WINTERS, A REGIONAL FULL SERVICE
FIRM, SEEKS ASSOCIATE ATTORNEY with 2 to 4
years of experience for a full-time litigation position in
Oklahoma City. The ideal candidate will possess excellent legal writing and research skills, a willingness to
work closely with senior attorneys while independently taking responsibility for challenging projects and
cases in a variety of energy related industries. This
unique position will be part of a dynamic litigation
team responsible for complex, multi-party cases involving unique and strategic client issues in multiple
states. Creativity and a strong academic background
will contribute to the team’s analysis and implementation of critical key solutions in major cases. This partnership track position is immediately available and
provides top of the market compensation and benefits.
Applicants should submit resume, law school transcript and writing sample under cover letter to “Recruiting Coordinator” via email to OKCRecruiting@
cwlaw.com. All applications are confidential.
FULL TIME LITIGATION LEGAL ASSISTANT FOR
SMALL NORMAN FAMILY LAW FIRM. Well organized, self-motivated, excellent work ethic, exceptional
tech and communication skills required. Salary commensurate with experience and education. Benefits available;
M-F and occasional evenings/or weekends when caseload requires. Send resume to [email protected].
PARRISH DEVAUGHN INJURY LAWYERS IS SEEKING TO ADD AN ASSOCIATE with a passion for personal injury cases to our team. Visit our website at
pepperwins.com to learn more about us. Please email
your resume to [email protected].
Vol. 87 — No. 13 — 5/14/2016
STILLWATER CITY ATTORNEY’S OFFICE seeks applications from qualified individuals to fill an entry level
assistant city attorney position. This attorney will be
responsible for transactional work, special projects and
some board/committee representation. Strong communication, writing and research skills are required. Recent law school graduates and newly licensed attorneys
are encouraged to apply. Starting salary is competitive
with Oklahoma City and Tulsa area markets and includes a generous city employee benefits package. Relocation benefits may also be offered. Send resume,
short writing sample and references by June 1, 2016, to
Kerry Lee, Human Resources Department, City of Stillwater, P.O. Box 1449, Stillwater, OK 74076 or email to
[email protected].
ATTORNEY POSITION IN SOUTH OKC FIRM. We are
looking for one or two highly motivated attorneys to
help assist with personal injury, criminal defense and
family law case load as well as any other areas the attorney is versed in. Pay can be based on percentage of
work, salary or combination of both. Send resume to
[email protected].
TWO ATTORNEY POSITIONS OPEN FOR WORK IN
THE OKLAHOMA CITY metropolitan area beginning
July 1, 2016. Moderate to heavy criminal defense caseload. Experienced preferred, but not mandatory. Base
pay of $3,500 per month with opportunity for additional income available. Office space, secretary and malpractice insurance provided. Additional benefits not
provided. Include a letter of interest and writing sample with your resume. Send to “Box K,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
LONG-STANDING TULSA LITIGATION FIRM WITH
DIVERSE CIVIL PRACTICE seeks an attorney with 3
to 10 years of experience. Compensation DOE with
excellent benefits. Applications kept in strict confidence. Send resume, writing sample and references to
[email protected].
1005
POSITIONS AVAILABLE
POSITIONS AVAILABLE
TULSA LAW FIRM SEEKS STAFF ATTORNEY OR ASSOCIATE to lead growing personal injury division. Experienced PI practitioners and newly licensed attorneys
with PI internships are encouraged to inquire. Negotiable compensation includes base salary plus performance incentives. All inquiries are confidential. Send
replies to “Box NN, Oklahoma Bar Association, P.O.
Box 53036, Oklahoma City, OK 73152.
MCAFEE & TAFT IS SEEKING AN ASSOCIATE ATTORNEY WITH 1-3 YEARS EXPERIENCE to join its
Litigation Practice Group in its TULSA office. Ideal candidates will have experience in research and writing,
fact investigation, hearings, depositions and case evaluation, and will be highly motivated and able to manage a diverse caseload of civil litigation matters. Top
academic performance, strong writing and analytical
skills, interpersonal skills and the ability to work in a
team environment are required. Please submit resume,
law school transcript and a writing sample to Craig
Buchan at McAfee & Taft A Professional Corporation,
1717 S. Boulder, Suite 900, Tulsa, OK 74119. All inquiries will be treated confidentially. No emails or phone
calls, please.
MCAFEE & TAFT IS SEEKING AN ASSOCIATE ATTORNEY WITH 1-3 YEARS EXPERIENCE to join its
Litigation Practice Group in its OKLAHOMA CITY office. Ideal candidates will have experience in research
and writing, fact investigation, hearings, depositions
and case evaluation, and will be highly motivated and
able to manage a diverse caseload of civil litigation
matters. Top academic performance, strong writing
and analytical skills, interpersonal skills and the ability
to work in a team environment are required. Please
submit resume, law school transcript, and a writing
sample to Rodney Hunsinger at McAfee & Taft A Professional Corporation, Two Leadership Square, 10th
Floor, 211 N. Robinson, Oklahoma City, OK 73102. All
inquiries will be treated confidentially. No emails or
phone calls, please.
THE OKLAHOMA DEPARTMENT OF MENTAL
HEALTH AND SUBSTANCE ABUSE SERVICES
(ODMHSAS) IS RECRUITING FOR AN ASSISTANT
GENERAL COUNSEL III. This position performs professional legal work, which includes representing the
agency in court and administrative proceedings, performing legal research and advising the agency regarding a variety of legal matters. Candidates must obtain a
J.D. from an ABA accredited law school and be a member
in good standing with the Oklahoma Bar, with a minimum of 6 years of experience in practicing law. Preference may be given to applicants with experience in civil
and administrative litigation and for individuals with
experience in representing governmental entities. Preference may also be given for individuals with experience in
the practice of healthcare, including mental health law,
employment or administrative law. Applicants must be
willing and able to fulfill all job related travel normally
associated with this position. The position is in Oklahoma City and the annual salary is $70,000. ODMHSAS
offers excellent benefit and retirement packages; reference job title #2016 - 58 CO and apply to address ODMHSAS-Human Resources, 2401 NW 23rd, Suite 85,
OKC, OK 73107 or [email protected] with
a copy of your most recent performance evaluation.
Reasonable accommodation to individuals with disabilities may be provided upon request. EOE Application period: 05/13/2016 – 06/10/2016.
1006
FAST-PACED OKC INJURY FIRM SEEKS ASSOCIATE
ATTORNEY. Ideal candidate will possess 1 - 5 years of
experience in personal injury and/or insurance defense. We are looking for someone who is hard-working, highly-organized and able to work independently.
Offering competitive pay with excellent income potential. Please submit resume and writing sample to “Box
BB,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
AV RATED DOWNTOWN OKC INSURANCE DEFENSE FIRM seeks associate with 7 to 10 years litigation experience in bad faith/civil litigation. Candidate
should be self-motivated, detail oriented and have
strong research and writing skills. The primary duties
of the position will involve briefing and written discovery. Salary and benefits commensurate with experience.
Send replies to “Box GG,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
POSITIONS WANTED
ATTORNEY SEEKING A PART-TIME POSITION in the
Tulsa, Owasso or surrounding area. Extensive experience in preparing Supplemental and Division Order
Title Opinions. Experience in preparing wills and
trusts. Available to work in your office or offsite. Call
Sandra at 918-798-6655.
LOOKING TO PURCHASE
LOOKING TO EITHER PURCHASE A FIRM/BOOK
OF BUSINESS OR A PARTNERSHIP in Oklahoma City
or Tulsa. This could be a great opportunity for someone
looking to retire, move or switch careers. Also, I have
extensive experience in civil litigation and could compliment your area of practice if you consistently have
clients looking for a civil/trial attorney. Please contact
me at [email protected]. All inquiries will
be kept strictly confidential.
Vol. 87 — No. 13 — 5/14/2016
YOU MAY EARN
UNLIMITED
HOURS FOR
WEBCAST
ENCORES
Wed., May 18 @ 9:00 a.m.
The Art & Science of Successful
Settlements and Deals:
EXPERTS TELL ALL - Scenario #1: Family
Partnership Dispute (1 / 0 MCLE)
Wed., May 18 @ 10:15 a.m.
EXPERTS TELL ALL - Scenario #2: The
EXPE
Business Sale (1 / 0 MCLE)
Wed., May 18 @ 11:30 a.m.
EXPERTS TELL ALL - Scenario #3: Personal Injury Matter (1 / 0 MCLE)
Thurs., May 19 @ 2 p.m.
Reporting Requirements under the
Affordable Care Act:
You Need to Know File Forms
1094-C and 1095-C
Tues., May 24 @ 3 p.m.
Reporting Requirements under the
Affordable Care Act:
What You Need to Know File Forms
1094-C and 1095-C
Wed., May 25 @ 9:00 a.m.
EXPERTS TELL ALL - Scenario #1: Family
EXPE
Partnership Dispute (1 / 0 MCLE)
Wed., May 25 @ 10:15 a.m.
EXPERTS TELL ALL - Scenario #2: The
Business Sale (1 / 0 MCLE)
Wed., May 25 @ 11:30 a.m.
EXPERTS TELL ALL - Scenario #3: Personal Injury Matter (1 / 0 MCLE)
To register go to: www.okbar.org/members/CLE/WebcastEncore
Vol. 87 — No. 13 — 5/14/2016
1007
EQUITY
BIG CHANGE IN START-UP
FINANCING AND WHAT IT
MEANS TO YOUR CLIENTS
Co-sponsored by the Business & Corporate Law Section
May 20, 2016, 9 a.m. - 4:10 p.m.
OKLAHOMA BAR CENTER, OKC
Speaker: Clifford
R. Encino, Fairfield, Connecticut
Cli
AVAI LA
BL E
7.5/1
In this entertaining and fast-paced program,
a leading venture attorney, entrepreneurship
expert and author of “The Crowdfunding
Handbook” will address the practical issues
raised by the JOBS Act, the questions your
clients will raise about crowdfunded offerings
of securities, and the role of counsel in
facilitating this “brave new world” of capital
formation.
Each participant will also
receive a copy of Cliff Ennico’s
book, The Crowdfunding
Handbook: Raise Money for
Your Small Business or Start-Up
with Equity Funding Portals.
$225 for early-bird registrations with payment received at least four full business days
prior to the seminar date; $250 for registrations with payment received within four full
business days of the seminar date. Walk-ins $275. To receive a $10 live program discount register online at www.okbar.org/members/cle. The program will also be webcast (pricing varies). OBA Business and Corporate Law Section members will receive
an $85 discount! Program approved for 7.5 MCLE credits including 1 ethics.
For more information go to: www.okbar.org/members/CLE

Vol 87 No 13 (May 14) - Oklahoma Bar Association

Transcription

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