May 24 - Oklahoma Bar Association

Transcription

Volume 85 u No. 15 u May 24, 2014
IN THIS ISSUE:
AMENDMENTS TO TH
EO
UNIFORM JURY INS KLAHOMA
TRUCTIONS
plus:
MCLE RULES CHANG
ES
FOR SENIOR LAWYE
RS
1162
The Oklahoma Bar Journal
Vol. 85 — No. 15 — 5/24/2014
OFFICERS & BOARD OF GOVERNORS
Renée DeMoss, President, Tulsa
David A. Poarch Jr., President-Elect, Norman
Susan S. Shields, Vice-President, Oklahoma City
James T. Stuart, Immediate Past President, Shawnee
Deirdre O’Neil Dexter, Sand Springs
Robert D. Gifford II, Oklahoma City
Kimberly Hays, Tulsa
Douglas L. Jackson, Enid
John W. Kinslow, Lawton
Rickey J. Knighton, Norman
James R. Marshall, Shawnee
Nancy S. Parrott, Oklahoma City
Kevin T. Sain, Idabel
Bret A. Smith, Muskogee
Richard D. Stevens, Norman
Linda S. Thomas, Bartlesville
Kaleb Hennigh, Enid
Chairperson, OBA/Young Lawyers Division
BAR Center Staff
John Morris Williams, Executive Director;
Gina L. Hendryx, General Counsel; Jim Calloway,
Director of Management Assistance Program;
Craig D. Combs, Director of Administration;
Susan Damron Krug, Director of Educational
Programs; Beverly Petry Lewis, Administrator
MCLE Commission; Carol A. Manning, Director
of Communications; Travis Pickens, Ethics Counsel;
Robbin Watson, Director of Information Technology;
Jane McConnell, Coordinator Law-related Education;
Loraine Dillinder Farabow, Tommy Humphries,
Debbie Maddox, Katherine Ogden, Steve Sullins,
Assistant General Counsels; Tommy Butler, Tanner
Condley, Sharon Orth, William Thames and
Krystal Willis, Investigators
Manni Arzola, Jarrod Houston Beckstrom,
Debbie Brink, Emily Buchanan, Susan Carey,
Nickie Day, Dieadra Florence, Johnny Marie
Floyd, Matt Gayle, Brandon Haynie, Suzi
Hendrix, Misty Hill, Debra Jenkins, Durrel
Lattimore, Heidi McComb, Renee Montgomery,
Larry Quinn, Lori Rasmussen, Wanda F. Reece,
Tracy Sanders, Mark Schneidewent, Jan
Thompson, Laura Willis & Roberta Yarbrough
EDITORIAL BOARD
Editor in Chief, John Morris Williams; News &
Layout Editor, Carol A. Manning; Editor,
Melissa DeLacerda, Stillwater; Associate Editors:
Dietmar K. Caudle, Lawton; Emily Duensing,
Tulsa; Erin Means, Moore; Shannon Lee Prescott,
Okmulgee; Mark Ramsey, Claremore; Judge
Megan Simpson, Buffalo; Leslie Taylor, Ada;
Judge Allen J. Welch, Oklahoma City;
January Windrix, Poteau
events Calendar
MAY 2014
26
27
28
OBA Closed – Memorial Day observed
OBA Women in Law Committee meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City and University of Tulsa, Tulsa; Contact Allison
Thompson 918-295-3604
OBA Work/Life Balance Committee meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City with teleconference; Contact Sarah Schumacher
405-752-5565
JUNE 2014
3
5
6
10
13
17
OBA Government and Administrative Law Practice Section
meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference;
Contact Scott Boughton 405-717-8957
OBA Lawyers Helping Lawyers discussion group meeting;
6 p.m.; Office of Tom Cummings, 701 NW 13th St., Oklahoma City; RSVP
to Kim Reber [email protected]
OBA Lawyers Helping Lawyers discussion group meeting; 6 p.m.;
University of Tulsa College of Law, John Rogers Hall, 3120 E. 4th Pl.,
Rm. 206, Tulsa; RSVP to Kim Reber [email protected]
OBA Professional Responsibility Commission meeting; 9 a.m.;
Oklahoma Bar Center, Oklahoma City; Contact Dieadra Goss 405-416-7063
OBA Alternative Dispute Resolution Section meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City and OSU Tulsa, Tulsa; Contact
Jeffrey Love 405-285-9191
OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center,
Oklahoma City with teleconference; Contact Ruth Addison 918-574-3051
OBA Legal Intern Committee meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City with teleconference; Contact Candace Blalock 405-238-0143
OBA Board of Bar Examiners meeting; 9 a.m.; Oklahoma Bar Center,
Oklahoma City; Contact Oklahoma Board of Bar Examiners 405-416-7075
OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City and OSU Tulsa, Tulsa; Contact M. Shane Henry 918-585-1107
OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City and OSU Tulsa, Tulsa; Contact Judge David Lewis
405-556-9611
For more events go to www.okbar.org/calendar
The Oklahoma Bar Association’s official website:
www.okbar.org
NOTICE of change of address (which must be
in writing and signed by the OBA member),
undeliverable copies, orders for subscriptions
or ads, news stories, articles and all mail items
should be sent to the Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152-3036.
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar
Association. All rights reserved. Copyright© 2014
2008 Oklahoma Bar Association.
The design of the scales and the “Oklahoma Bar Association” encircling the
scales are trademarks of the Oklahoma Bar Association. Legal articles carried
in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
Oklahoma Bar Association 405-416-7000
Toll Free 800-522-8065 FAX 405-416-7001
Continuing Legal Education 405-416-7006
Ethics Counsel 405-416-7055
General Counsel 405-416-7007
Law-related Education 405-416-7005
Lawyers Helping Lawyers 800-364-7886
Mgmt. Assistance Program 405-416-7008
Mandatory CLE 405-416-7009
OBJ & Communications 405-416-7004
Board of Bar Examiners 405-416-7075
Oklahoma Bar Foundation 405-416-7070
The Oklahoma Bar Journal (ISSN 0030-1655) is published three times
a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and
July. by
July
by the
the Oklahoma
Oklahoma Bar Association, 1901 N. Lincoln Boulevard,
Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER: Send address changes to THE OKLAHOMA
BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscriptions are $60
$55 per year except for law students registered with the
Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any
opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar
Journal Board of Editors.
Vol. 85 — No. 15 — 5/24/2014
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Vol. 85 — No. 15 — 5/24/2014
Oklahoma Bar Association
table of
contents
May 24, 2014 • Vol. 85 • No. 15
page
1163 Events Calendar
1166 Index to Court Opinions
1168Supreme Court Opinions
1168 Oklahoma Uniform Jury Instruction Changes
1198 MCLE Changes for Senior Lawyers
1217Court of Criminal Appeals Opinions
1222 Bar News and In Memoriam
1223Court of Civil Appeals Opinions
Vol. 85 — No. 15 — 5/24/2014
1165
Index to Opinions of Supreme Court
2014 OK 17 IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS - CIVIL (SECOND). S.C.A.D. No. 2014-17........................................................................ 1168
2014 OK 18 IN RE: AMENDMENT TO THE OKLAHOMA UNIFORM DISTRICT COURT
RULES, 12 O.S. Ch. 2, App. S.C.A.D. No. 2014-18........................................................................ 1197
2014 OK 19 IN RE: AMENDMENT TO THE OKLAHOMA SUPREME COURT RULES, 12
O.S. Ch. 15, App. 1 S.C.A.D. No. 2014-19....................................................................................... 1197
2014 OK 26 IN RE: Rules for Mandatory Continuing Legal Education SCBD No. 3319............... 1198
2014 OK 36 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. STEVEN ALLEN HART, Respondent. SCBD-6120.................................................. 1201
2014 OK 37 PHILLIP RYAN PIERCE, Plaintiff/Appellee, v. STATE OF OKLAHOMA ex
rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant. No. 111,418 [Companion to Nos. 111,419 and 111,420]................................................................................................ 1202
2014 OK 38 GLENHURST HOMEOWNERS ASSOCIATION, INC., Plaintiff-Appellee, v.
XI FAMILY TRUST, XIANG YU REN, TRUSTEE, Defendants-Appellants. Appeal No.
110,574 (consolidated with Appeal No. 110,838 for purposes of published opinion)............. 1207
2014 OK 39 CHESTER ROUSE, Plaintiff/Appellant, v. GRAND RIVER DAM AUTHORITY and DANIEL S. SULLIVAN, Defendants/Appellees. No. 112,058..................................... 1210
2014 OK 40 IN RE: AMENDMENTS TO OKLAHOMA SUPREME COURT RULES
SCAD-2014-26..................................................................................................................................... 1213
2014 OK 41 RENEE BREWER, Plaintiff/Appellant, v. CITY OF SEMINOLE, Defendant/
Appellee. No. 112,292........................................................................................................................ 1214
Index to Opinions of Court of Criminal Appeals
2014 OK CR 3 CLAYTON LOCKETT and CHARLES WARNER, Appellants, v. STATE OF
OKLAHOMA, Appellee. No. D-2000-1330 D-2003-829 Cross Reference with Oklaho
ma Supreme Court Case No. 112,741.............................................................................................. 1217
Index to Opinions of Court of Civil Appeals
2014 OK CIV APP 32 IN RE THE MARRIAGE OF BILLY DALE BEENE AND JANICE
LOUISE BEENE: BILLY DALE BEENE, Petitioner/Appellee, vs. JANICE LOUISE
BEENE, Respondent/Appellant. Case No. 110,707...................................................................... 1223
2014 OK CIV APP 33 CITY OF TULSA and OWN RISK #10435, Insurance Carrier, Petitioners, vs. BRIAN S. O’KEEFE and THE WORKERS’ COMPENSATION COURT,
Respondents. Case No. 111,283........................................................................................................ 1224
1166
Vol. 85 — No. 15 — 5/24/2014
2014 OK CIV APP 34 PROLINE PRODUCTS, L.L.C., Plaintiff/Appellee, vs. TIM McBRIDE
AND CAMERON McBRIDE, Defendants/Appellants. Case No. 111,590................................ 1226
2014 OK CIV APP 35 RONALD TRENTHAM, Plaintiff/Appellant, vs. NORMAN
ISAACS, ALEX MINK, and DEAN THOMAS, Defendants/Appellees, and STILWELL
AREA DEVELOPMENT AUTHORITY, Intervenor/Appellee. Case No. 111,754.................... 1228
2014 OK CIV APP 36 BRENDA HOUSE, an individual resident of Ottawa County, Oklahoma, Plaintiff/Appellant, vs. VANCE FORD-LINCOLN-MERCURY, INC., an Oklahoma Corporation; and FORD MOTOR CREDIT COMPANY, L.L.C., a foreign limited
liability company, Defendants/Appellees. Case No. 109,314..................................................... 1232
2014 OK CIV APP 37 TERRY MOORE, individually and as next friend of JERRIT MOORE,
a minor, Plaintiff/Appellant, vs. ROBERT BLACKWELL and FARMERS INSURANCE COMPANY, INC., Defendants/Appellees. Case No. 109,685........................................ 1238
2014 OK CIV APP 38 WAYNE ALLEN SCHOMMER and DEBORAH ANN SCHOMMER,
Husband and Wife, Plaintiffs/Appellants, vs. COMMUNICATE NOW!, L.P. d/b/a
COMMUNICATION SOLUTIONS, Defendant/Appellee. Case No. 110,228.......................... 1256
2014 OK CIV APP 39 BLUE SKY TELLURIDE, L.L.C., Plaintiff/Counter-Claim Defendant/Appellee, vs. INTERCONTINENTAL JET SERVICE CORPORATION, Defendant/Counter-Claimant/Third-Party Plaintiff/Appellant, vs. HARLEY DAVIDSON
CREDIT CORP., Third-Party Defendant/Appellee. Case No. 110,652...................................... 1260
2014 OK CIV APP 40 INDEPENDENT SCHOOL DISTRICT NO. 5 OF TULSA COUNTY,
OKLAHOMA, Plaintiff/Appellee, vs. PATRICK L. TAYLOR and MARSHALETA
TAYLOR, husband and wife, Defendants/Appellants, and COMMUNICATION
FEDERAL CREDIT UNION, BOARD OF COUNTY COMMISSIONERS OF TULSA
COUNTY, and DENNIS J. SEMLER, as Treasurer of Tulsa County, State of Oklahoma,
Defendants. Case No. 110,709.......................................................................................................... 1266
2014 OK CIV APP 41 JONELL MCCLISH, Petitioner, vs. WOODARTS INC. &/or TTC
ILLINOIS, INC., CNA INSURANCE GROUP &/or CONTINENTAL CASUALTY
CO., and THE WORKERS’ COMPENSATION COURT, Respondents. Case No.
111,287.................................................................................................................................................. 1272
2014 OK CIV APP 42 JUDY ANN SMITH, as personal representative of the estate of Patty
Sue Yeater, deceased, Plaintiff/Appellee, vs. SHELTER MUTUAL INSURANCE
COMPANY, Defendant/Appellant, and DANNY RAY BREEDEN and DOYLE
DAVIS, Defendants. Case No. 111,356............................................................................................ 1276
2014 OK CIV APP 43 ASHLEY PAGET GRUENWALD, Petitioner/Appellee, vs. WIL
LIAM KEITH GRUENWALD, Respondent/Appellant. Case No. 111,722............................... 1280
Vol. 85 — No. 15 — 5/24/2014
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Supreme Court Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2014 OK 17
IN RE: AMENDMENTS TO THE
OKLAHOMA UNIFORM JURY
INSTRUCTIONS - CIVIL (SECOND).
S.C.A.D. No. 2014-17. March 24, 2014
ORDER ADOPTING AMENDMENTS TO
OKLAHOMA UNIFORM JURY
INSTRUCTIONS - CIVIL (SECOND)
¶1 The Court has reviewed the recommendations of the Oklahoma Supreme Court Committee for Uniform Civil Jury Instructions that
proposed Instructions should be adopted. The
Court finds that the revisions should be adopted as modified by the Court.
¶2 It is therefore ordered, adjudged and
decreed that the revisions to the Instructions
shall be available for access via internet from
the Court website at www.oscn.net and provided to West Publishing Company for publication. The Administrative Office of the Courts
is requested to duplicate and provide copies of
the revisions to the judges of the District
Courts, and the District Courts of the State of
Oklahoma are directed to implement these
revisions effective thirty (30) days from the
date of this Order.
¶3 It is therefore ordered, adjudged and
decreed that the amendments to the existing
Oklahoma Uniform Jury Instructions - Civil
(Second Edition), and the adoption of new
Instructions, as set out in the following designated Instructions and attached to this Order,
are hereby adopted: Instruction Nos. 1.2A, 1.9,
1.12, 1.13, 4.17, 5.9, 9.24, 9.26, 9.33, 9.34, 9.36,
18.1, 18.2, 21.1, 21.2, 21.3, 21.4, 21.5, 21.6, 21.7,
21.8, 21.9, 21.10, 21.11, 21.12, 21.21, 21.22, 21.23,
22.7, 28.1, 28.2, 28.3, 28.4, 28.5, 28.6, 28.7, 28.8,
28.9, 29.1, 29.2, 29.3, 29.4 & 29.5; and the Preface to Comparative Negligence Instructions
shall be stricken.
¶4 The Court also accepts and authorizes the
updated Committee’s comments, as modified
by the Court, to be published, together with the
above-referenced revisions and each amended
1168
page in the revisions to be noted at the bottom
thereof as follows (2014 Supp.).
¶ 5 As it did so previously, the Court today
declines to relinquish its constitutional or statutory authority to review the legal correctness
of these authorized Instructions when it is
called upon to afford corrective relief in any
adjudicative context.
¶ 6 These amended Instructions shall be
effective thirty (30) days from the date this
Order is filed with the Clerk of this Court.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THE 13th DAY
OF MARCH, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
Colbert, C.J., Reif, V.C.J., Kauger, Watt, Edmondson, Combs and Gurich, JJ., - concur,
Winchester, J. - concurs in result,
Taylor, J. - concurs in part and dissents in part.
I would adopt all of the recommendations of
the OUJI-CIV committee.
Instruction No. 1.2A. (NEW)
INTRODUCTORY INSTRUCTIONS —
JUROR QUESTIONNAIRES
IN THE DISTRICT COURT OF _____________
COUNTY, STATE OF OKLAHOMA
[Name],
Plaintiff,
v.
[Name],
Defendant.
)
)
) Case No.
)
)
)
JUROR QUESTIONNAIRE
Each prospective juror must complete and
sign this standard juror questionnaire and any
supplemental questionnaire provided by the
court. This questionnaire and any supplemental questionnaire shall be confidential and will
be used by the judge and the attorneys to aid
them in selecting the jury in this case. If you do
Vol. 85 — No. 15 — 5/24/2014
not understand a question, please indicate. If
you do not have enough room to give adequate
explanation to your answer, please use the
space in question 24 for additional information. If there is any question that you would
rather discuss with the judge and attorneys
privately outside the presence of other jurors,
please mark the question with an asterisk (*).
service, and specify whether service was
reserve or active duty: _____________________
1. Name: ________________________________
_________________________________________
(Last)
(First)
(Middle initial)
2. Sex: ( ) male ( ) female
3. Marital status: ( ) married ( ) never married
( ) separated ( ) divorced ( ) widowed
4. Age: _____________
5. Place of birth: _________________________
6. Length of residency in Oklahoma (years): __
_________________________________________
_________________________________________
15. List the organizations that you belong to or
participate in, and the offices, if any, that you
hold in these organizations: ________________
_________________________________________
16. If you are married, state spouse’s full name,
occupation and employer: _________________
_________________________________________
_________________________________________
_________________________________________
7. What county do you live in? _____________
17. If you have any children or step children,
please provide the following information:
8. List other places (city and state) you have
lived: ___________________________
Child # 1: sex ___ age ____ occupation _______
______________________________
9. What is your occupation? ________________
______________________________
(If retired or unemployed, write retired or unemployed and
give your previous occupation.)
10. If you are currently employed outside the
home, please provide:
Name of employer: ________________________
Job title: _________________________________
______________________________
______________________________
Length of time worked there: _______________
18. Have you ever served as a juror? ( ) yes
( ) no
11. List other types of jobs you have held as an
adult: ___________________________________
If yes, please provide the following information:
_________________________________________
Year Court/location Type of case were
you the
fore
person?
____ ______________ __________( )yes ( ) no
_________________________________________
12. Educational background: _______________
_________________________________________
_________________________________________
13. If you attended college or vocational school,
specify your major areas of study and any
degrees or certificates you earned and whether
you have taken any course in law: __________
_________________________________________
_________________________________________
_________________________________________
14. If you have had military experience, state
your highest rank, branch of service, length of
Vol. 85 — No. 15 — 5/24/2014
____ ______________ __________( ) yes ( ) no
____ ______________ __________( ) yes ( ) no
19. Have you ever appeared as a witness in any
court proceeding, either civil criminal or military? ( ) yes ( ) no
If yes, when and in what court? ____________
_________________________________________
20. Have you or any member of your immediate
family been a party to any kind of lawsuit or
court proceeding? Include all of the following:
Criminal
( ) yes ( ) no
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Bankruptcy
Civil
Workers’ compensation
Divorce
Other
( ) yes ( ) no
( ) yes ( ) no
( ) yes ( ) no
( ) yes ( ) no
( ) yes ( ) no
If yes to any, state when and in what court as to
each ____________________________________
_________________________________________
_________________________________________
21. Have you, any family member, or any close
friend ever worked for any attorney, a law
office? ( ) yes ( ) no
If yes, state each person’s name and relationship to you:
_________________________________________
_________________________________________
Position held: ____________________________
_________________________________________
Name of attorney or law office: _____________
_________________________________________
Dates of employment: _____________________
_________________________________________
22. Have you, any family member, or any close
friend ever worked in law enforcement? ( ) yes
( ) no
If the answer is yes, please identify the name of
the person(s) so employed, the particular agency or department(s), the position held for such
agency or department(s), and the years of
employment:
_________________________________________
_________________________________________
23. Are you presently taking medicine or have
any hearing or other health issue which may
affect your ability to serve as a juror? ( ) yes
( ) no
If yes, please explain: ______________________
_________________________________________
_________________________________________
24. Is there any reason you could not serve as a
juror? ( ) yes ( ) no
If yes, please explain: ______________________
_________________________________________
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_________________________________________
25. Use this space for any additional comments:
_________________________________________
_________________________________________
I affirm that the forgoing is true and correct to
the best of my knowledge and belief.
_________________________________________
_________________________________________
(Date and Place)
(Signature)
Notes on Use
In its discretion, the trial court may direct the
use of this juror questionnaire as well as supplemental questionnaires as a supplement to,
rather than a substitute for voir dire. If used,
juror questionnaires should be distributed to
the members of the jury pool before the commencement of voir dire, and adequate time for
the court and attorneys to review the jurors’
responses should be allowed before voir dire
begins.
Juror questionnaires should be kept confidential, and copies of them should be made
available only for use during voir dire to the
attorneys for the plaintiff(s) and defendant(s),
and to the trial court, except as needed for
appellate review. Juror questionnaires should
not be made a part of the public record. After
the jury has been empaneled, the original questionnaires of all empaneled or questioned jurors
should be retained pursuant to Okla. Sup. Ct. R.
1.28(l) until all appeals have been concluded. All
copies of juror questionnaires should be
destroyed at the conclusion of the voir dire, and
the originals of all questionnaires for jurors who
were not questioned during voir dire should be
destroyed at the conclusion of the jurors’ service,
unless the court orders otherwise for good cause
shown. See Okla. Dist. Ct. R. 32.
Comments
This form is based on the juror questionnaire
form in OUJI-CR 1-10, and it is provided to
offer guidance to the trial courts in the use of
juror questionnaires. A number of benefits
from the use of juror questionnaires have been
identified. Juror questionnaires may shorten
the time required for voir dire; however, this
benefit will not be realized unless attorneys
refrain from rehashing the information from
the questionnaires during voir dire. Another
benefit is that juror questionnaires may enable
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the court and counsel to weed out jurors who
could not serve in a case before voir dire
begins, and thereby accelerate the process of
sending these prospective jurors to a different
case. Juror questionnaires may also highlight
particular areas (such as prior employment
with law enforcement or employment with an
attorney or law office) for more focused inquiry
during voir dire. The use of juror questionnaires provides jurors more time to think about
their answers and provide more complete
responses than voir dire. In addition, since
jurors cannot hear the responses of other jurors
when they are filling out questionnaires on
their own, juror questionnaires can elicit the
jurors’ own opinions without the influence of
the responses by other jurors. Jurors may also
be more likely to reveal socially unacceptable
attitudes, such as racial prejudice or sexism, in
juror questionnaires. Similarly, jurors may be
more apt to disclose private or embarrassing
information (such as a prior criminal record) in
a juror questionnaire than in open court. See
Gregory P. Joseph, American Bar Association
Principles for Juries & Jury Trials, SL044 ALIABA 653, 730 (2005); Lin S. Lilley, Let Jurors
Speak the Truth, In Writing, 41 TRIAL 64 (July,
2005); Valerie Hans & Alyana Jehle, Avoid Bald
Men and People with Green Socks? Other Ways to
Improve the Voir Dire Process, 78 CHI-KENT L.
REV. 1179, 1198 (2003).
The American Bar Association has endorsed
the use of juror questionnaires. In February,
2005, the ABA House of Delegates approved 19
Principles for Juries and Jury Trials. Principle 11
states: “Courts should ensure that the process
used to empanel jurors effectively serves the
goal of assembling a fair and impartial jury.”
Paragraph A under Principle 11 provides:
Before voir dire begins, the court and
parties, through the use of appropriate
questionnaires, should be provided with
data pertinent to the eligibility of jurors
and to matters ordinarily raised in voir
dire, including such background information as is provided by prospective jurors in
their responses to the questions appended
to the notification and summons considered in Standard 10 D. 1.
1. In appropriate cases, the court should
consider using a specialized questionnaire addressing particular issues that
may arise. The court should permit the
parties to submit a proposed juror questionnaire. The parties should be required
Vol. 85 — No. 15 — 5/24/2014
to confer on the form and content of the
questionnaire. If the parties cannot agree,
each party should be afforded the opportunity to submit a proposed questionnaire and to comment upon any proposal
submitted by another party.
2. Jurors should be advised of the purpose of any questionnaire, how it will be
used and who will have access to the
information.
3. All completed questionnaires should
be provided to the parties in sufficient
time before the start of voir dire to enable
the parties to adequately review them
before the start of that examination.
American Bar Association, PRINCIPLES FOR
JURIES AND JURY TRIALS 13 (2005). In addition, New Mexico, New York, and Pennsylvania have adopted uniform juror questionnaires
for criminal cases. N. M. R. A. Crim. UJI 14-110;
N. Y. Ct. R., App. E; Pa. St. R. Crim. P. 632(A)(1)
(“Each prospective juror shall complete and
verify the standard, confidential juror information questionnaire required by paragraph (H)
of this rule, and any supplemental questionnaire provided by the court.”).
While juror questionnaires may provide a
number of benefits to the jury selection process, there have been concerns raised about
juror privacy. Mary R. Rose, Juror’s Views of
Voir Dire Questions, 85 JUDICATURE 10 (2001);
Paula L. Hannaford, Safeguarding Juror Privacy: A New Framework for Court Policies and
Procedures, 85 JUDICATURE 18 (2001). Juror
questionnaires pose a different threat to juror
privacy than voir dire in open court, because
juror questionnaires are written records. A concern for juror privacy is reflected in the ABA’s
principles for Juries and Jury Trials in Principle
7, which states: “Courts should protect juror
privacy insofar as consistent with the requirements of justice and the public interest.” Both
New York and Pennsylvania address concerns
for juror privacy by providing for destruction
of juror questionnaires at the conclusion of the
case. N. Y. Ct. R., App. E, ¶ A(1) (“Upon completion of the jury selection, or upon removal
of a prospective juror, the questionnaires shall
be either returned to the respective jurors or
collected and discarded by court staff in a manner that ensures juror privacy.”); Pa. St. R.
Crim. P. 632 (F), (G). Similarly, the Oklahoma
Supreme Court has provided for destruction of
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juror questionnaires. Okla. Dist. Ct. R. 32 and
Okla. Sup. Ct. 1.28(l).
Instruction No. 1.9
Jury’s Duties — To Be Given Prior to
Deliberation
Ladies and Gentlemen of the jury, that completes the argument. This case is now submitted to you for your decision and verdict.
When you have arrived in the jury room you
should first choose one of the jury as a foreperson and then begin deciding the case. You must
not use any method of chance in arriving at
your verdict, but rest it on the opinion of each
juror who agrees with it. The [forms of all possible verdicts]/(form for your verdict) will be
sent to the jury room with you, along with
these written instructions of the Court. If all
twelve (12) of you agree on a verdict, [select the
one (1) correct form of verdict and] only your
foreperson alone need sign it; if you do not all
agree, but at least nine (9) or more of you do,
then only those nine (9) or more agreeing will
each, individually, sign the verdict form. Notify
the Bailiff when you have arrived at a verdict so
that you may return it in open court.
Instruction No. 1.12 (NEW)
)
)
) Case No.
)
)
)
VERDICT FORM
We, the jury, empaneled and sworn in the
above entitled cause, do, upon our oaths, find
as follows:
(Check and complete either 1 or 2 below but
not both)
1. ________________ For Plaintiff, [name],
and against Defendant, [name], and fix the
amount of damages in the sum of $ _____.
2. _________________ For Defendant,
[name], and against Plaintiff, [name].
____________________
Foreperson
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_________________
____________________
_________________
____________________
_________________
____________________
_________________
____________________
_________________
Notes On Use
This is a general Verdict Form that may
be used in cases where there is a single
plaintiff and a single defendant and comparative negligence is not an issue. This
Verdict Form combines the alternative verdicts for the plaintiff and the defendant
into one form. Instead of using this Verdict
Form, the trial court may use separate Verdict Forms for plaintiff’s and defendant’s
verdicts as in Instruction Nos. 9.37 and
9.40, infra. Combining alternative Verdict
Forms into one form may be appropriate
where there are multiple claims, including
counterclaims, cross-claims, or third-party
claims in the case.
Instruction No. 1.13 (NEW)
Verdict Form, Counterclaim
Verdict Form
One Plaintiff, One Defendant
[Name],
Plaintiff,
v.
[Name],
Defendant.
____________________
_________________
[Name],
Plaintiff,
v.
[Name],
Defendant.
)
)
) Case No.
)
)
)
VERDICT FORM — COUNTERCLAIM
We, the jury, empaneled and sworn in the
above entitled cause, do, upon our oaths, find
as follows:
(Check and complete either 1 or 2 below but
not both)
1. _______ For Defendant, [name], and against
Plaintiff, [name], and fix the amount of damages in the sum of $ ________________.
2. _______ For Plaintiff, [name], and against
Defendant, [name].
____________________
Foreperson
_________________
____________________
_________________
____________________
_________________
____________________
_________________
Vol. 85 — No. 15 — 5/24/2014
____________________
_________________
____________________
_________________
Notes On Use
This Verdict Form may be given to the
jury separately from the Verdict Form on
plaintiff’s claim in cases where there is a
counterclaim. The Verdict Form may be
adapted for cross-claims, third-party
claims, and other types of claims.
Instruction No. 4.17
Effect Of Income Tax On Award of Damages
NO INSTRUCTION SHOULD BE GIVEN
Comments
Title 12 O.S. 2011 § 577.4 (Laws 2011, c. 16, §
1, eff. Nov. 1, 2011), reads as follows:
Tax Consequences of Award for Damages
in Personal Injury and Wrongful Death
Actions
The Oklahoma Uniform Jury Instructions
(OUJI) applicable in a civil case shall
include an instruction notifying the jury
that no part of an award for damages for
personal injury or wrongful death is subject to federal or state income tax. Any
amount that the jury determines to be
proper compensation for personal injury or
wrongful death should not be increased or
decreased by any consideration for income
taxes. In order to be admitted at trial, any
exhibit relating to damage awards shall
reflect accurate tax ramifications.
In Missouri-K. T. R. R. v. Miller, 1971 OK 68
¶ 38, 486 P.2d 630, 636, the Oklahoma
Supreme Court ruled that the income tax
consequences of a personal injury award
are not a proper consideration for the jury.
Instruction No. 5.9
EXEMPLARY OR PUNITIVE DAMAGESSECOND STAGE
Ladies and Gentlemen of the jury, you have
found in favor of the plaintiff and granted
him/her actual damages, and you have also
found by a separate verdict that the defendant
(acted with reckless disregard of the rights of
others) (and/or) (acted intentionally and with
malice towards others).
You may now, in addition to actual damages,
grant the plaintiff punitive damages in such
Vol. 85 — No. 15 — 5/24/2014
sum as you reasonably believe will punish
defendant and be an example to others.
Punitive damages are not to be considered as
compensation to [Plaintiff], but as punishment
to [Defendant], and as an example to others to
deter them from like conduct. The law does not
require you to award punitive damages, and if
you do so, you must use sound reason in setting the amount. You should be aware that the
purpose of punitive damages is to punish and
not destroy a defendant.
[You may consider evidence of actual harm
to others in determining the seriousness of
the hazard to the public and thus whether the
conduct that harmed the plaintiff was particularly reprehensible or bad. Conduct that
risks harm to many may be more reprehensible than conduct that risks harm to only a
few. However, you may not use punitive damages to punish [Defendant] directly on account
of harms that [Defendant] may have caused to
others.]
In determining the amount of punitive damages, you may consider the following factors:
1. The seriousness of the hazard to the public arising from [Defendant]’s misconduct;
2. The profitability of the misconduct to
[Defendant];
3. How long the conduct lasted and whether it is likely to continue;
4. Whether there were attempts to conceal
the misconduct;
5. How aware [Defendant] was of the conduct and its consequences and how aware
[Defendant] was of the hazard and of its
excessiveness;
6. The attitude and conduct of [Defendant]
upon finding out about the misconduct/
hazard;
7. The financial condition of [Defendant];
8. (If the defendant is a corporation or
other entity) The number and level of
employees involved in causing or concealing the misconduct.
In no event should the punitive damages
exceed the greater of: (Select One)
[$100,000.00 or the amount of actual damages
you have previously awarded].
OR
1173
[$500,000.00, or twice the amount of actual
damages you have previously awarded, or the
increased financial benefit derived by the
defendant as a direct result of the conduct
causing the injury to the plaintiff].
Notes on Use
This Instruction is based on Okla. Stat.
tit. 23, § 9.1 (C)(2)(2001) 23 O.S. 2011 § 9.1.
The Verdict Forms in Instruction Nos. 5.10
and 5.11 should accompany this Instruction. The bracketed paragraph of this
Instruction that comes before the list of factors for punitive damages is based on the
United States Supreme Court’s decision in
Phillip Morris USA v. Williams, 127 S.Ct.
1057 549 U.S. 346 (2007). It should be given
upon request of a party if there is a significant risk of a misunderstanding by the jury
that it should impose punitive damages for
harm to nonparties, either because of the
evidence presented at trial or argument of
counsel. Id. at 356-357. The Supreme Court’s
opinion stated that “conduct that risks
harm to many is likely more reprehensible.”
The Committee discussed the use of “may
be” rather than “is likely,” and decided that
the “may be” language was more appropriate for jury instruction, because reprehensibility is a jury issue.
PREFACE TO THE COMPARATIVE
NEGLIGENCE INSTRUCTIONS
The following uniform instructions reflect
the status of the comparative negligence law as
of November 1, 2004. This area of the law, in
particular, has been the subject of a number of
recent developments and may be subject to
additional changes in the future. Accordingly,
this preface is designed to provide a brief overview of the basic stages of the development of
comparative negligence law in Oklahoma.
1. From statehood until 1973 the Doctrine of
Contributory Negligence controlled in Oklahoma. That doctrine provided that any negligence on the part of the plaintiff which contributed to his injuries operated as a complete
bar to his recovery from any other negligent
parties.
2. The Oklahoma legislature replaced the
contributory negligence doctrine in 1973 by
adoption of a new comparative negligence
statute.1 Under the comparative negligence
statute a plaintiff was no longer completely
barred from recovery if his negligence was
1174
found to be less than fifty percent of the negligence causing his injuries.2
3. In Laubach v. Morgan, 1978 OK 5, ¶¶ 13-14,
588 P.2d 1071, 1074, the Oklahoma Supreme
Court abolished the joint and several liability
rule in multiple tortfeasor situations and adopted in its stead a rule of several liability only.
Under Laubach, each defendant’s liability to the
plaintiff is limited to that amount which his
proportionate percentage of negligence bears
to the plaintiff’s total damages.
4. The Oklahoma legislature enacted in 1978
a statute providing for contribution among
joint tortfeasors.3 Prior to this legislation, Oklahoma did not afford to any joint tortfeasor the
right of recovery against another joint tortfeasor when the first joint tortfeasor was required
to pay more than his pro rata share of plaintiff’s damages.
5. Boyles v. Oklahoma Natural Gas. Co., 1980
OK 163, 619 P.2d 613, was a negligence action
brought against multiple defendants, but not
involving an allegation of contributory negligence on the part of the plaintiff. On appeal it
was urged that the trial court erred in refusing
to instruct the jury to apportion the several
defendants’ liability under the rule of Laubach.
The Oklahoma Supreme Court responded to
that contention by stating:
There is absolutely nothing in Laubach to
negate the continued force of the common
law rule of joint and several liability in
those negligent torts which fall completely
outside the purview of our comparative
negligence legislation.
1980 OK 163, ¶ 10, 619 P.2d at 616. The Court in
Boyles made clear that it intended to abolish the
joint and several liability rule only in comparative negligence actions, and not other negligent
torts.
6. In 2004, the Oklahoma Legislature adopted
23 O.S. § 15, which provides for several liability
in all actions based on fault and not arising out
of contract, except that a defendant is subject to
joint and several liability if that defendant’s
percentage of negligence is greater than 50%.
The statute does not apply, however, to actions
brought by the state or a political subdivision
of the state. Also, the statute does not apply if
the plaintiff’s percentage of negligence is 0%.
Therefore, if the plaintiff’s percentage of negligence is 0%, then Boyles v. Oklahoma Natural
Vol. 85 — No. 15 — 5/24/2014
Gas. Co., 1980 OK 163, 619 P.2d 613, would still
apply.
1. 23 O.S.1991 § 13. Comparative negligence is a statutory substitute for the common-law concept of contributory negligence to which
reference is made in Okla. Const. art. 23, § 6. The concept calls for a
comparison of Plaintiffs fault vis-a-vis that of the “other side” (defendant or defendants). Comparative negligence does not mean comparing or apportioning the negligence among multiple defendants.
2. In 1979 the Comparative Negligence Act was amended to allow
a plaintiff to recover if his negligence was fifty percent or less of the
negligence causing his injuries.
3. 12 O.S.1991 § 832.
Instruction 9.24
BLUE VERDICT FORM, FOR PLAINTIFFMULTIPLE DEFENDANTS - DIRECTIONS
If you find that the occurrence with which
this lawsuit is concerned was directly caused
by the negligence of one or more of the Defendants and not by any contributory negligence
on the part of [Plaintiff], then you shall use the
Blue Verdict Form and find in favor of [Plaintiff] against one or more of the Defendants. If
you so find, [Plaintiff] is entitled to recover the
full amount of any damages which you may
find Plaintiff has sustained as a result of the
occurrence.
Comments
See Comments to Instruction No. 9.23. This
Instruction should be used only if the
action accrued before November 1, 2011, or
was brought by or on behalf of the State of
Oklahoma. See 23 O.S.2011, § 15. Instruction 9.33 or 9.34 should be used instead of
this Instruction for all other actions.
BLUE VERDICT FORM, FOR PLAINTIFF;
NON-PARTY INVOLVED - DIRECTIONS
If you find that the occurrence with which
this lawsuit is concerned was directly caused
by the negligence of [Defendant], or was
directly caused by the negligence of both
[Defendant] and [Name of Non-Party], and
not by any contributory negligence on the part
of [Plaintiff], then you shall use the Blue Verdict Form and find in favor of [Plaintiff]. If you
so find, [Plaintiff] is entitled to recover the full
amount of any damages which you may find
[Plaintiff] has sustained as a result of the
occurrence.
Comments
See Comments to Instruction No. 9.23. This
Instruction should be used only if the action
accrued before November 1, 2011, or was
Vol. 85 — No. 15 — 5/24/2014
brought by or on behalf of the State of Oklahoma. See 23 O.S. 2011, § 15. Instruction 9.36
should be used instead of this Instruction for
all other actions.
WHITE VERDICT FORM, COMPARATIVE,
TWO DEFENDANTS - DIRECTIONS
If you find that the occurrence was directly
caused by the negligence of either or both of
[names of the Defendants] and the contributory
negligence of [Plaintiff], then you shall use the
White Verdict Form and you must determine the
percentage of each party’s negligence.
If you find that [Plaintiff] was negligent, this
This White Verdict Form requires that you fill
in some percentage of negligence for [him/her
Plaintiff], if you find that [Plaintiff] was contributorily negligent, and then requires that
you fill in some percentage of negligence for
either or both Defendants, if you find that
either or both of them were negligent. These
figures must total one hundred percent (100%),
and may range from 0% to 100%.
If the figures you fill in as the percentage of
negligence of [Plaintiff] is greater than the
combined total of the figures you insert as the
percentage of negligence of [names of the
Defendants], then [Plaintiff] is not entitled to
recover any damages. In this event, you need
not fill in the space provided for the amount of
Plaintiff’s damages, and you should sign and
return the verdict as explained later in these
instructions.
If, on the other hand, the figure you fill in as
the percentage of negligence of [Plaintiff] is
equal to or smaller than the combined total of
the figures you insert as the percentages of
negligence of either or both of the Defendants,
then you shall proceed, as the verdict form
directs, to fill in the total amount of damages
which you find were sustained by [Plaintiff].
As the verdict form advises, in determining
this damages figure, you should complete
completely disregard the respective percentages of negligence which you have fixed for
the parties.
You are instructed that if you use the White
Verdict Form, whatever dollar amount you
insert as the damages sustained by [Plaintiff]
will be reduced by the Court by that percentage of negligence which you have attached to
[him/her] and that the amount of damages for
which each of the Defendants will be liable will
1175
be limited to that percentage of negligence
which you have attached to each of them.
Notes on Use
This Instruction should be used for civil
actions accruing after November 1, 2011.
Comments
This Instruction assumes that the
“amount of damages allocated to that tortfeasor” in 23 O.S. § 15 refers to the percentage of negligence determined by the jury.
MULTIPLE DEFENDANTS - DIRECTIONS
caused by the negligence of any or all of [names
of the Defendants], and the contributory negligence of [Plaintiff], then you shall use the White
Verdict Form and you must determine the percentage of each party’s negligence.
in some percentage of negligence for [Plaintiff], if you find that [Plaintiff] was contributorily negligent, and then requires that you fill in
some percentage of negligence for all of the
Defendants, if you find that any or all of them
were negligent. These figures must total one
hundred percent (100%), and may range from
0% to 100%.
If the figures you fill in as the percentage of
percentages of negligence of the Defendants,
then [Plaintiff] is not entitled to recover any
damages. In this event, you need not fill in the
space provided for the amount of Plaintiff’s
damages, and you should sign and return the
verdict as explained later in these instructions.
negligence of the Defendants, then you shall
proceed, as the verdict form directs, to fill in
the total amount of damages which you find
were sustained by [Plaintiff]. As the verdict
form advises, in determining this damages figure, you should completely disregard the
respective percentages of negligence which
you have fixed for the parties.
1176
will be reduced by the Court by that percentage of negligence which you have attached to
[him/her] and that the amount of damages for
which each of the Defendants will be liable will
be limited to that percentage of negligence
which you have attached to each of them.
NON-PARTY INVOLVED - DIRECTIONS
caused by the negligence of either or both
[Defendant] and [name of the non-party], and
the contributory negligence of [Plaintiff], then
you shall use the White Verdict Form and you
must determine the percentage of each person’s negligence.
in some percentage of negligence for the Plaintiff, if you find that [Plaintiff] was contributorily negligent, and then requires that you fill in
some percentage of negligence for either or
both the Defendant and the non-party. These
figures must total one hundred percent (100%),
and may range from 0% to 100%.
If the figure you fill in as the percentage of
percentages of negligence of [Defendant] and
[name of the non-party], then [Plaintiff] is not
entitled to recover any damages. In this event,
you need not fill in the space provided for the
amount of Plaintiff’s damages, and you should
sign and return the verdict as explained later in
these instructions.
negligence of either or both [Defendant] and
[name of the non-party], then you shall proceed, as the verdict form directs, to fill in the
total amount of damages which you find were
sustained by [Plaintiff]. As the verdict form
advises, in determining this damages figure,
you should completely disregard the respective percentages of negligence which you have
fixed for the Plaintiff, the Defendant, and the
non-party.
Vol. 85 — No. 15 — 5/24/2014
will be reduced by the Court by the sum of the
percentages of negligence which you have
attached to [Plaintiff] and [name of the nonparty].
False Representation —
Elements of Liability
In order for [Plaintiff] to recover from
[Defendant] on [his/her] claim of deceit, you
must find that all of the following have been
established by clear and convincing evidence:
1. That [Defendant] made a material representation;
2. That it was false;
3. That [Defendant] made it when [he/she]
knew it was false, or made it as a positive
assertion recklessly, without any knowledge of
its truth;
4. That [Defendant] made it with the intention
that it should be acted upon by [Plaintiff];
5. That [Plaintiff] acted in reliance upon it;
and
6. That [Plaintiff] thereby suffered injury.
Notes on Use
This instruction should be accompanied
by Instruction No. 3.2, supra, which has a
definition of clear and convincing evidence.
Comments
D & H Co. Inc. v. Schultz, 579 P.2d 821,
824 (Okla.1978); Steiger v. Commerce Acceptance of Oklahoma City, Inc., 455 P.2d 81, 86
(Okla.1969) (all elements must be alleged
and proved); Ramsey v. Fowler, 308 P.2d 654,
656 (Okla.1957); 76 O.S. 1991 2011, § 3. The
Oklahoma Supreme Court set forth the elements of a claim for fraud in Rogers v.
Meiser, 2003 OK 6, ¶ 17, 68 P.3d 967, 977, as
follows:
The elements of common law fraud are:
1) a false material misrepresentation, 2)
made as a positive assertion which is
either known to be false, or made recklessly without knowledge of the truth, 3)
with the intention that it be acted upon,
and 4) which is relied on by the other
party to his/her own detriment. Gay v.
Vol. 85 — No. 15 — 5/24/2014
Akin, 1988 OK 150, ¶ 7, 766 P.2d 985,989;
D & H Co., Inc. v. Shultz, 1978 OK 71, ¶ 11,
579 P.2d 821, 824; Ramsey v. Fowler, 1957
OK 61, 308 P.2d 654, Syllabus by the Court.
Fraud is never presumed and it must be
proved by clear and convincing evidence.
Brown v. Founders Bank and Trust Co., 1994
OK 130, ¶ 12, n.17, 890 P.2d 855, 862.
Nondisclosure Or Concealment —
Elements of Liability
In order for [Plaintiff] to recover from
[Defendant] on [his/her] claim of deceit, you
must find that all of the following have been
established by clear and convincing evidence:
1. That [Defendant] concealed or failed to
disclose a past or present fact which he had a
duty to disclose;
2. That the fact was material;
disclose it with the intent of creating a false
impression of the actual facts in the mind of
[Plaintiff];
disclose it with the intention that it should be
acted upon by [Plaintiff];
5. That [Plaintiff] acted in reliance upon it;
and
6. That [Plaintiff] thereby suffered injury.
Notes on Use
This instruction should be accompanied
by Instruction No. 3.2, supra, which has a
definition of clear and convincing evidence.
Comments
Hubbard v. Bryson, 1970 OK 140, ¶ 26, 474
P.2d 407, 410 (Okla. 1970 “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.”). See also United States v. Curtis, 537
F.2d 1091, 1097 (10th Cir. (“[F]raudulent
representations may be effected by deceitful statements or half-truths of the concealment of material facts.”), cert. denied, 429
U.S. 962 (1976).
1177
EMPLOYMENT AT WILL
The general rule is that an employment contract is terminable at will, which means that
either the employer or the employee has the
right to terminate the employment at any time
for any reason or no reason at all without liability to the other for doing so.
Notes on Use
This Instruction should be used to introduce the Instructions in Part A of this
Chapter dealing , which deal with wrongful discharge in violation of public policy
and breach of employment contracts.
Comments
This Instruction is a statement of the
traditional employment at will doctrine.
See Burk v. K-Mart Corp., 1989 OK 22, ¶ 5,
770 P.2d 24, 26 (Okla. 1989) (“This Court
has long recognized the basic principle that
an employment contract of indefinite duration may be terminated without cause at
any time without incurring liability for
breach of contract.”). The Oklahoma Supreme Court noted in the Burk case that the
employment at will doctrine is subject to
various statutory exceptions as well as a
case law exception based on public policy.
Id. ¶¶ 6, 17, 19, 770 P.2d at 26, 28, 29 at
26-28. In addition, the Supreme Court has
stated that the parties to an employment
contract may restrict the employer’s power
to discharge an employee at will through
either their express or implied agreement.
Hinson v. Cameron, 1987 OK 49, ¶ 14, 742
P.2d 549, 554 (Okla. 1987). The Oklahoma
Supreme Court stated in the Hinson case
that various factors, including statements
in employer handbooks and an employee’s
detrimental reliance on the employer’s
past practices, may be considered to determine whether an implied contract right to
job security exists. Id. ¶ 14, 742 P.2d at 55455. It has also held, though, that an implied
obligation of good faith and fair dealing is
not applicable to the termination of employment contracts. 1989 OK 22, ¶ 22, 770 P.2d
at 29. The following Instructions are concerned with these exceptions to the employment at will doctrine.
1178
Wrongful Discharge - Public Policy
Exception - Refusal to Violate Public Policy
There is an exception to the general rule that
an employment contract is terminable at will, if
an employee is discharged for refusing to act in
violation of an established and well-defined
public policy. [Plaintiff] claims to have been
wrongfully discharged by [Defendant] in retaliation for refusing to [set out the nature of the
act that the plaintiff claims violated public
policy]. In order to prevail on the claim of
wrongful discharge in violation of public policy, [Plaintiff] must show by the weight of the
evidence that:
1. [Plaintiff] was discharged from [his/her]
employment with [Employer Defendant];
2. During the course of [Plaintiff]’s employment with Employer [Defendant], [Plaintiff]
refused to [set out the nature of the act that the
plaintiff claims violated public policy];
2.3. A significant factor in the decision to discharge [Plaintiff] was retaliation for Plaintiff’s
refusal to [set out the nature of the act that the
plaintiff claims violated public policy]; and
3. 4. [Plaintiff] was damaged as a result of
the discharge.
Notes on Use
This Instruction should be used with
Instruction Nos. 21.1, 21.5, 21.6, 21.9, and
21.11 in cases where the plaintiff is relying
on the public policy exception to the
employment at will doctrine and claiming
that the discharge was in retaliation for
plaintiff’s refusal to act in violation of an
established and well-defined public policy.
For an Instruction where the plaintiff’s
claim is that the discharge was in retaliation for plaintiff’s performing an act consistent with a clear and compelling public
policy. See Instruction No. 21.3, infra. For an
Instruction where the plaintiffs claim is
that the discharge was on account of unlawful employment discrimination, see Instruction No. 21.4, infra.
Comments
This Instruction is based on the public
policy exception to the employment at will
doctrine that was recognized in Vannerson
v. Board of Regents of the Univ of Oklahoma,
1989 OK 125, 784 P.2d 1053 (Okla. 1989);
Vol. 85 — No. 15 — 5/24/2014
Burk v. K-Mart Corp., 1989 OK 22, ¶¶ 17-20,
770 P.2d 24, 28-29 (Okla. 1989); and Hinson
v. Cameron, 1987 OK 49, ¶ 10, 742 P.2d 549,
552-53 (Okla. 1987).
The Instruction covers those cases where
the plaintiff claims the discharge was in
retaliation for the plaintiff’s refusal to act in
violation of a public policy. Accordingly, it
does not include bad faith or malice as a
separate element. See generally Gilmore v.
Enogex, Inc., 1994 OK 76, ¶ 11, 878 P.2d 360,
364 (Okla. 1994) (public policy exception
requires that the employer was motivated
by either bad faith, malice, or retaliation).
Exception — Consistant Consistent With
Public Policy
an employee is discharged for performing an
act consistent with a clear and compelling public policy. [Plaintiff] claims to have been wrongfully discharged by [Defendant] in retaliation
for [set out the nature of the act that the plaintiff claims is protected]. In order to prevail on
the claim of wrongful discharge in violation of
public policy, [Plaintiff] must show by the
weight of the evidence that:
employment with [Defendant];
2. During the course of [Plaintiff]’s employment with Defendant, [Plaintiff] [set out the
nature of the act that the plaintiff claims is
protected].
3. A significant factor in the decision to discharge [Plaintiff] was retaliation for Plaintiff’s
[set out the nature of the act that the plaintiff
claims is protected], and
4. [Plaintiff] was damaged as a result of the
discharge.
Notes on Use
Instruction Nos. 21.1, 21.6, 21.9, and 21.11
in cases where the plaintiff is relying on the
public policy exception to the employment
at will doctrine and claiming that the discharge was in retaliation for plaintiff’s performing an act consistent with a clear and
compelling public policy. For an Instruction
where the plaintiff’s claim is that the disVol. 85 — No. 15 — 5/24/2014
charge was in retaliation for plaintiff’s refusal to act in violation of an established and
well-defined public policy, see Instruction
No. 21.2, supra. For an Instruction where
the plaintiffs claim is that the discharge
was on account of employment discrimination, see Instruction No. 21.4, infra.
Exception - Employment Discrimination
an employee is discharged in violation of the
public policy against unlawful employment
discrimination. [Plaintiff] claims to have been
wrongfully discharged by [Defendant] because
of [his/her] [set out Plaintiffs protected status]. In order to prevail on the claim of wrongful discharge in violation of public policy,
[Plaintiff] must show by the weight of the evidence that:
employment with [Employer];
2. [Plaintiff] is [set out Plaintiffs protected
status].
3. A significant factor in [Defendant]’s discharge of [Plaintiff] was unlawful employment discrimination against [him/her] because
of [his/her] [set out Plaintiffs protected status]; and
discharge.
Notes on Use
This Instruction should only be given if
a cause of action accrued prior to the effective date of 25 O.S. Supp. 2011 § 1350 (eff.
November 1, 2011).
Instruction Nos. 21.1, 21.7, 21.9, and 21.11
in cases where the plaintiff is relying on the
public policy exception to the employment
at will doctrine and claiming that the discharge was on account of employment
discrimination. For an Instruction where the
plaintiffs claim is that the discharge was in
retaliation for plaintiffs refusal to act in violation of an established and well-defined
public policy, see Instruction No. 21.2, supra.
For an Instruction where the plaintiffs claim
is that the discharge was in retaliation for
plaintiffs performing an act consistent with
1179
a clear and compelling public policy, see
Instruction No. 21.3, supra.
Comments
In Tate v. Browning-Ferris, Inc., 1992 OK
72 , ¶ 10, 833 P.2d 1218, 1225, the Oklahoma
Supreme Court held that the public policy
exception was applicable to a racially motivated discharge or one in retaliation for an
employee’s filing a racial discrimination
complaint. Later, in Kruchowski v. The Weyerhauser Co., 2008 OK 105, ¶ 23, 202 P.3d
144, and Shirazi v. Childtime Learning Center,
2009 OK 13, ¶ 12, 204 P.3d 75, the Supreme
Court decided that the public policy exception also applied to victims of unlawful
discrimination, because victims of all forms
of employment discrimination, including
race, color, religion, sex, national origin,
age and handicap, must receive evenhanded treatment under art. 5, § 46 of the Oklahoma Constitution.
Employee Discharged For Refusing to
Violate Public Policy
In order to win on the claim of wrongful discharge [Plaintiff] must show that [Defendant]
required [him/her] to commit an act that was
contrary to a clear statement of public policy of
Oklahoma [or the United States]. You are
instructed that the following acts are forbidden
by law [or the Constitution or a statute]:
Notes on Use
The trial court should inform the jury of
the nature of the activities that are against
public policy so that the jury can determine
whether the defendant instructed or
required the plaintiff to perform any of
them as part of the employment.
Comments
The trial court has the responsibility for
determining public policy, and “it is then
the jury’s duty to examine the facts and
decide if the public policy was violated.”
Pearson v. Hope Lumber & Supply Co., Inc.,
1991 OK 112, ¶ 4, 820 P.2d 443, 444 (Okla.
1991).
Employee Discharged For Performing Act
Consistent With Public Policy
1180
In order to win on the claim of wrongful discharge [Plaintiff] must show that [Defendant]
discharged [him/her] for performing an act
that was consistent with a clear and compelling
public policy of Oklahoma [or the United
States]. You are instructed that [describe the
act] is such an act [or the following are such
acts:] ]:.
Notes on Use
These Instructions may be adapted for
use in retaliatory discharge cases under 85
O.S. 1991 § 5. In such cases, the last sentence of this Instruction should be modified to read: “You are instructed that [filing
a claim for Workers’ Compensation in
good faith, or retaining a lawyer in connection with a claim for Workers’ Compensation, or testifying in a Workers’ Compensation case] is such an act.”
Comments
The Oklahoma Supreme Court held in
Smith v. Farmers Coop. Ass’n of Butler, 1992
OK 11, ¶¶ 13-15, 825 P.2d 1323, 1326-27
(Okla. 1992), that the public policy exception applied to the discharge of an at will
employee, who was also a city mayor, in
retaliation for his voting to deny his
employer’s request for a zoning variance.
Similarly, the Supreme Court determined
in Groce v. Foster, 1994 OK 88 ¶ 1, 880 P.2d
902, 903 (Okla. 1994), that an employee’s
right to file a negligence action against a
third party employee for on the job injuries
was protected under the public policy
exception. In contrast, in Vannerson v. Board
of Regents of the Univ. of Oklahoma, 1989 OK
12, ¶ 10, 784 P.2d 1053, 1055 (Okla. 1989),
the Supreme Court held that a violation of
a University of Oklahoma internal policy
on maintaining accurate records did not
“rise to the level of a constitutional, statutory or decisional statement of public policy of the State of Oklahoma.” Accordingly,
it reversed a plaintiff’s judgment on a
wrongful discharge claim that was based
on the public policy exception. In addition,
in Gilmore v. Enogex, Inc., 1994 OK 76, ¶¶
14, 17, 21, 878 P.2d 360, 368 365-68 (Okla.
1994), the Supreme Court decided that an
employee’s discharge for refusal to submit
to a random drug test did not come within
the public policy exception. See also McKennon v. Nashville Banner Publishing Co.,
115 S.Ct. 879, 885-86 513 U.S. 352, 360-61
Vol. 85 — No. 15 — 5/24/2014
(1995) (after-acquired evidence of employee wrongdoing is not complete bar to
recovery, but it may be taken into account
in determining the appropriate remedy);
Mosley v. Truckstops Corp. of Am., 1993 OK
79, ¶ 21, 891 P.2d 577, 585 (Okla. 1993) (“A
jury instruction which relieves an employer of liability for terminating an employee
engaged in misconduct discovered after
the employee was terminated is inopposite
[sic] to Oklahoma law and giving the
instruction is reversible error. “) (emphasis
in original).
Employee Discharged Because Of
Discrimination
In order to prevail on the claim of wrongful
discharge [Plaintiff] must show that [Defendant] discharged [him/her] because of [his/her]
[set out the protected status]. You are instructed
that under [federal and/or Oklahoma] law an
employee may not be discharged because of
[his/her] [set out the protected status].
Notes on Use
This Instruction should only be given if
a cause of action accrued prior to the effective date of 25 O.S. Supp. 2011 § 1350.
Included among the typical categories of
protected status under federal and Oklahoma law are race, color, national origin,
religion, gender, disability, and age. Additional categories may be protected under
constitutional, statutory, and decisional
law. The judge has the responsibility of
determining whether the plaintiff has a
protected status.
Comments
Tate v. Browning-Ferris, Inc ., 1992 OK 72 , ¶
10, 833 P.2d 1218, 1225, that the public policy exception was applicable to a racially
motivated discharge. Later, in Kruchowski v.
The Weyerhauser Co., 2008 OK 105, ¶ 23, 202
P.3d 144, and Shirazi v. Childtime Learning
Center, 2009 OK 13, ¶ 12, 204 P.3d 75, the
Supreme Court decided that the public
policy exception also applied to victims of
unlawful discrimination, because victims
of all forms of employment discrimination
must receive evenhanded treatment under
art. 5, § 46 of the Oklahoma Constitution.
Vol. 85 — No. 15 — 5/24/2014
Constructive Discharge
An employer is considered to have discharged an employee if the employer intentionally made or allowed either knew or should
have known that the employee’s working conditions to become were so intolerable that a
reasonable person in the employee’s situation
would feel that [he/she] had no choice but to
quit. You should consider whether the employer physically threatened or humiliated the
employee, how often the employer did so, and
whether the employer unreasonably interfered
with the employee’s work performance.
Notes on Use
This Instruction is intended for cases
where there is a jury issue concerning constructive discharge of an employee.
Comments
This Instruction is derived from the test
for constructive discharge set out in Collier
v. Insignia Financial Group, 1999 OK 49, ¶
10, 981 P.2d 321, 324 one on constructive
discharge that the Oklahoma Supreme
Court approved for Workers’ Compensation retaliatory discharge cases under Okla.
Stat. tit. 85, 5 (1991), in Wilson v. HessSweitzer & Brant, Inc., 864 P.2d 1279, 128283 (Okla. 1993). The Supreme Court has not
yet ruled whether constructive discharge is
applicable to public policy tort cases.
Significant Factor For Discharge
The evidence may show that [Plaintiff] was
discharged for more than one reason. Although
[Plaintiff] need not prove that [set out what
plaintiff claims violated public policy] was
the only reason [he/she] was discharged,
[Plaintiff] must prove that the [set out what
plaintiff claims violated public policy] was a
significant factor in the decision of [Defendant] to discharge [him/her]. In order for you
to decide that [set out what plaintiff claims
violated public policy] was a significant factor,
you must determine whether [Defendant]
would have discharged [Plaintiff] even if
[Plaintiff] had [not] [set out the act that Plaintiff either performed or refused to perform]
[or was not a (set out the protected status)],
and everything else remained the same.
1181
Notes on Use
This Instruction should be given only if
there is evidence offered of more than one
reason for the employee’s discharge, and
one reason was contrary to public policy
and the other was not.
Comments
This Instruction is drafted in light of the
decision of the Tenth Circuit Court of
Appeals in White v. American Airlines, Inc.,
915 F.2d 1414 (10th Cir. 1990). Applying
Oklahoma law, the Tenth Circuit reversed a
judgment for an employee on a jury verdict
in a wrongful discharge case because the
trial court failed to instruct the jury that the
employer should be liable only if the discharge of the employee was “significantly
motivated” by the employee’s refusal to
commit perjury. 915 F.2d at 1421. See also
Estrada v. Port City Properties, Inc., 2011 OK
30, n. 20, 258 P.3d 495, 502 (“[I]f retaliation
motivations comprise a significant factor in
an employer’s decision to terminate an
employee, even though other legitimate
reasons exist to justify the termination, the
discharge violated the intent of [85 O.S.
2001,] § 5.”); Vasek v. Board of County Commissioners, 2008 OK 35, ¶ 14, 186 P.3d 928,
932 (wrongful discharge claim must allege
discharge of employee “in significant part
for a reason that violates an Oklahoma
public policy goal”). The last sentence of
the Instruction is based on Judge Easterbrook’s suggested instruction in Gehring v.
Case Corp., 43 F.3d 340, 344 (7th Cir. 1994).
Contractual Limitations On Discharge
One of the exceptions to the general rule that
an employment contract is terminable at will
arises when an employer and an employee
agree that an employer can only discharge an
employee [Specify Substantive Restrictions
on Discharge, e.g., (for certain reasons), (under
certain conditions), or (after a certain amount
of time)].
Sometimes this agreement is expressed
directly in the form of a written contract which
specifically states when, how, or why an
employee may be discharged.
Other times, this agreement may be implied
from things the employer has said to the
employee, [orally or in writing], such as [state1182
ments in an employer’s handbook], [statements in an employer’s policy manuals], [oral
promises made by the employer to the
employee regarding the employment relationship], [the employer’s past practices in
dealing with employees].
In this case, [Plaintiff] has alleged that [he/
she] had an [express/implied] agreement, or
contract, with [his/her] employer that [he/she]
would not be discharged except for [Specify
Reasons, Conditions, Time Limitations, etc.]
and that the [Defendant] breached this agreement, or contract, when [Defendant] discharged [him/her].
In order for [Plaintiff] to prevail, [he/she]
must prove that:
1. [Defendant] made an offer to [Plaintiff] to
accept [or continue] [his/her] employment;
2. [Defendant]’s offer included either express
or implied terms that [Plaintiff] would be discharged only [Specify Reasons, Conditions,
Time Limitations, etc.];
3. These terms were definite and of the sort
that a reasonable person would justifiably rely
upon;
4. [Plaintiff] relied upon these terms when
[he/she] accepted the offer by starting to work
for [Defendant] [or continuing to work for]
[Defendant] if the offer was made during the
course of [Plaintiff]’s employment with
[Defendant];
5. [Defendant] discharged [Plaintiff] [(for a
reason(s) other than those)/(under conditions
other than those)/(prior to the time)] contained in the express or implied terms agreed
upon by the [Plaintiff] and the [Defendant];
and
6. [Plaintiff] suffered damages as a direct
result of the discharge.
Notes on Use
This Instruction should be used along
with Instruction Nos. 21.1 and 21.12 in cases
where the plaintiff claims that a contract
with the employer limits the employer’s
power to discharge the employee at will.
Comments
The Oklahoma Supreme Court recognized in Hinson v. Cameron, 1987 OK 49, ¶
14, 742 P.2d 549, 554 (Okla. 1987), that
implied contractual provisions may restrict
Vol. 85 — No. 15 — 5/24/2014
an employer’s freedom to discharge an at
will employee. The implied contractual
provisions may arise from a variety of
sources, including employee manuals, oral
assurances, and company policies, which
may be construed as offers for unilateral
contracts that are accepted by employees
either entering employment or continuing
employment. See generally Johnson v. Nasca,
1990 OK CIV APP 87, ¶ 6, 802 P.2d 1294,
1296 (Okla. Ct. App. 1990) (“[A] handbook
alone may constitute an offer of a unilateral
contract.”); Langdon v. Saga Corp., 1976 OK
CIV APP 65, ¶ 10, 569 P.2d 524, 528 (Okla.
Ct. App. 1976) (“We thus conceive personnel policies extending benefits as unilateral
offers which are accepted by continued
performance.”); Jackson v. Integra, Inc., 952
F.2d 1260, 1261 (10th Cir. 1991) (concluding
that Oklahoma law would allow an
employee manual to create an implied contract in appropriate circumstances); Carnes v.
Parker, 922 F.2d 1506, 1510-11 (10th Cir. 1991)
(under Oklahoma law, employment at will
relationship was altered by personnel manual); Williams v. Maremont Corp., 875 F.2d 1476,
1484 (10th Cir. 1989) (in order for statements
in employee handbook to alter employment
at will contract there must be a showing that
they induced acceptance or continuation of
employment).
The Oklahoma Supreme Court has also
held that for an employer’s promises to
restrict its power to discharge an employee,
they must be in definite terms, rather than
vague assurances. Hayes v. Eateries, Inc.,
1995 OK 108, ¶ 12, 905 P.2d 778, 783 (Okla.
1995); Gilmore v. Enogex, Inc., 1994 OK 76, ¶
25, 878 P.2d 360, 368 (Okla. 1994). See also
Avey v. Hillcrest Medical Ctr., 1991 OK CIV
APP 48, ¶ 10, 815 P.2d 1215, 1217 (Okla. Ct.
App. 1991) (neither employee handbook
nor policy and procedure manual gave
assurances of job security to at will employees); Dupree v. United Parcel Serv., Inc., 956
F.2d 219, 222-23 (10th Cir. 1992) (statements
in policy manuals and oral statements were
too vague to create an implied contract). In
addition, an employee’s reliance on the
employer’s promises “must be reasonable
under an objective standard, not merely the
subjective belief of the employee.” Hayes,
supra, 1995 OK 108, ¶ 17, 905 P.2d at 784.
Vol. 85 — No. 15 — 5/24/2014
Wrongful Discharge - Damages
If you find in favor of [Plaintiff] on the issue
of liability, then you must determine the amount
that will reasonably and fairly compensate
[him/her] for the damages [he/she] suffered as
a direct result of the discharge. In fixing the
amount of damages, you may consider the following elements:
A. The difference between the amount that
[Plaintiff] was entitled to under the employment contract with [Defendant] and what
[Plaintiff] has earned since the discharge [or
could have earned using reasonable diligence
in finding employment of comparable quality
as the employment with [Defendant]]; [and]
[B. The loss of earnings in the future that
[Plaintiff] would be reasonably likely to suffer
as a direct result of the discharge, if [he/she]
used reasonable diligence in finding employment of comparable quality as the employment
with [Defendant];] and
C. Any physical or mental distress or anguish
that [Plaintiff] suffered as a result of the discharge.
Notes on Use
This Instruction should be used if the
plaintiff is seeking recovery in tort under
the public policy exception to the employment at will doctrine (Instruction Nos. 21.221.9). Instruction No. 21.12, infra, should be
used if the plaintiff is relying on a breach of
contract theory (Instruction No. 21.10). Paragraph B is bracketed because the Oklahoma
law is unclear whether future earnings are
recoverable under a tort theory.
Comments
Because the Oklahoma Supreme Court
has not yet decided the issue, it is not certain whether future damages are recoverable for wrongful discharge. But cf. Marshall v. TRW, Inc., 900 F.2d 1517, 1522 (10th
Cir. 1990) (future damages could be awarded in lieu of reinstatement under Okla.
Stat. tit. 85, §§ 5-6 (1991) only upon a showing of continuing hostility in the workplace
that would make reinstatement inappropriate). Instruction No. 5.5 should be used
in addition to this Instruction if punitive
damages are sought. In retaliatory discharge cases brought pursuant to 85 O.S.
1183
2011, § 341, Instruction No. 5.5 should be
modified to state that the punitive damages
may not exceed the $100,000. See id. §
341(E). For a discussion of punitive damages in retaliatory discharge cases under 85
O.S. 1991 § 5, see Wilson v. Hess-Sweitzer &
Brant, Inc., 1993 OK 156, ¶¶ 2-12, 864 P.2d
1279, 1280-82. On the issue of the recovery
of damages for mental distress, see Williams
v. ABS Enters, Inc., 1987 OK CIV APP 6, ¶ 7,
734 P.2d 854, 857 (recovery for mental
anguish allowed when employee was discharged for filing a Workers’ Compensation claim).
Breach Of Employment Contract - Damages
of [his/her] damages. This is the amount of
money that is needed to put [him/her] in as
good a position as [he/she] would have been if
the contract had not been breached. In this
case, the amount of damages should be determined as follows:
A. The difference between the amount that
[Plaintiff] was entitled to under the employment contract with [Defendant] and what
[Plaintiff] has earned since the discharge [or
could have earned using reasonable diligence
in finding employment of comparable quality
as the employment with [Defendant]]; [and]
[B. The loss of earnings during the remaining
term of the contract that [Plaintiff] would be
reasonably likely to suffer as a direct result of
the discharge, if [he/she] used reasonable diligence in finding employment of comparable
quality as the employment with [Defendant].]
Notes on Use
This Instruction should be used if the
plaintiff is relying on a breach of contract
theory (Instruction No. 21.10). Instruction
No. 21.11, supra, should be used if the
plaintiff is seeking recovery in tort under
the public policy exception to the employment at will doctrine (Instruction Nos.
21.2-21.9). Paragraph B should be included
only if the term of the contract extended
beyond the date of trial.
Comments
See Seidenbach’s, Inc. v. Williams, 1961 OK
77, ¶ 9, 361 P.2d 185, 187-88 (Okla. 1961) (no
1184
recovery for mental anguish for breach of
contract that did not cause physical injury).
Employment Based Discrimination Elements
[Plaintiff] claims that [Defendant] discriminated against [him/her] because of [his/her]
[set out Plaintiff’s protected status] by [specify adverse employment action such as terminating his/her employment, or failing to hire
or promote him/her]. In order to prevail on the
claim of employment based discrimination,
[Plaintiff] must show by the weight of the evidence that:
1. [Plaintiff] is [set out Plaintiff’s protected
status].
2. [Defendant] discriminated against [him/
her] because of [his/her] [set out Plaintiff’s
protected status] by [specify adverse employment action]; and
discrimination.
Notes on Use
This Instruction should be used in cases
involving claims for employment based
discrimination under 25 O.S.Supp. 2013, §
1350 along with Instruction No. 21.23, infra.
The Statute provides a cause of action for
discrimination arising from an employment related matter based on race, color,
religion, sex, national origin, age, disability,
genetic information with respect to the
employee, or retaliation. If the claim involves retaliation related to employment
discrimination, Instruction No. 21.22, infra,
should be used instead of this Instruction.
Instruction Nos. 21.8 and 21.9 may also be
used as appropriate along with this and
other Instructions dealing with employment based discrimination.
Comments
Prior to 2011, The Oklahoma Supreme
Court recognized common law claims for
wrongful discharge for employment discrimination based on the disparities of
remedies available for employment discrimination for race, color, religion, sex,
national origin, age, and handicap. See Shirazi v. Childtime Learning Center, 2009 OK
13, ¶ 12, 204 P.3d 75, 79; Kruchowski v. The
Weyerhauser Co., 2008 OK 105, ¶ 36, 202
Vol. 85 — No. 15 — 5/24/2014
P.3d 144, 154. In 2011, the Oklahoma Legislature amended Oklahoma’s Anti-Discrimination Act, 25 O.S. 2011 §§ 1101-1901, to
create a statutory cause of action for employment based discrimination, and abolished the common law remedies for employment based discrimination. Title 25
O.S. 2013, § 1350 authorizes the filing of a
civil action pursuant to a Notice of a Right
to Sue from the Oklahoma Attorney General’s Office of Civil Rights Enforcement,
and it provides for a jury trial of any facts
in dispute in the action.
The remedies provided by § 1350 are
injunctive relief, backpay, and an additional
amount of backpay as liquidated damages.
Employment Based Discrimination Retaliation
[Plaintiff] claims that [Defendant] discriminated against [him/her] because of [his/her]
[set out the protected activity relating to discrimination that Plaintiff engaged in] by
[specify adverse employment action such as
terminating his/her employment, or failing to
hire or promote him/her]. In order to prevail
on the claim of retaliation, [Plaintiff] must
show by the weight of the evidence that:
1. [Plaintiff] is [set out the protected activity
that Plaintiff engaged in].
2. [Defendant] retaliated against [him/her]
because of [his/her] [set out the protected
activity] by [specify adverse employment
action]; and
retaliation.
Notes on Use
involving claims for retaliation for protected activities involving discrimination
under 25 O.S.Supp. 2013, § 1350 along with
Instruction No. 21.23, infra.
wages and fringe benefits [Plaintiff] would
have earned if [specify adverse employment
action] had not occurred. [The amount of
Plaintiff’s earnings since termination of
employment or amounts earnable with reasonable diligence must be deducted from the
amount of backpay.] In addition, you may also
award an additional amount as liquidated
damages.
Notes on Use
The bracketed word “additional” should
be included in the sentence if the case did
not involve termination of employment.
The third sentence in brackets should be
used if the case involved termination of
employment.
Comments
The remedies available under 25 O.S.
Supp. 2013, § 1350 for employment based
discrimination are injunctive relief, backpay, and an additional amount as liquidated damages. The statute does not specify
how the liquidated damages are to be
determined. In appropriate situations the
trial judge may provide an instruction
which defines liquidated damages and
specifies the manner of calculating liquidated damages. See McDonald v. Corporate
Integris Health, 2014 OK 10, - P.3d - (C.J.
Colbert concurring).
Exemplary or Punitive Damages —
Second Stage
Ladies and Gentlemen of the jury, you have
found in favor of the plaintiff and granted him/
her actual damages, and you have also found
by a separate verdict that the defendant has
(recklessly disregarded its duty to deal fairly
and act in good faith with its insured, [Plaintiff) (and/or) (intentionally and with malice
breached its duty to deal fairly and act in
good faith with its insured, [Plaintiff]).
Employment Based Discrimination Damages
You may now, in addition to actual damages,
grant the plaintiff punitive damages in such
sum as you reasonably believe will punish
defendant and be an example to others.
of backpay to award [Plaintiff] on account of
the [specify adverse employment action]. The
amount of backpay is equal to the [additional]
Punitive damages are not to be considered as
compensation to [Plaintiff], but as punishment
to [Defendant], and as an example to others to
deter them from like conduct. The law does not
require you to award punitive damages, and if
Vol. 85 — No. 15 — 5/24/2014
1185
you do so, you must use sound reason in setting the amount. You should be aware that the
purpose of punitive damages is to punish and
not to destroy a defendant.
[You may consider evidence of actual harm
to others in determining the seriousness of
the hazard to the public, and thus whether
the conduct that harmed the plaintiff was particularly reprehensible or bad. Conduct that
risks harm to many may be more reprehensible than conduct that risks harm to only a
few. However, you may not use punitive damages to punish [Defendant] directly on account
of harms that [Defendant] may have caused to
others.]
In determining the amount of punitive damages, you may consider the following factors:
1. The seriousness of the hazard to the public
arising from [Defendant]’s misconduct;
2. The profitability of the misconduct to
[Defendant];
3. How long the conduct lasted and whether
it is likely to continue;
4. Whether there were attempts to conceal
the misconduct;
5. How aware [Defendant] was of the conduct and its consequences and how aware
[Defendant] was of the hazard and of its excessiveness;
6. The attitude and conduct of [Defendant]
upon finding out about the misconduct/hazard;
7. The financial condition of [Defendant];
8. (If the defendant is a corporation or
other entity) The number and level of employees involved in causing or concealing the misconduct.
In no event should the punitive damages
exceed the greater of: (Select One) [$100,000.00
or the amount of actual damages you have
previously awarded].
OR
[$500,000.00, or twice the amount of actual
damages you have previously awarded, or the
increased financial benefit derived by the
defendant as a direct result of the conduct
causing the injury to the plaintiff and other
persons or entities].
1186
Notes on Use
This instruction is based on Okla. Stat.
Tit. 23, § 9.1 (C)(2) (2011). The Verdict
Forms in Instruction Nos. 5.10 and 5.11,
supra, should accompany this Instruction.
For further discussion, see the Notes on use
to Instruction 5.9, supra.
The last paragraph of this instruction is
to be determined as follows:
If the defendant has been found guilty of
acting with reckless disregard for its duty
to deal fairly and act in good faith with its
insured, then the punitive damages award
should not exceed the greater of $100,000.00
or the amount of actual damages. If the
defendant has been found guilty of acting
intentionally and with malice breached its
duty to deal fairly and to act in good faith
with its insured, the award should not
exceed the greater of $500,000.00, or twice
the amount of actual damages awarded, or
the increased financial benefit derived by
the defendant as a direct result of the conduct causing the injury to the plaintiff and
other persons or entities. If the punitive
damages award is higher than the greater
of $500,000.00 or twice the amount of actual damages, the trial judge is required to
reduce that portion of the punitive damages award that exceeds the greater of
$500,000.00 or twice the amount of actual
damages by the amount the defendant has
previously paid for punitive damages
awarded in Oklahoma state court actions
for the same conduct. Okla. Stat. Tit. 23, §
9.1 [23 - 9.1] (C)(2) (Supp. 1995 2009).
If the trial court has found beyond a reasonable doubt that the defendant acted
intentionally and with malice and engaged
in conduct that was life-threatening to
humans, and also the jury has found that
the defendant acted intentionally and with
malice breached its duty to deal fairly and
act in good faith towards its insured, there
is no limit on the amount of punitive damages and the last paragraph of this instruction should be omitted.
Defamation - Introductory Instruction
This is an action to recover damages for defamation. [Plaintiff] claims that [specify the
facts that the plaintiff alleges constituted the
defamation: e.g., [Defendant] published a
Vol. 85 — No. 15 — 5/24/2014
newspaper article falsely accusing [Plaintiff]
of being a thief.] Specifically, [Plaintiff] claims
that the following statements were defamatory:
[set out statements].
Notes on Use
This Instruction should be used to Introduce the remaining Instructions on defamation in this Chapter.
Defamation - Elements (Public Figure
Plaintiff)
In order to recover for defamation, [Plaintiff]
has the burden of proving the following five
elements by the greater weight of the evidence:
1. The statement exposed [Plaintiff] to public
hatred, contempt, ridicule or disgrace;
2. [Defendant] communicated the statement
to (a person)/persons) other than [Plaintiff];
3. (That person)/(Those persons) reasonably
understood the statement to be about [Plaintiff];
4. The statement was false; however, minor
inaccuracies do not amount to falsity if the
statement is substantially true; and,
5. The statement caused [Plaintiff] to suffer
(a financial loss)/(damage to Plaintiff’s reputation and/or emotional injury).
In addition, [Plaintiff] must prove by clear
and convincing evidence that:
6. [Defendant] either knew the statement
was false or had serious doubt whether the
statement was true or false.
Notes on Use
where the plaintiff is either a public official
or a public figure.
Comments
Libel is defined in 12 O.S. 2011 § 1441 as
follows:
Libel is a false or malicious unprivileged publication by writing, printing,
picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule
or obloquy, or which tends to deprive
him of public confidence, or to injure him
Vol. 85 — No. 15 — 5/24/2014
in his occupation, or any malicious publication as aforesaid, designed to blacken
or vilify the memory of one who is dead,
and tending to scandalize his surviving
relatives or friends.
If plaintiff alleges that the statement
caused injury to the plaintiff’s occupation
or any of the other alternatives in § 1441
besides exposing the plaintiff to public
hatred, etc., those alternatives should be
substituted for exposing the plaintiff to
public hatred, etc. in the first element of
this Instruction.
The second element sets out the requirement for publication. For discussions of the
publication requirement, see Magnolia Petroleum Co. v. Davidson, 1944 OK 182, ¶ 31, 148
P.2d 468, 471; Starr v. Pearl Vision, Inc., 54
F.3d 1548, 1552-53 (10th Cir. 1995). The third
element is the “of or concerning” requirement, which connects the defamatory statement to the plaintiff. See McCullough v. Cities
Service Co., 1984 OK 1, ¶ 20, 676 P.2d 833,
836; Miskovsky v. Tulsa Tribune Co., 1983 OK
73, ¶ 24, 678 P.2d 242, 248.
The fourth element is included because §
1441 appears to make the issue of falsity a
part of the plaintiff’s case. The United
States Supreme Court has stated that a
public figure plaintiff has the burden of
proof on the issue of falsity in a defamation
case. Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767, 775, 776-77 (1986) (also holding that a private figure plaintiff has the
burden of proof on the issue of the falsity
of a media defendant’s speech on a matter
of public concern).
Statements which cannot be proven
“true” or “false,” because they are opinions
or conclusions based on a review of the
individual’s actions are privileged. Magnusson v. New York Times Co., 2004 OK 53, ¶
13, 98 P.3d 1070, 1076. The trial judge
should determine whether a statement is
one of fact or an opinion. Id.
Whether special damages (i.e., a financial
loss) are required in the fifth element
depends on whether the defamation is libel
per se or libel per quod. If the defamatory
statement is libel per quod, the court should
use “a financial loss” in the fifth element,
and it should use “damages to [Plaintiff]’s
reputation if the defamatory statement is
libel per se. Defamation is libel per se,
1187
“’when the language used therein is susceptible of but one meaning, and that an
opprobrious one, and the publication on its
face shows that the derogatory statements,
taken as a whole, refer to the plaintiff.’ Fite
v. Oklahoma Pub. Co., 146 Okla. 150, 293 P.
1073 (1930) (syllabus by the court).” Sturgeon v. Retherford Publications, Inc., 1999 OK
CIV APP 78, ¶ 11, 987 P.2d 1218, 1223. In
contrast, libel per quod requires extrinsic
proof of the defamatory meaning. Id.
Whether libel is per se or per quod is a matter
of law, unless a fact issue must be determined. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 35, 958 P.2d 128, 147;
Brock v. Thompson, 1997 OK 127, ¶ 27, 948
P.2d 279, 292.
Slander is defined in 12 O.S.2011, § 1442
as follows:
Slander is a false and unprivileged
publication, other than libel, which:
1. Charges any person with crime, or
with having been indicted, convicted or
punished for crime.
2. Imputes to him the present existence
of an infectious, contagious or loathsome
disease.
3. Tends directly to injury him in
respect to his office, profession, trade or
business, either by imputing to him general disqualification in those respects
which the office or other occupation
peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural
tendency to lessen its profit.
4. Imputes to him impotence or want
of chastity; or,
5. Which, by natural consequences,
causes actual damage.
Special damages are not required for
slander per se, meaning that the slander
comes within the first four alternatives in §
1442. Mitchell v. Griffin Television, L.L.C.,
2002 OK CIV APP 115, ¶ 5, 60 P.3d 1058,
1061. Accordingly, if the defamatory statement is per quod, the court should use “a
financial loss” in the sixth element, and it
should use “damages to [Plaintiff]’s reputation” if the defamatory statement is slander per se. Emotional distress is not a form
of special damages for slander per quod.
1188
Zeran v. Diamond Broadcasting, Inc., 203 F.3d
714, 718 (10th Cir. 2000) (applying Oklahoma law).
The last element involving the proof of
the defendant’s fault by clear and convincing evidence is needed because of the line
of United States Supreme Court decisions
beginning with New York Times v. Sullivan,
376 U.S. 2454 (1964). The Supreme Court
held in the New York Times case that the
First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement
was made with ‘actual malice’ - that is,
with knowledge that it was false or with
reckless disregard of whether it was false
or not.” Id. at 280-81: Miskovsky v. Oklahoma
Publishing Co., 1982 OK 8, ¶ 11, 654 P.2d
587, 590. The requirement that the defendant made the statement with “reckless
disregard” of its truth means that the defendant must have entertained serious doubt
as to its truth. St. Amant v. Thompson, 390
U.S. 727, 731 (1968); Miskovsky v. Oklahoma
587, 591. The Supreme Court requires
“actual malice” to be proved by clear and
convincing evidence. Bose Corp. v. Consumers Union, 466 U.S. 485, 513 (1984); Herbert
v. Oklahoma Christian Coalition, 1999 OK 90,
¶ 17, 992 P.2d 322, 328. The United States
Supreme Court has not resolved, however,
whether falsity may be shown by a preponderance of the evidence or must be shown
by clear and convincing evidence instead.
Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 661 n.2 (1989).
Defamation - Elements (Private Figure
Plaintiff)
In order to recover for defamation, [Plaintiff]
has the burden of proving the following five
elements by the greater weight of the evidence:
1. The statement exposed [Plaintiff] to public
hatred, contempt, ridicule or disgrace;
2. [Defendant] communicated the statement
to (a person)/persons) other than [Plaintiff];
3. (That person)/(Those persons) reasonably
understood the statement to be about [Plaintiff];
Vol. 85 — No. 15 — 5/24/2014
4. The statement was false; however, minor
inaccuracies do not amount to falsity if the
statement is substantially true; and,
5. [Defendant] did not exercise the care
which a reasonably careful person would use
under the circumstances to determine whether
the statement was true or false; and,
6. The statement caused [Plaintiff] to suffer
(a financial loss)/(damage to Plaintiff’s reputation and/or emotional injury).
Notes on Use
where the plaintiff is a private figure.
Comments
The United States Supreme Court decided in Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974), that “so long as they do not impose
liability without fault, the States may define
for themselves the appropriate standard of
liability for a publisher or broadcaster of
defamatory falsehood injurious to a private
individual.” Id. at 346-47. Soon after the
Gertz decision, the Oklahoma Supreme
Court adopted the negligence standard “as
a reasonable balance between the right of
the news media and the right of the private
individual.” Martin v. Griffin Television, Inc.,
1976 OK 13 ¶ 23, 549 P.2d 85, 92. The fifth
element in this Instruction reflects the negligence standard for defamation.
While both Gertz and Martin were concerned with news media defendants, the
Oklahoma Court of Civil Appeals has
applied the negligence standard to defendants that were not news media. Trice v.
Burgess, 2006 OK CIV APP 79, ¶ 3, 137 P.3d
1253, 1255-56; Bird Constr. Co., Inc. v. Oklahoma City Housing Auth., 2005 OK CIV APP
169, ¶ 7, 110 P.3d 560, 564; Tanique, Inc. v.
State ex rel. Oklahoma Bureau of Narcotics &
Dangerous Drugs, 2004 OK CIV APP 73, ¶¶
29-30, 99 P.3d 1209, 1217. In Trice v. Burgess,
supra, for example, a former youth director
at a church brought a defamation action
against the church and a minister alleging
that the minister had told persons in the
church and the community that the plaintiff “was terminated from his job because
he was questioning his sexuality.” 2006 OK
CIV APP 79, at ¶ 3, 137 P.3d 1253, at 125556. The Court of Civil Appeals set out the
elements for defamation as follows:
Vol. 85 — No. 15 — 5/24/2014
In order to recover for defamation, a private figure must prove (1) a false and
defamatory statement, (2) an unprivileged publication to a third party, (3) fault
amounting at least to negligence on the part
of the publisher; and (4) either the actionability of the statement irrespective of
special damage, or the existence of special
damage caused by the publication.”
2006 OK CIV APP 79, at ¶ 10, 137 P.3d 1253,
at 1257 (quoting from Mitchell v. Griffin
Television, L.L.C., 2002 OK CIV APP 115, ¶
5, 60 P.3d 1058, 1061) (emphasis added). In
Bird Constr. Co. v. Oklahoma City Housing
Auth., supra, the defamation claim arose
out of a letter that the defendant housing
authority sent to the plaintiff’s bonding
company complaining about the plaintiff
construction company’s performance on a
housing project. The Court of Civil Appeals
set out the elements for libel as follows:
Libel is a form of defamation, which
requires “(a) a false and defamatory statement concerning another, (b) an unprivileged publication to a third party, (c) fault
amounting at least to negligence on the
part of the publisher, and (d) either actionability of the statement irrespective of
special harm or the existence of special
harm caused by the publication.”
Bird Constr. Co., Inc. v. Oklahoma Housing
Auth., 2005 OK CIV APP 169, ¶ 7, 110 P.3d
560, 564 (quoting from RESTATEMENT
(SECOND) OF TORTS § 558 (1977)).
individual’s actions are privileged. Magnusson v. New York Times Co., 2004 OK 53,
¶13, 98 P.3d 1070, 1076. The trial judge
Gertz also held that “the States may not
permit recovery of presumed or punitive
damages, at least when liability is not
based on a showing of knowledge of falsity
or reckless disregard for the truth.” 418
U.S. at 349. Later in Dunn & Bradstreet, Inc.
v. Greenmoss Builders, Inc., 472 U.S. 749, 763
(1985), the United States Supreme Court
held that this limitation was not applicable
when the defamatory statements did not
involve matters of public concern. Punitive
damages are not available in Oklahoma
1189
unless a defendant acted either with reckless disregard of the rights of others or
intentionally and with malice. See 23
O.S.2011, § 9.1. Thus, punitive damages
would not be available for defamation
based on a negligence standard. In Martin,
the Oklahoma Supreme Court decided that
the prior Oklahoma statute that authorized
presumed damages for defamation, 12 O.S. §
1446 (repealed 1986), was unconstitutional
under Gertz. Accordingly, it appears that
the actual malice standard would not be
applicable to defamation cases in Oklahoma brought by private figure plaintiffs.
If plaintiff alleges that the statement
caused injury to the plaintiff’s occupation
or any of the other alternatives in § 1441
besides exposing the plaintiff to public
hatred, etc., those alternatives should be
substituted for exposing the plaintiff to
public hatred, etc. in the first element of
this Instruction.
The second element sets out the requirement for publication. For discussions of the
publication requirement, see Magnolia Petroleum Co. v. Davidson, 1944 OK 182, ¶ 31, 148
P.2d 468, 471; Starr v. Pearl Vision, Inc., 54
F.3d 1548, 1552-53 (10th Cir. 1995). The third
element is the “of or concerning” requirement, which connects the defamatory statement to the plaintiff. See McCullough v. Cities
Service Co., 1984 OK 1, ¶ 20, 676 P.2d 833,
836; Miskovsky v. Tulsa Tribune Co., 1983 OK
73, ¶ 24, 678 P.2d 242, 248.
The fourth element is included because
§ 1441 appears to make the issue of falsity
a part of the plaintiff’s case. The United
States Supreme Court has stated that a
public figure plaintiff has the burden of
proof on the issue of falsity in a defamation
case. Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767, 775, 776-77 (1986) (also holding that a private figure plaintiff has the
burden of proof on the issue of the falsity
of a media defendant’s speech on a matter
of public concern).
individual’s actions are privileged. Magnusson v. New York Times Co., 2004 OK 53, ¶
13, 98 P.3d 1070, 1076. The trial judge
1190
Whether special damages (i.e., a financial loss) are required in the fifth element
depends on whether the defamation is libel
per se or libel per quod. If the defamatory
statement is libel per quod, the court should
use “a financial loss” in the fifth element,
and it should use “damages to [Plaintiff]’s
reputation if the defamatory statement is
libel per se. Defamation is libel per se,
“’when the language used therein is susceptible of but one meaning, and that an
opprobrious one, and the publication on its
face shows that the derogatory statements,
taken as a whole, refer to the plaintiff.’ Fite
v. Oklahoma Pub. Co., 146 Okla. 150, 293 P.
1073 (1930) (syllabus by the court).” Sturgeon v. Retherford Publications, Inc., 1999 OK
CIV APP 78, ¶ 11, 987 P.2d 1218, 1223. In
contrast, libel per quod requires extrinsic
proof of the defamatory meaning. Id.
Whether libel is per se or per quod is a matter
of law, unless a fact issue must be determined. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 35, 958 P.2d 128, 147;
Brock v. Thompson, 1997 OK 127, ¶ 27, 948
P.2d 279, 292.
Slander is defined in 12 O.S.2011, § 1442
as follows:
Slander is a false and unprivileged
publication, other than libel, which:
1. Charges any person with crime, or
with having been indicted, convicted or
punished for crime.
2. Imputes to him the present existence
of an infectious, contagious or loathsome
disease.
3. Tends directly to injury him in
respect to his office, profession, trade or
business, either by imputing to him general disqualification in those respects
which the office or other occupation
peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural
tendency to lessen its profit.
4. Imputes to him impotence or want
of chastity; or,
5. Which, by natural consequences,
causes actual damage.
Special damages are not required for
slander per se, meaning that the slander
comes within the first four alternatives in §
Vol. 85 — No. 15 — 5/24/2014
1442. Mitchell v. Griffin Television, L.L.C.,
2002 OK CIV APP 115, ¶ 5, 60 P.3d 1058,
1061. Accordingly, if the defamatory statement is per quod, the court should use “a
financial loss” in the sixth element, and it
should use “damages to [Plaintiff]’s reputation” if the defamatory statement is slander per se. Emotional distress is not a form
of special damages for slander per quod.
Zeran v. Diamond Broadcasting, Inc., 203 F.3d
714, 718 (10th Cir. 2000) (applying Oklahoma law).
statement is a fair comment if it meets the following four requirements:
The last element involving the proof of
the defendant’s fault by clear and convincing evidence is needed because of the line
of United States Supreme Court decisions
beginning with New York Times v. Sullivan,
376 U.S. 2454 (1964). The Supreme Court
held in the New York Times case that the
First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement
was made with ‘actual malice’ — that is,
with knowledge that it was false or with
reckless disregard of whether it was false
or not.” Id. at 280-81: Miskovsky v. Oklahoma
587, 590. The requirement that the defendant made the statement with “reckless
disregard” of its truth means that the defendant must have entertained serious doubt
as to its truth. St. Amant v. Thompson, 390
U.S. 727, 731 (1968); Miskovsky v. Oklahoma
587, 591. The Supreme Court requires
“actual malice” to be proved by clear and
convincing evidence. Bose Corp. v. Consumers Union, 466 U.S. 485, 513 (1984); Herbert
v. Oklahoma Christian Coalition, 1999 OK 90,
¶ 17, 992 P.2d 322, 328. The United States
Supreme Court has not resolved, however,
whether falsity may be shown by a preponderance of the evidence or must be shown
by clear and convincing evidence instead.
Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 661 n.2 (1989).
To decide whether the statement was a fair
comment, you should consider the following:
Defamation - Affirmative Defense of Fair
Comment
[Defendant] has raised the defense in this
case that the alleged defamatory statement is
privileged because it was a fair comment. A
Vol. 85 — No. 15 — 5/24/2014
1. The statement dealt with a matter of public
concern;
2. The statement was based on true or privileged facts;
3. The statement was the actual opinion of
the person who made it; and
4. The person did not make the statement
only for the purpose of causing harm.
1. The way the statement was phrased;
2. The context in which the statement
appeared;
3. The medium in which the statement was
distributed;
4. The circumstances surrounding the statement’s publication; and
5. Whether the statement implied the existence of undisclosed facts.
Comments
In Magnussan v. New York Times, 2004 OK
53, ¶¶ 8, 23, 98 P.3d 1070, 1074, 1079, the
Oklahoma Supreme Court recognized the
common law fair comment privilege in
Oklahoma and held that it was available as
a defense against private individuals as
well as public figures. The Oklahoma
Supreme Court delineated the elements of
the privilege as follows:
Under the common law defense of fair
comment, a statement is generally privileged when it: 1) deals with a matter of
public concern; 2) is based on true or
privileged facts; and 3) represents the
actual opinion of the speaker, but is not
made for the sole purpose of causing
harm. In making the privilege determination, courts look to the phrasing of the
statement, the context in which it appears,
the medium through which it is disseminated, the circumstances surrounding its
publication, and a consideration of whether the statement implies the existence of
undisclosed facts.
Id. ¶ 11, 98 P.3d at 1075 (footnote omitted).
1191
Defamation - Affirmative Defense of Fair
Reporting
Defamation - Affirmative Defense of Good
Faith
case that the alleged defamatory statement is
privileged because it was a fair report. A statement is a fair report if:
case that the alleged defamatory article is
privileged because it was published in good
faith in a newspaper/periodical. An article is
privileged under this defense if it was published in good faith and its falsity was due to
an honest mistake.
The statement was a fair and true report of a
(legislative/judicial proceeding)/(proceeding
authorized by law);
OR
The statement was (an expression of opinion)/(a criticism) of a (legislative/judicial proceeding)/(proceeding authorized by law);
OR
The statement was a criticism upon an official act of a public officer that did not falsely
impute crime to the officer.
Comments
12 O.S.2011, § 1443.1 provides:
A. A privileged publication or communication is one made: First, In any legislative or judicial proceeding or any other
proceeding authorized by law;
Second. In the proper discharge of an
official duty.
Third. By a fair and true report of any
legislative or judicial or other proceeding
authorized by law, or anything said in
the course thereof, and any and all expressions of opinion in regard thereto, and
criticisms thereon, and any and all criticisms upon the official acts of any and al
public officers, except where the matter
stated of and concerning the official act
done, or of the officer, falsely imputes
crime to the officer so criticized.
B. No publication which under this section would be privileged shall be punishable as libel.
In Gaylord Entertainment Co. v. Thompson,
1998 OK 30, ¶ 29, 958 P.2d 128, 145. The
Oklahoma Supreme Court, ruled that a
defendant had the burden of asserting and
proving the fair report and fair comment
privileges as affirmative defenses.
1192
If you determine that the article was published in good faith and its falsity was due to
an honest mistake, Plaintiff [name] shall be
entitled to recover only financial losses, such as
loss of earnings/profits, [unless Plaintiff
requested a retraction and Defendant [name]
refused to publish the retraction].
Notes on Use
The last clause of this Instruction, referring to a retraction should be given if there
is evidence presented at trial that a retraction was requested and refused.
Comments
12 O.S. 2011 § 1446a provides:
In an action for damages for the publication of a libel in a newspaper or periodical, if the evidence shows that the article
was published in good faith and that its
falsity was due to an honest mistake of
the facts, and the question of “honest
mistake” shall be a question of fact to be
determined by a jury, unless a jury be
waived by the parties, the plaintiff shall
be entitled to recover actual damages
only unless a retraction be requested and
refused as hereinafter provided. The person claiming to have been libeled shall
notify the publisher, either orally or in
writing, stating or setting forth the particular matter claimed to be libelous and
requesting that the same be retracted. If a
retraction, headed “RETRACTION” in
eighteen point type or larger, be published on the same page and in the same
type as were the statements complained
of, in two regular issues of said newspaper or periodical, published within a
reasonable time, but not to exceed two (2)
weeks after such notice in a weekly
newspaper, or not to exceed one (1) week
in a daily newspaper, the publication of
said retraction shall be full and complete
Vol. 85 — No. 15 — 5/24/2014
satisfaction as to all other than actual
damages, and the plaintiff shall not be
entitled to recover other than actual damages on account of such erroneous published matter. If such a retraction be not
so published, plaintiff may recover such
damages as are provided by the statutes
of this state, if his cause of action be
maintained. This section shall not apply
to any libel imputing unchastity to a
woman; nor in any case in which the evidence shows the publication was made
maliciously, or with a premeditated intention and purpose to injure, defame or
destroy the reputation of another or to
injuriously alter a person’s reputation;
nor to anonymous communications or
publications, and provided further that
this section shall not apply to any article
pertaining to any candidate for any public office when said article is published
within three (3) weeks of the date of the
primary, runoff primary, special or general election, as the case may be.
Defamation - Affirmative Defense For
Statement Made by Another Person
privileged because it was a statement made by
another person. A statement is privileged under
this defense if the following requirements are
met:
1. Defendant is [an agent /employee of] a/an
owner/licensee/operator of a (television/radio
broadcasting station)/(network of television/
radio broadcasting stations);
2. The statement was published/uttered in/
(as a part of) a television/radio broadcast;
3. By a person other than [an agent /employee] the Defendant; and
4. Defendant did not fail to exercise due care
to prevent the publication/utterance of the
statement.
Comments
12 O.S.2011, § 1447.1 provides:
The owner, licensee or operator of a television and/or radio broadcasting station
or network of stations, and the agents or
employees of any such owner, licensee or
operator, shall not be liable for any damVol. 85 — No. 15 — 5/24/2014
ages for any defamatory statement published or uttered in or as a part of a television and/or radio broadcast, by one other
than such owner, licensee or operator, or
agent or employee thereof, unless it shall
be alleged and proved by the complaining
party, that such owner, licensee, operator
or such agent or employee, has failed to
exercise due care to prevent the publication or utterance of such statement in
such broadcast.
Defamation - Affirmative Defense of
Qualified Privilege
privileged. A statement is privileged under this
defense if [Defendant] reasonably believed:
1. The statement gave information that affected an important interest of [Identify person to
whom statement was made]; and,
2. It was within generally accepted standards
of decent conduct for [Defendant] to make the
statement.
An important factor in favor of a finding that
it was within generally accepted standards of
decent conduct for [Defendant] to make the
statement is that:
[Defendant] made the statement in response
to a request, rather than volunteering it.
OR
[Defendant] and [Identify person to whom
statement was made] were [Specify relationship between them].
This defense is not available if [Defendant]
either knew the statement was false or had
serious doubt whether the statement was true
or false.
Notes on Use
The trial court should select whichever
of the alternative factors is appropriate that
supports a finding that it was within generally accepted standards of decent conduct
for the defendant to have made the allegedly defamatory statement. The trial court
should not include the last sentence of the
Instruction unless evidence has been presented of either the defendant’s knowledge
of the statement’s falsity or that the defen-
1193
dant had serious doubt whether the statement was true or false.
Comments
The Oklahoma Supreme Court has recognized qualified privileges based upon
statute as well as upon common law. See
Wright v. Haas, 1978 OK 109, ¶ 6, 586 P.2d
1093, 1096-97. In Fawcett Publications, Inc. v.
Morris, 1962 OK 183, ¶ 54, 377 P.2d 42, 52,
the Oklahoma Supreme Court stated that
as a general rule a qualified privilege has
been applied in cases where “some special
private relationship has been involved, such
as fraternal, fiduciary, business, or professional.” See also Thornton v. Holdenville General Hosp., 2001 OK CIV APP 133, ¶ 16, 36
P.3d 456, 461 (“A conditional privilege
attaches to statements, which would ordinarily be defamatory, made in good faith on
a subject in which the speaker has an interest
or in reference to which he has or honestly
believes he has a duty to perform.”).
This Instruction is based upon RESTATEMENT (SECOND) OF TORTS § 595 (1977),
which states:
(1) An occasion makes a publication
conditionally privileged if the circumstances induce a correct or reasonable
belief that
(a) there is information that affects a
sufficiently important interest of the
recipient or a third person, and
(b) the recipient is one to whom the
publisher is under a legal duty to publish
the defamatory matter or is a person to
whom its publication is otherwise within
the generally accepted standards of
decent conduct.
(2) In determining whether a publication is within generally accepted standards of decent conduct it is an important factor that
(a) the publication is made in response
to a request rather than volunteered by
the publisher or
(b) a family or other relationship exists
between the parties.
Examples of circumstances where this
qualified privilege may apply include
statements concerning a former employee by a former employer to a prospective
1194
employer, reports to police officers, statements by a credit rating agency to a subscriber, communications between members of a trade association, and communications between family members. See
RESTATEMENT (SECOND) OF TORTS §
595 (1977) comments g, h, i, and j. A conditional privilege may also be recognized
where a statement is made that concerns
an interest of the maker of the statement,
a common interest between the maker of
the statement and its recipient, a member
of the family of the maker of the statement, or a public interest. See RESTATEMENT (SECOND) OF TORTS §§ 594,
596-598 (1977). See also Trice v. Burress,
2006 OK CIV APP 79, ¶ 15, 137 P.3d 1253,
1258-59 (recognizing qualified privilege
for communications between church
members concerning conduct of other
church members).
In Wright v. Haas, 1978 OK 109, ¶ 8, 586
P.2d 1093, 1097, the Oklahoma Supreme
Court held that a qualified privilege is
lost if it is abused as a result of the maker
of the statement having knowledge of its
falsity or acting in reckless disregard of
its truth or falsity. The Oklahoma Supreme
Court recognized that the standard for
loss of a qualified privilege is the same as
the requirement of actual malice for a
public figure plaintiff. Accordingly, it
held that a conditional privilege was not
available as a defense for a public defamation plaintiff. Id. ¶ 9, 586 P.2d at 1097.
Defamation - Measure of Damages
If you decide for Plaintiff [name], you must
then fix the amount of his/her damages. This is
the amount of money that will reasonably and
fairly compensate him/her for the injury sustained as a result of the defamation by Defendant [name].
In fixing the amount you will award him/her
you may consider the following elements:
1. Financial losses, such as loss of earnings/
profits;
2. Injury to reputation and standing in the
community;
3. Personal humiliation;
4. Mental anguish and suffering.
Vol. 85 — No. 15 — 5/24/2014
Comments
Martin v. Griffin Television, Inc., 1976 OK 13,
¶ 26, 549 P.2d 85, 93, that allowable damages for defamation are not limited to outof-pocket losses, but may also include
impairment of reputation and standing in
the community, personal humiliation, and
mental anguish and suffering.
1. The information derives independent economic value from not being generally known;
2. The information is not readily ascertainable, through proper means, by other persons
who can obtain economic value from its disclosure or use; and
3. The information is the subject of reasonable efforts to maintain its secrecy.
Notes on Use
Misappropriation of Trade Secrets —
Elements
Plaintiff [name] claims that Defendant [name]
has misappropriated trade secrets from Plaintiff by [specify the trade secrets and how
Defendant misappropriated them]. In order to
recover on the claim for misappropriation of
trade secrets, Plaintiff has the burden of proving the following elements by the greater
weight of the evidence:
1. Plaintiff [name] was the owner of trade
secrets;
2. Defendant [name] misappropriated the
trade secrets;
3. The misappropriation of the trade secrets
was the direct cause of damages to Plaintiff.
Comments
The law of trade secrets in Oklahoma is
governed by the Uniform Trade Secrets
Act, 78 O.S. 2011 §§ 85-94. In Micro Consulting, Inc. v. Zubeldia, 813 F. Supp. 1514, 1534
(W.D. Okla. 1990), the United States District Court for the Western District of Oklahoma listed the elements of a trade secrets
claim as: “(1) the existence of a trade secret;
(2) misappropriation of this secret by the
defendants; and (3) use of the secret by the
defendants to the detriment of the plaintiff.” The standard announced in Micro
Consulting, Inc. was noted by the Oklahoma
Court of Civil Appeals in MTG Guarnieri
Mfg., Inc. v. Clouatre, 2010 OK CIV APP 71,
¶ 12, n.14, 239 P.3d 202, 209.
Comments
78 O.S. 2011 § 86(4) defines a trade secret as
follows:
“Trade secret” means information including a formula, pattern, compilation, program, device, method, technique or process, that:
a. derives independent economic value,
actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its
disclosure or use, and
b. is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.
Misappropriation — Definition
“Misappropriation” means:
1. Acquisition of another person’s trade secret
by a person who knows or has reason to know
that the trade secret was acquired by improper
means;
OR
2. Disclosure or use of a trade secret that
belongs to another person, without express or
implied consent, by a person who:
(A) Used improper means to acquire knowledge of the trade secret;
Trade Secret — Definition
A “trade secret” is information, such as a
formula/pattern/compilation/program/
device/method/technique/process, that meets
the following thee requirements:
Vol. 85 — No. 15 — 5/24/2014
The trial court should select the appropriate
alternative(s) in the definition based upon the
evidence presented at trial.
OR
(B) At the time of disclosure or use, knew or
had reason to know that the person’s knowledge of the trade secret was:
1195
(i) derived from or through a person who
had utilized improper means to acquire it;
OR
(ii) acquired under circumstances giving rise
to a duty to maintain its secrecy or limit its
use;
OR
(iii) derived from or through a person who
owed a duty to Plaintiff [name] to maintain its
secrecy or limit its use;
OR
(C) Acquired the information by accident or
mistake, and before a material change of the
person’s position, knew or had reason to know
that is was a trade secret.
Notes on Use
The trial court should select the appropriate
alternative(s) in the definition based on the
evidence presented at trial.
Comments
78 O.S. 2011 § 86(2) defines misappropriation as follows:
“Misappropriation” means:
a. acquisition of a trade secret of another by
a person who knows or has reason to know
that the trade secret was acquired by
improper means; or
b. disclosure or use of a trade secret of
another without express or implied consent by a person who:
(1) used improper means to acquire
knowledge of the trade secret; or
(2) at the time of disclosure or use, knew
or had reason to know that his knowledge of the trade secret was:
(a) derived from or through a person
who had utilized improper means to
acquire it; or
(b) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(c) derived from or through a person
who owed a duty to the person seeking relief to maintain its secrecy or
limit its use; or
1196
(3) before a material change of his position,
knew or had reason to know that it was a
trade secret and that knowledge of it had
been acquired by accident or mistake.
Improper Means — Definition
“Improper means” includes theft/bribery/
misrepresentation/(breach of a duty to maintain secrecy) / (inducing another person to
breach a duty to maintain secrecy)/ espionage.
Notes on Use
The trial court should select the appropriate alternative(s) in the definition based
on the evidence presented at trial.
Comments
78 O.S. 2011 § 86(1) defines improper
means as follows: “’Improper means’
includes theft, bribery, misrepresentation,
breach or inducement of a breach of a duty
to maintain secrecy, or espionage through
electronic or other means.”
Misappropriation of Trade Secrets —
Measure of Damages
A person who misappropriates trade secrets
is liable for damages to the owner of the trade
secrets. If you decide that Defendant [name]
misappropriated trade secrets from Plaintiff
[name], you must then fix the amount of damages. This is the amount of money that:
1. Would be a reasonable royalty for Defendant’s disclosure/use of the trade secrets;
OR
2. Will reasonably and fairly compensate
Plaintiff for:
A. The actual loss caused by the misappropriation; and
B. The net profit or other benefit that Defendant unjustly received from the misappropriation to the extent that it is not taken into
account in calculating the actual loss to Plaintiff; whichever of 1 or 2 is the greater.
Notes on Use
The trial court should select the appropriate alternative remedy(ies) as supported
by the evidence, and the jury should return
the larger amount on the Verdict Form.
Vol. 85 — No. 15 — 5/24/2014
Comments
78 O.S. 2011 §88(A) specifies the measure of damages for misappropriation of
trade secret as follows:
Damages can include both the actual loss
caused by misappropriation and the
unjust enrichment caused by misappropriation that is not taken into account in
computing actual loss. In lieu of damages
measured by any other methods, the
damages caused by misappropriation
may be measured by imposition of liability for a reasonable royalty for a misappropriator’s unauthorized disclosure or
use of a trade secret.
The court may also award exemplary damages for a willful and malicious appropriation in an amount not exceeding twice the
amount of compensatory damages under
78 O.S. 2011 § 88(B).
2014 OK 18
IN RE: AMENDMENT TO THE
OKLAHOMA UNIFORM DISTRICT
COURT RULES,
12 O.S. Ch. 2, App.
S.C.A.D. No. 2014-18. March 24, 2014
ORDER ADOPTING AMENDMENT TO
RULES FOR DISTRICT COURTS OF
OKLAHOMA
¶1 The Court has reviewed the recommendation of the Oklahoma Supreme Committee for
Uniform Jury Instructions that the Rules for
District Courts of Oklahoma be amended by
creation of new Rule 32.
¶2 The Court hereby adopts new Rule 32 for
the District Courts, and it is therefore ordered,
adjudged and decreed that new Rule 32, as set
out herein shall be included and codified as
Rule 32 of the Rules for the District Courts of
Oklahoma, 12 O.S.2001, Ch. 2, App., Rule 32.
¶3 New Rule 32 shall be effective sixty (60)
days from the date this Order is filed with the
Clerk of this Court.
¶4 New District Court Rule 32 states as follows:
Rule 32. Juror Questionnaires
When juror questionnaires are used at a
trial, access to the questionnaires by the
parties must be balanced against the juror’s
Vol. 85 — No. 15 — 5/24/2014
right to privacy and to the confidentiality
of the information in the questionnaires.
Copies of the questionnaires shall be made
available only for use during voir dire to
attorneys for the parties and to the trial
court. All copies shall be destroyed at the
conclusion of voir dire. The original questionnaires of all jurors shall be sealed by
the District Court and retained, but not
made part of the public record.
COURT IN CONFERENCE THE 13TH DAY
OF MARCH, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
2014 OK 19
IN RE: AMENDMENT TO THE
OKLAHOMA SUPREME COURT RULES,
12 O.S. Ch. 15, App. 1
S.C.A.D. No. 2014-19. March 24, 2014
ORDER ADOPTING AMENDMENT TO
OKLAHOMA SUPREME COURT RULES
¶1 The Court has reviewed the recommendation of the Oklahoma Supreme Committee for
Uniform Jury Instructions that Oklahoma
Supreme Court Rule 1.28 be amended to
include new material designated as paragraph
1.28(l) and codified immediately following
paragraph 1.28(k).
¶2 The Court hereby adopts new paragraph
1.28(l) for Supreme Court Rule 1.28, and it is
therefore ordered, adjudged and decreed that
paragraph 1.28(l), as set out herein shall be included and codified as paragraph 1.28(l) of
Oklahoma Supreme Court Rule 1.28, 12 O.S.201,
Ch. 15, App. 1.
¶3 Paragraph 1.28(l) of Okla. Sup. Ct. R. 1.28
shall be effective sixty (60) days from the date
this Order is filed with the Clerk of this Court.
¶4 New paragraph (l) of Okla Sup. Ct. R. 1.28
shall state as follows:
1197
Okla. Sup. Ct. Rule 1.28(l) Juror Questionnaires
A) If appellate counsel designates the questionnaire of any juror, the Clerk of the District Court shall transmit the sealed original questionnaire(s) to the Clerk of the
Supreme Court along with the rest of the
appellate record. Only the attorneys of
record on appeal may view the juror questionnaires at the office of the Oklahoma
Supreme Court Clerk, and attorneys shall
not remove the juror questionnaires from
the custody of the Court. The attorneys of
record on appeal may contact the Clerk to
schedule a date and time when the questionnaires may be viewed. The sealed juror
questionnaires may not be photocopied or
removed from the Supreme Court Clerk
office.
(B) After an appeal has been decided by
this Court, or the Court has denied A petition for writ of certiorari, the Oklahoma
Supreme Court Clerk shall continue to
retain all questionnaires until the later of
(1) the expiration of time for filing a petition for a writ of certiorari in the United
States Supreme Court; or (2) the issuance of
a notice of final disposition by the United
States Supreme Court. See Okla. Sup. Ct. R.
1.16 and Sup. Ct. R. 45-46. Thereafter, the
Oklahoma Supreme Court Clerk shall
destroy all originals and photocopies of
juror questionnaires.
(C) Briefs and motions shall not refer to
jurors by name, but shall use initials or
juror number instead.
COURT IN CONFERENCE THE 13TH DAY
OF MARCH, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
2014 OK 26
IN RE: Rules for Mandatory Continuing
Legal Education
SCBD No. 3319. April 10, 2014
ORDER
This Court’s order in this matter, 2014 OK 26,
is hereby corrected to change “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
by the Court that Rules 2 (a), (c) and (d), 5 and 7,
(Regs. 3.2, 4.1.3, 4.1.5, 4.1.6, 4.1.8, 4.1.9, and 5) of
the Rules of Mandatory Continuing Legal Education, 5. O.S. Supp. 2012, ch. 1, app. 1-B, is
hereby amended as set out in its entirety on
Exhibit “A” attached hereto” to “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
by the Court that Rules 2 (a), (c) and (d), 5 and 7
(Regs. 3.2, 4.1.3, 4.1.5, 4.1.6, 4.1.8, 4.1.9, and 5) of
the Rules of Mandatory Continuing Legal Education, 5 O.S. Supp. 2012, ch. 1, app. 1-B, are
hereby amended as set out in its entirety on
Exhibit “A” attached hereto.” In all other respects the order remains unchanged.
COURT this 10th day of April, 2014
/s/ Tom Colbert
CHIEF JUSTICE
April 7, 2014
ORDER GRANTING AMENDMENT TO
RULES FOR MANDATORY CONTINUING
LEGAL EDUCATION
This matter comes on before this Court upon
an Application of the Oklahoma Bar Association House of Delegates to amend Rules 2 (a)
and (d), and by the Oklahoma Bar Association
Board of Governors to amend Rules 2 (c), 5,
and 7 (Regs. 3.2, 4.1.3, 4.1.5, 4.1.6, 4.1.8, 4.1.9,
and 5) of the Rules for Mandatory Continuing
Legal Education, 5 O.S. Supp. 2012, ch. 1, app.
1-B. This Court finds that it has jurisdiction
over this matter.
IT IS THEREFORE ORDERED, ADJUDGED
AND DECREED by the Court that Rules 2 (a),
(c) and (d), 5 and 7 (Regs. 3.2, 4.1.3, 4.1.5, 4.1.6,
4.1.8, 4.1.9, and 5) of the Rules of Mandatory
Continuing Legal Education, 5 O.S. Supp. 2012,
ch. 1, app. 1-B, is hereby amended as set out in
its entirety on Exhibit “A” attached hereto.
DONE BY ORDER OF THE SUPREME COURT
IN CONFERENCE this 7th day of April, 2014.
/s/ Tom Colbert
1198
Vol. 85 — No. 15 — 5/24/2014
CHIEF JUSTICE
CONCUR: Colbert, C.J.; Reif, V.C.J.; Kauger,
Watt, Winchester, Edmondson, Taylor,
Gurich, JJ.
NOT PARTICIPATING: Combs, J.
exempt from the educational requirements
of these rules.
(g) Any person claiming an exemption
hereunder is required to file an annual
report in compliance with these rules and
regulations.
“RULE 2. SCOPE AND EXEMPTIONS.
Rule 5. ANNUAL REPORT
(a) Effective January 1, 2015, except as provided herein, these rules shall apply to
every active and senior member of the
Oklahoma Bar Association as defined by
Article II of the Rules Creating and Controlling the Oklahoma Bar Association.
On or before February 15th of each year,
every active and senior member of the
Oklahoma Bar Association, who did not
attain age 65 before or during the preceding calendar year, shall report in such a
form as the MCLEC shall prescribe concerning his or her completion of accredited
legal education during the preceding calendar for the current year or exemption
from the requirements of these rules. An
attorney reporting attainment of age sixtyfive (65) need only make one (1) such
annual report.
(b) An attorney is exempt from the educational requirements of these rules for the
calendar year during which he or she was
first admitted to practice.
(c) All Judges who, during the entire reporting period, are by Constitution, law or
regulation prohibited from the private
practice of law, members of the United
States Congress, members of the Oklahoma
Legislature, the Attorney General of the
State of Oklahoma, and members of the
armed forces on full time active duty, and
members of the Board of Governors of the
Oklahoma Bar Association, members of the
Professional Responsibility Commission
and members of the Professional Responsibility Tribunal, during their year(s) of service, shall be exempt from the educational
requirements of these rules.
(d) An attorney who attains the age of sixty-five (65) years of age before or during
the calendar year which is being reported
is exempt from all requirements of these
rules except as provided in Rule 5. An
attorney having been granted an exemption based on attaining age 65 prior to January 1, 2015, shall be granted a continuing
exemption.
(e) An attorney who, during the entire
reporting period, is a nonresident of the
State of Oklahoma and did not practice law
in the State of Oklahoma is exempt from the
educational requirements of these rules.
(f) An attorney who files an affidavit with
the Commission on Mandatory Continuing
Legal Education of the Oklahoma Bar Association stating that the attorney did not
practice law during the reporting period is
Vol. 85 — No. 15 — 5/24/2014
Rule 7. REGULATIONS
Regulation 3
3.2 Other requests for substituted compliance, partial waivers, or other exemptions
for hardship or extenuating circumstances
may be granted by the Commission upon
written application of the attorney and
may likewise be reviewed by the Board of
Governors and of the Oklahoma Bar Association. Other substitute forms of compliance may be granted for members with
permanent or temporary physical disabilities (based upon a written confirmation
from his or her treating physician) which
makes attendance at regular approved CLE
programs difficult or impossible.
Regulation 4
4.1.1 The following standards will govern
the approval of continuing legal education
programs by the Commission.
4.1.2 The program must have significant
intellectual or practical content and its primary objective must be to increase the participant’s professional competence as an
attorney.
4.1.3 The program must deal primarily
with matters related to the practice of law,
professional responsibility or ethical obligations of attorneys. Programs that cross
academic lines may be considered for
approval.
1199
4.1.4 The program must be offered by a
sponsor having substantial, recent, experience in offering continuing legal education
or demonstrated ability to organize and
present effectively continuing legal education. Demonstrated ability arises partly
from the extent to which individuals with
legal training or educational experience are
involved in the planning, instruction and
supervision of the program.
4.1.5 The program itself must be conducted
by an individual or group qualified by
practical or academic experience. The program,_ including the named advertised
participants, must be conducted substantially as planned, subject to emergency
withdrawals and alterations.
4.1.6 Thorough, high quality, readable, and
carefully prepared written materials must
be made available to all participants at or
before the time the course is presented,
unless the absence of such materials is recognized as reasonable and approved by the
Commission MCLE Administrator. A mere
outline without citations or explanatory
notations will not be sufficient.
4.1.7 The program must be conducted in a
comfortable physical setting, conducive to
learning and equipped with suitable writing surfaces.
4.1.8 Approval may be given for programs
where audiovisual recorded or reproduced
material is used. Television Video programs and motion picture programs with
sound shall qualify for CLE credit in the
same manner as a live CLE program provided:
a.the original CLE program was approved for CLE credit as provided in
these regulations or the visual recorded
video program has been approved by
the Commission under these rules,
and
b.each person attending the visual presentation video program is provided
written material as provided required
in Regulation 4.1.6 and
c.each program is conducted in a location as required in Regulation 4.1.7
and
d.there are a minimum of five (5) persons
enrolled and in attendance at the pre-
1200
sentation of the visually recorded video
program unless viewed at the Oklahoma Bar Center or sponsored by a county bar association in Oklahoma.
4.1.9 Programs that cross academic lines
may be considered for approval. Approval
for credit may also be granted for the following types of electronic-based CLE programs:
a.Live interactive webcast seminars,
webcast replay seminars, live teleconferences and teleconference replays. If
approved, an attorney may earn credit
for seminars provided by these various
delivery methods without an annual
limit.
b.Online, on-demand seminars and
downloadable podcasts. If approved,
an attorney may receive up to six
approved credits per year for these
types of electronic-based programs.
Such programs must also meet the criteria established in the Rules of the
Oklahoma Supreme Court for Mandatory Continuing Legal Education, Rule
7, Regulation 4, subject to standard
course approval procedures and appropriate verification from the course
sponsor.
1.The target audience must be attorneys.
2.The course shall provide high quality
written instructional materials. These
materials may be available to be
downloaded or otherwise furnished
so that the attorney will have the ability to refer to such materials during
and subsequent to the seminars.
3.The provider must have procedures
in place to independently verify an
attorney’s completion of a program.
Verification procedures may vary by
format and by provider. An attorney
affidavit attesting to the completion of
a program is not by itself sufficient.
4.If an online, on demand seminar is
approved, it is approved only for
twelve (12) months after the approval is granted. The sponsor may submit an application to have the course
considered for approval in subsequent years.
Vol. 85 — No. 15 — 5/24/2014
Regulation 5.
On or before February 15th of each year,
every active member, under sixty-five (65)
years of age, or of the Oklahoma Bar Association shall submit a report in a form as
the Commission shall provide concerning
such attorney’s completion of, exemption
from or approved substitute for the minimum hours of instruction, including reference to hours earned during the preceding
year and hours to be carried forward to the
next year. An attorney reporting attainment of age sixty-five (65), need only make
one (1) such annual report.
SUBSTITUTED COMPLIANCE
POLICIES
The following regulations apply to technology-based CLE or distance learning CLE.
The following Policies have been adopted
by the Mandatory Continuing Legal Education Commission which interpret and
supplement the Rules and Regulations
concerning substituted compliance with
the Mandatory Continuing Legal Education requirements:
1. Approval for credit may be granted, on a
course-by-course basis, for live interactive,
audio-only teleconference courses such as
those sponsored and provided by the
American Bar Association. , live webcasts,
live webinars, live webcast replays or live
webinar replays which otherwise meet the
criteria established in the Rules of the
Oklahoma Supreme Court for Mandatory
Continuing Legal Education, Rule 7, Regulation 4, subject to standard course approval procedures and appropriate certification
of course completion. There is no limit to
the number of credits that may be earned
by an attorney per year from these delivery
methods.
2. Approval for credit may be granted, for
no more than six MCLE credits per year,
for computer-based or other technologybased prerecorded legal education programs which otherwise meet the criteria
established in the Rules of the Oklahoma
Supreme Court for Mandatory Continuing
Legal Education, Rule 7, Regulation 4.,
subject to standard course approval procedure and appropriate certification by the
sponsor of course completion.. Approval of
such courses will be good for one year
Vol. 85 — No. 15 — 5/24/2014
from the live recorded date, subject to
approval by the MCLE Administrator.
3. Other substitute forms of compliance
may be granted for members with a permanent or temporary physical disabilities
(based upon a doctor’s certification) which
makes attendance at regular approved CLE
programs difficult or impossible, as set
forth in the Rule 7, Regulation 3.
4. If the CLE course provider has not
secured course approval or rejection for
MCLE credit in Oklahoma, the attorney
attendee, in order to receive MCLE credit,
must submit a request for MCLE credit and
course approval on forms which will be
supplied by the MCLE office, which application must be submitted with a $15 per
course application fee.”
2014 OK 36
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. STEVEN ALLEN HART,
Respondent.
SCBD-6120. May 5, 2014
ORDER OF IMMEDIATE INTERIM
SUSPENSION
The Oklahoma Bar Association (OBA), in
compliance with Rule 7.1 and 7.2 of the Rules
Governing Disciplinary Proceedings (RGDP),
has forwarded to this Court certified copies of
the Information, Plea of Guilty, and Order of
Deferred Sentence in which Steven Allen Hart
entered a plea in the following cases: (1) CM
2013-4773 Tulsa County (Violation of Protective Order, a violation of 22 OS 60.6); (2) CF
2013-2533 Tulsa County (Eluding A Police Officer, a violation of 21 OS 540, Driving Under the
Influence of Alcohol, 47 OS 11-902, Reckless
Driving, a violation of 41 OS 11-901(a)(b), Driving Without a Driver’s License, a violation of 47
OS 6-303(A), Operating a Vehicle Without Proper License Plate or Decal or on Which All Taxes
Due the State Have Not Been Paid, a violation of
47 OS 1151(A)(5), and Failure to Carry Insurance/Security Verification Form, a violation of
47 OS 7-602.1, 7-606A1); and (3) CM 2013-129
Pawnee County (four counts of Protective Order
Violation, a violation of 22 OS 60.6).
Rule 7.3 of the RGDP provides: “Upon receipt
of the certified copies of Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information
1201
and the judgment and sentence, the Supreme
Court shall by order immediately suspend the
lawyer from the practice of law until further
order of the Court.” Having received certified
copies of these papers and orders, this Court
orders that Steven Allen Hart is immediately
suspended from the practice of law. Steven
Allen Hart is directed to show cause, if any, no
later than May 16, 2014, why this order of
interim suspension should be set aside. See
RGDP Rule 7.3. The OBA has until May 27,
2014, to respond to Steven Allen Hart should
one be filed.
Rule 7.2 of the RGDP provides that a certified
copy of a plea of guilty, an order deferring
judgment and sentence, or information and
judgment and sentence of conviction “shall
constitute the charge and be conclusive evidence of the commission of the crime upon
which the judgment and sentence is based and
shall suffice as the basis for discipline in accordance with these rules.” Pursuant to Rule 7.4 of
the RGDP, Steven Allen Hart has until May 26,
2014, to show cause in writing why a final order
of discipline should not be imposed, to request a
hearing, or to file a brief and any evidence tending to mitigate the severity of discipline. The
OBA has until June 10, 2014, to respond.
COURT this 5th day of May, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
All Justices Concur.
2014 OK 37
PHILLIP RYAN PIERCE, Plaintiff/Appellee,
v. STATE OF OKLAHOMA ex rel.
DEPARTMENT OF PUBLIC SAFETY,
Defendant/Appellant.
No. 111,418 [Companion to Nos. 111,419 and
111,420]. May 6, 2014
CERTIORARI TO THE COURT OF CIVIL
APPEALS, DIVISION IV
¶0 The plaintiff/appellee, Phillip Ryan
Pierce (Pierce/driver), appealed the suspension of his driver’s license by the defendant/appellant, State of Oklahoma ex rel.
Department of Public Safety (State/Department), in an administrative proceeding for
driving under the influence (DUI). Pierce
alleged that the Department’s delay of a
revocation hearing for a period of approxi1202
mately twenty (20) months violated his
right to a speedy trial under the Okla.
Const. art. 2, §6. The trial court agreed, setting aside the revocation order and reinstating Pierce’s driving privileges. A divided Court of Civil Appeals reversed. Although expressing its concern related to
the inordinate delay in the proceedings, the
appellate court determined that Pierce had
not asserted his right to a speedy resolution of his cause, was not prejudiced by the
postponement, and that the Department
did not abuse its discretion in waiting
almost two years to finalize the charges in
the cause. Here, the driver lived under the
cloud of a pending revocation proceeding
for approximately twenty (20) months.
Knowing that its complaining witness was
scheduled to be deployed to serve his
country, the Department intentionally postponed the proceeding and did not schedule a hearing to allow the driver to be
heard either on the merits or on the delay.
The Department took these actions although
the arresting officer would have been available for a hearing during the five (5) months
and, on an emergency basis, for three (3)
additional months preceding his deployment and delayed the hearing for more
than a month after the officer returned
stateside. These delays occurred despite
the driver’s timely request for a hearing.
Under these unique facts, we hold that the
driver’s right to a speedy hearing, guaranteed by the Okla. Const. art. 2, §6, was
violated and order reinstatement of his
driving privileges.
COURT OF CIVIL APPEALS OPINION
VACATED; TRIAL COURT AFFIRMED.
Barry K. Roberts, Norman, Oklahoma, Dave
Stockwell, Stockwell Law Offices, Norman,
Oklahoma, for plaintiff/appellee,
Brian Kieth Morton, Department of Public
Safety, Assistant General Counsel, Oklahoma
City, Oklahoma, for defendant/appellant.
WATT, J.:
¶1 Certiorari was granted to address a single
issue.1 Was the delay of approximately twenty
months in scheduling a revocation hearing
aimed at suspending the driving privileges of
the plaintiff/appellee and a violation of the
constitutional right to a speedy trial guaranteed by the Okla. Const. art. 2, §6?2
Vol. 85 — No. 15 — 5/24/2014
¶2 The driver lived under the cloud of a
pending revocation proceeding for some twenty (20) months. Knowing that its complaining
witness was scheduled to be deployed to serve
his country, the Department intentionally delayed a hearing, not only depriving the driver
of being heard on the merits but also denying
his opportunity to oppose the delay. It did so
despite the fact that the arresting officer was
available to testify for the five (5) months preceding deployment. He could also have been
called to testify via subpoena, on an emergency
basis for an additional, three (3) months.3 Once
he returned from his assignment, the Department again was slow to docket the proceeding,
waiting for more than a month after the officer
returned stateside. The unwarranted delay to
schedule an administrative proceeding
occurred despite the driver’s timely request for
a hearing. We hold that, under the unique facts
presented, the driver’s right to a speedy hearing, guaranteed by the Okla. Const. art. 2, §6,
was violated and order reinstatement of his
driving privileges.
FACTS AND PROCEDURAL HISTORY
¶3 On October 31, 2010, Pierce was stopped
on suspicion of driving while intoxicated by a
University of Oklahoma police officer, Sergeant
Bishop. Bishop then contacted Officer Hewett
(Hewett), who with the aide of another officer,
administered field tests to detect intoxication.
Pierce failed these tests and a blood sample was
taken. Hewitt executed an arrest. The following
day, on November 1, 2010, Pierce filed a timely
request for an administrative hearing to contest revocation of his driver’s license.4
¶4 For a period of approximately eight
months following the driver’s request for a
hearing, Hewitt was in the United States. In
April of that year, he was called to active duty
as a member of the Oklahoma National Guard.
Nevertheless, he was able to attend court in
Cleveland County during this period. Furthermore, the arresting officer testified that he
could have been available for a hearing on an
emergency basis until he left the country in
July 2011 for Kuwait.5 Hewett was back in
Cleveland County by April of 2012. However,
the administrative hearing, requested in
November of 2010, did not take place until
approximately twenty (20) months later on
June 8, 2012. At the conclusion of the hearing,
Pierce’s drivers’ license was suspended for
one-hundred-and-eighty (180) days. Less than
Vol. 85 — No. 15 — 5/24/2014
a week later, the driver appealed the revocation to the district court.6
¶5 The district court heard the matter on
August 16, 2012. Although Pierce did not dispute the procedures or results of the tests and
investigation, he did argue that his constitutional right to a speedy resolution of the cause,
as guaranteed by the Okla. Const. art. 2, §6,7
was denied. The trial court agreed and reversed
and vacated Pierce’s driving prohibition, reinstating his drivers’ license. Over a vigorous
dissent, the majority of the Court of Civil
Appeals reversed.
¶6 Pierce filed a petition for rehearing before
the Court of Civil Appeals which was denied
on December 13, 2013. Thereafter, the driver
filed a timely petition for certiorari on January
2, 2014. The Department filed for an extension
to respond thereto. The response was received
on February 3rd to which Pierce replied on the
13th. The record was received from the Court
of Civil Appeals on March 25, 2014. Certiorari
was granted the same day.
Constitutional issues are subject to
de novo review.
¶7 Whether an individual’s procedural due
process rights have been violated is a question
of constitutional fact which is reviewed de
novo.8 De novo review requires an independent,
non-deferential re-examination of the administrative agency’s legal rulings.9
¶8 The right to a speedy and certain remedy
without delay, in a civil proceeding, is one of
the rights enjoyed by Oklahoma citizens,10
including drivers having a recognized property
interest11 in the license that allows them to travel
freely through the utilization of an automotive
vehicle. In determining whether Pierce suffered
a deprivation of that right in this civil proceeding, we consider four factors: 1) the length of the
delay; 2) the reason for the delay; 3) the party’s
assertion of the right; and 4) the prejudice to the
party occasioned by the delay.12
¶9 Under the unique facts presented, the
twenty (20) month delay in scheduling an
administrative hearing violated the driver’s
right to a speedy trial guaranteed by the
Okla. Const. art. 2, §6.
¶10 a) The Department had a sufficient
period of time, between five and eight
months, to either present the arresting
1203
officer to testify or to secure his testimony in
some other appropriate manner.
and a maximum of eight (8) months to complete the appeal.
¶11 The Department asserts that its delay of
some twenty (20) months in scheduling a
revocation proceeding in the instant cause is
justified, largely on an argument that its complaining witness was unavailable. Pierce
points out that for a minimum of five (5)
months following his being detained, the arresting officer was easily available to testify in a
proceeding in Cleveland County and could have
been made available, on an emergency basis, for
the following three months.13 In an alternative
argument, the Department insists that budgetary and personnel matters kept it from setting
Pierce’s revocation hearing at an earlier date.
The Department’s arguments are unconvincing.
¶15 The ultimate responsibility for the
delay was the Department’s deliberate action
in postponing the cause. Such a delay weighs
heavily against the governmental entity responsible for the same.17 This matter could have
been resolved during a time period when the
arresting officer was available to appear in person. Even were that not so, the arresting officer’s testimony could have been preserved in
some appropriate manner or he could have
appeared telephonically. Therefore, under the
facts presented, the delay between arrest and
the administrative hearing was unreasonable.
¶12 The most troubling factor in this cause is
the one that the trial court recognized, a delay
of some twenty (20) months when, for a period
of some eight (8) months, the Department’s
witness was available and able to testify either
in person or telephonically. Originally, the
Department blamed the delay on budget cuts,
limited personnel, and the number of DUI’s
being filed.14 This argument makes the Department’s assertion that the delay was “totally . . .
due to the unavailability of the witness” less
than convincing.15
¶13 b) The delay in scheduling of an
administrative hearing rests entirely with
the Department.
¶14 All the facts indicate that the driver acted
in a timely fashion from the date of his arrest
until the time of filing for certiorari to have this
matter resolved at the first opportunity. However, the Department, on February 8, 2011,
three months before the arresting officer actually left the United States and two months
after the Department received the results of
Pierce’s blood tests, asked the arresting officer
to compile a list of cases which needed to be
postponed because he would be the testifying
witness. In so doing, the Department advised
the arresting officer’s supervisor that the
appeal to the district court might be heard
three months in the future.16 Clearly, at least in
this case, if the Department had acted promptly in hearing the matter, i.e. by filing the cause
shortly after having received the blood level
evidence, absence of the arresting officer for
appeal purposes would have presented no
problem as this would have afforded the
Department a minimum of five (5) months
1204
¶16 c) Pierce’s failure to assert the right to a
speedy trial prior to review before the
district court did not prohibit that tribunal,
or this Court, from reviewing a
constitutional challenge on appeal which is
vested with strong public policy concerns for
the state and for drivers.
¶17 The Department insists that the trial
court was without jurisdiction to hear the
speedy trial argument as it was not presented
in the initial hearing in the administrative process. Pierce argues that he had no obligation to
raise the claim as the law makes the assertion for
him. Although the driver’s underlying argument is not appropriate here,18 we agree with
Pierce that the trial court had jurisdiction to
determine the speedy trial claim. The failure to
specifically assert the right can make it difficult
to prove a denial of a speedy trial.19 Nevertheless, it is unquestioned that Pierce requested an
administrative hearing less than twenty-four
(24) hours after he was arrested. Furthermore,
we agree with Pierce that it would have been
appropriate for the trial court to have heard
and determined the speedy trial issue, while
the arresting officer was in the United States
and before he was deployed to Kuwait.
¶18 Title 67 O.S. 2011§754(F)20 outlines the
scope of the hearing by either the Commissioner of Public Safety or a designated hearing
officer. Nothing in the statute provides for the
Commissioner of Public Safety or the designated hearing officer to hear constitutional
challenges. Furthermore, it has long been recognized that public interest issues may be considered on appeal upon a theory not presented
to the trial court.21 Most certainly, the right to a
speedy and certain remedy without delay, in a
civil proceeding, is one of the rights enjoyed by
Vol. 85 — No. 15 — 5/24/2014
the citizens of Oklahoma.22 This Court has also
determined that a person’s claim to a driver’s
license is indeed a protected property interest
entitled to application of due process standards.23 No doubt, the interest of the states in
depriving drunk drivers of permission to continue operating an automobile is particularly
strong.24
¶19 Finally, there is a strong public interest in
ensuring that drunk drivers are not on our
highways and byways and that drivers are
afforded constitutional protections to ensure
that their property interests, in the form of
drivers’ licenses, are honored. We determine
the trial court had authority to address the
deprivation issue as presented in the form of
an argument encasing the issue of deprivation
of the right to a speedy trial.
¶20 d) Undoubtedly, the driver suffered
some prejudice simply because the state of
his driving privileges, though not revoked,
remained in limbo for almost two years.
¶21 The Department insists that, because
Pierce did not testify or present any “direct”
evidence of prejudice, his speedy trial claim
must fail. Conversely, Pierce argues that living
under the cloud of concern that he was in danger of losing a property interest and having his
driving privileges revoked was, in itself, evidence of prejudice. Although this may not be
the most clear case of delay causing prejudice,
under the facts presented, the potential loss of
a property interest is sufficient to meet this
prong of the four-part test of deprivation of the
right to a speedy trial.
¶22 The delay here was neither minimal nor
reasonable. The delay, no element of which
was under the control of the driver, spanned
almost two (2) years.25 The Department had a
sufficient time between the arrest and the date
its material witness would be unavailable to
either hold the hearing or preserve the arresting officer’s testimony. The failure to hold a
timely hearing most certainly contravened the
Legislature’s intent that these matters be handled in a timely manner.26
CONCLUSION
¶23 Minimum standards of due process27
require administrative proceedings that may
directly and adversely affect legally protected
interests be preceded by notice calculated to
provide knowledge of the exercise of adjudicative power and a meaningful opportunity to be
Vol. 85 — No. 15 — 5/24/2014
heard.28 Delay without motive may be insufficient to demonstrate a deprivation of due process.29 However, in and of itself, delay can
result in a due process denial.30 Fundamental
notions of justice, fair play, and decency are
offended when actual prejudice is demonstrated from an unreasonable delay.31
¶24 Research reveals that the resolution of
the question presented is largely governed by
the facts of the cause.32 Limbo serves no one
well when a property interest hangs in the balance.33 Delay, in and of itself, can result in a due
process denial.34 Pierce showed at least some
prejudice because of the delay. The Department showed none for its intentional postponement of the proceedings for some twenty
(20) months.35 Pierce lived under the cloud of a
pending revocation proceeding for approximately twenty (20) months. Knowing that its
complaining witness was scheduled to be
deployed to serve his country, the Department
intentionally postponed the proceeding and
did not schedule a hearing to allow the driver
to be heard either on the merits or on the delay.
The Department took these actions although
the arresting officer would have been available
for a hearing during the five (5) months preceding his deployment and during an additional three (3) months of training. Furthermore, it delayed the hearing for more than a
month after the officer returned stateside.
These delays occurred despite the driver’s
timely request for a hearing. Under these
unique facts, we hold that the driver’s right to
a speedy hearing, guaranteed by the Okla.
Const. art. 2, §6,36 was violated and order reinstatement of his driving privileges.
COURT OF CIVIL APPEALS OPINION
VACATED; TRIAL COURT AFFIRMED.
COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, COMBS, JJ. - CONCUR
WINCHESTER, TAYLOR, GURICH, JJ. - DISSENT
KAUGER, J. - NOT PARTICIPATING
WATT, J.:
1. The Court of Civil Appeals issued opinions in the two companion cases, both of which were reversed and remanded to the trial court
for consideration of all factors related to the issue of whether a constitutional right to a speedy trial was violated. See, ¶8 and accompanying
footnotes, infra. See, No. 111,420, Macey v. State of Oklahoma ex rel. Dept.
of Public Safety, (November 15, 2013) [Mandate issued December 13,
2013]; No. 111,419, Irlando v. State of Oklahoma ex rel. Dept. of Public
Safety (November 15, 2013) [Mandate issued on November 15, 2013].
2. The Okla. Const. art. 2, §6 provides:
1205
“The courts of justice of the State shall be open to every person,
and speedy and certain remedy afforded for every wrong and
for every injury to person, property, or reputation; and right
and justice shall be administered without sale, denial, delay or
prejudice.”
Although the United States Const. does not have a constitutional provision identical to art. 2, §6, the Sixth Amendment guarantees the right
to a speedy and public trial, providing in pertinent part:
“In criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial . . .”
3. See, ¶4 and accompanying footnotes, infra.
4. Title 47 O.S. 2011 §754(D) providing in pertinent part:
“Upon the written request of a person whose driving privilege
has been revoked or denied by notice given in accordance with
this section or Section 2-116 of this title, the Department shall
grant the person an opportunity to be heard if the request is
received by the Department within fifteen (15) days after the
notice. . . .”
5. Transcript of proceedings, August 16, 2012, Officer Justin Hewett
testifying in pertinent part:
at pp. 33-34
“. . . Q. Do you recall when you left [the United States]?
A. I left for Fort Sill in March. I left for Mississippi in April. And
I arrived in Kuwait in July of - all in 2011. . . .”
at p.37
“. . . THE COURT: So you were available until at least March of
2011, and could have been available, I guess, on an emergency
basis until you actually left the country?
THE WITNESS: Correct. . . .”
6. Title 47 O.S. 2011 §755 providing in pertinent part:
“If the revocation or denial is sustained, the person whose
license or permit to drive or nonresident operating privilege has
been revoked or denied may file a petition for appeal in the district court in the manner and subject to the proceedings provided
for in Section 6-211 of this title. . .”
Title 47 O.S. 2011 §6-211 providing in pertinent part:
“A. Any person denied driving privileges, or whose driving
privilege has been cancelled, denied, suspended or revoked by
the Department . . . shall have the right of appeal to the district
court as hereinafter provided. . . .
E. The petition shall be filed within thirty (30) days after the
order has been served upon the person, except a petition relating
to an implied consent revocation shall be filed within thirty (30)
days after the Department gives notice to the person that the
revocation is sustained . . . It shall be the duty of the district court
to enter an order setting the matter for hearing not less than fifteen (15) days and not more than thirty (30) days from the date
the petition is filed. . . .
M. An appeal may be taken by the person or by the Department
from the order or judgment of the district court to the Supreme
Court of the State of Oklahoma as otherwise provided by law.”
7. The Okla. Const. art. 2, §6, see note 2, supra.
8. Matter of A.M. and R.W., 2000 OK 82, ¶6, 13 P.3d 484.
9. Id.; Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996
OK 125, fn. 1, 932 P.2d 1100.
10. State of Oklahoma ex rel. Oklahoma Bar Ass’n v. Maddox, see
note 22, infra; Flandermeyer v. Bonner, see note 22, infra; Meadows v.
Meadows, see note 22, infra.
11. Price v. Reed, see note 23, infra.
12. State of Oklahoma ex rel. Oklahoma Bar Ass’n v. Mothershed,
2011 OK 84, ¶64, 264 P.3d 1197; Flandermeyer v. Bonner, see note 22,
infra, explaining Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 2192, 33
L.Ed.2d 101 (1973) and citing Civil Serv. Comm’n of the City of Tulsa
v. Gresham, see note 22, infra.
13. See, ¶4 and accompanying footnotes, supra.
14. Transcript of Proceedings, August 16, 2012, Ms. Murray arguing before the trial court at pp. 22 and 25:
“. . . MS. MURRAY: Your Honor, may I please make my argument
for the record?
THE COURT: Yes.
MS. MURRAY: Thank you. There is no right to a speedy trial in a
civil case. . . .
[W]e have only a certain budget and a finite number of employees, but we have zero control over the number of drunk drivers
in the State of Oklahoma and over the number of officer arrests
of those drunk drivers. . . .
[T]here’s so many DUIs in the state that DPS can’t keep up. . . .”
15. Transcript of Proceedings, August 16, 2012, Ms. Murray’s
response to the trial court’s inquiry providing in pertinent part at p. 28:
“. . . THE COURT: What I’m trying to find out ma’am, is this: Was
the reason for the delay in the hearing due to the unavailability
1206
of the witness, the officer, or was it due to the unavailability of
time to hear it?
MS. MURRAY: In this case, it would have totally been due to
the unavailability of the witness. The witness in this case . . .”
[Emphasis provided.]
16. Transcript of Proceedings, August 16, 2012, Sergeant John
Bishop testifying in pertinent part at pp. 44-45:
“. . . Q (By Mr. Stockwell) Sergeant Bishop, those two pieces of
paper you gave me, one is a full document, the other just has
writing on the very top. Would you — referring to that, would
you read that into the record, please. And when you do that,
indicate who it’s from and who it’s to.
A. Okay. I’ll do it in chronological order. I think that’ll help. It’s
communication from DeAnn Taylor to Officer Justin Hewett on
Tuesday, February 8th at 1306 or 1:06 p.m.
The e-mail says, To Justin, please send me a list of all cases, if any,
that you are current — that you currently have pending that we
need to continue at the administrative level. And it’s signed
DeAnn Taylor.
Q. That was February 8, 2011?
A. Yes, sir. February 8, 2011.
Justin Hewett responds to DeAnn Taylor, DeAnn, here are the
remaining implied consent hearings before I deploy. And he list
off one, two, three, four, five, six, seven cases, and it’s signed
Justin Hewett.
And then DeAnn copied Justin Hewett, myself, and another
supervisor as she addressed Justin Hewett or as she addressed a
person, Tammy West, I believe, from DPS, and that correspondence
says, Tammy, here’s a list of the IC, implied consent, hearings that
we need to be continued. The hearings are not to be reset until we
receive notification that Justine is back from deployment and able
to handle the hearings. And it’s signed DeAnn.
Q. Did you have any communication with DeAnn Taylor regarding why continue the hearings and not just have them now?
A. Yeah. We — I was trying to keep an open communication with
all the courts and DeAnn, and I spoke about why we were continuing the hearings. And she advised that if the hearing — the
implied consent hearing was set and it went to a district court
appeal, that the district court appeal could be up to three months
away depending on their log, and the witnesses would be
unavailable to testify and they would have to have that witness
to testify after the implied consent hearing. . . .”
17. Ellis v. State, 2003 OK CR 18, ¶47, 76 P.3d 1131.
18. Generally, the law will make assertion if the party is incarcerated. See, State of Oklahoma ex rel. Trusty v. Graham, 1974 OK CR 146,
525 P.2d 1231; Davidson v. State, 1946 OK CR ___, 171 P.2d 640.
19. Barker v. Wingo, see note 12, supra.
20. Title 67 O.S. 2011§754(F) provides:
“The hearing before the Commissioner of Public Safety or a designated hearing officer shall be conducted in the county of arrest
or may be conducted by telephone conference call. The hearing
may be recorded and its scope shall cover the issues of whether
the officer had a reasonable ground to believe the person had
been operating or was in actual physical control of a vehicle
upon the public roads, highways, streets, turnpikes or other
public place of this state while under the influence of alcohol,
any other intoxicating substance, or the combined influence of
alcohol and any other intoxicating substance as prohibited by
law, and whether the person was placed under arrest.
1. If the revocation or denial is based upon a breath or blood test
result and a sworn report from a law enforcement officer, the
scope of the hearing shall also cover the issues as to whether:
a. if timely requested by the person, the person was not denied a
breath or blood test,
b. the specimen was obtained from the person within two (2)
hours of the arrest of the person,
c. the person, if under twenty-one (21) years of age, was advised
that driving privileges would be revoked or denied if the test result
reflected the presence of any measurable quantity of alcohol,
d. the person, if twenty-one (21) years of age, was advised that
driving privileges would be revoked or denied if the test result
reflected an alcohol concentration of eight-hundredths (0.08) or
more, and
e. The test result in fact reflects the alcohol concentration.
2. If the revocation or denial is based upon the refusal of the
person to submit to a breath or blood test, reflected in a sworn
report by a law enforcement officer, the scope of the hearing shall
also include whether:
a. the person refused to submit to the test or tests, and
Vol. 85 — No. 15 — 5/24/2014
b. the person was informed that driving privileges would be
revoked or denied if the person refused to submit to the test or
tests.”
21. Starkey v. Oklahoma Dept. of Corrections, 2013 OK 43, fn. 30,
305 P.3d 1004; Davis v. GHS Health Maint. Org. Inc., 2001 OK 3, ¶25, 22
P.3d 1204. See also, Simons v. Brashears Transfer & Storage, 1959 OK
156, ¶24, 344 P.2d 1107.
22. State of Oklahoma ex rel. Oklahoma Bar Ass’n v. Maddox, 2006
OK 95, fn. 11, 152 P.3d 204; Flandermeyer v. Bonner, 2006 OK 87, ¶11,
152 P.3d 195; Meadows v. Meadows, 1980 OK 158, ¶7, 619 P.2d 598. See
also, Civil Service Commission of the City of Tulsa v. Gresham, 1982
OK 125, ¶¶38-40, 653 P.2d 920.
23. Price v. Reed, 1986 OK 43, ¶19, 725 P.2d 1254.
24. Illinois v. Batchelder, 463 U.S. 1112, 103 S.Ct. 3513, 3516, 77
L.Ed.2d 1267 (1983); Price v. Reed, see note 23, supra. Argument before
the trial court in Irlando v. Commissioner of the Dept. of Public Safety,
No. 111,419, provided that there are some thirty-thousand (30,000)
arrests for driving under the influence in Oklahoma annually, and that
ten-thousand (10,000) of those cases go through the administrative
hearing process. Transcript of Partial Proceedings, July 30, 2012, p. 14.
25. See, State ex rel. Oklahoma Bar Ass’n v. Mothershed, note 12,
supra [Six-month delay in holding trial panel hearing did not violate
attorney’s constitutional right to a speedy trial in a civil proceeding.].
26. The short-fuse time limits the Legislature imposes upon the
plaintiffs in revocation proceedings indicates that it intended that these
matters be dealt with judiciously so that those driving under the influence on Oklahoma’s byways and highways could be quickly stopped
from continuing with such practices. See, 47 O.S. 2011 §754(D), note 4,
supra, giving a driver fifteen (15) days to request a hearing before the
Department. See also, 47 O.S. §6-211, giving drivers thirty (30) days to
file an appeal from a revocation and requiring the district court to set
a hearing within fifteen (15) days and not more than thirty (30) days
from the date of the petition.
27. United States Const. amend. 14, §1 providing in pertinent
part:
“. . . No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
The Okla. Const. art. 2, §7 provides:
“No person shall be deprived of life, liberty, or property, without
due process of law.”
Oklahoma’s due process clause is coextensive with its federal counterpart and may, in some situations, afford greater due process protections than its federal counterpart. State ex rel. Board of Regents of the
University of Oklahoma v. Lucas, 2013 OK 14, fn. 25, 297 P.3d 378;
Oklahoma Corrections Professional Ass’n, Inc. v. Jackson, 2012 OK 53,
fn. 13, 280 P.3d 959.
28. Dulaney v. Oklahoma State Dept. of Health, 1993 OK 113, ¶9,
868 P.2d 676; Harry R. Carlile Trust v. Cotton Petroleum, 1986 OK 16,
¶¶12-14, 732 P.3d 438, cert. denied, 483 U.S. 1021, 107 S.Ct. 3265, 97
L.Ed.2d 764 (1987); Cate v. Archon Oil Co., 1985 OK 15, ¶7, 695 P.2d
1352.
29. Wright v. State of Oklahoma, 2001 OK CR 19, ¶¶13-14, 30 P.3d
1148.
30. DeLancy v. Caldwell, 741 F.2d 1246 (10th Cir. 1984).
31. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 2049, 52
L.Ed.2d 752 (1977), rehearing denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.
Ed.2d 164 (1977); Thomas v. State of Oklahoma, 1989 OK CR 37, ¶17,
777 P.2d 1366.
32. State v. Steigelman, 2013 MT 153, 302 P.3d 396 [426-day delay
not violation of right to speedy trial.]; State v. Stops, 2013 MT 131, 301
P.3d 811 [740 days not too long when defendant responsible for
delays.]; Rodgers v. State, 2011 WY 158, 265 P.3d 235 [180-day delay not
unreasonable delay of speedy trial when delays caused by defendant.];
Seteren v. State, 2007 WY 144, 167 P.3d 20 [5-year delay not prejudicial
to speedy trial rights where reason was full docket.]; Flandermeyer v.
Bonner, see note 22, supra [One-year delay of an estimated one-day
trial did not implicate speedy trial constitutional concerns where
delays were more attributable to the actions of parties than to trial
court.]; State v. Superior Court, 162 Ariz. 302, 783 P.2d 241 (1989) [120
day delay not violation of right to speedy trial where defendant incarcerated.]; Ward v. State, ___ Ga.App. ___, ___ S.Ed.2d ___, 2014 WL
815379 (2014) [Six-year delay not too long where right to speedy trial
not persevered.]; State v. Johnson, 325 Ga.App. 128, 749 S.E.2d 828
(2013) [Delay of 33 months presumptively prejudicial.]; State v. Takyi,
314 Ga.App. 444, 724 S.E.2d 459 (2013) [18-month delay was unreasonable delay against State.]; Sechler v. State, 316 Ga.App. 675, 730 S.E.2d
142 (2012) [44-month delay uncommonly long and required to be
weighed against state.].
Vol. 85 — No. 15 — 5/24/2014
33. State of Oklahoma ex rel. Oklahoma Bar Ass’n v. Maddox, see
note 22, supra.
34. DeLancy v. Caldwell, 741 F.2d 1246 (10th Cir. 1984).
35. Under such facts, a delay of fifteen (15) months in a criminal
proceeding was found to be inordinately unreasonable. State ex rel.
Trusty v. Graham, see note 18, supra.
36. The Okla. Const. art. 2, §6, see note 2, supra.
2014 OK 38
GLENHURST HOMEOWNERS
ASSOCIATION, INC., Plaintiff-Appellee, v.
XI FAMILY TRUST, XIANG YU REN,
TRUSTEE, Defendants-Appellants.
Appeal No. 110,574 (consolidated with
Appeal No. 110,838 for purposes of
published opinion). May 6, 2014
CERTIORARI TO THE COURT OF CIVIL
APPEALS, DIVISION IV, ON APPEAL
FROM OKLAHOMA COUNTY
¶0 Homeowners association filed an action
against homeowner for breach of real property
covenants and sought to have homeowner
remove nonconforming shingles and install
shingles of the appropriate color. After denying a continuance request from homeowner,
the trial court granted summary judgment to
the homeowners association. Upon review of
the record, we find the trial court’s denial of
the continuance deprived homeowner of a reasonable opportunity to properly respond to the
homeowners association’s motion for summary judgment and summary judgment should
not have been granted.
COCA OPINION IN APPEAL NO. 110,574
VACATED; COCA OPINION IN APPEAL
NO. 110,838 VACATED; CAUSE REVERSED
AND REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
TODAY’S PRONOUNCEMENT
Robert T. Keel, Robert T. Keel Law Firm, Oklahoma City, Oklahoma, Attorney for Appellants
Matthew L. Winton, Vaughn, Winton & Clark
PLLC, Edmond, Oklahoma, Attorney for
Appellee
GURICH, J.,
Facts & Procedural History
¶1 Glenhurst Homeowners Association
(“HOA”) filed an action against Xi Family
Trust and Xiang Yu Ren (“homeowner”), for
breach of real property covenants. The HOA’s
Petition argued that the covenant for the Glenhurst Addition required all houses built in the
1207
neighborhood to have roofs that were the
weathered wood color.1 After a hail storm in
2010, homeowner hired a contractor to replace
his roof and told the contractor to put the most
energy efficient shingles on the house. The contractor did not put weathered wood colored
shingles on the house. In its Petition, the HOA
asked the trial court for an injunction, requiring homeowner to remove the nonconforming
shingles and install shingles of weathered
wood color.
¶2 Homeowner failed to file an answer in the
case, and the trial court granted a default judgment against him. Subsequently, homeowner’s
attorney filed a motion to vacate, but the motion
to vacate was denied by the trial court. Homeowner appealed, and COCA reversed, finding
that homeowner had met the burden of showing
excusable neglect and that the trial court should
have vacated the default judgment. Glenhurst
Homeowners Ass’n Inc., v. Xi Family Trust, Xiang Yu Ren, Trustee, Case No. 109,645 (Nov. 22,
2011) (unpublished). The case was remanded to
the trial court for further proceedings.
¶3 After remand, the HOA filed a motion for
summary judgment. The record reflects that
homeowner’s counsel was out of the country
when the HOA filed its motion for summary
judgment. Substitute counsel for homeowner,
rather than moving for a continuance, filed a
response to the HOA’s motion for summary
judgment. The response recited facts and allegations totally unrelated to the case. The record
indicates the response filed by substitute counsel was actually a response from another case
in which homeowner was involved. Upon
returning to the country, homeowner’s counsel
realized the error and moved the trial court for
a continuance so he could file a proper response.2
The trial court denied the continuance and
granted summary judgment.
¶4 Shortly after the trial court granted summary judgment in favor of the HOA, the HOA
moved for attorney’s fees pursuant to 60 O.S. §
856, Cebuhar v. Bovaird, 2003 OK CIV APP 19,
67 P.3d 348, and Goss v. Mitchell, 2011 OK CIV
APP 74, 259 P.3d 886, and costs pursuant to 12
O.S. § 927 and 942. On June 1, 2012, the trial
court granted attorney’s fees, finding that “[a]s
prevailing party, Plaintiff is entitled to an
award of attorney’s fees and costs in the litigation.” The trial court awarded $7,310.50 in
attorney’s fees and $314.00 in costs.3
1208
Appeal No. 110,574 and Appeal No. 110,838
Are Consolidated for Purposes of
Published Opinion
Appeal No. 110,574
¶5 Homeowner appealed the trial court’s
order granting summary judgment to the HOA.
On appeal COCA acknowledged:
The trial court should have granted Homeowner’s request for a continuance to permit a proper response to be filed. The grant
of summary judgment coming one day
after Homeowner’s motion could be construed as either a denial of the motion or an
oversight by the trial court in not addressing the motion before it. Normally, in either
event, this Court would remand the matter
to the trial court with directions to afford
the Homeowner an opportunity to file an
answer addressing the facts and assert any
relevant defenses. However, in the interest
of judicial economy, we do not do so in
light of the undisputed facts and the applicable law.
¶6 COCA affirmed summary judgment in
favor of the HOA, finding that despite the
error by the trial court, the law was clear that
homeowner was under statutory, constructive
notice of the covenant when he bought the
house, so the HOA was entitled to judgment as
a matter of law. The dissenting judge argued
judicial economy did not justify the acknowledged trial court error. The COCA opinion in
Appeal No. 110,574 was entered on August 16,
2012. On August 24, 2012, the HOA filed a
Motion for an Award of Appellee’s Appeal
Related Attorneys’ Fees. On September 10,
2012, COCA granted the motion and remanded
the matter to the trial court to determine the
amount of said fees. On September 5, 2012,
homeowner petitioned this Court for certiorari
review of the COCA opinion. We granted
review on October 29, 2012.
¶7 In Bookout v. Great Plains Regional Medical Center, 1997 OK 38, ¶ 2, 939 P.2d 1131, 1133,
a widow brought a negligence and wrongful
death suit against Great Plains Regional Medical Center after her husband died while recovering from surgery. The Medical Center filed a
motion for summary judgment attaching evidentiary materials in support of its motion. Id.
The widow requested a continuance insisting
she had recently replaced her attorney and had
not had adequate time for discovery to identify
all of the material fact issues. Id. ¶ 3, 939 P.2d
Vol. 85 — No. 15 — 5/24/2014
at 1133. At the hearing to consider the continuance, the widow informed the trial court she
had contacted two experts and would provide
her experts’ affidavits and properly respond to
the motion for summary judgment if given two
additional days. Id. ¶ 4, 939 P.2d at 1133. The
trial judge denied the motion for continuance
and entered summary judgment for the Medical Center and against the widow. COCA
affirmed. This Court held that the trial court
abused its discretion when it denied the widow
a two-day continuance to respond to the Medical Center’s motion for summary judgment. Id.
¶ 16, 939 P.2d at 1135.
¶8 In Bookout, we stated:
The prompt trial and determination of
cases in court is most commendable, but
when a trial is forced with such dispatch as
to result in depriving an interested party of
reasonable opportunity to prepare for trial,
and secure witnesses; and the whole circumstances are such as to convince that
there was an abuse of judicial discretion, it
is the duty of this court to reverse.4
See also Cornett v. Carr, 2013 OK 30, ¶ 13, 302
P.3d 769, 773 (“While it is true that diligence of
litigants in attending to their matters pending
in the courts is of importance, and while it is a
significant function of the courts that the litigation before them be determined and disposed
of as rapidly as possible, it is also important
that all litigants be given a reasonable opportunity to have their day in court, and to have
their rights and liberties tried upon the merits. The latter is and should be the primary
right of the parties and duty of the courts.”)
(emphasis added).
¶9 In this case, the trial court abused its discretion in not allowing homeowner time to file
a proper response to the HOA’s Motion for
Summary Judgment. The record is clear that
counsel for homeowner was out of the country
when the response to summary judgment was
due. Substitute counsel for homeowner filed a
response that contained facts from another case
in which homeowner was involved and which
was totally unrelated to the present case. Upon
returning to the country, homeowner’s counsel
realized the error and promptly moved the
trial court for a continuance to file a proper
response.
¶10 By denying the continuance, the trial
court deprived homeowner of a reasonable
opportunity to respond. COCA acknowledged
Vol. 85 — No. 15 — 5/24/2014
as much, and under Bookout, had a duty to
reverse and remand the case to allow homeowner an opportunity to properly respond to
the HOA’s Motion for Summary Judgment.
The COCA opinion in Appeal No. 110,574 is
vacated, and the trial court’s order granting
summary judgment in favor of the HOA is
reversed. The order entered on September 10,
2012, granting the HOA’s Motion for an Award
of Appellee’s Appeal Related Attorneys’ Fees is
also vacated.
Appeal No. 110,838
¶11 The homeowner also appealed the trial
court’s order awarding attorney’s fees and
costs. On December 31, 2013, COCA, in an
unpublished opinion affirmed the award of
costs but reversed the trial court’s award of
attorney’s fees. COCA found that 60 O.S. § 856
required the HOA to prove it was a “person
owning property” in the development to recover
attorney’s fees and that there was “no showing
in this record that the suit was brought by a ‘person owning property’ in the development.”5
COCA also rejected the HOA’s argument that
the contractual covenant between the HOA and
homeowner provided a basis for an attorney’s
fee. COCA held that although the “Declaration
of Glenhurst Section 3, Article 7, Section 1,
which is partially cited in GHOA’s appellant
answer brief, may have provided a basis for a
fee, such argument is rejected for several reasons: It was not pled as the basis for an attorney’s fee at trial; it was not produced for
examination at trial, according to the appellate
record; and finally, it was raised for the first
time on appeal.” The HOA petitioned this
Court for certiorari review of the COCA opinion. We granted certiorari on March 31, 2014.
¶12 Because we reverse summary judgment
in favor of the HOA, we decline to address
whether either party would be entitled to attorney’s fees under 60 O.S. § 856, the contractual
covenant between the HOA and homeowner,
or any other statutory or contractual provision.
Any decision at this point would be advisory
as both parties, on remand, will have the
opportunity to supplement the record. The
COCA opinion in Appeal No. 110,838 is vacated, and the trial court’s order granting attorney’s fees and costs is also vacated.
COCA OPINION IN APPEAL NO. 110,574
VACATED; COCA OPINION IN APPEAL
NO. 110,838 VACATED; CAUSE REVERSED
AND REMANDED FOR FURTHER
1209
PROCEEDINGS CONSISTENT WITH
TODAY’S PRONOUNCEMENT
¶13 COLBERT, C.J., REIF, V.C.J., KAUGER,
WATT, EDMONDSON, TAYLOR and GURICH,
JJ. - CONCUR
¶14 WINCHESTER and COMBS, JJ. - DISSENT
GURICH, J.,
1. Record on Appeal in Case No. 110,574, Petition at 2.
2. Counsel for homeowner filed a Motion for Continuance on
March 8, 2012, and advised the Court of his circumstances, noted that
the Plaintiff’s pending Motion for Summary Judgment had not been
continued before, and requested 15 days to respond to the motion. Counsel for the HOA did not respond in writing. The Plaintiff’s Motion for
Summary Judgment was sustained on March 9, 2012. The Journal Entry,
which was signed and filed on March 9, 2012, contained no ruling by the
trial court on the homeowner’s request for a continuance.
3. Record on Appeal in Case No. 110,838 at 29.
4. Id. ¶ 11, 939 P.2d at 1134 (emphasis added).
5. COCA also rejected the HOA’s argument that 68 O.S. § 852(C)
and § 854 expand the definition of who may seek an attorney’s fee
under § 856. COCA found the supporting authorities cited by the HOA
were inapplicable and declined to adopt the reasoning in Whitehall
Homeowner’s Association, Inc. v. Appletree Enterprise Inc., Chad Hui
Zhu, 2013 OK CIV APP 77, 309 P.3d 144, which awarded an attorney’s
fee to an HOA pursuant to 60 O.S. § 856.
2014 OK 39
CHESTER ROUSE, Plaintiff/Appellant, v.
GRAND RIVER DAM AUTHORITY and
DANIEL S. SULLIVAN, Defendants/
Appellees.
No. 112,058. May 13, 2014
APPEAL FROM THE DISTRICT COURT OF
MAYS COUNTY
HONORABLE TERRY H. McBRIDE
¶0 Discharged employee sued the Grand
River Dam Authority and its chief executive
officer alleging wrongful termination. The trial
court dismissed the suit for failure to state a
claim upon which relief could be granted, ruling (1) sovereign immunity barred employee’s
claim based on the federal Fair Labor Standards Act and (2) the Oklahoma Whistleblower
Act provided employee’s remedy for the
alleged wrongful termination, not state tort
law. Employee appealed and this Court retained
the appeal.
DISMISSAL AFFIRMED.
James C. Thomas, William D. Thomas, THOMAS LAW FIRM PLC, Tulsa, Oklahoma, Attorneys for Plaintiff/Appellant,
J. Heath Lighten, Grand River Dam Authority,
Vinita, Oklahoma, Attorney for Defendants/
Appellees.
1210
REIF, V.C.J.:
¶1 On February 25, 2013, Chester Rouse filed
a wrongful termination suit against the Grand
River Dam Authority (GRDA) and Daniel S.
Sullivan. The petition alleged GRDA and Mr.
Sullivan terminated Mr. Rouse on February 17,
2012, in retaliation for filing an overtime complaint under the Fair Labor Standards Act
(FLSA), 29 U.S.C. § 201 through § 219. Retaliation for filing such a complaint is forbidden by
section 215(a)(3) and is actionable under section 216(b). Mr. Rouse also alleged the termination of his employment for filing this complaint
violated Oklahoma public policy protecting
whistleblowers who make external reports of
unlawful activity by their employers.
¶2 GRDA and Mr. Sullivan filed a motion to
dismiss for failure to state a claim upon which
relief can be granted. The motion to dismiss
argued (1) sovereign immunity barred suit
against GRDA and Mr. Sullivan on the federal
claim and (2) Mr. Rouse had a remedy under
the Oklahoma Whistleblower Act and, therefore, a tort claim was not available to protect
the public policy that encourages reports of
unlawful activity by employers.
¶3 The trial court granted the motion to dismiss and Mr. Rouse appealed. We retained this
appeal and, upon review, affirm the dismissal.
¶4 When reviewing a motion to dismiss for
failure to state a claim, the allegations in the
petition must be taken as true. Indiana National
Bank v. State of Oklahoma Department of Human
Services, 1994 OK 98, ¶ 3, 880 P.2d 371, 375.
Applying this rule to the petition in the case at
hand establishes certain dispositive facts that
dictate Mr. Rouse has failed to state a claim
upon which relief can be granted.
¶5 The first dispositive fact of consequence is
Mr. Rouse’s status as an employee of GRDA at
the time he made the overtime complaint. The
other dispositive facts concern GRDA’s status,
Mr. Sullivan’s status and Mr. Sullivan’s actions.
¶6 By statute, “employees of [GRDA] are
both classified and unclassified state employees
subject to the same benefits and restrictions
applicable to all state agencies except as otherwise provided by statute.” 82 O.S.2011, § 861A
(emphasis added). This same statute also states
“[GRDA] is a nonappropriated agency of the
State of Oklahoma . . . subject to the laws of the
state as they apply to state agencies except as
specifically exempted by statute.” Id.
Vol. 85 — No. 15 — 5/24/2014
¶7 The Legislature has expressly provided
that “The Grand River Dam Authority shall be
under the Merit System,” 74 O.S.2011, § 8405.7(A). The Oklahoma Whistleblower Act, 74
O.S.2011, § 840-2.5 applies to “any state employee” aggrieved pursuant to the Act, and provides
for proceedings before the Merit Protection Commission to seek relief for an alleged violation of
the Act. In fact, the Legislature has specially
charged the Merit Protection Commission with
responsibility to enforce the Whistleblower
Act. 74 O.S.2011, § 840-2.6 Neither GRDA nor
its employees are specifically exempted from
the Whistleblower Act.
¶8 As a “state employee,” Mr. Rouse’s conduct in filing the overtime complaint was protected by § 840-2.5(B) (2) of the Act. This Court
has previously held that the remedies and penalties provided by the Whistleblower Act are
adequate to protect the public policy of encouraging state employees to report wrongdoing
and, therefore, a tort claim for discharge in violation of public policy is not available to a discharged whistleblower employee. Shephard v.
CompSource Oklahoma, 2009 OK 25, ¶ 12, 209
P.3d 288, 293.
¶9 As concerns GRDA’s status for purposes
of sovereign immunity, we observe that the
statute creating GRDA states, in pertinent part,
“[GRDA] shall be, and hereby is declared to be,
a governmental agency of the State of Oklahoma, body politic and corporate, with powers of
government . . .” 82 O.S.2011, § 861. This Court
has previously held that GRDA’s status as “a
governmental agency of the State of Oklahoma” makes GRDA “a governmental entity
intended to be encompassed within the protective cloak of [the Governmental Tort Claims
Act],” including the Act’s adoption of sovereign immunity. Mustain v. Grand River Dam
Authority, 2003 OK 43, ¶ 20, 68 P.3d 991, 998.
This protective cloak of sovereign immunity
bars private actions in state courts against state
agency employers under the FLSA. Freeman v.
State ex rel. Department of Human Services, 2006
OK 71, ¶¶ 2 & 10, 145 P.3d 1078, 1080.
¶10 We are cognizant that federal courts
have held that Congress may abrogate state
sovereign immunity for the enforcement of
certain claims under the FLSA. However, such
abrogation is appropriate for equal pay claims
where there is an equal protection interest
under the 14th Amendment to the United
States Constitution, but not for the enforceVol. 85 — No. 15 — 5/24/2014
ment of overtime claims. See Raper v. State of
Iowa, 115 F.3d 623 (8th Cir. 1997).
¶11 In addition to asserting liability against
GRDA, Mr. Rouse also contended that Mr. Sullivan individually is a proper defendant. The
petition alleges that Mr. Sullivan was the “General Manager” and “Chief Executive Officer”
of GRDA. Although not specifically naming
Mr. Sullivan, a liberal reading of the petition
reveals that Mr. Sullivan participated in and
shared responsibility with GRDA for “a continuing course of retaliation [against Mr. Rouse]
for making his complaint to the Department of
Labor, Wage and Hour Division.”
¶12 In addition, Mr. Rouse’s first response to
the Defendants’ motion to dismiss identifies
Mr. Sullivan as the “head of GRDA” and “the
person who fired [Mr. Rouse] because he filed
a claim with the Wage and Hour Division of
the Federal Department of Labor.” This
response asserts: “When any official, including
Daniel Sullivan, is willing to violate federal
law, he cannot be acting in the scope of his official duties [and] has no claim of immunity.”
The response further states that “the decision
to include Mr. Sullivan as a Defendant” was
based on the request for injunctive relief to be
reinstated. The response indicates that an order
to reinstate Mr. Rouse “will do nothing more
than command[] Mr. Sullivan to ‘refrain from
violating federal law.’”
¶13 In his second response to the motion to
dismiss, Mr. Rouse alleged Mr. Sullivan
“ignored the prohibition against retaliating
against an employee who files a wage claim
with the Federal Department of Labor.” Mr.
Rouse maintains that this “departure from the
federal mandate addressed in the Fair Labor
Standards Act [establishes] he was not acting
within the scope of his authority.”
¶14 In essence, Mr. Rouse contends Mr. Sullivan’s decision to terminate him in violation of
the Fair Labor Standards Act and the Whistleblower Act demonstrates a lack of good faith
that would take Mr. Sullivan outside the scope
of his employment. Despite the compelling
logic of this position, this Court has said: “The
fact that [the] decision to terminate . . . was
contrary to policy prohibiting the termination
does not alone take that decision outside the
scope of [the decision maker’s] employment.”
Shephard, 2009 OK 25, at ¶ 19, 209 P.3d at 294.
¶15 As we explained, “[a]cting in good faith
and using poor judgment are not mutually
1211
exclusive, and use of poor judgment does not,
without more, exceed the scope of employment.” Id. at ¶ 18, 209 P.3d at 294. Where the
termination decision is ratified by the governmental entity,1 such ratification establishes
prima facie that the decision maker acted in
good faith and did not act contrary to the entity’s interests. Id. at ¶ 17, 209 P.3d at 294. Preserving immunity from private liability for
state employees in such circumstances “allows
[state employees] to perform their duties and
make decisions on behalf of the State free from
fear of suit.” Id. at ¶ 20, 209 P.3d at 294.
¶16 The fact that Mr. Rouse cannot pursue an
action in court against GRDA or Mr. Sullivan
does not mean that Mr. Rouse is without
recourse. “The Legislature has provided (1) an
appeal to the Oklahoma Merit Commission to
any state employee or former state employee
aggrieved pursuant to [the Whistleblower Act],
and (2) corrective action against any employee
found to have violated the Whistleblower Act.”
Id. at ¶ 5, 209 P.3d at 291 (citing 74 O.S.Supp.2008,
§ 840-2.5 (G) and (H); identical to the current
version, 74 O.S.2011, § 840-2.5 (G) and (H)).
¶17 “These dual remedies provide relief to
the offended employee and sanctions for the
offending supervisor or agency official.” Id. at
¶ 6, 209 P.3d at 291-92. “Relief provided to the
whistleblower on appeal to the Merit Protection Commission includes (1) reinstatement,
(2) back pay and other benefits in appropriate
cases, and (3) expungement of the adverse
action from any and all of the employee’s personnel records.” Id. (citation omitted). “A prevailing employee can also be awarded attorney
fees and costs when the employee can demonstrate by a preponderance of the evidence the
position of the non-prevailing party was without a reasonable basis or was frivolous.” Id.
¶18 The sanctions that can be imposed on an
offending supervisor or agency official include
suspension without pay, demotion or discharge.
74 O.S.2011, § 840-2.5 (H). A suspended or
demoted employee shall also be placed on six
months probation. In addition, “Any employee,
supervisor or appointing authority of any state
agency . . . who knowingly and willfully violates
[the Whistleblower Act] shall forfeit [their position] and be ineligible for appointment to or
employment in a position in state service for a
period of at least one (1) year and no more than
five (5) years.” Id. (emphasis added). The term
appointing authority of an agency is generally
1212
defined to mean the chief administrative officer
of an agency, 74 O.S.2011, § 840-1.3(3).
¶19 We again stress that jurisdiction over
protected whistleblower conduct and retaliation, including power to impose the remedies
and penalties under the Act, lies with the Merit
Protection Commission. 74 O.S.2011, § 8402.5(G) and (H) and § 840-2.6. We also stress that
a private right of action is not one of the remedies given by the Legislature to enforce the
Whistleblower Act and that state employees
are limited to the remedies provided in the
Whistleblower Act. Shephard, 2009 OK 25, at ¶¶
7 & 12, 209 P.3d at 292-293.
¶20 The relationship between state employees and those who hire and fire them is one of
the core sovereign interests of the State of Oklahoma. In the Whistleblower Act, the Legislature has balanced the need for supervisors and
the appointing authorities to manage employees who carry out their agency’s mission
against the benefits of having those employees
report “a violation of . . . state or federal law”
in the operation of the agency. The Legislature
has determined that this state’s sovereign interest is better served by the remedies and penalties in the Whistleblower Act, rather than by a
suit in court.
¶21 In the absence of specific statutory
authority to the contrary, supervisors and
appointing authorities are cloaked with sovereign immunity from private suits for personnel
decisions that the Merit Protection Commission may later find to violate the Whistleblower Act. Instead of private suits, they are subject
to the remedies and penalties of the Whistleblower Act if, after investigation as provided in
subsection (G) and hearing as provided in subsection (H), the Merit Protection Commission
determines their personnel decisions violated
the Act.
¶22 In conclusion, we hold the trial court correctly ruled that Mr. Rouse failed to state a
claim upon which relief can be granted and
properly dismissed this suit. Accordingly, the
dismissal is affirmed.
DISMISSAL AFFIRMED.
¶23 ALL JUSTICES CONCUR.
REIF, V.C.J.:
1. The petition in error in related appeal No. 112,637, Rouse v. Oklahoma Merit Protection Commission & Grand River Dam Authority, reflects
that GRDA defended Mr. Sullivan’s termination of Mr. Rouse before the
Merit Protection Commission and in the district court. An appellate court
Vol. 85 — No. 15 — 5/24/2014
may take judicial notice of its own records in litigation interconnected
with the cause before it. Myers v. Lashley, 2002 OK 14, ¶ 5, n. 8, 44 P.3d
553, 556; Matter of C.A.D., 1992 OK 89 ¶ 5, n. 10, 839 P.2d 165, 169. We take
judicial notice only of GRDA’s ratification of Mr. Sullivan’s action and
express no opinion about the merits of appeal No. 112,637.
2014 OK 40
IN RE: AMENDMENTS TO OKLAHOMA
SUPREME COURT RULES
SCAD-2014-26. May 12, 2014
ORDER ESTABLISHING NEW
OKLAHOMA SUPREME COURT RULE
1.410 CONCERNING AUDIO RECORDING
OF PROCEEDINGS WITH NONCERTIFIED FOREIGN LANGUAGE
INTERPRETERSAND RESERVING
CERTAIN RULE NUMBERS
The following new rule of the Oklahoma
Supreme Court establishing procedures and
policies regarding the audio recording of proceedings with non-certified foreign language
interpreters is hereby adopted to be codified at
Part XII of the Oklahoma Supreme Court
Rules, Okla. Stat. tit. 12, ch. 15, app. 1, and is
attached as an exhibit to this Order. In addition, the following numbers of the Oklahoma
Supreme Court Rules will be reserved under
Part XI, Oklahoma Access to Justice Commission: rule numbers 1.402 through 1.409.
COURT IN CONFERENCE THIS 12th DAY OF
MAY, 2014.
/s/ Tom Colbert
CHIEF JUSTICE
ALL JUSTICES CONCUR
Administrative Office of the Courts for this
purpose.
1. The audio recording shall be saved in a
commonly used digital audio format which
the court clerk can reproduce upon request
(such as MP3). For proceedings lasting longer than thirty (30) minutes, the audio file
should be saved in the MP3 format whenever possible (this may be accomplished by
converting the audio file to MP3 format
after the conclusion of proceeding).
2. The audio recording shall be saved on a
digital storage device which shall be included as part of the official court record.
Whenever possible, a compact disc (“CDROM”) shall be used for this purpose.
3. The judge or his/her staff shall be responsible for transferring the audio file from the
digital recording device onto a compact
disc and filing the same in the case file with
the court clerk. If the equipment available
to the judge or his/her staff cannot save the
audio file to a CD-ROM then the court
clerk shall assist the judge in doing so,
using the equipment in the court clerk’s
office.
4. The CD-ROM or other audio storage
device shall be labeled with the case name,
case number, and the date and description
of the proceeding, and placed in an envelope which is clearly labeled with the same
information, file stamped, and physically
filed in the court file.
A. It is the policy of the Oklahoma Supreme
Court that, whenever possible, any court
proceeding interpreted by a non-certified
foreign language interpreter shall be audio
taped and the recording shall be made an
official part of the record as required by 20
O.S. § 1710.
5. For purposes of disaster recovery protection and preservation of the court record,
the court clerk shall save a backup copy of
the audio recording as an electronic file in
a designated directory on the court’s network file server. The clerk shall utilize
clearly labeled file folders and file names
which reference the case number and date
of the proceeding. The Administrative
Office of the Courts shall establish a specially designated directory for each district
court on the OCIS network file server
which will be used by the court clerk for
this purpose.
B. The audio recording required by 20 O.S. §
1710 may be made with the courtroom’s
audio-visual equipment, if any, with the
court reporter’s equipment, or with a portable audio recording device provided by the
6. Whenever possible, the contents of the
CD-ROM or other storage device filed in
the case shall be limited to the individual
proceeding interpreted by the non-certified
foreign language interpreter, and shall not
PART XII. OKLAHOMA
INTERPRETERS
COURTROOM
RULE 1.410 — Audio Recording of Proceedings with Non-certified Foreign Language
Interpreters
Vol. 85 — No. 15 — 5/24/2014
1213
contain the audio recording of proceedings
in other cases.
7. In courts where the new Oklahoma Unified Case Management System (OUCMS)
has been implemented and is capable of
including audio files as part of the electronic court record, the audio recording
required by 20 O.S. §1710 may be maintained by the court clerk as an electronic
record in the OUCMS, and the court clerk
shall not be required to preserve the recording on a CD-ROM or other storage device
or save a duplicate copy on the network
file server.
C. In the event an audio recording cannot be
accomplished because of technical or other
reasons, and only upon a finding that delay
would cause substantial harm or prejudice,
the court may allow a party to waive the
audio recording required by 20 O.S. § 1710. A
knowing and voluntary waiver from the necessary party/parties or other participants of
the right to have the proceeding recorded
shall be obtained on the record prior to conducting the proceeding, and also documented in written form.
D. When a copy of an audio recording
required by 20 O.S. § 1710 is requested, the
court clerk shall collect and deposit in the
court fund a copy fee in the amount of $20.00.
The audio recording shall be reproduced
onto a compact disc in the original format.
The clerk shall not release the original CD or
storage device contained in the record to a
member of the public. The clerk may use the
backup copy saved on the court’s network
file server to reproduce the audio recording.
E. Interpreters provided via a telephonic
interpreting service approved by the Supreme
Court shall be deemed to be certified interpreters for the purposes of 20 O.S. § 1710.
F. Implementation of this procedure shall
occur on or before August 1, 2014, subject to
equipment availability.
2014 OK 41
RENEE BREWER, Plaintiff/Appellant, v.
CITY OF SEMINOLE, Defendant/Appellee.
No. 112,292. May 13, 2014
CERTIFIED QUESTIONS OF LAW FROM
THE UNITED STATES DISTRICT COURT
1214
FOR THE EASTERN DISTRICT OF
OKLAHOMA
¶0 Plaintiff, a probationary police trainee,
filed suit in the United States District Court
for the Eastern District of Oklahoma. Pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.2011, §§ 1601-1611,
the Honorable James H. Payne, United
States District Judge for the Eastern District
of Oklahoma, certified three questions to
this Court. We reformulate question one
and answer questions one and two in the
negative. Question three is not answered
because it is dependent on an affirmative
answer to question two.
CERTIFIED QUESTION ONE
REFORMULATED AND ANSWERED;
CERTIFIED QUESTION TWO ANSWERED;
ANSWER TO CERTIFIED QUESTION
THREE DECLINED.
Margaret McMorrow-Love and Matthew J.
Love, The Love Law Firm, Oklahoma City,
Oklahoma, for Defendant.1
TAYLOR, J.
¶1 The United States Court of District Court
for the Eastern District of Oklahoma certified
the following questions to this Court under the
Revised Uniform Certification of Questions of
Law Act, 20 O.S.2011, §§ 1601-1611.
1. Whether a probationary police officer in
a municipality that has entered into a Collective Bargaining Agreement (“CBA”)
with a recognized bargaining agent under
the Fire and Police Arbitration Act, Okla.
Stat. tit. 11, § 51-101 (“FPAA”), who is
excluded by the terms of the CBA from
having access to the grievance/arbitration
process contained in the CBA in connection
with the termination of his/her employment due to his/her probationary status,
but who was also a member of the Police
Pension and Retirement Systems, Okla.
Stat. tit. 11, § 50-101 et seq., at the time of
the termination of his employment, has a
right to be terminated only for cause by
Okla.Stat. tit. 11, § 50-123(B) and, thus, is
entitled to due process in connection with
the termination of his/her employment?
2. Whether the probationary police officer
under the above scenario has a statutory
right to a hearing before a Police Pension
Review Board as provided for in Okla.
Stat. tit. 11, § 50-123(A)?1
Vol. 85 — No. 15 — 5/24/2014
3. If a probationary police officer has a
statutory right to a hearing before a Police
Pension Board of Review under by [sic]
Okla.Stat. tit. 11, § 50-123, must the officer
request a hearing and when must the officer request a hearing, or must the municipality offer a hearing and when must the
municipality offer a hearing?
¶5 Brewer filed an action in the United States
District Court for the Eastern District of Oklahoma, asserting in part that she had a property
interest in continued employment as a police
trainee because she could only be terminated
from her employment “for cause.” Brewer
alleged that she requested a hearing which
Seminole denied.
1. Compare City of Coweta v. Doughten, 2011 OK Civ App 113,
264 P.3d 135 (Division Four) and White v. City of Del City, 2012 OK
CIV APP 5, 270 P.3d 205 (Division Two).
II. BRIEFS
The United States District Court did not forward any record to this Court but provided a
factual background in the certifying order.
¶2 We reformulate question one because
answering it as written would require us to
apply federal law. See 20 O.S.2011, § 1604(A)(3).
Questions two and three remain unchanged.
We reformulate question one as:
1. Whether title 11, section 50-123(B) of the
2011 Oklahoma Statutes provides a right to a
probationary police trainee to be terminated
only for cause if she is a member of the Police
Pension and Retirement System as defined by
title 11, section 50-101(6) of the Oklahoma Statutes and is employed by a municipality that
has entered into a Collective Bargaining Agreement (CBA) with a recognized bargaining
agent under the Fire and Police Arbitration
Act, 11 O.S.2011, §§51-101 to 51-113, but, due to
her probationary status, is excluded by the
terms of the CBA from having access to the
arbitration and grievance process contained in
the CBA in connection with the termination of
her employment.
¶3 We answer questions one and two in the
negative. Because question three is dependent
on an affirmative answer to question two, we
decline to answer question three.
I. FACTUAL BACKGROUND AS
PROVIDED BY THE CERTIFYING COURT
¶4 The plaintiff Renee Brewer (Brewer) was
employed by the defendant City of Seminole
(Seminole) from July 9, 2011, until January 4,
2012, when she was involuntarily terminated.
At the time of her termination, Brewer was
classified as a probationary police trainee; she
was not covered by the terms of the collective
bargaining agreement (CBA) between Seminole and the Fraternal Order of Police, Lodge
No. 138;2 and she was a member of the Oklahoma Police Pension and Retirement System
(OPPRS), 11 O.S.2011, §§ 50-101 to 50-136.8.
Vol. 85 — No. 15 — 5/24/2014
¶6 On November 6, 2013, we ordered the
parties to file simultaneous briefs addressing
only the issues raised by the certified questions. Brewer’s argument is as follows. Title 11,
section 50-123(A) provides: “No member [of
OPPRS] may be discharged except for cause.”
Under section 50-101(6), a member includes
“any person hired by a participating municipality who is undergoing police training to
become a permanent police officer of the
municipality.” Because the definition of member includes probationary police trainees and
Brewer is a member of OPPRS, she cannot be
fired except for cause.
¶7 Seminole’s argument is as follows. The
legislature never intended to grant probationary employees the same employment rights as
permanent employees as evidenced by the Fire
and Police Arbitration Act (FPAA), 11 O.S.2011,
§§ 51-101 to 51-113, and OPPRS. Section 50-123
does not apply when a municipality has entered
into a collective bargaining agreement. Holding that a probationary employee can be terminated only for cause would reach the absurd
results that a probationary employee is getting
a review before a board that a municipality is
exempt from establishing, that a probationary
employee is entitled to more protections than a
unionized employee, and that it would defeat
the purpose of probationary status if section
50-123(B) applies to probationary employees.
III. ANALYSIS
¶8 This Court’s recent decision in City of Jenks
v. Stone, 2014 OK 11, 321 P.3d 179, is dispositive
of certified questions one and two now before
us. Like the probationary police trainee in City
of Jenks, Brewer was classified as a probationary police trainee at the time of her discharge;
she was a member of OPPRS; and she asserted
she could only be terminated for cause. Id. ¶ 4,
321 P.3d at 181. Also similar to the probationary police trainee in City of Jenks, Brewer
alleged that she requested a hearing before a
municipal review board pursuant to title 11,
1215
section 50-123(B)3 which the municipality
denied. Id. ¶ 5, 321 P.3d at 181.
ANSWER TO CERTIFIED QUESTION
THREE DECLINED.
¶9 In City of Jenks, this Court held that title 11,
section 50-123(B) does not provide a probationary police trainee, even though a member of
OPPRS, any statutory rights in his employment, including a right to be terminated only
for cause or a right to a post-termination hearing before a board of review. Our decision was
not dependent on Jenks entering into a collective bargaining agreement with its permanent
police officers pursuant to FPAA.
Concur: Colbert, C.J.; Reif, V.C.J.; and Watt,
Winchester, Edmondson, Taylor, Combs, and
Gurich, JJ.
¶10 Pursuant to City of Jenks, we answer
question one in the negative. Title 11, section
50-123(B) of the Oklahoma Statutes does not
provide a right to a probationary police trainee
to be terminated only for cause. Pursuant to
City of Jenks, we answer question two in the
negative. Title 11, section 50-123(B) of the Oklahoma Statutes does not afford a probationary
police trainee the right to a post-termination
hearing. Because question three is dependent
on question two being answered in the affirmative, we decline to answer question three.
CERTIFIED QUESTION ONE
REFORMULATED AND ANSWERED;
CERTIFIED QUESTION TWO ANSWERED;
Concurs in Result: Kauger, J.
TAYLOR, J.
1. Only those attorneys who have complied with Rule 1.5(a) of the
Oklahoma Supreme Court Rules, 12 O.S.2011, ch. 15, app. 1, are listed
on this opinion.
2. This statement is inconsistent with certified question one which
states that Brewer was excluded by the terms of the CBA from having
access to the grievance and arbitration process contained in the CBA. It
is unclear whether the terms of the CBA exclude Brewer from coverage
or cover Brewer but deny her access to the grievance and arbitration
process. However, the discrepancy is not material to our decision.
3. Title 11, section 50-123 of the Oklahoma Statute provides:
A. The governing body of every participating municipality,
except municipalities which have provided for a civil service
board of review or merit board, or have negotiated a contract
covering discharge with their members to hear such appeals,
shall establish a board of review to hear appeals concerning the
discharge of members. . . .
B. No member may be discharged except for cause. Any member
who is discharged may appeal to the board of review herein
provided. Appeals from decisions of said board of review may be
taken in the manner provided for in this article, provided the
provisions of this section relating to the board of review and
discharge shall not apply to any municipality which has heretofore or hereinafter established by its charter civil service or merit
system pertaining to the appointment and discharge of members
and an independent board or commission having authority to
hear actions involving the discharge of members.
TO: The natural mother, Jessica Ciccocioppo
IN RE:
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
ADOPTION OF
: ORPHANS’ COURT DIVISION
S.C.
:
DOB: 6/4/98
: NO. ADOPTIONS 2014
NOTICE
A petition has been filed asking the Court to put an end to all rights you have to your child, S.C. The Court has set a hearing to consider ending your rights to your child. The hearing will be held in Courtroom 5, 4th Floor, Cumberland County
Courthouse, Carlisle, Pennsylvania, on June 18, 2014 at 9:30 A.M. If you do not appear at the hearing, the Court may decide
that you are not interested in retaining your rights to your child and your failure to appear may affect the Court’s decision on
whether to end your rights to your child. You are warned that even if you fail to appear at the scheduled hearing, the hearing
will go on without you and your rights to your child may be ended by the Court without your being present. You have a right
to be represented at the hearing by a lawyer.
You should take this paper to your lawyer at once. If you do not have a lawyer, or cannot afford one, go to or telephone
the office set forth below to find out where you can get legal help.
Lindsay D. Baird, Esq.
Solicitor, Cumberland County
Children & Youth Services
1216
Cumberland County Bar Assoc.
32 S. Bedford street, Carlisle, PA 17013
(717)249-3166
Vol. 85 — No. 15 — 5/24/2014
Court of Criminal Appeals Opinions
2014 OK CR 3
CLAYTON LOCKETT and CHARLES
WARNER, Appellants, v. STATE OF
OKLAHOMA, Appellee.
No. D-2000-1330 D-2003-829
Cross Reference with Oklahoma Supreme
Court Case No. 112,741
April 18, 2014
ORDER DENYING STAYS OF EXECUTION
¶1 The Oklahoma Supreme Court has again
transferred to this Court a joint request for stay
of execution filed in connection with a civil
appeal involving Appellants currently pending
before that Court. Lockett, et al. v. Evans, et al.,
Case No. 112,741 (April 11, 2014). The recent
procedural history of this case is lengthy and
requires repeating for clarity. This Court set
execution dates in January 2014 for Lockett and
Warner after both death row inmates had
exhausted their state and federal appeals.1 Both
sought and were denied executive clemency
from the Oklahoma Pardon and Parole Board.
On February 26, 2014, Lockett and Warner filed
a civil declaratory judgment action in the District Court of Oklahoma County against the
Oklahoma Department of Corrections (ODOC).
Lockett, et al. v. Evans, et al., Case No. CV-2014330. That lawsuit challenged, among other
things, the constitutionality of the confidentiality provision in 22 O.S.2011, § 1015(B).2 The
complaint was accompanied by a motion for
injunctive relief seeking a stay of their respective executions. Because the complaint challenged § 1015(B) on both state and federal
grounds, ODOC removed the case to federal
court. Appellants amended their complaint,
deleting all federal constitutional claims, and
the federal district court declined jurisdiction
and remanded the case back to state court.
Appellants filed an amended complaint along
with their motion for stay of execution. The
Honorable Patricia G. Parrish of the District
Court of Oklahoma County held a hearing on
March 10, 2014, and denied Appellants’ request
for stay of execution, finding that “jurisdiction
for such matters properly lies with the Oklahoma Court of Criminal Appeals.” Judge Parrish did not otherwise rule on the declaratory
judgment action.
Vol. 85 — No. 15 — 5/24/2014
¶2 On March 11, 2014, Appellants filed with
the Oklahoma Supreme Court a petition in
error and designation of record to initiate an
appeal of Judge Parrish’s ruling denying the
requested stay of execution. See Lockett, et al. v.
Evans, et al., Case No. 112,639. Appellants also
filed with the Oklahoma Supreme Court an
“Emergency Application for Stay of Execution
Pending Outcome of Appeal.” The next day
ODOC filed a response in opposition to Appellants’ motion for stay of execution. On March
13, 2014, the Oklahoma Supreme Court ruled
that Judge Parrish had jurisdiction to hear the
merits of Appellants’ declaratory judgment
action. That Court declined, however, to grant
a stay of execution, citing Maynard v. Layden,
1992 OK CR 31, 830 P.2d 581,3 and transferred
to this Court Plaintiffs’ Emergency Application
for Stay of Execution Pending Outcome of
Appeal. That same day, this Court directed
briefs from the parties addressing the applicability of Malicoat v. State4 and 22 O.S.2011, §
1001.1 to the application for stay. In the supplemental briefing, the State announced its inability to procure the necessary execution drugs
for the impending executions. Based on the
State’s revelation that it lacked execution drugs
and could not obtain them, this Court on
March 18, 2014 vacated Lockett’s and Warner’s
execution dates and reset them.5 On March 26,
2014, Judge Parrish ruled from the bench that
the portion of § 1015(B) making confidential
the identity of execution participants and those
who supply the execution drugs violated
Appellants’ state constitutional right to access
to the courts.6 A written order memorializing
Judge Parrish’s ruling was entered on April 1,
2014. Appellants filed in this Court an application for stay of execution on April 7, 2014, but
did not file an action challenging their convictions, death sentences or the constitutionality
of the execution protocol. The State filed a
response that same day, attesting that ODOC
had the necessary drugs to lawfully carry out
Appellants’ scheduled executions and had
advised Appellants of ODOC’s newly adopted
execution protocol. This Court denied Appellants’ request for stay of execution on April 9,
2014, on the basis that we had no authority to
enter a stay under 22 O.S.2011, § 1001.1(C)
because there was no pending case in this
1217
Court. With their executions approaching and
their request for stay of execution denied by
this Court, Appellants filed on April 11, 2014,
an application for stay of execution in the Oklahoma Supreme Court in connection with their
appeal of Judge Parrish’s adverse ruling of
March 26, 2014.7 The State filed a response. The
Oklahoma Supreme Court transferred the
application for stay of execution to this Court
on April 17, 2014 to decide whether a stay of
execution should be issued pending the resolution of Appellants’ civil appeal before the
Supreme Court.8 The Supreme Court retained
jurisdiction of Appellants’ appeal of Judge Parrish’s adverse ruling.
¶3 The Court of Criminal Appeals has exclusive appellate jurisdiction in criminal cases and
may exercise such other and further jurisdiction as may be conferred by statute. Okla.
Const. art. 7, § 4; 20 O.S.2011, § 40. Our authority to grant a stay of execution is limited by 22
O.S.2011, § 1001.1(C).9 The language of §
1001.1(C) is clear. This Court may grant a stay
of execution only when: (1) there is an action
pending in this Court; (2) the action challenges
the death row inmate’s conviction or death
sentence; and (3) the death row inmate makes
the requisite showings of likely success and
irreparable harm. The Supreme Court’s opinion transferring Appellants’ application for
stay of execution finds that this Court “ignored”
subsections (D),10 (E),11 and (F)12 of § 1001.1 in
denying Appellants’ April 7th application for
stay of execution filed in this Court. We respectfully disagree based on rules of statutory construction. The primary task in construing a
statute is to ascertain and give effect to the
intent of the Legislature. Johnson v. State, 2013
OK CR 12, ¶ 10, 308 P.3d 1053, 1055; Starkey v.
Oklahoma Dept. of Corrections, 2013 OK 43, ¶ 34,
305 P.3d 1004, 1017. To discern that intent, we
look first to the language of the statute itself,
giving the statutory terms their commonly
accepted and understood meaning. Johnson,
2013 OK CR 12, ¶ 10, 308 P.3d at 1055; W.R. Allison Enterprises, Inc. v. CompSource Oklahoma,
2013 OK 24, ¶ 15, 301 P.3d 407, 411-412 (citing
State ex rel. Oklahoma State Dept. of Health v. Robinson, 2006 OK 99, ¶ 6, 152 P.3d 875, 877-78). In
construing statutory provisions, specific provisions govern over general ones. See State v. Hall,
2008 OK CR 15, ¶ 29 , 185 P.3d 397, 404 (citing
Lozoya v. State, 1996 OK CR 55, ¶¶ 17-18, 932
P.2d 22, 28-29); Jones v. State ex rel. Office of Juvenile Affairs, 2011 OK 105, ¶ 14, 268 P.3d 72, 76.
1218
¶4 It is evident from the plain language of §
1001.1 that the Legislature prescribed this
Court’s authority to grant stays of execution in
Subsection (C). Although Subsections (D), (E),
and (F) refer to stays of execution issued by
“any state or federal court,” these subsections
do not specify the conditions under which
“any state or federal court” may grant a stay,
nor do they specifically vest authority to do so.
These subsections identify this Court by name
and task us with setting execution dates upon
the dissolution or vacation of stays issued by
other state or federal courts. Subsection (C)
vests authority in this Court to grant stays of
execution and prescribes the conditions under
which we may do so. It is controlling. While
the Oklahoma Supreme Court has authority to
deem an issue civil and so within its jurisdiction, it does not have the power to supersede a
statute and manufacture jurisdiction in this
Court for Appellants’ stay request by merely
transferring it here. Therefore, Appellants’
application for stays of execution is DENIED.
¶5 IT IS SO ORDERED.
¶6 WITNESS OUR HANDS AND THE
SEAL OF THIS COURT this 18th day of April,
2014.
/s/ DAVID LEWIS,
Presiding Judge
/s/ CLANCY SMITH,
Vice Presiding Judge
/s/ GARY L. LUMPKIN, Judge
/s/ CHARLES A. JOHNSON, Judge
/s/ ARLENE JOHNSON, Judge
ATTEST:
Michael S. Richie
Clerk
1. Lockett’s original execution date was set for March 20, 2014 and
Warner’s original execution date was set for March 27, 2014.
2. The confidentiality provision of § 1015 (B) states: “The identity
of all persons who participate in or administer the execution process
and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential and shall not be subject to
discovery in any civil or criminal proceedings.”
3. In Layden, this Court referenced an Oklahoma Supreme Court
order that denied a death row inmate’s application to assume original
jurisdiction and petitions for writs of prohibition and mandamus
because “the punishment, and the amount thereof, is an essential part
of the judgment in a criminal case and that the carrying out, prohibiting, or staying such a judgment is within the exclusive appellate jurisdiction of [the Court of Criminal Appeals].” Layden, at ¶ 3, 830 P.2d at
582. Layden dealt with statutes (22 O.S.1991, §§ 1012 & 1013) that have
been repealed but the rule enunciated above remains valid.
4. 2006 OK CR 25, 137 P.3d 1234.
5. Lockett’s execution date is set for April 22, 2014 and Warner’s
execution date is set for April 29, 2014.
Vol. 85 — No. 15 — 5/24/2014
6. Judge Parrish denied the balance of Appellants’ claims in the
amended petition.
7. Appellants appeal Judge Parrish’s rulings that (1) Section 1014 of
Title 22 is not an unconstitutional delegation of legislative authority;
and (2) the Oklahoma Administrative Procedures Act was not violated
by ODOC when it enacted its new execution protocol. The State filed
its petition in error appealing Judge Parrish’s ruling finding 22
O.S.2011, § 1015(B) unconstitutional on April 18, 2014.
8. The Supreme Court’s opinion urges us “to be cognizant of the
time restraints associated with the submission of the appeal(s) to this
Court along with the gravity of the first impression constitutional
issues this Court will be charged with in addressing the civil appeal, or
appeals.” Lockett et al. v. Evans et al., 2014 OK 28, ¶ 4. ODOC has furnished Appellants with the names, dosages and expiration dates of the
three drugs it will use for execution. Armed with this information,
Appellants have failed to challenge the new protocol on Eighth
Amendment grounds and insist only that the identities of the drug
suppliers and manufacturers may lead to a basis to challenge their
death sentences.
9. Section 1001.1(C) states:
When an action challenging the conviction or sentence of death
is pending before it, the Court of Criminal Appeals may stay an
execution date, or issue any order which effectively stays an
execution date only upon a showing by the defendant that there
exists a significant possibility of reversal of the defendant’s conviction, or vacation of the defendant’s sentence, and that irreparable harm will result if no stay is issued.
10. Section D provides:
Should a stay of execution be issued by any state or federal
court, a new execution date shall be set by operation of law
sixty (60) days after the dissolution of the stay of execution. The
new execution date shall be set by the Court of Criminal
Appeals without necessity of application by the state, but the
Attorney General, on behalf of the state, shall bring to the attention of the Court of Criminal Appeals the fact of the dissolution
of a stay of execution and suggest the appropriateness of the
setting of a new execution date.
11. Section E provides:
After an execution date has been set pursuant to the provisions
of this section, should a stay of execution be issued by any state
or federal court, a new execution date shall be set by operation of
law thirty (30) days after the dissolution of the stay of execution.
The new execution date shall be set by the Court of Criminal
Appeals without necessity of application by the state, but the
Attorney General, on behalf of the state, shall bring to the attention of the Court of Criminal Appeals the fact of the dissolution
of a stay of execution and suggest the appropriateness of setting
a new execution date.
12. Section F provides:
After an execution date has been set pursuant to the provisions
of this section, should a stay of execution be issued by any state
or federal court and then vacated by such court, the sentence of
death shall be carried out as ordered prior to the issuance of such
vacated stay of execution. If the prior execution date has expired
prior to the vacation of the stay of execution, a new execution
date shall be set by operation of law thirty (30) days after the
vacation of the stay of execution. The new execution date shall be
set by the Court of Criminal Appeals without necessity of application by the state, but the Attorney General, on behalf of the
state, shall bring to the attention of the Court of Criminal
Appeals the fact of a vacation of the stay of execution and suggest the appropriateness of the setting of a new execution date.
SMITH, VICE PRESIDING JUDGE, DISSENTING:
¶1 The majority has set forth an erudite and
accurate analysis of this Court’s jurisdictional
restraints. However, I find that whether or not
a stay is an appropriate exercise of this Court’s
authority under 22 O.S.2011, § 1001.1., I would
grant a stay to avoid irreparable harm as the
appellants face imminent execution. I would
do so in consideration of the appellants’ rights,
to avoid the possibility of a miscarriage of justice, and in comity with the Supreme Court’s
Vol. 85 — No. 15 — 5/24/2014
request for time to resolve the issues pending
before it.
¶2 I am authorized to state that Judge Charles
Johnson joins me in this dissent.
Lumpkin, J., Specially Concurring:
¶1 I join in the order entered by the Court but
write separately to point out Appellants’
repeated failure to invoke the jurisdiction of
this Court prevents the Court from reaching
any other result.
¶2 On March 13, 2014, the Oklahoma Supreme
Court determined only the Court of Criminal
Appeals has jurisdiction to enter a stay of execution in a death penalty case and transferred
to this Court part of the matter pending in
Oklahoma Supreme Court Case No. 112,639.
That portion transferred addressed the issue of
whether a stay should be issued prior to the
District Court of Oklahoma County considering the pleadings that have been filed in the
above cited civil matter. This Court ordered the
Appellants and the State to provide this Court
with supplemental briefs and directed the parties to this Court’s controlling precedent in
Malicoat v. State, 2006 OK CR 25, 137 P.3d 1234
and 22 O.S.2011, § 1001.1. Appellants refused
the opportunity to lawfully file an application
for post-conviction relief and proceeded with
their “civil” claim. Within its supplemental
brief, the State acknowledged that it did not
possess the drugs needed to carry out the lawful sentence of death for Appellants. On March
18, 2014, this Court vacated and reset the
scheduled executions for both Appellants.
Appellant Lockett’s execution was reset to
April 22, 2014, and Appellant Warner’s execution was reset to April 29, 2014.
¶3 On April 7, 2014, Appellants filed their
joint Emergency Application for Stay of Execution Pending The Appeal From The District
Court’s Decision with this Court but did not
file an action challenging their convictions,
death sentences, or the constitutionality of the
execution protocol. Instead, they continued to
only raise “civil” claims. The State filed a
response that same day and attested that it had
the necessary drugs to lawfully carry out
Appellants’ execution and had advised Appellants concerning the Department of Corrections’ new execution protocol. On April 9, 2014,
we denied Appellants’ request for a stay and
explicitly informed Appellants that this Court
was without authority to issue a stay without
an action pending in this Court.
1219
¶4 Despite this Court’s notice to the Appellants of the need to invoke the jurisdiction of
this Court by filing the appropriate pleadings,
and the Oklahoma Supreme Court’s opinion
that only the Court of Criminal Appeals has
jurisdiction to enter a stay of execution in a
death penalty case, on April 14, 2014, Appellants, again, sought a stay of execution before
the Oklahoma Supreme Court in Oklahoma
Supreme Court Case No. 112,741. Appellants’
appeal only involves “civil” claims. On April 17,
2014, the Oklahoma Supreme Court transferred
to this Court that portion of the issue of whether
a stay of execution should be issued for both
Appellants during the pendency of their appeal
before the Oklahoma Supreme Court.
¶5 Counsel for Appellants are members of
the Oklahoma Bar licensed to practice in the
state. They are well aware that Oklahoma has a
bifurcated civil-criminal system of justice.
Carder v. Court of Criminal Appeals, 1978 OK 130,
¶ 1, 595 P.2d 416, 417. The jurisdiction of the
Oklahoma Court of Criminal Appeals is set
forth in Article VII, § 4 of the Oklahoma Constitution. The Court of Criminal Appeals has
exclusive appellate jurisdiction in criminal
cases and may exercise such other and further
jurisdiction as may be conferred by statute. Id.;
20 O.S.2011, § 40 (“The Court of Criminal
Appeals shall have exclusive appellate jurisdiction, coextensive with the limits of the state,
in all criminal cases appealed from the district,
superior and county courts, and such other
courts of record as may be established by
law.”). This Court has the authority to determine when it has the power to proceed. Duvall
v. State, 871 P.2d 1386, 1387-88; 20 O.S.2011, § 42
(“Said Court shall have power, upon affidavit
or otherwise, to ascertain such matters of fact
as may be necessary to the exercise of its jurisdiction.”); 22 O.S.2011, § 1051 (“The procedure
for the filing of an appeal in the Court of Criminal Appeals shall be as provided in the Rules
of the Court of Criminal Appeals . . . which will
have the force of statute . . . .”). It is the exclusive province of the Oklahoma Court of Criminal Appeals to construe state criminal statutes.
State v. Tolle, 1997 OK CR 52, ¶ 5, 945 P.2d 503,
504. The Court of Criminal Appeals decisions
are governed by the United States Constitution, the Constitution of the State of Oklahoma,
duly enacted statutes, and controlling precedent concerning these authorities. See Carder,
1978 OK 130, ¶ 20, 595 P.2d at 420 (“There is no
appeal or proceeding in error from the Court of
Criminal Appeals to this Court.”). The Court of
1220
Criminal Appeals is respectful of the Oklahoma Supreme Court’s well-reasoned opinions,
in all instances, but as the state appellate court
with exclusive jurisdiction in criminal matters,
the Court of Criminal Appeals must announce
and apply principled rules to guide the state’s
citizens, trial courts, and criminal litigators as
to criminal matters. Young v. State, 1999 OK CR
14, ¶ 17, 989 P.2d 949, 953.
¶6 Appellants’ litigation is intended to take
advantage of our bifurcated system of justice.
However, I note that the Justices of the Oklahoma Supreme Court work hand-in-hand with
the Judges that serve on this Court. Over 35
years ago, Justice Simms writing for the Oklahoma Supreme Court noted the relationship
between the two courts:
It speaks well of our bifurcated civilcriminal appellate system that there has
not been a jurisdictional conflict between
this Court and the Court of Criminal
Appeals for more than fifty years. This
scarcity of conflict is a testament to both
the clarity of jurisdictional boundaries
between the two Courts and the constant
willingness of the members of each Court
to observe and comply with their jurisdictional restrictions.
Carder, 1978 OK 130, ¶ 1, 595 P.2d at 417-18.
¶7 Both the Court of Criminal Appeals and
the Oklahoma Supreme Court have determined how issues like these should proceed.
As a general rule, a civil order will neither
interfere to prevent the enforcement of a valid
criminal judgment of conviction nor restrain or
relieve the execution of a valid criminal sentence. Maynard v. Layden, 1992 OK CR 31, ¶¶
7-10, 830 P.2d 581, 583. In Maynard, this Court
stated:
Brewer has the right to file a civil rights
action and, if his complaints are valid, to
obtain an injunction in such an action.
However, the breadth of such an action,
including the remedies available thereunder, is not unlimited and, as a general rule,
cannot affect or apply to criminal actions,
including the imposition of criminal punishment. See Rogers v. Douglas, 72 P.2d 823,
825 (Okla.1937) Such is true especially
where the criminal law provides a statutory remedy to prohibit the wrong or injury
for which redress is sought by injunction.
See Id.; Independent School District No. 9 of
Vol. 85 — No. 15 — 5/24/2014
Tulsa County v. Glass, 639 P.2d 1233, 1237
(Okla.1982).
Id., 1992 OK CR 31, ¶ 7, 830 P.2d at 583. In Rogers, the Oklahoma Supreme Court held that a
district judge was without jurisdiction to issue
a temporary restraining order enjoining
enforcement of a criminal statute that had not
been shown to be invalid. Maynard, 1992 OK
CR 31, ¶ 7 n.1, 830 P.2d at 583 n.1, citing Rogers
v. Douglas, 1937 OK 569, 72 P.2d 823. Where
there is a forum and a remedy for a capital
defendant to prohibit the execution of a judgment of death, an injunction emanating from
an alternative forum is not necessary to effectuate such relief and is an impermissible intrusion upon criminal proceedings. Maynard, 1992
OK CR 31, ¶ 8, 830 P.2d at 583.
¶8 Appellants have a forum to challenge the
validity of their convictions, sentences and the
execution protocol. In no way, have Appellants
been denied access to the courts. Excluding a
timely direct appeal, any challenge to a sentence of death is governed by the Capital PostConviction Procedure Act, 22 O.S.2011, § 1089.
See 22 O.S.2011, § 1080. This Court has previously determined that the proper method to
object to the setting of an execution date or
request a stay of execution is to file an application for post-conviction relief with the Court of
Criminal Appeals. Malicoat v. State, 2006 OK
CR 25, 137 P.3d 1234; Torres v. State, 2002 OK CR
35, 58 P.3d 214; Valdez v. State, 2002 OK CR 20, 46
P.3d 703. This includes any challenge to the execution protocol. Id. The Rules of the Court of
Criminal Appeals apply to all appeals and proceedings before the Oklahoma Court of Criminal
Appeals. Rule 1.0(A), Rules of the Oklahoma Court
of Criminal Appeals, Title 22, Ch. 18, App. (2014).
Both § 1089 and Rule 9.7, Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch. 18, App.
(2014), set forth the requirements for a properly
filed application for post-conviction relief. Our
rules and decisions permit discovery in capital
post-conviction proceedings. Bland v. State, 1999
OK CR 45, ¶ 3, 991 P.2d 1039, 1040. The Court of
Vol. 85 — No. 15 — 5/24/2014
Criminal Appeals has the authority to grant a
stay of execution of a sentence of death pursuant
to 22 O.S.2011, § 1001.1.
¶9 However, Appellants have repeatedly
refused to invoke the jurisdiction and power of
the Court to act. It is a fundamental axiom of
jurisprudence that a party must first file an
action to have access to the court. Buis v. State,
1990 OK CR 28, ¶ 4, 792 P.2d 427, 429 (holding
court may only exercise jurisdiction of justiciable matter through filing of pleadings sufficient to invoke power of the court to act).
Despite repeated invitations from this Court
for Appellants to file pleadings to invoke the
jurisdiction of this Court, Appellants have
failed to do so.
¶10 I have the utmost faith that if Appellants
had a meritorious challenge to their convictions, sentences of death or the execution protocol, that the Oklahoma Indigent Defense
System would ably represent them pursuant to
§ 1089(B). I note that in each of the Appellants’
cases, the District Court appointed the Oklahoma Indigent Defense System to represent
them in seeking post-conviction relief. Attorneys from the Oklahoma Indigent Defense
System have previously appeared in each of
the Appellants’ post-conviction proceedings.
Lockett v. State, unpub. dispo. PCD-2002-631,
(Okl. Cr. October 22, 2002); Warner v. State,
unpub. dispo. PCD-2003-897 (Okl. Cr. December 20, 2006). Those attorneys understand and
follow the procedure the Oklahoma Legislature has established for the review of sentences
involving the death penalty. The District
Courts’ orders appointing the Oklahoma Indigent Defense System remain valid. In light of
Appellants’ repeated refusals to file an action
in this Court I am forced to conclude that
Appellants’ “civil” pleadings are nothing more
than an attempt to cause a delay in their lawful
execution. Since the jurisdiction of this Court
has not been properly invoked, this Court cannot issue a stay of execution.
1221
BAR NEWS
OBA Member Reinstatement
The following member of the OBA suspended for nonpayment of dues or non-compliance with
the Rules for Mandatory Continuing Legal Education has complied with the requirements for
reinstatement, and notice is hereby given of such reinstatement:
Victoria H. Hales
OBA No. 12317
1312 S. Indian Knolls Drive
Washington, UT 84780-2257
IN MEMORIAM
T
racy Lee Allen of Tallahassee, Fla., died May 24,
2013. She was born on Oct. 10,
1956, in Tulsa. She was a 1984
graduate of the OU College of
Law. She worked as an attorney for the State of Florida
Hurricane Catastrophe Fund.
She was an animal lover who
raised horses and rescued
dogs, providing them with
compassion and a loving
home. Memorial donations
may be made to the Tallahassee Animal Shelter Foundation, online at www.
animalshelterfoundation.org/
help/donate.
1222
W
illiam Clayton Connor
of Jamestown, N.C.,
died April 28. He was born
June 6, 1954, in Washington,
D.C., and grew up in Durham, N.C. He graduated from
Lynchburg College magna cum
laude in 1976 and received his
juris doctor cum laude from
Washington and Lee Law
School in 1979. After practicing law in Bluefield, W.V.,
and Tulsa, he returned to his
beloved North Carolina in
1989, practicing commercial
law at the Greensboro firm of
Tuggle Duggins for 25 years.
He was a loving husband and
father, avid hiker and runner.
Memorial donations may be
made to the Greensboro
Youth Chorus, P.O. Box 4492,
Greensboro, NC 27404, or to
Saint Francis Service Dogs,
P.O. Box 19538, Roanoke,
VA 24019.
H
enry Nicholas Herbst
died May 8. He was born
Aug. 9, 1957. He was a 1984
graduate of the OU College of
Law. He was an attorney in
private practice in Norman.
Vol. 85 — No. 15 — 5/24/2014
Court of Civil Appeals Opinions
2014 OK CIV APP 32
IN RE THE MARRIAGE OF BILLY DALE
BEENE AND JANICE LOUISE BEENE:
BILLY DALE BEENE, Petitioner/Appellee,
vs. JANICE LOUISE BEENE, Respondent/
Appellant.
Case No. 110,707. February 28, 2014
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE LISA K. HAMMOND, JUDGE
AFFIRMED
Edward Goldman, GOLDMAN LAW PLLC,
Oklahoma City, Oklahoma, for Petitioner/
Appellee,
Jeff W. Wise, WISE LAW FIRM, Oklahoma City,
Oklahoma, for Respondent/Appellant.
ROBERT D. BELL, PRESIDING JUDGE:
¶1 In this dissolution of marriage proceeding, Respondent/Appellant, Janice Louise
Beene (Wife), appeals from the portion of the
trial court’s decree awarding the real property
located in Meeker, Oklahoma, to Petitioner/
Appellee, Billy Dale Beene (Husband), as his
separate property. We hold the trial court’s
exclusion of the Meeker property from the
marital estate was not an abuse of discretion or
against the clear weight of the evidence and
affirm.
¶2 The parties were married March 2010.
Husband filed his petition for dissolution of
marriage April 2011. The decree of dissolution
was entered April 2012. Prior to the parties’
marriage, Husband owned a debt-free home in
Meeker, Oklahoma, which was valued at
approximately $94,000.00. Soon after the marriage, the parties purchased a marital home in
Harrah, Oklahoma. Both their names were
placed on the deed to the Harrah home. At the
time of the divorce, there was very little equity,
if any, in the Harrah home. On August 3, 2010,
five months into the marriage, Husband transferred title to the Meeker home to Husband
and Wife as joint tenants.
¶3 At the merits trial, Wife claimed the
Meeker property was marital property. Her
evidence consisted of a real estate agent’s testiVol. 85 — No. 15 — 5/24/2014
mony that the initial closing for the Harrah
home was delayed because Husband insisted
Wife’s name be placed on the Meeker home
deed. Wife also testified Husband placed her
name on the title to his 2006 Chevrolet pickup
truck and purchased a 2011 Toyota Avalon for
her. She stated prior to the marriage, Husband
convinced her to give away most of her household belongings so that new ones could be
purchased. She also stated Husband intended
to sign a Last Will and Testament awarding all
of his possessions and property to Wife upon
his death. Although these documents were prepared and forwarded to the parties, the parties
separated before the estate planning documents were signed.
¶4 Husband countered he did not intend to
gift the Meeker home to the marital estate. He
testified he placed title to his Meeker home in
joint tenancy with Wife because of her repeated
requests and only for the collateral purpose of
appeasing her. He testified he did not understand the legal consequences of jointly titling
the property. He argued Wife was a licensed
real estate agent for 25 years before the marriage and was well versed in real estate transactions, investments and running a business.
He also argued Wife maintained her own separate bank account and did not contribute any
funds to the parties’ joint marital expenses or
accounts.
¶5 Husband testified when he met Wife, she
did not have a place of her own and had been
staying with friends since 2008. He was retired
from Tinker Air Force Base, was receiving
approximately $4,400.00 per month in combined retirement and disability and had
$50,000.00 in savings. Before the parties married, Husband bought and paid for several
vehicles for Wife and her grown son. Wife’s
grown son lived in the marital home with the
parties, rent-free. After the parties separated,
Wife’s other grown son moved into the marital
home. Husband paid the mortgage on the
marital home and Wife’s vehicle for ten (10)
months after the parties separated.
¶6 After the trial, the trial court found clear
and convincing evidence overcame the presumption of Husband’s gift of the Meeker
property to the marital estate. The court found
1223
Husband “exhausted a very sizable savings
during this one-year marriage attempting to
appease [Wife] and the Court finds that the
issues involving this property were merely
that.” Wife now appeals from this portion of
the trial court’s decree.
¶7 A suit for the dissolution of marriage is
one of equitable cognizance in which the trial
court has discretionary power to divide the
marital estate. Smith v. Villareal, 2012 OK 114,
¶7, 298 P.3d 533. “In an action of equitable cognizance there is a presumption in favor of the
trial court’s findings and they will not be set
aside unless the trial court abused its discretion
or the finding is against the clear weight of the
evidence.” Id. at ¶7.
¶8 Title 43 O.S. 2011 §121 requires the trial
court to fairly and equitably divide the property acquired by the parties jointly during their
marriage. “Jointly-acquired property is the
property which is accumulated by the joint
industry of the spouses during the marriage.”
Smith at ¶8. Wife does not dispute the Meeker
property was purchased and owned by Husband prior to the one-year marriage. Wife
argues, instead, that Husband’s act of placing
title to this property into his and Wife’s names
as joint tenants evinced his donative intent to
gift this property to the marital estate. Oklahoma law provides otherwise.
A transfer by one spouse of separate
property to another does not by itself erase
the separate character of the asset or real
property transferred; rather, the original
ownership regime must be respected unless
there is proof of an interspousal gift. The
law provides a rebuttable presumption of a
gift where title to separately held real estate
is placed by one owner-spouse in both
spouses’ names as joint tenants. This presumption arises even if the property in
question was purchased with one spouse’s
separate funds, as in this case.
The presumption in favor of a gift can be
overcome by clear and convincing evidence of contrary intent, including evidence of a purpose for placing the property
in joint tenancy that is collateral to making
a gift.
Smith at ¶¶9 & 10 (footnotes omitted).
¶9 The sole issue briefed on appeal is whether
the trial court erred in ruling Husband rebutted
the presumption that he gifted the Meeker prop1224
erty to the marital estate. Based on the foregoing
law, the trial court must determine whether the
presumption of an interspousal gift was rebutted with clear and convincing evidence that title
was transferred for a collateral purpose other
than a change in the existing ownership regime.
Beale v. Beale, 2003 OK CIV APP 90, ¶12, 78 P.3d
973, citing Larman v. Larman, 1999 OK 83, ¶10,
991 P.2d 536. Although there was conflicting
testimony, the trial court determined Husband
did not possess donative intent when he conveyed the Meeker house’s title to both spouses
in joint tenancy. The court found Husband
transferred title solely for the purpose of
appeasing Wife’s repeated demands. “The trial
court, being in the best position to evaluate the
demeanor of the witnesses and to gauge the
credibility of the evidence, will be given deference as to the conclusions it reaches concerning
those witnesses and that evidence.” Beale at ¶6
(citation omitted). “The 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.
The court’s judgment need not rest upon
uncontradicted evidence.” Mueggenborg v. Walling, 1992 OK 121, ¶7, 836 P.2d 112.
¶10 We defer to the trial court’s conclusion
that the clear evidence demonstrated Husband
did not have the donative intent to gift his
Meeker property to the marital estate. Thus,
despite the evidence that Husband added
Wife’s name to his separate property’s title as a
joint tenant five months into the marriage, the
trial court held Husband rebutted the presumption of a gift to Wife. Based on our review,
we hold the trial court did not abuse its discretion or hold contrary to the weight of the evidence when it determined the Meeker property
was not a part of the marital estate.
¶11 Husband’s request for appeal-related
attorney fees is denied. Husband’s motion to
strike Appellant’s reply brief is also denied.
¶12 AFFIRMED.
MITCHELL, J., and GOREE, J., concur.
2014 OK CIV APP 33
CITY OF TULSA and OWN RISK #10435,
Insurance Carrier, Petitioners, vs. BRIAN S.
O’KEEFE and THE WORKERS’ COMPENSATION COURT, Respondents.
Case No. 111,283. January 31, 2014
Vol. 85 — No. 15 — 5/24/2014
PROCEEDING TO REVIEW AN ORDER OF
A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT
THREE-JUDGE PANEL’S ORDER VACATED;
TRIAL COURT ORDER REINSTATED
Jordan S. Ensley, Brandy L. Shores, LATHAM,
WAGNER, STEELE & LEHMAN, Tulsa, Oklahoma, for Petitioners,
John N. MacKenzie, Tulsa, Oklahoma, for
Respondent.
Bay Mitchell, Judge:
¶1 Employer City of Tulsa and its insurance
carrier, Own Risk #10435 (Employer), seek
review of a unanimous order of the Workers’
Compensation Court Three-Judge Review
Panel. The Panel vacated the trial court’s order
denying compensability, determining that it
was contrary to law and against the clear
weight of evidence. The Panel found Claimant
sustained an accidental injury to the RIGHT
LEG (SPIDER BITE) arising out of and in the
course of employment and awarded medical
treatment as reasonable and necessary to
Respondent Brian S. O’Keefe (Claimant).
Because we find the Panel’s determination is
contrary to law and against the clear weight of
evidence, its order is hereby vacated and the
trial court’s order is reinstated.
¶2 Claimant was employed as an “address
coordinator,” which entailed duties primarily
performed at a desk in an office cubicle on the
fourth floor of City Hall in Tulsa. On Wednesday, February 22, 2012, Claimant was working
at his desk when he felt a “zing” sensation in
his right leg. After he scratched the area, he
noticed blood on his hands. He never saw a
spider or otherwise discerned the source of the
“zing.” He awoke the following morning with
flu-like symptoms, which persisted for the next
few days. During this time, Claimant noticed
inflammation and blistering on his right leg.
The swelling and discomfort in his leg increased
throughout the following weekend. On Monday, February 27, 2012, Claimant sought treatment from a chiropractor, who performed a
laser treatment to the affected area. The right
leg symptoms thereafter worsened, prompting
Claimant to seek further medical evaluation at
a clinic the following day. Care providers at
that facility transported Claimant to a hospital
emergency room for treatment and subsequent
admission for two nights and three days of
intravenous antibiotic treatment. Hospital medVol. 85 — No. 15 — 5/24/2014
ical records describe the leg condition as a right
lower extremity infection with abscess, which
was excised and drained in the emergency
room. Claimant was diagnosed with “cellulitis
of the leg” and “methicillin resistant staphylococcus aureus elsewhere.”1
¶3 Claimant filed his Form 3 claiming a single incident work-related injury alleging his
right leg condition was caused by a spider bite,
which occurred while he was working at his
desk. Employer argued the injury was not
compensable because in the absence of a causal
connection between the employment and the
alleged spider bite injury, the injury cannot be
construed as one arising out of the employment within the meaning of Oklahoma law.
¶4 The trial court agreed with Employer and
entered its Order Denying Compensability,
noting that while Claimant sustained an injury
in the course of his employment, he failed to
prove the injury arose out of the employment.
The Order further explains “[t]he claimant
failed to establish by a preponderance of evidence that the spider bite ‘was causally related
to the risks incident to his mission for employer.’” American Management Systems v. Burns,
1995 OK 58, 903 P.2d 288, 291. Claimant
appealed to the Review Panel, which vacated
the trial court’s Order Denying Compensability.2 Employer appeals.3
¶5 This Court on appeal may set aside the
Workers’ Compensation Court’s order or award
upon a determination that the order or award
was contrary to law or against the clear weight
of the evidence. 85 O.S. 2011 §340(D).4 The law
places the burden of proof on the employee “to
establish by a preponderance of the evidence
that such unexpected or unforeseen injury was
in fact caused by the employment.” 85 O.S.
2011 §308(10)(a.) (defining “compensable injury”).“There is no presumption from the mere
occurrence of such unexpected or unforeseen
injury that the injury was in fact caused by the
employment.” Id. Further, compensability is
dependent upon proof of two distinct elements: that injury must occur (1) in the course of
and (2) arise out of the worker’s employment.
Burns, 1995 OK 58, ¶5, 903 P.2d at 290. As for
proof of the second element, there must be a
causal relationship between the injury suffered
and “the risks incident to [Claimant’s] mission
for the employer.” Id. “Whether an employee’s
injury arises out of employment — i.e., results
from a risk which is reasonably connected to an
1225
assigned task - presents an issue of fact to be
determined by the trial judge.” Id. at ¶6.
¶6 The determinative inquiry is whether
there is a causal nexus between Claimant’s leg
injury and the risks of his employment as
opposed to one stemming from “a purely personal risk.” Id. Another division of this Court
has held an employee’s injury from a spider
bite did not arise out of her employment as a
sales representative. Copeland v. Boots Pharmaceuticals, 1996 OK CIV APP 8, 916 P.2d 277, cert.
denied. In Copeland, the Court reasoned there was
no evidence that the employee’s work as a sales
representative for her employer had any connection to the risk of encountering poisonous spiders. Copeland provides in the absence of the
causal nexus, claimant’s risk of being bitten is a
purely personal risk for which injuries suffered
thereby are non-compensable. Id. at ¶10.
¶7 Although it is not entirely clear Claimant’s leg condition here was actually caused by
a spider bite, assuming the truth of this allegation, we find the risk of being bitten by a spider
is not reasonably connected to Claimant’s
assigned tasks as an address coordinator for
the City of Tulsa. Claimant presented no evidence that work performed while sitting at an
office desk and/or interacting with members
of the public on behalf of Employer in the performance of his duties had any connection to
the risk of encountering spiders. Rather, based
on the record presented, we find his job exposed
Claimant to no greater risk of being bitten by a
spider than the general public. See Burns, 1995
OK 58, ¶7, 903 P.2d at 292 (noting “[t]he law
demands that the risk responsible for injury be causally connected to employment and exceed the ordinary hazards to which the general public is
exposed.”). Insomuch as Claimant failed to
prove the requisite causal connection between
his right leg injury and the risks of his employment, the trial court correctly determined the
injury to have stemmed from a purely personal
risk rather than arising out of Claimant’s
employment. The review Panel erroneously
vacated the trial court’s order.
¶8 The Three-Judge Panel’s Order on Appeal
Vacating the Decision of the Trial Court is
hereby VACATED and the trial court’s July 30,
2012 Order Denying Compensability is hereby
REINSTATED.
BELL, P.J., and HETHERINGTON, V.C.J. (sitting by designation), concur.
1226
1. Additional diagnoses include leukocytosis (noted as improving
upon hospital discharge), bandemia and positive SIRS criteria, which
were resolved upon discharge from the hospital. These conditions all
generally pertain to infection.
2. The En Banc Panel’s Order fails to disclose any explanation
underlying its decision to reverse the trial judge’s decision contrary to
the statutory mandate for “specific findings to explain such reversal.”
85 O.S. 2011 §340(A) (This section will be repealed on February 1, 2014
pursuant to the terms of Laws 2013, c. 208, §171; see also 85A O.S. §78,
effective February 1, 2014).
3. We note Claimant’s “Brief in Chief” on appeal fails to conform
to Okla. Sup. Ct. R. 1.11 in that it contains neither an index nor any
citation to the record in support of its summary of facts. Further,
Claimant cites no authority whatsoever in support of his argument
that Claimant’s injury arose out of the employment and/or is otherwise compensable.
4. This standard of review is applicable to claims for injuries,
which occurred after the effective date of the 2010 statutory amendment. Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, 295 P.3d 1107
(holding the law in effect at the time of injury determines the standard
of review in workers’ compensation appeals).
5. This section will be repealed on February 1, 2014, pursuant to the
terms of Laws 2013, c. 208, §171.
2014 OK CIV APP 34
PROLINE PRODUCTS, L.L.C., Plaintiff/
Appellee, vs. TIM McBRIDE AND
CAMERON McBRIDE, Defendants/
Appellants.
Case No. 111,590. March 17, 2014
LOGAN COUNTY, OKLAHOMA
HONORABLE LOUIS A. DUEL,
TRIAL JUDGE
AFFIRMED
Ryan S. Wilson, Derek B. Ensminger, HARTZOG, CONGER, CASON & NEVILLE, Oklahoma City, Oklahoma, for Plaintiffs/Appellee,
Phillip L. Free, Blake Lawrence, HALL, ESTILL,
HARDWICK, GABLE, GOLDEN & NELSON,
P.C., Oklahoma City, Oklahoma, for Defendants/Appellants.
BRIAN JACK GOREE, Judge:
¶1 Defendant/Appellants, Tim McBride and
Cameron McBride, seek review of the trial
court’s order granting the motion of Plaintiff/
Appellee, ProLine Products, L.L.C. (ProLine), for
a temporary injunction preventing them from
using any portion of the ProLine formulas to create an asphalt cold-patch additive. We hold the
trial court’s fact findings are not clearly against
the weight of the evidence, and it did not abuse
its discretion in determining there is a likelihood
of success on the merits of ProLine’s claim for
misappropriation of a trade secret.
¶2 Tim and Cameron are the son and grandson, respectively, of ProLine’s owner and president, Don McBride. ProLine sued Tim and
Vol. 85 — No. 15 — 5/24/2014
Cameron, alleging they had misappropriated
ProLine’s formulas in violation of Oklahoma’s
Uniform Trade Secrets Act (Act), 78 O.S. 2011
§§85-94, causing damage and irreparable harm
to ProLine. ProLine sought to recover damages
and to enjoin Tim and Cameron from using the
ProLine formulas for any purpose. It moved
for a temporary injunction, asserting that Tim
and Cameron’s continued misappropriation of
the formulas was causing irreparable harm.
¶3 After an evidentiary hearing, the trial
court granted the motion, finding that (1) ProLine owned two confidential formulas used to
make asphalt products called ProLine Cold
Patch and ProLine Bunker Material, (2) the formulas derived independent economic value
from not being generally known or readily
ascertainable, (3) the formulas are subject to
reasonable efforts to maintain their secrecy, (4)
the formulas are trade secrets, and (5) Defendants were privy to the formulas when they
were employees of an affiliated company. The
trial court ruled that (1) ProLine was likely to
succeed on the merits, (2) irreparable harm to
ProLine would result if the Defendants were
not enjoined from misappropriating the formulas, (3) the effect of injunction on the Defendants is slight but failure to grant an injunction
would have a substantial effect on ProLine,
and (4) public policy weighs in favor of granting injunctive relief. The trial court enjoined
Tim and Cameron from using the formulas in
any manner and from disclosing them to third
parties. It stated:
This injunction is intended to encompass any attempt by Defendants to use any
portion of the ProLine Formulas, even with
independent improvements or modifications, to sell or create a cold patch additive
for use in the asphalt industry or bunker
material if any such additive or the process
used to create it is substantially derived
from the ProLine Formulas.
Tim and Cameron appeal from this order pursuant to 12 O.S. 2011 §952(b)(2), contesting the
sufficiency of the evidence.
¶4 In reviewing a trial court’s order granting
or denying injunctive relief, we will examine
and weigh the evidence, but we will not disturb the trial court’s judgment unless the trial
court has abused its discretion or the decision
is clearly against the weight of the evidence.
Sharp v. 251st Street Landfill, Inc., 1996 OK 109,
¶4, 925 P.2d 546, 549. The grounds for issuing a
Vol. 85 — No. 15 — 5/24/2014
temporary injunction in Oklahoma are: (1) the
likelihood of success on the merits, (2) irreparable harm to the party seeking injunctive
relief if relief is denied, (3) relative effect on the
other interested parties, and (4) public policy
concerns arising out of the issuance of injunctive relief. Daffin v. State ex rel. Oklahoma Dep’t
of Mines, 2011 OK 22, ¶7, 251 P.3d 741, 745. In
contesting the sufficiency of the evidence, Tim
and Cameron appear to be challenging the trial
court’s determination of the first factor, likelihood of success on the merits.
¶5 Tim and Cameron first argue that ProLine
failed to prove the existence of a trade secret.
Pursuant to the Uniform Trade Secrets Act, 78
O.S. 2011 §86(4), a trade secret means:
[I]nformation, including a formula, pattern, compilation, program, device, method, technique or process, that:
a. derives independent economic value,
actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its
disclosure or use, and
b. is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.
¶6 Don McBride testified that he and a chemist spent four years working on a formula for
cold-patch formula, sending materials to each
other and testing them. He said they found a
special ingredient (Ingredient) that made the
cold-patch asphalt workable in all seasons.
Don said that Ingredient was the reason that
his cold-patch product was better than and
preferred over his competitors’ products.
¶7 Don testified that if the ProLine formula
became “unsecret,” it would “kill the asset
value of it.” He said that Tim did the blending
of the components pursuant to the recipe provided and therefore knew the formula. Don said
he had many discussions with Tim regarding the
secret nature of the formula and Tim assured
him the secret was safe. After a falling-out and
reconciliation in 2011, Don had Tim and other
family members and employees sign non-disclosure agreements to protect the formula.
¶8 Don’s testimony is clear and convincing
evidence establishing prima facie that the ProLine formula is a trade secret. The evidence
that Tim and Cameron offered to controvert the
1227
existence of a trade secret was published material of a third party which discussed asphalt
additives in the context of hot-mix applications. This evidence does not negate ProLine’s
trade secret claim because it does not demonstrate that use of Ingredient in cold-patch
applications is generally known. Furthermore,
Tim agreed that ProLine was better than competing products because of its unique formulation containing Ingredient. Based on this record,
the trial court’s finding the formula is a trade
secret is not clearly against the weight of the
evidence.
¶9 Tim and Cameron’s second contention is
that ProLine failed to prove they had misappropriated any trade secret. Under the Act, 78
O.S. 2011 §86(2)(b)(2)(b), misappropriation
includes “use of a trade secret of another without express or implied consent by a person
who ... at the time of disclosure or use, knew or
had reason to know that his knowledge of the
trade secret was ... acquired under circumstances giving rise to a duty to maintain its
secrecy or limit its use....” A trade secret is
“used” if a product or process is substantially
derived from the trade secret, even if it is with
independent improvements or modifications.
MTG Guarnieri Mfg., Inc. v. Clouatre, 2010 OK
CIV APP 71, ¶17, 239 P.3d 202, 211. Tim asserts
he did not use ProLine’s trade secret and that
his cold-patch product uses different ingredients from ProLine’s product.
¶10 Don testified that during their 2011 falling out, Tim told him, “I’ll manufacture ProLine because I own it as much as you do.” He
said he then learned that Tim had set up
accounts to order the same materials used to
manufacture ProLine Cold-Patch. Don said he
also learned that Tim was having discussions
with a ProLine distributor in Texas to cut him
out and sell them the ProLine additive that he
was manufacturing. He testified he then sent a
cease-and-desist letter. After he and Tim reconciled, Don purchased from Tim the materials
that Tim had ordered and used them to manufacture ProLine.
¶11 Don testified that in 2012, Tim and Cameron left the family company again. At the same
time, the Texas distributor stopped ordering
supplies from ProLine. Tim testified that he and
Cameron spent four to five months on research
and development of a new cold-patch product.
He said he did not use the ProLine formula.
However, Tim acknowledged that he looked for
an ingredient with the same characteristics as
1228
Ingredient. He also acknowledged that the Texas
distributor bought his product and was paying
his attorney fees in the present case.
¶12 This record provides clear and convincing evidence that Tim developed his formulation based on his knowledge of the characteristics of Ingredient and therefore his product was
substantially derived from ProLine’s trade
secret. The trial court’s finding is not clearly
against the weight of the evidence.
¶13 For the foregoing reasons, we hold the
trial court did not abuse its discretion in determining there is a likelihood of success on the
merits on ProLine’s claim for misappropriation
of a trade secret. Its order granting a temporary
injunction is AFFIRMED.
BELL, P.J., and MITCHELL, J., concur.
2014 OK CIV APP 35
RONALD TRENTHAM, Plaintiff/Appellant,
vs. NORMAN ISAACS, ALEX MINK, and
DEAN THOMAS, Defendants/Appellees,
and STILWELL AREA DEVELOPMENT
AUTHORITY, Intervenor/Appellee.
Case No. 111,754. December 19, 2013
ADAIR COUNTY, OKLAHOMA
HONORABLE THOMAS H. ALFORD,
JUDGE
AFFIRMED
Barry K. Roberts, Norman, Oklahoma, for
Plaintiff/Appellant,
Ronald D. Cates, Tulsa, Oklahoma, for Defendant/Appellee Alex Mink and Intervenor/
Appellee, and Lloyd E. Cole, Stilwell, Oklahoma, for Intervenor/Appellee.
Kenneth L. Buettner, Presiding Judge:
¶1 Plaintiff/Appellant Ronald Trentham
(Mayor) challenged actions taken by three
members of the Stilwell City Council, Defendants/Appellees Norman Isaacs, Alex Mink,
and Dean Thomas (collectively, “Council Members”) and sought judgment declaring the parties’ rights under a city charter. Stilwell is a
home rule charter city governed by a mayor
and a five-member city council; the dispute
here is between Mayor and a majority of the
council over their respective powers. The
record shows no dispute of material fact. The
issues of law presented are who may appoint
Vol. 85 — No. 15 — 5/24/2014
the city attorney and members of the utility
board, and whether the mayor may veto ordinances passed by the council. The Stilwell city
council violated an ordinance which authorized Mayor to appoint the city attorney, but
the city council later repealed that ordinance,
which resulted in the council having authority
to name the city attorney. Mayor purported to
veto the repealing ordinance, but the city charter
includes a list of the mayor’s powers, which list
does not include veto authority, and the charter
prevails over a statute affording a veto power to
mayors of non-charter cities. Following the
repeal, appointing a city attorney was the task of
the council. The council also violated the charter
in purporting to appoint a member to the utility
board. Stilwell’s charter provides for the mayor,
with the council’s approval, to appoint members
to the utility board and where there is a vacancy,
the charter provides for the remaining utility
board members to recommend a new member
with approval of the council. On de novo review
of the questions of law presented, we affirm
summary judgment.
¶2 In Mayor’s August 8, 2011 Petition, he
alleged Council Members violated the city
charter, Ordinance 183, and state law by making or attempting to make appointments that
were reserved to Mayor. Mayor sought an
injunction prohibiting Council Members from
violating the charter and state law, as well as
an order vacating or invalidating the appointments made by Council Members.
¶3 Council Members responded that a different section of the charter gave them the authority to select officers and employees of the City.
They contended that under Oklahoma law, a
city charter trumps ordinances which are inconsistent with the charter and that therefore the
ordinance cited by Mayor was not controlling.
¶4 Mink filed an Answer and Counterclaim,
in which he admitted Mayor’s allegations,
but denied Council Members’ actions violated the charter, City’s ordinances, or state law.
In his counterclaim, Mink sought a judgment
declaring the powers of Mayor and Council
Members.
¶5 The trial court entered an order October
20, 2011 denying Council Members’ motion to
dismiss (that motion is not part of the record
on appeal) and granting a temporary injunction to Mayor. The court found that Council
Members’ appointment of a city attorney violated Ordinance 183 and enjoined Council
Vol. 85 — No. 15 — 5/24/2014
Members from further acting in violation of
that ordinance.
¶6 Mayor filed his Amended Petition December 13, 2011. He alleged Council Members
again violated the city charter by refusing to
confirm Mayor’s appointment to the Municipal Utilities Board and by attempting to appoint
a person to that board without Mayor’s involvement, then later appointing a person to that
board in violation of the temporary injunction.
Finally, Mayor alleged Council Members had
passed an ordinance repealing Ordinance 183,
which Mayor contended violated state law.
Mayor sought a judgment declaring the rights
of the parties and the applicability of various
ordinances and laws.
¶7 The Stilwell Area Development Authority
(Authority) intervened January 27, 2012, asserting it was a public trust and had an interest in
the determination of the authority and procedure for appointing members to Authority.
¶8 Mayor filed his Motion for Summary
Judgment April 17, 2012. Mayor asserted ten
undisputed facts supported judgment in his
favor.1 Mayor asserted four issues remained to
be decided by the trial court: whether Council
Members violated Ordinance 183 and the charter in naming Lloyd Cole as city attorney, whether Council Members violated the charter in
appointing Morton to the Utility Board; whether
Mayor had the authority to veto ordinances
adopted by Council Members, and whether
Council Members had authority to employ a city
attorney not appointed by Mayor.
¶9 Authority responded to Mayor’s summary judgment motion May 24, 2012. Authority
did not dispute Mayor’s statements of fact. It
alleged an additional undisputed fact was that
Mayor was recognizing a former city attorney
whose contract had expired as the current city
attorney. Authority asserted that Ordinance
183 required the concurrence of the mayor and
city council on the appointment of a city attorney, and noted Council Members had not
approved any city attorney candidates other
than Lloyd Cole. Mink filed a Motion for Summary Judgment, without argument, and a
response to Mayor’s Motion for Summary
Judgment, in which he stipulated there was no
dispute to Mayor’s statements of fact.
¶10 Isaacs and Thomas filed their own
Motion for Summary Judgment, in which they
admitted Mayor’s statements of fact 1-9. They
listed four additional statements of undisputed
1229
facts: 1) Mayor failed to make an appointment
to the utility board prior to June 1, 2011; 2) Neil
Morton’s term on the utility board expired
June 1, 2011, resulting in a vacancy on the
board; 3) Authority recommended re-appointing Morton to fill the vacant seat; and 4) Mayor
attempted to veto Council Members’ repeal of
Ordinance 183. Isaacs and Thompson posited
three issues of law presented by the undisputed facts: 1) whether Section 36 of the city charter controls the selection and appointment of a
city attorney (resulting in Ordinance 183 being
void); 2) whether the mayor may veto an act of
the city council; and 3) whether Morton was
properly appointed and confirmed to the utility board.
¶11 Mayor filed a response in which he
admitted the first, third and fourth facts asserted by Isaacs and Thompson, and asserted the
second was a legal conclusion, which Mayor
denied.
¶12 Following a hearing held August 17,
2012, the trial court filed its Journal Entry of
Judgment March 21, 2013. The trial court found
that Ordinance 183 authorized the mayor to
appoint the city attorney and was a valid ordinance at the time Council Members purported
to appoint Cole as city attorney July 5, 2011,
and that such act violated the ordinance and
was invalid. The trial court noted that Stilwell
operates under a charter form of municipal
government and its charter does not include a
provision allowing the mayor to veto a duly
enacted ordinance. The court concluded that
Mayor does not have authority to veto an ordinance. The court noted the charter also provides that all officers and employees, other
than elected officials and except as otherwise
specifically provided, shall be appointed by
and serve at the pleasure of the council. The
court held that after the council repealed Ordinance 183, the charter included no reference to
a city attorney, and therefore pursuant to the
charter, the council had the authority to appoint
a city attorney without prior appointment by
Mayor.
¶13 The court also noted that the city charter
provides for the mayor to make appointments
to the utility board, with confirmation by the
council, and that when Morton’s term expired
it was Mayor’s responsibility to name a successor. The court found that the charter also provides that vacancies in offices are to be filled by
the council. The court noted the general rule
that a public officer holds his position until a
1230
successor is named, so there was no vacancy
on the board. The court found that the council’s purported appointment to the board was
therefore invalid. The court held that Morton
remained in his position on the board until a
successor is confirmed by the procedure established in the charter.
¶14 Mayor appeals the declaratory judgment. The material facts are undisputed; the
issues presented are questions of law, which
we review de novo. Panhandle Producers & Royalty Owners Ass’n v. Oklahoma Tax Com’n, 2007
OK CIV APP 68, ¶7, 162 P.3d 960. The legal
questions presented by these facts are whether
Mayor has authority to veto an ordinance,
whether Mayor or the council may appoint a
city attorney, and which party may name a
member of the utility board and whether there
was a vacancy on that board when the council
did not approve Mayor’s appointment.
¶15 We address the veto question first. There
is no dispute that Ordinance 183 provided for
Stilwell to have a city attorney and directed
that the city attorney would be appointed by
the mayor with the consent of the governing
body. There is also no dispute that after Mayor
and Council Members disagreed on the city
attorney appointment, the council voted to
approve an ordinance repealing Ordinance
183. Mayor signed the repealing ordinance, but
he marked through the word “passed” and
wrote “veto” above it. The effect of the repeal
of Ordinance 183 would be that the council
would select and appoint the city attorney.
Stilwell Charter, Art. IX, §36.
¶16 Mayor contends Stilwell has an aldermanic form of government, and he notes that in
the Oklahoma Municipal Code, the powers and
duties of a mayor of an aldermanic city include
the power to veto ordinances.2 While Stilwell’s
government is similar to the statutory aldermanic form, the key distinction is that Stilwell
has a charter. In Oklahoma, municipalities are
divided into two categories: charter and noncharter (or statutory) municipalities. Section
9-106 applies to statutory municipalities.
A ‘statutory’ municipality is one organized and governed in accordance with the
provisions of 11 O.S. 9-101 through 11 O.S.
9-118 (1981) (aldermanic); 11 O.S. 10-101
through 11 O.S. 10-121 (council-manager);
11 O.S. 11-101 through 11 O.S. 11-125 (strong
mayor-council); or 11 O.S. 12-101 through
11 O.S. 12-114 (town board of trustees).
Vol. 85 — No. 15 — 5/24/2014
A ‘statutory’ municipality has no inherent power or authority. It possesses and
can exercise only those powers expressly
granted, or incidental to powers expressly
granted, by the state. . . .
In Morehead v. Dyer, 1973 OK 121, 518
P.2d 1105, the Court held that a ‘statutory’
city had no power to hold recall elections
because no constitutional or statutory provision authorized such recall elections. . . .
The power of non-charter i.e. ‘statutory’
municipalities are such as are expressly
granted or necessarily implied from a
statute.
19 Okl. Op. Atty. Gen. 215, Okl. A.G. Opin. No.
87-112 (citations partly omitted).3
As a charter city, Stilwell is governed by its
charter, which acts as its constitution.
A ‘charter’ municipality is a municipality which has adopted a charter in accordance with Okla. Const. Article XVIII, Section 3(a) and the laws of Oklahoma and, at
the time of adoption of the charter, had a
population of 2,000 inhabitants or more….
It is well established that ‘a city charter
which is adopted and approved in accordance with the Constitution Okla. Const.
Article XVIII, Section 3(a) and which is not
inconsistent therewith becomes the organic
law of the city and supersedes all laws of the
state in conflict therewith insofar as such
laws relate to merely municipal matters.’…
If the exercise of municipal power conflicts with state law, the conflict is resolved
by determining whether the exercise of
municipal power pertains to purely municipal affairs. . . .
Id. (citations omitted).
¶17 Article VI, Section 76 of Stilwell’s charter
establishes the mayor’s powers and duties.4
Mayor acknowledges that where a charter and
state law conflict, the charter will prevail on
matters of purely municipal concern. Mayor
contends there is no conflict; instead, he urges
§ 76 is silent on the question of a veto power
and that we must therefore look to state law,
specifically § 9-106 to determine whether a
mayor has authority to veto ordinances. Mayor
contends § 9-106 supplements the allegedly
silent charter. For this argument, Mayor relies
on Development Industries, Inc. v. City of Norman,
Vol. 85 — No. 15 — 5/24/2014
1966 OK 59, 412 P.2d 953, in which the Oklahoma Supreme Court stated “it should be
noted that while the City of Norman has a
charter, the same is silent insofar as authorizing the City Commission to enact zoning ordinances. The City Charter not expressly providing for zoning ordinances, the power to enact
such ordinances is derived from legislative
enactments.” Id. at 955. Mayor also relies on
City of Muskogee v. Senter, 1939 OK 375, 96 P.2d
534, 186 Okla. 174, in which the charter stated
the mayor “shall sign all contracts, bonds, or
other instruments requiring assent of the City
and take care that the same are duly performed.” There the mayor signed a contract for
an architect’s services without approval by the
city counsel. The architect urged that the charter allowed the mayor to bind the city unilaterally. The Oklahoma Supreme Court disagreed,
noting that state law provided that a mayor
could not bind a city to a contract without the
approval of the council.
¶18 We are not persuaded that either of these
cases support a finding that the mayor of
Stilwell has a veto power. We disagree that the
charter is silent on this question because the
charter expressly states the mayor’s rights and
duties — particularly that the mayor “shall see
to the faithful execution of all laws and ordinances” and that the mayor shall not have a
vote (unless there is a tie). Whether a mayor
may veto ordinances is a matter of local concern; to the extent there is a conflict, the local
charter prevails. We find Mayor’s powers and
duties are limited to those acts expressed in the
charter. There is no indication that the charter’s
provision for repealing an ordinance was not
followed in this case. Accordingly, Mayor’s
duty is to see to the faithful execution of the
repealing ordinance.
¶19 Following the repeal of Ordinance 183, the
authority to appoint a city attorney was found in
§36 of the charter. That section provides:
All officers and employees of the City of
Stilwell, other than elective officers and
except as hereinafter specifically provided,
shall be selected and appointed by the
Council. Their term of office, conditions of
servitude, and compensation shall be fixed
by the Council and they shall hold office
during the pleasure of the Council.
This charter provision authorizes the council to
name a city attorney. At the time Council Members purported to appoint a city attorney in
1231
July 2011, Ordinance 183 remained in effect
and Council Members violated that provision
then. After the repealing ordinance was passed
by a majority of the council, the council was
free to name a city attorney under §36.
to appoint Morton to the utility board. We
agree with the trial court that Morton remains
in his position until a successor is named by
Mayor and approved by the council, as directed by the charter. AFFIRMED.
¶20 Lastly we consider the parties’ dispute
over appointments to the utility board. Article
IX, Section 99 of the Charter creates a “municipal utility board which shall consist of five
members possessing the same qualifications as
members of the City Council and who shall be
appointed by the mayor with the confirmation
of the Council.” Section 100 of the charter provides that members of the utility board shall be
appointed on the 1st day of June or the first
Monday thereafter. Council Members argue
that because Mayor did not name a successor
to fill the expiring seat of Neil Morton by June
1, 2011, the seat became vacant. Council Members assert they rightly named a successor
under Section 103 of the charter, which states:
JOPLIN, C.J., and BELL, J., concur.
Vacancies in the membership of said Utility
Board by reason of death, resignation,
removal or any other cause, shall be filled
by the recommendation of the remaining
Board members of the Utility Board and
the approval of the City Council, and said
appointee shall serve during the unexpired
term . . . , of such appointments.
Council Members alternatively contend that if
there was no vacancy due to Mayor’s failure to
make an appointment by June 1, then Morton
was held over in the office. We disagree with
Council Members and the trial court that Section 103 allows the council to name a person to
fill a vacancy on the utility board. That section
provides that the remaining board members
recommend a new member subject to the council’s approval. Nevertheless, we agree that
there was no vacancy simply because a successor was not named by June 1. We agree with
the trial court’s reliance on the general rule that
a person whose term is expiring holds over
until his successor has been duly appointed
under the terms of the charter. See Okla. Const.
Art. 6, §12; 51 O.S.2011 § 15 (“Every appointed
officer shall hold his office until the end of the
term for which the officer whom he succeeds
was elected or appointed, and until his successor is elected and qualified.”). Were we to
adopt Council Members’ argument, they could
subvert the charter’s intended method of selecting utility board members simply by rejecting
the mayor’s nominees until after June 1. Council members violated the charter in purporting
1232
Kenneth L. Buettner, Presiding Judge:
1. Mayor asserted there was no dispute that: 1) he was the mayor
of Stilwell; 2) Isaacs, Mink, and Thomas were members of the Stilwell
City Council; 3) Stilwell adopted a City Charter October 29, 1946; 4)
Stilwell adopted Ordinance 183 on June 4, 1987, which provided for
the mayor to appoint a city attorney; 5) Council Members named
Lloyd Cole as city attorney July 5, 2011, without Mayor’s prior
appointment; 6) Mayor appointed Bill Garrett to the Stilwell Municipal
Utility Board June 21, 2011, and Council Members rejected the appointment; 7) Mayor withdrew the appointment of Garrett and appointed
Ross Roye to the Stilwell Municipal Utility Board November 4, 2011; 8)
Council Members rejected the appointment of Roye November 7, 2011,
and appointed W. Neil Morton to the Utility Board without him first
being appointed by Mayor; 9) Council Members voted to repeal Ordinance 183 November 7, 2011; and 10) Mayor vetoed the repeal of
Ordinance 183 and gave Council Members notice of the veto November 14, 2011.
2. 11 O.S.2011 §9-106 provides:
The mayor may sign or veto any city ordinance or resolution passed by
the city council. Any ordinance or resolution vetoed by the mayor may
be passed over his veto by a vote of two-thirds () of all the members of
the council. If the mayor neglects or refuses to sign any ordinance or
return it with his objections in writing at the next regular meeting of
the council, the ordinance shall become law without his signature.
3. Attorney General opinions are persuasive authority. National
Cowboy Hall of Fame & Western Heritage Ctr. v. State ex rel. Okla. Human
Rights Comm., 1978 OK 76, 579 P.2d 1276.
4. That section provides:
(A) The Mayor shall sign all contracts, bonds, or other instruments
requiring the assent of the City and take care that the same are duly
performed.
(B) The Mayor shall call all special municipal elections as in this Charter or the laws of the State provides.
(C) He shall perform such other duties not inconsistent with the purposes and provisions of the Charter, as the Council may assign to him.
(D) He shall be the chief administrative officer of the city and shall
have charge and supervision of all branches of the City service except
as otherwise provided in this Charter.
(E) He shall see to the faithful execution of all laws and ordinances of
the City and State.
(F) He shall have power to dismiss any officer or employee appointed
by him whenever in his judgment the interests of the City service so
requires, except as herein provided.
(G) He shall control and direct the several officers and departments of
the City administration except as hereinafter provided.
(H) He shall have power at any time to investigate the affairs of any
department. He or any persons appointed by him for the purpose shall
have the power to compel the attendance of witnesses and production
of books, papers, and other evidence.
(I) He shall attend all meetings of the Council and may take part in the
discussions but shall not vote except in case of a tie when he may cast
the deciding vote.
(J) He shall keep the Council advised of all the needs of the City and
shall recommend measures for its adoption.
(K) He shall perform all such other duties as may be imposed on him
by this Charter or by ordinance.
2014 OK CIV APP 36
BRENDA HOUSE, an individual resident
of Ottawa County, Oklahoma, Plaintiff/
Appellant, vs. VANCE FORD-LINCOLNMERCURY, INC., an Oklahoma Corporation;
and FORD MOTOR CREDIT COMPANY,
L.L.C., a foreign limited liability company,
Defendants/Appellees.
Vol. 85 — No. 15 — 5/24/2014
Case No. 109,314. March 31, 2014
OTTAWA COUNTY, OKLAHOMA
HONORABLE ROBERT G. HANEY,
TRIAL JUDGE
AFFIRMED
James W. Dunham, Jr., JAMES W. DUNHAM,
JR., P.C., Tulsa, Oklahoma, for Plaintiff/Appellant,
Chris Harper, Phillip P. Owens, II, CHRIS
HARPER, INC., Edmond, Oklahoma, for
Defendant/Appellee, Vance Ford-LincolnMercury, Inc.,
Harvey D. Ellis, Jr., John M. Thompson, CROWE
& DUNLEVY, P.C., Oklahoma City, Oklahoma,
for Defendant/Appellee Ford Motor Credit
Company, L.L.C.
Wm. C. Hetherington, Jr., Vice-Chief Judge:
¶1 Brenda House (House) appeals a trial
court order denying her motion to vacate an
arbitration award and granting counter motions
by Vance Ford-Lincoln-Mercury Inc. (Vance)
and Ford Motor Credit Company, LLC (Ford)
to confirm the arbitration award. She also
appeals the trial court’s order which sent the
parties’ controversy to arbitration, claiming
she was denied due process by the trial court’s
refusal to conduct an evidentiary hearing. The
orders of the trial court ordering the controversy to arbitration and affirming the arbitrator’s award are AFFIRMED.
FACTS AND PROCEDURE
¶2 House purchased a 2008 Ford F-150 crew
cab with a Harley Davidson limited edition
package, from Vance on May 18, 2009. She
executed an Oklahoma Simple Interest Vehicle
Retail Installment Contract (the Contract), note
and security agreement, all of which are held
by Ford. The Contract lists the vehicle as new
but also states its mileage as 21,421 at the time
of her purchase. The cash price for the 2008
truck was $43,630.00. As part of the transaction, House received $6,200 credit for a 1998
Ford F-150 trade-in and a $500 rebate was
applied as a part of the down payment. She
received “new car” 1.9% financing with Ford
and a check from Vance for $500 for “TT&L”
(tag, title, and lien entry expenses).
¶3 The first page of the Contract contains the
following statement: “YOU ACKNOWLEDGE
Vol. 85 — No. 15 — 5/24/2014
THAT YOU HAVE READ AND AGREE TO
BE BOUND BY THE ARBITRATION PROVISION ON THE REVERSE SIDE OF THIS
CONTRACT.” (Emphasis in original.) The
arbitration provision on the reverse of the contract lists, inter alia, various rights given up,
such as the right to trial,1 and others not given
up, including the right to request a court to
review whether an arbitrator “exceeded its
authority,” and advises it is subject to “the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and
the Federal Rules of Evidence.” (Underlining
in original.)
¶4 House filed suit against Vance and Ford
(collectively, Appellees) on December 7, 2010,
and amended her petition on December 10,
2010, raising claims for breach of contract,
common law fraud, statutory fraud, deceit,
and Oklahoma Consumer Protection Act violations. All of her claims are premised, in whole
or in part, on the classification of the truck as
“new” or used, representations the truck’s
mileage was the result of its use as a demonstration vehicle and by a sales manager, and
the non-disclosure of a prior sale to another
consumer.
¶5 Following motions to compel arbitration
by Appellees, House responded, arguing fraud
was a threshold issue for resolution prior to
arbitration. The trial court entered a March 4,
2011 Order compelling arbitration and staying
the trial court proceedings until the conclusion
of the arbitration proceedings.
¶6 House filed a Petition in Error on April 1,
2011, in which she argued she was denied due
process by the trial court’s refusal to afford her
an evidentiary hearing on fraud in the inducement and questioning whether Appellees’
motions to compel arbitration were sufficient.
In a notarized Narrative Statement filed April
5, 2011, House states, inter alia, that at a regularly scheduled Motion Docket on March 4,
2011, after the trial court stated the parties were
going to arbitration, she requested an evidentiary hearing on the issue of fraud in the
inducement and asked the trial court’s leave to
present argument, and the trial court “stated
that counsel was free to do so, but that it would
‘not make any difference.’” Her counsel then
cited Hai v. Baptist Healthcare of Oklahoma, Inc.,
2010 OK CIV APP 3, 230 P.3d 914, described the
case as holding “where fraud in the inducement is properly pled, a plaintiff is entitled to
an evidentiary hearing of that issue before
being compelled to arbitrate,” and reiterated
1233
she moved for such a hearing. The trial court
stated, “You are going to arbitration,” and concluded the hearing.
¶7 House filed an Application for Stay of
Arbitration Pending Appeal and for Expedited
Ruling on Hearing with the Oklahoma Supreme
Court on April 11, 2011. The Court issued an
April 12, 2011 order advising her the motion
would not be considered until she had presented the motion to the trial court and the trial
court had ruled upon it. House filed a motion
in the trial court on April 12, 2011, seeking to
stay the arbitration pending appeal or for an
expedited ruling or hearing. An April 13, 2011
Order of the trial court denies that motion.
¶8 The Oklahoma Supreme Court granted
House’s Application for an Emergency Stay of
the arbitration process in an April 14, 2011
Order. Appellees filed a joint response to the
motion to stay, arguing Appellant failed to
meet the criteria under Okla.Sup.Ct. R. 1.15(c)
(2) for such a stay. After denying a request by
Appellant to file a reply, the Oklahoma Supreme
Court denied Appellant’s request for a stay
pending appeal, citing Rule 1.15, on May 4,
2011. The Court then issued a May 9, 2011
Order memorializing the denial of the application and, citing Rogers v. Dell Computer Corporation, 2005 OK 51, 138 P.3d 826 and 12
O.S.Supp.2006 § 1857(c), stating the “April 14,
2011 stay order is dissolved.”
¶9 An arbitration award was entered in
December of 2011. The trial court denied
House’s motion to vacate the award and granted separate motions by Appellees to confirm
the award in an April 6, 2012 Order. The 7-page
arbitration award, signed on December 6, 2011,
is attached as Exhibit A to the April 6, 2012
Order. The arbitrator finds the evidence did
not support a conclusion House was injured by
Vance’s non-disclosure of the prior transaction,
there was no evidence of misuse of the truck
prior to the sale to House, and she had no
problems with the truck during the approximately 30 months she had used the truck.2 In
the award, the arbitrator finds in favor of Vance
and Ford, grants no relief or award to House,
orders the parties to bear their own respective
attorney fees and costs, and assesses $1,275.00
in American Arbitration Association fees and
expenses and $9,463.80 for arbitrator compensation and expenses.
¶10 House filed an April 11, 2012 Supplemental Petition in Error in which she alleges
1234
the trial court erred by refusing to vacate the
arbitrator’s award because it fails to comply
with the parties’ arbitration agreement, the
award exceeds the arbitrator’s powers, and the
award disregards Oklahoma law. She raises
arguments going to the merits of the underlying transaction, such as Vance’s claims regarding what it asserted were a failed sale, the
truck’s status as new or used, and the nondisclosure of earlier transaction. House argues
the arbitration award does not qualify as the
required “reasoned award,” it contains “bare”
conclusions, and it therefore is impermissible
and outside of the arbitrator’s powers. She further claims the award manifestly disregards
applicable law and is subject to vacatur under
the Federal Arbitration Act (FAA).
¶11 In an April 13, 2012 Order addressing
deficiencies in the record, the Oklahoma
Supreme Court notes briefing was previously
completed in the appeal and House had filed a
Supplemental Petition in Error. Among other
things, the Court’s order sets dates for various
filings, and directs Appellees to respond to the
Supplemental Petition in Error, directs House
to “file a supplemental brief in chief, limited to
the issues raised by the April 6, 2012 order,”
directs “Appellee” to file a supplemental
answer brief, and allows House to file a reply
brief. House, Vance, and Ford each filed supplemental appellate briefs within the time limits set by the Court’s order.
THE APPEAL
¶12 We first address House’s allegations
regarding the trial court order compelling arbitration. She argues the parties’ contract is governed by Oklahoma law and it was error to fail
to conduct an evidentiary hearing on whether
the contract was induced by fraud. She further
contends the trial court failed to follow “proper
procedure” in considering Ford’s Motion to
Compel Arbitration. Appellees argue factual
concessions by House obviated the need for
such a hearing.
¶13 House cites Shaffer v. Jeffrey, 1996 OK 47,
915 P.2d 910, as rejecting the severability doctrine of Prima Paint Corporation v. Flood Conklin
Manufacturing Company, 388 U.S. 395, 404, 87 S.
Ct. 1801 (1967) and as granting her a “clear
right” to an evidentiary hearing on the issue of
fraud in the inducement. Under that doctrine,
fraud regarding the arbitration clause may be
severed and considered separately from the
remainder of a contract. We read Shaffer, which
Vol. 85 — No. 15 — 5/24/2014
addressed an initial construction of § 802(A) of
the Oklahoma Arbitration Act, 15 O.S. 1991 §
801- § 818, in light of subsequently developed
law. In Rogers v. Dell Computer Corporation, 2005
OK 51, ¶ 13 - ¶ 14, 138 P.3d 826, 830, the Oklahoma Supreme Court states:
In considering whether an arbitration provision is binding on the parties, it is severed from the rest of the contract. A.T. Cross
v. Royal Selangor(s) PYE, Ltd., 217 F.Supp.2d
229, 233 (D.R.I. 2002).
The court’s role is to determine whether
there is a valid, enforceable agreement to
arbitrate the dispute. Wilkinson v. Dean Witter Reynolds, Inc., 1997 OK 20, ¶ 9, 933 P.2d
878, 880 (citing Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614,
626 (1985)); Gannon v. Circuit City Stores,
Inc., 262 F.3d 677, 680 (8th Cir. 2001). The
existence of an arbitration agreement is
governed by principles of state law. Wilkinson, 1997 OK 20 at ¶ 9, 933 P.2d at 880.
Because under the FAA this court cannot
examine the validity of the contract as a
whole, Prima Paint,3 388 U.S. at 404, we must
treat the contract as valid when analyzing an
arbitration provision. (Emphasis added.)
In Hai, 2010 OK CIV APP 3, ¶17, 230 P.3d at
919, the Court clearly states that “[u]nder the
FAA, the question of the validity of the arbitration provision must be severed and considered
separately. Prima Paint Corporation v. Flood &
Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct.
1801, [1806], 18 L.Ed.2d 1270 (1967); Rogers,
2005 OK 51, ¶14, 138 P.3d at 830.” The severability doctrine applies.
¶14 House concedes the transaction affects
interstate commerce and the FAA applies. Under
both the express terms of the arbitration clause
in the contract and House’s admission, this dispute falls under the purview of the FAA. House’s
contentions she was fraudulently induced to
make the contract by the fraud all relate to the
truck itself, i.e., fraud as to the contract in toto,
not fraud regarding the arbitration clause. Under
the FAA, “attacks on the validity of the contract,
as distinct from attacks on the validity of the
arbitration clause itself, are to be resolved ‘by the
arbitrator in the first instance, not by a federal or
state court.’ Preston v. Ferrer, 552 U.S. 346, 349
(2008); see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967).” Nitro-Lift Technologies, L.L.C. v. Howard, 568 U.S. __ , 133 S.Ct.
500, 184 L.Ed.2d 328 (2012).
Vol. 85 — No. 15 — 5/24/2014
¶15 Whether the parties entered into a valid
enforceable agreement to arbitrate their claims
presents a question of law reviewed by a de
novo standard. Rogers v. Dell Computer Corporation, 2005 OK 51, 138 P.3d 826. Review of a trial
court’s legal rulings is made without deference
to the lower court. Gladstone v. Bartlesville Independent School District No. 30 (I-30), 2003 OK 30,
¶ 5, 66 P.3d 442, 446. The arbitration provision
states it applies to claims “in contract, tort,
regulatory or otherwise,” “regarding the interpretation, scope, or validity of this clause, or
arbitrability of any issue,” “between you and
us, your/our employees, agents, successors,
assigns, subsidiaries, or affiliates,” and “arising out of or relating to your application for
credit, this contract, or any resulting transaction or relationship, including that with the
dealer, or any such relationship with third parties who do not sign this contract.” The terms
of the arbitration clause cover disputes of the
nature presented in this dispute and House
challenges its applicability only on broad
grounds as to the entire contract. Having considered separately the arbitration clause, we
find it binding. Consequently, we discern no
legal error in the trial court’s order sending the
parties’ dispute to arbitration.
¶16 House also alleges that because the parties’ agreement requires application of Oklahoma law, she is entitled to an evidentiary
hearing under Oklahoma’s Arbitration Act. To
adopt the approach suggested by House would
be to allow a state arbitration act to supersede
and essentially nullify the FAA’s limitations
with respect to judicial review of an underlying contract. The suggested analysis recently
was expressly rejected in Nitro-Lift as in contravention of prior United States Supreme Court
decisions declaring the national policy favoring arbitration and as in contravention of U.S.
Const., art. VI, cl. 2, because the FAA is “the
supreme Law of the Land,” 133 S.Ct. at 503504. In Hai, 2010 OK CIV APP 3, ¶ 17, 230 P.3d
at 919, the Court notes:
The United State Supreme Court when
analyzing the law developed subsequent to
Prima, explicitly declared it had “rejected
the view that state law could bar enforcement of § 2, even in the context of state-law
claims brought in state court.” Buckeye
Check Cashing, Inc. v. Cardegna, 546 U.S. 440,
445, 126 S.Ct. 1204, 1209, 163 L.Ed.2d 1038
(2006). The OUAA may not be applied here
to negate application of the FAA, including
1235
application of substantive law requiring
severance of consideration of the arbitration provision, as opposed to consideration
of the parties’ entire agreement, in the face
of allegations of fraud in the inducement.
¶17 Further, as the Oklahoma Supreme Court
reiterates in Harris v. David Stanley Chevrolet,
Inc., 2012 OK ¶ 5, 273 P.3d at 878, although it
may be a better policy to conduct such an evidentiary hearing “if the existence of an agreement to arbitrate is controverted,” nevertheless,
whether to grant an evidentiary hearing is within the trial court’s discretion and its ruling “will
not be disturbed absent an abuse of discretion.”4
“A court should permit arbitration ‘unless the
court can say with ‘positive assurance’ the dispute is not covered by the arbitration clause.’
City of Muskogee v. Martin, 1990 OK 70, ¶8, 796
P.2d 337, 340.” Harris v. David Stanley Chevrolet,
Inc., 2012 OK 9, ¶ 6, 273 P.3d 877, 879.
¶18 No abuse of discretion is demonstrated
here and the parties’ dispute is within the
scope of the disputes covered by the arbitration
clause. The trial court’s order sending the dispute to arbitration will not be disturbed on
appeal.
¶19 House alleges the trial court erred by
failing to follow proper procedures under district court rules when handling the motion to
compel arbitration and failing to grant her an
evidentiary hearing. Appellees argue the motions seeking arbitration did not fail to comply
with the district court rules5 because no fact
issues needing a verification were at issue and
House effectively admitted the facts she contends required verification. The disputed facts
she argues were “’core’ issues for the trial court’s
determination” under Oklahoma law all concern
fraud as to the contract as a whole and present
issues for the arbitrator under the FAA, i.e., what
she was told about the vehicle, was it represented as new or used, did she rely on representations, were representations true, and how the
contract describes the truck. For the reasons previously stated, the analysis regarding an evidentiary hearing fails on this basis as well.
¶20 In the first proposition of her supplemental appellate brief, House argues the paper
trail for the truck shows it was not new because
it had been sold to and repossessed from
another person. This alleged error speaks solely to the underlying factual dispute and merits
of the arbitration award. House essentially
1236
invites re-adjudication of the facts during
reviewing of the trial court’s order.
¶21 In an arbitration, a party “trades the procedures and opportunity for review of the
courtroom for the simplicity, informality, and
expedition of arbitration.” Mitsubishi Motors
Corporation v. Soler Chrysler-Plymouth, 473 U.S.
614, 628, 105 S.Ct. 3346, 3354 (1985).6 “In reviewing an arbitrator’s decision, the trial court must
give the arbitrator great deference and ‘cannot
review the merits of the award, including any
of the factual or legal findings.’ Fraternal Order
of Police, Lodge 142 v. City of Perkins, 2006 OK
CIV APP 122, ¶ 4, 146 P.3d 829, 830 (citing City
of Yukon v. International Ass’n of Firefighters,
Local 2055, 1990 OK 48, ¶ 8, 792 P.2d 1176,
1179).” City College, Inc. v. Moore Sorrento, LLC,
2010 OK CIV APP 127, ¶ 10, 246 P.3d 726, 730.
The review House requests is beyond the scope
of the applicable “highly deferential” standard
of appellate review under the FAA, a standard
which is “among the narrowest known to the
law.” ARW Exploration Corporation v. Aguirre, 45
F.3d 1455, 1462 (10th Cir.1995). “’Thinly veiled
attempts to obtain appellate review of an arbitrator’s decision’ . . . are not permitted under
the FAA.” Flexible Manufacturing Systems Pty.,
Ltd. v. Super Products Corporation, 86 F.3d 96,
100 (C.A.7 (Wisc.) 1996) (quoting Gingiss International, In. v. Bormet, 58 F.3d 328, 333 (C.A.7
(Ill.) 1995). We will not conduct the fact inquiry
proposed in Proposition I of House’s supplemental brief.
¶22 House argues the arbitration award
should be vacated because it is not the “reasoned award” required under the parties’ contract. She contends the award merely contains
bare conclusions without any supporting legal
authority, the award is in manifest disregard of
applicable law, and, consequently, its rendering exceeds the authority of the arbitrator.
¶23 The FAA imposes a heavy presumption
in favor of confirming an award, and provides
for vacation in narrow circumstances. Wachovia
Securities, LLC v. Vogel, 918 So.2d 1004, 1007
(Fla.App. 2 Dist., Jan 20, 2006); e.g., First Options
of Chicago v. Kaplan, 514 U.S. 938, 942, 115 S.Ct.
1920,1923, 131 L.Ed.2d 985 (1995) (vacatur
should occur only in “very unusual circumstances”); Brabham v. A.G. Edwards & Sons Inc.,
376 F.3d 377, 380 (5th Cir.2004) (vacatur permitted only on narrow grounds); 9 U.S.C. § 10.
¶24 “[A] reasoned award is something short
of findings and conclusions but more than a
Vol. 85 — No. 15 — 5/24/2014
simple result.” Holden v. Deloitte & Touche LLP,
390 F.Supp.2d 752, 780 (N.D.Ill.2005) (internal
citations omitted). Sarofim v. Trust Company of
The West, 440 F.3d 213, 215, n. 1 (C.A.5 (Tex.),
2006). In seven pages containing 27 numbered
paragraphs, the arbitrator recites the history of
the dispute, recounts facts elicited during hearing, describes the parties’ contentions, finds a
case cited by House distinguishable, and
explains the rationale for the conclusions
reached, including that House had not sustained damages. Although the award was
more minimal than House would prefer, it
nonetheless fulfills the terms of the parties’
contract calling for a “reasoned award.”
¶25 House also claims the award is subject to
vacatur due to the arbitrator’s “manifest disregard of the law,” a non-statutory ground recognized by some jurisdictions in addition to the
four grounds stated in the FAA.7 In Advest v.
McCarthy, 914 F.2d 6, 9, n. 5 (1st Cir. 1990), the
federal court explains that the origin of this
ground “derives directly from dicta employed
by the Court in Wilko v. Swan, 346 U.S. 427, 43637, 74 S.Ct. 182, 187-88, 98 L.Ed. 168 (1953),”8
and is judicially created.
¶26 As the federal court explains in Advest,
Inc. v. McCarthy, 914 F.2d 6, 8-9 (1st Cir. 1990),
reversal based on the ground of “manifest disregard of the law” requires a challenger to show
that the award is “(1) unfounded in reason
and fact; (2) based on reasoning so palpably faulty that no judge, or group of judges,
ever could conceivably have made such a
ruling; or (3) mistakenly based on a crucial
assumption that is concededly a non-fact.”
Local 1445, United Food and Commercial
Workers v. Stop & Shop Cos., 776 F.2d 19, 21
(1st Cir.1985); Bettencourt [v. Boston Edison
Co., 560 F.2d 1045, (1st Cir. (Mass.) 1977)],
560 F.2d at 1050.
¶27 The ground “manifest disregard of the
law” is narrowly construed. Prudential-Bache
Sec., Inc. v. Tanner, 72 F.3d 234, 237-38 (1st Cir.
1995). “The hurdle is a high one, especially
since there is nothing talismanic about the
phrase ‘manifest disregard.’” 914 F.2d at 10.
The Courts “do not sit to hear claims of factual
or legal error by an arbitrator as an appellate
court does in reviewing decisions of lower
courts.” United Paperworkers International Union
v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371,
98 L.Ed.2d 286 (1987). In Bowen v. Amoco PipeVol. 85 — No. 15 — 5/24/2014
line Co., 254 F.3d 925, (10th Cir. 2001), the Court
explains:
We have interpreted manifest disregard of
the law to mean “willful inattentiveness to
the governing law.” ARW Exploration Corp.,
45 F.3d at 14639 (internal quotation marks
omitted). Requiring more than error or
misunderstanding of the law, id., a finding
of manifest disregard means the record will
show the arbitrators knew the law and
explicitly disregarded it, Prudential-Bache
Sec., Inc. v. Tanner, 72 F.3d 234, 240 (1st
Cir.1995). (Footnote added.)
Accord, Carte Blanche (Singapore) Pte., Ltd. v.
Carte Blanche Intern., Ltd., (C.A.2 (N.Y.) 1989),
888 F.2d 260 (“manifest disregard of the law”
refers to error which is obvious and capable of
being readily and instantly perceived by the
average person qualified to serve as arbitrator
and implies the arbitrator appreciated the existence of a clearly governing legal principle but
decided to ignore it); Sheet Metal Workers’
Intern. Ass’n, Local 15 AFL-CIO v. Law Fabrication, LLC, 459 F.Supp.2d 1236, (M.D.Fla. 2006),
affirmed, 237 Fed.Appx. 543, 2007 WL 1821022
(manifest disregard of the law requires clear
evidence that arbitrator was conscious of the
law and deliberately ignored it and a showing
that the arbitrator merely misinterpreted, misstated, or misapplied the law is insufficient);
and U.S. ex rel. Watkins v. AIT Worldwide Logistics, Inc., 441 F.Supp.2d 762 (E.D.Va. 2006)
(Party seeking to vacate based on manifest disregard of law is required to show that arbitrators were aware of law, understood it correctly,
found it applicable to case before them, and yet
chose to ignore it).
¶28 House’s arguments premised on statutory definitions of “new” and “used” vehicles
require a determination the statutes apply and
were ignored. The arbitrator recounted Appellees’ arguments the prior transaction had failed
and found inapplicable statutes House contends were ignored. Vacatur is denied premised on the doctrine of manifest disregard of
applicable law.10
CONCLUSION
¶29 The trial court’s order sending the parties’ dispute to arbitration is AFFIRMED.
House’s claimed errors which are premised
upon re-adjudication of the underlying issues
will not be entertained, she has failed to demonstrate entitlement to vacatur of the arbitrator’s award upon other grounds alleged, and
1237
she has not shown the trial court abused its
discretion or erred as to the law. The order confirming the arbitrator’s award is AFFIRMED.
BUETTNER, Acting P.J., and GOREE, J. (sitting
by designation), concur.
1. The arbitration provision states (emphasis in the original):
RIGHTS YOU AND WE AGREE TO GIVE UP
If either you or we choose to arbitrate a Claim, then you and we
agree to waive the following rights;
•RIGHT TO TRIAL, WHETHER BY A JUDGE OR JURY
•RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR
A CLASS MEMBER IN ANY CLASS CLAIM YOU MAY HAVE
AGAINST US WHETHER IN COURT OR IN ARBITRATION
•BROAD RIGHTS TO DISCOVERY AS ARE AVAILABLE IN A
LAWSUIT
•RIGHT TO APPEAL THE DECISION OF AN ARBITRATOR
•OTHER RIGHTS THAT ARE AVAILABLE IN A LAWSUIT
2. At the arbitration hearing, Appellees claimed the prior transaction was not completed because of problems with vehicles tendered by
Texas resident Neal Quigley as trade-ins and a “bounced” down-payment check, which, they argue, resulted in him never legally owning
the truck. The arbitrator notes designation of the truck as “new” was
necessary for House to obtain “new car” financing interest rates so as
to meet her monthly payment goal, and the mileage was disclosed and
acknowledged by House.
3. Prima Paint Corp. v. Flood & Conklin Manufacturing Company, 388
U.S. 395, 404 (1967).
4. House overstates the analysis in Hai by citing it as holding the
trial court must grant her an evidentiary hearing. In Hai, the Court
states, 2010 OK CIV APP 3, ¶ 10, 230 P.3d 914, 918:
Whether the district court should conduct an evidentiary hearing relating to the existence of a valid enforceable arbitration
agreement before referring the controversy to arbitration is a
procedural question left to the discretion of the district court, and
its ruling will not be disturbed on appeal in the absence of clear
abuse of that discretion. Oklahoma Oncology & Hematology P.C. v.
US Oncology, Inc., 2007 OK 12, 160 P.3d 936. An abuse of discretion occurs when the court bases its decision on an erroneous
conclusion of law or when there is no rational basis in the evidence for a ruling. Fent v. Oklahoma Natural Gas Company, 2001
OK 35, 27 P.3d 477. “In order to determine whether there was an
abuse of discretion, a review of the facts and the law is essential.”
Board of Regents of University of Oklahoma v. National Collegiate
Athletic Association, 1977 OK 17, ¶3, 561 P.2d 499, 502.
5. Specifically, House contends a verified statement was required
by Rules for District Courts of Oklahoma, Rule 4(c), which provides:
“Motions raising fact issues shall be verified by a person having
knowledge of the facts, if possible; otherwise, a verified statement by
counsel of what the proof will show will suffice until a hearing or
stipulation can be provided.”
6. See generally Wilbanks Securities, Inc. v. McFarland, 2010 OK CIV
APP 17, ¶ 9, 231 P.3d 714, 719, citing Brown v. Coleman Co., 220 F.3d
1180, 1182 (10th Cir.2000), quoting Gilmer v. Interstate/Johnson Lane
Corporation, 500 U.S. 20, 31, 111 S.Ct. 1647, 1654, 114 L.Ed.2d 26 (1991),
quoting Mitsubishi for this precept.
7. The four statutory grounds for vacating an arbitration award
found at 9 U.S.C. § 10(a) are:
(1) where the award was procured by corruption, fraud, or
undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or
of any other misbehavior by which the rights of any party have
been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award
upon the subject matter submitted was not made.
8. Wilco is overruled on other grounds by Rodríguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484-85, 109 S.Ct. 1917,
1921-22, 104 L.Ed.2d 526 (1989).
9. ARW Exploration Corporation v. Aguirre, 45 F.3d 1455 (10th
Cir.1995).
1238
10. House did not show a right to vacatur on this judicially-created
ground. Consequently, we need not determine if the judicially-created
exception survived in the wake of Hall Street Associates LLC v. Mattel,
Inc., 552 U.S. 576, 128 S.Ct. 1396, 1403, 170 L.Ed.2d 254 (2008), in which
the Supreme Court held the grounds set forth in 9 U.S.C. § 10 are the
exclusive means to vacate an arbitration award.
2014 OK CIV APP 37
TERRY MOORE, individually and as next
friend of JERRIT MOORE, a minor,
Plaintiff/Appellant, vs. ROBERT
BLACKWELL and FARMERS INSURANCE
COMPANY, INC., Defendants/Appellees.
CLEVELAND COUNTY, OKLAHOMA
HONORABLE STEPHEN W. BONNER,
TRIAL JUDGE
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS
David L. Smith, DAVID L. SMITH, ATTORNEY AT LAW, Oklahoma City, Oklahoma, for
Plaintiff/Appellant
Phillip P. Owens, II, CHRIS HARPER, INC.,
Edmond, Oklahoma, for Defendant/Appellee
Robert Blackwell
Paul B. Middleton, DOBBS & MIDDLETON,
Oklahoma City, Oklahoma, for Defendant/
Appellee Farmers Insurance Company, Inc.
JANE P. WISEMAN, JUDGE:
¶1 Plaintiff Terry Moore, individually and as
next friend of Jerrit Moore, a minor, appeals a
judgment entered in Defendants’ favor resulting
from a jury verdict rendered on April 11, 2011, in
favor of Defendant Robert Blackwell. Having
reviewed the record and pertinent law, we
reverse and remand for further proceedings.
FACTS
¶2 According to Plaintiff’s appellate brief, on
September 1, 2007, Jerrit Moore, then a 12 yearold boy, was walking with a friend along an
I-35 service road in Norman, Oklahoma. The
boys were initially walking on the road against
traffic, but because of an approaching hill, they
decided it would be safer to cross “the center
line to walk with the traffic, with the intent of
returning to the other side of the road once they
negotiated the hill.” Because it was dark, only
the moonlight and vehicle headlights illuminated the area in which they were walking. While
driving on the service road, Robert Blackwell
came upon the boys before he saw them,
Vol. 85 — No. 15 — 5/24/2014
slammed on the brakes, and swerved to the left.
Blackwell struck Jerrit Moore injuring him.
PROCEDURAL BACKGROUND
¶3 Plaintiff, Jerrit Moore’s father, filed this
negligence action against Defendants claiming:
“The cause of the crash was the negligence of
Robert Blackwell. As a direct and proximate
cause of Robert Blackwell’s [negligence], the
plaintiffs have and will incur medical treatment and bills, suffered personal injury and
been damaged in an amount in excess of Ten
Thousand Dollars ($10,000).” Plaintiff also
asserted that at the time of the accident, “Defendant Farmers had a policy of uninsured/
underinsured motorist coverage in force and
effect in favor of the Plaintiffs for injuries
received and caused by the negligence of an
uninsured or underinsured motorist.”
¶4 Blackwell filed an answer denying any
negligence on his part and stating:
This Defendant admits that on September 1, 2007, he was traveling on Interstate
35 service road in a legal and lawful manner when without notice or knowledge,
two young men/minors were walking
down the middle of the lane of traffic occupied by this Defendant, of course they were
not wearing any type of reflective clothing,
had no lights, had no warning, for which
said minors, the Plaintiff Jerrit Moore, was
negligent in common law negligence per se
which was the proximate cause and sole
cause of this accident.
¶5 Farmers Insurance Company, Inc.,
answered denying the allegations against
Blackwell, alleging Jerrit Moore was negligent,
and confirming the existence of the uninsured/
underinsured policy described above. Farmers
later moved to bifurcate the claims asserted
against it and asked the trial court to exclude at
trial any mention of Farmers or the existence of
insurance. Farmers agreed not to participate in
the trial and to be bound by the jury’s verdict.
¶6 During trial, Plaintiff called fact witnesses
Defendant Blackwell, Terry Moore, Jerrit
Moore, and Phillip Cornelius, the friend walking with Jerrit Moore at the time of the accident. Defendant Blackwell then called Michael
Thomson, the investigating officer, and Terry
Harrison, an accident reconstructionist. Plaintiff objected to Blackwell’s witnesses testifying
as to fault or causation.
Vol. 85 — No. 15 — 5/24/2014
¶7 At the conclusion of trial, the jury found
in favor of Defendant Blackwell. As a result, the
jury’s verdict in favor of Blackwell extinguished
Plaintiff’s claims against Farmers. The trial court
entered judgment for both Defendants based on
the jury’s verdict and granted Blackwell “reimbursement of costs in the amount of $1,345.22
plus statutory interest and costs.”
¶8 Plaintiff brings this appeal from the judgment in Defendants’ favor entered as a result of
the jury verdict.
STANDARD OF REVIEW
¶9 “Rulings concerning the admission of evidence are measured against the abuse of discretion standard.” Holm-Waddle v. William D.
Hawley, M.D., Inc., 1998 OK 53, ¶ 5, 967 P.2d
1180, 1182. We review a trial court’s ruling on
the admissibility of expert opinions on an
abuse of discretion standard. Belle Isle v. Brady,
2012 OK CIV APP 99, ¶ 24, 288 P.3d 259, 266
(citing Christian v. Gray, 2003 OK 10, ¶ 42, 65
P.3d 591, 608). “An abuse of discretion occurs
when a decision is based on an erroneous conclusion of law or where there is no rational
basis in evidence for the ruling.” Spencer v.
Oklahoma Gas & Elec. Co., 2007 OK 76, ¶ 13, 171
P.3d 890, 895 (emphasis omitted).
¶10 “The test of reversible error in instructions is whether the jury was misled to the
extent of rendering a different verdict than it
would have rendered, if the alleged errors had
not occurred.” Johnson v. Ford Motor Co., 2002
OK 24, ¶ 16, 45 P.3d 86, 92-93.
ANALYSIS
I. Expert Testimony
¶11 Plaintiff argues the trial court abused its
discretion in allowing, over repeated objections, Defendant’s expert witnesses, Michael
Thomson, the investigating officer on the day
of the accident, and Terry Harrison, Defendant’s accident reconstruction expert, to testify
on issues that should have been reserved for
the jury.
¶12 Plaintiff initially filed a motion in limine
on March 29, 2010, and then an amended
motion in limine on January 13, 2011, seeking
to exclude such testimony. The trial court overruled these motions on January 18, 2011. When
the case was subsequently reassigned to another judge, Plaintiff re-urged his motion to the
new judge who overruled the renewed motion
on April 8, 2011. At the beginning of trial on
1239
April 11, 2011, Plaintiff requested and was
granted a continuing objection to Harrison’s
testimony “to every question that is asked and
answered by that expert that is nonscientific.”
On the second day of trial, Plaintiff reurged his
objection to Harrison’s testimony before he
testified. The trial court granted Plaintiff a
“standing objection” to the “limited questions”
of “causation and negligence.”
¶13 Plaintiff on appeal asserts no expert testimony is necessary in this case on these issues
as it is a “simple automobile-pedestrian accident.” Plaintiff contends:
No scientific evidence is required for the
jury to make a determination of whether or
not these individuals, [Blackwell] was negligent in operation of his vehicle, or whether [Jerrit Moore] acted prudently, based
upon his age and experience, or whether
he acted in negligent fashion. Expert testimony was not needed, and did not assist
the trier of fact.
He primarily relies on the Oklahoma Supreme
Court case of Gabus v. Harvey, 1984 OK 4, 678
P.2d 253, to support his argument that expert
witnesses may not offer opinion testimony on
the issues of negligence and the cause of a collision and the allowance of such opinion testimony is reversible error.
¶14 In Gabus, a negligence case also arising
out of an automobile-pedestrian accident, a
party sought to introduce an investigating
police officer’s opinion as to what caused the
accident. The trial court allowed its introduction, and the officer testified that the pedestrian/plaintiff failed to yield the right of way to
the defendant’s moving vehicle. Id. at ¶ 5, 678
P.2d at 254. The plaintiff’s “counsel moved for
a mistrial, asserting that the officer’s opinion
invaded the province of the jury because it
determined the ultimate issue of fault.” Id. at ¶
6, 678 P.2d at 254. The trial court denied the
motion and the trial continued. Id. The jury
found the plaintiff to be 75 percent negligent
and the defendant, 25 percent negligent. Id.
¶15 The Oklahoma Supreme Court reversed
the judgment resulting from the jury verdict
and remanded for a new trial. Id. at ¶ 30, 678
P.2d at 257. The Court based its holding on
provisions of the Oklahoma Evidence Code,
including 12 O.S.1981 § 2704 which stated:
“Testimony in the form of an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be
1240
decided by the trier of fact.” Id. at ¶ 10, 678 P.2d
at 255. The Court reviewed § 2704 in conjunction with § 2702, which provided that a qualified expert witness may testify in the form of
an opinion “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue.”1 Id. at ¶ 13, 678 P.2d at 255. Pursuant to
§ 2702, “The test . . . is usefulness. Will the expert
testimony assist the trier of fact? If not helpful,
then expert conclusions or opinions are inadmissible.” Id. at ¶ 16, 678 P.2d at 255.
¶16 In reviewing the admitted evidence
under these statutory provisions, the Gabus
Court ultimately held the expert’s opinion on
the cause of the collision did not assist the jury
to understand the evidence because the opinion “concerned facts that could be readily
appreciated by any person who drives an automobile or crosses streets” and “[n]o special
skill or knowledge was needed to understand
these facts and draw a conclusion from them.”
Id. at ¶ 18, 678 P.2d at 256. The Court further
held that “where the normal experiences and
qualifications of lay[] jurors permit them to
draw proper conclusions from the facts and
circumstances, expert conclusions or opinions
are inadmissible. The expert conclusion here
was not helpful and should not have been
admitted.” Id.
¶17 The Supreme Court also concluded the
testimony was plainly prejudicial because it
“put the stamp of expertise upon an issue that
the jury was fully competent to decide.” Id. at
¶ 25, 678 P.2d at 257. The Court held that it was
prejudicial error to admit the expert testimony
on the issue of fault: “We find it highly probable that in this case the jury was unduly influenced by the opinion of one whose opinion
was not needed by them to reach an intelligent
conclusion as to the cause of the accident.” Id.
at ¶ 28, 678 P.2d at 257.
¶18 Faced with evidentiary circumstances
almost identical to Gabus, we reach the same
conclusion. Officer Michael Thomson testified
on direct examination by Defendant’s counsel
that as an investigating officer, he tries to determine “what happened at the accident.” He
further testified that although he tries “to
determine who’s most at cause in the accident,” he does not “try to determine fault.”2
During later direct examination, defense counsel asked the trial court to allow Thomson to
testify as to whether he thought Defendant was
at fault. Plaintiff’s counsel objected again citing
Vol. 85 — No. 15 — 5/24/2014
Gabus. The trial court overruled the objection
allowing defense counsel to inquire about
fault.3 Thomson testified as follows:
Q. Officer Thomson, after you completed
your investigation using your background
and experience, did you find any type of,
as you call it “fault,” on [Defendant]?
A. Well, again, as I say, I have always been
trained not to determine fault. As far as
[Defendant] goes, I determined that there
was nothing for me to be able to site [sic]
him for. 4
When questioned further on cross-examination as to fault,5 Thomson testified as follows:
Q. So is it your testimony that [Defendant]
is fault-free?
A. I’m not saying fault on anybody. I’m just
assessing who might have been most at
cause in the accident—
Q. Okay.
A. — and due to the fact that [Jerrit Moore],
from my information, went to the center of
the roadway instead of to the edge of the
roadway, I would lend more credence at
him being more at fault in the accident or
more responsible—
Q. [Jerrit] Moore?
A. Yes, sir. In this accident.6
In his closing argument to the jury, Defendant’s
counsel summarized this testimony by stating,
“In fact, everything you heard from this case is
that [Defendant] was innocent of negligence
from the police officer who has nothing to gain
or lose. . . . He testified [Defendant] did nothing wrong.”
¶19 On defense counsel’s direct examination,
Terry Harrison, Defendant’s accident reconstructionist who was also a police officer for
the City of Oklahoma City, gave the following
opinion on fault and causation:
Q. Did you - based upon your background
and experience and education as well as
your on-the-job experience as well, do you
have an opinion as what the cause of this
accident was?7
A. Yes. Based on all the evidence I have,
based on the testimony of all the people
involved, based on the physical evidence
on the roadway, and my understanding of
Vol. 85 — No. 15 — 5/24/2014
the State statutes and how they are applied
here, I find that the plaintiff was walking in
the middle of the roadway, which he is
required to walk on the side of the roadway facing traffic or on the sidewalk if it’s
provided. And that [Defendant] took
appropriate action and would be taking the
same action I would have taken.
I find no negligence or any fault on [Defendant] that he did anything wrong. He was
within the speed limit. He recognized the
danger and he reacted to that, and he
act[ed] appropriately.8
(Emphasis added.)
¶20 Defendant argues, “There is nothing prohibiting an expert from testifying as to the
ultimate issue to be decided by the jury. This
was an auto-pedestrian accident involving
issues of lighting, visibility, road elevation, and
other matters not within the knowledge of
ordinary jurors.” Both Thomson and Harrison
could and did testify on such matters as “lighting, visibility, road elevation,” and other observations of physical characteristics of the accident scene, physical evidence at the scene, and
results of their investigations that were helpful
to the jury. Plaintiff did not object at trial and
does not on appeal take issue with such testimony.9 Unlike their opinions on “fault” and
“cause,” their testimony on these matters
involved technical or specialized knowledge.
¶21 Pursuant to 12 O.S.2011 § 2702, to be
admissible, the “scientific, technical or other
specialized knowledge” must “assist the trier
of fact to understand the evidence or to determine a fact in issue.” Does the opinion of an
investigating police officer or an accident
reconstructionist as to whose fault caused the
accident help the jury “understand the evidence” or “determine a fact in issue”? Does
such an opinion make “the existence of any
fact . . . more probable or less probable” than it
would be without that opinion? American College of Trial Lawyers, Standards and Procedures
for Determining the Admissibility of Expert Evidence after Daubert, 157 F.R.D. 571, 573-75 (1994).
We suggest that it has the effect, not of advancing the jury’s understanding of the evidence to
any degree or of promoting accurate fact-finding, but of making a verdict of liability or no
liability more probable by telling the jury what
conclusion to draw.10 29 Charles Alan Wright,
Kenneth W. Graham, Jr., Victor James Gold,
1241
Michael H. Graham, Federal Practice and Procedure § 6264 (1st ed. 2013).
¶22 There is clear case law prohibiting expert
opinion testimony on negligence and causation
because it “did not assist the jury” and “was
not needed by them to reach an intelligent conclusion as to the cause of the accident.” Gabus
v. Harvey, 1984 OK 4, ¶¶ 22, 28, 678 P.2d 253,
257. The ultimate opinions of these two witnesses that Blackwell was fault-free and that
Jerrit Moore’s negligence caused the collision
are not opinions requiring special skill or
knowledge, nor do such opinions constitute
technical matters requiring special skill to interpret the evidence and reach a conclusion.11 This
case involves facts comprehensible by anyone
who has walked on a roadway or driven an
automobile at night and encountered pedestrians or other hazards in the roadway. In line with
Gabus, these are situations within the common
knowledge of most jurors who have driven a
motor vehicle. Id. at ¶ 18, 678 P.2d at 256.
¶23 It is well-established in the holding in
Gabus that the objected-to testimony about
fault and causation dealt with matters well
within the jury’s “normal experiences and
qualifications.” Id. Was special knowledge or
expertise, in the form of an opinion on the ultimate issue, of assistance here to understand
whether either party was negligent and, if so,
whether that negligence caused the collision?12
To grasp and evaluate the evidence and draw
well-reasoned conclusions from it did not
require an expert to tell the jury what conclusion to reach.13 As in Gabus, this testimony on
negligence, fault and causation cannot be considered to have assisted the jury.14 The jury had
the benefit of the testimony of the two experts
detailing without objection what their investigations had revealed on numerous subjects —
point of impact, speed of Defendant’s vehicle
both before and at impact, reaction time, stopping distance, the effect of antilock brakes,
lighting conditions — testimony helpful to the
jury in reaching its verdict.15 Plaintiff properly
objected to any expert offering his opinion
finding “no negligence or any fault on [Defendant]” and finding that Jerrit Moore was “more
at fault in the accident.”
¶24 In addition to being unneeded,16 such
testimony was also prejudicial, because it “put
the stamp of expertise upon an issue the jury
was fully competent to decide.” Id. at ¶ 25, 678
P.2d at 257. Thomson investigated the accident
as an officer for the City of Norman police
1242
department, and Harrison was a police officer
for the City of Oklahoma City at the time he
testified, both thus occupying official positions
that carry the undue “’stamp of authenticity’”
found to be objectionable in Gabus. Id. at ¶ 26,
678 P.2d at 257 (quoting Maben v. Lee, 1953 OK
139, ¶ 11, 260 P.2d 1064, 1067).
¶25 The Supreme Court has further stated
that to allow such testimony permits the jury to
substitute an expert witness’s opinion for the
“combined judgment of the jury, encouraging a
contest by experts rather than a trial by
witnesses.”17 Id. at ¶ 25, 678 P.2d at 257. In the
trial court’s gatekeeping capacity, for the reasons elucidated in Gabus, it was reversible error
to allow Thomson and Harrison to state opinions or conclusions on the questions of negligence, fault, or whose conduct did or did not
cause the accident.
II. Impeachment Testimony
¶26 Plaintiff next contends the trial court
“improperly prevented [him] from examining
witnesses and Defendant after giving perjured
testimony.” Plaintiff’s counsel asked Defendant a question during trial regarding a prior
recorded statement he had given. Plaintiff
argues Defendant denied giving a recorded
statement “in complete contradiction to his
deposition testimony.” Plaintiff argues the trial
court should have granted “Plaintiff’s counsel
some leeway in questioning the Defendant on
this issue” as “[p]erjured testimony goes directly to the credibility of the witness.” Plaintiff
asserts the trial court prevented him from
attacking Defendant’s credibility.
¶27 Defendant argues the trial court did not
abuse its discretion in refusing to allow Plaintiff’s counsel to question Defendant about his
deposition testimony about a recorded statement given to his insurance company. Defendant asserts the trial court refused “because
reading the deposition question and answer to
the jury would disclose to the jury the existence of insurance, in violation of 12 O.S. § 2411
and requir[e] a mistrial.” Defendant further
asserts that because no recorded statement
existed and Plaintiff had none at trial with
which to cross-examine Defendant, the trial
court properly precluded Plaintiff from inquiring about it.
¶28 The admission of a prior inconsistent
statement to attack the credibility of a witness
is governed by 12 O.S. §§ 2607 and 2613. Crus-
Vol. 85 — No. 15 — 5/24/2014
sel v. Kirk, 1995 OK 41, ¶ 8, 894 P.2d 1116, 111819. The Crussel Court stated:
answer. On direct examination, Plaintiff’s
counsel asked Defendant the following:
Before allowing evidence of a witness’s
prior inconsistent statements, the nisi prius
court must satisfy itself that the proffered
testimony is sufficiently inharmonious
with the declarant’s in-court testimony and
is relevant to a non-collateral matter. A
proper foundation must be laid before the
extrinsic impeachment evidence may be
admitted.
Q. Had you been driving slower, do you
believe this incident would have happened?
Id. at ¶ 8, 894 P.2d at 1119 (footnotes omitted).
¶29 Based on this criterion, Defendant argues
Plaintiff failed to lay any foundation because
no such statement existed. Instead, Plaintiff
intended to impeach Defendant with his prior
inconsistent testimony about whether he had
actually given a prior statement instead of
impeaching him with the substance of the
“non-existent recorded statement.” Defendant
argues that by doing so, Plaintiff “would have
created a mistrial by informing the jury of the
existence of insurance. Further whether [Defendant] gave a recorded statement to his insurance company or not was wholly collateral to
the issues of the case.”
¶30 In response to Plaintiff’s counsel’s request
during trial to question Defendant about the
recorded statement, the trial court stated:
“Counsel, I read that deposition. He gave a
report. Now, that’s what he said in the deposition and that was to the insurance company.
No, sir. You know, you can’t get it in directly
when I would have to declare a mistrial if
that’s what it comes down to.” After a review
of the record, we conclude the trial court did
not abuse its discretion by excluding this evidence. Plaintiff sought to impeach Defendant’s
trial testimony denying any previous recorded
statement with his deposition testimony admitting giving a statement to his insurance company. This cannot be said to be relevant to a
non-collateral matter. Id.
¶31 We find the same to be true as to Plaintiff’s contention that the trial court improperly
refused to allow him “to ask Defendant a causation question — if you had driven slower,
this accident would not have happened. This is
the ISSUE of the case and his answer would
clearly weigh on his credibility!!!” (Emphasis
omitted.) A review of Defendant’s trial testimony reveals Plaintiff did in fact ask Defendant
this question and Defendant provided an
Vol. 85 — No. 15 — 5/24/2014
A. I don’t know if slower — how much
slower? I mean, five miles an hour slower?
No. I think it would still have occurred, the
same thing.
(Emphasis added.) On redirect, Plaintiff’s
counsel asked the same question: “At the end
of the day, had you taken precautions and
driven slower, would this crash have happened?” Before Defendant could respond, the
trial court sustained defense counsel’s objection that the question was outside his recrossexamination of the witness. We find no abuse
of discretion in this ruling and Defendant had
previously answered it on direct examination.
III. Jury Instructions
¶32 Plaintiff asserts Defendant failed to meet
his burden of proof to show that Jerrit Moore
“was negligent resulting in the trial court failing to properly instruct the jury.” Plaintiff
argues the trial court improperly instructed the
jury based on Thomson’s and Harrison’s testimony regarding Jerrit Moore’s negligence.
Plaintiff argues “Harrison improperly attempted to establish the knowledge and education of
his eight-year-old grandson, the grandson of a
police officer, as a ‘standard’ to be applied in
this case” when the “evidence to overcome the
presumption [Moore] was not negligent must
be determined based on his particular facts and
circumstances, education and experiences, not
by what some 8 year old grandson of an expert
witness was taught.” Plaintiff states, “Had the
Trial Court appropriately excluded the testimony of Thomson and Harrison, the Plaintiff’s
modified jury instruction, OUJI 9.4 [Child’s
Capacity for Negligence] would have been
given as there was no other evidence overcoming the presumption [Moore] was not negligent. This would have resulted in a verdict for
the Plaintiffs.”
¶33 Because we conclude the admission of
opinion testimony by Thomson and Harrison
is reversible error requiring a new trial — at
which neither of these two witnesses may give
opinion testimony as to the negligence or fault
of any party, including Jerrit Moore, or as to
causation of the collision — we do not further
address this issue.
1243
CONCLUSION
¶34 Because the conclusions of expert witnesses admitted into evidence, contrary to the
strictures of Gabus, on the issues of whether
either party was negligent and to what extent
that negligence, if any, caused the collision,
were not needed or helpful to the jury and were
plainly prejudicial, we reverse and remand for a
new trial consistent with the views expressed in
this Opinion. Further, we decline to address any
issues raised in the amended petition in error
that were omitted from the appellate briefs.
Oklahoma Supreme Court Rule 1.11(k)(1), 12
O.S.2011, ch. 15, app. 1 (“Issues raised in the
Petition in Error but omitted from the brief may
be deemed waived.”).
¶35 REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
BARNES, V.C.J., concurs, and FISCHER, P.J.,
concurs in part and dissents in part.
1. Although additions were made to this provision in 2009, those
additions do not change the fact that the “scientific, technical or other
specialized knowledge” must still “assist the trier of fact to understand
the evidence or to determine a fact in issue.”
2. We conclude that Thomson cannot circumvent the well-understood holding in Gabus by consistently denying doing exactly what he
is in fact doing. Despite Thomson’s protestations, we see no distinction, for testimony purposes in the jury’s eyes, between “at cause” and
“at fault.” If “at cause” refers to any party receiving a citation, Officer
Thomson may not testify to this any more than he may testify as to
which party is liable, i.e., “at fault,” for the collision. We disagree with
the dissent that Thomson “did not answer” the “fault” question and
further disagree that a reasonable juror would interpret Thomson’s use
of the word “fault” as a “misstatement which [he] immediately corrected with the language ‘or more responsible.’”
3. Experience tells us that when “fault” questioning is allowed,
“citation” testimony will not be far behind. And, defense counsel told
the jury in closing argument, “[The police officer] says that [Defendant] violated no laws.”
4. We disagree with the dissent’s conclusion that it is unlikely that
the jury was “unduly influenced” by Thomson’s opinion that there
was nothing to cite Defendant for and that allowing this evidence was
not a clear abuse of discretion. The dissent does note that this “citation” testimony is objectionable because it states a legal conclusion. We
believe the same characterization could be said to apply to “fault” and
“negligence” testimony.
5. Once Defendant’s counsel on direct examination breached the
Gabus prohibition over Plaintiff’s repeated objections, Plaintiff’s counsel’s cross-examination on Thomson’s “fault” testimony cannot, in our
view, constitute “invited error.” One would be hard-pressed to know
how much more to object to preserve the error, and once the cat was
out of the bag, Plaintiff could not be expected to ignore the substance
of Thomson’s “fault” testimony. In light of the trial court’s continued
allowance of such testimony over Plaintiff’s objections, we cannot
characterize Plaintiff’s counsel as “solely responsible for the error,” as
the dissent does. In light of the trial court’s blanket allowance of
“expert” testimony on fault, negligence, and who caused the collision,
we see no basis, as the dissent does, for requiring Moore to file a
motion for directed verdict or for new trial on the citation testimony in
order to preserve the error on appeal.
6. Officer Thomson’s testimony on these issues should not have
been allowed after he testified on direct examination, “I don’t try to
determine fault. That’s not my job as a police officer.” Tr., p. 127. And
when asked on direct whether he found any “fault” on Defendant,
Thomson testified, “I have always been trained not to determine
fault.” Tr., p. 138. This would seem to indicate that this sort of determination is not within his training and expertise. After an overnight
recess, before Defendant called his accident reconstructionist to the
1244
stand, Plaintiff again objected to any testimony by Harrison as to fault
or causation and further argued it would be cumulative to Thomson’s
fault testimony the day before. The trial court remembered that Thomson stated he could not determine fault for either one of the parties, but
the court believed incorrectly that Thomson had not rendered an opinion as to fault. Tr., p. 156.
7. The dissent finds nothing improper about asking “What caused
this accident?” We view this, and believe most jurors would view this,
as the equivalent of asking “Who caused this accident?,” i.e., who was
negligent in causing this collision? Harrison apparently understood it
this way when he answered the question by saying he found “no negligence or any fault on [Defendant] that he did anything wrong.”
8. Although Plaintiff objected in his amended motion in limine to
Harrison’s testimony on more than twenty subjects, Plaintiff did not
preserve his objection on all these points at the time of trial. Before
Harrison testified, Plaintiff asked for, and was granted, a continuing
objection to Harrison giving expert opinion testimony on only two
subjects, “causation and negligence.” Tr., pp. 157-58. Plaintiff did not
claim error on these twenty or so subjects, or brief them in his appellate
briefs where he specifically argued trial court error in allowing Thomson and Harrison to testify “as to causation and negligence.” Moore’s
brief in chief, pp. 23-24; Moore’s reply brief, pp. 10-11. To be clear, we
do not find improper Harrison’s testimony about where the point of
impact was, or the speed of Defendant’s vehicle, or what the physical
evidence showed about Defendant’s braking or attempts to take evasive action. In addition, Plaintiff states in his appellate brief that he
stipulated Defendant was not speeding. But, to allow an expert to testify further that Jerrit Moore’s improper conduct caused the collision,
and that Defendant was not negligent, is error.
9. The dissent discusses the testimony of both Thomson and Harrison on these matters, such as swerve and skid marks, point of impact,
and conditions at the time of the accident. As we believe the Opinion
makes clear, this testimony is not prohibited — nor was it objected to,
complained of on appeal, or the basis for our reversal of this judgment.
But we do not believe that such admissible testimony constitutes a
license for an expert to then cross the Gabus threshold and offer his
legal conclusion on an issue that, without the expert’s opinion, “the
jury was fully competent to decide.” Gabus v. Harvey, 1984 OK 4, ¶ 25,
678 P.2d 253, 257.
10. We are persuaded that expert opinions should not be admitted
that “’merely tell the jury what result to reach.’” Hooks v. State, 1993 OK
CR 41, ¶ 13, 862 P.2d 1273, 1278, cert. denied, 511 U.S. 1100, 114 S. Ct.
1870 (quoting Moore v. State, 1990 OK CR 5, ¶ 49, 788 P.2d 387, 399).
11. The question to be answered here, pursuant to the Evidence
Code, is not whether these opinions go to the “ultimate issue” before
the jury, which they may, if admissible, but whether such opinions
constitute “scientific, technical or other specialized knowledge” that will
assist the jury. 12 O.S.2011 § 2702 (emphasis added). We do not conclude that such testimony can never be admissible in a vehicular negligence case, but it is not admissible in this one.
12. We think such questions very clearly tell jurors what conclusion
to reach about a party’s conduct.
13. “[E]xpert testimony fails to assist if unfair prejudice outweighs
probative value . . . .” 29 Charles Alan Wright, Kenneth W. Graham, Jr.,
Victor James Gold, Michael H. Graham, Federal Practice and Procedure §
6264 (1st ed. 2013).
14. To the extent the dissent argues that “fault” and “causation”
testimony should be allowed as part of “the entirety of the evidence,”
this in our estimation renders Gabus meaningless. Although the dissent
does not find such testimony to be sufficiently “prejudicial,” Gabus
clearly does as discussed below.
15. The dissent finds no distinction between this case and Covel v.
Rodriguez, 2012 OK 5, 272 P.3d 705. The primary holding in Covel on the
admissibility of expert testimony turned on whether the objecting
party challenged the testimony by a timely objection. The Supreme
Court said, “This Court has held that a party cannot after introduction
of evidence without objection, have it stricken on grounds that it is incompetent.” Id. at ¶ 8, 272 P.3d at 709 (emphasis added). The Court would
not condone allowing a party to object to expert witness testimony
after it was admitted without objection: “By failing to object, the error
is waived on appeal . . . .” Id. at ¶ 9, 272 P.3d at 710. One cannot allow
an expert’s testimony to be admitted and then try to discredit that
testimony after all the evidence is in. Id. There are clear distinctions
between this case and Covel.
16. As the Supreme Court concluded in Gabus, “This is not a case
where the jury needed the opinion of an expert about fault.” Gabus v.
Harvey, 1984 OK 4, ¶ 25, 678 P.2d at 253, 257. As to characterizing either
Thomson’s or Harrison’s testimony on whose fault caused the collision
as permissibly “suggesting an inference,” as the dissent does, we note
the Evidence Subcommittee’s Note to Section 2702: “Since much of the
criticism of expert testimony has centered upon the hypothetical ques-
Vol. 85 — No. 15 — 5/24/2014
tion, it seems wise to recognize that opinions are not indispensable and
to encourage the use of expert testimony in non-opinion form when
counsel believes the trier can itself draw the requisite inference.” Okla.
Stat. tit. 12, § 2702 (West 2009).
17. To follow the dissent’s reasoning in allowing expert opinions
on fault and causation would in our view, by endorsing a “contest of
experts,” unnecessarily drive up the cost of litigating cases when these
issues, according to our Supreme Court, are within a jury’s “normal
experiences and qualifications.”
FISCHER, P.J., concurring in part and dissenting in part:
¶1 The central issue in this case is the scope
of admissible testimony from expert witnesses.
The Majority relies on Gabus v. Harvey, 1984 OK
4, 678 P.2d 253, and that Court’s interpretation
of section 2702 of the Evidence Code to conclude that it was reversible error to allow Terry
Harrison and Michael Thomson “to state opinions or conclusions on the questions of negligence, fault, or whose conduct did or did not
cause the accident.” The Majority also concludes, in reliance on Gabus, that this testimony
was prejudicial because Thomson and Harrison were police officers and that a new trial is
required. Although I agree with the Majority
that the district court failed to follow Gabus in
determining the admissibility of Harrison’s
and Thomson’s expert opinion testimony, I
respectfully dissent because I believe Gabus has
been abrogated and is no longer the law in
Oklahoma.1
I. The Scope of Admissible Expert Opinion
Testimony
¶2 Title 12 O.S.2011 § 2702 is the controlling
statute on the central evidentiary issue and
provides:
If scientific, technical or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a
fact in issue, a witness qualified as an
expert by knowledge, skill, experience,
training or education may testify in the
form of an opinion or otherwise. . . .
This statute is “identical in substance” to Federal Rule of Civil Procedure 702 and, therefore,
“federal court decisions may be examined for
persuasive value.” Christian v. Gray, 2003 OK
10, ¶ 16, 65 P.3d 591, 596 (adopting the federal
standard announced in Daubert v. Merrell Dow
Pharm., 509 U.S. 579, 113 S. Ct. 2786 (1993), and
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
119 S. Ct. 1167 (1999), for determining the
admissibility of expert witness testimony). The
federal courts have determined that the statute
establishes a two-pronged test for determining
the admissibility of expert witness testimony:
Vol. 85 — No. 15 — 5/24/2014
“whether the expert is proposing to testify to
(1) scientific knowledge that (2) will assist the
trier of fact to understand or determine a fact in
issue.” Daubert, 509 U.S. at 592, 113 S. Ct. at
2796. The first prong is not an issue in this case
with respect to either Harrison or Thomson.
Both witnesses were qualified as expert witnesses by their “knowledge, skill, training
[and] education” without objection from
Moore. It is the Majority’s application of the
second prong of the section 2702 test with
which I disagree.
A. The Daubert Test
¶3 When the federal counterpart to section
2702 was adopted, there was some uncertainty
as to what the second prong required.
The courts disagree over the precise meaning of Rule 702’s assist requirement. Expert
testimony was admissible under prerules
common law only where the subject of that
testimony was beyond the experience or
knowledge of ordinarily lay people and
would provide “appreciable help” to the
trier of fact. The “assist” requirement of
Rule 702 seems less demanding but the
provision’s language is ambiguous. Some
courts restate the test by asking whether
expert testimony would be “helpful,” but
this adds no clarity. Many modern courts
interpret the “assist” requirement of Rule
702 as if it restates the common law. For
example, some courts take the position that
expert testimony does not “assist” if the
jury can use its common sense to comprehend the evidence at some reasonable level.
Other courts believe that Rule 702 adheres
to the common-law principle that expert
testimony must be of “appreciable help.”
29 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 6264 (1st ed.
1980).
¶4 Gabus focuses on the second prong of section 2702 and adopts the “prerules common
law approach.”
The testimony as to causation introduced
here did not assist the jury. It concerned
facts that could be readily appreciated by
any person who drives an automobile or
crosses streets. No special skill or knowledge was needed to understand these facts
and draw a conclusion from them. In such
a case as this, where the normal experiences and qualifications of laymen jurors
1245
permit them to draw proper conclusions
from the facts and circumstances, expert
conclusions or opinions are inadmissible.
Gabus, 1984 OK 4, ¶ 18, 678 P.2d at 256. The
Majority follows this same approach concluding that Harrison’s and Thomson’s expert testimony did not assist the jury because this case
“involves facts comprehensible by anyone who
has walked on a roadway or driven an automobile at night and encountered pedestrians or
other hazards in the roadway.”
¶5 Gabus was decided six years after the
enactment of section 2702 by a seven-member
Court with three members dissenting. The
Gabus Majority recognized that the new statute
“expand[s] slightly the pre-Code standard
which admitted expert testimony only where
the trier of fact was otherwise unable to understand the issues.” Id. ¶ 14, 678 P.2d at 255.
Nonetheless, the Court found the investigating
officer’s opinion that the plaintiff failed to
yield the right-of-way was inadmissible. As
Gabus articulates the second prong: “The test
under § 2702 is usefulness.” Id. ¶ 16, 678 P.2d at
255. “[W]here the normal experiences and
qualifications of laymen jurors permit them to
draw proper conclusions from the facts and
circumstances, expert conclusions or opinions
are inadmissible.” Id. ¶ 18, 678 P.2d at 255. The
“conclusion of the officer . . . was not useful
since the jury was just as capable of drawing a
proper conclusion from those facts as was the
officer.” Id. ¶ 22, 678 P.2d at 257.
¶6 The usefulness test announced in Gabus is
determined by the common law focus on “the
normal experiences and qualifications of laymen jurors,” id. ¶ 18, 678 P.2d at 256, and
whether the expert’s testimony is “beyond the
experience or knowledge of ordinary lay people.” 29 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 6264 (1st
ed. 1980). In my view, that approach was rejected in Daubert in favor of the relevance test.
Standards and Procedures for Determining the
Admissibility of Expert Evidence after Daubert:
The [Daubert] Court noted that the second
prong of its test — that the evidence assist
the trier of fact — is related to the concept
of “relevancy” set forth in Federal Rules of
Evidence 401 and 402. Rule 401 defines
relevant evidence as that evidence which
has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the
evidence.” The Court in effect held that
evidence meeting the foregoing definition
would necessarily “assist the trier of fact”
and thereby satisfy that prong of Rule 702.
157 F.R.D. 571, 574-75 (1994). Consequently,
Daubert is among the courts that:
[I]mplicitly reject the notion that Rule 702
merely preserves the common law. These
courts assume that even where the jury can
understand the evidence at some level,
expert testimony satisfies the “assist”
requirement if it advances the jury’s understanding to any degree. The drafters seemed
to adopt the latter interpretation.
29 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 6264 (1st ed.
1980).
¶7 The Daubert articulation of the second
prong is also consistent with the Advisory
Committee Notes to Rule 702:
Most of the literature assumes that experts
testify only in the form of opinions. The
assumption is logically unfounded. The
rule accordingly recognizes that an expert
on the stand may give a dissertation or
exposition of scientific or other principles
relevant to the case, leaving the trier of fact
to apply them to the facts. . . . The use of
opinions is not abolished by the rule, however. It will continue to be permissible for
the experts to take the further step of suggesting the inference which should be
drawn from applying the specialized
knowledge to the facts.
Rule 702 further requires that the evidence
or testimony “assist the trier of fact to
understand the evidence or to determine a
fact in issue.” This condition goes primarily
to relevance. “Expert testimony which does
not relate to any issue in the case is not
relevant and, ergo, non-helpful.” 3 Weinstein & Berger ¶ 702[02], p. 702-18.
Fed. R. Evid. 702. The Oklahoma Evidence
Subcommittee’s Note to Okla. Stat. tit. 12, §
2702 (West 2009) is identical and further states
that section 2702 “reflects Oklahoma law.”
Daubert, 509 U.S. at 591, 113 S. Ct. at 2795. As
explained in American College of Trial Lawyers,
¶8 Almost twenty years after Gabus was
decided, Oklahoma adopted the Daubert rule
1246
Vol. 85 — No. 15 — 5/24/2014
in Christian v. Gray: “Oklahoma courts should
apply Daubert and Kumho . . . when determining the admissibility of an expert’s opinion.”
Christian, 2003 OK 10, ¶ 53, 65 P.3d at 611. In
doing so, Christian specifically adopted the
Daubert articulation of the second prong test:
“The evidence must also ‘assist the trier of fact
to understand the evidence or to determine a
fact in issue.’ This requirement ‘goes primarily
to relevance.’” Id. ¶ 9, 65 P.3d at 597 (citing
Daubert, 509 U.S. at 591). Therefore, after Christian was decided, the common law test for
usefulness described in Gabus was abrogated
in favor of the relevance test, in my view.
and Harrison as well as the experts in Covel
testified based on extensive physical evidence
independent of the statements of the parties
about what occurred. However, that distinction is not determinative. “In Oklahoma a physician treating a patient may use a medical
history provided by the patient when making
an opinion on causation of the patient’s injury.”
Christian, 2003 OK 10, ¶ 29, 65 P.3d at 605).
Nothing in the language of section 2702 prevents an expert in any other kind of case from
“making an opinion on causation,” whether
that opinion is based solely on statements of
the parties or also on physical evidence.
B. Application of the Relevance Prong of the
Daubert Test in Covel
¶12 Second, the Majority distinguishes Covel
based on its conclusion that the “primary holding in Covel on the admissibility of expert testimony turned on whether the objecting party
challenged the testimony by a timely objection.” The Majority supports this conclusion by
quoting a portion of paragraph 9 of the Covel
Opinion: “’By failing to object, the error is
waived on appeal . . . .’” (Majority Opinion,
n.15). Although the lack of objection is a difference between this case and Covel, the holding
in Covel is not solely dependent on, or limited
to that fact, in my view.
¶9 Not only has the Oklahoma Supreme
Court adopted the Daubert relevance test for
determining the admissibility of expert witness
testimony, but also it has applied that test in
Covel v. Rodriguez, 2012 OK 5, 272 P.3d 705, the
Court’s most recent treatment of expert witness testimony in automobile accident cases.
Covel involved a tort claim on behalf of the
driver of a vehicle who died after colliding
with a bus. The Court found no fundamental
error in admitting opinion testimony from the
investigating officer that the brakes on the bus
were not working properly because there was
only one skid mark and there was no antilock
braking system.
¶10 The Court also found no error in permitting the defendants’ expert to testify that the
bus could not have avoided the collision
because within the time, speed and distance
facts of the case the driver could not have
reacted any faster than he did, and the bus
could not have slowed any faster than it did.
The Majority accurately notes the procedural
difference between Covel and this case based
on the lack of objection during trial to the
expert testimony in Covel and the repeated
objections to that testimony in this case. However, I cannot read Covel as narrowly as the
Majority and therefore conclude that the procedural difference does not distinguish Covel
from this case.
¶11 First, the fact that Gabus is neither cited
nor discussed in Covel is, in my view, significant. The relevant facts in Gabus are different,
but only to the extent that the police officer in
Gabus testified without the benefit of any physical evidence and based his opinion solely on
the statements of the plaintiff. Both Thomson
Vol. 85 — No. 15 — 5/24/2014
¶13 I conclude that the Covel Court also
reached the fundamental error issue based on
the portion of the Covel quotation omitted by
the Majority: “By failing to object, the error is
waived on appeal, in the absence of fundamental
error.” (emphasis added). Covel, 2012 OK 5, ¶ 9,
272 P.3d at 710. In addition, I reach this conclusion because in the next paragraph, the Covel
Court defines “fundamental error,” analyzes
the testimony of Dr. Strauss, the plaintiff’s
expert, pursuant to that definition and concludes: “The admission of Dr. Strauss’ opinions
on causation, where defendants failed to object
to those opinions, did not . . . constitute[] fundamental error.” Id. ¶ 10, 272 P.3d at 710.
¶14 In doing so, the Covel Court followed
long established Oklahoma law. “[E]rrors in
admission or rejection of evidence which
[result] in miscarriage of justice or constitute
substantial violation of some constitutional or
statutory right require reversal of a cause by
this Court.” Davon Drilling Co. v. Ginder, 1970
OK 51, ¶ 16, 467 P.2d 470, 474. “Nothing in [section 2104(A)(1) requiring a timely objection to
preserve error in rulings on evidence] precludes taking notice of plain errors affecting
substantial rights although they were not
brought to the attention of the court.” 12 O.S.
1247
2011 § 2104(D). “Oklahoma courts are committed in civil cases to protecting litigants from the
commission of fundamental error in the trial
cases.” Oklahoma Evidence Subcommittee’s
Note to Section 2104, Okla. Stat. tit. 12, § 2104
(West 2009). The Majority finds such fundamental error in the Gabus rule, the Covel Court
did not. “We agree with the Court of Civil
Appeals that there was no fundamental error.”
Covel, 2012 OK 5, ¶ 10, 272 P.3d at 710.
¶15 Third, the Covel Court not only affirmed
the district court judgment despite the admission of the challenged expert testimony, but
also discussed the plaintiff’s evidentiary obligation in that case.
The plaintiffs had the burden of proving
that defendants’ brakes malfunctioned and
that the malfunction was more probably
than not the cause of Mr. Covel’s death.
Id. ¶ 17, 272 P.3d at 712. To discharge that burden, the Covel Court recognized that the plaintiffs were entitled to rely on Dr. Strauss’ “opinions on causation.” Id. ¶ 10, 272 P.3d at 710.
By being qualified as an expert in accident
reconstruction, biomechanics and human
factors, Dr. Strauss was qualified to give
opinions and conclusions based on his
training and experience in those fields.
Id. ¶ 15, 272 P.3d at 712. Dr. Strauss testified
that in his opinion the cause of the plaintiff’s
death was the “head-on” nature of the impact
caused by the failure of the bus to stop sooner
because of its defective brakes. “The admission
of Dr. Strauss’ opinions on causation . . . did
not seriously affect the fairness or integrity of
the trial. Dr. Strauss’ testimony was not so
manifestly unreasonable that its admission
constituted fundamental error.” Id. ¶ 10, 272
P.3d at 710.
¶16 As I read Covel, the Court distinguishes
between testimony as to the cause of an accident and testimony about which party was
negligent. A tort claim based on alleged negligence is determined by proof that the plaintiff’s interest was entitled to protection from
the defendant’s conduct, that the defendant
invaded that interest pursuant to conduct that
failed to conform to the applicable standard of
care, and that the resulting damage was a foreseeable consequence of the defendant’s conduct. Brewer v. Murphy, 2012 OK CIV APP 109,
292 P.3d 41 (approved for publication by the
Supreme Court). The Covel Court found that
1248
although the plaintiffs had to prove that the
malfunctioning brakes caused the accident:
“Whether defendants were negligent and, if
negligent, whether the consequences could
reasonably have been foreseen or anticipated,
were questions for the jury to decide.” Covel,
2012 OK 5, ¶ 17, 272 P.3d at 712. The Majority
and I agree that testimony by an expert witness
that one party was or was not negligent is not
permitted. I dissent from the Majority’s view
that an expert is not permitted to render an
opinion about the cause of an accident.
¶17 In my view, Gabus and Covel cannot be
reconciled with respect to the admissibility of
expert witness opinion testimony on causation.
I conclude that Christian abrogated the Gabus
“usefulness test” for determining the admissibility of expert witness opinion testimony pursuant to the second prong of section 2702.
Consequently, after Christian, as evidenced by
Covel, expert witness testimony concerning
causation is admissible if it is relevant, absent
some supervening constitutional provision or
section of the Evidence Code, even if that testimony is well within “the normal qualifications
and experience of laymen jurors.” Gabus, 1984
OK 4, ¶ 18, 678 P.2d at 256.
II. Improper Testimony
A. Harrison’s Negligence Testimony
¶18 Like the Majority, I find the following
testimony was improper, but only as to the first
sentence of the last paragraph:
Q. Did you — based upon your background and experience and education as
well as your on-the-job experience as well,
do you have an opinion as what the cause
of this accident was?
A. Yes. Based on all the evidence I have,
based on the testimony of all the people
involved, based on the physical evidence
on the roadway, and my understanding of
the State statutes and how they are applied
here, I find that the plaintiff was walking in
the middle of the roadway, which he is
required to walk on the side of the roadway facing traffic or on the sidewalk if it’s
provided. And that [Defendant] took
appropriate action and would be taking the
same action I would have taken.
I find no negligence or any fault on
[Defendant] that he did anything wrong.
He was within the speed limit. He recog-
Vol. 85 — No. 15 — 5/24/2014
nized the danger and he reacted to that,
and he act[ed] appropriately.
For the reasons previously stated, I find counsel’s question as to the cause of the accident
entirely proper pursuant to the Daubert/Christian relevance test. However, when Harrison
volunteered that he found “no negligence” on
the part of Blackwell, Moore’s continuing objection to any testimony about negligence should
have been sustained.
¶19 In my view, that conclusion is not compelled by either rationale relied on in Gabus:
“[T]he officer’s opinion as to appellant’s failure
to yield right of way should have been excluded not just because it bore on an ultimate issue,
but because the conclusion of the officer did
not assist the jury in its deliberations.” Gabus,
1984 OK 4, ¶ 22, 678 P.2d at 256-57. First, the
exclusion of evidence because it “bore on an
ultimate issue” is, at best, problematic. “Testimony in the form of an opinion or inference
otherwise admissible is not objectionable
because it embraces an ultimate issue to be
decided by the trier of fact.” 12 O.S.2011 § 2704.
This Court correctly stated the rule in Madden
v. Board of County Comm’rs of Hughes County,
No. 97,832, slip op. at 11, (Okla. Civ. App. Feb.
24, 2004) (citing Gabus, 1984 OK 4, ¶¶ 14-16,
678 P.2d at 255): “An expert may testify on the
ultimate issue . . . .”
¶20 Second, testimony that one party was
negligent would certainly assist the jury in
determining which of the parties was negligent. However, Harrison’s statement that
Blackwell was not negligent is objectionable
because that was the ultimate issue in this
case.2 As the Gabus court noted, Section 2702
“expanded” the scope of admissible opinion
testimony regarding the ultimate issue in a
case. Nonetheless:
[A]bolition of the ultimate issue rule does
not lower the bars so as to admit all opinions. Under Rules [2701] and [2702], opinions must be helpful to the trier of fact,
and Rule [2403] provides for exclusion of
evidence which wastes time. These provisions afford ample assurances against the
admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of
an earlier day.
Oklahoma Evidence Subcommittee’s Note to
Section 2704, Okla. Stat. tit. 12, § 2704 (West
2009). In this case, Harrison’s voluntary stateVol. 85 — No. 15 — 5/24/2014
ment that Blackwell was not negligent merely
told the jury what result to reach. The Majority
and I agree: “No witness should be permitted
to give his opinion directly . . . that a person
was negligent or not negligent.” General Supply
Co. v. Virgil D. Goucher and Bud Stevens d/b/a Bar
S Trucking, No. 95,415, slip op. at 6, (Okla. Civ.
App. May 28, 2002) (emphasis in original) (citing Gabus, ¶ 16, n.2, 678 P.2d at 255, quoting
Grismore v. Consol. Prods., 5 N.W.2d 646, 663
(Iowa 1942) with approval).
B. Thomson’s Citation Testimony
¶21 Thomson was the Norman police officer
who investigated the accident. Although Thomson was listed as a fact witness by both parties
in the pretrial conference order, he was called
by Blackwell. During direct examination,
Thomson testified regarding his education,
training and experience in automobile accident
investigation as a member of Norman’s Collision Investigation and Response Team. He
described what he did to investigate the accident involving Moore and Blackwell. He identified photographs of the accident scene and a
diagram he prepared from which he described
the accident scene for the jury, the conditions
on the night of the accident, the length of skid
marks, and the location of Moore at the point
of impact. He relayed what he had learned
from witnesses about how the accident
occurred. He testified that the posted maximum speed on the road was fifty miles per
hour and that there was a City ordinance in
effect requiring pedestrians to walk facing
oncoming traffic. He then testified that, based
on the information he had obtained, the boys
were not in the location required by the ordinance at the time of the accident. All of this
testimony was provided without objection
from Moore’s counsel, is not challenged in this
appeal and was properly admitted.
¶22 At the conclusion of Thomson’s direct
examination, counsel for Blackwell asked to
approach the bench, where the following
exchange took place:
MR. HARPER: Judge, I do believe he qualifies to the jury as to opinions as an expert
due to his education and training. And I
would like to ask him: Does he find any
fault in Mr. Blackwell’s driving? I will ask
that only with your permission. He is a
police officer and not designated as an
expert, but I do believe under his testimony,
he does qualify to answer that question.
1249
MR. SMITH: My objection will be back to
Gabus v. Harvey that says that an investigating officer or accident reconstructionist cannot give an opinion as to fault or argue facts,
which suggest fault. I know your previous
ruling, but I’m renewing that objection.
THE COURT: I understand. You may ask
the question, sir.
Although Thomson was originally tendered as
a fact witness, he was offered as an expert at
this point without objection from Moore. From
Thomson’s testimony, it appears that he had
sufficient additional training and experience in
accident investigation to be qualified as an
expert in that field pursuant to the requirements set out in Christian, 2003 OK 10, 65 P.3d
591, satisfying the first prong of section 2702.
Consequently, like Harrison’s expert testimony,
the admissibility of Thomson’s testimony as an
expert is determined by the second prong of
section 2702.
¶23 However, and unlike Harrison who was
asked his opinion about the cause of the accident, the question put to Thomson solicited his
opinion about who was at fault. I understand
the Majority’s concern that a jury might equate
“fault” and “negligence.” However, the jury in
this case was properly instructed regarding the
law of negligence and the weight to be given
the testimony of expert witnesses. Therefore, I
agree with this Court’s statement in General
Supply Co. v. Virgil D. Goucher and Bud Stevens
d/b/a Bar S Trucking, No. 95,415, slip op. at 6,
(Okla. Civ. App. May 28, 2002) (affirming a
judgment favorable to the defendant despite
testimony from a Highway Patrol trooper
regarding the unsafe driving of the plaintiff’s
driver): “It is the jury that finally decides what
was safe, unsafe, or whether an action or inaction was the cause of the collision.”
¶24 Nonetheless, to the extent the district
court erred in overruling Moore’s objection to
the question posed, the record when viewed in
its entirety mitigates that error, in my view.
First, Thomson consistently testified on direct
and cross-examination that he was not testifying to who was at fault and when asked by
Blackwell’s counsel if he found any “’fault,’ on
Mr. Blackwell,” Thomson did not answer that
question.
Q: Officer Thomson, after you completed
your investigation using your background
and experience, did you find any type of,
as you call it, “fault,” on Mr. Blackwell?
1250
A. Well, again, as I say, I have always been
trained not to determine fault. As far as Mr.
Blackwell goes, I determined that there
was nothing for me to be able to site [sic]
him for.
Only when pressed on the issue by Moore’s
counsel as to whether in his opinion Blackwell
was “fault-free,” did Thomson use the word
“fault.”
Q. So is it your testimony that Mr. Moore is
fault-free?
A. I’m not saying fault on anybody. I’m just
assessing who might have been most at
cause in the accident —
Q. Okay.
A. — and due to the fact that Mr. Moore,
from my information, went over to the center of the roadway instead of to the edge of
the roadway, I would lend more credence
at him being more at fault in the accident or
more responsible — .
¶25 Second, Thomson’s use of the word
“fault” at this point is capable of being interpreted as a misstatement which Thomson
immediately corrected with the language “or
more responsible.” The district court, with the
benefit of observing Thomson during this testimony, concluded the following day that “my
recollection yesterday is [Thomson] would not
determine fault for either one of the parties
from his testimony.” “[T]he credibility of witnesses and effect and weight to be given to
conflicting testimony are questions of fact for
the trier of fact, either the court or jury, and are
not questions of law for the Supreme Court on
appeal.” Loftis v. Collins, 1966 OK 94, ¶ 11, 415
P.2d 927, 929.
¶26 Nonetheless, Thomson’s voluntary testimony that he “determined that there was nothing to be able to site [sic] [Blackwell] for,” was
improper. Generally, evidence that one was or
was not issued a citation in conjunction with
an accident is not admissible. See 8 Am. Jur.2d,
Automobiles & Highway Traffic § 1157 (2007).3
This testimony is objectionable because it is in
the form of a legal conclusion, as was the objectionable testimony in Gabus that the pedestrian
“failed to yield the right-of-way.” 2 Leo H.
Whinery, Oklahoma Evidence, Commentary on the
Law of Evidence § 25.13 (1994).
Vol. 85 — No. 15 — 5/24/2014
III. Fundamental Error
¶27 Even though Harrison should not have
testified that Blackwell was not negligent and
Thomson should not have testified that he did
not issue Blackwell a citation, the issue in this
appeal is whether that improper testimony
requires reversal of the judgment in favor of
Blackwell. “The court, in every stage of action,
must disregard any error or defect in the pleadings or proceedings which does not affect the
substantial rights of the adverse party; and no
judgment shall be reversed or affected by reason of such error or defect.” 12 O.S.2011 § 78.
“Fundamental error compromises the integrity
of the proceeding to such a degree that the
error has a substantial effect on the rights of
one or more of the parties. See 12 O.S.1991 §
2104.” Sullivan v. Forty Second West Corp., 1998
OK 48, ¶ 7, 961 P.2d 801, 803. “A case will not
be reversed for error in the admission or rejection of evidence unless it appears, upon examination of the entire record, that such error
resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional
or statutory right.” Allen v. Oklahoma State Bank
of Enid, 1928 OK 577, ¶ 0, 270 P. 838 (syllabus 3).
“[T]he settled rule is that only those errors in
admission or rejection of evidence which
resulted in miscarriage of justice or constitute
substantial violation of some constitutional or
statutory right require reversal of a cause by
this Court.” Davon, 1970 OK 51, ¶ 16, 467 P.2d
at 474.
A. Thomson’s Citation Testimony
¶28 Determining any prejudicial effect of
Thomson’s testimony requires a review of the
entire record. First, Moore objected to one
question and answer at the end of twenty
pages of Thomson’s direct testimony. The
remainder of Thomson’s testimony that Moore
finds objectionable was elicited on cross-examination. To the extent this testimony would be
prohibited pursuant to Oklahoma law, Moore
is solely responsible for the error. “A party on
appeal is not permitted to secure a reversal of a
judgment based on invited error.” State ex rel.
Oklahoma Bar Ass’n v. Perkins, 1988 OK 65, ¶ 17,
757 P.2d 825, 830.
¶29 Second, despite the fact that Thomson
should not have testified that he did not issue
Blackwell a citation, Moore did not request to
have that testimony stricken, even though the
issue of citations had not been previously
introduced or discussed and was not solicited
Vol. 85 — No. 15 — 5/24/2014
by the question. In addition, Moore did not file
a motion for directed verdict or a motion for
new trial to address this error. “Trial courts are
not traditionally reversed for error unless the
error was called to their attention at a time
when they themselves could reasonably be
expected to correct it.” Gaines v. Sun Refinery &
Mktg., 1990 OK 33, ¶ 20, 790 P.2d 1073, 1080
(overruled on other grounds by Davis v. B.F.
Goodrich, 1992 OK 14, 826 P.2d 587).
¶30 Third, Moore has not shown that the
jury’s verdict would have been in his favor if
Thomson’s “citation testimony” had been
excluded. See Montgomery v. Murray, 1970 OK
226, 481 P.2d 755. Consequently, I do not find
that it was “highly probable” that “the jury
was unduly influenced” by Thomson’s testimony about citations. Gabus, ¶ 28, 678 P.2d at
257. Therefore, I cannot conclude that the
admission of Thomson’s citation testimony,
when viewed in its entirety along with “the
accumulation of eyewitness testimony and
photographic evidence . . . was a clear abuse of
discretion.” Madden v. Board of County Comm’rs
of Hughes County, No. 97,832, slip op. at 14,
(Okla. Civ. App. Feb. 24, 2004) (emphasis in
original) (affirming judgment in favor of driver
despite testimony from the investigating officer that the driver could not have avoided the
accident because of a washed out portion of the
county road). With respect to the citation testimony provided by Thomson, I find no error
requiring reversal of the judgment in favor of
Blackwell.
B. Harrison’s Negligence Testimony
¶31 Although I agree with the Majority that
Harrison’s voluntary statement that Blackwell
was not negligent was improper, we review
error in the admission of that testimony for
fundamental error. First, Harrison was not
asked if he thought Blackwell was negligent.
Harrison was asked what he thought the cause
of the accident was — two entirely different
questions in my view. Second, although the
district court should have stricken Harrison’s
statement based on Moore’s continuing objection, Moore bears some responsibility for failing to point out that Harrison did not answer
the question that was asked or the difference
between testimony about the cause of the accident and testimony about who was negligent.
Ultimately, I find no basis on which to conclude that a different verdict would have been
rendered if the challenged testimony had been
excluded. See Montgomery v. Murray, 1970 OK
1251
226, ¶ 20, 481 P.2d 755, 761 (reversing order
granting plaintiff a new trial in an automobile
collision case because there was nothing in the
record to show the verdict would have been in
plaintiff’s favor if the objectionable evidence
had been excluded). As stated by counsel for
Moore in this case:
Q. And if I understand your opinion correctly, Mr. Blackwell was in a no-win situation
that night. Would that be a fair summary?
A. Basically, I would say that’s a fair summary.
The evidence in this record fully supports Harrison’s opinion that Blackwell could not have
avoided hitting Moore.
IV. Moore’s Objection to the Remainder of
Harrison’s Testimony
¶32 Moore’s objection to Harrison’s testimony is not just limited to the statement about
Blackwell’s lack of negligence. Proposition I of
Moore’s appeal argues the district court
“improperly allowed defendant’s expert witnesses to testify on issues properly reserved for
the jury.” In substance, Harrison testified on
direct examination that in his opinion Blackwell took evasive action when he saw Moore
by applying his brakes and swerving to the left
and that they collided across the centerline of
the road because Moore crossed the centerline
in an effort to avoid Blackwell’s car. Harrison
testified that after impact, Moore hit the windshield of Blackwell’s car and traveled approximately 68 feet on the hood before Blackwell’s
car stopped and Moore was thrown off. He
also testified that tire marks from Blackwell’s
swerve maneuver showed that maneuver
began approximately 64 feet before the point of
impact.
¶33 From these facts, Harrison testified that
he was unable to determine the exact speed of
Blackwell’s vehicle at the time of impact but in
his opinion the maximum speed would have
been no more than 35 miles per hour. In part,
he reached this conclusion based on the location of the damage to Blackwell’s windshield
and the severity of Moore’s injuries. Based on
the physical evidence and the calculations he
made from that evidence, Harrison testified
that in his opinion Blackwell could not have
been traveling more than 40 miles an hour
when he began the swerve maneuver. As a
result, Harrison testified, Blackwell was
approximately 100 to 150 feet from the boys
1252
when he would have first been able to see
them, that he would have had only one and a
half to two seconds to react as he did and that
Blackwell’s reaction time was “very, very good”
and “above average.” Harrison testified that
the boys would have been able to see Blackwell’s headlights from 1200 to 1500 feet away.
Finally, Harrison stated that in his opinion
Blackwell took appropriate action and the accident occurred because Moore jumped into the
path of Blackwell’s car. Harrison concluded his
direct examination by stating his opinion that
the accident would not have happened if
Moore had gone the same way as the other boy
or if Moore had just stood still when Blackwell
swerved.
¶34 The basis for Moore’s objection to Harrison’s statement that he did not find Blackwell
negligent is clear. The “specific ground” for his
objection to the remainder of Harrison’s testimony is somewhat illusive.
Error may not be predicated upon a ruling
which admits or excludes evidence unless
a substantial right of a party is affected,
and: 1. If the ruling is one admitting evidence, a timely objection . . . appears of
record, stating the specific ground of objection, if the specific ground was not apparent from the context.
12 O.S.2011 § 2104(A). As the Majority Opinion
documents, Moore’s objection to Harrison’s
testimony and the basis for his objection to
Thomson’s testimony was presented to and
rejected by the district court on several occasions. However, the scope of Moore’s objection
evolved from the time it was originally made.
¶35 In his March 29, 2010, motion in limine,
Moore sought to exclude all of Harrison’s testimony. Harrison had been listed by Blackwell as
an expert witness in accident reconstruction.
The motion cited Gabus and Jackson v. Brown,
1961 OK 88, 361 P.2d 270,4 as authority for the
proposition that (1) the matters about which
Harrison would testify were within the common
knowledge of jurors; and (2) testimony by police
officers is prejudicial and invades the province
of the jury.5 On January 13, 2011, Moore amended that motion and listed twenty-three “opinions” about which he anticipated Harrison
would testify based on Harrison’s recent deposition testimony.6 Both motions argued:
Oklahoma law expressly prohibits a police
officer or other expert from testifying and
rendering an opinion regarding the wrong-
Vol. 85 — No. 15 — 5/24/2014
fulness or correctness of the parties’ actions
in connection with a vehicle collision, which
of the parties was at fault or which acts of
the parties contributed to the accident.
Although Moore’s original motion argued that
all of Harrison’s testimony was inadmissible,
his amended motion argued that only a portion of Harrison’s testimony, i.e., the twentythree “opinions,” was inadmissible.
¶36 Many of the twenty-three “opinions”
listed in the amended motion are not opinions,
such as: the plaintiff was walking in the dark,
on a dark road wearing dark clothes; plaintiff
was walking with the traffic in defendant’s
lane; defendant’s headlights were working
properly; and defendant traveled approximately 68 feet from the point of impact until his
vehicle stopped. The Majority and I agree that
Harrison was permitted to testify regarding
facts evident from the physical evidence.
¶37 As to Harrison’s opinion testimony,
Moore’s amended motion concedes that Harrison could testify about what he “saw, measured
or calculated.” Moore’s Reply to Blackwell’s
response to his motion in limine states: “Terry
Harrison will testify concerning speed of defendant’s vehicle which is admissible. Plaintiffs [sic]
only seek to exclude his testimony outside of
the speed calculations.”7 And, in a motion to
“clarify” the order overruling his motion in
limine, Moore argued that Harrison “should be
limited to scientific evidence only, such as
speed, skid marks and calculations. Items
which are beyond the common understanding
of the jury.”
¶38 At the beginning of trial, Moore’s counsel argued that he needed a “running objection
to [Harrison’s] testimony based on Gabus v. Harvey to every question that is asked and answered
by that expert that is nonscientific.” Counsel
explained that he needed the objection “to preserve my objection for appeal” of the “Motion in
Limine that you overruled on Friday.” Counsel
was also concerned that repeated objections
would be “jumping and interfering in front of
the jury.” The district court deferred ruling until
Harrison was called to testify. From the exchange
the following day when Harrison was called to
testify, it is clear that Counsel for Blackwell and
the trial judge understood that Moore was
requesting a continuing objection to questions
involving Harrison’s opinion about the cause
of the accident rather than his background and
qualifications as an expert.
Vol. 85 — No. 15 — 5/24/2014
¶39 Counsel for Moore agreed and continued
to argue, based on Gabus, “that an investigating
police officer or an accident reconstructionist
cannot give an opinion as to who was at fault,
who was not at fault, or argue facts which
would suggest fault.” In this exchange, Moore
did not reurge his second objection based on
Gabus, that even if relevant, testimony from a
police officer or accident reconstructionist is
“overly prejudicial and invades the province of
the jury.” He did add that Harrison’s testimony
was cumulative because Thomson had already
been allowed to testify that Blackwell “was
fault-free in this crash.” The district court granted Moore a continuing objection as to Harrison’s
“expert opinion evidence” regarding “causation
and negligence.” Fairly interpreted on the basis
of this record, that continuing objection was to
any testimony by Harrison (1) about the cause of
the accident, (2) about which party was at fault,
(3) about which party was negligent and, (4) that
was duplicative to Thomson’s testimony that
Blackwell was, as Moore put it, “fault-free.”
¶40 However, Moore’s brief in chief is not
limited to these issues. First, he argues, and for
the first time, that permitting Thomson to be
qualified as an expert “was a surprise to the
Plaintiff, to say the least.” The only objection
Moore made to the trial judge when Thomson
was tendered as an expert was “back to Gabus
v. Harvey that says an investigating officer or an
accident reconstructionst cannot give an opinion as to fault or argue facts, which would suggest fault.” Generally, this Court does not reach
issues the appealing party fails to raise in the
trial court. Bottles v. State ex rel. Oklahoma State
Bd. of Med. Licensure and Supervision, 1996 OK
59, ¶ 4, 917 P.2d 471, 472. In addition to failing
to preserve this issue for appeal, Moore has
failed to demonstrate the nature of the “surprise.” Thomson was listed as a witness Moore
intended to call. Further, cross-examination
shows that Thomson and Moore’s counsel met
in Moore’s counsel’s office prior to the trial.
¶41 Second, Moore argues in his brief in chief
that permitting both Harrison and Thomson to
opine that Blackwell was not negligent, but
that Moore was negligent, constituted cumulative evidence and “piling on.” No authority is
cited in support of this proposition. Issues not
supported by argument and authority in the
party’s brief may be deemed waived. In re
Estate of Walker v. Walker, 1985 OK 2, ¶ 1, 695
P.2d 1; Okla. Sup. Ct. R. 1.11(k)(1), 12 O.S.2011,
ch. 15, app. 1.
1253
¶42 Third, in this appeal Moore attempts to
revive his motion in limine argument that the
testimony of these experts was prejudicial and
put the “’stamp of expertise’ on an issue the
jury is fully capable to decide — in other
words, invading the province of the jury.” That
was not an argument presented to the trial
judge when Moore was granted his continuing
objection.
¶43 Fourth, Moore argues that the experts
relied solely on the statements of witnesses and
that their opinions were not based on any independent scientific evidence. “NO SCIENTIFIC
EVIDENCE was needed to defend this case,
therefore, this testimony does not assist the
jury in understanding the facts of this case.” It
is difficult to take this argument seriously
when Moore concedes that at least some of
Harrison’s testimony was “beyond the common understanding of the jury.” Nonetheless,
neither the record nor the exchange with the
trial judge when requesting a continuing objection support this contention. Moore justifies
this argument by pointing out that he never
argued that Blackwell was speeding. However,
the central theme of Moore’s case was that
Blackwell was “driving too fast for the lighting
conditions.”
¶44 Harrison’s opinion as to the cause of this
accident, if believed by the jury, established
that given the lighting conditions and speed of
Blackwell’s car he did not have enough time to
avoid hitting Moore unless Moore had stood
still or had gone in the same direction as the
other boy. Clearly, Harrison’s opinion was
based on what he “saw, measured [and] calculated.” Just as clearly, Harrison relied on the
calculations he made utilizing his “specialized
knowledge” to estimate the speed of Blackwell’s car, the point of impact and the time and
distance Blackwell had from the time he saw
the boys to the point of impact. From his arguments to the district court it is unclear whether
Moore finds this testimony objectionable
because these “facts . . . would suggest fault.”
¶45 Nonetheless, the admissibility of opinion
testimony regarding the speed of a vehicle was
determined long before section 2702 was
adopted. “Opinion evidence of a duly qualified
expert as to the speed of a motor vehicle, traveling upon a highway, based on skid marks on
the highway and other physical facts, is admissible.” Continental Oil Co. v. Elias, 1956 OK 343,
¶ 0, 307 P.2d 849, 851 (syllabus 4). Accord, Covel,
2012 OK 5, 272 P.3d 705. Further, “[o]pinion
1254
testimony concerning the point of impact is
proper if the expert witness first details the
facts upon which his conclusion is based.”
Gabus, 1984 OK 4, ¶ 4, 678 P.2d at 258 (Hodges,
J., dissenting). That was also the law in Oklahoma even prior to the adoption of section
2702. See Graves v. Graves, 1970 OK 177, 475 P.2d
171 (finding no error in overruling objection to
investigating officer’s opinion about the point
of impact).
¶46 Despite Moore’s objection, I do not
understand the Majority Opinion as holding
this kind of testimony about speed and point of
impact, for example, was improper. But Harrison also testified that given the time, distance
and speed in this case Blackwell was unable to
avoid hitting Moore unless Moore stood still or
went the same way as the other boy. From my
interpretation of Moore’s “causation and negligence” objection, it is this last testimony that he
finds particularly objectionable. The Majority
agrees. I do not. In my view, it was “permissible for [Harrison] to take the further step of
suggesting the inference which should be
drawn from applying [his] specialized knowledge to the facts.” Oklahoma Evidence Subcommittee’s Note to Section 2702, Okla. Stat.
tit. 12, § 2702 (West 2009).
¶47 Even if Gabus has not been abrogated,
this case, in my view, is “arguably more complex” than Gabus. Cf., Madden v. Board of County
Comm’rs of Hughes County, No. 97,832, slip op.
at 14, (Okla. Civ. App. Feb. 24, 2004) (affirming
judgment in favor of driver despite testimony
from the investigating officer that the driver
could not have avoided the accident because of
a washed out portion of the county road). Further, Moore argued Blackwell did not brake but
accelerated; Blackwell argued he immediately
braked and swerved to the left. Moore argued
that although Blackwell was not speeding, he
was driving “too fast for the lighting conditions.” Therefore, the evidence about what
Blackwell did or did not do when he saw the
boys or should or should not have done was
disputed. Cf., Gabus, 1984 OK 4, ¶ 4, 678 P.2d at
258 (Hodges, J., dissenting) (“[T]he [expert witness] evidence was helpful to the jury on the
issue of causation because there was contradictory testimony . . . .”).
¶48 And, even assuming it accepted all of
Harrison’s testimony on causation, the jury
still had to determine whether Blackwell’s conduct conformed to the standard of care in order
to resolve the ultimate issue of who was negli-
Vol. 85 — No. 15 — 5/24/2014
gent. Moore consistently argued that even
though Blackwell was not speeding, he should
have been driving even slower because it was
dark. Harrison did not testify about what
speed he thought was appropriate for the conditions. He did not testify about the applicable
standard of care or whether Blackwell conformed to that standard. He only testified that
given the circumstances of the case, Blackwell
took appropriate action but that if he had been
driving slower he could have avoided the accident. Harrison did not tell the jury how to
decide the case except with respect to the one
statement he made about Blackwell’s lack of
negligence. In my view, the vast majority of
Harrison’s testimony tended “to make the existence of any fact that is of consequence to the
determination of the action more probable or
less probable than it would be without the evidence.” 12 O.S.2011 § 2401 (defining relevant
evidence). As Daubert and Christian confirm:
“All relevant evidence is admissible, except as
otherwise provided by the Constitution of the
United States, the Constitution of the State of
Oklahoma, by statute or by this Code.” 12
O.S.2011 § 2402. Consequently, Harrison’s testimony about the cause of this accident and the
acts of the parties that did or did not contribute
to that cause was admissible, in my view. I find
no basis on which to exclude this evidence
other than Gabus.
V. Conclusion
¶49 Finally, I share the Majority’s concern
about the increased litigation expense of regularly employing expert witnesses and the “vice
of . . . encouraging a contest by experts rather
than a trial by witnesses.” Gabus, 1984 OK 4, ¶
25, 678 P.2d at 257. However, the law regarding
the admissibility of expert witness testimony
has changed since Gabus was decided, and the
“vice” of concern to the Court in Gabus almost
twenty years ago is now a common aspect of
litigation. Therefore, I respectfully dissent to
the Majority’s reversal and would affirm the
judgment in favor of Blackwell.
1. I agree with the Majority that the district court did not err with
respect to the impeachment issue and concur in that portion of the
Majority Opinion. Finally, I would reach the jury instruction issue
deferred by the Majority, and finding no error with respect to the jury
instructions, I would affirm the judgment in favor of Blackwell.
2. The ultimate issue in any tort case is liability. Most often, liability is determined by which party was negligent. In some circumstances, however, proof of liability may require more than proof of negligence. Thompson v. Presbyterian Hosp., Inc., 1982 OK 87, ¶ 12, 652 P.2d
260, 263-64: “Negligence is not actionable unless it proximately causes
the harm for which liability is sought to be imposed.” Pepsi-Cola Bottling Co. of Tulsa, Okla. v. Von Brady, 1963 OK 236, ¶ 21, 386 P.2d 993, 997:
“[A]n injury which could not have been foreseen nor reasonably
Vol. 85 — No. 15 — 5/24/2014
anticipated as the probable result of an act of negligence is not actionable.” Sturdevant v. Kent, 1958 OK 48, ¶ 3, 322 P.2d 408, 409: “If the
negligence complained of merely furnished a condition by which the
injury was possible and a subsequent independent act caused the
injury, the existence of such condition is not the proximate cause of the
injury.” None of those circumstances are present in this case.
3. In Gabus, the investigating officer testified not only regarding
who failed to yield the right-of-way, but also that “there was no
charges filed.” Gabus, 1984 OK 4, ¶ 7 n.1, 678 P.2d at 254. The Gabus
Court did not address the propriety of that testimony or any prejudicial effect from its admission without objection.
4. The Jackson holding is stated in the Court’s syllabus:
1. An expert witness may testify only as to the physical facts disclosed in course of his investigation of an automobile collision. He
may not state his opinion as to the cause of the collision.
2. In a negligence action growing out of a motor vehicle collision,
it was reversible error to admit, over timely objection of the
plaintiff, conclusions of investigating officer, that the plaintiff
was making an improper turn at the time of the collision.
Jackson, 1961 OK 88, ¶ 0, 361 P.2d at 270 (syllabus 1). First, as Moore
notes, Jackson was decided before the Evidence Code was enacted.
Second, its value is further questionable because the Court found that
the officer gave his opinion on an ultimate issue in the case: “It is thus
clear that the opinion evidence elicited from the officer purports and
contemplates to decide the very cause of the collision - an ultimate
issue the jury is sworn to determine.” Id. ¶ 12, 361 P.2d at 272. As the
Gabus Court recognized, section 2704 now makes clear that expert
testimony is not objectionable because it embraces an ultimate issue
the jury is to decide in the case.
5. Although Harrison was listed and testified as an expert witness,
he was also employed as a police officer during the relevant time. The
Gabus Court, in holding that the investigating officer’s testimony was
prejudicial, focused on his position as a police officer citing Maben v.
Lee, 1953 OK 139, ¶ 11, 260 P.2d 1064, 1067: “Such testimony given by
a witness occupying an official position, assuredly must have greatly
impressed the jury, particularly since the average laymen undoubtedly
would be inclined to place the stamp of authenticity upon testimony
by such an officer.” On this point, I find both Gabus and Maben distinguishable. Harrison was not the investigating officer in this case. The
fact that he was employed by the Oklahoma City Police Department is
coincidental. It was a fact perhaps relevant to his qualifications as an
expert. But Harrison was not acting in an official capacity in this case,
a fact clearly established by Moore’s counsel. Harrison was crossexamined in detail regarding who paid him for his work on this case,
the number of times he had been hired as an expert witness by Blackwell’s counsel in other cases and the number of times he had been
hired as an expert witness by defendants as opposed to plaintiffs. He
was not cross-examined regarding his qualifications as an expert in
accident reconstruction, the scientific methods he used, or the facts he
relied on to form the opinions about which he testified. In my view, the
Gabus rationale for determining the prejudicial effect of an investigating officer’s testimony is inapplicable to the testimony by Harrison.
6. “Therefore the following opinions offered by defendant’s expert,
Terry Harrison, should be excluded:
1. “At the time of this accident the plaintiffs were walking in the
dark, on a dark road, wearing dark clothes.”
2. “The plaintiff and his friend was walking with traffic in the
lane of defendant.”
3. “The defendant was operating his vehicle in a proper manner
prior to and at the time of this accident.”
4. “The defendant was operating his vehicle in a proper manner
prior to and at the time of this accident.”
5. “The defendant saw the plaintiffs in the roadway and was too
close to try to avoid.”
6. “The defendant swerved to the left believing that any nature
person walking down the middle of his lane would go to the
right.”
7. “The defendant had no way of knowing that the pedestrians
would go in the opposite directions.”
8. “The defendant was not speeding.”
9. “The plaintiff should be walking against traffic.”
10. “If the plaintiff would have been walking against traffic
he would have had unlimited vision to see the defendant
approaching.”
11. “Pedestrians must yield to the traffic which they failed to
do.”
12. “The defendant is not expected to have to observe to young
boys walking in his lane of traffic in the dark.”
13. “The defendant’s lights were working properly as the plaintiff and boys are invisible to the lights that aluminate [sic] against
a dark back ground.”
1255
14. “If the plaintiff had went to the right there would have of
been no accident.”
15. “The plaintiff’s father is also at fault as to properly instruct
his son how to walk properly at night and against traffic.”
16. “Due to the breakage area on the windshield it shows the
estimated speed at impact at approximately 25 - 35 mph.”
17. “Mr. Harrison will testify that no fault exist upon the defendant.”
18. “The defendant traveled approximately 72 feet from the point
of impact until the vehicle totally stopped.”
19. “if the defendant had total lock-up after impact the maximum
speed hewould have been traveling would have been 38 mph at
impact. However, the defendant did not have total lock-up thus
his speed at contact would have been 35 mph or less.”
20. “The lights along I-35 interfere with the eyesight of the defendant.”
21. “The kids available sight of the defendant’s headlights are
unlimited except for the terrain.”
22. “If plaintiff had just walked straight or went right then the
defendant would have missed him.”
23. “From the aerial map, I have placed Mr. Blackwell’s vehicle
at four different locations on the access road, as well as circles of
the children involved. . . . Mr. Blackwell observed the young men
appropriately for the time of night and the lighting in the area.”
7. The trial judge determined this Reply was filed out of time and
did not consider it when denying Moore’s motion the Friday before
trial.
2014 OK CIV APP 38
WAYNE ALLEN SCHOMMER and
DEBORAH ANN SCHOMMER, Husband
and Wife, Plaintiffs/Appellants, vs.
COMMUNICATE NOW!, L.P. d/b/a
COMMUNICATION SOLUTIONS,
Defendant/Appellee.
Case No. 110,228. March 21, 2014
HONORABLE ROGER H. STUART,
TRIAL JUDGE
AFFIRMED
Gary S. Chilton, Gideon A. Lincecum, Holladay & Chilton, PLLC, Oklahoma City, Oklahoma, for Plaintiffs/Appellants,
Matthew L. Dobson, Kyle Goodwin, Edward
O. Lee, Edmond, Oklahoma, for Defendant/
Appellee.
¶1 In the underlying personal and/or private rights injury action against Defendant
Communicate Now!, L.P., d/b/a Communication Solutions (Appellee), Plaintiffs Wayne
Allen Schommer and Deborah Ann Schommer,
husband and wife (collectively, the Schommers), appeal from a trial court judgment in
their favor in accordance with Defendant’s
modified offers of judgment made pursuant to
12 O.S.Supp. 2002 §1101.1(A).1 The Schommers’
request for reversal of the confessed judgment
is premised solely on whether the trial court
1256
erroneously invalidated Defendant’s original
unapportioned offer of judgment even though
the Schommers had timely accepted it. We
AFFIRM.
FACTS
¶2 According to the petition the Schommers
filed against Defendant, Mr. Schommer went
to Defendant’s store to purchase a new LG Vu
smartphone, during which process he authorized Defendant’s employee to transfer all data
from his old mobile phone to the smartphone.
After completing the data transfer, the employee kept that smartphone and instead gave Mr.
Schommer another new LG Vu phone, without
changing the International Mobile Equipment
Identity (IMEI) number for the original LG Vu
phone which was referenced in the purchase
agreement. Because the employee had returned
the old mobile phone, the Schommers were not
concerned upon later discovering its data had
not been transferred to their smartphone.
¶3 Unfortunately, the Schommers later
learned Defendant’s employee had not only
“surreptiously” transferred their personal photographs to other employees and his supervisor, but also had sold the LG Vu phone with all
of the Schommers’ “private and confidential
data” to a third party as a new device.
¶4 Based on the above-described misconduct, the Schommers alleged invasion of privacy, violations of the Oklahoma Consumers Protection Act,2 concealment/non-disclosure, and
negligence/negligent misrepresentation against
Defendant. Their prayer for relief in the petition
sought “actual damages in an amount in excess
of $10,000,”3 punitive damages, attorney’s fees
and costs, and other allowable relief.
¶5 Defendant answered, specifically denying
Plaintiffs’ allegations. On August 22, 2011
Defendant filed a single Offer of Judgment,
stating:
COMES NOW, [Defendant], pursuant to 12
[O.S.] §1101.1(A), and hereby offers judgment to be taken against it for the total
amount of $10,000.00 (Ten Thousand Dollars and Zero Cents) inclusive of prejudgment interest, costs and attorney fees
incurred up and including the date of this
Offer of Judgment.
On September 6, 2011, the Schommers each
filed separate acceptances of Defendant’s Offer
of Judgment.
Vol. 85 — No. 15 — 5/24/2014
¶6 On September 14, 2011, the Schommers
moved for the court to enter judgment on the
Offer of Judgment as accepted. That same day,
Defendant filed its Objection to Entry of Judgment, arguing its Offer of Judgment was for
$10,000.00 total, not $10,000.00 for each plaintiff. It alternatively argued the Offer of Judgment was invalid under Haddock v. Woodland
Park Homes, Inc., 2004 OK CIV APP 42, 90 P.3d
594, and Medlock v. Admiral Safe Co., Inc., 2005
OK CIV APP 72, 122 P.3d 883, because it failed
to apportion the offer sum between the plaintiffs. Plaintiffs responded, arguing entry of
judgment was mandatory because they had
accepted the offer. They also argued the offer
was not made to Plaintiffs “collectively” or “as
a group” like the respective offers of judgment
in Haddock and Medlock.
¶7 On October 11, 2011, a hearing was held
on, inter alia, the Schommers’ motion to enter
judgment and Defendant’s objection to such
entry. That same day and “pursuant to the
Court’s request at the motion hearing,” the
Schommers filed a Notice with one exhibit
attached, i.e., a copy of the Offer To Confess
Judgment for $50,000.00 filed in Tulsa County
District Court. Naomi Medlock, et al., v. Admiral
Safe Company, Inc., et al., Case No. CJ-200300732 (Medlock offer). On October 17, 2011,
Defendant moved to settle journal entry, to
which the Schommers filed a response.
¶8 On November 15, 2011, apparently relying on the court’s announcement at the October 11, 2011 hearing about its potential ruling,
Defendant made separate § 1101.1(A) Offers of
Judgment to the Schommers, each inclusive of
prejudgment interest, costs and attorney fees,
i.e., $3,000 to Mr. Schommer and $7,000 to Mrs.
Schommer, respectively. Two days later, Plaintiffs filed separate acceptances of Defendant’s
Offers of Judgment.
¶9 By “Journal Entry” filed November 21,
2011, the trial court ruled on the several motions
the parties argued at the October 11, 2011 hearing. In relevant part, the court found:
Defendant’s Offer of Judgment is invalid
on the basis of the language of the offer to
confess judgment used in Naomi Medlock, et
al., v. Admiral Safe Company, Inc., et al., Case
No. CJ-2003-00732 (Tulsa County, State of
Oklahoma) and the subsequent ruling in
Medlock v. Admiral Safe Company, Inc., 2005
OK CIV APP 72, ¶10 & ¶15, 122 P.3d 883,
Vol. 85 — No. 15 — 5/24/2014
and Haddock v. Woodland Park Home, Inc.,
[2004 OK CIV APP 42, 90 P.3d 594].4
In the same Journal Entry, the court expressly
denied the Schommers’ motion to enter judgment.
¶10 On November 22, 2011, the trial court
filed a “Judgment” finding Defendant had
filed on November 15, 2011 and pursuant to §
1101.1(A),5 “an offer of judgment to be taken
against it by [Mr. Schommmer] for $3,000.00”
and “an offer of judgment to be taken against it
by [Mrs. Schommer] for $7,000.00,” both offers
inclusive of prejudgment interest, costs and
attorney fees. After finding each plaintiff had
filed a written acceptance on November 17,
2011, the court entered judgment in favor of the
Schommers in accordance with Defendant’s
November 15, 2011 Offers. Plaintiffs’ appeal
followed, seeking to reverse both the court’s
pre-judgment order and the November 22,
2011 Judgment.6
ANALYSIS
¶11 The trial court invalidated Defendant’s
first § 1101.1(A) offer of judgment for failure to
apportion the offered amount of $10,000
between each plaintiff, based on the language
in the Medlock offer7 and the holdings in Medlock, 2005 OK CIV APP 72, 122 P.3d 883, and
Haddock, 2004 OK CIV APP 42, 90 P.3d 594. The
same ruling implicitly rejects the Schommers’
argument the court had no discretion to refuse
to enter judgment after their acceptance. Medlock and Haddock both hold § 1101.1 offers of
judgment made to multiple plaintiffs in which
the offered amount is not apportioned between
the plaintiffs are invalid. However, neither case
involved a plaintiff’s timely-accepted § 1101.1
offer of judgment,8 as occurred in this case, nor
decided the effect of such acceptance on a
plaintiff’s action or claim(s) and a trial court’s
discretion with respect to an accepted § 1101.1
offer of judgment, as the Schommers construe
Station Operation, LLC v. Circle K Stores, Inc.,
2010 OK CIV APP 2, ¶ 13, 229 P.3d 1283. Our
analysis begins with this preliminary issue.
Is Station Operation dispositive of the issue
on appeal?
¶12 To support the Schommers’ argument on
appeal that the trial court was required to enter
judgment after they accepted Defendant’s
unapportioned offer of judgment, they rely
only on the following paragraph from Station
1257
Operation, LLC v. Circle K Stores, Inc., 2010 OK
CIV APP 2, ¶13, 229 P.3d 1283:
The consummation of an offer and its acceptance in a judgment under 12 O.S.Supp.
2008 § 1101.1(B) results in a judgment which
constitutes ‘the final determination of the
rights of the parties to an action.’ 12 O.S.2001
§ 681. Accordingly, “acceptance of a confessed judgment removes all prejudgment
issues from the trier’s consideration ....
[barring] the trial court from entertaining
evidence material to that which is no longer within the perimeter of adjudicable
controversy.” Fleet v. Sanguine, Ltd., 1993
OK 76, ¶ 9, 854 P.2d 892, 898. In other
words, “a § 1101 offer’s acceptance extinguishes the entire cause of action and substitutes in its place the right to claim the
confessed recovery.” Id. at ¶ 9, 854 P.2d 89899. (Parenthetical phrases omitted; emphasis added.)
¶13 Like the trial court, we are not persuaded
Station Operation is dispositive of the issue on
appeal for two reasons. First, we are not here
considering “prejudgment issues” which the
plaintiffs in Fleet and Station Operation continued to pursue after acceptance of the offer to
confess judgment. In Fleet, three mineral owners sued an oil and gas well operator for damages under several theories of liability and
specifically invoked 52 O.S.1981 § 540(B)’s penalty provision (12% prejudgment interest for
violation of § 540(A)). The Supreme Court in
Fleet determined the plaintiffs’ “acceptance of
the [defendant’s] § 1101 offer of judgment
removed from judicial inquiry all elements of the
mineral owners’ damages, including prejudgment
interest” that was allowed for § 540(A) violations and held “it was error for the trial judge
to add [such] interest to the amount of the compromised recovery.” (Emphasis added). 1993
OK 76, ¶ 13.
¶14 Similarly, in Station Operation, the plaintiff, who had sought both monetary damages
and injunctive relief under the Oklahoma
Unfair Sales Act (the Act), unconditionally
accepted the corporate defendant’s § 1101.1(B)
offer to confess judgment for $3,000 “without
confessing any wrongdoing.” The plaintiff
moved for entry of a confessed judgment and
requested inclusion of a permanent injunction
to prevent further violations under the Act.
¶15 Relying on the Fleet Court’s application
of § 1101, the Court in Station Operation con1258
cluded, as relevant here, “[i]n the absence of
any intent expressed to the contrary, we must
conclude the terms of the parties’ offer and
acceptance comprise ‘the entire obligation in
suit.’” The Court then found “Plaintiff’s request
for a permanent injunction is but another remedy sought under the same set of facts, and
[his] acceptance of Defendant’s offer extinguished [his] cause of action seeking redress
under the Act. To hold otherwise would, in
effect, allow the trial court to modify the terms
of the accepted offer which is prohibited.”
(Emphasis added.) 2010 OK CIV APP 2, ¶ 19.
¶16 Unlike in Station Operation and Fleet, the
trial court in this case was not presented any
“prejudgment issues” from the Schommers’
action against Defendant for alleged personal
and private rights injuries. By its objection to
entry of confessed judgment on the first offer,
Defendant sought revocation of the offer,
claiming it was for $10,000 total and the
Schommers’ separate acceptances for $10,000
was a counter-offer, or alternatively, a finding
the offer was invalid under Haddock and Medlock for lack of apportionment between the
two plaintiffs. Therefore, the issue for the
court was interpretation of the terms of Defendant’s first offer, not prejudgment issues. We
find no error with the court’s implicit finding
the holding in Station Operation does not apply
to the facts of this case.
The First Offer
¶17 The Schommers argue they are each
entitled to a $10,000 judgment against Defendant because unlike the offers of judgments in
Medlock and Haddock, Defendant’s first offer of
judgment neither expressly requires the plaintiffs’ joint acceptance nor indicates it was made
to Plaintiffs either “collectively” or “as a group.”9
They contend the first offer was “an open offer
to any plaintiff in the lawsuit willing to accept
judgment against it for a sum certain of $10,000.”
Defendant disagrees, clarifying its first offer of
judgment “for the total amount of $10,000.00”
was made “collectively to [the Schommers]” and
arguing a single offer of judgment to both plaintiffs is invalid based on the holdings in Medlock
and Haddock “because of [the Schommers’] separate, individual claims.”
¶18 We are persuaded by the Defendant’s
last argument. In Haddock, the spouses brought
an action against the defendant for the wife’s
personal injuries resulting from a car accident
with the defendant and for loss of consortium
Vol. 85 — No. 15 — 5/24/2014
suffered by the husband. Because the defendant’s § 1101.1 offer of judgment specifically
named both plaintiffs in the body of the offer
and required acceptance from both to be
enforceable, the Court in Haddock found such
lump sum offer “prevents each plaintiff from
evaluating the settlement offer against the
value of his or her claim” and leads to trial
court confusion “in apportioning the various
responsibility for the attorney fees award after
a judgment for less than the settlement offer.”
2004 OK CIV APP 42, ¶17. Importantly, the
Court found “[e]ven though the loss of consortium claim was derivative of [the wife’s] claim,
it is still unclear from [the defendant’s] offer of
judgment which portion of the offer was directed to [the wife] and which portion to her husband.” Id. In Medlock, the four plaintiffs brought
a negligence action for damages allegedly caused
by two defendants (a safe company and its individual owner), who raised contributory negligence as a defense against all four plaintiffs.
Because of the potential reduction in value of
each plaintiff’s claim for negligence damages in
the event of a contributory negligence verdict
against any one or more of the plaintiffs, the
same reasons for invalidating the offer of judgment in Haddock apply to the un-apportioned §
1101.1 offer of judgment in Medlock.
¶19 In this case, Defendant’s first offer of
judgment similarly failed to consider the
Schommers’ individual actions, claims and
damages when making a lump sum offer.
Under such circumstances, we find no error
with the trial court’s pre-judgment ruling
Defendant’s first offer of judgment was invalid
based on the holdings in Haddock and Medlock.
The court’s November 22, 2011 final judgment
is AFFIRMED.
JOPLIN, P.J., and BUETTNER, J., concur.
1. Section 1101.1(A) applies “to civil actions for the recovery of
money in regard to a claim for personal injury, wrongful death, certain
discrimination-type cases and workers’ compensation employee retaliation-type cases,” in which the plaintiff demands in a pleading or in
trial proceedings more than $100,000.00 or the defendant’s offer of
judgments is for more than $100,000.00. Boston Avenue Management,
Inc. v. Associated Resources, Inc., 2007 OK 5, n. 5, 152 P.3d 880.
2. See 15 O.S. § 751 et seq. Only “Mr. Schommer” alleged injury from
Defendant’s alleged violations of the Oklahoma Consumer Protection
Act, in contrast to the remaining three theories of recovery under
which “the Schommers” alleged they had suffered damages by Defendant acts or omissions.
3. As explained in footnote one, § 1101.1(A) is made subject to §
1101(A)(5), which states “[t]he provisions of this subsection shall apply
only where the plaintiff demands in a pleading or in trial proceedings
more than One Hundred Thousand Dollars ($100,000.00), or where the
defendant makes an offer of judgment more than One Hundred Thousand Dollars ($100,000.00).” (Emphasis added.) The Schommers’
Vol. 85 — No. 15 — 5/24/2014
demand in their petition does not demonstrate the applicability of this
section and there is no pre-trial conference order since the scheduled
conference was stricken after Defendant filed the first offer of judgment. However, for the purposes of this appeal, we presume, as do the
parties, that § 1101.1(A) is applicable for lack of a record showing otherwise. According to the certified appearance docket, there are two
separate entries filed October 12, 2011, and titled “Stipulation As to
Damages.” The Schommers did not designate their Stipulations for
inclusion in the appellate record, and neither are attached to Defendant’s “Motion To Strike Plaintiffs’ Stipulations As To Damages”
(“filed under seal” on November 15, 2011,) or the Schommers’ response
to that motion filed November 18, 2011, which Defendant counterdesignated. The latter instruments indicate a conflict between the
Schommers’ pre-”offer of judgment” demands for more than $100,000
and their post-offer of judgment demands of less than $100,000 allegedly made in the Stipulations. Such conflict was never resolved,
because according to the appearance docket, a court minute was filed
January 20, 2012, stating “Defendant’s Motion to Strike [Plaintiffs’]
Stipulations as to Damages - Stricken.” (Emphasis added.)
4. We note for the record the latter case citation was hand-written
between the lines of the otherwise typed judgment and is initialed by
the trial court.
5. In relevant part, § 1101.1(A)(1)(a)-(b) provides:
any defendant may file with the court, at any time more than ten
(10) days prior to trial, an offer of judgment for a sum certain to
any plaintiff with respect to the action or any claim or claims
asserted in the action. An offer of judgment shall be deemed to
include any costs or attorney fees otherwise recoverable unless it
expressly provides otherwise. If an offer of judgment is filed,
each plaintiff to whom an offer of judgment is made shall, within
ten (10) days, file:
a. a written acceptance or rejection of such offer, or
b. a counteroffer of judgment, as described in paragraph 2 of this
subsection.
6. Defendant re-asserted in its Answer Brief the same arguments
made in its pre-assignment motion to dismiss the appeal. The Supreme
Court denied that motion by order filed February 27, 2012, finding
“under the facts and circumstances of this case” the Schommers’
appeal “was not inconsistent with their acceptance of the second offer
to confess judgment,” which exception to the general rule applies
when “it is possible to obtain a more favorable judgment without the
risk of a less favorable judgment. Teel v. Public Service Company of Oklahoma, 1985 OK 112, 767 P.2d 391.” Because the Supreme Court’s order
“is silent” with respect to its effect on the renewability of Defendant’s
dismissal arguments, the Supreme Court’s order may not be re-examined by the Court of Civil Appeals. Whitehall Homeowners Association,
Inc., v. Appletree Enterprise, Inc., 2012 OK 34, ¶ 11, 277 P.3d 1266; L.C.R.,
Inc. v. Linwood Properties, 1996 OK 73, ¶¶ 5-6, 918 P.2d 1388.
In contrast, the same Supreme Court order expressly defers consideration of both “parties’ requests for appeal-related attorney fees and
costs” to this stage of the appeal “to be considered upon proper motion
complying with R. 1.14 of the Oklahoma Supreme Court Rules. No
post-assignment motions for such fees have been filed, and neither of
the parties’ briefs comply with R. 1.14.
7. The offer to confess judgment filed in Case No. CJ-2003-00732,
which was addressed in Medlock, is attached as Exhibit A of the Notice
in the record on appeal and states:
Come Now the Defendants and offer to confess judgment in the
sum of FIFTY THOUSAND AND NO/100 ($50,000.00), pursuant
to the terms and conditions of OKLA. STAT. tit. 12 § 1101, et seq.
(Emphasis in original.)
As the post-October 12, 2011 hearing motions demonstrate, the parties
disagreed whether the above offer was made pursuant to § 1101, as the
Schommers argued, or § 1101.1, as analyzed in Haddock and Medlock.
We disagree with the Schommers’ position, first, because “et seq.” is an
abbreviation referring to consecutive statutory sections usually within
an act. Therefore, use of “§ 1101, et seq.” in the offer identifies it was
made according to § 1101 or one of its consecutive sections, which
includes § 1101.1 and the remaining offer of judgment §§ 1102-1106.
Further, when enacting § 1101.1, the Legislature mandated “[t]his section shall apply to all civil actions filed after the effective date of this
act,” see 12 O.S.Supp. 1995 § 1101.1(D), which language has remained
unchanged despite legislative additions to the section changing the
subsection from (D) to (F) in 1999 and from (F) to (G) in 2002. Because
the misconduct resulting in the filing of the plaintiffs’ civil action in
Medlock occurred in 1999, § 1101.1 was the applicable statute, as a matter of law, not § 1101.
8. Medlock and Haddock are distinguishable from this case in several ways. First, the appeals by the multiple plaintiffs in both Medlock
and Haddock were brought from orders granting and denying requests
for attorney fees and costs under § 1101.1, respectively. Second, the
1259
multiple plaintiffs in Medlock had rejected the defendants’ offer of
judgment by failing to respond and then failed to obtain a judgment
greater than the offered amount. In Haddock, the two plaintiffs had
responded to defendant’s offer of judgment with a counter-offer which
was deemed rejected by the defendant’s timely failure to respond,
there was a defense judgment against one plaintiff, and the other plaintiff’s verdict was $3,000 less than the counter-offer she had made to the
defendant.
9. The Schommers did not raise below the “separate powers of
acceptance” argument they raise in their Brief in Chief and their Reply
Brief. We do not address arguments made for the first time on appeal.
Jones v. Alpine Inv., Inc., 1987 OK 113, ¶ 11, 764 P.2d 513.
2014 OK CIV APP 39
BLUE SKY TELLURIDE, L.L.C., Plaintiff/
Counter-Claim Defendant/Appellee, vs.
INTERCONTINENTAL JET SERVICE
CORPORATION, Defendant/CounterClaimant/Third-Party Plaintiff/Appellant, vs.
HARLEY DAVIDSON CREDIT CORP.,
Third-Party Defendant/Appellee.
Case No. 110,652. January 21, 2014
as corrected February 28, 2014
TULSA COUNTY, OKLAHOMA
HONORABLE DANA LYNN KUEHN,
JUDGE
REVERSED AND REMANDED
Gary L. Richardson, Jason C. Messenger, Tulsa,
Oklahoma, for Plaintiff/Counter-Claim Defendant/Appellee,
J. Schaad Titus, Shannon P. Wheeler, Tulsa,
Oklahoma, for Defendant/Appellant,
Adam J. Strange, James E. Weger, Tulsa, Oklahoma, for Third-Party Defendant/Appellee.
¶1 Defendant/Appellant Intercontinental Jet
Service Corp. (“IJS”) seeks review of an order
granting summary judgment in favor of ThirdParty Defendant/Appellee Harley Davidson
Credit Corp. (“Harley Davidson”). IJS also
appeals the trial court’s order denying its
motion for new trial/reconsideration.
¶2 Plaintiff/Appellee Blue Sky Telluride,
L.L.C. (“Blue Sky”) brought a replevin action
alleging IJS wrongfully retained possession of
a Mitsubishi MU-2 aircraft (“aircraft”) owned
by Blue Sky and delivered to IJS for the limited
purpose of inspection.1 Blue Sky asserted IJS
exceeded the scope of the inspection and performed unauthorized repairs on the aircraft.
IJS filed its answer and counterclaim admitting
it retained possession of the aircraft but that it
did so to ensure payment by Blue Sky for the
1260
repairs it performed with Blue Sky’s consent.
All parties agree the aircraft was delivered to IJS
on or around December 5, 2008. In its counterclaim, IJS claimed it holds a “mechanic’s lien”
filed with the Federal Aviation Administration
(“FAA”) and sought to foreclose the lien and sell
the aircraft. IJS also included a third-party claim
against Harley Davidson Credit Corp. alleging
its lien was superior to any right, title, or interest
held by Harley Davidson.
¶3 Harley Davidson is the successor in interest to Eaglemark Savings Bank, which originally financed the purchase of the subject aircraft. Eaglemark, now Harley Davidson, filed
its purchase money security interest in the aircraft with the FAA on June 21, 2006, and the
document was recorded on July 27, 2006. IJS
filed its lien with the FAA covering the value of
the services and repairs rendered on March 23,
2009, and the document was recorded on April
6, 2009.
¶4 Blue Sky filed a motion for partial summary judgment against the counterclaim of IJS,
arguing the statute of limitations period had
expired for IJS to foreclose its lien pursuant to
42 O.S. §§95 and 100. Harley Davidson also
filed a summary judgment motion arguing IJS
did not hold a common law possessory lien as
it claimed, and, even if it did, such lien was
governed by 42 O.S. §91 and subject to Harley
Davidson’s senior lien. Harley Davidson also
argued that pursuant to 42 O.S. §§95 and 100
the statute of limitations had run barring IJS
from enforcing its lien. In separately filed
responses, IJS asserted it retained possession of
the aircraft and held a common law possessory
lien, the foreclosure of which was not timebarred because the statute of limitations on the
underlying debt had not yet lapsed.
¶5 On March 6, 2012, the trial court granted
summary judgment in favor of Harley Davidson. The journal entry referenced a previously
entered and signed minute order,2 which
included findings and conclusions of law stating, prior to 2009, liens on aircraft were covered by 42 O.S. §91. Statutory changes in the
definition of personal property moved airplanes to 42 O.S. §91A and subsection (B)(3)
required such liens to be foreclosed within
sixty (60) days of filing. According to the
undisputed facts of the parties, IJS filed its lien
with the FAA on March 23, 2009 but did not
seek to foreclose its lien until the filing of its
answer and counterclaim to Blue Sky’s original
petition on May 6, 2010. The trial court held
Vol. 85 — No. 15 — 5/24/2014
that “continued and uninterrupted possession
[did] not ‘secure’ a lien past the SOL.”
¶6 IJS filed a motion for new trial/reconsideration on February 17, 2012 arguing 42 O.S.
2011 §91A(B)(3) did not apply to the facts in
this case and that the statute of limitations on
its common law possessory lien had not yet
expired. IJS also argued its common law possessory lien was superior to Harley Davidson’s
purchase money security interest. IJS further
asserted summary judgment was not appropriate because Harley Davidson would be unjustly enriched by IJS’s repairs and any statute of
limitations was “equitably tolled” due to settlement negotiations. The trial court denied IJS’s
motion to reconsider from which this appeal
was taken. Consistent with 12 O.S. 2011 §951(b),
IJS’s amended petition in error presented the
same issues as its motion for new trial.
¶7 During the course of litigation and with
the trial court’s approval, Blue Sky sold the
aircraft to an unrelated party in an arms length
transaction for $525,000. IJS and Harley Davidson agreed to release their liens on the aircraft
and attached them to the sale proceeds. $125,000
of the sale proceeds was disbursed to Harley
Davidson, and the remaining $400,000 remains
in escrow. Blue Sky did not assert any claims
against Harley Davidson. Blue Sky’s claims
against IJS remain outstanding. This appeal is
properly before this Court as the trial court
invoked 12 O.S. 2011 §994(A) by declaring its
grant of summary judgment in favor of Harley
Davidson was intended to be a final order terminating all claims between IJS and Harley
Davidson and there was no just reason for
delay of any appeal.
STANDARD OF REVIEW
¶8 An appeal from the denial of a motion for
a new trial is reviewed under the abuse of discretion standard.3 Head v. McCracken, 2004 OK
84, ¶2, 102 P.3d 670, 674. However, because the
correctness of the trial court’s denial of a new
trial depends on the propriety of the underlying
grant of summary judgment, we must determine
whether that decision was proper. Id.
¶9 Whether the trial court’s entry of summary judgment was proper is a question of law
we review de novo. Manley v. Brown, 1999 OK
79, ¶22, 989 P.2d 448, 455. In a de novo review,
we have plenary, independent, and non-deferential authority to determine whether the trial
court erred in its application of the law and
whether a dispute exists as to any genuine
Vol. 85 — No. 15 — 5/24/2014
issue of material fact. Kluver v. Weatherford
Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081,
1084. Like the trial court, we examine the
pleadings and summary judgment evidentiary
materials submitted by the parties to determine if a genuine issue of material fact is in
dispute. Carmichael v. Beller, 1996 OK 48, ¶2,
914 P.2d 1051, 1053. In so doing, we view the
facts and all reasonable inferences arising therefrom in the light most favorable to the nonmovant. Id.
ANALYSIS
AIRCRAFT LIENS
¶10 Security interests in most goods are governed entirely by state law. However, given the
interstate nature of aircraft, Congress passed
the Federal Aviation Act (“Act”) of 1958, which
directed the Secretary of Transportation to
establish and maintain a system for recording
“[a]ny conveyance which affects the title to, or
any interest in, any civil aircraft of the United
States.” 49 U.S.C.A §44107(a) (previously 49
U.S.C.A. §1403). The purpose behind the Act
was to create “a central clearing house for
recordation of titles so that a person, wherever
he may be, will know where he can find ready
access to the claims against, or liens, or other
legal interests in an aircraft.” Philko Aviation,
Inc. v. Shackett, 462 U.S. 406, 411 (1983) (internal
citations omitted). The Act requires recording
with the FAA of every transfer of any interest
in a civil aircraft in this country. Id., 462 U.S. at
410; e.g. Bank of Okla. N.A. v. Martin, 1987 OK
CIV APP 42, ¶12, 744 P.2d 218, 220. “Although
state law determines priorities, all interests
must be federally recorded before they can
obtain whatever priority to which they are
entitled under state law.” Philko Aviation, 462
U.S. at 413. See also Martin at ¶12, 744 P.2d at
220 (holding that a security interest was not
perfected until filed with the FAA and priority
of competing security interests in the same collateral was determined by reference to Oklahoma’s UCC statutes). Failure to record with
the FAA “invalidates the conveyance as to
innocent third persons... [b]ut recordation itself
merely validates; it does not grant priority.”
Philko Aviation, 462 U.S. at 413.
¶11 In a case predating Philko but consistent
with its reasoning, the Oklahoma Supreme
Court also held the Act supplanted inconsistent state recording statutes, i.e. 42 O.S. §98,
requiring a lienholder to file a statement with
the county clerk within sixty (60) days after last
1261
shall remain in force in aid of the general
statutes of Oklahoma.... 12 O.S. 2011 §2.
performing service on the subject personal
property to perfect its claim of lien. McCormack
v. Air Center, Inc., 1977 OK 192, ¶16, 571 P.2d
835, 838. After filing with the FAA, no further
recordation is required for a lienholder to perfect its claim of lien on an aircraft. 49 U.S.C.A.
§44108(b); McCormack, ¶16, 571 P.2d at 838
(“The Trial Court erred in holding [lien claimant] was required to file at the office of the
county clerk. . . within the statutory period in
order to perfect its claim of lien.”). The lien is
valid from the date of filing. 49 U.S.C.A.
§44108(b).
(Emphasis added.) At the time Williamson was
decided, §91A had not been enacted and §91
merely restated the right existing under the
common law. Section 91 applied to possessory
liens for all types of personal property but did
not contain any of the current notice requirements or foreclosure sale procedures. Compare
R.L. 1910 §3852 and 42 O.S. 2011 §91.
¶12 Here, both parties recorded their respective interests with the FAA. Harley Davidson
filed its purchase money security interest on
June 21, 2006, and IJS filed its lien with the FAA
on March 23, 2009. Both liens being perfected
by filing with the FAA, we must look to Oklahoma law to determine the priority of IJS’s lien
relative to Harley Davidson’s purchase money
security interest and whether the statute of
limitations had lapsed on such lien by the time
IJS sought to foreclose it.
Lien for services rendered on article. Every
person who, while lawfully in possession
of an article of personal property, renders
any service to the owner thereof by labor or
skill employed for the protection, improvement, safe-keeping or carriage thereof, has a
special lien thereon, dependent on possession, for the compensation, if any, which is
due to him from the owner for such service.
POSSESSORY LIENS
¶13 IJS, citing Williamson v. Winningham, 1947
OK 231, 186 P.2d 644, maintains it has a common law possessory lien and not a statutory
lien under either 42 O.S. §91 or 42 O.S. §91A.4
All of the parties to this appeal cite Williamson
to support their respective positions. This case
from 1947 discusses the common law and
Oklahoma’s statutory lien scheme as it existed
at the time. Basically, 42 O.S. §91 “reiterates” an
artisan’s right to a possessory lien arising
under common law. Williamson at ¶25, 186 P.2d
at 650. With such common law liens, “[i]t is the
right of a person to retain that which is in his
possession, belonging to another, until certain
demands against such other person are satisfied.” Id. at ¶23, 186 P.2d at 650. “An artisan’s
lien for materials and labor expended in betterment of personal property, existing under the
common law, where in the eyes of the law, ...
the artisan has right of possession, may constitute a lien, limited by statute.” Id. at ¶28, 186 P.2d
at 650 (emphasis added).
¶14 Williamson recognized statutory enactments may abrogate the common law. This
concept is also codified in our statutes. Section
2 of Title 12 provides in relevant part:
The common law, as modified by constitutional and statutory law, judicial decisions
and the condition and wants of the people,
1262
¶15 As originally enacted and as it read at the
time of the Williamson decision, the text of R.L.
1910 §3852 read as follows:
This statute was first enacted in 1910 and
remained substantially the same until a major
overhaul in 2005.5 2005 Okla. Sess. Laws, ch.
213, §4, ch. 477, §1 (codified at 42 O.S. Rev.
Supp. 2005, §91) (effective Nov. 1, 2005). Prior
to 2005, §91 covered possessory liens for all
types of personal property. The 2005 changes to
Title 42 split off vehicles titled by the Oklahoma Tax Commission (“OTC”) or a federally
recognized Indian tribe in the State of Oklahoma. 2005 Okla. Sess. Laws, ch. 213, §4, ch. 477,
§1 (codified at 42 O.S. Rev. Supp. 2005, §91)
(effective Nov. 1, 2005). Those certificate of title
vehicles were covered under §91 while all
other types of personal property, except for
farm equipment as defined in §91.2, were covered under §91A. Id. at ch. 213, §§1-2, ch. 477,
§§1-2 (codified at 42 O.S. Rev. Supp. 2005, §§91,
91A, and 91.2) (effective Nov. 1, 2005). The 2005
changes also included procedures for foreclosing §91A property. Id. at ch. 477, §2 (codified at
42 O.S. Rev. Supp. 2005, §91A) (effective Nov. 1,
2005). Additional changes in 2006 rectified
some internal inconsistencies in Title 42 and
further refined foreclosure procedures for §91A
personal property. 2006 Okla. Sess. Laws, ch.
247, §2 (codified at 42 O.S. Supp. 2006, §91A)
(effective Nov. 1, 2006).
¶16 Since Williamson was decided, the statutes covering possessory liens on personal
property have changed significantly.6 Currently, §91A covers possessory liens for all types of
Vol. 85 — No. 15 — 5/24/2014
personal property which do not have a certificate of title issued by the OTC or a federally
recognized Indian tribe in the State of Oklahoma.7 42 O.S. 2011 §91A(A)(1)(a) - (b). It is a
catch-all provision intended to govern possessory liens on items of personal property which
do not fall under either §§91 or 91.2. As
“vehicle[s]” which “ha[ve] a certificate of title
that is not issued by the Oklahoma Tax Commission or by a federally recognized Indian tribe in
the State of Oklahoma,” titled aircraft fall under
the purview of §91A. Thus, any lienholder, like
IJS, who claims a possessory lien on aircraft for
“furnishing storage, rental space, material, labor
or skill for the protection, improvement, safekeeping, towing, right to occupy space, storage
or carriage thereof” does so pursuant to 42 O.S.
2011 §91A.8 Common law possessory liens on
aircraft have been subsumed into §91A along
with the additional requirement that such liens
be filed with the FAA rather than with the county clerk. 49 U.S.C.A. §44108(b); McCormack, ¶16,
571 P.2d at 838.
statutory time to foreclose its perfected §91A
possessory lien on the subject aircraft.
¶17 Presently, for items of personal property
covered by §91A, there is no deadline for providing notice to the owner or secured creditor
(if any) of the existence of the possessory lien,
42 O.S. 2011 §91A,9 except for the requirement
that a lien statement be filed with the county
clerk within sixty (60) days of the work being
performed pursuant to 42 O.S. 2011 §98.10
Notice need only be given when the lienholder
wishes to foreclose its lien by a sale as provided
in subsection (A)(3). Section 91A(A)(3) sets
forth procedures for a non-judicial foreclosure
sale of the subject personal property.
Any person who, while lawfully in possession
of an article of personal property to which
this section applies, renders any service to
the owner thereof by furnishing storage,
rental space, material, labor or skill for the
protection, improvement, safekeeping,
towing, right to occupy space, storage or
carriage thereof, has a special lien thereon,
dependent on possession, for compensation, if
any, which is due to such person from
owner for such service.
¶18 Here, IJS maintained possession of the
subject aircraft from the time it accepted delivery from Blue Sky11 but did not seek to foreclose
its lien by the procedures set forth in §91A(A)(3).
Rather, Blue Sky brought a replevin action
against IJS for the recovery of the aircraft. In its
answer and counterclaim, IJS asserted it was
entitled to payment from Blue Sky for the cost of
labor and parts used in the repair of the aircraft,
plus storage fees, interest, and attorneys fees
and sought the permission of the trial court to
“foreclose its lien and sell the aircraft as allowed
by Oklahoma law.”12 Before any sale with the
attendant notice requirements could be held, the
trial court granted summary judgment in favor
of Harley Davidson finding the statute of limitations had lapsed for IJS to foreclose its lien. Thus,
we must examine whether IJS was within the
Vol. 85 — No. 15 — 5/24/2014
LIMITATION PERIOD FOR ENFORCING
§91A LIENS
¶19 We disagree with the trial court’s determination that IJS must have enforced its lien
within sixty days of filing with the FAA under
42 O.S. 2011 §91A(B)(3). Instead, we find that
provision applies only when the lienholder has
lost possession as described in subsections (B)
(1) and (B)(2). Here, IJS maintained possession
of the aircraft until the court approved sale. Its
lien retained the same characteristics when
attached to the sale proceeds. The only other
time limitations provided in §91A concern the
notice of the sale, 42 O.S. §91A(A)(4)13 and
mandate that foreclosure proceedings “shall
not be commenced until thirty (30) days after
said lien has accrued,” 42 O.S. §91A(A)(6). By
the very terms of §91A, the lien continues so
long as the lienholder retains possession. Section 91A(A)(2) provides in pertinent part:
(Emphasis added.) Thus, we must look to other
portions of Title 42 for the statute of limitation
for §91A liens.
¶20 Both Harley Davidson and Blue Sky
argue 42 O.S. 2011 §§95 and 100 apply. Section
95 provides “proceedings under this act shall
be commenced within eight (8) months after the
work is done.” We note that the statute itself has
a footnote after the word “act” which notes “act”
refers to Title 42, §92 et seq. By the terms of §95,
its limitation period only applies to the lien
described in §92. This is further supported by
the legislative history of §92 et seq. Sections 92-96
of Title 42 were all part of House Bill No. 11714
passed by the Second Legislature on March 20,
1911. 1910-11 Okla. Sess. Laws, ch. 114, p.254,
§§1-5 (now codified at 42 O.S. 2011 §§92-96).
Thus, the eight (8) month limitation contained in
§95 applies to §92-96 and not §91A.
¶21 Section 100 provides as follows:
1263
Said lien may be foreclosed by the sale of
the property so covered any time within
twelve (12) months in the same manner
provided by for law for the foreclosure of
chattel mortgages. 42 O.S. 2011 §100.
“Said lien” to which §100 refers is the lien provided for in §97. Like §§92-96, §§97-102 were
passed as a part of the same bill; specifically,
House Bill No. 65415 passed by the Sixth Legislature on March 27, 1917. 1917 Okla. Sess.
Laws, ch. 187, p.350, §§1-8 (now codified at 42
O.S. 2011 §97-102). Each section within the bill
became a different section of Title 42.16 Section
1 of House Bill No. 654, which describes the
lien, became 42 O.S. 2011 §97, and §4, which
provides for the twelve month limitation on
the foreclosure sale, became 42 O.S. 2011 §100.17
Because the limitations period provided in §95
or §100 does not apply to the lien provided for
in §91A, we must look to other portions of Title
42 for the limitations period. The rest of the
sections in Chapter 2 of Title 42, specifically
§§111 through 121 and §§131 through 132, deal
with specific subject matter. Sections 111
through 121 involve liens claimed by threshers
and combiners, and §§131 through 132 deal
with blacksmiths, wheelwrights, and horseshoers. None of these sections apply to §91A
possessory liens. We instead turn to Chapter 1
of Title 42 - General Provisions.
¶22 Chapter 1 of Title 42 provides that a lien
is created “by contract of the parties; or by
operation of law.” 42 O.S. 2011 §6. Here, IJS’s
possessory lien pursuant to 42 O.S. 2011 §91A
arose by operation of law as the record does
not show any agreement, express or implied,
between the parties to create a lien on the aircraft. See Phoenix Mutual Life Ins. Co. v. Harden,
1979 OK 93, ¶6, 596 P.2d 888, 890 (“Intention to
create a lien on property must clearly appear
from the language of some instrument and
attendant circumstances.”). Title 42 O.S. 2011
§7 further provides “[n]o lien arises by mere
operation of law until the time at which the act
to be secured thereby ought to be performed.”
Title 42 O.S. 2011 §23 provides in pertinent part
“[a] lien is extinguished by the mere lapse of
the time within which . . . an action can be
brought on the principal obligation.” When
read together with the continued possession
requirements of §91A and in the context of the
present case, those statutes establish IJS’s lien
arose at the time Blue Sky was obligated to pay
for the repairs. IJS can enforce such lien so long
as it retains possession of the aircraft and the
1264
statute of limitations on the underlying debt
has not lapsed.
¶23 IJS retained possession of the aircraft to
secure payment for the repairs it performed
with the alleged consent of Blue Sky. The parties agree the aircraft was delivered to IJS on or
about December 5, 2008. IJS maintains it provided its final invoice to Blue Sky demanding
payment on January 26, 2009, and the record
shows IJS filed its lien with the FAA on March
23, 2009. Oklahoma law is clear that IJS’s lien
was not perfected until it filed the lien with the
FAA, see paragraphs 9-11, supra, but that is not
when IJS’s right to payment arose. Rather, IJS’s
right to payment arose when it completed
repairs as consented to by Blue Sky, which
appears to be sometime in January 2009.18 Even
if IJS became entitled to payment as early as
December 5, 2008 when the aircraft was first
delivered to IJS, the statute of limitations had
not run on Blue Sky’s underlying obligation to
pay for repairs rendered.
¶24 The principal obligation underlying IJS’s
claim of lien is the repair work IJS performed
on the aircraft which was done, according to
IJS, either by verbal or written agreement. We
agree with IJS that the statute of limitation for
breach of an agreement is either three years or
five years depending on whether the agreement is verbal or written. 12 O.S. 2011 §95(A)
(1) and (2). Because IJS’s lien potentially arose,
at the earliest, when it accepted delivery on
December 5, 2008, its lien lapsed, at the earliest,
within three years of that date, or December 5,
2011. All parties agree IJS first sought to foreclose its lien by the filing of its counterclaim on
May 10, 2010, well within the earliest possible
limitation period.
PRIORITY OF IJS’s §91A LIEN
¶25 Unlike §91, §91A does not discuss the
priority of such possessory liens.19 Additionally, for the same reasons as discussed in paragraphs 20 and 21, supra, neither §§96 nor 99
discussing the priority of each subject lien,
apply to §91A. Rather, the Uniform Commercial Code (“UCC”), 12A O.S. 2011 §1-101 et seq.
provides for priority of such possessory liens.
Specifically, 12A O.S. 2011 §1-9-333 provides
“[a] possessory lien on goods has priority over
a security interest in the goods unless the lien
is created by a statute that expressly provides
otherwise.” Here, the statute creating the lien,
42 O.S. 2011 §91A, does not provide otherwise.
Thus, UCC §1-9-333 governs, and IJS’s §91A
Vol. 85 — No. 15 — 5/24/2014
possessory lien, if valid, is superior to Harley
Davidson’s security interest and the trial court’s
grant of summary judgment must be reversed.
VALIDITY OF IJS’s CLAIM OF LIEN
¶26 Because the claims between Blue Sky
and IJS remain outstanding, we cannot determine whether IJS had a valid lien such that the
claims between IJS and Harley Davidson can
be resolved. Pursuant to the terms of 42 O.S.
2011 §23, “[n]o lien arises by mere operation of
law until the time at which the act to be secured
thereby ought to be performed.” Additionally,
§91A provides such possessory liens arise “for
the compensation, if any, which is due to such
person from the owner for such service.” 42 O.S.
2011 §91A(2) (emphasis added). Here, not only
is there a question about when the obligation to
pay arose (when IJS accepted delivery, when
the work on the aircraft was completed, or
when the final invoice was delivered to Blue
Sky), but there also remains a question of fact
as to whether Blue Sky was ever obligated to
pay IJS for the repairs. Blue Sky maintains it
delivered the aircraft to IJS for the limited purpose of inspection while IJS maintains it was
authorized to make repairs as consented to by
Blue Sky and as mandated by FAA maintenance requirements. If Blue Sky did not give
permission to IJS for the repairs, no obligation
to pay ever arose, and thus no lien exists which
can be prior to Harley Davidson’s security
interest. On the other hand, if Blue Sky consented to the repairs performed by IJS, Blue
Sky became obligated to pay for such repairs.
Thus IJS’s lien would be valid and superior to
Harley Davidson’s lien and IJS was within the
statutory time for foreclosing such lien. Additionally, we note there appears to be some
question as to whether the repair work undertaken by IJS was rendered to the owner of the
aircraft. The deposition of Dennis Braner indicated uncertainty may exist as to whether IJS
performed the repairs for the owner of the aircraft or for someone else who may or may not
have been an authorized agent.
¶27 Because there remains a question of fact
as to whether Blue Sky consented to the repairs
performed by IJS creating an obligation to pay
giving rise to IJS’s lien, the decision of the trial
court is REVERSED and REMANDED for further proceedings consistent with this opinion.
BELL, P.J., and GOREE, J., concur.
Vol. 85 — No. 15 — 5/24/2014
1. Blue Sky’s amended petition also included claims for conversion, fraud, and slander of title.
2. The minute order granting summary judgment in favor of Harley Davidson was entered on February 9, 2012. IJS filed its motion for
new trial/reconsideration on February 17, 2012. IJS attached the journal entry entered March 6, 2012 to its petition in error as the underlying judgment of which it seeks review. Because this March 6th order
specifically referenced the findings and conclusions contained in the
minute order, we looked to the minute order for the trial court’s reasoning behind its ruling in favor of Harley Davidson. IJS also attached
the trial court’s order entered April 11, 2012 denying its motion for new
trial/reconsideration to its amended petition in error. Although IJS
arguably filed its motion for new trial/reconsideration on February 17,
2012 before the trial court actually granted summary judgment in
favor of Harley Davidson on March 6, 2012, there is no question that
this matter is properly before this Court on appeal.
3. As noted by Harley Davidson, although summary proceedings
are inconsistent with the request for a “trial,” the request for a new trial
upon reconsideration of the prior summary proceeding is allowable
under the statutory scheme. Bank of Okla. N.A. v. Red Arrow Marina
Sales & Serv., 2009 OK 77, 224 P.3d 685.
4. IJS argues, in the alternative, that if one of these statutes governs
its lien, it is §91A and not §91.
5. For a discussion of the 2005 and 2006 changes to 42 O.S. §§91 et
seq., see Charles Cheatham, Oklahoma Legislation: Financial Exploitation;
Security Freezes; and Liens on Certificate of Title Goods, 61 Consumer Fin.
L.Q. Rep. 426, 438-44 (2007).
6. In addition to the changes to 42 O.S. §91 et seq., substantial
changes were made to the laws governing liens on items of personal
property stored in self storage facilities, The Self-Storage Facility Lien
Act, 42 O.S. §§191-200, and to the laws governing liens on manufactured homes, 42 O.S. §180.
7. The Self-Storage Facility Lien Act makes clear that should both
that Act and §91A apply to the personal property at issue, the provisions of The Self-Storage Facility Lien Act, 42 O.S. §191 et seq. will
apply. Because this matter does not involve a self-storage facility, the
provisions of §91A apply.
8. We reject any argument that IJS had a laborer’s lien as provided
in 42 O.S. 2011 §§92 or 97. It is an axiomatic rule of statutory construction that whenever a general statute and a specific statute conflict, the
terms of the specific statute control. Duncan v. City of Nichols Hills, 1996
OK 16, ¶27, 913 P.2d 1303, 1310. There is a specific mandate that possessory liens on vehicles which have a certificate of title that is not
issued by the OTC or a federally recognized Indian tribe in the State of
Oklahoma fall under the purview of §91A. Additionally, unlike the
§91A lien claimed by IJS, liens claimed pursuant to §§92 or 97 are not
dependent on the lienholder’s continued possession of the subject
personal property.
9. 42 O.S. §91A was last amended in 2008. 2008 Okla. Sess. Laws,
ch. 98, §2 (codified at 42 O.S. Supp. 2009 §91A (effective July 1, 2008)).
The text of the statute remained the same from the time the repairs
were made to the aircraft to the present day. For ease of reference, citation will be made to the 2011 Oklahoma Statutes when referring to
§91A as it applies to this case.
10. As discussed in paragraphs 10-12, supra, filing a lien statement
with the county clerk is not required to perfect a possessory lien on
aircraft.
11. IJS maintained actual possession of the subject aircraft until the
time of the court approved sale. Both IJS and Harley Davidson released
their liens on the aircraft and attached them to the proceeds of the sale.
By order of the trial court, the liens retained the same characteristics
when attached to the sale proceeds as they would have had if still
attached to the aircraft.
12. We note that court permission is not required under §91A to
foreclose a lien by sale. However, in this case, the parties were already
engaged in litigation when IJS sought to foreclose its lien.
13. 42 O.S. §91A(A)(4) provides that the sale notice shall be posted
“at least ten (10) days before the time . . . specified for the sale.” Here,
no such notice was yet posted.
14. “An Act creating a lien for wages for laborers and employees,
and providing the procedure to enforce same.” 1910-11 Okla. Sess.
Laws, ch. 114, p. 254, §§1-5.
15. “An Act providing for a lien on personal property for labor,
money, material or supplies in the producing of, altering or repairing
of said personal property, repealing §3858, Revised Laws of Oklahoma,
1910, and providing a procedure for foreclosing lien, and declaring an
emergency.” 1917 Okla. Sess. Laws, ch. 187, p.350, §§1-8.
16. We note that 42 O.S. §98 was amended in 1992 to apply to all of
Chapter 2 of Title 42, including §91A. 1992 Okla. Sess. Laws, ch. 310, §2
(codified at 42 O.S.Supp. 1992, §98) (effective Sept. 1, 1992). However,
as discussed in paragraphs 9-11, supra, the only recordation require-
1265
ments necessary for the perfection of a lien on aircraft is that such lien
be filed with the FAA. The additional recordation requirements of §98
are supplanted by federal law.
17. The Historical and Statutory Notes (“notes”) of 42 O.S. 2011
§100 state §100 was derived from §3 of 1917 Okla. Sess. Laws, ch. 187,
p. 351 (House Bill No. 654), while the notes to 42 O.S. 2011 §99 (Priority of mortgage liens) state §99 was derived from §4 of 1917 Okla. Sess.
Laws, ch. 187, p. 351 (House Bill No. 654). We suspect that this is a
scrivener’s error as §3 of the session laws is identical to 42 O.S. 2011 §99
and §4 of the session laws is identical to 42 O.S. 2011 §100.
18. Portions of the deposition transcript of Dennis Braner attached
to IJS’s response to Blue Sky’s motion for summary judgment indicate
IJS requested a deposit of $130,000 in December 2008 to start repairs on
the aircraft. According to Mr. Braner, IJS agreed to proceed with repairs
without the deposit, and Blue Sky agreed to pay the deposit by January
7, 2009. No deposit was ever received by IJS. Mr. Braner stated the
work on the aircraft was completed January 20, 2009 and the final
invoice was completed January 26, 2009.
19. Title 42 O.S. 2011 §91 subordinates the possessory lien provided
for in that statute to perfected security interests unless certain notice
and consent requirements are met.
2014 OK CIV APP 40
INDEPENDENT SCHOOL DISTRICT NO. 5
OF TULSA COUNTY, OKLAHOMA,
Plaintiff/Appellee, vs. PATRICK L. TAYLOR
and MARSHALETA TAYLOR, husband and
wife, Defendants/Appellants, and
COMMUNICATION FEDERAL CREDIT
UNION, BOARD OF COUNTY
COMMISSIONERS OF TULSA COUNTY,
and DENNIS J. SEMLER, as Treasurer of
Tulsa County, State of Oklahoma,
Defendants.
Case No. 110,709. November 27, 2013
HONORABLE MARY F. FITZGERALD,
TRIAL JUDGE
REVERSED WITH DIRECTIONS
Roger K. Eldredge, LADNER LITTLE &
ELDREDGE, Tulsa, Oklahoma, for Plaintiff/
Appellee
Robert J. Nichols, Brian A. Curthoys, NICHOLS & CURTHOYS, Tulsa, Oklahoma, for
Defendants/Appellants
DEBORAH B. BARNES, VICE-CHIEF JUDGE:
¶1 This appeal arises from a condemnation
case that proceeded to a jury trial. Defendants/
Appellants Patrick L. and Marshaleta Taylor,
husband and wife (Landowners), appeal the
trial court’s Order granting the motion for new
trial of Plaintiff/Appellee Independent School
District No. 5 of Tulsa County, Oklahoma (Condemnor). The primary question presented on
appeal is whether the trial court erred in granting Condemnor’s motion for new trial because
of an alleged error in admitting certain evi1266
dence at trial that was neither presented to nor
considered by the commissioners. For the reasons set forth below, we answer this question
in the affirmative, and reverse the Order with
directions to the trial court to reinstate the
judgment memorializing the jury’s verdict.
BACKGROUND
¶2 In September 2007, Condemnor filed a
petition to condemn an approximately 12-acre
tract of property owned by Landowners (the
Property) for public school purposes.1 The trial
court appointed commissioners and instructed
them to inspect the Property to determine the
just compensation for the taking.2 The commissioners were also instructed as follows:
When examining [the Property], it is
proper for you to have with you [Condemnor], [Landowners], the parties’ counsel
and/or any of the parties’ agents and/or
employees in order to give them an opportunity to explain the boundaries and other
features of the [P]roperty that they desire to
tell you about. The parties may also provide
you with written materials regarding the [P]
roperty and their views as to its value.3
Nevertheless, the parties agree that neither
Landowners nor Condemnor submitted any
specific information to the commissioners
regarding potential billboard lease income that
might increase the value of the Property.
¶3 In their report filed on May 28, 2008, the
commissioners determined the amount of just
compensation to be $1,402,850. Within sixty
days, Landowners filed a demand for a jury
trial.
¶4 Prior to trial, in September 2008, Landowners filed a motion requesting the trial court
to direct the commissioners to file a supplemental report to allow Landowners to present
their billboard lease damage claim to the commissioners.4 Condemnor objected to this motion
arguing, among other things, that it was not
timely filed within thirty days of the May 2008
commissioners’ report, and the trial court
denied Landowners’ motion. Condemnor then
filed a motion in limine to prohibit Landowners from offering any evidence or argument at
trial related to billboard lease damages. Condemnor’s motion in limine was denied by the
trial court.
¶5 Among other evidence presented at trial
regarding the just compensation for the taking
Vol. 85 — No. 15 — 5/24/2014
of the Property, Don Wilson, a real estate
appraiser, testified on behalf of Landowners
that the value of the Property is $2,645,000,
plus an additional billboard lease value of
$1,000,000, for a total value of $3,645,000.5 The
jury returned a verdict of $3,100,000, and the
judgment memorializing the jury’s verdict was
filed in July 2011.6
¶6 Condemnor filed a motion for new trial,
and a hearing was held in March 2012. At the
hearing, counsel for Condemnor argued “the
billboard-related damages should have never
been presented to the jury because those damages were not presented to the [c]ommissioners.”7 He asserted not only that the billboard-related damages were never presented
to the commissioners by the parties, but “that
the [c]ommissioners never considered . . . billboard-related damages when valuing the [P]
roperty.”8 In support, he cited to the affidavit of
Larry Kelley, one of the three commissioners
appointed by the court, wherein Kelley states,
among other things, that the commissioners
“did not consider to the best of my recollection
the value of any potential billboard lease rights
when determining the fair market value of the
[P]roperty . . . .”9
¶7 The trial court granted the Condemnor’s
motion for new trial in the Order filed on April
20, 2012. The Order states as follows:
1. [Landowners] never presented anything to the [c]ommissioners related to
their damage claim for the loss of billboard
lease rentals.
2. The [c]ommissioners did not consider
the value of any potential billboard lease
rights when determining the fair market
value of the [P]roperty at issue in this case.
3. After the Commissioners’ Report was
filed, the Court denied . . . Landowners’
motion asking the Court to direct the [c]
ommissioners to file a Supplemental Commissioners’ Report in order to allow . . .
Landowners to present their billboard
damage claim to the [c]ommissioners and
have the [c]ommissioners consider that
claim when valuing the [P]roperty that is
the subject of this condemnation action.
4. The Commissioners’ Report as originally filed was confirmed by the Court.
5. However, . . . Landowners were later
permitted to present evidence and arguVol. 85 — No. 15 — 5/24/2014
ments to the jury in the trial of this matter
related to their damage claim for the loss of
billboard lease rentals. Such evidence and
arguments were submitted to the jury after
the Court denied [Condemnor’s] motion in
limine to exclude such evidence and arguments, and after the Court denied [Condemnor’s] continuous objections to such
evidence and arguments.
6. The Court erred in permitting the jury
to consider evidence and arguments related to . . . Landowners’ claimed billboard
damages because that element of damages
was never presented to or considered by
the [c]ommissioners.
7. The Court’s error was not harmless
given that . . . Landowners sought to be
awarded $1,000,000 in connection with
their billboard rental damage claim, and
the jury’s $3,100,000 verdict was clearly
influenced by . . . Landowners’ evidence
and arguments related to their billboard
damage claim.
8. [Condemnor] is entitled to a new trial
because of this error.
9. The Court does not have jurisdiction
to direct the [c]ommissioners to file a Supplemental Commissioners’ Report to now
consider . . . Landowners’ billboard damage claim.
10. Upon re-trial, . . . Landowners shall
be barred from presenting any evidence,
argument and/or other matter related to
their claimed billboard damages.
¶8 From the Order granting Condemnor’s
motion for new trial, Landowners appeal.
STANDARD OF REVIEW
¶9 A trial court is vested with wide discretion
on whether to grant a new trial. Propst v. Alexander, 1995 OK 57, ¶ 8, 898 P.2d 141, 144. The
district court’s decision on a motion for new
trial is reviewed for an abuse of discretion. Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 7, 107 P.3d
595, 600. “An abuse of discretion occurs when
a decision is based on an erroneous conclusion
of law or where there is no rational basis in
evidence for the ruling.” Spencer v. Okla. Gas &
Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890, 895
(footnote and emphasis omitted). “Because a
trial court’s discretion is broad [in ruling on a
motion for new trial,] its ruling will not be disturbed by the reviewing tribunal in the absence
1267
of a clear showing of a manifest error or abuse
of discretion with respect to a pure, simple and
unmixed material question of law.” Capshaw, ¶
7, 107 P.3d at 600 (footnote omitted). If a “new
trial is granted by the same judge who tried the
case, a much stronger showing of error or
abuse of discretion is required in order for this
Court to reverse than if a party was appealing
a refusal to grant a new trial.” Austin v. Cockings, 1994 OK 29, ¶ 10, 871 P.2d 33, 34 (citations
omitted).
¶10 An issue of statutory construction is a
question of law, subject to de novo review and
over which appellate courts exercise plenary,
independent and non-deferential authority.
State ex rel. Dep’t of Transp. v. Minor, 2009 OK
CIV APP 83, ¶ 7, 221 P.3d 141, 144. See also
Stump v. Cheek, 2007 OK 97, ¶ 9, 179 P.3d 606,
609. The goal of statutory construction is to follow the intent of the legislature. Hess v. Excise
Bd. of McCurtain Cnty., 1985 OK 28, ¶ 6, 698
P.2d 930, 932.
¶11 Regarding a trial court’s determination
to admit and exclude evidence, the Oklahoma
Supreme Court has stated:
Under the Oklahoma Evidence Code, the
trial court stands as a gatekeeper, admitting or excluding evidence based on the
judge’s assessment of its relevance and reliability. All relevant evidence is admissible,
unless the trial court determines that its
probative value is substantially outweighed
by the danger of unfair prejudice, confusion of issues, misleading the jury, undue
delay, needless presentation of cumulative
evidence, or unfair and harmful surprise. A
trial court has discretion in deciding whether proffered evidence is relevant and, if so,
whether it should be admitted, and a judgment will not be reversed based on a trial
judge’s ruling to admit or exclude evidence
absent a clear abuse of discretion.
Myers v. Mo. Pac. R.R. Co., 2002 OK 60, ¶ 36, 52
P.3d 1014, 1033 (footnotes and internal quotation marks omitted). An abuse of discretion
occurs when a trial court bases its decision on
an erroneous conclusion of law, or where there
is no rational basis in the evidence for the ruling. Christian v. Gray, 2003 OK 10, ¶ 43, 65 P.3d
591, 608.10
ANALYSIS
¶12 The fundamental issue presented is
whether, in this condemnation proceeding, the
1268
trial court erred by admitting evidence at the
jury trial that was neither presented to, nor
considered by, the commissioners.
¶13 We must first address Condemnor’s
argument, however, that Landowners have
raised arguments and authorities on appeal
pertinent to this issue that they did not raise
before the trial court. The Oklahoma Supreme
Court has consistently invoked 12 O.S.2011 §
991(b) to restrict the appellate issues to those
raised in a motion for new trial. See Slagell v.
Slagell, 2000 OK 5, ¶¶ 7-8, 995 P.2d 1141, 1142;
Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, ¶
6, 681 P.2d 757, 759. See also Bowles v. Goss, 2013
OK CIV APP 76, ¶ 9, 309 P.3d 150, 155. Section
991(b) provides, “If a motion for a new trial be
filed and a new trial be denied, the movant may
not, on the appeal, raise allegations of error
that were available to him at the time of the filing of his motion for a new trial but were not
therein asserted.” (Emphasis added.) Of course,
Condemnor, not Landowners, filed the motion
for new trial in this case, and, therefore, Landowners are not limited in the appeal to the
issues raised in Condemnor’s motion. Furthermore, the fundamental issue on appeal was
clearly raised before the trial court.11
I. Statutory Procedure for Condemnation
Proceedings
¶14 Condemnation is a “special proceeding”
for which “the legislature has passed special
statutes for the just and orderly functioning of
the court when hearing these special proceedings. The procedural requirements set forth for
condemnation cases in the statutes are reasonable and must be complied with.” State ex rel.
Dep’t of Transp. v. Perdue, 2008 OK 103, ¶ 9, 204
P.3d at 1282 (footnotes omitted). See also Bd. of
Cnty. Comm’rs of Creek Cnty. v. Casteel, 1974 OK
31, ¶ 15, 522 P.2d 608, 610 (“Condemnation
proceedings are special proceedings and must
be carried out in accordance with legislatively prescribed procedure.”) (emphasis added).
¶15 The statutorily prescribed procedure is
as follows:
Condemnation proceedings are begun by
one party filing a petition in district court
to appoint a commission made up of three
disinterested landowners to determine the
amount of just compensation. The commission is to inspect the property, assess the
just compensation due the landowner, and
file a report of its findings with the clerk of
the district court. When the condemnor has
Vol. 85 — No. 15 — 5/24/2014
paid the amount of just compensation set
by the commission into the court, the condemnor may enter the property. The date
of the condemnor’s payment into the court
is deemed the date of taking.
If either party objects to the findings of
the commission, the party may file an
exception to the report of the commissioners or a request for jury trial. An exception
to the report of the commissioners must be
filed within thirty days after the filing of
the commissioners’ report, and the court
must confirm or reject the report, or if good
cause is shown, order a new report from
the commission. A request for jury trial
must be filed within sixty days after the filing of the commissioners’ report, and the
amount of just compensation is then set by
a jury in a trial conducted in the same manner as other civil actions. Only a demand
for jury trial will raise the issue of damages,
and only an objection to the report of the
commissioners will raise the issue of the
necessity of the taking.
Perdue, ¶¶ 9-10, 204 P.3d at 1282-84 (footnotes
omitted).12
¶16 There is nothing in the statutory procedure preventing evidence relevant to the determination of just compensation from being presented at the jury trial just because it was neither presented to nor considered by the commissioners. The statutory procedure does not
require the parties or, in particular, the landowner, to provide the commissioners with
information, nor does it limit the jury trial to a
review of the information provided to and/or
considered by the commissioners. Rather,
regarding the preparation of the commissioners’ report, the statutory procedure places the
duty on the commissioners to “inspect said real
property and consider the injury which said
owner may sustain by reason of the condemnation and [the commissioners] shall assess the
just compensation to which said owner is entitled . . . .” 66 O.S.2011 § 53. “The commissioners
inspect the property and file a report which
includes their assessment of the amount of just
compensation due the landowner for the property taken.” State ex rel. Dep’t of Transp. v. Cole,
2009 OK 40, ¶ 11, 236 P.3d 49, 51-52 (emphasis
added, citations omitted).13 Either party may
then file an exception to the commissioners’
report within thirty days, or a demand for jury
trial within sixty days of the commissioners’
report being filed. Id. ¶ 12, 236 P.3d at 52.
Vol. 85 — No. 15 — 5/24/2014
¶17 In reaching our conclusion that the jury
trial is not limited to the information that was
provided to the commissioners by the parties,
and/or to the information that was considered
by the commissioners, we are guided by the
truism that “[t]he taking of property accomplished by eminent domain is regarded as
being a forced sale. The owner is forced into
the matter.” Graham v. City of Duncan, 1960 OK
149, ¶ 21, 354 P.2d 458, 462. Moreover, we are
guided by the principle that “eminent domain
provisions and statutes must be strictly construed in the landowner’s favor and against
the condemnor,” and “all presumptions must
favor the landowner, not the condemnor.” Cole,
¶ 9, 236 P.3d at 51 (citation omitted). We are
also “mindful of the critical importance of the
protection of individual private property rights
as recognized by the framers of both the U.S.
Constitution and the Oklahoma Constitution.”
Bd. of Cnty. Comm’rs of Muskogee Cnty. v. Lowery, 2006 OK 31, ¶ 11, 136 P.3d 639, 647.
¶18 Even more important to our analysis, “it
is the Oklahoma Legislature which determines
the condemnation procedures for effectuating
the right to a jury trial,” Cole, ¶ 10, 236 P.3d at
51, and, as stated above, condemnation proceedings “must be carried out in accordance
with legislatively prescribed procedure,”
Casteel, ¶ 15, 522 P.2d at 610. However, a rule
limiting the jury trial to information provided
to and/or considered by the commissioners
does not exist in the applicable statutory procedure, nor is such a rule consistent with the
controlling constitutional and statutory provisions. That is, “the Oklahoma Constitution
provides a landowner with the absolute right
to a jury trial on the question of damages in a
condemnation proceeding,” Cole, ¶ 10, 236 P.3d
at 51, and the statutes provide that if a party
timely files a demand for a jury trial, “the
amount of damages shall be assessed by a jury,
and the trial shall be conducted and judgment
entered in the same manner as civil actions in
the district court,” 66 O.S.2011 § 55.14 Neither
the applicable constitutional nor statutory law
limits the evidence a landowner may present to
a jury.
¶19 Finally, “where a demand is made for a
jury trial in a condemnation proceeding, the
award made by the commissioners is not competent evidence to go before the jury,” Okla.
Tpk. Auth. v. Daniel, 1965 OK 7, ¶ 5, 398 P.2d
515, 516-17 (citation omitted), and once judgment is entered, the jury’s verdict supersedes
1269
the commissioners’ award, and it is “of no
moment” whether the commissioners were
properly instructed, see Owens v. Okla. Tpk.
Auth., 1954 OK 345, ¶ 10, 283 P.2d 827, 831
(“Since the Commissioners’ award was superseded by the jury verdict, it is of no moment
whether the court erred in appointing and
instructing the new commissioners or not.”);
State ex rel. Dept. of Transp. v. Mehta, 2008 OK
CIV APP 25, ¶ 24, 180 P.3d 1214, 1220 (“[The
Oklahoma Department of Transportation’s]
exception challenging the apportioning of the
[commissioners’] award became immaterial
and moot upon the parties’ demands for jury
trial. The Commissioners’ award will no longer
be relevant when superseded by the jury’s
verdict.”).15
¶20 Condemnor argues it is critical the commissioners consider the same damage elements
as the jury because, otherwise, the ten-percent
rule — that if a jury’s award exceeds the commissioners’ award by at least ten percent, the
landowner is entitled to reasonable attorney,
appraisal, engineering, and expert witness fees
actually incurred — is unfair. However, the
applicable statute grants the trial court discretion to award these fees, and such an award is
not mandatory:
[I]f the award of the jury exceeds the award
of the court appointed commissioners by at
least ten percent (10%), then the owner of
any right, title or interest in the property
involved may be paid such sum as in the
opinion of the court will reimburse such
owner for his reasonable attorney, appraisal, engineering, and expert witness fees
actually incurred because of the condemnation proceeding.
66 O.S.2011 § 55(D) (emphasis added).16 Consequently, the trial court may determine an
award of such fees to be inappropriate where a
landowner strategically withholds inconspicuous damage elements from the commissioners
but presents those damage elements at a subsequent jury trial.17
¶21 Condemnor quotes the following statement from State ex rel. Dep’t of Transp. v. Watkins, 1999 OK CIV APP 122, 993 P.2d 144, to
support its argument that landowners must
disclose to the commissioners any damages
they are claiming or forfeit the ability to present those damages at trial:
The commissioners should be informed of
the damages that the landowners are claim1270
ing they will sustain by reason of condemnation and which the landowners would
ask a jury to consider in the event the landowners believe the commissioners’ award
is insufficient compensation. The commissioners’ award is an important measure to
avoid jury trial and a factor in determining
a party’s entitlement to attorney fees and
litigation expenses. If the landowners do
not wish to meet with the commissioners at
the time of their inspection of the property,
then, the landowners should disclose any
damages they are claiming by reason of the
condemnation, and which may not be
apparent from inspection, so that such
damages can be included in the instructions given the commissioners.
Id. ¶ 5, 993 P.2d at 146.
¶22 However, the Watkins Court did not confront the issue of whether information that is
not disclosed to the commissioners is barred
from a subsequent jury trial. Rather, the Watkins Court was confronted with an appeal from
an order overruling a condemnor’s timely filed
exception to a commissioners’ report and
request for a supplemental appraisal.18 On
appeal, this Court admonished the parties
against withholding known information relevant to the valuation of the property from the
commissioners, but acknowledged that, “[i]n
any event, the need for a supplemental or new
commissioners’ appraisal should not be decided by assessing the relative fault of the parties
for not providing the commissioners with all
the necessary information to perform their
statutory duty.” Id. ¶ 8, 993 P.2d at 147. This
Court concluded the condemnor had established “good cause” for a new or supplemental
appraisal and reversed the trial court and
remanded with directions to order a new commissioners’ report. Id. ¶ 10, 993 P.2d at 147.
¶23 Regarding Watkins, the Oklahoma
Supreme Court has stated, in pertinent part, as
follows:
[The condemnor] would have us adopt the
reasoning of the Court of Civil Appeals in
… Watkins …. It must first be stated that
opinions released for publication by order
of the Court of Civil Appeals are persuasive only and lack precedential effect…
[Furthermore,] Watkins does not stand for
the proposition forwarded by [the condemnor], nor does it conflict with our holding
in the instant cause.
Vol. 85 — No. 15 — 5/24/2014
Perdue, ¶ 14 n.22, 204 P.3d at 1284-85 n.22 (citations omitted). The same is true here. Consequently, we conclude the trial court erred as a
matter of law by finding it erroneously
“permitt[ed] the jury to consider evidence and
arguments related to the Landowners’ claimed
billboard damages because that element of
damages was never presented to or considered
by the [c]ommissioners.”
II. Other Arguments Advanced by Condemnor in
its Motion for New Trial
¶24 Condemnor argues the Order should be
affirmed on a separate basis raised below in its
motion for new trial: that the trial court allowed
numerous unaccepted offer letters related to
billboard leases to be admitted into evidence
over Condemnor’s objection.19 Condemnor
admits the amounts set forth in these offer letters were redacted. Nevertheless, Condemnor
argues the admission of these redacted offer
letters constitutes an independent basis for
affirming the Order because “[i]t is well-settled
under Oklahoma law that values in condemnation cases cannot be based upon mere expressions of interest or unaccepted offers . . . .”20
¶25 Although “[e]vidence of unaccepted
offers to purchase is generally held to be inadmissible for the purpose of establishing market
value regardless of whether testified to by the
offeror or the offeree,” McAlester Urban Renewal
Auth. v. Watts, 1973 OK 120, ¶ 7, 516 P.2d 261,
263, the purpose of this general rule is to
exclude “[p]rivate offers [which] can be multiplied to any extent for the purpose of a cause,
and the bad faith in which they were made
would be difficult to prove,” id. ¶ 9, 516 P.2d at
263 (citation omitted). We conclude that any
error that may have occurred as a result of
admitting unaccepted offers was prevented by
the trial court’s decision to redact the amounts
of the offers, and to only admit them “to substantiate the fact that [Landowners] received
letters and there was interest in the property
for billboard purposes.”21 Therefore, we conclude the trial court did not clearly abuse its
discretion in this regard.22
CONCLUSION
¶26 Based on our review of the record on
appeal and applicable law, we conclude the
issue of whether the trial court erred by admitting certain evidence at trial that was neither
presented to nor considered by the commissioners was properly raised at the trial court
level and on appeal, and is, therefore, properly
Vol. 85 — No. 15 — 5/24/2014
before this Court. We further conclude the trial
court did not err by admitting evidence neither
presented to nor considered by the commissioners because a rule limiting the jury trial in
a condemnation proceeding to information
provided to and/or considered by the commissioners does not exist in the applicable statutory procedure, nor is such a rule consistent
with the controlling constitutional and statutory provisions. Moreover, where a demand is
made for a jury trial in a condemnation proceeding, the award made by the commissioners is not competent evidence to go before the
jury, and once the judgment is entered memorializing the jury’s verdict, the verdict supersedes the commissioners’ award, and it is of no
moment whether the commissioners were
properly instructed. Finally, we conclude the
trial court did not abuse its discretion by allowing redacted offer letters related to billboard
leases to be admitted into evidence. Therefore,
we reverse the Order granting a new trial with
directions to the trial court to reinstate the
judgment memorializing the jury’s verdict.
¶27 REVERSED WITH DIRECTIONS.
FISCHER, P.J., and WISEMAN, J., concur.
1. Condemnor filed an amended petition in November 2007, and a
second amended petition in February 2008. The second amended petition states that “[t]he acquisition of the Property is necessary to accommodate the growth in the number of students within the district and to
provide for the expansion of the Jenks School District facilities, including parking and recreational areas.” R. at 69, ¶ 3. It further states that
in February 2008, “the Jenks School District adopted a second resolution legally determining and declaring the necessity of taking, appropriating, condemning and acquiring the Property for public school
purposes. The purpose of the second resolution is to address certain
claimed Agenda deficiencies that [Landowners] claimed invalidated
the first resolution.” R. at 69, ¶ 7.
2. R. at 80-81. The commissioners were instructed that the amount
of just compensation equals the fair market value of the Property, except
for any mineral interests. R. at 74. Private property shall not be taken for
public use without just compensation. Okla. Const. art. 2, § 24.
3. R. at 74.
4. Landowners had previously filed an objection to the commissioners’ report, in June 2008, on the basis of certain alleged procedural
defects. However, Landowners did not set forth the issue of billboard
lease damages in that objection.
5. Tr. vol. II at 214, 335.
6. The July 2011 judgment states “[t]he Commissioners’ Report
previously valued the land at $1,402,850.00”; Condemnor deposited
this amount with the Tulsa County Court Clerk in July 2008, and it was
then distributed to Landowners; and “[Landowners] are therefore
entitled to a judgment in their favor and against [Condemnor] in the
amount of $1,697,150.00, which represents the difference between the
verdict amount and the amount of the Commissioners’ Award previously paid by [Condemnor].” R. at 358-59.
7. March 2012 Tr. at 3.
8. March 2012 Tr. at 4.
9. R. at 539. Counsel for Condemnor further argued at the hearing
that “it makes perfect sense” to prevent evidence that was not presented to or considered by the commissioners from being presented to
the jury because if a jury’s award exceeds the commissioners’ award by
at least ten percent, the landowner is entitled to reasonable attorney,
appraisal, engineering, and expert witness fees actually incurred.
1271
March 6, 2012 Tr. at 3. See State ex rel. Dep’t of Transp. v. Perdue, 2008 OK
103, ¶ 3, 204 P.3d 1279, 1280. He argued that “it’s critical that the [c]
ommissioners and the jury [consider] the same damage elements.
That’s the only way to make that ten percent rule fair.”
10. However, even where a trial court errs in admitting or excluding evidence, no judgment shall be reversed or affected by reason of
any error or defect in the proceedings which does not affect the substantial rights of the adverse party, 12 O.S.2011 § 78, and only “[w]hen
a party is prevented from having a fair trial as a result of an error
which materially affects the substantial rights of the party [is] a new
trial . . . required,” Taliaferro v. Shahsavari, 2006 OK 96, ¶ 13, 154 P.3d
1240, 1244 (footnote omitted). See also 12 O.S.2011 § 2104(A). “Reversible error has been held to be an error that creates a probability of
change in the outcome of the lawsuit.” Taliaferro, ¶ 13, 154 P.3d at 1244
(footnote omitted).
11. See R. at 362, 371-73. We note that the parties also argued the
issue at the March 2012 hearing. Among other things, counsel for
Landowners argued at the hearing that the cases upon which Condemnor relied to support its argument that the trial court erred by admitting evidence at trial neither presented to nor considered by the commissioners “both deal solely with appeals from overruling exceptions
to commissioner reports” and neither “went to a jury trial . . . .” March
2012 Tr. at 14. Counsel for Landowners also argued, citing the Syllabus
of City of Oklahoma City v. Garnett, 1956 OK 137, ¶ 0, 296 P.2d 766, 766,
that the appraisal by the commissioners in a condemnation proceeding
where there is a demand for jury trial “is unimportant after the amount
of the damages is fixed by the jury.” March 2012 Tr. at 13. “When an
issue or claim is properly before the court, the court is not limited to
the particular legal theories advanced by the parties, but rather retains
the independent power to identify and apply the proper construction
of the governing law.” Keota Mills & Elevator v. Gamble, 2010 OK 12, ¶
19, 243 P.3d 1156, 1162 (footnote omitted).
12. The statutory provisions pertinent to this appeal are as follows:
C. The commissioners shall be sworn to perform their duties
impartially and justly; and they shall inspect said real property
and consider the injury which said owner may sustain by reason
of the condemnation and they shall assess the just compensation
to which said owner is entitled; and they shall forthwith make
report in writing to the clerk of the court, setting forth the quantity, boundaries, and just compensation for the property taken,
and amount of injury done to the property, either directly or
indirectly, which they assess to the owner; which report must be
filed and recorded by the clerk. . . .
D. “Just compensation,” as used in subsection C of this section, shall mean the value of the property taken . . . .
66 O.S.2011 § 53.
When possession is taken of property condemned, as provided
herein, the owner shall be entitled to the immediate receipt of the
compensation awarded, without prejudice to the right of either
party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of said compensation.
66 O.S.2011 § 54.
(A) . . . [E]ither party may within sixty (60) days after the
filing of [the commissioners’] report file with the clerk a written
demand for a trial by jury, in which case the amount of damages
shall be assessed by a jury, and the trial shall be conducted and
judgment entered in the same manner as civil actions in the district
court. If the party demanding such trial does not recover a verdict
more favorable to him than the assessment of the commissioners,
all costs in the district court may be taxed against him.
....
(D) . . . [I]f the award of the jury exceeds the award of the
court appointed commissioners by at least ten percent (10%),
then the owner of any right, title or interest in the property
involved may be paid such sum as in the opinion of the court
will reimburse such owner for his reasonable attorney, appraisal,
engineering, and expert witness fees actually incurred because of
the condemnation proceeding. The sum awarded shall be paid
by the party instituting the condemnation proceeding.
66 O.S.2011 § 55.
13. We note that “[f]or land taken by [the Oklahoma Department of
Transportation], condemnation proceedings are governed by [69
O.S.2011 § 1203].” Cole, ¶ 10, 236 P.3d at 51. However, the condemnation procedures set out in 66 O.S.2011 §§ 53-55, which apply in this
case, “are substantially the same as those set out in [69 O.S.2011 §
1203].” Cole, ¶ 10 n.3, 236 P.3d at 51 n.3.
14. We note that it is “not uncommon” in condemnation proceedings for evidence affecting the value of the property to not be presented to or considered by the commissioners. See Perdue, ¶ 17, 204
P.3d at 1285.
1272
15. In this regard, we note that the commissioners’ report is not one
of the three pleadings — petition, objection to the commissioners’
report, and demand for jury trial — authorized in condemnation proceedings. See Casteel, ¶ 15, 522 P.2d at 610.
16. “Statutory words are to be understood in their ordinary sense,
except when a contrary intention plainly appears.” Hess, 1985 OK 28,
¶ 6, 698 P.2d at 932 (footnote omitted). The “ordinary meaning” of the
word “’may’ . . . signifies permissive rather than mandatory action.” Id.
¶ 8, 698 P.2d at 933.
17. We note that, in this case, even if the jury had awarded Landowners the amount they requested minus billboard damages, such an
award would, nevertheless, have exceeded the award of the commissioners by at least ten percent.
18. The Watkins Court actually addressed two consolidated appeals.
Id. ¶ 1, 993 P.2d at 145.
19. Condemnor raised this issue before the trial court in its motion
for new trial and at the March 2012 hearing.
20. Answer Brief at 29.
21. Tr. vol. II at 313.
22. Condemnor argues that the jury was nevertheless:
certainly led to and inclined to speculate as to the dollar amounts
that were redacted in the unaccepted post-taking offer letters . . .
when [Marshaleta] Taylor testified over [Condemnor’s] objection
that she relied upon the offer letters when reaching her opinion
as to the value of the lost billboard income.
Answer Brief at 30. However, the trial court ruled that Landowners
could not reveal the values in the letters, Tr. vol. II at 314, and, apart
from Marshaleta Taylor basing her valuation of the Property, in part,
on the viability of billboard leases, the values in the letters were never
disclosed to the jury.
2014 OK CIV APP 41
JONELL MCCLISH, Petitioner, vs.
WOODARTS INC. &/or TTC ILLINOIS,
INC., CNA INSURANCE GROUP &/or
CONTINENTAL CASUALTY CO., and THE
WORKERS’ COMPENSATION COURT,
Respondents.
Case No. 111,287. October 25, 2013
PROCEEDING TO REVIEW AN ORDER OF
A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT
HONORABLE ERIC W. QUANDT,
TRIAL JUDGE
VACATED AND REMANDED FOR
FURTHER PROCEEDINGS
Pamla K. Cornett, Robert A. Flynn, FLYNN
LAW FIRM PLLC, Tulsa, Oklahoma, for Petitioner
Jeffrey D. Nachimson, PIERCE COUCH HENRICKSON BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma, for Respondents Woodarts Inc. &/or TTC Illinois, Inc., CNA Insurance
Group &/or Continental Casualty Co.
¶1 Petitioner Jonell McClish (Claimant) seeks
review of an Order of a three-judge panel of the
Workers’ Compensation Court vacating the
decision of the trial court. The trial court
denied the motion of Woodarts Inc. &/or TTC
Illinois, Inc. and CNA Insurance Group &/or
Vol. 85 — No. 15 — 5/24/2014
Continental Casualty Co. (collectively, Employer) to dismiss Claimant’s compensation claim
for failure to timely prosecute and found,
instead, that Claimant made a good faith effort
to receive a hearing in the time prescribed by
85 O.S. Supp. 1997 § 43(B). In lieu of the trial
court’s order, the three-judge panel sustained
Employer’s motion to dismiss for failure to
timely prosecute. After review of the record
and applicable law, we vacate and remand for
further proceedings.
BACKGROUND
¶2 The alleged injury in this case occurred
more than twelve years ago. In September
2001, Claimant filed a Form 3 alleging she sustained compensable injuries to various body
parts in July 2001 as a result of “moving cabinet
repeat[ed]ly from table to floor” while employed as a carpenter by “Woodarts Inc./TTC
of Ill., Inc.” In its Form 10, Employer denied
Claimant had a compensation insurance policy
with CNA Insurance Group &/or Continental
Casualty Co.
¶3 In July 2002, Claimant filed a Form 9
motion to set payment for medical services for
trial, and in October 2002, Claimant filed a
Form 9 motion to set the issue of insurance
coverage for trial. In February 2003, Claimant
again filed a Form 9 motion to set payment for
medical services for trial.
¶4 In January 2004, Claimant filed a Form 13
request for prehearing conference and a Form
9 motion to set for trial, specifically listing the
following in both forms: “Set for Trial; TTD;
Medical; authorization for another surgery.”1
¶5 In June 2004, Claimant filed an amended
Form 3 alleging that in addition to the injury
sustained in July 2001, she subsequently injured
her neck, shoulders, and back in October 2001
while “at hospital after back surgery due to
nurse letting her fall.”2
¶6 In September 2004, Claimant filed a Form
9 motion to set for trial and listed a medical
report to be introduced as an exhibit. She also
filed a Form 9 in October 2004 setting forth the
issue of permanent total disability for trial.
¶7 In January 2005, Claimant filed a motion
requesting that Employer produce a copy of
the insurance policy that covered him during
her employment, and in an order filed in
March 2005, the trial court directed “Continental Casualty Company (CNA) . . . to produce
Vol. 85 — No. 15 — 5/24/2014
for inspection and copying by [Claimant] a
copy of the insurance policy involved herein, if
on[e] exists.”3 A trial date was set for July 11,
2005; however, in July 2005 Claimant filed a
motion to continue “due to no answer from the
Insurance Commissioners.”4 Motions regarding the issue of insurance coverage continued
to be filed and, in March 2007, Claimant filed a
Form 9 motion to set for trial and named an
insurance expert to be called at trial as a witness. In July 2008, Claimant again filed a Form
9 motion to set for trial.
¶8 In an “Order of Referral to Mediation”
filed in November 2008, the trial court appointed a mediator at the request of the parties, with
the date of the mediation to be established by
agreement of the parties. However, mediation
failed and, in June 2009, Claimant filed a Form
9 motion to set for trial. Nevertheless, in March
2010, Claimant filed a request for a second
attempt at mediation.
¶9 In May 2010, Employer filed a Form 10
adding the affirmative defense of “Statute of
Limitations — Section 43B,” and, in October
2010, Employer filed a motion to dismiss.
¶10 In a second “Order of Referral to Mediation” filed in January 2011, the trial court
appointed a mediator at the request of the parties, with the date of the mediation to be established by agreement of the parties. Mediation
again failed, and, in May 2011, Claimant filed a
Form 9 motion to set for trial on the issues of
permanent partial disability, permanent total
disability, and continuing medical maintenance. Claimant again filed a Form 9 motion in
July 2011.
¶11 In the trial court’s order filed on August
19, 2011, it found that “[Employer’s] motion to
dismiss for failure to timely prosecute pursuant to 85 O.S. § 43(B) is overruled,” and found,
instead, that Claimant “made a good faith
effort to receive a hearing in the time prescribed by § 43B.” Employer appealed to a
three-judge panel, asserting in its Request for
Review that, inter alia, “[t]here were at least
two (2) periods of three (3) years each in which
[C]laimant did not seek a good faith request for
a hearing and final determination.”5 Employer
asserted the first period was from September
2001 to October 2004, and the second period
was from December 2004 to May 2011.
¶12 In its Order filed on November 7, 2012,
the three-judge panel, with one judge dissenting, found the trial court’s order to be “con-
1273
trary to law AND against the clear weight of
the evidence,” and vacated the trial court’s
order. In lieu thereof, the three-judge panel
found “[Employer’s] motion to dismiss for failure to timely prosecute pursuant to 85 O.S. §
43(B) is SUSTAINED.” From this Order, Claimant appeals.
STANDARD OF REVIEW
¶13 This appeal presents issues of law only.
We review issues of law de novo, without deference to the lower court’s legal rulings. Hillcrest
Med. Ctr. v. Powell, 2013 OK 1, ¶ 6, 295 P.3d 13,
15.
ANALYSIS
I. Jurisdiction of the Three-Judge Panel
¶14 Claimant argues the trial court’s order
was interlocutory because it neither granted
nor denied an award of benefits and, therefore,
the three-judge panel lacked jurisdiction to
review the trial court’s order. However, 85 O.S.
Supp. 1997 § 3.6(A), the law in effect at the time
of the alleged injury,6 provides, in pertinent
part, that after a trial court makes an order,
decision or award,
[e]ither party feeling himself aggrieved by
such order, decision or award shall, within
ten (10) days, have the right to take an appeal
from the order, decision or award of the Judge to
the Workers’ Compensation Court sitting en
banc. Such appeal shall be allowed as a matter
of right to either party upon filing with the
Administrator a notice of such appeal. . . . The
Court en banc may reverse or modify the
decision only if it determines that such decision was against the clear weight of the evidence or contrary to law. Upon completion
of the appeal, the members of the Court sitting en banc shall issue such order, decision
or award as is proper, just and equitable. . . .
Appeals shall be allowed on a question of law or
a question of fact, or a mixed question of law and
fact, and shall be determined on the record
made before the Judge.
(Emphasis added.)
¶15 Accordingly, three-judge panels of the
Workers’ Compensation Court are not limited
to review of trial court orders granting or denying compensation awards. This is consistent
with “the institutional design” of the Workers’
Compensation Court, which “was intended
not to afford two layers of appellate process …
but rather to implement a two-tier decisional
1274
system within the trial tribunal with but a single appellate remedy in [the Supreme Court].”
Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 8,
684 P.2d 548, 551 (footnote omitted). Pursuant
to this design, “[w]hen the order of the trial
court is vacated by the three-judge panel,” as
occurred in this case, “the trial court’s order
stands replaced with that of the review panel,
so that there is never more than one final decision to be reviewed in the appellate courts.”
McGuire v. N. Glantz & Son, LLC, 2010 OK 74, ¶
7, 242 P.3d 530, 532 (citing Parks, ¶ 11, 684 P.2d
at 551). See also Hermetics Switch, Inc. v. Sales,
1982 OK 12, ¶ 3, 640 P.2d 963, 965 (“[A] case
appealed for consideration en banc is not a fit
subject for corrective relief in this court until a
reviewable order has been rendered.”). Consequently, we reject Claimant’s argument that the
three-judge panel lacked jurisdiction to review
the trial court’s order denying Employer’s
motion to dismiss.
II. Request for a Hearing and Final Determination
of the Claim
¶16 “Ordinarily, claims for workers’ compensation awards must either be granted or
denied”; however, “[t]hey stand subject to involuntary dismissal . . . for want of an employee’s
timely-pressed request for a claim’s hearing.”
Amos v. Spiro Pub. Sch., 2004 OK 4, ¶ 7, 85 P.3d
813, 816 (footnote omitted). The applicable rule
in effect at the time of Claimant’s alleged injury
requiring a timely request of a hearing and final
determination is as follows:
When a claim for compensation has been
filed with the Administrator as herein provided, unless the claimant shall in good
faith request a hearing and final determination thereon within three (3) years from
the date of filing thereof or within three (3)
years from the date of last payment of compensation or wages in lieu thereof, same
shall be barred as the basis of any claim for
compensation under the Workers’ Compensation Act and shall be dismissed by the
Court for want of prosecution, which action
shall operate as a final adjudication of the
right to claim compensation thereunder.
Title 85 O.S. Supp. 1997 § 43(B).
¶17 The purpose of § 43(B) is to prevent a
party from “sle[eping] on his rights” after a
claim has been filed and to ensure that only
those claimants prevail who, “in good faith,
actively pursue[] resolution” of their claims.
Key Energy Servs., Inc. v. Minyard, 2007 OK 99,
Vol. 85 — No. 15 — 5/24/2014
¶ 18, 173 P.3d 1198, 1203. “The time restriction
in § 43(B) fixes the time period for requesting a
hearing on a timely-filed claim. It is a time
restriction designed to protect both the employer and the claimant.” Multiple Injury Trust Fund
v. Wade, 2008 OK 15, ¶ 24, 180 P.3d 1205, 1212
(citations omitted). If a claim is properly dismissed pursuant to § 43(B), “the claimant’s loss
is final and irretrievable. No other remedy will
lie for the recapture of a claim’s residue extinguished by the operation of § 43(B).” Cole v.
Silverado Foods, Inc., 2003 OK 81, ¶ 12, 78 P.3d
542, 548 (emphasis omitted).
¶18 Regarding the precise operation of § 43,
the Oklahoma Supreme Court has stated:
A claim will be barred by § 43 when an
injured worker does not, within the limitations period, make a good faith request for
a hearing and final determination of his or
her claim. We have said that the statutory
bar did not apply if, within the limitations
period, the claimant filed a written motion
requesting a hearing and final determination of the claim.
Ellington v. Horwitz Enters., 2003 OK 37, ¶ 9, 68
P.3d 983, 985 (citations and internal quotation
marks omitted). Accordingly,
to satisfy § 43 the worker’s filing must have
content that is designed to request a hearing and final determination of the claim.
We have stated[, for example,] that a Form
3 does not satisfy § 43, because that Form
was not designed to accomplish a request
for a hearing and final determination.
Ellington, ¶ 10, 68 P.3d at 985 (emphasis omitted). See also Tyson Foods, Inc., Own Risk No.
12220 v. Watson, 2011 OK CIV APP 109, ¶ 9, 263
P.3d 332, 335 (“Form 13 requests for pre-hearing settlement conferences do not constitute
requests for a final determination.”) (citation
omitted).
¶19 The Supreme Court has further stated
that “the bar of the statute is demonstrated
when any [three]-year period passes after filing
a claim in which there has not been a goodfaith effort to receive a hearing and final determination.” Ellington, ¶ 14, 68 P.3d at 986 (quoting Matter of Death of Hendricks, 1991 OK 52, ¶
12, 812 P.2d 1361, 1364) (original emphasis
omitted, emphasis added). The Ellington Court
explained, “were we to hold that a claim could
be withdrawn from the three-year limitation
period forever by the filing of a request for a
Vol. 85 — No. 15 — 5/24/2014
hearing . . . shortly after the claim was filed, the
legislative purpose behind § 43(B) would be
completely thwarted.” Ellington, ¶ 14, 68 P.3d
at 986. See also Tyson Foods, ¶ 7, 263 P.3d at 334
(“[R]epeated filings of forms not intended to
request a final hearing and determination are
not sufficient . . . .”).
¶20 Moreover, the Oklahoma Supreme Court
has stated that § 43(B) “is not a statute of repose
to be strictly construed despite a claimant’s
efforts,” Wade, ¶ 24, 180 P.3d at 1212 (citation
omitted), and a claimant can “show[] acts
which operate to toll or arrest the statutory
bar” other than the filing of a Form 9 request
for a hearing and final determination of his/
her claim, Key Energy, ¶ 11, 173 P.3d at 1201. For
example, in Key Energy, the Supreme Court
stated that the claimant attempted to exercise
his rights in good faith, and “actively pursued
resolution but was thwarted from vindicating
his rights by: 1) the death of the first independent medical examiner and; 2) the uncontested
order by the court, made before the statutory
period had run, that the claimant receive medical treatment from an independent medical
examiner paid for by the employer.” Id. ¶ 18,
173 P.3d at 1203. Although the claimant in Key
Energy did not file a request for a hearing and
final determination of his claim within a threeyear period, the Court concluded that the §
43(B) time restriction was tolled by the trial
court’s order appointing an independent medical examiner within the three-year period
because the claimant could not file a Form 9
requesting final determination without attaching a medical report, and he could not attach a
medical report without a medical examination.
Id. ¶ 14, 173 P.3d at 1202.
¶21 As stated by this Court, although the
claimant in Key Energy “requested the appointment of an independent medical examiner, the
trial court failed for nearly 8 months, until
about a month before the [expiration of the
three-year time restriction], to appoint a
replacement for the first agreed-upon doctor,
who died before he could examine the claimant
and submit a report.” Tyson Foods, Inc., ¶ 12, 263
P.3d at 335 (citation omitted). In addition, the
three-year time restriction can be tolled where
the employer’s actions demonstrate a “conscious
recognition of liability,” Key Energy, ¶ 12, 173
P.3d at 1201, or where “some activity on the part
of the [employer] forestall[s] prosecution of the
claim against the [employer],” id. (footnote omitted). “The trial judge has the authority to deter-
1275
mine whether circumstances operate to toll the
time bar, and we review its determination de
novo.” Id. (footnotes omitted).
¶22 Claimant has filed Form 9 “Motions to
Set for Trial” throughout these proceedings
and at least every three years. She filed Form 9
Motions in July 2002, October 2002, February
2003, January 2004, September 2004, October
2004, March 2007, July 2008, June 2009, and
July 2011. In August 2011, the trial court denied
Employer’s request to dismiss.
¶23 Furthermore, the prosecution of this
claim has been forestalled by circumstances
outside Claimant’s control. Specifically, issues
related to the identification of Employer’s
insurer at the time of Claimant’s injury have
caused significant delay as is evidenced by,
among other things, Employer’s denial in its
Form 10 that it had a compensation insurance
policy with CNA Insurance Group &/or Continental Casualty Co.; the March 2005 order of
the trial court directing “Continental Casualty
Company (CNA) . . . to produce for inspection
and copying by [Claimant] a copy of the insurance policy involved herein, if on[e] exists”;
and Claimant’s July 2005 motion to continue
“due to no answer from the Insurance Commissioners.” Among additional filings, Claimant’s March 2007 Form 9 listing an insurance
expert to be called as a witness at trial reveals
these issues remained unresolved up to the
trial court’s August 2011 order denying the
motion to dismiss.
¶24 As stated above, § 43(B) is not “to be
strictly construed despite a claimant’s efforts,”
and a claimant can show acts which operate to
toll the three-year time restriction other than
the filing of a Form 9 request for a hearing and
final determination of his/her claim, such as
circumstances outside the claimant’s control
that forestall prosecution of the claim. Here,
Claimant consistently filed Form 9 motions
throughout these proceedings and circumstances outside Claimant’s control have forestalled
prosecution of the claim. We conclude no
three-year period exists following the filing of
Claimant’s original Form 3 during which she
did not “in good faith request a hearing and
final determination . . . .” § 43(B). Therefore, we
vacate the Order granting Employer’s motion
to dismiss Claimant’s compensation claim for
failure to timely prosecute pursuant § 43(B).
1276
CONCLUSION
¶25 After our review of the record on appeal
and the applicable law, we vacate the Order of
the three-judge panel granting Employer’s
motion to dismiss Claimant’s compensation
claim for failure to timely prosecute pursuant
to 85 O.S. Supp. 1997 § 43(B), and remand for
further proceedings.
¶26 VACATED AND REMANDED FOR
FURTHER PROCEEDINGS.
1. R. at 58, 59.
2. R. at 62.
3. R. at 70.
4. R. at 72.
5. R. at 111 (internal quotation marks omitted).
6. The date of injury has long been the point in time in workers’
compensation cases when rights of the parties become established. Williams Cos., Inc. v. Dunkelgod, 2012 OK 96, ¶ 14, 295 P.3d 1107, 1111-12.
2014 OK CIV APP 42
JUDY ANN SMITH, as personal
representative of the estate of Patty Sue
Yeater, deceased, Plaintiff/Appellee, vs.
SHELTER MUTUAL INSURANCE
COMPANY, Defendant/Appellant, and
DANNY RAY BREEDEN and DOYLE
DAVIS, Defendants.
HONORABLE LISA DAVIS, TRIAL JUDGE
REVERSED AND REMANDED WITH
DIRECTIONS
George Mullican, Christopher Wolek, Diane M.
Black, GIBBS, ARMSTRONG, BOROCHOFF,
MULLICAN & HART, P.C., Tulsa, Oklahoma,
for Plaintiff/Appellee
David B. Donchin, Glen Mullins, R. Ryan
Deligans, DURBIN, LARIMORE & BIALICK,
Oklahoma City, Oklahoma, for Defendant/
Appellant
¶1 Defendant/Appellant Shelter Mutual
Insurance Company (Shelter) appeals the trial
court’s Order granting summary judgment in
favor of Plaintiff/Appellee Judy Ann Smith
(Smith), as personal representative of the estate
of Patty Sue Yeater, deceased. This case arises
from an automobile accident, and the primary
Vol. 85 — No. 15 — 5/24/2014
issue presented on appeal is whether the minimum limit of liability insurance coverage is the
higher amount set forth in the Motor Carrier
Act of 1995 (the MCA), 47 O.S.2011 §§ 230.21230.33, or whether it is the lower amount set
forth in 47 O.S.2011 § 7-324. Based on our
review of the record and applicable law, we
conclude it is the lower amount and, therefore,
we reverse the Order granting summary judgment to Smith, and remand with directions to
the trial court to enter an order granting summary judgment to Shelter.
BACKGROUND
¶2 Smith filed her second amended petition
in July 2011, alleging her mother, Patty Sue
Yeater (Decedent), was killed when, on an evening in December 2009, the vehicle she was
driving collided with a dump truck (the truck)
owned by Doyle Davis (Davis), and operated
at the time by Danny Ray Breeden (Breeden).
Smith alleged Decedent was driving in a lawful manner at the time of the accident, but that
the truck was parked partially on the roadway
without brake lights, warning lights, or other
warning device to alert approaching traffic of
its presence.
¶3 Smith asserted various negligence theories against Davis and Breeden, and asserted
the truck was insured by Shelter at the time of
the collision and that Shelter is obligated to pay
for any damages caused by the negligence of
Davis and Breeden. Smith further alleged the
truck is subject to the MCA, and sought a
“declaratory judgment . . . establishing that the
minimum limits of liability insurance coverage
mandated by the financial responsibility law
that applies to this accident are set by . . . §
230.30 in the amount of $350,000.00.”1
¶4 In November 2011, Shelter filed an answer
in which it admitted the truck was owned by
Davis and that, on the evening in question, it
was parked partially on the roadway while
operated by Breeden. Shelter further admitted
that at the time of the collision the truck was
insured by Shelter. Shelter otherwise denied
Smith’s allegations, including the allegation
that it is obligated to pay for damages caused
by the negligence of Davis and Breeden. In
addition, Shelter asserted that legitimate disputes exist between the parties “as to the
amount of insurance coverage afforded under
the Shelter insurance policy,” and “as to the
classification of the vehicle involved in the
accident . . . .”2
Vol. 85 — No. 15 — 5/24/2014
¶5 Smith settled her claims against Davis
and Breeden and dismissed with prejudice her
cause of action against them, but Shelter
remained a defendant. Smith subsequently
filed a motion for summary judgment against
Shelter, to which Shelter filed a response, and
Smith a reply. In its response, and at the hearing on the motion for summary judgment,
Shelter agreed it is to pay up to the amount
allowable pursuant to the insurance policy.3
However, the parties disagree “on the issue of
the required liability limits for the [truck]
under Oklahoma law . . . .”
¶6 The insurance policy provides that, “[r]
egardless of the limit of liability shown in the
Declarations,” when an accident occurs while
the truck is being operated by an individual
who merely has permission or general consent
to use it, the limits of liability “will be the
minimum limits mandated by any applicable
uninsured motorist insurance law or financial
responsibility law.”4 It is undisputed Breeden is
not a named insured under the policy but was
operating the truck with permission5 at the
time of the collision. Smith argues the applicable minimum limit of liability insurance coverage is found in the MCA, and is $350,000.
Shelter argues the MCA does not apply because
Breeden was neither a motor carrier nor a private carrier, and that the minimum limits of
liability insurance coverage are $25,000 per
person and $50,000 per accident pursuant to 47
O.S.2011 § 7-324 for motor vehicles generally.6
¶7 At the hearing on the motion for summary
judgment, the trial court explained that
although it agreed with Shelter that Breeden
was not a “motor carrier” pursuant to the
MCA, he “fit under the private carrier definition.”7 Accordingly, the trial court entered an
Order, filed on November 27, 2012, granting
summary judgment in favor of Smith. In the
Order, the trial court “[found] that the only
issue in the case is the limits of insurance under
the policy,” and found “the limits of insurance
in the higher amount as sought by [Smith]
should be imposed as a matter of law . . . .” The
trial court stated, “because the only issue in the
case was related to a dispute on the limits of
insurance, this is a final judgment.” From the
trial court’s Order, Shelter appeals.
STANDARD OF REVIEW
¶8 “Although a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate
1277
decision turns on purely legal determinations,
i.e. whether one party is entitled to judgment
as a matter of law because there are no material disputed factual questions.” Carmichael v.
Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.
Therefore, an order that grants summary relief
disposes solely of legal questions and is reviewable by a de novo standard. Residential Funding
Real Estate Holdings, LLC v. Adams, 2012 OK 49,
¶ 17, 279 P.3d 788, 793-94. See Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d
1081, 1084 (“Issues of law are reviewable by a
de novo standard and an appellate court claims
for itself plenary[,] independent and non-deferential authority to reexamine a trial court’s
legal rulings.”). We will examine the pleadings
and evidentiary materials submitted by the
parties to determine if there is a genuine issue
of material fact, and all inferences and conclusions to be drawn from the evidentiary materials must be viewed in the light most favorable
to the non-moving party. Carmichael, ¶ 2, 914
P.2d at 1053.
¶9 Statutory construction presents a question
of law, State v. Tate, 2012 OK 31, ¶ 7, 276 P.3d
1017, 1020, and, therefore, calls “for a legal conclusion to be governed by a de novo standard of
appellate review. When reexamining a trial
court’s legal rulings, an appellate court exercises plenary, independent and non-deferential
authority,” State v. Native Wholesale Supply, 2010
OK 58, ¶ 9, 237 P.3d 199, 205 (footnotes omitted). “The fundamental rule of statutory construction is to ascertain the intent of the legislature. Words and phrases of a statute are to be
understood and used not in an abstract sense,
but with due regard for context, and they must
harmonize with other sections of the Act.” Tate,
¶ 7, 276 P.3d at 1020 (citation omitted).
ed, shall apply to the transportation of passengers or property by motor carriers and private
carriers, except motor carriers of household
goods and used emigrant movables, over public highways of this state . . . .” Id. § 230.22(C).
¶11 Of course, not all persons engaged in
transporting persons or property on public
highways are subject to regulation pursuant to
the MCA. A “motor carrier” is “any person,
except a carrier of household goods or used
emigrant movables, operating upon any public
highway for the transportation of passengers
or property for compensation or for hire or for
commercial purposes, and not operating exclusively within the limits of an incorporated city
or town within this state.” Id. § 230.23(6).8
¶12 A “private carrier” is defined as “any
person engaged in transportation upon public
highways, of persons or property, or both, but
not as a motor carrier, and includes any person
who transports property by motor vehicle
where such transportation is incidental to or in
furtherance of any commercial enterprise of
such person, other than transportation[.]” Id. §
230.23(9). Smith argues, and the trial court
agreed, that any person transporting persons or
property on public highways is a private carrier
so long as he/she is not a motor carrier, and so
long as the vehicle he/she is operating exceeds
the 26,000-pound weight limitation discussed
below. In effect, Smith argues that the word
“includes,” as used in this provision, signifies
that what follows it is but a subset of what is
meant by “private carrier,” and that this subset
in no way circumscribes the class of persons
who may be regulated as private carriers.
declared that it is necessary in the public
interest to regulate transportation by motor
carriers and private carriers in such manner as to recognize the need to require all
motor carriers and private carriers to have
adequate insurance; for motor carriers and
private carriers to provide service in a safe
and efficient manner; and to establish that
the operations of motor carriers and private carriers will not have a detrimental
impact on the environment.
¶13 We disagree with Smith’s argument.
Where the meaning of a statutory provision is
uncertain, it is to be given a reasonable construction, one that will avoid absurd consequences if this can be done without violating
legislative intent. Grand River Dam Auth. v.
State, 1982 OK 60, ¶ 25, 645 P.2d 1011, 1019.
Further, the Legislature will not be presumed
to have done a vain and useless act in the
promulgation of a statute, In re Sup. Ct. Adjudication, 1979 OK 103, ¶ 6, 597 P.2d 1208, 1210,
nor will an inept or incorrect choice of words
be applied or construed in a manner to defeat
the real or obvious purpose of a legislative
enactment, Wooten v. Hall, 1968 OK 90, ¶ 6, 442
P.2d 334, 336.
47 O.S.2011 § 230.22(A). “The provisions of the
[MCA], except as hereinafter specifically limit-
¶14 The interpretation proffered by Smith
would render that portion of the definition of
ANALYSIS
¶10 In the MCA, it is
1278
Vol. 85 — No. 15 — 5/24/2014
“private carrier” describing “transportation . . .
incidental to or in furtherance of any commercial
enterprise of such person, other than transportation,” superfluous. Although the Legislature’s
choice of the word “includes” to introduce this
portion of the definition of private carrier is
perhaps less than ideal,9 we decline to interpret this portion in a manner that would render it entirely vain and useless. Rather, we
conclude that, pursuant to the above principles of statutory interpretation, and pursuant
to the doctrine of ejusdem generis,10 the specific enumeration of transportation undertaken “incidental to,” and “in furtherance of” a
commercial enterprise, limits the broad class of
“any person engaged in transportation upon
public highways, of persons or property, or both,
but not as a motor carrier,” to the class of nonmotor-carrier transportation of persons or property on public highways that is related in some
meaningful way to a commercial enterprise.
¶15 In addition, only “private carriers operating vehicles having a gross registered weight
of greater than 26,000 pounds and not operating exclusively within the limits of an incorporated city or town in this state” are regulated
under the MCA. 47 O.S.2011 § 230.24(A)(1).
¶16 The Oklahoma Administrative Code
(OAC) similarly provides:
No intrastate private carrier, utilizing
equipment with an actual weight, registered weight or combination weight or
GVWR/GCWR in excess of 26,000 pounds
when the trailer’s GVWR is greater than
10,000 pounds, shall operate upon any
street, road, public highway or dedicated
public thoroughfare of this State for the
transportation of property without first
obtaining from the Commission a license
as provided in this Section.
OAC 165:30-15-4(a). See Mize v. Liberty Mut. Ins.
Co., 393 F. SupP.2d 1223, 1227 (W.D. Okla. 2005)
(private carriers weighing 26,000 pounds or
less are not subject to regulation under the MCA,
but the 26,000-pound limitation does not apply
to motor carriers).
¶17 Regarding the weight of the vehicle,
Smith asserts it is undisputed the truck “had a
GVWR of 27,500 pounds, as listed by the
manufacturer.”11 In support, Smith has attached
a photograph of a vehicle information plate with
the same vehicle identification number as the
one typed in the traffic collision report.12 The
photograph clearly provides: “Gross Vehicle
Vol. 85 — No. 15 — 5/24/2014
Weight For This Vehicle 27500.” Shelter does not
dispute the fact that the truck “had a GVWR of
27,500 pounds, as listed by the manufacturer,”
and we conclude there is no genuine dispute
that the truck had a “gross registered weight of
greater than 26,000 pounds ….” 47 O.S.2011 §
230.24(A)(1).13
¶18 However, Breeden’s activity was not
incidental to or in furtherance of a “commercial
enterprise,” which is defined in the MCA as
“all undertakings entered into for private gain
or compensation, including all industrial pursuits, whether the undertakings involve the
handling of or dealing in commodities for sale
or otherwise.” Id. § 230.23(12). It is undisputed
that Breeden was using the truck to transport
shingles from his home to a dump site as part
of putting a new roof on his own home.14
Although Breeden may have saved money on
his roofing bill by transporting his own shingles, we conclude the transportation of his own
shingles to the dump site was not incidental to,
in furtherance of, or otherwise meaningfully
related to a commercial enterprise for private
gain or compensation as intended by the MCA.
Because Breeden was neither a motor carrier
nor a private carrier at the time of the accident,
the MCA is inapplicable. Consequently, the
minimum limit of liability insurance coverage
is the lesser amount pursuant to § 7-324 for
motor vehicles generally
CONCLUSION
¶19 The insurance policy at issue in this case
provides that, “regardless of the limit of liability shown in the Declarations,” when an accident occurs while the vehicle is being operated
by an individual who merely has permission or
general consent to use it, as occurred here, the
limits of liability “will be the minimum limits
mandated by any applicable . . . financial
responsibility law.” Based on our review of the
record and applicable law, we conclude the
MCA does not apply because Breeden was neither a motor carrier nor a private carrier at the
time of the accident. Therefore, the applicable
minimum limit of liability insurance coverage
is found in 47 O.S.2011 § 7-324 for motor vehicles generally. Consequently, we reverse the
trial court’s Order, and remand this case with
directions to the trial court to enter an order
granting summary judgment to Shelter.
¶20 REVERSED AND REMANDED WITH
DIRECTIONS.
1279
1. R. at Tab 3, p. 8.
2. R. at Tab 7, pp. 2-3.
3. Smith states in her summary judgment motion that this agreement between Smith and Shelter occurred “[a]s part of the settlement”
with Davis and Breeden. R. at Tab 8, p. 1.
4. Supp. R. at Exhibit D (p. 20 of the policy).
5. Smith asserts in her motion for summary judgment that Breeden
had permission to use the truck, and Shelter admits Davis “had no
objection to his son Steve’s best friend [Breeden] using the truck for his
own personal use.” R. at Tab 9, p. 9.
6. Shelter states in its summary of the case in the petition in error
that “[t]he sole issue is whether the minimum financial responsibility
limits on [the truck] . . . are $25,000/50,000 as Shelter contended or
$350,000 as [Smith] contended.”
7. R. at Tab 13, p. 13.
8. Section 230.23(6) further provides:
[T]he provisions of the [MCA] shall not apply to the following
vehicles and equipment when such vehicles and equipment are being
used for the following:
a. taxicabs and bus companies engaged in the transportation of
passengers and their baggage, not operated between two or
more cities and towns, when duly licensed by a municipal corporation in which they might be doing business,
b. any person or governmental authority furnishing transportation for school children to and from public schools or to and from
public-school-related extracurricular activities under contract
with, and sponsored by, a public school board; provided, that
motor vehicles and equipment operated for the purposes shall
qualify in all respects for the transportation of school children
under the Oklahoma School Code and the rules of the State
Board of Education adopted pursuant thereto.
c. transport trucks transporting liquefied petroleum gases intrastate which are owned or operated by a person subject to and
licensed by the Oklahoma Liquefied Petroleum Gas Regulation
Act, and
d. transportation of livestock and farm products in the raw state,
when any of such commodities move from farm to market or
from market to farm on a vehicle or on vehicles owned and operated by a bona fide farmer not engaged in motor vehicle transportation on a commercial scale[.]
9. The word including “is sometimes misused for namely. But it
should not be used to introduce an exhaustive list, for it implies that
the list is only partial.” Bryan A. Garner, A Dictionary of Modern Legal
Usage 431-32 (2d ed. 1995).
10. Ejusdem generis is “[a] canon of construction holding that when
a general word or phrase follows a list of specifics, the general word or
phrase will be interpreted to include only items of the same class as
those listed.” Black’s Law Dictionary (9th ed. 2009). The Oklahoma
Supreme Court has stated as follows:
We have held that the doctrine of ejusdem generis applies when (1)
a statute contains a specific enumeration; (2) the members of the
enumeration suggest a class; (3) the class is not exhausted by the
enumeration; (4) a general reference supplementing the enumeration is made, usually following the enumeration; and (5)
there is not clearly manifested an intent that the general term be
given a broader meaning than the doctrine requires. In other
words, the statute must display a syntactical relationship of the
specific to the general, with a series of specific words defining a
class followed (or sometimes preceded) by a catchall referent
that determines “how extensively the act . . . [is] intended or
should reasonably be understood to apply.”
Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 19, 139 P.3d 873,
878 (footnotes omitted).
11. R. at Tab 8, p. 4.
12. See Supp. R. at Exhibit E (corrected), and R. at Tab 8, Exhibit A.
13. Although Shelter does not dispute this fact in its response to the
motion for summary judgment, but merely asserts it is irrelevant, we
note that in Davis’s deposition, he answers in the negative when
asked, “Would you agree with me that the gross vehicle weight rating
of [the truck] was in excess of 26,000 pounds?” However, we conclude
Davis’s opinion in his deposition that the “gross vehicle weight rating”
of the truck is not in excess of 26,000 pounds does not create a genuine
dispute of fact on the issue of whether the gross registered weight of
the truck was greater than 26,000 pounds because the fact is supported
by the uncontested vehicle information plate of the truck. That is,
based on the uncontested vehicle information plate, we conclude there
is no genuine dispute that the truck has a “gross registered weight of
greater than 26,000 pounds” pursuant to § 230.24(A)(1). The evidentiary materials introduced indicate there is no “substantial controversy
1280
as to [this] material fact and that this fact is in the movant’s favor.” Ross
v. City of Shawnee, 1984 OK 43, ¶ 7, 683 P.2d 535, 536. In addition,
because we conclude, infra, that Breeden was not a private carrier
because his activity was not connected to a commercial purpose, we
need not determine whether a dispute exists as to whether the activity
was exclusively within the limits of an incorporated city or town pursuant to § 230.24.
14. Shelter notes “Breeden was personally going to be responsible
for removing the debris of his old shingles off of his property. He was
borrowing the truck from his best friend Steve to use for his own personal use in getting the shingles from his property to a dump site,”
citing Breeden’s deposition. R. at Tab 9, p. 9. Breeden states in his
deposition, “I was reroofing my house” and “needed something to put
[the shingles] in and haul them to the dump with.” R. at Tab 8, Exhibit
G, pp. 19-20. It is also undisputed the truck was not operated across
state lines, was not used for farming operations, and was not tagged as
a farm vehicle.
2014 OK CIV APP 43
ASHLEY PAGET GRUENWALD, Petitioner/
Appellee, vs. WILLIAM KEITH
GRUENWALD, Respondent/Appellant.
Case No. 111,722. March 21, 2014
HONORABLE CARL FUNDERBURK, JUDGE
REVERSED
Ashley Paget Gruenwald, Jones, Oklahoma,
Pro Se,
Todd Alexander, THE ALEXANDER LAW
FIRM, PLLC, Tulsa, Oklahoma, for Respondent/Appellant.
Kenneth L. Buettner, Judge:
¶1 Respondent/Appellant William Keith
Gruenwald (Husband) appeals from the trial
court’s order directing him to pay costs and
attorney fees incurred by Petitioner/Appellee
Ashley Paget Gruenwald (Wife) in Husband’s
emergency custody proceeding. The record
does not show that the trial court found the
information provided by Husband was false or
that the trial court made a decision in reliance
on such false information, as required to make
an award of attorney fees under 43 O.S.2011
§107.4. We reverse.
¶2 The record shows the parties were
divorced by a Decree of Dissolution filed
November 28, 2011. The instant proceeding
began when Husband filed his Application for
Ex-Parte Emergency Custody Orders February
28, 2013. Husband alleged an emergency existed based on his belief Wife had transported the
children while she was intoxicated, had allowed
an unlicensed minor to operate a vehicle with
the children present, had given a beer can to
one of the children, had driven with the children while they were unrestrained, and had
Vol. 85 — No. 15 — 5/24/2014
announced she planned to move the children
to another city. Husband attached affidavits
from witnesses to Wife’s alleged conduct. Husband sought an emergency order changing
custody from Wife to him and allowing Wife
supervised visitation.
¶3 The court docket sheet indicates that on
the same day, Husband and Wife appeared,
with counsel, for a hearing at which the court
denied the application for ex-parte emergency
custody, but ordered Wife to wear an ankle
monitor for alcohol until the next court date.
The docket sheet indicates the court directed
Wife to pay for the monitor “subject to reallocation.” The court set the matter for another hearing March 5, 2013.
¶4 Wife filed her response March 4, 2013.
She denied Husband’s allegations and asserted the affidavits attached to his motion were
false and misleading. She requested an order
for Husband to pay the costs of the proceeding pursuant to 43 O.S.2011 §107.4(B). The
record indicates the hearing set for March 5,
2013 was reset for March 7, 2013.
¶5 Husband filed his Dismissal Without
Prejudice March 6, 2013. The docket sheet
shows that on March 7, 2013, Wife appeared
with counsel and Husband’s counsel appeared
without Husband. The court ordered Wife’s
ankle monitor to be removed. The court further
directed Husband to pay for the ankle monitor
($70) within 30 days and to pay Wife’s reasonable attorney fees in the emergency proceeding
($2,125) within 60 days. An order reflecting
these rulings was filed April 3, 2013, from
which Husband appeals.
¶6 The statute on which the trial court relied
in ordering Husband to pay Wife’s costs and
fees is 43 O.S.2011 §107.4, which provides
(emphasis added):
A. In a court proceeding concerning child
custody or visitation, a motion for an emergency custody hearing shall include an
independent report, if available, to include
but not be limited to, a police report or a
report from the Department of Human Services, that demonstrates that the child is in
surroundings which endanger the safety of
the child and that if such conditions continue, the child would likely be subject to
irreparable harm. If there is no such report,
the motion shall include a notarized affidavit from an individual with personal
knowledge that the child is in surroundVol. 85 — No. 15 — 5/24/2014
ings which endanger the safety of the child
and that not granting the motion would
likely cause irreparable harm to the child.
Upon receipt of the motion for emergency
custody with supporting documentation,
the court shall have seventy-two (72) hours
to conduct a hearing. If the court fails to
conduct a hearing within such time, the
movant may present such motion to the
presiding judge of the judicial district, who
shall conduct an emergency custody hearing within twenty-four (24) hours of receipt
of the motion.
B. If the court finds that any relevant information provided to the court upon which the court
relied to make its emergency custody decision to
be false, the court shall assess against the movant
all costs, attorney fees, and other expenses
incurred as a result of such emergency custody
hearing. The movant shall pay all such costs,
fees and expenses within thirty (30) days.
Failure to make such payment shall be
grounds for contempt, punishable by six (6)
months in the county jail, a fine not to exceed
One Thousand Dollars ($1,000.00), or both
such imprisonment and fine.
Husband first argues the trial court denied his
right to due process by granting fees and costs
without notice and an opportunity to be heard,
because Wife did not file an application for
fees. Husband asserts that before a judgment
may include fees, a party must file an application showing the fees requested are reasonable,
citing 12 O.S.2011 §696.4. That section provides
that a civil judgment may include fees, but if it
does not, a party seeking them must file an
application. Here, Wife asked for an award of
fees in her response to Husband’s emergency
filing and the order resolving this matter, the
order directing the removal of the ankle monitor, included an award of fees. We find no support in §696.4 for a requirement that Wife file a
separate application for fees, nor do we find
Husband did not receive due process on the
record here.
¶7 Husband next argues the trial court erred
in awarding fees under §107.4 where Husband
dismissed his application and the trial court
made no finding that Husband’s supporting
affidavits were false. Wife counters that Husband’s emergency pleading constituted bad
faith or oppressive conduct, which the trial
court retains inherent authority to sanction.
Wife contends Husband’s dismissal the day
1281
before the hearing showed he knew his allegations were false.1
¶8 In this case, the trial court found only that
the fees expended were reasonable. The statute
plainly requires a finding that relevant material, on which the court relied to make its decision, was false. Here, the trial court made no
decision on Husband’s emergency application
(apart from ordering Wife to wear an ankle
monitor until the next hearing) and made no
finding that the affidavits supporting Husband’s application were false. Oklahoma follows the American Rule, in which each party
bears his own attorney fees in the absence of a
specific statute or contract. Eagle Bluff, L.L.C. v.
Taylor, 2010 OK 47, ¶16, 237 P.3d 173. Statutes
authorizing an award of attorney fees must be
strictly construed. Id. The record here does not
support an award of fees under §107.4 because
Personal Injury
Workers’ Compensation
Social Security Disability
these two elements have not been met. The
trial court also made no finding that Husband’s
actions constituted bad faith litigation conduct
warranting sanctions under the court’s inherent authority. Because the order from which
Husband appeals does not include the findings
necessary to support an award of fees under
§107.4, we REVERSE.
JOPLIN, P.J., and HETHERINGTON, V.C.J.,
concur.
Kenneth L. Buettner, Judge:
1. The language of §107.4(B) is analogous to provisions in the Oklahoma Pleading Code allowing sanctions for frivolous pleadings. See 12
O.S.2011 §2011 and §2011.1. However, §107.4 provides no 21 day “safe
harbor” in which an offending pleading may be amended or withdrawn before it may be the basis of a sanctions award. Here, Husband
dismissed his emergency custody application a week after filing it. We
do not hold that dismissal of the application deprives the trial court of
authority to award fees under §107.4(B), but only that a finding of falsity is required.
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[email protected]
1-800-426-4563 • 405-232-6490
Hightower Building • 105 N. Hudson, Suite 100
Oklahoma City, OK 73102
1282
OIDS is an Equal Opportunity Employer
Vol. 85 — No. 15 — 5/24/2014
CLASSIFIED ADS
SERVICES
SERVICES
BRIEF WRITING, APPEALS, RESEARCH AND DISCOVERY SUPPORT. Eighteen years experience in civil
litigation. Backed by established firm. Neil D. Van
Dalsem, Taylor, Ryan, Schmidt, Van Dalsem & Williams PC, 918-749-5566, [email protected].
Want To Purchase Minerals AND OTHER
OIL/GAS INTERESTS. Send details to: P.O. Box 13557,
Denver, CO 80201.
OF COUNSEL LEGAL RESOURCES — SINCE 1992 —
Exclusive research & writing. Highest quality: trial and
appellate, state and federal, admitted and practiced
U.S. Supreme Court. Over 20 published opinions with
numerous reversals on certiorari. MaryGaye LeBoeuf
405-728-9925, [email protected].
EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL
Fitzgerald Economic and Business Consulting
Economic Damages, Lost Profits, Analysis, Business/
Pension Valuations, Employment, Discrimination,
Divorce, Wrongful Discharge, Vocational Assessment,
Life Care Plans, Medical Records Review, Oil and Gas
Law and Damages. National, Experience. Call Patrick
Fitzgerald. 405-919-2312.
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
Board Certified
Diplomate — ABFE
Life Fellow — ACFEI
Arthur D. Linville
Court Qualified
Former OSBI Agent
FBI National Academy
405-736-1925
DO YOU OR YOUR CLIENTS HAVE IRS PROBLEMS?
Free consultation. Resolutions to all types of tax problems. Our clients never meet with the IRS. The Law
Office of Travis W. Watkins PC. 405-607-1192 ext. 112;
918-877-2794; 800-721-7054 24 hrs. www.taxhelpok.com.
INTERESTED IN PURCHASING PRODUCING &
NON-PRODUCING Minerals; ORRI; O & G Interests.
Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; 405755-7200; Fax 405-755-5555; email: [email protected].
Appeals and litigation support
Expert research and writing by a veteran generalist
who thrives on variety. Virtually any subject or any
type of project, large or small. NANCY K. ANDERSON, 405-682-9554, [email protected].
Creative. Clear. Concise.
BUSINESS VALUATIONS: Marital Dissolution * Estate, Gift and Income Tax * Family Limited Partnerships * Buy-Sell Agreements * Mergers, Acquisitions,
Reorganization and Bankruptcy * SBA/Bank required.
Dual Certified by NACVA and IBA, experienced, reliable, established in 1982. Travel engagements accepted.
Connally & Associates PC 918-743-8181 or bconnally@
connallypc.com.
Vol. 85 — No. 15 — 5/24/2014
CONTRACT LEGAL SERVICE – Lawyer with highest rating and with 30+ years’ experience on both
sides of the table is available for strategic planning,
legal research and writing in all state and federal trial
and appellate courts and administrative agencies.
Admitted and practiced before the United States
Supreme Court. Janice M. Dansby, 405-833-2813,
[email protected].
MEDIATION or EXPERT WITNESS ON REAL ESTATE
and OIL/GAS TITLES – KRAETTLI Q. EPPERSON.
Available as a Mediator or as an Expert, for litigation or
appeals on Real Estate and Oil/Gas Title matters. Over
thirty years of experience in title examination and title
litigation. OCU Adjunct Law Professor (Oklahoma
Land Titles). OBA Real Property Law Section Title Examination Standards Committee Chair. General Editor
of Vernon’s Oklahoma Forms 2d: Real Estate. Interested
in unusual and complex title issues. Many papers presented or published on real estate and oil/gas matters,
especially title issues. Visit www.EppersonLaw.com, &
contact me at [email protected] or 405-848-9100.
FOREIGN CORRUPT PRACTICES ACT/ANTI-BRIBERY/ANTI-CORRUPTION/EXPORT CONTROL LEGAL SERVICES - Former GC of multinational public
and private companies in energy, energy services, manufacturing, construction and technology industries is
available to provide legal services for captioned subjects.
Lawyer with highest rating, Fortune 500 clients and over
30 years of experience in U.S and foreign anti-corruption/anti-bribery regulations/trade compliance and export control; has advised, developed and delivered tailored FCPA, foreign anti-bribery, Export Control, OFAC,
EAR, ITAR policies/procedures and training; conducted
investigations and negotiated with government entities.
Former Temporary Oklahoma Appeals Court Judge, and
Guest lecturer on International Law at the University of
Tulsa School of Law 2010-2013. Contact me at [email protected] or 918-630-2440.
OFFICE SPACE
OFFICE SPACE FOR LEASE one block north of the
federal courthouse. Rent all inclusive with phone,
parking, and receptionist. Call 405-239-2726 for more
information.
LUXURY OFFICE SPACE – One office available for
lease in the Esperanza Office Park near NW 150th and
May in OKC. Fully furnished reception area, receptionist, conference room, complete kitchen, fax, high speed
internet, building security, free parking, $870 per
month. Please call Gregg Renegar 405-285-8118.
1283
OFFICE SPACE
POSITIONS AVAILABLE
EXECUTIVE OFFICE SUITES. Two blocks from District
& Federal Courthouses. Receptionist, phones, copier,
internet, and cable provided. Six established attorneys
available for referrals on a case-by-case basis. Midtown
Plaza location. 405-272-0303.
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].
Office Space – MidTown Law Center
Historic atmosphere in restored 1926 building for
solo or small firm lawyers. Rent includes: phone, fax,
long distance, internet, parking, library, kitchen
privileges, on site storage, two conference rooms and
receptionist. Enjoy collegiality with civil/trial/
commercial attorneys
229-1476 or 204-0404
IF YOU ARE AN ATTORNEY who is looking for a clean
and professional office space to rent, contact us. We are
an established CPA firm located in a Professional Office
Park near 33rd and Kelly Avenue in Edmond, OK. Total
office space is 1,780 sf and the common areas include
conference room, restroom, kitchen, client waiting area.
Your dedicated office space would be 18x12 and another one is 13x10. All utilities paid including internet service. Call 405-514-6451.
POSITIONS AVAILABLE
OKLAHOMA PARDON AND PAROLE BOARD seeks
Paralegal with 3 to 5 years experience with Administrative Law, Government Law, Appellate work and Employment Law desirable but not required. Proficient
with Word and Excel and excellent writing skills. We
are seeking an individual who has good computer and
organizational abilities, excellent interpersonal skills
and is detail oriented. The candidate will assist the
General Counsel with offender litigation, administrative rule promulgation, revocations and pardons among
other duties. We offer State benefits and competitive
salary. Email résumé, cover letter and references to:
[email protected].
LARGE DOWNTOWN OKLAHOMA CITY LAW
FIRM seeks Legal Assistant to fill a position with our
established Intellectual Property practice group. Prior
experience as a legal assistant and excellent word processing and organizational skills are required. Previous
experience as an intellectual property legal assistant is
a plus. The starting salary is negotiable based on experience. Generous benefits package includes paid parking, medical and life insurance. Other benefits include
401(k), profit sharing, dental insurance, long term disability, and a cafeteria plan for uninsured medical and
day care expenses. Please send résumé, references and
salary requirements to Judy Cross at judy.cross@
mcafeetaft.com.
ASSOCIATE ATTORNEY, 0-3 years experience. Enid
law firm seeking associate with an interest in business
and civil litigation and willing to relocate to the Enid
area. Send résumé, cover letter, transcript and writing
sample to [email protected].
1284
LEIDOS ENGINEERING LLC is seeking a commercial
contracts representative for its Oklahoma City, Okla.,
office. Job Responsibilities: Supports a high-energy, exciting organization focusing on professional services
contracting with domestic and international commercial entities and state and local governments and a
small portion of federal government services; Interacts
with management and performs tasks in the preparation of contract documents, including contract negotiations and interaction with clients in accordance with
company policies and procedures, applicable laws, client
requirements, and sound business judgment; Engages in
contract negotiations with all types of customers and
their representatives, including counsel; Administers
certain contract functions, such as record keeping and
dissemination or approval of information regarding
contract status, modifications and negotiations; Coordinates contracting functions with company project
managers and clients; Assists in the review and analysis of contract documents to determine contractual obligations during the performance of a project; Prepares
special reports as required. Qualifications/ Job Requirements: BA or BS in business or a related field; A
minimum of four years related commercial contracting experience; Graduate study in contracting or business administration or legal degree desirable; Demonstrated ability to readily manage rapidly shifting work
priorities and be a significant contributor; Ability to interface well with clients (internal and external) and
work in a fast-paced environment; Excellent verbal and
written communication skills; Must have strong word
processing skills, preferably using Microsoft Corporation’s Microsoft Word®; Strong analytical skills; Selfmotivated, organized, and detail-oriented. TO APPLY
DIRECTLY ONLINE, PLEASE VISIT: http://jobs.
leidos.com/job/Oklahoma-City-Contracts-SpecialistJob-OK-73101/ 58269400/.
ENID LAW FIRM, EZZELL & SHEPHERD, P.L.L.C.,
seeks associate attorney with 1-5 years of experience in
civil matters. Additional experience with estate planning and other transactional matters, including title
work, would be a plus. Salary commensurate with experience. Please send résumé and writing sample to
[email protected].
SMALL NORTH OKC AV RATED FIRM seeks attorney
with a minimum of 5 years of experience in civil litigation. Submit résumé and writing sample to “Box A,”
Oklahoma Bar Association. P.O. Box 53036, Oklahoma
City, OK 73152.
Vol. 85 — No. 15 — 5/24/2014
POSITIONS AVAILABLE
POSITIONS AVAILABLE
RIGGS ABNEY NEAL TURPEN ORBISON & LEWIS
an AV-rated, regional full-service firm, seeks associate
with 2+ years experience for a full-time position involving family law and general civil litigation for its
Tulsa office. Applicants should submit résumé and
cover letter via email to [email protected], regular mail to 502 West 6th Street, Tulsa, OK 74119, or via
www.riggsabney.com. Salary is commensurate with
experience. All applications are confidential. EOE.
DEPUTY GENERAL COUNSEL; Salary - $71,611 $82,254. Ideal candidate will perform the following
functions for the Oklahoma Health Care Authority: litigation for the agency in State and Federal court, administrative hearings, third party liability and estate
recovery, contract drafting and termination, employment law, HIPAA and Open records, general administrative policy rulemaking, copyright and trademarks,
In House counsel for agency clients. Qualifications: Active membership in the State Bar of Oklahoma; 8 years’
experience in the practice of law; Legal experience with
health care insurance and/or experience processing
administrative law cases preferred. TO APPLY VISIT:
www.okhca.org/jobs. Submit application & questionnaire by the deadline: May 30th. OK Health Care Authority; Attn: Human Resources; 4345 N. Lincoln Blvd.;
Oklahoma City, OK 73105; [email protected]. EOE.
Reasonable accommodation may be made for individuals with disabilities.
PARALEGAL; $41,833.00 Annually. Perform paralegal
and administrative duties for attorneys assigned to
provider audit appeals, including legal research, preparing and editing documents, docketing and witness
preparation. Prepare legal papers and correspondence
of a legal nature such as motions, briefs, and other
pleadings. Organizes and files pleadings and other
documents. File documents in state and federal court.
Qualifications: 4 years paralegal or legal assistant experience; OR Associate’s Degree and 2 years of paralegal
or legal assistant experience; Bachelor’s degree and
strong research and writing skills preferred; Paralegal
or Legal Assistant formal training or certification; and/
or experience drafting and filing legal documents preferred; Medicaid or other healthcare experience preferred. TO APPLY VISIT: www.okhca.org/jobs. Submit
application & questionnaire by the deadline: May 30th.
OK Health Care Authority; Attn: Human Resources;
4345 N. Lincoln Blvd.; Oklahoma City, OK 73105; [email protected]. EOE. Reasonable accommodation
may be made for individuals with disabilities
NORTHWEST OKLAHOMA LAW FIRM has an immediate opportunity for an associate attorney with 0-5 years
of experience. Candidates must be motivated, willing to
work in a variety of capacities, detail and task oriented
and play nice with others. If your goal is to live and work
in God’s Country, legally defined as the territory North
of Hwy 51 and West of Hwy 81 we are interested in visiting with you. Our firm is looking for a candidate seeking
gainful employment with an interest in living and working in Northwest Oklahoma with practice desires and/
or experience in oil and gas title work, family law, legal
research and writing and litigation. In addition to a great
work atmosphere the firm provides benefits. Contact us
at: [email protected].
SMALL OKC PLAINTIFF PERSONAL INJURY FIRM
needs to hire an attorney and a legal assistant with strong
writing, typing, people, and computer skills. Forward
résumé and salary history to oklahomalawfirmresume@
gmail.com. Insurance defense lawyers welcome.
THE OKLAHOMA INSURANCE DEPARTMENT has
an opening in the Legal Division for a Senior Attorney
in the Oklahoma City office. The salary range is $65,000
to $75,000 (non-negotiable). Submit résumés by Friday,
May 9, 2014 to: Oklahoma Insurance Department at
[email protected] Go to www.oid.ok.gov
for a complete listing of job requirements.
Vol. 85 — No. 15 — 5/24/2014
THE LEFLORE COUNTY DISTRICT ATTORNEY’S
OFFICE is seeking an Assistant District Attorney for
the Poteau Office. Primary responsibilities include the
criminal prosecution of all domestic violence and sexual assault offenses, felony and misdemeanor, provide
training and advice to local law enforcement on cases
involving domestic violence and sexual assault, and
perform other duties as assigned. Salary DOE. Applicant must have a J.D. from an accredited law school;
legal experience in criminal law and prior courtroom
experience preferred. Must be a member of good standing with the Oklahoma State Bar. Applicants may submit a résumé, postmarked no later than June 9, 2014 to
the following address: District Attorney’s Office, 100 S.
Broadway, Room 300, Poteau, OK 74953, 918-647-2245,
Fax: 918-647-3209.
TITLE ATTORNEY NEEDED. Growing Tulsa Title Company is seeking to add an experienced Attorney to its
staff. Job description will be issuing title opinions and
performing curative work. Position will offer the flexibility of working from home if needed. Compensation will
be based on experience. Range will be 55-90k. Would
also entertain contracting title opinion’s to outside counsel. Application deadline will be June, 15, 2014.
EXPERIENCED LITIGATION ASSOCIATE (2-5 years)
needed by AV-rated Tulsa insurance and transportation
defense firm. Very busy, fast-paced office offering competitive salary, health/life insurance, 401k, etc. Candidates with strong academic background and practical
litigation experience, please send a cover letter, résumé
and writing sample (10 pg. max) in confidence via
email to [email protected].
AV-RATED LITIGATION FIRM seeking associate with
1 to 5 years experience. Must have strong research and
writing skills. Salary and bonuses commensurate with
experience. Send résumé and writing sample to Tisdal
& O’Hara, PLLC at 3847 S. Boulevard, Suite 300, Edmond, OK 73013.
1285
POSITIONS AVAILABLE
FOR SALE
AV RATED OKC/TULSA insurance defense firm seeks
associate with 5 to 10 years litigation experience in bad
faith/civil litigation for OKC office. Salary and benefits
commensurate with experience. Send résumé to Wilson, Cain & Acquaviva, 300 N.W. 13th Street, Suite 100,
Oklahoma City, OK 73103.
SUCCESSFUL SOLE PRACTITIONER LAW PRACTICE in OKC metro. Focus on estate planning, asset
protection, collections, bankruptcy, general business
law. Seller will work with buyer for smooth transition
of repeat clients. Revenues over $230k in 2013 with
strong net margin. Seller financing with appropriate
down payment. For more information, contact representative at 405-826-8166.
DEFENSE COUNSEL - The Oklahoma Indigent Defense System (OIDS) has an attorney position open in
our Non-Capital Trial Division, Mangum office. Salary
for this position is commensurate with qualifications
and within agency salary schedule range. Excellent
benefits. Any interested applicant should submit a letter of interest and résumé by June 4, 2014 to Angie Cole,
Chief Administrative Officer, O.I.D.S., P.O. Box 926,
Norman, OK 73070 or by email to [email protected].
gov. OIDS is an Equal Opportunity Employer.
LOST WILL
LOOKING FOR A WILL AND/OR LIVING TRUST:
Family is looking for the attorney who assisted in the
legal affairs of Kiowana C. Lamkin who passed away
on the 21st day of March, 2014. Possibly in the Tulsa
area. If you have information, please contact Bruce G.
Straub, 918-286-8001.
LOOKING FOR THE WILL OF Joann Still of Bethany,
Ok, Oklahoma County executed after 2009. CONTACT:
Rita Gibson 918-775-6322, [email protected] or
102277 S. 4600 Rd., Sallisaw, Ok, 74955.
CLASSIFIED INFORMATION
CLASSIFIED RATES: $1 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box word count
must include “Box ___, Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152.” Display classified ads with
bold headline and border are $50 per inch. See www.okbar.org
for issue dates and display rates.
DEADLINE: Theme issues 5 p.m. Monday before publication;
Court issues 11 a.m. Tuesday before publication. All ads must
be prepaid.
SEND AD (email preferred) stating number of times to be published to:
[email protected], or
Emily Buchanan, Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
Publication and contents of any advertisement is not to be
deemed an endorsement of the views expressed therein, nor
shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement
notices must be clearly non-discriminatory.
DO NOT STAPLE BLIND BOX APPLICATIONS
1286
Vol. 85 — No. 15 — 5/24/2014
Vol. 85 — No. 15 — 5/24/2014
1287
You are not alone.
Topic:
Thursday, June 5
The Emotional Challenges
of the Solo Practitioner
Oklahoma City Location
6-7:30 p.m.
Office of Tom Cummings
701 N.W. 13th St.
Oklahoma City, OK
Tulsa Location
6-7:30 p.m.
University of Tulsa
College of Law
John Rogers Hall
3120 E. 4th Pl.
Rm. 206, Tulsa, OK
Contact Kim Reber @ 405-840-0231 • [email protected]
L AW YERS HELPING L AW YERS
A SSISTANCE PROGR AM

May 24 - Oklahoma Bar Association

Transcription

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