Vol 87 No 13 (May 14) - Oklahoma Bar Association
Transcription
Vol 87 No 13 (May 14) - Oklahoma Bar Association
Volume 87 u No. 13 u May 14, 2016 6/0 A GUIDE TO 42 U.S.C. § 1983 PRINCIPLES AND LITIGATION Program Planner/Moderator: David W. Lee, Collins, Zorn & Wagner, P.C. AVA IL A B LE May 19, 2016 9 a.m. - 3 p.m. OKLAHOMA BAR CENTER, OKC $150 for early-bird registrations received with payment at least four, full business days prior to the first seminar date; $175 for registrations received with payment within four, full business days of the first seminar date. Walk-ins $200. To receive a $10 discount for the live onsite program, register online at http://www.okbar.org/members/CLE. Continental breakfast and networking lunch included in registration. You may also register for the live webcast (pricing varies). Program approved for 6 hours MCLE credits including 0 ethics. semina the most During this seminar, recent cases and principles involving 42 U.S.C. Section 1983 and the litigation of these issues in federal and state court will be discussed. This seminar will be useful for those who are presently Section 1983 litigators as well as those who are interested in getting involved with 1983 cases on both the plaintiff and defense side. The presenters are experts on federal constitutional For more information go to: www.okbar.org/members/CLE 906 The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2016 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org. BAR Center Staff John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Joe Balkenbush, Ethics 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; 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 Manni Arzola, Gary Berger, Debbie Brink, Laura Brown, Tanner Condley, Cheryl Corey, Nickie Day, Ben Douglas, Dieadra Florence, Johnny Marie Floyd, Matt Gayle, Marley Harris, Brandon Haynie, Suzi Hendrix, Misty Hill, Darla Jackson, Debra Jenkins, Lemitchel King, Jaime Lane, Durrel Lattimore, Mackenzie McDaniel, Renee Montgomery, Sharon Orth, Wanda F. Reece, Tracy Sanders, Mark Schneidewent, Laura Stone, Jan Thompson, Krystal Willis & Roberta Yarbrough Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 FAX 405-416-7001 Continuing Legal Education 405-416-7029 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 www.okbar.org Vol. 87 — No. 13 — 5/14/2016 Volume 87 u No. 13 u May 14, 2016 JOURNAL STAFF BOARD OF EDITORS JOHN MORRIS WILLIAMS Editor-in-Chief [email protected] MELISSA DELACERDA Stillwater, Chair CAROL A. MANNING, Editor [email protected] RENÉE DEMOSS, Tulsa LEMITCHEL KING Communications Specialist [email protected] MACKENZIE MCDANIEL Advertising Manager [email protected] LAURA STONE Communications Specialist [email protected] LUKE ADAMS, Clinton PATRICIA A. FLANAGAN Yukon AMANDA GRANT, Spiro ERIN MEANS, Moore SHANNON L. PRESCOTT Okmulgee MARK RAMSEY, Claremore LESLIE TAYLOR, Ada JUDGE ALLEN J. WELCH Oklahoma City OFFICERS & BOARD OF GOVERNORS GARVIN A. ISAACS, President, Oklahoma City; PAUL D. BRUNTON, Vice President, Tulsa; LINDA S. THOMAS, President-Elect, Bartlesville; DAVID A. POARCH JR., Immediate Past President, Norman; JOHN W. COYLE III, Oklahoma City; JAMES R. GOTWALS, Tulsa; KALEB K. HENNIGH, Enid; JAMES R. HICKS, Tulsa; ALISSA HUTTER, Norman; JAMES L. KEE, Duncan; JOHN W. KINSLOW, Lawton; JAMES R. MARSHALL, Shawnee; SONJA R. PORTER, Oklahoma City; KEVIN T. SAIN, Idabel; ROY D. TUCKER, Muskogee; JOHN M. WEEDN, Miami; BRYON J. WILL, Oklahoma City, Chairperson, OBA Young Lawyers Division 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 the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla. Subscriptions $60 per year except for law students registered with the OBA who may subscribe for $30 and senior members who may subscribe for $25; all active members included in dues. Single copies: $3 Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. The Oklahoma Bar Journal 907 CONQUER YOUR MOUNTAIN BURNOUT DEPRESSION ANXIETY SUBSTANCE ABUSE RELATIONSHIP CHALLENGES LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM NO COST • 24-HOUR CONFIDENTIAL ASSISTANCE 800.364.7886 WWW.OKBAR.ORG/LHL 908 The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 Oklahoma Bar Association table of contents May 14, 2016 • Vol. 87 • No. 13 page 910 Index to Court Opinions 912 Opinions of Supreme Court 938 Opinions of Court of Criminal Appeals 944 Sovereignty Symposium Agenda 948 Calendar of Events 949 Opinions of Court of Civil Appeals 988 Disposition of Cases Other Than by Publication Vol. 87 — No. 13 — 5/14/2016 The Oklahoma Bar Journal 909 Index to Opinions of Supreme Court 2016 OK 42 CYNTHIA ROBINSON, Petitioner, v. FAIRVIEW FELLOWSHIP HOME FOR SENIOR CITIZENS, INC. and STONETRUST COMMERCIAL INSURANCE CO. and THE WORKERS’ COMPENSATION COMMISSION, Respondents. Case No. 113,735........... 9 1 2 2016 OK 43 DEPARTMENT OF HUMAN SERVICES and COMPSOURCE OKLAHOMA, Petitioners, v. NANCY V. BRUCE and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 112,070.......................................................................................................... 9 1 6 2016 OK 44 Teresa Lynn Allen, Appellant, v. John J. Harrison, D.O. Appellee. No. 111,877.......... 9 1 9 2016 OK 45 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. KYLE EDWARD GOERKE, Respondent. SCBD 6382................................................ 9 2 3 2016 OK 46 JAMES LOYD, Petitioner, v. MICHELIN NORTH AMERICA, INC., and THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS, Respondents. Case No. 112,754............................................................................................................................................ 9 2 5 2016 OK 47 JACQUELYN TESS MURLIN, Plaintiff/Appellee, v. JIMMY LEE DIAL PEARMAN, JR., Defendant/Appellant. No. 113,193..................................................................... 9 2 9 2016 OK 48 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. GEORGE MICHAEL LEWIS, Respondent. SCBD No. 6384..................................... 9 3 3 2016 OK 49 REVOCATION OF CERTIFICATES OF CERTIFIED SHORTHAND REPORTERS SCAD-2016-36............................................................................................................................... 9 3 4 2016 OK 50 REINSTATEMENT OF CERTIFICATES OF CERTIFIED SHORTHAND REPORTERS SCAD-2016-37............................................................................................................... 9 3 5 2016 OK 51 IN RE INITIATIVE PETITION NO. 409, STATE QUESTION NO. 785, OKLAHOMA GROCERS ASSOCIATION and RON EDGMON, Petitioners, v. RETAIL LIQUOR ASSOCIATION OF OKLAHOMA and BRYAN KERR, Respondents. Case No. 114,792............................................................................................................................................ 9 3 5 Index to Opinions of Court of Criminal Appeals 2016 OK CR 9 BRUCE CONWAY STEWART, JR., Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. F-2015-282........................................................................................... 9 3 8 Index to Opinions of Court of Civil Appeals 2016 OK CIV APP 20 JULIE GWEN SANFORD and S.D., Petitioners/Appellees, vs. BLAISE ALLYN SANFORD, Respondent/Appellant. Case No. 113,669.................................... 9 4 9 2016 OK CIV APP 21 IN THE MATTER OF THE ADOPTION OF B.T.S., a Minor Child: TAMERA N. SMITH, Appellant, vs. TERESA NIXON and QUAHANA NIXON, Appellees. Case No. 113,714............................................................................................................... 9 5 1 2016 OK CIV APP 22 FIRST NATIONAL BANK IN MARLOW, OKLAHOMA, Plaintiff/ Appellee vs. DAVID W. BICKING and TAMMY M. BICKING, Defendants/Appellants. Case No. 113,741........................................................................................................................ 9 6 1 910 The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 2016 OK CIV APP 23 ROGER DAVIS, Plaintiff/Appellant, vs. THE OKLAHOMA DEPARTMENT OF CORRECTIONS and ROBERT PATTON, as director, Defendants/ Appellees. Case No. 113,773............................................................................................................... 9 6 5 2016 OK CIV APP 24 ROBERT JUDSON RADFORD, Petitioner/Appellant, vs. MELISSA JENNINGS RADFORD, Respondent/Appellee. Case No. 113,908.............................................. 9 7 1 2016 OK CIV APP 25 KENNETH E. SOULE, Petitioner, vs. CRANE LOGISTICS &/or JAMES CRANE &/or CRANE CARTAGE FREIGHT SYSTEMS &/or WILLIAM & BARBARA O’CONNELL &/or ASHTON LEASING and THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS, Respondents, and WILDCAT FREIGHT INC., Respondent, and UNKNOWN OR NOT SPECIFIED &/or TRAVELERS INDEMNITY CO. OF CONNECTICUT &/or NO INSURANCE, Insurance Carrier. Case No. 113,996........................................................................................................................... 9 7 4 2016 OK CIV APP 26 IN THE MATTER OF THE ADOPTION OF K.L.C., A MINOR CHILD: TIMOTHY JAMES METROVICH, Petitioner/Appellant, vs. VINCENT LEE COUGHRAN, Respondent/Appellee. Case No. 114,212.............................................................. 9 7 9 2016 OK CIV APP 27 THE KEY FINANCE, INC., Plaintiff/Counter-Defendant/Appellee, vs. DJ KOON, Defendant/Counter-Plaintiff/Appellant. Case No. 112,853............................... 9 8 0 2016 OK CIV APP 28 SHERRINE LYNN O’BRIEN, Petitioner/Appellee, vs. CHRIS ALLEN BERRY, Defendant/Appellant. Case No. 113,216............................................................ 9 8 3 Vol. 87 — No. 13 — 5/14/2016 The Oklahoma Bar Journal 911 Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement) 2016 OK 42 CYNTHIA ROBINSON, Petitioner, v. FAIRVIEW FELLOWSHIP HOME FOR SENIOR CITIZENS, INC. and STONETRUST COMMERCIAL INSURANCE CO. and THE WORKERS’ COMPENSATION COMMISSION, Respondents. Case No. 113,735. April 19, 2016 ON APPEAL FROM THE WORKERS’ COMPENSATION COMMISSION ¶0 Petitioner Cynthia Robinson was denied workers’ compensation benefits after an administrative law judge of the Workers’ Compensation Commission found that her injury was not in the course and scope of employment under 85A O.S. Supp. 2013 § 2(13). Petitioner argued that § 2(13) was an unconstitutional special law and unconstitutionally denied her a remedy for her injury. The ALJ declined to address Petitioner’s constitutional arguments, and the Workers’ Compensation Commission affirmed. Petitioner appealed, and in an unpublished decision, the Court of Civil Appeals affirmed, declining to address Petitioner’s constitutional arguments and suggesting she seek a declaration in the district court regarding the statute’s constitutionality. We granted certiorari review in the case. Upon consideration, we hold that the Workers’ Compensation Commission has the power to determine whether a provision of Title 85A is being unconstitutionally applied to a particular party in a proceeding before the Commission, and the Commission’s decision is subject to review by this Court. COURT OF CIVIL APPEALS’ OPINION VACATED; WORKERS’ COMPENSATION COMMISSION ORDER VACATED; CAUSE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Bob Burke, Oklahoma City, Oklahoma, for Petitioner. James G. Devinney, Ponca City, Oklahoma, for Petitioner. 912 W. Jeffrey Dasovich, Oklahoma City, Oklahoma, for Respondents. Patrick R. Wyrick, Mithun S. Mansinghani, Office of the Attorney General, Oklahoma City, Oklahoma. V. Glenn Coffee, Denise K. Davick, Glenn Coffee & Associates, Oklahoma City, Oklahoma, for Amicus Curiae State Chamber of Oklahoma. PER CURIAM Facts & Procedural History ¶1 Petitioner Cynthia Robinson worked as a Nurse’s Aide for Employer Fairview Fellowship Home for Senior Citizens, and was injured on February 6, 2014.1 Petitioner requested a finding of injury to her neck, left shoulder, and left knee, as well as temporary total disability. Employer admitted that she was an employee on the date of the accident but denied that her injury arose out of and in the course of her employment under 85A O.S. Supp. 2013 § 2(13). Petitioner argued that if her injury was not compensable, then § 2(13) was an unconstitutional special law and unconstitutionally denied her a remedy for her injury. ¶2 The ALJ found Petitioner’s injury was not in the course and scope of employment, and thus, not compensable. The ALJ declined to address Petitioner’s constitutional arguments stating: “The Workers’ Compensation Commission is an administrative agency rather than a court and is without power to decide the Claimant’s Constitutional arguments that this statute does not provide an adequate remedy under the Administrative Workers’ Compensation Act.”2 The ALJ cited as authority Dow Jones & Co., Inc. v. State ex rel. Oklahoma Tax Commission, 1990 OK 6, 787 P.2d 843. ¶3 Petitioner appealed to the Workers’ Compensation Commission, and the Commission affirmed the decision of the ALJ, stating that “claims that legislation is unconstitutional cannot be determined by law or this Commission en Banc. Those claims can only be decided by a court of competent jurisdiction.”3 Petitioner again appealed, and in an unpublished decision, the Court of Civil Appeals affirmed. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 Although the court found that Petitioner had “preserved [her] constitutionality argument before the [Workers’ Compensation Commission],” the court declined to address such constitutional arguments and suggested Petitioner “seek a declaration in district court regarding the statute’s constitutionality.” Petitioner Robinson petitioned this Court for certiorari review of the COCA opinion, specifically on the issue of whether this Court and COCA have the jurisdiction to decide the constitutionality of the provisions of Title 85A “even though the Workers’ Compensation Commission, as an executive administrative agency, does not have such authority.”4 ¶4 After Petitioner filed her Petition for Certiorari in this Court, the Attorney General filed notice of his intent to provide his views concerning the authority of the Workers’ Compensation Commission to address constitutional issues and the ability of the courts to review those decisions. On January 13, 2016, this Court invited the Attorney General to file his brief on such issues, and the parties were given ten days to respond to the Attorney General’s filing. The Attorney General filed his brief on the issues on February 10, 2016, arguing that the Workers’ Compensation Commission has the authority to address the constitutionality of a statute as it is being applied in an individual proceeding, subject to judicial review by this Court. Neither party tendered a response to the Attorney General’s brief. On February 29, 2016, this Court granted Petitioner Robinson’s Petition for Certiorari. The Workers’ Compensation Commission Has the Power to Determine Whether a Provision of Title 85A is Being Unconstitutionally Applied to a Particular Party in a Commission Proceeding ¶ 5 The Oklahoma Administrative Workers’ Compensation Act creates the Workers’ Compensation Commission, which is “an executive agency of the State of Oklahoma . . . .” 85A O.S. Supp. 2013 § 19(A). Limits on the authority of an executive administrative agency to resolve constitutional questions — the question before us in this case — are based upon the constitutional principle of separation of powers. Article 4, § 1 of the Oklahoma Constitution provides: The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as proVol. 87 — No. 13 — 5/14/2016 vided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.5 Article 7, §1 goes on to provide: § 1. Courts in which judicial power vested. The judicial power of this State shall be vested in the Senate, sitting as a Court of Impeachment, a Supreme Court, the Court of Criminal Appeals, the Court on the Judiciary, the State Industrial Court, the Court of Bank Review, the Court of Tax Review, and such intermediate appellate courts as may be provided by statute, District Courts, and such Boards, Agencies and Commissions created by the Constitution or established by statute as exercise adjudicative authority or render decisions in individual proceedings. . . .6 ¶6 Adjudicative authority — the “authority to hear and determine forensic disputes” — ”is the exclusive domain of the judiciary.”7 Consistent with Art. 7, § 1, this Court has on numerous occasions held that “[w]hen an administrative board acts in an adjudicative capacity, it functions much like a court.”8 Such proceedings are quasi-judicial in nature — a “term applied to the action of public administrative officers or boards which investigate facts or ascertain the existence of facts; draw conclusions from them as a basis for official action; and exercise discretion of a judicial nature in connection with and incidental to the administration of matters entrusted to or assigned to the officers or board.”9 ¶7 Under Art. 7, § 1, the Commission, as a Commission “established by statute,” may “exercise adjudicative authority or render decisions in individual proceedings.”10 Pursuant to such, under the AWCA, the Commission and its ALJs have the power “to hear and determine claims for compensation and to conduct hearings and investigations and to make such judgments, decisions, and determinations as may be required by any rule or judgment of the Commission” or as “authorized by law.” 85A O.S. Supp. 2013 § 22(C-D). Section 72(A)(4) provides that “[a]dministrative law judges are required to make specific, on-the-record findings of ultimate facts responsive to the issues shaped by the evidence as well as conclusions of law on which its judgment is to be rested.” 85A O.S. Supp. 2013 § 72(A)(4) (emphasis added). Section 27(A) of Title 85A provides: The Oklahoma Bar Journal 913 A. The Workers’ Compensation Commission shall be vested with jurisdiction over all claims filed pursuant to the Administrative Workers’ Compensation Act. All claims so filed shall be heard by the administrative law judge sitting without a jury. The Commission shall have full power and authority to determine all questions in relation to claims for compensation under the provisions of the Administrative Workers’ Compensation Act. The Commission, upon application of either party, shall order a hearing. Upon a hearing, either party may present evidence and be represented by counsel. Except as provided in this act, the decision of the administrative law judge shall be final as to all questions of fact and law. The decision of the administrative law judge shall be issued within thirty (30) days following the submission of the case by the parties. The power and jurisdiction of the Commission over each case shall be continuing and it may, from time to time, make such modifications or changes with respect to former findings or orders relating thereto if, in its opinion, it may be justified.11 ¶8 The above-highlighted language mirrors statutory language contained in Oklahoma’s first “Workmens Compensation Law” enacted in 1915 and administered by the State Industrial Commission. The State Industrial Commission was also given “full power and authority to determine all questions in relation to the payment of claims for compensation under the provisions of this Act,”12 and an award or order of the Commission was final as to questions of fact and all questions of law not appealed to the Oklahoma Supreme Court.13 Although not a court of record,14 the State Industrial Commission was an “administrative fact finding board with certain judicial powers [and] a quasi judicial body”15 “clothed with certain judicial authority.”16 ¶9 The “full power and authority to determine all questions in relation to claims for compensation” necessarily includes questions of law.17 A question of law includes a constitutional question raised by the interpretation and application of a particular workers’ compensation statute to a particular party.18 Thus, the Commission or its ALJs when exercising adjudicative authority may properly refuse to apply a statute to a particular party before it, if the Commission or its ALJs find that such applica914 tion would be repugnant to the Constitution. To hold otherwise would force parties before the Commission to immediately appeal a decision of the Commission before a final adjudication of the claim on the merits.19 In addition, Petitioners are forced to carry the additional financial burden of filing fees, costs of transcripts, preparation of the record, attorney fees, and the costs of legal representation, only to have this Court remand the case to the Commission to decide a question it could have decided in the first instance. This is not the “’prompt, certain, and inexpensive’” remedy envisioned by the adoption of the workers’ compensation system as a result of the industrial bargain. Adams v. Iten Biscuit Co., 1917 OK 47, ¶ 16, 162 P. 938, 944 (quoting Jensen v. S. Pac. Co., 109 N.E. 600, 603 (N.Y. 1915)). ¶10 “The benefit from having the administrative process initially address a constitutional issue among other issues within the agency’s purview is that the process may result in factfinding or interpretation and application of statutory processes that may obviate the need to adjudicate a constitutional question.” N.J. Dep’t of Envtl. Prot. v. Huber, 63 A.3d 197, 218 (N.J. 2013). This Court does not generally, in the exercise of our appellate jurisdiction, “make first instance determinations on disputed questions of fact or law.”20 “’A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established.’” In re Fichera v. City of New York, 145 A.D.2d 482, 484 (N.Y. App. Div. 2d 1988) (emphasis added) (citing Matter of Dozier v. New York City, 130 A.D.2d 128, 135 (N.Y. App. Div. 2d 1987)). ¶11 The Court of Civil Appeals’ suggestion that Petitioner file a declaratory judgment action in the district court is contrary to the AWCA, which specifically provides that “[a]ll appeals or disputes arising from actions of the Commission shall be governed by provisions of this act and the Commission shall not be subject to the provisions of the Oklahoma Administrative Procedures Act, except as provided in this act.” 85A O.S. Supp. 2013 § 19(F). Thus, 75 O.S. 2011 § 307, which allows for the filing a Petition for Declaratory Review in the district court under the Administrative Procedures Act, does not apply to cases pending before the Workers’ Compensation Commission. In fact, the exclusive remedy provision of 85A O.S. Supp. 2013 § 5 specifically bars The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 injured workers from pursuing relief in the district court. Thus, we conclude that the Workers’ Compensation Commission has the power to determine whether a provision of Title 85A is being unconstitutionally applied to a particular party in a proceeding before the Commission.21 A Decision of the Workers’ Compensation Commission is Subject to Review by this Court ¶12 Of course, the power of the Commission and its ALJs to determine the constitutionality of a provision of Title 85A is limited. Although the Commission, when acting in an adjudicative capacity functions much like a court, the Commission is an executive branch agency lacking the full power of the judiciary.22 Article 7, § 1 grants the Commission only that judicial power necessary to “render decisions in individual proceedings,” meaning the Commission only has the power to resolve, on a case-bycase basis, questions regarding the constitutional or unconstitutional application of a statute to a particular party in a proceeding before it, and the Commission’s decision is binding only on the parties in that case.23 The Legislature may not confer upon the Commission the power to determine the facial constitutionality of a statute, and the Commission may not assume that power — such power resides in the judiciary alone.24 ¶13 The Commission may not issue decisions that conflict with the rulings of this Court, and the Commission’s decisions are subject to review by this Court. This Court is the ultimate authority on the interpretation of the laws of this State,25 and in addition to our constitutional authority to review a decision of the Commission, we are also statutorily tasked with reviewing a “judgment, decision or award of the Commission.” 85A O.S. Supp. 2013 § 78(C). Finally, the Workers’ Compensation Commission may only address issues that arise in claims within their jurisdiction and that involve the application of the Workers’ Compensation Act. Under Title 85A, the Commission has the “exclusive responsibility and duty to carry out the provisions of this act.” 85A O.S. Supp. 2013 § 19(A) (emphasis added). ¶14 The Court of Civil Appeals clearly has the power to review a decision of the Commission when such a case has been properly and timely appealed to this Court and assigned to the Court of Civil Appeals by this Court.26 In Vol. 87 — No. 13 — 5/14/2016 addition, just as this Court has a duty to review the constitutionality of a challenged legislative enactment when presented with a justiciable case or controversy, so too does the Court of Civil Appeals.27 Conclusion ¶15 We conclude that the Workers’ Compensation Commission has the power to determine whether a provision of Title 85A is being unconstitutionally applied to a particular party in a proceeding before the Commission.28 The Court of Civil Appeals’ opinion in this case is vacated. The Commission’s decision in this case is vacated and the cause is reversed and remanded for a new hearing before the assigned ALJ. COURT OF CIVIL APPEALS’ OPINION VACATED; WORKERS’ COMPENSATION COMMISSION ORDER VACATED; CAUSE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS ¶16 Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Colbert and Gurich, JJ., concur. ¶17 Winchester and Taylor, JJ., concur in result. PER CURIAM 1. Petitioner Robinson was on her lunch break when she slipped and fell on an icy sidewalk located approximately five feet from the exit of her Employer’s business. She injured her neck, left shoulder, and left knee in the accident. Transcript of Hearing at 6-7. We do not address in this opinion whether the ALJ correctly interpreted 85A O.S. Supp. 2013 § 2(13) in determining that Petitioner was not in the course and scope of her employment when she fell. 2. Record on Appeal at 11. 3. Transcript of Appeal Before the Commissioners at 3. 4. Petition for Certiorari at 3. 5. Okla. Const. art. 4, § 1 (emphasis added). 6. Okla. Const. art. 7, § 1 (emphasis added). 7. Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 13 & n.30, 130 P.3d 213, 220 & n.30. 8. Bowen v. State ex rel. Okla. Real Estate Appraiser Bd., 2011 OK 86, ¶ 15, 270 P.3d 133, 137; see also Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16, ¶¶ 7-8, 732 P.2d 438, 441-42. Although the Oklahoma Constitution forbids encroachment by one department upon the powers or functions of another, this Court has also recognized that there “can be blending of the three powers of government and that it is not always possible to contain the three branches of government into ‘water tight compartments’. This blending of powers is especially prevalent in the area of administrative law where administrative agencies and officials, in exercising the powers delegated to them, typically exercise all three types of powers and are responsive to some degree of control by each of the constitutional departments.” In re Okla. Dep’t of Trans. for Apprvoal of Not to Exceed $100 Million Okla. Dep’t of Trans. Grant Anticipation Notes, Series 2002, 2002 OK 74, ¶ 10, 64 P.3d 546, 550 (emphasis added) (internal citations omitted). 9. Jackson v. Indep. Sch. Dist. No. 16 of Payne Cnty., 1982 OK 74, n.20, 648 P.2d 26, 31 n.20 (emphasis added). 10. Okla. Const. art. 7, § 1. 11. 85A O.S. Supp. 2013 § 27(A) (emphasis added). 12. 1915 Okla. Sess. Laws 480. 13. 1915 Okla. Sess. Laws at 481. Such statutory language has remained in the workers’ compensation statutes since 1915. See 85 O.S. 2011 § 303(J) (“The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers’ Compensation Code. . . . Except The Oklahoma Bar Journal 915 as provided in Section 340 of this title, the decision of the Court shall be final as to all questions of fact and law.”); 85 O.S. Supp. 2010 § 26(B) (“The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers’ Compensation Act. . . . The decision of the Court shall be final as to all questions of fact, and except as provided in Section 3.6 of this title, as to all questions of law.”); 85 O.S. 2001 § 26(B) (“The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers’ Compensation Act. . . . The decision of the Court shall be final as to all questions of fact, and except as provided in Section 3.6 of this title, as to all questions of law.”); 85 O.S. Supp. 1994 § 26(B) (“The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers’ Compensation Act. . . . The decisions of the Court shall be final as to all questions of fact, and except as provided in Section 3.6 of this title, as to all questions of law.”); 85 O.S. Supp. 1986 § 26(B) (“The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers’ Compensation Act. . . . The decision of the Court shall be final as to all question of fact, and except as provided in Section 3.6 of this title, as to all questions of law.”); 85 O.S. Supp. 1977 § 26 (“The Court shall have full power and authority to determine all questions in relation to payment of claims for compensation under the provisions of the Workers’ Compensation Act. . . . The decision of the Court shall be final as to all questions of fact, and except as provided in Section 10 of the Workers’ Compensation Act, as to all questions of law.”); 1923 Okla. Sess. Laws 125 (“The Commission shall have full power and authority to determine all question in relation to payment of claims for compensation under the provisions of this Act. . . . The decision of the Commission shall be final as to all question of fact, and except as provided in Section 7297, of this Article, as to all questions of law.”); 1919 Okla. Sess. Laws 21 (“The commission shall have full power and authority to determine all question in relation to the payment of claims for compensation under the provisions of this Act. . . . The decision of the Commission shall be final as to all questions of fact, and except as provided in Section 13 of this Article as to all questions of law.”). 14. In 1959, the State Industrial Commission was “officially named and designated the State Industrial Court” and “designated and confirmed as a court of record, with respect to any matter within the limits of its jurisdiction” and judges of the States Industrial Court were given “the powers and prerogatives of the judges of the other courts of record of this state.” 1959 Okla. Sess. Laws 397-98. The State Industrial Court was renamed the Workers’ Compensation Court in 1977. 85 O.S. Supp. 1977 § 2. It remained so named until it was again renamed the Court of Existing Claims with the passage of the AWCA in 2013. 85A O.S. Supp. 2013 § 400. 15. Special Indem. Fund v. Quinalty, 1949 OK 17, ¶ 5, 203 P.2d 713, 714. 16. Special Indem. Fund v. Prewitt, 1948 OK 104, ¶ 10, 205 P.2d 306, 311. 17. See 85A O.S. Supp. 2013 § 27(A) (emphasis added). 18. The State Industrial Commission frequently determined questions of law including, for example, whether it had jurisdiction to enter a decision in a particular proceeding. See, e.g., M.V. Stilwell Trucking Contractor v. Patterson, 1939 OK 217, ¶ 13, 89 P.2d 766, 768 (determining whether employment was hazardous was a jurisdictional question to be “inquired into by the Industrial Commission”); J.E. Mabee, Inc. v. Singleton, 1932 OK 802, 17 P.2d 438 (determining whether a settlement award could be set aside for fraud was properly within the Commission’s jurisdiction to reopen a case). 19. “Settled case law defines a reviewable decision in a compensation case as one which ‘makes or denies an award’ or otherwise constitutes ‘a final determination of the rights of the parties.’” Hermetics Switch, Inc. v. Sales, 1982 OK 12, ¶ 3, 640 P.2d 963, 965. Although the award in this case was technically appealable because the ALJ denied compensation after he determined Petitioner’s injury did not fall within the statutorily defined “course and scope of employment,” such a determination did not end the inquiry. The ALJ’s analysis should have included a determination of whether the application of such statute unconstitutionally denied Petitioner benefits — a determination specifically requested by Petitioner. Only after such a determination was the decision a “final determination of the rights of the parties” and subject to appellate review. 20. Okla. Pub. Emps. Ass’n v. Okla. Dep’t of Cent. Servs., 2002 OK 71, ¶ 21, 55 P.3d 1072, 1081. 21. As the Attorney General points out, the “Oklahoma Constitution requires all state officials ‘to solemnly swear (or affirm) that I will support, obey, and defend the Constitution of the United States, and the Constitution of the State of Oklahoma.’” Brief of the Attorney Gen- 916 eral at 11. Requiring the Commission or its ALJs to administer a statute even when, as a matter of law, the statute is being unconstitutionally applied requires the Commissioners and the ALJs to knowingly violate their oath of office as well as the rights of at least one of the parties. Id. at 12. 22. See Okla. Const. art. 4, § 1. The executive branch is “invested primarily with the function of executing the law,” enforcing the law, or appointing agents charged with the duty of enforcing the law. Fent v. Contingency Review Bd., 2007 OK 27, ¶ 12 & n.34, 163 P.3d 512, 521 & n.34. 23. Okla. Const. art. 7, § 1. In addition, “finding a statute or regulation unconstitutional as applied to a specific party does not affect the facial validity of that provision.” Travelscape, L.L.C. v. S.C. Dep’t of Revenue, 705 S.E. 2d 28, 39 (S.C. 2011). See also Tulsa Cnty. Deputy Sheriff’s Fraternal Order of Police, Lodge No. 188 v. Bd. of Cnty. Comm’r of Tulsa Cnty, 2000 OK 2, 995 P.2d 1124 (Opala, J., dissenting ¶¶ 9-10 (citing St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, ¶ 10, 782 P.2d 915, 917; State ex rel. Tharel v. Bd. of Comm’rs of Creek Cnty., 1940 OK 468, syl. 1, 107 P.2d 542, 544 syl. 1; Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995)). 24. See Okla. Const. art. 4, § 1. 25. Okla. Const. art. 7, § 4. Cline v. Okla. Coal. for Reprod. Justice, 2013 OK 93, n.7, 313 P.3d 253, 257 n.7 (“The Supreme Court of Oklahoma ‘alone has the power to authoritatively determine the validity or invalidity of a statute.’”) (quoting State ex rel. York v. Turpen, 1984 OK 26, ¶ 10, 681 P.2d 763, 767); see also Thrarel, 1940 OK 468, ¶ 8, 107 P.2d at 547. 26. Article 7, § 5 provides that “[t]he jurisdiction, powers, duties and procedures of intermediate appellate courts shall be as provided by rules of the Supreme Court until otherwise provided by statute.” Okla. Const. art. 7, § 5. Section 30.1 of Title 20 provides that the Court of Civil Appeals “shall have the power to determine or otherwise dispose of any cases that are assigned to it by the Supreme Court. Its decisions, when final, shall neither be appealable to the Supreme Court nor be subject to reexamination by another division of the Court of Civil Appeals or by the Judges of that Court sitting en banc” except that “[a] decision of the Court of Civil Appeals may be reviewed by the Supreme Court if a majority of its Justices direct that a writ of certiorari be granted, and the Supreme Court may, by order, recall a case from the Court of Civil Appeals.” 20 O.S. 2011 § 30.1. 27. See Coates v. Fallin, 2013 OK 108, ¶ 3, 316 P.3d 924, 925. The Court of Civil Appeals’ determination in this case that it could not “address the constitutionality issued raised by Claimant” was error. We note that at least two other divisions of the Court of Civil Appeals have addressed the constitutionality of 85A O.S. Supp. 2013 § 2(13), the same provision of Title 85A at issue in this case. See Morse v. Custom Facility Servs. et al., Case No. 113,759 (Sept. 11, 2015) (Division I) (unpublished) (holding that 85A O.S. Supp. 2013 § 2(13) was not an unconstitutional special law within the meaning of Art. 5, § 46 of the Oklahoma Constitution); Pina v. Am. Piping Inspection Inc. et al., Case No. 113,899 (Sept. 17, 2015) (Division IV) (unpublished) (holding that 85A O.S. Supp. 2013 § 2(13) did not violate Art. 2, § 6 of the Oklahoma Constitution). Certiorari review was granted in Pina, Case No. 113,899, on February 22, 2016, and the case is now pending before this Court. 28. The Attorney General asks us to overrule Dow Jones, 1990 OK 6, 787 P.2d 843. We need not reach that issue today as that case specifically involved the power of the Oklahoma Tax Commission to declare a statute unconstitutional, and that issue is not before us. 2016 OK 43 DEPARTMENT OF HUMAN SERVICES and COMPSOURCE OKLAHOMA, Petitioners, v. NANCY V. BRUCE and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 112,070. April 19, 2016 ON APPEAL FROM THE WORKERS’ COMPENSATION COURT ¶0 Claimant Nancy Bruce injured her neck on the job on May 14, 2012, and sought workers’ compensation benefits. Although her Employer admitted the injury, the trial court denied compensability finding Claimant’s The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 employment was not the major cause of her injury. Claimant appealed, and a three-judge panel reversed and found that Claimant’s employment was the major cause of the injury to her neck. Employer appealed, and the Court of Civil Appeals reversed the order of the three-judge panel. Upon review, we hold that the three-judge panel’s decision finding Claimant’s work-related injury on May 14, 2012, was the major cause of Claimant’s neck injury is not against the clear weight of the evidence. COURT OF CIVIL APPEALS’ OPINION VACATED; CAUSE REVERSED AND REMANDED WITH INSTRUCTIONS TO REINSTATE THE ORDER OF THE THREEJUDGE PANEL FILED JULY 29, 2013 E.W. Keller, Keller, Keller & Dalton P.C., Oklahoma City, Oklahoma, for Respondent Nancy V. Bruce. Heather A. Lehman Fagan, Fellers, Snider, Blankenship, Bailey & Tippens, P.C., Oklahoma City, Oklahoma, for Petitioners Department of Human Services and Compsource Oklahoma. GURICH, J. ¶1 Claimant Nancy Bruce worked as a Certified Nurse’s Assistant, or “residential life staff aide,” for the Oklahoma Department of Human Services for twenty-six years where her duties consisted primarily of lifting clients, cleaning them up, feeding them, and daily care. On May 14, 2012, Claimant was injured while lifting one such client. Upon attempting to lift the client, Claimant stated she felt immediate pain in her neck and a shocking and tearing sensation which shot down her left arm and into her thumb. Claimant reported the injury to her supervisor and went to the emergency room where it was recommended she follow up with a pain management doctor. Claimant then went to Dr. Cheng, who performed an examination and x-rays. Dr. Cheng also ordered an MRI of Claimant’s cervical spine. The MRI indicated “severe left neuroforaminal narrowing from disc herniations at C5-6 and C6-7.”1 Dr. Cheng referred her to a neurosurgeon, Dr. Pollard, who saw Claimant on June 11, 2012. Around this time, Employer’s insurance carrier appointed a case manager, D.J. Smith, to Claimant’s case. Although Dr. Pollard recommended a two-level anterior cervical fusion, and scheduled Claimant’s surgery on four separate occasions, the case manager for Employer’s insurance company refused to authorize any further treatment. Vol. 87 — No. 13 — 5/14/2016 ¶2 The case manager then sent Claimant to Dr. Snell of Neuroscience Specialists, who evaluated Claimant on November 1, 2012. Dr. Snell found Claimant was temporarily totally disabled and recommended a “C5-6, C6-7 ACDF with allograft bone and plating.”2 Apparently still unhappy with the surgical recommendation of Dr. Snell, the insurance company then deposed Dr. Snell, wherein the attorney for the insurance company presented Dr. Snell with Claimant’s testimony from a prior trial in 2006 wherein Claimant testified to having pain and numbness in her left arm. Although Dr. Snell was fully aware of Claimant’s previous injuries, as reported in his evaluation of November 1, 2012, Dr. Snell stated that unless he was able to reexamine Claimant, he could no longer say with a reasonable degree of medical certainty that the major cause of Claimant’s injury was the May 14, 2012 injury. ¶3 On February 7, 2013, Dr. Snell reevaluated Claimant. Dr. Snell specifically asked Claimant about her previous testimony regarding her left arm pain. Dr. Snell’s report from the February 7, 2013 evaluation provides: HISTORY OF PRESENT ILLNESS During the deposition there were some questions about sworn testimony that she had. I questioned her about this today. She tells me that the pain that she was having at the time that she was giving sworn testimony was more of kind of an achy kind of tension pain in the arm and it was not an electric shock kind of pain, which is the kind of pain she had after her work related injury. She also said that the chiropractic had given her significant improvement, and although she did not have complete resolution [sic] there were definitely times between 2009 and her work injury in 2012 where she had potentially months of improvement to the point where she was not really having much arm pain. She said that her chiropractic visit frequency decreased significantly because of that associated improvement. .... CAUSATION She reports to me she had problems with her neck really ever since 9-10 years ago. She also reports that she had some problems with some pain in the left arm which was more kind of a stretching tension kind The Oklahoma Bar Journal 917 of pain and that the chiropractic had significantly helped her with this to the point where she had several periods where she had months where she was not really having any arm pain prior to her work-related injury. She reports that after the 05/14/12 work related injury she started having electric shock type pain in the left arm, which was a new pain she had not experienced before. As such, it would appear that her work-related injury resulted in her symptomatic onset of this electric shock type pain going down the left arm. Certainly, it appears that she has had problems with left arm pain in the past, as noted above. Per her report today, the quality of her left arm pain changed significantly to a neuropathic kind of shocking type pain. It would appear that the onset of the shocking type neuropathic pain was related to her workrelated injury, per her report. The above opinions are based on a reasonable degree of medical certainty.3 Notably, Dr. Snell’s February 7, 2013 evaluation also states: “I had recommended a C5-6, C6-7 ACDF with allograft bone and plating for her at the 11/01/12 visit and I continue to recommend this. . . . She is currently TTD and I will keep her at TTD.”4 ¶4 In addition to Dr. Snell’s evaluation, Claimant was also evaluated by Dr. Wolf on July 30, 2012. Dr. Wolf, who was also aware of Claimant’s previous complaints of pain in her neck, found as follows: The patient was involved in an on-the-job accident on May 14, 2012, while employed by Norce (Oklahoma Department of Human Services). It is my opinion that as a result of this on-the-job accident, the patient has sustained injury to her cervical spine. She continues to have ongoing pain and upper extremity radicular symptoms primarily on the left side, to include weakness of the left arm and weakness in grip strength along with numbness in the thumb. The patient does have significant MRI findings of internal derangement of the cervical spine. She is in need of further neurosurgical consultation. In my medical opinion, the major cause of her injury and ongoing complaints and symptomatology is the accident on May 14, 2012, while employed by Norce (Oklahoma Department of Human Services). She 918 does have objective medical evidence as well as permanent anatomical abnormalities as previously set forth. After taking a history, reviewing the available medical records, and performing a physical examination I find that this patient is temporarily totally disabled from her usual occupation, secondary to this jobrelated injury, from May 14, 2012, and she will continue to be temporarily totally disabled until there is a resolution of her symptoms by additional testing and/or treatment or until in my medical opinion she has reached maximum medical improvement.5 ¶5 On November 19, 2012, Claimant was evaluated, at the insurance carrier’s request, by Dr. Munneke. Although Dr. Munneke opined that the “patient did sustain a strain injury to her cervical spine as a result of her accident on the aforementioned date [May 14, 2012],” he concluded that the “patient’s need for surgery is unrelated to her accident that occurred on the 14th of May 2012.”6 Dr. Munneke found that the surgical recommendation of Dr. Snell was “related to her two prior injuries that occurred in 2003 and 2004.”7 ¶6 Claimant filed a Form 3 with the Worker’s Compensation Court on July 26, 2012. The trial court held a hearing on April 23, 2013, and the Employer stipulated at the hearing that Claimant was involved in a work-related “incident” on May 14, 2012, but argued that such was not the major cause of Claimant’s injuries or need for surgical treatment. Employer contended that all of Claimant’s complaints stemmed from work-related injuries in 2003 and 2004.8 Claimant testified at the hearing and did not deny that she had prior pain in her neck and left arm due to her earlier work-related injuries. ¶7 However, Claimant also testified, consistent with the medical reports introduced, that after the May 14, 2012 injury, the pain in the left side of her neck and down her arm consisted of a “zapping” and “electrical” sensation, which was not a symptom she experienced before the May 2012 injury. In spite of her Employer’s admission of injury, the trial court, in an order filed May 6, 2013, denied compensability. Claimant appealed to a three-judge panel. The panel reversed, in an order filed July 29, 2013, and found that Claimant sustained an on-thejob injury “to the NECK (aggravation of preexisting condition),” and that Claimant’s employment was “the major cause of injury to The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 the NECK and need for surgery.”9 The threejudge panel awarded Claimant temporary total disability benefits and ordered Employer to provide Claimant with reasonable and necessary medical treatment, including surgery. Employer appealed, and the Court of Civil Appeals vacated the order of the three-judge panel and directed the Workers’ Compensation Court to enter an order denying compensability. Claimant petitioned this Court for certiorari review, and we granted review on November 24, 2014. ¶8 A compensable injury under the Workers’ Compensation Code means “any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness. . . .” 85 O.S. 2011 § 308(10)(a). “Major cause” is defined as “more than fifty percent (50%) of the resulting injury, disease or illness.” 85 O.S. 2011 § 308(28). ¶9 Although COCA cited to Dr. Snell’s November 1, 2012 evaluation, and Dr. Snell’s deposition testimony, COCA failed to mention the reevaluation of Claimant by Dr. Snell on February 7, 2013, wherein Dr. Snell continued to assert that Claimant’s work-related injury of May 14, 2012, was the major cause of her injury and continued to recommend that Claimant have surgery. Based upon Dr. Snell’s unshakable opinion, together with other credible medical evidence from treating physicians who saw Claimant on referral from Dr. Snell and objective test findings supporting Claimant’s need for surgery as a result of her most recent on-the-job injury, we conclude that the threejudge panel’s decision finding Claimant’s work-related injury on May 14, 2012, was the major cause of Claimant’s neck injury is not against the clear weight of the evidence. See 85 O.S. 2011 § 340(D); Williams Cos. v. Dunkelgod, 2012 OK 96, ¶ 18, 295 P.3d 1107, 1113. COURT OF CIVIL APPEALS’ OPINION VACATED; CAUSE REVERSED AND REMANDED WITH INSTRUCTIONS TO REINSTATE THE ORDER OF THE THREEJUDGE PANEL FILED JULY 29, 2013 ¶10 Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Colbert and Gurich, JJ., concur. ¶11 Winchester and Taylor, JJ., dissent. GURICH, J. 1. Record on Appeal at 39. 2. Record on Appeal at 31. Vol. 87 — No. 13 — 5/14/2016 3. Record on Appeal at 37-38. 4. Record on Appeal at 37 (emphasis added). 5. Record on Appeal at 40-41 (emphasis added). 6. Resp. Ex. 1, at 4. 7. Id. Dr. Munneke never treated the Claimant, and he was not deposed in this case. His report references certain tests conducted in 2012, the finding of disc herniations at two levels, and evidence of left median nerve entrapment at the wrist. Dr. Munneke agreed that Claimant sustained an injury on May 14, 2012, and needed surgery. He acknowledged a significant amount of treatment and objective testing after the May 14, 2012 injury. His report contains no estimate of when her two discs were herniated. There is no explanation of how she continued to work in the same job between 2004 and 2012 with disc herniations. He then states that she had a nearly normal exam in his office. Yet he paradoxically opines that her current need for surgery is related to her two prior injuries. The opinion of Dr. Snell has considerably more credibility than the opinion of Dr. Munneke. Resp. Ex. 1, at 2-4. 8. Claimant was injured on-the-job in 2003 after being hit in the head by a patient. The injury resulted in three cracked teeth and headaches due to cervical sprain/strain. Claimant filed a workers’ compensation claim — WCC# 2005-00951-R — and sought dental treatment and medical treatment to her neck. The Employer conceded Claimant’s compensability for dental treatment but denied her request for medical treatment to her neck due to an intervening work-related automobile accident on March 1, 2004. The court denied Claimant’s request for medical treatment to her neck due to the intervening automobile accident on April 3, 2006. Claimant did not appeal that order. With regard to the work-related automobile accident on March 1, 2004, Claimant filed a separate workers’ compensation case — WCC# 2004-3458-Y. The case was settled by Joint Petition on December 22, 2004. The Joint Petition found Claimant sustained accidental personal injury arising out of and in the course of her employment to her right leg, left leg, and all body parts known or unknown. In June of 2010, Claimant sought to reopen the WCC# 2005-00951R (the 2003 injury) based on change of condition for the worse to her neck. The Workers’ Compensation Court reopened the case and authorized medical treatment to Claimant’s neck. However, the Court of Civil Appeals reversed and found that the trial court had previously determined that the automobile accident was the intervening cause of the neck injury. Thus, COCA held that “because the second workrelated accident broke the causal nexus to the original injury, any/all necessary treatment to Claimant’s neck is attributable to that second accident alone. A finding that the motor vehicle accident constitutes the intervening cause of the neck injury is tantamount to a finding that the neck injury is not connected to the original 2003 workplace injury.” Okla. Dep’t of Human Servs. v. Nancy Bruce et al., Case No. 109,804, at 7 (Nov. 30, 2012) (unpublished). Claimant did not petition this Court for certiorari review of that opinion, and mandate issued on January 15, 2013. 9. Record on Appeal at 48-49. 2016 OK 44 Teresa Lynn Allen, Appellant, v. John J. Harrison, D.O. Appellee. No. 111,877. April 19, 2016 CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I ¶0 Patient, who accidentally swallowed a nail, brought a medical malpractice action based, inter alia, upon a claim of lack of informed consent against the hospital’s emergency room physician after the physician advised patient to “eat fiber and let the nail pass.” The physician did not, however, disclose the alternative medical options which included endoscopic and surgical removal of the ingested nail. Following severe vomiting, the patient proceeded to a different emergency room. Emergency surgery was performed to remove the nail, and The Oklahoma Bar Journal 919 the patient was treated for a perforated and infected bowel. The trial court, Honorable Brent Russell, granted partial summary judgment in favor of the physician on the issue of informed consent, and the Court of Civil Appeals affirmed. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION Jon Williford, Griffin, Reynolds, and Associates, Oklahoma City, for Appellant. Lane O. Krieger, Wiggins Sewell & Ogletree, Oklahoma City, for Appellee. COLBERT, J. ¶1 This is a medical malpractice case premised in part on the doctrine of informed consent. The issue presented on certiorari review is whether the doctrine of informed consent requires a physician to obtain the patient’s consent before implementing a nonsurgical or noninvasive course of treatment. Inherent in the question presented, is whether a physician — in addition to discussing with the patient treatment alternatives that the physician recommends — should discuss medically reasonable alternatives that the physician does not recommend. Based on the following, this Court answers both questions in the affirmative. BACKGROUND AND PROCEDURAL HISTORY ¶2 Appellant, Teresa Lynn Allen (Allen), swallowed a small nail on June 1, 2009. She went to Duncan Regional Hospital’s emergency room in Duncan, Oklahoma. Appellee, John J. Harrison, D.O., emergency room physician (Physician), examined Allen. Physician ordered an X-ray of Allen’s stomach. The X-ray confirmed the presence of a foreign body in Allen’s stomach, just below the diaphragm. Based on Physician’s assessment and clinical judgment, Physician discharged Allen prescribing: (1) “a high-fiber diet to let the nail pass;” (2) return to the hospital if she had any problems; and (3) follow up with her family doctor in three days. On June 2, 2009, following severe vomiting, Allen went to the emergency room at Southwestern Hospital in Lawton, Oklahoma. That same day, the hospital performed emergency surgery to remove the ingested nail from Allen’s intestines. At that time, Al920 len was treated for a perforated and infected bowel. In addition, Allen endured two additional surgeries to treat the complications that arose from the emergent surgery of June 2, 2009. ¶3 Allen sued Duncan Regional Hospital and Physician for the defendants’ alleged medical negligence and failure to obtain Allen’s informed consent.1 Specifically, Allen contended that Physician failed to disclose the potential risk in letting the nail pass through her digestive system as well as the alternatives to his recommended course of treatment. Had Physician effectively discharged his duty to disclose, Allen would have “chosen the option of no treatment or a different course of treatment.” ¶4 During discovery, Physician admitted that he neither advised Allen of the alternative treatment options — namely, endoscopic or surgical intervention — nor consulted with a surgeon prior to Allen’s discharge. However, Physician testified that he was not qualified to perform an endoscopic or other surgical procedure to extract the nail. Those alternative treatment options, according to Physician, were beyond his field of practice. And, therefore, Physician was not required to advise Allen of those alternatives. ¶5 Physician filed a Motion for Partial Summary Judgment asserting that he was entitled to judgment as a matter of law on Allen’s informed consent claim. Physician contended that under Oklahoma law, a valid informed consent claim is only recognized in cases involving the performance of an affirmative treatment by a defendant physician. But where, as here, Physician relied on his clinical judgment and did not affirmatively treat and cause Allen’s injuries, the elements of informed consent cannot be satisfied. Physician also alleged that Oklahoma law does not require an emergency physician to offer “options” of surgical/ endoscopic treatment outside the emergency department and outside the expertise of an emergency physician. The trial court agreed and granted Physician’s motion, reasoning that, the Court can find no case supporting the doctrine of informed consent where no action was taken by the attending physician. Rather, such doctrine applies when the treatment received causes injury, and alternative procedures were not explained. Plaintiff’s claim is one of negligence based upon Defendant’s failure to appropriately The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 recognize and treat the symptoms presented by Plaintiff. (Emphasis added). Allen unsuccessfully sought reconsideration of the trial court’s ruling granting Physician’s summary judgment request. Allen’s medical negligence claim against Physician, however, proceeded to trial. The jury returned a verdict in favor of Physician and Allen appealed. ¶6 The Court of Civil Appeals affirmed on slightly different grounds. Relying on Smith v. Reisig, M.D., Inc., 1984 OK 56, 686 P.2d 285, the appellate court concluded the doctrine of informed consent is triggered only when a physician provides surgical treatment resulting in the patient’s injury but failed to disclose the viable alternatives to surgery. Allen filed this petition for certiorari review, which this Court granted. STANDARD OF REVIEW ¶7 Upon appellate review, summary judgment will be affirmed only if this Court determines the moving party presented evidentiary materials establishing that uncontroverted facts and all inferences that can be drawn therefrom support only one conclusion — that the moving party is entitled to judgment as a matter of law. See Wathor v. Mut. Assurance Adm’rs, Inc., 2004 OK 2, ¶ 4, 87 P.3d 559, 561; Hadnot v. Shaw, 1992 OK 21, ¶ 25, 826 P.2d 978, 987. However, where a de novo review of the record in the light most favorable to the nonmoving party confirms that no material issues of fact exist, but rather reveals that the trial court misinterpreted the applicable law, summary judgement will be reversed. See, Kluver v. Weatherford Hospital Authority, 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083 (issues of law are reviewed de novo). DISCUSSION ¶8 This Court begins with the premise that “each man [is] considered to be his own master.” Scott v. Bradford, 1979 OK 165, ¶ 9, 606 P.2d 554, 556. A patient’s right of self-decision is only exercised effectively if the patient possesses enough information to enable an informed choice. Id.,¶ 10, 606 P.2d at 557. That is, a patient has the right to make his or her own determination about treatment. With that premise in mind, Oklahoma law forbids a physician to substitute one’s judgment for that of the patient by any form of artifice. Id.,¶ 9, 606 P.2d at 556. This Court’s decision in Scott v. Vol. 87 — No. 13 — 5/14/2016 Bradford rendered almost thirty-six years ago, anchored the doctrine of informed consent in that premise. Id. ¶9 Informed consent is a basic principle sounding in ethics and law that physicians must honor unless the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent. American Medical Association, Code of Medical Ethics: Opinion 8.08 (2006). The linchpin of informed consent is a physician’s duty to inform a patient of the medically reasonable treatment options and their attendant risks. Id. A physician is charged with the obligation to present the medical facts accurately to the patient or his proxy and to make recommendations for management in accordance with good medical practice. In so doing, a physician should disclose all courses of treatment that are medically reasonable under the circumstances. But, a physician is not permitted to “withhold[] any facts which are necessary to form an intelligent consent by the patient to the proposed treatment.” Parris v. Limes, 2012 OK 18, ¶ 7, 277 P.3d 1259, 1263. In fact, to effectively discharge “this duty, a physician is obligated not only to disclose what he intends to do, but to supply information which addresses the question of whether he should do it.” Id. So, “[i]f a physician breaches this duty, [a] patient’s consent is defective, and [the] physician is responsible for the consequences.” Scott, 1979 OK 165, ¶ 10, 606 P.2d at 557. ¶10 A cause of action premised on the lack of informed consent is comprised of three essential elements: (1) non-disclosure, (2) causation, and (3) injury. Scott v. Bradford, 1979 OK 165, ¶ 18, 606 P.2d 554, 558. The full disclosure rule announced in Scott is not without exceptions. Although a physician’s failure to disclose is the first element in maintaining this cause of action, such a duty may be excused when the circumstances so warrant. For instance, disclosure is not required when the risks are common knowledge or known by the patient; “where full disclosure would be detrimental to a patient’s total care and best interest …;” or in cases of an emergency in which the patient or his proxy is unable to determine for himself “whether treatment should be administered …”. Id., ¶ 16, 606 P.2d at 558. ¶11 On appeal, the parties disagree about the interpretation of Scott, and its progeny. The differences between these interpretations come to the fore when a court, as here, must consider a The Oklahoma Bar Journal 921 physician’s duty to obtain a patient’s informed consent regardless of whether the physician is implementing an invasive or noninvasive course of treatment. Allen argues that the doctrine of informed consent is not limited to surgical intervention. Rather, the doctrine applies to a physician’s recommenced course of treatment whether invasive or noninvasive. Physician, however, contends the doctrine does not apply to emergency room physicians. Therefore, to require an emergency room physician to provide surgical/invasive options outside his scope of practice and contrary to his medical judgment would be an expansion of Oklahoma’s informed consent laws. Physician is mistaken. ¶12 The problem with the Physician’s interpretation and the application of the courts below are twofold: (1) it falsely advances the position that a physician must secure a patient’s informed consent only for surgical procedures, not for those that are noninvasive; and (2) it ignores this Court’s expressed pronouncement in Scott, that the scope of a physician’s communication is measured by the “patient’s need to know enough to enable him to make an intelligent choice,” not the physician’s professional standard. See Scott, 1979 OK 165, ¶ 15, 606 P.2d at 558. ¶13 Pursuant to Scott, the informed consent doctrine is predicated on a physician’s duty to disclose. The decisive factor is not the invasiveness of the treatment, but whether the physician provided the patient with enough information that would enable the patient to make an informed choice before subjecting the patient to a recommended course of treatment. As a practical matter, a physician will recommend a course of treatment and a patient generally chooses to adopt the physician’s recommendation. It is well-settled that the ultimate decision rests with the patient. Therefore, physicians do not adequately discharge their obligations by limiting their disclosures to the treatments they recommend or treatments within their scope of practice. ¶14 In Smith v. Reisig, M.D., Inc., a patient filed suit against her physician for lack of informed consent after undergoing a hysterectomy that resulted in injury to her bladder. 1984 OK 56, 686 P.2d 285. The physician’s testimony and other evidence established that hormonal therapy was a viable alternative to the hysterectomy and possibly preferable to the surgery. Id., ¶ 11, 686 P.2d at 288. But, that alter922 native was not disclosed to the patient. This Court found the physician failed to disclose the viable alternatives to the patient and, “that single failure to inform” was a violation of the physician’s obligation to disclose. Id. “If the remaining elements are satisfied such violation gives rise to liability for the results of the treatment.” Id. ¶15 Most recently, in Parris v. Limes, this Court held that an informed consent claim could withstand summary judgment when the patient claimed he would not have undergone multiple invasive tests after the surgical removal of his prostate, had the physician ordering the tests disclosed that the surgical pathology revealed no cancerous cells. 2012 OK 18, 277 P.3d 1259. ¶16 In examining the seminal cases shaping the informed consent doctrine, it is patently clear — a physician has a duty to inform the patient not only of the medically reasonable alternatives the physician recommends, but of medically reasonable alternatives that the physician does not recommend to the patient or disclose. However, here, Physician would have this Court believe that because the factual scenarios out of which the doctrine arose involved some affirmative violation of the patient’s physical integrity, such as the surgical procedures performed in Scott and Smith or the invasive diagnostic tests administered in Parris, a physician’s duty to disclose is somehow limited to only those situations. This Court never intended to restrict a physician’s duty to disclose to only invasive treatments. The doctrine applies equally to invasive, as well as noninvasive, procedures. And, any other interpretation belies the fundamental premise that “each man [is] considered to be his own master.” Scott, 1979 OK 165, ¶ 9, 606 P.2d at 556. At a minimum, Physician should have explained to Allen the associated risks and the alternatives to letting the nail pass through her digestive system along with his reasons for the recommended course of treatment. ¶17 Likewise, Physician’s sole reliance on his clinical judgment as a basis for excusing his obligation to disclose is without merit. As discussed and expressly rejected in Scott, the general rule of the “professional standard of care” in determining what must be disclosed “perpetuate[d] medical paternalism by giving the [medical] profession sweeping authority to decide unilaterally what [was] in the patient’s best interests.” 1979 OK 165, ¶ 13, 606 P.2d at The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 557. That is, a patient was provided information on a need-to-know basis in conformance with the community’s prevailing medical practice. Id. In application, the professional standard would severely limit the protections granted to an injured patient and jeopardize a patient’s right of self-determination. Accordingly, this Court declined to impose the professional standard. Id. The basic right to know and decide is the foundation of the full-disclosure rule. Therefore, a physician’s duty of disclosure must be measured by his patient’s need to know enough information to enable the patient to make an intelligent choice. Id. This duty exists regardless of whether the prescribed treatment is invasive or noninvasive. ¶18 Moreover, Physician’s erroneous assertion that he did not “affirmatively treat” Allen is unavailing. Physician disingenuously attempts to distinguish this case from Scott, Smith, and Parris as those cases involved an “affirmative treatment.” Although the surgeons in Scott and Smith performed hysterectomies; and the physician in Parris administered multiple cancer screenings — here, Physician prescribed a highfiber diet which is an affirmative treatment. Under Oklahoma law, treatment is “the use of drugs, surgery, including appliances, manual or mechanical means, or any other means of any nature whatsoever, for the cure, relief, palliation, adjustment or correction of any human ill . . ..” Okla. Stat. tit. 59, § 731.1(4). Clearly, Physician’s recommended course of treatment to “eat fiber and let the nail pass” falls under the “any other means of any nature whatsoever, for the cure, relief, palliation, adjustment or correction of any human ill ….” Id. ¶19 Physician testified that he made the decision to prescribe a high-fiber diet after reviewing Allen’s X-ray and determining the nail had cleared her diaphragm. Although Physician acknowledged that endoscopic or surgical intervention was a medically reasonable alternative, he withheld this information from Allen as it was beyond his scope of practice and experience. Further, Physician had a duty to disclose the alternative invasive interventions even to the extent that it may have required consultation with another medical professional to facilitate the disclosure. Based on his clinical judgment Physician, not Allen, made the decision to let the nail pass through her digestive system. But, that was not solely within Physician’s purview. Vol. 87 — No. 13 — 5/14/2016 CONCLUSION ¶20 Today, this Court emphasizes the doctrine of informed consent applies equally to invasive as well as noninvasive medical treatments and treatment alternatives regardless of a physician’s scope of practice. To effectively discharge a physician’s duty to disclose, a physician must disclose the medically reasonable alternatives regardless of whether it is the physician’s preferred method of treatment. The ultimate decision of what treatment a patient receives rests with the patient, not the physician. The trial court erred in holding that Allen’s claim of informed consent was not actionable. Resultantly, this matter is remanded for further proceedings consistent with this opinion. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION CONCUR: Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Colbert, and Gurich, JJ. DISSENT: Winchester and Taylor, JJ. COLBERT, J. 1. Allen and Duncan Regional Hospital entered into a settlement agreement prior to trial. The case against Physician, however, proceeded to trial. 2016 OK 45 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. KYLE EDWARD GOERKE, Respondent. SCBD 6382. April 25, 2016 ¶0 ORDER APPROVING RESIGNATION PENDING DISCIPLINARY PROCEEDINGS ¶1 Complainant, Oklahoma Bar Association (Bar Association), has applied pursuant to Rule 8.2 of the Rules Governing Disciplinary Proceedings (5 O.S.2011 Ch. 1, App. 1-A) for an order approving the resignation of the respondent, Kyle Edward Goerke, pending disciplinary proceedings. The Bar’s application and the respondent’s affidavit of resignation reveal the following. ¶2 On April 8, 2016, the respondent both executed and filed with this Court his affidavit of resignation from membership in the Bar Association pending disciplinary proceedings. The Oklahoma Bar Journal 923 ¶3 The respondent’s affidavit of resignation reflects that: (a) it was freely and voluntarily rendered; (b) he was not subject to coercion or duress; and (c) he was fully aware of the consequences of submitting the resignation. ¶4 The affidavit of resignation states respondent’s awareness of a grievance received and investigated by the Bar Association, and the Professional Responsibility Commission’s approval of commencing a formal disciplinary proceeding against respondent on the allegations that respondent failed to safekeep in his client trust account a client’s retainer until earned by respondent. ¶5 The resignation states the respondent is aware the allegations against him, if proven, would constitute violations of Rules 1.1, 1.3, 1.4, 1.5, 1.15, and 8.4 (a) & (c) of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, Ch.1, App. 3-A, and Rules 1.3 and 5.2 of the Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1-A, and his oath as an attorney. ¶6 The respondent states he is aware the burden of proof regarding the allegations against him rests upon the Oklahoma Bar Association, and he waives any and all rights to contest the allegations ¶7 The respondent states his awareness of the requirements of Rule 9.1, of the Rules Governing Disciplinary Proceedings, and he states he shall comply with that Rule within twenty (20) days following the date of his resignation. ¶8 The respondent states his intent that his resignation be effective from the date and time of its execution and that he will conduct his affairs accordingly. The Bar Association requests the Court make the resignation effective on the date of its execution by respondent. We note the resignation was executed by respondent, submitted to the Bar Association, and filed in this Court on the same day. See State ex rel. Oklahoma Bar Ass’n v. Demopolos, 2015 OK 50, ¶ 36 & n. 56, 352 P.3d 1210, 1221 (a proper resignation may be made effective on the date of submission to the Court); State ex rel. Oklahoma Bar Ass’n v. Bourland, 2001 OK 12, ¶¶ 14-17, 19 P.3d 289, 291-292 (a proper resignation may be made effective on the date filed with the Court when the lawyer’s conduct has treated the resignation as effective upon that date). ¶9 The respondent states his awareness that a Rule 8.2 resignation pending disciplinary 924 proceedings may be either approved or disapproved by the Oklahoma Supreme Court. ¶10 The respondent states he is aware he may make no application for reinstatement prior to the expiration of five years from the effective date of the order approving his resignation, and that reinstatement requires compliance with Rule 11 of the Rules Governing Disciplinary Proceedings. See 5 O.S.2011 Ch. 1, App. 1-A, Rule 8.2, Rules Governing Disciplinary Proceedings; State ex rel. Oklahoma Bar Association v. Bourland, 2001 OK 12, 19 P.3d 289; In re Reinstatement of Hird, 2001 OK 28, 21 P.3d 1043. ¶11 The respondent states he is aware the Client’s Security Fund may receive claims from his former clients, and he shall pay to the Oklahoma Bar Association, prior to reinstatement, those funds, including principal and interest, expended by the Client’s Security Fund for claims against him. See 5 O.S.2011 Ch. 1, App. 1-A, Rule 11.1(b), Rules Governing Disciplinary Proceedings; State ex rel. Oklahoma Bar Association v. Heinen, 2003 OK 36, ¶ 9, 84 P.3d 708, 709. ¶12 The respondent states he surrendered his Oklahoma Bar Association membership card to the Office of the General Counsel. ¶13 The respondent acknowledges he must cooperate with the Office of the General Counsel by providing current contact information and identifying active cases wherein client documents and files should be returned to the client or forwarded to new counsel, and cases where fees or refunds are owed by respondent. ¶14 The application for approval of respondent’s resignation filed by the Bar Association states no costs were incurred in the investigation of respondent. ¶15 The official roster name and address of the respondent is Kyle Edward Goerke, O.B.A. No. 12108, 1097 N. Wiegle, P.O. Box 305, Watonga, OK 73772. ¶16 IT IS THEREFORE ORDERED that the application by the Bar Association for an order approving Kyle Edward Goerke’s resignation be approved, and the resignation is deemed effective on the date it was executed and filed in this Court, April 8, 2016. ¶17 IT IS FURTHER ORDERED that respondent’s name be stricken from the Roll of Attorneys and that he make no application for reinstatement to membership in the Oklaho- The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 ma Bar Association prior to five years from the effective date of his resignation. ¶18 IT IS FURTHER ORDERED that costs are not awarded due to the express statement by the Oklahoma Bar Association that no costs were incurred. ¶19 IT IS FURTHER ORDERED that if any funds of the Client’s Security Fund of the Oklahoma Bar Association are expended on behalf of respondent, he must show the amount paid and that the same has been repaid, with interest, to the Oklahoma Bar Association to reimburse such Fund prior to reinstatement. ¶20 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 25th DAY OF APRIL, 2016. /s/ Douglas L. Combs VICE CHIEF JUSTICE ¶21 ALL JUSTICES CONCUR. 2016 OK 46 JAMES LOYD, Petitioner, v. MICHELIN NORTH AMERICA, INC., and THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS, Respondents. Case No. 112,754. April 26, 2016 ON APPEAL FROM THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS ¶0 Claimant James Loyd was awarded permanent partial disability benefits after being injured on the job. Loyd did not appeal, and the order became final. Less than a month after such order was issued, Loyd filed a Form 9 requesting continuing medical maintenance and requesting a portion of his permanent partial disability award be commuted to a lump sum payment. Upon consideration, we hold that a claimant may seek to commute his or her permanent partial disability award after the hearing on permanent partial disability under 85 O.S. 2001 § 41(A). Additionally, we conclude that because Loyd did not request reservation of continuing medical maintenance and the trial court’s order awarding permanent partial disability did not address or reserve the issue of continuing medical maintenance, Loyd’s only recourse was to seek continuing medical maintenance through a reopening proceeding under 85 O.S. 2001 § 28. Vol. 87 — No. 13 — 5/14/2016 WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS’ ORDER VACATED; CAUSE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS David Custar, Richard A. Bell, The Bell Law Firm, Norman, Oklahoma, for Petitioner Connie M. Wolfe, Connie M. Wolfe & Associates, PLLC, Oklahoma City, Oklahoma, for Respondents GURICH, J. Facts & Procedural History ¶1 Loyd was employed by Michelin North America for thirty years. On November 10, 2009, Loyd suffered injuries to his head, neck, back, right shoulder, right hip, and right knee after being thrown into a steel cage by a 500800 pound roll of fabric. At the time of his injury, he was working as a wind-up operator for a “fabric calender”1 and was attempting to repair a broken bolt of fabric. Loyd reported the incident to his Employer. ¶2 On November 20, 2009, Loyd was again attempting to repair a broken bolt of fabric when his left ankle gave out and he injured his left hand, left knee, left shoulder, and left ankle.2 On December 21, 2009, Loyd filed a Form 3 for his injuries from the November 10, 2009 incident, and he filed an amended Form 3 on January 20, 2010, to add the injuries suffered in the November 20, 2009 incident. An Order Determining Compensability and Awarding Temporary Total Disability Benefits was entered on May 20, 2010. From December of 2010 to October of 2012, Loyd had surgery on both shoulders, his back, both knees, and left ankle. ¶3 On May 16, 2013, Loyd filed a Form 9, requesting the following issues be set for trial: “Temporary disability from 11-24-09 to 5-6-13; Medical Treatment from 11-9-09 to Indefinite; Permanent Partial Disability/Permanent Partial Impairment; Cont. Medical Treatment; Disfigurement; Pain Management Specialist; Prescriptions; Should be allowed to remain under the care of Dr. Johnsen and Pam Holt for depression; Commute.”3 A hearing was held on November 26, 2013. The transcript from such hearing was not included in the record on appeal. On December 20, 2013, the trial court entered an Order Awarding the Nature and Extent of Permanent Partial Disability Benefits and Disfigurement. The order did not reserve any issues for future hearing and made no The Oklahoma Bar Journal 925 mention of continuing medical treatment, prescriptions, or commutation. Loyd did not appeal the order. ¶4 On January 15, 2014, just twenty-six days later, Loyd filed a Form 9, seeking to set for trial the issues of continuing medical maintenance and commuting a portion of his permanent partial disability award to a lump sum. Employer filed an Answer, alleging res judicata and claim preclusion as an affirmative defense. The court held a hearing on March 24, 2014, and filed an Order on March 25, 2014, denying Loyd’s request for continuing medical maintenance and Loyd’s request to commute.4 The court found that the prior permanent partial disability order of December 20, 2013, had become final, and thus, the court lacked jurisdiction to grant Loyd’s requests. Loyd appealed, and the Court of Civil Appeals affirmed. Loyd petitioned this Court for certiorari review, and we granted review on March 30, 2015. Standard of Review ¶5 The issues presented in this case concern the jurisdiction of the Workers’ Compensation Court to hear and determine Loyd’s request for continuing medical maintenance as well as Loyd’s request to commute a portion of his permanent partial disability award to a lump sum payment. Such jurisdictional issues are reviewed de novo. See Triad Transport, Inc. v. Wynne, 2012 OK 30, ¶ 7, 276 P.3d 1013, 1016. Under a de novo standard of review, this Court is afforded “plenary, independent, and non-deferential authority to examine the issues presented.” Benefiel v. Boulton, 2015 OK 32, ¶ 10, 350 P.3d 138, 142 (internal quotation omitted). Loyd’s Request to Commute a Portion of His Permanent Partial Disability Award to a Lump Sum ¶6 Section 41(A) of Title 85 provides: A. Awards for permanent partial disability under Section 22 of this title shall be made for the total number of weeks of compensation which the Court shall find the claimant will be entitled to receive, less any sums previously paid which the Court may find to be a proper credit thereon. When the award becomes final, the whole sum or any unpaid portion thereof shall operate as a final adjudicated obligation and payment thereof may be enforced by the claimant or in case of his death, by the surviving beneficiary entitled to the proceeds as provid926 ed in Section 48 of this title. All awards shall be paid by periodic installments as determined by the Court. Whenever an injured person receives an award for permanent partial disability, permanent total disability or death benefits, the injured employee or claimant, for good cause shown, may have the award commuted to a lump-sum payment by permission of the Court. This authorization for commutation shall not be applicable to attorney fees in permanent total disability cases. The lumpsum payment shall not exceed Four Thousand Dollars ($4,000.00) or twenty-five percent (25%) of the total award, whichever is the larger sum. . . .5 ¶7 This Court has not previously addressed whether a claimant must seek to commute a permanent partial disability award at the hearing on permanent partial disability, as the Employer in this case argues, or whether the claimant may seek to commute the award at a later date. In Lee Way Motor Freight, Inc. v. Wilson, 1980 OK 48, 609 P.2d 777, the claimant was awarded permanent partial disability benefits in September of 1978. In January of 1979, claimant sought to commute the balance of his award to a lump sum. Although the issue on appeal in Wilson was whether a later-enacted statute limited the amount of the award that could be commuted, the Court did not express concern or even mention that claimant’s motion was pressed after the hearing on permanent partial disability. Similarly, in Bagley v. Big “E” Industries, 1989 OK CIV APP 34, 776 P.2d 569, the claimant was awarded permanent partial disability benefits in August of 1987. In September of 1987 he moved to commute his award to lump sum payment. Again, although the issue on appeal was whether the trial court could direct payment of the lump sum to claimant’s ex-wife to satisfy back child support, the Court of Civil Appeals did not express concern that claimant’s motion was filed after the hearing on permanent partial disability. ¶8 Although Wilson and Bagley do not directly address the issue in the case before us, we find such cases consistent with the language of § 41(A) and conclude that a claimant may seek to commute his or her permanent partial disability award after the hearing on permanent partial disability. Section 41(A) provides that “[w]henever an injured person receives an award for permanent partial disability . . . the injured employee or claimant, for good cause shown, The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 may have the award commuted to a lump-sum payment by permission of the Court.”6 Such emphasized language implies that the court has already issued an order awarding permanent partial disability benefits. Thus, a claimant would necessarily have to seek to commute the award after receiving the order awarding permanent partial disability benefits. In addition, the statutory language only allows the court to commute a portion of the award “for good cause shown.”7 A claimant, at the time of the hearing on permanent partial disability, may or may not have a specific financial hardship or “good cause” to seek payment of the award in a lump sum. However, such financial need could arise at a later date, requiring the claimant to seek to commute the award after such award has been made. reopen the case based on change of condition, and the trial court found that claimant had sustained a change of condition for the worse and awarded additional permanent partial disability benefits. At the hearing that resulted in the awarding of additional permanent partial disability benefits, claimant did not request reservation of continuing medical maintenance, and the order of the court did not address or reserve for future hearing the issue of continuing medical maintenance. Claimant did not appeal the order. Two years later, claimant sought reimbursement for prescription medications purchased after the order awarding additional permanent partial disability benefits. Claimant argued that the prescriptions were specifically for the maintenance of the previously adjudicated change in condition. ¶9 In the case before us, although Loyd testified to his financial situation regarding his request to commute a portion of his award to a lump sum payment, the trial court made no ruling on the issue. Instead, the trial court found it lacked jurisdiction to even hear the issue. On remand, the court shall determine whether Loyd has shown good cause, entitling him to have a portion of his permanent partial disability award commuted to a lump-sum payment. ¶12 The Court, quoting Bill Hodges Truck Co. v. Gillum, 1989 OK 86, 774 P.2d 1063, stated: Loyd’s Request for Continuing Medical Maintenance ¶10 In the case before us, although continuing medical maintenance was listed on Loyd’s Form 9, the transcript of the hearing on permanent partial disability held on November 26, 2013, is not part of the appellate record. Employer’s brief states that “Claimant did not ‘expressly ask’ for Continued Medical Maintenance at the November 23, 2013 hearing,”8 and Loyd specifically states in his brief that the “trial court was not called upon in the [November] 2013 hearing to address [his] need for continuing medical maintenance.”9 The court’s order awarding permanent partial disability did not address continuing medical maintenance. Although Loyd had the opportunity to appeal the order to seek a correction or ruling on the issue, he did not appeal and the order became final. ¶11 In Pitchford v. Jim Powell Dozer, Inc., 2000 OK 12, 996 P.2d 935, the claimant was injured on the job and received an award of permanent partial disability benefits. Approximately four years later, claimant sought to Vol. 87 — No. 13 — 5/14/2016 A permanent disability award constitutes a solemn adjudication that the worker’s healing period has come to an end and his condition or state of health has reached the very optimum that is then medically obtainable. The law assumes that a condition of health, once adjudged to be permanent, is stationary. Stationary conditions generally require no medical care or maintenance. The moment permanent disability begins, the right to receive medical treatment ceases by operation of law except, of course, for certain limited tightly structured and explicitly authorized situations. Permanent disability, partial or total is presumed to continue until recurrence of temporary disability is established.... Once adjudged to have permanent disability, a worker is entitled to medical attention only upon establishing recurrence of the postaward healing period in a reopening proceeding under 85 O.S.1981 § 28.10 The Court held that the order awarding claimant additional permanent partial disability benefits “caused claimant’s right to receive medical treatment to end unless the claimant could demonstrate that under the facts in his situation he could fall within ‘certain limited tightly structured and explicitly authorized situations.’”11 The Court found that such situations included situations where the original order awarding permanent disability benefits authorized future medical treatments or continuing medical care.12 The Oklahoma Bar Journal 927 ¶13 The Court also found that because the claimant did not request reservation of continuing medical maintenance and the trial court’s order did not address or reserve the issue of continuing medical maintenance, the claimant could not be “reimbursed for prescription medications purchased after the order determining permanent partial disability.”13 The Court held: “For the prescriptions to be considered for maintenance purposes, they must be included in the order granting permanent partial disability. Failing to show that he falls within the exception, claimant must show a change of condition for the worse before continuing medical maintenance benefits may be awarded.”14 ¶14 In the case before us, Loyd asks us to rely on Armstrong v. Unit Drilling, 2002 OK 17, 43 P.3d 383. We find Armstrong is distinguishable. In that case, it was undisputed that the claimant had sought continued medical maintenance at the hearing on his claim for permanent disability but that the trial court failed to include such in its order.15 Additionally, Armstrong is distinguishable because in that case the Court found it was clear that the parties had interpreted the trial court’s original order to require employer to pay for prescription costs because the employer had continued to pay for those prescriptions for six years after the order was entered.16 ¶15 Here, the order was entered on December 20, 2013, and by the time the hearing occurred on Loyd’s request for continuing medical maintenance on March 24, 2014, Employer had already ceased paying for Loyd’s doctor visits to Dr. Moorad and Dr. Kaplan and stopped paying for the prescriptions prescribed by those doctors.17 Employer in this case clearly interpreted the trial court’s order to not include continuing medical maintenance in the form of continued prescription costs and doctor visits. ¶16 Finally, although Loyd’s failure to request continuing medical maintenance at the hearing on permanent partial disability precludes the application of Armstrong, such also precludes Employer’s res judicata defense. Under principles of res judicata, or claim preclusion, “a final judgment on the merits of an action precludes the parties from relitigating not only the adjudicated claim, but also any theories or issues that were actually decided, or could have been decided, in that action.” Miller v. Miller, 1998 OK 24, ¶ 23, 956 P.2d 887, 896 (emphasis 928 added). The Employer has the burden to show the issue to be precluded was actually litigated or decided. Okla. Nat. Gas, Inc. v. Messer, 2011 OK CIV APP 20, ¶ 19, 249 P.3d 99, 104. Employer has specifically admitted that Loyd did not ask for continuing medical maintenance at the hearing on permanent partial disability in November of 2013. Thus, we conclude that Employer has failed to meet its burden to show the issue of continuing medical maintenance was actually litigated at the November 2013 hearing. ¶17 Because Loyd did not request reservation of continuing medical maintenance and the trial court’s order awarding permanent partial disability did not address or reserve the issue of continuing medical maintenance, and the award became final after Loyd did not appeal, as in Pitchford, Loyd’s only recourse is to seek continuing medical maintenance through a reopening proceeding under § 28.18 ¶18 This Court has long held that “[t]he Workers’ Compensation Court has exclusive original jurisdiction over all proceedings for compensation which is legally due for an onthe-job injury. This statutory cognizance includes all conceivable § 28 proceedings. The trial tribunal’s power to reopen a claim over which it already has acquired jurisdiction cannot be drawn into question.”19 Thus, the trial court’s conclusion that it lacked the jurisdictional power to hear Loyd’s request was error. On remand, the trial court is directed to treat Loyd’s request for continuing medical maintenance as a reopening claim under 85 O.S. 2001 § 28.20 Conclusion ¶19 We hold that Loyd may seek to commute his permanent partial disability award after the hearing on permanent partial disability under 85 O.S. 2001 § 41(A). On remand, the court shall determine whether Loyd has shown good cause, entitling him to have a portion of his permanent partial disability award commuted to a lump-sum payment. Additionally, because Loyd did not request reservation of continuing medical maintenance and the trial court’s order awarding permanent partial disability did not address or reserve the issue of continuing medical maintenance, we hold that Loyd’s only recourse was to seek continuing medical maintenance through a reopening proceeding under 85 O.S. 2001 § 28. On remand, the trial court is directed to treat Loyd’s request for continuing medical maintenance as a § 28 reopen- The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 ing claim and permit the introduction of additional medical and testimonial evidence. WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS’ ORDER VACATED; CAUSE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS ¶20 Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Gurich, JJ., concur. ¶21 Winchester, Taylor, JJ., dissent. ¶22 Colbert, J., not participating. GURICH, J. 1. Record on Appeal at 34. 2. Loyd attempted to report the injury to his Employer on that same day. However, soon after the incident on November 20, 2009, he was called into his supervisor’s office to discuss the incident that occurred on November 10, 2009. Loyd was again called into his supervisor’s office on November 23, 2009, and was terminated for the incident occurring on November 10, 2009. It appears from the record, that Loyd reported the later injury of November 20, 2009, to his Employer soon after he was terminated. Transcript of Proceedings at 17-21 (May 20, 2010). 3. Record on Appeal at 110. 4. We note that Loyd’s original claim was filed in the Workers’ Compensation Court. However, by the time the trial court issued the order now on appeal on March 25, 2014, the Workers’ Compensation Court had been renamed the Workers’ Compensation Court of Existing Claims pursuant to 85A O.S. Supp. 2013 § 400. 5. 85 O.S. 2001 § 41(A) (emphasis added). 6. 85 O.S. 2001 § 41(A) (emphasis added). 7. 85 O.S. 2001 § 41(A). 8. Respondent’s Answer Brief at 7. 9. Brief of Petitioner at 5. 10. Pitchford, 2000 OK 12, ¶ 5, 996 P.2d at 936-37 (quoting Bill Hodges Trucking Co. v. Gillum, 1989 OK 86, 774 P.2d 1063). In Gillum, the Claimant was awarded permanent total disability benefits after suffering two heart attacks while on the job. The order awarding permanent total disability benefits included a clause requiring the employer to pay “’all reasonable and necessary medical expenses incurred by claimant as a result of said injury.’” Id., ¶ 2, 774 P.2d at 1064. The order became final after neither party appealed. Approximately three years later, the claimant filed a Form 9 seeking approval of a heart transplant, arguing that such transplant constituted a “reasonable and necessary expense” under the court’s previous permanent total disability order. The Court held that the order awarding permanent total disability benefits to the claimant could not “serve as authority for medical treatment beyond its date. The worker’s postaward quest for additional medical care . . . [was] in law but a § 28 reopening claim, which must be based on a changed condition that necessitates heart transplant surgery. . . . The worker was required to establish an after-occurring (postaward) need for the requested medical procedure.” Id., ¶ 7, 774 P.2d at 1066. 11. Pitchford, 2000 OK 12, ¶ 6, 996 P.2d at 937. 12. Id., ¶ 7-8, 996 P.2d at 937 (citing Orrick Stone Co. v. Jeffries, 1971 OK 116, 488 P.2d 1243; Depue v. Barsh Truck Lines, 1972 OK 5, 493 P.2d 80; City of Frederick v. Elmore, 1978 OK 160, 587 P.2d 1365; Zebco Motorguide v. Briggs, 1994 OK CIV APP 60, 881 P.2d 103). 13. Id., ¶ 9, 996 P.2d at 937. 14. Id. 15. Armstrong, 2002 OK 17, ¶¶ 2-3, 43 P.3d at 384. 16. Id., ¶ 11, 43 P.3d at 385-86. 17. Transcript of Proceedings at 6-7 (Mar. 24, 2014). Loyd testified at the hearing on March 24, 2014, that Dr. Moorad informed him sometime in February of 2014 that Employer was no longer paying for Loyd’s visits, so he would no longer be able to treat him. Id. 18. See 85 O.S. 2001 § 28. 19. Gillum, 1989 OK 86, ¶ 10, 774 P.2d at 1067 (citing 85 O.S. 1981 § 28). 20. See Id., ¶ 19, 774 P.2d at 1069. Vol. 87 — No. 13 — 5/14/2016 2016 OK 47 JACQUELYN TESS MURLIN, Plaintiff/ Appellee, v. JIMMY LEE DIAL PEARMAN, JR., Defendant/Appellant. No. 113,193. April 26, 2016 CERTIORARI TO COURT OF CIVIL APPEALS, DIVISION II Honorable Jequita Napoli, Trial Judge ¶0 The Plaintiff/Appellee, Jacquelyn Tess Murlin (Tess), filed a petition for a victim protection order (VPO) against her exboyfriend, the Defendant/Appellant, Jimmy Lee Dial Pearman, Jr. (Pearman). After text messages between the alleged victim and Pearman’s ex-wife, Theresa Marie Pearman (Theresa) revealed that the VPO filing was a collaboration between Tess and Theresa to obtain custody in a child custody dispute against Pearman, Tess withdrew the petition. Pearman sought to have the VPO filing declared frivolous, and to recover attorney fees and costs, pursuant to 22 O.S. Supp. 2013 §60.2. The trial judge denied his request. The Court of Civil Appeals affirmed. We hold that, pursuant to 22 O. S. 2013 §60.2, the matter was frivolously filed and victimless, and that attorney fees and costs should have been awarded. COURT OF CIVIL APPEALS’ OPINION VACATED; TRIAL COURT REVERSED AND REMANDED WITH INSTRUCTIONS TO AWARD ATTORNEY FEES AND COSTS. Jeffrey D. Nachimson, Oklahoma City, Oklahoma, for Plaintiff/Appellee. Christian M. Zeaman, Edmond, Oklahoma, for Defendant/Appellant. KAUGER, J. ¶1 The dispositive questions before this court are whether the plaintiff’s petition for protective order, filed pursuant to 22 O.S. Supp. 2013 §60.2,1 was frivolous and victimless, and whether attorney fees and costs should have been awarded. We hold that the matter was frivolously filed and victimless, and that attorney fees and costs should have been awarded. FACTS ¶2 Jimmy Lee Pearman, Jr. and Theresa Marie Pearman filed for divorce on July 9, 2012, in the District Court of Cleveland County, The Oklahoma Bar Journal 929 Oklahoma. The decree dissolving the marriage was memorialized on June 24, 2013, however, the parties continued their litigation over matters of child custody and support of their two children. On September 12, 2014, Pearman was awarded exclusive custody of the children and Theresa was granted standard visitation. ¶3 The record reflects that Theresa met Tess, a 22 year-old college student, in early 2012, while getting a facial at a salon. The two women became friends. Theresa introduced Tess to Pearman when he helped Theresa after her car had broken down. Tess and Pearman began dating by mid-July of 2013. Tess described their relationship as one of “exclusively dating” beginning in August of 2013. According to her, this relationship caused a serious rupture in her relationship with Theresa. Text messages reflect that she had “been” with both of them. Tess and Theresa had an altercation over Tess’s relationship with Pearman that was so violent that the police were called. The incident occurred in front of the children, while Tess was living with Theresa and dating Pearman. ¶4 On April 29, 2014, another event occurred at Pearman’s home which is the nucleus of this appeal. The course of the evening has been described in very different terms by Pearman and Tess, although there is no testimony by him in the record. According to Tess, she was dropped off at his home by a friend after a night of drinking. The record reflects that Tess had a DUI, and a history with alcohol abuse. ¶5 According to Tess, she went into the home using a garage door opener Pearman had given her, unlocked the security system, took off her clothes except for a t-shirt and underwear, and went to sleep in one of the children’s rooms. When she woke up, she went to his locked bedroom, unlocked the door with a screwdriver and walked in on him and another woman, Taylor. She says they exchanged words, that he attacked her, pushed her into the wall, shoved her face into the front door and punched her in the eye. After the incident, she stayed in his house until he took her home the next morning. The next day, she went to the Moore, Oklahoma police station and filed a report. ¶6 Text messages from Tess, and Theresa, as well as testimony from both the child custody case and this cause, suggest a different story. According to testimony and text messages, 930 Tess was drinking in Edmond on the night in question. Throughout the entire evening she was texting Pearman, calling him over and over, wanting to come over, until it reached the point where he threatened to block her number if she did not stop. She admitted that she was intoxicated and that he never agreed for her to come to his house. According to Taylor, she and Pearman arrived at his home to find the garage open, all the lights on, a half empty bottle of vodka on the counter with a soda next to it, and Tess passed out naked in Pearman’s bed. ¶7 Pearman and Taylor moved her into another bedroom to let her “sleep it off.” However, she came into Pearman’s bedroom twice during the night and he walked her back to the other bedroom. The third time she picked the locked door with a screwdriver, jumped on the bed, and started calling Taylor names. Tess followed Taylor into the kitchen, threw an unopened soda can at her head and then charged her. Taylor punched Tess in the face in self defense. At the trial she testified that Pearman did not hit Tess. ¶8 The record contains an extensive series of text messages between Tess and Theresa, beginning on May 3, 2014, just four days after the alleged attack in Pearman’s home. Tess filed a police report complaining about his alleged assault which is not included in the record. A text message sent by Tess to Theresa states that she would not have filed a police report if it were not for the ongoing custody fight. The record does not indicate that criminal charges were ever actually filed against Pearman. ¶9 The messages imply that Theresa directed Tess to file the police report in Cleveland County, the site of the custody appeal. The messages also show that Theresa spoke with her attorney in her custody case about the filing of the Petition for Protective Order/VPO. Theresa advised Tess that the key points in filing the petition for VPO were Pearman’s felony record, previous acts of domestic violence, possession of an illegal weapon and her fear. Several of the texts referenced the police report that she filed, noting that she was very intoxicated, and that she did not fully remember the incident. ¶10 The texts indicate that Tess and Theresa had rekindled their friendship with a shared goal of assisting Theresa in her custody battle against Pearman through the filing of a peti- The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 tion for VPO. Examples of some of the messages include: [From Tess to Theresa] “Just trying to help you. If I’m not creating anything but trouble, then it’s you-all’s thing and had no affect on me. Just trying to help you Theresa Marie.” [From Theresa to Tess] “Custody will not include you at this point. I don’t want to call you as a witness, which is why I need the VPO.” Other texts show that: 1) Theresa believed that filing the VPO would be good for the custody case and that it would be good for Theresa and her girls; and 2) the VPO would be a huge break for Theresa. ¶11 On May 5, 2014, Tess filed a petition for a protective order in the District Court of Cleveland County against Pearman. She alleged that: 1) she was physically assaulted at his residence on April 29, 2014; 2) she had filed a police report with the Moore Police Department regarding the assault; 3) Pearman was a felon because of possession of an illegal firearm; and 4) he had a violent past with previous domestic abuse. ¶12 The hearing on Tess’s VPO was held on May 19, 2014. At the hearing, Theresa’s attorney also represented Tess without charge. Most of the hearing concerned many text messages between Theresa and Tess regarding the VPO and their friendship and sex lives. Because of concerns about attorney-client privilege, the text messages were examined by both attorneys during a recess. Pearman’s attorney used the text messages to establish the motive for filing VPO as merely an attempt to affect the ex-wife’s child custody case. The court recessed so that the lawyers could review the text messages together. After recess and review of the messages, the attorney for Tess stated that: You know, we could go and have a full hearing and you can decide whether a protective order is warranted. But the bottom line is there were texts from my client admitting, look, this happened, so on and so forth, but if it weren’t for your custody case and your kids, I wouldn’t even bother with a VPO. So, you know, with that in mind, regardless, it shows that, hey, I don’t need a proVol. 87 — No. 13 — 5/14/2016 tective order. So I advised my client to dismiss and that’s what we’re going to ask the Court for. ¶13 Subsequently, the trial court granted the motion to withdraw and dismissed the case. When asked to determine the matter frivolous and award attorney fees and costs, the trial court, remarked that, while the whole matter was a soap opera, embarrassing, and absurd, the ex-husband did not show that it was frivolously filed. Consequently, the trial court refused to award attorney fees and costs. A journal entry was filed on July 18, 2014. ¶14 Theresa and Tess arrived together for the May 21, 2014, custody hearing. During the hearing, Tess was called to testify and she claimed that she had not filed the VPO so that it could be used in the custody matter. However, she also testified that she wanted to dismiss the VPO and Theresa did not want her to do so because it would be detrimental to Pearman in the custody case. She also testified that she had contacted Pearman on multiple occasions after the April 29th incident because she still loved him. ¶15 On July 18, 2014, Pearman filed a motion for new trial or a motion to vacate judgment of the decision by the trial court, or in the alternative a finding that Tess’s actions were frivolous and award attorney fees and costs to him. The motion for new trial was granted, and a hearing was held on August 18, 2014. At the hearing, Pearman’s attorney argued that there was a conspiracy between the two women. ¶16 After the hearing, the trial court held that, although the evidence was conflicting, there was a failure to show that the filing for a protective order was frivolous or in bad faith and victimless, indicating that a finding of each was required in order to award attorney fees and costs. No costs or attorney fees were assessed against Tess. We granted certiorari to address whether the filing was frivolous, and victimless, and whether attorney fees and costs should have been awarded pursuant to 22 O.S. 2013 §60.2.2 STANDARD OF REVIEW ¶17 In Curry v. Streater, 2009 OK 5, ¶8, 213 P.3d 550, we addressed the first impression question of the proper standard of review of a protective order. We analogized a protective order, under the Protection from Domestic Abuse Act, 22 O.S. 2001 §§60-60.20 et seq., in The Oklahoma Bar Journal 931 the same manner as an injunction.3 The standard of review for the grant or denial of an injunction is whether there was an abuse of discretion by the trial judge.4 Under an abuse of discretion standard, the appellate court examines the evidence in the record and reverses only if the trial court’s decision is clearly against the evidence or is contrary to a governing principle of law.5 To reverse under an abuse of discretion standard, an appellate court must find the trial court’s conclusions and judgment were clearly erroneous, against reason and evidence.6 PURSUANT TO 22 O.S. § 60.2 THE MATTER WAS FRIVOLOUSLY FILED AND VICTIMLESS, AND ATTORNEY FEES AND COSTS SHOULD HAVE BEEN AWARDED. ¶18 Tess argues that nothing in the record indicates that the purpose for filing the VPO was for Theresa to gain an advantage in the custody case and that the trial court acted within its discretion in refusing to award costs and attorney fees against her. Pearman argues that repercussions should be administered for misuse of VPOs and that the statute provides the remedy of awarding attorney fees and assessing costs, but the trial court neglected to apply this remedy. ¶19 Title 22 O.S. Supp. 1982 §60.2 is part of an Act known as the Protection from Domestic Abuse Act (the Act) and it was codified in 1982.7 At the time of codification the statutory provisions of 22 O.S. Supp. 1982 §60.2 did not require filing fees, but it did provide for the assessment of attorney fees to either party.8 One obvious purpose of the statute was to encourage victims to pursue their legal remedies in court without regard to economic means for filing fees, yet to discourage unnecessary or frivolous filings by allowing the award of attorney fees and costs against either party. ¶20 In 2000, the statute added the term “victim” to provide “victims” of domestic abuse the opportunity for protection,9 but nowhere in the Act was the term “victim” or frivolous defined.10 The current provisions of 22 O.S. 2013 §60.2, provide that when a protective order has been filed frivolously and no victim exists, the court may assess attorney fees and court costs against the plaintiff.11 The Act still did not define “victim” or “frivolous.” When a statute does not define a word or words contained therein, the courts will interpret the words in their common, ordinary sense.12 The term victim is generally defined as a person harmed by a crime, tort, or other wrong.13 932 Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase whenever it occurs, except where a contrary intention plainly appears.14 Another definition of victim is found in provisions of 21 O.S. 2011 § 142.3, the Crime Victims Compensation Act as: a person who suffers personal injury or death as a result of criminally injurious conduct. . . . ¶21 There was no evidence of stalking, harassment, or rape and even if Tess did sustain physical injuries, the record is disparate as to who caused any injuries that she sustained. Nevertheless, the weight of the evidence in the record regarding the purpose and/or reason she filed the petition for the VPO against Pearman shows that it was to help Theresa in her custody battle, not to actually seek protection from Pearman. Furthermore, it appears that no court ever ruled on who caused the alleged injuries. Criminal charges were not pursued against Pearman or anyone else as a result of this incident. ¶22 No protective order issued. Rather, Tess withdrew the application and the court granted the request, with her attorney stating that her texts indicated that if it were not for Theresa’s custody case, she would not have filed a petition for protective order. He also characterizes her request to withdraw the petition as a tacit statement that she did not need the protective order. ¶23 Because Tess was not legally determined to be Pearman’s victim, and she withdrew her petition for protective order under the factual circumstances in this cause, the trial court could not have reached any other conclusion but to determine the cause victimless. The other provisions of the civil pleading code, 12 O.S. 2011 §2011.1 specifically defines frivolous as “the claim or defense was knowingly asserted in bad faith or without any rational argument based in law or facts to support the position of the litigant or to change existing law.” ¶24 The statements by Tess in the text messages and the statement of her attorney in withdrawing the petition for protective order clearly show that she did not seek the petition for protective order to save herself from bodily injury at the hands of Pearman, but rather to assist his former wife in her custody case. The trial court’s determination that the proceeding was not frivolous was clearly against the weight of the evidence and an abuse of direction. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 ¶25 The trial court also refused to award attorney fees and costs against Tess for seeking a frivolous and victimless protective order. Because the obvious purpose of the attorney fee and costs provisions in 22 O.S. 2011 §60.2 is to preclude the filing of frivolous and victimless applications, the trial court also abused its discretion in neglecting to award costs and attorney fees under the facts of this cause. CONCLUSION ¶26 The clear weight of the evidence was that the petition for protective order was filed for the purpose of harming Pearman in his custody litigation with his former wife. The trial court abused its discretion in failing to find that the filing by Tess was frivolous. Because the petition for protective order was withdrawn, the matter, pursuant to 22 O. S. 2013 § 60.2, had no victim as a matter of law. Because this cause was both frivolous and victimless, the trial court should have awarded attorney fees and costs against Tess. ¶27 We recognize the importance of a VPO and that its purpose is obviously aimed at helping to stop violent and harassing behavior and to protect a person or their family from the person causing harm. The Legislature also recognizes this purpose by waiving filing fees so that anyone who feels threatened can legally pursue a VPO without regard to monetary resources. At the same time, VPOs are not to be used to harass or for other reason than their intended purpose. The Legislature also recognizes this by allowing court costs and attorney fees to be recovered by either party in the event the VPO was sought for an unsavory or frivolous purpose. Under the facts of this cause, the purpose of helping to stop violent and harassing behavior was not the purpose for which this VPO was primarily sought. Accordingly, the cause is reversed and remanded to the trial court to make that award and determine the appropriate amount of attorney fees, court costs and filing fees to award. COURT OF CIVIL APPEALS’ OPINION VACATED; TRIAL COURT REVERSED AND REMANDED WITH INSTRUCTIONS TO AWARD ATTORNEY FEES AND COSTS. REIF, C.J. COMBS, V.C.J., KAUGER, WATT, COLBERT, GURICH, JJ., concur. TAYLOR, J., concurs in result. Vol. 87 — No. 13 — 5/14/2016 WINCHESTER, EDMONDSON, JJ., dissent. KAUGER, J. 1. Title 22 O.S. Supp. 2013 §60.2 provides in pertinent part: A. A victim of domestic abuse, a victim of stalking, a victim of harassment, a victim of rape, any adult or emancipated minor household member on behalf of any other family or household member who is a minor or incompetent, or any minor age sixteen (16) or seventeen (17) years may seek relief under the provisions of the Protection from Domestic Abuse Act. . . . C. 1. Except as otherwise provided by this section, no filing fee, service of process fee, attorney fees or any other fee or costs shall be charged the plaintiff or victim at any time for filing a petition for a protective order whether a protective order is granted or not granted. The court may assess court costs, service of process fees, attorney fees, other fees and filing fees against the defendant at the hearing on the petition, if a protective order is granted against the defendant; provided, the court shall have authority to waive the costs and fees if the court finds that the party does not have the ability to pay the costs and fees. 2. If the court makes specific findings that a petition for a protective order has been filed frivolously and no victim exists, the court may assess attorney fees and court costs against the plaintiff…. F. A court may not require the victim to seek legal sanctions against the defendant including, but not limited to, divorce, separation, paternity or criminal proceedings prior to hearing a petition for protective order. 2. Title 22 O.S. 2013 §60.2, see note 1, supra. 3. Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550. 4. Scott v. Oklahoma Secondary Sch. Activities Ass’n, 2013 OK 84, ¶16, 313 P.3d 891; Curry v. Streater, see note 3, supra; Johnson v. Ward, 1975 OK 129, ¶42, 541 P.2d 182, 188. 5. Curry v. Streater, see note 3, supra; State ex rel. Tal v. Oklahoma City, 2002 OK 97, ¶3, 61 P.3d 234, 240; Abel v. Tisdale, 1980 OK 161, ¶ 29, 619 P.2d 608. 6. Curry v. Streater, see note 3, supra; Parsons v. Volkswagen of Am., Inc., 2014 OK 111, ¶9, 341 P.3d 662; Oklahoma Tpk. Auth. v. Little, 1993 OK 116, ¶6, 860 P.2d 226, 228. 7. Title 22 O.S. 2011 §§60-60.20. 8. Title 22 O.S. Supp. 1982 §60.2 provides in pertinent part: . . .c. No filing fee shall be charged the plaintiff at the time the petition is filed. The court may assess court costs and filing fees to either party at the hearing on the petition. 9. Title 22 O.S. Supp. 2000 §60.2; Okla. Ag. Opin. No. 04-4. 10. Other definitions are found at 22 O.S. 2011 §60.1 where such terms as domestic abuse, stalking, harassment, dating relationship and victim support person are defined. However, the term “victim” is not defined. 11. Title 22 O.S. 2013 §60.2, see note 1, supra. 12. American First Abstract Co. v. Western Information Systems, Inc., 1987 OK 24, ¶5, 735 P.2d 1187; Loffland Bros. Equipment v. White, 1984 OK 69, ¶7, 689 P.2d 311. 13. Black ‘s Law Dictionary (10th ed. 2014). 14. Oliver v. City of Tulsa, 1982 OK 121, ¶18, 654 P.2d 607. 2016 OK 48 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. GEORGE MICHAEL LEWIS, Respondent. SCBD No. 6384. May 2, 2016 ORDER APPROVING RESIGNATION FROM OKLAHOMA BAR ASSOCIATION PENDING DISCIPLINARY PROCEEDINGS ¶1 On April 25, 2016, George Michael Lewis’s affidavit regarding his resignation pending disciplinary proceedings was filed with this Court. See Rule 8.1, Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, ch. 1, app. The Oklahoma Bar Journal 933 1-A. Lewis requests that he be allowed to resign his membership in the Oklahoma Bar Association (OBA) and relinquish his right to practice law in Oklahoma pending disciplinary proceedings. The OBA filed its application for an order approving the resignation. ¶2 In the affidavit, Lewis acknowledges that the OBA has opened grievance DC 16-054 against him and that the grievance alleges that he committed criminal acts involving sexual abuse of his minor daughter and such acts reflect adversely on his honesty, trustworthiness or fitness as a lawyer. He states that he is aware, if proven, the acts constitute violations of Rule 8.4(b) of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch. 1, app. 3-A, and Rule 1.3 of the RGDP. ¶3 This Court finds that Lewis has complied with the requirements of Rule 8.1 of the RGDP. Consistent with Rule 8.1’s requirements, Lewis’s affidavit reflects that his tendered resignation is freely and voluntarily rendered, that he is not subject to coercion or duress, that he is aware of the consequences of submitting the resignation, and that he is waiving his rights to contest the allegations in the pending grievance. ¶4 Lewis acknowledges that he may not make application for reinstatement for five years after the effective date of this order and that he must comply with Rule 11 of the RGDP when seeking reinstatement. Lewis agrees to reimburse the Client Security Fund for claims approved and paid, together with statutory interest, as a result of these proceedings and before seeking reinstatement. ¶5 Lewis avers that he cannot locate his OBA membership card, but, if he does locate it, he will submit it to the OBA’s General Counsel. Lewis has consulted legal counsel “regarding the matters contained within the affidavit.” The OBA states that it has not incurred any costs related to these proceedings. ¶6 This Court finds that Lewis’s resignation complies with the requirements set forth in Rule 8.1 of the RGDP and should be approved. Therefore, it is ordered that George Michael Lewis’s name be stricken from the roll of attorneys. Because resignation pending discipline is tantamount to disbarment, Lewis may not make an application for reinstatement prior to the expiration of five years from the date this order becomes final. Rules 8.1(c), 8.2, RGDP. Further, Lewis shall reimburse the Client Security Fund any amounts paid out as a result of 934 these proceedings before seeking reinstatement. Rule 11.1(b), RGDP. Pursuant to Rule 9.1 of the RGDP, Lewis shall notify all of his clients, if any, having legal business pending with him within 20 days, by certified mail, of his inability to represent them and of the necessity for promptly retaining new counsel. ¶7 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 2nd day of May 2016. /s/ John F. Reif CHIEF JUSTICE Concur: Reif, C.J.; Combs, V.C.J.; and Kauger, Watt, Winchester, Edmondson, Taylor, and Colbert, JJ. Not Participating: Gurich, J. 2016 OK 49 REVOCATION OF CERTIFICATES OF CERTIFIED SHORTHAND REPORTERS SCAD-2016-36. May 2, 2016 ORDER On February 15, 2016, this Court suspended the certificates of several certified shorthand reporters for failure to comply with the continuing education requirements for calendar year 2015 and/or with the annual certificate renewal requirements for 2016. See 2016 OK 21 (SCAD 2016-13). The Oklahoma Board of Examiners of Certified Shorthand Reporters has advised that the court reporters listed below continue to be delinquent in complying with the continuing education and/or annual certificate renewal requirements, and the Board has recommended to the Supreme Court of the State of Oklahoma the revocation of the certificate of each of these reporters, effective April 15, 2016, pursuant to 20 O.S., Chapter 20, App. 1, Rules 20 and 23. IT IS THEREFORE ORDERED that the certificate of each of the certified shorthand reporters named below is hereby revoked effective April 15, 2016. Christina Ogle Norma Rico Lisa Stockwell Nikki Tate Amy Taylor The Oklahoma Bar Journal CSR # 1088 CSR # 1992 CSR # 1969 CSR # 1608 CSR # 1993 Vol. 87 — No. 13 — 5/14/2016 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 2nd day of MAY, 2016. ORIGINAL PROCEEDING TO DETERMINE THE VALIDITY OF INITIATIVE PETITION NO. 409 /s/ John F. Reif CHIEF JUSTICE ¶0 This is an original proceeding to determine the legal sufficiency of Initiative Petition No. 409. The petition seeks to amend the Oklahoma Constitution by repealing Article 28 and adopting Article 28A. Article 28A would allow wine to be sold in grocery stores. Opponents filed this protest alleging the petition unconstitutionally delegates legislative authority. Opponents also allege the gist of the petition is insufficient and misleading. Upon review, we hold that the gist of the petition does not fairly describe the proposed constitutional amendment and is invalid. ALL JUSTICES CONCUR. 2016 OK 50 REINSTATEMENT OF CERTIFICATES OF CERTIFIED SHORTHAND REPORTERS SCAD-2016-37. May 2, 2016 ORDER The Oklahoma Board of Examiners of Certified Shorthand Reporters has recommended to the Supreme Court of the State of Oklahoma that the certificate of each of the Oklahoma Certified Shorthand Court Reporters named below be reinstated as these reporters have complied with the continuing education requirements for calendar year 2015 and/or with the annual certificate renewal requirements for 2016, and have paid all applicable penalty fees. IT IS HEREBY ORDERED that, pursuant to 20 O.S., Chapter 20, App. 1, Rules 20 and 23, the certificates of the following court reporters are reinstated from the suspension earlier imposed by this Court: Name & CSR # Effective Date of Reinstatement Lori Byrd, CSR #1981 April 15, 2016 Renatta Thompson, CSR #606 April 13, 2016 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 2nd day of May, 2016. /s/ John F. Reif CHIEF JUSTICE ALL JUSTICES CONCUR. 2016 OK 51 IN RE INITIATIVE PETITION NO. 409, STATE QUESTION NO. 785, OKLAHOMA GROCERS ASSOCIATION and RON EDGMON, Petitioners, v. RETAIL LIQUOR ASSOCIATION OF OKLAHOMA and BRYAN KERR, Respondents. Case No. 114,792. May 3, 2016 Vol. 87 — No. 13 — 5/14/2016 INITIATIVE PETITION NO. 409, STATE QUESTION NO. 785, IS DECLARED INVALID AND ORDERED STRICKEN FROM THE BALLOT V. Glenn Coffee, Denise Davick, Glenn Coffee & Associates, PLLC, Oklahoma City, OK, for Petitioners Ann G. Richards-Farinha, Hartsfield & Egbert, PLLC, Oklahoma City, OK, for Respondents Randy J. Malone, Oklahoma City, OK, for Respondents GURICH, J. ¶1 On February 23, 2016, Respondents Retail Liquor Association of Oklahoma and Bryan Kerr (Proponents) filed Initiative Petition No. 409 with the Oklahoma Secretary of State. The petition seeks to amend the Oklahoma Constitution by repealing Article 28 and adopting Article 28A. In short, the proposed Article 28A would allow wine to be sold in grocery stores. Grocery stores would be limited to only one Retail Grocery Wine Store license. Grocery stores with multiple locations could procure up to three more licenses by purchasing qualified Retail Package Store licenses from a retail package store for conversion to a Retail Grocery Wine Store license. Under the proposed Article 28A, retail package stores could now sell any and all items that are sold in convenience stores and grocery stores. Small brewers could sell their products at a brewery or festival or trade show and could sell alcoholic beverages by the drink at a restaurant co-located on the premises of the brewery. On March 11, 2016, Petitioners Oklahoma Grocers Association and Ron Edgmon (Opponents) timely filed an Application to Assume Original Juris- The Oklahoma Bar Journal 935 diction in this Court protesting: 1) the constitutionality of the petition; and 2) the statutory sufficiency of the gist of the petition. ¶2 “’The first power reserved by the people is the initiative . . . .’ With that, comes ‘the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature.’” In re Initiative Petition No. 403, 2016 OK 1, ¶ 3, 367 P.3d 472, 474 (citing Okla. Const. Art. 5, § 1). “While this fundamental and precious right is zealously protected by this Court, it is not absolute. Any citizen can protest the sufficiency and legality of an initiative petition.” In re Initiative Petition No. 384, 2007 OK 48, ¶ 2, 164 P.3d 125 (internal citation omitted). When a protest is filed in this Court, we are “vested with original jurisdiction to evaluate and determine the sufficiency of the proposed initiative petition pursuant to 34 O.S. Supp. 2015 § 8.” In re Initiative Petition No. 403, 2016 OK 1, ¶ 3, 367 P.3d at 474. ¶3 The procedures for presenting an initiative petition are outlined in 34 O.S. Supp. 2015 §§ 1-27. Section 3 of Title 34 provides in part: “A simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet.”1 This Court has long held that the purpose of the gist, along with the ballot title, is to “prevent fraud, deceit, or corruption in the initiative process.”2 The gist “’should be sufficient that the signatories are at least put on notice of the changes being made,’” and the gist must explain the proposal’s effect.3 The explanation of the effect on existing law “does not extend to describing policy arguments for or against the proposal.”4 The gist “need only convey the practical, not the theoretical, effect of the proposed legislation,” and it is “’not required to contain every regulatory detail so long as its outline is not incorrect.’”5 “We will approve the text of a challenged gist if it is ‘free from the taint of misleading terms or deceitful language.’”6 ¶4 From 1985 until 2015,7 the “pamphlet” circulated to potential signatories included an exact copy of the ballot title, the text of the measure itself, and signature sheets, which included the gist of the measure on each signature page.8 “[B]oth the gist and the ballot title work[ed] together to prevent fraud in the initiative process.”9 However, as we noted in In re Initiative Petition No. 403, 2016 OK 1, 367 P.3d 936 472, pursuant to the amendments to Title 34 effective April 28, 2015, the ballot title is now to be filed separately from the petition and is no longer “part of or printed on the petition.”10 Thus, the more-detailed ballot title is no longer circulated to potential signatories as part of the pamphlet, and the gist is now the only shorthand explanation of the proposal’s effect. The gist alone must now work to prevent fraud, corruption, and deceit in the initiative process.11 ¶5 In the petition we consider today, the gist provides: This measure amends the entirety of Article XXVIII of the Oklahoma Constitution, as an amendment by Article repealing Article XXVIII and adopting Article XXVIIIA. It provides equal opportunity guarantees for Oklahoma businesses. It permits licensees that currently hold licenses to sell low-point beer to sell all beer and malt beverages regardless of percent alcohol by volume. It allows certain business entities, including grocery stores, to qualify for a license to sell wine for off-premises consumption. It allows small brewers as defined by law to sell their products at a brewery or festival or trade show and allows them to sell alcoholic beverage by the drink at a restaurant co-located on the premises of the brewery. It provides that all employees who handle or sell alcoholic beverages must obtain an employee license from the Alcoholic Beverage Laws Enforcement (ABLE) Commission. It permits Retail Package Store licensees to sell any and all items that are sold in convenience and grocery stores. It permits Retail Package Stores to offer services associated with the promotion of or education in their products. It permits Retail Package Store licensees and Retail Wine Grocery Store licensees to sell their products on any day of the year except for Thanksgiving Day and Christmas Day. It eliminates the prohibition of advertising of alcoholic beverages. It provides funding for the Department of Mental Health for treatment and prevention of mental health disease. The Amendments take effect on July 1, 2017.12 ¶6 The petition makes significant changes to the liquor laws of this state; however, certain changes are recognizably absent from the gist. Pursuant to the petition, no Retail Package Store license or Retail Grocery Wine Store license can be issued to any grocery store, The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 warehouse club, or supercenter located within 2,500 feet of an existing Retail Package Store or Retail Grocery Wine Store, making many grocery stores ineligible for a Retail Grocery Wine Store license.13 Only one Retail Grocery Wine Store license will be issued by ABLE to entities with multiple stores, again limiting a grocery store’s eligibility for a Retail Grocery Wine Store license.14 Finally, only Retail Package Store licenses that have been in existence for more than two years from the date the ABLE Commission issues the first Retail Grocery Wine Store license shall be eligible for purchase for the purpose of converting to a Retail Grocery Wine Store license, again restricting the number of grocery store wine retailers.15 ¶7 The gist fails to alert potential signatories of the changes being made to the law and does not provide a potential signatory with sufficient information to make an informed decision about the true nature of the proposed constitutional amendment. See In re Initiative Petition No. 384, 2007 OK 48, ¶¶ 11-12, 164 P.3d at 129-30. We hold that the gist of the petition does not fairly describe the proposed constitutional amendment and is invalid. The gist is not subject to amendment by this Court, and as a result, the only remedy is to strike the petition from the ballot.16 INITIATIVE PETITION NO. 409, STATE QUESTION NO. 785, IS DECLARED INVALID AND ORDERED STRICKEN FROM THE BALLOT ¶8 Combs, V.C.J., Kauger, Winchester, Edmondson, Taylor (by separate writing), Colbert, Gurich, JJ., concur; Taylor, J., with whom Kauger, J., joins, concurring: The problem with this gist is exactly the same problem that I pointed out in my dissent in In re Initiative Petition No. 403, 2016 OK 1, wherein I stated, “The gist is dead on Vol. 87 — No. 13 — 5/14/2016 arrival. Along with the unconstitutionality of Initiative Petition No. 403, the gist or proposed ballot title deceives potential signatories and potential voters. I would send Initiative Petition No. 403 back to the Respondents as the gist does not satisfy the statutory requirements set out by the Legislature.” The exact same problem exists in this case and therefore I concur. ¶9 Reif, C.J., dissent. ¶10 Watt, J., not participating. GURICH, J. 1. 34 O.S. 2011 § 3. 2. In re Initiative Petition No. 363, 1996 OK 122, ¶ 18, 927 P.2d 558, 567 (citing Cmty. Gas and Serv. Co. v. Walbaum, 1965 OK 118, 404 P.2d 1014). 3. In re Initiative Petition No. 384, 2007 OK 48, ¶ 7, 164 P.3d at 129 (quoting In re Initiative Petition No. 342, 1990 OK 776, 797 P.2d 331). 4. Id., ¶ 8, 164 P.3d at 129. 5. Id., ¶¶ 8-9, 164 P.3d at 129 (quoting In re Initiative Petition No. 363, 1996 OK 122, 927 P.2d 558). 6. Id., ¶ 9, 164 P.3d at 129 (quoting In re Initiative Petition No. 363, 1996 OK 122, 927 P.2d 558). 7. In 1985, the Legislature created the gist requirement. See 34 O.S. Supp. 1985 § 3. 8. 34 O.S. 2011 § 2. 9. In re Initiative Petition No. 397, 2014 OK 23, ¶ 64, 326 P.3d 496, 518. 10. 34 O.S. Supp. 2015 § 8(A). Compare 34 O.S. Supp. 2015 § 2 (“Insert here an exact copy of the text of the measure.”) with 34 O.S. 2011 § 2 (“Insert here an exact copy of the title and text of the measure.”). Although the ballot title review process, and any challenge to the ballot title, must now statutorily come after the circulation period pursuant to § 8, the statute remains silent with regard to when a challenge to the gist of the petition must be made. We find that a pre-circulation challenge to the gist of the petition is appropriate as the gist remains a necessary part of the pamphlet circulated to potential signatories. We need not decide today whether a post-circulation challenge to the gist of the petition would also be appropriate as those are not the circumstances before us in this case. 11. No changes were made to Section 3 — the gist requirement — in the 2015 amendments to Title 34. 12. See Petitioners’ Appendix to Application to Assume Original Jurisdiction. 13. Initiative Petition No. 409, § 10. 14. Initiative Petition No. 409, § 10. 15. Initiative Petition No. 409, § 10; § 12. Opponents’ argument that all beer, including 3.2% beer, will now be taxed as alcohol, effectively raising taxes on beer sold at grocery stores and convenience stores, is speculation at this point. We decline to engage in speculation in our consideration of the validity of the gist. See In re Initiative Petition No. 358, 1994 OK 27, ¶ 12, 870 P.2d 782, 787. 16. Because we conclude that the gist is legally insufficient, we need not address Opponents’ constitutional arguments. The Oklahoma Bar Journal 937 Court of Criminal Appeals Opinions 2016 OK CR 9 FACTS BRUCE CONWAY STEWART, JR., Appellant, v. THE STATE OF OKLAHOMA, Appellee. ¶4 On August 16, 2014, at approximately 11:45 p.m., Oklahoma Highway Patrol Trooper Aaron Hunter observed Appellant make an improper turn from U.S. Highway 183 onto Gary Boulevard, in Clinton, Oklahoma. Appellant deviated from the direct course and travelled into the outside lane during his turn. The windshield on the vehicle that Appellant was driving was cracked in the critical area within the span of the driver’s side windshield wiper area. Trooper Hunter initiated his emergency lights and stopped Appellant’s vehicle. As Appellant exited the car, Hunter observed a small package fall onto the pavement. Appellant picked up the package and leaned back into the car for several seconds. When Appellant finally made his way back to Hunter’s patrol car, he informed the Trooper that he did not have a driver’s license because it was suspended. Case No. F-2015-282. April 26, 2016 OPINION LUMPKIN, VICE PRESIDING JUDGE: ¶1 Appellant, Bruce Conway Stewart, Jr., was tried by jury and convicted of Driving a Motor Vehicle While Under the Influence of Drugs (Count 1) (47 O.S.Supp.2013, § 11-902(A) (4)), After Two or More Felony Convictions, and Driving With License Suspended (Count 4) (47 O.S.2011, § 6-303), in the District Court of Custer County, Case Number CF-2014-256.1 The jury recommended as punishment imprisonment for twenty (20) years and a $5,000.00 fine in Count 1 and incarceration in the county jail for one (1) year and a $500.00 fine in Count 4. The trial court sentenced Appellant accordingly but reduced the fine in Count 1 to $500.00. The trial court further ordered the sentences to run concurrently. It is from this judgment and sentence that Appellant appeals. ¶2 Appellant raises the following propositions of error in this appeal: I. Improper evidence led to an excessive sentence. II. The evidence was insufficient to convict Mr. Stewart of Driving Under the Influence of Drugs. III. The trial court failed to instruct the jury on the definitions of “under the influence” and “impaired ability.” IV. Ineffective assistance of counsel denied Mr. Stewart a fair trial. ¶3 After a thorough consideration of these propositions and the entire record before us on appeal including the original records, transcripts, and briefs of the parties, we have determined the case should be remanded for resentencing. 938 ¶5 Hunter had Appellant take a seat inside the passenger seat in his patrol car. He observed that Appellant’s speech was very thick and slurred. His movements were abnormal and very exaggerated. Appellant used his hands a lot and made brisk movements. Appellant’s mouth was very dry and he smacked his lips a lot while talking. Hunter recognized all of these as indicators of methamphetamine or stimulant use. When Hunter asked Appellant if he had used methamphetamine or any stimulants, Appellant advised that he had done so in the past. ¶6 Appellant remained nervous throughout the encounter. Hunter could see Appellant’s pulse beating in the side of his neck. He also observed Appellant’s pulse beat through his stomach area. Five minutes after Hunter had Appellant take a seat in the patrol car, Hunter checked Appellant’s pulse and observed that it was outside the normal range of 60 to 72 beats per minute. Hunter determined that Appellant’s pulse was elevated to 110 beats per minute. Appellant’s elevated heart rate was also a sign of methamphetamine or stimulant use. ¶7 When Lieutenant Paul Christian arrived to assist Hunter with the passenger in the vehicle, Hunter had Appellant step out of the patrol car. Hunter performed the Romberg The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 sobriety test on Appellant and had him estimate the passage of 30 seconds. Appellant’s perception of time was sped up. Appellant estimated that 30 seconds had passed after only 11 seconds. A normal response on this test is between 27 and 33 seconds. Because stimulant use speeds up the processes and causes the user to think that time is passing faster than it actually is, Appellant’s test result suggested to Hunter that Appellant was under the influence of intoxicants. Based upon his training and experience, Hunter believed that Appellant was extremely intoxicated. ¶8 Lieutenant Christian observed Appellant during the time that Hunter gave him the Romberg test. He noticed that Appellant was unsteady on his feet, very animated, and fidgety. Appellant was sweating profusely and his shirt was wet with sweat. Christian believed that Appellant was under the influence of methamphetamine. ¶9 The Troopers placed Appellant under arrest and searched the vehicle which Appellant had been driving. Hunter found a Crown Royal bag between the driver’s seat and the center console. Inside the bag were 4 plastic baggies containing marijuana, a single plastic baggy containing methamphetamine, and a marijuana smoking pipe. ¶10 The Troopers took Appellant to the Custer County Jail. They offered him a blood test but Appellant refused to take the test. Detention Officer Audrey Mejia booked Appellant into the jail. She noticed that Appellant was sweating, jittery, dramatic and kind of agitated looking. Based upon her training and experience she believed that Appellant was intoxicated on methamphetamine. ANALYSIS ¶11 In Proposition One, Appellant contends that the trial court committed error when it admitted prejudicial evidence during the second stage of the trial. He argues that this improper evidence caused the jury to recommend an excessive sentence in Count 1. ¶12 Appellant concedes that he waived appellate review of this issue when he failed to raise this challenge before the trial court. Simpson v. State, 1994 OK CR 40, ¶¶ 2, 23, 876 P.2d 690, 692-93, 698. Therefore, we review Appellant’s claim pursuant to the test set forth in Simpson. Under this test, an appellant must show an actual error, which is plain or obvious, Vol. 87 — No. 13 — 5/14/2016 and which affects his substantial rights. Malone v State, 2013 OK CR 1, ¶ 41, 293 P.3d 198, 211212; Levering v. State, 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395; Simpson, 1994 OK CR 40, ¶¶ 10, 26, 30, 876 P.2d at 694, 699, 701. We will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. ¶13 Appellant, first, argues that the State improperly introduced judgment and sentence documents which referenced suspended sentences, supervised probation and rules of probation. We find that Appellant has not shown that error occurred within this claim. ¶14 The longstanding rule is that the parties are not to encourage jurors to speculate about probation, pardon or parole policies. Florez v. State, 2010 OK CR 21, ¶ 4, 239 P.3d 156, 157; Hunter v. State, 2009 OK CR 17, ¶ 10, 208 P.3d 931, 933; Anderson v. State, 2006 OK CR 6, ¶ 11, 130 P.3d 273, 278. We determine whether, in light of the totality of the circumstances, the prosecution made such an unmistakable reference to the pardon and parole system of Oklahoma to result in prejudice to the defendant. Harney v. State, 2011 OK CR 10, ¶ 24, 256 P.3d 1002, 1007. ¶15 In the present case, the State introduced four separate judgment and sentence documents to prove Appellant’s prior felony convictions in the present case. State’s Exhibit Number 4 was a certified copy of Appellant’s Judgment and Sentence in the District Court of Custer County Case No. CF-2003-161, which reflected his conviction for the felony of Possession of Marijuana. State’s Exhibit Number 5 was a certified copy of Appellant’s Judgment and Sentence in Custer County District Court Case No. CF-2005-414, which reflected his conviction for the felony of Driving a Motor Vehicle While Under the Influence of Alcohol. State’s Exhibit Number 6 was a certified copy of Appellant’s Judgment and Sentence in the District Court of Woodward County Case No. CF-2009-51, which reflected Appellant’s conviction for Distribution of Controlled Substance (Marijuana). State’s Exhibit Number 7 was a certified copy of Appellant’s Judgment and Sentence in the District Court of Ellis County Case No. CF-2011-38 which reflected Appellant’s conviction for the felony of Driving a Motor Vehicle While Under the Influence of Alcohol. (Tr. 238-39). The Oklahoma Bar Journal 939 ¶16 Exhibit Numbers 5, 6, and 7 all referenced the fact that Appellant had received suspended sentences. Exhibit Numbers 6 and 7 both contained Rules and Conditions of Probation. ¶17 This Court has distinguished between the circumstance where a prosecutor makes an unmistakable comment upon probation or parole and the instance where the judgment and sentence documents reference probation or parole. See Darks v. State, 1998 OK CR 15, ¶ 59, 954 P.2d 152, 167 (citing Richardson v. State, 1979 OK CR 100, ¶ 19, 600 P.2d 361, 367). The introduction of the judgment and sentence is a proper part of the proof of a former felony conviction. Camp v. State, 1983 OK CR 74, ¶¶ 2-3, 664 P.2d 1052, 1053-54. A judgment and sentence which indicates that the defendant received a suspended sentence, standing alone, does not constitute plain error. Id.; Honeycutt v. State, 1967 OK CR 154, ¶¶ 18-20, 432 P.2d 124, 128. In contrast, this Court has found that it is error for the prosecutor to explicitly inform the jury that the defendant has received a suspended sentence through reading this fact off of the Information during the State’s opening statement and calling the jury’s attention to this fact during closing argument. Hunter, 2009 OK CR 17, ¶ 9-10, 239 P.3d at 933-34. ¶18 Reviewing the totality of the circumstances in the present case, we find that the prosecutor did not make an unmistakable comment upon probation or parole in the present case. The prosecutor did not explicitly inform the jurors that Appellant had received suspended sentences. Instead, the prosecutor argued during closing argument that Appellant kept breaking the law and had averaged one felony every three years over the last twelve years. The prosecutor then asked the jurors to look at the judgment and sentence documents to see what had happened. He asked the jurors to look at the dates on them. As such, we find that error, much less plain error, did not occur. ¶19 Appellant further argues that the judgment and sentence documents included extraneous information which was unfairly prejudicial to him. We note that relevant evidence is generally admissible. Andrew v. State, 2007 OK CR 23, ¶ 61, 164 P.3d 176, 193; see also Postelle v. State, 2011 OK CR 30, ¶ 31, 267 P.3d 114, 131 (“Relevant evidence is evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be 940 without the evidence.”). However, the Oklahoma Evidence Code provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise. 12 O.S.2011, § 2403. “When measuring the relevancy of evidence against its prejudicial effect, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.” Mayes v. State, 1994 OK CR 44, ¶ 77, 887 P.2d 1288, 1310. ¶20 Reviewing the record, we find that Appellant has shown an error that is plain or obvious in the absence of any objection at trial. It appears that the prosecutor failed to redact unfairly prejudicial materials from the judgment and sentence documents. Exhibit Numbers 4 and 5 both contained the Form 13.8(A), Additional Findings at Time of Sentencing, which had been filed of record in those cases after the district court sentenced Appellant.2 Each of the forms was attached to the last page of the judgment and sentence document. It appears that the individual who prepared the Form 13.8(a) forms did not complete the documents but instead attached copies of Appellant’s criminal histories to those forms. The form attached to Exhibit Number 4 states: “See OSBI Rap Sheet.” Criminal history records follow both of the Form 13.8(A) documents. The criminal histories are dated at or around the time of the arrests which led to Appellant’s prior convictions. The last page of Exhibit Number 4 is the Bench Warrant issued for Appellant’s failure to appear at preliminary hearing in that case. It contains the Custer County Court Clerk’s certification stamp. The last page of Exhibit Number 5 is the last page of the criminal history document and contains the Custer County Court Clerk’s certification stamp. ¶21 These additional pages were irrelevant and prejudicial. Our Rules explicitly provide that Form 13.8(A) “shall not be admitted into evidence in any future prosecutions.” Section XIII, Form 13.8(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015). ¶22 The Oklahoma State Bureau of Investigation criminal history which was attached to Exhibit Number 4 indicated that Appellant had a prior felony conviction for Second Degree Burglary in the District Court of Bryan County. The NCIC Interstate Identification Index which The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 was attached to Exhibit Number 5 listed both the Bryan County conviction and a conviction for Second Degree Burglary in New Madrid County, New Mexico. The State had not alleged either of these convictions in the second page of the Information. (O.R. 69-70). The Driver’s License Master Record which was attached to Exhibit Number 5 reflected Appellant’s commission of other drug and alcohol offenses and administrative actions. The State was required to redact this other crimes and bad acts evidence from the judgment and sentence exhibits. Harney, 2011 OK CR 10, ¶¶ 16-17, 256 P.3d at 1006. ¶23 As this evidence was introduced during the second stage of the trial, the jury’s determination of Appellant’s guilt was not affected. However, we find that this improper evidence affected Appellant’s substantial rights and seriously affected the fairness of the sentencing proceeding. Because the jury recommended the maximum punishment under the statutory range of punishment for the offense, we cannot find that this error was harmless. Harney, 2011 OK CR 10, ¶ 19, 256 P.3d at 1006. Therefore, we find that the case should be remanded to the district court for resentencing. Id., citing 22 O.S.2011, § 929. ¶24 In Proposition Two, Appellant challenges the sufficiency of the evidence supporting his conviction for Driving a Motor Vehicle While Under the Influence of Drugs. Reviewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559; Plantz v. State, 1994 OK CR 33, ¶ 43, 876 P.2d 268, 281; Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204. Any rational trier of fact could have found that Appellant was under the influence. Trooper Hunter, Lieutenant Christian, and Officer Mejia all testified that based upon their experience and training they believed that Appellant was under the influence of methamphetamine. The description of Appellant’s physical condition coupled with the traffic violation that Appellant committed tended to establish that an intoxicating substance had so far affected Appellant as to hinder, to an appreciable degree, his ability to operate a motor vehicle in a manner that an ordinary prudent and cautious person, if in full possession of his faculties, using reasonable care, would operate or drive under like condiVol. 87 — No. 13 — 5/14/2016 tions. Stanfield v. State, 1978 OK CR 34, ¶ 8, 576 P.2d 772, 774. Proposition Two is denied. ¶25 In his third proposition of error, Appellant contends that the trial court committed reversible error by failing to instruct the jury on the definitions of “under the influence” and “with impaired ability.” See Inst. Nos. 6-24, 6-35, OUJI-CR(2d) (Supp.2005). He concedes that he waived appellate review of this issue when he failed to raise this challenge before the trial court. Romano v. State, 1995 OK CR 74, ¶ 80, 909 P.2d 92, 120; Simpson, 1994 OK CR 40, ¶ 2, 23, 876 P.2d at 692-93, 698. Therefore, we review Appellant’s claim pursuant to the test set forth in Simpson and determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his substantial rights. Malone, 2013 OK CR 1, ¶ 41, 293 P.3d at 211-12; Levering, 2013 OK CR 19, ¶ 6, 315 P.3d at 395; Simpson, 1994 OK CR 40, ¶¶ 10, 26, 30, 876 P.2d at 694, 699, 701. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. ¶26 In Slusher v. State, 1991 OK CR 83, ¶ 5, 814 P.2d 504, 505, this Court held “unequivocally that the terms ‘under the influence’ and ‘with impaired ability’ when such constitute an element of the offense, must always be defined in the instructions, whether requested or not, and the failure to so define is fundamental error which will result in reversible error.” The State concedes that the trial court failed to instruct the jury concerning the requisite definitions but argues that Slusher conflicts with more recent cases holding that the omission of jury instructions, even those defining elements of an offense, can be harmless. We agree. ¶27 After Slusher was decided, this Court determined in Simpson, that the concept of fundamental error had been codified by the Oklahoma Evidence Code as plain error. Simpson, 1994 OK CR 40, ¶ 2, 876 P.2d at 692-93. We explicitly found that fundamental error, i.e., plain error, is subject to harmless error analysis and overruled Spears v. State, 1991 OK CR 13, 805 P.2d 681, which had held to the contrary. Simpson, 1994 OK CR 40, ¶¶ 2, 8-9, 20, 876 P.2d at 693, 694, 698. If an appellant meets the heavy burden of demonstrating plain error, then “that plain error is subject to harmless error analysis.” Id., 1994 OK CR 40, ¶¶ 20, 34, 876 P.2d at 698, 701. If the error is a constitutional violation, we review to determine whether the error The Oklahoma Bar Journal 941 was harmless beyond a reasonable doubt. Id., 1994 OK CR 40, ¶¶ 34-35, 876 P.2d at 701-02. If the error is the result of the failure to adhere to state law, it is considered harmless unless the error had a substantial influence on the outcome of the case or leaves the Court in grave doubt as to whether it had such an effect. Id., 1994 OK CR 40, ¶¶ 34-35, 876 P.2d at 701-02. ¶28 Thereafter, the United States Supreme Court in Neder v. United States, 527 U.S. 1, 7-9, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999), held that an instruction that omits an element of an offense can be subject to the harmless error doctrine. In Primeaux v. State, 2004 OK CR 16, 88 P.3d 893, this Court recognized the Supreme Court’s holding in Neder and determined that only those errors which have been previously identified as structural errors, require reversal regardless of the effect on the outcome. Id., 2004 OK CR 16, ¶¶ 77, 81, 88 P.3d at 907-08 (citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). If an instruction omits an element of the offense or relieves the State of its burden of persuasion, the inquiry is whether it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. Primeaux, 2004 OK CR 16, ¶ 82, 88 P.3d at 908; Burgess v. State, 2010 OK CR 25, ¶ 21, 243 P.3d 461, 465. ¶29 Therefore, Slusher is in conflict with this Court’s plain error and harmless error jurisprudence. To the extent that Slusher predetermines that instructional error requires reversal, it is overruled. ¶30 Turning to the present case, we find that plain error occurred. The trial court failed to instruct the jury concerning the definitions of “under the influence” and “with impaired ability.”3 However, it is clear beyond a reasonable doubt that a rational jury would have found Appellant guilty absent this error. Primeaux, 2004 OK CR 16, ¶ 82, 88 P.3d at 908. The trial court properly instructed the jury concerning all of the necessary elements of the charged offense. Inst. No. 6-19, OUJI-CR(2d) (Supp. 2012)). This instruction required the jury to determine that Appellant was under the influence of an intoxicating substance which was capable of rendering him incapable of safely driving a motor vehicle. ¶31 The evidence of Appellant’s guilt was uncontroverted. All of the witnesses believed that he was intoxicated on methamphetamine. The witnesses all agreed that Appellant was 942 very animated, fidgety, dramatic, and was sweating profusely. Trooper Hunter observed additional signs of methamphetamine intoxication. He noted that Appellant’s speech was very thick and slurred. His mouth was very dry and he smacked his lips a lot while talking. Appellant’s pulse was readily observable through his neck and stomach areas. Hunter determined that Appellant’s pulse rate was elevated. ¶32 The evidence clearly established that Appellant’s intoxicated state hindered his ability to safely operate a motor vehicle. Stanfield, 1978 OK CR 34, ¶ 8, 576 P.2d at 774. Appellant deviated from the direct course and allowed his vehicle to travel into the outside lane. He dropped a package on the ground when he exited his car and then leaned into the car for several seconds. Trooper Christian observed that Appellant was unsteady on his feet. Trooper Hunter observed that Appellant’s movements were exaggerated and abnormal. His perception of time was inaccurate as it was sped up. Accordingly, we find that the trial court’s error did not seriously affect the fairness, integrity or public reputation of the judicial proceedings or otherwise represent a miscarriage of justice. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923; Simpson, 1994 OK CR 40, ¶¶ 27-30, 876 P.2d at 700-01. Proposition Three is denied. ¶33 In Proposition Four, Appellant challenges the effectiveness of his counsel at trial. We find that he has not shown ineffective assistance of counsel pursuant to the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Mitchell v. State, 2011 OK CR 26, ¶ 139, 270 P.3d 160, 190. ¶34 Appellant asserts that defense counsel was ineffective when he failed to object to the admission of the documents which he challenged in Proposition One. We determined that Appellant had shown plain error and was entitled to relief in this proposition. As such, we find Appellant’s ineffective assistance of counsel claim moot. ¶35 Appellant further asserts that defense counsel was ineffective when he failed to request the instructions which he asserts the omission of which constituted error in Proposition Three. We determined in Proposition Three that the trial court’s error was harmless. As such, we find that Appellant has not shown The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 a reasonable probability that the outcome of the trial would have been different but for counsel’s failure to raise the challenge that he now raises on appeal. Andrew, 2007 OK CR 23, ¶ 99, 164 P.3d at 198; Glossip v. State, 2007 OK CR 12, ¶¶ 110-12, 157 P.3d 143, 161. Proposition Four is denied. DECISION ¶36 The Judgment and Sentence of the District Court on Count 4 is AFFIRMED. Appellant’s conviction for Driving a Motor Vehicle While Under the Influence of Drugs in Count 1 is AFFIRMED but the case is REMANDED TO THE DISTRICT COURT FOR RESENTENCING CONSISTENT WITH THIS OPINION. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF CUSTER COUNTY THE HONORABLE JILL C. WEEDON, ASSOCIATE DISTRICT JUDGE APPEARANCES AT TRIAL Micah Sielert, Michael Housely, Oklahoma Indigent Defense System, P.O. Box 1494, Clinton, OK 73601, Counsel for Defendant Ricky A. McPhearson, Assistant District Attorney, P.O. Box 36, Arapaho, OK 73620, Counsel for the State APPEARANCES ON APPEAL Rana Hill, Appellate Defense Counsel, P.O. Box 926, Norman, OK 73070, Counsel for Appellant E. Scott Pruitt, Attorney General of Oklahoma, Timothy J. Downing, Assistant Attorney General, 313 N.E. 21st St., Oklahoma City, OK 73105, Counsel for the State Vol. 87 — No. 13 — 5/14/2016 OPINION BY: LUMPKIN, V.P.J. SMITH, P.J.: Concur in Result JOHNSON, J.: Concur in Result LEWIS, J.: Concur HUDSON, J.: Concur JOHNSON, JUDGE, CONCURRING IN RESULT: ¶1 I concur in the decision to affirm the Judgment and Sentence on Count 4. I further agree with the decision to affirm Stewart’s conviction on Count 1 as well as with the decision to remand the matter for resentencing because of the admission of prejudicial material (Form 13.8(A)) submitted with the Judgment and Sentence documents offered for sentence enhancement. I cannot join, however, in the majority’s plain error analysis in Proposition I because I find the prosecutor erred by exhorting the jurors to review Judgment and Sentence documents, including the dates, that clearly showed Stewart had received suspended sentences. See Hunter v. State, 2009 OK CR 17, ¶ 10, 208 P.3d 931, 933-34. Furthermore, I continue to adhere to the plain error review discussed in Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923 that is based on the federal statutory plain error review explained in United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). ¶2 I am authorized to state that Judge Smith joins in this opinion concurring in result. 1. The jury acquitted Appellant as to the offenses of Possession of Controlled Dangerous Substance (methamphetamine and marijuana) (Count 2) (63 O.S.Supp.2012, § 2-402), and Unlawful Possession of Drug Paraphernalia (Count 3) (63 O.S.2011, § 2-405). 2. This Court adopted Form 13.8(A), at the request of the Oklahoma Legislature, to document the past criminal record of a defendant prior to sentencing. 3. An instruction on the definition of “with impaired ability” was necessary because the trial court instructed the jury concerning the lesser offense of Driving While Impaired. (47 O.S.2011, § 761). The Oklahoma Bar Journal 943 The Sovereignty Symposium 2016 EVERYTHING CHANGES Skirvin The June 8 - 9, 2016 Hotel u Oklahoma City, Oklahoma Presented by The Oklahoma Supreme Court Indian Law Section of the Oklahoma Bar Association The University of Tulsa College of Law The University of Oklahoma College of Law Oklahoma City University School of Law and The Sovereignty Symposium, Inc. 17 hours of CLE credit for lawyers will be awarded, including 3.5 hours of ethics. NOTE: Please be aware that each state has its own rules and regulations, including the definition of “CLE”; therefore, certain portions of the program may not receive credit in some states. The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal issues could be exchanged in a scholarly, non-adversarial environment. The Supreme Court espouses no view on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court. THE SOVEREIGNTY SYMPOSIUM AGENDA Wednesday, June 8, 2016 a.m. 4 CLE credits / 0 ethics included p.m. 5.5 CLE credits / 3.5 ethics included Wednesday Morning 7:30 – 4:30 Registration (Honors Lounge) 8:00 – 8:30 Complimentary Continental Breakfast 10:30 – 10:45 Morning Coffee / Tea Break 12:00 – 1:15 Lunch on your own 8:30 – 12:00 PANEL A: ECONOMIC DEVELOPMENT (THIS PANEL CONTINUES FROM 2:45- 5:30) CRYSTAL ROOM MODERATOR: JAMES C. COLLARD, Director of Planning and Economic Development, Citizen Potawatomi Nation KAREN BELL, Her Britannic Majesty’s Consul-General CHRIS BENGE, (Cherokee) Oklahoma Secretary of State BOBBY CLEVELAND, Representative for District Twenty, Oklahoma House of Representatives DAVID NIMMO, Chief Executive Officer/President, Chickasaw Nation Industries DEREK OSBORN, Legislative Assistant to Senator James Lankford MICHAEL S. NEAL, President and CEO, Tulsa Regional Chamber 8:30 – 12:00 PANEL B: SIGNS, SYMBOLS AND PHOTOGRAPHS: A CULTURAL VISUAL LANGUAGE MODERATOR: KEITH RAPP, Judge, Oklahoma Court of Civil Appeals CO-MODERATOR: NEIL CHAPMAN, Photographer, former Mt. San Antonio College Photography Department Co-Chair and Professor of Photography 944 KELLY HANEY, (Seminole), Artist, former Oklahoma State Senator, former Chief of the Seminole Nation STU OSTLER, Oklahoma State Capitol Photographer CHESTER COWEN, Oklahoma Historical Society, Still Photo Archivist DANIEL BRACKETT, Oklahoma Native American Art Collection; Chair, Board of Trustees, Oscar Jacobson Foundation WINSTON SCAMBLER, Student of Native American Art ERIC TIPPECONNIC, (Comanche), Artist and Professor, California State University, Fullerton LES BERRYHILL, (Yuchi/Muscogee), Artist KENNETH JOHNSON, (Muscogee (Creek)/Seminole), Contemporary Jewelry Designer and Metalsmith 8:30 – 12:00 PANEL C: TRUTH AND RECONCILLIATION: GENERATIONAL/HISTORICAL TRAUMA AND HEALING MODERATOR: NOMA GURICH, Justice, Oklahoma Supreme Court BRETT LEE SHELTON, (Oglala Sioux), Attorney, Native American Rights Fund KATHRYN ENGLAND-AYTES, (Cherokee descendant) Professor, California State University, Monterey Bay ETHLEEN IRON CLOUD-TWO DOGS, (Oglala Lakota), Tiyospaye Sakowin Education and Healing Center (via Webcam) ROBERT E. HAYES, JR., Methodist Bishop of Oklahoma DAVID WILSON, (Choctaw) Conference Superintendent, Oklahoma Indian Missionary Conference GORDON YELLOWMAN, (Cheyenne), Peace Chief, Assistant Executive Director of Education, Cheyenne and Arapaho Tribes KRIS LADUSAU, Reverend, Dharma Center of Oklahoma The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 1:15 – 2:30 OPENING CEREMONY AND KEYNOTE ADDRESS GRAND BALLROOMS D-F MASTER OF CEREMONIES – STEVEN TAYLOR, Justice, Oklahoma Supreme Court PRESENTATION OF FLAGS HONOR GUARDS: Kiowa Black Leggings SINGERS: SOUTHERN NATION CAMP CALL: GORDON YELLOWMAN INVOCATION: KRIS LADUSAU, Reverend, Dharma Center of Oklahoma WELCOME: MARY FALLIN, Governor of Oklahoma WELCOME: GARVIN ISAACS, President, Oklahoma Bar Association WELCOME: JAY WILLIAMS, United States Assistant Secretary of Commerce for Economic Development WELCOME AND INTRODUCTION OF KEYNOTE SPEAKERS: JOHN REIF, Chief Justice, Oklahoma Supreme Court SPEAKERS: SUZAN SHOWN HARJO, (Cheyenne and Hodulgee Muscogee), Morning Star Institute KAREN BELL, Her Brittanic Majesty’s Consul-General PRESENTATION OF AWARDS, YVONNE KAUGER, Justice, Oklahoma Supreme Court HONOR AND MEMORIAL SONGS: SOUTHERN NATION CLOSING PRAYER: ROBERT E. HAYES, Jr., Methodist Bishop of Oklahoma 2:30 – 2:45 Tea / Cookie Break for all Panels 2:45 – 5:30 PANEL A: ECONOMIC DEVELOPMENT A CONTINUATION OF THE MORNING PANEL CRYSTAL ROOM MODERATOR: JAMES C. COLLARD, Director of Planning and Economic Development, Citizen Potawatomi Nation DAVID WALTERS, President, Walters Power International, former Governor of Oklahoma ROBERT ANDREW, United States Department Diplomat in Residence, University of Oklahoma GAVIN CLARKSON, Associate Professor, College of Business, New Mexico State University MICHAEL DAVIS, President, Oklahoma Finance Authority BRYAN MITCHELL, CH2M LAUREN KING, (Muscogee (Creek), Foster Pepper PLLC, Appellate Judge – Northwest Intertribal Court System 2:45 – 5:30 PANEL B: ETHICS JOHN REIF, Chief Justice, Oklahoma Supreme Court 2:45 – 5:30 PANEL C: EDUCATION MODERATOR: DEBORAH BARNES, Judge, Oklahoma Court of Civil Appeals CO-MODERATOR: QUINTON ROMAN NOSE, (Cheyenne), Executive Director, Tribal Education Departments National Assembly JOY HOFMEISTER, State Superintendent of Public Instruction WILLIAM MENDOZA, United States Department of Education MATT CAMPBELL, Native America Rights Fund PHILIP GOVER, Managing Director, Sovereign Schools Project, TEDNA ALEX RED CORN, Special Coordinator for Indigenous Partnerships, College of Education, Kansas State University DWIGHT PICKERING, Director, American Indian Education for Oklahoma ROBERT COOK, Director, Native American Alliance, Teach for America JOHN HARGRAVE, President, East Central University DAN LITTLE, Little Law Firm Vol. 87 — No. 13 — 5/14/2016 FRANK WANG, President, Oklahoma School of Science and Mathematics 2:45 – 5:30 PANEL C: CRIMINAL LAW MODERATOR: CLANCY SMITH, Presiding Judge, Oklahoma Court of Criminal Appeals CO-MODERATOR: ARVO MIKKANEN, (Kiowa/Comanche), Assistant United States Attorney and tribal liaison, Western District of Oklahoma MARK YANCEY, Acting United States Attorney for the Western District of Oklahoma ED SNOW, Assistant United States Attorney for the Eastern District of Oklahoma ROBERT DON GIFFORD, (Cherokee), Assistant United States Attorney and tribal liaison, Western District of Oklahoma RANDY WESLEY, (Chickasaw), Chief, Chickasaw Nation Lighthorse Police JIM COY, (Comanche), Former Executive Director, Oklahoma Association of Chiefs of Police 6:15 OKLAHOMA JUDICIAL CENTER SHOWING OF THE RESTORED SILENT FILM – DAUGHTER OF THE DAWN BOB BLACKBURN, Executive Director, Oklahoma Historical Society 7:00 RECEPTION-OKLAHOMA JUDICIAL CENTER Thursday, June 9, 2016 a.m. 3.5 CLE credits / 0 ethics included p.m. 4 CLE credits / 0 ethics included Thursday Morning 7:30 – 4:30 Registration 8:00 – 8:30 Complimentary Continental Breakfast 10:30 – 10:45 Morning Coffee / Tea Break 12:00 – 1:30 Lunch on your own 8:30 – 11:00 JOINT PANELS A AND B MODERATOR: WILLIAM HETHERINGTON, JR., Judge, Oklahoma Court of Civil Appeals, past District Judge, Cleveland County, Oklahoma CO - MODERATOR: SUE TATE, Court Improvement Project Coordinator, Oklahoma Administrative Office of the Courts JUVENILE LAW AND CHILDREN’S ISSUES: CONCERNS OF THE JUDICIARY In order to engage in a meaningful discussion of issues relating to children, the traditional Symposium panels dealing with Juvenile Law and the Concerns of the Judiciary will be a joint panel for this time period. The panel will deal with the ICWA and P.L., 113-183, preventing the sex trafficking of foster children. JOHN ROMERO, JR., District Judge Children’s Court Division, Albuquerque, New Mexico WHITNEY ANDERSON, (Chickasaw), Beautiful Dreams Society BLAINE PHILLIPS or MIKE SNOWDEN, Oklahoma State Bureau of Narcotics JESSICA CADENAS JARVIS, United States Attorney and Tribal Liaison for the U.S. Attorney’s Office for the Western District of Oklahoma 10:45 – 12:00 C. STEVEN HAGER, Director of Litigation, Oklahoma Indian Legal Services 11:00 – 12:00 STATE-TRIBAL-FEDERAL JUDGE MEETING 8:30 – 12:00 PANEL C: DEFENSE MODERATOR: JERRY GOODMAN, Judge, Oklahoma Court of Civil Appeals The Oklahoma Bar Journal 945 CO - MODERATOR: CHRISTOPHER C. STRAUB, Vice President, AMAR U.S JEFF KEEL, (Chickasaw), CNI Advantage, LLC STEVEN BILBY, Cherokee Nation STEVEN BENEFIELD, CEO, Choctaw Defense Manufacturing Representative, Contracting, Tinker Air Force Base WILLIAM P. BOWDEN, Major General (Retired), United States Air Force LINDY RITZ, The Ritz Group, retired Director, Mike Monroney Aeronautical Center CHAD KNAPP, Special Agent, Federal Bureau of Investigation D.G. SMALLING, (Choctaw) DAVID CID, former agent, Federal Bureau of Investigation, former Deputy Director, Memorial Institute for the Prevention of Terrorism DAVID N. EDGAR, Senior Fellow, University of Oklahoma Center for Intelligence and National Security 8:30 – 12:00 PANEL D: SACRED SPACES MODERATOR: NOMA GURICH, Justice, Oklahoma Supreme Court CO-MODERATOR: C. BLUE CLARK, Muskogee (Creek), Professor and David Pendleton Chair of American Indian Law, History, and Religion, Oklahoma City University School of Law GEORGE THOMPSON, Chief of the Hickory Ground of Oklahoma, Vice-Chief Justice, Supreme Court of the Muscogee Nation JAMES FLOYD, Principal Chief of the Muscogee Nation JEFFERSON KEEL, Lieutenant Governor of the Chickasaw Nation Thursday Afternoon 12:00 – 1:30 WORKING LUNCH FOR FEDERAL, STATE AND TRIBAL JUDICIARY AND SOVEREIGNTY SYMPOSIUM FACULTY 3:30 – 3:45 Tea / Cookie Break for all Panels 1:30 – 5:00 PANEL A: THE CONCERNS OF THE JUDICIARY — A FOCUS ON MUTUAL CONCERNS OF THE TRIBAL — STATE AND FEDERAL BENCH The panel will consider how to accord full faith and credit to judicial decisions. MODERATOR: THOMAS S. WALKER, (Wyandotte/Cherokee), Appellate Magistrate for the CFR Court, District Judge (retired), Brigadier General, (retired) WILLIAM HETHERINGTON, JR., Judge, Oklahoma Court of Civil Appeals, past District Judge, Cleveland County, Oklahoma CASEY ROSS PETHERICK, Professor, Oklahoma City University School of Law TRICIA A. TINGLE, (Choctaw) Associate Director – Tribal Justice Support, Office of Justice Services, Bureau of Indian Affairs DIANNE BARKER HAROLD, (Cherokee), Tribal Judge GREGORY BIGLER, (Euchee, enrolled Muscogee (Creek)), District Judge, Muskogee (Creek) Nation Tribal Court LAUREN KING, (Muscogee (Creek)), Attorney – Foster Pepper PLLC, Appellate Judge – Northwest Intertribal Court System PATRICK B. MCGUIGAN, Editor, CapitolBeatOK, Senior Editor, The City Sentinel 1:30 – 5:00 PANEL B: JUVENILE LAW MODERATOR: BRIAN GOREE, Judge, Oklahoma Court of Civil Appeals CO – MODERATOR: JACQUE HENSLEY, (Kaw), Indian Affairs Liaison, Oklahoma Department of Human Services BRIAN HENDRYX, Deputy Assistant for Native American Affairs at OK Secretary of State SETH MCINTOSH, Muscogee (Creek) Nation Tribal Juvenile Justice Officer C. STEVEN HAGER, Director of Litigation, Oklahoma Indian Legal Services ELIZABETH BROWN, Associate District Judge, Adair County MARK MOORE, Associate District Judge, Blaine County 1:30 – 5:00 PANEL C: NEW VOICES IN NATIVE AMERICAN LITERATURE MODERATOR: JAMES EDMONDSON, Justice, Oklahoma Supreme Court CO-MODERATOR: GAYLEEN RABAKUKK, Author, Art of the Oklahoma Judicial Center WILEY BARNES, Editor, Chickasaw Press JEANNE DEVLIN, Publisher, Roadrunner Press TIM TINGLE, (Choctaw), Author SANDY THARP-THEE, (Cherokee), Author and Library Director of Iowa Tribe JOSHUA HINSON, (Chickasaw), Director of Chickasaw Language Program 1:30 – 5:00 PANEL D: GAMING CO-MODERATORS: MATTHEW MORGAN, Chickasaw Nation NANCY GREEN, ESQ., Green Law Firm, P.C., Ada, Oklahoma Opening Remarks: JONODEV CHAUDHURI, (Muscogee (Creek)), Chairman, National Indian Gaming Commission ERNIE L. STEVENS, JR., (Oneida), Chairman, National Indian Gaming Association MICHAEL HOENIG, NIGC, Office of General Counsel KYLE DEAN, Director, Center for Native American and Urban Studies, Oklahoma City University, Meinders School of Business SHEILA MORAGO, Oklahoma Indian Gaming Association G. DEAN LUTHEY, JR., Gable Gotwals MICHAEL D. MCBRIDE, III, Crowe & Dunlevy ELIZABETH HOMER, (Osage), Homer Law Chartered WILLIAM NORMAN, Hobbs, Strauss, Dean & Walker RICHARD GRELLNER, RJG Law, PLLC NOTICE Oklahoma State, Tribal and Federal Judges, will meet at the Sovereignty Symposium on June 9, 2016, at 11:00 a.m. The meeting will be held at the Skirvin Hotel, 1 Park Ave, Oklahoma City, Oklahoma. 946 The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 Everything Changes THE SOVEREIGNTY SYMPOSIUM XXIX June 8-9, 2016 Oklahoma City, Oklahoma Registration Form Name:______________________________________________ Occupation:___________________________________________ Address:___________________________________________________________________________________________________ City_______________________________________________________________________State________ Zip Code__________ Billing Address if different from above: City_______________________________________________________________________State________ Zip Code__________ Nametag should read:_________________________________________ Other:_________________________________________ Email Address and/or website:_________________________________________________________________________________ Telephone:Office:__________________________ Cell:___________________________ Fax:___________________________ Tribal Affiliation (if applicable)__________________________________________________________________________________ If Bar Association Member: Bar#_______________________________________State____________ 17 hours of CLE credit for lawyers will be awarded, including 3.5 hours of ethics. # of Persons Registration Fee $275.00 Amount Enclosed June 8 & 9 ($300 if postmarked after May 23, 2016) $175.00 June 9, 2016 Only ($200 if postmarked after May 23, 2016) Total Amount We ask that you register online at www.thesovereigntysymposium.com. This site also provides hotel registration information and a detailed agenda. For hotel registration please contact the Skirvin-Hilton Hotel at 1-405-272-3040. If you wish to register by paper, please mail this form to: THE SOVEREIGNTY SYMPOSIUM, INC. The Oklahoma Judicial Center Suite 1 2100 North Lincoln Boulevard Oklahoma City, Oklahoma 73105-4914 www.thesovereigntysymposium.com Presented by The Oklahoma Supreme Court The Oklahoma Bar Association Indian Law Section The University of Tulsa College of Law Vol. 87 — No. 13 — 5/14/2016 The University of Oklahoma College of Law Oklahoma City University School of Law The Sovereignty Symposium, Inc. The Oklahoma Bar Journal 947 CALENDAR OF EVENTS May 17 18 19 20 24 26 27 30 31 948 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Judge David B. Lewis 405-556-9611 or David Swank 405-325-5254 OBA Women in Law Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Ann E. Keele 918-592-1144 or Reign Grace Sikes 405-419-2657 OBA Indian Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Deborah Reed 918-728-2699 OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact Tiece Dempsey 405-609-5406 OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact John Morris Williams 405-416-7000 OBA Lawyers Helping Lawyers Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Jeanne M. Snider 405-366-5466 or Hugh E. Hood 918-747-4357 OBA Legal Intern Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact H. Terrell Monks 405-733-8686 OBA Professionalism Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Patricia Podolec 405-760-3358 June 2 3 6 7 10 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Gina Hendryx 405-416-7007 OBA Closed – Memorial Day 13 OBA Member Services Committee meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Peggy Stockwell 405-321-9414 14 OBA Lawyers Helping Lawyers Discussion Group; Office of Tom Cummings, 701 NW 13th St., Oklahoma City, OK 73012; Contact Jeanne M. Snider 405-366-5466 or Hugh E. Hood 918-747-4357 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact John H. Graves 405-684-6735 OBA Appellate Practice Section meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact Mark Koss 405-720-6868 OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michael Mannes 405-473-0352 OBA Access to Justice Committee meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michael Speck 405-205-5840 OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Professor Paul Clark 405-208-6303 or Brady Henderson 405-524-8511 OBA Military and Veterans Law Section; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Stanley L. Evans 405-521-3023 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Judge David B. Lewis 405-556-9611 or David Swank 405-325-5254 The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 Court of Civil Appeals Opinions 2016 OK CIV APP 20 JULIE GWEN SANFORD and S.D., Petitioners/Appellees, vs. BLAISE ALLYN SANFORD, Respondent/Appellant. Case No. 113,669. April 14, 2016 APPEAL FROM THE DISTRICT COURT OF COAL COUNTY, OKLAHOMA HONORABLE D. CLAY MOWDY, TRIAL JUDGE AFFIRMED Ellen Quinton, GOTCHER, BEAVER & QUINTON, McAlester, Oklahoma, for Petitioners/ Appellees Joshua A. Edwards, LAW OFFICES OF JAMES R. NEAL, PLLC, Ada, Oklahoma, for Respondent/Appellant KEITH RAPP, PRESIDING JUDGE: ¶1 The defendant, Blaise Allyn Sanford (Husband), appeals an Order granting a continuous protective order against him and in favor of the plaintiffs, Julie Gwen Sanford (Wife) and her minor child, S.D. BACKGROUND ¶2 As presented here, this appeal presents a single issue. Husband argues that the trial court erred by making the protective order continuous.1 Specifically, Husband argues that Title 22 O.S. Supp. 2014, § 60.4(G)(1)(b) specifies four grounds for a continuous order and that no evidence or finding exists to support any of those four listed grounds.2 ¶3 Wife testified to a series of physical and emotional abuse directed against her by Husband. The abuse included verbal abuse, assault, battery, and placing a gun to her head.3 Wife testified that the abuse was ongoing for over two years. She also told of an incident where Husband battered S.D.4 Wife stated that S.D. had observed incidents of abuse and was also the victim of Husband’s abuse. ¶4 On cross-examination, Wife acknowledged that she had requested and received a dismissal of a prior protective order.5 She explained that Husband had “conned” her into Vol. 87 — No. 13 — 5/14/2016 believing he had reformed, but soon afterward his abusive actions resumed. She stated that she did not know of any instance where Husband had violated the present protective order by contacting her or S.D., but she believed he had come to the residence when she was away. ¶5 S.D. testified about an incident when Husband beat and choked him. He related he observed Husband abusing his mother. ¶6 A friend of Wife’s testified about an event at a local drive-in when Husband attacked Wife. Husband attempted to strike Wife while Wife and the witness were seated in Wife’s vehicle. ¶7 Husband did not testify. Husband did not make any closing motions. The Record does not contain any request for findings of fact or conclusions of law. See 12 O.S.2011, § 611. ¶8 At the close of the evidence, the trial court entered a protective order and made it permanent. The trial court referenced the evidence generally and did not make any specific findings of fact or conclusions of law.6 The protective order is written on an Administrator of the Courts Form (AOC form), with checks on pertinent paragraphs. One paragraph, checked by the trial court, provides: 3) Duration: .... OR: 3b) The Court finds that one or more of the conditions set forth in 22 O.S. 60.4(G)(1)(b) exists in the present matter, and therefore this Final Protective Order shall be continuous without expiration until modified, vacated or rescinded. Husband appeals. STANDARD OF REVIEW ¶9 Proceedings under the Protection from Domestic Abuse Act are reviewed for an abuse of discretion. Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550, 554. The Court explained: Under an abuse of discretion standard, the appellate court examines the evidence in The Oklahoma Bar Journal 949 the record and reverses only if the trial court’s decision is clearly against the evidence or is contrary to a governing principle of law. To reverse under an abuse of discretion standard, an appellate court must find the trial court’s conclusions and judgment were clearly erroneous, against reason and evidence. Id. (Citations omitted.) ¶10 Husband’s appeal, in part, calls for an interpretation of Section 60.4(G)(1)(b). Statutory interpretation presents a question of law, reviewed de novo. Fulsom v. Fulsom, 2003 OK 96, ¶ 2, 81 P.3d 652, 654. ANALYSIS AND REVIEW A. Requirement for Specific Findings and Conclusions ¶11 Final protective orders “shall be on a standard form developed by the Administrative Office of the Courts.” 22 O.S. Supp. 2014, § 60.4(D). The trial court used the prescribed AOC form. The form does not set out the individual, specific findings of Section 60.4(G)(1) (b), but only makes a general reference to the Section. Husband does not dispute that the trial court used the AOC form. ¶12 Husband did not provide this Court any legal authority to demonstrate that the trial court erred by following the statute’s directive to use the AOC form. Husband also has not shown that the AOC form fails to conform to any legal requirement for such forms or the use of the form in this instance. Moreover, Husband did not request specific findings or conclusions at trial and did not object to the use of the AOC form or offer a different format. ¶13 Arguments not supported by legal authority are not considered. Okla.Sup.Ct.R. 1.11(k), 12 O.S. Supp. 2014, ch. 15, app 1. Judgments ordinarily may not be set aside on procedural grounds. 20 O.S.2011, § 3001.1. No exception to Section 3001.1 has been provided by Husband. ¶14 Last, when a trial court finding is general, it is a finding of every specific thing necessary to be found to sustain a general judgment. “[S]uch judgment will not be disturbed on appeal in the absence of legal errors, if there is any competent evidence reasonably tending to support the trial court’s conclusion.” Givens v. Western Paving Co., 1953 OK 242, ¶ 4, 261 P.2d 450, 451.7 950 ¶15 Therefore, this Court holds that there is no reversible error shown by Husband due to the procedural use by the trial court of the AOC form for the protective order, including the AOC form’s general provision regarding the finding under Section 60.4(G)(1)(b). B. Sufficiency of Evidence ¶16 Section 60.4(G)(1)(b) limits the reasons why a protective order may be made continuous. The problem of interpretation arises because Section 60.4(G)(1)(b) begins by limiting the court’s authority to a “specific finding” of “one of the following” and thereafter enumerates four circumstances. However, the statute continues, after the list of four, to say “Further” the court may consider a history of domestic violence. ¶17 Here, the first three enumerated conditions are not present. Wife’s evidence did not show that Husband had violated orders, or had been convicted of a felony or felony stalking. ¶18 Also, Wife’s evidence did not show that, previously, a final victim protective order had been issued against Husband. The nature of the previous order against Husband is not shown in this Record. Therefore, the evidence does not support a finding that the fourth enumerated circumstance applies to this case. ¶19 However, the evidence is absolutely clear that Husband has a history of domestic violence.8 “The Protection from Domestic Abuse Act serves a vital purpose, to prevent violence.” Holeman v. White, 2012 OK CIV APP 107, ¶ 15, 292 P.3d 65, 68. ¶20 “The primary goal of statutory construction is to ascertain and follow the intention of the Legislature.” TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15, 20. If a statute is unambiguous and there is no reason to apply rules of statutory construction, this Court will accord the meaning expressed by the clear language of the statute. Id. Furthermore, this Court will presume that the Legislature has not done a vain act in drafting legislation. Marquette v. Marquette, 1984 OK CIV APP 25, ¶ 8, 686 P.2d 990, 993. This Court will avoid an interpretation of a statute which would lead to an absurd result provided it does not violate the legislative intent. Id. ¶21 Therefore, this Court construes the “one of the following” phrase to include the “Further” consideration of a domestic violence history. If the Legislature had desired to limit the The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 issuance of a continuous order to the enumerated provisions it would have said “one or more of the following four enumerated” provisions. The Legislature did not do so. ¶22 Moreover, if the “Further” consideration did not constitute an additional basis for a continuous order, then it would have virtually no purpose, other than to provide an aggravating factor to one of the four enumerated circumstances. There is no need or role for an aggravating factor because the issuance of the continuous order is the ultimate sanction. ¶23 Last, the intent of the legislation is to prevent and protect from violence. The egregious circumstance of a history of domestic violence merits special attention in the form of a continuous order. There may be no doubt that the trial court had Husband’s history in mind when it made the decision to make this a continuous protective order. That decision is supported by the evidence and is affirmed. CONCLUSION AND SUMMARY ¶24 The trial court issued a continuous protective order. The trial court used a form provided by the Administrator of the Courts which made general reference to findings under 22 O.S. Supp. 2014, § 60.4(G)(1)(b). Husband has not demonstrated in this appeal how or why the use of the form is error. Moreover, Husband did not object to its use at trial or offer an alternative. ¶25 The findings required under Section 60.4(G)(1)(b) as a basis for a continuous protective order are not limited to the four enumerated findings, but also include the “history of domestic violence” finding. Inclusion of the “history of domestic violence” criterion is consistent with the overall purpose of the Act to prevent and protect from violence. Inclusion also is consistent with a reasonable reading of the language of Section 60.4(G)(1)(b). ¶26 Therefore, the judgment of the trial court entering a continuous protective order against Blaise Allyn Sanford is affirmed. ¶27 AFFIRMED. BARNES, J., and THORNBRUGH, J., concur. KEITH RAPP, PRESIDING JUDGE: 1. The parties presented the case to the trial court without a jury. 2. Section 60.4(G)(1) provides: G. 1. Any protective order issued on or after November 1, 2012, pursuant to subsection C of this section shall be: Vol. 87 — No. 13 — 5/14/2016 a. for a fixed period not to exceed a period of five (5) years unless extended, modified, vacated or rescinded upon motion by either party or if the court approves any consent agreement entered into by the plaintiff and defendant; provided, if the defendant is incarcerated, the protective order shall remain in full force and effect during the period of incarceration. The period of incarceration, in any jurisdiction, shall not be included in the calculation of the five-year time limitation, or b. continuous upon a specific finding by the court of one of the following: (1) the person has a history of violating the orders of any court or governmental entity, (2) the person has previously been convicted of a violent felony offense, (3) the person has a previous felony conviction for stalking as provided in Section 1173 of Title 21 of the Oklahoma Statutes, or (4) a court order for a final Victim Protection Order has previously been issued against the person in this state or another state. Further, the court may take into consideration whether the person has a history of domestic violence or a history of other violent acts. The protective order shall remain in effect until modified, vacated or rescinded upon motion by either party or if the court approves any consent agreement entered into by the plaintiff and defendant. If the defendant is incarcerated, the protective order shall remain in full force and effect during the period of incarceration. 3. All of the parties owned guns because they compete in shooting contests. Apparently, the family has a substantial number of guns, all of which had been impounded. The trial court did not decide ownership in this case and reserved the ownership issue for decision in the divorce case. 4. S.D. is Wife’s son and Husband’s stepson. 5. This protective order was not entered into evidence as a document or by judicial notice. 6. Tr. p. 75; Journal Entry, Record, p. 21. 7. See Marquette v. Marquette, 1984 OK CIV APP 25, 686 P.2d 990, where the Court ruled that the remedy under the Protection From Domestic Abuse Act was civil, not criminal, in nature. 8. Domestic violence is defined in the statute. 1. “Domestic abuse” means any act of physical harm, or the threat of imminent physical harm which is committed by an adult, emancipated minor, or minor child thirteen (13) years of age or older against another adult, emancipated minor or minor child who are family or household members or who are or were in a dating relationship. 22 O.S.2011, § 60.1(1). 2016 OK CIV APP 21 IN THE MATTER OF THE ADOPTION OF B.T.S., a Minor Child: TAMERA N. SMITH, Appellant, vs. TERESA NIXON and QUAHANA NIXON, Appellees. Case No. 113,714. March 7, 2016 APPEAL FROM THE DISTRICT COURT OF CHEROKEE COUNTY, OKLAHOMA HONORABLE SANDY CROSSLIN, TRIAL JUDGE AFFIRMED AS CORRECTED Maria Tasi Blakely, Hugo, Oklahoma and Charlie Rowland, ROWLAND LAW FIRM, PLLC, Antlers, Oklahoma, for Appellant Tim K. Baker, Kimberly N. Clark, TIM K. BAKER & ASSOCIATES, Tahlequah, Oklahoma, for Appellees DEBORAH B. BARNES, JUDGE: The Oklahoma Bar Journal 951 ¶1 Appellant Tamera N. Smith (Mother) appeals from an Order of the trial court determining B.T.S. eligible for adoption without her consent. Mother’s appeal raises questions of law concerning deficiencies in the notice she received from Appellees Teresa Nixon and Quahana Nixon (collectively, Adoptive Parents) regarding their application for an order determining B.T.S. eligible for adoption without her consent; the burden of proof applied by the trial court in reaching its determination of such eligibility; and the court’s lack of subject matter jurisdiction to render a decision about B.T.S.’s eligibility for adoption because another Oklahoma district court in a different county previously granted guardianship over B.T.S., a guardianship that was ongoing at the time the present proceedings were filed. We affirm the Order as corrected. BACKGROUND ¶2 B.T.S. was born on November 19, 2005, to Mother and Jerrett Shields (Father), who were unwed. Father is a member of the Chickasaw Nation and all parties agree B.T.S. is an Indian child as defined by state and federal law. Tammy Smith is Mother’s mother and B.T.S.’s maternal grandmother. On April 12, 2007, Smith and Teresa Nixon, Mother’s aunt, were appointed, with Mother’s consent, as B.T.S.’s co-guardians in McCurtain County. ¶3 B.T.S. has lived with Adoptive Parents for about eight years. On July 2, 2014, Adoptive Parents filed a petition for adoption of B.T.S. in Cherokee County, as well as an application for an order terminating Mother’s and Father’s parental rights, and an order determining B.T.S. eligible for adoption without Mother’s and Father’s consent. Adoptive Parents alleged, pursuant to 10 O.S. 2011 § 7505-4.2(B) and (H)1 that Mother and Father failed to pay child support for twelve consecutive months out of the last fourteen months preceding their petition and failed to maintain a significant relationship with B.T.S. for twelve consecutive months out of the last fourteen months preceding the filing of their petition for adoption. On that same date, Adoptive Parents also filed a “Notice of Hearing” to Mother, Father, and the Chickasaw Nation. Return of summons was filed July 14, 2014, as to Mother, and August 4, 2014, as to Father. The return of service to the Chickasaw Nation was filed of record on April 15, 2015; however, the return of service shows it was served on July 7, 2014. 952 ¶4 The trial court ordered a court-appointed attorney for Mother. On October 23, 2014, Mother filed her response to the applications denying most of the allegations in the applications. Mother alleged as a “counterclaim” that she filed a motion to have the co-guardianship dismissed because she has rectified the conditions that led to the co-guardianship. She also alleged she has maintained a relationship with B.T.S. to the best of her ability and to the extent allowed by the co-guardians, and that she has contributed and continues to contribute to the support of B.T.S. She also alleged the petition contained a material misrepresentation; that is, Quahana Nixon has never had legal custody of B.T.S., only physical custody, because Ms. Smith is the other co-guardian. Mother asked the court not to terminate her parental rights nor deem B.T.S. eligible for adoption without her consent. ¶5 The court also appointed a guardian ad litem who filed a report on September 10, 2014, and filed a supplemental report on November 17, 2014, after interviewing Mother. The GAL found, among other things, that B.T.S. was thriving in the care of Adoptive Parents. The supplemental report did not alter the GAL’s original report that it would be in B.T.S.’s best interests to determine B.T.S. eligible for adoption without Mother’s consent. According to the supplemental report, Mother told the GAL she suffered post-traumatic stress disorder, has been diagnosed as bi-polar and schizophrenic, and has had sporadic contact with B.T.S. during the guardianship period and had last seen B.T.S. in June of 2014. The GAL also reported Mother said she is engaged to a James Voss who has been employed for twelve years. The report states Mother and Voss live on his salary, her disability payments of $721 per month, and food stamps. ¶6 A hearing was held on November 17, 2014, on the application to determine B.T.S. eligible for adoption without Mother’s and Father’s consent. Mother asserted a jurisdictional issue was presented because the guardianship was in place in a different county. Mother argued Ms. Smith, the co-guardian, was a necessary party in these proceedings though she referred to no statutory or decisional law for the argument. Mother also admitted the guardianship court was aware of the present proceedings and was waiting to rule on her petition to vacate the guardianship pending the outcome of these proceedings. The The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 court found the co-guardian was not a necessary party in an adoption matter and overruled Mother’s objection. ¶7 During the hearing, Father admitted he had not maintained a relationship with B.T.S. during the relevant period nor had he paid child support in seven years. Father testified he believed adoption was in B.T.S.’s best interests. The court also heard the testimony of Mother and Voss. Mother maintained she had given money and purchased clothes and school supplies for B.T.S. during the relevant period, but that these sums were given to her mother to give to B.T.S. and Adoptive Parents. Mother, however, failed to produce any records except for one $100 check given during the relevant period although she claimed to have the records documenting other payments. Mother and Voss also claimed Mother maintained a relationship with B.T.S. during the two-week period each summer that Ms. Smith had physical custody of B.T.S. though Mother was also unable to produce more than a few pictures that she testified showed B.T.S. at a swimming pool in June 2014, three pictures of an Easter 2014 visit, and three pictures of a September 2013 get together. The court also heard the testimony of Adoptive Parents who disputed Mother paid child support or otherwise provided gifts or clothing to B.T.S. during the relevant period and disputed Mother maintained any meaningful relationship with B.T.S. ¶8 At the conclusion of the hearing, the trial court announced Adoptive Parents had met their burden as to Father and determined B.T.S. eligible for adoption without Father’s consent. As to Mother, the trial court noted “conflicting evidence” was presented, but that it was presented with no evidence “that would rebut the proof provided by” Adoptive Parents who by clear and convincing evidence met their burden of proof. ¶9 The court filed its Order on March 27, 2015, in which the court found notice had been provided pursuant to the provisions “of 10 O.S. § 29.1 and 10 O.S. § 7505-4.1 et seq.” and that it had jurisdiction pursuant to 10 O.S. 2011 § 7502-1.1. The court further found Adoptive Parents had had “physical custody” of B.T.S. since April 12, 2007, by way of the guardianship order in McCurtain County. The court found by clear and convincing evidence that Mother’s and Father’s consent to the adoption of B.T.S. was not required because they failed to provide support for B.T.S or to maintain a Vol. 87 — No. 13 — 5/14/2016 meaningful parental relationship with B.T.S. during the relevant period and ordered B.T.S. eligible for adoption without their consent. ¶10 Mother filed this appeal.2 STANDARD OF REVIEW ¶11 Questions of law are reviewed under a de novo standard of review, without deference to the trial court’s conclusion. In re A.N.O., 2004 OK 33, ¶ 3, 91 P.3d 646; Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081. Statutory interpretation presents a question of law. State v. Tate, 2012 OK 31, ¶ 7, 276 P.3d 1017. “When making a determination of a child’s eligibility for adoption without consent, an appellate court will review issues of fact under a clear and convincing standard.” In re Adoption of G.D.J., 2011 OK 77, ¶ 17, 261 P.3d 1159 (citation omitted). Additionally, “[t]he burden is on the party seeking to adopt without consent to prove such adoption is warranted by clear and convincing evidence. ‘Accordingly, the decision of the trial court will not be disturbed unless it fails to rest on clear and convincing evidence.’” Id. (citation omitted). ANALYSIS I. Noncompliance with Oklahoma Indian Child Welfare Act ¶12 Father is a member of the Chickasaw Nation. Mother is non-Indian. However, it is uncontested that B.T.S. is an Indian child and that the provisions of the Federal Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2012) (ICWA), and the Oklahoma Indian Child Welfare Act, 10 O.S. 2011 §§ 40-40.9 (OICWA) apply in this case. Pursuant to OICWA § 40.3(A), except in circumstances not herein relevant, “[OICWA], in accordance with [ICWA], applies to all child custody proceedings involving any Indian child ….” Mother argues Adoptive Parents’ failure to comply with certain notice provisions of OICWA deprived the trial court of jurisdiction to determine B.T.S. eligible for adoption without Mother’s consent. ¶13 Mother argues Adoptive Parents never notified the United States Bureau of Indian Affairs of their applications to determine B.T.S. eligible for adoption and termination of Mother’s parental rights, as required by 10 O.S. 2011 § 40.4.3 Further, Mother argues the required “notice” is something other than the “petitions” and that notice requires particular information including “[t]he child’s tribal affiliation[,] . . . [a] The Oklahoma Bar Journal 953 statement that the appropriate tribe, as well as the biological parents or ‘Indian custodians’ have the right to intervene in the proceedings,” and a “statement that any biological parent, the tribe, or the Indian custodians have the right to transfer the proceeding to the tribal court of the Indian child.”4 Mother claims that, on its face, the “Notice of Hearing” sent to her was fatally defective because, among other errors, it did not notify her that the Chickasaw Nation had a right to intervene, and she was not notified she had a right to have the proceedings transferred to the Chickasaw Nation tribal court.5 Mother asserts lack of proper notice deprives the trial court of subject matter jurisdiction and is an issue properly raised for the first time on appeal, citing Halliburton v. Grothaus, 1998 OK 110, ¶ 10, 981 P.2d 1244. ¶14 Adoptive Parents do not contest Mother’s factual allegations and the record on appeal reveals no notice was sent to the BIA nor did Mother’s Notice of Hearing inform her that the Chickasaw Nation could intervene or that she could seek transfer of the proceedings to the Chickasaw Nation tribal courts. The service of process, however, states Mother was served with the petition for adoption in which B.T.S.’s tribal affiliation was asserted to be the Chickasaw Nation. The Notice of Hearing sent to the Chickasaw Nation does contain the information required by § 40.4, including the language pertinent to the biological parent. That notice was filed of record on July 2, 2014, the same day Mother’s Notice of Hearing was filed. Mother has been represented by counsel throughout these proceedings. ¶15 In Halliburton, the Oklahoma Supreme Court stated the well-recognized rule that, A district court judgment or order is facially void if, on an inspection of the judgment roll, it is apparent that one or more of the requisite jurisdictional elements — that of the subject matter, in personam cognizance, or the court’s power to render a particular decision — is shown to have been absent. Whenever absence of cognizance appears on the face of the judgment roll, the judicial act is void and subject to attack at any time. Id. ¶ 10 (footnotes omitted). Mother, however, offers no other decisional authority for her position that the Order must be reversed because the trial court had “no subject matter jurisdiction.” Nevertheless, because fundamental parental interests are at stake in this 954 matter, we have undertaken our own review of persuasive authority pertinent to the claims raised by Mother.6 ¶16 Mother bases her argument for reversal on Adoptive Parents’ failure to follow the notice requirements of OICWA, not ICWA. In addressing her arguments, however, we find instructive decisional law discussing the effect of inadequate notice in cases involving ICWA notice requirements as well as state notice requirements. ¶17 In In re Adoption of Baby Girl B, 2003 OK CIV APP 24, 67 P.3d 359, another Division of this Court addressed, among other issues, the effect of inadequate notice to both the father of the child and the tribal nation pursuant to both § 1912 and § 40.4. The Court noted the language in § 1914 authorizing “any parent from whose custody such child was removed” to petition the court to vacate its decision upon a showing of a violation of § 1912, among other sections, and noted that the challenge before it was to the notice given to the father and to the nation. Father never had custody of the child, but he also had had no notice of the child’s birth or that he was the child’s father; once he was so notified, he took steps to establish paternity and provide support. The Court determined ICWA and OICWA applied and father was a parent for purposes of those acts. The Court went on to determine the adequacy of the notice provided to father and the nation, and the effect of any inadequacies in the notice provided on the trial court’s ruling. ¶18 In Baby Girl B, the father and the nation argued the notice served upon father did not comply with the provisions of § 40.4 because the notice lacked the child’s tribal identification, a statement of rights, and advice regarding his right to counsel. Although father did receive notice of the hearing on termination of his parental rights — a hearing he ultimately missed because he was lost and arrived after the hearing had already concluded — the Court found the notice elements missing here clearly go to more than the notice of time and date of a hearing. Obviously, Father was not represented by chosen or appointed counsel at a critical stage of these proceedings. No evidence exists showing he had waived a right to counsel. In fact, he testified that he believed he was represented by Nation’s counsel, but that was not the case at that time. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 Id. ¶ 45 (emphasis added). Further, the Court concluded: “Adoptive Parents . . . were under an obligation to furnish adequate notice and wholly failed to do so. They have not shown any excuse for the failure to give adequate and correct notice, nor any basis to excuse the failure such as lack of prejudice.” Id. ¶ 46 (emphasis added). ¶19 Under the facts presented, the Baby Girl B Court found the inadequate notice as to father required reversal of the termination order, but also found that while notice to the nation was defective, “the trial court’s decision not to invalidate on this ground is not clearly error because of the absence of prejudice to Nation.” Id. ¶ 54 (emphasis added). ¶20 Other jurisdictions have also considered the effect of an absence of prejudice or lack of harmful error in circumstances where notice has been deficient as to a parent or a tribe pursuant to the notice requirements of ICWA and state law requirements. For example, the Alaska Supreme Court discussed the effect of defective notice to an Indian parent in a termination of parental rights case though the issue had been raised for the first time on appeal. In In re L.A.M., 727 P.2d 1057 (Alaska 1986), the Alaska Supreme Court addressed the mother’s assertion that the mere publication of notice of the parental rights termination proceeding failed to comply with the notice requirements of the ICWA § 1912(a), and Alaska’s Indian child welfare provisions. The court explained: Unless it constitutes plain error, we ordinarily will not consider a claim of error if it was not both argued in the trial court and properly raised on appeal. In order for this court to find plain error, the error must affect substantive rights and be obviously prejudicial. . . . “[P]lain error exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted.” In re L.A.M., 727 P.2d at 1059 (citations omitted). ¶21 The Alaska Supreme Court found the case before it to be such a case. The court reasoned: The due process right to proper notice in a parental rights termination proceeding is so fundamental that justice requires us to consider [mother’s] claim of defective notice. Furthermore, the ICWA specifically Vol. 87 — No. 13 — 5/14/2016 authorizes a parent to “petition any court of competent jurisdiction to invalidate [a termination of parental rights] upon a showing that such action violated” certain ICWA provisions, including the act’s notice requirements. 25 U.S.C. § 1914. The guardian ad litem relies on this provision to argue that [mother] has a right under federal law to be heard on the defective notice issue even though it was not raised below. In re L.A.M., 727 P.2d at 1059 (footnote omitted). Although the Alaska court noted there was little case law interpreting § 1914, the court found the guardian ad litem’s interpretation to be consistent with the broad purposes of ICWA in promoting stability among Indian tribes and families and with the section’s legislative history. Thus, the Alaska court concluded, because the state failed to satisfy ICWA’s requirement of notice by registered mail, the order terminating the mother’s parental rights required reversal “unless the procedural violation was harmless because the mother had actual notice of the termination hearing.” Id. at 1061 (emphasis added). The court found on the record before it that mother had no actual notice; therefore, the court reversed the order of termination. ¶22 Though not addressing state law notice requirements, other courts have similarly addressed ICWA’s notice requirements with reference to the parents or tribe’s actual notice and participation in the proceedings. For example, in In re H.A.M., 961 P.2d 716 (Kan. App. 1998), the appellate court held the trial court’s failure to give notice to the Chickasaw Nation regarding a termination of parental rights proceeding and to foster care placement proceedings commenced prior to the termination proceedings did not require reversal of the case where the tribe ultimately became involved in the proceedings. In response to the parents’ argument on appeal that the failed notice requirements required reversal of the termination order, the In re H.A.M. court held: Considering the Chickasaw Nation’s involvement in this case, albeit belated, there was substantial compliance with the ICWA purpose of involving the tribe in the child care proceedings. Of great importance is the apparent belief by the Chickasaw Nation that the trial court remedied the initial failure to give notice with its subsequent actions. The Oklahoma Bar Journal 955 Id. at 720. See also In re J.J.G., 83 P.3d 1264 (Kan. App. 2004), disapproved on other grounds in In re B.D-Y., 187 P.3d 594, 606 (Kan. 2008) (Appellate court found the tribe’s actual participation in all custody proceedings regarding the child, including scheduling for the termination proceedings, rendered father’s notice argument unpersuasive.). ¶23 In none of these decisions were inadequacies in the notice requirements of § 1912 or § 40.4 determined to be jurisdictional deficiencies as argued by Mother, but rather procedural deficiencies which could be raised for the first time on appeal; however, we review errors in notice deficiencies for prejudice. “Absent a showing of prejudice, any error is harmless and an insufficient basis for reversal.” E&F Cox Family Trust v. City of Tulsa, 2013 OK CIV APP 45, ¶ 34, 302 P.3d 1168 (citations omitted). As to alleged errors, not inherently prejudicial, the test of prejudice is: “The likelihood that the verdict would have been different had they not occurred as measured by the usual criterion of the verdict’s support in the evidence.” Karriman v. Orthopedic Clinic, 1973 OK 141, ¶ 21, 516 P.2d 534, 540. Error does not require reversal unless examination of the entire record discloses that miscarriage of justice probably has resulted, or that there was a violation of statutory or constitutional rights. Falletti v. Brown, 1971 OK 18, ¶ 8, 481 P.2d 744, 746. Malloy v. Caldwell, 2011 OK CIV APP 26, ¶ 18, 251 P.3d 183. ¶24 The record indicates Mother had notice of her rights to intervene and to seek removal of the proceeding to the Chickasaw Nation tribal courts. She did not receive this notice from Adoptive Parents as required under § 40.4, but the notice of hearing sent to the Chickasaw Nation is in the record and was filed the same day Mother’s defective notice was filed. Unlike the father in Baby Girl B, Mother was represented by counsel at all critical stages of this proceeding and Mother has fully participated in these proceedings. The contents of the record were plainly available to her. Mother has thus failed to explain how she was prejudiced by the defective notice. ¶25 Further, as argued by Adoptive Parents, Mother has failed to demonstrate how the outcome of the proceeding would have been different had she received proper notice from them, although she poses rhetorical questions 956 about whether she would have asked the Chickasaw Nation to intervene or whether she would have sought transfer to its tribal courts. Although the July 17, 2014 return receipt of service from the Chickasaw Nation was belatedly entered of record, Mother does not dispute that the Chickasaw Nation had proper notice prior to the originally scheduled September 11, 2014 hearing. That hearing was then continued to November 17, 2014. The Chickasaw Nation declined to intervene in the matter or seek transfer of the proceedings to its tribal courts.7 Thus, Mother offers nothing to demonstrate that removal could or would have occurred even if she sought it. ¶26 Moreover, as previously noted, Mother was represented by court-appointed counsel. On July 2, 2014, Adoptive Parents filed their petition for adoption and their applications for an order determining B.T.S. eligible for adoption without the consent of his natural parents and order terminating the parental rights of the natural parents. According to the trial court’s docket, on July 14, 2014, affidavit of service was filed showing Mother had been served, and, according to the trial court’s docket, Mother was appointed legal counsel on August 4. Also according to the docket, on September 22, a motion was made to continue the hearing and the court entered its order and notice of hearing on November 17, 2014. On October 23, 2014, Mother, through her legal counsel, filed her response to Adoptive Parents’ petition and applications, and was represented by counsel at the November 11 hearing on Adoptive Parents’ application to determine B.T.S. eligible for adoption without Mother’s consent. Thus, our review of the record fails to disclose any prejudice or miscarriage of justice to Mother. ¶27 We also agree with Adoptive Parents that their failure to notify the BIA as required by § 40.4 was likewise without prejudice to Mother. It is unquestioned B.T.S. is an Indian child and member of the Chickasaw Nation. See 10 O.S. 2011 § 40.3(D)(E). No question is thus presented here about B.T.S.’s status that would require some determination by the BIA. No other tribal affiliation for B.T.S. has been asserted that would require some action in these proceedings by the BIA. Moreover, the § 40.4 notice to the BIA only states the parents, Indian custodian, and tribe have a right to intervene, not that the BIA has a right to intervene in voluntary or involuntary child custody proceedings. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 ¶28 We do not condone Adoptive Parents’ failure to follow the notice requirements of OICWA particularly because that failure calls into question the rights of parents and Indian tribes and protracts the proceedings involving their rights and the custody and placement of children. It is in the interests of all to get it right the first time. However, where, as here, the record does not demonstrate the deficiencies resulted in prejudice to Mother, we will not reverse the trial court’s judgment. II. Required Burden of Proof ¶29 Mother does not argue the trial court erred in finding by clear and convincing evidence that B.T.S. is eligible for adoption without her consent. Instead, she argues the trial court applied the wrong standard of proof for the evidentiary requirements of ICWA and OICWA, in particular ICWA § 1912(f) which provides: Parental rights termination orders; evidence; determination of damage to child No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. Thus, Mother argues the heightened burden of proof beyond a reasonable doubt should have been applied. Moreover, Mother argues no “qualified expert witness” testified and “[n] owhere in the transcript is B.T.S.’s emotional and/or physical well-being discussed in the manner envisioned by § 1912(f).” We disagree with Mother’s arguments. ¶30 As argued by Adoptive Parents, the present case does not involve a circumstance in which the child was in the custody of the parent. B.T.S. has not been in Mother’s custody for eight years. Moreover, the present appeal concerns B.T.S.’s eligibility for adoption without Mother’s consent, not termination of her parental rights. Section 1912(f) does not apply; thus, the heightened standard it requires does not apply.8 “When making a determination of a child’s eligibility for adoption without consent, an appellate court will review issues of fact under a clear and convincing standard.” In re Adoption of G.D.J., 2011 OK 77, ¶ 17, 261 P.3d Vol. 87 — No. 13 — 5/14/2016 1159 (citation omitted). In G.D.J., the Oklahoma Supreme Court explained: [O]nly in a termination case of a putative father’s parental rights, can a trial court simultaneously find consent is unnecessary, and terminate such rights. This is distinguished from a determination that a child is eligible for adoption without consent, which does not terminate parental rights. Section 1912 of the ICWA requires the use of a “beyond a reasonable doubt” standard of proof, for certain purposes, in a proceeding to terminate parental rights. As discussed above, our statutes prohibit a trial court from taking any action that results in a termination of the parent-child relationship in a proceeding to determine a minor child eligible for adoption without the consent of a natural parent. Therefore, a “clear and convincing” standard of proof is all that is necessary in such a proceeding. The higher standard of proof is relevant to the specific determination, the continued custody of the child by the parent or Indian custodian, is likely to result in serious emotional or physical damage to the child. The hearing on the petition for adoption, which has not occurred in the present case, will be a proceeding which may result in the termination of a parent-child relationship, and is the only proceeding in which the court may grant a final decree of adoption. At the hearing on the petition for adoption, evidence relevant to matters included in subsection (f) of Section 1912 must be proven “beyond a reasonable doubt” in order to support a determination that parental rights should be terminated, including the testimony of an expert witness. In re G.D.J., ¶¶ 35-36. See also In re J.S., 2008 OK CIV APP 15, ¶ 4, 177 P.3d 590 (heightened beyond a reasonable doubt standard of proof absent from the language of § 1912(d) and applies only to factual determination required by 1912(f) to be made in ICWA termination cases; lesser standard of clear and convincing evidence applicable to all other state law requirements for termination). ¶31 Similarly, because § 1912(f) does not apply under the facts of this case, expert testimony that the continued custody of B.T.S. by Mother is likely to result in serious emotional or physical damage to B.T.S. was not required.9 The Oklahoma Bar Journal 957 ¶32 We therefore conclude the trial court did not err in applying a clear and convincing standard of proof. in dealing with similar intra-state problems,” and cites, by way of example, to 43 O.S. 2011 § 103(D).11 III. Applicability of Oklahoma’s Uniform Child Custody Jurisdiction and Enforcement Act ¶35 Mother concedes the purpose of UCCJEA “is to avoid jurisdictional conflict between courts of different states,” citing Barnett v. Klein, 1988 OK 132, ¶ 12, 765 P.2d 777 (discussing predecessor Uniform Child Custody Jurisdiction Act (UCCJA), 43 O.S. §§ 501-527, repealed effective November 1, 1998) (emphasis added)).12 See also Wood v. Redwine, 2001 OK CIV APP 115, ¶ 14, 33 P.3d 53 (“The jurisdictional provisions of [UCCJA] and, by implication, the successor provisions of [UCCJEA] seek to assure that litigation regarding custody of a child take place in the state with which the child and his family have the closest connection and where significant evidence concerning care and protection is readily available in order to provide a continuing stable environment for children.”) (emphasis omitted) (citation omitted); and 43 O.S. 2011 § 551-401 (“In applying and construing [UCCJEA], consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.”). Nonetheless, Mother contends UCCJEA should be interpreted to have an intrastate purpose. ¶33 Mother argues the trial court was without subject matter jurisdiction to determine whether B.T.S. was eligible for adoption without her consent because at the time the application was made, guardianship over B.T.S. had been granted in 2007 in another county and was continuing. She argues the trial court erred in overruling her “position that the proper jurisdiction for the adoption would be in” the county where the guardianship was granted. Mother’s argument is based on what she contends is the proper interpretation of Oklahoma’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 43 O.S. 2011 §§ 551-101 through 551-402 as it relates to 10 O.S. 2011 § 7502-1.1. Section 7502-1.1 provides: Jurisdiction over proceedings to terminate parental rights and proceedings for the adoption of a minor commenced pursuant to the Oklahoma Adoption Code shall be governed by the Uniform Child Custody Jurisdiction and Enforcement Act as provided in Sections 551-101 through 551-402 of Title 43 of the Oklahoma Statutes. Pursuant to UCCJEA § 551-202,10 Mother argues, the court with exclusive jurisdiction over the custody of B.T.S. is the guardianship court. ¶34 Mother does not argue there is ambiguity in some provision of UCCJEA or § 7502-1.1; rather, she argues the plain language of § 75021.1 requires the conclusion that the jurisdiction requirements of UCCJEA apply to proceedings for the termination of parental rights and adoption of a minor child filed under the Oklahoma Adoption Act, and that it would be nonsensical to interpret UCCJEA in such cases to apply only to interstate adoption jurisdiction disputes. Because, she argues, UCCJEA vests the court in the guardianship proceeding with exclusive jurisdiction and UCCJEA applies to termination of parental rights and adoption proceedings, Mother argues this Court must interpret UCCJEA such that wherever the word “state” appears, the word “county” must be inserted. She contends, “Even though [UCCJEA] was meant to deal with interstate issues, many states, including Oklahoma, have decided that its guidelines would also be effective 958 ¶36 Mother’s policy argument may not be wholly without merit. She argues the effective administration of justice and use of court resources, the use of litigant resources, and the best interests of a child might be served in adoption proceedings by rewriting UCCJEA such that wherever the word state appears, county should be inserted.13 However, those and any other policy considerations and any revision of UCCJEA that might ensue are considerations and actions properly exercised by the Legislature and not this Court. ¶37 In Oklahoma, the judiciary lacks the power to rewrite a statute merely because the legislation does not comport with our or with an appealing party’s concept of prudent public policy. The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 Okla. Const. Art. 4, § 1. The Oklahoma Supreme Court has stated: “In absence of a constitutional defect, we are duty bound to give effect to legislative acts, not to amend, repeal, or circumvent them. We will not exercise authority not vested in this Court by rewriting statutes merely because the legislation does not comport with our concept of prudent public policy.” Coates v. Fallin, 2013 OK 108, ¶ 2, 316 P.3d 924 (citations omitted). The Supreme Court has further stated: “[T]he wisdom of choices made within the Legislature’s law-making sphere are not our concern, because those choices — absent constitutional or other recognized infirmity — rightly lie within the legislative domain.” Duncan v. Okla. Dep’t of Corr., 2004 OK 58, ¶ 5, 95 P.3d 1076 (citation omitted). ¶38 Adoptions are not subject to UCCJEA § 551-103 and we agree with Mother that § 75021.1 specifically states adoption proceedings commenced pursuant to The Oklahoma Adoption Code are.14 But, nothing in § 7502-1.1 states that UCCJEA, in such proceedings, applies to intrastate adoption proceedings. Clearly, as Mother herself points out, the Legislature is fully aware of the provisions of UCCJEA it has determined that courts should consider for venue matters in intrastate divorce actions. See, e.g., 43 O.S. 2011 § 103(D). It did not include similar language in § 7502-1.1 and nothing stated in that statute evinces a legislative intent to expand UCCJEA to purely intrastate adoption proceedings. ¶39 Consequently, we decline to usurp the Legislature’s power to rewrite statutes and we find no legislative intent on the face of § 75021.1 or the provisions of UCCJEA to conclude the Legislature intended UCCJEA to apply to intrastate adoption proceedings. Therefore, we conclude the trial court was not without jurisdiction to determine B.T.S. eligible for adoption without Mother’s consent and did not err in entering its Order. IV. Correction of Order ¶40 Although she has failed to assert the issue in her appellate brief, in her application to the Supreme Court to convert her petition to assume original jurisdiction to a direct appeal, Mother asserts the Order is “fatally defective” on its face because it fails to “address the requirements of [ICWA and OICWA] in its findings of fact and conclusions of law.” Mother had been directed by the Supreme Court to file a petition in error, and while she did so, she Vol. 87 — No. 13 — 5/14/2016 did not attach to it a statement of the issues to be raised on appeal. Her original petition in error did contain such a statement, but that statement did not include an issue about a “fatal defect” in the Order. Mother did not reference any authority for her assertion that the absence of any reference to ICWA and OICWA in the Order renders it fatally defective. Because no one contests B.T.S.’s status as an Indian child, the trial court’s failure to make a finding of his status in the Order and, thus, that the provisions of ICWA and OICWA apply to these proceedings, while an error, is correctable. Thus, we modify and correct the Order to include the following: “B.T.S. is a member of the Chickasaw Nation and as such the provisions of the Federal Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2012), and the Oklahoma Indian Child Welfare Act, 10 O.S. 2011 §§ 40-40.9, apply in this case.” V. Request for Appeal-related Attorney Fees ¶41 Mother has requested in her appellate brief appeal-related attorney fees and costs. Her request does not comply with the requirements of Oklahoma Supreme Court Rule 1.14, 12 O.S. Supp. 2013, ch. 15, app. 1, and is denied. CONCLUSION ¶42 Based on the applicable law and facts, we conclude the trial court properly exercised jurisdiction over this adoption proceeding, and although Adoptive Parents did not fully comply with the notice provisions of OICWA, Mother — who raised these notice deficiencies for the first time on appeal — had notice of her rights, fully participated in the proceedings, and was represented by counsel at all critical stages of the proceedings. We therefore conclude the error was harmless and the trial court properly determined the issue of whether B.T.S. was eligible for adoption without the consent of Mother. We further conclude the trial court applied the correct clear and convincing evidentiary standard in reaching the determination that B.T.S. was eligible for adoption without Mother’s consent. Further, we decline Mother’s request that we exercise the Legislature’s power to rewrite statutes and we find no legislative intent on the face of § 75021.1 or the provisions of UCCJEA to conclude the Legislature intended UCCJEA to apply to intrastate adoption proceedings. We further conclude, however, because B.T.S. is an Indian child and the trial court properly applied the applicable provisions of ICWA and OICWA, the The Oklahoma Bar Journal 959 Order should be corrected to identify B.T.S. as a member of the Chickasaw Nation and to state that the provisions of ICWA and OICWA apply to this case. Finally, we deny Mother’s request for appeal-related attorney fees and costs. Accordingly, we affirm the Order as corrected. ¶43 AFFIRMED AS CORRECTED. THORNBRUGH, P.J., and RAPP, J., concur. DEBORAH B. BARNES, JUDGE: 1. Section 7505-4.2 provides, in part, as follows: B. Consent to adoption is not required from a parent who, for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of a child . . . has willfully failed, refused, or neglected to contribute to the support of such minor: .... 2. According to such parent’s financial ability to contribute to such minor’s support if no provision for support is provided in an order. . . . .... H. 1. Consent to adoption is not required from a parent who fails to establish and/or maintain a substantial and positive relationship with a minor for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child. 2. Father has not appealed. Mother filed an Application to Assume Original Jurisdiction, Application for Stay, Petition for Writ of Prohibition, and Petition for Writ of Mandamus with the Oklahoma Supreme Court and a brief in support. A hearing had been scheduled, but at Mother’s request, the hearing was stricken and Mother was ordered to inform the Supreme Court whether she intended to pursue the appeal or be dismissed. Mother then filed a petition to convert the case to a direct appeal pursuant to Oklahoma Supreme Court Rule 1.23(d). The Supreme Court granted her application to convert in part by allowing the cause to be recast as an appeal from a final order pursuant to Rules 1.23(d), 1.10(c)(3) and 1.34(e), but denied Mother’s request to excuse her from filing a petition in error and designation of record. She was also directed to seek in the district court her request for waiver of district court fees. 3. That section provides as follows: In all Indian child custody proceedings of [OICWA], including voluntary court proceedings and review hearings, the court shall ensure that the . . . person initiating the proceeding shall send notice to the parents or to the Indian custodians, if any, and to the tribe that is or may be the tribe of the Indian child, and to the appropriate Bureau of Indian Affairs area office, by certified mail return receipt requested. The notice shall be written in clear and understandable language and include the following information: 1. The name and tribal affiliation of the Indian child; 2. A copy of the petition by which the proceeding was initiated; 3. A statement of the rights of the biological parents or Indian custodians, and the Indian tribe: a. to intervene in the proceeding, b. to petition the court to transfer the proceeding to the tribal court of the Indian child, and c. to request an additional twenty (20) days from receipt of notice to prepare for the proceeding; further extensions of time may be granted with court approval; 4. A statement of the potential legal consequences of an adjudication on the future custodial rights of the parents or Indian custodians; 5. A statement that if the parents or Indian custodians are unable to afford counsel, counsel will be appointed to represent them; and 6. A statement that tribal officials should keep confidential the information contained in the notice. (Emphasis added.) 4. Br-in-chief at 5. 5. Although Mother asserts the OICWA notice requirements were not followed, she also references the ICWA notice requirement found in § 1912, which provides, in part, as follows: (a) Notice; time for commencement of proceedings; additional time for preparation 960 In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the . . . termination of parental rights to an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary[.] (Emphasis added.) 6. While we have found no Oklahoma Supreme Court cases addressing the precise issue here raised concerning § 1912 and OICWA § 40.4, in Cherokee Nation v. Nomura, 2007 OK 40, 160 P.3d 967, the Oklahoma Supreme Court discussed the required § 40.4 notice to Indian tribes regardless of whether the child custody proceedings are voluntary or involuntary. Having determined notice had not been given to the tribe, the Supreme Court observed: “Under the circumstances of this case, no attempt whatsoever was made to involve the Tribe in the placement of the child. Agency’s allegations that the Tribe was given notice and intervened in Florida are hollow attempts to justify the actions taken after the judgment was entered.” Id. ¶ 29 (emphasis added). While we do not construe this statement as a holding by the Supreme Court that defective notice under § 40.4 can be cured by actual involvement or notice prior to entry of judgment, the Court’s statement indicates it has not precluded that conclusion. This conclusion finds further support from the Supreme Court’s reasoning in In re Adoption of R.R.R., 1988 OK 109, 763 P.2d 94. There a grandmother sought to adopt the minor child because the child was living with her and the parents had not supported the child in over a year. The mother could not be located and was served by publication, but the father had actual notice and filed a motion for summary judgment on grounds not here pertinent, which the trial court granted. The Supreme Court reversed the grant of summary judgment and remanded the case for new trial. The child was a member of the Kiowa Tribe and the tribe, along with the BIA, had been notified of the adoption proceeding. The tribe filed a motion to intervene; however, the record revealed it did not have notice of the summary judgment hearing. In determining that the tribe on remand for a new trial was not precluded from seeking transfer to its tribal courts, the Oklahoma Supreme Court reasoned: In compliance with [OICWA] § 40.4, the Kiowa Tribal Office and the area office of the Bureau of Indian Affairs were notified. The Kiowa Tribe filed a motion to intervene, but it did not request removal to a tribal court nor did it participate in any subsequent proceedings. (Neither the Tribe nor the Bureau of Indian Affairs were given notice of the November 1, 1985 hearing. This would invalidate those proceedings in so far as the Tribe’s interest is concerned.) 1988 OK 109, ¶ 17 (footnotes omitted). The Supreme Court specifically noted the trial court’s minute stated the Kiowa Tribe was not present for the hearing and had received no notice of the hearing. In the present case, Mother had notice — albeit not in full conformity with OICWA § 40.4 — of the pre-adjudicatory proceedings, was represented by counsel, fully participated in the hearing, and had access to the filings in the record. In fact, the circumstances here — where the issue is for the first time presented on appeal — are not unlike those addressed by the Supreme Court in In re N.L., 1988 OK 39, 754 P.2d 863, where a mother challenged the sufficiency of the notice under OICWA of a pre-adjudication order because the emergency custody order did not contain the requisite affidavits required by § 40.5. Because the mother had not raised those issues at the trial level, the Supreme Court said it could not review those issues on appeal. In re N.L., ¶ 8. The Supreme Court reasoned: No motion or argument appears in the trial court record questioning the statutory sufficiency of the amended petition. Similarly, no motion or argument was addressed to the trial court attacking the temporary custody orders for lack of a hearing pursuant to 10 O.S. Supp. 1984 § 1104.1. No reference to 25 U.S.C. § 1922 appears in the trial court record before us. A party may not assign errors on appeal which were not presented to the trial court. The misapplication of 10 O.S. Supp. 1984 § 1104.1, 10 O.S. Supp. 1982 § 40.5, 25 U.S.C. § 1922 does not defeat the jurisdiction of the trial court. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 In re N.L., ¶¶ 9-11 (citations omitted) (footnote omitted). As to the jurisdictional issue, the Court stated: The trial court’s jurisdiction includes the jurisdiction over the parties, jurisdiction over the subject matter, and jurisdictional power to pronounce the particular judgment rendered. Jurisdiction over the subject matter occurs upon the filing of the petition. 10 O.S. 1981 § 1102. The mother appeared with counsel in the proceedings. The trial court has jurisdictional power to specify the appropriate conduct for a parent. 10 O.S. Supp. 1982 § 1116. In re N.L., ¶ 11 n.2 (citation omitted). The Court concluded: The mother’s allegations of error that the trial court failed to follow 25 U.S.C. § 1922, 10 O.S. Supp. 1982 § 40.5, and 10 O.S. Supp. 1984 § 1104.1, do not come within exceptions to the general rule that allegations of error must be presented to the trial court. Therefore, they are beyond the scope of our review on appeal. In re N.L., ¶ 13. 7. Adoptive Parents assert in their appellate brief that on July 28, 2014, the Chickasaw Nation responded “via letter, confirming [Father’s] Certificate of Degree of Indian Blood (CDIB), and indicating it was the practice of the Chickasaw Nation not to intervene in family matters, such as family adoption. To date, the Chickasaw Nation has never sought to intervene in this matter.” The referenced letter is not part of the record and, thus, no evidence has been presented about what the Chickasaw Nation’s “practice” is or is not in family adoptions. However, the record on appeal confirms Adoptive Parents’ assertion that the Chickasaw Nation has not intervened in this matter. 8. See e.g., In re Adoption Couple v. Baby Girl, 133 S. Ct. 2552 (2013), wherein the Supreme Court of the United States observed: Section 1912(f) addresses the involuntary termination of parental rights with respect to an Indian child. Specifically, § 1912(f) provides that “[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, . . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Id. at 2560. 9. Mother does not argue on appeal that clear and convincing evidence failed to support the trial court’s determination; however, our review of the record and the transcript reveals the Order is supported by clear and convincing evidence. “Clear and convincing evidence” is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re C.G., 1981 OK 131, ¶ 17 n.12, 637 P.2d 66 (citations omitted). We further note, as stated by the Oklahoma Supreme Court in White v. Adoption of Baby Boy D, 2000 OK 44, 10 P.3d 212: “Although the veracity of the parties’ testimony before the trial judge was called into question and conflicting testimony abounded, we are confident in the advantage given the trial judge to determine witnesses’ credibility.” Id. ¶ 36 (citation omitted). The Supreme Court further explained: “The trial judge, by being confronted with the parties and the witnesses, was in a much better position to assess the credibility of those witnesses than is this Court from ‘the dry, printed words in the record.’” Id. (citation omitted). 10. Section 551-202 provides: A. Except as otherwise provided in [§ 551-204 temporary emergency custody] of this act, a court of this state which has made a child custody determination consistent with [§ 551-201initial child custody jurisdiction] or [§ 551-203 jurisdiction to modify determination] of this act has exclusive, continuing jurisdiction over the determination until: 1. A court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or 2. A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state. 11. Section 103, entitled “Venue for any action for divorce, annulment of a marriage, or legal separation,” provides, in part, as follows: D. The court shall grant a party’s application for change of venue when the court determines that it is an inconvenient forum under the circumstances and the court in another county is a more appropriate forum consistent with the factors in subsection B of Section 551-207 of the Uniform Child Custody Jurisdiction and Enforcement Act after substitution of the word “county” for the word “state” in such section of the act, and transfer is requested to the county where the applying party resides in the state. (Emphasis added.) 12. The Barnett Court further stated, “Language involving intrastate jurisdictional and venue disputes is conspicuously absent [from Vol. 87 — No. 13 — 5/14/2016 the statute]. The legislature having not seen fit to make the Act apply in purely intrastate controversies, we acknowledge that it does not apply in this case.” Id. 13. We note, however, in the present case, Mother concedes the guardianship court was aware of this proceeding and determined to wait to rule on Mother’s petition to vacate the guardianship pending the decision in this proceeding. Thus, judicial economy has been served in this case. 14. In fact, § 7502-1.1 is consistent with the Official Comment to § 551-103, which states: Two proceedings are governed by other acts. Adoption cases are excluded from this Act because adoption is a specialized area which is thoroughly covered by the Uniform Adoption Act (UAA) (1994). Most States either will adopt that Act or will adopt the jurisdictional provisions of that Act. Therefore the jurisdictional provisions governing adoption proceeding are generally found elsewhere. 2016 OK CIV APP 22 FIRST NATIONAL BANK IN MARLOW, OKLAHOMA, Plaintiff/Appellee vs. DAVID W. BICKING and TAMMY M. BICKING, Defendants/Appellants. Case No. 113,741. December 30, 2015 APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY, OKLAHOMA HONORABLE DENNIS GAY, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Jeffery K. Archer, HAMMOND, ARCHER & KEE, PLLC, Duncan, Oklahoma, for Plaintiff/ Appellant Tyler C. Johnson, LEGAL AID SERVICES OF OKLAHOMA, INC., Lawton, Oklahoma, for Defendants/Appellants JERRY L. GOODMAN, VICE-CHIEF JUDGE: ¶1 In this foreclosure action, David W. Bicking and Tammy M. Bicking (Homeowners) appeal a February 17, 2015, order denying their motion for new trial seeking reconsideration of a December 9, 2014, journal entry which denied their motion for summary judgment and granted The First National Bank in Marlow, Oklahoma’s (Bank) counter-motion for summary judgment. This appeal proceeds under Oklahoma Supreme Court Rule 1.36, 12 O.S.2011, ch. 15, app.1, without appellate briefing. After review of the record on appeal, we reverse the trial court’s order denying reconsideration of the December 9, 2014, journal entry and remand for further proceedings consistent with this opinion. BACKGROUND ¶2 On March 1, 2011, Homeowners executed a promissory note secured by a mortgage in The Oklahoma Bar Journal 961 favor of Bank with a principal amount of $47,516.00, at an interest rate of 8.380% per annum with a one (1) year repayment term. The promissory note had repayment terms of eleven (11) regular payments of $586.40 per month, and a final, irregular balloon payment of $44,939.28. Tammy Bicking signed her and her husband’s, David Bicking, name on an amended note on March 20, 2012. The amended note extended the original loan for one (1) year with similar repayment terms and reduced the interest rate to 7.5%. ¶3 Homeowners defaulted on the loan and Bank filed suit to foreclose the note and mortgage on April 17, 2013. Homeowners answered, disputing the issue of default. Homeowners further filed a counterclaim, asserting violations of the Truth in Lending Act (TILA), the Homeownership and Equity Protection Act (HOEPA), the Oklahoma Consumer Credit Code (OCCC), the Oklahoma Consumer Protection Act (OCPA), as well as fraud. ¶4 On June 17, 2014, Homeowners filed a motion for summary judgment, asserting the note and mortgage were in violation of the TILA, HOEPA, that Bank failed to provide material disclosures as required by the TILA and the OCCC, and that Bank acted unethically and contrary to public policy. More specifically, Homeowners asserted Bank issued them a “high cost” mortgage loan that contained terms contrary to the substantive prohibitions contained in the HOEPA; that Bank failed to provide required disclosures under the TILA and the OCCC in a timely manner; and Bank’s actions were unethical, contrary to public policy, and substantially injurious to consumers in violation of the OCPA. ¶5 Bank responded, generally asserting Homeowners’ assertions were barred by the statute of repose proscribed by HOEPA, 15 U.S.C. §§ 1629, 1640(e). In addition, although Bank acknowledged that the initial mortgage loan was a “high cost” loan, it asserted the amended note’s interest rate was in full compliance with federal and state law. Bank further maintained all required disclosures were timely given to Homeowners. Finally, Bank asserted Homeowners’ loan was for a business purpose and therefore it was exempt from the requirements of the TILA. Bank also filed a countermotion for summary judgment, seeking foreclosure and judgment on Homeowners’ fraud counterclaim. 962 ¶6 After additional briefing and a hearing before the trial court on November 12, 2014, the trial court denied Homeowners’ motion for summary judgment, finding Homeowners’ note was exempt under the TILA, HOEPA, OCCC, and OCPA because the primary purpose of the loan was for a business purpose. In the alternative, the court found the note, as amended in March of 2012, did not qualify as a “high cost” mortgage. Thus, the TILA, HOEPA, OCCC, and OCPA provisions were not triggered and Homeowners had no claims under these Acts. With respect to the fraud claim, the trial court found there was no basis in fact for a fraud claim. With regard to the foreclosure action, the trial court granted Bank’s countermotion for summary judgment, granting Bank a judgment against Homeowners in the amount of $45,086.03 with interest, expenses, and an attorney’s fee. ¶7 On December 18, 2014, Homeowners filed a motion for new trial, asserting the trial court erred: 1) in finding the primary purpose of the mortgage loan was for a business purpose; 2) in finding the amended note was valid and binding on the parties; and 3) in finding, even if the amended note was valid, that the violations of the TILA and HOEPA were remedied by the amended note. By order filed on February 17, 2015, the trial court denied Homeowners’ motion for new trial. Homeowners appeal. STANDARD OF REVIEW ¶8 A motion to reconsider, if filed within ten (10) days of the order, is the functional equivalent of a motion for new trial. Strubhart v. Perry Mem’l Hosp. Trust Auth., 1995 OK 10, ¶ 16, 903 P.2d 263, 269. A new trial may be granted for the reasons set out in 12 O.S.2011, § 651. The trial court’s decision to deny a motion for new trial will not be disturbed absent an abuse of discretion. Evers v. FSF Overlake Assoc., 2003 OK 53, ¶ 6, 77 P.3d 581, 585. ¶9 The propriety of the trial court’s denial of the motion for new trial rests on the correctness of the court’s grant of summary judgment. Therefore we must examine by de novo review the trial court’s decision on summary judgment in order to determine whether the trial court abused its discretion in denying the motion for reconsideration. Evers, 2003 OK 53, at ¶ 6, 77 P.3d at 583. “Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 law.” City of Enid v. Public Employees Rel. Bd., 2006 OK 16, ¶ 5, 133 P.3d 281, 284-85; see also Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d 463, 464; Daugherty v. Farmers Coop. Ass’n, 1984 OK 72, ¶ 5, 689 P.2d 947, 949. ANALYSIS 1. Primary Purpose of the Loan ¶10 Homeowners contend the trial court erred in finding the primary purpose of Homeowners’ loan was for business purposes and that the loan was therefore exempt under the TILA and OCCC. ¶11 The TILA1 and OCCC apply only to consumer credit transactions. The TILA does not apply to an extension of credit “primarily for business, commercial, or agricultural purposes ….” 15 U.S.C. § 1603(1). Rather, the TILA’s scope is limited to “consumer” credit transactions, which are defined as transactions in which “the money, property, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 U.S.C. § 1602(h); 12 C.F.R. § 226.2(p). Similarly, the OCCC applies only when the “debt is incurred primarily for a personal, family or household purpose.” 14A O.S.2011, § 3-104(b). ¶12 In determining whether a transaction is primarily consumer or commercial in nature for purposes of the TILA exemption, the trial court must examine the transaction as a whole and the purpose for which the credit was extended. See Tower v. Moss, 625 F.2d 1161, 1166 (5th Cir.1980) (home improvement transaction primarily for consumer purpose although home had been leased for nominal rent); Gallegos v. Stokes, 593 F.2d 372 (10th Cir. 1979) (credit purchase of truck primarily for personal use where Plaintiff also intended to use it for business but did not have an on-going business nor the prospect of establishing one); Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 704 fn.11 (9th Cir. 2002) (mortgage loan “primarily” for personal use if only 10% of proceeds used for business purposes and primary purpose of loan was to pay off a second trust deed loan on the consumer’s house). Where credit is extended for both personal and business reasons, the mere fact that the transaction has some personal purpose does not automatically render it subject to the provisions of the TILA. See Gombosi v. Carteret Mortgage Corp., 894 F. Supp. 176, 180 (E.D. Pa. 1995). Rather, the court must determine whether the transaction is primarily for personal, family or household Vol. 87 — No. 13 — 5/14/2016 purposes. Id. A loan has a consumer purpose if the loan was “primarily for personal, family or household purposes.” 15 U.S.C. § 1602(h). The plaintiff bears the burden of showing that a disputed transaction is “a consumer credit transaction, not a business transaction.” Katz v. Carte Blanche Corp., 496 F.2d 747, 751 (3d Cir.), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L. Ed.2d 125 (1974); Quinn v. A.I. Credit Corp., 615 F.Supp. at 151, 153. ¶13 In the present case, Homeowners assert they applied for credit secured by a mortgage on their primary residence. The proceeds of the loan were used to pay off an existing mortgage on their residence, the existing debt on their personal automobile, credit card debt, and to purchase a truck that was used mostly for business.2 Homeowners contend less than one half of the loan proceeds were used to purchase the truck, i.e., for a business purpose. Finally, Homeowners cite Bank’s own records, a Disbursement Request, which provides the purpose of the loan was for “Personal, Family or Household Purposes or Personal Investment.” Thus, Homeowners contend the purpose of the loan was primarily for personal purposes and the loan is therefore not exempted from the TILA and OCCC. ¶14 Bank disagrees, asserting Homeowners approached Bank to restructure their debt after being discharged from Chapter 7 bankruptcy and that the loan at issue was used to pay off their original home mortgage, two (2) motor vehicles, one of which was a business vehicle, and credit card debt. Finally, Bank asserts it characterized the note as an agricultural loan secured by farmland. Thus, Bank contends the primary purpose of the loan was business. ¶15 The trial court found the undisputed facts indicated that the primary purpose of the loan was business and therefore Homeowners had no claim under the Acts. We disagree. Homeowners have presented evidentiary material sufficient to tender a disputed issue of fact concerning the purpose of the loan and whether it was primarily for a personal or business purpose. A court may grant summary judgment only when neither genuine issues of material fact nor any conflicting inferences that may be drawn from uncontested facts are in dispute and the law favors the moving party’s claim or liability-defeating defense as a result of which the moving party becomes entitled to judgment as a matter of law. Bowman v. Presley, 2009 OK 48, ¶ 6, 212 P.3d 1210, 1216. No single, The Oklahoma Bar Journal 963 clear, and undisputed answer to this question can be drawn from the parties’ evidentiary substitutes found in the record. Resolution of this uncertainty is a task that must fall upon the trier of fact. Id. at ¶ 15, at 1218. Accordingly, the trial court erred in denying Homeowners’ motion for new trial, seeking reconsideration of the December 9, 2014, journal entry finding their loan was for a business purpose and as a result, the TILA, HOEPA, and OCCC did not apply. The matter is remanded to the trial court for further proceedings consistent with this opinion. 2. Amended Note and Violations of Acts ¶16 Homeowners further contend the trial court erred in finding the amended note cured Bank’s violations of the Acts. Homeowners assert they were obligated and paid under the original note’s terms for one (1) year and that violations under the Acts occurred under the original note notwithstanding a subsequent amendment of the note. Homeowners note the TILA provides a procedure for a lender to correct errors made that violate the disclosure requirements of the Act, citing 15 U.S.C. § 1640(b), and that Bank failed to follow these procedures.3 ¶17 Bank disagrees, asserting the original note was extinguished and amended on March 20, 2012. Thus, the Act’s provisions regarding “high cost” mortgages no longer apply. Alternatively, Bank asserts Homeowners received adequate disclosures prior to the time that the proceeds were disbursed and were advised that the mortgage covered their home and that they had the right to rescind the transaction. Finally, Bank contends any mistakes it made were the result of a bona fide error, thereby relieving it from any liability under the Act.4 ¶18 The trial court found the note as amended in March of 2012 did not qualify as a “high cost” mortgage. Thus, the TILA, HOEPA, OCCC, and OCPA provisions were not triggered and Homeowners had no claim under these Acts. This was error. The original note was executed by Homeowners on March 1, 2011. Bank acknowledges the original note was a “high cost” mortgage and therefore subject to the provisions of the Acts. Homeowners have alleged various violations of the Acts, including Bank’s failure to timely provide certain disclosures, the inclusion of a due-on-demand clause as well as a balloon payment, inter alia. These purported violations occurred prior to or 964 simultaneous with the execution of the original note and were not extinguished or cured by the March 12, 2012, amendment of the note. The trial court erred in holding otherwise. Accordingly, the trial court erred in denying Homeowners’ motion for new trial, seeking to reconsider the December 9, 2014, journal entry finding the TILA, HOEPA, OCCC, and OCPA provisions were not triggered and Homeowners had no claim under these Acts. The matter is remanded to the trial court for further proceedings consistent with this opinion. ¶19 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. FISCHER, P.J., and WISEMAN, J., concur. JERRY L. GOODMAN, VICE-CHIEF JUDGE: 1. In 1968, Congress enacted the TILA, a federal statute that governs the terms and conditions of consumer credit by, inter alia, requiring lenders to disclose certain details about loans and loan fees and costs. 15 U.S.C. § 1601 et seq. The purpose of the TILA “is to promote the ‘informed use of credit’ by consumers.” Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219 (1981) (quoting 15 U.S.C. § 1601). Through its enactment of the TILA, Congress sought “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit[.]” 15 U.S.C. § 1601(a). Congress enacted HOEPA in 1994 as an amendment to the TILA after abusive practices in home mortgage lending continued. See Pub.L. 103-325 (amending the TILA at 15 U.S.C. §§ 1601-02, 1604, 1610, 1639-41, 1648). HOEPA requires lenders to provide borrowers with additional disclosures with respect to certain home mortgages, including high cost loans. 15 U.S.C. § 1639(a)(1). To implement the TILA and HOEPA, the Board of Governors of the Federal Reserve System introduced Regulation Z. See 12 C.F.R. § 226.1 et seq. 2. Homeowners assert they borrowed $47,516.00: $11,868.83 was paid on an existing mortgage, $10,834.95 on an existing vehicle, $3,871.95 in cash, and $16,660.57 to purchase a service vehicle for a business and the remaining $4,279.70 in fees and closing costs. Thus, they contend 65% of the loan was for personal purposes. 3. 15 U.S.C. § 1640 provides: (b) Correction of errors A creditor or assignee has no liability under this section or section 1607 of this title or section 1611 of this title for any failure to comply with any requirement imposed under this part or part E of this subchapter, if within sixty days after discovering an error, whether pursuant to a final written examination report or notice issued under section 1607(e)(1) of this title or through the creditor’s or assignee’s own procedures, and prior to the institution of an action under this section or the receipt of written notice of the error from the obligor, the creditor or assignee notifies the person concerned of the error and makes whatever adjustments in the appropriate account are necessary to assure that the person will not be required to pay an amount in excess of the charge actually disclosed, or the dollar equivalent of the annual percentage rate actually disclosed, whichever is lower. 4. 15 U.S.C.A. § 1640 provides: (c) Unintentional violations; bona fide errors A creditor or assignee may not be held liable in any action brought under this section or section 1635 of this title for a violation of this subchapter if the creditor or assignee shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. Examples of a bona fide error include, but are not limited to, clerical, calculation, computer malfunction and programing, and printing errors, except that an error of legal judgment with respect to a person’s obligations under this subchapter is not a bona fide error. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 2016 OK CIV APP 23 ROGER DAVIS, Plaintiff/Appellant, vs. THE OKLAHOMA DEPARTMENT OF CORRECTIONS and ROBERT PATTON, as director, Defendants/Appellees. Case No. 113,773. March 14, 2016 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE ROGER H. STUART, TRIAL JUDGE AFFIRMED AS MODIFIED AND REMANDED FOR FURTHER PROCEEDINGS John M. Dunn, THE LAW OFFICES OF JOHN M. DUNN, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellant E. Scott Pruitt, ATTORNEY GENERAL, Justin P. Grose, ASSISTANT ATTORNEY GENERAL, OKLAHOMA OFFICE OF THE ATTORNEY GENERAL LITIGATION SECTION, Oklahoma City, Oklahoma, for Defendants/Appellees JOHN F. FISCHER, JUDGE: ¶1 Roger Davis appeals the order granting the Oklahoma Department of Corrections’ motion to dismiss his petition seeking declaratory and injunctive relief regarding the Oklahoma Sex Offenders Registration Act, 57 O.S.2011 §§ 581 through 590.2 (Registration Act). Davis’s petition alleges that the application of the Registration Act in his case violates his constitutional rights. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing.1 We find no violation of the Ex Post Facto Clause or the Equal Protection Clause as asserted by Davis and affirm the district court’s order dismissing his petition in that regard. However, because the district court did not address the validity of Davis’s due process claim, the case must be remanded for that determination. BACKGROUND ¶2 Davis was convicted in Indiana on October 8, 1997, and sentenced to five years in prison for the crime of “Lewd or Indecent Proposals/Acts to a Child.” That crime is one requiring registration with the Department of Corrections by any person subject to the RegisVol. 87 — No. 13 — 5/14/2016 tration Act. 57 O.S. Supp. 2010 § 582.2 After serving less than two years of his Indiana sentence, Davis was released from prison. He entered a plea of nolo contendere and received a deferred sentence in October of 1998. Davis completed all requirements of his sentence and probation in 2002. Davis moved to Oklahoma in October of 2013 and registered with the Department as a sex offender. He was assigned risk level three: “a designation that the person poses a serious danger to the community and will continue to engage in criminal sexual conduct.” 57 O.S.2011 § 582.5(C)(3). ¶3 Davis filed his petition seeking declaratory and injunctive relief. He alleged that the Registration Act constituted an ex post facto law and denied him the equal protection of the laws in violation of the Oklahoma and United States Constitutions. The Department removed the case to the United States District Court for the Western District of Oklahoma and filed a motion to dismiss, arguing that the petition failed to state a claim on which relief could be granted. The federal court granted the motion in part, ruling that Davis had not stated a claim regarding federal ex post facto law. The federal court determined that factual issues precluded resolution of the Department’s motion concerning Davis’s other claims and remanded the case back to the Oklahoma County district court. ¶4 Davis filed an amended petition in district court, asserting only Oklahoma constitutional theories of recovery. The Department renewed its motion to dismiss. Davis appeals the district court’s order, which granted the Department’s motion to dismiss and found that the petition “failed to state a claim on which relief can be granted with respect to his ex post facto and equal protection claims under the Oklahoma Constitution.” STANDARD OF REVIEW ¶5 The purpose of a motion to dismiss a petition for failure to state a claim is to test the law that governs the claim rather than the facts asserted in support of that claim. Kirby v. Jean’s Plumbing Heat & Air, 2009 OK 65, ¶ 5, 222 P.3d 21 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957)). On review of an order dismissing a petition all allegations in the petition are taken as true. Gens v. Casady Sch., 2008 OK 5, ¶ 8, 177 P.3d 565. Appellate review of a motion to dismiss involves de novo consideration of whether the petition is legally sufficient. Indiana Nat’l Bank v. Dep’t of Human Servs., The Oklahoma Bar Journal 965 1994 OK 98, ¶ 2, 880 P.2d 371. De novo review requires plenary, independent, and non-deferential examination of the trial court’s rulings of law. In re Estate of Bell-Levine, 2012 OK 112, ¶ 5, 293 P.3d 964. ANALYSIS ¶6 Davis’s petition alleges the facts of his conviction and incarceration in Indiana, his move to Oklahoma, registration with the Department pursuant to the Registration Act and his classification as a level three risk. He asserts that because of his risk assignment, he is required to register “for life,” although had he been convicted in Oklahoma on October 8, 1997, rather than in Indiana, he would have been required to register for only ten years. He contends that application of the Registration Act by the Department violates the prohibition against ex post facto laws and denies him the equal protection of the law. Both theories of recovery assert violations of the Oklahoma Constitution. I. The Ex Post Facto Argument ¶7 As the parties recognize, the Oklahoma Supreme Court’s decision in Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004, is the leading case regarding Davis’s ex post facto argument. In 1998, Starkey pled nolo contendere and received a deferred sentence in Texas. The crime would have required registration for a period of ten years had it been committed in Oklahoma. Starkey moved to Oklahoma sometime in 1998 and registered with the Department as a sex offender. In 2004, the Registration Act was amended to begin the registration period from the date of completion of the sex offender’s sentence or probation rather than from the date of conviction. In 2007, the Act was amended again to implement a three-level classification system and lengthen the registration period. After the 2007 amendment, the Department notified Starkey that he had been assigned a level three classification, requiring him to register for life. Starkey challenged the Department’s classification. ¶8 The Starkey Court held that the Registration Act was penal in nature, and the registration period could not be extended pursuant to a subsequent amendment without violating “the prohibition on ex post facto laws provided in Article 2, § 15 of the Oklahoma Constitution.” Id. ¶ 79. The Court rejected Starkey’s argument that he should be subject to the version of the Registration Act in effect on the date 966 he was convicted in Texas. “The correct date to apply is when Starkey became subject to [the Registration Act] by entering and intending to be in Oklahoma after his conviction.” Id. ¶ 82 (emphasis in original) (footnote omitted). The Court found that neither the 2004 nor the 2007 amendments to the Registration Act could be applied to Starkey, because he first became subject to registration when he moved to Oklahoma in 1998, prior to the effective date of either amendment. ¶9 In its ex post facto analysis in subsequent cases, the Oklahoma Supreme Court has consistently applied the version of the Registration Act in effect when a person convicted in another state first becomes subject to the Registration Act by moving to Oklahoma. See Bollin v. Jones, 2013 OK 72, 349 P.3d 537; Burk v. State ex rel. Dep’t of Corr., 2013 OK 80, 349 P.3d 545; Ransdell v. State ex rel. Oklahoma Dep’t of Corr., 2013 OK 106, 322 P.3d 1064. Starkey and these cases are dispositive of Davis’s argument that the Ex Post Facto Clause requires application of the version of the Registration Act in effect on the date of his Indiana conviction. It does not. The district court’s order dismissing Davis’s petition for failure to state a claim for violation of the Ex Post Facto Clause of the Oklahoma Constitution is affirmed. II. The Equal Protection Argument ¶10 Davis also argues that the Department’s application of the Registration Act denies him the equal protection of the law. His argument takes two forms. First, Davis argues that he is being treated differently than persons convicted in Oklahoma on the date he was convicted in Indiana. Second, he contends that the Registration Act infringes on his fundamental right to travel, have custody of his children, choose with whom he can live and whom he can marry. ¶11 At the oral argument in this case, Davis confirmed that his intent, in filing his amended petition, was to assert an equal protection claim based only on the Oklahoma Constitution. Oklahoma does not have a separate Equal Protection Clause like that contained in the Fourteenth Amendment to the United States Constitution. Fair Sch. Fin. Council of Okla., Inc. v. State, 1987 OK 114, ¶ 54, 746 P.2d 1135. Nonetheless, the Oklahoma Supreme Court has identified “a functional equivalent of that clause in the anti-discrimination component of our state constitution’s due process section, Art. 2, § 7, Okla. Const.” Ross v. Peters, 1993 OK The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 8, n.29, 846 P.2d 1107. See also Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 31, ___ P.3d ___. Oklahoma’s constitution “contains a built-in anti-discrimination component which affords protection against unreasonable or unreasoned classifications serving no ‘important governmental objectives.’” Fair School Finance, 1987 OK 114, n.48 (quoting Davis v. Passman, 442 U.S. 228, 234, 99 S. Ct. 2264, 2271 (1979)). “A classification is not to be measured by whether it discriminates, but rather by whether it discriminates impermissibly or invidiously.” Ross, 1993 OK 8, ¶ 20. A. The Discriminatory Classification Argument ¶12 The first component of Davis’s equal protection argument relies on Hendricks v. Jones, 2013 OK 71, 349 P.3d 531. Citing Hendricks, Davis asserts that “discrimination based on the jurisdiction in which the conviction occurred has no rational basis for protecting the public.” Id. ¶ 14. Hendricks was convicted of a sex crime in California in 1982. He moved to Oklahoma in 2009. The Registration Act was adopted effective November 1, 1989, and did not require registration by persons convicted in Oklahoma prior to that date or persons who moved to Oklahoma after being convicted in another jurisdiction prior to that date. However, when Hendricks moved to Oklahoma, the version of the Registration Act in effect required registration by any person who moved to Oklahoma after November 1, 1989, after being convicted in another jurisdiction, regardless of the date of conviction. Hendricks argued that requiring him to register, when those convicted in Oklahoma on the same date were not, denied him the equal protection of the law. The Court agreed. Applying [the Registration Act’s] requirements to sex offenders who now reside in Oklahoma and were convicted in another jurisdiction prior to [the Registration Act’s] enactment when an Oklahoman convicted in Oklahoma of a similar offense prior to [the Registration Act’s] enactment is not required to register, violates a person’s equal protection guarantees. Id. ¶ 17. ¶13 Davis argues that he is being denied “equal protection guarantees” because he is being treated differently than those who were convicted of a sex crime in Oklahoma on the date of his Indiana conviction. He claims the Vol. 87 — No. 13 — 5/14/2016 holding in Hendricks prohibits this type of discrimination based solely on the jurisdiction of his conviction. As Davis correctly points out, the Registration Act in effect in October 1997, when he was convicted, required a maximum registration period of ten years. However, when he moved to Oklahoma in October 2013 the version in effect required a fifteen-year minimum registration period and employed a classification system that, in Davis’s case, resulted in a lifetime registration requirement. Compare 57 O.S. Supp. 2009 §§ 582.5 and 583, with 57 O.S. Supp. 1995 § 583. Unlike the circumstances in Hendricks, however, Davis’s conviction did not occur prior to adoption of the Registration Act in 1989. The class at issue in Hendricks was “persons residing in Oklahoma after November 1, 1989, who were convicted of a sex crime in another jurisdiction prior to . . . November 1, 1989.” Hendricks, 2013 OK 71, ¶ 10. Nonetheless, Davis asks us to extend the holding in Hendricks and apply the version of the Registration Act in effect on the date of his Indiana conviction, even though that was long before his move to Oklahoma. Equal protection of the law does not mandate that result. ¶14 The initial question in equal protection cases is to “identify the population and whether a distinction or classification has been drawn within that population.” Rivas v. Parkland Manor, 2000 OK 68, ¶ 9, 12 P.3d 452. Classification based on the date of conviction, for those convicted after adoption of the Registration Act, is not the relevant “class.” “[T]he controlling registration requirements are those which were in effect when an individual meeting the criteria of a sex offender, convicted in another jurisdiction, enters Oklahoma and becomes subject to [the Registration Act].” Burk v. State ex rel. Dep’t of Corr., 2013 OK 80, ¶ 11, 349 P.3d 545 (citing Starkey, 2013 OK 43, 305 P.3d 1004). Accord Bollin v. Jones, 2013 OK 72, 349 P.3d 537 (enjoining application of a version of the Registration Act amended after a person convicted in another jurisdiction moved to Oklahoma); Ransdell v. State ex rel. Okla. Dep’t of Corr., 2013 OK 106, 322 P.3d 1064 (holding unconstitutional application of the 2007 level-assignment system to a person who moved to Oklahoma in 1999). In each of the Supreme Court’s postStarkey cases, except Hendricks, some version of the Registration Act was applied. The terms of the applicable registration requirements were determined pursuant to the version of the Registration Act in effect when the sex offender moved to Oklahoma. The Oklahoma Bar Journal 967 ¶15 Davis does not argue that he is a member of a suspect class. Cf. Butler v. Jones ex rel. State ex rel. Dep’t of Corr., 2013 OK 105, ¶ 12, 321 P.3d 161 (eliminating registration requirement for persons with expunged out-of-state conviction satisfies the rational basis test for equal protection purposes). Nor does Davis argue that he is being treated differently than any other person who became subject to the Registration Act on the date he moved to Oklahoma. That is, however, the relevant classification required by the Oklahoma Supreme Court in Starkey. Burk is dispositive of Davis’s equal protection argument based on discriminatory classification. The Burk Court held it was unconstitutional to apply the 2007 level-assignment system to a resident convicted in another jurisdiction, who moved to Oklahoma in 2004. But the Court remanded the case for determination of whether Burk moved to Oklahoma before, or after, the effective date of the 2004 amendment to the Registration Act and, therefore, whether his required registration period was for ten years from his conviction or for ten years from the completion of his sentence. Equal application of the Registration Act to all those who become subject to the Act at the same time is a “sufficient safeguard against arbitrary discrimination.” Butler, 2013 OK 105, ¶ 11. “The equal protection clause is satisfied if the statute applies alike or in reasonable degree to all parties in the same class.” Daube v. Okla. Tax Comm’n, 1944 OK 218, ¶ 29, 152 P.2d 687. Davis has failed to show that application of the version of the Registration Act in effect when he moved to Oklahoma draws a “distinction or classification” within the population of which he is a member. Rivas, 2000 OK 68, ¶ 9. B. The Fundamental Rights Argument ¶16 Davis’s second equal protection argument is that the Registration Act unconstitutionally infringes on his fundamental rights to travel, have custody of his children, choose with whom to live and whom to marry.3 Davis’s argument focuses on his right to travel. The United States Supreme Court “long ago recognized that . . . our constitutional concepts of personal liberty unite to require that all citizens be free to travel . . . uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” Shapiro v. Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322, 1329 (1969). A constitutional right to travel is “fundamental,” and one that has been “firmly established and repeatedly recognized.” United 968 States v. Guest, 383 U.S. 745, 757-58, 86 S. Ct. 1170, 1178 (1966). It is generally recognized that the right to travel is protected by the Privileges and Immunities Clause of the United States Constitution found in Article IV, § 2, and the Fourteenth Amendment to that Constitution. Saenz v. Roe, 526 U.S. 489, 498, 119 S. Ct. 1518, 1524 (1999). As it relates to this case, the right to travel ensures that once Davis relocated to Oklahoma, he was entitled to the same privileges and immunities enjoyed by the citizens of this State. As the Saenz Court observed, citizens may select the state in which they choose to reside; “States, however, do not have any right to select their citizens.” Id. at 511, 119 S. Ct. at 1520. ¶17 Davis argues that equal protection of the law means that he is entitled to be treated for registration purposes like all others subject to the Registration Act on the date of his Indiana conviction. We find this argument unpersuasive. First, Saenz and Shapiro are distinguishable. Both decisions declared residency requirements imposed on the receipt of welfare benefits provided by the state to be unconstitutional on the basis that denying benefits available to state citizens until new citizens of the state had resided therein for one year impermissibly infringed on the right to travel. The problem in Shapiro and Saenz is not present here. Davis will not be entitled to the “benefits” of the version of the Registration Act in effect when he was convicted in Indiana no matter how long he resides in Oklahoma. ¶18 Second, Davis is not asserting an equal protection claim based on federal law; he relies solely on the equal protection provision of the Oklahoma Constitution. He finds recognition of a State right to travel in Edmondson v. Pearce, 2004 OK 23, 91 P.3d 605, cert. denied, Tally v. Edmondson, 543 U.S. 987, 125 S. Ct. 495 (2004), and Hendricks v. Jones, 2013 OK 71, 349 P.3d 531. Edmondson was decided based on the right to travel protected by the United States Constitution, and Hendricks was decided on the basis of a discriminatory classification not the infringement of a fundamental right. Likewise, Butler v. Jones ex rel. State ex rel. Dep’t of Corr., 2013 OK 105, 321 P.3d 161, is not a “fundamental rights case.” In Butler, the Court found that eliminating the registration requirement for Oklahoma residents whose out-of-state convictions were expunged did not implicate the fundamental rights of persons convicted in Oklahoma and required to register even though their convic- The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 tions were subsequently expunged. The relationship between this holding and the right to travel is, at best, tangential. Davis has not pointed to any Oklahoma authority recognizing a right to travel pursuant to State law independent of his privileges and immunities as a United States citizen. ¶19 However, the Department concedes that the Registration Act could impact some of Davis’s fundamental rights. Because those convicted in Oklahoma are subject to the version of the Registration Act in effect on the date of their conviction, Davis contends that, to be treated the same, the Department is required to apply the version of the Registration Act in effect when he was convicted. But, when Davis was convicted in Indiana, the Oklahoma Registration Act did not apply to him, nor was it part of his Indiana sentence. The same is true regarding the sex offender registration laws of any state other than Indiana. Some version of a sex offender registration law was in effect in every state when Davis chose to move from Indiana. See Hendricks, 2013 OK 71, n.11. Consequently, Davis’s fundamental rights were affected regardless of where he chose to move. Nonetheless, with respect to these fundamental rights, once Davis moved to Oklahoma he was treated no differently than any other person convicted of a sex crime in Oklahoma on that date. The restrictions on Davis’s child custody, housing and so forth apply with equal force to every other convicted sex offender living in Oklahoma. Oklahoma’s Constitution does not require the state to treat Davis like something he is not, a person subject to the Registration Act on the date he was convicted in Indiana. “[T]hings which are different in fact or opinion [are not required] to be treated in law as though they were the same.” Kirk v. Bd. of Cnty. Comm’rs, Muskogee Cnty., 1979 OK 80, ¶ 6, 595 P.2d 1334. Accord Brown v. Lillard, 1991 OK 74, 814 P.2d 1040. ¶20 Nonetheless, Davis argues that application of the version of the Registration Act in effect when he moved to Oklahoma, rather than the version in effect when he was convicted in Indiana, fails the strict scrutiny test. Both Hendricks and Butler were decided on the basis of the rational-basis test, the lowest threshold of analysis in equal protection cases. Butler, 2013 OK 15, ¶ 12. Davis claims “strict scrutiny” is the appropriate test in this case because his fundamental rights are at issue. Davis is correct. As the Hendricks court recogVol. 87 — No. 13 — 5/14/2016 nized, equal protection analysis requires strict scrutiny of legislative classifications affecting the exercise of fundamental rights. Hendricks, 2013 OK 71, ¶ 9. This heightened standard of review is satisfied if the law is “substantially related to an important governmental interest.” Anderson v. Eichner, 1994 OK 136, n.35, 890 P.2d 1329. See also Shapiro v. Thompson, 394 U.S. at 634, 89 S. Ct. at 1322 (no equal protection violation if the law is “necessary to promote a compelling governmental interest”). The Oklahoma Supreme Court has previously addressed this issue. “[N]otifying citizens of the presence of convicted sex offenders is a legitimate governmental objective and protecting Oklahoma citizens from sex offenders is a compelling state interest. Hendricks, 2013 OK 71, ¶ 17. “A sex offender registry is a valid tool for the state to use for public safety. The State may impose registration duties and may publish registration information as part of its punishment of this category of defendants.” Starkey, 2013 OK 43, ¶ 78. ¶21 Davis has not shown that application of the Registration Act in effect when he moved to Oklahoma fails the strict scrutiny test. The district court’s order dismissing Davis’s equal protection claim is affirmed. III. The Due Process Argument ¶22 Davis’s final argument, assuming the 2013 version of the Registration Act applies, asserts a due process violation by the manner in which he was classified. Davis’s Amended Petition does not articulate this theory. However, there is a general reference to constitutionally protected liberty interests, and Davis clearly asserted a due process claim in his Response to the Department’s motion to dismiss. In addition, Davis was not given the opportunity to amend his petition to more clearly assert this claim. “On granting a motion to dismiss a claim for relief, the court shall grant leave to amend if the defect can be remedied . . . .” 12 O.S.2011 § 2012(G). “Interests protected by due process are not always ‘created by the [Federal] Constitution. Rather, they are [often] created and their dimensions are defined’ by some independent source, which consists quite frequently of a state statute or rule entitling the person to certain benefits.” Phillips v. Williams, 1980 OK 25, ¶ 5, 608 P.2d 1131 (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972)). Consequently, to the extent that Davis The Oklahoma Bar Journal 969 can state a claim based on a violation of due process, he must be permitted to do so. 2. Documents the reason for the override in the case file of the offender. ¶23 Davis alleged in his petition that he was not convicted of an “aggravated” sex offense and that he is not a “habitual” sex offender. He now argues, therefore, that there was no basis on which to classify him as a “Level three” offender. At the time Davis received his level assignment, the statute provided: Provided, in no event shall the sex offender level assignment committee, the Department of Corrections, or a court override and reduce a level assigned to an offender as provided in subsection C of this section. C. The offense for which the person is convicted shall serve as the basis for the level assigned to the person. In selecting the level assignment, the sex offender level assignment committee shall use the following general guidelines: 1. Level one (low): a designation that the person poses a low danger to the community and will not likely engage in criminal sexual conduct; 2. Level two (moderate): a designation that the person poses a moderate danger to the community and may continue to engage in criminal sexual conduct; and 3. Level three (high): a designation that the person poses a serious danger to the community and will continue to engage in criminal sexual conduct. 57 O.S.2011 § 582.5. For purposes of the Department’s motion to dismiss, we must take as true Davis’s allegation that he is not a habitual sexual offender. See Great Plains Fed. Sav. and Loan Ass’n v. Dabney, 1993 OK 4, n.3, 846 P.2d 1088. Consequently, the basis for classifying Davis as a “Level three” offender is not supported by this record. ¶24 Further, Davis contends that not only was there no evidentiary basis for his “Level three” assignment, but also that he was not afforded a hearing to bring this fact to the Department’s attention or provided a procedural mechanism to challenge the classification decision. The applicable version of the statute provides: D. The sex offender level assignment committee, the Department of Corrections, or a court may override and increase the level assignment only if the entity: 1. Believes that the level assignment assessed is not an accurate prediction of the risk the offender poses to the community; and 970 57 O.S.2011 § 582.5. Due process analysis indicates that: [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. State ex rel. Bd. of Regents of The Univ. of Okla. v. Lucas, 2013 OK 14, ¶ 29, 297 P.3d 378, (quoting Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 903 (1976)). It is apparent from the order appealed that the district court did not perform the due process balancing test required by Lucas, no doubt because that claim was not articulated in the text of Davis’s petition. Nonetheless, Davis’s petition “must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle the plaintiff to relief.” Tuffy’s, Inc. v. City of Oklahoma City, 2009 OK 4, ¶ 6, 212 P.3d 1158. We cannot make that determination in the “first-instance” on appeal. Evers v. FSF Overlake Assocs., 2003 OK 53, ¶ 18, 77 P.3d 581. Therefore, this case must be remanded to the district court for that determination. CONCLUSION ¶25 The district court’s order dismissing Davis’s petition with respect to his theories of recovery based on alleged violations of the prohibition against ex post facto laws and the functional equivalent of the federal Equal Protection Clause found in the Oklahoma Constitution is affirmed. That order is modified to grant Davis leave to amend his petition to assert a theory of recovery based on an alleged due process violation pursuant to the procedure deemed appropriate by the district court after remand. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 ¶26 AFFIRMED AS MODIFIED AND REMANDED FOR FURTHER PROCEEDINGS. GOODMAN, C.J., and WISEMAN, P.J., concur. JOHN F. FISCHER, JUDGE: 1. Davis’s motion to file supplemental briefing in the appellate court is denied. After oral argument in this case, we find additional briefing is unnecessary. 2. Unless otherwise noted, citations will be to the version of the Registration Act in effect in October 2013 when Davis moved to Oklahoma. 3. Davis misstates the effect of section 590.1 of the Registration Act on his right to marry. The statute provides: “Nothing in this subsection shall prohibit married persons, both of whom are required to register as sex offenders, or two or more blood relatives who are required to register as sex offenders, from residing in any individual dwelling during the term of registration as a sex offender.” Further, as the parties conceded during oral argument, the record does not disclose either Davis’s marital or familial status. 2016 OK CIV APP 24 ROBERT JUDSON RADFORD, Petitioner/ Appellant, vs. MELISSA JENNINGS RADFORD, Respondent/Appellee. Case No. 113,908. March 11, 2016 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE THERESA DREILING, JUDGE AFFIRMED James R. Hicks, Caitlin J. Murphy, Joseph V. Allen, BARROW & GRIMM, P.C., Tulsa, Oklahoma, for Husband/Appellant, Melissa F. Cornell, ROBERTSON CORNELL, Tulsa, Oklahoma, for Respondent/Appellee. Bay Mitchell, Judge: ¶1 Petitioner/Appellant Robert Judson Radford (“Husband”) seeks interlocutory review of the trial court’s denial of his request to disqualify counsel representing Respondent/ Appellee Melissa Jennings Radford (“Wife”) when such counsel employed a paralegal who formerly worked for the guardian ad litem in the case. Because we find the paralegal was effectively screened from the case, the decision of the trial court is AFFIRMED. ¶2 Husband filed a petition seeking dissolution of his marriage to Wife in 2007. The divorce decree was entered December 12, 2008, but both parties agree intense litigation between them has continued nearly constantly since that time. In an attempt to resolve some of those issues, the court appointed Todd Alexander as guardian ad litem (“GAL”) on May 1, 2012 for the parties’ minor children. At that time, Vol. 87 — No. 13 — 5/14/2016 Toni Reed (“Ms. Reed”) worked for the GAL as a paralegal. Ms. Reed’s duties included working on the Radford case. She attended the GAL’s meetings with the minor children but did not sit in on any of the GAL’s meetings with the parties. Her interactions with the parties mainly consisted of scheduling appointments and taking messages. Her employment continued until September 2014 when she took a position at the law firm of Wife’s counsel, Robertson Cornell. ¶3 Robertson Cornell is a small firm which employs, in addition to its two lawyers, two paralegals and one other secretary. Melissa Cornell (“Ms. Cornell”) began representing Wife July 18, 2013.1 When Ms. Reed began her employment at Robertson Cornell in October 2014, Ms. Cornell instructed Ms. Reed that she was not to work on the Radford case. Ms. Cornell further instructed Ms. Reed not to share any confidential information regarding the Radford case she may have learned while working for the GAL. Even with these instructions, Ms. Reed notarized Ms. Cornell’s signature on some pleadings filed in the Radford case and received an email from an assistant at the law firm of Wife’s counsel, Barrow & Grimm, with a proposed pre-trial order attached. Ms. Reed testified she did not review any of the documents she notarized except for the signature page and that she was the only notary present in the office at the time notarization was needed. Ms. Cornell conceded to the trial court she failed to provide written notice to Husband’s counsel or the court of Ms. Reed’s employment. Wife testified that having to retain new counsel in this matter would cause significant harm to her mainly due to the cost of having a new lawyer become familiar with the case. ¶4 The pleadings Ms. Reed notarized were filed in the case beginning November 2014. Husband filed his disqualification motion February 5, 2015, which was a little over two weeks before the parties were scheduled for trial on Wife’s motion to modify physical custody of the parties’ minor children. Husband and his counsel concede Wife’s counsel attempted to establish a “Chinese wall” to screen Ms. Reed from having any access to the Radford case but claim the attempt was not successful as evidenced by Ms. Reed’s notarization of documents filed in the case and by her receipt of the email.2 Husband further argues that the failure of Wife’s counsel to give The Oklahoma Bar Journal 971 them or the court written notice of Ms. Reed’s employment requires automatic disqualification regardless of whether the screening was satisfactory. At the evidentiary hearing following the parties’ unsurprising inability to agree to stipulated facts, Husband testified Ms. Reed’s employment with Robertson Cornell made him worried Wife would somehow gain access to confidential information shared with the GAL which he did not have access to. The GAL did not file a written report in this case but testified he revealed all of the information he had in the case at an earlier hearing in open court where both parties were present.3 The GAL testified at the hearing on Husband’s motion to disqualify and stated Ms. Reed would not have had access to any additional information following his prior testimony because she no longer worked for him. ¶5 Following testimony presented on behalf of both parties, the trial court ruled from the bench where she decided the case under Rule 1.12 of the Rules of Professional Conduct. The trial court stated it applied that rule because the GAL, Ms. Reed’s former employer, was acting as a third-party neutral. The court went on to state that it found the screen set up by Robertson Cornell was sufficient even though Ms. Reed notarized some documents filed in the case because notarization did not require her to actually review the substance of the documents, just the signatures pages. The court also refused to find that Robertson Cornell’s failure to inform Husband or the court in writing about Ms. Reed’s employment resulted in automatic disqualification of Ms. Cornell as counsel for Wife. The court relied on Oklahoma case law which sets the burden for disqualification very high. E.g. Hayes v. Central States Orthopedic Specialists, Inc., 2002 OK 30, 51 P.3d 562. The trial court’s ruling from the bench was followed by a written order which simply stated the court denied Husband’s motion to disqualify Wife’s counsel “for the reasons specifically set forth in open Court and contained within the record.” ¶6 On appeal Husband questions whether the trial court’s order contains requisite findings sufficient to support its order; whether the trial court abused its discretion in determining whether Wife’s counsel effectively screened Ms. Reed; whether there was sufficient evidence to support the trial court’s finding that Ms. Reed was effectively screened; and whether the trial court abused its discretion in deny972 ing the disqualification motion despite the failure of Wife’s counsel to give written notice of Ms. Reed’s employment. STANDARD OF REVIEW ¶7 An order granting or denying a motion to disqualify counsel is a final order subject to appellate review under 12 O.S. §953. Miami Business Services, LLC v. Davis, 2013 OK 20, ¶10, 299 P.3d 477. “When reviewing the order, we review the trial court’s findings of fact for clear error and carefully examine de novo the trial court’s application of ethical standards.” Id. ANALYSIS ¶8 “[T]he barrier a party must surmount to secure the disqualification of his opponent’s counsel is high.” Hayes, 2002 OK 30, ¶9. “While a party’s right to choose his own counsel may be set aside under limited circumstances, a showing must first be made that declining to do so would threaten the integrity of the judicial process.” Id. (Internal quotations and citations omitted.) The Rules of Professional Conduct recognize conflicts of interest may arise from a third-party neutral’s work in a matter resulting in the third-party neutral being prohibited from representing parties in the same matter. 5 O.S. Ch.1 Appx. 3-A, Rule 1.12. ¶9 Here, the GAL, Ms. Reed’s former employer, acted as a third-party neutral. See Rowe v. Rowe, 2009 OK 66, ¶5, 218 P.3d 887 (“The role of a guardian ad litem in a custody dispute is to act as an arm of the court and to see to the best interest of the child. In custody matters [the GAL] has almost universally been seen as owing his primary duty to the court. . . not strictly to the child client.”). As such, he would be prohibited from personally representing another party in this case unless all the parties consented in writing, but the disqualification would not necessarily extend to other lawyers in his firm. Rule 1.12 provides in pertinent part: (a) [A] lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, or as a mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly under- The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 take or continue representation in the matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule. Ms. Reed is not a lawyer, but the Rules of Professional Conduct extend to nonlawyer assistants. 5 O.S. Ch.1 Appx. 3-A, Rule 5.3; See also Hayes, 2002 OK 30, ¶16. Accordingly, her employment at Robertson Cornell could result in Ms. Cornell’s disqualification unless Ms. Reed was screened and written notice was given as required in subsection (c)(2). had previously testified about his observations of the case and testified at the hearing in this matter that Ms. Reed did not have access to any additional information not already disclosed in open court. ¶12 Further, we find no support in Oklahoma case law for the rebuttable presumption that client confidences were shared. Such a position would be contrary to our Supreme Court’s admonition against a per se rule prohibiting a court’s examination of the effectiveness of a screening device for nonlawyer assistants. [B]efore being disqualified for having hired a non-lawyer employee from its opponent, the hiring firm should be given the opportunity to prove that the non-lawyer has not revealed client confidences to the new employer and has been effectively counseled and screened from doing so. If such proof is made to the court’s satisfaction, the court should deny the motion to disqualify the non-lawyer’s new firm. Hayes, 2002 OK 30, ¶25. ¶10 It is undisputed Ms. Cornell attempted to screen Ms. Reed from involvement in the Radford case, but Husband contends the screening was insufficient because Ms. Reed notarized documents filed in the case and received an email with a pretrial conference order attached. We are not persuaded by this argument. As noted by the trial court and as testified to by Ms. Reed, her role as a notary did not require her to review the substance of the documents she was notarizing. She merely attested that the signature was made by Ms. Cornell. Further, Ms. Reed’s undisputed testimony revealed she forwarded the email to the assistant responsible for the Radford case and did not perform any work on it. The rule set forth in Hayes simply requires the new firm to demonstrate the nonlawyer assistant has not shared any confidences. There is no instruction the new firm must rebut the presumption the nonlawyer assistant has in fact shared such confidences. We agree with the trial court’s conclusion that Ms. Reed was effectively screened, she did not share with her new employer any confidential information learned through her employment by the GAL, and her time was not billed to Wife. ¶11 We are similarly unpersuaded by Husband’s reliance on Texas case law to support his argument that there is a rebuttable presumption the nonlawyer assistant shared confidential information learned from prior employment. Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 834-35 (Tex. 1994). We must first note that all of the cases cited by Husband involved situations where a nonlawyer assistant went to work for a law firm representing the opposing party. That is not the situation we are faced with here. Ms. Reed did not work for Barrow & Grimm before her employment at Robertson Cornell. Rather, she was employed by the GAL’s law firm. There was no attorney-client relationship between the GAL and Husband to protect. See Rowe, supra. While GALs and other third-party neutrals may owe a duty of confidentiality, that duty is not the same as the attorney-client privilege. The GAL in this case ¶13 Ms. Cornell conceded she did not present written notice to Husband or the court regarding Ms. Reed’s employment as required by Rule 1.12(c)(2). Husband argues this failure results in automatic disqualification regardless of whether the screening was effective. We cannot agree. As set forth in Hayes, Oklahoma law rejects a per se rule prohibiting a trial court from examining the effectiveness of the screen. Hayes, 2002 OK 30, ¶25. Following a thorough evidentiary hearing, the trial court found, and we agree, the screen established by Robertson Cornell was sufficient. Further, we note Husband testified it was his review of the pleadings notarized by Ms. Reed which put him on notice of her change of employment. Such pleadings began to be filed in November 2014, some three months before the motion to disqualify was filed. Ms. Cornell was not attempting to hide the fact Ms. Reed worked for her. While we do Vol. 87 — No. 13 — 5/14/2016 The Oklahoma Bar Journal 973 not find Husband waived his right to file such a motion, the timing is certainly suspicious given the looming trial date. See Hayes, 2002 OK 30, ¶10 (noting cases “that have recognized waiver as a basis for denying motions to disqualify is the need to insure that such motions are not used for strategic purposes); 5 O.S. Ch.1 Appx. 3-A, Scope, ¶20 (“[T]he purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.”). Under the facts and circumstances of this case, including the finding an effective screen was established, failure to give written notice of the non-lawyer assistant’s new employment does not result in automatic disqualification. ¶14 The trial court’s decision to deny Husband’s motion to disqualify Wife’s counsel was supported by sufficient evidence. The trial court correctly applied Rule 1.12 of the Rules of Professional Conduct in an articulate ruling from the bench, which was specifically referenced in a later-filed written order. Accordingly, the decision of the trial court is AFFIRMED. BUETTNER, V.C.J., P.J., and GOREE, J., concur. Bay Mitchell, Judge: 1. Wife previously employed two other attorneys during the course of the litigation. 2. The parties presented conflicting testimony whether Ms. Reed solicited the email with the pre-trial conference order attached. Ms. Reed testified she simply received it without any prior notice or request and forwarded it to the other paralegal at Robertson Cornell responsible for the Radford case. Vicki Robertson, a paralegal at Barrow & Grimm, testified she called the main line at Robertson Cornell and was instructed by an unnamed individual to send the email to Ms. Reed. 3. The transcript reveals Husband’s counsel issued a subpoena requesting that the GAL and Ms. Reed turn over any notes they had from their meetings with the children. The GAL filed a motion to quash and was apparently successful in his attempt. HONORABLE OWEN T. EVANS, TRIAL JUDGE SUSTAINED Phillip P. Owens II, OWENS LAW OFFICE, PC, Oklahoma City, Oklahoma, for Petitioner James Leo Gaston Jr., ADELSON, TESTAN, BRUNDO, NOVELL & JIMENEZ, Oklahoma City, Oklahoma, for Travelers Indemnity Company of Connecticut and Respondent Crane Cartage, LLC Mark T. Hamby, Kymberly J. Watt, WIDDOWS LAW FIRM, P.C., Tulsa, Oklahoma, for Respondents William and Barbara O’Connell DEBORAH B. BARNES, JUDGE: ¶1 Petitioner Kenneth E. Soule (Claimant) appeals an Order of a three-judge panel of the Workers’ Compensation Court of Existing Claims affirming the trial court’s “Miscellaneous Order” denying Claimant’s motion to join additional parties as employers. Based on our review, we sustain. BACKGROUND ¶2 Claimant filed a Form 3 in June 2011 alleging he sustained a compensable injury “on or about” February 5, 2011, when he entered a gas station and “caught [his] leg on rack,” causing him to cut his left leg and twist his left knee. Claimant alleged this injury was suffered while he was employed as a truck driver for Wildcat Freight Inc. (Wildcat). Wildcat filed a Form 10 contesting the compensability of Claimant’s alleged injuries. Case No. 113,996. March 11, 2016 ¶3 Trial was held on July 18, 2012, on the issue of the compensability of the alleged injuries to Claimant’s left leg and knee. In addition, if the trial court found the alleged injuries to be compensable, Claimant was also requesting temporary total disability (TTD) benefits, as well as medical care and expenses. In response, Wildcat asserted at trial that “any problems in [Claimant’s] left leg or left knee are due to radiculopathy from his back or diabetic neuropathy, as well as osteoarthritis and medical to that affect.” Claimant’s counsel called two witnesses to the stand to testify: Claimant, and one of Claimant’s coworkers. Wildcat did not call any witnesses to testify. PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS ¶4 In its order filed in July 2012, the trial court rejected Wildcat’s “defense of preexisting condition which is significant enough to extinguish liability for this injury . . . .” Instead, the 2016 OK CIV APP 25 KENNETH E. SOULE, Petitioner, vs. CRANE LOGISTICS &/or JAMES CRANE &/or CRANE CARTAGE FREIGHT SYSTEMS &/ or WILLIAM & BARBARA O’CONNELL &/ or ASHTON LEASING and THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS, Respondents, and WILDCAT FREIGHT INC., Respondent, and UNKNOWN OR NOT SPECIFIED &/or TRAVELERS INDEMNITY CO. OF CONNECTICUT &/or NO INSURANCE, Insurance Carrier. 974 The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 trial court found that Claimant suffered compensable injuries to “the LEFT LEG (KNEE) arising out of and in the course of [his] employment,” specifically finding that Claimant’s “fall to a floor resulting in aggravation of a preexisting condition constitutes the major cause of [C] laimant’s injury.” Consequently, the trial court awarded Claimant “14 weeks and 1 day” of TTD benefits, from February 5, 2011, to May 15, 2011, in the total amount of $10,167.20. The court reserved the issue of additional TTD, as well as a determination of permanent disability, if any, for future hearing. The court also ordered, among other things, that Wildcat “and/or insurance carrier shall provide [Claimant] with reasonable and necessary medical care with a physician selected by [Wildcat],” and that Wildcat “and/or insurance carrier shall pay all reasonable and necessary medical expenses incurred by [C]laimant as a result of said injury.” ¶5 In August 2012, as a result of Wildcat failing to pay Claimant pursuant to the July 2012 Order, Claimant filed a Form 13 “request[ing] certification of [the] TTD Order.” In the “Judgment and Certification of Unpaid Award,” filed in October 2012, the trial court stated that “since entering [the July 2012 Order], [Wildcat] has failed to comply herewith in accordance with said Order, and defaulted in the payment of said Order . . . .” The court stated that Claimant “is hereby authorized to file certified copies of the [July 2012] Order . . . with the Court Clerk and County Clerk of any county in the State of Oklahoma, pursuant to 12 O.S. § 706,” and stated that the “Certification of Unpaid Award shall have the same force and effect as judgments of the District Court.” ¶6 Although previously represented by counsel, Claimant, in November 2012, filed pro se another Form 13, seeking to join additional parties as employers. In March 2014, after retaining new counsel, Claimant filed a brief in support of his Form 13 motion to join additional parties, asserting that although Wildcat was Claimant’s “nominal” employer, Crane Logistics and/or Crane Cartage Freight Systems (Crane Freight), rather than Wildcat, “fully directed and controlled Claimant’s employment.” He asserted that he interacted with Crane Freight’s employees throughout the relevant period, and “[t]he only thing . . . [Wildcat] appeared to have to do with his employment was issuing his paychecks.” Claimant admitted in his brief that he “brought Vol. 87 — No. 13 — 5/14/2016 this action solely against [Wildcat] and an Order was entered.” He stated: “However, [Wildcat] had no workers’ compensation coverage, and the Order has not been paid. Claimant has been forced to utilize his own medical insurance to obtain the treatment needed for his injuries.” Claimant asserted that under the applicable Workers’ Compensation statutes, Crane Freight was his “direct employer” and, on this basis, should be responsible for making benefit payments to Claimant. He further argued that Crane Freight should, at the very least, be found “secondarily liable for compensation benefits to Claimant” because Claimant’s services were a “necessary and integral” part of Crane Freight’s business. Claimant concluded his brief by stating: “Wildcat was Claimant’s immediate employer and [Crane Freight] was his primary employer. Wildcat is apparently out of business and has no workers’ compensation coverage. [Crane Freight] is secondarily liable for compensation to Claimant, and should be joined in this case.” In addition, on October 2, 2014, Claimant filed a Form 3 attempting to amend his original Form 3 to add “Crane Cartage, LLC/Crane Logistics, William and Barbara O’Connell” as employers, despite the fact that trial had occurred, and the trial court’s order awarding TTD benefits had issued, more than two years prior. ¶7 In its “Miscellaneous Order” filed on October 20, 2014, the trial court stated as follows: -1THE [C]laimant testified at JULY 18, 2012 hearing that his employer on date of injury was [Wildcat]. Claimant made no mention of any employment relationship of any type or description with the parties that he now seeks to join to this claim. -2THAT the order filed JULY 18, 2012, found [C]laimant to have been employed by [Wildcat] on date of injury of FEBRUARY 5, 2011. That order, unappealed, is final. [Wildcat] (and no other entity) has been fully and finally determined to be [C] laimant’s employer. -3THAT upon non-compliance of the order, [C]laimant secured certification of The Oklahoma Bar Journal 975 same to District Court by order filed OCTOBER 9, 2012. -4THAT [C]laimant’s NOVEMBER 30, 2012 motion to join came long after the JULY 18, 2012 and OCTOBER 9, 2012 orders were final. -5THAT this Court will not litigate issues which were not reserved at time of trial and which were completely and fully within the knowledge of the parties at time of trial. ¶8 The trial court, therefore, denied Claimant’s motion to join additional parties, after which Claimant sought review by a threejudge panel. In its Order filed on May 14, 2015, the three-judge panel affirmed the trial court’s order denying Claimant’s motion to join additional parties. ¶9 From the Order of the three-judge panel, Claimant appeals. STANDARD OF REVIEW ¶10 The issue presented on appeal — whether the trial court erred in denying Claimant’s request to join additional parties — presents a question of law. “Questions of law are reviewed by a de novo standard under which this Court has plenary, non-deferential and independent authority to determine whether lower courts have erred in their legal rulings.” Graham Pub. Sch. v. Priddy, 2014 OK 30, ¶ 8, 328 P.3d 1190 (citation omitted). ANALYSIS ¶11 The Oklahoma Supreme Court has made it clear that the “long-standing district court axiom that a single cause of action cannot be split” applies in the Workers’ Compensation Court (now, Court of Existing Claims). PFL Life Ins. Co. v. Franklin, 1998 OK 32, ¶ 20, 958 P.2d 156 (footnote omitted). In Franklin, confronted with circumstances analogous to the present case, the Supreme Court concluded that “an absent insurer’s liability, in toto or pro tanto, must be raised and litigated as a part of the same claim.” Id. The Supreme Court also stated as follows: Because Fund was not a party, and there is competent evidence to support the trial judge’s finding of PFL’s liability for tempo976 rary total disability (with medical expenses), the panel was utterly without authority gratuitously to inject into the case the allocation of liability (between PFL and a stranger to the claim). In compensation cases the issues are formed by the evidence. None of the parties raised the earlier carrier’s allocable liability. Nor could it be implied. Only one carrier stood before the court. That carrier pressed solely for imposition of the entire award against the earlier insurer. With only one carrier before it, the WCC could neither forecast, assess nor allocate the absent insurer’s responsibility. Due process prohibits a judicial tribunal from engaging in sheer liability speculations and from forecasting them to affected entities who are absent from the process whence these speculations were drawn. Id. ¶ 24 (footnotes omitted) (emphasis in original). ¶12 Similarly, in the present case, only one employer — Wildcat — was named by Claimant and present at the trial where the compensability of Claimant’s alleged injuries, and the liability for TTD benefits (and medical expenses), were determined. Neither party raised the proposed additional employers’ allocable liability at the time of trial (nor within almost two-and-a-half years after trial), and in the proceedings below Claimant pressed for relief solely against Wildcat. Thus, the trial court properly denied Claimant’s attempt to join additional employers post-judgment because the trial court is prevented from speculating as to the liability of the proposed additional employers, parties that were not present to defend themselves at trial and that were absent from the process whence such speculations might be drawn. ¶13 Further guidance is found in Retherford v. Halliburton Co., 1977 OK 178, 572 P.2d 966,1 where the appellants attempted to “characterize appellee’s two new suits as merely a subsequent attempt to recover items or elements of her damage not sought in her prior action.” Id. ¶ 5. The Supreme Court stated that Oklahoma follows “the general rule against splitting causes of action,” meaning “that a single wrong gives rise to one cause of action . . . for which only one suit may be maintained to recover all damage because of the commission of such wrong, however numerous the elements or items of damage resulting therefrom.” Id. ¶ 4. Therefore, the Supreme Court stated that “[t]he The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 pivotal issue before the Court becomes, quite simply, what is a ‘cause of action’?” Id. ¶ 9. ¶14 In the present case, it is not in dispute that the theories which Claimant is attempting to assert against the additional employers (by joinder) arise from the same cause of action already litigated at the July 2012 trial. See Black’s Law Dictionary (10th ed. 2014) (A “cause of action” is defined, in relevant part, as the underlying “group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person[.]”). In Oklahoma, a cause of action exists to satisfy the needs of plaintiffs for a means of redress, of defendants for a conceptual context within which to defend an accusation, and of the courts for a framework within which to administer justice. .... . . . [T]his jurisdiction is committed to the wrongful act or transactional definition of a “cause of action.” Thus, no matter how many “rights” of a potential plaintiff are violated in the course of a single wrong or occurrence, damages flowing therefrom must be sought in one suit or stand barred by the prior adjudication. Resolution Trust Corp. v. Greer, 1995 OK 126, ¶ 11 n.5, 911 P.2d 257 (emphasis added) (citation omitted) (quoting Retherford, ¶¶ 9, 13). ¶15 “[C]ourts favor intervention and joinder of party defendants as a convenient or pragmatic method of settling controversies relating to the same subject matter,” Brown v. Patel, 2007 OK 16, ¶ 28, 157 P.3d 117, but “the addition of parties” must be “during the pendency of that action,” Liberty Nat’l Bank and Trust Co. of Okla. City v. Garcia, 1989 OK 96, ¶ 15, 776 P.2d 1265. Joinder of a defendant “after judgment denies him the right to defend in the original action.” Id. ¶ 18 (emphasis added). “Only in extraordinary circumstances will parties be added after judgment.” Id. ¶ 20. ¶16 In Garcia, the Supreme Court concluded that “[n]o extraordinary circumstances are present in the case at bar” because the party attempting to add the additional defendant, post-judgment, “at all times knew of the existence of [the additional defendant’s] interest in the outcome, but waited until the trial court entered judgment . . . before” attempting to Vol. 87 — No. 13 — 5/14/2016 add that defendant, and, moreover, the Court determined the proposed additional defendant would be prejudiced by being added postjudgment because the addition of a party after judgment “undoubtedly” results in prejudice if that party “is unable to defend against the original plaintiff’s claim upon which his liability may depend.” Id. ¶¶ 21, 22 & 25. ¶17 In accordance with the case law discussed above, Rule 34 of the Rules of the Workers’ Compensation Court, 85 O.S. Supp. 2006, ch. 4, app., states, in pertinent part, that “[a] claimant who desires to add additional respondent(s), shall promptly amend the Form 3, and mail a copy to all parties, including the additional respondent(s) and insurance carrier(s) named.” (Emphasis added.) Here, Claimant did not attempt to amend the Form 3 to add the additional employers until October 2, 2014, more than two years after the July 2012 trial and order determining, among other things, the compensability of Claimant’s injuries. ¶18 Furthermore, Claimant does not assert he was unaware of the existence of the additional employers at the time of the July 2012 hearing or even at the time of the filing of the original Form 3 in June 2011. For example, Claimant states in his brief filed below in support of his motion to join the additional parties that he came into contact with [Wildcat] and the proposed new Respondents through answering an internet advertisement. He spoke by telephone with a person named Callie, who advised that she was an employee of Ashton Leasing, owned by William O’Connell. Claimant was told that Mr. O’Connell had created a new company called [Wildcat]. They were looking for drivers to haul … motorcycles from the Crane Freight … warehouse in Kansas City, Missouri to various dealers around the country.2 Claimant further admits he was “told [at that time] that [Crane Freight] would take the application, do the background checks, and qualify the drivers. The [Crane Freight] supervisors would make the hiring decision and complete the hiring process.” In sum, Claimant admits that he was aware that Crane Freight, rather than Wildcat, “fully directed and controlled Claimant’s employment,” and Claimant essentially argues that he should have added Crane Freight (and the other proposed employers other than Wildcat) in his original Form 3. The Oklahoma Bar Journal 977 ¶19 Claimant does assert that at the time of his hiring, he “personally asked about workers’ compensation coverage” and was “assured by the [Crane Freight] employees that workers’ compensation coverage was in place along with all other required coverages.”3 Apparently for this reason Claimant, as he admits, “brought this action solely against [Wildcat],” only to discover, apparently after trial, that “[Wildcat] had no workers’ compensation coverage . . . .” ¶20 We conclude that such circumstances, if taken as true, fail to constitute “extraordinary circumstances” necessary to add the proposed parties after judgment because the factors stressed by the Supreme Court in Garcia are still present in this case: (1) that Claimant at all times knew of the existence of the proposed employers and their potential liability, and (2) the proposed employers would be prejudiced by being added post-judgment for the same reasons set forth in Garcia. ¶21 Furthermore, even if Claimant is asserting that Wildcat, or the proposed employers, fraudulently misrepresented to Claimant that Wildcat had workers’ compensation insurance in place and that he should therefore only name Wildcat as an employer, “[a] final order by the Workers’ Compensation Court can be vacated or modified only (a) in a proceeding instituted in this court within the prescribed time interval [i.e., by a timely appeal] or (b) in a district court action where relief is sought from an award procured by extrinsic fraud.” Stidham v. Special Indem. Fund, 2000 OK 33, ¶ 7, 10 P.3d 880 (footnote omitted).4 As accurately stated by the trial court, the July 2012 Order was never appealed and became a final order. Furthermore, Claimant has not attempted to pursue an action in the district court seeking to vacate or modify the July 2012 Order on the basis that it was procured by extrinsic fraud. Therefore, even if that order was somehow “irregular or erroneous,” it cannot be treated as void because its terms were within the court’s jurisdiction. Id. ¶ 9. ¶22 Finally, because the July 2012 Order is a final order, the doctrine of claim preclusion is pertinent to our analysis. Claim preclusion “operates to bar relitigation by the parties or their privies of issues which either were or could have been litigated in a prior action which resulted in a final judgment on the merits.” Sill v. Hydrohoist Int’l, 2011 OK CIV APP 80, ¶ 12, 262 P.3d 377 (citation omitted) (footnote omitted). Pursuant to this doctrine, “a final judgment on the merits of an action precludes the 978 parties from relitigating not only the adjudicated claim but also any theories or issues that were actually decided, or could have been decided, in that action.” Id. (citation omitted). The liability of the proposed employers, whose connection to the case was known throughout the proceedings below, is clearly an issue that could have been litigated in the proceedings that resulted in the trial court’s final order of July 2012. Therefore, Claimant’s attempt to add the proposed employers — whether connected to an attempt to relitigate the issues already determined at the July 2012 trial, or whether part of an attempt to retrospectively determine the issues as they relate to the proposed employers based on liability speculation drawn from the proceedings at which the proposed employers were absent — is barred by claim preclusion. ¶23 Claimant chose to name only Wildcat as an employer, and, in violation of Workers’ Compensation Rule 34, he did not attempt to amend his Form 3 to add the additional employers until over two years after the trial and compensation order. Because the proposed employers were not parties to those proceedings, proceedings which resulted in a final order, the trial court properly determined it is without authority to join those parties — parties whose potential liability was not raised or reserved by either party at trial.5 For these and the additional reasons discussed above, we sustain the Order. CONCLUSION ¶24 Based on our review, we sustain the Order of the three-judge panel affirming the trial court’s “Miscellaneous Order” denying Claimant’s motion to join additional parties as employers. ¶25 SUSTAINED. THORNBRUGH, P.J., and RAPP, J., concur. DEBORAH B. BARNES, JUDGE: 1. Although Retherford is not a compensation case, the Supreme Court, as quoted above in Franklin, has stated that the “long-standing district court axiom that a single cause of action cannot be split” applies in the Workers’ Compensation Court (now, Court of Existing Claims). Therefore, Supreme Court cases applying this axiom in other circumstances are instructive. 2. R. at 88 (emphasis added). 3. Although not clearly stated by Claimant, we will assume for purposes of this discussion that Claimant is asserting he was told that Wildcat had adequate workers’ compensation coverage in place. 4. Although not pertinent to this case, we note that a final order may also be collaterally attacked as void based on a jurisdictional infirmity present on the face of the record. Id. 5. We note that Claimant cites to Dean’s Well Service v. Lane, 1992 OK CIV APP 126, 842 P.2d 765 (memorandum opinion), where a separate The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 Division of this Court determined that, under certain circumstances, a previously dismissed party may become liable as a secondarily liable employer to pay workers’ compensation benefits to a claimant when the primarily liable employer files for bankruptcy and the first insurance carrier proves to be non-existent. Unlike in the present case, however, in Lane the claimant timely set forth the secondarily liable employer in his Form 3 prior to trial. On appeal, this Court essentially concluded that the trial court erred as a matter of law by granting the motions of the other respondents to dismiss the secondarily liable employer from the case. Hence, the circumstances presented in Lane are entirely distinguishable from the circumstances of the present case, and the basis of the addition of the secondarily liable employer in Lane — that that party was timely added in the Form 3 as an employer but was improperly dismissed by the trial court — is absent from the present case. 2016 OK CIV APP 26 IN THE MATTER OF THE ADOPTION OF K.L.C., A MINOR CHILD: TIMOTHY JAMES METROVICH, Petitioner/Appellant, vs. VINCENT LEE COUGHRAN, Respondent/Appellee. or maintain a substantial positive relationship with K.L.C., both for a period of twelve consecutive months out of the fourteen months preceding the filing of the petition for adoption. After a hearing, the court found that Stepfather failed to meet his burden on both grounds and that K.L.C. was not eligible for adoption without Father’s consent. ¶3 Stepfather’s sole proposition of error on appeal is that he presented clear and convincing evidence showing Father willfully failed to support K.L.C.1 Title 10 O.S. 2011 §7505-4.2 provides, in pertinent part: APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA B. Consent to adoption is not required from a parent who, for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of a child . . . has willfully failed, refused, or neglected to contribute to the support of such minor: HONORABLE KURT G. GLASSCO, JUDGE ... Case No. 114,212. March 18, 2016 AFFIRMED Catherine Welsh, Jim C. McGough, WELSH & MCGOUGH, PLLC, Tulsa, Oklahoma, for Petitioner/Appellant, Brian Melton, THE LAW OFFICES OF JOHN M. DUNN, PLLC, Tulsa, Oklahoma, for Respondent/Appellee, Angela N. Monroe, OFFICE OF THE PUBLIC DEFENDER, Tulsa, Oklahoma, for the Minor Child. Bay Mitchell, Judge: ¶1 Petitioner/Appellant Timothy James Metrovich (Stepfather) appeals from an order denying his petition to adopt minor child K.L.C. without the consent of K.L.C.’s natural father, Respondent/Appellee Vincent Lee Coughran (Father). We find Stepfather failed to present clear and convincing evidence that Father willfully failed to contribute to K.L.C.’s support for twelve consecutive months out of the last fourteen months immediately preceding the filing of the petition for adoption. ¶2 Stepfather filed a petition to adopt his stepdaughter, K.L.C., and an application for an order determining K.L.C. eligible for adoption without Father’s consent on January 13, 2015. The application alleged Father’s consent was not needed for the adoption because he had (1) willfully failed to contribute to the support of K.L.C. and (2) willfully failed to establish and/ Vol. 87 — No. 13 — 5/14/2016 2. According to such parent’s financial ability to contribute to such minor’s support if no provision for support is provided in an order. The issue of willfulness is a question of fact. In re Adoption of D.L.A., 2003 OK CIV APP 7, ¶4, 62 P.3d 796, 798 (citation omitted). The burden was on Stepfather to present clear and convincing evidence to prove Father willfully failed to support K.L.C. In re Adoption of C.D.M., 2001 OK 103, ¶13, 39 P.3d 802, 807. On appeal, we review the record to determine whether Stepfather presented clear and convincing evidence and whether the trial court’s findings are contrary to such clear and convincing evidence.2 ¶4 Stepfather notes that Father was gainfully employed during the relevant time period and that Father knew where Natural Mother worked and where her parents lived, yet Father never sent Mother any money. Despite these facts, we find the trial court did not err when it found Stepfather failed to meet his burden. Father filed a petition to establish paternity, asking the court to determine paternity, set visitation, and establish child support payments, two and a half months prior to the filing of Stepfather’s petition for adoption.3 This demonstrates Father’s willingness to provide support. See In re Adoption of D.L.A., 2003 OK CIV APP 7, ¶16, 62 P.3d at 800. Father also testified he purchased gifts for K.L.C. and set aside money for her support, but when he contacted The Oklahoma Bar Journal 979 Mother to discuss visitation and support, he received no response. Although Stepfather and Mother testified that Father did not contact her regarding support, “[t]he trial court is entitled to choose which testimony to believe as the judge has the advantage over this Court in observing the behavior and demeanor of the witnesses.” Mueggenborg v. Walling, 1992 OK 121, ¶7, 836 P.2d 112, 114. ¶5 Upon review of the record, we find the trial court properly determined that Stepfather failed to show, by clear and convincing evidence, that Father had willfully failed to support K.L.C. The order denying Stepfather’s petition to adopt without Father’s consent is AFFIRMED. BUETTNER, V.C.J., P.J., and GOREE, J., concur. Bay Mitchell, Judge: 1. Stepfather did not appeal the court’s finding that he failed to show Father willfully failed to establish or maintain a relationship with K.L.C. 2. Appeals in these types of cases typically stem from the court’s ordering an adoption without consent. In those cases, the standard of review has been clearly articulated: “The decision of the trial court will not be disturbed unless it fails to rest on clear and convincing evidence.” In re Adoption of C.D.M., 2001 OK 103, ¶13, 39 P.3d at 807 (footnote omitted). In cases like the one at hand, in which the trial court denies the application to adopt without consent, application of that review standard is illogical, if not nonsensical. Applying that standard here would require a determination that there was clear and convincing evidence that there was no clear and convincing evidence establishing the statutory ground for finding the child eligible for adoption without Father’s consent. 3. The paternity action, filed in Wagoner County, was transferred to Tulsa County upon Stepfather’s motion to intervene and Stepfather and Mother’s joint motion to transfer and was consolidated with the adoption proceedings. 2016 OK CIV APP 27 THE KEY FINANCE, INC., Plaintiff/ Counter-Defendant/Appellee, vs. DJ KOON, Defendant/Counter-Plaintiff/Appellant. Case No. 112,853. October 6, 2015 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE THOMAS E. PRINCE, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Mark K. Stonecipher, FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, P.C., Oklahoma City, Oklahoma, for Plaintiff/Counter-Defendant/Appellee M. Kathi Rawls, Minal Gahlot, RAWLS LAW OFFICE, PLLC, Moore, Oklahoma, for Defendant/Counter-Plaintiff/Appellant 980 JERRY L. GOODMAN, VICE-CHIEF JUDGE: ¶1 DJ Koon (Koon) appeals an April 16, 2014, order granting Key Finance, Inc.’s (Key) motion for directed verdict and motion to compel arbitration. Based upon our review of the record and applicable law, we reverse and remand for further proceedings consistent with this opinion. BACKGROUND ¶2 Koon purchased a 2005 Nissan Sentra from The Key, Inc. d/b/a The Key Cars (Key Cars) on July 14, 2012. To purchase the vehicle, Koon executed a Purchase Agreement, a Motor Vehicle Retail Installment Sales Contract, and an Arbitration Agreement as well as financing with Key. The Arbitration Agreement provides “ARBITRATION AGREEMENT,” and “This Arbitration Agreement significantly affects your rights in any dispute with us. Please read this Arbitration Agreement carefully before you sign it.” ¶3 Koon subsequently defaulted on his loan with Key. Key repossessed the vehicle, sold it, and on June 28, 2013, filed suit to collect on the deficiency owed. Koon answered and counterclaimed for violation of the Uniform Commercial Code, Oklahoma Consumer Protection Act, Federal Odometer Act, Oklahoma Vehicle License and Registration Act, inter alia, and seeking to certify a class action. ¶4 On October 11, 2013, Key filed a motion to dismiss and motion to compel arbitration. Koon objected, requesting a hearing on the motion to compel arbitration, asserting lack of assent, fraud, waiver, and unconscionability. Koon contended, inter alia, Key’s agent falsely explained the Arbitration Agreement to him, stating it awarded an attorney’s fee to Key if Koon defaulted on payments and litigation was necessary. In addition, Koon asserted that neither the Purchase Agreement nor Retail Installment Sales Contract contained an arbitration agreement. The Retail Installment Sales Contract did, however, contain an acknowledgement that provides: “If checked, I acknowledge that you and I have signed a separate arbitration agreement. That agreement is hereby attached and the terms are incorporated into the terms of this contract.” Koon noted the box was not checked. Thus, Koon maintained assent was lacking. ¶5 The trial court ultimately granted Key’s motion to compel arbitration by order entered The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 on January 22, 2014, stating “[a]ll claims asserted in this action by the parties are hereby compelled to be pursued in a binding arbitration….” On February 3, 2014, Koon filed a motion to reconsider, asserting fraud, lack of assent, and waiver. The trial court granted the motion and ordered the parties to appear for an evidentiary hearing on the “limited issue of whether [Key’s] agent conveyed a false impression to [Koon] with respect to the arbitration agreement….” submit a particular dispute to arbitration.” KWD River City Invs., L.P. v. Ross Dress for Less, Inc., 2012 OK 76, ¶ 3, 288 P.3d 929, 930. “Generally, the existence of an agreement to arbitrate is a question of law to be reviewed by a de novo standard.” Bruner v. Timberlane Manor Ltd. P’ship, 2006 OK 90, ¶ 8, 155 P.3d 16, 20. We also review de novo “an order granting or denying a motion to compel arbitration.” Thompson v. Bar-S Foods Co., 2007 OK 75, ¶ 9, 174 P.3d 567, 572. ¶6 A hearing was held on April 10, 2014. Koon testified Key’s agent explained the Arbitration Agreement to him by stating that if Koon took legal action and lost or Key was required to undertake legal action, Koon would be responsible for its attorney’s fee. Koon stated the agent never mentioned it was an arbitration agreement or that the document limited his rights to court. After Koon testified, the trial court granted Key’s motion for directed verdict, finding Key’s agent did not convey a false impression to Koon regarding the Arbitration Agreement. By order entered on April 16, 2014, the trial court stayed the action pending the completion of binding arbitration. Koon appeals. ANALYSIS STANDARD OF REVIEW ¶7 A motion for directed verdict presents “the question of whether there is any evidence to support a judgment for the party against whom the motion is made.” Woods v. Fruehauf Trailer Corp., 1988 OK 105, ¶ 8, 765 P.2d 770, 773. In ruling on such a motion, a trial court must consider as true all the evidence and all the inferences reasonably drawn therefrom that are favorable to the party opposing the motion. Id. “[A]ny conflicting evidence favorable to the movant must be disregarded.” Id. [A] motion for a directed verdict should be denied when there is a controverted question of fact as to which reasonable minds could differ. The motion should be granted, however, if the party opposing the motion has failed to demonstrate a prima facie case for recovery. Guthrie v. Independent Sch. Dist. No. I-30 of Adair Cty., 1998 OK CIV APP 47, ¶ 10, 958 P.2d 802, 804 (citations omitted). This Court’s standard of review of a trial court’s grant of a directed verdict is de novo. Computer Pub’s, Inc. v. Welton, 2002 OK 50, ¶ 6, 49 P.3d 732, 735. ¶8 With respect to arbitration, “[t]he court must determine whether the parties agreed to Vol. 87 — No. 13 — 5/14/2016 ¶9 Koon asserts several propositions of error on appeal. However, Koon has only appealed the April 16, 2014, order. Accordingly, this appeal is limited to: 1) whether the trial court properly granted Key’s motion for directed verdict, finding there was no fraud in the inducement of the Arbitration Agreement; and 2) whether the trial court therefore properly granted Key’s motion to compel arbitration. ¶10 “The [Federal Arbitration Act] [“FAA”] applies to contracts affecting interstate commerce. 9 U.S.C.A. § 1 (2000).” Rogers, 2005 OK 51, ¶ 11, 138 P.3d 826, 829. “The FAA reflects the fundamental principle that arbitration is a matter of contract.” Rent-A-Center, W, Inc. v. Jackson, 561 U.S. 63, 67 (2010). “The FAA thereby places arbitration agreements on an equal footing with other contracts … and requires courts to enforce them according to their terms.” Id. (citations omitted). “Like other contracts, however, they may be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability.’” Id. at 68 (quoting Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996)). The FAA “is a congressional declaration of a liberal federal policy favoring arbitration agreements.” Continental Cas. Co. v. Am. Nat’l Ins. Co., 417 F.3d 727, 73031 (7th Cir. 2005) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983)). “[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Id. ¶11 Title 9 U.S.C.A. § 2 provides: A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, The Oklahoma Bar Journal 981 shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. ¶12 In Rent-A-Center, the United States Supreme Court explained: There are two types of validity challenges under § 2. “One type challenges specifically the validity of the agreement to arbitrate,” and “[t]he other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract’s provisions renders the whole contract invalid.” Buckeye, 546 U.S., at 444, 126 S.Ct. 1204. In a line of cases neither party has asked us to overrule, we held that only the first type of challenge is relevant to a court’s determination whether the arbitration agreement at issue is enforceable. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Buckeye, supra, at 444446, 126 S.Ct. 1204; Preston v. Ferrer, 552 U.S. 346, 353-354, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008). That is because 9 U.S.C.A. 2 states that a “written provision” “to settle by arbitration a controversy” is “valid, irrevocable, and enforceable” without mention of the validity of the contract in which it is contained. Thus, a party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate. “[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.” Buckeye, 546 U.S., at 445, 126 S.Ct. 1204; see also id., at 447, 126 S.Ct. 1204 (the severability rule is based on 9 U.S.C.A. 2). Id. at 70-71. ¶13 The elements of actionable fraud are: (1) a material misrepresentation; (2) known to be false at the time made; (3) made with specific intent that a party would rely on it; and (4) reliance and resulting damage. Bowman v. Presley, 2009 OK 48, ¶ 13, 212 P.3d 1210, 1218. Fraud is divided into actual fraud and constructive fraud. Patel v. OMH Med. Ctr., Inc., 1999 OK 33, ¶ 34, 987 P.2d 1185, 1199 (citations omitted). Actual fraud requires the intentional misrepresentation or concealment of a material fact which substantially affects another person. Faulkenberry v. Kansas City Southern Railway Co., 982 1979 OK 142, ¶ 4, 602 P.2d 203, 206. Constructive fraud is a breach of either a legal or equitable duty that does not necessarily involve any moral guilt, intent to deceive, or actual dishonesty of purpose. Id. It may be defined as any breach of a duty which, regardless of the actor’s intent, gains an advantage for the actor by misleading another to his prejudice. Patel, at ¶ 34, 987 P.2d at 1199. Where a party has a duty to speak, but remains silent, there may be constructive fraud. Evers v. FSF Overlake Assocs., 2003 OK 53, ¶ 16 fn.3, 77 P.3d 581, 587 fn.3 (citations omitted). ¶14 In Deardorf v. Rosenbusch, 1949 OK 117, ¶ 8, 206 P.2d 996, 998, the Oklahoma Supreme Court held: A duty to speak may arise from partial disclosure, the speaker being under a duty to say nothing or to tell the whole truth. One conveying a false impression by the disclosure of some facts and the concealment of others is guilty of fraud, even though his statement is true as far as it goes, since such concealment is in effect a false representation that what is disclosed is the whole truth. “In determining whether there is a duty to speak, consideration must be given to the situation of the parties and matters with which they are dealing.” Silk v. Phillips Pet. Co., 1988 OK 93, ¶33, 760 P.2d 174, 179. “If on account of peculiar circumstances there is a positive duty on the part of one of the parties to a contract to speak, and he remains silent to his benefit and to the detriment of the other party, the failure to speak constitutes fraud.” Id. ¶15 In the present case, Koon asserted that Key’s agent affirmatively represented the following about the document he was signing: 1) if they had to sue, Koon would be responsible for their attorney’s fee and all costs of their attorney; 2) that “if I took legal action against them and lost, I’d have to pay their attorneys[‘] fees;” 3) after Koon hesitated in signing the document, Key’s agent told him he had to sign the document if he wanted to buy the car; and 4) that Key’s agent never told him that the Arbitration Agreement meant he was giving up his rights to court. ¶16 Viewing as true “all evidence favorable to [Koon] and all reasonable inferences drawn therefrom, and disregarding all evidence favorable to [Key],” we must reverse the trial court’s grant of Key’s motion for directed verdict. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 Computer Pub’s, Inc. v. Welton, 2002 OK 50, ¶ 6, 49 P.3d 732, 735. Koon has presented evidence that Key’s agent owed him a duty of full disclosure because the agent chose to speak regarding the Arbitration Agreement. The fact that this is an arbitration agreement is clearly a material fact. However, silence as to a material fact is not necessarily, as a matter of law, equivalent to a false representation; there must have been an obligation to speak. Key’s agent’s partial disclosure or representation to Koon conveyed a false impression of the purpose and content of the document he signed, i.e., stating the document awarded an attorney’s fee to Key if Koon defaulted on payments and litigation was necessary. As a result, a duty to speak arose, “the speaker being under a duty to say nothing or to tell the whole truth.” Deardorf, 1949 OK 117, at ¶ 8, 206 P.2d at 998. Although there is no evidence Koon is illiterate, that he was prevented from reading the document, or that the agent’s statements were necessarily untrue, “one conveying a false impression by the disclosures of some facts and the concealment of others is guilty of fraud . . . since concealment is in effect a false representation that what is disclosed is the whole truth.” Uptegraft v. Dome Pet. Corp., 1988 OK 129, ¶ 10, 764 P.2d 1350, 1353. Accordingly, the trial court erred in granting Key’s motion for directed verdict. CONCLUSION ¶17 The trial court’s April 16, 2014, order compelling arbitration upon the granting of a directed verdict finding no fraud in the inducement of the Arbitration Agreement is therefore in error and is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. ¶18 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. FISCHER, P.J., and WISEMAN, J., concur. 2016 OK CIV APP 28 SHERRINE LYNN O’BRIEN, Petitioner/ Appellee, vs. CHRIS ALLEN BERRY, Defendant/Appellant. Case No. 113,216. March 28, 2016 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY, OKLAHOMA HONORABLE DAWSON ENGLE, TRIAL JUDGE Vol. 87 — No. 13 — 5/14/2016 AFFIRMED James J. Hodgens, JAMES J. HODGENS, PC, Stroud, Oklahoma, for Petitioner/Appellee Joseph M. Vorndran, George Wright, STUART & CLOVER, PLLC, Shawnee, Oklahoma, for Defendant/Appellant JOHN F. FISCHER, JUDGE: ¶1 Chris Allen Berry appeals an order of protection issued pursuant to the Protection from Domestic Abuse Act, 22 O.S.2011 & Supp. 2013 §§ 60 to 60.20, in favor of Sherrine Lynn O’Brien. Berry argues that O’Brien failed to prove an act of domestic abuse required to obtain an order of protection, that the district court erred in refusing to admit certain exhibits he offered during the trial and the district court’s order is precluded by a ruling in his favor on the same matter issued by the tribal court in which O’Brien first filed for a protective order. Berry has failed to show an abuse of discretion by the district court, and we affirm. BACKGROUND ¶2 O’Brien and Berry had been living together for approximately fourteen months in what the district court described as a “domestic intimate relationship.” On the morning of July 20, 2014, the parties were involved in a physical altercation, one of several during the time the parties were together. O’Brien left Berry’s home after the altercation and stayed in lodging provided by the House of Hope. She moved out of Berry’s home the following day. ¶3 O’Brien filed an application for a protective order in the District Court of the Citizen Potawatomi Nation on July 25, 2014. A “show cause” hearing was held four days later. At the conclusion of that hearing, the tribal judge declined to issue an emergency protective order and set the matter for trial on August 26, 2014. O’Brien voluntarily dismissed her tribal court action on August 5, 2014. ¶4 On August 11, 2014, O’Brien filed this action. The matter was tried and district court found that O’Brien had met her burden of proof. Berry appeals the protective order issued on that date.1 STANDARD OF REVIEW ¶5 Orders issued pursuant to proceedings invoking the Protection from Domestic Abuse Act are reviewed for an abuse of discretion. Curry v. Streater, 2009 OK 5, 213 P.3d 550. The Oklahoma Bar Journal 983 Under an abuse of discretion standard, the appellate court examines the evidence in the record and reverses only if the trial court’s decision is clearly against the evidence or is contrary to a governing principle of law. State ex rel. Tal v. Oklahoma City, 2002 OK 97, ¶ 3, 61 P.3d 234, 240. To reverse under an abuse of discretion standard, an appellate court must find the trial court’s conclusions and judgment were clearly erroneous, against reason and evidence. Oklahoma Tpk. Auth. v. Little, 1993 OK 116, ¶ 6, 860 P.2d 226, 228. Id. ¶ 8. ANALYSIS ¶6 The evidence produced at trial was conflicting. O’Brien testified that on the morning of July 20, she was at home after working the night shift at the casino where she was employed as a security guard. She had a couple of drinks before Berry returned home from the night shift he worked as a police officer for the Citizen Potawatomi Nation. They had one drink together, and then O’Brien went to bed. She testified that she woke up because Berry was screaming her name. She realized he was very angry, so she pretended she was still asleep. According to O’Brien, Berry threw her out of the bed, dragged her to the bathroom skinning her knees, stood on her foot cutting her ankle, put her in the shower and turned on the cold water. When she attempted to leave the house, Berry blocked her path and choked her, causing bruising to her throat and chest. Eventually, Berry called neighbors, who took O’Brien, at her request, to the casino where she worked. O’Brien also testified that she filed a police report regarding the incident and, after she moved out, Berry had come to her place of work and stood nearby trying to intimidate her. ¶7 Berry appeared pro se at the hearing. He testified that after he and O’Brien had one drink together, she went to the bedroom, where he found her lying on the floor next to the bed and unresponsive. Berry testified that he believed O’Brien was having a reaction to the antidepressant medication she was taking, which was brought on by her “heavy drinking,” and that she might have “poisoned herself.” He claimed he tried to revive her, and when he was not successful he put her in the shower and then phoned the sheriff’s department, but the department would not send over a deputy. However, Berry’s testimony also re984 vealed that he informed the sheriff’s department that he “had a domestic situation,” and did not mention any medical emergency involving O’Brien. Based on the information Berry provided during that phone call, the sheriff’s department advised him “to go get an eviction notice.” On cross-examination, Berry testified that he did not call 911, contrary to his training as a “first responder.” He testified that when O’Brien “finally came to” she started screaming that she wanted to leave. He called the next door neighbors, who came to his home and took O’Brien with them. ¶8 Both neighbors and Berry’s son also testified. These witnesses generally supported some aspects of Berry’s version of the incident. They also supported aspects of O’Brien’s testimony, including the injury to her knees. However, because none of these witnesses had any personal knowledge of the actual altercation between O’Brien and Berry, they were not able to testify regarding any details of the incident. The district court found that O’Brien had “met her burden of proof” and granted her request for a protective order. I. What Constitutes Domestic Abuse ¶9 Berry’s appeal raises various arguments. He argues that O’Brien failed to prove by “clear and convincing evidence” that she was physically harmed. Berry has not cited any authority supporting his contention that O’Brien was required to prove domestic abuse by clear and convincing evidence. We find nothing in the Protection from Domestic Abuse Act, or any case interpreting the Act, imposing this heightened burden of proof on O’Brien. The focus of Berry’s argument, however, is on the evidence required to prove “domestic abuse,” and raises an issue not previously decided: What constitutes domestic abuse resulting from physical harm for purposes of the Protection from Domestic Abuse Act?2 As relevant to this case, “domestic abuse” is defined as “any act of physical harm . . . which is committed by an adult . . . against another adult . . . who are or were in a dating relationship.” 22 O.S.2011 § 60.1(1). “A victim of domestic abuse . . . may seek relief under the provisions of the Protection from Domestic Abuse Act.” 22 O.S. Supp. 2013 § 60.2. A. Evidence Necessary to Prove Physical Harm ¶10 Berry argues that this Court has previously declined to define “physical harm” as The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 that term is used in the Act. See Marquette v. Marquette, 1984 OK CIV APP 25, 686 P.2d 990 (holding the Act is civil, not criminal in nature and refusing to adopt the beyond-a-reasonable-doubt burden of proof applicable in criminal cases). Berry’s reliance on Marquette is misplaced for two reasons. First, the Marquette Court did not refuse to define “physical harm.” It merely refused to adopt a “’blood and guts’ interpretation” of the statutory language. Id. ¶ 12. Second, the version of the statute at issue in Marquette differs from the version of the statute applicable in this case. No longer is a plaintiff required to prove “serious physical harm” in order to obtain an order of protection, as was required when Marquette was decided. See 22 O.S. Supp. 1983 § 60.1. An order of protection is now authorized on proof of “any act of physical harm.” 22 O.S.2011 § 60.1(1). ¶11 Berry relies on photographs taken of O’Brien the day of the incident.3 He contends these photographs show minimal injuries to O’Brien. It does not matter that O’Brien received only “minor injuries” as Berry contends. Berry engaged in domestic abuse if he caused “any act of physical harm.” The fact that the Legislature amended the Protection from Domestic Abuse Act to delete the requirement for proof of “serious injury” fully addresses Berry’s argument. Where, as here, the Legislature amends a statute that “expresses a clear and unambiguous intent . . . [the] legislative amendment is presumed to change the existing law.” Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d 302. Pursuant to the applicable statute in this case, domestic abuse is shown by evidence of “any act of physical harm” whether or not the perpetrator deems the harm serious. B. Intent to Harm ¶12 Next, Berry argues that even though O’Brien might have suffered some physical harm, he did not intend to harm her, and any harm she sustained was either self-inflicted or incidental to his efforts to revive her when he found her unresponsive. He contends we should adopt the tort of battery definition of intent or the “willful” and “unlawful” use of force or violence elements required to prove the crime of domestic abuse. See 21 O.S.2011 § 644(C) and Oklahoma Uniform Jury Instructions - [OUJI] Criminal No. 4-26A. The Protection from Domestic Abuse Act authorizes an order of protection on proof of: (1) domestic abuse, (2) stalking or (3) harassment. “Stalking” and “harassment” are both defined in the Vol. 87 — No. 13 — 5/14/2016 Act in terms of willful, malicious and knowing conduct. 22 O.S.2011 § 60.1(2) and (3). No similar language appears in the definition of domestic abuse. Nonetheless, we find that the Act requires some element of intent. ¶13 First, we note that the Supreme Court reached this conclusion in determining “the elements of domestic abuse by threat of imminent harm under the Act.” Curry v. Streater, 2009 OK 5, ¶ 14. The Court found that “[a] threat is ‘[a]n expression of an intention to inflict’ . . . imminent physical harm” or a ‘communicated intent to inflict physical or other harm on any person or on property.’” Id. ¶ 15 (quoting American Heritage Dictionary 1265 (2nd coll. ed. 1976), and Black’s Law Dictionary 1327 (5th ed. 1979)). It would be absurd to require proof of intent to threaten harm but not proof of intent to actually physically harm, particularly when those two actions appear in the same definition of domestic abuse. See Ledbetter v. Okla. Alcoholic Beverage Laws Enforcement Comm’n, 1988 OK 117, ¶ 7, 764 P.2d 172 (statutory construction that would lead to an absurdity must be avoided). Further, exempting acts of physical harm from the intent required to prove all other acts authorizing an order of protection (i.e., threats of harm, stalking and harassment) is antithetical to a consistent construction of the Act. See Okla. Ass’n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶ 5, 901 P.2d 800 (legislative intent is ascertained from the whole act based on its general purpose and objective and construing relevant provisions together to give full force and effect to each). ¶14 In the absence of a statutory definition, we look to the ordinary meaning of the phrase “any act of physical harm” as did the Supreme Court in Curry. As relevant here, an “act” is “the process of doing or performing” or “the external manifestation of [a person’s] will.” Black’s Law Dictionary 24-25 (7th ed. 1999). For context, we look to the meaning of “abuse,” which is also defined as an intentional act, e.g., “[p]hysical or mental maltreatment.” Id. at 10. We find that the element of intent required in cases of civil battery best defines the level of intent required to prove an act of domestic abuse. “A person intends to commit a battery if [he/she] acts for the purpose of making a [harmful/offensive] contact with another.” OUJI-Civil No. 19.8. The Oklahoma Bar Journal C. O’Brien’s Physical Harm 985 ¶15 Berry did not object when O’Brien introduced photographs of her injuries taken three days after the incident. Berry did not include the photographs O’Brien introduced in this appellate record. However, the transcript of O’Brien’s trial testimony reflects her description of injuries to her arm, chest, throat, ankle and knees as depicted by those photographs. Therefore, we must assume O’Brien’s photographic exhibits are representative of the injuries O’Brien described during her trial testimony. “The appellant bears the total responsibility for including in the appellate record all materials necessary to secure corrective relief.” Hamid v. Sew Original, 1982 OK 46, ¶ 6, 645 P.2d 496. The injuries O’Brien described are consistent with her version of the altercation and the physical harm Berry inflicted. Even the photographs that Berry claims the district court erroneously excluded confirm injury to O’Brien’s knees, ankle and throat. ¶16 Nonetheless, Berry argues that the injuries O’Brien described are consistent with his claim that her injuries resulted from an accidental slip and fall on the linoleum floor as she was running from the shower, or were incidental to his efforts to revive her. Berry argues that the “question before this Court is whether [O’Brien] established that she was subjected to domestic abuse through physical harm by Berry.” That is not the question. We may not re-weigh the evidence or substitute our findings for those of the district court. Curry v. Streater, 2009 OK 5, ¶ 17. The issue of Berry’s intent regarding his physical contact with O’Brien on July 20, 2014, was squarely before the district court. Although the testimony of O’Brien and Berry differed regarding how O’Brien’s injuries occurred, the rule is “well established” that the district court was in the best position to determine their credibility. Taylor v. Taylor, 1963 OK 263, ¶ 15, 387 P.2d 648. After hearing the testimony of all the witnesses and viewing all of the evidence, the district court granted O’Brien’s request for a protective order. We have reviewed the evidence in the appellate record and find that the district court’s conclusion that Berry committed domestic abuse is not “clearly erroneous, [or] against reason and evidence.” Oklahoma Tpk. Auth. v. Little, 1993 OK 116, ¶ 6.4 II. The Preclusion Argument ¶17 Berry asserts in his final argument that the district court’s order is precluded by the favorable ruling he obtained in the Citizen 986 Potawatomi Nation District Court. Relying on the doctrine of issue preclusion, he contends that O’Brien actually litigated her entitlement to a protective order in tribal court and therefore was barred from relitigating that issue here. “[O]nce a court has decided an issue of fact or law necessary to its judgment, the same parties or their privies may not relitigate that issue in a suit brought upon a different claim.” State ex rel. Oklahoma Bar Ass’n v. Giger, 2004 OK 43, ¶ 13, 93 P.3d 32 (footnote omitted). Clearly, the injuries O’Brien received on July 20, 2014, were the subject of her Petition for Protective Order filed in the tribal court. However, that petition sought to invoke the protection of the Violence Against Women Act, 18 U.S.C. § 2265. Berry has not shown that the federal law and Oklahoma’s Protection from Domestic Abuse Act are sufficiently identical, requiring a finding that the legal issues O’Brien raised in the district court were “actually adjudicated” in tribal court. Carris v. John R. Thomas and Assocs., P.C., 1995 OK 33, ¶ 11, 896 P.2d 522. ¶18 Further, Berry mischaracterizes the effect of the tribal court’s ruling as declining to grant O’Brien a protective order “on the merits.” The tribal court heard evidence at a “show cause” hearing conducted on July 29, 2014. At the conclusion of that hearing, the tribal court denied what Berry described as O’Brien’s request for an emergency protective order, and then set the matter for “an evidentiary hearing” on August 26, 2014. Although there need not be a final judgment on the merits of the case for issue preclusion to apply, there must be “a final determination of a material issue common to both cases.” Giger, 2004 OK 43, ¶ 13 (footnote omitted). Berry has not shown, as is his burden, that the tribal court’s ruling determined the action, prevented a judgment in favor of O’Brien or possessed the finality required to invoke issue preclusion. Cf., Nat’l Diversified Bus. Servs., Inc. v. Corporate Fin. Opportunities, Inc., 1997 OK 36, ¶ 13, 946 P.2d 662 (final order as defined in 12 O.S.2011 § 953 will preclude relitigation of issues encompassed in that order). In fact, it is apparent from this limited record that, at the show cause hearing in the tribal court proceeding, no final determination was made on O’Brien’s ultimate entitlement to a protective order. And it is undisputed that O’Brien dismissed her tribal court action before that final determination could be made at the later scheduled evidentiary hearing. Absent a final determination of the right to a protective order, O’Brien was “free to abandon the course The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 then in pursuit [and] to relaunch or press the same claim along a different remedial track.” Id. That is the course of action she chose. Appellate Practice CONCLUSION ¶19 The applicable version of the Protection from Domestic Abuse Act requires proof of “any act of physical harm” to establish domestic abuse. The seriousness of the injury or harm is not the determining factor. However, the defendant must act for the purpose of making the harmful contact. The district court’s conclusion that Berry did so in this case is not against the clear weight of evidence in this record and does not constitute an abuse of discretion. Further, Berry has not demonstrated that the district court’s protective order was precluded by the proceedings in the Citizen Potawatomi Nation District Court. The district court’s August 21, 2014 Order of Protection is affirmed. Upcoming speakers: May 16th D. Kent Meyers, Esq. June 6th Darla Jackson, Esq. July 18th Gina Hendryx, General Counsel August 15th Michael Richie, Clerk ¶20 AFFIRMED. GOODMAN, C.J., and WISEMAN, P.J., concur. Regarding the Initiative Petition in 2016 OK 1. (1/0) Digital legal research update, with Jim Calloway. (1/0) Ethics in appeals. (1/1) How to designate a civil appellate record. (1/0) September 19th Ricki Waltersheid, OIDS Procedural anomalies in Criminal Appeals. (1/0) JOHN F. FISCHER, JUDGE: 1. O’Brien did not appear or file an answer brief in this appeal. “Where there is an unexcused failure to file an answer brief, this Court is under no duty to search the record for some theory to sustain the trial court judgment; and where the brief in chief is reasonably supportive of the allegations of error, this Court will ordinarily reverse the appealed judgment with appropriate directions.” Cooper v. Cooper, 1980 OK 128, ¶ 6, 616 P.2d 1154; Okla. Sup. Ct. R. 1.10, 12 O.S. Supp. 2013, ch. 15, app. 1. However, “[r]eversal is never automatic on a party’s failure to file an answer brief.” Enochs v. Martin Props., Inc., 1997 OK 132, ¶ 6, 954 P.2d 124 (footnote omitted). If “the record presented fails to support the error alleged in the brief of the party who lost below, the decision to be reviewed cannot be disturbed. It is presumed correct until the contrary is shown by the record.” Id. For the reasons stated in this Opinion, we find that Berry has failed to show that the district court’s order of protection was incorrect. 2. In Curry v. Streater, 2009 OK 5, 213 P.3d 550, the Supreme Court construed the provision of the Protection from Domestic Abuse Act concerned with the aspect of the definition of domestic abuse resulting from “threats of imminent physical harm.” 22 O.S.2011 § 60.1(1). The basis of the district court’s order of protection in this case was the finding of actual “physical harm,” the second aspect of the definition of domestic abuse. Id. 3. Berry offered these exhibits during his case in chief but did not lay the foundation necessary to authenticate the photographs, and the district court sustained O’Brien’s objection “at this time.” Berry also offered a copy of what he claimed to be the “warning label” on medication O’Brien had been prescribed. Admission of this exhibit was also denied for lack of a foundation. Berry made no effort thereafter to correct the lack-of-foundation issue regarding these exhibits or properly authenticate either exhibit. The district court admitted all the other exhibits Berry offered at the hearing. Berry now argues that the district court erred in refusing to admit his warning label and photograph exhibits. Absent a showing that the exclusion of these exhibits affected a “substantial right” or was so prejudicial that it resulted in a “different” outcome, Berry cannot prevail on this issue. See State ex rel. Dep’t of Transp. v. Caliber Dev. Co., LLC, 2016 OK CIV APP 1, ¶¶ 23; 24, ___ P.3d ___ (approved for publication by the Supreme Court). Berry has made no such showing. See Funnell v. Jones, 1985 OK 73, ¶ 4, 737 P.2d 105 (pro se litigants are generally held to the same standards as an attorney). 4. For this reason, we also find that Berry is not entitled to a “good Samaritan” or “rescue doctrine” defense. Vol. 87 — No. 13 — 5/14/2016 11:30 AM October 17th Judge Gary Lumpkin Appellate procedure and the Court of Criminal Appeals. (1/0) November 3rd Annual Meeting in OKC Harvey Ellis, Mark Grossman, Clyde Muchmore and paralegal Cathy Johnson. The authors of West’s Appellate Procedure treatise will address the nuts and bolts of making an appeal, for the novice. (3/0) December 12th Justice John Reif, Judge Brian Goree, Referee Barbara Swimley, and Rex Travis. An amicus curiae panel discussion: how are they prepared, reviewed and received. (1/0) Our monthly meetings are held in both OBA’s Room 131, and in the Room 2205 of the Main Classroom Building, OSU/Tulsa, by simulcast. Lunch provided to Section Members. Non-members are charged $10 for lunch. RSVP The Oklahoma Bar Journal Mark Koss, chair [email protected] 987 Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, April 13, 2016 F-2015-482 — On January 9, 2013 Terri Lee Frasier, Appellant, entered pleas of guilty in the District Court of Carter County, Case Nos. CF-2012-292 and CF-2012-329, to Driving a Motor Vehicle While Under the Influence of Alcohol and/or Drugs. Frazier was sentenced to concurrent terms of five years imprisonment on each case with all but he first year suspended, and a $1,500.00 fine. On August 25, 2014, Frasier was charged in the District Court of Carter County, Case No. CF-2014-484, with Actual Physical Control of a Vehicle While Under the Influence. That same day the State filed a Motion to Vacate Frazier’s suspended sentences. On March 31, 2015, Frasier’s nonjury trial in CF-2014-484 was combined with her hearing on the motions to revoke in CF2012-292 and CF-2012-329. The Honorable Thomas K. Baldwin, who presided at trial, found Frasier guilty in CF-2014-484, and found the evidence sufficient to prove she violated the terms of her probation in the other two cases. Judge Baldwin sentenced her to seven years imprisonment and a $1,500.00 fine in CF-2014-484, and her suspended sentences in the other two cases were revoked in full. Judge Baldwin further ordered the sentence in CF-2014484 to be served consecutively to the sentences in CF-2012-292 and CF-2012-329. Frazier appeals both the revocation of her suspended sentences in CF-2012-292 and CF-2012-329 and the Judgment and Sentence in CF-2014-484. The Orders Nunc Pro Tunc Vacating Order Suspending Imposition of Judgment and Sentence in Case Nos. CF-2012-292 and CF-2012-329 and the Judgment and Sentence of the district court in Case No. CF-2014-484 are AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs. F-2014-1036 — Mario Sylvester Meadows, Appellant, was tried by jury for the crime of one count of Using a Vehicle to Facilitate the Intentional Discharge of a Firearm, After Former Conviction of Two or More Felonies, in Case No. CF-2013-2484, in the District Court of 988 Oklahoma County. The jury returned a verdict of guilty and recommended as punishment forty years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Mario Sylvester Meadows has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED. Appellant’s application for evidentiary hearing is DENIED. Opinion by: Hudson, J.; Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Lewis, J., Concurs in Results. F-2015-501 — Polly Anne Sanders, Appellant, was tried by jury for the crime of Child Endangerment by Driving Under the Influence (Count 1); Driving a Motor Vehicle While Under the Influence of Drugs (Count 2); and Driving with a Suspended License (Count 3) in Case No. CF-2014-323 in the District Court of Okmulgee County. The jury returned a verdict of guilty and recommended as punishment imprisonment for three (3) years in Count 1, one year in each of Count 2 and 3. The trial court sentenced accordingly and ordered the sentences to run consecutively. From this judgment and sentence Polly Anne Sanders has perfected her appeal. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur in Results; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur. Thursday, April 14, 2016 F-2015-139 — Brandon Palmer, Appellant, was tried by jury in Case No. CF-2014-20, in the District Court of Tulsa County, with the crimes of Robbery with a Firearm, After Former Conviction of Two or More Felonies (Count 3), and Assault While Masked or Disguised, After Former Conviction of Two or More Felonies (Count 10). The jury returned a verdict of guilty and recommended as punishment life imprisonment on each count. The Honorable Doug Drummond, District Judge, merged Counts 3 and 10 at sentencing and sentenced Palmer to life imprisonment on Count 3 with credit for time served. From this judgment and sentence Brandon Palmer has perfected his appeal. AFFIRMED. Opinion by: Hudson, J.; Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Lewis, J., Concurs. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 Friday, April 15, 2016 F-2014-1029 — Delila Pacheco, Appellant, was tried by jury for the crime of First-Degree Child-Abuse Murder in Case No. CF-2013-535 in the District Court of Cherokee County. The jury returned a verdict of guilty and recommended as punishment life imprisonment. The trial court sentenced accordingly. From this judgment and sentence Delila Pacheco has perfected her appeal. Judgment and Sentence AFFIRMED; request for evidentiary hearing DENIED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; Johnson, J., concur; Lewis, J., concur in result; Hudson, J., concur. Tuesday, April 19, 2016 F-2014-1064 — William Leon Bauders, Appellant, was tried by jury for the crime of Count I - Second Degree Felony Murder, Count II - Possession of a Stolen Vehicle, Count IV - Leaving the Scene of a Fatality Accident and Count V Driving With a Suspended/Revoked License in Case No. CF-2014-78 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment life imprisonment on Count I, five years in Count II, 10 years on Count IV and a $500 fine in Count V, with sentences to run consecutively. The trial court sentenced accordingly. From this judgment and sentence William Leon Bauders has perfected his appeal. AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; Johnson, J., concur; Lewis, J., concur; Hudson, J., concur. RE-2015-0381 — Appellant, Christopher Aaron Blankenship, pled guilty July 26, 2010, in Ottawa County District Court Case No. CF-2010-206 to Count 1 – Attempted Robbery First Degree, Count 2 – Burglary of an Auto, and Count 3 – Assault and Battery. He was given a ten year sentence with five years suspended, with rules and conditions of probation, credit for time served, and a $1,000.00 fine on Count 1; five years and a $500.00 fine on Count 2; and a $500.00 fine on Count 3. The sentences were ordered to run concurrently. The State filed a motion to revoke Appellant’s suspended sentence on August 12, 2014. Following a revocation hearing on April 15, 2015, the Honorable William Culver, Special Judge, found Appellant violated the terms and conditions of his probation and revoked Appellant’s suspended sentence in full. Appellant appeals the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence Vol. 87 — No. 13 — 5/14/2016 is AFFIRMED. Opinion by: Lewis, J.; Smith, P.J.: Concurs; Lumpkin, V.P.J.: Concurs; Johnson, J.: Concurs; Hudson, J.: Concurs. F-2015-121 — Erica Lashon Harrison, Appellant, was charged and tried by jury for the crime of first degree malice murder, in violation of 21 O.S.2011, § 701.7, in the district court of Tulsa County, case number CF-2013-1446, before the Honorable William C. Kellough, District Judge. The jury found Harrison guilty of the lesser offense of first degree manslaughter, in violation of 21 O.S.2011, § 715, and set punishment at twenty-five (25) years imprisonment and a $10,000.00 fine. The trial court sentenced Appellant in accordance with the jury verdict. Appellant perfected an appeal to this Court. Judgment AFFIRMED. Sentence REVERSED and REMANDED for resentencing. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs in Part and Dissents in Part; Johnson, J., Concurs; Hudson, J., Concurs in Part and Dissents in Part. Tuesday, April 26, 2016 C-2015-980 — Gary Thomas Schofield, Petitioner, entered a plea of nolo contendere for the crime of Driving Under the Influence of Intoxicants (Count 1); Driving Under Suspension (Count 2) and Failure to Use Child Restraint (Count 3) in Case No. CM-2000-798 in the District Court of Rogers County. On September 21, 2015, Petitioner entered his pleas to each count before the Honorable Terrell Crosson, Special Judge. The pleas were acccepted and Petitioner was sentenced in Counts 1 and 2 to concurrent sentences of ninety days in county jail, with credit for time served only in Rogers County Jail, and costs. In Count 3, a fifty ($50.00) fine was imposed and costs. On September 29, 2015, Petitioner filed an Application to Withdraw Cold Plea of Nolo Contest and Reinstate Trial Rights. At a hearing held on October 26, 2015, with Petitioner represented by counsel, the motion to withdraw was denied. It is that denial which is the subject of this appeal. Opinion by: Lumpkin, V.P.J.; Smith, P.J., concur; Johnson, J., concur; Lewis, J., concur; Hudson, J., concur. Friday, April 29, 2016 F-2015-571 — Jemaine Rashad Lovejoy, Appellant, was tried by jury for the crime of Child Neglect in Case No. CF-2014-3779 in the District Court of Tulsa County. The jury returned a verdict of guilty and assessed punishment at twenty years imprisonment. The trial The Oklahoma Bar Journal 989 court sentenced accordingly. From this judgment and sentence Jemaine Rashad Lovejoy has perfected his appeal. The Judgment and sentence of the District Court is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs. RE-2014-1089 — On September 13, 2010, Appellant Richard Frazier, represented by counsel Ron Berry, pled no contest in Craig County District Court Case No. CF-2009-128. Counts 2 and 3 were dismissed and Appellant was convicted on Count 1 and sentenced to fifteen years imprisonment, with all but the first five years suspended. On August 29, 2014, the State filed a First Amended Application to Revoke Appellant’s suspended sentence in Case No. CF-2009-128. Following a revocation hearing, the Honorable J. Dwayne Steidley, District Judge, found Appellant had violated the rules and conditions of his probation and revoked five years and six months of Appellant’s remaining suspended sentence. Appellant appeals. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., Concur; Lumpkin, V.P.J., Concur; Lewis, J., Concur; Hudson, J., Concur. F-2014-1035 — Elbryan Deambre Neal, Appellant, was tried by jury in Case No. CF-2013-1319, in the District Court of Oklahoma County, for the crimes of Count 1: Conspiracy to Commit a Felony; Count 2: Attempted Robbery with a Firearm; Count 5: Kidnapping; Count 8: Burglary in the First Degree and Count 9: Assault with a Dangerous Weapon. The jury returned a verdict of guilty and recommended as punishment on Count 1: Ten years imprisonment; Count 2: Life Imprisonment; Count 5: Twenty years imprisonment; Count 8: Twenty years imprisonment; and Count 9: Ten (10) years imprisonment. The trial court sentenced accordingly ordering the sentences to run consecutively. From this judgment and sentence Elbryan Deambre Neal has perfected his appeal. AFFIRMED. Opinion by: Hudson, J.; Smith, P.J., Concurs in Results; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Lewis, J., Concurs. Tuesday, May 3, 2016 RE-2015-0395 — Appellant, Jesus Calvillo, was charged in the District Court of Garfield County, Case No. CF-2012-471, on August 9, 2012, with Count 1 – Assault and Battery with a Dangerous Weapon, a felony, and Count 2 – Failure to Stop for Accident Resulting in Non990 fatal Injury. On December 3, 2013, he was charged in Garfield County Case No. CM-20131161 with Possession of Controlled Dangerous Substance, a misdemeanor. Appellant entered a plea of no contest, after two or more felony convictions, in both cases on February 18, 2014. In Case No. CF-2012-471 he was sentenced to twenty years suspended except for twenty-six weekends in the Garfield County Jail (to be completed within one year) on Count 1, and ten years suspended on Count 2, with rules and conditions of probation. In Case No. CM-2013-1161 Appellant was given a one year suspended sentence. The sentences were all ordered to run concurrently. The State filed a motion to revoke the suspended sentence in each case on January 6, 2015. An amended application to revoke was filed by the State on February 23, 2015. Following a revocation hearing before the Honorable Dennis W. Hladik, District Judge, on April 13, 2015, Appellant’s suspended sentences were revoked in full, to all run concurrently, and with credit for time served. Appellant appeals from the revocation of his suspended sentences. The revocation is AFFIRMED. Opinion by: Smith, P.J.: Lumpkin, V.P.J., concur; Johnson, J., concur; Lewis, J., concur; Hudson, J., concur. F-2015-199 — Robert Jerry Phillip Lawrence, Appellant, appeals from the acceleration of his deferred judgment and sentencing in Case No. CF-2014-259 and the revocation of his suspended sentence in Case No. CM-2014-673 in the District Court of Ottawa County, by the Honorable William Culver, Special Judge. AFFIRMED. Opinion by: Hudson, J.; Smith, P.J.: Concurs; Lumpkin, V.P.J.: Concurs; Johnson, J.: Concurs; Lewis, J.: Concurs. F-2015-516 — Michael Wayne Eckfeldt, Appellant, was tried by jury for the crimes of Count I - Child Sexual Abuse and Counts II and III - Sexual Abuse of a Child Under 12 in Case No. CF-2013-3445 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment life imprisonment on each of Count I and II and 35 years on Count III, to run consecutively. The trial court sentenced accordingly. From this judgment and sentence Michael Wayne Eckfeldt has perfected his appeal. AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; Johnson, J., concur; Lewis, J., concur; Hudson, J., concur. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 COURT OF CIVIL APPEALS (Division No. 1) Friday, April 22, 2016 113,425 — Susan Shelley, Petitioner/Appellee, vs. Kirk Shelley, Respondent/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Lisa K. Hammond, Judge. Respondent/Appellant Kirk Shelley appeals from the trial court’s order awarding Petitioner/Appellee Susan Shelley (Wife) attorney fees and costs for an application for contempt citation. We hold the trial court did not abuse its discretion by awarding Wife attorney fees in the amount of $4,275.00 and costs in the amount of $130.39. Evidence supports the trial court’s award based on the hours expended and the hourly rate. AFFIRMED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur. 113,524 — In the Matter of the Estate of Leo F. York, Deceased: Gina D. Park and Demetria Tricomi, Appellants, vs. Delores Landrum York, Caroline Wells, Jennifer Barnard, and Winton Landrum, II, Appellees, and Michael Tullius, Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Allen J. Welch, Jr., Judge. In this probate proceeding, Appellant Tullius, an attorney, appeals the trial court’s award of attorney fees and costs. Tullius represented Appellants Park and Tricomi, as personal representatives (PR) of the Estate of Leo F. York. Park was the only surviving child of Mr. York, and Tricomi is Park’s daughter. Park served as PR from August 2003 until her death in 2009. Tricomi served for a ten-month period in 2010 before resigning. Appellee Delores Landrum York was the surviving spouse of Mr. York and the original PR of the Estate before being removed. Delores York died during the pendency of the probate. Appellee Caroline Wells currently serves as PR. Wells and Appellees Jennifer Barnard and Winton Landrum, II are the heirs of the Estate of Dolores York. Thus, Wells, Barnard, and Landrum are heirs to the Estate. Tullius filed his Motion to Tax Costs and Attorney Fees requesting $45,062.50 in attorney fees and $219.59 in costs. The trial court entered a written order which incorporated by reference an 18-page letter ruling filed earlier setting forth the court’s analysis. The court awarded $13,715 in attorney fees and $220 in costs to Tullius. Tullius argues (1) the court erred by refusing to award attorney fees for work performed prior to either Park or Tricomi’s appointment as PR, Vol. 87 — No. 13 — 5/14/2016 (2) for refusing to award attorney fees for the drafting of a Petition filed within the probate on behalf of Park which benefitted the Estate, (3) refusing to award attorney fees for time spent on two earlier appeals in the probate, (4) that the court erred by failing to award fees for time spent at trial, and (5) reducing his fee award for payments the Estate made to a court reporter and not to him. Tullius failed to demonstrate how his service prior to either of his clients’ appointments as PR was incurred in the administration of the Estate or benefitted the Estate as a whole. The court’s decision not to award attorney fees for work performed during this time period was within its sound discretion. The denial of attorney fees for drafting the Petition was not an abuse of discretion as neither property nor a money judgment were recovered. The denial of appellate attorney fees on earlier appeals was within the court’s discretion because such work was not necessary for the administration of the estate nor did it benefit the Estate. Tullius provided no independent proof that he spent eight hours on each of two days at trial. The trial court was again within its discretion to deny attorney fees. However, we hold the trial court abused its discretion when it reduced the attorney fee award to Tullius for payments made to the court reporter. AFFIRMED IN PART, and REVERSED IN PART, in a manner consistent with the opinion. Opinion by Mitchell, J.; Buettner, V.C.J., P.J., and Goree, J., concur. 113,567 — City of Tulsa, Plaintiff/Appellee, vs. C.J. Morony, Defendant/Appellant, Wiggin Properties, Inc., Central Park Owners Association, Inc., J. Dennis Semler, Treasurer of Tulsa County, Oklahoma, Board of County Commissioners of Tulsa County, Oklahoma, Defendants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Carlos Chappelle, Judge. Defendant/Appellant C.J. Morony appeals the trial court’s order denying his claim of a homestead exemption for real property. Plaintiff/Appellee City of Tulsa filed a motion to dismiss the appeal as moot. We find the issue on appeal is moot. DISMISSED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur. 113,750 — Rachel M. Taylor, Petitioner/ Appellee, vs. Kevin L. Taylor, Respondent/Appellant. Appeal from the District Court of Comanche County, Oklahoma. Honorable Gerald Neuwirth, Judge. Appellant (Father) appeals from several orders in the Decree of Dissolu- The Oklahoma Bar Journal 991 tion of Marriage from Appellee (Mother). Father challenges the child support calculation, support alimony award and award of primary custody to Mother. Father contends his income was less than that used to calculate child support because he reduced his overtime when the parties separated. He also claims his child support should be reduced based on the number of overnights he was awarded with the children and that the court failed to credit his child support obligation with Mother’s share of the children’s health insurance premium. Father never argued the evidence he presented was not an accurate representation of his income, and he failed to introduce evidence of the health insurance premium to allow its inclusion in the child support computation. Father has also not shown he was entitled to a reduction in child support based on the number of overnight visits. The record does not support Father’s contention that the factual basis used by the court to support its award of support alimony was moot by the time of trial. Father has not shown any error in the trial court’s support alimony award and this Court will not presume error. Although Father presented a different version of the events involving domestic abuse and alcohol, there was evidence that Mother suffered domestic abuse by Father and that Father abused alcohol. The trial court is entitled to choose which testimony to believe as it has the advantage over this Court in observing the behavior and demeanor of the witnesses. We see no error in the court’s decision to award primary custody of the children to Mother. AFFIRMED. Opinion by Mitchell, J.; Buettner, V.C.J., P.J., and Goree, J., concur. 113,872 — In Re the Marriage of Brooke A. Martin and Marty D. Martin: Brooke A. Martin, Petitioner/Appellee, vs. Marty D. Martin, Respondent/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barry L. Hafar, Trial Judge. Father contends the trial court abused its discretion in not awarding the parties joint custody of Child. The best interest of the child is the primary concern in deciding a custody contest. Bilyeu v. Bilyeu, 2015 OK CIV APP 58, ¶8, 352 P.3d 56. Joint custody requires parents who (1) have an ability to communicate with each other; (2) are mature enough to set aside their own differences; and (3) can work together and engage in joint discussions with each other and make joint decisions regarding the best interest of their child. Foshee v. Foshee, 2010 OK 85, ¶16, 247 P.3d 1162. Evidence at trial demonstrated 992 that the parties have not communicated with each other and cannot set aside their own differences. There is no evidence they can work together and engage in joint discussion with each other and make joint decisions regarding Child’s best interest. The trial court’s decision awarding Mother sole custody of Child was not clearly contrary to the weight of the evidence and was not an abuse of discretion. Manhart v. Manhart, 1986 OK 12 ¶14. Father urges the trial court abused its discretion in awarding him only standard visitation, eliminating the Wednesday nights with Child he had during the pendency of the case. Based on the testimony and the demeanor and behavior of the witnesses, the trial court’s decision to award Father standard visitation without Wednesday night visitation was not an abuse of discretion. AFFIRMED. Opinion by Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J., concur. 114,093 — Burt Witaschek, Petitioner, vs. American Airlines, Inc., New Hampshire Insurance Company, and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation Court of Existing Claims. Petitioner Burt Witaschek (Claimant) seeks review of an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims finding employment activities were not the major cause of his injuries and denying compensability. We hold the panel’s order is not against the clear weight of the evidence. SUSTAINED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Joplin, J. (sitting by designation), concur. 114,226 — (Comp. w/114,234) Joanne Lowe, individually and as surviving spouse of Ty Dwayne Lowe, deceased, and on behalf of minor children G.L. and A.L., Plaintiff/Appellant, vs. Akerman Drilling, Inc., and Paul Gillham Oil Co., Defendants/Appellees, and Twister Drilling Company, Inc., and the Estate of John H. Gilbert, deceased, Defendants. Appeal from the District Court of Seminole County, Oklahoma. Honorable George W. Butner, Judge. Plaintiff/Appellant Joanne Lowe, individually and as surviving spouse of Ty Dwayne Lowe and on behalf of minor children G.L. and A.L, appeals from summary judgment granted in favor of Defendants/Appellees Akerman Drilling, Inc. and Paul Gillham Oil Co. (PGOC). Lowe filed this wrongful death action against Defendants Twister Drilling Co. and the Estate of John H. Gilbert, alleging their negligence The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 resulted in the death of Lowe’s husband, Ty Dwayne Lowe, and alleging that Akerman was liable as the alter ego of Twister and that PGOC was contractually liable for Twister’s torts. The trial court granted summary judgment to Akerman and PGOC and certified the judgment for immediate review. The record on appeal shows no dispute of material fact on Lowe’s claim that Akerman was the alter ego of Twister. The record also shows that it is undisputed that Twister was an independent contractor and under the contract, PGOC was not liable for injuries occurring during Twister’s employees’ trip home from work on PGOC’s well. Akerman and PGOC were entitled to judgment as a matter of law and we affirm. AFFIRMED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur. 114,234 — (Comp. w/114,226) A. Todd Holliman, Plaintiff/appellant, vs. Akerman Drilling, Inc., and Paul Gillham Oil Co., Defendants/ Appellees, and Twister Drilling Company, Inc., the Estate of John H. Gilbert, deceased, and the Estate of Ty Dwayne Lowe, Deceased, Defendants. Appeal from the District Court of Seminole County, Oklahoma. Honorable George W. Butner, Judge. Plaintiff/Appellant E. Todd Holliman appeals from summary judgment granted in favor of Defendants/Appellees Akerman Drilling, Inc. and Paul Gillham Oil Co. (PGOC). Holliman was the passenger in a vehicle driven by his co-worker John H. Gilbert which collided head-on with a vehicle driven by Ty Dwayne Lowe. Gilbert and Lowe died in the accident and Holliman was injured. Holliman sued his employer, Twister Drilling Co., the Estate of John H. Gilbert, and the Estate of Ty Dwayne Lowe, alleging their negligence resulted in Holliman’s injuries; Akerman, alleging it was liable as the alter ego of Twister; and PGOC, alleging it was contractually liable for Twister’s negligence. The trial court granted summary judgment to Akerman and PGOC and certified the judgment for immediate review. The record on appeal shows no dispute of material fact on Holliman’s claim that Akerman was the alter ego of Twister and Akerman was entitled to judgment as a matter of law. The record also shows that it is undisputed that Twister was an independent contractor and PGOC was not liable for injuries occurring during Twister employees’ trip home from work on PGOC’s well. We affirm. AFFIRMED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur. Vol. 87 — No. 13 — 5/14/2016 114,275 — Ralph W. Emerson, III and Alice F. Emerson, Husband and Wife, Petitioners/ Appellants, vs. McIntosh County Assessor and Board of County Commissioners, Respondents, and Trina Williams, County Assessor of McIntosh County, Oklahoma; Jack Pugh; Douglas Howell and Trina Williams, Acting as the McIntosh County Board of Equalization, Appellees. Appeal from the District Court of McIntosh County, Oklahoma. Honorable Jim Pratt, Trial Judge. Plaintiff/Appellants, Ralph W. Emerson, III, and Alice F. Emerson (Homeowners), seek review of the trial court’s order affirming the tax assessment on their lakefront property. At issue is whether the assessment should have been reduced pursuant to 68 O.S. 2011 §2817(F) to the extent the property was subject to a flowage easement. We hold that subsection F does not apply to the valuation of Homeowners’ property because the property has been developed and must be valued based upon its current use. AFFIRMED. Opinion by Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J., concur. 114,308 — Tammy Jackson, Plaintiff/Appellant, vs. Kum & Go, L.C., Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Mary F. Fitzgerald, Judge. Plaintiff/Appellant Tammy Jackson appeals from summary judgment granted to Defendant/Appellee Kum & Go, L.C. (Store) in Jackson’s suit for damages resulting from a slip and fall at Store’s premises. The summary judgment record shows no dispute of fact that the hazard was open and obvious and therefore Store had no duty to warn Jackson of the hazard and was entitled to judgment as a matter of law. We affirm. AFFIRMED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur. (Division No. 2) Thursday, April 14, 2016 114,152 — Thermal Seal Duct Systems, Inc., Petitioner, v. Brady Fagg, National Trust Ins. and the Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to review an Order of a three-judge panel of the Workers’ Compensation Court of Existing Claims, Hon. Michael W. McGivern, Trial Judge. Petitioner (Thermal) seeks review of the panel’s Order affirming the order of the trial court finding that American Metal Fabrication, Inc. (AMF) was the employer of Respondent Brady Fagg (Claimant) on the date of Claimant’s injury and dismissing Thermal and Respondent National Trust Ins. (National) as parties in this matter. According to National, which filed an Answer The Oklahoma Bar Journal 993 Brief on appeal, Thermal challenges the panel’s Order dismissing Thermal and National from this case because AMF was uninsured at the time of Claimant’s injury and Thermal and AMF have common ownership. Thus, Thermal, who was insured by National at the time of the alleged injury, asserts it should be found to be Claimant’s employer and that, regardless, National should be ordered to provide benefits coverage to Claimant. However, National contests Thermal’s standing to appeal this matter. Indeed, a party invoking this Court’s jurisdiction has the burden of establishing its standing, when contested, to pursue the action in court. In order to meet this burden on appeal a party must show, inter alia, that it has been aggrieved by the lower court’s decision in order to appeal from it. Thermal, who was found below to not be Claimant’s employer at the time of the work-related injury and, therefore, not responsible for payment of compensation benefits, has plainly failed to meet this burden. It is only National that has supplied this Court with any indication as to how Thermal may have been aggrieved. Because it is Thermal’s burden to establish its standing to appeal the panel’s Order, and because Thermal has failed to meet this burden, we dismiss this appeal for lack of standing. APPEAL DISMISSED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur. tion VI is not in compliance with Oklahoma Supreme Court Rule 1.14(A) and (B); therefore, Mother’s request for appeal-related attorney fees and costs is denied. Proposition VI, to the extent Mother asks for trial-related attorney fees — fees the trial court denied — provides no argument about how or why the trial court’s order denying either party attorney fees was an abuse of discretion; consequently, in the absence of a sufficient record to show the trial court committed error, we will not consider her request for trial-related attorney fees. As to Mother’s remaining proposition concerning the award of sole custody of the parties’ minor child to Father, we conclude the trial court’s decision was not against the clear weight of the evidence. Consequently, based on our review of the record and applicable law, we conclude the trial court did not abuse its discretion in awarding sole custody of the minor child to Father and affirm the Decree. We grant Father’s motion for appeal-related attorney fees for the reasonable amount of attorney fees he incurred with respect to Mother’s Propositions I, II, III, and IV, and remand the case to the trial court to determine that amount. Accordingly, we affirm the Decree and remand the case for further proceedings. AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur. 112,9 95 — In re the Marriage of: Darrell W. Dyer, Petitioner/Appellee, v. Robyn L. Dyer, Respondent/Appellant. Appeal from the District Court of Creek County, Hon. Mark A. Ihrig, Trial Judge. In this divorce action, Respondent/Appellant (Mother) appeals from a Decree of Dissolution of Marriage (Decree) in which she and Petitioner/Appellee (Father) were granted a divorce on the ground of incompatibility. Mother asserts on appeal the trial court abused its discretion regarding child custody, division of marital assets, identification and award of personal property, and restoration of her maiden name. Mother also argues the trial court was unfair and inequitable to her because it found her to be in contempt of one of its orders. On appeal, Father filed a motion to dismiss Mother’s Brief-in-chief. By Order of the Oklahoma Supreme Court, the motion was deferred to the decisional stage. While we deny the motion, we agree with Father that Mother’s appellate brief is deficient, a deficiency that severely restricts the review we can make or will make in this appeal. Propositions I, II, III, and IV are devoid of legal authority. Proposi- Wednesday, April 20, 2016 994 113,723 — (Consolidated with Case No. 113,725 and Companion with Case No. 112,411) – James W. Trenz, individual, and Terrane Associates, Inc., Plaintiffs, v. Glen Rupe, individual and Rupe Oil Company, Inc., Defendants/Appellants, and Peter Paul Petroleum Company, Defendant, and Bradley D. Brickell & Associates, and Ted W. Haxel, Attorney Lien Claimants/Appellees, and Mahaffey & Gore, P.C., Attorney Lien Claimant. Appeal from an Order of the District Court of McClain County, Hon. Tracy Schumacher, Trial Judge. The plaintiffs, James Trenz and Terrane Associates, Inc. (together “Trenz”) appeal a judgment awarding attorney fees and costs to the attorney fee and lien claimants Brickell and Associates P.C. (Brickell) and Ted W. Haxel (Haxel), for foreclosing their attorneys’ liens. The defendants, Glen Rupe and Rupe Oil Company (collectively “Rupe”) also separately appeal the same Order, as amended, insofar as it taxed costs against Rupe. These two appeals have been consolidated by Order of the Oklahoma Su- The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 preme Court. Brickell and Haxel had attorneys’ liens for their services for representation of Trenz. A hearing was held to determine the fee. The hearing resulted in a lodestar fee and an enhancement of the lodestar fee for both attorneys. This decision was appealed and this Court reversed the enhanced portions of both fees and slightly modified Haxel’s lodestar fee. The Supreme Court denied certiorari on Brickell’s and Haxel’s petition for certiorari. Brickell and Haxel were represented by retained counsel in that proceeding. Thereafter, Brickell and Haxel, requested fees for prevailing on their attorneys’ liens matter. Again they were represented by retained counsel. The trial court awarded fees to each and to retained counsel for the legal work in foreclosing the attorneys’ liens. Trenz appeals the fees and costs award. Rupe appeals the costs award and is not responsible for the fee awards. These two appeals have been consolidated. With certain safeguards, attorneys who represent themselves may recover attorney fees, when recovery of attorney fees is authorized. However, here Brickell and Haxel are the clients. There is no authority given under the American Rule, as strictly applied in Oklahoma, whereby an attorney who is represented by independent counsel may recover attorney fees in his or her own right. Therefore, the judgment for the attorney fees for Brickell and Haxel is vacated and reversed. The judgment awarding retained counsel’s attorney fee is affirmed. The trial court’s denial of attorney fees for additional retained counsel is affirmed. In their appellate Brief, Brickell and Haxel withdrew the claim for expert witness fees. The trial court’s award of expert witness fees as costs is vacated. The trial court awarded several itemized sums as costs. These costs, with one exception, are not shown to qualify as costs that may be recovered. With the exception, costs award is modified to award costs of $565.42. AFFIRMED IN PART, REVERSED IN PART AND MODIFIED IN PART. Opinion from Court of Civil Appeals, Division II by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur. Thursday, April 21, 2016 112,529 — Bobby Riley and Laura ChrismanRiley, Individually, and Husband and Wife, Plaintiffs/Appellees, v. Gary Chrisman, Jr., Individually, Defendant/Appellant, and Martin Ramos, Individually, Defendant. Appeal from the District Court of Oklahoma County, Hon. Barbara Swinton, Trial Judge. In this forecloVol. 87 — No. 13 — 5/14/2016 sure action, Plaintiffs/Appellees (the Rileys) sought to foreclose a Contract for Deed for certain real property against Defendant/Appellant (Chrisman), and Defendant Martin Ramos, the person to whom Chrisman executed a lease with option to purchase the real property. After a non-jury trial, the trial court issued its Order finding Chrisman was in default under the Contract for Deed and further finding the forfeiture clause in the Contract for Deed is valid and the Rileys are entitled to retain all equity resulting from Chrisman’s purchase and payments made under the Contract for Deed. We conclude the trial court’s determination that Chrisman defaulted under the terms of the Contract for Deed is not against the clear weight of the evidence. The case is remanded to the trial court, however, to determine the amount of the principal and interest Chrisman owes to the Rileys given his default and costs and fees related to the default as set out in the Contract for Deed. We further conclude the trial court’s determination that the forfeiture clause is valid and enforceable is contrary to law and Chrisman is entitled to a judgment for whatever equity, if any, he may have in the subject property after the court determines what his equity interest in the sale proceeds is and after the trial court determines the costs and fees attributable to Chrisman for his default pursuant to the Contract for Deed. Accordingly, the Order is affirmed in part, reversed in part, and re-manded for further proceedings. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur. Friday, April 22, 2016 113,053 — In the Matter of the Estate of Virgil J. Bricker s/p/a Virgil Bricker, Deceased. Paula Jo Lane, Linda Susan Kader and Virgil Dean Bricker, Appellants, v. Rosa Goforth, Appellee. Appeal from the District Court of Seminole County, Hon. Timothy Olsen, Trial Judge. Appellants appeal from an Order of the trial court determining, among other matters, that Appellee is the common law wife of Appellants’ deceased father. We conclude the trial court’s determination that Appellee is the deceased’s common law wife is not clearly against the weight of the evidence. Accordingly, we affirm the Order. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur. The Oklahoma Bar Journal 995 113,470 — State of Oklahoma ex rel. W.A. “Drew” Edmondson, Attorney General of Oklahoma, Plaintiff/Appellant, v. Grand River Enterprises Six Nations, Ltd., Defendant/Appellee, and Grand River Enterprises Six Nations, Ltd., a Canadian corporation and Tobaccoville USA, Inc., a South Carolina corporation, Plaintiff, vs. State of Oklahoma ex rel. Oklahoma Tax Commission and State of Oklahoma ex rel. Office of the Attorney General of Oklahoma, Defendants. Appeal from the District Court of Oklahoma County, Hon. Patricia G. Parrish, Trial Judge. This case was the subject of two prior appeals. A detailed recitation of the facts and background of this case can be found in State ex rel. Edmondson v. Grand River Enterprises Six Nations, Ltd., 2013 OK CIV APP 58, 308 P.3d 1057. The present appeal arises from post-judgment proceedings and Plaintiff/ Appellant’s (State) efforts to collect on a multimillion dollar judgment affirmed by this Court in the second appeal. In particular, State appeals, and Defendant/Appellee (GRE) counter-appeals, from the trial court’s Order filed in November 2014 granting in part and denying in part GRE’s Motion to Reconsider the trial court’s prior order directing GRE to attend an asset hearing and enjoining GRE from transferring property. In its November 2014 Order, the trial court granted one proposition set forth in GRE’s Motion to Reconsider by finding it “lacks the territorial jurisdiction to compel the attendance of GRE from outside the borders of Oklahoma.” However, the trial court found that “State is permitted to issue interrogatories or request for production of documents concerning [GRE’s] property, income, or liabilities,” and the trial court rejected GRE’s arguments that the underlying judgment has become dormant and unenforceable and that GRE should be granted a discretionary stay pending appeal. Based on our review, we affirm the trial court’s determination that the underlying judgment did not become dormant and unenforceable. We also affirm the trial court’s denial of GRE’s request for a discretionary stay. However, we reverse the trial court’s finding that it lacked jurisdiction to order GRE to appear at an asset hearing related to the enforcement of the underlying judgment, and we remand this case to the trial court. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur. 112,811 — John D. Sikes, Tamara J. Sikes, Husband and Wife, The Estate of Johnny F. 996 Sikes, Connie Sikes, William Brunk, Kathryn Brunk, Husband and Wife, Phil Converse, Ava Converse, Paula Rush, The Janice Earline Converse Family Revocable Trust, Shannon Shirley and Reginald Robbins, Husband and Wife, Plaintiffs/Appellees, v. Mehlburger Brawley, Inc., as Successor in Interest to NRS, Inc., d/b/a NRS Consulting Engineers, Defendant/Appellant, and B3, INC., Defendant. Appeal from the District Court of Johnston County, Hon. Charles Migliorino, Trial Judge. Defendant/Appellant (MBI) appeals from the trial court’s Order refusing to vacate its order imposing a constructive trust for the benefit of Plaintiffs/Appellants (Plaintiffs). MBI also appeals from the trial court’s reappointment of Receiver. Based on the appellate record and applicable law, we conclude the trial did not abuse its discretion in refusing to vacate its order imposing a constructive trust on MBI’s assets. We further conclude MBI’s petition in error is premature as to its assertion that the trial court abused its discretion in reappointing the Receiver because there is no order in the record on the date the petition in error was filed reappointing the Receiver and no amended petition in error has been filed by MBI that includes such an order. ORDER AFFIRMED DENYING MOTION TO VACATE; PETITION IN ERROR DISMISSED IN PART AS PREMATURE REGARDING REAPPOINTMENT OF RECEIVER PURSUANT TO OKLAHOMA SUPREME COURT RULE 1.26(c). Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur. Tuesday, April 26, 2016 113,667 (Companion with Case No. 113,668) — State of Oklahoma ex rel. Department of Human Services, Petitioner/Appellant, v. Steven Dewayne Sapp, Respondent/Appellee. Appeal from the District Court of Oklahoma County, Hon. Geary L. Walke, Trial Judge. Petitioner/Appellant (State) appeals from a Judgment in which the trial court dismissed its Application for Contempt Citation and Citation for Indirect Contempt of Court against Respondent/Appellee (Sapp) for failure to pay child support. Sapp has entered no appearance on appeal and has filed no appellate brief. State sought enforcement of the child support order by filing an application for contempt because, although current support was no longer due, Sapp owed a considerable child support arrearage and failed to make court ordered payments for past due child support for a specified period. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 The trial court, sua sponte, dismissed State’s application because “the children in this case have reached the age of majority and current support is no longer due.” The trial court found “once current support is no longer due, the collection of the back child support arrears become a debt like any other civil debt and the collection of the debt should not be brought under indirect civil contempt but collected by other civil means.” Based on the controlling law found in 21 O.S. 2011 § 566 and the reasoning in Roca v. Roca, 2014 OK 55, ¶ 10, § 337 P.3d 97, we conclude the trial court erred as a matter of law in concluding that enforcement of past child support payments once current child support is no longer due must be collected by civil means other than indirect civil contempt. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur. 113,668 (Companion with Case No. 113,667) — State of Oklahoma ex rel. Department of Human Services, Petitioner/Appellant, v. Steven Dewayne Sapp, Respondent/Appellee. Appeal from the District Court of Oklahoma County, Hon. Geary L. Walke, Trial Judge. This appeal and Case No. 113,667 were made companion appeals by Order of the Oklahoma Supreme Court. As set forth in more detail in the companion appeal, Petitioner/Appellant (State) appeals from the Judgment in which the trial court dismissed its application for contempt citation for failure to pay child support against Respondent/Appellee (Sapp). In the companion appeal, we concluded, based on the controlling law found in 21 O.S. 2011 § 566 and the reasoning in Roca v. Roca, 2014 OK 55, ¶ 10, 337 P.3d 97, the trial court erred as a matter of law in concluding enforcement of past child support payments after a child reaches majority must be collected by civil means other than indirect civil contempt. Consequently, in light of the Opinion issued in the companion case, we summarily reverse the Judgment pursuant to Oklahoma Supreme Court Rule 1.201, 12 O.S. 2011, ch. 15, app. 1, and remand the case for further proceedings. SUMMARILY REVERSED UNDER RULE 1.201 AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur. 113,433 — In re the Marriage of: Shelly Jo Coker, Petitioner/Appellee, vs. James Robert Coker, Respondent/Appellant. Proceeding to Vol. 87 — No. 13 — 5/14/2016 review a judgment of the District Court of Stephens County, Hon. G. Brent Russell, Trial Judge. James Coker (Husband) appeals the decision of the district court that Shelly Coker (Wife) has an interest in the previously separate real property of Husband after he deeded the property to himself and Wife as joint tenants with right of survivorship. Husband testified that he did not intend a gift. At trial Husband testified that he put the property into joint tenancy with right of survivorship “to avoid probate” and did not elaborate. We find few other significant facts that may influence the issue in one direction or another. This question is a question of fact subject to the discretion of the district court, which must untangle these questions of intent and motivation by an assessment of the facts and testimony. We review this decision only to determine if no rational basis exists on which the trial court could find Husband failed to overcome the presumption of an inter-spousal gift stated by Larman v. Larman, 1999 OK 83, 991 P.2d 536. We find the trial court’s decision was within its discretion in this matter. AFFIRMED. Opinion from Court of Civil Appeals, Division II by Thornbrugh, P.J.; Rapp, J., and Barnes, J., concur. 113,282 — Eugene M. Jardot, Vivian McFarland Atwood, Larry T. Jardot, Lee Roy “Tommy” Jardot and Tamela Jardot Cummings, Plaintiffs/Appellees, vs. Esther L. Jardot, aka Esther L. Niimi, individually, and Esther L. Jardot, Successor Trustee of The Eugene K. and Vada M. Jardot Revocable Living Trust, Dated May 13, 1999, a revocable trust, Defendants/ Appellants. Proceeding to review a judgment of the District Court of Payne County, Hon. Phillip Corley, Trial Judge. Esther Jardot, appearing pro se, appeals the decisions of the district court in a trust administration and accounting case. The district court found that Jardot, acting as Trustee, cashed in CDs belonging to the Trust in the amount of $83,000.00, but did not use this money for Trust purposes, and made other improper distributions of trust money and property. The court found the beneficiaries entitled to a judgment against Jardot in the amount of $124,123. Pursuant to the deferential standard of review assigned, we find no merit in the allegations of factual error raised in Ms. Jardot’s brief. As such, we affirm the decisions of the district court. AFFIRMED. Opinion from Court of Civil Appeals, Division II by Thornbrugh, P.J.; Rapp, J., and Barnes, J., concur. The Oklahoma Bar Journal 997 113,833 — Thomas Saicheck, an individual, and Marilyn Tahl, an individual, Plaintiffs/ Appellants, vs. Taber Leblanc, an individual and d/b/a Homes by Taber and Taber Built Homes, LLC, Defendant/Appellee. Proceeding to review a judgment of the District Court of Canadian County, Hon. Gary Miller, Trial Judge. Thomas Saicheck, and Marilyn Tahl (Homeowners) appeal the decision of the district court vacating a default judgment against Taber Leblanc, d/b/a Homes by Taber and Taber Built Homes (Builders). This matter was originally sent to contractual arbitration by order of the court in February 2012, but somehow returned to the district court without resolution in 2013. Exactly how is uncertain from the record. In August 2014, the court granted default against Builders for failure to appear at a pre-trial conference. A damage hearing was evidently set for September 22, 2014. An order from that date indicates that Builders had again failed to appear, and awards a total of $204,396 in damages. In December, 2014, Builders filed a motion to vacate, alleging that their counsel had been suspended from the practice of law and had been arrested and charged in a criminal matter. Builders denied any knowledge of, or notice from, their counsel regarding his suspension, or any knowledge or actual notice of the hearings set for August and September 2014. Homeowners argue that any default was due to negligence of counsel; that this negligence is attributed by law to Builders; and this was not an “unavoidable casualty.” We find that, in these circumstances, the negligence of counsel in allowing default should not be attributed to Builders. We note, and share, the district court’s concern that this matter has been in litigation since late 2009, and that Homeowners have waited a long time for relief. We affirm the district court’s vacation of the default judgment, and remand this mater for a timely resolution. AFFIRMED. Opinion from Court of Civil Appeals, Division II by Thornbrugh, P.J.; Rapp, J., and Barnes, J., concur. (Division No. 3) Friday, April 8, 2016 113,576 — Richard Spaulding, Petitioner/ Appellant, vs. Debra Morgan, Respondent/ Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Stephen R. Clark, Judge. Appellant (Father) appeals from the trial court’s order dismissing his petition to vacate a consent order modifying decree of paternity entered March 27, 2013 (2013 Con998 sent Order). The 2013 Consent Order granted Appellee (Mother) legal custody of the parties’ minor child and awarded Father visitation. Father sought to vacate the 2013 Consent Order on the basis that Mother and her counsel made a “fraudulent suggestion” and obtained an earlier court order (2012 Order) placing the child’s custody with non-party, maternal grandparents. Later, the 2012 Order was vacated because the trial court found it lacked jurisdiction to grant the non-party maternal grandparents custody of the child. The court dismissed Father’s petition to vacate the 2013 Consent Order for failing to state a cognizable legal claim because it could not find the “suggestion,” that precipitated the 2012 Order, was fraudulent or that there was a sufficient nexus between the “suggestion,” the court’s earlier jurisdictional error, and the 2013 Consent Order. Father also appeals from the court’s order granting attorney fees and costs to Mother. Throughout this proceeding, Father has been represented by counsel. Father’s signature on both orders evinces he exercised his own free will in approving and signing same. There are no facts showing that Mother exerted fraud, duress, or undue influence upon Father in obtaining his agreement to the 2013 Consent Order. The 2013 Consent Order also appears to be fair on its face as it provides Father with liberal visitation. Because we affirm the trial court’s dismissal order, we find the court acted within its statutory authority in awarding Mother her attorney fees and costs under 43 O.S. Supp. 2015 §109.2(B). AFFIRMED. Opinion by Bell, P.J.; Joplin, J., and Hetherington, J., concur. 113,613 — In the Matter of the Estate of Ruth Hewitt, Deceased. Lori Lee Hewitt Chelenza and Treena Marie Hewitt Hassell, Petitioners/ Appellants, vs. Mary J. Bradford now Brown, Rene Coulson, Amy Marie Rea, Glenda Hewitt a/k/a Gwen Hewitt, Imogene Hewitt and Jana Hewitt Smith, Respondents/Appellees. Appeal from the District Court of Dewey County, Oklahoma. Honorable Ray Dean Linder, Judge. Petitioners seek review of the trial court’s order denying their Petition to Vacate the final decree of distribution in the Matter of the Estate of Ruth Hewitt, Deceased, some thirteen years after its entry. In this appeal, as they did below, Petitioners assert the decree of distribution entered in the probate of Decedent’s estate is void on its face for its failure to direct the distribution of a share of Decedent’s estate to their ancestor, a specifically named devisee in the Last Will and Testament of Decedent, and here The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 complain the trial court erred as a matter of law and fact in refusing to vacate that void final decree of distribution. The courts of this state are courts of general jurisdiction in probate matters, and an order entered in the exercise of the general probate jurisdiction, even if based on some error of law, is nevertheless valid, not void, and subject to correction only by direct appeal. The final decree in the Decedent’s estate was entered in the general jurisdiction of the probate court, within its power to determine matters concerning the division and distribution of a decedent’s estate. At best, the omission of Forrest from the division and distribution of the Decedent’s residuary estate constituted an error of law, not an invalid exercise of the probate court’s general probate jurisdiction. As an error of law, correction could be had only by timely direct attack in an appeal. The probate court’s final decree was not void. AFFIRMED. Opinion by Joplin, J.; Bell, P.J., and Hetherington, J., concur. (Division No. 4) Wednesday, March 16, 2016 114,321 — Steven Wade Jameson, Plaintiff/ Appellee, vs. State of Oklahoma ex rel., Department of Public Safety, Defendant/Appellant. Appeal from an order of the District Court of Payne County, Hon. Steven R. Kistler, Trial Judge, vacating Department of Public Safety’s (DPS) cancellation of Steven Wade Jameson’s (Jameson) driver’s license. We affirm the trial court’s findings: 1) that the municipal court was without jurisdiction to cancel Jameson’s driver’s license pursuant to 47 O.S.2011, § 6-107.1; 2) that Jameson’s petition for relief was not a collateral attack on a conviction or final determination in violation of 47 O.S.2011, § 6-107(c)(2); 3) that DPS failed to give Jameson proper notice as required by 47 O.S.2011, §§ 6-107.1 and 2-116; 4) that Jameson’s petition for relief was not time-barred pursuant to 47 O.S. 2011, § 6-211. However, we remand for a determination whether Jameson’s action is barred by the statute of limitations. AFFIRMED IN PART AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Opinion from the Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur. Tuesday, March 22, 2016 113,171 — Darren B. Janes, Petitioner/Appellant, v. Cody D. Janes, Respondent/Appellee. Appeal from an Order of the District Court of Vol. 87 — No. 13 — 5/14/2016 Garfield County, Hon. Paul K. Woodward, Trial Judge. Darren B. Janes (Father) appeals a July 31, 2014, order denying his motion for new trial. Father contends the trial court erred in granting, by order entered on April 25, 2014, Cody D. Janes’ (Mother) motion to modify custody as well as awarding Mother an attorney’s fee. We find no error. However, we hold the trial court’s September 9, 2015, order granting Mother an attorney’s fee pursuant to 43 O.S. 2011, § 112(D)(2) is without a basis in law, and is reversed. Accordingly, based upon our review of the record and applicable law, we affirm in part and reverse in part. AFFIRMED IN PART, REVERSED IN PART. Opinion from Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur. 113,635 — Terry Murphy, d/b/a Environmental Products and Roger Lackey, Plaintiffs/ Appellants, v. The Kickapoo Tribe of Oklahoma and The Kickapoo Casino, a Separate Oklahoma Entity, Defendants/Appellees. Appeal from an Order of the District Court of Lincoln County, Hon. Cynthia Ferrell Ashwood, Trial Judge. Plaintiffs appeal the trial court’s order granting summary judgment to Defendants Kickapoo Tribe of Oklahoma (Tribe) and the Kickapoo Casino, a Separate Oklahoma Entity (Casino). Plaintiff Murphy entered into a contract with Tribe, while Plaintiff Lackey was employed by Casino. Murphy alleged Tribe breached the contract, and Lackey alleged Casino wrongfully terminated him following the conclusion of a workers’ compensation claim. Plaintiffs’ claims against Casino were first filed and dismissed in the Tribal Court. That order was a final, appealable order. The Lincoln County District Court found, and the record supports the finding, that an appellate procedure, open to non-tribal members, was in existence at the time the final order was issued. We conclude the trial court’s order correctly held that the Tribal Court order dismissing Casino and Tribe was an appealable order. For whatever reason, it was never appealed, and became final. Tribal court orders are entitled to full faith and credit in Oklahoma district courts. The issues raised and resolved in those orders between these same parties became res judicata in the Lincoln County action. Casino/Tribe is entitled to judgment as a matter of law. The trial court’s order is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur. The Oklahoma Bar Journal 999 113,422 — St. John Health System, Inc., Plaintiff/Appellee, v. Kenneth L. Smith, Defendant, and Rita Marie Smith, Defendant/Appellant. Appeal from an Order of the District Court of Tulsa County, Hon. Carlos Chappelle, Trial Judge. Defendant Rita Smith appeals the trial court’s order denying her an attorney’s fee against St. John Health System, Inc. (Hospital), contending she was the prevailing party on Hospital’s action to recover for labor or services rendered and is therefore entitled to an attorney’s fee pursuant to 12 O.S.2011, § 936, or in the alternative, she should be awarded an attorney’s fee based on the trial court’s inherent power to award a fee pursuant to City Nat. Bank & Trust Co. of Oklahoma City v. Owens, 1977 OK 86, 565 P.2d 4, and because of public policy arguments. We hold Defendant is the prevailing party in Hospital’s action to recover for labor or services. This is so because the applicable statute, 12 O.S.2001 and Supp.2004, § 684, allows Hospital to escape the fee-shifting provisions of § 936 only when it dismisses its claim before Defendant sought affirmative relief. Because Defendant successfully overturned two judgments against her before Hospital dismissed its claim, Defendant successfully obtained affirmative relief and is therefore by definition the prevailing party under 12 O.S.2001 and Supp. 2004, § 684 and § 936. As prevailing party, Defendant has shown she is entitled to an attorney’s fee pursuant to the mandatory award provisions of § 936. The trial court’s order holding otherwise is erroneous and is reversed. The matter is remanded with directions to enter judgment in favor of Defendant on her § 936 fee claim. The judgment shall be consistent with the evidence produced at the December 9, 2013, Burk hearing. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur. 113,787 — In the Matter of T.J., Deprived Child, Chester Williams, Appellant, v. State of Oklahoma, Appellee. Appeal from an order of the District Court of Oklahoma County, Hon. Gregory J. Ryan, Trial Judge. Chester Williams (Father) appeals a trial court order upon jury verdict terminating his parental rights to his minor son, TJ. We are asked to review whether the State of Oklahoma proved by clear and convincing evidence that Father failed to correct the conditions leading to the adjudication of TJ as deprived and whether termination of Father’s parental rights was in TJ’s best interests. We conclude State has shown by clear and 1000 convincing evidence that Father’s parental rights should be terminated pursuant 10A O.S. Supp. 2013 § 1-4-904(B)(5). We also see no abuse of discretion by the trial court in admitting or excluding evidence. Accordingly, we affirm the trial court’s order terminating Father’s parental rights. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Wiseman, P.J.; Goodman, C.J., and Fischer, J., concur. Wednesday, March 30, 2016 114,055 — In the Matter of M.E.C., A.C., S.C., E.C., and K.C., Deprived Children, Victor Colungo and Vanessa Colungo, Appellants, v. State of Oklahoma, Appellee. Appeal from an Order of the District Court of Oklahoma County, Hon. Lisa Tipping Davis, Trial Judge. Vanessa Colungo (Mother) and Victor Colungo (Father) (collectively “Parents”) appeal from the trial court’s orders terminating their parental rights in their minor children following a jury trial. Parents contend the jury’s verdict was not supported by clear and convincing evidence or in the best interest of the minor children and that the evidence presented at trial indicated they were in substantial compliance with their ISP. The record provides Parents have refused to acknowledge or accept any responsibility for why the minor children were removed and placed in DHS custody or that they could implement any of the training they had been taught in their various classes. Accordingly, we agree that the jury’s findings that Parents have failed to correct the conditions which led to the deprived adjudication are supported by clear and convincing evidence and that it is in the minor children’s best interest that Parents’ parental rights be terminated. Parents further contend they were not reasonably informed of the expected conduct required to correct the conditions that caused the minor children to be deprived. We find Parents had sufficient notice of the conditions that needed correcting to prevent termination. The evidence introduced at trial, including testimony of State’s witnesses, as well as the DHS, tribal, and CASA reports filed in this case, demonstrates Parents were given notice of the conditions that needed correcting as well as extensive time to correct these conditions. Therefore, we reject Parents’ due process argument. Finally, our review of the orders terminating Parents’ parental rights reveal two (2) scrivener’s errors. Accordingly, upon remand the trial court is directed to enter orders nunc The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 pro tunc correcting the scrivener’s errors. AFFIRMED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur. 112,924 — In the Matter of J.B., a child under 18 years of age. Bryan Byers, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Tulsa County, Oklahoma, Hon. Kirsten Pace, Trial Judge. Bryan Byers (Father) appeals the order terminating his parental rights for failure to correct the conditions which led to the adjudication that his child was deprived. Father argues that he was denied procedural due process because the child’s attorney adopted the State’s case in chief. “The essence of procedural due process in the context of a proceeding to terminate parental rights is a fair opportunity to be heard and present a defense. This includes a reasonable opportunity to confront and cross-examine witnesses.” In re A.M. & R.W., 2000 OK 82, ¶ 16, 13 P.3d 484. Father was permitted to attend the trial and present testimony before the jury. He was also permitted to cross-examine witnesses called by the State. Father called the child as a witness and engaged her in direct and redirect examination. Father has failed to show that he was denied any opportunity to make his case and present a defense. Therefore, we find no denial of procedural due process in this case. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV by Fischer, J., Goodman, C.J. and Wiseman, P.J., concur. Tuesday, April 5, 2016 113,045 — In re the Marriage of: Paul Tremoulet Rivers, Petitioner/Appellant, v. Catharine S. Taylor, Respondent/Appellee. Paul Tremoulet Rivers (Father) appeals from a Decree of Dissolution of Marriage of the District Court of Oklahoma County, Hon. Barry L. Hafar, Trial Judge, alleging the trial court erred in (1) awarding Catharine S. Taylor (Mother) sole custody of the couple’s daughter, allowing Mother to relocate the child to Michigan, and limiting Father’s visitation, (2) calculating child support and allocating child-related expenses, (3) awarding Mother her separate property, and (4) failing to award Father “equitable restitution” for monies invested in Mother’s home. Regarding Father’s objections to custody and relocation of the minor child, we find no error and affirm the trial court’s award of sole custody to Mother and its finding that Mother may relocate with the child outside Oklahoma. Vol. 87 — No. 13 — 5/14/2016 As to Father’s visitation, we reverse the summer visitation schedule after the child begins kindergarten and remand this issue to the trial court to modify the visitation schedule to reflect the same summer visitation schedule provided before the child begins kindergarten. As to child support and child-related expenses, we agree that the trial court failed to specify the incomes of the parties it used to determine child support. We cannot determine how the trial court arrived at the child support amount because no child support computation form was included in the appellate record. Without the court’s child support computation form, we cannot review the propriety of the trial court’s decision on child support and the allocation of child-related expenses. We reverse the portions of the decree regarding child support and child-related expenses and remand for compliance with the statutory requirements set forth in 43 O.S.2011 § 120. As to the award of separate property to Mother, we conclude the evidence supports the trial court’s decision, and we affirm. As to Father’s claim for “equitable restitution,” regarding Mother’s home, we find nothing in the appellate record establishes the value of the home at the time of marriage. Without this evidence, we cannot determine the amount of any increase in the value of the home attributable to Father’s skill or efforts. The trial court’s decision on this issue is affirmed. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Wiseman, P.J.; Goodman, C.J., and Fischer, J., concur. Monday, April 11, 2016 113,860 — Teresa Saunders and Michael Lowell, Individuals and Next of Kin of Betty Lowell, Deceased, Plaintiffs/Appellants, vs. Mangum Nursing Center, LLC, d/b/a Grace Living Center – Mangum; Don Greiner, Individually, Amity Care, LLC, Defendants/Appellees. Appeal from an order of the District Court of Oklahoma County, Hon. Thomas E. Prince, Trial Judge, granting Don Greiner’s motion to dismiss and certifying the dismissal for appeal. Betty Lowell was a nursing home resident at Grace Living Center in Mangum, Oklahoma, and Plaintiffs allege she died as a result of the Defendants’ wrongful conduct. Don Greiner was sued in his individual capacity as an Officer and President/Manager of the facility. Greiner filed a motion to dismiss, contending Plaintiffs cannot sue an officer except in compliance with 12 O.S. Supp. 2013 § 682. The trial The Oklahoma Bar Journal 1001 court granted the motion and certified its order for immediate appeal pursuant to 12 O.S. § 994. We conclude it was error to apply the 2013 amendments to these claims and to grant Greiner’s motion to dismiss. And from the face of the amended petition, Plaintiffs claim relief against Greiner based on his own conduct. Whether the evidence supports this claim is not before us. Plaintiffs have stated a legally cognizable claim based on their assertion that Greiner’s own participation in the affairs of the nursing home directly caused Plaintiffs’ damages. We reverse the trial court’s order granting Greiner’s motion to dismiss and remand for further proceedings consistent with the Opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV, by Wiseman, P.J.; Fischer, J., and Thornbrugh, J. (sitting by designation), concur. Tuesday, April 12, 2016 112,640 — Joe Harwood, Petitioner/Appellee, v. Deborah Ann Harwood, Respondent/ Appellant. Appeal from an order the District Court of Delaware County, Hon. Barry V. Denney, Trial Judge, denying Deborah Ann Harwood’s (Wife) motion to vacate Decree of Dissolution of Marriage. Wife filed a motion to vacate within 30 days of the trial court’s order declaring the parties divorced, thus invoking the court’s termtime authority. In denying Wife’s term-time motion, the trial court abused its discretion by requiring Wife to prove a 12 O.S.2011, § 651 ground in support of her motion. The order denying Wife’s motion to vacate the Decree of Dissolution of Marriage and Property Settlement Agreement is therefore reversed and the matter remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Goodman, C.J.; Wiseman, P.J., and Fischer, J., concur. Wednesday, April 20, 2016 113,720 — Carol K. Rooney, on behalf of herself and those similarly situated, Plaintiff/Appellant, vs. City of Oklahoma City, Oklahoma, a Municipal Corporation, Defendant, and CoxCom, LLC, a Delaware limited liability company, f/k/a CoxCom, Inc., f/k/a Cox Cable Oklahoma City, Inc., Defendants/Appellees. Appeal from an order of the District Court of Oklahoma County, Hon. Tracy Schumacher, Trial Judge, denying Plaintiff’s motion for class certification. Rooney, a Cox cable subscriber, 1002 filed suit individually and on behalf of all other persons similarly situated against the City of Oklahoma City and Cox claiming they violated Oklahoma law in their assessment and collection of a franchise fee because it emanates from the City’s police power to regulate the operation of cable television systems, the fee bears no relationship to the cost of regulating the franchise, the City has not even calculated that cost, and the fee is therefore no more than a prohibited indirect tax. Rooney moved to certify a class of plaintiffs pursuant to 12 O.S.2011 § 2023. After substantial briefing by all parties and a hearing on the issue, the trial court denied Rooney’s motion to certify. We conclude the trial court’s findings of fact and conclusions of law as contained in its order more than adequately explain the basis for its decision. After a thorough review of the record and applicable law, we see no error in the decision reached by the trial court and affirm pursuant to Oklahoma Supreme Court Rule 1.202(d), 12 O.S.2011, ch. 15, app. 1. SUMMARILY AFFIRMED UNDER RULE 1.202(d). Opinion from the Court of Civil Appeals, Division IV, by Wiseman, P.J.; Goodman, C.J., and Fischer, J., concur. ORDERS DENYING REHEARING (Division No. 1) Tuesday, March 22, 2016 113,361 — Susan Manchester, Trustee of Bankruptcy Estate of Marissa Barker, Plaintiff/ Appellee, vs. Southern Hills Residences, LLC d.b.a Seminole Ridge Apartments; D&S Management, Inc.; and Jason Lynne Hoover, Defendants/Appellants. Defendants/Appellants’ Petitions for Rehearing filed March 3, 2016 are DENIED. Wednesday, March 30, 2016 113,742 — Charlene Burris and David Houck, Plaintiffs/Appellees, vs. Jennifer A. Kelley and Rickey D. Kelley, wife and husband, Defendants/Appellants, and Treasurer of Murray County, Oklahoma and Board of County Commissioners of Murray County, Oklahoma, Defendants. Defendants/Appellants’ Petition for Rehearing filed February 25, 2016 is DENIED. 113,163 — In Re the Marriage of Jeanett Lupton Leibold and William Leibold: Jeanett Lupton Leibold, Petitioner/Appellant, vs. William Leibold, Respondent/Appellee. Petitioner/ Appellant’s Petition for Rehearing filed March 17, 2016 is DENIED. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 ORDERS DENYING REHEARING (Division No. 1) Thursday, April 7, 2016 112,476 (comp. w/113,472) — In Re: the Marriage of Melissa Beth Fell and Travis Knight Anderson, Melissa Beth Fell, Petitioner/Appellee, vs. Travis Knight An-derson, Respondent/ Appellant. Respondent/Appellant’s Petition for Rehearing filed March 31, 2016 is DENIED. 113,472 (comp. w/112,476) — In Re: the Marriage of Melissa Beth Fell and Travis Knight Anderson, Melissa Beth Fell, Petitioner/Appellee, vs. Travis Knight An-derson, Respondent/ Appellant. Respondent/Appellant’s Petition for Rehearing filed March 31, 2016 is DENIED. 114,037 — Cobblestone Creek Management Company, LLC, Plaintiff, vs. Kenneth Komiske and Teri Komiske, Defendants, and City of Norman, a municipal corporation, Plaintiff, vs. Kenneth Komiske, Teri Komiske, Kelly J. Henderson, Cobblestone Creek Management Company, and Cobblestone Event Center, LLC, Defendants, and Roy Donovan, Petra Klein, Evgeny Fedorovich, Darrel E. Schreiner, Evelyn F. Schreiner, Theunis Frederick Steyn, Elizabeth Steyn, Sinyu Dai and Xuguang Wang, Plaintiffs/Counter-Defendants, and Ernest B. Helin, Karen J. Helin, Ronald H. James, Barbara Ann James, Kenneth Komiske, Teri Komiske, Larry L. McHughes, Trustee of the Larry L. McHughes Revocable Trust, Jesse Smith, Abby Smith, Chad T. Thrailkill and April A. Thrailkill, Plaintiffs/Counter-Defendants/Appellants, vs. Cobblestone Creek Management Company, LLC, Larry Denny and Michael C. Rainer, Defendants/Counter-Claimants/Appellees, and Cobblestone Creek Golf Club, LLC, Cobblestone Creek Homeowners Association, Cobblestone Event Center, Wayne Veal, Tracy Veal, Anna Moore and Thad Moore, Defendants. Appellee Cobblestone Creek Management Company, LLC’s Petition for Rehearing filed March 31, 2016, is DENIED. Vol. 87 — No. 13 — 5/14/2016 (Division No. 2) Wednesday, April 13, 2016 113,626 — Gerlad Williams, Plaintiff/Appellee, vs. Johnny Manos, Defendant/Appellant. Appellant’s Petition for Rehearing is hereby DENIED. Wednesday, April 20, 2016 114,579 — Stacy Caffey, an individual, Plaintiff/Appellant, vs. BH Media Holdings, Inc., d/b/a Tulsa World, a Foreign for Profit Business Corporation, Defendant/Appellee and Kum & Go, L.C., d/b/a Kum & Go #0867, a Foreign Limited Liability Corporation; and The City of Tulsa, Defendants. Appellee’s Petition for Rehearing is hereby DENIED. (Division No. 3) Tuesday, April 26, 2016 113,234 — In re the Marriage of Roy Paul Dorsey and Betty Lillian Dorsey: Roy Paul Dorsey, Petitioner/Appellant, vs. Betty Lillian Dorsey, Respondent/Appellee. Appellee’s Petition for Rehearing and Brief in Support, filed April 13, 2016, is DENIED. (Division No. 4) Monday, April 25, 2016 113,047 — The Bank of New York Mellon f/k/a The Bank of New York, not in its individual capacity but solely as Trustee for the Benefit of the Certificate-holders of the CWABS, Inc., Asset-backed Certificates, Series 2005BCS, Plaintiff/Appellee, vs. William L. Howard a/k/a William Lee Howard, Defendant/ Appellant, and Jane Doe, Spouse of William Howard, a/k/a William Lee Howard, if married and Occupants of the Premises, Defendants. Appellant’s Petition for Rehearing is hereby DENIED. Tuesday, April 26, 2016 112,988 — Wells Fargo Bank, National Association, Plaintiff/Appellee, vs. Apache Tribe of Oklahoma, Defendant/Appellant. Appellant’s Petition for Rehearing is hereby DENIED. The Oklahoma Bar Journal 1003 CLASSIFIED ADS SERVICES OFFICE SPACE 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]. FOR SALE/ LEASE LUXURY LAW OFFICE BUILDING 6,531 sq. ft. 2417 E. Skelly Drive in the heart of Tulsa, OK, available for immediate occupancy. Fully furnished, conference room, reception area and secretary cubicles. 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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 BRIEF WRITING, APPEALS, RESEARCH AND DISCOVERY SUPPORT. Eighteen years experience in civil litigation. Backed by established firm. Neil D. Van Dalsem, Taylor, Ryan, Minton, 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. CONTRACT LEGAL SERVICES – 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. 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Call 405-570-4550. LUXURY OFFICE SPACE FOR LEASE – One or two offices for lease in S. OKC, 9905 S. Pennsylvania. Lease includes use of reception area, conference rooms, receptionist, kitchen, copier, fax and high speed Internet. One office is $900, two offices is $1600. If interested, please contact Courtney at 405-692-7676 or kyle@ bmclawok.com. OFFICE SHARE ENID ATTORNEY SEEKS ATTORNEY FOR OFFICE SHARING, case overflow or associate position. Salary is an option. No experience required. Negotiable rent. Copier/fax machine, Internet, supplies and office staff are included in rent. Experienced attorney available for assistance. Submit resumes or questions to clerk@ rnsingletonlaw.com or P.O. Box 1587 Enid, OK 73702. POSITIONS AVAILABLE ATTORNEY POSITION AVAILABLE IN NORTH/ CENTRAL OKLAHOMA. Large criminal defense caseload. 1-5 years of criminal defense experience required. Base pay of $3,500 per month with paid vacation. Opportunities for additional income available. Please send a writing sample and resume to “Box EE,” Oklahoma Bar Association, P.O Box 53036, Oklahoma City, OK 73152. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 POSITIONS AVAILABLE POSITIONS AVAILABLE NORMAN LAW FIRM IS SEEKING sharp, motivated attorneys for fast-paced transactional work. Members of our growing firm enjoy a team atmosphere and an energetic environment. Attorneys will be part of a creative process in solving tax cases, handle an assigned caseload, and will be assisted by an experienced support staff. Our firm offers health insurance benefits, paid vacation, paid personal days, and a 401K matching program. Applicants need to be admitted to practice law in Oklahoma. No tax experience necessary. Submit cover letter and résumé to [email protected]. SOUTH TULSA LAW FIRM HAS AN OPENING FOR A PARALEGAL. We are looking for a candidate that has background experience in insurance defense; trucking experience would be a plus. The duties involve the management of all of the documents related to the defense of personal injury cases. The ability to request, organize and review medical records is a must. The duties also include preparing matters for significant events such as a deposition, mediation or trial. Candidate should have excellent organization skills. Please send your resume to [email protected]. DOWNTOWN LITIGATION FIRM SEEKING ATTORNEY with 3-7 years’ experience. Excellent research and writing skills required. Salary competitive and commensurate with experience. Send resume, writing sample and references to Brown & Gould, 136 NW 10th, Ste. 200, Oklahoma City, OK 73103. THE OKLAHOMA BAR ASSOCIATION HEROES program is looking for several volunteer attorneys. The need for FAMILY LAW ATTORNEYS is critical, but attorneys from all practice areas are needed. All ages, all counties. Gain invaluable experience, or mentor a young attorney, while helping someone in need. For more information or to sign up, contact Gisele Perryman, 405-416-7086 or [email protected]. SEEKING ASSISTANT DISTRICT ATTORNEY FOR LOGAN COUNTY DISTRICT ATTORNEY’S OFFICE located in Guthrie. Minimum 5 years major crimes jury trial experience required. Prosecution experience preferred. Must have strong work ethic and ability to professionally work with partner agencies, law enforcement and the bar. Send resume and contact information to [email protected]. CONNER & WINTERS, A REGIONAL FULL SERVICE FIRM, SEEKS ASSOCIATE ATTORNEY with 2 to 4 years of experience for a full-time litigation position in Oklahoma City. The ideal candidate will possess excellent legal writing and research skills, a willingness to work closely with senior attorneys while independently taking responsibility for challenging projects and cases in a variety of energy related industries. This unique position will be part of a dynamic litigation team responsible for complex, multi-party cases involving unique and strategic client issues in multiple states. Creativity and a strong academic background will contribute to the team’s analysis and implementation of critical key solutions in major cases. This partnership track position is immediately available and provides top of the market compensation and benefits. Applicants should submit resume, law school transcript and writing sample under cover letter to “Recruiting Coordinator” via email to OKCRecruiting@ cwlaw.com. All applications are confidential. FULL TIME LITIGATION LEGAL ASSISTANT FOR SMALL NORMAN FAMILY LAW FIRM. Well organized, self-motivated, excellent work ethic, exceptional tech and communication skills required. Salary commensurate with experience and education. Benefits available; M-F and occasional evenings/or weekends when caseload requires. Send resume to [email protected]. PARRISH DEVAUGHN INJURY LAWYERS IS SEEKING TO ADD AN ASSOCIATE with a passion for personal injury cases to our team. Visit our website at pepperwins.com to learn more about us. Please email your resume to [email protected]. Vol. 87 — No. 13 — 5/14/2016 STILLWATER CITY ATTORNEY’S OFFICE seeks applications from qualified individuals to fill an entry level assistant city attorney position. This attorney will be responsible for transactional work, special projects and some board/committee representation. Strong communication, writing and research skills are required. Recent law school graduates and newly licensed attorneys are encouraged to apply. Starting salary is competitive with Oklahoma City and Tulsa area markets and includes a generous city employee benefits package. Relocation benefits may also be offered. Send resume, short writing sample and references by June 1, 2016, to Kerry Lee, Human Resources Department, City of Stillwater, P.O. Box 1449, Stillwater, OK 74076 or email to [email protected]. ATTORNEY POSITION IN SOUTH OKC FIRM. We are looking for one or two highly motivated attorneys to help assist with personal injury, criminal defense and family law case load as well as any other areas the attorney is versed in. Pay can be based on percentage of work, salary or combination of both. Send resume to [email protected]. TWO ATTORNEY POSITIONS OPEN FOR WORK IN THE OKLAHOMA CITY metropolitan area beginning July 1, 2016. Moderate to heavy criminal defense caseload. Experienced preferred, but not mandatory. Base pay of $3,500 per month with opportunity for additional income available. Office space, secretary and malpractice insurance provided. Additional benefits not provided. Include a letter of interest and writing sample with your resume. Send to “Box K,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. LONG-STANDING TULSA LITIGATION FIRM WITH DIVERSE CIVIL PRACTICE seeks an attorney with 3 to 10 years of experience. Compensation DOE with excellent benefits. Applications kept in strict confidence. Send resume, writing sample and references to [email protected]. The Oklahoma Bar Journal 1005 POSITIONS AVAILABLE POSITIONS AVAILABLE TULSA LAW FIRM SEEKS STAFF ATTORNEY OR ASSOCIATE to lead growing personal injury division. Experienced PI practitioners and newly licensed attorneys with PI internships are encouraged to inquire. Negotiable compensation includes base salary plus performance incentives. All inquiries are confidential. Send replies to “Box NN, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. MCAFEE & TAFT IS SEEKING AN ASSOCIATE ATTORNEY WITH 1-3 YEARS EXPERIENCE to join its Litigation Practice Group in its TULSA office. Ideal candidates will have experience in research and writing, fact investigation, hearings, depositions and case evaluation, and will be highly motivated and able to manage a diverse caseload of civil litigation matters. Top academic performance, strong writing and analytical skills, interpersonal skills and the ability to work in a team environment are required. Please submit resume, law school transcript and a writing sample to Craig Buchan at McAfee & Taft A Professional Corporation, 1717 S. Boulder, Suite 900, Tulsa, OK 74119. All inquiries will be treated confidentially. No emails or phone calls, please. MCAFEE & TAFT IS SEEKING AN ASSOCIATE ATTORNEY WITH 1-3 YEARS EXPERIENCE to join its Litigation Practice Group in its OKLAHOMA CITY office. Ideal candidates will have experience in research and writing, fact investigation, hearings, depositions and case evaluation, and will be highly motivated and able to manage a diverse caseload of civil litigation matters. Top academic performance, strong writing and analytical skills, interpersonal skills and the ability to work in a team environment are required. Please submit resume, law school transcript, and a writing sample to Rodney Hunsinger at McAfee & Taft A Professional Corporation, Two Leadership Square, 10th Floor, 211 N. Robinson, Oklahoma City, OK 73102. All inquiries will be treated confidentially. No emails or phone calls, please. THE OKLAHOMA DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES (ODMHSAS) IS RECRUITING FOR AN ASSISTANT GENERAL COUNSEL III. This position performs professional legal work, which includes representing the agency in court and administrative proceedings, performing legal research and advising the agency regarding a variety of legal matters. Candidates must obtain a J.D. from an ABA accredited law school and be a member in good standing with the Oklahoma Bar, with a minimum of 6 years of experience in practicing law. Preference may be given to applicants with experience in civil and administrative litigation and for individuals with experience in representing governmental entities. Preference may also be given for individuals with experience in the practice of healthcare, including mental health law, employment or administrative law. Applicants must be willing and able to fulfill all job related travel normally associated with this position. The position is in Oklahoma City and the annual salary is $70,000. ODMHSAS offers excellent benefit and retirement packages; reference job title #2016 - 58 CO and apply to address ODMHSAS-Human Resources, 2401 NW 23rd, Suite 85, OKC, OK 73107 or [email protected] with a copy of your most recent performance evaluation. Reasonable accommodation to individuals with disabilities may be provided upon request. EOE Application period: 05/13/2016 – 06/10/2016. 1006 FAST-PACED OKC INJURY FIRM SEEKS ASSOCIATE ATTORNEY. Ideal candidate will possess 1 - 5 years of experience in personal injury and/or insurance defense. We are looking for someone who is hard-working, highly-organized and able to work independently. Offering competitive pay with excellent income potential. Please submit resume and writing sample to “Box BB,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. AV RATED DOWNTOWN OKC INSURANCE DEFENSE FIRM seeks associate with 7 to 10 years litigation experience in bad faith/civil litigation. Candidate should be self-motivated, detail oriented and have strong research and writing skills. The primary duties of the position will involve briefing and written discovery. Salary and benefits commensurate with experience. Send replies to “Box GG,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. POSITIONS WANTED ATTORNEY SEEKING A PART-TIME POSITION in the Tulsa, Owasso or surrounding area. Extensive experience in preparing Supplemental and Division Order Title Opinions. Experience in preparing wills and trusts. Available to work in your office or offsite. Call Sandra at 918-798-6655. LOOKING TO PURCHASE LOOKING TO EITHER PURCHASE A FIRM/BOOK OF BUSINESS OR A PARTNERSHIP in Oklahoma City or Tulsa. This could be a great opportunity for someone looking to retire, move or switch careers. Also, I have extensive experience in civil litigation and could compliment your area of practice if you consistently have clients looking for a civil/trial attorney. Please contact me at [email protected]. All inquiries will be kept strictly confidential. The Oklahoma Bar Journal Vol. 87 — No. 13 — 5/14/2016 YOU MAY EARN UNLIMITED HOURS FOR WEBCAST ENCORES Wed., May 18 @ 9:00 a.m. The Art & Science of Successful Settlements and Deals: EXPERTS TELL ALL - Scenario #1: Family Partnership Dispute (1 / 0 MCLE) Wed., May 18 @ 10:15 a.m. The Art & Science of Successful Settlements and Deals: EXPERTS TELL ALL - Scenario #2: The EXPE Business Sale (1 / 0 MCLE) Wed., May 18 @ 11:30 a.m. The Art & Science of Successful Settlements and Deals: EXPERTS TELL ALL - Scenario #3: Personal Injury Matter (1 / 0 MCLE) Thurs., May 19 @ 2 p.m. Reporting Requirements under the Affordable Care Act: You Need to Know File Forms 1094-C and 1095-C Tues., May 24 @ 3 p.m. Reporting Requirements under the Affordable Care Act: What You Need to Know File Forms 1094-C and 1095-C Wed., May 25 @ 9:00 a.m. The Art & Science of Successful Settlements and Deals: EXPERTS TELL ALL - Scenario #1: Family EXPE Partnership Dispute (1 / 0 MCLE) Wed., May 25 @ 10:15 a.m. The Art & Science of Successful Settlements and Deals: EXPERTS TELL ALL - Scenario #2: The Business Sale (1 / 0 MCLE) Wed., May 25 @ 11:30 a.m. The Art & Science of Successful Settlements and Deals: EXPERTS TELL ALL - Scenario #3: Personal Injury Matter (1 / 0 MCLE) To register go to: www.okbar.org/members/CLE/WebcastEncore Vol. 87 — No. 13 — 5/14/2016 The Oklahoma Bar Journal 1007 EQUITY BIG CHANGE IN START-UP FINANCING AND WHAT IT MEANS TO YOUR CLIENTS Co-sponsored by the Business & Corporate Law Section May 20, 2016, 9 a.m. - 4:10 p.m. OKLAHOMA BAR CENTER, OKC Speaker: Clifford R. Encino, Fairfield, Connecticut Cli AVAI LA BL E 7.5/1 In this entertaining and fast-paced program, a leading venture attorney, entrepreneurship expert and author of “The Crowdfunding Handbook” will address the practical issues raised by the JOBS Act, the questions your clients will raise about crowdfunded offerings of securities, and the role of counsel in facilitating this “brave new world” of capital formation. Each participant will also receive a copy of Cliff Ennico’s book, The Crowdfunding Handbook: Raise Money for Your Small Business or Start-Up with Equity Funding Portals. $225 for early-bird registrations with payment received at least four full business days prior to the seminar date; $250 for registrations with payment received within four full business days of the seminar date. Walk-ins $275. To receive a $10 live program discount register online at www.okbar.org/members/cle. The program will also be webcast (pricing varies). OBA Business and Corporate Law Section members will receive an $85 discount! Program approved for 7.5 MCLE credits including 1 ethics. For more information go to: www.okbar.org/members/CLE